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CITIBANK
A member of citigroup
GLOBAL
CUSTODIAL SERVICES AGREEMENT
THE XXXXXX TRUST
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GCSA 2000 V.1.9.2000 (Std/Neg)
CITIBANK
A member of citigroup
TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION...........................................1
2. ESTABLISHMENT OF ACCOUNTS................................................2
3. CUSTODY ACCOUNT PROCEDURES...............................................3
4. CASH ACCOUNT PROCEDURES..................................................3
5. INSTRUCTIONS.............................................................3
6. PERFORMANCE BY THE CUSTODIAN.............................................4
7. TAX STATUS/WITHHOLDING TAXES.............................................5
8. USE OF THIRD PARTIES.....................................................5
9. REPRESENTATIONS..........................................................7
10. SCOPE OF RESPONSIBILITY..................................................8
11 SUBROGATION..............................................................9
12. INDEMNITY................................................................9
13. LIEN AND SET OFF.........................................................9
14. FEES AND EXPENSES........................................................9
15. CITIGROUP ORGANISATION INVOLVEMENT.......................................9
16. RECORDS AND ACCESS......................................................10
17. INFORMATION.............................................................10
18. ADVERTISING.............................................................10
19. TERMINATION.............................................................10
20. GOVERNING LAW AND JURISDICTION..........................................11
21. MISCELLANEOUS...........................................................11
SIGNATURES..............................................................12
SCHEDULES:
o Schedule A
o Fee Schedule
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GCSA 2000 V.1.9.2000 (Std/Neg)
CITIBANK
A member of citigroup
THIS GLOBAL CUSTODIAL SERVICES AGREEMENT is made as of February __, 2004, by and
between The Xxxxxx Trust, a business trust organized under the laws of the State
of Delaware (the "CLIENT") and Citibank, N.A. acting through its offices located
in New York, New York (the "CUSTODIAN").
WHEREAS, the Custodian represents to the Client that it is eligible to serve as
a custodian for a management investment company registered under the Investment
Company Act of 1940, as amended (the "1940 Act"), and
WHEREAS, The Client is a management investment company registered under the 1940
Act with separate portfolios as listed on Schedule A to this Agreement (each of
the funds being hereinafter referred to as the "Fund"), each of such Funds
acting on its own behalf separately from all the other Funds and not jointly or
jointly and severally with any of the other funds, and
WHEREAS, the Client wishes to appoint the Custodian as the custodian for the
Funds,
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein
contained, the parties hereto agree as follows:
1. DEFINITIONS AND INTERPRETATION
------------------------------
(A) DEFINITIONS.
"AUTHORIZED PERSON," means the Client or any person (including any
individual or entity) authorized by the Client in a notice reasonably
acceptable to the Custodian to act on Client's behalf or on behalf of the
applicable Fund in the performance of any act, discretion or duty under
this Agreement (including, for the avoidance of doubt, any officer or
employee of such person).
"CASH" means all cash or cash equivalents in any currency received and held
on the terms of this Agreement.
"CITIGROUP ORGANIZATION" means Citigroup, Inc. and any company or other
entity of which Citigroup, Inc. is directly or indirectly a shareholder or
owner. For purposes of this Agreement, each branch of Citibank, N.A. shall
be a separate member of the Citigroup Organization.
"CLEARANCE SYSTEM" means any clearing agency, settlement system or
depository (including any entity that acts as a system for the central
handling of Securities in the country where it is incorporated or organized
or that acts as a transnational system for the central handling of
Securities) used in connection with transactions relating to Securities and
any nominee of the foregoing.
"FEE SCHEDULE" means the schedule referred to in Section 14, as annexed
hereto.
"INSTRUCTIONS" means any and all instructions (including approvals,
consents and notices) received by the Custodian from, or reasonably
believed by the Custodian to be from, any Authorized Person, including any
instructions communicated through any manual or electronic medium or system
agreed between the Authorized Person and the Custodian.
"SECURITIES" means any financial asset (other than Cash) from time to time
held for the benefit of the Fund on the terms of this Agreement.
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"TAXES" means all taxes, levies, imposts, charges, assessments, deductions,
withholdings and related liabilities, including additions to tax, penalties
and interest imposed on or in respect of (i) Securities or Cash, (ii) the
transactions effected under this Agreement or (iii) the Fund; provided that
"Taxes" does not include income or franchise taxes imposed on or measured
by the net income of the Custodian or its agents.
(B) INTERPRETATION.
References in this Agreement to the Client shall mean the Client acting
individually and separately on behalf of each Fund. The appointment of the
Custodian subject to the terms and provisions of this Agreement shall
constitute a separate appointment by the Client on behalf of each Fund.
