Ex. 99g(2)
FORM OF GLOBAL CUSTODY AGREEMENT
This AGREEMENT is effective August 20, 1998, and is among THE CHASE
MANHATTAN BANK ("Bank"), FIRSTAR TRUST COMPANY ("Customer") and TOCQUEVILLE
SMALL CAP VALUE FUND ("the Fund").
1. Customer Accounts.
Bank, acting as "Securities Intermediary" (as defined in Section 15(g)
hereof) shall establish and maintain the following accounts ("Accounts"): (a) a
Custody Account (as defined in Section 15(b) hereof) in the name of Customer on
behalf of Fund for any and all Financial Assets, which shall, except as modified
by Section 15(d) hereof, mean stocks, shares, bonds, debentures, notes,
mortgages or other obligations for the payment of money, bullion, coin and any
certificates, receipts, warrants or other instruments representing rights to
receive, purchase or subscribe for the same or evidencing or representing any
other rights or interests therein and other similar property whether
certificated or uncertificated as may be received by Bank or its Subcustodian
(as defined in Section 3 hereof) for the account of Customer on behalf of Fund,
including as an "Entitlement Holder" as defined in Section 15(c) hereof); and
(b) an account in the name of Customer ("Deposit Account") for any and
all cash in any currency received by Bank or its Subcustodian for the account of
Customer on behalf of Fund, which cash shall not be subject to withdrawal by
draft or check.
Customer warrants its authority to: 1) deposit the cash and Financial
Assets (collectively "Assets") received in the Accounts and 2) give Instructions
(as defined in Section 11 hereof) concerning the Accounts. Bank may deliver
Financial Assets of the same class in place of those deposited in the Custody
Account.
Upon written agreement among Bank, Company and Customer, additional
Accounts may be established and separately accounted for as additional Accounts
hereunder.
2. Maintenance of Financial Assets and Cash at Bank and Subcustodian
Locations.
Unless Instructions specifically require another location acceptable to
Bank:
(a) Financial Assets shall be held in the country or other jurisdiction
in which the principal trading market for such Financial Assets is located,
where such Financial Assets are to be presented for payment or where such
Financial Assets are acquired; and
(b) Cash shall be credited to an account in a country or other
jurisdiction in which such cash may be legally deposited or is the legal
currency for the payment of public or private debts.
Cash may be held pursuant to Instructions in either interest or
non-interest bearing accounts as may be available for the particular currency.
To the extent Instructions are issued and Bank can comply with such
Instructions, Bank is authorized to maintain cash balances on
deposit for Customer on behalf of Fund with itself or one of its "Affiliates" at
such reasonable rates of interest as may from time to time be paid on such
accounts, or in non-interest bearing accounts as Customer on behalf of Fund may
direct, if acceptable to Bank. For purposes hereof, the term "Affiliate" shall
mean an entity controlling, controlled by, or under common control with, Bank.
If Customer wishes to have any of its Assets held in the custody of an
institution other than the established Subcustodians as defined in Section 3 (or
their securities depositories), such arrangement must be authorized by a written
agreement, signed by Bank, Customer and Customer.
3. Subcustodians and Securities Depositories.
Bank may act hereunder through the subcustodians listed in Schedule A
hereof with which Bank has entered into subcustodial agreements
("Subcustodians"). Customer and Company authorize Bank to hold Assets in the
Accounts in accounts which Bank has established with one or more of its branches
or Subcustodians. Bank and Subcustodians are authorized to hold any of Financial
Assets in their account with any securities depository in which they
participate.
Bank reserves the right to add new, replace or remove Subcustodians.
Customer and Company shall be given reasonable notice by Bank of any amendment
to Schedule A. Upon request by Customer or Company, Bank shall identify the
name, address and principal place of business of any Subcustodian of Company's
Assets and the name and address of the governmental agency or other regulatory
authority that supervises or regulates such Subcustodian.
4. Use of Subcustodian.
(a) Bank shall identify the Assets on its books as belonging to
Customer on behalf of Fund.
(b) A Subcustodian shall hold such Assets together with assets
belonging to other customers of Bank in accounts identified on such
Subcustodian's books as custody accounts for the exclusive benefit of customers
of Bank.
(c) Any Assets in the Accounts held by a Subcustodian shall be subject
only to the instructions of Bank or its agent. Any Financial Assets held in a
securities depository for the account of a Subcustodian shall be subject only to
the instructions of such Subcustodian.
(d) Any agreement Bank enters into with a Subcustodian for holding
Bank's customers' assets shall provide that such assets shall not be subject to
any right, charge, security interest, lien or claim of any kind in favor of such
Subcustodian except for safe custody or administration, and that the beneficial
ownership of such assets shall be freely transferable without the payment of
money or value other than for safe custody or administration, or, in the case of
cash deposits, except for liens or rights in favor of creditors of the
Subcustodian arising under bankruptcy, insolvency or similar laws. Where
Securities are deposited by a Subcustodian with a securities depository, Bank
shall cause the Subcustodian to identify on its books as
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belonging to Bank, as agent, the Securities shown on the Subcustodian's
account on the books of such securities depository. The foregoing shall not
apply to the extent of any special agreement or arrangement made by Customer
with any particular Subcustodian.
5. Deposit Account Transactions.
(a) Bank or its Subcustodians shall make payments from the Deposit
Account upon receipt of Instructions which include all information required by
Bank.
(b) In the event that any payment to be made under this Section 5
exceeds the funds available in the Deposit Account, Bank, in its discretion. may
advance Company such excess amount which shall be deemed a loan payable on
demand, bearing interest at the rate customarily charged by Bank on similar
loans.
(c) If Bank credits the Deposit Account on a payable date, or at any
time prior to actual collection and reconciliation to the Deposit Account, with
interest, dividends, redemptions or any other amount due, Company shall promptly
return any such amount upon oral or written notification: (i) that such amount
has not been received in the ordinary course of business or (ii) that such
amount was incorrectly credited. If Company does not promptly return any amount
upon such notification, Bank shall be entitled, upon oral or written
notification to Company, to reverse such credit by debiting the Deposit Account
for the amount previously credited. Bank shall advise Customer, Company or an
Authorized Person regarding default in the payment of principal or income on
Securities; provided that, failure to give such advice shall not render Bank
liable for any such amount. Bank or its Subcustodian shall have no duty or
obligation to institute legal proceedings, file a claim or a proof of claim in
any insolvency proceeding or take any other action with respect to the
collection of such amount, but may act for Customer upon Instructions after
consultation with Customer and Company on behalf of Fund.
