-30-
AMENDED AND RESTATED MASTER CUSTODIAN AGREEMENT
This Amended and Restated Master Custodian Agreement is made as of
September 19, 2005 between each registered investment company identified on
Appendix A hereto (each such registered investment company and each registered
investment company made subject to this Agreement in accordance with Section 18
below shall hereinafter be referred to as the "Fund"), and STATE STREET BANK and
TRUST COMPANY, a Massachusetts trust company (the "Custodian").
WITNESSETH:
WHEREAS, each Fund is registered under the Investment Company Act of
1940, as amended, (the "1940 Act");
WHEREAS, the Funds have appointed the Custodian as custodian of its
assets by those certain Master Custodian Agreements dated as of October 10, 2001
and June 27, 2002 , each as amended (collectively, the "Original Custody
Agreements"), and retained the Custodian to serve as custodian of its assets,
for itself, and, to the extent a Fund is authorized to issue shares of common
stock or shares of beneficial interest in separate series, on behalf of each of
its series set forth on Appendix A hereto (such series together with all other
series subsequently established by a Fund and made subject to this Agreement in
accordance with Section 19 below, shall hereinafter be referred to as the
"Portfolio(s)"; for each Fund not authorized to issue separate series of shares,
all references hereinafter to one or more "Portfolio(s)" shall be deemed to
refer to such Fund); and
WHEREAS, the Funds and Custodian desire to amend and restate the
Original Custody Agreements pursuant to the terms and conditions herein.
NOW THEREFORE, in consideration of the mutual covenants and agreements
hereinafter contained, the parties hereto agree as follows:
SECTION 1. EMPLOYMENT OF CUSTODIAN AND PROPERTY TO BE HELD BY IT
-----------------------------------------------------
Each Fund hereby employs the Custodian as the custodian of certain assets of
such Fund, including securities which the Fund, on behalf of the applicable
Portfolio, desires to be held in places within the United States ("domestic
securities") and securities it desires to be held outside the United States
("foreign securities"). The Fund, on behalf of the Portfolio(s), has delivered
or will deliver to the Custodian all securities and cash of the Portfolios
(other than any securities or cash of the Portfolios held by a futures
commission merchant or commodity clearing organization pursuant to Rule 17f-6
under the 1940 Act), and all payments of income, payments of principal or
capital distributions received by it with respect to all securities owned by the
Portfolio(s) from time to time, and the cash consideration received by it for
such new or treasury shares of beneficial interest of the Fund representing
interests in the Portfolios ("Shares") as may be issued or sold from time to
time. The Custodian shall not be responsible for any property of a Portfolio
held or received by the Portfolio and not delivered to the Custodian. With
respect to uncertificated shares (the "Underlying Shares") of registered
investment companies (hereinafter sometimes referred to as the "Underlying
Portfolios"), the holding of confirmation statements that identify the shares as
being recorded in the Custodian's name on behalf of the Portfolio will be deemed
custody for purposes hereof.
Upon receipt of "Proper Instructions" (as such term is defined in Section 7
hereof), the Custodian shall on behalf of the applicable Portfolio(s) from time
to time employ one or more sub-custodians located in the United States, but only
in accordance with an applicable vote by the Board of Trustees, Board of
Directors, Board of Managers or other governing board, as applicable, of a Fund
(the "Board") on behalf of the applicable Portfolio(s). The Custodian may employ
as sub-custodian for a Fund's foreign securities on behalf of the applicable
Portfolio(s) the foreign banking institutions and foreign securities
depositories designated in Schedules A and B hereto, but only in accordance with
the applicable provisions of Sections 3 and 4. The Custodian shall have no more
or less responsibility or liability to the Fund on account of any actions or
omissions of any sub-custodian so employed than any such sub-custodian has to
the Custodian.
SECTION 2. DUTIES OF THE CUSTODIAN WITH RESPECT TO PROPERTY OF THE
FUND HELD BY THE CUSTODIAN IN THE UNITED STATES
-------------------------------------------------------------
SECTION 2.1 HOLDING SECURITIES. The Custodian shall hold and physically
segregate for the account of each Portfolio all non-cash property, to be held by
it in the United States, including all domestic securities owned by such
Portfolio other than (a) securities which are maintained pursuant to Section 2.8
in a clearing agency which acts as a securities depository or in a book-entry
system authorized by the U.S. Department of the Treasury (each, a "U.S.
Securities System") and (b) the Underlying Shares owned by the Fund which are
maintained pursuant to Section 2.13 in an account with State Street Bank and
Trust Company or such other entity as may from time to time act as a transfer
agent for the Underlying Portfolios and with respect to which the Custodian is
provided with Proper Instructions (the "Underlying Transfer Agent").
SECTION 2.2 DELIVERY OF SECURITIES. The Custodian shall release and
deliver domestic securities owned by a Portfolio held by the Custodian or in a
U.S. Securities System account of the Custodian or in an account at the
Underlying Transfer Agent, only upon receipt of Proper Instructions on behalf of
the applicable Portfolio, which may be continuing instructions when deemed
appropriate by the parties, and only in the following cases:
1) Upon sale of such securities for the account of the Portfolio and
receipt of payment therefor;
2) Upon the receipt of payment in connection with any repurchase agreement
related to such securities entered into by the Portfolio;
3) In the case of a sale effected through a U.S. Securities System, in
accordance with the provisions of Section 2.8 hereof;
4) To the depository agent in connection with tender or other similar
offers for securities of the Portfolio;
5) To the issuer thereof or its agent when such securities are
called, redeemed, retired or otherwise become payable;
provided that, in any such case, the cash or other
consideration is to be delivered to the Custodian;
6) To the issuer thereof, or its agent, for transfer into the
name of the Portfolio or into the name of any nominee or
nominees of the Custodian or into the name or nominee name of
any agent appointed pursuant to Section 2.7 or into the name
or nominee name of any sub-custodian appointed pursuant to
Section 1; or for exchange for a different number of bonds,
certificates or other evidence representing the same aggregate
face amount or number of units; provided that, in any such
case, the new securities are to be delivered to the Custodian;
7) Upon the sale of such securities for the account of the
Portfolio, to the broker or its clearing agent, against a
receipt, for examination in accordance with "street delivery"
custom; provided that in any such case, the Custodian shall
have no responsibility or liability for any loss arising from
the delivery of such securities prior to receiving payment for
such securities except as may arise from the Custodian's own
negligence or willful misconduct;
8) For exchange or conversion pursuant to any plan of merger,
consolidation, recapitalization, reorganization or
readjustment of the securities of the issuer of such
securities, or pursuant to provisions for conversion contained
in such securities, or pursuant to any deposit agreement;
provided that, in any such case, the new securities and cash,
if any, are to be delivered to the Custodian;
9) In the case of warrants, rights or similar securities, the
surrender thereof in the exercise of such warrants, rights or
similar securities or the surrender of interim receipts or
temporary securities for definitive securities; provided that,
in any such case, the new securities and cash, if any, are to
be delivered to the Custodian;
10) For delivery in connection with any loans of securities made
by the Portfolio, 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 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 account in the book-entry system
authorized by the U.S. Department of the Treasury, the
Custodian will not be held liable or responsible under this
Agreement for the delivery of securities owned by the
Portfolio prior to the receipt of such collateral;
11) For delivery in connection with any loans of securities made
by the Fund to a third party lending agent, or the lending
agent's custodian, in accordance with Proper Instructions
(which may not provide for the receipt by the Custodian of
collateral therefor) agreed upon from time to time by the
Custodian and the Fund on behalf of the Portfolio;
12) For delivery as security in connection with any borrowing 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;
13) 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 of the Fund;
14) 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 ("CFTC")
and/or any contract market, or any similar organization or
organizations, regarding account deposits in connection with
transactions by the Portfolio of the Fund;
15) Upon the sale or other delivery of such investments
(including, without limitation, to one or more custodians
(each, a "Repo Custodian") appointed by the Fund on behalf of
a Portfolio and communicated to the Custodian by Proper
Instructions, including Schedule D (as may be amended from
time to time) attached to this Agreement, duly executed by two
authorized officers of the Fund, for the purpose of engaging
in repurchase agreement transactions), and prior to receipt of
payment therefor, as set forth in written Proper Instructions
(such delivery in advance of payment, along with payment in
advance of delivery made in accordance with Section 2.6(8), as
applicable, shall each be referred to herein as a "Free
Trade"), provided that such Proper Instructions shall set
forth (a) the securities of the Portfolio to be delivered and
(b) the person(s) to whom delivery of such securities shall be
made;
16) Upon receipt of instructions from the Fund or 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 currently effective prospectus and statement of
additional information of the Fund related to the Portfolio
(the "Prospectus"), in satisfaction of requests by holders of
Shares for repurchase or redemption;
17) For delivery as initial or variation margin in connection with
futures or options on futures contracts entered into by the
Fund on behalf of the Portfolio; and
18) In the case of a sale processed through the Underlying
Transfer Agent of Underlying Shares, in accordance with
Section 2.13 hereof;
19) For any other purpose, but only upon receipt of Proper
Instructions from the Fund on behalf of the applicable
Portfolio specifying the securities of the Portfolio to be
delivered and naming the person or persons to whom delivery of
such securities shall be made.
