CUSTODIAN AGREEMENT
This Agreement is made effective the 1st day of May, 2002, by and between
LEVCO SERIES TRUST, a business trust organized and existing under the laws of
Delaware ("FUND"), and STATE STREET BANK AND TRUST COMPANY, a Massachusetts
trust company ("STATE STREET"),
WITNESSETH:
WHEREAS, Fund is authorized to issue shares in separate series, with each
such series representing interests in a separate portfolio of securities and
other assets; and
WHEREAS, Fund intends that this Agreement be applicable to each of its
series existing on the date hereof (such series together with all other series
subsequently established by Fund and made subject to this Agreement in
accordance with Section 14.2, are referred to herein as the "PORTFOLIO(S)");
NOW THEREFORE, in consideration of the mutual covenants and agreements
hereinafter contained, the parties hereto agree as follows:
XXXXXXX 0 XXXXXXXXXXX XX XXXXX XXXXXX AS CUSTODIAN. Fund hereby appoints State
Street as the custodian of the assets of the Portfolios, including securities
that Fund, on behalf of the applicable Portfolio, desires to be held in places
within the United States ("DOMESTIC SECURITIES") and securities it desires to be
held outside the United States ("FOREIGN SECURITIES"). Fund, on behalf of the
Portfolio(s), agrees to deliver to State Street all securities and cash of the
Portfolios, and all payments of income, payments of principal or capital
distributions received by it with respect to all securities owned by the
Portfolio(s) from time to time, and the cash consideration received by it for
such new or treasury shares of beneficial interest of Fund representing
interests in the Portfolios ("SHARES") as may be issued or sold from time to
time. State Street shall not be responsible for any property held or received by
Fund or a Portfolio and not delivered to State Street.
Upon receipt of "PROPER INSTRUCTIONS" (as such term is defined in Section 6
hereof), State Street shall on behalf of the applicable Portfolio(s) from time
to time appoint one or more sub-custodians located in the United States, but
only in accordance with an applicable vote by the Board of Trustees or Directors
of Fund (the "BOARD") on behalf of the applicable Portfolio(s). State Street may
appoint as sub-custodian for Fund's foreign securities on behalf of the
applicable Portfolio(s) the foreign banking institutions and foreign securities
depositories designated in Schedules A and B hereto, but only in accordance with
the applicable provisions of Sections 3 and 4. State Street shall have no more
or less responsibility or liability to Fund on account of any actions or
omissions of any sub-custodian so appointed than any such sub-custodian has to
State Street.
SECTION 2 DUTIES WITH RESPECT TO PROPERTY HELD IN THE UNITED STATES
SECTION 2.1 HOLDING SECURITIES. State Street shall hold and physically
segregate for the account of each Portfolio all non-cash property to be held by
it in the United States, including all domestic securities other than securities
which are maintained pursuant to Section 2.8 in a clearing agency which acts as
a securities depository or in a book-entry system authorized by the U.S.
Department of the Treasury (each, a "U.S. SECURITIES SYSTEM").
SECTION 2.2 DELIVERY OF SECURITIES. State Street shall release and
deliver domestic securities held by State Street or in a U.S. Securities System
account of State Street ("U.S. SECURITIES SYSTEM ACCOUNT") only upon receipt of
Proper Instructions on behalf of the applicable Portfolio, which may be
continuing instructions when deemed appropriate by the parties, and only in the
following cases:
1) Upon sale of such securities for the account of the Portfolio and
receipt of payment therefor;
2) Upon the receipt of payment in connection with any repurchase
agreement related to such securities entered into by the Fund on
behalf of the Portfolio;
3) In the case of a sale effected through a U.S. Securities System,
in accordance with the provisions of Section 2.8 hereof;
4) To the depository agent in connection with tender or other similar
offers for securities of the Portfolio;
5) To the issuer thereof or its agent when such securities are
called, redeemed, retired or otherwise become payable; provided
that, in any such case, the cash or other consideration is to be
delivered to State Street;
6) To the issuer thereof or its agent for transfer into the name of
the Portfolio or into the name of any nominee(s) of State Street
or into the name or nominee name of any agent appointed pursuant
to Section 2.7 or of any sub-custodian appointed pursuant to
Section 1; or for exchange for a different number of bonds,
certificates or other evidence representing the same aggregate
face amount or number of units; provided that, in any such case,
the new securities are to be delivered to State Street;
7) Upon the sale of such securities for the account of the Portfolio,
to the broker or its clearing agent, against a receipt, for
examination in accordance with "street delivery" custom; provided
that in any such case, State Street shall have no responsibility
or liability for any loss arising from the delivery of such
securities prior to receiving payment for such securities except
as may arise from State Street's own negligence or willful
misconduct;
8) For exchange or conversion pursuant to any corporate action,
including without limitation, any calls for redemption, tender or
exchange offers, declarations, record and payment dates and
amounts of any dividends or income, plan of merger, consolidation,
recapitalization, reorganization, readjustment, split-up of
shares, changes of par value, or conversion ("CORPORATE ACTION")
of the securities of the issuer of such securities, or pursuant to
provisions for conversion contained in such securities, or
pursuant to any deposit agreement; provided that, in any such
case, the new securities and cash, if any, are to be delivered to
State Street;
9) In the case of warrants, rights or similar securities, the
surrender thereof in the exercise of such warrants, rights or
similar securities or the surrender of interim receipts or
temporary securities for definitive securities; provided that, in
any such case, the new securities and cash, if any, are to be
delivered to State Street;
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10) For delivery in connection with any loans of securities made by
the Portfolio, BUT ONLY against receipt of adequate collateral as
agreed upon from time to time by State Street and Fund on behalf
of the Portfolio, which may be in the form of cash or obligations
issued by the United States government, its agencies or
instrumentalities, except that in connection with any loans for
which collateral is to be credited to the U.S. Securities System
Account, State Street will not be held liable or responsible for
the delivery of securities owned by the Portfolio prior to the
receipt of such collateral;
11) For delivery as security in connection with any borrowing by Fund
on behalf of the Portfolio requiring a pledge of assets by Fund ,
BUT ONLY against receipt of amounts borrowed;
12) For delivery in accordance with the provisions of any agreement
among Fund on behalf of the Portfolio, State Street and a
broker-dealer registered under the Securities Exchange Act of 1934
(the "EXCHANGE Act") and a member of The National Association of
Securities Dealers, Inc. ("NASD"), relating to compliance with the
rules of The Options Clearing Corporation and of any registered
national securities exchange, or of any similar organization or
organizations, regarding escrow or other arrangements in
connection with transactions by the Portfolio;
13) For delivery in accordance with the provisions of any agreement
among Fund on behalf of the Portfolio, State Street, and a futures
commission merchant registered under the Commodity Exchange Act,
relating to compliance with the rules of the Commodity Futures
Trading Commission ("CFTC") and/or any contract market, or any
similar organization or organizations, regarding account deposits
in connection with transactions by the Portfolio;
14) Upon receipt of instructions from the transfer agent for Fund (the
"TRANSFER AGENT") for delivery to such Transfer Agent or to the
holders of Shares in connection with distributions in kind, as may
be described from time to time in the currently effective
prospectus and statement of additional information related to the
Portfolio (the "PROSPECTUS"), in satisfaction of requests by
holders of Shares for repurchase or redemption; and
15) For any other purpose, BUT ONLY upon receipt of Proper
Instructions on behalf of the applicable Portfolio specifying the
securities to be delivered and naming the person or persons to
whom delivery of such securities shall be made.
SECTION 2.3 REGISTRATION OF SECURITIES. Domestic securities (other than
bearer securities) shall be registered in the name of the Portfolio or in the
name of any nominee of Fund on behalf of the Portfolio or of State Street which
nominee shall be assigned exclusively to the Portfolio, UNLESS Fund has
authorized in writing the appointment of a nominee to be used in common with
other registered investment companies having the same investment advisor as the
Portfolio, or in the name or nominee name of any agent appointed pursuant to
Section 2.7 or in the name or nominee name of any sub-custodian appointed
pursuant to Section 1. All securities accepted by State Street under the terms
hereof shall be in "street name" or other good delivery form. If, however, Fund
directs State Street to maintain securities in "street name", State Street shall
utilize its
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best efforts only to timely collect income due Fund on such securities and to
notify Fund of relevant information regarding the securities such as maturities
and pendency of calls and Corporate Actions.
SECTION 2.4 BANK ACCOUNTS. State Street shall open and maintain a
separate bank account or accounts in the United States in the name of each
Portfolio, subject only to draft or order by State Street acting pursuant
hereto, and shall hold in such account or accounts, subject to the provisions
hereof, all cash received by it from or for the account of the Portfolio, other
than cash maintained by the Portfolio in a bank account established and used in
accordance with Rule 17f-3 under the Investment Company Act of 1940, as amended
(the "1940 ACT"). Funds held by State Street for a Portfolio may be deposited by
it to its credit as custodian in the banking department of State Street or in
such other banks or trust companies as it may in its discretion deem necessary
or desirable; provided, however, that every such bank or trust company shall be
qualified to act as a custodian under the 1940 Act and that each such bank or
trust company and the funds to be deposited with each such bank or trust company
shall on behalf of each applicable Portfolio be approved by vote of a majority
of the Board. Such funds shall be deposited by State Street in its capacity as
custodian and shall be withdrawable by State Street only in that capacity.
SECTION 2.5 COLLECTION OF INCOME. Subject to the provisions of Xxxxxxx
0.0, Xxxxx Xxxxxx shall collect on a timely basis all income and other payments
with respect to registered domestic securities to which each Portfolio shall be
entitled either by law or pursuant to custom in the securities business, and
shall collect on a timely basis all income and other payments with respect to
bearer domestic securities if, on the date of payment by the issuer, such
securities are held by State Street or its agent thereof and shall credit such
income, as collected, to such Portfolio's account. Without limiting the
generality of the foregoing, State Street shall detach and present for payment
all coupons and other income items requiring presentation as and when they
become due and shall collect interest when due on securities held hereunder.
