Exhibit (j)
AMENDMENT TO CUSTODIAN AGREEMENT
THIS AMENDMENT to CUSTODIAN AGREEMENT (this "Amendment") is dated
May 31, 2016, by and between each of the Pioneer open-end management investment
companies (each, a "Fund") listed on Appendix A to the Agreement (defined
below) and Xxxxx Brothers Xxxxxxxx & Co. (the "Custodian" or "BBH&Co.").
Reference is made to the Custodian Agreement between each Fund and
BBH&Co. dated July 1, 2001, as amended from time to time and as in effect on
the date hereof prior to giving effect to this Amendment (the "Agreement").
Capitalized terms used herein and not otherwise defined shall have the meanings
ascribed to them in the Agreement.
WHEREAS, each Fund and Custodian have agreed to amend the terms of the
Agreement as set forth herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree to as follows:
A. Amendments to the Agreement
1. The Agreement is hereby amended in Section 2 by adding at the end
thereof the following new Section 2.3 and 2.3.1:
"2.3 By providing an Instruction (defined in Section 4) in respect of an
Investment (which Instruction may relate to among other things, the
processing of orders and/or settlement of transactions in funds), the
Fund hereby (i) authorizes BBH&Co. to complete such documentation as may
be required or appropriate to carry out the Instruction, and agrees to
be contractually bound to the terms of such documentation "as is"
without recourse against BBH&Co.; (ii) represents, warrants and
covenants that it has accepted and agreed to comply with all Applicable
Law, terms and conditions to which it and/or its Investment may be
bound, including without limitation, requirements imposed by the
Investment prospectus or offering circular, subscription agreement, any
application or other documentation relating to an Investment (e.g.,
compliance with suitability requirements and eligibility restrictions);
(iii) acknowledges and agrees that BBH&Co. will not be responsible for
the accuracy of any information provided to it by or on behalf of the
Fund, or for any underlying commitment or obligation inherent to an
Investment; (iv) except as otherwise provided for in Section 2.6.1,
represents, warrants and covenants that it will not effect any sale,
transfer or disposition of Investment(s) held in BBH&Co.'s name by any
means other than the issuance of an Instruction by the Fund to BBH&Co.;
(v) acknowledges that collective investment schemes (and/or their
agent(s)) in which the Fund invests may pay to BBH&Co. certain fees
(including without limitation, shareholder servicing and/or trailer
fees) in respect of the Fund's investments in such schemes; (vi) agrees
that BBH&Co. shall have no obligation or responsibility whatsoever to
respond to, or provide capital in connection with any capital calls,
letters of intent or other requirements as set out in the prospectus or
offering circular of an Investment; (vii) represents, warrants and
covenants that it will provide BBH&Co. with such information as is
necessary or appropriate to enable BBH&Co.'s performance pursuant to an
Instruction or under this Agreement; (vii) undertakes to inform BBH&Co.
and to keep the same updated as to any tax withholding or benefit to
which an Investment may be subject; (ix) acknowledges that BBH&Co. shall
have no obligation to fund any order placed by the Fund for which the
Fund does not have sufficient cash on deposit with BBH&Co.; and (x)
agrees that BBH&Co. shall be held harmless for the acts, omissions or
any unlawful activity
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of any agent of the Fund, or any transfer agent or other agent of an
Investment in which the Fund may invest.
2.3.1. To the extent that the Fund holds Investments in an account
opened in the name of BBH&Co. as custodian for and at the direction of
the Fund, and the Fund requests that BBH&Co. provide the Fund with the
capability to place orders and execute trades in fund shares directly
with such fund companies and/or their transfer agents which shall be
settled in an account established with each such fund company or its
transfer agent, the Fund hereby acknowledges that BBH&Co. is under no
obligation to agree to such arrangement but if BBH&Co. so agrees, the
Fund (i) acknowledges that all relevant terms under Section 2.6 above
apply thereto, (ii) authorizes BBH&Co. as custodian, to grant a limited
power of attorney to the Fund or its designated agent to enable the Fund
to so execute, (iii) agrees to ensure that any instructions issued by
the Fund or its designated agent shall also be concurrently submitted to
BBH&Co., and (iv) shall adhere to any BBH&Co. procedures established
with each such fund or its transfer agent with respect thereto
including, but not limited to, the terms of the limited power of
attorney. The Fund also acknowledges and agrees that (1) BBH&Co. is
acting solely in its capacity as custodian and is not acting as a broker
or introducing broker on behalf of the Fund, (2) BBH&Co. is not
receiving compensation in connection with the Fund's own execution
hereunder of trades with each such fund other than its usual and
customary custody fees and transaction charges, (3) it will provide such
account opening information to each such fund and/or transfer agent as
and when requested by such fund and/or transfer agent, and (4) BBH&Co.
is not responsible for (a) providing information published by the
relevant distributor of each such fund including, but not limited to,
the prospectus for each such Investment in a fund or for resolving
execution queries or complaints relative to any such Investment, and (b)
assessing the suitability of any such Investment executed directly by
the Fund.
B. Miscellaneous
1. Except as specifically amended hereby, the Agreement remains unchanged,
in full force and effect and binding on the parties in accordance with
its terms.
2. This Amendment shall be governed in accordance with the terms set forth
in Section 12.4 of the Agreement.
3. This Amendment may be executed in multiple original counterparts, each
of which shall be deemed an original, but all of which together shall
constitute one and the same Amendment.
IN WITNESS WHEREOF, each of the parties has caused their duly authorized
representatives to execute this Amendment to the Agreement, effective as of the
first date written above.
Each of the Funds listed on XXXXX BROTHERS XXXXXXXX & CO.
Appendix A to the Agreement, as amended
from time to time
By: /s/ Xxxxxxxxxxx X. Xxxxxx By: /s/ Xxxxxxxxx X. Xxxxxxxx
------------------------- -------------------------
Name: Xxxxxxxxxxx X. Xxxxxx Name: Xxxxxxxxx X. Xxxxxxxx
Title: Secretary Title: Managing Director
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CUSTODIAN AGREEMENT
THIS AGREEMENT, dated as of July 1, 2001 between each of the open-end
management investment companies listed on Appendix A hereto each a Fund (as
amended from time to time) severally and not jointly, (each a FUND), and XXXXX
BROTHERS XXXXXXXX & CO., a limited partnership formed under the laws of the
State of New York (BBH&CO. or the CUSTODIAN). Each Fund is organized under
either the laws of the State of Delaware or the Commonwealth of Massachusetts
and registered with the Commission under the 1940 Act, as amended.
W I T N E S S E T H:
WHEREAS, the Fund wishes to employ BBH&Co. to act as custodian for the
Fund and to provide related services, all as provided herein, and BBH&Co. is
willing to accept such employment, subject to the terms and conditions herein
set forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the Fund and BBH&Co. hereby agree, as follows:
1. APPOINTMENT OF CUSTODIAN. The Fund hereby appoints and employs BBH&Co. as the
Fund's custodian for the term and subject to the conditions of this Agreement,
including the related 17f-5 Delegation Schedule, and BBH&Co. hereby accepts such
appointment. All Investments of the Fund delivered to the Custodian or its
agents or Subcustodians shall be dealt with as provided in this Agreement. The
duties of the Custodian with respect to the Fund's Investments shall be only as
set forth expressly in this Agreement which duties are generally comprised of
safekeeping and various administrative duties that will be performed in
accordance with Instructions and as reasonably required to effect Instructions.
2. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE FUND. The Fund hereby
represents, warrants and covenants each of the following:
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2.1 This Agreement has been, and at the time of delivery of
each Instruction such Instruction will have been, duly authorized,
executed and delivered by the Fund. This Agreement does not conflict
with or constitute a default under the Fund's prospectus, Certificate
of Trust and By-Laws, or any other agreement, judgment, order or decree
to which the Fund is a party or by which it is bound.
2.2 The Fund shall safeguard and shall be responsible for the
safekeeping of any testkeys, identification codes, passwords, other
security devices or statements of account with which the Custodian
provides it. In furtherance and not in limitation of the foregoing, in
the event the Fund utilizes any on-line service offered by the
Custodian, the Fund shall be fully responsible for the security of its
connecting terminal, access thereto and the proper and authorized use
thereof and the initiation and application of continuing effective
safeguards in respect thereof. Additionally, unless otherwise agreed in
connection with the provision of such (service) (software) if the Fund
uses any on-line or similar communications service made available by
the Custodian, the Fund shall be responsible for ensuring the security
of its access to the service and for its use of the service, and shall
only attempt to access the service and the Custodian's computer systems
as directed by the Custodian. Unless otherwise agreed in connection
with the provision of such (service) (software). If the Custodian
provides any computer software to the Fund relating to the services
described in this Agreement, the Fund will only use the software for
the purposes for which the Custodian provided the software to the Fund,
and will abide by the license agreement accompanying the software and
any other security policies which the Custodian provides to the Fund.
3. REPRESENTATION AND WARRANTY OF BBH&CO. BBH&Co. hereby represents and
warrants that this Agreement has been duly authorized, executed and delivered by
BBH&Co. and does not and will not violate any Applicable Law or conflict with or
constitute a default under BBH&Co.'s limited partnership agreement or any
agreement, instrument, judgment, order or decree to which BBH&Co. is a party or
by which it is bound.
4. INSTRUCTIONS. Unless otherwise explicitly indicated herein, the Custodian
shall perform its duties pursuant to Instructions. As used herein, the term
INSTRUCTION shall mean a directive initiated by the Fund, acting directly or
through its board of trustees, officers or other Authorized Persons, which
directive shall conform to the requirements of this Section 4.
4.1 AUTHORIZED PERSONS. For purposes hereof, an AUTHORIZED PERSON shall
be a person or entity authorized to give Instructions for or on behalf of the
Fund by written notices to the Custodian or otherwise in accordance with
procedures delivered to and acknowledged by the Custodian. Such Authorized
Persons may be identified by the Board of Trustees of the Fund by name, title or
positions, may include officers of the Fund authorized by the Board of Trustees
to name additional Authorized Persons and may include officers or employees of
the Fund's investment adviser or its affiliates. The Custodian may treat any
Authorized Person as having full authority of the Fund to issue Instructions
hereunder unless the notice of authorization contains explicit limitations as to
said authority. The Custodian may not
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treat any Instruction from an Authorized Person directing the delivery of
securities or payment to such Authorized Person to be valid for purposes of this
Agreement. The Custodian shall be entitled to rely upon the authority of
Authorized Persons until it receives appropriate written notice from the Fund to
the contrary.
4.2 FORM OF INSTRUCTION. Each Instruction shall be transmitted by such
secured or authenticated electro-mechanical means as the Custodian shall make
available to the Fund from time to time unless the Fund shall elect to transmit
such Instruction in accordance with Subsections 4.2.1 through 4.2.3 of this
Section.
4.2.1 FUND DESIGNATED SECURED-TRANSMISSION METHOD.
Instructions may be transmitted through a secured or tested
electro-mechanical means identified by the Fund or by an Authorized
Person entitled to give Instruction and acknowledged and accepted by
the Custodian; it being understood that such acknowledgment shall
authorize the Custodian to receive and process such means of delivery
but shall not represent a judgment by the Custodian as to the
reasonableness or security of the method determined by the Authorized
Person.
