GLOBAL SUB-CUSTODIAN AGREEMENT
Exhibit
(g)(17) under Form N-1A
Exhibit
10 under Item 601/Reg. S-K
THIS GLOBAL
SUB-CUSTODIAN AGREEMENT (“Agreement”), dated as of
___________________________, 2008, between THE HUNTINGTON NATIONAL BANK, a
national bank organized under the laws of the United States (the Bank), acting as custodian and
foreign custody manager on behalf of the management investment companies listed
on Appendix A each of whom are registered with the Commission under the
Investment Company Act of 1940 (each a “Fund” and collectively the
“Funds”), and ▇▇▇▇▇ BROTHERS ▇▇▇▇▇▇▇▇ &
CO., a limited partnership formed under the laws of the State of New York
(BBH&Co. or the Global
Sub-custodian),
W
I T N E S S E T H:
WHEREAS,
the Bank serves as custodian and foreign custody manager for certain of its
customers (Customers);
WHEREAS,
the Bank wishes to employ BBH&Co. to act as Global Subcustodian and foreign
custody manager for the Bank on its own behalf and on behalf of its Customers
and to provide related services, all as provided herein, and BBH&Co. is
willing to accept such employment, subject to the terms and conditions herein
set forth;
NOW,
THEREFORE, in consideration of the mutual covenants and agreements herein
contained, the Bank and BBH&Co. hereby agree, as follows:
1. Appointment of
Custodian. The Bank hereby delegates and appoints BBH&Co.
as the Global Sub-custodian and foreign custody manager for the Bank and its
Customers, and BBH&Co. hereby accepts such appointment. All
Investments delivered to the Global Sub-custodian or its agents or
Sub-subcustodians shall be dealt with as provided in this
Agreement. The duties of the Global Sub-custodian with respect
to such Investments shall be only as set forth expressly in this Agreement which
duties are generally comprised of safekeeping and various administrative duties
that will be performed in accordance with Instructions and as reasonably
required to effect Instructions. BBH&Co. will provided to Bank a list of
BBH&Co.’s Sub-subcustodians upon request from Bank.
2. Representations,
Warranties and Covenants of the Bank. The Bank hereby
represents, warrants and covenants each of the following:
2.1 This
Agreement has been, and at the time of delivery of each Instruction such
Instruction will have been, duly authorized, executed and delivered by the
Bank. This Agreement, to the best of Bank’s knowledge, does not
violate any Applicable Law or conflict with or constitute a default under the
Bank's prospectus, articles of organization or other constitutive document,
agreement, judgment, order or decree to which the Bank is a party or by which it
is bound, including without limitation any agreement in effect between the Bank
and any of its Customers whose assets may be maintained under this
Agreement.
2.2 The
Bank is (i) duly authorized under each agreement governing its relationship with
any underlying Customer for whom it may be acting as agent to appoint
BBH&Co. as its Global Sub-custodian on the terms and conditions hereunder;
(ii) the agreement of each Customer with the Bank permits the custody and
administration of Investments by an appointee of the Bank and a grant of a
security interest therein, each as described in and on such terms as provided in
this Agreement; and (iii) the representations contained in the general
warranties and representations provided in Section 2.1 above also apply with
respect to all Customers of the Bank and to any arrangements that the Bank may
have with such Customers and to the safekeeping and administration of
Investments hereunder.
2.3 By
providing an Instruction with respect to the first acquisition of an Investment
in a jurisdiction other than the United States of America, the Bank shall be
deemed to have confirmed to the Global Sub-custodian that the Bank and its
Customers have (a) assessed and accepted all material Country or Sovereign Risks
and accepted responsibility for their occurrence, (b) made all determinations
required to be made by the Bank or any Customer under Applicable Law, and (c)
appropriately and adequately disclosed to its shareholders, other investors,
Customers and all persons who have rights in or to such Investments, all
material investment risks, including those relating to the custody and
settlement infrastructure or the servicing of securities in such
jurisdiction.
2.4 The
Bank shall safeguard and shall solely be responsible for the safekeeping of any
testkeys, identification codes, passwords, other security devices or statements
of account with which the Global Sub-custodian provides it. If the
Bank uses any on-line or similar communications service made available by the
Global Sub-custodian, the Bank shall be solely responsible for ensuring the
security of its access to the service and for the use of the service, and shall
only attempt to access the service and the Global Sub-custodian’s computer
systems as directed by the Global Sub-custodian. If the Global
Sub-custodian provides any computer software to the Bank relating to the
services described in this Agreement, the Bank will only use the software for
the purposes for which the Global Sub-custodian provided the software to the
Bank, and will abide by the license agreement accompanying the software and any
other security policies which the Global Sub-custodian provides to the
Bank.
2.5 Notwithstanding
anything in this Agreement to contrary effect, the Bank specifically represents
and warrants to the Global Sub-custodian that it shall at all times be
principally liable for the repayment of any Advance made by the Global
Sub-custodian under this Agreement in connection with any Instruction from an
Authorized Person.
2.6 By
providing an Instruction in respect of an Investment (which Instruction may
relate to among other things, the execution of trades), the Bank hereby (i)
authorizes BBH&Co. to complete such documentation as may be required or
appropriate for the execution of the Instruction, and agrees to be contractually
bound to the terms of such documentation “as is” without recourse against
BBH&Co.; (ii) represents, warrants and covenants that it has accepted and
agreed to comply with all Applicable Law, terms and conditions to which the
Bank’s Customer’s investment may be bound, including without limitation,
requirements imposed by the Investment prospectus or offering circular,
subscription agreement, any application or other documentation relating to an
Investment (e.g., compliance with suitability requirements and eligibility
restrictions); (iii) acknowledges and agrees that BBH&Co. will not be
responsible for the accuracy of any information provided to it by or on behalf
of the Bank, or for any underlying commitment or obligation inherent to an
Investment; (iv) represents, warrants and covenants that it will not effect any
sale, transfer or disposition of Investment(s) held in BBH&Co.’s name by any
means other than the issuance of an Instruction by the Bank to BBH&Co.; (v)
acknowledges that collective investment schemes (and/or their agent(s)) in which
the Bank invests may pay to BBH certain fees (including without limitation,
shareholder servicing and/or trailer fees) in respect of the Bank’s Customer’s
investments in such schemes; (vi) represents, warrants and covenants that it
will provide BBH&Co. with such information as is necessary or appropriate to
enable BBH&Co.’s performance pursuant to an Instruction or under this
Agreement; (vii) represents that it is not a “Plan” (which term includes (1)
employee benefit plans that are subject to the United States (“US”) Employee
Retirement Income Security Act of 1974, as amended (“ERISA”), or plans,
individual retirement accounts and other arrangements that are subject to
Section 4975 of the US Internal Revenue Code of 1986, as amended (the “Code”),
(2) plans, individual retirement accounts and other arrangements that are
subject to the prohibited transaction provisions of Section 406 of ERISA or
Section 4975 of the Code, and (3) entities the underlying assets of which are
considered to include “plan assets” of such plans, accounts and arrangements),
or an entity purchasing shares on behalf of, or with the “plan assets” of, a
Plan; and (viii) undertakes to inform BBH&Co. and to keep the same updated
as to the status under ERISA or Section 4975 of the Code, each as amended, of
the beneficial investor to the Investment, and as to any tax withholding or
benefit to which an Investment may be subject.
3. Representation
and Warranty of BBH&Co. BBH&Co. hereby represents and
warrants that this Agreement has been duly authorized, executed and delivered by
BBH&Co. and does not and will not violate any Applicable Law or conflict
with or constitute a default under BBH&Co.'s limited partnership agreement
or any agreement, instrument, judgment, order or decree to which BBH&Co. is
a party or by which it is bound. BBH&Co. warrants that it will
conduct its business related to this Agreement in substantial compliance with
all Applicable Laws and requirements, both state and federal, and that it and
its employees, as applicable, have obtained all regulatory licenses, approvals
and consent necessary to carry out the services to be preformed under this
Agreement. BBH&Co. further warrants that (i) all services
performed under this Agreement will be performed in a professional manner
consistent with the generally accepted industry standards of care and competence
as found in Section 9 hereof.
4 Instructions. Unless
otherwise explicitly indicated herein, the Global Sub-custodian shall perform
its duties pursuant to Instructions. As used herein, the term Instruction shall mean a
directive initiated by the Bank, acting directly or through its directors,
officers or other Authorized Persons, which directive shall conform to the
requirements of this Section 4.
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4.1
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Authorized
Persons. For purposes hereof, an Authorized Person shall
be a person or entity authorized to give Instructions for or on behalf of
the Bank by written notices to the Global Sub-custodian or otherwise in
accordance with procedures delivered to and acknowledged by the Global
Sub-custodian. The Global Sub-custodian may treat any
Authorized Person as having full authority of the Bank to issue
Instructions hereunder unless the notice of authorization contains
explicit limitations as to said authority. The Global
Sub-custodian shall be entitled to rely upon the authority of Authorized
Persons until it receives appropriate written notice from the Bank to the
contrary.
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4.2
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Form of
Instruction. Each Instruction shall be transmitted by
such secured or authenticated electro-mechanical means as the Global
Sub-custodian shall make available to the Bank from time to time unless
the Bank shall elect to transmit such Instruction in accordance with
Subsections 4.2.1 through 4.2.3 of this
Section.
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4.2.1 Written
Instructions. Instructions may be transmitted in a writing
that bears the manual signature of Authorized Persons
4.2.2 Bank Designated
Secured-Transmission Method. Instructions may be transmitted through a
secured or tested electro-mechanical means identified by the Bank or by an
Authorized Person entitled to give Instruction and acknowledged and accepted by
the Global Sub-custodian, it being understood that such acknowledgment shall
authorize the Global Sub-custodian to accept such means of delivery but shall
not represent a judgment by the Global Sub-custodian as to the reasonableness or
security of the means utilized by the Authorized Person.
4.2.3 Other Forms of
Instruction. Instructions may also be transmitted by another
means determined by the Bank or Authorized Persons and acknowledged and accepted
by the Global Sub-custodian (subject to the same limits as to acknowledgements
as are contained in Subsection 4.2.1, above) including Instructions given orally
or by SWIFT or telefax (whether tested or untested).
When an
Instruction is given by means established under Subsections 4.2.1 through 4.2.3,
it shall be the responsibility of the Global Sub-custodian to use reasonable
care to adhere to any security or other procedures established in writing
between the Global Sub-custodian and the Authorized Person with respect to such
means of Instruction, but the Authorized Person shall be solely responsible for
determining that the particular means chosen is reasonable under the
circumstances. Oral Instructions shall be binding upon the Global
Sub-custodian only if and when the Global Sub-custodian takes action with
respect thereto. With respect to telefax instructions, the parties
agree and acknowledge that receipt of legible instructions cannot be assured,
that the Global Sub-custodian cannot verify that authorized signatures on
telefax instructions are original or properly affixed, and that the Global
Sub-custodian shall not be liable for losses or expenses incurred through
actions taken in reliance on inaccurately stated, illegible or unauthorized
telefax instructions. The provisions of Section 4A of the Uniform
Commercial Code shall apply to funds transfers performed in accordance with
Instructions. The Funds Transfer Services Schedule and the Electronic
and Online Services Schedule to this Agreement shall each comprise a designation
of a means of delivering Instructions for purposes of this Section
4.2.
4.3 Completeness and
Contents of Instructions. The Authorized Person shall be
responsible for assuring the adequacy and accuracy of
Instructions. Particularly, upon any acquisition or disposition or
other dealing in Investments and upon any delivery and transfer of any
Investment or moneys, the person initiating the Instruction shall give the
Global Sub-custodian an Instruction with appropriate detail, including, without
limitation:
4.3.1 The
transaction date and the date and location of settlement;
4.3.2 The
specification of the type of transaction;
4.3.3 A
description of the Investments or moneys in question, including, as appropriate,
quantity, price per unit, amount of money to be received or delivered and
currency information. Where an Instruction is communicated by
electronic means, or otherwise where an Instruction contains an identifying
number such as a CUSIP, SEDOL or ISIN number, the Global Sub-custodian shall be
entitled to rely on such number as controlling notwithstanding any inconsistency
contained in such Instruction, particularly with respect to Investment
description; and
4.3.4 The
name of the broker or similar entity concerned with execution of the
transaction.
If the
Global Sub-custodian determines that an Instruction is either unclear or
incomplete, the Global Sub-custodian may give prompt notice of such
determination to the Bank, and the Bank shall thereupon amend or otherwise
reform the Instruction. In such event, the Global Sub-custodian shall
have no obligation to take any action in response to the Instruction initially
delivered until the redelivery of an amended or reformed
Instruction.
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4.4
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Timeliness
of Instructions. In giving an Instruction, the Bank
shall take into consideration delays which may occur due to the
involvement of a Sub-subcustodian or agent, differences in time zones, and
other factors particular to a given market, exchange or
issuer. When the Global Sub-custodian has established specific
timing requirements or deadlines with respect to particular classes of
Instruction, or when an Instruction is received by the Global
Sub-custodian at such a time that it could not reasonably be expected to
have acted on such instruction due to time zone differences or other
factors beyond its reasonable control, the execution of any Instruction
received by the Global Sub-custodian after such deadline or at such time
(including any modification or revocation of a previous Instruction) shall
be at the risk of the Bank.
