CUSTODIAN AGREEMENT
AGREEMENT amended and restated as of June 1, 2001, between each of the
Xxxxxx Funds listed in Schedule A, each of such Funds acting on its own
behalf separately from all the other Funds and not jointly or jointly
and severally with any of the other Funds (each of the Funds being
hereinafter referred to as the "Fund"), and Xxxxxx Fiduciary Trust
Company (the "Custodian").
WHEREAS, the Custodian represents to the Fund that it is eligible to
serve as a custodian and foreign custody manager for a management
investment company registered under the Investment Company Act of 1940,
as amended (the "1940 Act"), and
WHEREAS, the Fund wishes to appoint the Custodian as the Fund's
custodian and foreign custody manager.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto agree as follows:
1. Appointment of Custodian. The Fund hereby employs and appoints the
Custodian as custodian of its assets for the term and subject to the
provisions of this Agreement. At the direction of the Custodian, the
Fund agrees to deliver to the Sub-Custodians appointed pursuant to
Section 2 below (the "Sub-Custodians") securities, funds and other
property owned by it. The Custodian shall have no responsibility or
liability for or on account of securities, funds or other property not
so delivered to the Sub-Custodians. Upon request, the Fund shall
deliver to the Custodian or to such Sub-Custodians as the Custodian may
direct such proxies, powers of attorney or other instruments as may be
reasonably necessary or desirable in connection with the performance by
the Custodian or any Sub-Custodian of their respective obligations under
this Agreement or any applicable Sub-Custodian Agreement.
2. Appointment of Sub-Custodians. The Custodian may at any time and
from time to time appoint, at its own cost and expense, as a
Sub-Custodian for the Fund any bank or trust company which meets the
requirements of the 1940 Act and the rules and regulations thereunder to
act as a custodian, provided that the Fund shall have approved any such
bank or trust company and the Custodian gives prompt notice to the Fund
of any such appointment. The agreement between the Custodian and any
Sub-Custodian shall be substantially in the form of the Sub-Custodian
agreement attached hereto as Exhibit 1 (the "Sub-Custodian Agreement")
unless otherwise approved by the Fund, provided, however, that the
agreement between the Custodian and any Sub-Custodian appointed
primarily for the purpose of holding foreign securities of the Fund
shall be substantially in the form of the Sub-Custodian Agreement
attached hereto as Exhibit 1(A) (the "Foreign Sub-Custodian Agreement";
the "Sub-Custodian Agreement" and the "Foreign Sub-Custodian Agreement"
are herein referred to collectively and each individually as the
"Sub-Custodian Agreement"). All Sub-Custodians shall be subject to the
instructions of the Custodian and not the Fund. The Custodian may, at
any time in its discretion, remove any bank or trust company which has
been appointed as a Sub-Custodian but shall in such case promptly notify
the Fund in writing of any such action. Securities, funds and other
property of the Fund delivered pursuant to this Agreement shall be held
exclusively by Sub-Custodians appointed pursuant to the provisions of
this Section 2.
The Sub-Custodians which the Fund has approved to date are set forth in
Schedule B hereto. Schedule B shall be amended from time to time as
Sub-Custodians are changed, added or deleted.
With respect to the securities, funds or other property held by a
Sub-Custodian, the Custodian shall be liable to the Fund if and only to
the extent that such Sub-Custodian is liable to the Custodian. The
Custodian shall nevertheless be liable to the Fund for its own
negligence in transmitting any instructions received by it from the Fund
and for its own negligence in connection with the delivery of any
securities, funds or other property of the Fund to any such
Sub-Custodian.
In the event that any Sub-Custodian appointed pursuant to the provisions
of this Section 2 fails to perform any of its obligations under the
terms and conditions of the applicable Sub-Custodian Agreement, the
Custodian shall use its best efforts to cause such Sub-Custodian to
perform such obligations. In the event that the Custodian is unable to
cause such Sub-Custodian to perform fully its obligations thereunder,
the Custodian shall forthwith terminate such Sub-Custodian and, if
necessary or desirable, appoint another Sub-Custodian in accordance with
the provisions of this Section 2. The Custodian may with the approval
of the Fund commence any legal or equitable action which it believes is
necessary or appropriate in connection with the failure by a
Sub-Custodian to perform its obligations under the applicable
Sub-Custodian Agreement. Provided the Custodian shall not have been
negligent with respect to any such matter, such action shall be at the
expense of the Fund. The Custodian shall keep the Fund fully informed
regarding such action and the Fund may at any time upon notice to the
Custodian elect to take responsibility for prosecuting such action. In
such event the Fund shall have the right to enforce and shall be
subrogated to the Custodian's rights against any such Sub-Custodian for
loss or damage caused the Fund by such Sub-Custodian.
At the written request of the Fund, the Custodian will terminate any
Sub-Custodian appointed pursuant to the provisions of this Section 2 in
accordance with the termination provisions of the applicable
Sub-Custodian Agreement. The Custodian will not amend any Sub-Custodian
Agreement in any material manner except upon the prior written approval
of the Fund and shall in any case give prompt written notice to the Fund
of any amendment to the Sub-Custodian Agreement.
3. Duties of the Custodian with Respect to Property of the Fund Held by
Sub-Custodians.
3.1 Holding Securities - The Custodian shall cause one or more
Sub-Custodians to hold and, by book-entry or otherwise, identify as
belonging to the Fund all non-cash property delivered to such
Sub-Custodian.
3.2 Delivery of Securities - The Custodian shall cause Sub-Custodians
holding securities of the Fund to release and deliver securities owned by
the Fund held by the Sub-Custodian or in a Securities System (as defined in
Section 3.12) account of the Sub-Custodian only upon receipt of Proper
Instructions (as defined in Section 3.16), which may be continuing
instructions when deemed appropriate by the parties, and only in the
following cases:
3.2.1 Upon sale of such securities for the account of the Fund and
receipt of payment therefor; provided, however, that a Sub-Custodian may
release and deliver securities prior to the receipt of payment therefor if
(i) in the Sub-Custodian's judgment, (A) release and delivery prior to
payment is required by the terms of the instrument evidencing the security
or (B) release and delivery prior to payment is the prevailing method of
settling securities transactions between institutional investors in the
applicable market and (ii) release and delivery prior to payment is in
accordance with generally accepted trade practice and with any applicable
governmental regulations and the rules of Securities Systems or other
securities depositories and clearing agencies in the applicable market.
