CUSTODIAN CONTRACT
THIS CONTRACT between FINANCIAL INDUSTRIAL INCOME FUND, INC. a corporation
organized and existing under the laws of the State of Maryland, having its
principal office and place of business at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, hereinafter called the "Fund," and STATE STREET BANK AND TRUST COMPANY,
hereinafter called the "Custodian,"
W I T N E S S E T H:
That in consideration of the mutual covenants and agreements hereinafter
contained, the parties hereto agree as follows:
I. Employment of Custodian and Property to be Held by It
The Fund hereby employs the Custodian as the Custodian of its assets
pursuant to the provisions of its governing documents. The Fund agrees to
deliver to the Custodian all securities: and cash owned by it, and all payments
of income, payments of principal or capital distributions received by it with
respect to all securities owned by the Fund from time to time, and the cash
consideration received by it for such new or treasury shares ("Shares") of the
Fund as may be issued or sold from time to time The Custodian shall not be
responsible for any property of the Fund held or received by the Fund and not
delivered to the Custodian.
The Custodian may from time to time employ one or more subcustodians, but
only after having received approval of such employment by specific written
instructions from the Fund.
II. Duties of the Custodian with Respect to Property of the Fund
Held by the Custodian
A. Holding Securities. The Custodian shall hold and physically segregate for
the account of the Fund all non-cash property, including all securities
owned by the Fund, other than securities which are maintained pursuant to
Section K of Article II in a clearing agency which acts as a securities
depository or in a book-entry system authorized by the U.S. Department of
the Treasury, collectively referred to herein as "Securities Systems."
B. Delivery of Securities. The Custodian shall release and deliver securities
owned by the Fund held by the Custodian or in a Securities System account
of the Custodian only upon receipt of proper instructions which may be
continuing instructions when deemed appropriate by the parties, and only
in the following cases:
(1) Upon sale of such securities for the account of the Fund and
receipt of payment in full therefor in cash, certified or
cashier's check, other official bank check, or the equivalent.
(2) Upon the receipt of payment in connection with any repurchase
agreement related to such securities entered into by the Fund.
(3) In the case of a sale effected through a Securities System, in
accordance with the provisions of Section K hereof.
(4) To the depository agent in connection with tender or other
similar offers for portfolio securities of the Fund.
(5) To the Issuer thereof or its agent when such securities are
called, redeemed, retired, or otherwise become payable; provided
that, in any such case, the cash or other consideration is to be
delivered to the Custodian.
(6) To the Issuer thereof, or its agent, for transfer into the name
of the Fund or into the name of any nominee or nominees of the
Custodian or into the name or nominee name of any agent
appointed pursuant to Section J of Article II or into the name
or nominee name of any sub-custodian appointed pursuant to
Article I; or for exchange for a different number of bonds,
certificates or other evidence representing the same aggregate
face amount or number of units; provided that, in any such case,
the new securities are to be delivered to the Custodian.
(7) To the broker selling the same for examination in accordance
with the "street delivery" custom; provided that the Custodian
shall adopt such procedures as the Fund from time to time shall
approve to ensure their prompt return to the Custodian by the
broker in the event the broker elects not to accept them.
(8) For exchange or conversion pursuant to any plan of merger,
consolidation, recapitalization, reorganization or readjustment
of the securities of the Issuer of such securities, or pursuant
to provisions for conversion contained in such securities, or
pursuant to any deposit agreement; provided that, in any such
case, the new securities and cash, if any, are to be delivered
to the Custodian.
(9) In the case of warrants, rights or similar securities, the
surrender thereof in the exercise of such warrant, rights or
similar securities or the surrender of interim receipts or
temporary securities for definitive securities; provided that,
in any such case, the new securities and cash, if any, are to be
delivered to the Custodian;
(10) For delivery as security in connection with any borrowings by
the Fund requiring a pledge of assets by the Fund, but only
against receipt of amounts borrowed;
(11) Upon receipt of instructions from the transfer agent for the
Fund, for delivery to such transfer agent or to holders of
shares in connection with distributions in kind, as may be
described from time to time in the Fund's currently effective
prospectus, in satisfaction of requests by holders of Shares for
repurchase or redemption; and
(12) For any other proper corporate purposes, but only upon receipt
of, in addition to proper instructions, a certified copy of a
resolution of the Board of Directors of the Fund or of the
Fund's Executive Committee signed by an officer of the Fund and
certified by the Secretary or an Assistant Secretary, setting
forth the purpose for which such delivery is to be made,
declaring such purposes to be proper corporate purposes, and
naming the person or persons to whom delivery of such securities
shall be made.
