CUSTODIAN AGREEMENT
AGREEMENT made as of this 13th day of October, 1999,
between the Xxxxx Xxxxxx Investment Trust, Massachusetts
business trust (the "Fund"), and INVESTORS BANK & TRUST
COMPANY, a Massachusetts trust company (the "Bank").
The Fund, an open-end management investment company,
on behalf of each of the series listed on Appendix A hereto
(as such Appendix A may be amended from time to time) (each
a "Portfolio" and collectively, the "Portfolios"), desires
to place and maintain all of its portfolio securities and
cash in the custody of the Bank. The Bank has at least the
minimum qualifications required by Section 17(f)(1) of the
Investment Company Act of 1940, as amended (the "1940 Act")
to act as custodian of the portfolio securities and cash of
the Fund, and has indicated its willingness to so act,
subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and
of the mutual agreements contained herein, the parties
hereto agree as follows:
1. Bank Appointed Custodian. The Fund hereby
appoints the Bank as custodian of its portfolio securities
and cash delivered to the Bank as hereinafter described and
the Bank agrees to act as such upon the terms and conditions
hereinafter set forth. For the services rendered pursuant
to this Agreement the Fund agrees to pay to the Bank, solely
from the assets of the Portfolios, the fees set forth on
Appendix B hereto.
2. Definitions. Whenever used herein, the terms
listed below will have the following meaning:
2.1 Authorized Person. Authorized Person will
mean any of the persons duly authorized to give Proper
Instructions or otherwise act on behalf of the Fund by
appropriate resolution of its Board, and set forth in a
certificate as required by Section 4 hereof.
2.2 Board. Board will mean the Board of Trustees
of the Fund.
2.3 Security. The term security as used herein
will have the same meaning assigned to such term in the
Securities Act of 1933, as amended, including, without
limitation, any note, stock, treasury stock, bond,
debenture, evidence of indebtedness, certificate of interest
or participation in any profit sharing agreement,
collateral-trust certificate, preorganization certificate or
subscription, transferable share, investment contract,
voting-trust certificate, certificate of deposit for a
security, fractional undivided interest in oil, gas, or
other mineral rights, any put, call, straddle, option, or
privilege on any security, certificate of deposit, or group
or index of securities (including any interest therein or
based on the value thereof), or any put, call, straddle,
option, or privilege entered into on a national securities
exchange relating to a foreign currency, or, in general, any
interest or instrument commonly known as a "security", or
any certificate of interest or participation in, temporary
or interim certificate for, receipt for, guarantee of, or
warrant or right to subscribe to, or option contract to
purchase or sell any of the foregoing, and futures, forward
contracts and options thereon.
2.4 Portfolio Security. Portfolio Security will
mean any security owned by the Fund.
2.5 Officers' Certificate. Officers' Certificate
will mean, unless otherwise indicated, any request,
direction, instruction, or certification in writing signed
by any two Authorized Persons of the Fund.
2.6 Book-Entry System. Book-Entry System shall
mean the Federal Reserve-Treasury Department Book Entry
System for United States government, instrumentality and
agency securities operated by the Federal Reserve Bank, its
successor or successors and its nominee or nominees.
2.7 Depository. Depository shall mean The
Depository Trust Company ("DTC"), a clearing agency
registered with the Securities and Exchange Commission under
Section 17A of the Securities Exchange Act of 1934, as
amended ("Exchange Act"), its successor or successors and
its nominee or nominees. The term "Depository" shall further
mean and include any other person authorized to act as a
depository under the 1940 Act, its successor or successors
and its nominee or nominees, specifically identified in a
certified copy of a resolution of the Board.
2.8 Proper Instructions. Proper Instructions
shall mean (i) instructions (which may be continuing
instructions) regarding the purchase or sale of Portfolio
Securities, and payments and deliveries in connection
therewith, given by an Authorized Person, such instructions
to be given in such form and manner as the Bank and the Fund
shall agree upon from time to time, and (ii) instructions
(which may be continuing instructions) regarding other
matters signed or initialed by an Authorized Person. Oral
instructions will be considered Proper Instructions if the
Bank reasonably believes them to have been given by an
Authorized Person. The Fund shall cause all oral
instructions to be promptly confirmed in writing. The Bank
shall act upon and comply with any subsequent Proper
Instruction which modifies a prior instruction and the sole
obligation of the Bank with respect to any follow-up or
confirmatory instruction shall be to make reasonable efforts
to detect any discrepancy between the original instruction
and such confirmation and to report such discrepancy to the
Fund. The Fund shall be responsible, at the Fund's expense,
for taking any action, including any reprocessing, necessary
to correct any such discrepancy or error, and to the extent
such action requires the Bank to act, the Fund shall give
the Bank specific Proper Instructions as to the action
required. Upon receipt by the Bank of an Officers'
Certificate as to the authorization by the Board accompanied
by a detailed description of procedures approved by the
Fund, Proper Instructions may include communication effected
directly between electro-mechanical or electronic devices
provided that the Board and the Bank agree in writing that
such procedures afford adequate safeguards for the Fund's
assets.
3. Separate Accounts. If the Fund has more than one
portfolio, the Bank will segregate the assets of each
portfolio to which this Agreement relates into a separate
account for each such portfolio containing the assets of
such portfolio (and all investment earnings thereon).
Unless the context otherwise requires, any reference in this
Agreement to any actions to be taken by the Fund shall be
deemed to refer to the Fund acting on behalf of one or more
of its portfolios, any reference in this Agreement to any
assets of the Fund, including, without limitation, any
portfolio securities and cash and earnings thereon, shall be
deemed to refer only to assets of the applicable portfolio,
any duty or obligation of the Bank hereunder to the Fund
shall be deemed to refer to duties and obligations with
respect to such individual portfolio and any obligation or
liability of the Fund hereunder shall be binding only with
respect to such individual portfolio, and shall be
discharged only out of the assets of such series.
4. Certification as to Authorized Persons. The
Secretary or Assistant Secretary of the Fund will at all
times maintain on file with the Bank his or her
certification to the Bank, in such form as may be acceptable
to the Bank, of (i) the names and signatures of the
Authorized Persons and (ii) the names of the members of the
Board, it being understood that upon the occurrence of any
change in the information set forth in the most recent
certification on file (including without limitation any
person named in the most recent certification who is no
longer an Authorized Person as designated therein), the
Secretary or Assistant Secretary of the Fund will within a
reasonable period sign a new or amended certification
setting forth the change and the new, additional or omitted
names or signatures. Until such time as the Bank actually
receives a new or amended certification from the Fund, the
Bank will be entitled to rely and act upon the most recent
certification received by the Bank. The Bank will be
entitled to rely and act upon any Officers' Certificate
given to it by the Fund which has been signed by Authorized
Persons named in the most recent certification received by
the Bank.
5. Custody of Cash. As custodian for the Fund, the
Bank will open and maintain a separate account or accounts
in the name of the Fund or in the name of the Bank, as
Custodian of the Fund, and will deposit to the account of
the Fund all of the cash of the Fund, except for cash held
by a subcustodian appointed pursuant to Sections 14.2 or
14.3 hereof, including borrowed funds, delivered to the
Bank, subject only to draft or order by the Bank acting
pursuant to the terms of this Agreement. Pursuant to the
Bank's internal policies regarding the management of cash
accounts, the Bank may segregate certain portions of the
cash of the Fund into a separate savings deposit account
upon which the Bank reserves the right to require seven (7)
days notice prior to withdrawal of cash from such an
account. Upon receipt by the Bank of Proper Instructions
(which may be continuing instructions) or in the case of
payments for redemptions and repurchases of outstanding
shares of common stock of the Fund, notification from the
Fund's transfer agent as provided in Section 7, requesting
such payment, designating the payee or the account or
accounts to which the Bank will release funds for deposit,
and stating that it is for a purpose permitted under the
terms of this Section 5, specifying the applicable
subsection, the Bank will make payments of cash held for the
accounts of the Fund, insofar as funds are available for
that purpose, only as permitted in subsections 5.1-5.9
below.
