Exhibit (g)(1)
AMENDED AND RESTATED MASTER CUSTODIAN AGREEMENT
This Agreement is made as of December 9, 2005 by and among each management
investment company identified on Appendix A hereto (each such investment company
and each management investment company made subject to this Agreement in
accordance with Section 18.5 below, shall hereinafter be referred to as (the
"FUND"), and STATE STREET BANK and TRUST COMPANY, a Massachusetts trust company
(the "CUSTODIAN");
WITNESSETH:
WHEREAS, each Fund may or may not be authorized to issue shares of common
stock or shares of beneficial interest in separate series ("SHARES"), with each
such series representing interests in a separate portfolio of securities and
other assets;
WHEREAS, each Fund so authorized intends that this Agreement be applicable
to each of its series set forth on Appendix A hereto (such series together with
all other series subsequently established by the Fund and made subject to this
Agreement in accordance with Section 18.6 below, shall hereinafter be referred
to as the "PORTFOLIO(S)").
WHEREAS, each Fund not so authorized intends that this Agreement be
applicable to it and all references hereinafter to one or more "Portfolio(s)"
shall be deemed to refer to such Fund(s); and
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 a custodian of assets of the
Portfolios, 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"). The Custodian shall not be responsible for any property
of a Portfolio which is not received by it or which is delivered out in
accordance with Proper Instructions (as such term is defined in Section 7
hereof) including, without limitation, Portfolio property (i) held by brokers,
private bankers or other entities on behalf of the Portfolio (each a "LOCAL
AGENT") or (ii) held by entities which have advanced monies to or on behalf of
the Portfolio and which have received Portfolio property as security for such
advance(s) (each a "PLEDGEE"), so long as the Custodian's or its sub-custodian's
or agent's or a Foreign Sub-Custodian's negligence, bad faith or willful
misconduct has not directly caused such non-receipt or delivery, as the case may
be. With respect to uncertificated shares (the "UNDERLYING SHARES") of
registered "investment companies" (as defined in Section 3(a)(l) of the
Investment Company Act of 1940, as amended from time to time (the "1940 ACT")),
whether in the same "group of investment companies" (as defined in Section
12(d)(1)(G)(ii) of the 0000 Xxx) or otherwise, including pursuant to Section
l2(d)(l)(F)of the 1940 Act (hereinafter sometimes referred to as the "UNDERLYING
PORTFOLIOS") the holding of confirmation statements that identify the shares as
being recorded in the Custodian's name on behalf of the Portfolios will be
deemed custody for purposes 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
the Board of Trustees or the Board of Directors of the Fund (as appropriate, and
in each case, the "BOARD") on behalf of the applicable Portfolio(s) (each, a
"Directed Sub-Custodian"), and provided that the Custodian shall have no more or
less responsibility or liability to any Fund on account of any actions or
omissions of any Directed Sub-Custodian so employed than any such Directed
Sub-Custodian has to the Custodian.
The Custodian may place and maintain each Fund's foreign securities with foreign
banking institution sub-custodians employed by the Custodian and/or foreign
securities depositories, all as designated in Schedules A and B hereto, but only
in accordance with the applicable provisions of Sections 3 and 4 hereof.
SECTION 2. DUTIES OF THE CUSTODIAN WITH RESPECT TO PROPERTY OF THE PORTFOLIOS TO
BE HELD 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) securities which are maintained pursuant to Section 2.8
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") and (b) Underlying Shares owned by each Fund which are
maintained pursuant to Section 2.10 hereof in an account with State Street Bank
and Trust Company or such other entity which may from time to time act as a
transfer agent for the Underlying Portfolios and with respect to which the
Custodian is provided with Proper Instructions (the "UNDERLYING TRANSFER
AGENT").
SECTION 2.2 DELIVERY OF SECURITIES. The Custodian shall release and
deliver domestic securities owned by a Portfolio held by the Custodian, in a
U.S. Securities System account of the Custodian or in an account at the
Underlying Transfer Agent, 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 to 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 2.8 hereof;
4) To the depository agent in connection with tender or other similar
offers for securities of the Portfolio;
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5) To the issuer thereof or its agent when such securities are called,
redeemed, retired or otherwise become payable; provided that, in any
such case, the cash or other consideration is to be delivered to the
Custodian;
6) To the issuer thereof, or its agent, for transfer into the name of
the 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 2.7 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 Custodian's or its own sub-custodian's or agent's or a
Foreign Sub-Custodian's negligence, bad faith 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 (a) against receipt of collateral as agreed from time to
time by the Fund on behalf of the Portfolio, except that in
connection with any loans for which collateral is to be credited to
the Custodian's account in the book-entry system authorized by the
U.S. Department of the Treasury, the Custodian will not be held
liable or responsible for the delivery of securities owned by the
Portfolio prior to the receipt of such collateral or (b) to the
lending agent, or the lending agent's custodian, in accordance with
written Proper Instructions (which may not provide for the receipt
by the Custodian of collateral therefor) agreed upon from time to
time by the Custodian and the Fund;
11) For delivery as security in connection with any borrowing by a Fund
on behalf of a Portfolio requiring a pledge of assets by the Fund on
behalf of such Portfolio;
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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. (the "NASD"), relating to compliance with
the rules of The Options Clearing Corporation and of any registered
national securities exchange, or of any similar organization or
organizations, regarding escrow or other arrangements in connection
with transactions by the Fund on behalf of a Portfolio;
13) For delivery in accordance with the provisions of any agreement
among a 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 (the "CFTC") and/or any contract market, or any
similar organization or organizations, regarding account deposits in
connection with transactions by the Fund on behalf of a Portfolio;
14) For delivery as initial or variation margin in connection with
futures or options on futures contracts entered into by the Fund on
behalf of the Portfolio;
15) Upon the sale or other delivery of such investments (including,
without limitation, to one or more additional custodians appointed
by the Fund, and communicated to the Custodian from time to time via
a writing duly executed by an authorized officer of the Fund, for
the purpose of engaging in repurchase agreement transactions(s),
each a "REPO CUSTODIAN"), and prior to receipt of payment therefor,
as set forth in written Proper Instructions (such delivery in
advance of payment, along with payment in advance of delivery made
in accordance with Section 2.6(7), as applicable, shall each be
referred to herein as a "FREE TRADE"), provided that such Proper
Instructions shall set forth (a) the securities of the Portfolio to
be delivered and (b) the person(s) to whom delivery of such
securities shall be made;
16) Upon receipt of instructions from the Fund's transfer agent (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;
17) In the case of a sale processed through the Underlying Transfer
Agent of Underlying Shares, in accordance with Section 2.10 hereof;
and
18) For any other purpose, but only upon receipt of Proper Instructions
from the Fund on behalf of the applicable Portfolio specifying (a)
the securities of the Portfolio to be
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delivered and (b) the person or persons to whom delivery of such
securities shall be made.
SECTION 2.3 REGISTRATION OF SECURITIES. Domestic securities held by the
Custodian (other than bearer securities) shall be registered in the name of the
Portfolio or in the name of any nominee of a Fund on behalf of the Portfolio or
of any nominee of the Custodian which nominee shall be assigned exclusively to
the Portfolio, unless the Fund has authorized in writing the appointment of a
nominee to be used in common with other registered management investment
companies having the same investment adviser as the Portfolio, or in the name or
nominee name of any agent appointed pursuant to Section 2.7 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 the 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"
(i.e. other than registered or held as described above), 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 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 COLLECTION OF INCOME. Except with respect to Portfolio
property released and delivered pursuant to Section 2.2(14) or purchased
pursuant to Section 2.6(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 Portfolio's custodian account. Without
limiting the generality of the foregoing, the Custodian shall detach and present
for payment all coupons and other income items requiring presentation as and
when they become due and shall collect interest when due on securities held
hereunder. Income due each 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
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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 2.6 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, options on futures contracts or other financial
instruments 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 2.8 hereof; (c) in the case
of a purchase of Underlying Shares, in accordance with the
conditions set forth in Section 2.10 hereof; (d) in the case of
repurchase agreements entered into between the applicable Fund on
behalf of a 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 Custodian's account at the Federal Reserve Bank with such
securities or (ii) against delivery of the receipt evidencing
purchase by the Portfolio of securities owned by the Custodian along
with written evidence of the agreement by the Custodian to
repurchase such securities from the Portfolio; or (e) for transfer
to a time deposit account of the Fund in any bank, whether domestic
or foreign; such transfer may be effected prior to receipt of a
confirmation from a broker and/or the applicable bank pursuant to
Proper Instructions from the Fund as defined 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 6 hereof;
4) For the payment of any expense or liability incurred by the
Portfolio, including but not limited to the following payments for
the account of the Portfolio: interest, taxes, 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;
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5) For the payment of any dividends on Shares declared pursuant to the
Fund's articles of incorporation or organization and by-laws or
agreement or declaration of trust, as applicable, and Prospectus
(collectively, "GOVERNING DOCUMENTS");
6) For payment of the amount of dividends received in respect of
securities sold short;
7) For delivery as initial or variation margin in connection with
futures or options on futures contracts entered into by the Fund on
behalf of the Portfolio;
8) Upon the purchase of domestic investments including, without
limitation, repurchase agreement transactions involving delivery of
Portfolio monies to Repo Custodian(s), and prior to receipt of such
investments, as set forth in written Proper Instructions (such
payment in advance of delivery, along with delivery in advance of
payment made in accordance with Section 2.2(14), as applicable,
shall each be referred to herein as a "FREE TRADE"), provided that
such Proper Instructions shall also set forth (a) the amount of such
payment and (b) the person(s) to whom such payment is made; and
9) any other purpose, but only upon receipt of Proper Instructions
from the Fund on behalf of the Portfolio specifying (a) the amount
of such payment and (b) the person or persons to whom such payment
is to be made.
