CUSTODIAN AGREEMENT
This Agreement is made effective the * day of *, 200*, by and between
*[NAME OF FUND] a *[business trust/corporation] organized and existing under the
laws of *[jurisdiction] ("Fund"), and STATE STREET BANK and TRUST COMPANY, a
Massachusetts trust company ("State Street"),
WITNESSETH:
WHEREAS, Fund is authorized to issue shares in separate series, with each
such series representing interests in a separate portfolio of securities and
other assets; and
WHEREAS, Fund intends that this Agreement be applicable to each of its
series existing on the date HEREOF (such series together with all other series
subsequently established by Fund and made subject to this Agreement in
accordance with Section 14.2, are referred to herein as the "Portfolio(s)");
NOW THEREFORE, in consideration of the mutual covenants and agreements
hereinafter contained, the parties hereto agree as follows:
XXXXXXX 0 XXXXXXXXXXX XX XXXXX XXXXXX AS CUSTODIAN. Fund hereby appoints State
Street as the custodian of the assets of the Portfolios, including securities
that Fund, on behalf of the applicable Portfolio, desires to be held in places
within the United States ("domestic securities") and securities it desires to be
held outside the United States ("foreign securities"). Fund, on behalf of the
Portfolio(s), agrees to deliver to State Street all securities and cash of the
Portfolios, and all payments of income, payments of principal or capital
distributions received by it with respect to all securities owned by the
Portfolio(s) from time to time, and the cash consideration received by it for
such new or treasury shares of beneficial interest of Fund representing
interests in the Portfolios ("Shares") as may be issued or sold from time to
time. State Street shall not be responsible for any property held or received by
Fund or a Portfolio and not delivered to State Street.
Upon receipt of "Proper Instructions" (as such term is defined in Section 6
hereof), State Street shall on behalf of the applicable Portfolio(s) from time
to time appoint one or more sub-custodians located in the United States, but
only in accordance with an applicable vote by the Board of Trustees or Directors
of Fund (the "Board") on behalf of the applicable Portfolio(s). State Street may
appoint as sub-custodian for Fund's foreign securities on behalf of the
applicable Portfolio(s) the foreign banking institutions and foreign securities
depositories designated in Schedules A and B hereto, but only in accordance with
the applicable provisions of Sections 3 and 4. State Street shall have no more
or less responsibility or liability to Fund on account of any actions or
omissions of any sub-custodian so appointed than any such sub-custodian has to
State Street.
SECTION 2 DUTIES WITH RESPECT TO PROPERTY HELD IN THE UNITED STATES
SECTION 2.1 HOLDING SECURITIES. State Street shall hold and physically
segregate for the account of each Portfolio all non-cash property to be held by
it in the United States, including all domestic securities other than securities
which are maintained pursuant to Section 2.8 in a clearing agency which acts as
a securities depository or in a book-entry system authorized by the U.S.
Department of the Treasury (each, a "U.S. Securities System").
SECTION 2.2 DELIVERY OF SECURITIES. State Street shall release and deliver
domestic securities held by State Street or in a U.S. Securities System account
of State Street ("U.S. Securities System Account") only upon receipt of Proper
Instructions on behalf of the applicable Portfolio, which may be continuing
instructions when deemed appropriate by the parties, and only in the following
cases:
1) Upon sale of such securities for the account of the Portfolio and
receipt of payment therefor;
2) Upon the receipt of payment in connection with any repurchase
agreement related to such securities entered into by the Fund on
behalf of the Portfolio;
3) In the case of a sale effected through a U.S. Securities System, in
accordance with the provisions of Section 2.8 hereof;
4) To the depository agent in connection with tender or other similar
offers for securities of the Portfolio;
5) To the issuer thereof or its agent when such securities are called,
redeemed, retired or otherwise become payable; provided that, in any
such case, the cash or other consideration is to be delivered to State
Street;
6) To the issuer thereof or its agent for transfer into the name of the
Portfolio or into the name of any nominee(s) of State Street or into
the name or nominee name of any agent appointed pursuant to Section
2.7 or of any sub-custodian appointed pursuant to Section 1; or for
exchange for a different number of bonds, certificates or other
evidence representing the same aggregate face amount or number of
units; provided that, in any such case, the new securities are to be
delivered to State Street;
7) Upon the sale of such securities for the account of the Portfolio, to
the broker or its clearing agent, against a receipt, for examination
in accordance with "street delivery" custom; provided that in any such
case, State Street shall have no responsibility or liability for any
loss arising from the delivery of such securities prior to receiving
payment for such securities except as may arise from State Street's
own negligence or willful misconduct;
8) For exchange or conversion pursuant to any corporate action, including
without limitation, any calls for redemption, tender or exchange
offers, declarations, record and payment dates and amounts of any
dividends or income, plan of merger, consolidation, recapitalization,
reorganization, readjustment, split-up of shares, changes of par
value, or conversion ("Corporate Action") of the securities of the
issuer of such securities, or pursuant to provisions for conversion
contained in such securities, or pursuant to any deposit agreement;
provided that, in any such case, the new securities and cash, if any,
are to be delivered to State Street;
9) In the case of warrants, rights or similar securities, the surrender
thereof in the exercise of such warrants, rights or similar securities
or the surrender of interim receipts or temporary securities for
definitive securities; provided that, in any such case, the new
securities and cash, if any, are to be delivered to State Street;
10) For delivery in connection with any loans of securities made by the
Portfolio, but only against receipt of adequate collateral as agreed
upon from time to time by State Street and Fund on behalf of the
Portfolio, which may be in the form of cash or obligations issued by
the United States government, its agencies or instrumentalities,
except that in connection with any loans for which collateral is to be
credited to the U.S. Securities System Account, State Street will not
be held liable or responsible for the delivery of securities owned by
the Portfolio prior to the receipt of such collateral;
11) For delivery as security in connection with any borrowing by Fund on
behalf of the Portfolio requiring a pledge of assets by Fund , but
only against receipt of amounts borrowed;
12) For delivery in accordance with the provisions of any agreement among
Fund on behalf of the Portfolio, State Street and a broker-dealer
registered under the Securities Exchange Act of 1934 (the "Exchange
Act") and a member of The National Association of Securities Dealers,
Inc. ("NASD"), relating to compliance with the rules of The Options
Clearing Corporation and of any registered national securities
exchange, or of any similar organization or organizations, regarding
escrow or other arrangements in connection with transactions by the
Portfolio;
13) For delivery in accordance with the provisions of any agreement among
Fund on behalf of the Portfolio, State Street, and a futures
commission merchant registered under the Commodity Exchange Act,
relating to compliance with the rules of the Commodity Futures Trading
Commission ("CFTC") and/or any contract market, or any similar
organization or organizations, regarding account deposits in
connection with transactions by the Portfolio;
14) Upon receipt of instructions from the transfer agent for Fund (the
"Transfer Agent") for delivery to such Transfer Agent or to the
holders of Shares in connection with distributions in kind, as may be
described from time to time in the currently effective prospectus and
statement of additional information related to the Portfolio (the
"Prospectus"), in satisfaction of requests by holders of Shares for
repurchase or redemption; and
15) For any other purpose, but only upon receipt of Proper Instructions on
behalf of the applicable Portfolio specifying the securities to be
delivered and naming the person or persons to whom delivery of such
securities shall be made.
SECTION 2.3 REGISTRATION OF SECURITIES. Domestic securities (other than
bearer securities) shall be registered in the name of the Portfolio or in the
name of any nominee of Fund on behalf of the Portfolio or of State Street which
nominee shall be assigned exclusively to the Portfolio, unless Fund has
authorized in writing the appointment of a nominee to be used in common with
other registered investment companies having the same investment advisor as the
Portfolio, or in the name or nominee name of any agent appointed pursuant to
Section 2.7 or in the name or nominee name of any sub-custodian appointed
pursuant to Section 1. All securities accepted by State Street under the terms
hereof shall be in "street name" or other good delivery form. If, however, Fund
directs State Street to maintain securities in "street name", State Street shall
utilize its best efforts only to timely collect income due Fund on such
securities and to notify Fund of relevant information regarding the securities
such as maturities and pendency of calls and Corporate Actions.