Except as otherwise agreed, each reference herein to Accounts and to
Securities and Cash shall mean the Accounts, Securities and Cash
maintained, received, delivered and held separately for Fund and not on an
omnibus basis or aggregate basis for all of the Funds. The Client and the
Custodian agree that the Client shall be the primary obligor with respect
to any obligations of the Client or any Fund specified in this Agreement;
provided, however, the obligations of the Client with respect to a Fund
shall be limited to the extent such obligations relate to the Accounts or
transactions of that Fund. Custodian may seek to enforce the obligations of
the Client in respect to a Fund's Accounts and transactions effected under
this Agreement directly against the Accounts and the Securities and Cash
held hereunder for the Fund but only to the extent such obligations relate
to the Accounts or transactions of that Fund. Upon request, the Client
shall reasonably identify how any obligation of the Client provided under
this Agreement should be allocated to a Fund or to any Accounts maintained
hereunder for such Fund.
2. ESTABLISHMENT OF ACCOUNTS
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(A) ACCOUNTS. The Client authorizes the Custodian to establish on its books,
pursuant to the terms of this Agreement, (i) a custody account or accounts
(the "Custody Account") and (ii) a cash account or accounts (the "Cash
Account"). The Custody Account will be a custody account for the receipt,
safekeeping and maintenance of Securities, and the Cash Account will be a
current account for Cash.
(B) ACCEPTANCE OF SECURITIES AND CASH. The Custodian will determine in its
reasonable discretion whether to accept (i) for custody in the Custody
Account, Securities of any kind and (ii) for deposit in the Cash Account,
Cash in any currency.
(C) DESIGNATION OF ACCOUNTS.
(i) The Custody Account will be in the name of the Fund or such other name as
the Client may reasonably designate and will indicate that Securities do
not belong to the Custodian and are segregated from the Custodian's assets.
(ii) The Cash Account will be in the name of the Fund or such other name as the
Client may reasonably designate and will be held by the Custodian as
banker.
(D) SEGREGATION.
(i) Subject to 8(b)(iii) and (iv), to the extent reasonably practicable the
Custodian will hold Securities with a subcustodian only in an account that
holds exclusively assets held by the Custodian for its customers. The
Custodian will direct each subcustodian to identify on its books that
Securities are held for the account of the Custodian as custodian for its
customers. The Custodian will direct each subcustodian, to the extent
practicable, to hold Securities in a Clearance System only in an account of
the subcustodian that holds exclusively assets held by the subcustodian for
its customers.
(ii) Any Securities deposited by the Custodian with a subcustodian will be
subject only to the instructions of the Custodian, and any Securities held
in a Clearance System for the account of a subcustodian will be subject
only to the instructions of the subcustodian.
(iii)The Custodian shall require the subcustodian to agree that Securities will
not be subject to any right, charge, security interest, lien or claim of
any kind in favor of the subcustodian.
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3. CUSTODY ACCOUNT PROCEDURES
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(A) CREDITS TO THE CUSTODY ACCOUNT. The Custodian is not obligated to credit
Securities to the Custody Account before receipt of such Securities by
final settlement.
(B) DEBITS TO THE CUSTODY ACCOUNT. If the Custodian has received Instructions
that would result in the delivery of Securities exceeding credits to the
Custody Account for that Security, the Custodian may reject the
Instructions or may decide which deliveries it will make (in whole or in
part and in the order it selects).
(C) DENOMINATION OF SECURITIES. The Client and the Fund shall bear the risk and
expense associated with investing in Securities denominated in any
currency.
4. CASH ACCOUNT PROCEDURES
-----------------------
(A) CREDITS AND DEBITS TO THE CASH ACCOUNT. The Custodian is not obliged to
make a credit or debit to the Cash Account before receipt by the Custodian
of a corresponding and final payment in cleared funds. If the Custodian
makes a credit or debit before such receipt, the Custodian may at any time
reverse all or part of the credit or debit (including any interest
thereon), make an appropriate entry to the Cash Account, and if it
reasonably so decides, require repayment of any amount corresponding to any
debit.
(B) DEBIT BALANCES IN THE CASH ACCOUNT. The Custodian is not obliged to make
any debit to the Cash Account, which might result in or increase a debit
balance. The Custodian may make any debit to the Cash Account even if this
results in (or increases) a debit balance. If the total amount of debits to
the Cash Account at any time would otherwise result in a debit balance or
exceed the immediately available funds credited to the Cash Account, the
Custodian may decide which debits it will make (in whole or in part and in
the order it selects).
