CUSTODIAN AND FUND ACCOUNTING AGREEMENT
Between
THE INTERNATIONAL EQUITY PORTFOLIO
and
THE BANK OF NEW YORK
TABLE OF CONTENTS
Page
1. Employment of Custodian and Property to be Held by It....................................................1
2. Duties of the Custodian with Respect to Property of the Portfolios Held By the Custodian in the United
States...................................................................................................2
2.1 Holding Securities..............................................................................2
2.2 Deliveries of Securities........................................................................2
2.3 Registration of Securities......................................................................5
2.4 Bank Accounts...................................................................................6
2.5 Availability of Federal Funds...................................................................6
2.6 Collection of Income............................................................................7
2.7 Payment of Portfolio Monies.....................................................................7
2.8 Liability for Payment in Advance of Receipt of Securities Purchased.............................9
2.9 Appointment of Agents...........................................................................9
2.10 Deposit of Portfolio Assets in Securities Systems..............................................10
2.11 Portfolio Assets Held in the Custodian's Direct Paper System...................................11
2.12 Segregated Account.............................................................................12
2.13 Ownership Certificates for Tax Purposes........................................................12
2.14 Proxies........................................................................................12
2.15 Communications Relating to Portfolio Securities................................................13
3. Duties of the Custodian with Respect to Property of the Portfolios Held Outside of the United States....13
3.1 Appointment of Foreign Sub-Custodians..........................................................13
3.2 Assets to be Held..............................................................................13
3.3 Foreign Securities Systems.....................................................................14
3.4 Holding Assets.................................................................................14
3.5 Agreements with Foreign Banking Institutions...................................................14
3.6 Access of Independent Accountants of the Portfolio(s)..........................................15
3.7 Reports by Custodian...........................................................................15
3.8 Transactions in Foreign Custody Account........................................................16
3.9 Liability of Foreign Sub-Custodians............................................................16
3.10 Reimbursement for Advances.....................................................................16
3.11 Foreign Custody Manager........................................................................17
3.12 Tax Law........................................................................................17
4. Payments for Redemptions or Withdrawals of Interests....................................................18
5. Proper Instructions.....................................................................................18
6. Actions Permitted without Express Authority.............................................................19
7. Evidence of Authority...................................................................................19
8. Duties of Custodian with Respect to the Books of Account................................................19
9. Records.................................................................................................19
10. Opinion of Fund's Independent Accountants...............................................................20
11. Reports to Fund by Independent Accountants..............................................................20
12. Compensation of Custodian...............................................................................20
13. Responsibility of Custodian.............................................................................21
14. Effective Period, Termination and Amendment.............................................................23
15. Successor Custodian.....................................................................................24
16. Additional Portfolios...................................................................................25
17. Prior Agreements........................................................................................25
18. Investor Communications Election........................................................................25
19. Limitation of Liability.................................................................................26
20. Confidentiality.........................................................................................26
21. Year 2000...............................................................................................27
22. Miscellaneous...........................................................................................28
SCHEDULE A (NAME OF FUND/PORTFOLIOS)............................................................................A-1
SCHEDULE B (FOREIGN SUB-CUSTODIANS).............................................................................B-1
SCHEDULE C (FUND ACCOUNTING ARRANGEMENTS).......................................................................C-1
SCHEDULE D (FOREIGN CUSTODY MANAGER)............................................................................D-1
SCHEDULE E (CASH MANAGEMENT PROVISIONS).........................................................................E-1
CUSTODIAN AND FUND ACCOUNTING AGREEMENT
This Agreement between the registered investment company named on
Schedule A hereto (the "Fund") and The Bank of New York, having its principal
place of business at Xxx Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Custodian"
and with the Fund and the Custodian being referred to individually as a "Party"
and collectively as the "Parties").
WITNESSETH:
WHEREAS, the Fund desires to retain the Custodian to render custody and
fund accounting services to the subtrusts or series of the Fund named on
Schedule A hereto (such subtrusts or series together with all other subtrusts or
series subsequently established by the Fund and made subject to this Agreement
in accordance with Article 16 being herein referred to as the "Portfolio(s)" and
where no Portfolios are enumerated on Schedule A the term "Portfolio" shall
refer to the Fund); and
WHEREAS, each Portfolio's assets are composed of money and property
contributed thereto by the holders ("Investors") of interests (whether in the
form of beneficial interests, shares or any other evidence of ownership) in the
Portfolio ("Interest(s)");
NOW THEREFORE, in consideration of the mutual covenants and agreements
hereinafter contained, the Parties agree as follows:
1. Employment of Custodian and Property to be Held by It
The Fund hereby employs the Custodian as the custodian of the assets of each
Portfolio, including , securities, other instruments, including, without
limitation, options, futures contracts, options on futures contracts and swaps,
and, as the context requires, currencies which the Portfolio desires to be held
in places within the United States (collectively, "domestic securities") and
securities, other instruments, including options, futures contracts, options on
futures contracts and swaps, and, as the context requires, currencies it desires
to be held outside the United States (collectively, "foreign securities" and,
together with domestic securities, "securities") pursuant to the provisions of
the Fund's organizational documents. The Fund agrees to deliver to the Custodian
all securities and cash of each Portfolio, 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 Interests as may be issued or sold from time to time.
The Custodian shall not be responsible, as custodian, for any property of a
Portfolio held or received by the Portfolio and not delivered to the Custodian.
Upon receipt of "Proper Instructions" (within the meaning of Article 5),
the Custodian shall on behalf of the applicable Portfolio(s) from time to time
employ one or more sub-custodians, located in the United States, but only in
accordance with an applicable vote by the Fund's Board. The Custodian may employ
as sub-custodian for the Portfolio's foreign securities foreign banking
institutions and foreign securities depositories designated in Schedule B hereto
but only in accordance with the provisions of Article 3. 2. Duties of the
Custodian with Respect to Property of the Portfolios Held By the Custodian in
the United States 2.1 Holding Securities The Custodian shall hold and physically
segregate for the account of each
Portfolio all non-cash property to be held by it in the United
States, including all domestic securities owned by such
Portfolio, other than (a) securities which are maintained
pursuant to Section 2.10 in a clearing agency which acts as a
securities depository or in a book-entry system contemplated
by Rule 17f-4(b)(1) or (2) under the Investment Company Act of
1940, as amended (the "1940 Act") (each, a "U.S. Securities
System"), (b) commercial paper of an issuer for which the
Custodian acts as issuing and paying agent ("Direct Paper")
which is deposited and/or maintained in the Direct Paper
System of the Custodian pursuant to Section 2.11, (c) whole
mortgages of which the Fund is the mortgagor that are serviced
by a servicer that is not an "affiliate" (as such term is
defined in the 1940 Act), of the Fund, and (d) such other
property as the Fund identifies by Proper Instructions.
2.2 Deliveries of Securities. The Custodian shall release and
deliver domestic securities owned by each Portfolio held by
the Custodian or in a U.S. Securities System account of the
Custodian or in the Custodian's Direct Paper book entry system
account ("Direct Paper System Account") only upon receipt of
Proper Instructions from the Fund with respect to the
Portfolio, which may be standing instructions (other than in
the case of Sections 2.2(4), 2.2(5), and 2.2(9)) when deemed
appropriate by the Parties, and only in the following cases:
(1) Upon sale of such securities for the account of the
Portfolio and receipt of payment
therefor;
(2) Upon the receipt of payment in connection with any
repurchase agreement related to such securities
entered into by the Portfolio;
(3) In the case of a sale effected through a U.S.
Securities System, in accordance with the provisions
of Section 2.10 hereof;
(4) To the depository agent in connection with tender or
other similar offers for securities of the Portfolio;
(5) To the issuer thereof or its agent when such
securities are called, redeemed, retired or otherwise
become payable; provided that, in any such case, the
cash or other consideration is to be delivered to the
Custodian;
(6) To the issuer thereof, or its agent, for transfer
into the name of any nominee or nominees of the
Custodian or into the name or nominee name of any
sub-custodian appointed pursuant to Article 1; or for
exchange for a different number of bonds,
certificates or other evidence representing the same
aggregate face amount or number of units and in the
same registered form (e.g., with respect to
restrictions); provided that, in any such case, the
new securities are to be delivered to the Custodian;
(7) Upon the sale of such securities for the account of
the Portfolio, to the broker or dealer or its
clearing agent, against a receipt, for examination in
accordance with "street delivery" custom; provided
that in any such case, the Custodian shall have no
responsibility or liability for any loss arising from
the delivery of such securities prior to receiving
payment for such securities except as may arise from
the Custodian's own negligence or willful misconduct;
(8) For exchange or conversion pursuant to any plan of
merger, consolidation, recapitalization,
reorganization or readjustment of the securities of
the issuers 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, upon the surrender thereof in the
exercise of such warrants, rights or similar
securities or the surrender of interim receipts or
temporary securities for definitive securities;
provided that, in any such case, the new securities
and cash, if any, are to be delivered to the
Custodian;
(10) For delivery in connection with any loans of
securities made by the Portfolio, but only in
accordance with the terms of a securities lending
agreement to which the Fund is a party;
(11) For delivery as security in connection with any
borrowings by the Fund on behalf of the Portfolio
requiring a pledge of assets by the Portfolio, but
only against receipt of amounts borrowed;
(12) For delivery in accordance with the provisions of any
agreement relating to the Portfolio among the Fund,
the Custodian and a broker-dealer registered under
the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and a member of The National
Association of Securities Dealers, Inc. ("NASD"),
relating to compliance with (a) the rules of The
Options Clearing Corporation and of any registered
national securities exchange, or of any similar
organization or organizations or (b) the rules or
positions of the Securities and Exchange Commission
or its staff, in each case regarding escrow or other
arrangements in connection with transactions by the
Portfolio;
(13) For delivery in accordance with the provisions of any
agreement relating to the Portfolio between the Fund
and a futures commission merchant registered under
the Commodity Exchange Act, relating to compliance
with the rules of the Commodity Futures Trading
Commission and/or any contract market, or any similar
organization or organizations, and Rule 17f-6 of the
1940 Act, regarding account deposits in connection
with transactions in futures contracts and options on
such contracts by the Portfolio;
(14) Upon receipt of instructions from the transfer agent
("Transfer Agent") for the Portfolio, for delivery to
such Transfer Agent or to the Investors in connection
with distributions in kind, as may be described from
time to time in the Fund's currently effective
registration statement on Form N-1A (which, as
applicable, shall include the Fund's current
prospectus and statement of additional
information)(the "Registration Statement") under the
1940 Act, in satisfaction of requests by Investors
for redemption or withdrawal, as the case may be; and
(15) For any other proper corporate purpose, but only upon
receipt of, in addition to Proper Instructions from
the Fund, a certified copy of a resolution of the
Fund's Board or a subcommittee of the Board signed by
an officer of the Fund and certified by the Secretary
or an Assistant Secretary.
