EXHIBIT NO. 99.7(a)
CUSTODIAN AGREEMENT
AGREEMENT made as of the 18th day of December, 2006 between each of
the Investment Companies listed on Appendix A hereto, as the same may be
amended from time to time (each a "Fund" and collectively the "Funds") and
State Street Bank and Trust Company (the "Custodian"), and effective as to each
Fund as set forth on Appendix A.
W I T N E S S E T H
WHEREAS, each Fund is or may be organized with one or more series of
shares, each of which shall represent an interest in a separate portfolio of
cash, securities and other assets (all such existing and additional series now
or hereafter listed on Appendix A attached hereto being hereinafter referred to
individually, as a "Portfolio," and collectively, as the "Portfolios"); and
WHEREAS, each Fund desires to appoint the Custodian as custodian on
behalf of each of its Portfolios in accordance with the provisions of the
Investment Company Act of 1940, as amended (the "1940 Act"), and the rules and
regulations thereunder, under the terms and conditions set forth in this
Agreement, and the Custodian has agreed so to act as custodian.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
APPOINTMENT OF CUSTODIAN
On behalf of each of its Portfolios, each Fund hereby employs and
appoints the Custodian as a custodian, subject to the terms and provisions of
this Agreement. Each Fund shall deliver to the Custodian, or shall cause to be
delivered to the Custodian, cash, securities and other assets owned by each of
its Portfolios from time to time during the term of this Agreement and shall
specify to which of its Portfolios such cash, securities and other assets are
to be specifically allocated. The Custodian hereby accepts its appointment as
custodian, subject to the terms and provisions of this Agreement, and agrees to
perform the services described herein in accordance with the standard of care
set forth in Section 5.01(a) hereof. The Custodian shall not be responsible for
any property of any Portfolio held or received by such Portfolio (i) not
delivered to the Custodian, or (ii) that is delivered out pursuant to Proper
Instructions (as hereinafter defined).
ARTICLE II
POWERS AND DUTIES OF CUSTODIAN
As custodian, the Custodian shall have and perform the powers and
duties set forth in this Article II. Pursuant to and in accordance with Article
IV hereof, the Custodian may appoint one or more Subcustodians or may maintain
assets with one or more Eligible Securities Depositories (each as hereinafter
defined) to exercise the powers and perform the duties of the Custodian set
forth in this Article II and references to the Custodian in this Article II
shall include any Subcustodian or Eligible Securities Depository so appointed
or utilized, as applicable.
Section 2.01. Safekeeping. The Custodian shall keep safely all cash,
securities and other assets of each Fund's Portfolios delivered to the
Custodian and, on behalf of such Portfolios, the Custodian shall, from time to
time, accept delivery of cash, securities and other assets for safekeeping.
Section 2.02. Manner of Holding Securities and Other Assets.
(a) Except to the extent precluded by Section 8-501(d) of the
Uniform Commercial Code as in effect in The Commonwealth of
Massachusetts ("UCC"), the Custodian shall hold all securities and
other assets, other than cash and Bank Loans (as hereinafter defined),
of a Fund's Portfolio that are delivered to it hereunder in a
"securities account" with the Custodian for and in the name of such
Portfolio and shall treat all such assets, other than cash and Bank
Loans, as "financial assets" as those terms are used in the UCC. The
Custodian shall at all times hold securities or other financial assets
held for each Fund's Portfolios either: (i) by physical possession of
the certificated securities or instruments representing such financial
assets, in either registered or bearer form; or (ii) in book-entry
form by maintaining "security entitlements," within the meaning of the
UCC, with respect to such financial assets with (A) a Securities
System (as hereinafter defined) in accordance with the provisions of
Section 2.23(a) below or (B) an Eligible Securities Depository in
accordance with the provisions of Section 2.23(b) below. The standards
for the performance of the duties and obligations of the Custodian
under UCC Article 8, including without limitation Section 8-504
through Section 8-508, with respect to securities entitlements of a
Fund or its Portfolios shall be as set forth under this Agreement.
(b) The Custodian shall at all times hold registered
securities of each Portfolio in the name of the Custodian, the
Portfolio or a nominee of either of them, unless specifically directed
by Proper Instructions (as hereinafter defined) to hold such
registered securities in so-called street name; provided that, in any
event, all such securities and other assets shall be held in an
account of the Custodian containing only assets of a Portfolio, or
only assets held by the Custodian as a fiduciary or custodian for
customers; and provided further, that the records of the Custodian
shall indicate at all times the Portfolio or other customer for which
such securities and other assets are held in such account and the
respective interests therein.
(c) Notwithstanding the provisions of the foregoing
paragraphs of this Section 2.02, the Custodian shall have certain
responsibilities with respect to the shares (the "Underlying Shares")
of certain open-end management investment companies managed by
Massachusetts Financial Services Company ("MFS") or its affiliates or
successors or another investment adviser (the "Underlying Funds")
owned by one or more of the MFS Fund of Funds as listed on Appendix D
attached hereto, as the same may be amended from time to time in
accordance with the provisions of Section 9.07(d) hereof (each a "Fund
of Funds Portfolio" and collectively the "Fund of Funds Portfolios"),
and deposited and/or maintained in an account or accounts maintained
directly with the transfer agent or a designated sub-transfer agent of
each such Underlying Fund (an "Underlying Fund Transfer Agent"),
subject to and in accordance with the following provisions:
(i) Upon receipt of a confirmation or statement from an
Underlying Fund Transfer Agent that such Underlying Fund 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 Fund of
Funds Portfolio, the Custodian (A) shall identify by book-entry that
such Underlying Shares are being held by it for the benefit of the
Fund of Funds Portfolio in the Custodian's name or its nominee's name,
as the custodian for such Fund of Funds Portfolio and (B) shall
maintain copies of such confirmations or statements received from an
Underlying Fund Transfer Agent, which shall be provided to the Fund of
Funds Portfolio upon its reasonable request made from time to time,
but in no event more frequently than monthly.
(ii) The Custodian shall provide to any Fund such reports
regarding the Custodian's system of internal accounting controls in
the manner as is set forth in Section 2.28 hereof.
(iii) In respect of the purchase of Underlying Shares for the
account of a Fund of Funds Portfolio, upon receipt of Proper
Instructions, the Custodian shall pay out monies of such Fund of Funds
Portfolio as so directed, and record such payment from the account of
such Fund of Funds Portfolio on the Custodian's books and records.
(iv) In respect of the sale or redemption of Underlying
Shares for the account of a Fund of Funds Portfolio, upon receipt of
Proper Instructions, the Custodian shall transfer such Underlying
Shares as so directed, record such transfer from the account of such
Fund of Funds 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 Fund of Funds Portfolio on the Custodian's
books and records.
(v) The Custodian shall not be liable to any Fund for any
loss or damage to the Fund or any Fund or Funds Portfolio resulting
from the maintenance of Underlying Shares with the Underlying Fund
Transfer Agent except for losses resulting directly from the fraud,
negligence or willful misconduct of the Custodian or any of its agents
or of any of its or their employees.
(vi) With respect to Underlying Shares, the holding of
confirmation statements that identify the Underlying Shares as being
recorded in the Custodian's name on behalf of the Fund of Fund
Portfolios will be deemed custody for the purposes hereof.
Section 2.03. Security Purchases. Upon receipt of Proper Instructions,
the Custodian shall pay for and receive securities purchased for the account of
a Portfolio, provided that, payment shall be made by the Custodian only upon
receipt of the securities by: (1) the Custodian; (2) a clearing corporation of
a national securities exchange of which the Custodian is a member; (3) a
Securities System; or (4) an Eligible Securities Depository. Notwithstanding
the foregoing, upon receipt of Proper Instructions: (i) in the case of a
repurchase agreement, the Custodian may release funds to a Securities System
prior to the receipt of advice from the Securities System that the securities
underlying such repurchase agreement have been transferred by book-entry into
the Account (as hereinafter defined) maintained with such Securities System by
the Custodian, provided that, the Custodian's instructions to the Securities
System require that the Securities System may make payment of such funds to the
other party to the repurchase agreement only upon transfer by book-entry of the
securities underlying the repurchase agreement into the Account; (ii) in the
case of time deposits, call account deposits, currency deposits, and other
deposits, foreign exchange transactions, futures contracts or options, pursuant
to Sections 2.09, 2.10, 2.12 and 2.13 hereof, the Custodian may make payment
therefor before receipt of an advice or confirmation evidencing said deposit or
entry into such transaction; (iii) in the case of the purchase of securities,
the settlement of which occurs outside of the United States of America, the
Custodian may make payment therefor and receive delivery of such securities in
accordance with local custom and practice generally accepted by Institutional
Clients (as hereinafter defined) in the country in which the settlement occurs,
but in all events subject to the standard of care set forth in Section 5.01(a)
hereof; (iv) in the case of the purchase of securities in which, in accordance
with standard industry custom and practice generally accepted by Institutional
Clients with respect to such securities, the receipt of such securities and the
payment therefor take place in different countries, the Custodian may receive
delivery of such securities and make payment therefor in accordance with
standard industry custom and practice for such securities generally accepted by
Institutional Clients, but in all events subject to the standard of care set
forth in Section 5.01(a) hereof; and (v) in the case of the purchase of
Underlying Fund shares for a Fund of Funds Portfolio, the Custodian shall pay
for and receive such Underlying Fund shares purchased for the account of a Fund
of Funds Portfolio in accordance with Section 2.02(c) hereof. For purposes of
this Agreement, an "Institutional Client" shall mean a major commercial bank,
corporation, insurance company, or substantially similar institution, which, as
a substantial part of its business operations, purchases or sells securities
and makes use of custodial services.
Section 2.04. Exchanges of Securities. Upon receipt of Proper
Instructions, the Custodian shall exchange securities held by it for the
account of a Portfolio for other securities in connection with any
reorganization, recapitalization, split-up of shares, change of par value,
conversion or other event relating to the securities or the issuer of such
securities, and shall deposit any such securities in accordance with the terms
of any reorganization or protective plan. The Custodian shall, without
receiving Proper Instructions: surrender securities in temporary form for
definitive securities; surrender securities for transfer into the name of the
Custodian, a Portfolio or a nominee of either of them, as permitted by Section
2.02(b); and surrender securities for a different number of certificates or
instruments representing the same number of shares or same principal amount of
indebtedness, provided that the securities to be issued will be delivered to
the Custodian or a nominee of the Custodian.
Section 2.05. Sales of Securities. Upon receipt of Proper
Instructions, the Custodian shall make delivery of securities which have been
sold for the account of a Portfolio, but only against payment therefor in the
form of: (1) cash, certified check, bank cashier's check, bank credit, or bank
wire transfer; (2) credit to the account of the Custodian with a clearing
corporation of a national securities exchange of which the Custodian is a
member; or (3) credit to the Account of the Custodian with a Securities System
or Eligible Securities Depository, in accordance with the provisions of Section
2.23(a) and Section 2.23(b) hereof. Notwithstanding the foregoing, upon the
receipt of Proper Instructions: (i) in the case of the sale of securities, the
settlement of which occurs outside of the United States of America, such
securities shall be delivered and paid for in accordance with local custom and
practice generally accepted by Institutional Clients in the country in which
the settlement occurs, but in all events subject to the standard of care set
forth in Section 5.01(a) hereof; (ii) in the case of the sale of securities in
which, in accordance with standard industry custom and practice generally
accepted by Institutional Clients with respect to such securities, the delivery
of such securities and receipt of payment therefor take place in different
countries, the Custodian may deliver such securities and receive payment
therefor in accordance with standard industry custom and practice for such
securities generally accepted by Institutional Clients, but in all events
subject to the standard of care set forth in Section 5.01(a) hereof; (iii) in
the case of securities held in physical form, such securities shall be
delivered and paid for in accordance with "street delivery custom" to a broker
or its clearing agent, against delivery to the Custodian of a receipt for such
securities, provided that the Custodian shall have taken reasonable steps to
ensure prompt collection of the payment for, or the return of, such securities
by the broker or its clearing agent, and provided further that the Custodian
shall not be responsible for the selection of or the failure or inability to
perform of such broker or its clearing agent; and (iv) in the case of the sale
of Underlying Fund shares of a Fund of Funds Portfolio processed through the
Underlying Fund Transfer Agent, the Custodian shall release such Underlying
Fund shares, provided that, the Custodian shall act in accordance with Section
2.02(c) hereof.
Section 2.06. Depositary Receipts. Upon receipt of Proper
Instructions, the Custodian shall surrender securities to the depositary used
for such securities by an issuer of American Depositary Receipts or
International Depositary Receipts (hereinafter referred to, collectively, as
"ADRs"), against a written receipt therefor adequately describing such
securities and written evidence satisfactory to the Custodian that the
depositary has acknowledged receipt of instructions to issue ADRs with respect
to such securities in the name of the Custodian or a nominee of the Custodian,
for delivery to the Custodian at such place as the Custodian may from time to
time designate. Upon receipt of Proper Instructions, the Custodian shall
surrender ADRs to the issuer thereof, against a written receipt therefor
adequately describing the ADRs surrendered and written evidence satisfactory to
the Custodian that the issuer of the ADRs has acknowledged receipt of
instructions to cause its depository to deliver the securities underlying such
ADRs to the Custodian.
Section 2.07. Exercise of Rights; Tender Offers. Notwithstanding
anything contained in this Agreement to the contrary, upon receipt of Proper
Instructions, the Custodian shall be held to the exercise of reasonable care in
taking the following actions: (a) deliver warrants, puts, calls, rights or
similar securities to the issuer or trustee thereof, or to the agent of such
issuer or trustee, for the purpose of exercise or sale, provided that the new
securities, cash or other assets, if any, acquired as a result of such actions
are to be delivered to the Custodian; and (b) deposit securities upon
invitations for tenders thereof, provided that the consideration for such
securities is to be paid or delivered to the Custodian, or the tendered
securities are to be returned to the Custodian; provided, the Custodian shall
not be liable for any late exercise of any right or power in respect of a
Portfolio's securities unless (i) the Custodian has received a Proper
Instruction with regard to the exercise of any such right or power and (ii) the
Custodian or the relevant Subcustodian is in actual possession of the
Portfolio's securities, in both cases prior to the deadline established by the
Custodian in its reasonable discretion and communicated to the Portfolio. The
Custodian will furnish promptly to the Fund, on behalf of its applicable
Portfolio, material information concerning subscription rights, bonus issue,
stock repurchase plan, redemption, exchange, tender offer or similar actions
relating to the Portfolio's securities received by Custodian (or any
Subcustodian) from an issuer of any of the Portfolio's securities, or from a
securities information source customarily used by prudent professional global
custodians.
Section 2.08. Stock Dividends, Rights, Etc. The Custodian shall
receive and collect all stock dividends, rights and other items of like nature
and, notwithstanding anything contained in this Agreement to the contrary, upon
receipt of Proper Instructions, shall be held to the exercise of reasonable
care in taking action with respect to the same as directed in such Proper
Instructions; provided, the Custodian shall not be liable for any late exercise
of any right or similar action in respect of a Portfolio's securities unless
(i) the Custodian has received a Proper Instruction with regard to the exercise
of any such right or action and (ii) the Custodian or the relevant Subcustodian
is in actual possession of the Portfolio's securities, in both cases prior to
the deadline established by the Custodian in its reasonable discretion and
communicated to the Portfolio.
Section 2.09. Options. Upon receipt of Proper Instructions and in
accordance with the provisions of any agreement between the Custodian, any
registered broker-dealer and, if necessary, a Fund on behalf of any applicable
Portfolio relating to compliance with the rules of the Options Clearing
Corporation or of any registered national securities exchange or similar
organization(s), the Custodian shall: (a) receive confirmations or other
documents, if any, evidencing the purchase or writing of an option on a
security or securities index by the applicable Portfolio; (b) deposit and
maintain in a segregated account, securities (on the Custodian's books and
records, physically or by book-entry in a Securities System), cash or other
assets; and (c) pay, release and/or transfer such securities, cash or other
assets in accordance with notices or other communications evidencing the
expiration, termination or exercise of such options furnished by the Options
Clearing Corporation, the securities or options exchange on which such options
are traded, or such other organization as may be responsible for handling such
option transactions. Each Fund, on behalf of its applicable Portfolios, and the
broker-dealer shall be responsible for the sufficiency of assets held in any
segregated account established in compliance with applicable margin maintenance
requirements and the performance of other terms of any option contract.
