EXHIBIT 99.8
CUSTODIAN CONTRACT
Between
THE XXXXXXX XXXXX RETIREMENT EQUITY FUND
and
STATE STREET BANK AND TRUST COMPANY
TABLE OF CONTENTS
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Page
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1. Employment of Custodian and Prpoerty to be
Held By It.............................................. 1
2. Duties of the Custodian with Respect to Property of
the Fund Held by the Custodian in the United States..... 2
2.1 Holding Securities................................. 2
2.2 Delivery-of Securities............................. 2
2.3 Registration of Securities......................... 7
2.4 Bank Accounts...................................... 7
2.5 Investment and Availability of Federal Funds ...... 8
2.6 Collection of Income............................... 9
2.7 Paysmentof Fund Moneys............................. 9
2.8 Liability for Payment In Advance of
Receipt of Securities Purchased.................... 12
2.9 Appointment of Agents.............................. 12
2.10 Deposit of Securities in Securities System......... 13
2.11 Segregated Account................................. 16
2.12 Ownership Certificates for Tax Purposes............ 17
2.13 Proxies............................................ 17
2.14 Comminications Relating to Fund
Portfolio Securities............................... 17
2.15 Reports to Fund by Independent Public
Accountants........................................ 18
3. Duties of the Custodian with respect to Property of
the Fund Held Outside of the United States.............. 19
3.1 Appointment of Foreign Sub-Custodians.............. 19
3.2 Assets to be Held.................................. 19
3.3 Foreign Securities Depositories.................... 20
3.4 Segregation of Securities.......................... 20
3.5 Agreements with Foreign Banking Institutions....... 20
3.6 Access of Independent Accountants of the Fund...... 21
3.7 Reports by Custodian............................... 21
3.8 Transactions in foreign Custody Account............ 22
3.9 Liability of Foreign Sub-Custodians................ 23
3.10 Monitoring Responsibilities........................ 24
3.11 Branches of U.S. Banks............................. 24
4. Payments for Repurchases or Redemptions and Sales
of Shares of the Fund .................................. 25
5. Proper Instructions..................................... 26
6. Actions Permitted Without Express Authority............. 26
7. Evidence of Authority................................... 27
8. Duties of Custodian with Respect to the books of
Account and Calculations of Not Asset Value and
Net Income.............................................. 27
9. Records................................................. 28
10. Opinion of Fund's independent Accountant................ 29
11. Compensation of Custodian............................... 29
12. Responsibility of Custodian............................. 29
13. Effective Period, Termination and Amendment............. 31
14. Successor Custodian..................................... 32
15. Interpretive and Additional Provisions.................. 34
16. Massachusetts Law to Apply.............................. 34
17. Prior Contracts......................................... 34
l8. Personal Liability...................................... 35
CUSTODIAN CONTRACT
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This Contract between Xxxxxxx Xxxxx Retirement Equity Fund, a business
trust organized and existing under the laws of The Commonwealth Of
Massachusetts, having Its principal place of business at 800 Scudders Mill Road,
Plainsboro, Now Jersey. 08543, hereinafter called the "Fund". and State Street
Bank and Trust Company, a Massachusetts corporation, having its principal place
of business at 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, 00000, hereinafter
called the "Custodian",
W I T H N E S S E T H: That in consideration of the mutual covenants
and agreements hereinafter contained, the parties hereto agree as follows:
1. Employment of Custodian and Property to be held by It
The Fund hereby employs the Costodian as the custodian of its assets,
Including securities It desires to be held In places within the United States
("domestic securities") and securities it desires to be hold outside the United
States "foreign securities") pursuant to the provisions of Its Declaration of
Trust. The Fund agrees to deliver to the Custodian all securities and cash owned
by It, and all payments of income, payments of principal or capital
distributions received by It with respect to all securities owned by the Fund
from time to time, and the cash considerations received by It for such new or
treasury shares of beneficial Interest, $.10 par Value, ("Shares") of the Fund
as may be Issued or sold from time to time. The Custodian shall not be
responsible for say property of the Fund hold or received by the Fund and not
delivered to the Custodian.
Upon receipt of Proper Instructions (within the meaning of Article 5), the
Custodian shall from time to time employ one or more sub-custodians located in
the United States, but only in accordance with an applicable vote by the Board
of Trustees of the Fund, and provided that the Custodian shall have no more or
less responsibility or liability to the land on account of any actions or
omissions of any sub-custodian so employed than any such sub-custodian has to
the Custodian. The Custodian way employ as sub-custodians for the Fund's
securities and other assets the foreign banking Institutions and foreign
securities depositories designated In Schedule "A" hereto but only in accordance
with the provisions of Article 3.
2. Duties of the Custodian with Respect to Property of the Fund held By the
Custodian in the United States
2.1 Holding Securities. The Custodian shall held and physically segregate for
the account of the Fund all non-cash property. to be held by It in the
United States, Including all domestic sucurities owned by the Fund, other
than securities which are maintained pursuant to Section 2.10 in a clearing
&Sauey which acts as a securities depositary or In a book-entry system
authorized by the U.S. Department of the Treasury, collectively referred to
herein as "Securities System".