In the circumstances described in Sections 2.2(4), 2.2(5) and 2.2(9),
if the Fund shall have given the Custodian standing instructions to do
so, the Custodian also shall release and deliver domestic securities
following the Custodian's receipt of notice from the issuer of the
securities or a Securities System of one or more of the events
described in such Section. For purposes of Section 2.2(5), the
Custodian shall be deemed to have received notice (and thus to have
received actual knowledge for purposes of this Agreement) from the
issuer of the Securities upon publication of notice of the events
described in such Section in a publication identified in Exhibit 1.
Such Exhibit may be revised from time to time by notice from the Fund
to the Custodian requesting the addition of a publication and such
Exhibit shall be deemed amended if the Custodian does not object (which
objection shall be made only if the request places an unreasonable
burden on the Custodian after taking into account increased charges) to
the request at a meeting of representatives of the parties to be held
within ten days of its being made. Unless the parties agree otherwise,
such Exhibit shall not be amended unless such meeting shall have taken
place. The Custodian shall not be deemed to have received notice of any
such event based solely on the receipt of notice by a Securities System
or foreign sub-custodian. The Custodian agrees to furnish promptly to
the Fund copies of notices it receives.
2.3 Registration of Securities. Domestic securities held by the Custodian
(other than bearer securities) shall be registered in the name of a
nominee of the Custodian or in the name or nominee name of any
sub-custodian appointed pursuant to Article 1. All securities received
by the Custodian under the terms of this Agreement shall be in "street
name" or other good delivery form. If, however, the Fund directs the
Custodian to maintain securities in "street name", the Custodian shall
use commercially reasonable best efforts only to timely collect income
due the Portfolio on such securities and to notify the Fund on a
commercially reasonable best efforts basis only of relevant corporate
actions, including, without limitation, pendency of calls, maturities,
tender offers or exchange offers; provided, however, if, in respect of
one or more securities, it is not customary in the relevant market to
hold securities in "street name" and the Fund nonetheless directs the
Custodian to do so, the Custodian, as to such security or securities,
shall have no such obligation to collect income or to give the
Portfolio any such notice of any corporate actions relating to such
securities.
2.4 Bank Accounts. The Custodian shall open and maintain a separate bank
account or accounts in the United States in the name of the Portfolio,
subject only to draft or order by the Custodian acting pursuant to the
terms of this Agreement, and shall hold in such account or accounts,
subject to the provisions hereof, all cash received by it from or for
the account of the Portfolio, other than cash maintained by the
Portfolio in a bank account established and used in accordance with
Rule 17f-3 under the 1940 Act. Funds held by the Custodian for a
Portfolio in accordance with said Rule 17f-3 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 trust
company shall be qualified to act as a custodian under the 1940 Act and
that each such bank or trust company shall be approved by vote of a
majority of the Fund's Board. Such funds shall be deposited by the
Custodian in its capacity as Custodian and shall be withdrawable by the
Custodian only in that capacity.
2.5 Availability of Federal Funds. Upon mutual agreement between the Fund
and the Custodian, the Custodian shall, upon the receipt of Proper
Instructions from the Fund on behalf of a Portfolio, (i) invest in such
money market funds offered by the Custodian as institutional sweep
vehicles as may be set forth in such Proper Instructions, on the same
day as received, all federal funds received after a time agreed upon by
the Custodian and the Fund and (ii) make federal funds available to the
Fund for the Portfolio as of specified times agreed upon from time to
time by the Fund and the Custodian in the amount of checks received in
payment for Interests in such Portfolio(s) which are deposited into the
account of the Portfolio.
2.6 Collection of Income. Subject to the provisions of Section 2.3, the
Custodian shall collect on a timely basis all income and other payments
with respect to registered domestic securities held hereunder to which
a Portfolio shall be entitled either by law or pursuant to custom in
the securities business, and shall collect on a timely basis all income
and other payments with respect to bearer domestic securities if, on
the date of payment by the issuer, such securities are held by the
Custodian or its agent thereof and shall credit such income, as
collected, to such Portfolio'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. Except as otherwise may be provided in any
securities lending agreement to which the Fund and the Custodian are
party, (i) income due the Portfolio on securities loaned pursuant to
the provisions of Section 2.2 (10) shall be the responsibility of the
Fund and (ii) the Custodian will have no duty or responsibility in
connection therewith, other than to provide the Fund with such
information or data as may be necessary to assist the Fund in arranging
for the timely delivery to the Custodian of the income to which each
Portfolio is properly entitled.
2.7 Payment of Portfolio Monies. Upon receipt of Proper Instructions from
the Fund on behalf of the applicable Portfolio, which may be standing
instructions when deemed appropriate by the Parties, the Custodian
shall pay out monies of a Portfolio in the following cases only: (1) In
connection with transactions involving securities for the account of
the Portfolio, but only
(a) against the delivery of such securities or evidence of
title, if any, to options, futures contracts, options on
futures contracts, swaps or other instruments to the Custodian
(or any bank, banking firm or trust company doing business in
the United States or abroad which is qualified under the 1940
Act to act as a custodian and has been designated by the
Custodian as its agent for this purpose) registered in the
name of a nominee of the Custodian referred to in Section 2.3
hereof or in proper form for transfer; (b) in the case of a
purchase effected through a U.S. Securities System, in
accordance with the conditions set forth in Section 2.10
hereof; (c) in the case of a purchase involving the Direct
Paper System, in accordance with the conditions set forth in
Section 2.11; (d) in the case of repurchase agreements entered
into on behalf of the Portfolio between the Fund and the
Custodian, or another bank, or a broker-dealer which is a
member of NASD, (i) against delivery of the securities either
in certificate form or through an entry crediting the
Custodian's account at the Federal Reserve Bank with such
securities, (ii) against delivery of the receipt evidencing
purchase by the Portfolio of securities owned by the Custodian
along with written evidence of the agreement by the Custodian
to repurchase such securities from the Portfolio or (iii)
against such delivery as is customarily used for third-party
repurchase agreements, (e) for transfer to a time deposit
account of the Custodian, as custodian for the Portfolio, in
any bank, whether domestic or foreign; such transfer may be
effected prior to receipt of a confirmation from a broker
and/or the applicable bank pursuant to Proper Instructions
from the Fund as defined in Article 5, or (f) in the case of
futures contracts, in accordance with the agreement between
the Fund and a futures commission merchant registered under
the Commodity Exchange Act, relating to compliance with the
rules of the Commodity Futures Trading Commission and/or any
contract market, or any similar organization or organizations,
and Rule 17f-6 of the 1940 Act, regarding account deposits in
connection with transactions in futures contracts and options
on such contracts by the Portfolio;
(2) In connection with conversion, exchange or surrender of
securities owned by the Portfolio as set forth in Section 2.2
hereof;
(3) In connection with the deposit of margin in connection with a short
sale of securities; (4) For the redemption or withdrawal of the
Portfolio's Interests as set forth in Article 4 hereof; (5) For the
payment of any expense or liability incurred by the Portfolio,
including but not
limited to the following payments for the account of the
Portfolio: interest, taxes, management, accounting, transfer
agent and legal fees, and operating expenses of the Portfolio
whether or not such expenses are to be in whole or part
capitalized or treated as deferred expenses;
(6) For the payment of any distributions pursuant to the governing
documents of the Fund; (7) For payment of the amount of dividends
received in respect of securities sold short; and (8) For any other
proper purpose, but only upon receipt of, in addition to Proper
Instructions from
the Fund, a certified copy of a resolution of the Fund's Board
or a subcommittee of the Board signed by an officer of the
Fund and certified by its Secretary or an Assistant Secretary.
Notwithstanding any provision elsewhere contained herein, the Custodian
shall not be required to obtain possession of any instrument or
certificate representing any futures contract, and option, or any
futures contract option until after it shall have determined, or shall
have received Proper Instructions from the Fund stating, that any such
instruments or certificates are available. The Fund, if practicable,
shall deliver to the Custodian Proper Instructions to such effect no
later than the business day preceding the availability of any such
instrument or certificate. Before such availability, the Custodian
shall make payments or deliveries specified in Proper Instructions
received by the Custodian in connection with any such purchase, sale,
writing, settlement or closing-out of any futures contract, option or
futures contract option upon its receipt of the Proper Instructions.
2.8 Liability for Payment in Advance of Receipt of Securities Purchased.
Except as specifically stated otherwise in this Agreement, in any and
every case where payment for purchases of domestic securities for the
account of a Portfolio is made by the Custodian in advance of receipt
of the securities purchased in the absence of specific written
instructions from the Fund with respect to the Portfolio to pay in
advance, the Custodian shall be absolutely liable to the Portfolio for
any and all Losses (as defined hereinafter) resulting therefrom.
Notwithstanding the foregoing, settlement and payment for securities
received for the account of the Portfolio and delivery of securities
maintained for the account of the Portfolio may be effected in
accordance with the best customary established securities trading or
securities processing practices and procedures in the market in which
the transaction occurs, including delivering securities to the
purchaser thereof or to a dealer therefor (or an agent for such
purchaser or dealer) against a receipt with the expectation of
receiving later payment for such securities from such purchaser or
dealer.
2.9 Appointment of Agents. Except as otherwise may be provided herein, the
Custodian may not appoint any other entity to act as its agent to carry
out the provisions of this Article 2. The appointment of an agent shall
not relieve the Custodian of its responsibilities or liabilities
hereunder and the Custodian shall be liable for the acts or omissions
of any agent to the same extent as if the Custodian had acted or
omitted to act.
2.10 Deposit of Portfolio Assets in Securities Systems. The Custodian may
deposit and/or maintain securities owned by a Portfolio in a U.S.
Securities System in accordance with 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 Portfolio in a U.S. Securities System provided that
such securities are represented in an account ("Account") of
the Custodian in the U.S. 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
Portfolio which are maintained in a U.S. Securities System
shall identify by book-entry those securities belonging to the
Portfolio;
(3) The Custodian shall pay for securities purchased for the
account of the Portfolio upon (i) receipt of advice from the
U.S. Securities System that such securities have been
transferred to the 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 Portfolio. The Custodian shall
transfer securities sold for the account of the Portfolio upon
(i) receipt of advice from the U.S. Securities System that
payment for such securities has been transferred to the
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 Portfolio. Copies of all advices from the U.S.
Securities System of transfers of securities for the account
of the Portfolio shall identify the Portfolio, be maintained
for the Portfolio by the Custodian and be provided to the Fund
at the Fund's request. Upon request, the Custodian shall
furnish the Fund on behalf of the Portfolio confirmation of
each transfer to or from the account of the Portfolio in the
form of a written advice or notice and shall furnish to the
Fund on behalf of the Portfolio copies of daily transaction
sheets reflecting each day's transactions in the U.S.
Securities System for the account of the Portfolio on the next
business day;
(4) The Custodian shall provide the Fund with any report obtained
by the Custodian on the U.S. Securities System's accounting
system, internal accounting controls and procedures for
safeguarding securities deposited in the U.S. Securities
System; and
(5) The Custodian shall have received from the Fund the initial
certificate required by Article 14 hereof.
