EX. 99 (G)(2)(I)
MASTER CUSTODIAN AGREEMENT
This Agreement is made as of August 10, 2009 by and among each management
investment company identified on Appendix A hereto (each such investment company
and each management investment company made subject to this Agreement in
accordance with Section 18.5 below, shall hereinafter be referred to as (the
"FUND"), and STATE STREET BANK and TRUST COMPANY, a Massachusetts trust company
(the "CUSTODIAN").
WITNESSETH:
WHEREAS, each Fund may or may not be authorized to issue shares of common
stock or shares of beneficial interest in separate series ("SHARES"), with each
such series representing interests in a separate portfolio of securities and
other assets;
WHEREAS, each Fund so authorized intends that this Agreement be applicable
to each of its series set forth on Appendix A hereto (such series together with
all other series subsequently established by the Fund and made subject to this
Agreement in accordance with Section 18.6 below, shall hereinafter be referred
to as the "PORTFOLIO(S)").
WHEREAS, each Fund not so authorized intends that this Agreement be
applicable to it and all references hereinafter to one or more "Portfolio(s)"
shall be deemed to refer to such Fund(s); and
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter contained, the parties hereto agree as follows:
SECTION 1. EMPLOYMENT OF CUSTODIAN AND PROPERTY TO BE HELD BY IT.
Each Fund hereby employs the Custodian as a custodian of assets of the
Portfolios, including securities which the Fund, on behalf of the applicable
Portfolio, desires to be held in places within the United States ("DOMESTIC
SECURITIES") and securities it desires to be held outside the United States
("FOREIGN SECURITIES"). Each Fund, on behalf of its Portfolio(s), agrees to
deliver to the Custodian all securities and cash of the Portfolios, and all
payments of income, payments of principal or capital distributions received by
it with respect to all securities owned by the Portfolio(s) from time to time,
and the cash consideration received by it for such Shares as may be issued or
sold from time to time. The Custodian shall not be responsible for any property
of a Portfolio which is not received by it or which is delivered out in
accordance with Proper Instructions (as such term is defined in Section 7
hereof) including, without limitation, Portfolio property (i) held by brokers,
private bankers or other entities on behalf of the Portfolio (each a "LOCAL
AGENT"), (ii) held by Special Sub-Custodians (as such term is defined in Section
5 hereof), (iii) held by entities which have advanced monies to or on behalf of
the Portfolio and which have received Portfolio property as security for such
advance(s) (each a "PLEDGEE"), or (iv) delivered or otherwise removed from the
custody of the Custodian (a) in connection with any Free Trade (as such term is
defined in Sections 2.2(14) and 2.6(7) hereof) or (b) pursuant to Special
Instructions (as such term is defined in Section 7 hereof). With respect to
uncertificated shares (the "UNDERLYING SHARES") of registered "investment
companies" (as defined in Section 3(a)(1) of the Investment Company Act of 1940,
as amended from time to time (the "1940
ACT")), whether in the same "group of investment companies" (as defined in
Section 12(d)(1)(G)(ii) of the 0000 Xxx) or otherwise, including pursuant to
Section 12(d)(1)(F) of the 1940 Act (hereinafter sometimes referred to as the
"UNDERLYING PORTFOLIOS") the holding of confirmation statements that identify
the shares as being recorded in the Custodian's name on behalf of the Portfolios
will be deemed custody for purposes hereof.
Upon receipt of Proper Instructions, the Custodian shall on behalf of the
applicable Portfolio(s) 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 Board of Trustees or the Board of Directors of the Fund (as appropriate, and
in each case, the "BOARD") on behalf of the applicable Portfolio(s), and
provided that the Custodian shall have no more or less responsibility or
liability to any 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 place and maintain each Fund's foreign securities with foreign
banking institution sub-custodians employed by the Custodian and/or foreign
securities depositories, all as designated in Schedules A and B hereto, but only
in accordance with the applicable provisions of Sections 3 and 4 hereof.
SECTION 2. DUTIES OF THE CUSTODIAN WITH RESPECT TO PROPERTY OF THE PORTFOLIOS TO
BE HELD IN THE UNITED STATES.
SECTION 2.1 HOLDING SECURITIES. The Custodian shall hold and physically
segregate for the account of each Portfolio all non-cash property, to be held by
it in the United States, including all domestic securities owned by such
Portfolio other than (a) securities which are maintained pursuant to Section 2.8
in a clearing agency which acts as a securities depository or in a book-entry
system authorized by the U.S. Department of the Treasury (each, a "U.S.
SECURITIES SYSTEM") and (b) Underlying Shares owned by each Fund which are
maintained pursuant to Section 2.10 hereof in an account with State Street Bank
and Trust Company or such other entity which may from time to time act as a
transfer agent for the Underlying Portfolios and with respect to which the
Custodian is provided with Proper Instructions (the "UNDERLYING TRANSFER
AGENT").
SECTION 2.2 DELIVERY OF SECURITIES. The Custodian shall release and deliver
domestic securities owned by a Portfolio held by the Custodian, in a U.S.
Securities System account of the Custodian or in an account at the Underlying
Transfer Agent, only upon receipt of Proper Instructions on behalf of the
applicable Portfolio, which may be continuing instructions when deemed
appropriate by the parties, and only in the following cases:
1) Upon sale of such securities for the account of the Portfolio and
receipt of payment therefor;
2) Upon the receipt of payment in connection with any repurchase
agreement related to such securities entered into by the Portfolio;
3) In the case of a sale effected through a U.S. Securities System, in
accordance with the provisions of Section 2.8 hereof;
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4) To the depository agent in connection with tender or other similar
offers for securities of the Portfolio;
5) To the issuer thereof or its agent when such securities are called,
redeemed, retired or otherwise become payable; provided that, in any
such case, the cash or other consideration is to be delivered to the
Custodian;
6) To the issuer thereof, or its agent, for transfer into the name of the
Portfolio 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 2.7 or into the name or nominee name of any sub-custodian
appointed pursuant to Section 1; or for exchange for a different
number of bonds, certificates or other evidence representing the same
aggregate face amount or number of units; provided that, in any such
case, the new securities are to be delivered to the Custodian;
7) Upon the sale of such securities for the account of the Portfolio, to
the broker or its clearing agent, against a receipt, for examination
in accordance with "street delivery" custom; provided that in any such
case, the Custodian shall have no responsibility or liability for any
loss arising from the delivery of such securities prior to receiving
payment for such securities except as may arise from the Custodian's
own negligence or willful misconduct;
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
Portfolio (a) against receipt of collateral as agreed from time to
time by the Fund on behalf of the Portfolio, 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 Portfolio
prior to the receipt of such collateral or (b) to the lending agent,
or the lending agent's custodian, in accordance with written Proper
Instructions (which may not provide for the receipt by the Custodian
of collateral therefor) agreed upon from time to time by the Custodian
and the Fund;
11) For delivery as security in connection with any borrowing by a Fund on
behalf of a Portfolio requiring a pledge of assets by the Fund on
behalf of such Portfolio;
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12) For delivery in accordance with the provisions of any agreement among
the Fund on behalf of the Portfolio, the Custodian and a broker-dealer
registered under the Securities Exchange Act of 1934 (the "EXCHANGE
ACT") and a member of the Financial Industry Regulatory Authority,
Inc. ("FINRA", formerly known as The National Association of
Securities Dealers, Inc.), 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 Fund on behalf of a Portfolio;
13) For delivery in accordance with the provisions of any agreement among
a Fund on behalf of the Portfolio, 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 (the "CFTC") and/or any contract market, or any similar
organization or organizations, regarding account deposits in
connection with transactions by the Fund on behalf of a Portfolio;
14) Upon the sale or other delivery of such investments (including,
without limitation, to one or more (a) Special Sub-Custodians or (b)
additional custodians appointed by the Fund, and communicated to the
Custodian from time to time via a writing duly executed by an
authorized officer of the Fund, for the purpose of engaging in
repurchase agreement transactions(s), each a "REPO CUSTODIAN"), and
prior to receipt of payment therefor, as set forth in written Proper
Instructions (such delivery in advance of payment, along with payment
in advance of delivery made in accordance with Section 2.6(7), as
applicable, shall each be referred to herein as a "FREE TRADE"),
provided that such Proper Instructions shall set forth (a) the
securities of the Portfolio to be delivered and (b) the person(s) to
whom delivery of such securities shall be made;
15) Upon receipt of instructions from the Fund's transfer agent (the
"TRANSFER AGENT") for delivery to such Transfer Agent or to the
holders of Shares in connection with distributions in kind, as may be
described from time to time in the currently effective prospectus and
statement of additional information of the Fund related to the
Portfolio (the "PROSPECTUS"), in satisfaction of requests by holders
of Shares for repurchase or redemption;
16) In the case of a sale processed through the Underlying Transfer Agent
of Underlying Shares, in accordance with Section 2.10 hereof;
17) For delivery as initial or variation margin in connection with futures
or options on futures contracts entered into by the Fund on behalf of
the Portfolio; and
18) For any other purpose, but only upon receipt of Proper Instructions
from the Fund on behalf of the applicable Portfolio specifying (a) the
securities of the Portfolio to be
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delivered and (b) the person or persons to whom delivery of such
securities shall be made.
SECTION 2.3 REGISTRATION OF SECURITIES. Domestic securities held by the
Custodian (other than bearer securities) shall be registered in the name of the
Portfolio or in the name of any nominee of a Fund on behalf of the Portfolio or
of any nominee of the Custodian which nominee shall be assigned exclusively to
the Portfolio, unless the Fund has authorized in writing the appointment of a
nominee to be used in common with other registered management investment
companies having the same investment adviser as the Portfolio, or in the name or
nominee name of any agent appointed pursuant to Section 2.7 or in the name or
nominee name of any sub-custodian appointed pursuant to Section 1. All
securities accepted by the Custodian on behalf of the Portfolio under the terms
of this Agreement shall be in "street name" or other good delivery form. If,
however, a Fund directs the Custodian to maintain securities in "street name",
the Custodian shall utilize its best efforts only to timely collect income due
the Fund on such securities and to notify the Fund on a best efforts basis only
of relevant corporate actions including, without limitation, pendency of calls,
maturities, tender or exchange offers.
SECTION 2.4 BANK ACCOUNTS. The Custodian shall open and maintain a separate
bank account or accounts in the United States in the name of each Portfolio of
each Fund, subject only to draft or order by the Custodian acting pursuant to
the terms of this Agreement, and shall hold in such account or accounts, subject
to the provisions hereof, all cash received by it from or for the account of the
Portfolio, other than cash maintained by the Portfolio in a bank account
established and used in accordance with Rule 17f-3 under the 1940 Act. Funds
held by the Custodian for a Portfolio 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 1940 Act and that each such bank or trust company
and the funds to be deposited with each such bank or trust company shall on
behalf of each applicable Portfolio be approved by vote of a majority of the
Board. Such funds shall be deposited by the Custodian in its capacity as
Custodian and shall be withdrawable by the Custodian only in that capacity.
SECTION 2.5 COLLECTION OF INCOME. Except with respect to Portfolio property
released and delivered pursuant to Section 2.2(14) or purchased pursuant to
Section 2.6(7), and subject to the provisions of Section 2.3, the Custodian
shall collect on a timely basis all income and other payments with respect to
registered domestic securities held hereunder to which each Portfolio shall be
entitled either by law or pursuant to custom in the securities business, and
shall collect on a timely basis all income and other payments with respect to
bearer domestic securities if, on the date of payment by the issuer, such
securities are held by the Custodian or its agent thereof and shall credit such
income, as collected, to such Portfolio'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 each Portfolio on securities loaned pursuant to the
provisions of Section 2.2 (10) shall be the responsibility of the applicable
Fund. The Custodian will have no duty or responsibility in connection therewith,
other than to provide the Fund with such information
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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 Portfolio is properly
entitled.
SECTION 2.6 PAYMENT OF FUND MONIES. Upon receipt of Proper Instructions on
behalf of the applicable Portfolio, which may be continuing instructions when
deemed appropriate by the parties, the Custodian shall pay out monies of a
Portfolio in the following cases only:
1) Upon the purchase of domestic securities, options, futures contracts
or options on futures contracts for the account of the Portfolio but
only (a) against the delivery of such securities or evidence of title
to such options, futures contracts or options on futures contracts to
the Custodian (or any bank, banking firm or trust company doing
business in the United States or abroad which is qualified under the
1940 Act to act as a custodian and has been designated by the
Custodian as its agent for this purpose) registered in the name of the
Portfolio 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 U.S. Securities System, in accordance
with the conditions set forth in Section 2.8 hereof; (c) in the case
of a purchase of Underlying Shares, in accordance with the conditions
set forth in Section 2.10 hereof; (d) in the case of repurchase
agreements entered into between the applicable Fund on behalf of a
Portfolio and the Custodian, or another bank, or a broker-dealer which
is a member of FINRA, (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 Portfolio of
securities owned by the Custodian along with written evidence of the
agreement by the Custodian to repurchase such securities from the
Portfolio; or (e) for transfer to a time deposit account of the Fund
in any bank, whether domestic or foreign; such transfer may be
effected prior to receipt of a confirmation from a broker and/or the
applicable bank pursuant to Proper Instructions from the Fund as
defined herein;
2) In connection with conversion, exchange or surrender of securities
owned by the Portfolio as set forth in Section 2.2 hereof;
3) For the redemption or repurchase of Shares issued as set forth in
Section 6 hereof;
4) For the payment of any expense or liability incurred by the Portfolio,
including but not limited to the following payments for the account of
the Portfolio: interest, taxes, management, accounting, transfer agent
and legal fees, and operating expenses of 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 on Shares declared pursuant to the
Fund's articles of incorporation or organization and by-laws or
agreement or declaration of trust, as applicable, and Prospectus
(collectively, "GOVERNING DOCUMENTS");
6) For payment of the amount of dividends received in respect of
securities sold short;
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7) Upon the purchase of domestic investments including, without
limitation, repurchase agreement transactions involving delivery of
Portfolio monies to Repo Custodian(s), and prior to receipt of such
investments, as set forth in written Proper Instructions (such payment
in advance of delivery, along with delivery in advance of payment made
in accordance with Section 2.2(14), as applicable, shall each be
referred to herein as a "FREE TRADE"), provided that such Proper
Instructions shall also set forth (a) the amount of such payment and
(b) the person(s) to whom such payment is made;
8) For payment as initial or variation margin in connection with futures
or options on futures contracts entered into by the Fund on behalf of
the Portfolio; and
9) For any other purpose, but only upon receipt of Proper Instructions
from the Fund on behalf of the Portfolio specifying (a) the amount of
such payment and (b) the person or persons to whom such payment is to
be made.
SECTION 2.7 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 1940 Act to act as a custodian, as
its agent to carry out such of the provisions of this Section 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. The Underlying Transfer Agent shall not be deemed an agent or
sub-custodian of the Custodian for purposes of this Section 2.7 or any other
provision of this Agreement.
SECTION 2.8 DEPOSIT OF FUND ASSETS IN U.S. SECURITIES SYSTEMS. The
Custodian may deposit and/or maintain securities owned by a Portfolio in a U.S.
Securities System in compliance with the conditions of Rule 17f-4 under the 1940
Act, as amended from time to time.