SECTION 2.4 BANK ACCOUNTS. State Street shall open and maintain a separate
bank account or accounts in the United States in the name of each Portfolio,
subject only to draft or order by State Street acting pursuant hereto, and shall
hold in such account or accounts, subject to the provisions hereof, all cash
received by it from or for the account of the Portfolio, other than cash
maintained by the Portfolio in a bank account established and used in accordance
with Rule 17f-3 under the Investment Company Act of 1940, as amended (the "1940
Act"). Funds held by State Street for a Portfolio may be deposited by it to its
credit as custodian in the banking department of State Street or in such other
banks or trust companies as it may in its discretion deem necessary or
desirable; provided, however, that every such bank or trust company shall be
qualified to act as a custodian under the 1940 Act and that each such bank or
trust company and the funds to be deposited with each such bank or trust company
shall on behalf of each applicable Portfolio be approved by vote of a majority
of the Board. Such funds shall be deposited by State Street in its capacity as
custodian and shall be withdrawable by State Street only in that capacity.
SECTION 2.5 COLLECTION OF INCOME. Subject to the provisions of Xxxxxxx 0.0,
Xxxxx Xxxxxx shall collect on a timely basis all income and other payments with
respect to registered domestic securities to which each Portfolio shall be
entitled either by law or pursuant to custom in the securities business, and
shall collect on a timely basis all income and other payments with respect to
bearer domestic securities if, on the date of payment by the issuer, such
securities are held by State Street or its agent thereof and shall credit such
income, as collected, to such Portfolio's account. Without limiting the
generality of the foregoing, State Street shall detach and present for payment
all coupons and other income items requiring presentation as and when they
become due and shall collect interest when due on securities held hereunder.
Income due each Portfolio on securities loaned pursuant to the provisions of
Section 2.2 (10) shall be the responsibility of Fund. State Street will have no
duty or responsibility in connection therewith, other than to provide Fund with
such information or data as may be necessary to assist Fund in arranging for the
timely delivery to State Street of the income to which the Portfolio is properly
entitled.
SECTION 2.6 PAYMENT OF FUND MONIES. Upon receipt of Proper Instructions on
behalf of the applicable Portfolio, which may be continuing instructions when
deemed appropriate by the parties, State Street shall pay out monies of a
Portfolio in the following cases only:
1) Upon the purchase of domestic securities, options, futures contracts
or options on futures contracts for the account of the Portfolio but
only (a) against the delivery of such securities or evidence of title
to such options, futures contracts or options on futures contracts to
State Street (or any bank, banking firm or trust company doing
business in the United States or abroad which is qualified under the
1940 Act to act as a custodian and has been designated by State Street
as its agent for this purpose) registered in the name of the Portfolio
or in the name of a nominee of State Street referred to in Section 2.3
hereof or in proper form for transfer; (b) in the case of a purchase
effected through a U.S. Securities System, in accordance with the
conditions set forth in Section 2.8 hereof; (c) in the case of
repurchase agreements entered into between Fund on behalf of the
Portfolio and State Street, or another bank, or a broker-dealer which
is a member of NASD, (i) against delivery of the securities either in
certificate form or through an entry crediting State Street's account
at the Federal Reserve Bank with such securities or (ii) against
delivery of the receipt evidencing purchase by the Portfolio of
securities owned by State Street along with written evidence of the
agreement by State Street to repurchase such securities from the
Portfolio; or (d) for transfer to a time deposit account of Fund in
any bank, whether domestic or foreign; such transfer may be effected
prior to receipt of a confirmation from a broker and/or the applicable
bank pursuant to Proper Instructions ;
2) In connection with conversion, exchange or surrender of securities
owned by the Portfolio as set forth in Section 2.2 hereof;
3) For the redemption or repurchase of Shares issued as set forth in
Section 5 hereof;
4) For the payment of any expense or liability incurred by the Portfolio,
including but not limited to the following payments for the account of
the Portfolio: interest, taxes, management, accounting, transfer agent
and legal fees, and operating expenses of Fund whether or not such
expenses are to be in whole or part capitalized or treated as deferred
expenses;
5) For the payment of any dividends on Shares declared pursuant to the
Declaration of Trust, Articles of Incorporation, Bylaws or other
governing documents of Fund (collectively, the "governing documents");
6) For payment of the amount of dividends received in respect of
securities sold short; and
7) For any other purpose, but only upon receipt of Proper Instructions on
behalf of the Portfolio specifying the amount of such payment and
naming the person or persons to whom such payment is to be made.
SECTION 2.7 APPOINTMENT OF AGENTS. State Street may at any time or times in
its discretion appoint (and may at any time remove) any other bank or trust
company which is itself qualified under the 1940 Act to act as a custodian, as
its agent to carry out such of the provisions of this Section 2 as State Street
may from time to time direct; provided, however, that the appointment of any
agent shall not relieve State Street of its responsibilities or liabilities
hereunder.
SECTION 2.8 DEPOSIT OF FUND ASSETS IN U.S. SECURITIES SYSTEMS. State Street
may deposit and/or maintain securities owned by a Portfolio in the U.S.
Securities System Account subject to the following provisions:
1) Such Account shall not include any assets of State Street other than
assets held as a fiduciary, custodian or otherwise for customers;
2) The records of State Street shall identify by book-entry those
securities belonging to the Portfolio;
0) Xxxxx Xxxxxx shall pay for securities purchased for the account of the
Portfolio upon (a) receipt of advice from the U.S. Securities System
that such securities have been transferred to the U.S. Securities
System Account, and (b) the making of an entry on the records of State
Street to reflect such payment and transfer for the account of the
Portfolio.
4) State Street shall transfer securities sold for the account of the
Portfolio upon (a) receipt of advice from the U.S. Securities System
that payment for such securities has been transferred to the U.S.
Securities System Account, and (b) the making of an entry on the
records of State Street to reflect such transfer and payment for the
account of the Portfolio.
5) Copies of all advices from the U.S. Securities System of transfers of
securities for the account of the Portfolio shall identify the
Portfolio, be maintained for the Portfolio by State Street and be
provided to Fund at its request. Upon request, State Street shall
furnish Fund on behalf of the Portfolio confirmation of each transfer
to or from the account of the Portfolio in the form of a written
advice or notice and shall furnish to Fund on behalf of the Portfolio
copies of daily transaction sheets reflecting each day's transactions
in the U.S. Securities System for the account of the Portfolio. State
Street shall provide Fund with any report obtained by State Street on
the U.S. Securities System's accounting system, internal accounting
control and procedures for safeguarding securities deposited in the
U.S. Securities System;
6) Anything to the contrary herein notwithstanding, State Street shall be
liable to Fund for the benefit of the Portfolio for any loss or damage
to the Portfolio resulting from use of the U.S. Securities System by
reason of any negligence, misfeasance or misconduct of State Street or
any of its agents or of any of its or their employees or from failure
of State Street or any such agent to enforce effectively such rights
as it may have against the U.S. Securities System; at the election of
Fund, it shall be entitled to be subrogated to the rights of State
Street with respect to any claim against the U.S. Securities System or
any other person which State Street may have as a consequence of any
such loss or damage if and to the extent that the Portfolio has not
been made whole for any such loss or damage.
SECTION 2.9 SEGREGATED ACCOUNT. State Street shall upon receipt of Proper
Instructions on behalf of each applicable Portfolio establish and maintain a
segregated account or accounts for and on behalf of each such Portfolio, into
which account or accounts may be transferred cash and/or securities, including
securities maintained in the U.S. Securities System Account; (1) in accordance
with the provisions of any agreement among Fund on behalf of the Portfolio,
State Street 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 CFTC or
any registered contract market), or of any similar organization or
organizations, regarding escrow or other arrangements in connection with
transactions by the Portfolio, (2) for purposes of segregating cash or
government securities in connection with options purchased, sold or written by
the Portfolio or commodity futures contracts or options thereon purchased or
sold by the Portfolio, (3) for the purposes of compliance by the Portfolio with
the procedures required by Investment Company Act Release No. 10666, or any
subsequent release of the U.S. Securities and Exchange Commission (the "SEC"),
or interpretative opinion of the staff of the SEC, relating to the maintenance
of segregated accounts by registered investment companies, and (4) for any other
purpose upon receipt of Proper Instructions on behalf of the applicable
Portfolio.