2.11 Portfolio Assets Held in the Custodian's Direct Paper System. The
Custodian may deposit and/or maintain securities owned by a Portfolio
in the Direct Paper System of the Custodian subject to the following
provisions: (1) No transaction relating to securities in the Direct
Paper System will be effected in the
absence of Proper Instructions from the Portfolio;
(2) The Custodian may keep securities of the Portfolio in the
Direct Paper System only if such securities are represented in
an Account of the Custodian in the Direct Paper System which
shall not include any assets of the Custodian other than
assets held as a fiduciary, custodian or otherwise for
customers;
(3) The records of the Custodian with respect to securities of the
Portfolio which are maintained in the Direct Paper System
shall identify by book-entry those securities belonging to the
Portfolio;
(4) The Custodian shall pay for securities purchased for the
account of the Portfolio upon the making of an entry on the
records of the Custodian to reflect such payment and transfer
of securities to the account of the Portfolio. The Custodian
shall transfer securities sold for the account of the
Portfolio upon the making of an entry on the records of the
Custodian to reflect such transfer and receipt of payment for
the account of the Portfolio;
(5) The Custodian shall furnish the Fund confirmation of each
transfer to or from the account of each Portfolio, in the form
of a written advice or notice, of Direct Paper on the next
business day following such transfer and shall furnish to the
Fund copies of daily transaction sheets reflecting each day's
transaction in the U.S. Securities System for the account of
the Portfolio; and
(6) The Custodian shall provide the Fund on behalf of the
Portfolio with any report on its system of internal accounting
control as the Fund may reasonably request from time to time.
2.12 Segregated Account. The Custodian shall upon receipt of Proper
Instructions from the Fund establish and maintain a segregated account
or accounts for and on behalf of each Portfolio, into which account or
accounts may be transferred cash and/or securities, including
securities maintained in an account by the Custodian pursuant to
Section 2.10 or 2.11 hereof, (i) in accordance with the provisions of
any agreement relating to the Portfolio among the Fund, the Custodian
and a broker-dealer registered under the Exchange Act and a member of
the NASD (or any futures commission merchant registered under the
Commodity Exchange Act), relating to compliance with the rules of The
Options Clearing Corporation and of any registered national securities
exchange (or the Commodity Futures Trading Commission or any registered
contract market), or of any similar organization or organizations,
regarding escrow or other arrangements in connection with transactions
by the Portfolio, (ii) for purposes of segregating cash or government
securities in connection with options purchased, sold or written by the
Portfolio or commodity futures contracts or options thereon purchased
or sold by the Portfolio, (iii) for the purposes of compliance by the
Fund and/or the Portfolio with the procedures required by Investment
Company Act Release No. 10666, or any subsequent release or releases of
the Securities and Exchange Commission relating to the maintenance of
segregated accounts by registered investment companies and (iv) for
other proper purposes, but only, in the case of clause (iv), upon
receipt of, in addition to Proper Instructions from the Fund, a
certified copy of a resolution of the Fund's Board or a subcommittee of
the Board signed by an officer of the Fund and certified by the
Secretary or an Assistant Secretary.
2.13 Ownership Certificates for Tax Purposes. The Custodian shall execute
ownership and other certificates and affidavits for all federal and
state tax purposes in connection with receipt of income or other
payments with respect to domestic securities of the Portfolio(s) held
by it and in connection with transfers of securities.
2.14 Proxies. The Custodian shall, with respect to the domestic securities
held hereunder, cause to be promptly executed by the registered holder
of such securities, if the securities are registered otherwise than in
the names of the Portfolio(s) or a nominee of the Portfolio(s), all
proxies it receives, without indication of the manner in which such
proxies are to be voted, and shall promptly deliver to the Fund such
proxies, all proxy soliciting materials and all notices relating to
such securities.
2.15 Communications Relating to Portfolio Securities. The Custodian shall
transmit promptly to the Fund all information (including, without
limitation, pendency of calls and maturities of domestic securities and
expirations of rights in connection therewith and notices of exercise
of call and put options written by the Portfolio and the maturity of
futures contracts purchased or sold by the Portfolio) received by the
Custodian from issuers of the securities being held for the Portfolio.
With respect to tender or exchange offers or any other similar
transaction, the Custodian shall transmit promptly to the Fund all
information received by the Custodian from issuers of the securities
whose tender or exchange or other transaction is sought and from the
party (or its agents) making the tender or exchange offer or engaging
in the other similar transaction. If the Portfolio desires to take
action with respect to any tender offer, exchange offer or any other
similar transaction, the Fund shall give the Custodian such written
notice as the parties from time may agree before the time by which the
Custodian is to take such action.
3. Duties of the Custodian with Respect to Property of the Portfolios Held
3.1 Outside of the United States Appointment of Foreign Sub-Custodians.
The Fund hereby authorizes and instructs the Custodian to employ as
sub-custodians for each Portfolio's securities and other assets
maintained outside the United States the foreign banking institutions,
foreign branches of U.S. banks and foreign securities depositories
designated on Schedule B hereto ("foreign sub-custodians"), as Schedule
B may be amended from time to time by the Custodian, provided no such
amendment shall be effective until the Fund shall have actually
received the amended Schedule B. The Custodian agrees to use its best
efforts to provide the Fund at least three days' prior notice of any
change to Schedule B. Upon receipt of Proper Instructions, the Fund may
instruct the Custodian to cease the employment of any one or more such
sub-custodians for maintaining custody of a Portfolio's assets. If the
Custodian has not been appointed as the Foreign Custody Manager (as
defined in Rule 17f-5 under the 0000 Xxx) in respect of a particular
foreign sub-custodian, the delivery of Proper Instructions by the Fund
to the Custodian directing it to hold Portfolio assets with such
foreign sub-custodian shall constitute a representation and warranty by
the Fund that its Board or a Foreign Custody Manager has determined
that the use of such foreign sub-custodian is not a violation of the
1940 Act and Rule 17f-5 thereunder.
3.2 Assets to be Held.
The Custodian shall limit the securities and other assets maintained in
the custody of the foreign sub-custodians to those permitted by Rule
17f-5(c) under the 1940 Act; provided that the Custodian shall not be
responsible for determining whether the amount of cash held in the
custody of a foreign sub-custodian in a particular jurisdiction exceeds
what would be reasonably necessary to effect the Portfolio's
transactions in such jurisdiction. The Custodian shall identify on its
books as belonging to the Portfolio, the foreign securities of the
Portfolio held by each foreign sub-custodian.
3.3 Foreign Securities Systems. Except as may otherwise be agreed upon in
writing by the Custodian and the Fund, assets of a Portfolio shall be
maintained in a clearing agency which acts as a securities depository
or in a book-entry system for the central handling of securities
located outside the United States (each, a "Foreign Securities System")
only through arrangements implemented by the foreign banking
institutions serving as sub-custodians pursuant to the terms hereof or
through Foreign Securities Systems in which the Custodian is a direct
participant (Foreign Securities Systems, together with U.S. Securities
Systems, are collectively referred to herein as the "Securities
Systems"). Where possible, such arrangements shall include entry into
agreements containing the provisions set forth in Section 3.5 hereof.
3.4 Holding Assets. The Custodian may hold securities and other non-cash
property for all of its customers, including the Fund, with a foreign
sub-custodian in a single account that is identified as belonging to
the Custodian for the benefit of its customers, provided, however, that
(i) the records of the Custodian with respect to securities and other
non-cash property of a Portfolio which are maintained in such account
shall identify by book-entry those securities and other non-cash
property belonging to the Portfolio and (ii) the Custodian shall
require that securities and other non-cash property so held by the
foreign sub-custodian be held separately from any assets of the foreign
sub-custodian or of others who are not customers of the Custodian. The
Custodian shall hold foreign currency and other cash property for a
Portfolio with foreign sub-custodians in an account in the name of the
Custodian, for the benefit of its customers, which account shall be
interest bearing in jurisdictions in which the Custodian, in accordance
with its customary practices, holds the cash of customers that are
investment companies in interest-bearing accounts.
3.5 Agreements with Foreign Banking Institutions. Each agreement with a
foreign banking institution shall be substantially in the forms set
forth in Exhibit 1 hereto and shall provide, in substance, for
indemnification or insurance arrangements (or any combination of the
foregoing) such that each Portfolio will be adequately protected
against the risk of loss of assets held in accordance with such
agreement and that: (a) the assets of each Portfolio will not be
subject to any right, charge, security interest, lien or claim of any
kind in favor of the foreign banking institution or its creditors or
agents, except a claim of payment for their safe custody or
administration or, in the case of cash deposits, liens or rights in
favor of creditors of the foreign banking institution arising under
bankruptcy, insolvency or similar laws; (b) beneficial ownership for
the assets of each Portfolio will be freely transferable without the
payment of money or value other than for custody or administration; (c)
adequate records will be maintained identifying the assets as belonging
to each Portfolio or being held by the Custodian for the benefit of its
customers; (d) officers of or auditors employed by, or other
representatives of the Custodian, including to the extent permitted
under applicable law the independent accountants for each Portfolio,
will be given access to the books and records of the foreign banking
institution relating to its actions under its agreement with the
Custodian or confirmation of the contents of such records; (e) assets
of each Portfolio held by the foreign sub-custodian will be subject
only to the instructions of the Custodian or its agents; and (f) the
Fund will receive periodic reports with respect to the safekeeping of
each Portfolio's assets, including notification of any transfer to or
from a Portfolio's account or a third party account containing assets
held for the benefit of the Portfolio.
3.6 Access of Independent Accountants of the Portfolio(s). Upon request of
the Fund, the Custodian will use its best efforts to arrange for the
independent accountants of the Portfolio(s) to be afforded access to
the books and records of any foreign banking institution employed as a
foreign sub-custodian insofar as such books and records relate to the
performance of such foreign banking institution under its agreement
with the Custodian.
3.7 Reports by Custodian. The Custodian will supply to the Fund from time
to time, as mutually agreed upon, statements in respect of the
securities and other assets of the Portfolio(s) held by foreign
sub-custodians, including an identification of entities having
possession of the Portfolio(s) securities and other assets and advices
or notifications of any transfers of securities to or from each
custodial account maintained by a foreign banking institution for the
Custodian on behalf of the Portfolio indicating, as to securities
acquired for the Portfolio, the identity of the entity having physical
possession of such securities.
3.8 Transactions in Foreign Custody Account.
(a) Except as otherwise provided in paragraph (b) of this
Section 3.8, the provision of Sections 2.2 and 2.7 of this Agreement
shall apply, mutatis mutandis, to the foreign securities of the
Portfolio(s) held outside the United States by foreign sub-custodians.
(b) Notwithstanding any provision of this Agreement to the
contrary, settlement and payment for securities received for the
account of the Portfolio and delivery of securities maintained for the
account of the Portfolio may be effected in accordance with the best
customary established securities trading or securities processing
practices and procedures in the jurisdiction or market in which the
transaction occurs, including delivering securities to the purchaser
thereof or to a dealer therefor (or an agent for such purchaser or
dealer) against a receipt with the expectation of receiving later
payment for such securities from such purchaser or dealer.
(c) Securities maintained in the custody of a foreign
sub-custodian may be maintained in the name of such entity's nominee to
the same extent as set forth in Section 2.3 of this Agreement.
