Golden Oak(R)Family of Funds
Custodian Contract
Exhibit (g) under Form N-1A
Exhibit 10 under Item 601/ Reg. S-K
CUSTODIAN AGREEMENT
This Agreement between GOLDEN OAK(R) FAMILY OF FUNDS a business trust
organized and existing under the laws of Delaware (the "Fund"), and STATE
STREET BANK and TRUST COMPANY, a Massachusetts trust company (the
"Custodian").
WITNESSETH:
WHEREAS, the Fund is authorized to issue shares in separate series,
with each such series representing interests in a separate portfolio of
securities and other assets; and
WHEREAS, the Fund intends that this Agreement be applicable to those
series listed on Schedule D hereto, as amended from time to time (such series
together with all other series subsequently established by the Fund and made
subject to this Agreement in accordance with Section 18, be referred to
herein as the "Portfolio(s)").
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
The Fund hereby employs the Custodian as the custodian of the assets of the
Portfolios of the 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)
agrees to deliver to the Custodian all securities and cash of the Portfolios,
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", as defined in Section 3(a)(1) of the Investment Company Act of
1940, as amended (the "1940 Act"), whether in the same "group of investment
companies" (as defined in Section 12(d)(1)(G)(ii) of the 0000 Xxx) or
otherwise, including, pursuant to Section 12(d)(1)(F) of the 1940 Act
(hereinafter sometimes referred to as the "Underlying Portfolios"), the
holding of confirmation statements that identify the shares as being recorded
in the Custodian's name on behalf of the Portfolios will be deemed custody
for purposes hereof.
Upon receipt of "Proper Instructions" (as such term is defined in Section 6
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 of
the Fund (the "Board") on behalf of the applicable Portfolio(s). The
Custodian may employ as sub-custodian for the 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 2.9A in an account
with State Street Bank and Trust company or such other entity which may from
time to time act as a transfer agent for the underlying Portfolios and with
respect to which the Custodian is provided with Proper Instructions (the
"Underlying Transfer Agent").
SECTION 2.2 DELIVERY OF SECURITIES. The Custodian shall release and
deliver domestic securities owned by a Portfolio held by the Custodian 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
for the delivery of securities owned by the Portfolio prior to
the receipt of such collateral;
11) 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;
12) For delivery in accordance with the provisions of any agreement
among the Fund on behalf of the Portfolio, the Custodian and a
broker-dealer registered under the Securities Exchange Act of
1934 (the "Exchange Act") and a member of The National
Association of Securities Dealers, Inc. ("NASD"), relating to
compliance with the rules of The Options Clearing Corporation and
of any registered national securities exchange, or of any similar
organization or organizations, regarding escrow or other
arrangements in connection with transactions by the Portfolio of
the Fund;
13) For delivery in accordance with the provisions of any agreement
among the Fund on behalf of the Portfolio, the Custodian, and a
futures commission merchant registered under the Commodity
Exchange Act, relating to compliance with the rules of the
Commodity Futures Trading Commission ("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;
14) Upon receipt of instructions from 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;
15) In the case of a sale processed through the Underlying Transfer
Agent of Underlying Shares, in accordance with section 2.9A
hereof; and
16) For any other proper 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,
setting forth the purpose for which such delivery is to be made,
declaring such purpose to be a proper trust purpose, 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 adviser as the Portfolio, or
in the name or nominee name of any agent appointed pursuant to Section 2.7 or
in the name or nominee name of any sub-custodian appointed pursuant to
Section 1. All securities accepted by the Custodian on behalf of the
Portfolio under the terms of this Agreement shall be in "street name" or
other good delivery form. If, however, 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
thereof and shall credit such income, as collected, to such Portfolio's
custodian account. Without limiting the generality of the foregoing, the
Custodian shall detach and present for payment all coupons and other income
items requiring presentation as and when they become due and shall collect
interest when due on securities held hereunder. Income due each Portfolio on
securities loaned pursuant to the provisions of Section 2.2 (10) shall be the
responsibility of the 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 2.9A hereof; (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, (i) against delivery of the securities
either in certificate form or through an entry crediting the
Custodian's account at the Federal Reserve Bank with such
securities or (ii) against delivery of the receipt evidencing
purchase by the Portfolio of securities owned by the Custodian
along with written evidence of the agreement by the Custodian to
repurchase such securities from the Portfolio; or (e) for
transfer to a time deposit account of the Fund in any bank,
whether domestic or foreign; such transfer may be effected prior
to receipt of a confirmation from a broker and/or the applicable
bank pursuant to Proper Instructions from the Fund as defined
herein;
2) In connection with conversion, exchange or surrender of
securities owned by the Portfolio as set forth in Section 2.2
hereof;
3) For the redemption or repurchase of Shares issued as set forth in
Section 5 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; and
7) For any other proper purpose, but only upon receipt of Proper
Instructions from the Fund on behalf of the Portfolio specifying
the amount of such payment, setting forth the purpose for which
such payment is to be made, declaring such purpose to be a proper
trust purpose, 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 subject to the following provisions:
1) The Custodian may keep securities of the Portfolio in a U.S.
Securities System provided that such securities are represented
in an account of the Custodian in the U.S. Securities System (the
"U.S. Securities System Account") which account shall not include
any assets of the Custodian other than assets held as a
fiduciary, custodian or otherwise for customers;
2) The records of the Custodian with respect to securities of the
Portfolio which are maintained in a U.S. Securities System shall
identify by book-entry those securities belonging to the
Portfolio;
3) The Custodian shall pay for securities purchased for the account
of the Portfolio upon (i) receipt of advice from the U.S.
Securities System that such securities have been transferred to
the U.S. Securities System Account, and (ii) the making of an
entry on the records of the Custodian to reflect such payment and
transfer for the account of the Portfolio. The Custodian shall
transfer securities sold for the account of the Portfolio upon
(i) receipt of advice from the U.S. Securities System that
payment for such securities has been transferred to the U.S.
Securities System Account, and (ii) the making of an entry on the
records of the Custodian to reflect such transfer and payment for
the account of the Portfolio. Copies of all advices from the
U.S. Securities System of transfers of securities for the account
of the Portfolio shall identify the Portfolio, be maintained for
the Portfolio by the Custodian and be provided to the Fund at its
request. Upon request, the Custodian shall furnish the Fund on
behalf of the Portfolio confirmation of each transfer to or from
the account of the Portfolio in the form of a written advice or
notice and shall furnish to the Fund on behalf of the Portfolio
copies of daily transaction sheets reflecting each day's
transactions in the U.S. Securities System for the account of the
Portfolio;
4) The Custodian shall provide the Fund with any report obtained by
the Custodian on the U.S. Securities System's accounting system,
internal accounting control and procedures for safeguarding
securities deposited in the U.S. Securities System;
5) Anything to the contrary in this Agreement notwithstanding, the
Custodian shall be liable to the Fund for the benefit of the
Portfolio for any loss or damage to the Portfolio resulting from
use of the U.S. Securities System by reason of any negligence,
misfeasance or misconduct of the Custodian or any of its agents
or of any of its or their employees or from failure of the
Custodian or any such agent to enforce effectively such rights as
it may have against the U.S. Securities System; at the election
of the Fund, it shall be entitled to be subrogated to the rights
of the Custodian with respect to any claim against the U.S.
Securities System or any other person which the Custodian may
have as a consequence of any such loss or damage if and to the
extent that the Portfolio has not been made whole for any such
loss or damage.
SECTION 2.9 SEGREGATED ACCOUNT. The Custodian shall upon receipt of
Proper Instructions on behalf of each applicable Portfolio establish and
maintain a segregated account or accounts for and on behalf of each such
Portfolio, into which account or accounts may be transferred cash and/or
securities, including securities maintained in an account by the Custodian
pursuant to Section 2.8 hereof, (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 cash or government securities in
connection with options purchased, sold or written by the Portfolio or
commodity futures contracts or options thereon purchased or sold by the
Portfolio, (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 SEC, or interpretative opinion of the staff of the
SEC, relating to the maintenance of segregated accounts by registered
investment companies, and (iv) for other proper trust purposes, but only, in
the case of clause (iv), upon receipt of Proper Instructions from the Fund on
behalf of the applicable Portfolio, setting forth the purpose or purposes of
such segregated account and declaring such purpose(s) to be a proper trust
purpose.
