Exhibit (g)(7)
AMENDMENT TO AMENDED AND RESTATED CUSTODIAN AGREEMENT
This Amendment to the Amended and Restated Custodian Agreement is made as
of August 3, 2000 by and between New England Zenith Fund (the "Fund") and State
Street Bank and Trust Company (the "Custodian"). Capitalized terms used in this
Amendment without definition shall have the respective meanings given to such
terms in the Amended and Restated Custodian Agreement referred to below.
WHEREAS, the Fund, New England Mutual Life Insurance Company ("The New
England") and the Custodian entered into an Amended and Restated Custodian
Agreement dated as of September 22, 1992 (as amended and in effect from time to
time, the "Agreement"); and
WHEREAS, the Agreement was amended as of November 17, 1999 to remove
Metropolitan Life Insurance Company ("MetLife"), the surviving company of a
merger of The New England and MetLife, and to have the Fund assume all rights
and obligations of MetLife under the Custodian Agreement, and for other
purposes; and
WHEREAS, the Fund is authorized to issue shares in separate series, with
each such series representing interests in a separate portfolio of securities
and other assets, and the Fund has made the series listed on Schedule D hereto
subject to the Agreement (each such series, together with all other series
subsequently established by the Fund and made subject to the Agreement in
accordance with the terms thereof, shall be referred to as a "Series", and,
collectively, the "Series"); and
WHEREAS, the Fund and the Custodian desire to amend certain provisions of
the Agreement to reflect revisions to Rule 17f-5 ("Rule 17f-5") and the adoption
of Rule 17f-7 ("Rule 17f-7") promulgated under the Investment Company Act of
1940, as amended (the "1940 Act"); and
WHEREAS, the Fund and the Custodian desire to amend and restate certain
other provisions of the Agreement relating to the custody of assets of each of
the Portfolios held outside of the United States.
NOW THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements hereinafter contained, the parties hereby agree to amend the
Agreement, pursuant to the terms thereof, as follows:
I. Sections II.7.A through 7.I and Sections II.8.A through 8.M of the
Agreement as amended as of November 17, 1999, are hereby deleted and
replaced with new Sections II.7.A through 7.J and Sections II.8.A
through 8.M, as of the effective date of this Amendment, as set forth
below.
7. THE CUSTODIAN AS FOREIGN CUSTODY MANAGER.
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7.A. DEFINITIONS.
-----------
Capitalized terms in this Section 7 of Article II shall have the following
meanings:
"Country Risk" means all factors reasonably related to the systemic risk of
holding Foreign Assets in a particular country including, but not limited to,
such country's political environment; economic and financial infrastructure
(including any Eligible Securities Depository operating in the country);
prevailing or developing settlement practices; and laws and regulations
applicable to the safekeeping and recovery of Foreign Assets held in custody in
that country.
"Eligible Foreign Custodian" has the meaning set forth in section (a)(1) of Rule
17f-5, including a majority-owned or indirect subsidiary of a U.S. Bank (as
defined in Rule 17f-5), a bank holding company meeting the requirements of an
Eligible Foreign Custodian (as set forth in Rule 17f-5 or by other appropriate
action of the U.S. Securities and Exchange Commission (the "SEC")), or a foreign
branch of a Bank (as defined in Section 2(a)(5) of the 0000 Xxx) meeting the
requirements of a custodian under Section 17(f) of the 1940 Act.
"Eligible Securities Depository" has the meaning set forth in Section (b)(1) of
Rule 17f-7.
"Foreign Assets" means any of the Portfolios' investments (including foreign
currencies) for which the primary market is outside the United States and such
cash and cash equivalents as are reasonably necessary to effect the Series'
transactions in such investments.
"Foreign Custody Manager" has the meaning set forth in section (a)(2) of Rule
17f-5.
7.B. DELEGATION TO THE CUSTODIAN AS FOREIGN CUSTODY MANAGER.
------------------------------------------------------
The Fund, by resolution adopted by its Board of Trustees (the "Board"), hereby
delegates to the Custodian, with respect to the Portfolios, pursuant to Section
(b) of Rule 17f-5, the responsibilities set forth in this Section 7 of Article
II with respect to Foreign Assets of the Series held outside the United States,
and the Custodian hereby accepts such delegation, as Foreign Custody Manager
with respect to the Series.
7.C. COUNTRIES COVERED.
-----------------
The Foreign Custody Manager shall be responsible for performing the delegated
responsibilities defined below only with respect to the countries and custody
arrangements for each such country listed on Schedule A to this Agreement, which
list of countries may be amended from time to time by the Fund with the
agreement of the Foreign Custody
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Manager. The Foreign Custody Manager shall list on Schedule A the Eligible
Foreign Custodians selected by the Foreign Custody Manager to maintain the
assets of the Series which list of Eligible Foreign Custodians may be amended
from time to time in the sole discretion of the Foreign Custody Manager. The
Foreign Custody Manager will provide amended versions of Schedule A in
accordance with Section 7.G of this Article II.