SECTION 2.9 SEGREGATED ACCOUNT. The Custodian shall upon receipt of Proper
Instructions on behalf of each applicable Portfolio, establish and maintain a
segregated account or accounts for and on behalf of each such Portfolio, into
which account or accounts may be transferred cash and/or securities, including
securities maintained in an account by the Custodian pursuant to Section 2.8
hereof, (a) in accordance with the provisions of any agreement among the Fund on
behalf of the Portfolio, the Custodian and a broker-dealer registered under the
Exchange Act and a member of the FINRA (or any futures commission merchant
registered under the Commodity Exchange Act), relating to compliance with the
rules of The Options Clearing Corporation and of any registered national
securities exchange (or the CFTC or any registered contract market), or of any
similar organization or organizations, regarding escrow or other arrangements in
connection with transactions by the Portfolio, (b) for purposes of segregating
cash or government securities in connection with options purchased, sold or
written by the Portfolio or commodity futures contracts or options thereon
purchased or sold by the Portfolio, (c) for the purposes of compliance by the
Portfolio with the procedures required by Investment Company Act Release No.
10666, or any subsequent release of the U.S. Securities and Exchange Commission
(the "SEC"), or interpretative opinion of the staff of the SEC, relating to the
maintenance of segregated accounts by registered
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management investment companies, and (d) for any other purpose in accordance
with Proper Instructions.
SECTION 2.10 DEPOSIT OF FUND ASSETS WITH THE UNDERLYING TRANSFER AGENT.
Underlying Shares beneficially owned by the Fund, on behalf of a Portfolio,
shall be deposited and/or maintained in an account or accounts maintained with
an Underlying Transfer Agent and the Custodian's only responsibilities with
respect thereto shall be limited to the following:
1) Upon receipt of a confirmation or statement from an Underlying
Transfer Agent that such Underlying Transfer Agent is holding or
maintaining Underlying Shares in the name of the Custodian (or a
nominee of the Custodian) for the benefit of a Portfolio, the
Custodian shall identify by book-entry that such Underlying Shares are
being held by it as custodian for the benefit of such Portfolio.
2) In respect of the purchase of Underlying Shares for the account of a
Portfolio, upon receipt of Proper Instructions, the Custodian shall
pay out monies of such Portfolio as so directed, and record such
payment from the account of such Portfolio on the Custodian's books
and records.
3) In respect of the sale or redemption of Underlying Shares for the
account of a Portfolio, upon receipt of Proper Instructions, the
Custodian shall transfer such Underlying Shares as so directed, record
such transfer from the account of such Portfolio on the Custodian's
books and records and, upon the Custodian's receipt of the proceeds
therefor, record such payment for the account of such Portfolio on the
Custodian's books and records.
The Custodian shall not be liable to the Fund for any loss or damage to the
Fund or any Portfolio resulting from the maintenance of Underlying Shares
with an Underlying Transfer Agent except for losses resulting directly from
the fraud, negligence or willful misconduct of the Custodian or any of its
agents or of any of its or their employees.
SECTION 2.11 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 each Portfolio held by it and in connection
with transfers of securities.
SECTION 2.12 PROXIES. Except with respect to Portfolio property released
and delivered pursuant to Section 2.2(14), or purchased pursuant to Section
2.6(7), 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
Portfolio or a nominee of the Portfolio, all proxies, without indication of the
manner in which such proxies are to be voted, and shall promptly deliver to the
Fund such proxies, all proxy soliciting materials and all notices relating to
such securities.
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SECTION 2.13 COMMUNICATIONS RELATING TO PORTFOLIO SECURITIES. Except with
respect to Portfolio property released and delivered pursuant to Section
2.2(14), or purchased pursuant to Section 2.6(7), and subject to the provisions
of Section 2.3, the Custodian shall transmit promptly to the applicable Fund for
each Portfolio 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 on behalf of the Portfolio and the maturity of futures contracts
purchased or sold by the Fund on behalf of the Portfolio) received by the
Custodian from issuers of the securities being held for the Portfolio. With
respect to tender or exchange offers, the Custodian shall transmit promptly to
the applicable Fund all written information received by the Custodian from
issuers of the securities whose tender or exchange is sought and from the party
(or its agents) making the tender or exchange offer. The Custodian shall not be
liable for any untimely exercise of any tender, exchange or other right or power
in connection with domestic securities or other property of the Portfolios at
any time held by it unless (i) the Custodian is in actual possession of such
domestic securities or property and (ii) the Custodian receives Proper
Instructions with regard to the exercise of any such right or power, and both
(i) and (ii) occur at least three business days prior to the date on which the
Custodian is to take action to exercise such right or power. The Custodian shall
also transmit promptly to the applicable Fund for each Portfolio all written
information received by the Custodian regarding any class action or other
litigation in connection with Portfolio securities or other assets issued in the
United States and then held, or previously held, during the term of this
Agreement by the Custodian for the account of the Fund for such Portfolio,
including, but not limited to, opt-out notices and proof-of-claim forms. For
avoidance of doubt, upon and after the effective date of any termination of this
Agreement, with respect to a Fund or its Portfolio(s), as may be applicable, the
Custodian shall have no responsibility to so transmit any information under this
Section 2.13.
SECTION 3. PROVISIONS RELATING TO RULES 17F-5 AND 17F-7.
SECTION 3.1. DEFINITIONS. As used throughout this Agreement, the
capitalized terms set forth below shall have the indicated meanings:
"COUNTRY RISK" means all factors reasonably related to the systemic risk of
holding Foreign Assets in a particular country including, but not limited to,
such country's political environment, economic and financial infrastructure
(including any Eligible Securities Depository operating in the country),
prevailing or developing custody and settlement practices, and laws and
regulations applicable to the safekeeping and recovery of Foreign Assets held in
custody in that country.
"ELIGIBLE FOREIGN CUSTODIAN" has the meaning set forth in section (a)(1) of Rule
17f-5, including a majority-owned or indirect subsidiary of a U.S. Bank (as
defined in Rule 17f-5), a bank holding company meeting the requirements of an
Eligible Foreign Custodian (as set forth in Rule 17f-5 or by other appropriate
action of the SEC), or a foreign branch of a Bank (as defined in Section 2(a)(5)
of the 0000 Xxx) meeting the requirements of a custodian under Section 17(f) of
the 1940 Act; the term does not include any Eligible Securities Depository.
"ELIGIBLE SECURITIES DEPOSITORY" has the meaning set forth in section (b)(1) of
Rule 17f-7.
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"FOREIGN ASSETS" means any of the Portfolios' investments (including foreign
currencies) for which the primary market is outside the United States and such
cash and cash equivalents as are reasonably necessary to effect the Portfolios'
transactions in such investments.
"FOREIGN CUSTODY MANAGER" has the meaning set forth in section (a)(3) of Rule
17f-5.
"RULE 17F-5" means Rule 17f-5 promulgated under the 1940 Act.
"RULE 17F-7" means Rule 17f-7 promulgated under the 1940 Act.
SECTION 3.2. THE CUSTODIAN AS FOREIGN CUSTODY MANAGER.
3.2.1 DELEGATION TO THE CUSTODIAN AS FOREIGN CUSTODY MANAGER. Each
Fund, by resolution adopted by its Board, hereby delegates to the
Custodian, subject to Section (b) of Rule 17f-5, the responsibilities set
forth in this Section 3.2 with respect to Foreign Assets of the Portfolios
held outside the United States, and the Custodian hereby accepts such
delegation as Foreign Custody Manager with respect to the Portfolios.
3.2.2 COUNTRIES COVERED. The Foreign Custody Manager shall be
responsible for performing the delegated responsibilities defined below
only with respect to the countries and custody arrangements for each such
country listed on Schedule A to this Agreement, which list of countries may
be amended from time to time by any Fund with the agreement of the Foreign
Custody Manager. The Foreign Custody Manager shall list on Schedule A the
Eligible Foreign Custodians selected by the Foreign Custody Manager to
maintain the assets of the Portfolios, which list of Eligible Foreign
Custodians may be amended from time to time in the sole discretion of the
Foreign Custody Manager. The Foreign Custody Manager will provide amended
versions of Schedule A in accordance with Section 3.2.5 hereof.
Upon the receipt by the Foreign Custody Manager of Proper Instructions to open
an account or to place or maintain Foreign Assets in a country listed on
Schedule A, and the fulfillment by each Fund, on behalf of the applicable
Portfolio(s), of the applicable account opening requirements for such country,
the Foreign Custody Manager shall be deemed to have been delegated by such
Fund's Board on behalf of such Portfolio(s) responsibility as Foreign Custody
Manager with respect to that country and to have accepted such delegation.
Execution of this Agreement by each Fund shall be deemed to be a Proper
Instruction to open an account, or to place or maintain Foreign Assets, in each
country listed on Schedule A. Following the receipt of Proper Instructions
directing the Foreign Custody Manager to close the account of a Portfolio with
the Eligible Foreign Custodian selected by the Foreign Custody Manager in a
designated country, the delegation by the Board on behalf of such Portfolio to
the Custodian as Foreign Custody Manager for that country shall be deemed to
have been withdrawn and the Custodian shall immediately cease to be the Foreign
Custody Manager with respect to such Portfolio with respect to that country.
The Foreign Custody Manager may withdraw its acceptance of delegated
responsibilities with respect to a designated country upon written notice to the
Fund. Thirty days (or such longer period to which the parties agree in writing)
after receipt of any such notice by the Fund, the Custodian
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shall have no further responsibility in its capacity as Foreign Custody Manager
to the Fund with respect to the country as to which the Custodian's acceptance
of delegation is withdrawn.
3.2.3 SCOPE OF DELEGATED RESPONSIBILITIES:
(a) SELECTION OF ELIGIBLE FOREIGN CUSTODIANS. Subject to the
provisions of this Section 3.2, the Foreign Custody Manager may place
and maintain the Foreign Assets in the care of the Eligible Foreign
Custodian selected by the Foreign Custody Manager in each country
listed on Schedule A, as amended from time to time. In performing its
delegated responsibilities as Foreign Custody Manager to place or
maintain Foreign Assets with an Eligible Foreign Custodian, the
Foreign Custody Manager shall determine that the Foreign Assets will
be subject to reasonable care, based on the standards applicable to
custodians in the country in which the Foreign Assets will be held by
that Eligible Foreign Custodian, after considering all factors
relevant to the safekeeping of such assets, including, without
limitation the factors specified in Rule 17f-5(c)(1).
(b) CONTRACTS WITH ELIGIBLE FOREIGN CUSTODIANS. The Foreign
Custody Manager shall determine that the contract governing the
foreign custody arrangements with each Eligible Foreign Custodian
selected by the Foreign Custody Manager will satisfy the requirements
of Rule 17f-5(c)(2).
(c) MONITORING. In each case in which the Foreign Custody Manager
maintains Foreign Assets with an Eligible Foreign Custodian selected
by the Foreign Custody Manager, the Foreign Custody Manager shall
establish a system to monitor (i) the appropriateness of maintaining
the Foreign Assets with such Eligible Foreign Custodian and (ii) the
contract governing the custody arrangements established by the Foreign
Custody Manager with the Eligible Foreign Custodian. In the event the
Foreign Custody Manager determines that the custody arrangements with
an Eligible Foreign Custodian it has selected are no longer
appropriate, the Foreign Custody Manager shall notify the Board in
accordance with Section 3.2.5 hereunder.
3.2.4 GUIDELINES FOR THE EXERCISE OF DELEGATED AUTHORITY. For purposes
of this Section 3.2, the Board shall be deemed to have considered and
determined to accept such Country Risk as is incurred by placing and
maintaining the Foreign Assets in each country for which the Custodian is
serving as Foreign Custody Manager of the Portfolios.
3.2.5 REPORTING REQUIREMENTS. The Foreign Custody Manager shall report
the withdrawal of the Foreign Assets from an Eligible Foreign Custodian and
the placement of such Foreign Assets with another Eligible Foreign
Custodian by providing to the Board an amended Schedule A at the end of the
calendar quarter in which an amendment to such Schedule has occurred. The
Foreign Custody Manager shall make written reports notifying the Board of
any other material change in the foreign custody arrangements of the
Portfolios described in this Section 3.2 after the occurrence of the
material change.
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3.2.6 STANDARD OF CARE AS FOREIGN CUSTODY MANAGER OF A PORTFOLIO. In
performing the responsibilities delegated to it, the Foreign Custody
Manager agrees to exercise reasonable care, prudence and diligence such as
a person having responsibility for the safekeeping of assets of management
investment companies registered under the 1940 Act would exercise.
3.2.7 REPRESENTATIONS WITH RESPECT TO RULE 17F-5. The Foreign Custody
Manager represents to each Fund that it is a U.S. Bank as defined in
section (a)(7) of Rule 17f-5. Each Fund represents to the Custodian that
its Board has determined that it is reasonable for such Board to rely on
the Custodian to perform the responsibilities delegated pursuant to this
Agreement to the Custodian as the Foreign Custody Manager of the
Portfolios.
3.2.8 EFFECTIVE DATE AND TERMINATION OF THE CUSTODIAN AS FOREIGN
CUSTODY MANAGER. Each Board's delegation to the Custodian as Foreign
Custody Manager of the Portfolios shall be effective as of the date hereof
and shall remain in effect until terminated at any time, without penalty,
by written notice from the terminating party to the non-terminating party.
Termination will become effective thirty (30) days after receipt by the
non-terminating party of such notice. The provisions of Section 3.2.2
hereof shall govern the delegation to and termination of the Custodian as
Foreign Custody Manager of the Portfolios with respect to designated
countries.
SECTION 3.3 ELIGIBLE SECURITIES DEPOSITORIES.
3.3.1 ANALYSIS AND MONITORING. The Custodian shall (a) provide the
Fund (or its duly-authorized investment manager or investment adviser) with
an analysis of the custody risks associated with maintaining assets with
the Eligible Securities Depositories set forth on Schedule B hereto in
accordance with section (a)(1)(i)(A) of Rule 17f-7, and (b) monitor such
risks on a continuing basis, and promptly notify the Fund (or its
duly-authorized investment manager or investment adviser) of any material
change in such risks, in accordance with section (a)(1)(i)(B) of Rule
17f-7.
3.3.2 STANDARD OF CARE. The Custodian agrees to exercise reasonable
care, prudence and diligence in performing the duties set forth in Section
3.3.1.
SECTION 4. DUTIES OF THE CUSTODIAN WITH RESPECT TO PROPERTY OF THE PORTFOLIOS TO
BE HELD OUTSIDE THE UNITED STATES.
SECTION 4.1 DEFINITIONS. As used throughout this Agreement, the capitalized
terms set forth below shall have the indicated meanings:
"FOREIGN SECURITIES SYSTEM" means an Eligible Securities Depository listed on
Schedule B hereto.
"FOREIGN SUB-CUSTODIAN" means a foreign banking institution serving as an
Eligible Foreign Custodian.
SECTION 4.2. HOLDING SECURITIES. The Custodian shall identify on its books
as belonging to the Portfolios the foreign securities held by each Foreign
Sub-Custodian or Foreign Securities
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System. The Custodian may hold foreign securities for all of its customers,
including the Portfolios, with any Foreign Sub-Custodian in an account that is
identified as belonging to the Custodian for the benefit of its customers,
provided however, that (i) the records of the Custodian with respect to foreign
securities of the Portfolios which are maintained in such account shall identify
those securities as belonging to the Portfolios and (ii), to the extent
permitted and customary in the market in which the account is maintained, the
Custodian shall require that securities so held by the Foreign Sub-Custodian be
held separately from any assets of such Foreign Sub-Custodian or of other
customers of such Foreign Sub-Custodian.
SECTION 4.3. FOREIGN SECURITIES SYSTEMS. Foreign securities shall be
maintained in a Foreign Securities System in a designated country through
arrangements implemented by the Custodian or a Foreign Sub-Custodian, as
applicable, in such country.
SECTION 4.4. TRANSACTIONS IN FOREIGN CUSTODY ACCOUNT.
