CUSTODIAN AGREEMENT
I. DESIGNATION OF CUSTODIAN
XXXXXXXXXXX NEW YORK TAX-EXEMPT FUND (the "Fund"), an open-end series
management investment company organized as a Massachusetts business trust having
an office at Two World Trade Center, New York, New York 10048, hereby designates
Citibank, N.A. (the "Bank"), a National Banking Corporation incorporated under
the laws of the United States of America and having an office at 000 Xxxx
Xxxxxx, Xxx Xxxx, XX 00000, as Custodian of the Property (as defined in Section
III) of the Fund. By its acceptance, the Bank agrees to serve as such Custodian
upon the terms and conditions set forth in this Agreement.
II. DELIVERY OF DOCUMENTS
(a) Documents delivered. The Fund delivers to the Bank
herewith the following documents:
(i) Resolutions authorizing the appointment of the
Bank as the custodian of the Fund and the
execution by the Fund of this Agreement;
(ii) copies, certified by the appropriate officer or
officers, of the charter and the by-laws of the
Fund; and
(iii) incumbency and signature certificates identifying
and containing the signatures of the officers of
the Fund and/or other signatories authorized to
sign Instructions (as defined below) on behalf of
the Fund, specifying the number of signatures
required for Instructions and identifying the
trustees and the other officers, if any, of the
Fund.
(b) Changes. In case of any change or changes affecting any of the
documents described in this Section II, the Fund shall deliver new documents to
the Bank, to the extent necessary to reflect such change or changes. Unless and
until such new documents are delivered and an authorized signatory of the Bank
has issued a receipt for the delivery thereof, the Bank shall be under no
obligation to act (or omit to act), in accordance with any such
change, nor shall the Bank be liable for failure so to act (or omit to act), but
the Bank shall act in accordance with the documents which such new documents are
to replace.
(c) Additional information. The Fund shall furnish to the Bank any
additional information and documentation relating to the Fund and the Fund's
management company (if any) which the Bank may reasonably request.
(d) "Resolutions" defined. The term "Resolutions," as used in this
Agreement, means (i) if the trustees of the Fund are authorized to transact
business of the Fund by signing an instrument setting forth such business,
resolutions signed by the number of trustees of the Fund so authorized and (ii)
in all other cases, copies of resolutions of the trustees of the Fund, certified
by the appropriate officer or officers of the Fund.
(e) "Depository" defined. The term "Depository" as used in this
Agreement means any "system" or "person" contemplated by Section 17 (f) of the
Investment Company Act of 1940 in which the Banks may, under that Section and
any rules, regulations or orders thereunder, deposit all or part of the Fund's
securities with the consent of the Fund, and to which the Fund has consented.
(f) "Receipt" of payment defined. Whenever this Agreement contemplates
receipt of payment by the Bank, such receipt shall mean receipt by the Bank of
(i) cash or check of a national securities exchange certified or issued by a
bank (which term, as used in this Agreement, shall include a trust company and a
Federal Reserve Bank), or a Depository; or (ii) written or telegraphic advice
from a bank, registered clearing agency or a Depository that funds have or will
be credited to the account of the Fund or the Bank at one or more of the
foregoing; or (iii) a bank wire from a correspondent bank of the Bank; or (iv)
payment other than the foregoing, if specified in Instructions relating to the
transaction in question.
III. THE PROPERTY
(a) Property delivered. The Fund shall deliver the Property, or cause
the Property to be delivered, to the Bank or a Depository, subject to the
provisions of this Agreement. Upon delivery, the securities at the time included
in the Property, unless held by a Depository, shall be in bearer form or shall
be registered in the name of a nominee of the Bank (with or without indication
of fiduciary status) or shall be properly endorsed and in form for
transfer satisfactory to the Bank.
(b) "Property" defined. The term "Property," as used in the
Agreement, means:
(i) any and all securities and other property which
the Fund may from time to time deposit, or cause
to be deposited, with the Bank or a Depository,
(ii) all income, including option premiums, in respect
of any of such securities or other property,
(iii) all proceeds of the sale of any such securities or
other property,
(iv) all proceeds, of the sale of securities issued by
the Fund, which are received by the Bank from time
to time from the Fund or its transfer agent, and
(v) any stocks, shares, bonds, financial futures
contracts, indexes, debentures, notes, mortgages
and other obligations, and any certificates,
receipts, warrants or other financial instruments
representing absolute or conditional rights or
options to receive, purchase, subscribe for or
sell the same or evidencing or representing any
other rights or interests therein, or any other
property or assets, irrespective of their form,
the name by which they may be described, whether
considered as securities or commodities, or the
character or form of the entities by which they
are issued or created.
