EXHIBIT (8)
CUSTODY AGREEMENT
This AGREEMENT, dated as of February 22, 1995, by and between LARGE CAP
VALUE PORTFOLIO (the "Fund"), a portfolio of The Bear Xxxxxxx Funds (the
"Company"), an unincorporated business trust organized under the laws of the
Commonwealth of Massachusetts, and CUSTODIAL TRUST COMPANY, a bank organized and
existing under the laws of the State of New Jersey (the "Custodian").
W I T N E S S E T H:
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WHEREAS, the Fund desires that its Securities, cash and other assets be
held and administered by Custodian pursuant to this Agreement;
WHEREAS, the Fund is an investment portfolio represented by a series of
Shares constituting part of the capital stock of the Company, an open-end
management investment company registered under the 1940 Act (as hereinafter
defined);
WHEREAS, Custodian represents that it is a bank having the qualifications
prescribed in Section 26(a)(i) of the 1940 Act;
NOW, THEREFORE, in consideration of the mutual agreements herein made, the
Fund and Custodian hereby agree as follows:
ARTICLE I
DEFINITIONS
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Whenever used in this Agreement, the following terms, unless the context
otherwise requires, shall mean:
1.1 "AUTHORIZED PERSON" means any Officer or other person duly authorized
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by resolution of the Board of Directors to give Oral Instructions and Written
Instructions on behalf of the Fundand identified, by name or by office, in
Exhibit A hereto or any person duly designated to do so by an investment adviser
of the Fund specified by the Fund in Exhibit B hereto.
1.2 "BOARD OF DIRECTORS" means the Board of Trustees of the Fund or, when
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permitted under the 1940 Act, the Executive Committee thereof, if any.
1.3 "BOOK-ENTRY SYSTEM" means a book-entry system maintained by a Federal
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Reserve bank as provided for in Subpart O of Treasury Circular Xx. 000, 00 XXX
306, in Subpart B of 31 CFR Part 350, or in such other book-entry regulations of
federal agencies as are substantially in the form of such Subpart O.
1.4 "BUSINESS DAY" means any day recognized as a settlement day by The
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New York Stock Exchange, Inc. and on which banks in the State of New Jersey are
open for business.
1.5 "CUSTODY ACCOUNT" means the account in the name of the Fund, which is
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provided for in Section 3.2 below.
1.6 "ELIGIBLE FOREIGN CUSTODIAN" means any banking institution, trust
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company or other entity organized under the laws of a country other than the
United States which is eligible under Rule 17f-5 under the 1940 Act to act as a
sub-custodian for Foreign Securities and other assets of the Fund held outside
the United States.
1.7 "FOREIGN SECURITIES" means Securities as defined in paragraph (c)(1)
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of Rule 17f-5 under the 1940 Act.
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1.8 "FOREIGN SECURITIES DEPOSITORY" means a securities depository or
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clearing agency as defined in subparagraphs (c)(2)(iii) or (iv) of Rule 17f-5
under the 0000 Xxx.
1.9 "1940 ACT" means the Investment Company Act of 1940, as amended.
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1.10 "OFFICER" means the President, any Vice President, the Secretary, any
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Assistant Secretary, the Treasurer, or any Assistant Treasurer of the Fund.
1.11 "ORAL INSTRUCTIONS" means instructions orally transmitted to and
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accepted by Custodian which are (a) reasonably believed by Custodian to have
been given by an Authorized Person, (b) recorded and kept among the records of
Custodian made in the ordinary course of business, and (c) orally confirmed by
Custodian.
1.12 "PROPER INSTRUCTIONS" means Oral Instructions or Written
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Instructions. Proper Instructions may be continuing Written Instructions when
deemed appropriate by both parties.
1.13 "SECURITIES" includes, without limitation, common and preferred
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stocks, bonds, call options, put options, debentures, notes, bank certificates
of deposit, forward contracts, futures contracts (including those related to
indexes), options on futures contracts or indexes, bankers' acceptances,
mortgage-backed securities or other obligations, and any certificates, receipts,
warrants or other instruments or documents representing rights to receive,
purchase or subscribe for the same, or evidencing or representing any other
rights or interests therein, or any similar property or assets that Custodian
has the facilities to clear and to service.
1.14 "SECURITIES DEPOSITORY" means The Depository Trust Company and
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(provided that Custodian has received a copy of a
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resolution of the Board of Directors of the Fund, certified by an Officer,
specifically approving the use thereof as a depository for the Fund) any other
clearing agency registered with the Securities and Exchange Commission under
Section 17A of the Securities Exchange Act of 1934 (the "1934 Act"), which acts
as a system for the central handling and deposit of Securities where all
Securities of any particular class or series of an issuer deposited within the
system are treated as fungible and may be transferred or pledged by bookkeeping
entry without physical delivery of the Securities.
1.15 "SHARES" means the shares into which the capital stock of the Fund is
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divided.
1.16 "WRITTEN INSTRUCTIONS" means (a) written communications received by
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Custodian and signed by two persons reasonably believed by Custodian to be
Authorized Persons, or (b) communications by telex or any other such system from
two persons reasonably believed by Custodian to be Authorized Persons, or (c)
communications between electro-mechanical or electronic devices.
ARTICLE II
APPOINTMENT OF CUSTODIAN
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2.1 APPOINTMENT. The Fund hereby appoints Custodian as custodian of all
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such Securities, cash and other assets as may be acceptable to Custodian and
from time to time delivered to it by the Fund or others for the account of the
Fund.
2.2 ACCEPTANCE. Custodian hereby accepts appointment as such custodian
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and agrees to perform the duties thereof as hereinafter set forth.
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ARTICLE III
CUSTODY OF CASH AND SECURITIES
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3.1 SEGREGATION. All Securities and non-cash property of the Fund in the
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possession of Custodian (other than Securities maintained by Custodian in a
Securities Depository or Book-Entry System) shall be physically segregated from
other Securities and non-cash property in the possession of Custodian and shall
be identified as belonging to the Fund.
3.2 CUSTODY ACCOUNT. (a) Custodian shall open and maintain in its trust
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department a custody account in the name of the Fund, subject only to draft or
order of Custodian, in which Custodian shall enter and carry all Securities,
cash and other assets of the Fund which are delivered to Custodian and accepted
by it. Custodian shall not be under any duty or obligation to require the Fund
to deliver to it any Securities or funds owned by the Fund and shall have no
responsibility or liability for or on account of Securities or funds not so
delivered.
(b) If Custodian at any time fails to receive any of the documents
referred to in Section 3.5(a) below, then, until such time as it receives such
document, it shall not be obligated to receive any Securities of the Fund into
the Custody Account and shall be entitled to return to the Fund any Securities
of the Fund that it is holding.
(c) Custodian may, but shall not be obligated to, hold Securities
that may be held only in physical form.
(d) Custodian is authorized to disclose the name, address and
securities positions of the Fund to the issuers of such securities when
requested by them to do so.
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3.3 APPOINTMENT OF AGENTS. (a) Custodian may employ suitable agents,
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which may include affiliates of Custodian, such as Bear, Xxxxxxx & Co. Inc. or
Bear, Xxxxxxx Securities Corp., both of which are registered broker-dealers.
The appointment of any agent pursuant to this Section 3.3(a) shall not relieve
Custodian of any of its obligations or liabilities under this Agreement.
However, no Book-Entry System, Securities Depository, Foreign Securities
Depository or other securities depository or clearing agency (whether foreign or
domestic) which it is or may become standard market practice to use for the
comparison and settlement of trades in securities shall be an agent or sub-
contractor of Custodian for purposes of this Section 3.3(a) or otherwise.
(b) In its discretion, Custodian may appoint, and at any time remove,
any domestic bank or trust company which is qualified to act as a custodian
under the 1940 Act as sub-custodian to hold Securities and cash of the Fund and
to carry out such other provisions of this Agreement as it may determine, and
may also open and maintain one or more banking accounts with such a bank or
trust company (any such accounts to be in the name of Custodian and subject only
to its draft or order), provided, however, that the appointment of any such
agent or opening and maintenance of any such accounts shall be at Custodian's
expense and shall not relieve Custodian of any of its obligations or liabilities
under this Agreement.
(c) Upon receipt of Written Instructions to do so and at the Fund's
expense, Custodian shall appoint as sub-custodian such domestic bank or trust
company as is named therein, provided that (i) such bank or trust company is
qualified to act as a custodian under the 1940 Act, and (ii) notwithstanding
anything to the contrary in Section 7.1 below or elsewhere in this Agreement,
Custodian shall have no greater liability to the Fund for the actions or
omissions of any such sub-custodian than any such sub-custodian has to
Custodian, and Custodian shall not be required
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to discharge any such liability which may be imposed on it unless and until such
sub-custodian has effectively indemnified Custodian against it or has otherwise
discharged its liability to Custodian in full.
3.4 DELIVERY OF ASSETS TO CUSTODIAN. The Fund shall deliver to Custodian
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the Fund's Securities, cash and other assets, which are acceptable to Custodian,
including (a) payments of income, payments of principal and capital
distributions received by the Fund with respect to such Securities, cash or
other assets owned by the Fund at any time during the term of this Agreement,
and (b) cash received by the Fund for the issuance, at any time during such
term, of Shares. Custodian shall not be responsible for such Securities, cash
or other assets until actually received by it.
3.5 SECURITIES DEPOSITORIES AND BOOK-ENTRY SYSTEMS. Custodian may
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deposit and/or maintain Securities of the Fund in a Securities Depository or in
a Book-Entry System, subject to the following provisions:
(a) Prior to a deposit of Securities of the Fund in any Securities
Depository or Book-Entry System, the Fund shall deliver to Custodian a
resolution of the Board of Directors of the Fund, certified by an Officer,
authorizing and instructing Custodian (and any sub-custodian appointed pursuant
to Section 3.3 above) on an on-going basis to deposit in such Securities
Depository or Book-Entry System all Securities eligible for deposit therein and
to make use of such Securities Depository or Book-Entry System to the extent
possible and practical in connection with its performance hereunder (or under
the applicable sub-custody agreement in the case of such sub-custodian),
including, without limitation, in connection with settlements of purchases and
sales of Securities, loans of Securities, and deliveries and returns of
collateral consisting of Securities.
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(b) Securities of the Fund kept in a Book-Entry System or Securities
Depository shall be kept in an account ("Depository Account") of Custodian in
such Book-Entry System or Securities Depository which includes only assets held
by Custodian as a fiduciary, custodian or otherwise for customers.
(c) The records of Custodian with respect to Securities of the Fund
maintained in a Book-Entry System or Securities Depository shall at all times
identify such Securities as belonging to the Fund.
(d) If Securities purchased by the Fund are to be held in a Book-Entry
System or Securities Depository, Custodian shall pay for such Securities upon
(i) receipt of advice from the Book-Entry System or Securities Depository that
such Securities have been transferred to the Depository Account, and (ii) the
making of an entry on the records of Custodian to reflect such payment and
transfer for the account of the Fund. If Securities sold by the Fund are held
in a Book-Entry System or Securities Depository, Custodian shall transfer such
Securities upon (i) receipt of advice from the Book-Entry System or Securities
Depository that payment for such Securities has been transferred to the
Depository Account, and (ii) the making of an entry on the records of Custodian
to reflect such transfer and payment for the account of the Fund.
(e) Custodian shall provide the Fund with copies of any report
obtained by Custodian from a Book-Entry System or Securities Depository in which
Securities of the Fund are kept on the internal accounting controls and
procedures for safeguarding Securities deposited in such Book-Entry System or
Securities Depository.
(f) At its election, the Fund shall be subrogated to the rights of
Custodian with respect to any claim against a Book-Entry System or Securities
Depository or any other person for any loss or
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damage to the Fund arising from the use of such Book-Entry System or Securities
Depository, if and to the extent that the Fund has not been made whole for any
such loss or damage.
3.6 DISBURSEMENT OF MONEYS FROM THE CUSTODY ACCOUNT. Upon receipt of
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Proper Instructions, Custodian shall disburse moneys from the Custody Account,
but only in the following cases:
(a) For the purchase of Securities for the Fund but only (i) in the
case of Securities (other than options on Securities, futures contracts and
options on futures contracts), against the delivery to Custodian (or any sub-
custodian appointed pursuant to Section 3.3 above) of such Securities registered
as provided in Section 3.9 below or in proper form for transfer or, if the
purchase of such Securities is effected through a Book-Entry System or
Securities Depository, in accordance with the conditions set forth in Section
3.5 above; (ii) in the case of options on Securities, against delivery to
Custodian (or such sub-custodian) of such receipts as are required by the
customs prevailing among dealers in such options; (iii) in the case of futures
contracts and options on futures contracts, against delivery to Custodian (or
such sub-custodian) of evidence of title thereto in favor of the Fund, the
Custodian, any such sub-custodian or any nominee referred to in Section 3.9
below; and (iv) in the case of repurchase or reverse repurchase agreements
entered into by the Fund, against delivery of the purchased Securities either in
certificate form or through an entry crediting Custodian's account at a Book-
Entry System or Securities Depository with such Securities;
(b) In connection with the conversion, exchange or surrender, as set
forth in Section 3.7(f) below, of Securities owned by the Fund;
(c) For the payment of any dividends or capital gain distributions
declared by the Fund;
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(d) In payment of the redemption price of Shares as provided in
Article VI below;
(e) For the payment of any expense or liability incurred by the Fund,
including but not limited to the following payments for the account of the Fund:
interest, taxes, administration, investment management, investment advisory,
accounting, auditing, transfer agent, custodian, trustee and legal fees; and
other operating expenses of the Fund; in all cases, whether or not such expenses
are to be in whole or in part capitalized or treated as deferred expenses;
(f) For transfer in accordance with the provisions of any agreement
among the Fund, Custodian and a broker-dealer, relating to compliance with rules
of The Options Clearing Corporation and of any registered national securities
exchange (or of any similar organization or organizations) regarding escrow or
other arrangements in connection with transactions by the Fund;
(g) For transfer in accordance with the provisions of any agreement
among the Fund, Custodian, and a futures commission merchant, relating to
compliance with the rules of the Commodity Futures Trading Commission and/or any
contract market (or any similar organization or organizations) regarding account
deposits in connection with transactions by the Fund;
(h) For the funding of any uncertificated time deposit or other
interest-bearing account with any banking institution (including Custodian), but
only if the payment instructions to Custodian detail specific Securities to be
acquired;
(i) For the purchase from a bank or other financial institution of
loan participations, but only if Custodian has in its possession a copy of the
agreement between the Fund and such bank or other financial institution with
respect to the purchase of
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such loan participations and the payment instructions to Custodian detail
specific assets to be acquired;
(j) For the purchase and sale of foreign currencies or options to
purchase and sell foreign currencies for spot and future delivery on behalf and
for the account of the Fund pursuant to contracts with such banks and other
financial institutions, including Custodian, any sub-custodian and any affiliate
of Custodian, as principal, as are approved and authorized by the Fund, but only
if the payment instructions to Custodian detail specific assets to be acquired;
(k) For transfer to a broker-dealer registered under the 1934 Act or
in accordance with the provisions of any agreement among the Fund, Custodian and
such a broker-dealer as margin for a short sale of Securities;
(l) For the payment of the amounts of dividends received with respect
to Securities sold short; and
(m) For any other proper purpose, but only upon receipt, in addition
to Proper Instructions, of a copy of a resolution of the Board of Directors,
certified by an Officer, specifying the amount and purpose of such payment,
declaring such purpose to be a proper purpose of the Fund, and naming the person
or persons to whom such payment is to be made.
3.7 DELIVERY OF SECURITIES FROM THE CUSTODY ACCOUNT. Upon receipt of
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Proper Instructions, Custodian shall release and deliver Securities of the Fund
from the Custody Account but only in the following cases:
(a) Upon the sale of Securities for the account of the Fund but,
subject to Section 5.3 below, only against receipt of
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payment therefor in cash, by certified or cashiers' check or bank credit;
(b) In the case of a sale effected through a Book-Entry System or
Securities Depository, in accordance with the provisions of Section 3.5 above;
(c) To an offeror's depository agent in connection with tender or
other similar offers for Securities of the Fund; provided that, in any such
case, the cash or other consideration is to be delivered to Custodian;
(d) To the issuer thereof or its agent (i) for transfer into the name
of the Fund or any of the nominees referred to in Section 3.9 below, or (ii) for
exchange for a different number of certificates or other evidence representing
the same aggregate face amount or number of units; provided that, in any such
case, the new Securities are to be delivered to Custodian;
(e) To the broker selling Securities, for examination in accordance
with the "street delivery" custom;
(f) For exchange or conversion pursuant to any plan of merger,
consolidation, recapitalization, reorganization or readjustment of the issuer of
such Securities, or pursuant to provisions for conversion contained in such
Securities, or pursuant to any deposit agreement, including surrender or receipt
of underlying Securities in connection with the issuance or cancellation of
depository receipts; provided that, in any such case, the new Securities and
cash, if any, are to be delivered to Custodian;
(g) Upon receipt of payment therefor pursuant to any repurchase
agreement entered into by the Fund;
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(h) In the case of warrants, rights or similar Securities, upon the
exercise thereof, provided that, in any such case, the new Securities and cash,
if any, are to be delivered to Custodian;
(i) For delivery in connection with any loans of Securities pursuant
to any securities loan agreement entered into by the Fund, but only against
receipt of such collateral as is required under such securities loan agreement;
(j) For delivery as security in connection with any borrowings by the
Fund requiring a pledge of assets by the Fund, but only against receipt by
Custodian of the amounts borrowed;
(k) Pursuant to any authorized plan of liquidation, reorganization,
merger, consolidation or recapitalization of the Fund;
(l) For delivery in accordance with the provisions of any agreement
among the Fund, Custodian and a broker-dealer, relating to compliance with the
rules of The Options Clearing Corporation and of any registered national
securities exchange (or of any similar organization or organizations) regarding
escrow or other arrangements in connection with transactions by the Fund;
(m) For delivery in accordance with the provisions of any agreement
among the Fund, Custodian, and a futures commission merchant, relating to
compliance with the rules of the Commodity Futures Trading Commission and/or any
contract market (or any similar organization or organizations) regarding account
deposits in connection with transactions by the Fund;
(n) For delivery to a broker-dealer registered under the 1934 Act or
in accordance with the provisions of any agreement
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among the Fund, Custodian and such a broker-dealer as margin for a short sale of
Securities;
(o) For delivery (by a Foreign Sub-custodian or an agent of Custodian)
to the depository used by an issuer of American Depositary Receipts or
International Depositary Receipts (hereinafter collectively referred to as
"ADRs") for such Securities against a written receipt therefor adequately
describing such Securities and written evidence satisfactory to the Foreign Sub-
custodian or agent that the depository has acknowledged receipt of instructions
to issue with respect to such Securities ADRs in the name of the Custodian, or a
nominee of the Custodian, for delivery to the Custodian;
(p) To deliver ADRs to the issuer thereof against a written receipt
therefor adequately describing the ADR's delivered and written evidence
satisfactory to the Custodian that the issuer of the ADRs has acknowledged the
receipt of instructions to cause its depository to deliver the Securities
underlying such ADRs to a Foreign Sub-custodian or agent of Custodian; or
(q) For any other proper purpose, but only upon receipt, in addition
to Proper Instructions, of a copy of a resolution of the Board of Directors,
certified by an Officer, specifying the Securities to be delivered, setting
forth the purpose for which such delivery is to be made, declaring such purpose
to be a proper purpose of the Fund, and naming the person or persons to whom
delivery of such Securities is to be made.
3.8 ACTIONS NOT REQUIRING PROPER INSTRUCTIONS. Unless otherwise
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instructed by the Fund, Custodian shall with respect to all Securities held for
the Fund:
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(a) Subject to Section 8.4 below, collect on a timely basis all income
and other payments to which the Fund is entitled either by law or pursuant to
custom in the securities business;
(b) Subject to Section 8.4 below, collect on a timely basis the amount
payable upon or with respect to all Securities and other assets which may mature
or be called, redeemed, retired or otherwise become payable;
(c) Endorse for collection, in the name of the Fund, checks, drafts
and other negotiable instruments;
(d) Surrender interim receipts or Securities in temporary form for
Securities in definitive form;
(e) Execute, as custodian, any necessary declarations or certificates
of ownership under the federal income tax laws or the laws or regulations of any
other taxing authority now or hereafter in effect, and prepare and submit
reports to the Internal Revenue Service ("IRS") and to the Fund at such time, in
such manner and containing such information as is prescribed by the IRS;
(f) Hold for the Fund all rights and similar securities issued with
respect to Securities of the Fund; and
(g) In general, attend to all non-discretionary details in connection
with the sale, exchange, substitution, purchase, transfer and other dealings
with Securities and assets of the Fund.
3.9 REGISTRATION AND TRANSFER OF SECURITIES. All Securities held for the
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Fund that are issuable only in bearer form shall be held by Custodian in that
form, provided that any such Securities shall be held in a Book-Entry System if
eligible therefor. All other Securities held for the Fund may be registered in
the name of Custodian as agent, any sub-custodian appointed pursuant to Section
3.3 above, any Securities Depository, any Foreign Sub-custodian or
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Foreign Securities Depository (in the case of Foreign Securities), or any
nominee or agent of any of them. The Fund shall furnish to Custodian
appropriate instruments to enable Custodian to hold or deliver in proper form
for transfer, or to register as in this Section 3.9 provided, any Securities
delivered to Custodian which are registered in the name of the Fund.
3.10 RECORDS. (a) Custodian shall maintain complete and accurate records
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with respect to Securities, cash or other property held for the Fund, including
(i) journals or other records of original entry containing an itemized daily
record in detail of all receipts and deliveries of Securities and all receipts
and disbursements of cash; (ii) ledgers (or other records) reflecting (A)
Securities in transfer, if any, (B) Securities in physical possession, (C)
monies and Securities borrowed and monies and Securities loaned (together with a
record of the collateral therefor and substitutions of such collateral), (D)
dividends and interest received, and (E) dividends receivable and interest
accrued; and (iii) cancelled checks and bank records related thereto. Custodian
shall keep such other books and records with respect to Securities, cash and
other property of the Fund which is held hereunder as the Fund may reasonably
request.
(b) All such books and records maintained by Custodian shall (i) be
maintained in a form acceptable to the Fund and in compliance with rules and
regulations of the Securities and Exchange Commission, (ii) be the property of
the Fund and at all times during the regular business hours of Custodian be made
available upon request for inspection by duly authorized officers, employees or
agents of the Fund and employees or agents of the Securities and Exchange
Commission, and (iii) if required to be maintained by Rule 31a-1 under the 1940
Act, be preserved for the periods prescribed in Rule 31a-2 under the 1940 Act.
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3.11 REPORTS BY CUSTODIAN. Custodian shall furnish the Fund with a daily
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activity statement, including a summary of all transfers to or from the Custody
Account, on the day following such transfers. At least monthly and from time to
time, Custodian shall furnish the Fund with a detailed statement of the
Securities and moneys held for the Fund under this Agreement.
3.12 OTHER REPORTS BY CUSTODIAN. Custodian shall provide the Fund with
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such reports as the Fund may reasonably request from time to time on the
internal accounting controls and procedures for safeguarding Securities which
are employed by Custodian or any sub-custodian appointed pursuant to Section 3.3
above.
3.13 PROXIES AND OTHER MATERIALS. Unless otherwise instructed by the
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Fund, Custodian shall promptly deliver to the Fund (at the address set forth in
Article XV below) all notices of meetings, proxies and proxy materials which it
receives regarding Securities held in the Custody Account. Before delivering
them to the Fund, Custodian shall cause all proxies relating to such Securities
which are not registered in the name of the Fund, or a nominee thereof, to be
promptly executed by the registered holder of such Securities, without
indication of the manner in which such proxies are to be voted. Unless otherwise
instructed by the Fund, neither Custodian nor any of its agents shall exercise
any voting rights with respect to Securities held hereunder.
3.14 INFORMATION ON CORPORATE ACTIONS. Custodian shall promptly transmit
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to the Fund (at the address set forth in Article XV below) all written
information received by Custodian from issuers of Securities held in the Custody
Account. With respect to tender or exchange offers for such Securities,
Custodian shall promptly transmit to the Fund all written information received
by it from the issuers of the Securities whose tender or exchange is sought and
by the party (or its agents) making the tender or exchange offer. If the Fund
desires to take action with respect to
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any tender offer, exchange offer or other similar transaction, the Fund shall
notify Custodian (a) in the case of Foreign Securities, such number of Business
Days prior to the date on which Custodian is to take such action (which number
of days is in the Custodian's sole discretion) as will allow Custodian to take
such action in the relevant local market in a timely fashion, and (b) in the
case of all other Securities, at least five Business Days prior to the date on
which Custodian is to take such action.
3.15 CO-OPERATION. Custodian shall cooperate with and supply necessary
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information to the entity or entities appointed by the Fund to keep the books of
account of the Fund and/or to compute the value of the assets of the Fund.
ARTICLE IV
DUTIES OF CUSTODIAN WITH
RESPECT TO PROPERTY OF
THE FUND HELD OUTSIDE THE UNITED STATES
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4.1 APPOINTMENT OF FOREIGN SUB-CUSTODIANS. Custodian may appoint sub-
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custodians pursuant to Section 3.3 hereof or Eligible Foreign Custodians in
accordance with Rule 17f-5 under the 1940 Act as Foreign Sub-custodians
hereunder for the Fund's Securities and other assets maintained outside the
United States. Upon receipt of Written Instructions from the Fund to do so, the
Custodian shall cease the employment of any Foreign Sub-custodian for
maintaining custody of the Fund's assets.
4.2 ASSETS TO BE HELD. The Custodian shall limit the Securities and
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other assets maintained in the custody of an Eligible Foreign Custodian to: (a)
Foreign Securities, and (b) cash and cash equivalents in such amounts as the
Fund may determine.
4.3 FOREIGN SECURITIES DEPOSITORIES. Custodian or any Foreign Sub-
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custodian employed by it may maintain assets of the
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Fund in Foreign Securities Depositories in accordance with Rule 17f-5 under the
1940 Act.
4.4 AGREEMENTS WITH FOREIGN SUB-CUSTODIANS. Fund shall approve in
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writing (a) the appointment of each Foreign Sub-custodian and the agreement
pursuant to which the Custodian employs such Foreign Sub-custodian and (b) for
the appointment of each Eligible Foreign Custodian as a Foreign Sub-custodian,
the country or countries in which such Foreign Sub-custodian is authorized to
hold Securities, cash and other property of the Fund.
4.5 APPROVED FOREIGN SUB-CUSTODIANS. (a) Those Foreign Sub-custodians
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and the countries where and the Foreign Securities Depositories through which
they or the Custodian may hold Securities, cash and other property of the Fund
which the Fund has approved to date are set forth on Exhibit D hereto. Exhibit
D shall be amended from time to time as Foreign Sub-custodians, countries and/or
Foreign Securities Depositories are changed, added or deleted. The Fund shall
be responsible for informing the Custodian sufficiently in advance of a proposed
investment which is to be held in a country not listed in Exhibit E in order to
allow the Fund to give the approval required by Section 4.4 hereof and for
Custodian to put the appropriate arrangements in place with a Foreign Sub-
custodian.
(b) If the Fund invests in a Security to be held pursuant to this
Article before the foregoing procedures have been completed, such Security may
be held by such agent as Custodian may select, and Custodian shall bear no
liability to Fund for the actions of such agent, except to the extent Custodian
shall have recovered from such agent for any damages caused to Fund by such
agent.
4.6 REPORTS BY CUSTODIAN. Custodian shall supply to the Fund from time
--------------------
to time, as mutually agreed upon, reports in respect
-19-
of the safekeeping of the Securities and other assets of the Fund held by
Foreign Sub-custodians, including, but not limited to, advices or notifications
of transfers of Securities to or from the accounts maintained by Foreign Sub-
custodians for the Custodian on behalf of the Fund.
4.7 TRANSACTIONS IN FOREIGN CUSTODY ACCOUNT. (a) Upon receipt of Proper
---------------------------------------
Instructions given in any of the cases specified in Section 3.7 above, Custodian
shall cause the Foreign Sub-custodians to transfer, exchange or deliver Foreign
Securities owned by the Fund, subject to all local laws, regulations, customs,
procedures and practices applicable in the relevant local market; and
(b) Upon receipt of Proper Instructions given in any of the cases
specified in Section 3.6 above, Custodian shall cause the Foreign Sub-custodians
to pay out monies of the Fund, subject to all local laws, regulations, customs,
procedures and practices applicable in the relevant local market.
4.8 LIABILITY OF FOREIGN SUB-CUSTODIANS. The agreement pursuant to which
-----------------------------------
the Custodian employs a Foreign Sub-custodian shall require such Foreign Sub-
custodian to exercise reasonable care in the performance of its duties and shall
hold such Foreign sub-custodian responsible for any direct loss or damage
arising out of any willful misfeasance, bad faith or negligence of such Foreign
Sub-custodian in the performance of its obligations under such agreement or out
of its reckless disregard of such obligations. At its election, the Fund shall
be subrogated to the rights of Custodian with respect to any claims against a
Foreign Sub-custodian as a consequence of any such loss or damage if and to the
extent that the Fund has not been made whole for any such loss or damage.
-20-
4.9 LIABILITY OF CUSTODIAN. Notwithstanding anything to the contrary in
----------------------
Section 8.1 below or elsewhere in this Agreement, Custodian shall have no
greater liability to the Fund for the actions or omissions of any Foreign Sub-
custodian than any such Foreign Sub-custodian has to Custodian, and Custodian
shall not be required to discharge any such liability which may be imposed on it
unless and until such Foreign Sub-custodian has effectively indemnified
Custodian against it or has otherwise discharged its liability to Custodian in
full. Custodian shall have no liability for any loss or damage resulting from
acts or omissions of any Foreign Sub-custodian arising out of or caused,
directly or indirectly, by circumstances beyond such Foreign Sub-custodian's
reasonable control, including, without limitation, sovereign risk, as described
in Section 8.7, or "force majeure", as covered in Article X.
4.10 MONITORING RESPONSIBILITIES. Upon the request of the Fund, Custodian
---------------------------
shall annually furnish to the Fund information concerning all Foreign Sub-
custodians hereunder which shall be similar in kind and scope to that furnished
to the Fund in connection with the initial approval by the Fund of the
agreements pursuant to which Custodian employs such Foreign Sub-custodians or as
otherwise required by Rule 17f-5 under the 1940 Act.
4.11 TAX RECLAIMS. Upon the written request of the Fund, Custodian shall
------------
exercise, on behalf of the Fund, tax reclaim rights of Fund which arise in
connection with Foreign Securities in the Custody Account.
ARTICLE V
PURCHASE AND SALE OF INVESTMENTS OF THE FUND
--------------------------------------------
5.1 PURCHASE OF SECURITIES. Promptly upon each purchase of Securities
----------------------
for the Fund, Written Instructions shall be delivered to Custodian, specifying
(a) the name of the issuer or writer of such
-21-
Securities, and the title or other description thereof, (b) the number of
shares, principal amount (and accrued interest, if any), or other units
purchased, (c) the date of purchase and settlement, (d) the purchase price per
unit, (e) the total amount payable upon such purchase, and (f) the name of the
person to whom such amount is payable. Custodian shall upon receipt of such
Securities purchased by the Fund (or, if the Securities are transferred by means
of a private placement transaction, upon the receipt of such Securities or
payment instructions to Custodian which detail specific Securities to be
acquired) pay out of the moneys held for the account of the Fund the total
amount specified in such Written Instructions to the person named therein.
Custodian shall not be under any obligation to pay out moneys to cover the cost
of a purchase of Securities or other assets for the Fund if there is
insufficient cash available in the Custody Account.
5.2 SALE OF SECURITIES. Promptly upon each sale of Securities by the
------------------
Fund, Written Instructions shall be delivered to Custodian, specifying (a) the
name of the issuer or writer of such Securities, and the title or other
description thereof, (b) the number of shares, principal amount (and accrued
interest, if any), or other units sold, (c) the date of sale and settlement, (d)
the sale price per unit, (e) the total amount payable upon such sale, and (f)
the person to whom such Securities are to be delivered. Upon receipt of the
total amount payable to the Fund as specified in such Written Instructions,
Custodian shall deliver such Securities to the person specified in such Written
Instructions. Subject to the foregoing, Custodian may accept payment in such
form as shall be satisfactory to it, and may deliver Securities and arrange for
payment in accordance with the customs prevailing among dealers in Securities.
5.3 DELIVERY OF SECURITIES SOLD. Notwithstanding Section 5.2 above or
---------------------------
any other provision of this Agreement and subject, in the case of Foreign
Securities, to all local laws, regulations,
-22-
customs, procedures and practices applicable in the relevant local market,
Custodian, when instructed to deliver Securities against payment, shall be
entitled, but only if in accordance with generally accepted market practice, to
deliver such Securities prior to actual receipt of final payment therefor and,
exclusively in the case of Securities in physical form, to deliver such
Securities prior to receipt of payment. In any such case, the Fund shall bear
the risk that final payment for such Securities may not be made or that such
Securities may be returned or otherwise held or disposed of by or through the
person to whom they were delivered, and Custodian shall have no liability for
any of the foregoing.
5.4 PAYMENT FOR SECURITIES SOLD, ETC. In its sole discretion and from
---------------------------------
time to time, Custodian may credit the Custody Account, prior to actual receipt
of final payment thereof, with (a) proceeds from the sale of Securities which it
has been instructed to deliver against payment, (b) proceeds from the redemption
of Securities or other assets of the Fund, and (c) income from cash, Securities
or other assets of the Fund. Any such credit shall be conditional upon actual
receipt by Custodian of final payment and may be reversed if final payment is
not actually received in full. Custodian may, in its sole discretion and from
time to time, permit the Fund to use funds so credited to the Custody Account in
anticipation of actual receipt of final payment. Any such funds shall be
repayable immediately upon demand made by Custodian at any time prior to the
actual receipt of all final payments in anticipation of which funds were
credited to the Custody Account.
5.5 FINAL PAYMENT. For purposes of this Agreement, "final payment" means
-------------
payment in funds which are (or have become) immediately available, under
applicable law are irreversible, and are not subject to any security interest,
xxxx, xxxx or other encumbrance.
-23-
ARTICLE VI
REDEMPTION OF FUND SHARES
-------------------------
6.1 TRANSFER OF FUNDS. From such funds as may be available for the
-----------------
purpose in the Custody Account, and upon receipt of Proper Instructions
specifying that the funds are required to redeem Shares on account of the Fund,
Custodian shall wire each amount specified in such Proper Instructions to or
through such bank as the Fund may designate therein with respect to such amount.
6.2 NO DUTY REGARDING PAYING BANKS. Custodian shall not be responsible
------------------------------
for the payment or distribution by any bank designated in Proper Instructions
given pursuant to Section 6.1 above of any amount paid by Custodian to such bank
in accordance with such Proper Instructions.
ARTICLE VII
SEGREGATED ACCOUNTS
-------------------
Upon receipt of Proper Instructions, Custodian shall establish and maintain
a segregated account or accounts for and on behalf of the Fund, into which
account or accounts may be transferred cash and/or Securities, including
Securities maintained in a Depository Account:
(a) in accordance with the provisions of any agreement among the Fund,
Custodian and a broker-dealer (or any futures commission merchant), relating to
compliance with the rules of The Options Clearing Corporation or 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 Fund,
-24-
(b) for purposes of segregating cash or Securities in connection with
securities options purchased or written by the Fund or in connection with
financial futures contracts (or options thereon) purchased or sold by the Fund,
(c) which constitute collateral for loans of Securities made by the
Fund,
(d) for purposes of compliance by the Fund with requirements under the
1940 Act for the maintenance of segregated accounts by registered investment
companies in connection with reverse repurchase agreements, when-issued, delayed
delivery and firm commitment transactions, and short sales of securities, and
(e) for other proper purposes, but only upon receipt of, in addition
to Proper Instructions, a copy of a resolution of the Board of Directors,
certified by an Officer, setting forth the purpose or purposes of such
segregated account and declaring such purposes to be proper purposes of the
Fund.
ARTICLE VIII
CONCERNING THE CUSTODIAN
------------------------
8.1 STANDARD OF CARE. Custodian shall be held to the exercise of
----------------
reasonable care in carrying out its obligations under this Agreement, and shall
be without liability to the Fund for any loss, damage, cost, expense (including
attorneys' fees and disbursements), liability or claim which does not arise from
willful misfeasance, bad faith or negligence on the part of Custodian or
reckless disregard by Custodian of its obligations under this Agreement.
Custodian shall be entitled to rely on and may act upon advice of counsel on all
matters, and shall be without liability for any action reasonably taken or
omitted pursuant to such advice. In no event shall Custodian be liable for
special or consequential damages or be liable in any manner whatsoever for any
-25-
action taken or omitted upon instructions from the Fund or any agent of the
Fund. Custodian shall not be under any obligation at any time to ascertain
whether the Fund is in compliance with the 1940 Act, the regulations thereunder,
the provisions of its charter documents or by-laws, or its investment
objectives, policies and limitations as in effect from time to time.
8.2 ACTUAL COLLECTION REQUIRED. Custodian shall not be liable for, or
--------------------------
considered to be the custodian of, any cash belonging to the Fund or any money
represented by a check, draft or other instrument for the payment of money,
until Custodian or its agents actually receive such cash or collect on such
instrument.
8.3 NO RESPONSIBILITY FOR TITLE, ETC. So long as and to the extent that
---------------------------------
it is in the exercise of reasonable care, Custodian shall not be responsible for
the title, validity or genuineness of any property or evidence of title thereto
received or delivered by it or its agents.
8.4 LIMITATION ON DUTY TO COLLECT. Custodian shall promptly notify the
-----------------------------
Fund whenever any money or property due and payable from or on account of any
Securities held hereunder for the Fund is not timely received by it. Custodian
shall not, however, be required to enforce collection, by legal means or
otherwise, of any such money or other property not paid when due, but shall
receive the proceeds of such collections as may be effected by it or its agents
in the ordinary course of Custodian's custody and safekeeping business or of the
custody and safekeeping business of such agents.
8.5 EXPRESS DUTIES ONLY. Custodian shall have no duties or obligations
-------------------
whatsoever except such duties and obligations as are specifically set forth in
this Agreement, and no covenant or obligation shall be implied in this Agreement
against Custodian. Custodian shall have no discretion whatsoever with respect to
the
-26-
management, disposition or investment of the Custody Account and is not a
fiduciary to the Fund.
8.6 COMPLIANCE WITH LAWS. Custodian undertakes to comply with all
--------------------
applicable requirements of the Securities Act of 1933, the Securities Exchange
Act of 1934, the 1940 Act and the Commodities Exchange Act and any laws, rules
and regulations of governmental authorities having jurisdiction with respect to
the duties to be performed by Custodian hereunder. Except as specifically set
forth herein, Custodian assumes no responsibility for such compliance by the
Fund.
8.7 NO LIABILITY FOR SOVEREIGN RISK. Custodian shall not be liable for
-------------------------------
any loss involving any Securities, currencies, deposits or other property of the
Fund, whether maintained by it, a Foreign Sub-custodian, a Foreign Securities
Depository, an agent of Custodian or a Foreign Sub-custodian or a bank, or for
any loss arising from a foreign currency transaction or contract, where the loss
results from a sovereign risk or where the entity maintaining such Securities,
currencies, deposits or other property of the Fund, whether Custodian, a Foreign
Sub-custodian, a Foreign Securities Depository, an agent of Custodian or a
Foreign Sub-custodian or a bank, has exercised reasonable care maintaining such
property or in connection with the transaction involving such property. For
purposes of this Agreement, "sovereign risk" shall mean nationalization,
expropriation, devaluation, revaluation, confiscation, seizure, cancellation,
destruction or similar action by any governmental authority, de facto or de
jure; or enactment, promulgation, imposition or enforcement by any such
governmental authority of currency restrictions, exchange controls, taxes,
levies or other charges affecting the Fund's property; or acts of war,
terrorism, insurrection or revolution; or any other act or event beyond the
control of the Foreign Sub-custodian, the Foreign Securities Depository or the
agent of any of them.
-27-
ARTICLE IX
INDEMNIFICATION
---------------
9.1 INDEMNIFICATION. The Fund shall indemnify and hold harmless
---------------
Custodian, any sub-custodian and any nominee of Custodian or any sub-custodian,
from and against any loss, damages, cost, expense (including attorneys' fees and
disbursements), liability (including, without limitation, liability arising
under the Securities Act of 1933, the 1934 Act, the 1940 Act, and any federal,
state or foreign securities and/or banking laws) or claim arising directly or
indirectly (a) from the fact that Securities are registered in the name of any
such nominee, or (b) from any action or inaction by Custodian or such sub-
custodian or other agent (i) at the request or direction of or in reliance on
the advice of the Fund or any of its agents, or (ii) upon Proper Instructions,
or (c) generally, from the performance of its obligations under this Agreement,
provided that Custodian, any sub-custodian or any nominee of either of them
shall not be indemnified and held harmless from and against any such loss,
damage, cost, expense, liability or claim arising from Custodian's willful
misfeasance, bad faith, negligence or reckless disregard of its obligations
under this Agreement or, in the case of any sub-custodian or its nominee, from
such sub-custodian's willful misfeasance, bad faith, negligence or reckless
disregard of its obligations under the Agreement under which it is acting.
9.2 INDEMNITY TO BE PROVIDED. If the Fund requests Custodian to take any
------------------------
action with respect to Securities, which may, in the opinion of Custodian,
result in Custodian or its nominee becoming liable for the payment of money or
incurring liability of some other form, Custodian shall not be required to take
such action until the Fund shall have provided indemnity therefor to Custodian
in an amount and form satisfactory to Custodian.
-28-
9.3 SECURITY. As security for the payment of any present or future
--------
obligation or liability of any kind which the Fund may have to Custodian with
respect to or in connection with the Custody Account or this Agreement, the Fund
hereby pledges to Custodian all cash, Securities and other property of every
kind which is in the Custody Account or otherwise held for the Fund pursuant to
this Agreement, and hereby grants to Custodian a lien, right of set-off and
continuing security interest in such cash, Securities and other property.
ARTICLE X
FORCE MAJEURE
-------------
Neither Custodian nor the Fund shall be liable for any failure or delay in
performance of its obligations under this Agreement arising out of or caused,
directly or indirectly, by circumstances beyond its reasonable control,
including, without limitation, acts of God; earthquakes; fires; floods; wars;
civil or military disturbances; sabotage; strikes; epidemics; riots; power
failures; computer failure and any such circumstances beyond its reasonable
control as may cause interruption, loss or malfunction of utility,
transportation, computer (hardware or software) or telephone communication
service; accidents; labor disputes; acts of civil or military authority;
governmental actions; or inability to obtain labor, material, equipment or
transportation.
ARTICLE XI
REPRESENTATIONS AND WARRANTIES
------------------------------
Each of the Fund and Custodian represents and warrants for itself that (a)
it has all necessary power and authority to perform its obligations hereunder,
(b) the execution and delivery by it of this Agreement, and the performance by
it of its obligations under this Agreement, have been duly authorized by all
necessary action and will not violate any law, regulation, charter, by-law, or
other
-29-
instrument, restriction or provision applicable to it or by which it is bound,
and (c) this Agreement constitutes a legal, valid and binding obligation of it,
enforceable against it in accordance with its terms.
ARTICLE XII
COMPENSATION OF CUSTODIAN
-------------------------
The Fund shall pay Custodian such fees and charges as are set forth in the
fee schedule annexed hereto as Exhibit C, as such fee schedule may from time to
time be revised by Custodian upon 14 days' prior written notice to the Fund.
Any annual fee or other charges payable by the Fund shall be paid monthly by
automatic deduction from the Custody Account. Expenses incurred by Custodian in
the performance of its services hereunder, and all other proper charges and
disbursements of the Custody Account, shall be charged to the Custody Account by
Custodian and paid therefrom.
ARTICLE XIII
TAXES
-----
Any and all taxes, including any interest and penalties with respect
thereto, which may be levied or assessed under present or future laws or in
respect of the Custody Account or any income thereof shall be charged to the
Custody Account by Custodian and paid therefrom.
ARTICLE XIV
AUTHORIZED PERSONS
------------------
14.1 AUTHORIZED PERSONS. Custodian may rely upon and act in accordance
------------------
with any notice, confirmation, instruction or other communication received by it
from the Fund which is reasonably believed by Custodian to have been given or
signed on behalf of the Fund by one of the Authorized Persons designated by the
Fund in Exhibit A hereto, as it may from time to time be revised. The Fund
-30-
may revise Exhibit A hereto at any time by notice in writing to Custodian given
in accordance with Article XV below, but no revision of Exhibit A hereto shall
be effective until Custodian actually receives such notice.
14.2 INVESTMENT ADVISERS. Custodian may also act in accordance with any
-------------------
Written or Oral Instructions which are reasonably believed by Custodian to have
been given or signed by one of the persons designated from time to time by any
of the investment advisers of the Fund specified in Exhibit B hereto (if any) as
it may from time to time be revised. The Fund may revise Exhibit B hereto at
any time by notice in writing to Custodian given in accordance with Article XV
below, and each investment adviser specified in Exhibit B hereto (if any) may at
any time by like notice designate an Authorized Person or remove an Authorized
Person previously designated by it, but no revision of Exhibit B hereto (if any)
and no designation or removal by such investment adviser shall be effective
until Custodian actually receives such notice.