C. Registration of Securities. Securities held by the Custodian (other than
bearer securities) shall be registered in the name of the Fund or in the
name of any nominee of the Fund or of any nominee of the Custodian which
nominee shall be assigned exclusively to the Fund, unless the Fund has
authorized in writing the appointment of a nominee to be used in common
with other registered investment companies having the same investment
adviser as the Fund, or in the name or nominee name of any agent appointed
pursuant to Section J of Article II or in the name or nominee name of any
sub-custodian appointed pursuant to Article I. All securities accepted by
the Custodian on behalf of the Fund under the terms of this Contract shall
be in "street" or other good delivery form.
D. Bank Accounts. The Custodian shall open and maintain a separate bank
account or accounts in the name of the Fund, subject only to draft or
order by the Custodian acting pursuant to the terms of this Contract,
and shall hold in such account or accounts, subject to the provisions
hereof, all cash received by it from or for the account of the Fund, other
than cash maintained by the Fund in a bank account established and used in
accordance with Rule 17f-3 under the Investment Company Act of 1940. Funds
held by the Custodian for the Fund may be deposited by it to its credit
as Custodian in the Banking Department of the Custodian or in such other
banks or trust companies as it may in its discretion deem necessary or
desirable; provided, however, that every such bank or trust company shall
be qualified to act as a custodian under the Investment Company Act of
1940 and that each such bank or trust company and the funds to be
deposited with each such bank or trust company shall be approved by vote
of a majority of the Board of Directors of the Fund. Such funds shall be
deposited by the Custodian in its capacity as Custodian and shall be
withdrawable by the Custodian only in that capacity.
E. Payments for Shares. The Custodian shall receive from the distributor of
the Fund's Shares or from the transfer agent of the Fund ("the Transfer
Agent") and deposit into the Fund's account such payments as are received
for Shares of the Fund issued or sold from time to time by the Fund. The
Custodian will provide timely notification to the Fund and the Transfer
Agent of any receipt by it of payments for Shares of the Fund.
F. Collection of Income. The Custodian shall collect on a timely basis all
income and other payments with respect to registered securities held
hereunder to which the Fund shall be entitled either by law or pursuant to
custom in the securities business, and shall collect on a timely basis all
income and other payments with respect to bearer securities if, on the
date of payment by the Issuer, such securities are held by the Custodian
or agent thereof and shall credit such income, as collected, to the Fund's
custodian account. Without limiting the generality of the foregoing, the
Custodian shall detach and present for payment all coupons and other
income items requiring presentation as and when they become due and shall
collect interest when due on securities held hereunder.
G. Payment of Fund Moneys. Upon receipt of proper instructions, which may be
continuing instructions when deemed appropriate by the parties, the
Custodian shall pay out moneys of the Fund in the following cases only:
(1) Upon the purchase of securities for the account of the Fund but only
(a) against the delivery of such securities to the Custodian (or any
bank, banking firm or trust company doing business in the United
States or abroad which is qualified under the Investment Company Act
of 1940, as amended, to act as a custodian and has been designated
by the Custodian as its agent for this purpose) registered in the
name of the Fund or in the name of a nominee of the Custodian
referred to in Section C of Article II hereof or in proper form for
transfer; (b) in the case of a purchase effected through a
Securities System, in accordance with the conditions set forth in
Section K of Article II hereof or (C) in the case of repurchase
agreements entered into between the Fund and the Custodian, or
another bank, (I) against delivery of the securities either in
certificate form or through an entry crediting the Custodian's
account at the Federal Reserve Bank with such securities or (ii)
against delivery of the receipt evidencing purchase by the Fund of
securities owned by the Custodian or other bank along with written
evidence of the agreement by the Custodian or other bank to
repurchase such securities from the Fund;
(2) In connection with conversion, exchange or surrender of securities
owned by the Fund as set forth in Section B of Article II hereof;
(3) For the redemption or repurchase of Shares issued by the Fund as set
forth in Section I of Article II hereof;
(4) For the payment of any expense or liability incurred by the Fund,
including but not limited to the following payments for the account
of the Fund: interest, taxes, investment supervisory fees,
administrative services charges, directors fees and expenses, fees
and expenses of the Custodian, registrar, transfer agent, and
dividend disbursing agent of the Fund, any fiscal agent retained by
the Fund, accounting and legal fees and disbursements, and other
operating expenses of the Fund whether or not such expenses are to
be in whole or part capitalized or treated as deferred expenses;
(5) For the payment of any dividends declared pursuant to the governing
documents of the Fund;
(6) For any other proper purposes, but only upon receipt of, in addition
to proper instructions, a certified copy of a resolution of the
Board of Directors or of the Executive Committee of the Fund signed
by an officer of the Fund and certified by its Secretary or an
Assistant Secretary, specifying the amount of such payment, setting
forth the purpose for which such payment is to be made, declaring
such purpose to be a proper purpose, and naming the person or
persons to whom such payment is to be made.
