Exhibit (g)(1)
AMENDED AND RESTATED MASTER CUSTODIAN AGREEMENT
This Agreement between each entity set forth on Appendix A hereto (as
such Appendix A may be amended from time to time (each such entity and each
entity made subject to this Agreement in accordance with Section 18, referred
to herein individually as the "Fund" and collectively as the "Funds"), and
STATE STREET BANK and TRUST COMPANY, a Massachusetts trust company (the
"Custodian").
WITNESSETH:
WHEREAS, each of the Funds has previously entered into a Custodian
Contract with the Custodian;
WHEREAS, each of the Funds desire to replace such existing Custodian
Contracts with this amended and restated Master Custodian Agreement;
WHEREAS, the Funds are registered under the Investment Company Act of
1940 and each Fund appointed the Bank to act as its Custodian;
WHEREAS, the Funds may be authorized to issue shares in separate
series, with each such series representing interests in a separate portfolio
of securities and other assets; and
WHEREAS, each Fund so authorized intends that this Agreement be
applicable to each of its series set forth on Appendix A hereto (as such
Appendix A may be amended from time to time) (each or all of each series, as
the case may be, a "Portfolio" or "Portfolios").
TOO, 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
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Each Fund hereby employs the Custodian as the custodian of the assets
of its 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 such Portfolios,
and all payments of income, payments of principal or capital distributions
received by it with respect to all securities owned by such Portfolio(s)from
time to time, and the cash consideration received by it for such new or
treasury shares of beneficial interest of each Fund representing interests in
its Portfolios ("Shares") as may be issued or sold from time to time. The
Custodian shall not be responsible for any property of a Portfolio held or
received by the Portfolio and not delivered to the Custodian.
Upon receipt of "Proper Instructions" (as such term is defined in
Section 6 hereof), 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 directors or the board of trustees of the applicable Fund (as appropriate
and in each case, the "Board"). The Custodian may employ as sub-custodian for
each Fund's foreign securities on behalf of the applicable Portfolio(s)the
foreign banking institutions and foreign securities depositories designated in
Schedules A and B hereto but only in accordance with the applicable provisions
of Sections 3 and 4. The Custodian shall have no more or less responsibility
or liability to the Fund on account of any actions or omissions of any
sub-custodian so employed than any such sub-custodian has to the Custodian.
SECTION 2. DUTIES OF THE CUSTODIAN WITH RESPECT TO PROPERTY
OF THE FUND HELD BY THE CUSTODIAN IN THE UNITED STATES
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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 securities which are maintained pursuant to
Section 2.8 in a clearing agency which acts as a securities depository or in a
book-entry system authorized by the U.S. Department of the Treasury (each, a
"U.S. Securities System").
SECTION 2.2 Delivery of Securities. The Custodian shall release and
deliver domestic securities owned by a Portfolio held by the Custodian or in a
U.S. Securities System account of the Custodian 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 ITS. Securities System,
in accordance with the provisions of Section 2.8 hereof;
4) To the depository agent in connection with tender or other
similar offers for securities of the Portfolio;
5) To the issuer thereof or its agent when such securities are
called, redeemed, retired or otherwise become payable; provided
that, in any such case, the cash or other consideration is to be
delivered to 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 l; 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, but only against receipt of adequate collateral
as agreed upon from time to time by the Custodian and the Fund
on behalf of the Portfolio, which may be in the form of cash or
obligations issued by the United States government, its agencies
or instrumentalities, except that in connection with any loans
for which collateral is to be credited to the 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;
11) For delivery as security in connection with any borrowing by the
Fund on behalf of the Portfolio requiring a pledge of assets by
the Fund on behalf of the Portfolio, but only against receipt of
amounts borrowed;
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 National
Association of Securities Dealers, Inc. ("NASD"), relating to
compliance with the rules of The Options Clearing Corporation
and of any registered national securities exchange, or of any
similar organization or organizations, regarding escrow or other
arrangements in connection with transactions by the Portfolio of
the Fund;
13) For delivery in accordance with the provisions of any agreement
among the 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 ("CFTC') and/or any
contract market, or any similar organization or organizations,
regarding account deposits in connection with transactions by
the Portfolio of the Fund;
14) Upon receipt of instructions from the transfer agent for the
Fund (the "Transfer Agent") for delivery to such Transfer Agent
or to the holders of Shares in connection with distributions in
kind, as may be described from time to time in the currently
effective prospectus and statement of additional information of
the Fund related to the Portfolio (the "Prospectus"), in
satisfaction of requests by holders of Shares for repurchase or
redemption; and
15) For any other proper purpose, but only upon receipt of Proper
