EXHIBIT 99.8
CUSTODIAN AGREEMENT
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AGREEMENT made as of this 28th day of September, 1978, by and between
XXXXXXX XXXXX HIGH INCOME FUND, INC., a Maryland corporation having its
principal place of business at 0 Xxxxxxx Xxxxx, 000 Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx,, 10080 (hereinafter called the "Fund"), and STATE STREET BANK AND TRUST
COMPANY, a Massachusetts banking corporation having its principal place of
business at 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, 00000 (hereinafter
called "State Street").
WITNESSETH THAT:
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In consideration of the mutual agreements herein contained, the Fund
and State Street, intending to be legally bound, hereby agree as
follows:
I. DEPOSITORY
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The Fund agrees to and does hereby appoint State Street its depository
subject to the provisions hereof, and likewise agrees to deliver to State Street
certified or authenticated copies of its Articles of Incorporation and By-Laws,
all amendments thereto, a certified copy of the resolution of the Board of
Directors appointing State Street to act in the capacities covered by this
Agreement and authorizing the signing of this Agreement and copies of such
resolutions of its Board of Directors, contracts and other documents as may be
required by State Street in the performance of its duties hereunder.
II. CUSTODIAN
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1. The Fund agrees to and does hereby appoint State Street its
Custodian, subject to the provisions hereof, and likewise, subject to the
provisions hereof, agrees that State Street shall retain all securities and cash
now owned or hereafter acquired by the Fund, and the Fund also agrees to deliver
and pay or cause to be delivered and paid to State Street, as Custodian, all
securities and cash hereafter acquired by the Fund.
2. All securities delivered to State Street (other than in bearer form)
shall be properly endorsed and in form for transfer or in the name of State
Street or of a nominee of State Street or in the name of the Fund or of a
nominee of the Fund.
3. As Custodian, State Street shall have and perform the following
powers and duties:
A. Safekeeping. To keep safely in a separate account the securities
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of the Fund and on behalf of the Fund, from time to time, to receive delivery of
certificates for safekeeping and to keep such certificates physically segregated
at all times from those of any other person. State Street shall maintain records
of all receipts, deliveries and locations of such securities, together with a
current inventory thereof and shall conduct periodic physical inspections of
certificates representing bonds and other securities held by it under this
Agreement in such manner as State Street shall determine from
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time to time to be advisable in order to verify the accuracy of such inventory.
With respect to securities held by any agent appointed pursuant to Paragraph 6-C
of Section II hereof, and with respect to securities held by any Sub-Custodian
appointed pursuant to Paragraph 6-D of Section II hereof, State Street may rely
upon certificates from such agent as to the holdings of such agent and from such
Sub-Custodian as to the holdings of such Sub-Custodian, it being understood
that such reliance in no way relieves State Street of its responsibilities under
this Agreement. State Street will promptly report to the Fund the results of
such inspections, indicating any shortages or discrepancies uncovered thereby,
and take appropriate action to remedy any such shortages or discrepancies.
B. Use of a System for the Central Handling of Securities. To use
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the facilities of Depository Trust Company, Federal Reserve Book-Entry System or
any other book-entry system for the central handling of securities (hereinafter
called a "central securities system" or "such system"), with which securities
are authorized to be deposited under the provisions of Section 17(f) of the
Investment Company Act of 1940, as from time to time amended, subject to such
rules, regulations and orders as may be adopted by t Securities and Exchange
Commission thereunder. Without limiting the generality of such use it is agreed
that the following provisvisions, shall, subject to such rules, regulations and
orders, apply thereto:
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1) Such system may be used to hold, receive, exchange, release, deliver
and otherwise deal with the securities owned by the Fund, including stock
dividends, rights and other items of like nature, and to receive and remit to
State Street all income and other payments thereon and to take all steps
necessary and proper in connection with the collection thereof.
2) Registration of the Fund's securities may be made in the name of any
nominee or nominees used by such system.
3) Payment for securities purchased and sold may be made through the
clearing medium employed by such system for transactions of participants acting
through it.