The Custodian agrees, upon request, to advise the Fund of all pending
transactions in which release and delivery will be made prior to the
receipt of payment therefor;
3.2.2 Upon the receipt of payment in connection with any repurchase
agreement related to such securities entered into by the Fund;
3.2.3 In the case of a sale effected through a Securities System, in
accordance with the provisions of Section 3.12 hereof;
3.2.4 To the depository agent in connection with tender or other similar
offers for portfolio securities of the Fund; provided that, in any such
case, the cash or other consideration is thereafter to be delivered to the
Sub-Custodian;
3.2.5 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
Sub-Custodian;
3.2.6 To the issuer thereof, or its agent for transfer into the name of
the Fund or into the name of any nominee or nominees of the Sub-Custodian
or into the name or nominee name of any agent appointed pursuant to Section
3.11 or any other name permitted pursuant to Section 3.3; 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
Sub-Custodian;
3.2.7 Upon the sale of such securities for the account of the Fund, 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 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 Sub-Custodian's own negligence
or willful misconduct;
3.2.8 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 Sub-Custodian;
3.2.9 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 Sub-Custodian;
3.2.10 For delivery in connection with any loans of securities made by
the Fund;
3.2.11 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;
3.2.12 Upon receipt of instructions from the transfer agent ("Transfer
Agent") for the Fund, for delivery to such Transfer Agent or to the
shareholders of the Fund in connection with distributions in kind, as may
be described from time to time in the Fund's Declaration of Trust and
currently effective registration statement, if any, in satisfaction of
requests by Fund shareholders for repurchase or redemption;
3.2.13 For delivery to another Sub-Custodian of the Fund; and
3.2.14 For any other proper corporate purpose, but only upon receipt of,
in addition to Proper Instructions, a certified copy of a resolution of the
Trustees or of the Executive Committee of the Fund signed by an officer of
the Fund and certified by its Clerk or an Assistant Clerk, specifying the
securities to be delivered, setting forth the purpose for which such
delivery is to be made, declaring such purposes to be proper corporate
purposes, and naming the person or persons to whom delivery of such
securities shall be made.
3.3 Registration of Securities. Securities of the Fund held by the
Sub-Custodians hereunder (other than bearer securities) shall be registered
in the name of the Fund or in the name of any nominee of the Fund or of any
nominee of the Sub-Custodians or any Eligible Foreign Custodian subject to
a Contract (each as defined in Section 3.11A) or eligible securities
depository (as defined in Section 3.11B), which nominee shall be assigned
exclusively to the Fund, unless the Fund has authorized in writing the
appointment of a nominee to be used in common with other registered
investment companies having the same investment adviser as the Fund, or in
the name or nominee name of any agent appointed pursuant to Section 3.12.
Notwithstanding the foregoing, a Sub-Custodian, agent, Eligible Foreign
Custodian or eligible securities depository may hold securities of the Fund
in a nominee name which is used for its other clients provided that such
name is not used by the Sub-Custodian, agent, Eligible Foreign Custodian or
eligible securities depository for its own securities and that securities
of the Fund are, by book-entry or otherwise, at all times identified as
belonging to the Fund and distinguished from other securities held for
other clients using the same nominee name. In addition, and
notwithstanding the foregoing, a Sub-Custodian or agent thereof or Eligible
Foreign Custodian or eligible securities depository may hold securities of
the Fund in its own name if such registration is the prevailing method in
the applicable market by which custodians register securities of
institutional clients and provided that securities of the Fund are, by
book-entry or otherwise, at all times identified as belonging to the Fund
and distinguished from other securities held for other clients or for the
Sub-Custodian or agent thereof or Eligible Foreign Custodian or eligible
securities depository. All securities accepted by a Sub-Custodian under
the terms of a Sub-Custodian Agreement shall be in good delivery form.
3.4 Bank Accounts. The Custodian shall cause one or more Sub-Custodians
to open and maintain a separate bank account or accounts in the name of the
Fund or the Custodian, subject only to draft or order by the Sub-Custodian
acting pursuant to the terms of a Sub-Custodian Contract or by the
Custodian acting pursuant to 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 Fund, other than cash maintained by the Fund in a
bank account established and used in accordance with Rule 17f-3 under the
1940 Act. Funds held by the Sub-Custodian for the Fund may be deposited by
it to its credit as sub-custodian or to the Custodian's credit as custodian
in the Banking Department of the Sub-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 be approved by vote of a majority of the Trustees of the Fund. Such
funds shall be deposited by the Sub-Custodian or the Custodian in its
capacity as sub-custodian or custodian, respectively, and shall be
withdrawable by the Sub-Custodian or the Custodian only in that capacity.
The Sub-Custodian shall be liable for actual losses incurred by the Fund
attributable to any failure on the part of the Sub-Custodian to report
accurate cash availability information with respect to the Fund's or the
Custodian's bank accounts maintained by the Sub-Custodian or any of its
agents.
3.5 Payments for Shares. The Custodian shall cause one or more
Sub-Custodians to deposit into the Fund's account amounts received from the
Transfer Agent of the Fund for shares of the Fund issued by the Fund and
sold by its distributor. The Custodian will provide timely notification to
the Fund of any receipt by the Sub-Custodian from the Transfer Agent of
payments for shares of the Fund.
3.6 Availability of Federal Funds. Upon mutual agreement between the
Fund and the Custodian, the Custodian shall cause one or more
Sub-Custodians, upon the receipt of Proper Instructions, to make federal
funds available to the Fund as of specified times agreed upon from time to
time by the Fund and the Custodian with respect to amounts received by the
Sub-Custodians for the purchase of shares of the Fund.
