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EXHIBIT 99.9
CUSTODIAN CONTRACT
This Contract between__________________________, a business trust
organized and existing under the laws of Massachusetts, having its principal
place of business at ______________ hereinafter called the "Trust", and State
Street Bank and Trust Company, a Massachusetts trust company, having its
principal place of business at 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx,
00000, hereinafter called the "Custodian",
WITNESSETH:
WHEREAS, the Trust 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, the Trust intends to initially offer shares in series, the
_____________________ (such series, together with all other series
subsequently established by the Trust and made subject to this Contract
in accordance with paragraph 13, being herein referred to as the "Trust(s)";
NOW THEREFORE, in consideration of the mutual covenants and agreements
hereinafter contained, the parties hereto agree as follows:
1. Employment of Custodian and Property to be Held by It
The Trust hereby employs the Custodian as the custodian of its assets
pursuant to the provisions of the Declaration of Trust. The Trust agrees to
deliver to the Custodian all securities and cash owned by it, and all payments
of income, payments of principal or capital distributions received by it with
respect to all securities owned by the Trust from time to time, and the cash
consideration received by it for such new or treasury shares of capital stock,
$ par value, ("Shares") of the Trust as may be issued or sold from time
to time. The Custodian shall not be responsible for any property of the Trust
held or received by the Trust and not delivered to the Custodian. Upon receipt
of "Proper Instructions" (within the meaning of Section 2.16), the Custodian
shall from time to time employ one or more sub-custodians, but only in
accordance with an applicable vote by the Board of Trustees of the Trust, and
provided that the Custodian shall have no more or less responsibility or
liability to the Trust on account of any actions or omissions of any
sub-custodian so employed than any such sub-custodian has to the Custodian.
2. Duties of the Custodian with Respect to Property of the Trust Held By
the Custodian
2.1 Holding Securities. The Custodian shall hold and physically segregate
for the account of the Trust all non-cash property, including all
securities owned by the Trust, other than securities which are maintained
pursuant to Section 2.12 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, collectively referred to herein as "Securities System".
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2.2 Delivery of Securities. The Custodian shall release and deliver
securities owned by the Trust held by the Custodian or in a Securities
System account of the Custodian only upon receipt of Proper Instructions,
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 Trust and
receipt of payment therefore;
2) Upon the receipt of payment in connection with any
repurchase agreement related to such securities entered into by the
Trust;
3) In the case of a sale effected through a Securities System,
in accordance with the provisions of Section 2.12 hereof;
4) To the depository agent in connection with tender or other
similar offers for portfolio securities of the Trust;
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 the Custodian;
6) To the issuer thereof, or its agent, for transfer into the
name of the Trust or into the name of any nominee or nominees of
the Custodian or into the name or nominee name of any agent
appointed pursuant to Section 2.11 or into the name or nominee name
of any sub-custodian appointed pursuant to Article t; or for
exchange for a different number of bonds, certificates or other
evidence representing the same aggregate face amount or number of
units; provided that, in any such case, the new securities are to
be delivered to the Custodian;
7) To the broker selling the same for examination in accordance
with the "street delivery" custom;
8) For exchange or conversion pursuant to any plan of merger,
consolidation, recapitalization, reorganization or readjustment of
the securities of the issuer of such securities, or pursuant to
provisions for conversion contained in such securities, or
pursuant to any deposit agreement; provided that, in any such case,
the new securities and cash, if any, are to be delivered to the
Custodian;
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 the Custodian;
10) For delivery in connection with any loans of securities made
by the Trust, but only against receipt of adequate collateral as
agreed upon from time to time by the Custodian and the Trust, 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 Custodian's account in the book-entry system
authorized by the U.S. Department of the Treasury, the Custodian
will not be held liable or responsible for the delivery of
securities owned by the Trust prior to the receipt of such
collateral;
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11) For delivery as security in connection with any borrowings
by the Trust requiring a pledge of assets by the Trust, but only
against receipt of amounts borrowed;
12) For delivery in accordance with the provisions of any
agreement among the Trust, the Custodian 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 Trust;
13) For delivery in accordance with the provisions of any
agreement among the Trust, the Custodian, and a Futures Commission
Merchant registered under the Commodity Exchange Act, relating to
compliance with the rules of the Commodity Futures Trading
Commission and/or any Contract Market, or any similar organization
or organizations, regarding account deposits in connection with
transactions by the Trust;
14) Upon receipt of instructions from the transfer agent
("Transfer Agent") for the Trust, 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 Trust's
currently effective prospectus and statement of additional
information ("prospectus"), in satisfaction of requests by holders
of Shares for repurchase or redemption; and
15) Upon receipt of proper instructions, to release securities
to designated brokers under covered call options; provided however,
that such securities shall be released only upon payment to State
Street of monies for the premium due and a receipt for the
securities which are to be held in escrow. Upon exercise of the
option, or at expiration, to receive from brokers the securities
previously deposited. State Street will act strictly in accordance
with proper instructions in the delivery of securities to be held
in escrow and will have no responsibility or liability for any such
securities which are not returned promptly when due other than to
make proper request for such return.
