EXHIBIT 8
CUSTODIAN CONTRACT
Between
FIDUCIARY MANAGEMENT ASSOCIATES
and
STATE STREET BANK AND TRUST COMPANY
TABLE OF CONTENTS
Page
1. Employment of Custodian and Property to be Held
By It................................................2
2. Duties of the Custodian with Respect to Property
of the Fund Held by the Custodian in the United
States...............................................3
2.1 Holding Securities..............................3
2.2 Delivery of Securities..........................3
2.3 Registration of Securities......................7
2.4 Bank Accounts...................................8
2.5 Investment and Availability of Federal Funds....9
2.6 Collection of Income............................9
2.7 Payment of Fund Moneys ........................10
2.8 Liability for Payment in Advance of Receipt
of Securities Purchased........................13
2.9 Appointment of Agents..........................13
2.10 Deposit of Securities in Securities System.....14
2.11 Segregated Account.............................17
2.12 Ownership Certificates for Tax Purposes........18
2.13 Proxies........................................18
2.14 Communications Relating to FundPortfolio
Securities.....................................18
2.15 Reports to Fund by Independent Public
Accountants....................................19
3. Duties of the Custodian with Respect to Property
of the Fund Held Outside of the United States.......20
3.1 Appointment of Foreign Sub-Custodians..........20
3.2 Assets to be Held..............................20
3.3 Foreign Securities Depositories................21
3.4 Segregation of Securities......................21
3.5 Agreements with Foreign Banking
Institutions...................................21
3.6 Access of Independent Accountants of the
Fund...........................................22
3.7 Reports by Custodian...........................22
3.8 Transactions in Foreign Custody Account........23
3.9 Liability of Foreign Sub-Custodians............24
3.10 Monitoring Responsibilities....................25
3.11 Branches of U.S. Banks.........................25
4. Payments for Repurchases or Redemptions and Sales
of Shares of the Fund...............................26
5. Proper Instructions.................................27
6. Actions Permitted Without Express Authority.........27
7. Evidence of Authority...............................28
8. Duties of Custodian with Respect to the Books of
Account and Calculations of Net Asset Value and
Net Income..........................................28
9. Records.............................................29
10. Opinion of Fund's Independent Accountant............30
11. Compensation of Custodian...........................30
12. Responsibility of Custodian.........................30
13. Effective Period, Termination and Amendment.........32
14. Successor Custodian.................................33
15. Interpretive and Additional Provisions..............35
16. Additional Funds....................................35
17. Massachusetts Law to Apply..........................35
18. Prior Contracts.....................................36
CUSTODIAN CONTRACT
This Contract between Fiduciary Management Associates, a
business trust organized and existing under the laws of
Massachusetts, having its principal place of business at
000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, hereinafter called the
"Fund", and State Street Bank and Trust Company, a Massachusetts
corporation, having its principal place of business at
000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, 00000, hereinafter
called the "Custodian",
WITNESSETH:
WHEREAS, the Fund is authorized to issue shares in
separate series, with each such series representing interests in a
separate portfolio of securities and other assets; and
WHEREAS, the Fund intends to initially offer shares in
three series, the Growth Portfolio, High-Yield Portfolio and the
Mortgage Securities Income Portfolio (such series together with
all other series subsequently established by the Fund and made
subject to this Contract in accordance with paragraph 16, being
herein referred to as the "'Fund(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 Fund hereby employs the Custodian as the custodian of
its assets, including securities it desires to be held in places
within the United States ("domestic securities") and securities it
desires to be held outside the United States ("foreign
securities") pursuant to the provisions of the Declaration of
Trust. The Fund 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 Fund from time to time, and the cash
consideration received by it for such new or treasury shares of
its beneficial interest, ("Shares") of the Fund as may be issued
or sold from time to time. The Custodian shall not be responsible
for any property of the Fund held or received by the Fund and not
delivered to the Custodian.
Upon receipt of "Proper Instructions" (within the meaning
of Article 5), the Custodian shall from time to time employ one or
more sub-custodians located in the United States, but only in
accordance with an applicable vote by the Trustees of the Fund,
and provided that the Custodian shall have no more or less
responsibility or liability to the Fund on account of any actions
or omissions of any sub-custodian so employed than any such
sub-custodian has to the Custodian. The Custodian may employ as
sub-custodians for the Fund's securities and other assets the
foreign banking institutions and foreign securities depositories
2
designated in Schedule "A" hereto but only in accordance with the
provisions of Article 3.