4.2.2 WRITTEN INSTRUCTIONS. Instructions may be transmitted in
a writing that bears the manual signature or initials of Authorized
Persons.
4.2.3 OTHER FORMS OF INSTRUCTION. Instructions may also be
transmitted by another means determined by the Fund or Authorized
Persons and acknowledged and accepted by the Custodian (subject to the
same limits as to acknowledgements as is contained in Subsection 4.2.1,
above) including Instructions given orally or by SWIFT, telex or
telefax (whether tested or untested).
When an Instruction is given by means established under Subsections
4.2.1 through 4.2.3, it shall be the responsibility of the Custodian to use
reasonable care to adhere to any security or other procedures established in
writing between the Custodian and the Authorized Person (and such other
procedures as are customarily adhered to by custodians to protect client assets)
with respect to such means of Instruction, but such Authorized Person shall be
solely responsible for determining that the particular means chosen is
reasonable under the circumstances. Telephonic or oral instructions shall be
considered proper Instructions if the Custodian reasonably believes them to have
been given by an Authorized Person. Telephonic or oral instructions shall be
confirmed by methods established in accordance with Section 4.2.1. With respect
to telefax instructions, the parties agree and acknowledge that receipt of
legible instructions cannot be assured, that the Custodian cannot verify that
authorized signatures on telefax instructions are original or properly affixed,
and that the Custodian shall not be liable for losses or expenses incurred
through actions taken in reliance on inaccurately stated, illegible or
unauthorized telefax instructions; provided that if the Custodian receives
Instructions that it determines to be illegible, the Custodian shall promptly
seek confirmation of such Instructions from the Authorized Person sending such
Instruction. The provisions of Section 4A of the Uniform Commercial Code shall
apply to Funds Transfers performed in accordance with Instructions. The Funds
Transfer Services Schedule to this Agreement shall comprise a designation of
form of a means of delivering Instructions selected by the Custodian for
purposes of this Section 4.2.
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4.3 COMPLETENESS AND CONTENTS OF INSTRUCTIONS. The Authorized Person
shall be responsible for assuring the adequacy and accuracy of Instructions.
Particularly, upon any acquisition or disposition or other dealing in the Fund's
Investments and upon any delivery and transfer of any Investment or monies, the
person initiating such Instruction shall give the Custodian an Instruction with
appropriate detail, including, without limitation:
4.3.1 The transaction date and the date and location of
settlement;
4.3.2 The specification of the type of transaction;
4.3.3 A description of the Investments or monies in question,
including, as appropriate, quantity, price per unit, amount of money to
be received or delivered and currency information; and
4.3.4 The name of the broker or similar entity concerned with
execution of the transaction.
If the Custodian shall determine that an Instruction is either unclear
or incomplete, the Custodian shall give prompt notice of such determination to
the Fund, and the Fund shall thereupon amend or otherwise reform such
Instruction.
4.4 TIMELINESS OF INSTRUCTIONS. In giving an Instruction, the Fund
shall take into consideration delays which may occur due to the involvement of a
Subcustodian or agent, differences in time zones, and other factors particular
to a given market, exchange or issuer. When the Custodian has established
specific timing requirements or deadlines with respect to particular classes of
Instructions and adequate notice thereof has been provided to the Fund, or when
an Instruction is received by the Custodian at such a time that it could not
reasonably be expected to have acted on such Instruction due to time zone
differences or other factors beyond its reasonable control, the Custodian shall
not be responsible for any increased risk or failure to timely complete any
settlement to the extent that such risk arises out of such delay.
5. SAFEKEEPING OF FUND ASSETS. The Custodian shall hold Investments delivered to
it or Subcustodians for the Fund in accordance with the provisions of this
Section. The Custodian shall not be responsible for the safekeeping of
Investments not delivered or that are not caused to be issued to it or its
Subcustodians or pre-existing faults or defects in Investments that are
delivered to the Custodian, or its Subcustodians. The Custodian is hereby
authorized to hold with itself or a Subcustodian, and to record in one or more
accounts, all Investments delivered to and accepted by the Custodian, any
Subcustodian or their respective agents pursuant to an Instruction or in
consequence of any corporate
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action. The Custodian shall hold Investments for the account of the Fund
and shall segregate Investments from assets belonging to the Custodian and shall
cause its Subcustodians to segregate Investments from assets belonging to the
Subcustodian in an account held for the Fund or in an account maintained by the
Subcustodian generally for non-proprietary assets of the Custodian.
5.1 USE OF SECURITIES DEPOSITORIES. The Custodian may deposit and
maintain Investments in any Securities Depository, either directly or through
one or more Subcustodians appointed by the Custodian. Investments held in a
Securities Depository shall be held (a) subject to the agreement, rules,
statement of terms and conditions or other document or conditions effective
between the Securities Depository and the Custodian or the Subcustodian, as the
case may be, and (b) in an account for the Fund or in bulk segregation in an
account maintained for the non-proprietary assets of the entity holding such
Investments in the Securities Depository. If the rules and regulations of the
Securities Depository prevent the Custodian, the Subcustodian or (any agent of
either) from holding its clients' assets in such a separate account, the
Custodian, the Subcustodian or other agent shall as appropriate segregate such
Investments for benefit of the Fund or for benefit of clients of the Custodian
generally on its own books.
5.2 CERTIFICATED ASSETS. Investments which are certificated may be held
in registered or bearer form: (a) in the Custodian's vault; (b) in the vault of
a Subcustodian or agent of the Custodian or a Subcustodian; or (c) in an account
maintained by the Custodian, Subcustodian or agent at a Securities Depository;
all in accordance with customary market practice in the jurisdiction in which
any Investments are held provided that Securities are held in the name of the
Fund or in an account of the Custodian containing only the assets of the Fund or
only assets held as fiduciary or custodian for customers..
5.3 REGISTERED ASSETS. Investments which are registered may be
registered in the name of the Custodian, a Subcustodian, or in the name of the
Fund or a nominee for any of the foregoing, and may be held in any manner set
forth in paragraph 5.2 above with or without any identification of fiduciary
capacity in such registration.
5.4 BOOK ENTRY ASSETS. Investments which are represented by book-entry
may be so held in an account maintained by the Book-entry Agent on behalf of the
Custodian, a Subcustodian or another agent of the Custodian, or a Securities
Depository.
5.5 REPLACEMENT OF LOST INVESTMENTS. In the event of a loss of
Investments for which the Custodian is responsible under the terms of this
Agreement, the Custodian shall replace such Investment, or in the event that
such replacement cannot be effected, the Custodian shall pay to the Fund the
fair market value of such Investment based on
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the last available price as of the close of business in the relevant market
on the date that a claim was first made to the Custodian with respect to such
loss, or, if less, such other amount as shall be agreed by the parties as the
date for settlement.
6. ADMINISTRATIVE DUTIES OF THE CUSTODIAN. The Custodian shall perform the
following administrative duties with respect to Investments of the Fund.
6.1 PURCHASE OF INVESTMENTS. Pursuant to Instruction, Investments
purchased for the account of the Fund shall be paid for (a) against delivery
thereof to the Custodian or a Subcustodian, as the case may be, either directly
or through a Clearing Corporation or a Securities Depository (in accordance with
the rules of such Securities Depository or such Clearing Corporation), or (b)
otherwise in accordance with an Instruction or Applicable Law. However, (i) in
the case of repurchase agreements entered into by the Fund, the Custodian may
release funds to a securities system or to a Subcustodian prior to the receipt
of advice from the securities system or Subcustodian that the securities
underlying such repurchase agreement have been transferred by book entry into
the Account of the Custodian maintained with such securities system or
Subcustodian, so long as such payment instructions to the securities system or
Subcustodian include a requirement that delivery is only against payment for
securities, (ii) in the case of foreign exchange contracts, options, time
deposits, call account deposits, currency deposits, and other deposits,
contracts or options, the Custodian may make payment therefor without receiving
an instrument evidencing said deposit, contract or option so long as such
payment instructions detail specific securities to be acquired, and (iii) in the
case of securities for which payment for the security and receipt of the
instrument evidencing the security are under generally accepted trade practice
or the terms of the instrument representing the security expected to take place
in different locations or through separate parties, the Custodian may make
payment for such securities prior to delivery thereof in accordance with such
generally accepted trade practice or the terms of the instrument representing
such security.
6.2 SALE OF INVESTMENTS. Pursuant to Instruction, Investments sold for
the account of the Fund shall be delivered (a) against payment therefor in cash,
by certified check, bank cashiers check, bank credit or by bank wire transfer,
(b) by credit to the account of the Custodian or the applicable Subcustodian, as
the case may be, with a Clearing Corporation or a Securities Depository (in
accordance with the rules of such Securities Depository or such Clearing
Corporation), or (c) otherwise in accordance with an Instruction, Applicable Law
or the terms of the instrument representing such Investment; provided, however,
that (i) in the case of delivery of physical certificates or
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instruments representing securities, the Custodian may make delivery to the
broker buying the securities, against receipt therefor, for examination in
accordance with "street delivery" custom, provided that the payment therefor is
to be made to the Custodian (which payment may be made by a broker's check) or
that such securities are to be returned to the Custodian, and (ii) in the case
of securities referred to in the last sentence of Section 6.1, the Custodian may
make settlement, including with respect to the form of payment, in accordance
with generally accepted trade practice relating to such securities or the terms
of the instrument representing said security.
6.3 DELIVERY AND RECEIPT IN CONNECTION WITH BORROWINGS OF THE FUND OR
OTHER COLLATERAL AND MARGIN REQUIREMENTS. Pursuant to Instruction, the Custodian
may deliver or receive Investments or cash of the Fund in connection with
borrowings or loans by the Fund and other collateral and margin requirements.
6.4 FUTURES AND OPTIONS. If, pursuant to an Instruction, the Custodian
shall become a party to an agreement with the Fund and a futures commission
merchant regarding margin accounts (TRI-PARTY AGREEMENT), the Custodian shall
(a) receive and retain, to the extent the same are provided to the Custodian,
confirmations or other documents evidencing the purchase or sale by the Fund of
exchange-traded futures contracts and commodity options, (b) when required by
such Tri-Party Agreement, deposit and maintain in an account opened pursuant to
such Agreement (MARGIN ACCOUNT), segregated either physically or by book-entry
in a Securities Depository for the benefit of any futures commission merchant,
such Investments as the Fund shall have designated as initial, maintenance or
variation "margin" deposits or other collateral intended to secure the Fund's
performance of its obligations under the terms of any exchange-traded futures
contracts and commodity options; and (c) thereafter pay, release or transfer
Investments into or out of the margin account in accordance with the provisions
of such Agreement. Alternatively, the Custodian may deliver Investments, in
accordance with an Instruction, to a futures commission merchant for purposes of
margin requirements in accordance with Rule 17f-6. The Custodian shall in no
event be responsible for the acts and omissions of any futures commission
merchant to whom Investments are delivered pursuant to this Section; for the
sufficiency of Investments held in any Margin Account; or, for the performance
of any terms of any exchange-traded futures contracts and commodity options.
