EXHIBIT G
FORM OF
MASTER CUSTODIAN CONTRACT
This Master Custodian Contract (this "Contract") is made as of February 8,
2007 by and among each registered investment company identified on the signature
page hereto (each such investment company and each investment company
subsequently made subject to this Contract in accordance with Section 21.1
below, shall hereinafter be referred to as a "FUND" and references made herein
to "the Fund" shall be deemed references to each Fund), and STATE STREET BANK
and TRUST COMPANY, a Massachusetts trust company (the "CUSTODIAN").
WITNESSETH:
WHEREAS, each Fund is authorized to issue shares of common stock or shares
of beneficial interest in separate series ("SHARES"), with each such series
representing interests in a separate portfolio of securities and other assets;
and
WHEREAS, each Fund intends that this Contract be applicable to each of its
series set forth on Appendix A hereto (such series together with all other
series subsequently established by the Fund and made subject to this Contract in
accordance with Section 21.2 below, shall hereinafter be referred to as the
"PORTFOLIOS");
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter contained, the parties hereto agree as follows:
1. Employment of Custodian and Property to be Held by It
Each Fund hereby employs the Custodian as a custodian of assets of the
Portfolios, including securities which the Fund, on behalf of the applicable
Portfolios, 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"). Each Fund on behalf of the Portfolios agrees to deliver
to the Custodian all securities and cash of the Portfolios, and all payments of
income, payments of principal or capital distributions received by it with
respect to all securities owned by the Portfolios from time to time, and the
cash consideration received by it for such new or treasury shares of capital
stock of the Fund representing Shares as may be issued or sold from time to
time. The Custodian shall not be responsible for any property of a Portfolio
which is not received by it or which is delivered out in accordance with Proper
Instructions (as such term is defined in Article 9 hereof) including, without
limitation, Portfolio property (i) held by brokers, private bankers or other
entities on behalf of the Portfolio (each a "LOCAL AGENT"), (ii) held by Special
Sub-Custodians (as such term is defined in Article 6 hereof), or (iii) held by
entities which have advanced monies to or on behalf of the Portfolio and which
have received Portfolio property as security for such advances (each a
"PLEDGEE"). With respect to uncertificated shares (the "UNDERLYING SHARES") of
registered "investment companies" (as defined in Section 3(a)(1) of the
Investment Company Act of 1940, as amended from time to time (the "1940 ACT")),
whether in the same "group of investment companies" (as defined in Section
12(d)(1)(G)(ii) of the ▇▇▇▇ ▇▇▇) or otherwise, including pursuant to Section
12(d)(1)(F) of the 1940 Act
(hereinafter sometimes referred to as the "UNDERLYING PORTFOLIOS") the holding
of confirmation statements that identify the shares as being recorded in the
Custodian's name on behalf of the Portfolios will be deemed custody for purposes
hereof.
Upon receipt of Proper Instructions, the Custodian shall on behalf of the
applicable Portfolios from time to time employ one or more sub-custodians,
located in the United States as approved by the Board; provided, however, that
the Custodian shall have no more or less responsibility or liability to the
Funds on account of any actions or omissions of any sub-custodian so employed
than any such sub-custodian has to the Custodian. The Custodian may place and
maintain each Portfolio's foreign securities with foreign banking institution
sub-custodians employed by the Custodian and/or foreign securities depositories,
all as designated in Schedules A and B hereto, but only in accordance with the
applicable provisions of Articles 3 and 4 hereof.
2. Duties of the Custodian with Respect to Property of the Fund Held By the
Custodian in the United States
2.1 Holding Securities. The Custodian shall hold and physically segregate for
the account of each Portfolio all non-cash property to be held by it in the
United States including all domestic securities owned by such Portfolio,
other than (a) securities which are maintained pursuant to Section 2.9 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 and certain
federal agencies (each, a "U.S. SECURITIES SYSTEM") and (b) Underlying
Shares owned by each Fund which are maintained pursuant to Section 2.11
hereof in an account with State Street Bank and Trust Company or such other
entity which may from time to time act as a transfer agent for the
Underlying Portfolios (the "UNDERLYING TRANSFER AGENT").
2.2 Delivery of Securities. The Custodian shall release and deliver domestic
securities owned by a Portfolio held by the Custodian in a U.S. Securities
System account of the Custodian only upon receipt of Proper Instructions
from the Fund 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 2.9 hereof;
4) To the depository agent in connection with tender or other similar
offers for securities of the Portfolio;
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5) To the issuer thereof or its agent when such securities are called,
redeemed, retired or otherwise become payable; provided that, in any
such case, the cash or other consideration is to be delivered to the
Custodian;
6) To the issuer thereof, or its agent, for transfer into the name of the
Portfolio or into the name of any nominee or nominees of the Custodian
or into the name or nominee name of any agent appointed pursuant to
Section 2.8 or into the name or nominee name of any sub-custodian
appointed pursuant to Article 1; or for exchange for a different
number of bonds, certificates or other evidence representing the same
aggregate face amount or number of units; provided that, in any such
case, the new securities are to be delivered to the Custodian;
7) Upon the sale of such securities for the account of the Portfolio, to
the broker or its clearing agent, against a receipt, for examination
in accordance with "street delivery" custom; provided that in any such
case, the Custodian shall have no responsibility or liability for any
loss arising from the delivery of such securities prior to receiving
payment for such securities except as may arise from the Custodian's
own negligence or willful misconduct;
8) For exchange or conversion pursuant to any plan of merger,
consolidation, recapitalization, reorganization or readjustment of the
securities of the issuer of such securities, or pursuant to provisions
for conversion contained in such securities, or pursuant to any
deposit agreement; provided that, in any such case, the new securities
and cash, if any, are to be delivered to the Custodian;
9) In the case of warrants, rights or similar securities, the surrender
thereof in the exercise of such warrants, rights or similar securities
or the surrender of interim receipts or temporary securities for
definitive securities; provided that, in any such case, the new
securities and cash, if any, are to be delivered to the Custodian;
10) For delivery in connection with any loans of securities made by the
Portfolio;
11) For delivery as security in connection with any borrowings 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;
12) For delivery in accordance with the provisions of any agreement among
the Fund on behalf of the Portfolio, the Custodian and a broker-dealer
registered under the Securities Exchange Act of 1934, as amended (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
Fund on behalf of a Portfolio;
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13) For delivery in accordance with the provisions of any agreement among
the Fund on behalf of the Portfolio, the Custodian, and a Futures
Commission Merchant registered under the Commodity Exchange Act,
relating to compliance with the rules of the Commodity Futures Trading
Commission (the "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;
14) Upon receipt of instructions from the transfer agent ("TRANSFER
AGENT") for the Fund, 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 ("PROSPECTUS"), in satisfaction of requests by holders of
Shares for repurchase or redemption; and
15) Upon the sale or other delivery of such securities (including, without
limitation, to one or more (a) Special Sub-Custodians or (b)
additional custodians appointed by the Fund, and communicated to the
Custodian from time to time via a writing duly executed by an
authorized officer of the Fund, for the purpose of engaging in
repurchase agreement or securities lending transactions, each a "REPO
CUSTODIAN"), and prior to receipt of payment therefor, as set forth in
written Proper Instructions (such delivery in advance of payment,
along with payment in advance of delivery made in accordance with
Section 2.6(7), as applicable, shall each be referred to herein as a
"FREE TRADE"), provided that such Proper Instructions shall set forth
(a) the securities of the Portfolio to be delivered and (b) the
person(s) to whom delivery of such securities shall be made;
16) For delivery as initial or variation margin in connection with futures
or options on futures contracts entered into by the Fund on behalf of
the Portfolio; and
17) In the case of a sale processed through the Underlying Transfer Agent
of Underlying Shares, in accordance with Section 2.11 hereof; and
18) For any other purpose, but only upon receipt of Proper Instructions
from the Fund on behalf of the applicable Portfolio specifying (a) the
securities of the Portfolio to be delivered and (b) the person or
persons to whom delivery of such securities shall be made.
2.3 Registration of Securities. Domestic securities held by the Custodian
(other than bearer securities) shall be registered in the name of the
Portfolio or in the name of any nominee of a Fund on behalf of the
Portfolio or of any nominee of the Custodian which nominee shall be
assigned exclusively to the Portfolio, unless the Fund has authorized in
writing the appointment of a nominee to be used in common with other
registered investment companies having the same investment adviser as the
Portfolio, or in the name or nominee name of any agent appointed pursuant
to Section 2.8 or in the name or nominee name of any sub-custodian
appointed pursuant to Article 1. All securities accepted by the Custodian
on behalf of the Portfolio under the terms of this Contract shall be in
"street name" or other
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good delivery form. If, however, a Fund directs the Custodian to maintain
securities in "street name", the Custodian shall utilize its best efforts
only to timely collect income due the Fund on such securities and to notify
the Fund on a best efforts basis only of relevant corporate actions
including, without limitation, pendency of calls, maturities, tender or
exchange offers.
2.4 Bank Accounts. The Custodian shall open and maintain a separate bank
account or accounts in the United States in the name of each Portfolio of
each Fund, subject only to draft or order by the Custodian acting pursuant
to the terms of this Contract, and shall hold in such account or accounts,
subject to the provisions hereof, all cash received by it from or for the
account of the Portfolio, other than cash maintained by the Portfolio in a
bank account established and used in accordance with Rule 17f-3 under the
1940 Act. Funds held by the Custodian for a Portfolio may be deposited by
it to its credit as Custodian in the banking department of the Custodian or
in such other banks or trust companies as it may in its discretion deem
necessary or desirable; provided, however, that every such bank or trust
company shall be qualified to act as a custodian under the 1940 Act and
that each such bank or trust company and the funds to be deposited with
each such bank or trust company shall on behalf of each applicable
Portfolio be approved by vote of a majority of the Board of Directors of
the applicable Fund (in each case, the "BOARD"). Such funds shall be
deposited by the Custodian in its capacity as Custodian and shall be
withdrawable by the Custodian only in that capacity.
2.5 Collection of Income. Except with respect to Portfolio property released
and delivered pursuant to Section 2.2(10) or 2.2(15) or purchased pursuant
to Section 2.6(7), and subject to the provisions of Section 2.3, the
Custodian shall collect on a timely basis all income and other payments
with respect to registered domestic securities held hereunder to which each
Portfolio shall be entitled either by law or pursuant to contract or custom
in the securities business, and shall collect on a timely basis all income
and other payments with respect to bearer domestic securities if, on the
date of payment by the issuer, such securities are held by the Custodian or
its agent thereof. Without limiting the generality of the foregoing, the
Custodian shall detach and present for payment all coupons and other income
items requiring presentation as and when they become due and shall collect
interest when due on securities held hereunder. The Custodian shall credit
income to the Portfolio as such income is received or in accordance with
Custodian's then current payable date income schedule. Any credit to the
Portfolio in advance of receipt may be reversed when the Custodian
determines that payment will not occur in due course and the Portfolio may
be charged at the Custodian's applicable rate for time credited. Income on
securities loaned other than from the Custodian's securities lending
program shall be credited as received. Income due each Portfolio on
securities loaned pursuant to the provisions of Section 2.2(10) shall be
the responsibility of the applicable Fund. The Custodian will have no duty
or responsibility in connection therewith, other than to provide the Fund
with such information or data as may be necessary to assist the Fund in
arranging for the timely delivery to the Custodian of the income to which
the Portfolio is properly entitled.
