EXHIBIT (g)(2)
[GRAPHIC OMITTED]
GLOBAL CUSTODY AGREEMENT
This AGREEMENT is effective July 1, 2002, and is between JPMORGAN CHASE
BANK ("Bank") and TIAA-CREF Institutional Mutual Funds (the "Customer"), for the
benefit of the accounts from time to time listed on Schedule 1 hereto (the
"Funds", and each a "Fund").
1. CUSTOMER ACCOUNTS.
Bank, acting as "Securities Intermediary" (as defined in Section 15(h)
hereof) shall establish and maintain the following accounts ("Accounts"):
(a) a Custody Account (as defined in Section 15(b) hereof) in the name of
Customer for Financial Assets, which shall, except as modified by Section 15(d)
hereof, mean stocks, shares, bonds, debentures, notes, mortgages or other
obligations for the payment of money, bullion, coin and any certificates,
receipts, warrants or other instruments representing rights to receive, purchase
or subscribe for the same or evidencing or representing any other rights or
interests therein and other similar property whether certificated or
uncertificated as may be received by Bank or its Subcustodian (as defined in
Section 3 hereof) for the account of Customer, including as an "Entitlement
Holder" as defined in Section 15(c) hereof); and
(b) an account in the name of Customer ("Deposit Account") for any and all
cash in any currency received by Bank or its Subcustodian for the account of
Customer, which cash shall not be subject to withdrawal by draft or check.
Customer warrants its authority to: 1) deposit the cash and Financial
Assets (collectively "Assets") received in the Accounts and 2) give Instructions
(as defined in Section 11 hereof) concerning the Accounts. Bank may deliver
Financial Assets of the same class and type in place of those deposited in the
Custody Account.
Upon written agreement between Bank and Customer, additional Accounts may
be established and separately accounted for as additional Accounts hereunder. In
particular, Bank shall, upon receipt of Instructions from Customer on behalf of
each Fund establish and maintain a segregated account or accounts for and on
behalf of each such Fund, into which account or accounts may be transferred cash
and/or securities, including securities maintained in an account by Bank
pursuant to this Section.
It is hereby agreed that all Assets now or hereinafter held by Bank
hereunder are held for Customer and are to be maintained and disposed of by Bank
only for Customer in accordance with the terms and conditions set forth in this
Agreement.
2. MAINTENANCE OF FINANCIAL ASSETS AND CASH AT BANK AND SUBCUSTODIAN LOCATIONS.
Unless Instructions specifically require another location acceptable to
Bank:
(a) Financial Assets shall be held in the country or other jurisdiction in
which the principal trading market for such Financial Assets is located, where
such Financial Assets are to be presented for payment or
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where such Financial Assets are acquired; and
(b) Cash shall be credited to an account in a country or other jurisdiction
in which such cash may be legally deposited or is the legal currency for the
payment of public or private debts.
Cash may be held pursuant to Instructions in either interest or
non-interest bearing accounts as may be available for the particular currency.
To the extent Instructions are issued and Bank can comply with such
Instructions, Bank is authorized to maintain cash balances on deposit for
Customer with itself or one of its "Affiliates" at such reasonable rates of
interest as may from time to time be paid on such accounts, or in non-interest
bearing accounts as Customer may direct, if acceptable to Bank. For purposes
hereof, the term "Affiliate" shall mean an entity controlling, controlled by, or
under common control with, Bank.
If Customer wishes to have any of its Assets held in the custody of an
institution other than the established Subcustodians as defined in Section 3 (or
their securities depositories), such arrangement must be authorized by a written
agreement, signed by Bank and Customer. At the request of Customer, Bank may,
but need not, add to Schedule A an Eligible Foreign Custodian (as hereinafter
defined) where Bank has not acted as Foreign Custody Manager with respect to the
selection thereof. Bank shall notify Customer in the event that it elects to add
any such entity.
3. SUBCUSTODIANS AND SECURITIES DEPOSITORIES.
Bank may act hereunder through the subcustodians listed in Schedule A
hereof with which Bank has entered into subcustodial agreements
("Subcustodians"). Customer authorizes Bank to hold Assets in the Accounts in
accounts which Bank has established with one or more of its branches or
Subcustodians. Bank and Subcustodians are authorized to hold any of the
Financial Assets in their account with any securities depository in which they
participate.
Bank reserves the right to add new, replace or remove Subcustodians.
Customer shall be given reasonable notice by Bank of any amendment to Schedule
A. Upon request by Customer, Bank shall identify the name, address and principal
place of business of any Subcustodian of Customer's Assets and the name and
address of the governmental agency or other regulatory authority that supervises
or regulates such Subcustodian.
The term Subcustodian as used herein shall mean the following
(a) a "U.S. Bank", which shall mean a U.S. bank as defined in 1940 Act Rule
17f-5(a)(7); and
(b) an "Eligible Foreign Custodian", which, as defined in 1940 Act Rule
17f-5(a)(1) and (5), shall mean (i) a banking institution or trust company,
incorporated or organized under the laws of a country other than the United
States, that is regulated by that country's government or an agency thereof, and
(ii) a majority-owned direct or indirect subsidiary of a U.S. Bank or bank
holding company which subsidiary is incorporated or organized under the laws of
a country other than the United States. In addition, an Eligible Foreign
Custodian shall also mean any other entity that shall have been so qualified by
exemptive order, rule or other appropriate action of the SEC.
The term "securities depository" as used herein shall mean the following
when referring to a securities depository located:
(x) outside the U.S., an Eligible Securities Depository which, in turn,
shall have the same meaning as in 1940 Act Rule 17f-7(b)(i)-(vi) as the
same may be amended from time to time, or that has otherwise been made
exempt by an SEC exemptive order, rule or other appropriate SEC action,
except that prior to the compliance date with 1940 Act Rule 17f-7 for a
particular securities depository the term "securities depository" shall be
as defined in (a)(1)(ii)-(iii) of the 1997 amendment to 1940 Act Rule
17f-5; and
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(y) in the U.S., shall mean a "securities depository" as defined in ICA
Rule 17f-4.
For purposes of provisions of this Agreement imposing liability on Bank,
the term Subcustodian shall not include any Eligible Foreign Custodian as to
which Bank has not acted as Foreign Custody Manager. For the purposes of
clarity, the term Subcustodian shall not include any securities depository.
4. USE OF SUBCUSTODIAN.
(a) Bank shall identify the Assets on its books as belonging to Customer.
(b) A Subcustodian shall hold such Assets together with assets belonging to
other customers of Bank in accounts identified on such Subcustodian's books as
custody accounts for the exclusive benefit of customers of Bank.
(c) Any Financial Assets in the Accounts held by a Subcustodian shall be
subject only to the instructions of Bank or its agent. Any Financial Assets held
in a securities depository for the account of a Subcustodian shall be subject
only to the instructions of such Subcustodian.
(d) Any agreement Bank enters into with a Subcustodian for holding Bank's
customers' Assets shall provide that such assets shall not be subject to any
right, charge, security interest, lien or claim of any kind in favor of such
Subcustodian or its creditors except a claim of payment for their safe custody
or administration, and that the beneficial ownership of such Assets shall be
freely transferable without the payment of money or value other than for safe
custody or administration. Where Securities are deposited by a Subcustodian with
a securities depository, Bank shall cause the Subcustodian to identify on its
books as belonging to Bank, as agent, the Securities shown on the Subcustodian's
account on the books of such securities depository. The foregoing shall not
apply to the extent of any special agreement or arrangement made by Customer
with any particular Subcustodian.
5. DEPOSIT ACCOUNT TRANSACTIONS.
(a) Bank or its Subcustodians shall make payments from the Deposit Account
upon receipt of Instructions which include all information required by Bank.
(b) In the event that any payment to be made under this Section 5 exceeds
the funds available in the Deposit Account, Bank, in its discretion, may advance
Customer such excess amount which shall be deemed a loan payable on demand,
bearing interest at the rate customarily charged by Bank on similar loans.
(c) If Bank credits the Deposit Account on a payable date, or at any time
prior to actual collection and reconciliation to the Deposit Account, with
interest, dividends, redemptions or any other amount due, Customer shall
promptly return any such amount upon oral or written notification: (i) that such
amount has not been received in the ordinary course of business or (ii) that
such amount was incorrectly credited. If Customer does not promptly return any
amount upon such notification, Bank shall be entitled, upon oral or written
notification to Customer, to reverse such credit by debiting the Deposit Account
for the amount previously credited. Bank or its Subcustodian shall have no duty
or obligation to institute legal proceedings, file a claim or a proof of claim
in any insolvency proceeding or take any other action with respect to the
collection of such amount, but may act for Customer upon Instructions after
consultation with Customer.
6. CUSTODY ACCOUNT TRANSACTIONS.
(a) Assets shall be transferred, exchanged or delivered by Bank or its
Subcustodian upon receipt by Bank of Instructions which include all information
required by Bank. Settlement and payment for Financial Assets received for, and
delivery of Financial Assets out of, the Custody Account may be made in
accordance
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with the customary or established securities trading or securities
processing practices and procedures relevant to Institutional Investors (as
hereinafter defined) in the jurisdiction or market in which the transaction
occurs, including, without limitation, delivery of Financial Assets to a
purchaser, dealer or their agents against a receipt with the expectation of
receiving later payment. Except as provided in Section 6(b), delivery of
Financial Assets out of the Custody Account may also be made in any manner
specifically required by Instructions acceptable to Bank.
