Exhibit g
FORM OF CUSTODIAN SERVICES AGREEMENT
THIS AGREEMENT is made as of January 1, 2006 by and among EACH MANAGEMENT
INVESTMENT COMPANY registered under the 1940 Act (as defined below) IDENTIFIED
ON EXHIBIT A HERETO (each a "FUND" and collectively the "FUNDS") ON BEHALF OF
EACH OF ITS SERIES OR PORTFOLIOS IDENTIFIED ON EXHIBIT A (each a "PORTFOLIO" and
collectively the "PORTFOLIOS") (together with each other Fund and Portfolio
thereof made subject to this Agreement in accordance with Section 13(c) below,
and State Street Bank and Trust Company, a Massachusetts trust company (the
"CUSTODIAN").
WHEREAS, the Custodian is a bank having at least the minimum
qualifications required by Section 17(f)(1) of the 1940 Act to act as custodian
of the portfolio securities and other assets of investment companies; and
WHEREAS, each of the Funds on behalf of each of its Portfolios wishes to
retain the Custodian to act as custodian of its portfolio securities and other
assets, and the Custodian has indicated its willingness to so act;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter contained, and intending to be legally bound hereby, the parties
hereto agree as follows:
1. DEFINITIONS. As used in this Agreement:
"AUTHORIZED PERSON" means any of the persons duly authorized by the
applicable Fund Board to give Proper Instructions on behalf of the Fund or its
Portfolios as set forth in a certificate along with any limitations on such
Persons' scope of authority, such certificate to be executed by the Secretary or
Assistant Secretary of the applicable Fund, as the same may be revised from time
to time.
"BOARD" means the Board of Trustees or Directors of the applicable Fund.
"CEA" means the Commodities Exchange Act, as amended, and "CFTC" means the
Commodity Futures Trading Commission.
"DOMESTIC SECURITIES" means securities and other Financial Assets or
instruments and other investments of a Portfolio to be held in places within the
United States.
"FEDERAL SECURITIES LAWS" has the meaning set forth in Section (e)(1) of
Rule 38a-1 promulgated under the 1940 Act.
"FINANCIAL ASSETS" has the meaning set forth in the Uniform Commercial
Code.
"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 promulgated under the 1940 Act.
"FOREIGN SECURITIES" means securities and other Financial Assets of a
Portfolio for which the primary market is outside the United States.
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"FOREIGN SECURITIES DEPOSITORY" means a foreign securities clearing system
qualifying as an Eligible Securities Depository (as defined in Section (b)(1) of
Rule 17f-7 under the 0000 Xxx) that is listed on SCHEDULE B annexed hereto, as
amended from time to time pursuant to Section 4.5 hereof.
"FOREIGN SUB-CUSTODIAN" means a foreign banking institution qualifying as
an Eligible Foreign Custodian (as defined in Section (a)(1) of Rule 17f-5
promulgated under the 0000 Xxx) that has been selected by the Custodian and is
listed on SCHEDULE A annexed hereto, as amended from time to time pursuant to
Section 4.2 hereof.
"GOVERNING DOCUMENTS" means, with respect to each of the Portfolios, (i)
the declaration of trust or other constituting document of the Fund of which the
Portfolio is a series or portfolio, (ii) the currently effective prospectus
under the 1933 Act, (ii) the most recent statement of additional information,
and (iii) a certified copy of the Board approving the engagement of the
Custodian to act as custodian of the securities and other assets of its
Portfolio(s).
"NASD" means The National Association of Securities Dealers, Inc.
"1940 ACT" means the Investment Company Act of 1940, as amended.
"PROPER INSTRUCTIONS" means written instructions given by an Authorized
Person to the Custodian in such form and manner as the Custodian and the Funds
shall agree upon from time to time, including communications effected directly
between protected electro-mechanical or electronic devices, in each case in
accordance with such testing and authentication procedures as may be agreed to
from time to time by the Custodian and the Funds ("WRITTEN INSTRUCTIONS") and,
subject to any limitations in scope of authority, may be oral instructions
("ORAL INSTRUCTIONS") received by the Custodian in such manner and with such
testing and authentication procedures as the Custodian and the Funds shall agree
upon from time to time, from a person reasonably believed by the Custodian to be
an Authorized Person. It being understood that the Funds must follow security
procedures, including but not limited to, those selected by the Fund via the
form of Funds Transfer Addendum to this Agreement. "SPECIAL INSTRUCTIONS" shall
be Written Instructions accompanied by a copy of a resolution by the appropriate
Board authorizing the action, or, if so approved by the Board, Written
Instructions given by two Authorized Persons with authority to give such Special
Instructions.
"REPO CUSTODIAN" means a custodian appointed by a Fund for the purpose of
engaging in repurchase agreement transactions.
"SEC" means the Securities and Exchange Commission.
"SHARES" mean the shares of beneficial interest of any Portfolio.
"TRANSFER AGENT" means, with respect to each Fund, the transfer agent
appointed by its Board.
"UNDERLYING FUND SHARES" means uncertificated shares of registered
"investment companies" (as defined in Section 3(a)(1) of the 1940 Act), whether
in the same "group of investment companies" (as defined in Section
12(d)(1)(G)(ii)of the 0000 Xxx) or otherwise excluded from the restrictions
imposed by Section 12(d)(1), including pursuant to Section 12(d)(1)(E) and (F),
of the 1940 Act.
"UNDERLYING TRANSFER AGENT" means the transfer agent with respect to
Underlying Fund Shares.
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"U.S. CLEARING SYSTEM" means a clearing agency located in the United
States which is registered with the SEC as a clearing agency under Section 17A
of the 1934 Act or a book-entry system authorized by the U.S. Department of the
Treasury.
2. APPOINTMENT OF CUSTODIAN; GENERAL DUTIES.
2.1. APPOINTMENT.
(a) Each of the Funds hereby appoints the Custodian as the custodian of
the securities and other assets of each of its Portfolios, including Domestic
Securities and Foreign Securities.
(b) Each of the Funds has provided the Custodian with a copy of its
Governing Documents, and will provide the Custodian with a copy of amendments,
supplements and modifications thereof from time to time.
(c) The Custodian hereby accepts appointment as custodian of the
securities and assets of the Portfolios of the Funds and agrees to perform the
duties of such custodian in accordance with the provisions of this Agreement.
2.2. DELIVERY OF PORTFOLIO ASSETS.
(a) Each Fund, on behalf of its Portfolio(s), shall deliver to the
Custodian all securities and cash of such Portfolio(s), and from time to time
all payments of income, payments of principal or capital distributions received
by it with respect to Portfolio securities, and the cash consideration received
by it for such new or treasury Shares representing interests in its Portfolio(s)
as may be issued or sold from time to time.
(b) The Custodian shall not be responsible for any property of a Portfolio
which is not received by it or which is delivered out in accordance with Proper
Instructions, including without limitation Portfolio property (i) held by
brokers, private bankers or other entities on behalf of the Portfolio, (ii) held
by a sub-custodian authorized pursuant to Section 2.6(c) hereof, (iii) held by
entities which have advanced monies to or on behalf of the Portfolio and which
have received Portfolio property as security for such advance(s), or (iv)
delivered or otherwise removed from the custody of the Custodian in advance of
payment therefor pursuant to Section 2.5(vii) hereof. With respect to Underlying
Fund Shares, the holding of confirmation statements that identify the shares as
being recorded in the Custodian's name on behalf of the Portfolios will be
deemed custody for purposes hereof.
2.3. RELIANCE ON INSTRUCTIONS AND AUTHORITY.
(a) Concurrently with the execution of this Agreement, and from time to
time thereafter, as appropriate, each Fund shall deliver to the Custodian, duly
certified by such Fund's Treasurer or Secretary, a certificate setting forth:
(i) the names, titles, signatures and scope of authority of all Authorized
Persons who are authorized to give Proper Instructions or any other notice,
request, direction, instruction, certificate or instrument on behalf of the
Fund, (ii) the names, titles and signatures of those Authorized Persons, if any
who are authorized to give Special Instructions, and (iii) a copy of resolutions
of the Boards of the applicable Funds adopting the authorizations referred to in
the preceding clauses (i) and (ii). Such certificate maybe accepted and relied
upon by the Custodian as conclusive evidence of the facts set forth therein and
shall be considered to be in full force and effect until receipt by the
Custodian of a similar certificate to the contrary.
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(b) The Custodian will be protected in acting upon any Proper or Special
Instructions which are transmitted with testing or authentication pursuant to
terms and conditions agreed to by the Custodian and the Fund from time to time,
provided that such instructions comply with the other provisions of this
Agreement. The Funds shall promptly confirm any Oral Instructions with Written
Instructions, provided that failure of such confirming Written Instructions to
be received by the Custodian shall in no way invalidate the transactions or
enforceability of the transactions authorized by the Oral Instructions, and
provided further that if Written Instructions confirming Oral Instructions are
inconsistent with such Oral Instructions, any actions of the Custodian prior to
receipt of such Written Instructions shall not be invalidated and the only
obligation of the Custodian in connection therewith shall be to promptly notify
the Fund of such inconsistency.
(c) The Custodian may receive and accept a copy of a resolution certified
by the Secretary or an Assistant Secretary of any Fund as conclusive evidence
(i) of the authority of any person to act in accordance with such resolution or
(ii) of any determination or of any action by the applicable Board as described
in such resolution, and such resolution may be considered as in full force and
effect until receipt by the Custodian of written notice to the contrary.
2.4. BANK ACCOUNTS. The Custodian shall open and maintain a separate bank
account or accounts in the United States in the name of each Portfolio of each
Fund, subject only to draft or order by the Custodian acting pursuant to the
terms of this Agreement, 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 1940 Act. Funds
held by the Custodian for a Portfolio may be deposited by it to its credit as
Custodian in the banking department of the Custodian 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 the Custodian in its capacity as
Custodian and shall be withdrawable by the Custodian only in that capacity.
2.5. PAYMENT OF FUND MONEYS. Upon receipt of Proper Instructions on behalf
of the applicable Portfolio, which may be continuing instructions when deemed
appropriate by the parties, the Custodian shall pay out monies of a Portfolio in
the following cases only:
(i) 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 the Custodian (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 the Custodian as its agent for this purpose) registered in the
name of the Portfolio or in the name of a nominee of the Custodian referred to
in Section 3.3 hereof or in proper form for transfer; (B) in the case of a
purchase effected through a U.S. Clearing System, in accordance with the
conditions set forth in Section 3.5 hereof; (C) in the case of a purchase of
Underlying Shares, in accordance with the conditions set forth in Section 3.7
hereof; (D) in the case of repurchase agreements entered into between the
applicable Fund on behalf of a Portfolio and a 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 the Custodian'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 the Custodian along
with written evidence of the agreement by the Custodian to repurchase such
securities from the portfolio; or (E) for transfer to a time deposit account of
the Fund in any bank; such transfer may be effected prior to
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receipt of a confirmation from a broker and/or the applicable bank pursuant to
Proper Instructions from the Fund as defined herein.
(ii) In connection with conversion, exchange or surrender of
securities owned by the Portfolio as set forth in Section 3.2(viii) hereof;
(iii) For the redemption or repurchase of Shares issued as set forth
in Section 5 hereof;
(iv) 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 the Fund whether or not such expenses are
to be in whole or part capitalized or treated as deferred expenses;
(v) For the payment of any dividends on Shares declared pursuant to
the Fund's Governing Documents;
(vi) For payment of the amount of dividends received in respect of
securities sold short;
(vii) Upon the purchase of domestic investments, including without
limitation repurchase agreement transactions involving delivery of Portfolio
monies to a Repo Custodian, in advance of delivery of the purchased securities,
in accordance with written Proper Instructions that set forth (A) the amount of
such payment and (B) the person(s) to whom such payment is made; and
(viii) For any other proper purpose, but only upon receipt of
Special Instructions from the Fund on behalf of the applicable Portfolio setting
forth (A) the amount of such payment and (B) the person(s) to whom such payment
is made.