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2.6 Payment of Fund Monies. Upon receipt of Proper Instructions on behalf of
the applicable Portfolio, which may be continuing instructions when deemed
appropriate by the parties, the Custodian shall pay out monies of a
Portfolio in the following cases only:
1) Upon the purchase of domestic securities, options, futures contracts
or options on futures contracts for the account of the Portfolio but
only (a) against the delivery of such securities or evidence of title
to such options, futures contracts or options on futures contracts to
the Custodian (or any bank, banking firm or trust company doing
business in the United States or abroad which is qualified under the
1940 Act to act as a custodian and has been designated by the
Custodian as its agent for this purpose) registered in the name of the
Portfolio or in the name of a nominee of the Custodian referred to in
Section 2.3 hereof or in proper form for transfer; (b) in the case of
a purchase effected through a U.S. Securities System, in accordance
with the conditions set forth in Section 2.9 hereof; (c) in the case
of a purchase of Underlying Shares, in accordance with the conditions
set forth in Section 2.11 hereof; (d) in the case of repurchase
agreements entered into between the applicable Fund on behalf of the
Portfolio and the Custodian, or another bank, or a broker-dealer which
is a member of NASD, (i) against delivery of the securities either in
certificate form or through an entry crediting the Custodian's account
at the Federal Reserve Bank with such securities or (ii) against
delivery of the receipt evidencing purchase by the Portfolio of
securities owned by the Custodian along with written evidence of the
agreement by the Custodian to repurchase such securities from the
Portfolio or (e) for transfer to a time deposit account of the Fund in
any bank, whether domestic or foreign; such transfer may be effected
prior to receipt of a confirmation from a broker and/or the applicable
bank pursuant to Proper Instructions from the Fund as defined in
Article 9;
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 by the Portfolio as
set forth in Article 7 hereof;
4) For the payment of any expense or liability incurred by the Portfolio,
including but not limited to the following payments for the account of
the Portfolio: interest, taxes, management, accounting, transfer agent
and legal fees, and operating expenses of the Fund whether or not such
expenses are to be in whole or part capitalized or treated as deferred
expenses;
5) For the payment of any dividends on Shares of the Portfolio declared
pursuant to the Fund's articles of incorporation or organization and
by-laws or agreement or declaration of trust, as applicable, and
Prospectus (collectively, "GOVERNING DOCUMENTS");
6) For payment of the amount of dividends received in respect of
securities sold short;
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7) Upon the purchase of domestic securities including, without
limitation, repurchase agreement transactions involving delivery of
Portfolio monies to Repo Custodian(s), and prior to receipt of such
investments, as set forth in written Proper Instructions (such payment
in advance of delivery, along with delivery in advance of payment made
in accordance with Section 2.2(15), as applicable, shall each be
referred to herein as a "FREE TRADE"), provided that such Proper
Instructions shall also set forth (a) the amount of such payment and
(b) the person(s) to whom such payment is made; and
8) For delivery as initial or variation margin in connection with futures
or options on futures contracts entered into by a Fund on behalf of a
Portfolio; and
9) For any other purpose, but only upon receipt of Proper Instructions
from the Fund on behalf of the applicable Portfolio specifying (a) the
amount of such payment and (b) the person or persons to whom such
payment is to be made.
2.7 Liability for Payment in Advance of Receipt of Securities Purchased. Except
as specifically stated otherwise in this Contract, in any and every case
where payment for purchase of domestic securities for the account of a
Portfolio is made by the Custodian in advance of receipt of the securities
purchased in the absence of specific written instructions from the Fund on
behalf of such Portfolio to so pay in advance, the Custodian shall be
absolutely liable to the Fund for such securities to the same extent as if
the securities had been received by the Custodian.
2.8 Appointment of Domestic Sub-Custodians. The Custodian may at any time or
times in its discretion appoint (and may at any time remove) any other bank
or trust company which is itself qualified under the 1940 Act, to act as a
custodian, as its sub-custodian to carry out such custodial functions under
this Article 2 as the Custodian may from time to time direct; provided,
however, that the appointment of any domestic sub-custodian shall not
relieve the Custodian of or in any way abrogate its responsibilities or
liabilities hereunder. An Underlying Transfer Agent shall not be deemed an
agent or sub-custodian of the Custodian for purposes of this Section 2.8 or
any other provision of this Contract.
2.9 Deposit of Fund Assets in U.S. Securities Systems. The Custodian may
deposit and/or maintain securities owned by a Portfolio in a U.S.
Securities System in compliance with the conditions of Rule 17f-4 under the
1940 Act, as amended from time to time.
2.10 Segregated Account. The Custodian shall upon receipt of Proper Instructions
on behalf of each applicable Portfolio establish and maintain a segregated
account or accounts for and on behalf of each such Portfolio, into which
account or accounts may be transferred cash and/or securities, including
securities maintained in an account by the Custodian pursuant to Section
2.9 hereof, (i) in accordance with the provisions of any agreement among
the Fund on behalf of the Portfolio, the Custodian and a broker-dealer
registered under the Exchange Act and a member of the NASD (or any futures
commission merchant registered under the Commodity Exchange Act), relating
to compliance with the rules of The Options Clearing Corporation and of any
registered national securities exchange (or the Commodity Futures
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Trading Commission 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 or
releases of the Securities and Exchange Commission relating to the
maintenance of segregated accounts by registered investment companies and
(iv) for any other purpose but only upon receipt of and in accordance with
Proper Instructions from the Fund on behalf of the applicable Portfolio.
2.11 Deposit of Fund Assets with an Underlying Transfer Agent. Underlying Shares
beneficially owned by a Fund, on behalf of a Portfolio, shall be deposited
and/or maintained in an account or accounts maintained with an Underlying
Transfer Agent. The Custodian's responsibilities with respect thereto shall
be limited to the following:
1) Upon receipt of a confirmation or statement from an Underlying
Transfer Agent that such Underlying Transfer Agent is holding or
maintaining Underlying Shares in the name of the Custodian (or a
nominee of the Custodian) for the benefit of a Portfolio, the
Custodian shall identify by book-entry that such Underlying Shares are
being held by it as custodian for the benefit of the Portfolio.
2) In respect of the purchase of Underlying Shares for the account of a
Portfolio, upon receipt of Proper Instructions, the Custodian shall
pay out monies of such Portfolio as so directed, and record such
payment from the account of such Portfolio on the Custodian's books
and records.
3) In respect of the sale or redemption of Underlying Shares for the
account of a Portfolio, upon receipt of Proper Instructions, the
Custodian shall transfer such Underlying Shares as so directed, record
such transfer from the account of such Portfolio on the Custodian's
books and records and, upon the Custodian's receipt of the proceeds
therefor, record such payment for the account of such Portfolio on the
Custodian's books and records.
The Custodian shall not be liable to any Fund for any loss or damage to
such Fund or any Portfolio resulting from the maintenance of Underlying
Shares with an Underlying Transfer Agent except to the extent that such
loss or damage results directly from the fraud, negligence or willful
misconduct of the Custodian or any of its agents.
2.12 Ownership Certificates for Tax Purposes. The Custodian shall execute
ownership and other certificates and affidavits for all federal and state
tax purposes in connection with receipt of income or other payments with
respect to domestic securities of each Portfolio held by it and in
connection with transfers of securities.
2.13 Proxies. The Custodian shall, with respect to the domestic securities held
hereunder, cause to be promptly executed by the registered holder of such
securities, if the securities are
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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 Fund such
proxies, all proxy soliciting materials and all notices relating to such
securities.
2.14 Communications Relating to Portfolio Securities. Subject to the provisions
of Section 2.3, the Custodian shall transmit promptly to the Fund for each
Portfolio all written information (including, without limitation, pendency
of calls and maturities of domestic securities and expirations of rights in
connection therewith and notices of exercise of call and put options
written by the Fund on behalf of the Portfolio and the maturity of futures
contracts purchased or sold by the Portfolio) received by the Custodian
from issuers of the securities being held for the Portfolio. With respect
to tender or exchange offers, the Custodian shall transmit promptly to the
Portfolio all written information received by the Custodian from issuers of
the securities whose tender or exchange is sought and from the party (or
his agents) making the tender or exchange offer. The Custodian shall not be
liable for any untimely exercise of any tender, exchange or other right or
power in connection with domestic securities or other property of the
Portfolios at any time held by it unless (i) the Custodian is in actual
possession of such domestic securities or property and (ii) the Custodian
receives Proper Instructions with regard to the exercise of any such right
or power, and both (i) and (ii) occur at least three business days prior to
the date on which the Custodian is to take action to exercise such right or
power. The Custodian shall also transmit promptly to the Fund for each
applicable Portfolio all written information received by the Custodian
regarding any class action or other litigation in connection with Portfolio
securities or other assets issued in the United States and then held, or
previously held, during the term of this Contract by the Custodian for the
account of the Fund for such Portfolio, including, but not limited to,
opt-out notices and proof-of-claim forms. For avoidance of doubt, upon and
after the effective date of any termination of this Contract, with respect
to a Fund or its Portfolio(s), as may be applicable, the Custodian shall
have no responsibility to so transmit any information under this Section
2.14.
2.15 Investments in Loans. The provisions of this section shall apply with
respect to Loans (as defined below).
1) For purposes of this section, the following terms shall have the
following meanings:
"FINANCING DOCUMENTS" means promissory notes, mortgages, security
agreements, assignment agreements, settlement agreements,
participation agreements, leases and other instruments, certificates,
agreements and documents (or copies thereof) constituting, evidencing,
representing or otherwise relating to Loans.
"LOAN INFORMATION" for a Loan means (i) the Financing Documents, (ii)
the Payment Schedule, and (iii) such other information with respect to
the Loan and Financing Documents as the Custodian reasonably may
require in order to perform its services hereunder.
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"LOANS" means Portfolio assets in the nature of loans and
participations and other interests in loans in which a Fund on behalf
of the applicable Portfolio is a lender, including leases used as
financing transactions.
"OBLIGOR" means the party obligated under applicable Financing
Documents to pay a Loan.
"PAYMENT SCHEDULE" an amortization schedule of payments identifying
the amount and due dates of scheduled principal and interest payments
and related payment amount information.
2) Safekeeping and Delivery of Financing Documents. The Custodian shall
hold Financing Documents that the Fund delivers or causes to be
delivered to Custodian from time to time in its vault facility but
only pursuant to Proper Instructions from the Fund. Financing
Documents other than those described in the foregoing sentence shall
be held subject to the same security as other physical documents and
records that the Custodian holds for the Fund. The Custodian is not
obligated to require delivery of any Financing Documents or to require
delivery of originals of Financing Documents that may be delivered to
it as physical or electronic copies, or to inquire into the issuance
of any Financing Documents or the existence of originals thereof, the
Fund being solely responsible for determining the Financing Documents
to be delivered, the form in which they are to be delivered and the
method of acquiring and evidencing the ownership thereof. The
Custodian shall promptly release any Financing Documents to the Fund
or to any party specified to receive such Financing Documents pursuant
to Proper Instructions from the Fund. The Custodian shall not be
deemed to have or be charged with knowledge of the sale of any Loan
unless the Custodian shall have received Proper Instructions from the
Fund with respect thereto.
3) Responsibility for Financing Documents. The Custodian shall not be
obligated to examine the contents or determine the sufficiency of any
Financing Documents or to provide any certification with respect
thereto, whether such Financing Documents are received by the
Custodian as original documents, photocopies, electronic documents, by
facsimile or otherwise. The Custodian shall be entitled to assume the
genuineness, sufficiency and completeness of any Financing Documents
received, and the genuineness and due authority of any signature
appearing thereon. The Custodian shall not be obligated to examine
Financing Documents or make other inquiries to determine the
sufficiency, validity or genuineness of or title to any Financing
Documents or whether the assignment or transfer of the related Loan or
applicable interest or participation in the related Loan is effective
or enforceable. Without limiting the generality of the foregoing, it
is understood and agreed that the Company in its sole discretion may
cause delivery of a Loan to the Custodian to be evidenced solely by
delivery to the Custodian of an original or physical or electronic
copy of an assignment or transfer agreement or a confirmation or
certification stating that the Fund on
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behalf of the applicable Portfolio has acquired such Loan, with or
without delivery of any promissory note, participation certificate or
similar instrument.
4) Record Keeping. The Custodian shall (i) record and track Loan payments
on a daily basis; (ii) maintain detailed accrual information for each
Loan, including but not limited to interest payments and fee payments
received, receivables past due and principal payments received; (iii)
value each Loan in accordance with the Fund's Proper Instructions
utilizing the information sources designated in writing by the Fund;
and (iv) provide reports and information from the books and records it
maintains for the Fund in accordance with the Fund's Proper
Instructions.