2. Duties of the Custodian with Respect to Property of the
Fund Held By the Custodian in the United States
2.1 Holding Securities. The Custodian shall hold and
physically segregate for the account of the Fund all non-
cash property, to be held by it in the United States,
including all domestic securities owned by the Fund,
other than securities which are maintained pursuant to
Section 2.10 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".
2.2 Delivery of Securities. The Custodian shall release and
deliver domestic securities owned by the Fund 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 Fund and receipt of payment therefor;
2) Upon the receipt of payment in connection with
any repurchase agreement related to such
securities entered into by the Fund;
3
3) In the case of a sale effected through a
Securities System, in accordance with the
provisions of Section 2.10 hereof;
4) To the depository agent in connection with
tender or other similar offers for portfolio
securities of the Fund;
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 Fund 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 2.9 or
into the name or nominee name of any sub-
custodian appointed pursuant to Article 1; or
for exchange for a different number of bonds,
certificates or other evidence representing the
same aggregate face amount or number of units;
provided that, in any such case, the new
securities are to be delivered to the
Custodian;
4
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 Fund, but only against
receipt of adequate collateral as agreed upon
from time to time by the Custodian and the
Fund, which may be in the form of cash or
5
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 Fund prior to the receipt of such
collateral;
11) For delivery as security in connection with any
borrowings by the Fund requiring a pledge of
assets by the Fund, but only against receipt of
amounts borrowed;
12) For delivery in accordance with the provisions
of any agreement among the Fund, 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
6
or other arrangements in connection with
transactions by the Fund;
13) For delivery in accordance with the provisions
of any agreement among the Fund, 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 Fund;
14) Upon receipt of instructions from the transfer
agent ("Transfer Agent") for the Fund, 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 Fund's currently effective
prospectus and statement of additional
information ("prospectus"), in satisfaction of
requests by holders of Shares for repurchase or
redemption; and
15) For any other proper corporate purpose, but
only upon receipt of, in addition to Proper
Instructions, a certified copy of a resolution
of the Trustees or of the Executive Committee
7
signed by an officer of the Fund 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. Domestic securities held by
the Custodian (other than bearer securities) shall be
registered in the name of the Fund or in the name of any
nominee of the Fund or of any nominee of the Custodian
which nominee shall be assigned exclusively to the Fund,
unless the Fund 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 Fund, or in the name or nominee name of any agent
appointed pursuant to Section 2.9 or in the name or
nominee name of any sub-custodian appointed pursuant to
Article 1. All securities accepted by the Custodian on
behalf of the Fund 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 United States in
the name of the Fund, subject only to draft or order by
8
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 Fund, other than cash
maintained by the Fund 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
Fund 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 Trustees of the
Fund. 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 Investment and Availability of Federal Funds. Upon
mutual agreement between the Fund 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
9
time agreed upon between the Custodian and the
Fund; and
2) make federal funds available to the Fund as of
specified times agreed upon from time to time
by the Fund and the Custodian in the amount of
checks received in payment for Shares of the
Fund which are deposited into the Fund's
account.
2.6 Collection of Income. The Custodian shall collect on a
timely basis all income and other payments with respect
to United States registered securities held hereunder to
which the Fund 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 United States bearer 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 Fund's custodian
account. Without limiting the generality of the
foregoing, the Custodian shall detach and present for
payment all coupons and other income items requiring
presentation as and when they become due and shall
collect interest when due on securities held hereunder.
Income due the Fund on United States securities loaned
pursuant to the provisions of Section 2.2 (10) shall be
10
the responsibility of the Fund. The Custodian will have
no duty or responsibility in connection therewith, other
than to provide the Fund with such information or data as
may be necessary to assist the Fund in arranging for the
timely delivery to the Custodian of the income to which
the Fund is properly entitled.
2.7 Payment of Fund 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 Fund in the following cases only:
1) Upon the purchase of domestic securities,
futures contracts or options on futures
contracts for the account of the Fund 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 Fund 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
11
a purchase effected through a Securities
System, in accordance with the conditions set
forth in Section 2.10 hereof or (c) in the case
of repurchase agreements entered into between
the Fund and the Custodian, or another bank, or
a broker-dealer which is a member of NASD,
(i) against delivery of the securities either
in certificate form or through an entry
crediting the Custodian's account at the
Federal Reserve Bank with such securities or
(ii) against delivery of the receipt evidencing
purchase by the Fund of securities owned by the
Custodian along with written evidence of the
agreement by the Custodian to repurchase such
securities from the Fund;
2) In connection with conversion, exchange or
surrender of securities owned by the Fund as
set forth in Section 2.2 hereof;
3) For the redemption or repurchase of Shares
issued by the Fund as set forth in Article 4
hereof;
4) For the payment of any expense or liability
incurred by the Fund, including but not limited
to the following payments for the account of
the Fund: interest, taxes, management,
12
accounting, transfer agent and legal fees and
operating expenses of the Fund whether or not
such expenses are to be in whole or part
capitalized or treated as deferred expenses;
5) For the payment of any dividends declared
pursuant to the governing documents of the
Fund;
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
Trustees or of the Executive Committee of the
Fund signed by an officer of the Fund and
certified by 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.