2.6. APPOINTMENT OF AGENTS.
(a) The Custodian 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, as the
Custodian may from time to time direct; provided, however, that the appointment
of any agent shall not relieve the Custodian of its responsibilities or
liabilities hereunder. (The Underlying Transfer Agent shall not be deemed an
agent or subcustodian of the Custodian for purposes of this Section 2.6 or any
other provision of this Agreement.)
(b) Upon receipt of Proper Instructions, which shall include appropriate
certification as to authorization by the Board on behalf of the applicable
Portfolio(s), the Custodian shall on behalf of the applicable Portfolio(s) from
time to time employ one or more sub-custodians located in the United States,
including without limitation any Repo Custodian or other sub-custodian appointed
by a Fund for special purposes, provided that the Custodian shall have no more
or less responsibility or liability to any Fund on account of any actions or
omissions of any sub-custodian so employed than any such sub-custodian has to
the Custodian.
(c) The Custodian may employ as sub-custodian for each 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 Section 4
hereof.
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2.7. ACTIONS PERMITTED WITHOUT EXPRESS AUTHORITY. The Custodian may in its
discretion, without express authority from the applicable Fund on behalf of each
applicable Portfolio:
(i) Surrender securities in temporary form for securities in
definitive form;
(ii) Endorse for collection, in the name of the Portfolio, checks,
drafts and other negotiable instruments; and
(iii) 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 applicable Board.
2.8 RECORDS AND REPORTS.
(a) The Custodian shall, with respect to each Portfolio, create and
maintain all records relating to its activities and obligations under this
Agreement in such manner as will meet the obligations of each Fund under the
1940 Act, with particular attention to Section 31 thereof and Rules 3la-1 and
31a-2 thereunder.
(b) All such records shall be the property of the Fund and shall at all
times during the regular business hours of the Custodian be open for inspection
by duly authorized officers, employees or agents of such Fund and employees and
agents of the SEC.
(c) The Custodian shall promptly provide or otherwise make available to
the Funds on a daily or less frequent basis, such notifications, reports,
statements, summaries, schedule, balances and trial balances, rollforwards,
reconciliations and other information as may be mutually acceptable to the Funds
and the Custodian, which may be included on a schedule to this Agreement.
2.9. ACCOUNTANTS; COMPLIANCE MATTERS.
(a) The Custodian shall take all reasonable action, as a Fund with respect
to a Portfolio may from time to time request, to obtain from year to year
favorable opinions from the Fund's independent accountants with respect to the
Custodian's activities hereunder, in connection with the preparation of the
Fund's Form N-lA or Form N-2, as applicable, and Form N-SAR or other annual
reports to the SEC and with respect to any other requirements thereof.
(b) The Custodian shall provide the applicable Fund, on behalf of each of
the Portfolios at such times as such Fund may reasonably require, with reports
by independent public accountants and other third parties 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 a U.S. Clearing System or a Foreign Securities
Depository, relating to the services provided by the Custodian under this
Agreement; such reports shall be of sufficient scope and in sufficient detail,
as may reasonably be required by the 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.
(c) The Custodian further agrees to provide such information and
assistance from time to time as may be reasonably requested by any of the Funds
in connection with the Custodian's compliance procedures as applicable to the
Funds and the Funds' periodic compliance audits of the Custodian. Without
limiting the preceding sentence, the Custodian agrees to provide: (i), in
connection with the Funds' compliance programs pursuant to Rule 38a-1
promulgated under the 1940
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Act, such periodic reports, documentation and certifications as the any of the
Fund or their respective compliance officers may reasonably request, and
periodic notification of any Material Compliance Matter (as such term is defined
in Rule 38a-1 under the 0000 Xxx) that comes to the attention of the Custodian;
(ii) sub-certificates in connection with the certification requirements of the
Xxxxxxxx-Xxxxx Act of 2002 applicable to services for the Funds; and (iii) a
copy of each Type II SAS 70 audit report prepared by an independent third party
with respect to services hereunder.
2.10. ADVANCES BY THE CUSTODIAN. The Custodian may, in its sole
discretion, advance funds on behalf of any of the Portfolios to make any payment
permitted by this Agreement upon receipt of any proper authorization by the
applicable Fund required by this Agreement for such payments on behalf of the
Portfolio. Should such a payment or payments, with advanced funds, result in an
overdraft (due to insufficiencies of the Portfolio's account with the Custodian,
or for any other reason), any such overdraft or related indebtedness shall be
deemed for purposes of this Agreement a loan made by the Custodian to the Fund
for the account of the Portfolio payable on demand. Such overdraft shall bear
interest at the current rate charged by the Custodian for such loans unless the
Fund on behalf of the Portfolio shall provide the Custodian with compensating
balances. Each of the Funds agrees that the Custodian shall have a continuing
lien and security interest to the extent of any overdraft or indebtedness, in
and to any property at any time held by the Custodian for the benefit of the
applicable Portfolio or in which the applicable Portfolio has an interest and
which is then in the Custodian 's possession or control (or in the possession or
control of any third party acting on the Custodian's behalf). Each of the Funds
authorizes the Custodian, in the Custodian'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 applicable
Portfolio on the Custodian's books. In addition, the Custodian shall be entitled
to utilize available cash and to dispose of such Portfolio's Financial Assets
and other assets to the extent necessary to obtain reimbursement; provided,
however, the Custodian shall have provided the Fund three (3) days' notice with
respect thereto.
2.11. CONTINGENCY FACILITIES. In order to minimize the disruption of the
services to be provided under this Agreement or any exhibit, schedule or annex
hereto, the Custodian shall implement and maintain directly or through third
parties contingency facilities and procedures reasonably designed to provide for
periodic back-up of the computer files and data with respect to the Portfolios
and emergency use of electronic data processing equipment to provide services
under this Agreement. In the event of equipment failure, work stoppage,
governmental action, communication disruption or other impossibility of
performance beyond the Custodian's control, the Custodian shall, at no
additional expense to the Funds, take reasonable steps to minimize service
interruptions.
3. CUSTODY WITH RESPECT TO DOMESTIC SECURITIES
3.1. HOLDING DOMESTIC SECURITIES. The Custodian 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 owned by such
Portfolio other than (i) securities which are maintained pursuant to Section 3.5
in a U.S. Clearing System and (ii) Underlying Fund Shares owned by each Fund
which are maintained pursuant to Section 3.7 hereof in an account with the
Underlying Transfer Agent.
3.2 DELIVERY OF SECURITIES. The Custodian shall release and deliver
Domestic Securities owned by a Portfolio held by the Custodian, in a U.S.
Clearing System account of the Custodian or in an account at the Underlying
Transfer Agent, 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:
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(i) Upon sale of such securities for the account of the Portfolio
and receipt of payment therefor;
(ii) Upon the receipt of payment in connection with any repurchase
agreement related to such securities entered into by the Portfolio;
(iii) In the case of a sale effected through a U.S. Clearing System,
in accordance with the provisions of Section 3.5 hereof;
(iv) To the depository agent in connection with tender or other
similar offers for securities of the Portfolio;
(v) 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 the Custodian;
(vi) To the issuer thereof, or its agent, for transfer into the name
of the Portfolio or into the name of any nominee or nominees of the Custodian or
into the name or nominee name of any agent or any sub-custodian appointed
pursuant to Section 2.6; 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 the Custodian;
(vii) 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, the 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 Custodian's own negligence or willful
misconduct;
(viii) 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;
provided that, in any such case, the new securities and cash, if any, are to be
delivered to the Custodian;
(ix) 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 the Custodian;
(x) For delivery in connection with any loans of securities made by
the Portfolio (A) against receipt of collateral as agreed from time to time by
the Fund on behalf of the Portfolio, except that in connection with any loans
for which collateral is to be credited to the Custodian's account in the
book-entry system authorized by the U.S. Department of the Treasury, the
Custodian, in its capacity as custodian hereunder, will not be held liable or
responsible for the delivery of securities owned by the Portfolio prior to the
receipt of such collateral or (B) to the lending agent, or the lending agent's
custodian, in accordance with written Proper Instructions (which may not provide
for the receipt by the Custodian of collateral therefor) agreed upon from time
to time by the Custodian and the Fund;
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(xi) For delivery as security in connection with any borrowing by a
Fund on behalf of a Portfolio requiring a pledge of assets by the Fund on behalf
of such Portfolio;
(xii) For delivery in accordance with the provisions of any
agreement among the Fund on behalf of the Portfolio, the Custodian and a
broker-dealer registered under the 1934 Act and a member of the 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 Fund on behalf of a Portfolio;
(xiii) For delivery in accordance with the provisions of any
agreement among a Fund on behalf of the Portfolio, the Custodian, and a futures
commission merchant registered under the CEA, relating to compliance with the
rules of the CFTC and/or any contract market, or any similar organization or
organizations, regarding account deposits in connection with transactions by the
Fund on behalf of a Portfolio;
(xiv) Upon the sale or other delivery of such investments
(including, without limitation, to one or more sub-custodians authorized
pursuant to Section 2.6(b), as set forth in written Proper Instructions,
provided that such Proper Instructions shall set forth (x) the securities of the
Portfolio to be delivered and (y) the person(s) to whom delivery of such
securities shall be made;
(xv) Upon receipt of instructions from the Fund's 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 of the Fund related
to the Portfolio, in satisfaction of requests by holders of Shares for
repurchase or redemption;
(xvi) In the case of a sale processed through the Underlying
Transfer Agent for Underlying Fund Shares, in accordance with Section 3.7
hereof; and
(xvii) For any other proper purpose, but only upon receipt of
Special Instructions from the Fund on behalf of the applicable Portfolio
specifying (A) the securities of the Portfolio to be delivered and (B) the
person(s) to whom delivery of such securities shall be made.
3.3 REGISTRATION OF SECURITIES. Domestic Securities held by the Custodian
(other than bearer securities) shall be registered in the name of the Portfolio
or in the name of any nominee of a Fund on behalf of the Portfolio or of any
nominee of the Custodian which nominee shall be assigned exclusively to the
Portfolio, unless the Fund has authorized in writing the appointment of a
nominee to be used in common with affiliated registered management investment
companies, or in the name or nominee name of any agent or any sub-custodian
appointed pursuant to Section 2.6. All securities accepted by the Custodian on
behalf of the Portfolio under the terms of this Agreement shall be in "street
name" or other good delivery form. If, however, a Fund directs the Custodian to
maintain securities in "street name", the Custodian shall utilize its best
efforts only to timely collect income due the Fund on such securities and to
notify the Fund on a best efforts basis only of relevant corporate actions
including, without limitation, pendency of calls, maturities, tender or exchange
offers.
3.4 COLLECTION OF INCOME. Except with respect to Portfolio property
released and delivered pursuant to Section 3.2(xiv) or purchased pursuant to
Section 2.5(vii), and subject to the last sentence of Section 3.3, the Custodian
shall collect on a timely basis all income and other payments with respect to
registered Domestic Securities held hereunder to which each Portfolio shall be
entitled
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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 the Custodian or its agent thereof and shall credit such income, as
collected, to such Portfolio's custodian account. Without limiting the
generality of the foregoing, the Custodian 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 3.2 (x) shall be the responsibility of the applicable Fund. The
Custodian, in its capacity as custodian hereunder, will have no duty or
responsibility in connection therewith, other than to provide the Fund with such
information or data as may be necessary to assist the Fund in arranging for the
timely delivery to the Custodian of the income to which the Portfolio is
properly entitled.
