AMENDED AND RESTATED MASTER CUSTODIAN AGREEMENT
Exhibit
g 1
AMENDED AND
RESTATED
This
AMENDED AND RESTATED CUSTODIAN AGREEMENT (the “Agreement”) is made as of January
1, 2011, by and among each
registered investment company identified on the signature page hereto
(each such registered
investment company shall hereinafter be referred to as a “Fund” and
collectively the “Funds”), and STATE
STREET BANK AND TRUST COMPANY a Massachusetts trust company (the “Bank”).
WHEREAS,
each Fund, an open-end management investment company on behalf of its respective
portfolios/series listed on Appendix A hereto (as such Appendix A may be amended
from time to time) (each a “Portfolio” and collectively, the “Portfolios”), desires
to place and maintain all of its portfolio securities and cash in the custody of
the Bank; and
WHEREAS,
the Bank meets the qualifications required by Section 17(f)(1) of the Investment
Company Act of 1940, as amended (the “1940 Act”), to act as
custodian of the portfolio securities and cash of each Fund, and has indicated
its willingness to so act, subject to the terms and conditions of this
Agreement; and
WHEREAS
the Funds and Investors Bank & Trust Company (“IBT”) entered into a
Custodian Agreement dated June 30, 2005, as amended, modified and supplemented
from time to time (the “Custodian Agreement”);
WHEREAS,
IBT merged with and into the Bank, effective July 2, 2007, with the result that
the Bank now serves as Custodian under the Custodian Agreement; and
WHEREAS,
the Funds have requested that the Bank amend the Custodian Agreement and the
Bank has agreed to do so as an accommodation to the Funds notwithstanding that
as amended, the Custodian Agreement is not identical to the form of custodian
agreement customarily entered into by the Bank as custodian, in order that the
services to be provided to the Funds on behalf of their Portfolios by the Bank,
as successor by merger to IBT, may be made consistently and predictably to the
Funds.
NOW,
THEREFORE, in consideration of the premises and of the mutual agreements
contained herein, the parties hereto agree as follows:
1. Bank Appointed
Custodian. Each Fund hereby appoints the Bank as custodian of
its portfolio securities and cash delivered to the Bank as hereinafter described
and the Bank agrees to act as such upon the terms and conditions hereinafter set
forth. For the services rendered pursuant to this Agreement, each Fund agrees to
pay to the Bank, on behalf of each applicable Portfolio, fees as may be agreed
to from time to time in writing between the parties.
2. Definitions. Whenever
used herein, the terms listed below will have the following
meaning:
2.1. Authorized
Person. Authorized Person will mean any of the persons duly
authorized to give Proper Instructions or otherwise act on behalf of the
applicable Fund by appropriate resolution of its Board, and set forth in a
certificate as required by Section 4 hereof.
2.2. Board. Board will
mean the Board of Directors or the Board of Trustees of each Fund, as the case
may be.
2.3. Security. The term
security as used herein will have the same meaning assigned to such term in the
1940 Act, including, without limitation, any note, stock, treasury stock,
security future, bond, debenture, evidence of indebtedness, certificate of
interest or participation in any profit-sharing agreement, collateral-trust
certificate, preorganization certificate or subscription, transferable share,
investment contract, voting-trust certificate, certificate of deposit for a
security, fractional undivided interest in oil, gas, or other mineral rights,
any put, call, straddle, option, or privilege on any security (including a
certificate of deposit) or on any group or index of securities (including any
interest therein or based on the value thereof), or any put, call, straddle,
option, or privilege entered into on a national securities exchange relating to
foreign currency, or, in general, any interest or instrument commonly known as a
“security”, or any certificate of interest or participation in, temporary or
interim certificate for, receipt for, guarantee of, or warrant or right to
subscribe to or purchase, any of the foregoing.
2.4. Portfolio
Security. Portfolio Security will mean any security owned by a
Fund.
2.5. Officers’
Certificate. Officers’ Certificate will mean, unless otherwise indicated,
any request, direction, instruction, or certification in writing signed by any
two Authorized Persons of a Fund.
2.6. Book-Entry System.
Book-Entry System shall mean the Federal Reserve-Treasury Department Book Entry
System for United States government, instrumentality and agency securities
operated by the Federal Reserve Bank, its successor or successors and its
nominee or nominees.
2.7. Depository.
Depository shall mean The Depository Trust & Clearing Corporation (“DTCC”), a clearing
agency registered with the Securities and Exchange Commission under Section 17A
of the Securities Exchange Act of 1934, as amended (“Exchange Act”), its
successor or successors and its nominee or nominees. The term “Depository” shall
further mean and include any other person authorized to act as a depository
under the 1940 Act, its successor or successors and its nominee or nominees,
specifically identified in a certified copy of a resolution of the
Board.
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2.8. Proper Instructions.
Unless otherwise provided in this agreement, the Bank shall act only upon Proper
Instructions. Proper Instructions, which may also mean standing instructions,
shall mean (i) instructions regarding the purchase or sale of Portfolio
Securities, and payments and deliveries in connection therewith, given by an
Authorized Person, such instructions to be given in such form and manner as the
Bank and a Fund shall agree upon from time to time (which may be in writing or
in a tested communication or in a communication utilizing access codes effected
between electromechanical 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 Bank and the person or entity giving such instructions,
provided that the Fund has followed any security procedures agreed to from time
to time by the Fund and the Bank), and (ii) instructions (which may be
continuing instructions) regarding other matters signed by an Authorized Person.
Oral instructions will be considered Proper Instructions if the Bank reasonably
believes them to have been given by an Authorized Person with respect to the
transaction involved. Each Fund shall cause all oral instructions to be promptly
confirmed in writing by an Authorized Person. The Bank shall act upon and comply
with any subsequent Proper Instruction which modifies a prior instruction and
the sole obligation of the Bank with respect to any follow-up or confirming
instruction shall be to make reasonable efforts to detect any discrepancy
between the original instruction and such confirmation and to report such
discrepancy to the Authorized Persons of the Fund. Each Fund shall be
responsible, at the Fund’s expense, for taking any action, including any
reprocessing, necessary to correct any such discrepancy or error, and to the
extent such action requires the Bank to act, the Fund shall give the Bank
specific Proper Instructions as to the action required. For avoidance
of doubt, Proper Instructions shall also include instructions received by the
Bank pursuant to any multi-party agreement which requires a segregated asset
account in accordance with Section 6.9 hereof.
3.
3.1. Separate Accounts.
Since each Fund has more than one Portfolio, the Bank will segregate the assets
of each Portfolio to which this Agreement relates into a separate account for
each such Portfolio containing the assets of such Portfolio (and all investment
earnings thereon). Unless the context otherwise requires, any reference in this
Agreement to any actions to be taken by a Fund shall be deemed to refer to the
Fund acting on behalf of one or more of its Portfolios. Any reference in this
Agreement to any assets of the Fund, including, without limitation, any
portfolio securities and cash and earnings thereon, shall be deemed to refer
only to assets of the applicable Portfolio, any duty or obligation of the Bank
hereunder to the Fund shall be deemed to refer to duties and obligations with
respect to such individual Portfolio and any obligation or liability of the Fund
hereunder shall be binding only with respect to such individual Portfolio, and
shall be discharged only out of the assets of such Portfolio.
3.2. Reports. The Bank
shall make available to each Fund each business day as soon as practicable,
typically by 7:00 p.m. EST, all transaction activity posted on each separate
account of the Funds for their respective Portfolios, either hereunder or with
any sub-custodian appointed in accordance with this Agreement during said day,
together with historical transaction activity for such Fund. At least monthly
and from time to time, the Bank will furnish each Fund with a detailed
statement, on a per Portfolio basis, of the Securities and moneys held by the
Bank for the Fund.
4. Certification as to
Authorized Persons. The Secretary or Assistant Secretary of each Fund
will at all times maintain on file with the Bank his or her certification to the
Bank, in such form as may be acceptable to the Bank, of (i) the names and
signatures of the Authorized Persons and (ii) the names of the members of the
Board, it being understood that upon the occurrence of any change in the
information set forth in the most recent certification on file (including
without limitation any person named in the most recent certification who is no
longer an Authorized Person as designated therein), the Secretary or Assistant
Secretary of the Fund will sign a new or amended certification setting forth the
change and the new, additional or omitted names or signatures. The Bank will be
entitled to rely and act upon any Officers’ Certificate given to it by the Fund
which has been signed by Authorized Persons named in the most recent
certification received by the Bank.
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5.
5.1. Custody of Cash. As
custodian for the Funds, the Bank will open and maintain a separate account or
accounts in the name of each Fund and each Portfolio thereof or in the name of
the Bank, as Custodian of the Fund, and will deposit to the account of the Fund
all of the cash of the Fund, except for cash held by a subcustodian appointed
pursuant to Sections 13.2 or 13.3 hereof, including borrowed funds, delivered to
the Bank, subject only to draft or order by the Bank acting pursuant to the
terms of this Agreement. Pursuant to the Bank’s internal policies regarding the
management of cash accounts, the Bank may segregate certain portions of the cash
of the Fund into a separate savings deposit account upon which the Bank reserves
the right to require seven (7) days notice prior to withdrawal of cash from such
an account. Upon receipt by the Bank of Proper Instructions (which may be
continuing instructions) or in the case of payments for redemptions and
repurchases of outstanding shares of common stock of a Fund, notification from
the Fund’s transfer agent as provided in Section 7, requesting such payment,
designating the payee or the account or accounts to which the Bank will release
funds for deposit, the Bank will make payments of cash held for the accounts of
the Fund, insofar as funds are available for that purpose, only as permitted in
subsections (a) through (i) below.
