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RETIREMENT PLAN CUSTODIAL SERVICES AGREEMENT
THIS AGREEMENT is made and entered into as of November 17, 2000, by and
between each registered investment company ("the Funds") listed on Schedule A
hereto as it may be amended from time to time (herein referred to individually
and collectively as the "Company" or "Companies"), and STATE STREET BANK AND
TRUST COMPANY, a Massachusetts trust company ("State Street").
WHEREAS, Company desires to name a custodial trustee without
discretionary trust powers and/or a custodian (in either or both capacities a
"Custodian") for individual retirement accounts, simplified employee pension
plans, 403(b)(7) custodial accounts and defined contribution retirement plans
(whether or not "qualified" under the Internal Revenue Code of 1986 ("Code") and
whether or not subject to the Employee Retirement Income Security Act of 1974
("ERISA")) (all such accounts and plans are herein referred to collectively as
"Plans") which Company sponsors, or may hereafter sponsor, for participants to
invest solely in shares of the Company's investment portfolio or portfolios; and
WHEREAS, State Street is willing to serve as Custodian with respect to
Plans approved by State Street, but only on the terms and conditions set forth
herein;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the parties agree as follows:
1. State Street shall serve as Custodian for Plans sponsored by the
Company which State Street approves as hereinafter provided. Company and State
Street agree to evidence their agreement for State Street to act as such with
respect to each Plan approved by State Street by executing a Retirement Plan
Custodial Services Confirmation substantially in the form attached hereto as
Exhibit A ("Confirmation"), and each party agrees to execute such further
documents evidencing such agreement as may be reasonably requested by either
party from time to time. As to each Plan, the "Effective Date" for purposes
hereof shall be the date specified as such in the Confirmation for such Plan.
State Street certifies that it is qualified to act as Custodian for the Plans
under the requirements of the Code.
2. No Plan shall provide for State Street to serve as Custodian for any
assets whatsoever other than shares of the Company. In no event shall any Plan
provide for State Street (i) to have or exercise any discretionary authority or
discretionary control whatsoever respecting management of the Plan or any
authority or control respecting management or disposition of any assets of the
Plan; (ii) to render or have authority or responsibility to render investment
advice with respect to any moneys or other property of any Plan; or (iii) to
have or exercise any discretionary authority or discretionary responsibility in
the administration of any Plan. No Plan shall provide for State Street to be,
and in no event shall State Street be deemed to be, a "fiduciary" as defined in
ERISA.
3. State Street shall serve as Custodian with respect to the Company
only during such period of time as the Company maintains its shareholder
accounts and records on the computerized mutual fund recordkeeping system of DST
Systems, Inc. (the "System"). State Street shall at all times have full access
to and use of all accounts and records relating to accounts on which State
Street is named custodian or trustee and which are maintained on the System for
purposes of performing its duties and obligations as such custodian or trustee.
In addition, State Street, its auditors and accountants, and to the extent
required by law its regulatory authorities, shall have full access at all times
to all such accounts and records for purposes of audit, examination, and testing
and verifying compliance with the terms of the Plans and any other applicable
governing documents, all applicable requirements of law and all applicable
accounting standards. Company hereby irrevocably authorizes and instructs DST
Systems, Inc. ("System Provider") to provide such access to State Street and to
permit State Street to make use of such accounts and records upon demand. The
Company irrevocably acknowledges and agrees that State Street may appoint agents
and subcontractors with respect to servicing such accounts. If a party appoints
an agent or delegates its responsibilities under this Agreement, in whole or in
part, such party shall remain responsible for the performance of such
responsibilities. The provisions of this paragraph shall continue after the
termination of System and other services provided by System Provider to the
Company for so long as such access to and use of such accounts and records may
be reasonably required by State Street for the purposes stated above. Further,
Company shall deliver to State Street a
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Consent and Authorization substantially in the form attached hereto as Exhibit
B. State Street's agreement to serve as Custodian hereunder shall not be
effective as to the Company until State Street has received such Consent and
Authorization executed by the Company.
