EXHIBIT 99.8
CUSTODIAN AGREEMENT
AGREEMENT made this 13th day of December, 1989, between XXXXXXX
XXXXX GLOBAL ALLOCATION FUND INC (the "Fund") and Xxxxx Brothers
Xxxxxxxx & Co. (the "Custodian").
WITNESSETH: That in consideration of the mutual covenants
and agreements herein contained, the parties hereto agree as
follows:
1. The Fund hereby employs and appoints the Custodian as a
custodian for the term and subject to the provisions of this
Agreement. The 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. The Fund will deposit with the Custodian copies of
the Certificate of Incorporation and By-Laws (or comparable
documents) of the Fund and all amendments thereto, and copies of
such votes and other proceedings of the Fund as may be necessary
for or convenient to the Custodian in the performance of its
duties.
2. Except for securities and funds held by subcustodians
appointed pursuant to the provisions of Section 3 hereof, the
Custodian shall have and perform the following powers and duties:
A. Safekeeping - To keep safely the securities of the Fund
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that have been delivered to the Custodian and from time to time
to receive delivery of securities for safekeeping.
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B. Manner of Holding Securities - To hold securities of the
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Fund (1) by physical possession of the share certificates or
other instruments representing such securities in registered or
bearer form, or (2) in book-entry form by a Securities System (as
said term is defined in Section 2S).
C. Registered Name; Nominee - To hold registered securities
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of the Fund (1) in the name or any nominee name of the Custodian
or the Fund, or in the name or any nominee name of any agent
appointed pursuant to Section 6E, or (2) in street certificate
form, so-called, and in any case with or without any indication
of fiduciary capacity.
D. Purchases - Upon receipt of Proper Instructions, as
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defined in Section V on Page 14, insofar as funds are available
for the purpose, to pay for and receive securities purchased for
the account of the Fund, payment being made only upon receipt of
the securities (1) by the Custodian, or (2) by a clearing
corporation of a national securities exchange of which the
Custodian is a member, or (3) by a Securities System. However,
(i) in the case of repurchase agreements entered into by the
Fund, the Custodian may release funds to a Securities System or
to a Subcustodian prior to the receipt of advice from the
Securities System or Subcustodian that the securities underlying
such repurchase agreement have been transferred by book entry
into the Account (as defined in Section 2S) of the Custodian
maintained with such Securities System or Subcustodian, so long
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as such payment instructions to Securities System or Subcustodian
include a requirement that delivery is only against payment of
securities, and (ii) in the case of time deposits, call account
deposits, currency deposits, and other deposits, contracts or
options pursuant to Sections 2K, 2L and 2M, the Custodian may
make payment therefor without receiving an instrument evidencing
said deposit so long as such payment instructions detail specific
securities to be acquired.
E. Exchanges - Upon receipt of proper instructions, to
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exchange securities held by it for the account of the Fund for
other securities in connection with any reorganization,
recapitalization, split-up of shares, change of par value,
conversion or other event, and to deposit any such securities in
accordance with the terms of any reorganization or protective
plan. Without such instructions, the Custodian may surrender
securities in temporary form for definitive securities, may
surrender securities for transfer into a name or nominee name as
permitted in Section 2C, and may surrender securities for a
different number of certificates or instruments representing the
same number of shares or same principal amount of indebtedness,
provided the securities to be issued are to be delivered to the
Custodian and further provided custodian shall at the time of
surrendering securities or instruments receive a receipt or other
evidence of ownership thereof.
F. Sales of Securities - Upon receipt of proper
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instructions, to make delivery of securities which have been sold
for the account of the Fund, but only against payment therefor
(1) in cash, by a certified check, bank cashier's check, bank
credit, or bank wire transfer, or (2) by credit to the account of
the Custodian with a clearing corporation of a national
securities exchange of which the Custodian is a member, or (3) by
credit to the account of the Custodian or an Agent of the
Custodian with a Securities System.
G. Depositary Receipts - Upon receipt of proper
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instructions, to instruct a subcustodian appointed pursuant to
Section 3 hereof (a "Subcustodian") or an agent of the Custodian
appointed pursuant to Section 6E hereof (an "Agent") to surrender
securities to the depositary 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 Subcustodian or Agent that the depositary 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,
ror delivery to the Custodian in Boston, Massachusetts, or at
such other place as the Custodian may from time to time
designate.
