Exhibit (g)(i) under Form N-1A
Exhibit 10 under Item 601/Reg. S-K
CUSTODIAN AGREEMENT
This Agreement between MTB GROUP OF FUNDS a statutory trust organized
and existing under the laws of Delaware (the "Fund"), with its principal
place of business at 0000 Xxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx
00000-0000, and STATE STREET BANK and TRUST COMPANY, a Massachusetts trust
company with its principal place of business at 000 Xxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000 (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 Appendix A (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
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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 (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 Fund will be
deemed custody for purposes hereof.
Upon receipt of "Proper Instructions" (as such term is defined in Section 7
hereof), the Custodian shall on behalf of the applicable Portfolio(s) from
time to time employ one or more sub-custodians located in the United States,
but only in accordance with an applicable vote by the Board of Trustees 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
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BY THE CUSTODIAN IN THE UNITED STATES
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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 securities which are maintained pursuant
to Section 2.8 in a clearing agency which acts as a securities depository or
in a book-entry system authorized by the U.S. Department of the Treasury
(each, a "U.S. Securities System") and (b) the Underlying Shares owned by the
fund which are maintained pursuant to Section 2.13 in an account with State
Street Bank and Trust Company or such other entity 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 in connection with any loans of securities
made by the Fund to a third party lending agent, or the lending
agent's custodian, in accordance with Proper Instructions (which
may not provide for the receipt by the Custodian of collateral
therefor) agreed upon from time t time by the Custodian and the
Fund on behalf of the Portfolio;
12) For delivery as security in connection with any borrowing
by the Fund on behalf of the Portfolio requiring a pledge of
assets by the Fund on behalf of the Portfolio, but only against
receipt of amounts borrowed;
13) For delivery in accordance with the provisions of any
agreement among the Fund on behalf of the Portfolio, the
Custodian and a broker-dealer registered under the Securities
Exchange Act of 1934 (the "Exchange Act") and a member of The
National Association of Securities Dealers, Inc. ("NASD"),
relating to compliance with the rules of The Options Clearing
Corporation and of any registered national securities exchange,
or of any similar organization or organizations, regarding escrow
or other arrangements in connection with transactions by the
Portfolio of the Fund;
14) For delivery in accordance with the provisions of any
agreement among the Fund on behalf of the Portfolio, the
Custodian, and a futures commission merchant registered under the
Commodity Exchange Act, relating to compliance with the rules of
the Commodity Futures Trading Commission ("CFTC") and/or any
contract market, or any similar organization or organizations,
regarding account deposits in connection with transactions by the
Portfolio of the Fund;
15) Upon 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
2.13 hereof;
16) For delivery as initial or variation margin in connection
with futures or options on futures contracts entered into by the
Fund on behalf of the Portfolios; and
17) 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 Investment Company Act of 1940, as amended (the "1940 Act"). Funds held
by the Custodian for a Portfolio may be deposited by it to its credit as
Custodian in the banking department of the Custodian or in such other banks
or trust companies 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 6 hereof;
4) For the payment of any expense or liability incurred by the
Portfolio, including but not limited to the following payments
for the account of the Portfolio: interest, taxes, management,
accounting, transfer agent and legal fees, and operating expenses
of the Fund whether or not such expenses are to be in whole or
part capitalized or treated as deferred expenses;
5) For the payment of any dividends on Shares declared
pursuant to the governing documents of the Fund;
6) For payment of the amount of dividends received in respect
of securities sold short;
7) For payment as initial or variation margin in connection
with futures or options on futures contracts entered into by the
Fund on behalf of the Portfolios;
8) For delivery to one or more co-custodians (each, a "Repo
Custodian") appointed by the Fund on behalf of a Portfolio and
communicated to the Custodian by Proper Instructions, including
Schedule D (as many be amended from time to time) attached to
this Agreement, duly executed by two authorized officers of the
Fund, for the purpose of engaging in repurchase agreement
transactions, which delivery may be made without contemporaneous
receipt by the Custodian of assets in exchange therefor, and upon
which delivery to such Repo Custodian in accordance with Proper
Instructions from the Fund on behalf of the a Portfolio, the
Custodian shall have no further responsibility or obligation to
the Fund as a custodian for the Portfolio with respect to the
securities so delivered (each such delivery, a "Free Trade"),
provided that, in preparing reports of monies received or paid
out of the Portfolio or of assets comprising the Portfolio, the
Custodian shall be entitled to rely upon information received
from time to time from the Repo Custodian and shall not be
responsible for the accuracy or completeness of such information
included in the Custodian's reports until such assets are
received by the Custodian; and
9) For any other proper purpose, but only upon receipt of
Proper Instructions from the Fund on behalf of the Portfolio
specifying the amount of such payment, the specific purposes for
which the transaction is requested, and naming the person or
persons to whom such payment is to be made.
SECTION 2.7 APPOINTMENT OF AGENTS. The Custodian may at any time or
times in its discretion appoint (and may at any time remove) any other bank
or trust company which is itself qualified under the 1940 Act to act as a
custodian, as its agent to carry out such of the provisions of this Section 2
as the Custodian may from time to time direct; provided, however, that the
appointment of any agent shall not relieve the Custodian of its
responsibilities or liabilities hereunder. The Underlying Transfer Agent
shall not be deemed an agent or subcustodian of the Custodian for purposes of
this Section 2.7 or any other provision of this Agreement.
SECTION 2.8 DEPOSIT OF FUND ASSETS IN U.S. SECURITIES SYSTEMS. The
Custodian may deposit and/or maintain securities owned by a Portfolio in a
U.S. Securities System in compliance with the conditions of Rule 17f-4 of the
1940 Act, as amended from time to time.
SECTION 2.9 SEGREGATED ACCOUNT. The Custodian shall upon receipt of
Proper Instructions on behalf of each applicable Portfolio establish and
maintain a segregated account or accounts for and on behalf of each such
Portfolio, into which account or accounts may be transferred cash and/or
securities, including securities maintained in an account by the Custodian
pursuant to Section 2.8 hereof, (i) in accordance with the provisions of any
agreement among the Fund on behalf of the Portfolio, the Custodian and a
broker-dealer registered under the Exchange Act and a member of the NASD (or
any futures commission merchant registered under the Commodity Exchange Act),
relating to compliance with the rules of The Options Clearing Corporation and
of any registered national securities exchange (or the CFTC or any registered
contract market), or of any similar organization or organizations, regarding
escrow or other arrangements in connection with transactions by the
Portfolio, (ii) for purposes of segregating U.S. cash, U.S. Government
securities, or other U.S. securities in connection with swaps arrangements in
connection with transactions by the Portfolio, options purchased, sold or
written by the Portfolio or commodity futures contracts or options thereon
purchased or sold by the Portfolio, (iii) for the purposes of compliance by
the Portfolio with the procedures required by Investment Company Act Release
No. 10666, or any subsequent release of the U.S. Securities and Exchange
Commission (the "SEC"), or interpretative opinion of the staff of the SEC,
relating to the maintenance of segregated accounts by registered investment
companies, and (iv) for any other purpose upon receipt of Proper Instructions
from the Fund on behalf of the applicable Portfolio.
SECTION 2.10 OWNERSHIP CERTIFICATES FOR TAX PURPOSES. The
Custodian shall execute ownership and other certificates and affidavits for
all federal and state tax purposes in connection with receipt of income or
other payments with respect to domestic securities of each Portfolio held by
it and in connection with transfers of securities.
SECTION 2.11 PROXIES. The Custodian shall, with respect to the
domestic securities held hereunder, cause to be promptly executed by the
registered holder of such securities, if the securities are registered
otherwise than in the name of the Portfolio or a nominee of the Portfolio,
all proxies, without indication of the manner in which such proxies are to be
voted, and shall promptly deliver to the Portfolio such proxies, all proxy
soliciting materials and all notices relating to such securities.
SECTION 2.12 COMMUNICATIONS RELATING TO PORTFOLIO SECURITIES.