Income due each Portfolio on securities loaned pursuant to the provisions of
Section 2.2 (10) shall be the responsibility of Fund. State Street will have no
duty or responsibility in connection therewith, other than to provide Fund with
such information or data as may be necessary to assist Fund in arranging for the
timely delivery to State Street of the income to which the Portfolio is properly
entitled.
SECTION 2.6 PAYMENT OF FUND MONIES. Upon receipt of Proper Instructions
on behalf of the applicable Portfolio, which may be continuing instructions when
deemed appropriate by the parties, State Street shall pay out monies of a
Portfolio in the following cases only:
1) Upon the purchase of domestic securities, options, futures
contracts or options on futures contracts for the account of the
Portfolio but only (a) against the delivery of such securities or
evidence of title to such options, futures contracts or options on
futures contracts to State Street (or any bank, banking firm or
trust company doing business in the United States or abroad which
is qualified under the 1940 Act to act as a custodian and has been
designated by State Street as its agent for this purpose)
registered in the name of the Portfolio or in the name of a
nominee of State Street referred to in Section 2.3 hereof or in
proper form for transfer; (b) in the case of a purchase effected
through a U.S. Securities System, in accordance with the
conditions set forth in Section 2.8 hereof; (c) in the case of
repurchase agreements entered into between Fund on behalf of the
Portfolio and State Street, or another bank, or a broker-dealer
which is a member of NASD, (i) against delivery of the securities
either in certificate form or through an entry crediting State
Street's account at the Federal Reserve Bank with such securities
or (ii) against delivery of
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the receipt evidencing purchase by the Portfolio of securities
owned by State Street along with written evidence of the agreement
by State Street to repurchase such securities from the Portfolio;
or (d) for transfer to a time deposit account of Fund in any bank,
whether domestic or foreign; such transfer may be effected prior
to receipt of a confirmation from a broker and/or the applicable
bank pursuant to Proper Instructions;
2) In connection with conversion, exchange or surrender of securities
owned by the Portfolio as set forth in Section 2.2 hereof;
3) For the redemption or repurchase of Shares issued as set forth in
Section 5 hereof;
4) For the payment of any expense or liability incurred by the
Portfolio, including but not limited to the following payments for
the account of the Portfolio: interest, taxes, management,
accounting, transfer agent and legal fees, and operating expenses
of Fund whether or not such expenses are to be in whole or part
capitalized or treated as deferred expenses;
5) For the payment of any dividends on Shares declared pursuant to
the Declaration of Trust, Articles of Incorporation, Bylaws or
other governing documents of Fund (collectively, the "GOVERNING
DOCUMENTS");
6) For payment of the amount of dividends received in respect of
securities sold short; and
7) For any other purpose, BUT ONLY upon receipt of Proper
Instructions on behalf of the Portfolio specifying the amount of
such payment and naming the person or persons to whom such payment
is to be made.
SECTION 2.7 APPOINTMENT OF AGENTS. State Street may at any time or times
in its discretion appoint (and may at any time remove) any other bank or trust
company which is itself qualified under the 1940 Act to act as a custodian, as
its agent to carry out such of the provisions of this Section 2 as State Street
may from time to time direct; provided, however, that the appointment of any
agent shall not relieve State Street of its responsibilities or liabilities
hereunder.
SECTION 2.8 DEPOSIT OF FUND ASSETS IN U.S. SECURITIES SYSTEMS. State
Street may deposit and/or maintain securities owned by a Portfolio in the U.S.
Securities System Account subject to the following provisions:
1) Such Account shall not include any assets of State Street other
than assets held as a fiduciary, custodian or otherwise for
customers;
2) The records of State Street shall identify by book-entry those
securities belonging to the Portfolio;
0) Xxxxx Xxxxxx shall pay for securities purchased for the account of
the Portfolio upon (a) receipt of advice from the U.S. Securities
System that such securities have been transferred to the U.S.
Securities System Account, and (b) the making of an entry on
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the records of State Street to reflect such payment and transfer
for the account of the Portfolio.
4) State Street shall transfer securities sold for the account of the
Portfolio upon (a) receipt of advice from the U.S. Securities
System that payment for such securities has been transferred to
the U.S. Securities System Account, and (b) the making of an entry
on the records of State Street to reflect such transfer and
payment for the account of the Portfolio.
5) Copies of all advices from the U.S. Securities System of transfers
of securities for the account of the Portfolio shall identify the
Portfolio, be maintained for the Portfolio by State Street and be
provided to Fund at its request. Upon request, State Street shall
furnish Fund on behalf of the Portfolio confirmation of each
transfer to or from the account of the Portfolio in the form of a
written advice or notice and shall furnish to Fund on behalf of
the Portfolio copies of daily transaction sheets reflecting each
day's transactions in the U.S. Securities System for the account
of the Portfolio. State Street shall provide Fund with any report
obtained by State Street on the U.S. Securities System's
accounting system, internal accounting control and procedures for
safeguarding securities deposited in the U.S. Securities System;
6) Anything to the contrary herein notwithstanding, State Street
shall be liable to Fund for the benefit of the Portfolio for any
loss or damage to the Portfolio resulting from use of the U.S.
Securities System by reason of any negligence, misfeasance or
misconduct of State Street or any of its agents or of any of its
or their employees or from failure of State Street or any such
agent to enforce effectively such rights as it may have against
the U.S. Securities System; at the election of Fund, it shall be
entitled to be subrogated to the rights of State Street with
respect to any claim against the U.S. Securities System or any
other person which State Street may have as a consequence of any
such loss or damage if and to the extent that the Portfolio has
not been made whole for any such loss or damage.
SECTION 2.9 SEGREGATED ACCOUNT. State Street shall upon receipt of
Proper Instructions on behalf of each applicable Portfolio establish and
maintain a segregated account or accounts for and on behalf of each such
Portfolio, into which account or accounts may be transferred cash and/or
securities, including securities maintained in the U.S. Securities System
Account; (1) in accordance with the provisions of any agreement among Fund on
behalf of the Portfolio, State Street and a broker-dealer registered under the
Exchange Act and a member of the NASD (or any futures commission merchant
registered under the Commodity Exchange Act), relating to compliance with the
rules of The Options Clearing Corporation and of any registered national
securities exchange (or the CFTC or any registered contract market), or of any
similar organization or organizations, regarding escrow or other arrangements in
connection with transactions by the Portfolio, (2) for purposes of segregating
cash or government securities in connection with options purchased, sold or
written by the Portfolio or commodity futures contracts or options thereon
purchased or sold by the Portfolio, (3) for the purposes of compliance by the
Portfolio with the procedures required by Investment Company Act Release No.
10666, or any subsequent release of the U.S. Securities and Exchange Commission
(the "SEC"), or interpretative opinion of the staff of the SEC, relating to the
maintenance of segregated accounts by registered investment companies, and (4)
for any other purpose upon receipt of Proper Instructions on behalf of the
applicable Portfolio.
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SECTION 2.10 OWNERSHIP CERTIFICATES FOR TAX PURPOSES. State Street shall
execute ownership and other certificates and affidavits for all federal and
state tax purposes in connection with receipt of income or other payments with
respect to domestic securities of each Portfolio and in connection with
transfers of securities.
SECTION 2.11 PROXIES. State Street shall, with respect to domestic
securities, cause to be promptly executed by the registered holder of such
securities, if the securities are registered otherwise than in the name of the
Portfolio or a nominee of the Portfolio, all proxies, without indication of the
manner in which such proxies are to be voted, and shall promptly deliver to the
Portfolio such proxies, all proxy soliciting materials and all notices relating
to such securities.
SECTION 2.12 COMMUNICATIONS RELATING TO PORTFOLIO SECURITIES. Subject to
the provisions of Xxxxxxx 0.0, Xxxxx Xxxxxx shall transmit promptly to Fund for
each Portfolio all written information received by State Street from issuers of
the securities being held for the Portfolio with respect to Corporate Actions,
notices of exercise of call and put options written by Fund on behalf of the
Portfolio, and the maturity of futures contracts purchased or sold by the
Portfolio. With respect to tender or exchange offers, State Street shall
transmit promptly to the Portfolio all written information received by State
Street from issuers of the securities whose tender or exchange is sought and
from the party (or its agents) making the tender or exchange offer. If the
Portfolio desires to take action with respect to any Corporate Action, the
Portfolio shall provide Proper Instruction to State Street at least three
business days prior to the date on which State Street is to take such action.
SECTION 3 PROVISIONS RELATING TO RULES 17F-5 AND 17F-7
SECTION 3.1 DEFINITIONS. As used throughout this Agreement, the
capitalized terms set forth below shall have the indicated meanings:
"Country Risk" means all factors reasonably related to the systemic risk of
holding Foreign Assets in a particular country including, but not limited to,
such country's political environment, economic and financial infrastructure
(including any Eligible Securities Depository operating in the country),
prevailing or developing custody and settlement practices, and laws and
regulations applicable to the safekeeping and recovery of Foreign Assets held in
custody in that country.
"Eligible Foreign Custodian" has the meaning set forth in section (a)(1) of Rule
17f-5, including a majority-owned or indirect subsidiary of a U.S. Bank (as
defined in Rule 17f-5), a bank holding company meeting the requirements of an
Eligible Foreign Custodian (as set forth in Rule 17f-5 or by other appropriate
action of the SEC, or a foreign branch of a Bank (as defined in section 2(a)(5)
of the 0000 Xxx) meeting the requirements of a custodian under section 17(f) of
the 1940 Act; the term does not include any Eligible Securities Depository.
"Eligible Securities Depository" has the meaning set forth in section (b)(1) of
Rule 17f-7.
"Foreign Assets" means any of the Portfolios' investments (including foreign
currencies) for which the primary market is outside the United States and such
cash and cash equivalents as are reasonably necessary to effect the Portfolios'
transactions in such investments.
"Foreign Custody Manager" has the meaning set forth in section (a)(3) of Rule
17f-5.
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"Rule 17f-5" means Rule 17f-5 promulgated under the 1940 Act.
"Rule 17f-7" means Rule 17f-7 promulgated under the 1940 Act.