4.4.1. DELIVERY OF FOREIGN ASSETS. The Custodian or a Foreign
Sub-Custodian shall release and deliver foreign securities of the
Portfolios held by the Custodian or such Foreign Sub-Custodian, or in a
Foreign Securities System account, only upon receipt of Proper
Instructions, which may be continuing instructions when deemed appropriate
by the parties, and only in the following cases:
(i) Upon the sale of such foreign securities for the Portfolio in
accordance with commercially reasonable market practice in the
country where such foreign securities are held or traded,
including, without limitation: (A) delivery against expectation
of receiving later payment; or (B) in the case of a sale
effected through a Foreign Securities System, in accordance
with the rules governing the operation of the Foreign
Securities System;
(ii) In connection with any repurchase agreement related to foreign
securities;
(iii) To the depository agent in connection with tender or other
similar offers for foreign securities of the Portfolios;
(iv) To the issuer thereof or its agent when such foreign securities
are called, redeemed, retired or otherwise become payable;
(v) To the issuer thereof, or its agent, for transfer into the name
of the Custodian (or the name of the respective Foreign
Sub-Custodian or of any nominee of the Custodian or such
Foreign Sub-Custodian) or for exchange for a different number
of bonds, certificates or other evidence representing the same
aggregate face amount or number of units;
(vi) To brokers, clearing banks or other clearing agents for
examination or trade execution in accordance with market
custom; provided that in any such case, the Foreign
Sub-Custodian shall have no responsibility or liability for any
loss arising
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from the delivery of such foreign securities prior to receiving
payment for such foreign securities except as may arise from
the Foreign Sub-Custodian's own negligence or willful
misconduct;
(vii) For exchange or conversion pursuant to any plan of merger,
consolidation, recapitalization, reorganization or readjustment
of the securities of the issuer of such securities, or pursuant
to provisions for conversion contained in such securities, or
pursuant to any deposit agreement;
(viii) In the case of warrants, rights or similar foreign securities,
the surrender thereof in the exercise of such warrants, rights
or similar securities or the surrender of interim receipts or
temporary securities for definitive securities;
(ix) For delivery as security in connection with any borrowing by a
Fund on behalf of a Portfolio requiring a pledge of assets by
the Fund on behalf of such Portfolio;
(x) In connection with trading in options and futures contracts,
including delivery as original margin and variation margin;
(xi) Upon the sale or other delivery of such foreign securities
(including, without limitation, to one or more Special
Sub-Custodians or Repo Custodians) as a Free Trade, provided
that applicable Proper Instructions shall set forth (A) the
foreign securities to be delivered and (B) the person or
persons to whom delivery shall be made;
(xii) In connection with the lending of foreign securities; and
(xiii) For any other purpose, but only upon receipt of Proper
Instructions specifying (A) the foreign securities to be
delivered and (B) the person or persons to whom delivery of
such securities shall be made.
4.4.2. PAYMENT OF PORTFOLIO MONIES. Upon receipt of Proper
Instructions, which may be continuing instructions when deemed appropriate
by the parties, the Custodian shall pay out, or direct the respective
Foreign Sub-Custodian or the respective Foreign Securities System to pay
out, monies of a Portfolio in the following cases only:
(i) Upon the purchase of foreign securities for the Portfolio,
unless otherwise directed by Proper Instructions, by (A)
delivering money to the seller thereof or to a dealer therefor
(or an agent for such seller or dealer) against expectation of
receiving later delivery of such foreign securities; or (B) in
the case of a purchase effected through a Foreign Securities
System, in accordance with the rules governing the operation of
such Foreign Securities System;
(ii) In connection with the conversion, exchange or surrender of
foreign securities of the Portfolio;
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(iii) For the payment of any expense or liability of the Portfolio,
including but not limited to the following payments: interest,
taxes, investment advisory fees, transfer agency fees, fees
under this Agreement, legal fees, accounting fees, and other
operating expenses;
(iv) For the purchase or sale of foreign exchange or foreign
exchange contracts for the Portfolio, including transactions
executed with or through the Custodian or its Foreign
Sub-Custodians;
(v) In connection with trading in options and futures contracts,
including delivery as original margin and variation margin;
(vi) Upon the purchase of foreign investments including, without
limitation, repurchase agreement transactions involving
delivery of Portfolio monies to Repo Custodian(s), as a Free
Trade, provided that applicable Proper Instructions shall set
forth (A) the amount of such payment and (B) the person or
persons to whom payment shall be made;
(vii) For payment of part or all of the dividends received in respect
of securities sold short;
(viii) In connection with the borrowing or lending of foreign
securities; and
(ix) For any other purpose, but only upon receipt of Proper
Instructions specifying (A) the amount of such payment and (B)
the person or persons to whom such payment is to be made.
4.4.3. MARKET CONDITIONS. Notwithstanding any provision of this
Agreement to the contrary, settlement and payment for Foreign Assets
received for the account of the Portfolios and delivery of Foreign Assets
maintained for the account of the Portfolios may be effected in accordance
with the customary established securities trading or processing practices
and procedures in the country or market in which the transaction occurs,
including, without limitation, delivering Foreign Assets to the purchaser
thereof or to a dealer therefor (or an agent for such purchaser or dealer)
with the expectation of receiving later payment for such Foreign Assets
from such purchaser or dealer.
The Custodian shall provide to each Board the information with respect to
custody and settlement practices in countries in which the Custodian employs a
Foreign Sub-Custodian described on Schedule C hereto at the time or times set
forth on such Schedule. The Custodian may revise Schedule C from time to time,
provided that no such revision shall result in a Board being provided with
substantively less information than had been previously provided hereunder.
SECTION 4.5. REGISTRATION OF FOREIGN SECURITIES. The foreign securities
maintained in the custody of a Foreign Sub-Custodian (other than bearer
securities) shall be registered in the name
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of the applicable Portfolio or in the name of the Custodian or in the name of
any Foreign Sub-Custodian or in the name of any nominee of the foregoing, and
the applicable Fund on behalf of such Portfolio agrees to hold any such nominee
harmless from any liability as a holder of record of such foreign securities.
The Custodian or a Foreign Sub-Custodian shall not be obligated to accept
securities on behalf of a Portfolio under the terms of this Agreement unless the
form of such securities and the manner in which they are delivered are in
accordance with reasonable market practice.
SECTION 4.6 BANK ACCOUNTS. The Custodian shall identify on its books as
belonging to the applicable Fund cash (including cash denominated in foreign
currencies) deposited with the Custodian. Where the Custodian is unable to
maintain, or market practice does not facilitate the maintenance of, cash on the
books of the Custodian, a bank account or bank accounts shall be opened and
maintained outside the United States on behalf of a Portfolio with a Foreign
Sub-Custodian. All accounts referred to in this Section shall be subject only to
draft or order by the Custodian (or, if applicable, such Foreign Sub-Custodian)
acting pursuant to the terms of this Agreement to hold cash received by or from
or for the account of the Portfolio. Cash maintained on the books of the
Custodian (including its branches, subsidiaries and affiliates), regardless of
currency denomination, is maintained in bank accounts established under, and
subject to the laws of, The Commonwealth of Massachusetts.
SECTION 4.7. COLLECTION OF INCOME. The Custodian shall use reasonable
commercial efforts to collect all income and other payments with respect to the
Foreign Assets held hereunder to which the Portfolios shall be entitled and
shall credit such income, as collected, to the applicable Portfolio. In the
event that extraordinary measures are required to collect such income, the Fund
and the Custodian shall consult as to such measures and as to the compensation
and expenses of the Custodian relating to such measures.
SECTION 4.8 SHAREHOLDER RIGHTS. With respect to the foreign securities held
pursuant to this Section 4, the Custodian shall use reasonable commercial
efforts to facilitate the exercise of voting and other shareholder rights,
subject always to the laws, regulations and practical constraints that may exist
in the country where such securities are issued. Each Fund acknowledges that
local conditions, including lack of regulation, onerous procedural obligations,
lack of notice and other factors may have the effect of severely limiting the
ability of such Fund to exercise shareholder rights.
SECTION 4.9. COMMUNICATIONS RELATING TO FOREIGN SECURITIES. The Custodian
shall transmit promptly to the applicable Fund written information with respect
to materials received by the Custodian via the Foreign Sub-Custodians from
issuers of the foreign securities being held for the account of the Portfolios
(including, without limitation, pendency of calls and maturities of foreign
securities and expirations of rights in connection therewith). With respect to
tender or exchange offers, the Custodian shall transmit promptly to the
applicable Fund written information with respect to materials so received by the
Custodian from issuers of the foreign securities whose tender or exchange is
sought or from the party (or its agents) making the tender or exchange offer.
The Custodian shall not be liable for any untimely exercise of any tender,
exchange or other right or power in connection with foreign securities or other
property of the Portfolios at any time held by it
-16-
unless (i) the Custodian or the respective Foreign Sub-Custodian is in actual
possession of such foreign securities or property and (ii) the Custodian
receives Proper Instructions with regard to the exercise of any such right or
power, and both (i) and (ii) occur at least three business days prior to the
date on which the Custodian is to take action to exercise such right or power.
The Custodian shall also transmit promptly to the applicable Fund all written
information received by the Custodian via the Foreign Sub-Custodians from
issuers of the foreign securities being held for the account of the Portfolios
regarding any class action or other litigation in connection with Portfolio
foreign securities or other assets issued outside the United States and then
held, or previously held, during the term of this Agreement by the Custodian via
a Foreign Sub-Custodian for the account of the Fund for such Portfolio,
including, but not limited to, opt-out notices and proof-of-claim forms. For
avoidance of doubt, upon and after the effective date of any termination of this
Agreement, with respect to a Fund or its Portfolio(s), as may be applicable, the
Custodian shall have no responsibility to so transmit any information under this
Section 4.9.
SECTION 4.10. LIABILITY OF FOREIGN SUB-CUSTODIANS. Each agreement pursuant
to which the Custodian employs a Foreign Sub-Custodian shall, to the extent
possible, require the Foreign Sub-Custodian to exercise reasonable care in the
performance of its duties, and to indemnify, and hold harmless, the Custodian
from and against any loss, damage, cost, expense, liability or claim arising out
of or in connection with the Foreign Sub-Custodian's performance of such
obligations. At a Fund's election, the Portfolios shall be entitled to be
subrogated to the rights of the Custodian with respect to any claims against a
Foreign Sub-Custodian as a consequence of any such loss, damage, cost, expense,
liability or claim if and to the extent that the Portfolios have not been made
whole for any such loss, damage, cost, expense, liability or claim.
SECTION 4.11 TAX LAW. The Custodian shall have no responsibility or
liability for any obligations now or hereafter imposed on any Fund, the
Portfolios or the Custodian as custodian of the Portfolios by the tax law of the
United States or of any state or political subdivision thereof. It shall be the
responsibility of each Fund to notify the Custodian of the obligations imposed
on such Fund with respect to the Portfolios or the Custodian as custodian of the
Portfolios by the tax law of countries other than those mentioned in the above
sentence, including responsibility for withholding and other taxes, assessments
or other governmental charges, certifications and governmental reporting. The
sole responsibility of the Custodian with regard to such tax law shall be to use
reasonable efforts to assist the Fund with respect to any claim for exemption or
refund under the tax law of countries for which such Fund has provided such
information.
SECTION 4.12. LIABILITY OF CUSTODIAN. The Custodian shall be liable for the
acts or omissions of a Foreign Sub-Custodian to the same extent as set forth
with respect to sub-custodians generally in this Agreement and, regardless of
whether assets are maintained in the custody of a Foreign Sub-Custodian or a
Foreign Securities System, the Custodian shall not be liable for any loss,
damage, cost, expense, liability or claim resulting from nationalization,
expropriation, currency restrictions, or acts of war or terrorism, or any other
loss where the Sub-Custodian has otherwise acted with reasonable care.
SECTION 5. SPECIAL SUB-CUSTODIANS.
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Upon receipt of Special Instructions (as such term is defined in Section 7
hereof), the Custodian shall, on behalf of one or more Portfolios, appoint one
or more banks, trust companies or other entities designated in such Special
Instructions to act as a sub-custodian for the purposes of effecting such
transaction(s) as may be designated by a Fund in Special Instructions. Each such
designated sub-custodian is referred to herein as a "SPECIAL SUB-CUSTODIAN."
Each such duly appointed Special Sub-Custodian shall be listed on Schedule D
hereto, as it may be amended from time to time by a Fund, with the
acknowledgment of the Custodian. In connection with the appointment of any
Special Sub-Custodian, and in accordance with Special Instructions, the
Custodian shall enter into a sub-custodian agreement with the Fund and the
Special Sub-Custodian in form and substance approved by such Fund, provided that
such agreement shall in all events comply with the provisions of the 1940 Act
and the rules and regulations thereunder and the terms and provisions of this
Agreement.
SECTION 6. PAYMENTS FOR SALES OR REPURCHASES OR REDEMPTIONS OF SHARES.
The Custodian shall receive from the distributor of the Shares or from the
Transfer Agent and deposit into the account of the appropriate Portfolio such
payments as are received for Shares thereof issued or sold from time to time by
the applicable Fund. The Custodian will provide timely notification to such Fund
on behalf of each such Portfolio and the Transfer Agent of any receipt by it of
payments for Shares of such Portfolio.
From such funds as may be available for the purpose, 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, 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, the Custodian shall honor checks drawn on the Custodian
by a holder of Shares, which checks have been furnished by a 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 such Fund and
the Custodian.
SECTION 7. PROPER INSTRUCTIONS AND SPECIAL INSTRUCTIONS.
"PROPER INSTRUCTIONS," which may also be standing instructions, as such term is
used throughout this Agreement shall mean instructions received by the Custodian
from a Fund, a Fund's duly authorized investment manager or investment adviser,
or a person or entity duly authorized by either of them. Such instructions may
be in writing signed by the authorized person or persons or may be in a tested
communication or in a communication utilizing access codes effected between
electro-mechanical or electronic devices or may be by such other means and
utilizing such intermediary systems and utilities as may be agreed from time to
time by the Custodian and the person(s) or entity giving such instruction,
provided that the Fund has followed any security procedures agreed to from time
to time by the applicable Fund and the Custodian including, but not limited to,
the security procedures selected by the Fund via the form of Funds Transfer
Addendum hereto, the terms of which are hereby agreed to. Oral instructions will
be considered Proper Instructions if the Custodian
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reasonably believes them to have been given by a person authorized to provide
such instructions with respect to the transaction involved; the Fund shall cause
all oral instructions to be confirmed in writing. For purposes of this Section,
Proper Instructions shall include instructions received by the Custodian
pursuant to any multi-party agreement which requires a segregated asset account
in accordance with Section 2.9 hereof.
"SPECIAL INSTRUCTIONS," as such term is used throughout this Agreement, means
Proper Instructions countersigned or confirmed in writing by the Treasurer or
any Assistant Treasurer of the applicable Fund or any other person designated in
writing by the Treasurer of such Fund, which countersignature or confirmation
shall be (a) included on the same instrument containing the Proper Instructions
or on a separate instrument clearly relating thereto and (b) delivered by hand,
by facsimile transmission, or in such other manner as the Fund and the Custodian
agree in writing.
Concurrently with the execution of this Agreement, and from time to time
thereafter, as appropriate, each Fund shall deliver to the Custodian, duly
certified by such Fund's Treasurer or Assistant Treasurer, a certificate setting
forth: (i) the names, titles, signatures and scope of authority of all persons
authorized to give Proper Instructions or any other notice, request, direction,
instruction, certificate or instrument on behalf of the Fund and (ii) the names,
titles and signatures of those persons authorized to give Special Instructions.