Instructions from the Fund on behalf of the applicable Portfolio
specifying the securities of the Portfolio to be delivered,
setting forth the purpose for which such delivery is to be made,
declaring such purpose to be a proper purpose, and naming 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 a Portfolio or in the name of any nominee of a Fund on behalf of a
Portfolio or of any nominee of the Custodian which nominee shall be assigned
exclusively to a Portfolio, unless a Fund has authorized in writing the
appointment of a nominee to be used in common with other registered investment
companies having the same investment adviser as the 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 a 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
Investment Company Act of 1940, as amended (the "1940 Act"). Funds held by the
Custodian for a Portfolio maybe 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. 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 bylaw 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 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 repurchase agreements entered into between
the Fund on behalf of the Portfolio and the Custodian, or
another bank, or a broker-dealer which is a member of NASD, (i)
against delivery of the securities either in certificate form or
through an entry crediting the Custodian's account at the
Federal Reserve Bank with such securities or (ii) against
delivery of the receipt evidencing purchase by the 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 (d) 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 5 hereof;
4) For the payment of any expense or liability incurred by the
Portfolio, including but not limited to the following payments
for the account of the Portfolio: interest, taxes, management,
accounting, transfer agent and legal fees, and operating
expenses of me 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 distributions on Shares declared pursuant
to the governing documents of the Fund;
6) For payment of the amount of distributions received in respect
of securities sold short; and
7) For any other proper purpose, but only upon receipt of Proper
Instructions from the Fund on behalf of the Portfolio specifying
the amount of such payment, setting forth the purpose for which
such payment is to be made, declaring such purpose to be a
proper purpose, and naming the person or persons to whom such
payment is to be made.
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
mist 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 tine direct; provided, however, that the
appointment of any agent shall not relieve the Custodian of its
responsibilities or liabilities hereunder.
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 subject to the following provisions:
1) The Custodian may keep securities of the Portfolio in a U.S.
Securities System provided that such securities are represented
in an account of the Custodian in the U.S. Securities System
(the "U.S. Securities System Account") which account shall not
include any assets of the Custodian other than assets held as a
fiduciary, custodian or otherwise for customers;
2) The records of the Custodian with respect to securities of the
Portfolio which are maintained in a U.S. Securities System shall
identify by book-entry those securities belonging to the
Portfolio;
3) The Custodian shall pay for securities purchased for the account
of the Portfolio upon (i) receipt of advice from the U.S.
Securities System that such securities have been transferred to
the U.S. Securities System Account, and (ii) the making of an
entry on the records of the Custodian to reflect such payment
and transfer for the account of the Portfolio. The Custodian
shall transfer securities sold for the account of the Portfolio
upon (i)receipt of advice from the U.S. Securities System that
payment for such securities has been transferred to the U.S.
Securities System Account, and (ii) the making of an entry on
the records of the Custodian to reflect such transfer and
payment for the account of the Portfolio. Copies of all advices
from the U.S. Securities System of transfers of securities for
the account of the Portfolio shall identify the Portfolio, be
maintained for the Portfolio by the Custodian and be provided to
the Fund at its request. Upon request, the Custodian shall
furnish the Fund on behalf of the Portfolio confirmation of each
transfer to or from the account of the Portfolio in the form of
a written advice or notice and shall furnish to the Fund on
behalf of the Portfolio copies of daily transaction sheets
reflecting each day's transactions in the U.S. Securities System
for the account of the Portfolio;
4) The Custodian shall provide the Fund with any report obtained by
the Custodian on the U.S. Securities System's accounting system,
internal accounting control and procedures for safeguarding
securities deposited in the U.S. Securities System;
5) Anything to the contrary in this Agreement notwithstanding, the
Custodian shall be liable to the Fund for the benefit of the
Portfolio for any loss or damage to the Portfolio resulting from
use of the U.S. Securities System by reason of any negligence,
misfeasance or misconduct of the Custodian or any of its agents
or of any of its or their employees or from failure of the
Custodian or any such agent to enforce effectively such rights
as it may have against the U.S. Securities System; at the
election of the Fund, it shall be entitled to be subrogated to
the rights of the Custodian with respect to any claim against
the U.S. Securities System or any other person which the
Custodian may have as a consequence of any such loss or damage
if and to the extent that the Portfolio has not been made whole
for any such loss or damage.
