EXHIBIT (g)(3)
FORM OF
CUSTODIAN AND INVESTMENT ACCOUNTING AGREEMENT
This Agreement is made effective the 1st day of November, 2001, by and
between EACH OF THE FUNDS SET FORTH ON EXHIBIT A HERETO, each a business trust
or corporation organized and existing under the laws of the jurisdiction listed
on Exhibit A (each a "FUND"), and STATE STREET BANK AND TRUST COMPANY, a
Massachusetts trust company ("STATE STREET"),
WITNESSETH:
WHEREAS, Fund is authorized to issue shares in separate series, with
each such series representing interests in a separate portfolio of securities
and other assets; and
WHEREAS, Fund intends that this Agreement be applicable to each of its
series existing on the date hereof (such series together with all other series
subsequently established by Fund and made subject to this Agreement in
accordance with Section 16.2, be referred to herein as the "PORTFOLIO(S)");
NOW THEREFORE, in consideration of the mutual covenants and agreements
hereinafter contained, the parties hereto agree as follows:
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ AS CUSTODIAN AND RECORDKEEPING AGENT. Fund
hereby appoints State Street as the custodian of the assets of the Portfolios,
including securities that Fund, on behalf of the applicable Portfolio, desires
to be held in places within the United States ("DOMESTIC SECURITIES") and
securities it desires to be held outside the United States ("FOREIGN
SECURITIES"). Fund, on behalf of the Portfolio(s), agrees to deliver to State
Street all securities and cash of the Portfolios, and all payments of income,
payments of principal or capital distributions received by it with respect to
all securities owned by the Portfolio(s) from time to time, and the cash
consideration received by it for such new or treasury shares of beneficial
interest of Fund representing interests in the Portfolios ("SHARES") as may be
issued or sold from time to time. State Street shall not be responsible for any
property of a Portfolio held or received by the Portfolio and not delivered to
State Street.
Upon receipt of "PROPER INSTRUCTIONS" (as such term is defined in Section 6
hereof), State Street shall on behalf of the applicable Portfolio(s) from time
to time appoint one or more sub-custodians located in the United States, but
only in accordance with an applicable vote by the Board of Trustees or Directors
of Fund (the "BOARD") on behalf of the applicable Portfolio(s). State Street may
appoint as sub-custodian for Fund's foreign securities on behalf of the
applicable Portfolio(s) the foreign banking institutions and foreign securities
depositories designated in Schedules A and B hereto, but only in accordance with
the applicable provisions of Sections 3 and 4. State Street shall have no more
or less responsibility or liability to Fund on account of any actions or
omissions of any sub-custodian so appointed than any such sub-custodian has to
State Street.
Fund hereby appoints State Street as agent to perform certain investment
accounting and recordkeeping functions relating to portfolio transactions
required of a duly registered investment company under Rule 31a of the
Investment Company Act of 1940, as amended (the
"1940 ACT") and to calculate the net asset value of the Portfolio(s) in
accordance with the provisions of Section 9 hereof.
SECTION 2 DUTIES OF STATE STREET WITH RESPECT TO PROPERTY OF FUND HELD
BY STATE STREET IN THE UNITED STATES
SECTION 2.1 HOLDING SECURITIES. State Street shall hold and physically
segregate for the account of each Portfolio all non-cash property to be held by
it in the United States, including all domestic securities other than securities
which are maintained pursuant to Section 2.8 in a clearing agency which acts as
a securities depository or in a book-entry system authorized by the U.S.
Department of the Treasury (each, a "U.S. SECURITIES SYSTEM").
SECTION 2.2 DELIVERY OF SECURITIES. State Street shall release and
deliver domestic securities held by State Street or in a U.S. Securities System
account of State Street only upon receipt of Proper Instructions on behalf of
the applicable Portfolio, which may be continuing instructions when deemed
appropriate by the parties, and only in the following cases:
1) Upon sale of such securities for the account of the Portfolio
and receipt of payment therefor;
2) Upon the receipt of payment in connection with any repurchase
agreement related to such securities entered into by the
Portfolio;
3) In the case of a sale effected through a U.S. Securities
System, in accordance with the provisions of Section 2.8
hereof;
4) To the depository agent in connection with tender or other
similar offers for securities of the Portfolio;
5) To the issuer thereof or its agent when such securities are
called, redeemed, retired or otherwise become payable;
provided that, in any such case, the cash or other
consideration is to be delivered to State Street;
6) To the issuer thereof, or its agent, for transfer into the
name of the Portfolio or into the name of any nominee(s) of
State Street or into the name or nominee name of any agent
appointed pursuant to Section 2.7 or into the name or nominee
name of any sub-custodian appointed pursuant to Section 1; or
for exchange for a different number of bonds, certificates or
other evidence representing the same aggregate face amount or
number of units; provided that, in any such case, the new
securities are to be delivered to State Street;
7) Upon the sale of such securities for the account of the
Portfolio, to the broker or its clearing agent, against a
receipt, for examination in accordance with "street delivery"
custom; provided that in any such case, State Street shall
have no responsibility or liability for any loss arising from
the delivery of such securities prior to receiving payment for
such securities except as may arise from State Street's own
negligence or willful misconduct;
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8) For exchange or conversion pursuant to any plan of merger,
consolidation, recapitalization, reorganization or
readjustment of the securities of the issuer of such
securities, or pursuant to provisions for conversion contained
in such securities, or pursuant to any deposit agreement;
provided that, in any such case, the new securities and cash,
if any, are to be delivered to State Street;
9) In the case of warrants, rights or similar securities, the
surrender thereof in the exercise of such warrants, rights or
similar securities or the surrender of interim receipts or
temporary securities for definitive securities; provided that,
in any such case, the new securities and cash, if any, are to
be delivered to State Street;
10) For delivery in connection with any loans of securities made
by the Portfolio, but only against receipt of adequate
collateral as agreed upon from time to time by State Street
and Fund on behalf of the Portfolio, which may be in the form
of cash or obligations issued by the United States government,
its agencies or instrumentalities, except that in connection
with any loans for which collateral is to be credited to State
Street's account in the book-entry system authorized by the
U.S. Department of the Treasury, State Street will not be held
liable or responsible for the delivery of securities owned by
the Portfolio prior to the receipt of such collateral;
11) For delivery as security in connection with any borrowing by
Fund on behalf of the Portfolio requiring a pledge of assets
by Fund , but only against receipt of amounts borrowed;
12) For delivery in accordance with the provisions of any
agreement among Fund on behalf of the Portfolio, State Street
and a broker-dealer registered under the Securities Exchange
Act of 1934 (the "EXCHANGE ACT") and a member of The National
Association of Securities Dealers, Inc. ("NASD"), relating to
compliance with the rules of The Options Clearing Corporation
and of any registered national securities exchange, or of any
similar organization or organizations, regarding escrow or
other arrangements in connection with transactions by the
Portfolio;
13) For delivery in accordance with the provisions of any
agreement among Fund on behalf of the Portfolio, State Street,
and a futures commission merchant registered under the
Commodity Exchange Act, relating to compliance with the rules
of the Commodity Futures Trading Commission ("CFTC") and/or
any contract market, or any similar organization or
organizations, regarding account deposits in connection with
transactions by the Portfolio;
14) Upon receipt of instructions from the transfer agent for Fund
(the "TRANSFER AGENT") for delivery to such Transfer Agent or
to the holders of Shares in connection with distributions in
kind, as may be described from time to time in the currently
effective prospectus and statement of additional information
related to the Portfolio (the "PROSPECTUS"), in satisfaction
of requests by holders of Shares for repurchase or redemption;
and
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15) For any other purpose, but only upon receipt of Proper
Instructions on behalf of the applicable Portfolio specifying
the securities to be delivered and naming the person or
persons to whom delivery of such securities shall be made.
SECTION 2.3 REGISTRATION OF SECURITIES. Domestic securities (other than
bearer securities) shall be registered in the name of the Portfolio or in the
name of any nominee of Fund on behalf of the Portfolio or of State Street which
nominee shall be assigned exclusively to the Portfolio, unless Fund has
authorized in writing the appointment of a nominee to be used in common with
other registered investment companies having the same investment advisor as the
Portfolio, or in the name or nominee name of any agent appointed pursuant to
Section 2.7 or in the name or nominee name of any sub-custodian appointed
pursuant to Section 1. All securities accepted by State Street under the terms
hereof shall be in "street name" or other good delivery form. If, however, Fund
directs State Street to maintain securities in "street name", State Street shall
utilize its best efforts only to timely collect income due Fund on such
securities and to notify Fund on a best efforts basis only of relevant corporate
actions including, without limitation, pendency of calls, maturities, tender or
exchange offers.
SECTION 2.4 BANK ACCOUNTS. State Street shall open and maintain a
separate bank account or accounts in the United States in the name of each
Portfolio, subject only to draft or order by State Street acting pursuant
hereto, and shall hold in such account or accounts, subject to the provisions
hereof, all cash received by it from or for the account of the Portfolio, other
than cash maintained by the Portfolio in a bank account established and used in
accordance with Rule 17f-3 under the 1940 Act. Funds held by State Street for a
Portfolio may be deposited by it to its credit as custodian in the banking
department of State Street or in such other banks or trust companies as it may
in its discretion deem necessary or desirable; provided, however, that every
such bank or trust company shall be qualified to act as a custodian under the
1940 Act and that each such bank or trust company and the funds to be deposited
with each such bank or trust company shall on behalf of each applicable
Portfolio be approved by vote of a majority of the Board. Such funds shall be
deposited by State Street in its capacity as custodian and shall be withdrawable
by State Street only in that capacity.
SECTION 2.5 COLLECTION OF INCOME. Subject to the provisions of ▇▇▇▇▇▇▇
▇.▇, ▇▇▇▇▇ ▇▇▇▇▇▇ shall collect on a timely basis all income and other payments
with respect to registered domestic securities to which each Portfolio shall be
entitled either by law or pursuant to custom in the securities business, and
shall collect on a timely basis all income and other payments with respect to
bearer domestic securities if, on the date of payment by the issuer, such
securities are held by State Street or its agent thereof and shall credit such
income, as collected, to such Portfolio's custodian account. Without limiting
the generality of the foregoing, State Street shall detach and present for
payment all coupons and other income items requiring presentation as and when
they become due and shall collect interest when due on securities held
hereunder. Income due each Portfolio on securities loaned pursuant to the
provisions of Section 2.2 (10) shall be the responsibility of Fund. State Street
will have no duty or responsibility in connection therewith, other than to
provide Fund with such information or data as may be necessary to assist Fund in
arranging for the timely delivery to State Street of the income to which the
Portfolio is properly entitled.
SECTION 2.6 PAYMENT OF FUND MONIES. Upon receipt of Proper Instructions
on behalf of the applicable Portfolio, which may be continuing instructions when
deemed appropriate by the parties, State Street shall pay out monies of a
Portfolio in the following cases only:
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1) Upon the purchase of domestic securities, options, futures
contracts or options on futures contracts for the account of
the Portfolio but only (a) against the delivery of such
securities or evidence of title to such options, futures
contracts or options on futures contracts to State Street (or
any bank, banking firm or trust company doing business in the
United States or abroad which is qualified under the 1940 Act
to act as a custodian and has been designated by State Street
as its agent for this purpose) registered in the name of the
Portfolio or in the name of a nominee of State Street referred
to in Section 2.3 hereof or in proper form for transfer; (b)
in the case of a purchase effected through a U.S. Securities
System, in accordance with the conditions set forth in Section
2.8 hereof; (c) in the case of repurchase agreements entered
into between Fund on behalf of the Portfolio and State Street,
or another bank, or a broker-dealer which is a member of NASD,
(i) against delivery of the securities either in certificate
form or through an entry crediting State Street's account at
the Federal Reserve Bank with such securities or (ii) against
delivery of the receipt evidencing purchase by the Portfolio
of securities owned by State Street along with written
evidence of the agreement by State Street to repurchase such
securities from the Portfolio; or (d) for transfer to a time
deposit account of Fund in any bank, whether domestic or
foreign; such transfer may be effected prior to receipt of a
confirmation from a broker and/or the applicable bank pursuant
to Proper Instructions ;
2) In connection with conversion, exchange or surrender of
securities owned by the Portfolio as set forth in Section 2.2
hereof;
3) For the redemption or repurchase of Shares issued as set forth
in Section 5 hereof;
4) For the payment of any expense or liability incurred by the
Portfolio, including but not limited to the following payments
for the account of the Portfolio: interest, taxes, management,
accounting, transfer agent and legal fees, and operating
expenses of Fund whether or not such expenses are to be in
whole or part capitalized or treated as deferred expenses;
5) For the payment of any dividends on Shares declared pursuant
to the Declaration of Trust, Articles of Incorporation, Bylaws
or other governing documents of Fund (collectively, the
"GOVERNING DOCUMENTS");
6) For payment of the amount of dividends received in respect of
securities sold short; and
7) For any other purpose, but only upon receipt of Proper
Instructions on behalf of the Portfolio specifying the amount
of such payment and naming the person or persons to whom such
payment is to be made.
