Exhibit (8)(p)
FORM
CUSTODY AGREEMENT
AGREEMENT, dated as of December ___, 1997 by and between THE RBB FUND, INC.
(the "Company"), a corporation organized and existing under the laws of the
State of Maryland, acting with respect to and on behalf of the N/I LARGER CAP
VALUE FUND (the "Fund"), and CUSTODIAL TRUST COMPANY, a bank organized and
existing under the laws of the State of New Jersey (the "Custodian").
WHEREAS, the Company on behalf of the Fund desires that the Fund's
securities, cash and other assets be held and administered by Custodian pursuant
to this Agreement;
WHEREAS, the Fund is an investment portfolio represented by a series of
Shares constituting part of the capital stock of the Company, an open-end
management investment company registered under the 1940 Act (as hereinafter
defined);
WHEREAS, Custodian represents that it is a bank having the qualifications
prescribed in Section 26(a)(i) of the 1940 Act;
NOW, THEREFORE, in consideration of the mutual agreements herein made, the
Company on behalf of the Fund and Custodian hereby agree as follows:
ARTICLE I
DEFINITIONS
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Whenever used in this Agreement, the following terms, unless the context
otherwise requires, shall mean:
1.1 "AUTHORIZED PERSON" means any Officer or other person duly authorized
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by resolution of the Board of Directors to give Oral Instructions and Written
Instructions on behalf of the Fund and identified, by name or by office, in
Exhibit A hereto or any person duly designated to do so by an investment adviser
of the Fund specified by the Fund in Exhibit B hereto.
1.2 "BOARD OF DIRECTORS" means the Board of Directors of the Company or,
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when permitted under the 1940 Act, the Executive Committee thereof, if any.
1.3 "BOOK-ENTRY SYSTEM" means a book-entry system maintained by a Federal
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Reserve bank as provided for in Subpart O of Treasury Circular Xx. 000, 00 XXX
306, in Subpart B of 31 CFR Part 350, or in such other book-entry regulations of
federal agencies as are substantially in the form of such Subpart O.
1.4 "BUSINESS DAY" means any day recognized as a settlement day by The New
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York Stock Exchange, Inc. and on which banks in the State of New Jersey are open
for business.
1.5 "CUSTODY ACCOUNT" means the account in the name of the Fund, which is
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provided for in Section 3.2 below.
1.6 "MASTER REPURCHASE AGREEMENT" means that certain Master Repurchase
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Agreement of even date herewith between the Company on behalf of the Fund and
Bear, Xxxxxxx & Co. Inc., an affiliate of Custodian ("Bear Xxxxxxx"), as it may
from time to time be amended.
1.7 "1940 ACT" means the Investment Company Act of 1940, as amended, and
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the rules and regulations thereunder.
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1.8 "OFFICER" means the President, any Vice President, the Secretary, any
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Assistant Secretary, the Treasurer, or any Assistant Treasurer of the Company.
1.9 "ORAL INSTRUCTIONS" means instructions orally transmitted to and
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accepted by Custodian which are (a) reasonably believed by Custodian to have
been given by an Authorized Person, (b) recorded and kept among the records of
Custodian made in the ordinary course of business, (c) orally confirmed by
Custodian, and (d) completed in accordance with Custodian's requirements from
time to time as to content of instructions and their manner and timeliness of
delivery by the Fund.
1.10 "PROPER INSTRUCTIONS" means Oral Instructions or Written
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Instructions. Proper Instructions may be continuing Written Instructions when
deemed appropriate by both parties.
1.11 "SECURITIES" includes, without limitation, common and preferred
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stocks, bonds, call options, put options, debentures, notes, bank certificates
of deposit, forward contracts, futures contracts (including those related to
indexes), options on futures contracts or indexes, bankers' acceptances,
mortgage-backed securities or other obligations, and any certificates, receipts,
warrants or other instruments or documents representing rights to receive,
purchase or subscribe for the same, or evidencing or representing any other
rights or interests therein, or any similar property or assets that Custodian
has the facilities to clear and to service.
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1.12 "SECURITIES LOAN AGREEMENT" means that certain Securities Loan
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Agreement of even date herewith between the Company on behalf of the Fund and
Bear, Xxxxxxx Securities Corp. ("BSSC"), as it may from time to time be amended.
1.13 "SECURITIES DEPOSITORY" means The Depository Trust Company and
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(provided that Custodian has received a copy of a resolution of the Board of
Directors of the Company, certified by an Officer, specifically approving the
use thereof as a depository for the Fund) any other clearing agency registered
with the Securities and Exchange Commission under Section 17A of the Securities
Exchange Act of 1934 (the "1934 Act"), which acts as a system for the central
handling and deposit of Securities where all Securities of any particular class
or series of an issuer deposited within the system are treated as fungible and
may be transferred or pledged by bookkeeping entry without physical delivery of
the Securities.
1.14 "SHARES" means those shares in a series or class of the capital stock
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of the Company that represent interests in the Fund.
1.15 "WRITTEN INSTRUCTIONS" means written communications received by
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Custodian that are (a) reasonably believed by Custodian to have been signed or
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sent by any two Authorized Persons, (b) sent or transmitted by letter,
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facsimile, central processing unit connection, on-line terminal or magnetic
tape, and (c) completed in accordance with Custodian's requirements
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from time to time as to content of instructions and their manner and timeliness
of delivery by the Fund.
ARTICLE II
APPOINTMENT OF CUSTODIAN
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2.1 APPOINTMENT. The Company on behalf of the Fund hereby appoints
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Custodian as custodian of all such Securities, cash and other assets as may be
acceptable to Custodian and from time to time delivered to it by the Fund or
others for the account of the Fund.
2.2 ACCEPTANCE. Custodian hereby accepts appointment as such custodian
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and agrees to perform the duties thereof as hereinafter set forth.
ARTICLE III
CUSTODY OF CASH AND SECURITIES
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3.1 SEGREGATION. All Securities and non-cash property of the Fund in the
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possession of Custodian (other than Securities maintained by Custodian in a
Securities Depository or Book-Entry System) shall be physically segregated from
other Securities and non-cash property in the possession of Custodian and shall
be identified as belonging to the Fund.
3.2 CUSTODY ACCOUNT. (a) Custodian shall open and maintain in its trust
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department a custody account in the name of the Fund, subject only to draft or
order of Custodian, in which Custodian shall enter and carry all securities,
cash and other assets of the Fund which are delivered to Custodian and accepted
by it. Custodian shall not be under any duty or obligation to
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require the Fund to deliver to it any Securities or funds owned by the Fund and
shall have no responsibility or liability for or on account of Securities or
funds not so delivered.