Upon receipt of proper instructions, to surrender
ADRs to the issuer thereof against a written receipt therefor
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adequately describing the ADRs surrendered and written evidence
satisfactory to the Custodian that the issuer of the ADRs has
acknowledged receipt of instructions to cause its depositary to
deliver the securities underlying such ADRs to a Subcustodian or
an Agent.
H. Exercise of Rights; Tender Offers - Upon timely receipt
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of proper instructions, to deliver to the issuer or trustee
thereof, or to the agent of either, warrants, puts, calls, rights
or similar securities for the purpose of being exercised or sold,
provided that the new securities and cash, if any, acquired by
such action are to be delivered to the Custodian, and, upon
receipt of proper instructions, to deposit securities upon
invitations for tenders of securities, provided that the
consideration is to be paid or delivered or the tendered
securities are to be returned to the Custodian.
I. Stock Dividends, Rights, Etc. - To receive and collect
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all stock dividends, rights and other items of like nature; and
to deal with the same pursuant to proper instructions relative
thereto.
J. Borrowings - Upon receipt of proper instructions, to
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deliver securities of the Fund to lenders or their agents as
collateral for borrowings effected by the Fund, provided that
such borrowed money is payable to or upon the Custodian's order
as Custodian for the Fund.
K. Demand Deposit Bank Accounts - To open and operate an
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account or accounts in the name of the Fund on the Custodian's
books subject only to draft or order by the Custodian. All funds
received by the Custodian from or for the account of the Fund
shall be deposited in said account(s). The responsibilities of
the Custodian to the Fund for deposits accepted on the
Custodian's books shall be that of a U. S. bank for a similar
deposit.
If and when authorized by proper instructions, the Custodian
may open and operate an additional account(s) in such other banks
or trust companies as may be designated by the Fund in such
instructions (any such bank or trust company so designated by the
Fund being referred to hereafter as a "Banking Institution"),
provided that such account(s) shall be in the name of the
Custodian for account of the Fund and subject only to the
Custodian's draft or order. Such accounts may be opened with
Banking Institutions in the United States and in other countries
and may be denominated in either U. S. Dollars or other
currencies as the Fund may determine. All such deposits shall be
deemed to be portfolio securities of the Fund and accordingly the
responsibility of the Custodian therefore shall be the same as
and neither lesser nor greater than the Custodian's
responsibility in respect of other portfolio securities of the
Fund.
L. Interest Bearing Call or Time Deposits - To place
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interest bearing fixed term and call deposits with such banks and
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in such amounts as the Fund may authorize pursuant to proper
instructions. Such deposits may be placed with the Custodian or
with Subcustodians or other Banking Institutions as the Fund may
determine. Deposits may be denominated in U. S. Dollars or other
currencies and need not be evidenced by the issuance or delivery
of a certificate to the Custodian, provided that the Custodian
shall include in its records with respect to the assets of the
Fund, appropriate notation as to the amount and currency of each
such deposit, the accepting Banking Institution, and other
appropriate details. Such deposits, other than those placed with
the Custodian, shall be deemed portfolio securities of the Fund
and the responsibilities of the Custodian therefor shall be the
same as those for demand deposit bank accounts placed with other
banks, as described in Section K of this agreement. The
responsibility of the Custodian for such deposits accepted on the
Custodian's books shall be that of a U. S. bank for a similar
deposit.
M. Foreign Exchange Transactions and Futures Contracts -
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Pursuant to proper instructions, to enter into foreign exchange
contracts or options to purchase and sell foreign currencies for
spot and future delivery on behalf and for the account of the
Fund. Such transactions may be undertaken by the Custodian with
such Banking institutions, including the Custodian and
Subcustodian(s) as principals, as approved and authorized by the
Fund. Foreign exchange contracts and options other than those
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executed with the Custodian, shall be deemed to be portfolio
securities of the Fund and the responsibilities of the Custodian
therefor shall be the same as those for demand deposit bank
accounts placed with other banks as described in Section 2-K of
this agreement. Upon receipt of proper instructions, to receive
and retain confirmations evidencing the purchase or sale of a
futures contract or an option on a futures contract by the Fund;
to deposit and maintain in a segregated account, for the benefit
of any futures commission merchant or to pay to such futures
commission merchant, assets designated by the fund as initial,
maintenance or variation "margin" deposits intended to secure the
Fund's performance of its obligations under any futures contracts
purchased or sold or any options on futures contracts written by
the Fund, in accordance with the provisions of any agreement or
agreements among any of the Fund, the Custodian and such futures
commission merchant, designated to comply with the rules of the
Commodity Futures Trading Commission and/or any contract market,
or any similar organization or organizations, regarding such
margin deposits; and to release and/or transfer assets in such
margin accounts only in accordance with any such agreements or
rules.