SECTION 2.7 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 Custodian shall be
fully responsible for the acts and omissions of such agents or sub-custodians to
the same extent as if such act or omission were performed by the Custodian
itself. The Underlying Transfer Agent shall not be deemed an agent or
sub-custodian of the Custodian for purposes of this Section 2.7 or any other
provision of this Agreement.
SECTION 2.8 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 in compliance with the conditions of Rule 17f-4 under the 1940
Act, as amended from time to time.
SECTION 2.9 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 2.8
hereof, (a) in accordance with the provisions of any agreement among the Fund on
behalf of the Portfolio, the Custodian and a broker-dealer registered under the
Exchange Act and a member of the NASD (or any futures commission merchant
registered under the Commodity Exchange Act), relating to compliance with the
rules of The Options Clearing Corporation and of any registered national
securities exchange (or the CFTC or any registered contract market), or of
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any similar organization or organizations, regarding escrow or other
arrangements in connection with transactions by the Portfolio, (b) 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, (c) 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 U.S. Securities and
Exchange Commission (the "SEC"), or interpretative opinion of the staff of the
SEC, relating to the maintenance of segregated accounts by registered investment
companies, and (d) for any other purpose in accordance with Proper Instructions.
SECTION 2.10 DEPOSIT OF FUND ASSETS WITH THE UNDERLYING TRANSFER AGENT.
Underlying Shares beneficially owned by the Fund, on behalf of a Portfolio,
shall be deposited and/or maintained in an account or accounts maintained with
an Underlying Transfer Agent and the Custodian's only responsibilities with
respect thereto shall be limited to the following:
1) Upon receipt of a confirmation or statement from an Underlying
Transfer Agent that such Underlying Transfer Agent is holding or
maintaining Underlying Shares in the name of the Custodian (or a
nominee of the Custodian) for the benefit of a Portfolio, the
Custodian shall identify by book-entry that such Underlying Shares
are being held by it as custodian for the benefit of the Portfolio.
2) In respect of the purchase of Underlying Shares for the account of a
Portfolio, upon receipt of Proper Instructions, the Custodian shall
pay out monies of such Portfolio as so directed, and record such
payment from the account of such Portfolio on the Custodian's books
and records.
3) In respect of the sale or redemption of Underlying Shares for the
account of a Portfolio, upon receipt of Proper Instructions, the
Custodian shall transfer such Underlying Shares as so directed,
record such transfer from the account of such Portfolio on the
Custodian's books and records and, upon the Custodian's receipt of
the proceeds therefor, record such payment for the account of such
Portfolio on the Custodian's books and records.
The Custodian shall not be liable to the Fund for any loss or damage to
the Fund or any Portfolio resulting from the maintenance of Underlying
Shares with Underlying Transfer Agent except for loss or damage resulting
directly from the negligence, bad faith or willful misconduct of the
Custodian or any of its sub-custodians or agents or any Foreign
Sub-Custodian or of any of its or their employees.
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.
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SECTION 2.12 PROXIES. Except with respect to Portfolio property released
and delivered pursuant to Section 2.2(14), or purchased pursuant to Section
2.6(7), the Custodian shall, with respect to the domestic securities held
hereunder, cause to be promptly executed by the registered holder of such
securities, if the securities are registered otherwise than in the name of the
Portfolio or a nominee of the Portfolio, all proxies, without indication of the
manner in which such proxies are to be voted, and shall promptly deliver to the
Fund 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(14), or purchased pursuant to Section 2.6(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
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 Fund on behalf of 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 applicable Fund 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. Provided that the
Custodian's or its sub-custodian's or agent's or a Foreign Sub-Custodian's own
negligence, bad faith or willful misconduct has not directly prevented any of
the following conditions from occurring, the Custodian shall not be liable for
any untimely exercise of any tender, exchange or other right or power in
connection with domestic securities or other property of the Portfolios at any
time held by it unless (i) the Custodian is in actual possession of such
domestic 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 3. PROVISIONS RELATING TO RULES 17F-5 AND 17F-7
SECTION 3.1. DEFINITIONS. As used throughout this Agreement, the
capitalized terms set forth below shall have the indicated 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 country's 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 SEC), or a foreign branch of a Bank (as defined in Section 2(a)(5)
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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)(3) of Rule
17f-5.
"RULE 17F-5" means Rule 17f-5 promulgated under the 1940 Act.
"RULE 17F-7" means Rule 17f-5 promulgated under the 1940 Act.
SECTION 3.2. THE CUSTODIAN AS FOREIGN CUSTODY MANAGER.
3.2.1 DELEGATION TO THE CUSTODIAN AS FOREIGN CUSTODY MANAGER. Each
Fund, by resolution adopted by its 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 Agreement, which list of countries may be amended
from time to time by any Fund with the agreement of the Foreign Custody Manager.
The Foreign Custody Manager shall list on Schedule A the Eligible Foreign
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 each Fund, on behalf of the applicable
Portfolio(s), of the applicable account opening requirements for such country,
the Foreign Custody Manager shall be deemed to have been delegated by such
Fund's Board on behalf of such Portfolio(s) responsibility as Foreign Custody
Manager with respect to that country and to have accepted such delegation.
Execution of this Agreement by each 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. 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 such Portfolio to
the Custodian as Foreign Custody Manager for that country shall be deemed to
have
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been withdrawn and the Custodian shall immediately cease to be the Foreign
Custody Manager with respect to such Portfolio 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. Forty-five 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 in its capacity 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)(l).
(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. As required by Rule 17f-5, in the event the Foreign Custody
Manager determines that the custody arrangements with an Eligible Foreign
Custodian it has selected are no longer appropriate including, no longer meeting
the requirements of Rule 17f-5, the Foreign Custody Manager shall notify the
Board in accordance with Section 3.2.5 hereunder.
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
11.
Schedule A at the end of the calendar quarter in which an amendment to such
Schedule has occurred. The Foreign Custody Manager shall make reasonably prompt
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.
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 each Fund that it is a U.S. Bank as defined in
section (a)(7) of Rule 17f-5. Each Fund represents to the Custodian that its
Board has determined that it is reasonable for such Board to rely on the
Custodian to perform the responsibilities delegated pursuant to this Agreement
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. Each Board's 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 forty-five (45) 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)(l)(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)(l)(i)(B) of Rule l7f-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 TO
BE HELD OUTSIDE THE UNITED STATES
SECTION 4.1 DEFINITIONS. As used throughout this Agreement, the
capitalized terms set forth below shall have the indicated meanings:
12.
"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;
13.
(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 Custodian shall have no responsibility or
liability for any loss arising from the delivery of such foreign
securities prior to receiving payment for such foreign securities
except as may arise from the Custodian's, its agent's or
sub-custodian's or the Foreign Sub-Custodian's own negligence, bad
faith or willful misconduct;
(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 a Fund
on behalf of a Portfolio requiring a pledge of assets by the Fund
on behalf of such Portfolio;
(x) In connection with trading in options and futures contracts,
including delivery as original margin and variation margin;
(xi) Upon the sale or other delivery of such foreign securities
(including, without limitation, to one or more Repo Custodians) as
a Free Trade, provided that applicable Proper Instructions shall
set forth (A) the foreign securities to be delivered and (B) the
person or persons to whom delivery shall be made;
(xii) In connection with the lending of foreign securities; and
(xiii) For any other purpose, but only upon receipt of Proper Instructions
specifying (A) the foreign securities to be delivered and (B) 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
a Portfolio in the following cases only:
14.