(a) Purchase of
Securities. Upon the purchase of securities for a Fund, against
contemporaneous receipt of such securities by the Bank or against delivery of
such securities to the Bank in accordance with generally accepted settlement
practices and customs in the jurisdiction or market in which the transaction
occurs registered in the name of the Fund or a nominee of the Fund or in the
name of, or properly endorsed and in form for transfer to, the Bank, or a
nominee of the Bank, or receipt for the account of the Bank pursuant to the
provisions of Section 6 below, each such payment to be made at the purchase
price shown on a broker’s confirmation of purchase of the securities received by
the Bank before such payment is made, as confirmed in the Proper Instructions
received by the Bank before such payment is made;
(b) Redemptions. In such
amount as may be necessary for the repurchase or redemption of common shares or
shares of beneficial interests of each Fund offered for
repurchase or redemption in accordance with Section 7 of this
Agreement;
(c) Distributions and Expenses
of Fund. For the payment on the account of a Fund of dividends or other
distributions to shareholders as may from time to time be declared by the Board,
interest, taxes, management or supervisory fees, distribution fees, fees of the
Bank for its services hereunder and reimbursement of the expenses and
liabilities of the Bank, fees of any transfer agent, fees for legal, accounting,
and auditing services, or other operating expenses of the Fund;
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(d) Payment in Respect of
Securities. For payments in connection with the conversion, exchange or
surrender of Portfolio Securities or securities subscribed to by a Fund held by
or to be delivered to the Bank;
(e) Repayment of Loans.
To repay loans of money made to the Fund, but in the case of final payment, only
upon redelivery to the Bank of any Portfolio Securities pledged or hypothecated
therefor and upon surrender of documents evidencing the loan;
(f) Repayment of Cash. To
repay the cash delivered to a Fund for the purpose of collateralizing the
obligation to return to the Fund certificates borrowed from the Fund
representing Portfolio Securities, but only upon redelivery to the Bank of such
borrowed certificates;
(g) Foreign Exchange
Transactions.
(i) For
payments in connection with foreign exchange contracts or options to purchase
and sell foreign currencies for spot and future delivery (collectively, “Foreign Exchange
Agreements”) which may be entered into by the Bank on behalf of a Fund
upon the receipt of Proper Instructions, such Proper Instructions to specify the
currency broker or banking institution (which may be the Bank, or any other
subcustodian or agent hereunder, acting as principal) with which the contract or
option is made, and the Bank shall have no duty with respect to the selection of
such currency brokers or banking institutions with which the Fund deals or for
their failure to comply with the terms of any contract or option. The
Bank may establish rules or limitations concerning any foreign exchange facility
made available. In all cases where the Bank, its affiliates or
subcustodians enter into a master foreign exchange contract that covers foreign
exchange transactions, the terms and conditions of that foreign exchange
contract and, to the extent not inconsistent, this Agreement, will apply to such
transactions.
(ii) In
order to secure any payments in connection with Foreign Exchange Agreements
which may be entered into by the Bank pursuant to Proper Instructions, each Fund
agrees that the Bank shall have a continuing lien and security interest, to the
extent of any payment due under any Foreign Exchange Agreement with respect to a
Portfolio, in and to any property at any time held by the Bank for the
Portfolio’s benefit or in which the Portfolio has an interest and which is then
in the Bank’s possession or control (or in the possession or control of any
third party acting on the Bank’s behalf). Such payment liability and the
concomitant liens and security interests are not permitted to exceed a value
equal to 331/3% of a
Portfolio’s total assets. Each Fund authorizes the Bank, in the Bank’s sole
discretion, at any time to charge any such payment due under any Foreign
Exchange Agreement against any balance of account standing to the credit of the
Fund on the Bank’s books;
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(h) Other Authorized
Payments. For other authorized transactions of a Fund, or other
obligations of a Fund incurred for proper Fund purposes; provided that before
making any such payment the Bank will also receive Proper Instructions;
or
(i) Termination. Upon the
termination of this Agreement as hereinafter set forth pursuant to Section 8 and
Section 15 of this Agreement.
5.2. Pledge or Encumbrance of
Securities or Cash. Except as provided in this Agreement, the Bank may
not pledge, assign, hypothecate or otherwise encumber securities or cash of the
Fund held in the Fund’s account without the Fund’s prior written
consent.
6. Securities.
6.1. Segregation and
Registration. Except as otherwise provided herein, and except for
securities to be delivered to any subcustodian appointed pursuant to Sections
13.2 or 13.3 hereof, the Bank as custodian will receive and hold pursuant to the
provisions hereof, in a separate account or accounts and physically segregated
at all times from those of other persons, any and all Portfolio Securities which
may now or hereafter be delivered to it by or for the account of a Fund or in
the name of its nominee. All such Portfolio Securities will be held or disposed
of by the Bank for, and subject at all times to, the instructions of the Fund
pursuant to the terms of this Agreement. Subject to the specific provisions
herein relating to Portfolio Securities that are not physically held by the
Bank, the Bank will register all Portfolio Securities (unless otherwise directed
by Proper Instructions or an Officers’ Certificate), in the name of a registered
nominee of the Bank as defined in the Internal Revenue Code and any Regulations
of the Treasury Department issued thereunder for the benefit of the Fund, and
will execute and deliver all such certificates in connection therewith as may be
required by such laws or regulations or under the laws of any
state.
Each Fund
will from time to time furnish to the Bank appropriate instruments to enable it
to hold or deliver in proper form for transfer, or to register in the name of
its registered nominee, any Portfolio Securities that may from time to time be
registered in the name of the Fund.
6.2. Voting and Proxies.
Neither the Bank nor any nominee of the Bank will vote any of the Portfolio
Securities held hereunder, except in accordance with Proper Instructions or an
Officers’ Certificate: The Bank will promptly execute and deliver, or cause to
be executed and delivered, to the Fund or its agent for purposes of voting
proxies all notices, proxies and proxy soliciting materials delivered to the
Bank with respect to such Securities, such proxies to be executed by a Fund, its
agent or the registered holder of such Securities (if registered otherwise than
in the name of the Fund), but without indicating the manner in which such
proxies are to be voted.
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6.3. Corporate Action and Class
Action Notices. If at any time the Bank is notified that (a) a Fund may
be eligible to participate in an class action lawsuit involving any Portfolio
Security or (b) an issuer of any Portfolio Security has taken or intends to take
a corporate action that affects the rights, privileges, powers, preferences,
qualifications or ownership of a Portfolio Security, including without
limitation, liquidation, consolidation, merger, recapitalization,
reorganization, reclassification, subdivision, combination, stock split or stock
dividend (collectively, a “Corporate Action”),
which Corporate Action requires an affirmative response or action on the part of
the holder of such Portfolio Security (a “Response”), the Bank
shall notify the appropriate Fund or its agent for purposes of responding to
Corporate Actions promptly of the Corporate Action, the Response required in
connection with the Corporate Action. The Bank’s reasonable deadline for receipt
from the Fund of Proper Instructions regarding the Response shall be three
business days prior to the date on which the Bank is to act upon such Response
(the “Response
Deadline”). The Bank shall forward to the Fund or its agent all written
notices, information statements or other materials relating to the Corporate
Action promptly after receipt of such materials by the Bank.
(a) The
Bank shall act upon a required Response only after receipt by the Bank of Proper
Instructions from the Fund no later than 5:00 p.m. on the date specified as the
Response Deadline and only if the Bank (or its agent or subcustodian hereunder)
has actual possession of all necessary Securities, consents and other materials
no later than 5:00 p.m. on the date specified as the Response
Deadline.
(b) The
Bank shall have no duty to act upon a required Response if Proper Instructions
relating to such Response and all necessary Securities, consents and other
materials are not received by and in the possession of the Bank no later than
5:00 p.m. on the date specified as the Response Deadline. Notwithstanding the
foregoing, the Bank will use its best efforts to act upon a Response for which
Proper Instructions and/or necessary Securities, consents or other materials are
received by the Bank after 5:00 p.m. on the date specified as the Response
Deadline, it being acknowledged and agreed by the parties that any undertaking
by the Bank to use its best efforts in such circumstances shall in no way create
any duty upon the Bank to complete such Response prior to its
expiration.
(c) In
the event that the Fund or its agent notifies the Bank of a Corporate Action
requiring a Response and the Bank has received no other notice of such Corporate
Action, the Response Deadline shall be 48 hours prior to the Response expiration
time set by the depository processing such Corporate Action.
(d) Section
13.4(e) of this Agreement shall govern any Corporate Action involving Foreign
Portfolio Securities held by an Eligible Foreign Sub-Custodian.
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(e) The
Bank provides the ability for Funds to respond to Corporate Actions through
electronic means using either (i) the Bank’s CApTAIN® function
(or its successor, if any) or (ii) appropriate SWIFT messaging. In the event any
Fund or its agent provides a Corporate Action Response other than by the
aforementioned electronic means, the Bank shall not be responsible for any delay
or failure to process such Response in a timely manner. In addition, the Bank
may assess additional processing fees to cover the cost of manually processing
Corporate Actions Responses provided to the Bank other than by the
aforementioned electronic means.
6.4. Book-Entry
System. The Bank may deposit and/or maintain securities owned
by a Portfolio in the Book-Entry System in compliance with the conditions of
Rule 17f-4 under the 1940 Act, as amended from time to time.
6.5. Use of a
Depository. The Bank may deposit and/or maintain securities
owned by a Portfolio in a Depository in compliance with the conditions of Rule
17f-4 under the 1940 Act, as amended from time to time.
6.6. Reserved.
6.7. Eurodollar CDs. Any
Portfolio Securities which are Eurodollar CDs may be physically held by the
European branch of the U.S. banking institution that is the issuer of such
Eurodollar CD (a “European Branch”),
provided that
such Portfolio Securities are identified on the books of the Bank as belonging
to the Fund and that the books of the Bank identify the European Branch holding
such Portfolio Securities. Notwithstanding any other provision of this Agreement
to the contrary, except as stated in the first sentence of this subsection 6.7,
the Bank shall be under no other duty with respect to such Eurodollar CDs
belonging to the Fund.