(c) Holding of Securities. The Bank shall hold in a separate account,
and physically segregate at all times from those of any other persons, firms or
corporations, pursuant to the provisions hereof, all securities which are part
of the Property, other than those held by a Depository. All such securities are
to be held or disposed of by the Bank, or by a Depository, subject at all times
to Instructions pursuant to the terms of this Agreement. The Bank shall have no
power or authority to (or to cause a Depository to) assign, hypothecate, pledge,
or otherwise dispose of any such securities except pursuant to Instructions and
only for the account of the Fund, as set forth in Section VI of this Agreement.
The Bank will, upon receipt of proper Instructions, segregate
cash and/or securities of the Fund into escrow accounts in the name of a
designated broker or exchange clearing organization which is a party with the
Fund to an agreement relating to the financial futures contracts described in
paragraph (b) of this Section III. The Bank will confirm the terms of such
escrow to the broker or clearing organization and provide a copy of such
confirmation to the Fund. The Bank will not, however, make any payment or
transfer from any such escrow account except to the named broker or clearing
organization upon receipt of written notice by such broker or clearing
organization representing that the Fund is in default of a specified obligation
for which the escrow was established and setting forth the amount represented to
be due by the Fund to such broker or clearing organization.
IV. REGISTRATION OF SECURITIES:
COMMERCIAL ACCOUNTS; OVERDRAFTS; RECEIPT OF SECURITIES
(a) Registration of securities. The securities included in the Property
shall, unless held by a Depository, be held in bearer form or in the name of one
or more nominees of the Bank.
(b) Commercial accounts. The Bank shall open and maintain a commercial
account or accounts in the name of the Fund, subject only to the Bank's draft or
order after receipt of Instructions, and the Bank shall deposit in such account
or accounts all cash constituting, or which is to become, part of the Property.
The Bank shall make payments of cash to or for the account, of the Fund from
such cash accounts only pursuant to Section VI of this Agreement or as otherwise
specifically provided in this Agreement.
(c) Overdrafts. At the sole discretion of the Bank, the Bank will
permit the incurrence of cash overdrafts in any account of the Fund with the
Bank (i) in aid of the timely and orderly clearance of securities transactions
in the course of the Fund's normal business, trading and investment operations
or (ii) in connection with payments to Shareholders all or a portion of whose
shares in the Fund have been or are being Redeemed, but only upon receipt by the
Bank of Instructions to do so. The Bank shall not be obligated to incur or
permit the incurrence of any such overdraft and the Bank shall not be liable to
the Fund or any third party for any refusal, failure or neglect on the part of
the Bank to incur or permit the incurrence of any such overdraft. As used in
this Agreement, the terms "Redeem" and "Redemption" refer to
redemptions, purchases and other acquisitions by the Fund of shares in the Fund
from Shareholders, and the term "Shareholder" means a shareholder or former
shareholder of the Fund.
(d) Payment of overdrafts; interest. The Fund shall pay to the Bank,
and the Bank may deduct from the Property, the amount of each overdraft referred
to in Section IV (c), together with interest thereon at such rate as the Bank
may from time to time notify to the Fund (such rate not to exceed the rate at
such time charged by the Bank to its prime commercial borrowers by more than
1-1/2 percentage points), upon the Bank's demand therefore.
(e) "Receipt" of securities defined. Whenever this Agreement
contemplates receipt of securities by the Bank, such receipt shall mean receipt
by the Bank of (i) securities in bearer form or in form of transfer satisfactory
to the Bank; or (ii) written or telegraphic advice from a Depository that
securities have been credited to the account of the Fund or the Bank at the
Depository; or (iii) written or telegraphic advice from any bank or responsible
commercial agent doing business in the United States or any foreign country and
designated by the Bank as its agent for this purpose that such securities have
been deposited with it.
V. INSTRUCTIONS
(a) "Instructions" defined. As used in this Agreement, the term
"Instructions" means instructions, with respect to any specified transaction
(except as otherwise indicated in this Agreement), in writing or by telecopier,
tested telegram, cable or Telex or by facsimile sending device, signed in the
name of the Fund by the requisite number of Fund officers or authorized
signatories of the Fund as the Board of Trustees or executive committee of the
Fund has authorized to give the particular class of Instructions in question.
Different persons may be authorized to give Instructions for different purposes.
Instructions may be general or specific in terms.
(b) Instructions consistent with charter, etc. Although the Bank may
take cognizance of the provisions of the charter and by-laws of the Fund as from
time to time amended, the Bank may assume that any Instructions received
hereunder are not in any way inconsistent with any provision of such charter or
by-laws or any vote, resolution or proceeding of the shareholders or the
trustees, or of any committee of either thereof, of the Fund.
