CUSTODIAN CONTRACT
This Contract is between Warburg, Xxxxxx *[name of Fund], a *[business
trust/corporation] organized and existing under the laws of *[The Commonwealth
of Massachusetts/the State of Maryland], having a Board of *[Trustees/Directors]
(the "Board") and its principal place of business at 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (the "Fund"), and State Street Bank and Trust Company, a
Massachusetts trust company having its principal place of business at 000
Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (the "Custodian"),
WITNESSETH:
WHEREAS, the Fund intends to offer shares in one or more series as
listed on Schedule F hereto (such series, together with all other series
subsequently established by the Fund and made subject to this Contract in
accordance with Article 20 hereof, being herein referred to as the
"Portfolio(s)");
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter contained, the parties hereto do hereby agree as follows:
1. Employment of Custodian and Property to be Held by It
The Fund hereby employs the Custodian as the custodian of the assets of
the Portfolio(s), including securities which the Fund, on behalf of the
applicable Portfolio, desires to be held in places within the United States of
America ("domestic securities") and securities it desires to be held outside the
United States of America ("foreign securities") pursuant to the provisions of
the Fund's *[declaration of trust on file with the Secretary of The Commonwealth
of Massachusetts /Articles of Incorporation], as amended from time to time (the
"Charter"). The Fund, on behalf of the Portfolio(s), agrees to deliver to the
Custodian all securities and cash of such Portfolios generally described in
Schedule F, and all payments of income, payments of principal or capital
distributions received by it with respect to all securities owned by the
Portfolio(s) from time to time, and the cash consideration received by it for
such new or treasury shares of *[capital stock/beneficial interest] ("Shares")
of the Fund representing interests in the Portfolios as may be issued or sold
from time to time. The Custodian shall not be responsible for any property of a
Portfolio held or received by the Fund on behalf of a Portfolio and not
delivered to (i) the Custodian to be held by it, (ii) a sub-custodian located in
the United States and employed pursuant to this Article 1 or (iii) a foreign
sub-custodian or a foreign securities system employed pursuant to Article 3.
Upon receipt of "Proper Instructions" (as such term is defined in
Article 5 of this Contract), the Custodian shall on behalf of the applicable
Portfolio(s) from time to time employ one or more sub-custodians located in the
United States of America, including any state or
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political subdivision thereof and any territory over which its political
sovereignty extends (the "United States" or "U.S."), but only in accordance with
an applicable vote by the Board. The Custodian may also employ as sub-custodians
for the Fund's foreign securities on behalf of the applicable Portfolio(s) the
foreign sub-custodians and foreign securities depositories designated in
Schedule A hereto but only in accordance with the terms hereof and an applicable
vote of the Board on behalf of the applicable Portfolio(s).
2. Duties of the Custodian with Respect to Property of the Fund Held by
the Custodian in the United States
2.1 Holding Securities. The Custodian shall hold and physically segregate
for the account of each Portfolio all non-cash property to be held by
it in the United States including all domestic securities owned by such
Portfolio other than (a) securities which are maintained in a "U.S.
Securities System" (as such term is defined in Section 2.10 of this
Contract) and (b) commercial paper of an issuer for which State Street
Bank and Trust Company acts as issuing and paying agent ("Direct Paper
System") which is deposited and/or maintained in the Custodian's Direct
Paper Book Entry System pursuant to Section 2.11.
2.2 Delivery of Securities. The Custodian shall release and deliver
domestic securities owned by a Portfolio and (i) held by the Custodian,
(ii) held in an account of the Custodian in a U.S. Securities System
(as defined in Section 2.10 hereof) or (iii) held in the Direct Paper
System Account (as defined in Section 2.11 hereof), only upon receipt
of Proper Instructions from the Fund on behalf of the applicable
Portfolio, which may be continuing instructions when deemed appropriate
by the parties, and only in the cases listed below. Any U.S. Securities
System account shall not include any assets of the Custodian other than
assets held as a fiduciary, custodian or otherwise for its customers
("U.S. Securities System Account"). The Custodian's Direct Paper
Book-Entry System account shall not include any assets of the Custodian
other than assets held as a fiduciary, custodian or otherwise for its
customers ("Direct Paper System Account").
1) Upon sale of such securities for the account of the Portfolio
and receipt of full payment therefor;
2) Upon the receipt of payment in connection with any repurchase
agreement related to such securities entered into by the
Portfolio;
3) In the case of a sale effected through a U.S. 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 of the Portfolio; provided
that the Custodian shall have taken reasonable
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steps to ensure timely collection of the payment for, or the
return of, such securities by the depository agent;
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; and
provided further that the Custodian shall have taken
reasonable steps to ensure timely collection of such cash or
other consideration;
6) To the issuer thereof, or its agent, for transfer into the
name of the Portfolio 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 domestic sub-custodian 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 bearing the same
interest rate, maturity date and call provisions, if any;
provided that, in any such case, the new securities are to be
delivered to the Custodian;
7) In the case of delivery of physical certificates or
instruments representing securities, upon the sale of such
securities for the account of the Portfolio, 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 taken reasonable steps
to ensure prompt collection of the payment for, or the return
of, such securities by the broker or its clearing agent, 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;
8) For exchange or conversion pursuant to any plan of merger,
consolidation, recapitalization, reorganization or
readjustment of the securities of the issuer of such
securities, or pursuant to provisions for conversion contained
in such securities, or pursuant to any deposit agreement or
protective plan; provided that, in any such case, the new
securities and/or cash are to be delivered to the Custodian;
9) In the case of warrants, puts, calls, futures contracts,
options, rights or similar securities, the surrender thereof
in the exercise or sale of such warrants, puts, calls, futures
contracts, options, rights or similar securities; provided
that, in any such case, the securities and cash received in
exchange therefor are to be delivered to the Custodian;
10) For delivery in connection with any loans of securities made
by the Portfolio to the borrower thereof in accordance with
the terms of a written securities lending
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agreement to which a Portfolio is a party or is otherwise
approved by the Portfolio, but only against receipt of
adequate collateral as agreed upon from time to time by the
Custodian and the Fund on behalf of the Portfolio, 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 U.S. Securities System Account,
the Custodian will not be held liable or responsible for the
delivery of securities owned by the Portfolio prior to the
receipt of such collateral provided that, if Proper
Instructions require such delivery to be made through a U.S.
Securities System, such delivery is made in accordance with
the requirements of such U.S. Securities System;
11) For delivery as security in connection with any borrowings by
the Fund on behalf of the Portfolio requiring a pledge of
assets by the Fund on behalf of the Portfolio, but only
against receipt of amounts borrowed;
12) For delivery in accordance with the provisions of any
agreement among the Fund on behalf of the Portfolio, 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 Portfolio;
13) For delivery in accordance with the provisions of any
agreement among the Fund on behalf of the Portfolio, 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 of any similar organization or
organizations, regarding account deposits in connection with
transactions by the Portfolio;
14) Upon receipt of instructions from the transfer agent for the
Fund (the "Transfer Agent"), for delivery to such Transfer
Agent or to the holders of shares in connection with
distributions in kind, as may be described from time to time
in the Fund's currently effective prospectus and statement of
additional information related to the Portfolio (the
"Prospectus"), in satisfaction of requests by holders of
Shares for repurchase or redemption;
15) For any other proper corporate purpose, but only upon receipt
of, in addition to Proper Instructions from the Fund on behalf
of the applicable Portfolio, a copy of a resolution of the
Board or of any executive committee thereof signed by an
officer of the Fund and certified by the Fund's Secretary or
Assistant Secretary (a "Certified Resolution") specifying the
securities of the Portfolio to be delivered,
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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; and
16) Upon the termination of this Contract as hereinafter set
forth, in accordance with Article 16 hereof.
2.3 Registration of Securities. Domestic securities held by the Custodian
(other than bearer securities) shall be registered in the name of the
Portfolio or in the name of any nominee of the Fund on behalf of the
Portfolio or of any nominee of the Custodian which nominee shall be
assigned exclusively to the Portfolio, unless the Fund has authorized
in writing the appointment of a nominee to be used in common with other
registered investment companies having the same investment adviser as
the Portfolio, or in the name or nominee name of any agent appointed
pursuant to Section 2.9 or in the name or nominee name of any domestic
sub-custodian appointed pursuant to Article 1. The Portfolios reserve
the right to instruct the Custodian as to the method of registration
and safekeeping of the securities of the Portfolios. All securities
accepted by the Custodian on behalf of the Portfolio under the terms of
this Contract shall be in "street name" or other good delivery form at
the time of delivery on behalf of the Portfolio.
2.4 Bank Accounts. The Custodian shall open and maintain a separate bank
account or accounts in the United States in the name of each Portfolio
of the Fund, subject only to draft or order by the Custodian acting
pursuant to the terms of this Contract, and shall hold in such account
or accounts, subject to the provisions hereof, all cash received by it
from or for the account of the Portfolio, other than cash maintained by
the Portfolio in a bank account established and used in accordance with
Rule 17f-3 under the Investment Company Act of 1940, as amended (the
"1940 Act"). Funds held by the Custodian for a Portfolio 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 (a "Banking
Institution") as it may in its discretion deem necessary or desirable;
provided, however, that every Banking Institution shall be qualified to
act as a custodian under the 1940 Act, and that each such Banking
Institution and the funds to be deposited with each Banking Institution
on behalf of each applicable Portfolio shall be approved by vote of a
majority of the Board. 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 agreement between the Fund on
behalf of each applicable Portfolio and the Custodian, the Custodian
shall, upon the receipt of Proper Instructions from the Fund on behalf
of a Portfolio, make federal funds available to such Portfolio as of
specified times agreed upon from time to time by the Fund and the
Custodian in the amount of checks received in payment for Shares of
such Portfolio which are deposited into the Portfolio's account.
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2.6 Collection of Income. Subject to the provisions of the last sentence of
the first paragraph of this Section 2.6, the Custodian shall collect on
a timely basis all income and other payments with respect to United
States-registered securities held hereunder to which each Portfolio
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 domestic 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
Portfolio's 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. If
payment is not received by the Custodian within a reasonable time after
proper demands have been made, the Custodian shall so notify the Fund
in writing and send copies of all demand letters, any written responses
and memoranda of all oral responses to telephonic demands therefor. If,
however, the Fund directs the Custodian to maintain securities in
"street name", the Custodian shall utilize its best efforts to timely
collect income due the Fund on such securities.
Collection of income due each Portfolio on domestic securities loaned
pursuant to the provisions of Section 2.2(10) shall be the
responsibility of the Fund; the Custodian will have no duty or
responsibility in connection therewith, other than to provide the Fund
with such information or data in its possession as may be necessary to
assist the Fund in arranging for the timely delivery to the Custodian
of the income to which the Portfolio is properly entitled.
2.7 Payment of Fund Monies. Upon receipt of Proper Instructions from the
Fund on behalf of the applicable Portfolio, which may be continuing
instructions when deemed appropriate by the parties, the Custodian
shall pay out monies of a Portfolio 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 Portfolio but only (a) against the delivery of such
securities or evidence of title to such options, futures
contracts or options on 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 1940 Act
to act as a custodian and has been designated by the Custodian
as its agent for this purpose) registered in the name of the
Portfolio 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
U.S. 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 2.11; (d) in the case of
repurchase agreements entered into between the Fund on behalf
of the Portfolio and the Custodian, another bank, or a
broker-dealer which is a member of NASD, (i) against delivery
of the securities
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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 Portfolio of securities owned by the Custodian
along with written evidence of the agreement by the Custodian
to repurchase such securities from the Portfolio or (e) for
transfer to a time deposit account of the Fund 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 Fund
as defined in Article 5;
2) In connection with conversion, exchange or surrender of
securities owned by the Portfolio as set forth in Section
2.2 (4), (5), (8) or (9) hereof;
3) For the redemption or repurchase of Shares issued by the
Portfolio as set forth in Article 4 hereof;
4) For the payment of any expense or liability incurred by the
Portfolio, including but not limited to the following payments
for the account of the Portfolio: interest, taxes, advisory
fees, administration fees, accounting fees, transfer agent
fees, legal fees and operating expenses of the Fund whether or
not such expenses are to be in whole or part capitalized or
treated as deferred expenses;
5) For the payment of any dividends and capital distributions on
Shares of the Portfolio declared pursuant to the governing
documents of the Fund;
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 Proper Instructions from the Fund on behalf of the
Portfolio, a Certified Resolution, 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; and
8) Upon the termination of this Contract as hereinafter set
forth, in accordance with Article 16.