Subject to the provisions of Section 2.3, the Custodian shall transmit
promptly to the Fund for each Portfolio all written information (including,
without limitation, pendency of calls and maturities of domestic securities
and expirations of rights in connection therewith and notices of exercise of
call and put options written by the Fund on behalf of the Portfolio and the
maturity of futures contracts purchased or sold by the Portfolio) received by
the Custodian from issuers of the securities being held for the Portfolio.
With respect to tender or exchange offers, the Custodian shall transmit
promptly to the Portfolio all written information received by the Custodian
from issuers of the securities whose tender or exchange is sought and from
the party (or its agents) making the tender or exchange offer. If the
Portfolio desires to take action with respect to any tender offer, exchange
offer or any other similar transaction, the Portfolio shall notify the
Custodian at least three business days prior to the date on which the
Custodian is to take such action.
SECTION 2.13 DEPOSIT OF FUND ASSETS WITH THE UNDERLYING TRANSFER
AGENT. Underlying shares shall be deposited and/or maintained in an account
or accounts maintained with the Underlying Transfer Agent. The Underlying
Transfer Agent shall be deemed to be acting as if it is a "securities
depository" for purposes of Rule 17f-4 under the 1940 Act. The Fund hereby
directs the Custodian to deposit and/or maintain such securities with the
Underlying Transfer Agent, subject to the following provisions:
1) The Custodian shall keep Underlying Shares owned by the Fund 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 Fund.
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 Fund;
3) The Custodian shall pay for Underlying Shares purchased for the account
of a Fund upon (i) receipt of advice from the Fund's investment
manager that such Underlying Shares have been purchased and will be
transferred to the account of the Custodian, on behalf of the Fund,
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 Fund. 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 Fund (i) upon
receipt of an advice from the Fund's investment manager that such
securities have been redeemed and that payment for such securities
will be transferred to the Custodian and (ii) the making of an entry
on the records to reflect such transfer and payment for the account
of the Fund. 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 Fund's investment manager of purchases and
sales of Underlying Shares for the account of the Fund shall
identify the Fund, be maintained for the Fund by the Custodian, and
be provided to the investment manager at its request;
4) The Custodian shall not be liable to the Fund for any loss or damage to
the Fund resulting from maintenance of Underlying Shares with
Underlying Transfer Agent except for losses resulting directly from
the negligence, misfeasance or misconduct of the Custodian or any of
its agents or of any of its or their employees.
SECTION 3. PROVISIONS RELATING TO RULES 17F-5 AND 17F-7 UNDER THE 1940 ACT
SECTION 3.1. DEFINITIONS. As used throughout this Agreement, the
capitalized terms set forth below shall have the indicated meanings:
"Country Risk" means all factors reasonably related to the systemic risk of
holding Foreign Assets in a particular country including, but not limited to,
such country's political environment, economic and financial infrastructure
(including any Eligible Securities Depository operating in the country),
prevailing or developing custody and settlement practices, and laws and
regulations applicable to the safekeeping and recovery of Foreign Assets held
in custody in that country.
"Eligible Foreign Custodian" has the meaning set forth in section (a)(1) of
Rule 17f-5, including a majority-owned or indirect subsidiary of a U.S. Bank
(as defined in Rule 17f-5), a bank holding company meeting the requirements
of an Eligible Foreign Custodian (as set forth in Rule 17f-5 or by other
appropriate action of the SEC), or a foreign branch of a Bank (as defined in
Section 2(a)(5) of the 0000 Xxx) meeting the requirements of a custodian
under Section 17(f) of the 1940 Act; the term does not include any Eligible
Securities Depository.
"Eligible Securities Depository" has the meaning set forth in section (b)(1)
of Rule 17f-7.
"Foreign Assets" means any of the Portfolios' investments (including foreign
currencies) for which the primary market is outside the United States and
such cash and cash equivalents as are reasonably necessary to effect the
Portfolios' transactions in such investments.
"Foreign Custody Manager" has the meaning set forth in section (a)(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.
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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:
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(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 4. DUTIES OF THE CUSTODIAN WITH RESPECT TO PROPERTY OF THE
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PORTFOLIOS HELD OUTSIDE THE UNITED STATES
SECTION 4.1 DEFINITIONS. As used throughout this Agreement, the
capitalized terms set forth below shall have the indicated meanings:
"Foreign Securities System" means an Eligible Securities Depository listed on
Schedule B hereto.
"Foreign Sub-Custodian" means a foreign banking institution serving as an
Eligible Foreign Custodian.
SECTION 4.2. HOLDING SECURITIES. The Custodian shall identify on
its books as belonging to the Portfolios the foreign securities held by each
Foreign Sub-Custodian or Foreign Securities System. The Custodian may hold
foreign securities for all of its customers, including the Portfolios, with
any Foreign Sub-Custodian in an account that is identified as belonging to
the Custodian for the benefit of its customers, provided however, that (i)
the records of the Custodian with respect to foreign securities of the
Portfolios which are maintained in such account shall identify those
securities as belonging to the Portfolios and (ii), to the extent permitted
and customary in the market in which the account is maintained, the Custodian
shall require that securities so held by the Foreign Sub-Custodian be held
separately from any assets of such Foreign Sub-Custodian or of other
customers of such Foreign Sub-Custodian.
SECTION 4.3. FOREIGN SECURITIES SYSTEMS. Foreign securities shall
be maintained in a Foreign Securities System in a designated country through
arrangements implemented by the Custodian or a Foreign Sub-Custodian, as
applicable, in such country.
SECTION 4.4. TRANSACTIONS IN FOREIGN CUSTODY ACCOUNT.
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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) for delivery as initial margin and variation margin in connection
with futures or options on futures contracts entered into by the
Fund on behalf of the Portfolio;
(xi) in connection with the lending of foreign securities; and
(xii) for any other purpose, but only upon receipt of Proper
Instructions specifying the foreign securities to be delivered
and naming the person or persons to whom delivery of such
securities shall be made.
4.4.2. PAYMENT OF PORTFOLIO MONIES. Upon receipt of Proper
Instructions, which may be continuing instructions when deemed appropriate by
the parties, the Custodian shall pay out, or direct the respective Foreign
Sub-Custodian or the respective Foreign Securities System to pay out, monies
of a Portfolio in the following cases only:
(i) upon the purchase of foreign securities for the Portfolio, unless
otherwise directed by Proper Instructions, by (A) delivering
money to the seller thereof or to a dealer therefor (or an agent
for such seller or dealer) against expectation of receiving later
delivery of such foreign securities; or (B) in the case of a
purchase effected through a Foreign Securities System, in
accordance with the rules governing the operation of such Foreign
Securities System;
(ii) in connection with the conversion, exchange or surrender of
foreign securities of the Portfolio;
(iii) for the payment of any expense or liability of the Portfolio,
including but not limited to the following payments: interest,
taxes, investment advisory fees, transfer agency fees, fees under
this 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) for delivery as initial margin and variation margin in connection
with futures or options on futures contracts entered into by the
Fund on behalf of the Portfolio;
(vi) for payment of part or all of the dividends received in respect
of securities sold short;
(vii) in connection with the borrowing or lending of foreign
securities; and
(viii) For delivery to one or more co-custodians (each, a "Repo
Custodian") appointed by the Fund on behalf of a Portfolio and
communicated to the Custodian by Proper Instructions, including
Schedule D (as many be amended from time to time) attached to
this Agreement, duly executed by two authorized officers of the
Fund, for the purpose of engaging in repurchase agreement
transactions, which delivery may be made without contemporaneous
receipt by the Custodian of assets in exchange therefor, and upon
which delivery to such Repo Custodian in accordance with Proper
Instructions from the Fund on behalf of the a Portfolio, the
Custodian shall have no further responsibility or obligation to
the Fund as a custodian for the Portfolio with respect to the
securities so delivered (each such delivery, a "Free Trade"),
provided that, in preparing reports of monies received or paid
out of the Portfolio or of assets comprising the Portfolio, the
Custodian shall be entitled to rely upon information received
from time to time from the Repo Custodian and shall not be
responsible for the accuracy or completeness of such information
included in the Custodian's reports until such assets are
received by the Custodian; and
(ix) for any other purpose, but only upon receipt of Proper
Instructions specifying the amount of such payment and naming the
person or persons to whom such payment is to be made.
