Custodian Agreement
Master Custodian Agreement
This Agreement between each entity set forth on Appendix A hereto (as such
Appendix A may be amended from time to time) (each such entity and each entity
made subject to this Agreement in accordance with Section 18, referred to herein
individually as the Fund and collectively as the Funds), and State Street Bank
and Trust Company, a Massachusetts trust company (the Custodian).
Witnesseth:
Whereas, each of the Funds except Xxxxxxx Social Index Series, Inc. and Xxxxxxx
Impact Series, Inc. has previously entered into a Custodian Contract with the
Custodian;
Whereas, the Custodian and each of the Funds except Xxxxxxx Social Index Series,
Inc. and Xxxxxxx Impact Series, Inc. desire to replace such existing Custodian
Contracts with this Master Custodian Agreement;
Whereas, the Custodian and each of the Funds desire that fee schedules under the
existing Custodian Contracts (including the provision that the Funds are
entitled to pay fees to the Custodian by analysis on collected funds) remain the
same and also apply to Xxxxxxx Social Index Series, Inc. and Xxxxxxx Impact
Series, Inc., subject to the provisions of Section 13 of this Master Custodian
Agreement;
Whereas, the Custodian and Xxxxxxx Social Index Series, Inc. and Xxxxxxx Impact
Series, Inc. desire to enter into this Master Custodian Agreement;
Whereas, the Funds are registered under the Investment Company Act of 1940 and
each Fund appointed the Bank to act as its Custodian;
Whereas, the Funds may be authorized to issue shares in separate series, with
each such series representing interests in a separate portfolio of securities
and other assets; and
Whereas, each Fund so authorized intends that this Agreement be applicable to
each of its series set forth on Appendix A hereto (as such Appendix A may be
amended from time to time) (such series together with all other series
subsequently established by the Fund and made subject to this Agreement in
accordance with Section 24, be referred to herein as the Portfolio(s)).
Now Therefore, in consideration of the mutual covenants and agreements
hereinafter contained, the parties hereto agree as follows:
Section 1. Employment of Custodian and Property to be Held by It
Each Fund hereby employs the Custodian as the custodian of the assets of the
Portfolios of the Fund, including securities which the Fund, on behalf of the
applicable Portfolio desires to be held in places within the United States
(domestic securities) and securities it desires to be held outside the United
States (foreign securities). Each Fund on behalf of its Portfolio(s) agrees to
deliver to the Custodian all securities and cash of such Portfolios, and all
payments of income, payments of principal or capital distributions received by
it with respect to all securities owned by such Portfolio(s) from time to time,
and the cash consideration received by it for such new or treasury shares of
beneficial interest of each Fund representing interests in its Portfolios
(Shares ) as may be issued or sold from time to time. The Custodian shall not be
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responsible for any property of a Portfolio held or received by the Portfolio
and not delivered to the Custodian, including without limitation any property
released, delivered or otherwise removed from such Portfolio's account with the
Custodian pursuant to "Proper Instructions" (as such term is defined in Section
6 hereof).
Upon receipt of Proper Instructions, 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, but only in accordance with an applicable vote by
board of directors or the board of trustees of the applicable Fund (as
appropriate and in each case, the Board). The Custodian may employ as sub-
custodian for each Funds foreign securities on behalf of the applicable
Portfolio(s) the foreign banking institutions and foreign securities
depositories designated in Schedules A and B hereto but only in accordance with
the applicable provisions of Sections 3 and 4. The Custodian shall have no more
or less responsibility or liability to the Fund on account of any actions or
omissions of any sub-custodian so employed than any such sub-custodian has to
the Custodian.
All duties undertaken by the Custodian will be performed in a timely manner.
What constitutes timeliness in connection with a particular action will be
determined by the standards of the industry as they apply to the specific type
of transaction in question and taking into account relevant facts and
circumstances.
Section 2. Duties of the Custodian with Respect to Property of the Fund Held
By the Custodian in the United States
Section 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) Portfolio property released and delivered pursuant to
Section 2.2(15) or purchased pursuant to Section 2.7(7), or (b) securities which
are maintained pursuant to Section 2.9 in a clearing agency which acts as a
securities depository or in a book-entry system authorized by the U.S.
Department of the Treasury (each, a "U.S. Securities System").
Section 2.2 Delivery of Securities. The Custodian shall release and
deliver domestic securities owned by a Portfolio held by the Custodian or in a
U.S. Securities System account of the Custodian only upon receipt of Proper
Instructions on behalf of the applicable Portfolio, which may be continuing
instructions when deemed appropriate by the parties, and only in the following
cases:
1) Upon sale of such securities for the account of the Portfolio and
receipt of payment therefor;
2) Upon the receipt of payment in connection with any repurchase
agreement related to such securities entered into by the Portfolio;
3) In the case of a sale effected through a U.S. Securities System, in
accordance with the provisions of Section 2.9 hereof;
4) To the depository agent in connection with tender or other similar
offers for securities of the Portfolio;
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;
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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 2.8 or into
the name or nominee name of any sub-custodian appointed pursuant to Section 1;
or for exchange for a different number of bonds, certificates or other evidence
representing the same aggregate face amount or number of units; provided that,
in any such case, the new securities are to be delivered to the Custodian;
7) 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 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 Custodians 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;
provided that, in any such case, the new securities and cash, if any, are to be
delivered to the Custodian;
9) In the case of warrants, rights or similar securities, the surrender
thereof in the exercise of such warrants, rights or similar securities or the
surrender of interim receipts or temporary securities for definitive securities;
provided that, in any such case, the new securities and cash, if any, are to be
delivered to the Custodian;
10) For delivery in connection with any loans of securities made 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 Custodians account in the book-entry
system authorized by the U.S. Department of the Treasury, the Custodian will not
be held liable or responsible for the delivery of securities owned by the
Portfolio prior to the receipt of such collateral;
11) For delivery as security in connection with any borrowing 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 of the Fund;
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 ("CFTC") and/or any
contract market, or any similar organization or organizations, regarding account
deposits in connection with transactions by the Portfolio of the Fund;
14) Upon receipt of instructions from the transfer agent for the Fund
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(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 currently effective prospectus and statement of additional
information of the Fund related to the Portfolio (the "Prospectus"), in
satisfaction of requests by holders of Shares for repurchase or redemption; and
(15) Upon the sale of Portfolio property, and prior to or without receipt
of payment therefor, but only as set forth in Proper Instructions (such delivery
in advance of payment shall be referred to herein as a "Free Trade") and
(16) For any other proper purpose, but only upon receipt of Proper
Instructions from the Fund on behalf of the applicable Portfolio specifying the
securities of the Portfolio to be delivered, and naming the person or persons to
whom delivery of such securities shall be made.
In all cases, payments to the Portfolio will be made in cash, by a certified
check or a treasurer's or cashier's check of a bank, by effective bank wire
transfer through the Federal Reserve Wire System or, if appropriate, outside of
the Federal Reserve Wire System and subsequent credit to the Fund's Custodian
account, or, in case of delivery through a stock clearing company, by book-entry
credit by the stock clearing company in accordance with the then current street
custom, or such other form of payment as may be mutually agreed on by the
parties, in all such cases collected funds to be promptly credited to the Fund.
Section 2.3 Registration of Securities. Domestic securities held by the
Custodian (other than bearer securities) shall be registered in the name of a
Portfolio or in the name of any nominee of a Fund on behalf of a Portfolio or of
any nominee of the Custodian which nominee shall be assigned exclusively to a
Portfolio, unless a 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 2.8 or in the name or nominee name of any sub-
custodian appointed pursuant to Section 1. All securities accepted by the
Custodian on behalf of a Portfolio under the terms of this Agreement shall be in
street name or other good delivery form. If, however, a Fund directs the
Custodian to maintain securities in street name, the Custodian shall utilize its
best efforts only to timely collect income due the Fund on such securities and
to notify the Fund on a best efforts basis only of relevant corporate actions
including, without limitation, pendency of calls, maturities, tender or exchange
offers.
Section 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 each Fund, subject only to draft or order by the Custodian acting
pursuant to the terms of this Agreement, and shall hold in such account or
accounts, subject to the provisions hereof, all cash received by it from or for
the account of the 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 as it may in its discretion deem necessary or desirable; provided,
however, that every such bank or trust company shall be qualified to act as a
custodian under the 1940 Act and that each such bank or trust company and the
funds to be deposited with each such bank or trust company shall on behalf of
each applicable Portfolio 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.
Section 2.5 Sale of Shares and Availability of Federal Funds. Upon
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mutual agreement between any Fund on behalf of each applicable Portfolio and the
Custodian, the Custodian will, upon the receipt of Proper Instructions from such
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.
Section 2.6 Collection of Income. Except with respect to Portfolio
property released and delivered pursuant to Section 2.2(15) or purchased
pursuant to Section 2.7(7), and subject to the provisions of Section 2.3, the
Custodian shall collect on a timely basis all income and other payments with
respect to registered domestic 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 bearer domestic 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 Portfolios custodian account. Without
limiting the generality of the foregoing, the Custodian shall detach and present
for payment all coupons and other income items requiring presentation as and
when they become due and shall collect interest when due on securities held
hereunder. Income due each Portfolio on securities loaned pursuant to the
provisions of Section 2.2 (10) shall be the responsibility of the applicable
Fund. The Custodian will have no duty or responsibility in connection therewith,
other than to provide the Fund with such information or data as may be necessary
to assist the Fund in arranging for the timely delivery to the Custodian of the
income to which the Portfolio is properly entitled.