(c) Authority of Fund's signatories. The incumbency and signature
certificates most recently delivered to the Bank pursuant to Section II (a)
(iii) shall constitute evidence of the authority of the signatories designated
therein to act on behalf of the Fund.
VI. TRANSACTIONS REQUIRING INSTRUCTIONS
(a) Payments of cash. The Bank shall make payments of cash
to or for the account of the Fund only as follows or as otherwise
specifically provided in this Agreement:
(i) upon receipt of Instructions to do so, the Bank
shall make payment for and receive all securities
purchased for the account of the Fund (insofar as
cash is available, or insofar as the Bank is
willing to permit an overdraft or overdrafts in
the Fund's account or accounts with the Bank, for
such purpose), payment to be made only upon
receipt of the securities, provided that, if any
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such securities (or any securities to be received
free for the Fund's account) are not received by
the Bank on or before the thirtieth day following
the date of the Bank's receipt of the Instructions
to receive such securities, the Bank may, but need
not, consider such Instructions cancelled unless
and until the Bank received further Instructions
reinstating such original Instructions;
(ii) upon receipt of Instructions to do so, the Bank
shall make payment to a bank of principal of or
interest on bank loans made to the Fund;
(iii) upon receipt of Instructions to do so, the Bank
shall make payments for the Redemption of shares of
the Fund (subject to the provisions of Section VIII
(a) of this Agreement);
(iv) upon receipt of Instructions to do so, the Bank
shall make payments for the payment of dividends,
taxes, management or supervisory fees or operating
expenses (including, without limitation thereto,
fees for legal, accounting and auditing services);
(v) upon receipt of Instructions to do so, the Bank
shall make payments in connection with conversion,
exchange or surrender of securities owned or
subscribed to by the Fund held by or to be
received by the Bank;
(vi) upon receipt of Instructions to do so, the Bank
will make payments pursuant to a specified
agreement for loaning the Fund's securities (which
Instructions shall identify the loan agreement
under which the payment is to be made, the date of
payment, the name of the borrower and the
securities to be received, if any in exchange for
the payment); and
(vii) upon receipt of Instructions to do so, the Bank
shall make payment for other proper corporate
purposes, but only on receipt of a Resolution
certified as set forth in the definition of that
term and countersigned by another officer of the
Fund 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 corporate purpose, and naming the person or
persons to whom such payment is to be made.
(b) Transfer, Exchange or Delivery of Securities. The bank shall
transfer, exchange or deliver securities which are part of the Property only as
follows: upon receipt of Instructions to do so, the Bank shall deliver (or cause
a Depository to deliver) securities against such payment or other consideration
or written receipt therefor as shall be specified in such Instructions, in the
following cases: (i) upon sales of such securities for the account of the Fund
and receipt by the Bank of payment therefor; (ii) for examination by a broker
selling for the account of the Fund in accordance with street delivery custom;
(iii) for payment when such Property has been called, redeemed or retired, or
has otherwise become payable at the option of the holder thereof; (iv) in
exchange for, or for conversion into, other securities and/or cash pursuant to
any plan of merger, consolidation or reorganization, recapitalization,
readjustment or other rearrangement of the issuer; (v) for deposit with a
reorganization committee or protective committee pursuant to a deposit
agreement; (vi) for conversion into or exchange for other securities, or into or
for other securities and cash, in accordance with any conversion or exchange
right or option relating thereto; (vii) in the case of warrants, rights or other
similar securities, upon the exercise
thereof; (viii) in the case of interim receipts or temporary securities, upon
the surrender thereof for definitive securities; (ix) upon the exercise of a
call written by the Fund for which the Bank (or a Depository) has written an
escrow receipt (which term, as used in this Agreement, shall include an option
guarantee letter), subject to the provisions of Section VI(e); (x) for the
deposit of securities in a Depository; (xi) for the purpose of Redemption in
kind of shares of the Fund (subject to Section VIII(a) of this Agreement); (xii)
for the purpose of loaning securities against receipt by the Bank of collateral
therefor (the Instructions as to which shall specify the securities to be
delivered, the loan agreement under which the delivery is to be made, the date
of delivery, the name of the borrower and the amount of collateral to be
received in connection therewith); and (xiii) for other proper corporate
purposes. The Bank shall make a delivery described in Section VI(c)(xiii) only
on receipt of a Resolution certified as set forth in the definition of that term
and countersigned by another officer of the Fund specifying the securities,
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 said delivery is to be made.
