EXHIBIT 8(a)
CUSTODIAN CONTRACT
BETWEEN
XXXXXXX XXXXX TRUST
AND
STATE STREET BANK AND TRUST COMPANY
This Contract between Xxxxxxx Sachs Trust, a Massachusetts business trust,,
organized and existing under the laws of the Commonwealth of Massachusetts,
having its principal place of business at 0000 Xxxxx Xxxxx, Xxxxxxx, Xxxxxxxx
00000, hereinafter called the "Trust," and State Street Bank and Trust Company,
a Massachusetts trust company, having its principal place of business at 000
Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, 00000, hereinafter called the
"Custodian,"
W I T N E S S E T H:
WHEREAS, the Trust is authorized to issue units in separate series, with
each such series representing interests in a separate portfolio of securities
and other assets; and
WHEREAS, the Trust presently offers units in three series, known as the GS
Short-Term Government Agency Fund, GS Global Income Fund and GS Adjustable Rate
Government Agency Fund (such series together with all other series subsequently
established by the Trust and made subject to this Contract in accordance with
paragraph 7, being herein referred to as the "Fund(s)");
NOW THEREFORE, 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 Trust hereby employs the Custodian as the custodian of the assets of the
Funds of the Trust, including securities which the Trust, on behalf of the
applicable Fund, desires to be held in places within the United States
("domestic securities") and securities it desires to be held outside the United
States ("foreign securities") pursuant to the provisions of the Trust's
Declaration of Trust (the "Declaration of Trust") and By-laws. The Trust on
behalf of the Fund(s) agrees to deliver to the Custodian all securities and cash
of the Fund(s), and all payments of income, payments of principal or capital
distributions received by it with respect to all securities owned by the Fund(s)
from time to time, and the cash consideration received by it for such new or
treasury units of beneficial interest of the Trust representing interests in the
Fund(s), ("Units") as may be issued or sold from time to time. The Custodian
shall not be responsible for any property of a Fund held or received by the Fund
and not delivered to the Custodian.
Upon receipt of "Proper Instructions" (within the meaning of Section 5), the
Custodian shall on behalf of the applicable Fund(s) from time to time employ one
or more subcustodians located in the United States, but only in accordance with
an applicable vote by the Board of Trustees of the Trust on behalf of the
applicable Fund(s), and provided that the Custodian shall have no more or less
responsibility or liability to the Trust on account of any actions or omissions
of any subcustodian so employed than any such subcustodian has to the Custodian.
The Custodian may employ as subcustodian for the Trust's
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foreign securities on behalf of a Fund the foreign building 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
THE TRUST HELD BY THE CUSTODIAN IN THE UNITED STATES
2.1 Holding Securities. The Custodian shall hold and physically segregate
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for the account of each Fund all non-cash property, to be held by it in the
United States, including all domestic securities owned by such Fund, other than
(a) securities which are maintained pursuant to Section 2.10 in a clearing
agency which acts as a securities depository or in a book-entry system
authorized by the U.S. Department of the Treasury, collectively referred to
herein as "Securities System" and (b) commercial paper of an issuer for which
State Street Bank and Trust Company acts as issuing and paying agent ("Direct
Paper") which is deposited and/or maintained in the Direct Paper System of the
Custodian pursuant to Section 2.10A.
2.2 Delivery of Securities. The Custodian shall release and deliver domestic
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securities owned by a Fund held by the Custodian or in a Securities System
account of the Custodian or in the Custodian's Direct Paper book entry system
account ("Direct Paper System Account") only upon receipt of Proper Instructions
from the Trust on behalf of the applicable Fund, which may be continuing
instructions when deemed appropriate by the parties, and only in the following
cases:
(1) Upon sales 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 entered into by the Fund;
(3) In the case of a sale effected 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 securities for 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 name of any nominee or nominees of the Custodian or
into the name or nominee name of any agent appointed pursuant to
Section 2.9 or into the name or nominee name of any subcustodian
appointed pursuant to Article 1; or for exchange for a different number
of bonds, certificates or other evidence representing the same
aggregate face amount or number of units; provided that, in any such
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case, the new securities are to be delivered to the Custodian;
(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 Custodian shall have no responsibility or liability for any
loss arising from the delivery of such securities prior to receiving
payment for such securities except as may arise from the Custodian's
own negligence or willful misconduct;
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(8) For exchange or conversion pursuant to any plan of merger,
consolidation, recapitalization, recapitalization, reorganization or
readjustment of the securities of the issuer of such securities, or
pursuant to provisions for conversion contained in such securities, or
pursuant to any deposit agreement; provided that, in any such case, the
new securities and cash, if any, are to be delivered to the Custodian;
(9) In the case of warrants, rights or similar securities, the surrender
thereof in the exercise of such warrants, rights or similar securities
or the surrender of interim receipts or temporary securities for
definitive securities; provided that, in any such case, the new
securities and cash, if any, are to be delivered to the Custodian;
(10) For delivery in connection with any loans of securities made a Fund,
but only against receipt of adequate collateral as agreed upon from
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time to time by the Custodian and the Trust on behalf of the Fund,
which may be in the form of cash or obligations issued by the United
States government, its agencies or instrumentalities, except that in
connection with any loans for which collateral is to be credited to the
Custodian's account in the book-entry system authorized by the U.S.