SECTION 2.7 APPOINTMENT OF AGENTS. State Street may at any time or
times in its discretion appoint (and may at any time remove) any other bank or
trust company which is itself qualified under the 1940 Act to act as a
custodian, as its agent to carry out such of the provisions of this Section 2 as
State Street may from time to time direct; provided, however, that the
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appointment of any agent shall not relieve State Street of its responsibilities
or liabilities hereunder.
SECTION 2.8 DEPOSIT OF FUND ASSETS IN U.S. SECURITIES SYSTEMS. State
Street may deposit and/or maintain securities owned by a Portfolio in a U.S.
Securities System subject to the following provisions:
▇) ▇▇▇▇▇ ▇▇▇▇▇▇ may keep securities of the Portfolio in a U.S.
Securities System provided that such securities are
represented in an account of State Street in the U.S.
Securities System (the "U.S. SECURITIES SYSTEM ACCOUNT") which
account shall not include any assets of State Street other
than assets held as a fiduciary, custodian or otherwise for
customers;
2) The records of State Street with respect to securities of the
Portfolio which are maintained in a U.S. Securities System
shall identify by book-entry those securities belonging to the
Portfolio;
▇) ▇▇▇▇▇ ▇▇▇▇▇▇ shall pay for securities purchased for the
account of the Portfolio upon (i) receipt of advice from the
U.S. Securities System that such securities have been
transferred to the U.S. Securities System Account, and (ii)
the making of an entry on the records of State Street to
reflect such payment and transfer for the account of the
Portfolio. State Street shall transfer securities sold for the
account of the Portfolio upon (i) receipt of advice from the
U.S. Securities System that payment for such securities has
been transferred to the U.S. Securities System Account, and
(ii) the making of an entry on the records of State Street to
reflect such transfer and payment for the account of the
Portfolio. Copies of all advices from the U.S. Securities
System of transfers of securities for the account of the
Portfolio shall identify the Portfolio, be maintained for the
Portfolio by State Street and be provided to Fund at its
request. Upon request, State Street shall furnish Fund on
behalf of the Portfolio confirmation of each transfer to or
from the account of the Portfolio in the form of a written
advice or notice and shall furnish to Fund on behalf of the
Portfolio copies of daily transaction sheets reflecting each
day's transactions in the U.S. Securities System for the
account of the Portfolio;
4) State Street shall provide Fund with any report obtained by
State Street on the U.S. Securities System's accounting
system, internal accounting control and procedures for
safeguarding securities deposited in the U.S. Securities
System;
5) Anything to the contrary herein notwithstanding, State Street
shall be liable to Fund for the benefit of the Portfolio for
any loss or damage to the Portfolio resulting from use of the
U.S. Securities System by reason of any negligence,
misfeasance or misconduct of State Street or any of its agents
or of any of its or their employees or from failure of State
Street or any such agent to enforce effectively such rights as
it may have against the U.S. Securities System; at the
election of Fund, it shall be entitled to be subrogated to the
rights of State Street with respect to any claim against the
U.S. Securities System or any other person which State Street
may have as a consequence of any such loss or damage if and
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to the extent that the Portfolio has not been made whole for
any such loss or damage.
SECTION 2.9 SEGREGATED ACCOUNT. State Street shall upon receipt of
Proper Instructions on behalf of each applicable Portfolio establish and
maintain a segregated account or accounts for and on behalf of each such
Portfolio, into which account or accounts may be transferred cash and/or
securities, including securities maintained in an account by State Street
pursuant to Section 2.8 hereof, (i) in accordance with the provisions of any
agreement among Fund on behalf of the Portfolio, State Street and a
broker-dealer registered under the Exchange Act and a member of the NASD (or any
futures commission merchant registered under the Commodity Exchange Act),
relating to compliance with the rules of The Options Clearing Corporation and of
any registered national securities exchange (or the CFTC or any registered
contract market), or of any similar organization or organizations, regarding
escrow or other arrangements in connection with transactions by the Portfolio,
(ii) for purposes of segregating cash or government securities in connection
with options purchased, sold or written by the Portfolio or commodity futures
contracts or options thereon purchased or sold by the Portfolio, (iii) for the
purposes of compliance by the Portfolio with the procedures required by
Investment Company Act Release No. 10666, or any subsequent release of the U.S.
Securities and Exchange Commission (the "SEC"), or interpretative opinion of the
staff of the SEC, relating to the maintenance of segregated accounts by
registered investment companies, and (iv) for any other purpose upon receipt of
Proper Instructions on behalf of the applicable Portfolio.
SECTION 2.10 OWNERSHIP CERTIFICATES FOR TAX PURPOSES. State Street
shall execute ownership and other certificates and affidavits for all federal
and state tax purposes in connection with receipt of income or other payments
with respect to domestic securities of each Portfolio and in connection with
transfers of securities.
SECTION 2.11 PROXIES. State Street shall, with respect to domestic
securities , cause to be promptly executed by the registered holder of such
securities, if the securities are registered otherwise than in the name of the
Portfolio or a nominee of the Portfolio, all proxies, without indication of the
manner in which such proxies are to be voted, and shall promptly deliver to the
Portfolio such proxies, all proxy soliciting materials and all notices relating
to such securities.
SECTION 2.12 COMMUNICATIONS RELATING TO PORTFOLIO SECURITIES. Subject
to the provisions of ▇▇▇▇▇▇▇ ▇.▇, ▇▇▇▇▇ ▇▇▇▇▇▇ shall transmit promptly to Fund
for each Portfolio all written information (including, without limitation,
pendency of calls and maturities of domestic securities and expirations of
rights in connection therewith and notices of exercise of call and put options
written by Fund on behalf of the Portfolio and the maturity of futures contracts
purchased or sold by the Portfolio) received by State Street from issuers of the
securities being held for the Portfolio. With respect to tender or exchange
offers, State Street shall transmit promptly to the Portfolio all written
information received by State Street from issuers of the securities whose tender
or exchange is sought and from the party (or its agents) making the tender or
exchange offer. If the Portfolio desires to take action with respect to any
tender offer, exchange offer or any other similar transaction, the Portfolio
shall notify State Street at least three business days prior to the date on
which State Street is to take such action.
SECTION 3 PROVISIONS RELATING TO RULES 17F-5 AND 17F-7
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SECTION 3.1 DEFINITIONS. As used throughout this Agreement, the
capitalized terms set forth below shall have the indicated meanings:
"Country Risk" means all factors reasonably related to the systemic risk of
holding Foreign Assets in a particular country including, but not limited to,
such country's political environment, economic and financial infrastructure
(including any Eligible Securities Depository operating in the country),
prevailing or developing custody and settlement practices, and laws and
regulations applicable to the safekeeping and recovery of Foreign Assets held in
custody in that country.
"Eligible Foreign Custodian" has the meaning set forth in section (a)(1) of Rule
17f-5, including a majority-owned or indirect subsidiary of a U.S. Bank (as
defined in Rule 17f-5), a bank holding company meeting the requirements of an
Eligible Foreign Custodian (as set forth in Rule 17f-5 or by other appropriate
action of the SEC, or a foreign branch of a Bank (as defined in section 2(a)(5)
of the ▇▇▇▇ ▇▇▇) meeting the requirements of a custodian under section 17(f) of
the 1940 Act; the term does not include any Eligible Securities Depository.
"Eligible Securities Depository" has the meaning set forth in section (b)(1) of
Rule 17f-7.
"Foreign Assets" means any of the Portfolios' investments (including foreign
currencies) for which the primary market is outside the United States and such
cash and cash equivalents as are reasonably necessary to effect the Portfolios'
transactions in such investments.
"Foreign Custody Manager" has the meaning set forth in section (a)(3) of Rule
17f-5.
"Rule 17f-5" means Rule 17f-5 promulgated under the 1940 Act.
"Rule 17f-7" means Rule 17f-7 promulgated under the 1940 Act.
SECTION 3.2 STATE STREET AS FOREIGN CUSTODY MANAGER.
3.2.1 DELEGATION TO STATE STREET AS FOREIGN CUSTODY MANAGER. Fund, by
resolution adopted by its Board, hereby delegates to State Street,
subject to section (b) of Rule 17f-5, the responsibilities set forth in
this Section 3.2 with respect to Foreign Assets held outside the United
States, and State Street hereby accepts such delegation as Foreign
Custody Manager with respect to the Portfolios.
3.2.2 COUNTRIES COVERED. The Foreign Custody Manager shall be
responsible for performing the delegated responsibilities defined below
only with respect to the countries and custody arrangements for each
such country listed on Schedule A, which list of countries may be
amended from time to time by Fund with the agreement of the Foreign
Custody Manager. The Foreign Custody Manager shall list on Schedule A
the Eligible Foreign Custodians selected by the Foreign Custody Manager
to maintain the assets of the Portfolios, which list of Eligible
Foreign Custodians may be amended from time to time in the sole
discretion of the Foreign Custody Manager. The Foreign Custody Manager
will provide amended versions of Schedule A in accordance with Section
3.2.5 hereof.
Upon the receipt by the Foreign Custody Manager of Proper Instructions
to open an account or to place or maintain Foreign Assets in a country
listed on Schedule A, and the
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fulfillment by Fund, on behalf of the Portfolios, of the applicable
account opening requirements for such country, the Foreign Custody
Manager shall be deemed to have been delegated by the Board on behalf
of the Portfolios responsibility as Foreign Custody Manager with
respect to that country and to have accepted such delegation. Execution
hereof by Fund shall be deemed to be a Proper Instruction to open an
account, or to place or maintain Foreign Assets, in each country listed
on Schedule A in which State Street has previously placed or currently
maintains Foreign Assets pursuant to the terms of the contract
governing the custody arrangement. Following the receipt of Proper
Instructions directing the Foreign Custody Manager to close the account
of a Portfolio with the Eligible Foreign Custodian selected by the
Foreign Custody Manager in a designated country, the delegation by the
Board on behalf of the Portfolios to State Street as Foreign Custody
Manager for that country shall be deemed to have been withdrawn and
State Street shall immediately cease to be the Foreign Custody Manager
of the Portfolios with respect to that country.
The Foreign Custody Manager may withdraw its acceptance of delegated
responsibilities with respect to a designated country upon written
notice to Fund. Thirty days (or such longer period to which the parties
agree in writing) after receipt of any such notice by Fund, State
Street shall have no further responsibility in its capacity as Foreign
Custody Manager to Fund with respect to the country as to which State
Street's acceptance of delegation is withdrawn.
3.2.3 SCOPE OF DELEGATED RESPONSIBILITIES:
(a) SELECTION OF ELIGIBLE FOREIGN CUSTODIANS. Subject to the
provisions of this Section 3.2, the Foreign Custody Manager may place
and maintain the Foreign Assets in the care of the Eligible Foreign
Custodian selected by the Foreign Custody Manager in each country
listed on Schedule A, as amended from time to time. In performing its
delegated responsibilities as Foreign Custody Manager to place or
maintain Foreign Assets with an Eligible Foreign Custodian, the Foreign
Custody Manager shall determine that the Foreign Assets will be subject
to reasonable care, based on the standards applicable to custodians in
the country in which the Foreign Assets will be held by that Eligible
Foreign Custodian, after considering all factors relevant to the
safekeeping of such assets, including, without limitation the factors
specified in Rule 17f-5(c)(1).
(b) CONTRACTS WITH ELIGIBLE FOREIGN CUSTODIANS. The Foreign
Custody Manager shall determine that the contract governing the foreign
custody arrangements with each Eligible Foreign Custodian selected by
the Foreign Custody Manager will satisfy the requirements of Rule
17f-5(c)(2).
(c) MONITORING. In each case in which the Foreign Custody
Manager maintains Foreign Assets with an Eligible Foreign Custodian
selected by the Foreign Custody Manager, the Foreign Custody Manager
shall establish a system to monitor (i) the appropriateness of
maintaining the Foreign Assets with such Eligible Foreign Custodian and
(ii) the contract governing the custody arrangements established by the
Foreign Custody Manager with the Eligible Foreign Custodian. In the
event the Foreign Custody Manager determines that the custody
arrangements with an Eligible Foreign
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Custodian it has selected are no longer appropriate, the Foreign
Custody Manager shall notify the Board in accordance with Section 3.2.5
hereunder.
3.2.4 GUIDELINES FOR THE EXERCISE OF DELEGATED AUTHORITY. For purposes
of this Section 3.2, the Board shall be deemed to have considered and
determined to accept such Country Risk as is incurred by placing and
maintaining the Foreign Assets in each country for which State Street
is serving as Foreign Custody Manager of the Portfolios.
3.2.5 REPORTING REQUIREMENTS. The Foreign Custody Manager shall report
the withdrawal of the Foreign Assets from an Eligible Foreign Custodian
and the placement of such Foreign Assets with another Eligible Foreign
Custodian by providing to the Board an amended Schedule A at the end of
the calendar quarter in which an amendment to such Schedule has
occurred. The Foreign Custody Manager shall make written reports
notifying the Board of any other material change in the foreign custody
arrangements of the Portfolios described in this Section 3.2 after the
occurrence of the material change.
3.2.6 STANDARD OF CARE AS FOREIGN CUSTODY MANAGER OF A PORTFOLIO. In
performing the responsibilities delegated to it, the Foreign Custody
Manager agrees to exercise reasonable care, prudence and diligence such
as a person having responsibility for the safekeeping of assets of
management investment companies registered under the 1940 Act would
exercise.