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5. Safekeeping of
Bank Assets. The Global Sub-custodian shall hold Investments
delivered to it or Sub-subcustodians for the Bank in accordance with the
provisions of this Section. The Global Sub-custodian shall not
be responsible for (a) the safekeeping of Investments not delivered or that are
not caused to be issued to it or its Sub-subcustodians, or, (b) pre-existing
faults or defects in Investments that are delivered to the Global Sub-custodian
or its Sub-subcustodians. The Global Sub-custodian is hereby
authorized to hold with itself or a Sub-subcustodian, and to record in one or
more accounts, all Investments delivered to and accepted by the Global
Sub-custodian, any Sub-subcustodian or their respective agents pursuant to an
Instruction or in consequence of any corporate action or income
event. The Global Sub-custodian shall hold Investments for the
account of the Bank and shall segregate Investments from assets belonging to the
Global Sub-custodian and shall cause its Sub-subcustodians to segregate
Investments from assets belonging to the Sub-subcustodian in an account held for
the Bank or in an account maintained by the Sub-subcustodian generally for
non-proprietary assets of the Global Sub-custodian.
5.1 Use of Securities
Depositories. The Global Sub-custodian may deposit and maintain
Investments in any Securities Depository, either directly or through one or more
Sub-subcustodians appointed by the Global Sub-custodian. Investments
held in a Securities Depository shall be held (a) subject to the agreement,
rules, statement of terms and conditions or other document or conditions
effective between the Securities Depository and the Global Sub-custodian or the
Sub-subcustodian, as the case may be, and (b) in an account for the Bank or in
bulk segregation in an account maintained for the non-proprietary assets of the
entity holding such Investments in the Depository. If market practice
or the rules and regulations of the Securities Depository prevent the Global
Sub-custodian, the Sub-subcustodian or (any agent of either) from holding its
client assets in such a separate account, the Global Sub-custodian, the
Sub-subcustodian or other agent shall as appropriate segregate such Investments
for the benefit of the Bank or for the benefit of clients of the Global
Sub-custodian generally on its own books.
5.2 Certificated
Assets. Investments which are certificated may be held in
registered or bearer form: (a) in the Global Sub-custodian's vault; (b) in the
vault of a Sub-subcustodian or agent of the Global Sub-custodian or a
Sub-subcustodian; or (c) in an account maintained by the Global Sub-custodian,
Sub-subcustodian or agent at a Securities Depository, all in accordance with
customary market practice in the jurisdiction in which any Investments are
held.
5.3 Registered
Assets. Investments which
are registered may be registered in the name of the Global Sub-custodian, a
Sub-subcustodian, or in the name of the Bank or a nominee for any of the
foregoing, and may be held in any manner set forth in Section 5.2 above with or
without any identification of fiduciary capacity in such
registration.
5.4 Book Entry
Assets. Investments which are represented by book-entry may be
so held in an account maintained by the Book-entry Agent on behalf of the Global
Sub-custodian, a Sub-subcustodian, an Agent of the Global Sub-custodian, or a
Securities Depository.
5.5 Replacement of
Lost Investments. In the event of a loss of Investments for
which loss the Global Sub-custodian is responsible under the terms of this
Agreement, the Global Sub-custodian shall replace such Investment, or
in the event that such replacement cannot be effected, the Global Sub-custodian
shall pay to the Bank the fair market value of such Investment based on the last
available price as of the close of business in the relevant market on the date
that a claim was first made to the Global Sub-custodian with respect to such
loss, or, such other amount as shall be agreed by the parties.
6. Administrative
Duties of the Global Sub-custodian. The Global Sub-custodian
shall perform the following administrative duties with respect to Investments of
the Bank or its Customers.
6.1 Purchase of
Investments. Pursuant to Instruction, Investments purchased for the
account of the Bank shall be paid for (a) against delivery thereof to the Global
Sub-custodian or a Sub-subcustodian, as the case may be, either directly or
through a Clearing Corporation or a Securities Depository (in accordance with
the rules of such Securities Depository or such Clearing Corporation), or (b)
otherwise in accordance with an Instruction, Applicable Law, generally accepted
trade practices, or the terms of the instrument representing such
Investment.
6.2 Sale of
Investments. Pursuant to Instruction, Investments sold for the
account of the Bank shall be delivered (a) against payment therefor in cash, by
check or by bank wire transfer, (b) by credit to the account of the Global
Sub-custodian or the applicable Sub-subcustodian, as the case may be, with a
Clearing Corporation or a Securities Depository (in accordance with the rules of
such Securities Depository or such Clearing Corporation), or (c) otherwise in
accordance with an Instruction, Applicable Law, generally accepted trade
practices, or the terms of the instrument representing
such Investment.
6.3 Delivery and
Receipt in Connection with Borrowings of the Bank or other Collateral and Margin
Requirements. Pursuant to Instruction, the Global
Sub-custodian may deliver or receive Investments or cash of the Bank in
connection with borrowings or loans by the Bank and other collateral and margin
requirements.
6.4 Futures and
Options. If, pursuant to an Instruction, the Global
Sub-custodian shall become a party to an agreement with the Bank and a futures
commission merchant regarding margin (Tri-Party Agreement), the
Global Sub-custodian shall (a) receive and retain, to the extent the same are
provided to the Global Sub-custodian, confirmations or other documents
evidencing the purchase or sale by the Bank of exchange-traded futures contracts
and commodity options, (b) when required by such Tri-Party Agreement, deposit
and maintain in an account opened pursuant to such Agreement (Margin Account), segregated
either physically or by book-entry in a Securities Depository for the benefit of
any futures commission merchant, such Investments as the Bank shall have
designated as initial, maintenance or variation "margin" deposits or other
collateral intended to secure the Bank's performance of its obligations under
the terms of any exchange-traded futures contracts and commodity options; and
(c) thereafter pay, release or transfer Investments into or out of the margin
account in accordance with the provisions of such Agreement.
Alternatively, the Global Sub-custodian may deliver Investments, in accordance
with an Instruction, to a futures commission merchant for purposes of margin
requirements in accordance with Rule 17f-6 under the 1940 Act. The
Global Sub-custodian shall in no event be responsible for the acts and omissions
of any futures commission merchant to whom Investments are delivered pursuant to
this Section; for the sufficiency of Investments held in any Margin Account; or,
for the performance of any terms of any exchange-traded futures contracts and
commodity options.
6.5 Contractual
Obligations and Similar Investments. From time to time, the
Bank's or Customers’ assets may include Investments that are not ownership
interests as may be represented by certificate (whether registered or bearer),
by entry in a Securities Depository or by Book-entry Agent, registrar or similar
agent for recording ownership interests in the relevant
Investment. If the Bank or its Customers shall at any time acquire
such Investments, including without limitation deposit obligations, loan
participations, repurchase agreements and derivative arrangements, the Global
Sub-custodian shall (a) receive and retain, to the extent the same are provided
to the Global Sub-custodian, confirmations or other documents evidencing the
arrangement; and (b) perform on the Bank's account in accordance with the terms
of the applicable arrangement, but only to the extent directed to do so by
Instruction. The Global Sub-custodian shall have no
responsibility for agreements running to the Bank or its Customers as to which
it is not a party other than to retain, to the extent the same are provided to
the Global Sub-custodian, documents or copies of documents evidencing the
arrangement and, in accordance with Instruction, to include such arrangements in
reports made to the Bank.
6.6 Exchange of
Securities. Unless otherwise directed by Instruction, the
Global Sub-custodian shall: (a) exchange securities held for the
account of the Bank for other securities in connection with any reorganization,
recapitalization, conversion, stock split, change of par value of shares or
similar event, and (b) deposit any such securities in accordance with the terms
of any reorganization or protective plan.
6.7 Surrender of
Securities. Unless otherwise directed by Instruction, the
Global Sub-custodian may surrender securities: (a) in temporary form for
definitive securities; (b) for transfer into the name of an entity allowable
under Section 5.3; and (c) for a different number of certificates or instruments
representing the same number of shares or the same principal amount of
indebtedness.
6.8 Rights, Warrants,
Etc. Pursuant to Instruction, the Global Sub-custodian shall
(a) deliver warrants, puts, calls, rights or similar securities to the issuer or
trustee thereof, or to any agent of such issuer or trustee, for purposes of
exercising such rights or selling such securities, and (b) deliver securities in
response to any tender offer.
6.9 Mandatory
Corporate Actions. Unless otherwise directed by Instruction,
the Global Sub-custodian shall: (a) comply with the terms of all mandatory or
compulsory exchanges, calls, tenders, redemptions or similar rights of
securities ownership affecting securities held on the Bank’s account and
promptly notify the Bank of such action, and (b) collect all stock dividends,
rights and other items of like nature with respect to such
securities.
6.10 Income
Collection. Unless otherwise directed by Instruction, the
Global Sub-custodian shall collect any amount due and payable to the Bank with
respect to Investments and promptly credit the amount collected to a Principal
or Agency Account; provided, however, that the Global Sub-custodian shall not be
responsible for: (a) the collection of amounts due and payable with respect to
Investments that are in default, or (b) the collection of cash or share
entitlements with respect to Investments that are not registered in the name of
the Global Sub-custodian or its Sub-subcustodians. The Global
Sub-custodian is hereby authorized to endorse and deliver any instrument
required to be so endorsed and delivered to effect collection of any amount due
and payable to the Bank with respect to Investments.
6.11 Corporate Action
Information. In fulfilling the duties set forth in Sections
6.6 through 6.10 above, the Global Sub-custodian shall provide to the Bank such
material information pertaining to a corporate action which the Global
Sub-custodian actually receives; provided that the Global Sub-custodian shall
not be responsible for the completeness or accuracy of such information.
Information relative to any pending corporate action made available to the Bank
via any of the services described in the Electronic and Online Services Schedule
shall constitute the delivery of such information by the Global Sub-custodian
hereunder. Any advance credit of cash or shares expected to be
received as a result of any corporate action shall be subject to actual
collection and may, when the Global Sub-custodian deems collection unlikely, be
reversed by the Global Sub-custodian.
6.12 Proxy
Materials. The Global Sub-custodian shall deliver, or cause to
be delivered, to the Bank, proxy forms, notices of meeting, and any other
notices or announcements materially affecting or relating to Investments
received by the Global Sub-custodian. Information relative to any
pending corporate action made available to the Bank via any of the services
described in the Electronic and Online Services Schedule shall constitute the
delivery of such information by the Global Sub-custodian hereunder.
6.13 Ownership
Certificates and Disclosure of the Bank's Interest. The Global
Sub-custodian is hereby authorized to execute on behalf of the Bank ownership
certificates, affidavits or other disclosure required under Applicable Law or
established market practice in connection with the receipt of income, capital
gains or other payments by the Bank with respect to Investments, or in
connection with the sale, purchase or ownership of Investments.
With
respect to securities issued in the United States of America, the Global
Sub-custodian [ ] may [ ] may not release the
identity of the Bank to an issuer which requests such information pursuant to
the Shareholder Communications Act of 1985 for the specific purpose of direct
communications between such issuer and the Bank. IF NO BOX IS
CHECKED, THE GLOBAL SUB-CUSTODIAN SHALL RELEASE SUCH
INFORMATION UNTIL IT RECEIVES CONTRARY INSTRUCTIONS FROM THE
BANK. With respect to securities issued outside of the United States
of America, information shall be released in accordance with law or custom of
the particular country in which such security is located.
6.14 Taxes. The
Global Sub-custodian shall, where applicable and to the extent practicable,
assist the Bank in the reclamation of taxes withheld on dividends and interest
payments received by the Bank. In the performance of its duties with
respect to tax withholding and reclamation, the Global Sub-custodian shall be
entitled to rely on the advice of counsel and upon information and advice
regarding the Bank’s and its Customers’ tax status that is received from or on
behalf of the Bank without duty of separate inquiry.
6.15 Other
Dealings. The Global Sub-custodian shall otherwise act as
directed by Instruction, including without limitation effecting the free
payments of moneys or the free delivery of securities, provided that such
Instruction shall indicate the purpose of such payment or delivery and that the
Global Sub-custodian shall record the party to whom the payment or delivery is
made.
6.16 Nondiscretionary
Details and Minor Expenses. The Global Sub-custodian shall
attend to all nondiscretionary details in connection with the sale or purchase
or other administration of Investments, except as otherwise directed by an
Instruction, and may make payments to itself or others for minor expenses of
administering Investments under this Agreement, provided that the Bank shall
have the right to request an accounting with respect to such expenses, and the
right to request a then current schedule of the customary fees and charges for
such services.
6.17 Use of
Agents. The Global Sub-custodian may at any time in its
discretion appoint (and may at any time remove) agents (other than
Sub-subcustodians) to carry out some or all of the administrative provisions of
this Agreement (Agents),
provided, however, that the appointment of an agent shall not relieve the Global
Sub-custodian of its administrative obligations under this
Agreement.