SECTION 2.10 OWNERSHIP CERTIFICATES FOR TAX PURPOSES. State Street shall
execute ownership and other certificates and affidavits for all federal and
state tax purposes in connection with receipt of income or other payments with
respect to domestic securities of each Portfolio and in connection with
transfers of securities.
SECTION 2.11 PROXIES. State Street shall, with respect to domestic
securities , cause to be promptly executed by the registered holder of such
securities, if the securities are registered otherwise than in the name of the
Portfolio or a nominee of the Portfolio, all proxies, without indication of the
manner in which such proxies are to be voted, and shall promptly deliver to the
Portfolio such proxies, all proxy soliciting materials and all notices relating
to such securities.
SECTION 2.12 COMMUNICATIONS RELATING TO PORTFOLIO SECURITIES. Subject to
the provisions of Xxxxxxx 0.0, Xxxxx Xxxxxx shall transmit promptly to Fund for
each Portfolio all written information received by State Street from issuers of
the securities being held for the Portfolio with respect to Corporate Actions,
notices of exercise of call and put options written by Fund on behalf of the
Portfolio, and the maturity of futures contracts purchased or sold by the
Portfolio. With respect to tender or exchange offers, State Street shall
transmit promptly to the Portfolio all written information received by State
Street from issuers of the securities whose tender or exchange is sought and
from the party (or its agents) making the tender or exchange offer. If the
Portfolio desires to take action with respect to any Corporate Action, the
Portfolio shall provide Proper Instruction to State Street at least three
business days prior to the date on which State Street is to take such action.
SECTION 3 PROVISIONS RELATING TO RULES 17F-5 AND 17F-7
SECTION 3.1 DEFINITIONS. As used throughout this Agreement, the capitalized
terms set forth below shall have the indicated meanings:
"Country Risk" means all factors reasonably related to the systemic risk of
holding Foreign Assets in a particular country including, but not limited to,
such country's political environment, economic and financial infrastructure
(including any Eligible Securities Depository operating in the country),
prevailing or developing custody and settlement practices, and laws and
regulations applicable to the safekeeping and recovery of Foreign Assets held in
custody in that country.
"Eligible Foreign Custodian" has the meaning set forth in section (a)(1) of Rule
17f-5, including a majority-owned or indirect subsidiary of a U.S. Bank (as
defined in Rule 17f-5), a bank holding company meeting the requirements of an
Eligible Foreign Custodian (as set forth in Rule 17f-5 or by other appropriate
action of the SEC, or a foreign branch of a Bank (as defined in section 2(a)(5)
of the 0000 Xxx) meeting the requirements of a custodian under section 17(f) of
the 1940 Act; the term does not include any Eligible Securities Depository.
"Eligible Securities Depository" has the meaning set forth in section (b)(1) of
Rule 17f-7.
"Foreign Assets" means any of the Portfolios' investments (including foreign
currencies) for which the primary market is outside the United States and such
cash and cash equivalents as are reasonably necessary to effect the Portfolios'
transactions in such investments.
"Foreign Custody Manager" has the meaning set forth in section (a)(3) of Rule
17f-5.
"Rule 17f-5" means Rule 17f-5 promulgated under the 1940 Act.
"Rule 17f-7" means Rule 17f-7 promulgated under the 1940 Act.
SECTION 3.2 STATE STREET AS FOREIGN CUSTODY MANAGER
3.2.1DELEGATION TO STATE STREET AS FOREIGN CUSTODY MANAGER. Fund, by
resolution adopted by its Board, hereby delegates to State Street,
subject to section (b) of Rule 17f-5, the responsibilities set forth
in this Section 3.2 with respect to Foreign Assets held outside the
United States, and State Street hereby accepts such delegation as
Foreign Custody Manager with respect to the Portfolios.
3.2.2COUNTRIES COVERED. The Foreign Custody Manager shall be responsible
for performing the delegated responsibilities defined below only with
respect to the countries and custody arrangements for each such
country listed on Schedule A, which list of countries may be amended
from time to time by Fund with the agreement of the Foreign Custody
Manager. The Foreign Custody Manager shall list on Schedule A the
Eligible Foreign Custodians selected by the Foreign Custody Manager to
maintain the assets of the Portfolios, which list of Eligible Foreign
Custodians may be amended from time to time in the sole discretion of
the Foreign Custody Manager. The Foreign Custody Manager will provide
amended versions of Schedule A in accordance with Section 3.2.5
hereof.
Upon the receipt by the Foreign Custody Manager of Proper Instructions
to open an account or to place or maintain Foreign Assets in a country
listed on Schedule A, and the fulfillment by Fund, on behalf of the
Portfolios, of the applicable account opening requirements for such
country, the Foreign Custody Manager shall be deemed to have been
delegated by the Board on behalf of the Portfolios responsibility as
Foreign Custody Manager with respect to that country and to have
accepted such delegation. Execution hereof by Fund shall be deemed to
be a Proper Instruction to open an account, or to place or maintain
Foreign Assets, in each country listed on Schedule A in which State
Street has previously placed or currently maintains Foreign Assets
pursuant to the terms of the contract governing the custody
arrangement. Following the receipt of Proper Instructions directing
the Foreign Custody Manager to close the account of a Portfolio with
the Eligible Foreign Custodian selected by the Foreign Custody Manager
in a designated country, the delegation by the Board on behalf of the
Portfolios to State Street as Foreign Custody Manager for that country
shall be deemed to have been withdrawn and State Street shall
immediately cease to be the Foreign Custody Manager of the Portfolios
with respect to that country.
The Foreign Custody Manager may withdraw its acceptance of delegated
responsibilities with respect to a designated country upon written
notice to Fund. Thirty days (or such longer period to which the
parties agree in writing) after receipt of any such notice by Fund,
State Street shall have no further responsibility in its capacity as
Foreign Custody Manager to Fund with respect to the country as to
which State Street's acceptance of delegation is withdrawn.
3.2.3 SCOPE OF DELEGATED RESPONSIBILITIES:
(a) SELECTION OF ELIGIBLE FOREIGN CUSTODIANS. Subject to the provisions of
this Section 3.2, the Foreign Custody Manager may place and maintain
the Foreign Assets in the care of the Eligible Foreign Custodian
selected by the Foreign Custody Manager in each country listed on
Schedule A, as amended from time to time. In performing its delegated
responsibilities as Foreign Custody Manager to place or maintain
Foreign Assets with an Eligible Foreign Custodian, the Foreign Custody
Manager shall determine that the Foreign Assets will be subject to
reasonable care, based on the standards applicable to custodians in
the country in which the Foreign Assets will be held by that Eligible
Foreign Custodian, after considering all factors relevant to the
safekeeping of such assets, including, without limitation the factors
specified in Rule 17f-5(c)(1).
(b) CONTRACTS WITH ELIGIBLE FOREIGN CUSTODIANS. The Foreign Custody
Manager shall determine that the contract governing the foreign
custody arrangements with each Eligible Foreign Custodian selected by
the Foreign Custody Manager will satisfy the requirements of Rule
17f-5(c)(2).
(c) MONITORING. In each case in which the Foreign Custody Manager
maintains Foreign Assets with an Eligible Foreign Custodian selected
by the Foreign Custody Manager, the Foreign Custody Manager shall
establish a system to monitor (i) the appropriateness of maintaining
the Foreign Assets with such Eligible Foreign Custodian and (ii) the
contract governing the custody arrangements established by the Foreign
Custody Manager with the Eligible Foreign Custodian. In the event the
Foreign Custody Manager determines that the custody arrangements with
an Eligible Foreign Custodian it has selected are no longer
appropriate, the Foreign Custody Manager shall notify the Board in
accordance with Section 3.2.5 hereunder.
