Custodian, Investment Accounting and Remote Access Agreement
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This Agreement between *[Name of Fund] a *[business trust/corporation]
organized and existing under the laws of *[jurisdiction] (the "Fund"), and State
Street Bank and Trust Company, a Massachusetts trust company (the "State
Street"),
Whereas, the Fund is authorized to issue shares in separate series, with
each such series representing interests in a separate portfolio of securities
and other assets; and
Whereas, the Fund intends that this Agreement be applicable to *[#] series,
*[Names of Portfolios] (such series together with all other series subsequently
established by the Fund and made subject to this Agreement in accordance with
Section 19, be referred to herein as the "Portfolio(s)"); and
Whereas, the Fund desires to appoint State Street as its agent to perform
certain custodial and investment accounting and recordkeeping functions for the
assets of the portfolios.
Now Therefore, in consideration of the mutual covenants and agreements
hereinafter contained, the parties hereto agree as follows:
Section 1. Employment of State Street and Property to be Held by It. The Fund
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hereby employs State Street as the custodian of the assets of the Portfolios of
the Fund, including securities that the Fund, on behalf of the applicable
Portfolio, desires to be held in places within the United States ("domestic
securities") and securities it desires to be held outside the United States
("foreign securities"). The Fund, on behalf of the Portfolio(s), agrees to
deliver to 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 the 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 7
hereof), State Street shall on behalf of the applicable Portfolio(s) from time
to time employ one or more sub-custodians located in the United States, but only
in accordance with an applicable vote by the Board of *[Trustees/Directors] of
the Fund (the "Board") on behalf of the applicable Portfolio(s). State Street
may employ as sub-custodian for the Fund's foreign securities on behalf of the
applicable Portfolio(s) the foreign banking institutions and foreign securities
depositories designated in Schedules A and B hereto, but only in accordance with
the applicable provisions of Sections 3 and 4. State Street shall have no more
or less responsibility or liability to the Fund on account of any actions or
omissions of any sub-custodian so employed than any such sub-custodian has to
State Street.
Fund hereby constitutes and appoints State Street as its agent to perform
certain accounting and recordkeeping functions relating to portfolio
transactions required of a duly registered
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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 Portfolios.
Section 2. Duties of State Street with Respect to Property of the Fund Held By
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State Street in the United States
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Section 2.1 Holding Securities. State Street shall hold and physically
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segregate for the account of each Portfolio all non-cash property, to be held by
it in the United States, including all domestic securities owned by such
Portfolio other than securities which are maintained pursuant to Section 2.8 in
a clearing agency which acts as a securities depository or in a book-entry
system authorized by the U.S. Department of the Treasury (each, a "U.S.
Securities System").
Section 2.2 Delivery of Securities. State Street shall release and
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deliver domestic securities owned by a Portfolio 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 or nominees 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
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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
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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;
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
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upon from time to time by State Street and the Fund on behalf of the
Portfolio, which may be in the form of cash or obligations issued by
the United States government, its agencies or instrumentalities,
except that in connection with any loans for which collateral is to be
credited to 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 the Fund
on behalf of the Portfolio requiring a pledge of assets by the Fund on
behalf of the Portfolio, but only against receipt of amounts borrowed;
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12) For delivery in accordance with the provisions of any agreement among
the 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 of the Fund;
13) For delivery in accordance with the provisions of any agreement among
the 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 of the Fund;
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14) Upon receipt of instructions from the transfer agent for the Fund (the
"Transfer Agent") for delivery to such Transfer Agent or to the
holders of Shares in connection with distributions in kind, as may be
described from time to time in the currently effective prospectus and
statement of additional information of the Fund related to the
Portfolio (the "Prospectus"), in satisfaction of requests by holders
of Shares for repurchase or redemption; and
15) For any other purpose, but only upon receipt of Proper Instructions
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from the Fund on behalf of the applicable Portfolio specifying the
securities of the Portfolio 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 held by State
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Street (other than bearer securities) shall be registered in the name of the
Portfolio or in the name of any nominee of the Fund on behalf of the Portfolio
or of any nominee of State Street which nominee shall be assigned exclusively to
the Portfolio, unless the Fund has authorized in writing the appointment of a
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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 on behalf of the Portfolio under the terms of this Agreement shall
be in "street name" or other good delivery form. If, however, the Fund directs
State Street to maintain securities in "street name", State Street shall utilize
its best efforts only to timely collect income due the Fund on such securities
and to notify the Fund on a best efforts basis only of relevant corporate
actions including, without limitation, pendency of calls, maturities, tender or
exchange offers.