3.2.7 REPRESENTATIONS WITH RESPECT TO RULE 17F-5. The Foreign Custody
Manager represents to Fund that it is a U.S. Bank as defined in section
(a)(7) of Rule 17f-5. Fund represents to State Street that the Board
has determined that it is reasonable for the Board to rely on State
Street to perform the responsibilities delegated pursuant hereto to
State Street as the Foreign Custody Manager of the Portfolios.
3.2.8 EFFECTIVE DATE AND TERMINATION OF STATE STREET AS FOREIGN CUSTODY
MANAGER. The Board's delegation to State Street as Foreign Custody
Manager of the Portfolios shall be effective as of the date hereof and
shall remain in effect until terminated at any time, without penalty,
by written notice from the terminating party to the non-terminating
party. Termination will become effective thirty (30) days after receipt
by the non-terminating party of such notice. The provisions of Section
3.2.2 hereof shall govern the delegation to and termination of State
Street as Foreign Custody Manager of the Portfolios with respect to
designated countries.
SECTION 3.3 ELIGIBLE SECURITIES DEPOSITORIES.
3.3.1 ANALYSIS AND MONITORING. State Street shall (a) provide Fund (or
its duly-authorized investment manager or investment advisor) with an
analysis of the custody risks associated with maintaining assets with
the Eligible Securities Depositories set forth on Schedule B hereto in
accordance with section (a)(1)(i)(A) of Rule 17f-7, and (b) monitor
such risks on a continuing basis, and promptly notify Fund (or its
duly-authorized investment manager or investment advisor) of any
material change in such risks, in accordance with section (a)(1)(i)(B)
of Rule 17f-7.
3.3.2 STANDARD OF CARE. State Street agrees to exercise reasonable
care, prudence and diligence in performing the duties set forth in
Section 3.3.1.
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SECTION 4 DUTIES OF STATE STREET WITH RESPECT TO PROPERTY HELD OUTSIDE
THE UNITED STATES
SECTION 4.1 DEFINITIONS. As used throughout this Agreement, the
capitalized terms set forth below shall have the indicated meanings:
"Foreign Securities System" means an Eligible Securities Depository listed on
Schedule B hereto.
"Foreign Sub-Custodian" means a foreign banking institution serving as an
Eligible Foreign Custodian.
SECTION 4.2 HOLDING SECURITIES. State Street shall identify on its
books as belonging to the Portfolios the foreign securities held by each Foreign
Sub-Custodian or Foreign Securities System. State Street may hold foreign
securities for all of its customers, including the Portfolios, with any Foreign
Sub-Custodian in an account that is identified as belonging to State Street for
the benefit of its customers, provided however, that (i) the records of State
Street with respect to foreign securities which are maintained in such account
shall identify those securities as belonging to the Portfolios and (ii), to the
extent permitted and customary in the market in which the account is maintained,
State Street shall require that securities so held by the Foreign Sub-Custodian
be held separately from any assets of such Foreign Sub-Custodian or of other
customers of such Foreign Sub-Custodian.
SECTION 4.3 FOREIGN SECURITIES SYSTEMS. Foreign securities shall be
maintained in a Foreign Securities System in a designated country through
arrangements implemented by State Street or a Foreign Sub-Custodian, as
applicable, in such country. (Foreign. Securities Systems and U.S. Securities
Systems are collectively referred to herein as "SECURITIES SYSTEMS").
SECTION 4.4 TRANSACTIONS IN FOREIGN CUSTODY ACCOUNT.
4.4.1. DELIVERY OF FOREIGN ASSETS. State Street or a Foreign
Sub-Custodian shall release and deliver foreign securities held by
State Street or such Foreign Sub-Custodian, or in a Foreign Securities
System account, only upon receipt of Proper Instructions, which may be
continuing instructions when deemed appropriate by the parties, and
only in the following cases:
(i) upon the sale of such foreign securities for the Portfolio
in accordance with commercially reasonable market practice in the
country where such foreign securities are held or traded, including,
without limitation: (A) delivery against expectation of receiving later
payment; or (B) in the case of a sale effected through a Foreign
Securities System, in accordance with the rules governing the operation
of the Foreign Securities System;
(ii) in connection with any repurchase agreement related to
foreign securities;
(iii) to the depository agent in connection with tender or
other similar offers for foreign securities;
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(iv) to the issuer thereof or its agent when such foreign
securities are called, redeemed, retired or otherwise become payable;
(v) to the issuer thereof, or its agent, for transfer into the
name of State Street (or the name of the respective Foreign
Sub-Custodian or of any nominee of State Street or such Foreign
Sub-Custodian) or for exchange for a different number of bonds,
certificates or other evidence representing the same aggregate face
amount or number of units;
(vi) to brokers, clearing banks or other clearing agents for
examination or trade execution in accordance with market custom;
provided that in any such case the Foreign Sub-Custodian shall have no
responsibility or liability for any loss arising from the delivery of
such securities prior to receiving payment for such securities except
as may arise from the Foreign Sub-Custodian's own negligence or willful
misconduct;
(vii) for exchange or conversion pursuant to any plan of
merger, consolidation, recapitalization, reorganization or readjustment
of the securities of the issuer of such securities, or pursuant to
provisions for conversion contained in such securities, or pursuant to
any deposit agreement;
(viii) in the case of warrants, rights or similar foreign
securities, the surrender thereof in the exercise of such warrants,
rights or similar securities or the surrender of interim receipts or
temporary securities for definitive securities;
(ix) for delivery as security in connection with any borrowing
by the Portfolios requiring a pledge of assets by the Portfolios;
(x) in connection with trading in options and futures
contracts, including delivery as original margin and variation margin;
(xi) in connection with the lending of foreign securities; and
(xii) for any other purpose, but only upon receipt of Proper
Instructions specifying the foreign securities to be delivered and
naming the person or persons to whom delivery of such securities shall
be made.
4.4.2. PAYMENT OF PORTFOLIO MONIES. Upon receipt of Proper
Instructions, which may be continuing instructions when deemed
appropriate by the parties, State Street shall pay out, or direct the
respective Foreign Sub-Custodian or the respective Foreign Securities
System to pay out, monies of a Portfolio in the following cases only:
(i) upon the purchase of foreign securities for the Portfolio,
unless otherwise directed by Proper Instructions, by (A) delivering
money to the seller thereof or to a dealer therefor (or an agent for
such seller or dealer) against expectation of receiving later delivery
of such foreign securities; or (B) in the case of a purchase effected
through a Foreign Securities System, in accordance with the rules
governing the operation of such Foreign Securities System;
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(ii) in connection with the conversion, exchange or surrender
of foreign securities;
(iii) for the payment of any expense or liability of the
Portfolio, including but not limited to the following payments:
interest, taxes, investment advisory fees, transfer agency fees, fees
hereunder, legal fees, accounting fees, and other operating expenses;
(iv) for the purchase or sale of foreign exchange or foreign
exchange contracts for the Portfolio, including transactions executed
with or through State Street or its Foreign Sub-Custodians;
(v) in connection with trading in options and futures
contracts, including delivery as original margin and variation margin;
(vi) for payment of part or all of the dividends received in
respect of securities sold short;
(vii) in connection with the borrowing or lending of foreign
securities; and
(viii) for any other purpose, but only upon receipt of Proper
Instructions specifying the amount of such payment and naming the
person or persons to whom such payment is to be made.
4.4.3. MARKET CONDITIONS. Notwithstanding any provision hereof to the
contrary, settlement and payment for Foreign Assets received for the
account of the Portfolios and delivery of Foreign Assets maintained for
the account of the Portfolios may be effected in accordance with the
customary established securities trading or processing practices and
procedures in the country or market in which the transaction occurs,
including, without limitation, delivering Foreign Assets to the
purchaser thereof or to a dealer therefor (or an agent for such
purchaser or dealer) with the expectation of receiving later payment
for such Foreign Assets from such purchaser or dealer.
State Street shall provide to the Board the information with respect to
custody and settlement practices in countries in which State Street
employs a Foreign Sub-Custodian described on Schedule C hereto at the
time or times set forth on such Schedule. State Street may revise
Schedule C from time to time, provided that no such revision shall
result in the Board being provided with substantively less information
than had been previously provided hereunder.
SECTION 4.5 REGISTRATION OF FOREIGN SECURITIES. The foreign securities
maintained in the custody of a Foreign Sub-Custodian (other than bearer
securities) shall be registered in the name of the applicable Portfolio or in
the name of State Street or in the name of any Foreign Sub-Custodian or in the
name of any nominee of the foregoing, and Fund on behalf of such Portfolio
agrees to hold any such nominee harmless from any liability as a holder of
record of such foreign securities. State Street or a Foreign Sub-Custodian shall
not be obligated to accept securities on behalf of a Portfolio under the terms
hereof unless the form of such securities and the manner in which they are
delivered are in accordance with reasonable market practice.
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SECTION 4.6 BANK ACCOUNTS. State Street shall identify on its books as
belonging to Fund cash (including cash denominated in foreign currencies)
deposited with State Street. Where State Street is unable to maintain, or market
practice does not facilitate the maintenance of, cash on the books of State
Street, a bank account or bank accounts shall be opened and maintained outside
the United States on behalf of a Portfolio with a Foreign Sub-Custodian. All
accounts referred to in this Section shall be subject only to draft or order by
State Street (or, if applicable, such Foreign Sub-Custodian) acting pursuant to
the terms hereof to hold cash received by or from or for the account of the
Portfolio. Cash maintained on the books of State Street (including its branches,
subsidiaries and affiliates), regardless of currency denomination, is maintained
in bank accounts established under, and subject to the laws of, The Commonwealth
of Massachusetts.
SECTION 4.7 COLLECTION OF INCOME. State Street shall use reasonable
commercial efforts to collect all income and other payments with respect to the
Foreign Assets held hereunder to which the Portfolios shall be entitled and
shall credit such income, as collected, to the applicable Portfolio. In the
event that extraordinary measures are required to collect such income, Fund and
State Street shall consult as to such measures and as to the compensation and
expenses of State Street relating to such measures.
SECTION 4.8 SHAREHOLDER RIGHTS. With respect to the foreign securities
held pursuant to this ▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇▇▇ will use reasonable commercial
efforts to facilitate the exercise of voting and other shareholder rights,
subject always to the laws, regulations and practical constraints that may exist
in the country where such securities are issued. Fund acknowledges that local
conditions, including lack of regulation, onerous procedural obligations, lack
of notice and other factors may have the effect of severely limiting the ability
of Fund to exercise shareholder rights.
SECTION 4.9 COMMUNICATIONS RELATING TO FOREIGN SECURITIES. State Street
shall transmit promptly to Fund written information with respect to materials
received by State Street via the Foreign Sub-Custodians from issuers of the
foreign securities being held for the account of the Portfolios (including,
without limitation, pendency of calls and maturities of foreign securities and
expirations of rights in connection therewith). With respect to tender or
exchange offers, State Street shall transmit promptly to Fund written
information with respect to materials so received by State Street from issuers
of the foreign securities whose tender or exchange is sought or from the party
(or its agents) making the tender or exchange offer. State Street shall not be
liable for any untimely exercise of any tender, exchange or other right or power
in connection with foreign securities or other property of the Portfolios at any
time held by it unless (i) State Street or the respective Foreign Sub-Custodian
is in actual possession of such foreign securities or property and (ii) State
Street receives Proper Instructions with regard to the exercise of any such
right or power, and both (i) and (ii) occur at least three business days prior
to the date on which State Street is to take action to exercise such right or
power.
SECTION 4.10 LIABILITY OF FOREIGN SUB-CUSTODIANS. Each agreement
pursuant to which State Street employs a Foreign Sub-Custodian shall, to the
extent possible, require the Foreign Sub-Custodian to exercise reasonable care
in the performance of its duties, and to indemnify, and hold harmless, State
Street from and against any loss, damage, cost, expense, liability or claim
arising out of or in connection with the Foreign Sub-Custodian's performance of
such obligations. At Fund's election, the Portfolios shall be entitled to be
subrogated to the rights of State Street with respect to any claims against a
Foreign Sub-Custodian as a
14
consequence of any such loss, damage, cost, expense, liability or claim if and
to the extent that the Portfolios have not been made whole for any such loss,
damage, cost, expense, liability or claim.
SECTION 4.11 TAX LAW. State Street shall have no responsibility or
liability for any obligations now or hereafter imposed on Fund, the Portfolios
or State Street as custodian of the Portfolios by the tax law of the United
States or of any state or political subdivision thereof. It shall be the
responsibility of Fund to notify State Street of the obligations imposed on Fund
with respect to the Portfolios or State Street as custodian of the Portfolios by
the tax law of countries other than those mentioned in the above sentence,
including responsibility for withholding and other taxes, assessments or other
governmental charges, certifications and governmental reporting. The sole
responsibility of State Street with regard to such tax law shall be to use
reasonable efforts to assist Fund with respect to any claim for exemption or
refund under the tax law of countries for which Fund has provided such
information.
