Exhibit g (6)
AMENDMENT TO AMENDED AND RESTATED CUSTODIAN AGREEMENT
This Amendment to the Amended and Restated Custodian Agreement is made as
of November 17, 1999 by and between New England Zenith Fund (the "Fund"),
Metropolitan Life Insurance Company ("MetLife") and State Street Bank and Trust
Company (the "Custodian"). Capitalized terms used in this Amendment without
definition shall have the respective meanings given to such terms in the Amended
and Restated Custodian Agreement referred to below.
WHEREAS, the Fund, New England Mutual Life Insurance Company ("The New
England") and the Custodian entered into an Amended and Restated Custodian
Agreement dated as of September 22, 1992 (as amended and in effect from time to
time, the "Agreement"); and
WHEREAS, MetLife, the surviving company of a merger of The New England and
MetLife, which merger was consummated on August 30, 1996, has certain rights and
obligations under the Custodian Agreement; and
WHEREAS, the Fund, the Custodian and MetLife desire to effect a novation by
removing MetLife as a party to the Custodian Agreement and by having the Fund
assume all rights and obligations of MetLife under the Custodian Agreement; and
WHEREAS, the Fund is authorized to issue shares in separate series, with
each such series representing interests in a separate portfolio of securities
and other assets, and the Fund has made the series listed on Schedule D hereto
subject to the Agreement (each such series, together with all other series
subsequently established by the Fund and made subject to the Contract in
accordance with the terms thereof, shall be referred to as a "Series", and,
collectively, the "Series"); and
WHEREAS, the Fund and the Custodian desire to amend certain provisions of
the Agreement to reflect revisions to Rule 17f-5 ("Rule 17f-5") promulgated
under the Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Fund and the Custodian desire to amend and restate certain
other provisions of the Agreement relating to the custody of assets of each of
the Portfolios held outside of the United States.
NOW THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements hereinafter contained, the parties hereby agree to amend the
Agreement, pursuant to the terms thereof, as follows:
I. Sections II.7.A through 7.M of the Agreement is hereby deleted, and
Sections 8 through 16 of the Agreement are hereby renumbered, as of the
effective date of this Amendment, as Sections 9 through 17 of Article II,
respectively.
II. New Sections II.7.A through 7.I and Sections II.8.A through 8.L of the
Agreement are hereby added, as of the effective date of this Amendment, as
set forth below.
7. THE CUSTODIAN AS FOREIGN CUSTODY MANAGER.
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7.A. DEFINITIONS.
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Capitalized terms in this Section 7 of Article II shall have the following
meanings:
"Country Risk" means all factors reasonably related to the systemic risk of
holding Foreign Assets in a particular country including, but not limited to,
such country's political environment; economic and financial infrastructure
(including any Mandatory Securities Depositories operating in the country);
prevailing or developing settlement practices; and laws and regulations
applicable to the safekeeping and recovery of Foreign Assets held in custody in
that country.
"Eligible Foreign Custodian" has the meaning set forth in section (a)(1) of Rule
17f-5, including a majority-owned or indirect subsidiary of a U.S. Bank (as
defined in Rule 17f-5), a bank holding company meeting the requirements of an
Eligible Foreign Custodian (as set forth in Rule 17f-5 or by other appropriate
action of the U.S. Securities and Exchange Commission (the "SEC")), or a foreign
branch of a Bank (as defined in Section 2(a)(5) of the 0000 Xxx) meeting the
requirements of a custodian under Section 17(f) of the 1940 Act, except that the
term does not include Mandatory Securities Depositories.
"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 Series'
transactions in such investments.
"Foreign Custody Manager" has the meaning set forth in section (a)(2) of Rule
17f-5.
"Mandatory Securities Depository" means a foreign securities depository or
clearing agency that, either as a legal or practical matter, must be used if the
Fund, on the Portfolio's behalf, determines to place Foreign Assets in a country
outside the United States (i) because required by law or regulation; (ii)
because securities cannot be withdrawn from such foreign securities depository
or clearing agency; or (iii) because maintaining or effecting trades in
securities outside the foreign securities depository or clearing agency is not
consistent with prevailing or developing custodial or market practices.
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7.B. DELEGATION TO THE CUSTODIAN AS FOREIGN CUSTODY MANAGER.
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The Fund, by resolution adopted by its Board of Trustees (the "Board"), hereby
delegates to the Custodian, with respect to the Portfolios, pursuant to Section
(b) of Rule 17f-5, the responsibilities set forth in this Section 7 of Article
II with respect to Foreign Assets of the Series held outside the United States,
and the Custodian hereby accepts such delegation, as Foreign Custody Manager
with respect to the Series.
7.C. COUNTRIES COVERED.
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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 the Fund with the
agreement of the Foreign Custody Manager. The Foreign Custody Manager shall
list on Schedule A the Eligible Foreign Custodians selected by the Foreign
Custody Manager to maintain the assets of the Series which list of Eligible
Foreign Custodians may be amended from time to time in the sole discretion of
the Foreign Custody Manager. Mandatory Securities Depositories are listed on
Schedule B to this Agreement, which Schedule B may be amended from time to time
by the Foreign Custody Manager. The Foreign Custody Manager will provide
amended versions of Schedules A and B in accordance with Section 7.G of this
Article II.
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 the Fund on behalf of the Series of the
applicable account opening requirements for such country, the Foreign Custody
Manager shall be deemed to have been delegated by the Board on behalf of the
Series responsibility as Foreign Custody Manager with respect to that country
and to have accepted such delegation. Execution of this Amendment by the Fund
shall be deemed to be a Proper Instruction to open an account, or to place or
maintain Foreign Assets, in each country listed on Schedule A in which the
Custodian has previously placed or currently maintains 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 behalf of the Series 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 of the Series with respect to that country.
