Exhibit 8(a)
CUSTODIAN AGREEMENT
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Agreement dated December 27, 1978 between Institutional Liquid Assets, a
Massachusetts business trust (the "Fund"), and State Street Bank and Trust
Company, a Massachusetts banking corporation ("State Street").
1. APPOINTMENT OF CUSTODIAN. The Fund hereby appoints State Street custodian
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of all securities and cash now owned or hereafter acquired by the Fund, and
State Street hereby accepts such appointment, upon the terms and conditions set
forth in this Agreement. The Fund agrees promptly to deliver and pay, or cause
to be delivered and paid, to State Street, as custodian, all securities and cash
now owned or hereafter acquired by the Fund. The Fund further agrees to deliver
to State Street a certified or authenticated copy of its Agreement and
Declaration of Trust (the "Trust Agreement"), a copy of which is also on file
with the Secretary of the Commonwealth of Massachusetts, -and By-laws and all
amendments thereto, a certified copy of the resolution of the Trustees of the
Fund appointing State Street to act in the capacity provided in this Agreement
and authorizing the execution and delivery of this Agreement, and copies of such
resolutions, contracts and other documents of the Fund as may be required by
State Street in the performance of its duties hereunder. It is understood that
(a) the Fund is an open end, diversified management investment company
registered under the Investment Company Act of 1940 ("1940 Act") as a series
company with multiple portfolios (each such portfolio being referred to herein
as a "Portfolio" and all such portfolios being collectively referred to herein
as the "Portfolios"), and (b) pursuant to section 18(f) (2) of the 1940 Act each
series of the Fund's Units (as defined in the Trust Agreement), representing the
interest in a Portfolio, is preferred over all other series in respect of the
assets specifically allocated to such Portfolio.
2. CUSTODY OF CASH; BANK ACCOUNTS. State Street will hold all cash of each
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Portfolio, other than cash held by such Portfolio in an account established and
maintained in accordance with Rule 17f-3 under the 1940 Act, in the banking
department of State Street in a separate account or accounts in the name of such
Portfolio, subject only to
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draft or order by State Street in accordance with the terms of this Agreement.
If and when authorized by proper instructions in accordance with a vote of the
majority of the Trustees of the Fund, State Street shall open and maintain an
additional account or accounts in such other banks or trust companies as may be
designated by such instructions, provided that each account or accounts shall be
in the name of the State Street in its capacity as custodian and subject only to
its draft or order in accordance with the terms of this Agreement. If requested
by the Fund, State Street shall furnish to the Fund, not later than (a) 20
calendar days after the last business day of each month, a statement reflecting
the current status of its internal reconciliation of the closing balance as of
that day in all bank accounts described in this (S)2 to the balance shown on the
daily cash report for that day rendered to the Fund, and (b) within 5 calendar
days after receipt thereof the bank statement for such month with respect to the
additional account or accounts referred to in the preceding sentence. State
Street is hereby authorized to endorse and collect all checks, drafts or other
orders for the payment of money received by it for the account of any Portfolio.
State Street will make such arrangements with the transfer agent of the
Fund as will enable State Street to make certain it receives the cash
consideration due to the Fund for Units of the Fund as may be issued or sold
from time to time by the Fund. In connection with such issuance of Units, State
Street shall make such arrangements with the transfer agent as shall insure the
timely notification to the transfer agent and to the Fund of the receipt of
Federal funds by State Street by means of the Federal Reserve Wire System or of
the receipt of funds by other bank wire transfers in payment for the issuance of
such Units..
At 9:00 a.m. on the second business day after the deposit of a check into
any of the Fund's accounts, State Street agrees to make Federal funds available
to the Fund in the amount of the check.
3. CUSTODY OF SECURITIES.
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A. RECEIPT OF SECURITIES. State Street will hold in a separate
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account, and physically segregated at all times from those of any persons,
firms, corporations or other Portfolios, pursuant to the provisions hereof, all
securities received by it for or for
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the account of a Portfolio. All such securities shall be held or disposed of by
State Street for, and subject at all times to the instructions of, the Fund
pursuant to the terms of this Agreement. State Street shall have no power or
authority to assign, hypothecate, pledge or otherwise dispose of any such
securities, except pursuant to proper instructions and only for the account of
the Fund as set forth in (S)5. Any securities delivered to State Street other
than in bearer form shall be properly endorsed and in form for transfer or shall
be in the name of State Street, the Fund or a nominee of State Street or the
Fund.