7. Cash Accounts,
Deposits and Money Movements. Subject to the terms and
conditions set forth in this Section 7, the Bank hereby authorizes the Global
Sub-custodian to open and maintain, with itself or with Sub-subcustodians, cash
accounts in United States Dollars, in such other currencies as are the
currencies of the countries in which the Bank on behalf of its Customers
maintains Investments or in such other currencies as the Bank shall from time to
time request by Instruction. Notwithstanding anything in this
Agreement to contrary effect, the Bank shall be liable as principal for any
overdrafts occurring in any cash accounts.
7.1 Types of Cash
Accounts. Cash
accounts opened on the books of the Global Sub-custodian (Principal Accounts) shall be
opened in the name of the Bank. Such accounts collectively shall be a
deposit obligation of the Global Sub-custodian and shall be subject to the terms
of this Section 7 and the general liability provisions contained in Section
9. Cash accounts opened on the books of a Sub-subcustodian may be
opened in the name of the Bank or the Global Sub-custodian or in the name of the
Global Sub-custodian for its customers generally (Agency Accounts). Such
deposits shall be obligations of the Sub-subcustodian and shall be treated as an
Investment of the Bank. Accordingly, the Global Sub-custodian shall
be responsible for exercising reasonable care in the administration of such
accounts but shall not be liable for their repayment in the event such
Sub-subcustodian, by reason of its bankruptcy, insolvency or otherwise, fails to
make repayment.
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7.1.1.
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Administrative
Accounts. In connection with the services provided
hereunder, the Global Sub-custodian is hereby directed to open cash
accounts on its books and records from time to time for the purposes of
receiving subscriptions and/or processing redemptions on behalf of the
Bank and/or Customers, and/or for the purposes of aggregating, netting
and/or clearing transactions (including, without limitation foreign
exchange, repurchase agreements, capital stock activity, expense payment)
or other administrative purposes, each on behalf of the Bank and/or
Customers (each an “Account”). Each such Account shall be
subject to the terms and conditions of this Agreement and the Bank shall
be liable for the satisfaction of its own obligations and the obligations
of Customers in connection with each
Account.
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7.2 Payments and
Credits with Respect to the Cash Accounts. The Global Sub-custodian
shall make payments from or deposits to any of the cash accounts in the course
of carrying out its administrative duties, including but not limited to income
collection with respect to Investments, and otherwise in accordance with
Instructions. The Global Sub-custodian and its Sub-subcustodians
shall be required to credit amounts to the cash accounts only when moneys are
actually received in cleared funds in accordance with banking practice in the
country and currency of deposit. Any credit made to any Principal or
Agency Account before actual receipt of cleared funds shall be provisional and
may be reversed by the Global Sub-custodian in the event such payment is not
actually collected. Unless otherwise specifically agreed in writing by the
Global Sub-custodian or any Sub-subcustodian, all deposits shall be payable only
at the branch of the Global Sub-custodian or Sub-subcustodian where the deposit
is made or carried.
7.3 Currency and
Related Risks. The Bank on behalf of its Customers bears risks
of holding or transacting in any currency, including any ▇▇▇▇ to market exposure
associated with a foreign exchange transaction undertaken with the Global
Sub-custodian. The Global Sub-custodian shall not be liable for
any loss or damage arising from the applicability of any law or regulation now
or hereafter in effect, or from the occurrence of any event, which may delay or
affect the transferability, convertibility or availability of any currency in
the country (a) in which such Principal or Agency Accounts are maintained or (b)
in which such currency is issued, and in no event shall the Global Sub-custodian
be obligated to make payment of a deposit denominated in a currency during the
period during which its transferability, convertibility or availability has been
affected by any such law, regulation or event. Without limiting the
generality of the foregoing, neither the Global Sub-custodian nor any
Sub-subcustodian shall be required to repay any deposit made at a foreign branch
of either the Global Sub-custodian or Sub-subcustodian if such branch cannot
repay the deposit due to a cause for which the Global Sub-custodian would not be
responsible in accordance with the terms of Section 9 of this Agreement unless
the Global Sub-custodian or such Sub-subcustodian expressly agrees in writing to
repay the deposit under such circumstances. All currency transactions
in any account opened pursuant to this Agreement are subject to exchange control
regulations of the United States and of the country where such currency is the
lawful currency or where the account is maintained. Any taxes, costs, charges or
fees imposed on the convertibility of a currency held by the Bank shall be for
the account of the Bank.
7.4 Foreign Exchange
Transactions. The Global
Sub-custodian shall, subject to the terms of this Section, settle foreign
exchange transactions (including contracts, futures, options and options on
futures) on behalf and for the account of the Bank with such currency brokers or
banking institutions, including Sub-subcustodians, as the Bank may direct
pursuant to Instructions. The Global Sub-custodian may act as
principal in any foreign exchange transaction with the Bank in accordance with
Section 7.4.2 of this Agreement. The obligations of the Global
Sub-custodian in respect of all foreign exchange transactions (whether or not
the Global Sub-custodian shall act as principal in such transaction) shall be
contingent on the free, unencumbered transferability of the currency transacted
on the actual settlement date of the transaction.
7.4.1 Third Party
Foreign Exchange Transactions. The Global Sub-custodian shall
process foreign exchange transactions (including without limitation contracts,
futures, options, and options on futures), where any third party acts
as principal counterparty to the Bank on the same basis it performs duties as
agent for the Bank with respect to any other of the Bank’s Customer’s
investments. Accordingly, the Global Sub-custodian shall only be responsible for
delivering or receiving currency on behalf of the Bank in respect of such
contracts pursuant to Instructions. The Global Sub-custodian shall not be
responsible for the failure of any counterparty (including any Sub-subcustodian)
in such agency transaction to perform its obligations thereunder. The Global
Sub-custodian (a) shall transmit cash and Instructions to and from the currency
broker or banking institution with which a foreign exchange contract or option
has been executed pursuant hereto, (b) may make free outgoing payments of cash
in the form of Dollars or foreign currency without receiving confirmation of a
foreign exchange contract or option or confirmation that the countervalue
currency completing the foreign exchange contract has been delivered or received
or that the option has been delivered or received, (c) may, in connection with
cash payments made to third party currency broker/dealers for settlement of the
Bank’s foreign exchange spot or forward transactions, foreign exchange swap
transactions and similar foreign exchange transactions, process settlements
using the facilities of CLS Bank according to CLS Bank’s standard terms, and (d)
shall hold all confirmations, certificates and other documents and agreements
received by the Global Sub-custodian and evidencing or relating to such foreign
exchange transactions in safekeeping. The Bank accepts full
responsibility for its use of third-party foreign exchange dealers and for
execution of said foreign exchange contracts and options and understands that
the Bank shall be responsible for any and all costs and interest charges which
may be incurred by the Bank or the Global Sub-custodian as a result of the
failure or delay of third parties to deliver foreign exchange.
7.4.2 Foreign Exchange
with the Global Sub-custodian as Principal. The Global
Sub-custodian as principal may undertake foreign exchange transactions with the
Bank as the Global Sub-custodian and the Bank may agree from time to
time. In this event, the foreign exchange transaction will be
performed in accordance with the particular agreement of the parties, or in the
event a principal foreign exchange transaction is initiated by Instruction in
the absence of specific agreement, the transaction will be performed in
accordance with the usual commercial terms of the Global
Sub-custodian. In the event that the Bank defaults on the
settlement of any such foreign exchange transaction with the Global
Sub-custodian, the Bank shall be liable for contracted currency of the
transaction together with any ▇▇▇▇ to market exposure associated with the
replacement purchase of the contracted currency undertaken with the Global
Sub-custodian.
7.5 Delays. If no event
of Force Majeure shall have occurred and be continuing and in the
event that a delay shall have been caused by the negligence or willful
misconduct of the Global Sub-custodian in carrying out an Instruction to credit
or transfer cash, the Global Sub-custodian shall be liable to the
Bank: (a) with respect to Principal Accounts, for interest to be
calculated at the rate customarily paid on such deposit and currency by the
Global Sub-custodian on overnight deposits at the time the delay occurs for the
period from the day when the transfer should have been effected until the day it
is in fact effected; and, (b) with respect to Agency Accounts, for interest to
be calculated at the rate customarily paid on such deposit and currency by the
Sub-subcustodian on overnight deposits at the time the delay occurs for the
period from the day when the transfer should have been effected until the day it
is in fact effected. The Global Sub-custodian shall not be liable for delays in
carrying out such Instructions to transfer cash which are not due to the Global
Sub-custodian's own negligence or willful misconduct.
7.6 Advances. If,
for any reason in connection with this Agreement the Global Sub-custodian or any
Sub-Subcustodian makes an Advance to facilitate settlement or otherwise for the
benefit of the Bank or its Customers (whether or not any Principal or Agency
Account shall be overdrawn either during, or at the end of, any Business Day),
the Bank hereby does:
7.6.1 acknowledge
that the Bank shall have no right, title or interest in or to any Investments
purchased with such Advance or proceeds of such Investments, and that any credit
to an account of Bank shall be provisional, until: (a) the debit of the
Principal or Agency Account by Global Sub-custodian for an amount equal to
Advance Costs; and/or (b) if such debit produces an overdraft in such account,
reimbursement to the Global Sub-custodian or Sub-subcustodian for the amount of
such overdraft;
7.6.2 acknowledge
that the Global Sub-custodian has an automatically perfected statutory security
interest in Investments purchased with any such Advance pursuant to
Section 9-206 of the Uniform Commercial Code as in effect in the State of
New York from time to time;
7.6.3 in
addition, in order to secure the obligations of the Bank to pay or perform any
and all obligations of the Bank pursuant to this Agreement, including without
limitation to repay any Advance made pursuant to this Agreement, grant to the
Global Sub-custodian a security interest in all Investments and proceeds thereof
(as defined in the Uniform Commercial Code as currently in effect in the State
of New York); and agree to take, and agree that the Global Sub-custodian may
take, in respect of the security interest referenced above, any further actions
that the Global Sub-custodian may reasonably require.
7.7 Global
Sub-custodian’s Rights. Neither the Global Sub-custodian nor
any Sub-subcustodian shall be obligated to make any Advance or to allow an
Advance to occur to the Bank, and in the event that the Global Sub-custodian or
any Sub-subcustodian does make or allow an Advance, any such Advance and any
transaction giving rise to such Advance shall be for the account and risk of the
Bank and shall not be deemed to be a transaction undertaken by the Global
Sub-custodian for its own account and risk. If such Advance shall
have been made or allowed by a Sub-subcustodian or any other person, the Global
Sub-custodian may assign all or part of its security interest referenced above
and any other rights granted to the Global Sub-custodian hereunder to such
Sub-subcustodian or other person. If the Bank shall fail to repay the
Advance Costs when due, the Global Sub-custodian or its assignee, as the case
may be, shall be entitled to a portion of the available cash balance in any
Agency or Principal Account equal to such Advance Costs, and the Bank authorizes
the Global Sub-custodian, on behalf of the Bank, to pay an amount equal to such
Advance Costs irrevocably to such Sub-subcustodian or other person, and to
dispose of any property in such Account to the extent necessary to make such
payment. Any Investments credited to accounts subject to this
Agreement created pursuant hereto shall be treated as financial assets credited
to securities accounts under Articles 8 and 9 of the Uniform Commercial Code as
in effect in the State of New York from time to time. Accordingly,
the Global Sub-custodian and any Sub-subcustodian shall have the rights and
benefits of a secured creditor that is a securities intermediary under such
Articles 8 and 9.
7.8 Integrated
Account. For purposes
hereof, deposits maintained in all Principal Accounts (whether or not
denominated in Dollars) shall collectively constitute a single and indivisible
current account with respect to the Bank's obligations to the Global
Sub-custodian, or its assignee, and balances in such Principal Accounts shall be
available for satisfaction of the Bank's obligations under this Section
7. The Global Sub-custodian shall further have a right of offset
against the balances in any Agency Account maintained hereunder to the extent
that the aggregate of all Principal Accounts is overdrawn.
8. Sub-subcustodians and
Securities Depositories. Subject to the provisions hereinafter
set forth in this Section 8, the Bank hereby authorizes the Global Sub-custodian
to utilize Securities Depositories to act on behalf of the Bank and to appoint
from time to time and to utilize Sub-subcustodians. With respect to securities
and cash held by a Sub-subcustodian, either directly or indirectly (including by
a Securities Depository or Clearing Corporation), notwithstanding any provisions
of this Agreement to the contrary, payment for securities purchased and delivery
of securities sold may be made prior to receipt of securities or payment,
respectively, and securities or payment may be received in a form, in accordance
with (a) governmental regulations, (b) rules of Securities Depositories and
Clearing Corporations, (c) generally accepted trade practice in the applicable
local market, (d) the terms and characteristics of the particular Investment, or
(e) the terms of Instructions.