Section 2.10 Futures Contracts. Upon receipt of Proper Instructions,
or pursuant to the provisions of any futures margin procedural agreement among
a Fund, on behalf of any applicable Portfolio, the Custodian and any futures
commission merchant (a "Procedural Agreement"), the Custodian shall: (a)
receive and retain confirmations, if any, evidencing the purchase or sale of a
futures contract or an option on a futures contract by the applicable
Portfolio; (b) segregate on the Custodian's books and records, for the benefit
of the applicable futures commission merchant, cash or securities of a
Portfolio to secure the obligations of such Portfolio under any futures
contracts or options on futures contracts written by the Portfolio for the
benefit of a futures commission merchant; (c) deliver out to a futures
commission merchant to a broker's margin account (a "Broker's Futures Margin
Account") cash, securities and other assets designated as initial, maintenance
or variation "margin" deposits, such amounts being intended to secure the
applicable Portfolio's performance of its obligations under any futures
contracts purchased or sold or any such options on futures contracts written by
the Portfolio; and (d) accept delivery of such assets back from a futures
commission merchant holding a Broker's Futures Margin Account. Each Fund, on
behalf of its applicable Portfolios, and the applicable futures commission
merchant shall be responsible for the sufficiency of assets held in a Broker's
Futures Margin Account in compliance with applicable margin maintenance
requirements and the performance of any futures contract or option on a futures
contract in accordance with its terms. Any Fund assets held in a Broker's
Futures Margin Account by a futures commission merchant shall be deemed to be
in the custody of such futures commission merchant, and the Custodian shall not
be liable for the acts or omissions of any futures commission merchant during
the period such futures margin is in the futures commission merchant's custody.
Section 2.11. Borrowing. Upon receipt of Proper Instructions, the
Custodian shall deliver securities of a Portfolio to lenders or their agents,
or otherwise establish a segregated account as agreed to by the applicable Fund
on behalf of such Portfolio and the Custodian, as collateral for borrowings
effected by such Portfolio, provided that such borrowed money is paid by the
lender (a) to or upon the Custodian's order, as Custodian for such Portfolio,
and (b) concurrently with delivery of such securities.
Section 2.12. Interest Bearing Deposits. Upon receipt of Proper
Instructions directing the Custodian to purchase interest bearing fixed term
and call deposits (hereinafter referred to collectively, as "Interest Bearing
Deposits") for the account of a Portfolio, the Custodian shall purchase such
Interest Bearing Deposits in the name of the Portfolio with such banks or trust
companies (including the Custodian, any Subcustodian or any subsidiary or
affiliate of the Custodian) (hereinafter referred to as "Banking Institutions")
and in such amounts as the applicable Fund may direct pursuant to Proper
Instructions. Such Interest Bearing Deposits may be denominated in U.S. Dollars
or other currencies, as the applicable Fund on behalf of its Portfolio may
determine and direct pursuant to Proper Instructions. The Custodian shall
include in its records with respect to the assets of each Portfolio appropriate
notation as to the amount and currency of each such Interest Bearing Deposit,
the accepting Banking Institution and all other appropriate details, and shall
retain such forms of advice or receipt evidencing such account, if any, as may
be forwarded to the Custodian by the Banking Institution. The responsibilities
of the Custodian to each Fund for Interest Bearing Deposits accepted on the
Custodian's books in the United States of America on behalf of the Fund's
Portfolios shall be that of a U.S. bank for a similar deposit. With respect to
Interest Bearing Deposits other than those accepted on the Custodian's books,
(a) the Custodian shall be responsible for the collection of income as set
forth in Section 2.15 and the transmission of cash and instructions to and from
such accounts; and (b) the Custodian shall have no duty with respect to the
selection of the Banking Institution or, so long as the Custodian acts in
accordance with Proper Instructions, for the failure of such Banking
Institution to pay upon demand. Upon receipt of Proper Instructions, the
Custodian shall take such reasonable actions as the applicable Fund deems
necessary or appropriate to cause each such Interest Bearing Deposit account to
be insured to the maximum extent required by all applicable deposit insurers
including, without limitation, the Federal Deposit Insurance Corporation.
Section 2.13. Foreign Exchange Transactions.
(a) Foreign Exchange Transactions Other Than as Principal.
Upon receipt of Proper Instructions, the Custodian shall settle
foreign exchange contracts or options to purchase and sell foreign
currencies for spot and future delivery on behalf of and for the
account of a Portfolio with such currency brokers or Banking
Institutions as the applicable Fund may determine and direct pursuant
to Proper Instructions. The Custodian shall be responsible for the
transmission of cash and instructions to and from the currency broker
or Banking Institution with which the contract or option is made, and
the maintenance of proper records as set forth in Section 2.26.
(b) Foreign Exchange Contracts as Principal. The Custodian
shall not be obligated to enter into foreign exchange transactions as
principal. However, if the Custodian has made available to a Fund its
services as a principal in foreign exchange transactions, upon receipt
of Proper Instructions, the Custodian shall enter into foreign
exchange contracts or options to purchase and sell foreign currencies
for spot and future delivery on behalf of and for the account of a
Portfolio of such Fund with the Custodian as principal. The Custodian
shall be responsible for the selection of the currency brokers or
Banking Institutions and the failure of such currency brokers or
Banking Institutions to comply with the terms of any contract or
option.
(c) Payments. Notwithstanding anything to the contrary
contained herein, upon receipt of Proper Instructions the Custodian
may, in connection with a foreign exchange contract, make free
outgoing payments of cash in the form of U.S. Dollars or foreign
currency prior to receipt of confirmation of such foreign exchange
contract or confirmation that the countervalue currency completing
such contract has been delivered or received.
Section 2.14. Securities Loans. Upon receipt of Proper Instructions,
Custodian shall, in connection with loans of securities by a Portfolio, deliver
securities of such Portfolio to the borrower thereof prior to receipt of the
collateral, if any, for such borrowing; provided that, in cases of loans of
securities secured by cash collateral, the Custodian's instructions to the
Securities System shall require that the Securities System deliver the
securities of the Portfolio to the borrower thereof only upon receipt of the
collateral for such borrowing. Upon receipt of Proper Instructions, the
Custodian shall release the collateral received with respect to a loan of
securities to the borrower against receipt of the loaned securities. The
Custodian shall deliver out securities in connection with any lending
arrangements made by the Fund on behalf of one or more Portfolios to a
third-party lending agent or such lending agent's custodian in accordance with
Proper Instructions (which may not provide for contemporaneous receipt by the
Custodian of collateral therefor) as agreed upon from time to time by the
Custodian and the Fund on behalf of the Portfolio.
Section 2.15. Bank Loans. The Custodian shall, in connection with bank
loans, bank loan participations and bank loan assignments (whether in the U.S.
or outside the U.S.) ("Bank Loans"), record, hold, and segregate for the
account of a Fund, on behalf of its applicable Portfolios, all instruments,
certificates, agreements and/or other documents evidencing such Bank Loans
entered into by the Fund, on behalf of its applicable Portfolios (collectively,
"Financing Documents") which the Custodian may receive. The Custodian shall be
under no obligation to examine the contents or determine the sufficiency of any
Financing Documents or to provide any certification with respect thereto. The
Custodian shall be entitled to assume the genuineness, sufficiency and
completeness of any Financing Documents received. The Custodian shall maintain
records of all locations of such Financing Documents, together with a current
inventory thereof. Upon receipt of Proper Instructions, the Custodian shall
promptly deliver to a Fund, on behalf of the applicable Portfolio, or its
designee, any Financing Documents being held on behalf of such Portfolio. Each
Fund, on behalf of the applicable Portfolios, shall cause the Custodian to be
named as its nominee for any Bank Loan and shall otherwise provide for the
direct payment of all amounts due and payable to such Fund, on behalf of the
applicable Portfolios, with respect to any Bank Loan. In addition, the Fund
shall provide the Custodian with information it receives from the bank or other
entity managing a Bank Loan or Financing Document regarding expected interest
and principal payments with respect to the Bank Loans. The Custodian shall
deliver to each applicable Fund regular reports with respect to its Bank Loans
and the Financing Documents with such frequency as may be mutually agreed. The
Custodian shall provide the Funds with prompt notice of any electronic
information it actually receives regarding the Bank Loans or Financing
Documents. The Custodian shall have no responsibilities or duties whatsoever
under this Agreement, with respect to Bank Loans or Financing Documents, except
for such responsibilities and duties as are expressly set forth herein.
Section 2.16. Collections.
(a) General Collections. The Custodian shall use reasonable
efforts, and shall use reasonable efforts to cause any Subcustodian,
to: (i) collect on a timely basis amounts due and payable to each Fund
with respect to portfolio securities and other assets of each of such
Fund's Portfolios; (ii) promptly credit to the account of each
applicable Portfolio all income and other payments relating to
portfolio securities and other assets held by the Custodian hereunder
upon Custodian's receipt of such income or payments or as otherwise
agreed in writing by the Custodian and the applicable Fund; (iii)
promptly endorse and deliver any instruments required to effect such
collections; (iv) promptly execute ownership and other certificates
and affidavits for all federal, state and foreign tax purposes in
connection with receipt of income, capital gains or other payments
with respect to portfolio securities and other assets of each
applicable Portfolio, or in connection with the purchase, sale or
transfer of such securities or other assets; and (v) file on a timely
basis any appropriate certificates or other affidavits for the refund
or reclaim of foreign taxes paid; provided, however, that with respect
to portfolio securities registered in so-called street name, the
Custodian shall use its best efforts to collect amounts due and
payable to each Fund with respect to its Portfolios. The Custodian
shall promptly notify each applicable Fund in writing by facsimile
transmission, or in such other manner as each such Fund and the
Custodian may agree in writing, if any amount payable with respect to
portfolio securities or other assets of the Portfolios of such Fund(s)
is not received by the Custodian when due. The Custodian shall not be
responsible for the collection of amounts due and payable with respect
to portfolio securities or other assets that are in default and for
which the Custodian has not actually received official notification
(with respect to such Fund's Portfolio) regarding any future income or
other payments.
(b) Bank Loan Collections. In addition to its obligations
under Section 2.16(a), if principal payments with respect to a Bank
Loan are not received by the Custodian on the date on which they are
due, or in the case of interest payments, not received either on a
scheduled interest payable date or in the amount of their accrued
interest payable ("Loan Payments"), the Custodian shall promptly, but
in no event later than the next succeeding day that is not a Saturday,
a Sunday or a day on which the Custodian is closed for business (a
"Business Day") after the Loan Payment date, give telephonic notice,
with confirmation by facsimile transmission, to the party obligated
under the Bank Loan or Financing Documents to make such Loan Payment
of its failure to make timely payment.
Section 2.17. Dividends, Distributions and Redemptions. The Custodian
shall promptly release funds or securities: (a) upon receipt of Proper
Instructions, to one or more Distribution Accounts (as hereinafter defined)
designated by the applicable Fund or Funds in such Proper Instructions; or (b)
upon receipt of Special Instructions (as hereinafter defined), as otherwise
directed by the applicable Fund or Funds, for the purpose of the payment of
dividends or other distributions to shareholders of each applicable Portfolio,
and payment to shareholders who have requested repurchase or redemption of
their shares of the Portfolio(s) (collectively, the "Shares"). For purposes of
this Agreement, a "Distribution Account" shall mean an account established at a
Banking Institution designated by the applicable Fund on behalf of one or more
of its Portfolios in Special Instructions.
Section 2.18. Proceeds from Shares Sold. The Custodian shall receive
funds representing cash payments received for Shares issued or sold from time
to time by the Funds, and shall promptly credit such funds to the account(s) of
the applicable Portfolio(s). The Custodian shall promptly notify each
applicable Fund of Custodian's receipt of cash in payment for Shares issued by
such Fund by facsimile transmission or in such other manner as the Fund and
Custodian may agree in writing. Upon receipt of Proper Instructions, the
Custodian shall: (a) deliver all federal funds received by the Custodian in
payment for Shares in payment for such investments as may be set forth in such
Proper Instructions and at a time agreed upon between the Custodian and the
applicable Fund; and (b) make federal funds available to the applicable Fund as
of specified times agreed upon from time to time by the applicable Fund and the
Custodian, in the amount of checks received in payment for Shares which are
deposited to the accounts of each applicable Portfolio.
Section 2.19. Proxies, Notices, Etc. The Custodian shall use
reasonable efforts to promptly deliver to each applicable Fund or its designee
all forms of proxies, all notices of meetings, and all notices regarding class
action law suits or other similar claims affecting or relating to securities,
instruments and Bank Loans owned by one or more of the applicable Fund's
Portfolios that are received by the Custodian, any Subcustodian, any nominee of
either of them, or from a securities information source customarily used by
prudent professional global custodians, and, upon receipt of Proper
Instructions, the Custodian shall use reasonable efforts to promptly execute
and deliver, or cause such Subcustodian or nominee to execute and deliver, such
proxies or other authorizations as may be required. Except as directed pursuant
to Proper Instructions, neither the Custodian nor any Subcustodian or nominee
shall vote upon any such securities, instruments or Bank Loans, or execute any
proxy to vote thereon, or give any consent or take any other action with
respect thereto. With respect to notices regarding class action lawsuits,
Custodian shall forward to each appropriate Fund in accordance with Proper
Instructions agreed upon from time to time, all written information actually
received by State Street Bank and Trust Company in its capacity as Custodian
under this Agreement regarding any class action or other litigation in
connection with the US Securities (as defined herein) or other assets issued in
the United States and then held, or previously held during the term of this
Agreement by the Custodian for the account of such Fund, including, but not
limited to, opt-out notices and proof of claims forms, to the extent State
Street Bank and Trust Company has such information in its capacity as Custodian
for such Fund under this Agreement. For purposes of this Section, "US
Securities" shall mean portfolio assets of the Fund for which State Street Bank
and Trust Company is serving as Custodian pursuant to this Agreement and which
are securities or other assets issued in the United States of America that are
held, or have been held during the term of this Agreement by State Street Bank
and Trust Company in its capacity as Custodian for the account of the
applicable Fund, which assets have not been merged into another fund not
covered by this Agreement.
Section 2.20. Bills and Other Disbursements. Upon receipt of Proper
Instructions, the Custodian shall pay or cause to be paid, all bills,
statements, or other obligations of each Portfolio.
Section 2.21. Nondiscretionary Functions. The Custodian shall attend
to all nondiscretionary details in connection with the sale, exchange,
substitution, purchase, transfer or other dealings with securities or other
assets of each Portfolio held by the Custodian, except as otherwise directed
from time to time pursuant to Proper Instructions.
Section 2.22. Bank Accounts.
(a) Accounts with the Custodian and any Subcustodians. The
Custodian shall open and operate a bank account or accounts
(hereinafter referred to collectively, as "Bank Accounts") on the
books of the Custodian or any Subcustodian provided that such
account(s) shall be in the name of the Custodian or a nominee of the
Custodian, for the account of a Portfolio, and shall be subject only
to the draft or order of the Custodian; and provided further, however,
that such Bank Accounts in countries other than the United States of
America may be held in an account of the Custodian containing only
assets held by the Custodian as a fiduciary or custodian for
customers, and provided further, that the records of the Custodian
shall indicate at all times the Portfolio or other customer for which
such securities and other assets are held in such account and the
respective interests therein. Such Bank Accounts may be denominated in
either U.S. Dollars or other currencies. The responsibilities of the
Custodian to each applicable Fund for deposits accepted on the
Custodian's books in the United States of America shall be that of a
U.S. bank for a similar deposit. The responsibilities of the Custodian
to each applicable Fund for deposits accepted on any Subcustodian's
books shall be governed by the provisions of Section 5.02(d) hereof.
(b) Accounts With Other Banking Institutions. The Custodian
may open and operate Bank Accounts on behalf of a Portfolio, in the
name of the Custodian or a nominee of the Custodian, at a Banking
Institution other than the Custodian or any Subcustodian, provided
that such account(s) shall be in the name of the Custodian or a
nominee of the Custodian, for the account of a Portfolio, and shall be
subject only to the draft or order of the Custodian; provided however,
that such Bank Accounts may be held in an account of the Custodian
containing only assets held by the Custodian as a fiduciary or
custodian for customers, and provided further, that the records of the
Custodian shall indicate at all times the Portfolio or other customer
for which such securities and other assets are held in such account
and the respective interests therein. Such Bank Accounts may be
denominated in either U.S. Dollars or other currencies. Subject to the
provisions of Section 5.01(a), the Custodian shall be responsible for
the selection of the Banking Institution and for the failure of such
Banking Institution to pay according to the terms of the deposit.
(c) Reserved.
(d) Deposit Insurance. Upon receipt of Proper Instructions,
the Custodian shall take such reasonable actions as the applicable
Fund deems necessary or appropriate to cause each deposit account
established by the Custodian pursuant to this Section 2.22 to be
insured to the maximum extent required by all applicable deposit
insurers including, without limitation, the Federal Deposit Insurance
Corporation.
Section 2.23. Deposit of Fund Assets in Securities Systems and
Eligible Securities Depositories. (a) The Custodian may deposit and/or maintain
domestic securities owned by a Portfolio in: (1) The Depository Trust Company;
(2) the Participants Trust Company; (3) any book-entry system as provided in
(i) Subpart O of Treasury Circular Xx. 000, 00 XXX 306.115, (ii) Subpart B of
Treasury Circular Public Debt Series Xx. 00-00, 00 XXX 350.2, or (iii) the
book-entry regulations of federal agencies substantially in the form of 31 CFR
306.115; or (4) any other domestic clearing agency registered with the U.S.