(b) If Custodian at any time fails to receive any of the documents
referred to in Section 3.5(a) below, then, until such time as it receives such
document, it shall not be obligated to receive any Securities of the Fund into
the Custody Account and shall be entitled to return to the Fund any Securities
of the Fund that it is holding.
(c) Custodian may, but shall not be obligated to, hold Securities that
may be held only in physical form.
(d) Custodian is authorized to disclose the name, address and
securities positions of the Fund to the issuers of such securities when
requested by them to do so.
3.3 APPOINTMENT OF AGENTS. (a) Custodian may employ suitable agents,
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which may include affiliates of Custodian, such as Bear Xxxxxxx or BSSC, both of
which are registered broker-dealers. The appointment of any agent pursuant to
this Section 3.3(a) shall not relieve Custodian of any of its obligations or
liabilities under this Agreement. However, no Book-Entry System, Securities
Depository or other securities depository or clearing agency which it is or may
become standard market practice to use for the comparison and settlement of
trades in securities shall be an agent or sub-contractor of Custodian for
purposes of this Section 3.3(a) or otherwise.
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(b) Upon notification of the Fund and in its discretion, Custodian may
appoint, and, upon notification of the Fund, at any time remove, any domestic
bank or trust company which is qualified to act as a custodian under the 1940
Act as sub-custodian to hold Securities and cash of the Fund and to carry out
such other provisions of this Agreement as it may determine, and, upon
notification of the Fund, may also open and maintain one or more banking
accounts with such a bank or trust company (any such accounts to be in the name
of Custodian and subject only to its draft or order), provided, however, that
the appointment of any such agent or opening and maintenance of any such
accounts shall be at Custodian's expense and shall not relieve Custodian of any
of its obligations or liabilities under this Agreement.
(c) Upon receipt of Written Instructions to do so and at the Fund's
expense, Custodian shall appoint as sub-custodian such domestic bank or trust
company as is named therein, provided that (i) such bank or trust company is
qualified to act as a custodian under the 1940 Act, and (ii) notwithstanding
anything to the contrary in Section 9.1 below or elsewhere in this Agreement,
Custodian shall have no greater liability to the Fund for the actions or
omissions of any such sub-custodian than any such sub-custodian has to
Custodian, and Custodian shall not be required to discharge any such liability
which may be imposed on it unless and until such sub-custodian has effectively
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indemnified Custodian against it or has otherwise discharged its liability to
Custodian in full.
3.4 Delivery of Assets to Custodian. The Fund shall deliver to Custodian
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the Fund's Securities, cash and other assets, which are acceptable to Custodian,
including (a) payments of income, payments of principal and capital
distributions received by the Fund with respect to such Securities, cash or
other assets owned by the Fund at any time during the term of this Agreement,
and (b) cash received by the Fund for the issuance, at any time during such
term, of Shares. Custodian shall not be responsible for such Securities, cash
or other assets until actually received by it.
3.5 Securities Depositories and Book-Entry Systems. Custodian may deposit
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and/or maintain Securities of the Fund in a Securities Depository or in a Book-
Entry System, subject to the following provisions:
(a) Prior to a deposit of Securities of the Fund in any Securities
Depository or Book-Entry System, the Fund shall deliver to Custodian a
resolution of the Board of Directors of the Company, certified by an Officer,
authorizing and instructing Custodian (and any sub-custodian appointed pursuant
to Section 3.3 above) on an on-going basis to deposit in such Securities
Depository or Book-Entry System all Securities eligible for deposit therein and
to make use of such Securities Depository or Book-Entry System to the extent
possible and practical in connection with its performance hereunder (or under
the
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applicable sub-custody agreement in the case of such sub-custodian), including,
without limitation, in connection with settlements of purchases and sales of
Securities, loans of Securities, and deliveries and returns of collateral
consisting of Securities.
(b) Securities of the Fund kept in a Book-Entry System or Securities
Depository shall be kept in an account ("Depository Account") of Custodian in
such Book-Entry System or Securities Depository which includes only assets held
by Custodian as a fiduciary, custodian or otherwise for customers.
(c) The records of Custodian with respect to Securities of the Fund
maintained in a Book-Entry System or Securities Depository shall at all times
identify such Securities as belonging to the Fund.
(d) If Securities purchased by the Fund are to be held in a Book-Entry
System or Securities Depository, Custodian shall pay for such Securities upon
(i) receipt of advice from the Book-Entry System or Securities Depository that
such Securities have been transferred to the Depository Account, and (ii) the
making of an entry on the records of Custodian to reflect such payment and
transfer for the account of the Fund. If Securities sold by the Fund are held
in a Book-Entry System or Securities Depository, Custodian shall transfer such
Securities upon (i) receipt of advice from the Book-Entry System or Securities
Depository that payment for such Securities has been transferred to the
Depository Account, and (ii) the making of an entry on the
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records of Custodian to reflect such transfer and payment for the account of the
Fund.
(e) Custodian shall provide the Fund with copies of any report
obtained by Custodian from a Book-Entry System or Securities Depository in which
Securities of the Fund are kept on the internal accounting controls and
procedures for safeguarding Securities deposited in such Book-Entry System or
Securities Depository.
(f) At its election, the Company on behalf of the Fund shall be
subrogated to the rights of Custodian with respect to any claim against a Book-
Entry System or Securities Depository or any other person for any loss or damage
to the Fund arising from the use of such Book-Entry System or Securities
Depository, if and to the extent that the Fund has not been made whole for any
such loss or damage.