6.8. Options and Futures
Transactions.
(a) Puts
and Calls Traded on Securities Exchanges, NASDAQ or
Over-the-Counter.
(i) The
Bank shall upon receipt of Proper Instructions take action as to put options
(“puts”) and
call options (“calls”) purchased or
sold (written) by the Fund regarding escrow or other arrangements (i) in
accordance with the provisions of any agreement entered into among the Bank, any
broker-dealer registered with the Financial Industry Regulatory Authority, Inc.
(“FINRA”), and
a Fund, relating to the compliance with the rules of the Options Clearing
Corporation and of any registered national securities exchange, or of any
similar organization or organizations.
(ii) Unless
another agreement requires it to do so, the Bank shall be under no duty or
obligation to see that the Fund has deposited or is maintaining adequate margin,
if required, with any broker in connection with any option, nor shall the Bank
be under duty or obligation to present such option to the broker for exercise
unless it receives Proper Instructions from the Fund. The Bank shall have no
responsibility for the legality of any put or call purchased or sold on behalf
of the Fund, the propriety of any such purchase or sale, or the adequacy of any
collateral delivered to a broker in connection with an option or deposited to or
withdrawn from a Segregated Account (as defined in subsection 6.9 below). The
Bank specifically, but not by way of limitation, shall not be under any duty or
obligation to: (i) periodically check or notify the Fund that the amount of such
collateral held by a broker or held in a Segregated Account is sufficient to
protect such broker or the Fund against any loss; (ii) effect the return of any
collateral delivered to a broker; or (iii) advise the Fund that any option it
holds, has or is about to expire. Such duties or obligations shall be the sole
responsibility of the Fund.
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(b) Puts,
Calls and Futures Traded on Commodities Exchanges
(i) The
Bank shall upon receipt of Proper Instructions take action as to puts, calls and
futures contracts (“Futures”) purchased
or sold by the Fund in accordance with the provisions of any agreement entered
into among the Fund, the Bank and a Futures Commission Merchant registered under
the Commodity Exchange Act, relating to compliance with the rules of the
Commodity Futures Trading Commission and/or any contract market, or any similar
organization or organizations, regarding account deposits in connection with
transactions by any Fund.
(ii) The
responsibilities of the Bank as to futures, puts and calls traded on commodities
exchanges, any Futures Commission Merchant account and the Segregated Account
shall be limited as set forth in subparagraph (a)(ii) of this Section 6.8 as if
such subparagraph referred to Futures Commission Merchants rather than brokers,
and Futures and puts and calls thereon instead of options.
6.9. Segregated Account.
The Bank shall upon receipt of Proper Instructions establish and maintain a
Segregated Account or Accounts for and on behalf of each Fund.
(a) Cash
and/or Portfolio Securities may be transferred into a Segregated Account upon
receipt of Proper Instructions in the following circumstances:
(i) in
accordance with the provisions of any agreement among the Fund, the Bank and a
broker-dealer registered under the Exchange Act and a member of the FINRA 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 Commodity Futures Trading
Commission or any registered contract market, or of any similar organizations
regarding escrow or other arrangements in connection with transactions by the
Fund;
(ii) for
the purpose of segregating cash or securities in connection with options
purchased or written by the Fund or commodity futures purchased or written by
the Fund;
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(iii) for
the deposit of liquid assets, such as cash, U.S. Government securities or other
high grade debt obligations, or liquid equity securities having a market value
(marked to market on a daily basis) at all times equal to not less than the
aggregate purchase price due on the settlement dates of all of the Fund’s then
outstanding forward commitment or “when-issued” agreements relating to the
purchase of Portfolio Securities and all the Fund’s then outstanding commitments
under reverse repurchase agreements entered into with broker-dealer
firms;
(iv) for
the purposes of compliance by the Fund with the procedures required by
Investment Company Act Release No. 10666, or any subsequent release or releases
of the Securities and Exchange Commission relating to the maintenance of
Segregated Accounts by registered investment companies;
(v) for
other proper Fund purposes, but only, in the case of this clause (v), upon
receipt of, in addition to Proper Instructions, a certified copy of a resolution
of the Board, or of the executive committee of the Board signed by an officer of
the Fund and certified by the Secretary or an Assistant Secretary, setting forth
the purpose or purposes of such Segregated Account and declaring such purposes
to be proper Fund purposes.
(b) Cash
and/or Portfolio Securities may be withdrawn from a Segregated Account pursuant
to Proper Instructions in the following circumstances:
(i) with
respect to assets deposited in accordance with the provisions of any agreements
referenced in (a)(i) or (a)(ii) above, in accordance with the provisions of such
agreements;
(ii) with
respect to assets deposited pursuant to (a)(iii) or (a)(iv) above, for sale or
delivery to meet the Fund’s obligations under outstanding forward commitment or
when-issued agreements for the purchase of Portfolio Securities and under
reverse repurchase agreements;
(iii) for
exchange for other liquid assets of equal or greater value deposited in the
Segregated Account;
(iv) to
the extent that the Fund’s outstanding forward commitment or when- issued
agreements for the purchase of portfolio securities or reverse repurchase
agreements are sold to other parties or the Fund’s obligations thereunder are
met from assets of the Fund other than those in the Segregated
Account;
(v) for
delivery upon settlement of a forward commitment or when-issued agreement for
the sale of Portfolio Securities; or
(vi) with
respect to assets deposited pursuant to (a)(v) above, in accordance with the
purposes of such account as set forth in Proper Instructions.
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6.10. Interest Bearing Call or
Time Deposits. The Bank shall, upon receipt of Proper Instructions
relating to the purchase by the Fund of interest-bearing fixed-term and call
deposits, transfer cash, by wire or otherwise, in such amounts and to such bank
or banks as shall be indicated in such Proper Instructions. The Bank shall
include in its records with respect to the assets of a Fund appropriate notation
as to the amount of each such deposit, the banking institution with which such
deposit is made (the “Deposit Bank”), and
shall retain such forms of advice or receipt evidencing the deposit, if any, as
may be forwarded to the Bank by the Deposit Bank. Such deposits shall be deemed
Portfolio Securities of the Fund and the responsibility of the Bank therefore
shall be the same as and no greater than the Bank’s responsibility in respect of
other Portfolio Securities of the Fund.
6.11. Transfer of
Securities. The Bank will transfer, exchange, deliver or release
Portfolio Securities held by it hereunder, insofar as such Securities are
available for such purpose, provided that the Bank will allow any transfer,
exchange, delivery or release under this Section only upon receipt of Proper
Instructions, which may be continuing instructions when deemed appropriate by
the parties. After receipt of such Proper Instructions, the Bank will transfer,
exchange, deliver or release Portfolio Securities only in the following
circumstances:
(a) Upon
sales of Portfolio Securities for the account of a Fund, against contemporaneous
receipt by the Bank of payment therefor in full, or against payment to the Bank
in accordance with generally accepted settlement practices and customs in the
jurisdiction or market in which the transaction occurs, each such payment to be
in the amount of the sale price shown in a broker’s confirmation of sale
received by the Bank before such payment is made, as confirmed in the Proper
Instructions received by the Bank before such payment is made;
(b) In
exchange for or upon conversion into other securities alone or other securities
and cash pursuant to any plan of merger, consolidation, reorganization, share
split-up, change in par value, recapitalization or readjustment or otherwise,
upon exercise of subscription, purchase or sale or other similar rights
represented by such Portfolio Securities, or for the purpose of tendering shares
in the event of a tender offer therefor, provided, however, that in the event of
an offer of exchange, tender offer, or other exercise of rights requiring the
physical tender or delivery of Portfolio Securities, the Bank shall have no
liability for failure to so tender in a timely manner unless such Proper
Instructions are received by the Bank at least two business days prior to the
date required for tender, and unless the Bank (or its agent or subcustodian
hereunder) has actual possession of such Security at least two business days
prior to the date of tender;
(c) Upon
conversion of Portfolio Securities pursuant to their terms into other
securities;
(d) For
the purpose of redeeming in-kind shares of the Fund upon authorization from the
Fund;
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(e) In
the case of option contracts owned by the Fund, for presentation to the
endorsing broker;
(f) When
such Portfolio Securities are called, redeemed or retired or otherwise become
payable;
(g) For
the purpose of effectuating the pledge of Portfolio Securities held by the Bank
in order to collateralize loans made to the Fund by any bank, including the
Bank; provided, however, that such Portfolio Securities will be released only
upon payment to the Bank for the account of the Fund of the moneys borrowed,
provided further, however, that in cases where additional collateral is required
to secure a borrowing already made, and such fact is made to appear in the
Proper Instructions, Portfolio Securities may be released for that purpose
without any such payment. In the event that any pledged Portfolio Securities are
held by the Bank, they will be so held for the account of the lender, and after
notice to the Fund from the lender in accordance with the normal procedures of
the lender and any loan agreement between the fund and the lender that an event
of deficiency or default on the loan has occurred, the Bank may deliver such
pledged Portfolio Securities to or for the account of the lender;
(h) for
the purpose of releasing certificates representing Portfolio Securities, against
contemporaneous receipt by the Bank of the fair market value of such security,
as set forth in the Proper Instructions received by the Bank before such payment
is made;
(i) for
the purpose of delivering securities lent by the Fund (a) to a bank or broker
dealer against receipt of collateral as agreed from time to time by the Fund on
behalf of the Portfolio, except that in connection with any loans for which
collateral is to be credited to the Bank’s account in the Book-Entry System, the
Bank will not be held liable or responsible for the delivery of securities owned
by the Portfolio prior to the receipt of such collateral or (b) to the lending
agent, or the lending agent’s custodian, in accordance with written Proper
Instructions (which may not provide for the receipt by the Bank of collateral
therefor) agreed upon from time to time by the Bank and the Fund;
(j) for
other authorized transactions of the Fund or for other proper Fund purposes;
provided that before making such transfer, the Bank will also receive Proper
Instructions; and
(k) upon
termination of this Agreement as hereinafter set forth pursuant to Section 8 and
Section 15 of this Agreement.
