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EXHIBIT G
CUSTODY AGREEMENT
BY AND BETWEEN
DELAWARE INVESTMENTS FAMILY OF FUNDS
AND
MELLON BANK, N.A.
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TABLE OF CONTENTS
SECTION PAGE
1. ESTABLISHMENT OF/ADDITIONS TO ACCOUNT...................................1
2. DISTRIBUTIONS...........................................................1
3. AUTHORIZED PARTIES......................................................1
4. AUTHORIZED INSTRUCTIONS.................................................2
5. DIRECTED POWERS OF CUSTODIAN............................................2
6. DISCRETIONARY POWERS OF CUSTODIAN.......................................3
7. DUTIES OF CUSTODIAN.....................................................4
8. CONTRACTUAL INCOME AND SETTLEMENT; MARKET PRACTICE
SETTLEMENTS..........................................................5
9. TAX LAW.................................................................6
10. NON-ACCOUNT ASSETS......................................................6
11. REPORTING AND RECORDKEEPING.............................................6
12. STANDARD OF CARE........................................................8
13. FORCE MAJEURE...........................................................8
14. COMPENSATION AND EXPENSES...............................................9
15. INDEMNIFICATION........................................................10
16. AMENDMENT OR TERMINATION...............................................10
17. GOVERNING LAW AND LEGAL PROCEEDINGS....................................10
18. REPRESENTATIONS........................................................10
19. NECESSARY PARTIES......................................................11
20. EXECUTION IN COUNTERPARTS..............................................11
TAXPAYER IDENTIFICATION NUMBER CERTIFICATION..................................13
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Exhibit G
CUSTODY AGREEMENT
THIS CUSTODY AGREEMENT is effective as of October __, 2000
("Agreement") by and between those registered investment companies listed on
Schedule A hereto (each a "Client") on behalf of certain of their respective
series, as listed on Schedule A (individually and collectively the "Series") and
MELLON BANK, N.A., a national banking association with its principal place of
business at Xxx Xxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000 ("Custodian").
WITNESSETH:
WHEREAS, the Clients and the Custodian desire to establish custody
accounts to provide for the safekeeping and recordkeeping of certain property of
the Clients and their Series;
NOW, THEREFORE, the Clients and the Custodian, each intending to be
legally bound, agree as follows:
1. ESTABLISHMENT OF/ADDITIONS TO ACCOUNT. Client hereby appoints MELLON BANK,
N.A., as Custodian for any property acceptable to the Custodian which the Client
or its Series may deposit to the Custodian's care (each, an "Account"). The
Custodian hereby accepts appointment as custodian and agrees to perform the
duties thereof as hereinafter set forth. Without limitation, "property" shall
include stocks, shares, and other equity interests of every type, bonds,
debentures, notes, mortgages or other obligations for the payment of money, coin
and any certificates, receipts, warrants or other instruments representing
rights to receive, purchase or subscribe for the same or evidencing or
representing any other rights or interests therein and cash in any currency. The
Custodian shall have no responsibility for any property until it in fact is
received by the Custodian or its agents or subcustodians. "Property" as used
herein shall not include any direct interest in real property, leaseholds or
mineral interests.
2. DISTRIBUTIONS. The Custodian shall make distributions or transfers out of an
Account pursuant to Authorized Instructions, as defined below. In making
payments to service providers pursuant to Authorized Instructions, each Client
acknowledges that the Custodian is acting as a paying agent, and not as the
payor, for tax information reporting and withholding purposes.
3. AUTHORIZED PARTIES. The Clients shall furnish the Custodian with a written
list of the names and signatures of all persons authorized to direct the
Custodian on behalf of the Clients under the terms of this Agreement. In
addition, each Client may appoint and remove one or more investment managers
("Investment Manager") for such portion of the appropriate Accounts as the
Client shall designate to the Custodian in writing. The Investment Manager(s)
shall furnish the Custodian with a written list of the names and signatures of
the person or persons who are authorized to represent the Investment
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Manager in dealings with the Custodian. The Custodian shall be entitled to deal
with any person or entity so identified by the Client or Investment Manager
("Authorized Party or Authorized Parties") until notified otherwise in writing.
The Custodian shall be under no duty to question any direction of an Authorized
Party with respect to the portion of the Account(s) over which such Authorized
Party has authority, to review any Property held in the Account(s), to make any
suggestions with respect to the investment and reinvestment of the assets in the
Account(s), or to evaluate or question the performance of any Authorized Party.