SECTION 2.3 REGISTRATION OF SECURITIES. Domestic securities held by the
Custodian (other than bearer securities) shall be registered in the name of the
Portfolio or in the name of any 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 advisor as the Portfolio, or in the name or nominee name of
any agent appointed pursuant to Section 2.7 or in the name or nominee name of
any sub-custodian appointed pursuant to Section 1. All securities accepted by
the Custodian on behalf of the Portfolio under the terms of this Agreement shall
be in "street name" or other good delivery form. If, however, the Fund directs
the Custodian to maintain securities in "street name", the Custodian shall
utilize its best efforts only to timely collect income due the Fund on such
securities and to notify the Fund on a best efforts basis only of relevant
corporate actions including, without limitation, pendency of calls, maturities,
tender or exchange offers.
SECTION 2.4 BANK ACCOUNTS. The Custodian shall open and maintain a
separate bank account or accounts in the United States in the name of each
Portfolio of 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 1940
Act. Funds held by the Custodian for a Portfolio may be deposited by it to its
credit as Custodian in the banking department of the Custodian or in such other
banks or trust companies as it may in its discretion deem necessary or
desirable; provided, however, that every such bank or trust company shall be
qualified to act as a custodian under the 1940 Act and that each such bank or
trust company and the funds to be deposited with each such bank or trust company
shall on behalf of each applicable Portfolio be approved by vote of a majority
of the Board. Such funds shall be deposited by the Custodian in its capacity as
Custodian and shall be withdrawable by the Custodian only in that capacity.
SECTION 2.5 COLLECTION OF INCOME. Subject to the provisions of Section
2.3, the Custodian shall collect on a timely basis all income and other payments
with respect to registered domestic securities held hereunder to which each
Portfolio shall be entitled either by law or pursuant to custom in the
securities business, and shall collect on a timely basis all income and other
payments with respect to bearer domestic securities if, on the date of payment
by the issuer, such securities are held by the Custodian or its agent and shall
credit such income, as collected, to such Portfolio's custodian account. Without
limiting the generality of the foregoing, the Custodian shall detach and present
for payment all coupons and other income items requiring presentation as and
when they become due and shall collect interest when due on securities held
hereunder. Income due each Portfolio on securities loaned pursuant to the
provisions of Section 2.2 (10) shall be the responsibility of the Fund. The
Custodian will have no duty or responsibility in connection therewith, other
than to provide the Fund with such information or data as may be necessary to
assist the Fund in arranging for the timely delivery to the Custodian of the
income to which the Portfolio is properly entitled.
SECTION 2.6 PAYMENT OF FUND MONIES. Upon receipt of Proper Instructions
on behalf of the applicable Portfolio, which may be continuing instructions when
deemed appropriate by the parties, the Custodian shall pay out monies of a
Portfolio in the following cases only:
1) Upon the purchase of domestic securities, options, futures
contracts or options on futures contracts for the account of
the Portfolio but only (a) against the delivery of such
securities or evidence of title to such options, futures
contracts or options on futures contracts to the Custodian (or
any bank, banking firm or trust company doing business in the
United States or abroad which is qualified under the 1940 Act
to act as a custodian and has been designated by the Custodian
as its agent for this purpose) registered in the name of the
Portfolio or in the name of a nominee of the Custodian
referred to in Section 2.3 hereof or in proper form for
transfer; (b) in the case of a purchase effected through a
U.S. Securities System, in accordance with the conditions set
forth in Section 2.8 hereof; (c) in the case of a purchase of
Underlying Shares, in accordance with the conditions set forth
in Section 2.13; (d) in the case of repurchase agreements
entered into between the Fund on behalf of the Portfolio and
the Custodian, or another bank, or a broker-dealer which is a
member of NASD, 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
(e) for transfer to a time deposit account of the Fund in any
bank, whether domestic or foreign; such transfer may be
effected prior to receipt of a confirmation from a broker
and/or the applicable bank pursuant to Proper Instructions
from the Fund as defined herein;
2) In connection with conversion, exchange or surrender of
securities owned by the Portfolio as set forth in Section
2.2 hereof;
3) For the redemption or repurchase of Shares issued as set forth
in Section 6 hereof;
4) For the payment of any expense or liability incurred by the
Portfolio, including but not limited to the following payments
for the account of the Portfolio: interest, taxes, management,
accounting, transfer agent and legal fees, and operating
expenses of the Fund whether or not such expenses are to be in
whole or part capitalized or treated as deferred expenses;
5) For the payment of any dividends on Shares declared pursuant
to the governing documents of the Fund;
6) For payment of the amount of dividends received in respect of
securities sold short;
7) For payment as initial or variation margin in connection with
futures or options on futures contracts entered into by the
Fund on behalf of the Portfolio; and
8) For delivery to a Repo Custodian for the purpose of engaging
in repurchase agreement transactions, which delivery may be
made without contemporaneous receipt by the Custodian of
assets in exchange therefor, and upon which delivery to such
Repo Custodian in accordance with Proper Instructions from the
Fund on behalf of a Portfolio, the Custodian shall have no
further responsibility or obligation to the Fund as a
custodian for the Portfolio with respect to the securities so
delivered (each such delivery, a "Free Trade"), provided that,
in preparing reports of monies received or paid out of the
Portfolio or of assets comprising the Portfolio, the Custodian
shall be entitled to rely upon information received from time
to time from the Repo Custodian and shall not be responsible
for the accuracy or completeness of such information included
in the Custodian's reports until such assets are received by
the Custodian; and
9) For any other purpose, but only upon receipt of Proper
Instructions from the Fund on behalf of the Portfolio
specifying the amount of such payment and naming the person or
persons to whom such payment is to be made.
SECTION 2.7 APPOINTMENT OF AGENTS. The Custodian may at any time or
times in its discretion appoint (and may at any time remove) any other bank or
trust company which is itself qualified under the 1940 Act to act as a
custodian, as its agent to carry out such of the provisions of this Section 2 as
the Custodian may from time to time direct; provided, however, that the
appointment of any agent shall not relieve the Custodian of its responsibilities
or liabilities hereunder. The Underlying Transfer Agent shall not be deemed an
agent or subcustodian of the Custodian for purposes of this Section 2.7 or any
other provision of this Agreement.
SECTION 2.8 DEPOSIT OF FUND ASSETS IN U.S. SECURITIES SYSTEMS. The
Custodian may deposit and/or maintain securities owned by a Portfolio in a U.S.
Securities System in compliance with the conditions of Rule 17f-4 under the 1940
Act, as amended from time to time.
SECTION 2.9 SEGREGATED ACCOUNT. The Custodian shall upon receipt of
Proper Instructions on behalf of each applicable Portfolio establish and
maintain a segregated account or accounts for and on behalf of each such
Portfolio, into which account or accounts may be transferred cash and/or
securities, including securities maintained in an account by the Custodian
pursuant to Section 2.8 hereof, (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 and of
any registered national securities exchange (or the CFTC or any registered
contract market), or of any similar organization or organizations, regarding
escrow or other arrangements in connection with transactions by the Portfolio,
(ii) for purposes of segregating U.S. cash, U.S. Government securities, or other
U.S. securities in connection with swaps arrangements in connection with
transactions by the Portfolio, options purchased, sold or written by the
Portfolio or commodity futures contracts or options thereon purchased or sold by
the Portfolio, (iii) for the purposes of compliance by the Portfolio with the
procedures required by Investment Company Act Release No. 10666, or any
subsequent release of the U.S. Securities and Exchange Commission (the "SEC"),
or interpretative opinion of the staff of the SEC, relating to the maintenance
of segregated accounts by registered investment companies, and (iv) for any
other purpose upon receipt of Proper Instructions from the Fund on behalf of the
applicable Portfolio.
SECTION 2.10 OWNERSHIP CERTIFICATES FOR TAX PURPOSES. The Custodian
shall execute ownership and other certificates and affidavits for all federal
and state tax purposes in connection with receipt of income or other payments
with respect to domestic securities of each Portfolio held by it and in
connection with transfers of securities.
SECTION 2.11 PROXIES. The Custodian shall, with respect to the domestic
securities held hereunder, cause to be promptly executed by the registered
holder of such securities, if the securities are registered otherwise than in
the name of the Portfolio or a nominee of the Portfolio, all proxies, without
indication of the manner in which such proxies are to be voted, and shall
promptly deliver to the Portfolio such proxies, all proxy soliciting materials
and all notices relating to such securities.
SECTION 2.12 COMMUNICATIONS RELATING TO PORTFOLIO SECURITIES. Subject
to the provisions of Section 2.3, the Custodian shall transmit promptly to the
Fund for each Portfolio all written information (including, without limitation,
pendency of calls and maturities of domestic securities and expirations of
rights in connection therewith and notices of exercise of call and put options
written by the Fund on behalf of the Portfolio and the maturity of futures
contracts purchased or sold by the Portfolio) received by the Custodian from
issuers of the securities being held for the Portfolio. With respect to tender
or exchange offers, the Custodian shall transmit promptly to the Portfolio all
written information received by the Custodian from issuers of the securities
whose tender or exchange is sought and from the party (or its agents) making the
tender or exchange offer. If 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 three business days prior to the
date on which the Custodian is to take such action.
SECTION 2.13 DEPOSIT OF FUND ASSETS WITH THE UNDERLYING TRANSFER AGENT.
Underlying Shares shall be deposited and/or maintained in an account or accounts
maintained with the Underlying Transfer Agent. The Underlying Transfer Agent
shall be deemed to be acting as if it is a "securities depository" for purposes
of Rule 17f-4 under the 1940 Act. The Fund hereby directs the Custodian to
deposit and/or maintain such securities with the Underlying Transfer Agent,
subject to the following provisions:
1) The Custodian shall keep Underlying Shares owned by a
Portfolio with the Underlying Transfer Agent provided that
such securities are maintained in an account or accounts on
the books and records of the Underlying Transfer Agent in the
name of the Custodian as custodian for the Portfolio.
