ADDENDUM TO CUSTODIAN AGREEMENT
*[date]
To: Liberty-Xxxxx Xxx Advisor Floating Rate Advantage Fund
Re: Remote Access Services
Dear Customer:
State Street Bank and Trust Company ("State Street") has developed and
utilizes proprietary accounting and other systems in conjunction with the
custodian services which we provide to you. In this regard, we maintain certain
information in databases under our control and ownership which we make available
to our customers (the "Remote Access Services").
The Services
State Street agrees to provide you, the Customer, and your designated
investment advisors, consultants or other third parties authorized by State
Street who agree to abide by the terms of this Agreement ("Authorized
Designees") with access to In~SightSM as described in Exhibit A (the "System")
on a remote basis for the purpose of obtaining and analyzing reports and
information.
Security Procedures
You agree to comply, and to cause your Authorized Designees to comply,
with remote access operating standards and procedures and with user
identification or other password control requirements and other security
procedures as may be issued from time to time by State Street for use of the
System and access to the Remote Access Services. You agree to advise State
Street immediately in the event that you learn or have reason to believe that
any person to whom you have given access to the System or the Remote Access
Services has violated or intends to violate the terms of this Agreement and you
will cooperate with State Street in seeking injunctive or other equitable
relief. You agree to discontinue use of the System and Remote Access Services,
if requested, for any security reasons cited by State Street.
Fees
Fees and charges for the use of the System and the Data Access
Services and related payment terms shall be as set forth in the Custody Fee
Schedule in effect from time to time between the parties (the "Fee Schedule").
You 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 Agreement, 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, knowhow, algorithms,
programs, training aids, printed materials, methods, books, records, files,
documentation and other information made available to you 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 rights of State Street
related thereto (the "Proprietary Information") are the exclusive, valuable and
confidential property of State Street and its relevant licensors. You agree on
behalf of yourself and your Authorized Designees to keep the Proprietary
Information confidential and to limit access to your 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.
You agree to use the Remote Access Services only in connection with the
proper purposes of this Agreement. You will not, and will cause your 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 Agreement, (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 redistributed or retransmitted for other than use for or
on behalf of yourself, as our Customer.
You agree that neither you nor your Authorized Designees will modify
the System in any way, enhance or otherwise create derivative works based upon
the System, nor will you or your Authorized Designees reverse engineer,
decompile or otherwise attempt to secure the source code for all or any part of
the System.
You acknowledge 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
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 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 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", and you and your Authorized Designees shall be
solely responsible for the investment decisions, regulatory reports and
statements produced using the Remote Access Services. State Street will not be
liable to you or your 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 either party
be responsible for delays or nonperformance under this Agreement arising out of
any cause or event beyond such party's control.
State Street will take reasonable steps to ensure that its products
(and those of its third-party suppliers) reflect the available state of the art
technology to offer products that are Year 2000 compliant, including, but not
limited to, century recognition of dates, calculations that correctly compute
same century and multi century formulas and date values, and interface values
that reflect the date issues arising between now and the next one-hundred years,
and if any changes are required, State Street will make the changes to its
products at no cost to you and in a commercially reasonable time frame and will
require third-party suppliers to do likewise. You will do likewise for your
systems.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, STATE STREET 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.
Infringement
State Street will defend or, at our option, settle any claim or action
brought against you to the extent that it is based upon an assertion that access
to the System or use of the Remote Access Services by you under this Agreement
constitutes direct infringement of any United States patent or copyright or
misappropriation of a trade secret, provided that you notify State Street
promptly in writing of any such claim or proceeding and cooperate with State
Street in the defense of such claim or proceeding. Should the System or the
Remote Access Services 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
the patent or copyright or trade secret laws of the United States, State Street
shall have the right, at State Street's sole option, to (i) procure for you the
right to continue using the System or the Remote Access Services, (ii) replace
or modify the System or the Remote Access Services so that the System or the
Remote Access Services becomes noninfringing, or (iii) terminate this Agreement
without further obligation.
Termination
Either party may terminate this Agreement (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 you or thirty (30) days' notice
in the case of notice from you to State Street of termination, or (ii)
immediately for failure of the other party to comply with any material term and
condition of the Agreement by giving the other party written notice of
termination. This Agreement shall in any event terminate within ninety (90) days
after the termination of any custodian agreement applicable to you. In the event
of termination, you will return to State Street all copies of documentation and
other confidential information in your possession or in the possession of your
Authorized Designees. The foregoing provisions with respect to confidentiality
and infringement will survive termination for a period of three (3) years.
Miscellaneous
This Agreement and the exhibits hereto constitute our entire
understanding with respect to access to the System and the Remote Access
Services. This Agreement cannot be modified or altered except in a writing duly
executed by both of us and shall be governed by and construed in accordance with
the laws of the State of New York.
Should you wish to avail yourself of the System and the Remote Access
Services, please sign and return one copy of this letter. If you do not sign and
return one copy of this letter we will deem your and your Authorized Designees'
continued use of the System and the Remote Access Services to be your acceptance
of these terms.
Very truly yours,
STATE STREET BANK AND TRUST COMPANY
By: ____________________________________
Name: ____________________________________
Title: _____________________________________
CONFIRMED AND AGREED BY LIBERTY-XXXXX XXX
ADVISOR FLOATING RATE ADVANTAGE FUND:
By: ______________________________
Name: ______________________________
Title: ______________________________
Date: ______________________________
EXHIBIT A
IN~SIGHTSM
System Product Description
In~SightSM provides information delivery and on-line access to State Street.
In~SightSM allows users a single point of entry into the many views of data
created by the diverse systems and applications. Reports and data from systems
such as Investment Policy MonitorSM, Multicurrency HorizonSM, Securities
Lending, Performance & Analytics can be accessed through In~SightSM. This
Internet-enabled application is designed to run from a Web browser and perform
across low-speed data line or corporate high-speed backbones. In~SightSM also
offers users a flexible toolset, including an ad-hoc query function, a custom
graphics package, a report designer, and a scheduling capability. Data and
reports offered through In~SightSM will continue to increase in direct
proportion with the client roll out, as it is viewed as the information delivery
system that will grow with our clients.