5.1 Purchase of Securities. The Bank will make
payments of cash held for the accounts of the Fund upon the
purchase of securities for the Fund, against contemporaneous
receipt of such securities by the Bank or against delivery
of such securities to the Bank in accordance with generally
accepted settlement practices and customs in the
jurisdiction or market in which the transaction occurs
registered in the name of the Fund or in the name of, or
properly endorsed and in form for transfer to, the Bank, or
a nominee of the Bank, or receipt for the account of the
Bank pursuant to the provisions of Section 6 below, each
such payment to be made at the purchase price shown on a
broker's confirmation (or transaction report in the case of
Book Entry Paper (as that term is defined in Section 6.6
hereof)) of purchase of the securities received by the Bank
before such payment is made, as confirmed in the Proper
Instructions received by the Bank before such payment is
made.
5.2 Redemptions. The Bank will make payments of
cash held for the accounts of the Fund in such amount as may
be necessary for the repurchase or redemption of common
shares of the Fund offered for repurchase or redemption in
accordance with Section 7 of this Agreement.
5.3 Distributions and Expenses of Fund. The Bank
will make payments of cash held for the accounts of the Fund
for the payment on the account of the Fund of dividends or
other distributions to shareholders as may from time to time
be declared by the Board, interest, taxes, management or
supervisory fees, distribution fees, fees of the Bank for
its services hereunder and reimbursement of the expenses and
liabilities of the Bank as provided hereunder, fees of any
transfer agent, fees for legal, accounting, and auditing
services, or other operating expenses of the Fund.
5.4 Payment in Respect of Securities. The Bank
will make payments of cash held for the accounts of the Fund
for payments in connection with the conversion, exchange or
surrender of Portfolio Securities or securities subscribed
to by the Fund held by or to be delivered to the Bank.
5.5 Repayment of Loans. The Bank will make
payments of cash held for the accounts of the Fund to repay
loans of money made to the Fund, but, in the case of final
payment, only upon redelivery to the Bank of any Portfolio
Securities pledged or hypothecated therefor and upon
surrender of documents evidencing the loan;
5.6 Repayment of Cash. The Bank will make payments
of cash held for the accounts of the Fund to repay the cash
delivered to the Fund for the purpose of collateralizing the
obligation to return to the Fund certificates borrowed from
the Fund representing Portfolio Securities, but only upon
redelivery to the Bank of such borrowed certificates.
5.7 Foreign Exchange Transactions.
(a) The Bank will make payments of cash held
for the accounts of the Fund for payments in connection with
foreign exchange contracts or options to purchase and sell
foreign currencies for spot and future delivery
(collectively, "Foreign Exchange Agreements")which may be
entered into by the Bank on behalf of the Fund upon the
receipt of Proper Instructions, such Proper Instructions to
specify the currency broker or banking institution (which
may be the Bank, or any other subcustodian or agent
hereunder, acting as principal) with which the contract or
option is made, and the Bank shall have no duty with respect
to the selection of such currency brokers or banking
institutions with which the Fund deals or for their failure
to comply with the terms of any contract or option.
(b) In order to secure any payments in
connection with Foreign Exchange Agreements which may be
entered into by the Bank pursuant to Proper Instructions,
the Fund agrees that the Bank shall have a continuing lien
and security interest, to the extent of any payment due
under any Foreign Exchange Agreement, in and to any property
at any time held by the Bank for the Fund's benefit or in
which the Fund has an interest and which is then in the
Bank's possession or control (or in the possession or
control of any third party acting on the Bank's behalf).
The Fund authorizes the Bank, in the Bank's sole discretion,
at any time to charge any such payment due under any Foreign
Exchange Agreement against any balance of account standing
to the credit of the Fund on the Bank's books.
5.8 Other Authorized Payments. The Bank will make
payments of cash held for the accounts of the Fund for other
authorized transactions of the Fund, or other obligations of
the Fund incurred for proper Fund purposes; provided that
before making any such payment the Bank will also receive a
certified copy of a resolution of the Board signed by an
Authorized Person (other than the Person certifying such
resolution) and certified by its Secretary or Assistant
Secretary, naming the person or persons to whom such payment
is to be made, and either describing the transaction for
which payment is to be made and declaring it to be an
authorized transaction of the Fund, or specifying the amount
of the obligation for which payment is to be made, setting
forth the purpose for which such obligation was incurred and
declaring such purpose to be a proper corporate purpose.
5.9 Termination: The Bank will make payments of
cash held for the accounts of the Fund upon the termination
of this Agreement as hereinafter set forth pursuant to
Section 8 and Section 16 of this Agreement.
6. Securities.
6.1 Segregation and Registration. Except as
otherwise provided herein, and except for securities to be
delivered to any subcustodian appointed pursuant to Sections
14.2 or 14.3 hereof, the Bank as custodian will receive and
hold pursuant to the provisions hereof, in a separate
account or accounts and physically segregated at all times
from those of other persons, any and all Portfolio
Securities which may now or hereafter be delivered to it by
or for the account of the Fund. All such Portfolio
Securities will be held or disposed of by the Bank for, and
subject at all times to, the Proper Instructions of the Fund
pursuant to the terms of this Agreement. Subject to the
specific provisions herein relating to Portfolio Securities
that are not physically held by the Bank, the Bank will
register all Portfolio Securities (unless otherwise directed
by Proper Instructions or an Officers' Certificate), in the
name of a registered nominee of the Bank as defined in the
Internal Revenue Code of 1986, as amended (the "Code") and
any Regulations of the Treasury Department issued
thereunder, and will execute and deliver all such
certificates in connection therewith as may be required by
such laws or regulations or under the laws of any state.
The Fund will from time to time furnish to the
Bank appropriate instruments to enable it to hold or deliver
in proper form for transfer, or to register in the name of
its registered nominee, any Portfolio Securities which may
from time to time be registered in the name of the Fund.
6.2 Voting and Proxies. Neither the Bank nor any
nominee of the Bank will vote any of the Portfolio
Securities held hereunder, except in accordance with Proper
Instructions or an Officers' Certificate. The Bank will
execute and deliver, or cause to be executed and delivered,
to the Fund all notices, proxies and proxy soliciting
materials delivered to the Bank with respect to such
Securities, such proxies to be executed by the registered
holder of such Securities (if registered otherwise than in
the name of the Fund), but without indicating the manner in
which such proxies are to be voted.
6.3 Corporate Action. If at any time the Bank is
notified that an issuer of any Portfolio Security has taken
or intends to take a corporate action (a "Corporate Action")
that affects the rights, privileges, powers, preferences,
qualifications or ownership of a Portfolio Security,
including without limitation, liquidation, consolidation,
merger, recapitalization, reorganization, reclassification,
subdivision, combination, stock split or stock dividend,
which Corporate Action requires an affirmative response or
action on the part of the holder of such Portfolio Security
(a "Response"), the Bank shall notify the Fund promptly of
the Corporate Action, the Response required in connection
with the Corporate Action and the Bank's deadline for
receipt from the Fund of Proper Instructions regarding the
Response (the "Response Deadline"). The Bank shall forward
to the Fund via telecopier and/or overnight courier all
notices, information statements or other materials relating
to the Corporate Action promptly after receipt of such
materials by the Bank.
(a) The Bank shall act upon a required
Response only after receipt by the Bank of Proper
Instructions from the Fund no later than 5:00 p.m. on the
date specified as the Response Deadline and only if the Bank
(or its agent or subcustodian hereunder) has actual
possession of all necessary Securities, consents and other
materials no later than 5:00 p.m. on the date specified as
the Response Deadline.
(b) The Bank shall have no duty to act upon a
required Response if Proper Instructions relating to such
Response and all necessary Securities, consents and other
materials are not received by and in the possession of the
Bank on or prior to 5:00 p.m. on the date specified as the
Response Deadline. Notwithstanding the foregoing, the Bank
may, in its sole discretion, use its best efforts to act
upon a Response for which Proper Instructions and/or
necessary Securities, consents or other materials are
received by the Bank after 5:00 p.m. on the date specified
as the Response Deadline, it being acknowledged and agreed
by the parties that any undertaking by the Bank to use its
best efforts in such circumstances shall in no way create
any duty upon the Bank to complete such Response prior to
its expiration.
(c) In the event that the Fund notifies the
Bank of a Corporate Action requiring a Response and the Bank
has received no other notice of such Corporate Action, the
Response Deadline shall be 48 hours prior to the Response
expiration time set by the depository processing such
Corporate Action.
(d) Section 14.3(e) of this Agreement shall
govern any Corporate Action involving Foreign Portfolio
Securities held by a Selected Foreign Sub-Custodian.