4) Securities and any cash of the Fund deposited in such system, will at all
times be segregated from any assets and cash controlled by State Street in other
than a fiduciary or custodian capacity but may be corningled with other assets
held in such capacities. State Street will pay out money only upon the receipt
of securities and will deliver securities only upon the receipt of money.
5) All books and records maintained by State Street which relate to the
Fund's participation in these systems will. at all times during State Street's
regular business hours be open to inspection by the Fund's duly authorized
employees or agents, and the Fund will, be furnished with all the information in
respect of the services rendered to it as it may require.
0) Xxxxx Xxxxxx will make available to the Fund copies of any internal
control reports concerning such system made to,
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it by either internal or external auditors within ten days after receipt of such
a report by State Street.
C. Registered Name, Nominee. To register securities of the Fund held
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by State Street in the name of the Fund or of any nominee of the Fund or in the
name of State Street or of any nominee of State Street or in the name of any
agent or any nominee of such agent pursuant to Paragraph 6-C of Section II
hereof or in the name of any Sub-Custodian or any nominee of any such Sub-
Custodian appointed pursuant to Paragraph 6-D of Section II hereof.
D. Purchases. Upon receipt of proper instructions, and insofar as
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cash is available for the purpose, to pay for and receive all securities
purchased for the account of the Fund, payment being made only upon receipt of
the securities by State Street (or any bank, banking firm, responsible com-
mercial agent or trust company doing business in the United States and/or any
foreign country and appointed by State Street pursuant to Paragraph 6-C of
Section II hereof as State Street's agent for this puroose or appointed as Sub-
Custodian pursuant to Paragraph 6-D of Section II hereof), registered as
provided in Paragraph 3-C of Section 11 hereof or in form for transfer
satisfactory to State Street, or in the case of repurchase agreements entered
into between the Fund and a bank located in Boston, delivery of the receipt
evidencing purchase by the Fund of securities owned by State
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Street or such other bank along with written evidence of the agreement by State
Street or other bank to repurchase such securities from the Fund, provided,
however,, that in the case of repurchase agreements extending not more than
seven days entered into between the Fund and bank not located in Boston, State
Street is specifically authorized to treat such bank as though State Street had
appointed it as agent pursuant to Paragraph 6-C of Section II hereof for the
limited purpose of receiving and holding documents evidencing such repurchase
agreements and evidencing the segregation on the books and records of the bank
of the specific securities purchased under or collateralizing such repurchase
agreement and State Street shall not be liable for failure of such bank to
fulfill any representations that it has effected such segregation, provided,
further, however, that State Street and the Fund agree to use their best efforts
to insure receipt by State Street of copies of such documentation for each such
transaction as promptly as possible. All securities accepted by State Street
shall be accompanied by payment of, or a "due xxxx" for, any dividends, interest
or other distributions of the issuer, due the purchaser. Except as otherwise
provided with respect to repurchase agreements in this Paragraph 3-D of Section
II hereof, in any and every case of a purchase of securities for the account of
the Fund where payment is made by State Street in advance of receipt of the
securities
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purchased, State Street shall be absolutely liable to the Fund for such
securities to the same extent as if the securities had been received by State
Street.