Section 2.4 Bank Accounts. State Street shall open and maintain a
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separate bank account or accounts in the United States in the name of each
Portfolio of the Fund, subject only to draft or order by State Street acting
pursuant to the terms of this Agreement, and shall hold in such account or
accounts, subject to the provisions hereof, all cash received by it from or for
the account of the Portfolio, other than cash maintained by the Portfolio in a
bank account established and used in accordance with Rule 17f-3 under the
Investment Company Act of 1940, as amended (the "1940 Act"). Funds held by
State Street for a Portfolio may be deposited by it to its credit as State
Street 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,
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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 Section
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2.3, State Street shall collect on a timely basis all income and other payments
with respect to registered domestic securities held hereunder to which each
Portfolio shall be entitled either by law or pursuant to custom in the
securities business, and shall collect on a timely basis all income and other
payments with respect to bearer domestic securities if, on the date of payment
by the issuer,
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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 the Fund. State
Street will have no duty or responsibility in connection therewith, other than
to provide the Fund with such information or data as may be necessary to assist
the Fund in arranging for the timely delivery to 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:
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 the 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 the Fund
in any bank, whether domestic or foreign; such transfer may be
effected prior to receipt of a confirmation from a broker and/or the
applicable bank pursuant to Proper Instructions from the Fund as
defined herein;
2) In connection with conversion, exchange or surrender of securities
owned by the Portfolio as set forth in Section 2.2 hereof;
3) For the redemption or repurchase of Shares issued as set forth in
Section 5 hereof;
4) For the payment of any expense or liability incurred by the Portfolio,
including but not limited to the following payments for the account of
the Portfolio: interest, taxes, management, accounting, transfer
agent and legal fees, and operating expenses of the Fund whether or
not such expenses are to be in whole or part capitalized or treated as
deferred expenses;
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5) For the payment of any dividends on Shares declared pursuant to the
governing documents of the Fund;
6) For payment of the amount of dividends received in respect of
securities sold short; and
7) For any other purpose, but only upon receipt of Proper Instructions
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from the Fund 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 appointment of any
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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
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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 the Fund at its
request. Upon request, State Street shall furnish the Fund on behalf
of the Portfolio confirmation of each transfer to or from the account
of the Portfolio in the form of a written advice or notice and
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shall furnish to the Fund on behalf of the Portfolio copies of daily
transaction sheets reflecting each day's transactions in the U.S.
Securities System for the account of the Portfolio;
▇) ▇▇▇▇▇ ▇▇▇▇▇▇ shall provide the 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 in this Agreement notwithstanding, State
Street shall be liable to the Fund for the benefit of the Portfolio
for any loss or damage to the Portfolio resulting from use of the U.S.
Securities System by reason of any negligence, misfeasance or
misconduct of 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 the 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 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
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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 the 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 from the Fund on
behalf of the applicable Portfolio.
Section 2.10 Ownership Certificates for Tax Purposes. State Street shall
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execute ownership and other certificates and affidavits for all federal and
state tax purposes in connection with receipt of income or other payments with
respect to domestic securities of each Portfolio held by it and in connection
with transfers of securities.