6. Custody Account Transactions.
(a) Financial Assets shall be transferred, exchanged or delivered by
Bank or its Subcustodian upon receipt by Bank of Instructions which include all
information required by Bank. Settlement and payment for Financial Assets
received for, and delivery of Financial Assets out of, the Custody Account may
be made in accordance with the customary or established securities trading or
securities processing practices and procedures in the jurisdiction or market in
which the transaction occurs, including, without limitation, delivery of
Financial Assets to a purchaser, dealer or their agents against a receipt with
the expectation of receiving later payment and free delivery. Delivery of
Financial Assets out of the Custody Account may also be made in any manner
specifically required by Instructions acceptable to Bank.
(b) Bank, in its discretion, may credit or debit the Accounts on a
contractual settlement date with cash or Financial Assets with respect to any
sale, exchange or purchase of Financial Assets. Otherwise, such transactions
shall be credited or debited to the Accounts on the date cash or Financial
Assets are actually received by Bank and reconciled to the Account.
(i) Bank may reverse credits or debits made to the Accounts in its
discretion if the related transaction fails to settle within a reasonable
period, determined by Bank in its discretion, after the contractual settlement
date for the related transaction.
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(ii) If any Financial Assets delivered pursuant to this Section 6
are returned by the recipient thereof, Bank may reverse the credits and debits
of the particular transaction at any time.
7. Actions of Bank.
Bank shall follow Instructions received regarding Assets held in the
Accounts. However, until it receives Instructions to the contrary, Bank shall:
(a) Present for payment any Financial Assets which are called, redeemed
or retired or otherwise become payable and all coupons and other income items
which call for payment upon presentation, to the extent that Bank or
Subcustodian is actually aware of such opportunities.
(b) Execute in the name of Company such ownership and other
certificates as may be required to obtain payments in respect of Financial
Assets.
(c) Exchange interim receipts or temporary Financial Assets for
definitive Financial Assets.
(d) Appoint brokers and agents for any transaction involving the
Financial Assets, including, without limitation, Affiliates of Bank or any
Subcustodian.
(e) Issue statements to Customer, at times mutually agreed upon,
identifying the Assets in the Accounts.
Bank shall send Customer an advice or notification of any transfers of
Assets to or from the Accounts. Such statements, advices or notifications shall
indicate the identity of the entity having custody of the Assets. Unless
Customer sends Bank a written exception or objection to any Bank statement
within ninety (90) days of receipt, Customer shall be deemed to have approved
such statement. In such event, or where Customer has otherwise approved any such
statement, Bank shall, to the extent permitted by law, be released, relieved and
discharged with respect to all matters set forth in such statement or reasonably
implied therefrom as though it had been settled by the decree of a court of
competent jurisdiction in an action where Customer and all persons having or
claiming in interest in Customer or Customer's Accounts on behalf of the Fund
were parties.
All collections of funds or other property paid or distributed in
respect of Financial Assets in the Custody Account shall be made at the risk of
Customer. Bank shall have no liability for any loss occasioned by delay in the
actual receipt of notice by Bank or by its Subcustodians of any payment,
redemption or other transaction regarding Financial Assets in the Custody
Account in respect of which Bank has agreed to take any action hereunder.
8. Corporate Actions; Proxies; Tax Reclaims.
(a) Corporate Actions. Whenever Bank receives information concerning
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the Financial Assets which requires discretionary action by the beneficial owner
of the Financial Assets (other than a proxy), such as subscription rights, bonus
issues, stock repurchase plans and rights offerings, or legal notices or other
material intended to be transmitted to securities holders
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("Corporate Actions"), Bank shall: (1) give Customer prompt notice of such
Corporate Actions to the extent that Bank's central corporate actions department
has actual knowledge of a Corporate Action in time to afford timely notice its
customers; and (2) take such steps as may reasonably be necessary to secure or
otherwise prevent the loss of rights relating to any Securities; provided that
the timely monitoring of publications typically used by custodians to monitor
such actions, together with the giving of the prompt notice referred to herein,
shall fulfill Bank's obligations under this Section 8(a).
When a rights entitlement or a fractional interest resulting from a
rights issue, stock dividend, stock split or similar Corporate Action is
received which bears an expiration date, Bank shall endeavor to obtain
Instructions from Customer or its Authorized Person (as defined in Section 10
hereof), but if Instructions are not received in time for Bank to take timely
action, or actual notice of such Corporate Action was received too late to seek
Instructions, Bank is authorized to sell such rights entitlement or fractional
interest and to credit the Deposit Account with the proceeds or take any other
action it deems, in good faith, to be appropriate in which case it shall be held
harmless for any such action.
(b) Proxy Voting. Bank shall provide proxy voting services, if elected
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by Customer, in accordance with the terms of the proxy voting services rider
hereto. Proxy voting services may be provided by Bank or, in whole or in part,
by one or more third parties appointed by Bank (which may be Affiliates of
Bank).
(c) Tax Reclaims.
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(i) Subject to the provisions hereof, Bank shall apply for a
reduction of withholding tax and any refund of any tax paid or tax credits which
apply in each applicable market in respect of income payments on Financial
Assets for the benefit of Customer and Company which Bank believes may be
available to such Customer.
(ii) The provision of tax reclaim services by Bank is conditional
upon Bank receiving from the beneficial owner of Financial Assets (A) a
declaration of its identity and place of residence and (B) certain other
documentation (pro forma copies of which are available from Bank). Customer and
Company acknowledge that, if Bank does not receive such declarations,
documentation and information, additional United Kingdom taxation shall be
deducted from all income received in respect of Financial Assets issued outside
the United Kingdom and that U.S. non-resident alien tax or U.S. backup
withholding tax shall be deducted from U.S. source income. Customer and Company
shall provide to Bank such documentation and information as it may require in
connection with taxation, and warrants that, when given, this information shall
be true and correct in every respect, not misleading in any way, and contain all
material information. Customer undertakes to notify Bank immediately if any such
information requires updating or amendment.