B. REGISTERED NAME; NOMINEES. State Street shall register securities
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of the Fund held by it under this Agreement, other than those in bearer form, in
the name of the Fund or State Street or a nominee of the Fund or State Street.
Securities of the Fund held by an agent appointed pursuant to (S)8A or a sub-
custodian appointed pursuant to (S)8B may be registered in the name of such
agent or sub-custodian or a nominee of such agent or sub-custodian.
C. RECORD KEEPING AND INVENTORY. State Street shall maintain records
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of all receipts, deliveries and locations of securities held by it under this
Agreement, together with a current inventory thereof, and shall conduct periodic
physical inspections of certificates representing such securities in such manner
as State Street shall determine to be advisable or the Fund may reasonably
request from time to time in order to verify the accuracy of such inventory.
With respect to securities held by any agent appointed pursuant to (S)8A or any
sub-custodian appointed pursuant to (S)8B, State Street may rely upon
certificates of the agent or sub-custodian as to its holdings, it being
understood that such reliance in a no way relieves State Street of its
responsibilities under this Agreement. State Street will promptly report to the
Fund the results of such inspections, indicating any shortages or discrepancies
uncovered thereby, and will take appropriate action to remedy any such shortages
or discrepancies.
D. USE OF FEDERAL BOOK - ENTRY SYSTEM. State Street may deposit all
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or any part of the securities held by it hereunder and eligible therefore in the
book entry system covered by Rule 17f4(b)(2) under the 1940 Act; provided,
however, that (a) State Street, each agent appointed pursuant to (S)8A and each
sub-custodian appointed pursuant to (S)8B shall comply in all respects with
clauses (d)(1) through (d) (4) of Rule 17f4 under
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the 1940 Act, (b) all books and records maintained by State Street and each such
agent and sub-custodian which relate to the Fund's participation in such system
will at all times during regular business hours be open to inspection by the
Fund's duly authorized officers, employees, agents and auditors, and the Fund
will be furnished with all the information in respect of the services rendered
to it as it may require, and (c) in connection with the use of such system,
State Street will be liable to the Fund for any losses or damages relating to
the failure to effectively enforce such rights as may exist against such system,
agent or subcustodian.
4. DISBURSEMENT OF CASH. Upon the receipt of proper instructions, State
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Street shall make payments or disbursements of cash of each Portfolio held by it
or subject to its draft or order under this Agreement, insofar as such cash is
available, only for the following purposes:
A. PURCHASES GENERALLY. To pay for and receive securities purchased for the
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account of such Portfolio, payment being made only upon receipt of the
securities by State Street (or any bank, banking firm, responsible commercial
agent or trust company doing business in the United States and/or any foreign
country and appointed by State Street pursuant to (S)8A as State Street's agent
for this purpose or appointed as sub-custodian pursuant to (S)8B), registered as
provided in (S)3B or in form for transfer satisfactory to State Street. All
securities accepted by State Street shall be accompanied by payment of, or a
"due xxxx" for, any dividends, interest or other distributions of the issuer,
due the purchaser.
B. REPURCHASE AGREEMENTS. In the case of repurchase agreements entered
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into between the Fund and a bank or other financial institutional located in
Boston, Massachusetts, payment will be made on delivery of the receipt
evidencing purchase by such Portfolio of securities owned by State Street or
such other bank or financial institution and written evidence of the agreement
by State Street or such other bank or financial institution to repurchase such
securities from such Portfolio. In the case of repurchase agreements extending
not more than seven days entered into between the Fund and a bank or other
financial institution not located in Boston, Massachusetts:
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(i) State Street is specifically authorized to treat such bank or
other financial institution as though State Street had appointed it as agent
pursuant to (S)8A for the limited purpose of receiving and holding documents
evidencing such repurchase agreements and evidencing the segregation on the
books and records of the bank or financial institutional of the specific
securities purchased under or collateralizing such repurchase agreements;
(ii) State Street shall not be liable for the failure of such bank or
financial institution to fulfill any representations that it has effected such
segregation; and
(iii) State and the Fund agree to use their best efforts to insure
receipt by State Street of copies of such documentation for each such
transaction as promptly as possible.