N. Stock Loans - Upon receipt of proper instructions, to
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deliver securities of the Fund, in connection with loans of
securities by the Fund, to the borrower thereof upon the receipt
of the cash collateral, if any, for such borrowing. In the event
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U.S. Government securities are to be used as collateral, the
Custodian will not release the securities to be loaned until it
has received confirmation that such collateral has been delivered
to the Custodian. The Custodian and Fund understand that the
timing of receipt of such confirmation will normally require that
the delivery of securities to be loaned will be made one day
after receipt of the U. S. Government collateral.
O. Collections - To collect, receive and deposit in said
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account or accounts all income and other payments with respect to
the securities held hereunder, and to execute ownership and other
certificates and affidavits for all federal and state tax
purposes in connection with receipt of income or other payments
with respect to securities of the Fund or in connection with
transfer of securities, and pursuant to proper instructions to
take such other actions with respect to collection or receipt of
funds or transfer of securities which involve an investment
decision.
P. Dividends, Distributions and Redemptions - Upon receipt
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of proper instructions from the Fund, or upon receipt of
instructions from the Fund's shareholder servicing agent or agent
with comparable duties (the "Shareholder Servicing Agent") (given
by such person or persons and in such manner on behalf of the
Shareholder Servicing Agent as the Fund shall have authorized),
the Custodian shall release funds or securities to the
Shareholder Servicing Agent or otherwise apply funds or
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securities, insofar as available, for the payment of dividends or
other distributions to Fund shareholders. Upon receipt of proper
instructions from the Fund, or upon receipt of instructions from
the Shareholder Servicing Agent (given by such person or persons
and in such manner on behalf of the Shareholder Servicing Agent
as the Fund shall have authorized), the Custodian shall release
funds or securities, insofar as available, to the Shareholder
Servicing Agent or as such Agent shall otherwise instruct for
payment to Fund shareholders who have delivered to such Agent a
request for repurchase or redemption of their shares of capital
stock of the Fund.
Q. Proxies, Notices, Etc. - Promptly to deliver or mail to
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the Fund all forms of proxies and all notices of meetings and any
other notices or announcements affecting or relating to
securities owned by the Fund that are received by the Custodian,
and upon receipt of proper instructions, to execute and deliver
or cause its nominee to execute and deliver such proxies or other
authorizations as may be required. Neither the Custodian nor its
nominee shall vote upon any of such securities or execute any
proxy to vote thereon or give any consent or take any other
action with respect thereto (except as otherwise herein provided)
unless ordered to do so by proper instructions.
R. Bills - Upon receipt of proper instructions, to pay or
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cause to be paid, insofar as funds are available for the purpose,
bills, statements, or other obligations of the Fund.
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S. Deposit of Fund Assets in Securities Systems - The
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Custodian may deposit and/or maintain securities owned by the
Fund in (i) The Depository Trust Company, (ii) any book-entry
system as provided in Subpart 0 of Treasury Circular Xx. 000, 00
XXX 000, Xxxxxxx X of 31 CFR Part 350, or the book-entry
regulations of federal agencies substantially in the form of
Subpart 0, or (iii) any other domestic clearing agency registered
with the Securities and Exchange Commission under Section 17A of
the Securities Exchange Act of 1934 which acts as a securities
depository and whose use the Fund has previously approved in
writing (each of the foregoing being referred to in this
Agreement as a "Securities System"). Utilization of a Securities
System shall be in accordance with applicable Federal Reserve
Board and Securities and Exchange Commission rules and
regulations, if any, and subject to the following provisions:
1) The Custodian may deposit and/or maintain Fund
securities, either directly or through one or more Agents
appointed by the Custodian (provided that any such agent shall be
qualified to act as a custodian of the Fund pursuant to the
Investment Company Act of 1940 and the rules and regulations
thereunder), in a Securities System provided that such securities
are represented in an account ("Account") of the Custodian or
such Agent in the Securities System which shall not include any
assets of the Custodian or Agent other than assets held as a
fiduciary, custodian, or otherwise for customers;
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2) The records of the Custodian with respect to securities
of the Fund which are maintained in a Securities System shall
identify by book-entry those securities belonging to the Fund;
3) The Custodian shall pay for securities purchased for the
account of the Fund upon (i) receipt of advice from the