SECTION 4.12 LIABILITY OF STATE STREET. State Street shall be liable
for the acts or omissions of a Foreign Sub-Custodian to the same extent as set
forth with respect to sub-custodians generally herein and, regardless of whether
assets are maintained in the custody of a Foreign Sub-Custodian or a Foreign
Securities System, State Street shall not be liable for any loss, damage, cost,
expense, liability or claim resulting from nationalization, expropriation,
currency restrictions, or acts of war or terrorism, or any other loss where the
Sub-Custodian has otherwise acted with reasonable care.
SECTION 5 PAYMENTS FOR SALES OR REPURCHASES OR REDEMPTIONS OF SHARES. State
Street shall receive from the distributor for the Shares or from the Transfer
Agent and deposit into the account of the appropriate Portfolio such payments as
are received for Shares thereof issued or sold from time to time by Fund. State
Street will provide timely notification to Fund on behalf of each such Portfolio
and the Transfer Agent of any receipt by it of payments for Shares of such
Portfolio.
From such funds as may be available for the purpose, State Street shall, upon
receipt of instructions from the Transfer Agent, make funds available for
payment to holders of Shares who have delivered to the Transfer Agent a request
for redemption or repurchase of their Shares. In connection with the redemption
or repurchase of Shares, State Street is authorized upon receipt of instructions
from the Transfer Agent to wire funds to or through a commercial bank designated
by the redeeming shareholders. In connection with the redemption or repurchase
of Shares, State Street shall honor checks drawn on State Street by a holder of
Shares, which checks have been furnished by Fund to the holder of Shares, when
presented to State Street in accordance with such procedures and controls as are
mutually agreed upon from time to time between Fund and State Street.
SECTION 6 PROPER INSTRUCTIONS. Proper Instructions as used throughout this
Agreement means a writing signed or initialed by one or more person or persons
as the Board shall have from time to time authorized. Each such writing shall
set forth the specific transaction or type of transaction involved, including a
specific statement of the purpose for which such action is requested. Oral
instructions will be considered Proper Instructions if State Street reasonably
believes them to have been given by a person authorized to give such
instructions with respect to the transaction involved. Fund shall cause all oral
instructions to be confirmed in writing. Proper Instructions may include
communications effected directly between electro-mechanical or
15
electronic devices provided that Fund and State Street agree to security
procedures, including but not limited to, the security procedures selected by
Fund in the Funds Transfer Addendum attached hereto. For purposes of this
Section, Proper Instructions shall include instructions received by State Street
pursuant to any three-party agreement that requires a segregated asset account
in accordance with Section 2.9.
SECTION 7 ACTIONS PERMITTED WITHOUT EXPRESS AUTHORITY. State Street may in its
discretion, without express authority from Fund on behalf of each applicable
Portfolio:
1) make payments to itself or others for minor expenses of
handling securities or other similar items relating to its
duties hereunder, provided that all such payments shall be
accounted for to Fund on behalf of the Portfolio;
2) surrender securities in temporary form for securities in
definitive form;
3) endorse for collection, in the name of the Portfolio, checks,
drafts and other negotiable instruments; and
4) in general, attend to all non-discretionary details in
connection with the sale, exchange, substitution, purchase,
transfer and other dealings with the securities and property
of the Portfolio except as otherwise directed by the Board.
SECTION 8 EVIDENCE OF AUTHORITY. State Street shall be protected in acting upon
any instructions, notice, request, consent, certificate or other instrument or
paper believed by it to be genuine and to have been properly executed by or on
behalf of Fund. State Street may receive and accept a copy of a resolution
certified by the Secretary or an Assistant Secretary of Fund ("CERTIFIED
RESOLUTION") as conclusive evidence (a) of the authority of any person to act in
accordance with such resolution or (b) of any determination or of any action by
the Board as described in such resolution, and such resolution may be considered
as in full force and effect until receipt by State Street of written notice to
the contrary.
SECTION 9 DUTIES OF STATE STREET WITH RESPECT TO THE BOOKS OF ACCOUNT
AND CALCULATION OF NET ASSET VALUE
SECTION 9.1 ACCOUNTS AND RECORDS. State Street will prepare and
maintain, under the direction of and as interpreted by Fund, Fund's or
Portfolio's accountants and/or other advisors, in complete, accurate and current
form such accounts and records: (A) required to be maintained by Fund with
respect to portfolio transactions under the 1940 Act and the rules and
regulations from time to time adopted thereunder, with particular attention to
Rules 3a-1 and 31a-2; (B) required as a basis for calculation of each
Portfolio's net asset value; and (3) as otherwise agreed upon by the parties.
Fund will advise State Street in writing of all applicable record retention
requirements, other than those set forth in the 1940 Act. State Street will
preserve such accounts and records in the manner and for the periods prescribed
in the 1940 Act or for such longer period as is agreed upon by the parties. Fund
will furnish, in writing or its electronic or digital equivalent, accurate and
timely information needed by State Street to complete such accounts and records
when such information is not readily available from generally accepted
securities industry services or publications.
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SECTION 9.2 DELIVERY OF ACCOUNTS AND RECORDS. Fund will turn over or
cause to be turned over to State Street all accounts and records needed by State
Street to perform its duties and responsibilities hereunder fully and properly.
State Street may rely conclusively on the completeness and correctness of such
accounts and records.
SECTION 9.3 ACCOUNTS AND RECORDS PROPERTY OF FUND. State Street
acknowledges that all of the accounts and records maintained by State Street
pursuant hereto are the property of Fund, and will be made available to Fund for
inspection or reproduction within a reasonable period of time, upon demand.
State Street will assist Fund's independent auditors, or upon the prior written
approval of Fund, or upon demand, any regulatory body, in any requested review
of Fund's accounts and records but Fund will reimburse State Street for all
expenses and employee time invested in any such review outside of routine and
normal periodic reviews. Upon receipt from Fund of the necessary information or
instructions, State Street will supply information from the books and records it
maintains for Fund that Fund may reasonably request for tax returns,
questionnaires, periodic reports to shareholders and such other reports and
information requests as Fund and State Street may agree upon from time to time.
SECTION 9.4 ADOPTION OF PROCEDURES. State Street and Fund may from time
to time adopt such procedures as they agree upon, and State Street may
conclusively assume that no procedure approved or directed by Fund, Fund's or
Portfolio's accountants or other advisors conflicts with or violates any
requirements of Fund's Prospectus, governing documents, any applicable law, rule
or regulation, or any order, decree or agreement by which Fund may be bound.
Fund will be responsible for notifying State Street of any changes in statutes,
regulations, rules, requirements or policies which may impact State Street
responsibilities or procedures hereunder.
SECTION 9.5 VALUATION OF ASSETS. State Street will value the assets of
each Portfolio in accordance with Proper Instructions utilizing the pricing
sources designated by Fund ("PRICING SOURCES") on the Price Source and
Methodology Authorization Matrix, incorporated herein by this reference.
SECTION 9.6 LIMITATION OF LIABILITY. State Street is not responsible or
liable for, and Fund will indemnify and hold State Street harmless from and
against, any and all costs, expenses, losses, damages, charges, counsel fees
(including, without limitation, disbursements and the allocable cost of in-house
counsel), payments and liabilities which may be asserted against or incurred by
State Street or for which State Street may be held to be liable, arising out of
or attributable to any error, omission, inaccuracy or other deficiency in any
Portfolio's accounts and records or other information provided to State Street
by or on behalf of a Portfolio, including the accuracy of the prices quoted by
the Pricing Sources or for the information supplied by Fund to value the assets,
or the failure of Fund to provide, or provide in a timely manner, any accounts,
records, or information needed by State Street to perform its duties hereunder.
SECTION 10 OPINION OF FUND'S INDEPENDENT ACCOUNTANT. State Street shall take all
reasonable action, as Fund on behalf of each applicable Portfolio may from time
to time request, to obtain from year to year favorable opinions from Fund's
independent accountants with respect to its activities hereunder in connection
with the preparation of Fund's Form N-1A, and Form N-SAR or other annual reports
to the SEC and with respect to any other requirements thereof.
SECTION 11 REPORTS TO FUND BY INDEPENDENT PUBLIC ACCOUNTANTS. State Street shall
provide Fund, on behalf of each of the Portfolios at such times as Fund may
reasonably require,
17
with reports by independent public accountants on the accounting system,
internal accounting control and procedures for safeguarding securities, futures
contracts and options on futures contracts, including securities deposited
and/or maintained in any Securities System, relating to the services provided by
State Street hereunder; such reports, shall be of sufficient scope and in
sufficient detail, as may reasonably be required by Fund to provide reasonable
assurance that any material inadequacies would be disclosed by such examination,
and, if there are no such inadequacies, the reports shall so state.
SECTION 12 COMPENSATION OF STATE STREET. State Street shall be entitled to
reasonable compensation for its services and expenses as custodian and
recordkeeping agent, as agreed upon from time to time between Fund on behalf of
each applicable Portfolio and State Street.
SECTION 13 RESPONSIBILITY OF STATE STREET. So long as and to the extent that it
is in the exercise of reasonable care, State Street shall not be responsible for
the title, validity or genuineness of any property or evidence of title thereto
received by it or delivered by it pursuant hereto and shall be held harmless in
acting upon any notice, request, consent, certificate or other instrument
reasonably believed by it to be genuine and to be signed by the proper party or
parties, including any futures commission merchant acting pursuant to the terms
of a three-party futures or options agreement. State Street shall be held to the
exercise of reasonable care in carrying out the provisions hereof, but shall be
kept indemnified by and shall be without liability to Fund for any action taken
or omitted by it in good faith without negligence, including, without
limitation, acting in accordance with any Proper Instruction. It shall be
entitled to rely on and may act upon advice of counsel (who may be counsel for
Fund) on all matters, and shall be without liability for any action reasonably
taken or omitted pursuant to such advice. State Street shall be without
liability to Fund and the Portfolios for any loss, liability, claim or expense
resulting from or caused by anything which is part of Country Risk (as defined
in Section 3 hereof), including without limitation nationalization,
expropriation, currency restrictions, or acts of war, revolution, riots or
terrorism.
Except as may arise from State Street's own negligence or willful misconduct or
the negligence or willful misconduct of a sub-custodian or agent, State Street
shall be without liability to Fund for any loss, liability, claim or expense
resulting from or caused by; (i) events or circumstances beyond the reasonable
control of State Street or any sub-custodian or Securities System or any agent
or nominee of any of the foregoing, including, without limitation, the
interruption, suspension or restriction of trading on or the closure of any
securities market, power or other mechanical or technological failures or
interruptions, computer viruses or communications disruptions, work stoppages,
natural disasters, or other similar events or acts; (ii) errors by Fund or its
duly-authorized investment manager or investment advisor in their instructions
to State Street provided such instructions have been in accordance with this
Agreement; (iii) the insolvency of or acts or omissions by a Securities System;
(iv) any delay or failure of any broker, agent or intermediary, central bank or
other commercially prevalent payment or clearing system to deliver to State
Street's sub-custodian or agent securities purchased or in the remittance or
payment made in connection with securities sold; (v) any delay or failure of any
company, corporation, or other body in charge of registering or transferring
securities in the name of State Street, Fund, State Street's sub-custodians,
nominees or agents or any consequential losses arising out of such delay or
failure to transfer such securities including non-receipt of bonus, dividends
and rights and other accretions or benefits; (vi) delays or inability to perform
its duties due to any disorder in market infrastructure with respect to any
particular security or Securities System; and (vii) any provision of any present
or future law or regulation or order of the United
18
States of America, or any state thereof, or any other country, or political
subdivision thereof or of any court of competent jurisdiction.
State Street shall be liable for the acts or omissions of a Foreign
Sub-Custodian (as defined in Section 4 hereof) to the same extent as set forth
with respect to sub-custodians generally herein.
If Fund on behalf of a Portfolio requires State Street to take any action with
respect to securities, which action involves the payment of money or which
action may, in the opinion of State Street, result in State Street or its
nominee assigned to Fund or the Portfolio being liable for the payment of money
or incurring liability of some other form, Fund on behalf of the Portfolio, as a
prerequisite to requiring State Street to take such action, shall provide
indemnity to State Street in an amount and form satisfactory to it.
If Fund requires State Street, its affiliates, subsidiaries or agents, to
advance cash or securities for any purpose (including but not limited to
securities settlements, foreign exchange contracts and assumed settlement) or in
the event that State Street or its nominee shall incur or be assessed any taxes,
charges, expenses, assessments, claims or liabilities in connection with the
performance of this Agreement, except such as may arise from its or its
nominee's own negligent action, negligent failure to act or willful misconduct,
any property at any time held for the account of the applicable Portfolio shall
be security therefor and should Fund fail to repay State Street promptly, State
Street shall be entitled to utilize available cash and to dispose of such
Portfolio's assets to the extent necessary to obtain reimbursement.
In no event shall State Street be liable for indirect, special or consequential
damages.