6.4 Book-Entry System. Provided (i) the Bank has
received a certified copy of a resolution of the Board
specifically approving deposits of Fund assets in the Book-
Entry System, and (ii) for any subsequent changes to such
arrangements following such approval, the Board has reviewed
and approved the arrangement and has not delivered an
Officer's Certificate to the Bank indicating that the Board
has withdrawn its approval:
(a) The Bank may keep Portfolio Securities in
the Book-Entry System provided that such Portfolio
Securities are represented in an account ("Account") of the
Bank (or its agent) in such System which shall not include
any assets of the Bank (or such agent) other than assets
held as a fiduciary, custodian, or otherwise for customers;
(b) The records of the Bank (and any such
agent) with respect to the Fund's participation in the Book-
Entry System through the Bank (or any such agent) will
identify by book entry the Portfolio Securities which are
included with other securities deposited in the Account and
shall at all times during the regular business hours of the
Bank (or such agent) be open for inspection by duly
authorized officers, employees or agents of the Fund. Where
securities are transferred to the Fund's account, the Bank
shall also, by book entry or otherwise, identify as
belonging to the Fund a quantity of securities in a fungible
bulk of securities (i) registered in the name of the Bank or
its nominee, or (ii) shown on the Bank's account on the
books of the Federal Reserve Bank;
(c) The Bank (or its agent) shall pay for
securities purchased for the account of the Fund or shall
pay cash collateral against the return of Portfolio
Securities loaned by the Fund upon (i) receipt of advice
from the Book-Entry System that such Securities have been
transferred to the Account, and (ii) the making of an entry
on the records of the Bank (or its agent) to reflect such
payment and transfer for the account of the Fund. The Bank
(or its agent) shall transfer securities sold or loaned for
the account of the Fund upon
(i) receipt of advice from the Book-
Entry System that payment for securities sold or payment of
the initial cash collateral against the delivery of
securities loaned by the Fund has been transferred to the
Account; and
(ii) the making of an entry on the
records of the Bank (or its agent) to reflect such transfer
and payment for the account of the Fund. Copies of all
advices from the Book-Entry System of transfers of
securities for the account of the Fund shall identify the
Fund, be maintained for the Fund by the Bank and shall be
provided to the Fund at its request. The Bank shall send the
Fund a confirmation, as defined by Rule 17f-4 of the 1940
Act, of any transfers to or from the account of the Fund;
(d) The Bank will promptly provide the Fund
with any report obtained by the Bank or its agent on the
Book-Entry System's accounting system, internal accounting
control and procedures for safeguarding securities deposited
in the Book-Entry System;
(e) The Bank shall be liable to the Fund for
any loss or damage to the Fund resulting from the use of a
Book-Entry System to the extent such loss or damage is
solely the result of any gross negligence, willful
misfeasance or bad faith of the Bank or any of its agents,
directors, officers or employees or of the reckless
disregard by the Bank or any of its agents, directors,
officers or employees of its duty to use commercially
reasonable efforts to enforce such rights as it may have
against the Book-Entry System. At the election of the Fund,
the Fund shall be substituted for the Bank in any claim
against the Book-Entry System or any other person which the
Bank may have as a consequence of any loss or damage if and
to the extent the Fund has not been made whole for any loss
or damage.
6.5 Use of a Depository. Provided (i) the Bank
has received a certified copy of a resolution of the Board
specifically approving deposits in DTC or other such
Depository and (ii) for any subsequent changes to such
arrangements following such approval, the Board has reviewed
and approved the arrangement and has not delivered an
Officer's Certificate to the Bank indicating that the Board
has withdrawn its approval:
(a) The Bank may use a Depository to hold,
receive, exchange, release, lend, deliver and otherwise deal
with Portfolio Securities including stock dividends, rights
and other items of like nature, and to receive and remit to
the Bank on behalf of the Fund all income and other payments
thereon and to take all steps necessary and proper in
connection with the collection thereof;
(b) Registration of Portfolio Securities may
be made in the name of any nominee or nominees used by such
Depository;
(c) Payment for securities purchased and sold
may be made through the clearing medium employed by such
Depository for transactions of participants acting through
it. Upon any purchase of Portfolio Securities, payment will
be made only upon delivery of the securities to or for the
account of the Fund and the Fund shall pay cash collateral
against the return of Portfolio Securities loaned by the
Fund only upon delivery of the Securities to or for the
account of the Fund; and upon any sale of Portfolio
Securities, delivery of the Securities will be made only
against payment therefor or, in the event Portfolio
Securities are loaned, delivery of Securities will be made
only against receipt of the initial cash collateral to or
for the account of the Fund; and
(d) The Bank shall be liable to the Fund for
any loss or damage to the Fund resulting from use of a
Depository by reason of any gross negligence, willful
misfeasance or bad faith of the Bank or its employees or
from any reckless disregard by the Bank of its duty to use
its commercially reasonable efforts to enforce such rights
as it may have against a depository. Accordingly, the Bank
shall use its best efforts to provide that:
(i) The Depository obtains replacement
of any certificated Portfolio Security deposited with it in
the event such Security is lost, destroyed, wrongfully taken
or otherwise not available to be returned to the Bank upon
its request;
(ii) Proxy materials received by a
Depository with respect to Portfolio Securities deposited
with such Depository are forwarded immediately to the Bank
for prompt transmittal to the Fund;
(iii) Such Depository promptly forwards to
the Bank confirmation of any purchase or sale of Portfolio
Securities and of the appropriate book entry made by such
Depository to the Fund's account;
(iv) Such Depository prepares and
delivers to the Bank such records with respect to the
performance of the Bank's obligations and duties hereunder
as may be necessary for the Fund to comply with the
recordkeeping requirements of Section 31(a) of the 1940 Act
and Rule 31(a) thereunder; and
(v) Such Depository delivers to the Bank
all internal accounting control reports, whether or not
audited by an independent public accountant, as well as such
other reports as the Fund may reasonably request in order to
verify the Portfolio Securities held by such Depository.
(e) The Bank shall be liable to the Fund for
any loss or damage to the Fund resulting from the use of a
Depository to the extent such loss or damage is solely the
result of any gross negligence, willful misfeasance or bad
faith of the Bank or any of its directors, officers or
employees or of the reckless disregard by the Bank or any of
its directors, officers or employees of its duty to use
commercially reasonable efforts to enforce such rights as it
may have against the Depository.
6.6 Use of Book-Entry System for Commercial Paper.
Provided (i) the Bank has received a certified copy of a
resolution of the Board specifically approving participation
in a system maintained by the Bank for the holding of
commercial paper in book-entry form ("Book-Entry Paper") and
(ii) for each year following such approval the Board has
received and approved the arrangements, upon receipt of
Proper Instructions and upon receipt of confirmation from an
Issuer (as defined below) that the Fund has purchased such
Issuer's Book-Entry Paper, the Bank shall issue and hold in
book-entry form, on behalf of the Fund, commercial paper
issued by issuers with whom the Bank has entered into a
book-entry agreement (the "Issuers"). In maintaining
procedures for Book-Entry Paper, the Bank agrees that:
(a) The Bank will maintain all Book-Entry
Paper held by the Fund in an account of the Bank that
includes only assets held by it for customers;
(b) The records of the Bank with respect to
the Fund's purchase of Book-Entry Paper through the Bank
will identify, by book-entry, commercial paper belonging to
the Fund which is included in the Book-Entry System and
shall at all times during the regular business hours of the
Bank be open for inspection by duly authorized officers,
employees or agents of the Fund;
(c) The Bank shall pay for Book-Entry Paper
purchased for the account of the Fund upon contemporaneous
(i) receipt of advice from the Issuer that such sale of
Book-Entry Paper has been effected, and (ii) the making of
an entry on the records of the Bank to reflect such payment
and transfer for the account of the Fund;
(d) The Bank shall cancel such Book-Entry
Paper obligation upon the maturity thereof upon
contemporaneous (i) receipt of advice that payment for such
Book-Entry Paper has been transferred to the Fund, and (ii)
the making of an entry on the records of the Bank to reflect
such payment for the account of the Fund;
(e) The Bank shall transmit to the Fund a
transaction report showing each transaction in Book-Entry
Paper for the account of the Fund on the next business day
following the day on which such transaction is booked; and
(f) The Bank will send to the Fund such
reports on its system of internal accounting control with
respect to the Book-Entry Paper as the Fund may reasonably
request from time to time.