3.7 Collection of Income. The Custodian shall cause one or more
Sub-Custodians to collect on a timely basis all income and other payments
with respect to registered securities held hereunder, including securities
held in a Securities System, 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 bearer
securities if, on the date of payment by the issuer, such securities are
held by the Sub-Custodian or agent thereof and shall credit such income, as
collected, to the Fund's account. Without limiting the generality of the
foregoing, the Custodian shall cause the Sub-Custodian to 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 under the applicable Sub-Custodian Agreement.
Arranging for the collection of income due the Fund on securities loaned
pursuant to the provisions of Section 3.2.10 shall be the responsibility of
the Fund. The Custodian will have no duty or responsibility in connection
therewith, other than to provide the Fund with such information or data as
may be necessary to assist the Fund in arranging for the timely delivery to
the Sub-Custodian of the income to which the Fund is properly entitled.
3.8 Payment of Fund Monies. Upon receipt of Proper Instructions, which
may be continuing instructions when deemed appropriate by the parties, the
Custodian shall cause one or more Sub-Custodians to pay out monies of the
Fund in the following cases only:
3.8.1 Upon the purchase of securities for the account of the Fund but
only (a) against the delivery of such securities to the Sub-Custodian (or
any bank, banking firm or trust company doing business in the United States
or abroad which is qualified under the 1940 Act, as amended, to act as a
custodian and has been designated by the Sub-Custodian as its agent for
this purpose) or any Eligible Foreign Custodian or eligible securities
depository and registered in the name of the Fund or in the name of a
nominee of the Sub-Custodian, any Eligible Foreign Custodian or eligible
securities depository referred to in Section 3.3 hereof or in proper form
for transfer; provided, however, that the Sub-Custodian may cause monies of
the Fund to be paid out prior to delivery of such securities if (i) in the
Sub-Custodian's judgment, (A) payment prior to delivery is required by the
terms of the instrument evidencing the security or (B) payment prior to
delivery is the prevailing method of settling securities transactions
between institutional investors in the applicable market and (ii) payment
prior to delivery is in accordance with generally accepted trade practice
and with any applicable governmental regulations and the rules of
Securities Systems or other securities depositories and clearing agencies
in the applicable market; the Custodian agrees, upon request, to advise the
Fund of all pending transactions in which payment will be made prior to the
receipt of securities in accordance with the provision to the foregoing
sentence; (b) in the case of a purchase effected through a Securities
System, in accordance with the conditions set forth in Section 3.13 hereof;
or (c)(i) in the case of a repurchase agreement entered into between the
Fund and the Sub-Custodian, another bank, or a broker-dealer against
delivery of the securities either in certificate form or through an entry
crediting the Sub-Custodian's account at the Federal Reserve Bank with such
securities or (ii) in the case of a repurchase agreement entered into
between the Fund and the Sub-Custodian, against delivery of a receipt
evidencing purchase by the Fund of securities owned by the Sub-Custodian
along with written evidence of the agreement by the Sub-Custodian to
repurchase such securities from the Fund; or (d) for transfer to a time
deposit account of the Fund in any bank, whether domestic or foreign, which
transfer may be effected prior to receipt of a confirmation of the deposit
from the applicable bank or a financial intermediary;
3.8.2 In connection with conversion, exchange or surrender of securities
owned by the Fund as set forth in Section 3.2 hereof;
3.8.3 For the redemption or repurchase of shares issued by the Fund as
set forth in Section 3.10 hereof;
3.8.4 For the payment of any expense or liability incurred by the Fund,
including but not limited to the following payments for the account of the
Fund: interest, taxes, management, accounting, transfer agent and legal
fees, including the Custodian's fee; and operating expenses of the Fund
whether or not such expenses are to be in whole or part capitalized or
treated as deferred expenses;
3.8.5 For the payment of any dividends or other distributions declared to
shareholders of the Fund;
3.8.6 For transfer to another Sub-Custodian of the Fund;
3.8.7 For any other proper purpose, but only upon receipt of, in
addition to Proper Instructions, a certified copy of a resolution of the
Trustees or of the Executive Committee of the Fund signed by an officer of
the Fund and certified by its Clerk or an Assistant Clerk, 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 payments is to be made.
3.9 Liability for Payment in Advance of Receipt of Securities Purchased.
Except as otherwise provided in this Agreement, in any and every case
where payment for purchase of securities for the account of the Fund is
made by a Sub-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 cause the Sub-Custodian to be absolutely
liable to the Fund in the event any loss results to the Fund from the
payment by the Sub-Custodian in advance of delivery of such securities.
3.10 Payments for Repurchase or Redemptions of Shares of the Fund. From
such funds as may be available, the Custodian shall, upon receipt of Proper
Instructions, cause one or more Sub-Custodians to make funds available for
payment to a shareholder who has delivered to the Transfer Agent a request
for redemption or repurchase of shares of the Fund. In connection with the
redemption or repurchase of shares of the Fund, the Custodian is
authorized, upon receipt of Proper Instructions, to cause one or more
Sub-Custodian, to wire funds to or through a commercial bank designated by
the redeeming shareholder. In connection with the redemption or repurchase
of shares of the Fund, the Custodian, upon receipt of Proper Instructions,
shall cause one or more Sub-Custodians to honor checks drawn on the
Sub-Custodian by a shareholder when presented to the Sub-Custodian in
accordance with such procedures and controls as are mutually agreed upon
from time to time among the Fund, the Custodian and the Sub-Custodian.
3.11 Appointment of Agents with respect to U.S. Assets. With respect to
Fund assets maintained in the United States, the Custodian may permit any
Sub-Custodian at any time or times in its discretion to appoint (and may at
any time remove) any other bank or trust company which is itself qualified
under the 1940 Act to act as a custodian, as its agent to carry out such of
the provisions of this Section 3 as the Sub-Custodian may from time to time
direct; provided, however, that the appointment of any agent shall not
relieve the Custodian or any Sub-Custodian of its responsibilities or
liabilities hereunder and provided that any such agent shall have been
approved by vote of the Trustees of the Fund. The agents which the Fund
and the Custodian have approved to date are set forth in Schedule B hereto.
Any Sub-Custodian Agreement shall provide that the engagement by the
Sub-Custodian of one or more agents shall not relieve the Sub-Custodian of
its responsibilities or liabilities thereunder.