3.5 DEPOSIT OF FUND ASSETS IN U.S. CLEARING SYSTEMS. The Custodian may
deposit and/or maintain securities or other Financial Assets owned by a
Portfolio in a U.S. Clearing System in compliance with the conditions of Rule
17f-4 under the 1940 Act, as amended from time to time.
3.6. SEGREGATED ACCOUNT. The Custodian shall upon receipt of Proper
Instructions on behalf of each applicable Portfolio, which may be continuing
instructions, 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 an account by the
Custodian pursuant to Section 3.5 hereof, (i) in accordance with the provisions
of any agreement among the Fund on behalf of the Portfolio, the Custodian and a
broker-dealer registered under the Exchange Act and a member of the NASD (or any
futures commission merchant registered under the CEA), 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, (ii) for purposes
of segregating cash or 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, (iii) 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 SEC, or interpretative opinion of the
staff of the SEC, relating to the maintenance of segregated accounts by
registered investment companies, and (iv) for any other purpose in accordance
with Proper Instructions.
3.7 DEPOSIT OF FUND ASSETS WITH THE UNDERLYING TRANSFER AGENT. Underlying
Fund Shares shall be deposited and/or maintained in an account or accounts
maintained with the Underlying Transfer Agent, provided that such securities are
maintained in an account or accounts on the books and records of the Underlying
Transfer Agent in the name of the Custodian as custodian for the Portfolio. The
records of the Custodian with respect to Underlying Fund Shares which are
maintained with the Underlying Transfer Agent shall identify by book-entry those
Underlying Fund Shares belonging to each Portfolio.
3.8. OWNERSHIP CERTIFICATES FOR TAX PURPOSES. The Custodian 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 held by it and in connection with
transfers of securities.
3.9. VOTING DOMESTIC SHARES. The Custodian shall, with respect to the
Domestic Securities held hereunder, 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
11
promptly deliver to the Fund such proxies, all proxy soliciting materials and
all notices relating to such securities.
3.10. COMMUNICATIONS RELATING TO PORTFOLIO SECURITIES.
(a) The Custodian shall transmit promptly to the applicable Fund for each
Portfolio all written information and notices received by the Custodian from
issuers with regard to the securities being held for the Portfolio and/or any
corporate action by such issuer affecting such securities (including without
limitation stock splits, stock dividends, reorganizations, pendency of calls and
maturities of domestic securities and expirations of rights in connection
therewith, notices of exercise of call and put options written by the Fund on
behalf of the Portfolio and the maturity of futures contracts purchased or sold
by the Fund on behalf of the Portfolio).
(b) With respect to tender or exchange offers, the Custodian shall
transmit promptly to the applicable Fund all written information received by the
Custodian 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 a Fund
desires to take action with respect to any tender offer, exchange offer or any
other similar transaction, the Fund shall notify the Custodian prior to the
deadline established by the Custodian in its reasonable discretion as will give
the Custodian (including any Foreign Sub-Custodian) sufficient time to take such
action, which deadline shall in no event be longer than three (3) business days.
The Custodian shall inform the Fund or its appointed investment adviser of
pertinent deadlines in each case.
4. CUSTODY WITH RESPECT TO FOREIGN SECURITIES
4.1. FOREIGN CUSTODY MANAGER.
(a) Each Fund, by resolution adopted by its Board, hereby delegates to the
Custodian, subject to Section (b) of Rule 17f-5 under the 1940 Act, the
responsibilities set forth in Sections 4.1 through 4.4 with respect to Foreign
Assets of the Portfolios held outside the United States, and the Custodian
hereby accepts such delegation as Foreign Custody Manager with respect to the
Portfolios.
(b) 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 to this
Agreement, which list of countries may be amended from time to time by any Fund
with the consent of the Foreign Custody Manager, which consent will not be
unreasonably withheld. SCHEDULE A further lists the Foreign Sub-Custodians
selected by the Foreign Custody Manager to maintain the assets of the
Portfolios.
(c) 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 each Fund, on behalf of the applicable
Portfolio(s), of the applicable account opening requirements for such country,
the Foreign Custody Manager shall be deemed to have been delegated by such
Fund's Board on behalf of such Portfolio(s) responsibility as Foreign Custody
Manager with respect to that country and to have accepted such delegation.
Execution of this Agreement by the Fund shall, to the extent any particular Fund
has or will have Foreign Assets, 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 the Custodian has previously placed or currently maintains
such Fund's Foreign Assets pursuant to the terms of the Agreement. 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
12
behalf of such Portfolio to the Custodian as Foreign Custody Manager for that
country shall be deemed to have been withdrawn and the Custodian shall
immediately cease to be the Foreign Custody Manager with respect to such
Portfolio with respect to that country.
(d) The Foreign Custody Manager may withdraw its acceptance of delegated
responsibilities with respect to a designated country upon at least 60 days (or
such longer period which the parties may agree) prior written notice to the
Fund.
4.2 FOREIGN SUB-CUSTODIANS.
(a) Subject to the provisions of this Section 4, the Foreign Custody
Manager may place and maintain the Foreign Assets in the care of a Foreign
Sub-Custodian 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 a Foreign Sub-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 Foreign Sub-Custodian, after
considering all factors relevant to the safekeeping of such assets, including,
without limitation the factors specified in Rule 17f-5(c)(1) under the 0000 Xxx.
(b) The Foreign Custody Manager shall determine that the contract
governing the foreign custody arrangements with each Foreign Sub-Custodian
selected by the Foreign Custody Manager will satisfy the requirements of Rule
17f-5(c)(2).
(c) In each case in which the Foreign Custody Manager maintains Foreign
Assets with a Foreign Sub-Custodian, the Foreign Custody Manager shall establish
a system to monitor (i) the appropriateness of maintaining the Foreign Assets
with such Foreign Sub-Custodian and (ii) the contract governing the custody
arrangements established by the Foreign Custody Manager with the Foreign
Sub-Custodian. In the event the Foreign Custody Manager determines that the
custody arrangements with any Foreign Sub-Custodian it has selected are no
longer appropriate, the Foreign Custody Manager shall notify the Board in
accordance with Section 4.3 hereunder.
(d) For purposes of this Section 4, the applicable Board shall be deemed
to have considered and determined, or in the event such Board shall have
delegated to the applicable Adviser such duty in accordance with Rule 17f-5,
such Adviser shall be deem to have considered and determined, to accept such
Country Risk as is incurred by placing and maintaining the Foreign Assets in
each country listed on SCHEDULE A (for which the Custodian is serving as Foreign
Custody Manager of the Portfolios). For these purposes, "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 Foreign
Securities Depositories operating in that 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.
4.3. REPORTING REQUIREMENTS. The Foreign Custody Manager shall report the
withdrawal of the Foreign Assets from any Foreign Sub-Custodian and the
placement of such Foreign Assets with another Foreign Sub-Custodian by providing
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
reasonably prompt written reports to the Board of any other material change in
the foreign custody arrangements of the Portfolios described in this Section 4
after the occurrence of the material change.
13
4.4. REPRESENTATIONS WITH RESPECT TO RULE 17f-5. The Foreign Custody
Manager represents to each Fund that it is a U.S. Bank as defined in Section
(a)(7) of Rule 17f-5 under the 1940 Act. Each Fund represents to the Custodian
that its Board has determined that it is reasonable for such Board to rely on
the Custodian to perform the responsibilities delegated pursuant to this
Agreement to the Custodian as the Foreign Custody Manager of the Portfolios.
4.5. FOREIGN SECURITIES DEPOSITORIES. The Custodian shall provide the Fund
with an analysis of the custody risks associated with maintaining assets with
the Foreign Securities Depositories set forth on SCHEDULE B hereto, in
accordance with Section (a)(1)(i)(A) of Rule 17f-7 under the 1940 Act. The
Custodian shall monitor such risks on a continuing basis, shall promptly notify
the Fund of any material change in such risks, in accordance with Section
(a)(1)(i)(B) of Rule 17f-7 and the Funds shall, as soon as reasonably
practicable and via Proper Instructions to the Custodian, withdraw the Fund's
assets from such Depository if such Depository no longer meets the requirements
of Rule 17f-7. SCHEDULE B shall be updated from time to time by the Custodian's
provision to the Fund of an updated SCHEDULE B at the end of the calendar
quarter in which an amendment to such schedule has occurred.
4.6. HOLDING FOREIGN SECURITIES.
(a) The Custodian shall identify on its books as belonging to the
Portfolios the Foreign Securities held by each Foreign Sub-Custodian or Foreign
Securities Depository. The Custodian 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 the Custodian for the benefit of its
customers, provided however, that (i) the records of the Custodian with respect
to Foreign Securities of the Portfolios which are maintained in such account
shall identify those securities as belonging to the Portfolios and (ii), to the
extent permitted and customary in the market in which the account is maintained,
the Custodian 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.
(B) Foreign securities shall be maintained in a Foreign Securities
Depository in a designated country through arrangements implemented by the
Custodian or a Foreign Sub-Custodian, as applicable, in such country.
4.7. TRANSACTIONS IN FOREIGN CUSTODY ACCOUNT.
(a) The Custodian or a Foreign Sub-Custodian shall release and deliver
Foreign Securities of the Portfolios held by the Custodian or such Foreign
Sub-Custodian, or in a Foreign Securities Depository account, only upon receipt
of Proper Instructions, which may be continuing instructions when deemed
appropriate by the parties, and only in the following cases:
(i) Upon the sale of such Foreign Securities for the Portfolio in
accordance with market practice for institutional customers in the country where
such Foreign Securities are held or traded, including, without limitation: (A)
delivery against expectation of receiving later payment, provided the Custodian
has advised the Fund or its duly appointed investment adviser of such practice
in accordance with Section 4.7A(b) below; or (B) in the case of a sale effected
through a Foreign Securities Depository, in accordance with the rules governing
the operation of the Foreign Securities Depository;
(ii) In connection with any repurchase agreement related to Foreign
Securities;
14
(iii) To the depository agent in connection with tender or other
similar offers for Foreign Securities of the Portfolios;
(iv) To the issuer thereof or its agent when such Foreign Securities
are called, redeemed, retired or otherwise become payable;
(v) To the issuer thereof, or its agent, for transfer into the name
of the Custodian (or the name of the respective Foreign Sub-Custodian or of any
nominee of the Custodian 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;
(vi) To brokers, clearing banks or other clearing agents for
examination or trade execution in accordance with market custom;
(vii) 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;
(viii) 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;
(ix) For delivery as security in connection with any borrowing by a
Fund on behalf of a Portfolio requiring a pledge of assets by the Fund on behalf
of such Portfolio;
(x) In connection with trading in options and futures contracts,
including delivery as original margin and variation margin;
(xi) Upon the sale or other delivery of such Foreign Securities
(including, without limitation, to one or more Repo Custodians or other
sub-custodians authorized pursuant to Section 2.6(b)) in advance of payment
therefor, provided that applicable Proper Instructions shall set forth (A) the
Foreign Securities to be delivered and (B) the person(s) to whom delivery shall
be made;
(xii) In connection with the lending of Foreign Securities; and
(xiii) For any other purpose, but only upon receipt of Special
Instructions specifying (A) the Foreign Securities to be delivered and (B) the
person(s) to whom delivery of such securities shall be made.