.
6.7 Use of Immobilization Programs. Provided (i)
the Bank has received a certified copy of a resolution of
the Board specifically approving the maintenance of
Portfolio Securities in an immobilization program operated
by a bank which meets the requirements of Section 26(a)(1)
of the 1940 Act, and (ii) for each year following such
approval the Board has reviewed and approved the arrangement
and has not delivered an Officer's Certificate to the Bank
indicating that the Board has withdrawn its approval, the
Bank shall enter into such immobilization program with such
bank acting as a subcustodian hereunder.
6.8 Eurodollar CDs. Any Portfolio Securities
which are Eurodollar CDs may be physically held by the
European branch of the U.S. banking institution that is the
issuer of such Eurodollar CD (a "European Branch"), provided
that such Portfolio Securities are identified on the books
of the Bank as belonging to the Fund and that the books of
the Bank identify the European Branch holding such Portfolio
Securities. Notwithstanding any other provision of this
Agreement to the contrary, except as stated in the first
sentence of this subsection 6.8, the Bank shall be under no
other duty with respect to such Eurodollar CDs belonging to
the Fund.
6.9 Options and Futures Transactions.
(a) Puts and Calls Traded on Securities
Exchanges, NASDAQ or Over-the-Counter.
(i) The Bank shall take action as to put
options ("puts") and call options ("calls") purchased or
sold (written) by the Fund regarding escrow or other
arrangements (i) in accordance with the provisions of any
agreement entered into upon receipt of Proper Instructions
among the Bank, any broker-dealer registered with the
National Association of Securities Dealers, Inc. (the
"NASD"), and, if necessary, the Fund, relating to the
compliance with the rules of the Options Clearing
Corporation and of any registered national securities
exchange, or of any similar organization or organizations.
(ii) Unless another agreement requires it
to do so, the Bank shall be under no duty or obligation to
see that the Fund has deposited or is maintaining adequate
margin, if required, with any broker in connection with any
option, nor shall the Bank be under duty or obligation to
present such option to the broker for exercise unless it
receives Proper Instructions from the Fund. The Bank shall
have no responsibility for the legality of any put or call
purchased or sold on behalf of the Fund, the propriety of
any such purchase or sale, or the adequacy of any collateral
delivered to a broker in connection with an option or
deposited to or withdrawn from a Segregated Account (as
defined in subsection 6.10 below). The Bank specifically,
but not by way of limitation, shall not be under any duty or
obligation to: (i) periodically check or notify the Fund
that the amount of such collateral held by a broker or held
in a Segregated Account is sufficient to protect such broker
or the Fund against any loss; (ii) effect the return of any
collateral delivered to a broker; or (iii) advise the Fund
that any option it holds, has or is about to expire. Such
duties or obligations shall be the sole responsibility of
the Fund.
(b) Puts, Calls and Futures Traded on
Commodities Exchanges
(i) The Bank shall take action as to
puts, calls and futures contracts ("Futures") purchased or
sold by the Fund in accordance with the provisions of any
agreement entered into upon the receipt of Proper
Instructions among the Fund, the Bank and a Futures
Commission Merchant registered under the Commodity Exchange
Act, relating to compliance with the rules of the Commodity
Futures Trading Commission and/or any Contract Market, or
any similar organization or organizations, regarding account
deposits in connection with transactions by the Fund.
(ii) The responsibilities of the Bank as
to futures, puts and calls traded on commodities exchanges,
any Futures Commission Merchant account and the Segregated
Account shall be limited as set forth in subparagraph
(a)(ii) of this Section 6.9 as if such subparagraph referred
to Futures Commission Merchants rather than brokers, and
Futures and puts and calls thereon instead of options.
6.10 Segregated Account. The Bank shall upon
receipt of Proper Instructions establish and maintain a
Segregated Account or Accounts for and on behalf of the
Fund.
(a) Cash and/or Portfolio Securities may be
transferred into a Segregated Account upon receipt of Proper
Instructions in the following circumstances:
(i) in accordance with the provisions of
any agreement among the Fund, the Bank and a broker-dealer
registered under the Exchange Act and a member of the NASD
or any Futures Commission Merchant registered under the
Commodity Exchange Act, relating to compliance with the
rules of the Options Clearing Corporation and of any
registered national securities exchange or the Commodity
Futures Trading Commission or any registered Contract
Market, or of any similar organizations regarding escrow or
other arrangements in connection with transactions by the
Fund;
(ii) for the purpose of segregating cash
or securities in connection with options purchased or
written by the Fund or commodity futures purchased or
written by the Fund;
(iii) for the deposit of liquid assets,
such as cash, U.S. Government securities or other liquid
securities, having a market value (marked to market on a
daily basis) at all times equal to not less than the
aggregate purchase price due on the settlement dates of all
the Fund's then outstanding forward commitment or "when-
issued" agreements relating to the purchase of Portfolio
Securities and all the Fund's then outstanding commitments
under reverse repurchase agreements entered into with
broker-dealer firms;
(iv) for the purposes of compliance by
the Fund with the procedures required by Investment Company
Act Release No. 10666, or any subsequent release or releases
of the Securities and Exchange Commission relating to the
maintenance of Segregated Accounts by registered investment
companies;
(v) for other proper corporate purposes,
but only, in the case of this clause (v), upon receipt of,
in addition to Proper Instructions, a certified copy of a
resolution of the Board, or of the executive committee of
the Board signed by an officer of the Fund and certified by
the Secretary or an Assistant Secretary, setting forth the
purpose or purposes of such Segregated Account and declaring
such purposes to be proper corporate purposes.
(b) Cash and/or Portfolio Securities may be
withdrawn from a Segregated Account pursuant to Proper
Instructions in the following circumstances:
(i) with respect to assets deposited in
accordance with the provisions of any agreements referenced
in (a)(i) or (a)(ii) above, in accordance with the
provisions of such agreements;
(ii) with respect to assets deposited
pursuant to (a)(iii) or (a)(iv) above, for sale or delivery
to meet the Fund's obligations under outstanding forward
commitment or when-issued agreements for the purchase of
Portfolio Securities and under reverse repurchase
agreements;
(iii) for exchange for other liquid assets
of equal or greater value deposited in the Segregated
Account;
(iv) to the extent that the Fund's
outstanding forward commitment or when-issued agreements for
the purchase of portfolio securities or reverse repurchase
agreements are sold to other parties or the Fund's
obligations thereunder are met from assets of the Fund other
than those in the Segregated Account;
(v) for delivery upon settlement of a
forward commitment or when-issued agreement for the sale of
Portfolio Securities; or
(vi) with respect to assets deposited
pursuant to (a)(v) above, in accordance with the purposes of
such account as set forth in Proper Instructions.
6.11 Interest Bearing Call or Time Deposits. The
Bank shall, upon receipt of Proper Instructions relating to
the purchase by the Fund of interest-bearing fixed-term and
call deposits, transfer cash, by wire or otherwise, in such
amounts and to such bank or banks as shall be indicated in
such Proper Instructions. The Bank shall include in its
records with respect to the assets of the Fund appropriate
notation as to the amount of each such deposit, the banking
institution with which such deposit is made (the "Deposit
Bank"), and shall retain such forms of advice or receipt
evidencing the deposit, if any, as may be forwarded to the
Bank by the Deposit Bank. Such deposits shall be deemed
Portfolio Securities of the Fund and the responsibility of
the Bank therefore shall be the same as and no greater than
the Bank's responsibility in respect of other Portfolio
Securities of the Fund.