Section 2.11 Proxies. State Street shall, with respect to the domestic
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securities held hereunder, cause to be promptly executed by the registered
holder of such securities, if the
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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
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the provisions of ▇▇▇▇▇▇▇ ▇.▇, ▇▇▇▇▇ ▇▇▇▇▇▇ shall transmit promptly to the Fund
for each Portfolio all written information (including, without limitation,
pendency of calls and maturities of domestic securities and expirations of
rights in connection therewith and notices of exercise of call and put options
written by the Fund on behalf of the Portfolio and the maturity of futures
contracts purchased or sold by the Portfolio) received by 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
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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.
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"Rule 17f-7" means Rule 17f-7 promulgated under the 1940 Act.
Section 3.2. State Street as Foreign Custody Manager.
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3.2.1 Delegation to State Street as Foreign Custody Manager. The
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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 of the Portfolios 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
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responsible for performing the delegated responsibilities defined below only
with respect to the countries and custody arrangements for each such country
listed on Schedule A to this Agreement, which list of countries may be amended
from time to time by the Fund with the agreement of the Foreign Custody Manager.
The Foreign Custody Manager shall list on Schedule A the Eligible Foreign
Custodians selected by the Foreign Custody Manager to maintain the assets of the
Portfolios, which list of Eligible Foreign Custodians may be amended from time
to time in the sole discretion of the Foreign Custody Manager. The Foreign
Custody Manager will provide amended versions of Schedule A in accordance with
Section 3.2.5 hereof.
Upon the receipt by the Foreign Custody Manager of Proper Instructions to open
an account or to place or maintain Foreign Assets in a country listed on
Schedule A, and the fulfillment by the Fund, on behalf of the Portfolios, of the
applicable account opening requirements for such country, the Foreign Custody
Manager shall be deemed to have been delegated by the Board on behalf of the
Portfolios responsibility as Foreign Custody Manager with respect to that
country and to have accepted such delegation. Execution of this Amendment by the
Fund shall be deemed to be a Proper Instruction to open an account, or to place
or maintain Foreign Assets, in each country listed on Schedule A in which State
Street has previously placed or currently maintains Foreign Assets pursuant to
the terms of this Agreement. 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 the
Fund. Thirty days (or such longer period to which the parties agree in writing)
after receipt of any such notice by the Fund, State Street shall have no further
responsibility in its capacity as Foreign Custody Manager to the 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
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this Section 3.2, the Foreign Custody Manager may place and maintain the Foreign
Assets in the care
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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
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maintains Foreign Assets with an Eligible Foreign Custodian selected by the
Foreign Custody Manager, the Foreign Custody Manager shall establish a system to
monitor (i) the appropriateness of maintaining the Foreign Assets with such
Eligible Foreign Custodian and (ii) the contract governing the custody
arrangements established by the Foreign Custody Manager with the Eligible
Foreign Custodian. In the event the Foreign Custody Manager determines that the
custody arrangements with an Eligible Foreign Custodian it has selected are no
longer appropriate, the Foreign Custody Manager shall notify the Board in
accordance with Section 3.2.5 hereunder.
3.2.4 Guidelines for the Exercise of Delegated Authority. For
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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.
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In performing the responsibilities delegated to it, the Foreign Custody Manager
agrees to exercise reasonable care, prudence and diligence such as a person
having responsibility for the safekeeping of assets of management investment
companies registered under the 1940 Act would exercise.
3.2.7 Representations with Respect to Rule 17f-5. The Foreign
------------------------------------------
Custody Manager represents to the Fund that it is a U.S. Bank as defined in
section (a)(7) of Rule 17f-5. The Fund represents to State Street that the
Board has determined that it is reasonable for the
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Board to rely on State Street to perform the responsibilities delegated pursuant
to this Agreement to State Street as the Foreign Custody Manager of the
Portfolios.
3.2.8 Effective Date and Termination of State Street as Foreign
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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 the
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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 the 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.