2.8 Liability for Payment in Advance of Receipt of Securities
Purchased. In any and every case where payment for
purchase of domestic securities for the account of the
Fund is made by the Custodian in advance of receipt of
13
the securities purchased in the absence of specific
written instructions from the Fund to so pay in advance,
the Custodian shall be absolutely liable to the Fund 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 Fund
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.
2.9 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.
14
2.10 Deposit of Securities in Securities Systems. The
Custodian may deposit and/or maintain domestic securities
owned by the Fund 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 Exchange
Commission rules and regulations, if any, and subject to
the following provisions:
1) The Custodian may keep domestic securities of
the Fund 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
domestic securities of the Fund which are
maintained in a Securities System shall
identify by book-entry those securities
belonging to the Fund;
15
3) The Custodian shall pay for domestic securities
purchased for the account of the Fund 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 Fund. The Custodian shall
transfer domestic securities sold for the
account of the Fund 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
Fund. Copies of all advices from the
Securities System of transfers of domestic
securities for the account of the Fund shall
identify the Fund, be maintained for the Fund
by the Custodian and be provided to the Fund at
its request. Upon request, the Custodian shall
furnish the Fund confirmation of each transfer
to or from the account of the Fund in the form
of a written advice or notice and shall furnish
to the Fund copies of daily transaction sheets
16
reflecting each day's transactions in the
Securities System for the account of the Fund.
4) The Custodian shall provide the Fund with any
report obtained by the Custodian on the
Securities System's accounting system, internal
accounting control and procedures for
safeguarding domestic 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 13 hereof;
6) Anything to the contrary in this Contract
notwithstanding, the Custodian shall be liable
to the Fund for any loss or damage to the Fund
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 Fund, 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
17
Custodian may have as a consequence of any such
loss or damage if and to the extent that the
Fund has not been made whole for any such loss
or damage.
2.11 Segregated Account. The Custodian shall upon receipt of
Proper Instructions establish and maintain a segregated
account or accounts for and on behalf of the Fund, into
which account or accounts may be transferred cash and/or
securities, including securities maintained in an account
by the Custodian pursuant to Section 2.10 hereof, (i) in
accordance with the provisions of any agreement among the
Fund, 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 Fund, (ii) for purposes of
segregating cash or government securities in connection
with options purchased, sold or written by the Fund or
commodity futures contracts or options thereon purchased
or sold by the Fund, (iii) or the purposes of compliance
18
by the Fund 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 Trustees or of the
Executive Committee signed by an officer of the Fund 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.
2.12 Ownership Certificates for Tax Purposes. The Custodian
shall execute ownership and other certificates and
affidavits for all federal and state tax purposes in
connection with receipt of income or other payments with
respect to domestic securities of the Fund held by it and
in connection with transfers of such securities.
2.13 Proxies. The Custodian shall, with respect to the
domestic securities held hereunder, cause to be promptly
executed by the registered holder of such securities, if
the securities are registered otherwise than in the name
of the Fund or a nominee of the Fund, all proxies,
without indication of the manner in which such proxies
19
are to be voted, and shall promptly deliver to the Fund
such proxies, all proxy soliciting materials and all
notices relating to such securities.
2.14 Communications Relating to Fund Portfolio Securities.
The Custodian shall transmit promptly to the Fund all
written information (including, without limitation,
pendency of calls and maturities of domestic securities
and expirations of rights in connection therewith and
notices of exercise of call and put options written by
the Fund and the maturity of futures contracts purchased
or sold by the Fund) received by the Custodian from
issuers of the domestic securities being held for the
Fund. With respect to tender or exchange offers, the
Custodian shall transmit promptly to the Fund all written
information received by the Custodian from issuers of the
domestic securities whose tender or exchange is sought
and from the party (or his agents) making the tender or
exchange offer. If the Fund desired to take action with
respect to any tender offer, exchange offer or any other
similar transaction, the Fund shall notify the Custodian
at least three business days prior to the date on which
the Custodian is to take such action.