Securities System that such securities have been transferred to
the Account, and (ii) the making of an entry on the records of
the Custodian to reflect such payment and transfer for the
account of the Fund. The Custodian shall Transfer securities
sold for the account of the Fund upon (i) receipt of advice from
the Securities System that payment for such securities has been
transferred to the Account, and (ii) the making of an entry on
the records of the Custodian to reflect such transfer and payment
for the account of the Fund. Copies of all advices from the
Securities System of transfers of securities for the account of
the Fund shall identify the Fund, be maintained for the Fund by
the Custodian or an Agent as referred to above, and be provided
to the Fund at its request. The Custodian shall furnish the Fund
confirmation of each transfer to or from the account of the Fund
in the form of a written advice or notice and shall furnish to
the Fund copies of daily transaction sheets reflecting each day's
transactions in the Securities System for the account of the Fund
on the next business day;
4) The Custodian shall provide the Fund with any report
obtained by the Custodian or any Agent as referred to above on
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the Securities System's accounting system, internal accounting
control and procedures for safeguarding securities deposited in
the Securities System; and the Custodian and such Agents shall
send to the Fund such reports on their own systems of internal
accounting control as the Fund may reasonably request from time
to time.
5) At the written request of the Fund, the Custodian will
terminate the use of any such Securities System on behalf of the
Fund as promptly as practicable.
T. Other Transfers - Upon receipt of Proper Instructions,
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to deliver securities, funds and other property of the Fund to a
Subcustodian or another custodian of the Fund; and, upon receipt
of proper instructions, to make such other disposition of
securities, funds or other property of the Fund in a manner other
than or for purposes other than as enumerated elsewhere in this
Agreement, provided that the instructions relating to such
disposition shall include a statement of the purpose for which
the delivery is to be made, the amount of securities to be
delivered and the name of the person or persons to whom delivery
is to be made.
U. Investment Limitations - In performing its duties
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generally, and more particularly in connection with the purchase,
sale and exchange of securities made by or for the Fund, the
Custodian may assume unless and until notified in writing to the
contrary that proper instructions received by it are not in
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conflict with or in any way contrary to any provisions of the
Fund's Certificate of Incorporation or By-Laws (or comparable
documents) or votes or proceedings of the shareholders or
Directors of the Fund. The Custodian shall in no event be liable
to the Fund and shall be indemnified by the Fund for any
violation which occurs in the course of carrying out instructions
given by the Fund of any investment limitations to which the Fund
is subject or other limitations with respect to the Fund's powers
to make expenditures, encumber securities, borrow or take similar
actions affecting its portfolio.
V. Proper Instructions - Proper instructions shall mean a
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tested telex from the Fund or a written request, direction,
instruction or certification signed or initialled on behalf of
the Fund by two or more persons as the Board of Directors of the
Fund shall have from time to time authorized, provided, however,
that no such instructions directing the delivery of securities or
the payment of funds to an authorized signatory of the Fund shall
be signed by such person. Those persons authorized to give
proper instructions may be identified by the Board of Directors
by name, title or position and will include at least one officer
empowered by the Board to name other individuals who are
authorized to give proper instructions on behalf of the Fund.
Telephonic or other oral instructions given by any one of the
above persons will be considered proper instructions if the
Custodian reasonably believes them to have been given by a person
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authorized to give such instructions with respect to the
transaction involved. oral instructions will be confirmed by
tested telex or in writing in the manner set forth above but the
lack of such confirmation shall in no way affect any action taken
by the Custodian in reliance upon such oral instructions. The
Fund authorizes the Custodian to tape record any and all
telephonic or other oral instructions given to the Custodian by
or on behalf of the Fund (including any of its officers,
Directors, employees or agents) and will deliver to the Custodian
a similar authorization from any investment manager or adviser or
person or entity with similar reponsibilities which is authorized
to give proper instructions on behalf of the Fund to the
Custodian. Proper instructions may relate to specific
transactions or to types or classes of transactions, and may be
in the form of standing instructions.
Proper instructions may include communications effected
directly between electromechanical or electronic devices or
systems, in addition to tested telex, provided that the Fund and
the Custodian agree to the use of such device or system.