2.8 Liability for Payment in Advance of Receipt of Securities Purchased. In
any and every case where payment for purchase of domestic securities
for the account of a Portfolio is (i) made by the Custodian in advance
of receipt of the securities purchased and (ii) such payment in advance
of receipt is not made with respect to a transaction settling via the
Depository Trust Company, in the absence of Proper Instructions from
the Fund on behalf of such Portfolio to so pay in advance the Custodian
shall be absolutely liable to the Fund for the non-receipt of such
securities purchased except as specifically stated
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otherwise in Sections 2.7(1)(e), 2.7(2) and 2.10(3) of this Contract,
in which case the Custodian will be subject to the standard of care set
forth in Article 13 hereof.
2.9 Appointment of Agents. The Custodian may at any time or times in its
discretion appoint (and may at any time remove) any other bank or trust
company which is itself qualified under the 1940 Act, 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 the appointment of
any agent shall not relieve the Custodian of its responsibilities or
liabilities hereunder.
2.10 Deposit of Securities in U.S. Securities Systems. The Custodian may
deposit and/or maintain domestic securities owned by a Portfolio in a
clearing agency registered with the Securities and Exchange Commission
(the "SEC") under Section 17A of the Exchange Act, 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 or its
successor or successors (each a "U.S. Securities System") in accordance
with applicable Federal Reserve Board and SEC rules and regulations, if
any, and subject to the following provisions:
1) The Custodian may keep eligible domestic securities of the
Portfolio in a U.S. Securities System provided that such
securities are held in a U.S. Securities System Account;
2) The records of the Custodian with respect to securities of the
Portfolio which are maintained in a U.S. Securities System
shall identify by book-entry those securities belonging to the
Portfolio;
3) The Custodian shall pay for domestic securities purchased for
the account of the Portfolio only upon (i) receipt of advice
from the U.S. Securities System that such securities have been
transferred to the U.S. Securities System Account and (ii) the
making of an entry on the records of the Custodian to reflect
such payment and transfer for the account of the Portfolio.
The Custodian shall transfer securities sold for the account
of the Portfolio only upon (x) receipt of advice from the U.S.
Securities System that payment for such securities has been
transferred to the U.S. Securities System Account and (y) the
making of an entry on the records of the Custodian to reflect
such transfer and payment for the account of the Portfolio.
Copies of all advices from the U.S. Securities System of
transfers of securities for the account of the Portfolio shall
identify the Portfolio, be maintained for the Portfolio by the
Custodian and be provided to the Fund at its request. Upon
request, the Custodian shall furnish the Fund on behalf of the
Portfolio confirmation of each transfer to or from the account
of the Portfolio in the form of a written advice or notice and
shall furnish to the Fund on behalf of the Portfolio copies of
daily transaction sheets reflecting each day's transactions in
the U.S. Securities System for the account of the Portfolio;
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4) The Custodian shall provide the Fund on behalf of the
Portfolio(s) with any report obtained by the Custodian on the
U.S. Securities System's accounting system, internal
accounting control and procedures for safeguarding securities
deposited in the U.S. Securities System;
5) The Custodian shall have received from the Fund on behalf of
the Portfolio the initial certificate required by Article 14
hereof; and
6) The Custodian, at the Fund's expense in the absence of
negligence or willful misconduct on the Custodian's part or on
the part of sub-custodians or agents appointed pursuant to
this Contract, shall enforce on behalf of the Fund such rights
as it may have against the U.S. Securities System. Anything to
the contrary in this Contract notwithstanding, the Custodian
shall be liable to the Fund for the benefit of the Portfolio
for any loss or damage to the Portfolio resulting from use of
the U.S. Securities System by reason of any negligence,
misfeasance, bad faith 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 U.S.
Securities System. At the election of the Fund, it shall be
entitled to be subrogated to the rights of the Custodian with
respect to any claim against the U.S. 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
Portfolio has not been made whole for any such loss or damage.
2.11 Fund Assets Held in the Custodian's Direct Paper System. The Custodian
may deposit and/or maintain securities owned by a Portfolio in the
Direct Paper System of the Custodian subject to the following
provisions:
1) No transaction relating to securities in the Direct Paper
System will be effected in the absence of Proper Instructions
from the Fund on behalf of the Portfolio;
2) The Custodian may keep securities of the Portfolio in the
Direct Paper System only if such securities are represented in
the Direct Paper Account;
3) The records of the Custodian with respect to securities of the
Portfolio which are maintained in the Direct Paper System
shall identify by book-entry those securities belonging to the
Portfolio;
4) The Custodian shall pay for securities purchased for the
account of the Portfolio 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 Portfolio. The Custodian
shall transfer securities sold for the account of the
Portfolio upon the making of an
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entry on the records of the Custodian to reflect such
transfer and receipt of payment for the account of the
Portfolio;
5) The Custodian shall furnish the Fund on behalf of the
Portfolio confirmation of each transfer to or from the account
of the Portfolio, 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 Fund on behalf of the
Portfolio copies of daily transaction sheets reflecting each
day's transaction in the Direct Paper System for the account
of the Portfolio; and
6) The Custodian shall provide the Fund with any report on its
accounting system, internal accounting control and procedures
for safeguarding securities deposited in the Direct Paper
System which had been prepared as of the time of such request.
2.12 Segregated Account. The Custodian shall upon receipt of Proper
Instructions from the Fund on behalf of each applicable Portfolio
establish and maintain a segregated account or accounts for and on
behalf of each such Portfolio, into which account or accounts may be
transferred cash and/or securities, including securities maintained in
a U.S. Securities System Account by the Custodian pursuant to Section
2.10 hereof (i) in accordance with the provisions of any agreement
among the Fund on behalf of the Portfolio, 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 or of any registered national securities exchange
(or the Commodity Futures Trading Commission and/or any contract
market), or of any similar organization or organizations, regarding
escrow or other arrangements in connection with transactions by the
Portfolio, (ii) for purposes of segregating cash and/or securities in
connection with (a) options purchased, sold or written by the
Portfolio, (b) commodity futures contracts or options thereon
purchased, sold or written by the Portfolio or (c) other transactions
requiring segregation as described in the Fund's registration statement
as in effect from time to time, (iii) for the purposes of compliance by
the Portfolio with the procedures required by Investment Company Act
Release No. 10666, or any subsequent release or releases of the SEC
relating to the maintenance of segregated accounts by registered
investment companies and (iv) for other proper corporate purposes, but
only, in the case of this clause (iv), upon receipt of, in addition to
Proper Instructions from the Fund on behalf of the applicable
Portfolio, a Certified Resolution setting forth the purpose or purposes
of such segregated account and declaring such purposes to be proper
corporate purposes.
2.13 Proxies. The Custodian or its sub-custodian shall, with respect to the
domestic securities held hereunder, cause to be promptly executed by
the registered holder of such securities, if the securities are
registered otherwise than in the name of the Portfolio or a nominee of
the Portfolio, all proxies, without indication of the manner in which
such proxies are to be
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voted, and shall promptly deliver to the Fund on behalf of the
Portfolio all proxies, including those for bearer securities, all proxy
soliciting materials and all notices relating to such securities.
2.14 Communications Relating to Portfolio Securities. The Custodian shall
transmit promptly to the Fund for each Portfolio all written notices,
announcements or information (including, without limitation, pendency
of calls and maturities of domestic securities and expirations of
rights in connection therewith, notices of exercise of call and put
options written by the Fund on behalf of the Portfolio and the maturity
of futures contracts and options thereon purchased or sold by the
Portfolio) received by the Custodian from issuers of the securities
being held for the Portfolio. With respect to tender or exchange offers
or other similar transactions, the Custodian shall transmit promptly to
the Portfolio all written notices, announcements or information
received by the Custodian from issuers of the securities whose tender
or exchange is sought and from the party (or its agents) making the
tender or exchange offer. If the Fund directs the Custodian to maintain
securities in "street name", the Custodian shall utilize its best
efforts to notify the Fund of relevant corporate actions including,
without limitation, pendency of calls, maturities, tender or exchange
offers. If the Portfolio desires to take action with respect to any
tender offer, exchange offer or any other similar transaction, the
Portfolio shall notify the Custodian at least two (2) business days
prior to the date on which the Custodian is to take such action; with
respect to notice given by the Portfolio to the Custodian subsequent
thereto, the Custodian shall use its best efforts under the
circumstances to take the requested action.
2.15 Reports to Fund by Independent Public Accountant. The Custodian shall
provide the Fund with reports by independent public accountants on
accounting system, internal accounting control and procedures for
safeguarding cash, securities, futures contracts and options on futures
contracts and other assets, including cash, securities and other assets
deposited and/or maintained in a U.S. Securities System (as defined in
Section 2.10) or with a sub-custodian, 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 Fund to provide reasonable assurance that any material
inadequacies would be disclosed by such examination, and, if there are
no such inadequacies, the reports shall so state.
3. Duties of the Custodian with Respect to Property of the Fund Held
Outside the United States
3.1 Appointment of Foreign Sub-Custodians. The Fund hereby authorizes and
instructs the Custodian to employ as sub-custodians for the Portfolio's
securities and other assets maintained outside the United States
eligible foreign custodians as defined in Rule 17f-5 under the 1940 Act
("Rule 17f-5") designated on Schedule A hereto (the "foreign
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sub-custodians"). Upon receipt of Proper Instructions, together with a
Certified Resolution, the Custodian and the Fund on behalf of the
Portfolio(s) may agree to amend Schedule A hereto from time to time to
designate additional or different foreign sub-custodians. Upon receipt
of Proper Instructions, the Fund may instruct the Custodian to cease
the employment of any one or more such foreign sub-custodians for
maintaining custody of the Portfolio's assets.
3.2 Assets to be Held. The Custodian shall limit the securities and other
assets maintained in the custody of the foreign sub-custodians to: (a)
"foreign securities", as defined in paragraph (c)(1) of Rule 17f-5, (b)
cash and cash equivalents in such amounts as the Custodian may
determine to be reasonably necessary to effect the Portfolio's foreign
securities transactions and (c) such cash and securities as the Fund
shall give Proper Instructions to be held in segregated accounts
pursuant to Section 3.21 hereof. The Custodian shall identify on its
books as belonging to the Fund the foreign securities of the Fund held
by each foreign sub-custodian.
3.3 Foreign Securities Systems. Except as may otherwise be agreed upon in
writing by the Custodian and the Fund, assets of the Portfolio(s) shall
be maintained in a clearing agency or a securities depository within
the meaning of Rule 17f-5(c)(2)(iii) and (iv) listed on Schedule A
(each a "foreign securities system") only through arrangements
implemented by the foreign banking institutions (as defined in Section
3.5 below) serving as sub-custodians pursuant to the terms hereof
(foreign securities systems and U.S. Securities Systems are referred to
herein collectively as the "Securities Systems"). Where possible after
reasonable efforts, such arrangements shall include entry into
agreements containing the provisions set forth in Section 3.5 hereof.