2) The records of the Custodian with respect to Underlying Shares
which are maintained with the Underlying Transfer Agent shall
identify by book-entry those Underlying Shares belonging to a
Portfolio;
3) The Custodian shall pay for Underlying Shares purchased for
the account of a Portfolio upon (i) receipt of advice from the
Portfolio's investment manager that such Underlying Shares
have been purchased and will be transferred to the account of
the Custodian, on behalf of the Portfolio, on the books and
records of the Underlying Transfer Agent, and (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 receive confirmation from the Underlying
Transfer Agent of the purchase of such securities and the
transfer of such securities to the Custodian's account with
the Underlying Transfer Agent only after such payment is made.
The Custodian shall transfer Underlying Shares redeemed for
the account of a Portfolio (i) upon receipt of an advice from
the Portfolio's investment manager that such securities have
been redeemed and that payment for such securities will be
transferred to the Custodian and (ii) the making of an entry
on the records of the Custodian to reflect such transfer and
payment for the account of the Portfolio. The Custodian will
receive confirmation from the Underlying Transfer Agent of the
redemption of such securities and payment therefor only after
such securities are redeemed. Copies of all advices from the
Portfolio's investment manager of purchases and sales of
Underlying Shares for the account of the Portfolio shall
identify the Portfolio, be maintained for the Portfolio by the
Custodian, and be provided to the investment manager at its
request;
4) The Custodian shall be not be liable to the Fund for any loss
or damage to the Fund resulting from maintenance of Underlying
Shares with Underlying Transfer Agent except for losses
resulting directly from the negligence, misfeasance or
misconduct of the Custodian or any of its agents or of any of
its or their employees.
SECTION 3. PROVISIONS RELATING TO RULES 17F-5 AND 17F-7
SECTION 3.1. DEFINITIONS. As used throughout this Agreement, the
capitalized terms set forth below shall have the
indicated meanings:
-----------
"Country Risk" means all factors reasonably related to the systemic risk of
holding Foreign Assets in a particular country including, but not limited to,
such country's political environment, economic and financial infrastructure
(including any Eligible Securities Depository operating in the country),
prevailing or developing custody and settlement practices, and laws and
regulations applicable to the safekeeping and recovery of Foreign Assets held in
custody in that country.
"Eligible Foreign Custodian" has the meaning set forth in section (a)(1) of Rule
17f-5, including a majority-owned or indirect subsidiary of a U.S. Bank (as
defined in Rule 17f-5), a bank holding company meeting the requirements of an
Eligible Foreign Custodian (as set forth in Rule 17f-5 or by other appropriate
action of the SEC, or a foreign branch of a Bank (as defined in Section 2(a)(5)
of the 0000 Xxx) meeting the requirements of a custodian under Section 17(f) of
the 1940 Act; the term does not include any Eligible Securities Depository.
"Eligible Securities Depository" has the meaning set forth in section (b)(1) of
Rule 17f-7.
"Foreign Assets" means any of the Portfolios' investments (including foreign
currencies) for which the primary market is outside the United States and such
cash and cash equivalents as are reasonably necessary to effect the Portfolios'
transactions in such investments.
"Foreign Custody Manager" has the meaning set forth in section (a)(3) of Rule
17f-5.
"Rule 17f-5" means Rule 17f-5 promulgated under the 1940 Act.
"Rule 17f-7" means Rule 17f-7 promulgated under the 1940 Act.
SECTION 3.2. THE CUSTODIAN AS FOREIGN CUSTODY MANAGER.
----------------------------------------
3.2.1 DELEGATION TO THE CUSTODIAN AS FOREIGN CUSTODY MANAGER.
The Fund, by resolution adopted by its Board, hereby delegates to the Custodian,
subject to Section (b) of Rule 17f-5, the responsibilities set forth in this
Section 3.2 with respect to Foreign Assets of the Portfolios held outside the
United States, and the Custodian hereby accepts such delegation as Foreign
Custody Manager with respect to the Portfolios.
3.2.2 COUNTRIES COVERED. The Foreign Custody Manager shall be
responsible for performing the delegated responsibilities defined below only
with respect to the countries and custody arrangements for each such country
listed on Schedule A to this Agreement, which list of countries may be amended
from time to time by the Fund with the agreement of the Foreign Custody Manager.
The Foreign Custody Manager shall list on Schedule A the Eligible Foreign
Custodians selected by the Foreign Custody Manager to maintain the assets of the
Portfolios, which list of Eligible Foreign Custodians may be amended from time
to time in the sole discretion of the Foreign Custody Manager. The Foreign
Custody Manager will provide amended versions of Schedule A in accordance with
Section 3.2.5 hereof.
Upon the receipt by the Foreign Custody Manager of Proper Instructions to open
an account or to place or maintain Foreign Assets in a country listed on
Schedule A, and the fulfillment by the Fund, on behalf of the Portfolios, of the
applicable account opening requirements for such country, the Foreign Custody
Manager shall be deemed to have been delegated by the Board on behalf of the
Portfolios responsibility as Foreign Custody Manager with respect to that
country and to have accepted such delegation. Execution of this Agreement by the
Fund shall be deemed to be a Proper Instruction to open an account, or to place
or maintain Foreign Assets, in each country listed on Schedule A in which the
Custodian has previously placed or currently maintains Foreign Assets pursuant
to the terms of the Agreement. Following the receipt of Proper Instructions
directing the Foreign Custody Manager to close the account of a Portfolio with
the Eligible Foreign Custodian selected by the Foreign Custody Manager in a
designated country, the delegation by the Board on behalf of the Portfolios to
the Custodian as Foreign Custody Manager for that country shall be deemed to
have been withdrawn and the Custodian shall immediately cease to be the Foreign
Custody Manager of the Portfolios with respect to that country.
The Foreign Custody Manager may withdraw its acceptance of delegated
responsibilities with respect to a designated country upon written notice to the
Fund. Thirty days (or such longer period to which the parties agree in writing)
after receipt of any such notice by the Fund, the Custodian shall have no
further responsibility in its capacity as Foreign Custody Manager to the Fund
with respect to the country as to which the Custodian's acceptance of delegation
is withdrawn.
3.2.3 SCOPE OF DELEGATED RESPONSIBILITIES:
(a) SELECTION OF ELIGIBLE FOREIGN CUSTODIANS. Subject to the provisions
of this Section 3.2, the Foreign Custody Manager may place and maintain the
Foreign Assets in the care of the Eligible Foreign Custodian selected by the
Foreign Custody Manager in each country listed on Schedule A, as amended from
time to time. In performing its delegated responsibilities as Foreign Custody
Manager to place or maintain Foreign Assets with an Eligible Foreign Custodian,
the Foreign Custody Manager shall determine that the Foreign Assets will be
subject to reasonable care, based on the standards applicable to custodians in
the country in which the Foreign Assets will be held by that Eligible Foreign
Custodian, after considering all factors relevant to the safekeeping of such
assets, including, without limitation the factors specified in Rule 17f-5(c)(1).
(b) CONTRACTS WITH ELIGIBLE FOREIGN CUSTODIANS. The Foreign Custody
Manager shall determine that the contract governing the foreign custody
arrangements with each Eligible Foreign Custodian selected by the Foreign
Custody Manager will satisfy the requirements of Rule 17f-5(c)(2).
(c) MONITORING. In each case in which the Foreign Custody Manager
maintains Foreign Assets with an Eligible Foreign Custodian selected by the
Foreign Custody Manager, the Foreign Custody Manager shall establish a system to
monitor (i) the appropriateness of maintaining the Foreign Assets with such
Eligible Foreign Custodian and (ii) the contract governing the custody
arrangements established by the Foreign Custody Manager with the Eligible
Foreign Custodian. In the event the Foreign Custody Manager determines that the
custody arrangements with an Eligible Foreign Custodian it has selected are no
longer appropriate, the Foreign Custody Manager shall notify the Board in
accordance with Section 3.2.5 hereunder.
3.2.4 GUIDELINES FOR THE EXERCISE OF DELEGATED AUTHORITY. For
purposes of this Section 3.2, the Board, or at the Board's delegation, a Fund's
investment advisor, shall be deemed to have considered and determined to accept,
on behalf of the Fund, such Country Risk as is incurred by placing and
maintaining the Foreign Assets in each country for which the Custodian is
serving as Foreign Custody Manager of the Portfolios.
3.2.5 REPORTING REQUIREMENTS. The Foreign Custody Manager
shall report the withdrawal of the Foreign Assets from an Eligible Foreign
Custodian and the placement of such Foreign Assets with another Eligible Foreign
Custodian by providing to the Board an amended Schedule A at the end of the
calendar quarter in which an amendment to such Schedule has occurred. The
Foreign Custody Manager shall make written reports notifying the Board of any
other material change in the foreign custody arrangements of the Portfolios
described in this Section 3.2 after the occurrence of the material change.
3.2.6 STANDARD OF CARE AS FOREIGN CUSTODY MANAGER OF A
PORTFOLIO. In performing the responsibilities delegated to it, the Foreign
Custody Manager agrees to exercise reasonable care, prudence and diligence such
as a person having responsibility for the safekeeping of assets of management
investment companies registered under the 1940 Act would exercise.
3.2.7 REPRESENTATIONS WITH RESPECT TO RULE 17F-5. The Foreign
Custody Manager represents to the Fund that it is a U.S. Bank as defined in
section (a)(7) of Rule 17f-5. The Fund represents to the Custodian that the
Board has determined that it is reasonable for the Board to rely on the
Custodian to perform the responsibilities delegated pursuant to this Agreement
to the Custodian as the Foreign Custody Manager of the Portfolios.