SECTION 3.2 STATE STREET AS FOREIGN CUSTODY MANAGER
3.2.1 DELEGATION TO STATE STREET AS FOREIGN CUSTODY MANAGER. Fund, by
resolution adopted by its Board, may delegate to State Street,
subject to section (b) of Rule 17f-5, the responsibilities set
forth in this Section 3.2 with respect to Foreign Assets held
outside the United States, and State Street will, at such time
accept such delegation as Foreign Custody Manager with respect to
the Portfolios on the following terms and conditions.
3.2.2 COUNTRIES COVERED. The Foreign Custody Manager shall be
responsible for performing the delegated responsibilities defined
below only with respect to the countries and custody arrangements
for each such country listed on Schedule A, which list of
countries may be amended from time to time by Fund with the
agreement of the Foreign Custody Manager. The Foreign Custody
Manager shall list on Schedule A the Eligible Foreign Custodians
selected by the Foreign Custody Manager to maintain the assets of
the Portfolios, which list of Eligible Foreign Custodians may be
amended from time to time in the sole discretion of the Foreign
Custody Manager. The Foreign Custody Manager will provide amended
versions of Schedule A in accordance with Section 3.2.5 hereof.
Upon the receipt by the Foreign Custody Manager of Proper
Instructions to open an account or to place or maintain Foreign
Assets in a country listed on Schedule A, and the fulfillment by
Fund, on behalf of the Portfolios, of the applicable account
opening requirements for such country, the Foreign Custody Manager
shall be deemed to have been delegated by the Board on behalf of
the Portfolios responsibility as Foreign Custody Manager with
respect to that country and to have accepted such delegation.
Execution hereof by Fund shall be deemed to be a Proper
Instruction to open an account, or to place or maintain Foreign
Assets, in each country listed on Schedule A in which State Street
has previously placed or currently maintains Foreign Assets
pursuant to the terms of the contract governing the custody
arrangement. Following the receipt of Proper Instructions
directing the Foreign Custody Manager to close the account of a
Portfolio with the Eligible Foreign Custodian selected by the
Foreign Custody Manager in a designated country, the delegation by
the Board on behalf of the Portfolios to State Street as Foreign
Custody Manager for that country shall be deemed to have been
withdrawn and State Street shall immediately cease to be the
Foreign Custody Manager of the Portfolios with respect to that
country.
The Foreign Custody Manager may withdraw its acceptance of
delegated responsibilities with respect to a designated country
upon written notice to Fund. Thirty days (or such longer period to
which the parties agree in writing) after receipt of any such
notice by Fund, State Street shall have no further responsibility
in its capacity as Foreign Custody Manager to Fund with respect to
the country as to which State Street's acceptance of delegation is
withdrawn.
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3.2.3 SCOPE OF DELEGATED RESPONSIBILITIES:
(a) SELECTION OF ELIGIBLE FOREIGN CUSTODIANS. Subject to the
provisions of this Section 3.2, the Foreign Custody Manager
may place and maintain the Foreign Assets in the care of
the Eligible Foreign Custodian selected by the Foreign
Custody Manager in each country listed on Schedule A, as
amended from time to time. In performing its delegated
responsibilities as Foreign Custody Manager to place or
maintain Foreign Assets with an Eligible Foreign Custodian,
the Foreign Custody Manager shall determine that the
Foreign Assets will be subject to reasonable care, based on
the standards applicable to custodians in the country in
which the Foreign Assets will be held by that Eligible
Foreign Custodian, after considering all factors relevant
to the safekeeping of such assets, including, without
limitation the factors specified in Rule 17f-5(c)(1).
(b) CONTRACTS WITH ELIGIBLE FOREIGN CUSTODIANS. The Foreign
Custody Manager shall determine that the contract governing
the foreign custody arrangements with each Eligible Foreign
Custodian selected by the Foreign Custody Manager will
satisfy the requirements of Rule 17f-5(c)(2).
(c) MONITORING. In each case in which the Foreign Custody
Manager maintains Foreign Assets with an Eligible Foreign
Custodian selected by the Foreign Custody Manager, the
Foreign Custody Manager shall establish a system to monitor
(i) the appropriateness of maintaining the Foreign Assets
with such Eligible Foreign Custodian and (ii) the contract
governing the custody arrangements established by the
Foreign Custody Manager with the Eligible Foreign
Custodian. In the event the Foreign Custody Manager
determines that the custody arrangements with an Eligible
Foreign Custodian it has selected are no longer
appropriate, the Foreign Custody Manager shall notify the
Board in accordance with Section 3.2.5 hereunder.
3.2.4 GUIDELINES FOR THE EXERCISE OF DELEGATED AUTHORITY. For purposes
of this Section 3.2, the Board shall be deemed to have considered
and determined to accept such Country Risk as is incurred by
placing and maintaining the Foreign Assets in each country for
which State Street is serving as Foreign Custody Manager of the
Portfolios.
3.2.5 REPORTING REQUIREMENTS. The Foreign Custody Manager shall report
the withdrawal of the Foreign Assets from an Eligible Foreign
Custodian and the placement of such Foreign Assets with another
Eligible Foreign Custodian by providing to the Board an amended
Schedule A at the end of the calendar quarter in which an
amendment to such Schedule has occurred. The Foreign Custody
Manager shall make written reports notifying the Board of any
other material change in the foreign custody arrangements of the
Portfolios described in this Section 3.2 after the occurrence of
the material change.
3.2.6 STANDARD OF CARE AS FOREIGN CUSTODY MANAGER. In performing the
responsibilities delegated to it, the Foreign Custody Manager
agrees to exercise reasonable care, prudence and diligence such as
a person having responsibility for
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the safekeeping of assets of management investment companies
registered under the 1940 Act would exercise.
3.2.7 REPRESENTATIONS WITH RESPECT TO RULE 17F-5. The Foreign Custody
Manager represents to Fund that it is a U.S. Bank as defined in
section (a)(7) of Rule 17f-5. Fund represents to State Street that
the Board has determined that it is reasonable for the Board to
rely on State Street to perform the responsibilities delegated
pursuant hereto to State Street as the Foreign Custody Manager of
the Portfolios.
3.2.8 EFFECTIVE DATE AND TERMINATION AS FOREIGN CUSTODY MANAGER. The
Board's delegation to State Street as Foreign Custody Manager of
the Portfolios shall be effective as of the date hereof and shall
remain in effect until terminated at any time, without penalty, by
written notice from the terminating party to the non-terminating
party. Termination will become effective thirty (30) days after
receipt by the non-terminating party of such notice. The
provisions of Section 3.2.2 hereof shall govern the delegation to
and termination of State Street as Foreign Custody Manager of the
Portfolios with respect to designated countries.
SECTION 3.3 ELIGIBLE SECURITIES DEPOSITORIES.
3.3.1 ANALYSIS AND MONITORING. State Street shall (a) provide Fund (or
its duly-authorized investment manager or investment advisor) with
an analysis of the custody risks associated with maintaining
assets with the Eligible Securities Depositories set forth on
Schedule B hereto in accordance with section (a)(1)(i)(A) of Rule
17f-7, and (b) monitor such risks on a continuing basis, and
promptly notify Fund (or its duly-authorized investment manager or
investment advisor) of any material change in such risks, in
accordance with section (a)(1)(i)(B) of Rule 17f-7.
3.3.2 STANDARD OF CARE. State Street agrees to exercise reasonable
care, prudence and diligence in performing the duties set forth in
Section 3.3.1.
SECTION 4 DUTIES WITH RESPECT TO PROPERTY HELD OUTSIDE THE UNITED STATES
SECTION 4.1 DEFINITIONS. As used throughout this Agreement, the
capitalized terms set forth below shall have the indicated meanings:
"Foreign Securities System" means an Eligible Securities Depository listed on
Schedule B hereto.
"Foreign Sub-Custodian" means a foreign banking institution serving as an
Eligible Foreign Custodian.
SECTION 4.2 HOLDING SECURITIES. In the event that Fund has approved
investments in foreign markets pursuant to the applicable provisions of the '40
Act, State Street shall identify on its books as belonging to the Portfolios the
foreign securities held by each Foreign Sub-Custodian or Foreign Securities
System. State Street may hold foreign securities for all of its customers,
including the Portfolios, with any Foreign Sub-Custodian in an account that is
identified as belonging to State Street for the benefit of its customers,
provided however, that (1) the records of State Street with respect to foreign
securities which are maintained in such account shall identify those securities
as belonging to the Portfolios and (2), to the extent permitted and customary in
the market in which the
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account is maintained, State Street shall require that securities so held by the
Foreign Sub-Custodian be held separately from any assets of such Foreign
Sub-Custodian or of other customers of such Foreign Sub-Custodian.
SECTION 4.3 FOREIGN SECURITIES SYSTEMS. Foreign securities shall be
maintained in a Foreign Securities System in a designated country through
arrangements implemented by State Street or a Foreign Sub-Custodian, as
applicable, in such country. (Foreign. Securities Systems and U.S. Securities
Systems are collectively referred to herein as "SECURITIES SYSTEMS").