3.6 Disbursement of Moneys from the Custody Account. Upon receipt of
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Proper Instructions, but subject to its right to foreclose upon and liquidate
collateral pledged to it pursuant to Section 10.3 below, Custodian shall make
payments from the Custody Account, but only in the following cases, provided,
first, that such payments are in connection with the clearance and/or custody of
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Securities or other assets, second, that there are sufficient funds in the
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Custody Account, whether belonging to the Fund or advanced to it by Custodian in
its sole and absolute discretion as set forth in Section 4.5 below, for
Custodian to make such payments and, third, that after the making of such
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payments, the Fund would not be in violation of any margin or other requirements
agreed upon pursuant to Section 4.5 below:
(a) For the purchase of Securities for the Fund but only (i) in the
case of Securities (other than options on Securities, futures contracts and
options on futures contracts), against the delivery to Custodian (or any sub-
custodian appointed pursuant to Section 3.3 above) of such Securities registered
as provided in Section 3.9 below or in proper form for transfer or, if the
purchase of such Securities is effected through a Book-Entry System or
Securities Depository, in accordance with the conditions set forth in Section
3.5 above; (ii) in the case of options on Securities, against delivery to
Custodian (or such sub-custodian) of such receipts as are required by the
customs prevailing among dealers in such options; (iii) in the case of futures
contracts and options on futures contracts, against delivery to Custodian (or
such sub-custodian) of evidence of title thereto in favor of the Fund, the
Custodian, any such sub-custodian or any nominee referred to in Section 3.9
below; and (iv) in the case of repurchase or reverse repurchase agreements
entered into by the Fund, against delivery of the purchased Securities either in
certificate form or through an entry crediting Custodian's account at a Book-
Entry System or Securities Depository with such Securities;
(b) In connection with the conversion, exchange or surrender, as set
forth in Section 3.7(f) below, of Securities owned by the Fund;
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(c) For the payment as provided in Article V below of any dividends or
other distributions declared by the Fund on the Shares;
(d) In payment of the redemption price of Shares as provided in
Article V below;
(e) For the payment of any expense or liability incurred by the Fund,
including but not limited to the following payments for the account of the Fund:
interest, taxes, administration, investment management, investment advisory,
accounting, auditing, transfer agent, custodian, trustee and legal fees; and
other operating expenses of the Fund; in all cases, whether or not such expenses
are to be in whole or in part capitalized or treated as deferred expenses;
(f) For transfer in accordance with the provisions of any agreement
among the Company on behalf of the Fund, Custodian and a broker-dealer, relating
to compliance with rules of The Options Clearing Corporation and of any
registered national securities exchange (or of any similar organization or
organizations) regarding escrow or other arrangements in connection with
transactions by the Fund;
(g) For transfer in accordance with the provisions of any agreement
among the Company on behalf of the Fund, Custodian, and a futures commission
merchant, relating to compliance with the rules of the Commodity Futures Trading
Commission and/or any contract market (or any similar organization or
organizations)
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regarding account deposits in connection with transactions by the Fund;
(h) For the funding of any uncertificated time deposit or other
interest-bearing account with any banking institution (including Custodian), but
only if the payment instructions to Custodian detail specific Securities to be
acquired;
(i) For the purchase from a bank or other financial institution of
loan participations, but only if Custodian has in its possession a copy of the
agreement between the Company on behalf of the Fund and such bank or other
financial institution with respect to the purchase of such loan participations
and the payment instructions to Custodian detail specific assets to be acquired;
(j) For transfer to a broker-dealer registered under the 1934 Act in
accordance with the provisions of any agreement among the Company on behalf of
the Fund, Custodian and such a broker-dealer as margin for a short sale of
Securities;
(k) For the payment of amounts due in lieu of dividends paid on
Securities sold short by the Fund; and
(l) For any other proper purpose, but only upon receipt, in addition
to Proper Instructions, of a copy of a resolution of the Board of Directors,
certified by an Officer, specifying the amount and purpose of such payment,
declaring such purpose to be a proper purpose of the Fund, and naming the person
or persons to whom such payment is to be made.
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3.7 Delivery of Securities from the Custody Account. Upon receipt of
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Proper Instructions, but subject to its right to foreclose upon and liquidate
collateral pledged to it pursuant to Section 10.3 below, Custodian shall release
and deliver Securities and other assets from the Custody Account, but only in
the following cases, provided, first, that such deliveries are in connection
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with the clearance and/or custody of Securities or other assets, second, that
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there are sufficient amounts and types of Securities or other assets in the
Custody Account for Custodian to make such delivery, and, third, that after the
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making of such delivery, the Fund would not be in violation of any margin or
other requirements agreed upon pursuant to Section 4.5 below:
(a) Upon the sale of Securities for the account of the Fund but,
subject to Section 4.3 below, only against receipt of payment therefor in cash,
by certified or cashiers' check or bank credit;
(b) In the case of a sale effected through a Book-Entry System or
Securities Depository, in accordance with the provisions of Section 3.5 above;
(c) To an offeror's depository agent in connection with tender or
other similar offers for Securities of the Fund; provided that, in any such
case, the cash or other consideration is to be delivered to Custodian;
(d) To the issuer thereof or its agent (i) for transfer into the name
of the Fund or any of the nominees
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referred to in Section 3.9 below, or (ii) for exchange for a different number of
certificates or other evidence representing the same aggregate face amount or
number of units; provided that, in any such case, the new Securities are to be
delivered to Custodian;
(e) To the broker selling Securities, for examination in accordance
with the "street delivery" custom;
(f) For exchange or conversion pursuant to any plan of merger,
consolidation, recapitalization, reorganization or readjustment of the issuer of
such Securities, or pursuant to provisions for conversion contained in such
Securities, or pursuant to any deposit agreement, including surrender or receipt
of underlying Securities in connection with the issuance or cancellation of
depository receipts; provided that, in any such case, the new Securities and
cash, if any, are to be delivered to Custodian;
(g) Upon receipt of payment therefor pursuant to any repurchase
agreement entered into by the Fund;
(h) In the case of warrants, rights or similar Securities, upon the
exercise thereof, provided that, in any such case, the new Securities and cash,
if any, are to be delivered to Custodian;
(i) For delivery in connection with any loans of Securities pursuant
to any securities loan agreement entered into by the Company on behalf of the
Fund, but only against receipt of
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such collateral as is required under such securities loan agreement;
(j) For delivery as security in connection with any borrowings by the
Fund requiring a pledge of assets by the Fund, but only against receipt by
Custodian of the amounts borrowed;
(k) Pursuant to any authorized plan of liquidation, reorganization,
merger, consolidation or recapitalization of the Fund;
(l) For delivery in accordance with the provisions of any agreement
among the Company on behalf of the Fund, Custodian and a broker-dealer, relating
to compliance with the rules of The Options Clearing Corporation and of any
registered national securities exchange (or of any similar organization or
organizations) regarding escrow or other arrangements in connection with
transactions by the Fund;
(m) For delivery in accordance with the provisions of any agreement
among the Company on behalf of the Fund, Custodian, and a futures commission
merchant, relating to compliance with the rules of the Commodity Futures Trading
Commission and/or any contract market (or any similar organization or
organizations) regarding account deposits in connection with transactions by the
Fund;
(n) For delivery to a broker-dealer registered under the 1934 Act or
in accordance with the provisions of any agreement among the Company on behalf
of the Fund, Custodian and such a broker-dealer as margin for a short sale of
Securities;
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(o) For any other proper purpose, but only upon receipt, in addition
to Proper Instructions, of a copy of a resolution of the Board of Directors,
certified by an Officer, specifying the Securities to be delivered, setting
forth the purpose for which such delivery is to be made, declaring such purpose
to be a proper purpose of the Fund, and naming the person or persons to whom
delivery of such Securities is to be made.
