CUSTODY AGREEMENT
THIS AGREEMENT is made effective the 1st day of May, 2000, by and between STATE
STREET BANK AND TRUST COMPANY, a trust company chartered under the laws of the
Commonwealth of Massachusetts, having its principal office and place of business
at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("State Street"), and
Firsthand Funds, a Delaware business trust having its principal office and place
of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
("Fund").
WHEREAS, Fund desires to appoint State Street as custodian of the assets of the
Fund's investment portfolio or portfolios listed on Schedule A (each a
"Portfolio", and collectively the "Portfolios"); and
WHEREAS, State Street is willing to accept such appointment for the compensation
and on the terms and conditions hereinafter set forth;
NOW THEREFORE, for and in consideration of the mutual promises contained herein,
the parties hereto, intending to be legally bound, mutually covenant and agree
as follows:
1. APPOINTMENT OF CUSTODIAN. Fund hereby constitutes and appoints State Street
as Custodian of the investment securities, interests in loans and other non-cash
investment property, and monies at any time owned by each of the Portfolios and
delivered to State Street as custodian hereunder ("Assets").
2. REPRESENTATIONS AND WARRANTIES.
A. Fund hereby represents, warrants and acknowledges to State Street:
1. That it is a trust duly organized and existing and in good standing under
the laws of its state of organization, and that it is registered under the
Investment Company Act of 1940 (the "1940 Act") ; and
2. That it has the requisite power and authority under applicable law, its
bylaws and its declaration of trust to enter into this Agreement; it has taken
all requisite action necessary to appoint State Street as custodian; this
Agreement has been duly executed and delivered by Fund; and this Agreement
constitutes a legal, valid and binding obligation of Fund, enforceable in
accordance with its terms.
B. State Street hereby represents, warrants and acknowledges to Fund:
1. That it is a trust company duly organized and existing and in good standing
under the laws of the Commonwealth of Massachusetts; and
2. That it has the requisite power and authority under applicable law, its
charter and its bylaws to enter into and perform this Agreement; this Agreement
has been duly executed and delivered by State Street; and this Agreement
constitutes a legal, valid and binding obligation of State Street, enforceable
in accordance with its terms.
3. That all books, records, information and data pertaining to the business of
the Fund and its prior, present or potential shareholders that are received by
State Street pursuant to the performance of State Street's duties under this
Agreement shall remain confidential and shall not be disclosed to any other
person, except as specifically authorized by the Fund or as may be required by
law, and shall not be used for any purpose other than the performance of State
Street's responsibilities and duties hereunder.
3. DUTIES AND RESPONSIBILITIES OF THE PARTIES.
A. Delivery of Assets. Except as permitted by the 1940 Act, Fund will deliver
or cause to be delivered to State Street on the effective date hereof, or as
soon thereafter as practicable, and from time to time thereafter, all Assets
acquired by, owned by or from time to time coming into the possession of each of
the Portfolios during the term hereof. State Street has no responsibility or
liability whatsoever for or on account of assets not so delivered.
B. Delivery of Accounts and Records. Fund will turn over or cause to be turned
over to State Street all of each Portfolio's relevant 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.
C. Delivery of Assets to Third Parties. State Street will receive delivery of
and keep safely the Assets of each Portfolio segregated in a separate account.
Upon delivery of any such Assets to a subcustodian appointed pursuant hereto
(hereinafter referred to as "Subcustodian"), State Street will create and
maintain records identifying such Assets as belonging to the applicable
Portfolio. State Street is responsible for the safekeeping of the Assets only
until they have been transmitted to and received by other persons as permitted
under the terms hereof, except for Assets transmitted to Subcustodians, for
which State Street remains responsible to the extent provided herein. State
Street may participate directly or indirectly through a subcustodian in the
Depository Trust Company (DTC), Treasury/Federal Reserve Book Entry System (Fed
System), Participant Trust Company (PTC) or other depository approved by Fund
(as such entities are defined at 17 CFR Section 270.17f-4(b)) (each a
"Depository" and collectively the "Depositories"). State Street will be
responsible to Fund for any loss, damage or expense suffered or incurred by Fund
resulting from the actions or omissions of any Depository only to the same
extent such Depository is responsible to State Street.
D. Registration. State Street will at all times hold registered Assets in the
name of State Street as custodian, the applicable Portfolio, or a nominee of
either of them, unless specifically directed by Instructions, as hereinafter
defined, to hold such registered Assets in so-called "street name," provided
that, in any event, State Street will hold all such Assets in an account of
State Street as custodian containing only Assets of the applicable Portfolio, or
only assets held by State Street as a fiduciary or custodian for customers; and
provided further, State Street's records will at all times indicate the
Portfolio or other customer for which such Assets are held and the respective
interests therein. If, however, Fund directs State Street to maintain Assets in
"street name", notwithstanding anything contained herein to the contrary, State
Street will be obligated only to utilize its best efforts to timely collect
income due the Portfolio on such Assets and to notify the Portfolio of relevant
information, such as maturities and pendency of calls, and corporate actions
including, without limitation, calls for redemption, tender or exchange offers,
declaration, record and payment dates and amounts of any dividends or income,
reorganization, recapitalization, merger, consolidation, split-up of shares,
change of par value, or conversion ("Corporate Actions"). All Assets
and the ownership thereof by each Portfolio will at all times be identifiable on
the records of State Street. Fund agrees to hold State Street and its nominee
harmless for any liability as a shareholder of record of securities held in
custody.
E. Exchange. Upon receipt of Instructions, State Street will exchange, or
cause to be exchanged, Assets held for the account of a Portfolio for other
Assets issued or paid in connection with any Corporate Action or otherwise, and
will deposit any such Assets in accordance with the terms of any such Corporate
Action. Without Instructions, State Street is authorized to exchange Assets in
temporary form for Assets in definitive form, to effect an exchange of shares
when the par value of stock is changed, and, upon receiving payment therefore,
to surrender bonds or other Assets at maturity or when advised of earlier call
for redemption, except that State Street will receive Instruction prior to
surrendering any convertible security.
F. Purchases of Investments -- Other Than Options and Futures. On each
business day on which a Portfolio makes a purchase of Assets other than options
and futures, Fund will deliver to State Street Instructions specifying with
respect to each such purchase:
1. If applicable, the name of the Portfolio making such purchase;
2. The name of the issuer and description of the Asset;
3. The number of shares and the principal amount purchased, and accrued
interest, if any;
4. The trade date;
5. The settlement date;
6. The purchase price per unit and the brokerage commission, taxes and other
expenses payable in connection with the purchase;
7. The total amount payable upon such purchase;
8. The name of the person from whom or the broker or dealer through whom the
purchase was made; and
9. Whether the Asset is to be received in certificated form or via a specified
Depository.