Except as otherwise provided with respect to repurchase agreements in this
(S)4B, in any and every case of a purchase of securities for the account of such
Portfolio where payment is made by State Street in advance of receipt of the
securities purchased, State Street shall be absolutely liable to the Fund for
such securities to the same extent as if the securities had been received by
State Street.
C. DIVIDENDS AND DISTRIBUTIONS. To release or otherwise apply cash for the
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payment of dividends or other distributions to Unitholders of such Portfolio
which are payable in cash.
D. DISBURSEMENTS AND LIABILITIES. To make or cause to be made disbursements
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for the payment on behalf of the Fund with respect to such Portfolio of
interest, taxes, investment advisory and administration fees and operating
expenses, including registration and qualification costs and other expenses of
issuing and selling Units of such Portfolio or changing its capital structure,
whether or not such expenses shall be in whole or in part capitalized or treated
as deferred expenses.
E. REDEMPTIONS OF FUND UNITS. Subject to the Declaration of Trust, the
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Fund's then current Prospectus and applicable resolutions of the Fund's
Trustees, to make funds available for payment to Unitholders who have delivered
to the Fund's transfer agent a request for redemption of their Units by the Fund
pursuant to such Prospectus. In connection with any such redemption, State
Street is authorized and directed upon receipt
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of instructions from the transfer agent for the Fund, to make funds available
for transfer through the Federal Reserve Wire System or by other bank wire to a
commercial bank account designated by the redeeming Unitholder.
F. OTHER PURPOSES. To make or cause to be made disbursements for any other
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purpose which is declared in such instructions to be a proper trust purpose;
provided, however, that before making any such disbursement State Street shall
have received a copy of a resolution of the Trustees certified by the Secretary
of the Fund specifying the amount of such disbursement, setting forth the
purpose for which such disbursement is to be made, declaring such purpose to be
a proper trust purpose and naming the person(s) to whom the disbursement is to
be made.
5. RELEASE AND DELIVERY OF SECURITIES. State Street shall have sole power to
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release or deliver any securities of a Portfolio held by it pursuant to this
Agreement. Upon receipt of proper instructions, State Street will transfer,
exchange, or deliver securities held by it hereunder only for the following
purposes:
A. SALES. Upon receipt of payment therefore, to deliver securities which
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have been sold for the account of such Portfolio. All such payments shall be
made in Federal funds except in extraordinary circumstances in which event
payment shall be made in clearing house funds.
B. REDEMPTION OR MATURITY. To deliver securities owned for the account of
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such Portfolio 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 payable in respect thereof is to be
delivered to State Street.
C. CHANGES OF NAME AND DENOMINATION. To deliver securities owned for the
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account of such Portfolio to the issuer thereof or its agent for transfer into
the name of the Fund or State Street or a nominee of either, or for exchange of
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 dates and call provisions, if any; provided, that in any such case, the
new securities are to be delivered to Xxxxx Xxxxxx.
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X. XXXXXX XXXXXXXX. To deliver securities owned for the account of such
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Portfolio to the broker or dealer selling the same for examination in accordance
with the then current "street delivery" custom.
E. SECURITIES AS COLLATERAL. To deliver securities owned for the account of
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such Portfolio to any bank or trust company for the purpose of pledge or
hypothecation to secure any loan incurred by the Fund; provided that securities
shall be released only upon payment to State Street of the monies borrowed,
except that in cases where additional collateral is required to secure a
borrowing already made, subject to proper prior authorization, further
securities may be delivered for that purpose. Upon receipt of proper
instructions, State Street shall pay such loan upon redelivery to it of the
securities pledged or hypothecated therefore and upon surrender of the note or
notes evidencing the loan.