3.11A Appointment of Foreign Custody Manager. Pursuant to Rule 17f-5
under the 1940 Act, the Fund's Trustees appoint the Custodian as foreign
custody manager and delegate to the Custodian, and the Custodian accepts
such delegation and agrees to perform, the duties set forth below
concerning the safekeeping of the Fund's assets in each of the countries
set forth in Schedule B-1, as may be amended from time to time by the Fund
and the Custodian. The Custodian agrees to exercise reasonable care,
prudence and diligence such as a person having responsibility for the
safekeeping of the Fund's foreign assets would exercise. The Fund
acknowledges that advance notice may be required before the Custodian shall
be able to perform its duties with respect to a country added to Schedule
B-1 (such advance notice to be reasonable in light of the specific facts
and circumstances attendant to performance of duties in such country). The
Custodian may at any time and from time to time appoint, at its own cost
and expense, as a sub-foreign custody manager any Sub-Custodian that meets
the requirements of the 1940 Act and the rules and regulations thereunder
to act as a foreign custody manager, provided that the Fund shall have
approved the delegation of responsibilities to such Sub-Custodian as
sub-foreign custody manager, and the Custodian gives prompt notice to the
Fund of any such appointment. The Custodian or Sub-Custodian, as the case
may be, is authorized to take such actions on behalf of or in the name of
the Fund as are reasonably required to discharge its duties, which are as
follows:
3.11A.1 The Custodian shall cause the Sub-Custodian to place and maintain
the Fund's assets with a custodian; provided that (i) each custodian is
either an eligible foreign custodian, as defined in subparagraph (a)(1) of
Rule 17f-5 or a bank eligible to serve as a custodian under Section 17(f)
of the 1940 Act ("Eligible Foreign Custodian"); and (ii) the Sub-Custodian
shall have determined that the Fund's assets will be subject to reasonable
care, based on the standards applicable to custodians in the relevant
market, after considering all factors relevant to the safekeeping of such
assets, including, without limitation, those factors set forth in clauses
(i) through (iv) of subparagraph (c)(1) of Rule 17f-5.
3.11A.2 The foreign custody arrangements are governed by a written contract
that the Sub-Custodian has determined will provide reasonable care for the
Fund's assets based on those factors set forth in clauses (i) through (iv)
of subparagraph (c)(1) of Rule 17f-5, which contract shall include the
provisions required by clause (i) of subparagraph (c)(2) of Rule 17f-5, or
in lieu of any or all of such provisions, the contract may contain such
other provisions that the Sub-Custodian determines will provide, in their
entirety, the same or a greater level of care and protection for the Fund's
assets as the provisions set forth in such clause, in their entirety.
3.11A.3 The Sub-Custodian shall have established a system to monitor at
reasonable intervals (but at least annually) the appropriateness of
maintaining the Fund's assets with each Eligible Foreign Custodian selected
hereunder. The Sub-Custodian shall monitor the continuing appropriateness
of placement of the Fund's assets in accordance with the criteria set forth
above. The Sub-Custodian shall monitor the continuing performance of the
contract governing the Fund's arrangements in accordance with the criteria
set forth above.
3.11A.4 The Custodian shall provide to the Fund's Trustees at least
annually, and more frequently if requested by the Fund, written reports
specifying placement of the Fund's assets with each Eligible Foreign
Custodian selected hereunder, and shall promptly report as to any material
changes to the Fund's foreign custody arrangements.
3.11A.5 If an arrangement with a specific Eligible Foreign Custodian
selected hereunder no longer meets the requirements of this Agreement, the
Sub-Custodian shall withdraw the Fund's assets from the non-complying
arrangement as soon as reasonably practicable; provided, however, that if
in the reasonable judgement of the Sub-Custodian, such withdrawal would
require liquidation of any of the Fund's assets or would materially impair
the liquidity, value or other investment characteristics of the Fund's
assets, it shall be the duty of the Sub-Custodian to provide the Fund's
investment manager information regarding the particular circumstances and
to act only in accordance with Proper Instructions with respect to such
liquidation or other withdrawal.
If a specific Eligible Foreign Custodian fails to perform any of its
obligations under the terms and conditions of the applicable contract, the
Sub-Custodian shall use its best efforts to cause such Eligible Foreign
Custodian to perform such obligations. If the Sub-Custodian is unable to
cause such Eligible Foreign Custodian to perform fully its obligations
thereunder, the Sub-Custodian shall terminate such Eligible Foreign
Custodian and, if necessary or desirable, appoint another Eligible Foreign
Custodian.
At the written request of the Fund, the Custodian shall cause the
Sub-Custodian to terminate any Eligible Foreign Custodian in accordance
with the termination provisions under the applicable contract.
3.11A.6 Notwithstanding the foregoing provisions, the Fund, acting through
its Trustees, its investment manager or its other authorized
representative, may direct the Custodian (and, in turn, the Custodian may
direct the Sub-Custodian) to place and maintain the Fund's assets with a
particular Eligible Foreign Custodian. In such event, the Custodian and,
as applicable, the Sub-Custodian shall be entitled to rely on any such
instruction as a Proper Instruction under the terms of the Custodian
Agreement and the Sub-Custodian Agreement, respectively, and shall have no
duties under this Section with respect to such arrangement save those that
it may undertake specifically in writing with respect to each particular
instance.