As to any
deliveries made by the Bank pursuant to this Section 6.11, securities or cash
receivable in exchange therefor shall be delivered to the Bank.
12
6A. Contractual
Settlement Services (Purchase / Sales).
6A.1 The
Bank shall, in accordance with the terms set out in this section, debit or
credit the appropriate cash account of each Portfolio in connection with (i) the
purchase of securities for such Portfolio, and (ii) proceeds of the sale of
securities held on behalf of such Portfolio, on a contractual settlement
basis.
6A.2 The
services described above (the “Contractual Settlement Services”) shall be
provided for such instruments and in such markets as the Bank may advise from
time to time. The Bank may terminate or suspend any part of the provision of the
Contractual Settlement Services under this Agreement at its sole discretion
immediately upon notice to the applicable Fund on behalf of each Portfolio,
including, without limitation, in the event of force majeure events affecting
settlement, any disorder in markets, or other changed external business
circumstances affecting the markets or the Fund.
6A.3 The
consideration payable in connection with a purchase transaction shall be debited
from the appropriate cash account of the Portfolio as of the time and date that
monies would ordinarily be required to settle such transaction in the applicable
market. The Bank shall promptly recredit such amount at the time that
the Portfolio or the Fund notifies the Bank by Proper Instruction that such
transaction has been canceled.
6A.4 With
respect to the settlement of a sale of securities, a provisional credit of an
amount equal to the net sale price for the transaction (the “Settlement Amount”)
shall be made to the account of the Portfolio as if the Settlement Amount had
been received as of the close of business on the date that monies would
ordinarily be available in good funds in the applicable market. Such
provisional credit will be made conditional upon the Bank having received Proper
Instructions with respect to, or reasonable notice of, the transaction, as
applicable; and the Bank or its agents having possession of the asset(s) (which
shall exclude assets subject to any third party lending arrangement entered into
by a Portfolio) associated with the transaction in good deliverable form and not
being aware of any facts which would lead them to believe that the transaction
will not settle in the time period ordinarily applicable to such transactions in
the applicable market.
6A.5. Simultaneously
with the making of such provisional credit, the Portfolio agrees that the Bank
shall have, and hereby grants to the Bank, a security interest in any property
at any time held for the account of the Portfolio to the full extent of the
credited amount, and each Portfolio hereby pledges, assigns and grants to the
Bank a continuing security interest and a lien on any and all such property
under the Bank’s possession, in accordance with the terms of this
Agreement. In the event that the applicable Portfolio fails to
promptly repay any provisional credit, the Bank shall have all of the rights and
remedies of a secured party under the Uniform Commercial Code of The
Commonwealth of Massachusetts.
6A.6 The
Bank shall have the right to reverse any provisional credit or debit given in
connection with the Contractual Settlement Services at any time when the Bank
believes, in its reasonable judgment, that such transaction will not settle in
accordance with its terms or amounts due pursuant thereto, will not be
collectable or where the Bank has not been provided Proper Instructions with
respect thereto, as applicable, and the Portfolio shall be responsible for any
costs or liabilities resulting from such reversal. Upon such
reversal, a sum equal to the credited or debited amount shall become immediately
payable by the Portfolio to the Bank and may be debited from any cash account
held for benefit of the Portfolio.
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6A.7 In
the event that the Bank is unable to debit an account of the Portfolio, and the
Portfolio fails to pay any amount due to the Bank at the time such amount
becomes payable in accordance with this Agreement, (i) the Bank may charge the
Portfolio for costs and expenses associated with providing the provisional
credit, including without limitation the cost of funds associated therewith,
(ii) the amount of any accrued dividends, interest and other distributions with
respect to assets associated with such transaction may be set off against the
credited amount, (iii) the provisional credit and any such costs and expenses
shall be considered an advance of cash for purposes of the Agreement and (iv)
the Bank shall have the right to setoff against any property and to sell,
exchange, convey, transfer or otherwise dispose of any property at any time held
for the account of the Portfolio to the full extent necessary for the Bank to
make itself whole.
7. Redemptions. In the
case of payment of assets of a Fund held by the Bank in connection with
redemptions and repurchases by the Fund of outstanding common shares or
beneficial interests, the Bank will rely on notification by the Fund’s transfer
agent of receipt of a request for redemption and certificates, if issued, in
proper form for redemption before such payment is made. Payment shall be made in
accordance with such procedures and controls as are mutually agreed upon from
time to time between the Fund and the Bank, but only from assets available for
said purpose.
8. Reserved.
9. Actions of Bank Without
Prior Authorization. Notwithstanding anything herein to the contrary,
unless and until the Bank receives Proper Instructions to the contrary, the Bank
will take the following actions without prior authorization or instruction of
the Fund or the transfer agent:
9.1. Endorse
for collection and collect on behalf of and in the name of the Fund all checks,
drafts, or other negotiable or transferable instruments or other orders for the
payment of money received by it for the account of the Fund and hold for the
account of the Fund all income, dividends, interest and other payments or
distributions of cash with respect to the Portfolio Securities held
thereunder;
9.2. Present
for payment all coupons and other income items held by it for the account of the
Fund which call for payment upon presentation and hold the cash received by it
upon such payment for the account of the Fund;
9.3. Receive
and hold for the account of the Fund all securities received as a distribution
on Portfolio Securities as a result of a stock dividend, share split-up,
reorganization, recapitalization, merger, consolidation, readjustment,
distribution of rights and similar securities issued with respect to any
Portfolio Securities held by it hereunder.
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9.4. Execute
as agent on behalf of the Fund all necessary ownership and other certificates
and affidavits required by the Internal Revenue Code or the regulations of the
Treasury Department issued thereunder, or by the laws of any state, now or
hereafter in effect, inserting the Fund’s name on such certificates as the owner
of the securities covered thereby, to the extent it may lawfully do so and as
may be required to obtain payment in respect thereof. The Bank will execute and
deliver such certificates in connection with Portfolio Securities delivered to
it or by it under this Agreement as may be required under the provisions of the
Internal Revenue Code and any Regulations of the Treasury Department issued
thereunder, or under the laws of any State;
9.5. Present
for payment all Portfolio Securities which are called, redeemed, retired or
otherwise become payable, and hold cash received by it upon payment for the
account of the Fund;
9.6. Exchange
interim receipts or temporary securities for definitive securities;
and
9.7
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 applicable Portfolio.
10. Collections and
Defaults. The Bank will use reasonable efforts to collect any funds which
may to its knowledge become collectible arising from Portfolio Securities,
including dividends, interest and other income, and to transmit to the
appropriate Fund notice actually received by it of any call for redemption,
offer of exchange, right of subscription, reorganization or other proceedings
affecting such Securities. If Portfolio Securities upon which such income is
payable are in default or payment is refused after due demand or presentation,
the Bank will notify the appropriate Fund in writing of any default or refusal
to pay within two business days from the day on which it receives knowledge of
such default or refusal. The Bank shall credit income to the appropriate
Portfolio as such income is received or in accordance with the Bank’s then
current payable date income schedule. Any credit to the appropriate
Portfolio in advance of receipt may be reversed when the Bank determines that
payment will not occur in due course and the Portfolio may be charged at the
Bank’s applicable rate for time credited. Income due each Portfolio
on securities loaned pursuant to the provisions of Section 6.11(i) shall be the
responsibility of the applicable Fund. The Bank 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 Bank of the income to which the Portfolio is properly
entitled.
15
11. Maintenance of Records and
Accounting Services. The Bank will prepare and maintain records with
respect to transactions for which the Bank is responsible pursuant to the terms
and conditions of this Agreement, and in compliance with the applicable rules
and regulations of the 1940 Act. The books and records pertaining to a Fund that
are in possession of the Bank shall be the property of the Fund. The books and
records of the Bank pertaining to its actions under this Agreement and reports
by the Bank or its independent accountants concerning its accounting system,
procedures for safeguarding securities and internal accounting controls will be
open to inspection and audit at all times during the Bank’s normal business
hours, upon reasonable notice, by duly authorized officers, employees, agents or
independent auditors of the appropriate Fund and employees and agents of the
U.S. Securities and Exchange Commission. The books and records relating to a
Fund will be preserved by the Bank in the manner and in accordance with the
applicable rules and regulations under the 1940 Act. The Bank shall surrender
these books and records to the Fund promptly upon request. Upon reasonable
request of the Fund, the Bank shall, during the term of this agreement, provide
copies of any books and records to the Fund or the Fund’s authorized
representative at the Fund’s expense. The Bank also shall, at the Fund’s
request, supply the Fund with a tabulation of securities owned by each Portfolio
and held by the Bank and shall, when requested to do so by the Fund and for such
compensation as shall be agreed upon between the Fund and the Bank, include
certificate numbers in such tabulations.
The Bank
shall assist generally in the preparation of reports to shareholders and others,
audits of accounts, and other ministerial matters of like nature.
12. Interpretive and Additional
Provisions; Service Levels.
12.1. Interpretive and Additional
Provisions. In connection with the operation of this
Agreement, the Bank and each 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; provided that no such
interpretive or additional provisions shall contravene any applicable federal or
state regulations or any provision of a Fund’s governing
documents. Any agreement as to interpretive or additional provisions
shall be in a writing signed by the Bank and each applicable Fund.