5) Collection of Loan Payments. The Fund on behalf of the applicable
Portfolio shall cause the Custodian to be named as its nominee for
payment purposes under the Financing Documents or otherwise provide
for the direct payment of the Loan payments to the Custodian. The
Custodian shall credit to the Portfolio's account all payments with
respect to a Loan actually received by the Custodian and identified as
for the account of the Portfolio. All credits and payments credited to
the Portfolio shall be conditional upon clearance and actual receipt
by the Custodian of final payment thereon. If any Loan payments,
whether principal or interest, are not received by the Custodian
within three business days of the due date, the Custodian shall notify
the Fund of the Obligor's failure to make the Loan payment. The
Custodian shall have no obligations with respect to Loan payments and
the collection thereof other than the duty to notify the Fund as
provided in this paragraph. In no event shall the Custodian be under
any obligation to make any advance of its own funds in respect of any
Loan.
6) Other Responsibilities of the Custodian. The Custodian shall have no
responsibilities or duties whatsoever with respect to Loans or the
Financing Documents, except as expressly set forth herein. Without
limiting the generality of the foregoing, the Custodian shall have no
obligation to preserve any rights against prior parties or to exercise
any right or perform any obligation in connection with the Loans or
any Financing Documents (including, without limitation, no obligation
to take any action in respect of or upon receipt of any consent
solicitation, notice of default or similar notice received from any
bank agent or Obligor, except that the Custodian shall undertake
reasonable efforts to forward any such notice to the Fund). The
Custodian shall be entitled to rely upon the Loan Information provided
to it by the Fund and any information and notices received by the
Custodian from time to time from the related bank agent, Obligor or
similar party with respect to the related Loan, without any obligation
on the part of the Custodian independently to verify, investigate,
recalculate, update or otherwise confirm the accuracy or completeness
thereof. The Custodian shall have no liability for any delay or
failure on the part of the Fund in providing necessary Loan
Information to the Custodian, or for any inaccuracy therein or
incompleteness thereof. In case any question arises as to its duties
hereunder, the Custodian may request instructions from the Fund and
shall be entitled at all times
11
to refrain from taking any action unless it has received Proper
Instructions from the Fund.
3. Provisions Relating to Rules 17f-5 and 17f-7
3.1 Definitions. The following capitalized terms as used throughout this
Contract shall 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 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 U.S. Securities and Exchange
Commission (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 of the 1940 Act.
"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 of the 1940 Act.
3.2 The Custodian as Foreign Custody Manager.
1) Delegation to the Custodian as Foreign Custody Manager. Each Fund, by
resolution adopted by its Board, hereby delegates to the Custodian,
subject to Section (b) of Rule 17f-5, the responsibilities set forth
in this Section 3.2 with respect to Foreign Assets of the Portfolios
held outside the United States, and the Custodian hereby accepts such
delegation as Foreign Custody Manager with respect to the Portfolios.
2) Countries Covered. The Foreign Custody Manager shall be responsible
for performing the delegated responsibilities defined below only with
respect to the countries and custody arrangements for each such
country listed on Schedule A to
12
this Contract, which list of countries may be amended from time to
time by the Fund with the agreement of the Foreign Custody Manager.
The Foreign Custody Manager shall list on Schedule A the Eligible
Foreign Custodians selected by the Foreign Custody Manager to maintain
the assets of the Portfolios, which list of Eligible Foreign
Custodians may be amended from time to time in the sole discretion of
the Foreign Custody Manager. The Foreign Custody Manager will provide
amended versions of Schedule A in accordance with Section 3.2(5)
hereof.
Upon the receipt by the Foreign Custody Manager of Proper Instructions
to open an account or to place or maintain Foreign Assets in a country
listed on Schedule A, and the fulfillment by the Fund, on behalf of
the applicable 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 Contract by a
Fund shall be deemed to be a Proper Instruction to open an account, or
to place or maintain Foreign Assets, in each country listed on
Schedule A in which the Custodian has previously placed or currently
maintains Foreign Assets pursuant to the terms of the Contract.
Following the receipt of Proper Instructions directing the Foreign
Custody Manager to close the account of a Portfolio with the Eligible
Foreign Custodian selected by the Foreign Custody Manager in a
designated country, the delegation by the Board on behalf of the
Portfolios to the Custodian as Foreign Custody Manager for that
country shall be deemed to have been withdrawn and the Custodian shall
immediately cease to be the Foreign Custody Manager of the Portfolios
with respect to that country.
The Foreign Custody Manager may withdraw its acceptance of delegated
responsibilities with respect to a designated country upon written
notice to the Fund. Thirty days (or such longer period to which the
parties agree in writing) after receipt of any such notice by the
Fund, the Custodian shall have no further responsibility in its
capacity as Foreign Custody Manager to the Fund with respect to the
country as to which the Custodian's acceptance of delegation is
withdrawn.
3) Scope of Delegated Responsibilities:
a) Selection of Eligible Foreign Custodians. Subject to the
provisions of this Section 3.2, the Foreign Custody Manager may
place and maintain the Foreign Assets in the care of the Eligible
Foreign Custodian selected by the Foreign Custody Manager in each
country listed on Schedule A, as amended from time to time. In
performing its delegated responsibilities as Foreign Custody
Manager to place or maintain Foreign Assets with an Eligible
Foreign Custodian, the Foreign Custody Manager shall determine
that the Foreign Assets will be subject to reasonable care, based
on the standards applicable to custodians in the country in which
the Foreign Assets will be held by that Eligible Foreign
Custodian, after considering
13
all factors relevant to the safekeeping of such assets,
including, without limitation the factors specified in Rule
17f-5(c)(1).
b) Contracts With Eligible Foreign Custodians. The Foreign Custody
Manager shall determine that the contract governing the foreign
custody arrangements with each Eligible Foreign Custodian
selected by the Foreign Custody Manager will satisfy the
requirements of Rule 17f-5(c)(2).
c) Monitoring. In each case in which the Foreign Custody Manager
maintains Foreign Assets with an Eligible Foreign Custodian
selected by the Foreign Custody Manager, the Foreign Custody
Manager shall establish a system to monitor (i) the
appropriateness of maintaining the Foreign Assets with such
Eligible Foreign Custodian and (ii) the performance of 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.
4) Guidelines for the Exercise of Delegated Authority. For purposes of
this Section 3.2, the Board shall be deemed to have considered and
determined to accept such Country Risk as is incurred by placing and
maintaining the Foreign Assets in each country for which the Custodian
is serving as Foreign Custody Manager of the Portfolios.
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.
6) Standard of Care as Foreign Custody Manager of a Portfolio. In
performing the responsibilities delegated to it, the Foreign Custody
Manager agrees to exercise reasonable care, prudence and diligence
such as a person having responsibility for the safekeeping of assets
of management investment companies registered under the 1940 Act would
exercise.
14
7) Representations with Respect to Rule 17f-5. The Foreign Custody
Manager represents to the Fund that it is a U.S. Bank as defined in
section (a)(7) of Rule 17f-5. The Fund represents to the Custodian
that the Board has determined that it is reasonable for the Board to
rely on the Custodian to perform the responsibilities delegated
pursuant to this Contract to the Custodian as the Foreign Custody
Manager of the Portfolios.
8) Effective Date and Termination of the Custodian as Foreign Custody
Manager. The Board's delegation to the Custodian as Foreign Custody
Manager of the Portfolios shall be effective as of the date hereof and
shall remain in effect until terminated at any time, without penalty,
by written notice from the terminating party to the non-terminating
party. Termination will become effective thirty (30) days after
receipt by the non-terminating party of such notice. The provisions of
Section 3.2(2) hereof shall govern the delegation to and termination
of the Custodian as Foreign Custody Manager of the Portfolios with
respect to designated countries.
3.3 Eligible Securities Depositories.
1) Analysis and Monitoring. The Custodian shall (a) provide the Fund (or
its duly-authorized investment manager or investment adviser) with an
analysis of the custody risks associated with maintaining assets with
the Eligible Securities Depositories set forth on Schedule B hereto in
accordance with section (a)(1)(i)(A) of Rule 17f-7, and (b) monitor
such risks on a continuing basis, and promptly notify the Fund (or its
duly-authorized investment manager or investment adviser) of any
material change in such risks, in accordance with section (a)(1)(i)(B)
of Rule 17f-7.
2) Standard of Care. The Custodian agrees to exercise reasonable care,
prudence and diligence in performing the duties set forth in Section
3.3(1).
4. Duties of the Custodian with Respect to Property of the Portfolios Held
Outside the United States
4.1 Definitions. Capitalized terms in this Article 4 shall have the following
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.
4.2 Holding Securities. The Custodian shall identify on its books as belonging
to the Portfolios the foreign securities held by each Foreign Sub-Custodian
or Foreign Securities System. The Custodian may hold foreign securities for
all of its customers, including the Portfolios, with any Foreign
Sub-Custodian in an account that is identified
15
as belonging to the Custodian for the benefit of its customers, provided
however, that (i) the records of the Custodian with respect to foreign
securities of the Portfolios which are maintained in such account shall
identify those securities as belonging to the Portfolios and (ii), to the
extent permitted and customary in the market in which the account is
maintained, the Custodian shall require that securities so held by the
Foreign Sub-Custodian be held separately from any assets of such Foreign
Sub-Custodian or of other customers of such Foreign Sub-Custodian.
4.3 Foreign Securities Systems. Foreign securities shall be maintained in a
Foreign Securities System in a designated country through arrangements
implemented by the Custodian or a Foreign Sub-Custodian, as applicable, in
such country.
4.4 Transactions in Foreign Custody Account.
1) Delivery of Foreign Assets. The Custodian or a Foreign Sub-Custodian
shall release and deliver foreign securities of the Portfolios held by
the Custodian or such Foreign Sub-Custodian, or in a Foreign
Securities System account, only upon receipt of Proper Instructions,
which may be continuing instructions when deemed appropriate by the
parties, and only in the following cases:
a) 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;
b) in connection with any repurchase agreement related to foreign
securities;
c) to the depository agent in connection with tender or other
similar offers for foreign securities of the Portfolios;
d) to the issuer thereof or its agent when such foreign securities
are called, redeemed, retired or otherwise become payable;
e) to the issuer thereof, or its agent, for transfer into the name
of the Custodian (or the name of the respective Foreign
Sub-Custodian or of any nominee of the Custodian or such Foreign
Sub-Custodian) or for exchange for a different number of bonds,
certificates or other evidence representing the same aggregate
face amount or number of units;
f) 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 foreign securities prior to
16
receiving payment for such foreign securities except as may arise
from the Foreign Sub-Custodian's own negligence or willful
misconduct;
g) 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;
h) 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;
i) for delivery as security in connection with any borrowing by a
Fund on behalf of Portfolios requiring a pledge of assets by the
Fund on behalf of such Portfolios;
j) in connection with trading in options and futures contracts,
including delivery as original margin and variation margin;
k) in connection with the lending of foreign securities; and
(l) Upon the sale or other delivery of such foreign securities
(including, without limitation, to one or more Special
Sub-Custodians or Repo Custodians) as a Free Trade, provided that
applicable Proper Instructions shall set forth (A) the foreign
securities to be delivered and (B) the person or persons to whom
delivery shall be made;
m) 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.
2) Payment of Portfolio Monies. Upon receipt of Proper Instructions,
which may be continuing instructions when deemed appropriate by the
parties, the Custodian shall pay out, or direct the respective Foreign
Sub-Custodian or the respective Foreign Securities System to pay out,
monies of a Portfolio in the following cases only:
a) 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;
17
b) in connection with the conversion, exchange or surrender of
foreign securities of the Portfolio;
c) for the payment of any expense or liability of the Portfolio,
including but not limited to the following payments: interest,
taxes, investment advisory fees, transfer agency fees, fees under
this Contract, legal fees, accounting fees, and other operating
expenses;
d) for the purchase or sale of foreign exchange or foreign exchange
contracts for the Portfolio, including transactions executed with
or through the Custodian or its Foreign Sub-Custodians;
e) in connection with trading in options and futures contracts,
including delivery as original margin and variation margin;
f) for payment of part or all of the dividends received in respect
of securities sold short;
g) in connection with the borrowing or lending of foreign
securities; and
(h) Upon the purchase of foreign investments including, without
limitation, repurchase agreement transactions involving delivery
of Portfolio monies to Repo Custodian(s), as a Free Trade,
provided that applicable Proper Instructions shall set forth (A)
the amount of such payment and (B) the person or persons to whom
payment shall be made;
i) 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.