Upon the receipt by the Foreign Custody Manager of Proper Instructions to open
an account or to place or maintain Foreign Assets in a country listed on
Schedule A, and the fulfillment by the Fund on behalf of the Series of the
applicable account opening requirements for such country, the Foreign Custody
Manager shall be deemed to have been delegated by the Board on behalf of the
Series responsibility as Foreign Custody Manager with respect to that country
and to have accepted such delegation. Execution of this Amendment by the Fund
shall be deemed to be a Proper Instruction to open an account, or to place or
maintain Foreign Assets, in each country listed on Schedule A in which the
Custodian has previously placed or currently maintains Foreign Assets pursuant
to the terms of the Agreement. Following the receipt of Proper Instructions
directing the Foreign Custody Manager to close the account of a Portfolio with
the Eligible Foreign Custodian selected by the Foreign Custody Manager in a
designated country, the delegation by the Board on behalf of the Series to the
Custodian as Foreign Custody Manager for that country shall be deemed to have
been withdrawn and the Custodian shall immediately cease to be the Foreign
Custody Manager of the Series with respect to that country.
The Foreign Custody Manager may withdraw its acceptance of delegated
responsibilities with respect to a designated country upon written notice to the
Fund. Sixty days (or such longer period as to which the parties agree in
writing) after receipt of any such notice by the Fund, the Custodian shall have
no further responsibility as Foreign Custody Manager to the Fund with respect to
the country as to which the Custodian's acceptance of delegation is withdrawn.
7.D. SCOPE OF DELEGATED RESPONSIBILITIES.
-----------------------------------
7.D.1. SELECTION OF ELIGIBLE FOREIGN CUSTODIANS.
----------------------------------------
Subject to the provisions of this Section 7 of Article II, the Portfolio's
Foreign Custody Manager may place and maintain the Foreign Assets in the care of
the Eligible Foreign Custodian selected by the Foreign Custody Manager in each
country listed on Schedule A, as amended from time to time.
In performing its delegated responsibilities as Foreign Custody Manager to place
or maintain Foreign Assets with an Eligible Foreign Custodian, the Foreign
Custody Manager shall determine that the Foreign Assets will be subject to
reasonable care, based on the standards applicable to custodians in the country
in which the Foreign Assets will be held by that Eligible Foreign Custodian,
after considering all factors relevant to the safekeeping of such assets,
including, without limitation the factors specified in Rule 17f-5(c)(1), as
amended from time to time.
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7.D.2. CONTRACTS WITH ELIGIBLE FOREIGN CUSTODIANS.
------------------------------------------
The Foreign Custody Manager shall determine that the contract governing the
foreign custody arrangements with each Eligible Foreign Custodian selected by
the Foreign Custody Manager satisfies the requirements of Rule 17f-5(c)(2), as
amended from time to time.
7.D.3. MONITORING.
----------
In each case in which the Foreign Custody Manager maintains Foreign Assets with
an Eligible Foreign Custodian selected by the Foreign Custody Manager, the
Foreign Custody Manager shall establish a system to monitor (i) the
appropriateness of maintaining the Foreign Assets with such Eligible Foreign
Custodian and (ii) the contract governing the custody arrangements established
by the Foreign Custody Manager with the Eligible Foreign Custodian. In the event
the Foreign Custody Manager determines that the custody arrangements with an
Eligible Foreign Custodian it has selected are no longer appropriate, the
Foreign Custody Manager shall notify the Board in accordance with Section 7.G of
Article II hereunder and assist the Series in withdrawing their assets from such
Eligible Foreign Custodian as soon as reasonably practicable.
7.E. GUIDELINES FOR THE EXERCISE OF DELEGATED AUTHORITY.
--------------------------------------------------
For purposes of this Section 7 of Article II, the Fund and the Board shall be
deemed to have considered and determined to accept such Country Risk as is
incurred by placing and maintaining the Foreign Assets in each country for which
the Custodian is serving as Foreign Custody Manager of the Series.
7.F. STANDARD OF CARE AS FOREIGN CUSTODY MANAGER OF A PORTFOLIO.
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In performing the responsibilities delegated to it, the Foreign Custody Manager
agrees to exercise reasonable care, prudence and diligence such as a person
having responsibility for the safekeeping of assets of management investment
companies registered under the 1940 Act would exercise.
7.G. REPORTING REQUIREMENTS.
----------------------
7.G.1 The Foreign Custody Manager shall report the withdrawal of the
Foreign Assets from an Eligible Foreign Custodian and the placement of such
Foreign Assets with another Eligible Foreign Custodian by providing to the Board
an amended Schedule A at the end of the calendar quarter in which an amendment
to such Schedule has occurred. The Foreign Custody Manager shall make written
reports notifying the Board of any other material change in the foreign custody
arrangements of the Series described in this Section 7 of Article II promptly
after the occurrence of the material change.
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7.G.2 The Foreign Custody Manager shall deliver the written reports
required by Section 7.G.1 of Article II to the following address, and to such
other address as the Fund shall from time to time reasonably request:
Board of Trustees
New England Zenith Fund
c/o New England Financial
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxx
7.H. REPRESENTATIONS WITH RESPECT TO RULE 17F-5.
------------------------------------------
The Foreign Custody Manager represents to the Fund that it is a U.S. Bank as
defined in section (a)(7) of Rule 17f-5.
The Fund represents to the Custodian that the Board has determined that it is
reasonable for the Board to rely on the Custodian to perform the
responsibilities delegated pursuant to this Agreement to the Custodian as the
Foreign Custody Manager of the Series.
7.I. EFFECTIVE DATE AND TERMINATION OF THE CUSTODIAN AS FOREIGN CUSTODY
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Manager.