14.3 ORAL INSTRUCTIONS. Custodian may rely upon and act in accordance
-----------------
with Oral Instructions (as defined in Section 1.11 above). If Written
Instructions confirming Oral Instructions are not received by Custodian prior to
a transaction, it shall in no way affect the validity of the transaction
authorized by such Oral Instructions or the authorization of the Fund to effect
such transaction. Custodian shall incur no liability to the Fund in acting upon
Oral Instructions (as defined in Section 1.11 above). To the extent such Oral
Instructions vary from any confirming Written Instructions, Custodian shall
advise the Fund of such variance but unless confirming Written Instructions are
timely received, such Oral Instructions will govern. Either Custodian or Fund
may electronically record any instructions given by telephone and any other
telephone discussions with respect to the account of the Fund.
-31-
ARTICLE XV
NOTICES
-------
Unless otherwise specified herein, all demands, notices, instructions, and
other communications to be given hereunder shall be sent, delivered or given to
the recipient at the address set forth after its name hereinbelow:
IF TO THE FUND:
Large Cap Value Portfolio - The Bear Xxxxxxx Funds
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx
----------------
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
IF TO CUSTODIAN:
Custodial Trust Company
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000-0000
Attention: Vice President - Trust Operations
---------------------------------
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or at such other address as either party shall have provided to the other by
notice given in accordance with this Article XV. Writing shall include
transmissions by or through teletype, facsimile, central processing unit
connection, on-line terminal and magnetic tape.
ARTICLE XVI
TERMINATION
-----------
Either party hereto may terminate this Agreement by giving to the other
party a notice in writing specifying the date of such termination, which shall
be not less than sixty (60) days after the date of the giving of such notice.
Upon the date set forth in such notice this Agreement shall terminate, and
Custodian shall, upon receipt of a notice of acceptance by the successor
custodian, on
-32-
that date (a) deliver directly to the successor custodian or its agents all
Securities (other than Securities held in a Book-Entry System, Securities
Depository or Foreign Securities Depository) and cash then owned by the Fund and
held by Custodian as custodian, and (b) transfer any Securities held in a Book-
Entry System, Securities Depository or Foreign Securities Depository to an
account of or for the benefit of the Fund, provided that the Fund shall have
paid to Custodian all fees, expenses and other amounts to the payment or
reimbursement of which it shall then be entitled.
ARTICLE XVII
MISCELLANEOUS
-------------
17.1 BUSINESS DAYS. Nothing contained in this Agreement shall require
-------------
Custodian to perform any function or duties on a day other than a Business Day.
17.2 GOVERNING LAW. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the State of New York, without regard to the
conflict of law principles thereof.
17.3 REFERENCES TO CUSTODIAN. The Fund shall not circulate any printed
-----------------------
matter which contains any reference to Custodian without the prior written
approval of Custodian, excepting printed matter contained in the prospectus or
statement of additional information for the Fund and such other printed matter
as merely identifies Custodian as custodian for the Fund. The Fund shall submit
printed matter requiring approval to Custodian in draft form, allowing
sufficient time for review by Custodian and its counsel prior to any deadline
for printing.
17.4 NO WAIVER. No failure by either party hereto to exercise, and no
---------
delay by such party in exercising, any right hereunder shall operate as a waiver
thereof. The exercise by either party hereto of any right hereunder shall not
preclude the exercise
-33-
of any other right, and the remedies provided herein are cumulative and not
exclusive of any remedies provided at law or in equity.
17.5 AMENDMENTS. This Agreement cannot be changed orally and no amendment
----------
to this Agreement shall be effective unless evidenced by an instrument in
writing executed by the parties hereto.
17.6 COUNTERPARTS. This Agreement may be executed in one or more
------------
counterparts, and by the parties hereto on separate counterparts, each of which
shall be deemed an original but all of which together shall constitute but one
and the same instrument.
17.7 SEVERABILITY. If any provision of this Agreement shall be invalid,
------------
illegal or unenforceable in any respect under any applicable law, the validity,
legality and enforceability of the remaining provisions shall not be affected or
impaired thereby.
17.8 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
----------------------
shall inure to the benefit of the parties hereto and their respective successors
and assigns; provided, however, that this Agreement shall not be assignable by
-------- -------
either party hereto without the written consent of the other party. Any
purported assignment in violation of this Section 17.8 shall be void.
17.9 HEADINGS. The headings of sections in this Agreement are for
--------
convenience of reference only and shall not affect the meaning or construction
of any provision of this Agreement.
-34-
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed in its name and on its behalf by its representative thereunto duly
authorized, all as of the day and year first above written.
LARGE CAP VALUE PORTFOLIO - CUSTODIAL TRUST COMPANY
THE BEAR XXXXXXX FUNDS
By /s/ Xxxxx X. Xxxxxxx By /s/ Xxxxxx X. Xxxxxx
----------------------- -----------------------
Authorized Officer Authorized Officer
-35-
EXHIBIT A
---------
AUTHORIZED PERSONS WITH ACCESS TO INVESTMENTS/*/
Set forth below are the names of the persons, whose specimen signatures are
on file with the Custodian, authorized by the Board of Trustees of The Bear
Xxxxxxx Funds to have access to the Large Cap Portfolio's (the "Fund")
investments.
Name
----
Xxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Xxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxx
_____________________
/*/Nothing herein shall prohibit any person designated as an Authorized Person
from giving Oral Instructions or Written Instructions to the Custodian, so long
as it does not result in delivery of or access to securities and similar
investments of the Fund by such person.
EXHIBIT B
---------
INVESTMENT ADVISERS
Bear Xxxxxxx Funds Management Inc.
EXHIBIT C
---------
CUSTODY FEES AND TRANSACTION CHARGES
DOMESTIC FEES. The Fund shall pay Custodian the following fees and charges
-------------
for assets in the United States ("Domestic Assets") and transactions in the
United States, all such fees and charges to be payable monthly:
(1) an annual fee of the greater of 0.015% (one and one-half basis points)
per annum of the value of the Domestic Assets in the Custody Account or $5,000,
such fee to be payable monthly based upon the total market value of such
Domestic Assets as determined on the last Business Day of the month for which
such fee is charged;
(2) a transaction charge of $18 for each buy, sell or redemption
transaction executed in the Custody Account with respect to such Domestic Assets
as are book-entry Securities (but not for any such buy or sell in a repurchase
transaction representing a cash sweep investment for the Fund's account or the
investment by the Fund of collateral for a loan of Securities);
(3) a transaction charge of $50 for each receipt or delivery into or from
the Custody Account of such Domestic Assets as are Securities in physical form;
(4) a transaction charge for each repurchase transaction in the Custody
Account which represents a cash sweep investment for the Fund's account,
computed at a rate of 0.10% (ten basis points) per annum on the amount of the
purchase price paid or received by the Fund in such repurchase transaction;
(5) a charge of $10 for each funds transfer; and
(6) a service charge for each holding of Domestic Assets consisting of
Securities or other property sold by way of private placement or in such other
manner as to require services by Custodian which in the reasonable judgment of
Custodian are materially in excess of those ordinarily required for the holding
of publicly traded Securities in the United States.
INTERNATIONAL FEES. The Fund shall pay Custodian fees for assets outside
------------------
the United States ("Foreign Assets") and transaction charges and other charges
(including, without limitation, charges for funds transfers, tax reclaims, and
foreign exchange services) outside the United States, all such fees and charges
to be payable monthly, according to a schedule of such fees and charges specific
to each country in which Foreign Assets are held, such schedule to be provided
from time to time upon request.
Fees shall be based upon the total market value of the applicable Foreign
Assets as determined on the last Business Day of the month for which such fees
are charged.
EXHIBIT D
---------
APPROVED FOREIGN SUB-CUSTODIANS
Foreign Sub-custodian Country(ies) Securities Depositories
--------------------- ------------ -----------------------
(See Attached)
CITIBANK, N.A.
SEC RULE 17F-5 INFORMATION PACKAGE
AUGUST 1994
SECTION 2: OVERVIEW OF FOREIGN SUBCUSTODIANS & DEPOSITORIES
SECTION 2:
OVERVIEW OF CITIBANK'S
FOREIGN SUBCUSTODIAN AND
DEPOSITORY ARRANGEMENTS
Colombia: Cititrust Colombia X.X.
Xxxxxxx 0X, Xx. 00-00,
Xxxxxx, Xxxxxxxx
2-01.0 SUBCUSTODIAN NETWORK
Argentina: Citibank, N.A. (Argentina) Denmark: Den Danske Bank
Xxxxxxxxx Xxxxx 502/30 0-00 Xxxxxxx Xxxxx
0000 Xxxxxx Xxxxx, Xxxxxxxxx DK-1092 Copenhagen K.
Denmark
Australia: Citicorp Nominees Pty. Ltd. Finland: Kansallis-Osake-Pankki
000 Xxxxxxx Xxxxxx Xxxxxxxxxxxxxxxx 00
Xxxxxxxxx, XXX 0000 Xxxxxxxxx 00000 Xxxxxxxx, Finland
Austria: Citibank (Austria) A.G. France: Citibank S.A. (France)
Postfach 90 Cedex 36
Xxxxxxxxxxxxxxxxx 0 00000 Xxxxx la Defense, France
X-0000 Xxxxxx, Xxxxxxx
Banque Paribas
Belgium: Generale Bank 0 Xxx X'Xxxxx
Xxxxxxxx xx Xxxx 0 00000 Xxxxx, Xxxxxx
0000 Xxxxxxxx, Xxxxxxx
Brazil: Citibank, N.A. (Brazil) Germany: Citibank Aktiengesellschaft
Avenida Paulista 1111 Xxxx Xxxxxxx Xxx. 00,
Xxx Xxxxx, Xxxxxx 00000, Frankfurt/Main,
Germany
Canada: Citibank Canada Greece: Citibank, N.A. (Greece)
000 Xxxxx Xxxxxx Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx Othonos 8
M5J2M3, Canada Xxxxxx 00000, Xxxxxx
Chile: Citibank, N.A. (Chile) Hong Kong: Citibank, N.A. (Hong Kong)
Xxxxxxx 00 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxx Xxxxxxxx Xxxxx
0 Xxxxxx Xxxx
Xxxxxxx, Xxxx Xxxx
Xxxxx: Citibank, N.A. (Hong Kong) Hungary: Citibank Budapest Xx.
x/x Xxxxxxxx, X.X., 0000 Xxxxxxxx X00-00.
Hong Kong, Citicorp Tower, Vaci Utca
Xxxxxxxx Xxxxx, 0 Xxxxxx Xxxx, Xxxxxxx
Xxxxxxx, Xxxx Xxxx
Xxxxx: Citibank, N.A. (India) New Zealand: Citibank Nominees (New
Sakhar Bhavan Zealand) Ltd.
230 Backbay Reclamation 00 Xxxxxxx Xxxxxx Xxxx
Xxxxxxx Xxxxx Xxxxxxxx 0, Xxx Xxxxxxx
Bombay 400 021
Indonesia: Citibank, N.A. (Jakarta)
Xxxxx Xxxx. Xxxxxxxx Xx. 0 Xxxxxx: Xxxxxxxxxxx Xxxx
Xxxxxxx 00000, Xxxxxxxxx X.X. Xxx 0000 Xxxxxxx
0000 Xxxx 0, Xxxxxx
Xxxxxxx: Citibank, N.A. (Ireland)
IFSC House, Custom House Pakistan: Citibank, N.A. (Pakistan)
Quay, Xxxxxx 0 X.X. Xxx 0000
Xxxxxxx 00 Xxxxxxxxxx Xxxx
Xxxxxxx 00000
Xxxxx: Citibank, N.A. (Italy) Pakistan
Foro Buonaparte N. 00
Xxxxxxx Xxxxxxx 00000
00000 Xxxxx, Xxxxx
Japan: Citibank, N.A. (Japan) Peru: Citibank, N.A. (Lima)
Citicorp Center, Xx. Xxxxxx Xxxx 000,
0-000 Xxxxxxx Xxxxxxxxx, Torre Real 5t 0 Xxxx,
Xxxxxxxxx - xx, Xxxx 00
Xxxxx, Xxxxx Xxxx
Jordan: Citibank, N.A. (Jordan) Philippines: Citibank, N.A. (Philippines)
0xx Xxxxxx Xxxxxxxx Xxxxxx
Jordan Insurance Building 8741 Paseo de Roxas
Xxxxxx Xxxxxxxx Street Makati Metro
Amman, Jordan Manila, Philippines
Korea: Citibank, N.A. (Korea) Poland: Citibank Poland S.A.
89-29 Shinmun-Ro, Sentorska 12,
Chongro-ku 00-000 Xxxxxx,
Xxxxx, Xxxxx Poland
Luxembourg: Cedel S.A. Portugal: Citibank Portugal S.A.
00 Xxxxxxxxx Xxx Xxxxx, Xxxxxxxxx 00,
Xxxxxx-Xxxxxxxx Xxxxxxxxx 0xx xxxxx, 0000 Xxxxxx,
X-0000, Xxxxxxxxxx Xxxxxxxx
Malaysia: Citibank Berhad Puerto Rico: Citibank, N.A.
28-30 Medan Pasar 000 Xxxxx Xx Xxxx Xxxxxx
00000 Xxxxx Xxxxxx, Xxxxxxxx Xxx Xxxx, Xxxxxx Xxxx 00000
Xxxxxx: Citibank, N.A. (Mexico) Singapore: Citibank, N.A. (Singapore)
Paseo de la Reforma 000 XXX Xxxxxxxx #00-00
Xxxxxx Xxxx XX, 00000 Xxxxxx 0 Xxxxxxx Xxx
Xxxxxxxxx 0106
Netherlands: Citibank, N.A. (Netherlands)
"Europlaza", South Africa: First National Bank
Xxxxxxxxxxxxx 00 X, Xxxxxxxxx xxxxx,
0000 BE Amsterdam z.o., 0 Xxxxx Xxxxx,
Xxx Xxxxxxxxxxx Post Xxx 0000
Xxxxxxxxxxxx, 0000
Xxxxx Xxxxxx
Spain: Citibank, N.A. (Spain)
Xxxx Xxxxxx Y Xxxxxx 00
00000 Xxxxxx, Xxxxx
Sri Lanka: Citibank, N.A. (Sri Lanka)
67 Dharmapala Mawatha
X.X. Xxx 000
Xxxxxxx 0, Xxx Xxxxx
Xxxxxx: Skandinaviska Enskilda Banken
Xxxxxxx Xxxx 0
Xxxxxxxxx, Xxxxxx
Xxxxxxxxxxx: Citibank (Switzerland)
Xxxxxxxxxxxxx 00,
Xxxx Xxxxxx Xxx 00
0000 Xxxxxx, Xxxxxxxxxxx
Taiwan: Citibank, N.A. (Taiwan)
Taipei Branch
Xx. 00 Xxxx Xxxxx Xxxx Xxxx
Xxx. 0
Xxxxxx, Xxxxxx
Xxxxxxxx: Citibank, N.A. (Thailand)
000 Xxxxx Xxxxxx Xxxx
Xxxxxxx 00000, Xxxxxxxx
Turkey: Citibank, N.A. (Turkey)
Buyukedere Caddesi,
Xx. 000, Xxxxxxxx 00000
Xxxxxxxx, Xxxxxx
Xxxxxx Xxxxxxx: Citibank, N.A.
00 Xxxxxxxxxx Xx,
Xxxxxxxx, Xxxxxx XX 00 0XX
Xxxxxx Xxxxxxx
The First National Bank of
Chicago
00 Xxxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX, Xxxxxxx
Uruguay: Citibank, N.A. (Uruguay)
Xxxxxxx 000
X.X. Xxx 000
Xxxxxxxxxx
Xxxxxxx
Venezuela: Citibank, N.A. (Caracas)
Carmelitas a Xxxxxxxxxx
Xxxxxxxx Xxxxxxxx
Xxxxxxx 0000, Xxxxxxxxx
2-01.1 STATUS AND SHAREHOLDERS' EQUITY
COUNTRY SUBCUSTODIAN STATUS SHAREHOLDERS'
EQUITY
Argentina Citibank, N.A. Branch NA
Australia Citicorp Nominees Pty. Ltd. Subsidiary SEC Exemption
Austria Citibank (Austria) A.G. Subsidiary SEC Exemption
Belgium Generale Bank Correspondent US$ 2,260 MM
Brazil Citibank, N.A. Branch NA
Canada Citibank Canada Subsidiary US$ 299.9 MM
Chile Citibank, N.A. Branch NA
China Citibank, N.A. Branch NA
Colombia Cititrust Colombia S.A. Subsidiary SEC Exemption
Sociedad Fiduciary
Denmark Den Danske Bank Correspondent US$ 2,975 MM
Finland Kansallis-Osake-Pankki Correspondent US$ 1,325 MM
France Citibank S.A. Subsidiary SEC Exemption
France Banque Paribas Correspondent US$ 2,998 MM
Germany Citibank Aktiengesellschaft Subsidiary US$ 298 MM
Greece Citibank, N.A. Branch NA
Hong Kong Citibank, N.A. Branch NA
Hungary Citibank Budapest Rt. Subsidiary SEC Exemption
India Citibank, N.A. Branch NA
Indonesia Citibank, N.A. Branch NA
Ireland Citibank, N.A. Branch NA
Italy Citibank, N.A. Branch NA
Japan Citibank, N.A. Branch XX
Xxxxxx Citibank, N.A. Branch NA
Korea Citibank, N.A. Branch NA
Luxembourg Cedel S.A. Depository NA
Malaysia Citibank Berhad Subsidiary US$ 145MM
Mexico Citibank, N.A. Branch NA
Netherlands Citibank, N.A. Branch NA
New Zealand Citibank Nominees (NZ) Ltd. Subsidiary SEC Exemption
Norway Christiania Bank Correspondent US$ 512MM
Pakistan Citibank, N.A. Branch NA
Peru Citibank, N.A. Branch NA
Philippines Citibank, N.A. Branch NA
Poland Citibank Poland S.A. Subsidiary SEC Exemption
Portugal Citibank Portugal S.A. Subsidiary SEC Exemption
Singapore Citibank, N.A. Branch NA
South Africa First National Bank of Southern Africa Ltd. Correspondent US$ 620MM
Spain Citibank, N.A. Branch NA
Sri Lanka Citibank, N.A. Branch NA
Sweden Skandinaviska Enskilda Banken Correspondent US$ 669MM
Switzerland Citibank (Switzerland) Affiliate US$ 198MM
Taiwan Citibank, N.A. Branch NA
Thailand Citibank, N.A. Branch NA
Turkey Citibank, N.A. Branch NA
U.K. Citibank, N.A. Branch NA
Uruguay Citibank, N.A. Branch NA
Venezuela Citibank, N.A. Branch NA
2-02.0 DEPOSITORIES
Argentina: Caja de Valores ("CDV") Finland: Central Share Registry
The Helsinki Money Market Center
Australia: The Reserve Bank Information France: Societe Interprofessionnelle
and Transfer System ("RITS") pour la Compensation de
Valeurs Mobilieres
Austraclear ("SICOVAM")
Austria: Wertpapiersammelbank Banque de France
bei der Oesterreichische
Kontrollbank ("OEKB/WSB") Germany: Deutscher Kassenverein A.G.
("DKV")
Belgium: Caisse Interprofessionelle
de Depots et de Virements Greece: Central Securities Depository,
de Titres S.A. ("CIK") S.A. ("CSD")
Banque Nationale Hong Kong: Central Clearing and
de Belgique ("BNB") Settlement System
("CCASS")
Brazil: BOVESPA's Registered
Shares Fungible Custody Hungary: The Central Depository and
("BOVESPA") Clearing House ("CDCH")
Canada: The Canadian Depository for Ireland: Gilt Settlement Office ("GSO")
Securities Limited ("CDS")
Italy: Monte Titoli Instituto per la
China: The Shanghai Securities Custodia e l'Amministrazione
Central Clearing and Accentrata di Valori Mibiliar
Registration Corporation ("Monte Titoli")
("SSCCRC")
The Bank of Italy
The Shenzhen Securities
Registrars Co. Ltd. - registrar Japan: Japan Securities Depository
for three banks forming a Center ("JASDEC")
decentralized depository
structure The Bank of Japan ("BOJ")
Denmark: Vaerdipapircentralen ("VP") Korea: The Korea Securities
Depository ("KSD")
Luxembourg: CEDEL, S.A.
Malaysia: Malaysian Central
Depository Sdn. Bhd.
("MCD")
Mexico: Instituto para el Deposito de
Valores ("S.D. Indeval")
Netherlands: Nederlands Centraal Instituut
voor Giraal Effectenverkeer
B.V. ("Necigef")
New Zealand: Austraclear
Norway: The Norwegian Registry of
Securities -
Verdipapirsentralen ("VPS")
Peru: Caja de Valores ("CAVAL")
Poland: The National Depository of Securities
(Krajowy Depozyt Papierow Wartosciowych)
Portugal: Central de Registo e Valores Mobiliarios
Singapore: Central Depository (PTE) Ltd.
South Africa: The Central Depository (Pty) Ltd.
Spain: Xxxxxxx xx Xxxxxxxxxxxx x
Xxxxxxxxxxx xx Xxxxxxx ("XXXX")
Xxx Xxxxx: Central Depository System (Pvt) Limited
Sweden: Vardepapperscentralen VPC AB ("VPC")
Switzerland: Schwerzerische Effekten-Giro AG ("SEGA")
Taiwan: Taiwan Securities Central
Depository Co., Ltd. ("TSCD")
Thailand: Share Depository Center ("SDC")
Turkey: Istanbul Stock Exchange Settlement
and Custody Company Inc.
United Kingdom: Central Gilts Office ("CGO")
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK
GLOBAL CUSTODY NETWORK
START DEPOSITORY IN ADDITION TO THE CENTRAL BANK,
COUNTRY DATE SUBCUSTODIAN IF APPLICABLE.
Argentina 1991 Xxxxxx Guaranty Trust Co. of Caja de Valores
N.Y. - Buenos Aires
Office
Xxxxxxxxx 0000 ANZ Banking Group Austraclear
Austria 1988 Creditanstalt-Bankverein OeKB-WSB (Wertpapiersammelbank bei der
Oesterreichischen
Kontrollbank AG)
Belgium 1977 Xxxxxx Guaranty Trust Co. of CIK (Caisse Interprofessionnelle de
N.Y. - Brussels Office Depots et de Virements de Titres)
Euroclear Clearance
System Limited
Brazil 1991 Xxxxxx Guaranty Trust Co. of BOVESPA (Bolsa de Valores de Sao Paolo;
N.Y. - Sao Paulo Office equities)
BVRJ (Bolsa de Valores
de Rio de Janeiro,
equities)
CETIP (Central de
Custodia e Liquidacao
Financeira de Titulos;
corporate bonds)
SELEC (Sistema Especial
de Liquidacao e
Custodia; gov't
securities)
Canada 1978 Canadian Imperial Bank of CDS (Canadian Depository for
Securities) Commerce
Xxxxx 0000 Xxxxxxxx, N.A.
People's Republic 1992 Hongkong and Shanghai Banking
of China- Corporation
Shanghai and
Shenzhen
Xxxxx Xxxxxxxx 0000 Xxxxxxxxxxxxxx Obchodni Banka, A.S.
Denmark 1985 Den Danske Bank VP (Vaerdipapircentralen; Danish
Securities Centre)
Finland 1985 Union Bank of Finland
France 1977 Xxxxxx Guaranty Trust Co. of SICOVAM (Societe Interprofessionnelle Pour La
N.Y. - Paris Office Compensation des Valeurs Mobilieres)
Germany 1977 Xxxxxx Guaranty Trust Co. of DKV (Deutscher Kassenverein)
N.Y. - Frankfurt Office
Greece 1989 National Bank of Greece S.A.
Hong Kong 1978 Hongkong and Shanghai Banking CCASS (Central Clearing and Settlement
Corporation System)
Xxxxxxx 0000 Xxxxxxxx N.A.
India 1993 Hongkong and Shanghai Banking
Corporation
Indonesia 1990 Hongkong and Shanghai Banking
Corporation
Ireland 1988 Allied Irish Banks PLC
Israel 1994 Bank Leumi LE TASE (Tel Aviv Stock Exchange)
Clearing House Ltd.
Italy 1977 Xxxxxx Guaranty Trust Co. of N.Y. Monte Titoli S.p.A.
Milan Office
Japan 1977 The Fuji Bank, Limited JASDEC (Japan Securities Depository Center)
JSA (Japan Securities Agent)
Jordan 1994 Citibank, N.A.
Korea 1991 Bank of Seoul KSSC (Korea Securities Settlement
Corporation)
Luxembourg 1992 Banque Internationale A CEDEL (Centrale de Livraison des Valeurs
Luxembourg, S.A. Mobilieres)
Malaysia 1987 Hongkong and Shanghai Banking SCANS (Securities Clearing Automated
Corporation Network Services)
Xxxxxx 0000 Xxxxxxxx, N.A. Indeval
Morocco 1994 Banque Xxxxxxxxxxx xx Xxxxx
Xxxxxxxxxxx 0000 Bank Labouchere nv NECIGEF (Nederlands Centraal Instituut Voor
Giraal Effectenverkeer BV)
New Zealand 1982 ANZ Banking Group Ltd.
Norway 1978 Den Norske Bank VPS (Verdipapirsentralen; Norwegian
Registry of Securities)
Pakistan 1994 Citibank, N.A.
Xxxx 0000 Xxxxxxxx, N.A. CAVAL (Caja de Valores)
Philippines 1990 Hongkong and Shanghai Banking
Corporation
Poland 1993 Bank Handlowy
Portugal 0000 Xxxxx Xxxxxxxx Xxxxx X
Xxxxxxxxx xx Xxxxxx
Xxxxxxxxx 1988 Development Bank of Singapore (CDP) Xxxxxxx Xxxxxxxxxx Xxx
Xxxxx Xxxxxx 0000 First National Bank of Southern
Africa
Spain 1977 Xxxxxx Guaranty Trust Co. of
N.Y. - Madrid Office
Sri Lanka 1992 Hongkong and Shanghai Banking
Corporation
Sweden 1985 Skandinaviska Enskilda Banken VPC (Vaerdepappercentralen; Securities
Register Centre)
Switzerland 1977 Bank Leu SEGA (Schweizerische Effekten - Giro
AG)
Taiwan 1992 Hongkong and Shanghai Banking
Corporation
Thailand 1988 Hongkong and Shanghai Banking
Corporation
Turkey 1990 Citibank, N.A. Istanbul Stock Exchange Settlement and
Ottoman Bank Custody Company, Inc. (I.M.K.B. Takas ve
Saklama A.S.)
United Kingdom 1977 Xxxxxx Guaranty Trust Co. of N.Y. TALISMAN (Transfer, Accounting and
London Office Lodgement for Investors, Stock Management
for Jobbers)
CGO (Central Gilts Office)
CMS (Central Money Market Office)
United States of 1977 Xxxxxx Guaranty Trust Co. of The Federal Reserve Bank of New York
America N.Y. The Depository Trust Co.
The Participants Trust Co.
Venezuela 1991 Citibank, N.A.
EXHIBIT (8)
CUSTODY AGREEMENT
This AGREEMENT, dated as of February 22, 1995, by and between SMALL CAP
VALUE PORTFOLIO (the "Fund"), a portfolio of The Bear Xxxxxxx Funds (the
"Company"), an unincorporated business trust organized under the laws of the
Commonwealth of Massachusetts, and CUSTODIAL TRUST COMPANY, a bank organized and
existing under the laws of the State of New Jersey (the "Custodian").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Fund desires that its Securities, cash and other assets be
held and administered by Custodian pursuant to this Agreement;
WHEREAS, the Fund is an investment portfolio represented by a series of
Shares constituting part of the capital stock of the Company, an open-end
management investment company registered under the 1940 Act (as hereinafter
defined);
WHEREAS, Custodian represents that it is a bank having the qualifications
prescribed in Section 26(a)(i) of the 1940 Act;
NOW, THEREFORE, in consideration of the mutual agreements herein made, the
Fund and Custodian hereby agree as follows:
ARTICLE I
DEFINITIONS
-----------
Whenever used in this Agreement, the following terms, unless the context
otherwise requires, shall mean:
1.1 "AUTHORIZED PERSON" means any Officer or other person duly authorized
-----------------
by resolution of the Board of Directors to give Oral Instructions and Written
Instructions on behalf of the Fund and identified, by name or by office, in
Exhibit A hereto or any person duly designated to do so by an investment adviser
of the Fund specified by the Fund in Exhibit B hereto.
1.2 "BOARD OF DIRECTORS" means the Board of Trustees of the Fund or, when
------------------
permitted under the 1940 Act, the Executive Committee thereof, if any.
1.3 "BOOK-ENTRY SYSTEM" means a book-entry system maintained by a Federal
-----------------
Reserve bank as provided for in Subpart O of Treasury Circular Xx. 000, 00 XXX
306, in Subpart B of 31 CFR Part 350, or in such other book-entry regulations of
federal agencies as are substantially in the form of such Subpart O.
1.4 "BUSINESS DAY" means any day recognized as a settlement day by The
------------
New York Stock Exchange, Inc. and on which banks in the State of New Jersey are
open for business.
1.5 "CUSTODY ACCOUNT" means the account in the name of the Fund, which is
---------------
provided for in Section 3.2 below.
1.6 "ELIGIBLE FOREIGN CUSTODIAN" means any banking institution, trust
--------------------------
company or other entity organized under the laws of a country other than the
United States which is eligible under Rule 17f-5 under the 1940 Act to act as a
sub-custodian for Foreign Securities and other assets of the Fund held outside
the United States.
1.7 "FOREIGN SECURITIES" means Securities as defined in paragraph (c)(1)
------------------
of Rule 17f-5 under the 1940 Act.
-2-
1.8 "FOREIGN SECURITIES DEPOSITORY" means a securities depository or
-----------------------------
clearing agency as defined in subparagraphs (c)(2)(iii) or (iv) of Rule 17f-5
under the 0000 Xxx.
1.9 "1940 ACT" means the Investment Company Act of 1940, as amended.
--------
1.10 "OFFICER" means the President, any Vice President, the Secretary, any
-------
Assistant Secretary, the Treasurer, or any Assistant Treasurer of the Fund.
1.11 "ORAL INSTRUCTIONS" means instructions orally transmitted to and
-----------------
accepted by Custodian which are (a) reasonably believed by Custodian to have
been given by an Authorized Person, (b) recorded and kept among the records of
Custodian made in the ordinary course of business, and (c) orally confirmed by
Custodian.
1.12 "PROPER INSTRUCTIONS" means Oral Instructions or Written
-------------------
Instructions. Proper Instructions may be continuing Written Instructions when
deemed appropriate by both parties.
1.13 "SECURITIES" includes, without limitation, common and preferred
----------
stocks, bonds, call options, put options, debentures, notes, bank certificates
of deposit, forward contracts, futures contracts (including those related to
indexes), options on futures contracts or indexes, bankers' acceptances,
mortgage-backed securities or other obligations, and any certificates, receipts,
warrants or other instruments or documents representing rights to receive,
purchase or subscribe for the same, or evidencing or representing any other
rights or interests therein, or any similar property or assets that Custodian
has the facilities to clear and to service.
1.14 "SECURITIES DEPOSITORY" means The Depository Trust Company and
---------------------
(provided that Custodian has received a copy of a
-3-
resolution of the Board of Directors of the Fund, certified by an Officer,
specifically approving the use thereof as a depository for the Fund) any other
clearing agency registered with the Securities and Exchange Commission under
Section 17A of the Securities Exchange Act of 1934 (the "1934 Act"), which acts
as a system for the central handling and deposit of Securities where all
Securities of any particular class or series of an issuer deposited within the
system are treated as fungible and may be transferred or pledged by bookkeeping
entry without physical delivery of the Securities.
1.15 "SHARES" means the shares into which the capital stock of the Fund is
------
divided.
1.16 "WRITTEN INSTRUCTIONS" means (a) written communications received by
--------------------
Custodian and signed by two persons reasonably believed by Custodian to be
Authorized Persons, or (b) communications by telex or any other such system from
two persons reasonably believed by Custodian to be Authorized Persons, or (c)
communications between electro-mechanical or electronic devices.
ARTICLE II
APPOINTMENT OF CUSTODIAN
------------------------
2.1 APPOINTMENT. The Fund hereby appoints Custodian as custodian of all
-----------
such Securities, cash and other assets as may be acceptable to Custodian and
from time to time delivered to it by the Fund or others for the account of the
Fund.
2.2 ACCEPTANCE. Custodian hereby accepts appointment as such custodian
----------
and agrees to perform the duties thereof as hereinafter set forth.
-4-
ARTICLE III
CUSTODY OF CASH AND SECURITIES
------------------------------
3.1 SEGREGATION. All Securities and non-cash property of the Fund in the
-----------
possession of Custodian (other than Securities maintained by Custodian in a
Securities Depository or Book-Entry System) shall be physically segregated from
other Securities and non-cash property in the possession of Custodian and shall
be identified as belonging to the Fund.
3.2 CUSTODY ACCOUNT. (a) Custodian shall open and maintain in its trust
---------------
department a custody account in the name of the Fund, subject only to draft or
order of Custodian, in which Custodian shall enter and carry all Securities,
cash and other assets of the Fund which are delivered to Custodian and accepted
by it. Custodian shall not be under any duty or obligation to require the Fund
to deliver to it any Securities or funds owned by the Fund and shall have no
responsibility or liability for or on account of Securities or funds not so
delivered.
(b) If Custodian at any time fails to receive any of the documents
referred to in Section 3.5(a) below, then, until such time as it receives such
document, it shall not be obligated to receive any Securities of the Fund into
the Custody Account and shall be entitled to return to the Fund any Securities
of the Fund that it is holding.
(c) Custodian may, but shall not be obligated to, hold Securities
that may be held only in physical form.
(d) Custodian is authorized to disclose the name, address and
securities positions of the Fund to the issuers of such securities when
requested by them to do so.
-5-
3.3 APPOINTMENT OF AGENTS. (a) Custodian may employ suitable agents,
---------------------
which may include affiliates of Custodian, such as Bear, Xxxxxxx & Co. Inc. or
Bear, Xxxxxxx Securities Corp., both of which are registered broker-dealers.
The appointment of any agent pursuant to this Section 3.3(a) shall not relieve
Custodian of any of its obligations or liabilities under this Agreement.
However, no Book-Entry System, Securities Depository, Foreign Securities
Depository or other securities depository or clearing agency (whether foreign or
domestic) which it is or may become standard market practice to use for the
comparison and settlement of trades in securities shall be an agent or sub-
contractor of Custodian for purposes of this Section 3.3(a) or otherwise.
(b) In its discretion, Custodian may appoint, and at any time remove,
any domestic bank or trust company which is qualified to act as a custodian
under the 1940 Act as sub-custodian to hold Securities and cash of the Fund and
to carry out such other provisions of this Agreement as it may determine, and
may also open and maintain one or more banking accounts with such a bank or
trust company (any such accounts to be in the name of Custodian and subject only
to its draft or order), provided, however, that the appointment of any such
agent or opening and maintenance of any such accounts shall be at Custodian's
expense and shall not relieve Custodian of any of its obligations or liabilities
under this Agreement.
(c) Upon receipt of Written Instructions to do so and at the Fund's
expense, Custodian shall appoint as sub-custodian such domestic bank or trust
company as is named therein, provided that (i) such bank or trust company is
qualified to act as a custodian under the 1940 Act, and (ii) notwithstanding
anything to the contrary in Section 7.1 below or elsewhere in this Agreement,
Custodian shall have no greater liability to the Fund for the actions or
omissions of any such sub-custodian than any such sub-custodian has to
Custodian, and Custodian shall not be required
-6-
to discharge any such liability which may be imposed on it unless and until such
sub-custodian has effectively indemnified Custodian against it or has otherwise
discharged its liability to Custodian in full.
3.4 DELIVERY OF ASSETS TO CUSTODIAN. The Fund shall deliver to Custodian
-------------------------------
the Fund's Securities, cash and other assets, which are acceptable to Custodian,
including (a) payments of income, payments of principal and capital
distributions received by the Fund with respect to such Securities, cash or
other assets owned by the Fund at any time during the term of this Agreement,
and (b) cash received by the Fund for the issuance, at any time during such
term, of Shares. Custodian shall not be responsible for such Securities, cash
or other assets until actually received by it.
3.5 SECURITIES DEPOSITORIES AND BOOK-ENTRY SYSTEMS. Custodian may
----------------------------------------------
deposit and/or maintain Securities of the Fund in a Securities Depository or in
a Book-Entry System, subject to the following provisions:
(a) Prior to a deposit of Securities of the Fund in any Securities
Depository or Book-Entry System, the Fund shall deliver to Custodian a
resolution of the Board of Directors of the Fund, certified by an Officer,
authorizing and instructing Custodian (and any sub-custodian appointed pursuant
to Section 3.3 above) on an on-going basis to deposit in such Securities
Depository or Book-Entry System all Securities eligible for deposit therein and
to make use of such Securities Depository or Book-Entry System to the extent
possible and practical in connection with its performance hereunder (or under
the applicable sub-custody agreement in the case of such sub-custodian),
including, without limitation, in connection with settlements of purchases and
sales of Securities, loans of Securities, and deliveries and returns of
collateral consisting of Securities.
-7-
(b) Securities of the Fund kept in a Book-Entry System or Securities
Depository shall be kept in an account ("Depository Account") of Custodian in
such Book-Entry System or Securities Depository which includes only assets held
by Custodian as a fiduciary, custodian or otherwise for customers.
(c) The records of Custodian with respect to Securities of the Fund
maintained in a Book-Entry System or Securities Depository shall at all times
identify such Securities as belonging to the Fund.
(d) If Securities purchased by the Fund are to be held in a Book-Entry
System or Securities Depository, Custodian shall pay for such Securities upon
(i) receipt of advice from the Book-Entry System or Securities Depository that
such Securities have been transferred to the Depository Account, and (ii) the
making of an entry on the records of Custodian to reflect such payment and
transfer for the account of the Fund. If Securities sold by the Fund are held
in a Book-Entry System or Securities Depository, Custodian shall transfer such
Securities upon (i) receipt of advice from the Book-Entry System or Securities
Depository that payment for such Securities has been transferred to the
Depository Account, and (ii) the making of an entry on the records of Custodian
to reflect such transfer and payment for the account of the Fund.
(e) Custodian shall provide the Fund with copies of any report
obtained by Custodian from a Book-Entry System or Securities Depository in which
Securities of the Fund are kept on the internal accounting controls and
procedures for safeguarding Securities deposited in such Book-Entry System or
Securities Depository.
(f) At its election, the Fund shall be subrogated to the rights of
Custodian with respect to any claim against a Book-Entry System or Securities
Depository or any other person for any loss or
-8-
damage to the Fund arising from the use of such Book-Entry System or Securities
Depository, if and to the extent that the Fund has not been made whole for any
such loss or damage.
3.6 DISBURSEMENT OF MONEYS FROM THE CUSTODY ACCOUNT. Upon receipt of
-----------------------------------------------
Proper Instructions, Custodian shall disburse moneys from the Custody Account,
but only in the following cases:
(a) For the purchase of Securities for the Fund but only (i) in the
case of Securities (other than options on Securities, futures contracts and
options on futures contracts), against the delivery to Custodian (or any sub-
custodian appointed pursuant to Section 3.3 above) of such Securities registered
as provided in Section 3.9 below or in proper form for transfer or, if the
purchase of such Securities is effected through a Book-Entry System or
Securities Depository, in accordance with the conditions set forth in Section
3.5 above; (ii) in the case of options on Securities, against delivery to
Custodian (or such sub-custodian) of such receipts as are required by the
customs prevailing among dealers in such options; (iii) in the case of futures
contracts and options on futures contracts, against delivery to Custodian (or
such sub-custodian) of evidence of title thereto in favor of the Fund, the
Custodian, any such sub-custodian or any nominee referred to in Section 3.9
below; and (iv) in the case of repurchase or reverse repurchase agreements
entered into by the Fund, against delivery of the purchased Securities either in
certificate form or through an entry crediting Custodian's account at a Book-
Entry System or Securities Depository with such Securities;
(b) In connection with the conversion, exchange or surrender, as set
forth in Section 3.7(f) below, of Securities owned by the Fund;
(c) For the payment of any dividends or capital gain distributions
declared by the Fund;
-9-
(d) In payment of the redemption price of Shares as provided in
Article VI below;
(e) For the payment of any expense or liability incurred by the Fund,
including but not limited to the following payments for the account of the Fund:
interest, taxes, administration, investment management, investment advisory,
accounting, auditing, transfer agent, custodian, trustee and legal fees; and
other operating expenses of the Fund; in all cases, whether or not such expenses
are to be in whole or in part capitalized or treated as deferred expenses;
(f) For transfer in accordance with the provisions of any agreement
among the Fund, Custodian and a broker-dealer, relating to compliance with rules
of The Options Clearing Corporation and of any registered national securities
exchange (or of any similar organization or organizations) regarding escrow or
other arrangements in connection with transactions by the Fund;
(g) For transfer in accordance with the provisions of any agreement
among the Fund, Custodian, and a futures commission merchant, relating to
compliance with the rules of the Commodity Futures Trading Commission and/or any
contract market (or any similar organization or organizations) regarding account
deposits in connection with transactions by the Fund;
(h) For the funding of any uncertificated time deposit or other
interest-bearing account with any banking institution (including Custodian), but
only if the payment instructions to Custodian detail specific Securities to be
acquired;
(i) For the purchase from a bank or other financial institution of
loan participations, but only if Custodian has in its possession a copy of the
agreement between the Fund and such bank or other financial institution with
respect to the purchase of
-10-
such loan participations and the payment instructions to Custodian detail
specific assets to be acquired;
(j) For the purchase and sale of foreign currencies or options to
purchase and sell foreign currencies for spot and future delivery on behalf and
for the account of the Fund pursuant to contracts with such banks and other
financial institutions, including Custodian, any sub-custodian and any affiliate
of Custodian, as principal, as are approved and authorized by the Fund, but only
if the payment instructions to Custodian detail specific assets to be acquired;
(k) For transfer to a broker-dealer registered under the 1934 Act or
in accordance with the provisions of any agreement among the Fund, Custodian and
such a broker-dealer as margin for a short sale of Securities;
(l) For the payment of the amounts of dividends received with respect
to Securities sold short; and
(m) For any other proper purpose, but only upon receipt, in addition
to Proper Instructions, of a copy of a resolution of the Board of Directors,
certified by an Officer, specifying the amount and purpose of such payment,
declaring such purpose to be a proper purpose of the Fund, and naming the person
or persons to whom such payment is to be made.
3.7 DELIVERY OF SECURITIES FROM THE CUSTODY ACCOUNT. Upon receipt of
-----------------------------------------------
Proper Instructions, Custodian shall release and deliver Securities of the Fund
from the Custody Account but only in the following cases:
(a) Upon the sale of Securities for the account of the Fund but,
subject to Section 5.3 below, only against receipt of
-11-
payment therefor in cash, by certified or cashiers' check or bank credit;
(b) In the case of a sale effected through a Book-Entry System or
Securities Depository, in accordance with the provisions of Section 3.5 above;
(c) To an offeror's depository agent in connection with tender or
other similar offers for Securities of the Fund; provided that, in any such
case, the cash or other consideration is to be delivered to Custodian;
(d) To the issuer thereof or its agent (i) for transfer into the name
of the Fund or any of the nominees referred to in Section 3.9 below, or (ii) for
exchange for a different number of certificates or other evidence representing
the same aggregate face amount or number of units; provided that, in any such
case, the new Securities are to be delivered to Custodian;
(e) To the broker selling Securities, for examination in accordance
with the "street delivery" custom;
(f) For exchange or conversion pursuant to any plan of merger,
consolidation, recapitalization, reorganization or readjustment of the issuer of
such Securities, or pursuant to provisions for conversion contained in such
Securities, or pursuant to any deposit agreement, including surrender or receipt
of underlying Securities in connection with the issuance or cancellation of
depository receipts; provided that, in any such case, the new Securities and
cash, if any, are to be delivered to Custodian;
(g) Upon receipt of payment therefor pursuant to any repurchase
agreement entered into by the Fund;
-12-
(h) In the case of warrants, rights or similar Securities, upon the
exercise thereof, provided that, in any such case, the new Securities and cash,
if any, are to be delivered to Custodian;
(i) For delivery in connection with any loans of Securities pursuant
to any securities loan agreement entered into by the Fund, but only against
receipt of such collateral as is required under such securities loan agreement;
(j) For delivery as security in connection with any borrowings by the
Fund requiring a pledge of assets by the Fund, but only against receipt by
Custodian of the amounts borrowed;
(k) Pursuant to any authorized plan of liquidation, reorganization,
merger, consolidation or recapitalization of the Fund;
(l) For delivery in accordance with the provisions of any agreement
among the Fund, Custodian and a broker-dealer, relating to compliance with the
rules of The Options Clearing Corporation and of any registered national
securities exchange (or of any similar organization or organizations) regarding
escrow or other arrangements in connection with transactions by the Fund;
(m) For delivery in accordance with the provisions of any agreement
among the Fund, Custodian, and a futures commission merchant, relating to
compliance with the rules of the Commodity Futures Trading Commission and/or any
contract market (or any similar organization or organizations) regarding account
deposits in connection with transactions by the Fund;
(n) For delivery to a broker-dealer registered under the 1934 Act or
in accordance with the provisions of any agreement
-13-
among the Fund, Custodian and such a broker-dealer as margin for a short sale of
Securities;
(o) For delivery (by a Foreign Sub-custodian or an agent of Custodian)
to the depository used by an issuer of American Depositary Receipts or
International Depositary Receipts (hereinafter collectively referred to as
"ADRs") for such Securities against a written receipt therefor adequately
describing such Securities and written evidence satisfactory to the Foreign Sub-
custodian or agent that the depository has acknowledged receipt of instructions
to issue with respect to such Securities ADRs in the name of the Custodian, or a
nominee of the Custodian, for delivery to the Custodian;
(p) To deliver ADRs to the issuer thereof against a written receipt
therefor adequately describing the ADR's delivered and written evidence
satisfactory to the Custodian that the issuer of the ADRs has acknowledged the
receipt of instructions to cause its depository to deliver the Securities
underlying such ADRs to a Foreign Sub-custodian or agent of Custodian; or
(q) For any other proper purpose, but only upon receipt, in addition
to Proper Instructions, of a copy of a resolution of the Board of Directors,
certified by an Officer, specifying the Securities to be delivered, setting
forth the purpose for which such delivery is to be made, declaring such purpose
to be a proper purpose of the Fund, and naming the person or persons to whom
delivery of such Securities is to be made.