3) Market Conditions. Notwithstanding any provision of this Contract to
the contrary, settlement and payment for Foreign Assets received for
the account of the Portfolios and delivery of Foreign Assets
maintained for the account of the Portfolios may be effected in
accordance with the customary established securities trading or
processing practices and procedures in the country or market in which
the transaction occurs, including, without limitation, delivering
Foreign Assets to the purchaser thereof or to a dealer therefor (or an
agent for such purchaser or dealer) with the expectation of receiving
later payment for such Foreign Assets from such purchaser or dealer.
The Custodian shall provide to the Boards the information with respect
to custody and settlement practices in countries in which the
Custodian employs a Foreign Sub-Custodian described on Schedule C
hereto at the time or times set forth on such Schedule. The Custodian
may revise Schedule C from time to time, provided that no such
revision shall result in the Boards being provided with substantively
less information than had been previously provided hereunder.
18
4.5 Registration of Foreign Securities. The foreign securities maintained in
the custody of a Foreign Sub-Custodian (other than bearer securities) shall
be registered in the name of the applicable Portfolio or in the name of the
Custodian or in the name of any Foreign Sub-Custodian or in the name of any
nominee of the foregoing, and the applicable Fund on behalf of such
Portfolio agrees to hold any such nominee harmless from any liability as a
holder of record of such foreign securities. The Custodian or a Foreign
Sub-Custodian shall not be obligated to accept securities on behalf of a
Portfolio under the terms of this Contract unless the form of such
securities and the manner in which they are delivered are in accordance
with reasonable market practice.
4.6 Bank Accounts. The Custodian shall identify on its books as belonging to
the Fund cash (including cash denominated in foreign currencies) deposited
with the Custodian. Where the Custodian is unable to maintain, or market
practice does not facilitate the maintenance of, cash on the books of the
Custodian, a bank account or bank accounts shall be opened and maintained
outside the United States on behalf of a Portfolio with a Foreign
Sub-Custodian. All accounts referred to in this Section shall be subject
only to draft or order by the Custodian (or, if applicable, such Foreign
Sub-Custodian) acting pursuant to the terms of this Contract to hold cash
received by or from or for the account of the Portfolio. Cash maintained on
the books of the Custodian (including its branches, subsidiaries and
affiliates), regardless of currency denomination, is maintained in bank
accounts established under, and subject to the laws of, The Commonwealth of
Massachusetts.
4.7 Collection of Income. The Custodian shall use reasonable commercial efforts
to collect all income and other payments with respect to the Foreign Assets
held hereunder to which the Portfolios shall be entitled. In the event that
extraordinary measures are required to collect such income, the Fund and
the Custodian shall consult as to such measures and as to the compensation
and expenses of the Custodian relating to such measures. The Custodian
shall credit income to the applicable Portfolio as such income is received
or in accordance with Custodian's then current payable date income
schedule. Any credit to the Portfolio in advance of receipt may be reversed
when the Custodian determines that payment will not occur in due course and
the Portfolio may be charged at the Custodian's applicable rate for time
credited. Income on securities loaned other than from the Custodian's
securities lending program shall be credited as received.
4.8 Shareholder Rights. With respect to the foreign securities held pursuant to
this Article 4, the Custodian will use reasonable commercial efforts to
facilitate the exercise of voting and other shareholder rights, subject
always to the laws, regulations and practical constraints that may exist in
the country where such securities are issued. The Fund acknowledges that
local conditions, including lack of regulation, onerous procedural
obligations, lack of notice and other factors may have the effect of
severely limiting the ability of the Fund to exercise shareholder rights.
4.9 Communications Relating to Foreign Securities. The Custodian shall transmit
promptly to the Fund written information with respect to materials received
by the Custodian via
19
the Foreign Sub-Custodians from issuers of the foreign securities being
held for the account of the Portfolios (including, without limitation,
pendency of calls and maturities of foreign securities and expirations of
rights in connection therewith). With respect to tender or exchange offers,
the Custodian shall transmit promptly to the Fund written information with
respect to materials so received by the Custodian from issuers of the
foreign securities whose tender or exchange is sought or from the party (or
its agents) making the tender or exchange offer. The Custodian shall not be
liable for any untimely exercise of any tender, exchange or other right or
power in connection with foreign securities or other property of the
Portfolios at any time held by it unless (i) the Custodian or the
respective Foreign Sub-Custodian is in actual possession of such foreign
securities or property and (ii) the Custodian receives Proper Instructions
with regard to the exercise of any such right or power, and both (i) and
(ii) occur at least three business days prior to the date on which the
Custodian is to take action to exercise such right or power. The Custodian
shall also transmit promptly to the applicable Fund all written information
received by the Custodian via the Foreign Sub-Custodians from issuers of
the foreign securities being held for the account of the Portfolios
regarding any class action or other litigation in connection with Portfolio
foreign securities or other assets issued outside the United States and
then held, or previously held, during the term of this Contract by the
Custodian via a Foreign Sub-Custodian for the account of the Fund for such
Portfolio, including, but not limited to, opt-out notices and
proof-of-claim forms. For avoidance of doubt, upon and after the effective
date of any termination of this Contract, with respect to a Fund or its
Portfolio(s), as may be applicable, the Custodian shall have no
responsibility to so transmit any information under this Section 4.9.
4.10 Liability of Foreign Sub-Custodians. Each agreement pursuant to which the
Custodian employs a Foreign Sub-Custodian shall, to the extent possible,
require the Foreign Sub-Custodian to exercise reasonable care in the
performance of its duties, and to indemnify, and hold harmless, the
Custodian from and against any loss, damage, cost, expense, liability or
claim arising out of or in connection with the Foreign Sub-Custodian's
performance of such obligations. At a Fund's election, the Portfolios shall
be entitled to be subrogated to the rights of the Custodian with respect to
any claims against a Foreign Sub-Custodian as a consequence of any such
loss, damage, cost, expense, liability or claim if and to the extent that
the Portfolios have not been made whole for any such loss, damage, cost,
expense, liability or claim.
4.11 Liability of Custodian. Except as may arise from the Custodian's own
negligence or willful misconduct or the negligence or willful misconduct of
a Sub-Custodian, the Custodian shall be without liability to the Fund for
any loss, liability, claim or expense resulting from or caused by anything
which is part of Country Risk.
The Custodian shall be liable for the acts or omissions of a Foreign
Sub-Custodian to the same extent as set forth with respect to
sub-custodians generally in the Contract and, regardless of whether assets
are maintained in the custody of a Foreign Sub-Custodian or a Foreign
Securities System, the Custodian shall not be liable for any loss, damage,
cost, expense, liability or claim resulting from nationalization,
expropriation, currency
20
restrictions, or acts of war or terrorism, or any other loss where the
Foreign Sub-Custodian has otherwise acted with reasonable care.
5. Contractual Settlement Services (Purchase / Sales)
5.1 The Custodian shall, in accordance with the terms set out in this section,
debit or credit the appropriate cash account of each Portfolio in
connection with (i) the purchase of securities for such Portfolio, and (ii)
proceeds of the sale of securities held on behalf of such Portfolio, on a
contractual settlement basis.
5.2 The services described above (the "CONTRACTUAL SETTLEMENT SERVICES") shall
be provided for such instruments and in such markets as the Custodian may
advise from time to time. The Custodian may terminate or suspend any part
of the provision of the Contractual Settlement Services under this Contract
at its sole discretion immediately upon notice to the applicable Fund on
behalf of each Portfolio, including, without limitation, in the event of
force majeure events affecting settlement or any material disorder in
applicable securities markets.
5.3 The consideration payable in connection with a purchase transaction shall
be debited from the appropriate cash account of the applicable Portfolio as
of the time and date that monies would ordinarily be required to settle
such transaction in the applicable market. The Custodian shall promptly
recredit such amount at the time that the Portfolio or the Fund notifies
the Custodian by Proper Instruction that such transaction has been
canceled.
5.4 With respect to the settlement of a sale of securities, a provisional
credit of an amount equal to the net sale price for the transaction (the
"SETTLEMENT AMOUNT") shall be made to the account of the applicable
Portfolio as if the Settlement Amount had been received as of the close of
business on the date that monies would ordinarily be available in good
funds in the applicable market. Such provisional credit will be made
conditional upon (i) the Custodian's having received Proper Instructions
with respect to, or reasonable notice of, the transaction, as applicable;
and (ii) the Custodian or its agent's having possession of the asset(s)
(which shall exclude assets subject to any third party lending arrangement
entered into by a Portfolio) associated with the transaction in good
deliverable form and not being aware of any facts which would lead them to
believe that the transaction will not settle in the time period ordinarily
applicable to such transactions in the applicable market.
5.5 Simultaneously with the making of such provisional credit, the Fund on
behalf of the applicable Portfolio agrees that the Custodian shall have,
and hereby grants to the Custodian, a security interest in any property at
any time held for the account of the Portfolio to the full extent of the
credited amount, and each Portfolio hereby pledges, assigns and grants to
the Custodian a continuing security interest and a lien on any and all such
property under the Custodian's possession, in accordance with the terms of
Article 17 of this Contract. In the event that the applicable Portfolio
fails to promptly repay any
21
provisional credit, the Custodian shall have all of the rights and remedies
of a secured party under the Uniform Commercial Code of The Commonwealth of
Massachusetts.
5.6 The Custodian shall have the right to reverse any provisional credit or
debit given in connection with the Contractual Settlement Services at any
time when the Custodian believes, in its reasonable judgment, that such
transaction will not settle in accordance with its terms or amounts due
pursuant thereto will not be collectable or where the Custodian has not
been provided Proper Instructions with respect thereto, as applicable, and
the Portfolio shall be responsible for any costs or liabilities resulting
from such reversal. Upon such reversal, a sum equal to the credited or
debited amount shall become immediately payable by the Portfolio to the
Custodian and may be debited from any cash account held for benefit of the
Portfolio.
5.7 In the event that the Custodian is unable to debit an account in accordance
with Section 5.6 above of the Portfolio, and the Portfolio fails to pay any
amount due to the Custodian at the time such amount becomes payable in
accordance with Section 5.6 this Contract, (i) the Custodian may charge the
Portfolio for reasonable costs and expenses associated with providing the
provisional credit, including without limitation the reasonable cost of
funds associated therewith, (ii) the amount of any accrued dividends,
interest and other distributions with respect to assets associated with
such transaction may be set off against the credited amount, (iii) the
provisional credit and any such costs and expenses shall be considered an
advance of cash for purposes of this Contract and (iv) the Custodian shall
have the right to setoff against any property and the discretion to sell,
exchange, convey, transfer or otherwise dispose of any property at any time
held for the account of the Portfolio to the full extent necessary for the
Custodian to make itself whole, provided, however, that the Custodian shall
notify the applicable Fund promptly following any such disposition of any
property of a Portfolio, state the reason for such disposition and list the
property disposed of.
6. Special Sub-Custodians
Upon receipt of Proper Instructions, the Custodian shall, on behalf of one
or more Portfolios, appoint one or more Special Sub-Custodians for the purposes
of effecting such transactions as may be designated in such Proper Instructions
or to serve as a Foreign Sub-Custodian in such markets as may be designated in
such Proper Instructions. In connection with the appointment of any Special
Sub-Custodian, and in accordance with Proper Instructions, the Custodian shall
enter into a sub-custodian agreement with the Fund and the Special Sub-Custodian
in form and substance acceptable to the Custodian and approved by such Fund,
provided that such agreement shall in all events comply with the provisions of
the 1940 Act and the rules and regulations thereunder and the terms and
provisions of this Contract. At a Fund's election, the Portfolios shall be
entitled to be subrogated to the rights of the Custodian with respect to any
claims against a Special Sub-Custodian as a consequence of any 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.