3.4 Holding Securities. The Custodian may hold securities and other
non-cash property for all of its customers, including the Fund, with a
foreign sub-custodian in a single account that is identified as
belonging to the Custodian for the benefit of its customers; provided,
however, that (i) the records of the Custodian with respect to
securities and other non-cash property of the Fund which are maintained
in such account shall identify by book-entry those securities and other
non-cash property belonging to the Fund, (ii) the Custodian shall
require that the securities and other non-cash property so held by the
foreign sub-custodian be held separately from the assets of the foreign
sub-custodian or of others, (iii) the Custodian shall reconcile the
holdings of each customer in the single account daily, and (iv) such
holding shall be consistent with the terms of the SEC staff no-action
letter to the Custodian (NO. 95-35-CC) or subsequent SEC position or
Rule.
3.5 Agreements with Foreign Banking Institutions. Each agreement with a
foreign sub-custodian as defined in Rule 17f-5(c)(2)(i) or (ii) (each a
"foreign banking institution") shall provide that (a) the Fund's assets
will be indemnified or its assets insured in the event of loss; (b) the
assets of each Portfolio 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
12
creditors or agent, except a claim of payment for their safe custody or
administration; (c) beneficial ownership of the assets of each
Portfolio will be freely transferable without the payment of money or
value other than for custody or administration; (d) adequate records
will be maintained identifying the assets as held by the Custodian on
behalf of its customers; (e) 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 Fund, will be given access to the books and records of the foreign
banking institution relating to its actions under its agreement with
the Custodian; (f) assets of the Portfolios held by the foreign
sub-custodian will be subject only to the instructions of the Custodian
or its agents; and (g) such foreign banking institution shall notify
the Custodian in the event that it ceases to qualify as either a branch
of a "qualified U.S. bank" or an "eligible foreign custodian", as such
terms are defined in Rule 17f-5(c), as amended.
3.6 Access of Independent Accountants of the Fund. Upon request of the
Fund, the Custodian will use reasonable efforts to arrange for the
independent accountants of the Fund to be afforded access to the books
and records of the foreign banking institution employed as a foreign
sub-custodian insofar as such books and records relate to the
performance of such foreign banking institution under its agreement
with the Custodian.
3.7 Delivery of Securities. The Custodian (or its foreign sub-custodian)
shall release and deliver foreign securities of a Portfolio held by the
foreign sub-custodian, or in a foreign securities system account of the
Custodian (or its foreign sub-custodian), only upon receipt of Proper
Instructions from the Fund on behalf of the applicable Portfolio, which
may be continuing instructions when deemed appropriate by the parties,
and only in the following cases:
(a) Upon sale of such securities for the Portfolio in accordance
with reasonable market practice in the jurisdiction where such
securities are held or traded, including, without limitation:
(i) delivery against expectation of receiving later payment
where such delivery is the customarily established securities
trading practice generally accepted by Institutional Clients
(as hereinafter defined) in the jurisdiction or market where
the transaction occurs; or (ii) in the case of a sale effected
through a foreign securities system, in accordance with the
rules governing the operation of the foreign securities
system;
(b) In connection with any repurchase agreement related to such
securities;
(c) To the depository agent in connection with tender or other
similar offers for securities of the Portfolio; provided that
the Custodian (or its foreign sub-custodian) shall have taken
reasonable steps in accordance with procedures generally
accepted by Institutional Clients in the particular market to
ensure
13
timely collection of the payment for, or the return of, such
securities by the depository agent;
(d) 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 (or its
foreign sub-custodian); and provided further that the
Custodian (or its foreign sub-custodian) shall have taken
reasonable steps in accordance with procedures generally
accepted by Institutional Clients in the particular market to
ensure timely collection of such cash or other consideration;
(e) To the issuer thereof, or its agent, for transfer into the
name of the Custodian (or its foreign sub-custodian) or of any
nominee of the Custodian (or its foreign sub-custodian) or for
exchange for a different number of bonds, certificates or
other evidence representing the same aggregate face amount or
number of units; provided that, in any such case, the new
securities are to be delivered to the Custodian (or its
foreign sub-custodian);
(f) To brokers, clearing banks or other clearing agents for
examination or trade execution in accordance with market
custom; provided that, in any such case, the Custodian (or its
foreign sub-custodian) shall have taken reasonable steps in
accordance with procedures generally accepted by Institutional
Clients in the particular market to ensure prompt collection
of the payment for, or the return of, such securities by the
broker, clearing bank or clearing agent, the Custodian (or its
foreign sub-custodian) shall have no responsibility or
liability for any loss arising from the delivery of such
securities prior to receiving payment for such securities
except as may arise from the negligence or willful misconduct
of the Custodian (or of its foreign sub-custodian);
(g) For exchange or conversion pursuant to any plan of merger,
consolidation, recapitalization, reorganization or
readjustment of the securities of the issuer of such
securities, or pursuant to provisions for conversion contained
in such securities, or pursuant to any deposit agreement;
provided that, in any such case, the new securities and/or
cash are to be delivered to the Custodian (or its foreign
sub-custodian) in accordance with procedures generally
accepted by Institutional Clients in the particular market;
(h) In the case of warrants, puts, calls, futures contracts,
options, rights or similar securities, the surrender thereof
in the exercise or sale of such warrants, puts, calls, futures
contracts, options, rights or similar securities; provided
that, in any such case, the securities and cash received in
exchange therefor are to be delivered to the Custodian (or its
foreign sub-custodian) in accordance with procedures generally
accepted by Institutional Clients in the particular market;
14
(i) For delivery as security in connection with any borrowings by
the Fund requiring a pledge of assets of the Portfolio by the
Fund, but only against receipt of amounts borrowed;
(j) In connection with trading in options and futures contracts,
including delivery as original margin and variation margin;
(k) In connection with the loan of securities made by the
Portfolio to the borrower thereof in accordance with (i) the
terms of a written securities lending agreement to which a
Portfolio and State Street Bank and Trust Company, as lending
agent, are parties or (ii) in accordance with the terms of
Proper Instructions;
(l) For any other purpose, but only upon receipt of a Certified
Resolution and Proper Instructions specifying the securities
to be delivered, setting forth the purpose for which 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; and
(m) Upon termination of this Contract as hereinafter set forth, in
accordance with Article 16 hereof.
3.8 Payment of Fund Monies. Upon receipt of Proper Instructions from the
Fund on behalf of the applicable Portfolio, which may be continuing
instructions when deemed appropriate by the parties, the Custodian
shall pay out, or direct its foreign sub-custodians to pay out, monies
of a Portfolio in the following cases only:
(a) Upon the purchase of foreign securities, options, futures or
options on futures contracts for the Portfolio, unless
otherwise directed by Proper Instructions, by (i) delivering
money to the seller thereof or to a dealer therefor (or an
agent for such seller or dealer), against delivery of such
securities to the foreign sub-custodian; or (ii) in accordance
with the customarily established securities trading practices
generally accepted by Institutional Clients in the
jurisdiction or market in which the transaction occurs,
against expectation of receiving later delivery of such
securities; or (iii) in the case of a purchase effected
through a foreign securities system, in accordance with the
rules governing the operation of such foreign securities
system;
(b) In connection with the conversion, exchange or surrender of
securities of the Portfolio as set forth in Section 3.7
hereof;
15
(c) For the payment of any expense or liability including but not
limited to the following payments for the account of the
Portfolio: interest, taxes, advisory, administration,
accounting, transfer agent and legal fees, and operating
expenses;
(d) For the purchase or sale of foreign exchange or foreign
exchange contracts for the Portfolio, including transactions
executed with or through the Custodian or its foreign
sub-custodians;
(e) In connection with trading in options and futures contracts,
including delivery as original margin and variation margin;
(f) In connection with the borrowing of securities;
(g) For any purpose, but only upon receipt of a Certified
Resolution and Proper Instructions specifying the amount of
such payment and naming the person or persons to whom such
payment is to be made; and
(h) Upon termination of this Contract as hereinafter set forth, in
accordance with Article 16 hereof.
3.9 Market Conditions. Notwithstanding any provision of this Contract to
the contrary, settlement and payment for securities received for the
account of each applicable Portfolio and delivery of securities
maintained for the account of each applicable Portfolio may be effected
in accordance with the customary securities trading or securities
processing practices and procedures generally accepted by Institutional
Clients 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. For purposes
of this Contract, "Institutional Clients" means U.S. registered
investment companies, or major, U.S.-based commercial banks, insurance
companies, pension funds or substantially similar financial
institutions which as a part of their ordinary business operations,
purchase or sell securities and make use of non-U.S. custodial
services. For the purposes of this section, the "DVP/RVP Model" is a
settlement system which offers a simultaneous and irrevocable exchange
of securities (on the delivery side) and cash value (on the payment
side) to settle a transaction. The Custodian will provide the Fund (i)
with a copy of The Guide to Custody in World Markets, which at the time
of its printing shall contain the Custodian's best information with
respect to customary securities trading or securities processing
practices and procedures generally accepted by Institutional Clients in
the jurisdictions and markets set forth therein, (ii) a summary
extracted therefrom and dated the date hereof which shall set forth the
Custodian's best information with respect to the markets in which some
or all securities transactions do not settle in accordance with the
16
DVP/RVP Model, and (iii) updates to The Guide to Custody in World
Markets as published and to the aforementioned summary as appropriate.
3.10 Registration of Securities. Securities maintained in the custody of a
foreign banking institution (other than bearer securities) shall be
registered in the name of the Portfolio or in the name of any nominee
of the Fund on behalf of the Portfolio or in the name of any nominee of
the Custodian or of such foreign banking institution, and the Fund
agrees to hold any such nominee harmless from any liability arising
solely as a result of its status as a holder of record of such
securities unless liability results from the negligence, bad faith or
willful misconduct on the part of such nominee, the Custodian or such
foreign banking institution. The Custodian and its foreign
sub-custodian shall not be obligated to accept securities on behalf of
a Portfolio under the terms of this Contract unless the form of such
securities and the manner in which they are delivered are in accordance
with reasonable market practice in the particular jurisdiction and
generally accepted by Institutional Clients.
3.11 Bank Accounts. The Custodian (or its foreign sub-custodian) may open
and maintain outside the United States a bank account or bank accounts
on behalf of the Fund or its applicable Portfolios in foreign banking
institutions designated on Schedule A, subject only to draft or order
by the Custodian or its foreign sub-custodian, acting pursuant to the
terms of this Contract to hold cash received by or from or for the
account of the Fund on behalf of its applicable Portfolios.
3.12 Collection of Income. The Custodian (or its foreign sub-custodian)
shall use reasonable efforts in accordance with market practice
generally accepted by Institutional Clients to collect all income and
other payments in due course with respect to the securities held
hereunder to which the applicable Portfolio shall be entitled and shall
credit such income, as collected, to the applicable Portfolio. With
respect to Portfolio securities held in an account with a foreign
banking institution as described in Section 3.4 hereof, income
collected with respect to such securities will be allocated to the
Portfolio pro-rata based on the Portfolio's settled and registered
position in such securities. In the event that extraordinary measures
are required to collect such income, the Fund and the Custodian shall
consult as to such measures and as to the compensation and expenses of
the Custodian attendant thereto.
Collection of income due each Portfolio on securities loaned shall be
the responsibility of the Fund; the Custodian will have no duty or
responsibility in connection therewith, other than to provide the Fund
with such information or data in its possession as may be necessary to
assist the Fund in arranging for the timely delivery to the Custodian
or its foreign sub-custodians of the income to which the Portfolio is
properly entitled.