3.2.8 EFFECTIVE DATE AND TERMINATION OF THE CUSTODIAN AS
FOREIGN CUSTODY MANAGER. The Board's delegation to the Custodian as Foreign
Custody Manager of the Portfolios shall be effective as of the date hereof and
shall remain in effect until terminated at any time, without penalty, by written
notice from the terminating party to the non-terminating party. Termination will
become effective thirty (30) days after receipt by the non-terminating party of
such notice. The provisions of Section 3.2.2 hereof shall govern the delegation
to and termination of the Custodian as Foreign Custody Manager of the Portfolios
with respect to designated countries.
SECTION 3.3 ELIGIBLE SECURITIES DEPOSITORIES.
3.3.1 ANALYSIS AND MONITORING. The Custodian shall (a) provide
the Fund (or its duly-authorized investment manager or investment advisor) with
an analysis of the custody risks associated with maintaining assets with the
Eligible Securities Depositories set forth on Schedule B hereto in accordance
with section (a)(1)(i)(A) of Rule 17f-7, and (b) monitor such risks on a
continuing basis, and promptly notify the Fund (or its duly-authorized
investment manager or investment advisor) of any material change in such risks,
in accordance with section (a)(1)(i)(B) of Rule 17f-7.
3.3.2 STANDARD OF CARE. The Custodian agrees to exercise
reasonable care, prudence and diligence in performing the duties set forth in
Section 3.3.1.
SECTION 4. DUTIES OF THE CUSTODIAN WITH RESPECT TO PROPERTY OF THE
PORTFOLIOS HELD OUTSIDE THE UNITED STATES
-------------------------------------------------------------
SECTION 4.1 DEFINITIONS. As used throughout this Agreement, the
capitalized terms set forth below shall have the
indicated meanings:
-----------
"Foreign Securities System" means an Eligible Securities Depository listed on
Schedule B hereto.
"Foreign Sub-Custodian" means a foreign banking institution serving as an
Eligible Foreign Custodian.
SECTION 4.2. HOLDING SECURITIES. The Custodian shall identify on its
books as belonging to the Portfolios the foreign securities held by each Foreign
Sub-Custodian or Foreign Securities System. The Custodian may hold foreign
securities for all of its customers, including the Portfolios, with any Foreign
Sub-Custodian in an account that is identified as belonging to the Custodian for
the benefit of its customers, provided however, that (i) the records of the
Custodian with respect to foreign securities of the Portfolios which are
maintained in such account shall identify those securities as belonging to the
Portfolios and (ii), to the extent permitted and customary in the market in
which the account is maintained, the Custodian shall require that securities so
held by the Foreign Sub-Custodian be held separately from any assets of such
Foreign Sub-Custodian or of other customers of such Foreign Sub-Custodian.
SECTION 4.3. FOREIGN SECURITIES SYSTEMS. Foreign securities shall be
maintained in a Foreign Securities System in a designated country through
arrangements implemented by the Custodian or a Foreign Sub-Custodian, as
applicable, in such country.
SECTION 4.4. TRANSACTIONS IN FOREIGN CUSTODY ACCOUNT.
4.4.1. DELIVERY OF FOREIGN SECURITIES. The Custodian or a
Foreign Sub-Custodian shall release and deliver foreign securities of the
Portfolios held by the Custodian or such Foreign Sub-Custodian, or in a Foreign
Securities System account, only upon receipt of Proper Instructions, which may
be continuing instructions when deemed appropriate by the parties, and only in
the following cases:
(i) upon the sale of such foreign securities for the Portfolio in
accordance with commercially reasonable market practice in the
country where such foreign securities are held or traded,
including, without limitation: (A) delivery against
expectation of receiving later payment; or (B) in the case of
a sale effected through a Foreign Securities System, in
accordance with the rules governing the operation of the
Foreign Securities System;
(ii) in connection with any repurchase agreement related to foreign
securities;
(iii) to the depository agent in connection with tender or other
similar offers for foreign securities of the Portfolios;
(iv) to the issuer thereof or its agent when such foreign
securities are called, redeemed, retired or otherwise become
payable;
(v) to the issuer thereof, or its agent, for transfer into the
name of the Custodian (or the name of the respective Foreign
Sub-Custodian or of any nominee of the Custodian or such
Foreign Sub-Custodian) or for exchange for a different number
of bonds, certificates or other evidence representing the same
aggregate face amount or number of units;
(vi) to brokers, clearing banks or other clearing agents for
examination or trade execution in accordance with market
custom; provided that in any such case the Foreign
Sub-Custodian shall have no responsibility or liability for
any loss arising from the delivery of such securities prior to
receiving payment for such securities except as may arise from
the Foreign Sub-Custodian's own negligence or willful
misconduct;
(vii) for exchange or conversion pursuant to any plan of merger,
consolidation, recapitalization, reorganization or
readjustment of the securities of the issuer of such
securities, or pursuant to provisions for conversion contained
in such securities, or pursuant to any deposit agreement;
(viii) in the case of warrants, rights or similar foreign securities,
the surrender thereof in the exercise of such warrants, rights
or similar securities or the surrender of interim receipts or
temporary securities for definitive securities;
(ix) for delivery as security in connection with any borrowing by
the Portfolios requiring a pledge of assets by the Portfolios;
(x) for delivery as initial or variation margin in connection with
futures or options on futures contracts entered into by the
Fund on behalf of the Portfolio;
(xi) in connection with the lending of foreign securities; and
(xii) for any other purpose, but only upon receipt of Proper
Instructions specifying the foreign securities to be delivered
and naming the person or persons to whom delivery of such
securities shall be made.
4.4.2. PAYMENT OF PORTFOLIO MONIES. Upon receipt of Proper
Instructions, which may be continuing instructions when deemed appropriate by
the parties, the Custodian shall pay out, or direct the respective Foreign
Sub-Custodian or the respective Foreign Securities System to pay out, monies of
a Portfolio in the following cases only:
(i) upon the purchase of foreign securities for the Portfolio,
unless otherwise directed by Proper Instructions, by (A)
delivering money to the seller thereof or to a dealer therefor
(or an agent for such seller or dealer) against expectation of
receiving later delivery of such foreign securities; or (B) in
the case of a purchase effected through a Foreign Securities
System, in accordance with the rules governing the operation
of such Foreign Securities System;
(ii) in connection with the conversion, exchange or surrender of
foreign securities of the Portfolio;
(iii) for the payment of any expense or liability of the Portfolio,
including but not limited to the following payments: interest,
taxes, investment advisory fees, transfer agency fees, fees
under this Agreement, legal fees, accounting fees, and other
operating expenses;
(iv) for the purchase or sale of foreign exchange or foreign
exchange contracts for the Portfolio, including transactions
executed with or through the Custodian or its Foreign
Sub-Custodians;
(v) for delivery as initial or variation margin in connection with
futures or options on futures contracts entered into by the
Fund on behalf of the Portfolio;
(vi) for payment of part or all of the dividends received in
respect of securities sold short;
(vii) in connection with the borrowing or lending of foreign securities; and
(viii) For delivery to Repo Custodian, which delivery may be made
without contemporaneous receipt by the Custodian of
assets in exchange therefor, and upon which delivery to such
Repo Custodian in accordance with Proper Instructions
from the Fund on behalf of a Portfolio, the Custodian shall
have no further responsibility or obligation to the Fund
as a custodian for the Fund on behalf of a Portfolio with
respect to the securities so delivered (each such delivery, a
"Free Trade"), provided that, in preparing reports of monies
received or paid out of the Portfolio or of assets comprising
the Portfolio, the Custodian shall be entitled to rely upon
information received from time to time from the Repo Custodian
and shall not be responsible for the accuracy or completeness
of such information included in the Custodian's reports until
such assets are received by the Custodian; and
(ix) for any other purpose, but only upon receipt of Proper
Instructions specifying the amount of such payment and naming
the person or persons to whom such payment is to be made.
4.4.3. MARKET CONDITIONS. Notwithstanding any provision of
this Agreement to the contrary, settlement and payment for Foreign Assets
received for the account of the Portfolios and delivery of Foreign Assets
maintained for the account of the Portfolios may be effected in accordance with
the customary established securities trading or processing practices and
procedures in the country or market in which the transaction occurs, including,
without limitation, delivering Foreign Assets to the purchaser thereof or to a
dealer therefor (or an agent for such purchaser or dealer) with the expectation
of receiving later payment for such Foreign Assets from such purchaser or
dealer.
The Custodian shall provide to the Board the information with respect to custody
and settlement practices in countries in which the Custodian employs a Foreign
Sub-Custodian described on Schedule C hereto at the time or times set forth on
such Schedule. The Custodian may revise Schedule C from time to time, provided
that no such revision shall result in the Board being provided with
substantively less information than had been previously provided hereunder.
SECTION 4.5. REGISTRATION OF FOREIGN SECURITIES. The foreign securities
maintained in the custody of a Foreign Sub-Custodian (other than bearer
securities) shall be registered in the name of the applicable Portfolio or in
the name of the Custodian or in the name of any Foreign Sub-Custodian or in the
name of any nominee of the foregoing, and the Fund on behalf of such Portfolio
agrees to hold any such nominee harmless from any liability as a holder of
record of such foreign securities. The Custodian or a Foreign Sub-Custodian
shall not be obligated to accept securities on behalf of a Portfolio under the
terms of this Agreement unless the form of such securities and the manner in
which they are delivered are in accordance with reasonable market practice.