F. EXCHANGES, DEPOSITS, TENDERS, ETC. To exchange securities or interim
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receipts or temporary securities held by it or by any agent appointed pursuant
to (S)8A or any sub-custodian appointed pursuant to (S)8B for the account of
such Portfolio for other securities alone or for other securities and cash, and
to expend cash, insofar as cash is available, in connection with any merger,
consolidation, reorganization, recapitalization, conversion or in connection
with the exercise of subscription or purchase rights, or otherwise; to deposit
any such securities and cash in accordance with the terms of any reorganization
or protective plan or otherwise, and to deliver securities to the designated
depository or other receiving agent in response to tender offers or similar
offers to purchase received in writing; provided that:
(i) except as directed by proper instructions received in timely enough
fashion for State Street to act thereon prior to any expiration date (which
shall be presumed to be three business days prior to such date unless State
Street has advised the Fund of a different period) and giving full details of
the time and method of submitting securities in response to any tender or
similar offer, exercising any subscription or purchase right or making any
exchange pursuant to this (S)5F and subject to State Street having fulfilled its
obligations under (S)7C pertaining to notices or announcements, State
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Street shall be under no obligation regarding any tender or similar offer,
subscription or purchased right or exchange except to exercise its best efforts;
(ii) when such securities are in the possession of an agent appointed
pursuant to (S)8A, the proper instructions referred to in the preceding clause
(i) must be received by State Street in timely enough fashion (which shall be
presumed to be four business days unless State Street has advised the Fund of a
different period) for State Street to notify the agent in sufficient time to
permit such agent to act prior to any expiration date; and
(iii) when the securities are in the possession of a sub-custodian
appointed pursuant to (S)8B, the proper instructions must be received by the
sub-custodian in timely enough fashion (which shall be presumed to be three
business days unless the sub-custodian has advised the Fund of a different
period) to permit the sub-custodian to act prior to any expiration date.
G. OTHER PURPOSES. To release or deliver any securities held by it for the
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account of such Portfolio for any other purpose which such instructions declare
to be a proper trust purpose; provided, however, that before making any such
release or delivery State Street shall have received a copy of a resolution of
the Trustees certified by the Secretary of the Fund specifying the securities to
be delivered, setting forth the purpose for which such release or delivery is to
be made, declaring such purpose to be a proper trust purpose and naming the
person(s) to whom such release or delivery is to be made.
6. RECORDS; ACCOUNTS AND REPORTING.
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A. RECORDS. State Street shall create, maintain and retain all
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records relating to its activities and obligations under this Agreement in such
manner as will enable the Fund and State Street to meet their respective
obligations under: (i) the 1940 Act, particularly Sections 30 and 31 thereof,
and the rules and regulations thereunder, including the preparation and filing
of all required periodic and other reports, (ii) applicable Federal and State
tax laws, and (iii) any other law or administrative rule or procedure which may
be applicable to the Fund or State Street. All records maintained by State
Street in connection with the performance of its duties under this Agreement
will
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remain the property of the Fund, shall be returned to the Fund promptly upon
request and, in the event of termination of this Agreement, will be delivered in
accordance with (S)14.
B. ACCOUNTS AND REPORTING. State Street shall keep books of account and
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render statements or copies thereof, form time to time as requested by the
President, the Treasurer or the administrator of the Fund, including interim
monthly and complete quarterly, semi-annual and annual financial statements,
which contain, among other things, a list of the securities for which State
Street is accountable to the Fund under this Agreement as of the end of each
month, and a list of all security transactions that remain unsettled at such
time. It is understood and agreed that the Fund may request and State Street
shall provide each business day a list of the securities for which State Street
is accountable to the Fund under this Agreement as of the end of such day. In
addition, State Street shall promptly notify the Fund's investment adviser by
telephone on each day when there has been a failure to timely settle any
security transaction on that day.
C. ACCESS TO RECORDS. Without limiting (S)3D hereof, subject to security
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requirements of State Street applicable to its own employees having access to
similar records within State Street and such regulations as to the conduct of
such matters as may be reasonably imposed by State Street after prior
consultation with an officer of the Fund or its administrator, the books and
records of State Street pertaining to its actions under this Agreement shall be
open to inspection and audit at reasonable times by the Trustees of, attorneys
for, and auditors employed by, the Fund.
D. COOPERATION WITH THE FUND AND ITS AUDITORS. State Street shall cooperate
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with the Fund and the Fund's independent public accountants in connection with:
(i) the preparation of reports to Unitholders of the Fund, to the Securities and
Exchange Commission (including all required periodic and other reports), to
state "Blue Sky" authorities, and to others, (ii) annual and other audits of the
books and records of the Fund, and (iii) in other matters of a like nature.
State Street shall take all reasonable action necessary for the Fund to obtain
from year to year unqualified opinions from the Fund's independent public
accountants with respect to State Street's activities hereunder in connection
with the preparation of the aforementioned reports and audits.
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7. ADDITIONAL DUTIES OF STATE STREET.