4. Company shall submit to State Street for approval all Plans for
which Company wishes for State Street to serve as Custodian, including any and
all related application forms, adoption agreements, transfer request forms,
disclosure statements, Plan loan-related documents, beneficiary designation
forms and any other Plan-related documents ("Plan Documents"), and any and all
amendments, modifications and supplements thereto which Company may propose to
use from time to time. State Street shall not become the Custodian of any Plan
unless and until it has approved the applicable Plan Documents in writing as
evidenced by its execution of the Confirmation referencing the same, and State
Street shall not be deemed to have accepted and agreed to any subsequent
amendment, modification or supplement to any Plan Document unless and until it
has approved the same in writing. State Street's review and approval of all Plan
Documents and any and all amendments, modifications and supplements thereto is
solely for State Street's benefit, and Company shall bear full responsibility
for the form and content thereof and compliance with all applicable laws, rules
and regulations, as amended from time to time. Company shall be responsible for
acquiring, at Company's sole expense, Internal Revenue Service determination
letters ("IRS Letters") with respect to all Plans for which such determination
letters are required by the Code and shall promptly provide State Street copies
thereof.
5. Company shall be solely responsible for all costs and expenses (i)
of preparing, printing and distributing all Plan Documents and amendments,
modifications and supplements thereto, including but not limited to costs and
expenses necessary in order to comply with new or amended laws, rules and
regulations, or (ii) related to or arising from any merger, reorganization,
dissolution, termination or other organizational change involving any Plan or
Company.
6. With respect to all existing and future Plans (if any) in existence
with enrolled participants prior to the Effective Date with respect thereto, in
the event an additional registered investment company is to be added to Schedule
A or a registered investment company is reorganized into one of the Companies
listed on Schedule A:
(i) Company, at its sole expense, shall in a timely manner
obtain the removal or resignation of any prior trustee or custodian,
modify and amend Plan Documents as necessary to name State Street as
Custodian and give all notices, obtain all approvals and take such
other steps as may be required in connection therewith under the Plan
Documents and applicable laws, rules and regulations.
(ii) Except as provided in the next paragraph, Company, at its
sole expense, shall cause to be prepared, mailed, distributed and filed
all tax reports, information returns and other documents required by
the Code with respect to Plan accounts ("Returns"), and shall cause to
be withheld and paid all taxes relating to such accounts, with respect
to the portion of the calendar year during which the Effective Date
occurs which is prior thereto.
(iii) Provided that State Street consents to do so in writing,
State Street shall cause to be prepared, mailed, distributed and filed
all Returns for the calendar year in which the Effective Date occurs;
provided, however, that Company shall provide or cause to be provided
to State Street all necessary information with respect to the portion
of such year prior to the Effective Date. State Street shall be
entitled to rely on the accuracy and completeness of such information
with no duty to investigate or verify the same, and Company shall
indemnify and hold harmless State Street from and against, any and all
losses, liabilities, claims, demands, actions, suits and expenses
(including reasonable attorneys fees and penalties and other sums
assessed by any federal, state or local governmental agency including
the Internal Revenue Service and the United States Department of Labor
("Government Authority")) arising out of or resulting from any error,
omission, inaccuracy or other deficiency therein. Company, at its sole
expense, shall cause to be withheld and paid all taxes relating to such
accounts with respect to the portion of the calendar year during which
the Effective Date occurs which is prior thereto.
(iv) If and to the extent necessary to permit performance of
all duties and obligations of the Custodian, Company, at its sole
expense, shall transfer or cause to be transferred onto the System to
the
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maximum extent possible, and shall otherwise deliver or cause to be
delivered to the transfer agent or other agent(s) which will perform
shareholder account recordkeeping and servicing functions with respect
to Plan accounts after the Effective Date, all relevant records
previously maintained with respect to the accounts of participants in
such Plans.
(v) State Street shall have no responsibility for, and Company
shall, except to the extent (if any) prohibited by ERISA, indemnify and
hold harmless State Street from and against, any and all losses,
liabilities, claims, demands, actions, suits and expenses (including
reasonable attorneys fees and penalties and other sums assessed by any
Government Authority) arising out of or resulting from (a) any acts,
omissions or errors of any previous trustee or custodian, including but
not limited to its failure to file or mail any Returns, withhold or pay
any taxes, or file any schedules or other required information, (b) any
error, omission, inaccuracy or other deficiency in the Plan participant
account records or other relevant records created and maintained prior
to the Effective Date, or (c) costs and expenses of enforcing Company's
obligations and agreements hereunder.
7. As compensation for its services as Custodian as provided for in
this Agreement, the Company agrees that State Street shall be paid the fees set
forth in Exhibit C attached hereto, as the same may be amended from time to time
by mutual agreement of the parties.