SECTION 4.6 BANK ACCOUNTS. The Custodian shall identify on its books as
belonging to the Fund cash (including cash denominated in foreign currencies)
deposited with the Custodian. Where the Custodian is unable to maintain, or
market practice does not facilitate the maintenance of, cash on the books of the
Custodian, a bank account or bank accounts shall be opened and maintained
outside the United States on behalf of a Portfolio with a Foreign Sub-Custodian.
All accounts referred to in this Section shall be subject only to draft or order
by the Custodian (or, if applicable, such Foreign Sub-Custodian) acting pursuant
to the terms of this Agreement to hold cash received by or from or for the
account of the Portfolio. Cash maintained on the books of the Custodian
(including its branches, subsidiaries and affiliates), regardless of currency
denomination, is maintained in bank accounts established under, and subject to
the laws of, The Commonwealth of Massachusetts.
SECTION 4.7. COLLECTION OF INCOME. The Custodian shall use reasonable
commercial efforts to collect all income and other payments with respect to the
Foreign Assets held hereunder to which the Portfolios shall be entitled and
shall credit such income, as collected, to the applicable Portfolio. In the
event that extraordinary measures are required to collect such income, the Fund
and the Custodian shall consult as to such measures and as to the compensation
and expenses of the Custodian relating to such measures.
SECTION 4.8 SHAREHOLDER RIGHTS. With respect to the foreign securities
held pursuant to this Section 4, the Custodian will use reasonable commercial
efforts to facilitate the exercise of voting and other shareholder rights,
subject always to the laws, regulations and practical constraints that may exist
in the country where such securities are issued. The Fund acknowledges that
local conditions, including lack of regulation, onerous procedural obligations,
lack of notice and other factors may have the effect of severely limiting the
ability of the Fund to exercise shareholder rights.
SECTION 4.9. COMMUNICATIONS RELATING TO FOREIGN SECURITIES. The
Custodian shall transmit promptly to the Fund written information with respect
to materials received by the Custodian via the Foreign Sub-Custodians from
issuers of the foreign securities being held for the account of the Portfolios
(including, without limitation, pendency of calls and maturities of foreign
securities and expirations of rights in connection therewith). With respect to
tender or exchange offers, the Custodian shall transmit promptly to the Fund
written information with respect to materials so received by the Custodian from
issuers of the foreign securities whose tender or exchange is sought or from the
party (or its agents) making the tender or exchange offer. The Custodian shall
not be liable for any untimely exercise of any tender, exchange or other right
or power in connection with foreign securities or other property of the
Portfolios at any time held by it unless (i) the Custodian or the respective
Foreign Sub-Custodian is in actual possession of such foreign securities or
property and (ii) the Custodian receives Proper Instructions with regard to the
exercise of any such right or power, and both (i) and (ii) occur at least three
business days prior to the date on which the Custodian is to take action to
exercise such right or power.
SECTION 4.10. LIABILITY OF FOREIGN SUB-CUSTODIANS. Each agreement
pursuant to which the Custodian employs a Foreign Sub-Custodian shall, to the
extent possible, require the Foreign Sub-Custodian to exercise reasonable care
in the performance of its duties, and to indemnify, and hold harmless, the
Custodian from and against any loss, damage, cost, expense, liability or claim
arising out of or in connection with the Foreign Sub-Custodian's performance of
such obligations. At the Fund's election, the Portfolios shall be entitled to be
subrogated to the rights of the Custodian with respect to any claims against a
Foreign Sub-Custodian as a consequence of any such loss, damage, cost, expense,
liability or claim if and to the extent that the Portfolios have not been made
whole for any such loss, damage, cost, expense, liability or claim.
SECTION 4.11 TAX LAW. The Custodian shall have no responsibility or
liability for any obligations now or hereafter imposed on the Fund, the
Portfolios or the Custodian as custodian of the Portfolios by the tax law of the
United States or of any state or political subdivision thereof. It shall be the
responsibility of the Fund to notify the Custodian of the obligations imposed on
the Fund with respect to the Portfolios or the Custodian as custodian of the
Portfolios by the tax law of countries other than those mentioned in the above
sentence, including responsibility for withholding and other taxes, assessments
or other governmental charges, certifications and governmental reporting. The
sole responsibility of the Custodian with regard to such tax law shall be to use
reasonable efforts to assist the Fund with respect to any claim for exemption or
refund under the tax law of countries for which the Fund has provided such
information.
SECTION 4.12. LIABILITY OF CUSTODIAN. The Custodian shall be liable for
the acts or omissions of a Foreign Sub-Custodian to the same extent as set forth
with respect to sub-custodians generally in the Agreement and, regardless of
whether assets are maintained in the custody of a Foreign Sub-Custodian or a
Foreign Securities System, the Custodian shall not be liable for any loss,
damage, cost, expense, liability or claim resulting from nationalization,
expropriation, currency restrictions, or acts of war or terrorism, or any other
loss where the Sub-Custodian has otherwise acted with reasonable care.
SECTION 5. LOAN SERVICING PROVISIONS
SECTION 5.1 GENERAL. The following provisions shall apply with respect
to investments, property or assets in the nature of loans, or interests or
participations in loans, including without limitation interests in syndicated
bank loans and bank loan participations, whether in the U.S. or outside the U.S.
(collectively, "Loans") entered into by the Fund on behalf of one or more of its
Portfolios (referred to in this Section 5 as the "Fund").
SECTION 5.2 SAFEKEEPING. Instruments, certificates, agreements and/or
other documents which the Custodian may receive with respect to Loans, if any
(collectively "Financing Documents"), from time to time, shall be held by the
Custodian at its offices in Boston, Massachusetts.
SECTION 5.3 DUTIES OF THE CUSTODIAN. The Custodian shall accept such
Financing Documents, if any, with respect to Loans as may be delivered to it
from time to time by the Fund. The Custodian shall be under no obligation to
examine the contents or determine the sufficiency of any such Financing
Documents or to provide any certification with respect thereto, whether received
by the Custodian as original documents, photocopies, by facsimile or otherwise.
Without limiting the foregoing, the Custodian is under no duty to examine any
such Financing Documents to determine whether necessary steps have been taken or
requirements met with respect to the assignment or transfer of the related Loan
or applicable interest or participation in such Loan. The Custodian shall be
entitled to assume the genuineness, sufficiency and completeness of any
Financing Documents received, and the genuineness and due authority of any
signature appearing on such documents. Notwithstanding any term of this
Agreement to the contrary, with respect to any Loans, (i) the Custodian shall be
under no obligation to determine, and shall have no liability for, the
sufficiency of, or to require delivery of, any instrument, document or agreement
constituting, evidencing or representing such Loan, other than to receive such
Financing Documents, if any, as may be delivered or caused to be delivered to it
by the Fund (or its investment manager acting on its behalf), (ii) without
limiting the generality of the foregoing, delivery of any such Loan (including
without limitation, for purposes of Section 2.6 above) may be made to the
Custodian by, and may be represented solely by, delivery to the Custodian of a
facsimile or photocopy of an assignment agreement (an "Assignment Agreement") or
a confirmation or certification from the Fund (or the investment manager) to the
effect that it has acquired such Loan and/or has received or will receive, and
will deliver to the Custodian, appropriate Financing Documents constituting,
evidencing or representing such Loan (such confirmation or certification,
together with any Assignment Agreement, collectively, an "Assignment Agreement
or Confirmation"), in any case without delivery of any promissory note,
participation certificate or similar instrument (collectively, an "Instrument"),
(iii) if an original Instrument shall be or shall become available with respect
to any such Loan, it shall be the sole responsibility of the Fund (or the
investment manager acting on its behalf) to make or cause delivery thereof to
the Custodian, and the Custodian shall be under no obligation at any time or
times to determine whether any such original Instrument has been issued or made
available with respect to such Loan, and shall not be under any obligation to
compel compliance by the Fund to make or cause delivery of such Instrument to
the Custodian, and (iv) any reference to Financing Documents appearing in this
Section 5 shall be deemed to include, without limitation, any such Instrument
and/or Assignment Agreement or Confirmation.
If payments with respect to a Loan ("Loan Payment") are not received by the
Custodian on the date on which they are due, as reflected in the Payment
Schedule (as such term is defined in Section 5.4 below) of the Loan ("Payment
Date"), or in the case of interest payments, not received either on a scheduled
interest payable date, as reported to the Custodian by the Fund (or the
investment manager acting on its behalf) for the Loan (the "Interest Payable
Date"), or in the amount of their accrued interest payable, the Custodian shall
promptly, but in no event later than one business day after the Payment Date or
the Interest Payable Date, give telephonic notice to the party obligated under
the Financing Documents to make such Loan Payment (the "Obligor") of its failure
to make timely payment, and (2) if such payment is not received within three
business days of its due date, shall notify the Fund (or the investment manager
on its behalf) of such Obligor's failure to make the Loan Payment. In the event
the Custodian should receive a past due interest or other Loan Payment, the
Custodian shall notify the Fund of such receipt. The Custodian shall have no
responsibility with respect to the collection of Loan Payments which are past
due, other than the duty to notify the Obligor and the Fund (or the investment
manager acting on its behalf) as provided herein.