(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 Agreement, 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) Upon the purchase of foreign investments including, without
limitation, repurchase agreement transactions involving delivery of
Portfolio monies to Repo Custodian(s), as a Free Trade, provided
that applicable Proper Instructions shall set forth (A) the amount
of such payment and (B) the person or persons to whom payment shall
be made;
(vii) For payment of part or all of the dividends received in respect of
securities sold short;
(viii) In connection with the borrowing or lending of foreign securities;
and
(ix) For any other purpose, but only upon receipt of Proper Instructions
specifying (A) the amount of such payment and (B) the person or
persons to whom such payment is to be made.
4.4.3. MARKET CONDITIONS. Notwithstanding any provision of this
Agreement 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
15.
dealer) with the expectation of receiving later payment for such Foreign Assets
from such purchaser or dealer.
The Custodian shall provide to each Board the information with respect to
custody and settlement practices in countries in which the Custodian employs a
Foreign Sub-Custodian described on Schedule C hereto at the time or times set
forth on such Schedule. The Custodian may revise Schedule C from time to time,
provided that no such revision shall result in a 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 applicable 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 Agreement 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 applicable 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, and the
need for such measures is not directly caused by the Custodian, or its
sub-custodian's or agent's or the Foreign Sub-Custodian's negligence, bad faith
or willful misconduct, 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 shall 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. Each Fund acknowledges that
local
16.
conditions, including lack of regulation, onerous procedural obligations, lack
of notice and other factors may have the effect of severely limiting the ability
of such Fund to exercise shareholder rights.
SECTION 4.9. COMMUNICATIONS RELATING TO FOREIGN SECURITIES. The Custodian
shall transmit promptly to the applicable 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
applicable 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.
Provided that the Custodian's or its agent's or sub-custodian's or the Foreign
Sub-Custodian's own negligence, bad faith or willful misconduct has not directly
prevented any of the following conditions from occurring, 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-Custodian's performance of such
obligations. At a Fund's 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. Such
subrogation rights are in addition to any other rights and remedies that a Fund
may have under this Agreement.
SECTION 4.11 TAX LAW. The Custodian shall have no responsibility or
liability for any obligations now or hereafter imposed on any Fund, the
Portfolios or the Custodian as custodian of the Portfolios by the tax law of the
United States or of any state or political subdivision thereof. It shall be the
responsibility of each Fund to notify the Custodian of the obligations imposed
on such Fund with respect to the Portfolios or the Custodian as custodian of the
Portfolios by the tax law of countries other than those mentioned in the above
sentence, including responsibility for withholding and other taxes, assessments
or other governmental charges, certifications and governmental reporting. The
sole responsibilities of the Custodian with regard to such tax law shall be to
use reasonable efforts to effect the withholding of local taxes and related
charges with regard to market entitlement/payment in accordance with local law
and subject to local market practice or custom and
17.
to assist the Fund with respect to any claim for exemption or refund under the
tax law of countries for which such Fund has provided such information.
SECTION 4.12. LIABILITY OF CUSTODIAN. 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 this Agreement, it being
specifically understood and agreed that any liability of the Custodian for the
negligence, bad faith or willful misconduct of a Foreign Sub-Custodian shall be
determined in light of the circumstances and practices prevailing in the
jurisdiction where such Foreign Sub-Custodian's act or omission occurred.
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 Foreign Sub-Custodian has otherwise acted
with reasonable care.
SECTION 5. RESERVED.
SECTION 6. PAYMENTS FOR SALES OR REPURCHASES OR REDEMPTIONS OF SHARES.
The Custodian shall receive from the distributor of 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 Proper 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
or repurchase of Shares, the Custodian is authorized upon receipt of Proper
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 such Fund and
the Custodian.
SECTION 7. PROPER INSTRUCTIONS.
"PROPER INSTRUCTIONS," which may also be standing instructions, as such term is
used throughout this Agreement shall mean instructions received by the Custodian
from a Fund or a person or entity duly authorized by a Fund ("AUTHORIZED
PERSON"). Such instructions may be in writing signed by the Authorized Person or
may be in a tested communication or in a communication utilizing access
18.
codes effected between electro-mechanical or electronic devices or may be by
such other means and utilizing such intermediary systems and utilities as may be
agreed from time to time by the Custodian and the person(s) or entity giving
such instruction, provided that the Fund has followed any security procedures
agreed to from time to time by the applicable Fund and the Custodian including,
but not limited to, the security procedures selected by the Fund via the form of
Funds Transfer Addendum hereto. Oral instructions will be considered Proper
Instructions if the Custodian reasonably believes them to have been given by an
Authorized Person with respect to the transaction involved; the Fund shall cause
all oral instructions to be confirmed in writing. For purposes of this Section,
Proper Instructions shall include instructions received by the Custodian in
accordance with any multi-party agreement which requires a segregated asset
account in accordance with Section 2.9 hereof.
Concurrently with the execution of this Agreement, and from time to time
thereafter, as appropriate, each Fund shall deliver to the Custodian, duly
certified by any of such Fund's Secretary, Assistant Secretary, Treasurer or
Assistant Treasurer, a certificate setting forth the names, titles, signatures
and scope of authority of all persons authorized to give Proper Instructions or
any other notice, request, direction, instruction, certificate or instrument on
behalf of the Fund. Such certificate may be accepted and relied upon by the
Custodian as conclusive evidence of the facts set forth therein and shall be
considered to be in full force and effect until receipt by the Custodian of a
similar certificate to the contrary.
SECTION 8. EVIDENCE OF AUTHORITY
The Custodian shall be protected in acting upon any Proper Instruction, notice,
request, consent, certificate or other instrument or paper reasonably believed
by it to be genuine and to have been properly executed by or on behalf of the
applicable Fund. The Custodian may receive and accept a copy of a resolution
certified by the Secretary or an Assistant Secretary of any Fund 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.
SECTION 9. 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 the Custodian has not received prior
written notice from the applicable Fund that such payment has been
disputed by the Fund on behalf of the Portfolio and provided,
further, all such payments shall be accounted for to the Fund on
behalf of the Portfolio;
19.
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 applicable Board.
SECTION 10. SERVICE LEVEL DOCUMENTS
The Fund and the Custodian may from time to time, in good faith, agree on
certain performance measures by which the Custodian is expected to provide the
services contemplated by this Agreement ("SERVICE LEVEL DOCUMENTS"). The Service
Level Documents are designed to provide metrics and other information which may
be utilized by the parties to help measure performance. The parties agree
Service Level Documents reflect performance measures as opposed to specific
contractual obligations. Notwithstanding, the parties agree that (a) the
Custodian's inability to achieve such performance measures may give rise to
grounds for termination pursuant to Section 16; and (b) the Custodian's
performance and/or non-performance of the services, separate and apart from the
performance measures in the Service Level Documents, may give rise to any
remedies in tort or contract that the Fund may assert against Custodian under
the terms of this Agreement.
SECTION 11. RECORDS
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 each 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 such Fund and employees and
agents of the SEC. The Custodian shall, at a Fund's 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. Each Fund acknowledges that, in
creating and maintaining the records as set forth herein with respect to
Portfolio property released and delivered pursuant to Section 2.2(14), or
purchased pursuant to Section 2.6(7) hereof, the Custodian is authorized and
instructed to rely upon information provided to it by the Fund, the Fund's
counterparty(ies), or the agents of either of them.
20.
SECTION 12. OPINION OF FUND'S INDEPENDENT ACCOUNTANT
The Custodian shall take all reasonable action, as a Fund with respect to a
Portfolio may from time to time request, to obtain from year to year favorable
opinions from the Fund's independent accountants with respect to its activities
hereunder in connection with the preparation of the Fund's Form N-1A or Form
N-2, as applicable, and Form N-SAR or other annual reports to the SEC and with
respect to any other requirements thereof.