E. Exchanges. Upon receipt of proper instructions, to exchange
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securities or interim receipts or temporary securities held by it or by any
agent appointed by it pursuant to Paragraph 6-C of Section II hereof or any Sub-
Custodian appointed pursuant to Paragraph 6-D of Section II hereof for the
account of the Fund for other securities alone or for other securities and cash,
and to expend cash insofar as cash is available, in connection with any merger,
consolidation, reorganization, recapitalization, split-up of shares, changes of
par value, conversion or in connection with the exercise of warrants,
subscription or purchase rights, or otherwise; to deposit any such securities
and cash in accordance with the terms of any reorganization or protective plan
or otherwise, and to deliver securities to the designated depository or other
receiving agent in response to tender offers or similar offers to purchase
received in writing. Except as instructed by proper instructions received in
timely enough fashion for State Street to act thereon prior to any expiration
date (which shall be presumed to be three business days prior to such date
unless State Street has advised the Fund of a different period) and giving full
details of the time and method of submitting securities in response to any
tender or similar
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offer, exercising any subscription or purchase right or making any exchange
pursuant to this Paragraph and subject to State Street having fulfilled its
obligations under Paragraph 3-L of Section II hereof pertaining to notices or
announcements, State Street shall be under no obligation regarding any tender
or similar offer, subscription or purchase right or exchange except to exercise
its best efforts. When such securities are in the possession of an agent
appointed by State Street pursuant to Paragraph 6-C of Section II hereof, the
proper instructions referred to in the preceding sentence must be received by
State Street in timely enough fashion (which shall be presumed to be four
business days unless State Street has advised the Fund of a different period)
for State Street to notify the agent in sufficient time to permit such agent to
act prior to any expiration date. When the securities are in the possession of a
Sub-Custodian appointed pursuant to Paragraph 6-D of Section II hereof, the
proper instructions must be received by the Sub-Custodian in timely enough
fashion as advised to the Fund by State Street or the Sub-Custodian to permit
the Sub-Custodian to act prior to any expiration date.
F. Sales. Upon receipt of proper instructions and upon receipt of
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payment therefor to make delivery of securities which have been sold for the
account of the Fund. All such payments are to be made in cash,
by a certified check,
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upon or a treasurer's or cashier's check of a bank, by effective bank wire
transfer through the Federal Reserve Wire System or, if appropriate, outside of
the Federal Reserve Wire System and subsequent credit to the Fund's Custodian
account, or, in case of delivery through a stock clearing company, by book-entry
credit by the stock clearing company in accordance with the then current street
custom.
G. Purchases by Issuer. Upon receipt of proper instructions to
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release and deliver securities owned by the Fund to the Issuer thereof or its
agent when such securities are called, redeemed, retired or otherwise become
payable; provided that, in any such case, the cash or other consideration is to
be delivered to State Street.
H. Changes of Name and Denomination. Upon receipt of proper
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instructions to release and deliver securities owned by the Fund to the Issuer
thereof or its agent for transfer into the name of the Fund or State Street or
nominee of either, or for exchange for a different number of bonds,
certificates, or other evidence representing the same aggregate face amount or
number of units bearing the same interest rate, maturity date and call
provisions, if any; provided that, in any such case, the new securities are to
be delivered to State Street.
I. Street Delivery. Upon receipt of proper instructions, which in
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the case of registered securities may be standing instructions, to release and
deliver securities owned by the
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Fund to the broker selling the same for examination in accordance with the then
current "street delivery" custom.
J. Release of Securities for Use as Collateral. Upon receipt of
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proper instructions, to release securities belonging to the Fund to any bank or
trust company for the purpose of pledge or hypothecation to secure any loan
incurred by the Fund; provided, however, that securities shall be released only
upon payment to State Street of the monies borrowed, except that in cases where
additional collateral is required to secure a borrowing already made, subject to
proper prior authorization, further securities may be released for that purpose.
Upon receipt of proper instructions, to pay such loan upon redelivery to it of
the securities pledged or hypothecated therefor and upon surrender of the note
or notes evidencing the loan.
K. Release or Delivery of Securities for Other Purposes. Upon
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receipt of proper instructions, to release or deliver any securities held by it
for the account of the Fund for any other purpose (in addition to those
specified in Xxxxxxxxxx 0-X, 0-X, 0-X, 0-X, 3-I and 3-J of Section II hereof)
which the Fund declares is a proper corporate purpose pursuant to the proper
instructions described in Paragraph 5-A of Section II hereof.
L. Proxies, Notices, Etc. Promptly to deliver or mail to the Fund
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all forms of proxies and all notices of meetings and any other notices or
announcements affecting or relating to the securities, and upon receipt of
proper instructions to
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execute and deliver or cause its nominee to execute and deliver such proxies or
other authorizations as may be required. Neither the Custodian nor its nominee
shall vote upon any of the securities or execute any proxy to vote thereon or
give any consent or take any other action with respect thereto (except as
otherwise herein provided) unless ordered to do so by proper instructions.