8. Subject to any longer notice periods required by the Plan Documents,
Company may remove State Street, and State Street may resign, as Custodian of
any or all the Plans by providing sixty (60) days written notice to the other
party. In the event of such removal or resignation, this Agreement shall
terminate and Company, at its sole expense, shall in a timely manner appoint a
successor trustee or custodian, modify and amend Plan Documents as necessary to
delete all references to State Street, and give all notices, obtain all
approvals and take such other steps as may be required in connection therewith
under the Plan Documents and applicable laws, rules and regulations.
9. Except to the extent (if any) prohibited by ERISA, and except to the
extent resulting from the negligence or willful misconduct of State Street,
Company shall indemnify and hold harmless State Street from and against any and
all losses, liabilities, claims, demands, actions, suits and expenses whatsoever
(including reasonable attorneys fees, penalties and other sums assessed by any
Government Authority, and all costs and expenses of enforcing Company's
obligations and agreements hereunder) arising out of, resulting from or in
connection with (i) the Plans and Plan Documents, (ii) the appointment of and
service by State Street as Custodian therefor, (iii) any acts, omissions or
errors of any successor trustee or custodian (including but not limited to its
failure to file or mail any Returns, reports, schedules or other required
documentation, or withhold or pay any taxes) or of any Plan administrator,
co-trustee or other fiduciary, (iv) any instructions given by or on behalf of
the Company, or any policies, procedures or practices adopted or followed by the
Company or the Company's transfer or other shareholder servicing agent(s) (other
than State Street), with respect to shareholder account recordkeeping and
servicing which impacts Plan accounts, or (v) the failure of Company to perform
any of its obligations hereunder.
10. This Agreement shall be construed according to, and the rights and
liabilities of the parties hereto shall be governed by, the laws of the
Commonwealth of Massachusetts, without reference to the conflicts of laws
principles thereof.
11. Neither this Agreement nor any rights or obligations hereunder may
be assigned by either party hereto, whether voluntarily, involuntarily or by
operation of law, without the prior written consent of the other, such consent
not to be unreasonably withheld, except to entities controlled by, under common
control with or controlling the assigning party, provided that such assignee has
financial capacity at least equal to that of the assignor. The foregoing
restriction on assignment shall not preclude either party from appointing agents
and delegating responsibilities hereunder to such agents. This Agreement shall
inure to the benefit of and be binding upon the parties hereto and their
respective successors and permitted assigns.
12. The provisions for indemnification extended hereunder are intended
to and shall continue after and survive the expiration, termination or
cancellation of this Agreement. All rights and remedies of each party hereunder
shall be cumulative of all other rights and remedies which may be available to
such party.
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13. No provisions of the Agreement may be amended or modified in any
manner except by a written agreement properly authorized and executed by each
party hereto.
14. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but all of which together shall constitute one
and the same instrument.
15. If any provision of this Agreement shall be determined to be
invalid or unenforceable, the remaining provisions of this Agreement shall not
be affected thereby, and every provision of this Agreement shall remain in full
force and effect and shall remain enforceable to the fullest extent permitted by
applicable law.
16. Neither the execution nor performance of this Agreement shall be
deemed to create a partnership or joint venture by and between Company and State
Street.
17. This Agreement shall be deemed for all purposes to constitute a
separate and discrete agreement between State Street and each of the Companies
listed on Schedule A as it may be amended by the parties, and no Company shall
be responsible or liable for any of the obligations of any other Company under
this Agreement, notwithstanding anything to the contrary contained herein.
18. State Street acknowledges that all shareholder accounts and records
are confidential information, and State Street represents that State Street will
maintain the confidentiality of the information and will use the information
solely for the purposes for which the information is disclosed.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the day and year first above written by their respective duly
authorized officers.