16) For any other proper corporate purpose, but only upon
receipt of, in addition to Proper Instructions, a certified copy of
a resolution of the Board of Trustees or of the Executive
Committee signed by an officer of the Trust and certified by the
Secretary or an Assistant Secretary, specifying the securities to
be delivered, setting forth the purpose for which such delivery is
to be made, declaring such purposes to be proper corporate
purposes, and naming the person or persons to whom delivery of such
securities shall be made.
2.3 Registration of Securities. Securities held by the Custodian (other than
bearer securities) shall be registered in the name of the Trust or in the
name of any nominee of the Trust or of any nominee of the Custodian
which nominee shall be assigned exclusively to the Trust, unless the
Trust has authorized in writing the appointment of a nominee to be used
in common with other registered investment companies having the same
investment adviser as the Trust, or in the name or nominee name of any
agent appointed pursuant to Section 2.11 or in the
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name or nominee name of any sub-custodian appointed pursuant to Article
1. All securities accepted by the Custodian on behalf of the Trust under
the terms of this Contract shall be in "street name" or other good
delivery form.
2.4 Bank Accounts. The Custodian shall open and maintain a separate bank
account or accounts in the name of the Trust, subject only to draft or
order by the Custodian acting pursuant to the terms of this Contract, 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 Trust,
other than cash maintained by the Trust in a bank account established and
used in accordance with Rule 17f-3 under the Investment Company Act of
1940. Funds held by the Custodian for the Trust may be deposited by it to
its credit as Custodian in the Banking Department of the Custodian or in
such other banks or trust companies as it may in its discretion deem
necessary or desirable; provided, however, that every such bank or trust
company shall be qualified to act as a custodian under the Investment
Company Act of 1940 and that each such bank or trust company and the
funds to be deposited with each such bank or trust company shall be
approved by vote of a majority of the Board of Trustees of the Trust.
Such funds shall be deposited by the Custodian in its capacity as
Custodian and shall be withdrawable by the Custodian only in that
capacity.
2.5 Payments for Shares. (a) The Custodian shall receive from the
distributor for the Trust's Shares or from the Transfer Agent of the
Trust and deposit into the Trust's account such payments as are received
for Shares of the Trust issued or sold from time to time by the Trust.
The Custodian will provide timely notification to the Trust and the
Transfer Agent of any receipt by it of payments for Shares of the Trust.
(b) Upon receipt of proper instructions the Custodian will receive and
accept securities being tendered in exchange for Fund shares, providing
such securities are in negotiable form and have been identified as
acceptable securities by the Fund's Investment Manager.
2.6 Investment and Availability of Federal Funds. Upon mutual agreement
between the Trust and the Custodian, the Custodian shall, upon the
receipt of Proper Instructions,
1) invest in such instruments as may be set forth in such
instructions on the same day as received all federal funds received
after a time agreed upon between the Custodian and the Trust; and
2) make federal funds available to the Trust as of specified times
agreed upon from time to time by the Trust and the Custodian
in the amount of checks received in payment for Shares of the
Trust which are deposited into the Trust's account.
