MASTER CUSTODIAN AGREEMENT
--------------------------
This Agreement is made as of June 29, 2001 by and among each management
investment company identified on Appendix A hereto (each such management
investment company and each management investment company made subject to this
Agreement in accordance with Section 17.5 below, shall hereinafter be referred
to as (the "Fund"), and STATE STREET BANK and TRUST COMPANY, a Massachusetts
trust company (the "Custodian"),
WITNESSETH:
WHEREAS, each Fund may or may not be authorized to issue shares of
common stock or shares of beneficial interest in separate series ("Shares"),
with each such series representing interests in a separate portfolio of
securities and other assets;
WHEREAS, each Fund so authorized intends that this Agreement be
applicable to each of its series set forth on Appendix A hereto (such series
together with all other series subsequently established by the Fund and made
subject to this Agreement in accordance with Section 17.6 below, shall
hereinafter be referred to as the "Portfolio(s)").
WHEREAS, each Fund not so authorized intends that this Agreement be
applicable to it and all references hereinafter to one or more "Portfolio(s)"
shall be deemed to refer to such Fund(s); and
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter contained, the parties hereto agree as follows:
SECTION 1. EMPLOYMENT OF CUSTODIAN AND PROPERTY TO BE HELD BY IT
-----------------------------------------------------
Each Fund hereby employs the Custodian as a custodian of assets of the
Portfolios, including securities which the Fund, on behalf of the applicable
Portfolio, desires to be held in places within the United States ("domestic
securities") and securities it desires to be held outside the United States
("foreign securities"). The Custodian shall not be responsible for any property
of a Portfolio which is not received by it or which is delivered out in
accordance with Proper Instructions (as such term is defined in Section 7
hereof) including, without limitation, Portfolio property (i) held by brokers,
private bankers or other entities on behalf of the Portfolio (each a "Local
Agent"), (ii) held by Special Sub-Custodians (as such term is defined in Section
5 hereof), (iii) held by entities which have advanced monies to or on behalf of
the Portfolio and which have received Portfolio property as security for such
advance(s) (each a "Pledgee"), or (iv) delivered or otherwise removed from the
custody of the Custodian (a) in connection with any Free Trade (as such term is
hereinafter defined) or (b) pursuant to Special Instructions (as such term is
defined in Section 7 hereof). With respect to uncertificated shares (the
"Underlying Shares") of registered "investment companies" (as defined in Section
3(a)(1) of the Investment Company Act of 1940, as amended (the "1940 Act")),
whether in the same "group of investment companies" (as defined in Section
12(d)(1)(G)(ii) of the 0000 Xxx) or otherwise, including pursuant to Section
12(d)(1)(F) of the 1940 Act (hereinafter sometimes referred to as the
"Underlying Portfolios") the holding of confirmation statements that identify
the shares as being recorded in the Custodian's name on behalf of the Portfolios
will be deemed custody for purposes hereof.
Upon receipt of Proper Instructions, the Custodian shall on behalf of the
applicable Portfolio(s) from time to time employ one or more sub-custodians
located in the United States, but only in accordance with an applicable vote by
the Board of Trustees or the Board of Directors of the Fund (as appropriate, and
in each case, the "Board") on behalf of the applicable Portfolio(s), and
provided that the Custodian shall have no more or less responsibility or
liability to any Fund on account of any actions or omissions of any
sub-custodian so employed than any such sub-custodian has to the Custodian. The
Custodian may employ as sub-custodian for each Fund's foreign securities on
behalf of the applicable Portfolio(s) the foreign banking institutions and
foreign securities depositories designated in Schedules A and B hereto, but only
in accordance with the applicable provisions of Sections 3 and 4 hereof.
SECTION 2. DUTIES OF THE CUSTODIAN WITH RESPECT TO PROPERTY OF THE PORTFOLIOS
------------------------------------------------------------------
TO BE HELD IN THE UNITED STATES
-------------------------------
SECTION 2.1 HOLDING SECURITIES. The Custodian shall hold and physically
------------------
segregate for the account of each Portfolio all non-cash property, to be held by
it in the United States, including all domestic securities owned by such
Portfolio other than (a) securities which are maintained pursuant to Section 2.8
in a clearing agency which acts as a securities depository or in a book-entry
system authorized by the U.S. Department of the Treasury (each, a "U.S.
Securities System") and (b) Underlying Shares owned by each Fund which are
maintained pursuant to Section 2.10 hereof in an account with State Street Bank
and Trust Company or such other entity which may from time to time act as a
transfer agent for the Underlying Portfolios and with respect to which the
Custodian is provided with Proper Instructions (the "Underlying Transfer
Agent").
SECTION 2.2 DELIVERY OF SECURITIES. The Custodian shall release and
----------------------
deliver domestic securities owned by a Portfolio held by the Custodian, in a
U.S. Securities System account of the Custodian or in an account at the
Underlying Transfer Agent, only upon receipt of Proper Instructions on behalf of
the applicable Portfolio, which may be continuing instructions when deemed
appropriate by the parties, and only in the following cases:
1) Upon sale of such securities for the account of the Portfolio and
receipt of payment therefor;
2) Upon the receipt of payment in connection with any repurchase
agreement related to such securities entered into by the
Portfolio;
3) In the case of a sale effected through a U.S. Securities System, in
accordance with the provisions of Section 2.8 hereof;
4) To the depository agent in connection with tender or other
similar offers for securities of the Portfolio;
2.
5) To the issuer thereof or its agent when such securities are
called, redeemed, retired or otherwise become payable;
provided that, in any such case, the cash or other
consideration is to be delivered to the Custodian;
6) To the issuer thereof, or its agent, for transfer into the
name of the Portfolio or into the name of any nominee or
nominees of the Custodian or into the name or nominee name of
any agent appointed pursuant to Section 2.7 or into the name
or nominee name of any sub-custodian appointed pursuant to
Section 1; or for exchange for a different number of bonds,
certificates or other evidence representing the same aggregate
face amount or number of units; provided that, in any such
case, the new securities are to be delivered to the Custodian;
7) Upon the sale of such securities for the account of the
Portfolio, to the broker or its clearing agent, against a
receipt, for examination in accordance with "street delivery"
custom; provided that in any such case, the Custodian shall
have no responsibility or liability for any loss arising from
the delivery of such securities prior to receiving payment for
such securities except as may arise from the Custodian's own
negligence or willful misconduct;
8) For exchange or conversion pursuant to any plan of merger,
consolidation, recapitalization, reorganization or
readjustment of the securities of the issuer of such
securities, or pursuant to provisions for conversion contained
in such securities, or pursuant to any deposit agreement;
provided that, in any such case, the new securities and cash,
if any, are to be delivered to the Custodian;
9) In the case of warrants, rights or similar securities, the
surrender thereof in the exercise of such warrants, rights or
similar securities or the surrender of interim receipts or
temporary securities for definitive securities; provided that,
in any such case, the new securities and cash, if any, are to
be delivered to the Custodian;
10) For delivery in connection with any loans of securities made
by the Portfolio (a) against receipt of collateral as agreed
from time to time by the Fund on behalf of the Portfolio,
except that in connection with any loans for which collateral
is to be credited to the Custodian's account in the book-entry
system authorized by the U.S. Department of the Treasury, the
Custodian will not be held liable or responsible for the
delivery of securities owned by the Portfolio prior to the
receipt of such collateral or (b) to the lending agent, or the
lending agent's custodian, in accordance with written Proper
Instructions (which may not provide for the receipt by the
Custodian of collateral therefor) agreed upon from time to
time by the Custodian and the Fund;
11) For delivery as security in connection with any borrowing by a
Fund on behalf of a Portfolio requiring a pledge of assets by
the Fund on behalf of such Portfolio;
3.
12) For delivery in accordance with the provisions of any
agreement among the Fund on behalf of the Portfolio, the
Custodian and a broker-dealer registered under the Securities
Exchange Act of 1934 (the "Exchange Act") and a member of The
National Association of Securities Dealers, Inc. (the "NASD"),
relating to compliance with the rules of The Options Clearing
Corporation and of any registered national securities
exchange, or of any similar organization or organizations,
regarding escrow or other arrangements in connection with
transactions by the Fund on behalf of a Portfolio;
13) For delivery in accordance with the provisions of any
agreement among a Fund on behalf of the Portfolio, the
Custodian, and a futures commission merchant registered under
the Commodity Exchange Act, relating to compliance with the
rules of the Commodity Futures Trading Commission (the "CFTC")
and/or any contract market, or any similar organization or
organizations, regarding account deposits in connection with
transactions by the Fund on behalf of a Portfolio;
14) Upon the sale or other delivery of such investments
(including, without limitation, to one or more (a) Special
Sub-Custodians or (b) additional custodians appointed by a
Fund, and communicated to the Custodian from time to time via
a writing duly executed by an authorized officer of such Fund,
for the purpose of engaging in repurchase agreement
transaction(s), each a "Repo Custodian"), and prior to receipt
of payment therefor, as set forth in written Proper
Instructions (such delivery in advance of payment, along with
payment in advance of delivery made in accordance with Section
2.6(7), as applicable, shall each be referred to herein as a
"Free Trade"), provided that such Proper Instructions shall
set forth (a) the securities of the Portfolio to be delivered
and (b) the person(s) to whom delivery of such securities
shall be made;
15) Upon receipt of instructions from the Fund's transfer agent
(the "Transfer Agent") for delivery to such Transfer Agent or
to the holders of Shares in connection with distributions in
kind, as may be described from time to time in the currently
effective prospectus and statement of additional information
of the Fund related to the Portfolio (the "Prospectus"), in
satisfaction of requests by holders of Shares for repurchase
or redemption;
16) In the case of a sale processed through the Underlying
Transfer Agent or Underlying Shares, in accordance with
Section 2.10 hereof; and
17) For any other purpose, but only upon receipt of Proper
Instructions from the Fund on behalf of the applicable
Portfolio specifying (a) the securities of the Portfolio to be
delivered and (b) the person(s) to whom delivery of such
securities shall be made.