The Custodian shall have no responsibilities or duties whatsoever under this
Agreement, with respect to Loans or the Financing Documents, except for such
responsibilities as are expressly set forth herein. Without limiting the
generality of the foregoing, the Custodian shall have no obligation to preserve
any rights against prior parties or to exercise any right or perform any
obligation in connection with the Loans or any Financing Documents (including,
without limitation, no obligation to take any action in respect of or upon
receipt of any consent solicitation, notice of default or similar notice
received from any bank agent or Obligor, except that the Custodian shall
undertake reasonable efforts to forward any such notice to the Fund or the
investment manager acting on its behalf). In case any question arises as to its
duties hereunder, the Custodian may request instructions from the Fund and shall
be entitled at all times to refrain from taking any action unless it has
received Proper Instructions from the Fund or the investment manager and the
Custodian shall in all events have no liability, risk or cost for any action
taken, with respect to a Loan, pursuant to and in compliance with the Proper
Instructions of such parties.
The Custodian shall be only responsible and accountable for Loan Payments
actually received by it and identified as for the account of the Fund; any and
all credits and payments credited to the Fund, with respect to Loans, shall be
conditional upon clearance and actual receipt by the Custodian of final payment
thereon.
The Custodian shall promptly, upon the Fund's request, release to the Fund's
investment manager or to any party as the Fund or the Fund's investment manager
may specify, any Financing Documents being held on behalf of the Fund. Without
limiting the foregoing, the Custodian shall not be deemed to have or be charged
with knowledge of the sale of any Loan, unless and except to the extent it shall
have received written notice and instruction from the Fund (or the investment
manager acting on its behalf) with respect thereto, and except to the extent it
shall have received the sale proceeds thereof.
In no event shall the Custodian be under any obligation or liability to make any
advance of its own funds with respect to any Loan.
SECTION 5.4 RESPONSIBILITY OF THE FUND. With respect to each Loan held
by the Custodian hereunder in accordance with the provisions hereof, the Fund
shall (a) cause the Financing Documents evidencing such Loan to be delivered to
the Custodian; (b) include with such Financing Documents an amortization
schedule of payments (the "Payment Schedule") identifying the amount and due
dates of scheduled principal payments, the Interest Payable Date(s) and related
payment amount information, and such other information with respect to the
related Loan and Financing Documents as the Custodian reasonably may require in
order to perform its services hereunder (collectively, "Loan Information"), in
such form and format as the Custodian reasonably may require; (c) take, or cause
the investment manager to take, all actions necessary to acquire good title to
such Loan (or the participation in such Loan, as the case may be), as and to the
extent intended to be acquired; and (d) cause the Custodian to be named as its
nominee for payment purposes under the Financing Documents or otherwise provide
for the direct payment of the Payments to the Custodian. The Custodian shall be
entitled to rely upon the Loan Information provided to it by the Fund (or the
investment manager acting on its behalf) without any obligation on the part of
the Custodian independently to verify, investigate, recalculate, update or
otherwise confirm the accuracy or completeness thereof; and the Custodian shall
have no liability for any delay or failure on the part of the Fund in providing
necessary Loan Information to the Custodian, or for any inaccuracy therein or
incompleteness thereof. With respect to each such Loan, the Custodian shall be
entitled to rely on any information and notices it may receive from time to time
from the related bank agent, Obligor or similar party with respect to the
related Loan, and shall be entitled to update its records on the basis of such
information or notices received, without any obligation on its part
independently to verify, investigate or recalculate such information.
SECTION 5.5 INSTRUCTIONS; AUTHORITY TO ACT. The certificate of the
Secretary or an Assistant Secretary of the Fund, identifying certain individuals
to be officers of the Fund or employees of the Fund's investment manager
authorized to sign any such instructions, may be received and accepted as
conclusive evidence of the incumbency and authority of such to act and may be
considered by the Custodian to be in full force and effect until it receives
written notice to the contrary from the Secretary or Assistant Secretary of the
Fund's Board. Notwithstanding any other provision of this Agreement, the
Custodian shall have no responsibility to ensure that any investment by the Fund
with respect to Loans has been authorized.
SECTION 5.6 ATTACHMENT. In case any portion of the Loans or the
Financing Documents shall be attached or levied upon pursuant to an order of
court, or the delivery or disbursement thereof shall be stayed or enjoined by an
order of court, or any other order, judgment or decree shall be made or entered
by any court affecting the property of the Fund or any act of the Custodian
relating thereto, the Custodian is hereby expressly authorized in its sole
discretion to obey and comply with all orders, judgments or decrees so entered
or issued, without the necessity of inquire whether such court had jurisdiction,
and, in case the Custodian obeys or complies with any such order, judgment or
decree, it shall not be liable to anyone by reason of such compliance.
SECTION 6. 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 thereof issued or sold from time to time by
the Fund. The Custodian will provide timely notification to the Fund on behalf
of each such Portfolio and the Transfer Agent of any receipt by it of payments
for Shares of such Portfolio.
From such funds as may be available for the purpose, the Custodian shall, upon
receipt of instructions from the Transfer Agent, make funds available for
payment to holders of Shares who have delivered to the Transfer Agent a request
for redemption or repurchase of their Shares. In connection with the redemption
or repurchase of Shares, the Custodian is authorized upon receipt of
instructions from the Transfer Agent to wire funds to or through a commercial
bank designated by the redeeming shareholders. In connection with the redemption
or repurchase of Shares, the Custodian shall honor checks drawn on the Custodian
by a holder of Shares, which checks have been furnished by the Fund to the
holder of Shares, when presented to the Custodian in accordance with such
procedures and controls as are mutually agreed upon from time to time between
the Fund and the Custodian.
SECTION 7. PROPER INSTRUCTIONS
Proper Instructions, which may also be standing instructions, as used throughout
this Agreement, shall mean instructions received by the Custodian from any
person duly authorized by the Fund or its investment adviser. Such instructions
may be in writing signed by the authorized person or persons or may be in a
communication utilizing access codes or a tested communication effected between
electro-mechanical or electronic devices, or may be by such other means and
utilizing such intermediary systems and utilities as may be agreed to from time
to time by the Custodian and the person or entity giving such instructions,
provided that the Fund has followed any security procedures agreed to from time
to time by the Fund and the Custodian, including, but not limited to, the
security procedures selected by the Fund in the Funds Transfer Addendum to this
Agreement. 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. For purposes of this
Section, Proper Instructions shall include instructions received by the
Custodian pursuant to any multi-party agreement which requires a segregated
asset account in accordance with Section 2.9 of this Agreement. The Fund or the
Fund's investment manager shall cause its duly authorized officer to certify to
the Custodian in writing the names and specimen signatures of persons authorized
to give Proper Instructions. The Custodian shall be entitled to rely upon the
authority of such persons until it receives notice from the Fund to the
contrary.
SECTION 8. 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 its
duties under this Agreement, provided that all such payments
shall be accounted for to the Fund on behalf of the Portfolio;
2) surrender securities in temporary form for securities in
definitive form;
3) endorse for collection, in the name of the Portfolio, checks,
drafts and other negotiable instruments; and
4) in general, attend to all non-discretionary details in
connection with the sale, exchange, substitution, purchase,
transfer and other dealings with the securities and property
of the Portfolio except as otherwise directed by the Board.
SECTION 9. EVIDENCE OF AUTHORITY
The Custodian shall be protected in acting upon any instructions, notice,
request, consent, certificate or other instrument or paper believed by it to be
genuine and to have been properly executed by or on behalf of the Fund. The
Custodian may receive and accept a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Fund ("Certified Resolution") 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 as
described in such resolution, and such resolution may be considered as in full
force and effect until receipt by the Custodian of written notice to the
contrary.
SECTION 10. RECORDS
(a) 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 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 and employees and
agents of the SEC. 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 and shall, when requested to do so by the Fund and for such
compensation as shall be agreed upon between the Fund and the Custodian, include
certificate numbers in such tabulations.
(b) For a period of seven (7) years following termination of this
Agreement or, if earlier, until the delivery to the Fund or its agent (which
includes a Successor Custodian) of Portfolio Information (as defined below) from
the preceding five (5) years in a reasonably searchable paper or electronic
format to be agreed upon by the parties acting in good faith, the Custodian
shall maintain and, upon request of the Fund and subject to the payment of
compensation to the Custodian as provided below, make available to the Fund, its
representatives or agents, such Portfolio Information as may reasonably be
required in order for the Fund or its agents (but not the Custodian) to
determine whether the Fund may be entitled to participate in certain class
action securities litigation or other legal proceedings. As used in this
subsection (b), the term "Portfolio Information" shall mean a Portfolio's
portfolio holdings information that is maintained by the Custodian pursuant to
Section 10(a). The Custodian shall be entitled to reasonable compensation for
any services provided and any additional expenses incurred under this Section
10(b).
SECTION 11. OPINION OF 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 its
activities hereunder in connection with the preparation of the Fund's Form N-1A,
and Form N-SAR or other annual reports to the SEC and with respect to any other
requirements thereof.
SECTION 12. REPORTS TO FUND BY INDEPENDENT PUBLIC ACCOUNTANTS
The Custodian shall provide the Fund, on behalf of each of the Portfolios at
such times as the Fund may reasonably require, with reports by independent
public accountants on the accounting system, internal accounting control and
procedures for safeguarding securities, futures contracts and options on futures
contracts, including securities deposited and/or maintained in a U.S. Securities
System or a Foreign Securities System (either, a "Securities System"), relating
to the services provided by the Custodian under this Agreement; such reports,
shall be of sufficient scope and in sufficient detail, as may reasonably be
required by the Fund to provide reasonable assurance that any material
inadequacies would be disclosed by such examination, and, if there are no such
inadequacies, the reports shall so state.
SECTION 13. COMPENSATION OF CUSTODIAN
The Custodian shall be entitled to reasonable compensation for its services and
expenses as Custodian, as agreed upon in writing from time to time between the
Fund on behalf of each applicable Portfolio and the Custodian.