4.4.3. MARKET CONDITIONS. Notwithstanding any provision of
this Agreement to the contrary, settlement and payment for Foreign Assets
received for the account of the Portfolios and delivery of Foreign Assets
maintained for the account of the Portfolios may be effected in accordance
with the customary established securities trading or processing practices and
procedures in the country or market in which the transaction occurs,
including, without limitation, delivering Foreign Assets to the purchaser
thereof or to a dealer therefor (or an agent for such purchaser or dealer)
with the expectation of receiving later payment for such Foreign Assets from
such purchaser or dealer.
The Custodian shall provide to the Board the information with respect to
custody and settlement practices in countries in which the Custodian employs
a Foreign Sub-Custodian, described on Schedule C hereto at the time or times
set forth on such Schedule. The Custodian may revise Schedule C from time to
time, provided that no such revision shall result in the Board being provided
with substantively less information than had been previously provided
hereunder.
SECTION 4.5. REGISTRATION OF FOREIGN SECURITIES. The foreign
securities maintained in the custody of a Foreign Sub-Custodian (other than
bearer securities) shall be registered in the name of the applicable
Portfolio or in the name of the Custodian or in the name of any Foreign
Sub-Custodian or in the name of any nominee of the foregoing, and the Fund on
behalf of such Portfolio agrees to hold any such nominee harmless from any
liability as a holder of record of such foreign securities. The Custodian or
a Foreign Sub-Custodian shall not be obligated to accept securities on behalf
of a Portfolio under the terms of this 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 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. 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. LOAN SERVICING PROVISIONS
SECTION 5.1 GENERAL. The following provisions shall apply with respect
to investments, property or assets in the nature of loans, or interests or
participations in loans, including without limitation interests in syndicated
bank loans and bank loan participations, whether in the U.S. or outside the
U.S. (collectively, "Loans") entered into by the Fund or on behalf of one or
more of its Portfolios (referred to in this Section 5 as the "Fund").
SECTION 5.2 SAFEKEEPING. Instruments, certificates, agreements and/or
other documents which the Custodian may receive with respect to Loans, if any
(collectively, "Financial Documents"), from time to time, shall be held by
the Custodian at its offices in Boston, Massachusetts.
SECTION 5.3 DUTIES OF THE CUSTODIAN. The Custodian shall accept such
Financing Documents, if any, with respect to Loans as may be delivered to it
from time to time by the Fund. The Custodian shall be under no obligation to
examine the contents or determine the sufficiency of any such Financing
Documents or to provide any certification with respect thereto, whether
received by the Custodian as original documents, photocopies, by facsimile or
otherwise. Without limiting the foregoing, the Custodian is under no duty to
examine any such Financing Documents to determine whether necessary steps
have been taken or requirements met with respect to the assignment or
transfer of the related Loan or applicable interest or participation in such
Loan. The Custodian shall be entitled to assume the genuineness, sufficiency
and completeness of any Financing Documents received, and the genuineness and
due authority of any signature appearing on such documents. Notwithstanding
any term of this Agreement to the contrary, with respect to any Loans, (i)
the Custodian shall be under no obligation to determine, and shall have no
liability for, the sufficiency of, or to require delivery of, any instrument,
document or agreement constituting, evidencing or representing such Loan,
other than to receive such Financing Document, if any, as may be delivered or
caused to be delivered to it by the Fund (or its investment manager acting on
its behalf), (ii) without limiting the generality of the foregoing, delivery
of any such Loan (including without limitation, for purposes of Section 2.6
above) may be made to the Custodian by, and may be represented solely by,
delivery to the Custodian of a facsimile or photocopy of an assignment
agreement (as "Assignment Agreement") or a confirmation or certification from
the Fund (or the investment manager) to the effect that it has acquired such
Loan and/or has received or will receive, and will deliver to the Custodian,
appropriate Financing Documents constituting, evidencing or representing such
Loan (such confirmation or certification, together with any Assignment
Agreement, collectively, an "Assignment Agreement or Confirmation"), in any
case without delivery of any promissory note, participation certificate or
similar instrument (collectively, an "Instrument"), (iii) if an original
Instrument shall be or shall become available with respect to any such Loan,
it shall be the sole responsibility of the Fund (or the investment manager
acting on its behalf) to make or cause delivery thereof to the Custodian, and
the Custodian shall be under no obligation at any time or times to determine
whether any such original Instrument has been issued or made available with
respect to such Loan, and shall not be under any obligation to compel
compliance by the Fund to make or cause delivery of such Instrument to the
Custodian, and (iv) any reference to Financing Documents appearing in this
Section 4 shall be deemed to include, without limitation, any such Instrument
and/or Assignment Agreement or Confirmation.
If payments with respect to a Loan ("Loan Payment") are not received by the
Custodian on the date on which they are due, as reflected in the Payment
Schedule (as such term is defined in Section 5.4 below) of the Loan ("Payment
Date"), or in the case of interest payments, not received either on a
scheduled interest payable date, as reported to the Custodian by the Fund (or
the investment manager acting on its behalf) for the Loan (the "Interest
Payable Date"), or in the amount of their accrued interest payable, the
Custodian shall promptly, but in no event later than one business day after
the Payment Date or the Interest Payable date, give telephonic notice to the
party obligated under the Financing Documents to make such Loan Payment (the
"Obligor") of its failure to make timely payment, and (2) if such payment is
not received within three business days of its due date, shall notify the
Fund (or the investment manager on its behalf) of such Obligor's failure to
make the Loan Payment. The Custodian shall have no responsibility with
respect to the collection of Loan Payments which are past due, other than the
duty to notify the Obligor and the Fund (or the investment manager acting on
its behalf) as provided herein.
The Custodian shall have no responsibilities or duties whatsoever under this
Agreement, with respect to Loans or the Financing Documents, except for such
responsibilities as are expressly set forth herein. Without limiting the
generality of the foregoing, the Custodian shall have no obligation to
preserve any rights against prior parties or to exercise any right or perform
any obligation in connection with the Loans or any Financing Documents
(including, without limitation, no obligation to take any action in respect
of or upon receipt of any consent solicitation, notice of default or similar
notice received from any bank agent or Obligor, except that the Custodian
shall undertake reasonable efforts to forward any such notice to the Fund or
the investment manager acting on its behalf). In case any question arises as
to its duties hereunder, the Custodian may request instructions from the Fund
and shall be entitled at all times to refrain from taking any action unless
it has received Proper Instructions from the Fund or the investment manager
and the Custodian shall in all events have no liability, risk or cost for any
action taken, with respect to a Loan, pursuant to and in compliance with the
Proper Instructions of such parties.
The Custodian shall only be responsible and accountable for Loan Payments
actually received by it and identified as for the account of the Fund; any
and all credits and payments credited to the Fund, with respect to Loans,
shall be conditional upon clearance and actual receipt by the Custodian of
final payment thereon.
The Custodian shall promptly, upon the Fund's request, release to the Fund's
investment manager or to any party as the Fund or the Fund's investment
manager may specify, any Financing Documents being held on behalf of the
Fund. Without limiting the foregoing, the Custodian shall not be deemed to
have or be charged with knowledge of the sale of any Loan, unless and except
to the extent it shall have received written notice and instruction from the
Fund (or the investment manager acting on its behalf) with respect thereto,
and except to the extent it shall be received the sale proceeds thereof.
In no event shall the Custodian be under any obligation or liability to make
any advance of its own funds with respect to any Loan.