Unless the parties agree otherwise in writing, no interpretive or
additional provisions made as provided in the preceding sentence shall be deemed
to be an amendment of this Agreement.
12.2. Service Levels.
The Fund and the Bank may from time to time, in good faith, agree on
certain performance measures by which the Bank is expected to provide the
services contemplated by this Agreement (“Service Level
Documents”). The Service Level Documents are designed to provide
metrics and other information which may be utilized by the parties to help
measure performance.
13. Duties of the
Bank.
13.1. Performance of Duties and
Standard of Care. The Bank shall be held to the exercise of reasonable
care in carrying out the provisions of this Agreement. In performing its duties
hereunder and any other duties listed on any Schedule hereto, if any, the Bank
will be entitled to receive and act upon the written advice of independent
counsel of its own selection, which may be counsel for a Fund, and will be
without liability for any action taken or thing done or omitted to be done in
accordance with this Agreement in good faith in conformity with such
advice.
16
The Bank
will be under no duty or obligation to inquire into and will not be liable
for:
(a) the
validity of the issue of any Portfolio Securities purchased by or for the Fund,
the legality of the purchases thereof or the propriety of the price incurred
therefor;
(b) the
legality of any sale of any Portfolio Securities by or for the Fund or the
propriety of the amount for which the same are sold;
(c) the
legality of an issue or sale of any common shares of the Fund or the sufficiency
of the amount to be received therefor;
(d) the
legality of the repurchase of any common shares of the Fund or the propriety of
the amount to be paid therefor;
(e) the
legality of the declaration of any dividend by the Fund or the legality of the
distribution of any Portfolio Securities as payment in kind of such dividend;
and
(f) any
property or moneys of the Fund unless and until received by it, and any such
property or moneys delivered or paid by it pursuant to the terms
hereof.
Moreover,
the Bank will not be under any duty or obligation to ascertain whether any
Portfolio Securities at any time delivered to or held by it for the account of
the Fund are such as may properly be held by the Fund under the provisions of
its Articles, By-laws, any federal or state statutes or any rule or regulation
of any governmental agency.
13.2. Subcustodians with Respect
to Property of the Fund Held in the United States. Upon written
notification to the applicable Fund, the Bank may in its own discretion appoint
(and may at any time remove) any other bank or trust company, which is itself
qualified under Section 17(f)(1) of the 1940 Act to act as a custodian, as its
subcustodian to carry out such custodial functions under this Agreement with
respect to property of the Fund held in the United States; provided, however,
that the Bank shall be responsible for the acts and omissions of such custodian
as if performed by the Bank hereunder.
13.3. Upon
receipt of Proper Instructions, the Bank may employ subcustodians selected by or
at the direction of a Fund, provided that any such subcustodian meets at least
the minimum qualifications required by Section 17(f)(1) of the 1940 Act to act
as a custodian of the Fund’s assets with respect to property of the Fund held in
the United States. The Bank shall have no liability to the Fund or any other
person by reason of any act or omission of any such subcustodian and the Fund
shall indemnify the Bank and hold it harmless from and against any and all
actions, suits and claims, arising out of the performance of any subcustodian.
Fund shall pay all fees and expenses of any subcustodian.
17
13.4. Duties of the Bank with
Respect to Property of the Fund Held Outside of the United
States.
(a) Appointment of Foreign
Custody Manager.
(i) If
a Fund has appointed the Bank Foreign Custody Manager (as that term is defined
in Rule 17f-5 under the 1940 Act), the Bank’s duties and obligations with
respect to the Fund’s Portfolio Securities and other assets maintained outside
the United States shall be, to the extent not set forth herein, as set forth in
the Delegation Agreement between the Fund and the Bank (the “Delegation
Agreement”).
(ii) If
a Fund has appointed any other person or entity Foreign Custody Manager, the
Bank shall act only upon Proper Instructions from the Fund with regard to any of
the Fund’s Portfolio Securities or other assets held or to be held outside of
the United States, and the Bank shall be without liability for any Claim (as
that term is defined in Section 14 hereof) arising out of maintenance of the
Fund’s Portfolio Securities or other assets outside of the United States. The
Fund also agrees that it shall enter into a written agreement with such Foreign
Custody Manager that shall obligate such Foreign Custody Manager to provide to
the Bank in a timely manner all information required by the Bank in order to
complete its obligations hereunder. The Bank shall not be liable for any Claim
arising out of the failure of such Foreign Custody Manager to provide such
information to the Bank.
(b) Segregation of
Securities. The Bank shall identify on its books as belonging to the Fund
the Foreign Portfolio Securities held by each foreign sub-custodian (each an
“Eligible Foreign
Custodian”) selected by the Foreign Custody Manager, subject to receipt
by the Bank of the necessary information from such Eligible Foreign Custodian if
the Foreign Custody Manager is not the Bank.
(c) Access of Independent
Accountants of the Fund. If the Bank is the Fund’s Foreign Custody
Manager, upon request of the Fund, the Bank will use its best efforts to arrange
for the independent accountants of the Fund to be afforded access to the books
and records of any foreign banking institution employed as an Eligible Foreign
Custodian insofar as such books and records relate to the performance of such
foreign banking institution with regard to the Fund’s Portfolio Securities and
other assets.
(d) Reports by Bank. If
the Bank is the Fund’s Foreign Custody Manager, the Bank will supply to the Fund
the reports required under the Delegation Agreement.
(e) Transactions in Foreign
Custody Account. Transactions with respect to the assets of a Fund held
by an Eligible Foreign Custodian shall be effected pursuant to Proper
Instructions from the Fund to the Bank and shall be effected in accordance with
the applicable agreement between the Foreign Custody Manager and such Eligible
Foreign Custodian.
18
Notwithstanding
any provision of this Agreement to the contrary, settlement and payment for
Foreign Portfolio Securities received for the account of a Fund and delivery of
Foreign Portfolio Securities maintained for the account of the Fund may be
effected in accordance with the customary established securities trading or
securities processing practices and procedures in the jurisdiction or market in
which the transaction occurs, including, without limitation, delivering
securities to the purchaser thereof or to a dealer therefor (or an agent for
such purchaser or dealer) against a receipt with the expectation of receiving
later payment for such securities from such purchaser or dealer.
In
connection with any action to be taken with respect to the Foreign Portfolio
Securities held hereunder, including, without limitation, the exercise of any
voting rights, subscription rights, redemption rights, exchange rights,
conversion rights or tender rights, or any other action in connection with any
other right, interest or privilege with respect to such Securities
(collectively, the “Rights”), the Bank
shall promptly transmit to the appropriate Fund such information in connection
therewith as is made available to the Bank by the Eligible Foreign Custodian,
and shall promptly forward to the applicable Eligible Foreign Custodian any
instructions, forms or certifications with respect to such Rights, and any
instructions relating to the actions to be taken in connection therewith, as the
Bank shall receive from the Fund pursuant to Proper Instructions.
Notwithstanding the foregoing, the Bank shall have no further duty or obligation
with respect to such Rights, including, without limitation, the determination of
whether the Fund is entitled to participate in such Rights under applicable U.S.
and foreign laws, or the determination of whether any action proposed to be
taken with respect to such Rights by the Fund or by the applicable Eligible
Foreign Custodian will comply with all applicable terms and conditions of any
such Rights or any applicable laws or regulations, or market practices within
the market in which such action is to be taken or omitted.
(f) Tax Law. The Bank
shall have no responsibility or liability for any obligations now or hereafter
imposed on the Fund or the Bank as custodian of the Fund by the tax laws of any
jurisdiction, and it shall be the responsibility of the Fund to notify the Bank
of the obligations imposed on the Fund or the Bank as the custodian of the Fund
by the tax law of any non-U.S. jurisdiction, including responsibility for
withholding and other taxes, assessments or other governmental charges,
certifications and governmental reporting. The sole responsibility of the
Eligible Foreign Custodian with regard to such tax law shall be to use
reasonable efforts to assist the Fund with respect to any claim for exemption or
refund under the tax law of jurisdictions for which the Fund has provided such
information.
13.5. Insurance. The Bank
shall at all times maintain insurance coverage adequate for the nature of its
operations. Upon the Fund’s request, the Bank shall provide a copy of
its most current Memorandum of Insurance summarizing its insurance coverage. The
Bank shall notify the Funds promptly of any material errors or omissions,
interruptions in, or delay or unavailability of the Bank’s abilities to
safeguard and hold the securities and cash of a Fund in accordance with this
Agreement as promptly as practicable, and proceed to correct the same as soon as
is reasonably possible.
19
13.6. Advances by the Bank.
The Bank may, in its sole discretion, advance funds on behalf of a Fund to make
any payment permitted by this Agreement upon receipt of any proper authorization
required by this Agreement for such payments by the Fund. Should such a payment
or payments, with advanced funds, result in an overdraft (due to insufficiencies
of the Fund’s account with the Bank, or for any other reason) this Agreement
deems any such overdraft or related indebtedness a loan made by the Bank to the
Fund payable on demand. Such overdraft shall bear interest at the current rate
charged by the Bank for such loans unless the Fund shall provide the Bank with
agreed upon compensating balances. The Fund agrees that the Bank shall have a
continuing lien and security interest to the extent of any overdraft or
indebtedness on the part of a Portfolio and to the extent required by law, in
and to any property at any time held by it for the Portfolio’s benefit or in
which the Portfolio has an interest and which is then in the Bank’s possession
or control (or in the possession or control of any third party acting on the
Bank’s behalf). Such payment liability and the concomitant liens and security
interests are not permitted to exceed a value equal to 331/3% of a
Portfolio’s total assets. The Fund authorizes the Bank, in the Bank’s sole
discretion, at any time to charge any overdraft or indebtedness, together with
interest due thereon, against any balance of account standing to the credit of
the Fund on the Bank’s books.