SECTION 2.3 REGISTRATION OF SECURITIES. Domestic securities held by the
--------------------------
Custodian (other than bearer securities) shall be registered in the name of the
Portfolio or in the name of any
4.
nominee of a Fund on behalf of the Portfolio or of any nominee of the Custodian
which nominee shall be assigned exclusively to the Portfolio, unless the Fund
has authorized in writing the appointment of a nominee to be used in common with
other registered management investment companies having the same investment
adviser as the Portfolio, or in the name or nominee name of any agent appointed
pursuant to Section 2.7 or in the name or nominee name of any sub-custodian
appointed pursuant to Section 1. All securities accepted by the Custodian on
behalf of the Portfolio under the terms of this Agreement shall be in "street
name" or other good delivery form. If, however, a Fund directs the Custodian to
maintain securities in "street name", the Custodian shall utilize its best
efforts only to timely collect income due the Fund on such securities and to
notify the Fund on a best efforts basis only of relevant corporate actions
including, without limitation, pendency of calls, maturities, tender or exchange
offers.
SECTION 2.4 BANK ACCOUNTS. The Custodian shall open and maintain a
-------------
separate bank account or accounts in the United States in the name of each
Portfolio of each Fund, subject only to draft or order by the Custodian acting
pursuant to the terms of this Agreement, and shall hold in such account or
accounts, subject to the provisions hereof, all cash received by it from or for
the account of the Portfolio, other than cash maintained by the Portfolio in a
bank account established and used in accordance with Rule 17f-3 under the 1940
Act. Funds held by the Custodian for a Portfolio may be deposited by it to its
credit as Custodian in the banking department of the Custodian or in such other
banks or trust companies as it may in its discretion deem necessary or
desirable; provided, however, that every such bank or trust company shall be
qualified to act as a custodian under the 1940 Act and that each such bank or
trust company and the funds to be deposited with each such bank or trust company
shall on behalf of each applicable Portfolio be approved by vote of a majority
of the Board. Such funds shall be deposited by the Custodian in its capacity as
Custodian and shall be withdrawable by the Custodian only in that capacity.
SECTION 2.5 COLLECTION OF INCOME. Except with respect to Portfolio
--------------------
property released and delivered pursuant to Section 2.2(14) or purchased
pursuant to Section 2.6(7), and subject to the provisions of Section 2.3, the
Custodian shall collect on a timely basis all income and other payments with
respect to registered domestic securities held hereunder to which each Portfolio
shall be entitled either by law or pursuant to custom in the securities
business, and shall collect on a timely basis all income and other payments with
respect to bearer domestic securities if, on the date of payment by the issuer,
such securities are held by the Custodian or its agent thereof and shall credit
such income, as collected, to such Portfolio's custodian account. Without
limiting the generality of the foregoing, the Custodian shall detach and present
for payment all coupons and other income items requiring presentation as and
when they become due and shall collect interest when due on securities held
hereunder. Income due each Portfolio on securities loaned pursuant to the
provisions of Section 2.2 (10) shall be the responsibility of the applicable
Fund. The Custodian will have no duty or responsibility in connection therewith,
other than to provide the Fund with such information or data as may be necessary
to assist the Fund in arranging for the timely delivery to the Custodian of the
income to which the Portfolio is properly entitled.
5.
SECTION 2.6 PAYMENT OF FUND MONIES. Upon receipt of Proper Instructions
----------------------
on behalf of the applicable Portfolio, which may be continuing instructions when
deemed appropriate by the parties, the Custodian shall pay out monies of a
Portfolio in the following cases only:
1) Upon the purchase of domestic securities, options, futures
contracts or options on futures contracts for the account of
the Portfolio but only (a) against the delivery of such
securities or evidence of title to such options, futures
contracts or options on futures contracts to the Custodian (or
any bank, banking firm or trust company doing business in the
United States or abroad which is qualified under the 1940 Act
to act as a custodian and has been designated by the Custodian
as its agent for this purpose) registered in the name of the
Portfolio or in the name of a nominee of the Custodian
referred to in Section 2.3 hereof or in proper form for
transfer; (b) in the case of a purchase effected through a
U.S. Securities System, in accordance with the conditions set
forth in Section 2.8 hereof; (c) in the case of a purchase of
Underlying Shares, in accordance with the conditions set forth
in Section 2.10 hereof; (d) in the case of repurchase
agreements entered into between the applicable Fund on behalf
of a Portfolio and the Custodian, or another bank, or a
broker-dealer which is a member of NASD, (i) against delivery
of the securities either in certificate form or through an
entry crediting the Custodian's account at the Federal Reserve
Bank with such securities or (ii) against delivery of the
receipt evidencing purchase by the Portfolio of securities
owned by the Custodian along with written evidence of the
agreement by the Custodian to repurchase such securities from
the Portfolio; or (e) for transfer to a time deposit account
of the Fund in any bank, whether domestic or foreign; such
transfer may be effected prior to receipt of a confirmation
from a broker and/or the applicable bank pursuant to Proper
Instructions from the Fund as defined herein;
2) In connection with conversion, exchange or surrender of
securities owned by the Portfolio as set forth in Section
2.2 hereof;
3) For the redemption or repurchase of Shares issued as set forth
in Section 6 hereof;
4) For the payment of any expense or liability incurred by the
Portfolio, including but not limited to the following payments
for the account of the Portfolio: 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;
5) For the payment of any dividends on Shares declared pursuant
to the Fund's articles of incorporation or organization and
by-laws or agreement or declaration of trust, as applicable,
and Prospectus (collectively, "Governing Documents");
6) For payment of the amount of dividends received in respect of
securities sold short;
6.
7) Upon the purchase of domestic investments including, without
limitation, repurchase agreement transactions involving
delivery of Portfolio monies to Repo Custodian(s), and prior
to receipt of such investments, as set forth in written Proper
Instructions (such payment in advance of delivery, along with
delivery in advance of payment made in accordance with Section
2.2(14), as applicable, shall each be referred to herein as a
"Free Trade"), provided that such Proper Instructions shall
also set forth (a) the amount of such payment and (b) the
person(s) to whom such payment is made; and
8) For any other purpose, but only upon receipt of Proper
Instructions from the Fund on behalf of the Portfolio
specifying (a) the amount of such payment and (b) the
person(s) to whom such payment is to be made.
SECTION 2.7 APPOINTMENT OF AGENTS. The Custodian may at any time or
---------------------
times in its discretion appoint (and may at any time remove) any other bank or
trust company which is itself qualified under the 1940 Act to act as a
custodian, as its agent to carry out such of the provisions of this Section 2 as
the Custodian may from time to time direct; provided, however, that the
appointment of any agent shall not relieve the Custodian of its responsibilities
or liabilities hereunder. The Underlying Transfer Agent shall not be deemed an
agent or subcustodian of the Custodian for purposes of this Section 2.7 or any
other provision of this Agreement.
SECTION 2.8 DEPOSIT OF FUND ASSETS IN U.S. SECURITIES SYSTEMS. The
---------------------------------------------------
Custodian may deposit and/or maintain securities owned by a Portfolio in a U.S.
Securities System subject to the following provisions:
1) The Custodian may keep securities of the Portfolio in a U.S.
Securities System provided that such securities are
represented in an account of the Custodian in the U.S.
Securities System (the "U.S. Securities System Account") which
account shall not include any assets of the Custodian other
than assets held as a fiduciary, custodian or otherwise for
customers;
2) The records of the Custodian with respect to securities of the
Portfolio which are maintained in a U.S. Securities System
shall identify by book-entry those securities belonging to the
Portfolio;
3) The Custodian shall pay for securities purchased for the
account of the Portfolio upon (a) receipt of advice from the
U.S. Securities System that such securities have been
transferred to the U.S. Securities System Account and (b) the
making of an entry on the records of the Custodian to reflect
such payment and transfer for the account of the Portfolio.
The Custodian shall transfer securities sold for the account
of the Portfolio upon (i) receipt of advice from the U.S.
Securities System that payment for such securities has been
transferred to the U.S. Securities System Account and (ii) the
making of an entry on the records of the Custodian to reflect
such transfer and payment for the account of the Portfolio.
Copies of all advices
7.
from the U.S. Securities System of transfers of securities for
the account of the Portfolio shall identify the Portfolio, be
maintained for the Portfolio by the Custodian and be provided
to the Fund at its request. Upon request, the Custodian shall
furnish the Fund confirmation of each transfer to or from the
account of the Portfolio in the form of a written advice or
notice and shall furnish to the Fund copies of daily
transaction sheets reflecting each day's transactions in the
U.S. Securities System for the account of the Portfolio;
4) The Custodian shall provide the Fund with any report obtained
by the Custodian on the U.S. Securities System's accounting
system, internal accounting control and procedures for
safeguarding securities deposited in the U.S. Securities
System; and
5) Anything to the contrary in this Agreement notwithstanding,
the Custodian shall be liable to the Fund for the benefit of
the Portfolio for any loss or damage to the Portfolio
resulting from use of the U.S. Securities System by reason of
any negligence, misfeasance or misconduct of the Custodian or
any of its agents or of any of its or their employees or from
failure of the Custodian or any such agent to enforce
effectively such rights as it may have against the U.S.
Securities System; at the election of the Fund, it shall be
entitled to be subrogated to the rights of the Custodian with
respect to any claim against the U.S. Securities System or any
other person which the Custodian may have as a consequence of
any such loss or damage if and to the extent that the
Portfolio has not been made whole for any such loss or damage.
SECTION 2.9 SEGREGATED ACCOUNT. The Custodian shall upon receipt of
------------------
Proper Instructions on behalf of each applicable Portfolio, establish and
maintain a segregated account or accounts for and on behalf of each such
Portfolio, into which account or accounts may be transferred cash and/or
securities, including securities maintained in an account by the Custodian
pursuant to Section 2.8 hereof, (a) in accordance with the provisions of any
agreement among the Fund on behalf of the Portfolio, the Custodian and a
broker-dealer registered under the Exchange Act and a member of the NASD (or any
futures commission merchant registered under the Commodity Exchange Act),
relating to compliance with the rules of The Options Clearing Corporation and of
any registered national securities exchange (or the CFTC or any registered
contract market), or of any similar organization or organizations, regarding
escrow or other arrangements in connection with transactions by the Portfolio,
(b) for purposes of segregating cash or government securities in connection with
options purchased, sold or written by the Portfolio or commodity futures
contracts or options thereon purchased or sold by the Portfolio, (c) for the
purposes of compliance by the Portfolio with the procedures required by
Investment Company Act Release No. 10666, or any subsequent release of the U.S.