2.2 Delivery of Securities. The Custodian shall release and deliver domestic
securities owned by the fund hold by the Custodian or In a Securities
System account of the Custodian only upon receipt of Proper Instructions,
which
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may be continuing iustructions when deemed appropriate by the parties, and
only in the following cases:
1) Upon sale of such securities for the account of the Fund and receipt
of payment therefor:
2) Upon the receipt of payment in connection with any repurchase
agreement related to such securities System into by the Fund;
3) In the case of a sale affected through a Securities System, In
accordance with the provisions of Section 2.10 hereof;
4) To the depository agent In connection with tender or other similar
offers for portfolio securities of the Fund;
5) To the Issuer thereof or its agent when such securities are called
redeemed retired or otherwise become payable; provided that,in any
such case, the cash or other consideration is to be delivered to the
Custodian;
6) To the issuer thereof, or Its agent, for transfer into the name of
the Fund or Into the Fund of any nominee or name of the Custodian or
into the case or nominee name of any agent appointed pursuant to
Section 2.9 Or into the name or nominee name of any sub-custodian
appointed pursuant to Article 1; or for exchange for a different
number of
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bonds, certificates or other evidence representing the Same
aggregate face amount, or number of units; provided that, in any ,
such case, the new securities are to be delivered to the Custodian;
7) To the broker selling the same for examination in accordance with
the "street delivery" custom;
8) For exchange or conversion pursuant to any Plan or 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 now
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;
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10) For delivery In connection with say loans of securities grade by the
Fund, but only against receipt of adequate collateral as agreed upon
from time to time by the Custodian and the Fund. which say to In the
form of cash or obligations Lasted by the United States government.
its agencies or instrumentalities. except that in connection with
any loans for which collateral is to be credited to the Custodian's
account In the book-entry system authorized by the U.S. Department
of the Treasury, the Custodian will not be held liable or
responsible for the delivery of securities owned by the Fund prior
to the receipt of such collateral;
11) For delivery as security in connection with, any borrowings by the
Fund requiring a pledge of assets by the Fund, but only against
receipt of amounts borrowed;
12) For delivery in accordance with the provisions of any agreement
among the Fund, the Custodian and a broker dealer registered under
the Securities exchange Act of 1934 (the "Exchange Act") and a
member of The National Association of Securities Dealers, Inc.
("NASD"), relating to compliance with the rules of The Options
Clearing Corporation
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and of any registered national securities exchange, or of any
similiar organization or organizations, regarding escrow or other
arrangments in commection with transactions by the Fund;
13) For delivery in accordance with the provisions: of any agreement
among the Fund, the Custodian, and a Futures Commission Merchant
registered under the Commodity Exchange Act, relating to compliance
with the rules of the Commodity Futures Trading Commission and/or
any Contract Market, or any similar organization or organizations
regarding account deposits In connection with transactions by the
Fund;
14) upon receipt of instructions from the transfer agent ("Transfer
Agent") for the Fund, for delivery to such Transfer Agent or to the
holders of shares in connection with distributions in kind, as may
be described from time to time in the Fund's currently effective
prospectus and statement of additional Information ("prospectus"),
in satisfaction of requests by holders of Shares for repurchase or
redemption; and
15) For any other proper corporate purpose, but, only upon receipt of,
in addition to Proper
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instructions, a certified copy of a resolution of the Board of
Trustees or of the Executive Committee signed by an officer of the
fund and certified by the Secretary or any Assistant Secretary.
specifying the securities to be delivered, setting forth the purpose
for which such delivery to to be made, declaring such purpose to be
a proper corporate purpose. and naming the person or persons to whom
delivery of such securities shall be made.
2.3 Registration of Securities. Domestic securities hold by the Custodian
(other than bearer securities) shall be registered In the case of the Fund
or in the same of any nominee of the Fund or of any against of the
Custodian which nominee shall be assigned exclusively to the Fund, unless
the Fund has authorized In writing the appointment of a nominee to be used
In common with other registered investment companies having the same
investment adviser as the Fund, or in the same or nominee name of any agent
appointed pursuant to Section.2.9 or in the name or nominee name of any
sub-custodian appointed pursuant to Article 1; All securities accepted by
the Custodian on behalf of the Fund under the terms of this Contract shall
be in "street name" or other good delivery form.
2.4 Bank Accounts. The Custodian shall open and maintain a separate bank
account or accounts In the United States in
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the name of the Fund, subject only to draft or order by the Custodian
acting pursuant to the terms of this Contract, and shall hold in such
account or accounts, subject to the provisions hereof, all cash received by
it from or for the account of the Fund, other than cash maintained by the
FUnd in a back account established and used in accordance with Rule 17f-3
under the Investment Company Act of 1940. Funds held by the Custodian for
the and 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 xxxx necessary or desirable; provided, however, that
every such bank or trust coapany shall be qualified to act an a custodian
under the Investment Company Act of 1940 and that each such bank or trust
company and the funds to be deposited with each such bank or trust company
shall be approved by vote of a majority of the Board of Trustees of the
Fund. Such funds shall be deposited by the Custodian in Its capacity an
Custodian and shall be wwithdrawable by the Custodian only is that
capacity.