3.8 Actions Not Requiring Proper Instructions. Unless otherwise
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instructed by the Fund, Custodian shall with respect to all Securities held for
the Fund:
(a) Subject to Section 9.4 below, collect on a timely basis all income
and other payments to which the Fund is entitled either by law or pursuant to
custom in the securities business;
(b) Subject to Section 9.4 below, collect on a timely basis the amount
payable upon or with respect to all Securities and other assets which may mature
or be called, redeemed, retired or otherwise become payable;
(c) Endorse for collection, in the name of the Fund, checks, drafts
and other negotiable instruments;
(d) Surrender interim receipts or Securities in temporary form for
Securities in definitive form;
(e) Execute, as custodian, any necessary declarations or certificates
of ownership under the federal income tax laws or the laws or regulations of any
other taxing authority now or hereafter in effect, and prepare and submit
reports to the Internal Revenue Service ("IRS") and to the Fund at such time, in
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such manner and containing such information as is prescribed by the IRS;
(f) Hold for the Fund all rights and similar securities issued with
respect to Securities of the Fund; and
(g) In general, attend to all non-discretionary details in connection
with the sale, exchange, substitution, purchase and transfer of, and other
dealings in, Securities and other assets of the Fund.
3.9 Registration and Transfer of Securities. All Securities held for the
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Fund that are issuable only in bearer form shall be held by Custodian in that
form, provided that any such Securities shall be held in a Book-Entry System if
eligible therefor. All other Securities held for the Fund may be registered in
the name of Custodian as agent, any sub-custodian appointed pursuant to Section
3.3 above, any Securities Depository, or any nominee or agent of any of them.
The Fund shall furnish to Custodian appropriate instruments to enable Custodian
to hold or deliver in proper form for transfer, or to register as in this
Section 3.9 provided, any Securities delivered to Custodian which are registered
in the name of the Fund.
3.10 Records. (a) Custodian shall maintain complete and accurate records
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with respect to Securities, cash or other property held for the Fund, including
(i) journals or other records of original entry containing an itemized daily
record in detail of all receipts and deliveries of Securities and all
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receipts and disbursements of cash; (ii) ledgers (or other records) reflecting
(A) Securities in transfer, if any, (B) Securities in physical possession, (C)
monies and Securities borrowed and monies and Securities loaned (together with a
record of the collateral therefor and substitutions of such collateral), (D)
dividends and interest received, and (E) dividends receivable and interest
accrued; and (iii) cancelled checks and bank records related thereto. Custodian
shall keep such other books and records with respect to Securities, cash and
other property of the Fund which is held hereunder as the Fund may reasonably
request.
(b) All such books and records maintained by Custodian shall (i) be
maintained in a form acceptable to the Fund and in compliance with rules and
regulations of the Securities and Exchange Commission, (ii) be the property of
the Fund and at all times during the regular business hours of Custodian be made
available upon request for inspection by duly authorized officers, employees or
agents of the Company on behalf of the Fund and employees or agents of the
Securities and Exchange Commission, and (iii) if required to be maintained by
Rule 31a-1 under the 1940 Act, be preserved for the periods prescribed in Rule
31a-2 under the 0000 Xxx.
3.11 Account Reports by Custodian. Custodian shall furnish the Fund with
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a daily activity statement, including a summary of all transfers to or from the
Custody Account, on the day following such transfers. At least monthly and from
time to
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time, Custodian shall furnish the Fund with a detailed statement of the
Securities and moneys held for the Fund under this Agreement.
3.12 Other Reports by Custodian. Custodian shall provide the Fund with
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such reports as the Fund may reasonably request from time to time on the
internal accounting controls and procedures for safeguarding Securities which
are employed by Custodian or any sub-custodian appointed pursuant to Section 3.3
above.
3.13 Proxies and Other Materials. Unless otherwise instructed by the
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Fund, Custodian shall promptly deliver to the Fund all notices of meetings,
proxy materials (other than proxies) and other announcements, which it receives
regarding Securities held by it in the Custody Account. Whenever Custodian or
any of its agents receives a proxy with respect to Securities in the Custody
Account, Custodian shall promptly request instructions from the Fund on how such
Securities are to be voted, and shall give such proxy, or cause it to be given,
in accordance with such instructions. If the Fund timely informs Custodian that
the Fund wishes to vote any such Securities in person, Custodian shall promptly
seek to have a legal proxy covering such Securities issued to the Fund. Unless
otherwise instructed by the Fund, neither Custodian nor any of its agents shall
exercise any voting rights with respect to Securities held hereunder.
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3.14 Information on Corporate Actions. Unless otherwise instructed by the
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Fund, Custodian shall promptly transmit to the Fund all other written
information received by Custodian from issuers of Securities held in the Custody
Account. With respect to tender or exchange offers for such Securities, or
other corporate transactions involving such Securities, Custodian shall promptly
transmit to the Fund all written information received by Custodian from the
issuers of such Securities or from any party (or its agents) making any such
tender or exchange offer or participating in such other corporate transaction.
If the Fund desires, with respect to any such tender or exchange offer or other
corporate transaction, to take any action that may be taken by it pursuant to
the terms of such offer or other transaction, the Fund shall notify Custodian at
least five Business Days prior to the date on which Custodian is to take such
action.
3.15 Co-operation. Custodian shall cooperate with and supply necessary
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information to the entity or entities appointed by the Company on behalf of the
Fund to keep the books of account of the Fund and/or to compute the value of the
assets of the Fund.