SECTION 2.9A 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 each 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 adviser that such Underlying Shares have been purchased
and will be transferred to the account of the Custodian, on behalf
of the Portfolio, on the books and records of the Underlying
Transfer Agent, and (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 adviser that such securities have been redeemed and that
payment for such securities will be transferred to the Custodian and
(ii) the making of an entry on the records 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 therefore only after such
securities are redeemed. Copies of all advices from the Portfolio's
investment adviser of purchases and sales of Underlying Shares for
the account of the Portfolio shall identify the Portfolio, be
maintained for the Portfolio by the Custodian, and be provided to
the investment adviser at its request;
4) The Custodian shall not be liable to the Fund or any Portfolio for any
loss or damage to the Fund or any Portfolio resulting from
maintenance of Underlying Shares with Underlying Transfer Agent
except for losses resulting directly from the negligence,
misfeasance or misconduct of the Custodian or any of its agents or
of any of its or their employees.
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 relating to
corporate actions (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 3. PROVISIONS RELATING TO RULES 17F-5 AND 17F-7 UNDER THE 1940 ACT
SECTION 3.1. DEFINITIONS. Capitalized terms in this Section 3
shall have the following 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 U.S. Securities and Exchange Commission (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)(2) 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 Contract, 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
Amendment 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 Contract. 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 as Foreign Custody Manager to the Fund with
respect to the country as to which the Custodian's acceptance of delegation
is withdrawn.
3.2.3 SCOPE OF DELEGATED RESPONSIBILITIES:
(a) SELECTION OF ELIGIBLE FOREIGN CUSTODIANS. Subject to the
provisions of this Section 3.2, the Foreign Custody Manager may place and
maintain the Foreign Assets in the care of the Eligible Foreign Custodian
selected by the Foreign Custody Manager in each country listed on Schedule A,
as amended from time to time. In performing its delegated responsibilities
as Foreign Custody Manager to place or maintain Foreign Assets with an
Eligible Foreign Custodian, the Foreign Custody Manager shall determine that
the Foreign Assets will be subject to reasonable care, based on the standards
applicable to custodians in the country in which the Foreign Assets will be
held by that Eligible Foreign Custodian, after considering all factors
relevant to the safekeeping of such assets, including, without limitation the
factors specified in Rule 17f-5(c)(1).
(b) CONTRACTS WITH ELIGIBLE FOREIGN CUSTODIANS. The Foreign Custody
Manager shall determine that the contract governing the foreign custody
arrangements with each Eligible Foreign Custodian selected by the Foreign
Custody Manager will satisfy the requirements of Rule 17f-5(c)(2).
(c) MONITORING. In each case in which the Foreign Custody Manager
maintains Foreign Assets with an Eligible Foreign Custodian selected by the
Foreign Custody Manager, the Foreign Custody Manager shall establish a system
to monitor (i) the appropriateness of maintaining the Foreign Assets with
such Eligible Foreign Custodian and (ii) the contract governing the custody
arrangements established by the Foreign Custody Manager with the Eligible
Foreign Custodian. In the event the Foreign Custody Manager determines that
the custody arrangements with an Eligible Foreign Custodian it has selected
are no longer appropriate, the Foreign Custody Manager shall notify the Board
in accordance with Section 3.2.5 hereunder.
3.2.4 GUIDELINES FOR THE EXERCISE OF DELEGATED AUTHORITY. For
purposes of this Section 3.2, the Board shall be deemed to have considered
and determined to accept such Country Risk as is incurred by placing and
maintaining the Foreign Assets in each country for which the Custodian is
serving as Foreign Custody Manager of the Portfolios.
3.2.5 REPORTING REQUIREMENTS. The Foreign Custody Manager shall
report the withdrawal of the Foreign Assets from an Eligible Foreign
Custodian and the placement of such Foreign Assets with another Eligible
Foreign Custodian by providing to the Board an amended 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 Contract
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 adviser)
with an analysis of the custody risks associated with maintaining assets with
the Eligible Securities Depositories set forth on Schedule B hereto in
accordance with section (a)(1)(i)(A) of Rule 17f-7, and (b) monitor such
risks on a continuing basis, and promptly notify the Fund (or its
duly-authorized investment manager or investment adviser) of any material
change in such risks, in accordance with section (a)(1)(i)(B) of Rule 17f-7.
3.3.2 STANDARD OF CARE. The Custodian agrees to exercise
reasonable care, prudence and diligence in performing the duties set forth in
Section 3.3.1.
SECTION 3.4 LIMITATION OF LIABILITY.
The Fund represents and warrants and the Custodian acknowledges that:
(a) the Fund is a "series company" as defined in Rule 18f-2(a) promulgated
under the 1940 Act and each Portfolio is a portfolio of assets specifically
allocated to a series of shares of the Fund as contemplated by such rule; (b)
all persons extending credit to, contracting with or having any claim against
any Portfolio (including any claims arising hereunder) shall look only to the
assets specifically allocated to such Portfolio for payment under such
credit, contract or claim and not to any assets specifically allocated to
another series of shares of the Fund or to any other assets of the Fund; and
(c) neither the shareholders nor directors of the Fund nor any of the Fund's
officers, employees or agents, whether past, present or future, shall be
liable for such credit, contract or claim.
SECTION 4. DUTIES OF THE CUSTODIAN WITH RESPECT TO PROPERTY OF THE
PORTFOLIOS HELD OUTSIDE THE UNITED STATES
SECTION 4.1 DEFINITIONS. Capitalized terms in this Section 4 shall
have the following 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 ASSETS. The Custodian or a
Foreign Sub-Custodian shall release and deliver foreign securities of the
Portfolios held by the Custodian or such Foreign Sub-Custodian, or in a
Foreign Securities System account, only upon receipt of Proper Instructions,
which may be continuing instructions when deemed appropriate by the parties,
and only in the following cases:
(i) upon the sale of such foreign securities for the Portfolio in
accordance with commercially reasonable market practice in the
country where such foreign securities are held or traded,
including, without limitation: (A) delivery against expectation
of receiving later payment; or (B) in the case of a sale effected
through a Foreign Securities System, in accordance with the rules
governing the operation of the Foreign Securities System;
(ii) in connection with any repurchase agreement related to foreign
securities;
(iii) to the depository agent in connection with tender or other
similar offers for foreign securities of the Portfolios;
(iv) to the issuer thereof or its agent when such foreign securities
are called, redeemed, retired or otherwise become payable;
(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) in connection with trading in options and futures contracts,
including delivery as original margin and variation margin;
(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 Contract, legal fees, accounting fees, and other operating
expenses;
(iv) for the purchase or sale of foreign exchange or foreign exchange
contracts for the Portfolio, including transactions executed with
or through the Custodian or its Foreign Sub-Custodians;
(v) in connection with trading in options and futures contracts,
including delivery as original margin and variation margin;
(vi) 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 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 Contract 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, including without limitation information relating to
Foreign Securities Systems, 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 Contract 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 corporate actions 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 commercially 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. Except as may arise from
the Custodian's own negligence or willful misconduct or the negligence or
willful misconduct of a Sub-Custodian, the Custodian shall be without
liability to the Fund for any loss, liability, claim or expense resulting
from or caused by anything which is part of Country Risk.
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 Contract 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. 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 6. PROPER INSTRUCTIONS
Proper Instructions as used throughout this Agreement means a writing signed
or initialed by one or more person or persons as the Board shall have from
time to time authorized. Each such writing shall set forth the specific
transaction or type of transaction involved, including a specific statement
of the purpose for which such action is requested. Oral instructions will be
considered Proper Instructions if the Custodian reasonably believes them to
have been given by a person authorized to give such instructions with respect
to the transaction involved. The Fund shall cause all oral instructions to
be confirmed in writing. Proper Instructions may include communications
effected directly between electro-mechanical or electronic devices provided
that the Fund and the Custodian agree to security procedures, including but
not limited to, the security procedures selected by the Fund in the Funds
Transfer Addendum attached hereto. For purposes of this Section, Proper
Instructions shall include instructions received by the Custodian pursuant to
any three-party agreement which requires a segregated asset account in
accordance with Section 2.9.