(iii) Bank shall not be liable to Customer, the Company or any
third party for any taxes, fines or penalties payable by Bank, Company or
Customer, and shall be indemnified by the appropriate party to this Agreement
accordingly, resulting from the inaccurate completion of documents by Customer,
Company or any third party acting as agent for Customer or Company, or as a
result of the provision to Bank or any third party of inaccurate or misleading
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information or the withholding of material information by Customer, Company or
any other third party, or as a result of any delay of any revenue authority or
any other matter beyond the control of Bank.
(iv) Customer and Company confirm that Bank is authorized to deduct
from any cash received or credited to the Deposit Account any taxes or levies
required by any revenue or governmental authority for whatever reason in respect
of the Securities or Cash Accounts.
(v) Bank shall perform tax reclaim services only with respect to
taxation levied by the revenue authorities of the countries notified to Customer
from time to time and Bank may, by notification in writing, at its absolute
discretion, supplement or amend the markets in which the tax reclaim services
are offered. Other than as expressly provided in this sub-clause, Bank shall
have no responsibility with regard to Customer's and Company's tax position or
status in any jurisdiction.
(vi) Customer confirms that Bank is authorized to disclose any
information requested by any revenue authority or any governmental body in
relation to Customer or the Financial Assets and/or Cash held for Customer.
(vii) Tax reclaim services may be provided by Bank or, in whole or in
part, by one or more third parties appointed by Bank (which may be Affiliates of
Bank); provided that Bank shall be liable for the performance of any such third
party to the same extent as Bank would have been if it performed such services
itself.
9. Nominees.
Financial Assets which are ordinarily held in registered form may be
registered in a nominee name of Bank, Subcustodian or securities depository, as
the case may be. Bank may without notice to Customer or Company cause any such
Financial Assets to cease to be registered in the name of any such nominee and
to be registered in the name of Company on behalf of Fund. In the event that any
Financial Assets registered in a nominee name are called for partial redemption
by the issuer, Bank may allot the called portion to the respective beneficial
holders of such class of security in any manner Bank deems to be fair and
equitable. Customer shall hold Bank, Subcustodians, and their respective
nominees harmless from any liability arising directly or indirectly from their
status as a mere record holder of Financial Assets in the Custody Account.
10. Authorized Persons.
As used herein, the term "Authorized Person" means employees or agents
including investment managers as have been designated by written notice from
Customer or Company or their respective designated agents to act on behalf of
Customer or Company on behalf of the Fund. Such persons shall continue to be
Authorized Persons until such time as Bank receives Instructions from Customer
or Company or their respective designated agent that any such employee or agent
is no longer an Authorized Person.
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11. Instructions.
The term "Instructions" means instructions of any Authorized Person
received by Bank, via telephone, telex, facsimile transmission, bank wire or
other teleprocess or electronic instruction or trade information system
acceptable to Bank which Bank believes in good faith to have been given by
Authorized Persons or which are transmitted with proper testing or
authentication pursuant to terms and conditions which Bank may specify. Unless
otherwise expressly provided, all Instructions shall continue in full force and
effect until canceled or superseded. The term "Instructions" includes, without
limitation, instructions to sell, assign, transfer, deliver, purchase or receive
for the Custody Account, any and all stocks, bonds and other Financial Assets or
to transfer funds in the Cash Account.)
Any Instructions delivered to Bank by telephone shall promptly thereafter
be confirmed in writing by an Authorized Person (which confirmation may bear the
facsimile signature of such Person), but Customer and Company shall hold Bank
harmless for the failure of an Authorized Person to send such confirmation in
writing, the failure of such confirmation to conform to the telephone
instructions received or Bank's failure to produce such confirmation at any
subsequent time. Bank may electronically record any Instructions given by
telephone, and any other telephone discussions with respect to the Custody
Account. Customer shall be responsible for safeguarding any testkeys,
identification codes or other security devices which Bank shall make available
to Customer or its Authorized Persons.
12. Standard of Care; Liabilities.
(a) Bank shall be responsible for the performance of only such duties
as are set forth herein or expressly contained in Instructions which are
consistent with the provisions hereof as follows:
(i) Bank shall use reasonable care with respect to its obligations
hereunder and the safekeeping of Assets. The Bank shall be liable to the
Customer for any loss which shall occur as the result of the failure of a
Subcustodian to exercise reasonable care with respect to the safekeeping of such
Assets to the same extent that the Bank would be liable to the Customer if the
Bank were holding such Assets in New York. In the event of any loss to Customer
by reason of the failure of Bank or its Subcustodian to utilize reasonable care,
Bank shall be liable to Customer only to the extent of Customer's direct
damages, to be determined based on the market value of the property which is the
subject of the loss at the date of discovery of such loss and without reference
to any special conditions or circumstances. Bank shall have no liability
whatsoever for any consequential, special, indirect or speculative loss or
damages (including, but not limited to, lost profits) suffered by Customer or
Company, as appropriate, in connection with the transactions contemplated hereby
and the relationship established hereby even if Bank has been advised as to the
possibility of the same and regardless of the form of the action.
(ii) Subject to Bank having selected a Subcustodian with reasonable
care and Bank's duty to use reasonable care in the monitoring of a
Subcustodian's financial condition as reflected in its published financial
statements and other publicly available financial information, Bank shall not be
responsible for the insolvency of any Subcustodian which is not a branch or
Affiliate of Bank. Bank shall not be responsible for any act, omission, default
or the solvency of
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any broker or agent which it or a Subcustodian appoints unless such appointment
was made negligently or in bad faith.
(iii) Bank shall be indemnified by, and without liability to Customer
or Company for any action taken or omitted by Bank whether pursuant to
Instructions or otherwise within the scope hereof if such act or omission was in
good faith, without negligence. In performing its obligations hereunder, Bank
may rely on the genuineness of any document which it believes in good faith to
have been validly executed.
(iv) Company shall pay for and hold Bank harmless from any liability
or loss resulting from the imposition or assessment of any taxes or other
governmental charges, and any related expenses with respect to income from or
Assets in the Accounts.
(v) Bank shall be entitled to rely, and may act, upon the advice of
counsel (who may be counsel for Customer and/or Company) on all matters and
shall be without liability for any action reasonably taken or omitted pursuant
to such advice.