In accordance with such Instructions, State Street will pay for out of monies
held for the purchasing Portfolio, but only insofar as such monies are available
for such purpose, and receive the Assets so purchased by or for the account of
such Portfolio, except that State Street, or a Subcustodian, may in its sole
discretion advance funds to such Portfolio, which may result in an overdraft
because the monies held on behalf of such Portfolio are insufficient to pay the
total amount payable upon such purchase. Except as otherwise instructed by Fund,
State Street will make such payment only upon receipt of Assets: (a) by State
Street; (b) by a clearing corporation of a national exchange of which State
Street is a member; or (c) by a Depository. Notwithstanding the foregoing, (i)
State Street may release funds to a Depository prior to the receipt of advice
from the Depository that the Assets underlying a repurchase agreement have been
transferred by book-entry into the account maintained with such Depository by
State Street on behalf of its customers; provided that State Street's
instructions to the Depository require that the Depository make payment of such
funds only upon transfer by book-entry of the Assets underlying the repurchase
agreement in such account; (ii) State Street may make payment for time deposits,
call account deposits, currency deposits and other deposits, foreign exchange
transactions, futures contracts or options, before receipt of an advice or
confirmation evidencing said deposit or entry into such transaction; and (iii)
State Street may make, or cause a Subcustodian to make, payment for the purchase
of Assets the settlement of
which occurs outside of the United States of America in accordance with
generally accepted local custom and market practice.
G. Sales and Deliveries of Investments -- Other Than Options and Futures. On
each business day on which a Portfolio makes a sale of Assets other than options
and futures, Fund will deliver to State Street Instructions specifying with
respect to each such sale:
1. If applicable, the name of the Portfolio making such sale;
2. The name of the issuer and description of the Asset;
3. The number of shares and principal amount sold, and accrued interest, if
any;
4. The date on which the Assets sold were purchased or other information
identifying the Assets sold and to be delivered;
5. The trade date;
6. The settlement date;
7. The sale price per unit and the brokerage commission, taxes or other
expenses payable in connection with such sale;
8. The total amount to be received by the Portfolio upon such sale; and
9. The name and address of the broker or dealer through whom or person to whom
the sale was made.
State Street will deliver or cause to be delivered the Assets thus designated as
sold for the account of the selling Portfolio as specified in the Instructions.
Except as otherwise instructed by Fund, State Street will make such delivery
upon receipt of: (a) payment therefore in such form as is satisfactory to State
Street; (b) credit to the account of State Street with a clearing corporation of
a national securities exchange of which State Street is a member; or (c) credit
to the account maintained by State Street on behalf of its customers with a
Depository. Notwithstanding the foregoing: (i) State Street will deliver Assets
held in physical form in accordance with "street delivery custom" to a broker or
its clearing agent; or (ii) State Street may make, or cause a Subcustodian to
make, delivery of Assets the settlement of which occurs outside of the United
States of America upon payment therefore in accordance with generally accepted
local custom and market practice.
H. Purchases or Sales of Options and Futures. On each business day on which a
Portfolio makes a purchase or sale of the options and/or futures listed below,
Fund will deliver to State Street Instructions specifying with respect to each
such purchase or sale:
1. If applicable, the name of the Portfolio making such purchase or sale;
2. In the case of security options:
a. The underlying security;
b. The price at which purchased or sold;
c. The expiration date;
d. The number of contracts;
e. The exercise price;
f. Whether the transaction is an opening, exercising, expiring or closing
transaction;
g. Whether the transaction involves a put or call;
h. Whether the option is written or purchased;
i. Market on which option traded; and
j. Name and address of the broker or dealer through whom the sale or purchase
was made.
3. In the case of options on indices:
a. The index;
b. The price at which purchased or sold;
c. The exercise price;
d. The premium;
e. The multiple;
f. The expiration date;
g. Whether the transaction is an opening, exercising, expiring or closing
transaction;
h. Whether the transaction involves a put or call;
i. Whether the option is written or purchased; and
j. The name and address of the broker or dealer through whom the sale or
purchase was made, or other applicable settlement instructions.
4. In the case of security index futures contracts:
a. The last trading date specified in the contract and, when available,
the closing level, thereof;
b. The index level on the date the contract is entered into;
c. The multiple;
d. Any margin requirements;
e. The need for a segregated margin account (in addition to Instructions, and
if not already in the possession of State Street, Fund will deliver a
substantially complete and executed custodial safekeeping account and procedural
agreement, incorporated herein by reference); and
f. The name and address of the futures commission merchant through whom the
sale or purchase was made, or other applicable settlement instructions.
5. In the case of options on index future contracts:
a. The underlying index future contract;
b. The premium;
c. The expiration date;
d. The number of options;
e. The exercise price;
f. Whether the transaction involves an opening, exercising, expiring or
closing transaction;
g. Whether the transaction involves a put or call;
h. Whether the option is written or purchased; and
i. The market on which the option is traded.
I. Assets Pledged or Loaned. If specifically allowed for in the prospectus of
a Portfolio, and subject to such additional terms and conditions as State Street
may require:
1. Upon receipt of Instructions, State Street will release or cause to be
released Assets to the designated pledgee by way of pledge or hypothecation to
secure any loan incurred by a Portfolio; provided, however, that State Street
will release Assets only upon payment to State Street of the monies borrowed,
except that in cases where additional collateral is required to secure a
borrowing already made, further Assets may be released or caused to be released
for that purpose. Upon receipt of Instructions, State Street will pay, but only
from funds available for such purpose, any such loan upon redelivery to it of
the Assets pledged or hypothecated therefore and upon surrender of the note or
notes evidencing such loan.
2. Upon receipt of Instructions, State Street will release Assets to the
designated borrower; provided, however, that the Assets will be released only
upon deposit with State Street of full cash collateral as specified in such
Instructions, and that the lending Portfolio will retain the right to any
dividends, interest or distribution on such loaned Assets. Upon receipt of
Instructions and the loaned Assets, State Street will release the cash
collateral to the borrower.
J. Routine Matters. State Street will, in general, attend to all routine and
mechanical matters in connection with the sale, exchange, substitution,
purchase, transfer, or other dealings with the Assets except as may be otherwise
provided herein or upon Instruction from Fund.
K. Deposit Accounts. State Street will open and maintain one or more special
purpose deposit accounts for each Portfolio in the name of State Street in such
banks or trust companies (including, without limitation, affiliates of State
Street) as may be designated by it or Fund in writing ("Accounts"), subject only
to draft or order by State Street upon receipt of Instructions. State Street
will deposit all monies received by State Street from or for the account of a
Portfolio in an Account maintained for such Portfolio. Subject to Section 5
hereof, State Street agrees:
1. To make Fed Funds available to the applicable Portfolio at 9:00 a.m.,
Kansas City time, on the second business day after deposit of any check into an
Account, in the amount of the check;
2. To make funds available immediately upon a deposit made by Federal Reserve
wire; and
3. To make funds available on the next business day after deposit of ACH
wires.
L. Income and Other Payments. State Street will:
1. Collect, claim and receive and deposit for the account of the applicable
Portfolio all income (including income from the Accounts) and other payments
which become due and payable on or after the effective date hereof with respect
to the Assets, and credit the account of such Portfolio in accordance with the
schedule attached hereto as Exhibit A. If, for any reason, a Portfolio is
credited with income that is not subsequently collected, State Street may
reverse that credited amount. If monies are collected after such reversal, State
Street will credit the Portfolio in that amount;
2. Execute ownership and other certificates and affidavits for all federal,
state and local tax purposes in connection with the collection of bond and note
coupons; and
3. Take such other action as may be necessary or proper in connection with (a)
the collection, receipt and deposit of such income and other payments, including
but not limited to the presentation for payment of all coupons and other income
items requiring presentation; and all other Assets which may mature or be
called, redeemed, retired or otherwise become payable and regarding which State
Street has actual knowledge, or should reasonably be expected to have knowledge;
and (b) the endorsement for collection, in the name of Fund or a Portfolio, of
all checks, drafts or other negotiable instruments.