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A. COLLECTIONS. Unless otherwise directed by proper instructions,
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State Street shall collect, receive and deposit in the bank account or accounts
maintained pursuant to (S)2 all income, principal and other payments in respect
of the securities held by it under this Agreement and do all other things
necessary or proper in connection with the collection of such income, principal
and other payments. Without limiting the generality of the foregoing, State
Street shall:
(i) present for payment on the date payment all payment all coupons
and other income items requiring presentation;
(ii) present for payment all securities which may mature or be called,
redeemed, retired or otherwise become payable on the date such securities become
payable;
(iii) endorse and deposit for collection, in the name of the Fund,
checks, drafts or other negotiable instruments on the same day as received;
(iiiv) execute ownership and other certificates and affidavits for all
Federal and State tax purposes in connection with the collection of income; and
(v) notify the Fund as soon as reasonably practicable whenever income,
principal or other payments due on securities are not collected in due course.
In any case in which State Street does not receive any such due and
unpaid income, principal or other payment within a reasonable time after it has
made proper demands for the same (which shall be presumed to consist of at least
three demand letters and at least one telephonic demand), it shall so notify the
Fund in writing, including copies of all demand letters, any written responses
thereto, and memoranda of telephonic demands and oral responses to written and
telephonic demands, and await proper instructions. State Street shall not be
obliged to take legal action for collection unless and until reasonably
indemnified to its satisfaction. State Street, in addition, notify the Fund as
soon as reasonably practicable whenever income due on securities is not
collected in due course.
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B. DISTRIBUTIONS, RIGHTS, ETC.. State Street shall receive and collect all
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distributions, rights and other items of like nature in respect of securities
held by it under this Agreement and deal with the same pursuant to proper
instructions relative thereto.
C. PROXIES, NOTICES, VOTING, ETC. State Street shall promptly deliver or mail
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to the Fund all forms of proxies and all notices of meetings, calls, maturities,
tender offers, exchange offers and expirations of rights and any other notices,
consents, or announcements affecting or relating to securities held by State
Street, its agents appointed pursuant to (S)8A and all sub-custodians appointed
pursuant to (S)8b, and upon receipt of proper instructions, State Street shall
execute and deliver or cause its nominee to execute and deliver such proxies or
other authorizations as may be required. Neither State Street, such agents or
sub-custodians, nor their respective nominees shall vote upon any of the
securities or execute any proxy to vote thereon or give any consent or take any
other action with respect thereto (except as otherwise herein provided) unless
directed so to do by proper instructions.
D. VALUATIONS; NET INCOME COMPUTATION. Unless otherwise directed by proper
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instructions, State Street shall compute and determine, as of 12:00 Noon, Boston
time, and as of the close of trading on the New York Stock Exchange in each case
on each day such Exchange is open for trading, the net asset value of a Unit of
each Portfolio, such computation and determination to be made in accordance with
the Fund's then current prospectus by a vice president, assistant vice president
or assistant secretary of State Street, and shall promptly notify the Fund of
the result of such computation and determination. In computing such net asset
value State Street shall rely upon security quotations received by telephone or
otherwise through the Fund's investment adviser or in a manner otherwise
designated by the Fund by proper instructions and may further rely upon
information or directions furnished to it by the Trustees, any officer or the
administrator of the Fund relative to: (i) liabilities, expense accruals and
reserves of the Fund and (ii) the fair value of any security, right or other
property of the Fund. State Street's liability to the Fund for the accuracy of
quotations received from any source designated by the Fund will be no greater
than the liability which such source, or its provider, has to State Street.
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Unless advised otherwise by proper instructions, State Street shall also
calculate each day the net income of each Portfolio for such day and shall
advise the Fund and its transfer agent daily of the results of such calculation.
Such calculation shall be made in accordance with the Fund's then current
Prospectus.
E. NON-DISCRETIONARY DETAILS. In general, State Street shall attend to all
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nondiscretionary details in connection with the sale, exchange, substitution,
purchase, transfer or other dealing with securities or property of the Fund
except as otherwise from time to time directed by proper instructions.
F. PROCEEDS OF SALE OF UNITS OF FUND. Upon receipt from the Fund or its
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transfer agent of funds, checks or drafts for the purchase of Units of any
portfolio, State Street shall promptly deposit the purchase price in the account
or accounts maintained pursuant to (S)2 for conversion into Federal funds and
notify the Fund and its transfer agent when such action has been completed.