3.8 ACTIONS NOT REQUIRING PROPER INSTRUCTIONS. Unless otherwise
-----------------------------------------
instructed by the Fund, Custodian shall with respect to all Securities held for
the Fund:
-14-
(a) Subject to Section 8.4 below, collect on a timely basis all income
and other payments to which the Fund is entitled either by law or pursuant to
custom in the securities business;
(b) Subject to Section 8.4 below, collect on a timely basis the amount
payable upon or with respect to all Securities and other assets which may mature
or be called, redeemed, retired or otherwise become payable;
(c) Endorse for collection, in the name of the Fund, checks, drafts
and other negotiable instruments;
(d) Surrender interim receipts or Securities in temporary form for
Securities in definitive form;
(e) Execute, as custodian, any necessary declarations or certificates
of ownership under the federal income tax laws or the laws or regulations of any
other taxing authority now or hereafter in effect, and prepare and submit
reports to the Internal Revenue Service ("IRS") and to the Fund at such time, in
such manner and containing such information as is prescribed by the IRS;
(f) Hold for the Fund all rights and similar securities issued with
respect to Securities of the Fund; and
(g) In general, attend to all non-discretionary details in connection
with the sale, exchange, substitution, purchase, transfer and other dealings
with Securities and assets of the Fund.
3.9 REGISTRATION AND TRANSFER OF SECURITIES. All Securities held for the
---------------------------------------
Fund that are issuable only in bearer form shall be held by Custodian in that
form, provided that any such Securities shall be held in a Book-Entry System if
eligible therefor. All other Securities held for the Fund may be registered in
the name of Custodian as agent, any sub-custodian appointed pursuant to Section
-15-
3.3 above, any Securities Depository, any Foreign Sub-custodian or Foreign
Securities Depository (in the case of Foreign Securities), or any nominee or
agent of any of them. The Fund shall furnish to Custodian appropriate
instruments to enable Custodian to hold or deliver in proper form for transfer,
or to register as in this Section 3.9 provided, any Securities delivered to
Custodian which are registered in the name of the Fund.
3.10 RECORDS. (a) Custodian shall maintain complete and accurate records
-------
with respect to Securities, cash or other property held for the Fund, including
(i) journals or other records of original entry containing an itemized daily
record in detail of all receipts and deliveries of Securities and all receipts
and disbursements of cash; (ii) ledgers (or other records) reflecting (A)
Securities in transfer, if any, (B) Securities in physical possession, (C)
monies and Securities borrowed and monies and Securities loaned (together with a
record of the collateral therefor and substitutions of such collateral), (D)
dividends and interest received, and (E) dividends receivable and interest
accrued; and (iii) cancelled checks and bank records related thereto. Custodian
shall keep such other books and records with respect to Securities, cash and
other property of the Fund which is held hereunder as the Fund may reasonably
request.
(b) All such books and records maintained by Custodian shall (i) be
maintained in a form acceptable to the Fund and in compliance with rules and
regulations of the Securities and Exchange Commission, (ii) be the property of
the Fund and at all times during the regular business hours of Custodian be made
available upon request for inspection by duly authorized officers, employees or
agents of the Fund and employees or agents of the Securities and Exchange
Commission, and (iii) if required to be maintained by Rule 31a-1 under the 1940
Act, be preserved for the periods prescribed in Rule 31a-2 under the 1940 Act.
-16-
3.11 REPORTS BY CUSTODIAN. Custodian shall furnish the Fund with a daily
--------------------
activity statement, including a summary of all transfers to or from the Custody
Account, on the day following such transfers. At least monthly and from time to
time, Custodian shall furnish the Fund with a detailed statement of the
Securities and moneys held for the Fund under this Agreement.
3.12 OTHER REPORTS BY CUSTODIAN. Custodian shall provide the Fund with
--------------------------
such reports as the Fund may reasonably request from time to time on the
internal accounting controls and procedures for safeguarding Securities which
are employed by Custodian or any sub-custodian appointed pursuant to Section 3.3
above.
3.13 PROXIES AND OTHER MATERIALS. Unless otherwise instructed by the
---------------------------
Fund, Custodian shall promptly deliver to the Fund (at the address set forth in
Article XV below) all notices of meetings, proxies and proxy materials which it
receives regarding Securities held in the Custody Account. Before delivering
them to the Fund, Custodian shall cause all proxies relating to such Securities
which are not registered in the name of the Fund, or a nominee thereof, to be
promptly executed by the registered holder of such Securities, without
indication of the manner in which such proxies are to be voted. Unless otherwise
instructed by the Fund, neither Custodian nor any of its agents shall exercise
any voting rights with respect to Securities held hereunder.
3.14 INFORMATION ON CORPORATE ACTIONS. Custodian shall promptly transmit
--------------------------------
to the Fund (at the address set forth in Article XV below) all written
information received by Custodian from issuers of Securities held in the Custody
Account. With respect to tender or exchange offers for such Securities,
Custodian shall promptly transmit to the Fund all written information received
by it from the issuers of the Securities whose tender or exchange is sought and
by the party (or its agents) making the tender or exchange offer. If the Fund
desires to take action with respect to
-17-
any tender offer, exchange offer or other similar transaction, the Fund shall
notify Custodian (a) in the case of Foreign Securities, such number of Business
Days prior to the date on which Custodian is to take such action (which number
of days is in the Custodian's sole discretion) as will allow Custodian to take
such action in the relevant local market in a timely fashion, and (b) in the
case of all other Securities, at least five Business Days prior to the date on
which Custodian is to take such action.
3.15 CO-OPERATION. Custodian shall cooperate with and supply necessary
------------
information to the entity or entities appointed by the Fund to keep the books of
account of the Fund and/or to compute the value of the assets of the Fund.
ARTICLE IV
DUTIES OF CUSTODIAN WITH
RESPECT TO PROPERTY OF
THE FUND HELD OUTSIDE THE UNITED STATES
---------------------------------------
4.1 APPOINTMENT OF FOREIGN SUB-CUSTODIANS. Custodian may appoint sub-
-------------------------------------
custodians pursuant to Section 3.3 hereof or Eligible Foreign Custodians in
accordance with Rule 17f-5 under the 1940 Act as Foreign Sub-custodians
hereunder for the Fund's Securities and other assets maintained outside the
United States. Upon receipt of Written Instructions from the Fund to do so, the
Custodian shall cease the employment of any Foreign Sub-custodian for
maintaining custody of the Fund's assets.
4.2 ASSETS TO BE HELD. The Custodian shall limit the Securities and
-----------------
other assets maintained in the custody of an Eligible Foreign Custodian to: (a)
Foreign Securities, and (b) cash and cash equivalents in such amounts as the
Fund may determine.
4.3 FOREIGN SECURITIES DEPOSITORIES. Custodian or any Foreign Sub-
-------------------------------
custodian employed by it may maintain assets of the
-18-
Fund in Foreign Securities Depositories in accordance with Rule 17f-5 under the
1940 Act.
4.4 AGREEMENTS WITH FOREIGN SUB-CUSTODIANS. Fund shall approve in
--------------------------------------
writing (a) the appointment of each Foreign Sub-custodian and the agreement
pursuant to which the Custodian employs such Foreign Sub-custodian and (b) for
the appointment of each Eligible Foreign Custodian as a Foreign Sub-custodian,
the country or countries in which such Foreign Sub-custodian is authorized to
hold Securities, cash and other property of the Fund.
4.5 APPROVED FOREIGN SUB-CUSTODIANS. (a) Those Foreign Sub-custodians
-------------------------------
and the countries where and the Foreign Securities Depositories through which
they or the Custodian may hold Securities, cash and other property of the Fund
which the Fund has approved to date are set forth on Exhibit D hereto. Exhibit
D shall be amended from time to time as Foreign Sub-custodians, countries and/or
Foreign Securities Depositories are changed, added or deleted. The Fund shall
be responsible for informing the Custodian sufficiently in advance of a proposed
investment which is to be held in a country not listed in Exhibit E in order to
allow the Fund to give the approval required by Section 4.4 hereof and for
Custodian to put the appropriate arrangements in place with a Foreign Sub-
custodian.
(b) If the Fund invests in a Security to be held pursuant to this
Article before the foregoing procedures have been completed, such Security may
be held by such agent as Custodian may select, and Custodian shall bear no
liability to Fund for the actions of such agent, except to the extent Custodian
shall have recovered from such agent for any damages caused to Fund by such
agent.
4.6 REPORTS BY CUSTODIAN. Custodian shall supply to the Fund from time
--------------------
to time, as mutually agreed upon, reports in respect
-19-
of the safekeeping of the Securities and other assets of the Fund held by
Foreign Sub-custodians, including, but not limited to, advices or notifications
of transfers of Securities to or from the accounts maintained by Foreign Sub-
custodians for the Custodian on behalf of the Fund.
4.7 TRANSACTIONS IN FOREIGN CUSTODY ACCOUNT. (a) Upon receipt of Proper
---------------------------------------
Instructions given in any of the cases specified in Section 3.7 above, Custodian
shall cause the Foreign Sub-custodians to transfer, exchange or deliver Foreign
Securities owned by the Fund, subject to all local laws, regulations, customs,
procedures and practices applicable in the relevant local market; and
(b) Upon receipt of Proper Instructions given in any of the cases
specified in Section 3.6 above, Custodian shall cause the Foreign Sub-custodians
to pay out monies of the Fund, subject to all local laws, regulations, customs,
procedures and practices applicable in the relevant local market.
4.8 LIABILITY OF FOREIGN SUB-CUSTODIANS. The agreement pursuant to which
-----------------------------------
the Custodian employs a Foreign Sub-custodian shall require such Foreign Sub-
custodian to exercise reasonable care in the performance of its duties and shall
hold such Foreign sub-custodian responsible for any direct loss or damage
arising out of any willful misfeasance, bad faith or negligence of such Foreign
Sub-custodian in the performance of its obligations under such agreement or out
of its reckless disregard of such obligations. At its election, the Fund shall
be subrogated to the rights of Custodian with respect to any claims against a
Foreign Sub-custodian as a consequence of any such loss or damage if and to the
extent that the Fund has not been made whole for any such loss or damage.
-20-
4.9 LIABILITY OF CUSTODIAN. Notwithstanding anything to the contrary in
----------------------
Section 8.1 below or elsewhere in this Agreement, Custodian shall have no
greater liability to the Fund for the actions or omissions of any Foreign Sub-
custodian than any such Foreign Sub-custodian has to Custodian, and Custodian
shall not be required to discharge any such liability which may be imposed on it
unless and until such Foreign Sub-custodian has effectively indemnified
Custodian against it or has otherwise discharged its liability to Custodian in
full. Custodian shall have no liability for any loss or damage resulting from
acts or omissions of any Foreign Sub-custodian arising out of or caused,
directly or indirectly, by circumstances beyond such Foreign Sub-custodian's
reasonable control, including, without limitation, sovereign risk, as described
in Section 8.7, or "force majeure", as covered in Article X.
4.10 MONITORING RESPONSIBILITIES. Upon the request of the Fund, Custodian
---------------------------
shall annually furnish to the Fund information concerning all Foreign Sub-
custodians hereunder which shall be similar in kind and scope to that furnished
to the Fund in connection with the initial approval by the Fund of the
agreements pursuant to which Custodian employs such Foreign Sub-custodians or as
otherwise required by Rule 17f-5 under the 1940 Act.
4.11 TAX RECLAIMS. Upon the written request of the Fund, Custodian shall
------------
exercise, on behalf of the Fund, tax reclaim rights of Fund which arise in
connection with Foreign Securities in the Custody Account.
ARTICLE V
PURCHASE AND SALE OF INVESTMENTS OF THE FUND
--------------------------------------------
5.1 PURCHASE OF SECURITIES. Promptly upon each purchase of Securities
----------------------
for the Fund, Written Instructions shall be delivered to Custodian, specifying
(a) the name of the issuer or writer of such
-21-
Securities, and the title or other description thereof, (b) the number of
shares, principal amount (and accrued interest, if any), or other units
purchased, (c) the date of purchase and settlement, (d) the purchase price per
unit, (e) the total amount payable upon such purchase, and (f) the name of the
person to whom such amount is payable. Custodian shall upon receipt of such
Securities purchased by the Fund (or, if the Securities are transferred by means
of a private placement transaction, upon the receipt of such Securities or
payment instructions to Custodian which detail specific Securities to be
acquired) pay out of the moneys held for the account of the Fund the total
amount specified in such Written Instructions to the person named therein.
Custodian shall not be under any obligation to pay out moneys to cover the cost
of a purchase of Securities or other assets for the Fund if there is
insufficient cash available in the Custody Account.
5.2 SALE OF SECURITIES. Promptly upon each sale of Securities by the
------------------
Fund, Written Instructions shall be delivered to Custodian, specifying (a) the
name of the issuer or writer of such Securities, and the title or other
description thereof, (b) the number of shares, principal amount (and accrued
interest, if any), or other units sold, (c) the date of sale and settlement, (d)
the sale price per unit, (e) the total amount payable upon such sale, and (f)
the person to whom such Securities are to be delivered. Upon receipt of the
total amount payable to the Fund as specified in such Written Instructions,
Custodian shall deliver such Securities to the person specified in such Written
Instructions. Subject to the foregoing, Custodian may accept payment in such
form as shall be satisfactory to it, and may deliver Securities and arrange for
payment in accordance with the customs prevailing among dealers in Securities.
5.3 DELIVERY OF SECURITIES SOLD. Notwithstanding Section 5.2 above or
---------------------------
any other provision of this Agreement and subject, in the case of Foreign
Securities, to all local laws, regulations,
-22-
customs, procedures and practices applicable in the relevant local market,
Custodian, when instructed to deliver Securities against payment, shall be
entitled, but only if in accordance with generally accepted market practice, to
deliver such Securities prior to actual receipt of final payment therefor and,
exclusively in the case of Securities in physical form, to deliver such
Securities prior to receipt of payment. In any such case, the Fund shall bear
the risk that final payment for such Securities may not be made or that such
Securities may be returned or otherwise held or disposed of by or through the
person to whom they were delivered, and Custodian shall have no liability for
any of the foregoing.
5.4 PAYMENT FOR SECURITIES SOLD, ETC. In its sole discretion and from
---------------------------------
time to time, Custodian may credit the Custody Account, prior to actual receipt
of final payment thereof, with (a) proceeds from the sale of Securities which it
has been instructed to deliver against payment, (b) proceeds from the redemption
of Securities or other assets of the Fund, and (c) income from cash, Securities
or other assets of the Fund. Any such credit shall be conditional upon actual
receipt by Custodian of final payment and may be reversed if final payment is
not actually received in full. Custodian may, in its sole discretion and from
time to time, permit the Fund to use funds so credited to the Custody Account in
anticipation of actual receipt of final payment. Any such funds shall be
repayable immediately upon demand made by Custodian at any time prior to the
actual receipt of all final payments in anticipation of which funds were
credited to the Custody Account.
5.5 FINAL PAYMENT. For purposes of this Agreement, "final payment" means
-------------
payment in funds which are (or have become) immediately available, under
applicable law are irreversible, and are not subject to any security interest,
xxxx, xxxx or other encumbrance.
-23-
ARTICLE VI
REDEMPTION OF FUND SHARES
-------------------------
6.1 TRANSFER OF FUNDS. From such funds as may be available for the
-----------------
purpose in the Custody Account, and upon receipt of Proper Instructions
specifying that the funds are required to redeem Shares on account of the Fund,
Custodian shall wire each amount specified in such Proper Instructions to or
through such bank as the Fund may designate therein with respect to such amount.
6.2 NO DUTY REGARDING PAYING BANKS. Custodian shall not be responsible
------------------------------
for the payment or distribution by any bank designated in Proper Instructions
given pursuant to Section 6.1 above of any amount paid by Custodian to such bank
in accordance with such Proper Instructions.
ARTICLE VII
SEGREGATED ACCOUNTS
-------------------
Upon receipt of Proper Instructions, Custodian shall establish and maintain
a segregated account or accounts for and on behalf of the Fund, into which
account or accounts may be transferred cash and/or Securities, including
Securities maintained in a Depository Account:
(a) in accordance with the provisions of any agreement among the Fund,
Custodian and a broker-dealer (or any futures commission merchant), relating to
compliance with the rules of The Options Clearing Corporation or 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 Fund,
-24-
(b) for purposes of segregating cash or Securities in connection with
securities options purchased or written by the Fund or in connection with
financial futures contracts (or options thereon) purchased or sold by the Fund,
(c) which constitute collateral for loans of Securities made by the
Fund,
(d) for purposes of compliance by the Fund with requirements under the
1940 Act for the maintenance of segregated accounts by registered investment
companies in connection with reverse repurchase agreements, when-issued, delayed
delivery and firm commitment transactions, and short sales of securities, and
(e) for other proper purposes, but only upon receipt of, in addition
to Proper Instructions, a copy of a resolution of the Board of Directors,
certified by an Officer, setting forth the purpose or purposes of such
segregated account and declaring such purposes to be proper purposes of the
Fund.
ARTICLE VIII
CONCERNING THE CUSTODIAN
------------------------
8.1 STANDARD OF CARE. Custodian shall be held to the exercise of
----------------
reasonable care in carrying out its obligations under this Agreement, and shall
be without liability to the Fund for any loss, damage, cost, expense (including
attorneys' fees and disbursements), liability or claim which does not arise from
willful misfeasance, bad faith or negligence on the part of Custodian or
reckless disregard by Custodian of its obligations under this Agreement.
Custodian shall be entitled to rely on and may act upon advice of counsel on all
matters, and shall be without liability for any action reasonably taken or
omitted pursuant to such advice. In no event shall Custodian be liable for
special or consequential damages or be liable in any manner whatsoever for any
-25-
action taken or omitted upon instructions from the Fund or any agent of the
Fund. Custodian shall not be under any obligation at any time to ascertain
whether the Fund is in compliance with the 1940 Act, the regulations thereunder,
the provisions of its charter documents or by-laws, or its investment
objectives, policies and limitations as in effect from time to time.
8.2 ACTUAL COLLECTION REQUIRED. Custodian shall not be liable for, or
--------------------------
considered to be the custodian of, any cash belonging to the Fund or any money
represented by a check, draft or other instrument for the payment of money,
until Custodian or its agents actually receive such cash or collect on such
instrument.
8.3 NO RESPONSIBILITY FOR TITLE, ETC. So long as and to the extent that
---------------------------------
it is in the exercise of reasonable care, Custodian shall not be responsible for
the title, validity or genuineness of any property or evidence of title thereto
received or delivered by it or its agents.
8.4 LIMITATION ON DUTY TO COLLECT. Custodian shall promptly notify the
-----------------------------
Fund whenever any money or property due and payable from or on account of any
Securities held hereunder for the Fund is not timely received by it. Custodian
shall not, however, be required to enforce collection, by legal means or
otherwise, of any such money or other property not paid when due, but shall
receive the proceeds of such collections as may be effected by it or its agents
in the ordinary course of Custodian's custody and safekeeping business or of the
custody and safekeeping business of such agents.
8.5 EXPRESS DUTIES ONLY. Custodian shall have no duties or obligations
-------------------
whatsoever except such duties and obligations as are specifically set forth in
this Agreement, and no covenant or obligation shall be implied in this Agreement
against Custodian. Custodian shall have no discretion whatsoever with respect to
the
-26-
management, disposition or investment of the Custody Account and is not a
fiduciary to the Fund.
8.6 COMPLIANCE WITH LAWS. Custodian undertakes to comply with all
--------------------
applicable requirements of the Securities Act of 1933, the Securities Exchange
Act of 1934, the 1940 Act and the Commodities Exchange Act and any laws, rules
and regulations of governmental authorities having jurisdiction with respect to
the duties to be performed by Custodian hereunder. Except as specifically set
forth herein, Custodian assumes no responsibility for such compliance by the
Fund.
8.7 NO LIABILITY FOR SOVEREIGN RISK. Custodian shall not be liable for
-------------------------------
any loss involving any Securities, currencies, deposits or other property of the
Fund, whether maintained by it, a Foreign Sub-custodian, a Foreign Securities
Depository, an agent of Custodian or a Foreign Sub-custodian or a bank, or for
any loss arising from a foreign currency transaction or contract, where the loss
results from a sovereign risk or where the entity maintaining such Securities,
currencies, deposits or other property of the Fund, whether Custodian, a Foreign
Sub-custodian, a Foreign Securities Depository, an agent of Custodian or a
Foreign Sub-custodian or a bank, has exercised reasonable care maintaining such
property or in connection with the transaction involving such property. For
purposes of this Agreement, "sovereign risk" shall mean nationalization,
expropriation, devaluation, revaluation, confiscation, seizure, cancellation,
destruction or similar action by any governmental authority, de facto or de
jure; or enactment, promulgation, imposition or enforcement by any such
governmental authority of currency restrictions, exchange controls, taxes,
levies or other charges affecting the Fund's property; or acts of war,
terrorism, insurrection or revolution; or any other act or event beyond the
control of the Foreign Sub-custodian, the Foreign Securities Depository or the
agent of any of them.
-27-
ARTICLE IX
INDEMNIFICATION
---------------
9.1 INDEMNIFICATION. The Fund shall indemnify and hold harmless
---------------
Custodian, any sub-custodian and any nominee of Custodian or any sub-custodian,
from and against any loss, damages, cost, expense (including attorneys' fees and
disbursements), liability (including, without limitation, liability arising
under the Securities Act of 1933, the 1934 Act, the 1940 Act, and any federal,
state or foreign securities and/or banking laws) or claim arising directly or
indirectly (a) from the fact that Securities are registered in the name of any
such nominee, or (b) from any action or inaction by Custodian or such sub-
custodian or other agent (i) at the request or direction of or in reliance on
the advice of the Fund or any of its agents, or (ii) upon Proper Instructions,
or (c) generally, from the performance of its obligations under this Agreement,
provided that Custodian, any sub-custodian or any nominee of either of them
shall not be indemnified and held harmless from and against any such loss,
damage, cost, expense, liability or claim arising from Custodian's willful
misfeasance, bad faith, negligence or reckless disregard of its obligations
under this Agreement or, in the case of any sub-custodian or its nominee, from
such sub-custodian's willful misfeasance, bad faith, negligence or reckless
disregard of its obligations under the Agreement under which it is acting.
9.2 INDEMNITY TO BE PROVIDED. If the Fund requests Custodian to take any
------------------------
action with respect to Securities, which may, in the opinion of Custodian,
result in Custodian or its nominee becoming liable for the payment of money or
incurring liability of some other form, Custodian shall not be required to take
such action until the Fund shall have provided indemnity therefor to Custodian
in an amount and form satisfactory to Custodian.
-28-
9.3 SECURITY. As security for the payment of any present or future
--------
obligation or liability of any kind which the Fund may have to Custodian with
respect to or in connection with the Custody Account or this Agreement, the Fund
hereby pledges to Custodian all cash, Securities and other property of every
kind which is in the Custody Account or otherwise held for the Fund pursuant to
this Agreement, and hereby grants to Custodian a lien, right of set-off and
continuing security interest in such cash, Securities and other property.
ARTICLE X
FORCE MAJEURE
-------------
Neither Custodian nor the Fund shall be liable for any failure or delay in
performance of its obligations under this Agreement arising out of or caused,
directly or indirectly, by circumstances beyond its reasonable control,
including, without limitation, acts of God; earthquakes; fires; floods; wars;
civil or military disturbances; sabotage; strikes; epidemics; riots; power
failures; computer failure and any such circumstances beyond its reasonable
control as may cause interruption, loss or malfunction of utility,
transportation, computer (hardware or software) or telephone communication
service; accidents; labor disputes; acts of civil or military authority;
governmental actions; or inability to obtain labor, material, equipment or
transportation.
ARTICLE XI
REPRESENTATIONS AND WARRANTIES
------------------------------
Each of the Fund and Custodian represents and warrants for itself that (a)
it has all necessary power and authority to perform its obligations hereunder,
(b) the execution and delivery by it of this Agreement, and the performance by
it of its obligations under this Agreement, have been duly authorized by all
necessary action and will not violate any law, regulation, charter, by-law, or
other
-29-
instrument, restriction or provision applicable to it or by which it is bound,
and (c) this Agreement constitutes a legal, valid and binding obligation of it,
enforceable against it in accordance with its terms.
ARTICLE XII
COMPENSATION OF CUSTODIAN
-------------------------
The Fund shall pay Custodian such fees and charges as are set forth in the
fee schedule annexed hereto as Exhibit C, as such fee schedule may from time to
time be revised by Custodian upon 14 days' prior written notice to the Fund.
Any annual fee or other charges payable by the Fund shall be paid monthly by
automatic deduction from the Custody Account. Expenses incurred by Custodian in
the performance of its services hereunder, and all other proper charges and
disbursements of the Custody Account, shall be charged to the Custody Account by
Custodian and paid therefrom.
ARTICLE XIII
TAXES
-----
Any and all taxes, including any interest and penalties with respect
thereto, which may be levied or assessed under present or future laws or in
respect of the Custody Account or any income thereof shall be charged to the
Custody Account by Custodian and paid therefrom.
ARTICLE XIV
AUTHORIZED PERSONS
------------------
14.1 AUTHORIZED PERSONS. Custodian may rely upon and act in accordance
------------------
with any notice, confirmation, instruction or other communication received by it
from the Fund which is reasonably believed by Custodian to have been given or
signed on behalf of the Fund by one of the Authorized Persons designated by the
Fund in Exhibit A hereto, as it may from time to time be revised. The Fund
-30-
may revise Exhibit A hereto at any time by notice in writing to Custodian given
in accordance with Article XV below, but no revision of Exhibit A hereto shall
be effective until Custodian actually receives such notice.
14.2 INVESTMENT ADVISERS. Custodian may also act in accordance with any
-------------------
Written or Oral Instructions which are reasonably believed by Custodian to have
been given or signed by one of the persons designated from time to time by any
of the investment advisers of the Fund specified in Exhibit B hereto (if any) as
it may from time to time be revised. The Fund may revise Exhibit B hereto at
any time by notice in writing to Custodian given in accordance with Article XV
below, and each investment adviser specified in Exhibit B hereto (if any) may at
any time by like notice designate an Authorized Person or remove an Authorized
Person previously designated by it, but no revision of Exhibit B hereto (if any)
and no designation or removal by such investment adviser shall be effective
until Custodian actually receives such notice.
14.3 ORAL INSTRUCTIONS. Custodian may rely upon and act in accordance
-----------------
with Oral Instructions (as defined in Section 1.11 above). If Written
Instructions confirming Oral Instructions are not received by Custodian prior to
a transaction, it shall in no way affect the validity of the transaction
authorized by such Oral Instructions or the authorization of the Fund to effect
such transaction. Custodian shall incur no liability to the Fund in acting upon
Oral Instructions (as defined in Section 1.11 above). To the extent such Oral
Instructions vary from any confirming Written Instructions, Custodian shall
advise the Fund of such variance but unless confirming Written Instructions are
timely received, such Oral Instructions will govern. Either Custodian or Fund
may electronically record any instructions given by telephone and any other
telephone discussions with respect to the account of the Fund.
-31-
ARTICLE XV
NOTICES
-------
Unless otherwise specified herein, all demands, notices, instructions, and
other communications to be given hereunder shall be sent, delivered or given to
the recipient at the address set forth after its name hereinbelow:
IF TO THE FUND:
Small Cap Value Portfolio - The Bear Xxxxxxx Funds
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx
----------------
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
IF TO CUSTODIAN:
Custodial Trust Company
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000-0000
Attention: Vice President - Trust Operations
---------------------------------
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or at such other address as either party shall have provided to the other by
notice given in accordance with this Article XV. Writing shall include
transmissions by or through teletype, facsimile, central processing unit
connection, on-line terminal and magnetic tape.
ARTICLE XVI
TERMINATION
-----------
Either party hereto may terminate this Agreement by giving to the other
party a notice in writing specifying the date of such termination, which shall
be not less than sixty (60) days after the date of the giving of such notice.
Upon the date set forth in such notice this Agreement shall terminate, and
Custodian shall, upon receipt of a notice of acceptance by the successor
custodian, on
-32-
that date (a) deliver directly to the successor custodian or its agents all
Securities (other than Securities held in a Book-Entry System, Securities
Depository or Foreign Securities Depository) and cash then owned by the Fund and
held by Custodian as custodian, and (b) transfer any Securities held in a Book-
Entry System, Securities Depository or Foreign Securities Depository to an
account of or for the benefit of the Fund, provided that the Fund shall have
paid to Custodian all fees, expenses and other amounts to the payment or
reimbursement of which it shall then be entitled.
ARTICLE XVII
MISCELLANEOUS
-------------
17.1 BUSINESS DAYS. Nothing contained in this Agreement shall require
-------------
Custodian to perform any function or duties on a day other than a Business Day.
17.2 GOVERNING LAW. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the State of New York, without regard to the
conflict of law principles thereof.
17.3 REFERENCES TO CUSTODIAN. The Fund shall not circulate any printed
-----------------------
matter which contains any reference to Custodian without the prior written
approval of Custodian, excepting printed matter contained in the prospectus or
statement of additional information for the Fund and such other printed matter
as merely identifies Custodian as custodian for the Fund. The Fund shall submit
printed matter requiring approval to Custodian in draft form, allowing
sufficient time for review by Custodian and its counsel prior to any deadline
for printing.
17.4 NO WAIVER. No failure by either party hereto to exercise, and no
---------
delay by such party in exercising, any right hereunder shall operate as a waiver
thereof. The exercise by either party hereto of any right hereunder shall not
preclude the exercise
-33-
of any other right, and the remedies provided herein are cumulative and not
exclusive of any remedies provided at law or in equity.
17.5 AMENDMENTS. This Agreement cannot be changed orally and no amendment
----------
to this Agreement shall be effective unless evidenced by an instrument in
writing executed by the parties hereto.
17.6 COUNTERPARTS. This Agreement may be executed in one or more
------------
counterparts, and by the parties hereto on separate counterparts, each of which
shall be deemed an original but all of which together shall constitute but one
and the same instrument.
17.7 SEVERABILITY. If any provision of this Agreement shall be invalid,
------------
illegal or unenforceable in any respect under any applicable law, the validity,
legality and enforceability of the remaining provisions shall not be affected or
impaired thereby.
17.8 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
----------------------
shall inure to the benefit of the parties hereto and their respective successors
and assigns; provided, however, that this Agreement shall not be assignable by
-------- -------
either party hereto without the written consent of the other party. Any
purported assignment in violation of this Section 17.8 shall be void.
17.9 HEADINGS. The headings of sections in this Agreement are for
--------
convenience of reference only and shall not affect the meaning or construction
of any provision of this Agreement.
-34-
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed in its name and on its behalf by its representative thereunto duly
authorized, all as of the day and year first above written.
SMALL CAP VALUE PORTFOLIO - CUSTODIAL TRUST COMPANY
THE BEAR XXXXXXX FUNDS
By /s/ Xxxxx X. Xxxxxxx By /s/ Xxxxxx X. Xxxxxx
-------------------- --------------------
Authorized Officer Authorized Officer
-35-
EXHIBIT A
---------
AUTHORIZED PERSONS WITH ACCESS TO INVESTMENTS*
Set forth below are the names of the persons, whose specimen signatures are
on file with the Custodian, authorized by the Board of Trustees of The Bear
Xxxxxxx Funds to have access to the Small Cap Portfolio's (the "Fund")
investments.
Name
----
Xxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Xxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxx
_____________________
*Nothing herein shall prohibit any person designated as an Authorized Person
from giving Oral Instructions or Written Instructions to the Custodian, so long
as it does not result in delivery of or access to securities and similar
investments of the Fund by such person.
EXHIBIT B
---------
INVESTMENT ADVISERS
Bear Xxxxxxx Funds Management Inc.
EXHIBIT C
---------
CUSTODY FEES AND TRANSACTION CHARGES
DOMESTIC FEES. The Fund shall pay Custodian the following fees and charges
-------------
for assets in the United States ("Domestic Assets") and transactions in the
United States, all such fees and charges to be payable monthly:
(1) an annual fee of the greater of 0.015% (one and one-half basis points)
per annum of the value of the Domestic Assets in the Custody Account or $5,000,
such fee to be payable monthly based upon the total market value of such
Domestic Assets as determined on the last Business Day of the month for which
such fee is charged;
(2) a transaction charge of $18 for each buy, sell or redemption
transaction executed in the Custody Account with respect to such Domestic Assets
as are book-entry Securities (but not for any such buy or sell in a repurchase
transaction representing a cash sweep investment for the Fund's account or the
investment by the Fund of collateral for a loan of Securities);
(3) a transaction charge of $50 for each receipt or delivery into or from
the Custody Account of such Domestic Assets as are Securities in physical form;
(4) a transaction charge for each repurchase transaction in the Custody
Account which represents a cash sweep investment for the Fund's account,
computed at a rate of 0.10% (ten basis points) per annum on the amount of the
purchase price paid or received by the Fund in such repurchase transaction;
(5) a charge of $10 for each funds transfer; and
(6) a service charge for each holding of Domestic Assets consisting of
Securities or other property sold by way of private placement or in such other
manner as to require services by Custodian which in the reasonable judgment of
Custodian are materially in excess of those ordinarily required for the holding
of publicly traded Securities in the United States.
INTERNATIONAL FEES. The Fund shall pay Custodian fees for assets outside
------------------
the United States ("Foreign Assets") and transaction charges and other charges
(including, without limitation, charges for funds transfers, tax reclaims, and
foreign exchange services) outside the United States, all such fees and charges
to be payable monthly, according to a schedule of such fees and charges specific
to each country in which Foreign Assets are held, such schedule to be provided
from time to time upon request.
Fees shall be based upon the total market value of the applicable Foreign
Assets as determined on the last Business Day of the month for which such fees
are charged.
EXHIBIT D
---------
APPROVED FOREIGN SUB-CUSTODIANS
Foreign Sub-custodian Country(ies) Securities Depositories
--------------------- ------------ -----------------------
(See Attached)
CITIBANK, N.A.
SEC RULE 17F-5 INFORMATION PACKAGE
AUGUST 1994
SECTION 2: OVERVIEW OF FOREIGN SUBCUSTODIANS & DEPOSITORIES
SECTION 2:
OVERVIEW OF CITIBANK'S
FOREIGN SUBCUSTODIAN AND
DEPOSITORY ARRANGEMENTS Colombia: Cititrust Colombia X.X.
Xxxxxxx 0X, Xx. 00-00,
Xxxxxx, Xxxxxxxx
2-01.0 SUBCUSTODIAN NETWORK
Argentina: Citibank, N.A. (Argentina) Denmark: Den Danske Bank
Xxxxxxxxx Xxxxx 502/30 0-00 Xxxxxxx Xxxxx
0000 Xxxxxx Xxxxx, Xxxxxxxxx DK-1092 Copenhagen K.
Denmark
Australia: Citicorp Nominees Pty. Ltd. Finland: Kansallis-Osake-Pankki
000 Xxxxxxx Xxxxxx Xxxxxxxxxxxxxxxx 00
Xxxxxxxxx, XXX 0000 Xxxxxxxxx 00000 Xxxxxxxx, Finland
Austria: Citibank (Austria) A.G. France: Citibank S.A. (France)
Postfach 90 Cedex 36
Xxxxxxxxxxxxxxxxx 0 00000 Xxxxx la Defense, France
X-0000 Xxxxxx, Xxxxxxx
Banque Paribas
Belgium: Generale Bank 0 Xxx X'Xxxxx
Xxxxxxxx xx Xxxx 0 00000 Xxxxx, Xxxxxx
0000 Xxxxxxxx, Xxxxxxx
Brazil: Citibank, N.A. (Brazil) Germany: Citibank Aktiengesellschaft
Avenida Paulista 1111 Xxxx Xxxxxxx Xxx. 00,
Xxx Xxxxx, Xxxxxx 00000, Frankfurt/Main,
Germany
Canada: Citibank Canada Greece: Citibank, N.A. (Greece)
000 Xxxxx Xxxxxx Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx Othonos 8
M5J2M3, Canada Xxxxxx 00000, Xxxxxx
Chile: Citibank, N.A. (Chile) Hong Kong: Citibank, N.A. (Hong Kong)
Xxxxxxx 00 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxx Xxxxxxxx Xxxxx
0 Xxxxxx Xxxx
Xxxxxxx, Xxxx Xxxx
Xxxxx: Citibank, N.A. (Hong Kong) Hungary: Citibank Budapest Xx.
x/x Xxxxxxxx, X.X., 0000 Xxxxxxxx X00-00.
Hong Kong, Citicorp Tower, Vaci Utca
Xxxxxxxx Xxxxx, 0 Xxxxxx Xxxx, Xxxxxxx
Xxxxxxx, Xxxx Xxxx
Xxxxx: Citibank, N.A. (India) New Zealand: Citibank Nominees (New
Sakhar Bhavan Zealand) Ltd.
230 Backbay Reclamation 00 Xxxxxxx Xxxxxx Xxxx
Xxxxxxx Xxxxx Xxxxxxxx 0, Xxx Xxxxxxx
Bombay 400 021
Indonesia: Citibank, N.A. (Jakarta)
Xxxxx Xxxx. Xxxxxxxx Xx. 0 Xxxxxx: Xxxxxxxxxxx Xxxx
Xxxxxxx 00000, Xxxxxxxxx X.X. Xxx 0000 Xxxxxxx
0000 Xxxx 0, Xxxxxx
Xxxxxxx: Citibank, N.A. (Ireland)
IFSC House, Custom House Pakistan: Citibank, N.A. (Pakistan)
Quay, Xxxxxx 0 X.X. Xxx 0000
Xxxxxxx 00 Xxxxxxxxxx Xxxx
Xxxxxxx 00000
Xxxxx: Citibank, N.A. (Italy) Pakistan
Foro Buonaparte N. 00
Xxxxxxx Xxxxxxx 00000
00000 Xxxxx, Xxxxx
Japan: Citibank, N.A. (Japan) Peru: Citibank, N.A. (Lima)
Citicorp Center, Xx. Xxxxxx Xxxx 000,
0-000 Xxxxxxx Xxxxxxxxx, Torre Real 5t 0 Xxxx,
Xxxxxxxxx - xx, Xxxx 00
Xxxxx, Xxxxx Xxxx
Jordan: Citibank, N.A. (Jordan) Philippines: Citibank, N.A. (Philippines)
0xx Xxxxxx Xxxxxxxx Xxxxxx
Jordan Insurance Building 8741 Paseo de Roxas
Xxxxxx Xxxxxxxx Street Makati Metro
Amman, Jordan Manila, Philippines
Korea: Citibank, N.A. (Korea) Poland: Citibank Poland S.A.
89-29 Shinmun-Ro, Sentorska 12,
Chongro-ku 00-000 Xxxxxx,
Xxxxx, Xxxxx Poland
Luxembourg: Cedel S.A. Portugal: Citibank Portugal S.A.
00 Xxxxxxxxx Xxx Xxxxx, Xxxxxxxxx 00,
Xxxxxx-Xxxxxxxx Xxxxxxxxx 0xx xxxxx, 0000 Xxxxxx,
X-0000, Xxxxxxxxxx Xxxxxxxx
Malaysia: Citibank Berhad Puerto Rico: Citibank, N.A.
28-30 Medan Pasar 000 Xxxxx Xx Xxxx Xxxxxx
00000 Xxxxx Xxxxxx, Xxxxxxxx Xxx Xxxx, Xxxxxx Xxxx 00000
Xxxxxx: Citibank, N.A. (Mexico) Singapore: Citibank, N.A. (Singapore)
Paseo de la Reforma 000 XXX Xxxxxxxx #00-00
Xxxxxx Xxxx XX, 00000 Xxxxxx 0 Xxxxxxx Xxx
Xxxxxxxxx 0106
Netherlands: Citibank, N.A. (Netherlands)
"Europlaza", South Africa: First National Bank
Xxxxxxxxxxxxx 00 X, Xxxxxxxxx xxxxx,
0000 BE Amsterdam z.o., 0 Xxxxx Xxxxx,
Xxx Xxxxxxxxxxx Post Xxx 0000
Xxxxxxxxxxxx, 0000
Xxxxx Xxxxxx
Spain: Citibank, N.A. (Spain)
Xxxx Xxxxxx Y Xxxxxx 00
00000 Xxxxxx, Xxxxx
Sri Lanka: Citibank, N.A. (Sri Lanka)
67 Dharmapala Mawatha
X.X. Xxx 000
Xxxxxxx 0, Xxx Xxxxx
Xxxxxx: Skandinaviska Enskilda Banken
Xxxxxxx Xxxx 0
Xxxxxxxxx, Xxxxxx
Xxxxxxxxxxx: Citibank (Switzerland)
Xxxxxxxxxxxxx 00,
Xxxx Xxxxxx Xxx 00
0000 Xxxxxx, Xxxxxxxxxxx
Taiwan: Citibank, N.A. (Taiwan)
Taipei Branch
Xx. 00 Xxxx Xxxxx Xxxx Xxxx
Xxx. 0
Xxxxxx, Xxxxxx
Xxxxxxxx: Citibank, N.A. (Thailand)
000 Xxxxx Xxxxxx Xxxx
Xxxxxxx 00000, Xxxxxxxx
Turkey: Citibank, N.A. (Turkey)
Buyukedere Caddesi,
Xx. 000, Xxxxxxxx 00000
Xxxxxxxx, Xxxxxx
Xxxxxx Xxxxxxx: Citibank, N.A.
00 Xxxxxxxxxx Xx,
Xxxxxxxx, Xxxxxx XX 00 0XX
Xxxxxx Xxxxxxx
The First National Bank of
Chicago
00 Xxxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX, Xxxxxxx
Uruguay: Citibank, N.A. (Uruguay)
Xxxxxxx 000
X.X. Xxx 000
Xxxxxxxxxx
Xxxxxxx
Venezuela: Citibank, N.A. (Caracas)
Carmelitas a Xxxxxxxxxx
Xxxxxxxx Xxxxxxxx
Xxxxxxx 0000, Xxxxxxxxx
2-01.1 STATUS AND SHAREHOLDERS' EQUITY
COUNTRY SUBCUSTODIAN STATUS SHAREHOLDERS'
EQUITY
Argentina Citibank, N.A. Branch NA
Australia Citicorp Nominees Pty. Ltd. Subsidiary SEC Exemption
Austria Citibank (Austria) A.G. Subsidiary SEC Exemption
Belgium Generale Bank Correspondent US$ 2,260 MM
Brazil Citibank, N.A. Branch NA
Canada Citibank Canada Subsidiary US$ 299.9 MM
Chile Citibank, N.A. Branch NA
China Citibank, N.A. Branch NA
Colombia Cititrust Colombia S.A. Subsidiary SEC Exemption
Sociedad Fiduciary
Denmark Den Danske Bank Correspondent US$ 2,975 MM
Finland Kansallis-Osake-Pankki Correspondent US$ 1,325 MM
France Citibank S.A. Subsidiary SEC Exemption
France Banque Paribas Correspondent US$ 2,998 MM
Germany Citibank Aktiengesellschaft Subsidiary US$ 298 MM
Greece Citibank, N.A. Branch NA
Hong Kong Citibank, N.A. Branch NA
Hungary Citibank Budapest Rt. Subsidiary SEC Exemption
India Citibank, N.A. Branch NA
Indonesia Citibank, N.A. Branch NA
Ireland Citibank, N.A. Branch NA
Italy Citibank, N.A. Branch NA
Japan Citibank, N.A. Branch XX
Xxxxxx Citibank, N.A. Branch NA
Korea Citibank, N.A. Branch NA
Luxembourg Cedel S.A. Depository NA
Malaysia Citibank Berhad Subsidiary US$ 145MM
Mexico Citibank, N.A. Branch NA
Netherlands Citibank, N.A. Branch NA
New Zealand Citibank Nominees (NZ) Ltd. Subsidiary SEC Exemption
Norway Christiania Bank Correspondent US$ 512MM
Pakistan Citibank, N.A. Branch NA
Peru Citibank, N.A. Branch NA
Philippines Citibank, N.A. Branch NA
Poland Citibank Poland S.A. Subsidiary SEC Exemption
Portugal Citibank Portugal S.A. Subsidiary SEC Exemption
Singapore Citibank, N.A. Branch NA
South Africa First National Bank of Southern Africa Ltd. Correspondent US$ 620MM
Spain Citibank, N.A. Branch NA
Sri Lanka Citibank, N.A. Branch NA
Sweden Skandinaviska Enskilda Banken Correspondent US$ 669MM
Switzerland Citibank (Switzerland) Affiliate US$ 198MM
Taiwan Citibank, N.A. Branch NA
Thailand Citibank, N.A. Branch NA
Turkey Citibank, N.A. Branch NA
U.K. Citibank, N.A. Branch NA
Uruguay Citibank, N.A. Branch NA
Venezuela Citibank, N.A. Branch NA
2-02.0 DEPOSITORIES
Argentina: Caja de Valores ("CDV") Finland: Central Share Registry
The Helsinki Money
Market Center
Australia: The Reserve Bank Information France: Societe Interprofessionnelle
and Transfer System ("RITS") pour la Compensation de
Valeurs Mobilieres
Austraclear ("SICOVAM")
Austria: Wertpapiersammelbank Banque de France
bei der Oesterreichische
Kontrollbank ("OEKB/WSB") Germany: Deutscher Kassenverein A.G.
