EXHIBIT 24(b)(8)
CUSTODY AGREEMENT
This Custody Agreement is dated May 1, 1996 between XXXXXX XXXXXXX TRUST
COMPANY, a New York State chartered trust company (the "Custodian"), and
XXXXXXXX XXXXXXXXX GLOBAL FUND SERIES, INC., a Maryland corporation (the
"Client").
1. Appointment and Acceptance; Accounts. (a) The Client hereby appoints the
Custodian as a custodian of Property (as defined below) owned or under the
control of the Client that are delivered to the Custodian, or any Subcustodian
as appointed below, from time to time to be held in custody for the benefit of
the Client.
(b) The Client shall deliver to the Custodian each document and other item
listed in Appendix 1. In addition, the Client shall deliver to the Custodian any
additional documents or items as the Custodian may reasonably request for the
performance of its duties under this Agreement.
(c) The Client instructs the Custodian to establish on the books and
records of the Custodian the accounts listed in Appendix 2 (the "Accounts") in
the name of the Client. Upon receipt of Authorized Instructions (as defined
below) and appropriate documentation, the Custodian shall open additional
Accounts for the Client. Upon the Custodian's confirmation to the Client of the
opening of such additional Accounts, or of the closing of Accounts, Appendix 2
shall be deemed automatically amended or supplemented accordingly. The Custodian
shall record in the Accounts and shall have general responsibility for the
safekeeping of all securities ("Securities"), cash, cash equivalents and other
property (all such Securities, cash, cash equivalents and other property being
collectively the "Property") of the Client that are delivered to the Custodian
for custody.
(d) The procedures the Custodian and the Client will use in performing
activities in connection with this Agreement are set forth in a client services
guide provided to the Client by the Custodian, as such guide may be amended from
time to time by the Custodian by written notice to the Client (the "Client
Services Guide").
2. Subcustodians. The Property may be held in custody and deposit accounts
that have been established by the Custodian with one or more (i) domestic banks
qualified under the Investment Company Act of 1940, as amended (the "Act") to
act as custodian or (ii) foreign banks or other institutions that are "Eligible
Foreign Custodians" (as defined in Rule 17f-5 of the Act) as listed on Exhibit A
(the "Subcustodians"), as such Exhibit may be amended from time to time by
written notice from the Custodian to the Client, or (iii) through the facilities
of one or more securities depositories or clearing agencies permitted by Rule
17f-4 of the Act; provided however, that the Custodian shall provide written
notice of any proposed amendment to Exhibit A at least ninety (90) days prior to
the proposed effective date of such amendment to Exhibit A. Unless notified in
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writing to the contrary by the Client during the ninety (90) day notice period,
the Custodian shall assume that the Client has obtained all necessary approval
of any new Subcustodian and the proposed amendment shall become effective as of
the proposed effective date. The Custodian shall hold Property through a
Subcustodian, securities depository or clearing agency only if (a) such
Subcustodian and any securities depository or clearing agency in which such
Subcustodian or the Custodian holds Property, or any of their creditors, may not
assert any right, charge, security interest, lien, encumbrance or other claim of
any kind to such Property except a claim of payment for its safe custody or
administration and (b) beneficial ownership of such Property may be freely
transferred without the payment of money or value other than for safe custody or
administration. Any Subcustodian may hold Property in a securities depository
and may utilize a clearing agency.
3. Records. With respect to Property held by a Subcustodian:
(a) The Custodian may hold Property for all of its customers with a
Subcustodian in a single account identified as belonging to the Custodian
for the benefit of its customers;
(b) The Custodian shall identify on its books as belonging to the
Client any Property held by a Subcustodian for the Custodian's account;
(c) The Custodian shall require that Property held by the Subcustodian
for the Custodian's account be identified on the Subcustodian's books as
separate from any other property held by the Subcustodian other than
property of the Custodian's customers held solely for the benefit of
customers of the Custodian; and
(d) In the event the Subcustodian holds Property in a securities
depository or clearing agency, such Subcustodian shall be required by its
agreement with the Custodian to identify on its books such Property as
being held for the account of the Custodian as custodian for its customers
or in such other manner as is required by local law or market practice.
4. Access to Records. The Custodian shall allow the Client's accountants
reasonable access to the Custodian's records relating to wazzu the Property held
by the Custodian as such accountants may reasonably require in connection with
their examination of the Client's affairs and/or confirmation of the contents of
these records. The Custodian shall also obtain from any Subcustodian (and shall
require each Subcustodian to use reasonable efforts to obtain from any
securities depository or clearing agency in which it deposits Property) an
undertaking, to the extent consistent with the laws and regulations of the
jurisdiction or jurisdictions to which such Subcustodian, securities depository
or clearing agency is subject, to permit independent public accountants such
reasonable access to the records of such Subcustodian, securities depository or
clearing agency or confirmation of the contents of these records as may be
reasonably required in connection with the examination of the Client's affairs
or to take such other action as the Custodian in its judgment may deem
sufficient to ensure such reasonable access.