(vi) Bank need not maintain any insurance for the benefit of Customer
and Company.
(vii) Without limiting the foregoing, Bank shall not be liable for any
loss which results from: 1) the general risk of investing, or 2) investing or
holding Assets in a particular country including, but not limited to, losses
resulting from malfunction, interruption of or error in the transmission of
information caused by any machines or system or interruption of communication
facilities, abnormal operating conditions, nationalization, expropriation or
other governmental actions; regulation of the banking or securities industry;
currency restrictions, devaluations or fluctuations; and market conditions which
prevent the orderly execution of securities transactions or affect the value of
Assets; except that, with respect to the failure of machines, systems,
interruption of communication facilities or abnormal operating conditions on
Bank or a Subcustodian's premises or otherwise within the control of Bank or a
Subcustodian, Bank shall not be so excused to the extent that such failure was
on account of Bank's or the Subcustodian's (as the case may be) negligence.
(viii) No party shall be liable to the others for any loss due to
forces beyond its control including, but not limited to strikes or work
stoppages, acts of war (whether declared or undeclared) or terrorism,
insurrection, revolution, nuclear fusion, fission or radiation, or acts of God.
(b) Consistent with and without limiting the first paragraph of this
Section 12, it is specifically acknowledged that Bank shall have no duty or
responsibility to:
(i) question Instructions or make any suggestions to Customer or
an Authorized Person regarding such Instructions;
(ii) supervise or make recommendations with respect to investments
or the retention of Financial Assets;
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(iii) evaluate or report to Customer or an Authorized Person regarding
the financial condition of any broker, agent or other party to which Financial
Assets are delivered or payments are made pursuant hereto, except for brokers
appointed to dispose of fractional shares; and
(iv) review or reconcile trade confirmations received from brokers.
Customer, Company or its Authorized Persons issuing Instructions shall bear any
responsibility to review such confirmations against Instructions issued to and
statements issued by Bank.
(c) Customer and Company authorize Bank to act hereunder notwithstanding
that Bank or any of its divisions or Affiliates may have a material interest in
a transaction, or circumstances are such that Bank may have a potential conflict
of duty or interest including the fact that Bank or any of its Affiliates may
provide brokerage services to other customers, act as financial advisor to the
issuer of Financial Assets, act as a lender to the issuer of Financial Assets,
act in the same transaction as agent for more than one customer, have a material
interest in the issue of Financial Assets, or earn profits from any of the
activities listed herein.
13. Fees and Expenses.
Customer on behalf of Fund shall pay Bank for its services hereunder the
fees set forth in Schedule B hereto or such other amounts as may be agreed upon
in writing, together with Bank's reasonable out-of-pocket or incidental
expenses, including, but not limited to, legal fees. Bank shall have a lien on
and is authorized to charge any Accounts of Customer opened on behalf of Fund
for any amount owing by Customer on behalf of Fund to Bank under any provision
hereof
14. Miscellaneous.
(a) Foreign Exchange Transactions. To facilitate the administration of
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Customer's trading and investment activity on behalf of Fund, Bank is authorized
to enter into spot or forward foreign exchange contracts with Company or an
Authorized Person for Company and may also provide foreign exchange through its
subsidiaries, Affiliates or Subcustodians. Instructions, including standing
instructions, may be issued with respect to such contracts but Bank may
establish rules or limitations concerning any foreign exchange facility made
available. In all cases where Bank, its subsidiaries, Affiliates or
Subcustodians enter into a foreign exchange contract related to Accounts, the
terms and conditions of the then current foreign exchange contract of Bank, its
subsidiary, Affiliate or Subcustodian and, to the extent not inconsistent, this
Agreement shall apply to such transaction.
(b) Certification of Residency, etc. Customer and Company each certifies
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that it is a resident of the United States and shall notify Bank of any changes
in residency. Bank may rely upon this certification or the certification of such
other facts as may be required to administer Bank's obligations hereunder.
Customer or Company, as appropriate, shall indemnify Bank against all losses,
liability, claims or demands arising directly or indirectly from any such
certifications.
(c) Access to Records. Bank shall allow Customer's and Fund's independent
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public accountant reasonable access to the records of Bank relating to the
Assets as is required in connection with their examination of books and records
pertaining to Customer's and
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Company's affairs. Subject to restrictions under applicable law, Bank shall also
obtain an undertaking to permit Customer's and Company's independent public
accountants reasonable access to the records of any Subcustodian which has
physical possession of any Assets as may be required in connection with the
examination of Customer's and Company's books and records.
(d) Governing Law; Successors and Assigns, Captions. THIS AGREEMENT SHALL
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BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE
AND TO BE PERFORMED IN NEW YORK and shall not be assignable by any party, but
shall bind the successors in interest of Customer, Company and Bank. The
captions given to the sections and subsections of this Agreement are for
convenience of reference only and are not to be used to interpret this
Agreement.
(e) Entire Agreement; Applicable Riders. Customer and Company each
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represent that the Assets deposited in the Accounts are (Check one):
X Investment Company assets subject to certain U.S. Securities and
---
Exchange Commission rules and regulations;
___ Other (specify)
This Agreement consists exclusively of this document together with
Schedules A and B, Exhibits I - _____ and the following Rider(s) [Check
applicable rider(s)]:
X INVESTMENT COMPANY
---
___ PROXY VOTING
___ SPECIAL TERMS AND CONDITIONS
There are no other provisions hereof and this Agreement supersedes any
other agreements, whether written or oral, between the parties. Any amendment
hereto must be in writing, executed by both parties.
(f) Severability. In the event that one or more provisions hereof are held
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invalid, illegal or unenforceable in any respect on the basis of any particular
circumstances or in any jurisdiction, the validity, legality and enforceability
of such provision or provisions under other circumstances or in other
jurisdictions and of the remaining provisions shall not in any way be affected
or impaired.
(g) Waiver. Except as otherwise provided herein, no failure or delay on
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the part of either party in exercising any power or right hereunder operates as
a waiver, nor does any single or partial exercise of any power or right preclude
any other or further exercise, or the exercise of any other power or right. No
waiver by a party of any provision hereof, or waiver of any breach or default,
is effective unless in writing and signed by the party against whom the waiver
is to be enforced.
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(h) Representations and Warranties.
