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EXHIBIT G(1)
CUSTODIAN AGREEMENT
This Agreement is entered into as of October 20, 2000 between each of the
investment companies listed and described on Exhibit I hereto, as the same may
be amended by the parties hereto from time to time (each, the "Fund"), and State
Street Bank and Trust Company, a Massachusetts trust company having its
principal place of business at 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000
(the "Custodian"),
WITNESSETH:
WHEREAS, each Fund is or may be authorized to issue shares in separate
series, with each such series representing interests in a separate portfolio of
securities and other assets. All such series now or hereafter (in accordance
with Section 20) listed on Exhibit I and, thereby, made subject to this
Agreement shall be referred to as a "Portfolio." To the extent a Fund is not
authorized to issue shares in separate series, the terms "Fund" and "Portfolio"
shall be used interchangeably herein with respect thereto;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter contained, the parties hereto do hereby agree as follows:
1. Employment of Custodian and Property to be Held by It
The Fund hereby employs the Custodian as the custodian of the assets of the
Portfolio(s), including securities which the Fund, on behalf of the applicable
Portfolio, desires to be held in places within the United States of America
("domestic securities") and securities it desires to be held outside the United
States of America ("foreign securities") pursuant to the provisions of the
Fund's declaration of trust or articles of incorporation (as appropriate), as
amended from time to time ("the "Charter"). The Fund, on behalf of the
Portfolio(s), agrees to deliver to the Custodian securities and cash of such
Portfolios as generally described in Exhibit I, all payments of income, payments
of principal or capital distributions received by it with respect to such
securities owned by the Portfolio(s) from time to time, and, in the Fund's
discretion, cash consideration received by it for new or treasury shares of
capital stock or beneficial interest, as appropriate, of the Fund representing
interests in the Portfolios as may be issued or sold from time to time
("Shares"). The Custodian shall not be responsible for any property of Portfolio
held or received by the Fund on behalf of a Portfolio and not delivered to (i)
the Custodian to be held by it, (ii) a sub-custodian located in the United
States and employed pursuant to this Article 1 or (iii) a foreign sub-custodian
or a foreign securities system employed pursuant to Article 3.
Upon receipt of "Proper Instructions" (as such term is defined in Article 5
of this Agreement), 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
of America, including any state or political subdivision thereof and any
territory over which its political sovereignty extends (the "United States" or
"U.S."), but only in accordance with an applicable vote by the Fund's board of
trustees or directors, as appropriate (each, the "Board"). The Custodian may
also employ as sub-custodians for the Fund's foreign securities on behalf of the
applicable Portfolio(s)the
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foreign sub-custodians and foreign securities depositories designated in
Schedule A hereto but only in accordance with the terms hereof and an applicable
vote of the Board on behalf of the applicable Portfolio(s).
2. Duties of the Custodian with Respect to Property of the Fund Held by
the Custodian in the United States
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 in a
"U.S. Securities System" (as such term is defined in Section 2.10
of this Agreement) and (b) commercial paper of an issuer for which
State Street Bank and Trust Company acts as issuing and paying agent
("Direct Paper System") which is deposited and/or maintained in the
Custodian's Direct Paper Book Entry System pursuant to Section 2.11.
2.2 Delivery of Securities. The Custodian shall release and deliver
domestic securities owned by a Portfolio and (i) held by the
Custodian, (ii) held in an account of the Custodian in a U.S.
Securities System (as defined in Section 2.10 hereof) or (iii) held in
the Direct Paper System Account (as defined in Section 2.11 hereof),
only upon receipt of Proper Instructions from the Fund on behalf of
the applicable Portfolio, which may be continuing instructions when
deemed appropriate by the parties, and only in the cases listed below.
Any U.S. Securities System account shall not include any assets of the
Custodian other than assets held as a fiduciary, custodian or
otherwise for its customers ("U.S. Securities System Account"). The
Custodian's Direct Paper Book-Entry System account shall not include
any assets of the Custodian other than assets held as a fiduciary,
custodian or otherwise for its customers ("Direct Paper System
Account").
1) Upon sale of such securities for the account of the Portfolio
and receipt of full 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 2.10
hereof:
4) To the depository agent in connection with tender or other
similar offers for securities of the Portfolio; provided that
the Custodian shall have taken reasonable steps to ensure
timely collection of the payment for, or the return of, such
securities by the depository agent;
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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 case or other consideration is to
be delivered to the Custodian; and provided further that the
Custodian shall have taken reasonable steps to ensure timely
collection of such cash or other consideration;
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 2.9 or into the name or nominee
name of any domestic sub-custodian appointed pursuant to
Article 1; or for exchange for a different number of bonds,
certificates or other evidence representing the same aggregate
face amount or number of units bearing the same interest rate,
maturity date and call provisions, if any; provided that, in
any such case, the new securities are to be delivered to the
Custodian;
7) In the case of delivery of physical certificates or
instruments representing securities, 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 taken reasonable steps to
ensure prompt collection of the payment for, or the return of,
such securities by the broker or its clearing agent, 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 or protective plan; provided
that, in any such case, the new securities and/or cash are to
be delivered to the Custodian;
9) In the case of warrants, puts, calls, futures contracts,
options, rights or similar securities, the surrender thereof in
the exercise or sale of such warrants, puts, calls, futures
contracts, options, rights or similar securities; provided
that, in any such case, the securities and cash received in
exchange thereof are to be delivered to the Custodian;
10) For delivery in connection with any loans of securities made by
the Portfolio to the borrower thereof in accordance with the
terms of a written securities lending agreement to which a
Portfolio is a party or is otherwise approved by the Portfolio,
but only against receipt of adequate collateral as agreed upon
from time to time by the Custodian and the Fund on behalf of
the Portfolio, which may be in
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the form of cash or obligations issued by the United States
government, its agencies or instrumentalities, except that in
connection with any loans for which collateral is to be
credited to the Custodian's U.S. Securities System Account, 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 provided that, if Proper
Instructions require such delivery to be made through a U.S.
Securities System, such delivery is made in accordance with the
requirements of such U.S. Securities System;
11) For delivery as security in connection with any borrowings by
the Fund on behalf of the Portfolio requiring a pledge of
assets by the Fund on behalf of the Portfolio, but only against
receipt of amounts borrowed;
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. ("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
Portfolio;
13) For delivery in accordance with the provisions of any agreement
among the 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 and/or any contract
market, or of any similar organization or organizations,
regarding account deposits in connection with transactions by
the Portfolio;
14) Upon receipt of instructions front the transfer agent for the
Fund (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 Fund's currently effective prospectus and statement of
additional information related to the Portfolio (the
"Prospectus"), in satisfaction of requests by holders of Shares
for repurchase or redemption;
15) For any other proper corporate purpose, but only upon receipt
of, in addition to Proper Instructions from the Fund on behalf
of the applicable Portfolio, a copy of a resolution of the
Board or of any executive committee thereof signed by an
officer of the Fund and certified by the Fund's Secretary or
Assistant Secretary (a "Certified Resolution") specifying the
securities of the Portfolio to be delivered, setting forth the
purpose for which such delivery is to be made, declaring such
purpose to be a proper corporate purpose, and naming the person
or persons to whom delivery of such securities shall be made;
and
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16) Upon the termination of this Agreement as hereinafter set
forth, in accordance with Article 16 hereof.
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 nominee of the 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 investment companies having the same investment
adviser as the Portfolio, or in the name or nominee name of any agent
appointed pursuant to Section 2.9 or in the name or nominee name of
any domestic sub-custodian appointed pursuant to Article 1. The
Portfolios reserve the right to instruct the Custodian as to the
method of registration and safekeeping of the securities of the
Portfolios. 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 at the time of delivery on behalf of the
Portfolio.
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 the 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 Investment Company Act of
1940, as amended (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 (a "Banking Institution") as it may in its discretion deem
necessary or desirable; provided, however, that every Banking
Institution shall be qualified to act as a custodian under the 1940
Act, and that each such Banking Institution and the funds to be
deposited with each Banking Institution on behalf of each applicable
Portfolio shall 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.
2.5 Availability of Federal Funds. Upon agreement between the Fund on
behalf of each applicable Portfolio and the Custodian, the Custodian
shall, upon the receipt of Proper Instructions from the Fund on behalf
of a Portfolio, make federal funds available to such Portfolio as of
specified times agreed upon from time to time by the Fund and the
Custodian in the amount of checks received in payment for Shares of
such Portfolio which are deposited into the Portfolio's account.
2.6 Collection of Income. Subject to the provisions of the last sentence
of the first paragraph of this Section 2.6, the Custodian shall
collect on a timely basis all income and other payments with respect
to United States-registered securities held hereunder to which each
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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 domestic bearer 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 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. If payment is not received by the Custodian
within a reasonable time after proper demands have been made, the
Custodian shall so notify the Fund in writing and send copies of all
demand letters, any written responses and memoranda of all oral
responses to telephonic demands therefor. If, however, the Fund
directs the Custodian to maintain securities in "street name", the
Custodian shall utilize its best efforts to timely collect income due
the Fund on such securities.
Collection of income due each Portfolio on domestic securities
loaned pursuant to the provisions of Section 2.2(10) shall be the
responsibility of the Fund; the Custodian will have no duty or
responsibility in connection therewith, other than to provide the Fund
with such information or data in its possession 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.
2.7 Payment of Fund Monies. Upon receipt of Proper Instructions from the
Fund 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
2.10 hereof; (c) in the case of a purchase involving the Direct
Paper System, in accordance with the conditions set forth in
Section 2.11; (d) in the case of repurchase agreements entered
into between the Fund on behalf of the Portfolio and the
Custodian, 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
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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 in Article 5;
2) In connection with conversion, exchange or surrender of securities
owned by the Portfolio as set forth in Section 2.2(4),(5),(8) or
(9) hereof;
3) For the redemption or repurchase of Shares issued by the Portfolio
as set forth in Article 4 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, advisory fees,
administration fees, accounting fees, transfer agent fees, 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 and capital distributions on
Shares of the Portfolio declared pursuant to the governing
documents of the Fund;
6) For payment of the amount of dividends received in respect of
securities sold short;
7) For any other proper purpose, but only upon receipt of, in addition
to Proper Instructions from the Fund on behalf of the Portfolio, a
Certified Resolution, specifying the amount of such payment,
setting forth the purpose for which such payment is to be made,
declaring such purpose to be a proper purpose, and naming the
person or persons to whom such payment is to be made; and
8) Upon the termination of this Agreement as hereinafter set forth, in
accordance with Article 16.
2.8 Liability for Payment in Advance of Receipt of Securities Purchased. In
any and every case where payment for purchase of domestic securities for
the account of a Portfolio is (i) made by the Custodian in advance of
receipt of the securities purchased and (ii) such payment in advance of
receipt is not made with respect to a transaction settling via the
Depository Trust Company, in the absence of Proper Instructions from the
Fund on behalf of such Portfolio to so pay in advance the Custodian shall
be absolutely liable to the Fund for the non-receipt of such securities
purchased except as specifically stated otherwise in Sections 2.7(1)(e),
2.7(2) and 2.10(3) of this Agreement, in which case the Custodian will be
subject to the standard of care set forth in Article 13 hereof.
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2.9 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, as its agent to
carry out such of the provisions of this Article 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.
2.10 Deposit of Securities in U.S. Securities Systems. The Custodian may
deposit and/or maintain domestic securities owned by a Portfolio in a
clearing agency registered with the Securities and Exchange Commission
(the "SEC") under Section 17A of the Exchange Act, which acts as a
securities depository, or in the book-entry system authorized by the U.S.
Department of the Treasury and certain federal agencies or its successor
or successors (each a "U.S. Securities System") in accordance with
applicable Federal Reserve Board and SEC rules and regulations, if any,
and subject to the following provisions:
1) The Custodian may keep eligible domestic securities of the
Portfolio in a U.S. Securities System provided that such securities
are held in a U.S. Securities System Account;
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 domestic securities purchased for the
account of the Portfolio only upon (i) receipt of advice from the
U.S. Securities System that such securities have 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 payment and
transfer for the account of the Portfolio. The Custodian shall
transfer securities sold for the account of the Portfolio only upon
(x) 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 (y) 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 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 on behalf of the
Portfolio 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 on behalf of the Portfolio 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 on behalf of the Portfolio(s)
with any report obtained by the Custodian on the U.S. Securities
System's accounting system,
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internal accounting control and procedures for safeguarding
securities deposited in the U.S. Securities System;
5) The Custodian shall have received from the Fund on behalf of the
Portfolio the initial certificate required by Article 14 hereof;
and
6) The Custodian, at the Fund's expense in the absence of negligence
or willful misconduct on the Custodian's part or on the part of
sub-custodians or agents appointed pursuant to this Agreement,
shall enforce on behalf of the Fund such rights as it may have
against the U.S. Securities System. 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, bad faith 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.