(b) Upon receipt of Proper Instructions, which may be standing
instructions when deemed appropriate by the parties, the Custodian shall pay
out, or direct the respective Foreign Sub-Custodian or the respective Foreign
Securities Depository to pay out, monies of a Portfolio in the following cases
only:
(i) Upon the purchase of Foreign Securities for the Portfolio in
accordance with market practices for institutional customers in the country
where such Foreign Securities are held or traded, unless otherwise directed by
Proper Instructions, by (A) 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 provided the Custodian has
advised the Fund or its duly appointed investment adviser of such practice in
accordance with Section 4.7A(b) below; or
15
(B) in the case of a purchase effected through a Foreign Securities Depository,
in accordance with the rules governing the operation of such Foreign Securities
Depository;
(ii) In connection with the conversion, exchange or surrender of
Foreign Securities of the Portfolio;
(iii) 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 under this Agreement, legal fees,
accounting fees, and other operating expenses;
(iv) For the purchase or sale of foreign exchange or foreign
exchange contracts for the Portfolio, including transactions executed with or
through the Custodian or its Foreign Sub-Custodians;
(v) In connection with trading in options and futures contracts,
including delivery as original margin and variation margin;
(vi) Upon the purchase of foreign investments including, without
limitation, repurchase agreement transactions involving delivery of Portfolio
monies to Repo Custodian(s), in advance of delivery of the purchased securities,
provided that applicable Proper Instructions shall set forth (A) the amount of
such payment and (B) the person(s) to whom payment shall be made;
(vii) For payment of part or all of the dividends received in
respect of securities sold short;
(viii) In connection with the borrowing or lending of Foreign
Securities; and
(ix) For any other proper purpose, but only upon receipt of Special
Instructions specifying (A) the amount of such payment and (B) the person(s) to
whom such payment is to be made.
4.7A. MARKET CONDITIONS.
(a) Except as more particularly set forth in Sections 4.7(a)(i) and
4.7(b)(i), 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.
(b) The Custodian shall provide to each Board the information with respect
to custody and settlement practices in countries in which the Custodian employs
a Foreign Sub-Custodian described on Schedule C hereto at the time or times set
forth on such Schedule. The Custodian may revise Schedule C from time to time,
provided that no such revision shall result in a Board being provided with
substantively less information than had been previously provided hereunder.
4.8. 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 the
Custodian or in the name of any Foreign Sub-Custodian or in the name of any
nominee of the foregoing, and the applicable 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. The Custodian or a Foreign Sub-Custodian
shall not be obligated to accept securities on
16
behalf of a Portfolio under the terms of this Agreement unless the form of such
securities and the manner in which they are delivered are in accordance with
reasonable market practice.
4.9. BANK ACCOUNTS. The Custodian shall identify on its books as belonging
to the applicable Fund cash (including cash denominated in foreign currencies)
deposited with the Custodian. Where the Custodian is unable to maintain, or
market practice does not facilitate the maintenance of, cash on the books of the
Custodian, 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 4.9 shall be subject only to draft or
order by the Custodian (or, if applicable, such Foreign Sub-Custodian) acting
pursuant to the terms of this Agreement to hold cash received by or from or for
the account of the Portfolio. Cash maintained on the books of the Custodian
(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.
4.10. COLLECTION OF INCOME. The Custodian 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, the Fund and the
Custodian shall consult as to such measures and as to the compensation and
expenses of the Custodian relating to such measures.
4.11. SHAREHOLDER VOTING RIGHTS. With respect to the Foreign Securities
held pursuant to this Section 4, the Custodian shall 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. Each 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 such Fund to exercise shareholder rights.
4.12. COMMUNICATIONS RELATING TO FOREIGN SECURITIES. The Custodian shall
transmit promptly to the applicable Fund written information with respect to
materials received by the Custodian via the Foreign Sub-Custodians from issuers
of the Foreign Securities being held for the account of the Portfolios
(including, without limitation, pendency of calls and maturities of foreign
securities and expirations of rights in connection therewith). With respect to
tender or exchange offers, the Custodian shall transmit promptly to the
applicable Fund written information so received by the Custodian 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 and shall promptly forward to
the Foreign Sub-Custodian or the issuer, as applicable, any instructions, forms
or other documents as the Custodian shall receive from the Fund in connection
therewith. All primary written communications to the Funds with respect to
Foreign Securities shall be in English. If a Fund desires to take action with
respect to any tender offer, exchange offer or any other similar transaction,
the Fund shall notify the Custodian prior to the deadline established by the
Custodian in its reasonable discretion as will give the Custodian (including any
Foreign Sub-Custodian) sufficient time to take such action. The Custodian shall
inform the Fund or its duly appointed investment adviser of pertinent deadlines
in each case.
4.13. LIABILITY IN RESPECT OF FOREIGN ASSETS.
(a) Each agreement pursuant to which the Custodian employs a Foreign
Sub-Custodian shall meet the requirements set forth in Rule 17f-5. At a Fund's
election, the Portfolios shall be entitled to be subrogated to the rights of the
Custodian with respect to any claims against a Foreign
17
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.
(b) The Custodian 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 in this Agreement and, regardless of whether assets are maintained in
the custody of a Foreign Sub-Custodian or a Foreign Securities Depository, the
Custodian 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.
(c) Subject to and to the extent of receipt by the Custodian of relevant
and necessary information with respect to the Funds and Portfolios that the
Custodian has requested, the Custodian shall perform the following services: (i)
file claims for exemptions, reductions in withholding taxes, or refunds of any
tax with respect to withheld foreign (non-U.S.) taxes in instances in which such
claims are appropriate; (ii) withhold appropriate amounts as required by U.S.
tax laws with respect to amounts received on behalf of nonresident aliens; and
(iii) provide to the Funds such information actually received by the Custodian
that could, in the Custodian's reasonable belief and sole discretion, assist any
of the Funds in their submission of any reports or returns with respect to
taxes, it being specifically understood and agreed that the Custodian shall not
thereby or otherwise be considered any Fund's tax advisor or tax counsel. Other
than the servicing responsibilities identified herein, the Custodian shall have
no responsibility or liability for any tax payment obligations now or hereafter
imposed on any Fund, the Portfolios or the Custodian 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 each Fund to notify the
Custodian of the obligations imposed on such 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 responsibilities of the Custodian with regard
to such tax law shall be to use reasonable efforts to effect the withholding of
local taxes and related charges with regard to market entitlement/payment in
accordance with local law and subject to local market practice or custom and to
assist the Fund with respect to any claim for exemption or refund under the tax
law of countries for which such Fund has provided such information. Except as
specifically provided in this Agreement or otherwise agreed to in writing by the
Custodian, the Custodian shall have no independent obligation to determine the
tax obligations now or hereafter imposed on any of the Funds by any taxing
authority or to obtain or provide information relating thereto, and shall have
no obligation or liability with respect to such tax obligations. Each of the
Funds agrees that the Custodian is authorized to deduct from any cash received
or credited to the account of a Portfolio any taxes or levies required by any
tax or other governmental authority having jurisdiction in respect of such
Portfolio's transactions, and that the Custodian is authorized to disclose any
information required by any such tax or other governmental authority in relation
to processing any claim for exemption from or reduction or refund of any taxes
relating to Portfolio transactions and holdings.
5. PAYMENTS FOR SALES OR REPURCHASES OR REDEMPTIONS OF SHARES.
(a) The Custodian shall receive from the distributor of 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 the applicable Fund. The Custodian will provide timely notification to
such Fund on behalf of each such Portfolio and the Transfer Agent of any receipt
by it of payments for Shares of such Portfolio.
(b) From such funds as may be available for the purpose, the Custodian
shall, upon receipt of instructions from the Transfer Agent, make funds
available for payment to holders of
18
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, the Custodian 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, the Custodian shall honor checks drawn on the Custodian by a holder of
Shares, which checks have been furnished by a Fund to the holder of Shares, when
presented to the Custodian in accordance with such procedures and controls as
are mutually agreed upon from time to time between such Fund and the Custodian.
6. COMPENSATION OF CUSTODIAN The Custodian shall be entitled to compensation
for its services and expenses as Custodian as set forth on EXHIBIT C annexed
hereto.
7. ADDITIONAL SERVICES. The Funds engage the Custodian to provide, and the
Custodian agrees to provide those additional services (if any) set forth in
EXHIBIT D annexed hereto.
8. STANDARD OF CARE; LIMITATION OF LIABILITY; INDEMNIFICATION
(a) In performing all responsibilities delegated to it under this
Agreement (including without limitation in regard to its capacity as Foreign
Custody Manager), the Custodian agrees to exercise reasonable care, prudence and
diligence and shall not be liable for any damages arising out of the Custodian's
performance of or failure to perform its duties under this Agreement except to
the extent that such damages are reasonably foreseeable and arise directly out
of the Custodian's willful misfeasance, bad faith, negligence or otherwise from
a breach of this Agreement.
(b) Without limiting the generality of the foregoing or of any other
provision of this Agreement, (i) the Custodian shall not be liable so long as
and to the extent that it is in the exercise of reasonable care, for any defect
in the title, validity or genuineness of any property or in the evidence of
title thereto received by it or delivered by it pursuant to this Agreement, (ii)
the Custodian shall not be liable for losses suffered by any of the Funds due to
factors beyond the Custodian's reasonable control (including acts of civil or
military authority, national emergencies, labor difficulties, fire, flood,
catastrophe, acts of God, insurrection, war, riots, terrorism, nationalization
or expropriation, currency restrictions, or failure of the mails,
transportation, communication or power supply), provided that the Custodian has
acted in accordance with the provisions of Section 2.11 above. Further, the
Custodian shall not be liable for the validity or invalidity or authority or
lack thereof of any Oral Instruction or Written Instruction delivered in
accordance with Section 2.3(b) hereof.
(c) The Custodian shall be entitled to receive at its own expense and act
upon advice of counsel on all matters, and shall not be liable for any action
taken or omitted in good faith pursuant to the advice of counsel for the
applicable Fund or (at the expense of the Custodian) such other counsel.
(d) The applicable Fund shall indemnify and hold harmless the Custodian
and its affiliates from all taxes, charges, assessments, claims and liabilities
(including, without limitation, liabilities arising under the Federal Securities
Laws and any state or foreign securities and blue sky laws, and amendments
thereto), and expenses, including without limitation reasonable attorneys' fees
and disbursements, arising directly from any action or omission to act which the
Custodian or its affiliate takes in accordance with the terms of this Agreement;
provided that the Custodian and its affiliates shall not be indemnified against
any liability (or any expenses incident to such liability) to the extent arising
out of the Custodian's or any of its affiliates' own willful misfeasance, bad
faith, negligence or breach of this Agreement.
(e) The Custodian shall indemnify and hold harmless the Funds from all
taxes, charges,
19
assessments, claims and liabilities arising directly from the Custodian's
failure to meet its obligations pursuant to this Agreement (including, without
limitation, liabilities arising under the Federal Securities Laws, and any state
and foreign securities and blue sky laws, and amendments thereto) and expenses,
including without limitation reasonable attorneys' fees and disbursements, to
the extent that such damages are reasonably foreseeable and arise directly out
of the Custodian's or any of its affiliates' own willful misfeasance, bad faith,
negligence or breach of this Agreement, provided that the Funds shall not be
indemnified against any liability (or any expenses incident to such liability)
to the extent arising out of any Fund's own willful misfeasance, bad faith,
negligence or breach of this Agreement. The Custodian agrees to provide the
Funds with summaries of its insurance for errors and omissions insurance and
fidelity bonds, and agrees to provide updated summaries annually or as requested
by the Funds.
(f) In order that the indemnification provisions contained in this Section
5 shall apply, upon the assertion of a claim for which either party may be
required to indemnify the other, the party seeking indemnification shall
promptly notify the other party of such assertion, and shall keep the other
party advised with respect to all developments concerning such claim. The party
who may be required to indemnify shall have the option to participate with the
party seeking indemnification in the defense of such claim. The party seeking
indemnification shall in no case confess any claim or make any compromise in any
case in which the other party may be required to indemnify it except with the
other party's prior written consent.