The Foreign Custody Manager may withdraw its acceptance of delegated
responsibilities with respect to a designated country upon written notice to the
Fund. Sixty days (or such longer period as to which the parties agree in
writing) after receipt of any such notice by the Fund, the Custodian shall have
no further responsibility as Foreign Custody Manager to the Fund with respect to
the country as to which the Custodian's acceptance of delegation is withdrawn.
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7.D. SCOPE OF DELEGATED RESPONSIBILITIES.
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7.D.1. SELECTION OF ELIGIBLE FOREIGN CUSTODIANS.
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Subject to the provisions of this Section 7 of Article II, the Portfolio's
Foreign Custody Manager may place and maintain the Foreign Assets in the care of
the Eligible Foreign Custodian selected by the Foreign Custody Manager in each
country listed on Schedule A, as amended from time to time.
In performing its delegated responsibilities as Foreign Custody Manager to place
or maintain Foreign Assets with an Eligible Foreign Custodian, the Foreign
Custody Manager shall determine that the Foreign Assets will be subject to
reasonable care, based on the standards applicable to custodians in the country
in which the Foreign Assets will be held by that Eligible Foreign Custodian,
after considering all factors relevant to the safekeeping of such assets,
including, without limitation the factors specified in Rule 17f-5(c)(1), as
amended from time to time.
7.D.2. CONTRACTS WITH ELIGIBLE FOREIGN CUSTODIANS.
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The Foreign Custody Manager shall determine that the contract (or the rules or
established practices or procedures in the case of an Eligible Foreign Custodian
that is a foreign securities depository or clearing agency) governing the
foreign custody arrangements with each Eligible Foreign Custodian selected by
the Foreign Custody Manager satisfies the requirements of Rule 17f-5(c)(2), as
amended from time to time.
7.D.3. MONITORING.
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In each case in which the Foreign Custody Manager maintains Foreign Assets with
an Eligible Foreign Custodian selected by the Foreign Custody Manager, the
Foreign Custody Manager shall establish a system to monitor (i) the
appropriateness of maintaining the Foreign Assets with such Eligible Foreign
Custodian and (ii) the contract governing the custody arrangements established
by the Foreign Custody Manager with the Eligible Foreign Custodian (or the rules
or established practices and procedures in the case of an Eligible Foreign
Custodian selected by the Foreign Custody Manager which is a foreign securities
depository or clearing agency that is not a Mandatory Securities Depository).
In the event the Foreign Custody Manager determines that the custody
arrangements with an Eligible Foreign Custodian it has selected are no longer
appropriate, the Foreign Custody Manager shall notify the Board in accordance
with Section 7.G of Article II hereunder and assist the Series in withdrawing
their assets from such Eligible Foreign Custodian as soon as reasonably
practicable.
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7.E. GUIDELINES FOR THE EXERCISE OF DELEGATED AUTHORITY.
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For purposes of this Section 7 of Article II, the Fund and the Board shall be
deemed to have considered and determined to accept such Country Risk as is
incurred by placing and maintaining the Foreign Assets in each country for which
the Custodian is serving as Foreign Custody Manager of the Series. The Fund, on
behalf of the Series, and the Board shall be deemed to be monitoring on a
continuing basis such Country Risk to the extent that the Board considers
necessary or appropriate. The Fund and the Custodian each expressly acknowledge
that the Foreign Custody Manager shall not be delegated any responsibilities
under this Section 7 of Article II with respect to Mandatory Securities
Depositories.
7.F. STANDARD OF CARE AS FOREIGN CUSTODY MANAGER OF A PORTFOLIO.
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In performing the responsibilities delegated to it, the Foreign Custody Manager
agrees to exercise reasonable care, prudence and diligence such as a person
having responsibility for the safekeeping of assets of management investment
companies registered under the 1940 Act would exercise.
7.G. REPORTING REQUIREMENTS.
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7.G.1 The Foreign Custody Manager shall report the withdrawal of the
Foreign Assets from an Eligible Foreign Custodian and the placement of such
Foreign Assets with another Eligible Foreign Custodian by providing to the Board
amended Schedules A or B at the end of the calendar quarter in which an
amendment to either Schedule has occurred. The Foreign Custody Manager shall
make written reports notifying the Board of any other material change in the
foreign custody arrangements of the Series described in this Section 7 of
Article II promptly after the occurrence of the material change.
7.G.2 The Foreign Custody Manager shall deliver the written reports
required by Section 7.G.1 of Article II to the following address, or to such
other address as the Fund shall from time to time reasonably request:
Board of Trustees
New England Zenith Fund
c/o New England Financial
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxx
7.H. REPRESENTATIONS WITH RESPECT TO RULE 17F-5.
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The Foreign Custody Manager represents to the Fund that it is a U.S. Bank as
defined in section (a)(7) of Rule 17f-5.
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The Fund represents to the Custodian that the Board has determined that it is
reasonable for the 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 Series.
7.I. EFFECTIVE DATE AND TERMINATION OF THE CUSTODIAN AS FOREIGN CUSTODY MANAGER.
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The Board's delegation to the Custodian as Foreign Custody Manager of the Series
shall be effective as of the date hereof and shall remain in effect until
terminated at any time, without penalty, by written notice from the terminating
party to the non-terminating party or upon termination of the Agreement in
accordance with its terms, if earlier. Termination will become effective sixty
(60) days after receipt by the non-terminating party of such notice. The
provisions of Section 7.C of Article II hereof shall govern the delegation to
and termination of the Custodian as Foreign Custody Manager of the Series with
respect to designated countries.