SECTION 14 EFFECTIVE PERIOD, TERMINATION AND AMENDMENT. This Agreement shall
become effective as of its execution, shall continue in full force and effect
until terminated as hereinafter provided, may be amended at any time by mutual
agreement of the parties hereto and may be terminated by either party by an
instrument in writing delivered or mailed, postage prepaid to the other party,
such termination to take effect not sooner than sixty (60) days after the date
of such delivery or mailing; provided, however, that Fund shall not amend or
terminate this Agreement in contravention of any applicable federal or state
regulations, or any provision of the governing documents, and further provided,
that Fund on behalf of one or more of the Portfolios may at any time by action
of its Board (i) substitute another bank or trust company for State Street by
giving notice as described above to State Street, or (ii) immediately terminate
this Agreement in the event of the appointment of a conservator or receiver for
State Street by the Comptroller of the Currency or upon the happening of a like
event at the direction of an appropriate regulatory agency or court of competent
jurisdiction.
Upon termination hereof, Fund on behalf of each applicable Portfolio shall pay
to State Street such compensation as may be due as of the date of such
termination and shall likewise reimburse State Street for its costs, expenses
and disbursements.
SECTION 15 SUCCESSOR CUSTODIAN AND RECORDKEEPING AGENT. Upon termination of
State Street as recordkeeping agent, State Street shall, upon payment of all
sums due to it from Fund, deliver all accounts and records to the successor
recordkeeping agent (or, if none, to Fund) at the office of State Street.
19
Upon termination of State Street as Custodian, if a successor custodian for one
or more Portfolios shall be appointed by the Board, State Street shall deliver
to such successor custodian at the office of State Street, duly endorsed and in
the form for transfer, all securities of each applicable Portfolio then held by
it hereunder and shall transfer to an account of the successor custodian all of
the securities of each such Portfolio held in a Securities System.
If no such successor custodian shall be appointed, State Street shall, in like
manner, upon receipt of a Certified Resolution, deliver at the office of State
Street and transfer such securities, funds and other properties in accordance
with such resolution.
In the event that no written order designating a successor custodian or
Certified Resolution shall have been delivered to State Street on or before the
date when such termination shall become effective, then State Street shall have
the right to deliver to a bank or trust company, which is a "bank" as defined in
the 1940 Act, doing business in Boston, Massachusetts, or New York, New York, of
its own selection, having an aggregate capital, surplus, and undivided profits,
as shown by its last published report, of not less than $25,000,000, all
securities, funds and other properties held by State Street on behalf of each
applicable Portfolio and all instruments held by State Street relative thereto
and all other property held by it hereunder on behalf of each applicable
Portfolio, and to transfer to an account of such successor custodian all of the
securities of each such Portfolio held in any Securities System. Thereafter,
such bank or trust company shall be the successor of State Street hereunder.
In the event that accounts, records, securities, funds and other properties
remain in the possession of State Street after the date of termination hereof
owing to failure of Fund to procure the Certified Resolution to appoint a
successor custodian or otherwise, State Street shall be entitled to fair
compensation for its services during such period as State Street retains
possession of such accounts, records, securities, funds and other properties and
the provisions hereof relating to the duties and obligations of State Street
shall remain in full force and effect.
SECTION 16 GENERAL
SECTION 16.1 INTERPRETIVE AND ADDITIONAL PROVISIONS. In connection with
the operation hereof, State Street and 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 hereof as may in their joint opinion be consistent with the
general tenor of this Agreement. Any such interpretive or additional provisions
shall be in a writing signed by both parties and shall be annexed hereto,
provided that no such interpretive or additional provisions shall contravene any
applicable federal or state regulations or any provision of the governing
documents. No interpretive or additional provisions made as provided in the
preceding sentence shall be deemed to be an amendment of this Agreement.
SECTION 16.2 ADDITIONAL PORTFOLIOS. In the event that Fund establishes
one or more additional series with respect to which it desires to have State
Street render services as custodian and recordkeeping agent under the terms
hereof, it shall so notify State Street in writing, and if State Street agrees
to provide such services, such series shall become a Portfolio hereunder.
SECTION 16.3 MASSACHUSETTS LAW TO APPLY. This Agreement shall be
construed and the provisions thereof interpreted under and in accordance with
laws of The Commonwealth of Massachusetts.
20
SECTION 16.4 PRIOR AGREEMENTS. This Agreement supersedes and
terminates, as of the date hereof, all prior agreements between Fund on behalf
of each of the Portfolios and State Street relating to the custody or
recordkeeping of Fund's assets, as more specifically set forth on Exhibit A
hereto.
SECTION 16.5 NOTICES. Any notice, instruction or other instrument
required to be given hereunder may be delivered in person to the offices of the
parties as set forth herein during normal business hours or delivered prepaid
registered mail or by telex, cable or telecopy to the parties at the following
addresses or such other addresses as may be notified by any party from time to
time.
To Fund: To State Street:
ING PILGRIM INVESTMENTS STATE STREET BANK AND TRUST COMPANY
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ 801 Pennsylvania Avenue
Scottsdale, Arizona 85258-2034 ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Attention: Vice President, Custody
Telephone: ▇▇▇-▇▇▇-▇▇▇▇ Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇ Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Such notice, instruction or other instrument shall be deemed to have been served
in the case of a registered letter at the expiration of five business days after
posting, in the case of cable twenty-four hours after dispatch and, in the case
of telex, immediately on dispatch and if delivered outside normal business hours
it shall be deemed to have been received at the next time after delivery when
normal business hours commence and in the case of cable, telex or telecopy on
the business day after the receipt thereof. Evidence that the notice was
properly addressed, stamped and put into the post shall be conclusive evidence
of posting.
SECTION 16.6 REPRODUCTION OF DOCUMENTS. This Agreement and all
schedules, addenda, exhibits, attachments and amendments hereto may be
reproduced by any photographic, photostatic, microfilm, micro-card, miniature
photographic or other similar process. The parties hereto all/each agree that
any such reproduction shall be admissible in evidence as the original itself in
any judicial or administrative proceeding, whether or not the original is in
existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
SECTION 16.7 REMOTE ACCESS SERVICES ADDENDUM. State Street and Fund
agree to be bound by the terms of the Remote Access Services Addendum attached
hereto.
SECTION 16.8 ASSIGNMENT. Except as otherwise set forth herein, this
Agreement may not be assigned by either party without the written consent of the
other.
SECTION 16.9 COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original, and all such
counterparts taken together shall constitute but one and the same Agreement.
21
SECTION 16.10 SEVERABILITY. If any provision in this Agreement is
determined to be invalid, illegal, in conflict with any law or otherwise
unenforceable, the remaining provisions hereof will be considered severable and
will not be affected thereby, and every remaining provision hereof will remain
in full force and effect and will remain enforceable to the fullest extent
permitted by applicable law.
SECTION 16.11 SHAREHOLDER COMMUNICATIONS ELECTION. SEC Rule 14b-2
requires banks which hold securities for the account of customers to respond to
requests by issuers of securities for the names, addresses and holdings of
beneficial owners of securities of that issuer held by the bank unless the
beneficial owner has expressly objected to disclosure of this information. In
order to comply with the rule, State Street needs Fund to indicate whether it
authorizes State Street to provide Fund's name, address, and share position to
requesting companies whose securities Fund owns. If Fund tells ▇▇▇▇▇ ▇▇▇▇▇▇
"▇▇", ▇▇▇▇▇ ▇▇▇▇▇▇ will not provide this information to requesting companies. If
Fund tells State Street "yes" or does not check either "yes" or "no" below,
State Street is required by the rule to treat Fund as consenting to disclosure
of this information for all securities owned by Fund or any funds or accounts
established by Fund. For Fund's protection, the Rule prohibits the requesting
company from using Fund's name and address for any purpose other than corporate
communications. Please indicate below whether Fund consents or objects by
checking one of the alternatives below.
YES [ ] State Street is authorized to release Fund's name, address, and share
positions.
NO [X] State Street is not authorized to release Fund's name, address, and
share positions.
IN WITNESS WHEREOF, each of the parties has caused this instrument to
be executed in its name and behalf by its duly authorized representative
effective as of the day and year first written above.
ON BEHALF OF EACH OF THE FUNDS
SET FORTH ON EXHIBIT A HERETO FUND SIGNATURE ATTESTED TO BY:
By: ______________________________ By: ____________________________
Name: _____________________________ Name: __________________________
Title: ____________________________ Title: *[secretary/ass't secretary]
STATE STREET BANK AND TRUST COMPANY SIGNATURE ATTESTED TO BY:
By: ______________________________ By: ____________________________
Name: _____________________________ Name: __________________________
Title: ____________________________ Title: _________________________
22
EXHIBIT A: LIST OF FUNDS
------------------------------------------------------------------------------------------------------------------------------------
ENTITY NAME JURISDICTION PRIOR CONTRACT(S)
------------------------------------------------------------------------------------------------------------------------------------
PILGRIM FINANCIAL SERVICES FUND, INC. Maryland corporation Custody Agreement with Pilgrim Bank and
Thrift Fund, Inc. dated 2/4/97
Recordkeeping Agreement with Pilgrim Bank
and Thrift Fund, Inc. dated 2/4/97
------------------------------------------------------------------------------------------------------------------------------------
PILGRIM EQUITY TRUST Massachusetts Business Trust Custodian Agreement dated 8/20/1998
Pilgrim Biotechnology Fund
Pilgrim MidCap Opportunities Fund
Pilgrim Principal Protection Fund
Pilgrim Principal Protection Fund II
ING SmallCap Value Fund
ING MidCap Value Fund
------------------------------------------------------------------------------------------------------------------------------------
PILGRIM FUNDS TRUST Delaware Business Trust Custody Agreement with ING Funds Trust
Pilgrim High Yield Bond Fund dated 10/30/1998
Pilgrim Intermediate Bond Fund
Pilgrim Internet Fund
Pilgrim National Tax-Exempt Bond Fund
Pilgrim Tax Efficient Equity Fund
Pilgrim National Tax-Exempt Money Market Fund
ING Pilgrim Money Market Fund
------------------------------------------------------------------------------------------------------------------------------------
PILGRIM GNMA INCOME FUND, INC. Custody Agreement dated 7/26/2000
(Schedule A)
Recordkeeping Agreement dated 7/26/2000
(Schedule A)
------------------------------------------------------------------------------------------------------------------------------------
PILGRIM GROWTH AND INCOME FUND, INC. Custody Agreement dated 7/26/2000
(Schedule A)
------------------------------------------------------------------------------------------------------------------------------------
23
------------------------------------------------------------------------------------------------------------------------------------
Recordkeeping Agreement dated 7/26/2000
(Schedule A)
------------------------------------------------------------------------------------------------------------------------------------
PILGRIM GROWTH OPPORTUNITIES FUND Massachusetts Business Trust Custodian Contract dated 6/27/94 (Exhibit
A)
------------------------------------------------------------------------------------------------------------------------------------
PILGRIM INVESTMENT FUNDS, INC. Maryland corporation Custody Agreement with Pilgrim America
Pilgrim MagnaCap Fund Investment Funds, Inc. dated 2/4/97
Pilgrim High Yield Fund
Recordkeeping Agreement with Pilgrim
America Investment Funds, Inc. dated
2/4/97
------------------------------------------------------------------------------------------------------------------------------------
PILGRIM MAYFLOWER TRUST Massachusetts Business Trust Letter Agreement dated _____
Pilgrim Growth + Value Fund
Pilgrim Research Enhanced Index Fund
------------------------------------------------------------------------------------------------------------------------------------
PILGRIM MUTUAL FUNDS Delaware Trust Custody Agreement dated 5/24/99
Pilgrim LargeCap Growth Fund
Pilgrim MidCap Growth Fund [Recordkeeping Agreement dated 5/24/99]
Pilgrim SmallCap Growth Fund
Pilgrim Convertible Fund
Pilgrim Balanced Fund
Pilgrim High Yield Fund II
Pilgrim Strategic Income Fund
Pilgrim Money Market Fund
------------------------------------------------------------------------------------------------------------------------------------
PILGRIM NATURAL RESOURCES TRUST Custody Agreement dated 7/26/2000
(Schedule A)
------------------------------------------------------------------------------------------------------------------------------------
24
------------------------------------------------------------------------------------------------------------------------------------
Recordkeeping Agreement dated 7/26/2000
(Schedule A)
------------------------------------------------------------------------------------------------------------------------------------
PILGRIM SENIOR INCOME FUND Delaware Business Trust Custody Agreement dated 12/15/2000
Recordkeeping Agreement dated 12/15/2000
------------------------------------------------------------------------------------------------------------------------------------
PILGRIM SMALLCAP OPPORTUNITIES FUND Massachusetts Business Trust Custodian Contract dated 6/27/94 (Exhibit
A)
------------------------------------------------------------------------------------------------------------------------------------
PILGRIM PRIME RATE TRUST Massachusetts business trust Custody Agreement dated 7/1/96
Recordkeeping Agreement dated 7/1/96
------------------------------------------------------------------------------------------------------------------------------------
PILGRIM VARIABLE PRODUCTS TRUST Custodian Contract dated 4/15/94
Pilgrim VP Convertible Portfolio
Pilgrim VP Financial Services Portfolio
Pilgrim VP Growth & Income Portfolio
Pilgrim VP Growth + Value Portfolio
Pilgrim VP LargeCap Growth Portfolio
Pilgrim VP SmallCap Opportunities Portfolio
Pilgrim VP Research Enhanced Index Portfolio
Pilgrim VP High Yield Bond Portfolio
Pilgrim VP MagnaCap Portfolio
Pilgrim VP Growth Opportunities Portfolio
Pilgrim ▇▇ ▇▇▇▇▇▇ Opportunities Portfolio
------------------------------------------------------------------------------------------------------------------------------------
25
------------------------------------------------------------------------------------------------------------------------------------
USLICO SERIES FUND Massachusetts Business Trust Custodian Contract dated 10/16/1997
Asset Allocation Portfolio
Bond Portfolio
Money Market Portfolio
Stock Portfolio
------------------------------------------------------------------------------------------------------------------------------------
LEXINGTON MONEY MARKET TRUST Custody Agreement dated 7/26/2000
(Schedule A)
Recordkeeping Agreement dated 7/26/2000
(Schedule A)
------------------------------------------------------------------------------------------------------------------------------------
26
SCHEDULE A
STATE STREET
GLOBAL CUSTODY NETWORK
SUBCUSTODIANS AND NON-MANDATORY DEPOSITORIES
COUNTRY SUBCUSTODIAN NON-MANDATORY DEPOSITORIES
Argentina Citibank, N.A. --
Australia Westpac Banking Corporation --
Austria Erste Bank der Oesterreichischen --
Sparkassen AG
Bahrain British Bank of the Middle East --
(as delegate of The Hongkong and
Shanghai Banking Corporation Limited)
Bangladesh Standard Chartered Bank --
Belgium Generale de Banque --
Bermuda The Bank of Bermuda Limited --
Bolivia Banco Boliviano Americano S.A. --
Botswana Barclays Bank of Botswana Limited --
Brazil Citibank, N.A. --
Bulgaria ING Bank N.V. --
Canada State Street Trust Company Canada --
Chile Citibank, N.A. Deposito Central de Valores S.A.