State Street, however, will not be required to institute suit or take other
extraordinary action to enforce collection except upon receipt of Instructions
and upon being indemnified to its satisfaction against the costs and expenses of
such suit or other actions. State Street will receive, claim and collect
all stock dividends, rights and other similar items and will deal with the same
pursuant to Instructions.
M. Proxies and Notices. State Street will promptly deliver or mail or have
delivered or mailed to Fund all proxies properly signed, all notices of
meetings, all proxy statements and other notices, requests or announcements
affecting or relating to Assets and will, upon receipt of Instructions, execute
and deliver or mail (or cause its nominee to execute and deliver or mail) such
proxies or other authorizations as may be required. Except as provided herein or
pursuant to Instructions hereafter received by State Street, neither it nor its
nominee will exercise any power inherent in any such Assets, including any power
to vote the same, or execute any proxy, power of attorney, or other similar
instrument voting any of such Assets, or give any consent, approval or waiver
with respect thereto, or take any other similar action.
N. Disbursements. State Street will pay or cause to be paid, insofar as funds
are available for the purpose, bills, statements and other obligations of each
Portfolio (including but not limited to obligations in connection with the
conversion, exchange or surrender of Assets, interest charges, dividend
disbursements, taxes, management fees, custodian fees, legal fees, auditors'
fees, transfer agents' fees, brokerage commissions, compensation to personnel,
and other operating expenses of such Portfolio) pursuant to Instructions setting
forth the name of the person to whom payment is to be made, and the amount and
purpose of the payment.
O. Daily Statement of Accounts. State Street will, within a reasonable time,
render to Fund a detailed statement of the amounts received or paid and of
Assets received or delivered for the account of each Portfolio during each
business day. State Street will maintain such books and records as are necessary
to enable it to render, from time to time upon request by Fund, a detailed
statement of the Assets. State Street will permit, and upon Instruction will
cause any Subcustodian to permit, such persons as are authorized by Fund,
including Fund's independent public accountants, reasonable access to such
records or will provide reasonable confirmation of the contents of such records,
and if demanded, State Street will permit, and will cause any Subcustodian to
permit, federal and state regulatory agencies to examine the Assets, books and
records of the Portfolio.
P. Appointment of Subcustodians. Notwithstanding any other provisions hereof:
1. All or any of the Assets may be held in State Street's own custody or in
the custody of one or more other banks or trust companies (including, without
limitation, affiliates of State Street) acting as Subcustodians as may be
selected by State Street. Any such Subcustodian selected by State Street must
have the qualifications required for a custodian under the ▇▇▇▇ ▇▇▇. ▇▇▇▇▇
▇▇▇▇▇▇ will be responsible to the applicable Portfolio for any loss, damage or
expense suffered or incurred by such Portfolio resulting from the actions or
omissions of any Subcustodians selected and appointed by State Street (except
Subcustodians appointed at the request of Fund and as provided in Subsection 2
below) to the same extent State Street would be responsible to Fund hereunder if
it committed the act or omission itself.
2. Upon request of Fund, State Street will contract with other Subcustodians
reasonably acceptable to State Street for purposes of (a) effecting third-party
repurchase transactions with banks, brokers, dealers, or other entities through
the use of a common custodian or subcustodian, or (b) providing depository and
clearing agency services with respect to certain variable rate demand note
securities, or (c) for other reasonable purposes specified by Fund; provided,
however, that State Street will be responsible to Fund for any loss, damage or
expense suffered or incurred by Fund resulting from the actions or omissions of
any such Subcustodian only to the same extent such Subcustodian is responsible
to State Street. Fund may review State Street's contracts with such
Subcustodians.
Q. Foreign Custody Manager ("FCM").
1. Delegation to State Street as FCM. The Fund hereby delegates to State
Street, subject to Section (b) of Rule 17f-5 of the 1940 Act, the
responsibilities set forth in this Section Q with respect to Foreign Assets held
outside the United States, and State Street hereby accepts such delegation, as
FCM of each Portfolio.
2. Definitions. Capitalized terms in this Section Q have the following
meanings:
"Country Risk" means all factors reasonably related to the systemic risk of
holding Foreign Assets in a particular country including, but not limited to,
such country's political environment; economic and financial infrastructure
(including financial institutions such as any Mandatory Securities Depositories
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, except that the term does not include Mandatory Securities
Depositories.
"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 in amounts deemed by Fund to be reasonably necessary
to effect the Portfolios' transactions in such investments.
"Foreign Custody Manager" or "FCM" has the meaning set forth in section (a)(2)
of Rule 17f-5.
"Mandatory Securities Depository" means a foreign securities depository or
clearing agency that, either as a legal or practical matter, must be used if the
Fund determines to place Foreign Assets in a country outside the United States
(i) because required by law or regulation; (ii) because securities cannot be
withdrawn from such foreign securities depository or clearing agency; or (iii)
because maintaining or effecting trades in securities outside the foreign
securities depository or clearing agency is not consistent with prevailing or
developing custodial or market practices.
3. Countries Covered. The FCM is responsible for performing the delegated
responsibilities defined below only with respect to the countries and custody
arrangements for each such country listed on Exhibit B hereto, which may be
amended from time to time by the FCM. The FCM will list on Exhibit B the
Eligible Foreign Custodians selected by the FCM to maintain the assets of each
Portfolio. Mandatory Securities Depositories are listed on Exhibit C hereto,
which Exhibit C may be amended from time to time by the FCM. The FCM will
provide amended versions of Exhibits B and C in accordance with subsection 7 of
this Section Q.
Upon the receipt by the FCM of Instructions to open an account, or to place or
maintain Foreign Assets, in a country listed on Exhibit B, and the fulfillment
by the Fund of the applicable account opening requirements for such country, the
FCM is deemed to have been delegated by the Board responsibility as FCM with
respect to that country and to have accepted such delegation. Following the
receipt of Instructions directing the FCM to close the account of a Portfolio
with the Eligible Foreign Custodian selected by the FCM in a designated country,
the delegation by the Board to State Street as FCM for that country is deemed to
have been withdrawn and State Street will immediately cease to be the FCM of the
Portfolio with respect to that country.
The FCM may withdraw its acceptance of delegated responsibilities with respect
to a designated country upon written notice to the Fund. Thirty days (or such
longer period as to which the parties agree in writing) after receipt of any
such notice by the Fund, State Street will have no further responsibility as FCM
to a Portfolio with respect to the country as to which State Street's acceptance
of delegation is withdrawn.
4. Scope of Delegated Responsibilities.
a. Selection of Eligible Foreign Custodians. Subject to the provisions of this
Section Q, the FCM may place and maintain the Foreign Assets in the care of the
Eligible Foreign Custodian selected by the FCM in each country listed on Exhibit
B, as amended from time to time.