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The Board's delegation to the Custodian as Foreign Custody Manager of the Series
shall be effective as of the date hereof and shall remain in effect until
terminated at any time, without penalty, by written notice from the terminating
party to the non-terminating party or upon termination of the Agreement in
accordance with its terms, if earlier. Termination will become effective sixty
(60) days after receipt by the non-terminating party of such notice. The
provisions of Section 7.C of Article II hereof shall govern the delegation to
and termination of the Custodian as Foreign Custody Manager of the Series with
respect to designated countries.
7.J. ELIGIBLE SECURITIES DEPOSITORIES.
--------------------------------
7.J.1 ANALYSIS AND MONITORING. The Custodian shall (a) provide the Fund
-----------------------
(or its duly-authorized investment managers or investment advisers, as
instructed from time to time by the Fund) with an analysis of the custody risks
associated with maintaining assets with the Eligible Securities Depositories set
forth on Schedule B hereto in accordance with section (a)(1)(i)(A) of Rule 17f-7
and (b) monitor such risks on a continuing basis, and promptly notify the Fund
(or its duly-authorized investment managers or investment advisers, as
instructed from time to time by the Fund) of any material change in such risks,
in accordance with section (a)(1)(i)(B) of Rule 17f-7.
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7.J.2 STANDARD OF CARE. The Custodian agrees to exercise reasonable care,
----------------
prudence and diligence in performing the duties set forth in Section 7.J.1.
II.8. DUTIES OF THE CUSTODIAN WITH RESPECT TO PROPERTY OF THE SERIES HELD
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OUTSIDE THE UNITED STATES.
-------------------------
8.A DEFINITIONS.
-----------
Capitalized terms in this Section 8 of Article II shall have the following
meanings:
"Foreign Securities System" means an Eligible Securities Depository listed on
Schedule B hereto.
"Foreign Sub-Custodian" means a foreign banking institution serving as an
Eligible Foreign Custodian.
8.B. HOLDING SECURITIES.
------------------
The Custodian shall identify on its books as belonging to each Series the
respective foreign securities held by each Foreign Sub-Custodian or Foreign
Securities System. The Custodian may hold foreign securities for all of its
customers, including the Series, with any Foreign Sub-Custodian in an account
that is identified as belonging to the Custodian for the benefit of its
customers, provided however, that (i) the records of the Custodian with respect
----------------
to foreign securities of each Series which are maintained in such account shall
identify those securities as belonging to such Series and (ii), to the extent
permitted and customary in the market in which the account is maintained, the
Custodian shall require that securities so held by the Foreign Sub-Custodian be
held separately from any assets of such Foreign Sub-Custodian or of other
customers of such Foreign Sub-Custodian.
8.C. FOREIGN SECURITIES SYSTEMS.
--------------------------
Foreign securities shall be maintained in a Foreign Securities System in a
designated country only through arrangements implemented by the Foreign
Sub-Custodian in such country pursuant to the terms of this Agreement.
8.D. TRANSACTIONS IN FOREIGN CUSTODY ACCOUNT.
---------------------------------------
8.D.1. DELIVERY OF FOREIGN ASSETS.
--------------------------
The Custodian or a Foreign Sub-Custodian shall release and deliver foreign
securities of a Portfolio held by such Foreign Sub-Custodian, or in a Foreign
Securities System account, only upon receipt of Proper Instructions, which may
be continuing instructions when deemed appropriate by the parties, and only in
the following cases:
6
(i) upon the sale of such foreign securities for the Portfolio in
accordance with commercially reasonable market practice in the
country where such foreign securities are held or traded,
including, without limitation: (A) delivery against expectation of
receiving later payment; or (B) in the case of a sale effected
through a Foreign Securities System, in accordance with the rules
governing the operation of the Foreign Securities System;
(ii) in connection with any repurchase agreement related to foreign
securities;
(iii) to the depository agent in connection with tender or other similar
offers for foreign securities of the Portfolio;
(iv) to the issuer thereof or its agent when such foreign securities are
called, redeemed, retired or otherwise become payable;
(v) to the issuer thereof, or its agent, for transfer into the name of
the Custodian (or the name of the respective Foreign Sub-Custodian
or of any nominee of the Custodian or such Foreign Sub-Custodian)
or for exchange for a different number of bonds, certificates or
other evidence representing the same aggregate face amount or
number of units;
(vi) to brokers, clearing banks or other clearing agents for examination
or trade execution in accordance with market custom; provided that
--------
in any such case the Foreign Sub-Custodian shall have no
responsibility or liability for any loss arising from the delivery
of such securities prior to receiving payment for such securities
except as may arise from the Foreign Sub-Custodian's own negligence
or willful misconduct;
(vii) for exchange or conversion pursuant to any plan of merger,
consolidation, recapitalization, reorganization or readjustment of
the securities of the issuer of such securities, or pursuant to
provisions for conversion contained in such securities, or pursuant
to any deposit agreement;
(viii) in the case of warrants, rights or similar foreign securities, the
surrender thereof in the exercise of such warrants, rights or
similar securities or the surrender of interim receipts or
temporary securities for definitive securities;
(ix) for delivery as security in connection with borrowing by a
Portfolio requiring a pledge of assets by such Portfolio;
(x) in connection with trading in options and futures contracts,
including delivery as original margin and variation margin;
(xi) in connection with the lending of foreign securities; and
7
(xii) for any other proper purpose, but only upon receipt of Proper
--- ----
Instructions specifying the foreign securities to be delivered,
setting forth the purpose for which such delivery is to be made,
declaring such purpose to be a proper trust purpose, and naming the
person or persons to whom delivery of such securities shall be
made.
8.D.2. PAYMENT OF PORTFOLIO MONIES.