SECTION 7. 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 8. EVIDENCE OF AUTHORITY
The Custodian shall be protected in acting upon any instructions, notice,
request, consent, certificate or other instrument or paper believed by it to
be genuine and to have been properly executed by or on behalf of the 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 9. DUTIES OF CUSTODIAN WITH RESPECT TO THE BOOKS OF ACCOUNT AND
CALCULATION OF NET ASSET VALUE AND NET INCOME
The Custodian shall cooperate with and supply necessary information to the
entity or entities appointed by the Board to keep the books of account of
each Portfolio and/or compute the net asset value per Share of the
outstanding Shares or, if directed in writing to do so by the Fund on behalf
of the Portfolio, shall itself keep such books of account and/or compute such
net asset value per Share. If so directed, the Custodian shall also
calculate daily the net income of the Portfolio as described in the
Prospectus and shall advise the Fund and the Transfer Agent daily of the
total amounts of such net income and, if instructed in writing by an officer
of the Fund to do so, shall advise the Transfer Agent periodically of the
division of such net income among its various components. The Fund
acknowledges and agrees that, with respect to investments maintained with the
Underlying Transfer Agent, the Underlying Transfer Agent is the sole source
of information on the number of shares of a fund held by it on behalf of a
Portfolio and that the Custodian has the right to rely on holdings
information furnished by the Underlying transfer Agent to the Custodian in
performing its duties under this Agreement, including without limitation, the
duties set forth in this Section 9 and in Section 10 hereof; provided
however, that the Custodian shall be obligated to reconcile information as to
purchases and sales of Underlying Shares contained in trade instructions and
confirmations received by the Custodian and to report promptly any
discrepancies to the Underlying Transfer Agent. The calculations of the net
asset value per Share and the daily income of each Portfolio shall be made at
the time or times described from time to time in the Prospectus.
SECTION 10. RECORDS
The Custodian shall with respect to each Portfolio create and maintain all
records relating to its activities and obligations under this Agreement in
such manner as will meet the obligations of 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.
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, relating to the services
provided by the Custodian under this Agreement; such reports, shall be of
sufficient scope and in sufficient detail, as may reasonably be required by
the Fund to provide reasonable assurance that any material inadequacies would
be disclosed by such examination, and, if there are no such inadequacies, the
reports shall so state.
SECTION 13. COMPENSATION OF CUSTODIAN
The Custodian shall be entitled to reasonable compensation for its services
and expenses as Custodian, as agreed upon from time to time between the Fund
on behalf of each applicable Portfolio and the Custodian. Such compensation
shall be set forth in writing on a fee schedule which may be amended from
time to time and as set forth on Exhibit A hereto.
SECTION 14. RESPONSIBILITY OF CUSTODIAN
So long as and to the extent that it is in the exercise of reasonable care,
the Custodian shall not be responsible for the title, validity or genuineness
of any property or evidence of title thereto received by it or delivered by
it pursuant to this Agreement and shall be held harmless in acting upon any
notice, request, consent, certificate or other instrument reasonably believed
by it to be genuine and to be signed by the proper party or parties,
including any futures commission merchant acting pursuant to the terms of a
three-party futures or options agreement. The Custodian shall be held to the
exercise of reasonable care in carrying out the provisions of this Agreement,
but shall be kept indemnified by and shall be without liability to the Fund
for any action taken or omitted by it in good faith without negligence. It
shall be entitled to rely on and may act upon advice of counsel (who may be
counsel for the Fund) on all matters, and shall be without liability for any
action reasonably taken or omitted pursuant to such advice. The Custodian
shall be without liability to the Fund and the Portfolios for any loss,
liability, claim or expense resulting from or caused by anything which is (A)
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, or (B) part of the "prevailing country
risk" of the Portfolios, as such term is used in SEC Release Nos. IC-22658;
IS-1080 (May 12, 1997) or as such term or other similar terms are now or in
the future interpreted by the SEC or by the staff of the Division of
Investment Management thereof.
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 the 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, shall continue in
full force and effect until terminated as hereinafter provided, may be
amended at any time by mutual agreement of the parties hereto and may be
terminated by either party by an instrument in writing delivered or mailed,
postage prepaid to the other party, such termination to take effect not
sooner than sixty (60) days after the date of such delivery or mailing;
provided, however, that 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, 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 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 Declaration of
Trust. 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 the Fund establishes one or more series of Shares in
addition to those listed on Schedule D hereto with respect to which it
desires to have the Custodian render services as custodian under the terms
hereof, it shall so notify the Custodian in writing, and if the Custodian
agrees in writing to provide such services, such series of Shares shall
become a Portfolio hereunder.
SECTION 19. 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 20. 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 21. 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: GOLDEN OAK(R)FAMILY OF FUNDS
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Secretary
Telephone: 000-000-0000
Telecopy: 000-000-0000
To the Custodian: STATE STREET BANK AND TRUST COMPANY
Lafayette Corporate Center
2 Avenue de Lafayette LCC5
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx Xxxxxxx, Unit Head
Telephone: 000-000-0000
Telecopy: 000-000-0000
Such notice, instruction or other instrument shall be deemed to have been
served in the case of a registered letter at the expiration of five business
days after posting, in the case of cable twenty-four hours after dispatch
and, in the case of telex, immediately on dispatch and if delivered outside
normal business hours it shall be deemed to have been received at the next
time after delivery when normal business hours commence and in the case of
cable, telex or telecopy on the business day after the receipt thereof.
Evidence that the notice was properly addressed, stamped and put into the
post shall be conclusive evidence of posting.
SECTION 22. 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 23. DATA ACCESS SERVICES ADDENDUM
The Custodian and the Fund agree to be bound by the terms of the Data Access
Services Addendum attached hereto.
SECTION 24. SHAREHOLDER COMMUNICATIONS ELECTION
SEC Rule 14b-2 requires banks which hold securities for the account of
customers to respond to requests by issuers of securities for the names,
addresses and holdings of beneficial owners of securities of that issuer held
by the bank unless the beneficial owner has expressly objected to disclosure
of this information. In order to comply with the rule, the Custodian needs
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 [ ] 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 June 1, 2002.
GOLDEN OAK(R)FAMILY OF FUNDS FUND SIGNATURE ATTESTED TO BY:
By: /s/ Xxxxx X. Xxxxxxxxx By: /s/ C. Xxxxx Xxxxxxxx
Name: Xxxxx X. Xxxxxxxxx Name: C. Xxxxx Xxxxxxxx
Title: Vice President Title: Assistant Secretary
STATE STREET BANK AND TRUST COMPANY SIGNATURE ATTESTED TO BY:
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxxx X. XxXxxxxx
Name: Xxxxx X. Xxxxxx Name: Xxxxxxx X. XxXxxxxx
Title: Executive Vice President
Title: Vice President & Counsel
SCHEDULE A
STATE STREET
GLOBAL CUSTODY NETWORK
SUBCUSTODIANS
Country Subcustodian
Argentina Citibank, N.A.
Australia Westpac Banking Corporation
Austria Erste Bank der Osterreichischen Sparkassen AG
Bahrain HSBC Bank Middle East
(as delegate of the Hongkong and Shanghai Banking
Corporation Limited)
Bangladesh Standard Chartered Bank
Belgium Fortis Bank nv-sa
Benin via Societe Generale de Banques en Cote d'Ivoire, Abidjan,
Ivory Coast
Bermuda The Bank of Bermuda Limited
Bolivia Citibank, N. A.
Botswana Barclays Bank of Botswana Limited
Brazil Citibank, N.A.
Bulgaria ING Bank N.V.