Securities and Exchange Commission (the "SEC"), or interpretative opinion of the
staff of the SEC, relating to the maintenance of segregated accounts by
registered investment companies, and (d) for any other purpose in accordance
with Proper Instructions.
8.
SECTION 2.10 DEPOSIT OF FUND ASSETS WITH THE UNDERLYING TRANSFER AGENT.
---------------------------------------------------------
Underlying Shares shall be deposited and/or maintained in an account or accounts
maintained with the Underlying Transfer Agent. The Underlying Transfer Agent
shall be deemed to be acting as if it is a "securities depository" for purposes
of Rule 17f-4 under the 1940 Act. Each Fund hereby directs the Custodian to
deposit and/or maintain such securities with the Underlying Transfer Agent,
subject to the following provisions:
1) The Custodian shall keep Underlying Shares owned by a Portfolio with
the Underlying Transfer Agent provided that such securities are
maintained in an account or accounts on the books and records of the
Underlying Transfer Agent in the name of the Custodian as custodian
for the Portfolio.
2) The records of the Custodian with respect to Underlying Shares which
are maintained with the Underlying Transfer Agent shall identify by
book-entry those Underlying Shares belonging to each Portfolio;
3) The Custodian shall pay for Underlying Shares purchased for the
account of a Portfolio upon (a) receipt of advice from the Portfolio's
investment adviser that such Underlying Shares have been purchased and
will be transferred to the account of the Custodian, on behalf of the
Portfolio, on the books and records of the Underlying Transfer Agent
and (b) the making of an entry on the records of the Custodian to
reflect such payment and transfer for the account of the Portfolio.
The Custodian shall receive confirmation from the Underlying Transfer
Agent of the purchase of such securities and the transfer of such
securities to the Custodian's account with the Underlying Transfer
Agent only after such payment is made. The Custodian shall transfer
Underlying Shares redeemed for the account of a Portfolio (i) upon
receipt of an advice from the Portfolio's investment adviser that such
securities have been redeemed and that payment for such securities
will be transferred to the Custodian and (ii) the making of an entry
on the records of the Custodian to reflect such transfer and payment
for the account of the Portfolio. The Custodian will receive
confirmation from the Underlying Transfer Agent of the redemption of
such securities and payment therefor only after such securities are
redeemed. Copies of all advices from the Portfolio's investment
adviser of purchases and sales of Underlying Shares for the account of
the Portfolio shall identify the Portfolio, be maintained for the
Portfolio by the Custodian, and be provided to the Portfolio's
investment adviser at its request; and
4) The Custodian shall be not be liable to any Fund or any Portfolio for
any loss or damage to the Fund or any Portfolio resulting from
maintenance of Underlying Shares with Underlying Transfer Agent except
for losses resulting directly from the negligence, misfeasance or
misconduct of the Custodian or any of its agents or of any of its or
their employees.
9.
SECTION 2.11 OWNERSHIP CERTIFICATES FOR TAX PURPOSES. The Custodian
---------------------------------------
shall execute ownership and other certificates and affidavits for all federal
and state tax purposes in connection with receipt of income or other payments
with respect to domestic securities of each Portfolio held by it and in
connection with transfers of securities.
SECTION 2.12 PROXIES. Except with respect to Portfolio property
-------
released and delivered pursuant to Section 2.2(14), or purchased pursuant to
Section 2.6(7), the Custodian shall, with respect to the domestic securities
held hereunder, cause to be promptly executed by the registered holder of such
securities, if the securities are registered otherwise than in the name of the
Portfolio or a nominee of the Portfolio, all proxies, without indication of the
manner in which such proxies are to be voted, and shall promptly deliver to the
Fund such proxies, all proxy soliciting materials and all notices relating to
such securities.
SECTION 2.13 COMMUNICATIONS RELATING TO PORTFOLIO SECURITIES. Except
-----------------------------------------------
with respect to Portfolio property released and delivered pursuant to Section
2.2(14), or purchased pursuant to Section 2.6(7), and subject to the provisions
of Section 2.3, the Custodian shall transmit promptly to the applicable Fund for
each Portfolio all written information (including, without limitation, pendency
of calls and maturities of domestic securities and expirations of rights in
connection therewith and notices of exercise of call and put options written by
the Fund on behalf of the Portfolio and the maturity of futures contracts
purchased or sold by the Fund on behalf of the Portfolio) received by the
Custodian from issuers of the securities being held for the Portfolio. With
respect to tender or exchange offers, the Custodian shall transmit promptly to
the applicable Fund all written information received by the Custodian from
issuers of the securities whose tender or exchange is sought and from the party
(or its agents) making the tender or exchange offer. If a Fund desires to take
action with respect to any tender offer, exchange offer or any other similar
transaction, the Fund shall notify the Custodian at least three business days
prior to the date on which the Custodian is to take such action.
SECTION 3. PROVISIONS RELATING TO RULES 17F-5 AND 17F-7
--------------------------------------------
SECTION 3.1. DEFINITIONS. As used throughout this Agreement, the
-----------
capitalized terms set forth below shall have the indicated meanings:
"Country Risk" means all factors reasonably related to the systemic risk of
holding Foreign Assets in a particular country including, but not limited to,
such country's political environment, economic and financial infrastructure
(including any Eligible Securities Depository operating in the country),
prevailing or developing custody and settlement practices, and laws and
regulations applicable to the safekeeping and recovery of Foreign Assets held in
custody in that country.
"Eligible Foreign Custodian" has the meaning set forth in section (a)(1) of Rule
17f-5, including a majority-owned or indirect subsidiary of a U.S. Bank (as
defined in Rule 17f-5), a bank holding company meeting the requirements of an
Eligible Foreign Custodian (as set forth in Rule 17f-5 or by other appropriate
action of the SEC, or a foreign branch of a Bank (as defined in Section 2(a)(5)
10.
of the 0000 Xxx) meeting the requirements of a custodian under Section 17(f) of
the 1940 Act; the term does not include any Eligible Securities Depository.
"Eligible Securities Depository" has the meaning set forth in section (b)(1) of
Rule 17f-7.
"Foreign Assets" means any of the Portfolios' investments (including foreign
currencies) for which the primary market is outside the United States and such
cash and cash equivalents as are reasonably necessary to effect the Portfolios'
transactions in such investments.
"Foreign Custody Manager" has the meaning set forth in section (a)(3) of Rule
17f-5.
"Rule 17f-5" means Rule 17f-5 promulgated under the 1940 Act.
"Rule 17f-7" means Rule 17f-7 promulgated under the 1940 Act.
SECTION 3.2. THE CUSTODIAN AS FOREIGN CUSTODY MANAGER.
----------------------------------------
3.2.1 DELEGATION TO THE CUSTODIAN AS FOREIGN CUSTODY MANAGER.
------------------------------------------------------
Each Fund, by resolution adopted by its Board, hereby delegates to the
Custodian, subject to Section (b) of Rule 17f-5, the responsibilities set forth
in this Section 3.2 with respect to Foreign Assets of the Portfolios held
outside the United States, and the Custodian hereby accepts such delegation as
Foreign Custody Manager with respect to the Portfolios.
3.2.2 COUNTRIES COVERED. The Foreign Custody Manager shall be
-----------------
responsible for performing the delegated responsibilities defined below only
with respect to the countries and custody arrangements for each such country
listed on Schedule A to this Agreement, which list of countries may be amended
from time to time by any Fund with the agreement of the Foreign Custody Manager.
The Foreign Custody Manager shall list on Schedule A the Eligible Foreign
Custodians selected by the Foreign Custody Manager to maintain the assets of the
Portfolios, which list of Eligible Foreign Custodians may be amended from time
to time in the sole discretion of the Foreign Custody Manager. The Foreign
Custody Manager will provide amended versions of Schedule A in accordance with
Section 3.2.5 hereof.
Upon the receipt by the Foreign Custody Manager of Proper Instructions to open
an account or to place or maintain Foreign Assets in a country listed on
Schedule A, and the fulfillment by each Fund, on behalf of the applicable
Portfolio(s), of the applicable account opening requirements for such country,
the Foreign Custody Manager shall be deemed to have been delegated by such
Fund's Board on behalf of such Portfolio(s) responsibility as Foreign Custody
Manager with respect to that country and to have accepted such delegation.
Execution of this Agreement by each Fund shall be deemed to be a Proper
Instruction to open an account, or to place or maintain Foreign Assets, in each
country listed on Schedule A. Following the receipt of Proper Instructions
directing the Foreign Custody Manager to close the account of a Portfolio with
the Eligible Foreign Custodian selected by the Foreign Custody Manager in a
designated country, the delegation by the Board on behalf of such
11.
Portfolio to the Custodian as Foreign Custody Manager for that country shall be
deemed to have been withdrawn and the Custodian shall immediately cease to be
the Foreign Custody Manager with respect to such Portfolio with respect to that
country.
The Foreign Custody Manager may withdraw its acceptance of delegated
responsibilities with respect to a designated country upon written notice to the
Fund. Thirty days (or such longer period to which the parties agree in writing)
after receipt of any such notice by the Fund, the Custodian shall have no
further responsibility in its capacity as Foreign Custody Manager to the Fund
with respect to the country as to which the Custodian's acceptance of delegation
is withdrawn.
3.2.3 SCOPE OF DELEGATED RESPONSIBILITIES:
-----------------------------------
(a) SELECTION OF ELIGIBLE FOREIGN CUSTODIANS. Subject to the provisions
----------------------------------------
of this Section 3.2, the Foreign Custody Manager may place and maintain the
Foreign Assets in the care of the Eligible Foreign Custodian selected by the
Foreign Custody Manager in each country listed on Schedule A, as amended from
time to time. In performing its delegated responsibilities as Foreign Custody
Manager to place or maintain Foreign Assets with an Eligible Foreign Custodian,
the Foreign Custody Manager shall determine that the Foreign Assets will be
subject to reasonable care, based on the standards applicable to custodians in
the country in which the Foreign Assets will be held by that Eligible Foreign
Custodian, after considering all factors relevant to the safekeeping of such
assets, including, without limitation the factors specified in Rule 17f-5(c)(1).