2.11 Fund Assets Held in the Custodian's Direct Paper System. The Custodian
may deposit and/or maintain securities owned by a Portfolio in the Direct
Paper System of the Custodian subject to the following provisions:
1) No transaction relating to securities in the Direct Paper System
will be effected in the absence of Proper Instructions from the
Fund on behalf of the Portfolio;
2) The Custodian may keep securities of the Portfolio in the Direct
Paper System only if such securities are represented in the Direct
Paper Account;
3) The records of the Custodian with respect to securities of the
Portfolio which are maintained in the Direct Paper System shall
identify by book-entry those securities belonging to the Portfolio;
4) The Custodian shall pay for securities purchased for the account
of the Portfolio upon the making of an entry on the records of the
Custodian to reflect such payment and transfer of securities to the
account of the Portfolio. The Custodian shall transfer securities
sold for the account of the Portfolio upon the making of an entry
on the records of the Custodian to reflect such transfer and
receipt of payment for the account of the Portfolio;
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5) The Custodian shall furnish the Fund on behalf of the
Portfolio confirmation of each transfer to or from the
account of the Portfolio, in the form of a written advice
or notice, of Direct Paper on the next business day
following such transfer and shall furnish to the Fund on
behalf of the Portfolio copies of daily transaction sheets
reflecting each day's transaction in the Direct Paper
System for the account of the Portfolio; and
6) The Custodian shall provide the Fund with any report on
its accounting system, internal accounting control and
procedures for safeguarding securities deposited in the
Direct Paper System which had been prepared as of the time
of such request.
2.12 Segregated Account. The Custodian shall upon receipt of Proper
Instructions from the Fund 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 a U.S. Securities System Account by the Custodian
pursuant to Section 2.10 hereof (i) 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 or
of any registered national securities exchange (or the Commodity
Futures Trading Commission and/or any contract market), or of any
similar organization or organizations, regarding escrow or other
arrangements in connection with transactions by the Portfolio,
(ii) for purposes of segregating cash and/or securities in
connection with (a) options purchased, sold or written by the
Portfolio, (b) commodity futures contracts or options thereon
purchased, sold or written by the Portfolio or (c) other
transactions requiring segregation as described in the Fund's
registration statement as in effect from time to time, (iii) for
the purposes of compliance by the Portfolio with the procedures
required by Investment Company Act Release No. 10666, or any
subsequent release or releases of the SEC relating to the
maintenance of segregated accounts by registered investment
companies and (iv) for other proper corporate purposes, but only,
in the case of this clause (iv), upon receipt of, in addition to
Proper Instructions from the Fund on behalf of the applicable
Portfolio, a Certified Resolution setting forth the purpose or
purposes of such segregated account and declaring such purposes to
be proper corporate purposes.
2.13 Proxies. The Custodian or its sub-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 on behalf of the Portfolio
all proxies, including those for bearer securities, all proxy
soliciting materials and all notices relating to such securities.
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2.14 Communications Relating to Portfolio Securities. The Custodian
shall transmit promptly to the Fund for each Portfolio all written
notices, announcements or information (including, without
limitation, pendency of calls and maturities of domestic
securities and expirations of rights in connection therewith,
notices of exercise of call and put options written by the Fund on
behalf of the Portfolio and the maturity of futures contracts and
options thereon purchased or sold by the Portfolio) received by the
Custodian from issuers of the securities being held for the
Portfolio. With respect to tender or exchange offers or other
similar transactions, the Custodian shall transmit promptly to the
Portfolio all written notices, announcements or 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 the Fund directs the
Custodian to maintain securities in "street name", the Custodian
shall utilize its best efforts to notify the Fund of relevant
corporate actions including, without limitation, pendency of
calls, maturities, tender or exchange offers. If the Portfolio
desires to take action with respect to any tender offer, exchange
offer or any other similar transaction, the Portfolio shall notify
the Custodian at least two (2) business days prior to the date on
which the Custodian is to take such action; with respect to notice
given by the Portfolio to the Custodian subsequent thereto, the
Custodian shall use its best efforts under the circumstances to
take the requested action.
2.15 Reports to Fund by Independent Public Accountant. The Custodian
shall provide the Fund with reports by independent public
accountants on accounting system, internal accounting control and
procedures for safeguarding cash, securities, futures contracts
and options on futures contracts and other assets, including cash,
securities and other assets deposited and/or maintained in a U.S.
Securities System (as defined in Section 2.10) or with a
sub-custodian, 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.
3. Duties of the Custodian with Respect to Property of the Fund Held
Outside the United States
3.1 Appointment of Foreign Sub-Custodians. The Fund hereby authorizes
and instructs the Custodian to employ as sub-custodians for the
Portfolio's securities and other assets maintained outside the
United States eligible foreign custodians as defined in Rule 17f-5
under the 1940 Act ("Rule 17f-5") designated on Schedule A hereto
(the "foreign sub-custodians"). Upon receipt of Proper
Instructions, together with a Certified Resolution, the Custodian
and the Fund on behalf of the Portfolio(s) may agree to amend
Schedule A hereto from time to time to designate additional or
different foreign
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sub-custodians. Upon receipt of Proper Instructions, the Fund may
instruct the Custodian to cease the employment of any one or more
such foreign sub-custodians for maintaining custody of the
Portfolio's assets.
3.2 Assets to be Held. The Custodian shall limit the securities and
other assets maintained in the custody of the foreign
sub-custodians to: (a) "foreign securities", as defined in
paragraph (c)(1) of Rule 17f-5, (b) cash and cash equivalents in
such amounts as the Custodian may determine to be reasonably
necessary to effect the Portfolio's foreign securities
transactions and (c) such cash and securities as the Fund shall
give Proper Instructions to be held in segregated accounts
pursuant to Section 3.21 hereof. The Custodian shall identify on
its books as belonging to the Fund the foreign securities of the
Fund held by each foreign sub-custodian.
3.3 Foreign Securities Systems. Except as may otherwise be agreed upon
in writing by the Custodian and the Fund, assets of the
Portfolio(s) shall be maintained in a clearing agency or a
securities depository within the meaning of Rule 17f-5(c)(2)(iii)
and (iv) listed on Schedule A (each a "foreign securities system")
only through arrangements implemented by the foreign banking
institutions (as defined in Section 3.5 below) serving as
sub-custodians pursuant to the terms hereof (foreign securities
systems and U.S. Securities Systems are referred to herein
collectively as the "Securities Systems"). Where possible after
reasonable efforts, such arrangements shall include entry into
agreements containing the provisions set forth in Section 3.5
hereof.
3.4 Holding Securities. The Custodian may hold securities and other
non-cash property for all of its customers, including the Fund,
with a foreign sub-custodian in a single 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 securities and other non-cash property
of the Fund which are maintained in such account shall identify
by book-entry those securities and other non-cash property
belonging to the Fund, (ii) the Custodian shall require that the
securities and other non-cash property so held by the foreign
sub-custodian be held separately from the assets of the foreign
sub-custodian or of others, (iii) the Custodian shall reconcile
the holdings of each customer in the single account daily, and
(iv) such holding shall be consistent with the terms of the SEC
staff no-action letter to the Custodian (NO. 95-35-CC) or
subsequent SEC position or Rule.
3.5 Agreements with Foreign Banking Institutions. Each agreement with
a foreign sub-custodian as defined in Rule 17f-5(c)(2)(i) or (ii)
(each a "foreign banking institution") shall provide that (a) the
Fund's assets will be indemnified or its assets insured in the
event of loss; (b) the assets of each Portfolio will not be subject
to any right, charge, security interest, lien or claim of any kind
in favor of the foreign banking institution or its creditors or
agent, except a claim of payment for their safe custody or
administration; (c) beneficial ownership of the assets of each
Portfolio will be freely transferable without the payment of money
or value other than for custody or administration; (d) adequate
records
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will be maintained identifying the assets as held by the Custodian
on behalf of its customers; (e) officers of or auditors employed
by or other representatives of the Custodian, including to the
extent permitted under applicable law the independent public
accountants for the Fund will be given access to the books and
records of the foreign banking institution relating to its actions
under its agreement with the Custodian; (f) assets of the
Portfolios held by the foreign sub-custodian will be subject only
to the instructions of the Custodian or its agents; and (g) such
foreign banking institution shall notify the Custodian in the
event that it ceases to qualify as either a branch of a "qualified
U.S. bank" or an "eligible foreign custodian", as such terms are
defined in Rule 17f-5(c), as amended.
3.6 Access of Independent Accountants of the Fund. Upon request of the
Fund, the Custodian will use reasonable efforts to arrange for the
independent accountants of the Fund to be afforded access to the
books and records of the foreign banking institution employed as a
foreign sub-custodian insofar as such books and records relate to
the performance of such foreign banking institution under its
agreement with the Custodian.
3.7 Delivery of Securities. The Custodian (or its foreign
sub-custodian) shall release and deliver foreign securities of a
Portfolio held by the foreign sub-custodian, or in a foreign
securities system account of the Custodian (or its foreign
sub-custodian), only upon receipt of Proper Instructions from the
Fund on behalf of the applicable Portfolio, which may be
continuing instructions when deemed appropriate by the parties,
and only in the following cases:
(a) Upon sale of such securities for the Portfolio in
accordance with reasonable market practice in the
jurisdiction where such securities are held or traded,
including, without limitation: (i) delivery against
expectation of receiving later payment where such
delivery is the customarily established securities
trading practice generally accepted by Institutional
Clients (as hereinafter defined) in the jurisdiction or
market where the transaction occurs; or (ii) 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;
(b) In connection with any repurchase agreement related to
such securities;
(c) To the depository agent in connection with tender or
other similar offers for securities of the Portfolio;
provided that the Custodian (or its foreign
sub-custodian) shall have taken reasonable steps in
accordance with procedures generally accepted by
Institutional Clients in the particular market to ensure
timely collection of the payment for, or the return of,
such securities by the depository agent;
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(d) 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 (or its foreign sub-custodian); and
provided further that the Custodian (or its foreign sub-custodian)
shall have taken reasonable steps in accordance with procedures
generally accepted by Institutional Clients in the particular
market to ensure timely collection of such cash or other
consideration;
(e) To the issuer thereof, or its agent, for transfer into the name of
the Custodian (or its foreign sub-custodian) or of any nominee of
the Custodian (or its 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;
provided that, in any such case, the new securities are to be
delivered to the Custodian (or its foreign sub-custodian);
(f) 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 Custodian (or its foreign
sub-custodian) shall have taken reasonable steps in accordance
with procedures generally accepted by Institutional Clients in the
particular market to ensure prompt collection of the payment for,
or the return of, such securities by the broker, clearing bank or
clearing agent, the Custodian (or its foreign sub-custodian) shall
have no responsibility or liability for any loss arising from the
delivery of such securities prior to receiving payment for such
securities except as may arise from the negligence or willful
misconduct of the Custodian (or of its foreign sub-custodian);
(g) 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/or cash are to be delivered to the
Custodian (or its foreign sub-custodian) in accordance with
procedures generally accepted by Institutional Clients in the
particular market;
(h) In the case of warrants, puts, calls, futures contracts, options,
rights or similar securities, the surrender thereof in the
exercise or sale of such warrants, puts, calls, futures
contracts, options, rights or similar securities; provided that,
in any such case, the securities and cash received in exchange
therefor are to be delivered to the Custodian (or its foreign sub-
custodian) in accordance with procedures generally accepted by
Institutional Clients in the particular market;
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(i) For delivery as security in connection with any borrowings by the
Fund requiring a pledge of assets of the Portfolio by the Fund,
but only against receipt of amounts borrowed;
(j) In connection with trading in options and futures contracts,
including delivery as original margin and variation margin;
(k) In connection with the loan of securities made by the Portfolio
to the borrower thereof in accordance with (i) the terms of a
written securities lending agreement to which a Portfolio and
State Street Bank and Trust Company, as lending agent, are
parties or (ii) in accordance with the terms of Proper
Instructions;
(l) For any other purpose, but only upon receipt of a Certified
Resolution and Proper Instructions specifying the securities to be
delivered, setting forth the purpose for which delivery is to be
made, declaring such purpose to be a proper corporate purpose and
naming the person or persons to whom delivery of such securities
shall be made; and
(m) Upon termination of this Agreement as hereinafter set forth, in
accordance with Article 16 hereof.
3.8 Payment of Fund Monies. Upon receipt of Proper Instructions from the Fund
on behalf of the applicable Portfolio, which may be continuing
instructions when deemed appropriate by the parties, the Custodian shall
pay out, or direct its foreign sub-custodians to pay out, monies of a
Portfolio in the following cases only:
(a) Upon the purchase of foreign securities, options, futures or
options on futures contracts for the Portfolio, unless otherwise
directed by Proper Instructions, by (i) delivering money to the
seller thereof or to a dealer therefor (or an agent for such
seller or dealer), against delivery of such securities to the
foreign sub-custodian; or (ii) in accordance with the customarily
established securities trading practices generally accepted by
Institutional Clients in the jurisdiction or market in which the
transaction occurs, against expectation of receiving later
delivery of such securities; or (iii) 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;
(b) In connection with the conversion, exchange or surrender of
securities of the Portfolio as set forth in Section 3.7 hereof;
(c) For the payment of any expense or liability including but not
limited to the following payments for the account of the
Portfolio: interest, taxes, advisory, administration, accounting,
transfer agent and legal fees, and operating expenses;
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(d) 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;
(e) In connection with trading in options and futures contracts,
including delivery as original margin and variation margin;
(f) In connection with the borrowing of securities;
(g) For any purpose, but only upon receipt of a Certified Resolution
and Proper Instructions specifying the amount of such payment and
naming the person or persons to whom such payment is to be made;
and
(h) Upon termination of this Agreement as hereinafter set forth, in
accordance with Article 16 hereof.