2.15. Reports to Fund by Independent Public Accountants. The
Custodian shall provide the Fund, at such times as the
Fund may reasonably require, with reports by independent
20
public accountants on the accounting system, internal
accounting control and procedures for safeguarding
securities, futures contracts and options on futures
contracts, including domestic 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
Fund, to provide reasonable assurance that any material
inadequacies would be disclosed by such examination, and,
if there are no such inadequacies, shall so state.
3. Duties of the Custodian with Respect to Property of the
Fund Held Outside of the United States
3.1 Appointment of Foreign Sub-Custodians.
The Custodian is authorized and instructed to employ as
sub-custodians for the Fund's securities and other assets
maintained outside of the United States the foreign
banking institutions and foreign securities depositories
designated on Schedule A hereto ("foreign sub-
custodians"). Upon receipt of "Proper Instructions",
together with a certified resolution of the Fund's
Trustees, the Custodian and the Fund may agree to amend
Schedule A hereto from time to time to designated
additional foreign banking institutions and foreign
securities depositories to act as sub-custodians. Upon
21
receipt of Proper Instructions from the Fund the
Custodian shall cease the employment of any one or more
of such sub-custodians for maintaining custody of the
Fund's assets.
3.2 Assets to be Held. The Custodian shall limit the
securities and other assets maintained in the custody of
the foreign sub-custodians to: (a) "foreign securities",
as defined in paragraph (c)(1) of Rule 17f-5 under the
Investment Company Act of 1940, and (b) cash and cash
equivalents in such amounts as the Custodian or the Fund
may determine to reasonably necessary to effect the
Fund's foreign securities transactions.
3.3 Foreign Securities Depositories. Except as may otherwise
be agreed upon in writing by the Custodian and the Fund,
assets of the Fund shall be maintained in foreign
securities depositories only through arrangements
implemented by the foreign banking institutions serving
as sub-custodians pursuant to the terms hereof.
3.4 Segregation of Securities. The Custodian shall identify
on its books as belonging to the Fund, the foreign
securities of the Fund held by each foreign sub-
custodian. Each agreement pursuant to which the
Custodian employs a foreign banking institution shall
require that such Institution establish a custody account
for the Custodian on behalf of the Fund and physically
22
segregate in that account, securities and other assets of
the Fund, and, in the event that such institutions
deposits the Fund's securities in a foreign securities
depository, that it shall identify on its books as
belonging to the Custodian, as agent for the Fund, the
securities so deposited.
3.5 Agreements with Foreign Banking Institutions. Each
agreement with a foreign banking institution shall be
substantially in the form set forth in Exhibit 1 hereto
and shall provide that: (a) the Fund's assets will not be
subject to any right, charge, security interest, lien or
claim of any kind in favor of the foreign banking
institutions or its creditors, except a claim of payment
for their safe custody or administration; (b) beneficial
ownership for the Fund's assets will be freely
transferable without the payment of money or value other
than for custody or administration; (c) adequate records
will be maintained identifying the assets as belonging to
the Fund; (d) officers of or auditors employed by, or
other representatives of the Custodian, including to the
extent permitted under applicable law the independent
public accounts for the Fund, will be given access to the
books and records of the foreign banking institution
relating to its actions under its agreement with the
Custodian; and (e) assets of the Fund held by the foreign
23
sub-custodian will be subject only to the instructions of
the Custodian or its agents.
3.6 Access of Independent Accountants of the Fund. Upon
request of the Fund, the Custodian will use its best
efforts to arrange for the independent accountants of the
Fund to be afforded access to the books and records of
any foreign banking institution employed as a foreign
sub-custodian insofar as such books and records relate to
the performance of such foreign banking institutions
under its agreement with the Custodian.
3.7 Reports by Custodian. The Custodian will supply to the
Fund from time to time, as mutually agreed upon,
statements in respect of the securities and other assets
of the Fund held by foreign sub-custodians, including but
not limited to an identification of entities having
possession of the Fund's securities and other assets and
advices or notifications of any transfers of securities
to or from each custodial account maintained by a foreign
banking institution for the Custodian on behalf of the
Fund Indicating, as to securities acquired for the Fund,
the identity of the entity having physical possession of
such securities.
3.8 Transactions in Foreign Custody Account. (a) Upon
receipt of Proper Instructions, which may be continuing
instructions when deemed appropriate by the parties, the
24
Custodian shall make or cause its foreign sub-custodian
to transfer, exchange or deliver foreign securities owned
by the Fund, but except to the extent explicitly provided
herein only in one of the circumstances specified in
Section 2.2
(b) Upon receipt of Proper Instructions, which may be
continuing instructions when deemed appropriate by the
parties the Custodian shall pay out or cause its foreign
sub-custodians to pay out monies of the Fund, but except
to the extent explicitly provided herein only in one of
the circumstances specified in Section 2.8.