The Custodian shall not be responsible or liable for any diminution of value of
any securities or other property held by the Custodian (or its subcustodians).
4. AUTHORIZED INSTRUCTIONS. All directions and instructions ("Instructions") to
the Custodian from an Authorized Party shall be in writing, by facsimile
transmission, electronic transmission subject to the Custodian's practices, or
any other method specifically agreed to in writing by the Clients and the
Custodian, provided the Custodian may, in its discretion and subject to the
procedures below, accept oral Instructions. If the Custodian adheres to the
security procedures identified below, the Custodian shall be fully protected in
acting in accordance with all such directions and instructions ("Authorized
Instructions") which it reasonably believes to have been given by an Authorized
Party or in failing to act in the absence thereof.
Notwithstanding anything to the contrary herein, Custodian shall follow
the following security procedures.
a. Wire Transfer Orders. Wire transfer orders to a single destination,
which the Clients have authorized Mellon in writing to accept as a repetitive
order, shall not be subject to the following call-back procedure. The Custodian
shall accept wire transfer orders only if two Authorized Parties have signed the
applicable Instructions. In addition, Custodian shall, prior to executing a
particular wire transfer order, call back an Authorized Party, other than an
Authorized Party who signed such Instructions, to confirm such wire transfer
orders.
b. Oral Instructions: The Custodian, in its discretion, may accept oral
Instructions from the any Authorized Party with respect to (i) Corporate Actions
(as defined under Section 7.h. below) and (ii) adjustments or corrections to
purchase and sale transaction Instructions previously received by the Custodian,
in either case, for the Account(s). In the event the Custodian accepts oral
Instructions from any Authorized Party, the Custodian shall call an Authorized
Party, other than the party issuing said Instructions, to confirm such
Instructions prior to taking any action in accordance with any such oral
Instructions.
5. DIRECTED POWERS OF CUSTODIAN. The Custodian shall have and exercise the
following powers and authority in the administration of the Account(s) upon the
direction of an Authorized Party:
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a. Settle purchases and sales and engage in other transactions,
including free receipts and deliveries (subject to the terms of Section 8.c.
hereof), exchanges and other voluntary corporate actions, with respect to
securities or other property received by the Custodian;
b. Execute proxies for any stocks, bonds or other securities held in
the Account(s);
c. Lend the assets of the Account(s) in accordance with the terms and
conditions of a separate securities lending agreement; and
d. Take any and all actions necessary to settle transactions in futures
and/or options contracts, short-selling programs, swaps and other derivative
investments.
6. DISCRETIONARY POWERS OF CUSTODIAN. The Custodian shall have and exercise the
following powers and authority in the administration of the Account(s):
a. Appoint domestic sub-custodians (including a corporate affiliate of
the Custodian) as to part or all of the Account(s);
b. Hold property in nominee name, in bearer form or in book entry form,
in a clearinghouse corporation or in a depository, so long as the Custodian's
records clearly indicate that the assets held are a part of the appropriate
Account(s);
c. Commence or defend suits or legal proceedings and represent the
Account(s) in all suits or legal proceedings in any court or before any other
body or tribunal as the Custodian shall deem necessary to protect the
appropriate Account(s);
d. Employ suitable agents and legal counsel, who may be counsel for the
Clients, and, as a part of its reimbursable expenses under this Agreement, pay
their reasonable compensation and expenses. The Custodian shall be entitled to
rely on and may act upon advice of counsel on all matters, and shall be without
liability for any action reasonably taken or omitted pursuant to such advice;
e. Take such action as is necessary to pay for authorized transactions.
In the event there is insufficient cash available for a particular transaction,
the Custodian shall promptly notify the Client of the amount of the shortfall
and the Client, at its option, shall deposit additional cash or securities in
the appropriate Account(s) or shall take steps to have sufficient cash or
securities available as soon as is practicable;
f. Make, execute and deliver any and all documents, agreements or other
instruments in writing as, in good faith, is necessary or desirable for the
accomplishment of any of the powers in this Agreement; and
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g. Generally take all action, whether or not expressly authorized,
which the Custodian may deem in good faith necessary or desirable for the
fulfillment of its duties hereunder.