8.1 Domestic
Subcustodians and Securities Depositories. The Global
Sub-custodian may deposit and/or maintain, either directly or through one or
more Agents appointed by the Global Sub-custodian, Investments of the Bank or
its Customers in any Securities Depository in the United States, including The
Depository Trust Company, provided such Depository meets applicable requirements
of the Federal Reserve Bank or of the Securities and Exchange Commission. The
Global Sub-custodian may, at any time, appoint any bank as defined in Section
2(a)(5) of the 1940 Act meeting the requirements of a custodian under Section
17(f) of the 1940 Act and the rules and regulations thereunder to act on behalf
of the Bank or its Customers as a Sub-subcustodian for purposes of holding
Investments of the Bank in the United States.
8.2 Foreign
Subcustodians and Securities Depositories. Unless instructed
otherwise by the Bank, the Global Sub-custodian may deposit and/or maintain
non-U.S. Investments of the Bank or its Customers in any non-U.S. Securities
Depository provided such Securities Depository meets the requirements of an
"eligible securities depository" under Rule 17f-7 promulgated under the 1940
Act, or any successor rule or regulation ("Rule 17f-7") or which by order of the
Securities and Exchange Commission is exempted therefrom. Prior
to the time that securities are placed with such depository, but subject to the
provisions of Section 8.2.4 below, the Global Subcustodian shall have prepared
an assessment of the custody risks associated with maintaining assets with the
Securities Depository and shall have established a system to monitor such risks
on a continuing basis in accordance with Section 8.5. Additionally,
the Global Sub-custodian may, from time to time, appoint (a) any bank, trust
company or other entity meeting the requirements of an “eligible foreign
custodian” under Rule
17f-5 or which by order of the Securities and Exchange Commission is exempted
therefrom, or (b) any bank as defined in Section 2(a)(5) of the 1940 Act meeting
the requirements of a custodian under Section 17(f) of the 1940 Act and the
rules and regulations thereunder, to act on behalf of the Bank or its Customers
as a Sub-subcustodian for purposes of holding Investments of the Bank and/or its
Customers outside the United States.
8.3 Review
of Sub-subcustodians. From time to time, the
Global Sub-custodian may agree to perform certain reviews of Sub-subcustodians
and of Sub-subcustodian Contracts at the Bank’s request. In such
event, the Global Sub-custodian's duties and obligations with respect to this
review will be performed in accordance with the terms of the attached
17f-5 Delegation Schedule to this Agreement.
8.4 Approval
of Foreign Sub-subcustodians. Unless and
except to the extent that the Bank has requested the Global Sub-custodian and
the Global Sub-custodian has accepted delegation of review of certain matters
concerning the appointment of Sub-subcustodians pursuant to Subsection 8.3, the
Global Sub-custodian shall, prior to the appointment of any Sub-subcustodian for
purposes of holding Investments of the Bank or its Customers outside the United
States, obtain written confirmation of the approval of the Bank with respect to
(a) the identity of a Sub-subcustodian, and (b) the Sub-subcustodian agreement
which shall govern such appointment, such approval to be signed by an Authorized
Person. An Instruction to open an account in a given country shall
comprise authorization of the Global Sub-custodian to hold assets in such
country in accordance with the terms of this Agreement. The
Global Sub-custodian shall not be required to make independent inquiry as to the
authorization of the Bank or its Customers to invest in such
country.
8.5 Monitoring and
Risk Assessment of Securities Depositories. Prior to the placement
of any assets of the Bank or its Customers with a non-U.S. Securities
Depository, the Global Sub-custodian: (a) shall provide to
the Bank an assessment of the custody risks associated with maintaining assets
within such Securities Depository; and (b) shall have established a system to
monitor the custody risks associated with maintaining assets with such
Securities Depository on a continuing basis and to promptly notify the Bank of
any material changes in such risk. In performing its duties
under this subsection, the Global Sub-custodian shall use reasonable care and
may rely on such reasonable sources of information as may be available including
but not limited to: (i) published ratings; (ii) information supplied
by a Sub-subcustodian that is a participant in such Securities Depository; (iii)
industry surveys or publications; (iv) information supplied by the depository
itself, by its auditors (internal or external) or by the relevant Foreign
Financial Regulatory Authority. It is acknowledged that information
procured through some or all of these sources may not be independently
verifiable by the Global Sub-custodian and that direct access to Securities
Depositories is limited under most circumstances. Accordingly, the Global
Sub-custodian shall not be responsible for errors or omissions in its duties
hereunder provided that it has performed its monitoring and assessment duties
with reasonable care. The risk assessment shall be provided to the
Bank by such means as the Global Sub-custodian shall reasonably
establish. Advices of material change in such assessment may be
provided by the Global Sub-custodian in the manner established as customary
between the Bank and the Global Sub-custodian for transmission of material
market information.
8.6 Responsibility
for Sub-subcustodians. Except as
provided in the last sentence of this Section 8.6, the Global Sub-custodian
shall be liable to the Bank for any loss or damage to the Bank caused by or
resulting from the acts or omissions of any Sub-subcustodian to the extent that
such acts or omissions would be deemed to be negligence, gross negligence or
willful misconduct in accordance with the terms of the relevant subcustodian
agreement under the laws, circumstances and practices prevailing in the place
where the act or omission occurred. The liability of the Global
Sub-custodian in respect of the countries and Sub- subcustodians so designated
by the Global Sub-custodian, from time to time, on the Global Custody Network
Listing, shall be subject to the additional condition that the Global
Sub-custodian actually recovers such loss or damage from the
Sub-subcustodian.
8.7 New
Countries. The Bank shall be responsible for informing the
Global Sub-custodian sufficiently in advance of a proposed investment which is
to be held in a country in which no Sub-subcustodian is authorized to act in
order that the Global Sub-custodian shall, if it deems appropriate to do so,
have sufficient time to establish a sub-subcustodial arrangement in accordance
herewith. In the event the Global Sub-custodian is unable to establish such
arrangements prior to the time the Investment is to be acquired, the Global
Sub-custodian is authorized to designate at its discretion a local safekeeping
Agent, and the use of such local safekeeping Agent shall be at the sole risk of
the Bank, and accordingly the Global Sub-custodian shall be responsible to the
Bank for the actions of the Agent if and only to the extent the Global
Sub-custodian shall have recovered from the Agent for any damages caused the
Bank by the Agent.
9. Responsibility of
the Global Sub-custodian. In performing its duties and
obligations hereunder, the Global Sub-custodian shall use reasonable care under
the facts and circumstances prevailing in the market where performance is
effected. Subject to the specific provisions of this Section, the
Global Sub-custodian shall be liable for any direct damage incurred by the Bank
in consequence of the Global Sub-custodian's negligence, bad faith or willful
misconduct. In no event shall the Global Sub-custodian be liable
hereunder for any special, indirect, punitive or consequential damages arising
out of, pursuant to or in connection with this Agreement even if the Global
Sub-custodian has been advised of the possibility of such damages. It is agreed
that the Global Sub-custodian shall have no duty to assess the risks inherent in
the Bank’s Customer’s investments or to provide investment advice with respect
to such Investments and that the Bank as principal shall bear any risks
attendant to particular Investments such as failure of counterparty or
issuer.
9.1 Limitations of
Performance. The Global
Sub-custodian shall not be responsible under this Agreement for any failure to
perform its duties, and shall not be liable hereunder for any loss or damage in
association with such failure to perform, for or in consequence of the following
causes:
9.1.1 Force
Majeure. Force
Majeure shall mean any circumstance or event which is beyond the
reasonable control of the Global Sub-custodian, a Sub-subcustodian or any agent
of the Global Sub-custodian or a Sub-subcustodian and which adversely affects
the performance by the Global Sub-custodian of its obligations hereunder, by the
Sub-subcustodian of its obligations under its sub-subcustody agreement or by any
other agent of the Global Sub-custodian or the Sub-subcustodian, including any
event caused by, arising out of or involving (a) an act of God, (b) accident,
fire, water or wind damage or explosion, (c) any computer, system or other
equipment failure or malfunction caused by any computer virus or the malfunction
or failure of any communications medium, (d) any interruption of the power
supply or other utility service, (e) any strike or other work stoppage, whether
partial or total, (f) any delay or disruption resulting from or reflecting the
occurrence of any Country or Sovereign Risk, (g) any disruption of, or
suspension of trading in, the securities, commodities or foreign exchange
markets, whether or not resulting from or reflecting the occurrence of any
Country or Sovereign Risk, (h) any encumbrance on the transferability of a
currency or a currency position on the actual settlement date of a foreign
exchange transaction, whether or not resulting from or reflecting the occurrence
of any Country or Sovereign Risk, or (i) any other cause similarly beyond the
reasonable control of the Global Sub-custodian.
9.1.2 Country
Risk. Country
Risk shall mean, with respect to the acquisition, ownership, settlement
or custody of Investments in a jurisdiction, all risks relating to, or arising
in consequence of, systemic and markets factors affecting the acquisition,
payment for or ownership of Investments including (a) the prevalence of crime
and corruption, (b) the inaccuracy or unreliability of business and financial
information, (c) the instability or volatility of banking and financial systems,
or the absence or inadequacy of an infrastructure to support such systems, (d)
custody and settlement infrastructure of the market in which such Investments
are transacted and held, (e) the acts, omissions and operation of any Securities
Depository, (f) the risk of the bankruptcy or insolvency of banking agents,
counterparties to cash and securities transactions, registrars or transfer
agents, and (g) the existence of market conditions which prevent the orderly
execution or settlement of transactions or which affect the value of
assets.
9.1.3 Sovereign
Risk. Sovereign
Risk shall mean, in respect of any jurisdiction, including the United
States of America, where an Investment is acquired or held hereunder or under a
subcustody agreement, (a) any act of war, terrorism, riot, insurrection or civil
commotion, (b) the imposition of any investment, repatriation or exchange
control restrictions by any Governmental Authority, (c) the confiscation,
expropriation or nationalization of any Investment or cash deposit by any
Governmental Authority, whether de facto or de jure, (d) any devaluation or
revaluation of the currency, (e) the imposition of taxes, levies or other
charges affecting Investments or cash deposits, (f) any change in the Applicable
Law, or (g) any other economic or political risk incurred or
experienced.
9.2. Limitations on
Liability. The Global
Sub-custodian shall not be liable for any loss, claim, damage or other liability
arising from the following causes:
9.2.1 Failure of Third
Parties. The failure of any third party
including: (a) any issuer of Investments or Book-entry Agent or other
agent of an issuer; (b) any counterparty with respect to any Investment,
including any issuer of exchange-traded or other futures, option, derivative or
commodities contract; (c) failure of an Investment Adviser or other Agent of the
Bank; or (d) failure of other third parties similarly beyond the control or
choice of the Global Sub-custodian.
9.2.2 Information
Sources. The Global Sub-custodian may rely upon information received from
issuers of Investments or agents of such issuers, information received from
Sub-subcustodians and from other commercially reasonable sources such as
commercial data bases and the like, but shall not be responsible for specific
inaccuracies in such information, provided that the Global Sub-custodian has
relied upon such information in good faith, or for the failure of any
commercially reasonable information provider.
9.2.3 Reliance on
Instruction. Action by the
Global Sub-custodian or the Sub-subcustodian in accordance with an Instruction,
even when such action conflicts with, or is contrary to any provision of, the
Bank's declaration of trust, certificate of incorporation, by-laws, or other
constitutive document, Applicable Law, or actions by the trustees, directors or
shareholders of the Bank.
9.2.4 Restricted
Securities. The limitations inherent in the rights,
transferability or similar investment characteristics of a given Investment of
the Bank.
10. Indemnification. The
Bank hereby indemnifies the Global Sub-custodian and each Sub-subcustodian, and
their respective agents, nominees and the partners, employees, officers and
directors, and agrees to hold each of them harmless from and against all claims
and liabilities, including counsel fees and taxes, incurred or assessed against
any of them in connection with the performance of this Agreement and any
Instruction unless such claim is the result of or arises out of the negligence,
bad faith or willful misconduct of Global Sub-custodian or such
Sub-subcustodian. If a Sub-subcustodian or any other person
indemnified under the preceding sentence gives written notice of claim to the
Global Sub-custodian, the Global Sub-custodian shall promptly give written
notice to the Bank. Not more than thirty days following the date of
such notice, unless the Global Sub-custodian shall be liable under Section 8
hereof in respect of such claim, the Bank will pay the amount of such claim or
reimburse the Global Sub-custodian for any payment made by the Global
Sub-custodian in respect thereof. BBH&Co. hereby
indemnifies Bank and each of its affiliates, subsidiaries, directors, officers,
and employees from and against all losses, claims, damages, costs and expenses
(including reasonable attorneys' fees and expenses) and liabilities asserted
against, imposed upon or incurred by Bank directly resulting from any negligent
action taken or omission by BBH&Co. in accordance with the term of this
Agreement or a material breach of any representation, warranty, covenant or
agreement provided in this Agreement.
11. Reports and
Records. The Global Sub-custodian shall:
11.1 create
and maintain records relating to the performance of its obligations under this
Agreement;
11.2 make
available to the Bank, its auditors, agents and employees, upon reasonable
request and during normal business hours of the Global Sub-custodian, all
records maintained by the Global Sub-custodian pursuant to paragraph 11.1 above,
subject, however, to all reasonable security requirements of the Global
Sub-custodian then applicable to the records of its custody customers generally;
and
11.3 make
available to the Bank all Electronic Reports; it being understood that the
Global Sub-custodian shall not be liable hereunder for the inaccuracy or
incompleteness thereof or for errors in any information included
therein.