M. Miscellaneous. In general, to attend to all nondiscretionary
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details in connection with the sale, exchange, substitution, purchase, transfer
or other dealing with such securities or property of the Fund except as
otherwise from time to time directed by proper instructions. State Street shall
render to the Fund an itemized statement of the securities for which it is
accountable to the Fund under this Agreement as of the end of each month, as
well as a list of all security transactions that remain unsettled at such time.
4. As Custodian, State Street shall have and perform the following
additional powers and duties:
A. Bank Account. To retain all cash, other than cash maintained by
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the Fund in a bank account established and used in accordance with Rule 17f-3
under the Investment Company Act of 1940, of the Fund in the banking department
of State Street in a separate account or accounts in the name of the Fund,
subject only to draft or order by State Street acting pursuant to the terms of
this Agreement. If and when authorized
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by proper instructions in accordance with a vote of the majority of the Board of
Directors of the Fund, State Street may open and maintain an additional account
or accounts in such other bank or trust companies as may be designated by such
instructions,, such account or accounts, however, to be in the name of State
Street in its capacity as Custodian and subject only to its draft or order in
accordance with the terms of this Agreement. If requested by the Fund, State
Street shall furnish the Fund, not later than twenty (20) calendar days after
the last business day of each month, a statement reflecting the current status
of its internal reconciliation of the closing balance as of that day in all
accounts described in this Paragraph to the balance shown on the daily cash
report for that day rendered to the Fund.
B. Collections. Unless otherwise instructed by receipt of proper
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instructions, to collect, receive and deposit in the bank account or accounts
maintained pursuant to Paragraph 4-A of Section II hereof all income and other
payments with respect to the securities held hereunder, and to execute ownership
and other certificates and affidavits for all Federal and State tax purposes in
connection with the collection of bond and note coupons, and to do all other
things necessary or proper in connection with the collection of such income, and
without waiving the generality of the foregoing, to:
(1) present for payment on the date of payment
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all coupons and other income items requiring presentation;
(2) present for payment all securities which may mature or be
called, redeemed, retired or otherwise become payable on the
date such securities become payable;
(3) endorse and deposit for collection, in the name of the Fund,
checks, drafts or other negotiable instruments on the same
day as received.
In any case in which State Street does not receive any such due and unpaid
income within a reasonable time after it has made proper demands for the same
(which shall be presumed to consist of at least three demand letters and at
least one telephonic demand), it shall so notify the Fund in writing, including
copies of all demand letters, any written responses thereto, and memoranda of
all oral responses thereto and to telephonic demands, and await proper
instruction; the Custodian shall not be obliged to take legal action for
collection unless and until reasonably indemnified to its satisfaction. It shall
also notify the Fund as soon as reasonably practicable whenever income due on
securities is not collected in due course.
C. Sale of Shares of the Fund. To receive from the Transfer Agent of
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the Fund, cash consideration due the Fund, as certified by the Transfer Agent,
for such shares of
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the Fund as may be issued or sold from time to time by the Fund.
D. Dividends and Distributions. Upon receipt of proper instructions
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to release or otherwise apply cash insofar as available, for the payment of
dividends or other distributions to stockholders of the Fund.
E. Stock Dividends, Rights, Etc. To receive and collect all stock
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dividends, rights and other items of like nature; and to deal with the same
pursuant to proper instructions relative thereto.
F. Redemption of Shares of the Fund. From such funds as may be
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available for the purpose but subject to the limitations of Section of the
Fund's By-Laws, and applicable resolutions of the Board of Directors of the Fund
pursuant thereto, to make available to the Transfer Agent, funds which it
certifies are necessary to make payment to shareholders who have delivered to
the Transfer Agent a request for redemption of their shares by the Fund pursuant
to said Section.
G. Disbursements. Upon receipt of proper instructions, to make or
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cause to be made, insofar as cash is available for the purpose, disbursements
for the payment on behalf of the Fund of interest, taxes, management or
supervisory fees and operating expenses, including registration and
qualification costs and other expenses of issuing and selling shares or changing
its capital structure,
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whether or not such expenses shall be in whole or in part capitalized or treated
as deferred expenses.