6.5 CONTRACTUAL OBLIGATIONS AND SIMILAR INVESTMENTS. From time to time,
the Fund's Investments may include Investments that are not ownership interests
as may be represented by certificate (whether registered or bearer), by entry in
a Securities Depository or by book entry agent, registrar or similar agent for
recording ownership interests in the relevant Investment. If the Fund shall at
any time acquire such Investments, including without limitation deposit
obligations, loan participations, repurchase agreements and derivative
arrangements, the Custodian shall (a) receive and
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retain, to the extent the same are provided to the Custodian, confirmations
or other documents evidencing the arrangement; and (b) perform on the Fund's
account in accordance with the terms of the applicable arrangement, but only to
the extent directed to do so by Instruction. The Custodian shall have no
responsibility for agreements running to the Fund as to which it is not a party
other than to retain, to the extent the same are provided to the Custodian,
documents or copies of documents evidencing the arrangement and, in accordance
with Instruction, to include such arrangements in reports made to the Fund.
6.6 EXCHANGE OF SECURITIES. Unless otherwise directed by Instruction,
the Custodian shall: after prior notice of such action to the Fund: (a) exchange
securities held for the account of the Fund for other securities in connection
with any reorganization, recapitalization, conversion, split-up, change of par
value of shares or similar event: and (b) deposit any such securities in
accordance with the terms of any reorganization or protective plan.
6.7 SURRENDER OF SECURITIES. Unless otherwise directed by Instruction,
the Custodian may surrender securities after prior notice of such action to the
Fund: (a) in temporary form for definitive securities; (b) for transfer into the
name of an entity allowable under Section 5.3; and (c) for a different number of
certificates or instruments representing the same number of shares or the same
principal amount of indebtedness.
6.8 RIGHTS, WARRANTS, ETC. Pursuant to Instruction, the Custodian shall
(a) deliver warrants, puts, calls, rights or similar securities to the issuer or
trustee thereof, or to any agent of such issuer or trustee, for purposes of
exercising such rights or selling such securities, and (b) deposit securities in
response to any invitation for the tender thereof.
6.9 MANDATORY CORPORATE ACTIONS. Unless otherwise directed by
Instruction, the Custodian shall after prior notice of such action to the
Fund: (a) comply with the terms of all mandatory or compulsory exchanges,
calls, tenders, redemptions or similar rights of securities ownership
affecting securities held on the Fund's account and promptly notify the Fund
of such action; and (b) collect all stock dividends, rights and other items of
like nature with respect to such securities.
6.10 INCOME COLLECTION. Unless otherwise directed by Instruction, the
Custodian shall collect any amount due and payable to the Fund with respect to
Investments and promptly credit the amount collected to a Principal or Agency
Account; provided, however, that the Custodian shall not be responsible for:
(a) the collection of amounts due and payable with respect to Investments that
are in default; or (b) the collection of cash or share entitlements with
respect to Investments that are not registered in the name of the Custodian or
its Subcustodians. The Custodian is hereby authorized to endorse and deliver
any instrument required to be so endorsed and delivered to effect collection
of any amount due and payable to the Fund with respect to Investments.
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6.11 OWNERSHIP CERTIFICATES AND DISCLOSURE OF THE FUND'S INTEREST. The
Custodian is hereby authorized to execute on behalf of the Fund ownership
certificates, affidavits or other disclosure required under Applicable Law or
established market practice in connection with the receipt of income, capital
gains or other payments by the Fund with respect to Investments, or in
connection with the sale, purchase or ownership of Investments.
With respect to securities issued in the United States of America, the
Custodian [ ] may [ ] may not release the identity of the Fund to an
issuer which requests such information pursuant to the Shareholder
Communications Act of 1985 for the specific purpose of direct
communications between such issuer and the Fund. IF NO BOX IS CHECKED,
THE CUSTODIAN SHALL RELEASE SUCH INFORMATION UNTIL IT RECEIVES CONTRARY
INSTRUCTIONS FROM THE FUND. With respect to securities issued outside
of the United States of America, information shall be released in
accordance with law or custom of the particular country in which such
security is located.
6.12 PROXY MATERIALS. The Custodian shall deliver, or cause to be
delivered, to the Fund proxy forms, notices of meeting, and any other notices or
announcements affecting or relating to Investments received by the Custodian or
any nominee. Unless authorized to do so by Instructions or proxy, neither the
Custodian nor any Subcustodian shall vote any securities held for the Fund
pursuant to this Agreement.
6.13. TAXES. The Custodian shall, where applicable, assist the Fund in
the reclamation of taxes withheld on dividends and interest payments received by
the Fund. In the performance of its duties with respect to tax withholding and
reclamation, the Custodian shall be entitled to rely on the advice of counsel
and upon information and advice regarding the Fund's tax status that is received
from or on behalf of the Fund without duty of separate inquiry.
6.14. USE OF SEGREGATED ACCOUNTS. Upon receipt of Instructions, the
Custodian shall establish and maintain on its books a segregated account or
accounts on behalf of the Fund into which account or accounts may be transferred
cash and/or securities of the Fund (i) in accordance with the provisions of any
agreement among the Fund, the Custodian and a broker-dealer registered under the
Securities Exchange Act of 1934 and a member of the National Association of
Securities Dealers, Inc. (or any futures commission merchant registered under
the Commodity Exchange Act) relating to compliance with the rules of the Options
Clearing Corporation and of any registered national securities exchange (or the
Commodity Futures Trading Commission or any registered contract market), or any
similar organization or organizations, regarding escrow or other arrangements in
connection with transactions by the Fund, (ii) for purposes of segregating cash
or securities in connection with options purchased, sold or written by the Fund
or commodity futures contracts or options thereon purchased or sold by the Fund,
(iii) for the purposes of compliance by the Fund with the procedures required by
Investment Company Act and (iv) as mutually agreed from time to time between the
Fund and the Custodian.
6.15 OTHER DEALINGS. The Custodian shall otherwise act as directed by
Instruction, including without
9
limitation effecting the free payments of moneys or the free delivery of
securities, provided that such Instruction shall indicate the purpose of such
payment or delivery and that the Custodian shall record the party to whom such
payment or delivery is made.
The Custodian shall attend to all nondiscretionary details in
connection with the sale, exchange, substitution, transfer or purchase or other
administration of Investments, except as otherwise directed by an Instruction.
In fulfilling the duties set forth in Sections 6.6 through 6.10 above,
the Custodian shall promptly provide to the Fund all information pertaining to a
corporate action which the Custodian actually receives; provided that the
Custodian shall not be responsible for the completeness or accuracy of any
information it receives. Any advance credit of cash or shares expected to be
received as a result of any corporate action shall be subject to actual
collection and may, when the Custodian deems collection unlikely, be reversed by
the Custodian.
The Custodian may at any time or times in its discretion appoint (and
may at any time remove) agents (other than Subcustodians) to carry out some or
all of the administrative provisions of this Agreement (AGENTS), provided,
however, that the appointment of such agent shall not relieve the Custodian of
its administrative obligations under this Agreement.
7. CASH ACCOUNTS, DEPOSITS AND MONEY MOVEMENTS. Subject to the terms and
conditions set forth in this Section 7, the Fund hereby authorizes the Custodian
to open and maintain, with itself or with Subcustodians, cash accounts in United
States Dollars, in such other currencies as are the currencies of the countries
in which the Fund maintains Investments or in such other currencies as the Fund
shall from time to time request by Instruction.
7.1 TYPES OF CASH ACCOUNTS. Cash accounts opened on the books of the
Custodian (PRINCIPAL ACCOUNTS) shall be opened in the name of the Fund. Such
accounts collectively shall be a deposit obligation of the Custodian and shall
be subject to the terms of this Section 7 and the general liability provisions
contained in Section 9. Cash accounts opened on the books of a Subcustodian may
be opened in the name of the Fund or the Custodian or in the name of the
Custodian for its customers generally (AGENCY ACCOUNTS). Such deposits shall be
obligations of the Subcustodian and shall be treated as an Investment of the
Fund. Accordingly, the responsibility of the Custodian with respect to cash
accounts shall be the same as and no greater than other Investments.
Accordingly, the Custodian shall not be liable for
10
their repayment in the event such Subcustodian, by reason of its
bankruptcy, insolvency or otherwise, fails to make repayment.
7.2 PAYMENTS AND CREDITS WITH RESPECT TO THE CASH ACCOUNTS. The
Custodian shall make payments from or deposits to any of said accounts in the
course of carrying out its administrative duties, including but not limited to
income collection with respect to the Fund's Investments, and otherwise in
accordance with Instructions. The Custodian and its Subcustodians shall be
required to credit amounts to the cash accounts only when moneys are actually
received in cleared funds in accordance with banking practice in the country and
currency of deposit. Any credit made to any Principal or Agency Account before
actual receipt of cleared funds shall be provisional and may be reversed by the
Custodian in the event such payment is not actually collected. Unless otherwise
specifically agreed in writing by the Custodian or any Subcustodian, all
deposits shall be payable only at the branch of the Custodian or Subcustodian
where the deposit is made or carried.
7.3 CURRENCY AND RELATED RISKS. The Fund bears risks of holding or
transacting in any currency. The Custodian shall not be liable for any loss or
damage arising from the applicability of any law or regulation now or hereafter
in effect, or from the occurrence of any event, which may delay or affect the
transferability, convertibility or availability of any currency in the country
(a) in which such Principal or Agency Accounts are maintained or (b) in which
such currency is issued, and in no event shall the Custodian be obligated to
make payment of a deposit denominated in a currency during the period during
which its transferability, convertibility or availability has been affected by
any such law, regulation or event. Without limiting the generality of the
foregoing, neither the Custodian nor any Subcustodian shall be required to repay
any deposit made at a foreign branch of either the Custodian or Subcustodian if
such branch cannot repay the deposit due to a cause for which the Custodian
would not be responsible in accordance with the terms of Section 9 of this
Agreement unless the Custodian or such Subcustodian expressly agrees in writing
to repay the deposit under such circumstances. All currency transactions in any
account opened pursuant to this Agreement are subject to exchange control
regulations of the United States and of the country where such currency is the
lawful currency or where the account is maintained. Any taxes, costs, charges or
fees imposed on the convertibility of a currency held by the Fund shall be for
the account of the Fund.
7.4 FOREIGN EXCHANGE TRANSACTIONS. The Custodian shall, subject to the
terms of this Section, settle foreign exchange transactions (including
contracts, futures, options and options on futures) on behalf and for the
account of the Fund with such currency brokers or banking institutions,
including Subcustodians, as the Fund may direct pursuant to Instructions. The
Custodian may act as principal in any foreign exchange transaction with the Fund
in accordance with
11
Section 7.4.2 of this Agreement. The obligations of the
Custodian in respect of all foreign exchange transactions (whether or not the
Custodian shall act as principal in such transaction) shall be contingent on the
free, unencumbered transferability of the currency transacted on the actual
settlement date of the transaction.