II.8. DUTIES OF THE CUSTODIAN WITH RESPECT TO PROPERTY OF THE SERIES HELD
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OUTSIDE THE UNITED STATES.
-------------------------
8.A. DEFINITIONS.
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Capitalized terms in this Section 8 of Article II shall have the following
meanings:
"Foreign Securities System" means either a clearing agency or a securities
depository listed on Schedule A hereto or a Mandatory Securities Depository
listed on Schedule B hereto.
"Foreign Sub-Custodian" means a foreign banking institution serving as an
Eligible Foreign Custodian.
8.B. HOLDING SECURITIES.
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The Custodian shall identify on its books as belonging to each Series the
respective foreign securities held by each Foreign Sub-Custodian or Foreign
Securities System. The Custodian may hold foreign securities for all of its
customers, including the Series, 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
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to foreign securities of each Series which are maintained in such account shall
identify those securities as belonging to such Series 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.
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8.C. FOREIGN SECURITIES SYSTEMS.
--------------------------
Foreign securities shall be maintained in a Foreign Securities System in a
designated country only through arrangements implemented by the Foreign Sub-
Custodian in such country pursuant to the terms of this Agreement.
8.D. TRANSACTIONS IN FOREIGN CUSTODY ACCOUNT.
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8.D.1. DELIVERY OF FOREIGN ASSETS.
--------------------------
The Custodian or a Foreign Sub-Custodian shall release and deliver foreign
securities of a Portfolio held by such Foreign Sub-Custodian, or in a Foreign
Securities System account, only upon receipt of Proper Instructions, which may
be continuing instructions when deemed appropriate by the parties, and only in
the following cases:
(i) upon the sale of such foreign securities for the Portfolio in
accordance with commercially reasonable market practice in the
country where such foreign securities are held or traded, including,
without limitation: (A) delivery against expectation of receiving
later payment; or (B) in the case of a sale effected through a
Foreign Securities System, in accordance with the rules governing the
operation of the Foreign Securities System;
(ii) in connection with any repurchase agreement related to foreign
securities;
(iii) to the depository agent in connection with tender or other similar
offers for foreign securities of the Portfolio;
(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; provided that in
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any such case the Foreign Sub-Custodian shall have no responsibility
or liability for any loss arising from the delivery of such
securities prior to receiving payment for such securities except as
may arise from the Foreign Sub-Custodian's own negligence or willful
misconduct;
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(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 borrowing by a
Portfolio requiring a pledge of assets by such Portfolio;
(x) in connection with trading in options and futures contracts,
including delivery as original margin and variation margin;
(xi) in connection with the lending of foreign securities; and
(xii) for any other proper purpose, but only upon receipt of Proper
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Instructions specifying the foreign securities to be delivered,
setting forth the purpose for which such delivery is to be made,
declaring such purpose to be a proper trust purpose, and naming the
person or persons to whom delivery of such securities shall be made.
8.D.2. PAYMENT OF PORTFOLIO MONIES.
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Upon receipt of Proper Instructions, which may be continuing instructions when
deemed appropriate by the parties, the Custodian shall pay out, or direct the
respective Foreign Sub-Custodian or the respective Foreign Securities System to
pay out, monies of a Portfolio in the following cases only:
(i) upon the purchase of foreign securities for the Portfolio, 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; or (B) in the case of a purchase effected
through a Foreign Securities System, in accordance with the rules
governing the operation of such Foreign Securities System;
(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,
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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) for payment of part or all of the dividends received in respect of
securities sold short;
(vii) in connection with the borrowing or lending of foreign securities;
and
(viii) for any other proper purpose, but only upon receipt of Proper
Instructions specifying the amount of such payment, setting forth
the purpose for which such payment is to be made, declaring such
purpose to be a proper trust purpose, and naming the person or
persons to whom such payment is to be made.
8.D.3. MARKET CONDITIONS; MARKET INFORMATION.
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Notwithstanding any provision of this Agreement to the contrary, settlement and
payment for Foreign Assets received for the account of the Series and delivery
of Foreign Assets maintained for the account of the Series may be effected in
accordance with the customary established securities trading or processing
practices and procedures in the country or market in which the transaction
occurs, including, without limitation, delivering Foreign Assets to the
purchaser thereof or to a dealer therefor (or an agent for such purchaser or
dealer) with the expectation of receiving later payment for such Foreign Assets
from such purchaser or dealer.
The Custodian shall provide to the Board the information with respect to custody
and settlement practices in countries in which the Custodian employs a Foreign
Sub-Custodian or a Foreign Securities System, 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 the Board
being provided with substantively less information than had been previously
provided hereunder.
8.E. REGISTRATION OF FOREIGN SECURITIES.
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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
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of the foregoing, and the 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 except as such liability may arise from such nominee's own
negligence, misfeasance, bad faith or willful misconduct. The Custodian or a
Foreign Sub-Custodian shall not be obligated to accept securities on 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.
8.F. BANK ACCOUNTS.
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The Custodian shall identify on its books as belonging to each Series (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 opened and maintained outside the United States on behalf of a
Portfolio with a Foreign Sub-Custodian shall be subject only to draft or order
by the Custodian or 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.
8.G. COLLECTION OF INCOME.
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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
Series 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.
8.H. SHAREHOLDER RIGHTS.
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With respect to the foreign securities held pursuant to this Article 4, the
Custodian will use reasonable commercial efforts to facilitate the exercise of
voting and other shareholder rights, subject always to the laws, regulations and
practical constraints that may exist in the country where such securities are
issued. The 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 the Fund to exercise
shareholder rights.
8.I. COMMUNICATIONS RELATING TO FOREIGN SECURITIES.