Department of the Treasury, the Custodian will not be held liable or
responsible for the delivery of securities owned by the Fund prior to
the receipt of such collateral;
(11) For delivery as security in connection with any borrowings by the
Trust on behalf of the Fund requiring a pledge of assets by the Trust
on behalf of the Fund, but only against receipt of amounts borrowed;
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(12) For delivery in accordance with the provisions of any agreement among
the Trust on behalf of 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 and of any registered national securities
exchange, or of any similar organization or organizations, regarding
escrow or other arrangements in connection with transactions by the
Fund;
(13) For delivery in accordance with the provisions of any agreement among
the Trust on behalf of 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 the
transactions by the Fund;
(14) Upon receipt of instructions from the transfer agent ("Transfer
Agent") for the Trust, for delivery to such Transfer Agent or to the
holders of units in connection with distributions in kind, as may be
described from time to time in the currently effective prospectus and
statement of additional information of the Trust, related to the Fund
("Prospectus"), in satisfaction of requests by holders of Units for
repurchase or redemption; and
(15) For any other proper corporate purpose, but only upon receipt of, in
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addition to Proper Instructions from the Trust on behalf of the
applicable Fund, a certified copy of a resolution of the Board of
Trustees or of the Executive Committee signed by an officer of the
Trust and certified by the Secretary or an Assistant Secretary,
specifying the securities of the Fund to be delivered, setting forth
the purpose for which such delivery is 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.
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2.3 Registration of Securities. Domestic securities held by the Custodian
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(other than bearer securities) shall be registered in the name of the Fund or in
the name of any nominee of the Trust on behalf of the Fund or of any nominee of
the Custodian which nominee shall be assigned exclusively to the Fund, unless
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the Trust 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 2.9 or in the name of nominee name of any subcustodian
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. If, however, the Trust directs the Custodian to
maintain securities in a "street name," the custodian shall utilize its best
efforts only to timely collect income due the Trust on such securities and to
notify the Trust on a best efforts basis only of relevant corporate actions
including, without limitation, pendency of calls, maturities, tender or exchange
offers.
2.4 Bank Accounts. The Custodian shall open and maintain a separate bank
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account or accounts in the United States in the name of each Fund of the Trust,
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 bank account established and used in
accordance with Rule 17f-3 under the Investment Company Act of 1940. Funds held
by the Custodian for a Fund may be deposited by it to its credit as Custodian in
the Banking Department of the Custodian or in such other banks or trust
companies as it may in its discretion deem necessary or desirable; provided,
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however, that every bank or trust company shall be qualified to act as 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 on behalf of each applicable Fund be approved by vote of a majority of the
Board of Trustees of the Trust. Such funds shall be deposited by the Custodian
in its capacity as Custodian and shall be withdrawable by the Custodian only in
that capacity.
2.5 Availability of Federal Funds. Upon mutual agreement between the Trust on
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behalf of each applicable Fund and the Custodian, the Custodian shall, upon the
receipt of Proper Instructions from the Trust on behalf of the Fund, make
federal funds available to such Fund as of specified times agreed upon from time
to time by the Trust and the Custodian in the amount of checks received in
payment for Units of such Fund which are deposited into the Fund's account.
2.6 Collection of Income. Subject to the provisions of Section 2.3, the
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Custodian shall collect on a timely basis all income and other payments with
respect to registered securities held hereunder to which each 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 Custodian or its agent thereof and shall credit such income, as
collected, to such 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 each
Fund on securities loaned pursuant to the provisions of Section 2.2 (10) shall
be the responsibility of the Trust. The Custodian will have not duty or
responsibility in connection therewith, other than to provide the Trust with
such information or data as may be necessary to assist the Trust in arranging
for the timely delivery to the Custodian of the income to which the Fund is
properly entitled.