7.4.1 THIRD PARTY FOREIGN EXCHANGE TRANSACTIONS. The
Custodian shall process foreign exchange transactions
(including without limitation contracts, futures, options, and
options on futures), where any third party acts as principal
counterparty to the Fund on the same basis it performs duties
as agent for the Fund with respect to any other of the Fund's
Investments. Accordingly the Custodian shall only be
responsible for delivering or receiving currency on behalf of
the Fund in respect of such contracts pursuant to
Instructions. The Custodian shall not be responsible for the
failure of any counterparty (including any Subcustodian) in
such agency transaction to perform its obligations thereunder.
The Custodian (a) shall transmit cash and Instructions to and
from the currency broker or banking institution with which a
foreign exchange contract or option has been executed pursuant
hereto, (b) may make free outgoing payments of cash in the
form of U.S. Dollars or foreign currency without receiving
confirmation of a foreign exchange contract or option or
confirmation that the countervalue currency completing the
foreign exchange contract has been delivered or received or
that the option has been delivered or received, and (c) shall
hold all confirmations, certificates and other documents and
agreements received by the Custodian and evidencing or
relating to such foreign exchange transactions in safekeeping.
Subject to the Custodian's Standard of Care under this
Agreement, the Fund accepts full responsibility for its use of
third-party foreign exchange dealers and for execution of said
foreign exchange contracts and options and understands that
the Fund shall be responsible for any and all costs and
interest charges which may be incurred by the Fund or the
Custodian as a result of the failure or delay of third parties
to deliver foreign exchange.
7.4.2 FOREIGN EXCHANGE WITH THE CUSTODIAN AS
PRINCIPAL. The Custodian may undertake foreign exchange
transactions with the Fund as principal as the Custodian and
the Fund may agree from time to time. In such event, the
foreign exchange transaction will be performed in accordance
with the particular agreement of the parties, or in the event
a principal foreign exchange transaction is initiated by
Instruction in the absence of specific agreement, such
transaction will be performed in accordance with the usual
commercial terms of the Custodian.
7.5 DELAYS. If no event of Force Majeure shall have occurred and be
continuing and in the event that a delay shall have been caused by the
negligence or willful misconduct of the Custodian in carrying out an Instruction
to credit or transfer cash, the Custodian, without limiting the Custodian's
obligations under Section 9. shall be liable to the Fund: (a) with respect to
Principal Accounts, for interest to be calculated at the rate customarily paid
on such deposit and currency by the Custodian on overnight deposits at the time
the delay occurs for the period from the day when the transfer should have been
effected until the day it is in fact effected; and, (b) with respect to Agency
Accounts, for interest to be calculated at the rate customarily paid on such
deposit and currency by the Subcustodian on overnight deposits at the time the
delay occurs for the period from the day when the transfer should have been
effected until the day it is in fact effected. The Custodian shall not be liable
for delays in carrying out such Instructions to transfer cash which are not due
to the Custodian's own negligence or willful misconduct.
12
7.6 ADVANCES. If, for any reason in the conduct of its safekeeping
duties pursuant to Section 5 hereof or its administration of the Fund's assets
pursuant to Section 6 hereof, the Custodian or any Subcustodian advances monies
to facilitate settlement or otherwise for the benefit of the Fund (whether or
not any Principal or Agency Account shall be overdrawn either during, or at the
end of, any Business Day), (collectively, an "Advance"), then in such event any
Investment at any time held for the account of the Fund by the Custodian or a
Subcustodian shall be security for such Advance and if the Fund shall fail to
repay the Custodian promptly, the Custodian shall be entitled to utilize
available cash and to dispose of the Fund's Investments to the extent necessary
to obtain reimbursement.
Neither the Custodian nor any Subcustodian shall be obligated to
advance monies to the Fund, and in the event that such Advance occurs, any
transaction giving rise to an Advance shall be for the account and risk of the
Fund and shall not be deemed to be a transaction undertaken by the Custodian for
its own account and risk. If such Advance shall have been made by a Subcustodian
or any other person, the Custodian may assign any rights granted or arising to
the Custodian hereunder to such Subcustodian or other person. The Custodian may
assign any rights it has hereunder to a Subcustodian or third party.
7.7 INTEGRATED ACCOUNT. For purposes hereof, deposits maintained in all
Principal Accounts (whether or not denominated in Dollars) of each series of the
Fund shall collectively constitute a single and indivisible current account with
respect to the series' obligations to the Custodian, or its assignee, and
balances in such Principal Accounts shall be available for satisfaction of the
series' obligations under this Section 7.
8. SUBCUSTODIANS AND SECURITIES DEPOSITORIES. Subject to the provisions
hereinafter set forth in this Section 8, the Fund hereby authorizes the
Custodian to utilize Securities Depositories to act on behalf of the Fund and to
appoint from time to time and to utilize Subcustodians. With respect to
securities and funds held by a Subcustodian, either directly or indirectly
(including by a Securities Depository or Clearing Corporation), notwithstanding
any provisions of this Agreement to the contrary, payment for securities
purchased and delivery of securities sold may be made prior to receipt of
securities or payment, respectively, and securities or payment may be received
in a form, in accordance with
13
(a) governmental regulations, (b) rules of Securities Depositories and
clearing agencies, (c) generally accepted trade practice in the applicable local
market, (d) the terms and characteristics of the particular Investment, or (e)
the terms of Instructions.
8.1 DOMESTIC SUBCUSTODIANS AND SECURITIES DEPOSITORIES. The Custodian
may deposit and/or maintain, either directly or through one or more agents
appointed by the Custodian, Investments of the Fund in any Securities Depository
in the United States, including The Depository Trust Company, provided such
Depository meets applicable requirements of the Federal Reserve Bank or of the
Securities and Exchange Commission. 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 the Fund as a Subcustodian
for purposes of holding Investments of the Fund in the United States.
8.2 FOREIGN SUBCUSTODIANS AND SECURITIES DEPOSITORIES. Unless
instructed otherwise by the Fund, the Custodian may deposit and/or maintain
non-U.S. Investments of the Fund in any non-U.S. Securities Depository provided
such Securities Depository meets the requirements of an "eligible securities
depository" under Rule 17f-7 promulgated under the 1940 Act, or any successor
rule or regulation ("Rule 17f-7") or which by order of the Securities and
Exchange Commission is exempted therefrom. Prior to the time that securities are
placed with such depository, but subject to the provisions of Section 8.2.4
below, the Custodian shall have prepared an assessment of the custody risks
associated with maintaining assets with the Securities Depository and shall have
established a system to monitor such risks on a continuing basis in accordance
with Subsection 8.2.3 of this Section and Rule 17f-7. Additionally, the
Custodian may, at any time and from time to time, appoint (a) any bank, trust
company or other entity meeting the requirements of an "eligible foreign
custodian" under Rule 17f-5 or which by order of the Securities and Exchange
Commission is exempted therefrom, or (b) 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 the
Fund as a Subcustodian for purposes of holding Investments of the Fund outside
the United States. Such appointment of foreign Subcustodians shall be subject to
approval of the Fund or the Foreign Custody Manager in accordance with
Subsections 8.2.1 and 8.2.2 hereof, and use of non-U.S. Securities Depositories
shall be subject to the terms of Subsections 8.2.3 and 8.2.4 hereof. An
Instruction to open an account in a given country shall comprise authorization
of the Custodian to hold assets in such country in accordance with the terms of
this Agreement. The Custodian shall not be required to make independent inquiry
as to the authorization of the Fund to invest in such country.
14
8.2.1 BOARD APPROVAL OF FOREIGN SUBCUSTODIANS. Unless
and except to the extent that the Board has delegated to and
the Custodian has accepted delegation of review of certain
matters concerning the appointment of Subcustodians pursuant
to Subsection 8.2.2, the Custodian shall, prior to the
appointment of any Subcustodian for purposes of holding
Investments of the Fund outside the United States, obtain
written confirmation of the approval of the Board of Trustees
of the Fund with respect to (a) the identity of a
Subcustodian, and (b) the Subcustodian agreement which shall
govern such appointment, such approval to be signed by an
Authorized Person.
8.2.2 DELEGATION OF BOARD REVIEW OF SUBCUSTODIANS.
From time to time, the Custodian may agree to perform certain
reviews of Subcustodians and of Subcustodian Contracts as
delegate of the Fund's Board. In such event, the Custodian's
duties and obligations with respect to this delegated review
will be performed in accordance with the terms of the attached
17f-5 Delegation Schedule to this Agreement.
8.2.3 MONITORING AND RISK ASSESSMENT OF SECURITIES
DEPOSITORIES. Prior to the placement of any assets of the Fund
with a non-U.S. Securities Depository, the Custodian: (a)
shall provide to the Fund or its authorized representative an
assessment of the custody risks associated with maintaining
assets within such Securities Depository; and (b) shall have
established a system to monitor the custody risks associated
with maintaining assets with such Securities Depository on a
continuing basis and to promptly notify the Fund or its
Investment Adviser of any material changes in such risk. In
performing its duties under this subsection, the Custodian
shall use reasonable care and may rely on such reasonable
sources of information. It is acknowledged that information
procured through some sources may not be independently
verifiable by the Custodian and that direct access to
Securities Depositories is limited under most circumstances.
Accordingly, the Custodian shall not be responsible for errors
or omissions in its duties hereunder provided that it has
performed its monitoring and assessment duties with reasonable
care, prudence and diligence. The risk assessment shall be
provided to the Fund or its Investment Adviser by such means
as the Custodian shall reasonably establish. Advices of
material change in such assessment may be provided by the
Custodian in the manner established as customary between the
Fund and the Custodian for transmission of material market
information.
8.3 RESPONSIBILITY FOR SUBCUSTODIANS. The Custodian shall be
liable to the Fund for any loss or damage to the Fund caused by or resulting
from the acts or omissions of any Subcustodian to the extent that under the
terms set forth in the subcustodian agreement between the Custodian and the
Subcustodian, the Subcustodian has failed to perform in accordance with the
standard of conduct imposed under such subcustodian agreement as determined in
accordance with the law which is adjudicated to govern such agreement and in
accordance with any determination of any court as to the duties of said
Subcustodian pursuant to said agreement. The Custodian shall also be liable to
the Fund for its own negligence in connection with the delivery of any
securities or funds held by it to any Subcustodian.
8.4 NEW COUNTRIES. The Fund shall be responsible for informing the
Custodian sufficiently in advance of a
15
proposed investment which is to be held in a country in which no
Subcustodian is authorized to act in order that the Custodian shall, if it deems
appropriate to do so, have sufficient time to establish a subcustodial
arrangement in accordance herewith. In the event, however, the Custodian is
unable to establish such arrangements prior to the time such investment is to be
acquired, the Custodian is authorized to designate at its discretion a local
safekeeping agent, and the use of such local safekeeping agent shall be at the
sole risk of the Fund, and accordingly the Custodian shall be responsible to the
Fund for the actions of such agent if and only to the extent the Custodian shall
have recovered from such agent for any damages caused the Fund by such agent.