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5. Reports. The Custodian shall provide such reports and other information
to the Client and to such persons as the Client directs as the Custodian and the
Client may agree from time to time including but not limited to an
identification of entities having possession of Property of the Client and
notification of any transfer to or from each account maintained by a foreign
Subcustodian for the Custodian on behalf of the Client.
6. Payment of Monies. The Custodian shall make, or cause any Subcustodian
to make, payments from monies being held in the Accounts only in accordance with
Authorized Instructions or as provided in Sections 9, 13 and 17.
The Custodian may act as the Client's agent or act as a principal in
foreign exchange transactions at such rates as are agreed from time to time
between the Client and the Custodian.
7. Transfer of Securities. The Custodian shall make, or cause any
Subcustodian to make, transfers, exchanges or deliveries of Securities only in
accordance with Authorized Instructions or as provided in Sections 9, 13 and 17.
8. Corporate Action. (a) The Custodian shall notify the Client of details
of all corporate actions affecting the Client's Securities promptly upon its
receipt of such information.
(b) The Custodian shall take, or cause any Subcustodian to take, such
corporate action only in accordance with Authorized Instructions or as provided
in this Section 8 or Section 9.
(c) In the event the Client does not provide timely Authorized Instructions
to the Custodian, the Custodian shall act in accordance with the default option
provided by local market practice and/or the issuer of the Securities.
(d) Fractional shares resulting from corporate action activity shall be
treated in accordance with local market practices.
9. General Authority. In the absence of Authorized Instructions to the
contrary, the Custodian may, and may authorize any Subcustodian to:
(a) make payments to itself or others for reasonable expenses of
handling Property or other similar items relating to its duties under this
Agreement, provided that all such payments shall be accounted for to the
Client;
(b) receive and collect all income and principal with respect to
Securities and to credit cash receipts to the Accounts;
(c) exchange Securities when the exchange is purely ministerial
(including, without limitation, the exchange of interim receipts or
temporary securities for securities in definitive form and the exchange of
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warrants, or other documents of entitlement to securities, for the
securities themselves);
(d) surrender Securities at maturity or when called for redemption
upon receiving payment therefor;
(e) execute in the Client's name such ownership and other certificates
as may be required to obtain the payment of income from Securities;
(f) pay or cause to be paid, from the Accounts, any and all taxes and
levies in the nature of taxes imposed on Property by any governmental
authority in connection with custody of and transactions in such Property;
(g) endorse for collection, in the name of the Client, checks, drafts
and other negotiable instruments;
(h) take non-discretionary action on mandatory corporate actions; and
(i) in general, attend to all nondiscretionary details in connection
with the custody, sale, purchase, transfer and other dealings with the
Property.
10. Authorized Instructions; Authorized Persons. (a) Except as otherwise
provided in Sections 6 through 9, 13 and 17, all payments of monies, all
transfers, exchanges or deliveries of Property and all responses to corporate
actions shall be made or taken only upon receipt by the Custodian of Authorized
Instructions; provided that such Authorized Instructions are timely received by
the Custodian. "Authorized Instructions" of the Client means instructions from
an Authorized Person received by telecopy, tested telex, electronic link or
other electronic means or by such other means as may be agreed in writing
between the Client and the Custodian.
(b) "Authorized Person" means each of the persons or entities identified on
Appendix 3 as amended from time to time by written notice from the Client to the
Custodian. The Client represents and warrants to the Custodian that each
Authorized Person listed in Appendix 3, as amended from time to time, is
authorized to issue Authorized Instructions on behalf of the Client. Prior to
the delivery of the Property to the Custodian, the Custodian shall provide a
list of designated system user ID numbers and passwords that the Client shall be
responsible for assigning to Authorized Persons. The Custodian shall assume that
an electronic transmission received and identified by a system user ID number
and password was sent by an Authorized Person. The Custodian agrees to provide
additional designated system user ID numbers and passwords as needed by the
Client. The Client authorizes the Custodian to issue new system user ID numbers
upon the request of a previously existing Authorized Person. Upon the issuance
of additional system user ID numbers by the Custodian to the Client, Appendix 3
shall be deemed automatically amended accordingly. The Client authorizes the
Custodian to receive, act and rely upon any Authorized Instructions received by
the Custodian which have been issued, or purport to have been issued, by an
Authorized Person.