---------------------------
Upon receipt of Proper Instructions, which may be continuing instructions when
deemed appropriate by the parties, the Custodian shall pay out, or direct the
respective Foreign Sub-Custodian or the respective Foreign Securities System to
pay out, monies of a Portfolio in the following cases only:
(i) upon the purchase of foreign securities for the Portfolio, unless
otherwise directed by Proper Instructions, by (A) delivering money
to the seller thereof or to a dealer therefor (or an agent for such
seller or dealer) against expectation of receiving later delivery
of such foreign securities; or (B) in the case of a purchase
effected through a Foreign Securities System, in accordance with
the rules governing the operation of such Foreign Securities
System;
(ii) in connection with the conversion, exchange or surrender of foreign
securities of the Portfolio;
(iii) for the payment of any expense or liability of the Portfolio,
including but not limited to the following payments: interest,
taxes, investment advisory fees, transfer agency fees, fees under
this Agreement, legal fees, accounting fees, and other operating
expenses;
(iv) for the purchase or sale of foreign exchange or foreign exchange
contracts for the Portfolio, including transactions executed with
or through the Custodian or its Foreign Sub-Custodians;
(v) in connection with trading in options and futures contracts,
including delivery as original margin and variation margin;
(vi) for payment of part or all of the dividends received in respect of
securities sold short;
(vii) in connection with the borrowing or lending of foreign securities;
and
(viii) for any other proper purpose, but only upon receipt of Proper
--- ----
Instructions specifying the amount of such payment, setting forth
the purpose for which such payment is to be made, declaring such
purpose to be a proper trust purpose, and naming the person or
persons to whom such payment is to be made.
8
8.D.3. MARKET CONDITIONS; MARKET INFORMATION.
-------------------------------------
Notwithstanding any provision of this Agreement to the contrary, settlement and
payment for Foreign Assets received for the account of the Series and delivery
of Foreign Assets maintained for the account of the Series may be effected in
accordance with the customary established securities trading or processing
practices and procedures in the country or market in which the transaction
occurs, including, without limitation, delivering Foreign Assets to the
purchaser thereof or to a dealer therefor (or an agent for such purchaser or
dealer) with the expectation of receiving later payment for such Foreign Assets
from such purchaser or dealer.
The Custodian shall provide to the Board the information with respect to custody
and settlement practices in countries in which the Custodian employs a Foreign
Sub-Custodian or a Foreign Securities System, described on Schedule C hereto at
the time or times set forth on such Schedule. The Custodian may revise Schedule
C from time to time, provided that no such revision shall result in the Board
being provided with substantively less information than had been previously
provided hereunder.
8.E. REGISTRATION OF FOREIGN SECURITIES.
----------------------------------
The foreign securities maintained in the custody of a Foreign Sub-Custodian
(other than bearer securities) shall be registered in the name of the applicable
Portfolio or in the name of the Custodian or in the name of any Foreign
Sub-Custodian or in the name of any nominee of the foregoing, and the Fund on
behalf of such Portfolio agrees to hold any such nominee harmless from any
liability as a holder of record of such foreign securities except as such
liability may arise from such nominee's own negligence, misfeasance, bad faith
or willful misconduct. The Custodian or a Foreign Sub-Custodian shall not be
obligated to accept securities on behalf of a Portfolio under the terms of this
Agreement unless the form of such securities and the manner in which they are
delivered are in accordance with reasonable market practice.
8.F. BANK ACCOUNTS.
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The Custodian shall identify on its books as belonging to each Series cash
(including cash denominated in foreign currencies) deposited with the Custodian.
Where the Custodian is unable to maintain, or market practice does not
facilitate the maintenance of, cash on the books of the Custodian, a bank
account or bank accounts opened and maintained outside the United States on
behalf of a Portfolio with a Foreign Sub-Custodian shall be subject only to
draft or order by the Custodian or such Foreign Sub-Custodian, acting pursuant
to the terms of this Agreement to hold cash received by or from or for the
account of the Portfolio.
8.G. COLLECTION OF INCOME.
--------------------
The Custodian shall use reasonable commercial efforts to collect all income and
other payments with respect to the Foreign Assets held hereunder to which the
Series shall be
9
entitled and shall credit such income, as collected, to the applicable
Portfolio. In the event that extraordinary measures are required to collect such
income, the Fund and the Custodian shall consult as to such measures and as to
the compensation and expenses of the Custodian relating to such measures.
8.H. SHAREHOLDER RIGHTS.
------------------
With respect to the foreign securities held pursuant to this Section 8, the
Custodian will use reasonable commercial efforts to facilitate the exercise of
voting and other shareholder rights, subject always to the laws, regulations and
practical constraints that may exist in the country where such securities are
issued. The Fund acknowledges that local conditions, including lack of
regulation, onerous procedural obligations, lack of notice and other factors may
have the effect of severely limiting the ability of the Fund to exercise
shareholder rights.
8.I. COMMUNICATIONS RELATING TO FOREIGN SECURITIES.