3.9 Liability of Foreign Sub-Custodians. Each agreement pursuant to which
the Custodian employs a foreign banking institution as a foreign
sub-custodian shall require the institution to exercise at least
reasonable care in the performance of its duties and to indemnify and
hold harmless the Custodian and the Fund and/or the Portfolio(s) from
and against any loss, damage, cost, expense, liability or claim arising
out of or in connection with the institution's performance of such
obligations. At the election of the Fund and to the extent permitted by
the Custodian's agreement with the foreign banking institution, it
shall be entitled to be subrogated to the rights of the Custodian with
respect to any claims against a foreign banking institution as a
consequence of any such loss, damage, cost, expense, liability or claim
if and to the extent that the Fund and/or the Portfolio(s) have not
been made whole for any such loss, damage, cost, expense, liability or
claim.
3.10 Reimbursement for Advances. If the Custodian, in its discretion,
advances cash on behalf of a Portfolio in connection with transactions
in securities and foreign currency and in connection with advances or
overdrafts arising out of the cash management services provided for in
Schedule E, any property at any time held for the account of the
applicable Portfolio shall be security therefor (and the Custodian
shall have a continuing lien and security interest therein to the
extent the Custodian shall have possession or control thereof) and,
should the Portfolio fail to repay the Custodian promptly, the
Custodian shall be entitled to utilize available cash and to dispose of
the Portfolio's assets to the extent necessary to obtain reimbursement.
Any such advances shall bear interest at such rate as the Fund and the
Custodian shall agree in writing from time to time.
3.11 Foreign Custody Manager. The Custodian shall serve as Foreign Custody
Manager as provided in Schedule D
hereto.
3.12 Tax Law.
(a) United States Taxes.
The Custodian shall have no responsibility or liability for any
obligations now or hereafter imposed on the Portfolio or the Custodian
as custodian of the Portfolio by the tax law of the United States of
America or any state or political subdivision thereof, except to the
extent such obligations have been imposed as a result of the
Custodian's breach of this Agreement or as a result of its negligence
or willful misconduct. The Custodian will be responsible for informing
the Fund of the income received by the Portfolio which is United States
source income and which is not United States source income and of such
other tax characteristics of such income as the Fund may request from
time to time. (b) Claiming for Exemption or Refund under the Tax Laws
of Non-United States Jurisdictions. The sole responsibility of the
Custodian with regard to the tax laws of non-United States
jurisdictions shall be to identify the income of each Portfolio which
has been subject to withholding and other tax assessments or other
governmental charges by such jurisdictions and the amount thereof and
as to the allocated amount of such income that is attributable to each
Portfolio's Investors, to use reasonable efforts to assist the
Portfolio or its Investors with respect to any claim for exemption or
refund of such charges that can be made on behalf of the Portfolio or
its Investors.
4. Payments for Redemptions or Withdrawals of Interests.
The Custodian shall receive and deposit into the account of each
Portfolio such payments as are received for Interests in the Portfolio issued or
sold from time to time by the Portfolio. The Custodian will provide notification
to the Fund, and, if requested by the Fund, to any Transfer Agent, of any
receipt by it of payments for Interests.
From such funds as may be available for the purpose but subject to the
limitations of the Fund's organizational documents and any applicable votes of
the Fund's Board pursuant thereto, the Custodian shall, upon receipt of
instructions from the Fund, make funds available to an account for each
Portfolio for payment to Investors in the Portfolio who have delivered to the
Fund and/or Portfolio a request for redemption or withdrawal of their Interests.
5. Proper Instructions.
Proper Instructions as used throughout this Agreement means a writing
signed or initialed by one or more person or persons the Custodian reasonably
believes have been authorized to do so by the Fund's Board from time to time.
Each such writing shall set forth the specific transaction or type of
transaction involved, including a specific statement of the purpose for which
such action is requested. Oral instructions will be considered Proper
Instructions if 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.
It is understood and agreed that the Fund's Board has authorized X.X. Xxxxxx
Investment Management Inc. ("Xxxxxx"), as investment adviser of the Portfolios,
to deliver Proper Instructions with respect to all matters for which Proper
Instructions are required by Sections 2.2(1) through 2.2(14), 2.5, 2.7(1)
through 2.7(3), 2.7(7), 2.12(i) through 2.12(iii) and 3.8(a). The Custodian may
rely upon the certificate of an officer of Xxxxxx with respect to the person or
persons authorized on behalf of Xxxxxx to sign, initial or give Proper
Instructions for the purposes of such paragraphs. Proper Instructions also may
include communications effected directly between such electro-mechanical or
electronic devices as the Fund and the Custodian may agree to use. For purposes
of this Section, Proper Instructions shall include instructions received by the
Custodian pursuant to any three party agreement which requires a segregated
asset account in accordance with Section 2.12.
6. 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 Agreement, 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 and/or a
Portfolio, checks, drafts and other negotiable instruments;
and
(4) in general, attend to all non-discretionary details in
connection with the sale, exchange, substitution, purchase,
transfer and other dealings with the securities and property
of the Portfolios except as otherwise directed by the Fund's
Board.
7. Evidence of Authority
The Custodian shall be protected in acting, in good faith and without
negligence, upon any instruction, notice, request, consent, certificate or other
instrument or paper reasonably believed by it to be genuine and to have been
properly executed by or on behalf of the Fund. The Custodian may receive and
accept a certified copy of a vote of the Fund's Board 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 Fund's Board pursuant to the Fund's
organizational documents 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. 8. Duties of Custodian with Respect to the Books of
Account.
The Custodian shall keep the books of account of the Fund, as fund
accounting agent, in accordance with such written procedures as shall be agreed
to from time to time by the Custodian and the Fund, including those set forth on
Schedule C hereto.
9. Records.
The Custodian shall create, maintain and retain, with respect to each
Portfolio, all records and information relating to the performance of custodial
services under this Agreement in a manner that complies with applicable law and
is at least as stringent and at least as protective to the Fund as the manner in
which the Custodian creates, maintains and retains records for customers
similarly situated to the Fund and, at a minimum, the Custodian shall (a)
create, maintain and retain an inventory, index and status of all records so as
to allow retrieval within a reasonable period of time and (b) create, maintain
and retain records in secure on-site or off-site locations which provide at a
minimum for secure storage protecting against unauthorized access and protecting
against fire, moisture and destruction. The Custodian shall also comply with its
own record maintenance and retention policies (including as they relate to
destruction of records) to the extent more stringent or more protective to the
Fund than the procedures in the immediately preceding sentence, and the
Custodian shall make its policies available to the Fund upon reasonable notice.
All records created and maintained hereunder shall be the Fund's property. The
Custodian shall, at the Fund's request, supply the Fund with a tabulation(s) of
securities owned by the Portfolio(s) and held by the Custodian and shall, when
requested to do so by the Fund, include certificate numbers in such tabulations.
10. Opinion of Fund's Independent Accountants. The Custodian shall take all
commercially reasonable actions, as the Fund or its independent accountants may
from time to time request, to assist the Fund in obtaining from year to year
favorable opinions for each Portfolio from the Fund's independent accountants
with respect to its activities hereunder in connection with the preparation of
the Registration Statement and the Fund's Form N-SAR or other periodic reports
to the Securities and Exchange Commission and with respect to any other
requirements of such Commission or any other regulatory body to which the Fund
may be subject. 11. 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 controls and procedures for safeguarding each
Portfolio's securities, futures contracts and options on futures contracts,
including securities deposited and/or maintained in a Securities System,
relating to the services provided by the Custodian under this Agreement; such
reports shall be of sufficient scope and in sufficient detail as may reasonably
be required by the Fund to provide reasonable assurance that any material
inadequacies would be disclosed by such examination, and, if there are no such
inadequacies, the reports shall so state. 12. Compensation of Custodian.
The Custodian shall be entitled to reasonable compensation for its
services and expenses as custodian and fund accounting agent, as agreed upon
from time to time between the Fund and the Custodian.
13. Responsibility of Custodian.
The Custodian shall indemnify the Fund against, and hold harmless the
Fund from, any Losses (as defined below) suffered, incurred or sustained by the
Fund or to which the Fund becomes subject, resulting from, arising out of or
relating to:
(a) the negligence (whether through action or inaction) or willful
misconduct of the Custodian under this Agreement, the negligence (whether
through action or inaction) or willful misconduct of any of the Custodian's
agents or the breach or negligence (whether through action or inaction) of any
sub-custodian under its sub-custodian agreement with the Custodian as determined
under the law governing such agreement;
(b) any assertion that the services that the Custodian is responsible
for providing hereunder or the intellectual property, including hardware,
software and trade secrets, employed by the Custodian in connection therewith
infringe upon the proprietary rights of any third party (except as may have been
caused by a direct instruction by the Fund or by Xxxxxx);
(c) any assertion by a third party arising from the Custodian's
negligence or willful misconduct in providing services;
(d) the material inaccuracy, untruthfulness or breach of any
representation or warranty made by the Custodian under this Agreement; and
(e) personal injury (including death) or property damage or loss
resulting from the Custodian's or its agents' acts or omissions.
In no event shall the Custodian be liable for (a) Country Risks (as
defined in Schedule D), (b) any sub-custodian selected by the Fund, (c) the
continued use by the Fund of any sub-custodian after the thirtieth day after the
Fund has been notified of the Custodian's intention to replace such
sub-custodian, (d) Losses due to fire, flood, earthquake, elements of nature or
acts of God, acts of war, terrorism, riots, civil disorders, rebellions or
revolutions, or any other similar cause beyond the reasonable control of the
Custodian or its agents, including failures, interruptions or malfunctions of
utilities not caused by the Custodian or its agents, but only to the extent such
Losses could not have been prevented by reasonable precautions and provided the
Custodian or its agents continue to use their commercially reasonable best
efforts to recommence performance whenever and to whatever extent possible
without delay, including through the use of alternate sources, workaround plans
or other means (the Custodian hereby agreeing to notify the Fund immediately of
the occurrence of any such event and describe in reasonable detail the nature of
such event), or (e) the insolvency of any sub-custodian, provided that the
Custodian has acted without negligence or bad faith in the selection or
retention of such sub-custodian.
Notwithstanding anything to the contrary contained herein, the
Custodian shall have no obligation hereunder for Losses which are sustained or
incurred by reason of any action or inaction by a Securities System, unless such
action or inaction is caused by the negligence or willful misconduct of the
Custodian or from the failure of the Custodian or any of its agents to enforce
against the Securities System effectively such rights as it may have. At the
Fund's election, 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 that the Custodian may have as a consequence of any such loss or damage
if and to the extent the Fund has not been made whole for any such loss or
damage: provided that the Custodian shall, notwithstanding such subrogation,
reimburse the Fund for its reasonable expenses in connection with such claim. In
no event shall either Party be liable to the other or any third party for
indirect, incidental, special or consequential damages arising out of or
relating to its performance or failure to perform under this Agreement.
Without limiting the generality of the foregoing, the Custodian shall
be under no obligation to inquire into, and shall not be liable for, the
validity of any securities purchased or sold by the Fund, the legality of their
purchase or sale, the propriety of the amount paid therefor upon purchase or
sale, or any actions of third parties with respect to the negotiability of
securities.