SECTION 14. RESPONSIBILITY OF CUSTODIAN
So long as and to the extent that it is in the exercise of reasonable care, the
Custodian shall not be responsible for the title, validity or genuineness of any
property or evidence of title thereto received by it or delivered by it pursuant
to this Agreement and shall be held harmless in acting upon any notice, request,
consent, certificate or other instrument reasonably believed by it to be genuine
and to be signed by the proper party or parties, including any futures
commission merchant acting pursuant to the terms of a three-party futures or
options agreement. The Custodian shall be held to the exercise of reasonable
care in carrying out the provisions of this Agreement, but shall be indemnified
by and shall be without liability to the Fund for any action taken or omitted by
it in good faith without negligence, including, without limitation, acting in
accordance with any Proper Instruction. It shall be entitled to rely on and may
act upon advice of counsel (who may be counsel for the Fund) on all matters, and
shall be without liability for any action reasonably taken or omitted pursuant
to such advice. Except to the extent arising from the Custodian's own negligence
or willful misconduct or the negligence or willful misconduct of a
Sub-Custodian, however, the Custodian shall be without liability to the Fund and
the Portfolios for any loss, liability, claim or expense resulting from or
caused by anything which is part of Country Risk (as defined in Section 3
hereof), including without limitation nationalization, expropriation, currency
restrictions, or acts of war, revolution, riots or terrorism.
Except as may arise from the Custodian's own negligence or willful misconduct or
the negligence or willful misconduct of a sub-custodian or agent, the Custodian
shall be without liability to 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, the
interruption, suspension or restriction of trading on or the closure of any
securities market, power or other mechanical or technological failures or
interruptions, computer viruses or communications disruptions, work stoppages,
natural disasters, or other similar events or acts; (ii) errors by the Fund or
its duly-authorized investment manager or investment advisor in their
instructions to the Custodian provided such instructions have been in accordance
with this Agreement; (iii) the insolvency of or acts or omissions by a
Securities System; (iv) any delay or failure of any broker, agent or
intermediary, central bank or other commercially prevalent payment or clearing
system to deliver to the Custodian's sub-custodian or agent securities purchased
or in the remittance or payment made in connection with securities sold; (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; and
(vii) any provision of any present or future law or regulation or order of the
United States of America, or any state thereof, or any other country, or
political subdivision thereof or of any court of competent jurisdiction.
The Custodian shall be liable for the acts or omissions of a Foreign
Sub-Custodian (as defined in Section 4 hereof) to the same extent as set forth
with respect to sub-custodians generally in this Agreement.
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
it.
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, foreign exchange contracts and assumed settlement) or in
the event that the Custodian or its nominee shall incur or be assessed any
taxes, charges, expenses, assessments, claims or liabilities in connection with
the performance of this Agreement, 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 should the Fund fail to repay the Custodian promptly,
the Custodian shall be entitled to utilize available cash and to dispose of such
Portfolio's assets to the extent necessary to obtain reimbursement.
In no event shall the Custodian be liable for indirect, special or consequential
damages.
SECTION 15. EFFECTIVE PERIOD, TERMINATION AND AMENDMENT
This Agreement shall become effective as of its execution and shall continue for
a term of one (1) year, subject to up to two (2) automatic one (1) year renewals
(collectively, the "Initial Term"), unless either party gives prior written
notice to the other of its intent not to renew; provided, however, that either
party may terminate this Agreement without penalty upon sixty (60) days prior
written notice for cause. This Agreement may be amended at any time by mutual
agreement of the parties hereto and after the Initial Term, this Agreement shall
continue in full force and effect until terminated by either party by delivering
written notice the other party in accordance with Section 22, such termination
to take effect not sooner than sixty (60) days after the date of such delivery
or mailing; provided, 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 Fund's Declaration of Trust, Articles of Incorporation and
By-laws, Partnership or Limited Liability Company Agreement or other governing
documents, as applicable, ("Governing Documents") and further provided, that the
Fund on behalf of one or more of the Portfolios may at any time by action of its
Board (i) substitute another bank or trust company for the Custodian by giving
notice as described above to the Custodian, or (ii) immediately terminate this
Agreement in the event of the appointment of a conservator or receiver for the
Custodian by the Comptroller of the Currency or upon the happening of a like
event at the direction of an appropriate regulatory agency or court of competent
jurisdiction.
Upon termination of the 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 shall likewise reimburse the Custodian for its
reasonable costs, expenses and disbursements.
SECTION 16. SUCCESSOR CUSTODIAN
If a successor custodian for one or more Portfolios shall be appointed by the
Board, the Custodian shall, upon termination, deliver to such successor
custodian at the office of the Custodian, duly endorsed and in the form for
transfer, all securities of each applicable Portfolio then held by it hereunder
and shall transfer to an account of the successor custodian all of the
securities of each such Portfolio held in a Securities System or at the
Underlying Transfer Agent.
If no such successor custodian shall be appointed, the Custodian shall, in like
manner, upon receipt of a Certified Resolution, deliver at the office of the
Custodian and transfer such securities, funds and other properties in accordance
with such resolution.
In the event that no 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 $25,000,000, all
securities, funds and other properties held by the Custodian on behalf of each
applicable Portfolio and all instruments held by the Custodian relative thereto
and all other property held by it under this Agreement on behalf of each
applicable Portfolio, and to transfer to an account of such successor custodian
all of the securities of each such Portfolio held in any Securities System or at
the Underlying Transfer Agent. Thereafter, such bank or trust company shall be
the successor of the Custodian under this Agreement.
In the event that securities, funds and other properties remain in the
possession of the Custodian after the date of termination hereof owing to
failure of the Fund to procure the Certified Resolution 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.
SECTION 17. INTERPRETIVE AND ADDITIONAL PROVISIONS
In connection with the operation of this Agreement, the Custodian and the Fund
on behalf of each of the Portfolios, may from time to time agree on such
provisions interpretive of or in addition to the provisions of this Agreement as
may in their joint opinion be consistent with the general tenor of this
Agreement. Any such interpretive or additional provisions shall be in a writing
signed by both parties and shall be annexed hereto, provided that no such
interpretive or additional provisions shall contravene any applicable federal or
state regulations or any provision of the Fund's Governing Documents. No
interpretive or additional provisions made as provided in the preceding sentence
shall be deemed to be an amendment of this Agreement.
SECTION 18. ADDITIONAL FUNDS
In the event that any registered investment company in addition to those listed
on Appendix A hereto desires to have the Custodian render services as custodian
under the terms hereof, it shall so notify the Custodian in writing, and if the
Custodian agrees in writing to provide such services, such registered investment
company shall become a Fund hereunder and be bound by all terms and conditions
and provisions of this Agreement.
SECTION 19. ADDITIONAL PORTFOLIOS
In the event that any Fund establishes one or more series of Shares in addition
to those listed on the Appendix attached to this Agreement, with respect to
which it desires to have the Custodian render services as custodian under the
terms hereof, it shall so notify the Custodian in writing and transmit to the
Custodian a revised Appendix A, and if the Custodian agrees in writing to
provide such services, such series of Shares shall become a Portfolio hereunder.
SECTION 20. MASSACHUSETTS LAW TO APPLY
This Agreement shall be construed and the provisions thereof interpreted under
and in accordance with laws of The Commonwealth of Massachusetts.
SECTION 21. PRIOR AGREEMENTS
This Agreement supersedes and terminates, as of the date hereof, all prior
Agreements between the Fund on behalf of each of the Portfolios and the
Custodian relating to the custody of the Fund's assets.
SECTION 22. NOTICES.
-------
Any notice, instruction or other instrument required to be given hereunder may
be delivered in person to the offices of the parties as set forth herein during
normal business hours or delivered prepaid registered mail or by telex, cable or
telecopy to the parties at the following addresses or such other addresses as
may be notified by any party from time to time.
To the Fund: Columbia Management Advisors, Inc.
000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
To the Custodian: STATE STREET BANK AND TRUST COMPANY
Two Avenue de Lafayette, LCC/4S
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. XxXxxxxx, Vice President
Telephone: 000-000-0000
Facsimile: 000-000-0000
Such notice, instruction or other instrument shall be deemed to have been served
in the case of a registered letter at the expiration of five business days after
posting, in the case of cable twenty-four hours after dispatch and, in the case
of telex, immediately on dispatch and if delivered outside normal business hours
it shall be deemed to have been received at the next time after delivery when
normal business hours commence and in the case of cable, telex or telecopy on
the business day after the receipt thereof. Evidence that the notice was
properly addressed, stamped and put into the post shall be conclusive evidence
of posting.
SECTION 23. REPRODUCTION OF DOCUMENTS
This Agreement and all schedules, addenda, exhibits, attachments and amendments
hereto may be reproduced by any photographic, photostatic, microfilm,
micro-card, miniature photographic or other similar process. The parties hereto
all/each agree that any such reproduction shall be admissible in evidence as the
original itself in any judicial or administrative proceeding, whether or not the
original is in existence and whether or not such reproduction was made by a
party in the regular course of business, and that any enlargement, facsimile or
further reproduction of such reproduction shall likewise be admissible in
evidence.
SECTION 24. THE PARTIES
All references herein to the "Fund" are to each of the management investment
companies listed on Appendix A hereto, and each management investment company
made subject to this Agreement in accordance with Section 18 above,
individually, as if this Agreement were between such individual Fund and the
Custodian. In the case of a series corporation, trust or other entity, all
references herein to the "Portfolio" are to the individual series or portfolio
of such corporation, trust or other entity, or to such corporation, trust or
other entity on behalf of the individual series or portfolio, as appropriate,
made subject to this Agreement in accordance with Section 19 above. Any
reference in this Agreement to "the parties" shall mean the Custodian and such
other individual Fund as to which the matter pertains.