("DKV")
Belgium: Caisse Interprofessionelle
de Depots et de Virements Greece: Central Securities Depository,
de Titres S.A. ("CIK") S.A. ("CSD")
Banque Nationale Hong Kong: Central Clearing and
de Belgique ("BNB") Settlement System
("CCASS")
Brazil: BOVESPA's Registered
Shares Fungible Custody Hungary: The Central Depository and
("BOVESPA") Clearing House ("CDCH")
Canada: The Canadian Depository for Ireland: Gilt Settlement Office ("GSO")
Securities Limited ("CDS")
Italy: Monte Titoli Instituto per la
China: The Shanghai Securities Custodia e l'Amministrazione
Central Clearing and Accentrata di Valori Mibiliar
Registration Corporation ("Monte Titoli")
("SSCCRC")
The Bank of Italy
The Shenzhen Securities
Registrars Co. Ltd. - Japan: Japan Securities Depository
registrar for three banks Center ("JASDEC")
forming a decentralized
depository structure
The Bank of Japan ("BOJ")
Denmark: Vaerdipapircentralen ("VP") Korea: The Korea Securities
Depository ("KSD")
Luxembourg: CEDEL, S.A.
Malaysia: Malaysian Central
Depository Sdn. Bhd.
("MCD")
Mexico: Instituto para el Deposito de
Valores ("S.D. Indeval")
Netherlands: Nederlands Centraal Instituut
voor Giraal Effectenverkeer
B.V. ("Necigef")
New Zealand: Austraclear
Norway: The Norwegian Registry of
Securities -
Verdipapirsentralen ("VPS")
Peru: Caja de Valores ("CAVAL")
Poland: The National Depository of Securities
(Krajowy Depozyt Papierow Wartosciowych)
Portugal: Central de Registo e Valores Mobiliarios
Singapore: Central Depository (PTE) Ltd.
South Africa: The Central Depository (Pty) Ltd.
Spain: Xxxxxxx xx Xxxxxxxxxxxx x
Xxxxxxxxxxx xx Xxxxxxx ("XXXX")
Xxx Xxxxx: Central Depository System (Pvt) Limited
Sweden: Vardepapperscentralen VPC AB ("VPC")
Switzerland: Schwerzerische Effekten-Giro AG ("SEGA")
Taiwan: Taiwan Securities Central
Depository Co., Ltd. ("TSCD")
Thailand: Share Depository Center ("SDC")
Turkey: Istanbul Stock Exchange Settlement
and Custody Company Inc.
United
Kingdom: Central Gilts Office ("CGO")
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK
GLOBAL CUSTODY NETWORK
START DEPOSITORY IN ADDITION TO THE CENTRAL BANK,
COUNTRY DATE SUBCUSTODIAN IF APPLICABLE.
Argentina 1991 Xxxxxx Guaranty Trust Co. of Caja de Valores
N.Y. - Buenos Aires Office
Xxxxxxxxx 0000 ANZ Banking Group Austraclear
Austria 1988 Creditanstalt-Bankverein OeKB-WSB (Wertpapiersammelbank bei der
Oesterreichischen Kontrollbank AG)
Belgium 1977 Xxxxxx Guaranty Trust Co. of CIK (Caisse Interprofessionnelle de
N.Y. - Brussels Office Depots et de Virements de Titres)
Euroclear Clearance System Limited
Brazil 1991 Xxxxxx Guaranty Trust Co. of BOVESPA (Bolsa de Valores de Sao Paolo;
N.Y. - Sao Paulo Office equities)
BVRJ (Bolsa de Valores de Rio de Janeiro,
equities)
CETIP (Central de Custodia e Liquidacao
Financeira de Titulos; corporate bonds)
SELEC (Sistema Especial de Liquidacao e
Custodia; gov't securities)
Canada 1978 Canadian Imperial Bank of CDS (Canadian Depository for Securities)
Commerce
Xxxxx 0000 Xxxxxxxx, N.A.
People's Republic 1992 Hongkong and Shanghai Banking
of China- Corporation
Shanghai and
Shenzhen
Xxxxx Xxxxxxxx 0000 Xxxxxxxxxxxxxx Obchodni Banka, A.S.
Denmark 1985 Den Danske Bank VP (Vaerdipapircentralen; Danish Securities Centre)
Finland 1985 Union Bank of Finland
France 1977 Xxxxxx Guaranty Trust Co. of SICOVAM (Societe Interprofessionnelle Pour La
N.Y. - Paris Office Compensation des Valeurs Mobilieres)
Germany 1977 Xxxxxx Guaranty Trust Co. of DKV (Deutscher Kassenverein)
N.Y. - Frankfurt Office
Greece 1989 National Bank of Greece S.A.
Hong Kong 1978 Hongkong and Shanghai Banking CCASS (Central Clearing and Settlement System)
Corporation
Hungary 1993 Citibank N.A.
India 1993 Hongkong and Shanghai Banking
Corporation
Indonesia 1990 Hongkong and Shanghai Banking
Corporation
Ireland 1988 Allied Irish Banks PLC
Israel 1994 Bank Leumi LE TASE (Tel Aviv Stock Exchange) Clearing House Ltd.
Italy 1977 Xxxxxx Guaranty Trust Co. of N.Y. Monte Titoli S.p.A.
Milan Office
Japan 1977 The Fuji Bank, Limited JASDEC (Japan Securities Depository Center)
JSA (Japan Securities Agent)
Jordan 1994 Citibank, N.A.
Korea 1991 Bank of Seoul KSSC (Korea Securities Settlement
Corporation)
Luxembourg 1992 Banque Internationale A CEDEL (Centrale de Livraison des Valeurs
Luxembourg, S.A. Mobilieres)
Malaysia 1987 Hongkong and Shanghai Banking SCANS (Securities Clearing Automated
Corporation Network Services)
Xxxxxx 0000 Xxxxxxxx, N.A. Indeval
Morocco 1994 Banque Xxxxxxxxxxx xx Xxxxx
Xxxxxxxxxxx 0000 Bank Labouchere nv NECIGEF (Nederlands Centraal Instituut Voor
Giraal Effectenverkeer BV)
New Zealand 1982 ANZ Banking Group Ltd.
Norway 1978 Den Norske Bank VPS (Verdipapirsentralen; Norwegian
Registry of Securities)
Pakistan 1994 Citibank, N.A.
Xxxx 0000 Xxxxxxxx, N.A. CAVAL (Caja de Valores)
Philippines 1990 Hongkong and Shanghai Banking
Corporation
Poland 1993 Bank Handlowy
Portugal 0000 Xxxxx Xxxxxxxx Xxxxx X
Xxxxxxxxx xx Xxxxxx
Xxxxxxxxx 1988 Development Bank of Singapore (CDP) Xxxxxxx Xxxxxxxxxx Xxx
Xxxxx Xxxxxx 0000 First National Bank of Southern
Africa
Spain 1977 Xxxxxx Guaranty Trust Co. of
N.Y. - Madrid Office
Sri Lanka 1992 Hongkong and Shanghai Banking
Corporation
Sweden 1985 Skandinaviska Enskilda Banken VPC (Vaerdepappercentralen; Securities Register Centre)
Switzerland 1977 Bank Leu SEGA (Schweizerische Effekten - Giro AG)
Taiwan 1992 Hongkong and Shanghai Banking
Corporation
Thailand 1988 Hongkong and Shanghai Banking
Corporation
Turkey 1990 Citibank, N.A. Istanbul Stock Exchange Settlement and
Ottoman Bank Custody Company, Inc. (I.M.K.B. Takas ve Saklama A.S.)
United Kingdom 1977 Xxxxxx Guaranty Trust Co. of N.Y. TALISMAN (Transfer, Accounting and
London Office Lodgement for Investors, Stock Management for Jobbers)
CGO (Central Gilts Office)
CMS (Central Money Market Office)
United States of 1977 Xxxxxx Guaranty Trust Co. of The Federal Reserve Bank of New York
America N.Y. The Depository Trust Co.
The Participants Trust Co.
Venezuela 1991 Citibank, N.A.
EXHIBIT (8)
CUSTODY AGREEMENT
This AGREEMENT, dated as of February 22, 1995, by and between TOTAL RETURN
BOND PORTFOLIO (the "Fund"), a portfolio of The Bear Xxxxxxx Funds (the
"Company"), an unincorporated business trust organized under the laws of the
Commonwealth of Massachusetts, and CUSTODIAL TRUST COMPANY, a bank organized and
existing under the laws of the State of New Jersey (the "Custodian").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Fund desires that its Securities, cash and other assets be
held and administered by Custodian pursuant to this Agreement;
WHEREAS, the Fund is an investment portfolio represented by a series of
Shares constituting part of the capital stock of the Company, an open-end
management investment company registered under the 1940 Act (as hereinafter
defined);
WHEREAS, Custodian represents that it is a bank having the qualifications
prescribed in Section 26(a)(i) of the 1940 Act;
NOW, THEREFORE, in consideration of the mutual agreements herein made, the
Fund and Custodian hereby agree as follows:
ARTICLE I
DEFINITIONS
-----------
Whenever used in this Agreement, the following terms, unless the context
otherwise requires, shall mean:
1.1 "AUTHORIZED PERSON" means any Officer or other person duly authorized
-----------------
by resolution of the Board of Directors to give Oral Instructions and Written
Instructions on behalf of the Fund and identified, by name or by office, in
Exhibit A hereto or any person duly designated to do so by an investment adviser
of the Fund specified by the Fund in Exhibit B hereto.
1.2 "BOARD OF DIRECTORS" means the Board of Trustees of the Fund or, when
------------------
permitted under the 1940 Act, the Executive Committee thereof, if any.
1.3 "BOOK-ENTRY SYSTEM" means a book-entry system maintained by a Federal
-----------------
Reserve bank as provided for in Subpart O of Treasury Circular Xx. 000, 00 XXX
306, in Subpart B of 31 CFR Part 350, or in such other book-entry regulations of
federal agencies as are substantially in the form of such Subpart O.
1.4 "BUSINESS DAY" means any day recognized as a settlement day by The
------------
New York Stock Exchange, Inc. and on which banks in the State of New Jersey are
open for business.
1.5 "CUSTODY ACCOUNT" means the account in the name of the Fund, which is
---------------
provided for in Section 3.2 below.
1.6 "ELIGIBLE FOREIGN CUSTODIAN" means any banking institution, trust
--------------------------
company or other entity organized under the laws of a country other than the
United States which is eligible under Rule 17f-5 under the 1940 Act to act as a
sub-custodian for Foreign Securities and other assets of the Fund held outside
the United States.
1.7 "FOREIGN SECURITIES" means Securities as defined in paragraph (c)(1)
------------------
of Rule 17f-5 under the 1940 Act.
-2-
1.8 "FOREIGN SECURITIES DEPOSITORY" means a securities depository or
-----------------------------
clearing agency as defined in subparagraphs (c)(2)(iii) or (iv) of Rule 17f-5
under the 0000 Xxx.
1.9 "1940 ACT" means the Investment Company Act of 1940, as amended.
--------
1.10 "OFFICER" means the President, any Vice President, the Secretary, any
-------
Assistant Secretary, the Treasurer, or any Assistant Treasurer of the Fund.
1.11 "ORAL INSTRUCTIONS" means instructions orally transmitted to and
-----------------
accepted by Custodian which are (a) reasonably believed by Custodian to have
been given by an Authorized Person, (b) recorded and kept among the records of
Custodian made in the ordinary course of business, and (c) orally confirmed by
Custodian.
1.12 "PROPER INSTRUCTIONS" means Oral Instructions or Written
-------------------
Instructions. Proper Instructions may be continuing Written Instructions when
deemed appropriate by both parties.
1.13 "SECURITIES" includes, without limitation, common and preferred
----------
stocks, bonds, call options, put options, debentures, notes, bank certificates
of deposit, forward contracts, futures contracts (including those related to
indexes), options on futures contracts or indexes, bankers' acceptances,
mortgage-backed securities or other obligations, and any certificates, receipts,
warrants or other instruments or documents representing rights to receive,
purchase or subscribe for the same, or evidencing or representing any other
rights or interests therein, or any similar property or assets that Custodian
has the facilities to clear and to service.
1.14 "SECURITIES DEPOSITORY" means The Depository Trust Company and
---------------------
(provided that Custodian has received a copy of a
-3-
resolution of the Board of Directors of the Fund, certified by an Officer,
specifically approving the use thereof as a depository for the Fund) any other
clearing agency registered with the Securities and Exchange Commission under
Section 17A of the Securities Exchange Act of 1934 (the "1934 Act"), which acts
as a system for the central handling and deposit of Securities where all
Securities of any particular class or series of an issuer deposited within the
system are treated as fungible and may be transferred or pledged by bookkeeping
entry without physical delivery of the Securities.
1.15 "SHARES" means the shares into which the capital stock of the Fund is
------
divided.
1.16 "WRITTEN INSTRUCTIONS" means (a) written communications received by
--------------------
Custodian and signed by two persons reasonably believed by Custodian to be
Authorized Persons, or (b) communications by telex or any other such system from
two persons reasonably believed by Custodian to be Authorized Persons, or (c)
communications between electro-mechanical or electronic devices.
ARTICLE II
APPOINTMENT OF CUSTODIAN
------------------------
2.1 APPOINTMENT. The Fund hereby appoints Custodian as custodian of all
-----------
such Securities, cash and other assets as may be acceptable to Custodian and
from time to time delivered to it by the Fund or others for the account of the
Fund.
2.2 ACCEPTANCE. Custodian hereby accepts appointment as such custodian
----------
and agrees to perform the duties thereof as hereinafter set forth.
-4-
ARTICLE III
CUSTODY OF CASH AND SECURITIES
------------------------------
3.1 SEGREGATION. All Securities and non-cash property of the Fund in the
-----------
possession of Custodian (other than Securities maintained by Custodian in a
Securities Depository or Book-Entry System) shall be physically segregated from
other Securities and non-cash property in the possession of Custodian and shall
be identified as belonging to the Fund.
3.2 CUSTODY ACCOUNT. (a) Custodian shall open and maintain in its trust
---------------
department a custody account in the name of the Fund, subject only to draft or
order of Custodian, in which Custodian shall enter and carry all Securities,
cash and other assets of the Fund which are delivered to Custodian and accepted
by it. Custodian shall not be under any duty or obligation to require the Fund
to deliver to it any Securities or funds owned by the Fund and shall have no
responsibility or liability for or on account of Securities or funds not so
delivered.
(b) If Custodian at any time fails to receive any of the documents
referred to in Section 3.5(a) below, then, until such time as it receives such
document, it shall not be obligated to receive any Securities of the Fund into
the Custody Account and shall be entitled to return to the Fund any Securities
of the Fund that it is holding.
(c) Custodian may, but shall not be obligated to, hold Securities
that may be held only in physical form.
(d) Custodian is authorized to disclose the name, address and
securities positions of the Fund to the issuers of such securities when
requested by them to do so.
-5-
3.3 APPOINTMENT OF AGENTS. (a) Custodian may employ suitable agents,
---------------------
which may include affiliates of Custodian, such as Bear, Xxxxxxx & Co. Inc. or
Bear, Xxxxxxx Securities Corp., both of which are registered broker-dealers.
The appointment of any agent pursuant to this Section 3.3(a) shall not relieve
Custodian of any of its obligations or liabilities under this Agreement.
However, no Book-Entry System, Securities Depository, Foreign Securities
Depository or other securities depository or clearing agency (whether foreign or
domestic) which it is or may become standard market practice to use for the
comparison and settlement of trades in securities shall be an agent or sub-
contractor of Custodian for purposes of this Section 3.3(a) or otherwise.
(b) In its discretion, Custodian may appoint, and at any time remove,
any domestic bank or trust company which is qualified to act as a custodian
under the 1940 Act as sub-custodian to hold Securities and cash of the Fund and
to carry out such other provisions of this Agreement as it may determine, and
may also open and maintain one or more banking accounts with such a bank or
trust company (any such accounts to be in the name of Custodian and subject only
to its draft or order), provided, however, that the appointment of any such
agent or opening and maintenance of any such accounts shall be at Custodian's
expense and shall not relieve Custodian of any of its obligations or liabilities
under this Agreement.
(c) Upon receipt of Written Instructions to do so and at the Fund's
expense, Custodian shall appoint as sub-custodian such domestic bank or trust
company as is named therein, provided that (i) such bank or trust company is
qualified to act as a custodian under the 1940 Act, and (ii) notwithstanding
anything to the contrary in Section 7.1 below or elsewhere in this Agreement,
Custodian shall have no greater liability to the Fund for the actions or
omissions of any such sub-custodian than any such sub-custodian has to
Custodian, and Custodian shall not be required
-6-
to discharge any such liability which may be imposed on it unless and until such
sub-custodian has effectively indemnified Custodian against it or has otherwise
discharged its liability to Custodian in full.
3.4 DELIVERY OF ASSETS TO CUSTODIAN. The Fund shall deliver to Custodian
-------------------------------
the Fund's Securities, cash and other assets, which are acceptable to Custodian,
including (a) payments of income, payments of principal and capital
distributions received by the Fund with respect to such Securities, cash or
other assets owned by the Fund at any time during the term of this Agreement,
and (b) cash received by the Fund for the issuance, at any time during such
term, of Shares. Custodian shall not be responsible for such Securities, cash
or other assets until actually received by it.
3.5 SECURITIES DEPOSITORIES AND BOOK-ENTRY SYSTEMS. Custodian may
----------------------------------------------
deposit and/or maintain Securities of the Fund in a Securities Depository or in
a Book-Entry System, subject to the following provisions:
(a) Prior to a deposit of Securities of the Fund in any Securities
Depository or Book-Entry System, the Fund shall deliver to Custodian a
resolution of the Board of Directors of the Fund, certified by an Officer,
authorizing and instructing Custodian (and any sub-custodian appointed pursuant
to Section 3.3 above) on an on-going basis to deposit in such Securities
Depository or Book-Entry System all Securities eligible for deposit therein and
to make use of such Securities Depository or Book-Entry System to the extent
possible and practical in connection with its performance hereunder (or under
the applicable sub-custody agreement in the case of such sub-custodian),
including, without limitation, in connection with settlements of purchases and
sales of Securities, loans of Securities, and deliveries and returns of
collateral consisting of Securities.
-7-
(b) Securities of the Fund kept in a Book-Entry System or Securities
Depository shall be kept in an account ("Depository Account") of Custodian in
such Book-Entry System or Securities Depository which includes only assets held
by Custodian as a fiduciary, custodian or otherwise for customers.
(c) The records of Custodian with respect to Securities of the Fund
maintained in a Book-Entry System or Securities Depository shall at all times
identify such Securities as belonging to the Fund.
(d) If Securities purchased by the Fund are to be held in a Book-Entry
System or Securities Depository, Custodian shall pay for such Securities upon
(i) receipt of advice from the Book-Entry System or Securities Depository that
such Securities have been transferred to the Depository Account, and (ii) the
making of an entry on the records of Custodian to reflect such payment and
transfer for the account of the Fund. If Securities sold by the Fund are held
in a Book-Entry System or Securities Depository, Custodian shall transfer such
Securities upon (i) receipt of advice from the Book-Entry System or Securities
Depository that payment for such Securities has been transferred to the
Depository Account, and (ii) the making of an entry on the records of Custodian
to reflect such transfer and payment for the account of the Fund.
(e) Custodian shall provide the Fund with copies of any report
obtained by Custodian from a Book-Entry System or Securities Depository in which
Securities of the Fund are kept on the internal accounting controls and
procedures for safeguarding Securities deposited in such Book-Entry System or
Securities Depository.
(f) At its election, the Fund shall be subrogated to the rights of
Custodian with respect to any claim against a Book-Entry System or Securities
Depository or any other person for any loss or
-8-
damage to the Fund arising from the use of such Book-Entry System or Securities
Depository, if and to the extent that the Fund has not been made whole for any
such loss or damage.
3.6 DISBURSEMENT OF MONEYS FROM THE CUSTODY ACCOUNT. Upon receipt of
-----------------------------------------------
Proper Instructions, Custodian shall disburse moneys from the Custody Account,
but only in the following cases:
(a) For the purchase of Securities for the Fund but only (i) in the
case of Securities (other than options on Securities, futures contracts and
options on futures contracts), against the delivery to Custodian (or any sub-
custodian appointed pursuant to Section 3.3 above) of such Securities registered
as provided in Section 3.9 below or in proper form for transfer or, if the
purchase of such Securities is effected through a Book-Entry System or
Securities Depository, in accordance with the conditions set forth in Section
3.5 above; (ii) in the case of options on Securities, against delivery to
Custodian (or such sub-custodian) of such receipts as are required by the
customs prevailing among dealers in such options; (iii) in the case of futures
contracts and options on futures contracts, against delivery to Custodian (or
such sub-custodian) of evidence of title thereto in favor of the Fund, the
Custodian, any such sub-custodian or any nominee referred to in Section 3.9
below; and (iv) in the case of repurchase or reverse repurchase agreements
entered into by the Fund, against delivery of the purchased Securities either in
certificate form or through an entry crediting Custodian's account at a Book-
Entry System or Securities Depository with such Securities;
(b) In connection with the conversion, exchange or surrender, as set
forth in Section 3.7(f) below, of Securities owned by the Fund;
(c) For the payment of any dividends or capital gain distributions
declared by the Fund;
-9-
(d) In payment of the redemption price of Shares as provided in
Article VI below;
(e) For the payment of any expense or liability incurred by the Fund,
including but not limited to the following payments for the account of the Fund:
interest, taxes, administration, investment management, investment advisory,
accounting, auditing, transfer agent, custodian, trustee and legal fees; and
other operating expenses of the Fund; in all cases, whether or not such expenses
are to be in whole or in part capitalized or treated as deferred expenses;
(f) For transfer in accordance with the provisions of any agreement
among the Fund, Custodian and a broker-dealer, relating to compliance with rules
of The Options Clearing Corporation and of any registered national securities
exchange (or of any similar organization or organizations) regarding escrow or
other arrangements in connection with transactions by the Fund;
(g) For transfer in accordance with the provisions of any agreement
among the Fund, Custodian, and a futures commission merchant, relating to
compliance with the rules of the Commodity Futures Trading Commission and/or any
contract market (or any similar organization or organizations) regarding account
deposits in connection with transactions by the Fund;
(h) For the funding of any uncertificated time deposit or other
interest-bearing account with any banking institution (including Custodian), but
only if the payment instructions to Custodian detail specific Securities to be
acquired;
(i) For the purchase from a bank or other financial institution of
loan participations, but only if Custodian has in its possession a copy of the
agreement between the Fund and such bank or other financial institution with
respect to the purchase of
-10-
such loan participations and the payment instructions to Custodian detail
specific assets to be acquired;
(j) For the purchase and sale of foreign currencies or options to
purchase and sell foreign currencies for spot and future delivery on behalf and
for the account of the Fund pursuant to contracts with such banks and other
financial institutions, including Custodian, any sub-custodian and any affiliate
of Custodian, as principal, as are approved and authorized by the Fund, but only
if the payment instructions to Custodian detail specific assets to be acquired;
(k) For transfer to a broker-dealer registered under the 1934 Act or
in accordance with the provisions of any agreement among the Fund, Custodian and
such a broker-dealer as margin for a short sale of Securities;
(l) For the payment of the amounts of dividends received with respect
to Securities sold short; and
(m) For any other proper purpose, but only upon receipt, in addition
to Proper Instructions, of a copy of a resolution of the Board of Directors,
certified by an Officer, specifying the amount and purpose of such payment,
declaring such purpose to be a proper purpose of the Fund, and naming the person
or persons to whom such payment is to be made.
3.7 DELIVERY OF SECURITIES FROM THE CUSTODY ACCOUNT. Upon receipt of
-----------------------------------------------
Proper Instructions, Custodian shall release and deliver Securities of the Fund
from the Custody Account but only in the following cases:
(a) Upon the sale of Securities for the account of the Fund but,
subject to Section 5.3 below, only against receipt of
-11-
payment therefor in cash, by certified or cashiers' check or bank credit;
(b) In the case of a sale effected through a Book-Entry System or
Securities Depository, in accordance with the provisions of Section 3.5 above;
(c) To an offeror's depository agent in connection with tender or
other similar offers for Securities of the Fund; provided that, in any such
case, the cash or other consideration is to be delivered to Custodian;
(d) To the issuer thereof or its agent (i) for transfer into the name
of the Fund or any of the nominees referred to in Section 3.9 below, or (ii) for
exchange for a different number of certificates or other evidence representing
the same aggregate face amount or number of units; provided that, in any such
case, the new Securities are to be delivered to Custodian;
(e) To the broker selling Securities, for examination in accordance
with the "street delivery" custom;
(f) For exchange or conversion pursuant to any plan of merger,
consolidation, recapitalization, reorganization or readjustment of the issuer of
such Securities, or pursuant to provisions for conversion contained in such
Securities, or pursuant to any deposit agreement, including surrender or receipt
of underlying Securities in connection with the issuance or cancellation of
depository receipts; provided that, in any such case, the new Securities and
cash, if any, are to be delivered to Custodian;
(g) Upon receipt of payment therefor pursuant to any repurchase
agreement entered into by the Fund;
-12-
(h) In the case of warrants, rights or similar Securities, upon the
exercise thereof, provided that, in any such case, the new Securities and cash,
if any, are to be delivered to Custodian;
(i) For delivery in connection with any loans of Securities pursuant
to any securities loan agreement entered into by the Fund, but only against
receipt of such collateral as is required under such securities loan agreement;
(j) For delivery as security in connection with any borrowings by the
Fund requiring a pledge of assets by the Fund, but only against receipt by
Custodian of the amounts borrowed;
(k) Pursuant to any authorized plan of liquidation, reorganization,
merger, consolidation or recapitalization of the Fund;
(l) For delivery in accordance with the provisions of any agreement
among the Fund, Custodian and a broker-dealer, relating to compliance with the
rules of The Options Clearing Corporation and of any registered national
securities exchange (or of any similar organization or organizations) regarding
escrow or other arrangements in connection with transactions by the Fund;
(m) For delivery in accordance with the provisions of any agreement
among the Fund, Custodian, and a futures commission merchant, relating to
compliance with the rules of the Commodity Futures Trading Commission and/or any
contract market (or any similar organization or organizations) regarding account
deposits in connection with transactions by the Fund;
(n) For delivery to a broker-dealer registered under the 1934 Act or
in accordance with the provisions of any agreement
-13-
among the Fund, Custodian and such a broker-dealer as margin for a short sale of
Securities;
(o) For delivery (by a Foreign Sub-custodian or an agent of Custodian)
to the depository used by an issuer of American Depositary Receipts or
International Depositary Receipts (hereinafter collectively referred to as
"ADRs") for such Securities against a written receipt therefor adequately
describing such Securities and written evidence satisfactory to the Foreign Sub-
custodian or agent that the depository has acknowledged receipt of instructions
to issue with respect to such Securities ADRs in the name of the Custodian, or a
nominee of the Custodian, for delivery to the Custodian;
(p) To deliver ADRs to the issuer thereof against a written receipt
therefor adequately describing the ADR's delivered and written evidence
satisfactory to the Custodian that the issuer of the ADRs has acknowledged the
receipt of instructions to cause its depository to deliver the Securities
underlying such ADRs to a Foreign Sub-custodian or agent of Custodian; or
(q) For any other proper purpose, but only upon receipt, in addition
to Proper Instructions, of a copy of a resolution of the Board of Directors,
certified by an Officer, specifying the Securities to be delivered, setting
forth the purpose for which such delivery is to be made, declaring such purpose
to be a proper purpose of the Fund, and naming the person or persons to whom
delivery of such Securities is to be made.
3.8 ACTIONS NOT REQUIRING PROPER INSTRUCTIONS. Unless otherwise
-----------------------------------------
instructed by the Fund, Custodian shall with respect to all Securities held for
the Fund:
-14-
(a) Subject to Section 8.4 below, collect on a timely basis all income
and other payments to which the Fund is entitled either by law or pursuant to
custom in the securities business;
(b) Subject to Section 8.4 below, collect on a timely basis the amount
payable upon or with respect to all Securities and other assets which may mature
or be called, redeemed, retired or otherwise become payable;
(c) Endorse for collection, in the name of the Fund, checks, drafts
and other negotiable instruments;
(d) Surrender interim receipts or Securities in temporary form for
Securities in definitive form;
(e) Execute, as custodian, any necessary declarations or certificates
of ownership under the federal income tax laws or the laws or regulations of any
other taxing authority now or hereafter in effect, and prepare and submit
reports to the Internal Revenue Service ("IRS") and to the Fund at such time, in
such manner and containing such information as is prescribed by the IRS;
(f) Hold for the Fund all rights and similar securities issued with
respect to Securities of the Fund; and
(g) In general, attend to all non-discretionary details in connection
with the sale, exchange, substitution, purchase, transfer and other dealings
with Securities and assets of the Fund.
3.9 REGISTRATION AND TRANSFER OF SECURITIES. All Securities held for the
---------------------------------------
Fund that are issuable only in bearer form shall be held by Custodian in that
form, provided that any such Securities shall be held in a Book-Entry System if
eligible therefor. All other Securities held for the Fund may be registered in
the name of Custodian as agent, any sub-custodian appointed pursuant to Section
-15-
3.3 above, any Securities Depository, any Foreign Sub-custodian or Foreign
Securities Depository (in the case of Foreign Securities), or any nominee or
agent of any of them. The Fund shall furnish to Custodian appropriate
instruments to enable Custodian to hold or deliver in proper form for transfer,
or to register as in this Section 3.9 provided, any Securities delivered to
Custodian which are registered in the name of the Fund.
3.10 RECORDS. (a) Custodian shall maintain complete and accurate records
-------
with respect to Securities, cash or other property held for the Fund, including
(i) journals or other records of original entry containing an itemized daily
record in detail of all receipts and deliveries of Securities and all receipts
and disbursements of cash; (ii) ledgers (or other records) reflecting (A)
Securities in transfer, if any, (B) Securities in physical possession, (C)
monies and Securities borrowed and monies and Securities loaned (together with a
record of the collateral therefor and substitutions of such collateral), (D)
dividends and interest received, and (E) dividends receivable and interest
accrued; and (iii) cancelled checks and bank records related thereto. Custodian
shall keep such other books and records with respect to Securities, cash and
other property of the Fund which is held hereunder as the Fund may reasonably
request.
(b) All such books and records maintained by Custodian shall (i) be
maintained in a form acceptable to the Fund and in compliance with rules and
regulations of the Securities and Exchange Commission, (ii) be the property of
the Fund and at all times during the regular business hours of Custodian be made
available upon request for inspection by duly authorized officers, employees or
agents of the Fund and employees or agents of the Securities and Exchange
Commission, and (iii) if required to be maintained by Rule 31a-1 under the 1940
Act, be preserved for the periods prescribed in Rule 31a-2 under the 1940 Act.
-16-
3.11 REPORTS BY CUSTODIAN. Custodian shall furnish the Fund with a daily
--------------------
activity statement, including a summary of all transfers to or from the Custody
Account, on the day following such transfers. At least monthly and from time to
time, Custodian shall furnish the Fund with a detailed statement of the
Securities and moneys held for the Fund under this Agreement.
3.12 OTHER REPORTS BY CUSTODIAN. Custodian shall provide the Fund with
--------------------------
such reports as the Fund may reasonably request from time to time on the
internal accounting controls and procedures for safeguarding Securities which
are employed by Custodian or any sub-custodian appointed pursuant to Section 3.3
above.
3.13 PROXIES AND OTHER MATERIALS. Unless otherwise instructed by the
---------------------------
Fund, Custodian shall promptly deliver to the Fund (at the address set forth in
Article XV below) all notices of meetings, proxies and proxy materials which it
receives regarding Securities held in the Custody Account. Before delivering
them to the Fund, Custodian shall cause all proxies relating to such Securities
which are not registered in the name of the Fund, or a nominee thereof, to be
promptly executed by the registered holder of such Securities, without
indication of the manner in which such proxies are to be voted. Unless otherwise
instructed by the Fund, neither Custodian nor any of its agents shall exercise
any voting rights with respect to Securities held hereunder.
3.14 INFORMATION ON CORPORATE ACTIONS. Custodian shall promptly transmit
--------------------------------
to the Fund (at the address set forth in Article XV below) all written
information received by Custodian from issuers of Securities held in the Custody
Account. With respect to tender or exchange offers for such Securities,
Custodian shall promptly transmit to the Fund all written information received
by it from the issuers of the Securities whose tender or exchange is sought and
by the party (or its agents) making the tender or exchange offer. If the Fund
desires to take action with respect to
-17-
any tender offer, exchange offer or other similar transaction, the Fund shall
notify Custodian (a) in the case of Foreign Securities, such number of Business
Days prior to the date on which Custodian is to take such action (which number
of days is in the Custodian's sole discretion) as will allow Custodian to take
such action in the relevant local market in a timely fashion, and (b) in the
case of all other Securities, at least five Business Days prior to the date on
which Custodian is to take such action.
3.15 CO-OPERATION. Custodian shall cooperate with and supply necessary
------------
information to the entity or entities appointed by the Fund to keep the books of
account of the Fund and/or to compute the value of the assets of the Fund.
ARTICLE IV
DUTIES OF CUSTODIAN WITH
RESPECT TO PROPERTY OF
THE FUND HELD OUTSIDE THE UNITED STATES
---------------------------------------
4.1 APPOINTMENT OF FOREIGN SUB-CUSTODIANS. Custodian may appoint sub-
-------------------------------------
custodians pursuant to Section 3.3 hereof or Eligible Foreign Custodians in
accordance with Rule 17f-5 under the 1940 Act as Foreign Sub-custodians
hereunder for the Fund's Securities and other assets maintained outside the
United States. Upon receipt of Written Instructions from the Fund to do so, the
Custodian shall cease the employment of any Foreign Sub-custodian for
maintaining custody of the Fund's assets.
4.2 ASSETS TO BE HELD. The Custodian shall limit the Securities and
-----------------
other assets maintained in the custody of an Eligible Foreign Custodian to: (a)
Foreign Securities, and (b) cash and cash equivalents in such amounts as the
Fund may determine.
4.3 FOREIGN SECURITIES DEPOSITORIES. Custodian or any Foreign Sub-
-------------------------------
custodian employed by it may maintain assets of the
-18-
Fund in Foreign Securities Depositories in accordance with Rule 17f-5 under the
1940 Act.
4.4 AGREEMENTS WITH FOREIGN SUB-CUSTODIANS. Fund shall approve in
--------------------------------------
writing (a) the appointment of each Foreign Sub-custodian and the agreement
pursuant to which the Custodian employs such Foreign Sub-custodian and (b) for
the appointment of each Eligible Foreign Custodian as a Foreign Sub-custodian,
the country or countries in which such Foreign Sub-custodian is authorized to
hold Securities, cash and other property of the Fund.
4.5 APPROVED FOREIGN SUB-CUSTODIANS. (a) Those Foreign Sub-custodians
-------------------------------
and the countries where and the Foreign Securities Depositories through which
they or the Custodian may hold Securities, cash and other property of the Fund
which the Fund has approved to date are set forth on Exhibit D hereto. Exhibit
D shall be amended from time to time as Foreign Sub-custodians, countries and/or
Foreign Securities Depositories are changed, added or deleted. The Fund shall
be responsible for informing the Custodian sufficiently in advance of a proposed
investment which is to be held in a country not listed in Exhibit E in order to
allow the Fund to give the approval required by Section 4.4 hereof and for
Custodian to put the appropriate arrangements in place with a Foreign Sub-
custodian.
(b) If the Fund invests in a Security to be held pursuant to this
Article before the foregoing procedures have been completed, such Security may
be held by such agent as Custodian may select, and Custodian shall bear no
liability to Fund for the actions of such agent, except to the extent Custodian
shall have recovered from such agent for any damages caused to Fund by such
agent.
4.6 REPORTS BY CUSTODIAN. Custodian shall supply to the Fund from time
--------------------
to time, as mutually agreed upon, reports in respect
-19-
of the safekeeping of the Securities and other assets of the Fund held by
Foreign Sub-custodians, including, but not limited to, advices or notifications
of transfers of Securities to or from the accounts maintained by Foreign Sub-
custodians for the Custodian on behalf of the Fund.
4.7 TRANSACTIONS IN FOREIGN CUSTODY ACCOUNT. (a) Upon receipt of Proper
---------------------------------------
Instructions given in any of the cases specified in Section 3.7 above, Custodian
shall cause the Foreign Sub-custodians to transfer, exchange or deliver Foreign
Securities owned by the Fund, subject to all local laws, regulations, customs,
procedures and practices applicable in the relevant local market; and
(b) Upon receipt of Proper Instructions given in any of the cases
specified in Section 3.6 above, Custodian shall cause the Foreign Sub-custodians
to pay out monies of the Fund, subject to all local laws, regulations, customs,
procedures and practices applicable in the relevant local market.
4.8 LIABILITY OF FOREIGN SUB-CUSTODIANS. The agreement pursuant to which
-----------------------------------
the Custodian employs a Foreign Sub-custodian shall require such Foreign Sub-
custodian to exercise reasonable care in the performance of its duties and shall
hold such Foreign sub-custodian responsible for any direct loss or damage
arising out of any willful misfeasance, bad faith or negligence of such Foreign
Sub-custodian in the performance of its obligations under such agreement or out
of its reckless disregard of such obligations. At its election, the Fund shall
be subrogated to the rights of Custodian with respect to any claims against a
Foreign Sub-custodian as a consequence of any such loss or damage if and to the
extent that the Fund has not been made whole for any such loss or damage.
-20-
4.9 LIABILITY OF CUSTODIAN. Notwithstanding anything to the contrary in
----------------------
Section 8.1 below or elsewhere in this Agreement, Custodian shall have no
greater liability to the Fund for the actions or omissions of any Foreign Sub-
custodian than any such Foreign Sub-custodian has to Custodian, and Custodian
shall not be required to discharge any such liability which may be imposed on it
unless and until such Foreign Sub-custodian has effectively indemnified
Custodian against it or has otherwise discharged its liability to Custodian in
full. Custodian shall have no liability for any loss or damage resulting from
acts or omissions of any Foreign Sub-custodian arising out of or caused,
directly or indirectly, by circumstances beyond such Foreign Sub-custodian's
reasonable control, including, without limitation, sovereign risk, as described
in Section 8.7, or "force majeure", as covered in Article X.
4.10 MONITORING RESPONSIBILITIES. Upon the request of the Fund, Custodian
---------------------------
shall annually furnish to the Fund information concerning all Foreign Sub-
custodians hereunder which shall be similar in kind and scope to that furnished
to the Fund in connection with the initial approval by the Fund of the
agreements pursuant to which Custodian employs such Foreign Sub-custodians or as
otherwise required by Rule 17f-5 under the 1940 Act.
4.11 TAX RECLAIMS. Upon the written request of the Fund, Custodian shall
------------
exercise, on behalf of the Fund, tax reclaim rights of Fund which arise in
connection with Foreign Securities in the Custody Account.
ARTICLE V
PURCHASE AND SALE OF INVESTMENTS OF THE FUND
--------------------------------------------
5.1 PURCHASE OF SECURITIES. Promptly upon each purchase of Securities
----------------------
for the Fund, Written Instructions shall be delivered to Custodian, specifying
(a) the name of the issuer or writer of such
-21-
Securities, and the title or other description thereof, (b) the number of
shares, principal amount (and accrued interest, if any), or other units
purchased, (c) the date of purchase and settlement, (d) the purchase price per
unit, (e) the total amount payable upon such purchase, and (f) the name of the
person to whom such amount is payable. Custodian shall upon receipt of such
Securities purchased by the Fund (or, if the Securities are transferred by means
of a private placement transaction, upon the receipt of such Securities or
payment instructions to Custodian which detail specific Securities to be
acquired) pay out of the moneys held for the account of the Fund the total
amount specified in such Written Instructions to the person named therein.
Custodian shall not be under any obligation to pay out moneys to cover the cost
of a purchase of Securities or other assets for the Fund if there is
insufficient cash available in the Custody Account.
5.2 SALE OF SECURITIES. Promptly upon each sale of Securities by the
------------------
Fund, Written Instructions shall be delivered to Custodian, specifying (a) the
name of the issuer or writer of such Securities, and the title or other
description thereof, (b) the number of shares, principal amount (and accrued
interest, if any), or other units sold, (c) the date of sale and settlement, (d)
the sale price per unit, (e) the total amount payable upon such sale, and (f)
the person to whom such Securities are to be delivered. Upon receipt of the
total amount payable to the Fund as specified in such Written Instructions,
Custodian shall deliver such Securities to the person specified in such Written
Instructions. Subject to the foregoing, Custodian may accept payment in such
form as shall be satisfactory to it, and may deliver Securities and arrange for
payment in accordance with the customs prevailing among dealers in Securities.
5.3 DELIVERY OF SECURITIES SOLD. Notwithstanding Section 5.2 above or
---------------------------
any other provision of this Agreement and subject, in the case of Foreign
Securities, to all local laws, regulations,
-22-
customs, procedures and practices applicable in the relevant local market,
Custodian, when instructed to deliver Securities against payment, shall be
entitled, but only if in accordance with generally accepted market practice, to
deliver such Securities prior to actual receipt of final payment therefor and,
exclusively in the case of Securities in physical form, to deliver such
Securities prior to receipt of payment. In any such case, the Fund shall bear
the risk that final payment for such Securities may not be made or that such
Securities may be returned or otherwise held or disposed of by or through the
person to whom they were delivered, and Custodian shall have no liability for
any of the foregoing.
5.4 PAYMENT FOR SECURITIES SOLD, ETC. In its sole discretion and from
---------------------------------
time to time, Custodian may credit the Custody Account, prior to actual receipt
of final payment thereof, with (a) proceeds from the sale of Securities which it
has been instructed to deliver against payment, (b) proceeds from the redemption
of Securities or other assets of the Fund, and (c) income from cash, Securities
or other assets of the Fund. Any such credit shall be conditional upon actual
receipt by Custodian of final payment and may be reversed if final payment is
not actually received in full. Custodian may, in its sole discretion and from
time to time, permit the Fund to use funds so credited to the Custody Account in
anticipation of actual receipt of final payment. Any such funds shall be
repayable immediately upon demand made by Custodian at any time prior to the
actual receipt of all final payments in anticipation of which funds were
credited to the Custody Account.
5.5 FINAL PAYMENT. For purposes of this Agreement, "final payment" means
-------------
payment in funds which are (or have become) immediately available, under
applicable law are irreversible, and are not subject to any security interest,
xxxx, xxxx or other encumbrance.
-23-
ARTICLE VI
REDEMPTION OF FUND SHARES
-------------------------
6.1 TRANSFER OF FUNDS. From such funds as may be available for the
-----------------
purpose in the Custody Account, and upon receipt of Proper Instructions
specifying that the funds are required to redeem Shares on account of the Fund,
Custodian shall wire each amount specified in such Proper Instructions to or
through such bank as the Fund may designate therein with respect to such amount.
6.2 NO DUTY REGARDING PAYING BANKS. Custodian shall not be responsible
------------------------------
for the payment or distribution by any bank designated in Proper Instructions
given pursuant to Section 6.1 above of any amount paid by Custodian to such bank
in accordance with such Proper Instructions.