Section 4. Duties of State Street with Respect to Property of the Portfolios
-----------------------------------------------------------------
Held Outside the United States
------------------------------
Section 4.1 Definitions. As used throughout this Agreement, the
-----------
capitalized terms set forth below shall have the indicated meanings:
"Foreign Securities System" means an Eligible Securities Depository listed on
Schedule B hereto.
"Foreign Sub-Custodian" means a foreign banking institution serving as an
Eligible Foreign Custodian.
Section 4.2. Holding Securities. 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 of the Portfolios which are maintained
in such account shall identify those securities as belonging to the Portfolios
and (ii), to the extent permitted and customary in the market in which the
account is maintained, State Street shall require that securities so held by the
-11-
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.
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 of the Portfolios 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 of the Portfolios;
(iv) to the issuer thereof or its agent when such foreign securities are
called, redeemed, retired or otherwise become payable;
(v) to the issuer thereof, or its agent, for transfer into the name of
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
-12-
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;
(ii) in connection with the conversion, exchange or surrender of foreign
securities of the Portfolio;
(iii) for the payment of any expense or liability of the Portfolio,
including but not limited to the following payments: interest,
taxes, investment advisory fees, transfer agency fees, fees under
this Agreement, 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;
-13-
(vi) for payment of part or all of the dividends received in respect of
securities sold short;
(vii) in connection with the borrowing or lending of foreign securities;
and
(viii) for any other purpose, but only upon receipt of Proper Instructions
specifying the amount of such payment and naming the person or
persons to whom such payment is to be made.
4.4.3. Market Conditions. Notwithstanding any provision of this
-----------------
Agreement to the contrary, settlement and payment for Foreign Assets received
for the account of the Portfolios and delivery of Foreign Assets maintained for
the account of the Portfolios may be effected in accordance with the customary
established securities trading or processing practices and procedures in the
country or market in which the transaction occurs, including, without
limitation, delivering Foreign Assets to the purchaser thereof or to a dealer
therefor (or an agent for such purchaser or dealer) with the expectation of
receiving later payment for such Foreign Assets from such purchaser or dealer.
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 the Fund on behalf of such Portfolio
agrees to hold any such nominee harmless from any liability as a holder of
record of such foreign securities. State Street or a Foreign Sub-Custodian shall
not be obligated to accept securities on behalf of a Portfolio under the terms
of this Agreement unless the form of such securities and the manner in which
they are delivered are in accordance with reasonable market practice.
Section 4.6 Bank Accounts. State Street shall identify on its books as
-------------
belonging to the 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 of this Agreement 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.
-14-
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, the 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. The Fund acknowledges that
local conditions, including lack of regulation, onerous procedural obligations,
lack of notice and other factors may have the effect of severely limiting the
ability of the Fund to exercise shareholder rights.
Section 4.9. Communications Relating to Foreign Securities. State Street
---------------------------------------------
shall transmit promptly to the 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 the 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 the 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 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 the 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 the Fund to notify State Street of the obligations imposed on
the Fund with respect to the Portfolios or State Street as custodian of the
Portfolios by the tax law of
-15-
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 the Fund with respect to any claim for exemption or
refund under the tax law of countries for which the Fund has provided such
information.
Section 4.12. Liability of 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 in this Agreement 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 the Fund.
State Street will provide timely notification to the Fund on behalf of each such
Portfolio and the Transfer Agent of any receipt by it of payments for Shares of
such Portfolio.
From such funds as may be available for the purpose, 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 the 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 the Fund and State Street.
Section 6. Investment Accounting Duties and Responsibilities.
--------------------------------------------------
Section 6.1. 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.
-16-
Section 6.2 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: (1) required to be maintained by Fund with respect to
portfolio transactions under Section 31(a) of the 1940 Act and the rules and
regulations from time to time adopted thereunder; (2) 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.
Section 6.3 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 6.4 Valuation of Assets. State Street will value the assets of
-------------------
each Portfolio in accordance with Fund's Instructions utilizing the pricing
sources designated by Fund ("Pricing Sources") on Price Source Authorization
Addendum attached hereto. State Street will calculate each Portfolio's net
asset value in accordance with the Portfolio's prospectus.