H. Other Prover Corporate Purposes. upon receipt of proper
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instructions, to make or cause to be made, insofar as cash is available,
disbursements for any other purpose (in addition to the purposes specified in
Paragraphs 3-D, 3-B, 4-D, 4-F and 4-G of this Agreement) which the Fund declares
is a proper corporate purpose pursuant to the proper instructions described in
Paragraph 5-A below.
I. Records. To create, maintain and retain all records relating to
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its activities and obligations under this Agreement in such manner as will meet
the obligations of the Fund under the Investment Company Act of 1940,
particularly Section 31 thereof and Rules 31a-1 and 31a-2 thereunder, applicable
Federal and State tax laws and any other law or administrative rules or
procedures which may be applicable to the Fund. All records maintained by the
Bank in connection with the performance of its duties under this Agreement will
remain the property of the Fund and in the event of termination of this
Agreement will be delivered in accordance with the terms of Paragraph 8 below.
J. Accounts. To keep books of account and render statements,
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including interim monthly and complete quarterly financial statements, or copies
thereof from time to time as requested by the Treasurer or any Executive Officer
of the
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Fund.
K. Appraisals. Unless otherwise directed by receipt of proper
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instructions, to compute and determine, as of the close of business of the New
York Stock Exchange, the sonet asset value" of a share in the Fund, such
computation and determination to be made pursuant to the provisions of Section
of the By-Laws of the Fund, by a vice president, assistant vice president or
assistant secretary of the Custodian; and promptly to notify the Fund of the
result of such commutation and determination. In computing the "net asset value"
State Street shall rely upon security quotations received by telephone or
otherwise from sources designated by the Fund by proper instruction and may
further rely upon information furnished to it by any officer of the Fund
thereunto duly authorized relative (a) to liabilities of the Fund not appearing
on its books of account, (b) to the existence, status and proper treatment of
any reserve or reserves and (c) to the fair value of any security or other
property for which market quotations are not readily available.
L. Miscellaneous. To assist generally in the preparation of
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routine reports to holders of shares of the Fund, to the Securities and Exchange
Commission, including forms N-lR and N-lQ, to State "Blue Sky" authorities and
to others, i.n the auditing of accounts, and in other matters of like nature.
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5. A. Proper Instructions. State Street shall be deemed to have received
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proper instructions upon receipt of written instructions signed by a majority of
the Board of Directors of the Fund or by one or more person or persons as the
Board of Directors shall have from time to time authorized to give the
particular class of instructions in question. Different persons may be
authorized to give instructions for different purposes. A certified copy of a
resolution or action of the Board of Directors of the Fund may be received and
accepted by State Street as conclusive evidence of the authority of any such
person or persons to act and may be considered as in full force and effect until
receipt of written notice to the contrary. Such instructions may be general or
specific in terms.
B. Investments, Limitations. In performing its duties generally, and more
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particularly in connection with the purchase, sale and exchange of securities
made by or for the Fund, State Street may take cognizance of the provisions of
the Articles of Incorporation of the Fund as from time to time amended; however,
except as otherwise expressly provided herein, it may assume unless and until
notified in writing to the contrary that instructions purporting to be proper
instructions received by it are not in conflict with or in any way contrary to
any provision of the Articles of Incorporation and By-Laws of the Fund as
amended, or resolutions or proceedings of the
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Directors of the Fund.
6. State Street and the Fund further agree as follows:
A. Indemnification. State Street, as Depository and Custodian, shall be
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entitled to receive and act upon advice of counsel (who may be counsel for the
Fund) and shall be without liability for any action reasonably taken or thing
reasonably done pursuant to such advice, provided that such action is not in
violation of applicable Federal or State laws or regulations, and shall be kept
indemnified by the Fund and be without liability for any action taken or thing
done by it in carrying out the terms and provisions of this Agreement in good
faith and without negligence. In order that the indermification provision
contained in this Paragraph 6-A of Section II shall apply, however, it is
understood that if in any case the Fund may be asked to indemnify or save State
Street harmless, the Fund shall be fully and promptly advised of all pertinent
facts concerning the situation in question, and it is further understood that
State Street will use all reasonable care to identify and notify the Fund
promptly concerning any situation which presents or appears likely to present
the probability of such a claim for indemnification against the Fund. The Fund
shall have the option to defend State Street against any claim which may be the
subject of this indemnification, and in the event that the Fund so elects it
will so notify State Street, and thereupon the Fund shall
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take over complete defense of the claim, and State Street Bank shall in such
situations initiate no further legal or other expenses for which it shall seek
indemnification under this Paragraph 6-A of Section II. State Street shall in no
case confess any claim or make any compromise in any case in which the Fund will
be asked to indemnify State Street except with the Fund's prior written consent.