22
7. Payments for Sales or Repurchases or Redemptions of Shares of the Fund
The Custodian shall receive from the distributor for the Shares or from the
Transfer Agent of the Fund and deposit into the account of the appropriate
Portfolio such payments as are received for Shares of that Portfolio issued or
sold from time to time by the applicable Fund. The Custodian 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, the Custodian shall,
upon receipt of instructions from the Transfer Agent, make funds available for
payment to holders of Shares who have delivered to the Transfer Agent a request
for redemption or repurchase of their Shares. In connection with the redemption
or repurchase of Shares of a Portfolio, the Custodian is authorized upon receipt
of instructions from the Transfer Agent to wire funds to or through a commercial
bank designated by the redeeming shareholders.
8. Tax Law
The Custodian shall have no responsibility or liability for any obligations
now or hereafter imposed on the Fund, the Portfolios or the Custodian as
custodian of the Portfolios by the tax law of the United States or of any state
or political subdivision thereof. It shall be the responsibility of the Fund to
notify the Custodian of the obligations imposed on the Fund with respect to the
Portfolios or the Custodian as custodian of the Portfolios by the tax law of
jurisdictions other than those mentioned in the above sentence, including
responsibility for withholding and other taxes, assessments or other
governmental charges, certifications and governmental reporting. The sole
responsibility of the Custodian with regard to such tax law shall be to use
reasonable efforts to assist the Fund with respect to any claim for exemption or
refund under the tax law of jurisdictions for which the Fund has provided such
information.
9. Proper Instructions
"PROPER INSTRUCTIONS," which may also be standing instructions, as such
term is used throughout this Contract shall mean instructions received by the
Custodian from a Fund, a Fund's duly authorized transfer agent, investment
manager or investment adviser, or a person or entity duly authorized by either
of them. Such instructions may be in writing signed by the authorized person or
persons or may be in a tested communication or in a communication utilizing
access codes effected between electro-mechanical or electronic devices or may be
by such other means and utilizing such intermediary systems and utilities as may
be agreed from time to time by the Custodian and the person(s) or entity giving
such instruction, provided that the Fund has followed any security procedures
agreed to from time to time by the applicable Fund and the Custodian including,
but not limited to, the security procedures selected by the Fund via the form of
Funds Transfer Addendum hereto. Oral instructions will be considered Proper
Instructions if the Custodian reasonably believes them to have been given by a
person authorized to provide such instructions with respect to the transaction
involved; the Fund shall cause all oral instructions to be confirmed in writing.
For purposes of this Section, Proper Instructions shall include instructions
received by the Custodian pursuant to any multi-party agreement which requires a
segregated asset account in accordance with Section 2.10 hereof.
23
Concurrently with the execution of this Contract, and from time to time
thereafter, as appropriate, each Fund shall deliver to the Custodian, duly
certified by such Fund's Treasurer or Assistant Treasurer, a certificate setting
forth the names, titles, signatures and scope of authority of all persons
authorized to give Proper Instructions or any other notice, request, direction,
instruction, certificate or instrument on behalf of the Fund. Such certificate
may be accepted and relied upon by the Custodian as conclusive evidence of the
facts set forth therein and shall be considered to be in full force and effect
until receipt by the Custodian of a similar certificate to the contrary.
10. Actions Permitted without Express Authority
The Custodian may in its discretion, without express authority from the
applicable 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
Contract, 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 applicable Board.
11. Evidence of Authority
The Custodian shall be protected in acting upon any instructions, notice,
request, consent, certificate or other instrument or paper reasonably believed
by it to be genuine and to have been properly executed by or on behalf of the
applicable Fund. The Custodian may receive and accept a copy of a resolution
certified by the Secretary or an Assistant Secretary of any Fund 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 applicable Board
as described in such resolution, and such resolution may be considered as in
full force and effect until receipt by the Custodian of written notice to the
contrary.
12. Duties of Custodian with Respect to the Books of Account and Calculation of
Net Asset Value and Net Income
The Custodian shall cooperate with and supply necessary information to the
entity or entities appointed by the applicable Board to keep the books of
account of each Portfolio and/or compute the net asset value per share of the
outstanding Shares of each Portfolio.
24
13. Records
The Custodian shall with respect to each Portfolio create and maintain all
records relating to its activities and obligations under this Contract in such
manner as will meet the obligations of the Fund under the applicable provisions
of the 1940 Act, with particular attention to Section 31 thereof and Rules 31a-1
and 31a-2 thereunder. All such records shall be the property of the Fund and
shall at all times during the regular business hours of the Custodian be open
for inspection by duly authorized officers, employees or agents of the Fund and
employees and agents of the SEC. The Custodian shall, at the Fund's request,
supply the Fund with a tabulation of securities owned by each Portfolio and held
by the Custodian and shall, when requested to do so by the Fund and for such
compensation as shall be agreed upon between the Fund and the Custodian, include
certificate numbers in such tabulations.
Each Fund acknowledges and agrees that, with respect to investments maintained
with an Underlying Transfer Agent, the Underlying Transfer Agent is the sole
source of information on the number of shares of a fund held by it on behalf of
a Portfolio and that the Custodian has the right to rely on holdings information
furnished by the Underlying Transfer Agent to the Custodian in performing its
duties under this Contract, including without limitation, the duties set forth
in this Article 13; provided, however, that the Custodian shall be obligated to
reconcile information as to purchases and sales of Underlying Shares contained
in trade instructions and confirmations received by the Custodian and to report
promptly any discrepancies to the Underlying Transfer Agent. Each Fund
acknowledges that, with respect to Portfolio property released and delivered
pursuant to Section 2.2(15), or purchased pursuant to Section 2.6(7) hereof, the
Custodian is authorized and instructed to rely upon information provided to it
by the Fund, the Fund's counterparty(ies), or the agents of either of them in
performing its duties under this Contract, including without limitation, the
duties set forth in this Article 13.
14. Intentionally omitted.
15. Reports to Fund by Independent Public Accountants
The Custodian shall provide the applicable 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 (either, a
"SECURITIES SYSTEM"), relating to the services provided by the Custodian under
this Contract; 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.
16. Compensation of Custodian
The Custodian shall be entitled to reasonable compensation for its services
and expenses as Custodian, as agreed upon in writing from time to time between
each Fund on behalf of each applicable Portfolio and the Custodian.
25
17. Responsibility of Custodian
So long as and to the extent that it is in the exercise of reasonable care,
the Custodian shall not be responsible for the title, validity or genuineness of
any property or evidence of title thereto received by it or delivered by it
pursuant to this Contract and shall be held harmless in acting upon any notice,
request, consent, certificate or other instrument reasonably believed by it to
be genuine and to be signed by the proper party or parties, including any
futures commission merchant acting pursuant to the terms of a three-party
futures or options agreement. The Custodian shall be held to the exercise of
reasonable care in carrying out the provisions of this Contract, but shall be
kept indemnified by each Fund and shall be without liability to any 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. The Custodian shall be
without liability to any Fund or Portfolio for any loss, liability, claim or
expense resulting from or caused by anything which is part of Country Risk,
including without limitation nationalization, expropriation, currency
restrictions, or acts of war, revolution, riots or terrorism.
Except as may arise from the Custodian's own negligence or willful
misconduct or the negligence or willful misconduct of a sub-custodian or agent,
the Custodian shall be without liability to any Fund for any loss, liability,
claim or expense resulting from or caused by; (i) events or circumstances beyond
the reasonable control of the Custodian or any sub-custodian or Securities
System or any agent or nominee of any of the foregoing, including, without
limitation, nationalization or expropriation, imposition of currency controls or
restrictions, 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, acts
of war or terrorism, riots, revolutions, work stoppages, natural disasters or
other similar events or acts; (ii) errors by any Fund or its investment manager
or investment adviser in their instructions to the Custodian provided such
instructions have been in accordance with this Contract; (iii) the insolvency of
or acts or omissions by a Securities System; (iv) any delay or failure of any
broker, agent or intermediary, central bank or other commercially prevalent
payment or clearing system to deliver to the Custodian's sub-custodian or agent
securities purchased or in the remittance or payment made in connection with
securities sold; (v) any delay or failure of any company, corporation, or other
body in charge of registering or transferring securities in the name of the
Custodian, any Fund, the Custodian's sub-custodians, nominees or agents or any
consequential losses arising out of such delay or failure to transfer such
securities including non-receipt of bonus, dividends and rights and other
accretions or benefits; (vi) delays or inability to perform its duties due to
any disorder in market infrastructure with respect to any particular security or
Securities System; (vii) any act or omission of a Special Sub-Custodian
including, without limitation, reliance on reports prepared by a Special
Sub-Custodian; and (viii) any provision of any present or future law or
regulation or order of the United States of America, or any state thereof, or
any other country, or political subdivision thereof or of any court of competent
jurisdiction.
The Custodian shall be liable for the acts or omissions of a Foreign
Sub-Custodian to the same extent as set forth with respect to sub-custodians
generally in this Contract.
26
If a Fund on behalf of a Portfolio requires the Custodian to take any
action with respect to securities, which action involves the payment of money or
which action may, in the opinion of the Custodian, result in the Custodian or
its nominee assigned to the Fund or the Portfolio being liable for the payment
of money or incurring liability of some other form, such Fund on behalf of the
Portfolio, as a prerequisite to requiring the Custodian to take such action,
shall provide indemnity to the Custodian in an amount and form satisfactory to
it.
If a Fund requires the Custodian, its affiliates, subsidiaries or agents,
to advance cash or securities for any purpose (including but not limited to
securities settlements, foreign exchange contracts and assumed settlement) or in
the event that the Custodian or its nominee shall incur or be assessed any
taxes, charges, expenses, assessments, claims or liabilities in connection with
the performance of this Contract, except such as may arise from its or its
nominee's own negligent action, negligent failure to act or willful misconduct,
any property at any time held for the account of the applicable Portfolio shall
be security therefor and should the Fund fail to repay the Custodian promptly,
the Custodian shall be entitled to utilize available cash and to dispose of such
Portfolio's assets to the extent necessary to obtain reimbursement.
Except as may arise from the Custodian's own negligence or willful
misconduct, each Fund shall indemnify and hold the Custodian harmless from and
against any and all costs, expenses, losses, damages, charges, reasonable
counsel fees, payments and liabilities which may be asserted against the
Custodian (a) acting in accordance with any Proper Instruction including,
without limitation, any Proper Instruction with respect to Free Trades
including, but not limited to, cost, expense, loss, damage, liability, tax,
charge, assessment or claim resulting from (i) the failure of the applicable
Portfolio to receive income with respect to purchased investments, (ii) the
failure of the applicable Portfolio to recover amounts invested on maturity of
purchased investments, (iii) the failure of the Custodian to respond to or be
aware of notices or other corporate communications with respect to purchased
investments, or (iv) the Custodian's reliance upon information provided by the
applicable Fund, the Fund's counterparty(ies) or the agents of either of them
with respect to Fund property released, delivered or purchased pursuant to
either of Section 2.2(15) or Section 2.6(7) hereof, or (b) for the acts or
omissions of any Special Sub-Custodian.
In no event shall the Custodian be liable for indirect, special or
consequential damages.
18. Effective Period, Termination and Amendment
1) This Contract shall become effective as of its execution, shall continue in
full force and effect until terminated as hereinafter provided, and may be
amended at any time by mutual written agreement of the parties hereto.
2) At any time following the effective date of this Contract:
(i) the Funds may at any time by action of the applicable Board(s) of
Directors immediately terminate this Contract in the event of the
appointment of a conservator or receiver for the Custodian by an
appropriate regulatory agency or court of competent jurisdiction;
and
27
(ii) any party to this Contract may at any time terminate this
Contract upon one hundred eighty (180) days prior written notice
to the other party or parties.
3) Notwithstanding the foregoing, no Fund shall terminate this Contract in
contravention of any applicable federal or state regulations, or any
provision of such Fund's Governing Documents.
4) Any termination of this Contract may be with respect to any one particular
Fund or Portfolio and, in such event, shall in no way affect the rights and
duties under this Contract with respect to any other Fund or Portfolio.
5) Upon termination of the Contract for any reason, the applicable Fund on
behalf of each applicable Portfolio shall pay to the Custodian such
compensation as may be due as of the date of such termination and shall
likewise reimburse the Custodian for its costs, expenses and disbursements
associated with its provision of services hereunder to such Portfolio.