(c) Exercise of rights, etc. The Bank shall deal with rights, warrants
and similar securities received by it hereunder only in the manner and to the
extent ordered by Instructions received by the Bank.
(d) Voting. Neither the Bank nor its nominees shall vote any of the
securities included in the Property or authorize the voting of any such
securities or give any consent, approval or waiver with respect thereto, except
as directed by Instructions received by the Bank. The Bank shall promptly
deliver, or cause to be executed and delivered, to the Fund all notices, proxies
and proxy soliciting materials with relation to such securities, such proxies to
be executed by the registered holder of such securities (if registered otherwise
than in the name of the Fund) but without indicating the manner in which such
proxies are to be voted.
(e) Escrow receipts. In accordance with mutually agreed-upon
arrangements and upon receipt of Instructions to do so, the Bank will execute,
or cause a Depository to execute, an escrow receipt relating to a call written
by the Fund upon receipt of payment for the premium therefor. Such Instructions
shall contain all information necessary for the issuance of such receipts and
will
authorize the deposit of the securities named in such Instructions into an
escrow account of the Fund. Securities so deposited into an escrow account will
be held by the Bank or Depository subject to the terms of such escrow receipt.
However, the Bank agrees that it will not deliver, or cause a Depository to
deliver, any securities deposited in an escrow account pursuant to an exercise
notice unless the Bank has received Instructions to do so or (i) the Bank has
duly requested the issuance of such Instructions, (ii) at least two business
days have elapsed since the receipt of such request by the Fund, and (iii) the
Fund has not advised the Bank by Instructions that it has purchased securities
that are to be delivered by the Bank or a Depository pursuant to the exercise
notice. The Fund agrees that it will not issue any Instructions to the Bank with
respect to the Property which shall conflict with the terms of any escrow
receipt executed by the Bank or any Depository in relation to the Fund and which
is then in effect. The parties understand that the Fund may write calls on
securities ("underlying securities") which are not part of the Property and
issue Instructions to the Bank to execute, or cause a Depository to execute, an
escrow receipt on securities ("convertible securities") which are, or are to be,
part of the Property and are convertible into the underlying securities. In such
event, the Fund agrees that (i) any Instructions by it as to the execution of
the escrow receipt will relate only to such convertible securities, and (ii) any
Instructions by it as to the delivery of securities relating to such call will
relate only to such convertible securities without responsibility on the part of
the Bank to effect any conversion thereof.
VII. TRANSACTIONS NOT REQUIRING INSTRUCTIONS
(a) Collection of income and other payments. In the absence
of contrary instructions, the Bank shall:
(i) collect and receive, for the account of the Fund,
all income and other payments and distributions,
including (without limitation) stock dividends,
rights, warrants and similar items, included or to
be included in the Property, and promptly advise
the Fund of such receipt;
(ii) take any action which may be necessary and proper
in connection with the collection and receipt of
such income and other payments and distributions,
including (without limitation) the execution of
ownership and exemption certificates, the
presentation of coupons and other interest items,
the presentation for payment of securities which
have become payable as a result of their being
called, redeemed or retired, or otherwise becoming
payable, otherwise than at the option of the holder
thereof, and the endorsement for collection of
checks, drafts and other negotiable instruments;
and
(iii) receive and hold for the account of the Fund all
securities received as a distribution on
securities held by the Fund as a result of a stock
dividend, share split-up or reorganization,
recapitalization, readjustment or other
rearrangement or distribution of rights or similar
securities issued with respect to any securities
of the Fund held by the Bank hereunder, provided
that the Bank shall not be required to transact
any item of business referred to in this Section
VII(a) with respect to a security which is not
covered by a published securities manual
reasonably available to the Custodian Services
Department of the Bank (or the successor to such
Department in the event of any administrative
rearrangement of the Bank) unless and until such
Custodian Services Department (or its successor)
has received a notice specifying (x) the item of
business in question and (y) such additional
information as will permit the Bank to transact
such item of business properly and without
unreasonable inconvenience to such Custodian
Services Department (or its successor).
(b) Cash disbursements. In the absence of contrary Instructions, the
Bank may make cash disbursements for minor expenses in handling securities and
for similar items in connection with the Bank's duties under this Agreement. The
Bank shall promptly advise the Fund of disbursements so made.
(c) Delivery of information and documents. The Bank shall promptly
deliver to the Fund all information and documents received by the Bank and
relating to the Property including (without limitation) pendency of calls and
maturities of securities and expiration of rights in connection therewith
received by the Bank
from issuers of securities being held for the Fund. With respect to tender or
exchange offers, the Bank shall transmit promptly to the Fund all written
information received from issuers of the securities whose tender or exchange is
being sought and from the party (or his agents) making the tender or exchange
offer.