2.5 Investment and Availability of Federal funds. Upon mutual agreement between
the Fund and the Custodian, the Custodian shall, upon the receipt of Proper
Instructions, make federal funds available to the Fund as of specified
times agreed upon from time to time by the Fund and the Custodian in the
acount of checks received in payment for shares of the Fund which are
deposited into the Fund's account.
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2.6 Collection of Income. The Custodian shall collect on a timely basis all
income and other payments with respect to United States registered
securities held hereunder to which the Fund shall be entitled either by law
or pursuant to custom in the securities business, and shall collect on a
timely basis all income and other payments with respect to United States
bearer securities if, on the date of payment by the issuer, such securities
are held by the Custodian or its agent thereof and shall credit such
income, as collected, to the Fund's custodian account. Without limiting the
generality of the foregoing, the Custodian shall detach and present for
payment all coupons and other income items requiring presentation as and
when they become due and shall collect Interest when due on securities held
hereunder. Income due the Fund an United States securities loaned pursuant
to the provisions of Section 2.2 (10) shall be the responsibility of the
fund. The Custodian mill 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 is arranging for the timely delivery to
the Custodian of the Income to which the Fund is properly entitled.
2.7 Payment of Fund Moneys. Upon receipt of Proper Instructions, which may be
continuting instructions when doomed appropriate by the parties, the
Custodian shall pay out moneys of the Fund in the following cases only:
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1) Upon the purchase of domestic securities, futures contracts or
options on futures contracts for the account of the Fund but only
(a) against the delivery of such securities or evidence of title to
futures contracts or options on futures-contracts, to the Custodian
for any bank, banking firm or trust company doing business In the
United States or abroad Which Is qualified under the Investment
Company Act of 1940, as ammended, to act as a Custodian and has been
designated by the Custodian as its agent for this purpose)
registered in the name of the Fund or in the name of a name of a
nominee of the Custodian referred to the Section 2.3 hereof or Inn
proper form for transfer; (b) In the case of a purchase affected
through a Securities System, In accordance wlth the conditions set
forth in Section 2.10 hereof or (c) in the case of repurchaase
agreements entered into between the Fund and the Custodian, or
another bank, or a broker-dealer which is a member of NASD, (i)
against delivery of the securities either in certificate form or
through an entry crediting the Custodian's account at the Federal
Reserve Bank with such securities or (Li) against delivery of the
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receipt evidencing purchase by the Fund of securities owned by the
Custodian along with written evidence of the agreement by the Fund
as Custodian to repurchase such securities from the Fund;
2) In connection with conversion, exchange or surrender of securities
owned by the Fund as set forth la Section 2.2 hereof;
3) For the redemption or repurchase of Shares Issued by the Fund as sat
forth In Article 4 hereof;
4) For the payment of any expense or liability issued by the Fund,
including but not limited to the following payments for the account
of the Fund: interest, taxes, management, accounting, transfer
agency and legal fees, and operating expenses of the Fund whether or
not such expenses are to be in whole or part capitalized or treated
as deferred expenses;
5) For the payment of any dividends declared pursuant to the governing
documents of the Fund;
6) For payment of the amount of dividends received in respect of
securities held short;
7) For any other proper purpose, but only upon receipt of, In addition
to Proper
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Instructions, a certified copy of a resolution of the Board of
Trustees Or of the Executive Committee of the Fund signed by an
officer of the fund and certified by its Secretary or by Assistant
Secretary, specifying the amount of each 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 paysent is to be made.
2.8 Liability for Payment In Advance of Receipt of Securities Purchased. In
any and every case where payment for purchase of domestic securities for
the account of the Fund is made by the Custodian in advance of receipt of
the securities purchased In the absence of specific written instructions
from the Fund to so pay In advance the Custodian shall be absolutely
liable to the Fund for such securities to the same extent as If the
securities had been received by the Custodian.
2.9 Appointment of Agents. The Custodian may at any time or tines in its
discretion appoint (and say at any time remove) any other bank or trust
company which is itself qualified under the Investment Company Act of
1940, as I amended, to act an a custodian, as Its agent to carry out such
of the provisions of this article 2 as the Custodian, say from tine to
time direct; provided, however, that the appointment of any agent shalll
not relieve the Custodian of its responsibilities or lliabilities
hereunder.
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2.10 Deposit of Securities in Securities Systems. The Custodian say deposit
and/ or maintain domestic securitiess owned by the Fund in a clearing
agency registered with the Securities and Exchange commission under
Section 17A of the Securities Exchange Act of 1934, which acts as a
securities depository, or in the book-entry system authorized by the U.S.
