Exhibit (g)(v) under Form N-1A
Exhibit 10 under Item 601/ Reg. S-K
CUSTODY AGREEMENT
AGREEMENT, dated as of June 7, 2005 between the registered investment
companies, on behalf of each Series of such registered investment companies, if
any, listed on Schedule n to this Agreement, as it may be amended from time to
time (each stand alone registered investment company and each Series a "Fund"
and collectively the "Funds") and The Bank of New York, a New York corporation
authorized to do a banking business having its principal office and place of
business at Xxx Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Custodian" or "Bank").
WITNESSETH:
that for and in consideration of the mutual promises hereinafter set forth the
Funds and Custodian agree as follows:
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words shall have the
meanings set forth below:
1. "AUTHORIZED PERSON" shall be any person, whether or not an officer or
employee of the Fund, duly authorized by the Fund's board to execute any
Certificate or to give any Oral Instruction with respect to one or more
Accounts, such persons to be designated in a "Certificate annexed hereto as
Schedule I hereto or such other Certificate as may be received by Custodian from
time to time.
2. "BNY AFFILIATE" shall mean any office, branch or subsidiary of The
Bank of New York Company, Inc.
3. "BOOK-ENTRY SYSTEM" shall mean the Federal Reserve/Treasury book-entry
system for receiving and delivering securities, its successors and nominees.
4. "BUSINESS DAY" shall mean any day on which Custodian and relevant
Depositories are open for business.
5. "CERTIFICATE" shall mean any notice, instruction, or other instrument
in writing, authorized or required by this Agreement to be given to Custodian,
which is actually received by Custodian by letter or facsimile transmission and
signed on behalf of a Fund by an Authorized Person or a person reasonably
believed by Custodian to be an Authorized Person.
6. "COMPOSITE CURRENCY UNIt" shall mean the Euro or any other composite
currency unit consisting of the aggregate of specified amounts of specified
currencies, as such unit may be constituted from time to time.
7. "DEPOSITORY" shall include (a) the Book-Entry System, (b) the
Depository Trust Company, { c) any other clearing agency or securities
depository registered with the Securities and Exchange Commission identified to
the Fund from time to time, and (d) the respective successors and nominees of
the foregoing.
8. "FOREIGN DEPOSITORY" shall mean (a) Euroclear, (b) Clearstream
Banking, societe anonyme, (c) each Eligible Securities Depository as defined in
Rule 17f-7 under the Investment Company Act of 1940, as amended, identified to
the Fund from time to time, and (d) the respective successors and nominees of
the foregoing.
9. "INSTRUCTIONS" shall mean communications transmitted by electronic or
telecommunications media, including S.W.I.F.T., computer-to-computer interface,
or dedicated transmission lines.
10. "ORAL INSTRUCTIONS" shall mean verbal instructions received by
Custodian from an Authorized Person or from a person reasonably believed by
Custodian to be an Authorized Person.
11. "SERIES" shall mean a "series company" as defined in Rule 18f-2(a)
promulgated under the Investment Company Act of 1940.
12. "SECURITIES" shall include, without limitation, any common stock and
other equity securities, bonds, debentures and other debt securities, notes,
mortgages or other obligations, and any instruments representing rights to
receive, purchase, or subscribe for the same, or representing any other rights
or interests therein (whether represented by a certificate or held in a
Depository or by a Subcustodian).
13. "SUBCUSTODIAN" shall mean a bank (including any branch thereof) or
other financial institution (other than a Foreign Depository) located outside
the U.S. which is utilized by Custodian in connection with the purchase, sale or
custody of Securities hereunder and identified to the Fund from time to time,
and their respective successors and nominees.
ARTICLE II
APPOINTMENT OF CUSTODIAN; ACCOUNTS;
REPRESENTATIONS, WARRANTIES, AND COVENANTS
1. (a) The Fund hereby appoints Custodian as Custodian of all
Securities and cash at any time delivered to Custodian during the term of this
Agreement, and authorizes Custodian to hold Securities in registered form in
its name or the name of its nominees. Custodian hereby accepts such appointment
and agrees to establish and maintain one or more securities accounts and cash
accounts for each Fund in which Custodian will hold Securities and cash as
provided herein. Custodian shall maintain books and records segregating the
assets of each Fund from the assets of any other Fund. Such accounts (each, an
"Account"; collectively, the "Accounts") shall be in the name of each Fund.
(b) Custodian may from time to time establish on its books and
records such sub-accounts within each Account as the Fund and Custodian may
agree upon (each a "Special Account"), and Custodian shall reflect therein such
assets as the Fund may specify in a Certificate or Instructions.
(c) Custodian may from time to time establish pursuant to a
written agreement with and for the benefit of a broker, dealer, future
commission merchant or other third party identified in a Certificate or
Instruction such accounts on such terms and conditions as the Fund and Custodian
shall agree, and Custodian shall transfer to such account such Securities and
money as a Fund may specify in a Certificate or Instructions.
2. Each Fund hereby represents and warrants, which representations and
warranties shall be continuing and shall be deemed to be reaffirmed upon each
delivery of a Certificate or each giving of Oral Instructions or Instructions by
a Fund, that:
(a) It is duly organized and existing under the laws of the
jurisdiction of its organization, with full power to carry on its business as
now conducted, to enter into this Agreement, and to perform its obligations
hereunder;
(b) This Agreement has been duly authorized by resolution of the
Funds' boards, executed and delivered by each Fund, constitutes a valid and
legally binding obligation of each Fund, enforceable in accordance with its
terms, and there is no statute, regulation, role, order or judgment binding on
it, and no provision of its charter or by-laws, nor of any mortgage, indenture,
credit agreement or other contract binding on it or affecting its property,
which would prohibit its execution or performance of this Agreement;
(c) It is conducting its business in substantial compliance with
all applicable laws and requirements, both state and federal, and has obtained
all regulatory licenses, approvals and consents necessary to carry on its
business as now conducted;
(d) It will not use the services provided by Custodian hereunder
in any manner that is, or will result in, a violation of any law, rule or
regulation applicable to the Fund;
(e) Its foreign custody manager, if the foreign custody manager
is not the Custodian, as defined in Rule 17f-5 under the Investment Company Act
of 1940, as amended (the "'40 Act"), has determined that use of each
Subcustodian (including any Replacement Custodian) which Custodian is authorized
to utilize in accordance with Section 1 (a) of Article ill hereof satisfies the
applicable requirements of the '40 Act and Rule 17f-5 thereunder;
(f) It is fully informed of the protections and risks associated
with various methods of transmitting Instructions and Oral Instructions and
delivering Certificates to Custodian, shall, and shall cause each Authorized
Person, to safeguard and treat with reasonable care any user and authorization
codes, passwords and/or authentication keys, understands that there may be more
secure methods of transmitting or delivering the same than the methods selected
by it, agrees that the security procedures (if any) to be utilized provide a
commercially reasonable degree of protection in light of its particular needs
and circumstances, and acknowledges and agrees that Instructions may
conclusively be presumed by Custodian to have been given by person(s) duly
authorized, and may be acted upon as given;
(g) It shall manage its borrowings, including, without
limitation any advance or overdraft (including any day-light overdraft) in the
Accounts, so that the aggregate of its total borrowings for each Fund does not
exceed the amount such Fund is permitted to borrow under the '40 Act;
(h) Its transmission or giving of, and Custodian acting upon and
in reliance on Certificates, Instructions, or Oral Instructions pursuant to this
Agreement shall at all times comply with the '40 Act; and
(i) It has the right to grant the security interest and security
entitlement to Custodian contained in Section 1 of Article V hereof, free of any
right of redemption or prior claim of any other person or entity, such pledge
and such grants shall have a first priority subject to no setoffs,
counterclaims, or other liens or grants prior to or on a parity therewith, and
it shall take such additional steps as Custodian may require to assure such
priority;
(j) Each Fund or its investment adviser has considered the
custody risks of maintaining assets with each Foreign Depository with which it
maintains its assets.
(k) Each Fund shall cause procedures to be maintained on the
manner in which Instructions pursuant to which cash is distributed shall be
given to Custodian.
3. The Fund hereby covenants that it shall from time to time complete
and execute and deliver to Custodian upon Custodian's request a Form FR U-1 (or
successor form) whenever the Fund borrows from Custodian any money to be used
for the purchase or carrying of margin stock as defined in Federal Reserve
Regulation U .
4. The Bank hereby represents and warrants, which representations and
warranties shall be continuing that:
(a) It is a bank having the qualifications prescribed in
paragraph (1) of section 26(a) of the '40 Act;
(b) It is duly organized and existing under the laws of the
jurisdiction of its organization, with full power to carry on its business as
now conducted, to enter into this Agreement, and to perform its obligations
hereunder;
(c) It is conducting its business in substantial compliance with
all applicable laws and requirements, both state and federal, and has obtained
all regulatory licenses, approvals and consents necessary to carry on its
business as now conducted.
(d) In connection with the Funds' obligations under Rule 38a-l
of the 1940 Act the Bank agrees as follows:
(1) the Bank agrees to reasonably cooperate with the Funds and
the Funds' Chief Compliance Officer in the administration of the Funds'
compliance program ("Compliance Program") as required by the Securities and
Exchange Commission ("SEC");
(2) the Bank has implemented and maintains policies and
procedw.-es reasonably designed to prevent, detect and promptly correct any
violations of Federal Securities Laws with respect to services the Bank provides
to the Funds ("Compliance Procedures");
(3) the Bank Will provide summaries of any Compliance Procedures
that may affect in any material respect, the services provided hereunder by the
Bank to the Funds;
(4) the Bank periodically reviews the adequacy of such
Compliance Procedures and the effectiveness of their implementation and upon the
request of a Fund, Will provide the then current interval between such reviews;
(5) in the event that an officer or employee of the Bank
administering this Agreement has actual knowledge of the occurrence of a
"Material Compliance Matter" (as defined in Rule 38a-l(e)(2)) which the Bank
reasonably believes is related to or Will affect the Fund, the Bank will, if
permitted by law and the Bank's regulators, notify the Fund of such occurrence;
(6) except where prohibited bylaw, regulation or rule or as may
be directed or instructed by the Bank's regulators, the Bank agrees to notify
the Funds following quarter-end of any inspections by, or other inquiries
received from, the SEC or any other regulatory or law enforcement agency after
the date of this certification, which relate to the services provided by the
Bank to the Funds hereunder. For the avoidance of doubt, such notification
obligation shall be satisfied if the notice is contained in any publicly
available regulatory filing.
(d) The Bank will maintain throughout the term of this
Agreement, such contingency plans as it reasonably believes to be necessary and
appropriate to recover its operations from the occurrence of a disaster and
which are consistent with any statue or regulation to which it is subject that
imposes business resumption and contingency planning standards. The Bank agrees
to provide the Funds With a summary of its contingency plan as it relates to the
systems used to provide the services hereunder and to provide the Funds with
periodic updates of such summary upon the Funds' reasonable request.
ARTICLE LLI
CUSTODY AND RELATED SERVICES
1. (a) Subject to the terms hereof, each Fund hereby authorizes
Custodian to hold any Securities received by it from time to time for the Fund's
account. Custodian shall be entitled to utilize, subject to subsection (c) of
this Section I, Depositories, Subcustodians, and, subject to subsection (d) of
this Section 1, Foreign Depositories, to the extent possible in connection With
its performance hereunder. Securities and cash held in a Depository or Foreign
Depository will be held subject to the rules, terms and conditions of such
entity .Securities and cash held through Subcustodians shall be held subject to
the terms and conditions of Custodian's agreements with such Subcustodians.