(c) Notwithstanding any provision of this Contract to the
contrary, settlement and payment for securities received
for the account of the Fund and delivery of securities
maintained for the account of the Fund may be effected in
accordance with the customary or established securities
trading or securities processing practices and procedures
in the jurisdiction or market in which the transaction
occurs, including, without limitation, delivering
securities to the purchaser thereof or to a dealer
therefor (or an agent for such purchaser or dealer)
against a receipt with the expectation of receiving later
payment for such securities from such purchaser or
dealer.
25
(d) Securities maintained in the custody of a foreign
sub-custodian may be maintained in the name of such
entity's nominee to the same extent as set forth in
Section 2.3 of this Contract and the Fund agrees to bold
any such nominee harmless from any liability as a holder
of record of such securities.
3.9 Liability of Foreign Sub-Custodians. Each agreement
pursuant to which the Custodian employs a foreign banking
institution as a foreign sub-custodian shall require the
institution to exercise reasonable care in the
performance of its duties and to indemnify, and hold
harmless, the Custodian and each Account from and against
any loss, damage, cost, expense, liability or claim
arising out of or in connection with the institution's
performance of such obligations. At the election of the
Fund, it shall be entitled to be subrogated to the rights
of the Custodian with respect to any claims against a
foreign banking institution as a consequence of any such
loss, damage, cost, expense, liability or claim if and to
the extent that the Fund has not been made whole for any
such loss, damage, cost, expense, liability or claim.
3.10 Monitoring Responsibilities. The Custodian shall furnish
annually to the Fund, during the month of June,
information concerning the foreign sub-custodians
employed by the Custodian. Such information shall be
26
similar in kind and, scope to that furnished to the Fund
in connection with the initial approval of this Contract.
In addition, the Custodian will promptly inform the Fund
In the event that the Custodian learns of a material
adverse change in the financial condition of a foreign
sub-custodian or is notified by a foreign banking
institution employed as a foreign sub-custodian that
there appears to be a substantial likelihood that its
shareholders' equity will decline below $200 million
(U.S. dollars or the equivalent thereof) or that is
shareholders' equity has declined below $200 million (in
each case computed in accordance with generally accepted
U.S. accounting principles).
3.11 Branches of U.S. Banks. Except as otherwise set forth in
this Contract, the provisions hereof shall not apply
where the custody of the Fund assets maintained in a
foreign branch of a banking institution which is a "bank"
as defined by Section 2(a) (5) of the Investment Company
Act of 1940 which meets the qualification set forth in
Section 26(a) Of Said Act. The appointment of any such
branch as a sub-custodian shall be governed by Article 1
of this Contract.
27
4. Payments for Repurchases or Redemptions and Sales of
Shares of the Fund
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 Trustees of the Fund 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 Fund, 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 Fund, the Custodian shall honor checks drawn on the
Custodian by a holder of Shares, which checks have been furnished
by the Fund to the holder of Shares, when presented to the
Custodian in accordance with such procedures and controls as are
mutually agreed upon from time to time between the Fund and the
Custodian. The Custodian shall receive from the distributor for
the Fund's Shares or from the Transfer Agent of the Fund and
deposit into the Fund's account such payments as are received for
Shares of the Fund issued or sold from time to time by the Fund.
The Custodian will provide timely notification to the Fund and the
Transfer Agent of any receipt by it of payments for Shares of the
Fund.
28
5. Proper Instructions
Proper Instructions as used herein means a writing signed
or initialled by one or more person or persons as the Trustees
shall have from time to time authorized. Each such writing shall
set forth the specific transaction or type of transaction
involved, including a specific statement of the purpose for which
such action is requested. Oral instructions will be considered
Proper Instructions if the Custodian reasonably believes them to
have been given by a person authorized to give such instructions
with respect to the transaction Involved. The Fund 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 Trustees of the Fund accompanied by a
detailed description of procedures approved by the Trustees,
Proper Instructions may include communications effected directly
between electro-mechanical or electronic devices provided that the
Trustees and the Custodian are satisfied that such procedures
afford adequate safeguards for the Fund's assets.
6. Actions Permitted without Express Authority
The Custodian may In its discretion, without express
authority from the Fund:
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 Fund;
29
2) surrender securities in temporary form for
securities in definitive form;
3) endorse for collection, in the name of the Fund,
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 Fund except as otherwise directed by the Trustees of the Fund.