---------------------------------------------
The Custodian shall transmit promptly to the Fund written information
(including, without limitation, pendency of calls and maturities of foreign
securities and expirations of rights in connection therewith) received by the
Custodian via the Foreign Sub-Custodians from issuers of the foreign securities
being held for the account of the Series. With respect to tender or exchange
offers, the Custodian shall transmit promptly to the Fund written information so
received by the Custodian from issuers of the foreign securities whose tender or
exchange is sought or from the party (or its agents) making the tender or
exchange offer. Absent the Custodian's failure to observe the standard of care
set forth in Section 6.A of Article II, the Custodian shall not be liable for
any untimely exercise of any tender, exchange or other right or power in
connection with foreign securities or other property of the Series at any time
held by it unless (i) the Custodian or the respective Foreign Sub-Custodian is
in actual possession of such foreign securities or property and (ii) the
Custodian receives Proper Instructions with regard to the exercise of any such
right or power, and both (i) and (ii) occur at least three business days prior
to the date on which the Custodian is to take action to exercise such right or
power.
8.J. LIABILITY OF FOREIGN SUB-CUSTODIANS AND FOREIGN SECURITIES SYSTEMS.
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Each agreement pursuant to which the Custodian employs a Foreign Sub-Custodian
shall, to the extent possible, require the Foreign Sub-Custodian to exercise
reasonable care in the performance of its duties and, to the extent possible, to
indemnify, and hold harmless, the Custodian and the Fund from and against any
loss, damage, cost, expense, liability or claim arising out of or in connection
with the Foreign Sub-Custodian's performance of such obligations. At the Fund's
election, the Fund and the Series shall be entitled to be subrogated to the
rights of the Custodian with respect to any claims against a Foreign
Sub-Custodian as a consequence of any such loss, damage, cost, expense,
liability or claim if and to the extent that the Series have not been made whole
for any such loss, damage, cost, expense, liability or claim.
8.K. TAX LAW.
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The Custodian shall have no responsibility or liability for any obligations now
or hereafter imposed on the Fund, the Series or the Custodian as custodian of
the Series by the tax law of the United States or of any state or political
subdivision thereof. It shall be the responsibility of the Fund to notify the
Custodian of the obligations imposed on the Fund with respect to the Series or
the Custodian as custodian of the Series by the tax law of countries other than
those mentioned in the above sentence, including responsibility for withholding
and other taxes, assessments or other governmental charges, certifications and
governmental reporting. The sole responsibility of the Custodian with regard to
such tax law shall be to use reasonable efforts to assist the Fund with respect
to any claim for exemption or refund under the tax law of countries for which
the Fund has provided such information.
8.L. LIABILITY OF CUSTODIAN.
----------------------
Except as may arise from the Custodian's own negligence or willful misconduct or
the negligence or willful misconduct of a Foreign Sub-Custodian, the Custodian
shall be without liability to the Fund for any loss, liability, claim or expense
resulting from or caused by anything which is part of Country Risk.
The Custodian shall be liable for the acts or omissions of a Foreign
Sub-Custodian to the same extent as set forth with respect to sub-custodians
generally in the Agreement and, regardless of whether assets are maintained in
the custody of a Foreign Sub-Custodian or a Foreign Securities System, the
Custodian shall not be liable for any loss, damage, cost, expense, liability or
claim resulting from nationalization, expropriation, currency restrictions, or
acts of war or terrorism or any loss where a Sub-Custodian has otherwise
exercised the standard of care that a professional custodian engaged in the
banking or trust company industry and having professional expertise in financial
and securities processing transactions and custody would observe.
8.M. REIMBURSEMENT FOR ADVANCES.
--------------------------
Notwithstanding any other provision in this Agreement, if the Fund requires the
Custodian to advance cash or foreign securities for any purpose including the
purchase or sale of foreign exchange or of contracts for foreign exchange, or in
the event that the Custodian or its nominee shall incur or be assessed any
taxes, charges, expenses, assessments, claims or liabilities in connection with
the performance of Section 8 of Article II, except such as may arise from its or
its nominee's own negligent action, negligent failure to act or willful
misconduct, each Series hereby grants to the Custodian a security interest and
pledges to the Custodian in an amount not to exceed the lesser of the dollar
amounts borrowed or two percent (15 percent, in the case of the Money Market
Series) of such Series's total assets (taken at cost), the specific securities
to be designated in writing from time to time by the Series or its investment
advisor; provided, however, that (1) if from time to time neither the Series nor
its investment adviser shall have designated in writing specific securities in
an amount at least equal to the lesser of the dollar amounts borrowed or two
percent (15 percent, in the case of the Money Market Series) of such Series's
total assets (taken at cost), or (2) if as a result of the delivery by the
Custodian out of its custody, pursuant to Proper
11
Instructions, of any securities so designated shall be less than lesser of the
dollar amounts borrowed or two percent (15 percent, in the case of the Money
Market Series) of such Series's total assets, then the Custodian shall have a
security interest in such Series's securities in an amount that, taken together
with amounts of securities from time to time designated in writing by the Series
or its investment adviser that have not been delivered out of the custody of the
Custodian pursuant to Proper Instructions, does not exceed the lesser of the
dollar amounts borrowed or two percent (15 percent, in the case of the Money
Market Series) of such Series's total assets (taken at cost). Should the Series
fail to repay promptly any advances of cash or securities, the Custodian shall
be entitled to use available cash and to dispose of pledged securities and
property as is necessary to repay any such advances.
III. Except as specifically superseded or modified herein, the terms and
provisions of the Agreement shall continue to apply with full force and
effect. Regarding the Custodian's role as Foreign Custody Manager only, in
the event of any conflict between the terms of the Agreement prior to this
Amendment and this Amendment, the terms of this Amendment shall prevail. If
the Custodian is delegated the responsibilities of Foreign Custody Manager
pursuant to the terms of Section 7 hereof, in the event of any conflict
between the provisions of Section 7 and 8 hereof, the provisions of Section
7 shall prevail.