6.12 Transfer of Securities. The Bank will
transfer, exchange, deliver or release Portfolio Securities
held by it hereunder, insofar as such Securities are
available for such purpose, provided that before making any
transfer, exchange, delivery or release under this Section
only upon receipt of Proper Instructions. The Proper
Instructions shall state that such transfer, exchange or
delivery is for a purpose permitted under the terms of this
Section 6.12, and shall specify the applicable subsection,
or describe the purpose of the transaction with sufficient
particularity to permit the Bank to ascertain the applicable
subsection. After receipt of such Proper Instructions, the
Bank will transfer, exchange, deliver or release Portfolio
Securities only in the following circumstances:
(a) Upon sales of Portfolio Securities for the
account of the Fund, against contemporaneous receipt by the
Bank of payment therefor in full, or against payment to the
Bank in accordance with generally accepted settlement
practices and customs in the jurisdiction or market in which
the transaction occurs, each such payment to be in the
amount of the sale price shown in a broker's confirmation of
sale received by the Bank before such payment is made, as
confirmed in the Proper Instructions received by the Bank
before such payment is made;
(b) In exchange for or upon conversion into
other securities alone or other securities and cash pursuant
to any plan of merger, consolidation, reorganization, share
split-up, change in par value, recapitalization or
readjustment or otherwise, upon exercise of subscription,
purchase or sale or other similar rights represented by such
Portfolio Securities, or for the purpose of tendering shares
in the event of a tender offer therefor, provided, however,
that in the event of an offer of exchange, tender offer, or
other exercise of rights requiring the physical tender or
delivery of Portfolio Securities, the Bank shall have no
liability for failure to so tender in a timely manner unless
such Proper Instructions are received by the Bank at least
two business days prior to the date required for tender, and
unless the Bank (or its agent or subcustodian hereunder) has
actual possession of such Security at least two business
days prior to the date of tender;
(c) Upon conversion of Portfolio Securities
pursuant to their terms into other securities;
(d) For the purpose of redeeming in-kind
shares of the Fund upon authorization from the Fund;
(e) In the case of option contracts owned by
the Fund, for presentation to the endorsing broker;
(f) When such Portfolio Securities are called,
redeemed or retired or otherwise become payable;
(g) For the purpose of effectuating the pledge
of Portfolio Securities held by the Bank in order to
collateralize loans made to the Fund by any bank, including
the Bank; provided, however, that such Portfolio Securities
will be released only upon payment to the Bank for the
account of the Fund of the moneys borrowed, provided
further, however, that in cases where additional collateral
is required to secure a borrowing already made, and such
fact is made to appear in the Proper Instructions, Portfolio
Securities may be released for that purpose without any such
payment. In the event that any pledged Portfolio Securities
are held by the Bank, they will be so held for the account
of the lender, and after notice to the Fund from the lender
in accordance with the normal procedures of the lender and
any loan agreement between the fund and the lender that an
event of deficiency or default on the loan has occurred, the
Bank may deliver such pledged Portfolio Securities to or for
the account of the lender;
(h) for the purpose of releasing certificates
representing Portfolio Securities, against contemporaneous
receipt by the Bank of the fair market value of such
security, as set forth in the Proper Instructions received
by the Bank before such payment is made;
(i) for the purpose of delivering securities
lent by the Fund to a bank or broker dealer, but only
against receipt in accordance with street delivery custom
except as otherwise provided herein, of adequate collateral
as agreed upon from time to time by the Fund and the Bank,
and upon receipt of payment in connection with any
repurchase agreement relating to such securities entered
into by the Fund;
(j) for other authorized transactions of the
Fund or for other proper corporate purposes; provided that
before making such transfer, the Bank will also receive a
certified copy of resolutions of the Board, signed by an
authorized officer of the Fund (other than the officer
certifying such resolution) and certified by its Secretary
or Assistant Secretary, specifying the Portfolio Securities
to be delivered, setting forth the transaction in or purpose
for which such delivery is to be made, declaring such
transaction to be an authorized transaction of the Fund or
such purpose to be a proper corporate purpose, and naming
the person or persons to whom delivery of such securities
shall be made; and
(k) upon termination of this Agreement as
hereinafter set forth pursuant to Section 8 and Section 16
of this Agreement.
As to any deliveries made by the Bank pursuant to this
Section 6.12, securities or cash receivable in exchange
therefor shall be delivered to the Bank.
7. Redemptions. In the case of payment of assets of
the Fund held by the Bank in connection with redemptions and
repurchases by the Fund of outstanding common shares, the
Bank will rely on notification by the Fund's transfer agent
of receipt of a request for redemption and certificates, if
issued, in proper form for redemption before such payment is
made. Payment shall be made in accordance with the
Declaration of Trust and By-laws of the Fund (the
"Articles"), from assets available for said purpose.
8. Merger, Dissolution, etc. of Fund. In the case of
the following transactions, not in the ordinary course of
business, namely, the merger of the Fund into or the
consolidation of the Fund with another investment company,
the sale by the Fund of all, or substantially all, of its
assets to another investment company, or the liquidation or
dissolution of the Fund and distribution of its assets, the
Bank will deliver the Portfolio Securities held by it under
this Agreement and disburse cash only upon the order of the
Fund set forth in an Officers' Certificate, accompanied by a
certified copy of a resolution of the Board authorizing any
of the foregoing transactions. Upon completion of such
delivery in proper form and disbursement and the payment of
the fees, disbursements and expenses of the Bank, this
Agreement will terminate and the Bank shall be released from
any and all obligations hereunder.
9. Actions of Bank Without Prior Authorization.
Notwithstanding anything herein to the contrary, unless and
until the Bank receives an Officers' Certificate to the
contrary, the Bank will take the following actions without
prior authorization or instruction of the Fund or the
transfer agent:
9.1 Endorse for collection and collect on behalf
of and in the name of the Fund all checks, drafts, or other
negotiable or transferable instruments or other orders for
the payment of money received by it for the account of the
Fund and hold for the account of the Fund all income,
dividends, interest and other payments or distributions of
cash with respect to the Portfolio Securities held
thereunder;
9.2 Present for payment all coupons and other
income items held by it for the account of the Fund which
call for payment upon presentation and hold the cash
received by it upon such payment for the account of the
Fund;
9.3 Receive and hold for the account of the Fund
all securities received as a distribution on Portfolio
Securities as a result of a stock dividend, share split-up,
reorganization, recapitalization, merger, consolidation,
readjustment, distribution of rights and similar securities
issued with respect to any Portfolio Securities held by it
hereunder.
9.4 Execute as agent on behalf of the Fund all
necessary ownership and other certificates and affidavits
required by the Internal Revenue Code or the regulations of
the Treasury Department issued thereunder, or by the laws of
any state, now or hereafter in effect, inserting the Fund's
name on such certificates as the owner of the securities
covered thereby, to the extent it may lawfully do so and as
may be required to obtain payment in respect thereof. The
Bank will execute and deliver such certificates in
connection with Portfolio Securities delivered to it or by
it under this Agreement as may be required under the
provisions of the Internal Revenue Code and any Regulations
of the Treasury Department issued thereunder, or under the
laws of any State;
9.5 Present for payment all Portfolio Securities
which are called, redeemed, retired or otherwise become
payable, and hold cash received by it upon payment for the
account of the Fund; and
9.6 Exchange interim receipts or temporary
securities for definitive securities.
10. Collections and Defaults. The Bank will use
reasonable efforts to collect any funds which may to its
knowledge become collectible arising from Portfolio
Securities, including dividends, interest and other income,
and to transmit to the Fund notice actually received by it
of any call for redemption, offer of exchange, right of
subscription, reorganization or other proceedings affecting
such Securities. If Portfolio Securities upon which such
income is payable are in default or payment is refused after
due demand or presentation, the Bank will notify the Fund in
writing of any default or refusal to pay within two business
days from the day on which it receives knowledge of such
default or refusal. In addition, the Bank will send the
Fund a written report once each month showing any income on
any Portfolio Security held by it which is more than ten
days overdue on the date of such report and which has not
been previously reported.
11. Maintenance of Records and Accounting Services.
The Bank will maintain records with respect to transactions
for which the Bank is responsible pursuant to the terms and
conditions of this Agreement, and in compliance with the
applicable rules and regulations of the 1940 Act. The books
and records of the Bank pertaining to its actions under this
Agreement and reports by the Bank or its independent
accountants concerning its accounting system, procedures for
safeguarding securities and internal accounting controls
will be open to inspection and audit at reasonable times by
officers of or auditors employed by the Fund and will be
preserved by the Bank in the manner and in accordance with
the applicable rules and regulations under the 1940 Act.
The Bank will furnish to the Fund as of the end of each
month a report showing the Portfolio Securities and cash
held by it for the Fund.
The Bank shall perform fund accounting and shall keep
the books of account and render statements or copies from
time to time as reasonably requested by the Treasurer or any
executive officer of the Fund.
The Bank shall assist generally in the preparation of
reports to shareholders and others, audits of accounts, and
other ministerial matters of like nature.