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2.7 Payment of Trust Monies. Upon receipt of Proper Instructions from the
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Trust on behalf of the applicable Fund, which may be continuing instructions
when deemed appropriate by the parties, the Custodian shall pay out monies of a
Fund in the following cases only:
(1) Upon the purchase of domestic securities, options, futures contracts or
options on futures contracts for the account of the Fund but only:
(a) Against the delivery of such securities or evidence of title to such
options, futures contracts to the Custodian (or any bank, banking firm
or trust company doing business in the United States or abroad which is
qualified under the Investment Company Act of 1940, as amended, 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 nominee of the Custodian referred to in Section 2.3 hereof or in
proper form for transfer;
(b) In the case of a purchase effected through a Securities System, in
accordance with the conditions set forth in Section 2.10 hereof;
(c) In the case of a purchase involving the Direct Paper System, in
accordance with the conditions set forth in Section 2.10A;
(d) In the case of repurchase agreements entered into between the Trust on
behalf of 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
(ii) against delivery of the receipt evidencing purchase by the Fund of
securities owned by the Custodian along with written evidence of
the agreement by the Custodian to repurchase such securities from
the Fund; or
(e) For transfer to a time deposit account of the Trust in any bank,
whether domestic or foreign; such transfer may be effected prior to
receipt of a confirmation from a broker and/or the applicable bank
pursuant to Proper Instructions from the Trust as defined in Section 5;
(2) In connection with conversion, exchange or surrender of securities
owned by the Fund as set forth in Section 2.2 hereof;
(3) For the redemption of repurchase of Units issued by the Fund as set
forth in Section 4.2 hereof;
(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, and operating expenses of the Trust whether or not such
expenses are to be in whole or part capitalized or treated as deferred
expenses;
(5) For the payment of any dividends on Units of the Fund declared pursuant
to the governing documents of the Trust;
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(6) For payment of the amount of dividends received in respect of
securities sold short;
(7) For any other proper purpose, but only upon receipt of, in addition to
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Proper Instructions from the Trust on behalf of the Fund, a certified
copy of a resolution of the Board of Trustees or of the Executive
Committee of the Trust signed by an officer of the Trust and certified
by its Secretary or an Assistant Secretary, specifying the amount of
such payment, setting forth the purpose for which such payment is to
be made, declaring such purpose to be a proper purpose, and naming the
person or persons to whom such payment is to be made.
2.8 Liability for Payment in Advance of Receipt of Securities Purchased.
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Except as specifically stated otherwise in this Contract, in any and every case
where payment for purchase of domestic securities for the account of a Fund is
made by the Custodian in advance of receipt of the securities purchased in the
absence of specific written instructions from the Trust on behalf of such Fund
to so pay in advance, the Custodian shall be absolutely liable to the Trust 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 times in its
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discretion appoint (and may at any time remove) any other bank or trust company
which is itself qualified under the Investment Company Act of 1940, as amended,
to act as a custodian, as its agent to carry out such of the provisions of this
Article 2 as the Custodian may from time to time direct; provided, however, that
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the appointment of any agent shall not relieve the Custodian of its
responsibilities or liabilities hereunder.
2.10 Deposit of Trust Assets in Securities System. The Custodian may deposit
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and/or maintain securities owned by a 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 Exchange Commission rules and regulations, if any, and subject
to the following provisions:
(1) The Custodian may keep 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 held as a fiduciary,
custodian or otherwise for customers;
(2) The records of the 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) The Custodian shall pay for securities purchased for the account of the
Fund upon:
(a) Receipt of advice from the Securities System that such securities have
been transferred to the Account; and
(b) The making of an entry on the records of the Custodian to reflect such
payment and transfer for the account of the Fund.
The Custodian shall transfer securities sold for the account of the Fund
upon:
(a) Receipt of advice from the Securities System that payment for such
securities has been transferred to the Account; and
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(b) The making of an entry on the records of the 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 identify the Fund, be maintained for the
Fund by the Custodian and be provided to the Trust at its request. Upon
request, the Custodian shall furnish the Trust on behalf of 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 Trust on behalf
of the Fund copies of daily transaction sheets reflecting each day's
transactions in the Securities System for the account of the Fund.
(4) The Custodian shall provide the Trust for the Fund with any report obtained
by the Custodian on the Securities System's accounting system, internal
accounting control and procedures for safeguarding securities deposited in
the Securities System.
(5) The Custodian shall have received from the Trust on behalf of the Fund the
initial or annual certificate, as the case may be, required by Article 14
hereof.
(6) Anything to the contrary in this Contract notwithstanding, the Custodian
shall be liable to the Trust for the benefit of 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 Trust, it shall be entitled
to by 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.
2.10A Trust Assets Held in the Custodian's Direct Paper System. The
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Custodian may deposit and/or maintain securities owned by a Fund in the Direct
Paper System of the Custodian subject to the following provisions:
(1) No transactions relating to securities in the Direct Paper System will be
effected in the absence of Proper Instructions from the Trust on behalf of
the Fund.
(2) The Custodian may keep securities of the Fund in the Direct Paper System
only if such securities are represented in an account ("Account") of the
Custodian in the Direct Paper System which shall not include any assets of
the Custodian other than assets held as a fiduciary, custodian or otherwise
for customers.