Section 2.7 Payment of Fund Monies. Upon receipt of Proper Instructions
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 2.9 hereof; (c) in the case of repurchase
agreements entered into between the Fund on behalf of the Portfolio and the
Custodian, or another bank, or a broker-dealer which is a member of NASD, (i)
against delivery of the securities either in certificate form or through an
entry crediting the Custodians 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 (d) 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 herein;
2) In connection with conversion, exchange or surrender of securities
owned by the Portfolio as set forth in Section 2.2 hereof;
3) For the redemption or repurchase of Shares issued as set forth in
Section 5 hereof;
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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, management, accounting, transfer agent and legal
fees, and operating expenses of the Fund whether or not such expenses are to be
in whole or part capitalized or treated as deferred expenses;
5) For the payment of any dividends on Shares declared pursuant to the
governing documents of the Fund;
6) For payment of the amount of dividends received in respect of
securities sold short; and
7) Upon the purchase of investments, and prior to or without receipt
thereof, but only as set forth in Proper Instructions (such payment in advance
of delivery, along with delivery in advance of payment made in accordance with
Section 2.2(15), as applicable, shall also be referred to herein as a "Free
Trade"); and
8) For any other proper purpose, but only upon receipt of Proper
Instructions from the Fund on behalf of the Portfolio specifying the amount of
such payment, and naming the person or persons to whom such payment is to be
made.
Section 2.8 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 to act as a
custodian, as its agent to carry out such of the provisions of this Section 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.
Section 2.9 Deposit of Fund Assets in U.S. Securities Systems. The
Custodian may deposit and/or maintain securities owned by a Portfolio in a U.S.
Securities System subject to the following provisions:
1) The Custodian may keep securities of the Portfolio in a U.S.
Securities System provided that such securities are represented in an account of
the Custodian in the U.S. Securities System (the "U.S. Securities System
Account") which account shall not include any assets of the Custodian other than
assets held as a fiduciary, custodian or otherwise for customers;
2) The records of the Custodian with respect to securities of the
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 securities purchased for the account of
the Portfolio 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 upon (i) 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 (ii) 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
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sheets reflecting each days transactions in the U.S. Securities System for the
account of the Portfolio;
4) The Custodian shall provide the Fund with any report obtained by the
Custodian on the U.S. Securities Systems accounting system, internal accounting
control and procedures for safeguarding securities deposited in the U.S.
Securities System;
5) Anything to the contrary in this Agreement notwithstanding, the
Custodian shall be liable to the Fund for the benefit of the Portfolio for any
loss or damage to the Portfolio, including reasonable attorneys fees, resulting
from use of the U.S. Securities System by reason of any negligence, misfeasance
or misconduct of the Custodian or any of its agents or of any of its or their
employees or from failure of the Custodian or any such agent to enforce
effectively such rights as it may have against the 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.
Section 2.10 Segregated Account. The Custodian shall upon receipt of
Proper Instructions 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 an account by the Custodian
pursuant to Section 2.9 hereof, (i) in accordance with the provisions of any
agreement among the applicable 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
and of any registered national securities exchange (or the CFTC or any
registered 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 or government securities in
connection with options purchased, sold or written by the Portfolio or commodity
futures contracts or options thereon purchased or sold by the Portfolio, (iii)
for the purposes of compliance by the Portfolio with the procedures required by
Investment Company Act Release No. 10666, or any subsequent release of the SEC,
or interpretative opinion of the staff of the SEC, relating to the maintenance
of segregated accounts by registered investment companies, and (iv) for other
purposes, upon receipt of Proper Instructions from the Fund on behalf of the
applicable Portfolio.
Section 2.11 Ownership Certificates for Tax Purposes. The Custodian
shall execute ownership and other certificates and affidavits for all federal
and state tax purposes in connection with receipt of income or other payments
with respect to domestic securities of each Portfolio held by it and in
connection with transfers of securities.
Section 2.12 Proxies. Except with respect to Portfolio property released
and delivered pursuant to Section 2.2(15), or purchased pursuant to Section
2.7(7), the Custodian shall, with respect to the domestic securities held
hereunder, promptly deliver to the Portfolio such proxies, all proxy soliciting
materials and all notices relating to such securities.
Section 2.13 Communications Relating to Portfolio Securities. Except
with respect to Portfolio property released and delivered pursuant to Section
2.2(15), or purchased pursuant to Section 2.7(7), and subject to the provisions
of Section 2.3, the Custodian shall transmit promptly to the applicable Fund for
each Portfolio all written information (including, without limitation, pendency
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of calls and maturities of domestic securities and expirations of rights in
connection therewith and notices of exercise of call and put options written by
the Fund on behalf of the Portfolio and the maturity of futures contracts
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, the Custodian shall transmit promptly to the Portfolio all written
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 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 three business days prior to the
date on which the Custodian is to take such action.
Section 3. Rules 17f-5 and 17f-7
Section 3.1 Definitions. Capitalized terms in this Section 3 shall have
the following meanings:
"Country Risk" means all factors reasonably related to the systemic risk of
holding Foreign Assets in a particular country including, but not limited to,
such countrys political environment, economic and financial infrastructure
(including any Eligible Securities Depository operating in the country),
prevailing or developing custody and settlement practices, and laws and
regulations applicable to the safekeeping and recovery of Foreign Assets held in
custody in that country.
"Eligible Foreign Custodian" has the meaning set forth in section (a)(1) of Rule
17f-5, including a majority-owned or indirect subsidiary of a U.S. Bank (as
defined in Rule 17f-5), a bank holding company meeting the requirements of an
Eligible Foreign Custodian (as set forth in Rule 17f-5 or by other appropriate
action of the U.S. Securities and Exchange Commission (the "SEC")), or a foreign
branch of a Bank (as defined in Section 2(a)(5) of the 0000 Xxx) meeting the
requirements of a custodian under Section 17(f) of the 1940 Act; the term does
not include any Eligible Securities Depository.
"Eligible Securities Depository" has the meaning set forth in section (b)(1) of
Rule 17f-7.
"Foreign Assets" means any of the Portfolios investments (including foreign
currencies) for which the primary market is outside the United States and such
cash and cash equivalents as are reasonably necessary to effect the Portfolios
transactions in such investments.
"Foreign Custody Manager" has the meaning set forth in section (a)(2) of Rule
17f-5.
Section 3.2. The Custodian as Foreign Custody Manager.
3.2.1 Delegation to the Custodian as Foreign Custody Manager. The
Fund, by resolution adopted by the Board, hereby delegates to the Custodian,
subject to Section (b) of Rule 17f-5, the responsibilities set forth in this
Section 3.2 with respect to Foreign Assets of the Portfolios held outside the
United States, and the Custodian hereby accepts such delegation as Foreign
Custody Manager with respect to the Portfolios.
3.2.2 Countries Covered. The Foreign Custody Manager shall be
responsible for performing the delegated responsibilities defined below only
with respect to the countries and custody arrangements for each such country
listed on Schedule A to this Contract, which list of countries may be amended
from time to time by the Fund with the agreement of the Foreign Custody Manager.
The Foreign Custody Manager shall list on Schedule A the Eligible Foreign
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Custodians selected by the Foreign Custody Manager to maintain the assets of the
Portfolios, which list of Eligible Foreign Custodians may be amended from time
to time in the sole discretion of the Foreign Custody Manager. The Foreign
Custody Manager will provide amended versions of Schedule A in accordance with
Section 3.2.5 hereof.
Upon the receipt by the Foreign Custody Manager of Proper Instructions to open
an account or to place or maintain Foreign Assets in a country listed on
Schedule A, and the fulfillment by the Fund, on behalf of the Portfolios, of the
applicable account opening requirements for such country, the Foreign Custody
Manager shall be deemed to have been delegated by the Board on behalf of the
Portfolios responsibility as Foreign Custody Manager with respect to that
country and to have accepted such delegation. Execution of this Amendment by the
Fund shall be deemed to be a Proper Instruction to open an account, or to place
or maintain Foreign Assets, in each country listed on Schedule A in which the
Custodian has previously placed or currently maintains Foreign Assets pursuant
to the terms of the Contract. Following the receipt of Proper Instructions
directing the Foreign Custody Manager to close the account of a Portfolio with
the Eligible Foreign Custodian selected by the Foreign Custody Manager in a
designated country, the delegation by the Board on behalf of the Portfolios to
the Custodian as Foreign Custody Manager for that country shall be deemed to
have been withdrawn and the Custodian shall immediately cease to be the Foreign
Custody Manager of the Portfolios with respect to that country.
The Foreign Custody Manager may withdraw its acceptance of delegated
responsibilities with respect to a designated country upon written notice to the
Fund. Thirty days (or such longer period to which the parties agree in writing)
after receipt of any such notice by the Fund, the Custodian shall have no
further responsibility as Foreign Custody Manager to the Fund with respect to
the country as to which the Custodian's acceptance of delegation is withdrawn.
3.2.3 Scope of Delegated Responsibilities:
(a) Selection of Eligible Foreign Custodians. Subject to the provisions
of this Section 3.2, the Foreign Custody Manager may place and maintain the
Foreign Assets in the care of the Eligible Foreign Custodian selected by the
Foreign Custody Manager in each country listed on Schedule A, as amended from
time to time. In performing its delegated responsibilities as Foreign Custody
Manager to place or maintain Foreign Assets with an Eligible Foreign Custodian,
the Foreign Custody Manager shall determine that the Foreign Assets will be
subject to reasonable care, based on the standards applicable to custodians in
the country in which the Foreign Assets will be held by that Eligible Foreign
Custodian, after considering all factors relevant to the safekeeping of such
assets, including, without limitation the factors specified in Rule 17f-5(c)(1).