SECTION 13. 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 such Fund may reasonably require, with reports by
independent public accountants on the accounting system, internal accounting
control and procedures for safeguarding securities, futures contracts and
options on futures contracts, including securities deposited and/or maintained
in a U.S. Securities System or a Foreign Securities System (either, a
"SECURITIES SYSTEM"), 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 14. 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 15. 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 including, without limitation, acting in accordance with any
Proper Instruction; provided the Custodian, its agents, sub-custodians or
Foreign Sub-Custodians, as may be applicable in the instance of any particular
act or omission, have acted in good faith without negligence or willful
misconduct; and provided, further, that all references throughout this Agreement
to the standard of care exercised by any Foreign Sub-Custodian (e.g. reasonable
care, good faith, bad faith, negligence
21.
or willful misconduct) shall be construed in accordance with the circumstances
and practices prevailing in the jurisdiction where such Foreign Sub-Custodian's
act or omission occurred. The Custodian shall be entitled to obtain, receive,
rely on and act upon the advice of counsel on all matters. The Custodian shall
be without liability for any action reasonably taken or omitted in good faith
pursuant to the advice of (i) counsel for the Fund or (ii) at the expense of the
Custodian, such other counsel as the Custodian may choose; provided, however, in
the event that such advice is sought for any matter other than a matter which
may be in dispute between the Custodian and the Fund, the Custodian shall
utilize its best efforts to provide advance notice to the Fund of the identity
of such counsel, and provided, further, with respect to the performance of any
action or omission of any action upon such advice, the Custodian shall be
required to conform to the applicable standard of care set forth in this
Agreement. For the avoidance of doubt, it is hereby specifically understood and
agreed that nothing in this section shall be construed as imposing upon the
Custodian any obligation to seek such advice of counsel. 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 Custodian's, its agent's or sub-custodian's or a
Foreign Sub-Custodian's negligence, bad faith or willful misconduct, 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
its duly authorized investment manager or investment adviser 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 Custodian's 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 Custodian's sub-custodians, nominees or agents or any consequential losses
arising out of such delay or failure to transfer such securities including
non-receipt of bonus, dividends and rights and other accretions or benefits;
(vi) delays or inability to perform its duties due to any disorder in market
infrastructure with respect to any particular security or Securities System; 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 implement and maintain reasonable disaster recovery and
business continuity procedures that are reasonably designed to recover data
processing systems, data communications facilities, information, data and other
business related functions of the Custodian in a manner and time frame
consistent with legal, regulatory and business requirements applicable to the
Custodian in its
22.
provision of services hereunder. In the event of any disaster which causes a
business interruption, the Custodian shall act in good faith and take reasonable
steps to minimize service interruptions.
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 (but not for the Custodian's, its
agent's or sub-custodian's or a Foreign Sub-Custodian's negligence, bad faith or
willful misconduct) in an amount and form reasonably 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
nominee's own negligent action, negligent failure to act, bad faith 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 Portfolio's assets to the extent necessary to obtain
reimbursement.
In no event shall any party hereto be liable for indirect, special or
consequential damages.
The indemnifications contained herein shall survive the
termination of this Agreement.
SECTION 16. EFFECTIVE PERIOD, TERMINATION AND AMENDMENT
a. This Agreement shall become effective as of the date first above-written and
shall remain in full force and effect for a period of three (3) years from such
effective date (the "INITIAL TERM"), and thereafter shall automatically continue
in full force and effect unless either party terminates this Agreement by
written notice to the other party at least ninety (90) days prior to the date of
termination.
b. During the Initial Term and thereafter, the Custodian may, at its discretion,
terminate the Agreement for cause with respect to (1) one or more Portfolios;
and/or (2) a Fund in its entirety by providing not less than 60 days prior
written notice to the Fund upon occurrence of any of the following termination
events:
(A) Fund has been convicted, pled guilty or pled no contest to criminal
conduct in a criminal proceeding;
(B) Fund has been found to have violated federal or state law in an
administrative or regulatory proceeding; provided such violation (1)
involves unethical conduct; and (2) Custodian
23.
reasonably believes that such violation would have a material
adverse impact on Custodian's ability to perform services under this
Agreement:
(C) Fund has encountered financial difficulties which are evidenced by
the authorization or commencement of, or involvement by way of
pleading, answer, consent or acquiescence in, a voluntary or
involuntary case under Title 11 of the United States Code, as from
time to time is in effect, or any applicable law, other that said
Title 11, of any jurisdiction relation to the liquidation or
reorganization of debtors or to the modification or alteration of
the rights of creditors;
(D) Fund has been terminated for cause by the Custodian pursuant to the
terms of (1) any fund accounting or administrative agreement between
Custodian or Fund, or (2) any fund accounting, custody or
administrative agreement between Custodian and Xxxxxxx Xxxxxx
Investment Management, Inc. ("CSIM") or any other investment company
(other than the Fund) advised by CSIM;
(E) CSIM has been terminated for cause by the Custodian pursuant to the
terms of any agreement between Custodian and CSIM;
(F) Fund attempts to assign this Agreement in violation of Section 18.3
of this Agreement; and
(G) Fund has committed a material breach of this Agreement, and such
breach has not been remedied by the Fund within sixty days written
notice of such breach by Custodian.
c. During the Initial Term and thereafter, Fund, at its discretion, may
terminate this agreement for cause with respect to (1) one or more Portfolios;
and/or (2) a Fund in its entirety by providing at least 60 days written notice
to Custodian upon the occurrence of any of the following termination events;
(A) Custodian has been convicted, pled guilty or pled no contest to
criminal conduct in any criminal proceeding in connection with the
provision of fund administration, fund accounting and/or custody
services to any client;
(B) Custodian has been found to have violated federal or state law in
any administrative or regulatory proceeding; provided such violation
(1) involves unethical behavior and (2) relates to the provision of
fund administration, fund accounting and/or custody services to any
client;
(C) Custodian has encountered financial difficulties which are evidenced
by the authorization or commencement of, or involvement by way of
pleading, answer, consent or acquiescence in, a voluntary or
involuntary case under Title 11 of the United States Code, as from
time to time is in effect, or any applicable law, other than said
Title 11, of any jurisdiction relating to the liquidation or
reorganization of debtors or to the modification or alteration of
the rights of creditors;
24.
(D) Custodian has been terminated by the Fund for cause pursuant to the
terms of (1) any fund administration or fund accounting agreement
between Custodian and Fund, or (2) any fund administration, custody
or fund accounting agreement between Custodian and CSIM or any
investment company (other than Fund) advised by CSIM;
(E) Custodian has been terminated by CSIM for cause pursuant to the
terms of any sub-administrative agreement between Custodian and or
its affiliates and CSIM;
(F) Custodian transfers fifty percent (50%) or more of any class of its
voting securities; (2) transfers all, or substantially all, of its
assets to a non-affiliate; or (3) attempts to assign this Agreement
in violation of Section 10.3 of this Agreement; and
(G) In Fund's reasonable opinion, Custodian has not achieved one or more
of the performance measures set forth in any Service Level Document
established pursuant to pursuant to Section 6 of this Agreement, and
a plan or revised plan has not been put into place in accordance the
following procedures: In the event that Fund reasonably believes
that the Custodian has not met one or more of the performance
measures set forth in any Service Level Document during any calendar
quarter or other period of measurement as may be set forth in any
Service Level Document, the Fund may, in its discretion, submit a
written deficiency notice to Custodian outlining the performance
deficiencies ("DEFICIENCY NOTICE"). Such Deficiency Notice must be
provided to Custodian within 20 days of the end of such quarter.
After receipt of such notice, Custodian shall present the Fund with
a written plan to address the deficiencies set forth in the
Deficiency Notice (the "PLAN"). Such Plan must be provided to Fund
within 30 days after receipt of the Deficiency Notice. If Custodian
fails to submit a Plan within such 30 day period, Fund may terminate
the Agreement upon 60 days written notice to the Custodian. The
Fund, in its discretion, may accept the Plan or reject the Plan
("REJECTION NOTICE"). Such Rejection Notice must be submitted to the
Custodian within 15 days after submission of the Plan. If Fund fails
to provide a Rejection Notice within such 15 days period, it shall
be presumed that Fund accepted the Plan. In the event, Fund submits
a Rejection Notice, Custodian shall submit a revised plan ("REVISED
PLAN") to the Fund. Such Revised Plan must be provided to Fund
within 30 days after provision of the Rejection Notice. If Custodian
fails to submit a Revised Plan within such 30 day period, Fund may
terminate the Agreement upon 60 days written notice to Custodian.
The Fund, in its sole discretion, may accept the Revised Plan or
reject the Revised Plan ("DENIAL NOTICE"). Any Denial Notice must be
submitted to Custodian within 15 days after provision of the Revised
Plan. If Fund fails to provide a Denial Notice within such 15 day
period, it shall be presumed that Fund accepted the Revised Plan. If
Fund provides a Denial Notice to Custodian, Fund may, in its sole
discretion, terminate this Agreement upon 60 days written notice to
Custodian. Such termination notice must be submitted to Custodian
within 60 days after provision of the Denial Notice.