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(i) Customer hereby represents and warrants to Bank that: (A) it has
full authority and power to deposit and control the Financial Assets and cash
deposited in the Accounts; (B) it has all necessary authority to use Bank as its
custodian; (C) this Agreement constitutes its legal, valid and binding
obligation, enforceable in accordance with its terms; (D) it shall have full
authority and power to borrow moneys and enter into foreign exchange
transactions; and (E) it has not relied on any oral or written representation
made by Bank or any person on its behalf, and acknowledges that this Agreement
sets out to the fullest extent the duties of Bank.
(ii) Bank hereby represents and warrants to Customer and Company
that: (A) it has the full power and authority to perform its obligations
hereunder; (B) this Agreement constitutes its legal, valid and binding
obligation, enforceable in accordance with its terms; and (C) that it has taken
all necessary action to authorize the execution and delivery hereof.
(iii) Company hereby represents and warrants to Bank that: (A) it has
the full power and authority to perform its obligations hereunder; (B) this
Agreement constitutes its legal, valid and binding obligation, enforceable in
accordance with its terms; and (C) that it has taken all necessary action to
authorize tile execution and delivery hereof.
(i) Notices. All notices hereunder shall be effective when actually
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received. Any notices or other communications which may be required hereunder
are to be sent to the parties at the following addresses or such other addresses
as may subsequently be given to the other party in writing: (a) Bank: The Chase
Manhattan Bank, 4 Chase MetroTech Center, Brooklyn, N.Y. 11245, Attention:
Global Investor Services, Investment Management Group; and (b) Customer: Firstar
Trust Company, 000 Xxxx Xxxxxxxx Xx., Xxxxxxxxx, XX 00000, att: Xxxx Xxxxxx; (c)
Fund: TOCQUEVILLE SMALL CAP VALUE FUND, 0000 Xxxxxxxx, Xxx Xxxx, XX00000, att:
Xxxxxx Xxxxx.
(j) Termination. This Agreement may be terminated by Customer, Company or
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Bank by giving sixty (60) days written notice to the other, provided that such
notice to Bank shall specify the names of the persons to whom Bank shall deliver
the Assets in the Accounts. If notice of termination is given by Bank, Customer,
on behalf of Fund, shall, within sixty (60) days following receipt of the
notice, deliver to Bank Instructions specifying the names of the persons to whom
Bank shall deliver the Assets. In either case Bank shall deliver the Assets to
the persons so specified, after deducting any amounts which Bank determines in
good faith to be owed to it under Section 13. If within sixty (60) days
following receipt of a notice of termination by Bank, Bank does not receive
Instructions from Customer specifying the names of the persons to whom Bank
shall deliver the Assets, Bank, at its election, may deliver the Assets to a
bank or trust company doing business in the State of New York to be held and
disposed of pursuant to the provisions hereof, or to Authorized Persons, or may
continue to hold the Assets until Instructions are provided to Bank.
(k) Money Laundering. Customer warrants and undertakes to Bank for
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itself and its agents that all Customer's customers are properly identified in
accordance with U.S. Money Laundering Regulations as in effect from time to
time.
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(l) Imputation of Certain Information. Bank shall not be held
---------------------------------
responsible for and shall not be required to have regard to information held by
any person by imputation or information of which Bank is not aware by virtue of
a "Chinese Wall" arrangement. If Bank becomes aware of confidential information
which in good faith it feels inhibits it from effecting a transaction hereunder
Bank may refrain from effecting it.
(m) Separate Portfolio. The parties acknowledge that the Fund is a
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separate investment portfolio of the Company. All obligations of the Company
hereunder are limited to the Fund and any amount owed by the Company hereunder
shall be paid only out of the assets and property of the Fund.
(n) Business Trust. A copy of the Certificate of Trust of the Company
--------------
is on file with the Secretary of the State of Delaware and notice is hereby
given that this Agreement is not binding upon any of the trustees, officers or
shareholders of the Company individually, but are binding only upon the assets
and property of Fund. Bank agrees that no shareholder, trustee or officer of
Company or Fund may be held personally liable or responsible for any obligation
of Fund arising hereunder.
15. Definitions.
As used herein, the following terms shall have the meaning hereinafter
stated:
(a) "Certificated Security" shall mean a security that is represented
by a certificate.
(b) "Custody Account" means each Securities custody account on Bank's
records to which Financial Assets are or may be credited pursuant hereto.
(c) "Entitlement Holder" shall mean the person on the records of a
Securities Intermediary as the person having a Securities Entitlement against
the Securities Intermediary.
(d) "Financial Asset" shall mean, as the context requires, either the
asset itself or the means by which a person's claim to it is evidenced,
including a Certificated Security or Uncertificated Security, a security
certificate, or a Securities Entitlement.
(e) "Securities" means stocks, bonds, rights, warrants and other
negotiable and non- negotiable paper whether issued as Certificated Securities
or Uncertificated Securities and commonly traded or dealt in on securities
exchanges or financial markets, and other obligations of an issuer, or shares,
participations and interests in an issuer recognized in an area in which it is
issued or dealt in as a medium for investment and any other property as shall be
acceptable to Bank for the Custody Account.
(f) "Securities Entitlement" shall mean the rights and property
interest of an Entitlement Holder with respect to a Financial Asset as set forth
in Part 5 of the Uniform Commercial Code.
(g) "Securities Intermediary" shall mean Bank, a Subcustodian, a
securities depository, and any other financial institution which in the ordinary
course of business maintains custody accounts for others and acts in that
capacity.
12
(h) "Uncertificated Security" shall mean a security that is not
represented by a certificate.
(i) "Uniform Commercial Code" means Article 8 of the Uniform Commercial
Code of the State of New York, as the same may be amended from time to time.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first-above written.
TOCQUEVILLE SMALL CAP VALUE FUND
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Title: Vice President
Date: August 13, 1998
FIRSTAR TRUST COMPANY
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------
Title: Vice President
Date: July 27, 0000
XXX XXXXX XXXXXXXXX XXXX
By:__________________________________________
Title:
Date:
00
XXXXX XX XXX XXXX )
: ss.