IN WITNESS WHEREOF, each of the parties has caused this Amendment to be
executed in its name and behalf by its duly authorized representative as of the
date first above written.
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WITNESSED BY: STATE STREET BANK AND TRUST COMPANY
/s/ Xxxxxx Xxxxx Xxxxx By: /s/ Xxxxxx X. Xxxxx
--------------------------- ----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice Chairman & Chief Operating Officer
WITNESSED BY: NEW ENGLAND ZENITH FUND,
on behalf of each of its series.
/s/ Xxxx X. Xxxxxxx By: /s/ Xxxx X. Xxxxxxx, Xx.
-------------------------- ---------------------------------------
Name: Xxxx X. Xxxxxxx, Xx.
Title: Senior Vice President
A Copy of the Agreement and Declaration of Trust establishing New England Zenith
Fund is on file with the Secretary of State of The Commonwealth of
Massachusetts, and notice is hereby given that this Agreement is executed on
behalf of the Fund by officers of the Fund as officers and not individually and
that the obligations of or arising out of this Agreement are not binding upon
any of the Trustees, officers or shareholders individually but are binding only
upon the assets and property of the Fund.
00
XXXXX XXXXXX SCHEDULE A
GLOBAL CUSTODY NETWORK
SUBCUSTODIANS
COUNTRY SUBCUSTODIAN
Argentina Citibank, N.A.
Australia Westpac Banking Corporation
Austria Erste Bank der Osterreichischen
Sparkassen AG
Bahrain HSBC Bank Middle East
(as delegate of The Hongkong and
Shanghai Banking Corporation Limited)
Bangladesh Standard Chartered Bank
Belgium Fortis Bank nv-sa
Bermuda The Bank of Bermuda Limited
Bolivia Citibank, N. A.
Botswana Barclays Bank of Botswana Limited
Brazil Citibank, N.A.
Bulgaria ING Bank N.V.
Canada State Street Trust Company Canada
Chile Citibank, N.A.
People's Republic The Hongkong and Shanghai
of China Banking Corporation Limited,
Shanghai and Shenzhen branches
Colombia Cititrust Colombia S.A. Sociedad Fiduciaria
0
XXXXX XXXXXX SCHEDULE A
GLOBAL CUSTODY NETWORK
SUBCUSTODIANS
COUNTRY SUBCUSTODIAN
Costa Rica Banco BCT S.A.
Croatia Privredna Banka Zagreb d.d
Cyprus The Cyprus Popular Bank Ltd.
Czech Republic Ceskoslovenska Obchodni
Banka, A.S.
Denmark Den Danske Bank
Ecuador Citibank, N.A.
Egypt Egyptian British Bank S.A.E.
(as delegate of The Hongkong
and Shanghai Banking Corporation
Limited)
Estonia Hansabank
Finland Xxxxxx Bank Plc.
France BNP Paribas, S.A.
Germany Dresdner Bank AG
Ghana Barclays Bank of Ghana Limited
Greece National Bank of Greece S.A.
Hong Kong Standard Chartered Bank
Xxxxxxx Xxxxxxxx Xx.
0
XXXXX XXXXXX SCHEDULE A
GLOBAL CUSTODY NETWORK
SUBCUSTODIANS
COUNTRY SUBCUSTODIAN
Iceland Icebank Ltd.
India Deutsche Bank AG
The Hongkong and Shanghai
Banking Corporation Limited
Indonesia Standard Chartered Bank
Ireland Bank of Ireland
Israel Bank Hapoalim B.M.
Italy BNP Paribas, Italian Branch
Ivory Coast Societe Generale de Banques
en Cote d'Ivoire
Jamaica Scotiabank Jamaica Trust and Merchant
Bank Ltd.
Japan The Fuji Bank, Limited
The Sumitomo Bank, Limited
Jordan HSBC Bank Middle East
(as delegate of The Hongkong and
Shanghai Banking Corporation Limited)
Kazakhstan HSBC Bank Kazakhstan
Kenya Barclays Bank of Kenya Limited
Republic of Korea The Hongkong and Shanghai Banking
Corporation Limited
0
XXXXX XXXXXX SCHEDULE A
GLOBAL CUSTODY NETWORK
SUBCUSTODIANS
COUNTRY SUBCUSTODIAN
Latvia A/s Hansabanka
Lebanon HSBC Bank Middle East
(as delegate of The Hongkong and
Shanghai Banking Corporation Limited)
Lithuania Vilniaus Bankas AB
Malaysia Standard Chartered Bank Malaysia Berhad
Mauritius The Hongkong and Shanghai
Banking Corporation Limited
Mexico Citibank Mexico, S.A.
Morocco Banque Commerciale du Maroc
Namibia Standard Bank Namibia Limited
Netherlands Fortis Bank (Nederland) N.V.
New Zealand ANZ Banking Group (New Zealand) Limited
Nigeria Stanbic Merchant Bank Nigeria Limited
Norway Christiania Bank og Kreditkasse ASA
Oman HSBC Bank Middle East
(as delegate of The Hongkong and
Shanghai Banking Corporation Limited)
Pakistan Deutsche Bank AG
Palestine HSBC Bank Middle East
(as delegate of The Hongkong and
Shanghai Banking Corporation Limited)
0
XXXXX XXXXXX SCHEDULE A
GLOBAL CUSTODY NETWORK
SUBCUSTODIANS
COUNTRY SUBCUSTODIAN
Panama BankBoston, N.A.