(b) Bank will only withdraw and deliver Financial Assets "free of payment"
as directed in written Instructions as set forth in Section 11(c) hereunder,
provided that under no circumstances are any Financial Assets to be withdrawn
and delivered by Bank to any individual.
(c) (i) Bank shall effect book entries on a "contractual settlement date
accounting" basis as described below with respect to the settlement of trades in
those markets where Bank generally offers contractual settlement date accounting
and shall notify Customer of these markets from time to time.
(x) Sales: On the settlement date for a sale, Bank shall credit the
Deposit Account with the sale proceeds of the sale and transfer
the relevant Financial Assets to an account pending settlement of
the trade if not already delivered.
(y) Purchases: On the settlement date for the purchase (or earlier,
if market practice requires delivery of the purchase price before
the settlement date), Bank shall debit the Deposit Account with
the settlement monies and credit a separate account. Bank then
shall post the Custody Account as awaiting receipt of the
expected Financial Assets. Customer shall not be entitled to the
delivery of Financial Assets that are awaiting receipt until Bank
or a Subcustodian actually receives them.
Bank reserves the right to restrict in good faith the availability of
contractual day settlement accounting for credit reasons.
(ii) Bank may (in its absolute discretion) upon oral or written
notification to Customer reverse any debit or credit made pursuant to this
Section prior to a transaction's actual settlement, and Customer shall be
responsible for any costs or liabilities resulting from such reversal. Customer
acknowledges that the procedures described in this sub-section are of an
administrative nature, and Bank does not undertake to make loans and/or
Financial Assets available to Customer.
(d) With respect to any sale or purchase transaction that is not
posted to the Account on the contractual settlement date as referred to in (c)
above, Bank shall post the transaction on the date on which the cash or
Financial Assets received as consideration for the transaction is actually
received by Bank.
(e) (i) Bank shall credit the Deposit Account with income and redemption
proceeds on Financial Assets in accordance with the times notified by Bank from
time to time on or after the anticipated payment date, net of any taxes that are
withheld by Bank or any third party. Where no time is specified for a particular
market, income and redemption proceeds from Financial Assets shall be credited
only after actual receipt and reconciliation. Bank may reverse such credits upon
oral or written notification to Customer that Bank believes that the
corresponding payment shall not be received by Bank within a reasonable period
or such credit was incorrect.
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(ii) Bank shall make reasonable endeavors in its discretion to contact
appropriate parties to collect unpaid interest, dividends or redemption
proceeds, but neither Bank nor its Subcustodians shall be obliged to file any
formal notice of default, institute legal proceedings, file proof of claim in
any insolvency proceeding, or take any similar action.
7. ACTIONS OF BANK.
Bank shall follow Instructions received regarding Assets held in the
Accounts. However, until it receives Instructions to the contrary, Bank shall:
(a) Present for payment any Financial Assets which are called, redeemed or
retired or otherwise become payable and all coupons and other income items which
call for payment upon presentation. In this connection, Bank will exercise the
standard of care provided hereunder and will monitor such publications and other
available information as would normally be monitored by professional global
custodians in the relevant markets.
(b) Execute in the name of Customer such ownership and other certificates
as may be required to obtain payments in respect of Financial Assets.
(c) Exchange interim receipts or temporary Financial Assets for definitive
Financial Assets.
(d) Appoint brokers and agents for any transaction involving the Financial
Assets, including, without limitation, Affiliates of Bank or any Subcustodian,
provided that such appointment is not the result of any negligence, misfeasance,
or misconduct on the part of Bank, its officers or employees, its branches or
its affiliates.
(e) Issue statements to Customer, at times mutually agreed upon,
identifying the Assets in the Accounts.
Bank shall send Customer an advice or notification of any actual transfers
of Assets to or from the Accounts. Such statements, advices or notifications
shall indicate the identity of the entity having custody of the Assets. Unless
Customer sends Bank a written exception or objection to any Bank statement
within sixty (60) days of receipt, Customer shall be deemed to have approved
such statement. In such event, or where Customer has otherwise approved any such
statement, Bank shall, to the extent permitted by law, be released, relieved and
discharged with respect to all matters set forth in such statement or reasonably
implied therefrom as though it had been settled by the decree of a court of
competent jurisdiction in an action where Customer and all persons having or
claiming an interest in Customer or Customer's Accounts were parties.
All collections of funds or other property paid or distributed in respect
of Financial Assets in the Custody Account shall be made at the risk of
Customer. Bank shall have no liability for any loss occasioned by delay in the
actual receipt of notice by Bank or by its Subcustodians of any payment,
redemption or other transaction regarding Financial Assets in the Custody
Account in respect of which Bank has agreed to take any action hereunder,
provided that such appointment is not the result of any negligence, misfeasance,
or misconduct on the part of Bank, its officers or employees, its branches, or
its affiliates; provided that such delay is not the result of any negligence,
misfeasance, or misconduct on the part of Bank, its officers or employees, its
branches or affiliates.
8. CORPORATE ACTIONS; PROXIES; TAX RECLAIMS.
(a) CORPORATE ACTIONS. Whenever Bank receives information concerning the
Financial Assets which requires discretionary or non-discretionary action by the
beneficial owner of the Financial Assets (other than a proxy), such as
subscription rights, bonus issues, stock repurchase plans and rights offerings,
or legal
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notices or other material intended to be transmitted to securities holders
("Corporate Actions"), Bank shall give Customer notice of such Corporate Actions
to the extent that Bank's central corporate actions department has actual
knowledge of a Corporate Action in time to notify its customers. In this
connection, Bank shall exercise the standard of care provided hereunder and will
monitor such publications and information as would ordinarily be monitored by
professional global custodians in the relevant markets.
When a rights entitlement or a fractional interest resulting from a rights
issue, stock dividend, stock split or similar Corporate Action is received which
bears an expiration date, Bank shall endeavor to obtain Instructions from
Customer or its Authorized Person (as defined in Section 10 hereof), but if
Instructions are not received in time for Bank to take timely action, or actual
notice of such Corporate Action was received too late to seek Instructions, Bank
is authorized to sell such rights entitlement or fractional interest and to
credit the Deposit Account with the proceeds or take any other action it deems,
in good faith, to be appropriate in which case it shall be held harmless for any
such action.
(b) PROXY VOTING. Bank shall provide proxy voting services, if elected by
Customer, in accordance with the terms agreed upon between Customer and Bank
from time to time. Proxy voting services may be provided by Bank or, in whole or
in part, by one or more third parties appointed by Bank (which may be Affiliates
of Bank).
(c) DOMESTIC CORPORATE ACTIONS AND PROXIES. Bank shall send to Customer or
the Authorized Person for a Custody Account, such proxies (signed in blank, if
issued in the name of Bank's nominee or the nominee of a central depository) and
communications with respect to Financial Assets in the Custody Account as call
for voting or relate to legal proceedings within a reasonable time after
sufficient copies are received by Bank for forwarding to its customers. In
addition, Bank shall follow coupon payments, redemptions, exchanges or similar
matters with respect to Financial Assets in the Custody Account and advise
Customer or the Authorized Person for such Account of rights issued, tender
offers or any other discretionary rights with respect to such Financial Assets,
in each case, of which Bank has received notice from the issuer of the Financial
Assets, or as to which notice is published in publications routinely utilized by
Bank for this purpose.
(d) TAX RECLAIMS.
(i) Subject to the provisions hereof, Bank shall apply for a reduction
of withholding tax and any refund of any tax paid or tax credits which
apply in each applicable market in respect of income payments on Financial
Assets for Customer's benefit which Bank believes may be available to
Customer.
(ii) The provision of tax reclaim services by Bank is conditional upon
Bank's receiving from Customer or, to the extent the Financial Assets are
beneficially owned by others, from each beneficial owner, A) a declaration
of the beneficial owner's identity and place of residence and (B) certain
other documentation (PRO FORMA copies of which are available from Bank).
Customer acknowledges that, if Bank does not receive such declarations,
documentation and information, Bank shall be unable to provide tax reclaim
services.
(iii) Bank shall not be liable to Customer or any third party for any
taxes, fines or penalties payable by Bank or Customer, and shall be
indemnified accordingly, whether these result from the inaccurate
completion of documents by Customer or any third party, or as a result of
the provision to Bank or any third party of inaccurate or misleading
information or the withholding of material information by Customer or any
other third party, or as a result of any delay of any revenue authority or
any other matter beyond Bank's control.
(iv) Bank shall perform tax reclaim services only with respect to
taxation
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levied by the revenue authorities of the countries notified to
Customer from time to time and Bank may, by notification in writing, at
Bank's absolute discretion, supplement or amend the markets in which tax
reclaim services are offered. Other than as expressly provided in this
sub-clause, Bank shall have no responsibility with regard to Customer's tax
position or status in any jurisdiction.
(v) Customer confirms that Bank is authorized to disclose
any information requested by any revenue authority or any
governmental body in relation to Customer or the securities and/or
cash held for Customer.
(vi) Tax reclaim services may be provided by Bank or, in
whole or in part, by one or more third parties appointed by Bank
(which may be Bank's affiliates); provided that Bank shall be liable
for the performance of any such third party to the same extent as
Bank would have been if Bank had performed such services.