Section 7. 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
-17-
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. The Fund shall cause all oral instructions to be confirmed
in writing. Proper Instructions may include communications effected directly
between electro-mechanical or electronic devices provided that the Fund and
State Street agree to security procedures, including but not limited to, the
security procedures selected by the Fund in the Funds Transfer Addendum attached
hereto. For purposes of this Section, Proper Instructions shall include
instructions received by State Street pursuant to any three-party agreement
which requires a segregated asset account in accordance with Section 2.10.
Section 8. Actions Permitted without Express Authority. State Street may in
-------------------------------------------
its discretion, without express authority from the Fund on behalf of each
applicable Portfolio:
1) make payments to itself or others for minor expenses of handling
securities or other similar items relating to its duties under this
Agreement, provided that all such payments shall be accounted for to
--------
the Fund on behalf of the Portfolio;
2) surrender securities in temporary form for securities in definitive
form;
3) endorse for collection, in the name of the Portfolio, checks, drafts
and other negotiable instruments; and
4) in general, attend to all non-discretionary details in connection with
the sale, exchange, substitution, purchase, transfer and other
dealings with the securities and property of the Portfolio except as
otherwise directed by the Board.
Section 9. Evidence of Authority. 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 the Fund. State Street may receive and accept a copy of a
resolution certified by the Secretary or an Assistant Secretary of the Fund
("Certified Resolution") as conclusive evidence (a) of the authority of any
person to act in accordance with such resolution or (b) of any determination or
of any action by the Board as described in such resolution, and such resolution
may be considered as in full force and effect until receipt by State Street of
written notice to the contrary.
Section 10. Duties of State Street with Respect to the Books of Account and
---------------------------------------------------------------
Calculation of Net Asset Value and Net Income. State Street shall cooperate
---------------------------------------------
with and supply necessary information to the entity or entities appointed by the
Board to keep the books of account of each Portfolio and/or compute the net
asset value per Share of the outstanding Shares or, if directed in writing to do
so by the Fund on behalf of the Portfolio, shall itself keep such books of
account and/or compute such net asset value per Share. If so directed, State
Street shall also calculate daily the net income of the Portfolio as described
in the Prospectus and shall advise the Fund and the
-18-
Transfer Agent daily of the total amounts of such net income and, if instructed
in writing by an officer of the Fund to do so, shall advise the Transfer Agent
periodically of the division of such net income among its various components.
The calculations of the net asset value per Share and the daily income of each
Portfolio shall be made at the time or times described from time to time in the
Prospectus.
Section 11. Records. State Street shall with respect to each Portfolio create
-------
and maintain all records relating to its activities and obligations under this
Agreement in such manner as will meet the obligations of the Fund under the 1940
Act, with particular attention to Section 31 thereof and Rules 31a-1 and 31a-2
thereunder. All such records shall be the property of the Fund and shall at all
times during the regular business hours of State Street be open for inspection
by duly authorized officers, employees or agents of the Fund and employees and
agents of the SEC. State Street shall, at the Fund's request, supply the Fund
with a tabulation of securities owned by each Portfolio and held by State Street
and shall, when requested to do so by the Fund and for such compensation as
shall be agreed upon between the Fund and State Street, include certificate
numbers in such tabulations.
Section 12. Opinion of Fund's Independent Accountant. State Street shall take
----------------------------------------
all reasonable action, as the Fund on behalf of each applicable Portfolio may
from time to time request, to obtain from year to year favorable opinions from
the Fund's independent accountants with respect to its activities hereunder in
connection with the preparation of the Fund's Form N-1A, and Form N-SAR or other
annual reports to the SEC and with respect to any other requirements thereof.