7. 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 Fund. The Custodian may
receive and accept a certified copy of a vote of the Trustees of
the Fund 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 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.
8. 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 entities appointed by the Trustees of
the Fund to keep the books of account of the Fund and/or compute
30
the net asset value per share of the outstanding shares of the
Fund or, if directed in writing to do so by the Fund, shall itself
keep such books of account and/or compute such net asset value per
share. If so directed, the Custodian shall also calculate daily
the net income of the Fund as described in the Fund's currently
effective prospectus and shall advise the Fund and the Transfer
Agent daily of the total amounts of such net income and, if
instructed in writing by an officer of the Fund to do so, shall
advise the Transfer Agent periodically of the division of such net
income among its various components. The calculations of the net
asset value per share and the daily income of the Fund shall be
made at the time or times described from time to time in the
Fund's currently effective prospectus.
9. 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 Fund 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
Fund. All such records shall be the property of the Fund and
shall at all times during the regular business hours of the
Custodian be open for inspection by duly authorized officers,
employees or agents of the Fund and employees and agents of the
31
Securities and Exchange Commission. The Custodian shall, at the
Fund's request, supply the Fund with a tabulation of securities
owned by the Fund and held by the Custodian and shall, when
requested to do so by the Fund and for such compensation as shall
be agreed upon between the Fund and the Custodian, include
certificate numbers in such tabulations.
10. Opinion of Fund's Independent Accountant
The Custodian shall take all reasonable action, as the
Fund may from time to time request, to obtain from year to year
favorable opinions from the Fund's independent accountants with
respect to its activities hereunder in connection with the
preparation of the Fund's Form N-1A, and Form N-SAR or other
annual reports to the Securities and Exchange Commission and with
respect to any other requirements of such Commission.
11. 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 Fund and the Custodian.
12. 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
32
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 Fund 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 Fund) on all
matters, and shall be without liability for any action reasonably
taken or omitted pursuant to such advice. Notwithstanding the
foregoing, the responsibility by the Custodian with respect to
redemptions effected by check shall be in accordance with a
separate Agreement entered into between the Custodian and the
Fund.
The Custodian shall be liable for the acts or omissions
of a foreign banking institution appointed pursuant to the
provisions of Article 3 to the same extent asset forth in
Article 1 hereof with respect to sub-custodians located in the
United States and, regardless of whether assets are maintained in
the custody of a foreign banking institution, a foreign securities
depository or a branch of a U.S. bank as contemplated by
paragraph 3.11 hereof, the Custodian shall not be liable for any
loss, damage, cost, expense, liability or claim resulting from, or
caused by, the direction of or authorization by the Fund to
maintain custody or any securities or cash of the Fund in a
foreign country including, but not limited to, losses resulting
33
from nationalization, expropriation, currency restrictions, or
acts of war or terrorism. If the Fund 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
Fund being liable for the payment of money or incurring liability
of some other form, the Fund, 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 Fund 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 Fund shall be security therefor and should the Fund
fail to repay the Custodian promptly, the Custodian shall be
entitled to utilize available cash and to dispose of the Fund
assets to the extent necessary to obtain reimbursement.
13. 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
34
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 2.10 hereof in the absence of receipt of an initial
certificate of the Secretary or an Assistant Secretary that the
Trustees of the Fund 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 Trustees have
reviewed the use by the Fund 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 Fund
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 Fund may, at
any time by action of its Trustees (i) substitute another bank or
trust company for the Custodian by giving notice as described
above to the Custodian, or (ii) 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 Fund shall pay to
the Custodian such compensation as may be due as of the date of
35
such termination and shall likewise reimburse the Custodian for
its costs, expenses and disbursements.
14. Successor Custodian
If a successor custodian shall be appointed by the
Trustees of the Fund, 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 Fund'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 Trustees of the Fund, 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 Trustees
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
36
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 Fund'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 Fund to procure
the certified copy of vote referred to or of the 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.
15. Interpretive and Additional Provisions
In connection with the operation of this Contract, the
Custodian and the Fund 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
37
the Fund. No interpretive or additional provisions made as
provided, in the preceding sentence shall be deemed to be an
amendment of this Contract.
16. Additional Funds
In the event that the Fund establishes one or more series
of Shares in addition to the Growth Portfolio, the High-Yield
Portfolio and the Mortgage Securities Income Portfolio 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 Fund
hereunder.
17. 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.