VIII TRANSACTIONS REQUIRING SPECIAL INSTRUCTIONS
(a) Redemptions. Upon receipt of Instructions to do so, the Bank shall
deliver Property in connection with Redemptions (insofar as monies or, in a case
referred to in clause (iii) below, other Property is available, or insofar as
the Bank is willing to permit an overdraft or overdrafts in the Fund's account
or accounts with the Bank for such purpose), provided that the Instructions
covering each Redemption shall contain (i) the number of shares Redeemed, (ii)
the net asset value (determined pursuant to the regulations of the Fund, as from
time to time amended, which govern determination of net asset value) of such
shares on the effective date of such Redemption and (iii) specification of any
Property other than cash which the Bank is to deliver pursuant thereto.
(b) Extraordinary transactions. In the case of any of the
following transactions, not in the ordinary course of the business
of the Fund:
(i) the merger or consolidation of the Fund and
another investment company,
(ii) the sale by the Fund of all or substantially all
of its assets, or
(iii) liquidation of the Fund or dissolution of the Fund
and distribution of its assets,
the Bank shall deliver Property only upon receipt of Instructions and advice of
counsel satisfactory to the Bank (who may be counsel for the Fund, at the option
of the Bank) to the effect that all necessary corporate action therefor has been
taken, or will be taken concurrently with the Bank's action.
IX. RIGHT TO RECEIVE ADVICE
(a) Advice of Fund. If the Bank shall be in doubt as to any
action to be taken or omitted by it, it may request, and shall
receive, from the Fund directions or advice, including Instructions
where appropriate.
(b) Advice of counsel. If the Bank shall be in doubt as to any
questions of law involved in any action to be taken or omitted by the Bank, it
may request advice from counsel of its own choosing (who may be counsel for the
Fund, at the option of the Bank).
(c) Conflicting advice. In case of conflict between directions, advice
or Instructions received by the Bank pursuant to Section IX(a) and advice
received by the Bank pursuant to Section IX(b), the Bank shall be entitled to
rely on and follow the advice received pursuant to Section IX(b) alone.
(d) Absolute protection to Bank. The Bank shall be absolutely protected
in any action or inaction which it takes in reliance on any directions, advice
or Instructions received pursuant to Section IX(a) or (b) or which the Bank,
after receipt of any such directions, advice or Instructions, in good faith
believes to be consistent with such directions, advice or Instructions, as the
case may be. However, nothing in this Section IX shall be construed as imposing
upon the Bank any obligation (i) to seek such directions, advice or
Instructions, or (ii) to act in accordance with such directions or advice when
received, unless, under the terms of another provision of this Agreement, the
same is a condition to the Bank's properly taking or omitting to take such
action.
X. STATEMENTS
The Bank shall render to the Fund statements of the transactions in the
accounts of the Fund at the following times: the Bank shall furnish the Fund
both on a daily and a monthly basis with a statement summarizing all
transactions and entries for the account of the Fund. The Bank shall furnish the
Fund at the end of every month with a list of the portfolio securities held by
it or a Depository as custodian for the Fund, adjusted for all commitments
confirmed by the Fund as of such time, certified by a duly authorized officer of
the Bank. The books and records of the Bank pertaining to its actions under this
Agreement shall be open to inspection and audit at all times by officers of the
Fund, its auditors and officers of its investment adviser.
XI. COMPENSATION
(a) Ordinary services. The Fund shall pay to the Bank, and
the Bank may deduct from the Property, for its services under this Agreement
(other than the services referred to in Section XI(c)) compensation based on a
schedule of charges to be agreed from time to time.
(b) Expenses. The Fund shall reimburse the Bank for all expenses, taxes
and other charges (including, without limitation, interest and other items
charged by brokers in respect of debit balances and delayed deliveries) paid by
the Bank with respect to the property of the Fund, or incurred by the Bank on
behalf of the Fund in the performance of the Bank's duties hereunder, provided
that the Bank shall be entitled to reimbursement with respect to the fees and
disbursements of counsel only (i) as set forth in Sections XI(c) and XII or (ii)
when the Fund breaches or threatens to breach, or the Fund's management company
(if any) threatens to cause a breach, of this Agreement or when it would
reasonably appear to a man untrained in the law that such a breach exists or is
threatened, to the extent that the fees and disbursements of such counsel relate
to such actual or apparent breach or threatened breach. If the Bank submits to
the Fund a bill for such reimbursement and the Fund does not, within 15 days
after such submission, notify the Bank that the bill is disapproved and make a
reasonable counter-offer in writing, the bill shall be deemed approved and the
Bank may deduct such reimbursement from the Property.