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(c) Any Authorized Person may cancel/correct or otherwise amend any
Authorized Instruction received by the Custodian, but the Client agrees to
indemnify the Custodian for any liability, loss or expense incurred by the
Custodian and its Subcustodians as a result of their having relied upon or acted
on any prior Authorized Instruction. An amendment or cancellation of an
Authorized Instruction to deliver or receive any security or funds in connection
with a trade will not be processed once the trade has settled.
11. Registration of Securities. (a) In the absence of Authorized
Instructions to the contrary, Securities which must be held in registered form
shall be registered in the name of the Custodian or the Custodian's nominee or,
in the case of Securities in the custody of an entity other than the Custodian,
in the name of the Custodian, its Subcustodian or any such entity's nominee. The
Custodian may, without notice to the Client, cause any Securities to be
registered or re-registered in the name of the Client.
(b) Where the Custodian has been instructed by the Client to hold any
Securities in the name of any person or entity other than the Custodian, its
Subcustodian or any such entity's nominee, the Custodian shall not be
responsible for any failure to collect such dividends or other income or
participate in any such corporate action with respect to such Securities.
12. Deposit Accounts. All cash received by the Custodian for the Accounts
shall be held by the Custodian as a short-term credit balance in favor of the
Client and, if the Custodian and the Client have agreed in writing in advance
that such credit balances shall bear interest, the Client shall earn interest at
the rates and times as agreed between the Custodian and the Client. The Client
acknowledges that any such credit balances shall not be accompanied by the
benefit of any governmental insurance.
13. Short-term Credit Extensions. (a) From time to time, the Custodian may
extend or arrange short-term credit for the Client which is (i) necessary in
connection with payment and clearance of securities and foreign exchange
transactions or (ii) pursuant to an agreed schedule, as and if set forth in the
Client Services Guide, of credits for dividends and interest payments on
Securities. All such extensions of credit shall be repayable by the Client on
demand.
(b) The Custodian shall be entitled to charge the Client interest for any
such credit extension at rates to be agreed upon from time to time or, if such
credit is arranged by the Custodian with a third party on behalf of the Client,
the Client shall reimburse the Custodian for any interest charge. In addition to
any other remedies available, the Custodian shall be entitled to a right of
set-off against the Property to satisfy the repayment of such credit extensions
and the payment of, or reimbursement for, accrued interest thereon.
14. Representations. (a) The Client represents that (i) the execution,
delivery and performance of this Agreement (including, without limitation, the
ability to obtain the short-term extensions of credit in accordance with Section
13) are within the Client's power and authority and have been duly authorized by
all requisite action (corporate or otherwise) of the Client and of the
beneficial owner of the Property, if other than the Client, and (ii) this
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Agreement and each extension of short-term credit extended to or arranged for
the benefit of the Client in accordance with Section 13 shall at all times
constitute a legal, valid and binding obligation of the Client enforceable
against the Client in accordance with their respective terms, except as may be
limited by bankruptcy, insolvency or other similar laws affecting the
enforcement of creditors' rights in general and subject to the effect of general
principles of equity (regardless of whether considered in a proceeding in equity
or at law).
(b) The Custodian represents that (i) the execution, delivery and
performance of this Agreement are within the Custodian's power and authority and
have been duly authorized by all requisite action (corporate or otherwise) of
the Custodian and (ii) this Agreement constitutes the legal, valid and binding
obligation of the Custodian enforceable against the Custodian in accordance with
its terms, except as may be limited by bankruptcy, insolvency or other similar
laws affecting the enforcement of creditors' rights in general and subject to
the effect of general principles of equity (regardless of whether considered in
a proceeding in equity or at law).
15. Standard of Care; Indemnification. (a) The Custodian shall be
responsible for the performance of only such duties as are set forth in this
Agreement, the Client Services Guide or contained in Authorized Instructions
given to the Custodian which are not contrary to the provisions of any relevant
law or regulation. The Custodian shall be liable to the Client for any loss,
liability or expense incurred by the Client in connection with this Agreement to
the extent that any such loss, liability or expense results from the negligence
or willful misconduct of the Custodian or any Subcustodian.
(b) The Client acknowledges that the Property may be physically held
outside the United States. The Custodian shall not be liable for any loss,
liability or expense resulting from events beyond the reasonable control of the
Custodian, including, but not limited to, force majeure. Except as provided in
the previous sentence, the liability of the Custodian for losses incurred by the
Client in respect of Property shall not be affected by the Custodian's use of
Subcustodians.