3.9 Market Conditions. Notwithstanding any provision of this Agreement to the
contrary, settlement and payment for securities received for the account
of each applicable Portfolio and delivery of securities maintained for
the account of each applicable Portfolio may be effected in accordance
with the customary securities trading or securities processing practices
and procedures generally accepted by Institutional Clients in the
jurisdiction or market in which the transaction occurs, including,
without limitation, delivering securities to the purchaser thereof or to
a dealer therefor (or an agent for such purchaser or dealer) against a
receipt with the expectation of receiving later payment for such
securities from such purchaser or dealer. For purposes of this Agreement,
"Institutional Clients" means U.S. registered investment companies, or
major, U.S.-based commercial banks, insurance companies, pension funds
or substantially similar financial institutions which as a part of their
ordinary business operations, purchase or sell securities and make use of
non-U.S. custodial services. For the purposes of this section, the
"DVP/RVP Model" is a settlement system which offers a simultaneous and
irrevocable exchange of securities (on the delivery side) and cash value
(on the payment side) to settle a transaction. The Custodian will provide
the Fund (i) with a copy of The Guide to Custody in World Markets, which
at the time of its printing shall contain the Custodian's best
information with respect to customary securities trading or securities
processing practices and procedures generally accepted by Institutional
Clients in the jurisdictions and markets set forth therein, (ii) a
summary extracted therefrom and dated the date hereof which shall set
forth the Custodian's best information with respect to the markets in
which some or all securities transactions do not settle in accordance
with the DVP/RVP Model, and (iii) updates to The Guide to Custody in
World Markets as published and to the aforementioned summary as
appropriate.
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3.10 Registration of Securities. Securities maintained in the custody of
a foreign banking institution (other than bearer securities) shall be
registered in the name of the Portfolio or in the name of any nominee
of the Fund on behalf of the Portfolio or in the name of any nominee
of the Custodian or of such foreign banking institution, and the Fund
agrees to hold any such nominee harmless from any liability arising
solely as a result of its status as a holder of record of such
securities unless liability results from the negligence, bad faith
or willful misconduct on the part of such nominee, the Custodian or
such foreign banking institution. The Custodian and its 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 in the particular
jurisdiction and generally accepted by Institutional Clients.
3.11 Bank Accounts. The Custodian (or its foreign sub-custodian) may open
and maintain outside the United States a bank account or bank
accounts on behalf of the Fund or its applicable Portfolios in
foreign banking institutions designated on Schedule A, subject only
to draft or order by the Custodian or its foreign sub-custodian,
acting pursuant to the terms of this Agreement to hold cash received
by or from or for the account of the Fund on behalf of its applicable
Portfolios.
3.12 Collection of Income. The Custodian (or its foreign sub-custodian)
shall use reasonable efforts in accordance with market practice
generally accepted by Institutional Clients to collect all income and
other payments in due course with respect to the securities held
hereunder to which the applicable Portfolio shall be entitled and
shall credit such income, as collected, to the applicable Portfolio.
With respect to Portfolio securities held in an account with a
foreign banking institution as described in Section 3.4 hereof,
income collected with respect to such securities will be allocated to
the Portfolio pro-rata based on the Portfolio's settled and
registered position in such securities. 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 attendant thereto.
Collection of income due each Portfolio on securities
loaned shall be the responsibility of the Fund; the Custodian will
have no duty or responsibility in connection therewith, other than to
provide the Fund with such information or data in its possession as
may be necessary to assist the Fund in arranging for the timely
delivery to the Custodian or its foreign sub-custodians of the
income to which the Portfolio is properly entitled.
3.13 Appointment of Agents. The Custodian (or its foreign sub-custodian)
may at any time or times in its discretion appoint (and may at any
time remove) agents to carry out such of the provisions of this
Article 3 as the Custodian (or its foreign sub-custodian) may from
time to time direct; provided, however, that any such agent shall be
an "eligible foreign
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custodian "within the meaning of Rule 17f-5 under the 1940 Act and
that the appointment of any agent shall not relieve the Custodian
(or such foreign sub-custodian) of its responsibilities or
liabilities hereunder.
3.14 Proxies. The Custodian will generally, with respect to the foreign
securities held under this Article 3, use best efforts accepted by
Institutional Clients to facilitate the exercise of voting and other
shareholder proxy rights, subject always to the laws, regulations and
practical constraints that may obtain in the jurisdiction where such
securities are issued. The Fund acknowledges that local conditions
may have the effect of severely limiting the ability of the Fund to
exercise shareholder rights.
3.15 Communications Relating to Portfolio Securities. The Custodian
shall transmit promptly to the Fund written information (including,
without limitation, pendency of calls and maturities of securities
and expirations of rights in connection therewith) received by the
Custodian via its sub-custodians from issuers of the securities
being held for the account of the applicable Portfolio. With
respect to tender or exchange offers, the Custodian shall transmit
promptly to the Fund written information so received by the
Custodian from issuers of the securities whose tender or exchange is
sought or from the party (or his or its agents) making the tender
or exchange offer. Provided the Custodian has complied with the
requirements in the previous sentence, the Custodian shall not be
liable for any untimely exercise of any tender, exchange or other
right or power in connection with securities or other property of a
Portfolio at any time held by it or its foreign subcustodians
unless (i) it or its foreign subcustodians are in actual possession
of such securities or property and (ii) it receives Proper
Instructions with regard to the exercise of any such right or
power, and both (i) and (ii) occur at least three business days
prior to the date on which such right or power is to be exercised.
With respect to Proper Instructions received by the Custodian
thereafter, the Custodian shall use its best efforts in the light
of local conditions to take the requested action.
3.16 Liability of Foreign Sub-Custodians. Each agreement pursuant to
which the Custodian employs a foreign banking institution as a
foreign sub-custodian shall require the institution (i) to exercise
reasonable care in the performance of its duties and (ii) to
indemnify, and hold harmless, the Custodian and the Fund from and
against any loss, damage, cost, expense, liability or claim arising
out of or in connection with the institution's performance of such
obligations. The Custodian shall take reasonable steps, which, in
the absence of negligence or willful misconduct on the Custodian's
part or on the part of the relevant foreign banking institution,
shall be at the relevant Portfolio's expense, to enforce
effectively (i) the rights of the Custodian and the Fund under such
agreements and (ii), in the event of any loss, damage, cost,
expense, liability or claim arising out of or in connection with
the performance of a foreign securities system, the rights of the
Custodian, the applicable foreign banking institution or the Fund
against such system.
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3.17 Subrogation. If the Custodian shall be unsuccessful in enforcing its
and the Fund's rights as set forth in Section 3.16 hereof, it shall
so inform the Fund, noting the steps it has taken. Thereafter, at
the election of the Fund on behalf of the Portfolio, (a) the Fund
shall be entitled to be subrogated to the rights of the Custodian
with respect to any claims against a foreign banking institution as
a consequence of any such loss, damage, cost, expense, liability or
claim if and to the extent that the Portfolio has not been made
whole for any such loss, damage, cost, expense, liability or claim,
(b) the Fund shall be entitled to be subrogated to the rights of the
Custodian with respect to any claims against a foreign securities
system which the Custodian may have as a consequence of any loss,
damage, cost, expense, liability or claim arising out of or in
connection with the performance by a foreign securities system if
and to the extent that the relevant Portfolio(s) has not been made
whole for any such loss, damage, cost, expense, liability or claim,
and (c) the Custodian shall to the extent allowable under applicable
law, take commercially reasonable steps to procure the subrogation
to the Fund of the foreign banking institution's rights against the
foreign securities system as a consequence of any loss, damage,
cost, expense, liability or claim arising out of or in connection
with the performance by a foreign securities system if and to the
extent that the relevant Portfolio(s) has not been made whole for
any such loss, damage, cost, expense, liability or claim.
3.18 Monitoring Responsibilities. The Custodian shall furnish annually to the
Fund, during the month of June, information concerning each foreign
sub-custodian listed from time to time on Schedule A. Such information
shall be similar in kind and scope to that furnished to the Fund in
connection with the initial approval of this Agreement, but shall
also include a report concerning any recommendations to consider
change of a foreign subcustodian (including the reason for said
change). In addition, the Custodian will provide the Portfolios with
such information as a Portfolio shall reasonably request in order
to enable the Fund to comply with Rule 17f-5. In addition, the
Custodian will promptly inform the Fund in writing in accordance
with Article 17 in the event that the Custodian learns of (i) a
material adverse change in the condition, financial or otherwise,
of a foreign sub-custodian, (ii) any loss of the assets of the
Fund or (iii), in the case of any foreign sub-custodian not the
subject of an exemptive order from the SEC modifying the
shareholder equity requirement under Rule 17f-5, is notified by
such foreign sub-custodian that there appears to be a substantial
likelihood that its shareholders' equity will decline below $200
million or that its shareholders' equity has declined below $200
million (in each case in terms of U.S. dollars or the local currency
equivalent thereof and computed in accordance with generally accepted
U.S. accounting principles).
3.19 State Street London. Cash held for each Portfolio of the Fund in the
United Kingdom shall be maintained in an interest bearing account
established for the Fund with the Custodian's London branch, which
account shall be subject to the direction of the Custodian, State
Street London Ltd. or both.
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3.20 Tax Law. It shall be the responsibility of the Custodian and the foreign
banking institutions to use reasonable efforts and due care to perform
such steps typical for persons acting as global custodian for
Institutional Clients as are required to collect any tax refund, to
ascertain the appropriate rate of tax withholding and to provide such
documents as may be required to enable the Fund to receive appropriate
tax treatment under applicable tax laws and any applicable treaty
provisions. Except to the extent that imposition of such item arises
from the Custodian's or the foreign banking institutions' failure to
perform in accordance with the terms of this Section, the Custodian
shall have no responsibility or liability for any obligations now or
hereafter imposed on the Fund, the Fund's custody account in the
relevant jurisdiction or the Custodian as custodian of the Fund by the
tax law of the domicile of the Fund's custody account in the
jurisdiction or of any jurisdiction in which the Fund is invested or any
political subdivision thereof. Unless otherwise informed by the Fund in
writing, the Custodian, in performance of its duties under this Section,
shall be entitled to apply treatment of the Fund according to the
nationality of the Fund, the particulars of its organization and other
relevant details that shall be supplied by the Fund. The Custodian shall
be entitled to rely on any information supplied in writing by an
authorized representative of the Fund. The Custodian may engage
reasonable professional advisors knowledgeable about the subject matter,
which may include attorneys, accountants or financial institutions in
the regular business of investment administration, and may rely upon
advice received therefrom. It shall be the duty of the Fund to inform
the Custodian of any change in the organization, domicile or other
relevant fact concerning tax treatment of the Fund, and further to
inform the Custodian if the Fund is or becomes the beneficiary of any
special ruling or treatment not applicable to the general nationality
and category of entity of which the Fund is a part under general laws
and treaty provisions.
3.21 Segregated Account. The Custodian shall upon receipt of Proper
Instructions from the Fund on behalf of each applicable Portfolio
establish and maintain, or cause the applicable foreign banking
institution to 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 (i) in accordance with the
provisions of any agreement among the Fund on behalf of the Portfolio,
the Custodian (or such foreign banking institution) 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 or of any registered national securities exchange (or the
Commodity Futures Trading Commission and/or any contract market), or of
any similar organization or organizations, regarding escrow or other
arrangements in connection with transactions by the Portfolio, (ii) for
purposes of segregating cash and/or securities in connection with (a)
options purchased, sold or written by the Portfolio, (b) commodity
futures contracts or options thereon purchased, sold or written by the
Portfolio or (c) other transactions requiring segregation as described
in the Fund's registration statement as in effect from time to time,
(iii) for the purposes of compliance by the Portfolio with the
procedures required by Investment
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Company Act Release No. 10666, or any subsequent release or releases
of the SEC relating to the maintenance of segregated accounts by
registered investment companies and (iv) for other proper corporate
purposes, but only, in the case of this clause (iv), upon receipt of, in
addition to Proper Instructions from the Fund on behalf of the
applicable Portfolio, a Certified Resolution , setting forth the purpose
or purposes of such segregated account and declaring such purposes to be
proper corporate purposes.
4. Payments for Sales or Repurchases or Redemptions of Shares
The Custodian shall receive from the distributor for the Shares or
from the Transfer Agent and deposit into the account of the appropriate
Portfolio such payments as are received for Shares of that Portfolio issued or
sold from time to time by the Fund. The Custodian will provide timely
notification to the Fund on behalf of each 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 but subject to the
limitations of the Charter and any applicable votes of the Board pursuant
thereto, 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.
5. Proper Instruction
Proper Instructions as used throughout this Agreement means a writing
signed or initialed by two persons as the Board shall have from time to time
authorized. Each such writing shall set forth the specific transaction or type
of transaction involved, including a specific statement of the purpose for which
such action is requested. 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
involved. The Fund shall cause all oral instructions to be confirmed in
writing, provided that the fact that such confirming written instructions are
not received by the Custodian shall in no way invalidate the enforceability of
transactions authorized by oral instructions. 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 Sections 2.12, 3.7(j), 3.8(e) and 3.20.
5A. Contractual Settlement
The Custodian shall credit or debit the appropriate cash account of the
applicable Portfolio in connection with the purchase, sale, maturity,
redemption or other disposition of securities and other assets held for the
time being in the Portfolio on an actual settlement basis.
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Notwithstanding the foregoing, with respect to the markets set forth on Schedule
E hereto the Custodian may, in its sole discretion, from time to time agree to
provide a Portfolio with an arrangement whereby the Portfolio will be given the
opportunity of settling the purchase, sale, maturity, redemption or other
disposition of securities to be held in the Portfolio in the manner and subject
to the terms and limitations described in this Article 5A. A transaction to
which these contractual settlement provisions applies shall be called a
"Covered Transaction."