SECTION 4.4 TRANSACTIONS IN FOREIGN CUSTODY ACCOUNT
4.4.1 DELIVERY OF FOREIGN ASSETS. State Street or a Foreign
Sub-Custodian shall release and deliver foreign securities held by
State Street or such Foreign Sub-Custodian, or in a Foreign
Securities System account, only upon receipt of Proper
Instructions, which may be continuing instructions when deemed
appropriate by the parties, and only in the following cases:
(a) upon the sale of such foreign securities for the Portfolio
in accordance with commercially reasonable market practice
in the country where such foreign securities are held or
traded, including, without limitation: (i) delivery against
expectation of receiving later payment; or (ii) in the case
of a sale effected through a Foreign Securities System, in
accordance with the rules governing the operation of the
Foreign Securities System;
(b) in connection with any repurchase agreement related to
foreign securities;
(c) to the depository agent in connection with tender or other
similar offers for foreign securities;
(d) to the issuer thereof or its agent when such foreign
securities are called, redeemed, retired or otherwise
become payable;
(e) to the issuer thereof, or its agent, for transfer into the
name of State Street (or the name of the respective Foreign
Sub-Custodian or of any nominee of State Street or such
Foreign Sub-Custodian) or for exchange for a different
number of bonds, certificates or other evidence
representing the same aggregate face amount or number of
units;
(f) to brokers, clearing banks or other clearing agents for
examination or trade execution in accordance with market
custom; provided that in any such case the Foreign
Sub-Custodian shall have no responsibility or liability for
any loss arising from the delivery of such securities prior
to receiving payment for such securities except as may
arise from the Foreign Sub-Custodian's own negligence or
willful misconduct;
(g) for exchange or conversion pursuant to any plan of merger,
consolidation, recapitalization, reorganization or
readjustment of the securities of the issuer of such
securities, or pursuant to provisions for conversion
contained in such securities, or pursuant to any deposit
agreement;
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(h) in the case of warrants, rights or similar foreign
securities, the surrender thereof in the exercise of such
warrants, rights or similar securities or the surrender of
interim receipts or temporary securities for definitive
securities;
(i) for delivery as security in connection with any borrowing
by the Portfolios requiring a pledge of assets by the
Portfolios;
(j) in connection with trading in options and futures
contracts, including delivery as original margin and
variation margin;
(k) in connection with the lending of foreign securities; and
(l) for any other purpose, but only upon receipt of Proper
Instructions specifying the foreign securities to be
delivered and naming the person or persons to whom delivery
of such securities shall be made.
4.4.2 PAYMENT OF PORTFOLIO MONIES. Upon receipt of Proper Instructions,
which may be continuing instructions when deemed appropriate by
the parties, State Street shall pay out, or direct the respective
Foreign Sub-Custodian or the respective Foreign Securities System
to pay out, monies of a Portfolio in the following cases only:
(a) upon the purchase of foreign securities for the Portfolio,
unless otherwise directed by Proper Instructions, by (i)
delivering money to the seller thereof or to a dealer
therefor (or an agent for such seller or dealer) against
expectation of receiving later delivery of such foreign
securities; or (ii) in the case of a purchase effected
through a Foreign Securities System, in accordance with the
rules governing the operation of such Foreign Securities
System;
(b) in connection with the conversion, exchange or surrender of
foreign securities;
(c) for the payment of any expense or liability of the
Portfolio, including but not limited to the following
payments: interest, taxes, investment advisory fees,
transfer agency fees, fees hereunder, legal fees,
accounting fees, and other operating expenses;
(d) for the purchase or sale of foreign exchange or foreign
exchange contracts for the Portfolio, including
transactions executed with or through State Street or its
Foreign Sub-Custodians;
(e) in connection with trading in options and futures
contracts, including delivery as original margin and
variation margin;
(f) for payment of part or all of the dividends received in
respect of securities sold short;
(g) in connection with the borrowing or lending of foreign
securities; and
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(h) for any other purpose, but only upon receipt of Proper
Instructions specifying the amount of such payment and
naming the person or persons to whom such payment is to be
made.
4.4.3 MARKET CONDITIONS. Notwithstanding any provision hereof to the
contrary, settlement and payment for Foreign Assets received for
the account of the Portfolios and delivery of Foreign Assets
maintained for the account of the Portfolios may be effected in
accordance with the customary established securities trading or
processing practices and procedures in the country or market in
which the transaction occurs, including, without limitation,
delivering Foreign Assets to the purchaser thereof or to a dealer
therefor (or an agent for such purchaser or dealer) with the
expectation of receiving later payment for such Foreign Assets
from such purchaser or dealer.
State Street shall provide to the Board the information with
respect to custody and settlement practices in countries in which
State Street employs a Foreign Sub-Custodian described on Schedule
C hereto at the time or times set forth on such Schedule. State
Street may revise Schedule C from time to time, provided that no
such revision shall result in the Board being provided with
substantively less information than had been previously provided
hereunder.
SECTION 4.5 REGISTRATION OF FOREIGN SECURITIES. The foreign securities
maintained in the custody of a Foreign Sub-Custodian (other than bearer
securities) shall be registered in the name of the applicable Portfolio or in
the name of State Street or in the name of any Foreign Sub-Custodian or in the
name of any nominee of the foregoing, and Fund on behalf of such Portfolio
agrees to hold any such nominee harmless from any liability as a holder of
record of such foreign securities. State Street or a Foreign Sub-Custodian shall
not be obligated to accept securities on behalf of a Portfolio under the terms
hereof unless the form of such securities and the manner in which they are
delivered are in accordance with reasonable market practice.
SECTION 4.6 BANK ACCOUNTS. State Street shall identify on its books as
belonging to Fund cash (including cash denominated in foreign currencies)
deposited with State Street. Where State Street is unable to maintain, or market
practice does not facilitate the maintenance of, cash on the books of State
Street, a bank account or bank accounts shall be opened and maintained outside
the United States on behalf of a Portfolio with a Foreign Sub-Custodian. All
accounts referred to in this Section shall be subject only to draft or order by
State Street (or, if applicable, such Foreign Sub-Custodian) acting pursuant to
the terms hereof to hold cash received by or from or for the account of the
Portfolio. Cash maintained on the books of State Street (including its branches,
subsidiaries and affiliates), regardless of currency denomination, is maintained
in bank accounts established under, and subject to the laws of, The Commonwealth
of Massachusetts.
SECTION 4.7 COLLECTION OF INCOME. State Street shall use reasonable
commercial efforts to collect all income and other payments with respect to the
Foreign Assets held hereunder to which the Portfolios shall be entitled and
shall credit such income, as collected, to the applicable Portfolio. In the
event that extraordinary measures are required to collect such income, Fund and
State Street shall consult as to such measures and as to the compensation and
expenses of State Street relating to such measures.
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SECTION 4.8 SHAREHOLDER RIGHTS. With respect to the foreign securities
held pursuant to this Xxxxxxx 0, Xxxxx Xxxxxx will use reasonable commercial
efforts to facilitate the exercise of voting and other shareholder rights,
subject always to the laws, regulations and practical constraints that may exist
in the country where such securities are issued. Fund acknowledges that local
conditions, including lack of regulation, onerous procedural obligations, lack
of notice and other factors may have the effect of severely limiting the ability
of Fund to exercise shareholder rights.
SECTION 4.9 COMMUNICATIONS RELATING TO FOREIGN SECURITIES. State Street
shall transmit promptly to Fund written information with respect to Corporate
Actions received by State Street via the Foreign Sub-Custodians from issuers of
the foreign securities being held for the account of the Portfolios. With
respect to tender or exchange offers, State Street shall transmit promptly to
Fund written information with respect to materials so received by State Street
from issuers of the foreign securities whose tender or exchange is sought or
from the party (or its agents) making the tender or exchange offer. State Street
shall not be liable for any untimely exercise of any action, right or power in
connection with a Corporate Action unless (1) State Street or the respective
Foreign Sub-Custodian is in actual possession of such foreign securities or
property and (2) State Street receives Proper Instructions with regard to the
Corporate Action, and both (1) and (2) occur at least three business days prior
to the date on which State Street is to take action to exercise such right or
power.
SECTION 4.10 LIABILITY OF FOREIGN SUB-CUSTODIANS. Each agreement
pursuant to which State Street employs a Foreign Sub-Custodian shall, to the
extent possible, require the Foreign Sub-Custodian to exercise reasonable care
in the performance of its duties, and to indemnify, and hold harmless, State
Street from and against any loss, damage, cost, expense, liability or claim
arising out of or in connection with the Foreign Sub-Custodian's performance of
such obligations. At Fund's election, the Portfolios shall be entitled to be
subrogated to the rights of State Street with respect to any claims against a
Foreign Sub-Custodian as a consequence of any such loss, damage, cost, expense,
liability or claim if and to the extent that the Portfolios have not been made
whole for any such loss, damage, cost, expense, liability or claim.
SECTION 4.11 TAX LAW. State Street shall have no responsibility or
liability for any obligations now or hereafter imposed on Fund, the Portfolios
or State Street as custodian of the Portfolios by the tax law of the United
States or of any state or political subdivision thereof. It shall be the
responsibility of Fund to notify State Street of the obligations imposed on Fund
with respect to the Portfolios or State Street as custodian of the Portfolios by
the tax law of countries other than those mentioned in the above sentence,
including responsibility for withholding and other taxes, assessments or other
governmental charges, certifications and governmental reporting. The sole
responsibility of State Street with regard to such tax law shall be to use
reasonable efforts to assist Fund with respect to any claim for exemption or
refund under the tax law of countries for which Fund has provided such
information.
SECTION 4.12 LIABILITY OF STATE STREET. State Street shall be liable for
the acts or omissions of a Foreign Sub-Custodian to the same extent as set forth
with respect to sub-custodians generally herein and, regardless of whether
assets are maintained in the custody of a Foreign Sub-Custodian or a Foreign
Securities System, State Street shall not be liable for any loss, damage, cost,
expense, liability or claim resulting from nationalization, expropriation,
currency restrictions, or acts of war or terrorism, or any other loss where the
Sub-Custodian has otherwise acted with reasonable care.
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SECTION 5 PAYMENTS FOR SALES OR REPURCHASES OR REDEMPTIONS OF SHARES. State
Street shall receive from the distributor for the Shares or from the Transfer
Agent and deposit into the account of the appropriate Portfolio such payments as
are received for Shares thereof issued or sold from time to time by Fund. State
Street will provide timely notification to Fund on behalf of each such Portfolio
and the Transfer Agent of any receipt by it of payments for Shares of such
Portfolio.
From such funds as may be available for the purpose, State Street shall, upon
receipt of instructions from the Transfer Agent, make funds available for
payment to holders of Shares who have delivered to the Transfer Agent a request
for redemption or repurchase of their Shares. In connection with the redemption
or repurchase of Shares, State Street is authorized upon receipt of instructions
from the Transfer Agent to wire funds to or through a commercial bank designated
by the redeeming shareholders. In connection with the redemption or repurchase
of Shares, State Street shall honor checks drawn on State Street by a holder of
Shares, which checks have been furnished by Fund to the holder of Shares, when
presented to State Street in accordance with such procedures and controls as are
mutually agreed upon from time to time between Fund and State Street.