3.11B Deposit of Fund Assets in Foreign Securities Depositories. The
Custodian may permit any Sub-Custodian to deposit and/or maintain non-U.S.
investments of the Fund in any non-U.S. Securities Depository provided such
Securities Depository meets the requirements of an "eligible securities
depository" under Rule 17f-7 under the 1940 Act, or any successor rule or
regulation, or which by order of the Securities and Exchange Commission is
exempted therefrom. Prior to the placement of any assets of the Fund with
a non-U.S. Securities Depository, the Sub-Custodian: (a) shall provide to
the Fund's investment manager an assessment of the custody risks associated
with maintaining assets with such Securities Depository; and (b) shall have
established a system to monitor the custody risks associated with
maintaining assets with such Securities Depository. The Sub-Custodian
shall monitor such risks on a continuing basis and promptly notify the
Fund's investment manager of any material changes in such risk. If an
arrangement with a non-U.S. Securities Depository with which the assets of
the Fund are maintained hereunder no longer meets the requirements of this
Agreement, the Sub-Custodian shall withdraw the Fund's assets from the
non-complying arrangement as soon as reasonably practicable; provided,
however, that if in the reasonable judgement of the Sub-Custodian, such
withdrawal would require liquidation of any of the Fund's assets or would
materially impair the liquidity, value or other investment characteristics
of the Fund's assets, it shall be the duty of the Sub-Custodian to provide
the Fund's investment manager with information regarding the particular
circumstances and to act only in accordance with Proper Instructions with
respect to such liquidation or other withdrawal. In performing its duties
under this subsection, the Sub-Custodian shall use reasonable care,
prudence and diligence. The Sub-Custodian may rely on such reasonable
sources of information as may be available including but not limited to:
(i) published ratings; (ii) information supplied by a subcustodian that is
a participant in such Securities Depository; (iii) industry surveys or
publications; (iv) information supplied by the depository itself, by its
auditors (internal or external) or by the relevant Foreign Financial
Regulatory Authority. It is acknowledged that information procured
through some or all of these sources may not be independently verifiable by
the Sub-Custodian and that direct access to Securities Depositories is
limited under most circumstances. Accordingly, the Sub-Custodian shall not
be responsible for errors or omissions in its duties hereunder provided
that it has performed its monitoring and assessment duties with reasonable
care. The risk assessment shall be provided to the Fund's investment
manager by such means as the Sub-Custodian shall reasonably establish.
Notice of material change in such assessment may be provided by the
Sub-Custodian in the manner established as customary for transmission of
material market information.
3.12 Deposit of Fund Assets in Securities Systems. The Custodian may
permit any Sub-Custodian to deposit and/or maintain securities owned by the
Fund in a clearing agency registered with the Securities and Exchange
Commission under Section 17A of the Securities Exchange Act of 1934, which
acts as a securities depository, or in the book-entry system authorized by
the U.S. Department of the Treasury and certain federal agencies,
collectively referred to herein as "Securities System" in accordance with
applicable rules and regulations (including Rule 17f-4 of the 0000 Xxx) and
subject to the following provisions:
3.12.1 The Sub-Custodian may, either directly or through one or more
agents, keep securities of the Fund in a Securities System provided that
such securities are represented in an account ("Account") of the
Sub-Custodian in the Securities System which shall not include any assets
of the Sub-Custodian other than assets held as a fiduciary, custodian or
otherwise for customers;
3.12.2 The records of the Sub-Custodian with respect to securities of
the Fund which are maintained in a Securities System shall identify by
book-entry those securities belonging to the Fund;
3.12.3 The Sub-Custodian shall pay for securities purchased for the
account of the Fund upon (i) receipt of advice from the Securities System
that such securities have been transferred to the Account, and (ii) the
making of an entry on the records of the Sub-Custodian to reflect such
payment and transfer for the account of the Fund. The Sub-Custodian shall
transfer 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 Sub-Custodian to reflect such transfer and payment for the account
of the Fund. Copies of all advices from the Securities System of transfers
of securities for the account of the Fund shall be maintained for the Fund
by the Sub-Custodian or such an agent and be provided to the Fund at its
request. The Sub-Custodian shall furnish the Fund confirmation of each
transfer to or from the account of the Fund in the form of a written advice
or notice and shall furnish to the Fund copies of daily transaction sheets
reflecting each day's transactions in the Securities System for the account
of the Fund on the next business day;
3.12.4 The Sub-Custodian shall provide the Fund with any report obtained
by the Sub-Custodian on the Securities System's accounting system, internal
accounting controls and procedures for safeguarding securities deposited in
the Securities System;
3.12.5 The Sub-Custodian shall utilize only such Securities Systems as
are approved by the Board of Trustees of the Fund, and included on a list
maintained by the Custodian;
3.12.6 Anything to the contrary in this Agreement notwithstanding, the
Sub-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 Sub-Custodian or any of its
agents or of any of its or their employees or from failure of the
Sub-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 Sub-Custodian with
respect to any claim against the Securities System or any other person
which the Sub-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.
3.12A Depositary Receipts. Only upon receipt of Proper Instructions,
the Sub-Custodian shall instruct an Eligible Foreign Custodian or an agent
of the Sub-Custodian appointed pursuant to the applicable Contract (an
"Agent") to surrender securities to the depositary used by an issuer of
American Depositary Receipts or International Depositary Receipts
(hereinafter collectively referred to as "ADRs") for such securities
against a written receipt therefor adequately describing such securities
and written evidence satisfactory to the Eligible Foreign Custodian or
Agent that the depositary has acknowledged receipt of instructions to issue
with respect to such securities ADRs in the name of the Sub-Custodian, or a
nominee of the Sub-Custodian, for delivery to the Sub-Custodian.
Only upon receipt of Proper Instructions, the Sub-Custodian shall surrender
ADRs to the issuer thereof against a written receipt therefor adequately
describing the ADRs surrendered and written evidence satisfactory to the
Sub-Custodian that the issuer of the ADRs has acknowledged receipt of
instructions to cause its depository to deliver the securities underlying
such ADRs to an Eligible Foreign Custodian or an Agent.
3.12B Foreign Exchange Transactions and Futures Contracts. Only upon
receipt of Proper Instructions, the Sub-Custodian shall enter into foreign
exchange contracts or options to purchase and sell foreign currencies for
spot and future delivery on behalf and for the account of the Fund or shall
enter into futures contracts or options on futures contracts. Such
transactions may be undertaken by the Sub-Custodian with such banking
institutions, including the Sub-Custodian and Eligible Foreign Custodian(s)
appointed pursuant to the applicable Contract, as principals, as approved
and authorized by the Fund. Foreign exchange contracts, futures contracts
and options, other than those executed with the Sub-Custodian, shall for
all purposes of this Agreement be deemed to be portfolio securities of the
Fund.
3.12C Option Transactions. Only upon receipt of Proper Instructions,
the Sub-Custodian shall enter into option transactions in accordance with
the provisions of any agreement among the Fund, the Custodian and/or the
Sub-Custodian and a broker-dealer.