(e) TAX OBLIGATIONS.
(i) Customer confirms that Bank is authorized to deduct
from any cash received or credited to the Deposit Account any taxes
or levies required by any revenue or governmental authority for
whatever reason in respect of the Custody Account.
(ii) Customer shall provide to Bank such documentation and
information as Bank may require in connection with taxation, and
warrants that, when given, this information shall be true and correct
in every respect, not misleading in any way, and contain all material
information. Customer undertakes to notify Bank immediately if any
such information requires updating or amendment.
(iii) Customer shall be responsible for the payment of all
taxes relating to the Financial Assets in the Custody Account, and
Customer agrees to pay, indemnify and hold Bank harmless from and
against any and all liabilities, penalties, interest or additions to
tax with respect to or resulting from any delay in, or failure by,
Bank (1) to pay, withhold or report any U.S. federal, state or local
taxes or foreign taxes imposed on, or (2) to report interest,
dividend or other income paid or credited to the Deposit Account,
whether such failure or delay by Bank to pay, withhold or report tax
or income is the result of (x) Customer's failure to comply with the
terms of this paragraph, or (y) Bank's own acts or omissions;
provided however, Customer shall not be liable to Bank for any
penalty or additions to tax due as a result of Bank's failure to pay,
withhold or report tax or to report interest, dividend or other
income paid or credited to the Deposit Account solely as a result of
Bank's negligent acts or omissions.
9. NOMINEES.
Financial Assets which are ordinarily held in registered form may be
registered in a nominee name of Bank, Subcustodian or securities depository, as
the case may be. Bank may without notice to Customer cause any such Financial
Assets to cease to be registered in the name of any such nominee and to be
registered in the name of Customer. In the event that any Financial Assets
registered in a nominee name are called for partial redemption by the issuer,
Bank may allot the called portion to the respective beneficial holders of such
class of security in any manner Bank deems to be fair and equitable. Customer
shall hold Bank, Subcustodians, and their respective nominees harmless from any
liability arising directly or indirectly from their status as a mere record
holder of Financial Assets in the Custody Account.
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10. AUTHORIZED PERSONS.
As used herein, the term "Authorized Person" means employees or agents of
Teachers Advisors, Inc. or TIAA-CREF Investment Management, LLC or other
employees or agents including transfer agents and investment managers as have
been designated by written notice from Customer or its designated agent to act
on behalf of Customer hereunder. Such notice shall be signed by the Treasurer,
Associate Treasurer or any Assistant Treasurer, and by the Secretary or any
Assistant Secretary as certified under the corporate seal of Customer. Such
persons shall continue to be Authorized Persons until such time as Bank receives
Instructions from Customer or its designated agent that any such employee or
agent is no longer an Authorized Person.
11. INSTRUCTIONS.
(a) The term "Instructions" means instructions of any two Authorized
Persons received by Bank, via telephone (pursuant to procedures agreed to with
Bank in writing signed by the Treasurer of Customer) or via telex, facsimile
transmission, bank wire or other teleprocess or electronic instruction or trade
information system acceptable to Bank and Customer which Bank believes in good
faith to have been given by Authorized Persons or which are transmitted with
proper testing or authentication pursuant to terms and conditions which Bank may
specify. Unless otherwise expressly provided, all Instructions shall continue in
full force and effect until canceled or superseded. The term "Instructions"
includes, without limitation, instructions to sell, assign, transfer, deliver,
purchase or receive for the Custody Account, any and all stocks, bonds and other
Financial Assets or to transfer funds in the Deposit Account.
(b) Any Instructions delivered to Bank by telephone under the conditions
set forth in Section 11(a) above shall thereafter be confirmed in writing within
one Business Day by an Authorized Person (which confirmation may bear the
facsimile signature of such Person), but Customer shall hold Bank harmless for
the failure of an Authorized Person to send such confirmation in writing, the
failure of such confirmation to conform to the telephone instructions received
or Bank's failure to produce such confirmation at any subsequent time. Bank may
electronically record any Instructions given by telephone, and any other
telephone discussions with respect to the Custody Account. Customer shall be
responsible for safeguarding any testkeys, identification codes or other
security devices which Bank shall make available to Customer or its Authorized
Persons.
(c) Where expressly provided in Section 6(b) and Section 11A herein or in
connection with the delivery of Assets "Free of Payment", written instructions
shall be acted upon only if received in writing manually signed by any two of
such Authorized Officers with the title Chairman, Vice Chairman, President,
Executive Vice President, or Treasurer, or by any one of those officers together
with any Authorized Officer with the title Senior Managing Director or Senior
Vice President.
(d) Deposit Account Payments and Custody Account Transactions made pursuant
to Section 5 and 6 of this Agreement shall include, but are not limited to, the
purposes listed below. Customer shall be solely responsible to assure that
Instructions are in accord with any limitations or restrictions applicable to
the Customer by law or as may be set forth in its prospectus.
(i) In connection with the purchase or sale of Financial Assets at
prices as confirmed by Instructions;
(ii) When Financial Assets are called, redeemed or retired, or
otherwise become payable;
(iii) In exchange for or upon conversion into other securities alone
or other securities and cash pursuant to any plan or merger, consolidation,
reorganization, recapitalization or readjustment;
(iv) Upon conversion of Financial Assets pursuant to their terms into
other securities;
(v) Upon exercise of subscription, purchase or other similar rights
represented by Financial Assets;
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(vi) For the payment of interest, taxes, management or supervisory
fees, distributions or operating expenses;
(vii) In connection with any borrowings by the Customer requiring a
pledge of Financial Assets, but only against receipt of amounts borrowed;
(viii) In connection with any loans, but only against receipt of
adequate collateral as specified in Instructions which shall reflect any
restrictions applicable to the Customer;
(ix) For the purposes of redeeming shares of the capital stock of the
Customer and the delivery to, or the crediting to the account of, the Bank,
its Subcustodian or the Customer's transfer agent, such shares to be
purchased or redeemed;
(x) For the purpose of redeeming in kind shares of the Customer
against delivery to the Bank, its Subcustodian or the Customer's transfer
agent of such shares to be so redeemed;
(xi) For delivery in accordance with the provisions of any agreement
among the Customer, the Bank and a broker-dealer registered under the
Exchange Act and a member of 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 Customer;
(xii) For release of Financial Assets to designated brokers under
covered call options, provided, however, that such Financial Assets shall
be released only upon payment to the Bank of monies for the premium due and
a receipt for the Financial Assets which are to be held in escrow. Upon
exercise of the option, or at expiration, the Bank will receive from
brokers the Financial Assets previously deposited. The Bank will act
strictly in accordance with Instructions in the delivery of Financial
Assets to be held in escrow and will have no responsibility or liability
for any such Financial Assets which are not returned promptly when due
other than to make proper request for such return;
(xiii) For spot or forward foreign exchange transactions to facilitate
security trading, receipt of income from Financial Assets or related
transactions;
(xiv) For other proper corporate purposes as may be specified in
Instructions; and
(xv) Upon the termination of this Agreement as set forth in Section
14(k).
11A. PROVISIONS RELATING TO SECURITIES LENDING
(a) From time to time Customer shall designate in an Authorized
Instruction securities held by Bank in its Custody Account to be
loaned to specified borrowers ("Borrowers"). Such securities when
delivered to a borrower pursuant to authorized instructions shall be
termed the "Loaned Securities". This Section shall apply to and shall
be controlling solely with respect to such Loaned Securities and
lending services relating thereto. Loaned Securities which are
returned by the Borrower to Bank shall upon receipt thereof constitute
Assets held by Bank to which the provisions of this Agreement shall be
applicable unless otherwise provided herein.
(b) From time to time Customer will provide Bank with Authorized
Instructions regarding the delivery or return of Loaned Securities. In
this connection, Bank is authorized and directed, all in accordance
with such instructions to promptly:
(i) Deliver the Loaned Securities to the Borrower for Customer,
against receipt by Bank of collateral in respect of such Loaned Securities
(the "Collateral"), in the form and amount specified in
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such instructions. Bank shall promptly place the specified Collateral in a
Deposit or Custody Account and promptly notify Customer of such
transaction.
(ii) Receive Loaned Securities being returned by Borrower in the form
and amount specified in the Authorized Instructions. Upon satisfactory
delivery of such Loaned Securities, Bank shall debit the defined Collateral
from Customer's Deposit Account in accordance with such instructions and
pay or redeliver the specified Collateral to Borrower and promptly notify
Customer of such transaction.
(iii) Release to Borrower any excess Collateral or receive Collateral
from Borrower as specified in instructions issued by Customer. Bank shall
promptly transfer the specified Collateral to be released, or accept
delivery and transmit Collateral received to a Deposit Account, as the case
may be, and notify Customer of such transmittal or receipt. Bank shall
debit or credit the defined Collateral from the Deposit Account, as
appropriate.
(c) Where Bank has received Authorized Instructions from Customer
indicating that Customer has previously received Collateral covering
contemplated loans, Bank is authorized to deliver Loaned Securities "Free of
Payment" upon express direction from Customer with respect to designated Loaned
Securities. A list of authorized Borrowers who are eligible to receive such
Loaned Securities will be signed by any two Authorized Officers, with the title
of Chairman, Vice Chairman, President, Executive Vice President and Treasurer,
or by any one of these officers together with any Authorized Officer with the
title of Senior Managing Director or Senior Vice President, in accordance with
Section 11(c).