(h) The provisions of this Section 8 shall survive termination of this
Agreement.
9. DURATION AND TERMINATION.
(a) This Agreement shall be effective on the date first written above and
shall continue for a period of one (1) year.
(b) Notwithstanding the preceding clause (a) of this Section 9, the Funds
may terminate the services of the Custodian under this Agreement by providing
thirty (30) days written notice in the event that the Custodian (i) shall fail
in any material respect to perform its duties and obligations hereunder pursuant
to the applicable standard of care set forth herein, the Funds shall have given
written notice thereof, and such material failure shall not have been remedied
to the reasonable satisfaction of the Funds within thirty (30) days after such
written notice is received, or (ii) shall have ceased to be qualified as a
custodian under the 1940 Act, shall be indicted for a crime, shall commence any
bankruptcy or insolvency proceeding or have such a proceeding initiated against
it which shall not be dismissed within 60 days, or shall suffer any other
material adverse change in its condition, operations or professional reputation
that is determined by the Funds in their reasonable discretion to threaten the
continuing performance of services hereunder or the reputation of the Funds.
(c) Termination of this Agreement with respect to the coverage of any one
particular Fund or Portfolio shall in no way affect the rights and duties under
this Agreement with respect to any other Fund or Portfolio.
(d) Upon termination of the Agreement or termination of its coverage with
respect to any Fund or Portfolio, the applicable Funds shall pay to the
Custodian such compensation and reimbursement of costs as may have accrued to
the effective date of such termination (or with respect to the applicable Fund
with respect to a coverage termination).
(e) If a successor custodian for one or more Portfolios shall be appointed
by the applicable Board, the Custodian shall, upon termination and receipt of
Proper Instructions, deliver to
20
such successor custodian, 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 or at the Underlying Transfer Agent.
If no such successor custodian shall be appointed, the Custodian shall, in like
manner, upon receipt of Proper Instructions, transfer such securities, funds and
other properties in accordance with such resolution. In the event that no Proper
Instructions designating a successor custodian or alternative arrangements shall
have been delivered to the Custodian on or before the date when such termination
shall become effective, then the Custodian 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 $250,000,000, all securities, funds and
other properties held by the Custodian on behalf of each applicable Portfolio
and all instruments held by the Custodian relative thereto and all other
property held by it under this Agreement 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 or at the Underlying
Transfer Agent. Thereafter, such bank or trust company shall be the successor of
the Custodian under this Agreement. All expenses associated with the transfer of
custody hereunder upon termination hereof shall be borne by the respective Funds
(except as may be specifically agreed in writing by the parties in relation to
special arrangements.
(f) In the event that securities, funds and other properties remain in the
possession of the Custodian after the date of termination hereof owing to
failure of any Fund to provide Proper Instructions as aforesaid, the Custodian
shall be entitled to fair compensation for its services during such period as
the Custodian retains possession of such securities, funds and other properties
and the provisions of this Agreement relating to the duties and obligations of
the Custodian shall remain in full force and effect.
(g) Notwithstanding any provision of this Section 9 to the contrary, in
the event that this Agreement is terminated in its entirety, the parties agree
that this Agreement shall remain in full force and effect for such extended
period of time, not to exceed in any event one year, as the parties mutually
agree is necessary for the Custodian to deliver the books and records and any
other properties of the Funds held hereunder by the Custodian to a successor
custodian in an orderly manner.
(h) Any termination of services under this Agreement shall not affect the
rights and obligations of the parties under Sections 8 and 10 hereof.
10. CONFIDENTIALITY.
(a) The Custodian agrees to keep confidential, and to cause its employees
and agents to keep confidential, all records of the Funds and information
relating to the Funds, including without limitation information as to their
respective shareholders and their respective portfolio holdings, unless the
release of such records or information is made in connection with the services
provided under this Agreement, at the written direction of the applicable Fund
or otherwise consented to, in writing, by the respective Funds. The Fund agrees
that such consent shall not be unreasonably withheld where the Custodian may be
exposed to civil or criminal contempt proceedings or when required to divulge
such information or records to duly constituted authorities. The foregoing shall
not be applicable to any information that is publicly available when provided or
thereafter becomes publicly available, other than through a breach of this
Agreement, or that is independently derived by any party hereto without the use
of any information derived in connection with the services provided under this
Agreement. Notwithstanding the foregoing, the Custodian may aggregate Fund or
21
Portfolio data with similar data of other customers of the Custodian
("AGGREGATED DATA") and may use Aggregated Data for purposes of constructing
statistical models so long as such Aggregated Data represents such a
sufficiently large sample that no Fund or Portfolio data can be identified
either directly or by inference or implication.
(b) Notwithstanding any provision herein to the contrary, each party
hereto agrees that any Nonpublic Personal Information, as defined under Section
248.3(t) of Regulation S-P ("REGULATION S-P"), promulgated under the
Xxxxx-Xxxxx-Xxxxxx Act (the "GLB ACT"), disclosed or otherwise made accessible
by a party hereunder is for the specific purpose of permitting the other party
to perform its duties as set forth in this Agreement. Each party agrees that,
with respect to such information, it will comply with Regulation S-P and the GLB
Act and that it will not disclose any Nonpublic Personal Information received in
connection with this Agreement to any other party, except to the extend as
necessary to carry out the services set forth in this Agreement or as otherwise
permitted by Regulation S-P or the GLB Act.
(c) Without limiting the generality of the preceding clause (a), the
Custodian acknowledges and agrees that the Funds are prohibited by law from
making selective public disclosure of information regarding portfolio holdings,
that disclosure of any and all such information to the Custodian hereunder is
made strictly under the conditions of confidentiality set forth in this Section
10 and solely for the purposes of the performance of custodial services
hereunder, that any misuse of such information (including without limitation any
disclosure to others by the Custodian or any of its employees or agents, or any
trading on the basis of such information by anyone in receipt of such
information) may constitute a criminal offense of trading on or tipping of
material inside information regarding publicly traded securities, that access to
any and all such information regarding portfolio holdings of the Funds should be
restricted to those persons needing such information in the course of the
performance of duties hereunder, and that the Custodian shall apprise all such
persons having access of the obligation hereunder and under applicable law to
prevent unauthorized disclosure of such confidential information.
(d) The Custodian acknowledges and agrees that any breach or threatened
breach of this Section 10 would cause not only financial damage, but irreparable
harm to the Funds; for which money damages will not provide an adequate remedy.
Accordingly, in the event of a breach or threatened breach of this Section 10,
the Funds shall (in addition to all other rights and remedies they may have
pursuant to this Agreement, including without limitation Section 8(f), and at
law and in equity) be entitled to an injunction, without the necessity of
posting any bond or surety, to restrain disclosure or misuse, in whole or in
part, of any Confidential Information.
11. NOTICES.
(a) All notices and other communications, excluding Written Instructions,
shall be in writing or by confirming telegram, cable, telex or facsimile sending
device. If notice is sent by confirming telegram, cable, telex or facsimile
sending device, it shall be deemed to have been given immediately. If notice is
sent by first-class mail, it shall be deemed to have been given three days after
it has been mailed. If notice is sent by messenger, it shall be deemed to have
been given on the day it is delivered. Notices shall be addressed,
if to the Custodian, at:
if to any of the Funds, at:
22
or at such other address as shall have been provided by like notice to the
sender of any such notice or other communication by the other party.
13. FUNDS AS PARTIES; LIMITATION ON FUND LIABILITIES.
(a) The Custodian acknowledges and agrees that the obligations assumed by
each of the Funds hereunder shall be limited in all cases to the assets of the
Fund and that the Custodian may not seek satisfaction of any such obligation
from the officers, agents, employees, trustees, directors or shareholders of the
Fund. With respect to each Fund organized as a Massachusetts business trust or
other business trust (or Portfolio thereof) where the trustees, officers,
employees or shareholders of such business trust (or Portfolio thereof) may be
held personally liable for its obligations, the Custodian acknowledges and
agrees that, to the extent such trustees or officers are regarded as entering
into this Agreement, they do so only as trustees or officers and not
individually and that the obligations of this Agreement are not binding upon any
such trustee, officer, employee or shareholder individually, but are binding
only upon the assets and property of said Fund (or Portfolio thereof). The
Custodian hereby agrees that such trustees, officers, employees or shareholders
shall not be personally liable under this Agreement and that the Custodian shall
look solely to the property of the Fund (or Portfolio thereof) for the
performance of the Agreement or payment of any claim under the Agreement.
(b) This Agreement is an agreement entered into between the Custodian and
each of the Funds with respect to each Portfolio. With respect to any obligation
of the Fund on behalf of any Portfolio arising out of this Agreement, the
Custodian shall look for payment or satisfaction of such obligation solely to
the assets of the Portfolio to which such obligation relates with the same
effect as if the Custodian had separately contracted with the Fund by separate
written instrument with respect to each Portfolio.
(c) Additional management investment companies (each a "NEW FUND") may
from time to time become parties as Funds to this Agreement by (A) delivery to
the Custodian of (i) an instrument of adherence agreeing to become bound by and
party to this Agreement executed by any such New Fund on behalf of each of its
series or portfolios, (ii) an amendment and restatement of EXHIBIT A setting
forth the appropriate information as to such New Fund and its series or
portfolios, and (iii) copies of the New Fund's Governing Documents and (B) the
Custodian's receipt of the foregoing documents, whereupon the Custodian, subject
to satisfactory completion of its customary due diligence, may agree in writing
to the addition of such New Fund and its series or portfolios, which agreement
shall not be unreasonably withheld, it being understood that the Custodian shall
not be deemed to be unreasonable in the event that (i) the Custodian's ability
to provide services hereunder to the New Fund is otherwise restricted by
regulatory requirements or its internal risk profiles or policies, which may
include consideration of material changes to the risks contemplated by the
provision of the services under this Agreement to a New Fund or (ii) the
Custodian does not generally offer custodial services to institutional clients
regarding the particular type of fund or assets.
(d) Additional portfolios or series of existing management investment
companies that are already party to this Agreement (each a "NEW PORTFOLIO") may
from time to time be added to this list of series or portfolios serviced under
this Agreement by (A) delivery to the Custodian of (i) an
23
instrument of adherence agreeing to become bound by and party to this Agreement
executed by the existing party Fund on behalf its New Portfolio, (ii) an
amendment and restatement of EXHIBIT A setting forth the appropriate information
as to such New Portfolio, and (iii) copies of the New Portfolio's Governing
Documents, if applicable, and (B) the Custodian's receipt of the foregoing
documents, whereupon the Custodian, subject to satisfactory completion of its
customary due diligence, may agree in writing to the addition of such New
Portfolio, which agreement shall not be unreasonably withheld, it being
understood that the Custodian shall not be deemed to be unreasonable in the
event that (i) the Custodian's ability to provide services hereunder to the New
Portfolio is otherwise restricted by regulatory requirements or its internal
risk profiles or policies, which may include consideration of material changes
to the risks contemplated by the provision of services under this Agreement to a
New Portfolio or (ii) the Custodian does not generally offer custodial services
to institutional clients regarding the particular type of fund or assets.
14. MISCELLANEOUS.
(a) This Agreement, or any term thereof, may be changed or waived only by
written amendment, signed by the party against whom enforcement of such change
or waiver is sought.
(b) This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and permitted assigns. This
Agreement may not be assigned by either party, nor may the duties of either
party hereunder be delegated, without the prior written consent of the other
party.