COUNTY OF NEW YORK )
On this 13th day of August, 1998, before me personally came XXXXXX XXXXX,
to me known, who being by me duly sworn, did depose and say that he resides in
New York, NY at 0000 Xxxxxxxx, that he is Vice President of Tocqueville Small
Cap Value Fund, the entity described in and which executed the foregoing
instrument; that he knows the seal of said entity, that the seal affixed to said
instrument is such seal, that it was so affixed by order of said entity, and
that he signed his name thereto by like order.
Sworn to before me this 13th XXXXXX XXXXXX
Notary Public State of New York
day of August, 1998 00-0000000 Qualified in Nassau County
Certificate Filed in New York County
/s/ Xxxxxx Xxxxxx Commission Expires October 31, 1998
Notary
14
STATE OF WISCONSIN )
: ss.
COUNTY OF MILWAUKEE )
On this 29th day of July, 1998, before me personally came XXXXX XXXXX, to
me known, who being by me duly sworn, did depose and say that he resides in
Milwaukee, WI at 000 X. Xxxxxxxx Xx., that he is Vice President of Firstar Trust
Company, the entity described in and which executed the foregoing instrument;
that he knows the seal of said entity, that the seal affixed to said instrument
is such seal, that it was so affixed by order of said entity, and that he signed
his name thereto by like order.
Sworn to before me this 27th
day of July, 0000
Xxxxxx
00
XXXXX XX XXX XXXX )
: ss.
COUNTY OF NEW YORK )
On this day of , 199 , before me personally came ,
to me known, who being by me duly sworn, did depose and say that he/she resides
in at , that he/she is Vice President of THE CHASE
MANHATTAN BANK, the corporation described in and which executed the foregoing
instrument; that he knows the seal of said corporation, that the seal affixed to
said instrument is such seal, that it was so affixed by order of the Board of
Directors of said corporation, and that he/she signed his/her name thereto by
like order.
Sworn to before me this
day of ________, 199__
Notary
16
Investment Company Rider to Global Custody Agreement
among THE CHASE MANHATTAN BANK,
FIRSTAR TRUST COMPANY, and TOCQUEVILLE SMALL CAP VALUE FUND
effective August, 1998
The following modifications are made to the Agreement:
A. Add a new Section 16 to the Agreement as follows:
"16. Compliance with SEC rule 17f-5.
------------------------------
(a) Company's board of directors (or equivalent body) (hereinafter
'Board') hereby delegates to Bank, and, except as to the country or countries as
to which Bank may, from time to time, advise Company that it does not accept
such delegation, Bank hereby accepts the delegation to it, of the obligation to
perform as Company's `Foreign Custody Manager' (as that term is defined in SEC
rule 17f-5(a)(2)), both for the purpose of selecting Eligible Foreign Custodians
(as that term is defined in SEC rule 17f-5(a)(1), and as the same may be amended
from time to time, or that have otherwise been made exempt pursuant to an SEC
exemptive order) to hold Assets and of evaluating the contractual arrangements
with such Eligible Foreign Custodians (as set forth in SEC rule 17f-5(c)(2));
provided that, the term Eligible Foreign Custodian shall not include any
`Compulsory Depository.' A Compulsory Depository shall mean a securities
depository or clearing agency the use of which is compulsory because: (1) its
use is required by law or regulation, (2) securities cannot be withdrawn from
the depository, or (3) maintaining securities outside the depository is not
consistent with prevailing custodial practices in the country which the
depository serves. Compulsory Depositories used by Chase as of the date hereof
are set forth in Appendix 1-A hereto, and as the same may be amended on notice
to Company from time to time.
(b) In connection with the foregoing, Bank shall:
(i) provide written reports notifying Company's Board of the placement of
Assets with particular Eligible Foreign Custodians and of any material
change in the arrangements with such Eligible Foreign Custodians, with such
reports to be provided to Company's Board at such times as the Board deems
reasonable and appropriate based on the circumstances of Company's foreign
custody arrangements (and until further notice from Company such reports
shall be provided not less than quarterly with respect to the placement of
Assets with particular Eligible Foreign Custodians and with reasonable
promptness upon the occurrence of any material change in the arrangements
with such Eligible Foreign Custodians);
(ii) exercise such reasonable care, prudence and diligence in performing as
Company's Foreign Custody Manager as a person having responsibility for the
safekeeping of Assets would exercise;
17
(iii) in selecting an Eligible Foreign Custodian, first have determined
that Assets placed and maintained in the safekeeping of such Eligible
Foreign Custodian shall be subject to reasonable care, based on the
standards applicable to custodians in the relevant market, after having
considered all factors relevant to the safekeeping of such Assets,
including, without limitation, those factors set forth in SEC rule
17f-5(c)(1)(i)-(iv);
(iv) determine that the written contract with the Eligible Foreign
Custodian (or, in the case of an Eligible Foreign Custodian that is a
securities depository or clearing agency, such contract, the rules or
established practices or procedures of the depository, or any combination
of the foregoing) requires that the Eligible Foreign Custodian will provide
reasonable care for Assets based on the standards applicable to custodians
in the relevant market. In making this determination, Bank shall consider
the provisions of Rule 17f-5(c)(2), together with whether Bank shall be
liable to Company for any loss which shall occur as the result of the
failure of the Eligible Foreign Custodian to exercise reasonable care with
respect to the safekeeping of such Assets to the same extent that Bank
would be liable to Company if Bank were holding such Assets in New York;
and
(v) have established a system to monitor the continued appropriateness of
maintaining Assets with particular Eligible Foreign Custodians and of the
governing contractual arrangements; it being understood, however, that in
the event that Bank shall have determined that the existing Eligible
Foreign Custodian in a given country would no longer afford Assets
reasonable care and that no other Eligible Foreign Custodian in that
country would afford reasonable care, Bank shall promptly so advise Company
and shall then act in accordance with the Instructions of Company with
respect to the disposition of the affected Assets.
Subject to (b)(i)-(v) above, Bank is hereby authorized to place and maintain
Assets on behalf of Company with Eligible Foreign Custodians pursuant to a
written contract deemed appropriate by Bank.
(c) Except as expressly provided herein, Customer and Company shall be
solely responsible to assure that the maintenance of Assets hereunder complies
with the rules, regulations, interpretations and exemptive orders promulgated by
or under the authority of the SEC.
