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GLOBAL
CUSTODIAL SERVICES AGREEMENT
WINTERGREEN FUND, INC.
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TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION 1
2. ESTABLISHMENT OF ACCOUNTS 1
3. CUSTODY ACCOUNT PROCEDURES 2
4. CASH ACCOUNT PROCEDURES 2
5. INSTRUCTIONS 3
6. PERFORMANCE BY THE CUSTODIAN 3
7. TAX STATUS/WITHHOLDING TAXES 4
8. USE OF THIRD PARTIES 5
9. REPRESENTATIONS 5
10. SCOPE OF RESPONSIBILITY 6
11 SUBROGATION 7
12. INDEMNITY 7
13. LIEN AND SET OFF 7
14. FEES AND EXPENSES 8
15. CITIGROUP ORGANISATION INVOLVEMENT 8
16. RECORDS AND ACCESS 8
17. INFORMATION 8
18. ADVERTISING 8
19. TERMINATION. 9
20. GOVERNING LAW AND JURISDICTION 9
21. MISCELLANEOUS 9
SIGNATURES 10
SCHEDULES:
o United Kingdom Schedule
o Fee Schedule
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THIS GLOBAL CUSTODIAL SERVICES AGREEMENT is made on ___________________, 20___,
by and between ____________________________ a ______________________________
organized under the laws of ____________________________, (the "CLIENT ") and
Citibank, N.A. acting through its offices located in
______________________________ (the "CUSTODIAN").
WHEREAS, the Custodian represents to the Client that it is eligible to serve as
a custodian for a management investment company registered under the Investment
Company Act of 1940, as amended (the "1940 Act"), and
WHEREAS, the Client is a management investment company registered under the 1940
Act, and
WHEREAS, the Client wishes to appoint the Custodian as the custodian for the
Funds,
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the parties agree as follows:
1. DEFINITIONS AND INTERPRETATION
(A) DEFINITIONS.
"AUTHORIZED PERSON" means the Client or any person (including any
individual or entity) authorized by the Client to act on its behalf in
the performance of any act, discretion or duty under this Agreement
(including, for the avoidance of doubt, any officer or employee of such
person) in a notice reasonably acceptable to the Custodian.
"CASH" means all cash or cash equivalents in any currency received and held
on the terms of this Agreement.
"CITIGROUP ORGANIZATION" means Citigroup, Inc. and any company or other
entity of which Citigroup, Inc. is directly or indirectly a shareholder
or owner. For purposes of this Agreement, each branch of Citibank, N.A.
shall be a separate member of the Citigroup Organization.
"CLEARANCE SYSTEM" means any clearing agency, settlement system or
depository (including any entity that acts as a system for the central
handling of Securities in the country where it is incorporated or
organized or that acts as a transnational system for the central handling
of Securities) used in connection with transactions relating to
Securities and any nominee of the foregoing.
"FEE SCHEDULE" means the schedule referred to in Section 14, as annexed
hereto.
"INSTRUCTIONS" means any and all instructions (including approvals,
consents and notices) received by the Custodian from, or reasonably
believed by the Custodian to be from, any Authorized Person, including
any instructions communicated through any manual or electronic medium or
system agreed between the Client and the Custodian.
"SECURITIES" means any financial asset (other than Cash) from time to
time held for the Client on the terms of this Agreement.
"TAXES" means all taxes, levies, imposts, charges, assessments,
deductions, withholdings and related liabilities, including additions to
tax, penalties and interest imposed on or in respect of (i) Securities or
Cash, (ii) the transactions effected under this Agreement or (iii) the
Client; provided that "Taxes" does not include income or franchise taxes
imposed on or measured by the net income of the Custodian or its agents.
(B) INTERPRETATION.
References in this Agreement to schedules shall be deemed to be
references to schedules, the terms of which shall be incorporated into
and form part of this Agreement.
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2. ESTABLISHMENT OF ACCOUNTS
(A) ACCOUNTS. The Client authorizes the Custodian to establish on its books,
pursuant to the terms of this Agreement, (i) a custody account or
accounts (the "Custody Account") and (ii) a cash account or accounts (the
"Cash Account"). The Custody Account will be a custody account for the
receipt, safekeeping and maintenance of Securities, and the Cash Account
will be a current account for Cash.