Securities and Exchange Commission ("SEC") under Section 17A of the Securities
Exchange Act of 1934 (or as may otherwise be authorized by the SEC to serve in
the capacity of depository or clearing agent for the securities or other assets
of investment companies) which acts as a securities depository and the use of
which each applicable Fund has previously approved by Special Instructions
(each of the foregoing being referred to in this Agreement as a "Securities
System"). Use of a Securities System shall be in accordance with applicable
Federal Reserve Board and SEC rules and regulations, if any, and subject to the
following provisions:
(1) The Custodian may deposit and/or maintain securities held
hereunder in a Securities System, provided that such securities are
represented in an account ("Account") of the Custodian in the
Securities System which Account shall not contain any assets of the
Custodian other than assets held as a fiduciary, custodian, or
otherwise for customers and shall be so designated on the books and
records of the Securities System.
(2) The Securities System shall be obligated to comply with
the Custodian's directions with respect to the securities held in such
Account and shall not be entitled to a lien against the assets in such
Account for extensions of credit to the Custodian other than for
payment of the purchase price of such assets.
(3) Each Fund hereby designates the Custodian as the party in
whose name any securities deposited by the Custodian in the Account
are to be registered or recorded.
(4) The books and records of the Custodian shall at all times
identify those securities belonging to each Portfolio which are
maintained in a Securities System.
(5) The Custodian shall pay for securities purchased for the
account of a Portfolio only upon (w) receipt of advice from the
Securities System that such securities have been transferred to the
Account of the Custodian, and (x) the making of an entry on the
records of the Custodian to reflect such payment and transfer for the
account of such Portfolio. The Custodian shall transfer securities
sold for the account of a Portfolio only upon (y) receipt of advice
from the Securities System that payment for such securities has been
transferred to the Account of the Custodian, and (z) the making of an
entry on the records of the Custodian to reflect such transfer and
payment for the account of such Portfolio. Copies of all advices from
the Securities System relating to transfers of securities for the
account of a Portfolio shall identify such Portfolio and shall be
maintained for such Portfolio by the Custodian. The Custodian shall
deliver to each applicable Fund on the next Business Day daily
transaction reports which shall include each day's transactions in the
Securities System for the account of each applicable Portfolio. Such
transaction reports shall be delivered to each applicable Fund or any
agent designated by such Fund pursuant to Proper Instructions, by
computer or in such other manner as such Fund and the Custodian may
agree in writing.
(6) The Custodian shall, if requested by a Fund pursuant to
Proper Instructions, provide such Fund with all reports obtained by
the Custodian or any Subcustodian with respect to a Securities
System's accounting system, internal accounting control and procedures
for safeguarding securities deposited in the Securities System.
(7) Upon receipt of Special Instructions to this effect, the
Custodian shall terminate the use of any Securities System (except the
federal book-entry system) on behalf of any Portfolio as promptly as
practicable and shall take all actions reasonably practicable to
safeguard the securities of any Portfolio maintained with such
Securities System.
(b) The Custodian may deposit and/or maintain "Foreign
Assets" (as defined in Rule 17f-5 under the 1940 Act, as the same may be
amended from time to time ("Rule 17f-5")), owned by a Portfolio in a securities
depository located outside the United States of America that the Custodian has
determined meets the definition of "Eligible Securities Depository" under Rule
17f-7(b)(1) under the 1940 Act, as the same may be amended from time to time
("Rule 17f-7"), or that has otherwise been made exempt pursuant to an exemptive
order of the SEC or no-action letter of the staff of the SEC (each of the
foregoing being referred to in this Agreement as an "Eligible Securities
Depository"), provided that prior to the deposit or maintenance of Foreign
Assets of a Fund with a securities depository located outside the United States
of America, the Custodian shall have confirmed in writing to the Fund, on
behalf of its Portfolios, that the securities depository is an Eligible
Securities Depository. Use of an Eligible Securities Depository shall be in
accordance with applicable SEC rules and regulations, in particular Rule 17f-7
under the 1940 Act, and subject to the following provisions:
(1) The Custodian or any Subcustodian may deposit and/or
maintain Foreign Assets held hereunder in an Eligible Securities
Depository, provided that such Foreign Assets are represented in an
Account of the Custodian or Subcustodian in the Eligible Securities
Depository which Account shall not contain any assets of the Custodian
or Subcustodian other than assets held as a fiduciary, custodian, or
otherwise for customers and shall be so designated on the books and
records of the Eligible Securities Depository unless the Fund by
Special Instructions permits another manner of holding, representing
and/or designating a Fund's Foreign Assets.
(2) The Custodian shall, in accordance with the standard of
care set forth in Section 5.01(a) hereof, be responsible for: (A)
providing the Fund or its designee, on behalf of its applicable
Portfolio(s), an analysis of the custody risks associated with
maintaining Foreign Assets with the Eligible Securities Depository;
(B) establishing a system to monitor the custody risks associated with
maintaining Foreign Assets with the Eligible Securities Depository;
(C) monitoring the custody risks associated with maintaining Foreign
Assets with the Eligible Securities Depository on a continuing basis;
and (D) promptly notifying the Fund or its designee of any material
change in the custody risks associated with maintaining Foreign Assets
with the Eligible Securities Depository.
(3) The Eligible Securities Depository shall be obligated to
comply with the Custodian's or Subcustodian's directions with respect
to the Foreign Assets held in such Account, provided that the Foreign
Assets held in such Account shall not be subject to any right, charge,
security interest, lien or claim of any kind in favor of the Custodian
or Subcustodian (or either of their respective creditors), except a
claim for reasonable payment for their safe custody or administration.
(4) Each Fund hereby designates the Custodian or each
Subcustodian as the party in whose name any Foreign Assets deposited
by the Custodian or the Subcustodian in the Account are to be
registered or recorded, provided, however, that the Custodian may
register or record Foreign Assets of a Fund in the name of the Fund or
other nominee for the Fund upon the Custodian's provision of written
notice to the Fund of such proposed registration or recordation.
(5) The books and records of the Custodian shall at all times
identify those Foreign Assets belonging to each Portfolio which are
maintained in an Eligible Securities Depository.
(6) The Custodian shall pay for Foreign Assets purchased for
the account of a Portfolio only upon (w) receipt of advice from the
Eligible Securities Depository that such Foreign Assets have been
transferred to the Account of the Custodian or Subcustodian, and (x)
the making of an entry on the records of the Custodian to reflect such
payment and transfer for the account of such Portfolio, provided
however, if required under the laws of the jurisdiction in which the
Eligible Securities Depository is located or pursuant to the rules of
an Eligible Securities Depository, the Custodian may receive delivery
of such securities and make payment therefor in accordance with such
applicable laws or rules of the Eligible Securities Depository, but in
all events subject to the standard of care set forth in Section
5.01(a) hereof. The Custodian or Subcustodian shall transfer Foreign
Assets sold for the account of a Portfolio only upon (y) receipt of
advice from the Eligible Securities Depository that payment for such
Foreign Assets has been transferred to the Account of the Custodian or
Subcustodian, and (z) the making of an entry on the records of the
Custodian to reflect such transfer and payment for the account of such
Portfolio, provided however, if required under the laws of the
jurisdiction in which the Eligible Securities Depository is located or
pursuant to the rules of an Eligible Securities Depository, the
Custodian may make payment therefor and receive delivery of such
securities in accordance with such applicable laws or rules of the
Eligible Securities Depository, but in all events subject to the
standard of care set forth in Section 5.01(a) hereof. Copies of all
advices from the Eligible Securities Depository relating to transfers
of Foreign Assets for the account of a Portfolio shall identify such
Portfolio or the Custodian or Subcustodian who is holding the assets
of such Portfolio and shall be maintained for such Portfolio by the
Custodian. The Custodian shall deliver to each applicable Fund no
later than the next succeeding Business Day, or at such other time or
times as such Fund and the Custodian may agree in writing, daily
transaction reports which shall include each day's transactions in the
Eligible Securities Depository for the account of each applicable
Portfolio. Such transaction reports shall be delivered to each
applicable Fund or any agent designated by such Fund pursuant to
Proper Instructions, by electronic device or system (including without
limitation, computers) or in such other manner as such Fund and the
Custodian may agree in writing.
(7) The Custodian shall, if requested by a Fund or its
designee pursuant to Proper Instructions, provide such Fund with all
reports obtained by the Custodian or any Subcustodian with respect to
an Eligible Securities Depository's accounting system, internal
accounting controls, and procedures for safeguarding Foreign Assets
deposited in the Eligible Securities Depository.
(8) The Custodian (A) shall terminate the use of any Eligible
Securities Depository on behalf of any Portfolio as soon as reasonably
practicable and shall take all actions reasonably practicable to
safeguard the Foreign Assets of any Portfolio maintained with such
Eligible Securities Depository: (1) upon receipt of Special
Instructions; or (2) in the absence of the receipt of Special
Instructions, if the custody arrangement with the Eligible Securities
Depository at any time ceases to satisfy the requirements of Rule
17f-7(b)(1), and (B) shall provide the Funds or their respective
designees, on behalf of the Portfolios, with written notification of
any termination of the Custodian's use of an Eligible Securities
Depository at least 90 days prior to the effective date of the
proposed termination, unless the Funds in their discretion permit a
shorter notification period.
(9) Each Eligible Securities Depository through which the
Custodian maintains Foreign Assets of the applicable Portfolio(s) and
the countries where they may hold Foreign Assets of the applicable
Portfolio(s) shall be listed on Appendix B attached hereto, as the
same may be amended from time to time in accordance with the
provisions of Section 9.07(c) hereof.
Section 2.24. Other Transfers.
(a) Upon receipt of Proper Instructions, the Custodian shall
transfer to or receive from a third party that has been appointed to
serve as an additional custodian of one or more Portfolios (an
"Additional Custodian") securities, cash and other assets of such
Portfolios in accordance with such Proper Instructions. Each
Additional Custodian shall be identified as such on Appendix B, as the
same may be amended from time to time in accordance with the
provisions of Section 9.07(c) hereof.
(b) Upon receipt of Special Instructions, the Custodian shall
make such other dispositions of securities, funds or other assets of a
Portfolio in a manner or for purposes other than as expressly set
forth in this Agreement, provided that the Special Instructions
relating to such disposition shall include a statement of the purpose
for which the delivery is to be made, the amount of funds and/or
securities or other assets to be delivered, and the name of the person
or persons to whom delivery is to be made, and shall otherwise comply
with the provisions of Sections 3.01 and 3.03 hereof.
Section 2.25. Establishment of Segregated Account. Upon receipt of
Proper Instructions, the Custodian shall establish and maintain on its books a
segregated account or accounts for and on behalf of a Portfolio, into which
account or accounts may be transferred cash and/or securities or other assets
of such Portfolio, including securities maintained by the Custodian in a
Securities System pursuant to Section 2.23(a) hereof or an Eligible Securities
Depository pursuant to Section 2.23(b) hereof, said account or accounts to be
maintained: (a) for the purposes set forth in Sections 2.09, 2.10 and 2.11
hereof; (b) for the purposes of compliance by the Portfolio with the procedures
required by Investment Company Act Release No. 10666, or any subsequent release
or releases of the SEC or SEC rules, regulations or publicly available
interpretative letters of the staff of the SEC relating to the maintenance of
segregated accounts by registered investment companies; or (c) for such other
purposes as set forth, from time to time, in Special Instructions.
Section 2.26. Custodian's Books and Records. The Custodian shall
provide any assistance reasonably requested by a Fund in the preparation of
reports to such Fund's shareholders and others, audits of accounts, and other
ministerial matters of like nature. The Custodian shall maintain complete and
accurate records with respect to securities and other assets held for the
accounts of each Portfolio as required by the rules and regulations of the SEC
applicable to investment companies registered under the 1940 Act, including:
(a) journals or other records of original entry containing a detailed and
itemized daily record of all receipts and deliveries of securities or other
assets (including certificate and transaction identification numbers, if any),
and all receipts and disbursements of cash; (b) ledgers or other records
reflecting (i) securities in transfer, (ii) securities in physical possession,
(iii) securities borrowed, loaned or collateralizing obligations of each
Portfolio, (iv) monies borrowed and monies loaned (together with a record of
the collateral therefor and substitutions of such collateral), (v) dividends
and interest received, (vi) the amount of tax withheld by any person in respect
of any collection made by the Custodian or any Subcustodian, and (vii) the
amount of reclaims or refunds for foreign taxes paid; and (c) cancelled checks
and bank records related thereto. The Custodian shall keep such other books and
records of each Fund as such Fund shall reasonably request. All such books and
records maintained by the Custodian shall be maintained in a form acceptable to
the applicable Fund and in compliance with the rules and regulations of the
SEC, including, but not limited to, books and records required to be maintained
by Section 31(a) of the 1940 Act and the rules and regulations from time to
time adopted thereunder, and shall be reasonably arranged and indexed by the
Custodian in a manner that permits reasonably prompt location, access and
retrieval of a particular record including, if requested by a Fund, retrieval
within the time period specified by any regulatory entity with jurisdiction
over the Fund. All books and records maintained by the Custodian pursuant to
this Agreement shall at all times be the property of each applicable Fund and
shall be available upon request during normal business hours for inspection and
use by such Fund and its agents, including, without limitation, its independent
certified public accountants. Notwithstanding the preceding sentence, no Fund
shall take any actions or cause the Custodian to take any actions which would
cause, either directly or indirectly, the Custodian to violate any applicable
laws, regulations or orders. In addition to the books and records required to
be maintained by the Custodian pursuant to this Agreement, the Custodian shall
keep such other books and records of each Fund as may be agreed to by the
parties and upon such terms as may be agreed between the parties. All books and
records maintained by the Custodian pursuant to this Agreement shall be
maintained for the periods required under Rule 31a-2 of the 1940 Act. Upon a
Fund's request, the Custodian shall promptly surrender to such Fund copies of
all books and records of the Fund maintained by the Custodian pursuant to this
Agreement.
Section 2.27. Opinion of Fund's Independent Certified Public
Accountants. The Custodian shall take all reasonable action as a Fund may
periodically request to obtain from year to year favorable opinions from such
Fund's independent certified public accountants with respect to the Custodian's
activities hereunder in connection with the preparation of the Fund's Form
N-1A,Form N-CSR and Form N-SAR or other periodic reports to the SEC and with
respect to any other requirements of the SEC or the federal securities laws,
including the 1940 Act, and the rules and regulations thereunder.
Section 2.28. Reports by Independent Certified Public Accountants.
Annually, and as may otherwise be reasonably requested by a Fund, but in no
event more frequently than semi-annually, the Custodian shall deliver to such
Fund a written report prepared by the Custodian's independent certified public
accountants with respect to the services provided by the Custodian under this
Agreement, including, without limitation, the Custodian's accounting system,
internal accounting control and procedures for safeguarding cash, securities
and other assets, including cash, securities and other assets deposited and/or
maintained in a Securities System, Eligible Securities Depository or with a
Subcustodian. Such report shall be of sufficient scope and in sufficient detail
as may reasonably be required by any Fund and as may reasonably be obtained by
the Custodian.
Section 2.29. Advances by the Custodian. The Custodian may, in its
sole discretion, advance funds on behalf of any of the Portfolios to make any
payment permitted by this Agreement upon receipt of any proper authorization by
the applicable Fund required by this Agreement for such payments on behalf of
the Portfolio. Should such a payment or payments, with advanced funds, result
in an overdraft (due to insufficiencies of the Portfolio's account with the
Custodian, or for any other reason), any such overdraft or related indebtedness
shall be deemed for purposes of this Agreement a loan made by the Custodian to
the Fund for the account of the Portfolio payable on demand. Such overdraft
shall bear interest at such rate as may be agreed to from time to time by the
Fund and the Custodian for such loans unless the Fund on behalf of the
Portfolio shall provide the Custodian with compensating balances. Each of the
Funds agrees that the Custodian shall have a continuing lien and security
interest to the extent of any overdraft or indebtedness, in and to any property
at any time held by the Custodian for the benefit of the applicable Portfolio
or in which the applicable Portfolio has an interest and which is then in the
Custodian 's possession or control (or in the possession or control of any
third party acting on the Custodian's behalf). Each of the Funds authorizes the
Custodian, in the Custodian's sole discretion, at any time to charge any
overdraft or indebtedness, together with interest due thereon, against any
balance of account standing to the credit of the applicable Portfolio on the
Custodian's books. In addition, the Custodian shall be entitled to utilize
available cash and to dispose of such Portfolio's assets to the extent
necessary to obtain reimbursement; provided, however, the Custodian shall have
provided the Fund three (3) days' notice with respect thereto.
Section 2.30. Insurance Requirements.