Peru Citibank, N.A.
Philippines Standard Chartered Bank
Poland Citibank (Poland) S.A.
Portugal Banco Comercial Portugues
Qatar HSBC Bank Middle East
(as delegate of The Hongkong and
Shanghai Banking Corporation Limited)
Romania ING Bank N.V.
Russia Credit Suisse First Boston AO - Moscow
(as delegate of Credit Suisse
First Boston - Zurich)
Singapore The Development Bank of Singapore Limited
Slovak Republic Ceskoslovenska Obchodni Banka, A.S.
Slovenia Bank Austria Creditanstalt d.d. - Ljubljana
South Africa Standard Bank of South Africa Limited
Spain Banco Santander Central Hispano S.A.
Sri Lanka The Hongkong and Shanghai
Banking Corporation Limited
Swaziland Standard Bank Swaziland Limited
Sweden Skandinaviska Enskilda Banken
0
XXXXX XXXXXX SCHEDULE A
GLOBAL CUSTODY NETWORK
SUBCUSTODIANS
COUNTRY SUBCUSTODIAN
Switzerland UBS AG
Taiwan - R.O.C. Central Trust of China
Thailand Standard Chartered Bank
Trinidad & Tobago Republic Bank Limited
Tunisia Banque Internationale Arabe de Tunisie
Turkey Citibank, N.A.
Ukraine ING Bank Ukraine
United Kingdom State Street Bank and Trust Company,
London Branch
Uruguay BankBoston, N.A.
Venezuela Citibank, N.A.
Vietnam The Hongkong and Shanghai
Banking Corporation Limited
Zambia Barclays Bank of Zambia Limited
Zimbabwe Barclays Bank of Zimbabwe Limited
0
XXXXX XXXXXX SCHEDULE B
GLOBAL CUSTODY NETWORK
DEPOSITORIES OPERATING IN NETWORK MARKETS
COUNTRY DEPOSITORIES
Argentina Caja de Valores S.A.
Australia Austraclear Limited
Reserve Bank Information and
Transfer System
Austria Oesterreichische Kontrollbank AG
(Wertpapiersammelbank Division)
Belgium Caisse Interprofessionnelle de Depots et
de Virements de Titres, S.A.
Banque Nationale de Belgique
Brazil Companhia Brasileira de Liquidacao e Custodia
Bulgaria Central Depository AD
Bulgarian National Bank
Canada Canadian Depository for Securities Limited
Chile Deposito Central de Valores S.A.
People's Republic Shanghai Securities Central Clearing &
of China Registration Corporation
Shenzhen Securities Central Clearing Co., Ltd.
Colombia Deposito Centralizado de Valores
Costa Rica Central de Valores S.A.
STATE STREET SCHEDULE B
GLOBAL CUSTODY NETWORK
DEPOSITORIES OPERATING IN NETWORK MARKETS
COUNTRY DEPOSITORIES
Croatia Ministry of Finance
National Bank of Croatia
Sredisnja Depozitarna Agencija d.d.
Czech Republic Stredisko cennych papiru
Czech National Bank
Denmark Vaerdipapircentralen (Danish Securities Center)
Egypt Misr for Clearing, Settlement, and Depository
Estonia Eesti Vaartpaberite Keskdepositoorium
Finland Finnish Central Securities Depository
France Societe Interprofessionnelle pour la Compensation
des Valeurs Mobilieres
Germany Clearstream Banking AG, Frankfurt
Greece Bank of Greece,
System for Monitoring Transactions in
Securities in Book-Entry Form
Apothetirion Titlon AE - Central Securities Depository
Hong Kong Central Clearing and Settlement System
Central Moneymarkets Unit
Hungary Kozponti Elszamolohaz es Ertektar
(Budapest) Rt. (KELER)
STATE STREET SCHEDULE B
GLOBAL CUSTODY NETWORK
DEPOSITORIES OPERATING IN NETWORK MARKETS
COUNTRY DEPOSITORIES
India National Securities Depository Limited
Central Depository Services India Limited
Reserve Bank of India
Indonesia Bank Indonesia
PT Kustodian Sentral Efek Indonesia
Ireland Central Bank of Ireland
Securities Settlement Office
Israel Tel Aviv Stock Exchange Clearing
House Ltd. (TASE Clearinghouse)
Italy Monte Titoli S.p.A.
Banca d'Italia
Ivory Coast Depositaire Central - Banque de Reglement
Jamaica Jamaica Central Securities Depository
Japan Japan Securities Depository Center (JASDEC)
Bank of Japan Net System
Kazakhstan Central Depository of Securities
Kenya Central Bank of Kenya
Republic of Korea Korea Securities Depository
Latvia Latvian Central Depository
STATE STREET SCHEDULE B
GLOBAL CUSTODY NETWORK
DEPOSITORIES OPERATING IN NETWORK MARKETS
COUNTRY DEPOSITORIES
Lebanon Custodian and Clearing Center of
Financial Instruments for Lebanon
and the Middle East (Midclear) X.X.X.
Banque du Liban
Lithuania Central Securities Depository of Lithuania
Malaysia Malaysian Central Depository Sdn. Bhd.
System Bank Negara Malaysia,
Scripless Securities Trading and Safekeeping
Mauritius Central Depository and Settlement Co. Ltd.