(d) Customer shall also provide Bank with written instructions regarding
Loaned Securities for which Customer has previously received Collateral and
their delivery "Free of Payment" to designated Borrowers in accordance with
paragraph c. hereof or the return of Loaned Securities. Bank shall be
authorized, in accordance with such written instructions to:
(1) Deliver the Loaned Securities, "Free of Payment" to the listed
Borrower, and
(2) Receive Loaned Securities specified in our instructions. Bank
shall promptly advise Customer of the completion of any such specified
transaction.
(e) Bank agrees to receive from the Borrower any income, dividends, and/or
distributions made by the issuer with respect to the Loaned Securities, and to
credit the Deposit Account or Custody Account when such amounts and properties
are received from the Borrower in accordance with the provisions of this
Agreement.
(f) Bank shall be responsible for any loss or damage which results from an
act of negligence or misfeasance or misconduct on the part of Bank relating to
the handling and servicing of such property in accordance with written
instructions. Bank is hereby designated to acquire possession of Collateral on
behalf of Customer and to act as bailee or financial intermediary (as defined in
the Uniform Commercial Code of the State of New York, as amended (the "UCC")),
as the case may be, in connection with Customer perfecting and maintaining
perfection of a security interest in such Collateral, pursuant to the provisions
of the UCC or other applicable laws, as amended from time to time. It is
understood that Bank shall not be responsible for obtaining or perfecting
Customer's security interest in the Collateral other than acting as bailee or
financial intermediary in accordance with the preceding sentence and the
instructions regarding delivery and receipt, and shall not be responsible to
advise Customer of the steps necessary to obtain or perfect such interest or for
effecting any statutory filing, unless mutually agreed upon at such time. Under
no circumstances and in no event shall Bank have or be charged with any
responsibility or liability for (i) the acceptability, creditworthiness or
continued creditworthiness of any Borrower, (ii) the adequacy or value of any
Collateral in connection with any loan of securities, (iii) the failure of the
Borrower to pay any income, dividend and/or distribution made by the issuer or
the Loaned Securities, or (iv) any act taken by it in accordance with the
direction of Customer, or omitted by it in
18
the absence of such direction.
12. STANDARD OF CARE; LIABILITIES.
(a) Bank shall be responsible for the performance of only such duties as
are set forth herein or expressly contained in Instructions which are consistent
with the provisions hereof as follows:
(i) Bank will use reasonable care and diligence with respect to its
obligations under this Agreement and the safekeeping of Assets. Bank agrees
to be liable and to indemnify and hold Customer harmless for any and all
liability for loss or damage to Customer with respect to any Assets, if
such liability, loss or damage results from any negligence, misfeasance or
misconduct on the part of Bank, its officers or employees, its branches or
its affiliates. Notwithstanding anything herein to the contrary, Bank shall
be liable to the Customer for any loss which shall occur as the result of
the failure of Bank or a Subcustodian to exercise reasonable care and
diligence with respect to the safekeeping of such Assets to the same extent
that the Bank would be liable to the Customer if the Bank were holding such
Assets in New York. Bank shall be liable for any burglary, robbery, holdup,
theft, or mysterious disappearance of Assets, including loss by damage or
destruction, at Bank or any Subcustodian. In the event of any loss to the
Customer by reason of the failure of the Bank or its Subcustodian to meet
its standard of care, the Bank shall be liable to Customer only to the
extent of the Customer's direct damages, and shall in no event be liable
for any special or consequential damages, even if Bank has been advised as
to the possibility of the same and regardless of the form of action. Bank
will promptly notify Customer upon the discovery of any such loss.
(ii) Bank shall not be responsible for the insolvency of any
Subcustodian which is not a branch or Affiliate of Bank unless such
appointment was made negligently or in bad faith. Bank shall not be
responsible for any act, omission, default or the solvency of any broker or
agent which it or a Subcustodian appoints unless such appointment was made
negligently or in bad faith.
(iii) (A) Customer shall indemnify and hold Bank and its directors,
officers, agents and employees (collectively the "Indemnitees") harmless
from and against any and all claims, liabilities, losses, damages, fines,
penalties, and expenses, including out-of-pocket and incidental expenses
and legal fees ("Losses") that may be imposed on, incurred by, or asserted
against, the Indemnitees or any of them for following any instructions or
other directions upon which Bank is authorized to rely pursuant to the
terms of this Agreement. (B) In addition to and not in limitation of the
preceding subparagraph, Customer shall also indemnify and hold the
Indemnitees and each of them harmless from and against any and all Losses
that may be imposed on, incurred by, or asserted against, the Indemnitees
or any of them in connection with or arising out of Bank's performance
under this Agreement, provided the Indemnitees have not acted with
negligence, misfeasance or willful misconduct. (C) In performing its
obligations hereunder, Bank may rely on the genuineness of any document
which it believes in good faith to have been validly executed.
(iv) Customer shall pay for and hold Bank harmless from any liability
or loss resulting from the imposition or assessment of any taxes or other
governmental charges, and any related expenses, with respect to income from
or Assets in the Accounts except to the extent that the Bank has acted
negligently in performing any obligations which the Bank has agreed to
assume (in addition to those stated in this Agreement) with respect to
taxes and such negligent act or omission by the Bank is the direct cause of
such imposition or assessment of such taxes, charges or expenses and
Customer would not have been liable for such imposition or assessment in
the absence of Bank's actions.
(v) Bank shall be entitled to rely, and may act, upon the advice of
counsel (who may be counsel for Customer) on all matters for any action
reasonably taken or omitted pursuant to such advice.
19
(vi) Bank represents and warrants that it currently maintains a
banker's blanket bond which provides standard fidelity and non-negligent
loss coverage with respect to the Assets which may be held by Bank or
Subcustodians pursuant to this Agreement. Bank will provide Customer with
confirmation of such coverage upon Customer's request. Bank need not
maintain any insurance for the benefit of Customer.
(vii) Without limiting the foregoing, Bank shall not be liable for any
loss which results from: 1) the general risk of investing, or 2) investing
or holding Assets in a particular country including, but not limited to,
nationalization, expropriation or other governmental actions; regulation of
the banking or securities industry; currency restrictions, devaluations or
fluctuations; market conditions which prevent the orderly execution of
securities transactions or affect the value of Assets, or (3) losses
resulting from malfunction, interruption of or error in the transmission of
information caused by any machines or system or interruption of
communication facilities, or abnormal operating conditions which are beyond
the control of Bank .
(viii) Neither party shall be liable to the other for any loss due to
forces beyond their control including, but not limited to strikes or work
stoppages (excluding those of Bank, its branches, and affiliates), acts of
war (whether declared or undeclared) or terrorism, insurrection,
revolution, nuclear fusion, fission or radiation, or acts of God.
(b) Consistent with and without limiting the first paragraph of this
Section 12, it is specifically acknowledged that Bank shall have no duty or
responsibility to:
(i) question Instructions or make any suggestions to Customer or an
Authorized Person regarding such Instructions;
(ii) supervise or make recommendations with respect to investments or
the retention of Financial Assets;
(iii) advise Customer or an Authorized Person regarding any default in
the payment of principal or income of any security other than as provided
in Section 5(c) hereof;
(iv) evaluate or report to Customer or an Authorized Person regarding
the financial condition of any broker, agent or other party to which
Financial Assets are delivered or payments are made pursuant hereto and
(v) review or reconcile trade confirmations received from brokers.
Customer or its Authorized Persons issuing Instructions shall bear any
responsibility to review such confirmations against Instructions issued to
and statements issued by Bank.
(c) Customer authorizes Bank to act hereunder notwithstanding that Bank or
any of its divisions or Affiliates may have a material interest in a
transaction, or circumstances are such that Bank may have a potential conflict
of duty or interest including the fact that Bank or any of its Affiliates may
provide brokerage services to other customers, act as financial advisor to the
issuer of Financial Assets, act as a lender to the issuer of Financial Assets,
act in the same transaction as agent for more than one customer, have a material
interest in the issue of Financial Assets, or earn profits from any of the
activities listed herein.
(d) In addition to the liability of Bank under this Section 12, Bank shall
be liable to Customer for all reasonable costs and expenses incurred by Customer
in connection with any claim by Customer against Bank arising from the
obligations of Bank hereunder, including, without limitation, all reasonable
attorneys' fees and expenses incurred by Customer in asserting any such claim,
and all expenses incurred by Customer in connection with any investigations,
lawsuits or proceedings relating to such claims, but only to the extent that
Customer
20
ultimately prevails in such claim;
(e) Customer shall not be liable for indemnification under this Section 12
unless Customer has been promptly notified in writing of the commencement of any
litigation or proceeding brought against a person in respect of which indemnity
may be sought under this Section 12. With respect to claims in litigation or
proceedings for which indemnity by a Customer may be sought and subject to
applicable law and the ruling of any court of competent jurisdiction, Customer
shall be entitled to participate in any such litigation or proceeding and, to
the extent Customer has satisfied its obligation to indemnify Bank with respect
to any such claim or has agreed and acknowledged such obligation, may assume the
defense of such litigation or proceeding with counsel of its choice at its own
expense. If Customer is not entitled to participate in such litigation under
applicable law or by a ruling of a court of competent jurisdiction, the person
seeking indemnification shall reasonably prosecute such litigation or
proceeding. A person seeking indemnity shall not consent to the entry of any
judgment or enter into any settlement in any such litigation or proceeding
without providing Customer with prior notice of any such settlement or judgment.