8. APPOINTMENT OF AGENTS AND SUB-CUSTODIANS.
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A. APPOINTMENT OF AGENTS. State Street, as custodian, may at any time or
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times appoint (and may at any time remove) any other bank, trust company or
responsible commercial agent as its agent to carry out such of the provisions of
this Agreement as State Street may from time to time direct, provided that the
appointment of such agent shall not relieve State Street of any of its
responsibilities under this Agreement, except that with respect to repurchase
agreements entered into with banks or other financial institutions located
outside of Boston, Massachusetts, (i) the responsibility of State Street shall
be governed by (S)4B, and (ii) State Street shall have no more responsibility or
liability to the Fund on account of any actions or omissions of any agent so
employed than any such agent has to State Street.
B. APPOINTMENT OF SUB-CUSTODIAN. State Street, as custodian, may from time
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to time employ one or more sub-custodians, but only in accordance with the terms
and conditions set forth in a resolution of the Trustees of the Fund authorizing
the appointment of each particular sub-custodian, it being understood and agreed
that: (i) State Street shall have no more responsibility or liability to the
Fund on account of any actions or omissions of any sub-custodian so employed
than such sub-custodian has to
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Xxxxx Xxxxxx; and (ii) the responsibility or liability of the sub-custodian to
State Street shall conform to the resolution of the Trustees of the Fund
authorizing the appointment of the particular sub-custodian.
9. PROPER INSTRUCTIONS; RELIANCE ON DOCUMENTS.
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A. PROPER WRITTEN INSTRUCTIONS. State Street shall be deemed to have
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received proper instructions upon receipt of written instructions (including
receipt by telecopier, tested telegram, cable or Telex), which may be continuing
instructions, signed by a majority of the Trustees of the Fund or by not less
than two of the persons the Trustees shall have from time to time authorized to
give the particular class of instructions in question. Different persons may be
authorized to give instructions for different purposes, and instructions may be
general or specific in terms. A certified copy of a by-law, resolution or
action of the Trustees of the Fund may be received and accepted by State Street
as conclusive evidence of the authority of any such persons to act and may be
considered to be in full force and effect until receipt of written notice to the
contrary.
B. PROPER ORAL INSTRUCTIONS. The Fund may authorize one or more designated
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persons to issue oral (such term as used herein including, without limitation,
telephoned) instructions, specifying the class or classes of instructions that
may be so issued, in which case the Fund shall deliver to State Street
resolutions of the Trustees to such effect. Such instructions when given in
accordance with the provisions hereof and such resolutions shall be deemed
proper instructions. Two or more of the persons designated by the Trustees to
give oral instructions shall promptly confirm such oral instructions in writing
to State Street; but State Street shall be under no obligation to insist upon
delivery to it of any such written confirmation or to investigate the reason for
its nonreceipt of any such written confirmation. In case of conflict between
oral instructions given by a person designated in the resolution of the Trustees
referred to in the first sentence hereof and any written proper instructions or
any written confirmation or purported confirmation of oral instructions, such
written instructions or written confirmation or purported confirmation, as the
case may be, shall prevail, provided that any transaction initiated by State
Street pursuant to such oral instructions, may, but need
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not, be completed by State Street notwithstanding State Street's receipt of
conflicting written proper instructions or written confirmation or purported
confirmation subsequent to State Street's initiation of such transaction.
C. COMPLIANCE WITH TRUST AGREEMENT. In performing its duties generally, and
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more particularly in connection with the purchase, sale and exchange of
securities made by or for the Fund, State Street may take cognizance of the
provisions of the Trust Agreement and By-laws of the Fund as from time to time
amended; however, except as otherwise expressly provided herein, it may assume
unless and until notified in writing to the contrary that instructions
purporting to be proper instructions received by it are not in conflict with or
in any way contrary to any position of the Trust Agreement and By-laws of the
Fund, as from time to time amended, or resolutions or proceedings of the
Trustees of the Fund.
D. RELIANCE ON DOCUMENTS. So long as and to the extent that it is in the
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exercise of reasonable care, State Street, as custodian: (i) shall not be
responsible for the title, validity or genuineness of any security or property
or evidence of title thereto received by it or delivered by it pursuant to this
Agreement, (ii) shall be protected in acting upon any instruction, notice,
request, consent, certificate or other instrument or paper reasonably believed
by it to be genuine and to have been properly executed in accordance with (S)9A,
and (iii) shall, except as otherwise specifically provided in this Agreement, be
entitled to receive as conclusive proof of any fact or matter required to be
ascertained by it hereunder a certificate signed by any officer of the Fund or
its administrator or any other person authorized by the Trustees of the Fund.