(3) The records of the Custodian with respect to securities of the Fund which
are maintained in the Direct Paper System shall identify by book-entry
those securities belonging to the Fund.
(4) The Custodian shall pay for securities purchased for the account of the
Fund upon the making of an entry on the records of the Custodian to reflect
such payment and transfer of securities to the account of the Fund. The
Custodian shall transfer securities sold for the account of the Fund upon
the making of an entry on the records of the Custodian to reflect such
transfer and receipt of payment for the account of the Fund.
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(5) The Custodian shall furnish the Trust on behalf of the Fund confirmation of
each transfer to or from the account of the Fund, in the form of a written
advice or notice, of Direct Paper on the next business day following such
transfer and shall furnish to the Trust on behalf of the Fund copies of
daily transaction sheets reflecting each day's transaction in the Securities
System for the account of the Fund.
(6) The Custodian shall provide the Trust on behalf of the Fund with any report
on its system of internal accounting control as the Trust may reasonably
request from time to time.
2.11 Segregated Account. The Custodian shall upon receipt of Proper
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Instructions from the Trust on behalf of each applicable Fund establish and
maintain a segregated account or accounts for and on behalf of each such Fund,
into which account or accounts may be transferred cash and/or securities,
including securities maintained in an account by the Custodian pursuant to
Section 2.10 hereof, (i) in accordance with the provisions of any agreement
among the Trust on behalf of 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 Commodity 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 similar 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 contract or options thereon purchased or sold by the Fund,
(iii) for the purposes of compliance by the Fund with the procedures required by
Investment Company Act 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) upon receipt of,
in addition to Proper Instructions from the Trust on behalf of the applicable
Fund, a certified copy of a resolution of the Board of Trustees or of the
Executive Committee signed by an officer of the Trust 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
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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 each Fund held by it and in connection with transfers of
securities.
2.13 Proxies. The Custodian shall, with respect to the domestic securities
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held hereunder, cause to be promptly executed by the registered holder of such
securities, if the securities are registered otherwise than in the name of the
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.
2.14 Communications Relating to Fund Securities. Subject to the provisions of
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Section 2.3, the Custodian shall transmit promptly to the Trust for each Fund
all written information (including, without limitation, pendency of calls and
maturities of securities and expirations of rights in connection therewith and
notices of exercise of call and put options written by the Trust on behalf of
the Fund and the maturity of futures contracts purchased or sold by the Fund)
received by the Custodian from issuers of the securities being held for the
Fund. With respect to tender or exchange offers, the Custodian shall transmit
promptly to the Fund all written information received by the Custodian from
issuers of the securities whose tender or exchange
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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 at least three business days prior to the date on which the Custodian
is to take such action.
3. DUTIES OF THE CUSTODIAN WITH RESPECT TO PROPERTY OF THE TRUST HELD OUTSIDE
OF THE UNITED STATES
3.1 Appointment of Foreign Subcustodians. The Trust hereby authorizes and
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instructs the Custodian to employ as subcustodians for the Fund's securities and
other assets maintained outside the United States the foreign banking
institutions and foreign securities depositories designated on Schedule A hereto
("foreign subcustodians"). Upon receipt of "Proper Instructions", as defined in
Section 5 of this Contract, together with a certified resolution of the Trust's
Board of Trustees, the Custodian and the Trust may agree to amend Schedule A
hereto from time to time to designate additional foreign banking institutions
and foreign securities depositories to act as subcustodian. Upon receipt of
Proper Instructions, the Trust may instruct the Custodian to cease the
employment of any one or more such subcustodians for maintaining custody of the
Fund's assets.
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3.2 Assets to be Held. The Custodian shall limit the securities and other
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assets maintained in the custody of the foreign subcustodians to: (a) "foreign
securities," as 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 Trust may determine to be reasonably necessary to effect the
Fund's foreign securities transactions.
3.3 Foreign Securities Depositories. Except as may otherwise be agreed upon in
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writing by the Custodian and the Trust, assets of the Fund shall be maintained
in foreign securities depositories only through arrangements implemented by the
foreign banking institutions serving as subcustodians pursuant to the terms
hereof. Where possible, such arrangements shall include entry into agreements
containing the provisions set forth in Section 3.5 hereof.
3.4 Segregation of Securities. The Custodian shall identify on its books as
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belonging to each applicable Fund of the Trust, the foreign securities of such
Funds held by each foreign subcustodian. Each agreement pursuant 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 Trust
for each applicable Fund of the Trust and physically segregate in each account,
securities and other assets of the Funds, and, in the event that such
institution deposits the securities of one or more of the Funds in a foreign
securities depository, that it shall identify on its books as belonging to the
Custodian, as agent for each applicable Fund, the securities so deposited.