(d) Bank represents to Company that it is a U.S. Bank as defined in Rule
17f-5(a)(7). Company represents to Bank that: (1) the Assets being placed and
maintained in Bank's custody are subject to the Investment Company Act of 1940,
as amended (the `1940 Act'), as the same may be amended from time to time; (2)
its Board: (i) has determined that it is reasonable to rely on Bank to perform
as Company's Foreign Custody Manager (ii) or its Foreign Custody Manager (other
than Bank) shall have determined that Company may maintain Assets in each
country in which Company's Assets shall be held hereunder and determined to
accept the risks arising therefrom (including, but not limited to, a country's
financial infrastructure (and including any Compulsory Depository operating in
such country), prevailing custody and settlement practices, laws applicable to
the safekeeping and recovery of Assets held in custody, and the likelihood of
nationalization, currency controls and the like)."
18
B. Add the following after the first sentence of Section 3 of the
Agreement: "At the request of Customer, Bank may, but need not, add to Schedule
A an Eligible Foreign Custodian that is either a bank or a non-Compulsory
Depository where Bank has not acted as Foreign Custody Manager with respect to
the selection thereof. Bank shall notify Customer in the event that it elects
not to add any such entity."
C. Add the following language to the end of Section 3 of the Agreement:
"The term Subcustodian as used herein shall mean the following:
(a) a `U.S. Bank,' which shall mean a U.S. bank as defined in SEC rule
17f-5(a)(7);
(b) an `Eligible Foreign Custodian,' which shall mean (i) a banking
institution or trust company, incorporated or organized under the laws of a
country other than the United States, that is regulated as such by that
country's government or an agency thereof; (ii) a majority-owned direct or
indirect subsidiary of a U.S. bank or bank holding company which subsidiary
is incorporated or organized under the laws of a country other than the
United States; (iii) a securities depository or clearing agency,
incorporated or organized under the laws of a country other than the United
States, that acts as a system for the central handling of securities or
equivalent book-entries in that country and that is regulated by a foreign
financial regulatory authority as defined under section 2(a)(50) of the
1940 Act; (iv) a securities depository or clearing agency organized under
the laws of a country other than the United States to the extent acting as
a transnational system for the central handling of securities or equivalent
book-entries; and (v) any other entity that shall have been so qualified by
exemptive order, rule or other appropriate action of the SEC.
For purposes of clarity, it is agreed that as used in Section 12(a)(i), the term
Subcustodian shall include neither any Eligible Foreign Custodian as to which
Bank has not acted as Foreign Custody Manager nor any Compulsory Depository."
19
Appendix 1-A
COMPULSORY DEPOSITORIES
20
GLOBAL PROXY SERVICE RIDER
To Global Custody Agreement
among
THE CHASE MANHATTAN BANK,
FIRSTAR TRUST COMPANY, and
TOCQUEVILLE SMALL CAP VALUE FUND
effective August __, 1998.
1. Global Proxy Services ("Proxy Services") shall be provided for the
countries listed in the procedures and guidelines ("Procedures") furnished
to Customer, as the same may be amended by Bank from time to time on prior
notice to Customer. The Procedures are incorporated by reference herein and
form a part of this Rider.
2. Proxy Services shall consist of those elements as set forth in the
Procedures, and shall include (a) notifications ("Notifications") by Bank
to Customer of the dates of pending shareholder meetings, resolutions to be
voted upon and the return dates as may be received by Bank or provided to
Bank by its Subcustodians or third parties, and (b) voting by Bank of
proxies based on Customer Instructions. Original proxy materials or copies
thereof shall not be provided. Notifications shall generally be in English
and, where necessary, shall be summarized and translated from such
non-English materials as have been made available to Bank or its
Subcustodian. In this respect Bank's only obligation is to provide
information from sources it believes to be reliable and/or to provide
materials summarized and/or translated in good faith. Bank reserves the
right to provide Notifications, or parts thereof, in the language received.
Upon reasonable advance request by Customer, backup information relative to
Notifications, such as annual reports, explanatory material concerning
resolutions, management recommendations or other material relevant to the
exercise of proxy voting rights shall be provided as available, but without
translation.
3. While Bank shall attempt to provide accurate and complete Notifications,
whether or not translated, Bank shall not be liable for any losses or other
consequences that may result from reliance by Customer upon Notifications
where Bank prepared the same in good faith.
4. Notwithstanding the fact that Bank may act in a fiduciary capacity with
respect to Customer under other agreements or otherwise under the
Agreement, in performing Proxy Services Bank shall be acting solely as the
agent of Customer, and shall not exercise any discretion with regard to
such Proxy Services.
5. Proxy voting may be precluded or restricted in a variety of circumstances,
including, without limitation, where the relevant Financial Assets are: (i)
on loan; (ii) at registrar
21
for registration or reregistration; (iii) the subject of a conversion or
other corporate action; (iv) not held in a name subject to the control of
Bank or its Subcustodian or are otherwise held in a manner which precludes
voting; (v) not capable of being voted on account of local market
regulations or practices or restrictions by the issuer; or (vi) held in a
margin or collateral account.
6. Customer acknowledges that in certain countries Bank may be unable to vote
individual proxies but shall only be able to vote proxies on a net basis
(e.g., a net yes or no vote given the voting instructions received from all
---
customers).
7. Customer shall not make any use of the information provided hereunder,
except in connection with the funds or plans covered hereby, and shall in
no event sell, license, give or otherwise make the information provided
hereunder available, to any third party, and shall not directly or
indirectly compete with Bank or diminish the market for Proxy Services by
provision of such information, in whole or in part, for compensation or
otherwise, to any third party.
8. The names of Authorized Persons for Proxy Services shall be furnished to
Bank in accordance with ss.10 of the Agreement. Proxy Services fees shall
be as set forth in ss.13 of the Agreement or as separately agreed.
22
SPECIAL TERMS AND CONDITIONS RIDER
----------------------------------
GLOBAL CUSTODY AGREEMENT
WITH /s/ Xxxxxx X. Xxxxx
-------------------------------------
Tocq. Small Cap Value
DATE August 13, 1998
-------------------------------------
23
DOMESTIC ONLY
SPECIAL TERMS AND CONDITIONS RIDER
----------------------------------
Domestic Corporate Actions and Proxies
--------------------------------------
With respect to domestic U.S. and Canadian Financial Assets (the latter if held
in DTC), the following provisions shall apply rather than the provisions of
Section 8 of the Agreement and the Global Proxy Service rider:
Bank shall send to Customer or the Authorized Person for a Custody
Account, such proxies (signed in blank, if issued in the name of Bank's
nominee or the nominee of a central depository) and communications with
respect to Financial Assets in the Custody Account as call for voting
or relate to legal proceedings within a reasonable time after
sufficient copies are received by Bank for forwarding to its customers.