The Custodian shall provide the Fund prompt notice if it receives Instruction
with respect to a security to be settled in a country for which a Subcustodian
has not been appointed or if the Custodian has appointed such an agent and at
the request of the Fund, the Custodian agrees to remove any security held on
behalf of the Fund by such an agent to a Subcustodian. Under such circumstances,
the Custodian shall collect income and respond to corporate developments on a
best efforts basis.
9. RESPONSIBILITY OF THE CUSTODIAN. In performing its duties and obligations
hereunder, the Custodian shall use reasonable care, prudence and diligence in
carrying out the provisions of this Agreement, provided that the Custodian shall
not be required to take any action that would be in contravention of Applicable
Law. Subject to the specific provisions of this Section, the Custodian shall be
liable for any direct damage or expense incurred by the Fund in consequence of
the Custodian's negligence, bad faith or willful misconduct. In no event shall
the Custodian be liable hereunder for any special or punitive damages or for
losses attributable to the diminution in the enterprise value of the Fund or
damage to reputation arising out of, pursuant to or in connection with this
Agreement even if the Custodian has been advised of the possibility of such
damages. It is agreed that the Custodian shall have no duty to assess the risks
inherent in the Fund's Investments or to provide investment advice with respect
to such Investments and that the Fund as principal shall bear any risks
attendant to particular Investments such as failure of counterparty or issuer.
9.1 LIMITATIONS OF PERFORMANCE. The Custodian shall not be responsible
under this Agreement for any failure to perform its duties, and shall not be
liable hereunder for any loss or damage in association with such failure to
perform, for or in consequence of the following causes:
16
9.1.1 FORCE MAJEURE. FORCE MAJEURE shall mean any
circumstance or event which is beyond the reasonable control
of the Custodian, a Subcustodian or any agent of the Custodian
or a Subcustodian and which adversely affects the performance
by the Custodian of its obligations hereunder, by the
Subcustodian of its obligations under its Subcustody Agreement
or by any other agent of the Custodian or the Subcustodian,
including any event caused by, arising out of or involving (a)
an act of God, (b) accident, fire, water damage or explosion,
(c) any computer, system or other equipment failure or
malfunction caused by any computer virus or the malfunction or
failure of any communications medium, (d) any interruption of
the power supply or other utility service, (e) any strike or
other work stoppage, whether partial or total, (f) any delay
or disruption resulting from or reflecting the occurrence of
any Sovereign Risk, (g) any disruption of, or suspension of
trading in, the securities, commodities or foreign exchange
markets, whether or not resulting from or reflecting the
occurrence of any Sovereign Risk, (h) any encumbrance on the
transferability of a currency or a currency position on the
actual settlement date of a foreign exchange transaction,
whether or not resulting from or reflecting the occurrence of
any Sovereign Risk, or (i) any other cause similarly beyond
the reasonable control of the Custodian.
9.1.2 COUNTRY RISK. COUNTRY RISK shall mean, with
respect to the acquisition, ownership, settlement or custody
of Investments in a jurisdiction, all risks relating to, or
arising in consequence of, systemic and markets factors
affecting the acquisition, payment for or ownership of
Investments including (a) the prevalence of crime and
corruption, (b) the inaccuracy or unreliability of business
and financial information, (c) the instability or volatility
of banking and financial systems, or the absence or inadequacy
of an infrastructure to support such systems, (d) custody and
settlement infrastructure of the market in which such
Investments are transacted and held, (e) the acts, omissions
and operation of any Securities Depository, (f) the risk of
the bankruptcy or insolvency of banking agents, counterparties
to cash and securities transactions, registrars or transfer
agents, and (g) the existence of market conditions which
prevent the orderly execution or settlement of transactions or
which affect the value of assets.
9.1.3 SOVEREIGN RISK. SOVEREIGN RISK shall mean, in respect
of any jurisdiction, including the United States of America,
where Investments are acquired or held hereunder or under a
Subcustody Agreement, (a) any act of war, terrorism, riot,
insurrection or civil commotion, (b) the imposition of any
investment, repatriation or exchange control restrictions by
any Governmental Authority, (c) the confiscation,
expropriation or nationalization of any Investments by any
Governmental Authority, whether de facto or de jure, (iv) any
devaluation or revaluation of the currency, (d) the imposition
of taxes, levies or other charges affecting Investments, (vi)
any change in the Applicable Law, or (e) any other economic or
political risk incurred or experienced beyond the Custodian's
control.
9.2. LIMITATIONS ON LIABILITY. The Custodian shall not be liable for
any loss, claim, damage or other liability arising from the following causes:
9.2.1 FAILURE OF THIRD PARTIES. The failure of any
third party including: (a) any issuer of Investments or
book-entry or other agent of an issuer; (b) any counterparty
with respect to any Investment, including any issuer of
exchange-traded or other futures, option, derivative or
commodities contract; (c) failure of an Investment Adviser,
Foreign Custody Manager (if not the Custodian) or other agent
of the Fund; or (d) failure of other third parties similarly
beyond the control or choice of the Custodian.
9.2.2 INFORMATION SOURCES. The Custodian may rely
upon information received from issuers of Investments or
agents of such issuers, information received from
Subcustodians and from other commercially reasonable sources
such as commercial data bases and the like, but shall not be
responsible for specific inaccuracies in such information,
provided that the Custodian has, complied with its standard of
care under this Agreement and relied upon such information in
good faith, or for the failure of any commercially reasonable
information provider.
17
9.2.3 RELIANCE ON INSTRUCTION. Action by the
Custodian or the Subcustodian in accordance with an
Instruction, even when such action conflicts with, or is
contrary to any provision of, the Fund's Declaration of Trust,
Certificate of Trust By-laws, Applicable Law, or actions by
the trustees, directors or shareholders of the Fund.
9.2.4 RESTRICTED SECURITIES. The limitations inherent
in the rights, transferability or similar investment
characteristics of a given Investment of the Fund.
10. INDEMNIFICATION. The Fund hereby indemnifies the Custodian and each
Subcustodian, and their respective agents, nominees and the partners, employees,
officers and directors, and agrees to hold each of them harmless from and
against all claims and liabilities, including counsel fees and taxes, incurred
or assessed against any of them in connection with the performance of this
Agreement and any Instruction, except such as may arise from its or any of its
agent's breach of the relevant standard of care set forth in this Agreement. If
a Subcustodian or any other person indemnified under the preceding sentence
gives written notice of a claim to the Custodian, the Custodian shall promptly
give written notice to the Fund.
11. REPORTS AND RECORDS. The Custodian shall:
11.1 create and maintain records relating to the performance
of its obligations under this Agreement and as required by the 1940 Act
and rules and regulations thereunder and under applicable federal and
state laws. All such records shall be the property of the Fund and, in
the event of the termination of this Agreement, shall be delivered to
the successor custodian;
11.2 make available to the Fund, its auditors, counsel, agents
and employees, during regular business hours of the Custodian, upon
reasonable request , all records maintained by the Custodian pursuant
to paragraph 11.1 above, subject, however, to all reasonable security
requirements of the Custodian then applicable to the records of its
custody customers generally; and
11.3 make available to the Fund all Electronic Reports; it
being understood that the Custodian shall not be liable hereunder for
the inaccuracy or incompleteness thereof or for errors in any
information included therein.
12. MISCELLANEOUS.
12.1 PROXIES, ETC. The Fund will promptly execute and deliver, upon
request, such proxies, powers of attorney or other instruments as may be
reasonable and necessary or desirable for the Custodian to provide, or to cause
18
any Subcustodian to provide, in its performance of custody services.
12.2 ENTIRE AGREEMENT. Except as specifically provided herein, this
Agreement constitutes the entire agreement between each Fund listed from an
Appendix A hereto, as amended from time to time, severally and not jointly, and
the Custodian with respect to the subject matter hereof. Accordingly, this
Agreement supersedes any custody agreement or other oral or written agreements
heretofore in effect between the Fund and the Custodian with respect to the
custody of the Fund's Investments. Appendix A may be amended by Pioneer
Investment Management, Inc. from time to time to add any additional Funds with
the consent of the Custodian
12.3 WAIVER AND AMENDMENT. No provision of this Agreement may be
waived, amended or modified, and no addendum or appendix to this Agreement shall
be or become effective, or be waived, amended or modified, except by an
instrument in writing executed by the party against which enforcement of such
waiver, amendment or modification is sought; provided, however, that an
Instruction shall, whether or not such Instruction shall constitute a waiver,
amendment or modification for purposes hereof, be deemed to have been accepted
by the Custodian when it commences actions pursuant thereto or in accordance
therewith.
12.4 GOVERNING LAW AND JURISDICTION. THIS AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND BE GOVERNED BY THE LAWS OF, THE COMMONWEALTH OF
MASSACHUSETTS, WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAW OF SUCH STATE. THE
PARTIES HERETO IRREVOCABLY CONSENT TO THE EXCLUSIVE JURISDICTION OF THE COURTS
OF THE COMMONWEALTH OF MASSACHUSETTS AND THE FEDERAL COURTS LOCATED IN THE
COMMONWEALTH OF MASSACHUSETTS.
12.5 NOTICES. Notices and other writings contemplated by this
Agreement, other than Instructions, shall be delivered (a) by hand, (b) by first
class registered or certified mail, postage prepaid, return receipt requested,
(c) by a nationally recognized overnight courier, or (d) by facsimile
transmission, provided that any notice or other writing sent by facsimile
transmission shall also be mailed, postage prepaid, to the party to whom such
notice is addressed. All such notices shall be addressed, as follows:
If to the Fund:
c/o Pioneer Investment Management, Inc.
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and
19
[Fund Name]
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Vin____________ Treasurer
Telephone: (781)
Facsimile: (781)
If to the Custodian:
Xxxxx Brothers Xxxxxxxx & Co.
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Manager, Securities Department
Telephone: (000) 000-0000
Facsimile: (000) 000-0000,
or such other address as the Fund or the Custodian may have designated
in writing to the other.
12.6 HEADINGS. Paragraph headings included herein are for convenience
of reference only and shall not modify, define, expand or limit any of the terms
or provisions hereof.
12.7 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original. This Agreement shall
become effective when one or more counterparts have been signed and delivered by
the Fund and the Custodian.
12.8 CONFIDENTIALITY. The parties hereto agree that each shall treat
confidentially the terms and conditions of this Agreement and 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 or obtaining 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. The foregoing shall not be applicable to any information that
is publicly available when provided or thereafter becomes publicly available
other than through a breach of this Agreement, or that is required to be
disclosed by or to any bank examiner of the Custodian or any Subcustodian, any
Regulatory Authority, any auditor of the parties hereto, or by judicial or
administrative process or otherwise by Applicable Law.
12.9 COUNSEL. In fulfilling its duties hereunder, the Custodian shall
be entitled to receive and act upon the
20
advice of (i) counsel regularly retained by the Custodian in respect of
such matters, (ii) counsel for the Fund or (iii) such counsel as the Fund and
the Custodian may agree upon, with respect to all matters, and the Custodian
shall be without liability for any action reasonably taken or omitted pursuant
to such advice.