(a) The Custodian shall, at its own expense, procure and
maintain: (i) workers compensation insurance for its own employees in
an amount not less than the statutory limits under all applicable
statutes, rules and regulations in each of the states in which
Custodian operates and under all applicable federal statutes, rules
and regulations, (ii) employers liability insurance in an amount not
less than $1,000,000 per occurrence, (iii) comprehensive general
liability insurance in an amount not less than $1,000,000 per
occurrence, (iv) comprehensive automobile liability (including
automobile non-ownership liability) insurance in a combined single
limit amount of not less than $1,000,000 per occurrence, (v) umbrella
or excess liability insurance providing coverages in excess of the
coverages listed in (ii), (iii) and (iv) above in an amount not less
than $5,000,000 per occurrence, (vi) errors and omission liability
insurance in an amount not less than $10,000,000 per claim, (vii) a
fidelity bond in an amount not less than $10,000,000 per loss, and
(vii) electronic and computer crime insurance in an amount not less
than $10,000,000 per loss; provided however that the term "Custodian"
in this Section 2.30 shall not include a Subcustodian or Eligible
Securities Depository. Nothing in this Section 2.30 shall be deemed to
limit the Custodian's liability to the types or coverage amounts
specified above or to limit any coverage under any of Custodian's
insurance policies.
(b) Concurrent with the execution of this Agreement and
thereafter upon the request of a Fund (but in no event more frequently
than annually), Custodian shall provide a "certificate of insurance"
to each Fund that evidences that policies, bonds or similar agreements
providing the types and amounts of coverage specified in paragraph (a)
of this Section 2.30 have been entered into and are in full force and
effect and that specifies the applicable deductible amount for each
policy, bond or similar agreement.
Section 2.31. Provision of Information. At the request of a Fund, the
Custodian shall promptly provide to such Fund all information relating to such
Fund's, or any of its Portfolio's, cash, securities, and other assets which may
be reasonably requested by such Fund in order to determine the amount to be
paid to the Custodian under Article VI hereof. Such information shall be
delivered to such Fund at such time(s) and in such forms specified by such
Fund.
ARTICLE III
PROPER INSTRUCTIONS, SPECIAL INSTRUCTIONS
AND RELATED MATTERS
Section 3.01. Proper Instructions and Special Instructions.
(a) Proper Instructions. As used herein, the term "Proper
Instructions" shall mean: (i) a tested telex, a SWIFT message, a
written (including, without limitation, facsimile transmission)
request, direction, instruction or certification signed or initialed
by or on behalf of the applicable Fund by one or more Authorized
Persons (as hereinafter defined); (ii) a telephonic or other oral
communication by one or more Authorized Persons; (iii) a communication
effected directly between an electro-mechanical or electronic device
or system (including, without limitation, computers) by or on behalf
of the applicable Fund by one or more Authorized Persons; or (iv) by
such other means and utilizing such intermediary systems and utilities
as may be agreed from time to time by the Custodian and the Fund,
provided that the applicable Fund has followed any security procedures
agreed to from time to time by such Fund and the Custodian including,
but not limited to, the security procedures selected by the Fund via
the form of Funds Transfer Addendum attached hereto; provided,
however, that communications of the types described in clauses (ii)
and (iii) above purporting to be given by an Authorized Person shall
be considered Proper Instructions only if the Custodian reasonably
believes such communications to have been given by an Authorized
Person with respect to the transaction involved. Proper Instructions
in the form of oral communications shall be confirmed by the
applicable Fund by tested telex, SWIFT message or in writing in the
manner set forth in clause (i) above, but the lack of such
confirmation shall in no way affect any action taken by the Custodian
in reasonable reliance upon such oral instructions prior to the
Custodian's receipt of such confirmation. Proper Instructions may
relate to specific transactions or to types or classes of
transactions, and may be in the form of standing instructions.
(b) Special Instructions. As used herein, the term "Special
Instructions" shall mean Proper Instructions countersigned or
confirmed in writing by the Treasurer or any Assistant Treasurer of
the applicable Fund or any other person designated by the Treasurer of
such Fund in writing, which countersignature or confirmation shall be
(i) included on the same instrument containing the Proper Instructions
or on a separate instrument relating thereto, and (ii) delivered by
hand, by facsimile transmission, or in such other manner as the
applicable Fund and the Custodian agree in writing.
(c) Address for Proper Instructions and Special Instructions.
Proper Instructions and Special Instructions shall be delivered to the
Custodian at the address and/or telephone, telecopy or telex number
agreed upon from time to time by the Custodian and the applicable
Fund.
Section 3.02. Authorized Persons. Concurrently with the execution of
this Agreement and from time to time thereafter, as appropriate, each Fund
shall deliver to the Custodian, duly certified as appropriate by a Treasurer or
any Deputy or Assistant Treasurer of such Fund, a certificate setting forth:
(a) 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 such Fund (collectively,
the "Authorized Persons" and individually, an "Authorized Person"); and (b) the
names, titles and signatures of those persons authorized to issue Special
Instructions. Such certificate may be accepted and reasonably relied upon by
the Custodian as conclusive evidence of the facts set forth therein and shall,
unless otherwise specified therein, be considered to be in full force and
effect until delivery to the Custodian of a similar certificate to the
contrary. Upon delivery of a certificate which deletes the name(s) of a person
previously authorized by a Fund to give Proper Instructions or to issue Special
Instructions, such persons shall no longer be considered an Authorized Person
or authorized to issue Special Instructions for that Fund.
Section 3.03. Persons Having Access to Assets of the Portfolios.
Notwithstanding anything to the contrary contained in this Agreement, no
Authorized Person, Trustee, officer, employee or agent of any Fund shall have
physical access to the assets of any Portfolio of that Fund held by the
Custodian nor shall the Custodian deliver any assets of a Portfolio for
delivery to an account of such person; provided, however, that nothing in this
Section 3.03 shall prohibit (a) any Authorized Person from giving Proper
Instructions, or any person authorized to issue Special Instructions from
issuing Special Instructions, so long as such action does not result in
delivery of or access to assets of any Portfolio prohibited by this Section
3.03; or (b) each Fund's independent certified public accountants from
examining or reviewing the assets of the Portfolios of the Fund held by the
Custodian. Each Fund shall deliver to the Custodian a written certificate
identifying such Authorized Persons, Trustees, officers, employees and agents
of such Fund.
Section 3.04. Actions of Custodian Based on Proper Instructions and
Special Instructions. So long as and to the extent that the Custodian acts in
accordance with (a) Proper Instructions or Special Instructions, as the case
may be, and (b) the terms of this Agreement (including the standard of care set
forth in Section 5.01(a)), the Custodian shall not be responsible for the
title, validity or genuineness of any property, or evidence of title thereof,
received by it or delivered by it pursuant to this Agreement.
ARTICLE IV
SUBCUSTODIANS
The Custodian may, from time to time, in accordance with the relevant
provisions of this Article IV, appoint one or more Domestic Subcustodians,
Foreign Subcustodians, Interim Subcustodians and Special Subcustodians (each as
hereinafter defined) to act on behalf of a Portfolio. (For purposes of this
Agreement, all duly appointed Domestic Subcustodians, Foreign Subcustodians,
Interim Subcustodians, and Special Subcustodians are hereinafter referred to
collectively, as "Subcustodians.") For the avoidance of doubt, no Underlying
Fund Transfer Agent shall be deemed an agent or Subcustodian of the Custodian
for purposes of any provision of this Agreement.
Section 4.01. Domestic Subcustodians. The Custodian may, at any time
and from time to time, appoint any bank as defined in Section 2(a)(5) of the
1940 Act meeting the requirements of a custodian under Section 17(f) of the
1940 Act and the rules and regulations thereunder, to act on behalf of one or
more Portfolios as a subcustodian for purposes of holding cash, securities and
other assets of such Portfolios and performing other functions of the Custodian
within the United States (a "Domestic Subcustodian"); provided that, the
Custodian shall notify each applicable Fund in writing of the identity and
qualifications of any proposed Domestic Subcustodian at least thirty (30) days
prior to appointment of such Domestic Subcustodian, and such Fund may, in its
sole discretion, by written notice to the Custodian executed by an Authorized
Person disapprove of the appointment of such Domestic Subcustodian. If,
following notice by the Custodian to each applicable Fund regarding appointment
of a Domestic Subcustodian and the expiration of thirty (30) days after the
date of such notice, such Fund shall have failed to notify the Custodian of its
disapproval thereof, the Custodian may, in its discretion, appoint such
proposed Domestic Subcustodian as its subcustodian.
Section 4.02. Foreign Subcustodians and Interim Subcustodians.
(a) Foreign Subcustodians. Subject to and in accordance with
the following provisions, the Board of Trustees or other governing
body or entity of each Fund, on behalf of its applicable Portfolio(s),
hereby delegates its responsibilities as set forth in Rule 17f-5 under
the 1940 Act, to the Custodian and appoints the Custodian as its
"Foreign Custody Manager" (as such term is defined in Rule 17f-5), and
the Custodian hereby accepts such delegation and appointment and
agrees to (1) act on behalf of the applicable Fund(s) and Portfolios
in such capacity, (2) perform the responsibilities set forth in Rule
17f-5, and (3) exercise the standard of care set forth in Section
5.01(a) hereof in performing its responsibilities hereunder and under
Rule 17f-5, except to the extent Rule 17f-5 provides a higher standard
of care, in which case that standard shall apply.
(i) Subject to and in accordance with the provisions
of Rule 17f-5, the Custodian may, at any time and from time to time,
appoint: (A) any "Qualified Foreign Bank" (as such term is defined in
Rule 17f-5), (B) any majority-owned direct or indirect subsidiary of a
"U.S. Bank" (as such term is defined in Rule 17f-5) or U.S. bank
holding company meeting the requirements of an "Eligible Foreign
Custodian" (as such term is defined in Rule 17f-5), (C) any other
entity which by order of the SEC, or by no-action letter of the staff
of the SEC is exempt from meeting the requirements of an "Eligible
Foreign Custodian" as set forth in Rule 17f-5, to act on behalf of the
applicable Fund(s) and Portfolio(s) as a subcustodian for purposes of
holding "Foreign Assets" (as defined in Rule 17f-5), or (D) any "Bank"
(as such term is defined in the 0000 Xxx) that qualifies as and may
serve as a custodian under Section 17(f) of the 1940 Act (each a
"Foreign Subcustodian").
(ii) Without limiting the foregoing, the Custodian
shall be responsible for (A) determining that each applicable Fund's
or Portfolio's Foreign Assets, if maintained with each Foreign
Subcustodian, will be subject to the standard of care set forth in
Section 5.01(a) hereof after considering all factors relevant to the
safekeeping of such assets including, without limitation, those
factors set forth in the provisions of paragraph (c)(1) of Rule 17f-5,
(B) ensuring that each foreign custody arrangement with a Foreign
Subcustodian is governed by a written contract with the Custodian
meeting the requirements of paragraph (c)(2) of Rule 17f-5 which will
provide reasonable care for each applicable Fund's or Portfolio's
Foreign Assets based on the standard of care set forth in Section
5.01(a) hereof, (C) determining that each contract with a Foreign
Subcustodian shall include the provisions specified in paragraph
(c)(2)(i)(A) through (F) of Rule 17f-5 or alternatively, in lieu of
any or all of such (c)(2)(i)(A) through (F) provisions, such other
provisions as the Custodian reasonably determines will provide, in
their entirety, the same or greater level of care and protection for
the Foreign Assets of each Fund or Portfolio as such specified
provisions in their entirety, (D) establishing a system to monitor the
appropriateness of maintaining each applicable Fund's or Portfolio's
Foreign Assets with each Foreign Subcustodian pursuant to paragraph
(c)(1) of Rule 17f-5 and to monitor the performance of each Foreign
Subcustodian under the subcustodian agreement between the Custodian
and the Foreign Subcustodian, (E) monitoring the appropriateness of
maintaining each applicable Fund's and Portfolio's Foreign Assets with
each Foreign Subcustodian pursuant to paragraph (c)(1) of Rule 17f-5
and the performance of each Foreign Subcustodian under the
subcustodian agreement between the Custodian and the Foreign
Subcustodian, and (F) promptly notifying each applicable Fund or
Portfolio whenever an arrangement described in the preceding clause
(E) no longer satisfies the requirements of Rule 17f-5.
(iii) The Custodian shall prepare written reports to
the Board of Trustees or other governing body or entity of each Fund,
on behalf of its applicable Portfolio(s), on an annual basis showing
(A) the identity and qualifications of each Foreign Subcustodian
authorized by the Custodian to hold Foreign Assets of the Fund(s) and
Portfolio(s), (B) the placement of the Fund's and Portfolio's Foreign
Assets with each such Foreign Subcustodian, (C) the country or
countries in which each Foreign Subcustodian is authorized to hold
Foreign Assets of the applicable Fund(s) and Portfolio(s) and (D) any
material changes to the Custodian's foreign custody arrangements for
the applicable Fund(s) and Portfolios) since the submission of the
Custodian's last written report to the applicable Fund's Board of
Trustees or other governing body or entity pursuant to this Section
4.02(a)(iii), including without limitation:
(1) changes in the Foreign Subcustodians included in
the Custodian's global custody network or arrangements;
(2) any change, including any amendment or
modification to the subcustodian agreements between the
Custodian and each of the Foreign Subcustodians, that could
materially affect the ability of a Foreign Subcustodian to
perform its duties in respect of the applicable Funds, or
Portfolios' Foreign Assets.
In addition to the annual reports required by clause (a) (iii) above,
the Custodian shall submit promptly (but in no event later than five
(5) Business Days after the event giving rise to a reporting
requirement) interim reports to the Board of Trustees or other
governing body or entity of each applicable Fund, on behalf of its
applicable Portfolio(s), of any changes that have or could materially
affect the ability of a Foreign Subcustodian to perform its duties in
respect of the Funds' and Portfolios' assets and any actions that the
Custodian has taken or proposes to take in connection with such
changes.
(iv) Each duly appointed Foreign Subcustodian and
the countries where and clearing agencies through which they may hold
Foreign Assets of the applicable Fund(s) and Portfolio(s) shall be
listed on Appendix B attached hereto and dated as of the date of this
Agreement, as the same may be amended from time to time, in accordance
with the provisions of Section 9.07(c) hereof.
(v) Each Fund shall be responsible for informing the
Custodian sufficiently in advance of a proposed investment by itself
or by one of its Portfolios which is to be held in a country in which
no Foreign Subcustodian is authorized to act, in order that there
shall be sufficient time for the Custodian to effect the appropriate
arrangements with a proposed foreign subcustodian.
(vi) The Custodian shall provide the Funds or their
respective designees, on behalf of their Portfolios, with written
notification of any (A) proposed change in the Foreign Subcustodians
included in the Custodian's global custody network or arrangements at
least thirty (30) Business Days prior to the effective date of the
proposed change, or (B) termination, in whole or with respect to one
or more specified jurisdictions, of its acceptance of the Board of
Trustees or other governing body or entity of a Fund, on behalf of its
applicable Portfolio(s), delegation and appointment as the Fund's
"Foreign Custody Manager" at least ninety (90) days prior to the
effective date of the proposed termination; unless, in either case,
the Funds in their discretion permit a shorter notification period.
(b) Interim Subcustodians. Notwithstanding the foregoing, in
the event that a Portfolio shall invest in a security or other asset
to be held in a country in which no Foreign Subcustodian is authorized
to act, the Custodian shall promptly notify the applicable Fund in
writing by facsimile transmission or in such other manner as such Fund
and Custodian shall agree in writing of the unavailability of an
approved Foreign Subcustodian in such country; and the Custodian
shall, upon receipt of Special Instructions, appoint any Person (as
hereinafter defined) designated by the applicable Fund in such Special
Instructions to hold such security or other asset, provided that such
Person meets the requirements of -------- this Section 4.02(b). The
subcustodian agreement between the Custodian and any Interim
Subcustodian shall comply with the provisions of the 1940 Act and the
rules and regulations thereunder (including Rule 17f-5, if applicable)
and the terms and provisions of this Agreement. The Custodian shall
comply with Section 4.02 (a)(i), (ii), (iii), and (vi) hereof with
respect to the appointment of an Interim Custodian. (Any Person
appointed as a subcustodian pursuant to this Section 4.02(b) is
hereinafter referred to as an "Interim Subcustodian.")
Section 4.03. Special Subcustodians. Upon receipt of Special
Instructions, the Custodian shall, on behalf of one or more Portfolios, appoint
one or more banks, trust companies or other entities designated in such Special
Instructions to act as a subcustodian for purposes of: (i) effecting
third-party repurchase transactions with banks, brokers, dealers or other
entities through the use of a common custodian or subcustodian; (ii) providing
depository and clearing agency services with respect to certain variable rate
demand note securities; and (iii) effecting any other transactions designated
by each applicable Fund in Special Instructions. (Each such designated
subcustodian is hereinafter referred to as a "Special Subcustodian.") Each such
duly appointed Special Subcustodian shall be listed on Appendix B attached
hereto, as it may be amended from time to time in accordance with the
provisions of Section 9.07(c) hereof. In connection with the appointment of any
Special Subcustodian, the Custodian shall use reasonable efforts to enter into
a subcustodian agreement with the Special Subcustodian in form and substance
approved by each applicable Fund, provided that such agreement shall in all
events comply with the provisions of the 1940 Act and the rules and regulations
thereunder (including Rule17f-5, if applicable) and the terms and provisions of
this Agreement. If any Special Custodian is a Foreign Custodian, the Custodian
shall comply with Section 4.02 of this Agreement. The Custodian shall not amend
any subcustodian agreement entered into with a Special Subcustodian, or agree
to change or permit any changes thereunder, or waive any rights under such
agreement, except upon prior approval pursuant to Special Instructions.