3. Securities, funds and other property of the Fund may be
held by subcustodians appointed pursuant to the provisions of
this Section 3 (a "Subcustodian"). The Custodian may, at any
time and from time to time, appoint any bank or trust company
(meeting the requirements of a custodian or a foreign custodian
under the Investment Company Act of 1940 and the rules and
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regulations thereunder) to act as a Subcustodian for the Fund,
provided that the Fund shall have approved in writing (1) any
such bank or trust company and the subcustodian agreement to be
entered into between such bank or trust company and the
Custodian, and (2) if the subcustodian is a bank organized under
the laws of a country other than the United States, the holding
of securities, cash and other property of the Fund in the country
in which it is proposed to utilize the services of such
subcustodian. Upon such approval by the Fund, the Custodian is
authorized on behalf of the Fund to notify each Subcustodian of
its appointment as such. The Custodian may, at any time in its
discretion, remove any bank or trust company that has been
appointed as a Subcustodian but will promptly notify the Fund of
any such action.
Those Subcustodians, their offices or branches which the
Fund has approved to date are set forth on Appendix A hereto.
Such Appendix shall be amended from time to time as
Subcustodians, branches or offices 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 at a location not listed on Appendix A, in order that there
shall be sufficient time for the Fund to give the approval
required by the preceding paragraph and for the Custodian to put
the appropriate arrangements in place with such Subcustodian
pursuant to such subcustodian agreement.
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Although the Fund does not intend to invest in a country
before the foregoing procedures have been completed, in the event
that an investment is made prior to approval, if practical, such
security shall be removed to an approved location or if not
practical such security shall be held by such agent as the
Custodian may appoint. In such event, the Custodian shall be
liable to the Fund for the actions of such agent if and only to
the extent the Custodian shall have recovered from such agent for
any damages caused the Fund by such agent and provided that the
Custodian shall pursue its rights against such agent.
With respect to the securities and funds held by a
Subcustodian, either directly or indirectly, including demand and
interest bearing deposits, currencies or other deposits and
foreign exchange contracts as referred to in Sections 2K, 2L or
2M, the Custodian shall be liable to the Fund if and only to the
extent that such Subcustodian is liable to the Custodian and the
Custodian recovers under the applicable subcustodian agreement.
The Custodian shall nevertheless be liable to the Fund for its
own negligence in transmitting any instructions received by it
from the Fund and for its own negligence in connection with the
delivery of any securities or funds held by it to any such
Subcustodian.
In the event that any Subcustodian appointed pursuant to the
provisions of this Section 3 fails to perform any of its
obligations under the terms and conditions of the applicable
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subcustodian agreement, the Custodian shall use its best efforts
to cause such Subcustodian to perform such obligations. In the
event that the Custodian is unable to cause such Subcustodian to
perform fully its obligations thereunder, the Custodian shall
forthwith upon the Fund's request terminate such Subcustodian
and, if necessary or desirable, appoint another subcustodian in
accordance with the provisions of this Section 3. At the
election of the Fund, it shall have the right to enforce, to the
extent permitted by the subcustodian agreement and applicable
law, the Custodian's rights against any such Subcustodian for
loss or damage caused the Fund by such Subcustodian.
At the written request of the Fund, the Custodian will
terminate any subcustodian appointed pursuant to the provisions
of this Section 3 in accordance with the termination provisions
under the applicable subcustodian agreement. The Custodian will
not amend any subcustodian agreement or agree to change or permit
any changes thereunder except upon the prior written approval of
the Fund.
In the event the Custodian receives a claim from a
Subcustodian under the indemnification provisions of any
subcustodian agreement, the Custodian shall promptly give written
notice to the Fund of such claim. No more than thirty days after
written notice to the Fund of the Custodian's intention to make
such payment, the Fund will reimburse the Custodian the amount of
such payment except in respect of any negligence or misconduct of
the Custodian.
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4. The Custodian may assist generally in the preparation of
reports to Fund shareholders and others, audits of accounts, and
other ministerial matters of like nature.
5. The Fund hereby also appoints the Custodian as its
financial agent. With respect to the appointment as financial
agent, the Custodian shall have and perform the following powers
and duties:
A. Records - To create, maintain and retain such records
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relating to its activities and obligations under this Agreement
as are required under the Investment Company Act of 1940 and the
rules and regulations thereunder (including Section 31 thereof
and Rules 3la-1 and 3la-2 thereunder) and under applicable
Federal and State tax laws. All such records will be the
property of the Fund and in the event of termination of this
Agreement shall be delivered to the successor custodian, and the
Custodian agrees to cooperate with the Fund in execution of
documents and other action necessary or desirable in order to
substitute the successor custodian for the Custodian under this
Agreement.