Department of the Treasury and certain federal agencies, collectively
referred to herein as "Securities System" in accordance with applicable
Federal Reserve Board and Securities and Exchange Commission rules and
regulations, If any, and Subject to the following provisions:
1) The Custodian may keep domestic securities of the Fund In a
Securities System provided that such securities are represented In
an account ("Account"') of the Custodian in the Securities System
which shall not Include any assets of the Custodian other than
assets bald as a fiduciary, custodian or otherwise for customers;
2) The records of the Custodian with respect to domestic securities
of the Fund which are maintained in a Securities System shalll
Identify by book-entry those securities belonging to the fund;
3) The Custodian shall pay for domestic securities purchased for the
account of the
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Fund upon (i) receipt of advice from the Securities System that
such securities have been transferred to the account, and (ii) the
making of an entry on the records of the Custodian to reflect such
payment and transfer or the account of the Fund. The Custodian
shall transfer domestic securities sold for the account of the
fund upon (i) receipt of advice from the Securities System that
payment for such securities has been transferred to the Account,
and (ii) the making of an entry on the records of the Custodion to
reflect such transfer and payment for the account of the Fund.
Copies of all advices from the Securities System of transfers of
domestic securities for the account of the land shall identify the
Fund, be maintained for the Fund by the Custodian and be provided
to the Fund at its request. Upon request, the Custodian shall
furnish the fund confirmation of each transger to or from the
account of the Fund in the form of a written advice or notice and
shall furnish to the Fund copies of daily transaction sheets
reflecting each day's transactions in the Securities System for
the account of the Fund.
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4) The Custodian shall provide the Fund with any report obtained by
the Custodian on the Securities System's accounting system,
internal accounting control and procedures for safeguarding
domestic Securities deposited in the Securities System;
5) The Custodian shall have received the initial or annual
certificate, as the case may be required by Article 13 hereof;
6) Anything to the contrary in this Contract notwithstanding the
Custodian shall be liable to the fund for any loss or damage to
the Fund resulting from use of the Securities System by reason of
any negligence, misfeasance or misconduct of the Custodian or any
of its agents or of any of its or their employees or from failure
of the Custodian or any such agent to enforce effectively such
rights as it may have against the Securities System; at the
election of the Fund, it shall be entitled to be subrogated to the
rights of the Custodian with respect to any claim against the
Securities System or any other person which the Custodian may have
as a consequence of any such loss or damage if and to the extent
that the Fund has not been made whole for any such loss or
damage.
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2.11 Segregated Account. The Custodian shall upon receipt of Proper
Instructions establish and maintain a segregated account or accounts for
and an behalf of the Fund, into which account or accounts may be
transferred cash and/or securities. Including securities maintained -in an
account by the Custodians pursuant to Section 2.10 hereof. (i) In
accordance with the provisions of any agreement among the Fund, the
Custodian and a broker-dealer registered under the exchange Act and a
member of the NASD (or any futures commission merchant registered under
the Comodity Exchange Act), relating to compliance with the rules of the
Options Clearing Corporation and of any registered national securities
exchange (or the Commodity Futures Trading Commission or any registered
contract market), or of any similiar organization or organizations,
regarding escrow or other arrangements in connection with transactions by
the Fund, (ii) for purposes of segregating cash or government securities
In connection with options purchased, sold or written by the fund or
commodity futures contracts or options thereon purchased or sold by the
Paid, (iii) for the purposes of compliance by the Fund with the procedures
required by Investment Company AAct Release No. 10666, or any subsequent
release or releases of the Securities and Exchange Commission relating to
the maintenance of segregated accounts by registered Investment companies
and (iv) for other proper corporate purposes, but only, In the case of
clause (iv),
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upon receipt of, in addition to Proper Instructions, a certified copy of a
resolution of the Board of Trustees or of the Executive Committee signed
by an officer of the fund and certified by the Secretary or an Assistant
Secretary. setting forth the purpose or purposes of such segregated
account and declaring such purposes to be proper corporate purposes.
2.12 Ownership Certificates for Tax Purposes. The Custodian shall execute
ownership and other certificates and affidavits for ail federal and state
tax purposes in connection with receipt of income or other payments with
respect to domestic securities of the fund held by It and in commection
with transfers of such securities.
2.13 Proxies. The Custodian shall, with respect to the domestic securities held
hereunder, cause to be promptly executed by the registered holder of such
securities, if- the securities are registered otherwise than in the nane
of the Fund or a nominee of the Fund, all proxies, without indication of
the name in which such proxies are to be voted, and sh deliver to the Fund
such proxies, all proxy soliciting materials and all notice relating to
such securities.
2.14 Communications relating to the Fund Portfolio Securities. The Custodian
shall transmit promptly to the Fund all written information (including,
without limitations, pendency of calls and maturities of domestic
securities and expirations of rights in connection therewith and
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notices of exercise of call and Put options written by the fund and the
maturity of futures contracts purchased or sold by the Fund) received by
the Custodian from issuer of the domesticsecurities being held for the
Fund. With respect to tender or exchange offers. the Custodian shall
transmitpromptly to the Fund all written Information received by the
Custodian from issuers of the domestic securities whose tender or exchange
is sought and from the party (or his &gouts) making the tender or exchange
offer. If the Fund dealres to take action with resect to any tender offer,
exchange offer or any other similar transaction, the fund shall notify the
Custodian at least three business days prior to the date on which the
Custodian is to take such action.