(a) With respect to a Covered Transaction that represents a purchase
of securities, the Custodian shall debit the applicable
Portfolio's cash account in accordance with Proper Instructions as
of the time and date that monies would ordinarily be required to
settle such a transaction in the applicable markets as set forth
on Schedule E hereto. Such amounts shall be re-credited to the
appropriate cash account on settlement date upon Proper
Instructions to the Custodian that the Portfolio has canceled the
Covered Transaction.
(b) With respect to the settlement of a Covered Transaction which is a
sale, maturity, redemption or other disposition, provisional
credit of an amount equal to the net sale, maturity, redemption or
other disposition proceeds of the transaction (the "Settlement
Amount") shall be made to the account 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 required to
settle such transaction in the applicable markets as set forth on
Schedule E. Such provisional credit will be made if the Custodian
has received Proper Instructions with respect to, or reasonable
notice of, the Covered Transaction, as applicable, and if the
Custodian or its agents are in possession of the asset(s)
associated with the Covered Transaction in good deliverable form
and are not aware of any facts which would lead them to reasonably
believe that the Covered Transaction will not settle in the time
period ordinarily applicable to transactions in the applicable
market. In the event that the Custodian determines not to provide
a provisional credit with respect to a particular transaction, the
Custodian will promptly notify the Fund of this determination.
(c) For each Covered Transaction with respect to which the Custodian
shall provide provisional credit in an amount up to the Settlement
Amount (the "Credited Amount"), simultaneously with the making of
such provisional credit, the Fund agrees that the Custodian shall
have, and hereby grants to the Custodian, a first-priority
security interest in any property at any time held for the account
of the applicable Portfolio to the full extent of the Credited
Amount.
(d) The Custodian shall have the right, upon sending notice to the
Fund, to reverse any provisional credit given in accordance with
subsection (b) hereof in the event that the actual proceeds of the
subject Covered Transaction have not been received by the
Custodian, its agents or its sub-custodians within thirty (30)
days
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of having made such provisional credit or at any time when the
Custodian believes for reasonable cause that such Covered
Transaction will not settle in accordance with its terms or
amounts due pursuant thereto will not be collectable, as
applicable (in which case the notice required herein will contain
a description of such cause), whereupon (i) the Custodian shall
promptly notify the Fund with respect thereto and (ii) a sum equal
to the Credited Amount shall become immediately payable by the
Fund to the Custodian and may be debited from any cash account
held for benefit of the applicable Portfolio in accordance with
the terms of any notice given hereunder; the Custodian's right to
debit the account as set forth above shall not be contingent on
the giving of notice to the Fund. The amount of any accrued
dividends, interest and other distributions with respect to assets
associated with such Covered Transaction may be set off against
the Credited Amount.
(e) In the event that the Custodian is unable to debit an account of
the Fund, with respect to the applicable Portfolio, and the
Portfolio fails to pay any sums due to the Custodian at the time
the same becomes payable in accordance with subsection (d), and
such failure is not cured within one (1) business day after notice
of such failure to the Fund, or if any of the following conditions
occurs, the Custodian may charge the Fund for reasonable costs and
expenses associated with the provisional credit, including without
limitation the cost of funds associated therewith at the
then-prevailing Federal Funds rate (or local market equivalent
thereof where the Credited Amount was advanced), and the
provisions of subsection (f) will apply:
(1) If a final judgment for the payment of money shall be
rendered against a Portfolio and such judgment shall not
have been discharged or its execution stayed pending appeal
within sixty (60) days of entry or such judgment shall not
have been discharged within sixty (60) days of expiration
of any such stay;
(2) the Fund passing a resolution for its voluntary winding-up
(otherwise than for the purpose of corporate reconstruction
or amalgamation);
(3) the presentation of a petition for the winding-up of or the
making of an administration order in relation to the Fund;
(4) the appointment of a receiver or administrator over any of
the assets of the Fund; or
(5) the Fund ceasing or threatening to cease to carry on its
business.
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(f) If an event outlined in subsection (e) occurs, including to the
extent permitted by applicable law the events described in (1)
through (5) thereof, the Custodian shall have the right to
immediately execute and foreclose upon its security interest in
any of the assets of the applicable Portfolio.
(g) The Custodian shall not be obliged to transfer any sums credited
to a Portfolio in accordance with subsection (b) to or to the
order or benefit of the Portfolio while any amount which is
payable to the Custodian under this Article 5A remains unpaid.
(h) The operation of the provisions of this Article 5A shall be
without prejudice to any other remedies provided the Custodian in
this Agreement, including without limitation the remedies set
forth in Article 13 hereof, or under any applicable law. The Fund
agrees that the Custodian shall have a right of set-off against
cash held for the applicable Portfolio in any currency for any
amount provided to such Portfolio by the Custodian hereunder or
from time to time arising out of or in connection with this
Agreement, as amended, and/or the operation of any account
hereunder and the Custodian shall have the right to debit such
Portfolio with all or part of such sums and apply or appropriate
the cash in or towards the discharge of such amounts in such
manner and order as is commercially reasonable under the
circumstances. For the purposes of this right of set-off, the
Custodian may make such currency conversions or effect any
transactions in such currencies at the Custodian's then-prevailing
rates at such times as are commercially reasonable under the
circumstances and may effect any transfers between, or entries on,
any account of the applicable Portfolio as is commercially
reasonable under the circumstances.
6. Actions Permitted without Express Authority
The Custodian may in its discretion, without express authority from the
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 the Custodian's
duties under this Agreement as set forth in Schedule B, provided
that all such payments shall be accounted for to the Fund on
behalf of the Portfolio;
2) surrender securities to the issuer or its agent 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
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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 Board.
7. Evidence of Authority
The Custodian shall be protected in acting upon any instructions,
notice, request, consent, certificate or other instrument or paper reasonably
believed by it to be genuine and to have been properly executed by or on behalf
of the Fund. The Custodian may receive and accept a certified copy of a vote of
the Board 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 Board pursuant to the Charter 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.
8. Duties of Custodian with Respect to the Books of Account and
Calculation of Net Asset Value and Net Income
The Custodian shall cooperate with and supply necessary
information to the entity or entities appointed by the Board to keep the books
of account of each Portfolio and/or compute the net asset value per share of
the outstanding Shares of each Portfolio or, if directed in writing to do so by
the Fund on behalf of the Portfolio(s), shall itself keep such books of account
and/or compute such net asset value per share for a fee to be agreed to by the
Custodian and the Fund. If so directed, for a fee to be agreed upon by the
parties at the time of such direction, the Custodian shall also calculate daily
the net income of the Portfolio as described in the Prospectus and shall advise
the Fund and the Transfer Agent daily of the total amount of such net income
and, if instructed in writing by an officer of the Fund to do so, shall advise
the Transfer Agent periodically of the division of such net income among its
various components. The calculations of the net asset value per share and the
daily income of each Portfolio shall be made at the time or times described from
time to time in the Prospectus.
9. Records and Reports
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 the 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, together
with any insurance policies and fidelity or similar bonds maintained by the
Custodian, shall at all times during the regular business hours of the Custodian
be open for inspection by duly authorized officers, employees or agents of the
Fund (including counsel and independent accountants) and
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employees and agents of the SEC and other governmental regulatory authorities
having jurisdiction. The Custodian shall, at the Fund's request, supply the Fund
with a tabulation of securities owned by each Portfolio and held by the
Custodian. When requested to do so by the Fund and for such compensation as
shall be agreed upon between the Fund and the Custodian, the Custodian shall
include certificate numbers in such tabulations.
None of the parties hereto shall, unless compelled to do so by any
court or entity of competent jurisdiction either before or after the termination
of this Agreement, disclose to any person not authorized by the relevant party
to receive the same any confidential information relating to such party and to
the affairs of such party of which the party disclosing the same shall have
become possessed during the period of this Agreement and each party shall use
its best endeavors to prevent any such disclosure as aforesaid.
The Custodian shall send to the Fund an advice or notification of any
transfers of securities to or from the custody accounts indicating, as to
securities acquired for the Fund, the identity of the entity having physical
possession of such securities.
In addition to reports required to be provided elsewhere herein, the
Custodian agrees to provide to the Fund (i) the reports set forth on Schedule D
hereto, as amended from time to time, at such times as set forth on such
Schedule and in substantially the forms provided to the Fund, and (ii) any other
special and periodic reports related to the services to be provided hereunder as
the Fund may reasonably request and as may be mutually agreed upon by the
parties.
The Custodian agrees to attend periodic meetings of the Board to
discuss the operations to be performed under this Agreement at such times and at
such places as the Fund may reasonably request.
The Custodian shall provide GlobalQuest(R) software to the parties
and at the locations specified on attached Schedule C pursuant to the terms of
the Remote Access Services Addendum to Custodian Agreement at no additional
charge other than as provided therein.
10. Opinion by Fund's Independent Accountant
The Custodian shall take all reasonable action, as the Fund on behalf
of each applicable Portfolio may from time to time request, to obtain from year
to year favorable opinions from the Fund's independent accountants with respect
to the Custodian's activities hereunder in connection with the preparation of
the Fund's Form N-1A, Form N-SAR and any other special or periodic reports to
the SEC and with respect to any other SEC requirements.
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11. Disaster Recovery; Banker's Blanket Bond
In the event of equipment failures beyond the Custodian's control,
the Custodian shall, at no additional expense to a Portfolio, take reasonable
steps to minimize service interruptions. The Custodian shall enter into and
shall maintain in effect with appropriate parties one or more agreements making
reasonable provision for (i) periodic back-up of the computer files and data
with respect to a Portfolio and (ii) emergency use of electronic data processing
equipment to provide services under this Agreement and the Remote Access
Services Addendum hereto.
The Custodian hereby warrants to the Fund that the Custodian is
maintaining a Bankers' Blanket Bond in a commercially reasonable amount, and the
Custodian hereby agrees to notify the Fund in the event its Bankers' Blanket
Bond is canceled or otherwise lapses.
12. Compensation of Custodian
The Custodian shall be entitled to reasonable compensation for its
services and expenses as Custodian as set forth on Schedule B hereto, as such
Schedule B may be amended in writing from time to time by the Fund, on behalf of
each applicable Portfolio, and the Custodian.
13. Responsibility of Custodian
The Custodian shall exercise reasonable care in carrying out the
provisions of this Agreement and Proper Instructions.
The Custodian shall be responsible for the acts and omissions of
(i) sub-custodians located in the United States of America appointed pursuant to
Article 1 hereof, (ii) foreign banking institutions appointed pursuant to the
terms of Article 3 hereof as if such acts and omissions were those of the
Custodian, and (iii) Japan Securities Depository Center ("JASDEC"), Euroclear
and Cedel Bank S.A.
So long as and to the extent that it exercises 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 kept indemnified by (to the extent of
the assets in the applicable Portfolio(s)) and shall be without liability to the
Fund for any action taken or omitted by it in good faith without negligence or
willful misconduct on its part or on the part of its sub-custodians or agents.
The Custodian shall be entitled reasonably to rely on and may act upon advice of
counsel
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experienced in the pertinent area of law (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.
Except as may arise from the Custodian's own negligence or willful
misconduct or the negligence or willful misconduct of a sub-custodian, agent or
nominee, the Custodian shall be without liability to the 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, (a) the interruption, suspension or
restriction of trading on or the closure of any securities markets, and (b)
power or other mechanical or technological failures or interruptions, computer
viruses or communications disruptions, recognizing in each such case the
obligation of the Custodian, its subcustodians, agents and nominees to take
reasonable steps as circumstances require to minimize the effect of such
failures, interruptions, viruses and disruptions; (ii) errors by the Fund or its
investment advisor in their instructions to the Custodian provided such
instructions have been given in accordance with this Agreement; (iii) the
insolvency of or acts or omissions by a Securities System except to the extent
set forth in subparagraph (iii) in the second paragraph of this Section 13; (iv)
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 of payment
made in connection with securities sold; (v) any delay or failure of any
company, corporation, or other body in charge of registering or transferring
securities in the name of the Custodian, the 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; (vi) delays or
inability to perform its duties due to any disorder in market infrastructure
with respect to any particular security or Securities System; (vii) any
provision of any present or future law or regulation or order of the United
States, or any other country, or political subdivision thereof or of any court
of competent jurisdiction; and (viii) any loss where the Custodian, its
sub-custodian, its agent or its nominee has otherwise exercised reasonable
care. Regardless of whether assets are maintained in the custody of a foreign
banking institution or a foreign securities system, the Custodian shall not be
liable for "country risk", i.e., any loss, damage, cost, expense, liability or
claim resulting from, or caused by, the direction of or authorization by the
Fund to maintain custody of any securities or cash of the Fund or of a Portfolio
in a foreign country including, but not limited to, losses resulting from
nationalization, expropriation, imposition of currency controls or restrictions,
acts of war or terrorism, riots, revolutions, work stoppages, natural disasters
or other similar events or acts. Notwithstanding the foregoing, in delegating
custody duties to State Street London Ltd., the Custodian shall not be relieved
of any responsibility to the Fund for any loss due to such delegation, except
such loss as may result from (a) political risk (including, but not limited to,
exchange control restrictions, confiscation, expropriation, nationalization,
insurrection, civil strife or armed hostilities) or (b) other losses (excluding
a bankruptcy or insolvency of State Street London Ltd. not caused by political
risk) due to Acts of God, nuclear incident or other losses, provided that the
Custodian and State Street London Ltd. have exercised reasonable care.