Section 13. Reports to Fund by Independent Public Accountants. State Street
-------------------------------------------------
shall provide the Fund, on behalf of each of the Portfolios at such times as the
Fund may reasonably require, with reports by independent public accountants on
the accounting system, internal accounting control and procedures for
safeguarding securities, futures contracts and options on futures contracts,
including securities deposited and/or maintained in a U.S. Securities System or
a Foreign Securities System, relating to the services provided by State Street
under this Agreement; such reports, shall be of sufficient scope and in
sufficient detail, as may reasonably be required by the Fund to provide
reasonable assurance that any material inadequacies would be disclosed by such
examination, and, if there are no such inadequacies, the reports shall so state.
Section 14. Compensation of State Street. State Street shall be entitled to
----------------------------
reasonable compensation for its services and expenses as State Street, as agreed
upon from time to time between the Fund on behalf of each applicable Portfolio
and State Street.
Section 15. 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 to this Agreement and shall
be held harmless in acting upon any notice, request, consent, certificate or
other instrument reasonably believed by it to be genuine and to be signed by the
proper party or parties, including any futures commission merchant acting
pursuant to the terms of a three-party futures or options agreement. State
Street shall be held to the exercise of reasonable care in
-19-
carrying out the provisions of this Agreement, but shall be kept indemnified by
and shall be without liability to the Fund for any action taken or omitted by it
in good faith without negligence, including, without limitation, acting in
accordance with any Proper Instruction. It shall be entitled to rely on and may
act upon advice of counsel (who may be counsel for the Fund) on all matters, and
shall be without liability for any action reasonably taken or omitted pursuant
to such advice. State Street shall be without liability to the Fund and the
Portfolios for any loss, liability, claim or expense resulting from or caused by
anything which is part of Country Risk (as defined in Section 3 hereof),
including without limitation nationalization, expropriation, currency
restrictions, or acts of war, revolution, riots or terrorism.
Except as may arise from 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 the 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 the 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, the 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 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 in this Agreement.
If the 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 the Fund or the Portfolio being liable for the payment of
money or incurring liability of some other form, the Fund on behalf of the
Portfolio, as a prerequisite to requiring State Street to take such action,
shall provide indemnity to State Street in an amount and form satisfactory to
it.
-20-
If the 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 the 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 16. Effective Period, Termination and Amendment. This Agreement shall
-------------------------------------------
become effective as of its execution, shall continue in full force and effect
until terminated as hereinafter provided, may be amended at any time by mutual
agreement of the parties hereto and may be terminated by either party by an
instrument in writing delivered or mailed, postage prepaid to the other party,
such termination to take effect not sooner than sixty (60) days after the date
of such delivery or mailing; provided, however, that the Fund shall not amend or
--------
terminate this Agreement in contravention of any applicable federal or state
regulations, or any provision of the Fund's *[Declaration of Trust/Articles of
Incorporation/other governing documents], and further provided, that the Fund on
behalf of one or more of the Portfolios may at any time by action of its Board
(i) substitute another bank or trust company for 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 of the Agreement, the 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 17. Successor Custodian. If a successor custodian for one or more
-------------------
Portfolios shall be appointed by the Board, State Street shall, upon
termination, 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
-21-
"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 under this Agreement on
behalf of each applicable Portfolio, and to transfer to an account of such
successor custodian all of the securities of each such Portfolio held in any
Securities System. Thereafter, such bank or trust company shall be the successor
of State Street under this Agreement.
In the event that securities, funds and other properties remain in the
possession of State Street after the date of termination hereof owing to failure
of the Fund to procure the Certified Resolution to appoint a successor
custodian, State Street shall be entitled to fair compensation for its services
during such period as State Street retains possession of such securities, funds
and other properties and the provisions of this Agreement relating to the duties
and obligations of State Street shall remain in full force and effect.