18. Prior Contracts
This Contract supersedes and terminates, as of the date
hereof, all prior contracts between the Fund and the Custodian
relating to the custody of the Fund's assets.
38
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 13th day of November 1986.
ATTEST FIDUCIARY MANAGEMENT ASSOCIATES
/s/ By /s/
_________________________ ____________________________
Secretary Vice President
ATTEST STATE STREET BANK AND TRUST COMPANY
/s/ By /s/
_________________________ ____________________________
Assistant Secretary Vice President
39
Schedule A
The following foreign banking institutions and foreign
securities depositories have been approved by the Board of
Directors of Fiduciary Management Associates for use as
sub-custodians for the Fund's securities and other assets:
ANZ Banking Group Ltd.
Banque Bruxelles Xxxxxxx
Canada Trust Company
Kansallis-Osake Pankki
Credit Commercial De France
Berliner Handels Und Frankfurter Bank
Standard Chartered Bank
Credito Italiano
Sumitomo Trust & Banking Company Limited
Bank Mees & Hope, N.V. Algemene Bank Nederland
Christiania Bank OG Kreditkasse
DBS Trustee Ltd.
Skandinaviska Enskilda Banken
Union Bank of Switzerland
40
EXHIBIT 1
CUSTODIAN AGREEMENT
To:
Gentlemen:
The undersigned ("State Street") hereby requests that you
(the Bank) establish a custody account and a cash account for each
custodian/employee benefit plan identified in the Schedule
attached to this Agreement and each additional account which is
identified to this Agreement. Each such custody or cash account
as applicable will be referred to herein as the "Account" an will
be subject to the following terms and conditions:
1. The Bank shall hold as agent for State Street and
shall physically segregate in the Account such cash,
bullion, coin, stocks, shares, bonds, debentures,
notes and other securities and other property which
is delivered to the Bank for that State Street
Account (the "Property").
2. a. Without the prior approval of State Street it
will not deposit securities in any securities
depository or utilize a clearing agency,
incorporated or organized under the laws of a
country other than the United States, unless
such depository or clearing house operates the
central system for handling of securities or
equivalent book-entries in that country or
operates a transitional system for the central
handling of securities or equivalent book-
entries;
b. When securities held for an Account are
deposited in a securities depository or
clearing agency by the Bank, the Bank shall
identify on its books as belonging to State
Street as agent for such Account, the
securities so deposited.
3. The Bank represents that either:
a. It currently has stockholders' equity in excess
of $200 million (U.S. dollars or the equivalent
of U.S. dollars computed in accordance with
generally accepted U.S. accounting principles)
and will promptly inform State Street in the
event that there appears to be a substantial
41
likelihood that its stockholders' equity will
decline below $200 million, or in any event, at
such time as its stockholders' equity in fact
decline below $200 million; or
b. It is the subject of an exemptive order issued
by the United States Securities and Exchange
Commission, which such order permits State
Street to employ the Bank as a subcustodian,
notwithstanding the fact that the Bank's
stockholders' equity currently below $200
million or may in the future decline below $200
million due to currency fluctuation.
4. Upon the written instructions of State Street as
permitted by Paragraph 8, the Bank is authorized to
pay cash from the Account and to sell, assign,
transfer, deliver or exchange, or to purchase for
the Account, any and all stocks, shares, bonds,
debentures, notes and other securities
("Securities"), bullion, coin and any other
property, but only as provided in such written
instructions. The bank shall not be held liable for
any act or omission to act on instructions given on
purported to be given should there be any _____ in
such instructions.
5. Unless the Bank receives written instructions of
State Street to the contrary, the Bank is
authorized:
a. To promptly receive and collect all income and
principal with respect to the Property and to
credit cash receipts to the Account;
b. To promptly exchange securities where the
exchange is purely ministerial (including
without limitation, the exchange of temporary
securities for those in definitive form and the
exchange of warrants, or other documents of
entitlement to securities, for the securities
themselves);
c. To promptly surrender securities at maturity or
when called for redemption upon receiving
payment therefor;
d. Whenever notification of a rights entitlement
or a fractional interest resulting from a
rights issue, stock dividend or stock split is
received for the Account and such rights
42
entitlement or fractional interest bears an
expiration date, the Bank will endeavor to
obtain State Street Bank's instructions, but
should these not be received in time for the
Bank to take timely action, the Bank is
authorized to sell such rights entitlement or
fractional interest and to credit the Account;
e. To hold registered in the name of the nominee
of the Bank or its agents such Securities as
are ordinarily held in registered form;
f. To execute in State Street's name for the
Account, whenever the Bank deems it
appropriate, such ownership and other
certificates as may be required to obtain the
payment of income from the Property; and
g. To pay or cause to be paid, from the Account
any and all taxes and levies in the nature of
taxes imposed on such assets by any
governmental authority and shall use reasonable
efforts, to promptly reclaim any foreign
withholding tax relating to the Account.