3.13 Ownership Certificates for Tax Purposes. The Custodian shall cause
one or more Sub-Custodians as may be appropriate to 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
securities of the Fund held by the Sub-Custodian and in connection with
transfers of securities.
3.14 Proxies. The Custodian shall, with respect to the securities held
by the Sub-Custodians, cause to be promptly executed by the registered
holder of such securities, if the securities are registered other than in
the name of the Fund or a nominee of the fund, all proxies, without
indication of the manner in which such proxies are to be voted, and shall
promptly deliver to the Fund such proxies, all proxy soliciting materials
and all notices relating to such securities.
3.15 Communications Relating to Fund Portfolio Securities. The Custodian
shall cause the Sub-Custodians to transmit promptly to the Custodian, and
the Custodian shall transmit promptly to the Fund, all written information
(including, without limitation, pendency of calls and maturities of
securities and expirations of rights in connection therewith) received by
the Sub-Custodian from issuers of the securities being held for the account
of the Fund. With respect to tender or exchange offers, the Custodian
shall cause the Sub-Custodian to transmit promptly to the Fund, all written
information received by the Sub-Custodian from issuers of the securities
whose tender or exchange is sought and from the party (or his agents)
making the tender or exchange offer. If the Fund desires to take action
with respect to any tender offer, exchange offer or any other similar
transaction, the Fund shall notify the Custodian of the action the Fund
desires such Sub-Custodian to take, provided, however, neither the
Custodian nor the Sub-Custodian shall be liable to the Fund for the failure
to take any such action unless such instructions are received by the
Custodian at least four business days prior to the date on which the
Sub-Custodian is to take such action or, in the case of foreign securities,
such longer period as shall have been agreed upon in writing by the
Custodian and the Sub-Custodian.
3.16 Proper Instructions. Proper Instructions as used throughout this
Agreement means a writing signed or initialed by one or more person or
persons who are authorized by the Trustees of the Fund and the Custodian.
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 or Sub-Custodian, as the case may be,
reasonably believes them to have been given by a person authorized to give
such instructions with respect to the transaction involved. All oral
instructions shall be confirmed in writing. Proper Instructions also
include communications effected directly between electro-mechanical or
electronic devices provided that the Trustees have approved such
procedures. Notwithstanding the foregoing, no Trustee, officer, employee
or agent of the Fund shall be permitted access to any securities or similar
investments of the Fund deposited with any Sub-Custodian or any agent of
any Sub-Custodian for any reason except in accordance with the provisions
of Rule 17f-2 under the 1940 Act.
3.17 Actions Permitted Without Express Authority. The Custodian may in
its discretion, and may permit one or more Sub-Custodians in their
discretion, without express authority from the Fund to:
3.17.1 make payments to itself or others for minor expenses of handling
securities or other similar items relating to its duties under this
Agreement, or in the case of a Sub-Custodian, under the applicable
Sub-Custodian Agreement, provided that all such payments shall be accounted
for to the Fund;
3.17.2 surrender securities in temporary form for securities in
definitive form;
3.17.3 endorse for collection, in the name of the Fund, checks, drafts
and other negotiable instruments; and
3.17.4 in general, attend to all non-discretionary details in connection
with the sale, exchange, substitution, purchase, transfer and other
dealings with the securities and property of the Fund except as otherwise
directed by the Trustees of the Fund.
3.18 Evidence of Authority. The Custodian shall be protected in acting
upon any instructions, notice, request, consent, certificate or other
instrument or paper believed by it to be genuine and to have been properly
executed by or on behalf of the Fund.
3.19 Investment Limitations. In performing its duties generally, and
more particularly in connection with the purchase, sale and exchange of
securities made by or for the Fund, the Custodian may assume, unless and
until notified in writing to the contrary, that Proper Instructions
received by it are not in conflict with or in any way contrary to any
provisions of the Fund's Declaration of Trust or By-Laws (or comparable
documents) or votes or proceedings of the shareholders or Trustees of the
Fund. The Custodian shall in no event be liable to the Fund and shall be
indemnified by the Fund for any violation of any investment limitations to
which the Fund is subject or other limitations with respect to the Fund's
powers to expend funds, encumber securities, borrow or take similar actions
affecting its portfolio.
4. Performance Standards. The Custodian shall use its best efforts to
perform its duties hereunder in accordance with the standards set forth in
Schedule C hereto. Schedule C may be amended from time to time as agreed
to by the Custodian and the Trustees of the Fund.
5. Records. The Custodian shall create and maintain all records
relating to the Custodian's activities and obligations under this Agreement
and cause all Sub-Custodians to create and maintain all records relating to
the Sub-Custodian's activities and obligations under the appropriate
Sub-Custodian Agreement in such manner as will meet the obligations of the
Fund under the 1940 Act, with particular attention to Sections 17(f) and 31
thereof and Rules 17f-2, 31a-1 and 31a-2 thereunder, applicable federal and
state tax laws, and any other law or administrative rules or procedures
which may be applicable to the Fund. All such records shall be the
property of the Fund and shall at all times during the regular business
hours of the Custodian or during the regular business hours of the
Sub-Custodian, as the case may be, be open for inspection by duly
authorized officers, employees or agents of the Custodian and Fund and
employees and agents of the Securities and Exchange Commission. At the
Fund's request, the Custodian shall supply the Fund and cause one or more
Sub-Custodians to supply the Custodian with a tabulation of securities
owned by the Fund and held under this Agreement. When requested to do so
by the Fund and for such compensation as shall be agreed upon, the
Custodian shall include and cause one or more Sub-Custodians to include
certificate numbers in such tabulations.
6. Opinion and Reports of Fund's Independent Accountants. The Custodian
shall take all reasonable actions, as the Fund may from time to time
request, to furnish such information with respect to its activities
hereunder as the Fund's independent public accountants may request in
connection with the accountant's verification of the Fund's securities and
similar investments as required by Rule 17f-2 under the 1940 Act, the
preparation of the Fund's registration statement and amendments thereto,
the Fund's reports to the Securities and Exchange Commission, and with
respect to any other requirements of such Commission.