ARTICLE IV
PURCHASE AND SALE OF INVESTMENTS OF THE FUND
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4.1 Purchase of Securities. Promptly upon each purchase of Securities for
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the Fund, Written Instructions shall be delivered to Custodian, specifying (a)
the name of the issuer or writer of such Securities, and the title or other
description thereof, (b)
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the number of shares, principal amount (and accrued interest, if any), or other
units purchased, (c) the date of purchase and settlement, (d) the purchase price
per unit, (e) the total amount payable upon such purchase, and (f) the name of
the person to whom such amount is payable. Custodian shall upon receipt of such
Securities purchased by the Fund (or, if the Securities are transferred by means
of a private placement transaction, upon the receipt of such Securities or
payment instructions to Custodian which detail specific Securities to be
acquired) pay out of the moneys held for the account of the Fund the total
amount specified in such Written Instructions to the person named therein.
4.2 Sale of Securities. Promptly upon each sale of Securities by the
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Fund, Written Instructions shall be delivered to Custodian, specifying (a) the
name of the issuer or writer of such Securities, and the title or other
description thereof, (b) the number of shares, principal amount (and accrued
interest, if any), or other units sold, (c) the date of sale and settlement, (d)
the sale price per unit, (e) the total amount payable upon such sale, and (f)
the person to whom such Securities are to be delivered. Upon receipt of the
total amount payable to the Fund as specified in such Written Instructions,
Custodian shall deliver such Securities to the person specified in such Written
Instructions. Subject to the foregoing, Custodian may accept payment in such
form as shall be satisfactory to it, and may
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deliver Securities and arrange for payment in accordance with the customs
prevailing among dealers in Securities.
4.3 Delivery of Securities Sold. Notwithstanding Section 4.2 above or any
---------------------------
other provision of this Agreement, Custodian, when instructed to deliver
Securities against payment, shall be entitled, but only if in accordance with
generally accepted market practice, to deliver such Securities prior to actual
receipt of final payment therefor and, exclusively in the case of Securities in
physical form, to deliver such Securities prior to receipt of payment. In any
such case, the Fund shall bear the risk that final payment for such Securities
may not be made or that such Securities may be returned or otherwise held or
disposed of by or through the person to whom they were delivered, and Custodian
shall have no liability for any of the foregoing.
4.4 Payment for Securities Sold, etc. In its sole discretion and from
---------------------------------
time to time, Custodian may credit the Custody Account, prior to actual receipt
of final payment thereof, with (a) proceeds from the sale of Securities which it
has been instructed to deliver against payment, (b) proceeds from the redemption
of Securities or other assets of the Fund, and (c) income from cash, Securities
or other assets of the Fund. Any such credit shall be conditional upon actual
receipt by Custodian of final payment and may be reversed if final payment is
not actually received in full. Custodian may, in its sole discretion and from
time to time, permit the Fund to use funds so credited to the Custody Account in
anticipation of actual receipt of final
-23-
23
payment. Any funds so used shall constitute an advance subject to Section 4.5
below.
4.5 CLEARING CREDIT. Custodian may, in its sole discretion and from time
---------------
to time, advance funds to the Fund to facilitate the settlement of the Fund's
transactions in the Custody Account. Any such advance (a) shall be repayable
-
immediately upon demand made by Custodian, (b) shall be fully secured as
-
provided in Section 10.3 below, and (c) shall bear interest at such rate, and be
-
subject to such other terms and conditions, as Custodian and the Company on
behalf of the Fund may agree.
4.6 FINAL PAYMENT. For purposes of this Agreement, "final payment" means
-------------
payment in funds which are (or have become) immediately available, under
applicable law are irreversible, and are not subject to any security interest,
xxxx, xxxx or other encumbrance.
ARTICLE V
REDEMPTION OF FUND SHARES;
DIVIDENDS AND OTHER DISTRIBUTIONS
---------------------------------
5.1 Transfer of Funds. From such funds as may be available for the
-----------------
purpose in the Custody Account, and upon receipt of Proper Instructions
specifying that the funds are required to redeem Shares or to pay dividends or
other distributions to holders of Shares, Custodian shall transfer each amount
specified in such Proper Instructions to such account of the Fund or of an agent
thereof (other than Custodian), at such bank, as the Fund may designate therein
with respect to such amount.
-24-
24
5.2 Sole Duty of Custodian. Custodian's sole obligation with respect to
----------------------
the redemption of Shares and the payment of dividends and other distributions
thereon shall be its obligation set forth in Section 5.1 above, and Custodian
shall not be required to make any payments to the various holders from time to
time of Shares nor shall Custodian be responsible for the payment or
distribution by the Fund, or any agent designated in Proper Instructions given
pursuant to Section 5.1 above, of any amount paid by Custodian to the account of
the Fund or such agent in accordance with such Proper Instructions.
ARTICLE VI
SEGREGATED ACCOUNTS
-------------------
Upon receipt of Proper Instructions, Custodian shall establish and maintain
a segregated account or accounts for and on behalf of the Fund, into which
account or accounts may be transferred cash and/or Securities, including
Securities maintained in a Depository Account:
(a) in accordance with the provisions of any agreement among the
Company on behalf of the Fund, Custodian and a broker-dealer (or any futures
commission merchant), relating to compliance with the rules of The Options
Clearing Corporation or of any registered national securities exchange (or the
Commodity Futures Trading Commission or any registered contract market), or of
any similar organization or organizations, regarding escrow or other
arrangements in connection with transactions by the Fund,
-25-
25
(b) for purposes of segregating cash or Securities in connection with
securities options purchased or written by the Fund or in connection with
financial futures contracts (or options thereon) purchased or sold by the Fund,
(c) which constitute collateral for loans of Securities made by the
Fund,
(d) for purposes of compliance by the Fund with requirements under the
1940 Act for the maintenance of segregated accounts by registered investment
companies in connection with reverse repurchase agreements, when-issued, delayed
delivery and firm commitment transactions, and short sales of securities, and
(e) for other proper purposes, but only upon receipt of, in addition
to Proper Instructions, a copy of a resolution of the Board of Directors,
certified by an Officer, setting forth the purpose or purposes of such
segregated account and declaring such purposes to be proper purposes of the
Fund.
ARTICLE VII
SECURITIES LENDING TRANSACTIONS
-------------------------------
7.1 TRANSACTIONS. If and to the extent that the necessary funds and
------------
Securities have been entrusted to it under this Agreement (and unless the Fund
gives it Proper Instructions to do otherwise), Custodian from time to time shall
make for the account of the Fund the transfers of funds and deliveries of
Securities which the Fund is required to make pursuant to the Securities Loan
Agreement and shall receive for the account of the Fund the transfers of funds
and deliveries of Securities
-26-
26
which the borrower under the Securities Loan Agreement is required to make
pursuant thereto. Custodian shall make and receive all such transfers and
deliveries pursuant to, and subject to the terms and conditions of, the
Securities Loan Agreement.