12. Fund Evaluation and Yield Calculation
12.1 Fund Evaluation. The Bank shall compute and,
unless otherwise directed by the Board, determine as of the
close of regular trading on The New York Stock Exchange,
Inc. on each day on which said Exchange is open for
unrestricted trading and as of such other days, or hours, if
any, as may be authorized by the Board, the net asset value
and the public offering price of a share of capital stock of
the Fund, such determination to be made in accordance with
the provisions of the Articles of the Fund and the
Prospectus and Statement of Additional Information relating
to the Fund, as they may from time to time be amended, and
any applicable resolutions of the Board at the time in force
and applicable; and promptly to notify the Fund, the proper
exchange and the NASD or such other persons as the Fund may
request of the results of such computation and
determination. In computing the net asset value hereunder,
the Bank may rely in good faith upon information furnished
to it by any Authorized Person in respect of (i) the manner
of accrual of the liabilities of the Fund and in respect of
liabilities of the Fund not appearing on its books of
account kept by the Bank, (ii) reserves, if any, authorized
by the Board or that no such reserves have been authorized,
(iii) the source of the quotations to be used in computing
the net asset value, (iv) the value to be assigned to any
security for which no price quotations are available, and
(v) the method of computation of the public offering price
on the basis of the net asset value of the shares, and the
Bank shall not be responsible for any loss occasioned by
such reliance or for any good faith reliance on any
quotations received from a source pursuant to (iii) above.
12.2. Yield Calculation. The Bank will compute
the performance results of the Fund (the "Yield
Calculation") in accordance with the provisions of Release
No. 33-6753 and Release No. IC-16245 (February 2, 1988) (the
"Releases") promulgated by the Securities and Exchange
Commission, and any subsequent amendments to, published
interpretations of or general conventions accepted by the
staff of the Securities and Exchange Commission with respect
to such releases or the subject matter thereof ("Subsequent
Staff Positions"), subject to the terms set forth below:
(a) The Bank shall compute the Yield
Calculation for the Fund for the stated periods of time as
shall be mutually agreed upon, and communicate in a timely
manner the result of such computation to the Fund.
(b) In performing the Yield Calculation, the
Bank will derive the items of data necessary for the
computation from the records it generates and maintains for
the Fund pursuant Section 11 hereof. The Bank shall have no
responsibility to review, confirm, or otherwise assume any
duty or liability with respect to the accuracy or
correctness of any such data supplied to it by the Fund, any
of the Fund's designated agents or any of the Fund's
designated third party providers.
(c) At the request of the Bank, the Fund shall
provide, and the Bank shall be entitled to rely on, written
standards and guidelines to be followed by the Bank in
interpreting and applying the computation methods set forth
in the Releases or any Subsequent Staff Positions as they
specifically apply to the Fund. In the event that the
computation methods in the Releases or the Subsequent Staff
Positions or the application to the Fund of a standard or
guideline is not free from doubt or in the event there is
any question of interpretation as to the characterization of
a particular security or any aspect of a security or a
payment with respect thereto (e.g., original issue discount,
participating debt security, income or return of capital,
etc.) or otherwise or as to any other element of the
computation which is pertinent to the Fund, the Fund or its
designated agent shall have the full responsibility for
making the determination of how the security or payment is
to be treated for purposes of the computation and how the
computation is to be made and shall inform the Bank thereof
on a timely basis. The Bank shall have no responsibility to
make independent determinations with respect to any item
which is covered by this Section, and shall not be
responsible for its computations made in accordance with
such determinations so long as such computations are
mathematically correct.
(d) The Fund shall keep the Bank informed of
all publicly available information and of any non-public
advice, or information obtained by the Fund from its
independent auditors or by its personnel or the personnel of
its investment adviser, or Subsequent Staff Positions
related to the computations to be undertaken by the Bank
pursuant to this Agreement and the Bank shall not be deemed
to have knowledge of such information (except as contained
in the Releases) unless it has been furnished to the Bank in
writing.
13. Additional Services. The Bank shall perform the
additional services for the Fund as are set forth on
Appendix C hereto. Appendix C may be amended from time to
time upon agreement of the parties to include further
additional services to be provided by the Bank to the Fund,
at which time the fees set forth in Appendix B shall be
increased by mutual agreement.
14. Duties of the Bank.
14.1 Performance of Duties and Standard of Care.
In performing its duties hereunder and any other duties
listed on any Schedule hereto, if any, the Bank will be
entitled to receive and act upon the advice of independent
counsel of its own selection, which may be counsel for the
Fund, and will be without liability for any action taken or
thing done or omitted to be done in accordance with this
Agreement in good faith in conformity with such advice.
The Bank will be under no duty or obligation to
inquire into and will not be liable for:
(a) the validity of the issue of any Portfolio
Securities purchased by or for the Fund, the legality of the
purchases thereof or the propriety of the price incurred
therefor;
(b) the legality of any sale of any Portfolio
Securities by or for the Fund or the propriety of the amount
for which the same are sold;
(c) the legality of an issue or sale of any
common shares of the Fund or the sufficiency of the amount
to be received therefor;
(d) the legality of the repurchase of any
common shares of the Fund or the propriety of the amount to
be paid therefor;
(e) the legality of the declaration of any
dividend by the Fund or the legality of the distribution of
any Portfolio Securities as payment in kind of such
dividend; and
(f) any property or moneys of the Fund unless
and until received by it, and any such property or moneys
delivered or paid by it pursuant to the terms hereof.
Moreover, the Bank will not be under any duty or
obligation to ascertain whether any Portfolio Securities at
any time delivered to or held by it for the account of the
Fund are such as may properly be held by the Fund under the
provisions of its Articles, any federal or state statutes or
any rule or regulation of any governmental agency.
14.2 Agents and Subcustodians with Respect to
Property of the Fund Held in the United States. The Bank
may employ agents of its own selection in the performance of
its duties hereunder and shall be responsible for the acts
and omissions of such agents as if performed by the Bank
hereunder. Without limiting the foregoing, certain duties
of the Bank hereunder may be performed by one or more
affiliates of the Bank.
Upon receipt of Proper Instructions, the Bank may
employ subcustodians selected by or at the direction of the
Fund, provided that any such subcustodian meets at least the
minimum qualifications required by Section 17(f)(1) of the
1940 Act to act as a custodian of the Fund's assets with
respect to property of the Fund held in the United States.
The Bank shall have no liability to the Fund or any other
person by reason of any act or omission of any such
subcustodian and the Fund shall indemnify the Bank and hold
it harmless from and against any and all actions, suits and
claims, arising directly or indirectly out of the
performance of any subcustodian. Upon request of the Bank,
the Fund shall assume the entire defense of any action,
suit, or claim subject to the foregoing indemnity. The Fund
shall pay all fees and expenses of any subcustodian.
14.3 Duties of the Bank with Respect to Property
of the Fund Held Outside of the United States.
(a) Appointment of Foreign Custody Manager.
(i) If the Fund has appointed the Bank
Foreign Custody Manager (as that term is defined in Rule
17f-5 under the 1940 Act), the Bank's duties and obligations
with respect to the Fund's Portfolio Securities and other
assets maintained outside the United States shall be, to the
extent not set forth herein, as set forth in the Delegation
Agreement between the Fund and the Bank (the "Delegation
Agreement").
(ii) If the Fund has appointed any other
person or entity Foreign Custody Manager, the Bank shall act
only upon Proper Instructions from the Fund with regard to
any of the Fund's Portfolio Securities or other assets held
or to be held outside of the United States, and the Bank
shall be without liability for any Claim (as that term is
defined in Section 15 hereof) arising out of maintenance of
the Fund's Portfolio Securities or other assets outside of
the United States. The Fund also agrees that it shall enter
into a written agreement with such Foreign Custody Manager
that shall obligate such Foreign Custody Manager to provide
to the Bank in a timely manner all information required by
the Bank in order to complete its obligations hereunder.
The Bank shall not be liable for any Claim arising out of
the failure of such Foreign Custody Manager to provide such
information to the Bank.
(b) Segregation of Securities. The Bank shall
identify on its books as belonging to the Fund the Foreign
Portfolio Securities held by each foreign sub-custodian
(each an "Eligible Foreign Custodian") selected by the
Foreign Custody Manager, subject to receipt by the Bank of
the necessary information from such Eligible Foreign
Custodian if the Foreign Custody Manager is not the Bank.