(b) Contracts With Eligible Foreign Custodians. The Foreign Custody
Manager shall determine that the contract governing the foreign custody
arrangements with each Eligible Foreign Custodian selected by the Foreign
Custody Manager will satisfy the requirements of Rule 17f-5(c)(2).
(c) Monitoring. In each case in which the Foreign Custody Manager
maintains Foreign Assets with an Eligible Foreign Custodian selected by the
Foreign Custody Manager, the Foreign Custody Manager shall establish a system to
monitor (i) the appropriateness of maintaining the Foreign Assets with such
Eligible Foreign Custodian and (ii) the contract governing the custody
arrangements established by the Foreign Custody Manager with the Eligible
Foreign Custodian. In the event the Foreign Custody Manager determines that the
custody arrangements with an Eligible Foreign Custodian it has selected are no
longer appropriate, the Foreign Custody Manager shall notify the Board in
accordance with Section 3.2.5 hereunder.
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3.2.4 Guidelines for the Exercise of Delegated Authority. For
purposes of this Section 3.2, the Board shall be deemed to have considered and
determined to accept such Country Risk as is incurred by placing and maintaining
the Foreign Assets in each country for which the Custodian is serving as Foreign
Custody Manager of the Portfolios.
3.2.5 Reporting Requirements. The Foreign Custody Manager shall
report the withdrawal of the Foreign Assets from an Eligible Foreign Custodian
and the placement of such Foreign Assets with another Eligible Foreign Custodian
by providing to the Board an amended Schedule A at the end of the calendar
quarter in which an amendment to such Schedule has occurred. The Foreign Custody
Manager shall make written reports notifying the Board of any other material
change in the foreign custody arrangements of the Portfolios described in this
Section 3.2 after the occurrence of the material change. Upon reasonable request
by the Board the Foreign Custody Manager shall provide to the Board a comfort
letter similar to that set forth on Exhibit 1 attached hereto.
3.2.6 Standard of Care as Foreign Custody Manager of a Portfolio.
In performing the responsibilities delegated to it, the Foreign Custody Manager
agrees to exercise reasonable care, prudence and diligence such as a person
having responsibility for the safekeeping of assets of management investment
companies registered under the 1940 Act would exercise.
3.2.7 Representations with Respect to Rule 17f-5. The Foreign
Custody Manager represents to the Fund that it is a U.S. Bank as defined in
section (a)(7) of Rule 17f-5. The Fund represents to the Custodian that the
Board has determined that it is reasonable for the Board to rely on the
Custodian to perform the responsibilities delegated pursuant to this Contract to
the Custodian as the Foreign Custody Manager of the Portfolios.
3.2.8 Effective Date and Termination of the Custodian as Foreign
Custody Manager. The Boards delegation to the Custodian as Foreign Custody
Manager of the Portfolios shall be effective as of the date hereof and shall
remain in effect until terminated at any time, without penalty, by written
notice from the terminating party to the non-terminating party. Termination will
become effective thirty (30) days after receipt by the non-terminating party of
such notice. The provisions of Section 3.2.2 hereof shall govern the delegation
to and termination of the Custodian as Foreign Custody Manager of the Portfolios
with respect to designated countries.
Section 3.3 Eligible Securities Depositories.
3.3.1 Analysis and Monitoring. The Custodian shall (a) provide the
Fund (or its duly-authorized investment manager or investment adviser) with an
analysis of the custody risks associated with maintaining assets with the
Eligible Securities Depositories set forth on Schedule B hereto in accordance
with section (a)(1)(i)(A) of Rule 17f-7, and (b) monitor such risks on a
continuing basis, and promptly notify the Fund (or its duly-authorized
investment manager or investment adviser) of any material change in such risks,
in accordance with section (a)(1)(i)(B) of Rule 17f-7.
3.3.2 Standard of Care. The Custodian agrees to exercise
reasonable care, prudence and diligence in performing the duties set forth in
Section 3.3.1.
Section 4. Duties of the Custodian with Respect to Property of the
Portfolios Held Outside the United States.
Section 4.1 Definitions. Capitalized terms in this Section 4 shall have
the following meanings:
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"Foreign Securities System" means an Eligible Securities Depository listed on
Schedule B hereto.
"Foreign Sub-Custodian" means a foreign banking institution serving as an
Eligible Foreign Custodian.
Section 4.2. Holding Securities. The Custodian shall identify on its
books as belonging to the Portfolios the foreign securities held by each Foreign
Sub-Custodian or Foreign Securities System. The Custodian may hold foreign
securities for all of its customers, including the Portfolios, with any Foreign
Sub-Custodian in an 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 foreign securities of the Portfolios which are
maintained in such account shall identify those securities as belonging to the
Portfolios and (ii), to the extent permitted and customary in the market in
which the account is maintained, the Custodian shall require that securities so
held by the Foreign Sub-Custodian be held separately from any assets of such
Foreign Sub-Custodian or of other customers of such Foreign Sub-Custodian.
Section 4.3. Foreign Securities Systems. Foreign securities shall be
maintained in a Foreign Securities System in a designated country through
arrangements implemented by the Custodian or a Foreign Sub-Custodian, as
applicable, in such country.
Section 4.4. Transactions in Foreign Custody Account.
4.4.1. Delivery of Foreign Assets. The Custodian or a Foreign Sub-
Custodian shall release and deliver foreign securities of the Portfolios held by
the Custodian or such Foreign Sub-Custodian, or in a Foreign Securities System
account, only upon receipt of Proper Instructions, which may be continuing
instructions when deemed appropriate by the parties, and only in the following
cases:
(i) upon the sale of such foreign securities for the Portfolio in
accordance with commercially reasonable market practice in the country where
such foreign securities are held or traded, including, without limitation: (A)
delivery against expectation of receiving later payment; or (B) 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;
(ii) in connection with any repurchase agreement related to foreign
securities;
(iii) to the depository agent in connection with tender or other similar
offers for foreign securities of the Portfolios;
(iv) to the issuer thereof or its agent when such foreign securities are
called, redeemed, retired or otherwise become payable;
(v) to the issuer thereof, or its agent, for transfer into the name of
the Custodian (or the name of the respective Foreign Sub-Custodian or of any
nominee of the Custodian or such 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;
(vi) 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 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 Foreign Sub-Custodians own
negligence or willful misconduct;
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(vii) 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;
(viii) in the case of warrants, rights or similar foreign securities, the
surrender thereof in the exercise of such warrants, rights or similar securities
or the surrender of interim receipts or temporary securities for definitive
securities;
(ix) for delivery as security in connection with any borrowing by the
Portfolios requiring a pledge of assets by the Portfolios;
(x) in connection with trading in options and futures contracts,
including delivery as original margin and variation margin;
(xi) in connection with the lending of foreign securities; and
(xii) for any other purpose, but only upon receipt of Proper Instructions
specifying the foreign securities to be delivered and naming the person or
persons to whom delivery of such securities shall be made.
4.4.2. Payment of Portfolio Monies. Upon receipt of Proper
Instructions, which may be continuing instructions when deemed appropriate by
the parties, the Custodian shall pay out, or direct the respective Foreign Sub-
Custodian or the respective Foreign Securities System to pay out, monies of the
applicable Portfolio in the following cases only:
(i) upon the purchase of foreign securities for the Portfolio, unless
otherwise directed by Proper Instructions, by (A) delivering money to the seller
thereof or to a dealer therefor (or an agent for such seller or dealer) against
expectation of receiving later delivery of such foreign securities; or (B) 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;
(ii) in connection with the conversion, exchange or surrender of foreign
securities of the Portfolio;
(iii) for the payment of any expense or liability of the Portfolio,
including but not limited to the following payments: interest, taxes, investment
advisory fees, transfer agency fees, fees under this Contract, legal fees,
accounting fees, and other operating expenses;
(iv) 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;
(v) in connection with trading in options and futures contracts,
including delivery as original margin and variation margin;
(vi) for payment of part or all of the dividends received in respect of
securities sold short;
(vii) in connection with the borrowing or lending of foreign securities;
and
(viii) for any other purpose, but only upon receipt of Proper Instructions
specifying the amount of such payment and naming the person or persons to whom
such payment is to be made.
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4.4.3. Market Conditions. Notwithstanding any provision of this
Contract to the contrary, settlement and payment for Foreign Assets received for
the account of the Portfolios and delivery of Foreign Assets maintained for the
account of the Portfolios may be effected in accordance with the customary
established securities trading or processing practices and procedures in the
country or market in which the transaction occurs, including, without
limitation, delivering Foreign Assets to the purchaser thereof or to a dealer
therefor (or an agent for such purchaser or dealer) with the expectation of
receiving later payment for such Foreign Assets from such purchaser or dealer.
The Custodian shall provide to the Board the information with respect to custody
and settlement practices in countries in which the Custodian employs a Foreign
Sub-Custodian, including without limitation information relating to Foreign
Securities Systems, described on Schedule C hereto at the time or times set
forth on such Schedule, and such other information received by the Custodian as
may be agreed upon by the parties hereto from time to time. The Custodian may
revise Schedule C from time to time, provided that no such revision shall result
in the Board being provided with substantively less information than had been
previously provided hereunder.