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, (i)in accordance with the provisions of any
agreement among the applicable Fund on behalf of the Portfolio, the Custodian
and a broker-dealer registered under the Exchange Act and a member of the NASD
(or any futures commission merchant registered under the Commodity Exchange
Act), relating to compliance with the rules of The Options Clearing
Corporation and of any registered national securities exchange (or the (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, (ii) 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, (iii) 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 SEC, or interpretative opinion of the staff of
the SEC, relating to the maintenance of segregated accounts by registered
investment companies, and (iv) for other proper trust purposes, but only, in
the case of clause (iv),upon receipt of Proper Instructions from the Fund on
behalf of the applicable Portfolio, setting forth the purpose or purposes of
such segregated account and declaring such purpose(s) to be a proper purpose.
SECTION 2.10 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 2.11 Proxies. The Custodian shall, with respect to the
domestic securities held hereunder, cause to be promptly executed by the
registered holder of such securities, if the securities are registered
otherwise than in the name of the Portfolio or a nominee of the Portfolio, all
proxies, without indication of the manner in which such proxies are to be
voted, and shall promptly deliver to the Portfolio such proxies, all proxy
soliciting materials and all notices relating to such securities.
SECTION 2.12 Communications Relating to Portfolio Securities. Subject
to the provisions of 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 Portfolio) received by
the Custodian from issuers of the securities being held for the Portfolio.
With respect to tender or exchange offers, me Custodian shall transmit
promptly to the Portfolio 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. If the Portfolio
desires to take action with respect to any tender offer, exchange offer or any
other similar transaction, the Portfolio shall notify the Custodian at least
three business days prior to the date on which the Custodian is to take such
action.
SECTION 3. PROVISIONS RELATING To RULES 17F-5 AND 17F-7
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SECTION 3.1 Definitions. Capitalized terms in this Section 3 shall
have the following 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 U.S. Securities and Exchange Commission
(the "SEC")), or a foreign branch of a Bank (as defined in Section 2(a)(5) of
the 0000 Xxx) meeting the requirements of a custodian under Section 17(f) of
the 1940 Act; the term does not include any Eligible Securities Depository.
"Eligible Securities Depository" has the meaning set forth in section
(b)(1) of Rule 17f-7.
"Foreign Assets" means any of the Portfolio's 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
Portfolio's transactions in such investments.
"Foreign Custody Manager" has the meaning set forth in section (a)(2)
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. The
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 the 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 the Fund, on behalf of
the Portfolios, of the applicable account opening requirements for such
country, the Foreign Custody Manager shall be deemed to have been delegated by
the Board on behalf of the Portfolios responsibility as Foreign Custody
Manager with respect to that country and to have accepted such delegation.
Execution of this Agreement by the Fund shall be deemed to be a Proper
Instruction to open an account, or to place or maintain Foreign Assets, in
each country listed on Schedule A in which the Custodian has previously placed
or currently maintains Foreign Assets pursuant to the terms of the Agreement.
Following the receipt of Proper Instructions directing the Foreign Custody
Manager to close the account of a Portfolio with the Eligible Foreign
Custodian selected by the Foreign Custody Manager in a designated country, the
delegation by the Board on behalf of the Portfolios to 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 of the Portfolios with respect to that country.
The Foreign Custody Manager may withdraw its acceptance of
delegated responsibilities with respect to a designated country upon written
notice to 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
shall have no further responsibility 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 casein 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 in accordance with Rule 17f-(c)(3), (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 me 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 We end of the
calendar quarter in which an amendment to such Schedule has occurred. The
Foreign Custody Manager shall make written reports notifying the Board of any
other material change in the foreign custody arrangements of the Portfolios
described in this Section 3.2 after the occurrence of the material change.
3.2.6 Standard of Care as Foreign Custody Manager 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 the Fund that it is a U.S. Bank as defined in
section (a)(7) of Rule 171-5. The Fund represents to the Custodian that the
Board has determined that it is reasonable for the Board to rely on the
Custodian to perform the responsibilities delegated pursuant to this Contract
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. The 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 anytime, without penalty, by written
notice from the terminating party to the non-terminating xxxxx. 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 HELD OUTSIDE THE UNITED STATES
------------------------------------------------
SECTION 4.1 Definitions. Capitalized terms in this Section 4 shall
have the following 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 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
SubCustodian shall release and deliver foreign securities of the NORM 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 me 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 from the delivery of such securities prior
to receiving payment for such securities except as may arise
from the Foreign Sub-Custodian's own negligence or willful
misconduct;
(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
the Portfolios requiring a pledge of assets by the
Portfolios;
(x) in connection with trading in options and futures contracts,
including delivery as original margin and variation margin;
(xi) in connection with the lending of foreign securities; and
(xii) for any other purpose, but only upon receipt of Proper
Instructions specifying the foreign securities to be
delivered and naming the person or persons to whom delivery
of such securities shall be made.