Such certificate may be accepted and relied upon by the Custodian as conclusive
evidence of the facts set forth therein and shall be considered to be in full
force and effect until receipt by the Custodian of a similar certificate to the
contrary.
SECTION 8. 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 applicable
Fund. The Custodian may receive and accept a copy of a resolution certified by
the Secretary or an Assistant Secretary of any Fund as conclusive evidence (a)
of the authority of any person to act in accordance with such resolution or (b)
of any determination or of any action by the applicable Board as described in
such resolution, and such resolution may be considered as in full force and
effect until receipt by the Custodian of written notice to the contrary.
SECTION 9. ACTIONS PERMITTED WITHOUT EXPRESS AUTHORITY.
The Custodian may in its discretion, without express authority from the
applicable Fund on behalf of each applicable Portfolio:
1) Make payments to itself or others for minor expenses of handling
securities or other similar items relating to its duties under this
Agreement; provided that all such payments shall be accounted for to
the Fund on behalf of the Portfolio;
2) Surrender securities in temporary form for securities in definitive
form;
3) Endorse for collection, in the name of the Portfolio, checks, drafts
and other negotiable instruments; and
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4) In general, attend to all non-discretionary details in connection with
the sale, exchange, substitution, purchase, transfer and other
dealings with the securities and property of the Portfolio except as
otherwise directed by the applicable Board.
SECTION 10. 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 applicable Board to keep the books of
account of each Portfolio and/or compute the net asset value per Share of the
outstanding Shares or, if directed in writing to do so by a Fund on behalf of a
Portfolio, 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 Portfolio as described in the 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. Each Fund acknowledges and agrees that, with respect to investments
maintained with the Underlying Transfer Agent, the Underlying Transfer Agent is
the sole source of information on the number of shares of a fund held by it on
behalf of a Portfolio and that the Custodian has the right to rely on holdings
information furnished by the Underlying Transfer Agent to the Custodian in
performing its duties under this Agreement, including without limitation, the
duties set forth in this Section 10 and in Section 11 hereof; provided, however,
that the Custodian shall be obligated to reconcile information as to purchases
and sales of Underlying Shares contained in trade instructions and confirmations
received by the Custodian and to report promptly any discrepancies to the
Underlying Transfer Agent. The calculations of the net asset value per Share and
the daily income of each Portfolio shall be made at the time or times described
from time to time in the Prospectus. Each Fund acknowledges that, in keeping the
books of account of the Portfolio and/or making the calculations described
herein with respect to Portfolio property released and delivered pursuant to
Section 2.2(14), or purchased pursuant to Section 2.6(7) hereof, the Custodian
is authorized and instructed to rely upon information provided to it by the
Fund, the Fund's counterparty(ies), or the agents of either of them.
SECTION 11. RECORDS.
The Custodian shall with respect to each Portfolio create and maintain all
records relating to its activities and obligations under this Agreement in such
manner as will meet the obligations of each Fund under the 1940 Act, with
particular attention to section 31 thereof and Rules 31a-1 and 31a-2 thereunder.
All such records shall be the property of 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 such Fund and employees and agents
of the SEC. The Custodian shall, at a Fund's request, supply the Fund with a
tabulation of securities owned by each Portfolio 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. Each Fund acknowledges that, in creating and maintaining the
records as set forth herein with
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respect to Portfolio property released and delivered pursuant to Section
2.2(14), or purchased pursuant to Section 2.6(7) hereof, the Custodian is
authorized and instructed to rely upon information provided to it by the Fund,
the Fund's counterparty(ies), or the agents of either of them.
SECTION 12. OPINION OF FUND'S INDEPENDENT ACCOUNTANT.
The Custodian shall take all reasonable action, as a Fund with respect to a
Portfolio 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 or Form
N-2, as applicable, and Form N-SAR or other annual reports to the SEC and with
respect to any other requirements thereof.
SECTION 13. REPORTS TO FUND BY INDEPENDENT PUBLIC ACCOUNTANTS.
The Custodian shall provide the applicable Fund, on behalf of each of the
Portfolios at such times as such Fund may reasonably require, with reports by
independent public accountants on the accounting system, internal accounting
control and procedures for safeguarding securities, futures contracts and
options on futures contracts, including securities deposited and/or maintained
in a U.S. Securities System or a Foreign Securities System (either, a
"SECURITIES SYSTEM"), relating to the services provided by the Custodian under
this Agreement; such reports, 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, the reports shall so state.
SECTION 14. 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 each Fund on
behalf of each applicable Portfolio and the Custodian.
SECTION 15. 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 Agreement 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, including any futures
commission merchant acting pursuant to the terms of a three-party futures or
options agreement. The Custodian shall be held to the exercise of reasonable
care in carrying out the provisions of this Agreement, but shall be kept
indemnified by and shall be without liability to any Fund for any action taken
or omitted by it in good faith without negligence, including, without
limitation, acting in accordance with any Proper Instruction. 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. The Custodian shall be
without liability to any Fund or Portfolio for any loss, liability, claim or
expense resulting from or caused by anything that is part of Country Risk,
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including without limitation nationalization, expropriation, currency
restrictions, insolvency of a Foreign Sub-custodian, acts of war, revolution,
riots or terrorism.
Except as may arise from the Custodian's own negligence or willful misconduct or
the negligence or willful misconduct of a sub-custodian or agent, the Custodian
shall be without liability to any Fund for any loss, liability, claim or expense
resulting from or caused by; (i) events or circumstances beyond the reasonable
control of the Custodian or any sub-custodian or Securities System or any agent
or nominee of any of the foregoing, including, without limitation, the
interruption, suspension or restriction of trading on or the closure of any
securities market, power or other mechanical or technological failures or
interruptions, computer viruses or communications disruptions, work stoppages,
natural disasters, or other similar events or acts; (ii) errors by any Fund or
its duly authorized investment manager or investment adviser in their
instructions to the Custodian provided such instructions have been in accordance
with this Agreement; (iii) the insolvency of or acts or omissions by a
Securities System; (iv) any act or omission of a Special Sub-Custodian
including, without limitation, reliance on reports prepared by a Special
Sub-Custodian; (v) any delay or failure of any broker, agent or intermediary,
central bank or other commercially prevalent payment or clearing system to
deliver to the Custodian's sub-custodian or agent securities purchased or in the
remittance or payment made in connection with securities sold; (vi) any delay or
failure of any company, corporation, or other body in charge of registering or
transferring securities in the name of the Custodian, any Fund, the Custodian's
sub-custodians, nominees or agents or any consequential losses arising out of
such delay or failure to transfer such securities including non-receipt of
bonus, dividends and rights and other accretions or benefits; (vii) delays or
inability to perform its duties due to any disorder in market infrastructure
with respect to any particular security or Securities System; and (viii) any
provision of any present or future law or regulation or order of the United
States of America, or any state thereof, or any other country, or political
subdivision thereof or of any court of competent jurisdiction. The Custodian
shall be liable for the acts or omissions of a Foreign Sub-Custodian to the same
extent as set forth with respect to sub-custodians generally in this Agreement.
If a Fund on behalf of a Portfolio 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 or the Portfolio being liable for the payment of
money or incurring liability of some other form, such Fund on behalf of the
Portfolio, 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 a Fund requires the Custodian, its affiliates, subsidiaries or agents, to
advance cash or securities for any purpose (including but not limited to
securities settlements, foreign exchange contracts and assumed settlement) or in
the event that 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 Agreement, 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 applicable Portfolio 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 such
Portfolio's assets to the extent necessary to obtain reimbursement.
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Except as may arise from the Custodian's own negligence or willful misconduct,
each Fund shall indemnify and hold the Custodian harmless from and against any
and all costs, expenses, losses, damages, charges, counsel fees, payments and
liabilities which may be asserted against the Custodian (a) acting in accordance
with any Proper Instruction or Special Instruction including, without
limitation, any Proper Instruction with respect to Free Trades including, but
not limited to, cost, expense, loss, damage, liability, tax, charge, assessment
or claim resulting from (i) the failure of the applicable Fund to receive income
with respect to purchased investments, (ii) the failure of the applicable Fund
to recover amounts invested on maturity of purchased investments, (iii) the
failure of the Custodian to respond to or be aware of notices or other corporate
communications with respect to purchased investments, or (iv) the Custodian's
reliance upon information provided by the applicable Fund, such Fund's
counterparty(ies) or the agents of either of them with respect to Fund property
released, delivered or purchased pursuant to either of Section 2.2(14) or
Section 2.6(7) hereof; (b) for the acts or omissions of any Special
Sub-Custodian; or (c) for the acts or omissions of any Local Agent or Pledgee.
In no event shall the Custodian be liable for indirect, special or consequential
damages.
SECTION 16. EFFECTIVE PERIOD, TERMINATION AND AMENDMENT.
This Agreement shall remain in full force and effect for an initial term ending
August 10, 2014 (the "INITIAL TERM"). After the expiration of the Initial Term,
this Agreement shall renew, subject to written notice from the Funds of their
intent to renew (such notice to be delivered at least ninety (90) days prior to
the end of the Initial Term or the then-current term, which notice period may be
waived by the Custodian) for additional successive two-year terms (each, a
"RENEWAL TERM"), and may be terminated by any party with respect to such party
during any Renewal Term by written instrument delivered or mailed, such
termination to take effect not sooner than ninety (90) days after the date of
such delivery or mailing. During the Initial Term and thereafter, either party
may terminate this Agreement: (i) in the event of the other party's material
breach of a material provision of this Agreement that the other party has either
(a) failed to cure or (b) failed to establish a remedial plan to cure that is
reasonably acceptable, within 60 days' written notice of such breach, or (ii) in
the event of the appointment of a conservator or receiver for the other party or
upon the happening of a like event to the other party at the direction of an
appropriate agency or court of competent jurisdiction. In addition, a Fund may
terminate this Agreement during the Initial Term and thereafter if, in such
Fund's reasonable opinion, the Custodian has not achieved one or more of the
performance measures set forth in any service level document (a "SERVICE LEVEL
DOCUMENT") that may be established in good faith by the parties, and a plan or
revised plan has not been put into place in accordance with the following
procedures: In the event that such Fund reasonably believes that the Custodian
has not met one or more of the performance measures set forth in any Service
Level Document during any calendar quarter, the Fund may, in its discretion,
submit a written deficiency notice to the Custodian outlining the performance
deficiencies ("DEFICIENCY NOTICE"). Such Deficiency Notice shall be provided to
the Custodian within 20 days of the end of such calendar quarter. After receipt
of such notice, the Custodian shall present the Fund with a written plan (the
"PLAN") to address the deficiencies set forth in the Deficiency Notice. Such
Plan must be provided to the Fund within 30 days after receipt of the Deficiency
Notice. If the Custodian fails to submit a Plan within such 30-
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day period, the Fund may terminate this Agreement upon 60 days' written notice
to the Custodian. The Fund, in its discretion, may accept or reject the Plan by
notifying the Custodian in writing ("PLAN NOTICE") within 15 days after
submission of the Plan. If the Fund fails to provide a Plan Notice within such
15-day period, it shall be presumed that the Fund accepted the Plan. In the
event the Fund submits a Plan Notice rejecting the Plan, the Custodian shall
submit a revised plan ("REVISED PLAN") within 30 days after provision of such
Plan Notice. If the Custodian fails to submit a Revised Plan within such 30-day
period, the Fund may terminate the Agreement upon 60 days' written notice to the
Custodian. The Fund, in its discretion, may accept or reject the Revised Plan by
notifying the Custodian in writing ("REVISED PLAN NOTICE") within 15 days after
provision of the Revised Plan. If the Fund fails to provide a Revised Plan
Notice within such 15-day period, it shall be presumed that the Fund accepted
the Revised Plan. If the Fund provides a Revised Plan Notice to the Custodian
that rejects the Revised Plan, the Fund may, in its discretion, terminate this
Agreement upon 60 days' written notice to the Custodian. Such termination notice
must be submitted to the Custodian within 60 days after provision of the Revised
Plan Notice. Upon termination of this Agreement pursuant to this paragraph with
respect to any Fund or Portfolio, the applicable Fund shall pay Custodian its
compensation due and shall reimburse Custodian for its costs, expenses and
disbursements.
In the event of: (i) any Fund's termination of this Agreement with respect to
such Fund or its Portfolio(s) for any reason other than as set forth in the
foregoing paragraph or (ii) a transaction not in the ordinary course of business
pursuant to which the Custodian is not retained to continue providing services
hereunder to a Fund or Portfolio (or its respective successor), the applicable
Fund shall pay the Custodian its compensation due through the end of the
then-current term (based upon the average monthly compensation previously earned
by Custodian with respect to such Fund or Portfolio) and shall reimburse the
Custodian for its costs, expenses and disbursements. Upon receipt of such
payment and reimbursement, the Custodian will deliver such Fund's or Portfolio's
securities and cash as set forth hereinbelow. For the avoidance of doubt, no
payment will be required pursuant to clause (ii) of this paragraph in the event
of any transaction such as a merger of a Fund or Portfolio into, or the
consolidation of a Fund or Portfolio with, another entity, the sale by a Fund or
Portfolio of all, or substantially all, of its assets to another entity, or the
liquidation or dissolution of a Fund or Portfolio and distribution of such
Fund's or Portfolio's assets, in each case where the Custodian is retained to
continue providing services to such Fund or Portfolio (or its respective
successor) on substantially the same terms as this Agreement.
Termination of this Agreement with respect to any one particular Fund or
Portfolio shall in no way affect the rights and duties under this Agreement with
respect to any other Fund or Portfolio. The provisions of Sections 4.11, 14 and
15 of this Agreement shall survive termination of this Agreement for any reason.
This Agreement may be amended at any time in writing by mutual agreement of the
parties hereto.
SECTION 17. SUCCESSOR CUSTODIAN.
If a successor custodian for one or more Portfolios shall be appointed by the
applicable Board, the Custodian shall, upon termination and receipt of Proper
Instructions, deliver to such successor
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custodian at the office of the Custodian, duly endorsed and in the form for
transfer, all securities of each applicable Portfolio then held by it hereunder
and shall transfer to an account of the successor custodian all of the
securities of each such Portfolio held in a Securities System or at the
Underlying Transfer Agent.
If no such successor custodian shall be appointed, the Custodian shall, in like
manner, upon receipt of Proper Instructions, deliver at the office of the
Custodian and transfer such securities, funds and other properties in accordance
with such resolution.
In the event that no Proper Instructions designating a successor custodian or
alternative arrangements 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 1940 Act, doing business in Boston, Massachusetts or New York,
New York, of its own selection, having an aggregate capital, surplus, and
undivided profits, as shown by its last published report, of not less than
$25,000,000, all securities, funds and other properties held by the Custodian on
behalf of each applicable Portfolio and all instruments held by the Custodian
relative thereto and all other property held by it under this Agreement on
behalf of each applicable Portfolio, and to transfer to an account of such
successor custodian all of the securities of each such Portfolio held in any
Securities System or at the Underlying Transfer Agent. Thereafter, such bank or
trust company shall be the successor of the Custodian under this Agreement.
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 any Fund to provide Proper Instructions as aforesaid, 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 Agreement relating to the duties and obligations of
the Custodian shall remain in full force and effect.
SECTION 18. GENERAL.
SECTION 18.1 MASSACHUSETTS LAW TO APPLY. This Agreement shall be construed
and the provisions thereof interpreted under and in accordance with laws of The
Commonwealth of Massachusetts.
SECTION 18.2 PRIOR AGREEMENTS. This Agreement supersedes and terminates, as
of the date hereof, all prior Agreements between each Fund on behalf of each of
the Portfolios and the Custodian relating to the custody of such Fund's assets.