3.2.4 GUIDELINES FOR THE EXERCISE OF DELEGATED AUTHORITY. For purposes of
this Section 3.2, the Board shall be deemed to have considered and
determined to accept such Country Risk as is incurred by placing and
maintaining the Foreign Assets in each country for which State Street
is serving as Foreign Custody Manager of the Portfolios.
3.2.5 REPORTING REQUIREMENTS. The Foreign Custody Manager shall report the
withdrawal of the Foreign Assets from an Eligible Foreign Custodian
and the placement of such Foreign Assets with another Eligible Foreign
Custodian by providing to the Board an amended Schedule A at the end
of the calendar quarter in which an amendment to such Schedule has
occurred. The Foreign Custody Manager shall make written reports
notifying the Board of any other material change in the foreign
custody arrangements of the Portfolios described in this Section 3.2
after the occurrence of the material change.
3.2.6 STANDARD OF CARE AS FOREIGN CUSTODY MANAGER. In performing the
responsibilities delegated to it, the Foreign Custody Manager agrees
to exercise reasonable care, prudence and diligence such as a person
having responsibility for the safekeeping of assets of management
investment companies registered under the 1940 Act would exercise.
3.2.7 REPRESENTATIONS WITH RESPECT TO RULE 17F-5. The Foreign Custody
Manager represents to Fund that it is a U.S. Bank as defined in
section (a)(7) of Rule 17f-5. Fund represents to State Street that the
Board has determined that it is reasonable for the Board to rely on
State Street to perform the responsibilities delegated pursuant hereto
to State Street as the Foreign Custody Manager of the Portfolios.
3.2.8 EFFECTIVE DATE AND TERMINATION AS FOREIGN CUSTODY MANAGER. The
Board's delegation to State Street as Foreign Custody Manager of the
Portfolios shall be effective as of the date hereof and shall remain
in effect until terminated at any time, without penalty, by written
notice from the terminating party to the non-terminating party.
Termination will become effective thirty (30) days after receipt by
the non-terminating party of such notice. The provisions of Section
3.2.2 hereof shall govern the delegation to and termination of State
Street as Foreign Custody Manager of the Portfolios with respect to
designated countries.
SECTION 3.3 ELIGIBLE SECURITIES DEPOSITORIES.
3.3.1 ANALYSIS AND MONITORING. State Street shall (a) provide Fund (or its
duly-authorized investment manager or investment advisor) with an
analysis of the custody risks associated with maintaining assets with
the Eligible Securities Depositories set forth on Schedule B hereto in
accordance with section (a)(1)(i)(A) of Rule 17f-7, and (b) monitor
such risks on a continuing basis, and promptly notify Fund (or its
duly-authorized investment manager or investment advisor) of any
material change in such risks, in accordance with section (a)(1)(i)(B)
of Rule 17f-7.
3.3.2 STANDARD OF CARE. State Street agrees to exercise reasonable care,
prudence and diligence in performing the duties set forth in Section
3.3.1.
SECTION 4 DUTIES WITH RESPECT TO PROPERTY HELD OUTSIDE THE UNITED STATES
SECTION 4.1 DEFINITIONS. As used throughout this Agreement, the capitalized
terms set forth below shall have the indicated meanings:
"Foreign Securities System" means an Eligible Securities Depository listed on
Schedule B hereto.
"Foreign Sub-Custodian" means a foreign banking institution serving as an
Eligible Foreign Custodian.
SECTION 4.2 HOLDING SECURITIES. State Street shall identify on its
books as belonging to the Portfolios the foreign securities held by each Foreign
Sub-Custodian or Foreign Securities System. State Street may hold foreign
securities for all of its customers, including the Portfolios, with any Foreign
Sub-Custodian in an account that is identified as belonging to State Street for
the benefit of its customers, provided however, that (1) the records of State
Street with respect to foreign securities which are maintained in such account
shall identify those securities as belonging to the Portfolios and (2), to the
extent permitted and customary in the market in which the account is maintained,
State Street shall require that securities so held by the Foreign Sub-Custodian
be held separately from any assets of such Foreign Sub-Custodian or of other
customers of such Foreign Sub-Custodian.
SECTION 4.3 FOREIGN SECURITIES SYSTEMS. Foreign securities shall be
maintained in a Foreign Securities System in a designated country through
arrangements implemented by State Street or a Foreign Sub-Custodian, as
applicable, in such country. (Foreign. Securities Systems and U.S. Securities
Systems are collectively referred to herein as "Securities Systems").
SECTION 4.4 TRANSACTIONS IN FOREIGN CUSTODY ACCOUNT
4.4.1 DELIVERY OF FOREIGN ASSETS. State Street or a Foreign Sub-Custodian
shall release and deliver foreign securities held by State Street or
such Foreign Sub-Custodian, or in a Foreign Securities System account,
only upon receipt of Proper Instructions, which may be continuing
instructions when deemed appropriate by the parties, and only in the
following cases:
(a) upon the sale of such foreign securities for the Portfolio in
accordance with commercially reasonable market practice in the
country where such foreign securities are held or traded,
including, without limitation: (i) delivery against expectation
of receiving later payment; or (ii) in the case of a sale
effected through a Foreign Securities System, in accordance with
the rules governing the operation of the Foreign Securities
System;
(b) in connection with any repurchase agreement related to foreign
securities;
(c) to the depository agent in connection with tender or other
similar offers for foreign securities;
(d) to the issuer thereof or its agent when such foreign securities
are called, redeemed, retired or otherwise become payable;
(e) to the issuer thereof, or its agent, for transfer into the name
of State Street (or the name of the respective Foreign
Sub-Custodian or of any nominee of State Street or such Foreign
Sub-Custodian) or for exchange for a different number of bonds,
certificates or other evidence representing the same aggregate
face amount or number of units;
(f) to brokers, clearing banks or other clearing agents for
examination or trade execution in accordance with market custom;
provided that in any such case the Foreign Sub-Custodian shall
have no responsibility or liability for any loss arising from the
delivery of such securities prior to receiving payment for such
securities except as may arise from the Foreign Sub-Custodian's
own negligence or willful misconduct;
(g) for exchange or conversion pursuant to any plan of merger,
consolidation, recapitalization, reorganization or readjustment
of the securities of the issuer of such securities, or pursuant
to provisions for conversion contained in such securities, or
pursuant to any deposit agreement;
(h) in the case of warrants, rights or similar foreign securities,
the surrender thereof in the exercise of such warrants, rights or
similar securities or the surrender of interim receipts or
temporary securities for definitive securities;
(i) for delivery as security in connection with any borrowing by the
Portfolios requiring a pledge of assets by the Portfolios;
(j) in connection with trading in options and futures contracts,
including delivery as original margin and variation margin;
(k) in connection with the lending of foreign securities; and
(l) for any other purpose, but only upon receipt of Proper
Instructions specifying the foreign securities to be delivered
and naming the person or persons to whom delivery of such
securities shall be made.
4.4.2 PAYMENT OF PORTFOLIO MONIES. Upon receipt of Proper Instructions,
which may be continuing instructions when deemed appropriate by the
parties, State Street shall pay out, or direct the respective Foreign
Sub-Custodian or the respective Foreign Securities System to pay out,
monies of a Portfolio in the following cases only:
(a) upon the purchase of foreign securities for the Portfolio, unless
otherwise directed by Proper Instructions, by (i) delivering
money to the seller thereof or to a dealer therefor (or an agent
for such seller or dealer) against expectation of receiving later
delivery of such foreign securities; or (ii) in the case of a
purchase effected through a Foreign Securities System, in
accordance with the rules governing the operation of such Foreign
Securities System;
(b) in connection with the conversion, exchange or surrender of
foreign securities;
(c) for the payment of any expense or liability of the Portfolio,
including but not limited to the following payments: interest,
taxes, investment advisory fees, transfer agency fees, fees
hereunder, legal fees, accounting fees, and other operating
expenses;
(d) for the purchase or sale of foreign exchange or foreign exchange
contracts for the Portfolio, including transactions executed with
or through State Street or its Foreign Sub-Custodians;
(e) in connection with trading in options and futures contracts,
including delivery as original margin and variation margin;
(f) for payment of part or all of the dividends received in respect
of securities sold short;
(g) in connection with the borrowing or lending of foreign
securities; and
(h) for any other purpose, but only upon receipt of Proper
Instructions specifying the amount of such payment and naming the
person or persons to whom such payment is to be made.