All persons shall submit written evidence to Customer with respect to any cost
or expense for which they are seeking indemnification in such form and detail as
Customer may reasonably request.
(f) Notwithstanding anything to the contrary contained herein, Customer
shall have, at its election upon reasonable notice to Bank, the right to
enforce, to the extent permitted by any applicable agreement and applicable law,
Bank's rights against any Subcustodian or securities system, or other person,
for loss, damage or expense caused by such Subcustodian, securities system or
other person which Bank may have as a consequence of any such loss, damage or
expense, if and to the extent that Customer has not been made whole for any such
loss or damage. If Bank makes Customer whole for any such loss or damage, Bank
shall retain the ability to enforce its rights directly against such
Subcustodian, securities system or other person. Upon Customer's election to
enforce any rights of the Bank under this Section, Customer shall reasonably
prosecute all actions and proceedings directly relating to the rights of the
Bank in respect of the loss, damage or expense incurred by Customer; provided
that, so long as Customer has acknowledged in writing its obligation to
indemnify the Bank under this Section with respect to such claim, Customer shall
retain the right to settle, compromise and/or terminate any action or proceeding
in respect of the loss, damage or expense incurred by Customer without Bank's
consent; and provided further, that if Customer has not made an acknowledgment
of its obligation to indemnify, Customer shall not settle, compromise or
terminate any such action or proceeding without the written consent of the Bank,
which consent shall not be unreasonably withheld or delayed. Bank agrees to
cooperate with Customer and take all actions reasonably requested by Customer in
connection with Customer's enforcement of any rights of Bank. Customer agrees to
reimburse Bank for all reasonable out of pocket expenses incurred by Bank on
behalf of Customer in connection with the fulfillment of its obligations under
this Section; provided, however, that such reimbursement shall not apply to
expenses occasioned by or resulting from the negligence, misfeasance or
misconduct of Bank.
13. FEES AND EXPENSES.
Customer shall pay or cause to be paid to Bank for its services hereunder
such amounts as may be agreed upon in writing, together with Bank's reasonable
out-of-pocket or incidental expenses, including, but not limited to, reasonable
legal fees. Bank shall have a lien on and is authorized to charge any Accounts
of Customer for any amount owing to Bank under any provision hereof.
14. MISCELLANEOUS.
(a) FOREIGN EXCHANGE TRANSACTIONS. To facilitate the administration of
Customer's trading and investment activity, when instructed by specific or
standing Instruction, Bank is authorized to enter into spot or forward foreign
exchange contracts with Customer or an Authorized Person for Customer and may
also provide foreign exchange through its subsidiaries, Affiliates or
Subcustodians. Instructions may be issued with respect to such contracts but
Bank may establish rules or limitations concerning any foreign exchange facility
made available. In all cases where Bank, its subsidiaries, Affiliates or
Subcustodians enter into a separate master foreign exchange contract with
Customer that covers foreign exchange transactions for the Accounts, the terms
and
21
conditions of that foreign exchange contract, and to the extent not
inconsistent, this Agreement, shall apply to such transactions.
(b) CERTIFICATION OF RESIDENCY, ETC. Customer certifies that it is a
resident of the United States and shall notify Bank of any changes in residency.
Bank may rely upon this certification or the certification of such other facts
as may be required to administer Bank's obligations hereunder. Customer shall
indemnify Bank against all losses, liability, claims or demands arising directly
or indirectly from any such certifications.
(c) ACCESS TO RECORDS. During the course of Bank's regular banking hours,
any duly authorized officer, employee or agent of Customer, any independent
accountants selected by Customer, any member of the Insurance Department, and
any representative or designee of other governmental agencies having
jurisdiction over Customer, shall be entitled to examine, on Bank's premises,
securities and records of all Assets held by Bank, its branches, or other
entities hereunder and its books and records pertaining to its actions under
this Agreement, but only upon furnishing Bank with reasonable notice of such
examination (or such notice as may be required by any regulatory authority)
signed by a duly authorized officer of Customer. Bank's books and records used
in connection with Customer's indirect participation in a depository or other
entities, to the extent that they relate to depository, custodial or other
services rendered to Customer by Bank, pursuant to this Agreement, shall at all
times during Bank's regular business hours be open to inspection by duly
authorized employees or agents of Customer, or governmental agencies having
jurisdiction over Customer, but only upon furnishing Bank with reasonable notice
to that effect as specified in the preceding sentence.
Upon receiving a request from Customer, Bank agrees that it will take such
steps as are within its power to enable any of the aforementioned officers,
accountants, employees, agents and members of Customer, the Insurance
Department, or other governmental agencies having jurisdiction over Customer, to
inspect and examine securities and other property of Customer and books and
records of such property not located on Bank's premises, which property and
records are held on Customer's behalf by its branches or other entities pursuant
to this Agreement.
(d) RECORDS, AFFIDAVITS AND REPORTS. With respect to the Assets held by
Bank hereunder, Bank agrees:
(i) To maintain records sufficient to verify information Customer is
required to report in Schedule D of the Annual Statement Blank of the
Insurance Department of the State of New York ("Insurance Department") as
amended from time to time, which records will consist of a list of such
securities showing a complete description of each issue, including the
number of shares and par value of securities so held at the end of such
month and such other information as may be required by such report or any
other report required by the Insurance Department;
(ii) To maintain records regarding transactions and related activities
sufficient to verify the accuracy of regular monthly and other reports and
income received on such securities and other property;
(iii) To maintain records sufficient to verify information relating to
cash held by Bank, including but not limited to (i) the purchase of foreign
currency contracts, (ii) the maintenance of foreign currency accounts on
behalf of Customer in the possession and custody of Bank, its branches or
other entities located outside the United States, and (iii) any reports
submitted to Customer relating to its cash;
(iv) To create, maintain and preserve all reports and records relating
to Bank's activities and obligations under this Agreement as provided for
in this Section in such manner as will meet the requirements of the 1940
act, including Section 31 thereof and Rule 31a-1 and 31a-2 thereunder and
the Exchange Act, including Section 17 thereof and Rules 17a-3 and 17a-4
thereunder, and to file a written undertaking with the Commission as will
meet the requirements of Rule 17a-4(i) to the effect that such records are
the property of Customer and will be surrended to the Customer promptly
upon request;
22
(v) To permit examination of such books and records as provided for in
this Section at any time or from time to time during business hours as
provided for in this Section by representatives or designees of the
Commission, and to promptly furnish to the Commission or its designees
true, correct, complete and current hard copy of any or all or any part of
such books and records;
(vi) To furnish Customer with the appropriate affidavit(s) such form
as may be submitted to Bank by Customer from time to time which is
acceptable to the Insurance Department or any other state of federal
governmental agency having jurisdiction over Customer, in order for the
Assets referred to in such affidavit(s) to be recognized as admitted assets
of Customer and in order for Customer to comply with any other requirements
of such Department or agencies;
(vii) To furnish Customer with any report obtained by Bank on a
securities depository's or Subcustodian's system of internal accounting
control; and to furnish the Customer with such reports on Bank's system of
internal accounting control as Customer may reasonably require;
(viii) To furnish all such other reports and information as shall
reasonably requested by Customer relating to all property held by Bank on
Customer's behalf pursuant to the terms of this Agreement;
(ix) That all such information, records, reports, and affidavits
maintained or held by Bank pursuant to this Section remain the property of
Customer and copies of all such information will be surrendered to the
Customer within a reasonable time after request therefor; and
The specific records, reports and affidavits required in 1 through 9 above shall
be set forth in a separate document which may be modified from time to time by
agreement of the parties to this Agreement
(e) GOVERNING LAW; SUCCESSORS AND ASSIGNS; IMMUNITY; CAPTIONS. THIS
AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED IN NEW YORK and shall not be assignable by
either party, but shall bind the successors in interest of Customer and Bank. To
the extent that in any jurisdiction Customer may now or hereafter be entitled to
claim, for itself or its assets, immunity from suit, execution, attachment
(before or after judgment) or other legal process, Customer irrevocably shall
not claim, and it hereby waives, such immunity. The captions given to the
sections and subsections of this Agreement are for convenience of reference only
and are not to be used to interpret this Agreement.
(f) ENTIRE AGREEMENT; APPLICABLE RIDERS. Customer represents that the
Assets deposited in the Accounts are (Check one):
X Investment Company assets subject to certain SEC rules
---
and regulations;
Other (specify)
---
This Agreement consists exclusively of this document together with
Schedules 1-A and 1-B, and the following Rider(s) [Check applicable
rider(s)]:
X PROXY VOTING
---
SPECIAL TERMS AND CONDITIONS
---
X TAIWAN RIDER
---
23
There are no other provisions hereof and this Agreement supersedes any
other agreements, whether written or oral, between the parties. Any amendment
hereto must be in writing, executed by both parties.
(g) SEVERABILITY. In the event that one or more provisions hereof are held
invalid, illegal or unenforceable in any respect on the basis of any particular
circumstances or in any jurisdiction, the validity, legality and enforceability
of such provision or provisions under other circumstances or in other
jurisdictions and of the remaining provisions shall not in any way be affected
or impaired.