3.13 Appointment of Agents. The Custodian (or its foreign sub-custodian) may
at any time or times in its discretion appoint (and may at any time
remove) agents to carry out such of
17
the provisions of this Article 3 as the Custodian (or its foreign
sub-custodian) may from time to time direct; provided, however, that
any such agent shall be an "eligible foreign custodian" within the
meaning of Rule 17f-5 under the 1940 Act and that the appointment of
any agent shall not relieve the Custodian (or such foreign
sub-custodian) of its responsibilities or liabilities hereunder.
3.14 Proxies. The Custodian will generally, with respect to the foreign
securities held under this Article 3, use best efforts accepted by
Institutional Clients to facilitate the exercise of voting and other
shareholder proxy rights, subject always to the laws, regulations and
practical constraints that may obtain in the jurisdiction where such
securities are issued. The Fund acknowledges that local conditions may
have the effect of severely limiting the ability of the Fund to
exercise shareholder rights.
3.15 Communications Relating to Portfolio Securities. The Custodian shall
transmit promptly to the Fund written information (including, without
limitation, pendency of calls and maturities of securities and
expirations of rights in connection therewith) received by the
Custodian via its sub-custodians from issuers of the securities being
held for the account of the applicable Portfolio. With respect to
tender or exchange offers, the Custodian shall transmit promptly to the
Fund written information so received by the Custodian from issuers of
the securities whose tender or exchange is sought or from the party (or
his or its agents) making the tender or exchange offer. Provided the
Custodian has complied with the requirements in the previous sentence,
the Custodian shall not be liable for any untimely exercise of any
tender, exchange or other right or power in connection with securities
or other property of a Portfolio at any time held by it or its foreign
subcustodians unless (i) it or its foreign subcustodians are in actual
possession of such securities or property and (ii) it receives Proper
Instructions with regard to the exercise of any such right or power,
and both (i) and (ii) occur at least three business days prior to the
date on which such right or power is to be exercised. With respect to
Proper Instructions received by the Custodian thereafter, the Custodian
shall use its best efforts in the light of local conditions to take the
requested action.
3.16 Liability of Foreign Sub-Custodians. Each agreement pursuant to which
the Custodian employs a foreign banking institution as a foreign
sub-custodian shall require the institution (i) to exercise reasonable
care in the performance of its duties and (ii) to indemnify, and hold
harmless, the Custodian and the 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. The Custodian shall
take reasonable steps, which, in the absence of negligence or willful
misconduct on the Custodian's part or on the part of the relevant
foreign banking institution, shall be at the relevant Portfolio's
expense, to enforce effectively (i) the rights of the Custodian and the
Fund under such agreements and (ii), in the event of any loss, damage,
cost, expense, liability or claim arising out of or in connection with
the performance of a foreign securities system, the
18
rights of the Custodian, the applicable foreign banking institution or
the Fund against such system.
3.17 Subrogation. If the Custodian shall be unsuccessful in enforcing its
and the Fund's rights as set forth in Section 3.16 hereof, it shall so
inform the Fund, noting the steps it has taken. Thereafter, at the
election of the Fund on behalf of the Portfolio, (a) the Fund 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 Portfolio has not been made whole for any such loss,
damage, cost, expense, liability or claim, (b) the Fund shall be
entitled to be subrogated to the rights of the Custodian with respect
to any claims against a foreign securities system which the Custodian
may have as a consequence of any loss, damage, cost, expense, liability
or claim arising out of or in connection with the performance by a
foreign securities system if and to the extent that the relevant
Portfolio(s) has not been made whole for any such loss, damage, cost,
expense, liability or claim, and (c) the Custodian shall to the extent
allowable under applicable law, take commercially reasonable steps to
procure the subrogation to the Fund of the foreign banking
institution's rights against the foreign securities system as a
consequence of any loss, damage, cost, expense, liability or claim
arising out of or in connection with the performance by a foreign
securities system if and to the extent that the relevant Portfolio(s)
has not been made whole for any such loss, damage, cost, expense,
liability or claim.
3.18 Monitoring Responsibilities. The Custodian shall furnish annually to
the Fund, during the month of June, information concerning each foreign
sub-custodian listed from time to time on Schedule A. Such information
shall be similar in kind and scope to that furnished to the Fund in
connection with the initial approval of this Contract, but shall also
include a report concerning any recommendations to consider change of a
foreign subcustodian (including the reason for said change). In
addition, the Custodian will provide the Portfolios with such
information as a Portfolio shall reasonably request in order to enable
the Fund to comply with Rule 17f-5. In addition, the Custodian will
promptly inform the Fund in writing in accordance with Article 17 in
the event that the Custodian learns of (i) a material adverse change in
the condition, financial or otherwise, of a foreign sub-custodian, (ii)
any loss of the assets of the Fund or (iii), in the case of any foreign
sub-custodian not the subject of an exemptive order from the SEC
modifying the shareholder equity requirement under Rule 17f-5, is
notified by such foreign sub-custodian that there appears to be a
substantial likelihood that its shareholders' equity will decline below
$200 million or that its shareholders' equity has declined below $200
million (in each case in terms of U.S. dollars or the local currency
equivalent thereof and computed in accordance with generally accepted
U.S. accounting principles).
3.19 State Street London. Cash held for each Portfolio of the Fund in the
United Kingdom shall be maintained in an interest bearing account
established for the Fund with the
19
Custodian's London branch, which account shall be subject to the
direction of the Custodian, State Street London Ltd. or both.
3.20 Tax Law. It shall be the responsibility of the Custodian and the
foreign banking institutions to use reasonable efforts and due care to
perform such steps typical for persons acting as global custodian for
Institutional Clients as are required to collect any tax refund, to
ascertain the appropriate rate of tax withholding and to provide such
documents as may be required to enable the Fund to receive appropriate
tax treatment under applicable tax laws and any applicable treaty
provisions. Except to the extent that imposition of such item arises
from the Custodian's or the foreign banking institutions' failure to
perform in accordance with the terms of this Section, the Custodian
shall have no responsibility or liability for any obligations now or
hereafter imposed on the Fund, the Fund's custody account in the
relevant jurisdiction or the Custodian as custodian of the Fund by the
tax law of the domicile of the Fund's custody account in the
jurisdiction or of any jurisdiction in which the Fund is invested or
any political subdivision thereof. Unless otherwise informed by the
Fund in writing, the Custodian, in performance of its duties under this
Section, shall be entitled to apply treatment of the Fund according to
the nationality of the Fund, the particulars of its organization and
other relevant details that shall be supplied by the Fund. The
Custodian shall be entitled to rely on any information supplied in
writing by an authorized representative of the Fund. The Custodian may
engage reasonable professional advisors knowledgeable about the subject
matter, which may include attorneys, accountants or financial
institutions in the regular business of investment administration, and
may rely upon advice received therefrom. It shall be the duty of the
Fund to inform the Custodian of any change in the organization,
domicile or other relevant fact concerning tax treatment of the Fund,
and further to inform the Custodian if the Fund is or becomes the
beneficiary of any special ruling or treatment not applicable to the
general nationality and category of entity of which the Fund is a part
under general laws and treaty provisions.
3.21 Segregated Account. The Custodian shall upon receipt of Proper
Instructions from the Fund on behalf of each applicable Portfolio
establish and maintain, or cause the applicable foreign banking
institution to establish and maintain, a segregated account or accounts
for and on behalf of each such Portfolio, into which account or
accounts may be transferred cash and/or securities (i) in accordance
with the provisions of any agreement among the Fund on behalf of the
Portfolio, the Custodian (or such foreign banking institution) 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 or of any registered national securities exchange
(or the Commodity Futures Trading Commission and/or any contract
market), or of any similar organization or organizations, regarding
escrow or other arrangements in connection with transactions by the
Portfolio, (ii) for purposes of segregating cash and/or securities in
connection with (a) options purchased, sold or written by the
Portfolio, (b) commodity futures contracts or options thereon
20
purchased, sold or written by the Portfolio or (c) other transactions
requiring segregation as described in the Fund's registration statement
as in effect from time to time, (iii) for the purposes of compliance by
the Portfolio with the procedures required by Investment Company Act
Release No. 10666, or any subsequent release or releases of the SEC
relating to the maintenance of segregated accounts by registered
investment companies and (iv) for other proper corporate purposes, but
only, in the case of this clause (iv), upon receipt of, in addition to
Proper Instructions from the Fund on behalf of the applicable
Portfolio, a Certified Resolution , setting forth the purpose or
purposes of such segregated account and declaring such purposes to be
proper corporate purposes.
4. Payments for Sales or Repurchases or Redemptions of Shares
The Custodian shall receive from the distributor for the Shares or from
the Transfer Agent and deposit into the account of the appropriate Portfolio
such payments as are received for Shares of that Portfolio issued or sold from
time to time by the Fund. The Custodian will provide timely notification to the
Fund on behalf of each Portfolio and the Transfer Agent of any receipt by it of
payments for Shares of such Portfolio.
From such funds as may be available for the purpose but subject to the
limitations of the Charter and any applicable votes of the Board pursuant
thereto, the Custodian shall, upon receipt of instructions from the Transfer
Agent, make funds available for payment to holders of Shares who have delivered
to the Transfer Agent a request for redemption or repurchase of their Shares.
5. Proper Instruction
Proper Instructions as used throughout this Contract means a writing
signed or initialed by two persons as the Board 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 Fund shall cause all oral instructions to be confirmed in writing,
provided that the fact that such confirming written instructions are not
received by the Custodian shall in no way invalidate the enforceability of
transactions authorized by oral instructions. 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 Sections 2.12, 3.7(j), 3.8(e) and 3.20.
21
5A. Contractual Settlement
The Custodian shall credit or debit the appropriate cash account of the
applicable Portfolio in connection with the purchase, sale, maturity, redemption
or other disposition of securities and other assets held for the time being in
the Portfolio on an actual settlement basis. Notwithstanding the foregoing, with
respect to the markets set forth on Schedule E hereto the Custodian may, in its
sole discretion, from time to time agree to provide a Portfolio with an
arrangement whereby the Portfolio will be given the opportunity of settling the
purchase, sale, maturity, redemption or other disposition of securities to be
held in the Portfolio in the manner and subject to the terms and limitations
described in this Article 5A. A transaction to which these contractual
settlement provisions applies shall be called a "Covered Transaction."
(a) With respect to a Covered Transaction that represents a
purchase of securities, the Custodian shall debit the
applicable Portfolio's cash account in accordance with Proper
Instructions as of the time and date that monies would
ordinarily be required to settle such a transaction in the
applicable markets as set forth on Schedule E hereto. Such
amounts shall be re-credited to the appropriate cash account
on settlement date upon Proper Instructions to the Custodian
that the Portfolio has canceled the Covered Transaction.
(b) With respect to the settlement of a Covered Transaction which
is a sale, maturity, redemption or other disposition,
provisional credit of an amount equal to the net sale,
maturity, redemption or other disposition proceeds of the
transaction (the "Settlement Amount") shall be made to the
account of the applicable Portfolio as if the Settlement
Amount had been received as of the close of business on the
date that monies would ordinarily be required to settle such
transaction in the applicable markets as set forth on Schedule
E. Such provisional credit will be made if the Custodian has
received Proper Instructions with respect to, or reasonable
notice of, the Covered Transaction, as applicable, and if the
Custodian or its agents are in possession of the asset(s)
associated with the Covered Transaction in good deliverable
form and are not aware of any facts which would lead them to
reasonably believe that the Covered Transaction will not
settle in the time period ordinarily applicable to
transactions in the applicable market. In the event that the
Custodian determines not to provide a provisional credit with
respect to a particular transaction, the Custodian will
promptly notify the Fund of this determination.