4.4.3 MARKET CONDITIONS. Notwithstanding any provision hereof to the
contrary, settlement and payment for Foreign Assets received for the
account of the Portfolios and delivery of Foreign Assets maintained
for the account of the Portfolios may be effected in accordance with
the customary established securities trading or processing practices
and procedures in the country or market in which the transaction
occurs, including, without limitation, delivering Foreign Assets to
the purchaser thereof or to a dealer therefor (or an agent for such
purchaser or dealer) with the expectation of receiving later payment
for such Foreign Assets from such purchaser or dealer.
State Street shall provide to the Board the information with respect
to custody and settlement practices in countries in which State Street
employs a Foreign Sub-Custodian described on Schedule C hereto at the
time or times set forth on such Schedule. State Street may revise
Schedule C from time to time, provided that no such revision shall
result in the Board being provided with substantively less information
than had been previously provided hereunder.
SECTION 4.5 REGISTRATION OF FOREIGN SECURITIES. The foreign securities
maintained in the custody of a Foreign Sub-Custodian (other than bearer
securities) shall be registered in the name of the applicable Portfolio or in
the name of State Street or in the name of any Foreign Sub-Custodian or in the
name of any nominee of the foregoing, and Fund on behalf of such Portfolio
agrees to hold any such nominee harmless from any liability as a holder of
record of such foreign securities. State Street or a Foreign Sub-Custodian shall
not be obligated to accept securities on behalf of a Portfolio under the terms
hereof unless the form of such securities and the manner in which they are
delivered are in accordance with reasonable market practice.
SECTION 4.6 BANK ACCOUNTS. State Street shall identify on its books as
belonging to Fund cash (including cash denominated in foreign currencies)
deposited with State Street. Where State Street is unable to maintain, or market
practice does not facilitate the maintenance of, cash on the books of State
Street, a bank account or bank accounts shall be opened and maintained outside
the United States on behalf of a Portfolio with a Foreign Sub-Custodian. All
accounts referred to in this Section shall be subject only to draft or order by
State Street (or, if applicable, such Foreign Sub-Custodian) acting pursuant to
the terms hereof to hold cash received by or from or for the account of the
Portfolio. Cash maintained on the books of State Street (including its branches,
subsidiaries and affiliates), regardless of currency denomination, is maintained
in bank accounts established under, and subject to the laws of, The Commonwealth
of Massachusetts.
SECTION 4.7 COLLECTION OF INCOME. State Street shall use reasonable
commercial efforts to collect all income and other payments with respect to the
Foreign Assets held hereunder to which the Portfolios shall be entitled and
shall credit such income, as collected, to the applicable Portfolio. In the
event that extraordinary measures are required to collect such income, Fund and
State Street shall consult as to such measures and as to the compensation and
expenses of State Street relating to such measures.
SECTION 4.8 SHAREHOLDER RIGHTS. With respect to the foreign securities held
pursuant to this Xxxxxxx 0, Xxxxx Xxxxxx will use reasonable commercial efforts
to facilitate the exercise of voting and other shareholder rights, subject
always to the laws, regulations and practical constraints that may exist in the
country where such securities are issued. Fund acknowledges that local
conditions, including lack of regulation, onerous procedural obligations, lack
of notice and other factors may have the effect of severely limiting the ability
of Fund to exercise shareholder rights.
SECTION 4.9 COMMUNICATIONS RELATING TO FOREIGN SECURITIES. State Street
shall transmit promptly to Fund written information with respect to Corporate
Actions received by State Street via the Foreign Sub-Custodians from issuers of
the foreign securities being held for the account of the Portfolios. With
respect to tender or exchange offers, State Street shall transmit promptly to
Fund written information with respect to materials so received by State Street
from issuers of the foreign securities whose tender or exchange is sought or
from the party (or its agents) making the tender or exchange offer. State Street
shall not be liable for any untimely exercise of any action, right or power in
connection with a Corporate Action unless (1) State Street or the respective
Foreign Sub-Custodian is in actual possession of such foreign securities or
property and (2) State Street receives Proper Instructions with regard to the
Corporate Action, and both (1) and (2) occur at least three business days prior
to the date on which State Street is to take action to exercise such right or
power.
SECTION 4.10 LIABILITY OF FOREIGN SUB-CUSTODIANS. Each agreement pursuant
to which State Street employs a Foreign Sub-Custodian shall, to the extent
possible, require the Foreign Sub-Custodian to exercise reasonable care in the
performance of its duties, and to indemnify, and hold harmless, State Street
from and against any loss, damage, cost, expense, liability or claim arising out
of or in connection with the Foreign Sub-Custodian's performance of such
obligations. At Fund's election, the Portfolios shall be entitled to be
subrogated to the rights of State Street with respect to any claims against a
Foreign Sub-Custodian as a consequence of any such loss, damage, cost, expense,
liability or claim if and to the extent that the Portfolios have not been made
whole for any such loss, damage, cost, expense, liability or claim.
SECTION 4.11 TAX LAW. State Street shall have no responsibility or
liability for any obligations now or hereafter imposed on Fund, the Portfolios
or State Street as custodian of the Portfolios by the tax law of the United
States or of any state or political subdivision thereof. It shall be the
responsibility of Fund to notify State Street of the obligations imposed on Fund
with respect to the Portfolios or State Street as custodian of the Portfolios by
the tax law of countries other than those mentioned in the above sentence,
including responsibility for withholding and other taxes, assessments or other
governmental charges, certifications and governmental reporting. The sole
responsibility of State Street with regard to such tax law shall be to use
reasonable efforts to assist Fund with respect to any claim for exemption or
refund under the tax law of countries for which Fund has provided such
information.
SECTION 4.12 LIABILITY OF STATE STREET. State Street shall be liable for
the acts or omissions of a Foreign Sub-Custodian to the same extent as set forth
with respect to sub-custodians generally herein and, regardless of whether
assets are maintained in the custody of a Foreign Sub-Custodian or a Foreign
Securities System, State Street shall not be liable for any loss, damage, cost,
expense, liability or claim resulting from nationalization, expropriation,
currency restrictions, or acts of war or terrorism, or any other loss where the
Sub-Custodian has otherwise acted with reasonable care.
SECTION 5 PAYMENTS FOR SALES OR REPURCHASES OR REDEMPTIONS OF SHARES. State
Street shall receive from the distributor for the Shares or from the Transfer
Agent and deposit into the account of the appropriate Portfolio such payments as
are received for Shares thereof issued or sold from time to time by Fund. State
Street will provide timely notification to Fund on behalf of each such Portfolio
and the Transfer Agent of any receipt by it of payments for Shares of such
Portfolio.
From such funds as may be available for the purpose, State Street shall, upon
receipt of instructions from the Transfer Agent, make funds available for
payment to holders of Shares who have delivered to the Transfer Agent a request
for redemption or repurchase of their Shares. In connection with the redemption
or repurchase of Shares, State Street is authorized upon receipt of instructions
from the Transfer Agent to wire funds to or through a commercial bank designated
by the redeeming shareholders. In connection with the redemption or repurchase
of Shares, State Street shall honor checks drawn on State Street by a holder of
Shares, which checks have been furnished by Fund to the holder of Shares, when
presented to State Street in accordance with such procedures and controls as are
mutually agreed upon from time to time between Fund and State Street.