In performing its delegated responsibilities as FCM to place or maintain Foreign
Assets with an Eligible Foreign Custodian, the FCM will 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, those set forth
in Rule 17f-5(c)(1)(i) through (iv).
b. Contracts With Eligible Foreign Custodians. The FCM will determine that the
contract (or the rules or established practices or procedures in the case of an
Eligible Foreign Custodian that is a foreign securities depository or clearing
agency) governing the foreign custody arrangements with each Eligible Foreign
Custodian selected by the FCM will provide reasonable care for the Foreign
Assets held by that Eligible Foreign Custodian based on the standards applicable
to custodians in the particular country. Each such contract will include the
provisions set forth in Rule 17f-5(c)(2)(I)(A) through (F), or, in lieu of any
or all of the provisions set forth in said (A) through (F), such other
provisions that the FCM determines will provide, in their entirety, the same or
greater level of care and protection for the Foreign Assets as the provisions
set forth in said (A) through (F) in their entirety.
c. Monitoring. In each case in which the FCM maintains Foreign Assets with an
Eligible Foreign Custodian selected by the FCM, the FCM will establish a system
to monitor (a) the appropriateness of maintaining the Foreign Assets with such
Eligible Foreign Custodian and (b) the contract governing the custody
arrangements established by the FCM with the Eligible Foreign Custodian. In the
event the FCM determines that the custody arrangements with an Eligible Foreign
Custodian it has selected are no longer appropriate, the FCM will notify the
Board in accordance with subsection 7 of this Section Q.
5. Guidelines for the Exercise of Delegated Authority. For purposes of this
Section Q, the Board will be solely responsible for considering and determining
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 FCM of a
Portfolio, and the Board will be solely responsible for monitoring on a
continuing basis such Country Risk to the extent that the Board considers
necessary or appropriate. The Fund, on behalf of the Portfolios, and State
Street each expressly acknowledge that the FCM will not be delegated any
responsibilities under this Section Q with respect to Mandatory Securities
Depositories.
6. Standard of Care as FCM of a Portfolio. In performing the responsibilities
delegated to it, the FCM 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.
7. Reporting Requirements. The FCM will 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 amended
Exhibits B and C at the end of the calendar quarter in which an amendment to
either Schedule has occurred. The FCM will make written reports notifying the
Board of any other material change in the foreign custody arrangements of a
Portfolio described in this Section Q after the occurrence of the material
change.
8. Representations with Respect to Rule 17f-5. The FCM represents to the Fund
that it is a U.S. Bank as defined in section (a)(7) of Rule 17f-5.
The Fund represents to 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 to this Agreement to State Street and as the FCM of each
Portfolio.
9. Effective Date and Termination of State Street as FCM. The Board's
delegation to State Street as FCM of a Portfolio will be effective as of the
date hereof and will 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 days after receipt by the
non-terminating party of such notice. The provisions of subsection 3 of this
Section Q govern the delegation to and termination of State Street as FCM of the
Fund with respect to designated countries.
R. Accounts and Records are 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, provided that 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.
S. Adoption of Procedures. State Street and Fund hereby adopt the Funds
Transfer Operating Guidelines attached hereto as Exhibit D. State Street and
Fund may from time to time adopt such additional 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 the prospectus, bylaws and declaration of trust,
any applicable law, rule or regulation, or any order, decree or agreement by
which Fund may be bound.
T. Advances. Fund will pay on demand any advance of cash or securities made by
State Street or any Subcustodian, in its sole discretion and in the proper
performance of its duties under this Agreement, for any purpose (including but
not limited to securities settlements, purchase or sale of foreign exchange or
foreign exchange contracts and assumed settlement) for the benefit of any
Portfolio. Any such cash advance will be subject to an overdraft charge at the
rate set forth in the then-current fee schedule from the date advanced until the
date repaid. As security for each such advance, Fund hereby grants State Street
and such Subcustodian a lien on and security interest in all Assets at any time
held for the account of the applicable Portfolio, including without limitation
all Assets acquired with the amount advanced. Should Fund fail to promptly repay
the advance, State Street and such Subcustodian may utilize available cash and
dispose of such Portfolio's Assets pursuant to applicable law to the extent
necessary to obtain reimbursement of the amount advanced and any related
overdraft charges.
U. Exercise of Rights; Tender Offers. Upon receipt of Instructions, State
Street will: (1) deliver warrants, puts, calls, rights or similar securities to
the issuer or trustee thereof, or to the agent of such issuer or trustee, for
the purpose of exercise or sale, provided that the new Assets, if any, are to be
delivered to State Street; and (2) deposit securities upon invitations for
tenders thereof, provided that the consideration for such securities is to be
paid or delivered to State Street or the tendered securities are to be returned
to State Street.
V. Fund Shares.
1. Fund will deliver to State Street Instructions with respect to the
declaration and payment of any dividend or other distribution on the shares of
capital stock of a Portfolio ("Fund Shares") by a Portfolio. On the date
specified in such Instruction, State Street will pay out of the monies held for
the account of the Portfolio, insofar as it is available for such purposes, and
credit to the account of the Dividend Disbursing Agent for the Portfolio, the
amount specified in such Instructions.
2. Whenever Fund Shares are repurchased or redeemed by a Portfolio, Portfolio
or its agent will give State Street Instructions regarding the aggregate dollar
amount to be paid for such shares. Upon receipt of such Instruction, State
Street will charge such aggregate dollar amount to the account of the Portfolio
and either deposit the same in the account maintained for the purpose of paying
for the repurchase or redemption of Fund Shares or deliver the same in
accordance with such Instruction. State Street has no duty or responsibility to
determine that Fund Shares have been removed from the proper shareholder
accounts or that the proper number of Fund Shares have been canceled and removed
from the shareholder records.
3. Whenever Fund Shares are purchased from Fund, Fund will deposit or cause to
be deposited with State Street the amount received for such shares. State
Street has no duty or responsibility to determine that Fund Shares purchased
from Fund have been added to the proper shareholder account or that the proper
number of such shares have been added to the shareholder records.
4. INSTRUCTIONS.
A. The term "Instructions", as used herein, means written (including
telecopied, telexed, or electronically transmitted) or oral instructions which
State Street reasonably believes were given by a designated representative of
Fund. Fund will deliver to State Street, prior to delivery of any Assets to
State Street and thereafter from time to time as changes therein are necessary,
written Instructions naming one or more designated representatives to give
Instructions in the name and on behalf of Fund, which Instructions may be
received and accepted by State Street as conclusive evidence of the authority of
any designated representative to act for Fund and may be considered to be in
full force and effect until receipt by State Street of notice to the contrary.
Unless such written Instructions delegating authority to any person to give
Instructions specifically limit such authority to specific matters or require
that the approval of anyone else will first have been obtained, State Street
will be under no obligation to inquire into the right of such person, acting
alone, to give any Instructions whatsoever. If Fund fails to provide State
Street any such Instructions naming designated representatives, any Instructions
received by State Street from a person reasonably believed to be an appropriate
representative of Fund will constitute valid and proper Instructions hereunder.
The term "designated representative" may include Fund's or a Portfolio's
employees and agents, including investment managers and their employees.