(H) Custodian has committed a material breach of this Agreement and such
breach has not been remedied by the Custodian within sixty days
written notice of such breach by Fund.
25.
d. Termination of this Agreement with respect to any single given Portfolio or
Fund shall in no way affect the continued validity of this Agreement with
respect to any other Portfolio or Fund.
e. Upon termination of this Agreement, the Fund shall pay to the Custodian such
compensation and any reimbursable expenses as may be due and undisputed under
the terms hereof as of the date of such termination, including reasonable
out-of-pocket expenses associated with such termination. All out-of-pocket
expenses associated under this sub-paragraph for which the Custodian seeks
reimbursement must be pre-approved by the Fund in writing, such approval shall
not be unreasonable withheld.
f. This Agreement may be modified or amended from time to time by mutual written
agreement of the parties hereto.
SECTION 17. SUCCESSOR CUSTODIAN
If a successor custodian for one or more Portfolios shall be appointed by the
applicable Board, the Custodian shall, upon termination and receipt of Proper
Instructions, 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 or at the Underlying Transfer Agent.
If no such successor custodian shall be appointed, the Custodian shall, in like
manner, upon receipt of Proper Instructions, 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 Proper Instructions designating a successor custodian or
alternative arrangements 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 or at the Underlying Transfer Agent. 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 owing to
failure of any Fund to provide Proper Instructions as aforesaid, 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
26.
this Agreement relating to the duties and obligations of the Custodian shall
remain in full force and effect.
SECTION 18. GENERAL
SECTION 18.1 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 18.2 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 such Fund's
assets.
SECTION 18.3 ASSIGNMENT. This Agreement may not be assigned by (a) any
Fund without the written consent of the Custodian or (b) by the Custodian
without the written consent of each applicable Fund, except that any party may,
without such consent, assign to an entity controlling, controlled by or under
common control with such party or to a successor of all of or a substantial
portion of its business.
SECTION 18.4 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 interpretive or
additional provisions shall contravene any applicable federal or state
regulations or any provision of a Fund's Governing Documents. No interpretive or
additional provisions made as provided in the preceding sentence shall be deemed
to be an amendment of this Agreement.
SECTION 18.5 ADDITIONAL FUNDS. In the event that any management investment
company in addition to those listed on Appendix A hereto desires to have the
Custodian render services as custodian under the terms hereof, it shall so
notify the Custodian in writing, and if the Custodian agrees in writing to
provide such services, such management investment company shall become a Fund
hereunder and be bound by all terms and conditions and provisions hereof
including, without limitation, the representations and warranties set forth in
Section 18.7 below.
SECTION 18.6 ADDITIONAL PORTFOLIOS. In the event that any Fund establishes
one or more series of Shares in addition to those set forth on Appendix A hereto
with respect to which it desires to have the Custodian render services as
custodian under the terms hereof, it shall so notify the Custodian in writing,
and if the Custodian agrees in writing to provide such services, such series of
Shares shall become a Portfolio hereunder.
27.
SECTION 18.7 THE PARTIES. All references herein to the "Fund" are to each
of the management investment companies listed on Appendix A hereto, and each
management investment company made subject to this Agreement in accordance with
Section 18.5 above, individually, as if this Agreement were between such
individual Fund and the Custodian. In the case of a series corporation, trust or
other entity, all references herein to the "Portfolio" are to the individual
series or portfolio of such corporation, trust or other entity, or to such
corporation, trust or other entity 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 (a) it is duly
incorporated or organized and is validly existing in good standing in its
jurisdiction of incorporation or organization; (b) it has the requisite power
and authority under applicable law and its Governing Documents to enter into and
perform this Agreement; (c) all requisite proceedings have been taken to
authorize it to enter into and perform this Agreement; (d) this Agreement
constitutes its legal, valid, binding and enforceable agreement; and (e) 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 18.8 REMOTE ACCESS SERVICES ADDENDUM. The Custodian and each Fund
agree to be bound by the terms of the Remote Access Services Addendum hereto.
SECTION 18.9 CONFIDENTIALITY.
a. Definition of term "Fund Confidential Information." The term "FUND
CONFIDENTIAL INFORMATION" means any information that Fund discloses, whether in
writing, electronically or orally, to Custodian whether in tangible or
intangible form which is identified as confidential at the time of disclosure or
which by the circumstances of disclosure or nature of the information would be
considered to be confidential. By way of example and not limitation, Fund
Confidential Information includes: (i) any information concerning Fund's, its
agents or licensors' technology, such as systems, source code, databases,
hardware, software, programs, applications, engine protocols, routines, models,
displays and manuals, including, without limitation, the selection,
coordination, and arrangement of the contents thereof, and (ii) any information
concerning Fund's, its agents or licensors' financial or business plans or
operations, such as research activities and plans, marketing or sales plans,
pricing or pricing strategies, operational techniques, internal controls,
compliance policies, methods of operation, security procedures, strategic plans,
customer information, and unpublished financial information, including
information concerning revenues, profits and profit margins. Custodian agrees
that Fund will have no obligation to specifically identify by any notice or
other action any information to which the protection of this Agreement extends.
Without limiting the foregoing, to the extent disclosed to the Custodian,
portfolio holdings information of the Fund shall be deemed to be Confidential
Information of the Fund until such time as such portfolio holdings information
shall made in a public filing by the Fund. The Custodian shall not purchase or
sell securities or other investments on the basis of confidential portfolio
holdings information of the Fund provided to the Custodian and shall take
reasonable steps to prevent any employee or agent of Custodian from purchasing
or selling securities or other investments on the same basis.
28.
b. Restrictions on Use. Without the prior written consent of Fund,
Custodian will not use any portion of Fund Confidential Information for any
purpose other than for the services provided under this Agreement. Custodian
further agrees that:
(i) it will hold Fund Confidential Information of Fund in the strictest
confidence;
(ii) it will exercise the same care with respect to Fund Confidential
Information as it exercises with respect to its own proprietary and
confidential information;
(iii) it will not, without Fund's prior written consent, copy or disclose
to any third party any portion thereof;
(iv) it will notify immediately Fund of any unauthorized disclosure or
use unless in and ownership of Fund Confidential Information
resulting from such unauthorized disclosure or use by or through
Custodian; and
(v) it will restrict dissemination of Fund Confidential Information to
only those persons within or related to its organization who are
involved in the delivery services provided under this Agreement, to
Custodian's regulatory authorities as required to comply with such
regulatory authorities' request or order, and to Custodian's
examiners, auditors, directors and legal counsel to the extent
Custodian believes the same is reasonably required provided that
Custodian makes reasonable effort to notify such parties as to the
confidential nature of the Fund Confidential Information.
c. Exceptions. The foregoing shall not prohibit or limit Custodian's use,
disclosure, reproduction or dissemination of Fund Confidential Information
which:
(i) is or becomes public domain information or material through no fault
or breach on the part of Custodian;
(ii) as demonstrated by the written records of Custodian or otherwise,
was already lawfully known (without restriction on disclosure) to
Custodian prior to the information being disclosed to Custodian by
Fund or any representative of Fund;
(iii) has been or is hereafter rightfully furnished to Custodian without
restriction on disclosure by the Fund or a third person lawfully in
possession thereof;
(iv) has been independently developed, by or for Custodian, without
reference to Fund Confidential Information;
(v) is requested or required to be disclosed pursuant to any legal or
regulatory proceeding, investigation, audit, examination, subpoena,
civil investigative demand or other similar process, where required
by law, regulation rule or self-regulatory organization rule,
provided that, unless prohibited from doing so in such
29.
circumstance, the Custodian notifies Fund as promptly as possible so
that Fund may to have a reasonable opportunity to obtain a
protective order or other form of protection against disclosure.
Notwithstanding any such disclosure by Custodian, such disclosure
will not otherwise affect Custodian's obligations hereunder with
respect to Fund Confidential Information so disclosed which is
retained by Custodian;
(vi) is disclosed by the Custodian with the prior written consent of the
applicable Fund to disclose, which consent shall not be unreasonably
withheld; or
(vi) is Fund or Portfolio data aggregated by the Custodian with similar
data of other customers of the Custodian ("AGGREGATED DATA") for the
purposes of the Custodian's construction of statistical models so
long as such Aggregated Data represents such a sufficiently large
sample that no Fund or Portfolio data can be identified either
directly or by inference or implication.