SECTION 18.3 ASSIGNMENT. This Agreement may not be assigned by (a) any Fund
without the written consent of the Custodian or (b) by the Custodian without the
written consent of each applicable Fund.
SECTION 18.4 INTERPRETIVE AND ADDITIONAL PROVISIONS. In connection with the
operation of this Agreement, the Custodian and each Fund on behalf of each of
the Portfolios, may from time to time agree on such provisions interpretive of
or in addition to the provisions of this Agreement as
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may in their joint opinion be consistent with the general tenor of this
Agreement. Any such interpretive or additional provisions shall be in a writing
signed by all 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 a Fund's Governing Documents. No
interpretive or additional provisions made as provided in the preceding sentence
shall be deemed to be an amendment of this Agreement.
SECTION 18.5 ADDITIONAL FUNDS. In the event that any management investment
company in addition to those listed on Appendix A hereto 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 management investment company shall become a Fund
hereunder and be bound by all terms and conditions and provisions hereof
including, without limitation, the representations and warranties set forth in
Section 18.7 below.
SECTION 18.6 ADDITIONAL PORTFOLIOS. In the event that any Fund establishes
one or more series of Shares in addition to those set forth on Appendix A hereto
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 Portfolio hereunder.
SECTION 18.7 THE PARTIES. All references herein to the "Fund" are to each
of the management investment companies listed on Appendix A hereto, and each
management investment company made subject to this Agreement in accordance with
Section 18.5 above, individually, as if this Agreement were between such
individual Fund and the Custodian. In the case of a series corporation, trust or
other entity, all references herein to the "Portfolio" are to the individual
series or portfolio of such corporation, trust or other entity, or to such
corporation, trust or other entity on behalf of the individual series or
portfolio, as appropriate. Any reference in this Agreement to "the parties"
shall mean the Custodian and such other individual Fund as to which the matter
pertains. Each Fund hereby represents and warrants that (a) it is duly
incorporated or organized and is validly existing in good standing in its
jurisdiction of incorporation or organization; (b) it has the requisite power
and authority under applicable law and its Governing Documents to enter into and
perform this Agreement; (c) all requisite proceedings have been taken to
authorize it to enter into and perform this Agreement; (d) this Agreement
constitutes its legal, valid, binding and enforceable agreement; and (e) its
entrance into this Agreement shall not cause a material breach or be in material
conflict with any other agreement or obligation of the Fund or any law or
regulation applicable to it.
SECTION 18.8 REMOTE ACCESS SERVICES ADDENDUM. The Custodian and each Fund
agree to be bound by the terms of the Remote Access Services Addendum hereto.
SECTION 18.9 NOTICES. Any notice, instruction or other instrument required
to be given hereunder may be delivered in person to the offices of the parties
as set forth herein during normal business hours or delivered prepaid registered
mail or by telex, cable or telecopy to the parties at the following addresses or
such other addresses as may be notified by any party from time to time.
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To any Fund: c/o WELLS FARGO
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx, Senior Vice President
Telephone: 000-000-0000
Telecopy: 000-000-0000
To the Custodian: STATE STREET BANK AND TRUST COMPANY
0 Xxxxxx xx Xxxxxxxxx
Xxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxx, Senior Vice President
Telephone: 000-000-0000
Telecopy: 000-000-0000
Such notice, instruction or other instrument shall be deemed to have been served
in the case of a registered letter at the expiration of five business days after
posting, in the case of cable twenty-four hours after dispatch and, in the case
of telex, immediately on dispatch and if delivered outside normal business hours
it shall be deemed to have been received at the next time after delivery when
normal business hours commence and in the case of cable, telex or telecopy on
the business day after the receipt thereof. Evidence that the notice was
properly addressed, stamped and put into the post shall be conclusive evidence
of posting.
SECTION 18.10 COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original, and all such
counterparts taken together shall constitute one and the same Agreement.
SECTION 18.11 SEVERABILITY. If any provision or provisions of this
Agreement shall be held to be invalid, unlawful or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired.
SECTION 18.12 CONFIDENTIALITY. The parties hereto agree that each shall
treat confidentially all information provided by each party to the other party
regarding its business and operations. All confidential information provided by
a party hereto shall be used by any other party hereto solely for the purpose of
rendering or receiving services pursuant to this Agreement and, except as may be
required in carrying out this Agreement, shall not be disclosed to any third
party. The foregoing shall not be applicable to any information (i) that is
publicly available when provided or thereafter becomes publicly available, other
than through a breach of this Agreement, or that is independently derived by any
party hereto without the use of any information provided by the other party
hereto in connection with this Agreement, (ii) that is required in any legal or
regulatory proceeding, investigation, audit, examination, subpoena, civil
investigative demand or other similar process, or by operation of law or
regulation, or (iii) where the party seeking to disclose has received the prior
written consent of the party providing the information, which consent shall not
be unreasonably withheld. Notwithstanding anything herein to the contrary, the
Custodian and its affiliates may report and use nonpublic portfolio holdings
information of its clients, including a Fund or Portfolio,
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on an aggregated basis with all or substantially all other client information
and without specific reference to any Fund or Portfolio.
The receiving party acknowledges it would be difficult to fully compensate
the disclosing party for damages that may result from the breach or threatened
breach of this section and, accordingly, the disclosing party will be entitled
to seek injunctive relief, including temporary restraining orders, preliminary
injunctions, and permanent injunctions, to enforce such provisions. This
provision with respect to injunctive relief will not, however, diminish the
disclosing party's right to seek other legal, contractual or equitable remedies,
or to claim and recover damages.
SECTION 18.13 BUSINESS CONTINUITY/DISASTER RECOVERY. In the event of
equipment failure, work stoppage, governmental action, communication disruption
or other impossibility of performance beyond the Custodian's control, the
Custodian shall take reasonable steps to minimize service interruptions. The
Custodian shall enter into and shall maintain in effect at all times during the
term of this Agreement with appropriate parties one or more agreements making
reasonable provision for (i) periodic back-up of the computer files and data
with respect to the Funds; and (ii) emergency use of electronic data processing
equipment to provide services under this Agreement. Upon reasonable request, the
Custodian shall discuss with senior management of the Funds any business
continuity/disaster recovery plan of the Custodian and/or provide a high-level
presentation summarizing such plan.
SECTION 18.14. INFORMATION SECURITY. Custodian's information security
program has been reasonably designed and is and will continue to be implemented
in an effort to (i) mitigate the risks identified by either of the parties to
this agreement, and (ii) maintain adequate controls regarding the services
provided under this agreement. Custodian has established and will maintain
reasonable safeguards against the destruction, loss, alteration of or
unauthorized disclosure or access to each Fund's data in its possession.
With respect to information security, each Fund reserves the right to
conduct (i) an initial risk assessment prior to commencing receipt of services
under this agreement, (ii) additional risk assessments annually thereafter, and
(iii) risk assessments upon a material modification of existing services to be
provided, all to identify the risks associated with the services to be provided,
and, depending on the results of such risks assessments, each Fund may also
conduct a site visit or other reasonable evaluations of Custodian's information
security program acceptable to Custodian. Any such visits, assessments or
evaluations will be (i) subject to reasonable limitations required by Custodian
relating to confidentiality and privacy and shall be limited solely to systems
handling information and data of the Fund, (ii) conducted so as to not
unreasonably interfere with the operations of Custodian, (iii) conducted at
times and locations mutually agreeable to the Fund and Custodian with
representatives of Custodian present at all times, and (iv) subject to the
confidentiality provisions in Section 18.12 hereof. Custodian will reasonably
cooperate in such risk assessments. Custodian reasonably believes that its
information security program reflects information security standards, which may
include (i) administrative, technical and physical safeguards appropriate for
the size and complexity of Custodian's operations and the nature and scope of
the services to be provided and reasonably designed to maintain the
confidentiality, integrity and availability of each Fund's confidential
information, (ii) policies and procedures
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reasonably designed and regularly tested to detect, assess, control and respond
to any unauthorized access to a Fund's confidential information, or (iii)
information regarding the risk assessment, risk management and control, training
of Custodian's personnel on compliance with the information security program,
testing of the information security program, oversight of any subcontractor
arrangements, periodic reports to each Fund in respect thereof, and the process
for the annual certification of the Custodian in relation to its information
security program. The risk assessments will be conducted by each Fund or its
designee (who will be a nationally known security firm) identified to and
acceptable to Custodian. Should any risk assessment result in the discovery of
what a Fund reasonably determines to be material security risks, the Fund will
promptly notify Custodian of such risks and the parties will discuss such risks
and Custodian's plan to address them if Custodian reasonably agrees that such
risks are material to its provision of services hereunder.
If and to the extent applicable to the services provided hereunder,
Custodian represents and warrants that: (i) it will not alter or disable any
hardware or software security programs residing on a Fund's hardware or systems,
and (ii) it will take reasonable steps to not allow unauthorized traffic to pass
as a result of its access to the Fund's networks. If, and to the extent
applicable to the services provided hereunder, Custodian does allow unauthorized
traffic to pass into a Fund's networks, it may immediately terminate this
access. Further, if remote access is granted to Custodian's employees
telecommuting in any capacity and to the extent applicable to the services
provided hereunder, then Custodian may be subject to additional data security
obligations, such as a system access agreement to the extent acceptable to
Custodian.
If a network connection is established between a Fund and the computing
environment(s) used by Custodian, Custodian will take reasonable steps so that
(i) the Fund is permitted to perform network assessments of such computing
environment(s) based on a mutually-agreed annual schedule, and (ii) Custodian
maintains an alert status regarding the security of such computing environments,
including all vulnerabilities and security patches or corrective actions, by
subscribing to an industry-recognized service. Further, Custodian will furnish
the Fund with a high-level summary of reports prepared by a nationally known
independent auditor of such testing of its systems. Custodian understands that,
should a Fund assessment or determination reveal inappropriate or inadequate
security in the reasonable opinion of Fund and based on the pre-defined
requirements for security that are acceptable to Custodian, the Fund may, in
addition to other remedies it may have, remove access by Custodian's personnel
to the Fund's network until Custodian satisfactorily complies with applicable
security requirements. Custodian shall be relieved from its obligations
hereunder if performance of such obligations is impeded or otherwise adversely
affected by Custodian's not having access to a Fund's network.
To the extent consistent with Custodian's customary and standard employment
practices and policies: (a) Custodian warrants and agrees that it will cause to
be conducted criminal background checks on each of its employees who will
perform Sensitive Services (as defined below), and that no Ineligible Personnel
will perform Sensitive Services. "Ineligible Personnel" means any person who, as
evidenced by such background checks (i) has been convicted at any time of any
material criminal offense involving dishonesty, a breach of trust, or money
laundering, or who has entered into a pre-trial diversion or similar program in
connection with a prosecution for such offense, or (ii) has been convicted of a
felony. "Sensitive Services" means those services provided hereunder that (i)
require
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access to customer information; (ii) related to a Fund's computer networks,
information systems, databases or secure facilities under circumstances that
would permit modifications to such systems; or (iii) involve primarily
unsupervised access to secure facilities. (b) Upon reasonable request but no
more than once annually, Custodian will provide written confirmation that all
its employees providing Sensitive Services have undergone a criminal background
check and are eligible to provide Sensitive Services. In the event Custodian
becomes aware of any actual security breach that compromises a Fund's
confidential information, including customer information (e.g., physical
trespass on a secure facility, computing systems intrusion/hacking, loss/theft
of a PC (laptop or desktop), or loss/theft of printed materials) (collectively,
a "Security Breach"), unless prohibited by law or regulation and following
completion of internal incident review, Custodian will promptly notify security
personnel of such Security Breach at the following twenty-four (24) hour phone
number: 000-000-0000 (or other number provided to Custodian from time to time in
writing in accordance with Section 18.9 hereof), and will take reasonable steps
to investigate and remedy the security breach. Except as may be required by its
regulators or otherwise by applicable law, regulation, subpoena, or government
or court order, Custodian agrees that it will not inform any third party, other
than regulators or agents of Custodian, of the Fund's involvement with any such
security breach without a Fund's prior written consent, which shall not be
unreasonably withheld; however, if such disclosure is so required, Custodian
will endeavor, to the extent practicable and permissible, to obtain a Fund's
approval regarding the content of such disclosure so as to minimize any
potential adverse impact upon a Fund. Custodian will maintain records of any
known or suspected security breaches in connection with the services provided
hereunder to the Funds in accordance with its customary practices, and if not
prohibited by applicable law, regulation or confidentiality requirement, will
make such records available to a Fund for review at Custodian's office upon
reasonable request.
Each Fund or its representatives ("Auditors"), not more than once annually,
will have the right to audit Custodian's performance hereunder solely as
necessary to determine its compliance with this Section 18.14 ("Audit"). The
Auditors will be granted reasonable access, subject to reasonable restrictions
imposed by Custodian relating to confidentiality, security and privacy, and
Custodian will cooperate with the Auditors and provide them with such reasonable
assistance as they may reasonably request solely to verify the provision of
services in accordance with this Section 18.14, provided that (i) Audits may
only occur during normal business hours at the locations where the Custodian's
personnel provide services hereunder or retain records hereunder at mutually
agreeable times; (ii) Audits will be conducted in a manner that is designed to
minimize any adverse impact on normal business operations and with
representatives of Custodian present at all times; (iii) Auditors will comply
with all standard safety and security procedures of the Custodian in conducting
any such Audits; and (iv) any information accessed by Auditors in the
performance of any such Audit will be deemed to be the confidential information
of the Custodian, and any such Audit shall be subject to the confidentiality
provisions in Section 18.12 hereof or if the Auditor is not a Fund, the
execution of a confidentiality agreement between such Auditor and Custodian;
however, the results of the Audit will be the property of the Funds, or the
Auditor, as applicable and subject to ongoing obligations of confidentiality. If
an Audit identifies a critical control weakness or risk that in the reasonable
opinion of the Fund will adversely impact Custodian's ability to provide
services as agreed, comply with applicable law, or meet Custodian's business
continuity obligations hereunder, a Fund will promptly inform Custodian in
writing of such opinion of control weakness. Custodian
-30-
will have thirty (30) business days to respond to this written notice. Nothing
contained herein shall obligate Custodian to provide access to or otherwise
disclose: (i) any information that is unrelated to the relevant Fund and the
provision of the services hereunder to such Fund; (ii) any information that is
treated as confidential under the Custodian's corporate policies, including,
without limitation, internal audit reports, compliance or risk management plans
or reports, work papers and other reports and information relating to management
functions; or (iii) any other documents, reports or other information that the
Custodian is obligated to maintain in confidence by contract, by its regulators
or otherwise as a matter of law or regulation. In addition, any access provided
hereunder to technology shall be limited to a demonstration by the Custodian of
the functionality thereof and a reasonable opportunity to communicate with the
Custodian personnel regarding such technology.
SECTION 18.15 REPRODUCTION OF DOCUMENTS. This Agreement and all schedules,
addenda, exhibits, appendices, attachments and amendments hereto may be
reproduced by any photographic, photostatic, microfilm, micro-card, miniature
photographic or other similar process. The parties hereto all/each agree that
any such reproduction shall be admissible in evidence as the original itself in
any judicial or administrative proceeding, whether or not the original is in
existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
SECTION 18.16 SHAREHOLDER COMMUNICATIONS ELECTION. SEC Rule 14b-2 requires
banks which hold securities for the account of customers to respond to requests
by issuers of securities for the names, addresses and holdings of beneficial
owners of securities of that issuer held by the bank unless the beneficial owner
has expressly objected to disclosure of this information. In order to comply
with the rule, the Custodian needs each Fund to indicate whether it authorizes
the Custodian to provide such Fund's name, address, and share position to
requesting companies whose securities the Fund owns. If a Fund tells the
Custodian "no," the Custodian will not provide this information to requesting
companies. If a Fund tells the Custodian "yes" or does not check either "yes" or
"no" below, the Custodian is required by the rule to treat the Fund as
consenting to disclosure of this information for all securities owned by the
Fund or any funds or accounts established by the Fund. For a Fund's protection,
the Rule prohibits the requesting company from using the Fund's name and address
for any purpose other than corporate communications. Please indicate below
whether the Fund consents or objects by checking one of the alternatives below.