B. Expense Reimbursement. State Street shall be entitled to receive
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from the Fund on demand reimbursement for its cash disbursements, expenses and
charges in connection with its duties as Depository and Custodian as aforesaid,
but excluding salaries and usual overhead expenses.
C. Appointment of Agents. State Street, as Custodian, may at any
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time or times appoint (and nay at any time remove) any other bank, trust company
or responsible commercial agent as its agent to carry out such of the provisions
of this Agreement as State Street may from time to time direct, provided,
however, that the appointment of such agent shall not relieve State Street of
any of its responsibilities under this Agreement, except that with respect to
repurchase agreements entered into with banks located outside of Boston, the
responsibility of State Street shall be governed by the provisions of Paragraph
3-D Of Section II hereof and shall be no greater than its responsibility or
liability to the Fund with respect to a Sub-Custodian.
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D. Appointment of Sub-Custodian. State Street, as the Custodian, may
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from time to time employ one or more Sub-Custodians, but only in accordance with
the !terms and conditions set forth in the Fund's By-Laws and provided that
State Street shall have no more responsibility or liability to the Fund on
account of any actions or omissions of any Sub-Custodian so employed, than any
such Sub-Custodian has to State Street.
E. Reliance on Documents. So long as and to the extent that it is in
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the exercise of reasonable care, State Street, as Depository and Custodian,
shall not be responsible for the title, validity or genuineness of any property
or evidence of title thereto received by it or delivered by it pursuant to this
Agreement, and shall be protected in acting upon any instructions, notice,
request, consent, certificate or other instrument or paper reasonably believed
by it to be genuine and to have been properly executed in accordance with
Paragraph 5-A of Section II hereof and shall, except as otherwise specifically
provided in this Agreement, be entitled to receive as conclusive proof of any
fact or matter required to be ascertained by it hereunder a certificate signed
by any Director or the Secretary of the Fund or any other person authorized by
the Directors.
F. Access to Records. Subject to security requirements of State
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Street applicable to its own employees having
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access to similar records within State Street and such regulations as to the
conduct of such monitors as may be reasonably imposed by State Street after
prior consultation with an officer of the Fund, the books and records of State
Street pertaining to its actions under this Agreement shall be open to
inspection and audit at reasonable times by the Board of Directors of, attorneys
for, and auditors employed by, the Fund.
G. Record-Keeping. State Street shall maintain such records as will
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enable the Fund to comply with the requirements of all Federal and State Laws
and regulations applicable to the Fund with respect to the matters covered by
this Agreement, including but not limited to the requirements of Section 2.30
of Form X-xX.
0. The Fund shall pay to State Street as Depository and Custodian, the
compensation set forth on Exhibit A hereto until a different compensation
schedule shall be agreed upon in writing between the parties.
8. State Street and the Fund further agree as follows:
A. Effective Period, Termination and Amendment, and Interpretive
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and Additional Provisions. This Agreement shall become effective as of the date
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of its execution, shall continue in full force and effect until terminated as
herein-after provided, may be amended at any time by mutual agreement of the
parties hereto and may be terminated by either party by an instrument in writing
delivered or mailed, postage pre-
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paid, to the other party, such termination to take effect not sooner than sixty
(60) days after the date of such delivery or mailing; provided, however, that
the Fund shall not amend or terminate this Agreement in contravention of any
applicable Federal or State laws or regulations, or any provision of the Fund's
Articles of Incorporation or By-Laws as the same may from time to time be
amended, and further provided, that the Fund may at any time by action of its
Board of Directors substitute another bank or trust company for State Street
by giving notice as above to State Street.