Any Fund Confidential Information in the possession of Custodian that has been
disclosed to it by Fund or any representative of Fund that is not within any of
the exceptions above shall be considered confidential unless the Custodian may
demonstrate otherwise by records, documentation or other reasonable means.
d. Equitable Relief. Custodian agrees and acknowledges that any breach of
this Section 18.9 may cause Fund irreparable harm for which monetary damages
would be inadequate. Accordingly, Fund will be entitled to seek injunctive or
other equitable relief to remedy any threatened or actual breach of this Section
18.9 by Custodian, as well as monetary damages.
e. No Publicity. No party hereto will announce or disclose the existence
of this Agreement, or its contents to any third party without the prior written
consent of the other or except as may be required by law, in which case the
party required to make such a disclosure will give the other party the maximum
feasible prior notice of such disclosure.
SECTION 18.10 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: [NAME OF FUND]
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxx, President
Telephone: 000-000-0000
Telecopy: 000-000-0000
30.
To the Custodian: STATE STREET BANK AND TRUST COMPANY
0000 Xxxxxxxx Xxxxx
Xxxxx Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Vice President
Telephone: 000-000-0000
Telecopy: 000-000-0000
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 18.11 COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original, and all such
counterparts taken together shall constitute one and the same Agreement.
SECTION 18.12 SEVERABILITY. If any provision or provisions of this
Agreement shall be held to be invalid, unlawful or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired.
SECTION 18.13 REPRODUCTION OF DOCUMENTS. This Agreement and all schedules,
addenda, exhibits, appendices, attachments and amendments hereto may be
reproduced by any photographic, photostatic, microfilm, 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.
31.
SECTION 18.14 SHAREHOLDER COMMUNICATIONS ELECTION. 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 each Fund to indicate whether it authorizes
the Custodian to provide such Fund's name, address, and share position to
requesting companies whose securities the Fund owns. If a Fund tells the
Custodian "no," the Custodian will not provide this information to requesting
companies. If a 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 a Fund's protection,
the Rule prohibits the requesting company from using the Fund's name and address
for any purpose other than corporate communications. Please indicate below
whether the Fund consents or objects by checking one of the alternatives below.
YES [ ] The Custodian is authorized to release the Fund's name, address, and
share positions.
NO [X] The Custodian is not authorized to release the Fund's name, address,
and share positions.
Section 18.15 MASSACHUSETTS BUSINESS TRUST. With respect to any Fund which
is a party to this Agreement and which is organized as a Massachusetts business
trust (in each case a "TRUST"), the term "Fund" (as used throughout this
Agreement) means and refers to the trustees from time to time serving under the
applicable trust agreement of such Trust, as the same may be amended from time
to time (the "DECLARATION OF TRUST"). It is expressly agreed that the
obligations of any such Trust hereunder shall not be binding upon any of the
trustees, shareholders, nominees, officers, agents or employees of such Trust
personally, but bind only the trust property of the Trust as set forth in the
applicable Declaration of Trust. In the case of each Trust, the execution and
delivery of this Agreement on behalf of the Trust has been authorized by the
trustees, and signed by an authorized officer of the Trust, in each case acting
in such capacity and not individually, and neither such authorization by the
trustees nor such execution and delivery by such officer shall be deemed to have
been made by any of them individually, but shall only bind the trust property of
the Trust as provided in its Declaration of Trust.
32.
SIGNATURE PAGE
IN WITNESS WHEREOF, each of the parties has caused this instrument to be
executed in its name and behalf by its duly authorized representative and its
seal to be hereunder affixed as of the date first above-written.
FUND SIGNATURE ATTESTED TO BY: EACH OF THE ENTITIES SET FORTH ON
APPENDIX A HERETO
By: /s/ Xxxxxxx Xxxxxxx By: /s/ Xxxxxx Xxxx
-------------------------- ------------------------------
Name: Xxxxxxx Xxxxxxx Xxxxxx Xxxx
Title: VP Fund Admin Treasurer and Chief Financial Officer
SIGNATURE ATTESTED TO BY: STATE STREET BANK AND TRUST COMPANY
By: /s/ Xxxxxxxxx X. Poster By: /s/ Xxxxxx X. Xxxxxx
-------------------------- ------------------------------
Xxxxxxxxx X. Poster Xxxxxx X. Xxxxxx
Vice President and Counsel Executive Vice President
33.
APPENDIX A
TO
MASTER CUSTODIAN AGREEMENT
MANAGEMENT INVESTMENT COMPANIES REGISTERED WITH THE SEC AND PORTFOLIOS THEREOF,
IF ANY
LAUDUS TRUST
Laudus Xxxxxxxxx International Equity Fund
Laudus Xxxxxxxxx International Small Capitalization Fund
Laudus Xxxxxxxxx U.S. Discovery Fund
Laudus Xxxxxxxxx U.S. Large Capitalization Fund
Laudus Xxxxxxxxx U.S. Large Capitalization Growth Fund
Laudus Xxxxxxxxx U.S. Large Capitalization Value Fund
Laudus Xxxxxxxxx U.S. Small Capitalization Fund
34.
SCHEDULE A
STATE STREET
GLOBAL CUSTODY NETWORK
SUBCUSTODIANS
COUNTRY SUBCUSTODIAN
Argentina Citibank, N.A.
Australia Westpac Banking Corporation
Citibank Pty. Limited
Austria Erste Bank der Osterreichischen Sparkassen AG
Bahrain HSBC Bank Middle East
(as delegate of the Hongkong and Shanghai Banking
Corporation Limited)
Bangladesh Standard Chartered Bank
Belgium BNP Paribas Securities Services, S.A.
Benin via Societe Generale de Banques en Cote d'Ivoire,
Abidjan, Ivory Coast
Bermuda The Bank of Bermuda Limited
Botswana Barclays Bank of Botswana Limited
Brazil Citibank, N.A.
Bulgaria ING Bank N.V.
Burkina Faso via Societe Generale de Banques en Cote d'Ivoire,
Abidjan, Ivory Coast
Canada State Street Trust Company Canada
Cayman Islands Scotiabank & Trust (Cayman) Limited
Chile BankBoston, N.A.
09/30/05 1
SCHEDULE A
STATE STREET
GLOBAL CUSTODY NETWORK
SUBCUSTODIANS
COUNTRY SUBCUSTODIAN
People's Republic The Hongkong and Shanghai Banking Corporation Limited,
of China Shanghai and Shenzhen branches
Colombia Cititrust Colombia S.A. Sociedad Fiduciaria
Costa Rica Banco BCT S.A.
Croatia Privredna Banka Zagreb d.d
Cyprus Cyprus Popular Bank Ltd.
Czech Republic Ceskoslovenska Obchodni Banka, A.S.
Denmark Skandinaviska Enskilda Bankken AB, Sweden (operating
through its Copenhagen branch)
Ecuador Banco de la Produccion S.A. PRODUBANCO
Egypt HSBC Bank Egypt S.A.E.
(as delegate of The Hongkong and Shanghai Banking
Corporation Limited)
Estonia AS Hansabank
Finland Nordea Bank Finland Plc.
France BNP Paribas Securities Services, S.A.
Deutsche Bank AG, Netherlands (operating through its
Paris branch)
Germany Deutsche Bank AG
Ghana Barclays Bank of Ghana Limited
Greece National Bank of Greece S.A.
09/30/05 2
SCHEDULE A
STATE STREET
GLOBAL CUSTODY NETWORK
SUBCUSTODIANS
COUNTRY SUBCUSTODIAN
Guinea-Bissau via Societe Generale de Banques en Cote d'Ivoire,
Abidjan, Ivory Coast
Hong Kong Standard Chartered Bank (Hong Kong) Limited
Hungary HVB Bank Hungary Rt.
Iceland Kaupthing Bank hf.
India Deutsche Bank AG
The Hongkong and Shanghai Banking Corporation Limited
Indonesia Deutsche Bank AG
Ireland Bank of Ireland
Israel Bank Hapoalim B.M.
Italy BNP Paribas Securities Services, S.A.
Ivory Coast Societe Generale de Banques en Cote d'Ivoire
Jamaica Bank of Nova Scotia Jamaica Ltd.
Japan Mizuho Corporate Bank Ltd.