Section 4.04. Termination of a Subcustodian. The Custodian shall (i)
cause each Domestic Subcustodian and Foreign Subcustodian to, and (ii) use its
best efforts to cause each Interim Subcustodian and Special Subcustodian to,
perform all of its obligations in accordance with the terms and conditions of
the subcustodian agreement between the Custodian and such Subcustodian. In the
event that the Custodian is unable to cause a Subcustodian to fully perform its
obligations thereunder, the Custodian shall use reasonable efforts to promptly
notify the applicable Fund and, upon the receipt of Special Instructions, use
reasonable efforts to promptly terminate such Subcustodian with respect to each
applicable Fund and, if necessary or desirable, appoint a replacement
Subcustodian in accordance with the provisions of Section 4.01, Section 4.02 or
Section 4.03, as the case may be. In addition to the foregoing, the Custodian
(A) may, at any time in its discretion, upon written notification to each
applicable Fund, terminate any Domestic Subcustodian, Foreign Subcustodian or
Interim Subcustodian, and (B) shall, upon receipt of Special Instructions,
terminate any Subcustodian with respect to each applicable Fund, in accordance
with the termination provisions under the applicable subcustodian agreement.
Section 4.05. Confirmation Regarding Foreign Subcustodians. Each report
presented to the Board of Trustees of each Fund, on behalf of itself or its
applicable Portfolio(s), by the Custodian pursuant to Section 4.02(a)(iii)
above shall be accompanied by a confirmation representing that (A) the
Custodian has established a system to monitor the appropriateness of
maintaining the Fund's or Portfolio's Foreign Assets with each Foreign
Subcustodian pursuant to paragraph (c)(1) of Rule 17f-5 and to monitor the
performance of each Foreign Subcustodian under the subcustodian agreement
between the Custodian and the Foreign Subcustodian; (B) the Custodian has
monitored all Foreign Subcustodians and each Foreign Subcustodian continues to
be an "Eligible Foreign Custodian," (as such term is defined in Rule 17f-5);
(C) each Foreign Subcustodian continues to provide the standard of care set
forth in Section 5.01(a) hereof, after considering all relevant factors,
including without limitation, those factors set forth in paragraph (c)(1) of
Rule 17f-5; (D) all foreign custody agreements between the Custodian and the
Foreign Subcustodians continue to meet the requirements of paragraph (c)(2) of
Rule 17f-5; (E) since the submission of the last report pursuant to Section
4.02(a)(iii) above, there have been no material adverse changes to the
Custodian's foreign custody network or arrangements other than those reported
to the Board of Trustees or other governing body or entity of the Fund, on
behalf of itself or its applicable Portfolios, in the accompanying report; and
(F) the information included in the report is true, accurate and complete in
all material respects.
ARTICLE V
STANDARD OF CARE; INDEMNIFICATION
Section 5.01. Standard of Care.
(a) General Standard of Care. The Custodian shall exercise
diligence, prudence and reasonable care in carrying out all of its
duties and obligations under this Agreement, and shall be liable to
each Fund for all direct losses, damages and expenses suffered or
incurred by such Fund or its Portfolio(s) resulting from the failure
of the Custodian to exercise such diligence, prudence and reasonable
care. In no event shall any party hereto be liable for indirect,
special or consequential losses, damages or expenses.
(b) Disruption of Services; Actions Prohibited by Applicable
Law, Etc. In order to prevent the disruption of services in the event
of any reasonably foreseeable adverse event (such as terrorism or
related threats to security, loss of electric power or communications
lines, equipment failure, fire, water damage or severe weather
conditions), the Custodian shall maintain at all times, at no
additional expense to the Funds, a complete business continuity,
disaster recovery, business resumption and crisis management plan
("Business Continuity/Disaster Recovery Plan") reasonably designed to
safeguard from loss or damage attributable to terrorism or related
threats to security, fire, flood, theft or any other cause the cash,
security, other assets, records and other data of the Funds and the
Portfolios and the Custodian's records, data, equipment, facilities
and other property used in the performance of its obligations under
the Agreement. Upon reasonable request, the Custodian shall discuss
with senior management of the Funds the Business Continuity/Disaster
Recovery Plan and/or provide a high-level presentation summarizing the
Business Continuity/Disaster Recovery Plan. For the avoidance of
doubt, the parties hereto agree that for purposes of the immediately
preceding sentence, "reasonable" shall mean at least annually. In the
event of equipment failure, work stoppage, governmental action,
terrorism or related threats to security, communication disruption or
other impossibility of performance beyond the Custodian's control, the
Custodian shall, at no additional expense to the Fund, use
commercially reasonable efforts to minimize service interruptions. In
no event shall the Custodian incur liability hereunder if the
Custodian or any Subcustodian, Securities System or Eligible
Securities Depository, or any subcustodian, securities depository or
securities system utilized by any such Subcustodian, or any nominee of
the Custodian or any Subcustodian (individually, a "Person") is
prevented, forbidden or delayed from performing, or omits to perform,
any act or thing which this Agreement provides shall be performed or
omitted to be performed, by reason of: (i) any provision of any
present or future law or regulation or order of the United States of
America, or any state thereof, or of any foreign country, or political
subdivision thereof or of any court of competent jurisdiction; or (ii)
any act of God or war or other similar circumstance beyond the control
of the Custodian, unless, in each case, such delay or nonperformance
is caused by (A) the negligence, misfeasance or misconduct of the
applicable Person, or (B) a malfunction or failure of equipment
operated or utilized by the applicable Person other than a malfunction
or failure beyond such Person's control and which could not reasonably
be anticipated and/or prevented by such Person.
(c) Mitigation by Custodian. Upon the occurrence of any event
which causes any loss, damage or expense to any Fund or Portfolio, (i)
the Custodian shall promptly notify the applicable Fund or Portfolio
of the occurrence of such event, (ii) the Custodian shall cause any
applicable Domestic Subcustodian or Foreign Subcustodian to use all
commercially reasonable efforts and take all reasonable steps under
the circumstances to mitigate the effects of such event and to avoid
continuing harm to the Funds and the Portfolios, and (iii) the
Custodian shall use its best efforts to cause any applicable Interim
Subcustodian, Special Subcustodian or Eligible Securities Depository
to use all commercially reasonable efforts and take all reasonable
steps under the circumstances to mitigate the effects of such event
and to avoid continuing harm to the Funds and the Portfolios.
(d) Advice of Counsel. The Custodian shall be entitled to
receive and act upon advice of counsel on all matters. The Custodian
shall be without liability for any action reasonably taken or
reasonably omitted in good faith pursuant to the advice of (i) counsel
for the applicable Fund or Portfolio, or (ii) at the expense of the
Custodian, such other counsel as the applicable Fund(s) and the
Custodian may agree upon; provided however, 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 standard of care set
forth in Section 5.01(a).
(e) Liability for Past Records. The Custodian shall have no
liability in respect of any loss, damage or expense suffered by a
Fund, insofar as such loss, damage or expense arises from the
performance of the Custodian's duties hereunder by reason of the
Custodian's reliance upon records that were maintained for such Fund
by entities other than the Custodian prior to the Custodian's
appointment as custodian for such Fund.
Section 5.02. Liability of Custodian for Actions of Other Persons.
(a) Domestic Subcustodians and Foreign Subcustodians. The
Custodian shall be liable for the actions or omissions of any Domestic
Subcustodian or any Foreign Subcustodian to the same extent as if such
action or omission was performed by the Custodian itself. In the event
of any direct loss, damage or expense suffered or incurred by a Fund
that is or was directly caused by or resulting directly from the
actions or omissions of any Domestic Subcustodian or Foreign
Subcustodian for which the Custodian would otherwise be liable, the
Custodian shall promptly reimburse such Fund in the amount of any such
loss, damage or expense. Notwithstanding the foregoing, the Custodian
shall be without liability for any loss, damage or expense caused by
or resulting from the insolvency of any Domestic Subcustodian or
Foreign Subcustodian that is not a wholly owned subsidiary of the
Custodian; provided, however, that the foregoing exculpation of the
Custodian for liability as to a particular Domestic Subcustodian or
Foreign Subcustodian shall not be applicable to any Domestic
Subcustodian or Foreign Subcustodian appointed after the date hereof
until the Fund has received 30 calendar days' notice of such
appointment and during such 30-calendar-day period, the Custodian
shall, if requested by the Fund, provide the Fund with such publicly
available portion of the financial information regarding the
Subcustodian that the Custodian reviewed in connection with its
assessment of the financial stability of the proposed Subcustodian.
(b) Interim Subcustodians. Notwithstanding the provisions of
Section 5.01 to the contrary, the Custodian shall not be liable to a
Fund for any loss, damage or expense suffered or incurred by such Fund
or any of its Portfolios resulting from the actions or omissions of an
Interim Subcustodian unless such is a direct loss, damage or expense
suffered or incurred by such Fund and is directly caused by, or
results directly from, the negligence, misfeasance or misconduct of
the Custodian; provided however, in the event of any such loss, damage
or expense, the Custodian shall take all reasonable steps to enforce
such rights as it may have against such Interim Subcustodian to
protect the interests of the Funds and the Portfolios. Notwithstanding
the foregoing, the Custodian shall be without liability for any loss,
damage or expense caused by or resulting from the insolvency of any
Interim Subcustodian.
(c) Special Subcustodians and Additional Custodians.
Notwithstanding the provisions of Section 5.01 to the contrary and
except as otherwise provided in any subcustodian agreement to which
the Custodian, a Fund and any Special Subcustodian or Additional
Custodian are parties, the Custodian shall not be liable to a Fund for
any loss, damage or expense suffered or incurred by such Fund or any
of its Portfolios resulting from the actions or omissions of a Special
Subcustodian or Additional Subcustodian, unless such is a direct loss,
damage or expense suffered or incurred by such Fund and is directly
caused by, or results directly from, the negligence, misfeasance or
misconduct of the Custodian; provided however, in the event of any
such loss, damage or expense, the Custodian shall take all reasonable
steps to enforce such rights as it may have against any Special
Subcustodian or Additional Custodian to protect the interests of the
Funds and the Portfolios. Notwithstanding the foregoing, the Custodian
shall be without liability for any loss, damage or expense caused by
or resulting from the insolvency of any Special Subcustodian or
Additional Custodian.
(d) Securities Systems and Eligible Securities Depositories.
Notwithstanding the provisions of Section 5.01 to the contrary, the
Custodian shall not be liable to a Fund for any loss, damage or
expense suffered or incurred by such Fund or any of its Portfolios
resulting from the use by the Custodian of a Securities System or
Eligible Securities Depository, unless such is a direct loss, damage
or expense suffered or incurred by such Fund and is directly caused
by, or results directly from, the negligence, misfeasance or
misconduct of the Custodian; provided however, in the event of any
such loss, damage or expense, the Custodian shall take all reasonable
steps to enforce such rights as it may have against the Securities
System or Eligible Securities Depository to protect the interests of
the Funds and the Portfolios. Notwithstanding the foregoing, the
Custodian shall be without liability for any loss, damage or expense
caused by or resulting from the insolvency of any Securities System or
Eligible Securities Depository.
Section 5.03. Indemnification.
(a) Indemnification Obligations of the Funds. Subject to the
limitations set forth in this Agreement, each Fund severally (and not
jointly nor jointly and severally) agrees to indemnify and hold
harmless the Custodian and its nominees from all direct loss, damage
and expense, and reasonable attorneys' fees, suffered or incurred by
the Custodian or its nominee caused by or arising from actions taken
by the Custodian on behalf of such Fund or its Portfolio in the
performance of its duties and obligations under this Agreement;
provided however, that such indemnity shall not apply to loss, damage,
expense or attorneys' fees occasioned by or resulting from the
negligence, misfeasance or misconduct of the Custodian or its nominee
(for the avoidance of doubt, the term "nominee" as used in this
Article V shall not include Interim Custodians, Special Subcustodians,
Additional Custodians, Eligible Securities Depositories or Securities
Systems); provided, further, that the Custodian shall not be entitled
to indemnification as to any matter to the extent that the loss,
damage, expenses or attorneys' fees is the result of the Custodian's
breach of the applicable standard of care under this Agreement, except
for any liability arising out of the insolvency of any Subcustodian,
as to which the indemnification obligation of each Fund and Portfolio
shall not be limited. In addition, each Fund agrees severally (and not
jointly nor jointly and severally) to indemnify any Person against any
liability incurred by reason of taxes assessed to such Person, or
other loss, damage, expenses or attorneys' fees incurred by such
Person, resulting from the fact that securities and other property of
such Fund's Portfolios are registered in the name of such Person;
provided however, that in no event shall such indemnification be
applicable to income, franchise or similar taxes which may be imposed
or assessed against any Person.
(b) Indemnification Obligation of the Custodian. Subject to
the limitations set forth in this Agreement, the Custodian agrees to
indemnify and hold harmless each Fund, on behalf of its Portfolios,
from all direct loss, damage and expense, and reasonable attorneys'
fees, suffered or incurred by such Fund on behalf of its Portfolios
and resulting directly from the failure of the Custodian to exercise
the standard of care set forth in Section 5.01(a) hereof; provided
however, that such indemnity shall not apply to loss, damage, expense
or attorneys' fees occasioned by or resulting from the negligence,
misfeasance or misconduct of any Fund.
(c) Notice of Litigation; Right to Prosecute, Etc. No Fund or
Portfolio shall be liable for indemnification under this Section 5.03
unless a Person shall have promptly notified such Fund or Portfolio in
writing of the commencement of any litigation or proceeding brought
against such Person in respect of which indemnity may be sought under
this Section 5.03. With respect to claims in such litigation or
proceedings for which indemnity by a Fund or Portfolio may be sought
and subject to applicable law and the ruling of any court of competent
jurisdiction, such Fund or Portfolio shall be entitled to participate
in any such litigation or proceeding and, after written notice from
such Fund or Portfolio to any Person, such Fund or Portfolio may
assume the defense of such litigation or proceeding with counsel of
its choice at its own expense in respect of that portion of the
litigation for which such Fund or Portfolio may be subject to an
indemnification obligation; provided however, a Person shall be
entitled to participate in (but not control) at its own cost and
expense, the defense of any such litigation or proceeding if such Fund
or Portfolio has not acknowledged in writing its obligation to
indemnify the Person with respect to such litigation or proceeding. If
such Fund or Portfolio is not permitted to participate or control such
litigation or proceeding under applicable law or by a ruling of a
court of competent jurisdiction, such Person shall reasonably
prosecute such litigation or proceeding. A Person shall not consent to
the entry of any judgment or enter into any settlement in any such
litigation or proceeding without providing each applicable Fund or
Portfolio with adequate notice of any such settlement or judgment, and
without each such Fund's or Portfolio's prior written consent. All
Persons shall submit written evidence to each applicable Fund or
Portfolio with respect to any cost or expense for which they are
seeking indemnification in such form and detail as such Fund or
Portfolio may reasonably request.
Section 5.04. Fund's Right to Proceed. Notwithstanding anything to the
contrary contained herein, each Fund or Portfolio shall have, at its election
upon reasonable notice to the Custodian, the right to enforce, to the extent
permitted by any applicable agreement and applicable law, the Custodian's
rights against any Subcustodian, Securities System, Eligible Securities
Depository or other Person for any loss, damage or expense caused such Fund or
Portfolio by such Subcustodian, Securities System, Eligible Securities
Depository or other Person, and shall be entitled to enforce the rights of the
Custodian with respect to any claim against such Subcustodian, Securities
System, Eligible Securities Depository or other Person, which the Custodian may
have as a consequence of any such loss, damage or expense, if and to the extent
that such Fund or Portfolio has not been made whole for any such loss or
damage. If the Custodian makes such Fund or Portfolio whole for any such loss
or damage, the Custodian shall retain the ability to enforce its rights
directly against such Subcustodian, Securities System, Eligible Securities
Depository or other Person. Upon such Fund's or Portfolio's election to enforce
any rights of the Custodian under this Section 5.04, such Fund or Portfolio
shall reasonably prosecute all actions and proceedings directly relating to the
rights of the Custodian in respect of the loss, damage or expense incurred by
such Fund or Portfolio; provided that, so long as such Fund or Portfolio has
acknowledged in writing its obligation to indemnify the Custodian under Section
5.03 hereof with respect to such claim, such Fund or Portfolio shall retain the
right to settle, compromise and/or terminate any action or proceeding in
respect of the loss, damage or expense incurred by such Fund or Portfolio
without the Custodian's consent and provided further, that if such Fund or
Portfolio has not made an acknowledgment of its obligation to indemnify, such
Fund or Portfolio shall not settle, compromise or terminate any such action or
proceeding without the written consent of the Custodian, which consent shall
not be unreasonably withheld or delayed. The Custodian agrees to cooperate with
each Fund or Portfolio and take all actions reasonably requested by such Fund
or Portfolio in connection with such Fund or Portfolio's enforcement of any
rights of the Custodian. Each Fund or Portfolio agrees to reimburse the
Custodian for all reasonable out-of-pocket expenses incurred by the Custodian
on behalf of such Fund or Portfolio in connection with the fulfillment of its
obligations under this Section 5.04; provided, however, that such reimbursement
shall not apply to expenses occasioned by or resulting from the failure of the
Custodian to exercise the standard of care set forth in Section 5.01(a) hereof.