(c) For each Covered Transaction with respect to which the
Custodian shall provide provisional credit in an amount up to
the Settlement Amount (the "Credited Amount"), simultaneously
with the making of such provisional credit, the Fund agrees
that the Custodian shall have, and hereby grants to the
Custodian, a firstpriority security interest in any property
at any time held for the account of the applicable Portfolio
to the full extent of the Credited Amount.
22
(d) The Custodian shall have the right, upon sending notice to the
Fund, to reverse any provisional credit given in accordance
with subsection (b) hereof in the event that the actual
proceeds of the subject Covered Transaction have not been
received by the Custodian, its agents or its sub-custodians
within thirty (30) days of having made such provisional credit
or at any time when the Custodian believes for reasonable
cause that such Covered Transaction will not settle in
accordance with its terms or amounts due pursuant thereto will
not be collectable, as applicable (in which case the notice
required herein will contain a description of such cause),
whereupon (i) the Custodian shall promptly notify the Fund
with respect thereto and (ii) a sum equal to the Credited
Amount shall become immediately payable by the Fund to the
Custodian and may be debited from any cash account held for
benefit of the applicable Portfolio in accordance with the
terms of any notice given hereunder; the Custodian's right to
debit the account as set forth above shall not be contingent
on the giving of notice to the Fund. The amount of any accrued
dividends, interest and other distributions with respect to
assets associated with such Covered Transaction may be set off
against the Credited Amount.
(e) In the event that the Custodian is unable to debit an account
of the Fund, with respect to the applicable Portfolio, and the
Portfolio fails to pay any sums due to the Custodian at the
time the same becomes payable in accordance with subsection
(d), and such failure is not cured within one (1) business day
after notice of such failure to the Fund, or if any of the
following conditions occurs, the Custodian may charge the Fund
for reasonable costs and expenses associated with the
provisional credit, including without limitation the cost of
funds associated therewith at the then-prevailing Federal
Funds rate (or local market equivalent thereof where the
Credited Amount was advanced), and the provisions of
subsection (f) will apply:
(1) If a final judgment for the payment of money shall be
rendered against a Portfolio and such judgment shall
not have been discharged or its execution stayed
pending appeal within sixty (60) days of entry or
such judgment shall not have been discharged within
sixty (60) days of expiration of any such stay;
(2) the Fund passing a resolution for its voluntary
winding-up (otherwise than for the purpose of
corporate reconstruction or amalgamation);
(3) the presentation of a petition for the winding-up
of or the making of an administration order in
relation to the Fund;
23
(4) the appointment of a receiver or administrator over
any of the assets of the Fund; or
(5) the Fund ceasing or threatening to cease to carry
on its business.
(f) If an event outlined in subsection (e) occurs, including to
the extent permitted by applicable law the events described in
(1) through (5) thereof, the Custodian shall have the right to
immediately execute and foreclose upon its security interest
in any of the assets of the applicable Portfolio.
(g) The Custodian shall not be obliged to transfer any sums
credited to a Portfolio in accordance with subsection (b) to
or to the order or benefit of the Portfolio while any amount
which is payable to the Custodian under this Article 5A
remains unpaid.
(h) The operation of the provisions of this Article 5A shall be
without prejudice to any other remedies provided the Custodian
in this Contract, including without limitation the remedies
set forth in Article 13 hereof, or under any applicable law.
The Fund agrees that the Custodian shall have a right of
set-off against cash held for the applicable Portfolio in any
currency for any amount provided to such Portfolio by the
Custodian hereunder or from time to time arising out of or in
connection with this Contract, as amended, and/or the
operation of any account hereunder and the Custodian shall
have the right to debit such Portfolio with all or part of
such sums and apply or appropriate the cash in or towards the
discharge of such amounts in such manner and order as is
commercially reasonable under the circumstances. For the
purposes of this right of set-off, the Custodian may make such
currency conversions or effect any transactions in such
currencies at the Custodian's then-prevailing rates at such
times as are commercially reasonable under the circumstances
and may effect any transfers between, or entries on, any
account of the applicable Portfolio as is commercially
reasonable under the circumstances.
6. Actions Permitted without Express Authority
The Custodian may in its discretion, without express authority from the
Fund on behalf of each applicable Portfolio:
1) make payments to itself or others for minor expenses of
handling securities or other similar items relating to the
Custodian's duties under this Contract as set forth in
Schedule B, provided that all such payments shall be accounted
for to the Fund on behalf of the Portfolio;
24
2) surrender securities to the issuer or its agent in temporary
form for securities in definitive form;
3) endorse for collection, in the name of the Portfolio, checks,
drafts and other negotiable instruments; and
4) in general, attend to all non-discretionary details in
connection with the sale, exchange, substitution, purchase,
transfer and other dealings with the securities and property
of the Portfolio except as otherwise directed by the Board.
7. Evidence of Authority
The Custodian shall be protected in acting upon any instructions,
notice, request, consent, certificate or other instrument or paper reasonably
believed by it to be genuine and to have been properly executed by or on behalf
of the Fund. The Custodian may receive and accept a certified copy of a vote of
the Board as conclusive evidence (a) of the authority of any person to act in
accordance with such resolution or (b) of any determination or of any action by
the Board pursuant to the Charter as described in such resolution, and such
resolution 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 to keep the books of account of
each Portfolio and/or compute the net asset value per share of the outstanding
Shares of each Portfolio or, if directed in writing to do so by the Fund on
behalf of the Portfolio(s), shall itself keep such books of account and/or
compute such net asset value per share for a fee to be agreed to by the
Custodian and the Fund. If so directed, for a fee to be agreed upon by the
parties at the time of such direction, the Custodian shall also calculate daily
the net income of the Portfolio as described in the Prospectus and shall advise
the Fund and the Transfer Agent daily of the total amount of such net income
and, if instructed in writing by an officer of the Fund 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 Portfolio shall be made at the time or times described from
time to time in the Prospectus.
9. Records and Reports
The Custodian shall with respect to each Portfolio create and maintain
all records relating to its activities and obligations under this Contract in
such manner as will meet the obligations of
25
the Fund under the 1940 Act, with particular attention to Section 31 thereof and
Rules 31a-1 and 31a-2 thereunder. All such records shall be the property of the
Fund and, together with any insurance policies and fidelity or similar bonds
maintained by the Custodian, shall at all times during the regular business
hours of the Custodian be open for inspection by duly authorized officers,
employees or agents of the Fund (including counsel and independent accountants)
and employees and agents of the SEC and other governmental regulatory
authorities having jurisdiction. The Custodian shall, at the Fund's request,
supply the Fund with a tabulation of securities owned by each Portfolio and held
by the Custodian. When requested to do so by the Fund and for such compensation
as shall be agreed upon between the Fund and the Custodian, the Custodian shall
include certificate numbers in such tabulations.
None of the parties hereto shall, unless compelled to do so by any
court or entity of competent jurisdiction either before or after the termination
of this Contract, disclose to any person not authorized by the relevant party to
receive the same any confidential information relating to such party and to the
affairs of such party of which the party disclosing the same shall have become
possessed during the period of this Contract and each party shall use its best
endeavors to prevent any such disclosure as aforesaid.
The Custodian shall send to the Fund an advice or notification of any
transfers of securities to or from the custody accounts indicating, as to
securities acquired for the Fund, the identity of the entity having physical
possession of such securities.
In addition to reports required to be provided elsewhere herein, the
Custodian agrees to provide to the Fund (i) the reports set forth on Schedule D
hereto, as amended from time to time, at such times as set forth on such
Schedule and in substantially the forms provided to the Fund, and (ii) any other
special and periodic reports related to the services to be provided hereunder as
the Fund may reasonably request and as may be mutually agreed upon by the
parties.
The Custodian agrees to attend periodic meetings of the Board to
discuss the operations to be performed under this Contract at such times and at
such places as the Fund may reasonably request.
The Custodian shall provide GlobalQuest(R) software to the parties and
at the locations specified on attached Schedule C pursuant to the terms of the
Data Services Addendum to Custodian Contract at no additional charge other than
as provided therein.
10. Opinion by Fund's Independent Accountant
The Custodian shall take all reasonable action, as the Fund on behalf
of each applicable Portfolio may from time to time request, to obtain from year
to year favorable opinions from the Fund's independent accountants with respect
to the Custodian's activities hereunder in
26
connection with the preparation of the Fund's Form N-1A, Form N-SAR and any
other special or periodic reports to the SEC and with respect to any other SEC
requirements.
11. Disaster Recovery; Banker's Blanket Bond
In the event of equipment failures beyond the Custodian's control, the
Custodian shall, at no additional expense to a Portfolio, take reasonable steps
to minimize service interruptions. The Custodian shall enter into and shall
maintain in effect with appropriate parties one or more agreements making
reasonable provision for (i) periodic back-up of the computer files and data
with respect to a Portfolio and (ii) emergency use of electronic data processing
equipment to provide services under this Contract and the Data Access Services
Addendum hereto.
The Custodian hereby warrants to the Fund that the Custodian is
maintaining a Bankers' Blanket Bond in a commercially reasonable amount, and the
Custodian hereby agrees to notify the Fund in the event its Bankers' Blanket
Bond is canceled or otherwise lapses.
12. Compensation of Custodian
The Custodian shall be entitled to reasonable compensation for its
services and expenses as Custodian as set forth on Schedule B hereto, as such
Schedule B may be amended in writing from time to time by the Fund, on behalf of
each applicable Portfolio, and the Custodian.
13. Responsibility of Custodian
The Custodian shall exercise reasonable care in carrying out the
provisions of this Contract and Proper Instructions.
The Custodian shall be responsible for the acts and omissions of (i)
sub-custodians located in the United States of America appointed pursuant to
Article 1 hereof, (ii) foreign banking institutions appointed pursuant to the
terms of Article 3 hereof as if such acts and omissions were those of the
Custodian, and (iii) Japan Securities Depository Center ("JASDEC"), Euroclear
and Cedel Bank S.A.
So long as and to the extent that it exercises 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
commission merchant acting pursuant to the terms of a three-party futures or
options agreement. The Custodian shall be kept indemnified by (to the extent of
the assets in the applicable Portfolio(s))
27
and shall be without liability to the Fund for any action taken or omitted by it
in good faith without negligence or willful misconduct on its part or on the
part of its sub-custodians or agents. The Custodian shall be entitled reasonably
to rely on and may act upon advice of counsel experienced in the pertinent area
of law (who may be counsel for the Fund) on all matters, and shall be without
liability for any action reasonably taken or omitted pursuant to such advice.