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If the 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, the 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
the Custodian.
If the Fund requires the Custodian, its affiliates, subsidiaries or agents,
to advance cash or securities for any purpose (including but not limited to
securities settlements, the purchase or sale of foreign exchange or of contracts
for foreign exchange, and assumed settlement) for the benefit of a Portfolio,
any property at any time held for the account of the applicable Portfolio shall
be security therefor and should the Fund fail to repay the Custodian promptly,
the Custodian shall (a) promptly notify the Fund with respect thereto and (b) be
entitled to utilize available cash and to dispose of such Portfolio's assets to
the extent necessary to obtain reimbursement, provided that such utilization
shall not be contingent on the giving of notice to the Fund.
In the event that the Custodian or its nominee shall incur or be assessed
any taxes (except as are directly attributable to income, franchise or similar
taxes which may be imposed on or assessed against the Custodian, its affiliates,
subsidiaries, agents, or nominees) accruing to the Custodian, its affiliates,
subsidiaries or agents in the course of its or their performance of this
Agreement, including without limitation taxes on dividends, interest and capital
gain earned with respect to Portfolio assets, except such as may arise from its
or its nominee's own negligent action, negligent failure to act or willful
misconduct, any property at any time held for the account of the applicable
Portfolio shall be security therefor and the Custodian shall (a) provide the
Fund with three (3) New York business days' notice with respect thereto and (b),
in the event such matter has not been resolved within such time, be entitled to
utilize available cash and to dispose of such Portfolio's assets to the extent
necessary to obtain reimbursement.
In the event that the Custodian or its nominee shall be subject to any
claims or liabilities accruing to the Custodian, its affiliates, subsidiaries or
agents in the course of its or their performance of this Agreement, which claims
or liabilities either (i) are described on Schedule B hereto or (ii) could not
reasonably have been anticipated by the Custodian on the date hereof, except
such as may arise from its or its nominee's own negligent action, negligent
failure to act or willful misconduct, any property at any time held for the
account of the applicable Portfolio shall be security therefor and the Custodian
shall (a) provide the Fund with three (3) New York business days' notice with
respect thereto and (b), in the event such matter has not been resolved within
such time, be entitled to utilize available cash and to dispose of such
Portfolio's assets to the extent necessary to obtain reimbursement.
Upon the Custodian becoming aware in the course of the performance of its
duties hereunder of the occurrence of any event with respect to the assets of a
Portfolio held by the Custodian or its sub-custodian or agent hereunder which
causes or may cause any loss, damage, cost, expense or other liability to a
Portfolio, the Custodian shall promptly notify an authorized
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person of the Fund and, at the Fund's request, assist the Fund in using all
commercially reasonable key steps under the circumstances to mitigate the
effects of such event and to avoid continuing harm to the Portfolio. If the
steps referred to in the previous sentence would be, in the reasonable
determination of the Custodian, beyond the normal scope of the Custodian's
services as a global custodian of mutual fund assets, the taking of those steps
shall be at the Fund's expense.
In no event shall the Custodian be liable hereunder for indirect, special
or consequential damages.
14. Effective Period, Termination and Amendment
This Agreement shall become effective as of the date set forth below, 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 in writing 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 (i)
in the case of termination by a Portfolio not sooner than one hundred eighty
(180) days after the date of such delivery or mailing or (ii) in the case of
termination by the Custodian not sooner than one hundred twenty (120) days after
the date of such delivery or mailing, except that, in the event of a breach of
this Agreement on the part of the Fund, such termination shall not take effect
sooner than sixty (60) days thereafter; provided, however that the Custodian
shall not, with respect to a Portfolio, act under Section 2.10 hereof in the
absence of receipt of an initial certificate of the Secretary or an Assistant
Secretary that the Board has approved the initial use of a particular Securities
System by such Portfolio, as required by Rule 17f-4 under the 1940 Act and that
the Custodian shall not, with respect to a Portfolio, act under Section 2.11
hereof in the absence of receipt of an initial certificate of the Secretary or
an Assistant Secretary that the Board has approved the initial use of the Direct
Paper System by such Portfolio; provided further, however, that the Fund shall
not amend or terminate this Agreement in contravention of any applicable federal
or state regulations, or any provision of the Charter, and further provided,
that the Fund on behalf of one or more of the Portfolios may at any time by
action of the 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 relevant Federal or State
agency or upon the happening of a like event at the direction of an appropriate
regulatory agency or court of competent jurisdiction.
Upon termination of this Agreement, the 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 the Custodian's reasonable out-of-pocket costs,
expenses and disbursements in connection therewith, such termination to be
conducted in a professional and businesslike manner.
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15. Ownership Certificates for Tax Purposes
The Custodian shall, in its capacity as the Fund's agent, execute
ownership and other certificates and affidavits for all governmental purposes in
connection with receipt of income or other payments with respect to securities
or other assets of each Portfolio held by it and in connection with transfers of
such securities or assets.
16. Successor Custodian
If a successor Custodian shall be appointed by the Board, the Custodian
shall, upon termination, deliver to such successor Custodian at the offices of
the Custodian, duly endorsed and in the form for transfer, all securities, funds
and other properties 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. If no such successor Custodian
shall be appointed, the Custodian shall, in like manner, upon receipt of a
Certified Resolution, deliver at the offices of the Custodian and transfer such
securities, funds and other properties in accordance with such resolution. In
the event that no written order designating a successor Custodian or Certified
Resolution 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 $200,000,000, 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. 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 the Fund to procure the Certified Resolution referred to or of the
Board to appoint a successor Custodian, 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.
17. 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 in writing by any party from time to time. If
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notice is sent by confirming telegram, cable, telex, or facsimile sending
device, it shall be deemed to have been given immediately if confirmed in
writing by overnight delivery. If notice is sent by first-class mail, it shall
be deemed to have been given five days after it has been mailed. If notice is
sent by messenger, it shall be deemed to have been given on the day it is
delivered.
To the Company: [NAME OF APPROPRIATE FUND]
c/o Credit Suisse Asset Management, LLC
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000, XXX
Attention: Xxx Xxxxxx, General Counsel
Telephone: 000-000-0000
Telecopy: 000-000-0000
To the Custodian: STATE STREET BANK AND TRUST COMPANY
0000 Xxxxxxxx Xxxxx
Xxxxx Xxxxxx, Xxxxxxxxxxxxx 00000, XXX
Attention: Xxxx X. Xxxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
18. Headings
The section headings in this Agreement are for the convenience of
reference only and do not form a part of this Agreement.
19. Counterparts
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
20. Additional Funds
In the event that the Fund establishes one or more series of Shares in
addition to the Portfolios set forth on Exhibit I hereto with respect to which
it desires to have the Custodian render services as custodian under the terms
hereof, and the Custodian wishes to provide such services, the parties will
execute a revised Exhibit I. Upon execution thereof, such series of Shares shall
became a Portfolio hereunder.
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21. 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.
22. Prior Agreements
This Agreement supersedes and terminates, as of the date hereof, all
prior agreements between the Fund and the Custodian relating to the custody of
the assets of the Portfolio(s).
23. Recourse Against Shareholders, Officers and Trustees
This Agreement is executed by the officers of the Fund in their capacity
as such and not individually. Any responsibility or liability of the Fund (or a
particular Portfolio) under any provision of this Agreement shall be satisfied
solely from the assets of the Fund or the particular Portfolio, tangible or
intangible, realized or unrealized, and in no event shall the Custodian, a
sub-custodian or agent have any recourse against the shareholders, officers or,
to the extent applicable, trustees of the Fund under this Agreement or against
any one Portfolio for the obligations of any other Portfolio.
24. Reproduction of Documents.
This Agreement and all schedules, exhibits, attachments and amendments
hereto may be reproduced by any photographic, photostatic, microfilm,
micro-card, miniature photographic or other similar process. The parties hereto
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.
25. Shareholder Communications Election
SEC Rule 14b-2 under the Securities Exchange Act of 1934, as amended,
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 the Fund to indicate whether
it authorizes the Custodian to provide the Fund's name, address, and share
position to requesting companies
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whose securities the Fund owns. If the Fund tells the Custodian "no", the
Custodian will not provide this information to requesting companies. If the
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 the 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.
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IN WITNESS WHEREOF, each of the parties has caused this
rnstrument to be executed in its name and behalf by its duly-authorized
representative and its seal to be hereunder affixed as of the date set forth
above.
EACH FUND LISTED ON EXHIBIT I HERETO SIGNATURE ATTESTED TO BY:
By: /s/ XXX XXXXXX By: /s/ XXXXXX X. XXXXX
------------------------------ ------------------------------
Name: Xxx Xxxxxx Name: XXXXXX X. XXXXX
------------------------------ ------------------------------
Title: Secretary Title: ASSISTANT SECRETARY
------------------------------ ------------------------------
STATE STREET BANK and TRUST COMPANY SIGNATURE ATTESTED TO BY:
By: /s/ XXXXXX X. XXXXX By: /s/ XXXXX XXXXXX
------------------------------ ------------------------------
Name: Xxxxxx X. Xxxxx Name: Xxxxx Xxxxxx
------------------------------ ------------------------------
Title: Vice Chairman & Title: VP & Assoc. Counsel
------------------------------ ------------------------------
Chief Operating Officer
------------------------------
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EXHIBIT I
FUND NAME(1) FORM OF ORGANIZATION
------------ --------------------
Credit Suisse Institutional Fund, Inc. Maryland corporation
- Cash Reserve Portfolio
- Emerging Markets Portfolio
- International Equity Portfolio
- Japan Growth Portfolio
- Major Foreign Markets Portfolio
- Small Company Growth Portfolio
- Small Company Value Portfolio
- Value Portfolio
- Warburg Pincus Post-Venture Capital Portfolio
Warburg Pincus Balanced Fund, Inc.. Maryland corporation
Warburg Pincus Cash Reserve Fund, Inc. Maryland corporation
Warburg Pincus Emerging Maryland corporation
Markets Fund, Inc.
Warburg Pincus Global Fixed Maryland corporation
Income Fund, Inc.
Warburg Pincus Global Post-Venture Maryland corporation
Capital Fund, Inc.
Warburg Pincus Global Health Maryland corporation
Sciences Fund, Inc.
Warburg Pincus International Maryland corporation
Equity Fund, Inc.
--------------------------------------------------
(1) For entities with multiple portfolios, the individual portfolios are
bulleted beneath the Fund name.
37
EXHIBIT I
FUND NAME FORM OF ORGANIZATION
------------ --------------------
Warburg Pincus International Small Maryland corporation
Company Fund, Inc.
Warburg Pincus Japan Growth Fund, Inc. Maryland corporation
Warburg Pincus Japan Small Maryland corporation
Company Fund, Inc.
Warburg Pincus Major Foreign Maryland corporation
Markets Fund, Inc.
Warburg Pincus New York Maryland corporation
Tax Exempt Fund, Inc.
Warburg Pincus Trust Massachusetts business trust
- Emerging Growth Portfolio
- International Equity Portfolio
- Global Post-Venture Capital Portfolio
- Small Company Growth Portfolio
- Value Portfolio
Warburg Pincus Trust II Massachusetts business trust
- Fixed Income Portfolio
Warburg Pincus Worldperks Money Maryland corporation
Market Fund, Inc.
38
EXHIBIT I
FUND NAME FORM OF ORGANIZATION
--------- --------------------
Warburg Pincus Worldperks Tax Exempt Maryland corporation
Money Market Fund, Inc.
Accepted and agreed by:
EACH FUND SET FORTH ABOVE STATE STREET BANK AND TRUST
By: /s/ XXX XXXXXX By: /s/ XXXXXX X. XXXXX
------------------------- -------------------------
Name: Xxx Xxxxxx Name: Xxxxxx X. Xxxxx
------------------------- -------------------------
Title: Secretary Title: Vice Chairman and Chief
------------------------- -------------------------
Operating Officer
Date: *[date] -------------------------
-------------
39
SCHEDULE A
STATE STREET BANK AND TRUST COMPANY
GLOBAL CUSTODY NETWORK
COUNTRY SUBCUSTODIAN DEPOSITORIES
Argentina Citibank, N.A. Caja de Valores S.A.
Australia Westpac Banking Corporation Austraclear Limited
Reserve Bank Information and
Transfer System
Austria Erste Bank der Oesterreichischen Oesterreichische Kontrollbank AG
Sparkassen AG (Wertpapiersammelbank Division)
Bahrain HSBC Bank Middle East None
(as delegate of The Hongkong and
Shanghai Banking Corporation Limited)
Bangladesh Standard Chartered Bank None
Belgium Fortis Bank nv-xx Xxxxxx Interprofessionnelle de Depots et
de Virements de Titres S.A.
Banque Nationale de Belgique
Bermuda The Bank of Bermuda Limited None
Bolivia Citibank, N.A. None
Botswana Barclays Bank of Botswana Limited None
Brazil Citibank, N.A. Companhia Brasileira de Liquidacao e
Custodia
Bulgaria ING Bank N.V. Central Depository AD
Bulgarian National Bank
Canada State Street Trust Company Canada Canadian Depository
for Securities Limited
07/01/00 1
40
SCHEDULE A
STATE STREET BANK AND TRUST COMPANY
GLOBAL CUSTODY NETWORK
COUNTRY SUBCUSTODIAN DEPOSITORIES
Chile Citibank, N.A. Deposito Central de Valores S.A.