The Custodian may, with respect to questions of law specifically
regarding this Agreement, obtain the written advice of outside counsel
reasonably acceptable to the Fund, and shall be fully protected with respect to
anything done or omitted by it in good faith in conformity with such advice.
As soon as is commercially reasonable after receiving notice from the
Fund, the Custodian shall, and shall use reasonable efforts to cause its agents
to, provide the Fund with access to, and any assistance or information that it
may require with respect to, information related to the services provided under
this Agreement and the Custodian's control structure policies and procedures to
enable the Fund or any person it reasonably designates (a) to examine all
records and materials of the Custodian pertaining to such services, including an
examination of the operation of the Custodian's equipment, (b) to take extracts
from any record, redacted to remove references to matters other than those under
this Agreement, (c) to visit and inspect the Custodian's premises, (d) to
interview the Custodian's employees and agents regarding such services, (e) to
run computer programs and perform any other functions necessary for control
assessments and/or investigations, (f) to verify the integrity of any data
maintained by the Custodian under this Agreement, (g) to examine the systems
that process, store, support and transmit such data (provided that the Fund
shall not have rights described in this paragraph to the extent prohibited by
any binding third party (that is not an affiliate of the Custodian)
confidentiality agreements, license restrictions or limitations, or trade secret
obligations) and (h) to examine the Custodian's performance of such services
including, to the extent applicable to such services and to the charges
therefor, audits of practices and procedures, systems, applications development
and maintenance procedures and practices, general controls (e.g., organizational
controls, input/output controls, system modification controls, processing
controls, system design controls and access controls) and security practices and
procedures, disaster recovery and back-up procedures, as necessary to enable the
Fund to meet applicable regulatory requirements.
"Losses" shall mean any and all damages, fines, penalties,
deficiencies, losses, liabilities (including settlements, approved by the
Custodian, and judgments) and expenses (including interest, court costs,
reasonable fees and expenses of attorneys, accountants and other experts and
other reasonable fees of litigation and other proceedings and of any claim,
default or assessment).
The provisions of this Article 13 shall survive any termination of this
Agreement.
14. Effective Period, Termination and Amendment.
This Agreement shall become effective as of its execution, shall
continue in full force and effect until terminated as hereinafter provided and
may be amended at any time by mutual agreement of the Parties; provided,
however, that the Custodian shall not with respect to the Fund act under Section
2.10 hereof in the absence of receipt of an initial certificate of the Secretary
or an Assistant Secretary that the Fund's Board has approved the initial use by
each Portfolio of a particular Securities System, as required in each case by
Rule 17f-4 under the 1940 Act, and that the Custodian shall not with respect to
a Portfolio act under Section 2.11 hereof in the absence of receipt of an
initial certificate of the Secretary or an Assistant Secretary that the Fund's
Board has approved the initial use by each Portfolio of the Direct Paper System
by such Portfolio; provided further, however, that the Fund shall not amend or
terminate this Agreement in contravention of any applicable federal or state
regulations, or any provision of the Fund's organizational documents, and
further provided, that the Fund may at any time by action of its Board (i) with
respect to any Portfolio substitute another bank or trust company for the
Custodian by giving notice as described below to the Custodian, or (ii)
immediately terminate this Agreement 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.
The Custodian may terminate this Agreement only if it ceases to
provide, or to offer to provide, services substantially similar to those
provided herein to customers that are not affiliates of the Custodian, and then
only upon 180 days' prior written notice to the Fund. The Fund may terminate
this Agreement at any time upon at least 30 days' prior written notice to the
Custodian, except that no notice shall be necessary if the Fund terminates this
Agreement as a result of any act by the Custodian that could give rise to a
claim for indemnification under Article 13. Upon termination of this Agreement,
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. 15. Successor Custodian.
If a successor custodian for a Portfolio shall be appointed by the
Fund's Board, the Custodian shall, upon termination, deliver to such successor
custodian at the office of the Custodian, duly endorsed and in the form for
transfer, all securities and other instruments of such Portfolio then held by it
hereunder, shall transfer to an account of the successor custodian all of the
securities of the Portfolio held in a Securities System and otherwise shall use
its best efforts to assist the Fund in completing a timely transfer of its
responsibilities as custodian to the successor custodian.
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 Fund's Board,
deliver at the office of the Custodian and transfer 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 Fund's Board shall have been delivered to the
Custodian on or before the date when such termination shall become effective,
then the Custodian shall have the right to deliver to a bank or trust company,
which is a "bank" as defined in the 1940 Act, doing business in New York, New
York, of its own selection, having an aggregate capital, surplus, and undivided
profits, as shown by its last published report, of not less than $50,000,000,
all securities, funds and other properties held by the Custodian on behalf of a
Portfolio and all instruments held by the Custodian relative thereto and all
other property held by it under this Agreement on behalf of the Portfolio and to
transfer to an account of such successor custodian all of the securities of the
Portfolio held in any Securities System. Thereafter, such bank or trust company
shall be the successor of the Custodian under this Agreement.
In the event that securities, funds and other property remains in the
possession of the Custodian after the date of termination hereof owing to
failure of the Fund to procure the certified copy of the vote referred to or of
the Fund's Board 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 property and
the provisions of this Agreement relating to the duties and obligations of the
Custodian shall remain in full force and effect. 16. Additional Portfolios.
In the event that the Fund establishes one or more subtrusts or series,
with respect to which it desires to have the Custodian render services as
custodian under the terms hereof, it shall so notify the Custodian in writing,
and the Custodian shall provide such services under the terms hereof. 17. Prior
Agreements.
This Agreement supersedes and terminates, as of the date hereof, all
prior agreements between the Fund and the Custodian relating to the custody of
the assets of the Portfolio(s).
This Agreement and all schedules, exhibits, attachments and amendments
hereto may be reproduced by any photographic, photostatic, microfilm, microcard,
miniature photographic or other similar process. The Parties hereto each agree
that any such reproduction shall be admissible in evidence as the original
itself in any judicial or administrative proceeding, whether or not the original
is in existence and whether or not such reproduction was made by a Party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
18. Investor Communications Election.
Securities and Exchange Commission Rule 14b-2 requires banks which hold
securities for the account of customers to respond to requests by issuers of
securities for the names, addresses and holdings of beneficial owners of
securities of that issuer held by the bank unless the beneficial owner has
expressly objected to disclosure of this information. To comply with the Rule,
the Custodian needs the Fund to indicate whether it authorizes the Custodian to
provide the name, address, and share positions of the Portfolio(s) to requesting
companies whose securities are owned by the Portfolio. If the Fund tells the
Custodian "no", the Custodian will not provide this information to requesting
companies. If the Fund tells the Custodian "yes" or does not check either "yes",
or "no" below, the Custodian is required by the Rule to treat the Fund as
consenting to disclosure of this information for all securities owned by the
Portfolio or any funds or accounts established by the Fund. For the Fund's
protection, the Rule prohibits the requesting company from using the Fund's or
Portfolio's name and address for any purpose other than corporate
communications. Please indicate below whether the Fund consents or objects by
checking one of the alternatives below.
YES [ ] The Custodian is authorized to release such names, address, and
share position(s). NO [x] The Custodian is not authorized to release
such names, address, and share position(s).
19. Limitation of Liability.
The references herein to the Board of the Fund are to the
Board members of the Fund as Board members and not individually or personally.
The obligations of the Fund entered into in the name of or on behalf of each
Portfolio by any of the Board members are not made individually but in their
capacity as Board members and are not binding on any of the Board members
personally. All persons dealing with a Portfolio must look solely to the assets
of that Portfolio for the enforcement of any claims against the Portfolio.
20. Confidentiality.
.........All information relating to the Fund or obtained by the
Custodian pursuant to this Agreement which is designated by the Fund as
confidential or is deemed confidential pursuant to the Services Agreement
(collectively, "Confidential Information") shall be considered and shall remain
a trade secret of, and the sole property of, the Fund and shall be held in
strict confidence by the Custodian and shall be treated in at least the most
restrictive of (a) the same manner as the Custodian protects its own
confidential information and (b) industry standards. The Custodian shall abide
fully by the constraints and requirements of confidentiality and privacy laws
and in particular take all precautions required under such laws to preserve the
security of Confidential Information. The Custodian agrees not to disclose,
publish, release, transfer or otherwise make available Confidential Information
of, or obtained from, the Fund in any form to, or for the use or benefit of, any
person or entity without the Fund's consent. The Custodian shall, however, be
permitted to disclose relevant aspects of Confidential Information to officers,
directors, agents, professional advisers, contractors, sub-contractors and
employees of it and its affiliates to the extent that such disclosure is not
restricted by law or by contract and only to the extent that such disclosure is
reasonably necessary for the performance of its duties and obligations, or the
exercise of its rights and remedies, under this Agreement; provided, however,
that the recipient agrees that the Confidential Information will not be
disclosed or duplicated in contravention of this Agreement by such officers,
directors, agents, professional advisers, contractors, sub-contractors and
employees. The obligations in this Section shall not restrict any disclosure
pursuant to any law (provided that Custodian shall give prompt notice to Fund of
the basis therefor and shall reasonably assist the Fund in resisting such
disclosure). The provisions of this Article 20 shall survive the termination of
this Agreement.
21. Year 2000.
The Custodian represents and warrants that it has used commercially
reasonable efforts to ensure that the Systems (as hereinafter defined) that are
owned by the Custodian and used to provide the custodial and fund accounting
services to be provided hereunder (the "Services") are 2000 Compliant (as
hereinafter defined). With respect to Systems that the Custodian leases or
licenses from third parties and uses in providing the Services ("Third Party
Systems"), the Custodian has used commercially reasonable efforts to test the
same, and, upon request, will certify, in accordance with the Custodian's
standard practices, that the Third Party Systems are 2000 Compliant. With
respect to the Custodian's use of third party service providers to provide the
Services or any portion thereof ("Third Party Services"), the Custodian
represents and warrants that it has used commercially reasonable efforts to
contact such service providers and to obtain from them assurances that the
systems used in providing Third Party Services are 2000 Compliant. If the
Custodian has not obtained such assurance as of the date of this Agreement, the
Custodian will use commercially reasonable efforts to replace such Third Party
Services with services for which the Custodian has received assurances that such
services are 2000 Compliant, if such replacement is available, compatible with
the Custodian's Systems and deemed by the Custodian as appropriate under the
circumstances, and if replacement is not available, the Custodian shall
institute a workaround. The Custodian agrees to provide the Fund, within 10
days' of the date hereof, with a list of all workarounds that are being sought.
Notwithstanding the foregoing, the Parties acknowledge and agree that the
Custodian cannot and does not warrant that the Systems, Third Party Systems or
Third Party Services will continue to interface with the hardware, firmware,
software (including operating systems), records or data used by Xxxxxx or third
parties, nor does the Custodian make any warranties hereunder with respect to
any public utility, communications service provider, securities or commodities
exchange, or funds transfer network.
As used herein, the term "2000 Compliant" means that software and machines
will function without material error caused by the introduction of dates falling
on or after January 1, 2000 and the term "Systems" means all intellectual
property and all computers, related equipment and other equipment used to
provide the services for which the Custodian is responsible for providing
hereunder.