YES [ ] The Custodian is authorized to release the Fund's name, address, and
share positions.
NO [X] The Custodian is not authorized to release the Fund's name, address, and
share positions.
-31-
SIGNATURE PAGE
IN WITNESS WHEREOF, each of the parties has caused this instrument to be
executed in its name and behalf by its duly authorized representative under seal
as of the date first above-written.
EACH OF THE ENTITIES
SET FORTH ON APPENDIX A HERETO
By:
----------------------------------
Name: Xxxxx Xxxxxxx
Title: President
STATE STREET BANK AND TRUST COMPANY
By:
----------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Vice Chairman
MASTER CUSTODIAN AGREEMENT
APPENDIX A
TO
MASTER CUSTODIAN AGREEMENT
MANAGEMENT INVESTMENT COMPANIES REGISTERED WITH THE SEC AND PORTFOLIOS THEREOF,
IF ANY
XXXXX FARGO FUNDS TRUST
100% Treasury Money Market Fund
Aggressive Allocation Fund
Asia Pacific Fund
Asset Allocation Fund
C&B Large Cap Value Fund
C&B Mid Cap Value Fund
California Limited-Term Tax-Free Fund
California Tax-Free Fund
California Municipal Money Market Fund
California Municipal Money Market Trust
Capital Growth Fund
Cash Investment Money Market Fund
Colorado Tax-Free Fund
Common Stock Fund
Conservative Allocation Fund
Discovery Fund
Diversified Bond Fund
Diversified Equity Fund
Diversified Small Cap Fund
Dow Xxxxx Target 2010 Fund
Dow Xxxxx Target 2015 Fund
Dow Xxxxx Target 2020 Fund
Dow Xxxxx Target 2025 Fund
Dow Xxxxx Target 2030 Fund
Dow Xxxxx Target 2035 Fund
Dow Xxxxx Target 2040 Fund
Dow Xxxxx Target 2045 Fund
Dow Xxxxx Target 2050 Fund
Dow Xxxxx Target Today Fund
Emerging Growth Fund
Emerging Markets Equity Fund
Endeavor Select Fund
Enterprise Fund
Equity Income Fund
Equity Value Fund
Government Money Market Fund
Government Securities Fund
Growth Fund
Growth Balanced Fund
Growth Equity Fund
Heritage Money Market Fund
High Income Fund
Income Plus Fund
Index Fund
Inflation-Protected Bond Fund
Intermediate Tax/AMT-Free Fund
International Core Fund
International Equity Fund
A-1
International Value Fund
Large Cap Appreciation Fund
Large Cap Growth Fund
Large Company Core Fund
Large Company Growth Fund
Large Company Value Fund
Mid Cap Disciplined Fund
Mid Cap Growth Fund
Minnesota Money Market Fund
Minnesota Tax-Free Fund
Moderate Balanced Fund
Money Market Fund
Money Market Trust
Municipal Bond Fund
Municipal Money Market Fund
National Tax-Free Money Market Fund
National Tax-Free Money Market Trust
Opportunity Fund
Overland Express Sweep Fund
Prime Investment Money Market Fund
Short Duration Government Bond Fund
Short-Term Bond Fund
Short-Term High Yield Bond Fund
Short-Term Municipal Bond Fund
Small Cap Disciplined Fund
Small Cap Growth Fund
Small Cap Opportunities Fund
Small Cap Value Fund
Small Company Growth Fund
Small Company Value Fund
Small/Mid Cap Value Fund
Social Sustainability Fund
Specialized Financial Services Fund
Specialized Technology Fund
Stable Income Fund
Strategic Income Fund
Total Return Bond Fund
Treasury Plus Money Market Fund
U.S. Value Fund
Ultra Short-Term Income Fund
Ultra Short-Term Municipal Income Fund
WealthBuilder Conservative Allocation Portfolio
WealthBuilder Equity Portfolio
WealthBuilder Growth Allocation Portfolio
WealthBuilder Growth Balanced Portfolio
WealthBuilder Moderate Balanced Portfolio
WealthBuilder Tactical Equity Portfolio
Wisconsin Tax-Free Fund
Xxxxx Fargo Managed Account CoreBuilder Shares - Series G
Xxxxx Fargo Managed Account CoreBuilder Shares - Series M
-2-
XXXXX FARGO MASTER TRUST
C&B Large Cap Value Portfolio
Disciplined Growth Portfolio
Diversified Fixed Income Portfolio
Diversified Stock Portfolio
Emerging Growth Portfolio
Equity Income Portfolio
Equity Value Portfolio
Index Portfolio
Inflation-Protected Bond Portfolio
International Core Portfolio
International Growth Portfolio
International Index Portfolio
International Value Portfolio
Large Cap Appreciation Portfolio
Large Company Growth Portfolio
Managed Fixed Income Portfolio
Short-Term Investment Portfolio
Small Cap Index Portfolio
Small Company Growth Portfolio
Small Company Value Portfolio
Stable Income Portfolio
Strategic Small Cap Value Portfolio
Total Return Bond Portfolio
XXXXX FARGO VARIABLE TRUST
VT Asset Allocation Fund
VT C&B Large Cap Value Fund
VT Discovery Fund
VT Equity Income Fund
VT International Core Fund
VT Large Company Core Fund
VT Large Company Growth Fund
VT Money Market Fund
VT Opportunity Fund
VT Small Cap Growth Fund
VT Small/Mid Cap Value Fund
VT Total Return Bond Fund
Appendix A amended: December 1, 0000
-0-
XXXXXXXX X
XXXXX XXXXXX
GLOBAL CUSTODY NETWORK
SUBCUSTODIANS
MARKET SUBCUSTODIAN
------ ------------
Argentina Citibank, N.A.
Australia The Hongkong and Shanghai Banking Corporation Limited
Citigroup Pty. Limited
Austria UniCredit Bank Austria AG
Bahrain HSBC Bank Middle East Limited
(as delegate of The Hongkong and Shanghai Banking Corporation Limited)
Bangladesh Standard Chartered Bank
Belgium Deutsche Bank AG, Netherlands (operating through its Amsterdam branch with support
from its Brussels branch)
Benin via Societe Generale de Banques en Cote d'Ivoire, Abidjan, Ivory Coast
Bermuda Bank of Bermuda Limited
Botswana Barclays Bank of Botswana Limited
Brazil Citibank, N.A.
Bulgaria ING Bank N.V.
Burkina Faso via Societe Generale de Banques en Cote d'Ivoire, Abidjan, Ivory Coast
Canada State Street Trust Company Canada
Cayman Islands Close Trustees (Cayman) Limited
Chile Banco Itau Chile
People's Republic HSBC Bank (China) Company Limited
of China (as delegate of The Hongkong and Shanghai Banking Corporation Limited)
(Shanghai and Shenzhen)
Colombia Cititrust Colombia S.A. Sociedad Fiduciaria
Costa Rica Banco BCT S.A.
Croatia Privredna Banka Zagreb d.d.
Cyprus BNP Paribas Securities Services, S.A., Greece (operating through its Athens branch)
Czech Republic Ceskoslovenska obchodni banka, a.s.
Denmark Skandinaviska Enskilda Xxxxxx XX, Sweden (operating through its Copenhagen branch)
Ecuador Banco de la Produccion S.A. PRODUBANCO
As of 6/30/09 1
SCHEDULE A
STATE STREET
GLOBAL CUSTODY NETWORK
SUBCUSTODIANS
MARKET SUBCUSTODIAN
------ ------------
Egypt HSBC Bank Egypt S.A.E.
(as delegate of The Hongkong and Shanghai Banking Corporation Limited)
Estonia AS SEB Pank
Finland Skandinaviska Enskilda Xxxxxx XX, Sweden (operating through its Helsinki branch)
France Deutsche Bank AG, Netherlands (operating through its Amsterdam branch with support
from its Paris branch)
Germany Deutsche Bank AG
Ghana Barclays Bank of Ghana Limited
Greece BNP Paribas Securities Services, S.A.
Guinea-Bissau via Societe Generale de Banques en Cote d'Ivoire, Abidjan, Ivory Coast
Hong Kong Standard Chartered Bank (Hong Kong) Limited
Hungary UniCredit Bank Hungary Zrt.
Iceland New Kaupthing Banki hf.
India Deutsche Bank AG
The Hongkong and Shanghai Banking Corporation Limited
Indonesia Deutsche Bank AG
Ireland Bank of Ireland
Israel Bank Hapoalim B.M.
Italy Deutsche Bank S.p.A.
Ivory Coast Societe Generale de Banques en Cote d'Ivoire
Jamaica Bank of Nova Scotia Jamaica Limited
Japan Mizuho Corporate Bank Limited
Sumitomo Mitsui Banking Corporation
Jordan HSBC Bank Middle East Limited
(as delegate of The Hongkong and Shanghai Banking Corporation Limited)
Kazakhstan SB HSBC Bank Kazakhstan JSC
(as delegate of The Hongkong and Shanghai Banking Corporation Limited)
Kenya Barclays Bank of Kenya Limited
As of 6/30/09 2
SCHEDULE A
STATE STREET
GLOBAL CUSTODY NETWORK
SUBCUSTODIANS
MARKET SUBCUSTODIAN
------ ------------
Republic of Korea Deutsche Bank AG
The Hongkong and Shanghai Banking Corporation Limited
Kuwait HSBC Bank Middle East Limited
(as delegate of The Hongkong and Shanghai Banking Corporation Limited)
Latvia AS SEB Banka
Lebanon HSBC Bank Middle East Limited
(as delegate of The Hongkong and Shanghai Banking Corporation Limited)
Lithuania AB SEB Bankas
Malaysia Standard Chartered Bank Malaysia Berhad
Mali via Societe Generale de Banques en Cote d'Ivoire, Abidjan, Ivory Coast
Malta The Hongkong and Shanghai Banking Corporation Limited
Mauritius The Hongkong and Shanghai Banking Corporation Limited
Mexico Banco Nacional de Mexico S.A.
Morocco Citibank Maghreb
Namibia Standard Bank Namibia Limited
Netherlands Deutsche Bank AG
New Zealand The Hongkong and Shanghai Banking Corporation Limited
Niger via Societe Generale de Banques en Cote d'Ivoire, Abidjan, Ivory Coast
Nigeria Stanbic IBTC Bank Plc.
Norway Skandinaviska Enskilda Xxxxxx XX, Sweden (operating through its Oslo branch)
Oman HSBC Bank Middle East Limited
(as delegate of The Hongkong and Shanghai Banking Corporation Limited)
Pakistan Deutsche Bank AG
Palestine HSBC Bank Middle East Limited
(as delegate of The Hongkong and Shanghai Banking Corporation Limited)
Peru Citibank del Peru, S.A.
Philippines Standard Chartered Bank
Poland Bank Handlowy w Warszawie S.A.
As of 6/30/09 3
SCHEDULE A
STATE STREET
GLOBAL CUSTODY NETWORK
SUBCUSTODIANS
MARKET SUBCUSTODIAN
------ ------------
Portugal Banco Comercial Portugues S.A.
Puerto Rico Citibank N.A.
Qatar HSBC Bank Middle East Limited
(as delegate of The Hongkong and Shanghai Banking Corporation Limited)
Romania ING Bank N.V.
Russia ING Bank (Eurasia) ZAO, Moscow
Saudi Arabia Saudi British Bank
(as delegate of The Hongkong and Shanghai Banking Corporation Limited)
Senegal via Societe Generale de Banques en Cote d'Ivoire, Abidjan, Ivory Coast
Serbia UniCredit Bank Serbia JSC
Singapore DBS Bank Limited
United Overseas Bank Limited
Slovak Republic Ceskoslovenska obchodna banka, a.s.
Slovenia UniCredit Banka Slovenija d.d.
South Africa Nedbank Limited
Standard Bank of South Africa Limited
Spain Deutsche Bank S.A.E.
Sri Lanka The Hongkong and Shanghai Banking Corporation Limited
Swaziland Standard Bank Swaziland Limited
Sweden Skandinaviska Enskilda Xxxxxx XX
Switzerland UBS AG
Credit Suisse
Taiwan - R.O.C. Bank of Taiwan
Thailand Standard Chartered Bank (Thai) Public Company Limited
Togo via Societe Generale de Banques en Cote d'Ivoire, Abidjan, Ivory Coast
Trinidad & Tobago Republic Bank Limited
Tunisia Banque Internationale Arabe de Tunisie
Turkey Citibank, A.S.
As of 6/30/09 4
SCHEDULE A
STATE STREET
GLOBAL CUSTODY NETWORK
SUBCUSTODIANS
MARKET SUBCUSTODIAN
------ ------------
Uganda Barclays Bank of Uganda Limited
Ukraine ING Bank Ukraine
United Arab Emirates - HSBC Bank Middle East Limited
Dubai Financial Market (as delegate of The Hongkong and Shanghai Banking Corporation Limited)
United Arab Emirates - HSBC Bank Middle East Limited
Dubai International (as delegate of The Hongkong and Shanghai Banking Corporation Limited)
Financial Center
United Arab Emirates - HSBC Bank Middle East Limited
Abu Dhabi (as delegate of The Hongkong and Shanghai Banking Corporation Limited)
United Kingdom State Street Bank and Trust Company, United Kingdom branch
Uruguay Banco Itau Uruguay S.A.
Venezuela Citibank, N.A.
Vietnam HSBC Bank (Vietnam) Limited
Zambia Barclays Bank of Zambia Plc.
Zimbabwe Barclays Bank of Zimbabwe Limited
As of 6/30/09 5
SCHEDULE B
STATE STREET
GLOBAL CUSTODY NETWORK
DEPOSITORIES OPERATING IN NETWORK MARKETS
MARKET DEPOSITORY
------ ----------
Argentina Caja de Valores S.A.
Australia Austraclear Limited
Austria Oesterreichische Kontrollbank AG (Wertpapiersammelbank Division)
Bahrain Clearing, Settlement, and Depository System of the Bahrain Stock Exchange
Bangladesh Central Depository Bangladesh Limited
Belgium National Bank of Belgium
Euroclear Belgium
Benin Depositaire Central - Banque de Reglement
Bermuda Bermuda Securities Depository
Botswana Central Securities Depository Company of Botswana Ltd.
Brazil Central de Custodia e de Liquidacao Financeira de Titulos Privados (CETIP)
Companhia Brasileira de Liquidacao e Custodia
Sistema Especial de Liquidacao e de Custodia (SELIC)
Bulgaria Bulgarian National Bank
Central Depository AD
Burkina Faso Depositaire Central - Banque de Reglement
Canada The Canadian Depository for Securities Limited
Chile Deposito Central de Valores S.A.
People's Republic China Securities Depository and Clearing Corporation Limited, Shanghai Branch
of China China Securities Depository and Clearing Corporation Limited, Shenzhen Branch
Colombia Deposito Central de Valores
Deposito Centralizado de Valores de Colombia S.A. (DECEVAL)
Costa Rica Central de Valores S.A.
Croatia Sredisnje klirinsko depozitarno drustvo d.d.