B. No later than the next business day immediately following each oral
Instruction, Fund will send State Street written confirmation of such oral
Instruction. At each party's sole discretion, each party may record on tape, or
otherwise, any oral Instruction whether given in person or via telephone, each
such recording identifying the date and the time of the beginning and ending of
such oral Instruction. Prior to recording such oral Instructions, the recording
party shall give the caller notice that recording is taking place.
C. Fund will provide, upon State Street's reasonable request, a certificate
signed by an officer or designated representative of Fund, as conclusive proof
of any fact or matter required to be ascertained from Fund hereunder. Fund will
also provide State Street Instructions with respect to any matter concerning
this Agreement requested by State Street. If State Street reasonably believes
that it could not prudently act according to the Instructions, or the
instruction or advice of Fund's or a Portfolio's accountants or counsel, it may
in its discretion, with written notice to Fund, not act according to such
Instructions.
5. LIMITATION OF LIABILITY OF STATE STREET. The indemnification provided for
in this section does not apply to any claim by Fund against State Street that is
upheld by a court. For other claims, Fund agrees that 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, provided that in each case, State Street has acted in good
faith and with reasonable care, arising out of or attributable to:
A. State Street's action or failure to act pursuant hereto;
B. State Street's payment of money as requested by Fund, or the taking of any
action which might make it or its nominee liable for payment of monies or in any
other way, all as requested by Fund; provided, however, that nothing herein
obligates State Street to take any such action or expend its own monies in its
sole discretion;
C. State Street's action or failure to act hereunder upon any Instructions,
advice, notice, request, consent, certificate or other instrument or paper
reasonably appearing to it to be genuine and to have been properly executed,
including any Instruction, communications, data or other information received by
State Street by means of the Systems, as hereinafter defined, or any electronic
system of communication;
D. State Street's action or failure to act in good faith reliance on the
advice or opinion of counsel for Fund with respect to questions or matters of
law, which advice or opinion may be obtained by State Street at the expense of
Fund, or on the Instruction, advice or statements of any officer or employee of
Fund, or Fund's accountants or other authorized individuals;
E. The purchase or sale of any securities or foreign currency positions.
Without limiting the generality of the foregoing, State Street is under no duty
or obligation to inquire into:
1. The validity of the issue of any securities purchased by or for any
Portfolio, or the legality of the purchase thereof or of foreign currency
positions, or evidence of ownership required by Fund to be received by State
Street, or the propriety of the decision to purchase or the amount paid
therefore;
2. The legality of the sale of any securities or foreign currency positions by
or for any Portfolio, or the propriety of the amount for which the same are
sold; or
3. The legality of the issue or sale of any Fund Shares, or the sufficiency of
the amount to be received therefore, the legality of the repurchase or
redemption of any Fund Shares, or the propriety of the amount to be paid
therefore, or the legality of the declaration of any dividend by Fund, or the
legality of the issue of any Fund Shares in payment of any stock dividend.
F. 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, 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;
G. Fund's refusal or failure to comply with the terms hereof (including
without limitation Fund's failure to pay or reimburse State Street under
Section 5 hereof), Fund's negligence or willful misconduct, or the failure of
any representation or warranty of Fund hereunder to be and remain true and
correct in all respects at all times;
H. The use or misuse, whether authorized or unauthorized, of the Systems or
any electronic system of communication used hereunder, by Fund or by any person
who acquires access to the Systems or such other systems through the terminal
device, passwords, access instructions or other means of access to such Systems
or such other system which are utilized by, assigned to or otherwise made
available to Fund, except to the extent attributable to any negligence or
willful misconduct by State Street;
I. Any money represented by any check, draft, wire transfer, clearinghouse
funds, uncollected funds, or instrument for the payment of money to be received
by State Street on behalf of a Portfolio until actually received; provided,
however, that State Street will advise Fund promptly if it fails to receive any
such money in the ordinary course of business and will cooperate with Fund
toward the end that such money is received;
J. Except as provided in Section 3.P hereof, loss occasioned by the acts,
omissions, defaults or insolvency of any broker, bank, trust company, securities
system or any other person not affiliated with State Street and with whom State
Street may deal; and
K. The failure or delay in performance of its obligations hereunder, or those
of any entity for which it is responsible hereunder, arising out of or caused,
directly or indirectly, by circumstances beyond the affected entity's reasonable
control, including, without limitation: any interruption, loss or malfunction of
any public utility, transportation, or communication service; inability to
obtain labor, material, equipment or transportation for a reasonable cost, or a
delay in mails; governmental or exchange action, statute, ordinance, rulings,
regulations or direction, war, strike, riot, emergency, civil disturbance,
terrorism, vandalism, explosions, labor disputes, freezes, floods, fires,
tornadoes, acts of God or public enemy, revolutions, or insurrection.
State Street will not confess any claim or settle or make any compromise in any
instance in which Fund will be asked to provide indemnification, except with
Fund's prior written consent. Any amounts payable by Fund under this Section 5
shall be satisfied only against the assets of the Portfolio of Fund involved in
the claim, demand, action or suit and not against the assets of any other
investment portfolio of Fund. Neither party to this agreement is liable to the
other for consequential, special or punitive damages
6. COMPENSATION. In consideration for its services hereunder, Fund will pay to
State Street the compensation set forth in a separate fee schedule, incorporated
herein by reference, to be agreed to by Fund and State Street from time to time,
and upon reasonable demand, reimbursement for State Street's cash disbursements
and reasonable out-of-pocket costs and expenses, including attorneys' fees and
disbursements, incurred by State Street in connection with the performance of
services hereunder. State Street may charge such compensation against monies
held by it for the account of the Portfolios. State Street will also be entitled
to charge against any monies held by it for the account of the Portfolios the
amount of any loss, damage, liability, advance, overdraft or expense for which
it is entitled to reimbursement from Fund, including but not limited to fees and
expenses due to State Street for other services provided to Fund by State
Street. State Street will be entitled to reimbursement by Fund for the losses,
damages, liabilities, advances, overdrafts and expenses of Subcustodians only to
the extent that (a) State Street would have been entitled to reimbursement
hereunder if it had incurred the same itself directly, and (b) State Street is
obligated to reimburse the Subcustodian therefore.
7. TERM AND TERMINATION. This Agreement shall become effective on the date of
its execution and shall remain in full force and effect indefinitely from the
effective date unless either party terminates this Agreement by written notice
to the other party, such notice to be in writing, delivered or mailed postage
prepaid, to the other party. For State Street to terminate this Agreement, State
Street shall give at least one hundred twenty (120) days' prior notice to Fund.
For Fund to terminate this agreement, Fund shall give at least ninety (90) days
prior notice to State Street. Termination of this Agreement with respect to any
given Portfolio shall in no way affect the continued validity of this Agreement
with respect to any other Portfolio. Upon termination hereof:
A. Fund will pay State Street its fees and compensation due hereunder and its
reimbursable disbursements, costs and expenses paid or incurred to such date;
B. Fund will designate a successor custodian by Instruction to State Street.
In the event no such Instruction has been delivered to State Street on or before
the date when such termination becomes effective, then State Street may, at its
option, (i) choose as successor custodian a bank or trust company meeting the
qualifications for custodian set forth in the 1940 Act and having not less than
Two Million Dollars ($2,000,000) aggregate capital, surplus and undivided
profits, as shown by its last published report, or (ii) apply to a court of
competent jurisdiction for the appointment of a successor or other proper
relief, or take any other lawful action under the circumstances; provided,
however, that Fund will reimburse State Street for its reasonable costs and
expenses, including reasonable attorney's fees, incurred in connection
therewith; and
C. State Street will, upon payment of all sums due to State Street from Fund
hereunder or otherwise, deliver at State Street's office all Assets, duly
endorsed and in form for transfer, to the successor custodian, or as specified
by the court. State Street will cooperate in effecting changes in book-entries
at all Depositories. Upon delivery to a successor or as specified by the court,
State Street will have no further obligations or liabilities hereunder.