ARTICLE VI
COMPENSATION
On behalf of each of its Portfolios, each Fund shall compensate the
Custodian for its services and expenses in such amounts, and at such times, as
may be agreed upon in writing, from time to time, by the Custodian and such
Fund.
ARTICLE VII
TERM AND TERMINATION
Section 7.01. Termination of Agreement as to One or More Funds. This
Agreement shall become effective as of the date first above-written and shall
remain in full force and effect for a period of two (2) years (the "Initial
Term"). During the Initial Term and thereafter, each Fund, at its discretion,
may terminate this Agreement in the event of any of the following termination
events: (i) such Fund's determination that there is a reasonable basis to
conclude that the Custodian is insolvent or that the financial condition of the
Custodian is deteriorating in any material respect, in which case termination
shall take effect upon the Custodian's receipt of written notice of
termination, or at such later time as such Fund shall designate; (ii) the
Custodian fails to (a) perform in a material respect and on more than one
occasion the safekeeping services set forth in Section 2.01 hereof, and (b)
cure or establish a remedial plan, acceptable to such Fund acting reasonably,
in each case within 30 days of written notice thereof; or (iii) in such Fund's
reasonable opinion, the Custodian has not achieved one or more of the
performance measures set forth in any service level document (a "Service Level
Document") that may be established by the parties, and a plan or revised plan
has not been put into place in accordance with the following procedures: In the
event that such 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, the Fund may, in its discretion, submit a written
deficiency notice to the Custodian outlining the performance deficiencies
("Deficiency Notice"). Such Deficiency Notice must be provided to the Custodian
within 20 days of the end of such calendar quarter. After receipt of such
notice, the Custodian shall present the Fund with a written plan to address the
deficiency(ies) 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
the Custodian fails to submit a Plan within such 30-day period, Fund may
terminate this Agreement upon 60 days' written notice to the Custodian. The
Fund, in its discretion, may accept or reject the Plan by notifying the
Custodian in writing ("Response Notice") within 15 days after submission of the
Plan. If the Fund fails to provide a Response Notice within such 15-day period,
it shall be presumed that Fund accepted the Plan. In the event the Fund submits
a Response Notice rejecting the Plan, the Custodian shall submit a revised plan
("Revised Plan") to the Fund. Such Revised Plan must be provided to the Fund
within 30 days after provision of the Response Notice rejecting the Plan. If
the Custodian fails to submit a Revised Plan within such 30-day period, the
Fund may terminate the Agreement upon 60 days' written notice to the Custodian.
The Fund, in its sole discretion, may accept or reject the Revised Plan by
notifying the Custodian in writing ("Revised Plan Notice"). Any Revised Plan
Notice must be submitted to the Custodian within 15 days after provision of the
Revised Plan. If Fund fails to provide a Revised Plan Notice within such 15-day
period, it shall be presumed that the Fund accepted the Revised Plan. If Fund
provides a Revised Plan Notice to the Custodian that rejects the Revised Plan,
the Fund may, in its sole discretion, terminate this Agreement upon 60 days'
written notice to the Custodian. Such termination notice must be submitted to
the Custodian within 60 days after provision of the Revised Plan Notice.
Following the Initial Term, with respect to each Fund, this Agreement
shall continue in full force and effect until the first to occur of: (a)
termination by the Custodian by an instrument in writing delivered or mailed to
such Fund, such termination to take effect not sooner than ninety (90) days
after the date of such delivery; (b) termination by such Fund by an instrument
in writing delivered or mailed to the Custodian, such termination to take
effect not sooner than thirty (30) days after the date of such delivery; or (c)
termination by such Fund by written notice delivered to the Custodian, based
upon such Fund's determination that there is a reasonable basis to conclude
that the Custodian is insolvent or that the financial condition of the
Custodian is deteriorating in any material respect, in which case termination
shall take effect upon the Custodian's receipt of such notice or at such later
time as such Fund shall designate. In the event of termination pursuant to this
Section 7.01 by any Fund (a "Terminating Fund"), each Terminating Fund shall
make payment of all accrued fees and unreimbursed expenses and all overdrafts
and related charges with respect to such Terminating Fund within a reasonable
time following termination and delivery of a statement to the Terminating Fund
setting forth such fees and expenses. The Custodian may retain such portion of
a Terminating Fund's assets as is necessary to satisfy any obligation of such
Terminating Fund to the Custodian. Each Terminating Fund shall identify in any
notice of termination a successor custodian or custodians to which the cash,
securities and other assets of its Portfolios shall, upon termination of this
Agreement with respect to such Terminating Fund, and following the satisfaction
of all obligations of such Terminating Fund to State Street Bank and Trust
Company arising under this Agreement and/or such Terminating Fund's fund
accounting agreement with State Street Bank and Trust Company, be delivered. In
the event that no written notice designating a successor custodian shall have
been delivered to the Custodian on or before the date when termination of this
Agreement as to a Terminating Fund shall become effective, the Custodian may
deliver to a bank or trust company 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 and other assets of such Terminating Fund's
Portfolios held by the Custodian and all instruments held by the Custodian
relative thereto and all other property of the Terminating Fund's Portfolios
held by the Custodian under this Agreement. Thereafter, such bank or trust
company shall be the successor of the Custodian with respect to such
Terminating Fund under this Agreement. In the event that securities and other
assets of such Terminating Fund's Portfolios remain in the possession of the
Custodian after the date of termination hereof with respect to such Terminating
Fund owing to a failure of the Terminating Fund to appoint a successor
custodian, the Custodian shall be entitled to compensation for its services in
accordance with the fee schedule most recently in effect, for such period as
the Custodian retains possession of such securities and other assets, and the
provisions of this Agreement relating to the duties and obligations of the
Custodian and the Terminating Fund shall remain in full force and effect. In
the event of the appointment of a successor custodian, it is agreed that,
subject to the satisfaction of all obligations of such Terminating Fund to the
Custodian, the cash, securities and other property owned by a Terminating Fund
and held by the Custodian, any Subcustodian or nominee shall be delivered to
the successor custodian; and the Custodian agrees to reasonably cooperate with
such Terminating Fund in the execution of documents and performance of other
actions necessary or desirable in order to substitute the successor custodian
for the Custodian under this Agreement.
Section 7.02. Termination as to One or More Portfolios. During the
Initial Term, this Agreement may be terminated as to one or more of a Fund's
Portfolios (but less than all of its Portfolios) in accordance with Section
7.01. Following the Initial Term, this Agreement may be terminated as to one or
more of a Fund's Portfolios (but less than all of its Portfolios) by delivery
by a Fund, on behalf of its Portfolios, to the Custodian of an amended Appendix
A deleting such Portfolios pursuant to Section 9.07(b) hereof, in which case
termination as to such deleted Portfolios shall take effect thirty (30) days
after the date of such delivery. The execution and delivery of an amended
Appendix A which deletes one or more Portfolios shall constitute a termination
of this Agreement only with respect to such deleted Portfolio(s), shall be
governed by the preceding provisions of Section 7.01 as to the identification
of a successor custodian and the delivery of cash, securities and other assets
of the Portfolios so deleted, and shall not affect the obligations of the
Custodian and any Fund hereunder with respect to the other Portfolios set forth
in Appendix A, as amended from time to time.
ARTICLE VIII
DEFINED TERMS
The following terms are defined in the following sections:
Term Section
---- -------
Account 2.23(a)
ADRs 2.06
Additional Custodian(s) 2.24(a)
Authorized Person(s) 3.02
Bank Account(s) 2.22(a)
Bank Loans 2.15
Banking Institution(s) 2.12
Broker's Futures Margin Account(s) 2.10
Business Continuity/Disaster Recovery Plan 5.01(b)
Business Day 2.16(b)
Custodian Preamble
Deficiency Notice 7.01
Distribution Account(s) 2.17
Domestic Subcustodian(s) 4.01
Eligible Securities Depository 2.23(b)
Financing Documents 2.15
Foreign Subcustodian(s) 4.02(a)(i)
Fund(s) Preamble
Fund of Funds Portfolio(s) 2.02(c)
Initial Term 7.01
Institutional Client(s) 2.03
Interest Bearing Deposit(s) 2.12
Interim Subcustodian(s) 4.02(b)
Loan Payment(s) 2.16(b)
MFS 2.02(c)
Person 5.01(b)
Plan 7.01
Portfolio(s) Preamble
Procedural Agreement 2.10
Proper Instructions 3.01(a)
Response Notice 7.01
Revised Plan 7.01
Revised Plan Notice 7.01
Rule 17f-5 2.23(b)
Rule 17f-7 2.23(b)
SEC 2.23(a)
Securities System(s) 2.23(a)
Service Level Document 7.01
Shares 2.17
Special Instructions 3.01(b)
Special Subcustodian(s) 4.03
Subcustodian(s) Article IV
Terminating Fund 7.01
Underlying Fund(s) 2.02(c)
Underlying Fund Transfer Agent 2.02(c)
Underlying Shares 2.02(c)
UCC 2.02(a)
US Securities 2.19
1940 Act Preamble
ARTICLE IX
MISCELLANEOUS
Section 9.01. Execution of Documents, Etc.
(a) Actions by each Fund. Upon request, each Fund shall
execute and deliver to the Custodian such proxies, powers of attorney
or other instruments as may be reasonable and necessary or desirable
in connection with the performance by the Custodian or any
Subcustodian of their respective obligations to such Fund under this
Agreement or any applicable subcustodian agreement with respect to
such Fund, provided that the exercise by the Custodian or any
Subcustodian of any such rights shall in all events be in compliance
with the terms of this Agreement.
(b) Actions by Custodian. Upon receipt of Proper
Instructions, the Custodian shall execute and deliver to each
applicable Fund or to such other parties as such Fund(s) may designate
in such Proper Instructions, all such documents, instruments or
agreements as may be reasonable and necessary or desirable in order to
effectuate any of the transactions contemplated hereby.
Section 9.02. Representative Capacity; Nonrecourse Obligations. A COPY
OF THE DECLARATION OF TRUST OR OTHER ORGANIZATIONAL DOCUMENT OF EACH FUND THAT
IS ORGANIZED AS A MASSACHUSETTS BUSINESS TRUST IS ON FILE WITH THE SECRETARY OF
THE COMMONWEALTH OF MASSACHUSETTS, AND NOTICE IS HEREBY GIVEN THAT THIS
AGREEMENT IS NOT EXECUTED ON BEHALF OF THE MEMBERS OF THE BOARD OF TRUSTEES OR
MEMBERS OF THE BOARD OF MANAGERS OF ANY FUND AS INDIVIDUALS, AND THE
OBLIGATIONS OF THIS AGREEMENT ARE NOT BINDING UPON ANY OF THE TRUSTEES,
MANAGERS, OFFICERS, SHAREHOLDERS OR PARTNERS OF ANY FUND INDIVIDUALLY, BUT ARE
BINDING ONLY UPON THE ASSETS AND PROPERTY OF EACH FUND'S RESPECTIVE PORTFOLIOS.
THE CUSTODIAN AGREES THAT NO SHAREHOLDER, TRUSTEE, MANAGER, OFFICER OR PARTNER
OF ANY FUND MAY BE HELD PERSONALLY LIABLE OR RESPONSIBLE FOR ANY OBLIGATIONS OF
ANY FUND ARISING OUT OF THIS AGREEMENT.
Section 9.03. Several Obligations of the Funds and the Portfolios.
WITH RESPECT TO ANY OBLIGATIONS OF A FUND ON BEHALF OF ANY OF ITS PORTFOLIOS
ARISING OUT OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE OBLIGATIONS
ARISING UNDER SECTIONS 5.03, 5.04 AND ARTICLE VI HEREOF, THE CUSTODIAN SHALL
LOOK FOR PAYMENT OR SATISFACTION OF ANY OBLIGATION SOLELY TO THE ASSETS AND
PROPERTY OF THE PORTFOLIO TO WHICH SUCH OBLIGATION RELATES AS THOUGH EACH FUND
HAD SEPARATELY CONTRACTED WITH THE CUSTODIAN BY SEPARATE WRITTEN INSTRUMENT
WITH RESPECT TO EACH OF ITS PORTFOLIOS. CONSISTENT WITH THE FOREGOING, THE
OBLIGATIONS OF EACH FUND AND PORTFOLIO UNDER THIS AGREEMENT ARE SEVERAL AND
NEITHER JOINT NOR JOINT AND SEVERAL.
Section 9.04. Representations, Warranties and Covenants.
(a) Representations, Warranties and Covenants of Each Fund.
Each Fund hereby severally and not jointly represents and warrants
that each of the following shall be true, correct and complete with
respect to it at all times during the term of this Agreement: (i) the
Fund is duly organized under the laws of its jurisdiction of
organization and is registered as an open-end or closed-end management
investment company under the 1940 Act; and (ii) the execution,
delivery and performance by the Fund of this Agreement on behalf of
each applicable Portfolio are (w) within its power, (x) have been duly
authorized by all necessary action, and (y) will not (A) contribute to
or result in a breach of or default under or conflict with any
existing law, order, regulation or ruling of any governmental or
regulatory agency or authority, or (B) violate any provision of the
Fund's corporate charter, Declaration of Trust or other organizational
document, or bylaws, or any amendment thereof or any provision of its
most recent Prospectus or Statement of Additional Information.
(b) Representations, Warranties and Covenants of the
Custodian. The Custodian hereby represents and warrants to each Fund
that each of the following shall be true, correct and complete at all
times during the term of this Agreement: (i) the Custodian is duly
organized under the laws of its jurisdiction of organization and
qualifies to act as a custodian to open-end and closed-end management
investment companies under the provisions of the 1940 Act; (ii) the
execution, delivery and performance by the Custodian of this Agreement
are (w) within its power, (x) have been duly authorized by all
necessary action, and (y) will not (A) contribute to or result in a
breach of or default under or conflict with any existing law, order,
regulation or ruling of any governmental or regulatory agency or
authority, or (B) violate any provision of the Custodian's corporate
charter, or other organizational document, or bylaws, or any amendment
thereof, (iii) the Custodian is a "Qualified Foreign Bank" (as defined
in Rule 17f-5), a "U.S. Bank" (as defined in Rule 17f-5) or an entity
which by order of the SEC or by no-action letter of the staff of the
SEC is exempt from meeting the requirements of an "Eligible Foreign
Custodian" (as set forth in Rule 17f-5), (iv) the Custodian qualifies
as a "Primary Custodian" (as defined in Rule 17f-7) and accepts the
responsibilities thereof with respect to the Funds and Portfolios, (v)
the Custodian has entered into policies, bonds or similar arrangements
which provide the types and minimum amounts of insurance and related
coverage set forth in Section 2.30 hereof and such policies, bonds or
similar arrangements are in full force and effect; and (vi) the
Custodian shall maintain and keep current a Business
Continuity/Disaster Recovery Plan and the capacity to execute such
Business Continuity/Disaster Recovery Plan.
Section 9.05. Application of SEC Rules; Interpretation of Agreement in
Accordance with SEC or Publicly Available Interpretative Letters of the SEC
Staff. To the extent this Agreement refers to Rule 17f-5, Rule 17f-6, Rule
17f-7, or any other rule promulgated by the SEC under the federal securities
laws, including the 1940 Act, this Agreement shall be deemed to refer to those
rules to the extent relevant and shall be interpreted in accordance with those
rules as they may be amended or restated from time to time or otherwise
interpreted or modified in accordance with relevant SEC or publicly available
interpretative letters of the SEC staff. This Agreement, including the duties
and obligations of the Custodian hereunder, shall be interpreted in accordance
with the applicable requirements of the federal securities laws, as such laws
may be interpreted or modified from time to time in accordance with relevant
SEC or publicly available interpretative letters of the SEC Staff.
Section 9.06. Entire Agreement. This Agreement constitutes the entire
understanding and agreement of the Fund, on the one hand, and the Custodian, on
the other, with respect to the subject matter hereof and accordingly,
supersedes as of the effective date of this Agreement any custodian agreement
heretofore in effect between each Fund and the Custodian.