Cyprus Central Depository and Central Registry
Czech Republic Czech National Bank
Stredisko cennych papiru - Ceska republika
Denmark VP Securities A/S
As of 6/30/09 1
SCHEDULE B
STATE STREET
GLOBAL CUSTODY NETWORK
DEPOSITORIES OPERATING IN NETWORK MARKETS
MARKET DEPOSITORY
------ ----------
Egypt Misr for Central Clearing, Depository and Registry S.A.E.
Central Bank of Egypt
Estonia AS Eesti Vaartpaberikeskus
Finland Euroclear Finland
France Euroclear France
Germany Xxxxxxxxxxx Xxxxxxx XX, Xxxxxxxxx
Xxxxx GSE Securities Depository Company Ltd.
Greece Kentriko Apothetirio Aksion, a department of Hellenic Exchanges S.A. Holding
Bank of Greece, System for Monitoring Transactions in Securities in Book-Entry Form
Guinea-Bissau Depositaire Central - Banque de Reglement
Hong Xxxx Xxxxxxx Xxxxxxxxxxxx Xxxx
Xxxx Xxxx Securities Clearing Company Limited
Hungary Kozponti Elszamolohaz es Ertektar (Budapest) Zrt. (KELER)
Iceland Icelandic Securities Depository Limited
India Central Depository Services (India) Limited
National Securities Depository Limited
Reserve Bank of India
Indonesia Bank Indonesia
PT Kustodian Sentral Efek Indonesia
Israel Tel Aviv Stock Exchange Clearing House Ltd. (TASE Clearing House)
Italy Monte Titoli S.p.A.
Ivory Coast Depositaire Central - Banque de Reglement
Jamaica Jamaica Central Securities Depository
Japan Bank of Japan - Net System
Japan Securities Depository Center (JASDEC) Incorporated
Jordan Securities Depository Center
Kazakhstan Central Securities Depository
Kenya Central Depository and Settlement Corporation Limited
Central Bank of Kenya
As of 6/30/09 2
SCHEDULE B
STATE STREET
GLOBAL CUSTODY NETWORK
DEPOSITORIES OPERATING IN NETWORK MARKETS
MARKET DEPOSITORY
------ ----------
Republic of Korea Korea Securities Depository
Kuwait Kuwait Clearing Company
Latvia Latvian Central Depository
Lebanon Banque du Liban
Custodian and Clearing Center of Financial Instruments
for Lebanon and the Middle East (Midclear) X.X.X.
Lithuania Central Securities Depository of Lithuania
Malaysia Bank Negara Malaysia
Bursa Malaysia Depository Sdn. Bhd.
Mali Depositaire Central - Banque de Reglement
Malta Central Securities Depository of the Malta Stock Exchange
Mauritius Bank of Mauritius
Central Depository and Settlement Co. Ltd.
Mexico S.D. Indeval, S.A. de C.V.
Morocco Maroclear
Namibia Bank of Namibia
Netherlands Euroclear Nederland
New Zealand New Zealand Central Securities Depository Limited
Niger Depositaire Central - Banque de Reglement
Nigeria Central Securities Clearing System Limited
Norway Verdipapirsentralen
Oman Muscat Depository & Securities Registration Company, SAOC
Pakistan Central Depository Company of Pakistan Limited
State Bank of Pakistan
Palestine Clearing, Depository and Settlement system, a department of the Palestine Securities
Exchange
Peru CAVALI S.A. Institucion de Compensacion y Liquidacion de Valores
Philippines Philippine Depository & Trust Corporation
Registry of Scripless Securities (XXXX) of the Bureau of Treasury
As of 6/30/09 3
SCHEDULE B
STATE STREET
GLOBAL CUSTODY NETWORK
DEPOSITORIES OPERATING IN NETWORK MARKETS
MARKET DEPOSITORY
------ ----------
Poland Rejestr Papierow Wartosciowych
Krajowy Depozyt Papierow Wartosciowych S.A.
Portugal INTERBOLSA - Sociedad Gestora de Sistemas
de Liquidacao e de Sistemas Centralizados de Valores Mobiliarios, S.A.
Qatar Central Clearing and Registration (CCR), a department of the Qatar Exchange
Romania S.C. Depozitarul Central S.A.
National Bank of Romania
Russia Vneshtorgbank, Bank for Foreign Trade of the Russian Federation
National Depository Center
Saudi Arabia Tadawul Central Securities Depository
Saudi Arabian Monetary Agency
Senegal Depositaire Central - Banque de Reglement
Serbia Central Registrar Depository and Clearinghouse
Singapore The Central Depository (Pte) Limited
Monetary Authority of Singapore
Slovak Republic Centralny depozitar cennych papierov SR, a.s.
Slovenia KDD - Centralna klirinsko depotna xxxxxx x.x.
South Africa Strate Ltd.
Spain IBERCLEAR
Sri Lanka Central Bank of Sri Lanka
Central Depository System (Pvt) Limited
Sweden Euroclear Sweden
Switzerland SIX SIS AG
Taiwan - R.O.C. Taiwan Depository and Clearing Corporation
Central Bank of China
Thailand Thailand Securities Depository Company Limited
Togo Depositaire Central - Banque de Reglement
Trinidad and Tobago Central Bank of Trinidad and Tobago
Trinidad and Tobago Central Depository Limited
As of 6/30/09 4
SCHEDULE B
STATE STREET
GLOBAL CUSTODY NETWORK
DEPOSITORIES OPERATING IN NETWORK MARKETS
MARKET DEPOSITORY
------ ----------
Tunisia Societe Tunisienne Interprofessionelle pour la
Compensation et le Depots des Valeurs Mobilieres (STICODEVAM)
Turkey Central Bank of Turkey
Central Registry Agency
Uganda Bank of Uganda
Ukraine Mizhregionalny Fondovy Souz
National Bank of Ukraine
United Arab Emirates - Clearing and Depository System, a department of the Dubai Financial Market
Dubai Financial Market
United Arab Emirates - Central Securities Depository, owned and operated by NASDAQ Dubai Limited
Dubai International
Financial Center
United Arab Emirates - Clearing, Settlement, Depository and Registry department
Abu Dhabi of the Abu Dhabi Securities Exchange
United Kingdom Euroclear UK & Ireland Limited
Uruguay Banco Central del Uruguay
Venezuela Banco Central de Venezuela
Caja Venezolana de Valores
Vietnam Vietnam Securities Depository
Zambia Bank of Zambia
XxXX Central Shares Depository Limited
TRANSNATIONAL
Euroclear Bank S.A./N.V.
Clearstream Banking, S.A.
As of 6/30/09 5
SCHEDULE C
MARKET INFORMATION
PUBLICATION/TYPE OF INFORMATION BRIEF DESCRIPTION
------------------------------- -----------------
(SCHEDULED FREQUENCY)
The Guide to Custody in World Markets An overview of settlement and safekeeping procedures,
(hardcopy annually and regular custody practices and foreign investor considerations for the
website updates) markets in which State Street offers custodial services.
Global Custody Network Review Information relating to Foreign Sub-Custodians in State Street's
(annually) Global Custody Network. The Review stands as an integral part of
the materials that State Street provides to its U.S. mutual fund
clients to assist them in complying with SEC Rule 17f-5. The
Review also gives insight into State Street's market expansion
and Foreign Sub-Custodian selection processes, as well as the
procedures and controls used to monitor the financial condition
and performance of our Foreign Sub-Custodian banks.
Securities Depository Review Custody risk analyses of the Foreign Securities Depositories
(annually) presently operating in Network markets. This publication is an
integral part of the materials that State Street provides to its
U.S. mutual fund clients to meet informational obligations
created by SEC Rule 17f-7.
Global Legal Survey With respect to each market in which State Street offers
(annually) custodial services, opinions relating to whether local law
restricts (i) access of a fund's independent public accountants
to books and records of a Foreign Sub-Custodian or Foreign
Securities System, (ii) a fund's ability to recover in the event
of bankruptcy or insolvency of a Foreign Sub-Custodian or
Foreign Securities System, (iii) a fund's ability to recover in
the event of a loss by a Foreign Sub-Custodian or Foreign
Securities System, and (iv) the ability of a foreign investor to
convert cash and cash equivalents to U.S. dollars.
Subcustodian Agreements Copies of the contracts that State Street has entered into with
(annually) each Foreign Sub-Custodian that maintains U.S. mutual fund
assets in the markets in which State Street offers custodial
services.
Global Market Bulletin Information on changing settlement and custody conditions in
(daily or as necessary) markets where State Street offers custodial services. Includes
changes in market and tax regulations, depository developments,
dematerialization information, as well as other market changes
that may impact State Street's clients.
Foreign Custody Advisories For those markets where State Street offers custodial services
(as necessary) that exhibit special risks or infrastructures impacting custody,
State Street issues market advisories to highlight those unique
market factors which might impact our ability to offer
recognized custody service levels.
Material Change Notices Informational letters and accompanying materials confirming
(presently on a quarterly basis or summary of material changes with Foreign Sub-Custodians that
State Street's foreign custody have occurred during the previous quarter. The notices also
arrangements, including a as otherwise identify any material changes in the custodial risks associated
necessary) with maintaining assets with Foreign Securities Depositories.
As of 6/30/09 1
SCHEDULE D
TO
MASTER CUSTODIAN AGREEMENT
SPECIAL SUB-CUSTODIANS:
None
As of 6/30/09 1
FUNDS TRANSFER ADDENDUM
OPERATING GUIDELINES [LOGO OF STATE STREET]
1. OBLIGATION OF THE SENDER: State Street is authorized to promptly debit
Client's account(s) upon the receipt of a payment order in compliance with the
selected Security Procedure chosen for funds transfer and in the amount of money
that State Street has been instructed to transfer. State Street shall execute
payment orders in compliance with the Security Procedure and with the Client's
instructions on the execution date provided that such payment order is received
by the customary deadline for processing such a request, unless the payment
order specifies a later time. All payment orders and communications received
after this time will be deemed to have been received on the next business day.
2. SECURITY PROCEDURE: The Client acknowledges that the Security Procedure it
has designated on the Selection Form was selected by the Client from Security
Procedures offered by State Street. The Client agrees that the Security
Procedures are reasonable and adequate for its wire transfer transactions and
agrees to be bound by any payment orders, amendments and cancellations, whether
or not authorized, issued in its name and accepted by State Street after being
confirmed by any of the selected Security Procedures. The Client also agrees to
be bound by any other valid and authorized payment order accepted by State
Street. The Client shall restrict access to confidential information relating to
the Security Procedure to authorized persons as communicated in writing to State
Street. The Client must notify State Street immediately if it has reason to
believe unauthorized persons may have obtained access to such information or of
any change in the Client's authorized personnel. State Street shall verify the
authenticity of all instructions according to the Security Procedure.
3. ACCOUNT NUMBERS: State Street shall process all payment orders on the basis
of the account number contained in the payment order. In the event of a
discrepancy between any name indicated on the payment order and the account
number, the account number shall take precedence and govern. Financial
institutions that receive payment orders initiated by State Street at the
instruction of the Client may also process payment orders on the basis of
account numbers, regardless of any name included in the payment order. State
Street will also rely on any financial institution identification numbers
included in any payment order, regardless of any financial institution name
included in the payment order.
4. REJECTION: State Street reserves the right to decline to process or delay the
processing of a payment order which (a) is in excess of the collected balance in
the account to be charged at the time of State Street's receipt of such payment
order; (b) if initiating such payment order would cause State Street, in State
Street's sole judgment, to exceed any volume, aggregate dollar, network, time,
credit or similar limits upon wire transfers which are applicable to State
Street; or (c) if State Street, in good faith, is unable to satisfy itself that
the transaction has been properly authorized.
5. CANCELLATION OR AMENDMENT: State Street shall use reasonable efforts to act
on all authorized requests to cancel or amend payment orders received in
compliance with the Security Procedure provided that such requests are received
in a timely manner affording State Street reasonable opportunity to act.
However, State Street assumes no liability if the request for amendment or
cancellation cannot be satisfied.
6. ERRORS: State Street shall assume no responsibility for failure to detect any
erroneous payment order provided that State Street complies with the payment
order instructions as received and State Street complies with the Security
Procedure. The Security Procedure is established for the purpose of
authenticating payment orders only and not for the detection of errors in
payment orders.
7. INTEREST AND LIABILITY LIMITS: State Street shall assume no responsibility
for lost interest with respect to the refundable amount of any unauthorized
payment order, unless State Street is notified of the unauthorized payment order
within thirty (30) days of notification by State Street of the acceptance of
such payment order. In no event shall State Street be liable for special,
indirect or consequential damages, even if advised of the possibility of such
damages and even for failure to execute a payment order.
8. AUTOMATED CLEARING HOUSE ("ACH") CREDIT ENTRIES/PROVISIONAL PAYMENTS: When a
Client initiates or receives ACH credit and debit entries pursuant to these
Guidelines and the rules of the National Automated Clearing House Association
and the New England Clearing House Association, State Street will act as an
Originating Depository Financial Institution and/or Receiving Depository
Institution, as the case may be, with respect to such entries. Credits given by
State Street with respect to an ACH credit entry are provisional until State
Street receives final settlement for such entry from the Federal Reserve Bank.
If State Street does not receive such final settlement, the Client agrees that
State Street shall receive a refund of the amount credited to the Client in
connection with such entry, and the party making payment to the Client via such
entry shall not be deemed to have paid the amount of the entry.
9. CONFIRMATION STATEMENTS: Confirmation of State Street's execution of payment
orders shall ordinarily be provided within 24 hours. Notice may be delivered
through State Street's proprietary information systems, such as, but not limited
to Horizon and GlobalQuest(R), account statements, advices, or by facsimile or
callback. The Client must report any objections to the execution of a payment
order within 30 days.
FUNDS TRANSFER ADDENDUM
[LOGO OF STATE STREET]
10. LIABILITY ON FOREIGN ACCOUNTS: State Street shall not be required to repay
any deposit made at a non-U.S. branch of State Street, or any deposit made with
State Street and denominated in a non-U.S. dollar currency, if repayment of such
deposit or the use of assets denominated in the non-U.S. dollar currency is
prevented, prohibited or otherwise blocked due to: (a) an act of war,
insurrection or civil strife; (b) any action by a non-U.S. government or
instrumentality or authority asserting governmental, military or police power of
any kind, whether such authority be recognized as a defacto or a dejure
government, or by any entity, political or revolutionary movement or otherwise
that usurps, supervenes or otherwise materially impairs the normal operation of
civil authority; or(c) the closure of a non-U.S. branch of State Street in order
to prevent, in the reasonable judgment of State Street, harm to the employees or
property of State Street. The obligation to repay any such deposit shall not be
transferred to and may not be enforced against any other branch of State Street.
The foregoing provisions constitute the disclosure required by Massachusetts
General Laws, Chapter 167D, Section 36.
While State Street is not obligated to repay any deposit made at a non-U.S.
branch or any deposit denominated in a non-U.S. currency during the period in
which its repayment has been prevented, prohibited or otherwise blocked, State
Street will repay such deposit when and if all circumstances preventing,
prohibiting or otherwise blocking repayment cease to exist.
11. MISCELLANEOUS: State Street and the Client agree to cooperate to attempt to
recover any funds erroneously paid to the wrong party or parties, regardless of
any fault of State Street or the Client, but the party responsible for the
erroneous payment shall bear all costs and expenses incurred in trying to effect
such recovery. These Guidelines may not be amended except by a written agreement
signed by the parties.
FUNDS TRANSFER ADDENDUM
[LOGO OF STATE STREET]
SECURITY PROCEDURE(S) SELECTION FORM
Please select one or more of the funds transfer security procedures indicated
below.