STATE STREET BANK AND TRUST COMPANY
By:
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Name:
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Title:
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THE FUNDS LISTED ON SCHEDULE A
By:
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Name:
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Title:
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SCHEDULE A
LIST OF INVESTMENT COMPANIES (10/2000)
XXXXXX GROWTH FUND, INC., A MARYLAND CORPORATION
XXXXXX GROWTH AND INCOME FUND, INC., A MARYLAND CORPORATION
XXXXXX INVESTMENT PORTFOLIO TRUST, A DELAWARE BUSINESS TRUST
Series: Xxxxxx Mid Cap Growth Fund
Xxxxxx Mid Cap Value Fund
Xxxxxx Small Company Growth Fund
Xxxxxx New Generation Fund
Xxxxxx Select Fund
Xxxxxx Balanced Fund
Xxxxxx Information Technology Fund
XXXXXX WORLDWIDE FUNDS TRUST, A DELAWARE BUSINESS TRUST
Series: Xxxxxx International Fund
Xxxxxx International CORE Fund
International Equity Fund
XXXXXX OMNI INVESTMENT TRUST, A MASSACHUSETTS BUSINESS TRUST
Series: Xxxxxx Small Cap Value Fund
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EXHIBIT A
RETIREMENT PLAN CUSTODIAL SERVICES CONFIRMATION
THIS CONFIRMS THAT THE FUNDS LISTED ON SCHEDULE A (herein referred to
individually and collectively as the "Company" or "Companies") has designated,
and hereby designates, STATE STREET BANK AND TRUST COMPANY, a Massachusetts
trust company with offices at 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000
("State Street"), as custodial trustee without discretionary trust powers/
custodian under the Traditional, Xxxx, Education, SEP and Simple individual
retirement accounts/403(b) plans/qualified plans ("Plans") sponsored by Company,
which are created and governed by the following described Plan documents:
Xxxxxx Funds Universal XXX Information Kit (2/1999)
Xxxxxx Funds Simple XXX Kit (10/1999)
Xxxxxx Funds 403(b)(7) Plan Kit (5/2000)
Xxxxxx Funds Money Purchase Pension and Profit Sharing Plans (Amended
7/1994)
State Street has accepted, and hereby accepts, such appointment and certifies
that it is qualified to act as such under the applicable provisions of the
Internal Revenue Code of 1986, as amended.
This agreement is made under and subject to the terms of that certain Retirement
Plan Custodial Services Agreement by and between Company and State Street dated
as of November 17, 2000 (the "Agreement"), which is hereby incorporated herein
by reference.
The Effective Date of this agreement for purposes of the Agreement shall be
November 17, 2000.
IN WITNESS WHEREOF, the parties have caused this instrument to be executed by
their respective duly authorized officers.
STATE STREET BANK AND TRUST COMPANY
By:
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Name:
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Title:
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THE FUNDS LISTED ON SCHEDULE A
By:
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Name:
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Title:
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EXHIBIT B
CONSENT AND AUTHORIZATION
In consideration of State Street Bank and Trust Company ("State Street") serving
as custodian and/or custodial trustee for the Accounts (as hereinafter defined),
the undersigned registered investment companies agree that State Street shall at
all times have full access to and use of all accounts and records relating to
Accounts which are maintained on the computerized mutual fund shareholder
recordkeeping system of DST Systems, Inc. ("System Provider") for purposes of
performing its duties and obligations as such custodian and/or custodial
trustee. In addition, State Street, its auditors and accountants, and to the
extent required by law its regulatory authorities, shall have full access at all
times to all such accounts and records for purposes of audit, examination, and
testing and verifying compliance with all applicable requirements of law, all
applicable accounting standards, and the terms of the retirement plan documents,
trust and custody agreements and other applicable governing documents relating
to the Accounts.
System Provider is hereby authorized and instructed to provide such access to
State Street and to permit State Street to make use of such accounts and records
upon demand. The undersigned acknowledges and agrees that System provider may
serve as agent and sub-contractor of State Street with respect to the Accounts.
The provisions of this Consent and Authorization shall continue after the
termination of System and other services provided by System Provider to the
undersigned for so long as such access to and use of such accounts and records
may be reasonably required by State Street.
The term "Accounts" shall mean all individual retirement accounts, simplified
employee pension plan accounts, 403(b)(7) custodial accounts, Xxxxx accounts,
defined contribution retirement plan accounts and other accounts of any type for
which State Street may from time to time be named as custodian or trustee which
contain shares issued by the undersigned investment companies.
This Consent and Authorization is irrevocable in every respect, shall be binding
upon the undersigned and its successors and assigns and shall inure to the
benefit of State Street and System Provider and their respective successors and
assigns.
THE FUNDS LISTED ON SCHEDULE A
By:
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Name:
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Title:
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EXHIBIT C
FEE SCHEDULE
Retirement accounts annual maintenance fee charged to account holders: $12 per
fund account, with a maximum of $24 per social security number.