Section 9.07. Waivers and Amendments. No provision of this Agreement
may be waived, amended or terminated except by a statement in writing signed by
the party against which enforcement of such waiver, amendment or termination is
sought; provided, however: (a) Appendix A listing the Portfolios of each Fund
for which the Custodian serves as custodian may be amended from time to time to
add one or more Portfolios for one or more Funds, by each applicable Fund's
execution and delivery to the Custodian of an amended Appendix A, and the
execution of such amended Appendix by the Custodian, in which case such
amendment shall take effect immediately upon execution by the Custodian; (b)
subject to Article VII hereof, Appendix A may be amended from time to time to
delete one or more Portfolios (but less than all of the Portfolios) of one or
more of the Funds, by each applicable Fund's execution and delivery to the
Custodian of an amended Appendix A, in which case such amendment shall take
effect thirty (30) days after such delivery, unless otherwise agreed by the
Custodian and each applicable Fund in writing; (c) Appendix B listing Foreign
Subcustodians, Eligible Securities Depositories, Special Subcustodians and
Additional Custodians, may be amended from time to time to add or delete one or
more Foreign Subcustodians, Eligible Securities Depositories, Special
Subcustodians or Additional Custodians for a Fund or Funds, with respect to
Foreign Subcustodians or Eligible Securities Depositories, by the Custodian's
delivery of appropriate notice to the Fund, in which case such amendment shall
take effect immediately upon such delivery of notice; and, with respect only to
Special Subcustodians or Additional Custodians, by either party's execution and
delivery to the other party hereto of an amended Appendix B; and (d) Appendix D
listing the Fund of Funds Portfolios for which the Custodian serves as
custodian may be amended from time to time to add or delete one or more of the
Fund of Funds Portfolios, by each applicable Fund's or Portfolio's execution
and delivery to the Custodian of an amended Appendix D, and the execution of
such amended Appendix by the Custodian, in which case such amendment shall take
effect immediately upon execution by the Custodian.
Section 9.08. Interpretation. In connection with the operation of this
Agreement, the Custodian and any Fund may agree in writing from time to time on
such provisions interpretative of or in addition to the provisions of this
Agreement with respect to such Fund as may in their joint opinion be consistent
with the general tenor of this Agreement. No interpretative or additional
provisions made as provided in the preceding sentence shall be deemed to be an
amendment of this Agreement or affect any other Fund.
Section 9.09. Captions. Headings contained in this Agreement, which
are included as convenient references only, shall have no bearing upon the
interpretation of the terms of the Agreement or the obligations of the parties
hereto.
Section 9.10. Governing Law. Insofar as any question or dispute may
arise in connection with the custodianship of foreign securities pursuant to an
agreement with a Foreign Subcustodian that is governed by the laws of the State
of New York, the provisions of this Agreement shall be construed in accordance
with and governed by the laws of the State of New York, provided that in all
other instances this Agreement shall be construed in accordance with and
governed by the laws of The Commonwealth of Massachusetts, in each case without
giving effect to principles of conflicts of law.
Section 9.11. Notices. Except in the case of Proper Instructions or
Special Instructions, notices and other writings contemplated by this Agreement
shall be delivered by hand or by facsimile transmission (provided that in the
case of delivery by facsimile transmission, notice shall also be mailed postage
prepaid to the parties at the following addresses:
(a) If to any Fund:
[Trust Name]
c/o Massachusetts Financial Services Company
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Treasurer of the MFS Funds
Telephone: 000-000-0000
(b) If to the Custodian:
State Street Bank and Trust Company
U.S. Investor Services Division, LCC/2S
Lafayette Corporate Center
0 Xxxxxx xx Xxxxxxxxx
Xxxxxx, XX 00000-0000
Attn: W. Xxxxxx Xxx, Senior Vice President
Telephone: 000-000-0000
Telefax: 000-000-0000
with a copy to:
Xxxx Xxxxx Zeven, Senior Vice President & Senior Managing Counsel
State Street Bank and Trust Company
Legal Division, LCC/2S
Lafayette Corporate Center
0 Xxxxxx xx Xxxxxxxxx
Xxxxxx, XX 00000-0000
Telephone: 000-000-0000
Telefax: 617-662- 3805
or to such other address as a Fund or the Custodian may have designated in
writing to the other.
Section 9.12. Assignment. This Agreement shall be binding on and shall
inure to the benefit of each Fund severally and the Custodian and their
respective successors and assigns, provided that, subject to the provisions of
Section 7.01 hereof, neither the Custodian nor any Fund may assign this
Agreement or any of its rights or obligations hereunder without the prior
written consent of the other party.
Section 9.13. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original. With respect
to each Fund, this Agreement shall become effective when one or more
counterparts have been signed and delivered by such Fund and the Custodian.
Section 9.14. Consent to Recording. Subject to Section 9.14, each Fund
and the Custodian hereby agree that each may electronically record all
telephonic conversations between them and that any such recordings may be
submitted in evidence in any proceedings relating to this Agreement.
Section 9.15. Confidentiality: Survival of Obligations. The parties
hereto agree that each shall treat confidentially all information provided by
each party to the other regarding its business and operations. All confidential
information provided by a party hereto shall be used by any other party hereto
solely for the purpose of rendering services pursuant to this Agreement and,
except as may be required in carrying out this Agreement, shall not be
disclosed to any third party without the prior consent of such providing party.
During the term of this Agreement, the Custodian agrees that it will maintain
and enforce policies which prohibit the Custodian and its employees from
engaging in securities transactions based on knowledge of the portfolio
holdings of any Portfolio. In addition, the Custodian is familiar with
Regulation S-P and agrees not to disclose or use non-public personal
information about Fund or Portfolio shareholders except in accordance with
Regulation S-P and the Funds' applicable privacy policies. The foregoing shall
not be applicable to any information that is publicly available when provided
or thereafter becomes publicly available other than through a violation of this
Agreement, or that is required to be disclosed by any bank examiner of the
Custodian or any Subcustodian, any auditor of the parties hereto, by judicial
or administrative process or otherwise by applicable law or regulation. The
provisions of this Section 9.15 and Sections 9.01, 9.02, 9.03, 9.10, Section
2.26, Section 3.04, Section 7.01, Article V and Article VI hereof and any other
rights or obligations incurred or accrued by any party hereto prior to
termination of this Agreement shall survive any termination of this Agreement,
including a termination pursuant to Section 7.02.
Section 9.16. Reproduction of Documents. This Agreement and all
schedules, addenda, exhibits, 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.
Section 9.17. Remote Access Services Addendum. The Custodian and each
Fund agree to be bound by the terms of the Remote Access Services Addendum
attached hereto.
Section 9.18. Shareholder Communications Election. Rule 14b-2 under
the Securities Exchange Act of 1934 requires banks which hold securities for
the account of customers to respond to requests by issuers of securities for
the names, addresses and holdings of beneficial owners of securities of that
issuer held by the bank unless the beneficial owner has expressly objected to
disclosure of this information. In order to comply with the rule, the Custodian
needs the Fund to indicate whether it authorizes the Custodian to provide the
Fund's name, address, and share position to requesting companies whose
securities the Fund owns. If the Fund tells the Custodian "no", the Custodian
will not provide this information to requesting companies. If the Fund tells
the Custodian "yes" or does not check either "yes" or "no" below, the Custodian
is required by the rule to treat the Fund as consenting to disclosure of this
information for all securities owned by the Fund or any funds or accounts
established by the Fund. For the Fund's protection, the rule prohibits the
requesting company from using the Fund's name and address for any purpose other
than corporate communications. Please indicate below whether the Fund consents
or objects by checking one of the alternatives below.
YES [ ] The Custodian is authorized to release the Fund's name, address, and
share positions.
NO [X] The Custodian is not authorized to release the Fund's name, address,
and share positions.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to
be executed in its name and behalf on the day and year first above written.
Each of the Investment Companies listed on
Appendix A Attached Hereto, on Behalf of
each of Their Respective Portfolios
By: XXXXX X. XXXXX
--------------------------------
Name: Xxxxx X. Xxxxx
Title: President
STATE STREET BANK AND TRUST COMPANY
By: XXXXXX X. XXXXXX
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
[Signature Page to Custodian Agreement]
APPENDIX A
TO
CUSTODIAN AGREEMENT
BETWEEN
STATE STREET BANK AND TRUST COMPANY
AND
EACH OF THE INVESTMENT COMPANIES
DATED AS OF DECEMBER 18, 2006
Except as may be otherwise indicated below, with respect to each fund listed on
this Appendix A, such fund shall become a "Fund" party to the Custodian
Agreement effective in 2007 upon the day immediately following such fund's
respective fiscal year end (FYE) reflected below.
------------------------------------------------------------------------------
TRUST FUND (FYE)
------------------------------------------------------------------------------
Stand-Alone Trusts Massachusetts Investors Trust (12/31)
------------------------------------------------------------------------------
Closed End Funds MFS Charter Income Trust (11/30)
MFS Government Market Income Trust (11/30)
MFS Intermediate Income Trust (10/31)
MFS Multimarket Income Trust (10/31)
MFS Municipal Income Trust (10/31)
MFS Special Value Trust (10/31)
------------------------------------------------------------------------------
MFS Series Trust I MFS Cash Reserve Fund (8/31)
MFS Core Equity Fund (8/31)
MFS Core Growth Fund (8/31)
MFS New Discovery Fund (8/31)
MFS Research International Fund (8/31)
MFS Strategic Growth Fund (8/31)
MFS Technology Fund (8/31)
MFS Value Fund (8/31)
------------------------------------------------------------------------------
MFS Series Trust X MFS Aggressive Growth Allocation Fund (5/31)
MFS Conservative Allocation Fund (5/31)
MFS Emerging Markets Debt Fund (7/31)
MFS Emerging Markets Equity Fund (5/31)
MFS Floating Rate High Income Fund (8/31)
MFS Growth Allocation Fund (5/31)
MFS International Diversification Fund (5/31)
MFS International Growth Fund (5/31)
MFS International Value Fund (5/31)
MFS New Endeavor Fund (7/31)
MFS Moderate Allocation Fund (5/31)
MFS Strategic Value Fund (7/31)
------------------------------------------------------------------------------
MFS Series Trust XI MFS Mid Cap Value Fund (9/30)
MFS Union Standard Equity Fund (9/30)
------------------------------------------------------------------------------
MFS Series Trust XII MFS Lifetime Retirement Income Fund (4/30)
MFS Lifetime 2010 Fund (4/30)
MFS Lifetime 2020 Fund (4/30)
MFS Lifetime 2030 Fund (4/30)
MFS Lifetime 2040 Fund (4/30)
MFS Sector Rotational Fund (4/30) -
effective date 1/2/07
------------------------------------------------------------------------------
MFS Variable Insurance Trust MFS Capital Opportunities Series (12/31)
MFS Global Equity Series (12/31)
MFS Emerging Growth Series (12/31)
MFS High Income Series (12/31)
MFS Investors Growth Series (12/31)
MFS Investors Trust Series (12/31)
MFS Mid Cap Growth Series (12/31)
MFS Money Market Series (12/31)
MFS New Discovery Series (12/31)
MFS Research Series (12/31)
MFS Research Bond Series (12/31)
MFS Research International Series (12/31)
MFS Strategic Income Series (12/31)
MFS Total Return Series (12/31)
MFS Utilities Series (12/31)
MFS Value Series (12/31)
------------------------------------------------------------------------------
MFS/Sun Life Series Trust Bond Series (12/31)
Capital Appreciation Series (12/31)
Capital Opportunities Series (12/31)
Core Equity Series (12/31)
Emerging Growth Series (12/31)
Emerging Markets Equity Series (12/31)
Global Governments Series (12/31)
Global Growth Series (12/31)
Global Total Return Series (12/31)
Government Securities Series (12/31)
High Yield Series (12/31)
International Growth Series (12/31)
International Value Series (12/31)
Mass. Investors Growth Stock Series (12/31)
Mass. Investors Trust Series (12/31)
Mid Cap Growth Series (12/31)
Mid Cap Value Series (12/31)
Money Market Series (12/31)
New Discovery Series (12/31)
Research Series (12/31)
Research International Series (12/31)
Strategic Growth Series (12/31)
Strategic Income Series (12/31)
Strategic Value Series (12/31)
Technology Series (12/31)
Total Return Series (12/31)
Utilities Series (12/31)
Value Series (12/31)
------------------------------------------------------------------------------
Variable Accounts Capital Appreciation Variable Account (12/31)
Global Governments Variable Account (12/31)
Government Securities Variable Account (12/31)
High Yield Variable Account (12/31)
Money Market Variable Account (12/31)
Total Return Variable Account (12/31)
------------------------------------------------------------------------------
APPENDIX B
TO
CUSTODIAN AGREEMENT
BETWEEN
STATE STREET BANK AND TRUST COMPANY
AND
EACH OF THE INVESTMENT COMPANIES
LISTED ON APPENDIX A THERETO
DATED AS OF DECEMBER 18, 2006
The following is a list of Additional Custodians, Special Subcustodians,
Foreign Subcustodians and Eligible Securities Depositories under the Custodian
Agreement dated as of December 18, 2006 (the "Custodian Agreement"):
A. ADDITIONAL CUSTODIANS
None
B. SPECIAL SUBCUSTODIANS
None
C. FOREIGN SUBCUSTODIANS (as of 9/30/06)
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.
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 Public Company Ltd.
Czech Republic Eeskoslovenska 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.
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.
Deutsche Bank S.p.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)
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 The Hongkong and Shanghai Banking Corporation Limited
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 AG
New Zealand Westpac Banking Corporation
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
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 Eeskoslovenska 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 Deutsche Bank S.A.E.
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 (Thai) Public Company Limited
Togo via Societe Generale de Banques en Cote d'Ivoire,
Abidjan, Ivory Coast
Trinidad & Tobago Republic Bank Limited
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
D. ELIGIBLE SECURITIES DEPOSITORIES (as of 9/30/06)
Country Depository
------- ----------
Argentina Caja de Valores S.A.
Australia Austraclear Limited
Austria Oesterreichische 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
Euroclear Belgium
Benin Depositaire Central - Banque de Reglement
Bermuda Bermuda Securities Depository
Brazil Central de Custodia e de Liquidacao Financeira de
(CETIP) Titulos Privados
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.
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 Oy
France Euroclear France
Germany Clearstream Banking AG, Frankfurt
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
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
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 Depository & Trust Corporation
Registry of Scripless Securities (XXXX) of the
Bureau of Treasury
Poland Rejestr Papierow Wartooeciowych
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
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
Sri Lanka Central Depository System (Pvt) Limited
Sweden Vardepapperscentralen VPC AB
(Swedish Central Securities Depository)
Switzerland SegaIntersettle AG (SIS)
Taiwan - R.O.C. Taiwan Depository and Clearing Corporation
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
Central Registry Agency
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.
Uruguay Banco Central del Uruguay
Venezuela Banco Central de Venezuela
Caja Venezolana de Valores
Vietnam Vietnam Securities Depository
Zambia Bank of Zambia
XxXX Central Shares Depository Limited
TRANSNATIONAL
Euroclear
Clearstream Banking, S.A.
APPENDIX C TO THE
CUSTODIAN AGREEMENT
BETWEEN
EACH OF THE INVESTMENT COMPANIES
LISTED ON APPENDIX A THERETO
AND
STATE STREET BANK AND TRUST COMPANY
[INTENTIONALLY OMITTED]
APPENDIX D TO THE
CUSTODIAN AGREEMENT
BETWEEN
EACH OF THE INVESTMENT COMPANIES
LISTED ON APPENDIX A THERETO
AND
STATE STREET BANK AND TRUST COMPANY
DATED AS OF DECEMBER 18, 2006
A. Fund of Funds
Trust Fund
----- ----
MFS Series Trust X MFS Conservative Allocation Fund
MFS Moderate Allocation Fund
MFS Growth Allocation Fund
MFS Aggressive Growth Allocation Fund
MFS International Diversification Fund
MFS Series Trust XII MFS Lifetime Retirement Income Fund
MFS Lifetime 2010 Fund
MFS Lifetime 2020 Fund
MFS Lifetime 2030 Fund
MFS Lifetime 2040 Fund
FUNDS TRANSFER ADDENDUM
[LOGO]
STATE STREET
Serving Institutional Investors Worldwide(SM)
OPERATING GUIDELINES
1. OBLIGATION OF THE SENDER: State Street is authorized to promptly debit
Client's account(s) upon the receipt of a payment order in compliance with the
selected Security Procedure chosen for funds transfer and in the amount of
money that State Street has been instructed to transfer. State Street shall
execute payment orders in compliance with the Security Procedure and with the
Client's instructions on the execution date provided that such payment order is
received by the customary deadline for processing such a request, unless the
payment order specifies a later time. All payment orders and communications
received after this time will be deemed to have been received on the next
business day.
2. SECURITY PROCEDURE: The Client acknowledges that the Security Procedure it
has designated on the Selection Form was selected by the Client from Security
Procedures offered by State Street. The Client agrees that the Security
Procedures are reasonable and adequate for its wire transfer transactions and
agrees to be bound by any payment orders, amendments and cancellations, whether
or not authorized, issued in its name and accepted by State Street after being
confirmed by any of the selected Security Procedures. The Client also agrees to
be bound by any other valid and authorized payment order accepted by State
Street. The Client shall restrict access to confidential information relating
to the Security Procedure to authorized persons as communicated in writing to
State Street. The Client must notify State Street immediately if it has reason
to believe unauthorized persons may have obtained access to such information or
of any change in the Client's authorized personnel. State Street shall verify
the authenticity of all instructions according to the Security Procedure.