Subcustodians may be authorized to hold Securities in Foreign Depositories in
which such Subcustodians participate. Unless otherwise required by local law or
practice or a particular Subcustodian agreement, Securities deposited with a
Subcustodian, a Depositary or a Foreign Depository Will beheld in a commingled
account, in the name of Custodian, holding only Securities held by Custodian as
Custodian for its customers.
Custodian shall identify on its books and records the Securities and cash
belonging to the Fund, whether held directly or indirectly through Depositories,
Foreign Depositories, or Subcustodians. Custodian shall, directly or indirectly,
through Subcustodians, Depositories, or Foreign Depositories, endeavor, to the
extent feasible, to hold Securities in the country or other jurisdiction in
which the principal trading market for such Securities is located, where such
Securities are to be presented for cancellation and/or payment and/or
registration, or where such Securities are acquired. Custodian at any time may
cease utilizing any Subcustodian and/or may replace a Subcustodian with a
different Subcustodian (the "Replacement Subcustodian"). In the event Custodian
selects a Replacement Subcustodian, Custodian shall not utilize such Replacement
Subcustodian until after the Fund's foreign custody manager has determined that
utilization of such Replacement Subcustodian satisfies the requirements of the'
40 Act and Rule 17f-5 thereunder.
(b) Unless Custodian has received a Certificate or Instructions
to the contrary, Custodian shall hold Securities indirectly through a
Subcustodian only if (i) the Securities are not subject to any right, charge,
security interest, lien or claim of any kind in favor of such Subcustodian or
its creditors or operators, including a receiver or trustee in bankruptcy or
similar authority, except for a claim of payment for the safe custody or
administration of Securities on behalf of a Fund by such Subcustodian, and (ii)
beneficial ownership of the Securities is freely transferable without the
payment of money or value other than for safe custody or administration.
(c) With respect to each Depository, Custodian (i) shall
exercise due care in accordance with reasonable commercial standards in
discharging its duties as a securities intermediary to obtain and thereafter
maintain Securities or financial assets deposited or held in such Depository,
and (ii) will provide, promptly upon request by a Fund, such reports as are
available concerning the internal accounting controls and financial strength of
Custodian.
(d) With respect to each Foreign Depository, Custodian shall
exercise reasonable care, prudence, and diligence (i) to provide the Fund with
an analysis of the custody risks associated with maintaining assets with the
Foreign Depository, and (ii) to monitor such custody risks on a continuing basis
and promptly notify the Fund of any material change in such risks. The Fund
acknowledges and agrees that such analysis and monitoring shall be made on the
basis of, and limited by, information gathered from Subcustodians or through
publicly available information otherwise obtained by Custodian, and shall not
include any evaluation of Country Risks. As used herein the term "Country Risks"
shall mean with respect to any Foreign Depository: (a) the financial
infrastructure of the country in which it is organized, (b) such country's
prevailing custody and settlement practices, (c) nationalization, expropriation
or other governmental actions, (d) such country's regulation of the banking or
securities industry, (e) currency controls, restrictions, devaluations or
fluctuations, and (f) market conditions which affect the order execution of
securities transactions or affect the value of securities.
2. Custodian shall furnish the Fund with an advice of daily
transactions (including a confirmation of each transfer of Securities) and a
monthly summary of all transfers to or from the Accounts.
3. With respect to all Securities held hereunder, Custodian shall,
unless otherwise instructed to the contrary:
(a) Receive all income and other payments and advise the Fund as
promptly as practicable of any such amounts due but not paid;
(b) Present for payment and receive the amount paid upon all
Securities which may mature and advise the Fund as promptly as practicable of
any such amounts due but not paid;
(c) Forward to the Fund copies of all information or documents
that it may actually receive from an issuer of Securities which, in the opinion
of Custodian, are intended for the beneficial owner of Securities;
(d) Execute, as Custodian, any certificates of ownership,
affidavits, declarations or other certificates under any tax. laws now or
hereafter in effect in connection with the collection of bond and note coupons;
(e) Hold directly or through a Depository, a Foreign Depository,
or a Subcustodian all rights and similar Securities issued with respect to any
Securities credited to an Account hereunder; and
(f) Endorse for collection checks, drafts or other negotiable
instruments.
(1) Custodian shall notify the Fund of rights or
discretionary actionswith respect to Securities held
hereunder, and of the date or dates by when such rights must
be exercised or such action must be taken, provided that
Custodian has actually received, from the issuer or the
relevant Depository (with respect to Securities issued in
the United States) or from the relevant Subcustodian,
Foreign Depository, or a nationally or internationally
recognized bond or corporate action service to which
Custodian subscribes, timely notice of such rights or
discretionary corporate action or of the date or dates such
rights must be exercised or such action must be taken.
Absent actual receipt of such notice, Custodian shall have
no liability for failing to so notify the Fund.
(2) Whenever Securities (including, but not limited to,
warrants, options, tenders, options to tender or non-
mandatory puts or calls) confer discretionary rights on the
Fund or provide for discretionary action or alternative
courses of action by the Fund, the Fund shall be responsible
for making any decisions relating thereto and for directing
Custodian to act. In order for Custodian to act, it must
receive the Fund's Certificate or Instructions at
Custodian's offices, addressed as Custodian may from time to
time request, not later than noon (New York time) at least
two (2) Business Days prior to the last scheduled date to
act with respect to such Securities (or such earlier date or
time as Custodian may specify to the Fund). Absent
Custodian's timely receipt of such Certificate or
Instructions, Custodian shall not be liable for failure to
take any action relating to or to exercise any rights
conferred by such Securities.
4. All voting rights with respect to Securities, however registered,
shall be exercised by the Fund or its designee. For Securities issued in the
United States, Custodian's only duty shall be to mail to the Fund ally documents
(including proxy statements, annual reports and signed proxies) actually
received by Custodian relating to the exercise of such voting rights. With
respect to Securities issued outside of the United States, 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 which such securities are issued.
Notwithstanding the foregoing, the Custodian's only duty shall be to provide the
Funds with access to a provider of global proxy services at the Fund's request
and to coordinate the provision of services between each Fund and the global
proxy service provider. The Fund shall be responsible for all costs associated
with its use of such services.
5. Custodian shall promptly advise the Fund upon Custodian's actual
receipt of notification of the partial redemption, partial payment or other
action affecting less than all Securities of the relevant class. If Custodian,
any Subcustodian, any Depository, or any Foreign Depository holds any Securities
in which the Fund has an interest as part of a fungible mass, Custodian, such
Subcustodian, Depository, or Foreign Depository may select the Securities to
participate in such partial redemption, partial payment or other action in any
non-discriminatory manner that it customarily uses to make such selection.
6. Custodian shall not under any circumstances accept bearer interest
coupons which have been stripped from United States federal, state or local
government or agency securities unless explicitly agreed to by Custodian in
writing. ,
7. The Fund shall be liable for all taxes, assessments, duties and
other governmental charges, including any interest or penalty with respect
thereto ("Taxes"), with respect to any cash or Securities held on behalf of the
Fund or any transaction related thereto. The Fund shall indemnify Custodian and
each Subcustodian for the amount of any Tax that Custodian, any such
Subcustodian or any other withholding agent is required under applicable laws
(whether by assessment or otherwise) to pay on behalf of, or in respect of
income earned by or payments or distributions made to or for the account of the
Fund (including any payment of Tax required by reason of an earlier failure to
withhold). Custodian shall, or shall instruct the applicable Subcustodian or
other withholding agent to, withhold the amount of any Tax which is required to
be withheld under applicable law upon collection of any dividend, interest or
other distribution made with respect to any Security and any proceeds or income
from the sale, loan or other transfer of any Security .In the event that
Custodian or any Subcustodian is required under applicable law to pay any Tax
on behalf of the Fund, Custodian is hereby authorized to withdraw cash from any
cash account in the amount required to pay such Tax and to use such cash, or to
remit such cash to the appropriate Subcustodian or other withholding agent, for
the timely payment of such Tax in the manner required by applicable law. If the
aggregate amount of cash in all cash accounts is not sufficient to pay such
Tax, Custodian shall promptly notify the Fund of the additional amount of cash
(in the appropriate currency) required, and the Fund shall directly deposit
such additional amount in the appropriate cash account promptly after receipt
of such notice, for use by Custodian as specified herein. In the event that
Custodian reasonably believes that Fund is eligible, pursuant to applicable law
or to the provisions of any tax treaty, for a reduced rate of, or exemption
from, any Tax which is otherwise required to be withheld or paid on behalf of
the Fund under any applicable law, Custodian shall, or shall instruct the
applicable Subcustodian or withholding agent to, either withhold or pay such
Tax at such reduced rate or refrain from withholding or paying such Tax, as
appropriate; provided that Custodian shall have received from the Fund all
documentary evidence of residence or other qualification for such reduced rate
or exemption required to be received under such applicable law or treaty .In
the event that Custodian reasonably believes that a reduced rate of, or
exemption from, any Tax is obtainable only by means of an application for
refund, Custodian and the applicable Subcustodian shall have no responsibility
for the accuracy or validity of any forms or documentation provided by the Fund
to Custodian hereunder. The Fund hereby agrees to indemnify and hold harmless
Custodian and each Subcustodian in respect of any liability arising from any
underwithholding or underpayment of any Tax which results from the inaccuracy
or invalidity of any such forms or other documentation, and such obligation to
indemnify shall be a continuing obligation of the Fund, its successors and
assigns notwithstanding the termination of this Agreement.
8. (a) For the purpose of settling Securities and foreign exchange
transactions, the Fund shall provide Custodian with sufficient immediately
available funds for all transactions by such time and date as conditions in the
relevant market dictate. As used herein, "sufficient immediately available
funds" shall mean either (i) sufficient cash denominated in U .S. dollars to
purchase the necessary foreign currency, or (ii) sufficient applicable foreign
currency, to settle the transaction. Custodian shall provide the Fund with
immediately available funds each day which result from the actual settlement of
all sale transactions, based upon advices received by Custodian from
Subcustodians, Depositories, and Foreign Depositories. Such funds shall be in
U.S. dollars or such other currency as the Fund may specify to Custodian.
(b) Any foreign exchange transaction effected by Custodian in
connection with this Agreement may be entered with Custodian or a BNY Affiliate
acting as principal or otherwise through customary banking channels. The Fund
may issue a standing Certificate or Instructions with respect to foreign
exchange transactions, but Custodian may establish roles or limitations
concerning any foreign exchange facility made available to the Fund. The Fund
shall bear all risks of investing in Securities or holding cash denominated in a
foreign currency.
9. Until such time as Custodian receives a certificate to the contrary
with respect to a particular Security, Custodian may 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 shareholder.
ARTICLE IV
PURCHASE AND SALE OF SECURITIES;
CREDITS TO ACCOUNT
1. Promptly after each purchase or sale of Securities by the Fund, the
Fund shall deliver to Custodian a Certificate or Instructions, or with respect
to a purchase or sale of a Security generally required to be settled on the same
day the purchase or sale is made, Oral Instructions specifying all information
Custodian may reasonably request to settle such purchase or sale. Custodian
shall account for all purchases and sales of Securities on the actual settlement
date unless otherwise agreed by Custodian,
2. Custodian shall release and deliver securities owned by a Fund
which are held by the Custodian or in a Depository account of the Custodian only
upon receipt of Instructions, which may be continuing instructions when deemed
appropriate by the parties. Unless an Instruction states to the contrary,
Custodian shall only release and deliver securities from the account of a Fund
upon receipt of payment thereof, In the case of a sale through a Depository, the
Custodian shall transfer securities sold for the account of a Fund upon (i)
receipt of advice from the Depository that payment for such securities has been
transferred to the account of the Custodian at the Depository, and {ii) the
making of an entry on the records of the Custodian to reflect such transfer and
payment for the account of the Fund.