On behalf of each Fund that is organized as a Massachusetts business trust,
notice is hereby given that a copy of the Agreement and Declaration of Trust of
the Fund is on file with the Secretary of State of The Commonwealth of
Massachusetts, and that this Agreement is executed by an officer of the Fund, as
an officer and not individually, on behalf of the trustees of the Fund, as
trustees and not individually, and that the obligations of this Agreement with
respect to the Fund shall be binding upon the assets and properties of the Fund
only and shall not be binding upon any of the Trustees, officers, employees,
agents or shareholders of the Fund or the Trust individually.
SECTION 25. REPRESENTATIONS AND WARRANTIES OF EACH FUND
Each Fund hereby represents and warrants that: (a) it is duly incorporated,
formed or organized and is validly existing in good standing in its jurisdiction
of incorporation, formation or organization; (b) it has the requisite power and
authority under applicable law and its Governing Documents to enter into and
perform this Agreement; (c) all requisite proceedings have been taken to
authorize it to enter into and perform this Agreement; (d) this Agreement
constitutes its legal, valid, binding and enforceable agreement; (e) its
entrance into this Agreement shall not cause a material breach or be in material
conflict with any other agreement or obligation of the Fund or any law or
regulation applicable to it, and (f) it is an investment company registered
under the 1940 Act, as amended and will continue to be a registered investment
company under the 1940 Act for the term of this Agreement.
SECTION 26. REMOTE ACCESS SERVICES ADDENDUM
The Custodian and the Fund agree to be bound by the terms of the Remote Access
Services Addendum attached hereto.
SECTION 27. COUNTERPARTS
This Agreement may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, each of which, when executed
and delivered, shall constitute an original, and all such counterparts together
shall constitute one and the same instrument.
SECTION 28. CONFIDENTIALITY
The parties hereto agree that each shall treat confidentially all information
provided by each party to the other party regarding its business and operations.
All confidential information provided by a party hereto shall be used by any
other party hereto solely for the purpose of rendering services pursuant to this
Agreement and, except as may be required in carrying out this Agreement, shall
not be disclosed to any third party without the prior written consent of the
party providing the information. In addition, during the term of this Agreement,
the Custodian will maintain policies reasonably designed to prohibit the
Custodian and its employees from engaging in securities transactions based on
knowledge of the Fund's portfolio holdings.
The foregoing shall not be applicable to any information that is (i) publicly
available when provided or thereafter becomes publicly available, other than
through a breach of this Agreement, or that is independently derived by any
party hereto without the use of any information provided by the other party
hereto in connection with this Agreement, (ii) aggregated, without reference to
such Fund, in whole or in part, with other client information for the
Custodian's own marketing, reporting or other purposes, or (iii) required in any
legal or regulatory proceeding, investigation, audit, examination, subpoena,
civil investigative demand or other similar process, or by operation of law or
regulation.
SECTION 29. PROVISIONS SURVIVING TERMINATION
The provisions of Sections 4.11, 4.12, 10, 14, 15, 16, 20, 26 and 28 of this
Agreement shall survive termination of this Agreement for any reason.
SECTION 30. SHAREHOLDER COMMUNICATIONS ELECTION
SEC Rule 14b-2 of Regulation 14A under the Exchange Act 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 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, each of the parties has caused this instrument to
be executed in its name and behalf by its duly authorized representative and its
seal to be hereunder affixed as of the date first written above.
EACH OF THE ENTITIES SET FORTH ON FUND SIGNATURE ATTESTED TO BY:
THE APPENDIX A ATTACHED HERETO
By: /s/ J. Xxxxx Xxxxxxxxxxx By: /s/ Xxxx X. Xxxxxx
------------------------------ --------------------------
Name: J. XXXXX XXXXXXXXXXX Name: XXXX X. XXXXXX
------------------------------ --------------------------
Title: Treasurer - Funds Title: Analyst
STATE STREET BANK AND TRUST COMPANY SIGNATURE ATTESTED TO BY:
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxxxx Greensbauer
Name: XXXXXX X. XXXXXX Name: XXXXXXXX GREENSBAUER
------------------------------ -------------------------
Title: Executive Vice President Title: Vice President
---------------------------- --------------------------
A-4
APPENDIX A
CMG FUND TRUST
CMG Enhanced S&P 500 Index Fund
CMG Core Bond Fund
CMG High Yield Fund
CMG International Stock Fund
CMG Large Cap Growth Fund
CMG Large Cap Value Fund
CMG Mid Cap Growth Fund
CMG Mid Cap Value Fund
CMG Short Term Bond Fund
CMG Small Cap Fund
CMG Small Cap Growth Fund
CMG Small Cap Value Fund
CMG Small/Mid Cap Fund
CMG Strategic Equity Fund
CMG Ultra Short Term Bond Fund
COLONIAL CALIFORNIA INSURED MUNICIPAL FUND
COLONIAL HIGH INCOME MUNICIPAL TRUST
COLONIAL INSURED MUNICIPAL FUND
COLONIAL INTERMARKET INCOME TRUST I
COLONIAL INTERMEDIATE HIGH INCOME FUND
COLONIAL INVESTMENT GRADE MUNI TRUST
COLONIAL MUNICIPAL INCOME TRUST
COLONIAL NEW YORK INSURED MUNICIPAL FUND
COLUMBIA BALANCED FUND, INC.
COLUMBIA REAL ESTATE EQUITY FUND, INC.
COLUMBIA DAILY INCOME COMPANY
COLUMBIA FIXED INCOME SECURITIES FUND, INC.
COLUMBIA HIGH-YIELD FUND, INC.
COLUMBIA INTERNATIONAL STOCK FUND, INC.
COLUMBIA MID CAP GROWTH FUND, INC.
COLUMBIA NATIONAL MUNICIPAL BOND FUND, INC.
COLUMBIA OREGON MUNICIPAL BOND FUND, INC.
COLUMBIA SHORT TERM BOND FUND, INC.
COLUMBIA SMALL CAP GROWTH FUND, INC.
COLUMBIA STRATEGIC INVESTOR FUND, INC.
COLUMBIA TECHNOLOGY FUND, INC.
LIBERTY VARIABLE INVESTMENT TRUST
Colonial Small Cap Value Fund, VS
Colonial Strategic Income Fund, VS
Columbia High Yield Fund, VS
Columbia International Fund, VS
Liberty Asset Allocation Fund, VS
Liberty Growth & Income Fund, VS
Liberty S&P 500 Index Fund, VS
Liberty Select Value Fund, VS
COLUMBIA FUNDS TRUST I
Columbia High Yield Opportunity Fund
Columbia Strategic Income Fund
Columbia Tax-Managed Growth Fund
Columbia Tax-Managed Growth Fund II
Columbia Tax-Managed Value Fund
COLUMBIA FUNDS TRUST II
Columbia Money Market Fund
Columbia Newport Greater China Fund
COLUMBIA FUNDS TRUST III
Columbia Corporate Bond Fund
Columbia Federal Securities Fund
Columbia Global Equity Fund
Columbia Intermediate Government Income Fund
Columbia Liberty Fund
Columbia Mid Cap Value Fund
Columbia Quality Plus Bond Fund
COLUMBIA FUNDS TRUST IV
Columbia Municipal Money Market Fund
Columbia Tax-Exempt Fund
Columbia Tax-Exempt Insured Fund
Columbia Utilities Fund
COLUMBIA FUNDS TRUST V
Columbia California Tax-Exempt Fund
Columbia Connecticut Intermediate Municipal Bond Fund
Columbia Connecticut Tax-Exempt Fund
Columbia Florida Intermediate Municipal Bond Fund
Columbia Intermediate Tax-Exempt Bond Fund
Columbia Large Company Index Fund
Columbia Massachusetts Intermediate Municipal Bond Fund
Columbia Massachusetts Tax-Exempt Fund
Columbia New Jersey Intermediate Municipal Bond Fund
Columbia New York Intermediate Municipal Bond Fund
Columbia New York Tax-Exempt Fund
Columbia Pennsylvania Intermediate Municipal Bond
Columbia Rhode Island Intermediate Municipal Bond
Columbia Small Company Index Fund
Columbia U.S. Treasury Index Fund
COLUMBIA FUNDS TRUST VI
Columbia Growth & Income Fund
Columbia Small Cap Value Fund
COLUMBIA FUNDS TRUST VII
Columbia Newport Tiger Fund
COLUMBIA FUNDS TRUST VIII
Columbia Income Fund
Columbia Intermediate Bond Fund
COLUMBIA FUNDS TRUST IX
Columbia High Yield Municipal Fund
Columbia Managed Municipals Fund
COLUMBIA FUNDS TRUST XI
Columbia Asset Allocation Fund
Columbia Disciplined Value Fund
Columbia Dividend Income Fund
Columbia Growth Stock Fund
Columbia Large Cap Core Fund
Columbia Large Cap Growth Fund
Columbia Small Cap Fund
Columbia Small Company Equity Fund
Columbia Young Investor Fund
XXXXX XXX VARIABLE INVESTMENT TRUST
Liberty Federal Securities Fund, VS
Liberty Money Market Fund, VS
Liberty Small Company Growth Fund, VS
Columbia Large Cap Growth Fund, VS
SCHEDULE D
TRI-PARTY REPO CUSTODIAN BANKS ACCOUNT NUMBERS