2.15 Reports to fund by Independant Public Accountants The Custodian shall
provide the Fund, at such times as the Fund may reasonable require with
reports by independent public accountants an the accounting system,
internal accounting control and procedures for safeguarding securities,
futures contracts and options on futures contracts, including domestic
securities deposited and/or maintained In a Securities System, relating to
the services provided by the Custodian under this Contract; such reports,
which shall be of sufficient scope and In sufficient detail, as say
reasonably be required by the Fund. to provide reasonable assurance that
any material inadequacies would be disclosed by such,
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examination, and, If there see no such inadequacies, shall so state.
3. Duties of the Custodian with Respect to Property of the, Fund Hold Outside
of the United States
3.1 Appointment of Foreign Sub-Custodians.
The Custodian is authorized and Instructed to employ as sub-custodians for
the Fund's securities and other assets maintained outside of the United
States the foreign banking Institutions and foreign securities
depositories designated on Schedule A hereto ("foreign sub-custodians").
Upon receipt of Proper Instructions together with a certified resolution
of the Fund's Board of Trustees, the Custodian and the Fund may agree to
amend Schedule A hereto from time to time to designate additional foreign
banking Institutions and foreign securities depositories to act as sub-
custodians. Upon receipt of Proper Instructions from the fund the
Custodian shall cease the employment of any one or more of such sub-
custodians for maintaining custody of the Fund's assets.
3.2 Assets to be Held. The Custodian shall limit the securities and other
assets maintained In the custody of the foreign sub-custodians to:
(a)foreign securities-, defined in paragraph (c)(1) of Rule 17f-5 under
the Investment Company Act of 1940, and (b) cash and cash equivalents In
such amounts as the Custodian or the Fund may determine to be reasonably
necessary to effect the Fund's foreign securities transactions.
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3.3 Foreign Securities Depositories. Except as may otherwise be agreed upon in
writing by the Custodian and the Fund, assets of the Fund shall be
maintained in foreign securitiy depositories only through arrangements
implemented by the foreign banking Institutions serving as sub-custodians
pursuant to the terms hereof.
3.4 Segregation of Securities. The Custodian shall identify on its books as
belonging to the Fund, the foreign securities of the Fund hold by each
foreign sub-custodian. Each agreement to which the Custodian employs a
foreign banking institution shall require that such institution establish
a custody account for the Custodian on behalf of the Fend and physically
segregate in that account, securities and other assets of the Fund, and,
In the event that such institution deposits the Fund's securities in
foreign securities depository, that it shall identify an its books as
belonging to the Custodian, as agent for the Fund, the securities SO
deposited (all collectively referred to as the "Account").
3.5 Agreements with Foreign Banking institutions. Each agreement with a
foreign banking Institution shall be substantially in the form set forth
in Exhibit 1 hereto and shall provide that: (a) the Fund's assets will not
be subject to any right, charge. security interest, lien, or claim of any
kind in favor of the foreign banking Institutions or its creditors, except
a claim of payment
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for their safe custody or administration; (b) beneficial ownership for the
Fund's assets will be freely transferable without the payment of money or
value other than for custody or administration; (c) adequate records will
be maintained identifying the assets as belonging to the Fund; (d) officers
of or auditors employed by, or other represtatives of the Custodian,
lncluding to the extent [permitted under applicable law the independent
public accountants for the Fund. will be given access to the books and
records of the foreign banking institution relating to Its actions under
Its agreement with the Custodian; and (e) assets of the Fund held by the
foreign sub-custodian will be subject only to the Instruction of the
Custodian or its agents.
3.6 Access of Independant Accountants of the Fund. Upon request of the Fund,
the Custodian will use its best efforts to arrange for the independent
accountants of the Fund to be afforded access to the books and records of
any foreign banking institution employed as a foreign sub-custodian insofar
as such books and records relate to the performance of such foreign banking
institutions under Its agreement with the Custodian.
3.7 Reports by Custodian. The Custodian will supply to the Fund from time to
time, a mutually agreed upon,, statements in respect of the securities and
other assets of the Fund hold by foreign sub-custodians, including but not
limited to an identification of entities having
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possession of the Fund's securities and other assets and advices or
notification Of any transfer of securities to or from each custodial
account maintained by a foreign banking institution for the Custodian on
behalf of the fund indicating, as to securities acquired for the Fund, the
identity of the entity having physical possessions of such securities.
3.8 Transactions in Foreign Custody Account. (a) upon receipt of Proper
Instructions, which may be containing instructions when deemed appropriate
by the parties, the Custodian shall make or cause Its foreign sub-custodian
to transfer, exchange or deliver foreign securities owned by the Fund, but
except to the extent explicitly provided herein only in any of the cases
specified In Section 2.2 (b) Upon receipt of Proper Insructions, which may
be continuing instructions when deemed appropriate by the parties the
Custodian sball pay out or cause its foreign sub-custodians to pay out
monies of the Fund, but except to the extent explicitly provided herein
only In any of the cases specified in Section 2.8. (c) Notwithstanding any
provision of this Contract to the contrary, settlement and payment for
securities received for the account of the Fund and delivery of securities
maintained for the accoamt of the Fund may be affected in accordance with
the customary or established securities trading or securities processing
practices and procedures in the jurisdiction or market In which the
transaction
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occurs, including, without limitation, delivering securities to the
purchase thereof or to a dealer tthereof (or an agent for such purchaser or
dealer) against a receipt with the expection of receiving later payment for
such securities from such purchases or dealer. (d) Securities maintained in
the custody of a foreign sub-custodian may be maintained In the name of
such entity's nominee to the same extnet as set forth in Section 2.3 of the
Contract and the Fund agrees to bold any such nominee hereas from say
liability as a holder of record of such secutities.