3. Upon receipt of Instructions, which may be continuing instructions
when deemed appropriate by the parties, the Custodian shall payout moneys of a
Fund upon the purchase of securities for the account of the Fund against the
delivery of such securities to the Custodian. In the case of a purchase effected
through a Depository the Custodian shall pay for securities purchased for the
account of each Fund upon (i) receipt of advice from the Depository that such
securities have been transferred to the account of the Custodian at the
Depository, and (ii) the making of an entry on the records of the Custodian to
reflect such payment and transfer for the account of the Fund.
4. Custodian may, as a matter of bookkeeping convenience or by
separate agreement with the Fund, credit the Account with the proceeds from the
sale, redemption or other disposition of Securities or interest, dividends or
other distributions payable on Securities prior to its actual receipt of final
payment therefor. All such credits shall be conditional until Custodian's actual
receipt of final payment and may be reversed by Custodian to the extent that
final payment is not received. Payment with respect to a transaction will not be
"final" until Custodian shall have received immediately available funds which
under applicable local law, rule and/or practice are irreversible and not
subject to any security interest, levy or other encumbrance, and which are
specifically applicable to such transaction.
ARTICLE V
OVERDRAFTS OR INDEBTEDNESS
1. If Custodian should in its sole discretion advance funds on behalf
of any Fund which results in an overdraft {this shall specifically not include
any day-light overdraft) because the money held by Custodian in an Account for
such Fund shall be insufficient to pay the total amount payable upon a purchase
of Securities specifically allocated to such Fund, as set forth ill a
Certificate, Instructions or Oral Instructions, or if an overdraft arises in the
separate account of a Fund for some other reason, including, without limitation,
because of a reversal of a conditional credit or the purchase of any currency,
or if the Fund is for any other reason indebted to Custodian with respect to a
Fund due to a borrowing from a Fund from the Custodian, (except a borrowing for
investment or for temporary or emergency purposes using Securities as collateral
pursuant to a separate agreement and subject to the provisions of Section 2 of
this Article), such overdraft or indebtedness shall be deemed to be a loan made
by Custodian to the Fund for such Fund payable on demand and shall bear interest
from the date incurred at a rate per annum as disclosed on the Fee Schedule
between the Funds and Custodian, as such Fee Exhibit may be amended from time to
time. In addition, the Fund hereby agrees that Custodian shall to the maximum
extent permitted by law have a continuing lien, security interest, and security
entitlement in and to any property, including, without limitation, any
investment property or any financial asset, of such Fund at any time held by
Custodian for the benefit of such Fund or in which such Fund may have an
interest (which is then in Custodian's possession or control or in possession or
control of any third party acting in Custodian's behalf. The Fund authorizes
Custodian, in its sole discretion, at any time to charge any such overdraft or
indebtedness together with interest due thereon against any balance of account
standing to such Fund's credit on Custodian's books. Notwithstanding, anything
in this Agreement to the contrary, provided that Custodian and a Fund are
parties to a Custodial Undertaking in Connection with Master Repurchase
Agreement or a Subcustodial Undertaking in Connection with Master Repurchase
Agreement (collectively the "Custodial Undertakings"), Custodian agrees that any
securities held by Custodian in connection with a repurchase agreement entered
into by such Fund and subject to the Custodial Undertakings shall not be subject
to any security interest, lien or right of setoff by Custodian or any third pep
claiming through Custodian and Custodian shall not pledge, encumber,
hypothecate, transfer, dispose of, or otherwise grant any third party an
interest in, any such securities.
2. If the Fund borrows money from any bank (including Custodian if the
borrowing is pursuant to a separate agreement) for investment or for temporary
or emergency purposes using Securities held by Custodian hereunder as collateral
for such borrowings, the Fund shall deliver to Custodian a Certificate
specifying with respect to each such borrowing: (a) the Fund to which such
borrowing relates; (b) the name of the bank, (c) the amount of the borrowing,
(d) the time and date, if known, on which the loan is to be entered into, (e)
the total amount payable to the Fund on the borrowing date, (f) the Securities
to be delivered as collateral for such loan, including the name of the issuer,
the title and the number of shares or the principal amount of any particular
Securities, and (g) a statement specifying whether such loan is for investment
purposes or for temporary or emergency purposes and that such loan is in
conformance with the '40 Act and the Fund's prospectus. Custodian shall deliver
on the borrowing date specified in a Certificate the specified collateral
against payment by the lending bank of the total amount of the loan payable,
provided that the same conforms to the total amount payable as set forth in the
Certificate. Custodian may, at the option of the lending bank, keep such
collateral in its possession, but such collateral shall be subject to all rights
therein given the lending bank by virtue of any promissory note or loan
agreement. Custodian shall deliver such Securities as additional collateral as
may be specified in a Certificate to collateralize further any transaction
described in this Section. The Fund shall cause all Securities released from
collateral status to be returned directly to Custodian, and Custodian shall
receive from time to time such return of collateral as may be tendered to it. In
the event that the Fund fails to specify in a Certificate the Fund, the name of
the issuer, the title and number of shares or the principal amount of any
particular Securities to be delivered as collateral by Custodian, Custodian
shall not be under any obligation to deliver any Securities.
ARTICLE VI
SALE AND REDEMPTION OF SHARES
1. Whenever the Fund shall sell any shares issued by the Fund
("Shares") it shall deliver to Custodian a Certificate or, Instructions
specifying the amount of money and/or Securities to be received by Custodian for
the sale of such Shares and specifically allocated to an Account for such Fund.
2. Upon receipt of such money, Custodian shall credit such money to an
Account in the name of the Fund for which such money was received.
3. Except as provided hereinafter, whenever the Fund desires Custodian
to make payment out of the money held by Custodian hereunder in connection with
a redemption of any Shares, it shall furnish to Custodian a Certificate or
Instructions specifying the total amount to be paid for such Shares. Custodian
shall make payment of such total amount to the transfer agent specified in such
Certificate or Instructions out of the money held in an Account of the
appropriate Fund.
4. Notwithstanding the above provisions regarding the redemption of
any Shares, whenever any Shares are redeemed pursuant to any check redemption
privilege which may from time to time be offered by the Fund, Custodian, unless
otherwise instructed by a Certificate or Instructions, shall, upon presentment
of such check;, charge the amount thereof against the money held in the Account
of the Fund of the Shares being redeemed, provided, that if the Fund or its
agent timely advises Custodian that such check is not to be honored, Custodian
shall return such check unpaid.
ARTICLE VII
PAYMENT OF DIVIDENDS OR DISTRIBUTIONS
1. Whenever the Fund shall determine to pay a dividend or distribution
on Shares it shall furnish to Custodian Instructions or a Certificate setting
forth with respect to the Fund specified therein the date of the declaration of
such dividend or distribution, the total amount payable, and the payment date.
2. Upon the payment date specified in such Instructions or
Certificate, Custodian shall payout of the money held for the account of such
Fund the total amount payable to the dividend agent of the Fund specified
therein.
ARTICLE VIII
CONCERNING CUSTODIAN
1. (a) The Custodian shall be held to a standard of reasonable care
in carrying out the provisions of this Agreement; provided, however, that the
Custodian shall be held to different standard of care of imposed by any other
provision of this Agreement or imposed upon Custodian by any applicable law or
regulation, which by its terms cannot be contractually modified or waived.
Except as otherwise expressly provided herein, Custodian shall not be liable for
any costs, expenses, damages, liabilities or claims, including attorneys' and
accountants' fees (collectively, "Losses"), incurred by or asserted against the
Fund, except those Losses arising out of Custodian's own negligence or willful
misconduct. Custodian shall have no liability whatsoever for the action or
inaction of any Depositories or of any Foreign Depositories, except in each case
to the extent such action or inaction is a direct result of the Custodian' s
failure to fulfill its duties hereunder. With respect to any Losses incurred by
the Fund as a result of the
acts or any failures to act by any Subcustodian (other than a BNY Affiliate),
Custodian shall take appropriate action to recover such Losses from such
Subcustodian; and Custodian's sole responsibility and liability to the Fund
shall be limited to amounts so received from such Subcustodian ( exclusive of
costs and expenses incurred by Custodian). In no event shall Custodian be liable
to the Fund or any third party for special, indirect or consequential damages,
or lost profits or loss of business, arising in connection with this Agreement,
nor shall Custodian or any Subcustodian be liable: (i) for acting in accordance
with any Certificate or Oral Instructions actually received by Custodian and
reasonably believed by Custodian to be given by an Authorized Person; (ii) for
acting in accordance with Instructions without reviewing the same; (iii) for
conclusively presuming that all Instructions are given only by person(s) duly
authorized; (00 for conclusively presuming that all disbursements of cash
directed by the Fund, whether by a Certificate, an Oral Instruction, or an
Instruction, are in accordance with Section 2(i) of Article II hereof; (y) for
holding property in any particular country, including, but not limited to,
Losses resulting from nationalization, expropriation or other governmental
actions; regulation of the banking or securities industry; exchange or currency
controls or restrictions, devaluations or fluctuations; availability of cash or
Securities or market conditions which prevent the transfer of property or
execution of Securities transactions or affect the value of property; (yi) for
any Losses due to forces beyond the control of Custodian, including without
limitation strikes, work stoppages, acts of war or terrorism, insurrection,
revolution, nuclear or natural catastrophes or acts of God, or interruptions,
loss or malfunctions of utilities, communications or computer (software and
hardware) services; (yii) for the insolvency of any Subcustodian (other than a
BNY Affiliate), any Depository, or, except to the extent such action or inaction
is a direct result of the Custodian's failure to fulfill its duties hereunder,
any Foreign Depository; or (yiii)l for any Losses arising from the applicability
of any law or regulation now or hereafter in effect, or from the occurrence of
any event, including, without limitation, implementation or adoption of any
rules or procedures of a Foreign Depository, which may affect, limit prevent or
impose costs or burdens on, the transferability, convertibility, or availability
of any currency or Composite Currency Unit in any country or on the transfer of
any Securities, and in no event shall Custodian be obligated to substitute
another currency for a currency (including a currency that is a component of a
Composite Currency Unit) whose transferability, convertibility or availability
has been affected, limited, or prevented by such law, regulation or event and to
the extent that any such law, regulation or event imposes a cost or charge upon
Custodian in relation to the transferability, convertibility, or availability of
any cash currency or Composite Currency Unit, such cost or charge shall be for
the account of the Fund, and Custodian may treat any account denominated in an
affected currency as a group of separate accounts denominated in the relevant
component currencies.
(b) Custodian may enter into subcontracts, agreements and
understandings with any BNY Affiliate, whenever and on such terms and conditions
as it deems necessary or appropriate to perform its services hereunder. No such
subcontract, agreement or understanding shall discharge Custodian from its
obligations hereunder.