7.2 Collateral; Events of Default. Custodian shall daily xxxx to market,
-----------------------------
in the manner provided for in the Securities Loan Agreement, all loans of
Securities which may from time to time be outstanding thereunder. Custodian
shall promptly notify the Fund of any Default under the Securities Loan
Agreement (as such term "Default" is defined therein) of which it has actual
knowledge.
7.3 Securities Loan Agreement. Custodian hereby acknowledges its receipt
-------------------------
from the Company on behalf of the Fund of a copy of the Securities Loan
Agreement. The Fund shall provide Custodian, prior to the effectiveness
thereof, with a copy of any amendment to the Securities Loan Agreement.
ARTICLE VIII
REPURCHASE TRANSACTIONS
-----------------------
8.1 Transactions. If and to the extent that the funds and Securities have
------------
been entrusted to it under this Agreement (and unless the Fund gives it Proper
Instructions to do otherwise), Custodian from time to time shall make for the
account of the Fund the transfers of funds and deliveries of Securities which
the Fund is required to make pursuant to the Master Repurchase Agreement and
shall receive for the account of the Fund the transfers of funds and deliveries
of Securities which the seller
-27-
27
under the Master Repurchase Agreement is required to make pursuant thereto.
Custodian shall make and receive all such transfers and deliveries pursuant to,
and subject to the terms and conditions of, the Master Repurchase Agreement.
8.2 Collateral; Events of Default. Custodian shall daily xxxx to market
-----------------------------
the Securities purchased by the Fund under the Master Repurchase Agreement and
held in the Custody Account, and shall give to the seller thereunder any such
notice as may be required by the Master Repurchase Agreement in connection with
such xxxx-to-market. Custodian shall promptly notify the Fund of any Event of
Default by the seller under the Master Repurchase Agreement (as such term "Event
of Default" is defined therein) of which it has actual knowledge.
8.3 Master Repurchase Agreement. Custodian hereby acknowledges its
---------------------------
receipt from the Company on behalf of the Fund of a copy of the Master
Repurchase Agreement. The Fund shall provide Custodian, prior to the
effectiveness thereof, with a copy of any amendment to the Master Repurchase
Agreement.
ARTICLE IX
CONCERNING THE CUSTODIAN
------------------------
9.1 Standard of Care. Custodian shall be held to the exercise of
----------------
reasonable care in carrying out its obligations under this Agreement, and shall
be without liability to the Fund for any loss, damage, cost, expense (including
attorneys' fees and disbursements), liability or claim which does not arise from
willful misfeasance, bad faith or negligence on the part of
-28-
28
Custodian or reckless disregard by Custodian of its obligations under this
Agreement. Custodian shall be entitled to rely on and may act upon advice of
counsel on all matters, and shall be without liability for any action reasonably
taken or omitted pursuant to such advice. In no event shall Custodian be liable
for special or consequential damages or be liable in any manner whatsoever for
any action taken or omitted upon instructions from the Fund or any agent of the
Company on behalf of the Fund. Custodian shall not be under any obligation at
any time to ascertain whether the Fund is in compliance with the 1940 Act, the
regulations thereunder, the provisions of its charter documents or by-laws, or
its investment objectives, policies and limitations as in effect from time to
time.
9.2 Actual Collection Required. Custodian shall not be liable for, or
--------------------------
considered to be the custodian of, any cash belonging to the Fund or any money
represented by a check, draft or other instrument for the payment of money,
until Custodian or its agents actually receive such cash or collect on such
instrument.
9.3 No Responsibility for Title, etc. So long as and to the extent that
---------------------------------
it is in the exercise of reasonable care, Custodian shall not be responsible for
the title, validity or genuineness of any property or evidence of title thereto
received or delivered by it or its agents.
9.4 Limitation on Duty to Collect. Custodian shall promptly notify the
-----------------------------
Fund whenever any money or property due and
-29-
29
payable from or on account of any Securities held hereunder for the Fund is not
timely received by it. Custodian shall not, however, be required to enforce
collection, by legal means or otherwise, of any such money or other property not
paid when due, but shall receive the proceeds of such collections as may be
effected by it or its agents in the ordinary course of Custodian's custody and
safekeeping business or of the custody and safekeeping business of such agents.
9.5 Express Duties Only. Custodian shall have no duties or obligations
-------------------
whatsoever except such duties and obligations as are specifically set forth in
this Agreement, and no covenant or obligation shall be implied in this Agreement
against Custodian. Custodian shall have no discretion whatsoever with respect
to the management, disposition or investment of the Custody Account and is not a
fiduciary to the Fund.
9.6 Compliance with Laws. Custodian undertakes to comply with all
--------------------
applicable requirements of the Securities Act of 1933, the Securities Exchange
Act of 1934, the 1940 Act and the Commodities Exchange Act and any laws, rules
and regulations of governmental authorities having jurisdiction with respect to
the duties to be performed by Custodian hereunder. Except as specifically set
forth herein, Custodian assumes no responsibility for such compliance by the
Fund.
30
ARTICLE X
INDEMNIFICATION
---------------
10.1 Indemnification. The Fund shall indemnify and hold harmless
---------------
Custodian, any sub-custodian and any nominee of Custodian or any sub-custodian,
from and against any loss, damages, cost, expense (including attorneys' fees and
disbursements), liability (including, without limitation, liability arising
under the Securities Act of 1933, the 1934 Act, the 1940 Act, and any federal or
state securities and/or banking laws) or claim arising directly or indirectly
(a) from the fact that Securities are registered in the name of any such
nominee, or (b) from any action or inaction by Custodian or such sub-custodian
or other agent (i) at the request or direction of or in reliance on the advice
of the Fund or any of its agents, or (ii) upon Proper Instructions, or (c)
generally, from the performance of its obligations under this Agreement,
provided that Custodian, any sub-custodian or any nominee of either of them
shall not be indemnified and held harmless from and against any such loss,
damage, cost, expense, liability or claim arising from Custodian's willful
misfeasance, bad faith, negligence or reckless disregard of its obligations
under this Agreement or, in the case of any sub-custodian or its nominee, from
such sub-custodian's willful misfeasance, bad faith, negligence or reckless
disregard of its obligations under the Agreement under which it is acting.