(B) ACCEPTANCE OF SECURITIES AND CASH. The Custodian will determine in its
reasonable discretion whether to accept (i) for custody in the Custody
Account, Securities of any kind and (ii) for deposit in the Cash Account,
Cash in any currency.
(C) DESIGNATION OF ACCOUNTS.
(i) The Custody Account will be in the name of the Client or such other name
as the Client may reasonably designate and will indicate that Securities
do not belong to the Custodian and are segregated from the Custodian's
assets.
(ii) The Cash Account will be in the name of the Client or such other name as
the Client may reasonably designate and will be held by the Custodian as
banker.
(D) SEGREGATION.
(i) To the extent reasonably practicable, the Custodian will hold Securities
with a sub custodian only in an account which holds exclusively assets
held by the Custodian for its customers. The Custodian will direct each
sub custodian to identify on its books that Securities are held for the
account of the Custodian as custodian for its customers. The Custodian
will direct each sub custodian, to the extent practicable, to hold
Securities in a Clearance System only in an account of the sub custodian
which holds exclusively assets held by the sub custodian for its
customers.
(ii) Any Securities deposited by the Custodian with a sub custodian will be
subject only to the instructions of the Custodian, and any Securities
held in a Clearance System for the account of a sub custodian will be
subject only to the instructions of the sub custodian.
(iii) The Custodian shall require the sub custodian to agree that Securities
will not be subject to any right, charge, security interest, lien or
claim of any kind in favor of the sub custodian.
3. CUSTODY ACCOUNT PROCEDURES
(A) CREDITS TO THE CUSTODY ACCOUNT. The Custodian is not obligated to credit
Securities to the Custody Account before receipt of such Securities by
final settlement.
(B) DEBITS TO THE CUSTODY ACCOUNT. If the Custodian has received Instructions
that would result in the delivery of Securities exceeding credits to the
Custody Account for that Security, the Custodian may reject the
Instructions or may decide which deliveries it will make (in whole or in
part and in the order it selects).
(C) DENOMINATION OF SECURITIES. The Client shall bear the risk and expense
associated with investing in Securities denominated in any currency.
4. CASH ACCOUNT PROCEDURES
(A) CREDITS AND DEBITS TO THE CASH ACCOUNT. The Custodian is not obliged to
make a credit or debit to the Cash Account before receipt by the
Custodian of a corresponding and final payment in cleared funds. If the
Custodian makes a credit or debit before such receipt, the Custodian may
at any time reverse all or
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part of the credit or debit (including any interest thereon), make an
appropriate entry to the Cash Account, and if it reasonably so decides,
require repayment of any amount corresponding to any debit.
(B) DEBIT BALANCES IN THE CASH ACCOUNT. The Custodian is not obliged to make
any debit to the Cash Account which might result in or increase a debit
balance. The Custodian may make any debit to the Cash Account even if
this results in (or increases) a debit balance. If the total amount of
debits to the Cash Account at any time would otherwise result in a debit
balance or exceed the immediately available funds credited to the Cash
Account, the Custodian may decide which debits it will make (in whole or
in part and in the order it selects).
(C) PAYMENTS. The Custodian may at any time cancel any extension of credit.
The Client will transfer to the Custodian on closure of the Cash Account
and otherwise on demand from the Custodian sufficient immediately
available funds to cover any debit balance on the Cash Account or any
other extension of credit and any interest, fees and other amounts owed.
(D) FOREIGN CURRENCY RISKS. The Client shall bear the risk and expense
associated with Cash denominated in any currency.
5. INSTRUCTIONS
The Custodian is entitled to rely and act upon Instructions of any
Authorized Person until the Custodian has received notice of any change
from the Client and has had a reasonable time to note and implement such
change. The Custodian is authorized to rely upon any Instructions
received by any means, provided that the Custodian and the Client have
agreed upon the means of transmission and the method of identification
for the Instructions. In particular:
(i) The Client and the Custodian will comply with security procedures
designed to verify the origination of Instructions.
(ii) The Custodian is not responsible for errors or omissions made by the
Client or resulting from fraud or the duplication of any Instruction by
the Client, and the Custodian may act on any Instruction by reference to
an account number only, even if any account name is provided.
(iii) The Custodian may act on an Instruction if it reasonably believes it
contains sufficient information.
(iv) The Custodian may decide not to act on an Instruction where it reasonably
doubts its contents, authorization, origination or compliance with any
security procedures and will promptly notify the Client of its decision.
(v) If the Custodian acts on any Instruction sent manually (including
facsimile or telephone), then, if the Custodian complies with the
security procedures, the Client will be responsible for any loss the
Custodian may incur in connection with that Instruction. The Client
expressly acknowledges that the Client is aware that the use of manual
forms of communication to convey Instructions increases the risk of
error, security and privacy issues and fraudulent activities.
(vi) Instructions are to be given in the English language.
(vii) The Custodian is obligated to act on Instructions only within applicable
cut-off times on banking days when the Custodian and the applicable
financial markets are open for business.
(viii) In some securities markets, securities deliveries and payments therefore
may not be or are not customarily made simultaneously. Accordingly,
notwithstanding the Client's Instruction to deliver Securities against
payment or to pay for Securities against delivery, the Custodian may make
or accept payment for or delivery of Securities at such time and in such
form and manner as is in accordance with relevant local law and practice
or with the customs prevailing in the relevant market.
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6. PERFORMANCE BY THE CUSTODIAN
(A) CUSTODIAL DUTIES REQUIRING INSTRUCTIONS. The Custodian shall carry out
the following actions only upon receipt of and in accordance with
specific Instructions:
(i) make payment for and/or receive any Securities or deliver or dispose of
any Securities except as otherwise specifically provided for in this
Agreement;
(ii) deal with rights, conversions, options, warrants and other similar
interests or any other discretionary right in connection with Securities;
and
(iii) carry out any action affecting Securities or the Custody Account or Cash
or the Cash Account other than those specified in Section 6(B) below, but
in each instance subject to the agreement of the Custodian.
(B) NON-DISCRETIONARY CUSTODIAL DUTIES. Absent a contrary Instruction, the
Custodian shall carry out the following without further Instructions:
(i) in the Client's name or on its behalf, sign any affidavits, certificates
of ownership and other certificates and documents relating to Securities
which may be required (i) to obtain any Securities or Cash or (ii) by any
tax or regulatory authority;
(ii) collect, receive, and/or credit the Custody Account or Cash Account, as
appropriate, with all income, payments and distributions in respect of
Securities and any capital arising out of or in connection with
Securities (including all Securities received by the Custodian as a
result of a stock dividend, bonus issue, share sub-division or
reorganization, capitalization of reserves or otherwise) and take any
action necessary and proper in connection therewith;
(iii) exchange interim or temporary receipts for definitive certificates, and
old or overstamped certificates for new certificates;
(iv) notify the Client of notices, circulars, reports and announcements which
the Custodian has received, in the course of acting in the capacity of
custodian, concerning Securities held on the Client's behalf that require
discretionary action;
(v) make any payment by debiting the Cash Account or any other designated
account of the Client with the Custodian as required to effect any
Instruction; and
(vi) attend to all non-discretionary matters in connection with anything
provided in this Section 6(B) or any Instruction.
7. TAX STATUS/WITHHOLDING TAXES
(A) INFORMATION. The Client will provide the Custodian, from time to time and
in a timely manner, with information and proof (copies or originals) as
the Custodian reasonably requests, as to the Client's and/or the
underlying beneficial owner's tax status or residence. Information and
proof may include, as appropriate, executing certificates, making
representations and warranties, or providing other information or
documents in respect of Securities, as the Custodian deems necessary or
proper to fulfill obligations under applicable law.
(B) PAYMENT. If any Taxes become payable with respect to any payment to be
made to the Client, such Taxes will be payable by the Client and the
Custodian may withhold the Taxes from such payment. The Custodian may
withhold any Cash held or received with respect to the Cash Account and
apply such Cash in satisfaction of such Taxes. If any Taxes become
payable with respect to any prior payment made to the Client by the
Custodian, the Custodian may withhold any Cash in satisfaction of such
prior Taxes. The Client shall remain liable for any deficiency.
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(C) TAX RELIEF. In the event the Client requests that the Custodian provide tax
relief services and the Custodian agrees to provide such services, the
Custodian shall apply for appropriate tax relief (either by way of reduced
tax rates at the time of an income payment or retrospective tax reclaims in
certain markets as agreed from time to time); provided the Client provides
to the Custodian such documentation and information as to it or its
underlying beneficial owner clients as is necessary to secure such tax
relief. However, in no event shall the Custodian be responsible, or liable,
for any Taxes resulting from the inability to secure tax relief, or for the
failure of any Client or beneficial owner to obtain the benefit of credits,
on the basis of foreign taxes withheld, against any income tax liability.
8. USE OF THIRD PARTIES
(A) GENERAL AUTHORITY.
(i) The Custodian is hereby authorised to appoint sub custodians and
administrative support providers as its delegates and to use or
participate in market infrastructures and Clearance Systems to perform
any of the duties of the Custodian under this Agreement.
(ii) Sub custodians are those persons utilized by the Custodian for the
safe-keeping, clearance and settlement of Securities.
(iii) Administrative support providers are those persons utilized by the
Custodian to perform ancillary services of a purely administrative nature
such as couriers, messengers or other commercial transport systems.
(iv) Market infrastructures are public utilities, external telecommunications
facilities and other common carriers of electronic and other messages,
and external postal services. Market infrastructures are not delegates of
the Custodian.
(v) Securities deposited with Clearance Systems hereunder will be subject to
the laws, rules, statements of principle and practices of such Clearance
Systems. Clearance Systems are not delegates of the Custodian.
(B) RESPONSIBILITY.
(i) The Custodian shall act in good faith and use reasonable care in the
selection and continued appointment of subcustodians and administrative
support providers.
(ii) The Custodian may deposit or procure the deposit of Securities with any
Clearance System as required by law, regulation or best market practice.
The Custodian has no responsibility for selection or appointment of, or
for performance by, any Clearance System or market infrastructure.
(iii) The Custodian agrees that any subcustodian will be a bank as defined in
Section 2(a)(5) of the 1940 Act meeting the requirements of a custodian
under Section 17(f) of the 1940 Act or a "Qualified Foreign Bank" meeting
the requirements of an "Eligible Foreign Custodian" as specified in Rule
17f-5 under the 1940 Act. With regard to each Eligible Foreign Custodian,
the Custodian agrees to accept the responsibility it would have assumed
if it had been delegated responsibility to serve as the Fund's "Foreign
Custody Manager" as defined in Rule 17f-5(a)(3) under the 1940 Act, in
respect to the Client's foreign investments held from time to time by the
Custodian with any subcustodian that is an Eligible Foreign Custodian.
Foreign investments are any Securities for which the primary market is
outside the United States of America.
In regard to each selection and appointment of a subcustodian that is an
Eligible Foreign Custodian, the Custodian shall:
(1) select the Eligible Foreign Custodian to serve as foreign
custodian and place and maintain the Fund's foreign
investments with respect to the relevant market with such
foreign custodian;
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(2) in selecting an Eligible Foreign Custodian, first determine
that foreign investments placed and maintained in the
safekeeping of the Eligible Foreign Custodian shall be subject
to reasonable care, based on the standards applicable to
custodians in the relevant market, after having considered all
factors relevant to the safekeeping of such investments
including, without limitation, those factors set forth in Rule
17f-5;
(3) enter into written agreements with the Eligible Foreign
Custodian selected by the Custodian hereunder;
(4) determine that the written contract with the Eligible Foreign
Custodian requires that the Eligible Foreign Custodian will
provide reasonable care for the foreign investments, based on
the standards applicable to custodians in the relevant market,
and that all such contracts, rules, practices and procedures
satisfy the requirements of Rule 17f-5;
(5) provide written reports (x) notifying the Client of the
placement of foreign investments with the Eligible Foreign
Custodian, such reports to be provided at such time as the
Client deems reasonable and appropriate, but not less than
quarterly, and (y) promptly notifying the Client of the
occurrence of any material change in the arrangements with the
Eligible Foreign Custodian; and
(6) monitor the continued appropriateness of (x) maintaining the
foreign investments with the Eligible Foreign Custodian
selected hereunder and (y) the governing contractual
arrangement; it being understood, however, that in the event
the Custodian shall determine that the Eligible Foreign
Custodian would no longer afford the foreign investments
reasonable care, the Custodian shall promptly so advise the
Client and shall then act in accordance with Instructions (as
defined in the Agreement) with respect to the disposition of
the foreign investments; and
Nothing in this paragraph shall relieve the Custodian of any
responsibility otherwise provided in the Agreement for loss or damage
suffered by the Client or the Fund from an act of negligence or willful
misconduct on the part of the Custodian.
Nothing in this Agreement shall require the Custodian to make any
selection that would entail consideration of any factor reasonably
related to the systemic risk of holding assets in a particular country
including, but not limited to, such country's financial infrastructure
and prevailing settlement practices. The Custodian agrees to provide to
the Client such information relating to such risk as the Client shall
reasonably request from time to time and such other information as the
Custodian generally makes available to customers with regard to such
countries and risk.
(iv) The Custodian agrees that in connection with Securities settled within the
United States it will meet the requirements specified in Rule 17f-4 under
the 1940 Act with respect to the use of Clearance Systems. The Custodian
may deposit and/or maintain assets of the Fund that consist of foreign
investments only in a Clearance System located outside of the United States
of America that the Custodian has determined satisfies the requirements of
Rule 17f-7(b)(1) as an Eligible Securities Depository, as defined therein.
In such manner as the Custodian deems reasonable, the Custodian shall give
the Client prompt notice of any material change known to the Custodian that
would adversely effect the Custodian's determination that a Clearance
System is an Eligible Securities Depository. The Custodian shall provide
the Client with an analysis (in form and substance as reasonably determined
by the Custodian) of the custody risks associated with maintaining
securities with each Eligible Securities Depository in accordance with Rule
17f-7. The Custodian shall monitor such custody risks on a continuing basis
and in such manner as the Custodian deems reasonable and shall promptly
notify the Client of any adverse material changes in such risks in
accordance with Rule.
(1) In performing its obligations under this Section 8(B)(iv), the Custodian
may obtain information from sources the Custodian believes to be reliable,
but the Custodian does not warrant its completeness or accuracy and has no
duty to verify or confirm any such information. The Custodian is not
obligated to make any determination regarding whether any Eligible
Securities Depository provides reasonable care for foreign investments or
to provide any
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information or evaluation comparing any Eligible Securities Depository to
any other Clearance System or any existing or proposed standards for
securities depositories.
(2) Upon the receipt of Instructions, the Custodian shall withdraw securities
from any Clearance System to the extent and as soon as reasonably
practicable; provided, however, the Custodian shall have no obligation to
obtain, safekeep or provide any services in respect of any certificated
or physical security in any jurisdiction where the Custodian does not
offer or provide such services generally to customers within that
jurisdiction.
(C) SHAREHOLDERS VOTING. The Custodian's only obligation in regard to any
matter where the Client may exercise shareholder voting rights will be to
provide shareholder voting services as specified in a separate proxy
services letter between the Custodian and the Client.
9. REPRESENTATIONS
(A) GENERAL. The Client and the Custodian each represents at the date this
Agreement is entered into and any custodial service is used or provided
that:
(i) It is duly organized and in good standing in every jurisdiction where it
is required so to be;
(ii) It has the power and authority to sign and to perform its obligations
under this Agreement;
(iii) This Agreement is duly authorized and signed and is its legal, valid and
binding obligation;
(iv) Any consent, authorization or instruction required in connection with its
execution and performance of this Agreement has been provided by any
relevant third party;
(v) Any act required by any relevant governmental or other authority to be
done in connection with its execution and performance of this Agreement
has been or will be done (and will be renewed if necessary); and
(vi) Its performance of this Agreement will not violate or breach any
applicable law, regulation, contract or other requirement.
(B) CLIENT. The Client also represents at the date this Agreement is entered
into and any custodial service is used or provided that:
(i) It has authority to deposit the Securities received in the Custody
Account and the Cash in the Cash Account and there is no claim or
encumbrance that adversely affects any delivery of Securities or payment
of Cash made in accordance with this Agreement;
(ii) Where it acts as an agent on behalf of any of its own customers, whether
or not expressly identified to the Custodian from time to time, any such
customers shall not be customers or indirect customers of the Custodian;
and
(iii) It has not relied on any oral or written representation made by the
Custodian or any person on its behalf.
10. SCOPE OF RESPONSIBILITY
(A) STANDARD OF CARE. The Custodian shall exercise the due care of a
professional custodian for hire.
(B) LIMITATIONS ON LOSSES. The Custodian will not be responsible for any loss
or damage suffered by the Client unless the loss or damage results from the
Custodian's negligence, wilful misconduct or fraud or the negligence,
wilful misconduct or fraud of its subcustodians or nominees; in the event
of such
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negligence or wilful misconduct the liability of the Custodian in
connection with the loss or damage will not exceed (i) the lesser of
replacement of any Securities or the market value of the Securities to
which such loss or damage relates at the time the Client reasonably should
have been aware of such negligence or wilful misconduct and (ii)
replacement of Cash, plus (iii) compensatory interest up to that time at
the rate applicable to the base currency of the Cash Account. Under no
circumstances will the Custodian be liable to the Client for consequential
loss or damage, even if advised of the possibility of such loss or damage.
(C) LIMITATIONS ON THE CUSTODIAN'S RESPONSIBILITY.
(i) GENERAL. The Custodian is responsible for the performance of only those
duties as are expressly set forth herein, including the performance of
any Instruction given in accordance with this Agreement. The Custodian
shall have no implied duties or obligations.
(ii) SOLE OBLIGATIONS OF THE CUSTODIAN. The Client understands and agrees that
(i) the obligations and duties of the Custodian will be performed only by
the Custodian and are not obligations or duties of any other member of
the Citigroup Organization (including any branch or office of the
Custodian) and (ii) the rights of the Client with respect to the
Custodian extend only to such Custodian and, except as provided by law,
do not extend to any other member of the Citigroup Organization.
(iii) NO LIABILITY FOR THIRD PARTIES. Except as provided in Section 8 hereof,
the Custodian is not responsible for the acts, omissions, defaults or
insolvency of any third party including, but not limited to, any broker,
counterparty or issuer of Securities.
(IV) PERFORMANCE SUBJECT TO LAWS. The Client understands and agrees that the
Custodian's performance of this Agreement is subject to the relevant
local laws, regulations, decrees, orders and government acts, and the
rules, operating procedures and practices of any relevant stock exchange,
Clearance System or market where or through which Instructions are to be
carried out and to which the Custodian is subject and as exist in the
country in which any Securities or Cash are held.
(v) PREVENTION OF PERFORMANCE. The Custodian will not be responsible for any
failure to perform any of its obligations (nor will it be responsible for
any unavailability of funds credited to the Cash Account) if such
performance is prevented, hindered or delayed by a Force Major Event, in
such case its obligations will be suspended for so long as the Force Major
Event continues. "Force Major Event" means any event due to any cause
beyond the reasonable control of the Custodian, such as restrictions on
convertibility or transferability, requisitions, involuntary transfers,
unavailability of communications system, sabotage, fire, flood, explosion,
acts of God, civil commotion, strikes or industrial action of any kind,
riots, insurrection, war or acts of government.
(vi) CLIENT'S REPORTING OBLIGATIONS. The Client shall be solely responsible
for all filings, tax returns and reports on any transactions in respect
of Securities or Cash or relating to Securities or Cash as may be
required by any relevant authority, whether governmental or otherwise.
(vii) VALIDITY OF SECURITIES. The Custodian shall exercise reasonable care in
receiving Securities but does not warrant or guarantee the form,
authenticity, value or validity of any Security received by the
Custodian. If the Custodian becomes aware of any defect in title or
forgery of any Security, the Custodian shall promptly notify the Client.
(viii) CAPACITY OF CUSTODIAN. The Custodian is not acting under this Agreement
as an investment manager, nor as an investment, legal or tax adviser to
the Client, and the Custodian's duty is solely to act as a Custodian in
accordance with the terms of this Agreement.
(ix) FORWARDED INFORMATION. The Custodian is not responsible for the form,
accuracy or content of any notice, circular, report, announcement or
other material provided under Section 6(B)(iv) of this Agreement not
prepared by the Custodian including the accuracy or completeness of any
translation provided by the Custodian in regard to such forwarded
communication.
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11. SUBROGATION
To the extent permissible by law or regulation and upon the Client's
request, the Client shall be subrogated to the rights of the Custodian
with respect to any claim for any loss, damage or claim suffered by the
Client, in each case to the extent that the Custodian fails to pursue any
such claim or the Client is not made whole in respect of such loss,
damage or claim. Notwithstanding any other provision hereof, in no event
is the Custodian obliged to bring suit in its own name or to allow suit
to be brought in its name.
12. INDEMNITY
(A) INDEMNITY TO THE CUSTODIAN. The Client agrees to indemnify the Custodian
and to defend and hold the Custodian harmless from all losses, costs,
damages and expenses (including reasonable legal fees) and liabilities
for any claims, demands or actions (each referred to as a "Loss"),
incurred by the Custodian in connection with this Agreement, except any
Loss resulting from the Custodian's negligence, wilful misconduct or
fraud. Under no circumstances will the Client be liable to the Custodian
for consequential loss or damage, even if advised of the possibility of
such loss or damage.
CLIENT'S DIRECT LIABILITY. The disclosure by the Client to the Custodian that
the Client has entered into this Agreement as the agent or representative
of another person shall not relieve the Client of any of its obligations
under this Agreement.
(C) CUSTODIAN'S DIRECT LIABILITY Subject to Section 8(B)(i), the appointment
by the Custodian of subcustodians, administrative support providers and
other service providers, and the delegation by the Custodian of its
obligations hereunder, shall not relieve the Custodian of any of its
obligations or liabilities under this Agreement.
13. LIEN AND SET OFF
(A) LIEN. The Custodian shall have no lien or security interest in the
Custody Account or the Securities except that the Client hereby grants a
lien against the Custody Account and the security entitlements credited
to the Custody Account to the extent (i) of the Custodian's
administration expenses and fees and (ii) the Custodian creates any
obligation in regard to the Cash Account in connection with the payment
for any Security received for the Custody Account upon Client's
Instructions or that results from any reversal of a provisional credit
given to the Client in connection with any receipt of cash to be received
from a distribution in regard to any Security or delivery of any
Security.
(B) SET OFF. To the extent permitted by applicable law, the Custodian may,
with prior notice to the Client, set off any payment obligation owed to
it by the Client in connection with any debit to the Client's Cash
Account or in regard to any obligation of the Client for the Custodian's
administration expenses and fees against any payment obligation owed by
the Custodian to the Client in connection with the Cash Account.
14. FEES AND EXPENSES
The Client agrees to pay all fees, charges and obligations incurred from
time to time for any services pursuant to this Agreement as determined in
accordance with the terms of the Fee Schedule, which may be changed from
time to time by the Custodian upon prior written notice to the Client,
together with any other amounts payable to the Custodian under this
Agreement. The Custodian may debit the Cash Account to pay any such fees,
charges and obligations.
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15. CITIGROUP ORGANISATION INVOLVEMENT
The Client agrees and understands that any member of the Citigroup
Organization can engage as principal or otherwise in any transaction
effected by the Client or by any person for its account and benefit, or
by or on behalf of any counterparty or issuer. When instructed to effect
any transactions (particularly foreign exchange transactions), the
Custodian is entitled to effect any transaction by or with itself or any
member of the Citigroup Organization and to pay or keep any fee,
commissions or compensation as specified in the Client's Instruction or,
if no specification is provided, any charges, fees, commissions or
similar payments generally in effect from time to time with regard to
such or similar transactions.
16. RECORDS AND ACCESS
(A) EXAMINATION OF STATEMENTS. The Client shall examine each statement sent
by the Custodian and notify the Custodian in writing within sixty (60)
days of the date of such statement of any discrepancy between
Instructions given by the Client and the position shown on the statement
and of any other errors known to the Client. Absent such notification,
the Custodian's liability for any loss or damage in regard to such
discrepancy or errors shall not accrue beyond such sixty (60) days.
(B) ACCESS TO RECORDS. The Custodian shall allow the Client and its
independent public accountants, agents or regulators reasonable access to
the records of the Custodian relating to Securities or Cash as is
required by the Client in connection with an examination of the books and
records pertaining to the affairs of the Client and will seek to obtain
such access from each sub custodian and Clearance System.
17. INFORMATION
The Custodian will treat information related to the Client as
confidential but, unless prohibited by law, the Client authorizes the
transfer or disclosure of any information relating to the Client to and
between the branches, subsidiaries, representative offices, affiliates
and agents of the Custodian and third parties selected by any of them,
wherever situated, for confidential use in connection with the provision
of services to the Client (including for data processing, statistical and
risk analysis purposes), and further acknowledges that any such branch,
subsidiary, representative office, affiliate, agent or third party may
transfer or disclose any such information as required by any law, court,
regulator or legal process.
The Client will treat the terms of this Agreement, including any Fee
Schedule, as confidential.
18. ADVERTISING
Neither the Client nor the Custodian shall display the name, trade xxxx
or service xxxx of the other without the prior written approval of the
other, nor will the Client display that of Citigroup, Inc. or any
subsidiary of Citigroup, Inc. without prior written approval from
Citigroup, Inc. or the subsidiary concerned. The Client shall not
advertise or promote any service provided by the Custodian without the
Custodian's prior written consent.
19. TERMINATION
(A) DATE OF TERMINATION. Any party may terminate this Agreement in whole or
as between itself and the other parties hereto by giving not less than
ninety (90) days' prior written notice to such other parties.
(B) EFFECT ON PROPERTY. The Custodian shall deliver the Securities and Cash
as instructed by the Client. If by the termination date the Client has
not given instructions to deliver any Securities or Cash, the Custodian
will continue to safekeep such Securities and/or Cash until the Client
provides instructions to effect a free delivery of such. However, the
Custodian will provide no other services as regard to any such Securities
except to collect and hold any cash distributions. Notwithstanding
termination of this
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Agreement or any Instruction, the Custodian may retain sufficient
Securities or Cash to close out or complete any transaction that the
Custodian will be required to settle on the Client's behalf.
(C) SURVIVING TERMS. The rights and obligations contained in Sections 7, 10,
12, 13, 17, 18 and 20 of this Agreement shall survive the termination of
this Agreement.
20. GOVERNING LAW AND JURISDICTION
(A) GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the internal laws (and not the laws of conflicts) of New
York.
(B) JURISDICTION. The courts of the country in which the Custodian is located
and performs its obligations hereunder (including any appropriate
sub-jurisdiction) shall have non-exclusive jurisdiction to hear any
disputes arising out of or in connection with this Agreement, and the
parties irrevocably submit to the jurisdiction of such courts.
(C) VENUE. Each party hereto waives any objection it may have at any time, to
the laying of venue of any actions or proceedings brought in any court
specified in Section 20(B) hereof, waives any claim that such actions or
proceedings have been brought in an inconvenient forum and further waives
the right to object that such court does not have jurisdiction over such
party.
(D) SOVEREIGN IMMUNITY. The Client and the Custodian each irrevocably waives,
with respect to itself and its revenues and assets, all immunity on the
grounds of sovereignty or similar grounds in respect of its obligations
under this Agreement.
21. MISCELLANEOUS
(A) ENTIRE AGREEMENT; AMENDMENTS. This Agreement consists exclusively of this
document together with the schedules. The Custodian may notify the Client
of terms which are applicable to the provision of services in the
location of a particular office and such terms shall be contained in a
schedule and shall supplement this Agreement in relation to that office.
In case of inconsistency with the rest of this Agreement, such terms
shall prevail in relation to that office.
Except as specified in this Agreement, this Agreement may only be
modified by written agreement of the Client and the Custodian.
(B) SEVERABILITY. If any provision of this Agreement is or becomes illegal,
invalid or unenforceable under any applicable law, the remaining
provisions shall remain in full force and effect (as shall that provision
under any other law).
(C) WAIVER OF RIGHTS. No failure or delay of the Client or the Custodian in
exercising any right or remedy under this Agreement shall constitute a
waiver of that right. Any waiver of any right will be limited to the
specific instance. The exclusion or omission of any provision or term
from this Agreement shall not be deemed to be a waiver of any right or
remedy the Client or the Custodian may have under applicable law.
(D) RECORDINGS. The Client and the Custodian consent to telephonic or
electronic recordings for security and quality of service purposes and
agree that either may produce telephonic or electronic recordings or
computer records as evidence in any proceedings brought in connection
with this Agreement.
(E) FURTHER INFORMATION. The Client agrees to execute further documents and
provide materials and information as may be reasonably requested by the
Custodian to enable it to perform its duties and obligations under this
Agreement.
(F) ASSIGNMENT. No party may assign or transfer any of its rights or
obligations under this Agreement without the other's prior written
consent, which consent will not be unreasonably withheld or delayed;
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provided that the Custodian may make such assignment or transfer to a
branch, subsidiary or affiliate if it does not materially affect the
provision of services to the Client.
(G) HEADINGS. Titles to Sections of this Agreement are included for
convenience of reference only and shall be disregarded in construing the
language contained in this Agreement.
(H) COUNTERPARTS. This Agreement may be executed in several counterparts,
each of which shall be an original, but all of which together shall
constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective officers thereunto duly authorized.
CITIBANK, N.A. WINTERGREEN FUND, INC.
By: By:
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Name: Name:
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Title: Title:
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By:
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Name:
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Title:
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