(c) The Fund agrees to indemnify Custodian and hold Custodian
harmless from and against any and all Losses sustained or incurred by or
asserted against Custodian by reason of or as a result of any action or
inaction, or arising out of Custodian's performance hereunder, including
reasonable fees and expenses of counsel incurred by Custodian in a successful
defense of claims by the Fund; provided however, that the Fund shall not
indemnify Custodian for those Losses arising out of Custodian's own negligence
or willful misconduct. This indemnity shall be a continuing obligation of the
Fund, its successors and assigns, notwithstanding the termination of this
Agreement.
2. Without limiting the generality of the foregoing, Custodian sep be
under no obligation to inquire into, and shall not be liable for:
(a) Any Losses incurred by the Fund or any other person as a
result of the receipt or acceptance of fraudulent, forged or invalid Securities,
or Securities which are otherwise not freely transferable or deliverable without
encumbrance in any relevant market;
(b) The validity of the issue of any Securities purchased, sold,
or written by or for the Fund, the legality of the purchase, sale or writing
thereof, or the propriety of the amount paid or received therefor;
(c) The legality of the sale or redemption of any Shares, or the
propriety of the amount to be received or paid therefor;
(d) The legality of the declaration or payment of any dividend
or distribution by the Fund;
(e) The legality of any borrowing by the Fund;
(f) The legality of any loan of portfolio Securities, nor shall
Custodian be under any duty or obligation to see to it that any cash or
collateral delivered to it by a broker, dealer or financial institution or held
by it at any time as a result of such loan of portfolio Securities is adequate
security for the Fund against any loss it might sustain as a result of such
loan, which duty or obligation shall be the sole responsibility of the Fund. In
addition, Custodian shall be under no duty or obligation to see that any broker,
dealer or financial institution to which portfolio Securities of the Fund are
lent makes payment to it of any dividends or interest which are payable to or
for the account of the Fund during the period of such loan or at the termination
of such loan, provided, however that Custodian shall promptly notify the Fund in
the event that such dividends or interest are not paid and received when due;
(g) The sufficiency or value of any amounts of money and/or
Securities held in any Special Account in connection with transactions by the
Fund; whether any broker, dealer, futures commission merchant or clearing member
makes payment to the Fund of any variation margin payment or similar payment
which the Fund may be entitled to receive from such broker, dealer, futures
commission merchant or clearing member, or whether any payment received by
Custodian from any broker, dealer, futures commission merchant or clearing
member is the amount the Fund is entitled to receive, or to notify the Fund of
Custodian's receiptor non-receipt of any such payment; or
(h) Whether any Securities at any time delivered to, or held by
it or by any Subcustodian, for the account of a Fund are such as properly may be
held by the Fund under the provisions of its then current prospectus and
statement of additional information, or to ascertain whether any transactions by
the Fund, whether or not involving Custodian, are such transactions as may
properly be engaged in by the Fund.
3. Custodian may, with respect to questions of law specifically
regarding an Account, obtain the advice and opinion of counsel to the
independent trustees of a Fund or other counsel that is mutually agreed upon by
the Funds and the Custodian and shall be fully protected with respect to
anything done or omitted by it in good faith in conformity with such advice.
4. Custodian shall be under no obligation to take action to collect
any amount payable on Securities in default, or if payment is refused after due
demand and presentment.
5. Custodian shall have no duty or responsibility to inquire into,
make recommendations, supervise, or determine the suitability of any
transactions affecting any Account.
6. The Fund shall pay to Custodian the fees and charges as may be
specifically agreed upon from time to time and such other fees and charges at
Custodian's standard rates for such services as maybe applicable. The Fund shall
reimburse Custodian for all costs associated with the conversion of the Fund's
Securities hereunder and the transfer of Securities and records kept in
connection with this Agreement. The Fund shall also reimburse Custodian, at
cost, for out-of-pocket expenses which are a normal incident of the services
provided hereunder.
7. Custodian has the right to debit any cash account for any amount
payable by the Fund in connection with any and all obligations of the Fund to
Custodian. In addition to the rights of Custodian under applicable law and other
agreements, at any time when the Fund shall not have honored any of its
obligations to Custodian, Custodian shall have the right without notice to the
Fund to retain or set-off, against such obligations of the Fund, any Securities
or cash Custodian or a BNY Affiliate may directly or indirectly hold for the
account of the Fund, and any obligations (whether matured or unmatured) that
Custodian or a BNY Affiliate may have to the Fund in any currency or Composite
Currency Unit. Any such asset of, or obligation to, the Fund may be transferred
to Custodian and any BNY Affiliate in order to effect the above rights.
8. The Fund agrees to forward to Custodian a Certificate or
Instructions confirming Oral Instructions by the close of business of the same
day that such Oral Instructions are given to Custodian. The Fund agrees that the
fact that such confirming Certificate or Instructions are not received or that a
contrary Certificate or contrary Instructions are received by Custodian shall in
no way affect the validity or enforceability of transactions authorized by such
Oral Instructions and effected by Custodian. If the Fund elects to transmit
Instructions through an on-line communications system offered by Custodian, the
Fund's use thereof shall be subject to the Terms and Conditions attached as
Appendix J hereto, and Custodian shall provide user and authorization codes,
passwords and authentication keys only to an Authorized Person or a person
reasonably believed by Custodian to be an Authorized Person.
9. The books and records pertaining to the Fund which are in
possession of Custodian shall be the property of the Fund. Such books and
records shall be prepared and maintained as required by the '40 Act and the
rules thereunder. The Fund, or its authorized representatives, shall have access
to such books and records during Custodian's normal business hours. Upon the
reasonable request of the Fund, copies of any such books and records shall be
provided by Custodian to the Fund or its authorized representative. Upon the
reasonable request of the Fund, Custodian shall provide in hard copy or on
computer disc any records included in any such delivery which are maintained by
Custodian on a computer disc, or are similarly maintained.
10. It is understood that Custodian is authorized to supply any
information regarding the Accounts which is required by any law, regulation or
rule now or hereafter in effect. The Custodian shall provide the Fund with any
report obtained by the Custodian on the system of internal accounting control of
a Depository, and with such reports on its own system of internal accounting
control as the Fund may reasonably request from time to time.
11. Custodian shall have no duties or responsibilities whatsoever
except such duties and responsibilities as are specifically set forth in this
Agreement, and no covenant or obligation shall be implied against Custodian in
connection with this Agreement.
ARTICLE IX
TERMINATION
1. Either of the parties hereto may terminate this Agreement by giving
to the other party a notice in writing specifying the date of such termination,
which shall be not less than ninety (90) days after the date of giving of such
notice. In the event such notice is given by the Fund, it shall be accompanied
by a copy of a resolution of the board of the Fund, certified by the Secretary
or any Assistant Secretary, electing to terminate this Agreement and designating
a successor Custodian or Custodians, each of which shall be a bank or trust
company having not less than $2,000,000 aggregate capital, surplus and undivided
profits. In the event such notice is given by Custodian, the Fund shall, on or
before the termination date, deliver to Custodian a copy of a resolution of the
board of the Fund, certified by the Secretary or any Assistant Secretary,
designating a successor Custodian or Custodians. In the absence of such
designation by the Fund, Custodian may designate a successor Custodian which
shall be a bank or trust company having not less than $2,000,000 aggregate
capital, surplus and undivided profits. Upon the date set forth in such notice
this Agreement shall terminate, and Custodian shall upon receipt of a notice of
acceptance by the successor Custodian on that date deliver directly to the
successor Custodian all Securities and money then owned by the Fund and held by
it as Custodian, after deducting an fees, expenses and other accounts for the
payment or reimbursement of which it shall then be entitled.
2. If a successor Custodian is not designated by the Fund or Custodian
in accordance with the preceding Section, the Fund shall upon the date specified
in the notice of termination of this Agreement and upon the delivery by
Custodian of all Securities (other than Securities which cannot be delivered to
the Fund) and money then owned by the Fund be deemed to be its own Custodian and
Custodian shall thereby be relieved of all duties and responsibilities pursuant
to this Agreement, other than the duty with respect to Securities which cannot
be delivered to the Fund to hold such Securities hereunder in accordance with
this Agreement.
ARTICLE X
MISCELLANEOUS
1. The Fund agrees to furnish to Custodian a new Certificate of
Authorized Persons in the event of any change in the then present Authorized
Persons. Until such new Certificate is received, Custodian shall be fully
protected in acting upon Certificates or Oral Instructions of such present
Authorized Persons.
2. Any notice or other instrument in writing, authorized or required
by this Agreement to be given to Custodian, shall be sufficiently given if
addressed to Custodian and received by it at its offices at Xxx Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, or at such other place as Custodian may from time to time
designate in writing.
3. Any notice or other instrument in writing, authorized or required
by this Agreement to be given to the Fund shall be sufficiently given if
addressed to the Fund and received by it at its offices at 0000 Xxxxxxxxx Xxxxx,
Xxxxxxxxxx XX, X0000-0000 or at such other place as the Fund may from time to
time designate in writing.
4. Each and every right granted to either party hereunder or under
any other document delivered hereunder or in connection herewith, or allowed it
by law or equity, shall be cumulative and may be exercised from time to time. No
failure on the part of either party to exercise, and no delay in exercising, any
right will operate as a waiver thereof, nor will any single or partial exercise
by either party of any right preclude any other or future exercise thereof or
the exercise of any other right.
5. In case any provision in or obligation under this Agreement shall
be invalid, illegal or unenforceable in any exclusive jurisdiction, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected thereby. This Agreement may not be amended or modified in
any manner except by a written agreement executed by both parties, except that
any amendment to the Schedule I hereto need be signed only by the Fund and any
amendment to Appendix I hereto need be signed only by Custodian. This Agreement
shall extend to and shall be binding upon the parties hereto, and their
respective successors and assigns; provided, however, that this Agreement shall
not be assignable by either party without the written consent of the other.
6. This Agreement shall be construed in accordance with the
substantive laws of the State of New York, without regard to conflicts of laws
principles thereof. The Fund and Custodian hereby consent to the jurisdiction of
a state or federal court situated in New York City, New York in connection with
any dispute arising hereunder. The Fund hereby irrevocably waives, to the
fullest extent permitted by applicable law, any objection which it may now or
hereafter have to the laying of venue of any such proceeding brought in such a
court and any claim that such proceeding brought in such a court has been
brought in an inconvenient forum. The Fund and Custodian each hereby irrevocably
waives any and all rights to trial by jury in any legal proceeding arising out
of or relating to this Agreement.
7. This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original, but such counterparts shall,
together, constitute only one instrument.
8. The Custodian is expressly put on notice of the limitation of
liability as set forth in the Declaration of Trust of those registered
investment companies which are business trusts and agrees that the obligations
and liabilities assumed by a registered investment company or any Series
pursuant to this Agreement, including, without limitation, any obligation or
liability to indemnify the Custodian, shall be limited in any case to the
relevant Fund and its assets and that the Custodian shall not seek satisfaction
of any such obligation from the shareholders of the relevant Fund, from any
other Fund or its shareholders or from the Trustees, Officers, employees or
agents of the registered investment company or Series, or any of them. In
addition, in connection with the discharge and satisfaction of any claim made by
the Custodian involving more than one Fund, the Trustees or Officers of such
Funds shall have the exclusive right to determine the appropriate allocations of
liability for any claim between or among the Funds.
9. The Bank hereby represents and warrants that it has implemented and
shall maintain appropriate measures designed to satisfy the requirements of
federal and New York law applicable to the Bank with respect to the
confidentiality of the portfolio holdings and transactions of each Fund. Upon
request, the Bank shall annually make available to each Fund such summaries or
audit reports, including any SAS 70 report, as the Bank generally makes
available to its similar customers.