Burkina Faso via Societe Generale de Banques en Cote d'Ivoire, Abidjan,
Ivory Coast
Canada State Street Trust Company Canada
Chile BankBoston, N.A.
People's Republic Hongkong and Shanghai Banking Corporation Limited,
of China Shanghai and Shenzhen branches
Colombia Cititrust Colombia S.A. Sociedad Fiduciaria
Costa Rica Banco BCT S.A.
Croatia Privredna Banka Zagreb d.d
Cyprus Cyprus Popular Bank Ltd.
Czech Republic Eeskoslovenska Obchodni Banka, A.S.
Denmark Danske Bank A/S
Ecuador Citibank, N.A.
Egypt HSBC Bank Egypt S.A.E.
(as delegate of the Hongkong and Shanghai Banking
Corporation Limited)
Estonia Hansabank
Finland Nordea Bank Finland Plc.
France BNP Paribas Securities Services, S.A.
Germany Dresdner Bank AG
Ghana Barclays Bank of Ghana Limited
Greece National Bank of Greece S.A.
Guinea-Bissau via Societe Generale de Banques en Cote d'Ivoire, Abidjan,
Ivory Coast
Hong Kong Standard Chartered Bank
Hungary HVB Bank Hungary Rt.
Iceland Icebank Ltd.
India Deutsche Bank AG
Hongkong and Shanghai Banking Corporation Limited
Indonesia Standard Chartered Bank
Ireland Bank of Ireland
Israel Bank Hapoalim B.M.
Italy BNP Paribas Securities Services, S.A.
Ivory Coast Societe Generale de Banques en Cote d'Ivoire
Jamaica Scotiabank Jamaica Trust and Merchant Bank Ltd.
Japan The Fuji Bank, Limited
Sumitomo Mitsui Banking Corporation
Jordan HSBC Bank Middle East
(as delegate of the Hongkong and Shanghai Banking
Corporation Limited)
Kazakhstan HSBC Bank Kazakhstan
(as delegate of the Hongkong and Shanghai Banking
Corporation Limited)
Kenya Barclays Bank of Kenya Limited
Republic of Korea Hongkong and Shanghai Banking Corporation Limited
Latvia A/s Hansabanka
Lebanon HSBC Bank Middle East
(as delegate of the Hongkong and Shanghai Banking
Corporation Limited)
Lithuania Vilniaus Bankas AB
Malaysia Standard Chartered Bank Malaysia Berhad
Mali via Societe Generale de Banques en Cote d'Ivoire, Abidjan,
Ivory Coast
Mauritius Hongkong and Shanghai Banking Corporation Limited
Mexico Banco Nacional de Mexico S.A.
Morocco Banque Commerciale du Maroc
Namibia Standard Bank Namibia Limited
Netherlands KAS BANK N.V
New Zealand Westpac Banking Corporation
Niger via Societe Generale de Banques en Cote d'Ivoire, Abidjan,
Ivory Coast
Nigeria Stanbic Bank Nigeria Limited
Norway Nordea Bank Norge ASA
Oman HSBC Bank Middle East
(as delegate of the Hongkong and Shanghai Banking
Corporation Limited)
Pakistan Deutsche Bank AG
Palestine HSBC Bank Middle East
(as delegate of the Hongkong and Shanghai Banking
Corporation Limited)
Panama BankBoston, N.A.
Peru Citibank, N.A.
Philippines Standard Chartered Bank
Poland Bank Handlowy w Warszawie S.A.
Portugal Banco Comercial Portugues
Qatar HSBC Bank Middle East
(as delegate of the Hongkong and Shanghai Banking
Corporation Limited)
Romania ING Bank N.V.
Russia Credit Suisse First Boston AO - Moscow
(as delegate of Credit Suisse First Boston - Zurich)
Senegal via Societe Generale de Banques en Cote d'Ivoire, Abidjan,
Ivory Coast
Singapore The Development Bank of Singapore Limited
Slovak Republic Eeskoslovenska Obchodni Banka, A.S., pobocka zahranicnej
banky v SR
Slovenia Bank Austria Creditanstalt d.d. - Ljubljana
South Africa Nedcor Bank Limited
Standard Bank of South Africa Limited
Spain Banco Santander Central Hispano S.A.
Sri Lanka Hongkong and Shanghai Banking Corporation Limited
Swaziland Standard Bank Swaziland Limited
Sweden Skandinaviska Enskilda Banken
Switzerland UBS AG
Taiwan - R.O.C. Central Trust of China
Thailand Standard Chartered Bank
Togo via Societe Generale de Banques en Cote d'Ivoire, Abidjan,
Ivory Coast
Trinidad & Tobago Republic Bank Limited
Tunisia Banque Internationale Arabe de Tunisie
Turkey Citibank, N.A.
Ukraine ING Bank Ukraine
United Arab Emirates HSBC Bank Middle East
(as delegate of the Hongkong and Shanghai Banking
Corporation Limited)
United Kingdom State Street Bank and Trust Company, London Branch
Uruguay BankBoston, N.A.
Venezuela Citibank, N.A.
Vietnam The Hongkong and Shanghai Banking Corporation Limited
Zambia Barclays Bank of Zambia Limited
Zimbabwe Barclays Bank of Zimbabwe Limited
SCHEDULE B
STATE STREET
GLOBAL CUSTODY NETWORK
DEPOSITORIES OPERATING IN NETWORK MARKETS
Country Depositories
Argentina Caja de Valores S.A.
Australia Austraclear Limited
Austria Oesterreichische Kontrollbank AG
(Wertpapiersammelbank Division)
Belgium Caisse Interprofessionnelle de Depots et de Virements
de Titres, S.A.
Banque Nationale de Belgique
Benin Depositaire Central - Banque de Reglement
Brazil Companhia Brasileira de Liquidacao e Custodia
Sistema Especial de Liquidacao e de Custodia (SELIC)
Central de Custodia e de Liquidacao Financeira de
Titulos Privados
(CETIP)
Bulgaria Central Depository AD
Bulgarian National Bank
Burkina Faso Depositaire Central - Banque de Reglement
Canada Canadian Depository for Securities Limited
Chile Deposito Central de Valores S.A.
People's Republic China Securities Depository and Clearing Corporation
Limited
of China Shanghai Branch
China Securities Depository and Clearing Corporation
Limited
Shenzhen Branch
Colombia Deposito Centralizado de Valores
Deposito Central de Valores
Costa Rica Central de Valores S.A.
Croatia Ministry of Finance
National Bank of Croatia
Sredisnja Depozitarna Agencija d.d.
Czech Republic Stredisko cennych papiru - Ceska republika
Czech National Bank
Denmark Vaerdipapircentralen (Danish Securities Center)
Egypt Misr for Clearing, Settlement, and Depository S.A.E.
Estonia Eesti Vaartpaberikeskus
Finland Finnish Central Securities Depository
France Euroclear France
Germany Clearstream Banking AG, Frankfurt
Greece Bank of Greece,
System for Monitoring Transactions in Securities in
Book-Entry Form
Apothetirion Titlon AE - Central Securities
Depository
Guinea-Bissau Depositaire Central - Banque de Reglement
Hong Kong Hong Kong Securities Clearing Company Limited
Central Moneymarkets Unit
Hungary Kozponti Elszamolohaz es Ertektar (Budapest) Rt.
(KELER)
Iceland Iceland Securities Depository Limited
India National Securities Depository Limited
Central Depository Services India Limited
Reserve Bank of India
Indonesia Bank Indonesia
PT Kustodian Sentral Efek Indonesia
Israel Tel Aviv Stock Exchange Clearing House Ltd. (TASE
Clearinghouse)
Italy Monte Titoli S.p.A.
Ivory Coast Depositaire Central - Banque de Reglement
Jamaica Jamaica Central Securities Depository
Japan Japan Securities Depository Center (JASDEC)
Bank of Japan
Kazakhstan Central Depository of Securities
Kenya Central Bank of Kenya
Republic of Korea Korea Securities Depository
Latvia Latvian Central Depository
Lebanon Custodian and Clearing Center of Financial
Instruments for
Lebanon and the Middle East (Midclear) X.X.X.