19. Successor Custodian
If a successor custodian for one or more of the Portfolios shall be
appointed by the applicable Board, the Custodian shall, upon termination and
receipt of Proper Instructions, deliver to such successor custodian at the
office of the Custodian, duly endorsed and in the form for transfer, all
securities of each applicable Portfolio then held by it hereunder and shall
transfer to an account of the successor custodian all of the securities of each
such Portfolio held in a Securities System or at an Underlying Transfer Agent.
If no such successor custodian shall be appointed, the Custodian shall, in
like manner, upon receipt of Proper Instructions, deliver at the office of the
Custodian and transfer such securities, funds and other properties in accordance
with such Proper Instructions.
In the event that no Proper Instructions designating a successor custodian
or alternative arrangements shall have been delivered to the Custodian on or
before the date when such termination shall become effective, then the Custodian
shall have the right to deliver to a bank or trust company, which is a "bank" as
defined in the 1940 Act, doing business in Boston, Massachusetts or New York,
New York, of its own selection, having an aggregate capital, surplus, and
undivided profits, as shown by its last published report, of not less than
$25,000,000, all securities, funds and other properties held by the Custodian on
behalf of each applicable Portfolio and all instruments held by the Custodian
relative thereto and all other property held by it under this Contract on behalf
of each applicable Portfolio and to transfer to an account of such successor
custodian all of the securities of each such Portfolio held in any Securities
System or at an Underlying Transfer Agent. Thereafter, such bank or trust
company shall be the successor of the Custodian under this Contract.
In the event that securities, funds and other properties remain in the
possession of the Custodian after the date of termination hereof owing to
failure of any Fund to provide Proper Instructions, the Custodian shall be
entitled to fair compensation for its services during such period
28
as the Custodian retains possession of such securities, funds and other
properties and the provisions of this Contract relating to the duties and
obligations of the Custodian shall remain in full force and effect.
20. Interpretive and Additional Provisions
In connection with the operation of this Contract, the Custodian and each
Fund on behalf of each of the Portfolios, may from time to time agree on such
provisions interpretive of or in addition to the provisions of this Contract as
may in their joint opinion be consistent with the general tenor of this
Contract; provided that no such interpretive or additional provisions shall
contravene any applicable federal or state regulations or any provision of a
Fund's Governing Documents. Any agreement as to interpretive or additional
provisions shall be in a writing signed by the Custodian and each applicable
Fund and shall be annexed hereto. Unless such writing specifically provides
otherwise, no interpretive or additional provisions made as provided in this
sub-section shall be deemed to be an amendment of this Contract.
21. Additional Funds and Portfolios
21.1 Additional Funds. In the event that any registered investment company in
addition to those executing this Contract on the signature page hereto
desires to have the Custodian render services as custodian under the terms
hereof, it shall so notify the Custodian in writing, and if the Custodian
agrees to provide such services, such registered investment company shall
become a Fund hereunder and be bound by all terms and conditions and
provisions hereof including, without limitation, the representations and
warranties set forth in Article 22 below. The Custodian acknowledges that
it will agree to render services as custodian to any additional registered
investment companies that are determined to be acceptable pursuant to the
Custodian's then-current new business acceptance policies and procedures,
and that it will promptly notify any entity that is determined to be
unacceptable.
21.2 Additional Portfolios. In the event that any Fund establishes one or more
series of Shares in addition to those set forth on Appendix A hereto with
respect to which it desires to have the Custodian render services as
custodian under the terms hereof, it shall so notify the Custodian in
writing, and if the Custodian agrees to provide such services, such series
of Shares shall become a Portfolio hereunder. The Custodian acknowledges
that that it will agree to render services as custodian to any additional
portfolios provided that (a) the types of assets held by such portfolios,
and (b) the services to be provided by the Custodian hereunder, are
substantially the same as the types of assets and services relating to the
then existing Portfolios and Funds. If the conditions of the preceding
sentence do not apply to an additional portfolio, the parties agree to
negotiate in good faith to reach mutually acceptable terms relating to the
services, if any, to be provided by the Custodian and the compensation, if
any, to be paid to the Custodian with regard to such services.
22. Representations and Warranties.
29
Each of the Custodian and the Funds hereby represents and warrants to the
other parties hereto that (a) it is duly incorporated or organized and is
validly existing in good standing in its jurisdiction of incorporation or
organization; (b) it has the requisite power and authority under applicable law
and its Governing Documents to enter into and perform this Contract; (c) all
requisite proceedings have been taken to authorize it to enter into and perform
this Contract; (d) this Contract constitutes its legal, valid, binding and
enforceable agreement; and (e) its entrance into this Contract shall not cause a
material breach or be in material conflict with any other agreement or
obligation of such party or any law or regulation applicable to it.
23. Massachusetts Law to Apply
This Contract shall be construed and the provisions thereof interpreted
under and in accordance with laws of The Commonwealth of Massachusetts.
24. Prior Contracts
This Contract supersedes and terminates, as of the date hereof, all prior
contracts between each Fund on behalf of each of the Portfolios and the
Custodian relating to the custody of such Fund's assets.
25. Reproduction of Documents
This Contract and all schedules, exhibits, addenda, 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.
26. Remote Access Services Addendum.
The Custodian and each Fund agree to be bound by the terms of the Remote
Access Services Addendum attached hereto.
27. Notices.
Any Proper Instruction, notice, communication or other instrument required
to be given hereunder may be (a) delivered in person to the offices of the
parties as set forth herein during normal business hours; or (b) effected
directly between electro-mechanical or electronic devices as provided in Article
9 hereof; or (c) delivered by prepaid certified mail (in which case it shall be
deemed to have been served on the delivery date specified on the return
receipt); or (d) delivered by telecopy (in which case it shall be deemed to have
been served on the business day after the receipt thereof). Each party hereto
shall designate from time to time the person(s) and address(es) for Proper
Instructions and other communications related to the daily operations. Proper
Instructions and other communications related to this Contract (including, but
not limited
30
to termination, breach, or default) shall be delivered at the following
addresses or such other addresses as may be notified by any party from time to
time.
To Custodian:
State Street Bank and Trust Company
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Vice President, Custody
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
To each Fund:
[Fund name]
c/o Hartford Administrative Services Company
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇, Vice President
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to:
The Hartford
Life Law Group - Mutual Funds ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Assistant General Counsel
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
28. Counterparts.
This Contract may be executed in several counterparts, each of which shall
be deemed to be an original, and all such counterparts taken together shall
constitute one and the same Contract.
29. Business Continuity.
On or before the date of this Contract, the Custodian shall, at its
expense, have implemented, and shall continue to maintain and periodically test
and update a commercially reasonable business continuity and disaster recovery
plan to provide for the protection of information, data and assets of and
relevant to its customers, including the Funds.
31
30. Severability; Waiver.
If any provision or provisions of this Contract shall be held to be
invalid, unlawful or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired. Failure
by any party to insist on strict compliance with this Contract will not be
considered a waiver by such party of any default or breach under the Contract.
The failure of any party to exercise any right under this Contract shall not to
any extent preclude such party from asserting or relying upon such right at any
other time or in any other instance.
31. Employment of Sub-contractors and Agents.
Subject to Section 2.8 and Article 4, the Custodian may at any time or
times in its discretion employ (and may at any time remove) sub-contractors and
agents to carry out such functions as the Custodian may from time to time
direct; provided, however, that the employment of any sub-contractor or agent
shall not relieve the Custodian of its responsibilities or liabilities
hereunder.
31. Shareholder Communications
SEC Rule 14b-2 requires banks which hold securities for the account of
customers to respond to requests by issuers of securities for the names,
addresses and holdings of beneficial owners of securities of that issuer held by
the bank unless the beneficial owner has expressly objected to disclosure of
this information. In order to comply with the rule, the Custodian needs each
Fund to indicate whether it authorizes the Custodian to provide the Fund's
names, address, and share position to requesting companies whose securities the
Fund owns. If a Fund tells the Custodian "no", the Custodian will not provide
this information to requesting companies. If a Fund tells the Custodian "yes" or
does not check either "yes" or "no" below, the Custodian is required by the rule
to treat the Fund as consenting to disclosure of this information for all
securities owned by the Fund or any funds or accounts established by the Fund.
For the Fund's protection, the Rule prohibits the requesting company from using
the Fund's name and address for any purpose other than corporate communications.
Please indicate below whether the Fund consents or object by checking one of the
alternatives below.
Yes [ ] The Custodian is authorized to release the Fund's
name, address, and share positions.
No [X] The Custodian is not authorized to release the Fund's
name, address, and share positions.
Next Page is Signature Page
32
IN WITNESS WHEREOF, each of the parties has caused this instrument to be
executed in its name and behalf by its duly authorized representative as of the
date first above-written.
STATE STREET BANK AND TRUST ATTEST
COMPANY
By: By:
--------------------------------- ------------------------------------
Name: Name:
------------------------------- ----------------------------------
Title:
------------------------------
Each of the following registered investment companies acting with respect to
each of its series listed on Appendix A hereto or, if no such series is so
listed, acting for itself, severally and not jointly
HARTFORD SERIES FUND, INC. ATTEST
By: By:
--------------------------------- ------------------------------------
Name: Name:
------------------------------- ----------------------------------
Title:
------------------------------
THE HARTFORD MUTUAL FUNDS, INC. ATTEST
By: By:
--------------------------------- ------------------------------------
Name: Name:
------------------------------- ----------------------------------
Title:
------------------------------
THE HARTFORD MUTUAL FUNDS II, INC. ATTEST
By: By:
--------------------------------- ------------------------------------
Name: Name:
------------------------------- ----------------------------------
Title:
------------------------------
HARTFORD HLS SERIES FUND II, INC. ATTEST
By: By:
--------------------------------- ------------------------------------
Name: Name:
------------------------------- ----------------------------------
Title:
------------------------------
HARTFORD INCOME SHARES FUND, INC. ATTEST
By: By:
--------------------------------- ------------------------------------
Name: Name:
------------------------------- ----------------------------------
Title:
------------------------------
33
APPENDIX A
The following registered management investment companies and series are parties
to the attached Custodian Contract as of January [__], 2007:
INVESTMENT COMPANY NAME, JURISDICTION
OF ORGANIZATION AND TYPE OF ENTITY NAME OF SERIES
------------------------------------- --------------
Hartford Series Fund, Inc., a Maryland
corporation
The Hartford Mutual Funds, Inc., a
Maryland corporation
The Hartford Mutual Funds II, Inc.,
a Maryland corporation
Hartford HLS Series Fund II, Inc., a
Maryland corporation
Hartford Income Shares Fund, Inc., a
Maryland corporation
1
SCHEDULE A
STATE STREET
GLOBAL CUSTODY NETWORK
SUBCUSTODIANS
COUNTRY SUBCUSTODIAN
------- ------------
Argentina Citibank, N.A.
Australia Westpac Banking Corporation
Citibank Pty. Limited
Austria Erste Bank der Osterreichischen Sparkassen AG
Bahrain HSBC Bank Middle East
(as delegate of the Hongkong and Shanghai Banking
Corporation Limited)
Bangladesh Standard Chartered Bank
Belgium BNP Paribas Securities Services, S.A.
Benin via Societe Generale de Banques en Cote d'Ivoire,
Abidjan, Ivory Coast
Bermuda The Bank of Bermuda Limited
Botswana Barclays Bank of Botswana Limited
Brazil Citibank, N.A.
Bulgaria ING Bank N.V.
Burkina Faso via Societe Generale de Banques en Cote d'Ivoire,
Abidjan, Ivory Coast
Canada State Street Trust Company Canada
Cayman Islands Scotiabank & Trust (Cayman) Limited
Chile BankBoston, N.A.
People's Republic The Hongkong and Shanghai Banking Corporation Limited,
of China Shanghai and Shenzhen branches
09/30/06
1
SCHEDULE A
STATE STREET
GLOBAL CUSTODY NETWORK
SUBCUSTODIANS
COUNTRY SUBCUSTODIAN
------- ------------
Colombia Cititrust Colombia S.A. Sociedad Fiduciaria
Costa Rica Banco BCT S.A.
Croatia Privredna Banka Zagreb d.d
Cyprus Cyprus Popular Bank Public Company Ltd.