Section 4.5. Registration of Foreign Securities. The foreign securities
maintained in the custody of a Foreign Sub-Custodian (other than bearer
securities) shall be registered in the name of the applicable Portfolio or in
the name of the Custodian or in the name of any Foreign Sub-Custodian or in the
name of any nominee of the foregoing, and the Fund on behalf of such Portfolio
agrees to hold any such nominee harmless from any liability as a holder of
record of such foreign securities. The Custodian or a 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.
Section 4.6 Bank Accounts. The Custodian shall identify on its books as
belonging to the Fund cash (including cash denominated in foreign currencies)
deposited with the Custodian. Where the Custodian is unable to maintain, or
market practice does not facilitate the maintenance of, cash on the books of the
Custodian, a bank account or bank accounts shall be opened and maintained
outside the United States on behalf of a Portfolio with a Foreign Sub-Custodian.
All accounts referred to in this Section shall be subject only to draft or order
by the Custodian (or, if applicable, such Foreign Sub-Custodian) acting pursuant
to the terms of this Agreement to hold cash received by or from or for the
account of the Portfolio. Cash maintained on the books of the Custodian
(including its branches, subsidiaries and affiliates), regardless of currency
denomination, is maintained in bank accounts established under, and subject to
the laws of, The Commonwealth of Massachusetts.
Section 4.7 Collection of Income. The Custodian shall use reasonable
commercial efforts to collect all income and other payments with respect to the
Foreign Assets held hereunder to which the Portfolios shall be entitled and
shall credit such income, as collected, to the applicable Portfolio. 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 relating to such measures.
Section 4.8 Shareholder Rights. With respect to the foreign securities
held pursuant to this Section 4, the Custodian will use reasonable commercial
efforts to facilitate the exercise of voting and other shareholder rights,
subject always to the laws, regulations and practical constraints that may exist
in the country where such securities are issued. The Fund acknowledges that
local conditions, including lack of regulation, onerous procedural obligations,
lack of notice and other factors may have the effect of severely limiting the
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ability of the Fund to exercise shareholder rights.
Section 4.9. Communications Relating to Foreign Securities. The
Custodian shall transmit promptly to the Fund written information with respect
to materials received by the Custodian via the Foreign Sub-Custodians from
issuers of the foreign securities being held for the account of the Portfolios
(including, without limitation, pendency of calls and maturities of foreign
securities and expirations of rights in connection therewith). With respect to
tender or exchange offers, the Custodian shall transmit promptly to the Fund
written information with respect to materials so received by the Custodian from
issuers of the foreign securities whose tender or exchange is sought or from the
party (or its agents) making the tender or exchange offer. The Custodian shall
not be liable for any untimely exercise of any tender, exchange or other right
or power in connection with foreign securities or other property of the
Portfolios at any time held by it unless (i) the Custodian or the respective
Foreign Sub-Custodian is in actual possession of such foreign securities or
property and (ii) the Custodian 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 the Custodian is to take action to
exercise such right or power.
Section 4.10. Liability of Foreign Sub-Custodians. Each agreement
pursuant to which the Custodian employs a Foreign Sub-Custodian shall, to the
extent possible, require the Foreign Sub-Custodian to exercise reasonable care
in the performance of its duties, and to indemnify, and hold harmless, the
Custodian from and against any loss, damage, cost, expense, liability or claim
arising out of or in connection with the Foreign Sub-Custodians performance of
such obligations. At the Funds election, the Portfolios shall be entitled to be
subrogated to the rights of the Custodian with respect to any claims against a
Foreign Sub-Custodian as a consequence of any such loss, damage, cost, expense,
liability or claim if and to the extent that the Portfolios have not been made
whole for any such loss, damage, cost, expense, liability or claim.
Section 4.11. Liability of Custodian. Except as may arise from the
Custodians own negligence or willful misconduct or the negligence or willful
misconduct of a Sub-Custodian, the Custodian shall be without liability to the
Fund for any loss, liability, claim or expense resulting from or caused by
anything which is part of Country Risk.
The Custodian shall be liable for the acts or omissions of a Foreign Sub-
Custodian to the same extent as set forth with respect to sub-custodians
generally in the Contract and, regardless of whether assets are maintained in
the custody of a Foreign Sub-Custodian or a Foreign Securities System, the
Custodian shall not be liable for any loss, damage, cost, expense, liability or
claim resulting from nationalization, expropriation, currency restrictions, or
acts of war or terrorism, or any other loss where the Sub-Custodian has
otherwise acted with reasonable care.
Section 5. 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 thereof issued or sold from time to time by
the applicable Fund. The Custodian will provide timely notification to such Fund
on behalf of each such 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, 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. In connection with the redemption
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or repurchase of Shares, the Custodian is authorized upon receipt of
instructions from the Transfer Agent to wire funds to or through a commercial
bank designated by the redeeming shareholders. In connection with the redemption
or repurchase of Shares, the Custodian shall honor checks drawn on the Custodian
by a holder of Shares, which checks have been furnished by a Fund to the holder
of Shares, when presented to the Custodian in accordance with such procedures
and controls as are mutually agreed upon from time to time between a Fund and
the Custodian.
Section 6. Proper Instructions
Proper Instructions as used throughout this Agreement means a writing signed or
initialed by one or more person or persons as a 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. Each Fund shall cause all oral instructions to be confirmed in
writing. Proper Instructions may include communications effected directly
between electro-mechanical or electronic devices provided that each Fund and the
Custodian agree to security procedures, including but not limited to, the
security procedures selected by the Fund in the Funds Transfer Addendum attached
hereto. For purposes of this Section, Proper Instructions shall include
instructions received by the Custodian pursuant to any three-party agreement
which requires a segregated asset account in accordance with Section 2.10.
Section 7. Actions Permitted without Express Authority
The Custodian may in its discretion, without express authority from the
applicable 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 its duties under this Agreement,
provided that all such payments shall be accounted for to the Fund on behalf of
the Portfolio;
2) surrender securities 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.
Section 8. Evidence of Authority
The Custodian shall be protected in acting upon any instructions, notice,
request, consent, certificate or other instrument or paper believed by it to be
genuine and to have been properly executed by or on behalf of the applicable
Fund. The Custodian may receive and accept a copy of a resolution certified by
the Secretary or an Assistant Secretary of a Fund ("Certified Resolution") 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 applicable
Board 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.
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Section 9. 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 applicable Board to keep the books of
account of each Portfolio and/or compute the net asset value per Share of the
outstanding Shares or, if directed in writing to do so by the applicable Fund on
behalf of the Portfolio, shall itself keep such books of account and/or compute
such net asset value per Share. If so directed, the Custodian shall also
calculate daily the net income of the Portfolio as described in the Prospectus
and shall advise the Fund and the Transfer Agent daily of the total amounts 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. Each Fund acknowledges that, in
keeping the books of account of the applicable Portfolio and/or making the
calculations described herein with respect to Portfolio property released,
delivered or purchased pursuant to Sections 2.2(15) and 2.6(7) hereof, the
Custodian is authorized and instructed to rely upon information provided to it
by the Fund, the Funds counterparty(ies), or the agents of either of them.
Section 10. Records, Inventory
The Custodian shall with respect to each Portfolio create and maintain all
records relating to its activities and obligations under this Agreement in such
manner as will meet the obligations of the applicable 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 shall at all
times during the regular business hours of the Custodian be open for inspection
by duly authorized officers, employees or agents of the Fund and employees and
agents of the SEC. The Custodian shall, at the applicable Funds request, supply
the Fund with a tabulation of securities owned by each Portfolio and held by the
Custodian and shall, when requested to do so by the Fund and for such
compensation as shall be agreed upon between the Fund and the Custodian, include
certificate numbers in such tabulations. The Fund acknowledges that, in creating
and maintaining the records as set forth herein, with respect to Fund property
released, delivered or purchased pursuant to Sections 2.2(15) and 2.6(7) hereof,
the Custodian is authorized and instructed to rely upon information provided to
it by the applicable Fund, the Funds counterparty(ies), or the agents of either
of them. The Custodian will conduct a periodic inventory of all securities and
other property subject to this Agreement and provide to the Fund a periodic
reconciliation of the vaulted position of each Portfolio to the appraised
position of the Portfolio. The Custodian will promptly report to the Fund the
results of the reconciliation, indicating any shortages or discrepancies
uncovered thereby, and take appropriate action to remedy any such shortages or
discrepancies.
Section 11. Opinion of Funds Independent Accountant
The Custodian shall take all reasonable action, as the applicable Fund on behalf
of each applicable Portfolio may from time to time request, to obtain from year
to year favorable opinions from such Funds independent accountants with respect
to its activities hereunder in connection with the preparation of a Funds Form
N-1A, and Form N-SAR or other annual reports to the SEC and with respect to any
other requirements thereof.
Section 12. Reports to Fund by Independent Public Accountants
The Custodian shall provide the applicable Fund, on behalf of each of the
Portfolios at such times as the Fund may reasonably require, with reports by
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independent public accountants on the accounting system, internal accounting
control and procedures for safeguarding securities, futures contracts and
options on futures contracts, including securities deposited and/or maintained
in a U.S. Securities System or a Foreign Securities System (collectively
referred to herein as "Securities Systems"), relating to the services provided
by the Custodian under this Agreement; 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.
Section 13. Compensation of Custodian
The Custodian shall be entitled to reasonable compensation for its services and
expenses as Custodian, as agreed upon from time to time between each Fund on
behalf of each applicable Portfolio and the Custodian.