22. Miscellaneous
(a) Except as otherwise specified in this Agreement, all notices,
requests, consents, approvals, agreements, authorizations, acknowledgments,
waivers and other communications required or permitted under this Agreement
shall be in writing and shall be deemed given when sent by facsimile to the
facsimile number specified below or delivered by hand to the address specified
below. A copy of any such notice shall also be sent by express air mail on the
date such notice is transmitted by facsimile to the address specified below:
In the case of the Fund:
Xxxxxx X. Rio
President and Treasurer
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
with a copy to:
X.X. Xxxxxx Investment Management Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
In the case of the Custodian:
The Bank of New York
0 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxx
Facsimile No.: 212-635-6190
Either Party may change its address or facsimile number for notification
purposes by giving the other Party five days' notice of the new address or
facsimile number and the date upon which it will become effective.
(b) EACH OF THE PARTIES HEREBY WAIVES THE RIGHT TO REQUEST A JURY
TRIAL.
(c) No delay or omission by either Party to exercise any right or power
it has under this Agreement shall impair or be construed as a waiver of such
right or power. A waiver by any Party of any breach or covenant shall not be
construed to be a waiver of any succeeding breach or any other covenant. All
waivers must be signed by the Party waiving its rights.
(d) No right or remedy herein conferred upon or reserved to either
Party (including any termination) is intended to be exclusive of any other right
or remedy, and each and every right and remedy shall be cumulative and in
addition to any other right or remedy under this Agreement, or under law,
whether now or hereafter existing.
(e) No amendment to, or change or discharge of, any provision of this
Agreement shall be valid unless in writing and signed by an authorized
representative of each of the Parties.
(f) This Agreement and the rights and obligations of the Parties under
this Agreement shall be governed by and construed in accordance with the laws of
the State of New York, without giving effect to the principles thereof relating
to the conflict of laws.
(g) Each Party irrevocably agrees that any legal action, suit or
proceeding brought by it in any way arising out of this Agreement must be
brought solely and exclusively in the United States District Court for the
Southern District of New York or in the state courts of the State of New York in
New York County and irrevocably accepts and submits to the sole and exclusive
jurisdiction of each of the aforesaid courts in personam, generally and
unconditionally with respect to any action, suit or proceeding brought by it or
against it by the other Party; provided, however, that this Section shall not
prevent a Party against whom any legal action, suit or proceeding is brought by
the other Party in the state courts of the State of New York in New York County
from seeking to remove such legal action, suit or proceeding, pursuant to
applicable Federal law, to the district court of the United States for the
district and division embracing New York County, and in the event an action is
so removed each Party irrevocably accepts and submits to the jurisdiction of the
aforesaid district court. Each Party hereto further irrevocably consents to the
service of process from any of the aforesaid courts by mailing copies thereof by
registered or certified mail, postage prepaid, to such Party at its address
designated pursuant to this Agreement, with such service of process to become
effective 30 days after such mailing.
(h) Each Party agrees that after the execution and delivery of this
Agreement and, without any additional consideration, each Party shall execute
and deliver any further legal instruments and perform any acts that are or may
become necessary to effectuate the purposes of this Agreement.
IN WITNESS WHEREOF, each of the Parties has caused this instrument to
be executed in its name and behalf by its duly authorized representative and its
seal to be hereunder affixed as of October 18, 1999.
THE INTERNATIONAL EQUITY PORTFOLIO
By _________________________
THE BANK OF NEW YORK
By _________________________
SCHEDULE A (NAME OF FUNDS/PORTFOLIOS AND EFFECTIVE DATE)
The International Equity Portfolio .....................1/24/99
SCHEDULE C (FUND ACCOUNTING ARRANGEMENTS)
Pursuant to Article 8, the Custodian agrees to perform the following
duties in accordance with the requirements of the Portfolio's Registration
Statement, the 1940 Act, applicable Internal Revenue Service ("IRS")
regulations, and procedures as may be agreed upon from time to time, including
without limitation those set forth in the Service Level Agreement pertaining to
the Fund to which the Custodian is a party. In all instances, the Custodian
agrees to perform such services in accordance with the highest industry
standards and best practices, which may include those enumerated in the Audits
of Investment Companies Audit and Accounting Guide, as in effect from time to
time. Where appropriate, the Custodian agrees to keep all records on a Portfolio
class-by-class basis. The Custodian agrees to: (a) keep and maintain the books
and records of each Portfolio pursuant to Rule 31a-1 under the 1940 Act, other
than those to be maintained by the Fund's transfer agent, including the
following:
(i) journals containing an itemized daily record in detail of all
purchases and sales of securities, all receipts and disbursements of cash
and all other debits and credits, as required by subsection (b)(1) of said
Rule;
(ii) general and auxiliary ledgers reflecting all asset, liability,
reserve, capital, income and expense accounts, including interest accrued
and interest received, as required by subsection (b)(2)(i) of said Rule;
(iii) separate ledger accounts required by subsections (b)(2)(ii) and (iii)
of said Rule; and
(iv) a monthly trial balance of all ledger accounts (except
shareholder accounts) as required by subsection (b)(8) of said
Rule.
(b) perform the following accounting services daily for each Portfolio:
(i) calculate the net asset value per share;
(ii) obtain security prices from independent pricing services, or
if such quotes are unavailable, obtain such prices from each
Portfolio's investment adviser or its designee, as approved by
the Fund's Board;
(iii) provide exception, stale and halted price reporting to Xxxxxx;
(iv) verify and reconcile with the Custodian's custody records all
daily trade activity;
(v) compute, as appropriate, each Portfolio's net income and
capital gains, dividend payables, dividend factors, 7-day
yields, 7-day effective yields, 30-day yields, weighted
average portfolio maturity and such other agreed-upon rates
and yields;
(vi) review daily the net asset value calculation and dividend
factor (if any) for each Portfolio, check and confirm the net
asset values and dividend factors for reasonableness and
deviations against agreed-upon benchmarks and tolerance
levels;
(vii) distribute net asset values and yields to NASDAQ, the Transfer
Agent, the Fund's administrator and such other third parties
as are agreed upon;
(viii) report to the Fund, at least weekly, about the daily market
pricing of securities in any money market funds, with the
comparison to the amortized cost basis;
(ix) determine unrealized appreciation and depreciation on
securities held in variable net asset value Portfolios;
(x) record all corporate actions affecting securities held by each
Portfolio, including dividends, stock splits and
recapitalizations;
(xi) amortize premiums and accrete discounts on securities
purchased at a price other than face value, if requested by
the Fund;
(xii) record and reconcile with the Transfer Agent all capital stock
activity; (xiii) update fund accounting system to reflect rate changes
on variable interest rate instruments; (xiv) post Portfolio
transactions to appropriate categories; (xv) accrue expenses of each
Portfolio according to instructions received from the Fund's
administrator;
(xvi) calculate book capital account balances; (xvii) maintain tax
books and records;
(xviii) prepare capital allocation reports in accordance with
Regulation 1.704-3(e)(3) (special aggregation rule for
securities partnerships) under the U.S. Internal Revenue Code,
based upon tax adjustments supplied by the Portfolio's
administrator;
C-3
S:\Funds L egal\DSFNDLGL\MASTFEED\ie\CUSTODYintEQ.doc
(xix) determine the outstanding receivables and payables for all (1)
security trades, (2) Portfolio share transactions and (3)
income and expense accounts;
(xx) provide accounting reports in connection with the Fund's
regular annual audit and other audits and examinations by
regulatory agencies;
(xxi) advise the Fund and Xxxxxx daily of the amount of any
overdraft and the circumstances giving rise to each such
overdraft; and
(xxii) provide such periodic reports as the Fund shall reasonably
request. In connection with the provision of these services, the Custodian
agrees:
(a) to maintain, in a format acceptable to the Fund, documents in
accordance with the applicable provisions of Rule 31a-2 of the 1940 Act,
and with requirements of other applicable domestic regulators, such as the
IRS, or Applicable Foreign Regulators (as hereinafter defined). The
Custodian agrees to make such documents available upon reasonable request
for inspection by officers, employees and auditors of the Fund during the
Custodian's normal business hours. For purposes of this subclause (a),
Applicable Foreign Regulator shall mean a foreign regulator designated as
such by the Fund by Proper Instructions and a foreign regulator actually
known to the Custodian to have authority over the Fund or its operations.
Promptly after the identification of an Applicable Foreign Regulator,
appropriate representatives of the Custodian and the Fund shall meet and
determine the requirements to which the Applicable Foreign Regulator would
subject the Fund. If the Custodian and the Fund determine, in the exercise
of their reasonable judgment, that complying with such requirements would
impose a substantial additional burden on the Custodian, the Fund and the
Custodian agrees to negotiate in good faith, taking into account all
relevant circumstances, an appropriate change in the fees payable
hereunder.
(b) that all records maintained and preserved by the Custodian pursuant to
this Agreement which the Portfolio is required to maintain and preserve
shall be and remain the property of the Portfolio and shall be
surrendered to the Portfolio promptly upon request in the form in which
such records have been maintained and preserved. Upon reasonable
request of the Portfolio, the Custodian shall provide, in the form
reasonably requested by the Fund, any records included in any such
delivery, and the Fund shall reimburse the Custodian for its expenses
of providing such records in such form;
(c) to make reasonable efforts to determine (i) the taxable nature of
any distribution or amount received by or deemed received by, or payable to
the Portfolio; (ii) the taxable nature or effect on the Portfolio or its
shareholders of any corporate actions, class actions, tax reclaims, tax
refunds, or similar events; (iii) the taxable nature or taxable amount of
any distribution or dividend paid, payable, or deemed paid by the Portfolio
to its shareholders; or (iv) the effect under any federal, state or foreign
income tax laws of the Portfolio making or not making any distribution or
dividend payment or any election with respect thereto, in each case subject
to review by the Fund or a designee of the Fund, subject to the following:
(w) with respect to determinations contemplated by this clause (c) that a
Prudent Fund Accountant would reasonably consider to be, and that the
Custodian considers to be, non-routine in nature, the Custodian may seek in
writing the approval or authorization of the Fund or a designee of the Fund
and shall not be required to act in respect of any such determination (as
to which a written request for approval or authorization shall have been
made) without such approval or authorization; (x) the Custodian need not
make any such accrual, unless and until such accrual has been approved and
authorized by the Fund or its designee; (y) the Fund shall, or shall cause
its designee, to provide such approval and authorization, or approval and
authorization of different determinations(s), promptly; and (z) provided
the Custodian has made the reasonable efforts described in this clause (c)
and thereafter has acted in accordance with the approvals and
authorizations of the Fund or its designee, the Custodian shall have no
liability for any such accrual if it otherwise, in performing its services
hereunder, is not in breach of this Agreement. The Custodian shall accrue
for these actions appropriately; and
(d) to provide such records and assistance, including office space within
the Custodian's premises, to the Fund's independent accountants in
connection with the services such accountants provide to the Fund, as
such accountants shall reasonably request.