ARTICLE VII
SEGREGATED ACCOUNTS
-------------------
Upon receipt of Proper Instructions, Custodian shall establish and maintain
a segregated account or accounts for and on behalf of the Fund, into which
account or accounts may be transferred cash and/or Securities, including
Securities maintained in a Depository Account:
(a) in accordance with the provisions of any agreement among the Fund,
Custodian and a broker-dealer (or any futures commission merchant), relating to
compliance with the rules of The Options Clearing Corporation or 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 Fund,
-24-
(b) for purposes of segregating cash or Securities in connection with
securities options purchased or written by the Fund or in connection with
financial futures contracts (or options thereon) purchased or sold by the Fund,
(c) which constitute collateral for loans of Securities made by the
Fund,
(d) for purposes of compliance by the Fund with requirements under the
1940 Act for the maintenance of segregated accounts by registered investment
companies in connection with reverse repurchase agreements, when-issued, delayed
delivery and firm commitment transactions, and short sales of securities, and
(e) for other proper purposes, but only upon receipt of, in addition
to Proper Instructions, a copy of a resolution of the Board of Directors,
certified by an Officer, setting forth the purpose or purposes of such
segregated account and declaring such purposes to be proper purposes of the
Fund.
ARTICLE VIII
CONCERNING THE CUSTODIAN
------------------------
8.1 STANDARD OF CARE. Custodian shall be held to the exercise of
----------------
reasonable care in carrying out its obligations under this Agreement, and shall
be without liability to the Fund for any loss, damage, cost, expense (including
attorneys' fees and disbursements), liability or claim which does not arise from
willful misfeasance, bad faith or negligence on the part of Custodian or
reckless disregard by Custodian of its obligations under this Agreement.
Custodian shall be entitled to rely on and may act upon advice of counsel on all
matters, and shall be without liability for any action reasonably taken or
omitted pursuant to such advice. In no event shall Custodian be liable for
special or consequential damages or be liable in any manner whatsoever for any
-25-
action taken or omitted upon instructions from the Fund or any agent of the
Fund. Custodian shall not be under any obligation at any time to ascertain
whether the Fund is in compliance with the 1940 Act, the regulations thereunder,
the provisions of its charter documents or by-laws, or its investment
objectives, policies and limitations as in effect from time to time.
8.2 ACTUAL COLLECTION REQUIRED. Custodian shall not be liable for, or
--------------------------
considered to be the custodian of, any cash belonging to the Fund or any money
represented by a check, draft or other instrument for the payment of money,
until Custodian or its agents actually receive such cash or collect on such
instrument.
8.3 NO RESPONSIBILITY FOR TITLE, ETC. So long as and to the extent that
---------------------------------
it is in the exercise of reasonable care, Custodian shall not be responsible for
the title, validity or genuineness of any property or evidence of title thereto
received or delivered by it or its agents.
8.4 LIMITATION ON DUTY TO COLLECT. Custodian shall promptly notify the
-----------------------------
Fund whenever any money or property due and payable from or on account of any
Securities held hereunder for the Fund is not timely received by it. Custodian
shall not, however, be required to enforce collection, by legal means or
otherwise, of any such money or other property not paid when due, but shall
receive the proceeds of such collections as may be effected by it or its agents
in the ordinary course of Custodian's custody and safekeeping business or of the
custody and safekeeping business of such agents.
8.5 EXPRESS DUTIES ONLY. Custodian shall have no duties or obligations
-------------------
whatsoever except such duties and obligations as are specifically set forth in
this Agreement, and no covenant or obligation shall be implied in this Agreement
against Custodian. Custodian shall have no discretion whatsoever with respect to
the
-26-
management, disposition or investment of the Custody Account and is not a
fiduciary to the Fund.
8.6 COMPLIANCE WITH LAWS. Custodian undertakes to comply with all
--------------------
applicable requirements of the Securities Act of 1933, the Securities Exchange
Act of 1934, the 1940 Act and the Commodities Exchange Act and any laws, rules
and regulations of governmental authorities having jurisdiction with respect to
the duties to be performed by Custodian hereunder. Except as specifically set
forth herein, Custodian assumes no responsibility for such compliance by the
Fund.
8.7 NO LIABILITY FOR SOVEREIGN RISK. Custodian shall not be liable for
-------------------------------
any loss involving any Securities, currencies, deposits or other property of the
Fund, whether maintained by it, a Foreign Sub-custodian, a Foreign Securities
Depository, an agent of Custodian or a Foreign Sub-custodian or a bank, or for
any loss arising from a foreign currency transaction or contract, where the loss
results from a sovereign risk or where the entity maintaining such Securities,
currencies, deposits or other property of the Fund, whether Custodian, a Foreign
Sub-custodian, a Foreign Securities Depository, an agent of Custodian or a
Foreign Sub-custodian or a bank, has exercised reasonable care maintaining such
property or in connection with the transaction involving such property. For
purposes of this Agreement, "sovereign risk" shall mean nationalization,
expropriation, devaluation, revaluation, confiscation, seizure, cancellation,
destruction or similar action by any governmental authority, de facto or de
jure; or enactment, promulgation, imposition or enforcement by any such
governmental authority of currency restrictions, exchange controls, taxes,
levies or other charges affecting the Fund's property; or acts of war,
terrorism, insurrection or revolution; or any other act or event beyond the
control of the Foreign Sub-custodian, the Foreign Securities Depository or the
agent of any of them.
-27-
ARTICLE IX
INDEMNIFICATION
---------------
9.1 INDEMNIFICATION. The Fund shall indemnify and hold harmless
---------------
Custodian, any sub-custodian and any nominee of Custodian or any sub-custodian,
from and against any loss, damages, cost, expense (including attorneys' fees and
disbursements), liability (including, without limitation, liability arising
under the Securities Act of 1933, the 1934 Act, the 1940 Act, and any federal,
state or foreign securities and/or banking laws) or claim arising directly or
indirectly (a) from the fact that Securities are registered in the name of any
such nominee, or (b) from any action or inaction by Custodian or such sub-
custodian or other agent (i) at the request or direction of or in reliance on
the advice of the Fund or any of its agents, or (ii) upon Proper Instructions,
or (c) generally, from the performance of its obligations under this Agreement,
provided that Custodian, any sub-custodian or any nominee of either of them
shall not be indemnified and held harmless from and against any such loss,
damage, cost, expense, liability or claim arising from Custodian's willful
misfeasance, bad faith, negligence or reckless disregard of its obligations
under this Agreement or, in the case of any sub-custodian or its nominee, from
such sub-custodian's willful misfeasance, bad faith, negligence or reckless
disregard of its obligations under the Agreement under which it is acting.
9.2 INDEMNITY TO BE PROVIDED. If the Fund requests Custodian to take any
------------------------
action with respect to Securities, which may, in the opinion of Custodian,
result in Custodian or its nominee becoming liable for the payment of money or
incurring liability of some other form, Custodian shall not be required to take
such action until the Fund shall have provided indemnity therefor to Custodian
in an amount and form satisfactory to Custodian.
-28-
9.3 SECURITY. As security for the payment of any present or future
--------
obligation or liability of any kind which the Fund may have to Custodian with
respect to or in connection with the Custody Account or this Agreement, the Fund
hereby pledges to Custodian all cash, Securities and other property of every
kind which is in the Custody Account or otherwise held for the Fund pursuant to
this Agreement, and hereby grants to Custodian a lien, right of set-off and
continuing security interest in such cash, Securities and other property.
ARTICLE X
FORCE MAJEURE
-------------
Neither Custodian nor the Fund shall be liable for any failure or delay in
performance of its obligations under this Agreement arising out of or caused,
directly or indirectly, by circumstances beyond its reasonable control,
including, without limitation, acts of God; earthquakes; fires; floods; wars;
civil or military disturbances; sabotage; strikes; epidemics; riots; power
failures; computer failure and any such circumstances beyond its reasonable
control as may cause interruption, loss or malfunction of utility,
transportation, computer (hardware or software) or telephone communication
service; accidents; labor disputes; acts of civil or military authority;
governmental actions; or inability to obtain labor, material, equipment or
transportation.
ARTICLE XI
REPRESENTATIONS AND WARRANTIES
------------------------------
Each of the Fund and Custodian represents and warrants for itself that (a)
it has all necessary power and authority to perform its obligations hereunder,
(b) the execution and delivery by it of this Agreement, and the performance by
it of its obligations under this Agreement, have been duly authorized by all
necessary action and will not violate any law, regulation, charter, by-law, or
other
-29-
instrument, restriction or provision applicable to it or by which it is bound,
and (c) this Agreement constitutes a legal, valid and binding obligation of it,
enforceable against it in accordance with its terms.
ARTICLE XII
COMPENSATION OF CUSTODIAN
-------------------------
The Fund shall pay Custodian such fees and charges as are set forth in the
fee schedule annexed hereto as Exhibit C, as such fee schedule may from time to
time be revised by Custodian upon 14 days' prior written notice to the Fund.
Any annual fee or other charges payable by the Fund shall be paid monthly by
automatic deduction from the Custody Account. Expenses incurred by Custodian in
the performance of its services hereunder, and all other proper charges and
disbursements of the Custody Account, shall be charged to the Custody Account by
Custodian and paid therefrom.
ARTICLE XIII
TAXES
-----
Any and all taxes, including any interest and penalties with respect
thereto, which may be levied or assessed under present or future laws or in
respect of the Custody Account or any income thereof shall be charged to the
Custody Account by Custodian and paid therefrom.
ARTICLE XIV
AUTHORIZED PERSONS
------------------
14.1 AUTHORIZED PERSONS. Custodian may rely upon and act in accordance
------------------
with any notice, confirmation, instruction or other communication received by it
from the Fund which is reasonably believed by Custodian to have been given or
signed on behalf of the Fund by one of the Authorized Persons designated by the
Fund in Exhibit A hereto, as it may from time to time be revised. The Fund
-30-
may revise Exhibit A hereto at any time by notice in writing to Custodian given
in accordance with Article XV below, but no revision of Exhibit A hereto shall
be effective until Custodian actually receives such notice.
14.2 INVESTMENT ADVISERS. Custodian may also act in accordance with any
-------------------
Written or Oral Instructions which are reasonably believed by Custodian to have
been given or signed by one of the persons designated from time to time by any
of the investment advisers of the Fund specified in Exhibit B hereto (if any) as
it may from time to time be revised. The Fund may revise Exhibit B hereto at
any time by notice in writing to Custodian given in accordance with Article XV
below, and each investment adviser specified in Exhibit B hereto (if any) may at
any time by like notice designate an Authorized Person or remove an Authorized
Person previously designated by it, but no revision of Exhibit B hereto (if any)
and no designation or removal by such investment adviser shall be effective
until Custodian actually receives such notice.
14.3 ORAL INSTRUCTIONS. Custodian may rely upon and act in accordance
-----------------
with Oral Instructions (as defined in Section 1.11 above). If Written
Instructions confirming Oral Instructions are not received by Custodian prior to
a transaction, it shall in no way affect the validity of the transaction
authorized by such Oral Instructions or the authorization of the Fund to effect
such transaction. Custodian shall incur no liability to the Fund in acting upon
Oral Instructions (as defined in Section 1.11 above). To the extent such Oral
Instructions vary from any confirming Written Instructions, Custodian shall
advise the Fund of such variance but unless confirming Written Instructions are
timely received, such Oral Instructions will govern. Either Custodian or Fund
may electronically record any instructions given by telephone and any other
telephone discussions with respect to the account of the Fund.
-31-
ARTICLE XV
NOTICES
-------
Unless otherwise specified herein, all demands, notices, instructions, and
other communications to be given hereunder shall be sent, delivered or given to
the recipient at the address set forth after its name hereinbelow:
IF TO THE FUND:
Total Return Bond Portfolio - The Bear Xxxxxxx Funds
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx
----------------
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
IF TO CUSTODIAN:
Custodial Trust Company
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000-0000
Attention: Vice President - Trust Operations
---------------------------------
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or at such other address as either party shall have provided to the other by
notice given in accordance with this Article XV. Writing shall include
transmissions by or through teletype, facsimile, central processing unit
connection, on-line terminal and magnetic tape.
ARTICLE XVI
TERMINATION
-----------
Either party hereto may terminate this Agreement by giving to the other
party a notice in writing specifying the date of such termination, which shall
be not less than sixty (60) days after the date of the giving of such notice.
Upon the date set forth in such notice this Agreement shall terminate, and
Custodian shall, upon receipt of a notice of acceptance by the successor
custodian, on
-32-
that date (a) deliver directly to the successor custodian or its agents all
Securities (other than Securities held in a Book-Entry System, Securities
Depository or Foreign Securities Depository) and cash then owned by the Fund and
held by Custodian as custodian, and (b) transfer any Securities held in a Book-
Entry System, Securities Depository or Foreign Securities Depository to an
account of or for the benefit of the Fund, provided that the Fund shall have
paid to Custodian all fees, expenses and other amounts to the payment or
reimbursement of which it shall then be entitled.
ARTICLE XVII
MISCELLANEOUS
-------------
17.1 BUSINESS DAYS. Nothing contained in this Agreement shall require
-------------
Custodian to perform any function or duties on a day other than a Business Day.
17.2 GOVERNING LAW. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the State of New York, without regard to the
conflict of law principles thereof.
17.3 REFERENCES TO CUSTODIAN. The Fund shall not circulate any printed
-----------------------
matter which contains any reference to Custodian without the prior written
approval of Custodian, excepting printed matter contained in the prospectus or
statement of additional information for the Fund and such other printed matter
as merely identifies Custodian as custodian for the Fund. The Fund shall submit
printed matter requiring approval to Custodian in draft form, allowing
sufficient time for review by Custodian and its counsel prior to any deadline
for printing.
17.4 NO WAIVER. No failure by either party hereto to exercise, and no
---------
delay by such party in exercising, any right hereunder shall operate as a waiver
thereof. The exercise by either party hereto of any right hereunder shall not
preclude the exercise
-33-
of any other right, and the remedies provided herein are cumulative and not
exclusive of any remedies provided at law or in equity.
17.5 AMENDMENTS. This Agreement cannot be changed orally and no amendment
----------
to this Agreement shall be effective unless evidenced by an instrument in
writing executed by the parties hereto.
17.6 COUNTERPARTS. This Agreement may be executed in one or more
------------
counterparts, and by the parties hereto on separate counterparts, each of which
shall be deemed an original but all of which together shall constitute but one
and the same instrument.
17.7 SEVERABILITY. If any provision of this Agreement shall be invalid,
------------
illegal or unenforceable in any respect under any applicable law, the validity,
legality and enforceability of the remaining provisions shall not be affected or
impaired thereby.
17.8 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
----------------------
shall inure to the benefit of the parties hereto and their respective successors
and assigns; provided, however, that this Agreement shall not be assignable by
-------- -------
either party hereto without the written consent of the other party. Any
purported assignment in violation of this Section 17.8 shall be void.
17.9 HEADINGS. The headings of sections in this Agreement are for
--------
convenience of reference only and shall not affect the meaning or construction
of any provision of this Agreement.
-34-
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed in its name and on its behalf by its representative thereunto duly
authorized, all as of the day and year first above written.
TOTAL RETURN BOND PORTFOLIO - CUSTODIAL TRUST COMPANY
THE BEAR XXXXXXX FUNDS
By /s/ Xxxxx X. Xxxxxxx By /s/ Xxxxxx X. Xxxxxx
-------------------- -----------------------
Authorized Officer Authorized Officer
-35-
EXHIBIT A
---------
AUTHORIZED PERSONS WITH ACCESS TO INVESTMENTS/*/
Set forth below are the names of the persons, whose specimen signatures are
on file with the Custodian, authorized by the Board of Trustees of The Bear
Xxxxxxx Funds to have access to the Total Return Bond Portfolio's (the "Fund")
investments.
Name
----
Xxxx X. Xxxx
Xxxx X. Xxxxxxxxxx
Xxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxx
_____________________
/*/Nothing herein shall prohibit any person designated as an Authorized Person
from giving Oral Instructions or Written Instructions to the Custodian, so long
as it does not result in delivery of or access to securities and similar
investments of the Fund by such person.
EXHIBIT B
---------
INVESTMENT ADVISERS
Bear Xxxxxxx Funds Management Inc.
EXHIBIT C
---------
CUSTODY FEES AND TRANSACTION CHARGES
DOMESTIC FEES. The Fund shall pay Custodian the following fees and charges
-------------
for assets in the United States ("Domestic Assets") and transactions in the
United States, all such fees and charges to be payable monthly:
(1) an annual fee of the greater of 0.015% (one and one-half basis points)
per annum of the value of the Domestic Assets in the Custody Account or $5,000,
such fee to be payable monthly based upon the total market value of such
Domestic Assets as determined on the last Business Day of the month for which
such fee is charged;
(2) a transaction charge of $18 for each buy, sell or redemption
transaction executed in the Custody Account with respect to such Domestic Assets
as are book-entry Securities (but not for any such buy or sell in a repurchase
transaction representing a cash sweep investment for the Fund's account or the
investment by the Fund of collateral for a loan of Securities);
(3) a transaction charge of $50 for each receipt or delivery into or from
the Custody Account of such Domestic Assets as are Securities in physical form;
(4) a transaction charge for each repurchase transaction in the Custody
Account which represents a cash sweep investment for the Fund's account,
computed at a rate of 0.10% (ten basis points) per annum on the amount of the
purchase price paid or received by the Fund in such repurchase transaction;
(5) a charge of $10 for each funds transfer; and
(6) a service charge for each holding of Domestic Assets consisting of
Securities or other property sold by way of private placement or in such other
manner as to require services by Custodian which in the reasonable judgment of
Custodian are materially in excess of those ordinarily required for the holding
of publicly traded Securities in the United States.
INTERNATIONAL FEES. The Fund shall pay Custodian fees for assets outside
------------------
the United States ("Foreign Assets") and transaction charges and other charges
(including, without limitation, charges for funds transfers, tax reclaims, and
foreign exchange services) outside the United States, all such fees and charges
to be payable monthly, according to a schedule of such fees and charges specific
to each country in which Foreign Assets are held, such schedule to be provided
from time to time upon request.
Fees shall be based upon the total market value of the applicable Foreign
Assets as determined on the last Business Day of the month for which such fees
are charged.
EXHIBIT D
---------
APPROVED FOREIGN SUB-CUSTODIANS
Foreign Sub-custodian Country(ies) Securities Depositories
--------------------- ------------
(See Attached)
CITIBANK, N.A.
SEC RULE 17F-5 INFORMATION PACKAGE
AUGUST 1994
SECTION 2: OVERVIEW OF FOREIGN SUBCUSTODIANS & DEPOSITORIES
SECTION 2:
OVERVIEW OF CITIBANK'S
FOREIGN SUBCUSTODIAN AND
DEPOSITORY ARRANGEMENTS
Colombia: Cititrust Colombia X.X.
Xxxxxxx 0X, Xx. 00-00,
Xxxxxx, Xxxxxxxx
2-01.0 SUBCUSTODIAN NETWORK
Argentina: Citibank, N.A. (Argentina) Denmark: Den Danske Bank
Xxxxxxxxx Xxxxx 502/30 0-00 Xxxxxxx Xxxxx
0000 Xxxxxx Xxxxx, Xxxxxxxxx DK-1092 Copenhagen K.
Denmark
Australia: Citicorp Nominees Pty. Ltd. Finland: Kansallis-Osake-Pankki
000 Xxxxxxx Xxxxxx Xxxxxxxxxxxxxxxx 00
Xxxxxxxxx, XXX 0000 Xxxxxxxxx 00000 Xxxxxxxx, Finland
Austria: Citibank (Austria) A.G. France: Citibank S.A. (France)
Postfach 90 Cedex 36
Xxxxxxxxxxxxxxxxx 0 00000 Xxxxx la Defense, France
X-0000 Xxxxxx, Xxxxxxx
Banque Paribas
Belgium: Generale Bank 0 Xxx X'Xxxxx
Xxxxxxxx xx Xxxx 0 00000 Xxxxx, Xxxxxx
0000 Xxxxxxxx, Xxxxxxx
Brazil: Citibank, N.A. (Brazil) Germany: Citibank Aktiengesellschaft
Avenida Paulista 1111 Xxxx Xxxxxxx Xxx. 00,
Xxx Xxxxx, Xxxxxx 00000, Frankfurt/Main,
Germany
Canada: Citibank Canada Greece: Citibank, N.A. (Greece)
000 Xxxxx Xxxxxx Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx Othonos 8
M5J2M3, Canada Xxxxxx 00000, Xxxxxx
Chile: Citibank, N.A. (Chile) Hong Kong: Citibank, N.A. (Hong Kong)
Xxxxxxx 00 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxx Xxxxxxxx Xxxxx
0 Xxxxxx Xxxx
Xxxxxxx, Xxxx Xxxx
Xxxxx: Citibank, N.A. (Hong Kong) Hungary: Citibank Budapest Xx.
x/x Xxxxxxxx, X.X., 0000 Xxxxxxxx X00-00.
Hong Kong, Citicorp Tower, Vaci Utca
Xxxxxxxx Xxxxx, 0 Xxxxxx Xxxx, Xxxxxxx
Xxxxxxx, Xxxx Xxxx
Xxxxx: Citibank, N.A. (India) New Zealand: Citibank Nominees (New
Sakhar Bhavan Zealand) Ltd.
230 Backbay Reclamation 00 Xxxxxxx Xxxxxx Xxxx
Xxxxxxx Xxxxx Xxxxxxxx 0, Xxx Xxxxxxx
Bombay 400 021
Indonesia: Citibank, N.A. (Jakarta)
Xxxxx Xxxx. Xxxxxxxx Xx. 0 Xxxxxx: Xxxxxxxxxxx Xxxx
Xxxxxxx 00000, Xxxxxxxxx X.X. Xxx 0000 Xxxxxxx
0000 Xxxx 0, Xxxxxx
Xxxxxxx: Citibank, N.A. (Ireland)
IFSC House, Custom House Pakistan: Citibank, N.A. (Pakistan)
Quay, Xxxxxx 0 X.X. Xxx 0000
Xxxxxxx 00 Xxxxxxxxxx Xxxx
Xxxxxxx 00000
Xxxxx: Citibank, N.A. (Italy) Pakistan
Foro Buonaparte N. 00
Xxxxxxx Xxxxxxx 00000
00000 Xxxxx, Xxxxx
Japan: Citibank, N.A. (Japan) Peru: Citibank, N.A. (Lima)
Citicorp Center, Xx. Xxxxxx Xxxx 000,
0-000 Xxxxxxx Xxxxxxxxx, Torre Real 5t 0 Xxxx,
Xxxxxxxxx - xx, Xxxx 00
Xxxxx, Xxxxx Xxxx
Jordan: Citibank, N.A. (Jordan) Philippines: Citibank, N.A. (Philippines)
0xx Xxxxxx Xxxxxxxx Xxxxxx
Jordan Insurance Building 8741 Paseo de Roxas
Xxxxxx Xxxxxxxx Street Makati Metro
Amman, Jordan Manila, Philippines
Korea: Citibank, N.A. (Korea) Poland: Citibank Poland S.A.
89-29 Shinmun-Ro, Sentorska 12,
Chongro-ku 00-000 Xxxxxx,
Xxxxx, Xxxxx Poland
Luxembourg: Cedel S.A. Portugal: Citibank Portugal S.A.
00 Xxxxxxxxx Xxx Xxxxx, Xxxxxxxxx 00,
Xxxxxx-Xxxxxxxx Xxxxxxxxx 0xx xxxxx, 0000 Xxxxxx,
X-0000, Xxxxxxxxxx Xxxxxxxx
Malaysia: Citibank Berhad Puerto Rico: Citibank, N.A.
28-30 Medan Pasar 000 Xxxxx Xx Xxxx Xxxxxx
00000 Xxxxx Xxxxxx, Xxxxxxxx Xxx Xxxx, Xxxxxx Xxxx 00000
Xxxxxx: Citibank, N.A. (Mexico) Singapore: Citibank, N.A. (Singapore)
Paseo de la Reforma 000 XXX Xxxxxxxx #00-00
Xxxxxx Xxxx XX, 00000 Xxxxxx 0 Xxxxxxx Xxx
Xxxxxxxxx 0106
Netherlands: Citibank, N.A. (Netherlands)
"Europlaza", South Africa: First National Bank
Xxxxxxxxxxxxx 00 X, Xxxxxxxxx xxxxx,
0000 BE Amsterdam z.o., 0 Xxxxx Xxxxx,
Xxx Xxxxxxxxxxx Post Xxx 0000
Xxxxxxxxxxxx, 0000
Xxxxx Xxxxxx
Spain: Citibank, N.A. (Spain)
Xxxx Xxxxxx Y Xxxxxx 00
00000 Xxxxxx, Xxxxx
Sri Lanka: Citibank, N.A. (Sri Lanka)
67 Dharmapala Mawatha
X.X. Xxx 000
Xxxxxxx 0, Xxx Xxxxx
Xxxxxx: Skandinaviska Enskilda Banken
Xxxxxxx Xxxx 0
Xxxxxxxxx, Xxxxxx
Xxxxxxxxxxx: Citibank (Switzerland)
Xxxxxxxxxxxxx 00,
Xxxx Xxxxxx Xxx 00
0000 Xxxxxx, Xxxxxxxxxxx
Taiwan: Citibank, N.A. (Taiwan)
Taipei Branch
Xx. 00 Xxxx Xxxxx Xxxx Xxxx
Xxx. 0
Xxxxxx, Xxxxxx
Xxxxxxxx: Citibank, N.A. (Thailand)
000 Xxxxx Xxxxxx Xxxx
Xxxxxxx 00000, Xxxxxxxx
Turkey: Citibank, N.A. (Turkey)
Buyukedere Caddesi,
Xx. 000, Xxxxxxxx 00000
Xxxxxxxx, Xxxxxx
Xxxxxx Xxxxxxx: Citibank, N.A.
00 Xxxxxxxxxx Xx,
Xxxxxxxx, Xxxxxx XX 00 0XX
Xxxxxx Xxxxxxx
The First National Bank of
Chicago
00 Xxxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX, Xxxxxxx
Uruguay: Citibank, N.A. (Uruguay)
Xxxxxxx 000
X.X. Xxx 000
Xxxxxxxxxx
Xxxxxxx
Venezuela: Citibank, N.A. (Caracas)
Carmelitas a Xxxxxxxxxx
Xxxxxxxx Xxxxxxxx
Xxxxxxx 0000, Xxxxxxxxx
2-01.1 STATUS AND SHAREHOLDERS' EQUITY
COUNTRY SUBCUSTODIAN STATUS SHAREHOLDERS'
EQUITY
Argentina Citibank, N.A. Branch NA
Australia Citicorp Nominees Pty. Ltd. Subsidiary SEC Exemption
Austria Citibank (Austria) A.G. Subsidiary SEC Exemption
Belgium Generale Bank Correspondent US$ 2,260 MM
Brazil Citibank, N.A. Branch NA
Canada Citibank Canada Subsidiary US$ 299.9 MM
Chile Citibank, N.A. Branch NA
China Citibank, N.A. Branch NA
Colombia Cititrust Colombia S.A. Subsidiary SEC Exemption
Sociedad Fiduciary
Denmark Den Danske Bank Correspondent US$ 2,975 MM
Finland Kansallis-Osake-Pankki Correspondent US$ 1,325 MM
France Citibank S.A. Subsidiary SEC Exemption
France Banque Paribas Correspondent US$ 2,998 MM
Germany Citibank Aktiengesellschaft Subsidiary US$ 298 MM
Greece Citibank, N.A. Branch NA
Hong Kong Citibank, N.A. Branch NA
Hungary Citibank Budapest Rt. Subsidiary SEC Exemption
India Citibank, N.A. Branch NA
Indonesia Citibank, N.A. Branch NA
Ireland Citibank, N.A. Branch NA
Italy Citibank, N.A. Branch NA
Japan Citibank, N.A. Branch XX
Xxxxxx Citibank, N.A. Branch NA
Korea Citibank, N.A. Branch NA
Luxembourg Cedel S.A. Depository NA
Malaysia Citibank Berhad Subsidiary US$ 145MM
Mexico Citibank, N.A. Branch NA
Netherlands Citibank, N.A. Branch NA
New Zealand Citibank Nominees (NZ) Ltd. Subsidiary SEC Exemption
Norway Christiania Bank Correspondent US$ 512MM
Pakistan Citibank, N.A. Branch NA
Peru Citibank, N.A. Branch NA
Philippines Citibank, N.A. Branch NA
Poland Citibank Poland S.A. Subsidiary SEC Exemption
Portugal Citibank Portugal S.A. Subsidiary SEC Exemption
Singapore Citibank, N.A. Branch NA
South Africa First National Bank of Southern Africa Ltd. Correspondent US$ 620MM
Spain Citibank, N.A. Branch NA
Sri Lanka Citibank, N.A. Branch NA
Sweden Skandinaviska Enskilda Banken Correspondent US$ 669MM
Switzerland Citibank (Switzerland) Affiliate US$ 198MM
Taiwan Citibank, N.A. Branch NA
Thailand Citibank, N.A. Branch NA
Turkey Citibank, N.A. Branch NA
U.K. Citibank, N.A. Branch NA
Uruguay Citibank, N.A. Branch NA
Venezuela Citibank, N.A. Branch NA
2-02.0 DEPOSITORIES
Argentina: Caja de Valores ("CDV") Finland: Central Share Registry
The Helsinki Money Market Center
Australia: The Reserve Bank Information France: Societe Interprofessionnelle
and Transfer System ("RITS") pour la Compensation de
Valeurs Mobilieres
Austraclear ("SICOVAM")
Austria: Wertpapiersammelbank Banque de France
bei der Oesterreichische
Kontrollbank ("OEKB/WSB") Germany: Deutscher Kassenverein A.G.
("DKV")
Belgium: Caisse Interprofessionelle
de Depots et de Virements Greece: Central Securities Depository,
de Titres S.A. ("CIK") S.A. ("CSD")
Banque Nationale Hong Kong: Central Clearing and
de Belgique ("BNB") Settlement System
("CCASS")
Brazil: BOVESPA's Registered
Shares Fungible Custody Hungary: The Central Depository and
("BOVESPA") Clearing House ("CDCH")
Canada: The Canadian Depository for Ireland: Gilt Settlement Office ("GSO")
Securities Limited ("CDS")
Italy: Monte Titoli Instituto per la
China: The Shanghai Securities Custodia e l'Amministrazione
Central Clearing and Accentrata di Valori Mibiliar
Registration Corporation ("Monte Titoli")
("SSCCRC")
The Bank of Italy
The Shenzhen Securities
Registrars Co. Ltd. - registrar Japan: Japan Securities Depository
for three banks forming a Center ("JASDEC")
decentralized depository
structure The Bank of Japan ("BOJ")
Denmark: Vaerdipapircentralen ("VP") Korea: The Korea Securities
Depository ("KSD")
Luxembourg: CEDEL, S.A.
Malaysia: Malaysian Central
Depository Sdn. Bhd.
("MCD")
Mexico: Instituto para el Deposito de
Valores ("S.D. Indeval")
Netherlands: Nederlands Centraal Instituut
voor Giraal Effectenverkeer
B.V. ("Necigef")
New Zealand: Austraclear
Norway: The Norwegian Registry of
Securities -
Verdipapirsentralen ("VPS")
Peru: Caja de Valores ("CAVAL")
Poland: The National Depository of Securities
(Krajowy Depozyt Papierow Wartosciowych)
Portugal: Central de Registo e Valores Mobiliarios
Singapore: Central Depository (PTE) Ltd.
South Africa: The Central Depository (Pty) Ltd.
Spain: Xxxxxxx xx Xxxxxxxxxxxx x
Xxxxxxxxxxx xx Xxxxxxx ("XXXX")
Xxx Xxxxx: Central Depository System (Pvt) Limited
Sweden: Vardepapperscentralen VPC AB ("VPC")
Switzerland: Schwerzerische Effekten-Giro AG ("SEGA")
Taiwan: Taiwan Securities Central
Depository Co., Ltd. ("TSCD")
Thailand: Share Depository Center ("SDC")
Turkey: Istanbul Stock Exchange Settlement
and Custody Company Inc.
United
Kingdom: Central Gilts Office ("CGO")
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK
GLOBAL CUSTODY NETWORK
START DEPOSITORY IN ADDITION TO THE CENTRAL BANK,
COUNTRY DATE SUBCUSTODIAN IF APPLICABLE.
Argentina 1991 Xxxxxx Guaranty Trust Co. of Caja de Valores
N.Y. - Buenos Aires Office
Xxxxxxxxx 0000 ANZ Banking Group Austraclear
Austria 1988 Creditanstalt-Bankverein OeKB-WSB (Wertpapiersammelbank bei der
Oesterreichischen
Kontrollbank AG)
Belgium 1977 Xxxxxx Guaranty Trust Co. of CIK (Caisse Interprofessionnelle de
N.Y. - Brussels Office Depots et de Virements de Titres)
Euroclear Clearance System Limited
Brazil 1991 Xxxxxx Guaranty Trust Co. of BOVESPA (Bolsa de Valores de Sao Paolo;
N.Y. - Sao Paulo Office equities)
BVRJ (Bolsa de Valores de Rio de Janeiro,
equities)
CETIP (Central de Custodia e Liquidacao
Financeira de Titulos; corporate bonds)
SELEC (Sistema Especial de Liquidacao e
Custodia; gov't securities)
Canada 1978 Canadian Imperial Bank of CDS (Canadian Depository for Securities)
Commerce
Xxxxx 0000 Xxxxxxxx, N.A.
People's Republic 1992 Hongkong and Shanghai Banking
of China- Corporation
Shanghai and
Shenzhen
Xxxxx Xxxxxxxx 0000 Xxxxxxxxxxxxxx Obchodni Banka, A.S.
Denmark 1985 Den Danske Bank VP (Vaerdipapircentralen; Danish
Securities Centre)
Finland 1985 Union Bank of Finland
France 1977 Xxxxxx Guaranty Trust Co. of SICOVAM (Societe Interprofessionnelle Pour La
N.Y. - Paris Office Compensation des Valeurs Mobilieres)
Germany 1977 Xxxxxx Guaranty Trust Co. of DKV (Deutscher Kassenverein)
N.Y. - Frankfurt Office
Greece 1989 National Bank of Greece S.A.
Hong Kong 1978 Hongkong and Shanghai Banking CCASS (Central Clearing and Settlement System)
Corporation
Hungary 1993 Citibank N.A.
India 1993 Hongkong and Shanghai Banking
Corporation
Indonesia 1990 Hongkong and Shanghai Banking
Corporation
Ireland 1988 Allied Irish Banks PLC
Israel 1994 Bank Leumi LE TASE (Tel Aviv Stock Exchange) Clearing House Ltd.
Italy 1977 Xxxxxx Guaranty Trust Co. of N.Y. Monte Titoli S.p.A.
Milan Office
Japan 1977 The Fuji Bank, Limited JASDEC (Japan Securities Depository Center)
JSA (Japan Securities Agent)
Jordan 1994 Citibank, N.A.
Korea 1991 Bank of Seoul KSSC (Korea Securities Settlement Corporation)
Luxembourg 1992 Banque Internationale A CEDEL (Centrale de Livraison des Valeurs
Luxembourg, S.A. Mobilieres)
Malaysia 1987 Hongkong and Shanghai Banking SCANS (Securities Clearing Automated
Corporation Network Services)
Xxxxxx 0000 Xxxxxxxx, N.A. Indeval
Morocco 1994 Banque Xxxxxxxxxxx xx Xxxxx
Xxxxxxxxxxx 0000 Bank Labouchere nv NECIGEF (Nederlands Centraal Instituut Voor
Giraal Effectenverkeer BV)
New Zealand 1982 ANZ Banking Group Ltd.
Norway 1978 Den Norske Bank VPS (Verdipapirsentralen; Norwegian
Registry of Securities)
Pakistan 1994 Citibank, N.A.
Xxxx 0000 Xxxxxxxx, N.A. CAVAL (Caja de Valores)
Philippines 1990 Hongkong and Shanghai Banking
Corporation
Poland 1993 Bank Handlowy
Portugal 0000 Xxxxx Xxxxxxxx Xxxxx X
Xxxxxxxxx xx Xxxxxx
Xxxxxxxxx 1988 Development Bank of Singapore (CDP) Xxxxxxx Xxxxxxxxxx Xxx
Xxxxx Xxxxxx 0000 First National Bank of Southern
Africa
Spain 1977 Xxxxxx Guaranty Trust Co. of
N.Y. - Madrid Office
Sri Lanka 1992 Hongkong and Shanghai Banking
Corporation
Sweden 1985 Skandinaviska Enskilda Banken VPC (Vaerdepappercentralen; Securities
Register Centre)
Switzerland 1977 Bank Leu SEGA (Schweizerische Effekten - Giro AG)
Taiwan 1992 Hongkong and Shanghai Banking
Corporation
Thailand 1988 Hongkong and Shanghai Banking
Corporation
Turkey 1990 Citibank, N.A. Istanbul Stock Exchange Settlement and
Ottoman Bank Custody Company, Inc. (I.M.K.B. Takas ve Saklama
A.S.)
United Kingdom 1977 Xxxxxx Guaranty Trust Co. of N.Y. TALISMAN (Transfer, Accounting and
London Office Lodgement for Investors, Stock Management for
Jobbers)
CGO (Central Gilts Office)
CMS (Central Money Market Office)
United States of 1977 Xxxxxx Guaranty Trust Co. of The Federal Reserve Bank of New York
America N.Y. The Depository Trust Co.
The Participants Trust Co.
Venezuela 1991 Citibank, N.A.
EXHIBIT (8)
CUSTODY AGREEMENT
This AGREEMENT, dated as of February 22, 1995, by and between the S&P STARS
PORTFOLIO (the "Fund"), a portfolio of The Bear Xxxxxxx Funds (the "Company"),
an unincorporated business trust organized under the laws of the Commonwealth of
Massachusetts, and CUSTODIAL TRUST COMPANY, a bank organized and existing under
the laws of the State of New Jersey (the "Custodian").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Fund desires that its Securities, cash and other assets be
held and administered by Custodian pursuant to this Agreement;
WHEREAS, the Fund is an investment portfolio represented by a series of
Shares constituting part of the capital stock of the Company, an open-end
management investment company registered under the 1940 Act (as hereinafter
defined);
WHEREAS, Custodian represents that it is a bank having the qualifications
prescribed in Section 26(a)(i) of the 1940 Act;
NOW, THEREFORE, in consideration of the mutual agreements herein made, the
Fund and Custodian hereby agree as follows:
ARTICLE I
DEFINITIONS
-----------
Whenever used in this Agreement, the following terms, unless the context
otherwise requires, shall mean:
1.1 "AUTHORIZED PERSON" means any Officer or other person duly authorized
-----------------
by resolution of the Board of Directors to give Oral Instructions and Written
Instructions on behalf of the Fund and identified, by name or by office, in
Exhibit A hereto or any person duly designated to do so by an investment adviser
of the Fund specified by the Fund in Exhibit B hereto.
1.2 "BOARD OF DIRECTORS" means the Board of Trustees of the Fund or, when
------------------
permitted under the 1940 Act, the Executive Committee thereof, if any.
1.3 "BOOK-ENTRY SYSTEM" means a book-entry system maintained by a Federal
-----------------
Reserve bank as provided for in Subpart O of Treasury Circular Xx. 000, 00 XXX
306, in Subpart B of 31 CFR Part 350, or in such other book-entry regulations of
federal agencies as are substantially in the form of such Subpart O.
1.4 "BUSINESS DAY" means any day recognized as a settlement day by The
------------
New York Stock Exchange, Inc. and on which banks in the State of New Jersey are
open for business.
1.5 "CUSTODY ACCOUNT" means the account in the name of the Fund, which is
---------------
provided for in Section 3.2 below.
1.6 "ELIGIBLE FOREIGN CUSTODIAN" means any banking institution, trust
--------------------------
company or other entity organized under the laws of a country other than the
United States which is eligible under Rule 17f-5 under the 1940 Act to act as a
sub-custodian for Foreign Securities and other assets of the Fund held outside
the United States.
1.7 "FOREIGN SECURITIES" means Securities as defined in paragraph (c)(1)
------------------
of Rule 17f-5 under the 1940 Act.
-2-
1.8 "FOREIGN SECURITIES DEPOSITORY" means a securities depository or
-----------------------------
clearing agency as defined in subparagraphs (c)(2)(iii) or (iv) of Rule 17f-5
under the 0000 Xxx.
1.9 "1940 ACT" means the Investment Company Act of 1940, as amended.
--------
1.10 "OFFICER" means the President, any Vice President, the Secretary, any
-------
Assistant Secretary, the Treasurer, or any Assistant Treasurer of the Fund.
1.11 "ORAL INSTRUCTIONS" means instructions orally transmitted to and
-----------------
accepted by Custodian which are (a) reasonably believed by Custodian to have
been given by an Authorized Person, (b) recorded and kept among the records of
Custodian made in the ordinary course of business, and (c) orally confirmed by
Custodian.
1.12 "PROPER INSTRUCTIONS" means Oral Instructions or Written
-------------------
Instructions. Proper Instructions may be continuing Written Instructions when
deemed appropriate by both parties.
1.13 "SECURITIES" includes, without limitation, common and preferred
----------
stocks, bonds, call options, put options, debentures, notes, bank certificates
of deposit, forward contracts, futures contracts (including those related to
indexes), options on futures contracts or indexes, bankers' acceptances,
mortgage-backed securities or other obligations, and any certificates, receipts,
warrants or other instruments or documents representing rights to receive,
purchase or subscribe for the same, or evidencing or representing any other
rights or interests therein, or any similar property or assets that Custodian
has the facilities to clear and to service.
1.14 "SECURITIES DEPOSITORY" means The Depository Trust Company and
---------------------
(provided that Custodian has received a copy of a
-3-
resolution of the Board of Directors of the Fund, certified by an Officer,
specifically approving the use thereof as a depository for the Fund) any other
clearing agency registered with the Securities and Exchange Commission under
Section 17A of the Securities Exchange Act of 1934 (the "1934 Act"), which acts
as a system for the central handling and deposit of Securities where all
Securities of any particular class or series of an issuer deposited within the
system are treated as fungible and may be transferred or pledged by bookkeeping
entry without physical delivery of the Securities.
1.15 "SHARES" means the shares into which the capital stock of the Fund is
------
divided.
1.16 "WRITTEN INSTRUCTIONS" means (a) written communications received by
--------------------
Custodian and signed by two persons reasonably believed by Custodian to be
Authorized Persons, or (b) communications by telex or any other such system from
two persons reasonably believed by Custodian to be Authorized Persons, or (c)
communications between electro-mechanical or electronic devices.
ARTICLE II
APPOINTMENT OF CUSTODIAN
------------------------
2.1 APPOINTMENT. The Fund hereby appoints Custodian as custodian of all
-----------
such Securities, cash and other assets as may be acceptable to Custodian and
from time to time delivered to it by the Fund or others for the account of the
Fund.
2.2 ACCEPTANCE. Custodian hereby accepts appointment as such custodian
----------
and agrees to perform the duties thereof as hereinafter set forth.
-4-
ARTICLE III
CUSTODY OF CASH AND SECURITIES
------------------------------
3.1 SEGREGATION. All Securities and non-cash property of the Fund in the
-----------
possession of Custodian (other than Securities maintained by Custodian in a
Securities Depository or Book-Entry System) shall be physically segregated from
other Securities and non-cash property in the possession of Custodian and shall
be identified as belonging to the Fund.
3.2 CUSTODY ACCOUNT. (a) Custodian shall open and maintain in its trust
---------------
department a custody account in the name of the Fund, subject only to draft or
order of Custodian, in which Custodian shall enter and carry all Securities,
cash and other assets of the Fund which are delivered to Custodian and accepted
by it. Custodian shall not be under any duty or obligation to require the Fund
to deliver to it any Securities or funds owned by the Fund and shall have no
responsibility or liability for or on account of Securities or funds not so
delivered.
(b) If Custodian at any time fails to receive any of the documents
referred to in Section 3.5(a) below, then, until such time as it receives such
document, it shall not be obligated to receive any Securities of the Fund into
the Custody Account and shall be entitled to return to the Fund any Securities
of the Fund that it is holding.
(c) Custodian may, but shall not be obligated to, hold Securities
that may be held only in physical form.
(d) Custodian is authorized to disclose the name, address and
securities positions of the Fund to the issuers of such securities when
requested by them to do so.
-5-
3.3 APPOINTMENT OF AGENTS. (a) Custodian may employ suitable agents,
---------------------
which may include affiliates of Custodian, such as Bear, Xxxxxxx & Co. Inc. or
Bear, Xxxxxxx Securities Corp., both of which are registered broker-dealers.
The appointment of any agent pursuant to this Section 3.3(a) shall not relieve
Custodian of any of its obligations or liabilities under this Agreement.
However, no Book-Entry System, Securities Depository, Foreign Securities
Depository or other securities depository or clearing agency (whether foreign or
domestic) which it is or may become standard market practice to use for the
comparison and settlement of trades in securities shall be an agent or sub-
contractor of Custodian for purposes of this Section 3.3(a) or otherwise.
(b) In its discretion, Custodian may appoint, and at any time remove,
any domestic bank or trust company which is qualified to act as a custodian
under the 1940 Act as sub-custodian to hold Securities and cash of the Fund and
to carry out such other provisions of this Agreement as it may determine, and
may also open and maintain one or more banking accounts with such a bank or
trust company (any such accounts to be in the name of Custodian and subject only
to its draft or order), provided, however, that the appointment of any such
agent or opening and maintenance of any such accounts shall be at Custodian's
expense and shall not relieve Custodian of any of its obligations or liabilities
under this Agreement.