In the event that Assets remain in the possession of State Street after the date
of termination hereof for any reason other than State Street's failure to
deliver the same, State Street is entitled to compensation as provided in the
then-current fee schedule for its services during such period, and the
provisions hereof relating to the duties and obligations of State Street will
remain in full force and effect.
8. NOTICES. Notices, requests, instructions and other writings addressed to
Fund to the attention of "Fund Accounting" at the address set forth above, or at
such other address as Fund may have designated to State Street in writing, will
be deemed to have been properly given to Fund hereunder. Notices, requests,
Instructions and other writings addressed to State Street at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Custody Department, or to such other
address as it may have designated to Fund in writing, will be deemed to have
been properly given to State Street hereunder.
9. THE SYSTEMS; CONFIDENTIALITY.
A. If State Street provides Fund direct access to the computerized custody
recordkeeping and accounting systems used by ▇▇▇▇▇ ▇▇▇▇▇▇ ("▇▇▇▇▇ ▇▇▇▇▇▇
Systems") or if State Street and Fund agree to utilize any electronic system of
communication, Fund agrees to implement and enforce appropriate security
policies and procedures to prevent unauthorized or improper access to or use of
State Street Systems or such other system.
B. Fund will preserve the confidentiality of State Street Systems and the
tapes, books, reference manuals, instructions, records, programs, documentation
and information of, and other materials relevant to, State Street Systems and
the business of State Street or its affiliates ("State Street Confidential
Information"). Fund agrees that it will not voluntarily disclose any such State
Street Confidential Information to any other person other than its own employees
who reasonably have a need to know such information pursuant hereto. Fund will
return all such Confidential Information to State Street upon termination or
expiration hereof.
C. Fund has been informed that State Street Systems are licensed for use by
State Street and its affiliates from one or more third parties ("State Street
Licensors"), and Fund acknowledges that State Street and State Street Licensors
have proprietary rights in and to State Street Systems and all other State
Street or State Street Licensor programs, code, techniques, know-how, data
bases, supporting documentation, data formats, and procedures, including without
limitation any changes or modifications made at the request or expense or both
of Fund (collectively, the "State Street Protected Information"). Fund
acknowledges that State Street Protected Information constitutes confidential
material and trade secrets of State Street and State Street Licensors. Fund will
preserve the confidentiality of State Street Protected Information, and Fund
hereby acknowledges that any unauthorized use, misuse, disclosure or taking of
State Street Protected Information, residing or existing internal or external to
a computer, computer system, or computer network, or the knowing and
unauthorized accessing or causing to be accessed of any computer, computer
system, or computer network, may be subject to civil liabilities and criminal
penalties under applicable law. Fund will so inform employees and agents who
have access to State Street Protected Information or to any computer equipment
capable of accessing the same. State Street Licensors are intended to be and are
third party beneficiaries of Fund's obligations and undertakings contained in
this Section.
D. Fund hereby represents and warrants to State Street that it has determined
to its satisfaction that State Street Systems are appropriate and suitable for
its use. THE STATE STREET SYSTEMS ARE PROVIDED ON AN AS IS, AS AVAILABLE BASIS.
STATE STREET EXPRESSLY DISCLAIMS ALL WARRANTIES INCLUDING, BUT NOT LIMITED TO,
THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE,
EXCEPT THOSE WARRANTIES EXPRESSLY STATED HEREIN.
E. State Street will take reasonable steps to ensure that its products (and
those of its third-party suppliers) reflect the available state of the art
technology to offer products that are reasonably free from material and serious
defects. State Street will make the changes to its products at no cost to the
Fund and in a commercially reasonable time frame and will require third-party
suppliers to do likewise.
Similarly, Fund will take reasonable steps to ensure that its electronic systems
reflect the available state of the art technology and are reasonably free from
material and serious defects, and if any changes are required, Fund will make
the changes to its systems at no cost to State Street and in a commercially
reasonable time frame.
F State Street hereby represents and warrants to Fund that all books,
records, information and data pertaining to the business of the Fund and its
prior, present or potential shareholders that are received by State Street
pursuant to the performance of State Street's duties under this Agreement shall
remain confidential and shall not be disclosed to any other person, except as
specifically authorized by the Fund or as may be required by law, and shall not
be used for any purpose other than the performance of State Street's
responsibilities and duties hereunder.
G If Fund provides State Street direct access to its computerized
recordkeeping, accounting or other systems used by Fund ("Fund Systems") or if
Fund and State Street agree to utilize any electronic system of communication,
State Street agrees to implement and enforce appropriate security policies and
procedures to prevent unauthorized or improper access to or use of Fund Systems
or such other system.
H. State Street will preserve the confidentiality of Fund Systems and the
tapes, books, reference manuals, instructions, records, programs, documentation
and information of, and other materials relevant to, Fund Systems and the
business of Fund or its affiliates ("Fund Confidential Information"). State
Street agrees that it will not voluntarily disclose any such Fund Confidential
Information to any other person other than its own employees who reasonably have
a need to know such information pursuant hereto. State Street will return all
such Fund Confidential Information to Fund upon termination or expiration
hereof.
I. State has been informed that Fund Systems are licensed for use by Fund and
its affiliates from one or more third parties ("Licensors"), and State Street
acknowledges that Fund and Licensors have proprietary rights in and to Fund
Systems and all other Fund or Licensor programs, code, techniques, know-how,
data bases, supporting documentation, data formats, and procedures, including
without limitation any changes or modifications made at the request or expense
or both of State Street (collectively, the "Fund Protected Information"). State
Street acknowledges that Fund Protected Information constitutes confidential
material and trade secrets of Fund and Licensors. State Street will preserve the
confidentiality of Fund Protected Information, and State Street hereby
acknowledges that any unauthorized use, misuse, disclosure or taking of Fund
Protected Information, residing or existing internal or external to a computer,
computer system, or computer network, or the knowing and unauthorized accessing
or causing to be accessed of any computer, computer system, or computer network,
may be subject to civil liabilities and criminal penalties under applicable law.
State Street will so inform employees and agents who have access to the Fund
Protected Information or to any computer equipment capable of accessing the
same. Licensors are intended to be and are third party beneficiaries of State
Street's obligations and undertakings contained in this Section.
J. State Street hereby represents and warrants to Fund that it has determined
to its satisfaction that the Fund Systems are appropriate and suitable for its
use. FUND SYSTEMS ARE PROVIDED ON AN AS IS, AS AVAILABLE BASIS. FUND EXPRESSLY
DISCLAIMS ALL WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES
OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, EXCEPT THOSE WARRANTIES
EXPRESSLY STATED HEREIN.