Czech Republic Ceskoslovenska Obchodni Banka, A.S.
Denmark Skandinaviska Enskilda Bankken AB, Sweden (operating
through its Copenhagen branch)
Ecuador Banco de la Produccion S.A. PRODUBANCO
Egypt HSBC Bank Egypt S.A.E.
(as delegate of The Hongkong and Shanghai Banking
Corporation Limited)
Estonia AS Hansabank
Finland Nordea Bank Finland Plc.
France BNP Paribas Securities Services, S.A.
Deutsche Bank AG, Netherlands (operating through its
Paris branch)
Germany Deutsche Bank AG
Ghana Barclays Bank of Ghana Limited
Greece National Bank of Greece S.A.
Guinea-Bissau via Societe Generale de Banques en Cote d'Ivoire,
Abidjan, Ivory Coast
Hong Kong Standard Chartered Bank (Hong Kong) Limited
09/30/06
2
SCHEDULE A
STATE STREET
GLOBAL CUSTODY NETWORK
SUBCUSTODIANS
COUNTRY SUBCUSTODIAN
------- ------------
Hungary HVB Bank Hungary Rt.
Iceland Kaupthing Bank hf.
India Deutsche Bank AG
The Hongkong and Shanghai Banking Corporation Limited
Indonesia Deutsche Bank AG
Ireland Bank of Ireland
Israel Bank Hapoalim B.M.
Italy BNP Paribas Securities Services, S.A.
Deutsche Bank S.p.A.
Ivory Coast Societe Generale de Banques en Cote d'Ivoire
Jamaica Bank of Nova Scotia Jamaica Ltd.
Japan Mizuho Corporate Bank Ltd.
Sumitomo Mitsui Banking Corporation
Jordan HSBC Bank Middle East
(as delegate of the Hongkong and Shanghai Banking
Corporation Limited)
Kazakhstan HSBC Bank Kazakhstan
(as delegate of the Hongkong and Shanghai Banking
Corporation Limited)
Kenya Barclays Bank of Kenya Limited
Republic of Korea Deutsche Bank AG
09/30/06
3
SCHEDULE A
STATE STREET
GLOBAL CUSTODY NETWORK
SUBCUSTODIANS
COUNTRY SUBCUSTODIAN
------- ------------
The Hongkong and Shanghai Banking Corporation Limited
Latvia A/s Hansabanka
Lebanon HSBC Bank Middle East
(as delegate of The Hongkong and Shanghai Banking
Corporation Limited)
Lithuania SEB Vilniaus Bankas AB
Malaysia Standard Chartered Bank Malaysia Berhad
Mali via Societe Generale de Banques en Cote d'Ivoire,
Abidjan, Ivory Coast
Malta The Hongkong and Shanghai Banking Corporation Limited
Mauritius The Hongkong and Shanghai Banking Corporation Limited
Mexico Banco Nacional de Mexico S.A.
Morocco Attijariwafa bank
Namibia Standard Bank Namibia Limited -
Netherlands Deutsche Bank AG
New Zealand Westpac Banking Corporation
Niger via Societe Generale de Banques en Cote d'Ivoire,
Abidjan, Ivory Coast
Nigeria Stanbic Bank Nigeria Limited
Norway Nordea Bank Norge ASA
Oman HSBC Bank Middle East Limited
(as delegate of The Hongkong and Shanghai Banking
Corporation Limited)
09/30/06
4
SCHEDULE A
STATE STREET
GLOBAL CUSTODY NETWORK
SUBCUSTODIANS
COUNTRY SUBCUSTODIAN
------- ------------
Pakistan Deutsche Bank AG
Palestine HSBC Bank Middle East Limited
(as delegate of The Hongkong and Shanghai Banking
Corporation Limited)
Panama HSBC Bank (Panama) S.A.
Peru Citibank del Peru, S.A.
Philippines Standard Chartered Bank
Poland Bank Handlowy w Warszawie S.A.
Portugal Banco Comercial Portugues S.A.
Puerto Rico Citibank N.A.
Qatar HSBC Bank Middle East Limited
(as delegate of The Hongkong and Shanghai Banking
Corporation Limited)
Romania ING Bank N.V.
Russia ING Bank (Eurasia) ZAO, Moscow
Senegal via Societe Generale de Banques en Cote d'Ivoire,
Abidjan, Ivory Coast
Serbia HVB Bank Serbia and Montenegro a.d.
Singapore DBS Bank Limited
United Overseas Bank Limited
Slovak Republic Ceskoslovenska Obchodni Banka, A.S., pobocka zahranicnej
banky v SR
Slovenia Bank Austria Creditanstalt d.d. - Ljubljana
09/30/06
5
SCHEDULE A
STATE STREET
GLOBAL CUSTODY NETWORK
SUBCUSTODIANS
COUNTRY SUBCUSTODIAN
------- ------------
South Africa Nedbank Limited
Standard Bank of South Africa Limited
Spain Deutsche Bank S.A.E.
Sri Lanka The Hongkong and Shanghai Banking Corporation Limited
Swaziland Standard Bank Swaziland Limited
Sweden Skandinaviska Enskilda ▇▇▇▇▇▇ ▇▇
Switzerland UBS AG
Taiwan - R.O.C. Central Trust of China
Thailand Standard Chartered Bank (Thai) Public Company Limited
Togo via Societe Generale de Banques en Cote d'Ivoire,
Abidjan, Ivory Coast
Trinidad & Tobago Republic Bank Limited
Tunisia Banque Internationale Arabe de Tunisie
Turkey Citibank, A.S.
Uganda Barclays Bank of Uganda Limited
Ukraine ING Bank Ukraine
United Arab Emirates HSBC Bank Middle East Limited
(as delegate of The Hongkong and Shanghai Banking
Corporation Limited)
United Kingdom State Street Bank and Trust Company, United kingdom
Branch
09/30/06
6
SCHEDULE A
STATE STREET
GLOBAL CUSTODY NETWORK
SUBCUSTODIANS
COUNTRY SUBCUSTODIAN
------- ------------
Uruguay BankBoston, N.A.
Venezuela Citibank, N.A.
Vietnam The Hongkong and Shanghai Banking Corporation Limited
Zambia Barclays Bank of Zambia Plc.
Zimbabwe Barclays Bank of Zimbabwe Limited
09/30/06
7
SCHEDULE B
STATE STREET
GLOBAL CUSTODY NETWORK
DEPOSITORIES OPERATING IN NETWORK MARKETS
COUNTRY DEPOSITORIES
------- ------------
Argentina Caja de Valores S.A.
Australia Austraclear Limited
Austria Oesterreichische Kontrollbank AG
(Wertpapiersammelbank Division)
Bahrain Clearing, Settlement, and Depository System of the
Exchange Bahrain Stock
Bangladesh Central Depository Bangladesh Limited
Belgium Banque Nationale de Belgique
Euroclear Belgium
Benin Depositaire Central - Banque de Reglement
Bermuda Bermuda Securities Depository
Brazil Central de Custodia e de Liquidacao Financeira de Titulos
(CETIP) Privados
Companhia Brasileira de Liquidacao e Custodia
Sistema Especial de Liquidacao e de Custodia (SELIC)
Bulgaria Bulgarian National Bank
Central Depository AD
Burkina Faso Depositaire Central - Banque de Reglement
Canada The Canadian Depository for Securities Limited
Chile Deposito Central de Valores S.A.
People's Republic China Securities Depository and Clearing Corporation Limited
1
SCHEDULE B
STATE STREET
GLOBAL CUSTODY NETWORK
DEPOSITORIES OPERATING IN NETWORK MARKETS
COUNTRY DEPOSITORIES
------- ------------
of China Shanghai Branch
China Securities Depository and Clearing Corporation Limited
Shenzhen Branch
Colombia Deposito Central de Valores
Deposito Centralizado de Valores de Colombia S..A. (DECEVAL)
Costa Rica Central de Valores S.A.
Croatia Sredisnja Depozitarna Agencija d.d.
Cyprus Central Depository and Central Registry
Czech Republic Czech National Bank
Stredisko cennych papiru - Ceska republika
Denmark Vaerdipapircentralen (Danish Securities Center)
Egypt Misr for Clearing, Settlement, and Depository S.A.E.
Central Bank of Egypt
Estonia AS Eesti Vaartpaberikeskus
Finland Suomen Arvopaperikeskus Oy
France Euroclear France
Germany Clearstream Banking AG, Frankfurt
Greece Apothetirion Titlon AE - Central Securities Depository
Bank of Greece,
System for Monitoring Transactions in Securities in Book-Entry Form
Guinea-Bissau Depositaire Central - Banque de Reglement
2
SCHEDULE B
STATE STREET
GLOBAL CUSTODY NETWORK
DEPOSITORIES OPERATING IN NETWORK MARKETS
COUNTRY DEPOSITORIES
------- ------------
Hong ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇ Securities Clearing Company Limited
Hungary Kozponti Elszamolohaz es Ertektar (Budapest) Rt. (KELER)
Iceland Icelandic Securities Depository Limited
India Central Depository Services (India) Limited
National Securities Depository Limited
Reserve Bank of India
Indonesia Bank Indonesia
PT Kustodian Sentral Efek Indonesia
Israel Tel Aviv Stock Exchange Clearing House Ltd. (TASE Clearinghouse)
Italy Monte Titoli S.p.A.
Ivory Coast Depositaire Central - Banque de Reglement
Jamaica Jamaica Central Securities Depository
Japan Bank of Japan - Net System
Japan Securities Depository Center (JASDEC) Incorporated
Jordan Securities Depository Center
Kazakhstan Central Securities Depository
Kenya Central Depository and Settlement Corporation Limited
Central Bank of Kenya
3
SCHEDULE B
STATE STREET
GLOBAL CUSTODY NETWORK
DEPOSITORIES OPERATING IN NETWORK MARKETS
COUNTRY DEPOSITORIES
------- ------------
Republic of Korea Korea Securities Depository
Latvia Latvian Central Depository
Lebanon Banque du Liban
Custodian and Clearing Center of Financial Instruments
for Lebanon and the Middle East (Midclear) ▇.▇.▇.
Lithuania Central Securities Depository of Lithuania
Malaysia Bank Negara Malaysia
Bursa Malaysia Depository Sdn. Bhd.
Mali Depositaire Central - Banque de Reglement
Malta Central Securities Depository of the Malta Stock Exchange
Mauritius Bank of Mauritius
Central Depository and Settlement Co. Ltd.
Mexico S.D. INDEVAL, S.A. de C.V.
Morocco Maroclear
Namibia Bank of Namibia
Netherlands Euroclear Nederland
New Zealand New Zealand Central Securities Depository Limited
Niger Depositaire Central - Banque de Reglement
4
SCHEDULE B
STATE STREET
GLOBAL CUSTODY NETWORK
DEPOSITORIES OPERATING IN NETWORK MARKETS
COUNTRY DEPOSITORIES
------- ------------
Nigeria Central Securities Clearing System Limited
Norway Verdipapirsentralen (Norwegian Central Securities Depository)
Oman Muscat Depository & Securities Registration Company, SAOC
Pakistan Central Depository Company of Pakistan Limited
State Bank of Pakistan
Palestine Clearing, Depository and Settlement, a department
of the Palestine Stock Exchange
Panama Central Latinoamericana de Valores, S.A. (LatinClear)
Peru Caja de Valores y Liquidaciones, Institucion de
Compensacion y Liquidacion de Valores S.A
Philippines Philippine Depository & Trust Corporation
Registry of Scripless Securities (▇▇▇▇) of the Bureau of Treasury
Poland Rejestr Papierow Wartooeciowych
Krajowy Depozyt Papierow Wartosciowych S.A.
Portugal INTERBOLSA - Sociedade Gestora de Sistemas de Liquidacao
e de Sistemas Centralizados de Valores Mobiliarios, S.A.