The parties further agree as follows with respect to the provision of services
pursuant to this Schedule C: (a) The Custodian may provide services similar or
identical to those covered in this Schedule C to other
corporations, associations or entities of any kind. Any and all
operational procedures, techniques and devices developed by the
Custodian in connection with the performance of its duties and
obligations under this Schedule C, including those developed in
conjunction with the Fund (other than those for which the Fund has
paid the Custodian in whole or in part to develop), shall be and remain
the Custodian's property, and the Custodian shall be free to employ
such procedures, techniques and devices in conjunction with the
performance of any other contract with any other person, whether or not
the provisions of such contract are similar or identical to this
provision of this Schedule C.
(b) The Custodian may rely on the Fund's then currently effective
Prospectus, and the Fund shall promptly advise the Custodian of any
amendments thereto and provide copies of such amendments to the
Custodian.
(c) Both the Custodian and the Fund or its designee shall use reasonable
efforts to identify any changes in domestic and foreign laws and
regulations applicable to the Custodian's providing of services under
this Schedule C, each shall promptly advise the other of any changes it
identifies, and upon any such identification the Fund and the Custodian
shall agree on any reasonable alteration to the services to be provided
by the Custodian under this Schedule C.
(d) The Fund or its designee shall (i) furnish promptly to the Custodian
(and the Custodian may rely upon) the amounts of, or written formulas
or methodologies to be used by the Custodian to calculate the amounts
of, Fund liabilities and (ii) specify the timing for accruals of such
liabilities. The Custodian shall request such additional information as
it deems reasonably necessary for it to perform its services under this
Schedule C.
(e) The Custodian shall not be required to include as Fund liabilities and
expenses, nor use in its calculations hereunder, including, without
limitation, as a reduction of net asset value, any accrual for any U.S.
federal or state income taxes, unless and until the Fund or its
designee shall have specified to the Custodian the precise amount of
the same to be included in liabilities and expenses or used to reduce
net asset value. The Custodian agrees to include as a Fund liability
proper accruals for foreign taxes, unless, after being advised of the
amount and the basis for the accrual, the Fund by Proper Instructions
directs the Custodian not to do so.
(f) The Fund or its designee shall furnish to the Custodian, and the
Custodian may rely upon, the following types of information (and
explanations thereof): (i) the Fund's tax basis in debt obligations
acquired by the Fund before the Custodian's becoming custodian
hereunder, the dates of such acquisitions, and the amount of premium
previously amortized and the discount previously included in income,
(ii) the amounts credited to any capital accounts, (iii) the amount of
any reserves, and (iv) similar information which is required by the
Custodian for performing the services and is neither possessed by the
Custodian as custodian nor available from a third party.
(g) References to corporate actions in clause (b)(x) are limited to
corporate actions of which the Custodian has or is deemed to have
knowledge under Section 2.2.
(h) The Custodian shall not be responsible for, and shall not incur
any loss or liability with respect to: any errors or omissions in
information supplied by the Fund or its designee that the Custodian has
reviewed and has concluded is free of manifest error; any improper use by
the Fund, its designees, agents, distributor or investment adviser of any
valuations or computations supplied by the Custodian under this Agreement;
any valuations of securities supplied by the Fund or an independent pricing
service approved by the Fund's Board, provided that, with respect to such
valuations, the Custodian has otherwise complied with this Schedule C, has
reviewed the valuations and has concluded they are free of manifest error;
any tax determination authorized and approved by the Fund or its designee
that the Custodian has reviewed and has concluded is free of manifest
error; or any changes in U.S. law or regulations applicable to the
Custodian's performance not identified by the Custodian's use of reasonable
efforts which are not identified to the Custodian by the Fund.
SCHEDULE D (FOREIGN CUSTODY MANAGER)
A. Definitions
Whenever used in this Schedule, the following words and phrases, unless
the context otherwise requires, shall have the following meanings:
1........"Eligible Foreign Custodian" shall have the meaning provided in
Rule 17f-5.
2........"Monitoring System" shall mean a system established by BNY to
fulfill the Responsibilities specified in clauses 1(d) and 1(e) of Section C.
3........"Qualified Foreign Bank" shall have the meaning provided in Rule
17f-5.
4........"Responsibilities" shall mean the responsibilities delegated to
the Custodian as a Foreign Custody Manager with respect to each Specified
Country and each Eligible Foreign Custodian selected by the Custodian, as such
responsibilities are more fully described in Section C.
5........"Rule 17f-5" shall mean Rule 17f-5 under the 1940 Act.
6........"Securities Depository" shall mean any securities depository
or clearing agency within the meaning of Section (a)(1)(ii) or (a)(1)(iii) of
Rule 17f-5.
7........"Specified Country" shall mean each country listed on Schedule B
of this Agreement and each country, other than the United States, constituting
the primary market for a security with respect to which the Fund has given
settlement instructions to the Custodian.
B. The Custodian as a Foreign Custody Manager
1........The Fund on behalf of its Board hereby delegates to the
Custodian with respect to each Specified Country the Responsibilities.
2........The Custodian accepts the Board's delegation of
Responsibilities and agrees in performing the Responsibilities to exercise
reasonable care, prudence and diligence such as a person having responsibility
for the safekeeping of the Fund's assets would exercise.
.................. D-1
3........The Custodian shall provide to the Board at such times as the
Board deems reasonable and appropriate based on the circumstances of the Fund's
foreign custody arrangements written reports notifying the Board of the
placement of assets of the Fund with a particular Eligible Foreign Custodian
within a Specified Country and of any material change in the arrangements
(including, in the case of Qualified Foreign Banks, any material change in any
contract governing such arrangements and in the case of Securities Depositories,
any material change in the established practices or procedures of such
Securities Depositories) with respect to assets of the Fund with any such
Eligible Foreign Custodian. C. Responsibilities..1. Subject to the provisions of
this Schedule D, the Custodian shall with respect to each Specified Country
select an Eligible Foreign Custodian. In connection therewith the Custodian
shall: (a) determine that assets of each Portfolio held by such Eligible Foreign
Custodian will be subject to reasonable care, based on the standards applicable
to custodians in the relevant market in which such Eligible Foreign Custodian
operates, after considering all factors relevant to the safekeeping of such
assets, including, without limitation, those contained in paragraph (c)(1) of
Rule 17f-5, (b) determine that the Fund's foreign custody arrangements with each
Qualified Foreign Bank are governed by a written contract with the Custodian
(or, in the case of a Securities Depository, by such a contract, by the rules or
established practices or procedures of the Securities Depository, or by any
combination of the foregoing) which will provide reasonable care for the Fund's
assets based on the standards specified in paragraph (c)(1) of Rule 17f-5; (c)
determine that each contract with a Qualified Foreign Bank shall include the
provisions specified in paragraphs (c)(2)(i)(A) through (F) of Rule 17f-5 or
alternatively, in lieu of any or all of such (c)(2)(i)(A) through (F)
provisions, such other provisions as the Custodian determines will provide, in
their entirety, the same or a greater level of care and protection for the
assets of the Fund as such specified provisions; (d) monitor pursuant to the
Monitoring System the appropriateness of maintaining the assets of the Fund with
a particular Eligible Foreign Custodian pursuant to paragraph (c)(1) of Rule
17f-5 and, in the case of a Qualified
D-2
Foreign Bank, any material change in the contract governing such arrangement
and, in the case of a Securities Depository, any material change in the
established practices or procedures of such Securities Depository; and (e)
advise the Fund whenever an arrangement (including, in the case of a Qualified
Foreign Bank, any material change in the contract governing such arrangement and
in the case of a Securities Depository, any material change in the established
practices or procedures of such Securities Depository) described in preceding
clause (d) no longer meets the requirements of Rule 17f-5. Anything in this
Agreement to the contrary notwithstanding the Custodian in no event shall be
deemed to have selected any Securities Depository the use of which is mandatory
by law or regulation or because securities cannot be withdrawn from such
Securities Depository or because maintaining securities outside the Securities
Depository is not consistent with prevailing custodial practices in the relevant
market (each, a "Compulsory Depository"); it being understood however, that for
each Compulsory Depository utilized or intended to be utilized by the Fund, the
Custodian shall provide the Fund from time to time with information addressing
the factors set forth in Section (c)(1) of Rule 17f-5 and the Custodian's
opinions with respect thereto so that the Fund may determine the appropriateness
of placing Fund assets therein.
2........For purposes of clause (d) of preceding Section 1, the
Custodian's determination of appropriateness shall not include, nor be deemed to
include, any evaluation of Country Risks associated with investment in a
particular country. For purposes hereof, "Country Risks" shall mean systemic
risks of holding assets in a particular country including, but not limited to,
(a) the use of Compulsory Depositories, (b) such country's financial
infrastructure, (c) such country's prevailing custody and settlement practices,
(d) nationalization, expropriation or other governmental actions, (e) regulation
of the banking or securities industry, (f) currency controls, restrictions,
devaluations or fluctuations, and (g) market conditions which affect the orderly
execution of securities transactions or affect the value of securities.
.................. D-3
SCHEDULE E (CASH MANAGEMENT PROVISIONS)
A. DEFINITIONS
Whenever used in this Schedule, unless the context otherwise requires,
the following words shall have the meanings set forth below:
1........"Account" shall mean an account in the name of the Fund or its
transfer agent for receiving and disbursing money as provided in this Agreement.
2........"ACCESS" shall mean any on-line communication system provided
by the Custodian hereunder whereby either the receiver of such communication is
able to verify by codes or otherwise with a reasonable degree of certainty the
identity of the sender of such communication, or the sender is required to
provide a password or other identification code.
3........"Authorized Person" shall mean either (A) any person duly
authorized by corporate resolutions of the Fund's Board to give Oral and/or
Written Instructions on behalf of the Fund, such persons to be designated in
Proper Instructions, which contain a specimen signature of such person, or (B)
any person sending or transmitting any instruction or direction through ACCESS.
4........"Federal Funds" shall mean immediately available same day funds.
5........"Omnibus Account" shall mean (A) an account at the Custodian
for the benefit of the Fund and the other investment companies listed on Exhibit
E-1 into which money to be deposited into an Account is initially credited
pending its transfer to such Account pursuant to Section C hereof, and (B) an
account at the Custodian for the benefit of the Fund and such other investment
companies in which money to be transferred from an Account pursuant to Section C
is deposited pending its disbursement pursuant to Section C.
6........"Oral Instructions" shall mean verbal instructions actually
received by the Custodian from an Authorized Person or from a person reasonably
believed by the Custodian to be an Authorized Person.
7........"Written Instructions" shall mean written instructions
actually received by the Custodian from an Authorized Person or from a person
reasonably believed by the Custodian to be an Authorized Person by letter,
memorandum, telegram, cable, telex, facsimile or through ACCESS.
B. APPOINTMENT OF THE CUSTODIAN
The Fund hereby appoints the Custodian as its agent for the term of
this Contract to perform the cash management services set forth herein. The
Custodian hereby accepts appointment as such agent for the Fund and agrees to
establish and maintain one or more Accounts and/or Omnibus Accounts as the
parties shall determine are necessary to receive and disburse money as provided
in this Agreement.