2.7 Collection of Income. The Custodian shall collect on a timely basis all
income and other payments with respect to registered securities held
hereunder to which the Trust 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 hearer securities if,
on the date of payment by the issuer, such securities are held by the
Custodian or agent thereof and shall credit such income, as collected,
to the Trust's custodian account. Without limiting the generality of the
foregoing, the Custodian shall detach and present for payment all coupons
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and other income items requiring presentation as and when they become due
and shall collect interest when due on securities held hereunder. Income
due the Trust on securities loaned pursuant to the provisions of Section
2.2 (10) shall be the responsibility of the Trust. The Custodian will
have no duty or responsibility in connection therewith, other than to
provide the Trust with such information or data as may be necessary to
assist the Trust in arranging for the timely delivery to the Custodian of
the income to which the Trust is properly entitled.
2.8 Payment of Trust Moneys. Upon receipt of Proper Instructions, which may
be continuing instructions when deemed appropriate by the parties, the
Custodian shall pay out moneys of the Trust in the following cases only:
1) Upon the purchase of securities, futures contracts or
options on futures contracts for the account of the Trust but only
(a) against the delivery of such securities, or evidence of title
to futures contracts or options on futures contracts, to the
Custodian (or any bank, banking firm or trust company doing
business in the United States or abroad which is qualified under
the Investment Company Act of 1940, as amended, to act as a
custodian and has been designated by the Custodian as its agent
for this purpose) registered in the name of the Trust or in the
name of a nominee of the Custodian referred to in Section 2.3
hereof or in proper form for transfer; (b) in the case of a
purchase effected through a Securities System, in accordance with
the conditions set forth in Section 2.12 hereof or (c) in the case
of repurchase agreements entered into between the Trust and the
Custodian, or another bank, or a broker-dealer which is a member of
NASD against delivery of the securities either in certificate
form or through an entry crediting the Custodian's account at the
Federal Reserve Bank with such securities or (ii) against delivery
of the receipt evidencing purchase by the Trust of securities
owned by the Custodian along with written evidence of the agreement
by the Custodian to repurchase such securities from the Trust;
2) In connection with conversion, exchange or surrender of
securities owned by the Trust as set forth in Section 2.2 hereof;
3) For the redemption or repurchase of Shares issued by the
Trust as set forth in Section 2.10 hereof;
4) For the payment of any expense or liability incurred by the
Trust, including but not limited to the following payments for the
account of the Trust: interest, taxes, management, accounting,
transfer agent and legal fees, and operating expenses of the Trust
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 declared pursuant to the
governing documents of the Trust;
6) For payment of the amount of dividends received in respect
of securities sold short;
7) For any other proper purpose, but only upon receipt of, in
addition to Proper Instructions, a certified copy of a resolution
of the Board of Trustees or of the Executive Committee of the Trust
signed by an officer of the Trust and certified by
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its Secretary or an Assistant Secretary, specifying the amount of
such payment, setting forth the purpose for which such payment is
to be made, declaring such purpose to be a proper purpose, and
naming the person or persons to whom such payment is to be made.
2.9 Liability for Payment in Advance of Receipt of Securities Purchased. In
any and every case where payment for purchase of securities for the
account of the Trust is made by the Custodian in advance of receipt of
the securities purchased in the absence of specific written instructions
from the Trust to so pay in advance, the Custodian shall be absolutely
liable to the Trust for such securities to the same extent as if the
securities had been received by the Custodian, except that in the case
of repurchase agreements entered into by the Trust with a bank which is a
member of the Federal Reserve System, the Custodian may transfer funds to
the account of such bank prior to the receipt of written evidence that
the securities subject to such repurchase agreement have been
transferred by book-entry into a segregated non-proprietary account of
the Custodian maintained with the Federal Reserve Bank of Boston or of
the safe-keeping receipt, provided that such securities have in fact been
so transferred by book-entry.
2.10 Payments for Repurchases or Redemptions of Shares of the Trust. From
such funds as may be available for the purpose but subject to the
limitations of the Declaration of Trust and any applicable votes of the
Directors of the Trust pursuant thereto, the Custodian 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 of the Trust, the Custodian
is authorized upon receipt of instructions from the Transfer Agent to
wire funds to or through a commercial bank designated by the redeeming
shareholders. In connection with the redemption or repurchase of Shares
of the Trust, the Custodian shall honor checks drawn on the Custodian by
a holder of Shares, which checks have been furnished by the Trust to the
holder of Shares, when presented to the Custodian in accordance with such
procedures and controls as are mutually agreed upon from time to time
between the Trust and the Custodian.