[X] SWIFT
SWIFT (Society for Worldwide Interbank Financial Telecommunication) is a
cooperative society owned and operated by member financial institutions that
provides telecommunication services for its membership. Participation is limited
to securities brokers and dealers, clearing and depository institutions,
recognized exchanges for securities, and investment management institutions.
SWIFT provides a number of security features through encryption and
authentication to protect against unauthorized access, loss or wrong delivery of
messages, transmission errors, loss of confidentiality and fraudulent changes to
messages. SWIFT is considered to be one of the most secure and efficient
networks for the delivery of funds transfer instructions. Selection of this
security procedure would be most appropriate for existing SWIFT members.
[ ] STANDING INSTRUCTIONS
Standing Instructions may be used where funds are transferred to a broker on the
Client's established list of brokers with which it engages in foreign exchange
transactions. Only the date, the currency and the currency amount are variable.
In order to establish this procedure, State Street will send to the Client a
list of the brokers that State Street has determined are used by the Client. The
Client will confirm the list in writing, and State Street will verify the
written confirmation by telephone. Standing Instructions will be subject to a
mutually agreed upon limit. If the payment order exceeds the established limit,
the Standing Instruction will be confirmed by telephone prior to execution.
[ ] REMOTE BATCH TRANSMISSION
Wire transfer instructions are delivered via Computer-to-Computer (CPU-CPU) data
communications between the Client and State Street. Security procedures include
encryption and or the use of a test key by those individuals authorized as
Automated Batch Verifiers.
Clients selecting this option should have an existing facility for completing
CPU-CPU transmissions. This delivery mechanism is typically used for high-volume
business.
[ ] GLOBAL HORIZON INTERCHANGE(SM) FUNDS TRANSFER SERVICE
Global Horizon Interchange Funds Transfer Service (FTS) is a State Street
proprietary microcomputer-based wire initiation system. FTS enables Clients to
electronically transmit authenticated Fedwire, CHIPS or internal book transfer
instructions to State Street.
This delivery mechanism is most appropriate for Clients with a low-to-medium
number of transactions (5-75 per day), allowing Clients to enter, batch, and
review wire transfer instructions on their PC prior to release to State Street.
[X] TELEPHONE CONFIRMATION (CALLBACK)
Telephone confirmation will be used to verify all non-repetitive funds transfer
instructions received via untested facsimile or phone. This procedure requires
Clients to designate individuals as authorized initiators and authorized
verifiers. State Street will verify that the instruction contains the signature
of an authorized person and prior to execution, will contact someone other than
the originator at the Client's location to authenticate the instruction.
Selection of this alternative is appropriate for Clients who do not have the
capability to use other security procedures.
[X] REPETITIVE WIRES
For situations where funds are transferred periodically (minimum of one
instruction per calendar quarter) from an existing authorized account to the
same payee (destination bank and account number) and only the date and currency
amount are variable, a repetitive wire may be implemented. Repetitive wires will
be subject to a mutually agreed upon limit. If the payment order exceeds the
established limit, the instruction will be confirmed by telephone prior to
execution. Telephone confirmation is used to establish this process. Repetitive
wire instructions must be reconfirmed annually.
This alternative is recommended whenever funds are frequently transferred
between the same two accounts.
[ ] TRANSFERS INITIATED BY FACSIMILE
The Client faxes wire transfer instructions directly to State Street Mutual Fund
Services. Standard security procedure requires the use of a random number test
key for all transfers. Every six months the Client receives test key logs from
State Street. The test key contains alpha-numeric characters, which the Client
puts on each document faxed to State Street. This procedure ensures all wire
instructions received via fax are authorized by the Client.
We provide this option for Clients who wish to batch wire instructions and
transmit these as a group to State Street Mutual Fund Services once or several
times a day.
FUNDS TRANSFER ADDENDUM
[LOGO OF STATE STREET]
[ ] INSTRUCT
Instruct is a State Street web-based application designed to provide
internet-enabled remote access that allows for the capturing, verification and
processing of various instruction types, including securities, cash and foreign
exchange transactions. Instruct is designed using industry standard formats to
facilitate straight-through processing. Instruct provides a number of security
features through user entitlements, industry standard encryption protocols,
digital security certificates and multiple tiers of user authentication
requirements.
[ ] SECURE TRANSPORT
Secure Transport is a file transfer application based upon the Secure File
Transfer Protocol standard that is designed to enable State Street clients/
investment managers to send file based transfer and transaction instructions
over the internet. Secure Transport features multi-factor authenticators such as
SecurID and digital certificates, and incorporates industry-standard encryption
protocols.
[ ] AUTOMATED CLEARING HOUSE (ACH)
State Street receives an automated transmission or a magnetic tape from a Client
for the initiation of payment (credit) or collection (debit) transactions
through the ACH network. The transactions contained on each transmission or tape
must be authenticated by the Client. Clients using ACH must select one or more
of the following delivery options:
[ ] GLOBAL HORIZON INTERCHANGE AUTOMATED CLEARING HOUSE SERVICE
Transactions are created on a microcomputer, assembled into batches and
delivered to State Street via fully authenticated electronic transmissions in
standard NACHA formats.
[ ] Transmission from Client PC to State Street Mainframe with Telephone
Callback
[ ] Transmission from Client Mainframe to State Street Mainframe with Telephone
Callback
[ ] Transmission from DST Systems to State Street Mainframe with Encryption
[ ] Magnetic Tape Delivered to State Street with Telephone Callback
State Street is hereby instructed to accept funds transfer instructions only via
the delivery methods and security procedures indicated. The selected delivery
methods and security procedure(s) will be effective August 17, 2009 for payment
orders initiated by our organization.
KEY CONTACT INFORMATION
Whom shall we contact to implement your selection(s)?
CLIENT OPERATIONS CONTACT ALTERNATE CONTACT
Xxxxxx XxXxxxx Xxxxx Xxxxxxx
000 Xxxxxxxx Xxxxxx 000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000 Xxxxxx, XX 00000-0000
000-000-0000 (Telephone) 000-000-0000 (Telephone)
000-000-0000 (Facsimile) 000-000-0000 (Facsimile)
INSTRUCTION(S)
TELEPHONE CONFIRMATION
FUND See wave conversion timeline
INVESTMENT ADVISER
---------------------------
AUTHORIZED INITIATORS
Please Type or Print
Please provide a listing of Fund officers or other individuals who are currently
authorized to INITIATE wire transfer instructions to State Street: PLEASE USE
PREVIOUSLY PROVIDED LIST OF AUTHORIZED PERSONS (FMG)
NAME TITLE (Specify whether position SPECIMEN SIGNATURE
is with Fund or Investment
Adviser)
PLEASE SEE ATTACHED AUTHORIZED SIGNER LISTS FOR IMS.
AUTHORIZED VERIFIERS
Please Type or Print
Please provide a listing of Fund officers or other individuals who will be
CALLED BACK to verify the initiation of repetitive wires of $10 million or more
and all non-repetitive wire instructions:
NAME CALLBACK PHONE NUMBER DOLLAR LIMITATION (IF ANY)
PLEASE USE PREVIOUSLY PROVIDED LIST OF AUTHORIZED ADMINISTRATIVE PERSONS (FMG)
PLEASE SEE ATTACHED AUTHORIZED SIGNERS LISTS FOR IMS.
REMOTE ACCESS SERVICES ADDENDUM
TO MASTER CUSTODIAN AGREEMENT
ADDENDUM to that certain Master Custodian Agreement dated as of July 1,
2009 (the "Custodian Agreement") by and among each management investment company
identified on Appendix A thereto or made subject thereto pursuant to Section
19.5 thereof (each, a "Customer") and State Street Bank and Trust Company,
including its subsidiaries and affiliates ("State Street").
State Street has developed and/or utilizes proprietary or third-party
accounting and other systems in conjunction with the services that State Street
provides to the Customer. In this regard, State Street maintains certain
information in databases under its ownership and/or control that it makes
available to its customers (the "Remote Access Services").
The Services
State Street agrees to provide the Customer, and its designated investment
advisors, consultants or other third parties who agree to abide by the terms of
this Addendum ("Authorized Designees") with access to State Street propriety and
third-party systems as may be offered by State Street from time to time (each, a
"System") on a remote basis.
Security Procedures
The Customer agrees to comply, and to cause its Authorized Designees to comply,
with remote access operating standards and procedures and with user
identification or other password control requirements and other security devices
and procedures as may be issued or required from time to time by State Street or
its third-party vendors for use of the System and access to the Remote Access
Services. The Customer is responsible for any use and/or misuse of the System
and Remote Access Services by its Authorized Designees. The Customer agrees to
advise State Street immediately in the event that it learns or has reason to
believe that any person to whom it has given access to the System or the Remote
Access Services has violated or intends to violate the terms of this Addendum
and the Customer will cooperate with State Street in seeking injunctive or other
equitable relief. The Customer agrees to discontinue use of the System and
Remote Access Services, if requested, for any security reasons cited by State
Street and State Street may restrict access of the System and Remote Access
Services by the Customer or any Authorized Designee for security reasons or
noncompliance with the terms of this Addendum at any time.
Fees
Fees and charges for the use of the System and the Remote Access Services and
related payment terms shall be as set forth in the fee schedule in effect from
time to time between the parties. The Customer shall be responsible for any
tariffs, duties or taxes imposed or levied by any government or governmental
agency by reason of the transactions contemplated by this Addendum, including,
without limitation, federal, state and local taxes, use, value added and
personal property taxes (other than income, franchise or similar taxes which may
be imposed or assessed against State Street). Any claimed exemption from such
tariffs, duties or taxes shall be supported by proper documentary evidence
delivered to State Street.
Proprietary Information/Injunctive Relief
The System and Remote Access Services described herein and the databases,
computer programs, screen formats, report formats, interactive design
techniques, formulae, processes, systems, software, know- how, algorithms,
programs, training aids, printed materials, methods, books, records, files,
documentation and other information made available to the Customer by State
Street as part of the Remote Access Services and through the use of the System
and all copyrights, patents, trade secrets and other proprietary and
intellectual property
ii
rights of State Street and third-party vendors related thereto are the
exclusive, valuable and confidential proprietary property of State Street and
its relevant licensors and third-party vendors (the "Proprietary Information").
The Customer agrees on behalf of itself and its Authorized Designees to keep the
Proprietary Information confidential and to limit access to its employees and
Authorized Designees (under a similar duty of confidentiality) who require
access to the System for the purposes intended. The foregoing shall not apply to
Proprietary Information in the public domain or required by law to be made
public.
The Customer agrees to use the Remote Access Services only in connection with
the proper purposes of this Addendum. The Customer will not, and will cause its
employees and Authorized Designees not to, (i) permit any third party to use the
System or the Remote Access Services, (ii) sell, rent, license or otherwise use
the System or the Remote Access Services in the operation of a service bureau or
for any purpose other than as expressly authorized under this Addendum, (iii)
use the System or the Remote Access Services for any fund, trust or other
investment vehicle without the prior written consent of State Street, or (iv)
allow or cause any information transmitted from State Street's databases,
including data from third-party sources, available through use of the System or
the Remote Access Services, to be published, redistributed or retransmitted for
other than use for or on behalf of the Customer, as State Street's customer.
The Customer agrees that neither it nor its Authorized Designees will modify the
System in any way, enhance, copy or otherwise create derivative works based upon
the System, nor will the Customer or its Authorized Designees reverse engineer,
decompile or otherwise attempt to secure the source code for all or any part of
the System.
The Customer acknowledges that the disclosure of any Proprietary Information, or
of any information which at law or equity ought to remain confidential, will
immediately give rise to continuing irreparable injury to State Street or its
third-party licensors and vendors inadequately compensable in damages at law and
that State Street shall be entitled to obtain immediate injunctive relief
against the breach or threatened breach of any of the foregoing undertakings, in
addition to any other legal remedies which may be available.
Limited Warranties
State Street represents and warrants that it is the owner of and/or has the
right to grant access to the System and to provide the Remote Access Services
contemplated herein. Because of the nature of computer information technology
including, but not limited to the use of the Internet, and the necessity of
relying upon third-party sources, and data and pricing information obtained from
third parties, the System and Remote Access Services are provided "AS IS"
without warranty express or implied including as to availability of the System,
and the Customer and its Authorized Designees shall be solely responsible for
the use of the System and Remote Access Services and investment decisions,
results obtained, regulatory reports and statements produced using the Remote
Access Services. State Street and its relevant licensors and third-party vendors
will not be liable to the Customer or its Authorized Designees for any direct or
indirect, special, incidental, punitive or consequential damages arising out of
or in any way connected with the System or the Remote Access Services, nor shall
any party be responsible for delays or nonperformance under this Addendum
arising out of any cause or event beyond such party's control.
EXCEPT AS EXPRESSLY SET FORTH IN THIS ADDENDUM, STATE STREET, FOR ITSELF AND ITS
RELEVANT LICENSORS AND THIRD-PARTY VENDORS EXPRESSLY DISCLAIMS ANY AND ALL
WARRANTIES CONCERNING THE SYSTEM AND THE SERVICES TO BE RENDERED HEREUNDER,
WHETHER EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF
MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE.
iii
Infringement
State Street will defend or, at its option, settle any claim or action brought
against the Customer to the extent that it is based upon an assertion that
access to or use of State Street proprietary systems by the Customer under this
Addendum constitutes direct infringement of any United States patent or
copyright or misappropriation of a trade secret, provided that the Customer
notifies State Street promptly in writing of any such claim or proceeding,
cooperates with State Street in the defense of such claim or proceeding and
allows State Street sole control over such claim or proceeding. Should the State
Street proprietary system or any part thereof become, or in State Street's
opinion be likely to become, the subject of a claim of infringement or the like
under any applicable patent, copyright or trade secret laws, State Street shall
have the right, at State Street's sole option, to (i) procure for the Customer
the right to continue using the State Street proprietary system, (ii) replace or
modify the State Street proprietary system so that the State Street proprietary
system becomes noninfringing, or (iii) terminate this Addendum without further
obligation. This section constitutes the sole remedy to the Customer for the
matters described in this section.
Termination
Either party to the Custodian Agreement may terminate this Addendum (i) for any
reason by giving the other party at least one-hundred and eighty (180) days
prior written notice in the case of notice of termination by State Street to the
Customer or thirty (30) days notice in the case of notice from the Customer to
State Street of termination, or (ii) immediately for failure of the other party
to comply with any material term and condition of the Addendum by giving the
other party written notice of termination. This Addendum shall in any event
terminate within ninety (90) days after the termination of any service agreement
applicable to the Customer. The Customer's use of any third-party System is
contingent upon its compliance with any terms of use of such system imposed by
such third party and State Street's continued access to, and use of, such
third-party system. In the event of termination, the Customer will return to
State Street all copies of documentation and other confidential information in
its possession or in the possession of its Authorized Designees and immediately
cease access to the System and Remote Access Services. The foregoing provisions
with respect to confidentiality and infringement will survive termination for a
period of three (3) years.
Miscellaneous
This Addendum constitutes the entire understanding of the parties to the
Custodian Agreement with respect to access to the System and the Remote Access
Services. This Addendum cannot be modified or altered except in a writing duly
executed by each of State Street and the Customer and shall be governed by and
construed in accordance with the laws of The Commonwealth of Massachusetts.
By its execution of the Custodian Agreement, the Customer: (a) confirms to State
Street that it informs all Authorized Designees of the terms of this Addendum;
(b) accepts responsibility for its and its Authorized Designees' compliance with
the terms of this Addendum; and (c) indemnifies and holds State Street harmless
from and against any and all costs, expenses, losses, damages, charges, counsel
fees, payments and liabilities arising from any failure of the Customer or any
of its Authorized Designees to abide by the terms of this Addendum.
iv