3.5 Agreements with Foreign Banking Institutions. Each agreement with a
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foreign banking institution shall be substantially in the form set forth in
Exhibit 1 hereto and shall provide that: (a) the assets of each Fund will not
be subject to any right, charge, security interest, lien or claim of any kind in
favor of the foreign banking institution or its creditors or agent, except a
claim of payment for their safe custody or administration; (b) beneficial
ownership of the assets of each Fund 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 each
applicable Fund; (d) officers of or auditors employed by, or other
representatives of the Custodian, including to the extent permitted under
applicable law the independent public accountants for the Trust, 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 Funds
held by the foreign subcustodian will be subject only to the instructions of the
Custodian or its agents.
3.6 Access of Independent Accountants of the Trust. Upon request of the Trust,
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the Custodian will use its best efforts to arrange for the independent
accountants of the Trust to be afforded access to the books and records of any
foreign banking institution employed as a foreign subcustodian insofar as such
books and records relate to the performance of such foreign banking institution
under its agreement with the Custodian.
3.7 Reports by Custodian. The Custodian will supply to the Trust from time to
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time, as mutually agreed upon, statements in respect of the securities and other
assets of the Fund held by foreign subcustodians, including but not limited to
an identification of entities having possession of Fund securities and other
assets and advices or notifications of any transfers of securities to or from
each custodial account maintained by a foreign banking institution for the
Custodian on behalf of each applicable Fund indicating, as to securities
acquired for a Fund, the identity of the entity having physical possession of
such securities.
3.8 Transactions in Foreign Custody Account.
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(a) Except as otherwise provided in paragraph (b) of this Section 3.8, the
provision of Sections 2.2 and 2.7 of this Contract shall apply, mutatis mutandis
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to the foreign securities of the Trust held outside the United States by foreign
subcustodians.
(b) Notwithstanding any provision of this Contract to the contrary, settlement
and payment for securities received for the account of each applicable Fund
and delivery of securities maintained for the account of each applicable
Fund may be effected in accordance with the customary established
securities trading or securities processing practices and procedures in the
jurisdiction or market in which the transaction occurs, including, without
limitation, delivering securities to the purchaser thereof or to a dealer
therefor (or an agent for such purchaser or dealer) against a receipt with
the expectation of receiving later payment for such securities from such
purchaser or dealer.
(c) Securities maintained in the custody of a foreign subcustodian may be
maintained in the name of such entity's nominee to the same extent as set
forth in Section 2.3 of this Contract, and the Trust agrees to hold any
such nominee harmless from any liability as a holder of record of such
securities.
3.9 Liability of Foreign Subcustodians. Each agreement pursuant to which the
----------------------------------
Custodian employs a foreign banking institution as a foreign subcustodian shall
require the institution to exercise reasonable care in the performance of its
duties and to indemnify, and hold harmless, the Custodian and each 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 Trust, 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 Trust has not been made whole for any such loss,
damage, cost, expense, liability or claim.
3.10 Liability of Custodian. The Custodian shall be liable for the acts or
----------------------
omissions of a foreign banking institution to the same extent as set forth with
respect to subcustodians generally in this Contract and, regardless of whether
assets are maintained in the custody of a foreign banking institution, a foreign
securities depository or a branch of a U.S. bank as contemplated by paragraph
3.13 hereof, the Custodian shall not be liable for any loss, damage, cost,
expense, liability or claim resulting from nationalization, expropriation,
currency restrictions, or acts of war or terrorism or any loss where the
subcustodian has otherwise exercised reasonable care. Notwithstanding the
foregoing provisions of this paragraph 3.10, in delegating custody duties to
State Street London Ltd., the Custodian shall not be relieved of any
responsibility to the Trust for any loss due to such delegation, except such
loss as may result from (a) political risk (including, but not limited to,
exchange control restrictions, confiscation, expropriation, nationalization,
insurrection, civil strife or armed hostilities) or (b) other losses (excluding
a bankruptcy or insolvency of State Street London Ltd. not caused by political
risk) due to Acts of God, nuclear incident or other losses under circumstances
where the Custodian and State Street London Ltd. have exercised reasonable care.
11
3.11 Reimbursement for Advances. If the Trust requires the Custodian to
--------------------------
advance cash or securities for any purpose for the benefit of a Fund including
the purchase or sale of foreign exchange or of contracts for foreign exchange,
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 applicable Fund shall be
security therefor and should the Trust fail to repay the Custodian promptly, the
Custodian shall be entitled to utilize available cash and to dispose of such
Fund assets to the extent necessary to obtain reimbursement.