13.7. Fees and Expenses of the
Bank. For the services rendered by the Bank hereunder, each Fund on
behalf of a Portfolio will pay to the Bank such fees at such rate as shall be
agreed upon in writing by the parties from time to time. The Fund shall also pay
or reimburse the Bank from time to time for all necessary proper disbursements,
expenses and charges made or incurred by the Bank in the performance of this
Agreement (including any duties listed on any Schedule hereto, if any), as
agreed upon in writing by the parties from time to time. The Fund shall also pay
or reimburse the Bank from time to time for any indemnities for any loss,
liabilities or expense to the Bank as provided herein. The Bank will
also be entitled to reimbursement by the Fund for all reasonable expenses,
including but not limited to taxes and other securities transfer expenses,
incurred in conjunction with termination of this Agreement and any conversion or
transfer work done in connection therewith; provided, however, that in
connection with termination by a Fund due to a breach of this Agreement by the
Bank, the Bank will not be reimbursed for its expenses incurred in conjunction
with conversion or transfer of the Fund’s records.
13.8. Cooperation with Fund’s
Independent Public Accountants. The Bank shall cooperate with each Fund’s
independent public accountants and shall take all reasonable action in the
performance of its obligations under this Agreement to assure that all necessary
information is made available to the accountant for the expression of their
unqualified opinion, including but not limited to the opinion included in the
Funds’ registration statements on Form N-1A, and periodic reports made on Forms
N-SAR and N-CSR, and any other reports to the SEC and for any requirement of the
SEC.
13.9. Reports to Fund by Bank’s
Independent Public Accountants. The Bank shall provide each Fund, at all
times as a Fund may reasonably require, with reports from the Bank’s independent
public accountant on the Bank’s accounting systems and internal accounting
controls and procedures for safeguarding securities and cash of the Fund,
including securities deposited and/or maintained in a Securities Depository or
Book-Entry System, relating to the services the Bank provides under this
Agreement and generally made available to the Bank’s clients. These reports
shall be of sufficient scope and in sufficient detail as a Fund may reasonably
require to provide reasonable assurance that the examination would disclose any
material inadequacies and, if there are no material inadequacies, the reports
shall so state.
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14. Limitation of
Liability.
14.1. Notwithstanding
anything in this Agreement to the contrary, in no event shall the Bank or any of
its officers, directors or employees (collectively, the “Bank Indemnified
Parties”) be liable to the Fund or any third party, and the Fund shall
indemnify and hold the Bank and the Bank Indemnified Parties harmless from and
against any and all loss, damage, liability, actions, suits, claims, and
reasonable costs and expenses, including reasonable legal fees, (a “Claim”) arising as a
result of any act or omission of the Bank or any Bank Indemnified Party under
this Agreement, except to the extent any such Claim results from the negligence,
willful misfeasance, bad faith or reckless disregard of its duties on the part
of the Bank or any Bank Indemnified Party. Without limiting the foregoing,
neither the Bank nor the Bank Indemnified Parties shall be liable for, and the
Bank and the Bank Indemnified Parties shall be indemnified against, any Claim
arising as a result of:
(a) Any
act or omission by the Bank or any Bank Indemnified Party in good faith reliance
upon the terms of this Agreement, any Officer’s Certificate, Proper
Instructions, resolution of the Board, telegram, telecopier, notice, request,
certificate or other instrument reasonably believed by the Bank to
genuine;
(b) Any
act or omission of any subcustodian selected by or at the direction of the
Fund;
(c) Any
act or omission of any Foreign Custody Manager other than the Bank or any act or
omission of any Eligible Foreign Custodian if the Bank is not the Foreign
Custody Manager;
(d) Any
Corporate Action, distribution or other event related to Portfolio Securities
which, at the direction of the Fund, have not been registered in the name of the
Bank or its nominee;
(e) Any
Corporate Action requiring a Response for which the Bank has not received Proper
Instructions or obtained actual possession of all necessary Securities, consents
or other materials by 5:00 p.m. on the date specified as the Response Deadline;
or
(f) Any
act or omission of any European Branch of a U.S. banking institution that is the
issuer of Eurodollar CDs in connection with any Eurodollar CDs held by such
European Branch.
14.2. The
Bank agrees to indemnify and hold harmless each Fund and its affiliates and
their Directors/Trustees, officers and employees (“Fund Indemnified
Parties”) from and against any and all Claims arising as a result of any
act or omission of the Bank or any Bank Indemnified Party under this Agreement
to the extent any such Claim results from the negligence, willful misfeasance,
bad faith or reckless disregard of its duties on the part of the Bank or any
Bank Indemnified Party.
21
14.3. Notwithstanding
anything to the contrary in this Agreement, neither Party shall be liable to the
other party or any third party for lost profits or lost revenues or any special,
consequential, punitive or incidental damages of any kind whatsoever in
connection with this Agreement or any activities hereunder.
14.4. The
obligations set forth in this Section 14 shall survive the termination of this
Agreement.
14A. Conduct of
Claims.
14A.1. In
connection with the indemnification provided by the Bank to the Fund pursuant to
Section 14.2 as well as the indemnification provided by the Fund to the Bank
pursuant to Section 14.1, the indemnified party may make claims for
indemnification by giving written notice thereof to the indemnifying party after
it receives notice of a claim, but the failure to do so shall not relieve the
indemnifying party from any liability except to the extent that it is materially
prejudiced by the failure or delay in giving such notice. Such notice
shall summarize the bases for the claim for indemnification and any claim or
liability being asserted.
14A.2. Within
fifteen (15) days after receiving any such notice, the indemnifying party shall
give written notice to the indemnified party stating whether it disputes the
claim for indemnification and whether it will defend against any claim at its
own cost and expense. If the indemnifying party fails to give notice
that it disputes an indemnification claim within fifteen (15) days after the
receipt of notice thereof, it shall be deemed to have accepted and agreed to
indemnify the claim.
14A.3. The
indemnifying party shall be entitled to direct the defense against a claim with
counsel selected by it (subject to the consent of the indemnified party, which
consent shall not be unreasonably withheld) as long as the indemnifying party is
conducting a good faith and diligent defense. The indemnified party
shall at all times have the right to fully participate in the defense of a claim
at its own expense directly or through counsel; provided, however, that if
the named parties to the action or proceeding include both the indemnifying
party and the indemnified party, and the indemnified party is advised that
representation of both parties by the same counsel would be inappropriate under
applicable standards of professional conduct, the indemnified party may engage
separate counsel at the expense of the indemnifying party. If no such
notice of intent to dispute and defend a claim is given by the indemnifying
party, or if such good faith and diligent defense is not being or ceases to be
conducted by the indemnifying party, the indemnified party shall have the right,
at the expense of the indemnifying party, to undertake the defense of such claim
(with counsel selected by the indemnified party), and to compromise or settle
it, exercising reasonable business judgment. If the claim is one that
by its nature cannot be defended solely by the indemnifying party, then the
indemnified party shall make available such information and assistance as the
indemnifying party may reasonably request and shall cooperate with the
indemnifying party in such defense, at the expense of the indemnifying
party. The indemnifying party shall have the right to settle any
third-party claim without the consent of the indemnified party provided that such settlement
(i) fully releases the indemnified party from any liability and provides no
admission of wrongdoing, and (ii) does not subject the indemnified party to any
additional obligation, whether financial or otherwise. In the event
that any such settlement does not meet the requirements of (i) and (ii) above,
then the indemnified party must consent to such settlement in writing, which
consent shall not be unreasonably withheld, conditioned or
delayed.
22
15. Termination.
15.1. The
term of this Agreement shall be six (6) years commencing upon the date hereof
(the “Initial
Term”), unless earlier terminated as provided herein. After the
expiration of the Initial Term, the term of this Agreement shall automatically
renew for successive one-year terms (each a “Renewal Term”) unless
written notice of non-renewal (due to a Party’s violation of a material
provision of the contract or for any other reason) is delivered by the
non-renewing party to the other party no later than ninety days if a Fund is the
non-renewing party and one hundred eighty days if Bank is the non-renewing party
prior to the expiration of the Initial Term or any Renewal Term, as the case may
be.
15.2. Either
party hereto may terminate this Agreement prior to the expiration of the Initial
Term or any Renewal Term by providing thirty (30) days notice: (i) in the event
of the other party’s material breach of a material provision of this Agreement
that the other party has either (a) failed to cure or (b) failed to establish a
remedial plan to cure that is reasonably acceptable, within 60 days’ written
notice of such breach, or (ii) in the event of the appointment of a conservator
or receiver for the other party or upon the happening of a like event to the
other party at the direction of an appropriate agency or court of competent
jurisdiction. Upon termination of this Agreement pursuant to this paragraph with
respect to any Fund or Portfolio, the applicable Fund shall pay the Bank its
compensation due and shall reimburse the Bank for its costs, expenses and
disbursements through the date of such termination. The Fund and the Bank may
from time to time, in good faith, agree in writing to certain additional
termination provisions.
15.3. In
the event of the termination of this Agreement, the Bank will immediately upon
receipt of Proper Instructions, commence and prosecute diligently to completion
the transfer of all cash and the delivery of all Portfolio Securities duly
endorsed and all records maintained under Section 11 to the successor custodian
when appointed by the Fund. The obligation of the Bank, upon receipt of Proper
Instructions, to deliver and transfer over the assets of the Fund held by it
directly to such successor custodian will commence as soon as such successor is
appointed and will continue until completed as aforesaid. If the Fund does not
select a successor custodian within ninety (90) days from the date of delivery
of notice of termination the Bank may, subject to the provisions of subsection
15.4, deliver the Portfolio Securities and cash of the Fund held by the Bank to
a bank or trust company of the Bank’s own selection which meets the
requirements of Section 17(f)(1) of the 1940 Act, doing business in New York,
New York or Boston, Massachusetts, and has by its last published
reports reported capital, surplus and undivided profits aggregating
not less than $25,000,000, to be held as the property of the Fund under terms
similar to those on which they were held by the Bank, whereupon such bank or
trust company so selected by the Bank will become the successor custodian of
such assets of the Fund with the same effect as though selected by the Board.