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The Custodian shall transmit promptly to the Fund written information
(including, without limitation, pendency of calls and maturities of foreign
securities and expirations of rights in connection therewith) received by the
Custodian via the Foreign Sub-Custodians from issuers of the foreign securities
being held for the account of the Series. With respect to tender or exchange
offers, the Custodian shall transmit promptly to the Fund written information so
received by the Custodian from issuers of the foreign securities whose tender
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or exchange is sought or from the party (or its agents) making the tender or
exchange offer. Absent the Custodian's failure to observe the standard of care
set forth in Section 6.A of Article II, the Custodian shall not be liable for
any untimely exercise of any tender, exchange or other right or power in
connection with foreign securities or other property of the Series at any time
held by it unless (i) the Custodian or the respective Foreign Sub-Custodian is
in actual possession of such foreign securities or property and (ii) the
Custodian receives Proper Instructions with regard to the exercise of any such
right or power, and both (i) and (ii) occur at least three business days prior
to the date on which the Custodian is to take action to exercise such right or
power.
8.J. LIABILITY OF FOREIGN SUB-CUSTODIANS AND FOREIGN SECURITIES SYSTEMS.
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Each agreement pursuant to which the Custodian employs a Foreign Sub-Custodian
shall, to the extent possible, require the Foreign Sub-Custodian to exercise
reasonable care in the performance of its duties and, to the extent possible, to
indemnify, and hold harmless, the Custodian and the Fund from and against any
loss, damage, cost, expense, liability or claim arising out of or in connection
with the Foreign Sub-Custodian's performance of such obligations. At the Fund's
election, the Fund and the Series shall be entitled to be subrogated to the
rights of the Custodian with respect to any claims against a Foreign Sub-
Custodian as a consequence of any such loss, damage, cost, expense, liability or
claim if and to the extent that the Series have not been made whole for any such
loss, damage, cost, expense, liability or claim.
8.K. TAX LAW.
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The Custodian shall have no responsibility or liability for any obligations now
or hereafter imposed on the Fund, the Series or the Custodian as custodian of
the Series by the tax law of the United States or of any state or political
subdivision thereof. It shall be the responsibility of the Fund to notify the
Custodian of the obligations imposed on the Fund with respect to the Series or
the Custodian as custodian of the Series by the tax law of countries other than
those mentioned in the above sentence, including responsibility for withholding
and other taxes, assessments or other governmental charges, certifications and
governmental reporting. The sole responsibility of the Custodian with regard to
such tax law shall be to use reasonable efforts to assist the Fund with respect
to any claim for exemption or refund under the tax law of countries for which
the Fund has provided such information.
8.L. LIABILITY OF CUSTODIAN.
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Except as may arise from the Custodian's own negligence or willful misconduct or
the negligence or willful misconduct of a Foreign Sub-Custodian, the Custodian
shall be without liability to the Fund for any loss, liability, claim or expense
resulting from or caused by anything which is part of Country Risk.
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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 the 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 or any loss where a Sub-Custodian has otherwise
exercised the standard of care that a professional custodian engaged in the
banking or trust company industry and having professional expertise in financial
and securities processing transactions and custody would observe.
8.M. REIMBURSEMENT FOR ADVANCES.
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Notwithstanding any other provision in this Agreement, if the Fund requires the
Custodian to advance cash or foreign securities for any purpose including the
purchase or sale of foreign exchange or of contracts for foreign exchange, or in
the event that the Custodian or its nominee shall incur or be assessed any
taxes, charges, expenses, assessments, claims or liabilities in connection with
the performance of Section 8 of Article II, except such as may arise from its or
its nominee's own negligent action, negligent failure to act or willful
misconduct, each Series hereby grants to the Custodian a security interest and
pledges to the Custodian in an amount not to exceed the lesser of the dollar
amounts borrowed or two percent (15 percent, in the case of the Money Market
Series) of such Series's total assets (taken at cost), the specific securities
to be designated in writing from time to time by the Series or its investment
advisor; provided, however, that (1) if from time to time neither the Series nor
its investment adviser shall have designated in writing specific securities in
an amount at least equal to the lesser of the dollar amounts borrowed or two
percent (15 percent, in the case of the Money Market Series) of such Series's
total assets (taken at cost), or (2) if as a result of the delivery by the
Custodian out of its custody, pursuant to Proper Instructions, of any securities
so designated shall be less than lesser of the dollar amounts borrowed or two
percent (15 percent, in the case of the Money Market Series) of such Series's
total assets, then the Custodian shall have a security interest in such Series's
securities in an amount that, taken together with amounts of securities from
time to time designated in writing by the Series or its investment adviser that
have not been delivered out of the custody of the Custodian pursuant to Proper
Instructions, does not exceed the lesser of the dollar amounts borrowed or two
percent (15 percent, in the case of the Money Market Series) of such Series's
total assets (taken at cost). Should the Series fail to repay promptly any
advances of cash or securities, the Custodian shall be entitled to use available
cash and to dispose of pledged securities and property as is necessary to repay
any such advances.
III. All references to "New England Mutual Life Insurance Company" and "The New
England" in the preamble of the Agreement are hereby deleted from the
Agreement. Each time the words "The New England" appear in the Agreement,
such words are hereby replaced with the words "the Fund." The second
sentence of the third paragraph of Section 6.A. of Article II is hereby
deleted.
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IV. Except as specifically superseded or modified herein, the terms and
provisions of the Agreement shall continue to apply with full force and
effect. Regarding the Custodian's role as Foreign Custody Manager only, in
the event of any conflict between the terms of the Agreement prior to this
Amendment and this Amendment, the terms of this Amendment shall prevail.