(b) CONTRACTS WITH ELIGIBLE FOREIGN CUSTODIANS. The Foreign Custody
------------------------------------------
Manager shall determine that the contract governing the foreign custody
arrangements with each Eligible Foreign Custodian selected by the Foreign
Custody Manager will satisfy the requirements of Rule 17f-5(c)(2).
(c) MONITORING. In each case in which the Foreign Custody Manager
----------
maintains Foreign Assets with an Eligible Foreign Custodian selected by the
Foreign Custody Manager, the Foreign Custody Manager shall establish a system to
monitor (i) the appropriateness of maintaining the Foreign Assets with such
Eligible Foreign Custodian and (ii) the contract governing the custody
arrangements established by the Foreign Custody Manager with the Eligible
Foreign Custodian. In the event the Foreign Custody Manager determines that the
custody arrangements with an Eligible Foreign Custodian it has selected are no
longer appropriate, the Foreign Custody Manager shall notify the Board in
accordance with Section 3.2.5 hereunder.
3.2.4 GUIDELINES FOR THE EXERCISE OF DELEGATED AUTHORITY. For
--------------------------------------------------
purposes of this Section 3.2, the Board shall be deemed to have considered and
determined to accept such Country Risk as is incurred by placing and maintaining
the Foreign Assets in each country for which the Custodian is serving as Foreign
Custody Manager of the Portfolios.
3.2.5 REPORTING REQUIREMENTS. The Foreign Custody Manager shall
----------------------
report the withdrawal of the Foreign Assets from an Eligible Foreign Custodian
and the placement of such Foreign Assets with another Eligible Foreign Custodian
by providing to the Board an amended
12.
Schedule A at the end of the calendar quarter in which an amendment to such
Schedule has occurred. The Foreign Custody Manager shall make written reports
notifying the Board of any other material change in the foreign custody
arrangements of the Portfolios described in this Section 3.2 after the
occurrence of the material change.
3.2.6 STANDARD OF CARE AS FOREIGN CUSTODY MANAGER OF A PORTFOLIO.
----------------------------------------------------------
In performing the responsibilities delegated to it, the Foreign
Custody Manager agrees to exercise reasonable care, prudence and diligence such
as a person having responsibility for the safekeeping of assets of management
investment companies registered under the 1940 Act would exercise.
3.2.7 REPRESENTATIONS WITH RESPECT TO RULE 17F-5. The Foreign
------------------------------------------
Custody Manager represents to each Fund that it is a U.S. Bank as defined in
section (a)(7) of Rule 17f-5. Each Fund represents to the Custodian that its
Board has determined that it is reasonable for such Board to rely on the
Custodian to perform the responsibilities delegated pursuant to this Agreement
to the Custodian as the Foreign Custody Manager of the Portfolios.
3.2.8 EFFECTIVE DATE AND TERMINATION OF THE CUSTODIAN AS FOREIGN
----------------------------------------------------------
CUSTODY MANAGER. Each Board's delegation to the Custodian as Foreign Custody
---------------
Manager of the Portfolios shall be effective as of the date hereof and shall
remain in effect until terminated at any time, without penalty, by written
notice from the terminating party to the non-terminating party. Termination will
become effective thirty (30) days after receipt by the non-terminating party of
such notice. The provisions of Section 3.2.2 hereof shall govern the delegation
to and termination of the Custodian as Foreign Custody Manager of the Portfolios
with respect to designated countries.
SECTION 3.3 ELIGIBLE SECURITIES DEPOSITORIES.
--------------------------------
3.3.1 ANALYSIS AND MONITORING. The Custodian shall (a) provide the
-----------------------
Fund (or its duly-authorized investment manager or investment adviser) with
an analysis of the custody risks associated with maintaining assets with the
Eligible Securities Depositories set forth on Schedule B hereto in accordance
with section (a)(1)(i)(A) of Rule 17f-7, and (b) monitor such risks on a
continuing basis, and promptly notify the Fund (or its duly-authorized
investment manager or investment adviser) of any material change in such risks,
in accordance with section (a)(1)(i)(B) of Rule 17f-7.
3.3.2 STANDARD OF CARE. The Custodian agrees to exercise reasonable
----------------
care, prudence and diligence in performing the duties set forth in Section
3.3.1.
SECTION 4. DUTIES OF THE CUSTODIAN WITH RESPECT TO PROPERTY OF THE PORTFOLIOS
------------------------------------------------------------------
TO BE HELD OUTSIDE THE UNITED STATES
------------------------------------
SECTION 4.1 DEFINITIONS. As used throughout this Agreement, the
-----------
capitalized terms set forth below shall have the indicated meanings:
13.
"Foreign Securities System" means an Eligible Securities Depository listed on
Schedule B hereto.
"Foreign Sub-Custodian" means a foreign banking institution serving as an
Eligible Foreign Custodian.
SECTION 4.2. HOLDING SECURITIES. The Custodian shall identify on its
------------------
books as belonging to the Portfolios the foreign securities held by each Foreign
Sub-Custodian or Foreign Securities System. The Custodian may hold foreign
securities for all of its customers, including the Portfolios, with any Foreign
Sub-Custodian in an account that is identified as belonging to the Custodian for
the benefit of its customers, provided however, that (i) the records of the
Custodian with respect to foreign securities of the Portfolios which are
maintained in such account shall identify those securities as belonging to the
Portfolios and (ii), to the extent permitted and customary in the market in
which the account is maintained, the Custodian shall require that securities so
held by the Foreign Sub-Custodian be held separately from any assets of such
Foreign Sub-Custodian or of other customers of such Foreign Sub-Custodian.
SECTION 4.3. FOREIGN SECURITIES SYSTEMS. Foreign securities shall be
--------------------------
maintained in a Foreign Securities System in a designated country through
arrangements implemented by the Custodian or a Foreign Sub-Custodian, as
applicable, in such country.
SECTION 4.4. TRANSACTIONS IN FOREIGN CUSTODY ACCOUNT.
---------------------------------------
4.4.1. DELIVERY OF FOREIGN ASSETS. The Custodian or a Foreign
--------------------------
Sub-Custodian shall release and deliver foreign securities of the Portfolios
held by the Custodian or such Foreign Sub-Custodian, or in a Foreign Securities
System account, only upon receipt of Proper Instructions, which may be
continuing instructions when deemed appropriate by the parties, and only in the
following cases:
(i) Upon the sale of such foreign securities for the Portfolio in
accordance with commercially reasonable market practice in the
country where such foreign securities are held or traded,
including, without limitation: (A) delivery against
expectation of receiving later payment; or (B) in the case of
a sale effected through a Foreign Securities System, in
accordance with the rules governing the operation of the
Foreign Securities System;
(ii) In connection with any repurchase agreement related to foreign
securities;
(iii) To the depository agent in connection with tender or other
similar offers for foreign securities of the Portfolios;
(iv) To the issuer thereof or its agent when such foreign
securities are called, redeemed, retired or otherwise become
payable;
14.
(v) To the issuer thereof, or its agent, for transfer into the
name of the Custodian (or the name of the respective Foreign
Sub-Custodian or of any nominee of the Custodian or such
Foreign Sub-Custodian) or for exchange for a different number
of bonds, certificates or other evidence representing the same
aggregate face amount or number of units;
(vi) To brokers, clearing banks or other clearing agents for
examination or trade execution in accordance with market
custom; provided that in any such case, the Foreign
Sub-Custodian shall have no responsibility or liability for
any loss arising from the delivery of such foreign securities
prior to receiving payment for such foreign securities except
as may arise from the Foreign Sub-Custodian's own negligence
or willful misconduct;
(vii) For exchange or conversion pursuant to any plan of merger,
consolidation, recapitalization, reorganization or
readjustment of the securities of the issuer of such
securities, or pursuant to provisions for conversion contained
in such securities, or pursuant to any deposit agreement;
(viii) In the case of warrants, rights or similar foreign securities,
the surrender thereof in the exercise of such warrants, rights
or similar securities or the surrender of interim receipts or
temporary securities for definitive securities;
(ix) For delivery as security in connection with any borrowing by a
Fund on behalf of a Portfolio requiring a pledge of assets by
the Fund on behalf of such Portfolio;
(x) In connection with trading in options and futures contracts,
including delivery as original margin and variation margin;
(xi) Upon the sale or other delivery of such foreign securities
(including, without limitation, to one or more Special
Sub-Custodians or Repo Custodians) as a Free Trade, provided
that applicable Proper Instructions shall set forth (A) the
foreign securities to be delivered and (B) the person(s) to
whom delivery shall be made;
(xii) In connection with the lending of foreign securities; and
(xiii) For any other purpose, but only upon receipt of Proper
Instructions specifying (A) the foreign securities to be
delivered and (B) the person(s) to whom delivery of such
securities shall be made.
4.4.2. PAYMENT OF PORTFOLIO MONIES. Upon receipt of Proper
---------------------------
Instructions, which may be continuing instructions when deemed appropriate by
the parties, the Custodian shall pay out, or direct the respective Foreign
Sub-Custodian or the respective Foreign Securities System to pay out, monies of
a Portfolio in the following cases only:
15.
(i) Upon the purchase of foreign securities for the Portfolio,
unless otherwise directed by Proper Instructions, by (A)
delivering money to the seller thereof or to a dealer therefor
(or an agent for such seller or dealer) against expectation of
receiving later delivery of such foreign securities; or (B) in
the case of a purchase effected through a Foreign Securities
System, in accordance with the rules governing the operation
of such Foreign Securities System;
(ii) In connection with the conversion, exchange or surrender of
foreign securities of the Portfolio;
(iii) For the payment of any expense or liability of the Portfolio,
including but not limited to the following payments: interest,
taxes, investment advisory fees, transfer agency fees, fees
under this Agreement, legal fees, accounting fees, and other
operating expenses;
(iv) For the purchase or sale of foreign exchange or foreign
exchange contracts for the Portfolio, including transactions
executed with or through the Custodian or its Foreign
Sub-Custodians;
(v) In connection with trading in options and futures contracts,
including delivery as original margin and variation margin;
(vi) Upon the purchase of foreign investments including, without
limitation, repurchase agreement transactions involving
delivery of Portfolio monies to Repo Custodian(s), as a Free
Trade, provided that applicable Proper Instructions shall set
forth (A) the amount of such payment and (B) the person(s) to
whom payment shall be made;
(vii) For payment of part or all of the dividends received in
respect of securities sold short;
(viii) In connection with the borrowing or lending of foreign
securities; and
(ix) For any other purpose, but only upon receipt of Proper
Instructions specifying (A) the amount of such payment and (B)
the person(s) to whom such payment is to be made.