3.9 Liability of Foreign Sub-Custodians. Each agreement pursusat to which the
Custodoan employs a foreign banking institution as a foreign sub-custodian
shall require the institution to exercise reasonable care in the
Performance of its duties and to indemnify, and hold harmless, the
custodian and Fund from and against any loss, damage, cost, expense,
liability, or claim arising out of or in connection with the institution's
performance of such obligations. At the election of the Fund, it shall be
entitled to be subrogated to the rights of the Custodian with respect to
any claims against a foreign banking institution as a consequence of any
such loss, damage, cost, expense, liability or claim if and to the extent
that the fund has not been made whole for any such loss, damage, cost,
expense, liability or claim.
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3.10 Monitoring Responsibilities. The Custodian shall furnish annually to the
Fund, during the Month of June information concerning the foreign sub-
custodians employed by the Custodian. Such information shall be similar in
kind and scope to that furnished to the Fund In connection with the
initial approval of this Contract. In addition, the Custodian will
promptly inform the Fund in the event that the custodian learns of a
material adverse change in the financial condition of a foreign sub-
custodian or is notified by a foreign banking institution employed as a
foreign sub-custodian that there appears to be a substantial liklihood
that its shareholders equity will decline below $200 million (U.S. dollars
or the equivalent thereof) or that its shareholders'equity has declined
below $2OO million (in each case computed in accordance with generally
accepted U.S. accounting principles).
3.11 Branches of U.S. Banks. Except as otherwise not forth in this Contract,
the provisions hereof shall not apply where the custody of the Fund assets
maintained in a foreign branches of a banking Institution which is a
"bank" is defined by Section. 2(a) (5) of the investment Company Act of
1940 which meets the qualification set xxxx in Section 26(a) of said Act.
The appointment of any such branch as a sub-custodian shall be governed
by Article 1 of this Contract.
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4. Payments for Repurchase or Redemption and Sales of Shares of the Fund.
Fund From such funds as may be available for the purpose but subject to
the limitations of the Declaration of Trust and any applicable votes of the
Board of Trustees of the Fund pursuant thereto, the Custodian shall, upon
receipt of Instructions from the Transger Agent, make funds available for
payment to holder of Shares who have delivered to the Transfer Agent a request
for redemption or repurchase of their Shares. In connection with the redemption
or repurchase of Shares of the Fund, the Custodian Is authorized upon receipt of
instructions from the Transfer Agent to wire funds to or through a commercial
band designated by the redeeming shareholders. In connection with the redemption
or repurchase of Shares of the Fund, the Custodian &hall honor checks drawn on
the Custodian by a holder of Shares, which checks have been furnished by the
Fund to the holder of Shares, when presented to the Custodian in accordance with
such procedures and controls as are mutually agreed upon from tine to tine
between the Fund and the Custodian.
The Custodian shall receive from the distributor for the Fund's Shares or
from the Transfer Agent of the Fund and deposit Into the Fund's account such
payments as are received for Shares of the Fund Issued or sold from tine to time
by the Fund. The Custodian will provide timely notification to the Fund and the
Transfer Agent of any receipt by it of payments for Shares of the Fund.
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5. Proper Instructions
Proper Instructions as used herein means a writing signed or initiated by
one or more person or persons as the Board of Directors 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 thou to have been given by a
person authorized to giva such instructions with respect to the transaction
Involved. The Fund shall cause all oral instructions to be confirmed in writing.
Upon receipt of a certificate of the Secratary or an Assistant Secretary an to
the authorization by the Board of Directors of the Fund accompanied by detailed
description of procedures approved by the Board of Directors, Proper
Instructions may Lnclude communications affected directly. between electro-
mechanical or electronic devices provided that the Board of Directors and the
Custodian are satisfied that such procedures afford adequate safageards for the
Fund's assets.
6. Actions Permitted without Express Authority. The Custodian may in its
discretion, without express authority from the Fund:
1) make payments to itself or others for minor expenses of handling
securities or other similiar items relating to its duties under this Contract,
provided that all such payments shall be accounted for to the Fund;
-26-
2) surrender securities in temporary form for securities in definitive
form;
3) endorse for collection, In the name of the Fund. checks. drafts and
other negotiable instruments; and
4) In general, attend to all non-discretionary details in connection with
the sale, exchange. substitution, purchase, transfer and other dealings with
these securities and property of the Fund except as otherwise directed by the
Board of Directors of the Fund.
7. Evidence of Authority The Custodian shall be protected in acting upon any
instructions, notice, request, consent, certificates or other instrument or
paper beleived by it to be genuine and to have been properly executed by or on
behalf of the Fund. The Custodian way receive and accept a certified copy of a
vote of the Board of Trustees of the Fund as conclusive evidence (a) of the
authority. of any person to act in accordance with such vote or (b) of any
determination or of any action by the Board of Directors pursuant to the
Declaration of Trust as described in such vote, and such vote say be considered
as in full force and affect until receipt by the Custodian of written notice to
the contrary.