Except as may arise from the Custodian's own negligence or willful
misconduct or the negligence or willful misconduct of a sub-custodian, agent or
nominee, the Custodian shall be without liability to the Fund for any loss,
liability, claim or expense resulting from or caused by (i) events or
circumstances beyond the reasonable control of the Custodian or any
sub-custodian or Securities System or any agent or nominee of any of the
foregoing, including, without limitation, (a) the interruption, suspension or
restriction of trading on or the closure of any securities markets, and (b)
power or other mechanical or technological failures or interruptions, computer
viruses or communications disruptions, recognizing in each such case the
obligation of the Custodian, its subcustodians, agents and nominees to take
reasonable steps as circumstances require to minimize the effect of such
failures, interruptions, viruses and disruptions; (ii) errors by the Fund or its
investment advisor in their instructions to the Custodian provided such
instructions have been given in accordance with this Contract; (iii) the
insolvency of or acts or omissions by a Securities System except to the extent
set forth in subparagraph (iii) in the second paragraph of this Section 13; (iv)
any delay or failure of any broker, agent or intermediary, central bank or other
commercially prevalent payment or clearing system to deliver to the Custodian's
sub-custodian or agent securities purchased or in the remittance of payment made
in connection with securities sold; (v) any delay or failure of any company,
corporation, or other body in charge of registering or transferring securities
in the name of the Custodian, the Fund, the Custodian's sub-custodians, nominees
or agents or any consequential losses arising out of such delay or failure to
transfer such securities including non-receipt of bonus, dividends and rights
and other accretions or benefits; (vi) delays or inability to perform its duties
due to any disorder in market infrastructure with respect to any particular
security or Securities System; (vii) any provision of any present or future law
or regulation or order of the United States, or any other country, or political
subdivision thereof or of any court of competent jurisdiction; and (viii) any
loss where the Custodian, its sub-custodian, its agent or its nominee has
otherwise exercised reasonable care. Regardless of whether assets are maintained
in the custody of a foreign banking institution or a foreign securities system,
the Custodian shall not be liable for "country risk", i.e., any loss, damage,
cost, expense, liability or claim resulting from, or caused by, the direction of
or authorization by the Fund to maintain custody of any securities or cash of
the Fund or of a Portfolio in a foreign country including, but not limited to,
losses resulting from nationalization, expropriation, imposition of currency
controls or restrictions, acts of war or terrorism, riots, revolutions, work
stoppages, natural disasters or other similar events or acts. Notwithstanding
the foregoing, in delegating custody duties to State Street London Ltd., the
Custodian shall not be relieved of any responsibility to the Fund 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, provided that the Custodian and State Street London Ltd. have exercised
reasonable care.
28
If the Fund on behalf of a Portfolio 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 Fund or the Portfolio being liable for the payment
of money or incurring liability of some other form, the Fund on behalf of the
Portfolio, as a prerequisite to requiring the Custodian to take such action,
shall provide indemnity to the Custodian in an amount and form satisfactory to
the Custodian.
If the Fund requires the Custodian, its affiliates, subsidiaries or
agents, to advance cash or securities for any purpose (including but not limited
to securities settlements, the purchase or sale of foreign exchange or of
contracts for foreign exchange, and assumed settlement) for the benefit of a
Portfolio, any property at any time held for the account of the applicable
Portfolio shall be security therefor and should the Fund fail to repay the
Custodian promptly, the Custodian shall (a) promptly notify the Fund with
respect thereto and (b) be entitled to utilize available cash and to dispose of
such Portfolio's assets to the extent necessary to obtain reimbursement,
provided that such utilization shall not be contingent on the giving of notice
to the Fund.
In the event that the Custodian or its nominee shall incur or be
assessed any taxes (except as are directly attributable to income, franchise or
similar taxes which may be imposed on or assessed against the Custodian, its
affiliates, subsidiaries, agents, or nominees) accruing to the Custodian, its
affiliates, subsidiaries or agents in the course of its or their performance of
this Contract, including without limitation taxes on dividends, interest and
capital gain earned with respect to Portfolio assets, 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 Portfolio shall be security therefor and the Custodian shall (a)
provide the Fund with three (3) New York business days' notice with respect
thereto and (b), in the event such matter has not been resolved within such
time, be entitled to utilize available cash and to dispose of such Portfolio's
assets to the extent necessary to obtain reimbursement.
In the event that the Custodian or its nominee shall be subject to any
claims or liabilities accruing to the Custodian, its affiliates, subsidiaries or
agents in the course of its or their performance of this Contract, which claims
or liabilities either (i) are described on Schedule B hereto or (ii) could not
reasonably have been anticipated by the Custodian on the date hereof, 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 Portfolio shall be security therefor and the Custodian
shall (a) provide the Fund with three (3) New York business days' notice with
respect thereto and (b), in the event such matter has not been resolved within
such time, be entitled to utilize available cash and to dispose of such
Portfolio's assets to the extent necessary to obtain reimbursement.
29
Upon the Custodian becoming aware in the course of the performance of
its duties hereunder of the occurrence of any event with respect to the assets
of a Portfolio held by the Custodian or its sub-custodian or agent hereunder
which causes or may cause any loss, damage, cost, expense or other liability to
a Portfolio, the Custodian shall promptly notify an authorized person of the
Fund and, at the Fund's request, assist the Fund in using all commercially
reasonable key steps under the circumstances to mitigate the effects of such
event and to avoid continuing harm to the Portfolio. If the steps referred to in
the previous sentence would be, in the reasonable determination of the
Custodian, beyond the normal scope of the Custodian's services as a global
custodian of mutual fund assets, the taking of those steps shall be at the
Fund's expense.
In no event shall the Custodian be liable hereunder for indirect,
special or consequential damages.
14. Effective Period, Termination and Amendment
This Contract shall become effective as of the date set forth below,
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
in writing 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 (i) in the case of termination by a Portfolio not sooner than one
hundred eighty (180) days after the date of such delivery or mailing or (ii) in
the case of termination by the Custodian not sooner than one hundred twenty
(120) days after the date of such delivery or mailing, except that, in the event
of a breach of this Contract on the part of the Fund, such termination shall not
take effect sooner than sixty (60) days thereafter; provided, however that the
Custodian shall not, with respect to a Portfolio, 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 has approved the initial use of a particular
Securities System by such Portfolio, as required by Rule 17f-4 under the 1940
Act and that the Custodian shall not, with respect to a Portfolio, act under
Section 2.11 hereof in the absence of receipt of an initial certificate of the
Secretary or an Assistant Secretary that the Board has approved the initial use
of the Direct Paper System by such Portfolio; provided further, however, that
the Fund shall not amend or terminate this Contract in contravention of any
applicable federal or state regulations, or any provision of the Charter, and
further provided, that the Fund on behalf of one or more of the Portfolios may
at any time by action of the Board (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 relevant Federal or State
agency or upon the happening of a like event at the direction of an appropriate
regulatory agency or court of competent jurisdiction.
30
Upon termination of this Contract, the Fund on behalf of each
applicable Portfolio shall pay to the Custodian such compensation as may be due
as of the date of such termination and the Custodian's reasonable out-of-pocket
costs, expenses and disbursements in connection therewith, such termination to
be conducted in a professional and businesslike manner.
15. Ownership Certificates for Tax Purposes
The Custodian shall, in its capacity as the Fund's agent, execute
ownership and other certificates and affidavits for all governmental purposes in
connection with receipt of income or other payments with respect to securities
or other assets of each Portfolio held by it and in connection with transfers of
such securities or assets.
16. Successor Custodian
If a successor Custodian shall be appointed by the Board, the Custodian
shall, upon termination, deliver to such successor Custodian at the offices of
the Custodian, duly endorsed and in the form for transfer, all securities, funds
and other properties of each applicable Portfolio then held by it hereunder and
shall transfer to an account of the successor Custodian all of the securities of
each such Portfolio held in a Securities System. If no such successor Custodian
shall be appointed, the Custodian shall, in like manner, upon receipt of a
Certified Resolution, deliver at the offices of the Custodian and transfer such
securities, funds and other properties in accordance with such resolution. In
the event that no written order designating a successor Custodian or Certified
Resolution 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 1940
Act, doing business in Boston, Massachusetts, or New York, New York, of its own
selection, having an aggregate capital, surplus, and undivided profits, as shown
by its last published report, of not less than $200,000,000, all securities,
funds and other properties held by the Custodian on behalf of each applicable
Portfolio and all instruments held by the Custodian relative thereto and all
other property held by it under this Contract on behalf of each applicable
Portfolio and to transfer to an account of such successor Custodian all of the
securities of each such Portfolio 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 Fund to procure the Certified Resolution referred to or of the
Board 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.
31
17. Notices.
Any notice, instruction or other instrument required to be given
hereunder may be delivered in person to the offices of the parties as set forth
herein during normal business hours or delivered prepaid registered mail or by
telex, cable or telecopy to the parties at the following addresses or such other
addresses as may be notified in writing by any party from time to time. If
notice is sent by confirming telegram, cable, telex, or facsimile sending
device, it shall be deemed to have been given immediately if confirmed in
writing by overnight delivery. If notice is sent by first-class mail, it shall
be deemed to have been given five days after it has been mailed. If notice is
sent by messenger, it shall be deemed to have been given on the day it is
delivered.
To the Company: *[NAME OF FUND]
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000, XXX
Attention: Xxxxxx X. Xxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
To the Custodian: STATE STREET BANK AND TRUST COMPANY
0000 Xxxxxxxx Xxxxx
Xxxxx Xxxxxx, Xxxxxxxxxxxxx 00000, XXX
Attention: Xxxx X. Xxxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
18. Headings
The section headings in this Contract are for the convenience of
reference only and do not form a part of this Contract.
19. Counterparts
This Contract may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
20. Additional Funds
In the event that the Fund establishes additional series of Shares with
respect to which it desires to have the Custodian render services as custodian
under the terms hereof, it shall so
32
notify the Custodian in writing and, if the Custodian agrees in writing to
provide such services, the parties hereto will amend Schedule F to so reflect
and such series of Shares shall become a Portfolio hereunder.
21. Massachusetts Law to Apply
This Contract shall be construed and the provisions thereof interpreted
under and in accordance with laws of The Commonwealth of Massachusetts.
22. Prior Contracts
This Contract supersedes and terminates, as of the date hereof, all
prior contracts between the Fund and the Custodian relating to the custody of
the assets of the Portfolio(s).
23. Recourse Against Shareholders, Officers and Trustees*
This Contract is executed by the officers of the Fund in their capacity
as such and not individually. Any responsibility or liability of the Fund (or a
particular Portfolio) under any provision of this Contract shall be satisfied
solely from the assets of the Fund or the particular Portfolio, tangible or
intangible, realized or unrealized, and in no event shall the Custodian, a
sub-custodian or agent have any recourse against the shareholders, officers or
Trustees of the Fund under this Contract or against any one Portfolio for the
obligations of any other Portfolio.
24. Reproduction of Documents.
This Contract and all schedules, exhibits, attachments and amendments
hereto may be reproduced by any photographic, photostatic, microfilm,
micro-card, miniature photographic or other similar process. The parties hereto
each agree that any such reproduction shall be admissible in evidence as the
original itself in any judicial or administrative proceeding, whether or not the
original is in existence and whether or not such reproduction was made by a
party in the regular course of business, and that any enlargement, facsimile or
further reproduction of such reproduction shall likewise be admissible in
evidence.
-------------------
* To be included in contracts with business trusts only.
33
25. Shareholder Communications Election
SEC Rule 14b-2 under the Securities Exchange Act of 1934, as amended,
requires banks which hold securities for the account of customers to respond to
requests by issuers of securities for the names, addresses and holdings of
beneficial owners of securities of that issuer held by the bank unless the
beneficial owner has expressly objected to disclosure of this information. In
order to comply with the rule, the Custodian needs the Fund to indicate whether
it authorizes the Custodian to provide the Fund's name, address, and share
position to requesting companies whose securities the Fund owns. If the Fund
tells the Custodian "no", the Custodian will not provide this information to
requesting companies. If the Fund tells the Custodian "yes" or does not check
either "yes" or "no" below, the Custodian is required by the rule to treat the
Fund as consenting to disclosure of this information for all securities owned by
the Fund or any funds or accounts established by the Fund. For the Fund's
protection, the Rule prohibits the requesting company from using the Fund's name
and address for any purpose other than corporate communications. Please indicate
below whether the Fund consents or objects by checking one of the alternatives
below.
YES [ ] The Custodian is authorized to release the Fund's
name, address and share positions.
NO [X] The Custodian is not authorized to release the
Fund's name, address and share positions.
34
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 *[Date].