People's Republic The Hongkong and Shanghai Shanghai Securities Central Clearing &
of China Banking Corporation Limited, Registration Corporation
Shanghai and Shenzhen branches
Shenzhen Securities Central Clearing
Co., Ltd.
Colombia Cititrust Colombia S.A. Deposito Centralizado de Valores
Sociedad Fiduciaria
Costa Rica Banco BCT S.A. Central de Valores S.A.
Croatia Privredna Banka Zagreb d.d. Ministry of Finance
National Bank of Croatia
Sredisnja Depozitarna Agencija d.d.
Cyprus The Cyprus Popular Bank Ltd. None
Czech Republic Ceskoslovenska Obchodni Stredisko cennych papiru
Banka, A.S.
Czech National Bank
Denmark Den Danske Bank Vaerdipapircentralen (Danish
Securities Center)
Ecuador Citibank, N.A. None
Egypt Egyptian British Bank Misr Company for Clearing, Settlement,
(as delegate of The Hongkong and Depository
and Shanghai Banking Corporation
Limited)
Estonia Hansabank Eesti Vaartpaberite Keskdepositoorium
07/01/00 2
41
SCHEDULE A
STATE STREET BANK AND TRUST COMPANY
GLOBAL CUSTODY NETWORK
COUNTRY SUBCUSTODIAN DEPOSITORIES
Finland Xxxxxx Bank Plc. Finnish Central Securities
Depository
France BNP Paribas Societe Interprofessionnelle
Pour la compensation des
Valeurs Mobilieres
Germany Dresdner Bank AG Xxxxxxxxxxx Xxxxxxx XX, Xxxxxxxxx
Xxxxx Barclays Bank of Ghana Limited None
Greece National Bank of Greece S.A. Bank of Greece, System for
Monitoring Transactions in
Securities in Book-Entry Form
Central Securities Depository
(Apothetirion Titlon AE)
Hong Kong Standard Chartered Bank Central Clearing and
Settlement System
Central Moneymarkets Unit
Hungary Citibank Rt. Kozponti Elszamolohaz es Ertektar
(Budapest) Rt. (KELER)
[Mandatory for Gov't Bonds and
dematerialized equities only; SSB does not use
for other securities]
Iceland Icebank Ltd. None
India Deutsche Bank AG The National Securities Depository Limited
Reserve Bank of India
Central Depository Services India Limited
The HongKong and Shanghai The National Securities Depository Limited
Banking Corporation Limited
Reserve Bank of India
Central Depository Services India Limited
3
42
SCHEDULE A
STATE STREET BANK AND TRUST COMPANY
GLOBAL CUSTODY NETWORK
COUNTRY SUBCUSTODIAN DEPOSITORIES
Indonesia Standard Chartered Bank Bank Indonesia
PT Kustodian Sentral Efek Indonesia
Ireland Bank of Ireland Central Bank of Ireland
Securities Settlement Office
Israel Bank Hapoalim B.M. Tel Aviv Stock Exchange
Clearing House Ltd. (TASE Clearinghouse)
Bank of Israel
(As part of the TASE Clearinghouse system)
Italy BNP Paribas, Italian Branch Monte Titoli S.p.A.
Banca d'Italia
Ivory Coast Societe Generale de Banques Depositaire Central-Banque de Reglement
en Cote d'Ivoire
Jamaica Scotiabank Jamaica Trust and Jamaica Central Securities Depository
Merchant Bank Limited
Japan The Fuji Bank, Limited Japan Securities Depository
Center (JASDEC)
Bank of Japan Net System
Sumitomo Bank, Ltd. Japan Securities Depository
Center (JASDEC)
Bank of Japan Net System
Jordan HSBC Bank Middle East None
(as delegate of The Hongkong and
Shanghai Banking Corporation Limited)
Kenya Barclays Bank of Kenya Limited Central Bank of Kenya
4
43
SCHEDULE A
STATE STREET BANK AND TRUST COMPANY
GLOBAL CUSTODY NETWORK
COUNTRY SUBCUSTODIAN DEPOSITORIES
Republic of Korea The Hongkong and Shanghai Banking Korea Securities Depository
Corporation Limited
Latvia A/s Hansabank Latvian Central Depository
Lebanon HSBC Bank Middle East Custodian and Clearing Center of Financial
(as delegate of The Hongkong and Instruments for Lebanon and the Middle East
Shanghai Banking Corporation Limited) (MIDCLEAR) X.X.X.
Banque du Liban
Lithuania Vilniaus Bankas AB Central Securities Depository of Lithuania
Malaysia Standard Chartered Bank Malaysian Central Depository Sdn.
Malaysia Berhad Bhd.
Bank Negara Malaysia,
Scripless Securities Trading and Safekeeping
Systems
Mauritius The Hongkong and Shanghai Central Depository & Settlement
Banking Corporation Limited Co. Ltd.
Bank of Mauritius
Mexico Citibank Mexico, S.A. S.D. INDEVAL
(Instituto para el Deposito de
Valores)
Morocco Banque Commerciale du Maroc Maroclear
Namibia Standard Bank Namibia Limited -
Netherlands Fortis Bank (Nederland) N.V. Nederlands Centraal Instituut voor
Giraal Effectenverkeer B.V. (NECIGEF)
New Zealand ANZ Banking Group New Zealand Central Securities
(New Zealand) Limited Depository Limited
5
44
SCHEDULE A
STATE STREET BANK AND TRUST COMPANY
GLOBAL CUSTODY NETWORK
COUNTRY SUBCUSTODIAN DEPOSITORIES
Norway Christiania Bank og Verdipapirsentralen (the Norwegian
Kreditkasse ASA Central Registry of Securities)
Oman HSBC Bank Middle East Muscat Securities Market Depository &
(as delegate of The Hongkong and Securities Registration Company, SAOC
Shanghai Banking Corporation Limited)
Pakistan Deutsche Bank AG Central Depository Company of Pakistan
Limited
State Bank of Pakistan
Palestine HSBC Bank Middle East Clearing Depository and Settlement, a
(as delegate of The Hongkong and department of the Palestine Stock
Shanghai Banking Corporation Limited) Exchange
Panama BankBoston, N.A. None
Peru Citibank, N.A. Caja de Valores y Liquidaciones
CAVALI ICLV S.A.
Philippines Standard Chartered Bank Philippines Central Depository Inc.
Registry of Scripless Securities (XXXX)
of the Bureau of Treasury
Poland Citibank (Poland) S.A. National Depository of Securities
(Krajowy Depozyt Papierow Wartosciowych
SA)
Central Treasury Bills Registrar
Portugal Banco Comercial Portugues Central de Valores Mobiliarios
Qatar HSBC Bank Middle East Central Clearing and Registration (CCR)
(as delegate of the HongKong a department of the Doha Securities
and Shanghai Banking Market
Corporation Limited)
6
45
SCHEDULE A
STATE STREET BANK AND TRUST COMPANY
GLOBAL CUSTODY NETWORK
COUNTRY SUBCUSTODIAN DEPOSITORIES
Romania ING Bank N.V. National Securities Clearing,
Settlement and Depository Company
Bucharest Stock Exchange Registry
Division
National Bank of Romania
Russia Credit Suisse First Boston AO, None
Moscow (as delegate of Credit Suisse
First Boston, Zurich)
Singapore The Development Bank of Singapore Central Depository (Pte) Limited
Limited
Monetary Authority of Singapore
Slovak Republic Ceskoslovenska Obchodna Banka, A.S. Stredisko cennych papierov
National Bank of Slovakia
Slovenia Bank Austria Creditanstalt d.d. Klirinsko Depotna Xxxxxx x.x.
Ljubljana
South Africa Standard Bank of South Africa Limited The Central Depository Limited
Strate Ltd.
Spain Banco Santander Central Hispano, S.A. Servicio de Compensacion y
Liquidacion de Valores, S.A.
Banco de Espana, Central de
Anotaciones en Cuenta
Sri Lanka The Hongkong and Shanghai Banking Central Depository System (Pvt)
Corporation Limited Limited
Swaziland Standard Bank Swaziland Limited None
Sweden Skandinaviska Enskilda Banken Vardepapperscentralen VPC AB (the
Swedish Central Securities Depository)
7
46
SCHEDULE A
STATE STREET BANK AND TRUST COMPANY
GLOBAL CUSTODY NETWORK
COUNTRY SUBCUSTODIAN DEPOSITORIES
Switzerland UBS AG SegaIntersettle AG (SIS)
Taiwan - R.O.C. Central Trust of China Taiwan Securities Central Depository
or Co., Ltd.
--------------------------------
(Client Designated Subcustodian)
Thailand Standard Chartered Bank Thailand Securities Depository
Company Limited
Trinidad & Tobago Republic Bank Limited None
Tunisia Banque Internationale Arabe de Societe Tunisienne Interprofessionelle
Tunisie pour la Compensation et de Depots
de Valeurs Mobilieres
Turkey Citibank, X.X. Xxxxx ve Saklama Bankasi A.S.
(TAKASBANK)
Central Bank of Turkey
Ukraine ING Bank Ukraine National Bank of Ukraine
United Kingdom State Street Bank and Trust Central Gifts Office and Central
Company, London Branch Moneymarkets Office
Uruguay BankBoston N.A. None
Venezuela Citibank, N.A. Central Bank of Venezuela
Vietnam The Hongkong and Shanghai Banking None
Corporation Limited
Zambia Barclays Bank of Zambia Limited XxXX Central Shares Depository Limited
Bank of Zambia
8
47
SCHEDULE A
STATE STREET BANK AND TRUST COMPANY
GLOBAL CUSTODY NETWORK
COUNTRY SUBCUSTODIAN DEPOSITORIES
Zimbabwe Barclays Bank of Zimbabwe Limited None
Euroclear (The Euroclear System)/State Street London Limited
Clearstream Banking AG/State Street London Limited
9
48
SCHEDULE B
STATE STREET BANK AND TRUST COMPANY
CUSTODY FEE SCHEDULE
I. CUSTODY
Services as described in the applicable custodian contract, including;
maintaining custody of fund assets, settling portfolio purchases and
sales, reporting buy and sell fails, determining and collecting
portfolio income, making cash disbursements and reporting cash
transactions in local and base currency, withholding foreign taxes,
filing foreign taxes and tax reclaims, monitoring corporate actions, and
reporting portfolio positions.
International and Global Equity Funds Global Assets
First 100 million: 9 basis points
Next 100 million: 8 basis points
As set forth on Attachment 1 hereto 200 million - 1 billion: 7.5 basis points
1 billion - 2 billion: 6 basis points
2 billion - 3 billion: 5.5 basis points
3 billion - 4 billion: 5 basis points
Over 4 billion: 4.5 basis points
Domestic Assets*
See Domestic funds Charges (below)
Global asset schedule subject to renegotiation if over 30% of aggregate foreign
portfolio assets invested in group 3 countries (see below).
Emerging Market Funds Global Assets
See Emerging Market Funds Country Grouping
As set forth on Attachment 1 hereto (below)
Domestic Assets*
See Domestic funds Charges (below)
Japan Sector Funds First 200 million: 6 basis points
200- 500 million: 5.5 basis points
As set forth on Attachment 1 hereto Over 500 million: 5 basis points
If eligible securities are held in JASDEC,
the following schedule shall apply:
Global Assets
First 200 million: 4.5 basis points
Over 200 million: 3.5 basis points
Domestic Assets*
See Domestic funds Charges (below)
Total foreign assets in each fund grouping are aggregated to calculate basis
point charges (cash/currency balances are not included in total assets).
49
SCHEDULE B
STATE STREET BANK AND TRUST COMPANY
Domestic Funds*
---------------
Asset based fees First 5 billion 1.25 basis point
Over 5 billion 1.0 basis point
Transactional fees State Street Repo $7.00 per trans.
DTC/FED/PTC $8.00
Physical settlement $25.00
Paydown $4.00
*Fees will be calculated by aggregating all funds' net domestic assets within
the complex to calculate an average basis point per fund. The average basis
point per fund is then used as the method to allocate charges on a per
portfolio basis.
50
SCHEDULE B
STATE STREET BANK AND TRUST COMPANY
EMERGING MARKET FUNDS
COUNTRY GROUPING
GROUP 1: GROUP 2: GROUP 0
Xxxxxxxxx Xxxxx Xxxxxxx Xxxxxxxxxx
Xxxxxxxxx Xxxxxxxx Chile Botswana
Austria Mexico China Colombia
Belgium Netherlands Czech Republic Cyprus
Brazil New Zealand Ecuador Ghana
Canada Norway Egypt Hungary
Denmark Philippines Greece India
Finland Portugal Israel Ivory Coast
France Singapore Poland Jamaica
Germany South Africa Xxxxxx Xxxxxxxx Xxxxxx
Xxxx Xxxx Xxxxx Sri Lanka Kenya
Indonesia Sweden Taiwan Mauritius
Ireland Switzerland Morocco
Italy Thailand Namibia
Japan Turkey Pakistan
U.K. Peru
Euroclear Russia
Cedel Swaziland
Tunisia
Uruguay
Venezuela
Zambia
Zimbabwe
Group 1: First 200 million: 9 basis points
Next 300 million: 8 basis points
500 million - 1 billion: 7 basis points
1 billion - 2 billion: 6 basis points
Group 2: First 200 million: 25 basis points
Next 300 million: 20 basis points
500 million - 1 billion: 18 basis points
1 billion - 2 billion: 17 basis points
Group 3: First 200 million: 40 basis points
Next 300 million: 38 basis points
500 million - 1 billion: 36 basis points
1 billion - 2 billion: 35 basis points
51
SCHEDULE B
--------------------------------------------------------------------------------
STATE STREET BANK AND TRUST COMPANY
--------------------------------------------------------------------------------
================================================================================
Fees for activities of a non-recurring nature such as fund consolidation
or reorganization, extraordinary security shipments and the preparation
of special reports will be subject to negotiation. Fees for SEC yield
calculation, fund administration activities, self-directed securities
lending transactions, XxXxXx financial reporting, multiple class and
core/feeder accounting, and other special items will be negotiated
separately.