4.4.3. MARKET CONDITIONS. Notwithstanding any provision of
-----------------
this Agreement to the contrary, settlement and payment for Foreign Assets
received for the account of the Portfolios and delivery of Foreign Assets
maintained for the account of the Portfolios may be effected in accordance with
the customary established securities trading or processing practices and
procedures in the country or market in which the transaction occurs, including,
without limitation, delivering Foreign Assets to the purchaser thereof or to a
dealer therefor (or an agent for such purchaser or dealer) with the expectation
of receiving later payment for such Foreign Assets from such purchaser or
dealer.
16
The Custodian shall provide to each Board the information with respect to
custody and settlement practices in countries in which the Custodian employs a
Foreign Sub-Custodian described on Schedule C hereto at the time or times set
forth on such Schedule. The Custodian may revise Schedule C from time to time,
provided that no such revision shall result in a Board being provided with
substantively less information than had been previously provided hereunder.
SECTION 4.5. REGISTRATION OF FOREIGN SECURITIES. The foreign securities
----------------------------------
maintained in the custody of a Foreign Sub-Custodian (other than bearer
securities) shall be registered in the name of the applicable Portfolio or in
the name of the Custodian or in the name of any Foreign Sub-Custodian or in the
name of any nominee of the foregoing, and the applicable Fund on behalf of such
Portfolio agrees to hold any such nominee harmless from any liability as a
holder of record of such foreign securities. The Custodian or a Foreign
Sub-Custodian shall not be obligated to accept securities on behalf of a
Portfolio under the terms of this Agreement unless the form of such securities
and the manner in which they are delivered are in accordance with reasonable
market practice.
SECTION 4.6 BANK ACCOUNTS. The Custodian shall identify on its books as
-------------
belonging to the applicable Fund cash (including cash denominated in foreign
currencies) deposited with the Custodian. Where the Custodian is unable to
maintain, or market practice does not facilitate the maintenance of, cash on the
books of the Custodian, a bank account or bank accounts shall be opened and
maintained outside the United States on behalf of a Portfolio with a Foreign
Sub-Custodian. All accounts referred to in this Section shall be subject only to
draft or order by the Custodian (or, if applicable, such Foreign Sub-Custodian)
acting pursuant to the terms of this Agreement to hold cash received by or from
or for the account of the Portfolio. Cash maintained on the books of the
Custodian (including its branches, subsidiaries and affiliates), regardless of
currency denomination, is maintained in bank accounts established under, and
subject to the laws of, The Commonwealth of Massachusetts.
SECTION 4.7. COLLECTION OF INCOME. The Custodian shall use reasonable
--------------------
commercial efforts to collect all income and other payments with respect to the
Foreign Assets held hereunder to which the Portfolios shall be entitled and
shall credit such income, as collected, to the applicable Portfolio. In the
event that extraordinary measures are required to collect such income, the Fund
and the Custodian shall consult as to such measures and as to the compensation
and expenses of the Custodian relating to such measures.
SECTION 4.8 SHAREHOLDER RIGHTS. With respect to the foreign securities
------------------
held pursuant to this Section 4, the Custodian shall use reasonable commercial
efforts to facilitate the exercise of voting and other shareholder rights,
subject always to the laws, regulations and practical constraints that may exist
in the country where such securities are issued. Each Fund acknowledges that
local conditions, including lack of regulation, onerous procedural obligations,
lack of notice and other factors may have the effect of severely limiting the
ability of such Fund to exercise shareholder rights.
17.
SECTION 4.9 COMMUNICATIONS ELATING TO FOREIGN SECURITIES. The Custodian
--------------------------------------------
shall transmit promptly to the applicable Fund written information with respect
to materials received by the Custodian via the Foreign Sub-Custodians from
issuers of the foreign securities being held for the account of the Portfolios
(including, without limitation, pendency of calls and maturities of foreign
securities and expirations of rights in connection therewith). With respect to
tender or exchange offers, the Custodian shall transmit promptly to the
applicable Fund written information with respect to materials so received by the
Custodian from issuers of the foreign securities whose tender or exchange is
sought or from the party (or its agents) making the tender or exchange offer.
The Custodian shall not be liable for any untimely exercise of any tender,
exchange or other right or power in connection with foreign securities or other
property of the Portfolios at any time held by it unless (i) the Custodian or
the respective Foreign Sub-Custodian is in actual possession of such foreign
securities or property and (ii) the Custodian receives Proper Instructions with
regard to the exercise of any such right or power, and both (i) and (ii) occur
at least two (2) business days prior to the date on which the Custodian is to
take action to exercise such right or power.
SECTION 4.10. LIABILITY OF FOREIGN SUB-CUSTODIANS. Each agreement
-----------------------------------
pursuant to which the Custodian employs a Foreign Sub-Custodian shall, to the
extent possible, require the Foreign Sub-Custodian to exercise reasonable care
in the performance of its duties, and to indemnify, and hold harmless, the
Custodian from and against any loss, damage, cost, expense, liability or claim
arising out of or in connection with the Foreign Sub-Custodian's performance of
such obligations. At a Fund's election, the Portfolios shall be entitled to be
subrogated to the rights of the Custodian with respect to any claims against a
Foreign Sub-Custodian as a consequence of any such loss, damage, cost, expense,
liability or claim if and to the extent that the Portfolios have not been made
whole for any such loss, damage, cost, expense, liability or claim.
SECTION 4.11 TAX LAW. The Custodian shall have no responsibility or
-------
liability for any obligations now or hereafter imposed on any Fund, the
Portfolios or the Custodian as custodian of the Portfolios by the tax law of the
United States or of any state or political subdivision thereof. It shall be the
responsibility of each Fund to notify the Custodian of the obligations imposed
on such Fund with respect to the Portfolios or the Custodian as custodian of the
Portfolios by the tax law of countries other than those mentioned in the above
sentence, including responsibility for withholding and other taxes, assessments
or other governmental charges, certifications and governmental reporting. The
sole responsibility of the Custodian with regard to such tax law shall be to use
reasonable efforts to assist the Fund with respect to any claim for exemption or
refund under the tax law of countries for which such Fund has provided such
information.
SECTION 4.12. LIABILITY OF CUSTODIAN. The Custodian shall be liable for
----------------------
the acts or omissions of a Foreign Sub-Custodian to the same extent as set forth
with respect to sub-custodians generally in this Agreement and, regardless of
whether assets are maintained in the custody of a Foreign Sub-Custodian or a
Foreign Securities System, the Custodian shall not be liable for any loss,
damage, cost, expense, liability or claim resulting from nationalization,
expropriation, currency restrictions, or acts of war or terrorism, or any other
loss where the Sub-Custodian has otherwise acted with reasonable care.
18.
SECTION 5. SPECIAL SUB-CUSTODIANS
----------------------
Upon receipt of Special Instructions (as such term is defined in Section 7
hereof), the Custodian shall, on behalf of one or more Portfolios, appoint one
or more banks, trust companies or other entities designated in such Special
Instructions to act as a sub-custodian for the purposes of effecting such
transaction as may be designated by a Fund in Special Instructions. Each such
designated sub-custodian is referred to herein as a "Special Sub-Custodian."
Each such duly appointed Special Sub-Custodian shall be listed on Schedule D
hereto, as it may be amended from time to time by a Fund, with the
acknowledgment of the Custodian. In connection with the appointment of any
Special Sub-Custodian, and in accordance with Special Instructions, the
Custodian shall enter into a sub-custodian agreement with the Fund and the
Special Sub-Custodian in form and substance approved by such Fund, provided that
such agreement shall in all events comply with the provisions of the 1940 Act
and the rules and regulations thereunder and the terms and provisions of this
Agreement.
SECTION 6. PAYMENTS FOR SALES OR REPURCHASES OR REDEMPTIONS OF SHARES
----------------------------------------------------------
The Custodian shall receive from the distributor of the Shares or from the
Transfer Agent and deposit into the account of the appropriate Portfolio such
payments as are received for Shares thereof issued or sold from time to time by
the applicable Fund. The Custodian will provide timely notification to such Fund
on behalf of each such Portfolio and the Transfer Agent of any receipt by it of
payments for Shares of such Portfolio.
From such funds as may be available for the purpose, the Custodian shall, upon
receipt of instructions from the Transfer Agent, make funds available for
payment to holders of Shares who have delivered to the Transfer Agent a request
for redemption or repurchase of their Shares. In connection with the redemption
or repurchase of Shares, the Custodian is authorized upon receipt of
instructions from the Transfer Agent to wire funds to or through a commercial
bank designated by the redeeming shareholders. In connection with the redemption
or repurchase of Shares, the Custodian shall honor checks drawn on the Custodian
by a holder of Shares, which checks have been furnished by a Fund to the holder
of Shares, when presented to the Custodian in accordance with such procedures
and controls as are mutually agreed upon from time to time between such Fund and
the Custodian.
SECTION 7. PROPER INSTRUCTIONS AND SPECIAL INSTRUCTIONS
--------------------------------------------
"Proper Instructions," as such term is used throughout this Agreement, means a
writing signed or initialed by one or more person or persons as the applicable
Board shall have from time to time authorized. Each such writing shall set forth
the specific transaction or type of transaction involved. Oral instructions will
be considered Proper Instructions if the Custodian reasonably believes them to
have been given by a person authorized to give such instructions with respect to
the transaction
19.
involved; each Fund shall cause all oral instructions to be confirmed in
writing. Proper Instructions may include communications effected directly
between electro-mechanical or electronic devices provided that the applicable
Fund and the Custodian agree to security procedures including, but not limited
to, the security procedures selected by such Fund via the form of Funds Transfer
Addendum hereto. For purposes of this Section, Proper Instructions shall include
instructions received by the Custodian pursuant to any three-party agreement
which requires a segregated asset account in accordance with Section 2.9 hereof.