Section 14. Responsibility of Custodian
So long as and to the extent that it is in the exercise of reasonable care, the
Custodian shall not be responsible for the title, validity or genuineness of any
property or evidence of title thereto received by it or delivered by it pursuant
to this Agreement and shall be held harmless in acting upon any notice, request,
consent, certificate or other instrument reasonably believed by it to be genuine
and 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 held to the exercise of reasonable
care in carrying out the provisions of this Agreement, but shall be kept
indemnified by and shall be without liability to any Fund for any action taken
or omitted by it in good faith without negligence. It shall be entitled to rely
on and may act upon advice of counsel (who may be counsel for a Fund) on all
matters, and shall be without liability for any action reasonably taken or
omitted pursuant to such advice. The Custodian shall be without liability to any
Fund or Portfolio for any loss, liability, claim or expense resulting from or
caused by anything which is part of Country Risk (as defined in Section 3
hereof), including without limitation nationalization, expropriation, currency
restrictions, or acts of war, revolution, riots or terrorism.
Except as may arise from the Custodians own negligence or willful misconduct or
the negligence or willful misconduct of a sub-custodian or agent, the Custodian
shall be without liability to any 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, the
interruption, suspension or restriction of trading on or the closure of any
securities market, power or other mechanical or technological failures or
interruptions, computer viruses or communications disruptions, work stoppages,
natural disasters, or other similar events or acts; (ii) errors by any Fund or
any Investment Advisor in their instructions to the Custodian provided such
instructions have been in accordance with this Agreement; (iii) the insolvency
of or acts or omissions by a Securities System; (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 Custodians sub-custodian or agent
securities purchased or in the remittance or 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, any Fund, the Custodians 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
17 of 47
Securities System; and (vii) any provision of any present or future law or
regulation or order of the United States of America, or any state thereof, or
any other country, or political subdivision thereof or of any court of competent
jurisdiction.
The Custodian shall be liable for the acts or omissions of a Foreign Sub-
Custodian (as defined in Section 4 hereof) to the same extent as set forth with
respect to sub-custodians generally in this Agreement.
If a 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, such 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
it.
If a Fund requires the Custodian, its affiliates, subsidiaries or agents, to
advance cash or securities for any purpose (including but not limited to
securities settlements, foreign exchange contracts and assumed settlement) or in
the event that the Custodian or its nominee shall incur or be assessed any
taxes, charges, expenses, assessments, claims or liabilities in connection with
the performance of this Agreement, except such as may arise from its or its
nominees 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 should the Fund fail to repay the Custodian promptly,
the Custodian shall be entitled to utilize available cash and to dispose of such
Portfolios assets to the extent necessary to obtain reimbursement.
Each Fund agrees to indemnify and hold the Custodian harmless from and against
any and all costs, expenses, losses, damages, charges, attorneys fees, payments
and liabilities which may be asserted against the Custodian acting in accordance
with any applicable Proper Instruction with respect to Free Trades including,
but not limited to, loss, damage, cost, expense, liability, tax, charge,
assessment or claim resulting from (a) the failure of the Fund to receive income
with respect to purchased investments, (b) the failure of the Fund to recover
amounts invested on maturity of purchased investments, (c) the failure of the
Custodian to respond to or be aware of notices or other corporate communications
with respect to purchased investments, or (d) the Custodians reliance on
information provided by the Fund, the Funds counterparty(ies) or the agents of
either of them with respect to Fund property released, delivered or purchased
pursuant to Sections 2.2(15) and 2.6(7) hereof.
In no event shall the Custodian be liable for indirect, special or consequential
damages.
Section 15. Effective Period, Termination and Amendment
This Agreement shall become effective as of its execution, shall continue in
full force and effect until terminated as hereinafter provided, may be amended
at any time by mutual agreement of all parties hereto and may be terminated with
respect to any party by an instrument in writing delivered or mailed, postage
prepaid to the other parties, such termination to take effect not sooner than
sixty (60) days after the date of such delivery or mailing; provided, however,
that each Fund shall not amend or terminate this Agreement in contravention of
any applicable federal or state regulations, or any provision of the Funds
Declaration of Trust or Articles of Incorporation, as appropriate, and further
provided, that each Fund on behalf of one or more of the Portfolios may at any
time by action of its Board (i) substitute another bank or trust company for the
Custodian by giving notice as described above to the Custodian, or (ii)
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immediately terminate this Agreement in the event of the appointment of a
conservator or receiver for the Custodian by the Comptroller of the Currency or
upon the happening of a like event at the direction of an appropriate regulatory
agency or court of competent jurisdiction.
Termination of this Agreement with respect to any particular Fund or Portfolio
shall in no way affect the rights and duties under this Agreement with respect
to any other Funds or Portfolios.
Upon termination of the Agreement with respect to any Portfolio, such 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 shall likewise reimburse
the Custodian for its costs, expenses and disbursements.
Section 16. Successor Custodian
If a successor custodian for one or more Funds or Portfolios shall be appointed
by the applicable Board, the Custodian shall, upon termination with respect to
the applicable Fund, deliver to such successor custodian at the office of the
Custodian, duly endorsed and in the form for transfer, all securities 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 office 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 $25,000,000, 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 Agreement 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 Agreement.
In the event that securities, funds and other properties remain in the
possession of the Custodian after the date of termination hereof with respect to
any Fund owing to failure of such Fund to procure the Certified Resolution 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 Agreement relating to the duties and obligations of the Custodian shall
remain in full force and effect.
Section 17. Interpretive and Additional Provisions
In connection with the operation of this Agreement, the Custodian and each Fund
on behalf of each of the Portfolios, may from time to time agree on such
provisions interpretive of or in addition to the provisions of this Agreement as
may in their joint opinion be consistent with the general tenor of this
Agreement. Any such interpretive or additional provisions shall be in a writing
signed by all parties and shall be annexed hereto, provided that no such
19 of 47
interpretive or additional provisions shall contravene any applicable federal or
state regulations or any provision of the Funds Declaration of Trust or Articles
of Incorporation, as appropriate. No interpretive or additional provisions made
as provided in the preceding sentence shall be deemed to be an amendment of this
Agreement.
Section 18. Bond
The Custodian will, at all times, maintain a bond issued by a reputable fidelity
insurance company authorized to do business in the place where the bond is
issued. The bond will be issued against larceny and embezzlement, and will cover
each officer and employee of the Custodian who may, singly or jointly with
others, have access to securities or funds of the Fund, directly or through
authority to receive and carry out any certificate instruction, order request,
note or other instrument required or permitted by this Agreement. The Custodian
agrees that it will not cancel terminate or modify the bond so as to affect
adversely the Fund, except after written notice to the Fund not less than 10
days prior to the effective date of such cancellation, termination or
modification. At the request of the Fund, the Custodian will furnish to the Fund
a copy of each such bond and each amendment thereto.
Section 19. Confidentiality
The Custodian agrees to treat all records and other information relative to each
Fund and their prior, present or future shareholders as confidential, and the
Custodian, on behalf of itself and its employees, agrees to keep confidential
all such information except when requested to divulge such information by duly
constituted authorities, or when so requested by a Fund with respect to any
Portfolio. If requested to divulge confidential information with respect to a
Portfolio to anyone other than persons normally authorized by the applicable
Fund to receive information, such as the Fund's auditors or attorneys, the
Custodian will not release the information until it notifies the Fund in writing
and receives approval in writing from the Fund, unless required by law to do
otherwise. Approval by the Fund will not be unreasonably withheld and may not be
withheld where the Custodian may be exposed to civil or criminal contempt
proceedings for failure to comply.
Section 20. Exemption from Liens
Except as provided in Section 14 of this Agreement, the securities and other
assets held by the Custodian for a Portfolio will be subject to no lien or
charge of any kind in favor of the Custodian or any person claiming through the
Custodian, but nothing herein will be deemed to deprive the Custodian of its
right to invoke any and all remedies available at law or equity to collect
amounts due it under this Agreement. Neither the Custodian nor any subcustodian
appointed pursuant to Section 1of this Agreement will have any power or
authority to assign, hypothecate, pledge or otherwise dispose of any securities
held by it for the Portfolio, except upon the direction of the applicable Fund,
duly given as herein provided, and only for the account of the Portfolio.
Section 21. Trustees/Directors
Neither the Trustees nor the Directors of the applicable Fund will be personally
liable under this Agreement.
Section 22. Massachusetts Business Trust
With respect to any Fund, which is a party to this Agreement and which is
organized as a business trust under the laws of the Commonwealth of
Massachusetts, the term Fund means and refers to the trustees serving under the
applicable incorporation document. It is expressly agreed that the obligations
20 of 47
of any such Fund under this Agreement will not be binding on any of the
trustees, directors, Portfolio shareholders, nominees, officers, agents or
employees of such Fund personally, but bind only the property of such Fund's
Portfolios.
Section 23. Additional Portfolios
In the event that any Fund establishes one or more series of Shares in addition
to the Portfolios listed on Appendix A attached hereto with respect to which it
desires to have the Custodian render services as custodian under the terms
hereof and the Custodian wishes to provide such services, the parties will
execute a revised Exhibit A. Upon execution thereof, such series of Shares shall
become a Portfolio hereunder.
Section 24. Additional Funds
In the event that any entity in addition to those Funds listed on Appendix A
attached hereto desires to have the Custodian render services as custodian under
the terms hereof and the Custodian wishes to provide such services, the parties
will execute a revised Exhibit A. Upon execution thereof, such entity shall
become a Fund hereunder and be bound by all terms, conditions and provisions
hereof including, without limitation, the representations and warranties set
forth in Section 25 below.