(h) WAIVER. Except as otherwise provided herein, no failure or delay on the
part of either party in exercising any power or right hereunder operates as a
waiver, nor does any single or partial exercise of any power or right preclude
any other or further exercise, or the exercise of any other power or right. No
waiver by a party of any provision hereof, or waiver of any breach or default,
is effective unless in writing and signed by the party against whom the waiver
is to be enforced.
(i) REPRESENTATIONS AND WARRANTIES. (i) Customer hereby represents and
warrants to Bank that: (A) it has full authority and power to deposit and
control the Financial Assets and cash deposited in the Accounts; (B) it has all
necessary authority to use Bank as its custodian; (C) this Agreement constitutes
its legal, valid and binding obligation, enforceable in accordance with its
terms; (D) it shall have full authority and power to borrow moneys and enter
into foreign exchange transactions; and (E) it has not relied on any oral or
written representation made by Bank or any person on its behalf, and
acknowledges that this Agreement sets out to the fullest extent the duties of
Bank. (ii) Bank hereby represents and warrants to Customer that: (A) it has the
full power and authority to perform its obligations hereunder, (B) this
Agreement constitutes its legal, valid and binding obligation, enforceable in
accordance with its terms; and (C) that it has taken all necessary action to
authorize the execution and delivery hereof.
(j) NOTICES. All notices hereunder shall be delivered by hand, certified
mail or overnight mail and shall be considered effective when received. Any
notices or other communications which may be required hereunder are to be sent
to the parties at the following addresses or such other addresses as may
subsequently be given to the other party in writing: (a) Bank: JPMorgan Chase
Bank, 0 Xxxxx XxxxxXxxx Xxxxxx, Xxxxxxxx, X.X. 00000, Attention: Institutional
Trust Services, Investment Management Group; and (b) Customer: TIAA-CREF Mutual
Funds, 000 Xxxxx Xxxxxx, Xxx Xxxx, X.X. 00000, Attention: Treasurer.
(k) TERMINATION. This Agreement may be terminated by Customer or Bank by
giving sixty (60) days' written notice to the other, provided that such notice
to Bank shall specify the names of the persons to whom Bank shall deliver the
Assets in the Accounts. If notice of termination is given by Bank, Customer
shall, within sixty (60) days following receipt of the notice, deliver to Bank
Instructions specifying the names of the persons to whom Bank shall deliver the
Assets. In either case Bank shall deliver the Assets to the persons so
specified, after deducting any amounts which Bank determines in good faith to be
owed to it under Section 13. If within sixty (60) days following receipt of a
notice of termination by Bank, Bank does not receive Instructions from Customer
specifying the names of the persons to whom Bank shall deliver the Assets, Bank,
at its election, may deliver the Assets to a bank or trust company doing
business in the State of New York with whom Customer or one of its affiliates
maintains a custodial services relationship for Financial Assets to be held and
disposed of pursuant to the provisions hereof, or may continue to hold the
Assets until Instructions are provided to Bank.
(l) MONEY LAUNDERING. Customer warrants and undertakes to Bank for itself
and its agents that all Customer's customers are properly identified in
accordance with U.S. Money Laundering Regulations as in effect from time to
time.
(m) IMPUTATION OF CERTAIN INFORMATION. Bank shall not be held responsible
for and shall not be required to have regard to information held by any person
by imputation or information of which Bank is not aware by virtue of a "Chinese
Wall" arrangement. If Bank becomes aware of confidential information which in
good faith it feels inhibits it from effecting a transaction hereunder Bank may
refrain from effecting it.
24
(n) SHAREHOLDER COMMUNICATIONS. 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
expreslly objected to disclosure of this information. In order to comply with
the rule, Bank needs Customer to indicate whether Customer authorizes Bank to
provide Customer's name, address and share position to requesting companies whos
stock Customer owns. If Customer tells Bank "no", Bank will not provide this
information to requesting companies. If Customer tells Bank "yes" or does not
check either "yes" or "no" below, Bank is required by the rule to treat Customer
as consenting to disclosure of this information for all securities owned by
Customer or any Funds or accounts established by Customer. For Customer's
protection, the rule prohibits the requesting company from using Customer's name
and address for any purpose other than corporate communications. Please indicate
below whether Customer consents or objects by checking one of the alternatives
below.
YES [ ] Bank is authorized to release Customer's name,
address and share positions.
NO [ X ] Bank is not authorized to release Customer's name,
address and share positions.
(o) NO LIABILITY OF SHAREHOLDERS. This Agreement is executed by the
Trustees of Customer, not individually, but rather in their capacity as Trustees
under the Declaration of Trust made January 13, 1997, as amended. None of the
shareholders of Customer, Trustees, officers, employees or agents of Customer
shall be personally bound or liable under this Agreement, nor shall resort be
had to their private property for the satisfaction of any obligation or claim
hereunder but only to the property of Customer, and if the obligation or claim
relates to the property held by Customer for the benefit of one or more but
fewer than all the Funds, then only to the property held for the benefit of the
affected Fund(s).
15. DEFINITIONS.
As used herein, the following terms shall have the meaning hereinafter
stated:
(a) "Certificated Security" shall mean a security that is represented by a
certificate.
(b) "Custody Account" shall mean each Securities custody account on Bank's
records to which Financial Assets are or may be credited pursuant hereto.
(c) "Entitlement Holder" shall mean the person on the records of a
Securities Intermediary as the person having a Securities Entitlement against
the Securities Intermediary.
(d) "Financial Asset" shall mean, as the context requires, either the asset
itself or the means by which a person's claim to it is evidenced, including a
Certificated Security or Uncertificated Security, a security certificate, or a
Securities Entitlement. Financial Assets shall not include cash.
(e) "Institutional Investor" shall mean a major international commercial
bank, mutual fund, pension fund, insurance company, investment advisor, or
substantially similar institution, which, as a substantial part of its business
operations, purchases or sells securities and makes use of custodial services of
global custodians and financial institutions similar to Bank in the relevant
market.
(f) "Securities" shall mean stocks, bonds, rights, warrants and other
negotiable and non-negotiable paper whether issued as Certificated Securities or
Uncertificated Securities and commonly traded or dealt in on securities
exchanges or financial markets, and other obligations of an issuer, or shares,
participations and interests in an issuer recognized in an area in which it is
issued or dealt in as a medium for investment and any other property as shall be
acceptable to Bank for the Custody Account.
(g) "Securities Entitlement" shall mean the rights and property interest of
an Entitlement Holder with respect to a Financial Asset as set forth in Part 5
of the Uniform Commercial Code.
25
(h) "Securities Intermediary" shall mean Bank, a Subcustodian, a securities
depository, and any other financial institution which in the ordinary course of
business maintains custody accounts for others and acts in that capacity.
(i) "Uncertificated Security" shall mean a security that is not represented
by a certificate.
(j) "Uniform Commercial Code" shall mean Article 8 of the Uniform
Commercial Code of the State of New York, as the same may be amended from time
to time.
16. COMPLIANCE WITH 1940 ACT RULE 17F-5 ("RULE 17F-5").
(a) Customer's board of directors (or equivalent body) (hereinafter
"Board") hereby delegates to Bank, and Bank hereby accepts the delegation to it
of, the obligation to perform as Customer's "Foreign Custody Manager" (as that
term is defined in Rule 17f-5(a)(3)), including for the purpose of selecting
Eligible Foreign Custodians (as that term is defined in Rule 17f-5(a)(1), as the
same may be amended from time to time, or that have otherwise been made exempt
by SEC exemptive order, rule other appropriate SEC action) to hold Customer's
Foreign Assets and of evaluating the contractual arrangements with such Eligible
Foreign Custodians (as set forth in Rule 17f-5(c)(2)).
(b) In connection with the foregoing, Bank shall:
(i) provide written reports notifying Customer of the placement of
Foreign Assets with particular Eligible Foreign Custodians and of any
material change in the arrangements with such Eligible Foreign Custodians,
with such reports to be provided to Customer's Board at such times as the
Board deems reasonable and appropriate based on the circumstances of
Customer's foreign custody arrangements but until further notice from
Customer requesting a different schedule, such reports shall be provided
not less than quarterly in summary form, with a more detailed report
annually.
(ii) exercise such reasonable care, prudence and diligence in
performing as Customer's Foreign Custody Manager as a person having
responsibility for the safekeeping of Foreign Assets would exercise;
(iii) in selecting an Eligible Foreign Custodian, first have
determined that Foreign Assets placed and maintained in the safekeeping of
such Eligible Foreign Custodian shall be subject to reasonable care, after
having considered all factors relevant to the safekeeping of such Assets,
including, without limitation, those factors set forth in Rule
17f-5(c)(1)(i)-(iv);
(iv) determine that the written contract with the Eligible Foreign
Custodian requires that the Eligible Foreign Custodian will provide
reasonable care for Foreign Assets based on the standards applicable to
custodians in the relevant market as provided in Rule 17f-5(c)(2); and
(v) have established a system to monitor the continued appropriateness
of maintaining Foreign Assets with particular Eligible Foreign Custodians
and performance of the governing contractual arrangements; it being
understood, however, that in the event that Bank shall have determined that
the existing Eligible Foreign Custodian in a given country would no longer
afford Foreign Assets reasonable care and that no other Eligible Foreign
Custodian in that country would afford reasonable care, Bank shall promptly
so advise Customer and shall then act in accordance with the Instructions
of Customer with respect to the disposition of the affected Foreign Assets.