11.4 The
Bank shall examine all records, however produced or transmitted, promptly upon
receipt thereof and notify the Global Sub-custodian promptly of any discrepancy
or error therein. Unless the Bank delivers written notice of any such
discrepancy or error within a reasonable time after its receipt thereof, such
records shall be deemed to be true and accurate.
11.5 The
Bank acknowledges that the Global Sub-custodian obtains information on the value
of assets from outside sources which may be utilized in certain reports made
available to the Bank. The Global Sub-custodian deems such sources to be
reliable but the Bank acknowledges and agrees that the Global Sub-custodian does
not verify such information nor make any representations or warranties as to its
accuracy or completeness and accordingly shall be without liability in selecting
and using such sources and furnishing such information.
12. Miscellaneous.
12.1 Powers of
Attorney, etc. The Bank will promptly execute and deliver,
upon request, such proxies, powers of attorney or other instruments as may be
necessary or desirable for the Global Sub-custodian to provide, or to cause any
Sub-subcustodian to provide, custody services.
12.2 Entire
Agreement. Except as specifically provided herein, this
Agreement including the 17f-5 Delegation Schedule, Appendix A or other schedules
constitutes the entire agreement between the Bank and the Global Sub-custodian
and supersedes any other oral or written agreements heretofore in effect between
the Bank and the Global Sub-custodian with respect to the subject matter
hereof. No provision of this Agreement may be amended or terminated
except by an instrument in writing signed by the party against which enforcement
of the amendment or termination is sought, provided, however, that an
Instruction shall, whether or not such Instruction shall constitute a waiver,
amendment or modification for purposes hereof, be deemed to have been accepted
by the Global Sub-custodian when it commences actions pursuant thereto or in
accordance therewith. In the event of a conflict between the terms of this
Agreement and the terms of a service level agreement or other operating
agreement in place between the parties from time to time, the terms of this
Agreement shall control.
12.3 Binding Effect;
Assignment. This Agreement shall be binding upon and shall
inure to the benefit of the Global Sub-custodian and the Bank and their
successors and assignees, provided that the Bank may not assign this Agreement
without the prior written consent of the Global
Sub-custodian. Each party agrees that only the parties to this
agreement and /or their successors in interest shall have a right to enforce the
terms of this Agreement. Accordingly, no client of the Bank or other
third party shall have any rights under this Agreement and such rights are
explicitly disclaimed by the parties.
12.4 GOVERNING LAW,
JURISDICTION AND VENUE. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH, AND BE GOVERNED BY THE LAWS OF, THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO THE CONFLICTS OF LAW OF SUCH STATE. THE PARTIES
HERETO IRREVOCABLY CONSENT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE
STATE OF NEW YORK AND THE FEDERAL COURTS LOCATED IN NEW YORK
CITY. THE BANK IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING IN ANY OF THE
AFORESAID COURTS AND ANY CLAIM THAT ANY SUCH ACTION OR PROCEEDING HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM. FURTHERMORE, EACH PARTY HERETO
IRREVOCABLY WAIVES ANY RIGHT THAT IT MAY HAVE TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
12.5 Notices. Notices
and other writings contemplated by this Agreement, other than Instructions,
shall be delivered (a) by hand, (b) by first class registered or certified mail,
postage prepaid, return receipt requested, (c) by a nationally recognized
overnight courier, or (d) by facsimile transmission, provided that any notice or
other writing sent by facsimile transmission shall also be mailed, postage
prepaid, to the party to whom such notice is addressed. All such
notices shall be addressed, as follows:
If to the Bank:
Attn:
Telephone:
( )
Facsimile:
( )
If to the Global
Sub-custodian: ▇▇▇▇▇
Brothers ▇▇▇▇▇▇▇▇ & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇
Attn:
Telephone: (▇▇▇)
▇▇▇-▇▇▇▇
Facsimile: (617)
772-XXXX,
or such
other address as the Bank or the Global Sub-custodian may have designated in
writing to the other.
12.6 Headings. Paragraph
headings included herein are for convenience of reference only and shall not
modify, define, expand or limit any of the terms or provisions
hereof.
12.7 Severability. In
the event any provision of this Agreement is determined to be void or
unenforceable, such determination shall not affect the remainder of this
Agreement, which shall continue to be in force.
12.8 Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed an original. This Agreement shall become effective when one or
more counterparts have been signed and delivered by the Bank and the Global
Sub-custodian. A photocopy or telefax of the Agreement shall be
acceptable evidence of the existence of the Agreement and the Global
Sub-custodian shall be protected in relying on the photocopy or telefax until
the Global Sub-custodian has received the original of the
Agreement.
12.9 Confidentiality. The
parties hereto agree that each shall treat confidentially the terms and
conditions of this Agreement and all information provided by each party to the
other regarding its business and operations. All confidential
information provided by a party hereto shall be used by any other party hereto
solely for the purpose of rendering or obtaining services pursuant to this
Agreement and, except as may be required in carrying out this Agreement, shall
not be disclosed to any third party without the prior consent of such providing
party. The foregoing shall not be applicable to any information that
is publicly available when provided or thereafter becomes publicly available
other than through a breach of this Agreement, or that is required to be
disclosed by or to any bank examiner of the Global Sub-custodian or any
Sub-subcustodian, any Regulatory Authority, any auditor of the parties hereto,
or by judicial or administrative process or otherwise by Applicable
Law.
12.10 Tape-recording. The
Bank on behalf of itself and its Customers authorizes the Global Sub-custodian
to tape record any and all telephonic or other oral instructions given to the
Global Sub-custodian by or on behalf of the Bank, including from any Authorized
Person. This authorization will remain in effect until and unless
revoked by the Bank in writing. The Bank further agrees to solicit
valid written or other consent from any of its employees with respect to
telephone communications to the extent such consent is required by Applicable
Law. Such tapes shall be available to the Bank for review, with
reasonable notice, for a period of one (1) year after recording.
12.11 Counsel/Certified
Public Accountant. In fulfilling its
duties hereunder, the Global Sub-custodian shall be entitled to receive and act
upon the advice of (i) counsel and/or a certified public
accountant regularly retained by the Global Sub-custodian in respect
of such matters, (ii) counsel and/or a certified public accountant for the Bank
or (iii) such counsel or certified public accountant as the Bank and the Global
Sub-custodian may agree upon, with respect to all matters, and the Global
Sub-custodian shall be without liability for any action reasonably taken or
omitted pursuant to such advice.
12.12 Conflict. Nothing
contained in this Agreement shall prevent the Global Sub-custodian and its
associates from (i) dealing as a principal or an intermediary in the sale,
purchase or loan of the Bank’s Customer’s investments to, or from the Global
Sub-custodian or its associates; (ii) acting as a Global Sub-custodian, a
Sub-subcustodian, a trustee, an agent, securities dealer, an investment manager
or in any other capacity for any other client whose interests may be adverse to
the interest of the Bank; or (iii) buying, holding, lending, and dealing in any
way in any assets for the benefit of its own account, or for the account of any
other client whose interests may be adverse to the Bank notwithstanding that the
same or similar assets may be held or dealt in by, or for the account of the
Bank by the Global Sub-custodian. The Bank hereby voluntarily
consents to, and waives any potential conflict of interest between the Global
Sub-custodian and/or its associates and the Bank, and agrees that:
12.12.1 the
Global Sub-custodian’s and/or its associates’ engagement in any such transaction
shall not disqualify the Global Sub-custodian from continuing to perform as the
Global Sub-custodian of the Bank under this Agreement;
12.12.2 the
Global Sub-custodian and/or its associates shall not be under any duty to
disclose any information in connection with any such transaction to the
Bank;
12.12.3 the
Global Sub-custodian and/or its associates shall not be liable to account to the
Bank for any profits or benefits made or derived by or in connection with any
such transaction; and
12.12.4 the
Bank shall use all reasonable efforts to disclose this provision, among other
provisions in this Agreement, to its Customers.
This
waiver shall not insulate BBH&Co. from liability for engaging in
transactions on the behalf of others which utilize unauthorized information
obtained by BBH&Co. from the Banks and its use negatively impacts the
Bank.
13. Definitions. The
following defined terms will have the respective meanings set forth
below.
13.1 Advance(s)
shall mean any extension of credit by or through the Global Sub-custodian or by
or through any Sub-subcustodian and shall include, without limitation, amounts
due to the Global Sub-custodian as the principal counterparty to any foreign
exchange transaction with the Bank as described in Section 7.4.2 hereof, or paid
to third parties for account of the Bank or in discharge of any expense, tax or
other item payable by the Bank.
13.2 Advance Costs
shall mean any Advance, interest on the Advance and any related expenses,
including without limitation any ▇▇▇▇ to market loss of the Global Sub-custodian
or Sub-subcustodian on any Investment to which Section 7.6.1
applies.
13.3 Agency
Account(s) shall mean any deposit account opened on the books of a
Sub-subcustodian or other banking institution in accordance with Section 7.1
hereof.
13.4 Agent(s)
shall have the meaning set forth in the last section of Section 6
hereof.
13.5 Applicable
Law shall mean with respect to each jurisdiction, all (a) laws, statutes,
treaties, regulations, guidelines (or their equivalents); (b) orders,
interpretations, licenses and permits; and (c) judgments, decrees, injunctions,
writs, orders and similar actions by a court of competent jurisdiction,
compliance with which is required or customarily observed in such
jurisdiction.
13.6 Authorized
Person(s) shall mean any person or entity authorized to give Instructions
on behalf of the Bank in accordance with Section 4.1 hereof.
13.7 Book-entry
Agent shall mean an entity acting as agent for the issuer of Investments
for purposes of recording ownership or similar entitlement to Investments,
including without limitation a transfer agent or registrar.
13.8 Clearing
Corporation shall mean any entity or system established for purposes of
providing securities settlement and movement and associated functions for a
given market.
13.9 Delegation
Schedule shall mean any separate schedule entered into between the Global
Sub-custodian and the Bank or its authorized representative with respect to
certain matters concerning the appointment and administration of
Sub-subcustodians.
13.10 Electronic and
Online Services Schedule shall mean any separate agreement entered into
between the Global Sub-custodian and the Bank or its authorized representative
with respect to certain matters concerning certain electronic and online
services as described therein and as may be made available from time to time by
the Global Sub-custodian to the Bank.
13.11 Electronic
Reports shall mean any reports prepared by the Global Sub-custodian and
remitted to the Bank or its authorized representative via the internet or
electronic mail.
13.12 Foreign Custody
Manager shall mean the Global Sub-custodian acting as a delegate for the
Bank and not for the Bank’s Customers.
13.13 Foreign Financial
Regulatory Authority shall have the meaning given by Section 2(a)(50) of
the ▇▇▇▇ ▇▇▇.
13.14 Funds Transfer
Services Schedule shall mean any separate agreement entered into between
the Global Sub-custodian and the Bank or its authorized representative with
respect to certain matters concerning the processing of payment orders from
Principal Accounts of the Bank.
13.15 Global Custody
Network Listing shall mean the Countries and Sub-subcustodians approved
for Investments in non-U.S. Markets.
13.16 Instruction(s)
shall have the meaning assigned in Section 4 hereof.
13.17 Investment(s)
shall mean any investment asset of the Bank and/or its Customers, including
without limitation: securities, bonds, notes, and debentures as well as
receivables, derivatives, contractual rights or entitlements and other
intangible assets, but shall not include any Principal Account.
13.18 Investment
Advisor shall mean any person or entity who is an Authorized Person to
give Instructions with respect to the investment and reinvestment of the Bank’s
Customer’s investments.
13.19 Margin Account
shall have the meaning set forth in Section 6.4 hereof.
13.20 Principal
Account(s) shall mean deposit accounts of the Bank carried on
the books of BBH&Co. as principal in accordance with Section 7
hereof.
13.21 Safekeeping
Account shall mean an account established on the books of the Global
Sub-custodian or any Sub-subcustodian for purposes of segregating the interests
of the Bank (or clients of the Global Sub-custodian or Sub-subcustodian) from
the assets of the Global Sub-custodian or any Sub-subcustodian.
13.22 Securities
Depository shall mean a central or book entry system or agency
established under Applicable Law for purposes of recording the ownership and/or
entitlement to investment securities for a given market.
13.23 Sub-subcustodian(s)
shall mean each foreign bank appointed by the Global Sub-custodian pursuant to
Section 8 hereof, but shall not include Securities Depositories.
13.24 Tri-Party
Agreement shall have the meaning set forth in Section 6.4
hereof.
13.25 1940 Act
shall mean the Investment Company Act of 1940.