People's Republic The Hongkong and Shanghai --
of China Banking Corporation Limited,
Shanghai and Shenzhen branches
Colombia Cititrust Colombia S.A. --
Sociedad Fiduciaria
1
SCHEDULE A
STATE STREET
GLOBAL CUSTODY NETWORK
SUBCUSTODIANS AND NON-MANDATORY DEPOSITORIES
COUNTRY SUBCUSTODIAN NON-MANDATORY DEPOSITORIES
Costa Rica Banco BCT S.A. --
Croatia Privredna Banka Zagreb d.d --
Cyprus The Cyprus Popular Bank Ltd. --
Czech Republic Ceskoslovenska Obchodni --
Banka, A.S.
Denmark Den Danske Bank --
Ecuador Citibank, N.A. --
Egypt National Bank of Egypt --
Estonia Hansabank --
Finland ▇▇▇▇▇▇ Bank Limited --
France Banque Paribas --
Germany Dresdner Bank AG --
Ghana Barclays Bank of Ghana Limited --
Greece National Bank of Greece S.A. The Bank of Greece,
System for Monitoring Transactions in
Securities in Book-Entry Form
Hong Kong Standard Chartered Bank --
Hungary Citibank Budapest Rt. --
2
SCHEDULE A
STATE STREET
GLOBAL CUSTODY NETWORK
SUBCUSTODIANS AND NON-MANDATORY DEPOSITORIES
COUNTRY SUBCUSTODIAN NON-MANDATORY DEPOSITORIES
Iceland Icebank Ltd.
India Deutsche Bank AG --
The Hongkong and Shanghai
Banking Corporation Limited
Indonesia Standard Chartered Bank --
Ireland Bank of Ireland --
Israel Bank Hapoalim B.M. --
Italy Banque Paribas --
Ivory Coast Societe Generale de Banques --
en Cote d'Ivoire
Jamaica Scotiabank Jamaica Trust and Merchant --
Bank Ltd.
Japan The Fuji Bank, Limited Japan Securities Depository
Center
Sumitomo Bank, Ltd.
Jordan British Bank of the Middle East --
(as delegate of The Hongkong and
Shanghai Banking Corporation Limited)
Kenya Barclays Bank of Kenya Limited --
Republic of Korea The Hongkong and Shanghai Banking
Corporation Limited
Latvia JSC Hansabank-Latvija --
3
SCHEDULE A
STATE STREET
GLOBAL CUSTODY NETWORK
SUBCUSTODIANS AND NON-MANDATORY DEPOSITORIES
COUNTRY SUBCUSTODIAN NON-MANDATORY DEPOSITORIES
Lebanon British Bank of the Middle East
(as delegate of The Hongkong and
Shanghai Banking Corporation Limited)
Lithuania Vilniaus Bankas AB --
Malaysia Standard Chartered Bank --
Malaysia Berhad
Mauritius The Hongkong and Shanghai --
Banking Corporation Limited
Mexico Citibank Mexico, S.A. --
Morocco Banque Commerciale du Maroc --
Namibia (via) Standard Bank of South Africa -
The Netherlands MeesPierson N.V. --
New Zealand ANZ Banking Group --
(New Zealand) Limited
Norway Christiania Bank og --
Kreditkasse
Oman British Bank of the Middle East --
(as delegate of The Hongkong and
Shanghai Banking Corporation Limited)
Pakistan Deutsche Bank AG --
Peru Citibank, N.A. --
Philippines Standard Chartered Bank --
4
SCHEDULE A
STATE STREET
GLOBAL CUSTODY NETWORK
SUBCUSTODIANS AND NON-MANDATORY DEPOSITORIES
COUNTRY SUBCUSTODIAN NON-MANDATORY DEPOSITORIES
Poland Citibank (Poland) S.A. --
Bank Polska Kasa Opieki S.A.
Portugal Banco Comercial Portugues --
Romania ING Bank N.V. --
Russia Credit Suisse First Boston AO, Moscow --
(as delegate of Credit Suisse
First Boston, Zurich)
Singapore The Development Bank --
of Singapore Limited
Slovak Republic Ceskoslovenska Obchodni Banka, A.S. --
Slovenia Bank Austria d.d. Ljubljana --
South Africa Standard Bank of South Africa Limited --
Spain Banco Santander, S.A. --
Sri Lanka The Hongkong and Shanghai --
Banking Corporation Limited
Swaziland Standard Bank Swaziland Limited --
Sweden Skandinaviska Enskilda Banken --
Switzerland UBS AG --
Taiwan - R.O.C. Central Trust of China --
Thailand Standard Chartered Bank --
5
SCHEDULE A
STATE STREET
GLOBAL CUSTODY NETWORK
SUBCUSTODIANS AND NON-MANDATORY DEPOSITORIES
COUNTRY SUBCUSTODIAN NON-MANDATORY DEPOSITORIES
Trinidad & Tobago Republic Bank Limited --
Tunisia Banque Internationale Arabe de Tunisie --
Turkey Citibank, N.A. --
Ottoman Bank
Ukraine ING Bank, Ukraine --
United Kingdom State Street Bank and Trust Company, --
London Branch
Uruguay Citibank, N.A. --
Venezuela Citibank, N.A. --
Zambia Barclays Bank of Zambia Limited --
Zimbabwe Barclays Bank of Zimbabwe Limited --
Euroclear (The Euroclear System)/State Street London Limited
Cedel, S.A. (Cedel Bank, societe anonyme)/State Street London Limited
INTERSETTLE (for EASDAQ Securities)
6
SCHEDULE B
STATE STREET
GLOBAL CUSTODY NETWORK
MANDATORY* DEPOSITORIES
COUNTRY MANDATORY DEPOSITORIES
Argentina Caja de Valores S.A.
Australia Austraclear Limited
Reserve Bank Information and
Transfer System
Austria Oesterreichische Kontrollbank AG
(Wertpapiersammelbank Division)
Belgium Caisse Interprofessionnelle de Depot et
de Virement de Titres S.A.
Banque Nationale de Belgique
Brazil Companhia Brasileira de Liquidacao e
Custodia (CBLC)
Bolsa de Valores de Rio de Janeiro
All SSB clients presently use CBLC
Central de Custodia e de Liquidacao Financeira
de Titulos
Bulgaria Central Depository AD
Bulgarian National Bank
Canada The Canadian Depository
for Securities Limited
People's Republic Shanghai Securities Central Clearing and
of China Registration Corporation
Shenzhen Securities Central Clearing Co., Ltd.
Costa Rica Central de Valores S.A. (CEVAL)
Croatia Ministry of Finance
National Bank of Croatia
* Mandatory depositories include entities for which use is mandatory as a matter
of law or effectively mandatory as a matter of market practice.
1
SCHEDULE B
STATE STREET
GLOBAL CUSTODY NETWORK
MANDATORY* DEPOSITORIES
COUNTRY MANDATORY DEPOSITORIES
Czech Republic Stredisko cennych papiru(degree)
Czech National Bank
Denmark Vaerdipapircentralen (the Danish
Securities Center)
Egypt Misr Company for Clearing, Settlement,
and Central Depository
Estonia Eesti Vaartpaberite Keskdepositoorium
Finland The Finnish Central Securities
Depository
France Societe Interprofessionnelle
pour la Compensation des
Valeurs Mobilieres (SICOVAM)
Germany Deutsche Borse Clearing AG
Greece The Central Securities Depository
(Apothetirion Titlon AE)
Hong Kong The Central Clearing and
Settlement System
Central Money Markets Unit
Hungary The Central Depository and Clearing
House (Budapest) Ltd. (KELER)
[Mandatory for Gov't Bonds only;
SSB does not use for other securities]
India The National Securities Depository Limited
Indonesia Bank Indonesia
Ireland Central Bank of Ireland
Securities Settlement Office
* Mandatory depositories include entities for which use is mandatory as a matter
of law or effectively mandatory as a matter of market practice.
2
SCHEDULE B
STATE STREET
GLOBAL CUSTODY NETWORK
MANDATORY* DEPOSITORIES
COUNTRY MANDATORY DEPOSITORIES
Israel The Tel Aviv Stock Exchange Clearing
House Ltd.
Bank of Israel
Italy Monte Titoli S.p.A.
Banca d'Italia
Ivory Coast Depositaire Central - Banque de Reglement
Jamaica The Jamaican Central Securities Depository
Japan Bank of Japan Net System
Kenya Central Bank of Kenya
Republic of Korea Korea Securities Depository Corporation
Latvia The Latvian Central Depository
Lebanon The Custodian and Clearing Center of
Financial Instruments for Lebanon
and the Middle East (MIDCLEAR) ▇.▇.▇.
The Central Bank of Lebanon
Lithuania The Central Securities Depository of Lithuania
Malaysia The Malaysian Central Depository Sdn. Bhd.
Bank Negara Malaysia,
Scripless Securities Trading and Safekeeping System
Mauritius The Central Depository & Settlement
Co. Ltd.
* Mandatory depositories include entities for which use is mandatory as a matter
of law or effectively mandatory as a matter of market practice.
3
SCHEDULE B
STATE STREET
GLOBAL CUSTODY NETWORK
MANDATORY* DEPOSITORIES
COUNTRY MANDATORY DEPOSITORIES
Mexico S.D. INDEVAL, S.A. de C.V.
(Instituto para el Deposito de
Valores)
Morocco Maroclear
The Netherlands Nederlands Centraal Instituut voor
Giraal Effectenverkeer B.V. (NECIGEF)
De Nederlandsche Bank N.V.
New Zealand New Zealand Central Securities
Depository Limited
Norway Verdipapirsentralen (the Norwegian
Registry of Securities)
Oman Muscat Securities Market
Pakistan Central Depository Company of Pakistan Limited
Peru Caja de Valores y Liquidaciones S.A.
(CAVALI)
Philippines The Philippines Central Depository, Inc.
The Registry of Scripless Securities
(▇▇▇▇) of the Bureau of the Treasury
Poland The National Depository of Securities
(Krajowy Depozyt Papierow Wartosciowych)
Central Treasury Bills Registrar
Portugal Central de Valores Mobiliarios (Central)
Romania National Securities Clearing, Settlement and
Depository Co.
* Mandatory depositories include entities for which use is mandatory as a matter
of law or effectively mandatory as a matter of market practice.
4
SCHEDULE B
STATE STREET
GLOBAL CUSTODY NETWORK
MANDATORY* DEPOSITORIES
COUNTRY MANDATORY DEPOSITORIES
Bucharest Stock Exchange Registry Division
Singapore The Central Depository (Pte)
Limited
Monetary Authority of Singapore
Slovak Republic Stredisko Cennych Papierov
National Bank of Slovakia
Slovenia Klirinsko Depotna ▇▇▇▇▇▇ ▇.▇.
South Africa The Central Depository Limited
Spain Servicio de Compensacion y
Liquidacion de Valores, S.A.
Banco de Espana,
Central de Anotaciones en Cuenta
Sri Lanka Central Depository System
(Pvt) Limited
Sweden Vardepapperscentralen AB
(the Swedish Central Securities Depository)
Switzerland Schweizerische Effekten - Giro AG
Taiwan - R.O.C. The Taiwan Securities Central
Depository Co., Ltd.
Thailand Thailand Securities Depository
Company Limited
Tunisia Societe Tunisienne Interprofessionelle de
Compensation et de Depot de
Valeurs Mobilieres
* Mandatory depositories include entities for which use is mandatory as a matter
of law or effectively mandatory as a matter of market practice.