8. Duties of Custodian with Respect to the Books of Account and Calculation of
Net Asset Value and Net Income
The Custodian sball cooperate with and supply necessary information to the
entity or entities appointed by the Board of Directors of the Fund to keep the
book of account of the Fund and/or compute the not asset value per share of the
outstanding
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shares of the Fund or, if directed in writing to do to by the Fund, shall
itself keep such books of account and/or compute such net asset value per
share. If so directed, the Custodian shall also calculate daily per share of
the Fund as described in the fund's currently effective prospectus and shall
advise the Fund and the Transfer Agent daily of the total amoumts of such not
income and. If instructad In writing by an officer of the Fund to do no, shall
advise the Transfer Agent periodically of the division of such net Income among
its various components. The calculations of the set asset value per share and
the daily. Income of the Fund shall be made at the time or times described
from tine to time In the Fund's currently effective prospectus.
9. Records
The Custodian shall create and maintain all records relating to its
activities and obligations under this Contract in such manner as will meet the
obligations of the Fund under the Investment Company Act of 1940, with
particular attention to Section 31 thereof and Rules 31a-1 and 3la-2 thereunder,
applicable federal and state tax laws and any other law or administrative rules
or procedures which may be applicable to the Fund. All such records shall be the
property of the Fund and shall at all times during the regular business hours of
the Custodian be open for Inspection by duly authorized officers, employees or
agents of the Fund and employees and agents of the Securities and Exchange
Commission. The Custodian shall, at the Fund's request, supply the Fund with a
tabulation of securities owned by the Fund and held by the Custodian and shall,
when
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requested to do so by the land and for such compensation as shall be agreed upon
between the Fund. and the Custodian, include certificate numbers in such
tabluations.
10. Opinion of Fund's Independent Accountant
The Custodian shall take all reasonable action, as the Fund may from time
to time request, to obtain from year to year favorable opinions from the Fund's
independent accountants with respect to its activities hereunder in connection
with the preparation of the Fund's Form N-1A, and Form N-SAR or other annual
reports to the Securities and Exchange Commission and with respect to any other
requirements of such Commission.
11. Compensation of Custodian
The Custodian shall be entitled to reasonable compensation for its services
and expenses an Custodian, as agreed upon from time to time between the Fund and
the Custodian.
12. Responsibility of Custodian
So long as and to the extent that it is In the exercise of reasonable care,
the Custodian shall not be responsible for the title, validity or genuineness of
any property or evidence of title thereto received by it or delivered by It
pursuant to this Contract and shall be hold harmless in acting upon any notice,
request, consent, certificate or other instrument reasonably, believed by It to
be genuine and to be signed by the proper party or parties. The Custodian shall
be held to the exercise of reasonable care in carrying out the provisions of
this Contract, but shall be kept indemnified by and shall be,without liability
to the Fund for any action taken or omitted by it in good faith
-29-
without negligence. It shall be entitled to rely on and say act upon advice of
counsel (who may be counsel for the Fund) on all matters, and shall be without
liability for any action reasonably taken or omitted pursuant to such advice.
Notwithstanding the foregoing, the responsibility of the Custodian with respect
to redemptions affected by check shall be In accordance with a separate
Agreement entered Into between the Custodian and the Fund.
The Custodian shall be liable for the acts or omissions of a foreign
banking institution appointed pursuant to the provisions of, Article 3 to the
same extent an set forth in Article 1 hereof with respect to sub-custodian
located in the United States and, rregardless as of whether assets are
maintained in the custody of a foreign banking Institution, a foreign securities
depositary or a branch of a U.S. bank as contemplated by paragraph 3.11 hereof,
the Custodian shall not be liable for any loss, damage, cost, expense, liability
or claim resulting from, or caused by, the direction of or authorization by the
Fund to maintain custody or any securities or cash of the Fund In a foreign
country including, but not limited to, losses resulting from nationalization,
expropriation, currency restrictions, or acts of war or terrorism.
If the Fund requires the Custodian to take any action with respect to
securities, which action Involves the payment of money or which action may, In
the opinion of the Custodian, result In the Custodlan or its nominee assigned to
the Fund being liable for the payment of money or incurring liability of some
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Other form, the Fund, as a prerequisite to requiring the Custodian to take such
action, shall provide indemnity to the Custodian in an amount and form
satisfactory to it
If the Fund requires the Custodian to advance cash or securities for any
prupose or in the event that the Custodian or its nominee shall incur or be
assessed any taxes, charges, expenses, assessments, claims, or liabilities in
connection with the performance of this contract, except such as may arise from
its or its nominee's own negligent action, negligent failure to act or willful
misconduct, any property at any time held for the account Of the Fund shall be
security therefor and should be entitled to utilize available cash and to
dispose of the Fund assets to the extent necessary to obtain reimbursement.