(c) This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument. This Agreement and all exhibits, appendices,
attachments and amendments hereto may be reproduced by any photographic,
photostatic, microfilm, micro-card, miniature photographic or other similar
process. The parties hereto 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.
(d) Each party agrees to perform such further acts and execute such
further documents as are necessary to effectuate the purposes hereof.
(e) This Agreement embodies the entire agreement and understanding between
the parties and supersedes all prior agreements and understandings relating to
the subject matter hereof.
(f) The captions in this Agreement are included for convenience of
reference only and in no way define or delimit any of the provisions hereof or
otherwise affect their construction or effect.
(g) This Agreement shall be deemed to be a contract made in the
Commonwealth of Massachusetts and governed by the laws of the Commonwealth of
Massachusetts, without regard to principles of conflicts of law.
(h) If any provision of this Agreement shall be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of this Agreement
shall not be affected thereby.
24
(i) 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, the Custodian needs each Fund to indicate whether it authorizes the
Custodian to provide such Fund's name, address, and share position to requesting
companies whose securities the Fund owns. If a Fund tells the Custodian "no,"
the Custodian will not provide this information to requesting companies. If a
Fund tells the Custodian "yes" or does not check either "yes" or "no" below, the
Custodian is required by the rule to treat the Fund as consenting to disclosure
of this information for all securities owned by the Fund or any funds or
accounts established by the Fund. For a Fund's protection, the Rule prohibits
the requesting company from using the Fund's name and address for any purpose
other than corporate communications. Please indicate below whether the Fund
consents or objects by checking one of the alternatives below.
YES [ ] The Custodian is authorized to release the Fund's name, address, and
share positions.
NO [X] The Custodian is not authorized to release the 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 and its
seal to be hereunder affixed as of the date first above-written.
EACH MANAGEMENT INVESTMENT
COMPANY IDENTIFIED ON EXHIBIT A
HERETO
By: _________________________________
Name:
Title:
STATE STREET BANK AND TRUST
COMPANY
By: _________________________________
Name:
Title:
exhibit h(4)
SERVICE XXXX LICENSE AGREEMENT
THIS SERVICE XXXX LICENSE AGREEMENT (this "AGREEMENT"), dated as of
December 1, 2005 (the "EFFECTIVE DATE"), by and among Citigroup Inc., a
corporation incorporated in the State of Delaware ("CITIGROUP"), and each
investment company signing this Agreement (on behalf of itself and each series
thereof, as applicable) (each liquidity fund investment company and series, and
trust separately, a "LICENSEE").
WITNESSETH:
WHEREAS, Xxxx Xxxxx, Inc., a corporation incorporated in the State
of Maryland ("XXXX XXXXX") and Citigroup have entered into a Transaction
Agreement, dated as of June 23, 2005 and amended as of the Effective Date (as
amended, the "TRANSACTION AGREEMENT"), under which Citigroup is selling to Xxxx
Xxxxx substantially all of its global asset management business currently
operated as Citigroup Asset Management and Xxxx Xxxxx is selling the PC/CM
Business, including the private client business of Xxxx Xxxxx to Citigroup;
WHEREAS, pursuant to the Amended and Restated Global Distribution
Agreement, between Xxxx Xxxxx and Citigroup, dated as of October 3, 2005 (as
amended, the "DISTRIBUTION AGREEMENT"), Citigroup agreed to distribute through
certain Affiliates of Citigroup the Licensees (including any class, series or
shares of such Licensees) set forth on SCHEDULE A;
WHEREAS, effective as the Closing of the Transaction, an Affiliate
of Xxxx Xxxxx that is wholly-owned by Xxxx Xxxxx serves as the investment
adviser for each Licensee ("ADVISER");
WHEREAS, Citigroup owns all right, title and interest in the Citi
Marks (as defined below), and each Licensee desires a license to use the Citi
Marks and Citigroup is willing to grant such license to each Licensee, on the
terms and subject to the conditions contained herein;
WHEREAS, Citigroup prior to the Effective Date had granted
permission to Licensee to use the Citi Xxxx(s) designated under Licensee's name
in Schedule A (such names and marks that contain or otherwise reference CITI,
the "CITI MARKS"), and Licensee desires a license to continue to use such Citi
Xxxx(s) for a period of time and Citigroup is willing to grant such license to
each Licensee, on the terms and subject to the conditions contained herein;
WHEREAS, pursuant to that certain Service Xxxx License Agreement of
even date hereof between Citigroup and Xxxx Xxxxx, Citigroup is granting Xxxx
Xxxxx a license to use the Citi Marks solely in connection with the investment
advisory services provided by Xxxx Xxxxx or Affiliates thereof to each Licensee
as well as the advertising, marketing, promotion, and distribution of each
Licensee (the "XXXX XXXXX LICENSE"); and
WHEREAS, this Agreement serves as an individual license agreement
between Citigroup and each Licensee.
1
NOW, THEREFORE, in consideration of the mutual promises and
covenants set forth herein and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the Parties hereby agree
as follows:
ARTICLE 1
DEFINITIONS
1.01 DEFINED TERMS. Initially capitalized terms shall have the
meaning respectively ascribed to them herein, including the following terms:
"ADVISER" has the meaning set forth in the Recitals.
"AFFILIATE" means, with respect to any specified Person, any other
Person that at the time of determination, directly or indirectly, through one or
more intermediaries, Controls, is Controlled by, or is under common Control
with, such specified Person.
"AGREEMENT" has the meaning set forth in the first paragraph of this
Agreement.
"BUSINESS DAY" means any day other than a Saturday, Sunday, or a
holiday on which commercial banks in the State of New York are closed.
"CITI MARKS" has the meaning set forth in the Recitals.
"CITIGROUP" has the meaning set forth in the first paragraph of this
Agreement.
"CONTROL" (including its correlative meanings "Controlled by" and
"under common Control with") means the possession, directly or indirectly, of
power to direct or cause the direction of the management or policies (whether
through ownership of securities or partnership or other ownership interest, by
contract or otherwise).
"DISTRIBUTION AGREEMENT" has the meaning set forth in the Recitals.
"EFFECTIVE DATE" has the meaning set forth in the first paragraph of
this Agreement.
"GOVERNMENTAL AUTHORITY" means any federal, national, supranational,
state, provincial, local, or similar government, governmental, regulatory or
administrative authority, agency or commission or any court, tribunal, or
judicial or arbitral body, including the Securities and Exchange Commission and
any SRO within or outside the United States.
"INDEMNIFIED PARTY" has the meaning set forth in Article 9 of this
Agreement.
"INDEMNIFYING PARTY" has the meaning set forth in Article 9 of this
Agreement.
"LAW" means, with respect to any Person, any domestic or foreign
federal or state statute, law, ordinance, rule, administrative code,
administrative interpretation, regulation, order, consent, writ, injunction,
directive, judgment, decree, policy, ordinance, decision, guideline or other
requirement of (or agreement with) any Governmental Authority (including any
2
memorandum of understanding or similar arrangement with any Governmental
Authority), in each case binding on that Person or its property or assets.
"XXXX XXXXX" shall have the meaning set forth in the Recitals.
"XXXX XXXXX LICENSE" shall have the meaning set forth in the
Recitals.
"LICENSE" has the meaning set forth in Section 2.01 of this
Agreement.
"LICENSEE" has the meaning set forth in the first paragraph of this
Agreement.
"NOTICE" has the meaning set forth in Section 10.01 of this
Agreement.
"PERSON" means any individual, corporation, business trust,
partnership, association, limited liability company, unincorporated organization
or similar organization, or any Governmental Authority.
"SRO" means the NASD, the National Futures Association, each
national securities exchange in the United States and each other board or body,
whether United States or foreign, that is charged with the supervision or
regulation of brokers, dealers, commodity pool operators, commodity trading
advisers, futures commission merchants, securities underwriting or trading,
stock exchanges, commodities exchanges, insurance companies or agents,
investment companies or investment advisers.
"TERM" has the meaning set forth in Section 7.01 of this Agreement.
"THIRD PARTY CLAIM" has the meaning set forth in Section 9.01 of
this Agreement.
"TRADEMARKS" means, collectively, whether registered or
unregistered, trademarks, service marks, certification marks, trade dress,
logos, trade names, slogans, designs, URL addresses, internet domain names, and
any similar indicia of source or origin, including the goodwill of the business
symbolized thereby or associated therewith, all statutory and common-law rights
thereto, and all rights therein provided by international treaties and
conventions.
"TRANSACTION AGREEMENT" has the meaning set forth in the Recitals.
1.02 OTHER DEFINITIONAL PROVISIONS. Capitalized terms not otherwise
defined herein have the meaning set forth in the Transaction Agreement. As used
in this Agreement, the words "herein", "hereof", and "hereunder" and other words
of similar import refer to this Agreement as a whole, including the Schedules
hereto, as the same may from time to time be amended or supplemented and not to
any particular subdivision contained in this Agreement. The word "including"
when used herein is not intended to be exclusive, or to limit the generality of
the preceding words, and means "including, without limitation". References
herein to an Article, Section, subsection, clause, or Schedule shall refer to
the appropriate article, section, subsection, clause, or schedule of this
Agreement, unless expressly stated otherwise.
3
ARTICLE 2
LICENSE TO LICENSEE OF THE CITI MARKS
2.01 GRANT OF LICENSE. During the Term, and subject to the terms and
conditions of this Agreement and applicable Law, Citigroup hereby grants to
Licensee a non-exclusive, non-transferable (except as otherwise permitted in
Section 10.10), worldwide, fully paid-up and royalty-free, and
non-sublicenseable right and license to use the Citi Marks solely as part of the
name of Licensee as set forth in SCHEDULE A (the "LICENSE").
ARTICLE 3
OWNERSHIP OF THE CITI MARKS
3.01 OWNERSHIP OF CITI MARKS. Licensee acknowledges that as between
Citigroup, on the one hand, and Licensee, on the other, Citigroup is the owner
of the Citi Marks and the goodwill attached thereto. Licensee covenants and
agrees not to challenge the validity, enforceability or Citigroup's or its
Affiliates' ownership of the Citi Marks in any jurisdiction. Licensee shall not
acquire any ownership rights in the Citi Marks. Nothing herein shall be deemed,
intended, or implied to constitute a sale or assignment of the Citi Marks to
Licensee. Licensee agrees that all goodwill from its use of the Citi Marks under
this Agreement shall inure solely to the benefit of Citigroup, and this
Agreement does not confer on Licensee any goodwill or ownership interest in the
Citi Marks.
3.02 NOTICES WITH RESPECT TO CITI MARKS. Licensee acknowledges and
agrees that it shall not create or distribute any materials (whether in written,
electronic, or other form) bearing the Citi Marks.
3.03 AVOIDANCE OF ADVERSE ACTIONS BY LICENSEE. Licensee shall not:
(i) take any action that would disparage or diminish the value or reputation of
the Citi Marks; (ii) either directly or indirectly apply for the registration or
renewal of registration of the Citi Marks or any variation thereon, or any
Trademark which contains or is confusingly similar to the Citi Marks or their
transliteration in any language; (iii) subject to Section 7.02(d) use the Citi
Marks in any jurisdiction after such time that Licensee knows that such use in
such jurisdiction infringes or is credibly alleged to infringe the Trademark
rights or other proprietary rights of another Person (PROVIDED, HOWEVER, that
Citigroup may agree to permit Licensee to continue to use the Citi Marks in such
jurisdiction if Citigroup determines that there are reasonable defenses to such
claim of infringement); or (iv) without Citigroup's prior written consent, which
may in Citigroup's sole good faith discretion be withheld (and Citigroup will
provide Licensee with a written explanation for its disapproval at the time of
such disapproval), combine the Citi Marks with any other Trademark, any prefix
or suffix, or any other modifying word or term, other than as expressly provided
in SCHEDULE A.