H. Liability for Payment in Advance of Receipt of Securities Purchased.
In any and every case where payment for purchase of securities for the
account of the Fund is made by the Custodian in advance of receipt of the
securities purchased in the absence of specific written instructions from
the Fund to so pay in advance, the Custodian shall be absolutely liable to
the Fund for such securities to the same extent as if the securities had
been received by the Custodian, except that in the case of repurchase
agreements entered into by the Fund with a bank which is a member of the
Federal Reserve System, the Custodian may transfer funds to the account of
such bank prior to the receipt of written evidence that the securities
subject to such repurchase agreement have been transferred by book-entry
into a segregated non-proprietary account of the Custodian maintained with
the Federal Reserve Bank of Boston or of the safekeeping receipt, provided
that such securities have in fact been so transferred by book-entry.
I. Payments for Repurchases or Redemptions of Shares of the Fund.
From such funds as may be available for the purpose but subject to the
limitations of the governing documents of the Fund, the Custodian shall,
upon receipt of instructions from the Transfer Agent, make funds available
for payment to holders of shares who have delivered to the Transfer Agent
a request for redemption or repurchase of their Shares. In connection
with the redemption or repurchase of Shares of the Fund, the Custodian is
authorized upon receipt of instructions from the Transfer Agent to wire
funds to or through a commercial bank designated by the redeeming
shareholders. In connection with the redemption or repurchase of Shares
of the Fund, the Custodian shall honor checks drawn on the custodian
by a holder of Shares, which checks have been furnished by the Fund to the
holder of Shares, when presented to the Custodian in accordance with such
procedures and controls as are mutually agreed upon from time to time
between the Fund and the Custodian.
J. Appointment of Agents. The Custodian may at any time or times in its
discretion appoint (and may at any time remove) any other bank or trust
company which is itself qualified under the Investment Company Act of
1940, as amended, to act as a custodian, as its agent to carry out such of
the provisions of this Article II as the Custodian may from time to time
direct; provided, however, that the appointment of any agent shall not
relieve the Custodian of any of its responsibilities or liabilities
hereunder.
K. Deposit of Fund Assets in Securities Systems. The Custodian may deposit
and/or maintain securities owned by the Fund in a clearing agency
registered with the Securities and Exchange Commission under Section 17A
of the Securities Exchange Act of 1934, which acts as a securities
depository, or in the book-entry system authorized by the U.S. Department
of the Treasury and certain federal agencies, collectively referred to
herein as "Securities Systems" in accordance with all applicable Federal
Reserve Board and Securities and Exchange Commission rules and
regulations, if any, and subject to the following provisions:
(1) The Custodian may keep securities of the Fund in a Securities System
provided that such securities are represented in an account
("Account") of the Custodian in the Securities System which shall
not include any assets of the Custodian other than assets held as a
fiduciary, custodian, or otherwise for customers.
(2) The records of the Custodian with respect to securities of the Fund
which are maintained in a Securities System shall identify by
book-entry those securities belonging to the Fund.