Thereafter, the Bank shall be released from any and all obligations under this
Agreement, except for any obligations arising prior to the date of delivery of
such Portfolio Securities and cash and those obligations under Section
14.
23
15.4. Prior
to the expiration of ninety (90) days after notice of termination has been
given, the Fund may furnish the Bank with an order of the Fund advising that a
successor custodian cannot be found willing and able to act upon reasonable and
customary terms and that the Fund will be liquidated or will function without a
custodian for the assets of the Fund held by the Bank. In that event the Bank
will deliver the Portfolio Securities and cash of the Fund held by it, subject
as aforesaid, in accordance with one of such alternatives, upon receipt of
Proper Instructions. Thereafter, the Bank shall be released from any and all
obligations under this Agreement, except for any obligations arising prior to
the date of delivery of such Portfolio Securities and cash and those obligations
under Section 14.
15.5. At
any time after the termination of this Agreement, the Fund may, upon written
request, have reasonable access to the records of the Bank relating to its
performance of its duties as custodian.
15.6. Notwithstanding
the foregoing, no Fund shall terminate this Agreement in contravention of any
applicable federal or state regulations, or any provision of such Fund’s
Governing Documents.
16. Confidentiality. The
parties hereto agree that each shall treat confidentially all information
provided by each party to the other party regarding its business and
operations. All confidential information provided by a party hereto
shall be used by any other party hereto solely for the purpose of rendering or
receiving services pursuant to this Agreement and, except as may be required in
carrying out this Agreement, shall not be disclosed to any third
party. The foregoing shall not be applicable to any information (i)
that is publicly available when provided or thereafter becomes publicly
available, other than through a breach of this Agreement, or that is
independently derived by any party hereto without the use of any information
provided by the other party hereto in connection with this Agreement, (ii) that
is required in any legal or regulatory proceeding, investigation, audit,
examination, subpoena, civil investigative demand or other similar process, or
by operation of law or regulation, or (iii) where the party seeking to disclose
has received the prior written consent of the party providing the information,
which consent shall not be unreasonably withheld. Notwithstanding
anything herein to the contrary, the Bank and its affiliates may report and use
nonpublic portfolio holdings information of its clients, including a Fund or
Portfolio, on an aggregated basis with all or substantially all other client
information and without specific reference to any Fund or
Portfolio.
17. Regulation
GG. Each Fund hereby represents and warrants that it does not
engage in an “Internet gambling business,” as such term is defined in Section
233.2(r) of Federal Reserve Regulation GG (12 CFR 233) (“Regulation
GG”). Each Fund hereby covenants and agrees that it shall not
engage in an Internet gambling business. In accordance with
Regulation GG, each Fund is hereby notified that “restricted transactions,” as
such term is defined in Section 233.2(y) of Regulation GG, are prohibited in any
dealings with the Bank pursuant to this Agreement or otherwise between or among
any party hereto.
24
18. Data Privacy.
The Bank will implement and maintain a written information security program that
contains appropriate security measures to safeguard the personal information of
the Funds’ shareholders, employees, directors and/or officers that the Bank
receives, stores, maintains, processes or otherwise accesses in connection with
the provision of services hereunder. For these purposes, “personal
information” shall mean (i) an individual’s name (first initial and last name or
first name and last name), address or telephone number plus (a) social
security number, (b) drivers license number, (c) state identification card
number, (d) debit or credit card number, (e) financial account number or (f)
personal identification number or password that would permit access to a
person’s account or (ii) any combination of the foregoing that would allow a
person to log onto or access an individual’s account. Notwithstanding the
foregoing “personal information” shall not include information that is lawfully
obtained from publicly available information, or from federal, state or local
government records lawfully made available to the general public.
17. Representations and
Warranties. Each of the Bank and the Funds hereby represents
and warrants to the other parties hereto that (a) it is duly incorporated or
organized and is validly existing in good standing in its jurisdiction of
incorporation or organization; (b) it has the requisite power and authority
under applicable law and its governing documents to enter into and perform this
Agreement; (c) all requisite proceedings, if any, have been taken to authorize
it to enter into and perform this Agreement; (d) this Agreement constitutes its
legal, valid, binding and enforceable agreement; and (e) its entrance into this
Agreement shall not cause a material breach or be in material conflict with any
other agreement or obligation of such party or any law or regulation applicable
to it.
18. Notices. Any notice
or other instrument in writing authorized or required by this Agreement to be
given to either party hereto will be sufficiently given if addressed to such
party and delivered via (i) United States Postal Service registered mail, (ii)
telecopier with written confirmation, (iii) hand delivery with signature to such
party at its office at the address set forth below, namely:
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(a)
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In
the case of notices sent to the Fund
to:
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MainStay
Group of Funds
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
Treasurer and Principal Accounting Officer of the MainStay Group of
Funds
with a
copy to:
Secretary
and Chief Legal Officer of the MainStay Group of Funds
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(b)
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In
the case of notices sent to the Bank
to:
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State
Street Bank and Trust Company
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: MainStay
Group of Funds Client Manager
25
With a
copy to:
State
Street Bank and Trust Company
▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
Senior Managing Counsel, US Mutual Funds Legal Division
or at
such other place as such party may from time to time designate in
writing.
19. Amendments. This
Agreement may not be altered or amended, except by an instrument in writing,
executed by both parties.
20. Parties. This
Agreement will be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and assigns; provided, however, that this
Agreement will not be assignable by the Fund without the written consent of the
Bank or by the Bank without the written consent of the Fund, authorized and
approved by its Board; and provided further that termination proceedings
pursuant to Section 15 hereof will not be deemed to be an assignment within the
meaning of this provision.
21. Governing Law. This
Agreement and all performance hereunder will be governed by the laws of the
Commonwealth of Massachusetts, without regard to conflict of laws
provisions.
22. Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original, but such counterparts shall, together, constitute only
one instrument.
23. Entire Agreement.
This Agreement, together with its Appendices, constitutes the sole and entire
agreement between the parties relating to the subject matter herein and does not
operate as an acceptance of any conflicting terms or provisions of any other
instrument and terminates and supersedes any and all prior agreements and
undertakings between the parties relating to the subject matter
herein.
24. Several Obligations of the
Portfolios. This Agreement is an agreement entered into between the Bank
and each Fund with respect to the Fund’s respective Portfolios. With respect to
any obligation of a Fund on behalf of any Portfolio arising out of this
Agreement, the Bank shall look for payment or satisfaction of such obligation
solely to the assets of the Portfolio to which such obligation relates as though
the Bank had separately contracted with such Fund by separate written instrument
with respect to each Portfolio.
25. Fund Disclaimer. It
is expressly agreed that the obligations of the Funds hereunder shall not be
binding upon any of their Directors/Trustees, shareholders, nominees, officers,
agents or employees personally, but shall bind only the property or assets of
the applicable Fund, as the case may be. The execution and delivery of this
Agreement has been authorized by the Directors/Trustees, and this Agreement has
been signed and delivered by an authorized officer of the Funds, acting as such,
and neither such authorization by the Directors/Trustees nor such execution and
delivery by such officer shall be deemed to have been made by any of them
individually or to impose any liability on any of them personally, but shall
bind only the property or assets of the Funds, as the case may be, as provided
in the Funds’ respective organizational documents. With respect to any Fund that
is organized as a Massachusetts business trust, a copy of such Fund’s Agreement
and Declaration of Trust establishing the Fund is on file with the Secretary of
State of The Commonwealth of Massachusetts.
26
26. Business Recovery.
The Bank represents and warrants that it has and will continue to maintain and
periodically test and update a commercially reasonable continuity and business
recovery program for the protection of information, data and assets of and
relevant customers including the Funds. Upon reasonable request, the Bank shall
discuss with senior management of the Funds any business continuity/disaster
recovery plan of the Bank and/or provide a high-level presentation summarizing
such plan.
27. Additional
Funds. In the event that any registered investment company in
addition to those executing this Agreement on the signature page hereto desires
to have the Bank render services as custodian under the terms hereof, it shall
so notify the Bank in writing, and if the Bank agrees to provide such services,
such registered investment company shall become a Fund hereunder and be bound by
all terms and conditions and provisions hereof including, without limitation,
the representations and warranties set forth in Section 17. The
Bank’s agreement to provide such services shall not be unreasonably
withheld.
28. Additional
Portfolios. In the event that any Fund establishes one or more
portfolios in addition to those set forth on Appendix A hereto with respect to
which it desires to have the Bank render services as custodian under the terms
hereof, it shall so notify the Bank in writing, and if the Bank agrees to
provide such services, such portfolios shall become a Portfolio
hereunder. The Bank’s agreement to provide such services shall not be
unreasonably withheld.
29. Force Majeure.
Notwithstanding anything otherwise to the contrary in this Agreement, no party
shall be liable to the other for any loss or liability arising from events or
circumstances beyond the reasonable control of such party, including, without
limitation, any acts of God, earthquakes, fires, floods, storms or other
disturbances of nature, epidemics, strikes, riots, nationalization,
expropriation, currency restrictions, acts of war, civil war or terrorism,
insurrection, nuclear fusion, fission or radiation, the interruption, loss or
malfunction of utilities, transportation or computers (hardware or software) and
computer facilities, the unavailability of energy sources and other similar
happenings or events, except to the extent that any such loss or liability
results from the failure of the Bank to (a) maintain a commercially reasonable
business recovery program, and (b) act reasonably to mitigate, as soon as
practicable, the specific occurrence or event.