3.12 Monitoring Responsibilities. The Custodian shall furnish annually to the
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Trust, during the month of June, information concerning the foreign
subcustodians employed by the Custodian. Such information shall be similar in
kind and scope to that furnished to the Trust in connection with the initial
approval of this Contract. In addition, the Custodian will promptly inform the
Trust in the event that the Custodian learns of a material adverse change in the
financial condition or custodial capabilities of a foreign subcustodian or any
material loss of the assets of the Trust or, in the case of any foreign
subcustodian not the subject of an exemptive order from the Securities and
Exchange Commission, if notified by such foreign subcustodian that there appears
to be a substantial likelihood that its unitholders' equity will decline below
$200 million (U.S. dollars or the equivalent thereof) or that its unitholders'
equity has declined below $200 million (in each case computed in accordance with
generally accepted U.S. accounting principles).
3.13 Branches of U.S. Banks.
----------------------
(a) Except as otherwise set forth in this Contract, the provisions of this
Article 3 shall not apply where the custody of Fund assets are maintained
in a foreign branch of a banking institution which is a "bank" as defined
by Section 2(a)(5) of the Investment Company Act of 1940 meeting the
qualification set forth in Section 26(a) of said Act. The appointment of
any such branch as a subcustodian shall be governed by paragraph 1 of this
Contract.
(b) Cash held for each Fund of the Trust in the United Kingdom shall be
maintained in an interest bearing account established for the Trust with
the Custodian's London branch, which account shall be subject to the
direction of the Custodian, State Street London Ltd. or both.
4. PAYMENTS FOR SALES OR REPURCHASES OR REDEMPTIONS OF UNITS OF THE TRUST
4.1 Payment for Units. The Custodian shall receive from the distributor for
-----------------
the Units or from the Transfer Agent of the Trust and deposit into the account
of the appropriate Fund such payments as are received for Units of that Fund
such payments as are received for Units of that Fund issued or sold from time to
time by the Trust. The Custodian will provide timely notification to the Trust
on behalf of each such Fund and the Transfer Agent of any receipt by it of
payments for Units of such Fund.
4.2 Payments for Repurchase or Redemptions of Units of the Trust. From such
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funds as may be available for the purpose but subject to the limitations of the
Trust's Declaration of Trust and By-laws and any applicable votes of the Board
of Trustees of the Trust pursuant thereto, the Custodian shall, upon receipt of
instructions from the Transfer Agent, make funds available for payment to
holders of Units who have delivered to the Transfer Agent a request for
redemption or repurchase of their Units. In connection with the redemption or
repurchase of Units of a
12
Fund, the Custodian is authorized upon receipt of instructions from the Transfer
Agent to wire funds to or through a commercial bank designated by the redeeming
unitholders.
5. PROPER INSTRUCTIONS
Proper Instructions as used throughout this Contract means a writing signed or
initialled by one or more person or persons as the Board of Trustees shall have
from time to time authorized. Each such writing shall set forth the specific
transaction or type of transaction involved, including a specific statement of
the purpose for which such action is requested. Oral instructions will be
considered Proper Instructions if the Custodian reasonably believes them to have
been given by a person authorized to give such instructions with respect to the
transaction involved. The Trust shall cause all oral instructions to be
confirmed in writing. Upon receipt of a certificate of the Secretary or an
Assistant Secretary as to the authorization by the Board of Trustees of the
Trust accompanied by a detailed description of procedures approved by the Board
of Trustees, Proper Instructions may include communications effected directly
between electro-mechanical or electronic devices provided that the Board of
Trustees and the Custodian are satisfied that such procedures afford adequate
safeguards for the Fund's assets. For purposes of this Section, Proper
Instructions shall include instructions received by the Custodian pursuant to
any three-party agreement which requires a segregated asset account in
accordance with Section 2.11.
6. ACTIONS PERMITTED WITHOUT EXPRESS AUTHORITY
The Custodian may in its discretion, without express authority from the Trust on
behalf of each applicable Fund:
(1) Make payments to itself or others for minor expense of handling securities
or other similar items relating to its duties under this Contract, provided
--------
that all such payments shall be accounted for to the Trust on behalf of the
Fund;
(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-discretional 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
Board of Trustees of the Trust.
7. 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 Trust. The
Custodian may receive and accept a certified copy of a vote of the Board of
Trustees of the Trust as conclusive evidence: (i) of the authority of any
person to act in accordance with such vote or (ii) of any determination or of
any action by the Board of Trustees pursuant to the Trust's Declaration of Trust
or By-laws as described in such vote, and such vote may be considered as in full
force and effect 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 shall cooperate with and supply necessary information to the
entity or entities appointed by the Board of Trustees of the Trust to keep the
books of account of each Fund and/or compute the
13
net asset value per share of the outstanding Units of each Fund or, if directed
in writing to do so by the Trust on behalf of the Fund, shall itself keep such
books of account and/or compute such net asset value per share. If so desired,
the Custodian shall also calculate daily the net income of the Fund as described
in the Trust's currently effective prospectus related to such Fund and shall
advise the Trust and the Transfer Agent daily of the total amounts of such net
income and, if instructed in writing by an officer of the Trust to do so, shall
advise the Transfer Agent periodically of the division of such net income among
its various components. The calculations of the net asset value per share and
the daily income of each Fund shall be made at the time or times described from
time to time in the Trust's currently effective prospectus related to such Fund.