SECTION 5.4 RESPONSIBILITY OF THE FUND. With respect to each Loan held
by the Custodian hereunder in accordance with the provisions hereof, the Fund
shall (a) cause the Financing Documents evidencing such Loan to be delivered
to the Custodian; (b) include with such Financing Documents an amortization
schedule of payments (the "Payment Schedule") identifying the amount and due
dates of scheduled principal payments, the Interest Payable Date(s) and
related payment amount information, and such other information with respect
to the related Loan and Financing Documents as the Custodian reasonably may
require in order to perform its services hereunder (collectively, "Loan
Information"), in such form and format as the Custodian reasonably may
require; (c) take, or cause the investment manager to take, all actions
necessary to acquire good title to such Loan (or participation in such Loan,
as the case may be), as and to the extent intended to be acquired; and (d)
cause the Custodian to be named as its nominee for payment purposes under the
Financing Documents or otherwise provide for the direct payment of the
Payments to the Custodian. The Custodian shall be entitled to rely upon the
Loan Information provided to it by the Fund (or the investment manager acting
on its behalf) without any obligation on the part of the Custodian
independently to verify, investigate, update or otherwise confirm the
accuracy or completeness thereof; and the Custodian shall have no liability
for any delay or failure on the part of the Fund in providing necessary Loan
Information to the Custodian, or for any inaccuracy therein or incompleteness
thereof. With respect to each such Loan, the Custodian shall be entitled to
rely on any information and notices it may receive from time to time from the
related bank agent, Obligor or similar party with respect to the related
Loan, and shall be entitled to update its records on the basis of such
information or notices received, without any obligation on its part
independently to verify, investigate or recalculate such information.
SECTION 5.5 INSTRUCTIONS; AUTHORITY TO ACT. The certificate of the
Secretary or an Assistant Secretary of the Fund's Board of Directors,
identifying certain individuals to be officers of the Fund or employees of
the Fund's investment manager authorized to sign any such instructions, may
be received and accepted as conclusive evidence of the incumbency and
authority of such act and may be considered by the Custodian to be in full
force and effect until it receives written notice to the contrary from the
Secretary or Assistant Secretary of the Fund's Board. Notwithstanding any
other provision of this Agreement, the Custodian shall have no responsibility
to ensure that any investment by the Fund with respect to Loans has been
authorized
SECTION 5.6 ATTACHMENT. In case any portion of the Loans or the
Financing Documents shall be attached or levied upon pursuant to an order of
court, or the delivery or disbursement thereof shall be stayed or enjoined by
any order of court, or any other order, judgment or decrees shall be made or
entered by any court affecting the property of the Fund or any act of the
Custodian relating thereto, the Custodian is hereby expressly authorized in
its sole discretion to obey and comply with all orders, judgments or decrees
so entered or issued., without the necessity of inquire whether such court
had jurisdiction, and, in case the Custodian obeys or complied with any such
order, judgment or decree, it shall not be liable to anyone by reason of such
compliance.
SECTION 6 PAYMENTS FOR SALES OR REPURCHASES OR REDEMPTIONS OF SHARES
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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 shall provide timely notification to the Fund on
behalf of each such Portfolio and the Transfer Agent of any receipt by it of
payments for Shares of such Portfolio.
From such funds as may be available for the purpose, the Custodian shall,
upon receipt of instructions from the Transfer Agent, make funds available
for payment to holders of Shares who have delivered to the Transfer Agent a
request for redemption or repurchase of their Shares. In connection with the
redemption or repurchase of Shares, the Custodian is authorized upon receipt
of instructions from the Transfer Agent to wire funds to or through a
commercial bank designated by the redeeming shareholders. In connection with
the redemption or repurchase of Shares, the Custodian shall honor checks
drawn on the Custodian by a holder of Shares, which checks have been
furnished by the Fund to the holder of Shares, when presented to the
Custodian in accordance with such procedures and controls as are mutually
agreed upon from time to time between the Fund and the Custodian.
SECTION 7 PROPER INSTRUCTIONS
Proper Instructions, which may also be standing instructions, as used
throughout this Agreement, shall mean instructions received by the Custodian
from the Fund, the Fund's investment manager, or a person or entity duly
authorized by either of them. Such instructions may be in writing signed by
the authorized person or persons or may be in a tested communication or in a
communication utilizing access codes effected between electro-mechanical or
electronic devices or may be by such other means and utilizing such
intermediary systems and utilities as may be agreed to from time to time by
the Custodian and the person or entity giving such instructions, provided
that the Fund has following any security procedures agreed to from time to
time by the fund and the Custodian, including, but not limited to, the
security procedures selected by the Fund in the Funds Transfer Addendum to
this Agreement. Oral instructions will be considered Proper Instruction if
the Custodian reasonably believes them to have been given by a person
authorized to give such instructions with respect to the transaction
involved. The Fund shall cause all oral instructions to be confirmed in
writing. For purposes of this Section, Proper Instructions shall include
instructions received by the Custodian pursuant to any multi-party agreement
which requires a segregated asset account in accordance with Section 2.9 of
this Agreement. The Fund or the Fund's investment manager shall cause its
duly authorized officer to certify to the Custodian in writing the names and
specimen signatures of persons authorized to give Proper Instructions. The
Custodian shall be entitled to rely upon the identity and authority of such
persons until it receives notice from the Fund to the contrary.
SECTION 8. ACTIONS PERMITTED WITHOUT EXPRESS AUTHORITY
The Custodian may in its discretion, without express authority from the Fund
on behalf of each applicable Portfolio:
1) make payments to itself or others for minor expenses of
handling securities or other similar items relating to its duties
under this Agreement, provided that all such payments shall be
accounted for to the Fund on behalf of the Portfolio;
2) surrender securities in temporary form for securities in
definitive form;
3) endorse for collection, in the name of the Portfolio,
checks, drafts and other negotiable instruments; and
4) in general, attend to all non-discretionary details in
connection with the sale, exchange, substitution, purchase,
transfer and other dealings with the securities and property of
the Portfolio except as otherwise directed by the Board.
SECTION 9. EVIDENCE OF AUTHORITY
The Custodian shall be protected in acting upon any instructions, notice,
request, consent, certificate or other instrument or paper believed by it to
be genuine and to have been properly executed by or on behalf of the Fund.
The Custodian may receive and accept a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Fund ("Certified Resolution") as
conclusive evidence (a) of the authority of any person to act in accordance
with such resolution or (b) of any determination or of any action by the
Board as described in such resolution, and such resolution may be considered
as in full force and effect until receipt by the Custodian of written notice
to the contrary.
SECTION 10. 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 10 and in Section 11 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 11. 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 12. 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 13. 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 14. 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.
SECTION 15. 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
including, without limitation, acting in accordance with any Proper
Instructions. 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 part of Country Risk (as defined in Section 3 hereof),
including without limitation nationalization, expropriation, currency
restrictions, or acts of war, revolution, riots or terrorism.
Except as may arise from the Custodian's own negligence or willful misconduct
or the negligence or willful misconduct of a sub-custodian or agent, the
Custodian shall be without liability to the Fund for any loss, liability,
claim or expense resulting from or caused by; (i) events or circumstances
beyond the reasonable control of the Custodian or any sub-custodian or
Securities System or any agent or nominee of any of the foregoing, including,
without limitation, the interruption, suspension or restriction of trading on
or the closure of any securities market, power or other mechanical or
technological failures or interruptions, computer viruses or communications
disruptions, work stoppages, natural disasters, or other similar events or
acts; (ii) errors by the Fund or its duly authorized investment manager or
investment advisor in their instructions to the Custodian provided such
instructions have been in accordance with this Agreement; (iii) the
insolvency of or acts or omissions by a Securities System; (iv) any delay or
failure of any broker, agent or intermediary, central bank or other
commercially prevalent payment or clearing system to deliver to the
Custodian's sub-custodian or agent securities purchased or in the remittance
or payment made in connection with securities sold; (v) any delay or failure
of any company, corporation, or other body in charge of registering or
transferring securities in the name of the Custodian, the Fund, the
Custodian's sub-custodians, nominees or agents or any consequential losses
arising out of such delay or failure to transfer such securities including
non-receipt of bonus, dividends and rights and other accretions or benefits;
(vi) delays or inability to perform its duties due to any disorder in market
infrastructure with respect to any particular security or Securities System;
and (vii) any provision of any present or future law or regulation or order
of the United States of America, or any state thereof, or any other country,
or political subdivision thereof or of any court of competent jurisdiction.
The Custodian shall be liable for the acts or omissions of a Foreign
Sub-Custodian (as defined in Section 4 hereof) to the same extent as set
forth with respect to sub-custodians generally in this Agreement.