If the Custodian is delegated the responsibilities of Foreign Custody
Manager pursuant to the terms of Article 3 hereof, in the event of any
conflict between the provisions of Articles 3 and 4 hereof, the provisions
of Article 3 shall prevail.
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IN WITNESS WHEREOF, each of the parties has caused this Amendment to be
executed in its name and behalf by its duly authorized representative as of the
date first above written.
Witnessed By: STATE STREET BANK AND TRUST COMPANY
/s/ XXXX X. XXXXXXX By: /s/ XXXXXX X. XXXXX
--------------------------- -------------------
Xxxx X. Xxxxxxx Name: Xxxxxx X. Xxxxx
A.V.P. and Assoc. Counsel Title: Vice Chairman
Witnessed By: NEW ENGLAND ZENITH FUND,
on behalf of each of its series.
/s/ XXXXXX X. XXXX By: /s/ XXXX X. XXXXXXX, XX.
--------------------------- ------------------------
Secretary Name: Xxxx X. Xxxxxxx, Xx.
New England Zenith Fund Title: Senior Vice President
Witnessed By: METROPOLITAN LIFE INSURANCE COMPANY
/s/ XXXX X. XXXX By: /s/ XXXXXXXXXXX X. XXXXXXXX
--------------------------- ---------------------------
Xxxx X. Xxxx Name: Xxxxxxxxxxx X. Xxxxxxxx
Assistant General Counsel Title: Associate General Counsel
A Copy of the Agreement and Declaration of Trust establishing New England Zenith
Fund is on file with the Secretary of State of The Commonwealth of
Massachusetts, and notice is hereby given that this Agreement is executed on
behalf of the Fund by officers of the Fund as officers and not individually and
that the obligations of or arising out of this Agreement are not binding upon
any of the Trustees, officers or shareholders individually but are binding only
upon the assets and property of the Fund.
14
SCHEDULE A
STATE STREET
GLOBAL CUSTODY NETWORK
SUBCUSTODIANS AND NON-MANDATORY DEPOSITORIES
NON-MANDATORY
COUNTRY SUBCUSTODIAN DEPOSITORIES
------- ------------ ------------
Argentina Citibank, N.A. --
Australia Westpac Banking Corporation --
Austria Erste Bank der Oesterreichischen --
Sparkassen AG
Bahrain HSBC Bank Middle East --
(as delegate of The Hongkong and
Shanghai Banking Corporation Limited)
Bangladesh Standard Chartered Bank --
Belgium Fortis Bank NV/as. --
Bermuda The Bank of Bermuda Limited --
Bolivia Citibank, N.A. --
Botswana Barclays Bank of Botswana Limited --
Brazil Citibank, N.A. --
Bulgaria ING Bank N.V. --
Canada State Street Trust Company Canada --
Chile Citibank, N.A. --
People's The Hongkong and Shanghai --
Republic Banking Corporation Limited,
of China Shanghai and Shenzhen branches
Colombia Cititrust Colombia S.A. --
Sociedad Fiduciaria
10/5/99 1
SCHEDULE A
STATE STREET
GLOBAL CUSTODY NETWORK
SUBCUSTODIANS AND NON-MANDATORY DEPOSITORIES
NON-MANDATORY
COUNTRY SUBCUSTODIAN DEPOSITORIES
------- ------------ ------------
Costa Rica Banco BCT S.A. --
Croatia Privredna Banka Zagreb d.d. --
Cyprus The Cyprus Popular Bank Ltd. --
Czech eskoslovenska Obchodni --
Republic Banka, A.S.
Denmark Den Danske Bank --
Ecuador Citibank, N.A. --
Egypt Egyptian British Bank --
(as delegate of The Hongkong
and Shanghai Banking Corporation
Limited)
Estonia Hansabank --
Finland Xxxxxx Bank Plc. --
France Paribas, S.A. --
Germany Dresdner Bank AG --
Ghana Barclays Bank of Ghana Limited --
Greece National Bank of Greece S.A. Bank of Greece,
System for Monitoring
Transactions in Securities
in Book-Entry Form
Hong Kong Standard Chartered Bank --
Hungary Citibank Rt. --
10/5/99 2
SCHEDULE A
STATE STREET
GLOBAL CUSTODY NETWORK
SUBCUSTODIANS AND NON-MANDATORY DEPOSITORIES
NON-MANDATORY
COUNTRY SUBCUSTODIAN DEPOSITORIES
------- ------------ ------------
Iceland Icebank Ltd.