10. RELIANCE ON ADVICE OF COUNSEL; INDEMNITY.
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A. RELIANCE ON THE ADVICE OF COUNSEL. State Street, as custodian, shall be
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entitled to receive, and act upon, advice of counsel (which counsel shall be
selected by State Street with reasonable care based on such counsel's
professional competence and reputation or shall be counsel for the Fund) and
shall be without liability for any action reasonably taken or thing reasonably
done pursuant to such advice, provided that such action taken or thing done is
not in violation of applicable Federal or State laws or regulations and is taken
or done in good faith and without negligence.
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B. INDEMNITY. State Street shall be indemnified and held harmless by the
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Fund for any action taken or thing done by it in carrying out the terms and
provisions of this Agreement if taken or done in good faith and without
negligence or misconduct on State Street's part; provided that: (i) State Street
shall not be entitled to indemnification in those situations where State Street
is liable to the Fund pursuant to (S)3D(c), (ii) State Street will use all
reasonable care to identify and notify the Fund promptly concerning any
situation which presents, or appears likely to present, the probability of such
a claim for indemnification against the Fund, and (iii) in any case in which the
Fund may be asked to so indemnify and hold harmless State Street, the Fund shall
have been fully and promptly advised of all pertinent facts concerning the
situation in question. The Fund, using counsel of its choice, shall have the
option to defend State Street against any claim which may be a subject of this
indemnification and shall be given timely notice by State Street to permit it to
exercise that option as early as possible with respect to such claim. In the
event the Fund so elects to defend State Street, the Fund will notify State
Street, and thereupon the Fund shall take over complete defense of the claim,
and, after it does so, State Street shall incur no further legal or other
expenses for which it shall be entitled to indemnification from the Fund.
State Street shall in no case confess any claim or make any compromise in any
case in which the Fund will be asked to indemnify State Street, except with the
Fund's prior written consent.
11. COMPENSATION; REIMBURSEMENT. The Fund shall pay to State Street, as
---------------------------
custodian, the compensation and expense reimbursement set forth in the schedule
of even date herewith delivered by State Street to the Fund until a different
compensation and expense reimbursement schedule shall be agreed upon in writing
between the parties.
12. EFFECTIVE PERIOD, TERMINATION AND AMENDMENT. This Agreement shall become
-------------------------------------------
effective as of the date of its execution, shall continue in full force and
effect until terminated as hereinafter provided, may be amended at any time by
mutual agreement of the parties hereto and may be terminated by either party by
an instrument in writing delivered or mailed, postage prepaid, to the other
party, such termination to take effect not sooner than 120 days after the date
of such delivery or mailing; provided that the Fund shall not amend or terminate
this Agreement in contravention of any applicable
15
Federal or State laws or regulations, or any provision of the Trust Agreement or
the Fund's By-Laws, as the same may from time to time be amended. The Fund may
at any time by action of its Trustees substitute another bank or trust company
for State Street by giving notice as specified above to State Street. Upon
termination of this Agreement the Fund shall pay to State Street such
compensation as may be due as of the date of such termination in accordance with
(S)11.
13. INTERPRETATIVE AND ADDITIONAL PROVISIONS. In connection with the
-----------------------------------------
operation of this Agreement, State Street and the Fund may agree from time to
time, by written instrument signed by both parties, on such provisions
interpretative of or in addition to the provisions of this Agreement as may in
their joint opinion be consistent with the general tenor of this Agreement,
provided that no such interpretative or additional provisions shall contravene
any applicable Federal or State laws or regulations, or any provision of the
Trust Agreement or the Fund's By-Laws, as the same may from time to time to be
amended. No interpretive or additional provisions made as provided in the
preceding sentence shall be deemed to be an amendment of this Agreement.