2.11 Appointment of Agents. The Custodian may at any time or times in its
discretion appoint (and may at any time remove) any other bank or trust
company which is itself qualified under the Investment Company Act of
1940, as amended, to act as a custodian, as its agent to carry out such
of the provisions of this Article 2 as the Custodian may from time to
time direct; provided, however, that the appointment of any agent shall
not relieve the Custodian of its responsibilities or liabilities
hereunder.
2.12 Deposit of Trust Assets in Securities Systems. The Custodian may deposit
and/or maintain securities owned by the Trust in a clearing agency
registered with the Securities and Exchange Commission under Section 17A
of the Securities Exchange Act of 1934, which acts as a securities
depository, or in the book-entry system authorized by the U.S. Department
of the Treasury and certain federal agencies, collectively referred to
herein as 'Securities System" in accordance with applicable Federal
Reserve Board and Securities and
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Exchange Commission rules and regulations, if any, and subject to the
following provisions:
1) The Custodian may keep securities of the Trust in a
Securities System provided that such securities are represented in
an account ("Account") of the Custodian in the Securities System
which shall not include any assets of the Custodian other than
assets held as a fiduciary, custodian or otherwise for customers;
2) The records of the Custodian with respect to securities of
the Trust which are maintained in a Securities System shall
identify by book-entry those securities belonging to the Trust;
3) The Custodian shall pay for securities purchased for the
account of the Trust upon (i) receipt of advice from the Securities
System that such securities have been transferred to the Account,
and (ii) the making of an entry on the records of the Custodian to
reflect such payment and transfer for the account of the Trust. The
Custodian shall transfer securities sold for the account of the
Trust upon (i) receipt of advice from the Securities System that
payment for such securities has been transferred to the Account, and
(ii) the making of an entry on the records of the Custodian to
reflect such transfer and payment for the account of the Trust.
Copies of all advices from the Securities System of transfers of
securities for the account of the Trust shall identify the Trust,
be maintained for the Trust by the Custodian and be provided to
the Trust at its request. Upon request, the Custodian shall furnish
the Trust confirmation of each transfer to or from the account of
the Trust in the form of a written advice or notice and shall
furnish to the Trust copies of daily transaction sheets reflecting
each day's transactions in the Securities System for the account of
the Trust.
4) The Custodian shall provide the Trust with any report
obtained by the Custodian on the Securities System's accounting
system, internal accounting control and procedures for
safeguarding securities deposited in the Securities System;
5) The Custodian shall have received the initial or annual
certificate, as the case may be, required by Article 9 hereof;
6) Anything to the contrary in this Contract notwithstanding,
the Custodian shall be liable to the Trust for any loss or damage
to the Trust resulting from use of the Securities System by reason
of any negligence, misfeasance or misconduct of the Custodian or
any of its agents or of any of its or their employees or from
failure of the Custodian or any such agent to enforce effectively
such rights as it may have against the Securities System; at the
election of the Trust, it shall be entitled to be subrogated to the
rights of the Custodian with respect to any claim against the
Securities System or any other person which the Custodian may have
as a consequence of any such loss or damage if and to the extent
that the Trust has not been made whole for any such loss or damage.
2.13 Segregated Account; The Custodian shall upon receipt of Proper
Instructions establish and maintain a segregated account or accounts for
and on behalf of the Trust, into which account or accounts may be
transferred cash and/or securities, including securities maintained in an
account by the Custodian pursuant to Section 2.12 hereof, (i) in
accordance with the
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provisions of any agreement among the Trust, the Custodian and a
broker-dealer registered under the Exchange Act and a member of the NASD
(or any futures commission merchant registered under the Commodity
Exchange Act), relating to compliance with the rules of The Options
Clearing Corporation and of any registered national securities exchange
(or the Commodity Futures Trading Commission or any registered contract
market), or of any similar organization or organizations, regarding
escrow or other arrangements in connection with transactions by the
Trust, (ii) for purposes of segregating cash or government securities in
connection with options purchased, sold or written by the Trust or
commodity futures contracts or options thereon purchased or sold by the
Trust, (iii) for the purposes of compliance by the Trust with the
procedures required by Investment Company Act Release No. 10666, or any
subsequent release or releases of the Securities and Exchange Commission
relating to the maintenance of segregated accounts by registered
investment companies and (iv) for other proper corporate purposes, but
only, in the case of clause (iv), upon receipt of, in addition to
Proper Instructions, a certified copy of a resolution of the Board of
Trustees or of the Executive Committee signed by an officer of the Trust
and certified by the Secretary or an Assistant Secretary, setting forth
the purpose or purposes of such segregated account and declaring such
purposes to be proper corporate purposes.