5
SCHEDULE B
STATE STREET
GLOBAL CUSTODY NETWORK
MANDATORY* DEPOSITORIES
COUNTRY MANDATORY DEPOSITORIES
Central Bank of Tunisia
Tunisian Treasury
Turkey Takas ve Saklama Bankasi A.S.
(TAKASBANK)
Central Bank of Turkey
Ukraine The National Bank of Ukraine
United Kingdom The Bank of England,
The Central Gilts Office and
The Central Moneymarkets Office
Uruguay Central Bank of Uruguay
Venezuela Central Bank of Venezuela
Zambia Lusaka Central Depository Limited
Bank of Zambia
* Mandatory depositories include entities for which use is mandatory as a matter
of law or effectively mandatory as a matter of market practice.
6
EXHIBIT C
The Guide to Custody in World Markets An overview of safekeeping and settlement practices and
(annually) procedures in each market in which State Street Bank and Trust
Company offers custodial services.
Global Custody Network Review Information relating to the operating history and structure of
(annually) depositories and subcustodians located in the markets in which State
Street Bank and Trust Company offers custodial services, including
transnational depositories.
Global Legal Survey With respect to each market in which State Street Bank and
(annually) Trust Company offers custodial services, opinions relating to whether
local law restricts (i) access of a fund's independent public
accountants to books and records of a Foreign Sub-Custodian or
Foreign Securities System, (ii) the Fund's ability to recover in the
event of bankruptcy or insolvency of a Foreign Sub-Custodian or
Foreign Securities System, (iii) the Fund's ability to recover in the
event of a loss by a Foreign Sub-Custodian or Foreign Securities
System, and (iv) the ability of a foreign investor to convert cash
and cash equivalents to U.S. dollars.
Subcustodian Agreements Copies of the subcustodian contracts State Street Bank and
(annually) Trust Company has entered into with each subcustodian in the markets
in which State Street Bank and Trust Company offers subcustody
services to its US mutual fund clients.
Network Bulletins (weekly): Developments of interest to investors in the markets in which State
Street Bank and Trust Company offers custodial services.
Foreign Custody Advisories (as
necessary): With respect to markets in which State Street Bank and Trust Company
offers custodial services which exhibit special custody risks,
developments which may impact State Street's ability to deliver
expected levels of service.
1
FUNDS TRANSFER OPERATING GUIDELINES
1. OBLIGATION OF THE SENDER: State Street Bank and Trust Company and affiliates
("SSB") is authorized to promptly debit Client's account(s) upon the receipt of
a payment order in compliance with any of the Security Procedures chosen by the
Client, from those offered on the attached selection form (and any updated
selection forms hereafter executed by the Client), for funds transfers and in
the amount of money that SSB has been instructed to transfer. SSB is hereby
instructed to accept funds transfer instructions only via the delivery methods
and Security Procedures indicated on the attached selection form (and any
updated selection forms hereafter executed by the Client). The Client agrees
that the Security Procedures are reasonable and adequate for its wire transfer
transactions and agrees to be bound by any payment orders, amendments and
cancellations, whether or not authorized, issued in its name and accepted by SSB
after being confirmed by any of the selected Security Procedures. The Client
also agrees to be bound by any other valid and authorized payment order accepted
by SSB. SSB shall execute payment orders in compliance with the selected
Security Procedures and with the Client's/Investment Manager's instructions on
the execution date provided that such payment order is received by the customary
deadline for processing such a request, unless the payment order specifies a
later time. SSB will use reasonable efforts to execute on the execution date
payment orders received after the customary deadline, but if it is unable to
execute any such payment order on the execution date, such payment order will be
deemed to have been received on the next business day.
2. SECURITY PROCEDURES: The Client acknowledges that the selected Security
Procedures were selected by the Client from Security Procedures offered by SSB.
The Client shall restrict access to confidential information relating to the
Security Procedures to authorized persons as communicated in writing to SSB. The
Client must notify SSB immediately if it has reason to believe unauthorized
persons may have obtained access to such information or of any change in the
Client's authorized personnel. SSB shall verify the authenticity of all
instructions according to the selected Security Procedures.
3. ACCOUNT NUMBERS: SSB shall process all payment orders on the basis of the
account number contained in the payment order. In the event of a discrepancy
between any name indicated on the payment order and the account number, the
account number shall take precedence and govern. Financial institutions that
receive payment orders initiated by SSB at the instruction of the Client may
also process payment orders on the basis of account numbers, regardless of any
name included in the payment order. SSB will also rely on any financial
institution identification numbers included in any payment order, regardless of
any financial institution name included in the payment order.
4. REJECTION: SSB reserves the right to decline to process or delay the
processing of a payment order which (a) is in excess of the collected balance in
the account to be charged at the time of SSB's receipt of such payment order;
(b) if initiating such payment order would cause SSB, in SSB's sole judgment, to
exceed any applicable volume, aggregate dollar, network, time, credit or similar
limits upon wire transfers; or (c) if SSB, in good faith, is unable to satisfy
itself that the transaction has been properly authorized.
5. CANCELLATION OR AMENDMENT: SSB shall use reasonable efforts to act on all
authorized requests to cancel or amend payment orders received in compliance
with the selected Security Procedures provided that such requests are received
in sufficient time to afford SSB a reasonable opportunity to act prior to
executing the payment order. However, SSB assumes no liability if the request
for amendment or cancellation cannot be satisfied by SSB's reasonable efforts.
6. ERRORS: SSB shall assume no responsibility for failure to detect any
erroneous payment order provided that SSB complies with the payment order
instructions as received and SSB complies with the selected Security Procedures.
The Security Procedures are established for the purpose of authenticating
payment orders only and not for the detection of errors in payment orders.
7. INTEREST AND LIABILITY LIMITS: SSB shall assume no responsibility for lost
interest with respect to the refundable amount of any unauthorized payment
order, unless SSB is notified of the unauthorized payment order within thirty
(30) days of notification by SSB of the acceptance of such payment order. In no
event (including but not limited to failure to execute a payment order) shall
SSB be liable for special, indirect or consequential damages, even if advised of
the possibility of such damages.
8. AUTOMATED CLEARING HOUSE ("ACH") CREDIT ENTRIES/PROVISIONAL PAYMENTS: When
the Client initiates or receives ACH credit and debit entries pursuant to these
Guidelines and the rules of the National Automated Clearing House Association
and the Mid-America Payment Exchange or other similar body, SSB or its agent
will act as an Originating Depository Financial Institution and/or Receiving
Depository Financial Institution, as the case may be, with respect to such
entries. Credits given with respect to an ACH credit entry are provisional until
final settlement for such entry is received from the Federal Reserve Bank. If
such final settlement is not received, the Client agrees to promptly refund the
amount credited to the Client in connection with such entry, and the party
making payment to the Client via such entry shall not be deemed to have paid the
amount of the entry.
9. CONFIRMATIONS: Confirmation of SSB's execution of payment orders shall
ordinarily be provided within 24 hours. Notice may be delivered through SSB's
account statements, advices, information systems, or by facsimile or callback.
The Client must report any objections to the execution of a payment order within
30 days.
10. MISCELLANEOUS: SSB may use the Federal Reserve System Fedwire to execute
payment orders, and any payment order carried in whole or in part through
Fedwire will be subject to applicable Federal Reserve Board rules and
regulations. SSB and the Client agree to cooperate to attempt to recover any
funds erroneously paid to wrong parties, regardless of any fault of SSB or the
Client, but the party responsible for the erroneous payment shall bear all costs
and expenses incurred in trying to effect such recovery. These Guidelines may
not be amended except by a written agreement signed by the parties.
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11. LIABILITY ON FOREIGN ACCOUNTS: State Street shall not be required to repay
any deposit made at a non-U.S. branch of State Street, or any deposit made with
State Street and denominated in a non-U.S. dollar currency, if repayment of such
deposit or the use of assets denominated in the non-U.S. dollar currency is
prevented, prohibited or otherwise blocked due to: (a) an act of war,
insurrection or civil strife; (b) any action by a non-U.S. government or
instrumentality or authority asserting governmental, military or police power of
any kind, whether such authority be recognized as a defacto or a dejure
government, or by any entity, political or revolutionary movement or otherwise
that usurps, supervenes or otherwise materially impairs the normal operation of
civil authority; or (c) the closure of a non-U.S. branch of State Street in
order to prevent, in the reasonable judgment of State Street, harm to the
employees or property of State Street. The obligation to repay any such deposit
shall not be transferred to and may not be enforced against any other branch of
State Street.
The foregoing provisions constitute the disclosure required by Massachusetts
General Laws, Chapter 167D, Section 36.
While State Street is not obligated to repay any deposit made at a non-U.S.
branch or any deposit denominated in a non-U.S. currency during the period in
which its repayment has been prevented, prohibited or otherwise blocked, State
Street will repay such deposit when and if all circumstances preventing,
prohibiting or otherwise blocking repayment cease to exist
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SECURITY PROCEDURES SELECTION FORM
Please select at least two of the funds transfer security procedures indicated
below.
[] SWIFT
SWIFT (Society for Worldwide Interbank Financial Telecommunication) is a
cooperative society owned and operated by member financial institutions
that provides telecommunication services for its membership. Participation
is limited to securities brokers and dealers, clearing and depository
institutions, recognized exchanges for securities, and investment
management institutions. SWIFT provides a number of security features
through encryption and authentication to protect against unauthorized
access, loss or wrong delivery of messages, transmission errors, loss of
confidentiality and fraudulent changes to messages.
Selection of this security procedure would be most appropriate for
existing SWIFT members.
[] REMOTE BATCH TRANSMISSION
Wire transfer instructions are delivered via Computer-to-Computer
(CPU-CPU) data communications between the Client and/or its agent and SSB
and/or its agent. Security procedures include encryption and/or the use of
a test key by those individuals authorized as Automated Batch Verifiers or
a callback procedure to those individuals.
Clients selecting this option should have an existing facility for
completing CPU-CPU transmissions. This delivery mechanism is typically
used for high-volume business such as shareholder redemptions and dividend
payments.
[] AUTOMATED CLEARING HOUSE (ACH)
SSB or its agent receives an automated transmission from a Client for the
initiation of payment (credit) or collection (debit) transactions through
the ACH network. The transactions contained on each transmission or tape
must be authenticated by the Client. The transmission is sent from the
Client's or its agent's system to SSB's or its agent's system with
encryption.
[] REPETITIVE WIRES
For situations where funds are transferred periodically from an existing
authorized account to the same payee (destination bank and account number)
and only the date and currency amount are variable, a repetitive wire may
be implemented. Repetitive wires will be subject to a $10 million limit.
If the payment order exceeds the $10 million limit, the instruction will
be confirmed by Telephone Confirmation (Call Back) or Test Key prior to
execution. Repetitive wire instructions must be reconfirmed annually.
Clients may establish Repetitive Wires by following the agreed upon
security procedures as described by Telephone Confirmation (Call Back) or
Test Key.
This alternative is recommended whenever funds are frequently transferred
between the same two accounts. IF THIS OPTION IS SELECTED, CHOOSE EITHER
TELEPHONE CONFIRMATION OR TEST KEY TO BE USED AS A SECONDARY PROCEDURE
WHEN OVER $10 MILLION.
[] STANDING INSTRUCTIONS
Funds are transferred by SSB to a counter party on the Client's
established list of authorized counter parties. Only the date and the
dollar amount are variable. Clients may establish Standby Instructions by
following the agreed upon security procedures as described by Telephone
Confirmation (Call Back) or Test Key. Additional paperwork will be
required from insurance Clients using 1031 drawdowns.
This option is used for transactions that include but are not limited to
Foreign Exchange Contracts, Time Deposits and Tri-Party Repurchase
Agreements. IF THIS OPTION IS SELECTED, CHOOSE EITHER TELEPHONE
CONFIRMATION OR TEST KEY TO BE USED AS A SECONDARY PROCEDURE WHEN OVER $10
MILLION.
[] TELEPHONE CONFIRMATION (CALL BACK)
This procedure requires Clients to designate individuals as authorized
initiators and authorized verifiers. SSB will verify that the instruction
contains the signature of an authorized person and prior to execution of
the payment order, will contact someone other than the originator at the
Client's location to authenticate the instruction.
Selection of this alternative is appropriate for Clients who do not have
the capability to use other security procedures. PLEASE COMPLETE THE
TELEPHONE CONFIRMATION INSTRUCTIONS ATTACHED AS A SCHEDULE HERETO.
[] TEST KEY
Test Key confirmation will be used to verify all non-repetitive funds
transfer instructions received via facsimile or phone. SSB will provide
test keys if this option is chosen. SSB will verify that the instruction
contains the signature of an authorized person and prior to execution of
the payment order, will authenticate the test key provided with the
corresponding test key at SSB.
Selection of this alternative is appropriate for Clients who do not have
the capability to use other security procedures.
The individual signing below must be authorized to sign contract on behalf of
the client. The execution of payment orders under the selected Security
Procedures is governed by the Funds Transfer Operating Guidelines, which are
incorporated by reference.
CLIENT
By: _______________________________
Authorized Signature
___________________________________
Type or Print Name
___________________________________
Title
___________________________________
Date
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SCHEDULE TO FUNDS TRANSFER OPERATING GUIDELINES
AND SECURITY PROCEDURES SELECTION FORM
CLIENT/INVESTMENT MANAGER: ___________________________________________________
Company Name
KEY CONTACT INFORMATION
Whom shall we contact to implement your selection(s)?