"Special Instructions," as such term is used throughout this Agreement, means
Proper Instructions countersigned or confirmed in writing by the Treasurer or
any Assistant Treasurer of the applicable Fund or any other person designated in
writing by the Treasurer of such Fund, which countersignature or confirmation
shall be (a) included on the same instrument containing the Proper Instructions
or on a separate instrument clearly relating thereto and (b) delivered by hand,
by facsimile transmission, or in such other manner as the Fund and the Custodian
agree in writing.
Concurrently with the execution of this Agreement, and from time to time
thereafter, as appropriate, each Fund shall deliver to the Custodian, duly
certified by such Fund's Treasurer or Assistant Treasurer, a certificate setting
forth: (i) the names, titles, signatures and scope of authority of all persons
authorized to give Proper Instructions or any other notice, request, direction,
instruction, certificate or instrument on behalf of the Fund and (ii) the names,
titles and signatures of those persons authorized to give Special Instructions.
Such certificate may be accepted and relied upon by the Custodian as conclusive
evidence of the facts set forth therein and shall be considered to be in full
force and effect until receipt by the Custodian of a similar certificate to the
contrary.
SECTION 8. EVIDENCE OF AUTHORITY
---------------------
The Custodian shall be protected in acting upon any instructions, notice,
request, consent, certificate or other instrument or paper believed by it to be
genuine and to have been properly executed by or on behalf of the applicable
Fund. The Custodian may receive and accept a copy of a resolution certified by
the Secretary or an Assistant Secretary of any Fund as conclusive evidence (a)
of the authority of any person to act in accordance with such resolution or (b)
of any determination or of any action by the applicable Board as described in
such resolution, and such resolution may be considered as in full force and
effect until receipt by the Custodian of written notice to the contrary.
SECTION 9. ACTIONS PERMITTED WITHOUT EXPRESS AUTHORITY
-------------------------------------------
The Custodian may in its discretion, without express authority from the
applicable Fund on behalf of each applicable Portfolio:
1) Make payments to itself or others for minor expenses of handling
securities or other similar items relating to its duties under
this Agreement; provided that all such payments shall be
accounted for to the Fund on behalf of the Portfolio;
20.
2) Surrender securities in temporary form for securities in
definitive form;
3) Endorse for collection, in the name of the Portfolio, checks,
drafts and other negotiable instruments; and
4) In general, attend to all non-discretionary details in connection
with the sale, exchange, substitution, purchase, transfer and
other dealings with the securities and property of the Portfolio
except as otherwise directed by the applicable Board.
SECTION 10. RECORDS
-------
The Custodian shall with respect to each Portfolio create and maintain all
records relating to its activities and obligations under this Agreement in such
manner as will meet the obligations of each Fund under the 1940 Act, with
particular attention to section 31 thereof and Rules 31a-1 and 31a-2 thereunder.
All such records shall be the property of the Fund and shall at all times during
the regular business hours of the Custodian be open for inspection by duly
authorized officers, employees or agents of such Fund and employees and agents
of the SEC. The Custodian shall, at a Fund's request, supply the Fund with a
tabulation of securities owned by each Portfolio and held by the Custodian and
shall, when requested to do so by the Fund and for such compensation as shall be
agreed upon between the Fund and the Custodian, include certificate numbers in
such tabulations. Each Fund acknowledges that, in creating and maintaining the
records as set forth herein with respect to Portfolio property released and
delivered pursuant to Section 2.2(14), or purchased pursuant to Section 2.6(7)
hereof, the Custodian is authorized and instructed to rely upon information
provided to it by the Fund, the Fund's counterparty(ies), or the agents of
either of them.
Each Fund acknowledges and agrees that, with respect to investments maintained
with the Underlying Transfer Agent, the Underlying Transfer Agent is the sole
source of information on the number of shares of a fund held by it on behalf of
a Portfolio and that the Custodian has the right to rely on holdings information
furnished by the Underlying Transfer Agent to the Custodian in performing its
duties under this Agreement, including without limitation, the duties set forth
in this Section 10; provided, however, that the Custodian shall be obligated to
reconcile information as to purchases and sales of Underlying Shares contained
in trade instructions and confirmations received by the Custodian and to report
promptly any discrepancies to the Underlying Transfer Agent.
SECTION 11. OPINION OF FUND'S INDEPENDENT ACCOUNTANT
----------------------------------------
The Custodian shall take all reasonable action, as a Fund with respect to a
Portfolio may from time to time request, to obtain from year to year favorable
opinions from the Fund's independent accountants with respect to its activities
hereunder in connection with the preparation of the Fund's Form N-1A or Form
N-2, as applicable, and Form N-SAR or other annual reports to the SEC and with
respect to any other requirements thereof.
21.
SECTION 12. REPORTS TO FUND BY INDEPENDENT PUBLIC ACCOUNTANTS
-------------------------------------------------
The Custodian shall provide the applicable Fund, on behalf of each of the
Portfolios at such times as such Fund may reasonably require, with reports by
independent public accountants on the accounting system, internal accounting
control and procedures for safeguarding securities, futures contracts and
options on futures contracts, including securities deposited and/or maintained
in a U.S. Securities System or a Foreign Securities System, relating to the
services provided by the Custodian under this Agreement; such reports, shall be
of sufficient scope and in sufficient detail, as may reasonably be required by
the Fund to provide reasonable assurance that any material inadequacies would be
disclosed by such examination, and, if there are no such inadequacies, the
reports shall so state.
SECTION 13. COMPENSATION OF CUSTODIAN
-------------------------
The Custodian shall be entitled to reasonable compensation for its services and
expenses as Custodian, as agreed upon from time to time between each Fund on
behalf of each applicable Portfolio and the Custodian.
SECTION 13A. CONTRACTUAL SETTLEMENT SERVICES
-------------------------------
SECTION 13A.1. In accordance with the terms set out in this Section
13A, the Custodian shall credit or debit the appropriate cash account of each
Fund on behalf of the applicable Portfolio in connection with the purchase of,
and proceeds of the sale, maturity, redemption, income, dividends, or other
disposition of, securities held for the time being on behalf of such Portfolio,
on a contractual settlement basis.
SECTION 13A.2. The services described below (the "Contractual
Settlement Services") shall be provided for such instruments and in such markets
as the Custodian may advise from time to time. All payments are made subject to
actual collection, and the Custodian shall not be liable to a Fund for any
amount that is not actually collected. The Custodian may terminate or suspend
any part of the provision of the Contractual Settlement Services under this
Agreement at its sole discretion immediately upon notice to the affected Fund or
Funds, particularly in the event of force majeure events affecting settlement,
any disorder in markets, or other changed external business circumstances.
Moreover, in the event that the Custodian determines not to provide contractual
settlement with respect to a particular transaction, the Custodian will promptly
notify the Fund of such determination. For the avoidance of doubt, delivery of
securities will be made upon actual receipt of such securities by the Custodian.
SECTION 13A.3. The consideration payable in connection with a
purchase transaction shall be debited from the appropriate cash account of the
Fund on behalf of the applicable Portfolio as
22.
of the time and date that monies would ordinarily be required to settle such
transaction in the applicable market. The Custodian shall promptly re-credit
such amount at the time that the Fund notifies the Custodian by Proper
Instruction that such transaction has been canceled.
SECTION 13A.4. With respect to the settlement of a sale, maturity, or
redemption, income, dividends or other disposition of securities, a provisional
credit of an amount equal to the net sale, maturity, redemption, income,
dividends or other disposition proceeds of the transaction (the "Settlement
Amount") shall be made to the account of the Fund on behalf of the applicable
Portfolio as if the Settlement Amount had been received as of the close of
business on the date that monies would ordinarily be available in good funds in
the applicable market. Such provisional credit will be made conditional upon the
Custodian having received Proper Instructions with respect to, or reasonable
notice of, the transaction, as applicable, and the Custodian or its agents
having possession of the asset(s) associated with the transaction in good
deliverable form and are not aware of any facts which would lead them to believe
that the transaction will not settle in the time period ordinarily applicable to
such transactions in the applicable market. Simultaneously with the making of
such provisional credit, the Fund agrees that, to the extent permitted by law,
the Custodian shall have, and hereby grants to the Custodian, to the extent
permitted by law, a security interest in any property at any time held for the
account of the Fund on behalf of the applicable Portfolio, to the full extent of
the credited amount. In this regard, the Fund hereby pledges, assigns and grants
to the Custodian a continuing security and a lien on any and all such property
under the Custodian's custody, in accordance with the terms of Section 14 of
this Agreement.
SECTION 13A.5. The Custodian shall have the right to reverse any
provisional credit given in accordance with the Contractual Settlement Services
at any time before actual receipt of the item associated with the subject
transaction when the Custodian believes that such transaction will not settle in
accordance with its terms or amounts due pursuant thereto will not be
collectable or where the Custodian has not been provided Proper Instructions
with respect thereto, as applicable, and the affected Fund shall be responsible
for any costs or liabilities resulting from such reversal. Upon such reversal,
(a) the Custodian shall promptly notify the affected Fund with respect thereto
and (b) a sum equal to the credited amount shall become immediately payable by
such Fund on behalf of the applicable Portfolio to the Custodian and may be
debited from any cash account held for benefit of the Fund on behalf of the
applicable Portfolio. The amount of any accrued dividends, interest and other
distributions with respect to assets associated with such transaction may be set
off against the credited amount.
SECTION 13A.6. In the event that the Custodian is unable to debit an
account of the Fund on behalf of the applicable Portfolio, and the Fund fails to
pay any amount due to the Custodian at the time such amount becomes payable in
accordance with this Agreement, (a) the Custodian may charge the Fund for costs
and expenses associated with providing the provisional credit, including without
limitation the cost of funds associated therewith and (b) to the extent
permitted by law, the Custodian shall have the discretion to sell, exchange,
convey, transfer or otherwise dispose of any property at any time held for the
account of the Fund on behalf of the applicable Portfolio to the full extent
necessary for the Custodian to make itself whole.