In connection with the operation of this Agreement, State Street and
the Fund may agree from time to time on such provisions interpretive of or in
addition to the provisions of this Agreement as may in their joint opinion be
consistent with the general tenor of this Agreement, any such interpretive or
additional provisions to be signed by both parties and annexed hereto, provided
that no such interpretive or additional provisions shall contravene any
applicable Federal or State laws or regulations, or any provision of the Fund's
Articles of Incorporation or By-Laws as the same may from time to time be
amended. No interpretive or additional provisions made as .provided in the
preceding sentence shall be deemed to be an amendment of this Agreement.
B. Successor Custodian. Upon termination hereof the Fund shall pay
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to State Street such compensation as may
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be due as of the date of such termination and shall likewise reimburse State
Street for its costs, expenses and disbursements, reimburse State Street for its
costs, expenses, and disbursements incurred prior to such termination in
accordance with Section 6-B of Section II hereof and such reasonable costs,-
expenses and disbursements as may be incurred by State Street in connection
with such termination.
If a successor custodian is appointed by the Board of Directors of
the Fund in accordance with the By-Laws, State Street shall, upon termination,
deliver to such successor custodian at the office of State Street, duly endorsed
and in form for transfer, all securities then held hereunder and all funds or
other properties of the Fund deposited with or held by it hereunder.
If no such successor custodian is appointed, State Street shall, in
like manner at its office, upon receipt of a certified copy of a resolution of
the shareholders pursuant to the By-Laws, deliver such securities, funds and
other properties in accordance with such resolution.
In the event that no written order designating a successor custodian
or certified copy of a resolution of the shareholders shall have been delivered
to State Street on or before the date when such termination shall become
effective, then State Street shall have the right to deliver to a bank or trust
company doing business in Boston, Massachusetts, of its own selection, having an
aggregate capital, surplus, and
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undivided profits, as shown by its last published report of not less than
$2,000,000, all securities, funds, and other properties held by State Street and
all instruments held by State Street and all instruments held by it relative
thereto and all other property held by it under this Agreement. Thereafter, such
bank or trust company shall be the successor of State Street under this
Agreement.
In the event that securities, funds, and other properties remain in
the possession of State Street after the date of termination hereof owing to
failure of the Fund to procure the certified copy above referred to, or of the
Board of Directors to appoint a successor custodian, State Street. shall be
entitled to fair compensation for its services during such period and the
provisions of this Agreement relating to the duties and obligations of State
Street shall remain in full force and effect.
9. The Fund shall not circulate any printed matter which contains any
reference to State Street without the prior written approval of State Street,
excepting solely such printed matter as merely identifies State Street as
Depository or Custodian. The Fund will submit printed matter requiring approval
to State Street in draft form, allowing sufficient time for review by State
Street and its counsel prior to any deadline for printing.
10. This instrument is executed and delivered in the Commonwealth of
Massachusetts and shall be subject to and be con-
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strued according to the laws of said Commonwealth.
11. Notices and other writings delivered or mailed postage prepaid to the
Fund at 0 Xxxxxxx Xxxxx, 000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000 or to State
Street at 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, 00000 or to such other
address as the Fund or State Street may hereafter specify, shall be deemed to
have been properly delivered or given hereunder to the respective address.
12. It is understood and is expressly stipulated that neither the holders of
shares in the Fund nor the Directors of the Fund shall be personally liable
hereunder.
13. This Agreement shall be binding on and shall inure to the benefit of the
Fund and State Street and their respective successors.
14. This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed in its name and on its behalf by a duly authorized officer as of the
day and year first above written.
ATTEST: XXXXXXX XXXXX HIGH INCOME FUND, INC.
/s/ Xxxxxxx X. X. Xxxxxx /s/
------------------------- -------------------------------------------
ATTEST: STATE STREET BANK AND TRUST COMPANY
/s/ /s/
------------------------- -------------------------------------------
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