CLIENT OPERATIONS CONTACT ALTERNATE CONTACT
________________________________ __________________________________
Name Name
________________________________ __________________________________
Address Address
________________________________ __________________________________
City/State/Zip Code City/State/Zip Code
________________________________ __________________________________
Telephone Number Telephone Number
________________________________ __________________________________
Facsimile Number Facsimile Number
________________________________
SWIFT Number
TELEPHONE CONFIRMATION INSTRUCTIONS
Authorized Initiators (Please Type or Print) - Please provide a listing of your
staff members who are currently authorized to INITIATE wire transfer
instructions:
NAME TITLE SPECIMEN SIGNATURE
_______________________ ______________________ _________________________
_______________________ ______________________ _________________________
_______________________ ______________________ _________________________
_______________________ ______________________ _________________________
_______________________ ______________________ _________________________
_______________________ ______________________ _________________________
Authorized Verifiers (Please Type or Print) - Please provide a listing of your
staff members who will be CALLED BACK to verify the initiation of repetitive
wires of $10 million or more and all non-repetitive wire instructions:
NAME CALLBACK PHONE NUMBER DOLLAR LIMITATION (IF ANY)
_______________________ ______________________ _________________________
_______________________ ______________________ _________________________
_______________________ ______________________ _________________________
_______________________ ______________________ _________________________
_______________________ ______________________ _________________________
▇
[▇▇▇▇▇ ▇▇▇▇▇▇ LOGO] PRICE SOURCE AND METHODOLOGY
AUTHORIZATION MATRIX
Daily Valuation
INSTRUCTIONS: Please indicate the primary, secondary and tertiary source to be
used by State Street in calculating market value of investment for each legal
entity in the Client Relationship identified below. If the security type is not
held (or, in the case of a mutual fund, not allowed by the fund prospectus),
please indicate N/A. NOTE: If an Investment Manager is a Pricing Source, please
specify explicitly. If the Client has more than one account or portfolio, each
will be priced in accordance with the instructions given below unless otherwise
indicated. If the accounting platform used for the Client is MCHorizon, then
State Street performs a Data Quality review process as specified in the Sources
Status Pricing Matrix on the NAVigator Pricing System which specifies pricing
tolerance thresholds, index and price aging details. The Sources Status Pricing
Matrix will be provided for your information and review. In the absence of an
Instruction to the contrary, State Street shall be entitled to rely on the
Instructions contained in this Price Source and Methodology Authorization Matrix
for each additional legal entity within the client relationship to whom State
Street provides pricing services from time to time.
SECURITY TYPE PRIMARY SECONDARY TERTIARY PRICING PRICING DEFAULT VALUATION
SOURCE SOURCE SOURCE LOGIC LOGIC POINT
----------------------------------------------------------------------------------------------------------------------------------
EQUITIES
U. S. Listed Equities (NYSE,AMEX) Bridge Reuters Last Market Close
U.S. OTC Equities (Nasdaq) Bridge Reuters Market Close
Foreign Equities
Listed ADR's
FIXED INCOME
Municipal Bonds
US Bonds (Treasuries, MBS, ABS,
Corporates)
Eurobonds/Foreign Bonds
OTHER ASSETS
Options
Futures
Non - Listed ADR's
EXCHANGE RATES
FORWARD POINTS
CLIENT RELATIONSHIP: STATE STREET BANK AND TRUST COMPANY
Legal Entity (if more than one, please list on page 2) ACCEPTED: ________________________________ Vice President
AUTHORIZED BY: _________________________________ Authorized Officer EFFECTIVE DATE: __/___/___ (supersedes prior matrices)
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[STATE STREET LOGO] PRICE SOURCE AND METHODOLOGY
AUTHORIZATION MATRIX
Daily Valuation
LIST OF LEGAL ENTITIES IN THE CLIENT RELATIONSHIP
LEGAL ENTITY NAME OF AUTHORIZED SIGNER SIGNATURE OF AUTHORIZED SIGNER
IF DIFFERENT THAN PAGE 1 IF DIFFERENT THAN PAGE 1
__________________________________ _____________________________________ _________________________________________
__________________________________ _____________________________________ _________________________________________
__________________________________ _____________________________________ _________________________________________
__________________________________ _____________________________________ _________________________________________
__________________________________ _____________________________________ _________________________________________
__________________________________ _____________________________________ _________________________________________
__________________________________ _____________________________________ _________________________________________
EXPLANATION OF FIELDS
Client: Indicate the legal entity name of the Client. If
there are multiple legal entities for one client
relationship, please list each Legal Entity on p. 2.
If a single legal entity encompasses multiple
portfolios/accounts/series, any of which are to be
priced differently, please so indicate.
Primary Source: Indicate the primary source for prices for the
security type. If an Investment Manager is a pricing
source, please specify explicitly.
Secondary Source: Indicate the secondary source for prices for the
security type. If an Investment Manager is a pricing
source, please specify explicitly.
Tertiary Source: Indicate the tertiary (3rd level) source for prices
for the security type. If an Investment Manager is a
pricing source, please specify explicitly.
Pricing Logic: Indicate the price type to be referenced for the
security type: Ask, Bid, Close, Evaluated Mean, Last
Sale, amortized cost, etc.
Pricing Default Indicate the price type to be referenced for the
Logic: security type: Ask, Bid, Close, Evaluated Mean, Last
Sale, amortized cost, etc. in the instance where the
preferred price type is not available
Valuation Point: Indicate time of day: Market Close, End of Day,
specific time and time zone.
Authorized By: Provide the signature of the person authorizing the
completion of the Price Source Authorization. If
multiple legal entities are listed on p. 2, please
provide the signature of an authorized person in each
case, if necessary.
Date: Indicate the date the Price Source Authorization was
completed
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REMOTE ACCESS SERVICES ADDENDUM
To Custody [and Investment Accounting] Agreement dated ________
State Street has developed proprietary accounting and other systems,
and has acquired licenses for other such systems, which it utilizes in
conjunction with the services we provide to you (the "Systems"). In this regard,
we maintain certain information in databases under our control and ownership
that we make available on a remote basis to our customers (the "Remote Access
Services").
The Services. This agreement shall govern use of all Systems that State
Street may from time to time agree to provide you, the Customer, and your
designated investment advisors, consultants or other third parties authorized by
State Street who agree to abide by the terms of this Agreement ("Authorized
Designees") in order to provide Remote Access Services for the purpose of
obtaining and analyzing reports and information.
Security Procedures. You agree to comply, and to cause your Authorized
Designees to comply, with remote access operating standards and procedures and
with user identification or other password control requirements and other
security procedures as may be issued from time to time by State Street for use
of the Systems and access to the Remote Access Services. You agree to advise
State Street immediately in the event that you learn or have reason to believe
that any person to whom you have given access to the Systems or the Remote
Access Services has violated or intends to violate the terms of this Agreement
and you will cooperate with State Street in seeking injunctive or other
equitable relief. You agree to discontinue use of the Systems and Remote Access
Services, if requested, for any security reasons cited by State Street.
Fees. Fees and charges (if any) for the use of the Systems and the
Remote Access Services and related payment terms shall be as set forth in the
fee schedule in effect from time to time between the parties (the "Fee
Schedule"). You shall be responsible for any tariffs, duties or taxes imposed or
levied by any government or governmental agency by reason of the transactions
contemplated by this Agreement, including, without limitation, federal, state
and local taxes, use, value added and personal property taxes (other than
income, franchise or similar taxes which may be imposed or assessed against
State Street). Any claimed exemption from such tariffs, duties or taxes shall be
supported by proper documentary evidence delivered to State Street.
Proprietary Information/Injunctive Relief. The Systems and Remote
Access Services and the databases, computer programs, screen formats, report
formats, interactive design techniques, formulae, processes, systems, software,
know-how, algorithms, programs, training aids, printed materials, methods,
books, records, files, documentation and other information made available to you
by State Street as part of the Remote Access Services and through the use of the
Systems and all copyrights, patents, trade secrets and other proprietary rights
of State Street and its relevant licensors related thereto are the exclusive,
valuable and confidential property of State Street and its relevant licensors,
as applicable (the "Proprietary Information"). You agree on behalf of yourself
and your Authorized Designees to keep the Proprietary Information confidential
and to limit access to your employees and Authorized Designees (under a similar
duty of confidentiality) who require access to the Systems for the purposes
intended. The foregoing shall not apply to Proprietary Information in the public
domain or required by law to be made public.
You agree to use the Remote Access Services only in connection with the
proper purposes
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of this Agreement. You will not, and will cause your employees and Authorized
Designees not to, (i) permit any third party to use the Systems or the Remote
Access Services, (ii) sell, rent, license or otherwise use the Systems or the
Remote Access Services in the operation of a service bureau or for any purpose
other than as expressly authorized under this Agreement, (iii) use the Systems
or the Remote Access Services for any fund, trust or other investment vehicle
without the prior written consent of State Street, or (iv) allow or cause any
information transmitted from State Street's databases, including data from third
party sources, available through use of the Systems or the Remote Access
Services, to be redistributed or retransmitted for other than use for or on
behalf of yourself, as our Customer.
You agree that neither you nor your Authorized Designees will modify
the Systems in any way, enhance or otherwise create derivative works based upon
the Systems, nor will you or your Authorized Designees reverse engineer,
decompile or otherwise attempt to secure the source code for all or any part of
the Systems.
You acknowledge that the disclosure of any Proprietary Information, or
of any information which at law or equity ought to remain confidential, will
immediately give rise to continuing irreparable injury inadequately compensable
in damages at law, and that State Street and its licensor, if applicable, shall
be entitled to obtain immediate injunctive relief against the breach or
threatened breach of any of the foregoing undertakings, in addition to any other
legal remedies which may be available.
Limited Warranties. State Street represents and warrants that it has
the right to grant access to the Systems and to provide the Remote Access
Services contemplated herein. Because of the nature of computer information
technology, including but not limited to the use of the Internet, and the
necessity of relying upon third-party sources, and data and pricing information
obtained from third parties, the Systems and Remote Access Services are provided
"AS IS", and you and your Authorized Designees shall be solely responsible for
the investment decisions, results obtained, regulatory reports and statements
produced using the Remote Access Services. State Street and its relevant
licensors will not be liable to you or your Authorized Designees for any direct
or indirect, special, incidental, punitive or consequential damages arising out
of or in any way connected with the Systems or the Remote Access Services, nor
shall either party be responsible for delays or nonperformance under this
Agreement arising out of any cause or event beyond such party's control.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, STATE STREET FOR ITSELF AND ITS
RELEVANT LICENSORS EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES CONCERNING THE
SYSTEM AND THE SERVICES TO BE RENDERED HEREUNDER, WHETHER EXPRESS OR IMPLIED,
INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTIBILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
Infringement. State Street will defend or, at our option, settle any
claim or action brought against you to the extent that it is based upon an
assertion that access to any proprietary System developed and owned by State
Street or use of the Remote Access Services through any such proprietary System
by you under this Agreement constitutes direct infringement of any United States
patent or copyright or misappropriation of a trade secret, provided that you
notify State Street promptly in writing of any such claim or proceeding and
cooperate with State Street in the defense
2
of such claim or proceeding. Should any such proprietary System or the Remote
Access Services accessed thereby or any part thereof become, or in State
Street's opinion be likely to become, the subject of a claim of infringement or
the like under the patent or copyright or trade secret laws of the United
States, State Street shall have the right, at State Street's sole option, to (i)
procure for you the right to continue using such System or Remote Access
Services, (ii) replace or modify such System or Remote Access Services so that
the System or the Remote Access Services becomes noninfringing, or (iii)
terminate this Agreement without further obligation.
Termination. Either party may terminate this Agreement (i) for any
reason by giving the other party at least one-hundred and eighty (180) days'
prior written notice in the case of notice of termination by State Street to you
or thirty (30) days' notice in the case of notice from you to State Street of
termination, or (ii) immediately for failure of the other party to comply with
any material term and condition of the Agreement by giving the other party
written notice of termination. This Agreement shall in any event terminate
within ninety (90) days after the termination of any State Street custodian,
accounting or other services agreement applicable to you. In the event of
termination, you will return to State Street all copies of documentation and
other confidential information in your possession or in the possession of your
Authorized Designees. The foregoing provisions with respect to confidentiality
and infringement will survive termination for a period of three (3) years.
Miscellaneous. Except as provided in the next sentence, this Agreement
constitutes our entire understanding with respect to access to the Systems and
the Remote Access Services. If any State Street custody, accounting or other
services agreement with you contains terms and conditions relating to computer
systems or data access, this Agreement shall constitute an amendment and
supplement to them, and in the event of any inconsistency the provisions
providing the greatest benefit to State Street shall control. This Agreement
cannot be modified or altered except in a writing duly executed by both of us
and shall be governed by and construed in accordance with the laws of the
Commonwealth of Massachusetts.
CONFIRMED AND AGREED:
_______________________________________
(Name of Customer)
By: ______________________________
Name: ______________________________
Title: ______________________________
Date: ______________________________
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