2.14 Ownership Certificates for Tax Purposes. The Custodian shall execute
ownership and other certificates and affidavits for all federal and state
tax purposes in connection with receipt of income or other payments with
respect to securities of the Trust held by it and in connection with
transfers of securities.
2.15 Proxies. The Custodian shall, with respect to the securities held
hereunder, cause to be promptly executed by the registered holder of such
securities, if the securities are registered otherwise than in the name
of the Trust or a nominee of the Trust, all proxies, without indication
of the manner in which such proxies are to be voted, and shall promptly
deliver to the Trust such proxies, all prosy soliciting materials and all
notices relating to such securities.
2.16 Communications Relating to Trust Portfolio Securities. The Custodian
shall transmit promptly to the Trust all written information (including,
without limitation, tendency of calls and maturities of securities and
expirations of rights in connection therewith and notices of exercise of
call and put options written by the Trust and the maturity of futures
contracts purchased or sold by the Trust) received by the Custodian from
issuers of the securities being held for the Trust. With respect to
tender or exchange offers, the Custodian shall transmit promptly to the
Trust all written information received by the Custodian from issuers of
the securities whose tender or exchange is sought and from the party (or
his agents) making the tender or exchange offer. If the Trust desires to
take action with respect to any tender offer, exchange offer or any other
similar transaction, the Trust shall notify the Custodian at least three
business days prior to the date on which the Custodian is to take such
action.
2.17 Proper Instructions. Proper Instructions as used throughout this Article
2 means a writing signed or initialed by one or more person or persons as
the Board of Directors shall have
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from time to time authorized. Each such writing shall set forth the
specific transactions action 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 the
Custodian reasonably believes them to have been given by a person
authorized to give such instructions with respect to the transaction
involved. The Trust shall cause all oral instructions to be confirmed in
writing. Upon receipt of a certificate of the Secretary or an Assistant
Secretary as to the authorization by the Board of Trustees of the Trust
accompanied by a detailed description of procedures approved by the
Board of Trustees, Proper Instructions may include communications
effected directly between electro-mechanical or electronic devices
provided that the Board of Trustees and the Custodian are satisfied that
such procedures afford adequate safeguards for the Trust's assets.
2.18 Actions Permitted without Express Authority. The Custodian may in its
discretion, without express authority from the Trust:
1) make payments to itself or others for minor expenses
of handling securities or other similar items relating to its
duties under this Contract, provided that all such payments shall
be accounted for to the Trust;
2) surrender securities in temporary form for securities in
definitive form;
3) endorse for collection, in the name of the Trust, 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 Trust except as otherwise directed by the Board of Trustees of
the Trust.
2.19 Evidence of Authority. The Custodian shall be protected in acting upon
any instructions, notice, request, consent, certificate or other
instrument or paper believed by it to be genuine and to have been
properly executed by or on behalf of the Trust. The Custodian may
receive and accept a certified copy of a vote of the Board of Trustees of
the Trust as conclusive evidence (a) of the authority of any person to act
in accordance with such vote or (b) of any determination or of any action
by the Board of Trustees pursuant to the Declaration of Trust as described
in such vote, and such vote may be considered as in full force and effect
until receipt by the Custodian of written notice to the contrary.
3 Duties of Custodian with Respect to the Books of Account
and Calculation of Net Asset Value and Net Income.
The Custodian shall cooperate with and supply necessary information to
the entity or entitles appointed by the Board of Directors of the Trust to
keep the books of account of the Trust and/or compute the net asset value per
share of the outstanding shares of the Trust or, if directed in writing to do
so by the Trust, shall itself keep such books of account and/or compute such
net asset value per share. If so directed, the Custodian shall also calculate
dally the net income of the Trust as described in the Trust's currently
effective prospectus and shall advise the Trust and the Transfer Agent daily
of the total amounts of such net income and, if instructed in writing by an
officer of the Trust to do so, shall advise the Transfer Agent periodically of
the division of such net income among
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its various components. The calculations of the net asset value per share and
the daily income of the Trust shall be made at the time or times described
from time to time in the Trust's currently effective prospectus.