(3) The Custodian shall pay for securities purchased for the account of
the Fund upon (I) receipt of advice from the Securities System that
such securities have been transferred to the Account, and (ii) the
making of an entry on the records of the Custodian to reflect such
payment and transfer for the account of the Fund. The Custodian
shall transfer securities sold for the account of the Fund upon (I)
receipt of advice from the Securities System that payment for such
securities has been transferred to the Account, and (ii) the making
of an entry on the records of the Custodian to reflect such transfer
and payment for the account of the Fund. Copies of all advices from
the Securities System of transfers of securities for the account of
the Fund shall identify the Fund, be maintained for the Fund by the
Custodian and be provided to the Fund at its request. The Custodian
shall furnish the Fund confirmation of each transfer to or from the
account of the Fund in the form of a written advice or notice and
shall furnish to the Fund copies of daily transaction sheets
reflecting each day's transactions in the Securities System for the
account of the Fund on the next business day.
(4) The Custodian shall provide the Fund with any report obtained by the
Custodian on the Securities System's accounting system, internal
accounting control and procedures for safeguarding securities
deposited in the Securities System.
(5) The Custodian shall have received the initial or annual certificate,
as the case may be, required by Article IX hereof.
(6) Anything to the contrary in this Contract notwithstanding, the
Custodian shall be liable to the Fund for any loss or damage to the
Fund resulting from use of the Securities System by reason of any
negligence, misfeasance or misconduct of the Custodian or any of its
agents or of any of its or their employees or from any failure of
the Custodian or any such agent to enforce effectively such rights
as it may have against the Securities System; at the election of the
Fund, it shall be entitled to be subrogated to the rights of the
Custodian with respect to any claim against the Securities System or
any other person which the Custodian may have as a consequence of
any such loss or damage if and to the extent that the Fund has not
been made whole for any such loss or damage.
L. Ownership Certificates for Tax Purposes. The Custodian shall execute
ownership and other certificates and affidavits for all federal and state
tax purposes in connection with receipt of income or other payments with
respect to securities of the Fund held by it and in connection with
transfers of securities.
M. Proxies. The Custodian shall, with respect to the securities held
hereunder, cause to be promptly executed by the registered holder of such
securities, if the securities are registered otherwise than in the name of
the Fund or a nominee of the Fund, all proxies, without indication of the
manner in which such proxies are to be voted, and shall promptly deliver
to the Fund such proxies, all proxy soliciting materials and all notices
relating to such securities, in accordance with proper instructions from
the Fund.
N. Communications Relating to Fund Portfolio Securities. The Custodian shall
transmit promptly to the Fund all written information (including, without
limitation, pendency of calls and maturities of securities and expirations
of rights in connection therewith) received by the Custodian from or
concerning issuers of the securities being held for the Fund. With respect
to tender or exchange offers, the Custodian shall transmit promptly to the
Fund all written information received by the Custodian from issuers of the
securities whose tender or exchange is sought and from the party (or his
agents) making the tender or exchange offer. If the Fund desires to
take action with respect to any tender offer, exchange offer, or any other
similar transaction, the Fund shall notify the Custodian at least three
business days prior to the date on which the Custodian is to take such
action.
O. Proper Instructions. "Proper instructions" as used throughout this
Contract shall mean an instruction or certification in writing, signed in
the name of the Fund by any two of the officers of the Fund who are duly
authorized to give such instruction and sign such a document by the Board
of Directors or Executive Committee of the Fund and whose names and
signatures have been certified to the Custodian in the following manner:
(1) An officer of the Funds shall certify to the Custodian the names and
signatures of the officers authorized to sign proper instructions,
and the names of the members of the Board of Directors and of the
Executive Committee of the Fund, and shall certify to the Custodian
any changes which may occur from time to time.
(2) Annexed hereto as Exhibit A is an instruction signed by two of the
present officers of the Fund under its corporate seal, setting forth
the names and the signatures of the present officers of the Fund,
and the names of the members of the Board of Directors and Executive
Committee of the Fund. The Fund agrees to furnish to the Custodian a
new instruction in similar form in the event any such present
officer or director ceases to be an officer or director of the Fund,
or in the event that other or additional officers or directors are
elected or appointed. Until such new instructions in acting under
the provisions of this Contract upon the signatures of the present
officers as set forth in said annexed instructions or upon the
signatures of the present officers as set forth in a subsequently
issued instruction.