C. CASH MANAGEMENT SERVICES
1........Receipt of Money. The Custodian shall receive money pursuant to
this Schedule E for credit to an Account only:
(i) by wire transfer to an account maintained at the Federal
Reserve Bank of New York as identified in writing by the
Custodian to the Fund;
(ii) by transfer from another Account maintained by the Fund
with the Custodian under this Agreement;
(iii) by transfer from another account maintained by the Fund
with the Custodian, including the Fund's custodian account
under this Contract; or
(iv) ....by transfer from any other account maintained with the
Custodian.
All money received by the Custodian shall be credited upon receipt, but subject
to final payment and receipt by the Custodian of immediately available funds,
and receipt by the Custodian of such forms, documents and information as are
required by the Custodian from time to time and received in the appropriate time
frames. If an Omnibus Account has been established for the Fund for the receipt
of money, such money shall be initially credited to the Omnibus Account pending
its allocation to, and deposit in, an Account. The Custodian, upon 24 hours'
prior notice to the Fund, shall be entitled to reverse any credits previously
made to the Fund's Account or an Omnibus Account where money is not finally
collected or where a credit to such account was in error.
2........Disbursement of Money. The Custodian shall disburse money
credited to an Account pursuant to this Schedule E only pursuant to Written
Instructions of the Fund transmitted through ACCESS to transfer funds as
directed by the Fund. The Custodian shall be required to disburse money in
accordance with the foregoing only insofar as such money is immediately
available and on deposit with the Custodian. If an Omnibus Account has been
established hereunder for the disbursement of money, such money shall be
credited to the Omnibus Account pending such disbursement. All instructions
directing the disbursement of money credited to an Account or Omnibus Account
under this Agreement (whether through ACCESS or by Oral Instructions pursuant to
Section D hereof) must identify an account to which such money shall be
transferred, and include all other information reasonably required by the
Custodian from time to time. It is understood and agreed that with respect to
any such instructions, when instructed to credit or pay a party by both name and
a unique numeric or alpha-numeric identifier (e.g., ABA number or account
number), the Custodian and any other financial institution participating in the
funds transfer may rely solely on the unique identifier, even if it identifies a
party different than the party named. Such reliance on a unique identifier shall
apply to beneficiaries named in such instructions as well as any financial
institution which is designated in such instruction to act as an intermediary in
a funds transfer.
3........Advances. In the event of any advance, overdraft or other
indebtedness in connection with an Omnibus Account in excess of a minimum to be
agreed upon from time to time by the Fund and the Custodian, the Custodian shall
be furnished on the next Business Day after such advance, overdraft or
indebtedness with Written Instructions identifying the Portfolio and each other
investment company to which such advance, overdraft or indebtedness relates, and
the amount allocable to each of them. Any overdraft, advance or indebtedness
arising in any Omnibus Account for the disbursement of money in connection with
any redemption of a Portfolio's shares shall be allocated to such Portfolio,
except that, if such Portfolio invests primarily in the shares of another
investment company, such overdraft, advance or indebtedness shall be allocated
to such other investment company.
4........Compliance with Law. The Fund agrees that upon allocation of
all advances, overdrafts or indebtedness to its account pursuant to Section C.3,
the total borrowings of each Portfolio from all sources (including the
Custodian) shall be in conformity with the requirements and limitations set
forth in the 1940 Act and each Portfolio's prospectus. The Fund shall promptly
(and in any event within one Business Day) notify the Custodian in writing
whenever it fails to comply with any of the foregoing requirements.
D. ACCESS; CALL-BACK SECURITY PROCEDURE.
1........Services Generally. The Fund shall be permitted to utilize
ACCESS to obtain direct on-line access to its Accounts and Omnibus Accounts.
ACCESS shall permit the Fund at the times mutually agreed upon by the Custodian
and the Fund to receive reports, make inquiries, instruct the Custodian to
disburse money in accordance with Section C, and perform such other functions as
are more fully set forth in Exhibit E-2 hereto.
2........Permitted Use; Proprietary Information; Equipment. (a) Upon
delivery to the Fund of software enabling it to utilize ACCESS (the "Software"),
the Custodian grants to the Fund a personal, nontransferable and nonexclusive
license to use the Software solely for the purpose of transmitting Written
Instructions, receiving reports, making inquiries or otherwise communicating
with the Custodian in connection with the Account(s) or the Omnibus Account. The
Fund shall use the Software solely for its own internal and proper business
purposes and not in the operation of a service bureau. Except as set forth
herein, no license or right of any kind is granted to the Fund with respect to
the Software. The Fund acknowledges that the Custodian and its suppliers retain
and have title and exclusive proprietary rights to the Software, including any
trade secrets or other ideas, concepts, know-how, methodologies, or information
incorporated therein and the exclusive rights to any copyrights, trademarks and
patents (including registrations and applications for registration of either),
or other statutory or legal protections available in respect thereof. The Fund
further acknowledges that all or a part of the Software may be copyrighted or
trademarked (or a registration or claim made therefor) by the Custodian or its
suppliers. The Fund shall not take any action with respect to the Software
inconsistent with the foregoing acknowledgments, nor shall the Fund attempt to
decompile, reverse engineer or modify the Software. The Fund may not copy, sell,
lease or provide, directly or indirectly, any of the Software or any portion
thereof to any other person or entity without the Custodian's prior written
consent. The Fund may not remove any statutory copyright notice or other notice
included in the Software or on any media containing the Software. The Fund shall
reproduce any such notice on any reproduction of the Software and shall add any
statutory copyright notice or other notice to the Software or media upon the
Custodian's reasonable request.
3........Limited Representations or Warranties. The Software does not
infringe upon the proprietary rights of any third party and the Custodian has no
actual knowledge that a Destructive Element (as defined below) has been coded or
introduced into the Software. A Destructive Element means code or data (a)
intentionally designed to disrupt, disable, harm, or otherwise impede in any
manner, including aesthetical disruptions or distortions, the operation of the
Software or the computers and related equipment used to provide the services to
be provided under this Schedule E (sometimes referred to as "viruses" or
"worms"), (b) that would disable the Software or the computers and related
equipment used to provide the services to be provided under this Schedule E or
impair in any way their operation based on the elapsing of a period of time,
exceeding an authorized number of copies, advancement to a particular date or
other numeral (sometimes referred to as "time bombs", "time locks", or "drop
dead" devices), (c) that would permit the Custodian to access the Software or
computers and related equipment used to provide the services to be provided
under this Schedule E to cause such disablement or impairment (sometimes
referred to as "traps", "access codes" or "trap door" devices), or (d) which
contains any other similar harmful, malicious or hidden procedures, routines or
mechanisms which would cause such programs to cease functioning or to damage or
corrupt data, storage media, programs, equipment or communications, or otherwise
interfere with operations. Other than provided above, the Custodian and its
manufacturers and suppliers make no warranties or representations, express or
implied, in fact or in law, including but not limited to warranties of
merchantability and fitness for a particular purpose, in connection with the
Fund's use of ACCESS or the Software.
4........Security; Reliance; Unauthorized Use. The Fund will, and will
cause all persons utilizing ACCESS to, treat the user and authorization codes,
passwords and authentication keys applicable to ACCESS with extreme care. The
Custodian is hereby irrevocably authorized to act in accordance with and rely on
Written Instructions received by it through ACCESS. The Fund acknowledges that
it is its sole responsibility to assure that only Authorized Persons use ACCESS
and that the Custodian shall not be responsible nor liable for any unauthorized
use thereof, and agrees that the security procedures to be followed in
connection with the Fund's transmission of Written Instructions through ACCESS
provide to it a commercially reasonable degree of protection in light of its
particular needs and circumstances.
5........Funds Transfer Back-Up Procedure. (a) In the event ACCESS is
inoperable and the Fund is unable to utilize ACCESS for the transmission of
Written Instructions to the Custodian to transfer funds, the Fund may give Oral
Instructions regarding funds transfers, it being expressly understood and agreed
that the Custodian's acting pursuant to such Oral Instructions shall be
contingent upon the Custodian's verification of the authenticity thereof
pursuant to the Call-Back Security Procedures annexed as Exhibit E-3 hereto. In
this regard, the Fund shall deliver to the Custodian a Funds Transfer Telephone
Instruction Authorization in the form of Exhibit E-4 hereto, identifying the
individuals authorized to deliver and/or confirm all such Oral Instructions. The
Fund understands and agrees that the Procedure is intended to determine whether
Oral Instructions received pursuant to this Section are authorized but is not
intended to detect any errors contained in such instructions. The Fund hereby
accepts the Procedure and confirms its belief that the Procedure is commercially
reasonable.
(b)......In the absence of negligence, the Custodian shall have no
liability whatsoever for any funds transfer executed in accordance with Oral
Instructions delivered and confirmed pursuant to this Schedule E.
(c)......The Custodian reserves the right to suspend acceptance of Oral
Instructions pursuant to this Schedule E if conditions exist which the
Custodian, in its sole discretion, reasonably believes have created an
unacceptable security risk. The Custodian agrees to provide one Business Day's
prior notice of its intention to suspend such acceptance, to advise the Fund in
writing of the specific conditions giving rise to its determination and to
cooperate fully with the Fund in correcting the conditions.
6........Export Restrictions. EXPORT OF THE SOFTWARE IS PROHIBITED BY
UNITED STATES LAW. THE FUND AGREES THAT IT WILL NOT UNDER ANY CIRCUMSTANCES
RESELL, DIVERT, TRANSFER, TRANSSHIP OR OTHERWISE DISPOSE OF THE SOFTWARE (IN ANY
FORM) IN OR TO ANY OTHER COUNTRY. IF THE CUSTODIAN DELIVERED THE SOFTWARE TO THE
FUND OUTSIDE OF THE UNITED STATES, THE SOFTWARE WAS EXPORTED FROM THE UNITED
STATES IN ACCORDANCE WITH THE EXPORT ADMINISTRATION REGULATIONS. DIVERSION
CONTRARY TO U.S. LAW IS PROHIBITED. The Fund hereby authorizes the Custodian to
report its name and address to government agencies to which the Custodian is
required to provide such information by law.
7........Encryption. The Fund acknowledges and agrees that encryption
may not be available for every communication through ACCESS, or for all data.
The Fund agrees that Custodian may deactivate any encryption features at any
time, without notice or liability to the Fund, for the purpose of maintaining,
repairing or troubleshooting ACCESS or the Software. The Custodian shall use
reasonable efforts to notify the Fund before deactivating any encryption
feature. If it is unable to provide prior notice, the Custodian agrees to give
the Fund notice of such deactivation as promptly as practicable thereafter and,
in any event, within three days thereafter.
E. CONCERNING THE BANK.
For purposes of this Schedule E only, provided it has acted in good
faith and without negligence, the Custodian shall not be liable for:
(a)......the due authority of any Authorized Person acting on behalf of the
Fund in connection with the services to be provided pursuant to this Schedule E;
(b)......any disbursement directed by the Fund, regardless of the purpose
therefor; or
(c)......the propriety of any transaction in any Account or Omnibus
Account.