Subject to (b)(i)-(v) above, Bank is hereby authorized to place and maintain
Foreign Assets on behalf of Customer with Eligible Foreign Custodians pursuant
to a written contract deemed appropriate by Bank.
26
(c) Except as expressly provided herein and in Section 17 hereof, Customer
shall be solely responsible to assure that the maintenance of Foreign Assets
hereunder complies with the rules, regulations, interpretations and exemptive
orders promulgated by or under the authority of the SEC.
(d) Bank represents to Customer that it is a U.S. Bank as defined in Rule
17f-5(a)(7). Customer represents to Bank that: (1) the Assets being placed and
maintained in Bank's custody are subject to the 1940 Act; (2) its Board (or
other governing body) has determined that it is reasonable to rely on Bank to
perform as Customer's Foreign Custody Manager; and (3) its Board (or other
governing body) or its investment adviser shall have determined that Customer
may maintain Foreign Assets in each country in which Customer's Foreign Assets
shall be held hereunder and determined to accept the risks arising therefrom
(including, but not limited to, a country's financial infrastructure and
settlement practices, laws applicable to the safekeeping and recovery of Foreign
Assets held in custody, and the likelihood of nationalization, currency controls
and the like) (collectively ("Country Risk")). Nothing contained herein shall
require Bank to make any selection on behalf of Customer that would entail
consideration of Country Risk and, except as may be provided in (e) below, to
engage in any monitoring of Country Risk.
(e) Bank shall provide to Customer such information relating to Country
Risk as is specified in Appendix 1-A hereto. Customer hereby acknowledges that:
(i) such information is solely designed to inform Customer of market conditions
and procedures and is not intended as a recommendation to invest or not invest
in particular markets; and (ii) Bank has gathered the information from sources
it considers reliable, but that Bank shall have no responsibility for
inaccuracies or incomplete information.
17. COMPLIANCE WITH 1940 ACT RULE 17F-7 ("RULE 17F-7").
(a) Bank shall, for consideration by Customer, provide an analysis in
accordance with Rule 17f-7(a)(1)(i)(A) of the custody risks associated with
maintaining Customer's Foreign Assets (as defined in Rule 17f-5) with each
Eligible Securities Depository used by Bank as of the date hereof (or, in the
case of an Eligible Securities Depository not used by Bank as of the date
hereof, prior to the initial placement of Customer's Foreign Assets at such
Depository) and at which any Foreign Assets of Customer are held or are expected
to be held. The foregoing analysis will be provided to Customer at Bank's
Website. In connection with the foregoing, Customer shall notify Bank of any
Eligible Securities Depository at which it does not choose to have its Foreign
Assets held. Bank shall monitor the custody risks associated with maintaining
Customer's Foreign Assets at each such Eligible Securities Depository on a
continuing basis and shall promptly notify (which may be electronic) Customer or
its adviser of any material changes in such risks.
(b) Bank shall exercise reasonable care, prudence and diligence in
performing the requirements set forth in Section 17(a) above.
(c) Based on the information available to it in the exercise of diligence,
Bank shall determine the eligibility under Rule 17f-7 of each depository before
including it on Appendix 1-B hereto and shall promptly advise Customer if any
Eligible Securities Depository ceases to be eligible. (Eligible Securities
Depositories used by Bank as of the date hereof are set forth in Appendix 1-B
hereto, and as the same may be amended on notice to Customer from time to time.)
27
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first-above written.
TIAA-CREF Institutional Mutual Funds
for the benefit of the Funds listed on Schedule 1
By:/s/ XXXX X. XXXXX
-----------------------------------------------
Name: Xxxx X. Xxxxx
Title: Chairman
By:/s/ XXXXXXX X. XXXXXXX
-----------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President and Treasurer
JPMORGAN CHASE BANK
By:/s/ XXXXXXXX X. XXXXXXX
-----------------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Vice President
Date:
28
STATE OF )
: ss.
COUNTY OF )
On this day of , 2002, before me personally came
, to me known, who being by me duly sworn,
did depose and say that he/she resides in at ,
that he/she is of , the entity described in and
which executed the foregoing instrument; that he/she knows the seal of said
entity, that the seal affixed to said instrument is such seal, that it was so
affixed by order of said entity, and that he/she signed his/her name thereto by
like order.
Sworn to before me this
day of , 2002 .
Notary
STATE OF NEW YORK )
: ss.
COUNTY OF NEW YORK )
On this day of , 2002, before me personally
came , to me known, who being by me duly sworn, did
depose and say that he/she resides in at ; that he/she is
a Vice President of JPMORGAN CHASE BANK, the corporation described in and which
executed the foregoing instrument; that he/she knows the seal of said
corporation, that the seal affixed to said instrument is such corporate seal,
that it was so affixed by order of the Board of Directors of said corporation,
and that he/she signed his/her name thereto by like order.
Sworn to before me this
day of , 2002 .
Notary
STATE OF )
:ss.
COUNTY OF )
On this day of , 2002,
before me personally came , to me known, who being
by me duly sworn, did depose and say that he/she resides in
at , that he/she is of ,
the entity described in and which executed the foregoing instrument; that he/she
knows the seal of said entity, that the seal affixed to said instrument is such
seal, that it was so affixed by order of said entity, and that he/she signed
his/her name thereto by like order.
Sworn to before me this
day of , 2002 .
Notary
Schedule 1
TIAA-CREF Institutional Mutual Funds
Bond Fund
Equity Index Fund
Growth Equity Fund
International Equity Fund
Money Market Fund
Social Choice Equity Fund
2
JPMORGAN INVESTOR SERVICES APPENDIX 1-A
SECURITIES DEPOSITORIES
------------------------------------------------------------------------------------------------------------------------------
COUNTRY DEPOSITORY INSTRUMENTS
-----------------------------------------------------------------------------------------------------------------------------
ARGENTINA CVSA Equity, Corporate Debt, Government Debt
(Caja de Valores S.A.)
CRYL Government Debt
(Central de Registration y Liquidacion de
Instrumentos de Endeudamiento Publico)
AUSTRALIA Austraclear Limited Corporate Debt, Money Market, Government Debt and
Semi-Government Debt
CHESS Equity
(Clearing House Electronic Sub-register System)
AUSTRIA OeKB Equity, Corporate Debt, Government Debt
(Oesterreichische Kontrollbank AG)
BELGIUM CIK Equity, Corporate Debt
(Caisse Interprofessionnelle de Depots et de
Virements de Titres S.A.)
NBB Corporate Debt, Government Debt
(National Bank of Belgium)
BRAZIL CBLC Equity
(Companhia Brasileira de Liquidacao e Custodia)
CETIP Corporate Debt
(Central de Custodia e Liquidacao Financiera de
Titulos Privados)
SELIC Government Debt
(Sistema Especial de Liquidacao e Custodia)
BULGARIA BNB Government Debt
(Bulgaria National Bank)
CDAD Equity, Corporate Debt
(Central Depository A.D.)
CANADA CDS Equity, Corporate, Government Debt
(The Canadian Depository for Securities Limited)
CHILE DCV Equity, Corporate Debt, Government Debt
(Deposito Central de Valores S.A.)
CHINA, SHANGHAI CSDCC, Shanghai Branch Equity
(China Securities Depository and Clearing Corporation
Limited, Shanghai Branch)
CHINA, SHENZHEN CSDCC, Shenzhen Branch Equity
(China Securities Depository and Clearing Corporation
Ltd, Shenzhen Branch)
COLOMBIA DCV Government Debt
(Deposito Central de Valores)
------------------------------------------------------------------------------------------------------------------------------
COUNTRY DEPOSITORY INSTRUMENTS
-----------------------------------------------------------------------------------------------------------------------------
DECEVAL Equity, Corporate Debt, Government Debt
(Deposito Centralizado de Valores de Colombia S.A.)
CROATIA SDA Equity, Government Debt
(Central Depository Agency Inc. - Stredisnja
depozitarna agencija d.d.)
MOF Short-term debt issued by the Ministry of Finance.
(Ministry of Finance of the Republic of Croatia)
CNB Short-term debt issued by the National Bank of
(Croatian National Bank) Croatia.
CZECH REPUBLIC SCP Equity, Corporate Debt, Government Debt
(Stredisko cennych papiru - Ceska republica)
CNB Government Debt
(Czech National Bank)
DENMARK VP Equity, Corporate Debt, Government Debt
(Vaerdipapircentralen A/S)
EGYPT MCSD Equity, Corporate Debt
(Misr for Clearing, Settlement and Depository)
ESTONIA ECDS Equity, Corporate Debt, Government Debt
(Estonian Central Depository for Securities Limited -
Eesti Vaatpaberite Keskdepositoorium)
EUROMARKET DCC Euro-CDs
(The Depository and Clearing Centre)
CBL Internationally Traded Debt, Equity
(Clearstream Banking, S.A.)
Euroclear Internationally Traded Debt, Equity
FINLAND APK Equity, Corporate Debt, Government Debt
(Finnish Central Securities Depository Limited)
FRANCE Euroclear France Equity, Corporate Debt, Government Debt
GERMANY CBF Equity, Corporate Debt, Government Debt
(Clearstream Banking AG)
GREECE CSD Equity, Corporate Debt
(Central Securities Depository S.A.)
BoG Government Debt
(Bank of Greece)
HONG KONG HKSCC Equity
(Hong Kong Securities Clearing Company Limited)
CMU Corporate Debt, Government Debt
(Central Moneymarkets Unit)
HUNGARY KELER Equity, Corporate Debt, Government Debt
(Central Clearing House and Depository (Budapest)
Ltd. - Kozponti Elszamolohaz es Ertektar (Budapest)
Rt.)
ICELAND ISD Equity, Corporate Debt, Government Debt
(The Islandic Securities Depository)
2
------------------------------------------------------------------------------------------------------------------------------
COUNTRY DEPOSITORY INSTRUMENTS
-----------------------------------------------------------------------------------------------------------------------------
INDIA NSDL Equity, Corporate Debt, Government Debt
(National Securities Depository Limited)
CDSL Equity
(Central Depository Services (India) Limited)
RBI Government Debt
(Reserve Bank of India)
INDONESIA KSEI Equity, Corporate Debt
(PT Kustodian Sentral Efek Indonesia)
IRELAND CREST Equity, Corporate Debt
(CRESTCo Limited)
ISRAEL TECH Equity, Corporate Debt, Government Debt
(Tel Aviv Stock Exchange Clearing House Ltd.)
ITALY Monte Titoli S.p.A. Equity, Corporate Debt, Government Debt
IVORY COAST DC/BR Equity
(Le Depositaire Central / Banque de Reglement)
JAMAICA JCSD Equity, Corporate Debt, Government Debt
(Jamaica Central Securities Depository)
JAPAN JASDEC Equity, Convertible Debt
(Japan Securities Depository Center)
BoJ Registered Government Debt
(Bank of Japan)
KAZAHKSTAN CSD Equity
(Central Securities Depository CJSC)
KENYA CBCD Government Debt
(Central Bank Central Depository)
LATVIA LCD Equity, Corporate Debt, Government Debt
(Latvian Central Depository)
LEBANON Midclear X.X.X. Equity
(Custodian and Clearing Center of Financial
Instruments for Lebanon and the Middle East X.X.X.)
LITHUANIA CSDL Equity, Corporate Debt, Government Debt
(Central Securities Depository of Lithuania)
LUXEMBOURG CBL Equity
(Clearstream Banking S.A.)
MALAYSIA MCD Equity, Corporate Debt
(Malaysian Central Depository Sdn. Bhd.)
BNM Government Debt
(Bank Negara Malaysia)
MAURITIUS CDS Equity, Corporate Debt
(Central Depository and Settlement Company Limited)
MEXICO INDEVAL Equity, Corporate Debt, Government Debt
(S.D. INDEVAL S.A. de C.V.)
MOROCCO Maroclear Equity, Corporate Debt, Government Debt
3
------------------------------------------------------------------------------------------------------------------------------
COUNTRY DEPOSITORY INSTRUMENTS
-----------------------------------------------------------------------------------------------------------------------------
NETHERLANDS NECIGEF Equity, Corporate Debt, Government Debt
(Nederlands Centraal Insituut voor Giraal
Effectenverkeer B.V.)
NEW ZEALAND NZCSD Equity, Corporate Debt, Government Debt
(New Zealand Central Securities Depository)
NIGERIA CSCS Equity, Corporate Debt, Government Debt
(Central Securities Clearing System Limited)
NORWAY VPS Equity, Corporate Debt, Government Debt
(Verdipapirsentralen)
OMAN MDSRC Equity, Corporate Debt
(The Muscat Depository and Securities Registration
Company, S.A.O.C.)
PAKISTAN CDC Equity, Corporate Debt
(Central Depository Company of Pakistan Limited)
SBP Government Debt
(State Bank of Pakistan)
PERU CAVALI Equity, Corporate Debt, Government Debt
(CAVALI ICLV S.A.)
PHILIPPINES PCD Equity
(Philippine Central Depository, Inc.)
ROSS Government Debt
(Bangko Sentral ng Pilipinas / Register of Scripless
Securities)
POLAND NDS Equity, Long-Term Government Debt
CRT Short-Term Government Debt
(Central Registry of Treasury-Bills)
PORTUGAL INTERBOLSA Equity, Corporate Debt, Government Debt
(Sociedade Gestora de Sistemas de Liquidacao e de
Sistemas Centralizados de Valores Mobiliarios, S.A.)
ROMANIA SNCDD Equity
(National Company for Clearing, Settlement and
Depository for Securities)
BSE Equity
(Bucharest Stock Exchange)
RUSSIA VTB Equity, Corporate Debt, Government Debt (Ministry of
(Vneshtorgbank) Finance Bonds)
NDC Equity, Corporate Debt, Government Debt
(National Depository Centre)
SINGAPORE CDP Equity, Corporate Debt
(The Central Depository (Pte) Limited)
MAS Government Debt
(Monetary Authority of Singapore)
SLOVAK REPUBLIC SCP Equity, Corporate Debt, Government Debt
(Stredisko cennych papierov SR, a.s.)
4
------------------------------------------------------------------------------------------------------------------------------
COUNTRY DEPOSITORY INSTRUMENTS
-----------------------------------------------------------------------------------------------------------------------------
NBS Government Debt
(National Bank of Slovakia)
SLOVENIA KDD Equity, Corporate Debt, Government Debt
(Centralna klirinsko depotna xxxxxx x.x.)
SOUTH AFRICA CD Corporate Debt, Government Debt
(The Central Depository Limited)
STRATE Equity
(Share Transactions Totally Electronic)
SOUTH KOREA KSD Equity, Corporate Debt, Government Debt
(Korea Securities Depository)
SPAIN SCLV Equity, Corporate Debt
(Servicio de Compensacion y Liquidacion de Valores,
S.A.)
Bank of Spain Corporate Debt, Government Debt
SRI LANKA CDS Equity, Corporate Debt
(Central Depository System (Private) Limited)
SWEDEN VPC Equity, Corporate Debt, Government Debt
(Vardepapperscentralen AB)
SWITZERLAND SIS Equity, Corporate Debt, Government Debt
(SIS SegaInterSettle AG)
TAIWAN TSCD Equity, Government Debt
(Taiwan Securities Central Depository Co., Ltd.)
THAILAND TSD Equity, Corporate Debt, Government Debt
(Thailand Securities Depository Company Limited)
TUNISIA STICODEVAM Equity, Corporate Debt, Government Debt
(Societe Tunisienne Interprofessionnelle pour la
Compensation et le Depot des Valeurs Mobilieres)
TURKEY TAKASBANK Equity, Corporate Debt, Government Debt
(IMKB Takas ve Saklama Bankasi A.S.)
UNITED ARAB
EMIRATES DFM Equity, Corporate Debt, Government Debt
(Dubai Financial Market Clearing House)
UNITED KINGDOM CREST Equity, Corporate Debt, Government Debt
(CRESTCo Limited)
CMO Sterling & Euro CDs, Commercial Paper
(Central Moneymarkets Office)
UNITED STATES DTC Equity, Corporate Debt
(Depository Trust Company)
FED Government Debt, Mortgage Back Debt
(The Federal Reserve Book-Entry System)
VENEZUELA BCV Government Debt
(Banco Central de Venezuela)
5
------------------------------------------------------------------------------------------------------------------------------
COUNTRY DEPOSITORY INSTRUMENTS
-----------------------------------------------------------------------------------------------------------------------------
CVV Equity, Corporate Debt, Money Market
(Caja Venezolana de Valores, S.A.)
VIETNAM SCC Equity, Corporate Debt, Government Debt
(Securities Custody Centre)
ZAMBIA CSD Equity, Government Debt
(XxXX Central Shares Depository Limited)
BoZ Government Debt
(Bank of Zambia)
6
Appendix 1-B
Information Regarding Country Risk
1. To aid Customer in its determinations regarding Country Risk, Bank shall
furnish annually and upon the initial placing of Financial Assets and Cash into
a country the following information:
A. Opinions of local counsel concerning:
i. Whether applicable foreign law would restrict the access afforded
Customer's independent public accountants to books and records kept by an
eligible foreign custodian located in that country.
ii. Whether applicable foreign law would restrict the Customer's ability to
recover its Financial Assets and Cash in the event of the bankruptcy of an
Eligible Foreign Custodian located in that country.
iii. Whether applicable foreign law would restrict the Customer's ability to
recover Financial Assets that are lost while under the control of an
Eligible Foreign Custodian located in the country.
B. Written information concerning:
i. The foreseeability of expropriation, nationalization, freezes, or
confiscation of Customer's Financial Assets and Cash.
ii. Whether difficulties in converting Customer's cash and cash equivalents to
U.S. dollars are reasonably foreseeable.
C. A market report with respect to the following topics:
(i) securities regulatory environment, (ii) foreign ownership
restrictions, (iii) foreign exchange, (iv) securities settlement and
registration, (v) taxation, and (vi) depositories (including
depository evaluation), if any.
2. To aid Customer in monitoring Country Risk, Bank shall furnish to
Customer the following additional information:
Market flashes, including with respect to changes in the information in
market reports.
Schedule 1
(Name of Individual Funds)