B. Accounts - To keep books of account and render
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statements, including interim monthly and complete quarterly
financial statements, or copies thereof, from time to time as
reasonably requested by proper instructions.
C. Access to Records - Subject to security requirements of
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the Custodian applicable to its own employees having access to
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similar records within the Custodian and such regulations as may
be reasonably imposed by the Custodian, the books and records
maintained by the Custodian pursuant to Sections 5A and 5B shall
be open to inspection and audit at reasonable times by officers
of, attorneys for, and auditors employed by, the Fund.
D. Disbursements - Upon receipt of proper instructions, to
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pay or cause to be paid, insofar as funds are available for the
purpose, bills, statements and other obligations of the Fund
(including but not limited to interest charges, taxes, management
fees, compensation to Fund officers and employees, and other
operating expenses of the Fund).
6. A. The Custodian shall not be liable for any action
taken or omitted in reliance upon proper instructions believed by
it to be genuine or upon any other written notice, request,
direction, instruction, certificate or other instrument believed
by it to be genuine and signed by the proper party or parties.
The Secretary or Assistant Secretary of the Fund shall
certify to the Custodian the names, signatures and scope of
authority of all persons authorized to give proper instructions
or any other such notice, request, direction, instruction,
certificate or instrument on behalf of the Fund, the names and
signatures of the officers of the Fund, the name and address of
the Shareholder Servicing Agent, and any resolutions, votes,
instructions or directions of the Fund's Board of Directors or
shareholders. Such certificate may be accepted and relied upon
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by the Custodian as conclusive evidence of the facts set forth
therein and may be considered in full force and effect until
receipt of a similar certificate to the contrary.
So long as and to the extent that it is in the exercise of
reasonable care, the Custodian shall not be responsible for the
title, validity or genuineness of any property or evidence of
title thereto received by it or delivered by it pursuant to this
Agreement.
The Custodian shall be entitled, at the expense of the Fund,
(but only to the extent such expenses are reasonable) to receive
and act upon advice of counsel (who may be counsel for the Fund)
on all matters, and the Custodian shall be without liability for
any action reasonably taken or omitted pursuant to such advice.
B. With respect to the portfolio securities, cash and other
property of the Fund held by a Securities System, the Custodian
shall be liable to the Fund only for any loss or damage to the
Fund resulting from use of the Securities System if caused by any
negligence, misfeasance or misconduct of the Custodian or any of
its agents or of any of its or their employees or from any
failure of the Custodian or any such agent to enforce effectively
such rights as it may have against the Securities System.
C. Except as may otherwise be set forth in this Agreement
with respect to particular matters, the Custodian shall be held
only to the exercise of reasonable care and diligence in carrying
out the provisions of this Agreement, provided that the Custodian
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shall not thereby be required to take any action which is in
contravention of any applicable law. However, nothing herein
shall exempt the Custodian from liability due to its own
negligence or willful misconduct. The Fund agrees to indemnify
and hold harmless the Custodian and its nominees from all claims
and liabilities (including reasonable counsel fees) incurred or
assessed against it or its nominees in connection with the
performance of this Agreement, except such as may arise from its
or its nominee's breach of the relevant standard of conduct set
forth in this Agreement. Without limiting the foregoing
indemnification obligation of the Fund, the Fund agrees to
indemnify the Custodian and its nominees against any liability
the Custodian or such nominee may incur by reason of taxes
assessed to the Custodian or such nominee or other costs,
liability or expense incurred by the Custodian or such nominee
resulting directly or indirectly from the fact that portfolio
securities or other property of the Fund is registered in the
name of the Custodian or such nominee.
In order that the indemnification provisions contained in
this Paragrapgh 6-C shall apply, however, it is understood that
if in any case the Fund may be asked to indemnify or hold the
Custodian harmless, the Fund shall be fully and promptly advised
of all pertinent facts concerning the situation in question, and
it is further understood that the Custodian will use all
reasonable care to identify and notify the Fund promptly
- 22 -
concerning any situation which presents or appears likely to
present the probability of such a claim for indemnification
against the Fund. The Fund shall have the option to defend the
Custodian against any claim which may be the subject of this
indemnification, and in the event that the Fund so elects it will
so notify the Custodian, and thereupon the Fund shall take over
complete defense of the claim, and the Custodian shall in such
situation initiate no further legal or other expenses for which
it shall seek indemnification under the Paragraph 6-C. The
Custodian shall in no case confess any claim or make any
compromise in any case in which the Fund will be asked to
indemnify the Custodian except with the Fund's prior written
consent.