(c) Upon receipt of Written Instructions to do so and at the Fund's
expense, Custodian shall appoint as sub-custodian such domestic bank or trust
company as is named therein, provided that (i) such bank or trust company is
qualified to act as a custodian under the 1940 Act, and (ii) notwithstanding
anything to the contrary in Section 7.1 below or elsewhere in this Agreement,
Custodian shall have no greater liability to the Fund for the actions or
omissions of any such sub-custodian than any such sub-custodian has to
Custodian, and Custodian shall not be required
-6-
to discharge any such liability which may be imposed on it unless and until such
sub-custodian has effectively indemnified Custodian against it or has otherwise
discharged its liability to Custodian in full.
3.4 DELIVERY OF ASSETS TO CUSTODIAN. The Fund shall deliver to Custodian
-------------------------------
the Fund's Securities, cash and other assets, which are acceptable to Custodian,
including (a) payments of income, payments of principal and capital
distributions received by the Fund with respect to such Securities, cash or
other assets owned by the Fund at any time during the term of this Agreement,
and (b) cash received by the Fund for the issuance, at any time during such
term, of Shares. Custodian shall not be responsible for such Securities, cash
or other assets until actually received by it.
3.5 SECURITIES DEPOSITORIES AND BOOK-ENTRY SYSTEMS. Custodian may
----------------------------------------------
deposit and/or maintain Securities of the Fund in a Securities Depository or in
a Book-Entry System, subject to the following provisions:
(a) Prior to a deposit of Securities of the Fund in any Securities
Depository or Book-Entry System, the Fund shall deliver to Custodian a
resolution of the Board of Directors of the Fund, certified by an Officer,
authorizing and instructing Custodian (and any sub-custodian appointed pursuant
to Section 3.3 above) on an on-going basis to deposit in such Securities
Depository or Book-Entry System all Securities eligible for deposit therein and
to make use of such Securities Depository or Book-Entry System to the extent
possible and practical in connection with its performance hereunder (or under
the applicable sub-custody agreement in the case of such sub-custodian),
including, without limitation, in connection with settlements of purchases and
sales of Securities, loans of Securities, and deliveries and returns of
collateral consisting of Securities.
-7-
(b) Securities of the Fund kept in a Book-Entry System or Securities
Depository shall be kept in an account ("Depository Account") of Custodian in
such Book-Entry System or Securities Depository which includes only assets held
by Custodian as a fiduciary, custodian or otherwise for customers.
(c) The records of Custodian with respect to Securities of the Fund
maintained in a Book-Entry System or Securities Depository shall at all times
identify such Securities as belonging to the Fund.
(d) If Securities purchased by the Fund are to be held in a Book-Entry
System or Securities Depository, Custodian shall pay for such Securities upon
(i) receipt of advice from the Book-Entry System or Securities Depository that
such Securities have been transferred to the Depository Account, and (ii) the
making of an entry on the records of Custodian to reflect such payment and
transfer for the account of the Fund. If Securities sold by the Fund are held
in a Book-Entry System or Securities Depository, Custodian shall transfer such
Securities upon (i) receipt of advice from the Book-Entry System or Securities
Depository that payment for such Securities has been transferred to the
Depository Account, and (ii) the making of an entry on the records of Custodian
to reflect such transfer and payment for the account of the Fund.
(e) Custodian shall provide the Fund with copies of any report
obtained by Custodian from a Book-Entry System or Securities Depository in which
Securities of the Fund are kept on the internal accounting controls and
procedures for safeguarding Securities deposited in such Book-Entry System or
Securities Depository.
(f) At its election, the Fund shall be subrogated to the rights of
Custodian with respect to any claim against a Book-Entry System or Securities
Depository or any other person for any loss or
-8-
damage to the Fund arising from the use of such Book-Entry System or Securities
Depository, if and to the extent that the Fund has not been made whole for any
such loss or damage.
3.6 DISBURSEMENT OF MONEYS FROM THE CUSTODY ACCOUNT. Upon receipt of
-----------------------------------------------
Proper Instructions, Custodian shall disburse moneys from the Custody Account,
but only in the following cases:
(a) For the purchase of Securities for the Fund but only (i) in the
case of Securities (other than options on Securities, futures contracts and
options on futures contracts), against the delivery to Custodian (or any sub-
custodian appointed pursuant to Section 3.3 above) of such Securities registered
as provided in Section 3.9 below or in proper form for transfer or, if the
purchase of such Securities is effected through a Book-Entry System or
Securities Depository, in accordance with the conditions set forth in Section
3.5 above; (ii) in the case of options on Securities, against delivery to
Custodian (or such sub-custodian) of such receipts as are required by the
customs prevailing among dealers in such options; (iii) in the case of futures
contracts and options on futures contracts, against delivery to Custodian (or
such sub-custodian) of evidence of title thereto in favor of the Fund, the
Custodian, any such sub-custodian or any nominee referred to in Section 3.9
below; and (iv) in the case of repurchase or reverse repurchase agreements
entered into by the Fund, against delivery of the purchased Securities either in
certificate form or through an entry crediting Custodian's account at a Book-
Entry System or Securities Depository with such Securities;
(b) In connection with the conversion, exchange or surrender, as set
forth in Section 3.7(f) below, of Securities owned by the Fund;
(c) For the payment of any dividends or capital gain distributions
declared by the Fund;
-9-
(d) In payment of the redemption price of Shares as provided in
Article VI below;
(e) For the payment of any expense or liability incurred by the Fund,
including but not limited to the following payments for the account of the Fund:
interest, taxes, administration, investment management, investment advisory,
accounting, auditing, transfer agent, custodian, trustee and legal fees; and
other operating expenses of the Fund; in all cases, whether or not such expenses
are to be in whole or in part capitalized or treated as deferred expenses;
(f) For transfer in accordance with the provisions of any agreement
among the Fund, Custodian and a broker-dealer, relating to compliance with rules
of The Options Clearing Corporation and of any registered national securities
exchange (or of any similar organization or organizations) regarding escrow or
other arrangements in connection with transactions by the Fund;
(g) For transfer in accordance with the provisions of any agreement
among the Fund, Custodian, and a futures commission merchant, relating to
compliance with the rules of the Commodity Futures Trading Commission and/or any
contract market (or any similar organization or organizations) regarding account
deposits in connection with transactions by the Fund;
(h) For the funding of any uncertificated time deposit or other
interest-bearing account with any banking institution (including Custodian), but
only if the payment instructions to Custodian detail specific Securities to be
acquired;
(i) For the purchase from a bank or other financial institution of
loan participations, but only if Custodian has in its possession a copy of the
agreement between the Fund and such bank or other financial institution with
respect to the purchase of
-10-
such loan participations and the payment instructions to Custodian detail
specific assets to be acquired;
(j) For the purchase and sale of foreign currencies or options to
purchase and sell foreign currencies for spot and future delivery on behalf and
for the account of the Fund pursuant to contracts with such banks and other
financial institutions, including Custodian, any sub-custodian and any affiliate
of Custodian, as principal, as are approved and authorized by the Fund, but only
if the payment instructions to Custodian detail specific assets to be acquired;
(k) For transfer to a broker-dealer registered under the 1934 Act or
in accordance with the provisions of any agreement among the Fund, Custodian and
such a broker-dealer as margin for a short sale of Securities;
(l) For the payment of the amounts of dividends received with respect
to Securities sold short; and
(m) For any other proper purpose, but only upon receipt, in addition
to Proper Instructions, of a copy of a resolution of the Board of Directors,
certified by an Officer, specifying the amount and purpose of such payment,
declaring such purpose to be a proper purpose of the Fund, and naming the person
or persons to whom such payment is to be made.
3.7 DELIVERY OF SECURITIES FROM THE CUSTODY ACCOUNT. Upon receipt of
-----------------------------------------------
Proper Instructions, Custodian shall release and deliver Securities of the Fund
from the Custody Account but only in the following cases:
(a) Upon the sale of Securities for the account of the Fund but,
subject to Section 5.3 below, only against receipt of
-11-
payment therefor in cash, by certified or cashiers' check or bank credit;
(b) In the case of a sale effected through a Book-Entry System or
Securities Depository, in accordance with the provisions of Section 3.5 above;
(c) To an offeror's depository agent in connection with tender or
other similar offers for Securities of the Fund; provided that, in any such
case, the cash or other consideration is to be delivered to Custodian;
(d) To the issuer thereof or its agent (i) for transfer into the name
of the Fund or any of the nominees referred to in Section 3.9 below, or (ii) for
exchange for a different number of certificates or other evidence representing
the same aggregate face amount or number of units; provided that, in any such
case, the new Securities are to be delivered to Custodian;
(e) To the broker selling Securities, for examination in accordance
with the "street delivery" custom;
(f) For exchange or conversion pursuant to any plan of merger,
consolidation, recapitalization, reorganization or readjustment of the issuer of
such Securities, or pursuant to provisions for conversion contained in such
Securities, or pursuant to any deposit agreement, including surrender or receipt
of underlying Securities in connection with the issuance or cancellation of
depository receipts; provided that, in any such case, the new Securities and
cash, if any, are to be delivered to Custodian;
(g) Upon receipt of payment therefor pursuant to any repurchase
agreement entered into by the Fund;
-12-
(h) In the case of warrants, rights or similar Securities, upon the
exercise thereof, provided that, in any such case, the new Securities and cash,
if any, are to be delivered to Custodian;
(i) For delivery in connection with any loans of Securities pursuant
to any securities loan agreement entered into by the Fund, but only against
receipt of such collateral as is required under such securities loan agreement;
(j) For delivery as security in connection with any borrowings by the
Fund requiring a pledge of assets by the Fund, but only against receipt by
Custodian of the amounts borrowed;
(k) Pursuant to any authorized plan of liquidation, reorganization,
merger, consolidation or recapitalization of the Fund;
(l) For delivery in accordance with the provisions of any agreement
among the Fund, Custodian and a broker-dealer, relating to compliance with the
rules of The Options Clearing Corporation and of any registered national
securities exchange (or of any similar organization or organizations) regarding
escrow or other arrangements in connection with transactions by the Fund;
(m) For delivery in accordance with the provisions of any agreement
among the Fund, Custodian, and a futures commission merchant, relating to
compliance with the rules of the Commodity Futures Trading Commission and/or any
contract market (or any similar organization or organizations) regarding account
deposits in connection with transactions by the Fund;
(n) For delivery to a broker-dealer registered under the 1934 Act or
in accordance with the provisions of any agreement
-13-
among the Fund, Custodian and such a broker-dealer as margin for a short sale of
Securities;
(o) For delivery (by a Foreign Sub-custodian or an agent of Custodian)
to the depository used by an issuer of American Depositary Receipts or
International Depositary Receipts (hereinafter collectively referred to as
"ADRs") for such Securities against a written receipt therefor adequately
describing such Securities and written evidence satisfactory to the Foreign Sub-
custodian or agent that the depository has acknowledged receipt of instructions
to issue with respect to such Securities ADRs in the name of the Custodian, or a
nominee of the Custodian, for delivery to the Custodian;
(p) To deliver ADRs to the issuer thereof against a written receipt
therefor adequately describing the ADR's delivered and written evidence
satisfactory to the Custodian that the issuer of the ADRs has acknowledged the
receipt of instructions to cause its depository to deliver the Securities
underlying such ADRs to a Foreign Sub-custodian or agent of Custodian; or
(q) For any other proper purpose, but only upon receipt, in addition
to Proper Instructions, of a copy of a resolution of the Board of Directors,
certified by an Officer, specifying the Securities to be delivered, setting
forth the purpose for which such delivery is to be made, declaring such purpose
to be a proper purpose of the Fund, and naming the person or persons to whom
delivery of such Securities is to be made.
3.8 ACTIONS NOT REQUIRING PROPER INSTRUCTIONS. Unless otherwise
-----------------------------------------
instructed by the Fund, Custodian shall with respect to all Securities held for
the Fund:
-14-
(a) Subject to Section 8.4 below, collect on a timely basis all income
and other payments to which the Fund is entitled either by law or pursuant to
custom in the securities business;
(b) Subject to Section 8.4 below, collect on a timely basis the amount
payable upon or with respect to all Securities and other assets which may mature
or be called, redeemed, retired or otherwise become payable;
(c) Endorse for collection, in the name of the Fund, checks, drafts
and other negotiable instruments;
(d) Surrender interim receipts or Securities in temporary form for
Securities in definitive form;
(e) Execute, as custodian, any necessary declarations or certificates
of ownership under the federal income tax laws or the laws or regulations of any
other taxing authority now or hereafter in effect, and prepare and submit
reports to the Internal Revenue Service ("IRS") and to the Fund at such time, in
such manner and containing such information as is prescribed by the IRS;
(f) Hold for the Fund all rights and similar securities issued with
respect to Securities of the Fund; and
(g) In general, attend to all non-discretionary details in connection
with the sale, exchange, substitution, purchase, transfer and other dealings
with Securities and assets of the Fund.
3.9 REGISTRATION AND TRANSFER OF SECURITIES. All Securities held for the
---------------------------------------
Fund that are issuable only in bearer form shall be held by Custodian in that
form, provided that any such Securities shall be held in a Book-Entry System if
eligible therefor. All other Securities held for the Fund may be registered in
the name of Custodian as agent, any sub-custodian appointed pursuant to Section
-15-
3.3 above, any Securities Depository, any Foreign Sub-custodian or Foreign
Securities Depository (in the case of Foreign Securities), or any nominee or
agent of any of them. The Fund shall furnish to Custodian appropriate
instruments to enable Custodian to hold or deliver in proper form for transfer,
or to register as in this Section 3.9 provided, any Securities delivered to
Custodian which are registered in the name of the Fund.
3.10 RECORDS. (a) Custodian shall maintain complete and accurate records
-------
with respect to Securities, cash or other property held for the Fund, including
(i) journals or other records of original entry containing an itemized daily
record in detail of all receipts and deliveries of Securities and all receipts
and disbursements of cash; (ii) ledgers (or other records) reflecting (A)
Securities in transfer, if any, (B) Securities in physical possession, (C)
monies and Securities borrowed and monies and Securities loaned (together with a
record of the collateral therefor and substitutions of such collateral), (D)
dividends and interest received, and (E) dividends receivable and interest
accrued; and (iii) cancelled checks and bank records related thereto. Custodian
shall keep such other books and records with respect to Securities, cash and
other property of the Fund which is held hereunder as the Fund may reasonably
request.
(b) All such books and records maintained by Custodian shall (i) be
maintained in a form acceptable to the Fund and in compliance with rules and
regulations of the Securities and Exchange Commission, (ii) be the property of
the Fund and at all times during the regular business hours of Custodian be made
available upon request for inspection by duly authorized officers, employees or
agents of the Fund and employees or agents of the Securities and Exchange
Commission, and (iii) if required to be maintained by Rule 31a-1 under the 1940
Act, be preserved for the periods prescribed in Rule 31a-2 under the 1940 Act.
-16-
3.11 REPORTS BY CUSTODIAN. Custodian shall furnish the Fund with a daily
--------------------
activity statement, including a summary of all transfers to or from the Custody
Account, on the day following such transfers. At least monthly and from time to
time, Custodian shall furnish the Fund with a detailed statement of the
Securities and moneys held for the Fund under this Agreement.
3.12 OTHER REPORTS BY CUSTODIAN. Custodian shall provide the Fund with
--------------------------
such reports as the Fund may reasonably request from time to time on the
internal accounting controls and procedures for safeguarding Securities which
are employed by Custodian or any sub-custodian appointed pursuant to Section 3.3
above.
3.13 PROXIES AND OTHER MATERIALS. Unless otherwise instructed by the
---------------------------
Fund, Custodian shall promptly deliver to the Fund (at the address set forth in
Article XV below) all notices of meetings, proxies and proxy materials which it
receives regarding Securities held in the Custody Account. Before delivering
them to the Fund, Custodian shall cause all proxies relating to such Securities
which are not registered in the name of the Fund, or a nominee thereof, to be
promptly executed by the registered holder of such Securities, without
indication of the manner in which such proxies are to be voted. Unless otherwise
instructed by the Fund, neither Custodian nor any of its agents shall exercise
any voting rights with respect to Securities held hereunder.
3.14 INFORMATION ON CORPORATE ACTIONS. Custodian shall promptly transmit
--------------------------------
to the Fund (at the address set forth in Article XV below) all written
information received by Custodian from issuers of Securities held in the Custody
Account. With respect to tender or exchange offers for such Securities,
Custodian shall promptly transmit to the Fund all written information received
by it from the issuers of the Securities whose tender or exchange is sought and
by the party (or its agents) making the tender or exchange offer. If the Fund
desires to take action with respect to
-17-
any tender offer, exchange offer or other similar transaction, the Fund shall
notify Custodian (a) in the case of Foreign Securities, such number of Business
Days prior to the date on which Custodian is to take such action (which number
of days is in the Custodian's sole discretion) as will allow Custodian to take
such action in the relevant local market in a timely fashion, and (b) in the
case of all other Securities, at least five Business Days prior to the date on
which Custodian is to take such action.
3.15 CO-OPERATION. Custodian shall cooperate with and supply necessary
------------
information to the entity or entities appointed by the Fund to keep the books of
account of the Fund and/or to compute the value of the assets of the Fund.
ARTICLE IV
DUTIES OF CUSTODIAN WITH
RESPECT TO PROPERTY OF
THE FUND HELD OUTSIDE THE UNITED STATES
---------------------------------------
4.1 APPOINTMENT OF FOREIGN SUB-CUSTODIANS. Custodian may appoint sub-
-------------------------------------
custodians pursuant to Section 3.3 hereof or Eligible Foreign Custodians in
accordance with Rule 17f-5 under the 1940 Act as Foreign Sub-custodians
hereunder for the Fund's Securities and other assets maintained outside the
United States. Upon receipt of Written Instructions from the Fund to do so, the
Custodian shall cease the employment of any Foreign Sub-custodian for
maintaining custody of the Fund's assets.
4.2 ASSETS TO BE HELD. The Custodian shall limit the Securities and
-----------------
other assets maintained in the custody of an Eligible Foreign Custodian to: (a)
Foreign Securities, and (b) cash and cash equivalents in such amounts as the
Fund may determine.
4.3 FOREIGN SECURITIES DEPOSITORIES. Custodian or any Foreign Sub-
-------------------------------
custodian employed by it may maintain assets of the
-18-
Fund in Foreign Securities Depositories in accordance with Rule 17f-5 under the
1940 Act.
4.4 AGREEMENTS WITH FOREIGN SUB-CUSTODIANS. Fund shall approve in
--------------------------------------
writing (a) the appointment of each Foreign Sub-custodian and the agreement
pursuant to which the Custodian employs such Foreign Sub-custodian and (b) for
the appointment of each Eligible Foreign Custodian as a Foreign Sub-custodian,
the country or countries in which such Foreign Sub-custodian is authorized to
hold Securities, cash and other property of the Fund.
4.5 APPROVED FOREIGN SUB-CUSTODIANS. (a) Those Foreign Sub-custodians
-------------------------------
and the countries where and the Foreign Securities Depositories through which
they or the Custodian may hold Securities, cash and other property of the Fund
which the Fund has approved to date are set forth on Exhibit D hereto. Exhibit
D shall be amended from time to time as Foreign Sub-custodians, countries and/or
Foreign Securities Depositories are changed, added or deleted. The Fund shall
be responsible for informing the Custodian sufficiently in advance of a proposed
investment which is to be held in a country not listed in Exhibit E in order to
allow the Fund to give the approval required by Section 4.4 hereof and for
Custodian to put the appropriate arrangements in place with a Foreign Sub-
custodian.
(b) If the Fund invests in a Security to be held pursuant to this
Article before the foregoing procedures have been completed, such Security may
be held by such agent as Custodian may select, and Custodian shall bear no
liability to Fund for the actions of such agent, except to the extent Custodian
shall have recovered from such agent for any damages caused to Fund by such
agent.
4.6 REPORTS BY CUSTODIAN. Custodian shall supply to the Fund from time
--------------------
to time, as mutually agreed upon, reports in respect
-19-
of the safekeeping of the Securities and other assets of the Fund held by
Foreign Sub-custodians, including, but not limited to, advices or notifications
of transfers of Securities to or from the accounts maintained by Foreign Sub-
custodians for the Custodian on behalf of the Fund.
4.7 TRANSACTIONS IN FOREIGN CUSTODY ACCOUNT. (a) Upon receipt of Proper
---------------------------------------
Instructions given in any of the cases specified in Section 3.7 above, Custodian
shall cause the Foreign Sub-custodians to transfer, exchange or deliver Foreign
Securities owned by the Fund, subject to all local laws, regulations, customs,
procedures and practices applicable in the relevant local market; and
(b) Upon receipt of Proper Instructions given in any of the cases
specified in Section 3.6 above, Custodian shall cause the Foreign Sub-custodians
to pay out monies of the Fund, subject to all local laws, regulations, customs,
procedures and practices applicable in the relevant local market.
4.8 LIABILITY OF FOREIGN SUB-CUSTODIANS. The agreement pursuant to which
-----------------------------------
the Custodian employs a Foreign Sub-custodian shall require such Foreign Sub-
custodian to exercise reasonable care in the performance of its duties and shall
hold such Foreign sub-custodian responsible for any direct loss or damage
arising out of any willful misfeasance, bad faith or negligence of such Foreign
Sub-custodian in the performance of its obligations under such agreement or out
of its reckless disregard of such obligations. At its election, the Fund shall
be subrogated to the rights of Custodian with respect to any claims against a
Foreign Sub-custodian as a consequence of any such loss or damage if and to the
extent that the Fund has not been made whole for any such loss or damage.
-20-
4.9 LIABILITY OF CUSTODIAN. Notwithstanding anything to the contrary in
----------------------
Section 8.1 below or elsewhere in this Agreement, Custodian shall have no
greater liability to the Fund for the actions or omissions of any Foreign Sub-
custodian than any such Foreign Sub-custodian has to Custodian, and Custodian
shall not be required to discharge any such liability which may be imposed on it
unless and until such Foreign Sub-custodian has effectively indemnified
Custodian against it or has otherwise discharged its liability to Custodian in
full. Custodian shall have no liability for any loss or damage resulting from
acts or omissions of any Foreign Sub-custodian arising out of or caused,
directly or indirectly, by circumstances beyond such Foreign Sub-custodian's
reasonable control, including, without limitation, sovereign risk, as described
in Section 8.7, or "force majeure", as covered in Article X.
4.10 MONITORING RESPONSIBILITIES. Upon the request of the Fund, Custodian
---------------------------
shall annually furnish to the Fund information concerning all Foreign Sub-
custodians hereunder which shall be similar in kind and scope to that furnished
to the Fund in connection with the initial approval by the Fund of the
agreements pursuant to which Custodian employs such Foreign Sub-custodians or as
otherwise required by Rule 17f-5 under the 1940 Act.
4.11 TAX RECLAIMS. Upon the written request of the Fund, Custodian shall
------------
exercise, on behalf of the Fund, tax reclaim rights of Fund which arise in
connection with Foreign Securities in the Custody Account.
ARTICLE V
PURCHASE AND SALE OF INVESTMENTS OF THE FUND
--------------------------------------------
5.1 PURCHASE OF SECURITIES. Promptly upon each purchase of Securities
----------------------
for the Fund, Written Instructions shall be delivered to Custodian, specifying
(a) the name of the issuer or writer of such
-21-
Securities, and the title or other description thereof, (b) the number of
shares, principal amount (and accrued interest, if any), or other units
purchased, (c) the date of purchase and settlement, (d) the purchase price per
unit, (e) the total amount payable upon such purchase, and (f) the name of the
person to whom such amount is payable. Custodian shall upon receipt of such
Securities purchased by the Fund (or, if the Securities are transferred by means
of a private placement transaction, upon the receipt of such Securities or
payment instructions to Custodian which detail specific Securities to be
acquired) pay out of the moneys held for the account of the Fund the total
amount specified in such Written Instructions to the person named therein.
Custodian shall not be under any obligation to pay out moneys to cover the cost
of a purchase of Securities or other assets for the Fund if there is
insufficient cash available in the Custody Account.
5.2 SALE OF SECURITIES. Promptly upon each sale of Securities by the
------------------
Fund, Written Instructions shall be delivered to Custodian, specifying (a) the
name of the issuer or writer of such Securities, and the title or other
description thereof, (b) the number of shares, principal amount (and accrued
interest, if any), or other units sold, (c) the date of sale and settlement, (d)
the sale price per unit, (e) the total amount payable upon such sale, and (f)
the person to whom such Securities are to be delivered. Upon receipt of the
total amount payable to the Fund as specified in such Written Instructions,
Custodian shall deliver such Securities to the person specified in such Written
Instructions. Subject to the foregoing, Custodian may accept payment in such
form as shall be satisfactory to it, and may deliver Securities and arrange for
payment in accordance with the customs prevailing among dealers in Securities.
5.3 DELIVERY OF SECURITIES SOLD. Notwithstanding Section 5.2 above or
---------------------------
any other provision of this Agreement and subject, in the case of Foreign
Securities, to all local laws, regulations,
-22-
customs, procedures and practices applicable in the relevant local market,
Custodian, when instructed to deliver Securities against payment, shall be
entitled, but only if in accordance with generally accepted market practice, to
deliver such Securities prior to actual receipt of final payment therefor and,
exclusively in the case of Securities in physical form, to deliver such
Securities prior to receipt of payment. In any such case, the Fund shall bear
the risk that final payment for such Securities may not be made or that such
Securities may be returned or otherwise held or disposed of by or through the
person to whom they were delivered, and Custodian shall have no liability for
any of the foregoing.
5.4 PAYMENT FOR SECURITIES SOLD, ETC. In its sole discretion and from
---------------------------------
time to time, Custodian may credit the Custody Account, prior to actual receipt
of final payment thereof, with (a) proceeds from the sale of Securities which it
has been instructed to deliver against payment, (b) proceeds from the redemption
of Securities or other assets of the Fund, and (c) income from cash, Securities
or other assets of the Fund. Any such credit shall be conditional upon actual
receipt by Custodian of final payment and may be reversed if final payment is
not actually received in full. Custodian may, in its sole discretion and from
time to time, permit the Fund to use funds so credited to the Custody Account in
anticipation of actual receipt of final payment. Any such funds shall be
repayable immediately upon demand made by Custodian at any time prior to the
actual receipt of all final payments in anticipation of which funds were
credited to the Custody Account.
5.5 FINAL PAYMENT. For purposes of this Agreement, "final payment" means
-------------
payment in funds which are (or have become) immediately available, under
applicable law are irreversible, and are not subject to any security interest,
xxxx, xxxx or other encumbrance.
-23-
ARTICLE VI
REDEMPTION OF FUND SHARES
-------------------------
6.1 TRANSFER OF FUNDS. From such funds as may be available for the
-----------------
purpose in the Custody Account, and upon receipt of Proper Instructions
specifying that the funds are required to redeem Shares on account of the Fund,
Custodian shall wire each amount specified in such Proper Instructions to or
through such bank as the Fund may designate therein with respect to such amount.
6.2 NO DUTY REGARDING PAYING BANKS. Custodian shall not be responsible
------------------------------
for the payment or distribution by any bank designated in Proper Instructions
given pursuant to Section 6.1 above of any amount paid by Custodian to such bank
in accordance with such Proper Instructions.
ARTICLE VII
SEGREGATED ACCOUNTS
-------------------
Upon receipt of Proper Instructions, Custodian shall establish and maintain
a segregated account or accounts for and on behalf of the Fund, into which
account or accounts may be transferred cash and/or Securities, including
Securities maintained in a Depository Account:
(a) in accordance with the provisions of any agreement among the Fund,
Custodian and a broker-dealer (or any futures commission merchant), relating to
compliance with the rules of The Options Clearing Corporation or 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 Fund,
-24-
(b) for purposes of segregating cash or Securities in connection with
securities options purchased or written by the Fund or in connection with
financial futures contracts (or options thereon) purchased or sold by the Fund,
(c) which constitute collateral for loans of Securities made by the
Fund,
(d) for purposes of compliance by the Fund with requirements under the
1940 Act for the maintenance of segregated accounts by registered investment
companies in connection with reverse repurchase agreements, when-issued, delayed
delivery and firm commitment transactions, and short sales of securities, and
(e) for other proper purposes, but only upon receipt of, in addition
to Proper Instructions, a copy of a resolution of the Board of Directors,
certified by an Officer, setting forth the purpose or purposes of such
segregated account and declaring such purposes to be proper purposes of the
Fund.
ARTICLE VIII
CONCERNING THE CUSTODIAN
------------------------
8.1 STANDARD OF CARE. Custodian shall be held to the exercise of
----------------
reasonable care in carrying out its obligations under this Agreement, and shall
be without liability to the Fund for any loss, damage, cost, expense (including
attorneys' fees and disbursements), liability or claim which does not arise from
willful misfeasance, bad faith or negligence on the part of Custodian or
reckless disregard by Custodian of its obligations under this Agreement.
Custodian shall be entitled to rely on and may act upon advice of counsel on all
matters, and shall be without liability for any action reasonably taken or
omitted pursuant to such advice. In no event shall Custodian be liable for
special or consequential damages or be liable in any manner whatsoever for any
-25-
action taken or omitted upon instructions from the Fund or any agent of the
Fund. Custodian shall not be under any obligation at any time to ascertain
whether the Fund is in compliance with the 1940 Act, the regulations thereunder,
the provisions of its charter documents or by-laws, or its investment
objectives, policies and limitations as in effect from time to time.
8.2 ACTUAL COLLECTION REQUIRED. Custodian shall not be liable for, or
--------------------------
considered to be the custodian of, any cash belonging to the Fund or any money
represented by a check, draft or other instrument for the payment of money,
until Custodian or its agents actually receive such cash or collect on such
instrument.
8.3 NO RESPONSIBILITY FOR TITLE, ETC. So long as and to the extent that
---------------------------------
it is in the exercise of reasonable care, Custodian shall not be responsible for
the title, validity or genuineness of any property or evidence of title thereto
received or delivered by it or its agents.
8.4 LIMITATION ON DUTY TO COLLECT. Custodian shall promptly notify the
-----------------------------
Fund whenever any money or property due and payable from or on account of any
Securities held hereunder for the Fund is not timely received by it. Custodian
shall not, however, be required to enforce collection, by legal means or
otherwise, of any such money or other property not paid when due, but shall
receive the proceeds of such collections as may be effected by it or its agents
in the ordinary course of Custodian's custody and safekeeping business or of the
custody and safekeeping business of such agents.
8.5 EXPRESS DUTIES ONLY. Custodian shall have no duties or obligations
-------------------
whatsoever except such duties and obligations as are specifically set forth in
this Agreement, and no covenant or obligation shall be implied in this Agreement
against Custodian. Custodian shall have no discretion whatsoever with respect to
the
-26-
management, disposition or investment of the Custody Account and is not a
fiduciary to the Fund.
8.6 COMPLIANCE WITH LAWS. Custodian undertakes to comply with all
--------------------
applicable requirements of the Securities Act of 1933, the Securities Exchange
Act of 1934, the 1940 Act and the Commodities Exchange Act and any laws, rules
and regulations of governmental authorities having jurisdiction with respect to
the duties to be performed by Custodian hereunder. Except as specifically set
forth herein, Custodian assumes no responsibility for such compliance by the
Fund.
8.7 NO LIABILITY FOR SOVEREIGN RISK. Custodian shall not be liable for
-------------------------------
any loss involving any Securities, currencies, deposits or other property of the
Fund, whether maintained by it, a Foreign Sub-custodian, a Foreign Securities
Depository, an agent of Custodian or a Foreign Sub-custodian or a bank, or for
any loss arising from a foreign currency transaction or contract, where the loss
results from a sovereign risk or where the entity maintaining such Securities,
currencies, deposits or other property of the Fund, whether Custodian, a Foreign
Sub-custodian, a Foreign Securities Depository, an agent of Custodian or a
Foreign Sub-custodian or a bank, has exercised reasonable care maintaining such
property or in connection with the transaction involving such property. For
purposes of this Agreement, "sovereign risk" shall mean nationalization,
expropriation, devaluation, revaluation, confiscation, seizure, cancellation,
destruction or similar action by any governmental authority, de facto or de
jure; or enactment, promulgation, imposition or enforcement by any such
governmental authority of currency restrictions, exchange controls, taxes,
levies or other charges affecting the Fund's property; or acts of war,
terrorism, insurrection or revolution; or any other act or event beyond the
control of the Foreign Sub-custodian, the Foreign Securities Depository or the
agent of any of them.
-27-
ARTICLE IX
INDEMNIFICATION
---------------
9.1 INDEMNIFICATION. The Fund shall indemnify and hold harmless
---------------
Custodian, any sub-custodian and any nominee of Custodian or any sub-custodian,
from and against any loss, damages, cost, expense (including attorneys' fees and
disbursements), liability (including, without limitation, liability arising
under the Securities Act of 1933, the 1934 Act, the 1940 Act, and any federal,
state or foreign securities and/or banking laws) or claim arising directly or
indirectly (a) from the fact that Securities are registered in the name of any
such nominee, or (b) from any action or inaction by Custodian or such sub-
custodian or other agent (i) at the request or direction of or in reliance on
the advice of the Fund or any of its agents, or (ii) upon Proper Instructions,
or (c) generally, from the performance of its obligations under this Agreement,
provided that Custodian, any sub-custodian or any nominee of either of them
shall not be indemnified and held harmless from and against any such loss,
damage, cost, expense, liability or claim arising from Custodian's willful
misfeasance, bad faith, negligence or reckless disregard of its obligations
under this Agreement or, in the case of any sub-custodian or its nominee, from
such sub-custodian's willful misfeasance, bad faith, negligence or reckless
disregard of its obligations under the Agreement under which it is acting.
9.2 INDEMNITY TO BE PROVIDED. If the Fund requests Custodian to take any
------------------------
action with respect to Securities, which may, in the opinion of Custodian,
result in Custodian or its nominee becoming liable for the payment of money or
incurring liability of some other form, Custodian shall not be required to take
such action until the Fund shall have provided indemnity therefor to Custodian
in an amount and form satisfactory to Custodian.
-28-
9.3 SECURITY. As security for the payment of any present or future
--------
obligation or liability of any kind which the Fund may have to Custodian with
respect to or in connection with the Custody Account or this Agreement, the Fund
hereby pledges to Custodian all cash, Securities and other property of every
kind which is in the Custody Account or otherwise held for the Fund pursuant to
this Agreement, and hereby grants to Custodian a lien, right of set-off and
continuing security interest in such cash, Securities and other property.
ARTICLE X
FORCE MAJEURE
-------------
Neither Custodian nor the Fund shall be liable for any failure or delay in
performance of its obligations under this Agreement arising out of or caused,
directly or indirectly, by circumstances beyond its reasonable control,
including, without limitation, acts of God; earthquakes; fires; floods; wars;
civil or military disturbances; sabotage; strikes; epidemics; riots; power
failures; computer failure and any such circumstances beyond its reasonable
control as may cause interruption, loss or malfunction of utility,
transportation, computer (hardware or software) or telephone communication
service; accidents; labor disputes; acts of civil or military authority;
governmental actions; or inability to obtain labor, material, equipment or
transportation.
ARTICLE XI
REPRESENTATIONS AND WARRANTIES
------------------------------
Each of the Fund and Custodian represents and warrants for itself that (a)
it has all necessary power and authority to perform its obligations hereunder,
(b) the execution and delivery by it of this Agreement, and the performance by
it of its obligations under this Agreement, have been duly authorized by all
necessary action and will not violate any law, regulation, charter, by-law, or
other
-29-
instrument, restriction or provision applicable to it or by which it is bound,
and (c) this Agreement constitutes a legal, valid and binding obligation of it,
enforceable against it in accordance with its terms.
ARTICLE XII
COMPENSATION OF CUSTODIAN
-------------------------
The Fund shall pay Custodian such fees and charges as are set forth in the
fee schedule annexed hereto as Exhibit C, as such fee schedule may from time to
time be revised by Custodian upon 14 days' prior written notice to the Fund.
Any annual fee or other charges payable by the Fund shall be paid monthly by
automatic deduction from the Custody Account. Expenses incurred by Custodian in
the performance of its services hereunder, and all other proper charges and
disbursements of the Custody Account, shall be charged to the Custody Account by
Custodian and paid therefrom.
ARTICLE XIII
TAXES
-----
Any and all taxes, including any interest and penalties with respect
thereto, which may be levied or assessed under present or future laws or in
respect of the Custody Account or any income thereof shall be charged to the
Custody Account by Custodian and paid therefrom.
ARTICLE XIV
AUTHORIZED PERSONS
------------------
14.1 AUTHORIZED PERSONS. Custodian may rely upon and act in accordance
------------------
with any notice, confirmation, instruction or other communication received by it
from the Fund which is reasonably believed by Custodian to have been given or
signed on behalf of the Fund by one of the Authorized Persons designated by the
Fund in Exhibit A hereto, as it may from time to time be revised. The Fund
-30-
may revise Exhibit A hereto at any time by notice in writing to Custodian given
in accordance with Article XV below, but no revision of Exhibit A hereto shall
be effective until Custodian actually receives such notice.
14.2 INVESTMENT ADVISERS. Custodian may also act in accordance with any
-------------------
Written or Oral Instructions which are reasonably believed by Custodian to have
been given or signed by one of the persons designated from time to time by any
of the investment advisers of the Fund specified in Exhibit B hereto (if any) as
it may from time to time be revised. The Fund may revise Exhibit B hereto at
any time by notice in writing to Custodian given in accordance with Article XV
below, and each investment adviser specified in Exhibit B hereto (if any) may at
any time by like notice designate an Authorized Person or remove an Authorized
Person previously designated by it, but no revision of Exhibit B hereto (if any)
and no designation or removal by such investment adviser shall be effective
until Custodian actually receives such notice.
14.3 ORAL INSTRUCTIONS. Custodian may rely upon and act in accordance
-----------------
with Oral Instructions (as defined in Section 1.11 above). If Written
Instructions confirming Oral Instructions are not received by Custodian prior to
a transaction, it shall in no way affect the validity of the transaction
authorized by such Oral Instructions or the authorization of the Fund to effect
such transaction. Custodian shall incur no liability to the Fund in acting upon
Oral Instructions (as defined in Section 1.11 above). To the extent such Oral
Instructions vary from any confirming Written Instructions, Custodian shall
advise the Fund of such variance but unless confirming Written Instructions are
timely received, such Oral Instructions will govern. Either Custodian or Fund
may electronically record any instructions given by telephone and any other
telephone discussions with respect to the account of the Fund.
-31-
ARTICLE XV
NOTICES
-------
Unless otherwise specified herein, all demands, notices, instructions, and
other communications to be given hereunder shall be sent, delivered or given to
the recipient at the address set forth after its name hereinbelow:
IF TO THE FUND:
S&P STARS Portfolio - The Bear Xxxxxxx Funds
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx
----------------
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
IF TO CUSTODIAN:
Custodial Trust Company
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000-0000
Attention: Vice President - Trust Operations
---------------------------------
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or at such other address as either party shall have provided to the other by
notice given in accordance with this Article XV. Writing shall include
transmissions by or through teletype, facsimile, central processing unit
connection, on-line terminal and magnetic tape.
ARTICLE XVI
TERMINATION
-----------
Either party hereto may terminate this Agreement by giving to the other
party a notice in writing specifying the date of such termination, which shall
be not less than sixty (60) days after the date of the giving of such notice.
Upon the date set forth in such notice this Agreement shall terminate, and
Custodian shall, upon receipt of a notice of acceptance by the successor
custodian, on
-32-
that date (a) deliver directly to the successor custodian or its agents all
Securities (other than Securities held in a Book-Entry System, Securities
Depository or Foreign Securities Depository) and cash then owned by the Fund and
held by Custodian as custodian, and (b) transfer any Securities held in a Book-
Entry System, Securities Depository or Foreign Securities Depository to an
account of or for the benefit of the Fund, provided that the Fund shall have
paid to Custodian all fees, expenses and other amounts to the payment or
reimbursement of which it shall then be entitled.
ARTICLE XVII
MISCELLANEOUS
-------------
17.1 BUSINESS DAYS. Nothing contained in this Agreement shall require
-------------
Custodian to perform any function or duties on a day other than a Business Day.
17.2 GOVERNING LAW. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the State of New York, without regard to the
conflict of law principles thereof.
17.3 REFERENCES TO CUSTODIAN. The Fund shall not circulate any printed
-----------------------
matter which contains any reference to Custodian without the prior written
approval of Custodian, excepting printed matter contained in the prospectus or
statement of additional information for the Fund and such other printed matter
as merely identifies Custodian as custodian for the Fund. The Fund shall submit
printed matter requiring approval to Custodian in draft form, allowing
sufficient time for review by Custodian and its counsel prior to any deadline
for printing.
17.4 NO WAIVER. No failure by either party hereto to exercise, and no
---------
delay by such party in exercising, any right hereunder shall operate as a waiver
thereof. The exercise by either party hereto of any right hereunder shall not
preclude the exercise
-33-
of any other right, and the remedies provided herein are cumulative and not
exclusive of any remedies provided at law or in equity.
17.5 AMENDMENTS. This Agreement cannot be changed orally and no amendment
----------
to this Agreement shall be effective unless evidenced by an instrument in
writing executed by the parties hereto.
17.6 COUNTERPARTS. This Agreement may be executed in one or more
------------
counterparts, and by the parties hereto on separate counterparts, each of which
shall be deemed an original but all of which together shall constitute but one
and the same instrument.
17.7 SEVERABILITY. If any provision of this Agreement shall be invalid,
------------
illegal or unenforceable in any respect under any applicable law, the validity,
legality and enforceability of the remaining provisions shall not be affected or
impaired thereby.
17.8 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
----------------------
shall inure to the benefit of the parties hereto and their respective successors
and assigns; provided, however, that this Agreement shall not be assignable by
-------- -------
either party hereto without the written consent of the other party. Any
purported assignment in violation of this Section 17.8 shall be void.
17.9 HEADINGS. The headings of sections in this Agreement are for
--------
convenience of reference only and shall not affect the meaning or construction
of any provision of this Agreement.
-34-
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed in its name and on its behalf by its representative thereunto duly
authorized, all as of the day and year first above written.
S&P STARS PORTFOLIO - CUSTODIAL TRUST COMPANY
THE BEAR XXXXXXX FUNDS
By /s/ Xxxxx X. Xxxxxxx By /s/ Xxxxxx X. Xxxxxx
-------------------- --------------------
Authorized Officer Authorized Officer
-35-
EXHIBIT A
---------
AUTHORIZED PERSONS WITH ACCESS TO INVESTMENTS/*/
Set forth below are the names of the persons, whose specimen signatures are
on file with the Custodian, authorized by the Board of Trustees of The Bear
Xxxxxxx Funds to have access to the S&P STARS Portfolio's (the "Fund")
investments.
Name
----
Xxxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxx
_____________________
/*/Nothing herein shall prohibit any person designated as an Authorized Person
from giving Oral Instructions or Written Instructions to the Custodian, so long
as it does not result in delivery of or access to securities and similar
investments of the Fund by such person.
-36-
EXHIBIT B
---------
INVESTMENT ADVISERS
Bear Xxxxxxx Funds Management Inc.
EXHIBIT C
---------
CUSTODY FEES AND TRANSACTION CHARGES
DOMESTIC FEES. The Fund shall pay Custodian the following fees and charges
-------------
for assets in the United States ("Domestic Assets") and transactions in the
United States, all such fees and charges to be payable monthly:
(1) an annual fee of the greater of 0.01% (one basis point) per annum of
the value of the Domestic Assets in the Custody Account or $5,000, such fee to
be payable monthly based upon the total market value of such Domestic Assets as
determined on the last Business Day of the month for which such fee is charged;
(2) a transaction charge of $18 for each buy, sell or redemption
transaction executed in the Custody Account with respect to such Domestic Assets
as are book-entry Securities (but not for any such buy or sell in a repurchase
transaction representing a cash sweep investment for the Fund's account or the
investment by the Fund of collateral for a loan of Securities);
(3) a transaction charge of $50 for each receipt or delivery into or from
the Custody Account of such Domestic Assets as are Securities in physical form;
(4) a transaction charge for each repurchase transaction in the Custody
Account which represents a cash sweep investment for the Fund's account,
computed at a rate of 0.10% (ten basis points) per annum on the amount of the
purchase price paid or received by the Fund in such repurchase transaction;
(5) a charge of $10 for each funds transfer; and
(6) a service charge for each holding of Domestic Assets consisting of
Securities or other property sold by way of private placement or in such other
manner as to require services by Custodian which in the reasonable judgment of
Custodian are materially in excess of those ordinarily required for the holding
of publicly traded Securities in the United States.
INTERNATIONAL FEES. The Fund shall pay Custodian fees for assets outside
------------------
the United States ("Foreign Assets") and transaction charges and other charges
(including, without limitation, charges for funds transfers, tax reclaims, and
foreign exchange services) outside the United States, all such fees and charges
to be payable monthly, according to a schedule of such fees and charges specific
to each country in which Foreign Assets are held, such schedule to be provided
from time to time upon request.