If the Fund on behalf of a Portfolio requires the Custodian to take any
action with respect to securities, which action involves the payment of money
or which action may, in the opinion of the Custodian, result in the Custodian
or its nominee assigned to the Fund or the Portfolio being liable for the
payment of money or incurring liability of some other form, the Fund on
behalf of the Portfolio, as a prerequisite to requiring the Custodian to take
such action, shall provide indemnity to the Custodian in an amount and form
satisfactory to it.
If the Fund requires the Custodian, its affiliates, subsidiaries or agents,
to advance cash or securities for any purpose (including but not limited to
securities settlements, foreign exchange contracts and assumed settlement) or
in the event that the Custodian or its nominee shall incur or be assessed any
taxes, charges, expenses, assessments, claims or liabilities in connection
with the performance of this Agreement, except such as may arise from its or
its nominee's own negligent action, negligent failure to act or willful
misconduct, any property at any time held for the account of the applicable
Portfolio shall be security therefor and should the Fund fail to repay the
Custodian promptly, the Custodian shall be entitled to utilize available cash
and to dispose of such Portfolio's assets to the extent necessary to obtain
reimbursement.
In no event shall the Custodian be liable for indirect, special or
consequential damages.
SECTION 16. 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 17. 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 18. 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 19. ADDITIONAL FUNDS
In the event that the Fund establishes one or more series of Shares in
addition to those listed on the Appendix attached to this Agreement, with
respect to which it desires to have the Custodian render services as
custodian under the terms hereof, it shall so notify the Custodian in writing
and transmit to Custodian a revised Appendix A, and if the Custodian agrees
in writing to provide such services, such series of Shares shall become a
Portfolio hereunder.
SECTION 20. MASSACHUSETTS LAW TO APPLY
This Agreement shall be construed and the provisions thereof interpreted
under and in accordance with laws of The Commonwealth of Massachusetts.
SECTION 21. PRIOR AGREEMENTS
This Agreement supersedes and terminates, as of the date hereof, all prior
Agreements between the Fund on behalf of each of the Portfolios and the
Custodian relating to the custody of the Fund's assets.
SECTION 22. NOTICES.
-------
Any notice, instruction or other instrument required to be given hereunder
may be delivered in person to the offices of the parties as set forth herein
during normal business hours or delivered prepaid registered mail or by
telex, cable or telecopy to the parties at the following addresses or such
other addresses as may be notified by any party from time to time.
To the Fund: MTB GROUP OF FUNDS
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Secretary
Telephone: 000-000-0000
Telecopy: 000-000-0000
With a Copy to: MTB INVESTMENT ADVISORS, INC.
000 Xxxx Xxxxx Xxxxxx - 00xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Rus
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 23. REPRODUCTION OF DOCUMENTS
This Agreement and all schedules, addenda, exhibits, attachments and
amendments hereto may be reproduced by any photographic, photostatic,
microfilm, micro-card, miniature photographic or other similar process. The
parties hereto all/each agree that any such reproduction shall be admissible
in evidence as the original itself in any judicial or administrative
proceeding, whether or not the original is in existence and whether or not
such reproduction was made by a party in the regular course of business, and
that any enlargement, facsimile or further reproduction of such reproduction
shall likewise be admissible in evidence.
SECTION 24. REMOTE ACCESS SERVICES ADDENDUM
The Custodian and the Fund agree to be bound by the terms of the Remote
Access Services Addendum attached hereto.
SECTION 25 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 person 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 26. 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.
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 December 7, 2004.
MTB GROUP OF FUNDS FUND SIGNATURE ATTESTED TO BY:
By: Xxxx X. Xxxxxxxxx By: /s/ C. Xxxxx Xxxxxxxx
--------------------------- ---------------------------
Name: Xxxx X. Xxxxxxxxx Name: C. Xxxxx Xxxxxxxx
Title: Vice President Title: Secretary
STATE STREET BANK AND TRUST COMPANY SIGNATURE ATTESTED TO BY:
By:/s/ Xxxxxx X. Xxxxxx By:/s/ Xxxx X. Xxxx
--------------------------- ---------------------------
Name: Xxxxxx X. Xxxxxx Name: Xxxx X. Xxxx
Title: Executive Vice President
Title: Counsel
Appendix A
To the
Custodian Agreement
Between
MTB Group of Funds and
State Street Bank and Trust Company
Dated: December 7, 2004
Portfolios of MTB Group of Funds:
MTB BALANCED FUND;
MTB EQUITY INCOME FUND
MTB EQUITY INDEX FUND;
MTB INCOME FUND
MTB INTERMEDIATE-TERM BOND FUND
MTB INTERNATIONAL EQUITY FUND
MTB LARGE CAP GROWTH FUND
MTB LARGE CAP GROWTH FUND II
MTB LARGE CAP STOCK FUND
MTB LARGE CAP VALUE FUND
MTB LARGE CAP VALUE FUND II
MTB MANAGED ALLOCATION FUND - AGGRESSIVE GROWTH
MTB MANAGED ALLOCATION FUND - CONSERVATIVE GROWTH
MTB MANAGED ALLOCATION FUND - MODERATE GROWTH
MTB MANAGED ALLOCATION FUND - MODERATE GROWTH II
MTB MARYLAND MUNICIPAL BOND FUND
MTB MID CAP GROWTH FUND
MTB MID CAP STOCK FUND
MTB MONEY MARKET FUND
MTB MULTI CAP GROWTH FUND
MTB NEW YORK MUNICIPAL BOND FUND
MTB NEW YORK TAX-FREE MONEY MARKET FUND
MTB PENNSYLVANIA MUNICIPAL BOND FUND
MTB PENNSYLVANIA TAX FREE MONEY MARKET FUND
MTB PRIME MONEY MARKET FUND
MTB SHORT DURATION GOVERNMENT BOND FUND
MTB SHORT-TERM CORPORATE BOND FUND
MTB SMALL CAP GROWTH FUND
MTB SMALL CAP STOCK FUND
MTB SOCIAL BALANCED FUND
MTB TAX FREE MONEY MARKET FUND
MTB U.S. GOVERNMENT BOND FUND
MTB U.S. GOVERNMENT MONEY MARKET FUND
MTB U.S. TREASURY MONEY MARKET FUND
SCHEDULE A
State Street
Global Custody Network
Subcustodians
Country Subcustodian
Argentina Citibank, N.A.
Australia Westpac Banking Corporation
Citibank Pty. Limited
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 BNP Paribas Securities Services S.A.
Benin via Societe Generale de Banques en Cote d'Ivoire,
Abidjan Ivory Coast
Bermuda The Bank of Bermuda Limited
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
Cayman Islands Bank of Nova Scotia Trust Company (Cayman) Ltd.
Chile BankBoston, N.A.
People's Republic The 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 Bana Zagreb d.d
Cyprus Cyprus Popular Bank Ltd.
Czech Republic Eeskoslovenska Obchodni Banka, A.S.
Denmark Danske Bank A/S
SCHEDULE A
State Street
Global Custody Network
Subcustodians
Country Subcustodian
Ecuador Banco de la Produccion S.A.
Egypt HSBC Bank Egypt S.A.E.
(as delegate of The Hongkong and Shanghai Banking
Corporation Limited)
Estonia AS Hansabank
Finland Nordea Bank Finland Plc.
France BNP Paribas Securities Service, S.A.
Germany Deutsche 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 (Hong Kong) Limited
Hungary HVB Bank Hungary Rt.
Iceland Kaupthing Bank hf.
India Deutsche Bank AG
The Hongkong and Shanghai Banking Corporation Limited
Indonesia Deutsche Bank AG
Ireland Bank of Ireland
Israel Bank Hapoalim B.M.
Italy BNP Paribas Securities Services SA
Ivory Coast Societe Generale de Banques en Cote d'Ivoire
Jamaica Bank of Nova Scotia Jamaica Ltd.