The powers described in this Section 6 may also be exercised by the
Custodian with Authorized Instructions. Where the Custodian acts on Authorized
Instructions, the Custodian shall be fully protected as described in Section 4.
Without limiting the generality of the foregoing, the Custodian shall not be
liable for the acts or omissions of any subcustodian appointed under paragraph
(a) of this Section 6 pursuant to Authorized Instructions including, but not
limited to, any broker-dealer or other entity designated by the Client or
Investment Manager to hold any property of the Account as collateral or
otherwise pursuant to investment strategy.
7. DUTIES OF CUSTODIAN. The Custodian shall perform or cause its agents or
subcustodians to perform the following duties with respect to the Account:
a. Hold the property in safekeeping facilities of the Custodian or of
other custodian banks or clearing corporations, in the United States; provided
that the Custodian shall not be responsible for any losses resulting from the
deposit or maintenance of securities or other property (in accordance with
market practice, custom, or regulation) with any recognized domestic clearing
facility, book-entry system, centralized custodial depository, or similar
organization, except to the extent that any such loss results from the negligent
selection or retention of any such recognized domestic clearing facility,
book-entry system, centralized custodial depository or similar organization.
Upon the Instruction of a Client or Authorized Party, the Custodian shall
establish and maintain one or more segregated accounts for and on behalf of the
Series specified in the Instruction for purposes of segregating securities or
cash for the purpose or purposes specified in the Instruction;
b. Collect all income payable to and all distributions due to the
Account and sign on the Account's behalf all declarations, affidavits, and
certificates of ownership required to collect income and principal payments;
provided that the Custodian shall not be responsible for the failure to receive
payment of (or late payment of) distributions with respect to securities or
other property held in the Account;
c. Subject to the timely receipt of notice from an issuer or Authorized
Party, collect all proceeds from securities, certificates of deposit or other
investments which may mature, be redeemed, be retired, be called or otherwise be
payable;
d. Submit or cause to be submitted to the Client or the Investment
Manager, as designated by the Client, information actually received by the
Custodian regarding ownership rights pertaining to property held in the Account;
e. Attend to involuntary corporate actions;
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f. Exchange interim receipts or temporary securities for definitive
securities;
g. Render periodic statements for property held hereunder;
h. Give the appropriate Client written notice (which may be electronic)
of Corporate Actions (defined below) whenever the Custodian receives information
concerning the property held hereunder which requires discretionary action by
the beneficial owners of such property (other than a proxy), such as
subscription rights, bonus issues, stock repurchase plans and rights offerings,
or legal notices or other material intended to be transmitted to such holders
("Corporate Actions"). When a rights entitlement or a fractional interest
resulting from a rights issue, stock dividend, stock split or similar Corporate
Action is received which bears an expiration date, the Bank will endeavor to
obtain Instructions from the appropriate Client(s) or its Authorized Parties. If
Instructions are not received in time for the Custodian to take timely action,
or actual notice of such Corporate Action was received too late to seek such
instructions, the Custodian is authorized, but shall have no express or implied
duty or obligation, to (i) sell such rights entitlement or fractional interest
and to credit the appropriate Account(s) with the proceeds or (ii) take any
other action it deems, in good faith, to be appropriate. The Custodian shall be
fully protected for acting in accordance with, or failing to act in the absence
of, Instructions of a Client or its Authorized Party(ies) and for taking such
other action as the Custodian is so authorized under the immediately preceding
sentence of this Section 7.h.; and
i. The Custodian will send to the appropriate Client(s) or the
Authorized Party(ies) all proxies (if issued in the name of the Custodian's
nominee or the nominee of a central depository), notices and communications with
respect to securities in the Account(s) as call for voting or relate to legal
proceedings within a reasonable time after sufficient copies are received by the
Custodian for forwarding to its clients. In addition, the Custodian will follow
coupon payments, redemptions, exchanges or similar matters with respect to
securities in the Account(s) and advise the appropriate Client(s) or the
Authorized Party(ies) for such Account(s) of rights issued, tender offers or any
other discretionary rights with respect to such securities, in each case, of
which the Custodian has received notice from the issuer of the securities, or as
to which notice is published in publications routinely utilized by the Custodian
for this purpose.