Fees shall be based upon the total market value of the applicable Foreign
Assets as determined on the last Business Day of the month for which such fees
are charged.
EXHIBIT D
---------
APPROVED FOREIGN SUB-CUSTODIANS
Foreign Sub-custodian Country(ies) Securities Depositories
--------------------- ------------ -----------------------
(See Attached)
CITIBANK, N.A.
SEC RULE 17F-5 INFORMATION PACKAGE
AUGUST 1994
SECTION 2: OVERVIEW OF FOREIGN SUBCUSTODIANS & DEPOSITORIES
SECTION 2:
OVERVIEW OF CITIBANK'S
FOREIGN SUBCUSTODIAN AND
DEPOSITORY ARRANGEMENTS
2-01.0 SUBCUSTODIAN NETWORK
Colombia: Cititrust Colombia X.X.
Xxxxxxx 0X, Xx. 00-00,
Xxxxxx, Xxxxxxxx
Xxxxxxxxx: Citibank, N.A. (Argentina) Denmark: Den Danske Bank
Xxxxxxxxx Xxxxx 502/30 0-00 Xxxxxxx Xxxxx
0000 Xxxxxx Xxxxx, Xxxxxxxxx DK-1092 Copenhagen K.
Denmark
Australia: Citicorp Nominees Pty. Ltd. Finland: Kansallis-Osake-Pankki
000 Xxxxxxx Xxxxxx Xxxxxxxxxxxxxxxx 00
Xxxxxxxxx, XXX 0000 Xxxxxxxxx 00000 Xxxxxxxx, Finland
Austria: Citibank (Austria) A.G. France: Citibank S.A. (France)
Postfach 90 Cedex 36
Xxxxxxxxxxxxxxxxx 0 00000 Xxxxx la Defense, France
X-0000 Xxxxxx, Xxxxxxx
Banque Paribas
Belgium: Generale Bank 0 Xxx X'Xxxxx
Xxxxxxxx xx Xxxx 0 00000 Xxxxx, Xxxxxx
0000 Xxxxxxxx, Xxxxxxx
Brazil: Citibank, N.A. (Brazil) Germany: Citibank Aktiengesellschaft
Avenida Paulista 1111 Xxxx Xxxxxxx Xxx. 00,
Xxx Xxxxx, Xxxxxx 00000, Frankfurt/Main,
Germany
Canada: Citibank Canada Greece: Citibank, N.A. (Greece)
000 Xxxxx Xxxxxx Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx Othonos 8
M5J2M3, Canada Xxxxxx 00000, Xxxxxx
Chile: Citibank, N.A. (Chile) Hong Kong: Citibank, N.A. (Hong Kong)
Xxxxxxx 00 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxx Xxxxxxxx Xxxxx
0 Xxxxxx Xxxx
Xxxxxxx, Xxxx Xxxx
Xxxxx: Citibank, N.A. (Hong Kong) Hungary: Citibank Budapest Xx.
x/x Xxxxxxxx, X.X., 0000 Xxxxxxxx X00-00.
Hong Kong, Citicorp Tower, Vaci Utca
Xxxxxxxx Xxxxx, 0 Xxxxxx Xxxx, Xxxxxxx
Xxxxxxx, Xxxx Xxxx
Xxxxx: Citibank, N.A. (India) New Zealand: Citibank Nominees (New
Sakhar Bhavan Zealand) Ltd.
230 Backbay Reclamation 00 Xxxxxxx Xxxxxx Xxxx
Xxxxxxx Xxxxx Xxxxxxxx 0, Xxx Xxxxxxx
Bombay 400 021
Indonesia: Citibank, N.A. (Jakarta)
Xxxxx Xxxx. Xxxxxxxx Xx. 0 Xxxxxx: Xxxxxxxxxxx Xxxx
Xxxxxxx 00000, Xxxxxxxxx X.X. Xxx 0000 Xxxxxxx
0000 Xxxx 0, Xxxxxx
Xxxxxxx: Citibank, N.A. (Ireland)
IFSC House, Custom House Pakistan: Citibank, N.A. (Pakistan)
Quay, Xxxxxx 0 X.X. Xxx 0000
Xxxxxxx 00 Xxxxxxxxxx Xxxx
Xxxxxxx 00000
Xxxxx: Citibank, N.A. (Italy) Pakistan
Foro Buonaparte N. 00
Xxxxxxx Xxxxxxx 00000
00000 Xxxxx, Xxxxx
Japan: Citibank, N.A. (Japan) Peru: Citibank, N.A. (Lima)
Citicorp Center, Xx. Xxxxxx Xxxx 000,
0-000 Xxxxxxx Xxxxxxxxx, Torre Real 5t 0 Xxxx,
Xxxxxxxxx - xx, Xxxx 00
Xxxxx, Xxxxx Xxxx
Jordan: Citibank, N.A. (Jordan) Philippines: Citibank, N.A. (Philippines)
0xx Xxxxxx Xxxxxxxx Xxxxxx
Jordan Insurance Building 8741 Paseo de Roxas
Xxxxxx Xxxxxxxx Street Makati Metro
Amman, Jordan Manila, Philippines
Korea: Citibank, N.A. (Korea) Poland: Citibank Poland S.A.
89-29 Shinmun-Ro, Sentorska 12,
Chongro-ku 00-000 Xxxxxx,
Xxxxx, Xxxxx Poland
Luxembourg: Cedel S.A. Portugal: Citibank Portugal S.A.
00 Xxxxxxxxx Xxx Xxxxx, Xxxxxxxxx 00,
Xxxxxx-Xxxxxxxx Xxxxxxxxx 0xx xxxxx, 0000 Xxxxxx,
X-0000, Xxxxxxxxxx Xxxxxxxx
Malaysia: Citibank Berhad Puerto Rico: Citibank, N.A.
28-30 Medan Pasar 000 Xxxxx Xx Xxxx Xxxxxx
00000 Xxxxx Xxxxxx, Xxxxxxxx Xxx Xxxx, Xxxxxx Xxxx 00000
Xxxxxx: Citibank, N.A. (Mexico) Singapore: Citibank, N.A. (Singapore)
Paseo de la Reforma 000 XXX Xxxxxxxx #00-00
Xxxxxx Xxxx XX, 00000 Xxxxxx 0 Xxxxxxx Xxx
Xxxxxxxxx 0106
Netherlands: Citibank, N.A. (Netherlands)
"Europlaza", South Africa: First National Bank
Xxxxxxxxxxxxx 00 X, Xxxxxxxxx xxxxx,
0000 BE Amsterdam z.o., 0 Xxxxx Xxxxx,
Xxx Xxxxxxxxxxx Post Xxx 0000
Xxxxxxxxxxxx, 0000
Xxxxx Xxxxxx
Spain: Citibank, N.A. (Spain)
Xxxx Xxxxxx Y Xxxxxx 00
00000 Xxxxxx, Xxxxx
Sri Lanka: Citibank, N.A. (Sri Lanka)
67 Dharmapala Mawatha
X.X. Xxx 000
Xxxxxxx 0, Xxx Xxxxx
Xxxxxx: Skandinaviska Enskilda Banken
Xxxxxxx Xxxx 0
Xxxxxxxxx, Xxxxxx
Xxxxxxxxxxx: Citibank (Switzerland)
Xxxxxxxxxxxxx 00,
Xxxx Xxxxxx Xxx 00
0000 Xxxxxx, Xxxxxxxxxxx
Taiwan: Citibank, N.A. (Taiwan)
Taipei Branch
Xx. 00 Xxxx Xxxxx Xxxx Xxxx
Xxx. 0
Xxxxxx, Xxxxxx
Xxxxxxxx: Citibank, N.A. (Thailand)
000 Xxxxx Xxxxxx Xxxx
Xxxxxxx 00000, Xxxxxxxx
Turkey: Citibank, N.A. (Turkey)
Buyukedere Caddesi,
Xx. 000, Xxxxxxxx 00000
Xxxxxxxx, Xxxxxx
Xxxxxx Xxxxxxx: Citibank, N.A.
00 Xxxxxxxxxx Xx,
Xxxxxxxx, Xxxxxx XX 00 0XX
Xxxxxx Xxxxxxx
The First National Bank of
Chicago
00 Xxxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX, Xxxxxxx
Uruguay: Citibank, N.A. (Uruguay)
Xxxxxxx 000
X.X. Xxx 000
Xxxxxxxxxx
Xxxxxxx
Venezuela: Citibank, N.A. (Caracas)
Carmelitas a Xxxxxxxxxx
Xxxxxxxx Xxxxxxxx
Xxxxxxx 0000, Xxxxxxxxx
2-01.1 STATUS AND SHAREHOLDERS' EQUITY
COUNTRY SUBCUSTODIAN STATUS SHAREHOLDERS'
EQUITY
Argentina Citibank, N.A. Branch NA
Australia Citicorp Nominees Pty. Ltd. Subsidiary SEC Exemption
Austria Citibank (Austria) A.G. Subsidiary SEC Exemption
Belgium Generale Bank Correspondent US$ 2,260 MM
Brazil Citibank, N.A. Branch NA
Canada Citibank Canada Subsidiary US$ 299.9 MM
Chile Citibank, N.A. Branch NA
China Citibank, N.A. Branch NA
Colombia Cititrust Colombia S.A. Subsidiary SEC Exemption
Sociedad Fiduciary
Denmark Den Danske Bank Correspondent US$ 2,975 MM
Finland Kansallis-Osake-Pankki Correspondent US$ 1,325 MM
France Citibank S.A. Subsidiary SEC Exemption
France Banque Paribas Correspondent US$ 2,998 MM
Germany Citibank Aktiengesellschaft Subsidiary US$ 298 MM
Greece Citibank, N.A. Branch NA
Hong Kong Citibank, N.A. Branch NA
Hungary Citibank Budapest Rt. Subsidiary SEC Exemption
India Citibank, N.A. Branch NA
Indonesia Citibank, N.A. Branch NA
Ireland Citibank, N.A. Branch NA
Italy Citibank, N.A. Branch NA
Japan Citibank, N.A. Branch XX
Xxxxxx Citibank, N.A. Branch NA
Korea Citibank, N.A. Branch NA
Luxembourg Cedel S.A. Depository NA
Malaysia Citibank Berhad Subsidiary US$ 145MM
Mexico Citibank, N.A. Branch NA
Netherlands Citibank, N.A. Branch NA
New Zealand Citibank Nominees (NZ) Ltd. Subsidiary SEC Exemption
Norway Christiania Bank Correspondent US$ 512MM
Pakistan Citibank, N.A. Branch NA
Peru Citibank, N.A. Branch NA
Philippines Citibank, N.A. Branch NA
Poland Citibank Poland S.A. Subsidiary SEC Exemption
Portugal Citibank Portugal S.A. Subsidiary SEC Exemption
Singapore Citibank, N.A. Branch NA
South Africa First National Bank of Southern Africa Ltd. Correspondent US$ 620MM
Spain Citibank, N.A. Branch NA
Sri Lanka Citibank, N.A. Branch NA
Sweden Skandinaviska Enskilda Banken Correspondent US$ 669MM
Switzerland Citibank (Switzerland) Affiliate US$ 198MM
Taiwan Citibank, N.A. Branch NA
Thailand Citibank, N.A. Branch NA
Turkey Citibank, N.A. Branch NA
U.K. Citibank, N.A. Branch NA
Uruguay Citibank, N.A. Branch NA
Venezuela Citibank, N.A. Branch NA
2-02.0 DEPOSITORIES
Argentina: Caja de Valores ("CDV") Finland: Central Share Registry
The Helsinki Money Market Center
Australia: The Reserve Bank Information France: Societe Interprofessionnelle
and Transfer System ("RITS") pour la Compensation de
Valeurs Mobilieres
Austraclear ("SICOVAM")
Austria: Wertpapiersammelbank Banque de France
bei der Oesterreichische
Kontrollbank ("OEKB/WSB") Germany: Deutscher Kassenverein A.G.
("DKV")
Belgium: Caisse Interprofessionelle
de Depots et de Virements Greece: Central Securities Depository,
de Titres S.A. ("CIK") S.A. ("CSD")
Banque Nationale Hong Kong: Central Clearing and
de Belgique ("BNB") Settlement System
("CCASS")
Brazil: BOVESPA's Registered
Shares Fungible Custody Hungary: The Central Depository and
("BOVESPA") Clearing House ("CDCH")
Canada: The Canadian Depository for Ireland: Gilt Settlement Office ("GSO")
Securities Limited ("CDS")
Italy: Monte Titoli Instituto per la
China: The Shanghai Securities Custodia e l'Amministrazione
Central Clearing and Accentrata di Valori Mibiliar
Registration Corporation ("Monte Titoli")
("SSCCRC")
The Bank of Italy
The Shenzhen Securities
Registrars Co. Ltd. - registrar Japan: Japan Securities Depository
for three banks forming a Center ("JASDEC")
decentralized depository
structure The Bank of Japan ("BOJ")
Denmark: Vaerdipapircentralen ("VP") Korea: The Korea Securities
Depository ("KSD")
Luxembourg: CEDEL, S.A.
Malaysia: Malaysian Central
Depository Sdn. Bhd.
("MCD")
Mexico: Instituto para el Deposito de
Valores ("S.D. Indeval")
Netherlands: Nederlands Centraal Instituut
voor Giraal Effectenverkeer
B.V. ("Necigef")
New Zealand: Austraclear
Norway: The Norwegian Registry of
Securities -
Verdipapirsentralen ("VPS")
Peru: Caja de Valores ("CAVAL")
Poland: The National Depository of Securities
(Krajowy Depozyt Papierow Wartosciowych)
Portugal: Central de Registo e Valores Mobiliarios
Singapore: Central Depository (PTE) Ltd.
South Africa: The Central Depository (Pty) Ltd.
Spain: Xxxxxxx xx Xxxxxxxxxxxx x
Xxxxxxxxxxx xx Xxxxxxx ("XXXX")
Xxx Xxxxx: Central Depository System (Pvt) Limited
Sweden: Vardepapperscentralen VPC AB ("VPC")
Switzerland: Schwerzerische Effekten-Giro AG ("SEGA")
Taiwan: Taiwan Securities Central
Depository Co., Ltd. ("TSCD")
Thailand: Share Depository Center ("SDC")
Turkey: Istanbul Stock Exchange Settlement
and Custody Company Inc.
United
Kingdom: Central Gilts Office ("CGO")
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK
GLOBAL CUSTODY NETWORK
START DEPOSITORY IN ADDITION TO THE CENTRAL BANK,
COUNTRY DATE SUBCUSTODIAN IF APPLICABLE.
Argentina 1991 Xxxxxx Guaranty Trust Co. of Caja de Valores
N.Y. - Buenos Aires Office
Xxxxxxxxx 0000 ANZ Banking Group Austraclear
Austria 1988 Creditanstalt-Bankverein OeKB-WSB (Wertpapiersammelbank bei der
Oesterreichischen Kontrollbank AG)
Belgium 1977 Xxxxxx Guaranty Trust Co. of CIK (Caisse Interprofessionnelle de
N.Y. - Brussels Office Depots et de Virements de Titres)
Euroclear Clearance System Limited
Brazil 1991 Xxxxxx Guaranty Trust Co. of BOVESPA (Bolsa de Valores de Sao Paolo;
N.Y. - Sao Paulo Office equities)
BVRJ (Bolsa de Valores de Rio de Janeiro,
equities)
CETIP (Central de Custodia e Liquidacao
Financeira de Titulos; corporate bonds)
SELEC (Sistema Especial de Liquidacao e
Custodia; gov't securities)
Canada 1978 Canadian Imperial Bank of CDS (Canadian Depository for Securities)
Commerce
Xxxxx 0000 Xxxxxxxx, N.A.
People's Republic 1992 Hongkong and Shanghai Banking
of China- Corporation
Shanghai and
Shenzhen
Xxxxx Xxxxxxxx 0000 Xxxxxxxxxxxxxx Obchodni Banka, A.S.
Denmark 1985 Den Danske Bank VP (Vaerdipapircentralen; Danish
Securities Centre)
Finland 1985 Union Bank of Finland
France 1977 Xxxxxx Guaranty Trust Co. of SICOVAM (Societe Interprofessionnelle
N.Y. - Paris Office Pour La Compensation des Valeurs
Mobilieres)
Germany 1977 Xxxxxx Guaranty Trust Co. of DKV (Deutscher Kassenverein)
N.Y. - Frankfurt Office
Greece 1989 National Bank of Greece S.A.
Hong Kong 1978 Hongkong and Shanghai Banking CCASS (Central Clearing and Settlement
Corporation System)
Xxxxxxx 0000 Xxxxxxxx N.A.
India 1993 Hongkong and Shanghai Banking
Corporation
Indonesia 1990 Hongkong and Shanghai Banking
Corporation
Ireland 1988 Allied Irish Banks PLC
Israel 1994 Bank Leumi LE TASE (Tel Aviv Stock Exchange)
Clearing House Ltd.
Italy 1977 Xxxxxx Guaranty Trust Co. of N.Y. Monte Titoli S.p.A.
Milan Office
Japan 1977 The Fuji Bank, Limited JASDEC (Japan Securities Depository
Center)
JSA (Japan Securities Agent)
Jordan 1994 Citibank, N.A.
Korea 1991 Bank of Seoul KSSC (Korea Securities Settlement
Corporation)
Luxembourg 1992 Banque Internationale A CEDEL (Centrale de Livraison des
Luxembourg, S.A. Valeurs Mobilieres)
Malaysia 1987 Hongkong and Shanghai Banking SCANS (Securities Clearing Automated
Corporation Network Services)
Xxxxxx 0000 Xxxxxxxx, N.A. Indeval
Morocco 1994 Banque Xxxxxxxxxxx xx Xxxxx
Xxxxxxxxxxx 0000 Bank Labouchere nv NECIGEF (Nederlands Centraal Instituut
Voor Giraal Effectenverkeer BV)
New Zealand 1982 ANZ Banking Group Ltd.
Norway 1978 Den Norske Bank VPS (Verdipapirsentralen; Norwegian
Registry of Securities)
Pakistan 1994 Citibank, N.A.
Xxxx 0000 Xxxxxxxx, N.A. CAVAL (Caja de Valores)
Philippines 1990 Hongkong and Shanghai Banking
Corporation
Poland 1993 Bank Handlowy
Portugal 0000 Xxxxx Xxxxxxxx Xxxxx X
Xxxxxxxxx xx Xxxxxx
Xxxxxxxxx 1988 Development Bank of Singapore (CDP) Xxxxxxx Xxxxxxxxxx Xxx
Xxxxx Xxxxxx 0000 First National Bank of Southern
Africa
Spain 1977 Xxxxxx Guaranty Trust Co. of
N.Y. - Madrid Office
Sri Lanka 1992 Hongkong and Shanghai Banking
Corporation
Sweden 1985 Skandinaviska Enskilda Banken VPC (Vaerdepappercentralen; Securities
Register Centre)
Switzerland 1977 Bank Leu SEGA (Schweizerische Effekten - Giro AG)
Taiwan 1992 Hongkong and Shanghai Banking
Corporation
Thailand 1988 Hongkong and Shanghai Banking
Corporation
Turkey 1990 Citibank, N.A. Istanbul Stock Exchange Settlement and
Ottoman Bank Custody Company, Inc. (I.M.K.B. Takas
ve Saklama A.S.)
United Kingdom 1977 Xxxxxx Guaranty Trust Co. of N.Y. TALISMAN (Transfer, Accounting and
London Office Lodgement for Investors, Stock Management
for Jobbers)
CGO (Central Gilts Office)
CMS (Central Money Market Office)
United States of 1977 Xxxxxx Guaranty Trust Co. of N.Y. The Federal Reserve Bank of New York
America The Depository Trust Co.
The Participants Trust Co.
Venezuela 1991 Citibank, N.A.
EXHIBIT (8)
CUSTODY AGREEMENT
This AGREEMENT, dated as of June 7, 1995, by and between THE INSIDERS
SELECT PORTFOLIO (the "Fund"), a portfolio of The Bear Xxxxxxx Funds (the
"Company"), an unincorporated business trust organized under the laws of the
Commonwealth of Massachusetts, and CUSTODIAL TRUST COMPANY, a bank organized and
existing under the laws of the State of New Jersey (the "Custodian").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Fund desires that its Securities, cash and other assets be
held and administered by Custodian pursuant to this Agreement;
WHEREAS, the Fund is an investment portfolio represented by a series of
Shares constituting part of the capital stock of the Company, an open-end
management investment company registered under the 1940 Act (as hereinafter
defined);
WHEREAS, Custodian represents that it is a bank having the qualifications
prescribed in Section 26(a)(i) of the 1940 Act;
NOW, THEREFORE, in consideration of the mutual agreements herein made, the
Fund and Custodian hereby agree as follows:
ARTICLE I
DEFINITIONS
-----------
Whenever used in this Agreement, the following terms, unless the context
otherwise requires, shall mean:
1.1 "AUTHORIZED PERSON" means any Officer or other person duly authorized
-----------------
by resolution of the Board of Directors to give Oral Instructions and Written
Instructions on behalf of the Fund and identified, by name or by office, in
Exhibit A hereto or any person duly designated to do so by an investment adviser
of the Fund specified by the Fund in Exhibit B hereto.
1.2 "BOARD OF DIRECTORS" means the Board of Trustees of the Fund or, when
------------------
permitted under the 1940 Act, the Executive Committee thereof, if any.
1.3 "BOOK-ENTRY SYSTEM" means a book-entry system maintained by a Federal
-----------------
Reserve bank as provided for in Subpart O of Treasury Circular Xx. 000, 00 XXX
306, in Subpart B of 31 CFR Part 350, or in such other book-entry regulations of
federal agencies as are substantially in the form of such Subpart O.
1.4 "BUSINESS DAY" means any day recognized as a settlement day by The
------------
New York Stock Exchange, Inc. and on which banks in the State of New Jersey are
open for business.
1.5 "CUSTODY ACCOUNT" means the account in the name of the Fund, which is
---------------
provided for in Section 3.2 below.
1.6 "ELIGIBLE FOREIGN CUSTODIAN" means any banking institution, trust
--------------------------
company or other entity organized under the laws of a country other than the
United States which is eligible under Rule 17f-5 under the 1940 Act to act as a
sub-custodian for Foreign Securities and other assets of the Fund held outside
the United States.
1.7 "FOREIGN SECURITIES" means Securities as defined in paragraph (c)(1)
------------------
of Rule 17f-5 under the 1940 Act.
2
1.8 "FOREIGN SECURITIES DEPOSITORY" means a securities depository or
-----------------------------
clearing agency as defined in subparagraphs (c)(2)(iii) or (iv) of Rule 17f-5
under the 0000 Xxx.
1.9 "1940 ACT" means the Investment Company Act of 1940, as amended.
--------
1.10 "OFFICER" means the President, any Vice President, the Secretary, any
-------
Assistant Secretary, the Treasurer, or any Assistant Treasurer of the Fund.
1.11 "ORAL INSTRUCTIONS" means instructions orally transmitted to and
-----------------
accepted by Custodian which are (a) reasonably believed by Custodian to have
been given by an Authorized Person, (b) recorded and kept among the records of
Custodian made in the ordinary course of business, and (c) orally confirmed by
Custodian.
1.12 "PROPER INSTRUCTIONS" means Oral Instructions or Written
-------------------
Instructions. Proper Instructions may be continuing Written Instructions when
deemed appropriate by both parties.
1.13 "SECURITIES" includes, without limitation, common and preferred
----------
stocks, bonds, call options, put options, debentures, notes, bank certificates
of deposit, forward contracts, futures contracts (including those related to
indexes), options on futures contracts or indexes, bankers' acceptances,
mortgage-backed securities or other obligations, and any certificates, receipts,
warrants or other instruments or documents representing rights to receive,
purchase or subscribe for the same, or evidencing or representing any other
rights or interests therein, or any similar property or assets that Custodian
has the facilities to clear and to service.
1.14 "SECURITIES DEPOSITORY" means The Depository Trust Company and
---------------------
(provided that Custodian has received a copy of a
3
resolution of the Board of Directors of the Fund, certified by an Officer,
specifically approving the use thereof as a depository for the Fund) any other
clearing agency registered with the Securities and Exchange Commission under
Section 17A of the Securities Exchange Act of 1934 (the "1934 Act"), which acts
as a system for the central handling and deposit of Securities where all
Securities of any particular class or series of an issuer deposited within the
system are treated as fungible and may be transferred or pledged by bookkeeping
entry without physical delivery of the Securities.
1.15 "SHARES" means the shares into which the capital stock of the Fund is
------
divided.
1.16 "WRITTEN INSTRUCTIONS" means (a) written communications received by
--------------------
Custodian and signed by two persons reasonably believed by Custodian to be
Authorized Persons, or (b) communications by telex or any other such system from
two persons reasonably believed by Custodian to be Authorized Persons, or (c)
communications between electro-mechanical or electronic devices.
ARTICLE II
APPOINTMENT OF CUSTODIAN
------------------------
2.1 APPOINTMENT. The Fund hereby appoints Custodian as custodian of all
-----------
such Securities, cash and other assets as may be acceptable to Custodian and
from time to time delivered to it by the Fund or others for the account of the
Fund.
2.2 ACCEPTANCE. Custodian hereby accepts appointment as such custodian
----------
and agrees to perform the duties thereof as hereinafter set forth.
4
ARTICLE III
CUSTODY OF CASH AND SECURITIES
------------------------------
3.1 SEGREGATION. All Securities and non-cash property of the Fund in the
-----------
possession of Custodian (other than Securities maintained by Custodian in a
Securities Depository or Book-Entry System) shall be physically segregated from
other Securities and non-cash property in the possession of Custodian and shall
be identified as belonging to the Fund.
3.2 CUSTODY ACCOUNT. (a) Custodian shall open and maintain in its trust
---------------
department a custody account in the name of the Fund, subject only to draft or
order of Custodian, in which Custodian shall enter and carry all Securities,
cash and other assets of the Fund which are delivered to Custodian and accepted
by it. Custodian shall not be under any duty or obligation to require the Fund
to deliver to it any Securities or funds owned by the Fund and shall have no
responsibility or liability for or on account of Securities or funds not so
delivered.
(b) If Custodian at any time fails to receive any of the documents
referred to in Section 3.5(a) below, then, until such time as it receives such
document, it shall not be obligated to receive any Securities of the Fund into
the Custody Account and shall be entitled to return to the Fund any Securities
of the Fund that it is holding.
(c) Custodian may, but shall not be obligated to, hold Securities
that may be held only in physical form.
(d) Custodian is authorized to disclose the name, address and
securities positions of the Fund to the issuers of such securities when
requested by them to do so.
5
3.3 APPOINTMENT OF AGENTS. (a) Custodian may employ suitable agents,
---------------------
which may include affiliates of Custodian, such as Bear, Xxxxxxx & Co. Inc. or
Bear, Xxxxxxx Securities Corp., both of which are registered broker-dealers.
The appointment of any agent pursuant to this Section 3.3(a) shall not relieve
Custodian of any of its obligations or liabilities under this Agreement.
However, no Book-Entry System, Securities Depository, Foreign Securities
Depository or other securities depository or clearing agency (whether foreign or
domestic) which it is or may become standard market practice to use for the
comparison and settlement of trades in securities shall be an agent or sub-
contractor of Custodian for purposes of this Section 3.3(a) or otherwise.
(b) In its discretion, Custodian may appoint, and at any time remove,
any domestic bank or trust company which is qualified to act as a custodian
under the 1940 Act as sub-custodian to hold Securities and cash of the Fund and
to carry out such other provisions of this Agreement as it may determine, and
may also open and maintain one or more banking accounts with such a bank or
trust company (any such accounts to be in the name of Custodian and subject only
to its draft or order), provided, however, that the appointment of any such
agent or opening and maintenance of any such accounts shall be at Custodian's
expense and shall not relieve Custodian of any of its obligations or liabilities
under this Agreement.
(c) Upon receipt of Written Instructions to do so and at the Fund's
expense, Custodian shall appoint as sub-custodian such domestic bank or trust
company as is named therein, provided that (i) such bank or trust company is
qualified to act as a custodian under the 1940 Act, and (ii) notwithstanding
anything to the contrary in Section 7.1 below or elsewhere in this Agreement,
Custodian shall have no greater liability to the Fund for the actions or
omissions of any such sub-custodian than any such sub-custodian has to
Custodian, and Custodian shall not be required
6
to discharge any such liability which may be imposed on it unless and until such
sub-custodian has effectively indemnified Custodian against it or has otherwise
discharged its liability to Custodian in full.
3.4 DELIVERY OF ASSETS TO CUSTODIAN. The Fund shall deliver to Custodian
-------------------------------
the Fund's Securities, cash and other assets, which are acceptable to Custodian,
including (a) payments of income, payments of principal and capital
distributions received by the Fund with respect to such Securities, cash or
other assets owned by the Fund at any time during the term of this Agreement,
and (b) cash received by the Fund for the issuance, at any time during such
term, of Shares. Custodian shall not be responsible for such Securities, cash
or other assets until actually received by it.
3.5 SECURITIES DEPOSITORIES AND BOOK-ENTRY SYSTEMS. Custodian may
----------------------------------------------
deposit and/or maintain Securities of the Fund in a Securities Depository or in
a Book-Entry System, subject to the following provisions:
(a) Prior to a deposit of Securities of the Fund in any Securities
Depository or Book-Entry System, the Fund shall deliver to Custodian a
resolution of the Board of Directors of the Fund, certified by an Officer,
authorizing and instructing Custodian (and any sub-custodian appointed pursuant
to Section 3.3 above) on an on-going basis to deposit in such Securities
Depository or Book-Entry System all Securities eligible for deposit therein and
to make use of such Securities Depository or Book-Entry System to the extent
possible and practical in connection with its performance hereunder (or under
the applicable sub-custody agreement in the case of such sub-custodian),
including, without limitation, in connection with settlements of purchases and
sales of Securities, loans of Securities, and deliveries and returns of
collateral consisting of Securities.
7
(b) Securities of the Fund kept in a Book-Entry System or Securities
Depository shall be kept in an account ("Depository Account") of Custodian in
such Book-Entry System or Securities Depository which includes only assets held
by Custodian as a fiduciary, custodian or otherwise for customers.
(c) The records of Custodian with respect to Securities of the Fund
maintained in a Book-Entry System or Securities Depository shall at all times
identify such Securities as belonging to the Fund.
(d) If Securities purchased by the Fund are to be held in a Book-Entry
System or Securities Depository, Custodian shall pay for such Securities upon
(i) receipt of advice from the Book-Entry System or Securities Depository that
such Securities have been transferred to the Depository Account, and (ii) the
making of an entry on the records of Custodian to reflect such payment and
transfer for the account of the Fund. If Securities sold by the Fund are held
in a Book-Entry System or Securities Depository, Custodian shall transfer such
Securities upon (i) receipt of advice from the Book-Entry System or Securities
Depository that payment for such Securities has been transferred to the
Depository Account, and (ii) the making of an entry on the records of Custodian
to reflect such transfer and payment for the account of the Fund.
(e) Custodian shall provide the Fund with copies of any report
obtained by Custodian from a Book-Entry System or Securities Depository in which
Securities of the Fund are kept on the internal accounting controls and
procedures for safeguarding Securities deposited in such Book-Entry System or
Securities Depository.
(f) At its election, the Fund shall be subrogated to the rights of
Custodian with respect to any claim against a Book-Entry System or Securities
Depository or any other person for any loss or
8
damage to the Fund arising from the use of such Book-Entry System or Securities
Depository, if and to the extent that the Fund has not been made whole for any
such loss or damage.
3.6 DISBURSEMENT OF MONEYS FROM THE CUSTODY ACCOUNT. Upon receipt of
-----------------------------------------------
Proper Instructions, Custodian shall disburse moneys from the Custody Account,
but only in the following cases:
(a) For the purchase of Securities for the Fund but only (i) in the
case of Securities (other than options on Securities, futures contracts and
options on futures contracts), against the delivery to Custodian (or any sub-
custodian appointed pursuant to Section 3.3 above) of such Securities registered
as provided in Section 3.9 below or in proper form for transfer or, if the
purchase of such Securities is effected through a Book-Entry System or
Securities Depository, in accordance with the conditions set forth in Section
3.5 above; (ii) in the case of options on Securities, against delivery to
Custodian (or such sub-custodian) of such receipts as are required by the
customs prevailing among dealers in such options; (iii) in the case of futures
contracts and options on futures contracts, against delivery to Custodian (or
such sub-custodian) of evidence of title thereto in favor of the Fund, the
Custodian, any such sub-custodian or any nominee referred to in Section 3.9
below; and (iv) in the case of repurchase or reverse repurchase agreements
entered into by the Fund, against delivery of the purchased Securities either in
certificate form or through an entry crediting Custodian's account at a Book-
Entry System or Securities Depository with such Securities;
(b) In connection with the conversion, exchange or surrender, as set
forth in Section 3.7(f) below, of Securities owned by the Fund;
(c) For the payment of any dividends or capital gain distributions
declared by the Fund;
9
(d) In payment of the redemption price of Shares as provided in
Article VI below;
(e) For the payment of any expense or liability incurred by the Fund,
including but not limited to the following payments for the account of the Fund:
interest, taxes, administration, investment management, investment advisory,
accounting, auditing, transfer agent, custodian, trustee and legal fees; and
other operating expenses of the Fund; in all cases, whether or not such expenses
are to be in whole or in part capitalized or treated as deferred expenses;
(f) For transfer in accordance with the provisions of any agreement
among the Fund, Custodian and a broker-dealer, relating to compliance with rules
of The Options Clearing Corporation and of any registered national securities
exchange (or of any similar organization or organizations) regarding escrow or
other arrangements in connection with transactions by the Fund;
(g) For transfer in accordance with the provisions of any agreement
among the Fund, Custodian, and a futures commission merchant, relating to
compliance with the rules of the Commodity Futures Trading Commission and/or any
contract market (or any similar organization or organizations) regarding account
deposits in connection with transactions by the Fund;
(h) For the funding of any uncertificated time deposit or other
interest-bearing account with any banking institution (including Custodian), but
only if the payment instructions to Custodian detail specific Securities to be
acquired;
(i) For the purchase from a bank or other financial institution of
loan participations, but only if Custodian has in its possession a copy of the
agreement between the Fund and such bank or other financial institution with
respect to the purchase of
10
such loan participations and the payment instructions to Custodian detail
specific assets to be acquired;
(j) For the purchase and sale of foreign currencies or options to
purchase and sell foreign currencies for spot and future delivery on behalf and
for the account of the Fund pursuant to contracts with such banks and other
financial institutions, including Custodian, any sub-custodian and any affiliate
of Custodian, as principal, as are approved and authorized by the Fund, but only
if the payment instructions to Custodian detail specific assets to be acquired;
(k) For transfer to a broker-dealer registered under the 1934 Act or
in accordance with the provisions of any agreement among the Fund, Custodian and
such a broker-dealer as margin for a short sale of Securities;
(l) For the payment of the amounts of dividends received with respect
to Securities sold short; and
(m) For any other proper purpose, but only upon receipt, in addition
to Proper Instructions, of a copy of a resolution of the Board of Directors,
certified by an Officer, specifying the amount and purpose of such payment,
declaring such purpose to be a proper purpose of the Fund, and naming the person
or persons to whom such payment is to be made.
3.7 DELIVERY OF SECURITIES FROM THE CUSTODY ACCOUNT. Upon receipt of
-----------------------------------------------
Proper Instructions, Custodian shall release and deliver Securities of the Fund
from the Custody Account but only in the following cases:
(a) Upon the sale of Securities for the account of the Fund but,
subject to Section 5.3 below, only against receipt of
11
payment therefor in cash, by certified or cashiers' check or bank credit;
(b) In the case of a sale effected through a Book-Entry System or
Securities Depository, in accordance with the provisions of Section 3.5 above;
(c) To an offeror's depository agent in connection with tender or
other similar offers for Securities of the Fund; provided that, in any such
case, the cash or other consideration is to be delivered to Custodian;
(d) To the issuer thereof or its agent (i) for transfer into the name
of the Fund or any of the nominees referred to in Section 3.9 below, or (ii) for
exchange for a different number of certificates or other evidence representing
the same aggregate face amount or number of units; provided that, in any such
case, the new Securities are to be delivered to Custodian;
(e) To the broker selling Securities, for examination in accordance
with the "street delivery" custom;
(f) For exchange or conversion pursuant to any plan of merger,
consolidation, recapitalization, reorganization or readjustment of the issuer of
such Securities, or pursuant to provisions for conversion contained in such
Securities, or pursuant to any deposit agreement, including surrender or receipt
of underlying Securities in connection with the issuance or cancellation of
depository receipts; provided that, in any such case, the new Securities and
cash, if any, are to be delivered to Custodian;
(g) Upon receipt of payment therefor pursuant to any repurchase
agreement entered into by the Fund;
12
(h) In the case of warrants, rights or similar Securities, upon the
exercise thereof, provided that, in any such case, the new Securities and cash,
if any, are to be delivered to Custodian;
(i) For delivery in connection with any loans of Securities pursuant
to any securities loan agreement entered into by the Fund, but only against
receipt of such collateral as is required under such securities loan agreement;
(j) For delivery as security in connection with any borrowings by the
Fund requiring a pledge of assets by the Fund, but only against receipt by
Custodian of the amounts borrowed;
(k) Pursuant to any authorized plan of liquidation, reorganization,
merger, consolidation or recapitalization of the Fund;
(l) For delivery in accordance with the provisions of any agreement
among the Fund, Custodian and a broker-dealer, relating to compliance with the
rules of The Options Clearing Corporation and of any registered national
securities exchange (or of any similar organization or organizations) regarding
escrow or other arrangements in connection with transactions by the Fund;
(m) For delivery in accordance with the provisions of any agreement
among the Fund, Custodian, and a futures commission merchant, relating to
compliance with the rules of the Commodity Futures Trading Commission and/or any
contract market (or any similar organization or organizations) regarding account
deposits in connection with transactions by the Fund;
(n) For delivery to a broker-dealer registered under the 1934 Act or
in accordance with the provisions of any agreement
13
among the Fund, Custodian and such a broker-dealer as margin for a short sale of
Securities;
(o) For delivery (by a Foreign Sub-custodian or an agent of Custodian)
to the depository used by an issuer of American Depositary Receipts or
International Depositary Receipts (hereinafter collectively referred to as
"ADRs") for such Securities against a written receipt therefor adequately
describing such Securities and written evidence satisfactory to the Foreign Sub-
custodian or agent that the depository has acknowledged receipt of instructions
to issue with respect to such Securities ADRs in the name of the Custodian, or a
nominee of the Custodian, for delivery to the Custodian;
(p) To deliver ADRs to the issuer thereof against a written receipt
therefor adequately describing the ADR's delivered and written evidence
satisfactory to the Custodian that the issuer of the ADRs has acknowledged the
receipt of instructions to cause its depository to deliver the Securities
underlying such ADRs to a Foreign Sub-custodian or agent of Custodian; or
(q) For any other proper purpose, but only upon receipt, in addition
to Proper Instructions, of a copy of a resolution of the Board of Directors,
certified by an Officer, specifying the Securities to be delivered, setting
forth the purpose for which such delivery is to be made, declaring such purpose
to be a proper purpose of the Fund, and naming the person or persons to whom
delivery of such Securities is to be made.
3.8 ACTIONS NOT REQUIRING PROPER INSTRUCTIONS. Unless otherwise
-----------------------------------------
instructed by the Fund, Custodian shall with respect to all Securities held for
the Fund:
14
(a) Subject to Section 8.4 below, collect on a timely basis all income
and other payments to which the Fund is entitled either by law or pursuant to
custom in the securities business;
(b) Subject to Section 8.4 below, collect on a timely basis the amount
payable upon or with respect to all Securities and other assets which may mature
or be called, redeemed, retired or otherwise become payable;
(c) Endorse for collection, in the name of the Fund, checks, drafts
and other negotiable instruments;
(d) Surrender interim receipts or Securities in temporary form for
Securities in definitive form;
(e) Execute, as custodian, any necessary declarations or certificates
of ownership under the federal income tax laws or the laws or regulations of any
other taxing authority now or hereafter in effect, and prepare and submit
reports to the Internal Revenue Service ("IRS") and to the Fund at such time, in
such manner and containing such information as is prescribed by the IRS;
(f) Hold for the Fund all rights and similar securities issued with
respect to Securities of the Fund; and
(g) In general, attend to all non-discretionary details in connection
with the sale, exchange, substitution, purchase, transfer and other dealings
with Securities and assets of the Fund.
3.9 REGISTRATION AND TRANSFER OF SECURITIES. All Securities held for the
---------------------------------------
Fund that are issuable only in bearer form shall be held by Custodian in that
form, provided that any such Securities shall be held in a Book-Entry System if
eligible therefor. All other Securities held for the Fund may be registered in
the name of Custodian as agent, any sub-custodian appointed pursuant to Section
3.3 above, any Securities Depository, any Foreign Sub-custodian or
15
Foreign Securities Depository (in the case of Foreign Securities), or any
nominee or agent of any of them. The Fund shall furnish to Custodian
appropriate instruments to enable Custodian to hold or deliver in proper form
for transfer, or to register as in this Section 3.9 provided, any Securities
delivered to Custodian which are registered in the name of the Fund.
3.10 RECORDS. (a) Custodian shall maintain complete and accurate records
-------
with respect to Securities, cash or other property held for the Fund, including
(i) journals or other records of original entry containing an itemized daily
record in detail of all receipts and deliveries of Securities and all receipts
and disbursements of cash; (ii) ledgers (or other records) reflecting (A)
Securities in transfer, if any, (B) Securities in physical possession, (C)
monies and Securities borrowed and monies and Securities loaned (together with a
record of the collateral therefor and substitutions of such collateral), (D)
dividends and interest received, and (E) dividends receivable and interest
accrued; and (iii) cancelled checks and bank records related thereto. Custodian
shall keep such other books and records with respect to Securities, cash and
other property of the Fund which is held hereunder as the Fund may reasonably
request.
(b) All such books and records maintained by Custodian shall (i) be
maintained in a form acceptable to the Fund and in compliance with rules and
regulations of the Securities and Exchange Commission, (ii) be the property of
the Fund and at all times during the regular business hours of Custodian be made
available upon request for inspection by duly authorized officers, employees or
agents of the Fund and employees or agents of the Securities and Exchange
Commission, and (iii) if required to be maintained by Rule 31a-1 under the 1940
Act, be preserved for the periods prescribed in Rule 31a-2 under the 1940 Act.
16
3.11 REPORTS BY CUSTODIAN. Custodian shall furnish the Fund with a daily
--------------------
activity statement, including a summary of all transfers to or from the Custody
Account, on the day following such transfers. At least monthly and from time to
time, Custodian shall furnish the Fund with a detailed statement of the
Securities and moneys held for the Fund under this Agreement.
3.12 OTHER REPORTS BY CUSTODIAN. Custodian shall provide the Fund with
--------------------------
such reports as the Fund may reasonably request from time to time on the
internal accounting controls and procedures for safeguarding Securities which
are employed by Custodian or any sub-custodian appointed pursuant to Section 3.3
above.
3.13 PROXIES AND OTHER MATERIALS. Unless otherwise instructed by the
---------------------------
Fund, Custodian shall promptly deliver to the Fund (at the address set forth in
Article XV below) all notices of meetings, proxies and proxy materials which it
receives regarding Securities held in the Custody Account. Before delivering
them to the Fund, Custodian shall cause all proxies relating to such Securities
which are not registered in the name of the Fund, or a nominee thereof, to be
promptly executed by the registered holder of such Securities, without
indication of the manner in which such proxies are to be voted. Unless otherwise
instructed by the Fund, neither Custodian nor any of its agents shall exercise
any voting rights with respect to Securities held hereunder.
3.14 INFORMATION ON CORPORATE ACTIONS. Custodian shall promptly transmit
--------------------------------
to the Fund (at the address set forth in Article XV below) all written
information received by Custodian from issuers of Securities held in the Custody
Account. With respect to tender or exchange offers for such Securities,
Custodian shall promptly transmit to the Fund all written information received
by it from the issuers of the Securities whose tender or exchange is sought and
by the party (or its agents) making the tender or exchange offer. If the Fund
desires to take action with respect to
17
any tender offer, exchange offer or other similar transaction, the Fund shall
notify Custodian (a) in the case of Foreign Securities, such number of Business
Days prior to the date on which Custodian is to take such action (which number
of days is in the Custodian's sole discretion) as will allow Custodian to take
such action in the relevant local market in a timely fashion, and (b) in the
case of all other Securities, at least five Business Days prior to the date on
which Custodian is to take such action.
3.15 CO-OPERATION. Custodian shall cooperate with and supply necessary
------------
information to the entity or entities appointed by the Fund to keep the books of
account of the Fund and/or to compute the value of the assets of the Fund.