6. If the Bank shall receive any proxies, notices,
reports or other communications relative to any of
the Securities of the Account in connection with
tender offers, reorganization, mergers,
consolidations, or similar events which may have an
impact upon the issuer thereof, the Bank shall
promptly transmit any such communication to State
Street Bank by means as will permit State Street
Bank to take timely action with respect thereto.
7. The Bank is authorized in its discretion to appoint
brokers and agents in connection with the Bank's
handling of transactions relating to the Property
provided that any such appointment shall not relieve
the Bank of any of its responsibilities or
liabilities hereunder.
8. Written instructions shall include (i) instructions
in writing signed by such persons as are designated
in writing by State Street; (ii) telex or tested
telex instructions of State Street; (iii) other
forms of instruction in computer readable form as
shall be customarily utilized for the transmission
of like information; and (iv) such other forms of
communication as from time to time shall be agreed
upon by State Street and the Bank.
43
9. The Bank shall supply periodic reports with respect
to the safe keeping of assets held by it under this
agreement. The content of such reports shall
include but not be limited to any transfer to or
from any account held by the Bank hereunder and such
other information as State Street may reasonably
request.
10. In addition to its obligations under Section 2B
hereof, the Bank shall maintain such other records
as may be necessary to identify the assets;
hereunder as belonging to each custodian/ employee
benefit plan identified in our Schedule attached to
this agreement and each additional account which is
identified to this agreement.
11. The Bank agrees that its books and records relating
to its action under this Agreement shall be opened
to the physical, on-premises inspection and audit at
reasonable times by officers of, auditors employed
by or other representatives of State Street
(including to the extent permitted under __________
law the independent public accountants for any
entity whose Property is being held hereunder' and
shall be retained for such period as shall be agreed
by State Street and the Bank.
12. The Bank shall be entitled to reasonable
compensation for its services and expenses as
custodian under this Agreement, as agreed upon from
time to time by the Bank and State Street.
13. The Bank shall exercise reasonable care in the
performance of its duties, as are set forth or
contemplated herein or contained in instructions
given to the Bank which are not contrary to this
Agreement, shall maintain adequate insurance and
agrees to indemnify and hold harmless, State Street
and each Account from and against loss, damage,
cost, expense, liability or claim arising out of or
in connection with the Bank's performance of its
obligations hereunder.
14. The bank agrees (i) the property hold hereunder is
not subject to any right, charge, security interest,
lien or claim of any kind in favor of the Bank or
any of its agents or its creditors except a claim of
payment for their safe custody and administration
and (ii) the beneficial ownership of the property
shall be freely transferable without the payment of
44
money or other value other than for safe custody or
administration.
15. The bank agrees to meet State Street Operating
Requirements (See Exhibit A).
16. This Agreement it may be terminated by the Bank or
State Street by 60 days' written notice to the
other, sent by registered mail or express courier.
The Bank, upon the date this Agreement terminate
pursuant to notice which has been given in a timely
fashion, shall deliver the Property to the
beneficial owner unless the Bank has received from
the beneficial owner 60 days, prior to the date on
which this Agreement is to be terminated written
instructions of State Street specifying the name(s)
of the person(s) to whom the Property shall be
delivered.
17. The Bank and State Street shall each use its best
efforts to maintain the confidentiality of the
Property in each Account, subject, however, to the
provisions of any laws requiring the disclosure of
the Property.
18. Unless otherwise specified in this Agreement, all
notices with respect to matters contemplated by this
Agreement shall be deemed duly given when received
in writing or by confirmed telex by the Bank or
State Street at their respective addresses set forth
below or at such other address as be specified in
each case in a notice similarly given:
To State Street Master Trust Division, Global Custody
STATE STREET BANK AND TRUST COMPANY
X.X. Xxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000
X.X.X.
To the Bank
19. This Agreement shall be governed by and construed in
accordance with the laws of ________ except to the
extent that such laws are preempted by the laws of
the United States of America.
45
Please acknowledge your agreement to the foregoing by
executing a copy of this letter.
Very truly yours,
STATE STREET BANK AND TRUST COMPANY
By:____________________________
Vice President
Date:__________________________
Agreed to by:
By:_________________________
Date:_______________________
46
00250061.AI4