Section 25. The Parties
All references herein to the Fund are to each of the funds listed on Appendix A
hereto individually, as if this Agreement were between such individual Fund and
the Custodian. In the case of a series fund or trust, all references to the
Portfolio are to the individual series or portfolio of such fund or trust, or to
such fund or trust on behalf of the individual series or portfolio, as
appropriate. Any reference in this Agreement to the parties shall mean the
Custodian and such other individual Fund as to which the matter pertains. Each
Fund hereby represents and warrants that (i) it has the requisite power and
authority under applicable laws and its Governing Documents to enter into and
perform this Agreement, (ii) all requisite proceedings have been taken to
authorize it to enter into and perform this Agreement, and (iii) its entrance
into this Agreement shall not cause a material breach or be in material conflict
with any other agreement or obligation of the Fund or any law or regulation
applicable to it.
Section 26. Successors of Parties
This Contract will be binding on and will inure to the benefit of each Fund and
the Custodian and their respective successors.
Section 27. Massachusetts Law to Apply
This Agreement shall be construed and the provisions thereof interpreted under
and in accordance with laws of The Commonwealth of Massachusetts.
Section 28. Prior Agreements
This Agreement supersedes and terminates, as of the date hereof, all prior
Agreements between each Fund on behalf of each of the Portfolios and the
Custodian relating to the custody of each Funds assets.
Section 29. Reproduction of Documents
This Agreement and all schedules, addenda, exhibits, attachments and amendments
hereto may be reproduced by any photographic, photostatic, microfilm,
21 of 47
micro-card, miniature photographic or other similar process. The parties hereto
all/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.
Section 30. Data Access Services Addendum
The Custodian and each Fund agree to be bound by the terms of the Data Access
Services Addendum attached hereto.
Section 31. 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 by any party from time to time.
To any Fund: Xxxxxxx Group Funds
0000 Xxxxxxxxxx Xxxxxx,
Xxxxx 0000X
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxx Xxxxxxxxxxx, CFO
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
To the Custodian: State Street Bank and Trust Company
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx Funds Manager
Telephone: 617-
Telecopy: 617-
Such notice, instruction or other instrument shall be deemed to have been served
in the case of a registered letter at the expiration of five business days after
posting, in the case of cable twenty-four hours after dispatch and, in the case
of telex, immediately on dispatch and if delivered outside normal business hours
it shall be deemed to have been received at the next time after delivery when
normal business hours commence and in the case of cable, telex or telecopy on
the business day after the receipt thereof. Evidence that the notice was
properly addressed, stamped and put into the post shall be conclusive evidence
of posting. Section 32. Representations and Warranties
Each Fund represents and warrants to the Custodian that the applicable Fund
shall not, without the prior written consent of the Custodian, permit the assets
of the applicable Fund to be deemed assets of an employee benefit plan which is
subject to the Employee Retirement Income Security Act of 1974, as amended
("ERISA"). Each Fund acknowledges and agrees that the Custodian shall not grant
its consent in either of the foregoing circumstances unless and until the
applicable Fund has (a) entered into an amendment to this Contract and (b)
executed and delivered to the Custodian an Indemnity Agreement, each in form and
substance satisfactory to the Custodian. If for any reason the applicable Fund
breaches or otherwise fails to comply with the provisions of this Section 32,
this Contract may be, with respect to the applicable Fund, terminated
immediately and without prior notice by the Custodian.
Section 33. Shareholder Communications Election
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SEC Rule 14b-2 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 [X] The Custodian is authorized to release the Funds name, address, and
share positions.
NO [_] The Custodian is not authorized to release the Funds name, address,
and share positions.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
23 of 47
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 effective as of December 1, 2000.
Xxxxxxx Group Funds Signature Attested to By:
By: _________________________ By: ____________________
Name: _________________________ Name: ____________________
Title: _________________________ Title: ____________________
State Street Bank and Trust Company Signature Attested to By:
By: _________________________ By: ____________________
Name: Xxxxxx X. Xxxxx Name: Xxxxxxx X. XxXxxxxx
Title: Vice Chairman & Title: VP & Assoc. Counsel
Chief Operating Officer
24 of 47
Appendix A
Amended and Restated Custodian Agreement
Xxxxxxx Social Investment Fund
Money Market Portfolio
Balanced Portfolio (formerly, Managed Growth Portfolio)
Bond Portfolio
Equity Portfolio
Managed Index Portfolio (renamed Enhanced Equity Portfolio effective 12/29/00)
Technology Portfolio
The Xxxxxxx Fund
Xxxxxxx Income Fund
Xxxxxxx New Vision Small Cap Fund
First Variable Rate Fund for Government Income
Xxxxxxx First Government Money Market Fund
Calvert Cash Reserves
Institutional Prime Fund
Xxxxxxx New World Fund, Inc.
Xxxxxxx New Africa Fund
Xxxxxxx Municipal Fund, Inc.
Xxxxxxx National Municipal Intermediate Fund
Xxxxxxx California Municipal Intermediate Fund
Xxxxxxx Tax-Free Reserves
Money Market Portfolio
Limited Term Portfolio
Long Term Portfolio
California Money Market Portfolio
Vermont Municipal
Xxxxxxx World Values Fund, Inc.
International Equity Fund
Xxxxxxx Capital Accumulation Fund
Xxxxxxx Social Index Series, Inc.
Xxxxxxx Social Index Fund
Xxxxxxx Impact Fund, Inc.
Xxxxxxx Large Cap Growth Fund
Xxxxxxx South Africa Fund
25 of 47
Xxxxxxx Variable Series, Inc.
Social Money Market Portfolio
Social Small Cap Growth Portfolio
Social Mid Cap Growth Portfolio
Social International Equity Portfolio
Social Balanced Portfolio
Ameritas Income and Growth Portfolio
Ameritas Growth Portfolio
Ameritas Small Capitalization Portfolio
Ameritas MidCap Growth Portfolio
Ameritas Emerging Growth Portfolio
Ameritas Research Portfolio
Ameritas Growth With Income Portfolio
Ameritas Index 500 Portfolio
Ameritas Money Market Portfolio
Ameritas Select Portfolio
Ameritas Microcap Portfolio
For The Above Fund Parties State Street Bank and Trust Company
By: ____________________ By: ____________________
Name: ____________________ Name: Xxxxxx X. Xxxxx
Title: ____________________ Title: Vice Chairman &
Chief Operating Officer
Date: December 1, 2000
26 of 47
EXHIBIT 1
Sample Comfort Letter
[date]
To the Board of Directors of the Xxxxxxx Group Funds:
State Street is pleased to provide you with confirmation of the following
information in relation to its role as the Foreign Custody Manager of your
fund's assets overseas.
In the exercise of the duties delegated to it as Foreign Custody Manager, State
Street has exercised the care, prudence and diligence required by the terms of
Investment Company Act Rule 00x-0. Xxxxx Xxxxxx believes that all subcustodians
within its network qualify as "eligible foreign custodians" within the meaning
of Rule 17f-5 as amended, and it closely monitors its Global Custody Network
through regular on-site visits and ongoing internal review. Documentation
detailing the steps State Street undertakes in the management of your fund's
foreign custody arrangements and the exercise of the duties delegated to it, is
provided in State Street's annual Compliance Materials.
State Street is committed to ensuring that your fund's assets are at all times
subject to at least the level of care and protection generally available in the
relevant market, and its subcustodian agreements contain provisions that meet or
exceed the standards required by Rule 00x-0. Xxxxx Xxxxxx also requires all its
subcustodians to adhere to its stringent operating requirements. A complete list
of all the subcustodians which presently make up our Global Custody Network is
attached as Schedule A. A list of depositories which are presently in operation
in the markets included in our Global Custody Network is attached as Schedule B.
Finally, we are not aware of any material changes in your fund's foreign custody
arrangements except for those material changes of which we have previously
provided you and your fund with written notice.
Sincerely,
Xxx Xxxxx Xxxxxxx
Compliance Manager
27 of 00
XXXXX XXXXXX SCHEDULE A
GLOBAL CUSTODY NETWORK
SUBCUSTODIANS
Country Subcustodian
Argentina Citibank, N.A.
Australia Westpac Banking Corporation
Austria Erste Bank der sterreichischen
Sparkassen AG
Bahrain HSBC Bank Middle East
(as delegate of The Hongkong and
Shanghai Banking Corporation Limited)
Bangladesh Standard Chartered Bank
Belgium Fortis Bank nv-sa
Bermuda The Bank of Bermuda Limited
Bolivia Citibank, N. A.
Botswana Barclays Bank of Botswana Limited
Brazil Citibank, N.A.
Bulgaria ING Bank N.V.
Canada State Street Trust Company Canada
Chile Citibank, N.A.
People's Republic The Hongkong and Shanghai
of China Banking Corporation Limited,
Shanghai and Shenzhen branches
Colombia Cititrust Colombia S.A. Sociedad Fiduciaria
Costa Rica Banco BCT S.A.
28 of 47
Croatia Privredna Banka Zagreb d.d
Cyprus The Cyprus Popular Bank Ltd.
Czech Republic eskoslovensk Obchodn
Banka, A.S.
Denmark Den Danske Bank
Ecuador Citibank, N.A.
Egypt Egyptian British Bank S.A.E.
(as delegate of The Hongkong
and Shanghai Banking Corporation
Limited)
Estonia Hansabank
Finland Xxxxxx Bank Plc.
France BNP Paribas, S.A.
Germany Dresdner Bank AG
Ghana Barclays Bank of Ghana Limited
Greece National Bank of Greece S.A.