India Deutsche Bank A.G. --
The Hongkong and Shanghai
Banking Corporation Limited
Indonesia Standard Chartered Bank --
Ireland Bank of Ireland --
Israel Bank Hapoalim B.M. --
Italy Paribas, S.A. --
Ivory Coast Societe Generale de Banques --
en Cote d'Ivoire
Jamaica Scotiabank Jamaica Trust and --
Merchant Bank Limited
Japan The Fuji Bank, Limited Japan Securities Depository
Center (JASDEC)
The Sumitomo Bank, Limited
Jordan HSBC Bank Middle East --
(as delegate of The Hongkong and
Shanghai Banking Corporation Limited)
Kenya Barclays Bank of Kenya Limited --
Republic The Hongkong and Shanghai Banking
of Korea Corporation Limited
Latvia A/s Hansabank --
10/5/99 3
SCHEDULE A
STATE STREET
GLOBAL CUSTODY NETWORK
SUBCUSTODIANS AND NON-MANDATORY DEPOSITORIES
NON-MANDATORY
COUNTRY SUBCUSTODIAN DEPOSITORIES
------- ------------ ------------
Lebanon HSBC Bank Middle East
(as delegate of The Hongkong and
Shanghai Banking Corporation Limited)
Lithuania Vilniaus Bankas AB --
Malaysia Standard Chartered Bank --
Malaysia Berhad
Mauritius The Hongkong and Shanghai --
Banking Corporation Limited
Mexico Citibank Mexico, S.A. --
Morocco Banque Commerciale du Maroc --
Namibia (via) Standard Bank of South Africa --
The MeesPierson N.V. --
Netherlands
New Zealand ANZ Banking Group --
(New Zealand) Limited
Norway Christiania Bank og --
Kreditkasse ASA
Oman HSBC Bank Middle East --
(as delegate of The Hongkong and
Shanghai Banking Corporation Limited)
Pakistan Deutsche Bank A.G. --
Palestine HSBC Bank Middle East --
(as delegate of The Hongkong and
Shanghai Banking Corporation Limited)
Peru Citibank, N.A. --
4
10/5/99
SCHEDULE A
STATE STREET
GLOBAL CUSTODY NETWORK
SUBCUSTODIANS AND NON-MANDATORY DEPOSITORIES
NON-MANDATORY
COUNTRY SUBCUSTODIAN DEPOSITORIES
------- ------------ ------------
Philippines Standard Chartered Bank --
Poland Citibank (Poland) S.A. --
Portugal Banco Comercial Portugues --
Qatar HSBC Bank Middle East --
Romania ING Bank N.V. --
Russia Credit Suisse First Boston AO, --
Moscow (as delegate of
Credit Suisse First Boston,
Zurich)
Singapore The Development Bank --
of Singapore Limited
Slovak Ceskoslovenska Obchodni Banka, A.S. --
Republic
Slovenia Bank Austria Creditanstalt --
d.d. Ljubljana
South Africa Standard Bank of South Africa --
Limited
Spain Banco Santander Central --
Hispano, S.A.
Sri Lanka The Hongkong and Shanghai --
Banking Corporation Limited
Swaziland Standard Bank Swaziland Limited --
Sweden Skandinaviska Enskilda Banken --
Switzerland UBS AG --
10/5/99 5
SCHEDULE A
STATE STREET
GLOBAL CUSTODY NETWORK
SUBCUSTODIANS AND NON-MANDATORY DEPOSITORIES
NON-MANDATORY
COUNTRY SUBCUSTODIAN DEPOSITORIES
------- ------------ ------------
Taiwan Central Trust of China --
- R.O.C.
Thailand Standard Chartered Bank --
Trinidad & Republic Bank Limited --
Tobago
Tunisia Banque Internationale Arabe --
de Tunisie
Turkey Citibank, N.A. --
Ukraine ING Bank Ukraine --
United State Street Bank and Trust --
Kingdom Company, London Branch
Uruguay BankBoston N.A. --
Venezuela Citibank, N.A. --
Vietnam The Hongkong and Shanghai --
Banking Corporation Limited
Zambia Barclays Bank of Zambia Limited --
Zimbabwe Barclays Bank of Zimbabwe Limited --
Euroclear (The Euroclear System)/State Street London Limited
Cedelbank S.A. (Cedel Bank, societe anonyme)/State Street London Limited
INTERSETTLE (for EASDAQ Securities)
10/5/99 6
SCHEDULE B
STATE STREET
GLOBAL CUSTODY NETWORK
MANDATORY* DEPOSITORIES
COUNTRY MANDATORY DEPOSITORIES
------- ----------------------
Argentina Caja de Valores S.A.
Australia Austraclear Limited
Reserve Bank Information and
Transfer System
Austria Oesterreichische Kontrollbank AG
(Wertpapiersammelbank Division)
Belgium Caisse Interprofessionnelle de Depots et
de Virements de Titres S.A.
Banque Nationale de Belgique
Brazil Companhia Brasileira de Liquidacao e
Custodia
Bulgaria Central Depository AD
Bulgarian National Bank
Canada Canadian Depository
for Securities Limited
Chile Deposito Central de Valores S.A.
People's Republic Shanghai Securities Central Clearing &
of China Registration Corporation
Shenzhen Securities Clearing Co., Ltd.
Colombia Deposito Centralizado de Valores
Costa Rica Central de Valores S.A.
* Mandatory depositories include entities for which use is mandatory 1
as a matter of law or effectively mandatory as a matter of market practice.
10/25/99
SCHEDULE B
STATE STREET
GLOBAL CUSTODY NETWORK
MANDATORY* DEPOSITORIES
COUNTRY MANDATORY DEPOSITORIES
------- ----------------------
Croatia Ministry of Finance
National Bank of Croatia
Sredisnja Depozitarna Agencija
Czech Republic Stredisko cennych papiru
Czech National Bank
Denmark Vaerdipapircentralen (Danish
Securities Center)
Egypt Misr Company for Clearing, Settlement,
and Depository
Estonia Eesti Vaartpaberite Keskdepositoorium
Finland Finnish Central Securities
Depository
France Societe Interprofessionnelle
pour la Compensation des
Valeurs Mobilieres
Germany Deutsche Borse Clearing AG
Greece Central Securities Depository
(Apothetirion Titlon AE)
Hong Kong Central Clearing and
Settlement System
Central Moneymarkets Unit
Hungary Kozponti Elszamolohaz es Ertektar
(Budapest) Rt. (KELER)
[Mandatory for Gov't Bonds and
dematerialized equities only; SSB does not
use for other securities]
* Mandatory depositories include entities for which use is mandatory 2
as a matter of law or effectively mandatory as a matter of market practice.