12.10 CONFLICT. Nothing contained in this Agreement shall prevent the
Custodian and its associates from (i) dealing as a principal or an intermediary
in the sale, purchase or loan of the Fund's Investments to, or from the
Custodian or its associates; (ii) acting as a custodian, a subcustodian, a
trustee, an agent, securities dealer, an investment manager or in any other
capacity for any other client whose interests may be adverse to the interests of
the Fund; or (iii) buying, holding, lending, and dealing in any way in any
assets for the benefit of its own account, or for the account of any other
client whose interests may be adverse to the Fund notwithstanding that the same
or similar assets may be held or dealt in by, or for the account of the Fund by
the Custodian. The Fund hereby voluntarily consents to, and waives any potential
conflict of interest between the Custodian and/or its associates and the Fund,
and agrees that:
(a) the Custodian's and/or its associates' engagement in
any such transaction shall not disqualify the Custodian
from continuing to perform as the custodian of the Fund
under this Agreement;
(b) the Custodian and/or its associates shall not be under any
duty to disclose any information in connection with any such
transaction to the Fund;
(c) the Custodian and/or its associates shall not be liable to
account to the Fund for any profits or benefits made or
derived by or in connection with any such transaction; and
(d) the Fund shall use all reasonable efforts to disclose
this provision, among other provisions in this
Agreement, to its shareholders.
13. DEFINITIONS. The following defined terms will have the respective meanings
set forth below.
13.1 ADVANCE shall mean any extension of credit by or through the
Custodian or by or through any Subcustodian and shall include amounts paid to
third parties for account of the Fund or in discharge of any expense, tax or
other item payable by the Fund.
13.2 AGENCY ACCOUNT(S) shall mean any deposit account opened on the
books of a Subcustodian or other banking institution in accordance with Section
7.1.
13.3 AGENT(S) shall have the meaning set forth in the last sentence of
Section 6.
13.4 APPLICABLE LAW shall mean with respect to each jurisdiction, all
(a) laws, statutes, treaties, regulations, guidelines (or their equivalents);
(b) orders, interpretations licenses and permits; and (c) judgments, decrees,
injunctions
21
writs, orders and similar actions by a court of competent
jurisdiction; compliance with which is required or customarily observed in such
jurisdiction.
13.5 AUTHORIZED PERSON(S) shall mean any person or entity authorized to
give Instructions on behalf of the Fund in accordance with Section 4.1.
13.6 BOOK-ENTRY AGENT(S) shall mean an entity acting as agent for the
issuer of Investments for purposes of recording ownership or similar entitlement
to Investments, including without limitation a transfer agent or registrar.
13.7 CLEARING CORPORATION shall mean any entity or system established
for purposes of providing securities settlement and movement and associated
functions for a given market.
13.8 DELEGATION AGREEMENT shall mean any separate agreement entered
into between the Custodian and the Fund or its authorized representative with
respect to certain matters concerning the appointment and administration of
Subcustodians delegated to the Custodian pursuant to Rule 17f-5. 13.9 FOREIGN
CUSTODY MANAGER shall mean the Fund's foreign custody manager appointed pursuant
to Rule 17f-5 of the 1940 Act.
13.10 FOREIGN FINANCIAL REGULATORY AUTHORITY shall have the meaning
given by Section 2(a)(50) of the 0000 Xxx.
13.11 FUNDS TRANSFER SERVICES SCHEDULE shall mean any separate schedule
entered into between the Custodian and the Fund or its authorized representative
with respect to certain matters concerning the processing of payment orders from
Principal Accounts of the Fund.
13.12 GLOBAL CUSTODY NETWORK LISTING shall mean the Countries and
Subcustodians approved for Investments in non-U.S. Markets.
13.13 INSTRUCTION(S) shall have the meaning assigned in Section 4.
13.14 INVESTMENT ADVISER shall mean any person or entity who is an
Authorized Person to give Instructions with respect to the investment and
reinvestment of the Fund's Investments.
13.15 INVESTMENT(S) shall mean any investment asset of the Fund,
including without limitation securities, bonds, notes, and debentures as well as
receivables, derivatives, contractual rights or entitlements and other
intangible assets.
13.16 MARGIN ACCOUNT shall have the meaning set forth in Section 6.4
hereof.
13.17 PRINCIPAL ACCOUNT(S) shall mean deposit accounts of the Fund
carried on the books of BBH&Co. as principal in accordance with Section 7.
22
13.18 SAFEKEEPING ACCOUNT shall mean an account established on the
books of the Custodian or any Subcustodian for purposes of segregating the
interests of the Fund (or clients of the Custodian or Subcustodian) from the
assets of the Custodian or any Subcustodian.
13.19 SECURITIES DEPOSITORY shall mean a central or book entry system
or agency established under Applicable Law for purposes of recording the
ownership and/or entitlement to investment securities for a given market that,
if a foreign Securities Depository, meets the definitional requirements of Rule
17f-7 under the 1940 Act.
13.20 SUBCUSTODIAN(S) shall mean each foreign bank appointed by the
Custodian pursuant to Section 8, but shall not include Securities Depositories.
13.21 TRI-PARTY AGREEMENT shall have the meaning set forth in
Section 6.4 hereof.
13.22 1940 ACT shall mean the Investment Company Act of 1940, as
amended..
14. COMPENSATION. The Fund agrees to pay to the Custodian (a) a fee in an
amount set forth in the fee letter between the Fund and the Custodian in
effect on the date hereof or as amended from time to time, and (b) all
out-of-pocket expenses incurred by the Custodian in connection with this
Agreement, including the fees and expenses of all Subcustodians, and payable
from time to time. Amounts payable by the Fund under and pursuant to this
Section 14 shall be payable by wire transfer to the Custodian at BBH&Co. in New
York, New York.
15. TERMINATION. This Agreement may be terminated by either party in accordance
with the provisions of this Section. The provisions of this Agreement 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.
15.1 NOTICE AND EFFECT. This Agreement may be terminated by either
party by written notice effective no sooner than seventy-five (75) consecutive
calendar days following the date that notice to such effect shall be delivered
to other party at its address set forth in paragraph 12.5 hereof.
15.2 SUCCESSOR CUSTODIAN. In the event of the appointment of a
successor custodian, it is agreed that the Investments of the Fund held by the
Custodian or any Subcustodian shall be delivered to the successor custodian in
23
accordance with reasonable Instructions. The Custodian agrees to cooperate with
the Fund in the execution of documents and performance of other actions
necessary or desirable in order to facilitate the succession of the new
custodian. If no successor custodian shall be appointed, the Custodian shall in
like manner transfer the Fund's Investments in accordance with Instructions.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed as of the date first above written.
XXXXX BROTHERS XXXXXXXX & CO. EACH FUND LISTED ON APPENDIX A HERETO,
SEVERALLY AND NOT JOINTLY
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxxx
------------------------- ------------------------
Name: Xxxxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxxx
Title: Partner Title: Executive Vice President of
each Fund
Date: August 20, 2001 Date:
24
FUNDS TRANSFER SERVICES SCHEDULE TO CUSTODIAN AGREEMENT
1. EXECUTION OF PAYMENT ORDERS. Xxxxx Brothers Xxxxxxxx & Co. (the Custodian) is
hereby instructed by Pioneer Investment Management, Inc. (the Company) to
execute each payment order, whether denominated in United States dollars or
other applicable currencies, received by the Custodian in the Company's name as
sender and authorized and confirmed by an Authorized Person as defined in a
Custodian Agreement dated as of July 1, 2001 by and between the Custodian and
the Company, as amended or restated from time thereafter (the Agreement),
provided that the Company has sufficient available funds on deposit in a
Principal Account as defined in the Agreement and provided that the order (i) is
received by the Custodian in the manner specified in this Funds Transfer
Services Schedule or any amendment hereafter; (ii) complies with any written
instructions and restrictions of the Company as set forth in this Funds Transfer
Services Schedule or any amendment hereafter; (iii) is authorized by the Company
or is verified by the Custodian in compliance with a security procedure set
forth in Paragraph 2 below for verifying the authenticity of a funds transfer
communication sent to the Custodian in the name of the Company or for the
detection of errors set forth in any such communication; and (iv) contains
sufficient data to enable the Custodian to process such transfer.
2. SECURITY PROCEDURE. The Company hereby elects to use the procedure selected
below as its security procedure (the Security Procedure). The Security Procedure
will be used by the Custodian to verify the authenticity of a payment order or a
communication amending or canceling a payment order. The Custodian will act on
instructions received provided the instruction is authenticated by the Security
Procedure. The Company agrees and acknowledges in connection with (i) the size,
type and frequency of payment orders normally issued or expected to be issued by
the Company to the Custodian, (ii) all of the security procedures offered to the
Company by the Custodian, and (iii) the usual security procedures used by
customers and receiving banks similarly situated, that authentication through
the Security Procedure shall be deemed commercially reasonable for the
authentication of all payment orders submitted to the Custodian. The Company
hereby elects (PLEASE CHOOSE ONE) the following Security Procedure as described
below:
[ ] BIDS AND BIDS WORLDVIEW PAYMENT PRODUCTS. BIDS and BIDS Worldview
Payment Products, are on-line payment order authorization facilities
with built-in authentication procedures. The Custodian and the Company
shall each be responsible for maintaining the confidentiality of
passwords or other codes to be used by them in connection with BIDS.
The Custodian will act on instructions received through BIDS without
duty of further confirmation unless the Company notifies the Custodian
that its password is not secure.
[X] SWIFT. Primary Method the Custodian and the Company shall comply
with SWIFT's authentication procedures. The Custodian will act on
instructions received via SWIFT provided the instruction is
authenticated by the SWIFT system.
[ ] TESTED TELEX. The Custodian will accept payment orders sent by
tested telex, provided the test key matches the algorithmic key the
Custodian and Company have agreed to use.
[ ] COMPUTER TRANSMISSION. The Custodian is able to accept transmissions
sent from the Company's computer facilities to the Custodian's
computer facilities provided such transmissions are encrypted and
digitally certified or are otherwise authenticated in a reasonable
manner based on available technology. Such procedures shall be
established in an operating protocol between the Custodian and the
Company.
[X] TELEFAX INSTRUCTIONS. Back-Up Method A payment order transmitted
to the Custodian by telefax transmission shall transmitted by the
Company to a telephone number specified from time to time by the
Custodian for such purposes. If it detects no discrepancies, the
Custodian will then either:
1. If the telefax requests a repetitive payment order,
the Custodian may call the Company at its last known
telephone number, request to speak to the Company or
Authorized Person, and confirm the authorization and
the details of the payment order (a "Callback"); or
2. If the telefax requests a non-repetitive order, the Custodian
will perform a Callback.
All faxes must be accompanied by a fax cover sheet which indicates the
sender's name, company name, telephone number, fax number, number of
pages, and number of transactions or instructions attached.