(c) Access of Independent Accountants of the
Fund. If the Bank is the Fund's Foreign Custody Manager,
upon request of the Fund, the Bank will use its best efforts
to arrange for the independent accountants of the Fund to be
afforded access to the books and records of any foreign
banking institution employed as an Eligible Foreign
Custodian insofar as such books and records relate to the
performance of such foreign banking institution with regard
to the Fund's Portfolio Securities and other assets.
(d) Reports by Bank. If the Bank is the Fund's
Foreign Custody Manager, the Bank will supply to the Fund
the reports required under the Delegation Agreement.
(e) Transactions in Foreign Custody Account.
Transactions with respect to the assets of the Fund held by
an Eligible Foreign Custodian shall be effected pursuant to
Proper Instructions from the Fund to the Bank and shall be
effected in accordance with the applicable agreement between
the Foreign Custody Manager and such Eligible Foreign
Custodian. If at any time any Foreign Portfolio Securities
shall be registered in the name of the nominee of the
Eligible Foreign Custodian, the Fund agrees to hold any such
nominee harmless from any liability to the extent such
liability arises by reason of the registration of such
securities in the name of such nominee.
Notwithstanding any provision of this
Agreement to the contrary, settlement and payment for
Foreign Portfolio Securities received for the account of the
Fund and delivery of Foreign Portfolio Securities maintained
for the account of the Fund may be effected in accordance
with the customary established securities trading or
securities processing practices and procedures in the
jurisdiction or market in which the transaction occurs,
including, without limitation, delivering securities to the
purchaser thereof or to a dealer therefor (or an agent for
such purchaser or dealer) against a receipt with the
expectation of receiving later payment for such securities
from such purchaser or dealer.
In connection with any action to be taken
with respect to the Foreign Portfolio Securities held
hereunder, including, without limitation, the exercise of
any voting rights, subscription rights, redemption rights,
exchange rights, conversion rights or tender rights, or any
other action in connection with any other right, interest or
privilege with respect to such Securities (collectively, the
"Rights"), the Bank shall promptly transmit to the Fund such
information in connection therewith as is made available to
the Bank by the Eligible Foreign Custodian, and shall
promptly forward to the applicable Eligible Foreign
Custodian any instructions, forms or certifications with
respect to such Rights, and any instructions relating to the
actions to be taken in connection therewith, as the Bank
shall receive from the Fund pursuant to Proper Instructions.
Notwithstanding the foregoing, the Bank shall have no
further duty or obligation with respect to such Rights,
including, without limitation, the determination of whether
the Fund is entitled to participate in such Rights under
applicable U.S. and foreign laws, or the determination of
whether any action proposed to be taken with respect to such
Rights by the Fund or by the applicable Eligible Foreign
Custodian will comply with all applicable terms and
conditions of any such Rights or any applicable laws or
regulations, or market practices within the market in which
such action is to be taken or omitted.
(f) Tax Law. The Bank shall have no
responsibility or liability for any obligations now or
hereafter imposed on the Fund or the Bank as custodian of
the Fund by the tax laws of any jurisdiction, and it shall
be the responsibility of the Fund to notify the Bank of the
obligations imposed on the Fund or the Bank as the custodian
of the Fund by the tax law of any non-U.S. jurisdiction,
including responsibility for withholding and other taxes,
assessments or other governmental charges, certifications
and governmental reporting. The sole responsibility of the
Eligible Foreign Custodian with regard to such tax law shall
be to use reasonable efforts to assist the Fund with respect
to any claim for exemption or refund under the tax law of
jurisdictions for which the Fund has provided such
information.
14.4 Insurance. The Bank shall use the same care
with respect to the safekeeping of Portfolio Securities and
cash of the Fund held by it as it uses in respect of its own
similar property but it need not maintain any special
insurance for the benefit of the Fund.
14.5. Fees and Expenses of the Bank. The Fund
will pay or reimburse the Bank from time to time for any
transfer taxes payable upon transfer of Portfolio Securities
made hereunder, and for all necessary proper disbursements,
expenses and charges made or incurred by the Bank in the
performance of this Agreement (including any duties listed
on any Schedule hereto, if any) including any indemnities
for any loss, liabilities or expense to the Bank as provided
above. For the services rendered by the Bank hereunder, the
Fund will pay to the Bank, solely from the assets of the
Portfolios, such compensation or fees at such rate and at
such times as shall be agreed upon in writing by the parties
from time to time. The Bank will also be entitled to
reimbursement by the Fund for all reasonable out-of-pocket
expenses incurred in conjunction with termination of this
Agreement. All such payments made pursuant to this
paragraph shall be paid solely from the assets of the
Portfolios.
14.6 Advances by the Bank. The Bank may, in its
sole discretion, advance funds on behalf of the Fund to make
any payment permitted by this Agreement upon receipt of any
proper authorization required by this Agreement for such
payments by the Fund. Should such a payment or payments,
with advanced funds, result in an overdraft (due to
insufficiencies of the Fund's account with the Bank, or for
any other reason) this Agreement deems any such overdraft or
related indebtedness a loan made by the Bank to the Fund
payable on demand solely from the assets of the Portfolios.
Such overdraft shall bear interest at the current rate
charged by the Bank for such loans unless the Fund shall
provide the Bank with agreed upon compensating balances. The
Fund agrees that the Bank shall have a continuing lien and
security interest to the extent of any overdraft or
indebtedness or to the extent required by law, whichever is
greater, in and to any property at any time held by it for
the Fund's benefit or in which the Fund has an interest and
which is then in the Bank's possession or control (or in the
possession or control of any third party acting on the
Bank's behalf). The Fund authorizes the Bank, in the Bank's
sole discretion, at any time to charge any overdraft or
indebtedness, together with interest due thereon, against
any balance of account standing to the credit of the Fund on
the Bank's books.
15. Limitation of Liability.
15.1 Notwithstanding anything in this Agreement to
the contrary, in no event shall the Bank or any of its
officers, directors, employees or agents (collectively, the
"Indemnified Parties") be liable to the Fund or any third
party, and the Fund shall indemnify and hold the Bank and
the Indemnified Parties harmless from and against any and
all loss, damage, liability, actions, suits, claims, costs
and expenses, including legal fees, (a "Claim") arising as a
result of any act or omission of the Bank or any Indemnified
Party under this Agreement, except for any Claim resulting
solely from the gross negligence, willful misfeasance or bad
faith of the Bank or any Indemnified Party. Without
limiting the foregoing, neither the Bank nor the Indemnified
Parties shall be liable for, and the Bank and the
Indemnified Parties shall be indemnified against, any Claim
arising as a result of:
(a) Any act or omission by the Bank or any
Indemnified Party in good faith reliance upon the terms of
this Agreement, any Officer's Certificate, Proper
Instructions, resolution of the Board, telegram, telecopier,
notice, request, certificate or other instrument reasonably
believed by the Bank to genuine;
(b) Any act or omission of any subcustodian
selected by or at the direction of the Fund;
(c) Any act or omission of any Foreign Custody
Manager other than the Bank or any act or omission of any
Eligible Foreign Custodian if the Bank is not the Foreign
Custody Manager;
(d) Any Corporate Action, distribution or
other event related to Portfolio Securities which, at the
direction of the Fund, have not been registered in the name
of the Bank or its nominee;
(e) Any Corporate Action requiring a Response
for which the Bank has not received Proper Instructions or
obtained actual possession of all necessary Securities,
consents or other materials by 5:00 p.m. on the date
specified as the Response Deadline;
(f) Any act or omission of any European Branch
of a U.S. banking institution that is the issuer of
Eurodollar CDs in connection with any Eurodollar CDs held by
such European Branch;
(g) Information relied on in good faith by the
Bank and supplied by any Authorized Person in connection
with the calculation of (i) the net asset value and public
offering price of the shares of capital stock of the Fund or
(ii) the Yield Calculation; or
(h) Any acts of God, earthquakes, fires,
floods, storms or other disturbances of nature, epidemics,
strikes, riots, nationalization, expropriation, currency
restrictions, acts of war, civil war or terrorism,
insurrection, nuclear fusion, fission or radiation, the
interruption, loss or malfunction of utilities,
transportation or computers (hardware or software) and
computer facilities, the unavailability of energy sources
and other similar happenings or events.
15.2 Notwithstanding anything to the contrary in
this Agreement, in no event shall the Bank or the
Indemnified Parties be liable to the Fund or any third party
for lost profits or lost revenues or any special,
consequential, punitive or incidental damages of any kind
whatsoever in connection with this Agreement or any
activities hereunder.