IN WITNESS WHEREOF, the Funds and Custodian have caused this Agreement to
be executed by their respective officers, thereunto duly authorized, as of the
day and year first above written.
Each of the registered investment companies or
series thereof listed on Schedule II to this
Agreement
By: /s/ Xxxxxxx X. Xxxxxx
Title: Treasurer
THE BANK OF NEW YORK
By: /s/ Xxxxxx X. XxXxxx
Title: XXXXXX X. XxXXXX
MANAGING DIRECTOR
1
SCHEDULE I
CERTIFICATE OF AUTHORIZED PERSONS
(THE FUND - ORAL AND WRITTEN INSTRUCTIONS)
The undersigned hereby certifies the he is the duly elected and acting
Treasurer of the Funds, and further certifies that the following persons have
been duly authorized by each Funds' Board of Trustees/Directors to deliver
Certificates and Oral Instructions to The Bank of New York ("Custodian")
pursuant to the Custody Agreement between the Funds and Custodian dated June 7,
2005, and that the signatures appearing opposite their names are true and
correct:
Xxxxxx Xxxxxxx Trader /s/ Xxxxxx Xxxxxxx /s/ LC
Name Title Signature Initials
Xxxx Xxxxx Assistant Trader /s/ Xxxx Xxxxx /s/ ASC
Name Title Signature Initials
AVP, Trading
Xxxxx Xxxxxxx Operations Manager /s/ Xxxxx Xxxxxxx /s/ KC
Name Title Signature Initials
Xxxxxxx Xxxxxx Senior Trader /s/ Xxxxxxx Xxxxxx /s/ TG
Name Title Signature Initials
Xxxxxx Xxxx AVP, Senior Trader /s/ Xxxxxx X. Xxxx /s/ TLL
Name Title Signature Initials
Xxxx Xxxxxxxx AVP, Senior Trader /s/ Xxxx Xxxxxxxx /s/ KM
Name Title Signature Initials
Xxxxxx Xxxxx Senior Trader /s/ Xxxxxx Xxxxx /s/ JM
Name Title Signature Initials
Xxxxxxx Xxxxx VP, Senior Trader /s/ Xxxxxxx Xxxxx /s/ JP
Name Title Signature Initials
Xxxxxxx Xxxxxxxx Trader /s/ Xxxxxxx Xxxxxxxx /s/ CS
Name Title Signature Initials
Xxxxxxx Xxxx SVP, Head Trader /s/ Xxxxxxx Xxxx /s/ RT
Name Title Signature Initials
VP Fixed Income
Xxxxxxx Xxxxxxxxxx Trader /s/ Xxxxxxx Xxxxxxxxxx /s/ TT
Name Title Signature Initials
Xxxxxxx Xxxxxxx Asst. Trader /s/ Xxxxxxx Xxxxxxx /s/ PDB
Name Title Signature Initials
Xxxxx Xxxxx AVP, Senior Trader /s/ Xxxxx Xxxxx /s/ JG
Name Title Signature Initials
Rae Xxx Xxxx Xx. Trader, AVP /s/ Rae Xxx Xxxx /s/ RAR
Name Title Signature Initials
Xxxxxx Xxxxxx Sr. Trader, AVP /s/ Xxxxxx X. Xxxxxx /s/
Name Title Signature Initials
Trade Support
Xxxxxxxx Xxxxxx Associate /s/ Xxxxxxxx X. Xxxxxx /s/ MB
Name Title Signature Initials
Trade Support
Xxxx X. Till Associate /s/ Xxxx X. Till /s/ LCT
Name Title Signature Initials
Trade Support
Xxxxxx Xxxxxxx Associate /s/ Xxxxxx Xxxxxxx /s/ JV
Name Title Signature Initials
Xxxxxxxx X. Xxxxxx Senior Vice President /s/ Xxxxxxxx X. Xxxxxx /s/ JCC
Name Title Signature Initials
Xxxxxxx X. Xxxxxxxxxx Xx. Portfolio Manager /s/ Xxxxxxx Xxxxxxxxxx /s/ DAC
Name Title Signature Initials
Xxxxx X. Xxxx Portfolio Manager /s/ Xxxxx X. Xxxx /s/ SRH
Name Title Signature Initials
Portfolio Manager/
Xxxxxxx X. Xxxxxxx Analyst /s/ Xxxxxxx X. Xxxxxxx /s/ WRJ
Name Title Signature Initials
Xxxxxx X. Xxxxxx Portfolio Manager /s/ Xxxxxx X. Xxxxxx /s/ JMN
Name Title Signature Initials
CIO, SVP,
Xxxx Xx Xxxxxx Portfolio Manager /s/ Xxxx Xx Xxxxxx /s/ MJO
Name Title Signature Initials
Xxxxxxx Xxxxxxxx VP /s/ Xxxxxxx Xxxxxxxx /s/ MS
Name Title Signature Initials
Xxxxx Xxxxxxx Portfolio Manager /s/ Xxxxx Xxxxxxx /s/ PMW
Name Title Signature Initials
The following individuals shall be authorized to provide the Custodian with
Certificates and Instructions solely with regard to the payment of any expenses
or liability incurred by a Fund, including, but not limited to the following
payments for the account of the Fund: interest, taxes; management, accounting,
transfer agent and legal fees; and operating expenses of the Fund, whether or
not such expenses are to be in whole or part capitalized or treated as deferred
expenses.
Fund Tax Manager
Xxxxx X. Xxxxxxxxx AVP /s/ Xxxxx X. Xxxxxxxxx /s/ DCA
Name Title Signature Initials
Xxxxxxx X. Xxxxxxxxxx Fund Treasury Manager /s/ Xxxxxxx X. Xxxxxxxxxx/s/ KMA
Name Title Signature Initials
Xxxxx X. Xxxxx Tax Director /s/ Xxxxx X. Xxxxx /s/ KAA
Name Title Signature Initials
Xxxxxx X. Xxxxx, Xx. FFO, Director /s/ Xxxxxx X. Xxxxx, Xx. /s/ RJE
Name Title Signature Initials
Xxxxxxx Xxxxxx Fund Treasury Manager /s/ Xxxxxxx Xxxxxx /s/ AG
Name Title Signature Initials
Xxxxxxx X. XxXxxx Fund Treasury Manager /s/ Xxxxxxx X. XxXxxx /s/ CM
Name Title Signature Initials
Fund Treasury
Xxxxxxx X. Xxxxxx Director/VP /s/ Xxxxxxx X. Xxxxxx /s/ DMM
Name Title Signature Initials
Xxxxxxx X. Xxxxxxx Vice President /s/ Xxxxxxx X. Xxxxxxx /s/ RP
Name Title Signature Initials
Fund Treasury
Xxxxxxx X. Xxxxxx Manager/AVP /s/ Xxxxxxx X. Xxxxxx /s/ BLP
Name Title Signature Initials
Fund Treasury
Xxxxxxxx X. Xxxxx Manager/AVP /s/ Xxxxxxxx X. Xxxxx /s/ GMS
Name Title Signature Initials
Fund Tax
Xxxx X. Xxxxxx Manager/AVP /s/ Xxxx X. Xxxxxx /s/ SS
Name Title Signature Initials
Xxxxxxx X. Xxxxxx Fund Treasurer/SVP /s/ Xxxxxxx X. Xxxxxx /s/ RJT
Name Title Signature Initials
Fund Treasury
Xxxxxxx X. Xxxxxxxx Manager /s/ Xxxxxxx X. Xxxxxxxx /s/ TMY
Name Title Signature Initials
This certificate supersedes any certificate of Authorized Person you may
currently have on file.
[seal] By: /s/ Xxxxxxx X. Xxxxxx
Title: Treasurer
Date: June 7, 2005
2
SCHEDULE II
Federated Capital Reserves Fund a portfolio of Money Market Obligations Trust
Federated Government Reserves Fund a portfolio of Money Market Obligations Trust
Federated Municipal Trust a portfolio of Money Market Obligations Trust
3
APPENDIX I
THE BANK OF NEW YORK
ON-LINE COMMUNICATIONS SYSTEM (THE "SYSTEM")
TERMS AND CONDITIONS
1. License; Use. Upon delivery to an Authorized Person or a person
reasonably believed by Custodian to be an Authorized Person of the Fund of
software enabling the Fund to obtain access to the System (the "Software"),
Custodian grants to the Fund a personal, nontransferable and nonexclusive
license to use the Software solely for the purpose of transmitting Written
Instructions, receiving reports, making inquiries or otherwise communicating
with Custodian in connection with the Account(s). The Fund shall use the
Software solely for its own internal and proper business purposes and not in the
operation of a service bureau. Except as set forth herein, no license or right
of any kind is granted to the Fund with respect to the Software. The Fund
acknowledges that Custodian and its suppliers retain and have title and
exclusive proprietary rights to the Software, including any trade secrets or
other ideas, concepts, know-how, methodologies, or information incorporated
therein and the exclusive rights to any copyrights, trademarks and patents
(including registrations and applications for registration of either), or other
statutory or legal protections available in respect thereof. The Fund further
acknowledges that all or a part of the Software may be copyrighted or
trademarked (or a registration or claim made therefor) by Custodian or its
suppliers. The Fund shall not take any action with respect tot the Software
inconsistent with the foregoing acknowledgement, nor shall the Fund attempt to
decompile, reverse engineer or modify the Software. The Fund may not xxx, sell,
lease or provide, directly or indirectly, any of the Software of any portion
thereof to any other person or entity without Custodian's prior written consent.
The Fund may not remove any statutory copyright notice or other notice included
in the Software or on any media containing the Software. The Fund shall
reproduce any such notice on any reproduction of the Software and shall add any
statutory copyright notice or other notice to the Software or media upon
Custodian's request.
2. Equipment. The Fund shall obtain and maintain at its own cost and
expense all equipment and services, including but not limited to communications
services, necessary for it to utilize the Software and obtain access to the
System, and Custodian shall not be responsible for the reliability or
availability of any such equipment or services.
3. Proprietary Information. The Software, any data base and any
proprietary data, processes, information and documentation made available to the
Fund (other than which are or become part of the public domain or are legally
required to be made available to the public) (collectively, the "Information"),
are the exclusive and confidential property of Custodian or its suppliers. The
Fund shall keep the Information confidential by using the same care and
discretion that the Fund uses with respect to its own confidential property and
trade secrets, but not less than reasonable care. Upon termination of the
Agreement or the Software license granted herein for any reason, the Fund shall
return to Custodian any and all copies of the Information which are in its
possession or under its control.
4. Modifications. Custodian reserves the right to modify the Software
from time to time and the Fund shall install new releases of the Software as
Custodian may direct. The Fund agrees not to modify or attempt to modify the
Software without the Custodian's prior written consent. The Fund acknowledges
that any modifications to the Software, whether by the Fund or Custodian and
whether with or without Custodian's consent, shall become the property of
Custodian.