8. CONTRACTUAL INCOME AND SETTLEMENT; MARKET PRACTICE SETTLEMENTS.
a. Contractual Income. In accordance with the Custodian's standard
operating procedure, the Custodian shall credit the Accounts with income and
maturity proceeds on securities on contractual payment date net of any taxes or
upon actual receipt. To the extent the Custodian credits income on contractual
payment date, the Custodian may reverse such accounting entries to the
contractual payment date if the Custodian reasonably believes that such amount
will not be received.
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b. Contractual Settlement. In accordance with the Custodian's standard
operating procedure, the Custodian will attend to the settlement of securities
transactions on the basis of either contractual settlement date accounting or
actual settlement date accounting. To the extent the Custodian settles certain
securities transactions on the basis of contractual settlement date accounting,
the Custodian may reverse to the contractual settlement date any entry relating
to such contractual settlement if the Custodian reasonably believes that such
amount will not be received.
c. Market Practice Settlements. Settlements of transactions may be
effected in trading and processing practices customary in the jurisdiction or
market where the transaction occurs. The Client acknowledges that this may, in
certain circumstances, other than circumstances involving purchase or sale
settlement transactions, require the delivery of cash or securities (or other
property) without the concurrent receipt of securities (or other property) or
cash. In such circumstances, the Custodian shall have no responsibility for
nonreceipt of payment (or late payment) or nondelivery of securities or other
property (or late delivery) by the counterparty.
9. TAX LAW.
a. The Custodian shall use reasonable efforts to assist the Authorized
Party, to the extent the Authorized Party has provided necessary information,
with respect to any tax obligations, including responsibility for taxes,
withholding, certification and reporting requirements, claims for exemptions or
refund, interest, penalties and other expenses ("Tax Obligations"). The Client
shall cause the Authorized Party to notify the Custodian in writing of any such
Tax Obligations. The Custodian shall have no responsibility or liability for any
Tax Obligations now or hereafter imposed on the Client or the Account by any
taxing authorities, domestic or foreign.
b. To the extent the Custodian is responsible under any applicable law
for any Tax Obligation, the Client shall cause the Authorized Party to inform
the Custodian of all Tax Obligations, shall direct the Custodian with respect to
the performance of such Tax Obligations and shall provide the Custodian with the
necessary funds and all information required by the Custodian to meet such Tax
Obligations.
10. NON-ACCOUNT ASSETS. The Client may request the Custodian to perform a
recordkeeping function with respect to property held by others and not otherwise
subject to the terms of this Agreement. To the extent the Custodian shall agree
to perform this service, its sole responsibility shall be to accurately reflect
information on its books which it has received from an Authorized Party.
11. REPORTING AND RECORDKEEPING. The ownership of the property whether
securities, cash and/or other property, and whether held by the Custodian or a
subcustodian or in a depository, clearing agency or clearing system, shall be
clearly recorded on the Custodian's books as belonging to the appropriate
Account and not for the Custodian's own interest. Where certificates are
legended or otherwise not fungible with publicly traded certificates
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(and in other cases where the Custodian and the Client may agree), the Client
reserves the right to instruct the Custodian as to the name only in which such
securities shall be registered and the Custodian, to the extent reasonably
practicable, shall comply with such Instructions; provided, however if Custodian
reasonably determines that compliance with such Instructions is not reasonably
practicable or otherwise may conflict with applicable law, rule or regulation,
Custodian shall promptly notify Client and shall comply with reasonable
alternatives as to which the parties may agree. The Custodian shall keep
accurate and detailed accounts of all investments, receipts, disbursements and
other transactions for each Account. All accounts, books and records of the
Custodian relating thereto shall be open to inspection and audit at all
reasonable times during normal business hours of the Custodian by any person
designated by the Client. All such books records and accounts shall be
maintained and preserved in the form reasonably requested by the Client and in
accordance with the Investment Company Act of 1940, as amended (the "1940 Act")
and the Rules and Regulations thereunder, including, without limitation, Section
31 thereof and Rule 31a-1 and 31a-2 thereunder. All books, records and accounts
pertaining to the Clients, the Series and the Accounts, which are in the
possession of the Custodian, shall be the property of the appropriate Client and
the appropriate Series and such materials or (unless the delivery of original
materials is required pursuant to applicable law) legible copies thereof in a
format reasonably acceptable to the Clients, shall be surrendered promptly upon
request; provided, however, that the Custodian shall be entitled to retain a
copy or the original of any such books, records and accounts as may be required
or permitted by applicable law and the Custodian's own policies and procedures.