4. Records
The Custodian shall create and maintain all records relating to its
activities and obligations under this Contract in such manner as will meet the
obligations of the Trust under the Investment Company Act of 1940, with
particular attention to Section 31 thereof and Rules 31a-1 and 31a-2
thereunder, applicable federal and state tax laws and any other law or
administrative rules or procedures which may be applicable to the Trust. All
such records shall be the property of the Trust and shall at all times during
the regular business hours of the Custodian be open for inspection by duly
authorized officers, employees or agents of the Trust and employees and agents
of the Securities and Exchange Commission. The Custodian shall, at the
Trust's request, supply the Trust with a tabulation of securities owned by the
Trust and held by the Custodian and shall, when requested to do so by the
Trust and for such compensation as shall be agreed upon between the Trust and
the Custodian, include certificate numbers in such tabulations.
5. Opinion of Trust's Independent Accountant
The Custodian shall take all reasonable action, as the Trust may from
time to time request, to obtain from year to year favorable opinions from the
Trust's independent accountants with respect to its activities hereunder in
connection with the preparation of the Trust's Form N-lA, and Form N-SAR or
other annual reports to the Securities and Exchange Commission and with
respect to any other requirements of such Commission.
6. Reports to Trust by Independent Public Accountants
The Custodian shall provide the Trust, at such times as the Trust 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 a Securities System, relating to
the services provided by the Custodian under this Contract; such reports,
which shall be of sufficient scope and in sufficient detail, as may reasonably
be required by the Trust, to provide reasonable assurance that any material
inadequacies would be disclosed by such examination, and, if there are no such
inadequacies, shall so state.
7. Compensation of Custodian
The Custodian shall be entitled to reasonable compensation for its
services and expenses as Custodian, as agreed upon from time to time between
the Trust and the Custodian.
8. Fidelity Insurance
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The Custodian will maintain fidelity insurance in the form of a standard
Bankers Blanket Bond.
9. Responsibility of Custodian
So long as and to the extent that it is in the exercise of reasonable
care, the Custodian shall not be responsible for the title, validity or
genuineness of any property or evidence of title thereto received by it or
delivered by it pursuant to this Contract and shall be held harmless in acting
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.
The Custodian shall be held to the exercise of reasonable care in carrying out
the provisions of this Contract, but shall be kept indemnified by and shall be
without liability to the Trust for any action taken or omitted by it in good
faith without negligence. It shall be entitled to rely on and may act upon
advice of counsel (who may be counsel for the Trust) on all matters, and shall
be without liability for any action reasonably taken or omitted pursuant to
such advice. Notwithstanding the foregoing, the responsibility of the
Custodian with respect to redemptions effected by check shall be in accordance
with a separate Agreement entered into between the Custodian and the Trust.
If the Trust requires the Custodian to take any action with respect to
securities, which action involves the payment of money or which action may, in
the opinion of the Custodian, result in the Custodian or its nominee assigned
to the Trust being liable for the payment of money or incurring liability of
some other form, the Trust, as a prerequisite to requiring the Custodian to
take such action, shall provide indemnity to the Custodian in an amount and
form satisfactory to it. If the Trust requires the Custodian to advance cash
or securities for any purpose or in the event that the Custodian or its
nominee shall incur or be assessed any taxes, charges, expenses, assessments,
claims or liabilities in connection with the performance of this Contract,
except such as may arise from its or its nominee's own negligent action,
negligent failure to act or willful misconduct, any property at any time held
for the account of the Trust shall be security therefor and should the Trust
fail to repay the Custodian promptly, the Custodian shall be entitled to
utilize available cash and to dispose of Trust assets to the extent necessary
to obtain reimbursement.