Banque du Liban
Lithuania Central Securities Depository of Lithuania
Malaysia Malaysian Central Depository Sdn. Bhd.
Bank Negara Malaysia
Mali Depositaire Central - Banque de Reglement
Mauritius Central Depository and Settlement Co. Ltd.
Bank of Mauritius
Mexico S.D. Indeval, S.A. de C.V.
Morocco Maroclear
Netherlands Nederlands Centraal Instituut voor
Giraal Effectenverkeer B.V. (NECIGEF)
New Zealand New Zealand Central Securities Depository Limited
Niger Depositaire Central - Banque de Reglement
Nigeria Central Securities Clearing System Limited
Norway Verdipapirsentralen (Norwegian Central Securities
Depository)
Oman Muscat Depository & Securities Registration Company,
SAOC
Pakistan Central Depository Company of Pakistan Limited
State Bank of Pakistan
Palestine Clearing Depository and Settlement, a department
of the Palestine Stock Exchange
Peru Caja de Valores y Liquidaciones, Institucion de
Compensacion y Liquidacion de Valores S.A
Philippines Philippine Central Depository, Inc.
Registry of Scripless Securities (XXXX) of the Bureau
of Treasury
Poland National Depository of Securities
(Krajowy Depozyt Papierow Wartos<180>ciowych SA)
Central Treasury Bills Registrar
Portugal INTERBOLSA - Sociedade Gestora de Sistemas de
Liquidacao e de
Sistemas Centralizados de Valores Mobiliarios, S.A.
Qatar Central Clearing and Registration (CCR), a
department of the Doha Securities Market
Romania National Securities Clearing, Settlement and
Depository Company
Bucharest Stock Exchange Registry Division
National Bank of Romania
Russia Vneshtorgbank, Bank for Foreign Trade of the Russian
Federation
Senegal Depositaire Central - Banque de Reglement
Singapore Central Depository (Pte) Limited
Monetary Authority of Singapore
Slovak Republic Stredisko cennych papierov SR, a.s.
National Bank of Slovakia
Slovenia KDD - Centralna klirinsko depotna xxxxxx x.x.
South Africa Central Depository Limited
Share Transactions Totally Electronic (STRATE) Ltd.
Spain Servicio de Compensacion y Liquidacion de Valores,
S.A.
Banco de Espana
Sri Lanka Central Depository System (Pvt) Limited
Sweden Vardepapperscentralen VPC AB
(Swedish Central Securities Depository)
Switzerland SegaIntersettle AG (SIS)
Taiwan - R.O.C. Taiwan Securities Central Depository Co., Ltd.
Thailand Thailand Securities Depository Company Limited
Togo Depositaire Central - Banque de Reglement
Tunisia Societe Tunisienne Interprofessionelle pour la
Compensation et de Depots des Valeurs Mobilieres
Turkey Takas ve Saklama Bankasi A.S. (TAKASBANK)
Central Bank of Turkey
Ukraine National Bank of Ukraine
Mizhregionalny Fondovy Souz
United Arab Emirates Clearing and Depository System,
a department of theDubai Financial Market
Venezuela Banco Central de Venezuela
Zambia XxXX Central Shares Depository Limited
Bank of Zambia
TRANSNATIONAL
Euroclear
Clearstream Banking AG
SCHEDULE C
MARKET INFORMATION
Publication/Type of Information Brief Description
(scheduled frequency)
The Guide to Custody in World Markets An overview of settlement and
safekeeping procedures,
(hardcopy annually and regular custody practices and foreign investor
considerations for the
website updates) markets in which State Street offers custodial
services.
Global Custody Network Review Information relating to Foreign
Sub-Custodians in State
(annually) Street's Global Custody Network. The Review
stands as an integral part of the materials
that State Street provides to its U.S. mutual
fund clients to assist them in complying with
SEC Rule 17f-5. The Review also gives insight
into State Street's market expansion and
Foreign Sub-Custodian selection processes, as
well as the procedures and controls used to
monitor the financial condition and performance
of our Foreign Sub-Custodian banks.
Securities Depository Review Custody risk analyses of the Foreign
Securities Depositories
(annually) presently operating in Network markets.
This publication is an integral part of the
materials that State Street provides to its
U.S. mutual fund clients to meet
informational obligations created by SEC
Rule 17f-7.
Global Legal Survey With respect to each market in which State
Street offers
(annually) custodial services, opinions relating to
whether local law restricts (i) access of a
fund's independent public accountants to books
and records of a Foreign Sub-Custodian or
Foreign Securities System, (ii) a fund's
ability to recover in the event of bankruptcy
or insolvency of a Foreign Sub-Custodian or
Foreign Securities System, (iii) a fund's
ability to recover in the event of a loss by a
Foreign Sub-Custodian or Foreign Securities
System, and (iv) the ability of a foreign
investor to convert cash and cash equivalents
to U.S. dollars.
Subcustodian Agreements Copies of the contracts that State Street has
entered into with
(annually) each Foreign Sub-Custodian that maintains U.S.
mutual fund assets in the markets in which
State Street offers custodial services.
Global Market Bulletin Information on changing settlement and custody
conditions in
(daily or as necessary) markets where State Street offers custodial
services.
Includes changes in market and tax regulations,
depository developments, dematerialization
information, as well as other market changes
that may impact State Street's clients.
Foreign Custody Advisories For those markets where State Street offers
custodial
(as necessary) services that exhibit special risks or
infrastructures impacting
custody, State Street issues market advisories
to highlight
those unique market factors which might impact
our ability to
offer recognized custody service levels.
Material Change Notices Informational letters and accompanying
materials confirming
(presently on a quarterly State Street's foreign custody arrangements,
including a
basis or as otherwise necessary) summary of material changes with Foreign
Sub-Custodians that
have occurred during the previous quarter. The
notices also identify any material changes in
the custodial risks associated with maintaining
assets with Foreign Securities Depositories.
SCHEDULE D - As of August , 2002
GOLDEN OAK(R) GROWTH PORTFOLIO
GOLDEN OAK(R) INTERMEDIATE-TERM INCOME PORTFOLIO
GOLDEN OAK(R) INTERNATIONAL EQUITY FUND
GOLDEN OAK(R) MICHIGAN TAX FREE BOND PORTFOLIO
GOLDEN OAK(R) PRIME OBLIGATION MONEY MARKET PORTFOLIO
GOLDEN OAK(R) SMALL CAP VALUE PORTFOLIO
GOLDEN OAK(R) VALUE PORTFOLIO
EXHIBIT A - Fee Schedule as of June 1, 0000
XXXXX XXXXXX XXXX AND TRUST COMPANY
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Custody Fee Schedule
CITIZENS BANK:
Golden Oak(R) Family of Funds
------------------------------------------------------------------------------
I. DOMESTIC CUSTODY SERVICES
------------------------------------------------------------------------------
A. Base Fee for Domestic Assets
Maintain custody of fund assets. Provide cash availability daily.
Settle portfolio purchases and sales. Report buy and sell fails.
Determine and collect income. Process expense payments. Monitor all
corporate actions. Make cash disbursements and report cash
transactions.
The fee below is an annual charge, billed and payable monthly, based on
average monthly domestic net assets.
.25/100 of 1% (.25 basis points) on all domestic assets
B. Securities Transaction Charges:
Depository Settlements (DTC, PTC, FBE) $ 5.00
Domestic Physical Settlements $15.00
GNMA Principal & Interest Paydown $ 5.00
State Street REPOS No Charge
All other REPOS $ 3.75
Fed wire Fees $ 3.00
Third Party Foreign Exchange No Charge
Foreign Exchange through State Street No Charge
All other trades $15.00
A. Holdings charge
For each issue maintained - monthly charge $2.00
------------------------------------------------------------------------------
II. INTERNATIONAL CUSTODY SERVICES
------------------------------------------------------------------------------
Maintain custody of fund assets. Provide cash availability daily.
Settle portfolio purchases and sales. Report buy and sell fails.