ARTICLE IV
DUTIES OF CUSTODIAN WITH
RESPECT TO PROPERTY OF
THE FUND HELD OUTSIDE THE UNITED STATES
---------------------------------------
4.1 APPOINTMENT OF FOREIGN SUB-CUSTODIANS. Custodian may appoint sub-
-------------------------------------
custodians pursuant to Section 3.3 hereof or Eligible Foreign Custodians in
accordance with Rule 17f-5 under the 1940 Act as Foreign Sub-custodians
hereunder for the Fund's Securities and other assets maintained outside the
United States. Upon receipt of Written Instructions from the Fund to do so, the
Custodian shall cease the employment of any Foreign Sub-custodian for
maintaining custody of the Fund's assets.
4.2 ASSETS TO BE HELD. The Custodian shall limit the Securities and
-----------------
other assets maintained in the custody of an Eligible Foreign Custodian to: (a)
Foreign Securities, and (b) cash and cash equivalents in such amounts as the
Fund may determine.
4.3 FOREIGN SECURITIES DEPOSITORIES. Custodian or any Foreign Sub-
-------------------------------
custodian employed by it may maintain assets of the
18
Fund in Foreign Securities Depositories in accordance with Rule 17f-5 under the
1940 Act.
4.4 AGREEMENTS WITH FOREIGN SUB-CUSTODIANS. Fund shall approve in
--------------------------------------
writing (a) the appointment of each Foreign Sub-custodian and the agreement
pursuant to which the Custodian employs such Foreign Sub-custodian and (b) for
the appointment of each Eligible Foreign Custodian as a Foreign Sub-custodian,
the country or countries in which such Foreign Sub-custodian is authorized to
hold Securities, cash and other property of the Fund.
4.5 APPROVED FOREIGN SUB-CUSTODIANS. (a) Those Foreign Sub-custodians
-------------------------------
and the countries where and the Foreign Securities Depositories through which
they or the Custodian may hold Securities, cash and other property of the Fund
which the Fund has approved to date are set forth on Exhibit D hereto. Exhibit
D shall be amended from time to time as Foreign Sub-custodians, countries and/or
Foreign Securities Depositories are changed, added or deleted. The Fund shall
be responsible for informing the Custodian sufficiently in advance of a proposed
investment which is to be held in a country not listed in Exhibit E in order to
allow the Fund to give the approval required by Section 4.4 hereof and for
Custodian to put the appropriate arrangements in place with a Foreign Sub-
custodian.
(b) If the Fund invests in a Security to be held pursuant to this
Article before the foregoing procedures have been completed, such Security may
be held by such agent as Custodian may select, and Custodian shall bear no
liability to Fund for the actions of such agent, except to the extent Custodian
shall have recovered from such agent for any damages caused to Fund by such
agent.
4.6 REPORTS BY CUSTODIAN. Custodian shall supply to the Fund from time
--------------------
to time, as mutually agreed upon, reports in respect
19
of the safekeeping of the Securities and other assets of the Fund held by
Foreign Sub-custodians, including, but not limited to, advices or notifications
of transfers of Securities to or from the accounts maintained by Foreign Sub-
custodians for the Custodian on behalf of the Fund.
4.7 TRANSACTIONS IN FOREIGN CUSTODY ACCOUNT. (a) Upon receipt of Proper
---------------------------------------
Instructions given in any of the cases specified in Section 3.7 above, Custodian
shall cause the Foreign Sub-custodians to transfer, exchange or deliver Foreign
Securities owned by the Fund, subject to all local laws, regulations, customs,
procedures and practices applicable in the relevant local market; and
(b) Upon receipt of Proper Instructions given in any of the cases
specified in Section 3.6 above, Custodian shall cause the Foreign Sub-custodians
to pay out monies of the Fund, subject to all local laws, regulations, customs,
procedures and practices applicable in the relevant local market.
4.8 LIABILITY OF FOREIGN SUB-CUSTODIANS. The agreement pursuant to which
-----------------------------------
the Custodian employs a Foreign Sub-custodian shall require such Foreign Sub-
custodian to exercise reasonable care in the performance of its duties and shall
hold such Foreign sub-custodian responsible for any direct loss or damage
arising out of any willful misfeasance, bad faith or negligence of such Foreign
Sub-custodian in the performance of its obligations under such agreement or out
of its reckless disregard of such obligations. At its election, the Fund shall
be subrogated to the rights of Custodian with respect to any claims against a
Foreign Sub-custodian as a consequence of any such loss or damage if and to the
extent that the Fund has not been made whole for any such loss or damage.
20
4.9 LIABILITY OF CUSTODIAN. Notwithstanding anything to the contrary in
----------------------
Section 8.1 below or elsewhere in this Agreement, Custodian shall have no
greater liability to the Fund for the actions or omissions of any Foreign Sub-
custodian than any such Foreign Sub-custodian has to Custodian, and Custodian
shall not be required to discharge any such liability which may be imposed on it
unless and until such Foreign Sub-custodian has effectively indemnified
Custodian against it or has otherwise discharged its liability to Custodian in
full. Custodian shall have no liability for any loss or damage resulting from
acts or omissions of any Foreign Sub-custodian arising out of or caused,
directly or indirectly, by circumstances beyond such Foreign Sub-custodian's
reasonable control, including, without limitation, sovereign risk, as described
in Section 8.7, or "force majeure", as covered in Article X.
4.10 MONITORING RESPONSIBILITIES. Upon the request of the Fund, Custodian
---------------------------
shall annually furnish to the Fund information concerning all Foreign Sub-
custodians hereunder which shall be similar in kind and scope to that furnished
to the Fund in connection with the initial approval by the Fund of the
agreements pursuant to which Custodian employs such Foreign Sub-custodians or as
otherwise required by Rule 17f-5 under the 1940 Act.
4.11 TAX RECLAIMS. Upon the written request of the Fund, Custodian shall
------------
exercise, on behalf of the Fund, tax reclaim rights of Fund which arise in
connection with Foreign Securities in the Custody Account.
ARTICLE V
PURCHASE AND SALE OF INVESTMENTS OF THE FUND
--------------------------------------------
5.1 PURCHASE OF SECURITIES. Promptly upon each purchase of Securities
----------------------
for the Fund, Written Instructions shall be delivered to Custodian, specifying
(a) the name of the issuer or writer of such
21
Securities, and the title or other description thereof, (b) the number of
shares, principal amount (and accrued interest, if any), or other units
purchased, (c) the date of purchase and settlement, (d) the purchase price per
unit, (e) the total amount payable upon such purchase, and (f) the name of the
person to whom such amount is payable. Custodian shall upon receipt of such
Securities purchased by the Fund (or, if the Securities are transferred by means
of a private placement transaction, upon the receipt of such Securities or
payment instructions to Custodian which detail specific Securities to be
acquired) pay out of the moneys held for the account of the Fund the total
amount specified in such Written Instructions to the person named therein.
Custodian shall not be under any obligation to pay out moneys to cover the cost
of a purchase of Securities or other assets for the Fund if there is
insufficient cash available in the Custody Account.
5.2 SALE OF SECURITIES. Promptly upon each sale of Securities by the
------------------
Fund, Written Instructions shall be delivered to Custodian, specifying (a) the
name of the issuer or writer of such Securities, and the title or other
description thereof, (b) the number of shares, principal amount (and accrued
interest, if any), or other units sold, (c) the date of sale and settlement, (d)
the sale price per unit, (e) the total amount payable upon such sale, and (f)
the person to whom such Securities are to be delivered. Upon receipt of the
total amount payable to the Fund as specified in such Written Instructions,
Custodian shall deliver such Securities to the person specified in such Written
Instructions. Subject to the foregoing, Custodian may accept payment in such
form as shall be satisfactory to it, and may deliver Securities and arrange for
payment in accordance with the customs prevailing among dealers in Securities.
5.3 DELIVERY OF SECURITIES SOLD. Notwithstanding Section 5.2 above or
---------------------------
any other provision of this Agreement and subject, in the case of Foreign
Securities, to all local laws, regulations,
22
customs, procedures and practices applicable in the relevant local market,
Custodian, when instructed to deliver Securities against payment, shall be
entitled, but only if in accordance with generally accepted market practice, to
deliver such Securities prior to actual receipt of final payment therefor and,
exclusively in the case of Securities in physical form, to deliver such
Securities prior to receipt of payment. In any such case, the Fund shall bear
the risk that final payment for such Securities may not be made or that such
Securities may be returned or otherwise held or disposed of by or through the
person to whom they were delivered, and Custodian shall have no liability for
any of the foregoing.
5.4 PAYMENT FOR SECURITIES SOLD, ETC. In its sole discretion and from
---------------------------------
time to time, Custodian may credit the Custody Account, prior to actual receipt
of final payment thereof, with (a) proceeds from the sale of Securities which it
has been instructed to deliver against payment, (b) proceeds from the redemption
of Securities or other assets of the Fund, and (c) income from cash, Securities
or other assets of the Fund. Any such credit shall be conditional upon actual
receipt by Custodian of final payment and may be reversed if final payment is
not actually received in full. Custodian may, in its sole discretion and from
time to time, permit the Fund to use funds so credited to the Custody Account in
anticipation of actual receipt of final payment. Any such funds shall be
repayable immediately upon demand made by Custodian at any time prior to the
actual receipt of all final payments in anticipation of which funds were
credited to the Custody Account.
5.5 FINAL PAYMENT. For purposes of this Agreement, "final payment" means
-------------
payment in funds which are (or have become) immediately available, under
applicable law are irreversible, and are not subject to any security interest,
xxxx, xxxx or other encumbrance.
23
ARTICLE VI
REDEMPTION OF FUND SHARES
-------------------------
6.1 TRANSFER OF FUNDS. From such funds as may be available for the
-----------------
purpose in the Custody Account, and upon receipt of Proper Instructions
specifying that the funds are required to redeem Shares on account of the Fund,
Custodian shall wire each amount specified in such Proper Instructions to or
through such bank as the Fund may designate therein with respect to such amount.
6.2 NO DUTY REGARDING PAYING BANKS. Custodian shall not be responsible
------------------------------
for the payment or distribution by any bank designated in Proper Instructions
given pursuant to Section 6.1 above of any amount paid by Custodian to such bank
in accordance with such Proper Instructions.
ARTICLE VII
SEGREGATED ACCOUNTS
-------------------
Upon receipt of Proper Instructions, Custodian shall establish and maintain
a segregated account or accounts for and on behalf of the Fund, into which
account or accounts may be transferred cash and/or Securities, including
Securities maintained in a Depository Account:
(a) in accordance with the provisions of any agreement among the Fund,
Custodian and a broker-dealer (or any futures commission merchant), relating to
compliance with the rules of The Options Clearing Corporation or 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 Fund,
24
(b) for purposes of segregating cash or Securities in connection with
securities options purchased or written by the Fund or in connection with
financial futures contracts (or options thereon) purchased or sold by the Fund,
(c) which constitute collateral for loans of Securities made by the
Fund,
(d) for purposes of compliance by the Fund with requirements under the
1940 Act for the maintenance of segregated accounts by registered investment
companies in connection with reverse repurchase agreements, when-issued, delayed
delivery and firm commitment transactions, and short sales of securities, and
(e) for other proper purposes, but only upon receipt of, in addition
to Proper Instructions, a copy of a resolution of the Board of Directors,
certified by an Officer, setting forth the purpose or purposes of such
segregated account and declaring such purposes to be proper purposes of the
Fund.
ARTICLE VIII
CONCERNING THE CUSTODIAN
------------------------
8.1 STANDARD OF CARE. Custodian shall be held to the exercise of
----------------
reasonable care in carrying out its obligations under this Agreement, and shall
be without liability to the Fund for any loss, damage, cost, expense (including
attorneys' fees and disbursements), liability or claim which does not arise from
willful misfeasance, bad faith or negligence on the part of Custodian or
reckless disregard by Custodian of its obligations under this Agreement.
Custodian shall be entitled to rely on and may act upon advice of counsel on all
matters, and shall be without liability for any action reasonably taken or
omitted pursuant to such advice. In no event shall Custodian be liable for
special or consequential damages or be liable in any manner whatsoever for any
25
action taken or omitted upon instructions from the Fund or any agent of the
Fund. Custodian shall not be under any obligation at any time to ascertain
whether the Fund is in compliance with the 1940 Act, the regulations thereunder,
the provisions of its charter documents or by-laws, or its investment
objectives, policies and limitations as in effect from time to time.
8.2 ACTUAL COLLECTION REQUIRED. Custodian shall not be liable for, or
--------------------------
considered to be the custodian of, any cash belonging to the Fund or any money
represented by a check, draft or other instrument for the payment of money,
until Custodian or its agents actually receive such cash or collect on such
instrument.
8.3 NO RESPONSIBILITY FOR TITLE, ETC. So long as and to the extent that
---------------------------------
it is in the exercise of reasonable care, Custodian shall not be responsible for
the title, validity or genuineness of any property or evidence of title thereto
received or delivered by it or its agents.
8.4 LIMITATION ON DUTY TO COLLECT. Custodian shall promptly notify the
-----------------------------
Fund whenever any money or property due and payable from or on account of any
Securities held hereunder for the Fund is not timely received by it. Custodian
shall not, however, be required to enforce collection, by legal means or
otherwise, of any such money or other property not paid when due, but shall
receive the proceeds of such collections as may be effected by it or its agents
in the ordinary course of Custodian's custody and safekeeping business or of the
custody and safekeeping business of such agents.
8.5 EXPRESS DUTIES ONLY. Custodian shall have no duties or obligations
-------------------
whatsoever except such duties and obligations as are specifically set forth in
this Agreement, and no covenant or obligation shall be implied in this Agreement
against Custodian. Custodian shall have no discretion whatsoever with respect to
the
26
management, disposition or investment of the Custody Account and is not a
fiduciary to the Fund.
8.6 COMPLIANCE WITH LAWS. Custodian undertakes to comply with all
--------------------
applicable requirements of the Securities Act of 1933, the Securities Exchange
Act of 1934, the 1940 Act and the Commodities Exchange Act and any laws, rules
and regulations of governmental authorities having jurisdiction with respect to
the duties to be performed by Custodian hereunder. Except as specifically set
forth herein, Custodian assumes no responsibility for such compliance by the
Fund.
8.7 NO LIABILITY FOR SOVEREIGN RISK. Custodian shall not be liable for
-------------------------------
any loss involving any Securities, currencies, deposits or other property of the
Fund, whether maintained by it, a Foreign Sub-custodian, a Foreign Securities
Depository, an agent of Custodian or a Foreign Sub-custodian or a bank, or for
any loss arising from a foreign currency transaction or contract, where the loss
results from a sovereign risk or where the entity maintaining such Securities,
currencies, deposits or other property of the Fund, whether Custodian, a Foreign
Sub-custodian, a Foreign Securities Depository, an agent of Custodian or a
Foreign Sub-custodian or a bank, has exercised reasonable care maintaining such
property or in connection with the transaction involving such property. For
purposes of this Agreement, "sovereign risk" shall mean nationalization,
expropriation, devaluation, revaluation, confiscation, seizure, cancellation,
destruction or similar action by any governmental authority, de facto or de
jure; or enactment, promulgation, imposition or enforcement by any such
governmental authority of currency restrictions, exchange controls, taxes,
levies or other charges affecting the Fund's property; or acts of war,
terrorism, insurrection or revolution; or any other act or event beyond the
control of the Foreign Sub-custodian, the Foreign Securities Depository or the
agent of any of them.
27
ARTICLE IX
INDEMNIFICATION
---------------
9.1 INDEMNIFICATION. The Fund shall indemnify and hold harmless
---------------
Custodian, any sub-custodian and any nominee of Custodian or any sub-custodian,
from and against any loss, damages, cost, expense (including attorneys' fees and
disbursements), liability (including, without limitation, liability arising
under the Securities Act of 1933, the 1934 Act, the 1940 Act, and any federal,
state or foreign securities and/or banking laws) or claim arising directly or
indirectly (a) from the fact that Securities are registered in the name of any
such nominee, or (b) from any action or inaction by Custodian or such sub-
custodian or other agent (i) at the request or direction of or in reliance on
the advice of the Fund or any of its agents, or (ii) upon Proper Instructions,
or (c) generally, from the performance of its obligations under this Agreement,
provided that Custodian, any sub-custodian or any nominee of either of them
shall not be indemnified and held harmless from and against any such loss,
damage, cost, expense, liability or claim arising from Custodian's willful
misfeasance, bad faith, negligence or reckless disregard of its obligations
under this Agreement or, in the case of any sub-custodian or its nominee, from
such sub-custodian's willful misfeasance, bad faith, negligence or reckless
disregard of its obligations under the Agreement under which it is acting.
9.2 INDEMNITY TO BE PROVIDED. If the Fund requests Custodian to take any
------------------------
action with respect to Securities, which may, in the opinion of Custodian,
result in Custodian or its nominee becoming liable for the payment of money or
incurring liability of some other form, Custodian shall not be required to take
such action until the Fund shall have provided indemnity therefor to Custodian
in an amount and form satisfactory to Custodian.
28
9.3 SECURITY. As security for the payment of any present or future
--------
obligation or liability of any kind which the Fund may have to Custodian with
respect to or in connection with the Custody Account or this Agreement, the Fund
hereby pledges to Custodian all cash, Securities and other property of every
kind which is in the Custody Account or otherwise held for the Fund pursuant to
this Agreement, and hereby grants to Custodian a lien, right of set-off and
continuing security interest in such cash, Securities and other property.
ARTICLE X
FORCE MAJEURE
-------------
Neither Custodian nor the Fund shall be liable for any failure or delay in
performance of its obligations under this Agreement arising out of or caused,
directly or indirectly, by circumstances beyond its reasonable control,
including, without limitation, acts of God; earthquakes; fires; floods; wars;
civil or military disturbances; sabotage; strikes; epidemics; riots; power
failures; computer failure and any such circumstances beyond its reasonable
control as may cause interruption, loss or malfunction of utility,
transportation, computer (hardware or software) or telephone communication
service; accidents; labor disputes; acts of civil or military authority;
governmental actions; or inability to obtain labor, material, equipment or
transportation.
ARTICLE XI
REPRESENTATIONS AND WARRANTIES
------------------------------
Each of the Fund and Custodian represents and warrants for itself that (a)
it has all necessary power and authority to perform its obligations hereunder,
(b) the execution and delivery by it of this Agreement, and the performance by
it of its obligations under this Agreement, have been duly authorized by all
necessary action and will not violate any law, regulation, charter, by-law, or
other
29
instrument, restriction or provision applicable to it or by which it is bound,
and (c) this Agreement constitutes a legal, valid and binding obligation of it,
enforceable against it in accordance with its terms.
ARTICLE XII
COMPENSATION OF CUSTODIAN
-------------------------
The Fund shall pay Custodian such fees and charges as are set forth in the
fee schedule annexed hereto as Exhibit C, as such fee schedule may from time to
time be revised by Custodian upon 14 days' prior written notice to the Fund.
Any annual fee or other charges payable by the Fund shall be paid monthly by
automatic deduction from the Custody Account. Expenses incurred by Custodian in
the performance of its services hereunder, and all other proper charges and
disbursements of the Custody Account, shall be charged to the Custody Account by
Custodian and paid therefrom.
ARTICLE XIII
TAXES
-----
Any and all taxes, including any interest and penalties with respect
thereto, which may be levied or assessed under present or future laws or in
respect of the Custody Account or any income thereof shall be charged to the
Custody Account by Custodian and paid therefrom.
ARTICLE XIV
AUTHORIZED PERSONS
------------------
14.1 AUTHORIZED PERSONS. Custodian may rely upon and act in accordance
------------------
with any notice, confirmation, instruction or other communication received by it
from the Fund which is reasonably believed by Custodian to have been given or
signed on behalf of the Fund by one of the Authorized Persons designated by the
Fund in Exhibit A hereto, as it may from time to time be revised. The Fund
30
may revise Exhibit A hereto at any time by notice in writing to Custodian given
in accordance with Article XV below, but no revision of Exhibit A hereto shall
be effective until Custodian actually receives such notice.
14.2 INVESTMENT ADVISERS. Custodian may also act in accordance with any
-------------------
Written or Oral Instructions which are reasonably believed by Custodian to have
been given or signed by one of the persons designated from time to time by any
of the investment advisers of the Fund specified in Exhibit B hereto (if any) as
it may from time to time be revised. The Fund may revise Exhibit B hereto at
any time by notice in writing to Custodian given in accordance with Article XV
below, and each investment adviser specified in Exhibit B hereto (if any) may at
any time by like notice designate an Authorized Person or remove an Authorized
Person previously designated by it, but no revision of Exhibit B hereto (if any)
and no designation or removal by such investment adviser shall be effective
until Custodian actually receives such notice.
14.3 ORAL INSTRUCTIONS. Custodian may rely upon and act in accordance
-----------------
with Oral Instructions (as defined in Section 1.11 above). If Written
Instructions confirming Oral Instructions are not received by Custodian prior to
a transaction, it shall in no way affect the validity of the transaction
authorized by such Oral Instructions or the authorization of the Fund to effect
such transaction. Custodian shall incur no liability to the Fund in acting upon
Oral Instructions (as defined in Section 1.11 above). To the extent such Oral
Instructions vary from any confirming Written Instructions, Custodian shall
advise the Fund of such variance but unless confirming Written Instructions are
timely received, such Oral Instructions will govern. Either Custodian or Fund
may electronically record any instructions given by telephone and any other
telephone discussions with respect to the account of the Fund.
31
ARTICLE XV
NOTICES
-------
Unless otherwise specified herein, all demands, notices, instructions, and
other communications to be given hereunder shall be sent, delivered or given to
the recipient at the address set forth after its name hereinbelow:
IF TO THE FUND:
The Insiders Select Portfolio - The Bear Xxxxxxx Funds
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx
----------------
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
IF TO CUSTODIAN:
Custodial Trust Company
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000-0000
Attention: Vice President - Trust Operations
---------------------------------
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or at such other address as either party shall have provided to the other by
notice given in accordance with this Article XV. Writing shall include
transmissions by or through teletype, facsimile, central processing unit
connection, on-line terminal and magnetic tape.
ARTICLE XVI
TERMINATION
-----------
Either party hereto may terminate this Agreement by giving to the other
party a notice in writing specifying the date of such termination, which shall
be not less than sixty (60) days after the date of the giving of such notice.
Upon the date set forth in such notice this Agreement shall terminate, and
Custodian shall, upon receipt of a notice of acceptance by the successor
custodian, on
32
that date (a) deliver directly to the successor custodian or its agents all
Securities (other than Securities held in a Book-Entry System, Securities
Depository or Foreign Securities Depository) and cash then owned by the Fund and
held by Custodian as custodian, and (b) transfer any Securities held in a Book-
Entry System, Securities Depository or Foreign Securities Depository to an
account of or for the benefit of the Fund, provided that the Fund shall have
paid to Custodian all fees, expenses and other amounts to the payment or
reimbursement of which it shall then be entitled.
ARTICLE XVII
MISCELLANEOUS
-------------
17.1 BUSINESS DAYS. Nothing contained in this Agreement shall require
-------------
Custodian to perform any function or duties on a day other than a Business Day.
17.2 GOVERNING LAW. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the State of New York, without regard to the
conflict of law principles thereof.
17.3 REFERENCES TO CUSTODIAN. The Fund shall not circulate any printed
-----------------------
matter which contains any reference to Custodian without the prior written
approval of Custodian, excepting printed matter contained in the prospectus or
statement of additional information for the Fund and such other printed matter
as merely identifies Custodian as custodian for the Fund. The Fund shall submit
printed matter requiring approval to Custodian in draft form, allowing
sufficient time for review by Custodian and its counsel prior to any deadline
for printing.
17.4 NO WAIVER. No failure by either party hereto to exercise, and no
---------
delay by such party in exercising, any right hereunder shall operate as a waiver
thereof. The exercise by either party hereto of any right hereunder shall not
preclude the exercise
33
of any other right, and the remedies provided herein are cumulative and not
exclusive of any remedies provided at law or in equity.
17.5 AMENDMENTS. This Agreement cannot be changed orally and no amendment
----------
to this Agreement shall be effective unless evidenced by an instrument in
writing executed by the parties hereto.
17.6 COUNTERPARTS. This Agreement may be executed in one or more
------------
counterparts, and by the parties hereto on separate counterparts, each of which
shall be deemed an original but all of which together shall constitute but one
and the same instrument.
17.7 SEVERABILITY. If any provision of this Agreement shall be invalid,
------------
illegal or unenforceable in any respect under any applicable law, the validity,
legality and enforceability of the remaining provisions shall not be affected or
impaired thereby.
17.8 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
----------------------
shall inure to the benefit of the parties hereto and their respective successors
and assigns; provided, however, that this Agreement shall not be assignable by
-------- -------
either party hereto without the written consent of the other party. Any
purported assignment in violation of this Section 17.8 shall be void.
17.9 HEADINGS. The headings of sections in this Agreement are for
--------
convenience of reference only and shall not affect the meaning or construction
of any provision of this Agreement.
34
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed in its name and on its behalf by its representative thereunto duly
authorized, all as of the day and year first above written.
THE INSIDERS SELECT PORTFOLIO - CUSTODIAL TRUST COMPANY
THE BEAR XXXXXXX FUNDS
By /s/ Xxxxx X. Xxxxxxx By /s/ Xxxxxx X. Xxxxxx
-------------------- --------------------
Authorized Officer Authorized Officer
35
EXHIBIT A
---------
AUTHORIZED PERSONS WITH ACCESS TO INVESTMENTS/*/
Set forth below are the names of the persons, whose specimen signatures are
on file with the Custodian, authorized by the Board of Trustees of The Bear
Stearns Funds to have access to The Insiders Select Portfolio's (the "Fund")
investments.
Name
----
Neil L. Rudolph
Praveen Gottipalli
Frank J. Maresca
Vincent L. Pereira
Eileen M. Coyle
_____________________
/*/Nothing herein shall prohibit any person designated as an Authorized Person
from giving Oral Instructions or Written Instructions to the Custodian, so long
as it does not result in delivery of or access to securities and similar
investments of the Fund by such person.
EXHIBIT B
---------
INVESTMENT ADVISERS
Bear Stearns Funds Management Inc.
Symphony Asset Management
EXHIBIT C
---------
CUSTODY FEES AND TRANSACTION CHARGES
DOMESTIC FEES. The Fund shall pay Custodian the following fees and charges
-------------
for assets in the United States ("Domestic Assets") and transactions in the
United States, all such fees and charges to be payable monthly:
(1) an annual fee of the greater of 0.015% (one and one-half basis points)
per annum of the value of the Domestic Assets in the Custody Account or $5,000,
such fee to be payable monthly based upon the total market value of such
Domestic Assets as determined on the last Business Day of the month for which
such fee is charged;
(2) a transaction charge of $18 for each buy, sell or redemption
transaction executed in the Custody Account with respect to such Domestic Assets
as are book-entry Securities (but not for any such buy or sell in a repurchase
transaction representing a cash sweep investment for the Fund's account or the
investment by the Fund of collateral for a loan of Securities);
(3) a transaction charge of $50 for each receipt or delivery into or from
the Custody Account of such Domestic Assets as are Securities in physical form;
(4) a transaction charge for each repurchase transaction in the Custody
Account which represents a cash sweep investment for the Fund's account,
computed at a rate of 0.10% (ten basis points) per annum on the amount of the
purchase price paid or received by the Fund in such repurchase transaction;
(5) a charge of $10 for each funds transfer; and
(6) a service charge for each holding of Domestic Assets consisting of
Securities or other property sold by way of private placement or in such other
manner as to require services by Custodian which in the reasonable judgment of
Custodian are materially in excess of those ordinarily required for the holding
of publicly traded Securities in the United States.
INTERNATIONAL FEES. The Fund shall pay Custodian fees for assets outside
------------------
the United States ("Foreign Assets") and transaction charges and other charges
(including, without limitation, charges for funds transfers, tax reclaims, and
foreign exchange services) outside the United States, all such fees and charges
to be payable monthly, according to a schedule of such fees and charges specific
to each country in which Foreign Assets are held, such schedule to be provided
from time to time upon request.
Fees shall be based upon the total market value of the applicable Foreign
Assets as determined on the last Business Day of the month for which such fees
are charged.
EXHIBIT D
---------
APPROVED FOREIGN SUB-CUSTODIANS
Foreign Sub-custodian Country(ies) Securities Depositories
--------------------- ------------ -----------------------
(See Attached)
CITIBANK, N.A.
SEC RULE 17F-5 INFORMATION PACKAGE
AUGUST 1994
SECTION 2: OVERVIEW OF FOREIGN SUBCUSTODIANS & DEPOSITORIES
SECTION 2:
OVERVIEW OF CITIBANK'S
FOREIGN SUBCUSTODIAN AND
DEPOSITORY ARRANGEMENTS
2-01.0 SUBCUSTODIAN NETWORK
Colombia: Cititrust Colombia S.A.
Carrera 9A, No. 99-02,
Bogota, Colombia
Argentina: Citibank, N.A. (Argentina) Denmark: Den Danske Bank
Bartolome Mitre 502/30 2-12 Holmens Kanal
1036 Buenos Aires, Argentina DK-1092 Copenhagen K.
Denmark
Australia: Citicorp Nominees Pty. Ltd. Finland: Kansallis-Osake-Pankki
101 Collins Street Aleksanterinkatu 42
Melbourne, VIC 3000 Australia 00100 Helsinki, Finland
Austria: Citibank (Austria) A.G. France: Citibank S.A. (France)
Postfach 90 Cedex 36
Lothringerstrasse 7 92073 Paris la Defense, France
A-1015 Vienna, Austria
Banque Paribas
Belgium: Generale Bank 3 Rue D'Antim
Montagne du Parc 3 75002 Paris, France
1000 Brussels, Belgium
Brazil: Citibank, N.A. (Brazil) Germany: Citibank Aktiengesellschaft
Avenida Paulista 1111 Neue Mainzer Str. 75,
Sao Paulo, Brazil 60311, Frankfurt/Main,
Germany
Canada: Citibank Canada Greece: Citibank, N.A. (Greece)
123 Front Street West Athens Branch
Toronto, Ontario Othonos 8
M5J2M3, Canada Athens 10557, Greece
Chile: Citibank, N.A. (Chile) Hong Kong: Citibank, N.A. (Hong Kong)
Ahumada 40 Citicorp Tower
Santiago, Chile Citicorp Plaza
3 Garden Road
Central, Hong Kong
China: Citibank, N.A. (Hong Kong) Hungary: Citibank Budapest Rt.
c/o Citibank, N.A., 1052 Budapest V19-21.
Hong Kong, Citicorp Tower, Vaci Utca
Citicorp Plaza, 3 Garden Road, Hungary
Central, Hong Kong
India: Citibank, N.A. (India) New Zealand: Citibank Nominees (New
Sakhar Bhavan Zealand) Ltd.
230 Backbay Reclamation 23 Customs Street East
Nariman Point Auckland 1, New Zealand
Bombay 400 021
Indonesia: Citibank, N.A. (Jakarta)
Jalan Jend. Sudirman No. 1 Norway: Christiania Bank
Jakarta 12910, Indonesia P.O. Box 1166 Sentrum
0107 Oslo 1, Norway
Ireland: Citibank, N.A. (Ireland)
IFSC House, Custom House Pakistan: Citibank, N.A. (Pakistan)
Quay, Dublin 2 P.O. Box 4889
Ireland 11 Chundrigar Road
Karachi 74200
Italy: Citibank, N.A. (Italy) Pakistan
Foro Buonaparte N. 16
Casella Postale 10932
20121 Milan, Italy
Japan: Citibank, N.A. (Japan) Peru: Citibank, N.A. (Lima)
Citicorp Center, Av. Camino Real 456,
2-314 Higashi Shinagawa, Torre Real 5t 0 Piso,
Shinagawa - ku, Lima 27
Tokyo, Japan Peru
Jordan: Citibank, N.A. (Jordan) Philippines: Citibank, N.A. (Philippines)
3rd Circle Citibank Center
Jordan Insurance Building 8741 Paseo de Roxas
Prince Mohammad Street Makati Metro
Amman, Jordan Manila, Philippines
Korea: Citibank, N.A. (Korea) Poland: Citibank Poland S.A.
89-29 Shinmun-Ro, Sentorska 12,
Chongro-ku 00-082 Warsaw,
Seoul, Korea Poland
Luxembourg: Cedel S.A. Portugal: Citibank Portugal S.A.
67 Boulevard Rua Barat, Salgueiro 30,
Grande-Duchesse Charlotte 4th floor, 1200 Lisbon,
L-1010, Luxembourg Portugal
Malaysia: Citibank Berhad Puerto Rico: Citibank, N.A.
28-30 Medan Pasar 252 Ponce De Leon Avenue
50050 Kuala Lumpur, Malaysia San Juan, Puerto Rico 00936
Mexico: Citibank, N.A. (Mexico) Singapore: Citibank, N.A. (Singapore)
Paseo de la Reforma 390 UIC Building #01-00
Mexico City DF, 06695 Mexico 5 Shenton Way
Singapore 0106
Netherlands: Citibank, N.A. (Netherlands)
"Europlaza", South Africa: First National Bank
Hoogoorddreef 54 B, Mezzanine floor,
1101 BE Amsterdam z.o., 3 First Place,
The Netherlands Post Box 7713
Johannesburg, 2000
South Africa
Spain: Citibank, N.A. (Spain)
Jose Ortega Y Gasset 29
28006 Madrid, Spain
Sri Lanka: Citibank, N.A. (Sri Lanka)
67 Dharmapala Mawatha
P.O. Box 888
Colombo 7, Sri Lanka
Sweden: Skandinaviska Enskilda Banken
Sergels Torg 2
Stockholm, Sweden
Switzerland: Citibank (Switzerland)
Bahnhofstrass 63,
Post Office Box 24
8021 Zurich, Switzerland
Taiwan: Citibank, N.A. (Taiwan)
Taipei Branch
No. 52 Ming Sheng East Road
Sec. 4
Taipei, Taiwan
Thailand: Citibank, N.A. (Thailand)
127 South Sathom Road
Bangkok 10120, Thailand
Turkey: Citibank, N.A. (Turkey)
Buyukedere Caddesi,
No. 100, Eseutepe 80280
Istanbul, Turkey
United Kingdom: Citibank, N.A.
25 Molesworth St,
Lewisham, London SE 13 7EX
United Kingdom
The First National Bank of
Chicago
27 Leadenhall Street
London EC3A 1AA, England
Uruguay: Citibank, N.A. (Uruguay)
Cerrito 455
P.O. Box 690
Montevideo
Uruguay
Venezuela: Citibank, N.A. (Caracas)
Carmelitas a Altagracia
Edificio Citibank
Caracas 1010, Venezuela
2-01.1 STATUS AND SHAREHOLDERS' EQUITY
COUNTRY SUBCUSTODIAN STATUS SHAREHOLDERS'
EQUITY
Argentina Citibank, N.A. Branch NA
Australia Citicorp Nominees Pty. Ltd. Subsidiary SEC Exemption
Austria Citibank (Austria) A.G. Subsidiary SEC Exemption
Belgium Generale Bank Correspondent US$ 2,260 MM
Brazil Citibank, N.A. Branch NA
Canada Citibank Canada Subsidiary US$ 299.9 MM
Chile Citibank, N.A. Branch NA
China Citibank, N.A. Branch NA
Colombia Cititrust Colombia S.A. Subsidiary SEC Exemption
Sociedad Fiduciary
Denmark Den Danske Bank Correspondent US$ 2,975 MM
Finland Kansallis-Osake-Pankki Correspondent US$ 1,325 MM
France Citibank S.A. Subsidiary SEC Exemption
France Banque Paribas Correspondent US$ 2,998 MM
Germany Citibank Aktiengesellschaft Subsidiary US$ 298 MM
Greece Citibank, N.A. Branch NA
Hong Kong Citibank, N.A. Branch NA
Hungary Citibank Budapest Rt. Subsidiary SEC Exemption
India Citibank, N.A. Branch NA
Indonesia Citibank, N.A. Branch NA
Ireland Citibank, N.A. Branch NA
Italy Citibank, N.A. Branch NA
Japan Citibank, N.A. Branch NA
Jordan Citibank, N.A. Branch NA
Korea Citibank, N.A. Branch NA
Luxembourg Cedel S.A. Depository NA
Malaysia Citibank Berhad Subsidiary US$ 145MM
Mexico Citibank, N.A. Branch NA
Netherlands Citibank, N.A. Branch NA
New Zealand Citibank Nominees (NZ) Ltd. Subsidiary SEC Exemption
Norway Christiania Bank Correspondent US$ 512MM
Pakistan Citibank, N.A. Branch NA
Peru Citibank, N.A. Branch NA
Philippines Citibank, N.A. Branch NA
Poland Citibank Poland S.A. Subsidiary SEC Exemption
Portugal Citibank Portugal S.A. Subsidiary SEC Exemption
Singapore Citibank, N.A. Branch NA
South Africa First National Bank of Southern Africa Ltd. Correspondent US$ 620MM
Spain Citibank, N.A. Branch NA
Sri Lanka Citibank, N.A. Branch NA
Sweden Skandinaviska Enskilda Banken Correspondent US$ 669MM
Switzerland Citibank (Switzerland) Affiliate US$ 198MM
Taiwan Citibank, N.A. Branch NA
Thailand Citibank, N.A. Branch NA
Turkey Citibank, N.A. Branch NA
U.K. Citibank, N.A. Branch NA
Uruguay Citibank, N.A. Branch NA
Venezuela Citibank, N.A. Branch NA
2-02.0 DEPOSITORIES
Argentina: Caja de Valores ("CDV") Finland: Central Share Registry
The Helsinki Money
Market Center
Australia: The Reserve Bank Information France: Societe Interprofessionnelle
and Transfer System ("RITS") pour la Compensation de
Valeurs Mobilieres
Austraclear ("SICOVAM")
Austria: Wertpapiersammelbank Banque de France
bei der Oesterreichische
Kontrollbank ("OEKB/WSB") Germany: Deutscher Kassenverein A.G.
("DKV")
Belgium: Caisse Interprofessionelle
de Depots et de Virements Greece: Central Securities Depository,
de Titres S.A. ("CIK") S.A. ("CSD")
Banque Nationale Hong Kong: Central Clearing and
de Belgique ("BNB") Settlement System
("CCASS")
Brazil: BOVESPA's Registered
Shares Fungible Custody Hungary: The Central Depository and
("BOVESPA") Clearing House ("CDCH")
Canada: The Canadian Depository for Ireland: Gilt Settlement Office ("GSO")
Securities Limited ("CDS")
Italy: Monte Titoli Instituto per la
China: The Shanghai Securities Custodia e l'Amministrazione
Central Clearing and Accentrata di Valori Mibiliar
Registration Corporation ("Monte Titoli")
("SSCCRC")
The Bank of Italy
The Shenzhen Securities
Registrars Co. Ltd. - registrar Japan: Japan Securities Depository
for three banks forming a Center ("JASDEC")
decentralized depository
structure The Bank of Japan ("BOJ")
Denmark: Vaerdipapircentralen ("VP") Korea: The Korea Securities
Depository ("KSD")
Luxembourg: CEDEL, S.A.
Malaysia: Malaysian Central
Depository Sdn. Bhd.
("MCD")
Mexico: Instituto para el Deposito de
Valores ("S.D. Indeval")
Netherlands: Nederlands Centraal Instituut
voor Giraal Effectenverkeer
B.V. ("Necigef")
New Zealand: Austraclear
Norway: The Norwegian Registry of
Securities -
Verdipapirsentralen ("VPS")
Peru: Caja de Valores ("CAVAL")
Poland: The National Depository of Securities
(Krajowy Depozyt Papierow Wartosciowych)
Portugal: Central de Registo e Valores Mobiliarios
Singapore: Central Depository (PTE) Ltd.
South Africa: The Central Depository (Pty) Ltd.
Spain: Servico de Compensacion y
Liquidacion de Valores ("SCLV")
Sri Lanka: Central Depository System (Pvt) Limited
Sweden: Vardepapperscentralen VPC AB ("VPC")
Switzerland: Schwerzerische Effekten-Giro AG ("SEGA")
Taiwan: Taiwan Securities Central
Depository Co., Ltd. ("TSCD")
Thailand: Share Depository Center ("SDC")
Turkey: Istanbul Stock Exchange Settlement
and Custody Company Inc.
United
Kingdom: Central Gilts Office ("CGO")
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
GLOBAL CUSTODY NETWORK
START DEPOSITORY IN ADDITION TO THE CENTRAL BANK,
COUNTRY DATE SUBCUSTODIAN IF APPLICABLE.
Argentina 1991 Morgan Guaranty Trust Co. of Caja de Valores
N.Y. - Buenos Aires
Office
Australia 1982 ANZ Banking Group Austraclear
Austria 1988 Creditanstalt-Bankverein OeKB-WSB (Wertpapiersammelbank bei der
Oesterreichischen Kontrollbank AG)
Belgium 1977 Morgan Guaranty Trust Co. of CIK (Caisse Interprofessionnelle de
N.Y. - Brussels Office Depots et de Virements de Titres)
Euroclear Clearance System Limited
Brazil 1991 Morgan Guaranty Trust Co. of BOVESPA (Bolsa de Valores de Sao Paolo;
N.Y. - Sao Paulo Office equities)
BVRJ (Bolsa de Valores de Rio de Janeiro,
equities)
CETIP (Central de Custodia e Liquidacao
Financeira de Titulos; corporate bonds)
SELEC (Sistema Especial de Liquidacao e
Custodia; gov't securities)
Canada 1978 Canadian Imperial Bank of CDS (Canadian Depository for Securities)
Commerce
Chile 1993 Citibank, N.A.
People's Republic 1992 Hongkong and Shanghai Banking
of China- Corporation
Shanghai and
Shenzhen
Czech Republic 1994 Ceskoslovenska Obchodni Banka,
A.S.
Denmark 1985 Den Danske Bank VP (Vaerdipapircentralen; Danish
Securities Centre)
Finland 1985 Union Bank of Finland
France 1977 Morgan Guaranty Trust Co. of SICOVAM (Societe Interprofessionnelle Pour
N.Y. - Paris Office La Compensation des Valeurs Mobilieres)
Germany 1977 Morgan Guaranty Trust Co. of DKV (Deutscher Kassenverein)
N.Y. - Frankfurt Office
Greece 1989 National Bank of Greece S.A.
Hong Kong 1978 Hongkong and Shanghai Banking CCASS (Central Clearing and Settlement
Corporation System)
Hungary 1993 Citibank N.A.
India 1993 Hongkong and Shanghai Banking
Corporation
Indonesia 1990 Hongkong and Shanghai Banking
Corporation
Ireland 1988 Allied Irish Banks PLC
Israel 1994 Bank Leumi LE TASE (Tel Aviv Stock Exchange)
Clearing House Ltd.
Italy 1977 Morgan Guaranty Trust Co. of N.Y. Monte Titoli S.p.A.
Milan Office
Japan 1977 The Fuji Bank, Limited JASDEC (Japan Securities Depository Center)
JSA (Japan Securities Agent)
Jordan 1994 Citibank, N.A.
Korea 1991 Bank of Seoul KSSC (Korea Securities Settlement
Corporation)
Luxembourg 1992 Banque Internationale A CEDEL (Centrale de Livraison des Valeurs
Luxembourg, S.A. Mobilieres)
Malaysia 1987 Hongkong and Shanghai Banking SCANS (Securities Clearing Automated
Corporation Network Services)
Mexico 1990 Citibank, N.A. Indeval
Morocco 1994 Banque Commerciale du Maroc
Netherlands 1978 Bank Labouchere nv NECIGEF (Nederlands Centraal Instituut Voor
Giraal Effectenverkeer BV)
New Zealand 1982 ANZ Banking Group Ltd.
Norway 1978 Den Norske Bank VPS (Verdipapirsentralen; Norwegian
Registry of Securities)
Pakistan 1994 Citibank, N.A.
Peru 1994 Citibank, N.A. CAVAL (Caja de Valores)
Philippines 1990 Hongkong and Shanghai Banking
Corporation
Poland 1993 Bank Handlowy
Portugal 1988 Banco Espirito Santo E
Comercial de Lisboa
Singapore 1988 Development Bank of Singapore (CDP) Central Depository Pte
South Africa 1993 First National Bank of Southern
Africa
Spain 1977 Morgan Guaranty Trust Co. of
N.Y. - Madrid Office
Sri Lanka 1992 Hongkong and Shanghai Banking
Corporation
Sweden 1985 Skandinaviska Enskilda Banken VPC (Vaerdepappercentralen; Securities
Register Centre)
Switzerland 1977 Bank Leu SEGA (Schweizerische Effekten - Giro AG)
Taiwan 1992 Hongkong and Shanghai Banking
Corporation
Thailand 1988 Hongkong and Shanghai Banking
Corporation
Turkey 1990 Citibank, N.A. Istanbul Stock Exchange Settlement and
Ottoman Bank Custody Company, Inc. (I.M.K.B. Takas ve
Saklama A.S.)
United Kingdom 1977 Morgan Guaranty Trust Co. of N.Y. TALISMAN (Transfer, Accounting and
London Office Lodgement for Investors, Stock Management
for Jobbers)
CGO (Central Gilts Office)
CMS (Central Money Market Office)
United States of 1977 Morgan Guaranty Trust Co. of The Federal Reserve Bank of New York
America N.Y. The Depository Trust Co.
The Participants Trust Co.
Venezuela 1991 Citibank, N.A.