(c) Extraordinary services. The Fund shall pay to the Bank, and the
Bank may deduct from the Property, for its services as the Fund's agent in
paying a Shareholder consideration, consisting wholly or partially of property
other than cash, in connection with the Redemption of all or any part of such
Shareholder's shares in the Fund compensation equal to 1/10 of 1% of the amount
computed by subtracting from the aggregate Redemption price of such shares the
cash, if any, paid to such Shareholder in respect of such Redemption. Without
limiting the generality of the provisions of Section XI(b), the Fund shall
reimburse to the Bank, and the Bank may deduct from the Property reimbursement
for, the fees and disbursements of the Bank's counsel attributable to such
counsel's services in respect of each such Redemption.
XII. INDEMNIFICATION
The Fund, as sole owner of the Property, will indemnify the Bank and
each of the Bank's nominees, and hold the Bank and such
nominees harmless, and the Bank may deduct from the Property indemnification,
against all costs, liabilities (including, without limitation, liabilities under
the Securities Act of 1933, the Securities Exchange Act of 1934, the Investment
Company Act of 1940 and any state and foreign securities and blue sky laws, all
as from time to time amended) and expenses, including (without limitation)
attorney's fees and disbursements, arising directly or indirectly (i) from the
fact that securities included in the Property are registered in the name of any
such nominee, or (ii) without limiting the generality of the foregoing clause
(i), from any action or thing which the Bank takes or does or omits to take or
do, (A) at the request or on the directions or in reliance on the advice of the
Fund, or of the Fund's management company (if any), or (B) upon Instructions,
provided that neither the Bank nor any of its nominees shall be indemnified
against any liability to the Fund or to its Shareholders (or any expense
incident to such liability) arising out of (x) the Bank's or such nominee's own
willful misfeasance, bad faith, negligence or reckless disregard of its duties
under this Agreement or (y) the Bank's own negligent failure to perform its
duties under Section VII(a)(ii).
XIII. RESPONSIBILITY: COLLECTIONS
(a) Responsibility of Bank. The Bank shall be under no duty to take any
action on behalf of the Fund except as specifically set forth herein or as may
be specifically agreed to by the Bank in writing. In the performance of the
Bank's duties hereunder, the Bank shall be obligated to exercise care and
diligence, but the Bank shall not be liable for any act or omission which does
not constitute gross negligence, willful misfeasance or bad faith on the part of
the Bank or reckless disregard by the Bank of its duties under this Agreement,
provided that the Bank shall be responsible for its own negligent failure to
perform any of its duties under this Agreement. Without limiting the generality
of the foregoing or of any other provisions of this Agreement, the Bank shall
not be under any duty or obligation to inquire into and shall not be liable for
or in respect of (i) the validity or invalidity or authority or lack thereof of
any Instruction, notice or other instrument which conforms to the applicable
requirements of this Agreement, if any, and which the Bank reasonably believes
to be genuine, or (ii) the validity or invalidity of the issuance of any
securities included or to be included in the Property, the legality or
illegality of the purchase of such securities, or the propriety or impropriety
of the amount paid therefor, or (iii) the legality or illegality of the sale (or
exchange) of any Property or
the propriety or impropriety of the amount for which such Property is sold (or
exchanged), nor shall the Bank be under any duty or obligation to ascertain
whether any property at any time delivered to or held by the Bank may properly
be held by or for the Fund.
(b) Collections. All collections of monies or other property
in respect, or which are to become part, of the Property shall be
at the sole risk of the Fund.
(c) Depositories. In using the facilities of a Depository, the Bank
undertakes to comply with the requirements of Rule 17f- 4(d) insofar as the same
apply to a custodian, and shall be responsible for the prompt and effective
enforcement of its rights against the Depository in respect of the property
including the proper replacement of any certificated security which has been
lost, destroyed, wrongfully taken, mislaid or erroneously delivered while in the
custody of the Depository.
XIV. ADVERTISING
No printed or other matter in any language which mentions the Bank's
name other than in the context of the Bank's rights, powers or duties as the
custodian of the Fund shall be issued by the Fund or on the Fund's behalf unless
the Bank shall first have been given notice thereof.
XV. EFFECTIVE DATE; TERMINATION; SUCCESSOR; DISSOLUTION
(a) Effective date. This Agreement shall become effective as of the
date entered in the final paragraph of this Agreement and shall continue in
effect until terminated in the manner set forth below.