(c) In addition, the Client shall indemnify the Custodian and Subcustodians
and any nominee for, and hold each of them harmless from, any liability, loss or
expense (including attorneys' fees and disbursements) incurred (i) as a result
of the Custodian having acted or relied upon any Authorized Instructions or
otherwise acted in accordance with the terms of this Agreement or (ii) arising
out of any such person acting as a nominee or holder of record of Securities;
provided, however, that this indemnity shall not cover any liability, loss or
expense incurred by the Custodian or any Subcustodian which directly results
from the negligence or willful misconduct of the Custodian or such Subcustodian.
The Custodian shall notify the Client promptly upon becoming aware of any
matters which may result in liability, loss or expense to the Client as provided
for in this Agreement. The Client shall be responsible to promptly instruct the
Custodian as to how to pursue the resolution of any such matters on its behalf.
16. Fees; Liens. The Client shall pay to the Custodian from time to time
such compensation for its services pursuant to this Agreement as may be mutually
agreed upon as well as the Custodian's reasonable out-of-pocket and incidental
expenses. The Client shall hold the Custodian harmless from any liability or
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loss resulting from any taxes or other governmental charges, and any expenses
related thereto, which may be imposed or assessed with respect to the Accounts
or any Property held therein. The Custodian is, and any Subcustodians are,
authorized to charge the Accounts for such items and the Custodian shall have a
lien, charge and security interest on any and all Property for any amount owing
to the Custodian from time to time under this Agreement.
17. Termination. This Agreement may be terminated by the Client or the
Custodian by 60 days written notice to the other, sent by registered mail. If
notice of termination is given, the Client shall, within 30 days following the
giving of such notice, deliver to the Custodian a statement in writing
specifying the successor custodian or other person to whom the Custodian shall
transfer the Property. In either event, the Custodian, subject to the
satisfaction of any lien it may have, shall transfer the Property to the person
so specified. If the Custodian does not receive such statement the Custodian, at
its election, may transfer the Property to a bank or trust company established
under the laws of the United States or any state thereof to be held and disposed
of pursuant to the provisions of this Agreement or may continue to hold the
Property until such a statement is delivered to the Custodian. In such event the
Custodian shall be entitled to fair compensation for its services during such
period as the Custodian remains in possession of any Property and the provisions
of this Agreement relating to the duties and obligations of the Custodian shall
remain in full force and effect; provided, however, that the Custodian shall
have no obligation to settle any transactions in Securities for the Accounts.
The provisions of Sections 15 and 16 shall survive termination of this
Agreement.
18. Investment Advice. The Custodian shall not supervise, recommend or
advise the Client relative to the investment, purchase, sale, retention or other
disposition of any Property held under this Agreement.
19. Confidentiality. The Custodian, its agents and employees shall maintain
the confidentiality of information concerning the Property held in the Client's
account, including in dealings with affiliates of the Custodian. In the event
the Custodian or any Subcustodian is requested or required to disclose any
confidential information concerning the Property, the Custodian shall, to the
extent legally permissible, promptly notify the Client of such request or
requirement so that the Client may seek a protective order or waive any
objection to the Custodian's or such Subcustodian's compliance with this Section
19. In the absence of such a waiver, if the Custodian or such Subcustodian is
compelled, in the opinion of its counsel, to disclose any confidential
information, the Custodian or such Subcustodian may disclose such information to
such persons as, in the opinion of counsel, is so required.
20. Notices. Any notice or other communication from the Client to the
Custodian, unless otherwise provided by this Agreement or the Client Services
Guide, shall be sent by certified or registered mail to Xxxxxx Xxxxxxx Trust
Company, Xxx Xxxxxxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxx, 00000, Attention: President,
and any notice from the Custodian to the Client is to be mailed postage prepaid,
addressed to the Client at the address appearing below (Attention: Treasurer),
or as it may hereafter be changed on the Custodian's records in accordance with
written notice from the Client.
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21. Assignment. This contract may not be assigned by either party without
the prior written
approval of the other.
22. Miscellaneous. (a) This Agreement shall bind the successors and assigns
of the Client and the Custodian.
(b) This Agreement shall be governed by and construed in accordance with
the internal laws of the State of New York without regard to its conflicts of
law rules and to the extent not preempted by federal law. The Custodian and the
Client hereby irrevocably submit to the exclusive jurisdiction of any New York
State court or any United States District Court located in the State of New York
in any action or proceeding arising out of this Agreement and hereby irrevocably
waive any objection to the venue of any such action or proceeding brought in any
such court or any defense of an inconvenient forum.
In witness whereof, the parties hereto have set their hands as of the date
first above written.