Hong Kong Standard Chartered Bank
Hungary Citibank Rt.
Iceland Icebank Ltd.
India Deutsche Bank AG
The Hongkong and Shanghai
Banking Corporation Limited
Indonesia Standard Chartered Bank
Ireland Bank of Ireland
Israel Bank Hapoalim B.M.
Italy BNP Paribas, Italian Branch
Ivory Coast Soci t G n rale de Banques
en C te d'Ivoire
Jamaica Scotiabank Jamaica Trust and Merchant
Bank Ltd.
Japan The Fuji Bank, Limited
The Sumitomo Bank, Limited
Jordan HSBC Bank Middle East
(as delegate of The Hongkong and
Shanghai Banking Corporation Limited)
29 of 47
Kazakhstan HSBC Bank Kazakhstan
Kenya Barclays Bank of Kenya Limited
Republic of Korea The Hongkong and Shanghai Banking
Corporation Limited
Latvia A/s Hansabanka
Lebanon HSBC Bank Middle East
(as delegate of The Hongkong and
Shanghai Banking Corporation Limited)
Lithuania Vilniaus Bankas AB
Malaysia Standard Chartered Bank Malaysia Berhad
Mauritius The Hongkong and Shanghai
Banking Corporation Limited
Mexico Citibank Mexico, S.A.
Morocco Banque Commerciale du Maroc
Namibia Standard Bank Namibia Limited -
Netherlands Fortis Bank (Nederland) N.V.
New Zealand ANZ Banking Group (New Zealand) Limited
Nigeria Stanbic Merchant Bank Nigeria Limited
Norway Christiania Bank og Kreditkasse ASA
Oman HSBC Bank Middle East
(as delegate of The Hongkong and
Shanghai Banking Corporation Limited)
Pakistan Deutsche Bank AG
Palestine HSBC Bank Middle East
(as delegate of The Hongkong and
Shanghai Banking Corporation Limited)
Panama BankBoston, N.A.
Peru Citibank, N.A.
Philippines Standard Chartered Bank
Poland Citibank (Poland) S.A.
Portugal Banco Comercial Portugu s
Qatar HSBC Bank Middle East
(as delegate of The Hongkong and
Shanghai Banking Corporation Limited)
30 of 47
Romania ING Bank N.V.
Russia Credit Suisse First Boston AO - Moscow
(as delegate of Credit Suisse
First Boston - Zurich)
Singapore The Development Bank of Singapore Limited
Slovak Republic eskoslovensk Obchodn Banka, A.S.
Slovenia Bank Austria Creditanstalt d.d. - Ljubljana
South Africa Standard Bank of South Africa Limited
Spain Banco Santander Central Hispano S.A.
Sri Lanka The Hongkong and Shanghai
Banking Corporation Limited
Swaziland Standard Bank Swaziland Limited
Sweden Skandinaviska Enskilda Banken
Switzerland UBS AG
Taiwan - R.O.C. Central Trust of China
Thailand Standard Chartered Bank
Trinidad & Tobago Republic Bank Limited
Tunisia Banque Internationale Arabe de Tunisie
Turkey Citibank, N.A.
Ukraine ING Bank Ukraine
United Kingdom State Street Bank and Trust Company,
London Branch
Uruguay BankBoston, N.A.
Venezuela Citibank, N.A.
Vietnam The Hongkong and Shanghai
Banking Corporation Limited
Zambia Barclays Bank of Zambia Limited
Zimbabwe Barclays Bank of Zimbabwe Limited
31 of 00
XXXXX XXXXXX SCHEDULE B
GLOBAL CUSTODY NETWORK
DEPOSITORIES OPERATING IN NETWORK MARKETS
Country Depositories
Argentina Caja de Valores S.A.
Australia Austraclear Limited
Reserve Bank Information and
Transfer System
Austria Oesterreichische Kontrollbank AG
(Wertpapiersammelbank Division)
Belgium Caisse Interprofessionnelle de D p ts et
de Virements de Titres, S.A.
Banque Nationale de Belgique
Brazil Companhia Brasileira de Liquida o e Cust dia
Bulgaria Central Depository AD
Bulgarian National Bank
Canada Canadian Depository for Securities Limited
Chile Dep sito Central de Valores S.A.
People's Republic Shanghai Securities Central Clearing &
of China Registration Corporation
Shenzhen Securities Central Clearing Co., Ltd.
Colombia Dep sito Centralizado de Valores
Costa Rica Central de Valores S.A.
32 of 47
Croatia Ministry of Finance
National Bank of Croatia
Sredi nja Depozitarna Agencija d.d.
Czech Republic Stredisko cenn ch pap ru
Czech National Bank
Denmark V rdipapircentralen (Danish Securities Center)
Egypt Misr for Clearing, Settlement, and Depository
Estonia Eesti V rtpaberite Keskdepositoorium
Finland Finnish Central Securities Depository
France Soci t Interprofessionnelle pour la Compensation
des Valeurs Mobili res
Germany Clearstream Banking AG, Frankfurt
Greece Bank of Greece,
System for Monitoring Transactions in
Securities in Book-Entry Form
Apothetirion Titlon AE - Central Securities Depository
Hong Kong Central Clearing and Settlement System
Central Moneymarkets Unit
Hungary K zponti Elsz mol h z s rt kt r
(Budapest) Rt. (KELER)
33 of 47
India National Securities Depository Limited
Central Depository Services India Limited
Reserve Bank of India
Indonesia Bank Indonesia
PT Kustodian Sentral Efek Indonesia
Ireland Central Bank of Ireland
Securities Settlement Office
Israel Tel Aviv Stock Exchange Clearing
House Ltd. (TASE Clearinghouse)
Italy Monte Titoli S.p.A.
Banca d'Italia
Ivory Coast Depositaire Central - Banque de R glement
Jamaica Jamaica Central Securities Depository
Japan Japan Securities Depository Center (JASDEC)
Bank of Japan Net System
Kazakhstan Central Depository of Securities
Kenya Central Bank of Kenya
Republic of Korea Korea Securities Depository
Latvia Latvian Central Depository
34 of 47
Lebanon Custodian and Clearing Center of
Financial Instruments for Lebanon
and the Middle East (Midclear) X.X.X.
Banque du Liban
Lithuania Central Securities Depository of Lithuania
Malaysia Malaysian Central Depository Sdn. Bhd.
Bank Negara Malaysia,
Scripless Securities Trading and Safekeeping System
Mauritius Central Depository and Settlement Co. Ltd.
Bank of Mauritius
Mexico S.D. INDEVAL
(Instituto para el Dep sito de Valores)
Morocco Maroclear
35 of 47
Netherlands Nederlands Centraal Instituut voor
Giraal Effectenverkeer B.V. (NECIGEF)
New Zealand New Zealand Central Securities
Depository Limited
Nigeria Central Securities Clearing System Limited
Norway Verdipapirsentralen (Norwegian Central
Securities Depository)
Oman Muscat Depository & Securities
Registration Company, SAOC
Pakistan Central Depository Company of Pakistan Limited
State Bank of Pakistan
Palestine Clearing Depository and Settlement, a department
of the Palestine Stock Exchange
Peru Caja de Valores y Liquidaciones, Instituci n de
Compensaci n y Liquidaci n de Valores S.A
Philippines Philippine Central Depository, Inc.
Registry of Scripless Securities
(XXXX) of the Bureau of Treasury
Poland National Depository of Securities
(Krajowy Depozyt Papier w Wartos ciowych SA)
Central Treasury Bills Registrar
Portugal Central de Valores Mobili xxxx
Qatar Central Clearing and Registration (CCR), a
department of the Doha Securities Market
Romania National Securities Clearing, Settlement and
Depository Company
Bucharest Stock Exchange Registry Division
National Bank of Romania
Singapore Central Depository (Pte) Limited
Monetary Authority of Singapore
Slovak Republic Stredisko cenn ch papierov
National Bank of Slovakia
Slovenia Klirinsko Depotna Xxxxxx x.x.
South Africa Central Depository Limited
Share Transactions Totally Electronic
(STRATE) Ltd.
Spain Servicio de Compensaci n y
Liquidaci n de Valores, S.A.
Banco de Espa a, Central de Anotaciones en Cuenta
Sri Lanka Central Depository System (Pvt) Limited
Sweden V rdepapperscentralen VPC AB
(Swedish Central Securities Depository)
Switzerland SegaIntersettle AG (SIS)
Taiwan - R.O.C. Taiwan Securities Central Depository Co., Ltd.
Thailand Thailand Securities Depository Company Limited
Tunisia Soci t Tunisienne Interprofessionelle pour la
Compensation et de D p ts des Valeurs Mobili res
Turkey Takas ve Saklama Bankasi A.S. (TAKASBANK)
Central Bank of Turkey
Ukraine National Bank of Ukraine
United Kingdom Central Gilts Office and
Central Moneymarkets Office
Venezuela Banco Central de Venezuela
Zambia XxXX Central Shares Depository Limited
Bank of Zambia
TRANSNATIONAL
Euroclear
Clearstream Banking AG
36 of 47
SCHEDULE C
MARKET INFORMATION
Publication/Type of Information Brief Description
--------------------------------- ------------------
(Frequency)
The Guide to Custody in World Markets An overview of safekeeping and
settlement practices and
(annually) procedures in each
market in which State Street Bank
and Trust Company offers
custodial services.
Global Custody Network Review Information relating to the
operating history and structure
of (annually) depositories and
subcustodians located in the
markets in which State Street
Bank and Trust Company offers
custodial services, including
transnational depositories.