25
[ ] TELEPHONIC. Alternative Back-Up Method A telephonic payment order
shall be called into the Custodian at the telephone number designated
from time to time by the Custodian for that purpose. The caller shall
identify herself/himself as an Authorized Person. The Custodian shall
obtain the payment order data from the caller. The Custodian shall
then:
1. If a telephonic repetitive payment order, the Custodian may
perform a Callback; or
2. If a telephonic non-repetitive payment order, the Custodian
will perform a Callback.
In the event the Company chooses a procedure which is not a Security Procedure
as described above, the Company agrees to be bound by any payment order (whether
or not authorized) issued in its name and accepted by the Custodian in
compliance with the procedure selected by the Company.
3. REJECTION OF PAYMENT ORDERS. The Custodian shall give the Company timely
notice of the Custodian's rejection of a payment order. Such notice may be given
in writing or orally by telephone, each of which is hereby deemed commercially
reasonable. In the event the Custodian fails to execute a properly executable
payment order and fails to give the Company notice of the Custodian's
non-execution, the Custodian shall be liable only for the Company's actual
damages and only to the extent that such damages are recoverable under UCC 4A
(as defined in Paragraph 7 below). Notwithstanding anything in this Funds
Transfer Services Schedule and the Agreement to the contrary, the Custodian
shall in no event be liable for any consequential or special damages under this
Funds Transfer Services Schedule, whether or not such damages relate to services
covered by UCC 4A, even if the Custodian has been advised of the possibility of
such damages. Whenever compensation in the form of interest is payable by the
Custodian to the Company pursuant to this Funds Transfer Services Schedule, such
compensation will be payable at the rate specified in UCC 4A.
4. CANCELLATION OF PAYMENT ORDERS. The Company may cancel a payment order but
the Custodian shall have no liability for the Custodian's failure to act on a
cancellation instruction unless the Custodian has received such cancellation
instruction at a time and in a manner affording the Custodian reasonable
opportunity to act prior to the Custodian's execution of the order. Any
cancellation shall be sent and confirmed in the manner set forth in Paragraph 2
above.
5. RESPONSIBILITY FOR THE DETECTION OF ERRORS AND UNAUTHORIZED PAYMENT ORDERS.
Except as may be provided, the Custodian is not responsible for detecting any
Company error contained in any payment order sent by the Company to the
Custodian. In the event that the Company's payment order to the Custodian either
(i) identifies the beneficiary by both a name and an identifying or bank account
number and the name and number identify different persons or entities, or (ii)
identifies any bank by both a name and an identifying number and the number
identifies a person or entity different from the bank identified by name,
execution of the payment order, payment to the beneficiary, cancellation of the
payment order or actions taken by any bank in respect of such payment order may
be made solely on the basis of the number. The Custodian shall not be liable for
interest on the amount of any payment order that was not authorized or was
erroneously executed unless the Company so notifies the Custodian within thirty
(30) business days following the Company's receipt of notice that such payment
order had been processed. If a payment order in the name of the Company and
accepted by the Custodian was not authorized by the Company, the liability of
the parties will be governed by the applicable provisions of UCC 4A.
6. LAWS AND REGULATIONS. The rights and obligations of the Custodian and the
Company with respect to any payment order executed pursuant to this Funds
Transfer Services Schedule will be governed by any applicable laws, regulations,
circulars and funds transfer system rules, the laws and regulations of the
United States of America and of other relevant countries including exchange
control regulations and limitations on dealings or other sanctions, and
including without limitation those sanctions imposed under the law of the United
States of America by the Office of Foreign Assets Control. Any taxes, fines,
costs, charges or fees imposed by relevant authorities on such transactions
shall be for the account of the Company.
7. MISCELLANEOUS. All accounts opened by the Company or its authorized agents at
the Custodian subsequent to the date hereof shall be governed by this Funds
Transfer Schedule. All terms used in this Funds Transfer Services Schedule shall
have the meaning set forth in Article 4A of the Uniform Commercial Code as
currently in effect in the State of New York (UCC 4A) unless otherwise set forth
herein. The terms and conditions of this Funds Transfer Services Schedule are in
addition to, and do not modify or otherwise affect, the terms and conditions of
the Agreement and any other agreement or arrangement between the parties hereto.
26
8. INDEMNIFICATION. The Custodian does not recommend the sending of
instructions by telefax or telephonic means as provided in Paragraph 2. BY
ELECTING TO SEND INSTRUCTIONS BY TELEFAX OR TELEPHONIC MEANS, THE COMPANY AGREES
TO INDEMNIFY THE CUSTODIAN AND ITS PARTNERS, OFFICERS AND EMPLOYEES FOR ALL
LOSSES THEREFROM.
---------------------------------------------
OPTIONAL: The Custodian will perform a Callback if instructions are sent
by telefax or telephonic means as provided in Paragraph 2. THE COMPANY
MAY, AT ITS OWN RISK AND BY HEREBY AGREEING TO INDEMNIFY THE CUSTODIAN
AND ITS PARTNERS, OFFICERS AND EMPLOYEES FOR ALL LOSSES THEREFROM OTHER
THAN LOSSES RESULTING FROM THE CUSTODIANS OWN NEGLIGENCE OR WILLFUL
DEFAULT, ELECT TO WAIVE A CALLBACK BY THE CUSTODIAN BY INITIALLING
HERE:____
---------------------------------------------
Pioneer Investment Management, Inc. is a member of the UniCredit Italian
Banking Group, register of banking groups.
Accepted and agreed:
XXXXX BROTHERS XXXXXXXX & CO. EACH OF THE FUNDS LISTED ON
APPENDIX A HERETO, AS AMENDED FROM
TIME TO TIME
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxxx
Title: Partner Title: Executive Vice President
Date: August 20, 2001 Date:
27
17F-5 DELEGATION SCHEDULE
By its execution of this Delegation Schedule dated as of July 1, 2001.
Each Fund listed on Appendix A hereto, as amended from time to time, severally
and not jointly, each of which is a management investment company registered
with the Securities and Exchange Commission (the "Commission") under the
Investment Company Act of 1940, as amended, (the "1940 Act"), acting through its
Board of Trustees or its duly appointed representative (each a "Fund"), hereby
appoints XXXXX BROTHERS XXXXXXXX & CO., a New York limited partnership with an
office in Boston, Massachusetts (the "Delegate") as its delegate to perform
certain functions with respect to the custody of Fund's Assets outside the
United States.
1. MAINTENANCE OF FUND'S ASSETS ABROAD. The Fund, acting through its Board of
Trustees or its duly authorized representative, hereby instructs Delegate
pursuant to the terms of the Custodian Agreement dated as of the date hereof
executed by and between the Fund and the Delegate (the "Custodian Agreement") to
place and maintain the Fund's Assets in countries outside the United States in
accordance with Instructions received from the Fund's Investment Adviser. Such
instruction shall represent a Proper Instruction under the terms of the
Custodian Agreement. The Fund acknowledges that: (a) the Delegate shall perform
services hereunder only with respect to the countries where it accepts
delegation as Foreign Custody Manager as indicated on your Global Custody
Network Listing; (b) depending on conditions in the particular country, advance
notice may be required before the Delegate shall be able to perform its duties
hereunder in or with respect to such country (such advance notice to be
reasonable in light of the specific facts and circumstances attendant to
performance of duties in such country); and (c) nothing in this Delegation
Schedule shall require the Delegate to provide delegated or custodial services
in any country, and there may from time to time be countries as to which the
Delegate determines it will not provide delegation services.
2. DELEGATION. Pursuant to the provisions of Rule 17f-5 under the 1940 Act as
amended, the Board hereby delegates to the Delegate, and the Delegate hereby
accepts such delegation and agrees to
1
perform, only those duties set forth in this Delegation Schedule concerning
the safekeeping of the Fund's Assets in each of the countries as to which it
acts as the Board's delegate. The Fund appoints the Delegate as the Fund's
"Foreign Custody Manager" as such term is used in Rule 17f-5 under the 1940 Act.
The Delegate is hereby authorized to take such actions on behalf of or in the
name of the Fund as are reasonably required to discharge its duties under this
Delegation Schedule, including, without limitation, to cause the Fund's Assets
to be placed with a particular Eligible Foreign Custodian in accordance
herewith.
3. SELECTION OF ELIGIBLE FOREIGN CUSTODIAN AND CONTRACT ADMINISTRATION. The
Delegate shall perform the following duties with respect to the selection of
Eligible Foreign Custodians and administration of certain contracts governing
the Fund's foreign custodial arrangements:
(a) SELECTION OF ELIGIBLE FOREIGN CUSTODIAN. The Delegate shall
place and maintain the Fund's Assets with an Eligible Foreign Custodian;
PROVIDED that the Delegate shall have determined that the Fund's Assets will be
subject to reasonable care based on the standards applicable to custodians in
the relevant market after considering all factors relevant to the safekeeping of
such assets including without limitation:
(i) The Eligible Foreign Custodian's practices, procedures, and
internal controls, including, but not limited to, the physical
protections available for certificated securities (if applicable), the
controls and procedures for dealing with any Securities Depository, the
method of keeping custodial records, and the security and data
protection practices;
(ii) Whether the Eligible Foreign Custodian has the requisite
financial strength to provide reasonable care for the Fund's Assets;
(iii) The Eligible Foreign Custodian's general reputation and
standing; and
(iv) Whether the Fund will have jurisdiction over and be able to
enforce judgments against the Eligible Foreign Custodian, such as by
virtue of the existence of any offices of such Eligible Foreign
Custodian in the United States or such Eligible Foreign Custodian's
appointment of an agent for service of process in the United States or
consent to jurisdiction in the United States.
(b) CONTRACT ADMINISTRATION. The Delegate shall cause that the
foreign custody arrangements with an Eligible Foreign Custodian shall be
governed by a written contract that the Delegate
2
has determined will provide reasonable care for Fund assets based on the
standards specified in paragraph (c)(1) of Rule 17f-5 under the 1940 Act . Each
such contract shall, except as set forth in the last paragraph of this
subsection (b), include provisions that provide:
(i) For indemnification or insurance arrangements (or any
combination of the foregoing) that will adequately protect the Fund
against the risk of loss of assets held in accordance with such
contract;
(ii) That the Fund's Assets will not be subject to any right,
charge, security interest, lien or claim of any kind in favor of the
Eligible Foreign Custodian or its creditors except a claim of payment
for their safe custody or administration or, in the case of cash
deposits, liens or rights in favor of creditors of such Custodian
arising under bankruptcy, insolvency or similar laws;
(iii) That beneficial ownership of the Fund's Assets will be
freely transferable without the payment of money or value other than
for safe custody or administration;
(iv) That adequate records will be maintained identifying the
Fund's Assets as belonging to the Fund or as being held by a third
party for the benefit of the Fund;
(v) That the Fund's independent public accountants will be given
access to those records described in (iv) above or confirmation of the
contents of such records; and
(vi) That the Delegate will receive sufficient and timely
periodic reports with respect to the safekeeping of the Fund's Assets,
including, but not limited to, notification of any transfer to or from
the Fund's account or a third party account containing the Fund's
Assets.