XXXXXXXX XXXXXXXXX GLOBAL FUND
SERIES, INC.
By
-------------------------
Name:
Title:
Address for record 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Treasurer
Accepted:
XXXXXX XXXXXXX TRUST COMPANY
By
----------------------------
Authorized Signature
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APPENDIX 1
Account Documentation
REQUIRED DOCUMENTATION FOR CORE CUSTODIAL SERVICES (INCLUDING TAX RECLAIMS):
CUSTODY AGREEMENT
CLIENT SERVICES GUIDE (INCLUDING APPENDICES)
FEE SCHEDULE / BILLING GUIDE
GENERAL ACCOUNT INFORMATION
US TAX AUTHORITY DOCUMENTATION
LOCAL TAX OFFICE LETTER / APPLICATION LETTER
(NON-UNITED STATES-RESIDENT BENEFICIAL OWNERS, ONLY)
FORM 6166 / REQUEST FOR FOREIGN CERTIFICATION FORM
(UNITED STATES-RESIDENT BENEFICIAL OWNERS, ONLY)
CERTIFICATION OF BENEFICIAL OWNERSHIP, LEGAL NAME, LEGAL RESIDENCY, TAX STATUS
AND TAX IDS
TAX RECLAIM POWER OF ATTORNEY
PREVIOUS TAX RECLAIM FILING INFORMATION
(PREVIOUS FILERS, ONLY)
UK TAX AUTHORITY DOCUMENTATION
SOPHISTICATED INVESTOR (ACCREDITED INVESTOR) LETTER
(UNITED STATES-RESIDENT BENEFICIAL OWNERS, ONLY)
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DOCUMENTATION THAT IS REQUIRED FROM AN ENTITY CLASSIFIED AS TAX-EXEMPT BY ITS
LOCAL TAX AUTHORITY:
UK FORM 4338
(EXEMPT NON-UNITED KINGDOM-RESIDENT BENEFICIAL OWNERS, ONLY)
UK FORM 309A
(EXEMPT UNITED STATES-RESIDENT BENEFICIAL OWNERS, ONLY)
FOREIGN EXEMPTION LETTERS / APPLICATION FOR AUSTRALIAN EXEMPTION LETTER
(EXEMPT BENEFICIAL OWNERS, ONLY)
DOCUMENTATION THAT IS REQUIRED ONLY IF YOU WILL USE THE PROXY VOTING SERVICE:
VOTING POWER OF ATTORNEY
DOCUMENTATION THAT IS REQUIRED ONLY IF YOU WILL DEAL IN CERTAIN SECURITIES:
JGB INDEMNIFICATION LETTER
KOREAN SECURITIES POWER OF ATTORNEY
NEW ZEALAND 'APPROVED ISSUER LEVY' LETTER
SPANISH POWER OF ATTORNEY WITH APOSTILE
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APPENDIX 2
Client Accounts
Account Name Account Number Account Mnemonic
------------ -------------- ----------------
1. Xxxxxxxx Xxxxxxxxx 000402644 HSIF
International Fund
2. Xxxxxxxx Xxxxxxxxx Global 000402685 HGEC
Smaller Companies
Fund -- Foreign
3. Xxxxxxxx Xxxxxxxxx Global 000402693 HSEC
Smaller Companies
Fund - Domestic
4. Xxxxxxxx Xxxxxxxxx Global 000403048 HHGT
Technology Fund -- Foreign
5. Xxxxxxxx Xxxxxxxxx Global 000403055 HSGT
Technology Fund -- Domestic
6. Xxxxxxxx Henderon Global ? ?
Growth Opportunities
Fund -- Foreign
7. Xxxxxxxx Xxxxxxxxx Global ? ?
Growth Opportunities
Fund -- Domestic
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APPENDIX 3
Part I - Authorized Signatures
The Custodian is directed to accept and act upon Authorized Instructions
received from any of the following persons or entities:
Telephone/ Authorized
Name Organization Title Fax Signature
---- ------------ ----- ---------- ----------
Authorized by:-------------------------
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Part II - System User ID numbers
The Custodian is directed to accept and act upon Authorized Instructions
transmitted electronically and identified with the following mnemonics and
system user ID numbers for the following activities:
Work Station Account Workstation Sessions
User I.D. Mnemonic Number TE TCC SL FE CM MA TD
--------- -------- ------ -- --- -- -- -- -- --
Workstation Session Codes
-------------------------
TE Trade Entry
TCC Trade Cancel/Correct
SL Securities Lending
FE Foreign Exchange
CM Cash Movement
MA Mass Authorization
TD Time Deposit
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EXHIBIT A
Subcustodians
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