-31-
10.2 Indemnity to be provided. If the Fund requests Custodian to
------------------------
take any action with respect to Securities, which may, in the opinion of
Custodian, result in Custodian or its nominee becoming liable for the payment of
money or incurring liability of some other form, Custodian shall not be required
to take such action until the Fund shall have provided indemnity therefor to
Custodian in an amount and form satisfactory to Custodian.
10.3 Security. As security for the payment of any present or future
--------
obligation or liability of any kind which the Fund may have to Custodian with
respect to or in connection with the Custody Account or this Agreement, or which
the Fund may otherwise have to Custodian, the Fund hereby pledges to Custodian
all cash, Securities and other property of every kind which is in the Custody
Account or otherwise held for the Fund pursuant to this Agreement, and hereby
grants to Custodian a lien, right of set-off and continuing security interest in
such cash, Securities and other property.
10.4 Limitation. Notwithstanding any other provision of this
----------
Agreement, the obligations and liabilities of the Company on behalf of the Fund
under this Agreement are solely those of the Fund, and neither the Company
generally nor any of its other investment portfolios shall be responsible for
any of such obligations or liabilities.
-32-
ARTICLE XI
FORCE MAJEURE
-------------
Neither Custodian nor the Fund shall be liable for any failure or
delay in performance of its obligations under this Agreement arising out of or
caused, directly or indirectly, by circumstances beyond its reasonable control,
including, without limitation, acts of God; earthquakes; fires; floods; wars;
civil or military disturbances; sabotage; strikes; epidemics; riots; power
failures; computer failure and any such circumstances beyond its reasonable
control as may cause interruption, loss or malfunction of utility,
transportation, computer (hardware or software) or telephone communication
service; accidents; labor disputes; acts of civil or military authority;
governmental actions; or inability to obtain labor, material, equipment or
transportation.
ARTICLE XII
REPRESENTATIONS AND WARRANTIES
------------------------------
Each of the Company on behalf of the Fund and Custodian represents and
warrants for itself that (a) it has all necessary power and authority to perform
its obligations hereunder, (b) the execution and delivery by it of this
Agreement, and the performance by it of its obligations under this Agreement,
have been duly authorized by all necessary action and will not violate any law,
regulation, charter, by-law, or other instrument, restriction or provision
applicable to it or by which it is bound, and (c) this Agreement constitutes a
legal, valid and
-33-
binding obligation of it, enforceable against it in accordance with its terms.
ARTICLE XIII
COMPENSATION OF CUSTODIAN
-------------------------
The Fund shall pay Custodian such fees and charges as are set forth in
the fee schedule annexed hereto as Exhibit C, as such fee schedule may from time
to time be revised by Custodian upon 14 days' prior written notice to the Fund.
Any annual fee or other charges payable by the Fund shall be paid monthly by
automatic deduction from the Custody Account. Expenses incurred by Custodian in
the performance of its services hereunder, and all other proper charges and
disbursements of the Custody Account, shall be charged to the Custody Account by
Custodian and paid therefrom.
ARTICLE XIV
TAXES
-----
Any and all taxes, including any interest and penalties with respect
thereto, which may be levied or assessed under present or future laws or in
respect of the Custody Account or any income thereof shall be charged to the
Custody Account by Custodian and paid therefrom.
ARTICLE XV
AUTHORIZED PERSONS
------------------
15.1 AUTHORIZED PERSONS. Custodian may rely upon and act in
------------------
accordance with any notice, confirmation, instruction or other communication
received by it from the Fund which is reasonably
-34-
believed by Custodian to have been given or signed on behalf of the Fund by any
two of the Authorized Persons (one in the case of Oral Instructions) designated
by the Fund in Exhibit A hereto, as it may from time to time be revised. The
Fund may revise Exhibit A hereto at any time by notice in writing to Custodian
given in accordance with Article XVI below, but no revision of Exhibit A hereto
shall be effective until Custodian actually receives such notice.
15.2 Investment advisers. Custodian may also act in accordance with
-------------------
any Written or Oral Instructions which are reasonably believed by Custodian to
have been given or signed by any two of the Authorized Persons (one in the case
of Oral Instructions) designated by any of the investment advisers of the Fund
specified in Exhibit B hereto (if any) as it may from time to time be revised.
The Fund may reverse Exhibit B hereto at any time by notice in writing to
Custodian given in accordance with Article XVI below, and each investment
adviser specified in Exhibit B hereto (if any) may at any time by like notice
designate an Authorized Person or remove an Authorized Person previously
designated by it, but no revision of Exhibit B hereto (if any) and no
designation or removal by such investment adviser shall be effective until
Custodian actually receives such notice.
15.3 Oral instructions. Custodian may rely upon and act in
-----------------
accordance with Oral Instructions. If Written Instructions confirming Oral
Instructions are not received by Custodian prior to a transaction, it shall in
no way affect the validity of the
-35-
transaction authorized by such Oral Instructions or the authorization of the
Fund to effect such transaction. Custodian shall incur no liability to the Fund
in acting upon Oral Instructions. To the extent such Oral Instructions vary
from any confirming Written Instructions, Custodian shall advise the Fund of
such variance but unless confirming Written Instructions are timely received,
such Oral Instructions will govern. Either Custodian or Fund may electronically
record any instructions given by telephone and any other telephone discussions
with respect to the Custody Account.
ARTICLE XVI
NOTICES
-------
Unless otherwise specified herein, all demands, notices, instructions,
and other communications to be given hereunder shall be sent, delivered or given
to the recipient at the address set forth after its name hereinbelow:
If to the Fund:
n/i LARGER CAP VALUE FUND
THE RBB FUND
Bellevue Park Corporate Center
000 Xxxxxxxx Xxxxxxx (Ste 100)
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Xx.
----------------------
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Custodian:
CUSTODIAL TRUST COMPANY
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000-0000
Attention: Vice President - Trust Operations
---------------------------------
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
-36-
or at such other address as either party shall have provided to the other by
notice given in accordance with this Article XVI. Writing shall include
transmissions by or through teletype, facsimile, central processing unit
connection, on-line terminal and magnetic tape.