The Custodian shall also direct any Sub-Custodian to take all reasonable
actions, as the Fund may from time to time request, to furnish such
information with respect to its activities under the applicable
Sub-Custodian Agreement as the Fund's independent public accountant may
request in connection with the accountant's verification of the Fund's
securities and similar investments as required by Rule 17f-2 under the 1940
Act, the preparation of the Fund's registration statement and amendments
thereto, the Fund's reports to the Securities and Exchange Commission, and
with respect to any other requirements of such Commission.
7. Reports of Custodian's and Sub-Custodians' Independent Accountants.
The Custodian shall provide the Fund, at such times as the Fund may
reasonably require, with reports by its independent public accountant on
its accounting system, internal accounting controls and procedures for
safeguarding securities, including securities deposited and/or maintained
in Securities Systems, relating to services provided by the Custodian under
this Agreement. The Custodian shall also cause one or more of the
Sub-Custodians to provide the Fund, at such time as the Fund may reasonably
require, with reports by independent public accountants on their accounting
systems, internal accounting controls and procedures for safeguarding
securities, including securities deposited and/or maintained in Securities
Systems, relating to services provided by those Sub-Custodians under their
respective Sub-Custody Agreements. Such reports, which shall be of
sufficient scope and in sufficient detail as may reasonably be required by
the Fund, shall provide reasonable assurance that any material inadequacies
would be disclosed by such examinations, and, if there is no such
inadequacies, shall so state.
8. Compensation. The Custodian shall be entitled to reasonable
compensation for its services and expenses as custodian, as agreed upon
from time to time between the Fund and the Custodian. Such expenses shall
not include, however, the fees paid by the Custodian to any Sub-Custodian.
9. Responsibility of Custodian. The Custodian shall exercise reasonable
care and diligence in carrying out the provisions of this Agreement and
shall not be liable to the Fund for any action taken or omitted by it in
good faith without negligence. So long as and to the extent that it is in
the exercise of reasonable care, neither the Custodian nor any
Sub-Custodian shall 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, if in writing, reasonably believed by it
to be signed by the proper party or parties. It shall be entitled to rely
on and may act upon advice of counsel (who may be counsel for the Fund) on
all matters, and shall be without liability for any action reasonably taken
or omitted pursuant to such advice. Notwithstanding the foregoing, the
responsibility of the Custodian or a Sub-Custodian with respect to
redemptions effected by check shall be in accordance with a separate
Agreement entered into between the Custodian and the Fund.
It is also understood that the Custodian shall not be liable for any loss
resulting from a Sovereign Risk or Force Majeure. A "Sovereign Risk" shall
mean nationalization, expropriation, devaluation, revaluation,
confiscation, seizure, cancellation, destruction or similar action by any
governmental authority, de facto or de jure; or enactment, promulgation,
imposition or enforcement by any such governmental authority of currency
restrictions, exchange controls, taxes, levies or other charges affecting
the Fund's property; or acts of war, terrorism, insurrection or revolution;
or any other similar act or event beyond the Custodian's control. "Force
Majeure" shall mean any circumstance or event which is beyond the
reasonable control of the Custodian, a Sub-Custodian or any agent of the
Custodian or a Sub-Custodian and which adversely affects the performance by
the Custodian of its obligations hereunder, by the Sub-Custodian of its
obligations under its Sub-Custodian Agreement or by any other agent of the
Custodian or the Sub-Custodian, including any event caused by, arising out
of or involving (a) an act of God, (b) accident, fire, water damage or
explosion, (c) any computer, system or other equipment failure or
malfunction caused by any computer virus or the malfunction or failure of
any communications medium, (d) any interruption of the power supply or
other utility service, (e) any strike or other work stoppage, whether
partial or total, (f) any delay or disruption resulting from or reflecting
the occurrence of any Sovereign Risk, (g) any disruption of, or suspension
of trading in, the securities, commodities or foreign exchange markets,
whether or not resulting from or reflecting the occurrence of any Sovereign
Risk, (h) any encumbrance on the transferability of a currency or a
currency position on the actual settlement date of a foreign exchange
transaction, whether or not resulting from or reflecting the occurrence of
any Sovereign Risk, or (i) any other cause similarly beyond the reasonable
control of the Custodian.
If the Fund requires the Custodian which in turn may require a
Sub-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 or the Sub-Custodian result in the Custodian or its nominee or a
Sub-Custodian or its nominee being liable for the payment of money or
incurring liability of some other form, the Fund, as a prerequisite to
requiring the Custodian or the Custodian requiring any Sub-Custodian to
take such action, shall provide indemnity to the Custodian in an amount and
form satisfactory to it.
The Fund agrees to indemnify and hold harmless the Custodian and its
nominee from and against all taxes, charges, expenses, assessments, claims
and liabilities (including counsel fees) incurred or assessed against it or
its nominee or any Sub-Custodian or its nominee in connection with the
performance of this Agreement, or any Sub-Custodian Agreement except, as to
the Custodian, such as may arise from its or its nominee's own negligent
action, negligent failure to act or willful misconduct, and as to a
Sub-Custodian, such as may arise from such Sub-Custodian's or its nominee's
own negligent action, negligent failure to act or willful misconduct. The
negligent action, negligent failure to act or willful misconduct of the
Custodian shall not diminish the Fund's obligation to indemnify the
Custodian in the amount, but only in the amount, of any indemnity required
to be paid to a Sub-Custodian under its Sub-Custodian Agreement. The
Custodian may assign this indemnity from the Fund directly to, and for the
benefit of, any Sub-Custodian. The Custodian is authorized, and may
authorize any Sub-Custodian, to charge any account of the Fund for such
items and such fees. To secure any such authorized charges and any
advances of cash or securities made by the Custodian or any Sub-Custodian
to or for the benefit of the Fund for any purpose which results in the Fund
incurring an overdraft at the end of any business day or for extraordinary
or emergency purposes during any business day, the Fund hereby grants to
the Custodian a security interest in and pledges to the Custodian
securities up to a maximum of 10% of the value of the Fund's net assets for
the purpose of securing payment of any such advances and hereby authorizes
the Custodian on behalf of the Fund to grant to any Sub-Custodian a
security interest in and pledge of securities held for the Fund (including
those which may be held in a Securities System) up to a maximum of 10% of
the value of the net assets held by such Sub-Custodian. The specific
securities subject to such security interest may be designated in writing
from time to time by the Fund or its investment adviser. In the absence of
any designation of securities subject to such security interest, the
Custodian or the Sub-Custodian, as the case may be, may designate
securities held by it. Should the Fund fail to repay promptly any
authorized charges or advances of cash or securities, the Custodian or the
Sub-Custodian shall be entitled to use such available cash and to dispose
of pledged securities and property as is necessary to repay any such
authorized charges or advances and to exercise its rights as a secured
party under the U.C.C. The Fund agrees that a Sub-Custodian shall have the
right to proceed directly against the Fund and not solely as subrogee to
the Custodian with respect to any indemnity hereunder assigned to a
Sub-Custodian, and in that regard, the Fund agrees that it shall not assert
against any Sub-Custodian proceeding against it any defense or right of
set-off the Fund may have against the Custodian arising out of the
negligent action, negligent failure to act or willful misconduct of the
Custodian, and hereby waives all rights it may have to object to the right
of a Sub-Custodian to maintain an action against it.