10. MULTIPLE PORTFOLIOS. If Fund is comprised of more than one Portfolio, the
following provisions apply:
A. Each Portfolio will be regarded for all purposes hereunder as a separate
party apart from each other Portfolio. Unless the context otherwise requires,
with respect to every transaction covered hereby, every reference herein to Fund
is deemed to relate solely to the particular Portfolio to which such transaction
relates. Under no circumstances will the rights, obligations or remedies with
respect to a particular Portfolio constitute a right, obligation or remedy
applicable to any other Portfolio. The use of this single document to
memorialize the separate agreement as to each Portfolio is understood to be for
clerical convenience only and will not constitute any basis for joining the
Portfolios for any reason.
B. Absent written notification to the contrary by Fund or State Street, each
new Portfolio established in the future by Fund shall automatically become a
"Portfolio" for all purposes hereunder as if listed on Schedule A.
11. MISCELLANEOUS.
A. This Agreement will be construed according to, and the rights and
liabilities of the parties hereto will be governed by, the laws of the State of
Delaware without reference to the choice of laws principles thereof.
B. All terms and provisions hereof will be binding upon, inure to the benefit
of and be enforceable by the parties hereto and their respective successors and
permitted assigns.
C. The representations and warranties, the indemnifications extended
hereunder, and the provisions of Section 2.B.3 and Section 9 hereof are intended
to and will continue after and survive the expiration, termination or
cancellation hereof.
D. No provisions hereof may be amended or modified in any manner except by a
written agreement properly authorized and executed by each party hereto.
E. The failure of either party to insist upon the performance of any terms or
conditions hereof or to enforce any rights resulting from any breach of any of
the terms or conditions hereof, including the payment of damages, will not be
construed as a continuing or permanent waiver of any such terms, conditions,
rights or privileges, but the same will continue and remain in full force and
effect as if no such forbearance or waiver had occurred. No waiver, release or
discharge of any party's rights hereunder will be effective unless contained in
a written instrument signed by the party against whom such waiver, release or
discharge is sought to be enforced.
F. The captions herein are included for convenience of reference only, and in
no way define or limit any of the provisions hereof or otherwise affect their
construction or effect.
G. This Agreement may be executed in two or more counterparts, each of which
is deemed an original but all of which together constitute one and the same
instrument.
H. If any provision hereof 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.
I. The benefits of this Agreement may not be assigned by either party nor may
either party delegate all or a portion of its duties hereunder without the prior
written consent of the other party. Notwithstanding the foregoing, Fund agrees
that State Street may delegate all or a portion of its duties to an affiliate of
State Street, provided that such delegation will neither eliminate nor reduce
the obligations of State Street under this Agreement.
J. Neither the execution nor performance hereof will be deemed to create a
partnership or joint venture by and between State Street and Fund or any
Portfolio.
K. Except as specifically provided herein, this Agreement does not in any way
affect any other agreements entered into among the parties hereto and any
actions taken or omitted by either party hereunder will not affect any rights or
obligations of the other party hereunder.
L. Notice is hereby given that a copy of Fund's declaration of trust and all
amendments thereto is on file with the Secretary of State of the state of its
organization; that this Agreement has been executed on behalf of Fund by the
undersigned duly authorized representative of Fund in his/her capacity as such
and not individually; and that the obligations of this Agreement are binding
only upon the assets and property of Fund and not upon any Trustee, officer of
shareholder of Fund individually.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective duly authorized officers.
STATE STREET BANK AND TRUST FIRSTHAND FUNDS
COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------- --------------------------
Title: Vice-President Title: Secretary
------------------------------- --------------------------
EXHIBIT A -- INCOME AVAILABILITY SCHEDULE
Foreign--Income will be credited contractually on pay day in the markets noted
with Contractual Income Policy. The markets noted with Actual income policy will
be credited income when it is received.
Market Income Policy Market Income Policy Market Income Policy
Argentina Actual Hong Kong Contractual Poland Actual
Australia Contractual Hungary Actual Portugal Contractual
Austria Contractual India Actual Russia Actual
Bahrain Actual Indonesia Actual Singapore Contractual
Bangladesh Actual Ireland Actual Slovak Republic Actual
Belgium Contractual Israel Actual South Africa Actual
Bermuda Actual Italy Contractual South Korea Actual
* Bolivia Actual Ivory Coast Actual Spain Contractual
Botswana Actual * Jamaica Actual Sri Lanka Actual
Brazil Actual Japan Contractual Swaziland Actual
Canada Contractual Jordan Actual Sweden Contractual
Chile Actual Kenya Actual Switzerland Contractual
China Actual Lebanon Actual Taiwan Actual
Colombia Actual Luxembourg Actual Thailand Actual
Cyprus Actual Malaysia Actual * Trinidad & Tobago Actual
Czech Republic Actual Mauritius Actual * Tunisia Actual
Denmark Contractual Mexico Actual Turkey Actual
Ecuador Actual Morocco Actual United Kingdom Contractual
Egypt Actual Namibia Actual United States See Attached
**Euroclear Contractual/Actual Netherlands Contractual Uruguay Actual
Euro CDs Actual New Zealand Contractual Venezuela Actual
Finland Contractual Norway Contractual Zambia Actual
France Contractual Oman Actual Zimbabwe Actual
Germany Contractual Pakistan Actual Ghana Actual
Peru Actual Greece Actual Philippines Actual
* Market is not 17F-5 eligible
** For Euroclear, contractual income paid only in markets listed with Income
Policy of Contractual.
United States--
Income Type DTC FED PTC Physical
Dividends Contractual N/A N/A Actual
Fixed Rate Interest Contractual Contractual N/A Actual
Variable Rate Interest Contractual Contractual N/A Actual
GNMA I N/A N/A Contractual PD +1 N/A
GNMA II N/A N/A Contractual PD *** N/A
Mortgages Actual Contractual Contractual Actual
Maturities Actual Contractual N/A Actual
Exceptions to the above Contractual Income Policy include securities that are:
< Involved in a trade whose settlement either failed, or is pending over the
record date, (excluding the United States);
< On loan under a self directed securities lending program other than State
Street's own vendor lending program;
< Known to be in a condition of default, or suspected to present a risk of
default or payment delay;
< In the asset categories, without limitation, of Private Placements,
Derivatives, Options, Futures, CMOs, and Zero Coupon Bonds.
< Securities whose amount of income and redemption cannot be calculated in
advance of payable date, or determined in advance of actual collection, examples
include ADRs;
< Payments received as the result of a corporate action, not limited to,
bond calls, mandatory or optional puts, and tender offers.
*** For GNMA II securities, if the 19th day of the month is a business day,
Payable/Distribution Date is the next business day. If the 19th is not a
business day, but the 20th is a business day, Payable/Distribution date is the
first business day after the 20th. If both the 19th and 20th are not business
days, Payable/Distribution will be the next business day thereafter.