It is also understood that the Custodian shall not be liable
for any loss involving any securities, currencies, deposits or
other property of the Fund, whether maintained by it, a
Subcustodian, an agent of the Custodian or a Subcustodian, a
Securities System, or a Banking Institution, or a loss arising
from a foreign currency transaction or contract, resulting from a
Sovereign Risk. A "Sovereign Risk" shall mean nationalizaton,
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
- 23 -
charges affecting the Fund's property; or acts of war, terrorism,
insurrection or revolution; or any other similar act or event
beyond the Custodian's control.
D. The Custodian shall be entitled to receive reimbursement
from the Fund on demand, in the manner provided in Section 7, for
its cash disbursements, expenses and charges (including the fees
and expenses of any Subcustodian or any Agent) in connection with
this Agreement, but excluding salaries and usual overhead
expenses.
E. The Custodian may at any time or times in its discretion
appoint (and may at any time remove) any other bank or trust
company as its agent (an "Agent") to carry out such of the
provisions of this Agreement as the Custodian may from time to
time direct, provided, however, that the appointment of such
Agent (other than an Agent appointed pursuant to the third
paragraph of Section 3) shall not relieve the Custodian of any of
its responsibilities under this agreement.
F. Upon request, the Fund shall deliver to the Custodian
such proxies, powers of attorney or other instruments as may be
reasonable and necessary or desirable in connection with the
performance by the Custodian or any Subcustodian of their
respective obligations under this Agreement or any applicable
subcustodian agreement.
7. The Fund shall pay the Custodian a custody fee based on
such fee schedule as may from time to time be agreed upon in
- 24 -
writing by the Custodian and the Fund. Such fee, together with
all amounts for which the Custodian is to be reimbursed in
accordance with Section 6D, shall be billed to the Fund in such a
manner as to permit payment by a direct cash payment to the
Custodian.
8. This Agreement shall continue in full force and effect
until terminated by either party by an instrument in writing
delivered or mailed, postage prepaid, to the other party, such
termination to take effect not sooner than seventy five (75) days
after the date of such delivery or mailing. In the event of
termination the Custodian shall be entitled to receive prior to
delivery of the securities, funds and other property held by it
all accrued fees and unreimbursed expenses the payment of which
is contemplated by Sections 6D and 7, upon receipt by the Fund of
a statement setting forth such fees and expenses.
In the event of the appointment of a successor custodian, it
is agreed that the funds and securities owned by the Fund and
held by the Custodian or any Subcustodian shall be delivered to
the successor custodian, and the Custodian agrees to cooperate
with the Fund in execution of documents and performance of other
actions necessary or desirable in order to substitute the
successor custodian for the Custodian under this Agreement.
9. This Agreement constitutes the entire understanding and
agreement of the parties hereto with respect to the subject
matter hereof. No provision of this Agreement may be amended or
- 25 -
terminated except by a statement in writing signed by the party
against which enforcement of the amendment or termination is
sought.
In connection with the operation of this Agreement, the
Custodian and the Fund may agree in writing from time to time on
such provisions interpretative of or in addition to the
provisions of this Agreement as may in their joint opinion be
consistent with the general tenor of this Agreement. No
interpretative or additional provisions made as provided in the
preceding sentence shall be deemed to be an amendment of this
Agreement.
10. This instrument is executed and delivered in The
Commonwealth of Massachusetts and shall be governed by and
construed according to the laws of said Commonwealth.
11. Notices and other writings delivered or mailed postage
prepaid to the Fund addressed to the Fund at Xxxxxxx Xxxxx Asset
Management, Inc., 000 Xxxxxxxx Xxxx Xxxx, Xxxxxxxxxx, Xxx Xxxxxx
00000, Mailing address: Xxxx Xxxxxx Xxx 0000, Xxxxxxxxx, Xxx
Xxxxxx 00000, Attention: Xx. Xxxxxx X. Xxxxxxx, Senior Vice
President/Treasurer, or to such other address as the Fund may
have designated to the Custodian in writing, or to the Custodian
at 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention:
Manager, Securities Department, or to such other address as the
Custodian may have designated to the Fund in writing, shall be
deemed to have been properly delivered or given hereunder to the
respective addressee.