5. NO REPRESENTATIONS OR WARRANTIES. CUSTODIAN AND ITS MANUFACTURERS
AND SUPPLIERS MAKE NO WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE
SOFTWARE, SERVICES OR ANY DATABASE, EXPRESS OR IMPLIED, IN FACT OR IN LAW,
INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. THE FUND ACKNOWLEDGES THAT THE SOFTWARE, SERVICES AND ANY
DATABASE ARE PROVIDED "AS IS." IN NO EVENT SHALL CUSTODIAN OR ANY SUPPLIER BE
LIABLE FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT SPECIAL, OR CONSEQUENTIAL,
WHICH THE FUND MAY INCUR IN CONNECTION WITH THE SOFTWARE, SERVICES OR ANY
DATABASE, EVEN IF CUSTODIAN OR SUCH SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES. IN NO EVENT SHALL CUSTODIAN OR ANY SUPPLIER BE LIABLE FOR ACTS
OF GOD, MACHINE OR COMPUTER BREAKDOWN OR MALFUNCTION, INTERRUPTION OR
MALFUNCTION OF COMMUNICATION FACILITIES, LABOR DIFFICULTIES OR ANY OTHER SIMILAR
OR DISSIMILAR CAUSE BEYOND THEIR REASONABLE CONTROL.
6. Security; Reliance; Unauthorized Use. The Fund will cause all
persons utilizing the Software and System to treat all applicable user and
authorization codes, passwords and authentication keys with extreme care, and it
will establish internal control and safekeeping procedures to restrict the
availability of the same to persons duly authorized to give Instructions.
Custodian is hereby irrevocably authorized to act in accordance with and rely on
Instructions received by it through the System. The Fund acknowledges that it
is its sole responsibility to assure that only persons duly authorized use the
System and that Custodian shall not be responsible nor liable for any
unauthorized use thereof.
7. System Acknowledgements. Custodian shall acknowledge through the
System its receipt of each transmission communicated through the System, and in
the absence of such acknowledgment Custodian shall not be liable for any failure
to act in accordance with such transmission and the Fund may not claim that such
transmission was received by Custodian.
8. EXPORT RESTRICTIONS. EXPORT OF THE SOFTWARE IS PROHIBITED BY
UNITED STATES LAW. THE FUND MAY NOT UNDER ANY CIRCUMSTANCES RESELL, DIVERT,
TRANSFER, TRANSSHIP OR OTHERWISE DISPOSE OF THE SOFTWARE (IN ANY FORM) IN OR TO
ANY OTHER COUNTRY. IF CUSTODIAN DELIVERED THE SOFTWARE TO THE FUND OUTSIDE OF
THE UNITED STATES, THE SOFTWARE WAS EXPORTED FROM THE UNITED STATES IN
ACCORDANCE WITH THE EXPORTER ADMINISTRATION REGULATIONS. DIVERSION CONTRARY TO
U.S. LAW IS PROHIBITED. The Fund hereby authorizes Custodian to report its name
and address to government agencies to which Custodian is required to provide
such information by law.
9. ENCRYPTION. The Fund acknowledges and agrees that encryption may
not be available for every communication through the System, or for all data.
The Fund agrees that Custodian may deactivate any encryption features at any
time, without notice or liability to the Fund, for the purpose of maintaining,
repairing or troubleshooting the System or the Software.
4
JOINT TRADING ACCOUNT CUSTODY AGREEMENT
(REPURCHASE TRANSACTIONS)
Agreement made as of June 7, 2005, between the Funds listed on Schedule I
hereto (individually, a "Fund"; collectively, the "Funds") and The Bank of New
York (the "Custodian").
WITNESSETH
WHEREAS, Custodian is presently the custodian for each Fund pursuant to a
separate custody agreement between such Funds and Custodian (each, a "Custody
Agreement"; collectively, the "Custody Agreements"); and
WHEREAS, the Funds are permitted to enter into repurchase transactions
through joint trading accounts; and
WHEREAS, Custodian is willing to act as custodian of the assets of each
Fund maintained in joint trading accounts in accordance with the Custody
Agreements and this Agreement; and
WHEREAS, all capitalized terms used by not defined herein shall have the
meanings given them in the Custody Agreements;
NOW, THEREFORE, in consideration of the mutual promises hereinafter set
forth, the parties agree as follows:
1. The Funds hereby request Custodian to establish and maintain
certain joint trading accounts (the "Joint Trading Accounts") to be used by the
Funds for the purpose of engaging in repurchase transactions. Custodian agrees
to establish and maintain the Joint Trading Accounts and hold cash transferred
to the Joint Trading Account as provided herein.
2. On each business day that Funds intend to enter into repurchase
transactions through a Joint Trading Account, an Authorized Person shall on
behalf of the applicable Funds deliver to Custodian a Certificate or Written
Instructions disclosing each Fund's interest in the monies transferred to each
Joint Trading Account. Upon transfer on monies from the Joint Trading Account
against receipt of securities into Joint Trading Account or a similar Joint
Trading Account established by a subcustodial bank pursuant to repurchase
transactions ("Repo Assets"), Custodian shall confirm to each Fund the purchase
of its proportionate interest in the Repo Assets, and shall identify such
interest in Custodian's books and records as belonging to such Fund by including
the Funds' Certificate or Written Instructions in the books and records of all
appropriate Funds or otherwise. The following business day Custodian shall
transfer the monies received upon completion of repurchase transactions from
each Joint Trading Account or from a similar Joint Trading Account established
at a bank pursuant to a Subcustodial Undertaking in connection with a Master
Repurchase Agreement, plus any accrued income received, to each Fund's Account
in proportion to such Fund's interest in such repurchase transactions.
3. If Custodian in its sole discretion advances funds, or if there
shall arise for whatever reason an overdraft or other indebtedness in connection
with a Joint Trading Account, such advance, overdraft or indebtedness shall be
deemed a loan made by Custodian to a Fund to which such advance, overdraft or
indebtedness relates, payable on demand and bearing interest pursuant to the
terms of such Fund's Custody Agreement with Custodian. The Funds agree to
furnish to Custodian promptly (and in any event by the close of business on the
day of such advance, overdraft or indebtedness) with a Certificate or Written
Instructions identifying each Fund to which such advance, overdraft or
indebtedness relates, and the amount allocable to such Fund. In order to secure
repayment of each Fund's indebtedness to Custodian hereunder, each Fund hereby
agrees that Custodian shall have a continuing lien and security interest in and
to any property at any time held by it for the benefit of the Fund either
hereunder or under Such Fund's Custody Agreement with Custodian, or in which the
Fund may have an interest which is then in Custodian's possession or control or
in possession or control of any third party acting in Custodian's behalf,
including in its behalf as Custodian under the Fund's Custody Agreement with
Custodian. Each Fund authorizes Custodian, in its sole discretion, at any time
to charge any advance, overdraft or indebtedness together with interest due
thereon against any balance of accounts standing to the Fund's credit on the
books of Custodian, including those books maintained by Custodian in its
capacity as Custodian for the Fund under is Custody Agreement with the Fund.
Notwithstanding, anything in this Agreement to the contrary, provided that
Custodian and a Fund are parties to a Custodial Undertaking in Connection with
Master Repurchase Agreement (collectively, the "Custodial Undertakings"),
Custodian agrees that any securities held by Custodian in connection with a
repurchase agreement entered into by such Fund and subject to the Custodian
Undertakings shall not be subject to any security interest, lien or right of
setoff by Custodian or any third party claiming through Custodian and Custodian
shall not pledge, encumber, hypothecate, transfer, dispose of, or otherwise
grant any third party an interest in, any such securities.
3. It is expressly understood and agreed that in performing hereunder,
Custodian is relying solely upon information contained in Certificates and
Written Instructions received by it from time to time, has no independent
knowledge of the terms and conditions of any repurchase transactions entered by
or on behalf of any Funds, and shall have no duty to inquire into any of such
terms and conditions nor any valuation responsibilities (including xxxx-to-
market) with regard to securities and monies which are the subject of repurchase
transactions hereunder. Custodian's sole responsibility in settling
transactions through the Joint Trading Account shall be to receive and deliver
securities and monies in accordance with instructions contained in Certificates
and Written Instructions and to comply with paragraph 2 of this Agreement.
4. Each Fund hereby represents and warrants, which representations and
warranties shall be continuing and shall be deemed to be reaffirmed upon each
instruction given by each Fund, that
(a) its execution and delivery of this Agreement and its
performance hereunder has been duly authorized by its Board of Directors or
Board of Trustees (as the case may be) and constitutes is several, but not
joint, binding obligation;
(b) the person or persons executing this Agreement on its behalf
has and have been duly and properly authorized to do so;
(c) upon allocation of any advance, overdraft or indebtedness to
its account pursuant to paragraph 2 above, its total borrowings from all sources
(including Custodian) shall be in conformity with the requirements and
limitations set forth in the Investment Company Act of 1940, as amended, and its
Prospectus.
5. This Agreement is supplemental to the Custody Agreement between
Custodian and each Fund and the assets of each Fund shall be maintained and
administered by Custodian subject to the terms and conditions of the Custody
Agreement. In the event of any conflict between the terms and conditions of
this Agreement and the Custody Agreement of any Fund, the terms and conditions
of this Agreement shall govern and control.
6. This Agreement shall be construed in accordance with the laws of
the State of New York without giving effect to the conflict of law principles
thereof. This Agreement may not be amended or modified in any manner except by
a written instrument executed by each Fund and Custodian. This Agreement may be
terminated with respect to any Fund by either Custodian or such Fund upon thirty
(30) days prior written notice.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective officers, thereunto duly authorized, as of the day and year
first above written.
By: /s/ Xxxxxxx X. Xxxxxx
On behalf of each Fund listed on
Schedule I hereto
Title: Treasurer
THE BANK OF NEW YORK
By: /s/ Xxxxxx X. XxXxxx
Title: Managing Director
5
SCHEDULE I
Federated Capital Reserves Fund a portfolio of Money Market Obligations Trust
Federated Government Reserves Fund a portfolio of Money Market Obligations Trust
Federated Municipal Trust a portfolio of Money Market Obligations Trust
6
JOINT TRADING ACCOUNT
REPURCHASE TRANSACTION CONFIRMATION
The Bank of New York hereby confirms the purchase by each Fund identified
in the attached Certificate of its proportionate share of an undivided interest
in the securities transferred to the Joint Trading Account # , as such
interests are set forth in the attached Certificate.
Date:
THE BANK OF NEW YORK
By:
(Authorized Signature)
7
FUND ACCOUNTING AGREEMENT
AGREEMENT made as of this 7th day of June, 2005, by and between the
registered investment companies listed on Schedule I to this Agreement, as it
may be amended from time to time (each stand-alone registered investment company
and each series company of a registered investment company a "Fund" and
collectively the "Funds") and The Bank of New York, a New York corporation
authorized to do a banking business, having its principal place of business at
Xxx Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter called the "Bank").
WITNESSETH:
In consideration of the mutual agreements herein contained, the Funds and
the Bank hereby agree as follows:
1. The Funds hereby appoint the Bank to perform the duties hereinafter
set forth.
2. The Bank hereby accepts appointment and agrees to perform the
duties hereinafter set forth.
3. Subject to the provisions of paragraphs 4 and 5 below, the Bank
shall compute the net asset value per share of each class of shares of each Fund
listed on Schedule I hereto (all references to "Fund" shall be deemed to include
all classes of the Fund) and shall value the securities held by each Fund (the
"Securities") at such times and dates and in the manner specified in the then
currently effective registration statement or offering memorandum (the "Offering
Materials") of each Fund, except that notwithstanding any language in the
Offering Materials, in no event shall the Bank be required to determine, or have
any obligations with respect to, whether a market price represents any fair or
true value, nor to adjust any price to reflect any events or announcements,
including, without limitation, those with respect to the issuer thereof, it
being agreed that all such determinations and considerations shall be solely for
each Fund. However, the Bank agrees to incorporate into its calculation of a
Fund's net asset value any price or factor given by a Fund or by a third party
valuation service upon instruction by a Fund.