WARBURG, XXXXXX *[complete name of Fund]
By:__________________________
Name:________________________
Title:_______________________
STATE STREET BANK AND TRUST COMPANY
By:_________________________
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President
35
SCHEDULE C
Pursuant to the terms of (i) the Custodian Contract dated *[date] between the
registered investment companies listed on Schedule F thereto, as such Schedule F
may be amended from time to time, and State Street Bank and Trust Company and
(ii) the Data Access Services Addendum thereto of even date therewith (the "Data
Access Services Addendum"), the following persons and/or entities may use the
Data Access Services (as such term is defined in the Data Access Services
Addendum):
36
SCHEDULE D
Reports
Description of Report Period of Report
--------------------- ----------------
Open Trades* Daily
Cash Availability Daily (by 10:00 a.m.)
Cash Transaction Statement* Daily
Portfolio Holdings Report* Daily
Failed Trades Report Daily
Corporate Action Report - (Pre-Notification) Daily
Global Cash Statement* Daily
Currency Balance Report Daily
Cash Transaction Statement* Weekly
Corporate Action Report (Summary) Weekly
Out-for-Transfer Report Weekly
Sedol Holdings Report Weekly
Purchase/Sales Report* Monthly
Broker Top Ten Report* Monthly
Capital Stock Activity Report Monthly
Cash Transaction Statement* Monthly
Corporate Action Report Monthly
Global Cash Statement* Monthly
Failed Trades Monthly
Outstanding Receivables* Monthly
FX Activity Report Monthly
Base Equivalent Cash Statement* Monthly
Corporate Action Final Notification When Applicable
* Also Available Via GlobalQuest(R)
37
SCHEDULE E
Countries/Settlement Systems with Respect to which
Contractual Settlement May be Provided
Australia
Austria
Belgium
Canada
Denmark
Euroclear
Finland
France
Germany
Hong Kong
Indonesia
Ireland
Italy
Japan
Luxembourg
Malaysia
Mexico
Netherlands
New Zealand
Norway
Philippines
Portugal
Singapore
South Africa
Spain
Sweden
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38
SCHEDULE F
39
DATA ACCESS SERVICES ADDENDUM TO CUSTODIAN CONTRACT
AGREEMENT between Warburg, Xxxxxx *[Name of Fund] (the "Customer") and
State Street Bank and Trust Company ("State Street").
PREAMBLE
WHEREAS, State Street has been appointed as custodian of certain assets
of the Customer pursuant to a certain Custodian Contract (the "Custodian
Contract") dated as of *[Date];
WHEREAS, State Street has developed and utilizes proprietary accounting
and other systems, including State Street's proprietary Multicurrency HORIZON(R)
Accounting System, in its role as custodian of the Customer, and maintains
certain Customer-related data ("Customer Data") in databases which databases are
under the control and ownership of State Street (the "Data Access Services");
and
WHEREAS, State Street makes available to the Customer certain Data
Access Services solely for the benefit of the Customer, and intends to provide
additional services, consistent with the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, and for other good and valuable consideration, the parties
agree as follows:
1. SYSTEM AND DATA ACCESS SERVICES
a. System. Subject to the terms and conditions of this Agreement, State
Street hereby agrees to provide the Customer with access to State Street's
Multicurrency HORIZON(R) Accounting System and the other information systems
(collectively, the "System") as described in Attachment A, on a remote basis for
the purpose of obtaining reports, solely on computer hardware, system software
and telecommunication links of the Customer, or certain third parties approved
by State Street that provide services to the Customer (the "Service Provider")
as listed in Attachment B and solely with respect to the Customer (the
"Designated Configuration") or on any designated substitute or back-up equipment
configuration with State Street's written consent, such consent not to be
unreasonably withheld.
b. Data Access Services. State Street agrees to make available to the
Customer the Data Access Services subject to the terms and conditions of this
Agreement and data access operating standards and procedures as may be issued by
State Street from time to time. The
ability of the Customer to originate electronic instructions to State Street on
behalf of the Customer in order to (i) effect the transfer or movement of cash
or securities held under custody by State Street, (ii) transmit accounting or
other information (such transactions are referred to herein as "Client
Originated Electronic Financial Instructions"), and (iii) access data for the
purpose of reporting and analysis, shall be deemed to be Data Access Services
for purposes of this Agreement.
c. Additional Services. State Street shall make available to the
Customer, on terms generally available to State Street's other custody clients
which are investment companies registered under the Investment Company Act of
1940, as amended, additional Systems that are not described in the attachments
to this Agreement that are made available to other U.S.-registered investment
company custody clients of State Street. In the absence of any other written
agreement concerning such additional systems, the term "System" shall include,
and this Agreement shall govern, the Customer's access to and use of any
additional System made available by State Street and/or accessed by the
Customer.
2. NO USE OF THIRD PARTY SOFTWARE
State Street and the Customer acknowledge that in connection with the
Data Access Services provided under this Agreement, the Customer will have
access, through the Data Access Services, to Customer Data and to functions of
State Street's proprietary systems; provided, however that in no event will the
Customer have direct access to any third party systems-level software that
retrieves data for, stores data from, or otherwise supports the System.
3. LIMITATION ON SCOPE OF USE
a. Designated Equipment; Designated Locations. The System and the Data
Access Services shall be used and accessed solely on and through the Designated
Configuration at the offices of the Customer or certain agents of the Customer
(the "Designated Agents") located in Delaware and New York ("Designated
Locations").
b. Designated Configuration; Trained Personnel. State Street shall be
responsible for supplying, installing and maintaining the Designated
Configuration at the
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Designated Locations. State Street and the Customer agree that each will engage
or retain the services of trained personnel to enable both parties to perform
their respective obligations under this Agreement. State Street agrees to use
commercially reasonable efforts to maintain the System so that it remains
serviceable, provided, however, that State Street does not guarantee or assure
uninterrupted remote access use of the System.
c. Scope of Use. The Customer will use the System and the Data Access
Services only for (x) the processing of securities transactions and (y)
accessing data for informational purposes related to services provided pursuant
to the Custodian Contract or such other services as the Custodian may from time
to time agree in writing to provide. The Customer shall not, and shall cause its
employees and agents not to (i) permit any third party (other than a Service
Provider) to use the System or the Data Access Services, (ii) sell, rent,
license or otherwise use the System or the Data Access Services for any purpose
other than as expressly authorized under this Agreement, (iii) allow access to
the System or the Data Access Services through terminals or any other computer
or telecommunications facilities located outside the Designated Locations, (iv)
allow or cause any information (other than portfolio holdings, valuations of
portfolio holdings, and other information reasonably necessary for the
management or distribution of the assets of the Customer) transmitted from State
Street's databases, including data from third party sources, available through
use of the System or the Data Access Services to be redistributed or
retransmitted to another computer, terminal or other device for other than use
for or on behalf of the Customer or (v) modify the System in any way, including
without limitation, developing any software for or attaching any devices or
computer programs to any equipment, system, software or database which forms a
part of or is resident on the Designated Configuration.
d. Other Locations. Except in the event of an emergency or of a planned
System shutdown, the Customer's access to services performed by the System or to
Data Access Services at a Designated Location may be transferred to a different
location only upon the prior written consent of State Street. In the event of an
emergency or System shutdown, the Customer may use any back-up site included in
the Designated Configuration or any other back-up site agreed to by State
Street, which agreement will not be unreasonably withheld. The Customer may
secure from State Street the right to access the System or the Data Access
Services through computer and telecommunications facilities or devices complying
with the Designated Configuration at additional locations only upon the prior
written consent of State Street and on terms to be mutually agreed upon by the
parties.
e. Title. Title and all ownership and proprietary rights to the System,
including any enhancements or modifications thereto, whether or not made by
State Street, are and shall remain with State Street.
f. No Modification. Without the prior written consent of State Street,
the Customer shall not modify, enhance or otherwise create derivative works
based upon the System, nor shall the Customer reverse engineer, decompile or
otherwise attempt to secure the source code for all or any part of the System.
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g. Security Procedures. The Customer shall comply with data access
operating standards and procedures and with user identification or other
password control requirements and other security procedures as may be issued
from time to time by State Street for use of the System on a remote basis and to
access the Data Access Services. The Customer shall have access only to the
Customer Data and authorized transactions agreed upon from time to time by State
Street and, upon notice from State Street, the Customer shall discontinue remote
use of the System and access to Data Access Services for any security reasons
cited by State Street.
4. PROPRIETARY INFORMATION
a. Proprietary Information. The Customer acknowledges and State Street
represents that the System and the databases, computer programs, screen formats,
report formats, interactive design techniques, documentation and other
information (other than Customer Data) made available to the Customer by State
Street as part of the Data Access Services and through the use of the System
constitute copyrighted, trade secret, or other proprietary information of
substantial value to State Street. Any and all such proprietary information
provided by State Street to the Customer shall be deemed proprietary and
confidential information of State Street (hereinafter "Proprietary
Information"). The Customer agrees that it will hold such Proprietary
Information in confidence and secure and protect it in a manner consistent with
its own procedures for the protection of its own confidential information and to
take appropriate action by instruction or agreement with its employees who are
permitted access to the Proprietary Information to satisfy its obligations
hereunder. The Customer further acknowledges that State Street shall not be
required to provide the Service Provider with access to the System unless it has
first received from the Service Provider an undertaking with respect to State
Street's Proprietary Information in the form of Attachment C to this Agreement.
The Customer shall use all commercially reasonable efforts to assist State
Street in identifying and preventing any unauthorized use, copying or disclosure
of the Proprietary Information or any portions thereof or any of the logic,
formats or designs contained therein.
b. Cooperation. Without limitation of the foregoing, the Customer shall
advise State Street immediately in the event the Customer learns or has reason
to believe
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that any person to whom the Customer has given access to the Proprietary
Information, or any portion thereof, has violated or intends to violate the
terms of this Agreement, and the Customer will, at its expense, cooperate with
State Street in seeking injunctive or other equitable relief in the name of the
Customer or State Street against any such person.
c. Injunctive Relief. The Customer acknowledges that the disclosure of
any Proprietary Information, or of any information which at law or equity ought
to remain confidential, will immediately give rise to continuing irreparable
injury to State Street inadequately compensable in damages at law. In addition,
State Street shall be entitled to obtain immediate injunctive relief against the
breach or threatened breach of any of the foregoing undertakings, in addition to
any other legal remedies which may be available.
d. Survival. The provisions of this Section 4 shall survive the
termination of this Agreement.
5. LIMITATION ON LIABILITY
a. Limitation on Amount and Time for Bringing Action. The Customer
agrees that State Street's liability to the Customer arising out of contract,
strict liability in tort, or any other cause of action under this Agreement for
its provision of Data Access Services or the System shall be limited to (i)
U.S.$750,000.00 per such cause of action and (ii) a total of U.S.$2,000,000.00
during the term of this Agreement. The parties agree that in the event the
Customer purchases Data Access Services in addition to GlobalQuest(R), they will
negotiate in good faith with respect to the foregoing damages limitation. No
action, regardless of form, arising out of this Agreement may be brought by the
Customer more than two years after the Customer has knowledge that the cause of
action has arisen.
b. Warranty. State Street represents and warrants that it has the right
to provide the Customer with access to the System and, to the best of State
Street's knowledge, the System does not infringe upon the intellectual property
rights of third parties. NO OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED,
INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE, ARE MADE BY STATE STREET. IN NO EVENT WILL
STATE STREET BE LIABLE TO THE CUSTOMER OR ANY OTHER PARTY FOR ANY CONSEQUENTIAL
OR INCIDENTAL DAMAGES WHICH MAY ARISE FROM THE CUSTOMER'S ACCESS TO THE SYSTEM
OR USE OF INFORMATION OBTAINED THEREBY.
c. Third-Party Data. Organizations from which State Street may obtain
certain data included in the System or the Data Access Services are solely
responsible for the contents of such data, and State Street shall have no
liability for claims arising out of the contents of such third-party data,
including, but not limited to, the accuracy thereof.
d. Regulatory Requirements. As between State Street and the Customer,
the Customer shall be solely responsible for the accuracy of any accounting
statements or reports produced using the Data Access Services and the System and
the conformity thereof with any requirements of law.
e. Force Majeure. Neither party shall be liable for any costs or
damages due to delay or nonperformance under this Agreement arising out of any
cause or event beyond such party's control, including without limitation,
cessation of services hereunder or any damages resulting therefrom to the other
party, or the Customer as a result of work stoppage, power or other mechanical
failure, computer virus, natural disaster, governmental action, or communication
disruption; provided that State Street shall take reasonable steps under the
facts and circumstances then prevailing to mitigate continuing harm to the
Customer resulting from State Street's nonperformance under this Agreement
arising out of such causes and events.