Bank of Mauritius
Mexico S.D. INDEVAL
(Instituto para el Deposito de Valores)
Morocco Maroclear
Netherlands Nederlands Centraal Instituut voor
Giraal Effectenverkeer B.V. (NECIGEF)
New Zealand New Zealand Central Securities
Depository Limited
Nigeria Central Securities Clearing System Limited
Norway Verdipapirsentralen (Norwegian Central
Securities Depository)
Oman Muscat Depository & Securities
Registration Company, SAOC
STATE STREET SCHEDULE B
GLOBAL CUSTODY NETWORK
DEPOSITORIES OPERATING IN NETWORK MARKETS
COUNTRY DEPOSITORIES
Pakistan Central Depository Company of Pakistan Limited
State Bank of Pakistan
Palestine Clearing Depository and Settlement, a department
of the Palestine Stock Exchange
Peru Caja de Valores y Liquidaciones, Institucion de
Compensacion y Liquidacion de Valores S.A
Philippines Philippine Central Depository, Inc.
Registry of Scripless Securities
(XXXX) of the Bureau of Treasury
Poland National Depository of Securities
(Krajowy Depozyt Papierow Wartosciowych SA)
Central Treasury Bills Registrar
Portugal Central de Valores Mobiliarios
Qatar Central Clearing and Registration (CCR), a
department of the Doha Securities Market
Romania National Securities Clearing, Settlement and
Depository Company
Bucharest Stock Exchange Registry Division
National Bank of Romania
Singapore Central Depository (Pte) Limited
Monetary Authority of Singapore
STATE STREET SCHEDULE B
GLOBAL CUSTODY NETWORK
DEPOSITORIES OPERATING IN NETWORK MARKETS
COUNTRY DEPOSITORIES
Slovak Republic Stredisko cennych papierov
National Bank of Slovakia
Slovenia Klirinsko Depotna Xxxxxx x.x.
South Africa Central Depository Limited
Share Transactions Totally Electronic
(STRATE) Ltd.
Spain Servicio de Compensacion y
Liquidacion de Valores, S.A.
Banco de Espana, Central de Anotaciones en Cuenta
Sri Lanka Central Depository System (Pvt) Limited
Sweden Vardepapperscentralen VPC AB
(Swedish Central Securities Depository)
Switzerland SegaIntersettle AG (SIS)
Taiwan - R.O.C. Taiwan Securities Central Depository Co., Ltd.
Thailand Thailand Securities Depository Company Limited
Tunisia Societe Tunisienne Interprofessionelle pour la
Compensation et de Depots des Valeurs Mobilieres
Turkey Takas ve Saklama Bankasi A.S. (TAKASBANK)
Central Bank of Turkey
Ukraine National Bank of Ukraine
STATE STREET SCHEDULE B
GLOBAL CUSTODY NETWORK
DEPOSITORIES OPERATING IN NETWORK MARKETS
COUNTRY DEPOSITORIES
United Kingdom Central Gilts Office and
Central Moneymarkets Office
Venezuela Banco Central de Venezuela
Zambia XxXX Central Shares Depository Limited
Bank of Zambia
TRANSNATIONAL
Euroclear
Clearstream Banking AG
SCHEDULE C
MARKET INFORMATION
PUBLICATION/TYPE OF INFORMATION BRIEF DESCRIPTION
------------------------------- -----------------
(FREQUENCY)
The Guide to Custody in World Markets An overview of safekeeping and settlement practices and procedures in each market in
------------------------------------- which State Street Bank and Trust Company offers custodial services.
(annually)
Global Custody Network Review Information relating to the operating history and structure of
----------------------------- depositories and subcustodians located in the markets in which State
(annually) Street Bank and Trust Company offers custodial services, including
transnational depositories.
Global Legal Survey With respect to each market in which State Street Bank and Trust Company offers
--------------------- custodial services, opinions relating to whether local law restricts (i) access of a
(annually) fund's independent public accountants to books and records of a Foreign Sub-Custodian or
Foreign Securities System, (ii) the Fund's ability to recover in the event of bankruptcy
or insolvency of a Foreign Sub-Custodian or Foreign Securities System, (iii) the Fund's
ability to recover in the event of a loss by a Foreign Sub-Custodian or Foreign
Securities System, and (iv) the ability of a foreign investor to convert cash and cash
equivalents to U.S. dollars.
Subcustodian Agreements Copies of the subcustodian contracts State Street Bank and
----------------------- Trust Company has entered into with each subcustodian in the markets in
(annually) which State Street Bank and Trust Company offers subcustody services
to its US mutual fund clients.
Network Bulletins (weekly): Developments of interest to investors in the markets in which State
Street Bank and Trust Company offers custodial services.
Foreign Custody Advisories (as
necessary): With respect to markets in which State Street Bank and
Trust Company offers custodial services which exhibit
special custody risks, developments which may impact
State Street's ability to deliver expected levels of
service.
Schedule D
----------
Xxxxx Equity Growth Series
Back Bay Advisors Bond Income Series
Back Bay Advisors Managed Series
Back Bay Advisors Money Market Series
Balanced Series
Capital Growth Series
Xxxxx Venture Value Series
Xxxxxx Oakmark Mid Cap Value Series
Xxxxxx Xxxxxx Small Cap Series
MFS Investors Series
MFS Research Managers Series
Xxxxxx Xxxxxxx International Magnum Equity Series
Salomon Brothers Strategic Bond Opportunities Series
Salomon Brothers U.S. Government Series
Westpeak Growth and Income Series
Westpeak Stock Index Series
August 3, 2000