ARTICLE XVII
TERMINATION
-----------
Either party hereto may terminate this Agreement by giving to the
other party a notice in writing specifying the date of such termination, which
shall be not less than sixty (60) days after the date of the giving of such
notice. Upon the date set forth in such notice this Agreement shall terminate,
and Custodian shall, upon receipt of a notice of acceptance by the successor
custodian, on that date (a) deliver directly to the successor custodian or its
agents all Securities (other than Securities held in a Book-Entry System or
Securities Depository) and cash then owned by the Fund and held by Custodian as
custodian, and (b) transfer any Securities held in a Book-Entry System or
Securities Depository to an account of or for the benefit of the Fund, provided
that the Fund shall have paid to Custodian all fees, expenses and other amounts
to the payment or reimbursement of which it shall then be entitled.
-37-
ARTICLE XVIII
MISCELLANEOUS
-------------
18.1 Business days. Nothing contained in this Agreement shall
-------------
require Custodian to perform any function or duties on a day other than a
Business Day.
18.2 Governing law. This Agreement shall be governed by and
-------------
construed in accordance with the laws of the State of New York, without regard
to the conflict of law principles thereof.
18.3 References to custodian. The Fund shall not circulate any
-----------------------
printed matter which contains any reference to Custodian without the prior
written approval of Custodian, excepting printed matter contained in the
prospectus or statement of additional information for the Fund and such other
printed matter as merely identifies Custodian as custodian for the Fund. The
Fund shall submit printed matter requiring approval to Custodian in draft form,
allowing sufficient time for review by Custodian and its counsel prior to any
deadline for printing.
18.4 No waiver. No failure by either party hereto to exercise, and
---------
no delay by such party in exercising, any right hereunder shall operate as a
waiver thereof. The exercise by either party hereto of any right hereunder
shall not preclude the exercise of any other right, and the remedies provided
herein are cumulative and not exclusive of any remedies provided at law or in
equity.
18.5 Amendments. This Agreement cannot be changed orally and no
----------
amendment to this Agreement shall be effective unless
-38-
evidenced by an instrument in writing executed by the parties hereto.
18.6 Counterparts. This Agreement may be executed in one or more
------------
counterparts, and by the parties hereto on separate counterparts, each of which
shall be deemed an original but all of which together shall constitute but one
and the same instrument.
18.7 Severability. If any provision of this Agreement shall be
------------
invalid, illegal or unenforceable in any respect under any applicable law, the
validity, legality and enforceability of the remaining provisions shall not be
affected or impaired thereby.
18.8 Successors and assigns. This Agreement shall be binding upon
----------------------
and shall inure to the benefit of the parties hereto and their respective
successors and assigns; provided, however, that this Agreement shall not be
-------- -------
assignable by either party hereto without the written consent of the other
party. Any purported assignment in violation of this Section 18.8 shall be
void.
18.9 Jurisdiction. Any suit, action or proceeding with respect to
------------
this Agreement may be brought in the Supreme Court of the State of New York,
County of New York, or in the United States District Court for the Southern
District of New York, and the parties hereto hereby submit to the non-exclusive
jurisdiction of such courts for the purpose of any such suit, action or
proceeding, and hereby waive for such purpose any other
-39-
preferential jurisdiction by reason of their present or future domicile or
otherwise.
18.10 Headings. The headings of sections in this Agreement are for
--------
convenience of reference only and shall not affect the meaning or construction
of any provision of this Agreement.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed in its name and on its behalf by its representative
thereunto duly authorized, all as of the day and year first above written.
THE RBB FUND, INC.
WITH RESPECT TO AND ON BEHALF OF
n/i LARGER CAP VALUE FUND
By:
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: President and Treasurer
CUSTODIAL TRUST COMPANY
By:
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
-40-
EXHIBIT A
---------
AUTHORIZED PERSONS
Set forth below are the names and specimen signatures of the persons
authorized by n/i LARGER CAP VALUE FUND to administer the Custody Account.
NAME SIGNATURE
---- ---------
--------------------------- -----------------------------
--------------------------- -----------------------------
--------------------------- -----------------------------
--------------------------- -----------------------------
-41-
EXHIBIT B
---------
INVESTMENT ADVISERS
Numeric Investors L.P.
-42-
EXHIBIT C
---------
CUSTODY FEES AND TRANSACTION CHARGES
Domestic fees. The Fund shall pay Custodian the following fees for assets
maintained in the United States ("Domestic Assets") and charges for transactions
in the United States, all such fees and charges to be payable monthly:
(1) an annual fee of the greater of 0.015% (one and one-half basis points)
per annum of the value of the Domestic Assets in the Custody Account or $5,000,
such fee to be based upon the total market value of such Domestic Assets as
determined on the last Business Day of the month for which such fee is charged;
(2) a transaction charge of $12 for each receive or deliver of book-entry
Securities into or from the Custody Account (but not for any such receive or
deliver of book-entry Securities loaned by the Portfolio or constituting
collateral for a loan of Securities, or any such receive or deliver in a
repurchase transaction representing (a) a cash sweep investment for the Fund's
account or (b) the investment by the Fund of cash collateral for a loan of
Securities);
(3) a transaction charge of $25 for each receive or deliver into or from
the Custody Account of Securities in physical form;
(4) a transaction charge for each repurchase transaction in the Custody
Account which represents a cash sweep investment for the Fund's account,
computed, on the basis of a 360-day year and for the actual number of days such
repurchase transaction is outstanding, at a rate of 0.10% (ten basis points) per
annum on
-43-
the amount of the purchase price paid by the Fund in such repurchase
transaction;
(5) a charge of $10 for each "free" transfer of funds from the Custody
Account;
(6) an administrative fee for each purchase in the Custody Account of
shares or other interests in a money market or other fund, which purchase
represents a cash sweep investment for the Fund's account, computed for each day
that there is a positive balance in such fund to equal 1/365th of 0.10% (ten
basis points) on the amount of such positive balance for such day; and
(7) a service charge for each holding of Securities or other assets sold by
way of private placement or in such other manner as to require services by
Custodian which in its reasonable judgment are materially in excess of those
ordinarily required for the holding of publicly traded Securities in the United
States.
International Fees. The Fund shall pay Custodian fees for assets
------------------
maintained outside the United States ("Foreign Assets") and charges for
transactions outside the United States (including, without limitation, charges
for funds transfers and tax reclaims) in accordance with such schedule of fees
and charges for each country in which Foreign Assets are held as Custodian shall
from time to time provide to the Fund. Any asset-based fee shall be based upon
the total market value of the applicable Foreign Assets as determined on the
last Business Day of the month for which such fee is charged.
-44-