--------------------------------------------------------------------------------
III. OUT-OF-POCKET EXPENSES
--------------------------------------------------------------------------------
A billing for the recovery of applicable out-of-pocket expenses will be
made as of the end of each month and will consist of the following
categories of charges and expenses:
- Fedwire Charges ($5.25 in and $5 out). There will be no charge for Fed Book
Entry transactions.
- There will be no fees and charges for the transfer of assets and/or the
opening of accounts associated with conversions (including, without
limitation, reregistration fees).
- Market Specific Fees. Market Specific Fees shall consist of the following
categories only:
CUSTODY-RELATED CATEGORIES -
ITEM COUNTRIES AS OF OCTOBER 05, 2000
----
stamp duties and marketable securities taxes Australia, Bermuda, Colombia, India,
Indonesia, Japan, Pakistan, Portugal,
Singapore, South Africa, Thailand, United
Kingdom
registration and scrip fees Canada, Finland, Indonesia, Hong Kong,
Malaysia, Morocco, Russia, Singapore, Spain
transportation fees Russia
tariffs, duties or taxes imposed with respect to services (to be determined)
provided pursuant to the data access services addendum
to the applicable custodian contract (other than income,
franchise or similar taxes which may be imposed or
assessed against Street Bank and Trust Company)
52
SCHEDULE B
--------------------------------------------------------------------------------
STATE STREET BANK AND TRUST COMPANY
--------------------------------------------------------------------------------
================================================================================
INVESTMENT-RELATED CATEGORIES -
ITEM COUNTRIES AS OF OCTOBER 05, 2000
---- --------------------------------
crossing and other off-market trading fees [could be any jurisdiction]
debit and remittance (inward/outward) fees Brazil, China, Colombia, Taiwan
brokerage and foreign exchange commissions Chile, Colombia
value added taxes [could be any jurisdiction]
mandatory local administrator charges Chile, India
market-imposed entrance and sustainment fees India
--------------------------------------------------------------------------------
All other charges, if any, will be negotiated with the relevant fund.
--------------------------------------------------------------------------------
IV. PAYMENT
--------------------------------------------------------------------------------
The above fees will be due monthly and charged against the relevant
fund's custodian checking account upon receiving authorization from the
fund.
---------------------------------------------------------------------------------------------
CREDIT SUISSE / WARBURG PINCUS [NAME OF FUND] STATE STREET BANK CORP
By By
------------------------------- -------------------------------
Title Title
------------------------------- -------------------------------
Date Date
------------------------------- -------------------------------
---------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------
53
SCHEDULE C
Pursuant to the terms of (i) the Custodian Agreement dated October 20, 2000
between each of the investment companies listed and described on Exhibit I
thereto and State Street Bank and Trust Company, and (ii) the Remote Access
Services Addendum thereto of even date therewith (the "Remote Access Services
Addendum"), the following persons and/or entities may use the Remote Access
Services (as such term is defined in the Remote Access Services Addendum):
CREDIT SUISSE ASSET MANAGEMENT, LLC
EACH FUND LISTED ON EXHIBIT I HERETO
By: /s/ XXX XXXXXX
---------------------------
Name: Xxx Xxxxxx
---------------------------
Title: Secretary
---------------------------
STATE STREET BANK and TRUST COMPANY
By: /s/ XXXXXX X. XXXXX
---------------------------
Name: Xxxxxx X. Xxxxx
---------------------------
Title: Vice Chairman &
---------------------------
Chief Operating Officer
---------------------------
Date: October 20, 2000
---------------------------
36
54
SCHEDULE C
REMOTE ACCESS SERVICES ADDENDUM TO CUSTODIAN AGREEMENT
ADDENDUM to the AGREEMENT between each of the investment companies listed
and described on Exhibit I to the Custodian Agreement (each, the "Customer") and
State Street Bank and Trust Company ("State Street").
PREAMBLE
WHEREAS, State Street has been appointed as custodian of certain assets
of the Customer pursuant to that Custodian Agreement dated October 20, 2000 (the
"Custodian Agreement");
WHEREAS, State Street has developed and utilizes proprietary accounting
and other systems, including State Street's proprietary Multicurrency HORIZON
Accounting System, in its role as custodian of the Customer, and maintains
certain Customer-related data ("Customer Data") in databases which databases are
under the control and ownership of State Street (the "Remote Access Services");
and
WHEREAS, State Street makes available to the Customer certain Remote
Access Services solely for the benefit of the Customer, and intends to provide
additional services, consistent with the terms and conditions of this Addendum.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, and for other good and valuable consideration, the parties
agree as follows:
1. SYSTEM AND REMOTE ACCESS SERVICES
a. System. Subject to the terms and conditions of this Addendum,
State Street hereby agrees to provide the Customer with access to State Street's
Multicurrency HORIZONS Accounting System and the other information systems
(collectively, the "System") as described in Attachment A, on a remote basis for
the purpose of obtaining reports, solely on computer hardware, system software
and telecommunication links of the Customer, or certain third parties approved
by State Street that provide services to the Customer (the "Service Provider")
or on any designated substitute or back-up equipment configuration with State
Street's written consent, such consent not to be unreasonably withheld.
b. Remote Access Services. State Street agrees to make available to
the Customer the Remote Access Services subject to the terms and conditions of
this Addendum and date or remote access operating standards and procedures as
may be issued by State Street from time to time. The ability of the Customer to
originate electronic instructions to State Street on behalf of the Customer in
order to (i) effect the transfer or movement of cash or securities held under
custody by State Street, (ii) transmit accounting or other information (such
transactions are referred to herein as "Client Originated Electronic Financial
Instructions"), and (iii) access data for the purpose of reporting and analysis,
shall be deemed to be Remote Access Services for purposes of this Addendum.
c. Additional Services. State Street shall make available to the
Customer, on terms generally available to State Street's other custody clients
which are investment companies registered under the Investment Company Act of
1940, as amended, additional Systems that are not described in the attachments
to this Addendum that are made available to other U.S-registered investment
company custody clients of State Street. In the absence of any other written
agreement concerning such additional systems, the term "System" shall include,
and this Addendum shall govern, the Customer's access to and use of any
additional System made available by State Street and/or accessed by the
Customer.
55
SCHEDULE C
2. NO USE OF THIRD PARTY SOFTWARE
State Street and the Customer acknowledge that in connection with the
Remote Access Services provided under this Addendum, the Customer will have
access, through the Remote Access Services, to Customer data and to functions of
State Street's proprietary systems; provided, however that in no event will the
Customer have direct access to any third party systems-level software that
retrieves data for, stores data from, or otherwise supports the System.
3. LIMITATION OF SCOPE OF USE
a. Designated Equipment; Designated Locations. The System and the
Remote Access Services shall be used and accessed solely from the offices of
the Customer or certain agents of the Customer (the "Designated Agents") located
in Delaware and New York ("Designated Locations").
b. Configuration; Trained Personnel. State Street shall be
responsible for supplying, installing and maintaining the Customer access to the
System at the Designated Locations. State Street and the Customer agree that
each will engage or retain the services of trained personnel to enable both
parties to perform their respective obligations under this Addendum. State
Street agrees to use commercially reasonable efforts to maintain the System so
that it remains serviceable, provided, however, that State Street does not
guarantee or assure uninterrupted remote access use of the System.
c. Scope of Use. The Customer will xxx the System and the Remote
Access Services only for (x) the processing of securities transactions and (y)
accessing data for informational purposes related to services provided pursuant
to the Custodian Agreement or such other services as the Custodian may from time
to time agree in writing to provide. Neither the Customer, nor its employees or
agents, shall (i) permit any third party (other than a Service Provider) to use
the System or the Remote Access Services, (ii) sell, rent, license or otherwise
use the System or the Remote Access Services for any purpose other than as
expressly authorized under this Addendum, (iii) allow access to the System or
the Remote Access Services through terminals or any other computer or
telecommunications facilities located outside the Designated Locations, (iv)
allow or cause any information (other than portfolio holdings, valuations of
portfolio holdings, and other information reasonably necessary for the
management or distribution of the assets of the Customer) transmitted from State
Street's databases, including data from third party sources, available through
use of the System or the Remote Access Services to be redistributed or
retransmitted to another computer, terminal or other device for other than use
for or on behalf of the Customer or (v) modify the System in any way, including
without limitation, developing any software for or attaching any devices or
computer programs to any equipment, system, software or database which forms a
part of or is resident on the existing configuration through which access is
obtained
d. Other Location. Except in the even of an emergency or of a planned
System shutdown, the Customer's access to services performed by the System or to
Remote Access Services at a Designated Location may be transferred to a
different location only upon the prior written consent of State Street. In the
event of an emergency or System shutdown, the Customer may use any back-up site
agreed to in writing by State Street, which agreement will not be unreasonably
withheld. The Customer may secure from State Street the right to access the
System or the Remote Access Services through computer and telecommunications
facilities or devices at additional locations only upon the prior written
consent of State Street, which consent shall not be unreasonably withheld, and
on terms to be mutually agreed upon by the parties.
2
56
SCHEDULE C
e. Title. Title and all ownership and proprietary rights to the
System, including any enhancements or modifications thereto, whether or not
made by State Street, are and shall remain with State Street.
f. No Modification. Without the prior written consent of State
Street, the Customer shall not modify, enhance or otherwise create derivative
works based upon the System, nor shall the Customer reverse engineer, decompile
or otherwise attempt to secure the source code for all or any part of the
System.
g. Security Procedures. The Customer shall comply with date or remote
access operating standards and procedures and with user identification or other
password control requirements and other security procedures as may be issued
from time to time by State Street for use of the System on a remote basis and to
access the Remote Access Services. The Customer shall have access only to the
Customer Data and authorized transactions agreed upon from time to time by State
Street and, upon notice from State Street, the Customer shall discontinue remote
use of the System and access to Remote Access Services for any security reasons
cited by State Street.
4. PROPRIETARY INFORMATION
a. Proprietary Information. The Customer acknowledges and State
Street represents that the System and the databases, computer programs, screen
formats, report formats, interactive design techniques, documentation and other
information (other than Customer Data) made available to the Customer by State
Street as part of the Remote Access Services and through the use of the System
constitute copyrighted, trade secret, or other proprietary information of
substantial value to State Street. Any and all such proprietary information
provided by State Street to the Customer shall be deemed proprietary and
confidential information of State Street (hereinafter "Proprietary
Information"). The Customer agrees that it will hold such Proprietary
Information in confidence and secure and protect it in a manner consistent with
its own procedures for the protection of its own confidential information and to
take appropriate action by instruction or agreement with its employees who are
permitted access to the Proprietary Information to satisfy its obligations
hereunder. The Customer further acknowledges that State Street shall not be
required to provide the Service Provider with access to the System unless it has
first received from the Service Provider an undertaking with respect to State
Street's Proprietary Information in the form of Attachment B to this Addendum.
The Customer shall use all commercially reasonable efforts to assist State
Street in identifying and preventing any unauthorized use, copying or disclosure
of the Proprietary Information or any portions thereof or any of the logic,
formats or designs contained therein.
b. Cooperation. Without limitation of the foregoing, the Customer
shall advise State Street immediately in the event the Customer learns or has
reason to believe that any person to whom the Customer has given access to the
Proprietary Information, or any portion thereof, has violated or intends to
violate the terms of this Addendum, and the Customer will, at its expense,
cooperate with State Street in seeking injunctive or other equitable relief in
the name of the Customer or State Street against any such person.
c. Injunctive Relief. The Customer acknowledges that the disclosure
of any Proprietary Information, or of any information which at law or equity
ought to remain confidential, will immediately give rise to continuing
irreparable injury to State Street inadequately compensable in damages at law.
In addition, State Street shall be entitled to obtain immediate injunctive
relief against the breach or threatened breach of any of the foregoing
undertakings, in addition to any other legal remedies which may be available.
d. Survival. The provisions of this Section 4 shall survive the
termination of this Addendum.
3
57
SCHEDULE C
5. LIMITATION ON LIABILITY
a. Limitation on Amount and Time for Bringing Action. The Customer
agrees that State Street's liability to the Customer arising out of contract,
strict liability in tort, or any other cause of action under this Addendum for
its provision of Remote Access Services or the System shall be limited to (i)
U.S.$750,000.00 per such cause of action and (ii) a total of U.S.$2,000,000.00
during the term of this Addendum. The parties agree that in the event the
Customer purchases Remote Access Services in addition to GlobalQuest(R), they
will negotiate in good faith with respect to the foregoing damages limitation.