Such contract may contain, in lieu of any or all of the provisions
specified in this Section 3 (b), such other provisions that the
Delegate determines will provide, in their entirety, the same or a
greater level of care and protection for the Fund's Assets as the
specified provisions, in their entirety.
(c) LIMITATION TO DELEGATED SELECTION. Notwithstanding anything in this
Delegation Schedule to the contrary, the duties under this Section 3 shall apply
only to Eligible Foreign Custodians selected by the Delegate and shall not apply
to Securities Depositories or to any Eligible Foreign Custodian that the
Delegate is directed to use pursuant to Section 7.
4. MONITORING. The Delegate shall establish a system to monitor at reasonable
3
intervals (but at least annually) the appropriateness of maintaining the Fund's
Assets with each Eligible Foreign Custodian that has been selected by the
Delegate pursuant to Section 3 of this Delegation Schedule. The Delegate shall
monitor the continuing appropriateness of placement of the Fund's Assets in
accordance with the criteria established under Section 3(a) of this Delegation
Schedule. The Delegate shall monitor the continuing appropriateness of the
contract governing the Fund's arrangements in accordance with the criteria
established under Section 3(b) of this Delegation Schedule.
5. REPORTING. At least annually and more frequently as mutually agreed between
the parties, the Delegate shall provide to the Board written reports specifying
placement of the Fund's Assets with each Eligible Foreign Custodian selected by
the Delegate pursuant to Section 3 of this Delegation Schedule and shall
promptly report as to any material changes to such foreign custody arrangements.
Delegate will prepare such a report with respect to any Eligible Foreign
Custodian that the Delegate has been instructed to use pursuant to Section 7
only to the extent specifically agreed with respect to the particular situation.
6. WITHDRAWAL OF FUND'S ASSETS. If the Delegate determines that an arrangement
with a specific Eligible Foreign Custodian selected by the Delegate under
Section 3 of this Delegation Schedule no longer meets the requirements of said
Section, Delegate shall withdraw the Fund's Assets from the non-complying
arrangement as soon as reasonably practicable; PROVIDED, however, that if in the
reasonable judgment of the Delegate, such withdrawal would require liquidation
of any of the Fund's Assets or would materially impair the liquidity, value or
other investment characteristics of the Fund's Assets, it shall be the duty of
the Delegate to provide information regarding the particular circumstances and
to act only in accordance with Proper Instructions with respect to such
liquidation or other withdrawal.
7. DIRECTION AS TO ELIGIBLE FOREIGN CUSTODIAN. Notwithstanding this Delegation
Schedule, the Fund, acting through its Board, its Investment Adviser or its
other authorized representative, may direct the Delegate to place and maintain
the Fund's Assets with a particular Eligible Foreign Custodian, including
without limitation with respect to investment in countries as to which the
Custodian will not provide delegation services. In such event, the Delegate
shall be entitled to rely on any such instruction as a Proper Instruction under
the terms of the Custodian Agreement and shall have no duties under this
Delegation Schedule with respect to such arrangement save those that it may
undertake specifically in writing with respect to each particular instance.
4
8. STANDARD OF CARE. In carrying out its duties under this Delegation Schedule,
the Delegate agrees to exercise reasonable care, prudence and diligence
such as a person having responsibility for safekeeping the Fund's Assets would
exercise.
9. REPRESENTATIONS.The Delegate hereby represents and warrants that it is a U.S.
Bank and that this Delegation Schedule has been duly authorized, executed and
delivered by the Delegate and is a legal, valid and binding agreement of the
Delegate.
The Fund hereby represents and warrants that its Board of Trustees
has determined that it is reasonable to rely on the Delegate to perform the
delegated responsibilities provided for herein and that this Delegation Schedule
has been duly authorized, executed and delivered by the Fund and is a legal,
valid and binding agreement of the Fund.
10. EFFECTIVENESS; TERMINATION. This Delegation Schedule shall be effective as
of the date on which this Delegation Schedule shall have been accepted by the
Delegate, as indicated by the date set forth below the Delegate's signature.
This Delegation Schedule may be terminated at any time, without penalty, by
written notice from the terminating party to the non-terminating party. Such
termination shall be effective on the 30th day following the date on which the
non-terminating party shall receive the foregoing notice. The foregoing to the
contrary notwithstanding, this Delegation Schedule shall be deemed to have been
terminated concurrently with the termination of the Custodian Agreement.
11. NOTICES.Notices and other communications under this Delegation Schedule are
to be made in accordance with the arrangements designated for such purpose under
the Custodian Agreement unless otherwise indicated in a writing referencing this
Delegation Schedule and executed by both parties.
12. DEFINITIONS. Capitalized terms in this Delegation Schedule have the
following meanings:
a. ELIGIBLE FOREIGN CUSTODIAN - shall have the meaning set forth
in Rule 17f-5(a)(1) and shall also include a U.S. Bank.
b. FUND'S ASSETS - shall mean any of the Fund's investments
(including foreign currencies) for which the primary market is
outside the United States, and such cash and cash equivalents as
are reasonably necessary to effect the Fund's transactions in such
investments.
5
c. PROPER INSTRUCTIONS - shall have the meaning set forth in the
Custodian Agreement.
d. SECURITIES DEPOSITORY - shall have the meaning set forth in
Rule 17f-7.
e. SOVEREIGN RISK - shall have the meaning set forth in
Section [6.3] of the Custodian Agreement.
f . U.S. BANK - shall mean a bank which qualifies to serve as a
custodian of assets of investment companies under Section 17(f) of
the Act.
13. GOVERNING LAW AND JURISDICTION. This Delegation Schedule shall be construed
in accordance with the laws of the Commonwealth of Massachusetts. The parties
hereby submit to the exclusive jurisdiction of the Federal courts sitting in the
Commonwealth of Massachusetts or of the state courts of such Commonwealth.
14. FEES. Delegate shall perform its functions under this Delegation Schedule
for the compensation determined under the Custodian Agreement.
15. INTEGRATION. This Delegation Schedule sets forth all of the Delegate's
duties with respect to the selection and monitoring of Eligible Foreign
Custodians, the administration of contracts with Eligible Foreign Custodians,
the withdrawal of assets from Eligible Foreign Custodians and the issuance of
reports in connection with such duties. The terms of the Custodian Agreement
shall apply generally as to matters not expressly covered in this Delegation
Schedule, including dealings with the Eligible Foreign Custodians in the course
of discharge of the Delegate's obligations under the Custodian Agreement.
6
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
duly executed as of the date first above written.
XXXXX BROTHERS XXXXXXXX & CO. EACH FUND LISTED ON APPENDIX A
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxxx
------------------------- ------------------------
Name: Xxxxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxxx
Title: Partner Title: Executive Vice President
7
APPENDIX A
TO
CUSTODIAN AGREEMENT
BETWEEN
XXXXX BROTHERS XXXXXXXX & CO.
AND
EACH OF THE MANAGEMENT INVESTMENT COMPANIES
LISTED ON APPENDIX "A" THERETO
Dated as of October 1, 2019
The following is a list of Funds for which the Custodian shall serve under the
Custodian Agreement dated as of July 1, 2001 (the "Agreement"):
PIONEER BOND FUND
PIONEER DIVERSIFIED HIGH INCOME TRUST
PIONEER EQUITY INCOME FUND
PIONEER FLOATING RATE TRUST
PIONEER FUND
PIONEER HIGH INCOME TRUST
PIONEER HIGH YIELD FUND
PIONEER ASSET ALLOCATION SERIES, a series trust consisting of:
PIONEER SOLUTIONS - BALANCED FUND
PIONEER ILS INTERVAL FUND
PIONEER ILS BRIDGE FUND
PIONEER MID CAP VALUE FUND
PIONEER MONEY MARKET TRUST, a series trust consisting of:
PIONEER US GOVERNMENT MONEY MARKET FUND
PIONEER MUNICIPAL HIGH INCOME TRUST
PIONEER MUNICIPAL HIGH INCOME ADVANTAGE TRUST
PIONEER REAL ESTATE SHARES
PIONEER SECURITIZED INCOME FUND
PIONEER SERIES TRUST II, a series trust consisting of:
PIONEER AMT-FREE MUNICIPAL FUND
PIONEER SELECT MID CAP GROWTH
PIONEER SERIES TRUST III, a series trust consisting of:
PIONEER DISCIPLINED VALUE FUND
PIONEER SERIES TRUST IV, a series trust consisting of:
PIONEER BALANCED ESG FUND
PIONEER MULTI-ASSET INCOME FUND
PIONEER SERIES TRUST V, a series trust consisting of:
PIONEER GLOBAL EQUITY FUND
PIONEER HIGH INCOME MUNICIPAL FUND
PIONEER CORPORATE HIGH YIELD FUND
PIONEER SERIES TRUST VI, a series trust consisting of:
PIONEER FLOATING RATE FUND
PIONEER FLEXIBLE OPPORTUNITIES FUND
FLEXIBLE OPPORTUNITIES COMMODITY FUND LTD
(a wholly-owned subsidiary of Pioneer Flexible Opportunities Fund)
PIONEER SERIES TRUST VII, a series trust consisting of:
PIONEER GLOBAL HIGH YIELD FUND
PIONEER GLOBAL MULTISECTOR INCOME FUND
PIONEER SERIES TRUST VIII, a series consisting of:
PIONEER INTERNATIONAL EQUITY FUND
PIONEER SERIES TRUST X, a series trust consisting of:
PIONEER DYNAMIC CREDIT FUND
PIONEER FUNDAMENTAL GROWTH FUND
PIONEER MULTI-ASSET ULTRASHORT INCOMEFUND
PIONEER SERIES TRUST XI, a series trust consisting of:
PIONEER CORE EQUITY FUND
PIONEER SERIES TRUST XII, a series trust consisting of:
PIONEER DISCIPLINED GROWTH FUND
PIONEER SERIES TRUST XIV, a series trust consisting of:
PIONEER EMERGING MARKETS EQUITY FUND
PIONEER SHORT TERM INCOME FUND
PIONEER STRATEGIC INCOME FUND
PIONEER VARIABLE CONTRACTS TRUST, a series trust consisting of:
PIONEER BOND VCT PORTFOLIO
PIONEER EQUITY INCOME VCT PORTFOLIO
PIONEER FUND VCT PORTFOLIO
PIONEER HIGH YIELD VCT PORTFOLIO
PIONEER MID CAP VALUE VCT PORTFOLIO
PIONEER REAL ESTATE SHARES VCT PORTFOLIO
PIONEER SELECT MID CAP GROWTH VCT PORTFOLIO
PIONEER STRATEGIC INCOME VCT PORTFOLIO
IN WITNESS WHEREOF, each of the parties hereto has caused this Appendix to be
executed in its name and on its behalf.
Each of the open-end management XXXXX BROTHERS XXXXXXXX & CO.
investment companies listed
on this Appendix "A"
By: /s/ Xxxxxxxxxxx X. Xxxxxx By: /s/ Xxxxxxxxx X. Xxxxxxxx
------------------------- -------------------------
Name: Xxxxxxxxxxx X. Xxxxxx Name: Xxxxxxxxx X. Xxxxxxxx
Title: Secretary Title: Managing Director