SECTION 6 PROPER INSTRUCTIONS. Proper Instructions as used throughout this
Agreement means a writing signed or initialed by one or more person or persons
as the Board shall have from time to time authorized. Each such writing shall
set forth the specific transaction or type of transaction involved, including a
specific statement of the purpose for which such action is requested. Oral
instructions will be considered Proper Instructions if State Street reasonably
believes them to have been given by a person authorized to give such
instructions with respect to the transaction involved. Fund shall cause all oral
instructions to be confirmed in writing. Proper Instructions may include
communications effected directly between electro-mechanical or electronic
devices, provided that Fund and State Street agree to security procedures. For
purposes of this Section, Proper Instructions shall include instructions
received by State Street pursuant to any three-party agreement that requires a
segregated asset account in accordance with Section 2.9 and instructions given
by Fund pursuant to the Funds Transfer Operating Guidelines attached hereto.
SECTION 7 ACTIONS PERMITTED WITHOUT EXPRESS AUTHORITY. State Street may in
its discretion, without express authority from Fund on behalf of each applicable
Portfolio: (1) make payments to itself or others for minor expenses of handling
securities or other similar items relating to its duties hereunder, provided
that all such payments shall be accounted for to Fund on behalf of the
Portfolio; (2) surrender securities in temporary form for securities in
definitive form; (3) endorse for collection, in the name of the Portfolio,
checks, drafts and other negotiable instruments; and (4) in general, attend to
all non-discretionary details in connection with the sale, exchange,
substitution, purchase, transfer and other dealings with the securities and
property of the Portfolio except as otherwise directed by the Board.
SECTION 8 DUTIES WITH RESPECT TO ACCOUNTS AND RECORDS. State Street shall
with respect to each Portfolio create and maintain all records relating to the
activities and obligations under this Agreement in such manner as will meet the
obligations of the Fund under the 1940 Act, with particular attention to Section
31 thereof and Rules 31a-1 and 31a-2 thereunder. All such records shall be the
property of Fund and shall at all times during the regular business hours of
State Street be open for inspection by duly authorized officers, employees or
agents of the Fund and employees and agents of the SEC.
SECTION 9 OPINION OF FUND'S INDEPENDENT ACCOUNTANT. State Street shall take
all reasonable action, as Fund on behalf of each applicable Portfolio may from
time to time request, to
15
obtain from year to year favorable opinions from Fund's independent accountants
with respect to its activities hereunder in connection with the preparation of
Fund's Form N-1A, and Form N-SAR or other annual reports to the SEC and with
respect to any other requirements thereof.
SECTION 10 REPORTS TO FUND BY INDEPENDENT PUBLIC ACCOUNTANTS. State Street
shall provide Fund, on behalf of each of the Portfolios at such times as Fund
may reasonably require, with reports by independent public accountants on the
accounting system, internal accounting control and procedures for safeguarding
securities, futures contracts and options on futures contracts, including
securities deposited and/or maintained in any Securities System, relating to the
services provided by State Street hereunder; such reports, shall be of
sufficient scope and in sufficient detail, as may reasonably be required by Fund
to provide reasonable assurance that any material inadequacies would be
disclosed by such examination, and, if there are no such inadequacies, the
reports shall so state.
SECTION 11 COMPENSATION OF STATE STREET. State Street shall be entitled to
reasonable compensation for its services and expenses as custodian, as agreed
upon from time to time between Fund on behalf of each applicable Portfolio and
State Street.
SECTION 12 RESPONSIBILITY OF STATE STREET. So long as and to the extent that
it is in the exercise of reasonable care, State Street shall not be responsible
or liable for, and Fund shall indemnify and hold State Street harmless from and
against, any and all costs, expenses, losses, damages, charges, counsel fees
(including without limitation, disbursements and the allocable cost of in-house
counsel), payments and liabilities which may be asserted against or incurred by
State Street or for which State Street may be held to be liable, arising out of
or attributable to:
1) The purchase or sale of any assets or foreign currency positions.
Without limiting the generality of the foregoing, State Street is
under no duty or obligation to inquire into the title, validity or
genuineness of any property or evidence of title thereto received
by it or delivered by it pursuant hereto;
2) State Street's action upon any notice, request, consent,
certificate or other instrument reasonably believed by it to be
genuine and to be signed by the proper party or parties, including
any futures commission merchant acting pursuant to the terms of a
three-party futures or options agreement. State Street may receive
and accept a copy of a resolution certified by the Secretary or an
Assistant Secretary of Fund ("CERTIFIED RESOLUTION") as conclusive
evidence (a) of the authority of any person to act in accordance
with such resolution or (b) of any determination or of any action
by the Board as described in such resolution, and such resolution
may be considered as in full force and effect until receipt by
State Street of written notice to the contrary;
3) State Street's action or omission to act in good faith without
negligence, including, without limitation, acting in accordance
with any Proper Instruction; and provided further that in no event
shall State Street be liable for indirect, special or
consequential damages;
4) State Street's action or failure to act in good faith reliance
upon advice of counsel (who may be counsel for Fund) on all
matters, or on the instruction, notice, request, consent, advice,
representation, warranty or statements of any officer or employee
of Fund, or Fund's accountants or other authorized individuals.
State Street may
16
receive and accept a copy of an instruction of Fund as conclusive
evidence (a) of the authority of any person to act in accordance
with such instruction and (b) of any determination or of any
action by said party, in each case as described in such
instruction and such instruction may be considered as in full
force and effect until receipt by State Street of written notice
to the contrary;
5) Any loss, liability, claim or expense resulting from or caused by
anything which is part of Country Risk (as defined in Section 3
hereof), including without limitation nationalization,
expropriation, currency restrictions, or acts of war, revolution,
riots or terrorism.
6) Except as may arise from State Street's own negligence or willful
misconduct or the negligence or willful misconduct of a
sub-custodian or agent, the failure or delay in performance of its
obligations hereunder resulting from or caused by; (a) events or
circumstances beyond the reasonable control of State Street or any
sub-custodian or Securities System or any agent or nominee of any
of the foregoing, including, without limitation, the interruption,
suspension or restriction of trading on or the closure of any
securities market, power or other mechanical or technological
failures or interruptions, computer viruses or communications
disruptions, work stoppages, natural disasters, or other similar
events or acts; (b) errors by Fund or its duly-authorized
investment manager or investment advisor in their instructions to
State Street provided such instructions have been in accordance
with this Agreement; (c) the bankruptcy, insolvency, or
receivership of any sub-custodian; (d) the insolvency of or acts
or omissions by a Securities System; (e) any delay or failure of
any broker, agent or intermediary, central bank or other
commercially prevalent payment or clearing system to deliver to
State Street's sub-custodian or agent securities purchased or in
the remittance or payment made in connection with securities sold;
(f) any delay or failure of any company, corporation, or other
body in charge of registering or transferring securities in the
name of State Street, Fund, State Street's sub-custodians,
nominees or agents or any consequential losses arising out of such
delay or failure to transfer such securities including non-receipt
of bonus, dividends and rights and other accretions or benefits;
(g) delays or inability to perform its duties due to any disorder
in market infrastructure with respect to any particular security
or Securities System; and (h) any provision of any present or
future law or regulation or order of the United States of America,
or any state thereof, or any other country, or political
subdivision thereof or of any court of competent jurisdiction.
7) State Street's payment of money as requested by Fund, or the
taking of any other action requested by Fund, which may, in the
opinion of State Street, result in State Street or its nominee
assigned to Fund or the Portfolio being liable for the payment of
money or incurring liability of some other form. As a prerequisite
to requiring State Street to take such action, Fund on behalf of
the Portfolio shall provide indemnity to State Street in an amount
and form satisfactory to it. If Fund requires State Street, its
affiliates, subsidiaries or agents, to advance cash or securities
for any purpose (including but not limited to securities
settlements, foreign exchange contracts and assumed settlement) or
in the event that State Street or its nominee shall incur or be
assessed any taxes, charges, expenses, assessments, claims or
liabilities in connection with the performance of this Agreement,
except such as may arise from its or its nominee's own negligent
action, negligent failure to act or willful
17
misconduct, any property at any time held for the account of the
applicable Portfolio shall be security therefor and should Fund
fail to repay State Street promptly, State Street shall be
entitled to utilize available cash and to dispose of such
Portfolio's assets to the extent necessary to obtain
reimbursement.
8) Any error, omission, inaccuracy or other deficiency in information
provided to State Street by or on behalf of a Portfolio relating
to any Portfolio's accounts and records or other information, or
the failure of Fund to provide, or provide in a timely manner, any
accounts, records, or information needed by State Street to
perform its duties hereunder.
SECTION 13 TERM AND TERMINATION. This Agreement shall become effective as of
its execution, shall continue in full force and effect until terminated as
hereinafter provided, may be amended at any time by mutual agreement of the
parties hereto and may be terminated by either party by an instrument in writing
delivered or mailed, postage prepaid to the other party, such termination to
take effect not sooner than sixty (60) days after the date of such delivery or
mailing; provided, that Fund on behalf of one or more of the Portfolios may at
any time by action of its Board (1) substitute another bank or trust company for
State Street by giving notice as described above to State Street, or (2)
immediately terminate this Agreement in the event of the appointment of a
conservator or receiver for State Street by the Comptroller of the Currency or
upon the happening of a like event at the direction of an appropriate regulatory
agency or court of competent jurisdiction. Upon termination hereof:
1) Fund on behalf of each applicable Portfolio shall pay to State
Street such compensation as may be due as of the date of such
termination and shall likewise reimburse State Street for its
costs, expenses and disbursements, and designate a successor
custodian by Proper Instruction.
2) Upon payment of all sums due to it from Fund, State Street shall
deliver to the successor custodian at the office of State Street,
duly endorsed and in the form for transfer, all securities of each
applicable Portfolio then held by it hereunder and shall transfer
to an account of the successor custodian all of the securities of
each such Portfolio held in a Securities System.