Determine and collect income. Process expense payments. Monitor all
corporate actions. Make cash disbursements and report cash
transactions. Withhold foreign taxes. File foreign tax reclaims.
Report cash transactions in local and base currency.
Global custody service fees are shown on Exhibit # 1.
------------------------------------------------------------------------------
III. OUT OF POCKET EXPENSES & SPECIAL SERVICE FEES
------------------------------------------------------------------------------
A. Worldwide sub-custodian out-of-pocket charges typically included, but
not limited to foreign registration, local taxes, stamp duties, stock
exchange fees, script fees, and other unusual expenses unique to a
country in which Golden OIak Funds have invested. State Street bills
out-of-pocket expenses separately from service fees.
B. Special Services Fees for activities of a non-recurring nature such as
fund consolidations or reorganizations, extraordinary security
shipments and the preparation of special reports will be subject to
negotiation.
C. Domestic out -of- pocket charges typically included, but not limited to
postage, mailing services, telephone line and long distance charges,
remote client hardware, overnight mailing services, record retention
will all be waived.
------------------------------------------------------------------------------
IV. PAYMENT
------------------------------------------------------------------------------
The above fees will be invoiced monthly. Payment is due ten days after
the invoice is mailed to the Fund's offices.
------------------------------------------------------------------------------
V. TERM OF CONTRACT
------------------------------------------------------------------------------
The parties agree that this fee schedule is effective upon commencement
of operations and shall remain in effect for a period of three years.
GOLDEN OAK(R)FAMILY OF FUNDS STATE STREET BANK AND
TRUST COMPANY
BY: /s/ Xxxxx X. Xxxxxxxxx BY: /s/ Xxx X'Xxxxxxx
TITLE: Vice President TITLE: Vice President
DATE: June 1, 2002 DATE: August 19, 2002
------------------------------------------------------------------------------
STATE STREET BANK AND TRUST COMPANY
------------------------------------------------------------------------------
Global Custody Fee Schedule (Exhibit #1)
CITIZENS BANK:
Golden Oak(R) Family of Funds
------------------------------------------------------------------------------
I. GLOBAL CUSTODY SERVICES
------------------------------------------------------------------------------
A. Base Fee for Separately Managed International Fund
$20,000 per annum per fund
B. International Holdings Charge
$120 per holdings per annum
C. International Subcustodian Charges (only if applicable)
-------------------------------------------------------------------------------
Group A Group B Group C Group D Group E Group E
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Charge per $25 $45 $60 $70 $100 $100
transactions
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Holdings * 1.25 3.50 5.25 16.0 45.0 45.0
(basis
points)
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Australia Austria Finland Brazil Argentina Lebanon
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Canada Belgium Indonesia China Baharain Lithunaia
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Cedel Hong Kong Ireland CzechoslovakBangladesh Mauritius
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Denmark NetherlandsLuxembourg Egypt Bermuda Morocco
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Euorclear Norway Malaysia Jamaica Bolivia Oman
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
France Sweden Mexico Korea Botswana Pakistan
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Germany Singapore Philippines Bulgaria Peru
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Italy Thailand Portugal Chile Poland
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Japan Sri Lanka Colombia Romania
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Nambia Taiwan Croatia Russia
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
New Zealand Turkey Cyprus Slovak
Republic
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
South Ecuador Slovenia
Africa
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Spain Ghana Swaziland
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Switzerland Greece Tobago
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
United Hungary Trinidan
Kingdom & Tunisia
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
India Uruguay
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Israel Venezuela
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Ivory Zambia
Coast
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Jordan Zimbabwe
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-------------------------------------------------------------------------------
Kenya
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-------------------------------------------------------------------------------
Latvia
-------------------------------------------------------------------------------
*Based on the month-end net asset value in USD
[GRAPHIC OMITTED]
FUNDS TRANSFER ADDENDUM
OPERATING GUIDELINES
1. Obligation of the Sender: State Street is authorized to promptly debit
Client's account(s) upon the receipt of a payment order in compliance with
the selected Security Procedure chosen for funds transfer and in the amount
of money that State Street has been instructed to transfer. State Street
shall execute payment orders in compliance with the Security Procedure and
with the Client's instructions on the execution date provided that such
payment order is received by the customary deadline for processing such a
request, unless the payment order specifies a later time. All payment orders
and communications received after this time will be deemed to have been
received on the next business day.
2. Security Procedure: The Client acknowledges that the Security Procedure
it has designated on the Selection Form was selected by the Client from
Security Procedures offered by State Street. The Client agrees that the
Security Procedures are reasonable and adequate for its wire transfer
transactions and agrees to be bound by any payment orders, amendments and
cancellations, whether or not authorized, issued in its name and accepted by
State Street after being confirmed by any of the selected Security
Procedures. The Client also agrees to be bound by any other valid and
authorized payment order accepted by State Street. The Client shall restrict
access to confidential information relating to the Security Procedure to
authorized persons as communicated in writing to State Street. The Client
must notify State Street immediately if it has reason to believe unauthorized
persons may have obtained access to such information or of any change in the
Client's authorized personnel. State Street shall verify the authenticity of
all instructions according to the Security Procedure.
3. Account Numbers: State Street shall process all payment orders on the
basis of the account number contained in the payment order. In the event of
a discrepancy between any name indicated on the payment order and the account
number, the account number shall take precedence and govern. Financial
institutions that receive payment orders initiated by State Street at the
instruction of the Client may also process payment orders on the basis of
account numbers, regardless of any name included in the payment order. State
Street will also rely on any financial institution identification numbers
included in any payment order, regardless of any financial institution name
included in the payment order.
4. Rejection: State Street reserves the right to decline to process or
delay the processing of a payment order which (a) is in excess of the
collected balance in the account to be charged at the time of State Street's
receipt of such payment order; (b) if initiating such payment order would
cause State Street, in State Street's sole judgment, to exceed any volume,
aggregate dollar, network, time, credit or similar limits upon wire transfers
which are applicable to State Street; or (c) if State Street, in good faith,
is unable to satisfy itself that the transaction has been properly authorized.
5. Cancellation or Amendment: State Street shall use reasonable efforts to
act on all authorized requests to cancel or amend payment orders received in
compliance with the Security Procedure provided that such requests are
received in a timely manner affording State Street reasonable opportunity to
act. However, State Street assumes no liability if the request for amendment
or cancellation cannot be satisfied.
6. Errors: State Street shall assume no responsibility for failure to
detect any erroneous payment order provided that State Street complies with
the payment order instructions as received and State Street complies with the
Security Procedure. The Security Procedure is established for the purpose of
authenticating payment orders only and not for the detection of errors in
payment orders.
7. Interest and Liability Limits: State Street shall assume no
responsibility for lost interest with respect to the refundable amount of any
unauthorized payment order, unless State Street is notified of the
unauthorized payment order within thirty (30) days of notification by State
Street of the acceptance of such payment order. In no event shall State
Street be liable for special, indirect or consequential damages, even if
advised of the possibility of such damages and even for failure to execute a
payment order.
8. Automated Clearing House ("ACH") Credit Entries/Provisional Payments:
When a Client initiates or receives ACH credit and debit entries pursuant to
these Guidelines and the rules of the National Automated Clearing House
Association and the New England Clearing House Association, State Street will
act as an Originating Depository Financial Institution and/or Receiving
Depository Institution, as the case may be, with respect to such entries.
Credits given by State Street with respect to an ACH credit entry are
provisional until State Street receives final settlement for such entry from
the Federal Reserve Bank. If State Street does not receive such final
settlement, the Client agrees that State Street shall receive a refund of the
amount credited to the Client in connection with such entry, and the party
making payment to the Client via such entry shall not be deemed to have paid
the amount of the entry.
9. Confirmation Statements: Confirmation of State Street's execution of
payment orders shall ordinarily be provided within 24 hours. Notice may be
delivered through State Street's proprietary information systems, such as,
but not limited to Horizon and GlobalQuest(R), account statements, advices, or
by facsimile or callback. The Client must report any objections to the
execution of a payment order within 30 days.