15.3 Notwithstanding anything in this Agreement to
the contrary, in no event shall the Fund be liable to the
Bank or any third party, and the Bank shall indemnify and
hold the Fund harmless from and against any and all Claims
resulting solely from the gross negligence, willful
misfeasance or bad faith of the Bank.
16. Termination.
16.1 This Agreement may be terminated at any time
by either party hereto without penalty upon ninety days
written notice to the other party. Any termination pursuant
to this paragraph 16.1 shall be effective upon expiration of
such ninety days, provided, however, that the effective date
of such termination may be postponed to a date not more than
one hundred twenty days after delivery of the written
notice: (i) at the request of the Bank, in order to prepare
for the transfer by the Bank of all of the assets of the
Fund held hereunder; or (ii) at the request of the Fund, in
order to give the Fund an opportunity to make suitable
arrangements for a successor custodian.
16.2 In the event of the termination of this
Agreement, the Bank will immediately upon receipt or
transmittal, as the case may be, of notice of termination,
commence and prosecute diligently to completion the transfer
of all cash and the delivery of all Portfolio Securities
duly endorsed and all records maintained under Section 11 to
the successor custodian when appointed by the Fund. The
obligation of the Bank to deliver and transfer over the
assets of the Fund held by it directly to such successor
custodian will commence as soon as such successor is
appointed and will continue until completed as aforesaid.
If the Fund does not select a successor custodian within
ninety (90) days from the date of delivery of notice of
termination the Bank may, subject to the provisions of
subsection (16.3), deliver the Portfolio Securities and cash
of the Fund held by the Bank to a bank or trust company of
the Bank's own selection which meets the requirements of
Section 17(f)(1) of the 1940 Act and has a reported capital,
surplus and undivided profits aggregating not less than
$2,000,000, to be held as the property of the Fund under
terms similar to those on which they were held by the Bank,
whereupon such bank or trust company so selected by the Bank
will become the successor custodian of such assets of the
Fund with the same effect as though selected by the Board.
Thereafter, the Bank shall be released from any and all
obligations under this Agreement.
16.3 Prior to the expiration of ninety (90) days
after notice of termination has been given, the Fund may
furnish the Bank with an order of the Fund advising that a
successor custodian cannot be found willing and able to act
upon reasonable and customary terms and that there has been
submitted to the shareholders of the Fund the question of
whether the Fund will be liquidated or will function without
a custodian for the assets of the Fund held by the Bank. In
that event the Bank will deliver the Portfolio Securities
and cash of the Fund held by it, subject as aforesaid, in
accordance with one of such alternatives which may be
approved by the requisite vote of shareholders, upon receipt
by the Bank of a copy of the minutes of the meeting of
shareholders at which action was taken, certified by the
Fund's Secretary and an opinion of counsel to the Fund in
form and content satisfactory to the Bank. Thereafter, the
Bank shall be released from any and all obligations under
this Agreement.
16.4 The Fund shall reimburse the Bank for any
reasonable expenses incurred by the Bank in connection with
the termination of this Agreement.
16.5 At any time after the termination of this
Agreement, the Fund may, upon written request, have
reasonable access to the records of the Bank relating to its
performance of its duties as custodian.
17. Confidentiality. Both parties hereto agree than
any non-public information obtained hereunder concerning the
other party is confidential and may not be disclosed without
the consent of the other party, except as may be required by
applicable law or at the request of a governmental agency.
The parties further agree that a breach of this provision
would irreparably damage the other party and accordingly
agree that each of them is entitled, in addition to all
other remedies at law or in equity to an injunction or
injunctions without bond or other security to prevent
breaches of this provision.
18. Notices. Any notice or other instrument in
writing authorized or required by this Agreement to be given
to either party hereto will be sufficiently given if
addressed to such party and delivered via (I) United States
Postal Service registered mail, (ii) telecopier with written
confirmation, (iii) hand delivery with signature to such
party at its office at the address set forth below, namely:
(a) In the case of notices sent to the Fund to:
Xxxxx Xxxxxx Investment Trust
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxx
(b) In the case of notices sent to the Bank to:
Investors Bank & Trust Company
000 Xxxxxxxxx Xxxxxx, X.X. Xxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxx, Director -
Client Management
With a copy to: Xxxx X. Xxxxx, General
Counsel
or at such other place as such party may from
time to time designate in writing.
19. Amendments. This Agreement may not be altered or
amended, except by an instrument in writing, executed by
both parties.
20. Parties. This Agreement will be binding upon and
shall inure to the benefit of the parties hereto and their
respective successors and assigns; provided, however, that
this Agreement will not be assignable by the Fund without
the written consent of the Bank or by the Bank without the
written consent of the Fund, authorized and approved by its
Board; and provided further that termination proceedings
pursuant to Section 16 hereof will not be deemed to be an
assignment within the meaning of this provision.
21. Governing Law. This Agreement and all performance
hereunder will be governed by the laws of the Commonwealth
of Massachusetts, without regard to conflict of laws
provisions.
22. Counterparts. 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.
23. Entire Agreement. This Agreement, together with
its Appendices, constitutes the sole and entire agreement
between the parties relating to the subject matter herein
and does not operate as an acceptance of any conflicting
terms or provisions of any other instrument and terminates
and supersedes any and all prior agreements and undertakings
between the parties relating to the subject matter herein.
24. Limitation of Liability. It is expressly agreed
that the obligations of the Fund hereunder shall not bring
upon any of the trustees, shareholders, nominees, officers,
agents or employees of the Fund personally any liability but
shall be limited in all cases to the assets and property of
the Fund as provided in the Declaration of Trust. The
execution and delivery of this Agreement has been authorized
by the Board of the Fund on behalf of the Portfolios, and
signed by an authorized officer of the Fund, acting as such
and neither such authorization by the Board nor such
execution and delivery by such officer shall be deemed to
have been made by any of them individually or to impose any
liability on any of them personally but shall bind only the
assets and property of the Fund as provided in the
Declaration of Trust.
25. Several Obligations of the Portfolios. This
Agreement is an agreement entered into between the Bank and
the Fund with respect to each Portfolio. With respect to
any obligation of the Fund on behalf of any Portfolio
arising out of this Agreement, the Bank shall look for
payment or satisfaction of such obligation solely to the
assets of the Portfolio to which such obligation relates as
though the Bank had separately contracted with the Fund by
separate written instrument with respect to each Portfolio.
26. Year 2000 Readiness Disclosure. The Bank
certifies that the occurrence in or use by the Bank's own
proprietary internal systems (the "Systems") of dates before
or after January 1, 2000 (the "Millennial Dates") will not
adversely affect the performance of the Systems with respect
to date dependent data, computations, output or other
functions (including, without limitation, calculating,
computing and sequencing) and that the Systems will create,
store and generate output data related to or including
Millennial Dates without errors or omissions ("Year 2000
Compliance").
The parties acknowledge that the Bank relies on
automated data communications with vendors, clients and
other third parties, as well as certain third party hardware
and software providers such as Electronic Data Systems. The
Bank also relies on other third party relationships in the
conduct of its business. For example, the Bank relies on
the services of the landlords of its facilities,
telecommunication companies, utilities and commercial
airlines, among others. The parties acknowledge that the
Bank can make no certification as to the Year 2000
Compliance of third-parties utilized by the Bank in its day
to day operations or with which the Systems interact or
communicate, from which the Systems receive data or to which
the Systems send data. The parties further acknowledge that
while the Bank has contacted such third-parties regarding
Year 2000 Compliance and will use reasonable efforts to
monitor the status of such third-parties' Year 2000
Compliance, failure by such third-parties to achieve timely
Year 2000 Compliance could adversely affect the Bank's
performance.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be executed by their respective officers
thereunto duly authorized as of the day and year first
written above.
XXXXX XXXXXX
INVESTMENT TRUST
By:
Name:
Title:
INVESTORS BANK &
TRUST COMPANY
By:
Name:
Title:
Appendices
Appendix
A...........................................................
... Portfolios
Appendix
B...........................................................
... Fee Schedule
Appendix
C...........................................................
... Additional Services
A
p
p
e
n
d
i
x
A
Portfolios Serviced by Investors Bank &
Trust Company
1. U. S. 500 Index Fund
2. EAFE Index Fund
31