14. Compensation. The
Bank agrees to pay to the Global Sub-custodian (a) a fee in an amount set forth
in the fee letter between the Bank and the Global Sub-custodian in effect on the
date hereof or as amended from time to time, and (b) all out-of-pocket expenses
incurred by the Global Sub-custodian, including the fees and expenses of all
Sub-subcustodians, and payable from time to time. Amounts payable by
the Bank under and pursuant to this Section 14 shall be payable by ACH transfer
to the Global Sub-custodian at BBH&Co. in New York, New York.
15. Termination. This
Agreement may be terminated by either party in accordance with the provisions of
this Section. The provisions of this Agreement and any other rights
or obligations incurred or accrued by any party hereto prior to termination of
this Agreement shall survive any termination of this Agreement.
15.1 Term, Notice and
Effect. This Agreement shall have an initial term of three (3)
years from the date hereof. Thereafter, this Agreement shall
automatically renew for successive one (1) year periods unless either party
terminates this Agreement by written notice effective no sooner than
seventy-five (75) days following the date that notice to such effect
shall be delivered to the other party at its address set forth in Section 12.5
hereof. Notwithstanding the foregoing provisions, either party may
terminate this Agreement at any time (a) for cause, which is a material breach
of the Agreement not cured within 60 days, in which case
termination shall be effective upon written receipt of notice by the
non-terminating party, or (b) upon thirty (30) days written notice to the other
party in the event that the either party is adjudged bankrupt or insolvent, or
there shall be commenced against such party a case under any applicable
bankruptcy, insolvency, or other similar law now or hereafter in
effect.
15.2 Notice and
Succession. In the event a termination notice is given
by a party hereto, all reasonable costs and expenses associated with any
required systems, facilities, procedures, personnel, and other resourced
modifications as well as the movement of records and materials and the
conversion thereof shall be paid by the company for which Services shall cease
to be performed hereunder. Furthermore, to the extent that it appears
impracticable given the circumstances to effect an orderly delivery of the
necessary and appropriate records of BBH to a successor within the time
specified in the notice of termination as aforesaid, BBH and the Company agree
that this Agreement shall remain in full force and effect for such reasonable
period as may be required to complete necessary arrangements with a
successor.
15.3 Successor Global
Sub-custodian. In the event of
the appointment of a successor Global Sub-custodian, it is agreed that the
Investments of the Bank held by the Global Sub-custodian or any Sub-subcustodian
shall be delivered to the successor Global Sub-custodian in accordance with
reasonable Instructions. The Global Sub-custodian agrees to cooperate
with the Bank in the execution of documents and performance of other actions
necessary or desirable in order to facilitate the succession of the new Global
Sub-custodian. If no successor Global Sub-custodian shall be
appointed, the Global Sub-custodian shall in like manner transfer the Bank’s
Customer’s investments in accordance with Instructions.
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15.4
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Delayed
Succession. If no Instruction has been given as of the
effective date of termination, Global Sub-custodian may at any time on or
after such termination date and upon ten (10) consecutive calendar days
written notice to the Bank either (a) deliver the Investments of the Bank
held hereunder to the Bank at the address designated for receipt of
notices hereunder; or (b) deliver any Investments held hereunder to a bank
or trust company having a capitalization of $2M equivalent and operating
under the Applicable Law of the jurisdiction where such Investments are
located, such delivery to be at the risk of the Bank. In the
event that Investments or moneys of the Bank remain in the custody of the
Global Sub-custodian or its Sub-subcustodians after the date of
termination owing to the failure of the Bank to issue Instructions with
respect to their disposition or owing to the fact that such disposition
could not be accomplished in accordance with such Instructions despite
diligent efforts of the Global Sub-custodian, the Global Sub-custodian
shall be entitled to compensation for its services with respect to such
Investments and moneys during such period as the Global Sub-custodian or
its Sub-subcustodians retain possession of such items and the provisions
of this Agreement shall remain in full force and effect until disposition
in accordance with this Section is
accomplished.
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16. Compliance
Policies and Procedures. To assist the Bank in complying with
Rule 38a-1 of the 1940 Act, BBH&Co. represents that it has adopted written
policies and procedures reasonably designed to prevent violation of the federal
securities laws in fulfilling its obligations under the Agreement and that it
has in place a compliance program to monitor its compliance with those policies
and procedures. BBH&Co will upon request provide the Bank with information
about our compliance program as mutually agreed.
IN
WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be duly
executed as of the date first above written.
The
undersigned acknowledges that (I/we) have received a copy of this
document.
▇▇▇▇▇
BROTHERS ▇▇▇▇▇▇▇▇ &
CO. THE
HUNTINGTON NATIONAL BANK
By:
__________________________________ By:
________________________________
Name: Name:
Title: Title:
Date: Date:
▇▇▇▇▇
Brothers ▇▇▇▇▇▇▇▇ & Co. (“BBH&Co.”) is a limited partnership organized
under the laws of the United States of America (“US”) and is subject to the US
Treasury Regulations set forth under ▇▇ ▇▇▇ ▇▇▇, et seq. BBH&Co.
may not establish any relationship with any Prohibited Person or Entity as such
term is defined under the regulations. No customer of BBH&Co. may
be owned or controlled by an entity or person: (i) that is listed in the Annex
to, or is otherwise subject to the provisions of Executive Order 13224, issued
on September 24, 2001 (“EO13224”) <▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇▇/▇▇▇▇/▇▇▇▇▇▇▇▇/▇▇▇▇▇▇/▇▇▇▇▇▇.▇▇▇>;
(ii) whose name appears on the United States Treasury Department’s Office of
Foreign Assets Control (“OFAC”) most current list of “Specifically Designated
National and Blocked Persons” (which list may be published from time to time in
various mediums including, but not limited to, the OFAC website; (iii) who
commits, threatens to commit or supports “terrorism”, as such term is defined in
EO13224; or (iv) who is otherwise affiliated with any entity or person listed
above (any and all parties or persons described in clauses (i) through (iv)
above are herein referred to as a “Prohibited Person”).
FUNDS
TRANSFER SERVICES SCHEDULE TO GLOBAL SUB-CUSTODIAN AGREEMENT
1. Execution of Payment
Orders. ▇▇▇▇▇ Brothers ▇▇▇▇▇▇▇▇ & Co. (the Global Sub-custodian) is hereby
instructed by The Huntington National Bank (the Bank) on behalf of the Funds
listed on Appendix A to execute each payment order, whether denominated in
United States dollars or other applicable currencies, received by the Global
Subcustodian in the Bank’s name as sender and authorized and confirmed by an
Authorized Person as defined in the Global Sub-custodian Agreement dated as of
______________, 2008 by and between the Global Sub-custodian and the Bank, as
amended or restated from time thereafter (the Agreement), provided that the
Bank has sufficient available funds on deposit in a Principal Account as defined
in the Agreement and provided that the order (i) is received by the Global
Sub-custodian in the manner specified in this Funds Transfer Services Schedule
or any amendment hereafter; (ii) complies with any written instructions and
restrictions of the Bank as set forth in this Funds Transfer Services Schedule
or any amendment hereafter; (iii) is authorized by the Bank or is verified by
the Global Sub-custodian in compliance with a security procedure set forth in
Paragraph 2 below for verifying the authenticity of a funds transfer
communication sent to the Global Sub-custodian in the name of the Bank or for
the detection of errors set forth in any such communication; and (iv) contains
sufficient data to enable the Global Sub-custodian to process such
transfer.
2. Security
Procedure. The Bank hereby elects to use the procedure
selected below as its security procedure (the Security Procedure). The
Security Procedure will be used by the Global Sub-custodian to verify the
authenticity of a payment order or a communication amending or canceling a
payment order. The Global Sub-custodian will act on instructions received
provided the instruction is authenticated by the Security Procedure. The Bank
agrees and acknowledges in connection with (i) the size, type and frequency of
payment orders normally issued or expected to be issued by the Bank to the
Global Sub-custodian, (ii) all of the security procedures offered to the Bank by
the Global Sub-custodian, and (iii) the usual security procedures used by
customers and receiving banks similarly situated, that authentication through
the Security Procedure shall be deemed commercially reasonable for the
authentication of all payment orders submitted to the Global
Sub-custodian. The Bank hereby elects (please choose one) the
following Security Procedure as described below:
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BIDS and BIDS
Worldview Payment Products. BIDS and BIDS Worldview
Payment Products, are on-line payment order authorization facilities with
built-in authentication procedures. The Global Sub-custodian and the Bank
shall each be responsible for maintaining the confidentiality of passwords
or other codes to be used by them in connection with BIDS. The Global
Sub-custodian will act on instructions received through BIDS without duty
of further confirmation unless the Bank notifies the Global Sub-custodian
that its password is not secure.
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SWIFT. The
Global Sub-custodian and the Bank shall comply with SWIFT’s authentication
procedures. The Global Sub-custodian will act on instructions received via
SWIFT provided the instruction is authenticated by the SWIFT
system.
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Computer
Transmission. The Global Sub-custodian is able to accept
transmissions sent from the Bank’s computer facilities to the Global
Sub-custodian’s computer facilities provided such transmissions are
encrypted and digitally certified or are otherwise authenticated in a
reasonable manner based on available technology. Such
procedures shall be established in an operating protocol between the
Global Sub-custodian and the Bank.
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Telefax
Instructions. A payment order transmitted to the Global
Sub-custodian by telefax transmission shall transmitted by the Bank to a
telephone number specified from time to time by the Global Sub-custodian
for such purposes. If it detects no discrepancies, the Global
Sub-custodian will follow one of the procedures
below:
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1.
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If
the telefax requests a repetitive payment order, the Global Sub-custodian
may call the Bank at its last known telephone number, request to speak to
the Bank or Authorized Person, and confirm the authorization and details
of the payment order (a Callback);
or
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2.
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If
the telefax requests a non-repetitive order, the Global Sub-custodian will
perform a Callback.
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All faxes
must be accompanied by a fax cover sheet which indicates the sender’s name, Bank
name, telephone number, fax number, number of pages, and number of transactions
or instructions attached.
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Telephonic. A
telephonic payment order shall be called into the Global Sub-custodian at
the telephone number designated from time to time by the Global
Sub-custodian for that purpose. The caller shall identify herself/himself
as an Authorized Person. The Global Sub-custodian shall obtain
the payment order data from the caller. The Global
Sub-custodian will follow one of the procedures
below:
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1.
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If
a telephonic repetitive payment order, the Global Sub-custodian may
perform a Callback; or
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2.
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If
a telephonic non-repetitive payment order, the Global Sub-custodian will
perform a Callback.
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In the
event the Bank chooses a procedure which is not a Security Procedure as
described above, the Bank agrees to be bound by any payment order (whether or
not authorized) issued in its name and accepted by the Global Sub-custodian in
compliance with the procedure selected by the Bank.
3. Rejection of Payment
Orders. The
Global Sub-custodian shall give the Bank timely notice of the Global
Sub-custodian ‘s rejection of a payment order. Such notice may be given in
writing or orally by telephone, each of which is hereby deemed commercially
reasonable. In the event the Global Sub-custodian fails to execute a
properly executable payment order and fails to give the Bank notice of the
Global Sub-custodian ‘s non-execution, the Global Sub-custodian shall be liable
only for the Bank’s actual damages and only to the extent that such damages are
recoverable under UCC 4A (as defined in Paragraph 7
below). Notwithstanding anything in this Funds Transfer Services
Schedule and the Agreement to the contrary, the Global Sub-custodian shall in no
event be liable for any consequential or special damages under this Funds
Transfer Services Schedule, whether or not such damages relate to services
covered by UCC 4A, even if the Global Sub-custodian has been advised of the
possibility of such damages. Whenever compensation in the form of interest is
payable by the Global Sub-custodian to the Bank pursuant to this Funds Transfer
Services Schedule, such compensation will be payable in accordance with UCC
4A.
4. Cancellation of Payment
Orders. The Bank may cancel a payment order but the
Global Sub-custodian shall have no liability for the Global Sub-custodian‘s
failure to act on a cancellation instruction unless the Global Sub-custodian has
received such cancellation instruction at a time and in a manner affording the
Global Sub-custodian reasonable opportunity to act prior to the Global
Sub-custodian ‘s execution of the order. Any cancellation shall be
sent and confirmed in the manner set forth in Paragraph 2 above.
5. Responsibility for the
Detection of Errors and Unauthorized Payment
Orders. Except as may be provided, the Global
Sub-custodian is not responsible for detecting any Bank error contained in any
payment order sent by the Bank to the Global Sub-custodian. In the event that
the Bank’s payment order to the Global Sub-custodian either (i) identifies the
beneficiary by both a name and an identifying or bank account number and the
name and number identify different persons or entities, or (ii) identifies any
bank by both a name and an identifying number and the number identifies a person
or entity different from the bank identified by name, execution of the payment
order, payment to the beneficiary, cancellation of the payment order or actions
taken by any bank in respect of such payment order may be made solely on the
basis of the number. The Global Sub-custodian shall not be liable for interest
on the amount of any payment order that was not authorized or was erroneously
executed unless the Bank so notifies the Global Sub-custodian within thirty (30)
business days following the Bank’s receipt of notice that such payment order had
been processed. If a payment order in the name of the Bank and
accepted by the Global Sub-custodian was not authorized by the Bank, the
liability of the parties will be governed by the applicable provisions of UCC
4A.