4.4.2 Payment of Portfolio Monies. Upon receipt of Proper
Instructions, which may be continuing instructions when deemed appropriate by
the parties, the Custodian shall pay out, or direct the respective Foreign
Sub-Custodian or the respective Foreign Securities System to pay out, monks 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;
(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 Contract, 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) for payment of part or all of the dividends received in
respect of securities sold short;
(vii) in connection with the borrowing or lending of foreign
securities; and
(viii) for any other purpose, but only upon receipt of Proper
Instructions specifying the amount of such payment and
naming the person or persons to whom such payment is to be
made.
4.4.3 Market Conditions. Notwithstanding any provision 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 the Board the information with respect
to custody and settlement practices in countries in which the Custodian
employs a Foreign Sub-Custodian, including without limitation information
relating to Foreign Securities Systems, 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 the Board
being provided with substantively less information than had been previously
provided hereunder.
SECTION 4.5 Registration of Foreign Securities. The foreign
securities maintained in the custody of a Foreign Sub-Custodian (other than
bearer securities) shall be registered in the name of the applicable Portfolio
or in the name of the Custodian or in the name of any Foreign Sub-Custodian or
in the name of any nominee of the foregoing, and the 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 Contract 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 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 will use reasonable
commercial efforts to facilitate the exercise of voting and other shareholder
rights, subject always to the laws, regulations and practical constraints that
may exist in the country where such securities are issued. The 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 the Fund to exercise shareholder rights.
SECTION 4.9 Communications Relating to Foreign Securities. The
Custodian shall transmit promptly to the 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, me Custodian shall transmit promptly to the 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 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.
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 the Fund's election, the Portfolios shall be entitled
to be subrogated to the rights of We 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 the 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 the Fund to notify the Custodian of the obligations
imposed on the Fund with respect to the applicable Portfolios) or the
Custodian as custodian of the applicable 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 the Fund has provided such
information.
SECTION 4.12 Liability of Custodian. Except as may arise from the
Custodian's own negligence or willful misconduct or the negligence or willful
misconduct of a Sub-Custodian, the Custodian shall be without liability to the
Fund for any loss, liability, claim or expense resulting from or caused by
anything which is part of Country Risk.
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 the 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. PAYMENTS FOR SALES OR REPURCHASES OR REDEMPTIONS OF SHARES
----------------------------------------------------------
The Custodian shall receive from the distributor for the Shares or
from the Transfer Agent and deposit into the account of the appropriate
Portfolio such payments as are received for Shares thereof issued or sold from
time to time by 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 a Fund and the Custodian.
SECTION 6. PROPER INSTRUCTIONS
-------------------
Proper Instructions as used throughout this Agreement means a writing
signed or initialed by two or more persons as the applicable Board shall have
from time to time authorized. Each such writing shall set forth the specific
transaction or type of transaction involved, including a specific statement of
the purpose for which such action is requested. Oral instructions will be
considered Proper Instructions if the Custodian reasonably believes them to
have been given by two or more persons authorized to give such instructions
with respect to the transaction involved. Each Fund shall cause all oral
instructions to be confirmed in writing. Proper Instructions may include
communications effected directly between electro-mechanical or electronic
devices provided that each Fund and the Custodian agree to security
procedures, including but not limited to, the security procedures selected by
the applicable Fund in the Funds Transfer Addendum attached hereto. For
purposes of this Section, Proper Instructions shall include instructions
received by the Custodian pursuant to any three-party agreement which requires
a segregated asset account in accordance with Section 2.10.
SECTION 7. ACTIONS PERMITTED WITHOUT EXPRESS AUTHORITY
-------------------------------------------
The Custodian may in its discretion, without express authority from
the 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 me Portfolio, checks,
drafts and other negotiable instruments; and
4) in general, attend to all non-discretionary details in
connection with the sale, exchange, substitution, purchase,
transfer and other dealings with the securities and property of
the Portfolio except as otherwise directed by the applicable
Board.
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 a Fund ("Certified
Resolution") as conclusive evidence (a) of the authority of any person to act
in accordance with such resolution or (b) of any determination or of any
action by the 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. 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 the applicable
Fund on behalf of the 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. 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.
SECTION 10. 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 the applicable 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 me
find and employees and agents of the SEC. The Custodian shall, at the request
of the applicable Fund, supply such 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.
SECTION 11. OPINION OF FUND'S INDEPENDENT ACCOUNTANT
----------------------------------------
The Custodian shall take all reasonable action, as the applicable
Fund on behalf of each Portfolio may from time to time request, to obtain from
year to year favorable opinions from such Fund's independent accountants with
respect to its activities hereunder in connection with the preparation of a
Fund's Form N-lA, and Form N-SAR or other annual reports to the SEC and with
respect to any other requirements thereof.
SECTION 12. 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 the 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,
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 13. 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 14 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. It shall be entitled to rely on and may act upon advice of counsel
(who may be counsel for a Fund) on all matters, and shall be without liability
for any action reasonably taken or omitted pursuant to such advice. Except as
may arise from the Custodian's own negligence or willful misconduct or the
negligence or willful misconduct of a subcustodian, the Custodian shall be
without liability to any Fund or Portfolio for any loss, liability, claim or
expense resulting from or caused by anything which is (A) pan of Country Risk
(as defined in Section 3 hereof), including without limitation
nationalization, expropriation, currency restrictions, or acts of war,
revolution, riots or terrorism, or (B) part of the "prevailing country risk"
of the Portfolios, as such term is used in SEC Release Nos. IC-22658; IS-1080
(May 12, 1997) or as such term or other similar terms are now or in the future
interpreted by the SEC or by the staff of the Division of Investment
Management thereof.
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 any Investment Advisor 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 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; (v) 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; (vi) delays or inability to perform its duties due to
any disorder in market infrastructure with respect to any particular security
or Securities System; and (vii) 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 (as defined in Section 4 hereof) 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 actor
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.
In no event shall the Custodian be liable for indirect, special or
consequential damages.
SECTION 15. EFFECTIVE PERIOD, TERMINATION AND AMENDMENT
-------------------------------------------
This Agreement shall become effective as of its execution, shall
continue in full force and effect until terminated as hereinafter provided,
may be amended at any time by mutual agreement of all parties hereto affected
thereby and may be terminated with respect to any xxxxx by such party by an
instrument in writing delivered or mailed, postage prepaid to the other
parties, such termination to take effect not sooner than sixty (60) days after
the date of such delivery or mailing; provided, however, that each Fund shall
not amend or terminate this Agreement in contravention of any applicable
federal or state regulations, or any provision of the Fund's Declaration of
Trust or Articles of Incorporation, as appropriate, and further provided, that
each Fund on behalf of one or more of the Portfolios may at any time by action
of its Board (i) substitute another bank or trust company for the Custodian by
giving notice as described above to the Custodian, or (ii) immediately
terminate this Agreement in the event of the appointment of a conservator or
receiver for the Custodian by the Comptroller of the Currency or upon the
happening of alike event at the direction of an appropriate regulatory agency
or court of competent jurisdiction.
Upon termination of the Agreement with respect to any Portfolio, such
Fund on behalf of each applicable Portfolio shall pay to the Custodian such
compensation as may be due as of We date of such termination and shall
likewise reimburse the Custodian for its costs, expenses and disbursements.
SECTION 16. SUCCESSOR CUSTODIAN
-------------------
If a successor custodian for one or more Funds or Portfolios shall be
appointed by the applicable Board, the Custodian shall, upon termination with
respect to the applicable Fund or Portfolio, deliver to such successor
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.
If no such successor custodian shall be appointed, the Custodian
shall, in like manner, upon receipt of a Certified Resolution, 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 written order designating a successor custodian
or Certified Resolution 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. 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 me date of termination hereof with
respect to any Fund or Portfolio owing to the failure of the relevant Fund to
procure the Certified Resolution to appoint a successor custodian, the
Custodian shall be entitled to fair compensation for its services during such
period as the Custodian retains possession of such securities, funds and other
properties and the provisions of this Agreement relating to the duties and
obligations of the Custodian shall remain in full force and effect.
SECTION 17. 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 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 patties and shall be annexed hereto, provided that no
such interpretive or additional provisions shall contravene any applicable
federal or state regulations or any provision of the Fund's Declaration of
Trust or Articles of Incorporation, as appropriate. No interpretive or
additional provisions made as provided in the preceding sentence shall be
deemed to be an amendment of this Agreement.
SECTION 18. ADDITIONAL FUNDS
----------------
In the event that any registered investment company sponsored or
managed by Gabelli Funds, LLC, in addition to those Funds listed at the time
on Appendix A attached hereto, desires to have the Custodian render services
as custodian under the terms hereof and the Custodian wishes to provide such
services, the parties will execute a revised Appendix A including such entity.
Upon execution thereof, such entity shall become a Fund hereunder and be bound
by all terms, conditions and provisions hereof.
SECTION 19. 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 20. 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 each Fund's assets.
SECTION 21. 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 xxxxx from time to time.
To the Fund: [FUND NAME]
*[address]
Attention: [contact]
Telephone: *
Telecopy: *
To the Custodian: STATE STREET BANK AND TRUST COMPANY
One Heritage Drive
Xxxxxx Xxxxxx Building JPB/2N
Xxxxx Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx, Fund Manager
Telephone: 000-000-0000
Telecopy: 617-*
Such notice, instruction or other instrument shall be deemed to have
been delivered 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, in the case of telex, telecopy or other electro-mechanical or
electronic method immediately on dispatch unless delivered outside normal
business hours, in which case it shall be deemed to have been received at the
next time after delivery when normal business hours commence. Evidence that
the notice was properly addressed, stamped and put into the post shall be
conclusive evidence of posting.
SECTION 22. REPRODUCTION OF DOCUMENTS
-------------------------
This Agreement and all schedules, addenda, exhibits, attachments and
amendments hereto may be reproduced by any photographic, photostatic,
microfilm, micro-card, miniature photographic or other similar process. The
par-ties hereto 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 23. DATA ACCESS SERVICES ADDENDUM
-----------------------------
The Custodian and each Fund agree to be bound by the terms of the
Data Access Services Addendum attached hereto.
SECTION 24. TRUSTEES/DIRECTORS
------------------
Neither the Trustees or the Directors nor the shareholders of the
applicable Fund will be personally liable under this Agreement.
SECTION 25. 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 the
Fund to indicate whether it authorizes the Custodian to provide the Fund's
name, address, and share position to requesting companies whose securities the
Fund owns. If the Fund tells the Custodian "no", the Custodian will not
provide this information to requesting companies. If the 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 fiends or accounts
established by the Fund. For the 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.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
IN WITNESS WHEREOF, each of the parties has caused this instrument to
be executed in its name and behalf by its duly authorized representative and
its seal to be hereunder affixed effective as of July 2, 2001.
FOR EACH OF THE FUNDS SET FORTH FUND SIGNATURE ATTESTED TO
ON APPENDIX A AS OF JULY 2, 2001 BY:
By: ___________________________ By: _________________________
Name: ___________________________ Name:________________________
Title:___________________________ Title: *[secretary/ass't secretary]
STATE STREET BANK AND TRUST COMPANY SIGNATURE ATTESTED TO BY
By: _____________________________ By: ___________________________
Name: Xxxxxx X. Xxxxxx Name: Xxxxxxx X. XxXxxxxx
--------------------------- ---------------------------
Title: Executive Vice President Title: Vice President
-------------------------- ---------------------------
Appendix A
Amended and Restated Master Custodian Agreement
The Gabelli Asset Fund
The Gabelli Blue Chip Value Fund
The Gabelli Convertible Securities Fund, Inc.
The Gabelli Global Multimedia Trust, Inc.
Gabelli Capital Series Funds, Inc.
Gabelli Equity Series Funds, Inc.
Gabelli Small Cap Growth Fund
Gabelli Equity Income Fund
Gabelli Global Series Funds, Inc.
Gabelli Global Telecommunications Fund
Gabelli Global Entertainment and Media Fund
Gabelli Global Growth Fund
Gabelli Global Convertible Securities Fund
Gabelli Global Interactive Couch Potato Fund
Gabelli Investor Funds, Inc.
Gabelli ABC Fund
Gabelli Gold Fund, Inc.
The Gabelli Growth Fund, Inc.
Gabelli International Growth Fund, Inc.
The Gabelli Xxxxxxx Fund
The Gabelli Utilities Fund
FOR THE ABOVE FUND PARTIES STATE STREET BANK AND TRUST COMPANY
By:_________________________ By: ____________________________
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
Date: July 2, 2001