4. To the extent valuation of Securities or computation of a Fund's
net asset value as specified in the Fund's then currently effective Offering
Materials is at any time inconsistent with any applicable laws or regulations,
the Fund shall immediately so notify the Bank in writing and thereafter shall
either furnish the Bank at all appropriate times with the values of such
Securities and each Fund's net asset value, or subject to the prior approval of
the Bank, instruct the Bank in writing to value the Securities and compute each
Fund's net asset value in a manner which the Fund then represents in writing to
be consistent with all applicable laws and regulations. A Fund may also from
time to time, subject to the prior approval of the Bank. Instruct the Bank in
writing to compute the value of the Securities or a Fund's net asset value in a
manner other than as specified in paragraph 3 of this Agreement. By giving such
instruction, the Fund shall be deemed to have represented that such instruction
is consistent with all applicable laws and regulations and the then currently
effective Offering Materials of the Fund. The Fund shall have sole
responsibility for determining the method of valuation of Securities and the
method of computing each Fund's net asset value.
5. The Fund shall furnish the Bank with any and all instructions,
explanations, information, specifications and documentation as deemed reasonably
necessary by the Bank in the performance of its duties hereunder, including,
without limitation, the amounts or written formula for calculating the amounts
and times of accrual of Fund's liabilities and expenses. The Bank shall not be
required to include as a Fund's liabilities and expenses, nor as a reduction of
net asset value, any accrual for any federal, state, or foreign income taxes
unless the Fund shall have specified to the Bank the precise amount of the same
to be included in liabilities and expenses or used to reduce net asset value.
In calculating the prices for Securities the Bank will use the price services
authorized by an authorized person for a Fund listed on Appendix B to this
Agreement ("Authorized Pricing Services"). Such authorized person shall provide
the list of authorized pricing services to the Bank in a writing signed by such
authorized person substantially in the form of Appendix C to this Agreement.
The Bank shall be entitled to rely on the last Appendix C signed by an
authorized person actually received by the Bank. A Fund shall also furnish the
Bank with bid, offer, or market values of Securities if the Bank notifies the
Fund that same are not available to the Bank from a Fund's Authorized Pricing
Services. At any time and from time to time, a Fund also may furnish the Bank
with bid, offer, or market values of Securities and instruct the Bank to use
such information in its calculations hereunder. The Bank shall at no time be
required or obligated to commence or maintain any utilization of, or
subscriptions to, any securities pricing or similar service.
6. The Bank shall advise the Fund, the Fund's custodian and the Fund's
transfer agent of the net asset value of each Fund upon completion of the
computations required to be made by the Bank pursuant to this Agreement.
7. The Bank shall, as agent for the Fund, maintain and keep current
the books, accounts and other documents, if any, listed in Appendix A hereto and
made a part hereof, as such Appendix A may be amended from time to time. Such
books, accounts and other documents shall be made available upon reasonable
request for inspection by officers, employees and auditors of a Fund during the
Bank's normal business hours, and shall be preserved for a period of seven (7)
years. The Bank and the Fund's intend to enter into a Service Level Guidelines
Agreement, that may be amended from time to time by the parties, that will
outline the Fund's expectations with respect to specific services to be provided
by the Bank and the operational mechanics of providing such services.
8. All records maintained and preserved by the Bank pursuant to this
Agreement which a Fund is required to maintain and preserve in accordance with
the above-mentioned Rules shall be and remain the property of a Fund and shall
be surrendered to a Fund promptly upon request in the form in which such records
have been maintained and preserved. Upon reasonable request of a Fund, the Bank
shall provide in hard copy or electronic format, whichever the Bank shall elect,
any records included in any such delivery which are maintained by the Bank on a
computer disc, or are similarly maintained, and a Fund shall reimburse the Bank
for its expenses or providing the same.
9. The Bank, in performing the services required of it under the terms
of this Agreement, shall be entitled to rely fully on the accuracy and validity
of any and all instructions, explanations, information, specifications and
documentation furnished to it by the Fund and shall have no duty or obligation
to review the accuracy, validity or propriety of such instructions,
explanations, information, specifications or documentation, including, without
limitation, evaluations of Securities; the amounts or formula for calculating
the amounts and times of accrual of a Fund's liabilities and expenses; the
amounts receivable and the amounts payable on the sale or purchase of
Securities; the amounts receivable or amounts payable for the sale or redemption
of Fund shares effected by or on behalf of the Fund. In the event the Bank's
computations hereunder rely, in whole or in part, upon information, including,
without limitation, bid, offer or market values of Securities or other assets,
or accruals of interest or earnings thereon, from Authorized Pricing Services,
the Bank shall not be responsible for, under any duty to inquire into, or deemed
to make any assurances with respect to, the accuracy or completeness of such
information.
10. The Bank shall not be required to inquire into any valuation of
Securities or other assets by a Fund or any third party described in preceding
paragraph 9 hereof, even though the Bank in performing services similar to the
services provided pursuant to this Agreement for others may receive different
valuations of the same or different securities of the same issuers.
11. The Bank, in performing the services required of it under the terms
of this Agreement, shall not be responsible for determining whether any interest
accruable to a Fund is or will be actually paid, but will accrue such interest
until otherwise instructed by a Fund.
12. The Bank shall not be responsible or liable for any failure or
delay in the performance of its obligations under this Agreement arising out of
or caused, directly or indirectly, by circumstances beyond its reasonable
control, including without limitation, acts of God; earthquakes; fires; floods;
wars; civil or military disturbances; sabotage; epidemics; riots; interruptions;
loss, malfunctions of utilities, computer (hardware or software) or
communication services, accidents; labor disputes; acts of civil or military
authority or governmental actions. Nor shall the Bank be responsible for delays
or failures to supply the information or services specified in this Agreement
where such delays or failures are caused by the failure of any person(s) other
than the Bank to supply any instructions, explanations, information,
specifications or documentation deemed reasonably necessary by the Bank in the
performance of its duties under this Agreement.
13. No provision of this Agreement shall prevent the Bank from offering
services similar or identical to those covered by this Agreement to any other
corporations, associations or entities of any kid. Any and all operational
procedures, techniques and devices developed by the Bank in connection with the
performance of its duties and obligations under this Agreement, including those
developed in conjunction with a Fund, shall be and remain the property of the
Bank, and the Bank shall be free to employ such procedures, techniques and
devices in connection with the performance of any other contract with any other
person whether or not such contract is similar or identical to this Agreement.
14. The Bank may, with respect to questions of law, apply to and obtain
the advice and opinion of counsel to the independent trustees of a Fund or
counsel that is mutually agreed upon by a Fund and Bank and shall be entitled to
rely on the advice or opinion of such counsel.
15. The Bank shall be entitled to rely upon any oral instructions
received by the Bank and reasonably believed by the Bank to be given by or on
behalf of a Fund, even if the Bank subsequently receives written instructions
contradicting such oral instructions. The books and records of the Bank with
respect to the content of any oral instruction shall be binding and conclusive.
16. Notwithstanding any other provision in this Agreement, the Bank
shall have no duty or obligation with respect to, including without limitation,
any duty or obligation to determine, or advise or notify a Fund of: (a) the
taxable nature of any distribution or amount received or deemed received by, or
payable to, a Fund; (b) the taxable nature or effect on a Fund or its
shareholders of any corporate actions, class actions, tax reclaims, tax refunds,
or similar events; (c) the taxable nature or taxable amount of any distribution
or dividend paid, payable or deemed paid, by a Fund to its shareholders; or (d)
the effect under any federal, state, or foreign income tax laws of a Fund making
or not making any distribution or dividend payment, or any election with respect
thereto.
17. The Bank shall be held to a standard of reasonable care in carrying
out the provisions of this Agreement except as otherwise provided in this
Agreement. The Bank shall not be liable for any loss, damage or expense,
including counsel fees and other costs and expenses of a defense against any
claim or liability, resulting from, arising out of, or in connection with its
performance hereunder, including its actions or omissions, the incompleteness or
inaccuracy of any specifications or other information furnished by the Fund, or
for any delays caused by circumstances beyond the Bank's control, unless such
loss, damage or expense arises out of the negligence or willful misconduct of
the Bank. In no event shall the Bank be liable to the Company or any third
party for special, indirect, or consequential damages, or for lost profits or
loss of business, arising under or in connection with this Agreement, even if
previously informed of the possibility of such damages and regardless of the
form of action.
18. Without limiting the generality of the foregoing, the Fund shall
indemnify the Bank against and save the Bank harmless from any loss, damage or
expense, including counsel fees and other costs and expenses of a defense
against any claim or liability, arising from any one or more of the following:
(a) Errors in records or instructions, explanations, information,
specifications or documentation of any kind, as the case may be, supplied to the
Bank by any third party described in preceding paragraph 9 hereof or by or on
behalf of a Fund;
(b) Action or inaction taken or omitted to be taken by the Bank
pursuant to written or oral instructions of the Fund or otherwise without
negligence or willful misconduct;
(c) Any action taken or omitted to be taken by the Bank in good
faith in accordance with the advice or opinion of counsel for the independent
trustees of a Fund;
(d) Any improper use by a Fund or its agents, distributor or
investment advisor of any valuations or computations supplied by the Bank
pursuant to this Agreement;
(e) The method of valuation of the Securities, provided that such
valuation is carried out in accordance with preceding paragraph 5 of this
Agreement, and the method of computing each Fund's net asset value; or
(f) Any valuations of Securities or net asset value provided by
the Fund.
19. In consideration for all of the services to be performed by the
Bank as set forth herein the Bank shall be entitled to receive reimbursement for
all out-of-pocket expenses and such compensation as may be agreed upon in
writing from time to time between the Bank and the Fund.
20. Attached hereto as Appendix B is a list of persons duly authorized
to give any written or oral instructions, or written or oral specifications, by
or on behalf of the Fund. From time to time the Fund may deliver a new Appendix
B to add or delete any person and the Bank shall be entitled to rely on the last
Appendix B actually received by the Bank.
21. The Fund represents and warrants to the Bank that it has all
requisite power to execute and deliver this Agreement, to give any written or
oral instructions contemplated hereby, and to perform the actions or obligations
contemplated to be performed by it hereunder, and has taken all necessary action
to authorize such execution, delivery, and performance.
22. The Bank represents and warrants to each Fund that:
(a) it has all requisite powers to execute and deliver this
Agreement and to perform the actions or obligations contemplated to be performed
by it hereunder, and has taken all necessary action to authorize such execution,
delivery and performance;
(b) it is conducting is business in substantial compliance with
all applicable laws and requirements, both state and federal, and has obtained
all regulatory licenses, approvals and consents necessary to carry on its
business as now conducted.