Global Legal Survey With respect to each market in
which State Street Bank and
(annually) Trust Company offers
custodial services, opinions
relating to whether local law
restricts (i) access of a fund's
independent public accountants to
books and records of a Foreign
Sub-Custodian or Foreign
Securities System, (ii) the
Fund's ability to recover in the
event of bankruptcy or insolvency
of a Foreign Sub-Custodian or
Foreign Securities System, (iii)
the Fund's ability to recover in
the event of a loss by a Foreign
Sub-Custodian or Foreign
Securities System, and (iv) the
ability of a foreign investor to
convert cash and cash equivalents
to U.S. dollars.
Subcustodian Agreements Copies of the subcustodian
contracts State Street Bank and
(annually) Trust Company has
entered into with each
subcustodian in the markets in
which State Street Bank and Trust
Company offers subcustody
services to its US mutual fund
clients.
Network Bulletins (weekly): Developments of interest to
investors in the markets in which
State Street Bank and Trust
Company offers custodial
services.
Foreign Custody Advisories (as necessary): With respect to markets in which
State Street Bank and Trust
Company offers custodial services
which exhibit special custody
risks, developments which may
impact State Street's ability to
deliver expected levels of
service.
37 of 47
REMOTE ACCESS SERVICES ADDENDUM TO CUSTODIAN AGREEMENT
ADDENDUM to that certain Custodian Agreement dated as of December 1, 2000
(the "Custodian Agreement") between The Xxxxxxx Group Funds as listed on Exhibit
A thereto( as such Appendix A may be amended from time to time) (the "Customer")
and State Street Bank and Trust Company.
State Street Bank and Trust Company, its subsidiaries and affiliates
(collectively, "State Street") has developed and utilized proprietary accounting
and other systems in conjunction with the custodian services which State Street
provides to the Customer. In this regard, State Street maintains certain
information in databases under its control and ownership which it makes
available to its customers (the "Remote Access Services").
The Services
38 of 00
Xxxxx Xxxxxx agrees to provide the Customer, and its designated investment
advisors, consultants or other third parties authorized by State Street who
agree to abide by the terms of this Addendum ("Authorized Designees") with
access to In~SightSM as described in Exhibit A or such other systems as may be
offered from time to time (the "System") on a remote basis.
Security Procedures
The Customer agrees to comply, and to cause its Authorized Designees to comply,
with remote 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 and access to the Remote Access Services. The Customer agrees to advise
State Street immediately in the event that it learns or has reason to believe
that any person to whom it has given access to the System or the Remote Access
Services has violated or intends to violate the terms of this Addendum and the
Customer will cooperate with State Street in seeking injunctive or other
equitable relief. The Customer agrees to discontinue use of the System and
Remote Access Services, if requested, for any security reasons cited by State
Street.
Fees
Fees and charges for the use of the System and the Remote Access Services and
related payment terms shall be as set forth in the custody fee schedule in
effect from time to time between the parties (the "Fee Schedule"). The Customer
shall be responsible for any tariffs, duties or taxes imposed or levied by any
government or governmental agency by reason of the transactions contemplated by
this Addendum, including, without limitation, federal, state and local taxes,
use, value added and personal property taxes (other than income, franchise or
similar taxes which may be imposed or assessed against State Street). Any
claimed exemption from such tariffs, duties or taxes shall be supported by
proper documentary evidence delivered to State Street.
Proprietary Information/Injunctive Relief
The System and Remote Access Services described herein and the databases,
computer programs, screen formats, report formats, interactive design
techniques, formulae, processes, systems, software, know-how, algorithms,
programs, training aids, printed materials, methods, books, records, files,
documentation and other information made available to the Customer by State
Street as part of the Remote Access Services and through the use of the System
and all copyrights, patents, trade secrets and other proprietary rights of State
Street related thereto are the exclusive, valuable and confidential property of
State Street and its relevant licensors (the "Proprietary Information"). The
Customer agrees on behalf of itself and its Authorized Designees to keep the
Proprietary Information confidential and to limit access to its employees and
Authorized Designees (under a similar duty of confidentiality) who require
access to the System for the purposes intended. The foregoing shall not apply to
Proprietary Information in the public domain or required by law to be made
public.
The Customer agrees to use the Remote Access Services only in connection with
the proper purposes of this Addendum. The Customer will not, and will cause its
employees and Authorized Designees not to, (i) permit any third party to use the
System or the Remote Access Services, (ii) sell, rent, license or otherwise use
the System or the Remote Access Services in the operation of a service bureau or
for any purpose other than as expressly authorized under this Addendum, (iii)
use the System or the Remote Access Services for any fund, trust or other
investment vehicle without the prior written consent of State Street, or (iv)
allow or cause any information transmitted from State Street's databases,
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including data from third party sources, available through use of the System or
the Remote Access Services, to be redistributed or retransmitted for other than
use for or on behalf of the Customer, as State Street's customer.
The Customer agrees that neither it nor its Authorized Designees will modify the
System in any way, enhance or otherwise create derivative works based upon the
System, nor will the Customer or its Authorized Designees reverse engineer,
decompile or otherwise attempt to secure the source code for all or any part of
the System.
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 and that 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.
Limited Warranties
State Street represents and warrants that it is the owner of and has the right
to grant access to the System and to provide the Remote Access Services
contemplated herein. Because of the nature of computer information technology
and the necessity of relying upon third party sources, and data and pricing
information obtained from third parties, the System and Remote Access Services
are provided "AS IS", and the Customer and its Authorized Designees shall be
solely responsible for the investment decisions, regulatory reports and
statements produced using the Remote Access Services. State Street and its
relevant licensors will not be liable to the Customer or its Authorized
Designees for any direct or indirect, special, incidental, punitive or
consequential damages arising out of or in any way connected with the System or
the Remote Access Services, nor shall either party be responsible for delays or
nonperformance under this Addendum arising out of any cause or event beyond such
party's control.
State Street will take reasonable steps to ensure that its products (and those
of its third-party suppliers) reflect the available state of the art technology
to offer products that are Year 2000 compliant, including, but not limited to,
century recognition of dates, calculations that correctly compute same century
and multi century formulas and date values, and interface values that reflect
the date issues arising between now and the next one-hundred years, and if any
changes are required, State Street will make the changes to its products at no
cost to you and in a commercially reasonable time frame and will require third-
party suppliers to do likewise. The Customer will do likewise for its systems.
EXCEPT AS EXPRESSLY SET FORTH IN THIS ADDENDUM, STATE STREET FOR ITSELF AND ITS
RELEVANT LICENSORS EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES CONCERNING THE
SYSTEM AND THE SERVICES TO BE RENDERED HEREUNDER, WHETHER EXPRESS OR IMPLIED,
INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTIBILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
Infringement
State Street will defend or, at our option, settle any claim or action brought
against the Customer to the extent that it is based upon an assertion that
access to the System or use of the Remote Access Services by the Customer under
this Addendum constitutes direct infringement of any United States patent or
copyright or misappropriation of a trade secret, provided that the Customer
notifies State Street promptly in writing of any such claim or proceeding and
cooperates with State Street in the defense of such claim or proceeding. Should
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the System or the Remote Access Services or any part thereof become, or in State
Street's opinion be likely to become, the subject of a claim of infringement or
the like under the patent or copyright or trade secret laws of the United
States, State Street shall have the right, at State Street's sole option, to (i)
procure for the Customer the right to continue using the System or the Remote
Access Services, (ii) replace or modify the System or the Remote Access Services
so that the System or the Remote Access Services becomes noninfringing, or (iii)
terminate this Addendum without further obligation.
Termination
Either party to the Custodian Agreement may terminate this Addendum (i) for any
reason by giving the other party at least one-hundred and eighty (180) days'
prior written notice in the case of notice of termination by State Street to the
Customer or thirty (30) 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 Addendum by giving the
other party written notice of termination. This Addendum shall in any event
terminate within ninety (90) days after the termination of the Custodian
Agreement. In the event of termination, the Customer will return to State Street
all copies of documentation and other confidential information in its possession
or in the possession of its Authorized Designees. The foregoing provisions with
respect to confidentiality and infringement will survive termination for a
period of three (3) years.
Miscellaneous
This Addendum and the exhibit hereto constitutes the entire understanding of the
parties to the Custodian Agreement with respect to access to the System and the
Remote Access Services. This Addendum cannot be modified or altered except in a
writing duly executed by each of State Street and the Customer and shall be
governed by and construed in accordance with the laws of The Commonwealth of
Massachusetts.
By its execution of the Custodian Agreement, the Customer, for itself and its
Authorized Designees, accepts the terms of this Addendum
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EXHIBIT A
to
REMOTE ACCESS SERVICES ADDENDUM TO CUSTODIAN AGREEMENT
IN~SIGHTSM
System Product Description
In~SightSM provides information delivery and on-line access to State Street.
In~SightSM allows users a single point of entry into the many views of data
created by the diverse systems and applications. Reports and data from systems
such as Investment Policy MonitorSM, Multicurrency HorizonSM, Securities
Lending, Performance & Analytics can be accessed through In~SightSM. This
Internet-enabled application is designed to run from a Web browser and perform
across low-speed data line or corporate high-speed backbones. In~SightSM also
offers users a flexible toolset, including an ad-hoc query function, a custom
graphics package, a report designer, and a scheduling capability. Data and
reports offered through In~SightSM will continue to increase in direct
proportion with the customer roll out, as it is viewed as the information
delivery system will grow with State Street's customers.
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