SECTION 6 PROPER INSTRUCTIONS. Proper Instructions as used throughout this
Agreement means a writing signed or initialed by one or more person or persons
as the Board shall have from time to time authorized. Each such writing shall
set forth the specific transaction or type of transaction involved, including a
specific statement of the purpose for which such action is requested. Oral
instructions will be considered Proper Instructions if State Street reasonably
believes them to have been given by a person authorized to give such
instructions with respect to the transaction involved. Fund shall cause all oral
instructions to be confirmed in writing. Proper Instructions may include
communications effected directly between electro-mechanical or electronic
devices, provided that Fund and State Street agree to security procedures. For
purposes of this Section, Proper Instructions shall include instructions
received by State Street pursuant to any three-party agreement that requires a
segregated asset account in accordance with Section 2.9 and instructions given
by Fund pursuant to the Funds Transfer Operating Guidelines attached hereto.
SECTION 7 ACTIONS PERMITTED WITHOUT EXPRESS AUTHORITY. State Street may in its
discretion, without express authority from Fund on behalf of each applicable
Portfolio: (1) make payments to itself or others for minor expenses of handling
securities or other similar items relating to its duties hereunder, provided
that all such payments shall be accounted for to Fund on behalf of the
Portfolio; (2) surrender securities in temporary form for securities in
definitive form; (3) endorse for collection, in the name of the Portfolio,
checks, drafts and other negotiable instruments; and (4) in general, attend to
all non-discretionary details in connection with the sale, exchange,
substitution, purchase, transfer and other dealings with the securities and
property of the Portfolio except as otherwise directed by the Board.
SECTION 8 DUTIES WITH RESPECT TO ACCOUNTS AND RECORDS. State Street shall with
respect to each Portfolio create and maintain all records relating to the
activities and obligations under this Agreement in such manner as will meet the
obligations of the Fund under the 1940 Act, with particular attention to Section
31 thereof and Rules 31a-1 and 31a-2 thereunder. All such records shall be the
property of Fund and shall at all times during the regular business hours of
State Street be open for inspection by duly authorized officers, employees or
agents of the Fund and employees and agents of the SEC.
SECTION 9 OPINION OF FUND'S INDEPENDENT ACCOUNTANT. State Street shall take all
reasonable action, as Fund on behalf of each applicable Portfolio may from time
to time request, to obtain from year to year favorable opinions from Fund's
independent accountants with respect to its activities hereunder in connection
with the preparation of Fund's Form N-1A, and Form N-SAR or other annual reports
to the SEC and with respect to any other requirements thereof.
SECTION 10 REPORTS TO FUND BY INDEPENDENT PUBLIC ACCOUNTANTS. State Street shall
provide Fund, on behalf of each of the Portfolios at such times as Fund may
reasonably require, with reports by independent public accountants on the
accounting system, internal accounting control and procedures for safeguarding
securities, futures contracts and options on futures contracts, including
securities deposited and/or maintained in any Securities System, relating to the
services provided by State Street hereunder; such reports, shall be of
sufficient scope and in sufficient detail, as may reasonably be required by Fund
to provide reasonable assurance that any material inadequacies would be
disclosed by such examination, and, if there are no such inadequacies, the
reports shall so state.
SECTION 11 COMPENSATION OF STATE STREET. State Street shall be entitled to
reasonable compensation for its services and expenses as custodian, as agreed
upon from time to time between Fund on behalf of each applicable Portfolio and
State Street.
SECTION 12 RESPONSIBILITY OF STATE STREET. So long as and to the extent that it
is in the exercise of reasonable care, State Street shall not be responsible or
liable for, and Fund shall indemnify and hold State Street harmless from and
against, any and all costs, expenses, losses, damages, charges, counsel fees
(including without limitation, disbursements and the allocable cost of in-house
counsel), payments and liabilities which may be asserted against or incurred by
State Street or for which State Street may be held to be liable, arising out of
or attributable to:
1) The purchase or sale of any assets or foreign currency positions.
Without limiting the generality of the foregoing, State Street is
under no duty or obligation to inquire into the title, validity or
genuineness of any property or evidence of title thereto received by
it or delivered by it pursuant hereto;
2) State Street's action upon any notice, request, consent, certificate
or other instrument reasonably believed by it to be genuine and to be
signed by the proper party or parties, including any futures
commission merchant acting pursuant to the terms of a three-party
futures or options agreement. State Street may receive and accept a
copy of a resolution certified by the Secretary or an Assistant
Secretary of Fund ("Certified Resolution") as conclusive evidence (a)
of the authority of any person to act in accordance with such
resolution or (b) of any determination or of any action by the Board
as described in such resolution, and such resolution may be considered
as in full force and effect until receipt by State Street of written
notice to the contrary;
3) State Street's action or omission to act in good faith without
negligence, including, without limitation, acting in accordance with
any Proper Instruction; and provided further that in no event shall
State Street by liable for indirect, special or consequential damages;
4) State Street's action or failure to act in good faith reliance upon
advice of counsel (who may be counsel for Fund) on all matters, or on
the instruction, notice, request, consent, advice, representation,
warranty or statements of any officer or employee of Fund, or Fund's
accountants or other authorized individuals. State Street may receive
and accept a copy of an instruction of Fund as conclusive evidence (a)
of the authority of any person to act in accordance with such
instruction and (b) of any determination or of any action by said
party, in each case as described in such instruction and such
instruction may be considered as in full force and effect until
receipt by State Street of written notice to the contrary;
5) Any loss, liability, claim or expense resulting from or caused by
anything which is part of Country Risk (as defined in Section 3
hereof), including without limitation nationalization, expropriation,
currency restrictions, or acts of war, revolution, riots or terrorism.
6) Except as may arise from State Street's own negligence or willful
misconduct or the negligence or willful misconduct of a sub-custodian
or agent, the failure or delay in performance of its obligations
hereunder resulting from or caused by; (a) events or circumstances
beyond the reasonable control of State Street or any sub-custodian or
Securities System or any agent or nominee of any of the foregoing,
including, without limitation, the interruption, suspension or
restriction of trading on or the closure of any securities market,
power or other mechanical or technological failures or interruptions,
computer viruses or communications disruptions, work stoppages,
natural disasters, or other similar events or acts; (b) errors by Fund
or its duly-authorized investment manager or investment advisor in
their instructions to State Street provided such instructions have
been in accordance with this Agreement; (c) the bankruptcy,
insolvency, or receivership of any sub-custodian; (d) the insolvency
of or acts or omissions by a Securities System; (e) any delay or
failure of any broker, agent or intermediary, central bank or other
commercially prevalent payment or clearing system to deliver to State
Street's sub-custodian or agent securities purchased or in the
remittance or payment made in connection with securities sold; (f) any
delay or failure of any company, corporation, or other body in charge
of registering or transferring securities in the name of State Street,
Fund, State Street's sub-custodians, nominees or agents or any
consequential losses arising out of such delay or failure to transfer
such securities including non-receipt of bonus, dividends and rights
and other accretions or benefits; (g) delays or inability to perform
its duties due to any disorder in market infrastructure with respect
to any particular security or Securities System; and (h) any provision
of any present or future law or regulation or order of the United
States of America, or any state thereof, or any other country, or
political subdivision thereof or of any court of competent
jurisdiction.
7) State Street's payment of money as requested by Fund, or the taking of
any action which may, in the opinion of State Street, result in State
Street or its nominee assigned to Fund or the Portfolio being liable
for the payment of money or incurring liability of some other form. As
a prerequisite to requiring State Street to take such action, Fund on
behalf of the Portfolio shall provide indemnity to State Street in an
amount and form satisfactory to it. If Fund requires State Street, its
affiliates, subsidiaries or agents, to advance cash or securities for
any purpose (including but not limited to securities settlements,
foreign exchange contracts and assumed settlement) or in the event
that State Street or its nominee shall incur or be assessed any taxes,
charges, expenses, assessments, claims or liabilities in connection
with the performance of this Agreement, except such as may arise from
its or its nominee's own negligent action, negligent failure to act or
willful misconduct, any property at any time held for the account of
the applicable Portfolio shall be security therefor and should Fund
fail to repay State Street promptly, State Street shall be entitled to
utilize available cash and to dispose of such Portfolio's assets to
the extent necessary to obtain reimbursement.