23.
SECTION 14. RESPONSIBILITY OF CUSTODIAN
---------------------------
So long as and to the extent that it is in the exercise of reasonable care, the
Custodian shall not be responsible for the title, validity or genuineness of any
property or evidence of title thereto received by it or delivered by it pursuant
to this Agreement and shall be held harmless in acting upon any notice, request,
consent, certificate or other instrument reasonably believed by it to be genuine
and to be signed by the proper party or parties, including any futures
commission merchant acting pursuant to the terms of a three-party futures or
options agreement. The Custodian shall be held to the exercise of reasonable
care in carrying out the provisions of this Agreement, but shall be kept
indemnified by and shall be without liability to any Fund for any action taken
or omitted by it in good faith without negligence, including, without
limitation, acting in accordance with any Proper Instruction. It shall be
entitled to rely on and may act upon advice of counsel (who may be counsel for
the Fund) on all matters, and shall be without liability for any action
reasonably taken or omitted pursuant to such advice. The Custodian shall be
without liability to any Fund or Portfolio for any loss, liability, claim or
expense resulting from or caused by anything which is part of Country Risk (as
defined in Section 3 hereof), including without limitation nationalization,
expropriation, currency restrictions, or acts of war, revolution, riots or
terrorism.
Except as may arise from the Custodian's own negligence or willful misconduct or
the negligence or willful misconduct of a sub-custodian or agent, the Custodian
shall be without liability to any Fund for any loss, liability, claim or expense
resulting from or caused by; (i) events or circumstances beyond the reasonable
control of the Custodian or any sub-custodian or Securities System or any agent
or nominee of any of the foregoing, including, without limitation, the
interruption, suspension or restriction of trading on or the closure of any
securities market, power or other mechanical or technological failures or
interruptions, computer viruses or communications disruptions, work stoppages,
natural disasters, or other similar events or acts; (ii) errors by any Fund or
its duly authorized investment manager or investment adviser in their
instructions to the Custodian provided such instructions have been in accordance
with this Agreement; (iii) the insolvency of or acts or omissions by a
Securities System; (iv) any act or omission of a Special Sub-Custodian
including, without limitation, reliance on reports prepared by a Special
Sub-Custodian; (v) any delay or failure of any broker, agent or intermediary,
central bank or other commercially prevalent payment or clearing system to
deliver to the Custodian's sub-custodian or agent securities purchased or in the
remittance or payment made in connection with securities sold; (vi) any delay or
failure of any company, corporation, or other body in charge of registering or
transferring securities in the name of the Custodian, any Fund, the Custodian's
sub-custodians, nominees or agents or any consequential losses arising out of
such delay or failure to transfer such securities including non-receipt of
bonus, dividends and rights and other accretions or benefits; (vii) delays or
inability to perform its duties due to any disorder in market infrastructure
with respect to any particular security or Securities System; and (viii) any
provision of (A) any present law, regulation or order not governing the
Custodian's provision of services hereunder or (B) any future law or regulation
or order of the United States of America, or any state thereof, or any other
country, or political subdivision thereof or of any court of competent
jurisdiction.
24.
The Custodian shall be liable for the acts or omissions of a Foreign
Sub-Custodian (as such term is defined in Section 4 hereof) to the same extent
as set forth with respect to sub-custodians generally in this Agreement.
If a Fund on behalf of a Portfolio requires the Custodian to take any action
with respect to securities, which action involves the payment of money or which
action may, in the opinion of the Custodian, result in the Custodian or its
nominee assigned to the Fund or the Portfolio being liable for the payment of
money or incurring liability of some other form, such Fund on behalf of the
Portfolio, as a prerequisite to requiring the Custodian to take such action,
shall provide indemnity to the Custodian in an amount and form satisfactory to
it.
To secure the due and punctual payment of all liabilities of each Fund, on
behalf of the applicable Portfolio, to the Custodian, whether direct or
indirect, absolute or contingent, now existing or hereafter arising or incurred
(the "Liabilities"), each Fund, to the extent permitted by law, hereby grants to
the Custodian a security interest in (i) all of such Portfolio's respective
cash, deposit accounts, securities and other investment property, and other
assets, whether now existing or hereafter acquired or created, in the possession
or under the control of any of the Custodian or its agents, affiliates and
sub-custodians and (ii) any and all proceeds thereof (collectively, the
"Collateral"). The Liabilities include, without limitation, (a) the obligations
of each Fund, on behalf of the applicable Portfolio, to the Custodian in
relation to any advance of cash or securities for any purpose including in
connection with Contractual Settlement Services; (b) the obligations of each
Fund, on behalf of the applicable Portfolio, to the Custodian (in its capacity
as foreign exchange provider or otherwise) in relation to any spot or forward
foreign exchange contracts or any other foreign exchange contract or facility
entered into with such Fund; and (c) the obligations of each Fund, on behalf of
the applicable Portfolio, to reimburse the Custodian for any taxes, interest,
charges, expense, assessments, or other liabilities that may be assessed against
or imposed on the Custodian under or in connection with this Agreement for such
Portfolio except such Liabilities as may arise from the Custodian's own failure
to exercise reasonable care in the performance of its duties hereunder.
In the event that a Fund fails to satisfy any of its Liabilities as and when due
and payable, the Custodian shall have in respect of the Collateral, in addition
to all other rights and remedies arising hereunder or under applicable law, the
rights and remedies of a secured party under the Uniform Commercial Code of The
Commonwealth of Massachusetts. Without prejudice to the Custodian's rights under
applicable law, the Custodian shall be entitled, without notice to any Fund, to
withhold delivery of any Collateral, sell or otherwise realize any such
Collateral and to apply the money or other proceeds and any other monies
credited to the cash accounts in satisfaction of such Liabilities. Each Fund
acknowledges that, in the Custodian exercising any such rights or remedies
against any of the Collateral, it will be commercially reasonable for the
Custodian (i) to accelerate or cause the acceleration of the maturity of any
fixed term deposits comprised in the Collateral and/or (ii) to effect such
currency conversions as may be necessary at its current rates for the sale and
purchase of the relevant currencies.
25.
Except as may arise from the Custodian's own negligence or willful misconduct,
each Fund shall indemnify and hold the Custodian harmless from and against any
and all costs, expenses, losses, damages, charges, counsel fees, payments and
liabilities which may be asserted against the Custodian (a) acting in accordance
with any Proper Instruction or Special Instruction with respect to Free Trades
including, but not limited to, cost, expense, loss, damage, liability, tax,
charge, assessment or claim resulting from (i) the failure of the applicable
Fund to receive income with respect to purchased investments, (ii) the failure
of the applicable to recover amounts invested on maturity of purchased
investments, (iii) the failure of the Custodian to be aware of notices or other
corporate communications with respect to purchased investments, and to respond
thereto, or (iv) the Custodian's reliance upon information provided by the
applicable Fund, such Fund's counterparty(ies) or the agents of either of them
with respect to Fund property released, delivered or purchased pursuant to
either of Section 2.2(14) or Section 2.6(7) hereof; (b) for the acts or
omissions of any Special Sub-Custodian; or (c) for the acts or omissions of any
Local Agent or Pledgee.
In no event shall the Custodian be liable for indirect, special or consequential
damages.
SECTION 15. EFFECTIVE PERIOD, TERMINATION AND AMENDMENT
-------------------------------------------
This Agreement shall become effective as of its execution, shall continue in
full force and effect until terminated as hereinafter provided, may be amended
at any time by mutual agreement of the parties hereto and may be terminated by
either party by an instrument in writing delivered or mailed, postage prepaid to
the other party, such termination to take effect not sooner than sixty (60) days
after the date of such delivery or mailing; provided, however, that no Fund
shall amend or terminate this Agreement in contravention of any applicable
federal or state regulations, or any provision of such Fund's Governing
Documents, and further provided, that any Fund on behalf of one or more of the
Portfolios may at any time by action of its Board (i) substitute another bank or
trust company for the Custodian by giving notice as described above to the
Custodian, or (ii) immediately terminate this Agreement in the event of the
appointment of a conservator or receiver for the Custodian by the Comptroller of
the Currency or upon the happening of a like event at the direction of an
appropriate regulatory agency or court of competent jurisdiction.
Termination of this Agreement with respect to any one particular Fund or
Portfolio shall in no way affect the rights and duties under this Agreement with
respect to any other Fund or Portfolio.
Upon termination of the Agreement, the applicable Fund on behalf of each
applicable Portfolio shall pay to the Custodian such compensation as may be due
as of the date of such termination and shall likewise reimburse the Custodian
for its costs, expenses and disbursements.
SECTION 16. SUCCESSOR CUSTODIAN
-------------------
If a successor custodian for one or more Portfolios shall be appointed by the
applicable Board, the Custodian shall, upon termination and receipt of Proper
Instructions, deliver to such successor
26.
custodian at the office of the Custodian, duly endorsed and in the form for
transfer, all securities of each applicable Portfolio then held by it hereunder
and shall transfer to an account of the successor custodian all of the
securities of each such Portfolio held in a Securities System or at the
Underlying Transfer Agent.
If no such successor custodian shall be appointed, the Custodian shall, in like
manner, upon receipt of Proper Instructions, deliver at the office of the
Custodian and transfer such securities, funds and other properties in accordance
with such resolution.
In the event that no Proper Instructions designating a successor custodian or
alternative arrangements shall have been delivered to the Custodian on or before
the date when such termination shall become effective, then the Custodian shall
have the right to deliver to a bank or trust company, which is a "bank" as
defined in the 1940 Act, doing business in Boston, Massachusetts or New York,
New York, of its own selection, having an aggregate capital, surplus, and
undivided profits, as shown by its last published report, of not less than
$25,000,000, all securities, funds and other properties held by the Custodian on
behalf of each applicable Portfolio and all instruments held by the Custodian
relative thereto and all other property held by it under this Agreement on
behalf of each applicable Portfolio, and to transfer to an account of such
successor custodian all of the securities of each such Portfolio held in any
Securities System or at the Underlying Transfer Agent. Thereafter, such bank or
trust company shall be the successor of the Custodian under this Agreement.