10. Liability on Foreign Accounts: State Street shall not be required
to repay any deposit made at a non-U.S. branch of State Street, or any
deposit made with State Street and denominated in a non-U.S. dollar
currency, if repayment of such deposit or the use of assets denominated in
the non-U.S. dollar currency is prevented, prohibited or otherwise blocked
due to: (a) an act of war, insurrection or civil strife; (b) any action
by a non-U.S. government or instrumentality or authority asserting
governmental, military or police power of any kind, whether such authority
be recognized as a defacto or a dejure government, or by any entity,
political or revolutionary movement or otherwise that usurps, supervenes
or otherwise materially impairs the normal operation of civil authority;
or(c) the closure of a non-U.S. branch of State Street in order to
prevent, in the reasonable judgment of State Street, harm to the employees
or property of State Street. The obligation to repay any such deposit
shall not be transferred to and may not be enforced against any other
branch of State Street.
The foregoing provisions constitute the disclosure required by Massachusetts
General Laws, Chapter 167D, Section 36.
While State Street is not obligated to repay any deposit made at a non-U.S.
branch or any deposit denominated in a non-U.S. currency during the period in
which its repayment has been prevented, prohibited or otherwise blocked,
State Street will repay such deposit when and if all circumstances
preventing, prohibiting or otherwise blocking repayment cease to exist.
11. MISCELLANEOUS: State Street and the Client agree to cooperate to
attempt to recover any funds erroneously paid to the wrong party or
parties, regardless of any fault of State Street or the Client, but the
party responsible for the erroneous payment shall bear all costs and
expenses incurred in trying to effect such recovery. These Guidelines may
not be amended except by a written agreement signed by the parties.
Security Procedure(s) Selection Form
Please select one or more of the funds transfer security procedures indicated
below.
SWIFT
SWIFT (Society for Worldwide Interbank Financial Telecommunication) is a
cooperative society owned and operated by member financial institutions that
provides telecommunication services for its membership. Participation is
limited to securities brokers and dealers, clearing and depository
institutions, recognized exchanges for securities, and investment management
institutions. SWIFT provides a number of security features through encryption
and authentication to protect against unauthorized access, loss or wrong
delivery of messages, transmission errors, loss of confidentiality and
fraudulent changes to messages. SWIFT is considered to be one of the most
secure and efficient networks for the delivery of funds transfer instructions.
Selection of this security procedure would be most appropriate for existing
SWIFT members.
Standing Instructions
Standing Instructions may be used where funds are transferred to a broker on
the Client's established list of brokers with which it engages in foreign
exchange transactions. Only the date, the currency and the currency amount
are variable. In order to establish this procedure, State Street will send to
the Client a list of the brokers that State Street has determined are used by
the Client. The Client will confirm the list in writing, and State Street
will verify the written confirmation by telephone. Standing Instructions will
be subject to a mutually agreed upon limit. If the payment order exceeds the
established limit, the Standing Instruction will be confirmed by telephone
prior to execution.
Remote Batch Transmission
Wire transfer instructions are delivered via Computer-to-Computer (CPU-CPU)
data communications between the Client and State Street. Security procedures
include encryption and or the use of a test key by those individuals
authorized as Automated Batch Verifiers.
Clients selecting this option should have an existing facility for completing
CPU-CPU transmissions. This delivery mechanism is typically used for
high-volume business.
Global Horizon Interchangesm Funds Transfer Service
Global Horizon Interchange Funds Transfer Service (FTS) is a State Street
proprietary microcomputer-based wire initiation system. FTS enables Clients
to electronically transmit authenticated Fedwire, CHIPS or internal book
transfer instructions to State Street.
This delivery mechanism is most appropriate for Clients with a low-to-medium
number of transactions (5-75 per day), allowing Clients to enter, batch, and
review wire transfer instructions on their PC prior to release to State
Street.
Telephone Confirmation (Callback)
Telephone confirmation will be used to verify all non-repetitive funds
transfer instructions received via untested facsimile or phone. This
procedure requires Clients to designate individuals as authorized initiators
and authorized verifiers. State Street will verify that the instruction
contains the signature of an authorized person and prior to execution, will
contact someone other than the originator at the Client's location to
authenticate the instruction.
Selection of this alternative is appropriate for Clients who do not have the
capability to use other security procedures.
Repetitive Wires
For situations where funds are transferred periodically (minimum of one
instruction per calendar quarter) from an existing authorized account to the
same payee (destination bank and account number) and only the date and
currency amount are variable, a repetitive wire may be implemented.
Repetitive wires will be subject to a mutually agreed upon limit. If the
payment order exceeds the established limit, the instruction will be
confirmed by telephone prior to execution. Telephone confirmation is used to
establish this process. Repetitive wire instructions must be reconfirmed
annually.
This alternative is recommended whenever funds are frequently transferred
between the same two accounts.
Transfers Initiated by Facsimile
The Client faxes wire transfer instructions directly to State Street Mutual
Fund Services. Standard security procedure requires the use of a random
number test key for all transfers. Every six months the Client receives test
key logs from State Street. The test key contains alpha-numeric characters,
which the Client puts on each document faxed to State Street. This procedure
ensures all wire instructions received via fax are authorized by the Client.
We provide this option for Clients who wish to batch wire instructions and
transmit these as a group to State Street Mutual Fund Services once or
several times a day.
Automated Clearing House (ACH)
State Street receives an automated transmission or a magnetic tape from a
Client for the initiation of payment (credit) or collection (debit)
transactions through the ACH network. The transactions contained on each
transmission or tape must be authenticated by the Client. Clients using ACH
must select one or more of the following delivery options:
Global Horizon Interchange Automated Clearing House Service
Transactions are created on a microcomputer, assembled into batches and
delivered to State Street via fully authenticated electronic
transmissions in standard NACHA formats.
Transmission from Client PC to State Street Mainframe with Telephone Callback
Transmission from Client Mainframe to State Street Mainframe with Telephone
Callback
Transmission from DST Systems to State Street Mainframe with Encryption
Magnetic Tape Delivered to State Street with Telephone Callback
State Street is hereby instructed to accept funds transfer instructions only
via the delivery methods and security procedures indicated. The selected
delivery methods and security procedure(s) will be effective
for payment orders initiated by our organization.
Key Contact Information
Whom shall we contact to implement your selection(s)?
Client operations contact Alternate Contact
Name Name
Address Address
City/State/Zip Code City/State/Zip Code
Telephone Number Telephone Number
Facsimile Number Facsimile Number
SWIFT Number
Telex Number
INSTRUCTION(S)
TELEPHONE CONFIRMATION
Fund Golden Oak(R)Family of Funds
Investment Adviser
Authorized Initiators
Please Type or Print
Please provide a listing of Fund officers or other individuals who are
currently authorized to initiate wire transfer instructions to State Street:
NAME TITLE (Specify whether position SPECIMEN
SIGNATURE
is with Fund or Investment
Adviser)
Authorized Verifiers
Please Type or Print
Please provide a listing of Fund officers or other individuals who will be
CALLED BACK to verify the initiation of repetitive wires of $10 million or
more and all non-repetitive wire instructions:
NAME CALLBACK PHONE NUMBER DOLLAR LIMITATION
(IF ANY)
REMOTE ACCESS SERVICES ADDENDUM TO CUSTODIAN AGREEMENT
ADDENDUM to that certain Custodian Agreement dated as of June 1, 2002
(the "Custodian Agreement") between Golden Oak(R) Family of Funds (the
"Customer") and State Street Bank and Trust Company, including its
subsidiaries and affiliates ("State Street").
State Street has developed and utilizes proprietary accounting and
other systems in conjunction with the custodian services which State Street
provides to the Customer. In this regard, State Street maintains certain
information in databases under its control and ownership which it makes
available to its customers (the "Remote Access Services").
The Services
State Street agrees to provide the Customer, and its designated investment
advisors, consultants or other third parties authorized by State Street
("Authorized Designees") with access to In~SightSM as described in Exhibit A
or such other systems as may be offered from time to time (the "System") on a
remote basis.