8) Any error, omission, inaccuracy or other deficiency in any Portfolio's
accounts and records or other information provided to State Street by
or on behalf of a Portfolio, or the failure of Fund to provide, or
provide in a timely manner, any accounts, records, or information
needed by State Street to perform its duties hereunder.
SECTION 13 TERM AND TERMINATION. This Agreement shall become effective as of its
execution, shall continue in full force and effect until terminated as
hereinafter provided, may be amended at any time by mutual agreement of the
parties hereto and may be terminated by either party by an instrument in writing
delivered or mailed, postage prepaid to the other party, such termination to
take effect not sooner than sixty (60) days after the date of such delivery or
mailing; provided, that Fund on behalf of one or more of the Portfolios may at
any time by action of its Board (1) substitute another bank or trust company for
State Street by giving notice as described above to State Street, or (2)
immediately terminate this Agreement in the event of the appointment of a
conservator or receiver for State Street by the Comptroller of the Currency or
upon the happening of a like event at the direction of an appropriate regulatory
agency or court of competent jurisdiction. Upon termination hereof:
1) Fund on behalf of each applicable Portfolio shall pay to State Street
such compensation as may be due as of the date of such termination and
shall likewise reimburse State Street for its costs, expenses and
disbursements, and designate a successor custodian by Proper
Instruction.
2) Upon payment of all sums due to it from Fund, State Street shall
deliver to the successor custodian at the office of State Street, duly
endorsed and in the form for transfer, all securities of each
applicable Portfolio then held by it hereunder and shall transfer to
an account of the successor custodian all of the securities of each
such Portfolio held in a Securities System.
In the event that no successor custodian has been designated on or before the
date when such termination shall become effective, then State Street shall have
the right to deliver to a bank or trust company, which is a "bank" as defined in
the 1940 Act, doing business in Boston, Massachusetts, or New York, New York, of
its own selection, having an aggregate capital, surplus, and undivided profits,
as shown by its last published report, of not less than $25,000,000, all
securities, funds and other properties held by State Street on behalf of each
applicable Portfolio and all instruments held by State Street relative thereto
and all other property held by it hereunder on behalf of each applicable
Portfolio, and to transfer to an account of such successor custodian all of the
securities of each such Portfolio held in any Securities System. Thereafter,
such bank or trust company shall be the successor of State Street hereunder.
In the event that accounts, records, securities, funds and other properties
remain in the possession of State Street after the date of termination hereof
owing to failure of Fund to designate a successor or otherwise, State Street
shall be entitled to fair compensation for its services during such period as
State Street retains possession of such accounts, records, securities, funds and
other properties and the provisions hereof relating to the duties and
obligations of State Street shall remain in full force and effect.
SECTION 14 GENERAL
SECTION 14.1 INTERPRETIVE AND ADDITIONAL PROVISIONS. In connection with the
operation hereof, State Street and Fund on behalf of each of the Portfolios, may
from time to time agree on such provisions interpretive of or in addition to the
provisions hereof as may in their joint opinion be consistent with the general
tenor of this Agreement. Any such interpretive or additional provisions shall be
in a writing signed by both parties and shall be annexed hereto, provided that
no such interpretive or additional provisions shall contravene any applicable
federal or state regulations or any provision of the governing documents. No
interpretive or additional provisions made as provided in the preceding sentence
shall be deemed to be an amendment of this Agreement.
SECTION 14.2 ADDITIONAL PORTFOLIOS. In the event that Fund establishes one
or more additional series with respect to which it desires to have State Street
render services as custodian under the terms hereof, it shall so notify State
Street in writing, and if State Street agrees to provide such services, such
series shall become a Portfolio hereunder.
SECTION 14.3 MASSACHUSETTS LAW TO APPLY. This Agreement shall be construed
and the provisions thereof interpreted under and in accordance with laws of The
Commonwealth of Massachusetts.
SECTION 14.4 PRIOR AGREEMENTS. This Agreement supersedes and terminates, as
of the date hereof, all prior agreements between Fund on behalf of each of the
Portfolios and State Street relating to the custody of Fund's assets.
SECTION 14.5 NOTICES. Any notice, instruction or other instrument required
to be given hereunder may be delivered in person to the offices of the parties
as set forth herein during normal business hours or delivered prepaid registered
mail or by telex, cable or telecopy to the parties at the following addresses or
such other addresses as may be notified by any party from time to time.
To Fund: To State Street:
*[FUND NAME] STATE STREET BANK AND TRUST COMPANY
*[address] 000 Xxxxxxxxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Attention: [contact] Attention: Vice President, Custody
Telephone: * Telephone: 000-000-0000
Telecopy: * Telecopy: 000-000-0000
Such notice, instruction or other instrument shall be deemed to have been served
in the case of a registered letter at the expiration of five business days after
posting, in the case of cable twenty-four hours after dispatch and, in the case
of telex, immediately on dispatch and if delivered outside normal business hours
it shall be deemed to have been received at the next time after delivery when
normal business hours commence and in the case of cable, telex or telecopy on
the business day after the receipt thereof. Evidence that the notice was
properly addressed, stamped and put into the post shall be conclusive evidence
of posting.
SECTION 14.6 REPRODUCTION OF DOCUMENTS. This Agreement and all schedules,
addenda, exhibits, attachments and amendments hereto may be reproduced by any
photographic, photostatic, microfilm, micro-card, miniature photographic or
other similar process. The parties hereto all/each agree that any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding, whether or not the original is in
existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
SECTION 14.7 REMOTE ACCESS SERVICES ADDENDUM. State Street and Fund agree
to be bound by the terms of the Remote Access Services Addendum attached hereto.
SECTION 14.8 ASSIGNMENT. Except as otherwise set forth herein, this
Agreement may not be assigned by either party without the written consent of the
other.
SECTION 14.9 COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original, and all such
counterparts taken together shall constitute but one and the same Agreement.
SECTION 14.10 SEVERABILITY. If any provision in this Agreement is
determined to be invalid, illegal, in conflict with any law or otherwise
unenforceable, the remaining provisions hereof will be considered severable and
will not be affected thereby, and every remaining provision hereof will remain
in full force and effect and will remain enforceable to the fullest extent
permitted by applicable law.
SECTION 14.11 SHAREHOLDER COMMUNICATIONS ELECTION. SEC Rule 14b-2 requires
banks which hold securities for the account of customers to respond to requests
by issuers of securities for the names, addresses and holdings of beneficial
owners of securities of that issuer held by the bank unless the beneficial owner
has expressly objected to disclosure of this information. In order to comply
with the rule, State Street needs Fund to indicate whether it authorizes State
Street to provide Fund's name, address, and share position to requesting
companies whose securities Fund owns. If Fund tells Xxxxx Xxxxxx "xx", Xxxxx
Xxxxxx will not provide this information to requesting companies. If Fund tells
State Street "yes" or does not check either "yes" or "no" below, State Street is
required by the rule to treat Fund as consenting to disclosure of this
information for all securities owned by Fund or any funds or accounts
established by Fund. For Fund's protection, the Rule prohibits the requesting
company from using Fund's name and address for any purpose other than corporate
communications. Please indicate below whether Fund consents or objects by
checking one of the alternatives below.
YES [ ] State Street is authorized to release Fund's name, address, and
share positions.
NO [X] State Street is not authorized to release Fund's name, address, and
share positions.
IN WITNESS WHEREOF, each of the parties has caused this instrument to
be executed in its name and behalf by its duly authorized representative
effective as of the day and year first written above.