The Custodian will supply to the Clients from time to time, as mutually agreed
upon, a statement in respect to any property in Account(s) held by the Custodian
or by a subcustodian.
If within ninety (90) days after the delivery to the Client of a
statement with respect to an Account(s), the Client has not given the Custodian
written notice of any exception or objection relating to any exception,
discrepancy, error or objection about which the Client knew or should have
known, then the statement shall be deemed to have been approved by the Client
for all purposes. Subject to the immediately preceding sentence, if within two
hundred and ten (210) days after the delivery to the Client of a statement with
respect to an Account(s), the Client has not given the Custodian written notice
of any exception, discrepancy, error or objection relating thereto, then such
statement shall be deemed to have been approved by the Client for all purposes.
In all cases where a statement has been approved by the Client, as provided for
under this Section 11, the Custodian shall not be liable for any matter in such
statements. In the event that an exception, discrepancy, error or objection is
discovered by the Client after the expiration of any such ninety (90) day period
or two hundred and ten (210) day period, as applicable, the Custodian shall
exercise reasonable efforts to correct or otherwise address any such exception,
discrepancy, error or objection with respect to which the Custodian has been
notified in writing by the Client.
The Custodian shall take all reasonable action as the Clients may
request to obtain from year to year favorable opinions from the Clients'
independent certified public accountants with respect to the Custodian's
activities hereunder in connection with the preparation of the Clients' Form
N-1A and the Clients' Form N-SAR or other periodic
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reports to the Securities and Exchange Commission ("SEC") and with respect to
any other requirements of the SEC. The Custodian shall be entitled to
reimbursement of its reasonable expenses in connection with assisting the
Clients with respect to the preparation of the Clients' Forms N-1A and N-SAR and
other periodic reports or requirements of the SEC to the extent that the
Custodian does not provide such service without cost to other Clients of the
Custodian generally.
At the request of a Client, the Custodian shall deliver to the Client a
written report prepared by the Custodian's independent certified public
accountants with respect to the services provided by the Custodian under this
Agreement, including, without limitation, the Custodian's accounting system,
internal accounting control and procedures for safeguarding cash and securities,
including cash and securities deposited and/or maintained in a depository,
clearing agency or clearing system or with a subcustodian. Such report shall be
of sufficient scope and in sufficient detail as may reasonably be required by
the Client and as may reasonably be obtained by the Custodian. The Custodian
shall be entitled to reimbursement of its reasonable expenses in connection with
the preparation and delivery of such report to the extent that any such report
is not ordinarily prepared and delivered without cost to other clients of the
Custodian generally.
12. STANDARD OF CARE. In performing its duties under this Agreement, the
Custodian shall exercise the same care and diligence that it would devote to its
own property in like circumstances. The Custodian shall perform its duties
hereunder in a manner consistent with the duties and responsibilities of a
custodian of registered investment companies generally. The duties of the
Custodian shall only be those specifically undertaken pursuant to this
Agreement. The Custodian shall not be responsible or liable for any losses or
damages suffered by the Client arising as a result of the insolvency of any
subcustodian except to the extent that the Custodian has appointed and retained
any such subcustodian in its sole discretion and except to the extent the
Custodian was negligent in its selection or continued retention of any such
subcustodian.
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, direction, instruction, consent, certification or
other instrument believed by it to be genuine and delivered by an Authorized
Party. Except as otherwise set forth herein, the Custodian shall not be liable
for any act or omission of any other person in carrying out any responsibility
imposed upon such person and under no circumstances shall the Custodian be
liable for any indirect (foreseeable), consequential or special damages with
respect to its role as Custodian.
13. FORCE MAJEURE. Notwithstanding anything in this Agreement to the contrary
contained herein, the Custodian shall not be responsible or liable for its
failure to perform under this Agreement or for any losses to the Account
resulting from any event beyond the reasonable control of the Custodian, its
agents or subcustodians, which may include, but is not limited to,
nationalization, strikes, expropriation, devaluation, seizure, or
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similar action by any governmental authority, de facto or de jure; or enactment,
promulgation, imposition or enforcement by any such governmental authority of
currency restrictions, exchange controls, levies or other charges affecting the
Account's property; or the breakdown, failure or malfunction of any utilities or
telecommunications systems; or any order or regulation of any banking or
securities industry including changes in market rules and market conditions
affecting the execution or settlement of transactions; or acts of war,
terrorism, insurrection or revolution; or acts of God; or any other similar
event. This Section shall survive the termination of this Agreement.