6. Laws and
Regulations. The rights and obligations of the Global
Sub-custodian and the Bank with respect to any payment order executed pursuant
to this Funds Transfer Services Schedule will be governed by any applicable
laws, regulations, circulars and funds transfer system rules, the laws and
regulations of the United States of America and of other relevant countries
including exchange control regulations and limitations on dealings or other
sanctions, and including without limitation those sanctions imposed under the
law of the United States of America by the Office of Foreign Assets
Control. Any taxes, fines, costs, charges or fees imposed by relevant
authorities on such transactions shall be for the account of the
Bank.
7. Miscellaneous. All
accounts opened by the Bank or its authorized agents at the Global Sub-custodian
subsequent to the date hereof shall be governed by this Funds Transfer
Schedule. All terms used in this Funds Transfer Services Schedule
shall have the meaning set forth in Article 4A of the Uniform Commercial Code as
currently in effect in the State of New York (UCC 4A) unless otherwise set
forth herein. The terms and conditions of this Funds Transfer Services Schedule
are in addition to, and do not modify or otherwise affect, the terms and
conditions of the Agreement and any other agreement or arrangement between the
parties hereto.
8. Indemnification. The
Global Sub-custodian does not recommend the sending of instructions by telefax
or telephonic means as provided in Paragraph 2. BY ELECTING TO SEND INSTRUCTIONS BY
TELEFAX OR TELEPHONIC MEANS, THE BANK AGREES TO INDEMNIFY THE GLOBAL
SUB-CUSTODIAN AND ITS PARTNERS,
OFFICERS AND EMPLOYEES FOR ALL LOSSES THEREFROM UNLESS SUCH LOSSES ARE THE
RESULT OF THE NEGLIGENCE, BAD FAITH OR WILLFUL MISCONDUCT OF GLOBAL
SUB-CUSTODIAN.
_____________________________________________
OPTIONAL: The
Global Sub-custodian will perform a Callback if instructions are sent by telefax
or telephonic means as provided in Paragraph 2. THE BANK MAY, AT ITS OWN RISK AND BY
HEREBY AGREEING TO INDEMNIFY THE GLOBAL SUB-CUSTODIAN AND ITS PARTNERS, OFFICERS
AND EMPLOYEES FOR ALL LOSSES THEREFROM, ELECT TO WAIVE A CALLBACK BY THE
CUSTODIAN BY INITIALLING HERE:____
_____________________________________________
The
undersigned acknowledges that (I/we) have received a copy of this
document.
|
Accepted
and agreed:
|
▇▇▇▇▇
BROTHERS ▇▇▇▇▇▇▇▇ &
CO. THE
HUNTINGTON NATIONAL BANK
By:
__________________________________ By:
________________________________
Name: Name:
Title: Title:
Date: Date:
ELECTRONIC
AND ON-LINE SERVICES
SCHEDULE
This
Electronic and On-Line Services Schedule (this Schedule) to the Global
Sub-custodian Agreement dated as of _____________________(as amended from time
to time hereafter, the Agreement) by and between
▇▇▇▇▇ Brothers ▇▇▇▇▇▇▇▇ & Co. (the Global Sub-custodian) and
The Huntington National Bank (the Bank), provides general
provisions governing the Bank’s use of and access to the Services (as
hereinafter defined) provided to the Bank by the Global Sub-custodian via the
Internet (at ▇▇▇.▇▇▇▇▇.▇▇▇ or such other URL as the
Global Sub-custodian may instruct the
Bank to use to
access the Global Sub-custodian’s products) and via a
direct dial-up connection between the Global Sub-custodian’s and the
Bank’s computers, as of ________________, _____, 2008 (the Effective Date). Use of the
Services constitutes acceptance of the terms and conditions of this Schedule,
any Appendices hereto, the Terms and Conditions posted on the Global
Sub-custodian’s web site, and any terms and conditions specifically governing a
particular Service or the Global Sub-custodian’s other products, which may be
set forth in the Agreement or in a separate related agreement (collectively, the
Related
Agreements).
|
1.
|
General
Terms.
|
The Bank
will be granted access to the Global Sub-custodian’s suite of online products,
which may include, but shall not be limited to the following services via the
Internet or dial-up connection (each separate service is a Service; collectively referred
to as the Services):
|
1.1.
|
BIDS®
and BIDS WorldView, a system for effectuating securities and fund trade
instruction and execution, processing and handling instructions, and for
the input and retrieval of other
information;
|
|
1.2.
|
F/X
WorldView, a system for executing foreign exchange
trades;
|
|
1.3.
|
Fund
WorldView, a system for receiving fund and prospectus
information;
|
|
1.4.
|
BBHCOnnect,
a system for placing securities trade instructions and following the
status and detail of trades;
|
|
1.5.
|
ActionViewSM,
a system for receiving certain corporate action
information;
|
|
1.6.
|
Risk
View, an interactive portfolio risk analysis tool;
and
|
|
1.7.
|
Such
other services as the Global Sub-custodian shall from time to time
offer.
|
The
Global Sub-custodian does not guarantee the accuracy, timeliness and
completeness of on-line account information such as holdings and transaction
information provided.
|
2.
|
Security /
Passwords.
|
|
2.1.
|
A
digital certificate and/or an encryption key may be required to access
certain Services. The Bank may apply for a digital certificate
and/or an encryption key by following the procedures set forth at ▇▇▇▇://▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇/. The Bank also will
need an identification code (ID) and password(s)
(Password) to
access the Services.
|
|
2.2.
|
The
Bank agrees to safeguard the Bank’s digital certificate and/or encryption
key, ID, and Password and not to give or make available, intentionally or
otherwise, the Bank’s digital certificate, ID, and/or Password to any
unauthorized person. The Bank must immediately notify the
Custodian in writing if the Bank believes that the Bank’s digital
certificate and/or encryption key, Password, or ID has been compromised or
if the Bank suspects unauthorized access to the Bank’s account
by means of the Services or otherwise, or when a person to whom a digital
certificate and/or an encryption key, Password, or ID has been assigned
leaves or is no longer permitted to access the
Services.
|
|
2.3.
|
The
Global Sub-custodian will not be responsible for any breach of security,
or for any unauthorized trading or theft by any third party, caused by the
Bank’s failure (be it intentional, unintentional, or negligent) to
maintain the confidentiality of the Bank’s ID and/or Password
and/or the security of the Bank’s digital certificate and/or
encryption key.
|
|
3.
|
Instructions.
|
|
3.1.
|
Instructions
under this Schedule shall be provided as designated in the Related
Agreements
|
|
3.2.
|
The
following additional provisions apply to Instructions provided via the
Services:
|
|
a.
|
Instructions
sent by electronic mail will not be accepted or acted
upon.
|
|
b.
|
The
Bank authorizes the Global Sub-custodian to act upon Instructions received
through the Services utilizing the Bank’s digital certificate, ID, and/or
Password as though they were duly authorized written instructions, without
any duty of verification or inquiry on the Global Sub-custodian’s part,
and agree to hold the Global Sub-custodian harmless for any losses the
Bank experiences as a result.
|
|
c.
|
From
time to time, the temporary unavailability of third party
telecommunications or computer systems required by the Services may result
in a delay in processing Instructions. In such an event, the
Global Sub-custodian shall not be liable to the Bank or any third party
for any liabilities, losses, claims, costs, damages, penalties, fines,
obligations, or expenses of any kind (including without limitation,
reasonable attorneys', accountants', consultants', or experts' fees and
disbursements) that the Bank experiences due to such a
delay.
|
|
4.
|
Electronic
Documents.
|
The
Global Sub-custodian may make periodic statements, disclosures, notices, and
other documents available to the Bank electronically, and, subject to any
delivery and receipt verification procedures required by law, the Bank agrees to
receive such documents electronically and to check the statements for
accuracy. If the Bank believes any such statement contains incorrect
information, the Bank must follow the procedures set forth in the Related
Agreement(s).
|
5.
|
Malicious
Code.
|
The Bank
understands and agrees that it will be responsible for the introduction (by the
Bank, the Bank’s employees, agents, or representatives) into the
Services, whether intentional or unintentional, of (i) any virus or other code,
program, or sub-program that damages or interferes with the operation of the
computer system containing the code, program or sub-program, or halts, disables,
or interferes with the operation of the Services themselves; or (ii) any device,
method, or token whose knowing or intended purpose is to permit any person to
circumvent the normal security of the Services or the system containing the
software code for the Services (Malicious
Code). The Bank agrees to take all necessary actions and
precautions to prevent the introduction and proliferation of any Malicious Code
into those systems that interact with the Services.
|
6.
|
Indemnification.
|
For
avoidance of doubt, The Bank hereby agree that the provisions in the
Related Agreement(s) related to the Bank’s indemnification of the Global
Sub-custodian and any limitations on the Global Sub-custodian’s liability and
responsibilities to the Bank shall be applicable to this Agreement, and are
hereby expressly incorporated herein. The Bank agrees that the Services are
comprised of telecommunications and computer systems, and that it is possible
that Instructions, information, transactions, or account reports might be added
to, changed, or omitted by electronic or programming malfunction, unauthorized
access, or other failure of the systems which comprise the Services, despite the
security features that have been designed into the Services. The Bank agrees
that the Global Sub-custodian will not be liable for any action taken or not
taken in complying with the terms of this Schedule, except for willful
misconduct or gross negligence. The provisions of this paragraph
shall survive the termination of this Schedule and the Related
Agreements.
|
7.
|
Payment.
|
The Bank
may be charged for services hereunder as set forth in a fee schedule from time
to time agreed by the Global Sub-custodian and Bank.
|
8.
|
Term/Termination.
|
|
8.1.
|
This
Schedule is effective as of the date the Bank signs it or first uses the
Services, whichever is first, and continues in effect until such time as
either the Bank or the Global Subcustodian terminate the Schedule in
accordance with this Section 8 and/or until the Bank’s off-line use of the
Services is terminated.
|
|
8.2.
|
The
Global Sub-custodian may terminate the Bank’s access to the Services at
any time, for any reason, with five (5) business days prior notice;
provided that the Global Sub-custodian may terminate the Bank’s access to
the Services with no prior notice (i) if the Bank’s account with the
Global Sub-custodian is closed, (ii) if the Bank fails to comply with any
of the terms of this Agreement, (iii) if the Global Sub-custodian believes
that the Bank’s continued access to the Services poses a security risk, or
(iv) if the Global Sub-custodian believes that the Bank is violating or
has violated applicable laws, and the Global Sub-custodian will not be
liable for any loss the Bank may experience as a result of such
termination. The Bank may terminate the Fund’s access to the
Services at any time by giving the Global Sub-custodian ten (10) business
days notice. Upon termination, the Global Sub-custodian will
cancel all the Bank’s Passwords and IDs and any in-process or pending
Instructions will be carried out or cancelled, at the Global
Sub-custodian’s sole discretion.
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|
9.
|
Miscellaneous.
|
|
9.1.
|
Notices. All
notices, requests, and demands (other than routine operational
communications, such as Instructions) shall be in such form and effect as
provided in the Related
Agreement(s).
|
|
9.2.
|
Inconsistent
Provisions. Each Service may be governed by separate
terms and conditions in addition to this Schedule and the Related
Agreement(s). Except where specifically provided to the
contrary in this Schedule, in the event that such separate terms and
conditions conflict with this Schedule and the Related Agreement(s), the
provisions of this Schedule shall prevail to the extent this Schedule
applies to the transaction in
question.
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|
9.3.
|
Binding Effect; Assignment;
Severability. This Schedule shall be binding on you,
your employees, officers and agents. We may assign or delegate
our rights and duties under this Schedule at any time without notice to
you. Your rights under this Schedule may not be assigned
without our prior written consent. In the event that any provision of this
Schedule conflicts with the law under which this Schedule is to be
construed or if any such provision is held invalid or unenforceable by a
court with jurisdiction over you and us, such provision shall be deemed to
be restated to effectuate as nearly as possible the purposes of the
Schedule in accordance with applicable law. The remaining
provisions of this Schedule and the application of the challenged
provision to persons or circumstances other than those as to which it is
invalid or unenforceable shall not be affected thereby, and each such
provision shall be valid and enforceable to the full extent permitted by
law.
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|
9.4.
|
Choice of Law; Jury
Trial. This Schedule shall be governed by and construed, and the
legal relations between the parties shall be determined, in accordance
with the laws of the State of New York, without giving effect to the
principles of conflicts of laws. Each party agrees to waive its right to
trial by jury in any action or proceeding based upon or related to this
Agreement. The parties agree that all actions and proceedings
based upon or relating to this Schedule shall be litigated exclusively in
the federal and state courts located within New York City, New
York.
|
The
undersigned acknowledges that the Bank has received a copy of this
document
THE
HUNTINTON NATIONAL BANK
By:
Title:
Date:
APPENDIX
A
17f-5
DELEGATION SCHEDULE
By its
execution of this Delegation Schedule dated as of _____________,
2008, between THE HUNTINGTON NATIONAL BANK, a
national bank organized under the laws of the United States (the Bank) acting on behalf of the
management investment companies each of whom is registered with the Securities
and Exchange Commission (the Commission) under the
Investment Company Act of 1940, as amended (the ▇▇▇▇ ▇▇▇) and listed on
Appendix A of the Global Sub-custodian Agreement (each a “Fund” and collectively
the “Funds”), the Bank hereby appoints ▇▇▇▇▇ BROTHERS ▇▇▇▇▇▇▇▇ &
CO., a New York limited partnership with an office in Boston,
Massachusetts (the Delegate) as its delegate to
perform certain functions with respect to the custody of the Funds’
Assets outside the United States.