SCHEDULE A
State Street
Global Custody Network
Subcustodians
Country Subcustodian
Japan Mizuho Corporate Bank Ltd
Sumitomo Mitsui Banking Corporation
Jordan HSBC Bank Middle East
(as delegate of The Hongkong and Shanghai Banking
Corporation Limited)
Kazakhstan HSBC Bank Kazakstan
(as delegate of The Hongkong and Shanghai Banking
Corporation Limited)
Kenya Barclays Bank of Kenya Limited
Republic of Korea Deutsche Bank AG
The 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
Malta HSBC Bank Malta Plc
Mauritius The Hongkong and Shanghai Banking Corporation Limited
Mexico Banco Nacional de Mexico, S.A.
Morocco Banque Commerciale du Maroc
Namibia Standard Bank Namibia Limited
Netherlands Deutsche Bank N.V.
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 Nordia Bank Norge ASA
Oman HSBC Bank Middle East
(as delegate of The Hongkong and Shanghai Banking
Corporation Limited)
SCHEDULE A
State Street
Global Custody Network
Subcustodians
Country Subcustodian
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 del Peru, N.A.
Philippines Standard Chartered Bank
Poland Citibank (Poland) S.A.
Bank Handlowy w Warszawie S.A.
Portugal Banco Comercial Portugues S.A.
Puerto Rico Citibank N.A.
Qatar HSBC Bank Middle East
(as delegate of The Hongkong and Shanghai Banking
Corporation Limited)
Romania ING Bank N.V.
Russia ING Bank (Eurasia) ZAO, Moscow
Singapore DBS Bank Limited
United Overseas Bank 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 Santander Central Hispano Investment S.A.
Sri Lanka The Hongkong and Shanghai Banking Corporation Limited
Swaziland Standard Bank Swaziland Limited
Sweden Skandinaviska Enskilda Xxxxxx XX
Switzerland UBS AG
Taiwan - R.O.C. Central Trust of China
SCHEDULE A
State Street
Global Custody Network
Subcustodians
Country Subcustodian
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 Arebe de Tunisie
Turkey Citibank, A.S.
Uganda Barclays Bank of Uganda Limited
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,
United Kingdom Branch
Uruguay BankBoston, N.A.
Venezuela Citibank, N.A.
Vietnam The Hongkong and Shanghai
Banking Corporation Limited
Zambia Barclays Bank of Zambia Plc
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)
Bahrain Clearing, Settlement and Depository System of the
Bahrain Stock Exchange
Bangladesh Central Depository Bangladesh Limited
Belgium Banque Nationale de Beligique
Caisse Interprofessionnelle de Depots et de Virements
de Titres, S.A.
Benin Depositaire Central - Banque de Reglement
Bermuda Bermuda Securities Depository
Brazil Central de Custodia e de Liquidacao Financeira de
Titulos Privados (CETIP)
Companhia Brasileira de Liquidacao e Custodia
Sistema Especial de Liquidacao e de Custodia (SELIC)
Bulgaria Bulgarian National Bank
Central Depository AD
Burkina Faso Depositaire Central - Banque de Reglement
Canada The 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 Central de Valores
Deposito Centralizado de Valores de Colombia S.A.
(DECEVAL)
Costa Rica Central de Valores S.A.
Croatia Sredisnja Depozitarna Agencija d.d.
SCHEDULE B
STATE STREET
GLOBAL CUSTODY NETWORK
DEPOSITORIES OPERATING IN NETWORK MARKETS
Country Depositories
Cyprus Central Depositoryand Central Registry
Czech Republic Czech National Bank
Stredisko cennych papiru - Ceska republika
Denmark Vaerdipapircentralen (Danish Securities Center)
Egypt Misr for Clearing, Settlement, and Depository S.A.E.
Estonia AS Eesti Vaartpaberikeskus
Finland Suomen Arvopaperikeskus
France Euroclear France
Germany Clearstream Banking AG, Frankfurt
Greece Apothetirion Titlon AE - Central Securities Depository
Bank of Greece,
System for Monitoring Transactions in Securities in
Book-Entry Form
Guinea-Bissau Depositaire Central - Banque de Reglement
Hong Xxxx Xxxxxxx Xxxxxxxxxxxx Xxxx
Xxxx Xxxx Securities Clearing Company Limited
Hungary Kozponti Elszamolohaz es Ertektar (Budapest) Rt.
(KELER)
Iceland Icelandic Securities Depository Limited
India Central Depository Services (India) Limited
National Securities Depository Limited
Reserve Bank of India
Indonesia Bank Indonesia
PT Kustodian Sentral Efek Indonesia
Israel Tel Aviv Stock Exchange Clearing House Ltd. (TASE
Clearinghouse)
SCHEDULE B
STATE STREET
GLOBAL CUSTODY NETWORK
DEPOSITORIES OPERATING IN NETWORK MARKETS
Country Depositories
Italy Monte Titoli S.p.A.
Ivory Coast Depositaire Central - Banque de Reglement
Jamaica Jamaica Central Securities Depository
Japan Bank of Japan Net System
Japan Securities Depository Center (JASDEC)
Incorporated
Kazakstan Central Depository of Securities
Kenya Central Bank of Kenya
Republic of Korea Korea Securities Depository
Latvia Latvian Central Depository
Lebanon Banque du Liban
Custodian and Clearing Center of Financial
Instruments for Lebanon
and the Middle East (Midclear) X.X.X.
Lithuania Central Securities Depository of Lithuania
Malaysia Bank Negara Malaysia
Bursa Malaysia Depository Sdn. Bhd.
Mali Depositaire Central - Banque de Reglement
Malta Central Securities Depository of the Malta Stock
Exchange
Mauritius Bank of Mauritius
Central Depository and Settlement Co. Ltd.
Mexico S.D. Indeval, S.A. de C.V.
Morocco Maroclear
Namibia Bank of Namibia
Netherlands Euroclear Nederland
New Zealand New Zealand Central Securities Depository Limited
SCHEDULE B
STATE STREET
GLOBAL CUSTODY NETWORK
DEPOSITORIES OPERATING IN NETWORK MARKETS
Country Depositories
Niger Depositaire Central - Banque de Reglement
Nigeria Central Securities Clearing System Ltd.
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
Panama Central Latinoamericana de Valores, S.A. (LatinClear)
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 Rejestr Papierow Wartooeciowych
Krajowy Depozyt Papierow Wartooeciowych SA
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 Bucharest Stock Exchange Registry Division
National Bank of Romania
National Securities Clearing, Settlement and
Depository Company
Russia Vneshtorgbank, Bank for Foreign Trade of the Russian
Federation
Senegal Depositaire Central - Banque de Reglement
Singapore The Central Depository (Pte) Limited
Monetary Authority of Singapore
SCHEDULE B
STATE STREET
GLOBAL CUSTODY NETWORK
DEPOSITORIES OPERATING IN NETWORK MARKETS
Country Depositories
Slovak Republic Naodna banka slovenska
Centralny depozitar cennych papierov SR, a.s.
Slovenia KDD - Centralna klirinsko depotna xxxxxx x.x.
South Africa Share Transactions Totally Electronic (STRATE) Ltd.
Spain IBERCLEAR
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 Bank of Thailand
Thailand Securities Depository Company Limited
Togo Depositaire Central - Banque de Reglement
Trinidad and Tobago Trinidad and Tobago Central Bank
Tunisia Societe Tunisienne Interprofessionelle pour la
Compensation
et de Depots des Valeurs Mobilieres (STICODEVAM)
Turkey Central Bank of Turkey
Takas ve Saklama Bankasi A.(a). (TAKASBANK)
Uganda Bank of Uganda
Ukraine Mizhregionalny Fondovy Souz
National Bank of Ukraine
United Arab Emirates Clearing and Depository System, a department of the
Dubai Financial Market
United Kingdom CrestCo.
Uruguay Banco Central del Uruguay
Venezuela Banco Central de Venezuela
SCHEDULE B
STATE STREET
GLOBAL CUSTODY NETWORK
DEPOSITORIES OPERATING IN NETWORK MARKETS
Country Depositories
Vietnam Securities Registration, Clearing and Settlement
Depository Department of the Securities Trading Center
Zambia Bank of Zambia
XxXX Central Shares Depository Limited
TRANSNATIONAL
Euroclear
Clearstream Banking S.A.
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, custody
(hardcopy annually and regular practices and foreign investor
consideration for the markets in which
website updates) State Street offers custodial services.
Global Custody Network Review Information relating to Foreign
Sub-Custodians in State Street's Global
(annually) 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 presently
(annually) 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 custodial
(annually) 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 subcustodian contracts 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 markets
(daily or as necessary) 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 services that
(as necessary) 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 State
(presently on a quarterly Street's foreign custody arrangements,
including a summary of
Basis or as otherwise necessary) 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
To
Custodian Agreement
Of December 7, 2004, between
MTB Group of Funds and
State Street Bank and Trust Company and
TRI-PARTY REPO CUSTODIAN BANKS ACCOUNT NUMBERS
XX Xxxxxx Chase Bank
The Bank of New York
Authorized Signatures:
By By:
---------------------------- ---------------------------
Title: Title:
------------------------ ------------------------
Date: Date:
------------------------- -------------------------
REMOTE ACCESS SERVICES ADDENDUM TO CUSTODIAN AGREEMENT
ADDENDUM to that certain Custodian Contract dated as of December 7,
2004 (the "Custodian Agreement") between MTB GROUP 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 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
Agreement and Customer will cooperate with State Street in seeking injunctive
or other equitable relief. 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"). 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 Agreement, 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, know-how, algorithms,
programs, training aids, printed materials, methods, books, records, files,
documentation and other information made available to Customer by State
Street as part of the Remote Access Service 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"). 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 Agreement. 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 Agreement, (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
yourself, as State Street's Customer.
The Customer agrees that neither it nor itsr Authorized Designees will modify
the System in any way, enhance or otherwise create derivative works based
upon the System, nor will Customer or its 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 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 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 you
or your 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 Agreement 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 supplier to do likewise. The Customer will do
likewise for its systems.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, 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 to use of the Remote Access Services by the
Customer under this Agreement constitutes direct infringement of any patent
or copyright or misappropriation of a trade secret, provided that you notify
State Street promptly in writing of any such claim or proceeding and
cooperate 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, 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 Agreement 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
you to State Street of termination, or (ii) immediately for failure of the
other party to comply with any material term and condition of the Agreement
by giving the other party written notice of termination. This Agreement
shall in any event terminate within ninety (90) days after the termination of
any custodian agreement applicable to the Customer. 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 information delivery and on-line access to State
Street. In~SightSM allows users a single point of entry into the many
views of data created by the diverse system and applications. Reports and
data from system such as Investment Policy MonitorSM, Multicurrency
HorizonSM, Securities Lending, Performance & Analytics can be accessed
through In~SightSM . This Internet-enabled application is designed to
run from a Web browser and perform across loss-speed data line 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 client roll out, as it is viewed as the information delivery system
that will grow withy State Street's customers.
------------------------------------------------------------------------------
STATE STREET
------------------------------------------------------------------------------
MTB Group of Funds
Custody, Fund Accounting and Fund Administration Fee Schedule
CUSTODY AND FUND ACCOUNTING SERVICES:
Maintain custody of fund assets. Settle portfolio purchases and sales.
Report buy and sell fails. Determine and collect portfolio income. Make
cash disbursements and report cash transactions in local and base currency.
Withhold foreign taxes. File foreign tax reclaims. Monitor corporate
actions. Report portfolio positions. Maintain investment ledgers, provide
selected general ledger reports, provide selected portfolio transactions,
position and income reports. Maintain general ledger and capital stock
accounts. Prepare daily trial balance. Calculate net asset value daily.
Fund administration services:
Reporting/
Audit Coordination: Semi-annual and annual financial statement
preparation, NSAR preparation and filing, drafting of Form
24 notice, audit co-ordination including completion of
audit letters, rating and survey agency reporting and daily
and periodic client reporting
Performance: Total returns (before and after tax) and SEC Yield
calculation oversight
Treasury Services: Expense budgeting and invoice processing,
distribution forecasting, NAV oversight
------------------------------------------------------------------------------
Fees
------------------------------------------------------------------------------
The fee below is an annual charge, billed and payable monthly, based on
average monthly net assets.
Domestic Custody (Global schedule attached - Exhibit 1)
First $250 Million .50 BP
Next $250 Million .33 BP
Excess .25 BP
Fund Accounting and Fund Administration (Domestic and Global)
First $5 Billion 3.70 BP's
Next $5 Billion 3.40 BP's
Next $10 Billion 3.15 BP's
Over $20 Billion 2.90 BP's
Out of Pocket
Domestic Waived
Global Xxxx as incurred
---------------------------------------------------------------------------
Payment
---------------------------------------------------------------------------
The above fees will be charged monthly against the fund's custodian checking
account five (5) days after the invoice is mailed to the fund's offices.
-------------------------------------------------------------------------------
MTB GROUP OF FUNDS STATE STREET BANK AND TRUST COMPANY
BY: /S/ XXXX X. XXXXXXXXX BY: /S/ XXXXXXX XXXXXXX
----------------------------------- -----------------------------
----------------------------------- -----------------------------
TITLE: VICE PRESIDENT TITLE: SENIOR VICE PRESIDENT
----------------------------------- -----------------------------
----------------------------------- -----------------------------
DATE: 12/3/03 DATE: 12/15/03
-------------------------------------------------------------------------------
Exhibit # 1
Attachment to Custody, Fund Accounting and Fund Administration Fee Schedule
------------------------------------------------------------------------------
State Street
------------------------------------------------------------------------------
Global Custody Fee Schedule
MTB Group of Funds
Custody: Maintain custody of fund assets. Settle portfolio purchases and
sales. Report buy and sell fails. Determine and collect portfolio income.
Make cash disbursements and report cash transactions in local and base
currency. Withhold foreign taxes. File foreign tax reclaims. Monitor
corporate actions. Report portfolio positions.