Argentina Citibank, N.A. --
Australia Westpac Banking Corporation --
Austria Erste Bank der Oesterreichischen --
Sparkassen AG
Bahrain The 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. --
People's The Hongkong and Shanghai Banking Corporation --
Republic of Limited, Shanghai and Shenzhen branches
China
Colombia Cititrust Colombia S.A.Sociedad Fiduciaria --
Costa Rica Banco BCT S.A. --
Croatia Privredana Banka Zagreb d.d --
Cyprus The Cyprus Popular Bank Ltd. --
Czech Ceskoslovenska Obchodni Banka, A.S. --
Republic
Denmark Den Danske Bank --
Ecuador Citibank, N.A. --
Egypt Egyptian British Bank --
(as delegate of The Hongkong and Shanghai
Banking Corporation Limited)
Estonia Hansabank --
Finland ▇▇▇▇▇▇ Bank Plc --
France Paribas, S.A. --
Germany Dresdner Bank AG --
Ghana Barclays Bank of Ghana Limited --
Greece National Bank of Greece S.A
Bank of Greece, System for Monitoring Transactions in Securities in
Book-Entry Form
Hong Kong Standard Chartered Bank --
Hungary Citibank Rt. --
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 Paribas, S.A. --
Ivory Coast Societe Generale de Banques en Cote d'Ivoire --
Jamaica Scotiabank Jamaica Trust and Merchant Bank, Ltd. --
Japan The Fuji Bank Limited Japan Securities Depository
The Sumitomo Bank, Limited Center (JASDEC)
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 The Hongkong and Shanghai Banking --
Korea Corporation Limited
Latvia A/s Hansabank --
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 --
Netherlands MeesPierson N.V. --
New Zealand ANZ Banking Group (New Zealand) Limited --
Norway Christiania Bank og Kreditkasse, ASA --
Oman The British Bank of the Middle East(as delegate of The --
Hongkong and Shanghai Banking Corporation Limited)
Pakistan Deutsche Bank AG --
Palestine British Bank of the Middle East (as delegate of the --
Hongkong and Shanghai Banking Corporation Limited)
Peru Citibank, N.A. --
Philippines Standard Chartered Bank --
Poland Citibank (Poland) 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 Ltd. --
Slovak Ceskoslovenska Obchodna Banka A.S. --
Republic
Slovenia Banka Austria d.d. --
South Africa Standard Bank of South Africa Limited --
Spain Banco Santander Central Hispano, S.A. --
Sri Lanka The Hongkong and Shanghai Banking Corporation Limited --
Swaziland Standard Bank Swaziland Limited --
Sweden Skandinaviska Enskilda Banken --
Switzerland UBS AG --
Taiwan - Central Trust of China --
R.O.C.
Thailand Standard Chartered Bank --
Trinidad Republic Bank Ltd. --
& Tobago
Tunisia Banque Internationale Arabe de Tunisie --
Turkey Citibank, N.A. --
Ukraine ING Bank, Ukraine --
United State Street Bank and Trust Company, --
Kingdom London Branch
Uruguay Citibank, N.A. --
Venezuela Citibank, N.A. --
Vietnam The Hongkong and Shanghai --
Banking Corporation Limited
Zambia Barclays Bank of Zambia Limited --
Zimbabwe Barclays Bank of Zimbabwe Limited --
Euroclear (The Euroclear System)/State Street London Limited
Cedel, S.A. (Cedel Bank, societe anonyme)/State Street London Limited
INTERSETTLE (for EASDAQ Securities)
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 Depots et de Virement de Titres S.A.;
-Banque Nationale de Belgique
Brazil -Companhia Brasileira de Liquidacao e
Bulgaria -Central Depository AD
-Bulgarian National Bank
Canada -The Canadian Depository for Securities Limited
Chile -Deposito Central de Valores S.A.
People's Republic -Shanghai Securities Central Clearing and Registration Corporation;
of China -Shenzhen Securities Central Clearing Co., Ltd.
Colombia -Deposito Centralizado de Valores
Costa Rica -Central de Valores S.A.
Croatia Ministry of Finance; - National Bank of Croatia
Czech Republic --Stredisko cennych papiru;
-Czech National Bank
Denmark -Vaerdipapircentralen (The Danish Securities Center)
Egypt -Misr Company for Clearing, Settlement, and Central Depository
Estonia -Eesti Vaartpaberite Keskdepositooruim
Finland -The Finnish Central Securities Depository
France -Societe Interprofessionnelle pour la Compensation des Valeurs Mobilieres
Germany -The Deutscher Borse Clearing AG
Greece -The Central Securities Depository (Apothetirion Titlon AE)
Hong Kong -The Central Clearing and Settlement System;
-Central Money Markets Unit
Hungary -Kozponti Elszamolohaz es Ertekatr (Budapest) Rt. (KELER) [Mandatory for
gov't Bonds and dematerialized equities only; SSB does not use for other securities]
India -The National Securities Depository Limited
-Reserve Bank of India
Indonesia -Bank Indonesia
-PT Kustodian Sentral Efek Indonesia
Ireland -The Central Bank of Ireland, Securities Settlement Office
Israel -The Tel Aviv Stock Exchange Clearing House Ltd.;
-Bank of Israel (As part of the TASE Clearinghouse system)
Italy -Monte Titoli S.p.A.;
-Banca d'Italia
Ivory Coast -Depositaire Central - Banque de Reglement
Jamaica -Jamaica Central Securities Depository
Japan -Bank of Japan Net System
Kenya -Central Bank of Kenya
Republic -Korea Securities Depository Corporation
of Korea
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 Systems
Mauritius -The Central Depository & Settlement Co. Ltd.
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)
New Zealand -New Zealand Central Securities Depository Limited
Norway -Verdipapirsentralen (the Norwegian Registry of Securities)
Oman -Muscat Securities Market Depository & Securities Registration Company
Pakistan -Central Depository Company of Pakistan Limited; state Bank of Pakistan
Palestine -The Palestine Stock Exchange
Peru -Caja de Valores y Liquidaciones S.A.
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 Wartosociowych);
-Central Treasury Bills Registrar
Portugal -Central de Valores Mobiliarios (Central)
Romania -National Securities Clearing, Settlement and Depository Co.;
-Bucharest Stock Exchange Registry Division;
-National Bank of Romania
Singapore -Central Depository (Pte)Limited;
-Monetary Authority of Singapore
Slovak Republic -Stredisko cennych papierov SR Bratislava, a.s.;
-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 VPC AB (the Swedish Central Securities Depository)
Switzerland -SIS SegaIntersettle
Taiwan - R.O.C. -The Taiwan Securities Central Depository Company, Ltd.
Thailand -Thailand Securities Depository Company Limited
Tunisia - Societe Tunisienne Interprofessionelle de Compensation et de Depot de
Valeurs Mobilieres
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; The Central Moneymarkets Office
Venezuela -Central Bank of Venezuela
Zambia -▇▇▇▇ Central Shares Depository Limited
-Bank of Zambia
EXHIBIT D -- 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.
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.
[X] 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.
[X] 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.
[X] 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.
[X] 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: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Authorized Signature
Type or Print Name ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title Secretary
Date 9 May 00
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 NumberSWIFT Number Facsimile 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)
Schedule A
Listing of Portfolios as of May 1, 2000
Technology Value Fund-Registered Trademark-
Technology Leaders Fund
Technology Innovators Fund
The Communications Fund(TM)
The e-Commerce Fund(TM)