In the event that no successor custodian has been designated on or before the
date when such termination shall become effective, then State Street shall have
the right to deliver to a bank or trust company, which is a "bank" as defined in
the 1940 Act, doing business in Boston, Massachusetts, or New York, New York, of
its own selection, having an aggregate capital, surplus, and undivided profits,
as shown by its last published report, of not less than $25,000,000, all
securities, funds and other properties held by State Street on behalf of each
applicable Portfolio and all instruments held by State Street relative thereto
and all other property held by it hereunder on behalf of each applicable
Portfolio, and to transfer to an account of such successor custodian all of the
securities of each such Portfolio held in any Securities System. Thereafter,
such bank or trust company shall be the successor of State Street hereunder.
In the event that accounts, records, securities, funds and other properties
remain in the possession of State Street after the date of termination hereof
owing to failure of Fund to designate a successor or otherwise, State Street
shall be entitled to fair compensation for its services during such period as
State Street retains possession of such accounts, records, securities, funds and
other properties and
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the provisions hereof relating to the duties and obligations of State Street
shall remain in full force and effect.
SECTION 14 GENERAL
SECTION 14.1 INTERPRETIVE AND ADDITIONAL PROVISIONS. In connection with
the operation hereof, State Street and Fund on behalf of each of the Portfolios,
may from time to time agree on such provisions interpretive of or in addition to
the provisions hereof as may in their joint opinion be consistent with the
general tenor of this Agreement. Any such interpretive or additional provisions
shall be in a writing signed by both parties and shall be annexed hereto,
PROVIDED that no such interpretive or additional provisions shall contravene any
applicable federal or state regulations or any provision of the governing
documents. No interpretive or additional provisions made as provided in the
preceding sentence shall be deemed to be an amendment of this Agreement.
SECTION 14.2 ADDITIONAL PORTFOLIOS. In the event that Fund establishes
one or more additional series with respect to which it desires to have State
Street render services as custodian under the terms hereof, it shall so notify
State Street in writing, and if State Street agrees to provide such services,
such series shall become a Portfolio hereunder.
SECTION 14.3 MASSACHUSETTS LAW TO APPLY. This Agreement shall be
construed and the provisions thereof interpreted under and in accordance with
laws of The Commonwealth of Massachusetts.
SECTION 14.4 PRIOR AGREEMENTS. This Agreement supersedes and terminates,
as of the date hereof, all prior agreements between Fund on behalf of each of
the Portfolios and State Street relating to the custody of Fund's assets.
SECTION 14.5 NOTICES. Any notice, instruction or other instrument
required to be given hereunder may be delivered in person to the offices of the
parties as set forth herein during normal business hours or delivered prepaid
registered mail or by telex, cable or telecopy to the parties at the following
addresses or such other addresses as may be notified by any party from time to
time.
To Fund: To State Street:
LEVCO SERIES TRUST STATE STREET BANK AND TRUST COMPANY
Xxxx X. Xxxxx & Co., Inc. 000 Xxxxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxxxx Xxxxx, Xx. 25 Xxxxxx Xxxx, XX 00000
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxx Xxxxxx, Vice President Attention: Vice President, Custody
and General Counsel
Telephone: (000) 000-0000 Telephone: 000-000-0000
Telecopy: (000) 000-0000 Telecopy: 000-000-0000
Such notice, instruction or other instrument shall be deemed to have been served
in the case of a registered letter at the expiration of five business days after
posting, in the case of cable twenty-four hours after dispatch and, in the case
of telex, immediately on dispatch and if delivered outside normal business hours
it shall be deemed to have been received at the next time after delivery when
normal business hours commence and in the case of cable, telex or telecopy on
the business day after
19
the receipt thereof. Evidence that the notice was properly addressed, stamped
and put into the post shall be conclusive evidence of posting.
SECTION 14.6 REPRODUCTION OF DOCUMENTS. This Agreement and all
schedules, addenda, exhibits, attachments and amendments hereto may be
reproduced by any photographic, photostatic, microfilm, micro-card, miniature
photographic or other similar process. The parties hereto all/each agree that
any such reproduction shall be admissible in evidence as the original itself in
any judicial or administrative proceeding, whether or not the original is in
existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
SECTION 14.7 REMOTE ACCESS SERVICES ADDENDUM. State Street and Fund
agree to be bound by the terms of the Remote Access Services Addendum attached
hereto.
SECTION 14.8 ASSIGNMENT. Except as otherwise set forth herein, this
Agreement may not be assigned by either party without the written consent of the
other.
SECTION 14.9 COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original, and all such
counterparts taken together shall constitute but one and the same Agreement.
SECTION 14.10 SEVERABILITY. If any provision in this Agreement is
determined to be invalid, illegal, in conflict with any law or otherwise
unenforceable, the remaining provisions hereof will be considered severable and
will not be affected thereby, and every remaining provision hereof will remain
in full force and effect and will remain enforceable to the fullest extent
permitted by applicable law.
SECTION 14.11 SHAREHOLDER COMMUNICATIONS ELECTION. SEC Rule 14b-2
requires banks which hold securities for the account of customers to respond to
requests by issuers of securities for the names, addresses and holdings of
beneficial owners of securities of that issuer held by the bank unless the
beneficial owner has expressly objected to disclosure of this information. In
order to comply with the rule, State Street needs Fund to indicate whether it
authorizes State Street to provide Fund's name, address, and share position to
requesting companies whose securities Fund owns. If Fund tells Xxxxx Xxxxxx
"xx", Xxxxx Xxxxxx will not provide this information to requesting companies. If
Fund tells State Street "yes" or does not check either "yes" or "no" below,
State Street is required by the rule to treat Fund as consenting to disclosure
of this information for all securities owned by Fund or any funds or accounts
established by Fund. For Fund's protection, the Rule prohibits the requesting
company from using Fund's name and address for any purpose other than corporate
communications. Please indicate below whether Fund consents or objects by
checking one of the alternatives below.
YES [ ] State Street is authorized to release Fund's name, address, and
share positions.
NO [X] State Street is not authorized to release Fund's name, address,
and share positions.
SECTION 26 DISCLAIMER OF CROSS-LIABILITY. State Street acknowledges
that Fund is a registered investment company organized as a trust with multiple
series (each series being referred to in the Agreement as a "Portfolio"). Under
no circumstances shall the rights and obligations applicable to one Portfolio
constitute a right or obligation applicable to any other Portfolio. Without
20
otherwise limiting the scope of the foregoing, State Street shall have no right
to set off claims of State Street against the Fund with respect to a Portfolio
by applying property of any other Portfolio. State Street shall maintain
separate transaction records on its books for each Portfolio as if it were a
separate investment company.
SECTION 14.8 NON-RECOURSE PROVISIONS. State Street acknowledges and
agrees that, to the extent the trustees of the Fund are regarded as entering
into this Agreement, they do so only as trustees and not individually and that
the obligations of this Agreement are not binding upon any such trustee,
officer, employee or interest holder individually, but are binding only upon the
assets and property of the Fund. State Street hereby agrees that such trustees,
officers, employees or interest holders shall not be personally liable under
this Agreement and that State Street shall look solely to the property of the
Portfolio to which a transaction relates for the performance of or payment of
any claim under this Agreement.
IN WITNESS WHEREOF, each of the parties has caused this instrument to be
executed in its name and behalf by its duly authorized representative effective
as of the day and year first written above.
LEVCO SERIES TRUST FUND SIGNATURE ATTESTED TO BY:
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxxx Xxxxxx
----------------------------------- -----------------------------
Name: Xxxxx X. Xxxxx Name: Xxxxxx Xxxxxx
----------------------------------- -----------------------------
Title: CFO/Treasurer Title: Secretary
----------------------------------- -----------------------------
STATE STREET BANK AND TRUST COMPANY SIGNATURE ATTESTED TO BY:
By: /s/ Xxxxxx X. Xxxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------- -----------------------------
Name: Xxxxxx X. Xxxxxxxxx Name: Xxxxxxx X. Xxxxxxx
----------------------------------- -----------------------------
Title: Sr. Vice President Title: VP
----------------------------------- -----------------------------
21
SCHEDULE A: STATE STREETGLOBAL CUSTODY NETWORK
SUBCUSTODIANS
COUNTRY SUBCUSTODIAN
Argentina Citibank, N.A.
Australia Westpac Banking Corporation
Austria Erste Bank der Osterreichischen 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-sa
Benin via Societe Generale de Banques en Cote d'Ivoire,
Abidjan, Ivory Coast
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.
Burkina Faso via Societe Generale de Banques en Cote d'Ivoire,
Abidjan, Ivory Coast
Canada State Street Trust Company Canada
Chile BankBoston, N.A.
People's Republic Hongkong and Shanghai Banking Corporation Limited,
of China Shanghai and Shenzhen branches
Colombia Cititrust Colombia S.A. Sociedad Fiduciaria
Costa Rica Banco BCT S.A.
Croatia Privredna Banka Zagreb d.d
Cyprus The Cyprus Popular Bank Ltd.
Czech Republic Ceskoslovenska Obchodni Banka, A.S.
Denmark Danske Bank A/S
Ecuador Citibank, N.A.
Egypt HSBC Bank Egypt S.A.E.
(as delegate of the Hongkong and Shanghai Banking
Corporation Limited)
Estonia Hansabank
Finland Nordea Bank Finland Plc.
France BNP Paribas Securities Services, S.A.
22
SCHEDULE A: STATE STREETGLOBAL CUSTODY NETWORK
SUBCUSTODIANS
COUNTRY SUBCUSTODIAN
Germany Dresdner Bank AG
Ghana Barclays Bank of Ghana Limited
Greece National Bank of Greece S.A.
Guinea-Bissau via Societe Generale de Banques en Cote d'Ivoire,
Abidjan, Ivory Coast
Hong Kong Standard Chartered Bank
Hungary HVB Bank Hungary Rt.
Iceland Icebank Ltd.
India Deutsche Bank AG
Hongkong and Shanghai Banking Corporation Limited
Indonesia Standard Chartered Bank
Ireland Bank of Ireland
Israel Bank Hapoalim B.M.