(b) Termination. Either party to this Agreement may terminate this
Agreement, without penalty, upon at least two weeks' prior written notice to the
other. The effective date of such notice shall be specified in such notice,
except that, at the option of the party receiving the notice of termination, the
effective date of termination may be postponed, by notice (given prior to the
effective date specified in the termination notice) to the other party, to a
date not more than sixty days from the date of the notice of termination,
provided that the Fund shall have no right so to postpone the effective date of
termination if the Fund is at the time in default under the provisions of
Section XIV.
(c) Successor custodian. The Bank shall, in the event of such
termination, deliver the Property, or cause it to be delivered, to any new
custodian which may be designated in Instructions received by the Bank.
(d) Successor custodian not available. In the event that no new
custodian can be found by the Fund at the time of termination of this Agreement,
the Fund shall, before authorizing the delivery of the Property to anyone other
than a successor custodian, submit to its shareholders the question of whether
the Fund shall be liquidated or shall function without a custodian. The Bank
shall, pending the finding of such a new custodian, the dissolution of the Fund
or the decision of the Fund's shareholders that the Fund shall function without
a custodian, continue to hold the Property in safekeeping subject to the terms
of this Agreement, but the Bank will not carry out any transaction requiring
Instructions, the Instructions with respect to which are received by the Bank
subsequent to the effective date of the termination of this Agreement, or issue
any advice provided for by Section VII or any statement provided for by Section
X, provided that, upon its receipt of Instructions to do so, the Bank will
deliver the Property to a new custodian (which shall be a person, firm or
corporation having aggregate capital, surplus and undivided profits of at least
$2,000,000 as shown by its last published report, and meeting such other
requirements as may be imposed by applicable law), distribute the Property
(after liquidating any part of the Property which does not consist of cash, if
such Instructions so order) upon dissolution of the Fund or deliver the Property
to any other person if the Fund's shareholders have decided that the Fund shall
function without a custodian. The Bank shall not be liable to the Fund or any
third party on account of any incidents or omissions occurring during such
period of safekeeping except those arising through the Bank's own willful
misconduct or negligence.
(e) Dissolution; no successor custodian. Upon its receipt of
Instructions to do so, the Bank shall distribute the Property (after liquidating
any part of the Property which does not consist of cash, if such Instructions so
order) upon dissolution of the Fund or deliver the Property to any person who is
to take the place of the Fund's custodian if the Fund's shareholders have
decided that the Fund shall function without a custodian, provided, in either
case, that such Instructions shall be accompanied by a certified copy of the
minutes of the meeting of the Fund's shareholders at which the same was
approved.
XVI. NOTICES
All notices and other communications, including Instructions
(collectively referred to as "Notices" in this Section XVI), hereunder shall be
in writing or by tested telegram, cable or Telex. Notices shall be addressed (i)
if to the Bank, at the Bank's address set forth at the head of this Agreement,
marked for the attention of the Custodian Services Department (or its successor,
referred to in Section VII(a)), (ii) if to the Fund, at the address of the Fund
set forth at the head of this Agreement, or (iii) if to either of the foregoing,
at such other address as shall have been notified to the sender of any such
Notice or other communication. If the location of the sender of a Notice and the
address of the addressee thereof are, at the time of sending, more than 100
miles apart, the Notice shall be sent by airmail, in which case it shall be
deemed given three days after it is sent, or by tested telegram, cable or Telex,
in which case it shall be deemed given immediately, and, if the location of the
sender of a Notice and the address of the addressee thereof are, at time of
sending, not more than 100 miles apart, the Notice may be sent by first-class
mail, in which case it shall be deemed given two days after it is sent, or by
messenger, in which case it shall be deemed given on the day it is delivered, or
by tested telegram or Telex, in which case it shall be deemed given immediately,
provided that the Bank shall in no event be liable in respect of any delay in
its actual receipt of any Notice. All postage, cable, telegraph and Telex
charges arising from the Sending of a Notice hereunder shall be paid by the
sender.
XVII. DEPOSITORIES; ASTRA
The Fund authorizes the Bank, for any securities held hereunder, to use
the services of any United States central securities depository permitted to
perform such services for registered investment companies and their custodians
under Rule 17f-4 under the Act ("System"), the use of which is subject to the
terms and conditions of this Section XVII.
The terms of the use of any System under this Agreement shall be
governed by the terms and conditions of Rule 17f-4 under the Investment Company
Act of 1940, to which terms and conditions the parties hereto agree as if set
forth in full in this Agreement. The parties also agree that such terms and
conditions shall supersede any conflicting provisions of this Agreement. Nothing
herein shall be deemed to require that the Custodian ascertain, as
a condition to the use of any System, that any required action has been taken by
the Board of Trustees of the Fund.