Each such instruction shall set forth the specific transaction or
type of transaction involved, including a specific statement of the
purpose for which such action is requested. Oral instructions will
be considered proper instructions only if the Custodian reasonably
believes them to have been given by a person authorized to give such
instructions with respect to the transaction involved. The Fund
shall cause all oral instructions to be confirmed in writing. Upon
receipt of a certificate of the Secretary or an Assistant Secretary
as to the authorization by the Board of Directors of the Fund
accompanied by a detailed description of procedures approved by the
Board of Directors, "proper instructions" may include communications
effected directly between electro-mechanical or electronic devices
provided that the Board of Directors and the Custodian are satisfied
that such procedures afford adequate safeguards for the Fund's
assets.
P. Clearance of Security Transactions and Collection of Income. In connection
with clearance of security transactions and collection of income (such as
dividends and interest) and capital adjustments (such as stock splits,
stock dividends, rights, warrants, etc.) on the securities held in custody
for the Fund, the Custodian shall exercise diligence and take all
appropriate action, including the following:
(1) On security purchases for the Fund portfolio, the Custodian shall
not accept delivery and make payment unless the securities are in
proper form (including receipt of a due ▇▇▇▇, if appropriate); and
if delivery is refused, the Custodian shall inform the delivering
broker or agent and the Fund of such refusal and the reasons
therefor;
(2) On security sales from the Fund portfolio, the Custodian shall
deliver to the broker or agent in proper form and on a timely basis,
and if delivery and payment is refused by the broker or agent, the
Custodian shall notify the Fund of such refusal and the reason
therefor, and make reasonable efforts to rectify any error in the
delivery form caused by the Custodian, and continue to seek to make
delivery until the transaction is cleared; provided, however, that
the Fund shall be responsible for rectifying errors caused by the
Fund, brokers or others, and shall cooperate fully with the
Custodian to assist it in making delivery and clearing such
transactions;
(3) The Custodian shall maintain, with reasonable care, a schedule of
income and capital adjustments receivable on the securities held in
custody for the Fund, based upon published information received by
the Custodian, concerning such income and capital adjustments, and
shall make reasonable efforts, including follow-up with paying
agents, to assure timely collection of such scheduled income and
capital adjustments, as further provided in Section F of Article II
hereof; provided that the Fund as part of its regulatory
record-keeping responsibilities shall also maintain schedules of
such income and capital adjustments and provide to the Custodian on
a timely basis all information that the Custodian may reasonably
request to assist the Custodian in providing such service.
Q. Actions Permitted Without Express Authority. The Custodian may in its
discretion, without express authority from the Fund:
(1) make payments to itself or others for minor expenses of handling
securities or other similar items relating to its duties under this
contract, provided that all such payments shall be accounted for to
the Fund;
(2) surrender securities in temporary form for securities in definitive
form;
(3) endorse for collection, in the name of the Fund, checks, drafts, and
other negotiable instruments; and
(4) in general, attend to all non-discretionary details in connection
with the sale, exchange, substitution, purchase, transfer, and other
dealings with the securities and property of the Fund except as
otherwise directed by the Board of Directors of the Fund.
R. Evidence of Authority. The Custodian shall be protected in acting upon
any instructions, notice request, consent, certificate or other instrument
or paper believed by it to be genuine and to have been properly executed
by or on behalf of the Fund. The Custodian may receive and accept a
certified copy of a vote of the Board of Directors of the Fund as
conclusive evidence (a) of the authority of any person to act in
accordance with such vote or (b) of any determination or of any action by
the Board of Directors as described in such vote, and such vote may be
considered as in full force and effect until receipt by the Custodian of
written notice to the contrary. The protection and authority granted
pursuant to this Section shall not be deemed a waiver of the necessity for
the Custodian to receive proper instructions as required by provisions of
this Contract and as defined in Section O of this Article II.
III. Duties of Custodian With Respect to Reports
The Custodian shall furnish the Fund at the close of each business
day with information concerning all transactions and entries for the account of
the Fund on that day, including the receipt and disbursement of all securities
and cash in connection with purchases and sales of securities, dividends and
interest payments, exchanges, and any other transaction. The Custodian shall
furnish the Fund at the end of every month with a statement of the Fund's
accounts, including a list of the portfolio securities held for the Fund.