===================================================================================
COUNTRY * HOLDING TRANSACTION COUNTRY *HOLDING TRANSACTION
CHARGES IN CHARGES CHARGES IN CHARGES
BASIS (PER TRADE) BASIS POINTS (PER TRADE)
POINTS (ANNUAL FEE)
(ANNUAL FEE)
======================================== =========================================
Argentina 35.0 $125 Lebanon 40.0 $100
---------------------------------------- -----------------------------------------
----------------------------------------
Australia 5.0 $25 Lithuania 35.0 $50
---------------------------------------- -----------------------------------------
---------------------------------------- -----------------------------------------
Austria 10.0 $25 Luxembourg 35.0 $100
---------------------------------------- -----------------------------------------
---------------------------------------- -----------------------------------------
Bahrein 50.0 $150 Malaysia 15.0 $50
---------------------------------------- -----------------------------------------
---------------------------------------- -----------------------------------------
Bangladesh 45.0 $125 Mauritius 45.0 $125
---------------------------------------- -----------------------------------------
---------------------------------------- -----------------------------------------
Belgium 10.0 $50 Mexico 15.0 $50
---------------------------------------- -----------------------------------------
---------------------------------------- -----------------------------------------
Bermuda 65.0 $150 Morocco 35.0 $100
---------------------------------------- -----------------------------------------
---------------------------------------- -----------------------------------------
Bolivia 45.0 $125 Namibia 45.0 $125
---------------------------------------- -----------------------------------------
---------------------------------------- -----------------------------------------
Botswana 40.0 $150 Netherlands 15.0 $50
---------------------------------------- -----------------------------------------
---------------------------------------- -----------------------------------------
Brazil 35.0 $100 New Zealand 5.0 $25
---------------------------------------- -----------------------------------------
---------------------------------------- -----------------------------------------
Bulgaria 50.0 $100 Norway 15.0 $50
---------------------------------------- -----------------------------------------
---------------------------------------- -----------------------------------------
Canada 3.0 $25 Oman 65.0 $150
---------------------------------------- -----------------------------------------
---------------------------------------- -----------------------------------------
Chile 40.0 $100 Pakistan 45.0 $125
---------------------------------------- -----------------------------------------
---------------------------------------- -----------------------------------------
China 35.0 $100 Peru 45.0 $125
---------------------------------------- -----------------------------------------
---------------------------------------- -----------------------------------------
Colombia 45.0 $150 Philippines 15.0 $50
---------------------------------------- -----------------------------------------
---------------------------------------- -----------------------------------------
Croatia 50.0 $100 Poland 45.0 $125
---------------------------------------- -----------------------------------------
---------------------------------------- -----------------------------------------
Cyprus 45.0 $125 Portugal 15.0 $50
---------------------------------------- -----------------------------------------
---------------------------------------- -----------------------------------------
Czech 35.0 $100 Romania 75.0 $100
Republic
---------------------------------------- -----------------------------------------
---------------------------------------- -----------------------------------------
Denmark 5.0 $25 Russia 55.0 $300
---------------------------------------- -----------------------------------------
---------------------------------------- -----------------------------------------
Ecuador 35.0 $100 Singapore 15.0 $50
---------------------------------------- -----------------------------------------
---------------------------------------- -----------------------------------------
Egypt 35.0 $100 Slovakia 45.0 $125
---------------------------------------- -----------------------------------------
---------------------------------------- -----------------------------------------
Estonia 50.0 $50 Slovak 45.0 $75
Republic
---------------------------------------- -----------------------------------------
---------------------------------------- -----------------------------------------
Euroclear 5.0 $25 Slovania 75.0 $100
---------------------------------------- -----------------------------------------
---------------------------------------- -----------------------------------------
Finland 15.0 $60 South Africa 5.0 $25
---------------------------------------- -----------------------------------------
---------------------------------------- -----------------------------------------
France 6.0 $25 South Korea 45.0 $125
---------------------------------------- -----------------------------------------
---------------------------------------- -----------------------------------------
Germany 5.0 $25 Spain 15.0 $50
---------------------------------------- -----------------------------------------
---------------------------------------- -----------------------------------------
Ghana 35.0 $100 Sri Lanka 35.0 $100
---------------------------------------- -----------------------------------------
---------------------------------------- -----------------------------------------
Greece 45.0 $125 Swaziland 75.0 $200
---------------------------------------- -----------------------------------------
---------------------------------------- -----------------------------------------
Hong Kong 9.0 $50 Sweden 15.0 $50
---------------------------------------- -----------------------------------------
---------------------------------------- -----------------------------------------
Hungary 45.0 $125 Switzerland 5.0 $25
---------------------------------------- -----------------------------------------
---------------------------------------- -----------------------------------------
Iceland 35.0 $50 Taiwan 35.0 $100
---------------------------------------- -----------------------------------------
---------------------------------------- -----------------------------------------
India 45.0 $125 Thailand 15.0 $50
---------------------------------------- -----------------------------------------
---------------------------------------- -----------------------------------------
Indonesia 15.0 $50 Trinidad & 35.0 $100
Tobago
---------------------------------------- -----------------------------------------
---------------------------------------- -----------------------------------------
Ireland 15.0 $50 Tunisia 45.0 $125
---------------------------------------- -----------------------------------------
---------------------------------------- -----------------------------------------
Israel 35.0 $100 Turkey 35.0 $100
---------------------------------------- -----------------------------------------
---------------------------------------- -----------------------------------------
Italy 5.0 $25 Ukraine 75.0 $300
---------------------------------------- -----------------------------------------
---------------------------------------- -----------------------------------------
Ivory Coast 75.0 $150 United 5.0 $25
Kingdom
---------------------------------------- -----------------------------------------
---------------------------------------- -----------------------------------------
Jamaica 45.0 $125 Uruguay 45.0 $125
---------------------------------------- -----------------------------------------
---------------------------------------- -----------------------------------------
Japan 5.0 $25 USA Refer to
Domestic
Fee Schedule
---------------------------------------- -----------------------------------------
---------------------------------------- -----------------------------------------
Jordan 45.0 $125 Venezuela 45.0 $125
---------------------------------------- -----------------------------------------
---------------------------------------- -----------------------------------------
Kenya 35.0 $100 Zambia 35.0 $100
---------------------------------------- -----------------------------------------
Latvia 65.0 $50 Zimbabwe 35.0 $100
-----------------------------------------------------------------------------------
---------------------------------------- -----------------------------------------
REMOTE ACCESS SERVICES ADDENDUM TO CUSTODIAN AGREEMENT
ADDENDUM to that certain Custodian Agreement dated as of November 8,
2000 (the "Custodian Agreement") between MTB GROUP OF FUNDS (the "Customer")
and State Street Bank and Trust company.
State Street Bank and Trust Company, including its subsidiaries and
affiliates ("State Street"), has developed and utilizes proprietary
accounting and other systems in conjunctions with the custodian services
which we provide to you. In this regard, we maintain certain information in
databases under our control and ownership which we make available to our
customers (the "Remote Access Services").
The Services
State Street agrees to provide you, the Customer, and your designated
investment advisors, consultants or other third parties authorized by State
Street who agree to abide by the terms of this Agreement ("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
You agree to comply, and to cause your 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. You agree to advise State
Street immediately in the event that you learn or have reason to believe
that any person to whom you have given access to the System or the Remote
Access Services has violated or intends to violate the terms of this
Agreement and you will cooperate with State Street in seeking injunctive or
other equitable relief. You agree 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"). You 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 Agreement, 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, know-how,
algorithms, programs, training aids, printed materials, methods, books,
records, files, documentation and other information made available to you by
State Street as part of the Remote Access Service 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"). You agree on behalf of yourself and your
Authorized Designees to keep the Proprietary Information confidential and to
limit access to your 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.
You agree to use the Remote Access Services only in connection with the
proper purposes of this Agreement. You will not, and will cause your
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 Agreement, (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
yourself, as our Customer.
You agree that neither you nor your Authorized Designees will modify
the System in any way, enhance or otherwise create derivative works based
upon the System, nor will you or your Authorized Designees reverse engineer,
decompile or otherwise attempt to secure the source code for all or any part
of the System.
You acknowledge 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 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 you and your 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 you or your
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 Agreement 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 supplier to do likewise.
You will be likewise for your systems.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, 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 you to the extent that it is based upon an assertion that
access to the System to use of the Remote Access Services by you under this
Agreement constitutes direct infringement of any patent or copyright or
misappropriation of a trade secret, provided that you notify State Street
promptly in writing of any such claim or proceeding and cooperate 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, copyright or trade secret laws, State
Street shall have the right, at State Street's sole option, to (i) procure
for you 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 Agreement without further obligation.
Termination
Either party may terminate this Agreement (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 you or thirty
(30) days' notice in the case of notice from you to State Street of
termination, or (ii) immediately for failure of the other party to comply
with any material term and condition of the Agreement by giving the other
party written notice of termination. This Agreement shall in any event
terminate within ninety (90) days after the termination of any custodian
agreement applicable to you. In the event of termination, you will return to
State Street all copies of documentation and other confidential information
in your possession or in the possession of your Authorized Designees. The
foregoing provisions with respect to confidentiality and infringement will
survive termination for a period of three (3) years.
Miscellaneous
This Agreement and the exhibits hereto constitute our entire
understanding with respect to access to the System and the Remote Access
Services. This Agreement cannot be modified or altered except in a writing
duly executed by both of us and shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts.
Should you wish to avail yourself of the System and the Remote Access
Services, please sign and return one copy of this letter. If you do not sign
and return one copy of this letter we will deem your and your Authorized
Designees' continued use of the System and the Remote Access Services to be
your acceptance of these terms.
EXHIBIT A
to
REMOTE ACCESS SERVICES ADDENDUM TO CUSTODIAN AGREEMENT
IN~SIGHTSM
System Product Description
In~SightSM provides information delivery and on-line access to State
Street. In~SightSM allows users a single point of entry into the many
views of data created by the diverse system and applications. Reports and
data from system such as Investment Policy MonitorSM, Multicurrency
HorizonSM, Securities Lending, Performance & Analytics can be accessed
through In~SightSM . This Internet-enabled application is designed to
run from a Web browser and perform across loss-speed data line 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 client roll out, as it is viewed as the information delivery system
that will grow withy State Street's customers.