30. Use of Name. Neither
party shall use the name of the other in any prospectus, sales literature or
other material in a manner not approved by the other party prior thereto in
writing; provided however, that the approval of a party shall not be required
for any use of its name or that of its affiliates which merely refers in
accurate and factual terms to its appointment hereunder or which is required by
the Securities and Exchange Commission or any state securities authority or any
other appropriate regulatory, governmental or judicial authority; provided
further, that in no event shall such approval be unreasonably withheld or
delayed.
27
31. Investments in Loans.
The following provisions shall apply to any Portfolio holding loans, including
but not limited to bank loans:
(a) The
Bank shall physically hold at such premises and under such conditions as the
Bank may determine in its sole discretion each “Loan File” (as hereinafter
defined) from time to time delivered or caused to be delivered to the Bank by a
Portfolio, and shall segregate, keep and maintain the Loan Files for such
Portfolio separate and apart from those of any other Portfolio. A
Loan File shall be
held subject to the same security as other physical documents and records that
the Bank holds for a Portfolio.
(b) The
Portfolio shall deliver or caused to be delivered to the Bank: (a) each Loan
File relating to such Portfolio promptly upon the Portfolio’s receipt of the
same, and (b) a Proper Instruction specifying such Loan File as a Loan File of
the Portfolio and the related identifying number described in paragraph (d) of
this Section.
(c) Except
as expressly set forth herein, the Bank shall have no duty or obligation with
respect to, and no responsibility for, the quality, completeness, or
authenticity of any Loan File or anything included therein, nor shall the Bank
be deemed to have for any purpose whatsoever actual or constructive knowledge of
the contents of, or information contained in, any Loan File. As used herein the
term “Loan File” shall mean a package of paper documents so designated as such
by the Portfolio with respect to any loan, participation and other interests in
loans, promissory notes or similar obligations purchased by the Portfolio, and
any document received by the Bank with respect to any such loan, participation
and other interest in a loan, promissory note or similar obligation shall be
deemed a part of the Loan File.
(d) Whenever
the Portfolio purchases any loan, participation and other interests in a loan,
promissory note or similar obligation which will be included in a Loan File, the
Portfolio shall provide the Bank with a Proper Instruction specifying: (a) the
amount to be paid therefor; (b) the entity to which such payment is to be made,
together with appropriate wiring instructions; (c) the date on which such
payment is to be made, which date shall be at least three business days after
the Bank’s receipt of the Proper Instruction; and (d) the name and identifying
number to be recorded and utilized by the Bank with respect to such Loan File
and payments made, or received, by the Bank with respect to such loan,
participation and other interests in a loan, promissory note or similar
obligation. The Bank shall make such payment out of the monies held for the
applicable Portfolio, and if monies are insufficient shall so advise the
Portfolio and the Bank shall take no further action, until it has received
further instructions in a Proper Instruction. Any such payments made by the Bank
shall not be “against receipt” of any Loan File unless the Portfolio has
otherwise specified in its Proper Instructions. Where payments are not made
“against receipt”, the Portfolio understands and accepts the risk that the
related Loan File may not be received.
28
(e) From
time to time upon receipt of a Proper Instruction the Bank shall make such
deliveries of any Loan File held hereunder as may be specified therein,
including any “free” (and not against payment) deliveries. For any delivery
against payment, the Portfolio understands that settlements, payments and
deliveries may be effected by the Bank in accordance with the customary or
established trading or processing practices and procedures in the jurisdiction
in which the transaction occurs, including, without limitation, delivery to a
purchaser or dealer therefor (or agent) against receipt with the expectation of
receiving later payment. The Portfolio assumes full responsibility for all
risks, including, without limitation, credit risks, involved in connection with
such deliveries of Loan Files. When any deliveries are made “free”, the
Portfolio understands and accepts the risk that payments may not be received.
Payments received by the Bank shall be credited to the account of the
Portfolio.
(f) The
Portfolio, and not the Bank, shall be solely responsible for obtaining delivery
of each Loan File, and where a payment described in paragraph (d) of this
Section is “against receipt” of a Loan File, such receipt shall be by the Bank
from the Portfolio.
(g) Each
week the Bank shall provide to the Portfolio a report specifying by the related
identifying number described in paragraph (d) of this Section each Loan File not
yet delivered to and received by the Bank.
(h) Whenever
a Portfolio anticipates receipt of any payment of principal or interest or other
amount with respect to any Loan File, it shall provide the Bank, at least three
days before such payment date, a Proper Instruction specifying: (i) the
identifying number (described in paragraph (d) of this Section) of the Loan File
to which such payment relates; (ii) the amount to be received; and (iii) the
date on which payment of such amount is to be received. The Bank shall receive
such amounts and credit the same to the account of the Portfolio and shall
provide to Portfolio an advice setting forth the amount so received and any
amounts which were specified to be received in the Proper Instruction but not
received. The Portfolio, and not the Bank, shall be solely responsible for
making demands for any such payments or taking further action if any such
payment is not received.
(i) Each
Portfolio understands that all credits to its account are provisional, may be
reversed if the same are not finally collected, and that any such reversal may
create indebtedness subject to Section 13.6 of this Agreement. For purposes of
such Section 13.6, the Portfolio agrees that each Loan File and each right to
receive payment shall be property as described therein, and further agrees that
such rights shall constitute “financial assets” within the meaning of Article 8
of the New York Uniform Commercial Code and that the account of the Portfolio
shall for such purposes be considered a “securities account” maintained by the
Bank as a “financial intermediary”, as such terms are defined in said Article
8.
29
(j) In
the event the Bank receives any notices, demands, documents, or other materials
with respect to a Loan File, the Bank’s sole responsibility shall be to deliver
the same to the Portfolio.
(k) In
the event of any conflict between the provisions of this Section and any other
provision of this Agreement, this Section shall control.
30
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by
their respective officers thereunto duly authorized as of the day and year first
written above.
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ECLIPSE
FUNDS
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By:
|
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|
Name: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
|
|
|
Title: President
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|
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ECLIPSE
FUNDS INC.
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By:
|
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|
Name: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
|
|
|
Title: President
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|
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THE
MAINSTAY FUNDS
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By:
|
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|
Name: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
|
|
|
Title: President
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MAINSTAY
VP SERIES FUND, INC.
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By:
|
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|
Name: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
|
|
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Title: President
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By:
|
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|
Name: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
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Title: President
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STATE
STREET BANK AND TRUST COMPANY
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By:
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/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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|
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Title: Executive
Vice President
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Appendix
A
to
the
Amended
and Restated Master Custodian Agreement
(as of
January 1, 2011)
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Fund
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Portfolio
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The
MainStay Funds
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MainStay
Common Stock Fund
MainStay
Convertible Fund
MainStay
Diversified Income Fund
MainStay
Equity Index Fund
MainStay
Global High Income Fund
MainStay
Government Fund
MainStay
High Yield Corporate Bond Fund
MainStay
Income Builder Fund
MainStay
International Equity Fund
MainStay
Large Cap Growth Fund
MainStay
MAP Fund
MainStay
Money Market Fund
MainStay
Principal Preservation Fund
MainStay
Tax Free Bond Fund
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Eclipse
Funds
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MainStay
Balanced Fund
MainStay
U.S. Small Cap Fund
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|
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Eclipse
Funds Inc.
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MainStay
High Yield Opportunities Fund
|
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MainStay
VP Series Fund, Inc.
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MainStay
VP Balanced Portfolio
MainStay
▇▇ ▇▇▇▇ Portfolio
MainStay
VP Cash Management Portfolio
MainStay
VP Common Stock Portfolio
MainStay
VP Conservative Allocation Portfolio
MainStay
VP Convertible Portfolio
MainStay
VP Floating Rate Portfolio
MainStay
VP Government Portfolio
MainStay
VP Growth Allocation Portfolio
MainStay
VP Growth Equity Portfolio
MainStay
VP High Yield Corporate Bond Portfolio
MainStay
VP ICAP Select Equity Portfolio
MainStay
VP Income Builder Portfolio
MainStay
VP International Equity Portfolio
MainStay
VP Large Cap Growth Portfolio
MainStay
VP Mid Cap Core Portfolio
MainStay
VP Moderate Allocation Portfolio
MainStay
VP Moderate Growth Allocation Portfolio
MainStay
VP S&P 500 Index Portfolio
MainStay
VP U.S. Small Cap
Portfolio
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MainStay
Cash Reserves Fund
MainStay
Conservative Allocation Fund
MainStay
Epoch U.S. All Cap Fund
MainStay
Epoch U.S. Equity Fund
MainStay
Epoch Global Choice Fund
MainStay
Epoch Global Equity Yield Fund
MainStay
Epoch International Small Cap Fund
MainStay
Floating Rate Fund
MainStay
Growth Allocation Fund
MainStay
Growth Equity Fund
MainStay
High Yield Municipal Bond Fund
MainStay
ICAP Equity Fund
MainStay
ICAP Global Fund
MainStay
ICAP International Fund
MainStay
ICAP Select Equity Fund
MainStay
Indexed Bond Fund
MainStay
Intermediate Term Bond Fund
MainStay
Moderate Allocation Fund
MainStay
Moderate Growth Allocation Fund
MainStay
Retirement 2010 Fund
MainStay
Retirement 2020 Fund
MainStay
Retirement 2030 Fund
MainStay
Retirement 2040 Fund
MainStay
Retirement 2050 Fund
MainStay
S&P 500 Index Fund
MainStay
Short Term Bond Fund
MainStay
130/30 Core Fund
MainStay
130/30 Growth Fund
MainStay
130/30 International Fund
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