Italy BNP Paribas Securities Services, S.A.
Ivory Coast Societe Generale de Banques en Cote d'Ivoire
Jamaica Scotiabank Jamaica Trust and Merchant Bank Ltd.
Japan The Fuji Bank, Limited
Sumitomo Mitsui Banking Corporation
Jordan HSBC Bank Middle East
(as delegate of the Hongkong and Shanghai Banking
Corporation Limited)
Kazakhstan HSBC Bank Kazakhstan
(as delegate of the Hongkong and Shanghai Banking
Corporation Limited)
Kenya Barclays Bank of Kenya Limited
Republic of Korea Hongkong and Shanghai Banking Corporation Limited
Latvia A/s Hansabanka
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
Mali via Societe Generale de Banques en Cote d'Ivoire,
Abidjan, Ivory Coast
23
SCHEDULE A: STATE STREETGLOBAL CUSTODY NETWORK
SUBCUSTODIANS
COUNTRY SUBCUSTODIAN
Mauritius Hongkong and Shanghai Banking Corporation Limited
Mexico Banco Nacional de Mexico S.A.
Morocco Banque Commerciale du Maroc
Namibia Standard Bank Namibia Limited -
Netherlands Fortis Bank (Nederland) N.V.
New Zealand Westpac Banking Corporation
Niger via Societe Generale de Banques en Cote d'Ivoire,
Abidjan, Ivory Coast
Nigeria Stanbic Merchant Bank Nigeria Limited
Norway Nordea Bank Norge ASA
Oman HSBC Bank Middle East
(as delegate of the Hongkong and Shanghai Banking
Corporation Limited)
Pakistan Deutsche Bank AG
Palestine HSBC Bank Middle East
(as delegate of the Hongkong and Shanghai Banking
Corporation Limited)
Panama BankBoston, N.A.
Peru Citibank, N.A.
Philippines Standard Chartered Bank
Poland Bank Handlowy w Warszawie S.A.
Portugal Banco Comercial Portugues
Qatar HSBC Bank Middle East
(as delegate of the Hongkong and Shanghai Banking
Corporation Limited)
Romania ING Bank N.V.
Russia Credit Suisse First Boston AO - Moscow
(as delegate of Credit Suisse First Boston - Zurich)
Senegal via Societe Generale de Banques en Cote d'Ivoire,
Abidjan, Ivory Coast
Singapore The Development Bank of Singapore Limited
Slovak Republic Ceskoslovenska Obchodni Banka, A.S.
Slovenia Bank Austria Creditanstalt d.d. - Ljubljana
South Africa Standard Bank of South Africa Limited
Spain Banco Santander Central Hispano S.A.
24
SCHEDULE A: STATE STREETGLOBAL CUSTODY NETWORK
SUBCUSTODIANS
COUNTRY SUBCUSTODIAN
Sri Lanka Hongkong and Shanghai Banking Corporation Limited
Swaziland Standard Bank Swaziland Limited
Sweden Skandinaviska Enskilda Banken
Switzerland UBS AG
Taiwan - R.O.C. Central Trust of China
Thailand Standard Chartered Bank
Togo via Societe Generale de Banques en Cote d'Ivoire,
Abidjan, Ivory Coast
Trinidad & Tobago Republic Bank Limited
Tunisia Banque Internationale Arabe de Tunisie
Turkey Citibank, N.A.
Ukraine ING Bank Ukraine
United Arab Emirates HSBC Bank Middle East
(as delegate of the Hongkong and Shanghai Banking
Corporation Limited)
United Kingdom State Street Bank and Trust 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
25
SCHEDULE B: STATE STREETGLOBAL CUSTODY NETWORK
DEPOSITORIES OPERATING IN NETWORK MARKETS
COUNTRY 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
Benin Depositaire Central - Banque de Reglement
Brazil Companhia Brasileira de Liquidacao e Custodia
Sistema Especial de Liquidacao e de Custodia (SELIC)
Central de Custodia e de Liquidacao Financeira de
Titulos Privados (CETIP)
Bulgaria Central Depository AD
Bulgarian National Bank
Burkina Faso Depositaire Central - Banque de Reglement
Canada Canadian Depository for Securities Limited
Chile Deposito Central de Valores S.A.
People's Republic China Securities Depository and Clearing Corporation
of China Limited Shanghai Branch
China Securities Depository and Clearing Corporation
Limited Shenzhen Branch
Colombia Deposito Centralizado de Valores
Costa Rica Central de Valores S.A.
Croatia Ministry of Finance
National Bank of Croatia
Sredisnja Depozitarna Agencija d.d.
Czech Republic Stredisko cennych papiru - Ceska republika
Czech National Bank
Denmark Vaerdipapircentralen (Danish Securities Center)
Egypt Misr for Clearing, Settlement, and Depository S.A.E.
Estonia Eesti Vaartpaberite Keskdepositoorium
Finland Finnish Central Securities Depository
France Euroclear France
26
SCHEDULE B: STATE STREETGLOBAL CUSTODY NETWORK
DEPOSITORIES OPERATING IN NETWORK MARKETS
COUNTRY DEPOSITORIES
Germany Clearstream Banking AG, Frankfurt
Greece Bank of Greece,
System for Monitoring Transactions in Securities in
Book-Entry Form
Apothetirion Titlon AE - Central Securities Depository
Guinea-Bissau Depositaire Central - Banque de Reglement
Hong Kong Hong Kong Securities Clearing Company Limited
Central Moneymarkets Unit
Hungary Kozponti Elszamolohaz es Ertektar (Budapest) Rt.
(KELER)
Iceland Iceland Securities Depository Limited
India National Securities Depository Limited
Central Depository Services India Limited
Reserve Bank of India
Indonesia Bank Indonesia
PT Kustodian Sentral Efek Indonesia
Israel Tel Aviv Stock Exchange Clearing House Ltd.
(TASE Clearinghouse)
Italy Monte Titoli S.p.A.
Ivory Coast Depositaire Central - Banque de Reglement
Jamaica Jamaica Central Securities Depository
Japan Japan Securities Depository Center (JASDEC)
Bank of Japan
Kazakhstan Central Depository of Securities
Kenya Central Bank of Kenya
Republic of Korea Korea Securities Depository
Latvia Latvian Central Depository
Lebanon Custodian and Clearing Center of Financial Instruments
for Lebanon and the Middle East (Midclear) X.X.X.
Banque du Liban
Lithuania Central Securities Depository of Lithuania
Malaysia Malaysian Central Depository Sdn. Bhd.
Bank Negara Malaysia
27
SCHEDULE B: STATE STREETGLOBAL CUSTODY NETWORK
DEPOSITORIES OPERATING IN NETWORK MARKETS
COUNTRY DEPOSITORIES
Mali Depositaire Central - Banque de Reglement
Mauritius Central Depository and Settlement Co. Ltd.
Bank of Mauritius
Mexico S.D. Indeval, S.A. de C.V.
Morocco Maroclear
Netherlands Nederlands Centraal Instituut voor Giraal
Effectenverkeer B.V. (NECIGEF)
New Zealand New Zealand Central Securities Depository Limited
Niger Depositaire Central - Banque de Reglement
Nigeria Central Securities Clearing System Limited
Norway Verdipapirsentralen (Norwegian Central Securities
Depository)
Oman Muscat Depository & Securities Registration Company,
SAOC
Pakistan Central Depository Company of Pakistan Limited
State Bank of Pakistan
Palestine Clearing Depository and Settlement, a department
of the Palestine Stock Exchange
Peru Caja de Valores y Liquidaciones, Institucion
de Compensacion y Liquidacion de Valores S.A
Philippines Philippine Central Depository, Inc.
Registry of Scripless Securities (XXXX) of the Bureau
of Treasury
Poland National Depository of Securities
(Krajowy Depozyt Papierow Wartosciowych SA)
Central Treasury Bills Registrar
Portugal INTERBOLSA - Sociedade Gestora de Sistemas de
Liquidacao e de Sistemas Centralizados de Valores
Mobiliarios, S.A.
Qatar Central Clearing and Registration (CCR), a
department of the Doha Securities Market
Romania National Securities Clearing, Settlement and
Depository Company
Bucharest Stock Exchange Registry Division
National Bank of Romania
Russia Vneshtorgbank, Bank for Foreign Trade of the
Russian Federation
Senegal Depositaire Central - Banque de Reglement
28
SCHEDULE B: STATE STREETGLOBAL CUSTODY NETWORK
DEPOSITORIES OPERATING IN NETWORK MARKETS
COUNTRY DEPOSITORIES
Singapore Central Depository (Pte) Limited
Monetary Authority of Singapore
Slovak Republic Stredisko cennych papierov SR, a.s.
National Bank of Slovakia
Slovenia KDD - Centralna klirinsko depotna xxxxxx x.x.
South Africa Central Depository Limited
Share Transactions Totally Electronic (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 (Swedish Central
Securities Depository)
Switzerland SegaIntersettle AG (SIS)
Taiwan - R.O.C. Taiwan Securities Central Depository Co., Ltd.
Thailand Thailand Securities Depository Company Limited
Togo Depositaire Central - Banque de Reglement
Tunisia Societe Tunisienne Interprofessionelle pour la
Compensation et de Depots des Valeurs Mobilieres
Turkey Takas ve Saklama Bankasi A.S. (TAKASBANK)
Central Bank of Turkey
Ukraine National Bank of Ukraine
Mizhregionalny Fondovy Souz
United Arab Emirates Clearing and Depository System, a department of the
Dubai Financial Market
Venezuela Banco Central de Venezuela
Zambia XxXX Central Shares Depository Limited
Bank of Zambia
TRANSNATIONAL
Euroclear
Clearstream Banking AG
29
SCHEDULE C: MARKET INFORMATION
PUBLICATION/TYPE OF INFORMATION BRIEF DESCRIPTION
------------------------------- -----------------
(SCHEDULED FREQUENCY)
THE GUIDE TO CUSTODY IN An overview of settlement and safekeeping
WORLD MARKETS procedures, custody practices and foreign
(hardcopy annually and investor considerations for the markets in
regular website updates) which State Street offers custodial services.