10/25/99
SCHEDULE B
STATE STREET
GLOBAL CUSTODY NETWORK
MANDATORY* DEPOSITORIES
COUNTRY MANDATORY DEPOSITORIES
------- ----------------------
India The National Securities Depository Limited
Central Depository Services India Limited
Reserve Bank of India
Indonesia Bank Indonesia
PT Kustodian Sentral Efek Indonesia
Ireland Central Bank of Ireland
Securities Settlement Office
Israel Tel Aviv Stock Exchange Clearing
House Ltd. (TASE Clearinghouse)
Bank of Israel
(As part of the TASE Clearinghouse system)
Italy Monte Titoli S.p.A.
Banca d'Italia
Ivory Coast Depositaire Central - Banque de Reglement
Jamaica Jamaica Central Securities Depository
Japan Bank of Japan Net System
Kenya Central Bank of Kenya
Republic of Korea Korea Securities Depository Corporation
Latvia Latvian Central Depository
* Mandatory depositories include entities for which use is mandatory 3
as a matter of law or effectively mandatory as a matter of market practice.
10/25/99
SCHEDULE B
STATE STREET
GLOBAL CUSTODY NETWORK
MANDATORY* DEPOSITORIES
COUNTRY MANDATORY DEPOSITORIES
------- ----------------------
Lebanon
Custodian and Clearing Center of
Financial Instruments for Lebanon
and the Middle East (MIDCLEAR) X.X.X.
The Central Bank of Lebanon
Lithuania Central Securities Depository of Lithuania
Malaysia Malaysian Central Depository Sdn. Bhd.
Bank Negara Malaysia,
Scripless Securities Trading and Safekeeping
System
Mauritius Central Depository & Settlement
Co. Ltd.
Mexico S.D. INDEVAL
(Instituto para el Deposito de Valores)
Morocco Maroclear
The Netherlands Nederlands Centraal Instituut voor
Giraal Effectenverkeer B.V. (NECIGEF)
New Zealand New Zealand Central Securities
Depository Limited
Norway Verdipapirsentralen (the Norwegian Central
Registry of Securities)
* Mandatory depositories include entities for which use is mandatory 4
as a matter of law or effectively mandatory as a matter of market practice.
10/25/99
SCHEDULE B
STATE STREET
GLOBAL CUSTODY NETWORK
MANDATORY* DEPOSITORIES
COUNTRY MANDATORY DEPOSITORIES
------- ----------------------
Oman Muscat Securities Market Depository &
Securities Registration Company
Pakistan Central Depository Company of Pakistan
Limited State Bank of Pakistan
Palestine The Palestine Stock Exchange
Peru Caja de Valores y Liquidaciones
CAVALI ICLV S.A.
Philippines Philippines Central Depository, Inc.
Registry of Scripless Securities
(XXXX) of the Bureau of Treasury
Poland National Depository of Securities
(Krajowy Depozyt Papierow Wartos'ciowych SA)
Central Treasury Bills Registrar
Portugal Central de Valores Mobiliarios
Qatar Doha Securities Market
Romania National Securities Clearing, Settlement and
Depository Company
Bucharest Stock Exchange Registry Division
National Bank of Romania
Singapore Central Depository (Pte)
Limited
Monetary Authority of Singapore
* Mandatory depositories include entities for which use is mandatory 5
as a matter of law or effectively mandatory as a matter of market practice.
10/25/99
SCHEDULE B
STATE STREET
GLOBAL CUSTODY NETWORK
MANDATORY* DEPOSITORIES
COUNTRY MANDATORY DEPOSITORIES
------- ----------------------
Slovak Republic Stredisko cennych papierov SR
Bratislava, a.s.
National Bank of Slovakia
Slovenia Klirinsko Depotna Xxxxxx x.x.
South Africa The Central Depository Limited
Strate Ltd.
Spain Servicio de Compensacion y
Liquidacion de Valores, S.A.
Banco de Espana,
Central de Anotaciones en Cuenta
Sri Lanka Central Depository System
(Pvt) Limited
Sweden Vardepapperscentralen VPC AB
(the Swedish Central Securities Depository)
Switzerland SIS - SegaIntersettle
Taiwan - R.O.C. Taiwan Securities Central
Depository Co., Ltd.
Thailand Thailand Securities Depository
Company Limited
Tunisia Societe Tunisienne Interprofessionelle pour
la Compensation et de Depots de Valeurs
Mobilieres
* Mandatory depositories include entities for which use is mandatory 6
as a matter of law or effectively mandatory as a matter of market practice.
10/25/99
SCHEDULE B
STATE STREET
GLOBAL CUSTODY NETWORK
MANDATORY* DEPOSITORIES
COUNTRY MANDATORY DEPOSITORIES
------- ----------------------
Turkey Takas ve Saklama Bankasi A..
(TAKASBANK)
Central Bank of Turkey
Ukraine National Bank of Ukraine
United Kingdom The Bank of England,
The Central Gilts Office and
The Central Moneymarkets Office
Venezuela Central Bank of Venezuela
Zambia XxXX Central Shares Depository Limited
Bank of Zambia
* Mandatory depositories include entities for which use is mandatory 7
as a matter of law or effectively mandatory as a matter of market practice.
10/25/99
SCHEDULE C
MARKET INFORMATION
PUBLICATION/TYPE OF INFORMATION BRIEF DESCRIPTION
------------------------------- -----------------
(Frequency)
The Guide to Custody An overview of safekeeping and settlement
-------------------- practices and procedures in each market in which
in World Markets State Street Bank and Trust Company offers
---------------- custodial services.
(annually)
Global Custody Network Review Information relating to the operating history
----------------------------- and structure of depositories and subcustodians
(annually) located in the markets in which State Street
Bank and Trust Company offers custodial
services, including transnational depositories.