- 26 -
12. This Agreement shall be binding on and shall inure to
the benefit of the Fund and the Custodian and their respective
successors and assigns, provided that neither party hereto -may
assign this Agreement or any of its rights or obligations
hereunder without the prior written consent of the other party.
13. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original. This
Agreement shall become effective when one or more counterparts
have been signed and delivered by each of the parties.
IN WITNESS WHEREOF, each of the parties has caused this
Agreement to be executed in its name and behalf on the day and
year first above written.
XXXXXXX XXXXX GLOBAL
ALLOCATION, FUND INC XXXXX BROTHERS XXXXXXXX & CO.
By /s/ Xxxxxx Xxxxxx per pro /s/
-----------------------
- 27 -
XXXXXXX XXXXX GLOBAL ALLOCATION FUND INC
----------------------------------------
APPENDIX A
----------
COUNTRY SUBCUSTODIAN(S) CENTRAL DEPOSITORY
------- -------------- ------------------
AUSTRALIA NATIONAL AUSTRALIA NONE
BANK LIMITED AGMT DTD 5/l/85
AUSTRIA XXXXXX BRUSSELS OEKB-WSB
CREDITANSTALT BANKVEREIN AGMT DTD 6/2/87
BELGIUM XXXXXX BRUSSELS AGMT DTD 2/25/86 CIK
CANADA CANADIAN IMPERIAL BANK CDS
OF COMMERCE AGMT DTD 9/9/88
DENMARK XXXXXX BRUSSELS VP
COPENHAGEN HANDELSBANK AGMT DTD 10/27/87
FINLAND XXXXXX BRUSSELS NONE
UNION BANK OF FINLAND AGMT DTD 4/13/87
FRANCE XXXXXX BRUSSELS AGMT DTD 0/00/00 XXXXXXX
XXXXXX XXXXX
XXXX XXXX CHASE MANHATTAN BANK NONE
HONG KONG AGMT DTD 6/4/79
IRELAND XXXXXX BRUSSELS NONE
ALLIED IRISH BANK AGMT DTD 7/27/87
ITALY XXXXXX BRUSSELS MONTE TITOLI
BANCA COMMERCIALE
ITALIANA AGMT DTD 6/7/86
JAPAN CITIBANK TOKYO AGMT DTD 7/16/81 NONE
MEXICO CITIBANK MEXICO AGMT DTD 7/16/81 NONE
NETHERLANDS XXXXXX BRUSSELS NECIGEF
XXXXXX BANK NEDERLAND AGMT DTD 3/19/86
NEW ZEALAND NATIONAL BANK OF NONE
NEW ZEALAND AGMT DTD 5/13/83
NORWAY XXXXXX BRUSSELS VPS
DEN NORSKE CREDITBANK AGMT DTD 6/2/87
PHILIPPINES CITIBANK MANILA AGMT DTD 7/16/81 NONE
PORTUGAL XXXXXX BRUSSELS NONE
BANCO ESPIRITO SANTO
COMERCIAL DE LISBOA 12/31/87
SINGAPORE CHASE MANHATTAN BANK NONE
(MALAYSIA) SINGAPORE AGMT DTD 6/9/80
SOUTH AFRICA XXXXXX BRUSSELS NONE
FIRST NATL BANK OF
SOUTH AFRICA LTD AGMT DTD 2/lO/86
SPAIN XXXXXX BRUSSELS NONE
BANCO DE SANTANDER AGMT DTD 2/27/86
SWEDEN XXXXXX BRUSSELS VPO
SKANDINAVISKA ENSKILDA
BANKEN AGMT DTD 4/17/87
SWITZERLAND XXXXXX BRUSSELS AGMT DTD 2/25/86 SEGA
XXXXXX ZURICH
THAILAND XXXXXX BRUSSELS NONE
HONGKONG & SHANGHAI
BKG CORP AGMT DTD 3/17/87
TRANSNATIONAL XXXXX BROTHERS XXXXXXXX & CO EUROCLEAR
OR XXXXXX BRUSSELS
UNITED KINGDOM XXXXXX BRUSSELS AGMT DTD 2/25/86 TALISMAN
XXXXXX LONDON
WEST GERMANY XXXXXX BRUSSELS AGMT DTD 2/25/86 KASSENVEREIN
XXXXXX FRANKFURT
APPROVED ___________________________________ DATE ____________________