Qatar Central Clearing and Registration (CCR), a
department of the Doha Securities Market
Romania Bucharest Stock Exchange Registry Division
National Bank of Romania
Russia Vneshtorgbank, Bank for Foreign Trade of the Russian Federation
5
SCHEDULE B
STATE STREET
GLOBAL CUSTODY NETWORK
DEPOSITORIES OPERATING IN NETWORK MARKETS
COUNTRY DEPOSITORIES
------- ------------
Senegal Depositaire Central - Banque de Reglement
Serbia Central Registrar and Central Depository for Securities
Singapore The Central Depository (Pte) Limited
Monetary Authority of Singapore
Slovak Republic Naodna banka slovenska
Centralny depozitar cennych papierov SR, a.s.
Slovenia KDD - Centralna klirinsko depotna ▇▇▇▇▇▇ ▇.▇.
South Africa Share Transactions Totally Electronic (STRATE) Ltd.
Spain IBERCLEAR
Sri Lanka Central Depository System (Pvt) Limited
Sweden Vardepapperscentralen VPC AB
(Swedish Central Securities Depository)
Switzerland SegaIntersettle AG (SIS)
Taiwan - R.O.C. Taiwan Depository and Clearing Corporation
Thailand Thailand Securities Depository Company Limited
Togo Depositaire Central - Banque de Reglement
Trinidad and Tobago Trinidad and Tobago Central Bank
Tunisia Societe Tunisienne Interprofessionelle pour la Compensation
6
SCHEDULE B
STATE STREET
GLOBAL CUSTODY NETWORK
DEPOSITORIES OPERATING IN NETWORK MARKETS
COUNTRY DEPOSITORIES
------- ------------
et de Depots des Valeurs Mobilieres (STICODEVAM)
Turkey Central Bank of Turkey
Central Registry Agency
Uganda Bank of Uganda
Ukraine Mizhregionalny Fondovy Souz
National Bank of Ukraine
United Arab Emirates Clearing and Depository System,
a department of the Dubai Financial Market
United Kingdom CrestCo.
Uruguay Banco Central del Uruguay
Venezuela Banco Central de Venezuela
Caja Venezolana de Valores
Vietnam Vietnam Securities Depository
Zambia Bank of Zambia
▇▇▇▇ Central Shares Depository Limited
TRANSNATIONAL
Euroclear
Clearstream Banking, S.A.
SCHEDULE C
MARKET INFORMATION
PUBLICATION/TYPE OF INFORMATION BRIEF DESCRIPTION
------------------------------------- -----------------
(SCHEDULED FREQUENCY)
The Guide to Custody in World Markets An overview of settlement and safekeeping
(hardcopy annually and regular procedures, custody practices and foreign
website updates) investor considerations for the markets in which
State Street offers custodial services.
Global Custody Network Review Information relating to Foreign Sub-Custodians in
(annually) State Street's Global Custody Network. The Review
stands as an integral part of the materials that
State Street provides to its U.S. mutual fund
clients to assist them in complying with SEC Rule
17f-5. The Review also gives insight into State
Street's market expansion and Foreign
Sub-Custodian selection processes, as well as the
procedures and controls used to monitor the
financial condition and performance of our
Foreign Sub-Custodian banks.
Securities Depository Review Custody risk analyses of the Foreign Securities
(annually) Depositories presently operating in Network
markets. This publication is an integral part of
the materials that State Street provides to its
U.S. mutual fund clients to meet informational
obligations created by SEC Rule 17f-7.
Global Legal Survey With respect to each market in which State Street
(annually) offers custodial services, opinions relating to
whether local law restricts (i) access of a
fund's independent public accountants to books and
records of a Foreign Sub-Custodian or Foreign
Securities System, (ii) a fund's ability to
recover in the event of bankruptcy or insolvency
of a Foreign Sub-Custodian or Foreign Securities
System, (iii) a fund's ability to recover in the
event of a loss by a Foreign Sub-Custodian or
Foreign Securities System, and (iv) the ability
of a foreign investor to convert cash and cash
equivalents to U.S. dollars.
Subcustodian Agreements Copies of the contracts that State Street has
(annually) entered into with each Foreign Sub-Custodian that
maintains U.S. mutual fund assets in the markets
in which State Street offers custodial services.
Global Market Bulletin Information on changing settlement and custody
(daily or as necessary) conditions in markets where State Street offers
custodial services. Includes changes in market
and tax regulations, depository developments,
dematerialization information, as well as other
market changes that may impact State Street's
clients.
Foreign Custody Advisories For those markets where State Street offers
(as necessary) custodial services that exhibit special risks or
infrastructures impacting custody, State Street
issues market advisories to highlight those unique
market factors which might impact our ability to
offer recognized custody service levels.
Material Change Notices Informational letters and accompanying materials
(presently on a quarterly basis or confirming State Street's foreign custody
as otherwise necessary) arrangements, including a summary of material
changes with Foreign Sub-Custodians that have
occurred during the previous quarter. The notices
also identify any material changes in the
custodial risks associated with maintaining
assets with Foreign Securities Depositories.
1
REMOTE ACCESS SERVICES ADDENDUM
To Custodian Contract by and between State Street Bank and Trust Company
and each registered investment company identified on the signature page hereto,
dated January [__], ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ and its subsidiaries have developed proprietary accounting and
other systems which we utilize in conjunction with the services we provide to
you (the "Systems"). In this regard, we maintain certain information in
databases under our control and ownership that we make available on a remote
basis to our customers (the "Remote Access Services").
The Services. This addendum shall govern use of all Systems that State
Street may from time to time agree to provide you, the Customer, and your
designated investment advisors, consultants or other third parties authorized by
State Street who agree to abide by the terms of this Addendum ("Authorized
Designees") in order to provide Remote Access Services for the purpose of
obtaining and analyzing reports and information.
Security Procedures. You agree to comply, and to cause your Authorized
Designees to comply, with remote access operating standards and procedures and
with user identification or other password control requirements and other
security procedures as may be issued from time to time by State Street for use
of the Systems and access to the Remote Access Services. You agree to advise
State Street immediately in the event that you learn or have reason to believe
that any person to whom you have given access to the Systems or the Remote
Access Services has violated or intends to violate the terms of this Addendum
and you will cooperate with State Street in seeking injunctive or other
equitable relief. You agree to discontinue use of the Systems and Remote Access
Services, if requested, for any security reasons cited by State Street.
Fees. Fees and charges (if any) for the use of the Systems and the Remote
Access Services and related payment terms shall be as set forth in the fee
schedule in effect from time to time between the parties (the "Fee Schedule").
You shall be responsible for any tariffs, duties or taxes imposed or levied by
any government or governmental agency by reason of the transactions contemplated
by this Addendum, including, without limitation, federal, state and local taxes,
use, value added and personal property taxes (other than income, franchise or
similar taxes which may be imposed or assessed against State Street). Any
claimed exemption from such tariffs, duties or taxes shall be supported by
proper documentary evidence delivered to State Street.
Proprietary Information/Injunctive Relief. The Systems and Remote Access
Services and the databases, computer programs, screen formats, report formats,
interactive design techniques, formulae, processes, systems, software, know-how,
algorithms, programs, training aids, printed materials, methods, books, records,
files, documentation and other information made available to you by State Street
as part of the Remote Access Services and through the use of the Systems and all
copyrights, patents, trade secrets and other proprietary rights of State Street
and its relevant licensors related thereto are the exclusive, valuable and
confidential property of State Street and its relevant licensors, as applicable
(the "Proprietary Information").
You agree on behalf of yourself and your Authorized Designees to keep the
Proprietary Information confidential and to limit access to your employees and
Authorized Designees (under a similar duty of confidentiality) who require
access to the Systems for the purposes intended. The foregoing shall not apply
to Proprietary Information in the public domain or required by law to be made
public.
1
You agree to use the Remote Access Services only in connection with the
proper purposes of this Addendum. You will not, and will cause your employees
and Authorized Designees not to, (i) permit any third party to use the Systems
or the Remote Access Services, (ii) sell, rent, license or otherwise use the
Systems or the Remote Access Services in the operation of a service bureau or
for any purpose other than as expressly authorized under this Addendum, (iii)
use the Systems or the Remote Access Services for any fund, trust or other
investment vehicle without the prior written consent of State Street, or (iv)
allow or cause any information transmitted from State Street's databases,
including data from third party sources, available through use of the Systems or
the Remote Access Services, to be redistributed or retransmitted for other than
use for or on behalf of yourself, as our Customer.
You agree that neither you nor your Authorized Designees will modify the
Systems in any way, enhance or otherwise create derivative works based upon the
Systems, nor will you or your Authorized Designees reverse engineer, decompile
or otherwise attempt to secure the source code for all or any part of the
Systems.
You acknowledge that the disclosure of any Proprietary Information, or of
any information which at law or equity ought to remain confidential, will
immediately give rise to continuing irreparable injury inadequately compensable
in damages at law, and that State Street and its licensor, if applicable, shall
be entitled to obtain immediate injunctive relief against the breach or
threatened breach of any of the foregoing undertakings, in addition to any other
legal remedies which may be available.
Limited Warranties. State Street represents and warrants that it has the
right to grant access to the Systems and to provide the Remote Access Services
contemplated herein. Because of the nature of computer information technology,
including but not limited to the use of the Internet, and the necessity of
relying upon third-party sources, and data and pricing information obtained from
third parties, the Systems and Remote Access Services are provided "AS IS", and
you and your Authorized Designees shall be solely responsible for the investment
decisions, results obtained, regulatory reports and statements produced using
the Remote Access Services. State Street and its relevant licensors will not be
liable to you or your Authorized Designees for any direct or indirect, special,
incidental, punitive or consequential damages arising out of or in any way
connected with the Systems or the Remote Access Services, nor shall either party
be responsible for delays or nonperformance under this Addendum arising out of
any cause or event beyond such party's control.
EXCEPT AS EXPRESSLY SET FORTH IN THIS ADDENDUM, STATE STREET FOR ITSELF AND
ITS RELEVANT LICENSORS EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES CONCERNING THE
SYSTEM AND THE SERVICES TO BE RENDERED HEREUNDER, WHETHER EXPRESS OR IMPLIED,
INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTIBILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
Infringement. State Street will defend or, at our option, settle any claim
or action brought against you to the extent that it is based upon an assertion
that access to any proprietary System developed and owned by State Street or use
of the Remote Access Services through any such proprietary System by you under
this Addendum constitutes direct infringement of any United States patent or
copyright or misappropriation of a trade secret, provided that you notify State
2
Street promptly in writing of any such claim or proceeding and cooperate 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 copyright or trade
secret laws of the United States, State Street shall have the right, at State
Street's sole option, to (i) procure for you the right to continue using such
System or Remote Access Services, (ii) replace or modify such System or Remote
Access Services so that the System or the Remote Access Services becomes
non-infringing, or (iii) terminate access to the Remote Access Services without
further obligation.
Termination. Either party may terminate access to the Remote Access
Services (i) for any reason by giving the other party at least one-hundred and
eighty (180) days' prior written notice in the case of notice of termination by
State Street to you or thirty (30) days' notice in the case of notice from you
to State Street of termination, or (ii) immediately for failure of the other
party to comply with any material term and condition of the Addendum by giving
the other party written notice of termination. In the event of termination, you
will return to State Street all Proprietary Information in your possession or in
the possession of your Authorized Designees. The foregoing provisions with
respect to confidentiality and infringement will survive termination for a
period of three (3) years.
Miscellaneous. Except as provided in the next sentence, this Addendum
constitutes our entire understanding with respect to access to the Systems and
the Remote Access Services. If any State Street custody, accounting or other
services agreement with you contains terms and conditions relating to computer
systems or data access, this Addendum shall constitute an amendment and
supplement to them, and in the event of any inconsistency the provisions
providing the greatest benefit to State Street shall control. This Addendum
cannot be modified or altered except in a writing duly executed by both of us
and shall be governed by and construed in accordance with the laws of the
Commonwealth of Massachusetts.
[next page is signature page]
3
CONFIRMED AND AGREED:
Each of the following registered investment companies acting with respect to
each of its series, if any, or, if it has no such series, acting for itself,
severally and not jointly
HARTFORD SERIES FUND, INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
THE HARTFORD MUTUAL FUNDS, INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
THE HARTFORD MUTUAL FUNDS II, INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
HARTFORD HLS SERIES FUND II, INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
HARTFORD INCOME SHARES FUND, INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
4