Global Legal Survey With respect to each market in which
------------------- State Street Bank and Trust Company offers
(annually) custodial services, opinions relating to whether
local law restricts (i) access of a fund's
independent public accountants to books and
records of a Foreign Sub-Custodian or Foreign
Securities System, (ii) the Fund's ability to
recover in the event of bankruptcy or insolvency
of a Foreign Sub-Custodian or Foreign Securities
System, (iii) the Fund's ability to recover in
the event of a loss by a Foreign Sub-Custodian
or Foreign Securities System, and (iv) the
ability of a foreign investor to convert cash
and cash equivalents to U.S. dollars.
Subcustodian Agreements Copies of the subcustodian contracts State
----------------------- Street Bank and Trust Company has entered into
(annually) with each subcustodian in the markets in which
State Street Bank and Trust Company offers
subcustody services to its US mutual fund
clients.
Network Bulletins (weekly): Developments of interest to investors in the
markets in which State Street Bank and Trust
Company offers custodial services.
Foreign Custody Advisories With respect to markets in which State Street
(as necessary): Bank and Trust Company offers custodial services
which exhibit special custody risks,
developments which may impact State Street's
ability to deliver expected levels of service.
Schedule D
----------
Xxxxx Equity Growth Series
Back Bay Advisors Bond Income Series
Back Bay Advisors Managed Series
Back Bay Advisors Money Market Series
Capital Growth Series
Xxxxx Venture Value Series
Xxxxxxx Sachs Midcap Value Series
Xxxxxx Xxxxxx Balanced Series
Xxxxxx Xxxxxx Small Cap Series
MFS Investors Series
MFS Research Managers Series
Xxxxxx Xxxxxxx International Magnum Equity Series
Salomon Brothers Strategic Bond Opportunities Series
Salomon Brothers U.S. Government Series
Westpeak Growth and Income Series
Westpeak Stock Index Series
Exhibit h(8)
NEW ENGLAND ZENITH FUND
POWER OF ATTORNEY
-----------------
We, the undersigned members of the Board of Trustees of New England Zenith
Fund, hereby severally constitute and appoint, Xxxxx X. Xxxxx, Xxxx X. Xxxxxx,
Xxxx X. Xxxxxxx, Xx. and Xxxxxx X. Xxxx and each of them singly, our true and
lawful attorneys, with full power to them and each of them to sign, for us, and
in our names and in the capacities indicated below, any and all registration
statements of the New England Zenith Fund and any and all amendments thereto to
be filed with the Securities and Exchange Commission, pursuant to the Securities
Act of 1933 and/or the Investment Company Act of 1940, hereby ratifying and
confirming our signatures as they may be signed by our said attorneys to any and
all such registration statements and amendments thereto.
Witness our hands on the date set forth below.
Signature Title Date
--------- ----- ----
/s/ XXXX X. ARENA
---------------------------- Trustee February 1, 2000
Xxxx X. Arena
/s/ XXXXXX X. XXXXXXXX
---------------------------- Trustee February 1, 2000
Xxxxxx X. Xxxxxxxx
/s/ XXXX XXX XXXXX
---------------------------- Trustee February 1, 2000
Xxxx Xxx Xxxxx
/s/ XXXX X. XXXXX
---------------------------- Trustee February 1, 2000
Xxxx X. Xxxxx
/s/ XXXXX XXXXXXXXX
---------------------------- Trustee February 1, 2000
Xxxxx Xxxxxxxxx
/s/ XXXX X. XXXXX
---------------------------- Trustee February 1, 2000
Xxxx X. Xxxxx
/s/ XXXX XXXXXX XXXXXXXX
---------------------------- Trustee February 1, 2000
Xxxx Xxxxxx Xxxxxxxx
(May be executed in counterparts.)
NEW ENGLAND ZENITH FUND
POWER OF ATTORNEY
-----------------
I, the Chairman of the Board of Trustees, President, and Chief Executive
Officer of New England Zenith Fund, hereby severally constitute and appoint,
Xxxxx X. Xxxxx, Xxxx X. Xxxxxxx, Xx. and Xxxxxx X. Xxxx and each of them singly,
my true and lawful attorneys, with full power to them and each of them to sign,
for me, and in my name and in the capacities indicated below, any and all
registration statements of New England Zenith Fund and any and all amendments
thereto to be filed with the Securities and Exchange Commission, pursuant to the
Securities Act of 1933 and/or the Investment Company Act of 1940, hereby
ratifying and confirming my signature as it may be signed by my said attorneys
to any and all such registration statements and amendments thereto.
Witness my hand on the 1st of February, 2000.
/s/ XXXX X. XXXXXX
--------------------
Xxxx X. Xxxxxx
Chairman of the Board, President
and Chief Executive Officer
NEW ENGLAND ZENITH FUND
POWER OF ATTORNEY
-----------------
I, the Treasurer of New England Zenith Fund, hereby severally constitute
and appoint, Xxxx X. Xxxxxx, Xxxx X. Xxxxxxx, Xx. and Xxxxxx X. Xxxx and each of
them singly, my true and lawful attorneys, with full power to them and each of
them to sign, for me, and in my name and in the capacities indicated below, any
and all registration statements of New England Zenith Fund and any and all
amendments thereto to be filed with the Securities and Exchange Commission,
pursuant to the Securities Act of 1933 and/or the Investment Company Act of
1940, hereby ratifying and confirming my signature as it may be signed by my
said attorneys to any and all such registration statements and amendments
thereto.
Witness my hand on the 1st of February, 2000.
/s/ XXXXX X. XXXXX
------------------
Xxxxx X. Xxxxx
Treasurer