(c) In connection with the Funds' obligations under Rule 38a-1 of
the 1940 Act the Bank agrees as follows:
(1) the Bank agrees to reasonably cooperate with the Funds and the
Funds' Chief Compliance Officer in the administration of the Funds'
compliance program ("Compliance Program") as required by the
Securities an Exchange Commission ("SEC");
(2) the Bank has implemented and maintains policies and procedures
reasonably designed to prevent, detect and promptly correct any
violations of Federal Securities Laws with respect to services the
Bank provides to the Funds ("Compliance Procedures");
(3) the Bank will provide summaries of such Compliance Procedures
that may affect in any material respect, the services provided
hereunder by the Bank to the Funds;
(4) the Bank periodically reviews the adequacy of such Compliance
Procedures and the effectiveness of their implementation and upon
the request of a Fund, will provide the then current internal
between such reviews;
(5) in the event that an officer or employee of the Bank
administering this Agreement has actual knowledge of the occurrence
of a "Material Compliance Matter" (as defined in Rule 38a-1(e)(2))
which the Bank reasonably believes is related to or will affect the
Fund, the Bank will, if permitted by law and the Bank's regulators,
notify the Fund of such occurrence;
(6) except where prohibited by law, regulations or rule or as may
be directed or instructed by the Bank's regulators, the Bank agrees
to notify the Funds following quarter-end of any inspections by, or
other inquiries received from, the SEC or any other regulatory or
law enforcement agency after the date of this certification, which
relate to the services provided by the Bank to the Funds hereunder.
For the avoidance of doubt, such notification obligation shall be
satisfied if the notice is contained in any publicly available
regulatory filing.
(d) The Bank will maintain throughout the term of this Agreement,
such contingency plans as it reasonably believes to be necessary and appropriate
to recover its operations from the occurrence of a disaster and which are
consistent with any statute or regulations to which it is subject that imposes
business resumption and contingency planning standards. The Bank agrees to
provide the Funds with a summary of its contingency plan as it relates to the
systems used to provide the services hereunder and to provide the Funds with
periodic updates of such summary upon the Funds' reasonable request.
23. This Agreement shall not be assignable by a Fund without the prior
written consent of the Bank, or by the Bank without the prior written consent of
each Fund.
24. Either of the parties hereto may terminate this Agreement by giving
the other party a notice in writing specifying the date of such termination,
which shall not be less than ninety (90) days after the date of giving such
notice. Upon the date set forth in such notice, the Bank shall deliver to the
Fund all records then the property of the Fund and, upon such delivery, the Bank
shall be relieved of all duties and responsibilities under this Agreement.
25. This Agreement may not be amended or modified in any manner except
by written agreement executed on behalf of both parties hereto.
26. All laws and rules of construction of the State of New York (other
than those relating to choice of laws) shall govern the rights, duties and
obligations of the parties hereto. The Fund and the Bank hereby consent to the
exclusive jurisdiction of a state or federal court situated in New York City,
New York in connection with any dispute arising hereunder. The Fund hereby
irrevocably waives, to the fullest extent permitted by applicable law, any
objection which it may now or hereafter have to the laying of venue of any such
proceeding brought in such a court and any claim that such proceeding brought in
such a court has been brought in an inconvenient forum. The Fund and the Bank
each hereby irrevocably waives any and all rights to trial by jury in any legal
proceeding arising out of or relating to this Agreement.
27. The performance and provisions of this Agreement are intended to
benefit only the Bank and each Fund, and no rights shall be granted to any other
person by virtue of this Agreement.
28. The Bank hereby represents and warrants that it has implemented and
shall maintain appropriate measures designed to satisfy the requirements of
federal and New York law applicable to the Bank with respect to the
confidentiality of the portfolio holdings and transactions of each Fund. Upon
request, the Bank shall annually make available to each such Fund such summaries
or audit reports, including any SAS 70 report, as the Bank generally makes
available to its similar customers.
8
29. The Bank is expressly put on notice of the limitation of liability
as set forth in the Declaration of Trust of those registered investment
companies which are business trusts and agrees that the obligations and
liabilities assumed by a registered investment company or any Fund pursuant to
this Agreement, including without limitation, any obligations or liability to
indemnify the Bank, shall be limited in any case to the relevant Fund and its
assets and that the Bank shall not seek satisfaction of any such obligation from
the shareholders of the relevant Fund, from any other Fund nor its shareholders,
from the Trustees, Officers, employees or agents of the registered investment
company or Fund, or any of them. In addition, in connection with the discharge
and satisfaction of any claim made by the Bank involving more than one Fund, the
Trustees or Officers of such Funds shall have the exclusive right to determine
the appropriate allocations of liability for any claim between or among the
Funds.
Each of the registered investment
companies or series thereof listed on
Schedule I to this Agreement
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Treasurer
Attest
THE BANK OF NEW YORK
By: /s/ Xxxxxx X. XxXxxx
Name: Xxxxxx X. XxXxxx
Title: Managing Director
Attest: /s/ Xxxxxx X. Xxxxxxxx, Jr.
9
APPENDIX A TO FUND ACCOUNTING AGREEMENT
BETWEEN
THE BANK OF NEW YORK
AND
THE FEDERATED FUNDS
I. The Bank of New York (the "Bank"), as agent for The Federated Funds
(the "Fund"), shall maintain the following records on a daily basis for each
Series.
1. Report of priced portfolio securities
2. Statement of net asset value per share
II. The Bank shall maintain the following records on a monthly basis
for each Series:
1. General Ledger
2. General Journal
3. Cash Receipts Journal
4. Cash Disbursements Journal
5. Subscriptions Journal
6. Redemptions Journal
7. Accounts Receivable Reports
8. Accounts Payable Reports
9. Open Subscriptions/Redemption Reports
10. Transaction (Securities) Journal
11. Broker Net Trades Reports
III. The Bank shall prepare a Holdings Ledger on a quarterly basis, and
a Buy-Sell Ledger (Broker's Ledger) on a semiannual basis for each Series.
Schedule D shall be produced on an annual basis for each Series.
The above reports may be printed according to any other required
frequency to meet the requirements of the Internal Revenue Service, the
Securities and Exchange Commission and the Fund's Auditors.
IV. For internal control purposes, the Bank uses the Account Journals
provided by The Bank of New York Custody System to record daily settlements of
the following for each Series:
1. Securities bought
2. Securities sold
3. Interest received
4. Dividends received
5. Capital stock sold
6. Capital stock redeemed
7. Other income and expenses
All portfolio purchases for the Fund are recorded to reflect expected
maturity value and total cost including any prepaid interest.
00
XXXXXXXX X
I, Xxxxxxx Xxxxxx, the duly elected Treasurer of the Funds, do hereby
certify in such capacity that:
The following individuals signatures set forth opposite their respective
names are their true and correct signatures. Each such person is authorized to
give written or oral instructions or written or oral specifications by or on
behalf of the Fund to the Bank.
Name Signature Initials
Xxxxx X. Xxxxxxxxx /s/ Xxxxx X. Xxxxxxxxx /s/ DCA
Xxxxxxx X. Xxxxxxxxxx /s/ Xxxxxxx X. Xxxxxxxxxx /s/ KMA
Xxxxx X. Xxxxx /s/ Xxxxx X. Xxxxx /s/ KAA
Xxxxxx X. Xxxxx, Xx. /s/ Xxx Xxxxx /s/ RJE
Xxxxxxx Xxxxxx /s/ Xxxxxxx Xxxxxx /s/ AG
Xxxxxxx X. XxXxxx /s/ Xxxxxxx XxXxxx /s/ CM
Xxxxxxx X. Xxxxxx /s/ Xxxxxxx X. Xxxxxx /s/ bmolini
Xxxxxxx X. Xxxxxxx /s/ Xxxxxxx X. Xxxxxxx /s/ RP
Xxxxxxx X. Xxxxxx /s/ Xxxxxxx X. Xxxxxx /s/ BLP
Xxxxxxxx X. Xxxxx /s/ Xxxxxxxx X. Xxxxx /s/ GMS
Xxxx X. Xxxxxx /s/ Xxxx Xxxxxx /s/ SS
Xxxxxxx X. Xxxxxx /s/ Xxxxxxx X. Xxxxxx /s/ RJT
Xxxxxxx X. Xxxxxxxx /s/ Xxxxxxx X. Xxxxxxxx /s/ TMY
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APPENDIX C
PRICING AUTHORIZATION MATRIX
Security Primary Secondary Tertiary Pricing Pricing
Type Source Source Source Logic Default
Logic
Fixed
Income
Money FT Inter-
Market active Un-rounded
Securities Data Broker N/A Bid N/A
Explanation of Fields
Primary Source: Indicate the primary source for prices for the
security type. If an Investment Manager is a pricing
source, please specify explicitly.
Secondary Source: Indicate the secondary source for prices for the
security type. If an Investment Manager is a pricing
source, please specify explicitly.
Tertiary Source: Indicate the tertiary (3rd level) source for prices
for the security type. If an Investment Manager is a
pricing source, please specify explicitly.
Pricing Logic: Indicate the price type to be referenced for the
security type: Ask, Bid, Close, Evaluated, Last,
Etc.
Pricing Default Logic: Indicate the price type to be referenced for the
security type: Ask, Bid, Close, Evaluated, Last,
Etc. in the instance where the preferred price type
is not available.
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SCHEDULE I
Federated Capital Reserves Fund a portfolio of Money Market Obligations Trust
Federated Government Reserves Fund a portfolio of Money Market Obligations Trust
Federated Municipal Trust a portfolio of Money Market Obligations Trust
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FEDERATED INVESTORS
ACCOUNTING, ADMINISTRATION AND CUSTODY FEE SCHEDULE
EFFECTIVE JUNE 13, 2005
FUND ACCOUNTING AND ADMINISTRATION
(Reserved)
DOMESTIC CUSTODY (U.S. SECURITIES PROCESSING)
SAFEKEEPING, INCOME COLLECTION, TRANSACTION PROCESSING, ACCOUNT ADMINISTRATION
0.25 of a basis point per annum on the average net assets of the Fund.
U.S. SECURITY TRANSACTION CHARGES (PER TRANSACTION):
$4.50 DTC/FRB Book Entry Settlements
$4.00 Repurchase Agreements (each leg)
$5.00 Time Deposits
$5.00 Maturities
$20.00 Physical Settlement, Euroclear, Options, and Futures Transactions
$5.00 Paydowns
$4.00 Wire Transfers/Checks (not related to securities settlements)
$2.00 Interfund/Account Transactions
MANUAL INSTRUCTION SURCHARGE
Transactions instructed in a manner which does not facilitate Straight Through
Processing will incur an additional $15 per transaction
OUT-OF-POCKET
In addition to the above fee schedule, Out of Pocket expenses will be charged as
incurred. These charges would include but are not limited to:
Securities pricing
Custom electronic interfaces and/or programming beyond normal and
customary system development associated with conversion
Local taxes, stamp duties or other local duties and assessments stock
exchange fees, postage and insurance for shipping, facsimile reporting,
extraordinary telecommunications fees or other unusual expenses which are
unique to a country in the funds are investing.
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COMPENSATING BALANCE ARRANGEMENT
(Reserved)
FEDERATED INVESTORS THE BANK OF NEW YORK
ACCEPTED BY:/s/ Xxxxxxx X. Xxxxxx ACCEPTED BY:/s/ Xxxxxx X. XxXxxx
NAME: Xxxxxxx X. Xxxxxx NAME: Xxxxxx X. XxXxxx
TITLE: Treasurer TITLE: Managing Director
DATE: May 25, 2005 DATE: May 23, 2005
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LIST OF FUNDS TAX ID NUMBER
Federated Capital Reserves Fund, a portfolio of 00-0000000
Money Market Obligations Trust
Federated Government Reserves Fund, a portfolio of 00-0000000
Money Market Obligations Trust
Federated Municipal Trust, a portfolio of 00-0000000
Money Market Obligations Trust
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