Section 18. Interpretive and Additional Provisions. In connection with the
--------------------------------------
operation of this Agreement, State Street and the Fund on behalf of each of the
Portfolios, may from time to time agree on such provisions interpretive of or in
addition to the provisions of this Agreement as may in their joint opinion be
consistent with the general tenor of this Agreement. Any such interpretive or
additional provisions shall be in a writing signed by both parties and shall be
annexed hereto, provided that no such interpretive or additional provisions
--------
shall contravene any applicable federal or state regulations or any provision of
the Fund's *[Declaration of Trust/Articles of Incorporation/other 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 19. Additional Funds. In the event that the Fund establishes one or
----------------
more additional series of Shares with respect to which it desires to have State
Street render services as custodian and investment accounting agent under the
terms hereof, it shall so notify State Street in writing, and if State Street
agrees in writing to provide such services, such series of Shares shall become a
Portfolio hereunder.
Section 20. Massachusetts Law to Apply. This Agreement shall be construed and
--------------------------
the provisions thereof interpreted under and in accordance with laws of The
Commonwealth of Massachusetts.
Section 21. Prior Agreements. This Agreement supersedes and terminates, as of
----------------
the date hereof, all prior Agreements between the Fund on behalf of each of the
Portfolios and State Street relating to the custody of the Fund's assets.
Section 22. Notices. Any notice, instruction or other instrument required to
-------
be given hereunder may be delivered in person to the offices of the parties as
set forth herein during normal business hours or delivered prepaid registered
mail or by telex, cable or telecopy to the
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parties at the following addresses or such other addresses as may be notified by
any party from time to time.
To the Fund: *[Fund Name]
*[address]
Attention: [contact]
Telephone: *
Telecopy: *
To State Street: State Street Bank and Trust Company
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: [unit head]
Telephone: 816-*
Telecopy: 816-*
Such notice, instruction or other instrument shall be deemed to have been served
in the case of a registered letter at the expiration of five business days after
posting, in the case of cable twenty-four hours after dispatch and, in the case
of telex, immediately on dispatch and if delivered outside normal business hours
it shall be deemed to have been received at the next time after delivery when
normal business hours commence and in the case of cable, telex or telecopy on
the business day after the receipt thereof. Evidence that the notice was
properly addressed, stamped and put into the post shall be conclusive evidence
of posting.
Section 23. Reproduction of Documents. This Agreement and all schedules,
-------------------------
addenda, exhibits, attachments and amendments hereto may be reproduced by any
photographic, photostatic, microfilm, micro-card, miniature photographic or
other similar process. The parties hereto all/each agree that any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding, whether or not the original is in
existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
Section 24. Remote Access Services.
----------------------
Section 24.1 The System. Fund acknowledges that 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 that
it provides to Fund (the "Systems"). In this regard, State Street maintains
certain information in databases under its control and ownership that it makes
available on a remote basis to its customers (the "Remote Access Services").
Section 24.2 The Services. The provisions of this Section of this
------------
Agreement shall govern use of all Systems that State Street may from time to
time agree to provide Fund, and its
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designated investment advisors, consultants or other third parties authorized by
State Street who agree to abide by the terms of this Section ("Authorized
Designees") in order to provide Remote Access Services for the purpose of
obtaining and analyzing reports and information.
Section 24.3 Security Procedures. Fund agrees to comply, and to cause its
-------------------
Authorized Designees to comply, with remote access operating standards and
procedures and with user identification or other password control requirements
and other security procedures as may be issued from time to time by State Street
for use of the Systems and access to the Remote Access Services. Fund agrees to
advise State Street immediately in the event that Fund learns or has reason to
believe that any person to whom it has given access to the Systems or the Remote
Access Services has violated or intends to violate the terms of this Section and
Fund will cooperate with State Street in seeking injunctive or other equitable
relief. Fund agrees to discontinue use of the Systems and Remote Access
Services, if requested, for any security reasons cited by State Street.
Section 24.4 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 State Street and Fund.
Fund 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 Section, 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.
Section 24.5 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 Fund 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"). Fund
agrees on its own behalf and its Authorized Designees to keep the Proprietary
Information confidential and to limit access to its employees and Authorized
Designees (under a similar duty of confidentiality) who require access to the
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.