3. ACCOUNT NUMBERS: State Street shall process all payment orders on the basis
of the account number contained in the payment order. In the event of a
discrepancy between any name indicated on the payment order and the account
number, the account number shall take precedence and govern. Financial
institutions that receive payment orders initiated by State Street at the
instruction of the Client may also process payment orders on the basis of
account numbers, regardless of any name included in the payment order. State
Street will also rely on any financial institution identification numbers
included in any payment order, regardless of any financial institution name
included in the payment order.
4. REJECTION: State Street reserves the right to decline to process or delay
the processing of a payment order which (a) is in excess of the collected
balance in the account to be charged at the time of State Street's receipt of
such payment order; (b) if initiating such payment order would cause State
Street, in State Street's sole judgment, to exceed any volume, aggregate
dollar, network, time, credit or similar limits upon wire transfers which are
applicable to State Street; or (c) if State Street, in good faith, is unable to
satisfy itself that the transaction has been properly authorized.
5. CANCELLATION OR AMENDMENT: State Street shall use reasonable efforts to act
on all authorized requests to cancel or amend payment orders received in
compliance with the Security Procedure provided that such requests are received
in a timely manner affording State Street reasonable opportunity to act.
However, State Street assumes no liability if the request for amendment or
cancellation cannot be satisfied.
6. ERRORS: State Street shall assume no responsibility for failure to detect
any erroneous payment order provided that State Street complies with the
payment order instructions as received and State Street complies with the
Security Procedure. The Security Procedure is established for the purpose of
authenticating payment orders only and not for the detection of errors in
payment orders.
7. INTEREST AND LIABILITY LIMITS: State Street shall assume no responsibility
for lost interest with respect to the refundable amount of any unauthorized
payment order, unless State Street is notified of the unauthorized payment
order within thirty (30) days of notification by State Street of the acceptance
of such payment order. In no event shall State Street be liable for special,
indirect or consequential damages, even if advised of the possibility of such
damages and even for failure to execute a payment order.
8. AUTOMATED CLEARING HOUSE ("ACH") CREDIT ENTRIES/PROVISIONAL PAYMENTS: When a
Client initiates or receives ACH credit and debit entries pursuant to these
Guidelines and the rules of the National Automated Clearing House Association
and the New England Clearing House Association, State Street will act as an
Originating Depository Financial Institution and/or Receiving Depository
Institution, as the case may be, with respect to such entries. Credits given by
State Street with respect to an ACH credit entry are provisional until State
Street receives final settlement for such entry from the Federal Reserve Bank.
If State Street does not receive such final settlement, the Client agrees that
State Street shall receive a refund of the amount credited to the Client in
connection with such entry, and the party making payment to the Client via such
entry shall not be deemed to have paid the amount of the entry.
9. CONFIRMATION STATEMENTS: Confirmation of State Street's execution of payment
orders shall ordinarily be provided within 24 hours. Notice may be delivered
through State Street's proprietary information systems, such as, but not
limited to Horizon and GlobalQuest(R), account statements, advices, or by
facsimile or callback. The Client must report any objections to the execution
of a payment order within 30 days.
10. LIABILITY ON FOREIGN ACCOUNTS: State Street shall not be required to repay
any deposit made at a non-U.S. branch of State Street, or any deposit made with
State Street and denominated in a non-U.S. dollar currency, if repayment of
such deposit or the use of assets denominated in the non-U.S. dollar currency
is prevented, prohibited or otherwise blocked due to: (a) an act of war,
insurrection or civil strife; (b) any action by a non-U.S. government or
instrumentality or authority asserting governmental, military or police power
of any kind, whether such authority be recognized as a defacto or a dejure
government, or by any entity, political or revolutionary movement or otherwise
that usurps, supervenes or otherwise materially impairs the normal operation of
civil authority; or(c) the closure of a non-U.S. branch of State Street in
order to prevent, in the reasonable judgment of State Street, harm to the
employees or property of State Street. The obligation to repay any such deposit
shall not be transferred to and may not be enforced against any other branch of
State Street.
The foregoing provisions constitute the disclosure required by Massachusetts
General Laws, Chapter 167D, Section 36.
While State Street is not obligated to repay any deposit made at a non-U.S.
branch or any deposit denominated in a non-U.S. currency during the period in
which its repayment has been prevented, prohibited or otherwise blocked, State
Street will repay such deposit when and if all circumstances preventing,
prohibiting or otherwise blocking repayment cease to exist.
11. MISCELLANEOUS: State Street and the Client agree to cooperate to attempt to
recover any funds erroneously paid to the wrong party or parties, regardless of
any fault of State Street or the Client, but the party responsible for the
erroneous payment shall bear all costs and expenses incurred in trying to
effect such recovery. These Guidelines may not be amended except by a written
agreement signed by the parties.
Security Procedure(s) Selection Form
Please select one or more of the funds transfer security procedures indicated
below.
| | SWIFT
SWIFT (Society for Worldwide Interbank Financial Telecommunication) is a
cooperative society owned and operated by member financial institutions that
provides telecommunication services for its membership. Participation is
limited to securities brokers and dealers, clearing and depository
institutions, recognized exchanges for securities, and investment management
institutions. SWIFT provides a number of security features through encryption
and authentication to protect against unauthorized access, loss or wrong
delivery of messages, transmission errors, loss of confidentiality and
fraudulent changes to messages. SWIFT is considered to be one of the most
secure and efficient networks for the delivery of funds transfer instructions.
Selection of this security procedure would be most appropriate for existing
SWIFT members.
| | STANDING INSTRUCTIONS
Standing Instructions may be used where funds are transferred to a broker on
the Client's established list of brokers with which it engages in foreign
exchange transactions. Only the date, the currency and the currency amount are
variable. In order to establish this procedure, State Street will send to the
Client a list of the brokers that State Street has determined are used by the
Client. The Client will confirm the list in writing, and State Street will
verify the written confirmation by telephone. Standing Instructions will be
subject to a mutually agreed upon limit. If the payment order exceeds the
established limit, the Standing Instruction will be confirmed by telephone
prior to execution.
| | REMOTE BATCH TRANSMISSION
Wire transfer instructions are delivered via Computer-to-Computer (CPU-CPU)
data communications between the Client and State Street. Security procedures
include encryption and or the use of a test key by those individuals authorized
as Automated Batch Verifiers.
Clients selecting this option should have an existing facility for completing
CPU-CPU transmissions. This delivery mechanism is typically used for
high-volume business.
| | GLOBAL HORIZON INTERCHANGESM FUNDS TRANSFER SERVICE
Global Horizon Interchange Funds Transfer Service (FTS) is a State Street
proprietary microcomputer-based wire initiation system. FTS enables Clients to
electronically transmit authenticated Fedwire, CHIPS or internal book transfer
instructions to State Street.
This delivery mechanism is most appropriate for Clients with a low-to-medium
number of transactions (5-75 per day), allowing Clients to enter, batch, and
review wire transfer instructions on their PC prior to release to State Street.
| | TELEPHONE CONFIRMATION (CALLBACK)
Telephone confirmation will be used to verify all non-repetitive funds transfer
instructions received via untested facsimile or phone. This procedure requires
Clients to designate individuals as authorized initiators and authorized
verifiers. State Street will verify that the instruction contains the signature
of an authorized person and prior to execution, will contact someone other than
the originator at the Client's location to authenticate the instruction.
Selection of this alternative is appropriate for Clients who do not have the
capability to use other security procedures.
| | REPETITIVE WIRES
For situations where funds are transferred periodically (minimum of one
instruction per calendar quarter) from an existing authorized account to the
same payee (destination bank and account number) and only the date and currency
amount are variable, a repetitive wire may be implemented. Repetitive wires
will be subject to a mutually agreed upon limit. If the payment order exceeds
the established limit, the instruction will be confirmed by telephone prior to
execution. Telephone confirmation is used to establish this process. Repetitive
wire instructions must be reconfirmed annually.
This alternative is recommended whenever funds are frequently transferred
between the same two accounts.
| | TRANSFERS INITIATED BY FACSIMILE
The Client faxes wire transfer instructions directly to State Street Mutual
Fund Services. Standard security procedure requires the use of a random number
test key for all transfers. Every six months the Client receives test key logs
from State Street. The test key contains alpha-numeric characters, which the
Client puts on each document faxed to State Street. This procedure ensures all
wire instructions received via fax are authorized by the Client.
We provide this option for Clients who wish to batch wire instructions and
transmit these as a group to State Street Mutual Fund Services once or several
times a day.
| | AUTOMATED CLEARING HOUSE (ACH)
State Street receives an automated transmission or a magnetic tape from a
Client for the initiation of payment (credit) or collection (debit)
transactions through the ACH network. The transactions contained on each
transmission or tape must be authenticated by the Client. Clients using ACH
must select one or more of the following delivery options:
| | GLOBAL HORIZON INTERCHANGE AUTOMATED CLEARING HOUSE SERVICE
Transactions are created on a microcomputer, assembled into batches and
delivered to State Street via fully authenticated electronic transmissions in
standard NACHA formats.
| | Transmission from Client PC to State Street Mainframe with Telephone
Callback
| | Transmission from Client Mainframe to State Street Mainframe with Telephone
Callback
| | Transmission from DST Systems to State Street Mainframe with Encryption
| | Magnetic Tape Delivered to State Street with Telephone Callback
State Street is hereby instructed to accept funds transfer instructions only
via the delivery methods and security procedures indicated. The selected
delivery methods and security procedure(s) will be effective _________________
for payment orders initiated by our organization.
KEY CONTACT INFORMATION
Whom shall we contact to implement your selection(s)?
CLIENT OPERATIONS CONTACT ALTERNATE CONTACT
---------------------------------- -------------------------------------
Name Name
---------------------------------- -------------------------------------
Address Address
---------------------------------- -------------------------------------
City/State/Zip Code City/State/Zip Code
---------------------------------- -------------------------------------
Telephone Number Telephone Number
---------------------------------- -------------------------------------
Facsimile Number Facsimile Number
----------------------------------
SWIFT Number
----------------------------------
Telex Number
INSTRUCTION(S)
TELEPHONE CONFIRMATION
FUND
--------------------------------------------------------------------------
INVESTMENT ADVISER
-----------------------------------------------------------
AUTHORIZED INITIATORS
Please Type or Print
Please provide a listing of Fund officers or other individuals who are
currently authorized to INITIATE wire transfer instructions to State Street:
NAME TITLE (Specify whether SPECIMEN SIGNATURE
position is with Fund
or Investment Adviser)
--------------------- -------------------------- -----------------------
--------------------- -------------------------- -----------------------
--------------------- -------------------------- -----------------------
--------------------- -------------------------- -----------------------
--------------------- -------------------------- -----------------------
AUTHORIZED VERIFIERS
Please Type or Print
Please provide a listing of Fund officers or other individuals who will be
CALLED BACK to verify the initiation of repetitive wires of $10 million or more
and all non-repetitive wire instructions:
NAME CALLBACK PHONE NUMBER DOLLAR LIMITATION (IF ANY)
--------------------- ------------------------ -------------------------
--------------------- ------------------------ -------------------------
--------------------- ------------------------ -------------------------
--------------------- ------------------------ -------------------------
REMOTE ACCESS SERVICES ADDENDUM TO THE
CUSTODIAN AGREEMENT
BETWEEN
EACH OF THE INVESTMENT COMPANIES
LISTED ON APPENDIX A THERETO
AND
STATE STREET BANK AND TRUST COMPANY
Remote Access Services
ADDENDUM to that certain Custodian Agreement dated as of December 18,
2006 (the "Custodian Agreement") between each of the Investment Companies
listed on Appendix A attached thereto (the "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 custodian services which State Street
provides to the Customer. In this regard, State Street maintains certain
information in databases under its control and ownership which it makes
available to its customers (the "Remote Access Services").
The Services
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 Custody Fee Schedule in
effect from time to time between the parties (the "Fee Schedule"). The Customer
shall be responsible for any tariffs, duties or taxes imposed or levied by any
government or governmental agency by reason of the transactions contemplated by
this Addendum, including, without limitation, federal, state and local taxes,
use, value added and personal property taxes (other than income, franchise or
similar taxes which may be imposed or assessed against State Street). Any
claimed exemption from such tariffs, duties or taxes shall be supported by
proper documentary evidence delivered to State Street.
Proprietary Information/Injunctive Relief
The System and Remote Access Services described herein and the databases,
computer programs, screen formats, report formats, interactive design
techniques, formulae, processes, systems, software, knowhow, algorithms,
programs, training aids, printed materials, methods, books, records, files,
documentation and other information made available to the Customer by State
Street as part of the Remote Access Services and through the use of the System
and all copyrights, patents, trade secrets and other proprietary rights of
State Street related thereto are the exclusive, valuable and confidential
property of State Street and its relevant licensors (the "Proprietary
Information"). The Customer agrees on behalf of itself and its Authorized
Designees to keep the Proprietary Information confidential and to limit access
to its employees and Authorized Designees (under a similar duty of
confidentiality) who require access to the System for the purposes intended.
The foregoing shall not apply to Proprietary Information in the public domain
or required by law to be made public.
The Customer agrees to use the Remote Access Services only in connection with
the proper purposes of this Addendum. The Customer will not, and will cause its
employees and Authorized Designees not to, (i) permit any third party to use
the System or the Remote Access Services, (ii) sell, rent, license or otherwise
use the System or the Remote Access Services in the operation of a service
bureau or for any purpose other than as expressly authorized under this
Addendum, (iii) use the System or the Remote Access Services for any fund,
trust or other investment vehicle without the prior written consent of State
Street, or (iv) allow or cause any information transmitted from State Street's
databases, 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 the Customer or Customer's 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. State Street and its relevant
licensors will not be liable to the Customer or its Authorized Designees for
any direct or indirect, special, incidental, punitive or consequential damages
arising out of or in any way connected with the System or the Remote Access
Services, nor shall either party be responsible for delays or nonperformance
under this Addendum arising out of any cause or event beyond such party's
control.
State Street will take reasonable steps to ensure that its products (and those
of its third-party suppliers) reflect the available state of the art technology
to offer products that are Year 2000 compliant, including, but not limited to,
century recognition of dates, calculations that correctly compute same century
and multi century formulas and date values, and interface values that reflect
the date issues arising between now and the next one-hundred years, and if any
changes are required, State Street will make the changes to its products at no
cost to you and in a commercially reasonable time frame and will require
third-party suppliers to do likewise. The Customer will do likewise for its
systems.
EXCEPT AS EXPRESSLY SET FORTH IN THIS ADDENDUM, STATE STREET, FOR ITSELF AND
ITS RELEVANT LICENSORS, EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES CONCERNING
THE SYSTEM AND THE SERVICES TO BE RENDERED HEREUNDER, WHETHER EXPRESS OR
IMPLIED INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTIBILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
Infringement
State Street will defend or, at our option, settle any claim or action brought
against the Customer to the extent that it is based upon an assertion that
access to the System or use of the Remote Access Services by the Customer under
this Addendum constitutes direct infringement of any patent or copyright or
misappropriation of a trade secret, provided that the Customer notifies State
Street promptly in writing of any such claim or proceeding and cooperates with
State Street in the defense of such claim or proceeding. Should 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.
Termination
Either party to the Custodian Agreement may terminate this Addendum (i) for any
reason by giving the other party at least one-hundred and eighty (180) days'
prior written notice in the case of notice of termination by State Street to
the Customer or thirty (30) days' notice in the case of notice from the
Customer to State Street of termination, or (ii) immediately for failure of the
other party to comply with any material term and condition of the Addendum by
giving the other party written notice of termination. This Addendum shall in
any event terminate within ninety (90) days after the termination of the
Custodian Agreement. In the event of termination, the Customer will return to
State Street all copies of documentation and other confidential information in
its possession or in the possession of its Authorized Designees. The foregoing
provisions with respect to confidentiality and infringement will survive
termination for a period of three (3) years.
Miscellaneous
This Addendum and the exhibits hereto constitute the entire understanding of
the parties to the Custodian Agreement with respect to access to the System and
the Remote Access Services. This Addendum cannot be modified or altered except
in a writing duly executed by each of State Street and the Customer and shall
be governed by and construed in accordance with the laws of the Commonwealth of
Massachusetts.
By its execution of the Custodian Agreement, the Customer accepts
responsibility for its and its Authorized Designees' compliance with the terms
of this Addendum.
EXHIBIT A
To
REMOTE ACCESS SERVICES ADDENDUM TO CUSTODIAN CONTRACT
IN~SIGHT(SM)
System Product Description
In~Sight(SM) provides bilateral information delivery, interoperability, and
on-line access to State Street. In~Sight(SM) allows users a single point of
entry into State Street's diverse systems and applications. Reports and data
from systems such as Investment Policy Monitor(SM), Multicurrency HorizonSM,
Securities Lending, Performance & Analytics, and Electronic Trade Delivery can
be accessed through In~Sight(SM). This Internet-enabled application is designed
to run from a Web browser and perform across low-speed data lines or corporate
high-speed backbones. In~Sight(SM) also offers users a flexible toolset,
including an ad-hoc query function, a custom graphics package, a report
designer, and a scheduling capability. Data and reports offered through
In~Sight(SM) will continue to increase in direct proportion with the customer
roll out, as it is viewed as the information delivery system will grow with
State Street's customers.