Sumitomo Mitsui Banking Corporation
Jordan HSBC Bank Middle East
(as delegate of the Hongkong and Shanghai Banking
Corporation Limited)
Kazakhstan HSBC Bank Kazakhstan
(as delegate of the Hongkong and Shanghai Banking
Corporation Limited)
09/30/05 3
SCHEDULE A
STATE STREET
GLOBAL CUSTODY NETWORK
SUBCUSTODIANS
COUNTRY SUBCUSTODIAN
Kenya Barclays Bank of Kenya Limited
Republic of Korea Deutsche Bank AG
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 SEB Vilniaus Bankas AB
Malaysia Standard Chartered Bank Malaysia Berhad
Mali via Societe Generale de Banques en Cote d'Ivoire,
Abidjan, Ivory Coast
Malta HSBC Bank Malta Plc.
Mauritius The Hongkong and Shanghai Banking Corporation Limited
Mexico Banco Nacional de Mexico S.A.
Morocco Attijariwafa bank
Namibia Standard Bank Namibia Limited
Netherlands Deutsche Bank N.V.
KAS BANK N.V.
New Zealand Westpac Banking Corporation
09/30/05 4
SCHEDULE A
STATE STREET
GLOBAL CUSTODY NETWORK
SUBCUSTODIANS
COUNTRY SUBCUSTODIAN
Niger via Societe Generale de Banques en Cote d'Ivoire,
Abidjan, Ivory Coast
Nigeria Stanbic Bank Nigeria Limited
Norway Nordea Bank Norge ASA
Oman HSBC Bank Middle East Limited
(as delegate of The Hongkong and Shanghai Banking
Corporation Limited)
Pakistan Deutsche Bank AG
Palestine HSBC Bank Middle East Limited
(as delegate of The Hongkong and Shanghai Banking
Corporation Limited)
Panama HSBC Bank (Panama) S.A.
Peru Citibank del Peru, S.A.
Philippines Standard Chartered Bank
Poland Bank Handlowy w Warszawie S.A.
Portugal Banco Comercial Portugues S.A.
Puerto Rico Citibank N.A.
Qatar HSBC Bank Middle East Limited
(as delegate of The Hongkong and Shanghai Banking
Corporation Limited)
Romania ING Bank N.V.
Russia ING Bank (Eurasia) ZAO, Moscow
09/30/05 5
SCHEDULE A
STATE STREET
GLOBAL CUSTODY NETWORK
SUBCUSTODIANS
COUNTRY SUBCUSTODIAN
Senegal via Societe Generale de Banques en Cote d'Ivoire,
Abidjan, Ivory Coast
Serbia HVB Bank Serbia and Montenegro a.d.
Singapore DBS Bank Limited
United Overseas Bank Limited
Slovak Republic Ceskoslovenska Obchodni Banka, A.S., pobocka zahranicnej
banky v SR
Slovenia Bank Austria Creditanstalt d.d. - Ljubljana
South Africa Nedbank Limited
Standard Bank of South Africa Limited
Spain Santander Central Hispano Investment S.A.
Sri Lanka The Hongkong and Shanghai Banking Corporation Limited
Swaziland Standard Bank Swaziland Limited
Sweden Skandinaviska Enskilda Xxxxxx XX
Switzerland UBS AG
Taiwan - R.O.C. Central Trust of China
Thailand Standard Chartered Bank
Togo via Societe Generale de Banques en Cote d'Ivoire,
Abidjan, Ivory Coast
Trinidad & Tobago Republic Bank Limited
09/30/05 6
SCHEDULE A
STATE STREET
GLOBAL CUSTODY NETWORK
SUBCUSTODIANS
COUNTRY SUBCUSTODIAN
Tunisia Banque Internationale Arabe de Tunisie
Turkey Citibank, A.S.
Uganda Barclays Bank of Uganda Limited
Ukraine ING Bank Ukraine
United Arab Emirates HSBC Bank Middle East Limited
(as delegate of The Hongkong and Shanghai Banking
Corporation Limited)
United Kingdom State Street Bank and Trust Company, United kingdom
Branch
Uruguay BankBoston, N.A.
Venezuela Citibank, N.A.
Vietnam The Hongkong and Shanghai Banking Corporation Limited
Zambia Barclays Bank of Zambia Plc.
Zimbabwe Barclays Bank of Zimbabwe Limited
09/30/05 7
SCHEDULE B
STATE STREET
GLOBAL CUSTODY NETWORK
DEPOSITORIES OPERATING IN NETWORK MARKETS
COUNTRY DEPOSITORIES
Argentina Caja de Valores S.A.
Australia Austraclear Limited
Austria Oesterreichisehe Kontrollbank AG
(Wertpapiersammelbank Division)
Bahrain Clearing, Settlement, and Depository System of the
Bahrain Stock Exchange
Bangladesh Central Depository Bangladesh Limited
Belgium Banque Nationale de Belgique
Caisse Interprofessionnelle de Depots et de Virements de
Titres, S.A.
Benin Depositaire Central - Banque de Reglement
Bermuda Bermuda Securities Depository
Brazil Central de Custodia e de Liquidacao Financeira de
Titulos Privados (CETIP)
Companhia Brasileira de Liquidacao e Custodia
Sistema Especial de Liquidacao e de Custodia (SELIC)
Bulgaria Bulgarian National Bank
Central Depository AD
Burkina Faso Depositaire Central - Banque de Reglement
Canada The Canadian Depository for Securities Limited
Chile Deposito Central de Valores S.A.
09/30/05 1
SCHEDULE B
STATE STREET
GLOBAL CUSTODY NETWORK
DEPOSITORIES OPERATING IN NETWORK MARKETS
COUNTRY DEPOSITORIES
People's Republic China Securities Depository and Clearing Corporation
of China Limited Shanghai Branch
China Securities Depository and Clearing Corporation
Limited Shenzhen Branch
Colombia Deposito Central de Valores
Deposito Centralizado de Valores de Colombia S..A.
(DECEVAL)
Costa Rica Central de Valores S.A.
Croatia Sredisnja Depozitarna Agencija d.d.
Cyprus Central Depository and Central Registry
Czech Republic Czech National Bank
Stredisko cennych papiru - Ceska republika
Denmark Vaerdipapircentralen (Danish Securities Center)
Egypt Misr for Clearing, Settlement, and Depository S.A.E.
Central Bank of Egypt
Estonia AS Eesti Vaartpaberikeskus
Finland Suomen Arvopaperikeskus
France Euroclear France
Germany Clearstream Banking AG, Frankfurt
09/30/05 2
SCHEDULE B
STATE STREET
GLOBAL CUSTODY NETWORK
DEPOSITORIES OPERATING IN NETWORK MARKETS
COUNTRY DEPOSITORIES
Greece Apothetirion Titlon AE - Central Securities Depository
Bank of Greece,
System for Monitoring Transactions in Securities in
Book-Entry Form
Guinea-Bissau Depositaire Central - Banque de Reglement
Hong Xxxx Xxxxxxx Xxxxxxxxxxxx Xxxx
Xxxx Xxxx Securities Clearing Company Limited
Hungary Kozponti Elszamolohaz es Ertektar (Budapest) Rt. (KELER)
Iceland Icelandic Securities Depository Limited
India Central Depository Services (India) Limited
National Securities Depository Limited
Reserve Bank of India
Indonesia Bank Indonesia
PT Kustodian Sentral Efek Indonesia
Israel Tel Aviv Stock Exchange Clearing House Ltd. (TASE
Clearinghouse)
Italy Monte Titoli S.p.A.
Ivory Coast Depositaire Central - Banque de Reglement
Jamaica Jamaica Central Securities Depository
Japan Bank of Japan - Net System
Japan Securities Depository Center (JASDEC) Incorporated
09/30/05 3
SCHEDULE B
STATE STREET
GLOBAL CUSTODY NETWORK
DEPOSITORIES OPERATING IN NETWORK MARKETS
COUNTRY DEPOSITORIES
Jordan Securities Depository Center
Kazakhstan Central Securities Depository
Kenya Central Depository and Settlement Corporation Limited
Central Bank of Kenya
Republic of Korea Korea Securities Depository
Latvia Latvian Central Depository
Lebanon Banque du Liban
Custodian and Clearing Center of Financial Instruments
for Lebanon and the Middle East (Midclear) X.X.X.
Lithuania Central Securities Depository of Lithuania
Malaysia Bank Negara Malaysia
Bursa Malaysia Depository Sdn. Bhd.
Mali Depositaire Central - Banque de Reglement
Malta Central Securities Depository of the Malta Stock
Exchange
Mauritius Bank of Mauritius
Central Depository and Settlement Co. Ltd.
Mexico S.D. Indeval, S.A. de C.V.