Fund agrees to use the Remote Access Services only in connection with the proper
purposes of this Agreement. Fund will not, and will cause its employees and
Authorized Designees not to, (1) permit any third party to use the Systems or
the Remote Access Services, (2) 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 Section, (3) use the
Systems or the Remote Access Services for any fund, trust or other investment
vehicle without
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the prior written consent of State Street, or (4) 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 the
Fund, as State Street's customer.
Funds agrees that neither Fund nor its Authorized Designees will modify the
Systems in any way, enhance or otherwise create derivative works based upon the
Systems, nor will Fund or its Authorized Designees reverse engineer, decompile
or otherwise attempt to secure the source code for all or any part of the
Systems.
Fund acknowledges that the disclosure of any Proprietary Information, or of any
information which at law or equity ought to remain confidential, will
immediately give rise to continuing irreparable injury 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.
Section 24.6 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 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 Fund and its Authorized
Designees shall be solely responsible for the investment decisions, regulatory
reports and statements produced using the Remote Access Services. State Street
and its relevant licensors will not be liable to Fund or its Authorized
Designees for any direct or indirect, special, incidental, punitive or
consequential damages arising out of or in any way connected with the 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.
Section 24.7 Infringement. State Street will defend or, at its option,
------------
settle any claim or action brought against Fund 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 Fund under this Section constitutes direct infringement of any United
States patent or copyright or misappropriation of a trade secret, provided that
Fund notifies State Street promptly in writing of any such claim or proceeding
and cooperates with State Street in the defense of such claim or proceeding.
Should 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
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copyright or trade secret laws of the United States, State Street shall have the
right, at State Street's sole option, to (1) procure for Fund the right to
continue using such System or Remote Access Services, (2) replace or modify such
System or Remote Access Services so that the System or the Remote Access
Services becomes noninfringing, or (3) terminate Fund's access to the System or
the Remote Access Services without further obligation.
Section 24.8 Termination of Remote Access Services. Either party may
-------------------------------------
terminate access to the System or the Remote Access Services (1) 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 Fund or
thirty (30) days' notice in the case of notice from Fund to State Street of
termination, or (2) immediately for failure of the other party to comply with
any material term and condition of this Section by giving the other party
written notice of termination. Access to the System or Remote Access Services
shall in any event terminate within ninety (90) days after the termination of
any State Street custodian, accounting or other services agreement applicable to
Fund. In the event of termination, Fund will return to State Street all copies
of documentation and other confidential information in Fund's possession or in
the possession of its Authorized Designees. The foregoing provisions with
respect to confidentiality and infringement will survive termination for a
period of three (3) years.
Section 25. 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 the Fund to indicate whether it authorizes State
Street to provide the Fund's name, address, and share position to requesting
companies whose securities the Fund owns. If the Fund tells ▇▇▇▇▇ ▇▇▇▇▇▇ "▇▇",
▇▇▇▇▇ ▇▇▇▇▇▇ will not provide this information to requesting companies. If the
Fund tells State Street "yes" or does not check either "yes" or "no" below,
State Street is required by the rule to treat the Fund as consenting to
disclosure of this information for all securities owned by the Fund or any funds
or accounts established by the Fund. For the Fund's protection, the Rule
prohibits the requesting company from using the Fund's name and address for any
purpose other than corporate communications. Please indicate below whether the
Fund consents or objects by checking one of the alternatives below.
YES [ ] State Street is authorized to release the Fund's name, address, and
share positions.
NO [ ] State Street is not authorized to release the Fund's name, address,
and share positions.
IN WITNESS WHEREOF, each of the parties has caused this instrument to be
executed in its name and behalf by its duly authorized representative and its
seal to be hereunder affixed as of *[date].
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*[Fund Name] 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:
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Funds Transfer Addendum
price source authorization addendcum
Schedule A
Schedule B
Schedule C
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