No action, regardless of form, arising out of this Addendum may be brought by
the customer more than two years after the customer has knowledge that the cause
of action has arisen.
b. Warranty. State Street represents and warrants that it has the
right to provide the Customer with access to the System and, to the best of
State Street's knowledge, the System does not infringe upon the intellectual
property rights of third parties. NO OTHER WARRANTIES, WHETHER EXPRESS OR
IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE MADE BY STATE STREET.
WITH RESPECT TO THE SERVICES DESCRIBED HEREIN ONLY (AND NOT IN THE CUSTODIAN
AGREEMENT, STATE STREET SHALL IN NO EVENT BE LIABLE TO THE CUSTOMER OR ANY
OTHER PARTY FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES WHICH MAY ARISE FROM
THE CUSTOMER'S ACCESS TO THE SYSTEM OR USE OF INFORMATION OBTAINED THEREBY.
c. Third-Party Data. Organizations from which State Street may obtain
certain data included in the System or the Remote Access Services are solely
responsible for the contents of such data, and State Street shall have no
liability for claims arising out of the contents of such third-party data,
including, but not limited to, the accuracy
d. Force Majeure. Neither party shall be liable for any costs or
damages due to delay or nonperformance under this Addendum arising out of any
cause or event beyond such party's control, including without limitation,
cessation of services hereunder or any damages resulting therefrom to the other
party, or the Customer as a result of work stoppage, power or other mechanical
failure, computer virus, natural disaster, governmental action, or communication
disruption; provided that State Street shall take reasonable steps under the
facts and circumstances then prevailing to mitigate continuing harm to the
Customer resulting from State Street's nonperformance under this Addendum
arising out of such causes and events.
6. INDEMNIFICATION
The Customer agrees to indemnify and hold State Street harmless from any
loss, damage or expense including reasonable attorney's fees, (a "loss")
suffered by State Street arising from the negligence or willful misconduct in
the use by the Customer of the Remote Access Services or the System, including
any loss incurred by State Street resulting from a security breach at a
Designated Location or committed by the Customer, the Service Provider(s), or
either of their employees or agents.
State Street agrees to defend, indemnify and hold Customer harmless from
and against any claims, suits or damages sustained (including reasonable
attorney's fees) if Customer is called upon to defend any claim that Customer's
use of the System directly infringes any United States patent, trade secret or
copyright, provided (a) Customer promptly notifies State Street in writing of
such claim, and (b) Customer agrees that State Street shall have sole control
over the defense or settlement of such claim.
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58
SCHEDULE C
7. FEES
Fees and charges for the use of the System and the Remote Access Services
and related payment terms, to the extent applicable, shall be as set forth in
Schedule B of the Custodian Agreement, as such Schedule B may be revised from
time to time by the parties ("the Fee Schedule").
8. TRAINING, IMPLEMENTATION AND CONVERSION
a. Training. State Street agrees to provide training, at a designated
State Street training facility or at Designated Location, to the Customer's
personnel in connection with the use of the System. The Customer agrees that it
will set aside, during regular business hours or at other times agreed upon by
both parties, sufficient time to enable all operators of the System and the
Remote Access Services, designated by the Customer, to receive the training
offered by State Street pursuant to this Addendum.
b. Installation and Conversion. State Street shall be responsible for
the technical installation and conversion ("Installation and Conversion") of the
means of access. The Customer shall have the following responsibilities in
connection with Installation and Conversion of the System.
(i) The Customer shall be solely responsible for the timely
acquisition and maintenance of the hardware and software necessary
in order to use the Remote Access Services at the Designated
Locations.
(ii) State Street and the Customer each agree that they will
assign qualified personnel to actively participate during the
Installation and Conversion phase of the System implementation to
enable both parties to perform their respective obligations under
this Addendum.
9. SUPPORT
During the term of this Addendum, State Street agrees to provide the
support services set out in Attachment C hereto.
10. TERM
a. Term. This Addendum shall become effective on the date of its
execution by State Street and shall remain in full force and effect until
terminated as herein provided.
b. Termination of Addendum. Either party may terminate this Addendum
(i) for any reason by giving the other party at least one-hundred and eighty
days' prior written notice in the case of notice of termination by State Street
to the Customer or thirty days' notice in the case of notice from the Customer
to State Street of termination; or (ii) immediately for failure of the other
party to comply with any material term and condition of the Addendum by giving
the other party written notice of termination. In the event the Customer shall
cease doing business, shall become subject to proceedings under the bankruptcy
laws (other than a petition for reorganization or similar proceeding) or shall
be adjudicated bankrupt, this Addendum and the rights granted hereunder shall,
at the option of State Street, immediately terminate with notice to the
Customer. This Addendum shall in any event
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59
SCHEDULE C
terminate as to the Customer within 90 days after the termination of the
Custodian Agreement with respect to such Customer.
c. Termination of the Right to Use. Upon termination of this
Addendum for any reason, any right to use the System and access to the Remote
Access Services shall terminate and the Customer shall immediately cease use of
the System and the Remote Access Services. Immediately upon termination of this
Addendum for any reason, the Customer shall return to State Street all copies of
documentation and other Proprietary Information in its possession and State
Street shall return to Customer all Customer Data in its possession; provided,
however, that in the event that either party terminates this Addendum or the
Custodian Agreement for any reason other than the Customer's breach, State
Street shall provide the Remote Access Services for a period of time and at a
price to be agreed upon by the parties. Should State Street be in possession of
information requested by regulatory agencies having jurisdiction over the
Customer, State Street will cooperate with the Customer to make such information
available to such regulatory agencies for a commercially reasonable time
following termination of this Addendum.
11. MISCELLANEOUS
a. Assignment; Successors. This Addendum and the rights and
obligations of the Customer and State Street hereunder shall not be assigned by
either party without the prior written consent of the other party, except that
State Street may assign this Addendum to a successor of all or a substantial
portion of its business, or to a party controlling, controlled by, or under
common control with State Street.
b. Survival. All provisions regarding indemnification, warranty,
liability and limits thereon, and confidentiality and/or protection of
proprietary rights and trade secrets shall survive the termination of this
Addendum.
c. Entire Agreement. This Addendum and the attachments hereto
constitute the entire understanding of the parties hereto with respect to the
Remote Access Services and the use of the System and supersedes any and all
prior or contemporaneous representations or agreements, whether oral or written,
between the parties as such may relate to the Remote Access Services or the
System, and cannot be modified or altered except in a writing duly executed by
the parties. This Addendum is not intended to supersede or modify the duties and
liabilities of the parties hereto under the Custodian Agreement or any other
agreement between the parties hereto except to the extent that any such
agreement specifically refers to the Remote Access Services or the System. No
single waiver or any right hereunder shall be deemed to be a continuing waiver.
d. Severability. If any provision or provisions of this Addendum
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.
e. Governing Law. This Addendum shall be interpreted and construed
in accordance with the internal laws of The Commonwealth of Massachusetts
without regard to the conflict of laws provisions thereof.
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60
ATTACHMENT A
SYSTEM PRODUCT DESCRIPTION
I. Multicurrency HORIZON(R) Accounting System. The Multicurrency HORIZON(R)
Accounting System is designed to provide lot level portfolio and general ledger
accounting for SEC and ERISA type requirements and includes the following
services: 1) recording of general ledger entries; 2) calculation of daily income
and expense; 3) reconciliation of daily activity with the trial balance, and 4)
appropriate automated feeding mechanisms to (i) domestic and international
settlement systems, (ii) daily, weekly and monthly evaluation services, (iii)
portfolio performance and analytic services, (iv) customer's internal computing
systems and (v) various State Street provided information services products.
II. GlobalQuest(R). GlobalQuest(R) is designed to provide customer access to
the following information maintained on The Multicurrency HORIZON(R) Accounting
System: 1) cash transactions and balances; 2) purchases and sales; 3) income
receivables; 4) tax refund; 5) daily-priced positions; 6) open trades; 7)
settlement status; 8) foreign exchange transactions; 9) trade history; and 10)
daily, weekly and monthly evaluation services.
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ATTACHMENT B
UNDERTAKING
The undersigned understands that in the course of its employment as an
agent of each of the investment companies listed and described on Exhibit I
(each, the "Customer") to the custodian agreement dated October 20, 2000 (the
"Custodian Agreement") it will have access to State Street Bank and Trust
Company's ("State Street") Multicurrency HORIZON(R) Accounting System and other
information systems (collectively, the "System").
The undersigned acknowledges that the System and the databases, computer
programs screen formats, report formats, interactive design techniques,
documentation and other information made available to the Undersigned by State
Street as part of the Remote Access Services provided to the Customer and
through the use of the System constitute copyrighted, trade secret, or other
proprietary information of substantial value to State Street. Any and all such
information provided by State Street to the Undersigned shall be deemed
proprietary and confidential information of State Street (hereinafter
"Proprietary Information"). The Undersigned agrees that it will hold such
Proprietary Information in confidence and secure and protect it in a manner
consistent with its own procedures for the protection of its own confidential
information and to take appropriate action by instruction or agreement with its
employees who are permitted access to the Proprietary Information to satisfy
its obligations hereunder.
The Undersigned will not attempt to intercept data, gain access to data
in transmission, or attempt entry into any system or files for which it is not
authorized. It will not intentionally adversely affect the integrity of the
System through the introduction of unauthorized code or data, or through
unauthorized deletion.
Upon notice by State Street for any reason, any right to use the System
and access to the Remote Access Services shall terminate and the Undersigned
shall immediately cease use of the System and the Remote Access Services.
Immediately upon notice by State Street for any reason, the Undersigned shall
return to State Street all copies of documentation and other Proprietary
Information in its possession. With respect to any dispute arising in
connection with this Undertaking, the Undersigned (i) understands that this
Undertaking shall be construed in accordance with the laws of The Commonwealth
of Massachusetts and (ii) consents to the jurisdiction of the courts of The
Commonwealth of Massachusetts.
Credit Suisse Asset Management, LLC
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
Date:
-------------------------------------
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ATTACHMENT C
SUPPORT
During the term of this Addendum, State Street agrees to provide the
following on-going support services:
a. Telephone Support. The Customer Designated Persons may contact
State Street's HORIZON(R) Help Desk and Customer Assistance Center between the
hours of 8 a.m. and 6 p.m. (Eastern time) on all business days for the purpose
of obtaining answers to questions about the use of the System, or to report
apparent problems with the System. From time to time, the Customer shall
provide to State Street a list of persons, not to exceed five in number, who
shall be permitted to contact State Street for assistance (such persons being
referred to as the "Customer Designated Persons").
b. Technical Support. State Street will provide technical support to
assist the Customer in using the System and the Remote Access Services. The
total amount of technical support provided by State Street shall not exceed 10
business days per year. State Street shall provide such additional technical
support as is expressly set forth in the fee schedule in effect from time to
time between the parties (the "Fee Schedule"). Technical support, including
during installation and testing, is subject to the fees and other terms set
forth in the Fee Schedule.
c. Maintenance Support. State Street shall use commercially
reasonable efforts to correct system functions that do not work according to
the System Product Description as set forth on Attachment A in priority order
in the next scheduled delivery release or otherwise as soon as is practicable.
d. System Enhancements. State Street will provide to the Customer
any enhancements to the System developed by State Street and made a part of the
System; provided that, sixty (60) days prior to installing any such
enhancement, State Street shall notify the Customer and shall offer the
Customer reasonable training on the enhancement. Charges for system enhancements
shall be as provided in the Fee Schedule. State Street retains the right to
charge for related systems or products that may be developed and separately
made available for use other than through the System.
e. Custom Modifications. In the event the Customer desires custom
modifications in connection with its use of the System, the Customer shall make
a written request to State Street providing specifications for the desired
modification. Any custom modifications may be undertaken by State Street in its
sole discretion in accordance with the Fee Schedule.
f. Limitation on Support. State Street shall have no obligation to
support the Customer's use of the System: (1) for use on any computer equipment
or telecommunication facilities which does not conform to the original
configuration of the means of access or (ii) in the event the Customer has
modified the System in breach of this Addendum.
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SCHEDULE D
REPORTS
Description of Report Period of Report
--------------------- ----------------
Open Trades* Daily
Cash Availability Daily (by 10:00 a.m.)
Cash Transaction Statement* Daily
Portfolio Holdings Report* Daily
Failed Trades Report Daily
Corporate Action Report -- (Pre-Notification) Daily
Global Cash Statement* Daily
Currency Balance Report Daily
Cash Transaction Statement* Weekly
Corporate Action Report (Summary) Weekly
Out-for-Transfer Report Weekly
Sedol Holdings Report Weekly
Purchase/Sales Report* Monthly
Broker Top Ten Report* Monthly
Capital Stock Activity Report Monthly
Cash Transaction Statement* Monthly
Corporate Action Report Monthly
Global Cash Statement* Monthly
Failed Trades Monthly
Outstanding Receivables* Monthly
FX Activity Report Monthly
Base Equivalent Cash Statement* Monthly
Corporate Action Final Notification When Applicable
*Also Available Via GlobalQuest(R)
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SCHEDULE E
COUNTRIES/SETTLEMENT SYSTEMS WITH RESPECT TO WHICH
CONTRACTUAL SETTLEMENT MAY BE PROVIDED
Australia
Austria
Belgium
Canada
Denmark
Euroclear
Finland
France
Germany
Hong Kong
Indonesia
Ireland
Italy
Japan
Luxembourg
Malaysia
Mexico
Netherlands
New Zealand
Norway
Philippines
Portugal
Singapore
South Africa
Spain
Sweden
Switzerland
Thailand
United States
United Kingdom
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