In addition, Bank shall follow coupon payments, redemptions, exchanges
or similar matters with respect to Financial Assets in the Custody
Account and advise Customer or the Authorized Person for such Account
of rights issued, tender offers or any other discretionary rights with
respect to such Financial Assets, in each case, of which Bank has
received notice from the issuer of the Financial Assets, or as to which
notice is published in publications routinely utilized by Bank for this
purpose.
Fees
----
The fees referenced in Section 13 hereof cover only domestic and euro-dollar
holdings. There shall be no Schedule A hereto, as there are no foreign assets in
the Accounts.
24
DOMESTIC AND GLOBAL
SPECIAL TERMS AND CONDITIONS RIDER
----------------------------------
Domestic Corporate Actions and Proxies
--------------------------------------
With respect to domestic U.S. and Canadian Financial Assets (the latter if held
in DTC), the following provisions shall apply rather than the pertinent
provisions of Section 8 of the Agreement and the Global Proxy Service rider:
Bank shall send to Customer or the Authorized Person for a Custody Account,
such proxies (signed in blank, if issued in the name of Bank's nominee or
the nominee of a central depository) and communications with respect to
Financial Assets in the Custody Account as call for voting or relate to
legal proceedings within a reasonable time after sufficient copies are
received by Bank for forwarding to its customers. In addition, Bank shall
follow coupon payments, redemptions, exchanges or similar matters with
respect to Financial Assets in the Custody Account and advise Customer or
the Authorized Person for such Account of rights issued, tender offers or
any other discretionary rights with respect to such Financial Assets, in
each case, of which Bank has received notice from the issuer of the
Financial Assets, or as to which notice is published in publications
routinely utilized by Bank for this purpose.
25
CHASE GLOBAL SECURITIES SERVICES
-----------
FEE AGREEMENT BETWEEN
THE CHASE MANHATTAN BANK, N.A.
AND
FIRSTAR TRUST COMPANY
I. PORTFOLIO BASIS POINT FEE
Market Value Basis Points
------------ ------------
$0 to $150MM 14.0
$151MM to $200MM 12.0
Over $200MM 10.0
II. GLOBAL STANDARD PRICE BY COUNTRY BANDS (SEE ATTACHED)
Asset Holdings Fee Per Transaction Fee
------------------ -------------------
Band "A" -0- Basis Points $ 30.00
Band "B" -0- Basis Points $ 40.00
Band "C" -0- Basis Points $ 60.00
Band "D" -0- Basis Points $ 90.00
Band "E" -0- Basis Points $100.00
Band "F" -0- Basis Points $120.00
Band "G" 20.0 Basis Points $135.00
Band "H" 25.0 Basis Points $140.00
III. OUT OF POCKET EXPENSES
Billed as incurred (e.g. scrip fees, stamp duty, transporting securities
out of local market)
IV. GLOBAL SECURITIES LENDING
60%/40% Split in clients favor (50%/50% with indemnification)
V. INFOSTATION
Current installations at Firstar are free. Additional or client
installs are subject to a $2500 installation fee plus expenses
VI. ANNUAL VIP ACCOUNTING FEES
Billed quarterly - $15,000 per portfolio
VII. PROXY SERVICE FEES
Notification - CDS $25 per meeting
FAX/TELEX $50 per meeting
Voting $75 per vote
26
CHASE GLOBAL SECURITIES SERVICES
-----------
GLOBAL CUSTODY
COUNTRY BANDS
BAND "A" BAND "B" BAND "C"
-------- -------- --------
Japan Germany Australia New Zealand
CEDEL Netherlands Belgium Norway
United States Canada Denmark Sweden
EUROCLEAR Switzerland France United Kingdom
Ireland
BAND "D" BAND "E" BAND "F"
-------- -------- --------
Austria Luxembourg Mexico Argentina Jordan
Finland Malaysia Spain Brazil Pakistan
Hong Kong Singapore Thailand Chile Philippines
Italy Turkey Greece Portugal
Indonesia Taiwan
EMERGING MARKETS BANDS
BAND "G" BAND "H"
-------- --------
Colombia Poland Bangladesh Israel Slovak Rep.
Hungary Shanghai/Shenzhen Botswana Kenya South Africa
India Sri Lanka Czech Republic Mauritius Tunisia
Korea Venezuela Egypt Morocco Uruguay
Ghana Peru Zambia
Zimbabwe
27
CHASE GLOBAL SECURITIES SERVICES
-----------
THE REPORTS AND SERVICES THAT ARE INCLUDED IN THE GLOBAL CUSTODY SERVICE AREAS
FOLLOWS:
GLOBAL CUSTODY
--------------
. SAFEKEEPING
. PROCESSING OF SECURITY TRANSACTIONS
. AUTO-CREDIT (INCOME COLLECTION)
. AUTOSETTLE
. EFFECTING CORPORATE ACTIONS
. TAX RECLAIMS
MULTI-CURRENCY VALUATION REPORTS
--------------------------------
. SCHEDULES AND FREQUENCY TO MEET NEEDS
. CUSTOMER ON-LINE SYSTEM (DIAL UP REPORT CAPABILITY)
CASH MANAGEMENT
---------------
. DAILY COMMUNICATIONS WITH INVESTMENT ADVISOR
. CURRENCY CONVERSION
TRANSFERS TO SUCCESSOR CUSTODIANS
---------------------------------
. SEE COUNTRY BANDS
THIS FEE AGREEMENT WILL BE IN EFFECT FOR A TWO YEAR PERIOD FROM 11/1/95 THROUGH
10/31/97.
THE CHASE MANHATTAN BANK, N.A. FIRSTAR TRUST COMPANY
BY: /s/ Xxxxx Xxxxxx BY:__________________________
--------------------------
DATE: 12/7/95 DATE: 3/18/96
------------------------- ------------------------
28