Security Procedures
The Customer agrees to comply, and to cause its Authorized Designees to
comply, with remote access operating standards and procedures and with user
identification or other password control requirements and other security
procedures as may be issued from time to time by State Street for use of the
System and access to the Remote Access Services. The Customer agrees to
advise State Street immediately in the event that it learns or has reason to
believe that any person to whom it has given access to the System or the
Remote Access Services has violated or intends to violate the terms of this
Addendum and the Customer will cooperate with State Street in seeking
injunctive or other equitable relief. The Customer agrees to discontinue use
of the System and Remote Access Services, if requested, for any security
reasons cited by State Street.
Fees
Fees and charges for the use of the System and the Remote Access Services and
related payment terms shall be as set forth in the Custody Fee Schedule in
effect from time to time between the parties (the "Fee Schedule"). The
Customer shall be responsible for any tariffs, duties or taxes imposed or
levied by any government or governmental agency by reason of the transactions
contemplated by this Addendum, including, without limitation, federal, state
and local taxes, use, value added and personal property taxes (other than
income, franchise or similar taxes which may be imposed or assessed against
State Street). Any claimed exemption from such tariffs, duties or taxes
shall be supported by proper documentary evidence delivered to State Street.
Proprietary Information/Injunctive Relief
The System and Remote Access Services described herein and the databases,
computer programs, screen formats, report formats, interactive design
techniques, formulae, processes, systems, software, knowhow, algorithms,
programs, training aids, printed materials, methods, books, records, files,
documentation and other information made available to the Customer by State
Street as part of the Remote Access Services and through the use of the
System and all copyrights, patents, trade secrets and other proprietary
rights of State Street related thereto are the exclusive, valuable and
confidential property of State Street and its relevant licensors (the
"Proprietary Information"). The Customer agrees on behalf of itself and its
Authorized Designees to keep the Proprietary Information confidential and to
limit access to its employees and Authorized Designees (under a similar duty
of confidentiality) who require access to the System for the purposes
intended. The foregoing shall not apply to Proprietary Information in the
public domain or required by law to be made public.
The Customer agrees to use the Remote Access Services only in connection with
the proper purposes of this Addendum. The Customer will not, and will cause
its employees and Authorized Designees not to, (i) permit any third party to
use the System or the Remote Access Services, (ii) sell, rent, license or
otherwise use the System or the Remote Access Services in the operation of a
service bureau or for any purpose other than as expressly authorized under
this Addendum, (iii) use the System or the Remote Access Services for any
fund, trust or other investment vehicle without the prior written consent of
State Street, or (iv) allow or cause any information transmitted from State
Street's databases, including data from third party sources, available
through use of the System or the Remote Access Services, to be published,
redistributed or retransmitted for other than use for or on behalf of the
Customer, as State Street's customer.
The Customer agrees that neither it nor its Authorized Designees will modify
the System in any way; enhance or otherwise create derivative works based
upon the System; nor will the Customer or Customer's Authorized Designees
reverse engineer, decompile or otherwise attempt to secure the source code
for all or any part of the System.
The Customer acknowledges that the disclosure of any Proprietary Information,
or of any information which at law or equity ought to remain confidential,
will immediately give rise to continuing irreparable injury to State Street
inadequately compensable in damages at law and that State Street shall be
entitled to obtain immediate injunctive relief against the breach or
threatened breach of any of the foregoing undertakings, in addition to any
other legal remedies which may be available.
Limited Warranties
State Street represents and warrants that it is the owner of and has the
right to grant access to the System and to provide the Remote Access Services
contemplated herein. Because of the nature of computer information
technology, including but not limited to the use of the Internet, and the
necessity of relying upon third party sources, and data and pricing
information obtained from third parties, the System and Remote Access
Services are provided "AS IS", and the Customer and its Authorized Designees
shall be solely responsible for the investment decisions, results obtained,
regulatory reports and statements produced using the Remote Access Services.
State Street and its relevant licensors will not be liable to the Customer or
its Authorized Designees for any direct or indirect, special, incidental,
punitive or consequential damages arising out of or in any way connected with
the System or the Remote Access Services, nor shall either party be
responsible for delays or nonperformance under this Addendum arising out of
any cause or event beyond such party's control.
State Street will take reasonable steps to ensure that its products (and
those of its third-party suppliers) reflect the available state of the art
technology to offer products that are Year 2000 compliant, including, but
not limited to, century recognition of dates, calculations that correctly
compute same century and multi century formulas and date values, and
interface values that reflect the date issues arising between now and the
next one-hundred years, and if any changes are required, State Street will
make the changes to its products at no cost to you and in a commercially
reasonable time frame and will require third-party suppliers to do
likewise. The Customer will do likewise for its systems.
EXCEPT AS EXPRESSLY SET FORTH IN THIS ADDENDUM, STATE STREET, FOR ITSELF AND
ITS RELEVANT LICENSORS, EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES CONCERNING
THE SYSTEM AND THE SERVICES TO BE RENDERED HEREUNDER, WHETHER EXPRESS OR
IMPLIED INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTIBILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
Infringement
State Street will defend or, at our option, settle any claim or action
brought against the Customer to the extent that it is based upon an assertion
that access to the System or use of the Remote Access Services by the
Customer under this Addendum constitutes direct infringement of any patent or
copyright or misappropriation of a trade secret, provided that the Customer
notifies State Street promptly in writing of any such claim or proceeding and
cooperates with State Street in the defense of such claim or proceeding.
Should the System or the Remote Access Services or any part thereof become,
or in State Street's opinion be likely to become, the subject of a claim of
infringement or the like under any applicable patent or copyright or trade
secret laws, State Street shall have the right, at State Street's sole
option, to (i) procure for the Customer the right to continue using the
System or the Remote Access Services, (ii) replace or modify the System or
the Remote Access Services so that the System or the Remote Access Services
becomes noninfringing, or (iii) terminate this Addendum without further
obligation.
Termination
Either party to the Custodian Agreement may terminate this Addendum (i) for
any reason by giving the other party at least one-hundred and eighty (180)
days' prior written notice in the case of notice of termination by State
Street to the Customer or thirty (30) days' notice in the case of notice from
the Customer to State Street of termination, or (ii) immediately for failure
of the other party to comply with any material term and condition of the
Addendum by giving the other party written notice of termination. This
Addendum shall in any event terminate within ninety (90) days after the
termination of the Custodian Agreement. In the event of termination, the
Customer will return to State Street all copies of documentation and other
confidential information in its possession or in the possession of its
Authorized Designees. The foregoing provisions with respect to
confidentiality and infringement will survive termination for a period of
three (3) years.
Miscellaneous
This Addendum and the exhibits hereto constitute the entire understanding of
the parties to the Custodian Agreement with respect to access to the System
and the Remote Access Services. This Addendum cannot be modified or altered
except in a writing duly executed by each of State Street and the Customer
and shall be governed by and construed in accordance with the laws of the
Commonwealth of Massachusetts.
By its execution of the Custodian Agreement, the Customer accepts
responsibility for its and its Authorized Designees' compliance with the
terms of this Addendum.
EXHIBIT A
to
REMOTE ACCESS SERVICES ADDENDUM TO CUSTODIAN AGREEMENT
IN~SIGHTSM
System Product Description
In~SightSM provides bilateral information delivery, interoperability, and
on-line access to State Street. In~SightSM allows users a single point of
entry into State Street's diverse systems and applications. Reports and data
from systems such as Investment Policy MonitorSM, Multicurrency HorizonSM,
Securities Lending, Performance & Analytics, and Electronic Trade Delivery
can be accessed through In~SightSM. This Internet-enabled application is
designed to run from a Web browser and perform across low-speed data lines or
corporate high-speed backbones. In~SightSM also offers users a flexible
toolset, including an ad-hoc query function, a custom graphics package, a
report designer, and a scheduling capability. Data and reports offered
through In~SightSM will continue to increase in direct proportion with the
customer roll out, as it is viewed as the information delivery system will
grow with State Street's customers.