Semiannually at the end of each month on which a semiannual fiscal period of the
Fund ends, such list shall be adjusted for all commitments confirmed by the Fund
as of the end of such month, and certified by a duly authorized officer of the
Custodian. The Custodian shall also furnish to the Fund such other statements
and reports as it may reasonably require.
IV. Records
The Custodian shall create and maintain all records relating to its
activities and obligations under this Contract in such manner as will meet the
obligations of the Fund under the Investment Company Act of 1940, with
particular attention to Section 31 thereof and Rules 31a-1 and 31a-2 thereunder,
applicable federal and state tax laws and any other law or administrative rules
or procedures which may be applicable to the Fund. All such records shall be the
property of the Fund and shall at all times during the regular business hours of
the Custodian be open for inspection by duly authorized officers, employees or
agents of the Fund and employees and agents of the Securities and Exchange
Commission. The Custodian shall, at the Fund's request, supply the Fund with a
tabulation of securities owned by the Fund and held by the Custodian and shall,
when requested to do so by the Fund and for such compensation as shall be agreed
upon between the Fund and the Custodian, include certificate numbers in such
tabulations.
V. Opinion of Fund's Independent Accountant
The Custodian shall take all reasonable action, as the Fund may from
time to time request, to obtain from year to year favorable opinions from the
Fund's independent accountants with respect to its activities hereunder in
connection with the preparation of the Fund's Form N-1 and Form N-1R or other
annual reports to the Securities and Exchange Commission and with respect to any
other requirements of such Commission.
VI. Reports to Fund by Independent Accountants
The Custodian shall provide the Fund, at such times as the Fund may
reasonably require, with reports by independent accountants on the accounting
system, internal accounting control and procedures for safeguarding securities,
including securities deposited and/or maintained in a Securities System,
relating to the services provided by the Custodian under this Contract; such
reports, which shall be of sufficient scope and in sufficient detail as may
reasonably be required by the Fund to provide reasonable assurance that any
material inadequacies would be disclosed, shall state in detail material
inadequacies disclosed by such examination, and, if there are no such
inadequacies, shall so state.
VII. Compensation of Custodian
The Custodian shall be entitled to reasonable compensation for its
services and expenses as Custodian, as agreed upon from time to time between the
Fund and the Custodian.
VIII. Responsibility of Custodian
So long as and to the extent that it is in the exercise of
reasonable care, the Custodian shall not be responsible for the title, validity
or genuineness of any property or evidence of title thereto received by it or
delivered by it pursuant to this Contract and shall be held harmless in acting
upon any notice, request, consent, certificate or other instrument reasonably
believed by it to be genuine and to be signed by the proper party or parties.
The Custodian shall be held to the exercise of reasonable care in carrying out
the provisions of this Contract but shall be kept indemnified by and shall be
without liability to the Fund for any action taken or omitted by it in good
faith without negligence. It shall be entitled to rely on and may act upon
written advice of counsel (who may be counsel for the Fund) on all matters and
shall be without liability for any action reasonably taken or omitted pursuant
to such advice. Notwithstanding the foregoing, the responsibility of the
Custodian with respect to redemptions effected by check shall be in accordance
with a separate agreement entered into between the Custodian and the Fund.
If the Fund requires the Custodian to take any action with respect
to securities, which action involves the payment of money or which action may,
in the opinion of the Custodian, result in the Custodian or its nominee assigned
to the Fund being liable for the payment of money or incurring liability of some
other form, the Fund, as a prerequisite to requiring the Custodian to take such
action, shall provide indemnity to the Custodian in an amount and form
satisfactory to it.
IX. Effective Period, Termination and Amendment
This Contract shall become effective as of its execution, shall
continue in full force and effect until terminated as hereinafter provided, may
be amended at any time by mutual written agreement of the parties hereto and may
be terminated by either party by an instrument in writing delivered or mailed,
postage prepaid to the other party, such termination to take effect not sooner
than thirty (30) days after the date of such delivery or mailing; provided,
however, that the Custodian shall not act under Section K of Article II hereof
in the absence of receipt of an initial certificate of the Secretary or an
Assistant Secretary that the Board of Directors of the Fund has approved the
initial use of a particular Securities System and the receipt of an annual
certificate of the Secretary or an Assistant Secretary that the Board of
Directors has reviewed the use by the Fund of such Securities System, as
required in each case by Rule 17f-4 under the Investment Company Act of 1940, as
amended; provide further, however, that the Fund shall not amend or terminate
this Contract in contravention of any applicable federal or state regulations,
or any provision of the Fund's governing documents, and provided further that
the Fund may at any time by action of its Board of Directors (I) substitute
another bank or trust company for the Custodian by giving notice as described
above to the Custodian, or (ii) immediately terminate this Contract in the event
of the appointment of a conservator or receiver for the Custodian by the
Comptroller of the Currency or upon the happening of a like event at the
direction of an appropriate regulatory agency or court of competent
jurisdiction.