10. Effective Period, Termination and Amendment
This Contract 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 thirty (30) days after the date of such delivery or mailing;
provided, however that the Custodian shall not act under Section 2.12 hereof
in the absence of receipt of an initial certificate of the Secretary or an
Assistant Secretary that the Board of Trustees of the Trust have approved the
initial use of a particular Securities System and the receipt of an annual
certificate of the Secretary or an Assistant Secretary that the Board of
Trustees have reviewed the use by the Trust of such Securities System, as
required in each case by Rule 17f-4 under the Investment Company Act of 1940,
as amended; provided further, however, that the Trust shall not amend or
terminate this Contract in contravention of any applicable federal or state
regulations, or any provision of the Declaration of Trust, and further
provided, that the Trust may at any time by action of its Board of Trustees
(i) substitute another bank
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or trust company for the Custodian by giving notice as described above to the
Custodian, or (11) immediately terminate this Contract in the event of the
appointment of a conservator or receiver for the Custodian 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 of the Contract, the Trust shall pay to the Custodian such
compensation as may be due as of the date of such termination and shall
likewise reimburse the Custodian for its costs, expenses and disbursements.
11. Successor Custodian
If a successor custodian shall be appointed by the Board of Directors of
the Trust, the Custodian shall, upon termination, deliver to such successor
custodian at the office of the Custodian, duly endorsed and in the form for
transfer, all securities then held by it hereunder and shall transfer to an
account of the successor custodian all of the Trust's securities held in a
Securities System. If no such successor custodian shall be appointed, the
Custodian shall, in like manner, upon receipt of a certified copy of a vote of
the Board of Trustees of the Trust, deliver at the office of the Custodian and
transfer such securities, funds and other properties in accordance with such
vote. In the event that no written order designating a successor custodian or
certified copy of a vote of the Board of Directors shall have been delivered
to the Custodian on or before the date when such termination shall become
effective, then the Custodian shall have the right to deliver to a bank or
trust company, which is a "bank" as defined in the Investment Company Act of
1940, doing business in Boston, Massachusetts, 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 the Custodian and all instruments held by the
Custodian relative thereto and all other property held by it under this
Contract and to transfer to an account of such successor custodian all of the
Trust's securities held in any Securities System. Thereafter, such bank or
trust company shall be the successor of the Custodian under this Contract. In
the event that securities, funds and other properties remain in the possession
of the Custodian after the date of termination hereof owing to failure of the
Trust to procure the certified copy of vote referred to or of the Board of
Trustees to appoint a successor custodian, the Custodian shall be entitled to
fair compensation for its services during such period as the Custodian retains
possession of such securities, funds and other properties and the provisions
of this Contract relating to the duties and obligations of the Custodian shall
remain in full force and effect.
12. Interpretive and Additional Provisions
In connection with the operation of this Contract, the Custodian and the
Trust may from time to time agree on such provisions interpretive of or in
addition to the provisions of this Contract as may in their joint opinion be
consistent with the general tenor of this Contract. 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 Declaration of Trust of the Trust. No interpretive or additional
provisions made as provided in the preceding sentence shall be deemed to be an
amendment of this Contract.
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13. Additional Trusts
In the event that the Trust establishes one or more series of Shares in
addition to __________________________________________________ with respect
to which it desires to have the Custodian render services as custodian under
the terms hereof, it shall so notify the Custodian in writing, and if the
Custodian agrees in writing to provide such services, such series of Shares
shall become a Trust hereunder.
14. No Liability of Shareholders, Trustees, Officers, etc.
The Trustees have authorized the execution of this contract in their
capacity as Trustees and not individually and the Custodian acknowledges and
agrees that neither the shareholders, trustees, officers, employees and other
agents of the trust and the Funds shall personally be bound by or be liable
hereunder, nor shall any resort to their personal property be had for the
satisfaction of any obligation or claim hereunder.
15. Massachusetts Law to Apply
This Contract shall be construed and the provisions thereof interpreted
under and in accordance with laws of The Commonwealth of Massachusetts.
16. Prior Contracts
This Contract supersedes and terminates, as of the date hereof, all prior
contracts between the Trust and the Custodian relating to the custody of the
Trust's assets.
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IN WITNESS WHEREOF, each of the parties has caused this instrument to be
executed in its name and behalf by its duly authorized representative and its
seal to be hereunder affixed as of the ______ day of _________ , ________.
ATTEST
By:
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ATTEST STATE STREET BANK AND TRUST COMPANY
By:
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