*[FUND NAME] FUND SIGNATURE ATTESTED TO BY:
By: _________________________ By: ____________________
Name: _______________________ Name: ____________________
Title: ______________________ Title: *[secretary/ass't secretary]
---------------------------
STATE STREET BANK AND TRUST COMPANY SIGNATURE ATTESTED TO BY:
By: _________________________ By: ____________________
Name: _______________________ Name: ____________________
Title: ______________________ Title: ____________________
REMOTE ACCESS SERVICES ADDENDUM
To Custody Agreement by and between
State Street Bank and Trust Company and Gold Bank Funds dated ________
State Street has developed proprietary accounting and other systems, and has
acquired licenses for other such systems, which it utilizes in conjunction
with the services we provide to you (the "Systems"). In this regard, we
maintain certain information in databases under our control and ownership
that we make available on a remote basis to our customers (the "Remote
Access Services").
The Services. This addendum shall govern use of all Systems that State
Street may from time to time agree to provide you, the Customer, and your
designated investment advisors, consultants or other third parties authorized by
State Street who agree to abide by the terms of this Addendum ("Authorized
Designees") in order to provide Remote Access Services for the purpose of
obtaining and analyzing reports and information.
Security Procedures. You agree to comply, and to cause your Authorized
Designees to comply, with remote access operating standards and procedures and
with user identification or other password control requirements and other
security procedures as may be issued from time to time by State Street for use
of the Systems and access to the Remote Access Services. You agree to advise
State Street immediately in the event that you learn or have reason to believe
that any person to whom you have given access to the Systems or the Remote
Access Services has violated or intends to violate the terms of this Addendum
and you will cooperate with State Street in seeking injunctive or other
equitable relief. You agree to discontinue use of the Systems and Remote Access
Services, if requested, for any security reasons cited by State Street.
Fees. Fees and charges (if any) for the use of the Systems and the Remote
Access Services and related payment terms shall be as set forth in the fee
schedule in effect from time to time between the parties (the "Fee Schedule").
You shall be responsible for any tariffs, duties or taxes imposed or levied by
any government or governmental agency by reason of the transactions contemplated
by this Agreement, including, without limitation, federal, state and local
taxes, use, value added and personal property taxes (other than income,
franchise or similar taxes which may be imposed or assessed against State
Street). Any claimed exemption from such tariffs, duties or taxes shall be
supported by proper documentary evidence delivered to State Street.
Proprietary Information/Injunctive Relief. The Systems and Remote Access
Services and the databases, computer programs, screen formats, report formats,
interactive design techniques, formulae, processes, systems, software, know-how,
algorithms, programs, training aids, printed materials, methods, books, records,
files, documentation and other information made available to you by State Street
as part of the Remote Access Services and through the use of the Systems and all
copyrights, patents, trade secrets and other proprietary rights of State Street
and its relevant licensors related thereto are the exclusive, valuable and
confidential property of State Street and its relevant licensors, as applicable
(the "Proprietary Information"). You agree on behalf of yourself and your
Authorized Designees to keep the Proprietary Information confidential and to
limit access to your employees and Authorized Designees (under a similar duty of
confidentiality) who require access to the Systems for the purposes intended.
The foregoing shall not apply to Proprietary Information in the public domain or
required by law to be made public.
You agree to use the Remote Access Services only in connection with the
proper purposes of this Addendum. You will not, and will cause your employees
and Authorized Designees not to, (i) permit any third party to use the Systems
or the Remote Access Services, (ii) sell, rent, license or otherwise use the
Systems or the Remote Access Services in the operation of a service bureau or
for any purpose other than as expressly authorized under this Addendum, (iii)
use the Systems or the Remote Access Services for any fund, trust or other
investment vehicle without the prior written consent of State Street, or (iv)
allow or cause any information transmitted from State Street's databases,
including data from third party sources, available through use of the Systems or
the Remote Access Services, to be redistributed or retransmitted for other than
use for or on behalf of yourself, as our Customer.
You agree that neither you nor your Authorized Designees will modify the
Systems in any way, enhance or otherwise create derivative works based upon the
Systems, nor will you or your Authorized Designees reverse engineer, decompile
or otherwise attempt to secure the source code for all or any part of the
Systems.
You acknowledge that the disclosure of any Proprietary Information, or of any
information which at law or equity ought to remain confidential, will
immediately give rise to continuing irreparable injury inadequately
compensable in damages at law, and that State Street and its licensor, if
applicable, shall be entitled to obtain immediate injunctive relief against
the breach or threatened breach of any of the foregoing undertakings, in
addition to any other legal remedies which may be available.
Limited Warranties. State Street represents and warrants that it has the
right to grant access to the Systems and to provide the Remote Access Services
contemplated herein. Because of the nature of computer information technology,
including but not limited to the use of the Internet, and the necessity of
relying upon third-party sources, and data and pricing information obtained from
third parties, the Systems and Remote Access Services are provided "AS IS", and
you and your Authorized Designees shall be solely responsible for the investment
decisions, results obtained, regulatory reports and statements produced using
the Remote Access Services. State Street and its relevant licensors will not be
liable to you or your Authorized Designees for any direct or indirect, special,
incidental, punitive or consequential damages arising out of or in any way
connected with the Systems or the Remote Access Services, nor shall either party
be responsible for delays or nonperformance under this Addendum arising out of
any cause or event beyond such party's control.
EXCEPT AS EXPRESSLY SET FORTH IN THIS ADDENDUM, STATE STREET FOR
ITSELF AND ITS RELEVANT LICENSORS EXPRESSLY DISCLAIMS ANY AND ALL
WARRANTIES CONCERNING THE SYSTEM AND THE SERVICES TO BE RENDERED
HEREUNDER, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT
LIMITATION ANY WARRANTY OF MERCHANTIBILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
Infringement. State Street will defend or, at our option, settle any claim
or action brought against you to the extent that it is based upon an assertion
that access to any proprietary System developed and owned by State Street or use
of the Remote Access Services through any such proprietary System by you under
this Addendum constitutes direct infringement of any United States patent or
copyright or misappropriation of a trade secret, provided that you notify State
Street promptly in writing of any such claim or proceeding and cooperate with
State Street in the defense of such claim or proceeding. Should any such
proprietary System or the Remote Access Services accessed thereby or any part
thereof become, or in State Street's opinion be likely to become, the subject of
a claim of infringement or the like under the patent or copyright or trade
secret laws of the United States, State Street shall have the right, at State
Street's sole option, to (i) procure for you the right to continue using such
System or Remote Access Services, (ii) replace or modify such System or Remote
Access Services so that the System or the Remote Access Services becomes
noninfringing, or (iii) terminate access to the Remote Access Services without
further obligation.
Termination. Either party may terminate access to the Remote Access
Services (i) for any reason by giving the other party at least one-hundred and
eighty (180) days' prior written notice in the case of notice of termination by
State Street to you or thirty (30) days' notice in the case of notice from you
to State Street of termination, or (ii) immediately for failure of the other
party to comply with any material term and condition of the Addendum by giving
the other party written notice of termination. In the event of termination, you
will return to State Street all Proprietary Information in your possession or in
the possession of your Authorized Designees. The foregoing provisions with
respect to confidentiality and infringement will survive termination for a
period of three (3) years.
Miscellaneous. Except as provided in the next sentence, this Addendum
constitutes our entire understanding with respect to access to the Systems and
the Remote Access Services. If any State Street custody, accounting or other
services agreement with you contains terms and conditions relating to computer
systems or data access, this Addendum shall constitute an amendment and
supplement to them, and in the event of any inconsistency the provisions
providing the greatest benefit to State Street shall control. This Addendum
cannot be modified or altered except in a writing duly executed by both of us
and shall be governed by and construed in accordance with the laws of the
Commonwealth of Massachusetts.
CONFIRMED AND AGREED:
Gold Bank Funds
----------------------
(Name of Customer)
By: _____________________________
Name: P. Xxxxxxx Xxxxx
Title: Chief Financial Officer
Date: _____________________________
Schedule A
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Schedule B
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Schedule C
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FTOP
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..\Price Source\Price Source matrix daily val.doc
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..\Data Access\Addendum.doc
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