Upon termination of the Contract, the Fund shall pay to the
Custodian such compensation as may be due as of the date of such termination and
shall likewise reimburse the Custodian for its costs, expenses, and
disbursements.
X. Successor Custodian
If a successor custodian shall be appointed by the Board of
Directors of the Fund, the Custodian shall, upon termination, deliver to such
successor custodian at the office of the Custodian, fully endorsed and in the
form for transfer, all securities then held by it hereunder, and all funds and
other properties of the Fund.
If no such successor custodian shall be appointed, the Custodian
shall, in like manner, upon receipt of a certified copy of a vote of the Board
of Directors of the Fund, deliver at the office of the Custodian such
securities, funds, and other properties in accordance with such vote.
In the event that no written order designating a successor custodian
or certified copy of a vote of the Board of Directors shall have been delivered
to the Custodian on or before the date when such termination shall become
effective, then the Custodian shall have the right to deliver to a bank or trust
company, which is a "bank" as defined in the Investment Company Act of 1940,
doing business in Boston, Massachusetts, of its own selection, having an
aggregate capital, surplus, and undivided profits, as shown by its last
published report, of not less than $25,000,000, all securities, funds and other
properties held by the Custodian and all instruments held by the Custodian
relative thereto and all other property held by it under this contract.
Thereafter, such bank or trust company shall be the successor of the Custodian
under this Contract.
In the event that securities, funds, and other properties remain in
the possession of the Custodian after the date of termination hereof owing to
failure of the Fund to procure the certified copy of vote referred to or of the
Board of Directors to appoint a successor custodian, the Custodian shall be
entitled to fair compensation for its services during such period as the
Custodian retains possession of such securities, funds, and other properties and
the provisions of this Contract relating to the duties and obligations of the
Custodian shall remain in full force and effect.
XI. Interpretive and Additional Provisions
In connection with the operation of this Contract, the Custodian and
the Fund may from time to time agree on such provisions interpretive of or in
addition to the provisions of this Contract as may in their joint opinion be
consistent with the general tenor of this Contract. Any such interpretive or
additional provisions shall be in a writing signed by both parties and shall be
annexed hereto, provided that no such interpretive or additional provisions
shall contravene any applicable federal or state regulations or any provision of
the governing documents of the Fund. No interpretive or additional provisions
made as provided in the preceding sentence shall be deemed to be an amendment of
this Contract.
XII. Massachusetts Law to Apply
This Contract shall be construed and the provisions thereof
interpreted under and in accordance with the laws of the Commonwealth of
Massachusetts.
XIII. Miscellaneous
A. Assignment. This Contract may not be assigned by either party without the
written consent of the other party first being obtained. Any assignment
or consent to assignment by the Fund must be approved by resolution of its
Board of Directors or of its Executive Committee.
B. Conflict with Rules and Regulations. If any provision of this Contract,
either in its present form or as amended from time to time, limits,
qualifies, or conflicts with the Investment Company Act of 1940 and the
rules and regulations thereunder, or with any other statute, rules, and
regulations which may govern the activities of the Custodian or of the
Fund, such statutes, rules, and regulations shall be deemed to control
and supersede such provision, without nullifying or terminating the
remainder of this Contract.
IN WITNESS WHEREOF, each of the parties has caused this instrument
to be executed in its name and behalf by its fully authorized representative and
its seal to be hereunder affixed as of the 1st day of February 1980.
FINANCIAL INDUSTRIAL INCOME FUND, INC.
By: ▇. ▇. ▇▇▇▇▇▇
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Vice President
STATE STREET BANK AND TRUST COMPANY
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇
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Vice President