3.04 RECORDINGS. In the event Citigroup reasonably deems recordation
necessary, Licensee shall, to the extent it has the power and authority to do
so, reasonably cooperate with Citigroup at Citigroup's sole expense, for
Licensee's reasonable out-of-pocket costs, in connection with the recording of
this Agreement with the appropriate Governmental Authorities and, if necessary,
in the renewal of such recordation, including the prompt execution of all
documents necessary in connection with such recording. To the extent it has the
power and
4
authority to do so, Licensee shall provide documents and other information to
Citigroup as reasonably necessary to accomplish such recordation, including by
submitting a revised version of this Agreement in a form necessary, but without
change of substance (except where such change is necessary for purposes of
recordation) hereof, for recordation. At Citigroup's expense, for Licensee's
reasonable out-of-pocket costs, and to the extent it has the power and authority
to do so, Licensee shall cooperate to effect a cancellation or termination of
any recordation of this Agreement with the appropriate Governmental Authorities
upon termination or expiration of this Agreement, but in no event, later than
twenty (20) days following the termination or expiration of this Agreement.
Licensee hereby grants to Citigroup an irrevocable power of attorney coupled
with an interest solely to effect such cancellation.
3.05 DOMAIN NAMES. Licensee represents that it does not own any
Internet domain names containing Citi Marks.
ARTICLE 4
QUALITY CONTROL
4.01 QUALITY OF LICENSEE'S SERVICES. Licensee shall not provide
services under the Citi Marks.
4.02 COMPLIANCE WITH LAW AND GOVERNMENT APPROVALS. Licensee shall,
beginning on the Effective Date, comply with all applicable Laws in connection
with its use of the Citi Marks, its conduct of business under the Citi Marks,
and the performance of any other obligations under this Agreement, to the extent
such non-compliance could reasonably be expected to have an adverse effect on
Citigroup or any of the Citi Marks or the goodwill or reputation associated
therewith. Licensee shall be responsible for the expense of obtaining and
maintaining all licenses, permits, and regulatory approvals which are required
by any Governmental Authority with respect to Licensee's business, if any, and
of complying with any requirements of such Governmental Authorities, including
providing all appropriate notices to investors, if applicable. Without
limitation to the foregoing, in the event that applicable Law prohibits or
restricts or requires expanded use of the Citi Marks hereunder, the License
shall automatically be deemed to be so restricted or expanded, and Licensee
shall comply with such applicable Law, provided that in the event of the
expansion of a License pursuant to this Section 4.02, to the extent it has the
power and authority to do so, Licensee shall (i) immediately notify Citigroup in
writing of such requirement, (ii) use all commercially reasonable efforts, as
requested by Citigroup, to avoid any expansion of such use and still comply with
any applicable Law, and (iii) otherwise cooperate with Citigroup's reasonable
requests to avoid such expansion without violating any applicable Law.
4.03 THIRD PARTY DISTRIBUTORS. Licensee agrees that any third party
distributors of the Funds will be subject to Citigroup's prior written approval,
which approval may be withheld by Citigroup only if Citigroup reasonably
believes such third party distributor would adversely affect Citigroup or any of
the Citi Marks or the goodwill or reputation associated therewith, PROVIDED THAT
the third party distributors of the Funds immediately prior to the Effective
Date shall be deemed approved hereunder.
5
ARTICLE 5
INTELLECTUAL PROPERTY PROTECTION
5.01 PROTECTION OF THE CITI MARKS. To the extent it has the power
and authority to do so and is permitted by applicable Law, Licensee agrees, as
Citigroup may reasonably request and at Citigroup's expense, for Licensee's
reasonable out-of-pocket costs, to cooperate with Citigroup or its Affiliates in
the prosecution and elimination of any unauthorized use or infringement of the
Citi Marks. Notwithstanding any other provision of this Agreement, Citigroup
shall have the sole right to control the prosecution and defense of any claim
alleging infringement or other violation of the Citi Marks, PROVIDED THAT to the
extent resolution of any such claim is reasonably likely to have an adverse
impact on Licensee, Citigroup shall consult with Licensee or Xxxx Xxxxx on
behalf of Licensee in connection therewith.
ARTICLE 6
RECORDS; AUDITS AND INSPECTIONS
6.01 MAINTENANCE OF RECORDS. In accordance with federal securities
laws and other applicable Law, Licensee shall maintain accurate books, records,
and accounts, including financial and accounting records, relating to Licensee's
business (such books, records, and accounts, collectively, the "COVERED BOOKS
AND RECORDS").
6.02 RIGHT OF INSPECTION AND AUDIT. On a quarterly basis, and to the
extent permissible under applicable Law and except for the disclosure of
Licensee's holdings at any particular date prior to such disclosure to the
public, Citigroup and its Affiliates, and their officers, employees, and agents,
and regulatory officials with regulatory authority over Citigroup, may perform
reviews, including onsite visits and audits of the Covered Books and Records,
solely to the extent reasonably necessary to ensure that Licensee is not in
material breach of this Agreement. In connection therewith, Licensee shall
provide to such Person, during normal business hours and with reasonable advance
Notice, access to such Covered Books and Records as they or Citigroup may
reasonably request for such purpose.
ARTICLE 7
TERM AND TERMINATION
7.01 TERM. This Agreement (and the rights granted to Licensee
hereunder) shall become effective on the Effective Date and shall endure with
respect to any Licensee until the earlier of the expiration or earlier
termination of the Xxxx Xxxxx License or the expiration or earlier termination
of any applicable rights with respect to such Licensee under the Xxxx Xxxxx
License (the "TERM").
7.02 TERMINATION OF LICENSE. Upon the expiration or earlier
termination of this Agreement (or of a Licensee's rights to use the Citi Marks
hereunder, in which case the following provisions of this Section 7.02 shall
apply only with respect to such Licensee):
(a) Subject to Section 7.02(d), Licensee's License to use the
Citi Marks immediately and automatically shall terminate and all rights
in the Citi Marks granted to Licensee shall revert to Citigroup, and at
Citigroup's request, Licensee shall assign any
6
goodwill accrued to Licensee under the Citi Marks, if any, to Citigroup
(the parties acknowledge that no such assignment is necessary or required
with respect to use of the Citi Marks within the United States);
(b) Licensee immediately shall destroy all materials in its
custody and control, if any, utilizing the Citi Marks and provide
confirmation of same to Citigroup, except that Licensee shall be permitted
to keep copies of such materials as may be required by applicable Law and
such additional number of copies as it reasonably deems appropriate for
internal recordkeeping purposes;
(c) Licensee immediately shall take all steps necessary, and
fully cooperate with Citigroup and/or its Affiliates at Citigroup's
request and sole expense, for Licensee's reasonable out of pocket costs,
to cancel any recordation of this Agreement with any Governmental
Authorities;
(d) Notwithstanding the foregoing clauses (a) - (c), Licensee
shall not be required to cease a particular use of the Citi Marks in the
event that such continued use of such xxxx is required by any applicable
Law, PROVIDED THAT Licensee (i) immediately notifies Citigroup in writing
of such requirement, (ii) uses all commercially reasonable efforts to
cease such use and still comply with any applicable Law, and (iii)
cooperates with Citigroup with respect to such efforts to cease use
without violating any applicable Law. For purposes of clarification, the
foregoing shall not relieve Licensee from its obligation to cure a breach
of this Agreement; and
(e) For purposes of clarity, and except as otherwise
prohibited under applicable Law, nothing in this Agreement shall preclude
any good faith uses of the Citi Marks by Licensee that are (i) not in
commerce, (ii) nominative references to Citigroup in a manner that could
generally be made by Licensee with respect to third-party financial
services companies (I.E., not in a manner that states a present or past
affiliation between the Parties or their respective Affiliates (unless and
to the extent required by Law or specifically permitted pursuant to
another agreement between the Parties)), or (iii) factual references to
the Citi Marks in historical and tax records.
7.03 CHANGE OF COMPANY NAME FOLLOWING TERMINATION. Upon expiration
or earlier termination of this Agreement (or of a Licensee's rights to use the
Citi Marks hereunder, in which case the following provisions of this Section
7.03 shall apply only with respect to such Licensee), Licensee shall take all
actions necessary or appropriate to the extent within its control, and cooperate
with Citigroup and its Affiliates, to (x) de-register Licensee's corporate name
that contains Citi Marks, (y) cancel any recordation of this Agreement with
Governmental Authorities, and (z) change its name to a name that does not
include the Citi Marks, or any variation, derivation or colorable imitation
thereof.
7.04 SURVIVAL. Notwithstanding any provisions of this Article
stating otherwise, Sections 3.01, 3.03, 3.04, 7.02, 7.03, and 7.04, and Articles
8, 9, and 10 of this Agreement shall survive any expiration or termination of
this Agreement.
7
ARTICLE 8
DISCLAIMER
8.01 DISCLAIMER OF REPRESENTATIONS AND WARRANTIES. CITIGROUP HEREBY
SPECIFICALLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR
IMPLIED (INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, VALIDITY, REGISTRABILITY, OR NON-INFRINGEMENT
AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE),
REGARDING THE CITI MARKS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING,
LICENSEE ACKNOWLEDGES THAT THE LICENSE GRANTED IN THIS AGREEMENT AND THE CITI
MARKS, ARE PROVIDED "AS IS."
8.02 EXCLUSION OF LIABILITY. EXCEPT FOR THE PARTIES' INDEMNIFICATION
OBLIGATIONS PROVIDED FOR HEREIN AND EXCEPT IN THE CASE OF A PARTY'S WILLFUL
MISCONDUCT, GROSS NEGLIGENCE OR BAD FAITH BREACH HEREUNDER, NEITHER PARTY NOR
ANY OF ITS AFFILIATES WILL BE LIABLE (WHETHER IN CONTRACT, WARRANTY, TORT
(INCLUDING NEGLIGENCE) OR OTHERWISE) TO THE OTHER PARTY OR ANY OTHER PERSON FOR
DAMAGES FOR ANY INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR
RELATING TO THIS AGREEMENT.
ARTICLE 9
INDEMNIFICATION
9.01 INDEMNIFICATION BY CITIGROUP. Citigroup (as the "INDEMNIFYING
PARTY") hereby agrees to indemnify and hold harmless Licensee, and its
respective directors, officers, employees and agents (collectively, as the
"INDEMNIFIED PARTY") with respect to any Losses incurred, arising from, or based
in any respect on any action, suit, proceeding, claim, demand, investigation or
assessment made or brought by a third party that is unaffiliated with a Party
hereto (each, a "THIRD PARTY CLAIM") of Trademark infringement or dilution, to
the extent arising from the use by Licensee of the Citi Marks as expressly
permitted under this Agreement.
9.02 CLAIMS.
(a) Upon receipt by an Indemnified Party of Notice of a Third
Party Claim with respect to a matter for which such Indemnified Party is
indemnified under this Article 10 which has, or is reasonably expected to,
give rise to a claim for Losses, the Indemnified Party shall as soon as
practicable notify the Indemnifying Party, in writing, indicating the
nature of such Third Party Claim and the basis therefor; PROVIDED,
HOWEVER, that any delay or failure by the Indemnified Party to give Notice
to the Indemnifying Party shall relieve the Indemnifying Party of its
obligations hereunder only to the extent, if at all, that it is prejudiced
by reason of such delay or failure. Such written Notice shall (i) describe
such Third Party Claim in reasonable detail including the sections of this
Agreement which form the basis for such claim; PROVIDED that the failure
to identify a particular section in such Notice shall not preclude the
Indemnified Party
8
from subsequently identifying such section as a basis for such claim, (ii)
attach copies of all substantive written evidence thereof and (iii) if
possible, set forth an estimate of the amount of Losses that have been or
may be sustained by an Indemnified Party; PROVIDED that such estimate
shall not be binding or used in place of the actual amount of
Losses subject to this Article IX.
(b) Except for actions involving alleged infringement or
dilution arising from the use of the Citi Marks, the Indemnifying Party shall
have five (5) Business Days after receipt of Notice to elect, at its option, to
assume and control the defense of, at its own expense and by its own counsel,
any such Third Party Claim and shall be entitled to assert any and all defenses
available to the Indemnified Party to the fullest extent permitted under
applicable Law.
(c) If the Indemnifying Party shall undertake to compromise
any such Third Party Claim, it shall promptly, but in any event within ten (10)
Business Days of the receipt of Notice from the Indemnified Party of such Third
Party Claim, notify the Indemnified Party of its intention to do so, and the
Indemnified Party agrees to cooperate fully with the Indemnifying Party and its
counsel in the compromise of any such Third Party Claim; PROVIDED, HOWEVER, that
the Indemnifying Party shall not settle, compromise or discharge, or admit any
liability with respect to, any such Third Party Claim without the prior written
consent of the Indemnified Party (which consent will not be unreasonably
withheld or delayed) unless the relief consists solely of money Losses to be
paid by the Indemnifying Party and includes a provision whereby the plaintiff or
claimant in the matter releases the Purchaser Indemnified Parties or Seller
Indemnified Parties, as applicable, from all liability with respect thereto.
(d) Notwithstanding an election to assume the defense of any
action or proceeding, and except for actions involving alleged infringement or
dilution arising from the use of the Citi Marks, the Indemnified Party shall
have the right to employ separate counsel and to participate in the defense of
such action or proceeding, and the Indemnifying Party shall bear the reasonable
fees, costs and expenses of such separate counsel if the (i) Indemnified Party
shall have determined in good faith that an actual or potential conflict of
interest makes representation by the same counsel or the counsel selected by the
Indemnifying Party inappropriate or (ii) Indemnifying Party shall have
authorized the Indemnified Party to employ separate counsel at the Indemnifying
Party's expense.
(e) The Indemnified Party and Indemnifying Party and their
counsel shall cooperate in the defense of any Third Party Claim subject to this
Article 10, keep such Persons informed of all developments relating to any such
Third Party Claims and provide copies of all relevant correspondence and
documentation relating thereto. All costs and expenses incurred in connection
with the Indemnified Party's cooperation shall be borne by the Indemnifying
Party. In any event, the Indemnified Party shall have the right at its own
expense to participate in the defense of such asserted liability.
(f) Except for actions involving alleged infringement or
dilution arising from the use of the Citi Marks, if the Indemnifying Party
receiving such Notice of a Third Party Claim does not elect to defend such Third
Party Claim pursuant to Section 9.02(a), or does not defend such Third Party
Claim in good faith, the Indemnified Party shall have the right, in addition to
any other right or remedy it may have hereunder, at the Indemnifying Party's
9
expense, to defend such Third Party Claim; PROVIDED, HOWEVER, that the
Indemnified Party shall not settle, compromise or discharge, or admit any
liability with respect to, any such Third Party Claim without the written
consent of the Indemnifying Party (which consent will not be unreasonably
withheld or delayed).
(g) Notwithstanding any other provision of this Section 9.02,
in the event a Third Party Claim under this Article 9 is asserted alleging
infringement or dilution arising from the use of the Citi Marks, (i) Citigroup
shall, and shall have the sole right to, defend or otherwise resolve such Third
Party Claim, and (ii) subject to 7.02(d), Licensee shall at Citigroup's request
promptly phase out use of such challenged Citi Xxxx(s) in the relevant
jurisdictions(s) if in Citigroup's reasonable judgment there exists colorable
grounds for such third party claim.
9.03 EXCLUSIONS. Notwithstanding anything contained in this
Agreement to the contrary, in no event shall any Indemnifying Party be obligated
under this Article 10 to indemnify an Indemnified Party otherwise entitled to
indemnity hereunder in respect of any Losses to the extent that such Losses
result from (i) the Indemnified Party's willful misconduct or negligence, (ii)
the Indemnified Party's failure to perform its obligations under this Agreement,
or (iii) the Indemnified Party's violation of Law.
ARTICLE 10
MISCELLANEOUS
10.01 NOTICES. All notices, requests, demands and other
communications required or permitted to be given or made under this Agreement or
in connection with this Agreement ("NOTICE") will be deemed to have been duly
given when delivered by hand, courier or overnight delivery service or, if
mailed, two (2) Business Days after deposit in the mail and sent certified or
registered mail, return receipt requested and with first-class postage prepaid,
or in the case of facsimile Notice, when sent and transmission is confirmed,
and, regardless of method, addressed to the Party at its address or facsimile
number set out below (or at such other address or facsimile number as the Party
furnishes the other Party in accordance with this Section):
If to Citigroup:
Citigroup
000 Xxxxx Xxx.
00xx Xxxxx
Xxx Xxxx, XX 00000
XXX
Attention: Xxxx Xxxxx, Esq.
Assistant Secretary and Chief Trademark Counsel
Facsimile: 0-000-000-0000
If to Licensee:
Xxxxxxxx Xxxxxx
000 Xxxxx Xxxxxxxx Xxxxx, 0xx floor
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Xxxxxxxx, XX 00000
Facsimile: (000) 000-0000
10.02 RELATIONSHIP BETWEEN THE PARTIES. Nothing contained in this
Agreement will be deemed to be construed by the Parties or any third party as
creating a partnership, an agency relationship or joint venture between the
Parties or any of their respective employees, representatives or agents.
10.03 AMENDMENT AND WAIVERS. No amendment to this Agreement will be
effective unless it is in writing and signed by each Party. Any failure of a
Party to comply with any obligation, covenant, agreement or condition contained
in this Agreement may be waived by the Party entitled to the benefits of the
provision only by a written instrument duly executed and delivered by the Party
granting the waiver, but the waiver or failure to insist upon strict compliance
with such obligation, covenant, agreement or condition will not operate as a
waiver of, or estoppel with respect to, any subsequent or other failure of
compliance.
10.04 SEVERABILITY. In the event that any of the provisions in this
Agreement is determined invalid, void or unenforceable, the provision will be
deemed deleted from this Agreement and the remaining provisions of this
Agreement will continue in full force and effect.
10.05 GOVERNING LAW. The provisions of this Agreement are to be
governed by and construed in accordance with the Laws of the State of New York
applicable to the agreements made and to be performed entirely within the State,
without regard to the conflicts of laws principles of the State.
10.06 JURISDICTION
THE PARTIES IRREVOCABLY SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF
ANY NEW YORK STATE OR FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE
CITY OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT AND THE PARTIES IRREVOCABLY AGREE THAT ALL CLAIMS IN RESPECT OF SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR
FEDERAL COURT. THE PARTIES IRREVOCABLY WAIVE, TO THE FULLEST EXTENT THAT THEY
MAY LEGALLY DO SO, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF
SUCH ACTION OR PROCEEDING. THE PARTIES AGREE THAT A FINAL JUDGMENT IN ANY SUCH
ACTION OR PROCEEDING WILL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
10.07 EQUITABLE RELIEF. Licensee acknowledges and agrees that
violation of the provisions of this Agreement may cause Citigroup irreparable
injury not compensable by money damages for which Citigroup may not have an
adequate remedy at law, and if Citigroup institutes an action or proceeding to
enforce the provisions of this Agreement and seeks injunctive or other equitable
relief as may be necessary to enjoin, prevent or curtail any breach thereof,
threatened or actual, then Citigroup shall not be required to prove irreparable
injury, and shall be entitled to such relief without the posting of any bond or
other security.
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10.08 REMEDIES CUMULATIVE. All remedies in this Agreement are
cumulative, in addition to and not in lieu of any other remedies available to a
Party at Law or in equity, subject only to the express limitations on
liabilities and remedies set forth herein.
10.09 ENTIRE AGREEMENT. This Agreement (including all Schedules
hereto), embody the entire agreement of the Parties hereto with respect to the
subject matter hereof and supersede all prior agreements with respect thereto.
The Parties intend that this Agreement shall constitute the complete and
exclusive statement of its terms and that no extrinsic evidence whatsoever may
be introduced in any judicial proceeding involving this Agreement.
10.10 NO ASSIGNMENT. No Party may assign or transfer all or part of
its rights and/or obligations under this Agreement without the prior written
consent of the other Party and any purported assignment without such consent
will be void; PROVIDED, that such prior written consent will not be required in
the event that (i) Licensee or Citigroup sells, transfers, divests or otherwise
disposes of all or substantially all of its business to one or more of its
Controlled Affiliates, or (ii) Citigroup assigns one or more of the Citi Marks
to one or more of its Controlled Affiliates. This Agreement shall be binding on
the successors and permitted assigns of each Party hereto.
10.11 PARTIES. All references herein to "LICENSEE" are to each of
the entities signing this Agreement (and each series thereof), individually, as
if this Agreement were between Citigroup and such individual entity or series.
Any reference in this Agreement to the "PARTIES" or "PARTY" shall mean Citigroup
and such individual Licensee.
10.12 NO THIRD-PARTY BENEFICIARIES. Except as expressly provided
herein, no third party is intended, or shall be deemed, to be a beneficiary of
any provision of this Agreement.
10.13 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
10.14 FURTHER ASSURANCES AND COOPERATION. Each Party agrees to
execute and deliver such other documents and to take all such other actions as
the other Parties may reasonably request to effect the terms of this Agreement.
10.15 NO STRICT CONSTRUCTION; TABLE OF CONTENTS AND HEADINGS. The
language used in this Agreement shall be deemed to be the language chosen by the
Parties hereto to express their mutual intent and no rule of strict construction
against either Party shall apply to any term or condition of this Agreement. The
table of contents, article and section headings of this Agreement are for
reference purposes only and are to be given no effect in the construction or
interpretation of this Agreement.
10.16 ENFORCEABILITY. The Parties represent that this Agreement has
been duly authorized, executed and delivered by, and constitutes the valid and
legally binding obligations of, such representing Party, enforceable against
such representing Party in accordance with its terms, subject to applicable
bankruptcy, insolvency or similar laws affecting creditors' rights generally and
to general principles of equity, where applicable.
12
IN WITNESS WHEREOF, this Agreement has been duly executed on the
Effective Date.
CITIGROUP INC.
By: /s/ Xxxx Xxxxx
-------------------------------
Name: Xxxx Xxxxx
Title: Assistant Secretary
13
LICENSEES
EACH OF THE ENTITIES (AND SERIES
THEREOF) LISTED ON SCHEDULE A
HERETO
By: /s/ R. Xxx Xxxxxx
-------------------------------
Name: R. Xxx Xxxxxx
Title: President
14
SCHEDULE A
UNITED STATES
CITIFUNDS INSTITUTIONAL TRUST
Citi Institutional Liquid Reserves
Citi Institutional Cash Reserves
Citi Institutional US Treasury Reserves
Citi Institutional Tax Free Reserves
Citi Institutional Enhanced Income Fund
CITIFUNDS PREMIUM TRUST
Citi Premium Liquid Reserves
Citi Premium US Treasury Reserves
CITIFUNDS TRUST III
Citi California Tax Free Reserves
Citi Cash Reserves
Citi Connecticut Tax Free Reserves
Citi New York Tax Free Reserves
Citi Tax Free Reserves
Citi U.S. Treasury Reserves
CITIFUNDS TRUST I
Citi Institutional Money Reserves
15