In the event that securities, funds and other properties remain in the
possession of the Custodian after the date of termination hereof owing to
failure of any Fund to provide Proper Instructions as aforesaid, the Custodian
shall be entitled to fair compensation for its services during such period as
the Custodian retains possession of such securities, funds and other properties
and the provisions of this Agreement relating to the duties and obligations of
the Custodian shall remain in full force and effect.
SECTION 17. GENERAL
-------
SECTION 17.1 MASSACHUSETTS LAW TO APPLY. This Agreement shall be
--------------------------
construed and the provisions thereof interpreted under and in accordance with
laws of The Commonwealth of Massachusetts.
SECTION 17.2 PRIOR AGREEMENTS. This Agreement supersedes and
----------------
terminates, as of the date hereof, all prior Agreements between each Fund on
behalf of each of the Portfolios and the Custodian relating to the custody of
such Fund's assets.
SECTION 17.3 ASSIGNMENT. This Agreement may not be assigned by (a)
----------
any Fund without the written consent of the Custodian or (b) by the Custodian
without the written consent of each applicable Fund.
27.
SECTION 17.4 INTERPRETIVE AND ADDITIONAL PROVISIONS. In connection with
--------------------------------------
the operation of this Agreement, the Custodian and each Fund on behalf of each
of the Portfolios, may from time to time agree on such provisions interpretive
of or in addition to the provisions of this Agreement as may in their joint
opinion be consistent with the general tenor of this Agreement. Any such
interpretive or additional provisions shall be in a writing signed by all
parties and shall be annexed hereto, provided that no such interpretive or
additional provisions shall contravene any applicable federal or state
regulations or any provision of a Fund's Governing Documents. No interpretive or
additional provisions made as provided in the preceding sentence shall be deemed
to be an amendment of this Agreement.
SECTION 17.5 ADDITIONAL FUNDS. In the event that any management
----------------
investment company in addition to those listed on Appendix A hereto desires to
have the Custodian render services as custodian under the terms hereof, it shall
so notify the Custodian in writing, and if the Custodian agrees in writing to
provide such services, such management investment company shall become a Fund
hereunder and be bound by all terms and conditions and provisions hereof
including, without limitation, the representations and warranties set forth in
Section 17.7 below.
SECTION 17.6 ADDITIONAL PORTFOLIOS. In the event that any Fund
---------------------
establishes one or more series of Shares in addition to those set forth on
Appendix A hereto with respect to which it desires to have the Custodian render
services as custodian under the terms hereof, it shall so notify the Custodian
in writing, and if the Custodian agrees in writing to provide such services,
such series of Shares shall become a Portfolio hereunder.
SECTION 17.7 THE PARTIES. All references herein to the "Fund" are to
-----------
each of the management investment companies listed on Appendix A hereto, and
each management investment company made subject to this Agreement in accordance
with Section 17.5 above, individually, as if this Agreement were between such
individual Fund and the Custodian. In the case of a series corporation, trust or
other entity, all references herein to the "Portfolio" are to the individual
series or portfolio of such corporation, trust or other entity, or to such
corporation, trust or other entity on behalf of the individual series or
portfolio, as appropriate. Any reference in this Agreement to "the parties"
shall mean the Custodian and such other individual Fund as to which the matter
pertains. Each Fund hereby represents and warrants that (a) it is duly
incorporated or organized and is validly existing in good standing in its
jurisdiction of incorporation or organization; (b) it has the requisite power
and authority under applicable law and its Governing Documents to enter into and
perform this Agreement; (c) all requisite proceedings have been taken to
authorize it to enter into and perform this Agreement; (d) this Agreement
constitutes its legal, valid, binding and enforceable agreement; and (e) its
entrance into this Agreement shall not cause a material breach or be in material
conflict with any other agreement or obligation of the Fund or any law or
regulation applicable to it.
SECTION 17.8 REMOTE ACCESS SERVICES ADDENDUM. The Custodian and each
-------------------------------
Fund agree to be bound by the terms of the Remote Access Services Addendum
hereto.
28.
SECTION 17.9 CONFIDENTIALITY. The Custodian agrees to treat
---------------
confidentially all non-public records and other information obtained by, or
provided to, it during the term of this Agreement and relating to the Funds and
the Portfolios, except where required to be disclosed by law or regulatory
authority or agency, or where the Custodian has determined that disclosure is
necessary for the protection of its interests, or where the Custodian has
received the prior written consent of the applicable Fund to disclose, which
consent shall not be unreasonably withheld. Notwithstanding the foregoing, the
Custodian may aggregate Fund or Portfolio data with similar data of other
customers of the Custodian ("Aggregated Data") and may use Aggregated Data for
purposes of constructing statistical models so long as such Aggregated Data
represents such a sufficiently large sample that no Fund or Portfolio data can
be identified either directly or by inference or implication.
SECTION 17.10 NOTICES. Any notice, instruction or other instrument
-------
required to be given hereunder may be delivered in person to the offices of the
parties as set forth herein during normal business hours or delivered prepaid
registered mail or by telex, cable or telecopy to the parties at the following
addresses or such other addresses as may be notified by any party from time to
time.
To any Fund: [FUND NAME]
Xxxxx Xxxxxx Fund Management
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx, Senior Vice President
Telephone: 000-000-0000
Telecopy: 000-000-0000
With a copy to: Xxxxxxxxx X. Xxxxx, Esq., Secretary
[FUND NAME]
0 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
To the Custodian: STATE STREET BANK AND TRUST COMPANY
Xxxxxx Xxxxxx Building
One Heritage Drive, JPB3N
North Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx X. XxXxxxxx, Vice President
Telephone: 000-000-0000
Telecopy: 000-000-0000
Such notice, instruction or other instrument shall be deemed to have been served
in the case of a registered letter at the expiration of five business days after
posting, in the case of cable twenty-four hours after dispatch and, in the case
of telex, immediately on dispatch and if delivered outside normal business hours
it shall be deemed to have been received at the next time after delivery when
normal business hours commence and in the case of cable, telex or telecopy on
the business day after
29.
the receipt thereof. Evidence that the notice was properly addressed, stamped
and put into the post shall be conclusive evidence of posting.
SECTION 17.11 COUNTERPARTS. This Agreement may be executed in several
------------
counterparts, each of which shall be deemed to be an original, and all such
counterparts taken together shall constitute one and the same Agreement.
SECTION 17.12 SEVERABILITY. If any provision or provisions of this
------------
Agreement shall be held to be invalid, unlawful or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired.
SECTION 17.13 REPRODUCTION OF DOCUMENTS. This Agreement and all
-------------------------
schedules, addenda, exhibits, appendices, attachments and amendments hereto may
be reproduced by any photographic, photostatic, microfilm, micro-card, miniature
photographic or other similar process. The parties hereto all/each agree that
any such reproduction shall be admissible in evidence as the original itself in
any judicial or administrative proceeding, whether or not the original is in
existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
SECTION 17.14 SHAREHOLDER COMMUNICATIONS ELECTION. SEC Rule 14b-2
-----------------------------------
requires banks which hold securities for the account of customers to respond to
requests by issuers of securities for the names, addresses and holdings of
beneficial owners of securities of that issuer held by the bank unless the
beneficial owner has expressly objected to disclosure of this information. In
order to comply with the rule, the Custodian needs each Fund to indicate whether
it authorizes the Custodian to provide such Fund's name, address, and share
position to requesting companies whose securities the Fund owns. If a Fund tells
the Custodian "no," the Custodian will not provide this information to
requesting companies. If a Fund tells the Custodian "yes" or does not check
either "yes" or "no" below, the Custodian is required by the rule to treat the
Fund as consenting to disclosure of this information for all securities owned by
the Fund or any funds or accounts established by the Fund. For a Fund's
protection, the Rule prohibits the requesting company from using the Fund's name
and address for any purpose other than corporate communications. Please indicate
below whether the Fund consents or objects by checking one of the alternatives
below.
YES [ ] The Custodian is authorized to release the Fund's name, address, and
share positions.
NO [X] The Custodian is not authorized to release the Fund's name, address,
and share positions.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
30.
SIGNATURE PAGE
--------------
IN WITNESS WHEREOF, each of the parties has caused this instrument to be
executed in its name and behalf by its duly authorized representative and its
seal to be hereunder affixed as of the date first above-written.
FUNDS' SIGNATURE ATTESTED TO BY: EACH MANAGEMENT INVESTMENT
COMPANY SET FORTH ON APPENDIX A
HERETO
By:
------------------------------ ---------------------------------------
Xxxxxxxxx X. Xxxxx, Secretary Xxxxx X. Xxxxxxx, Senior Vice President
SIGNATURE ATTESTED TO BY: STATE STREET BANK AND TRUST COMPANY
By:
------------------------------ ---------------------------------------
Xxxxxxxxx X. Poster, Vice Xxxxxx X. Xxxxxx, Executive Vice
President President
31.
APPENDIX A
TO
MASTER CUSTODIAN AGREEMENT
--------------------------
MANAGEMENT INVESTMENT COMPANIES REGISTERED WITH THE SEC AND PORTFOLIOS THEREOF,
-------------------------------------------------------------------------------
IF ANY
------
*[NAME OF REGISTERED MANAGEMENT INVESTMENT COMPANY]
*[Name of Portfolio]
*[Name of Portfolio]
*[Name of Portfolio]
*[Name of Portfolio]
*[NAME OF REGISTERED MANAGEMENT INVESTMENT COMPANY]
*[Name of Portfolio]
*[Name of Portfolio]
*[Name of Portfolio]
*[Name of Portfolio]
*[NAME OF REGISTERED MANAGEMENT INVESTMENT COMPANY]
*[Name of Portfolio]
*[Name of Portfolio]
*[Name of Portfolio]
*[Name of Portfolio]
*[NAME OF REGISTERED MANAGEMENT INVESTMENT COMPANY]
*[Name of Portfolio]
*[Name of Portfolio]
*[Name of Portfolio]
*[Name of Portfolio]
SCHEDULE D
TO
MASTER CUSTODIAN AGREEMENT
--------------------------
SPECIAL SUB-CUSTODIANS
----------------------
None