If and to the extent that a System permits the withdrawal of a security
from that System in certificate form and the Fund requires a certificate for
making a loan or otherwise, the Bank shall take all necessary and appropriate
action to obtain such certificate upon receipt of an officer's certificate
requesting the same.
The liability of the Bank to the Fund in connection with the use of any
System shall be subject to the provisions of Section XIII of this Agreement.
The Bank agrees that it will effectively enforce such rights as it may
have against any System and will use its best efforts, and will enforce any such
rights as it may have against any System, to require that such System shall take
all appropriate and necessary steps to obtain replacement of any certificated
security in such System which has been lost, apparently destroyed, wrongfully
taken, mislaid or erroneously delivered while in the custody of the System.
The Fund can have dial-up access to its own custodian account in the
Bank's computerized accounting system (the "ASTRA System") in order to: (i)
accept or reject executed securities transactions (other than in foreign
securities) as submitted for confirmation by brokers and dealers through the
Institutional Delivery ("ID") System of Depository Trust Company ("DTC") in
which the Bank is a participant; and (ii) issue instructions for the settlement
of accepted transactions by the Bank (through the ID System of DTC or otherwise)
pursuant to the terms of this Agreement.
1. The Bank will provide such current instructions and password as may
be necessary for the Fund to have dial-up access to its own custody account in
the ASTRA System, which instructions and password, including any changed
instructions or password, will be delivered personally or by certified mail,
return receipt requested, to such officer(s) of the Fund as may, from time to
time, be designated in a written instruction given by the Fund in accordance
with Article V of this Agreement and signed by the Secretary, Assistant
Secretary or Treasurer of the Fund.
2. The Bank will change such instructions or password as
frequently as may reasonably be requested by the Fund for security reasons.
3. The Bank is obligated and authorized to act and rely upon any
instructions received by it through the ASTRA System, as fully as in the case of
instructions given pursuant to Article V of this Agreement, regardless of
whether such instructions have been authorized by the Fund, provided that such
instructions are accompanied by the code password and account identification
information furnished, from time to time, by the Bank to the Fund as hereinabove
provided. Any such instructions received by the Bank through the ASTRA System
will be considered "Instructions" for all purposes under this Agreement,
including without limitation the indemnification provisions of Article XII
hereof.
4. Both the Fund and the Bank will keep for at least five years and
produce on request, in machine readable form, copies of any instructions sent or
received pursuant to the provisions hereof.
XVIII. MISCELLANEOUS
(a) Amendments, etc. This Agreement or any part hereof may be changed
or waived only by an instrument in writing signed by the party against which
enforcement of such change or waiver is sought. The headings in this Agreement
are for convenience of reference only, are not a part of this Agreement and
shall be disregarded in connection with any interpretation of all or any part of
this Agreement.
(b) Entire Agreement. This Agreement embodies the entire agreement and
understanding between the parties hereto, and supersedes all prior agreements
and understandings, relating to the subject matter hereof, provided that the
parties hereto may embody in one or more separate documents their agreement, if
any, with respect to delegated and/or oral Instructions.
(c) Successors and assigns; assignment. All terms of this Agreement
shall be binding upon the respective successors and assigns of the parties
hereto, the Fund's management company (if any) and the Fund's shareholders and
shall inure to the benefit of and be enforceable by the parties hereto and their
respective successors and assigns, provided that this Agreement shall not be
assignable in whole or in part by either party hereto without the written
consent of the other party hereto.
(d) Counterparts. This Agreement may be executed simultaneously in
several counterparts, each of which shall be deemed an original but all of
which, taken together, shall constitute one and the same Agreement.
(e) Disclaimer of Shareholder Liability. The Bank understands that the
obligations of the Fund under this Agreement are not binding upon any trustee or
shareholder of the Fund personally, but bind only the Fund and the Fund's
property. The Bank represents that it has notice of the provisions of the
Declaration of Trust of the Fund disclaiming shareholder liability for acts or
obligations of the Fund.
(f) Governing Law. This Agreement shall be construed and
enforced in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by the hands of their signatories thereunto duly authorized on the ____
day of January, 1996.
CITIBANK, N.A.
/s/ Xxxx Xxxxxxxx
By:___________________________________
Xxxx Xxxxxxxx, Vice President
--------------------------------------
(Name and Title)
XXXXXXXXXXX NEW YORK TAX-EXEMPT FUND
/s/ Xxxxxx X. Xxxxxxx
By:___________________________________
Xxxxxx X. Xxxxxxx, Secretary
(Name and Title)
custody/360