10. Successor Custodian. If a successor custodian shall be appointed by
the Trustees of the Fund, the Custodian shall, upon termination, cause to
be delivered to such successor custodian, duly endorsed and in the form for
transfer, all securities, funds and other properties then held by the
Sub-Custodians and all instruments held by the Sub-Custodians relative
thereto and cause the transfer to an account of the successor custodian all
of the Fund's securities held in any Securities System.
If no such successor custodian shall be appointed, the Custodian shall, in
like manner, upon receipt of a certified copy of a vote of the Trustees of
the Fund, cause to be delivered at the office of the Custodian and transfer
such securities, funds and other properties in accordance with such vote.
In the event that no written order designating a successor custodian or
certified copy of a vote of the Trustees shall have been delivered to the
Custodian on or before the date when such termination shall become
effective, then the Custodian shall have the right to deliver to a bank or
trust company, which meets the requirements of the 1940 Act and the rules
and regulations thereunder, such securities, funds and other properties.
Thereafter, such bank or trust company shall be the successor of the
Custodian under this Agreement.
In the event that such securities, funds and other properties remain in the
possession of the Custodian or any Sub-Custodian after the date of
termination hereof owing to failure of the Fund to procure the certified
copy of the vote referred to or of the Trustees to appoint a successor
custodian, the Custodian shall be entitled to fair compensation for its
services during such period as the Sub-Custodians retain 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.
11. 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 the parties hereto and may be terminated by either
party by an instrument in writing delivered or mailed, postage prepaid to
the other party, such termination to take effect not sooner than thirty
(30) days after the date of such delivery or mailing; provided either party
may at any time immediately terminate this Agreement in the event of the
appointment of a conservator or receiver for the other party or upon the
happening of a like event at the direction of an appropriate regulatory
agency or court of competent jurisdiction. No provision of this Agreement
may be amended or terminated except by a statement in writing signed by the
party against which enforcement of the amendment or termination is sought.
Upon termination of the Agreement, 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 and through the Custodian any
Sub-Custodian for its costs, expenses and disbursements.
12. Interpretation. This Agreement constitutes the entire understanding
and agreement of the parties hereto with respect to the subject matter
hereof. In connection with the operation of this Agreement, the Custodian
and the Fund may from time to time agree in writing 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. No interpretive or additional provisions made as provided in
the preceding sentence shall be deemed to be an amendment of this
Agreement.
13. Governing Law. This instrument is executed and delivered in The
Commonwealth of Massachusetts and shall be governed by and construed
according to the internal laws of said Commonwealth, without regard to
principles of conflicts of law.
14. Notices. Notices and other writings delivered or mailed postage
prepaid to the Fund addressed to the Fund attention: Executive Vice
President, or to such other person or address as the Fund may have
designated to the Custodian in writing, or to the Custodian at Xxx Xxxx
Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 attention: Director of Custody
Services, or to such other address as the Custodian may have designated to
the Fund in writing, shall be deemed to have been properly delivered or
given hereunder to the respective addressee.
15. Binding Obligation. This Agreement shall be binding on and shall
inure to the benefit of the Fund and the Custodian and their respective
successors and assigns, provided that neither party hereto may assign this
Agreement or any of its rights or obligations hereunder without the prior
written consent of the other party.
16. Declaration of Trust. A copy of the Declaration of Trust of each of
the Funds is on file with the Secretary of The Commonwealth of
Massachusetts and notice is hereby given that this instrument is executed
on behalf of the Trustees of each of the Funds as Trustees and not
individually and that the obligations of this instrument are not binding on
any of the Trustees or officers or shareholders individually, but are
binding only on the assets and property of each Fund with respect to its
obligations hereunder.
IN WITNESS WHEREOF, each of the parties has caused this instrument to be
executed in its name and behalf as of the day and year first above written.
THE XXXXXX FUNDS LISTED IN SCHEDULE A
By:/s/Xxxxxxx X. Xxxxxx
--------------------------------------------
Xxxxxxx X. Xxxxxx
Executive Vice President and Treasurer
XXXXXX FIDUCIARY TRUST COMPANY
By:/s/Xxxx X. Xxxxxxxxx
--------------------------------------------
Xxxx X. Xxxxxxxxx
Managing Director and Director of Custody Services
Xxxxxx Investments, LLC ("Xxxxxx"), the owner of the Custodian, agrees
that Xxxxxx shall be the primary obligor with respect to compensation
due the Sub-Custodians pursuant to the Sub-Custodian Agreements in
connection with the Sub-Custodians' performance of their
responsibilities thereunder and agrees to take all actions necessary and
appropriate to assure that the Sub-Custodians shall be compensated in
the amounts and on the schedules agreed to by the Custodian and the
Sub-Custodians pursuant to those Agreements.
XXXXXX INVESTMENTS, LLC
By:/s/Xxxxx X. Xxxxx
--------------------------------------------
Xxxxx X. Xxxxx
Managing Director and Treasurer