WHEREAS the Bank at the
direction of each Fund, has appointed the Delegate as Global Sub-custodian
(“Global Sub-custodian”) of each Fund’s Assets pursuant to the Custodian
Agreement between the Bank and the Delegate dated _______________________
(“Custodian Agreement”);
WHEREAS a Fund may, from time
to time, determine to invest and maintain some or all of the Fund’s Assets
outside of the United States;
WHEREAS the Bank at the
direction of each Fund wishes to delegate to the Delegate certain functions with
respect to the custody of Fund’s Assets outside the United States;
NOW, THEREFORE, in
consideration of the mutual covenants and agreements herein contained, the Bank
on behalf of the Funds and the Delegate agree as follows:
1. Maintenance of Fund's Assets
Abroad. The Bank, acting on behalf of the Fund’s, hereby
instructs the Delegate pursuant to the terms of the Custodian Agreement to place
and maintain the Fund's Assets in countries outside the United States in
accordance with Instructions received from the Bank. Such instruction
shall constitute an Instruction under the terms of the Custodian Agreement. The
Bank acknowledges that (a) the Delegate shall perform services hereunder only
with respect to the countries where it accepts delegation as Foreign Custody
Manager as indicated on the Delegate’s Global Custody Network Listing; (b)
depending on conditions in the particular country, advance notice may be
required before the Delegate shall be able to perform its duties hereunder in or
with respect to such country (such advance notice to be reasonable in light of
the specific facts and circumstances attendant to performance of duties in such
country); and (c) nothing in this Delegation Schedule shall require the Delegate
to provide delegated or custodial services in any country, and there may from
time to time be countries as to which the Delegate determines it will not
provide delegation services.
2. Delegation. Pursuant
to the provisions of Rule 17f-5 under the 1940 Act as amended, the Bank on
behalf of the Funds hereby delegates to the Delegate, and the Delegate hereby
accepts such delegation and agrees to perform only those duties set forth in
this Delegation Schedule concerning the safekeeping of the Fund's Assets in each
of the countries as to which it acts as delegate. The Delegate is hereby
authorized to take such actions on behalf of or in the name of the Bank, on
behalf of the Funds, as are reasonably required to discharge its duties under
this Delegation Schedule, including, without limitation, to cause the Fund's
Assets to be placed with a particular Eligible Foreign Custodian in accordance
herewith. The Bank confirms to the Delegate that the Bank on behalf of the Funds
has considered the Sovereign Risk and prevailing Country Risk as part of its
continuing investment decision process, including such factors as may be
reasonably related to the systemic risk of maintaining the Fund's Assets in a
particular country, including, but not limited to, financial infrastructure,
prevailing custody and settlement systems and practices (including the use of
any Securities Depository in the context of information provided by the Global
Sub-custodian in the performance of its duties as required under Rule 17f-7 and
the terms of the Global Sub-custodian Agreement governing such duties), and the
laws relating to the safekeeping and recovery of the Fund's Assets held in
custody pursuant to the terms of the Custodian Agreement.
3. Selection of Eligible
Foreign Custodian and Contract
Administration. The
Delegate shall perform the following duties with respect to the selection of
Eligible Foreign Custodians and administration of certain contracts governing
the Fund’s foreign custodial arrangements:
(a) Selection of Eligible
Foreign Custodian. The Delegate shall place and maintain the Fund's
Assets with an Eligible Foreign Custodian, provided that the Delegate shall have
determined that the Fund's Assets will be subject to reasonable care based on
the standards applicable to custodians in the relevant market after considering
factors relevant to the safekeeping of such assets including without
limitation:
(i) The
Eligible Foreign Custodian's practices, procedures, and internal controls,
including, but not limited to, the physical protections available for
certificated securities (if applicable), the controls and procedures for dealing
with any Securities Depository, the method of keeping custodial records, and the
security and data protection practices;
(ii) Whether
the Eligible Foreign Custodian has the requisite financial strength to provide
reasonable care for the Fund's Assets;
(iii) The
Eligible Foreign Custodian's general reputation and standing; and
(iv) Whether
the Fund will have jurisdiction over and be able to enforce judgments against
the Eligible Foreign Custodian, such as by virtue of the existence of any
offices of such Eligible Foreign Custodian in the United States or such Eligible
Foreign Custodian's appointment of an agent for service of process in the United
States or consent to jurisdiction in the United States.
The
Delegate shall be required to make the foregoing determination to the best of
its knowledge and belief based only on information reasonably available to
it.
(b) Contract
Administration. The Delegate shall cause that the foreign
custody arrangements with an Eligible Foreign Custodian shall be governed by a
written contract that the Delegate has determined will provide reasonable care
for Fund assets based on the standards applicable to custodians in the relevant
market. Each such contract shall, except as set forth in the last
paragraph of this subsection (b), include provisions that provide:
(i) For
indemnification or insurance arrangements (or any combination of the foregoing)
such that the Fund will be adequately protected against the risk of loss of
assets held in accordance with such contract;
(ii) That
the Fund's Assets will not be subject to any right, charge, security interest,
lien or claim of any kind in favor of the Eligible Foreign Custodian or its
creditors except a claim of payment for their safe custody or administration or,
in the case of cash deposits, liens or rights in favor of creditors of such
Custodian arising under bankruptcy, insolvency or similar laws;
(iii) That
beneficial ownership of the Fund's Assets will be freely transferable without
the payment of money or value other than for safe custody or
administration;
(iv) That
adequate records will be maintained identifying the Fund's Assets as belonging
to the Fund or as being held by a third party for the benefit of the
Fund;
(v) That
the Fund's independent public accountants will be given access to those records
described in (iv) above or confirmation of the contents of such records;
and
(vi) That
the Delegate will receive sufficient and timely periodic reports with respect to
the safekeeping of the Fund's Assets, including, but not limited to,
notification of any transfer to or from the Fund's account or a third party
account containing the Fund's Assets.
Such
contract may contain, in lieu of any or all of the provisions specified in this
Section 3(b), such other provisions that the Delegate determines will provide,
in their entirety, the same or a greater level of care and protection for the
Fund's Assets as the specified provisions, in their entirety.
(c) Limitation to Delegated
Selection. Notwithstanding anything in this Delegation
Schedule to the contrary, the duties under this Section 3 shall apply only to
Eligible Foreign Custodians selected by the Delegate and shall not apply to
Securities Depositories or to any Eligible Foreign Custodian that the Delegate
is directed to use pursuant to Section 7 of this Delegation
Schedule.
4. Monitoring. The
Delegate shall establish a system to monitor at reasonable intervals (but at
least annually) the appropriateness of maintaining the Fund's Assets with each
Eligible Foreign Custodian that has been selected by the Delegate pursuant to
Section 3 of this Delegation Schedule. The Delegate shall monitor the
continuing appropriateness of placement of the Fund's Assets in accordance with
the criteria established under Section 3(a) of this Delegation
Schedule. The Delegate shall monitor the continuing appropriateness
of the contract governing the Fund's arrangements in accordance with the
criteria established under Section 3(b) of this Delegation
Schedule.
5. Reporting. At
least annually and more frequently as mutually agreed between the parties, the
Delegate shall provide to the Board written reports specifying placement of the
Fund's Assets with each Eligible Foreign Custodian selected by the Delegate
pursuant to Section 3 of this Delegation Schedule and shall promptly report on
any material changes to such foreign custody arrangements. Delegate
will prepare such a report with respect to any Eligible Foreign Custodian that
the Delegate has been instructed to use pursuant to Section 7 of this Delegation
Schedule only to the extent specifically agreed with respect to the particular
situation.
6. Withdrawal of Fund's
Assets.
If the Delegate determines that an arrangement with a specific Eligible Foreign
Custodian selected by the Delegate under Section 3 of this Delegation Schedule
no longer meets the requirements of said Section, Delegate shall withdraw the
Fund's Assets from the non-complying arrangement as soon as reasonably
practicable; provided, however, that if in the reasonable judgment of the
Delegate, such withdrawal would require liquidation of any of the Fund's Assets
or would materially impair the liquidity, value or other investment
characteristics of the Fund's Assets, it shall be the duty of the Delegate to
provide information regarding the particular circumstances and to act only in
accordance with Instructions of the Bank with respect to such
liquidation or other withdrawal.
7. Direction as to Eligible
Foreign Custodian. Notwithstanding this Delegation Schedule,
the Bank may direct the Delegate to place and maintain the Fund's Assets with a
particular Eligible Foreign Custodian, including without limitation with respect
to investment in countries as to which the Global Sub-custodian will not provide
delegation services. In such event, the Delegate shall be entitled to
rely on any such instruction as an Instruction under the terms of the Custodian
Agreement and shall have no duties under this Delegation Schedule with respect
to such arrangement save those that it may undertake specifically in writing
with respect to each particular instance.
8. Standard of
Care. In
carrying out its duties under this Delegation Schedule, the Delegate agrees to
exercise reasonable care, prudence and diligence such as a person having
responsibility for safekeeping the Fund's Assets would exercise.
9. Representations. The
Delegate hereby represents and warrants that it is a U.S. Bank and that this
Delegation Schedule has been duly authorized, executed and delivered by the
Delegate and is a legal, valid and binding agreement of the
Delegate.
The Bank
hereby represents and warrants that each Board of Directors has determined that
it is reasonable to rely on the Delegate to perform the delegated
responsibilities provided for herein and that this Delegation Schedule has been
duly authorized, executed and delivered by the Bank and is a legal, valid and
binding agreement of the Bank.
10. Effectiveness;
termination. This
Delegation Schedule shall be effective as of the date on which this Delegation
Schedule shall have been accepted by the Delegate, as indicated by the date set
forth below the Delegate's signature. This Delegation Schedule
may be terminated at any time, without penalty, by written notice from the
terminating party to the non-terminating party. Such termination
shall be effective on the 30th calendar day following the date on which the
non-terminating party shall receive the foregoing notice. The
foregoing to the contrary notwithstanding, this Delegation Schedule shall be
deemed to have been terminated concurrently with the termination of the
Custodian Agreement.
11. Notices. Notices
and other communications under this Delegation Schedule are to be made in
accordance with the arrangements designated for such purpose under the Custodian
Agreement unless otherwise indicated in a writing referencing this Delegation
Schedule and executed by both parties.
12. Definitions. Capitalized
terms not otherwise defined in this Delegation Schedule have the following
meanings:
a. Country
Risk – shall have the meaning set forth in Section 9.1.2 of the Custodian
Agreement.
b. Eligible Foreign
Custodian - shall have the meaning set forth in Rule 17f-5(a)(1) of the
1940 Act and shall also include a U.S. Bank.
c. Fund's Assets - shall
mean any of the Fund's 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 Fund's transactions in such
investments.
d. Instructions - shall
have the meaning set forth in the Custodian Agreement.
e. Securities Depository
- shall have the meaning set forth in Rule 17f-7 of the 1940 Act.
f. Sovereign Risk -
shall have the meaning set forth in Section 6.3 of the Custodian
Agreement.
g
.. U.S. Bank - shall
mean a bank which qualifies to serve as a custodian of assets of investment
companies under Section 17(f) of the 1940 Act.
13. Governing Law and
Jurisdiction. This
Delegation Schedule shall be construed in accordance with the laws of the State
of New York. The parties hereby submit to the exclusive jurisdiction
of the Federal courts sitting in the State of New York or the Commonwealth of
Massachusetts or of the state courts of either such State or such
Commonwealth.
14. Fees. Delegate
shall perform its functions under this Delegation Schedule for the compensation
determined under the Custodian Agreement.
15. Integration. This
Delegation Schedule sets forth all of the Delegate's duties with respect to the
selection and monitoring of Eligible Foreign Custodians, the administration of
contracts with Eligible Foreign Custodians, the withdrawal of assets from
Eligible Foreign Custodians and the issuance of reports in connection with such
duties. The terms of the Custodian Agreement shall apply generally as
to matters not expressly covered in this Delegation Schedule, including dealings
with the Eligible Foreign Custodians in the course of discharge of the
Delegate's obligations under the Custodian Agreement.
IN WITNESS WHEREOF, each of
the parties hereto has caused this Delegation Schedule to be duly executed as of
the date first above written.
The
undersigned acknowledges that (I/we) have received a copy of this
document.
▇▇▇▇▇ BROTHERS ▇▇▇▇▇▇▇▇ &
CO. THE HUNTINGTON NATIONAL
BANK
By:
__________________________________ By:
________________________________
Name: Name:
Title: Title: