1
GLOBAL CUSTODY AGREEMENT
This AGREEMENT is effective ___________________,
1999, and is between THE CHASE MANHATTAN BANK ("Bank")
FIRSTAR Bank, Milwaukee, N.A. and _______________ ("Customer").
1. Customer Accounts.
Bank, acting as "Securities Intermediary" (as
defined in Section 15(g) hereof) shall establish and
maintain the following accounts ("Accounts"):
(a) a Custody Account (as defined in Section
15(b) hereof) in the name of Customer for Financial
Assets, which shall, except as modified by Section
15(d) hereof, mean stocks, shares, bonds, debentures,
notes, mortgages or other obligations for the payment
of money, bullion, coin and any certificates, receipts,
warrants or other instruments representing rights to
receive, purchase or subscribe for the same or
evidencing or representing any other rights or
interests therein and other similar property whether
certificated or uncertificated as may be received by
Bank or its Subcustodian (as defined in Section 3
hereof) for the account of Customer, including as an
"Entitlement Holder" as defined in Section 15(c)
hereof); and
(b) an account in the name of Customer ("Deposit
Account") for any and all cash in any currency received
by Bank or its Subcustodian for the account of
Customer, which cash shall not be subject to withdrawal
by draft or check.
Customer warrants its authority to: 1) deposit the
cash and Financial Assets (collectively "Assets")
received in the Accounts and 2) give Instructions (as
defined in Section 11 hereof) concerning the Accounts.
Bank may deliver Financial Assets of the same class in
place of those deposited in the Custody Account.
Upon written agreement between Bank and Customer,
additional Accounts may be established and separately
accounted for as additional Accounts hereunder.
2. Maintenance of Financial Assets and Cash at Bank
and Subcustodian Locations.
Unless Instructions specifically require another
location acceptable to Bank:
(a) Financial Assets shall be held in the country
or other jurisdiction in which the principal trading
market for such Financial Assets is located, where such
Financial Assets are to be presented for payment or
where such Financial Assets are acquired; and
(b) Cash shall be credited to an account in a
country or other jurisdiction in which such cash may be
legally deposited or is the legal currency for the
payment of public or private debts.
Cash may be held pursuant to Instructions in
either interest or non-interest bearing accounts as may
be available for the particular currency. To the
extent Instructions are issued and Bank can comply with
such Instructions, Bank is authorized to maintain cash
balances on deposit for Customer with itself or one of
its "Affiliates" at such reasonable rates of interest
as may from time to time be paid on such accounts, or
in non-interest bearing accounts as Customer may
direct, if acceptable to Bank. For purposes hereof,
the term "Affiliate" shall mean an entity controlling,
controlled by, or under common control with, Bank.
If Customer wishes to have any of its Assets held
in the custody of an institution other than the
established Subcustodians as defined in Section 3 (or
their securities depositories), such arrangement must
be authorized by a written agreement, signed by Bank
and Customer.
3. Subcustodians and Securities Depositories.
Bank may act hereunder through the subcustodians
listed in Schedule A hereof with which Bank has entered
into subcustodial agreements ("Subcustodians").
Customer authorizes Bank to hold Assets in the Accounts
in accounts which Bank has established with one or more
of its branches or Subcustodians. Bank and
Subcustodians are authorized to hold any of the
Financial Assets in their account with any securities
depository in which they participate.
Bank reserves the right to add new, replace or
remove Subcustodians. Customer shall be given
reasonable notice by Bank of any amendment to Schedule
A. Upon request by Customer, Bank shall identify the
name, address and principal place of business of any
Subcustodian of Customer's Assets and the name and
address of the governmental agency or other regulatory
authority that supervises or regulates such
Subcustodian.
4. Use of Subcustodian.
(a) Bank shall identify the Assets on its books
as belonging to Customer.
(b) A Subcustodian shall hold such Assets
together with assets belonging to other customers of
Bank in accounts identified on such Subcustodian's
books as custody accounts for the exclusive benefit of
customers of Bank.
(c) Any Assets in the Accounts held by a
Subcustodian shall be subject only to the instructions
of Bank or its agent. Any Financial Assets held in a
securities depository for the account of a Subcustodian
shall be subject only to the instructions of such
Subcustodian.
(d) Any agreement Bank enters into with a
Subcustodian for holding Bank's customers' assets shall
provide that such assets shall not be subject to any
right, charge, security interest, lien or claim of any
kind in favor of such Subcustodian except for safe
custody or administration, and that the beneficial
ownership of such assets shall be freely transferable
without the payment of money or value other than for
safe custody or administration, or, in the case of cash
deposits, except for liens or rights in favor of credi
tors of the Subcustodian arising under bankruptcy,
insolvency or similar laws. Where Securities are
deposited by a Subcustodian with a securities
depository, Bank shall cause the Subcustodian to
identify on its books as belonging to Bank, as agent,
the Securities shown on the Subcustodian's account on
the books of such securities depository. The foregoing
shall not apply to the extent of any special agreement
or arrangement made by Customer with any particular
Subcustodian.
5. Deposit Account Transactions.
(a) Bank or its Subcustodians shall make payments
from the Deposit Account upon receipt of Instructions
which include all information required by Bank.
(b) In the event that any payment to be made
under this Section 5 exceeds the funds available in the
Deposit Account, Bank, in its discretion, may advance
Customer such excess amount which shall be deemed a
loan payable on demand, bearing interest at the rate
customarily charged by Bank on similar loans.
(c) If Bank credits the Deposit Account on a
payable date, or at any time prior to actual collection
and reconciliation to the Deposit Account, with
interest, dividends, redemptions or any other amount
due, Customer shall promptly return any such amount
upon oral or written notification: (i) that such amount
has not been received in the ordinary course of
business or (ii) that such amount was incorrectly
credited. If Customer does not promptly return any
amount upon such notification, Bank shall be entitled,
upon oral or written notification to Customer, to
reverse such credit by debiting the Deposit Account for
the amount previously credited. Bank or its
Subcustodian shall have no duty or obligation to
institute legal proceedings, file a claim or a proof of
claim in any insolvency proceeding or take any other
action with respect to the collection of such amount,
but may act for Customer upon Instructions after
consultation with Customer.
6. Custody Account Transactions.
(a) Financial Assets shall be transferred,
exchanged or delivered by Bank or its Subcustodian upon
receipt by Bank of Instructions which include all
information required by Bank. Settlement and payment
for Financial Assets received for, and delivery of
Financial Assets out of, the Custody Account may be
made in accordance with the customary or established
securities trading or securities processing practices
and procedures in the jurisdiction or market in which
the transaction occurs, including, without limitation,
delivery of Financial Assets to a purchaser, dealer or
their agents against a receipt with the expectation of
receiving later payment and free delivery. Delivery of
Financial Assets out of the Custody Account may also be
made in any manner specifically required by
Instructions acceptable to Bank.
(b) Bank, in its discretion, may credit or debit
the Accounts on a contractual settlement date with cash
or Financial Assets with respect to any sale, exchange
or purchase of Financial Assets. Otherwise, such
transactions shall be credited or debited to the
Accounts on the date cash or Financial Assets are
actually received by Bank and reconciled to the
Account.
(i) Bank may reverse credits or debits made
to the Accounts in its discretion if the related
transaction fails to settle within a reasonable
period, determined by Bank in its discretion,
after the contractual settlement date for the
related transaction.
(ii) If any Financial Assets delivered
pursuant to this Section 6 are returned by the
recipient thereof, Bank may reverse the credits
and debits of the particular transaction at any
time.
7. Actions of Bank.
Bank shall follow Instructions received regarding
Assets held in the Accounts. However, until it
receives Instructions to the contrary, Bank shall:
(a) Present for payment any Financial Assets
which are called, redeemed or retired or otherwise
become payable and all coupons and other income items
which call for payment upon presentation, to the extent
that Bank or Subcustodian is actually aware of such
opportunities.
(b) Execute in the name of Customer such
ownership and other certificates as may be required to
obtain payments in respect of Financial Assets.
(c) Exchange interim receipts or temporary
Financial Assets for definitive Financial Assets.
(d) Appoint brokers and agents for any
transaction involving the Financial Assets, including,
without limitation, Affiliates of Bank or any
Subcustodian.
(e) Issue statements to Customer, at times
mutually agreed upon, identifying the Assets in the
Accounts.
Bank shall send Customer an advice or notification
of any transfers of Assets to or from the Accounts.
Such statements, advices or notifications shall
indicate the identity of the entity having custody of
the Assets. Unless Customer sends Bank a written
exception or objection to any Bank statement within
sixty (60) days of receipt, Customer shall be deemed to
have approved such statement. In such event, or where
Customer has otherwise approved any such statement,
Bank shall, to the extent permitted by law, be
released, relieved and discharged with respect to all
matters set forth in such statement or reasonably
implied therefrom as though it had been settled by the
decree of a court of competent jurisdiction in an
action where Customer and all persons having or
claiming an interest in Customer or Customer's Accounts
were parties.
All collections of funds or other property paid or
distributed in respect of Financial Assets in the
Custody Account shall be made at the risk of Customer.
Bank shall have no liability for any loss occasioned by
delay in the actual receipt of notice by Bank or by its
Subcustodians of any payment, redemption or other trans
action regarding Financial Assets in the Custody
Account in respect of which Bank has agreed to take any
action hereunder.
8. Corporate Actions; Proxies; Tax Reclaims.
(a) Corporate Actions. Whenever Bank receives
information concerning the Financial Assets which
requires discretionary action by the beneficial owner
of the Financial Assets (other than a proxy), such as
subscription rights, bonus issues, stock repurchase
plans and rights offerings, or legal notices or other
material intended to be transmitted to securities
holders ("Corporate Actions"), Bank shall give Customer
notice of such Corporate Actions to the extent that
Bank's central corporate actions department has actual
knowledge of a Corporate Action in time to notify its
customers.
When a rights entitlement or a fractional interest
resulting from a rights issue, stock dividend, stock
split or similar Corporate Action is received which
bears an expiration date, Bank shall endeavor to obtain
Instructions from Customer or its Authorized Person (as
defined in Section 10 hereof), but if Instructions are
not received in time for Bank to take timely action, or
actual notice of such Corporate Action was received too
late to seek Instructions, Bank is authorized to sell
such rights entitlement or fractional interest and to
credit the Deposit Account with the proceeds or take
any other action it deems, in good faith, to be appro
priate in which case it shall be held harmless for any
such action.
(b) Proxy Voting. Bank shall provide proxy voting
services, if elected by Customer, in accordance with
the terms of the proxy voting services rider hereto.
Proxy voting services may be provided by Bank or, in
whole or in part, by one or more third parties
appointed by Bank (which may be Affiliates of Bank).
(c) Tax Reclaims.
(i) Subject to the provisions hereof, Bank
shall apply for a reduction of withholding
tax and any refund of any tax paid or tax
credits which apply in each applicable
market in respect of income payments on
Financial Assets for Customer's benefit
which Bank believes may be available to
Customer.
(ii) The provision of tax reclaim services
by Bank is conditional upon Bank's
receiving from Customer or, to the extent
the Financial Assets are beneficially owned
by others, from each beneficial owner, A) a
declaration of the beneficial owner's
identity and place of residence and (B)
certain other documentation (pro forma
copies of which are available from Bank).
Customer acknowledges that, if Bank does
not receive such declarations,
documentation and information Bank shall be
unable to provide tax reclaim services.
(iii) Bank shall not be liable to
Customer or any third party for any taxes,
fines or penalties payable by Bank or
Customer, and shall be indemnified
accordingly, whether these result from the
inaccurate completion of documents by
Customer or any third party, or as a result
of the provision to Bank or any third party
of inaccurate or misleading information or
the withholding of material information by
Customer or any other third party, or as a
result of any delay of any revenue
authority or any other matter beyond Bank's
control.
(iv) Bank shall perform tax reclaim
services only with respect to taxation
levied by the revenue authorities of the
countries notified to Customer from time
to time and Bank may, by notification in
writing, at Bank's absolute discretion,
supplement or amend the markets in which
tax reclaim services are offered. Other
than as expressly provided in this sub-
clause, Bank shall have no responsibility
with regard to Customer's tax position or
status in any jurisdiction.
(v) Customer confirms that Bank is
authorized to disclose any information
requested by any revenue authority or any
governmental body in relation to Customer
or the securities and/or cash held for
Customer.
(vi) Tax reclaim services may be provided
by Bank or, in whole or in part, by one or
more third parties appointed by Bank (which
may be Bank's affiliates); provided that
Bank shall be liable for the performance of
any such third party to the same extent as
Bank would have been if Bank performed such
services.
(d) Tax Obligations.
(i) Customer confirms that Bank is
authorized to deduct from any cash received
or credited to the Deposit Account any
taxes or levies required by any revenue or
governmental authority for whatever reason
in respect of the Custody Account.
(ii) If Bank does not receive appropriate
declarations, documentation and information
that additional United Kingdom taxation
shall be deducted from all income received
in respect of the Financial Assets issued
outside the United Kingdom and any
applicable United States withholding tax
shall be deducted from income received from
the Financial Assets. Customer shall
provide to Bank such documentation and
information as Bank may require in
connection with taxation, and warrants
that, when given, this information shall be
true and correct in every respect, not
misleading in any way, and contain all
material information. Customer undertakes to
notify Bank immediately if any such infor
mation requires updating or amendment.
(iii) Customer shall be responsible for
the payment of all taxes relating to the
Financial Assets in the Custody Account,
and Customer agrees to pay, indemnify and
hold Bank harmless from and against any and
all liabilities, penalties, interest or
additions to tax with respect to or
resulting from, any delay in, or failure
by, Bank (1) to pay, withhold or report any
U.S. federal, state or local taxes or
foreign taxes imposed on, or (2) to report
interest, dividend or other income paid or
credited to the Deposit Account, whether
such failure or delay by Bank to pay,
withhold or report tax or income is the
result of (x) Customer's failure to comply
with the terms of this paragraph, or (y)
Bank's own acts or omissions; provided
however, Customer shall not be liable to
Bank for any penalty or additions to tax
due as a result of Bank's failure to pay,
withhold or report tax or to report
interest, dividend or other income paid or
credited to the Deposit Account solely as a
result of Bank's negligent acts or
omissions.
9. Nominees.
Financial Assets which are ordinarily held in
registered form may be registered in a nominee name of
Bank, Subcustodian or securities depository, as the
case may be. Bank may without notice to Customer cause
any such Financial Assets to cease to be registered in
the name of any such nominee and to be registered in
the name of Customer. In the event that any Financial
Assets registered in a nominee name are called for
partial redemption by the issuer, Bank may allot the
called portion to the respective beneficial holders of
such class of security in any manner Bank deems to be
fair and equitable. Customer shall hold Bank,
Subcustodians, and their respective nominees harmless
from any liability arising directly or indirectly from
their status as a mere record holder of Financial
Assets in the Custody Account.
10. Authorized Persons.
As used herein, the term "Authorized Person" means
employees or agents including investment managers as
have been designated by written notice from Customer or
its designated agent to act on behalf of Customer
hereunder. Such persons shall continue to be
Authorized Persons until such time as Bank receives
Instructions from Customer or its designated agent that
any such employee or agent is no longer an Authorized
Person.
11. Instructions.
The term "Instructions" means instructions of any
Authorized Person received by Bank, via telephone,
telex, facsimile transmission, bank wire or other
teleprocess or electronic instruction or trade
information system acceptable to Bank which Bank
believes in good faith to have been given by Authorized
Persons or which are transmitted with proper testing or
authentication pursuant to terms and conditions which
Bank may specify. Unless otherwise expressly provided,
all Instructions shall continue in full force and
effect until canceled or superseded. The term
"Instructions" includes, without limitation,
instructions to sell, assign, transfer, deliver,
purchase or receive for the Custody Account, any and
all stocks, bonds and other Financial Assets or to
transfer funds in the Deposit Account.)
Any Instructions delivered to Bank by telephone
shall promptly thereafter be confirmed in writing by an
Authorized Person (which confirmation may bear the
facsimile signature of such Person), but Customer shall
hold Bank harmless for the failure of an Authorized
Person to send such confirmation in writing, the
failure of such confirmation to conform to the
telephone instructions received or Bank's failure to
produce such
confirmation at any subsequent time. Bank
may electronically record any Instructions given by
telephone, and any other telephone discussions with
respect to the Custody Account. Customer shall be
responsible for safeguarding any testkeys,
identification codes or other security devices which
Bank shall make available to Customer or its Authorized
Persons.
12. Standard of Care; Liabilities.
(a) Bank shall be responsible for the performance
of only such duties as are set forth herein or
expressly contained in Instructions which are
consistent with the provisions hereof as follows:
(i) Notwithstanding any other provisions of
this Agreement, Bank's responsibilities shall be
limited to the exercise of reasonable care with
respect to its obligations hereunder. Bank shall
only be liable to Customer for any loss which
shall occur as the result of the failure of a
Subcustodian to exercise reasonable care with
respect to the safekeeping of such Assets where
such loss results directly from the failure by the
Subcustodian to use reasonable care in the
provision of custodial services by it in
accordance with the standards prevailing in its
local market or from the willful default of such
Subcustodian in the provision of custodial
services by it. In the event of any loss to
Customer which is compensable hereunder (i.e. a
loss arising by reason of willful misconduct or
the failure of Bank or its Subcustodian to use
reasonable care), Bank shall be liable to Customer
only to the extent of Customer's direct damages,
to be determined based on the market value of the
property which is the subject of the loss at the
date of discovery of such loss and without
reference to any special conditions or
circumstances. Bank shall have no liability
whatsoever for any consequential, special,
indirect or speculative loss or damages
(including, but not limited to, lost profits)
suffered by Customer in connection with the
transactions and services contemplated hereby and
the relationship established hereby even if Bank
has been advised as to the possibility of the same
and regardless of the form of the action.
(ii) Bank shall not be responsible for the
insolvency of any Subcustodian which is not a
branch or Affiliate of Bank. Bank shall not be
responsible for any act, omission, default or the
solvency of any broker or agent which it or a
Subcustodian appoints unless such appointment was
made negligently or in bad faith.
(iii) (A) Customer shall indemnify and
hold Bank and its directors, officers, agents and
employees (collectively the "Indemnitees")
harmless from and against any and all claims,
liabilities, losses, damages, fines, penalties,
and expenses, including out-of-pocket and
incidental expenses and legal fees ("Losses") that
may be imposed on, incurred by, or asserted
against, the Indemnitees or any of them for
following any instructions or other directions
upon which Bank is authorized to rely pursuant to
the terms of this Agreement. (B) In addition to
and not in limitation of the preceding
subparagraph, Customer shall also indemnify and
hold the Indemnitees and each of them harmless
from and against any and all Losses that may be
imposed on, incurred by, or asserted against, the
Indemnitees or any of them in connection with or
arising out of Bank's performance under this
Agreement, provided the Indemnitees have not acted
with negligence or engaged in willful misconduct.
(C) In performing its obligations hereunder, Bank
may rely on the genuineness of any document which
it believes in good faith to have been validly
executed.
(iv) Customer shall pay for and hold Bank
harmless from any liability or loss resulting from
the imposition or assessment of any taxes or other
governmental charges, and any related expenses,
with respect to income from or Assets in the
Accounts.
(v) Bank shall be entitled to rely, and may
act, upon the advice of counsel (who may be
counsel for Customer) on all matters and shall be
without liability for any action reasonably taken
or omitted pursuant to such advice.
(vi) Bank need not maintain any insurance for
the benefit of Customer.
(vii) Without limiting the foregoing,
Bank shall not be liable for any loss which
results from: 1) the general risk of investing,
or 2) investing or holding Assets in a particular
country including, but not limited to, losses
resulting from malfunction, interruption of or
error in the transmission of information caused by
any machines or system or interruption of
communication facilities, abnormal operating
conditions, nationalization, expropriation or
other governmental actions; regulation of the
banking or securities industry; currency
restrictions, devaluations or fluctuations; and
market conditions which prevent the orderly
execution of securities transactions or affect the
value of Assets.
(viii) Neither party shall be liable to
the other for any loss due to forces beyond their
control including, but not limited to strikes or
work stoppages, acts of war (whether declared or
undeclared) or terrorism, insurrection,
revolution, nuclear fusion, fission or radiation,
or acts of God.
(b) Consistent with and without limiting the
first paragraph of this Section 12, it is specifically
acknowledged that Bank shall have no duty or
responsibility to:
(i) question Instructions or make any
suggestions to Customer or an Authorized Person
regarding such Instructions;
(ii) supervise or make recommendations with
respect to investments or the retention of
Financial Assets;
(iii) advise Customer or an Authorized
Person regarding any default in the payment of
principal or income of any security other than as
provided in Section 5(c) hereof;
(iv) evaluate or report to Customer or an
Authorized Person regarding the financial
condition of any broker, agent or other party to
which Financial Assets are delivered or payments
are made pursuant hereto; and
(v) review or reconcile trade confirmations
received from brokers. Customer or its Authorized
Persons issuing Instructions shall bear any
responsibility to review such confirmations
against Instructions issued to and statements
issued by Bank.
(c) Customer authorizes Bank to act hereunder
notwithstanding that Bank or any of its divisions or
Affiliates may have a material interest in a
transaction, or circumstances are such that Bank may
have a potential conflict of duty or interest including
the fact that Bank or any of its Affiliates may provide
brokerage services to other customers, act as financial
advisor to the issuer of Financial Assets, act as a
lender to the issuer of Financial Assets, act in the
same transaction as agent for more than one customer,
have a material interest in the issue of Financial
Assets, or earn profits from any of the activities
listed herein.
13. Fees and Expenses.
Customer shall pay Bank for its services hereunder
the fees set forth in Schedule B hereto or such other
amounts as may be agreed upon in writing, together with
Bank's reasonable out-of-pocket or incidental
expenses, including, but not limited to, legal fees. Bank shall
have a lien on and is authorized to charge any Accounts
of Customer for any amount owing to Bank under any
provision hereof.
14. Miscellaneous.
(a) Foreign Exchange Transactions. To facilitate
the administration of Customer's trading and investment
activity, when instructed by specific or standing
Instruction, Bank is authorized to enter into spot or
forward foreign exchange contracts with Customer or an
Authorized Person for Customer and may also provide
foreign exchange through its subsidiaries, Affiliates
or Subcustodians. Instructions, may be issued with
respect to such contracts but Bank may establish rules
or limitations concerning any foreign exchange facility
made available. In all cases where Bank, its
subsidiaries, Affiliates or Subcustodians enter into a
separate master foreign exchange contract with Customer
that covers foreign exchange transactions for the
Accounts, the terms and conditions of that foreign
exchange contract, and to the extent not inconsistent,
this Agreement, shall apply to such transactions.
(b) Certification of Residency, etc. Customer
certifies that it is a resident of the United States
and shall notify Bank of any changes in residency.
Bank may rely upon this certification or the
certification of such other facts as may be required to
administer Bank's obligations hereunder. Customer
shall indemnify Bank against all losses, liability,
claims or demands arising directly or indirectly from
any such certifications.
(c) Access to Records. Bank shall allow
Customer's independent public accountant reasonable
access to the records of Bank relating to Financial
Assets as is required in connection with their
examination of books and records pertaining to
Customer's affairs. Subject to restrictions under
applicable law, Bank shall also obtain an undertaking
to permit Customer's independent public accountants
reasonable access to the records of any Subcustodian
which has physical possession of any Financial Assets
as may be required in connection with the examination
of Customer's books and records.
(d) Governing Law; Successors and Assigns;
Immunity; Captions THIS AGREEMENT SHALL BE GOVERNED BY
THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED IN NEW YORK and
shall not be assignable by either party, but shall bind
the successors in interest of Customer and Bank. . To
the extent that in any jurisdiction Customer may now or
hereafter be entitled to claim, for itself or its
assets, immunity from suit, execution, attachment
(before or after judgment) or other legal process,
Customer irrevocably shall not claim, and it hereby
waives, such immunity. The captions given to the
sections and subsections of this Agreement are for
convenience of reference only and are not to be used to
interpret this Agreement.
(e) Entire Agreement; Applicable Riders.
Customer represents that the Assets deposited in the
Accounts are (Check one):
Investment Company assets subject to
certain U.S. Securities and Exchange Commission rules
and regulations;
Other (specify)
This Agreement consists exclusively of this
document together with Schedules A and B, Exhibits
I - _______ and the following Rider(s) [Check
applicable rider(s)]:
INVESTMENT COMPANY
__ PROXY VOTING
SPECIAL TERMS AND CONDITIONS
There are no other provisions hereof and this
Agreement supersedes any other agreements, whether
written or oral, between the parties. Any amendment
hereto must be in writing, executed by both parties.
(f) Severability. In the event that one or more
provisions hereof are held invalid, illegal or
unenforceable in any respect on the basis of any
particular circumstances or in any jurisdiction, the
validity, legality and enforceability of such provision
or provisions under other circumstances or in other
jurisdictions and of the remaining provisions shall not
in any way be affected or impaired.
(g) Waiver. Except as otherwise provided herein,
no failure or delay on the part of either party in
exercising any power or right hereunder operates as a
waiver, nor does any single or partial exercise of any
power or right preclude any other or further exercise,
or the exercise of any other power or right. No waiver
by a party of any provision hereof, or waiver of any
breach or default, is effective unless in writing and
signed by the party against whom the waiver is to be
enforced.
(h) Representations and Warranties. (i)
Customer hereby represents and warrants to Bank that:
(A) it has full authority and power to deposit and
control the Financial Assets and cash deposited in the
Accounts; (B) it has all necessary authority to use
Bank as its custodian; (C) this Agreement constitutes
its legal, valid and binding obligation, enforceable
in accordance with its terms; (D) it shall have full
authority and power to borrow moneys and enter into
foreign exchange transactions; and (E) it has not
relied on any oral or written representation made by
Bank or any person on its behalf, and acknowledges
that this Agreement sets out to the fullest extent the
duties of Bank. (ii) Bank hereby represents and
warrants to Customer that: (A) it has the full power
and authority to perform its obligations hereunder,
(B) this Agreement constitutes its legal, valid and
binding obligation, enforceable in accordance with its
terms; and (C) that it has taken all necessary action
to authorize the execution and delivery hereof.
(i) Notices. All notices hereunder shall be
effective when actually received. Any notices or
other communications which may be required hereunder
are to be sent to the parties at the following
addresses or such other addresses as may subsequently
be given to the other party in writing: (a) Bank: The
Chase Manhattan Bank, 4 Chase MetroTech Center,
Brooklyn, N.Y. 11245, Attention: Global Investor
Services, Investment Management Group; and (b)
Customer: ___________________________________________.
(j) Termination. This Agreement may be
terminated by Customer or Bank by giving sixty (60)
days written notice to the other, provided that such
notice to Bank shall specify the names of the persons
to whom Bank shall deliver the Assets in the Accounts.
If notice of termination is given by Bank, Customer
shall, within sixty (60) days following receipt of the
notice, deliver to Bank Instructions specifying the
names of the persons to whom Bank shall deliver the
Assets. In either case Bank shall deliver the Assets
to the persons so specified, after deducting any
amounts which Bank determines in good faith to be owed
to it under Section 13. If within sixty (60) days
following receipt of a notice of termination by Bank,
Bank does not receive Instructions from Customer
specifying the names of the persons to whom Bank shall
deliver the Assets, Bank, at its election, may deliver
the Assets to a bank or trust company doing business in
the State of New York to be held and disposed of
pursuant to the provisions hereof, or to Authorized
Persons, or may continue to hold the Assets until
Instructions are provided to Bank.
(k) Money Laundering. Customer warrants and
undertakes to Bank for itself and its agents that all
Customer's customers are properly identified in
accordance with U.S. Money Laundering Regulations as in
effect from time to time.
(l) Imputation of certain information. Bank
shall not be held responsible for and shall not be
required to have regard to information held by any
person by imputation or information of which Bank is
not aware by virtue of a "Chinese Wall" arrangement.
If Bank becomes aware of confidential information which
in good faith it feels inhibits it from effecting a
transaction hereunder Bank may refrain from effecting
it.
15. Definitions.
As used herein, the following terms shall have the
meaning hereinafter stated:
a) "Certificated Security" shall mean a security
that is represented by a certificate.
b) "Custody Account" shall mean each Securities
custody account on Bank's records to which Financial
Assets are or may be credited pursuant hereto.
c) "Entitlement Holder" shall mean the person on
the records of a Securities Intermediary as the person
having a Securities Entitlement against the Securities
Intermediary.
d) "Financial Asset" shall mean, as the context
requires, either the asset itself or the means by which
a person's claim to it is evidenced, including a
Certificated Security or Uncertificated Security, a
security certificate, or a Securities Entitlement.
e) "Securities" shall mean stocks, bonds, rights,
warrants and other negotiable and non-negotiable paper
whether issued as Certificated Securities or
Uncertificated Securities and commonly traded or dealt
in on securities exchanges or financial markets, and
other obligations of an issuer, or shares,
participations and interests in an issuer recognized in
an area in which it is issued or dealt in as a medium
for investment and any other property as shall be
acceptable to Bank for the Custody Account.
f) "Securities Entitlement" shall mean the rights
and property interest of an Entitlement Holder with
respect to a Financial Asset as set forth in Part 5 of
the Uniform Commercial Code.
g) "Securities Intermediary" shall mean Bank, a
Subcustodian, a securities depository, and any other
financial institution which in the ordinary course of
business maintains custody accounts for others and acts
in that capacity.
h) "Uncertificated Security" shall mean a security
that is not represented by a certificate.
i) "Uniform Commercial Code" shall mean Article 8
of the Uniform Commercial Code of the State of New
York, as the same may be amended from time to time.
IN WITNESS WHEREOF, the parties hereto have
executed this Agreement as of the date first-above
written.
CUSTOMER
By:____________________________________________
Title:
Date:
THE CHASE MANHATTAN BANK
By:____________________________________________
Title:
Date:
FIRSTAR BANK, MILWAUKEE, N.A.
By:____________________________________________
Title:
Date:
STATE OF )
: ss.
COUNTY OF )
On this ___ day of ___, 199_, before me personally came
____________, to me known, who being by me duly sworn, did depose
and say that he/she resides in ____________ at__________________,
that he/she is _____________________ of______________________, the
entity described in and which executed the
foregoing instrument; that he/she knows the seal of
said entity, that the seal affixed to said instrument
is such seal, that it was so affixed by order of said
entity, and that he/she signed his/her name thereto by
like order.
Sworn to before me this ______day of_______, 199_.
Notary
STATE OF NEW YORK )
: ss.
COUNTY OF NEW YORK )
On this ___ day of ______, 199_, before me personally came
____________, to me known, who being by me duly sworn, did depose
and say that he/she resides in ______________ at _______________;
that he/she is a Vice President of THE CHASE
MANHATTAN BANK, the corporation described in and which
executed the foregoing instrument; that he/she knows
the seal of said corporation, that the seal affixed to
said instrument is such corporate seal, that it was so
affixed by order of the Board of Directors of said
corporation, and that he/she signed his/her name
thereto by like order.
Sworn to before me this _______ day of ___________, 199_ .
Notary
Investment Company Rider to Global Custody Agreement
Between The Chase Manhattan Bank and
Firstar Bank, Milwaukee, N.A. and
_________________________________________
effective __________________1999
The following modifications are made to the Agreement:
A. Add a new Section 16 to the Agreement as follows:
"16. Compliance with SEC rule 17f-5.
(a) Customer's board of directors (or equivalent
body) (hereinafter `Board') hereby delegates to Bank,
and, except as to the country or countries as to which
Bank may, from time to time, advise Customer that it
does not accept such delegation, Bank hereby accepts
the delegation to it, of the obligation to perform as
Customer's `Foreign Custody Manager' (as that term is
defined in SEC rule 17f-5(a)(2)), both for the purpose
of selecting Eligible Foreign Custodians (as that term
is defined in SEC rule 17f-5(a)(1), and as the same may
be amended from time to time, or that have otherwise
been made exempt pursuant to an SEC exemptive order) to
hold Financial Assets and Cash and of evaluating the
contractual arrangements with such Eligible Foreign
Custodians (as set forth in SEC rule 17f-5(c)(2));
provided that, the term Eligible Foreign Custodian
shall not include any `Compulsory Depository.' A
Compulsory Depository shall mean a securities
depository or clearing agency the use of which is
compulsory because: (1) its use is required by law or
regulation, (2) securities cannot be withdrawn from the
depository, or (3) maintaining securities outside the
depository is not consistent with prevailing custodial
practices in the country which the depository serves.
Compulsory Depositories used by Bank as of the date
hereof are set forth in Appendix 1-A hereto, and as the
same may be amended on notice to Customer from time to
time.
(b) In connection with the foregoing, Bank shall:
(i) provide written reports notifying Customer's
Board of the placement of Financial Assets and
Cash with particular Eligible Foreign Custodians
and of any material change in the arrangements
with such Eligible Foreign Custodians, with such
reports to be provided to Customer's Board at such
times as the Board deems reasonable and
appropriate based on the circumstances of
Customer's foreign custody arrangements (and until
further notice from Customer such reports shall be
provided not less than quarterly with respect to
the placement of Financial Assets and Cash with
particular Eligible Foreign Custodians and with
reasonable promptness upon the occurrence of any
material change in the arrangements with such
Eligible Foreign Custodians);
(ii) exercise such reasonable care, prudence and
diligence in performing as Customer's Foreign
Custody Manager as a person having responsibility
for the safekeeping of Financial Assets and Cash
would exercise;
(iii) in selecting an Eligible Foreign Custodian,
first have determined that Financial Assets and
Cash placed and maintained in the safekeeping of
such 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 Financial Assets and Cash,
including, without limitation, those factors set
forth in SEC rule 17f-5(c)(1)(i)-(iv);
(iv) determine that the written contract with the
Eligible Foreign Custodian (or, in the case of an
Eligible Foreign Custodians that is a securities
depository or clearing agency, such contract, the
rules or established practices or procedures of
the depository, or any combination of the
foregoing) requires that the Eligible Foreign
Custodian will provide reasonable care for
Financial Assets and Cash based on the standards
applicable to custodians in the relevant market.
(v) have established a system to monitor the
continued appropriateness of maintaining Financial
Assets and Cash with particular Eligible Foreign
Custodians and of the governing contractual
arrangements; it being understood, however, that
in the event that Bank shall have determined that
the existing Eligible Foreign Custodian in a given
country would no longer afford Financial Assets
and Cash reasonable care and that no other
Eligible Foreign Custodian in that country would
afford reasonable care, Bank shall promptly so
advise Customer and shall then act in accordance
with the Instructions of Customer with respect to
the disposition of the affected Financial Assets
and Cash.
Subject to (b)(i)-(v) above, Bank is hereby authorized
to place and maintain Financial Assets and Cash on
behalf of Customer with Eligible Foreign Custodians
pursuant to a written contract deemed appropriate by
Bank.
(c) Except as expressly provided herein, Customer
shall be solely responsible to assure that the
maintenance of Financial Assets and Cash hereunder
complies with the rules, regulations, interpretations
and exemptive orders promulgated by or under the
authority of the SEC.
(d) Bank represents to Customer that it is a U.S.
Bank as defined in Rule 17f-5(a)(7). Customer
represents to Bank that: (1) the Financial Assets and
Cash being placed and maintained in Bank's custody are
subject to the Investment Company Act of 1940, as
amended (the "1940 Act"), as the same may be amended
from time to time; (2) its Board: (i) has determined
that it is reasonable to rely on Bank to perform as
Customer's Foreign Custody Manager (ii) or its
investment adviser shall have determined that Customer
may maintain Financial Assets and Cash in each country
in which Customer's Financial Assets and Cash shall be
held hereunder and determined to accept the risks
arising therefrom (including, but not limited to, a
country's financial infrastructure), prevailing custody
and settlement practices, laws applicable to the
safekeeping and recovery of Financial Assets and Cash
held in custody, and the likelihood of nationalization,
currency controls and the like) (collectively ("Country
Risk")). Nothing contained herein shall require Bank
to make any selection or to engage in any monitoring on
behalf of Customer that would entail consideration of
Country Risk.
(e) Bank shall provide to Customer such
information relating to Country Risk as is specified in
Appendix 1-B hereto. Customer hereby acknowledges
that: (i) such information is solely designed to inform
Customer of market conditions and procedures and is not
intended as a recommendation to invest or not invest in
particular markets; and (ii) Bank has gathered the
information from sources it considers reliable, but
that Bank shall have no responsibility for inaccuracies
or incomplete information.
B. Add the following after the first sentence of
Section 3 of the Agreement: "At the request of
Customer, Bank may, but need not, add to Schedule A an
Eligible Foreign Custodian that is either a bank or a
non-Compulsory Depository where Bank has not acted as
Foreign Custody Manager with respect to the selection
thereof. Bank shall notify Customer in the event that
it elects to add any such entity."
C. Add the following language to the end of
Section 3 of the Agreement:
"The term Subcustodian as used herein shall mean the following:
(a) a `U.S. Bank,' which shall mean a U.S. bank
as defined in SEC rule 17f-5(a)(7);
(b) an `Eligible Foreign Custodian,' which shall
mean (i) a banking institution or trust company,
incorporated or organized under the laws of a
country other than the United States, that is
regulated as such by that country's government or
an agency thereof, (ii) a majority-owned direct or
indirect subsidiary of a U.S. bank or bank holding
company which subsidiary is incorporated or
organized under the laws of a country other than
the United States; (iii) a securities depository
or clearing agency, incorporated or organized
under the laws of a country other than the United
States (other than a Compulsory Depository), that
acts as a system for the central handling of
securities or equivalent book-entries in that
country and that is regulated by a foreign
financial regulatory authority as defined under
section 2(a)(50) of the 1940 Act, (iv) a
securities depository or clearing agency organized
under the laws of a country other than the United
States to the extent acting as a transnational
system for the central handling of securities or
equivalent book-entries, and (v) any other entity
that shall have been so qualified by exemptive
order, rule or other appropriate action of the
SEC.
For purposes of clarity, it is agreed that as used in
Section 12(a)(i), the term Subcustodian shall not
include any Eligible Foreign Custodian as to which Bank
has not acted as Foreign Custody Manager or any
Compulsory Depository."
Appendix 1-A
COMPULSORY DEPOSITORIES
Appendix 1-B
Information Regarding Country Risk
1. To aid Customer in its determinations
regarding Country Risk, Bank shall furnish annually and
upon the initial placing of Financial Assets and Cash
into a country the following information (check items
applicable):
A Opinions of local counsel concerning:
___ i. Whether applicable foreign law would
restrict the access afforded Customer's
independent public accountants to books and
records kept by an eligible foreign custodian
located in that country.
___ ii. Whether applicable foreign law would
restrict the Customer's ability to recover
its Financial Assets and Cash in the event of
the bankruptcy of an Eligible Foreign
Custodian located in that country.
___ iii. Whether applicable foreign law would
restrict the Customer's ability to recover
Financial Assets that are lost while under
the control of an Eligible Foreign Custodian
located in the country.
B. Written information concerning:
___ i. The foreseeability of expropriation,
nationalization, freezes, or confiscation of
Customer's Financial Assets and Cash.
___ ii. Whether difficulties in converting
Customer's cash and cash equivalents to U.S.
dollars are reasonably foreseeable.]
C. A market report with respect to the following
topics:
(i) securities regulatory environment, (ii)
foreign ownership restrictions, (iii) foreign
exchange, (iv) securities settlement and
registration, (v) taxation, and (vi) compulsory
depositories (including depository evaluation).
2. To aid Customer in monitoring Country Risk,
Bank shall furnish board the following additional
information:
Market flashes, including with respect to changes
in the information in market reports.
GLOBAL PROXY SERVICE RIDER
To Global Custody Agreement
Between
THE CHASE MANHATTAN BANK
FIRSTAR BANK, MILWAUKEE, N.A.
AND
____________________________________
dated 1999.
1. Global Proxy Services ("Proxy Services") shall be
provided for the countries listed in the proce
dures and guidelines ("Procedures") furnished to
Customer, as the same may be amended by Bank from
time to time on prior notice to Customer. The
Procedures are incorporated by reference herein
and form a part of this Rider.
2. Proxy Services shall consist of those elements as
set forth in the Procedures, and shall include (a)
notifications ("Notifications") by Bank to
Customer of the dates of pending shareholder
meetings, resolutions to be voted upon and the
return dates as may be received by Bank or
provided to Bank by its Subcustodians or third
parties, and (b) voting by Bank of proxies based
on Customer Instructions. Original proxy
materials or copies thereof shall not be provided.
Notifications shall generally be in English and,
where necessary, shall be summarized and
translated from such non-English materials as have
been made available to Bank or its Subcustodian.
In this respect Bank's only obligation is to
provide information from sources it believes to be
reliable and/or to provide materials summarized
and/or translated in good faith. Bank reserves
the right to provide Notifications, or parts
thereof, in the language received. Upon
reasonable advance request by Customer, backup
information relative to Notifications, such as
annual reports, explanatory material concerning
resolutions, management recommendations or other
material relevant to the exercise of proxy voting
rights shall be provided as available, but without
translation.
3. While Bank shall attempt to provide accurate and
complete Notifications, whether or not translated,
Bank shall not be liable for any losses or other
consequences that may result from reliance by
Customer upon Notifications where Bank prepared
the same in good faith.
4 Notwithstanding the fact that Bank may act in a
fiduciary capacity with respect to Customer under
other agreements or otherwise under the Agreement,
in performing Proxy Services Bank shall be acting
solely as the agent of Customer, and shall not
exercise any discretion with regard to such Proxy
Services.
5. Proxy voting may be precluded or restricted in a
variety of circumstances, including, without
limitation, where the relevant Financial Assets
are: (i) on loan; (ii) at registrar for
registration or reregistration; (iii) the subject
of a conversion or other corporate action; (iv)
not held in a name subject to the control of Bank
or its Subcustodian or are otherwise held in a
manner which precludes voting; (v) not capable of
being voted on account of local market regulations
or practices or restrictions by the issuer; or
(vi) held in a margin or collateral account.
6 Customer acknowledges that in certain countries
Bank may be unable to vote individual proxies but
shall only be able to vote proxies on a net basis
(e.g., a net yes or no vote given the voting
instructions received from all customers).
7. Customer shall not make any use of the information
provided hereunder, except in connection with the
funds or plans covered hereby, and shall in no
event sell, license, give or otherwise make the
information provided hereunder available, to any
third party, and shall not directly or indirectly
compete with Bank or diminish the market for Proxy
Services by provision of such information, in
whole or in part, for compensation or otherwise,
to any third party.
8. The names of Authorized Persons for Proxy Services
shall be furnished to Bank in accordance with 10
of the Agreement. Proxy Services fees shall be as
set forth in 13 of the Agreement or as separately
agreed.
SPECIAL TERMS AND CONDITIONS RIDER
GLOBAL CUSTODY AGREEMENT
WITH _______________________
DATE________________________
DOMESTIC ONLY
SPECIAL TERMS AND CONDITIONS RIDER
Domestic Corporate Actions and Proxies
With respect to domestic U.S. and Canadian Financial
Assets (the latter if held in DTC), the following
provisions shall apply rather than the provisions of
Section 8 of the Agreement and the Global Proxy Service
rider:
Bank shall send to Customer or the Authorized
Person for a Custody Account, such proxies
(signed in blank, if issued in the name of
Bank's nominee or the nominee of a central
depository) and communications with respect
to Financial Assets in the Custody Account as
call for voting or relate to legal
proceedings within a reasonable time after
sufficient copies are received by Bank for
forwarding to its customers. In addition,
Bank shall follow coupon payments,
redemptions, exchanges or similar matters
with respect to Financial Assets in the
Custody Account and advise Customer or the
Authorized Person for such Account of rights
issued, tender offers or any other
discretionary rights with respect to such
Financial Assets, in each case, of which Bank
has received notice from the issuer of the
Financial Assets, or as to which notice is
published in publications routinely utilized
by Bank for this purpose.
Fees
The fees referenced in Section 13 hereof cover only
domestic and euro-dollar holdings. There shall be no
Schedule A hereto, as there are no foreign assets in
the Accounts.
DOMESTIC AND GLOBAL
SPECIAL TERMS AND CONDITIONS RIDER
Domestic Corporate Actions and Proxies
With respect to domestic U.S. and Canadian Financial
Assets (the latter if held in DTC), the following
provisions shall apply rather than the pertinent
provisions of Section 8 of the Agreement and the Global
Proxy Service rider:
Bank shall send to Customer or the Authorized
Person for a Custody Account, such proxies
(signed in blank, if issued in the name of
Bank's nominee or the nominee of a central
depository) and communications with respect
to Financial Assets in the Custody Account as
call for voting or relate to legal
proceedings within a reasonable time after
sufficient copies are received by Bank for
forwarding to its customers. In addition,
Bank shall follow coupon payments,
redemptions, exchanges or similar matters
with respect to Financial Assets in the
Custody Account and advise Customer or the
Authorized Person for such Account of rights
issued, tender offers or any other
discretionary rights with respect to such
Financial Assets, in each case, of which Bank
has received notice from the issuer of the
Financial Assets, or as to which notice is
published in publications routinely utilized
by Bank for this purpose.