6. INDEMNIFICATION
The Customer agrees to indemnify and hold State Street harmless from
any loss, damage or expense including reasonable attorney's fees, (a "loss")
suffered by State Street arising from the negligence or willful misconduct in
the use by the Customer of the Data Access Services or the System, including any
loss incurred by State Street resulting from a security breach at a Designated
Location or committed by the Customer, the Service Provider(s), or either of
their employees or agents.
State Street agrees to defend, indemnify and hold Customer harmless
from and against any claims, suits or damages sustained (including reasonable
attorney's fees) if Customer is called upon to defend any claim that Customer's
use of the System directly infringes any United States patent, trade secret or
copyright, provided (a) Customer promptly notifies State Street in writing of
such claim, and (b) Customer agrees that State Street shall have sole control
over the defense or settlement of such claim.
7. FEES
Fees and charges for the use of the System and the Data Access Services
and related payment terms shall be as set forth in Schedule B of the Custodian
Contract, as such Schedule B may be revised from time to time by the parties
(the "Fee Schedule").
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8. TRAINING, IMPLEMENTATION AND CONVERSION
a. Training. State Street agrees to provide training, at a designated
State Street training facility or at a Designated Location, to the Customer's
personnel in connection with the use of the System on the Designated
Configuration. The Customer agrees that it will set aside, during regular
business hours or at other times agreed upon by both parties, sufficient time to
enable all operators of the System and the Data Access Services, designated by
the Customer, to receive the training offered by State Street pursuant to this
Agreement.
b. Installation and Conversion. State Street shall be responsible for
the technical installation and conversion ("Installation and Conversion") of the
Designated Configuration. The Customer shall have the following responsibilities
in connection with Installation and Conversion of the System:
(i) The Customer shall be solely responsible for the timely
acquisition and maintenance of the hardware and software that
attach to the Designated Configuration in order to use the
Data Access Services at the Designated Locations.
(ii) State Street and the Customer each agree that they will assign
qualified personnel to actively participate during the
Installation and Conversion phase of the System implementation
to enable both parties to perform their respective obligations
under this Agreement.
9. SUPPORT
During the term of this Agreement, State Street agrees to provide the
support services set out in Attachment D to this Agreement.
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10. TERM OF AGREEMENT
a. Term of Agreement. This Agreement shall become effective on the date
of its execution by State Street and shall remain in full force and effect until
terminated as herein provided.
b. Termination of Agreement. Either party may terminate this Agreement
(i) for any reason by giving the other party at least one-hundred and eighty
days' prior written notice in the case of notice of termination by State Street
to the Customer or thirty days' notice in the case of notice from the Customer
to State Street of termination; or (ii) immediately for failure of the other
party to comply with any material term and condition of the Agreement by giving
the other party written notice of termination. In the event the Customer shall
cease doing business, shall become subject to proceedings under the bankruptcy
laws (other than a petition for reorganization or similar proceeding) or shall
be adjudicated bankrupt, this Agreement and the rights granted hereunder shall,
at the option of State Street, immediately terminate with notice to the
Customer. This Agreement shall in any event terminate as to the Customer within
90 days after the termination of the Custodian Contract applicable to such
Customer.
c. Termination of the Right to Use. Upon termination of this Agreement
for any reason, any right to use the System and access to the Data Access
Services shall terminate and the Customer shall immediately cease use of the
System and the Data Access Services. Immediately upon termination of this
Agreement for any reason, the Customer shall return to State Street all copies
of documentation and other Proprietary Information in its possession and State
Street shall return to Customer all Customer Data in its possession; provided,
however, that in the event that either party terminates this Agreement or the
Custodian Contract for any reason other than the Customer's breach, State Street
shall provide the Data Access Services for a period of time and at a price to be
agreed upon by the parties. Should State Street be in possession of information
requested by regulatory agencies having jurisdiction over the
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Customer, State Street will cooperate with the Customer to make such information
available to such regulatory agencies for a commercially reasonable time
following termination of this Agreement.
11. MISCELLANEOUS
a. Assignment; Successors. This Agreement and the rights and
obligations of the Customer and State Street hereunder shall not be assigned by
either party without the prior written consent of the other party, except that
State Street may assign this Agreement to a successor of all or a substantial
portion of its business, or to a party controlling, controlled by, or under
common control with State Street.
b. Survival. All provisions regarding indemnification, warranty,
liability and limits thereon, and confidentiality and/or protection of
proprietary rights and trade secrets shall survive the termination of this
Agreement.
c. Entire Agreement. This Agreement and the attachments hereto
constitute the entire understanding of the parties hereto with respect to the
Data Access Services and the use of the System and supersedes any and all prior
or contemporaneous representations or agreements, whether oral or written,
between the parties as such may relate to the Data Access Services or the
System, and cannot be modified or altered except in a writing duly executed by
the parties. This Agreement is not intended to supersede or modify the duties
and liabilities of the parties hereto under the Custodian Contract or any other
agreement between the parties hereto except to the extent that any such
agreement specifically refers to the Data Access Services or the System. No
single waiver or any right hereunder shall be deemed to be a continuing waiver.
d. Severability. If any provision or provisions of this Agreement shall
be held to be invalid, unlawful, or unenforceable, the validity, legality, and
enforceability of the remaining provisions shall not in any way be affected or
impaired.
e. Governing Law. This Agreement shall be interpreted and construed in
accordance with the internal laws of The Commonwealth of Massachusetts without
regard to the conflict of laws provisions thereof.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement effective as of *[Date].
WARBURG, XXXXXX *[Name of Fund]
By: __________________________________
Name: __________________________________
Title: __________________________________
STATE STREET BANK AND TRUST COMPANY
By: __________________________________
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President
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ATTACHMENT A
System Product Description
I. Multicurrency HORIZON(R) Accounting System. The Multicurrency
HORIZON(R) Accounting System is designed to provide lot level portfolio and
general ledger accounting for SEC and ERISA type requirements and includes the
following services: 1) recording of general ledger entries; 2) calculation of
daily income and expense; 3) reconciliation of daily activity with the trial
balance, and 4) appropriate automated feeding mechanisms to (i) domestic and
international settlement systems, (ii) daily, weekly and monthly evaluation
services, (iii) portfolio performance and analytic services, (iv) customer's
internal computing systems and (v) various State Street provided information
services products.
II. GlobalQuest(R). GlobalQuest(R) is designed to provide customer
access to the following information maintained on The Multicurrency HORIZON(R)
Accounting System: 1) cash transactions and balances; 2) purchases and sales; 3)
income receivables; 4) tax refund; 5) daily-priced positions; 6) open trades; 7)
settlement status; 8) foreign exchange transactions; 9) trade history; and 10)
daily, weekly and monthly evaluation services.
ATTACHMENT B
Designated Configuration
ATTACHMENT C
Undertaking
The undersigned understands that in the course of its employment as an
agent of Warburg, Xxxxxx *[Name of Fund] (the "Customer") it will have access to
State Street Bank and Trust Company's ("State Street") Multicurrency HORIZON(R)
Accounting System and other information systems (collectively, the "System").
The undersigned acknowledges that the System and the databases,
computer programs screen formats, report formats, interactive design techniques,
documentation and other information made available to the Undersigned by State
Street as part of the Data Access Services provided to the Customer and through
the use of the System constitute copyrighted, trade secret, or other proprietary
information of substantial value to State Street. Any and all such information
provided by State Street to the Undersigned shall be deemed proprietary and
confidential information of State Street ( hereinafter "Proprietary
Information"). The Undersigned agrees that it will hold such Proprietary
Information in confidence and secure and protect it in a manner consistent with
its own procedures for the protection of its own confidential information and to
take appropriate action by instruction or agreement with its employees who are
permitted access to the Proprietary Information to satisfy its obligations
hereunder.
The Undersigned will not attempt to intercept data, gain access to data
in transmission, or attempt entry into any system or files for which it is not
authorized. It will not intentionally adversely affect the integrity of the
System through the introduction of unauthorized code or data, or through
unauthorized deletion.
Upon notice by State Street for any reason, any right to use the System
and access to the Data Access Services shall terminate and the Undersigned shall
immediately cease use of the System and the Data Access Services. Immediately
upon notice by State Street for any reason, the Undersigned shall return to
State Street all copies of documentation and other Proprietary Information in
its possession. With respect to any dispute arising in connection with this
Undertaking, the Undersigned (i) understands that this Undertaking shall be
construed in accordance with the laws of The Commonwealth of Massachusetts and
(ii) consents to the jurisdiction of the courts of The Commonwealth of
Massachusetts.
*[Name of Designated Agent]
By: ______________________________
Name: ______________________________
Title: ______________________________
Date: ______________________________
ATTACHMENT D
Support
During the term of this Agreement, State Street agrees to provide the
following on-going support services:
a. Telephone Support. The Customer Designated Persons may contact State
Street's HORIZON(R) Help Desk and Customer Assistance Center between the hours
of 8 a.m. and 6 p.m. (Eastern time) on all business days for the purpose of
obtaining answers to questions about the use of the System, or to report
apparent problems with the System. From time to time, the Customer shall provide
to State Street a list of persons, not to exceed five in number, who shall be
permitted to contact State Street for assistance (such persons being referred to
as the "Customer Designated Persons").
b. Technical Support. State Street will provide technical support to
assist the Customer in using the System and the Data Access Services. The total
amount of technical support provided by State Street shall not exceed 10
resource days per year. State Street shall provide such additional technical
support as is expressly set forth in the fee schedule in effect from time to
time between the parties (the "Fee Schedule"). Technical support, including
during installation and testing, is subject to the fees and other terms set
forth in the Fee Schedule.
c. Maintenance Support. State Street shall use commercially reasonable
efforts to correct system functions that do not work according to the System
Product Description as set forth on Attachment A in priority order in the next
scheduled delivery release or otherwise as soon as is practicable.
d. System Enhancements. State Street will provide to the Customer any
enhancements to the System developed by State Street and made a part of the
System; provided that, sixty (60) days prior to installing any such enhancement,
State Street shall notify the Customer and shall offer the Customer reasonable
training on the enhancement. Charges for system enhancements shall be as
provided in the Fee Schedule. State Street retains the right to charge for
related systems or products that may be developed and separately made available
for use other than through the System.
e. Custom Modifications. In the event the Customer desires custom
modifications in connection with its use of the System, the Customer shall make
a written request to State Street providing specifications for the desired
modification. Any custom modifications may be undertaken by State Street in its
sole discretion in accordance with the Fee Schedule.
f. Limitation on Support. State Street shall have no obligation to
support the Customer's use of the System: (1) for use on any computer equipment
or telecommunication facilities which does not conform to the Designated
Configuration or (ii) in the event the Customer has modified the System in
breach of this Agreement.