14. COMPENSATION AND EXPENSES. The Custodian shall be entitled to compensation
for services under this Agreement as mutually agreed. Clients acknowledge that,
as part of the Custodian's compensation, the Custodian may earn interest on
balances, including disbursement balances and balances arising from purchase and
sale transactions. The Custodian shall also be entitled to reimbursement for
reasonable, properly vouched, out-of-pocket expenses incurred by it in the
discharge of its duties under this Agreement. The Custodian is authorized to
charge and collect from the applicable Account any and all fees and expenses
earned unless such fees and expenses are paid directly by the Client. The
Custodian shall provide the Client with three (3) days prior within notice in
the event that any such fees and expenses are to be so charged and collected
from an applicable Account.
For each month during which the Custodian holds property for a Client, there
shall be an adjustment to the custody fees, calculated as follows. For each day
of the month in which the closing cash balance is more than zero, such cash
balance amount will earn interest calculated by taking the amount of the idle
balance multiplied by the Overnight Fed Funds (defined below) minus .50% divided
by 365 days. The amount of interest credit shall be known as the "Daily
Credits." Alternatively, for each day of the month in which the closing balance
is less than zero (an "overdraft"), the overdraft amount will be subject to a
charge calculated by taking the amount of the overdraft multiplied by the
Overnight Federal Funds Rate (defined below) plus .50% divided by 365 days. The
amount of interest charge shall be known as "Daily Charges." The net of the
Daily Credits and Daily Charges for a particular month will be credited or
debited, as the case may be, to the custody invoice for the applicable period.
Monthly credit balances will roll forward to offset future Custodian fees and
expenses. Unused Daily Credits will expire at calendar year-end. Credit balances
may not be transferred. They are used exclusively to offset Custodian fees and
expenses and shall not be applied against investment or other related expenses.
A Daily Charge shall not apply to the extent that an overdraft is solely due to
Custodian error.
The term "Overnight Federal Funds Rate" shall mean, for any month, the average
of daily "Federal Funds Rates" for a given month. In turn, the daily Federal
Funds Rates shall mean, for any day, the weighted average of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers on such day, as published by the Federal
Reserve Bank of New York on the business day next succeeding such day.
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15. INDEMNIFICATION. The Clients shall indemnify and hold harmless the Custodian
to the extent any liability and expense, including reasonable counsel fees and
expenses, arising out of the performance of the Custodian's obligations under
this Agreement except as a result of the Custodian's negligence or willful
misconduct. This indemnification shall survive the termination of this
Agreement.
16. AMENDMENT OR TERMINATION. This Agreement may be amended by written agreement
of the Clients and the Custodian. This Agreement may be terminated by a Client
for one or more Series on sixty (60) days' prior written notice to the Custodian
or upon one hundred and twenty (120) days' prior written notice by the Custodian
to a Client. Any such applicable prior written notice requirement may be
modified by the terminating party with the consent of the non-terminating party,
which consent will not be unreasonably withheld. In the event this Agreement is
terminated with respect to a particular Client or Series thereof, this Agreement
shall continue in effect with respect to the other Clients and Series.
Upon termination of this Agreement entirely, or with respect to a Client or
Series thereof, the property of the applicable Client(s) or Series, less any
amounts then due and payable to the Custodian, shall be delivered by the
Custodian to a successor custodian upon receipt by the Custodian of a written
instruction from the Client(s) designating the successor custodian; and if no
successor custodian is designated in such written Instruction, the Custodian
shall, upon such termination, deliver all such property to the Client(s).
Notwithstanding the foregoing, upon termination of this Agreement entirely, or
with respect to a Client or Series thereof, the Custodian may hold such property
in the applicable Account(s) as the Custodian shall select with the consent of
the applicable Client(s), which consent will not be unreasonably withheld, as
security for advances made to the Account(s) for any authorized transactions,
including, without limitation, disbursements or expenses. The Custodian shall be
entitled to collect from the appropriate Account(s) sufficient cash for
reimbursement and, if such cash is insufficient, dispose of the assets of the
appropriate Account(s) to the extent necessary to obtain reimbursement.