Morocco Maroclear
09/30/05 4
SCHEDULE B
STATE STREET
GLOBAL CUSTODY NETWORK
DEPOSITORIES OPERATING IN NETWORK MARKETS
COUNTRY DEPOSITORIES
Namibia Bank of Namibia
Netherlands Euroclear Nederland
New Zealand New Zealand Central Securities Depository Limited
Niger Depositaire Central - Banque de Reglement
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
Panama Central Latinoamericana de Valores, S.A. (LatinClear)
Peru Caja de Valores y Liquidaciones, Institucion de
Compensacion y Liquidacion de Valores S.A.
Philippines Philippine Central Depository, Inc.
Registry of Scripless Securities (XXXX) of the Bureau of
Treasury
09/30/05 5
SCHEDULE B
STATE STREET
GLOBAL CUSTODY NETWORK
DEPOSITORIES OPERATING IN NETWORK MARKETS
COUNTRY DEPOSITORIES
Poland Rejestr Papierow Wartosciowych
Krajowy Depozyt Papierow Wartosciowych S.A.
Portugal INTERBOLSA - Sociedade Gestora de Sistemas de Liquidacao
e de Sistemas Centralizados de Valores Mobiliarios, S.A.
Qatar Central Clearing and Registration (CCR), a
department of the Doha Securities Market
Romania Bucharest Stock Exchange Registry Division
National Bank of Romania
National Securities Clearing, Settlement and Depository
Company
Russia Vneshtorgbank, Bank for Foreign Trade of the Russian
Federation
Senegal Depositaire Central - Banque de Reglement
Serbia Central Registrar and Central Depository for Securities
Singapore The Central Depository (Pte) Limited
Monetary Authority of Singapore
Slovak Republic Naodna banka slovenska
Centralny depozitar cennych papierov SR, a.s.
Slovenia KDD - Centralna klirinsko depotna xxxxxx x.x.
South Africa Share Transactions Totally Electronic (STRATE) Ltd.
Spain IBERCLEAR
09/30/05 6
SCHEDULE B
STATE STREET
GLOBAL CUSTODY NETWORK
DEPOSITORIES OPERATING IN NETWORK MARKETS
COUNTRY DEPOSITORIES
Sri Lanka Central Depository System (Pvt) Limited
Sweden Vardepapperscentralen VPC AB
(Swedish Central Securities Depository)
Switzerland SegaIntersettle AG (SIS)
Taiwan - R.O.C. Taiwan Securities Central Depository Company Limited
Thailand Bank of Thailand
Thailand Securities Depository Company Limited
Togo Depositaire Central - Banque de Reglement
Trinidad and Tobago Trinidad and Tobago Central Bank
Tunisia Societe Tunisienne Interprofessionelle pour la
Compensation et de Depots des Valeurs Mobilieres
(STICODEVAM)
Turkey Central Bank of Turkey
Takas ve Saklama Bankasi A.S. (TAKASBANK)
Uganda Bank of Uganda
Ukraine Mizhregionalny Fondovy Souz
National Bank of Ukraine
United Arab Emirates Clearing and Depository System,
a department of the Dubai Financial Market
United Kingdom CrestCo.
09/30/05 7
SCHEDULE B
STATE STREET
GLOBAL CUSTODY NETWORK
DEPOSITORIES OPERATING IN NETWORK MARKETS
COUNTRY DEPOSITORIES
Uruguay Banco Central del Uruguay
Venezuela Banco Central de Venezuela
Caja Venezolana de Valores
Vietnam Securities Registration, Clearing and Settlement,
Depository Department of the Securities Trading Center
Zambia Bank of Zambia
XxXX Central Shares Depository Limited
TRANSNATIONAL
Euroclear
Clearstream Banking, S.A.
09/30/05 8
SCHEDULE C
MARKET INFORMATION
PUBLICATION/TYPE OF INFORMATION BRIEF DESCRIPTION
------------------------------- -----------------
(scheduled frequency)
The Guide to Custody in World Markets An overview of settlement and safekeeping procedures,
(hardcopy annually and regular custody practices and foreign investor considerations
website updates) for the markets in which State Street offers custodial
services.
Global Custody Network Review Information relating to Foreign Sub-Custodians in State
(annually) Street's Global Custody Network. The Review stands as an
integral part of the materials that State Street
provides to its U.S. mutual fund clients to assist them
in complying with SEC Rule 17f-5. The Review also gives
insight into State Street's market expansion and Foreign
Sub-Custodian selection processes, as well as the
procedures and controls used to monitor the financial
condition and performance of our Foreign Sub-Custodian
banks.
Securities Depositor Review Custody risk analyses of the Foreign Securities
(annually) Depositories presently operating in Network markets.
This publication is an integral part of the materials
that State Street provides to its U.S. mutual fund
clients to meet informational obligations created by SEC
Rule l7f-7.
Global Legal Survey With respect to each market in which State Street offers
(annually) 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) a
fund's ability to recover in the event of bankruptcy or
insolvency of a Foreign Sub-Custodian or Foreign
Securities System, (iii) a 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 Agreement Copies of the contracts that State Street has entered
(annually) into with each Foreign Sub-Custodian that maintains U.S.
mutual fund assets in the markets in which State Street
offers custodial services.
Global Market Bulletin Information on changing settlement and custody
(daily or as necessary) conditions in markets where State Street offers
custodial services. Includes changes in market and tax
regulations, depository developments, dematerialization
information, as well as other market changes that may
impact State Street's clients.
Foreign Custody Advisories For those markets where State Street offers custodial
(as necessary) services that exhibit special risks or infrastructures
impacting custody, State Street issues market advisories
to highlight those unique market factors which might
impact our ability to offer recognized custody service
levels.
Material Change Notices Informational letters and accompanying materials
(presently on a quarterly confirming State Street's foreign custody arrangements,
basis or as otherwise necessary) including a summary of material changes with Foreign
Sub-Custodians that have occurred during the previous
quarter. The notices also identify any material changes
in the custodial risks associated with maintaining assets
with Foreign Securities Depositories.
09/30/05
REMOTE ACCESS SERVICES ADDENDUM
TO
MASTER FUND ACCOUNTING AND SERVICES AGREEMENT
ADDENDUM to that certain Master Fund Accounting and Services Agreement
dated as of October 1, 2005 (the "Accounting Agreement") by and among each
management investment company identified on Appendix A thereto and made subject
thereto pursuant to Section 11.5 thereof (each, a "Customer") and State Street
Bank and Trust Company, including its subsidiaries and affiliates ("State
Street").
State Street has developed and utilizes proprietary accounting and other
systems in conjunction with the 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
State Street agrees to provide the Customer, and its designated investment
advisors, consultants or other third parties authorized by State Street
("Authorized Designees") with access to In~Sight(SM) 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 fee schedule in effect from
time to time between the parties. 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
i
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,
including data from third party sources, available through use of the System or
the Remote Access Services, to be published, 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 your or your 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
including, but not limited to, the use of the Internet, 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, results obtained, regulatory reports and statements
produced using the Remote Access Services. Except with respect to its
obligations with respect to infringement hereunder, State Street will not he
liable to the Customer or its Authorized Designees for any direct damages
arising out of or in any way connected with the System or the Remote Access
Services. State Street and its relevant licensors will not be liable to the
Customer or its Authorized Designees for any indirect, special, incidental,
punitive or consequential damages arising out of or in any way connected with
the System or the Remote Access Services. Neither party shall 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 December 31, 2099, and if any changes
are required, State Street will make the changes to its
ii
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 the Customer 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 patent or
copyright or misappropriation of a trade secret, and will hold the Customer
harmless from any direct damages incurred by the Customer and resulting from any
such action relating to proprietary intellectual property of State Street,
provided that, in any such event, 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 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 any applicable
patent or copyright or trade secret laws, 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. The foregoing shall be the Customer's sole remedy for any
intellectual property infringement claim relating to the System or the Remote
Access Services.
Termination
Either party to the Accounting 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 Accounting
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 constitute the entire understanding of the
parties to the Accounting 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 Accounting Agreement, the Customer (a) confirms to State
Street that it informs all Authorized Designees of the terms of this Addendum;
(b) accepts responsibility for its and its
iii
Authorized Designees' compliance with the terms of this Addendum; and (c)
indemnifies and holds State Street harmless from and against any and all costs,
expenses, losses, damages, charges, counsel fees, payments and liabilities
arising from any failure of the Customer or any of its Authorized Designees to
abide by the terms of this Addendum.
iv