9. RECORDS
The Custodian shall with respect to each Fund create and maintain all records
relating to its activities and obligations under this Contract in such manner as
will meet the obligations of the Trust under the Investment Company Act of 1940,
with particular attention to Section 31 thereof and Rules 31a-1 and 31a-2
thereunder. All such records shall be the property of the Trust 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 Trust and
employees and agents of the Securities and Exchange Commission. The Custodian
shall, at the Trust's request, supply the Trust with a tabulation of securities
owned by each Fund and held by the Custodian and shall, when requested to do so
by the Trust and for such compensation as shall be agreed upon between the Trust
and the Custodian, include certificate numbers in such tabulations.
10. OPINION OF TRUST'S INDEPENDENT ACCOUNTANTS
The Custodian shall take all reasonable action, as the Trust on behalf of each
applicable Fund may from time to time request, to obtain from year to year
favorable opinions from the Trust's independent accountants with respect to its
activities hereunder in connection with the preparation of the Trust'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. REPORTS TO TRUST BY INDEPENDENT PUBLIC ACCOUNTANTS
The Custodian shall provide the Trust, on behalf of each Fund at such times as
the Trust may reasonably require, with reports by independent public accountants
on the accounting system, internal accounting control and procedures for
safeguarding securities, futures contracts and options on futures contracts,
including securities deposited and/or maintained in a Securities system,
relating to the services provided by the Custodian under this Contract; such
reports, shall be of sufficient scope and in sufficient detail as may reasonably
be required by the Trust to provide reasonable assurance that any material
inadequacies would be disclosed by such examination, and, if there are no
inadequacies, the reports shall so state.
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12. COMPENSATION OF CUSTODIAN
The Custodian shall be entitled to reasonable compensation for its services and
expenses as Custodian, as agreed upon from time to time between the Trust on
behalf of each applicable Fund and the Custodian.
13. RESPONSIBILITY OF THE 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 held harmless in acting upon any notice, request,
consent, certificate or other instrument reasonably believed by it to be genuine
and to be signed by the proper party or parties, including any futures
commissions merchant acting pursuant to the terms of a three-party futures or
options agreement. The Custodian shall be held to the exercise of reasonable
care in carrying out the provisions of this Contract, but shall be kept
indemnified by and shall be without liability to the Trust for any action taken
or omitted by it in good faith without negligence or misconduct; provided,
however, that the Custodian uses reasonable care to provide prompt notice to the
Trust of (i) the circumstances and all pertinent facts of which the Custodian
has knowledge giving rise to the claim for indemnification or the reasonable
likelihood that such a claim may be made, and (ii) the Custodian's claim for
such indemnification. The Trust, using counsel of its choice, shall have the
option to defend the Custodian against any claim which may be the subject of
this indemnification and upon the exercise of such option the Custodian shall
not be entitled to indemnification for further legal or other expenses in
connection therewith. The Custodian shall in no case confess any claim or make
any compromise or settlement in any case in which the Trust shall be asked to
indemnify the Custodian, except with the prior written consent of the Trust.
The Custodian shall be entitled to rely on and may act upon advice of reasonably
selected counsel (who may be counsel for the Trust) 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 effected by check shall be in accordance with a separate
Agreement entered into between the Custodian and the Trust.
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
as set forth in Article 1 hereof with respect to subcustodians located in the
Untied States (except as specifically provided in Article 3.10) and, regardless
of whether assets are maintained in the custody of a foreign banking
institution, a foreign securities depository 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 Trust to maintain custody of any
securities or cash of the Trust in a foreign country including, but not limited
to, losses resulting from nationalization, expropriation, currency restrictions,
or acts of war or terrorism.
If the Trust on behalf of a 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 Custodian or its
nominee assigned to the Trust or the Fund being liable for the payment of money
or incurring liability of some other form, the Trust on behalf of 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 Trust requires the Custodian to advance cash or securities for any
purpose for the benefit of a Fund including the purchase or sale of foreign
exchange contracts 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
15
held for the account of the applicable Fund shall be security therefor and
should the Trust fail to repay the Custodian promptly, the Custodian shall be
entitled to utilize available cash and to dispose of such Fund's assets to the
extent necessary to obtain reimbursement.
No series or portfolio of the Trust shall be liable for any claims against any
other Fund of the Trust.