14. SUCCESSOR CUSTODIAN.
--------------------
A. APPOINTMENT OF SUCCESSOR BY FUND. If a successor custodian is appointed
--------------------------------
by resolution of the Trustees of the Fund and a certified copy of such
resolution is delivered to Xxxxx Xxxxxx, Xxxxx Xxxxxx shall, upon termination of
this Agreement or substitution of such successor for State Street, deliver to
such successor custodian at the office of State Street, duly endorsed and in
proper form for transfer, all securities then held by State Street hereunder (or
any agent or sub-custodian of State Street) and all funds or other property of
the Fund deposited with or held by State Street hereunder (or any agent or sub-
custodian of State Street).
B. DELIVERY PURSUANT TO UNITHOLDER RESOLUTION.
------------------------------------------
In the event that this Agreement is to be terminated but no new custodian
can be found by the Fund, the Fund shall, before authorizing the delivery of
such securities, funds and other property to anyone other than a successor
custodian, submit to its Unitholders the question of whether the Fund shall be
liquidated or shall function without a custodian. Upon approval by the
Unitholders for the Fund to liquidate or function
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without a custodian State Street shall, in like manner at its office, upon
receipt of a certified copy of a resolution of the Unitholders of the Fund
deliver such securities, funds and other property in accordance with such
resolution.
C. SELECTION OF SUCCESSOR BY STATE STREET. In the event that this Agreement
--------------------------------------
is terminated and no certified resolution of the Trustees of the Fund appointing
a successor custodian or certified copy of a resolution of the Unitholders shall
have been delivered to State Street on or before the date when such termination
shall become effective, then State Street shall have the right to deliver to a
bank or trust company doing business in Boston, Massachusetts, of its own
selection, having an aggregate capital, surplus, and undivided profits, as shown
by its last published report, of not less than $25,000,000, all securities,
funds, property and instruments of the Fund held by State Street under this
Agreement (or any agent or sub-custodian of State Street) and all instruments
held by State Street (or such agent or sub-custodian) relative thereto.
Thereafter, such bank or trust company shall be the successor custodian to State
Street under this Agreement.
D. CONTINUATION AFTER TERMINATION. In the event that securities, funds, and
------------------------------
other property of the Fund remain in the possession of State Street after the
date of termination hereof owing to failure of the Fund to procure the certified
copy of a resolution of its Unitholders above referred to or of the Trustees to
appoint a successor custodian, State Street shall be entitled to fair
compensation for its services during such period and the provisions of this
Agreement relating to the duties and obligations of State Street shall remain in
full force and effect.
15. CIRCULATION OF PRINTED MATTER. The Fund shall not circulate any printed
-----------------------------
matter which contains any reference to State Street without the prior written
approval of State Street, excepting solely such printed matter as merely
identifies State Street as custodian. The Fund will submit printed matter
requiring approval to State Street in draft form, allowing sufficient time for
review by State Street and its counsel prior to any deadline for printing.
16. COMMUNICATIONS. Notices and other writings delivered or mailed postage
--------------
prepaid to the Fund in care of Institutional Liquid Assets, 0000 Xxxxx Xxxxx,
Xxxxxxx, Xxxxxxxx 00000, Attention; Xx. Xxxxxxxxx X. Xxxxxx, or to State Street
may hereafter
17
specify by written notice to the most recent address specified by the party to
whom such notice is addressed, shall be deemed to have been properly delivered
or given hereunder to the respective addressee.
17. GENERAL. This Agreement shall be binding on and shall inure to the
-------
benefit of the Fund and State Street and their respective successors, shall be
construed according to the laws of the Commonwealth of Massachusetts and may be
executed in two or more counterparts, each of which shall be deemed an original.
This Agreement may not be assigned by State Street without the written consent
of the Fund authorized and approved by a resolution of the Trustees. The
headings in this Agreement have been inserted for convenience of reference only
and shall not affect the meaning or interpretation of this Agreement.
18. UNITHOLDER LIABILITY. This Agreement is executed by or on behalf of the
--------------------
Trust and the obligations hereunder are not binding upon any of the Trustees,
officers or Unitholders of the Trust individually but are binding only upon the
Trust and its assets and property.
ATTEST: INSTITUTIONAL LIQUID ASSETS
By Signature illegible By Xxxxxx X. Xxxxxxx
________________________ _________________________
as its Secretary as its President
____________________ _____________________
ATTEST: STATE STREET BANK AND
TRUST COMPANY
By Signature illegible By Signature illegible
________________________ _________________________
as its Asst. Secretary as its Vice President
____________________ _____________________
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