17. GOVERNING LAW AND LEGAL PROCEEDINGS. This Agreement shall be construed in
accordance with and governed by the laws of the Commonwealth of Pennsylvania.
The parties hereby expressly waive, to the full extent permitted by applicable
law, any right to trial by jury with respect to any judicial proceeding arising
from or related to this Agreement.
18. REPRESENTATIONS. Client and the Custodian hereby each represent and warrant
to the other that it has full authority to enter into this Agreement upon the
terms and conditions hereof and that the individual executing this Agreement on
its behalf has the requisite authority to bind the Client or the Custodian to
this Agreement. The Custodian further represents and warrants that it is
qualified as a custodian under Sections 17(f) and
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26(a) of the 1940 Act and warrants that it will remain so qualified upon ceasing
to be so qualified shall promptly notify the Clients in writing.
19. NECESSARY PARTIES. All of the understandings, agreements, representations
and warranties contained herein are solely for the benefit of the Clients, the
Series and the Custodian and there are no other parties who are intended to be
benefited, in any way whatsoever, by this Agreement.
20. EXECUTION IN COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, and said counterparts
shall constitute but one and the same instrument and may be sufficiently
evidenced by one counterpart.
21. SUCCESSORS AND ASSIGNS. This Agreement shall not be assignable by either
party without the consent of the other party. Notwithstanding the foregoing, the
Agreement shall bind the successors in interest of the Clients and the
Custodian.
22. SEVERAL OBLIGATIONS OF THE SERIES. With respect to any obligations of a
Client on behalf of its Series and its Account(s) arising hereunder, the
Custodian shall look for payment or satisfaction of any such obligation solely
to the assets and property of the Series and such Account to which such
obligation relates as though each Client had separately contracted with the
Custodian by separate written instrument with respect to each Series and its
Account(s).
[INTENTIONALLY LEFT BLANK]
11
14
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first set forth above.
AUTHORIZED SIGNER OF: AUTHORIZED OFFICER OF:
[CLIENT] MELLON BANK, N.A.
By: By:
------------------------- --------------------------
Name: Name:
----------------------- ------------------------
Title: Title:
---------------------- -----------------------
Date: Date:
----------------------- ------------------------
ADDRESS FOR NOTICE: ADDRESS FOR NOTICE:
000 Xxxxxxxx Xxxxxxx
---------------------------- Xxxxxxx, XX 00000
Attention:
---------------------------- -------------------
Attention:
------------------
TAXABLE:
--------------------
OR
TAX EXEMPT:
-----------------
(UNDER IRC SECTION: )
-------
FISCAL YEAR:
----------------
12
15
TAXPAYER IDENTIFICATION NUMBER CERTIFICATION
By signing below the Client hereby certifies under penalties of perjury
that the taxpayer identification number provided below is correct and that the
Client is not subject to back-up withholding on reportable payments credited to
the Client's Account by the Custodian. The Client may not be subject to back-up
withholding either because (a) the Client is exempt from back-up withholding
because it is an "exempt recipient", (b) the Client has not been notified by the
Internal Revenue Service that it is subject to back-up withholding for failure
to report all interest or dividends, or (c) the IRS has notified the Client that
it is no longer subject to back-up withholding. (If (a), (b), or (c) do not
apply, please cross out.) FAILURE TO SIGN BELOW AND PROVIDE A VALID TAXPAYER
IDENTIFICATION NUMBER MAY REQUIRE THAT THE CUSTODIAN APPLY FEDERAL INCOME TAX
WITHHOLDING AT THE RATE OF 31% (OR THE RATE AS REQUIRED BY LAW) ON ALL
REPORTABLE PAYMENTS MADE TO THE ACCOUNT ESTABLISHED UNDER THIS AGREEMENT.
THE INTERNAL REVENUE SERVICE DOES NOT REQUIRE YOUR CONSENT TO ANY
PROVISION OF THIS DOCUMENT OTHER THAN THE CERTIFICATIONS REQUIRED TO AVOID
BACKUP WITHHOLDING.
[CLIENT]
BY:
--------------------------------
NAME:
------------------------------
TITLE:
-----------------------------
-----------------------------------
TAXPAYER IDENTIFICATION NUMBER
13