13. Effective Period, Termination and Amendment This contract shll become
effective as of its execution, shall continue in full force and effect until
terminated as ereinafter provided, may be amended at any time by mutual
agreement of the parties hereto and may be terminated by either party by an
instrument in writting delivered or mailed, postage prepaid to the other party,
such termination to take effect not sooner than thirty (30) days after the date
of such delivery or mailing; provided; however that the custodian shall not act
under Section 2.10 hereof in the absence of receipt of an intital certificate Of
the Secretary or an Assistant Secretary that the Board of Directors Of the Fund
have approved the initial use of a particular Securities system and the receipt
of an annual
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certificate of the Secretary or an assistant secretary that the Board of
Directors have reviewed the use by the Fund of such Securities system, as
required in each case by Rule 17f-4 under the Investment Company Act of 1940, as
amended; provided further, however that the Fund shall not amend or terminate
this Contract in contravention of any applicable federal or state regulations,
or any provisions of the Articles of Incorporation, and furthar provided, that
the Fund may at any time by action of Its Board of Directors (i) substitute
another bank or trust company for the custodian by giving notice as described
above to the Custodian, or (ii) immediately terminate this Contract In the event
of the appointment of a conservator or receiver for the Custodian by Comptroller
of the Currency or upon the happening of a like event at the direction of an
appropriate regulatory agency or court of compatent jurisdiction. Upon
termination of the Contract, the Fund shall pay to the Custodian such
compensation as may be due as of the date of such termination and shall likewise
reimburse the custodian for its costs, expenses and disbursements.
14. Successor Custodian
If a successor custodian shall be appointed by the Board Of Directors of the
Fund, the custodiann, shall upon termination deliver to such successor
cusstodian at the office of the Custodian, duly endorsed and in the form for
transfer, all securities then held by it hereunder and shall transfer to an
account of the successor custodian all of the Fund's Securities held in a
Securities System
-32-
If no such successor custodian shall be appointed, the Custodian shall, In
like manner, upon receipt of a certified copy of a vote of the board of Trustees
of the Fund, deliver at the office of the custodian and transfer such
securities, funds and other properties in accordance with such vote.
In the event that no written order designating a successor custodian or
certified copy of a vote of the BOard of Directors shall have been delivered to
the Custodian on or before the date when such termination shall become
effective, then the custodian shall have the right to deliver to a bank or trust
company, which is a "bank" as defined in the Investment Company Act of 1940,
doing business in Boston, Massachusetts, of Its own selection, having an
agregate capital, surplus, and undivided profits, as shown by its last published
reprot, of not less than $25,000,000, all securities, funds and other properties
held by the Custodian and all instruments held by the Custodian relative thereto
and all other property held by it under the Contract and to transfer to an
account of such successor custodian all of the Fund's securities hold in any
Securities System. Thereafter, such bank or trust company shall be the Successor
Of the Custodian under this Contract.
In the event that securities, funds and other properties remain in the
possession of tie Custodian after the date of termination hareof oqing to
failure of the Fund to procure the certified copy of the vote referred to or of
the Board of Directors to appoint a successor custodian, the Custodian shall be
entitled to fair compensation of its services during such
-33-
period as the Custodian retain Possession of such securities, funds and other
properties and the provisions of this Contract relating to the duties and
obligations of the Custodian shall remain in full force and effect.
15. Interpretive and Additional Provisions
In connection with the operation of this Contract, the Custodian and the
fund may from time to timw agree an such provisions interpretive of or in
addition to the provisions of this Contract as may in their joint opinion be
consistent with the general tenor of this Contract. Any such interprative or
additional provisions shall be In a writing signed by both parties and shall be
annexed hereto, provided that so such interpretive or additional provisions
shall contravene any applicable federal or state regulations or any provision of
the Articles of Incorporation of the fund. No Interpretive or additional
provisions made as provided in the preceding sentence- shall be deemed to be an
amendment of this Contract.
16. Massachusetts Law to Apply
This Contract shall be construed and the provisions thereof Interpreted
under and In accordance with laws of The Commonwealth of Massachusetts.
17. Prior Contracts
This Contact superseded and terminates, as of the date hereof, all prior
contracts between the Fund and the Custodian relating to the custody of the
Fund's assets.
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18. Personal Liablity
The Declaration of Trust establishing Xxxxxxx Xxxxx Retirement Equity Fund,
Dated 1986, a copy of which, together with all amendments thereto
(the"Declaration"), is on file in the office of the Secretary of the
Commonwealth of Massachusetts, provided that the name Xxxxxxx Xxxxx Retirement
Global Bond Fund- refers to the Trustees under the Declaration collectively as
trustees, but not as individuals or personally; and no Trustee, shareholder,
officer, employee or agent of the Trust shall be held to any personal liability,
nor shall resort be had to thier private property for teh satisfaction of any,
obligation or calim or otherwise in connection with the affairs of the Trust,
but the "Trust Property" only shall be liable. IN WITNESS WEHREOF, each of the
parties has caused this instrument to be executed in its name and behalf by duly
authorized representative and its seal to be hereunder affirmed as of the
day of ,1987.
ATTEST XXXXXXX XXXXX RETIREMENT EQUITY FUND
_____________________ By _________________________________
ATTEST STATE STREET BANK AND TRUST COMPANY
_____________________ By ________________________________
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