GLOBAL CUSTODY NETWORK REVIEW Information relating to Foreign Sub-Custodians
(annually) in State Street's Global Custody Network. The
Review stands as an integral part of the
materials that State Street provides to its
U.S. mutual fund clients to assist them in
complying with SEC Rule 17f-5. The Review also
gives insight into State Street's market
expansion and Foreign Sub-Custodian selection
processes, as well as the procedures and
controls used to monitor the financial
condition and performance of our Foreign
Sub-Custodian banks.
Securities Depository Review CUSTODY RISK ANALYSES OF THE FOREIGN SECURITIES
(ANNUALLY) DEPOSITORIES PRESENTLY OPERATING IN NETWORK
MARKETS. THIS PUBLICATION IS AN INTEGRAL PART
OF THE MATERIALS THAT STATE STREET PROVIDES TO
ITS U.S. MUTUAL FUND CLIENTS TO MEET
INFORMATIONAL OBLIGATIONS CREATED BY SEC RULE
17F-7.
GLOBAL LEGAL SURVEY With respect to each market in which State
(annually) Street offers 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) a fund's ability to recover in the event
of bankruptcy or insolvency of a Foreign
Sub-Custodian or Foreign Securities System,
(iii) a 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 contracts that State Street has
(annually) entered into with each Foreign Sub-Custodian
that maintains U.S. mutual fund assets in the
markets in which State Street offers custodial
services.
GLOBAL MARKET BULLETIN Information on changing settlement and custody
(daily or as necessary) conditions in markets where State Street offers
custodial services. Includes changes in market
and tax regulations, depository developments,
dematerialization information, as well as other
market changes that may impact State Street's
clients.
Foreign Custody Advisories For those markets where State Street offers
(as necessary) custodial services that exhibit special risks
or infrastructures impacting custody, State
Street issues market advisories to highlight
those unique market factors which might impact
our ability to offer recognized custody service
levels.
Material Change Notices Informational letters and accompanying
(presently on a quarterly basis materials confirming State Street's foreign
or as otherwise necessary) custody arrangements, including a summary of
material changes with Foreign Sub-Custodians
that have occurred during the previous quarter
The notices also identify any material changes
in the custodial risks associated with
maintaining assets with Foreign Securities
Depositories. .
30
REMOTE ACCESS SERVICES ADDENDUM
To Custodian Agreement by and between State Street Bank and Trust Company
and LEVCO Series Trust dated May 1, 0000
Xxxxx Xxxxxx has developed proprietary accounting and other systems, and
has acquired licenses for other such systems, which it utilizes in conjunction
with the services we provide to you (the "Systems"). In this regard, we maintain
certain information in databases under our control and ownership that we make
available on a remote basis to our customers (the "Remote Access Services").
THE SERVICES. This addendum shall govern use of all Systems that State
Street may from time to time agree to provide you, the Customer, and your
designated investment advisors, consultants or other third parties authorized by
State Street who agree to abide by the terms of this Addendum ("Authorized
Designees") in order to provide Remote Access Services for the purpose of
obtaining and analyzing reports and information.
SECURITY PROCEDURES. You agree to comply, and to cause your Authorized
Designees to comply, with remote access operating standards and procedures and
with user identification or other password control requirements and other
security procedures as may be issued from time to time by State Street for use
of the Systems and access to the Remote Access Services. You agree to advise
State Street immediately in the event that you learn or have reason to believe
that any person to whom you have given access to the Systems or the Remote
Access Services has violated or intends to violate the terms of this Addendum
and you will cooperate with State Street in seeking injunctive or other
equitable relief. You agree to discontinue use of the Systems and Remote Access
Services, if requested, for any security reasons cited by State Street.
FEES. Fees and charges (if any) for the use of the Systems and the Remote
Access Services and related payment terms shall be as set forth in the fee
schedule in effect from time to time between the parties (the "Fee Schedule").
You shall be responsible for any tariffs, duties or taxes imposed or levied by
any government or governmental agency by reason of the transactions contemplated
by this Addendum, including, without limitation, federal, state and local taxes,
use, value added and personal property taxes (other than income, franchise or
similar taxes which may be imposed or assessed against State Street). Any
claimed exemption from such tariffs, duties or taxes shall be supported by
proper documentary evidence delivered to State Street.
PROPRIETARY INFORMATION/INJUNCTIVE RELIEF. The Systems and Remote Access
Services and the databases, computer programs, screen formats, report formats,
interactive design techniques, formulae, processes, systems, software, know-how,
algorithms, programs, training aids, printed materials, methods, books, records,
files, documentation and other information made available to you by State Street
as part of the Remote Access Services and through the use of the Systems and all
copyrights, patents, trade secrets and other proprietary rights of State Street
and its relevant licensors related thereto are the exclusive, valuable and
confidential property of State Street and its relevant licensors, as applicable
(the "Proprietary Information").
You agree on behalf of yourself and your Authorized Designees to keep the
Proprietary Information confidential and to limit access to your employees and
Authorized Designees (under a similar duty of confidentiality) who require
access to the Systems for the purposes intended. The foregoing shall not apply
to Proprietary Information in the public domain or required by law
31
to be made public.
You agree to use the Remote Access Services only in connection with the
proper purposes of this Addendum. You will not, and will cause your employees
and Authorized Designees not to, (i) permit any third party to use the Systems
or the Remote Access Services, (ii) sell, rent, license or otherwise use the
Systems or the Remote Access Services in the operation of a service bureau or
for any purpose other than as expressly authorized under this Addendum, (iii)
use the Systems or the Remote Access Services for any fund, trust or other
investment vehicle without the prior written consent of State Street, or (iv)
allow or cause any information transmitted from State Street's databases,
including data from third party sources, available through use of the Systems or
the Remote Access Services, to be redistributed or retransmitted for other than
use for or on behalf of yourself, as our Customer.
You agree that neither you nor your Authorized Designees will modify the
Systems in any way, enhance or otherwise create derivative works based upon the
Systems, nor will you or your Authorized Designees reverse engineer, decompile
or otherwise attempt to secure the source code for all or any part of the
Systems.
You acknowledge that the disclosure of any Proprietary Information, or of
any information which at law or equity ought to remain confidential, will
immediately give rise to continuing irreparable injury inadequately compensable
in damages at law, and that State Street and its licensor, if applicable, shall
be entitled to obtain immediate injunctive relief against the breach or
threatened breach of any of the foregoing undertakings, in addition to any other
legal remedies which may be available.
LIMITED WARRANTIES. State Street represents and warrants that it has the
right to grant access to the Systems and to provide the Remote Access Services
contemplated herein. Because of the nature of computer information technology,
including but not limited to the use of the Internet, and the necessity of
relying upon third-party sources, and data and pricing information obtained from
third parties, the Systems and Remote Access Services are provided "AS IS", and
you and your Authorized Designees shall be solely responsible for the investment
decisions, results obtained, regulatory reports and statements produced using
the Remote Access Services. State Street and its relevant licensors will not be
liable to you or your Authorized Designees for any direct or indirect, special,
incidental, punitive or consequential damages arising out of or in any way
connected with the Systems or the Remote Access Services, nor shall either party
be responsible for delays or nonperformance under this Addendum arising out of
any cause or event beyond such party's control.
EXCEPT AS EXPRESSLY SET FORTH IN THIS ADDENDUM, STATE STREET FOR ITSELF
AND ITS RELEVANT LICENSORS EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES CONCERNING
THE SYSTEM AND THE SERVICES TO BE RENDERED HEREUNDER, WHETHER EXPRESS OR
IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTIBILITY OR FITNESS
FOR A PARTICULAR PURPOSE.
INFRINGEMENT. State Street will defend or, at our option, settle any
claim or action brought against you to the extent that it is based upon an
assertion that access to any proprietary System developed and owned by State
Street or use of the Remote Access Services through any such proprietary System
by you under this Addendum constitutes direct infringement of any United
32
States patent or copyright or misappropriation of a trade secret, provided that
you notify State Street promptly in writing of any such claim or proceeding and
cooperate with State Street in the defense of such claim or proceeding. Should
any such proprietary System or the Remote Access Services accessed thereby or
any part thereof become, or in State Street's opinion be likely to become, the
subject of a claim of infringement or the like under the patent or copyright or
trade secret laws of the United States, State Street shall have the right, at
State Street's sole option, to (i) procure for you the right to continue using
such System or Remote Access Services, (ii) replace or modify such System or
Remote Access Services so that the System or the Remote Access Services becomes
noninfringing, or (iii) terminate access to the Remote Access Services without
further obligation.
TERMINATION. Either party may terminate access to the Remote Access
Services (i) for any reason by giving the other party at least one-hundred and
eighty (180) days' prior written notice in the case of notice of termination by
State Street to you or thirty (30) days' notice in the case of notice from you
to State Street of termination, or (ii) immediately for failure of the other
party to comply with any material term and condition of the Addendum by giving
the other party written notice of termination. In the event of termination, you
will return to State Street all Proprietary Information in your possession or in
the possession of your Authorized Designees. The foregoing provisions with
respect to confidentiality and infringement will survive termination for a
period of three (3) years.
MISCELLANEOUS. Except as provided in the next sentence, this Addendum
constitutes our entire understanding with respect to access to the Systems and
the Remote Access Services. If any State Street custody, accounting or other
services agreement with you contains terms and conditions relating to computer
systems or data access, this Addendum shall constitute an amendment and
supplement to them, and in the event of any inconsistency the provisions
providing the greatest benefit to State Street shall control. This Addendum
cannot be modified or altered except in a writing duly executed by both of us
and shall be governed by and construed in accordance with the laws of the
Commonwealth of Massachusetts.
CONFIRMED AND AGREED:
LEVCO SERIES TRUST
By: /s/ Xxxxxx Xxxxxx
-------------------
Name: Xxxxxx Xxxxxx
-------------------
Title: Secretary
-------------------
Date: 5/1/02
-------------------
33