14. EFFECTIVE PERIOD, TERMINATION AND AMENDMENT
This Contract 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, however, that the
--------
Custodian shall not with respect to a Fund act under Section 2.10 hereof in the
absence of receipt of an initial certificate of the Secretary or an Assistant
Secretary that the Board of Trustees of the Trust has approved the initial use
of a particular Securities System by such Fund and the receipt of an annual
certificate of the Secretary or an Assistant Secretary that the Board of
Trustees has reviewed the use by such Fund of such Securities System, as
required in each case by Rule 17f-4 under the Investment Company Act of 1940, as
amended and that the Custodian shall not with respect to a Fund act under
Section 2.10A hereof in the absence
of receipt of an initial certificate of the Secretary or an Assistant Secretary
that the Board of Trustees has approved the initial use of the Direct Paper
System by such Fund and the receipt of an annual certificate of the Secretary or
an Assistant Secretary that the Board of Trustees has reviewed the use by such
Fund of the Direct Paper System; provided further, however, that the Trust shall
----------------
not amend or terminate this Contract in contravention of any applicable federal
or estate regulations, or any provision of the Trust's Declaration of Trust or
By-laws, and further provided, that the Trust on behalf of one or more of the
Funds may at any time by action of its Board of Trustees (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 the Comptroller of
the Currency or upon the happening of a like event at the direction of an
appropriate regulatory agency or court of competent jurisdiction.
Upon termination of the Contract, the Trust on behalf of each applicable 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.
15. SUCCESSOR CUSTODIAN
If a successor custodian for the Trust, of one or more of the Funds shall be
appointed by the Board of Trustees of the Trust, the Custodian shall, upon
termination, deliver to such successor custodian at the office of the Custodian,
duly endorsed and in the form for transfer, all securities of each applicable
Fund then held by it hereunder and shall transfer to an account of the successor
custodian all of the securities of each such Fund held in a 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 Board of Trustees of
the Trust, 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 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 is a "bank" as defined in the Investment Company Act of 1940,
doing business in Boston, Massachusetts, of its own selection, having an
aggregate capital, surplus, and undivided profits, as shown by its last
published report, of not less than $25,000,000, all securities, funds and
16
other properties held by the Custodian on behalf of each applicable Fund and all
instruments held by the Custodian relative thereto and all other property held
by it under this Contract on behalf of each applicable Fund and to transfer to
an account of such successor custodian all of the securities of each such Fund
held 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 the Custodian after the date of termination hereof owing to
failure of the Trust to procure the certified copy of the vote referred to or of
the Board of Trustees to appoint a successor custodian, the Custodian shall be
entitled to fair compensation for its services during such period as the
Custodian retains possession of such securities, funds and other properties and
the provisions of this Contract relating to the duties and obligations of the
Custodian shall remain in full force and effect.
16. INTERPRETIVE AND ADDITIONAL PROVISIONS
In connection with the operation of this Contract, the Custodian and the Trust
on behalf of each of the Funds, may from time to time agree on 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 interpretive or additional provisions shall be in writing signed by both
parties and shall be annexed hereto, provided that no such interpretive or
--------
additional provisions shall contravene any applicable federal or state
regulations or any provision of the Declaration of Trust or By-laws of the
Trust. No interpretive or additional provisions made as provided in the
preceding sentence shall be deemed to be an amendment of this Contract.
17. ADDITIONAL FUNDS
In the event that the Trust establishes one or more series of Units in addition
to GS Short-Term Government Agency Fund, GS Global Income Fund and GS Adjustable
Rate Government Agency Fund, with respect to which it desires to have the
Custodian render services as custodian under the terms hereof, it shall so
notify the Custodian in writing, and if the Custodian agrees in writing to
provide such services, such series of Units shall become a Fund hereunder.
18. MASSACHUSETTS LAW TO APPLY
THIS CONTRACT SHALL BE CONSTRUED AND THE PROVISIONS THEREOF INTERPRETED UNDER
AND IN ACCORDANCE WITH LAWS OF MASSACHUSETTS.
17
19. PRIOR CONTRACTS
This Contract supersedes and terminates, as of the date hereof, all prior
contracts between the Trust on behalf of each of the Funds and the Custodian
relating to the custody of the Trust's assets.
IN WITNESS WHEREOF, each of the parties has caused this instrument to be
executed in its name and behalf by its duly authorized representative and its
seal to be hereunder affixed as of the 15th day of July , 1991.
XXXXXXX XXXXX TRUST
Attest: Xxxxxxxx X. Xxxxxxxxx By: Xxxxxxx Xxxxx Xxxxx
-------------------------------- ----------------------
Xxxxxxxx X. Xxxxxxxxx Xxxxxxx Xxxxx Xxxxx
Assistant Secretary of the Trust President of the Trust
STATE STREET BANK AND TRUST COMPANY
Attest: X. Xxxxxx By: Xxxxxxx X. Xxxxxxxx
---------------- --------------------
Assistant Secretary Its: Vice President
18