(C) PAYMENTS. The Custodian may at any time cancel any extension of credit. The
Client will transfer to the Custodian on closure of the Cash Account and
otherwise on demand from the Custodian sufficient immediately available
funds to cover any debit balance on the Cash Account or any other extension
of credit and any interest, fees and other amounts owed.
(D) FOREIGN CURRENCY RISKS. The Client and the Fund shall bear the risk and
expense associated with Cash denominated in any currency.
5. INSTRUCTIONS
------------
The Custodian is entitled to rely and act upon Instructions of any
Authorized Person until the Custodian has received notice of any change
from the Client and has had a reasonable time to note and implement such
change. The Custodian is authorized to rely upon any Instructions received
by any means, provided that the Custodian and the Authorized Person have
agreed upon the means of transmission and the method of identification for
the Instructions. In particular:
(i) The Authorized Person and the Custodian will comply with security
procedures designed to verify the origination of Instructions.
(ii) The Custodian is not responsible for errors or omissions made by the
Authorized Person or resulting from fraud or the duplication of any
Instruction by the Authorized Person, and the Custodian may act on any
Instruction by reference to an account number only, even if any account
name is provided.
(iii)The Custodian may act on an Instruction if it reasonably believes the
Instruction contains sufficient information.
(iv) The Custodian may decide not to act on an Instruction where it reasonably
doubts its contents, authorization, origination or compliance with any
security procedures and will promptly notify the Authorized Person of its
decision.
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CITIBANK
A member of citigroup
(v) If the Custodian acts on any Instruction sent manually (including facsimile
or telephone), then, if the Custodian complies with the security
procedures, the Client and the Fund will be responsible for any loss the
Custodian may incur in connection with that Instruction. The Client
expressly acknowledges that the Client is aware that the use of manual
forms of communication to convey Instructions increases the risk of error,
security and privacy issues and fraudulent activities.
(vi) Instructions are to be given in the English language.
(vii)The Custodian is obligated to act on Instructions only within applicable
cut-off times on banking days when the Custodian and the applicable
financial markets are open for business.
(viii)In some securities markets, securities deliveries and payments therefor
may not be or are not customarily made simultaneously. Accordingly,
notwithstanding Instruction to deliver Securities against payment or to pay
for Securities against delivery, the Custodian may make or accept payment
for or delivery of Securities at such time and in such form and manner as
is in accordance with relevant local law and practice or with the customs
prevailing in the relevant market.
6. PERFORMANCE BY THE CUSTODIAN
----------------------------
(A) CUSTODIAL DUTIES REQUIRING INSTRUCTIONS. The Custodian shall carry out the
following actions only upon receipt of and in accordance with specific
Instructions:
(i) make payment for and/or receive any Securities or deliver or dispose of any
Securities, except as otherwise specifically provided for in this
Agreement;
(ii) deal with rights, conversions, options, warrants and other similar
interests or any other discretionary right in connection with Securities;
and
(iii)carry out any action affecting Securities or the Custody Account or Cash
or the Cash Account other than those specified in Section 6(B) below, but
in each instance subject to the agreement of the Custodian.
(B) NON-DISCRETIONARY CUSTODIAL DUTIES. Absent a contrary Instruction, the
Custodian shall carry out the following without further Instructions:
(i) in the Client's or the Fund's name or on its behalf, sign any affidavits,
certificates of ownership and other certificates and documents relating to
Securities that may be required (i) to obtain any Securities or Cash or
(ii) by any tax or regulatory authority;
(ii) collect, receive, and/or credit the Custody Account or Cash Account, as
appropriate, with all income, payments and distributions in respect of
Securities and any capital arising out of or in connection with Securities
(including all Securities received by the Custodian as a result of a stock
dividend, bonus issue, share sub-division or reorganization, capitalization
of reserves or otherwise) and take any action necessary and proper in
connection therewith;
(iii)exchange interim or temporary receipts for definitive certificates, and
old or over stamped certificates for new certificates;
(iv) notify the Client of notices, circulars, reports and announcements that the
Custodian has received in the course of acting in the capacity of Custodian
concerning Securities held in the Custody Account that require
discretionary action;
(v) make any payment by debiting the Cash Account or any other designated
account of the Client with the Custodian as required to effect any
Instruction; and
(vi) attend to all non-discretionary matters in connection with anything
provided in this Section 6(B) or any Instruction.
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7. TAX STATUS/WITHHOLDING TAXES
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(A) INFORMATION. The Client will provide the Custodian, from time to time and
in a timely manner, with information and proof (copies or originals) as the
Custodian reasonably requests, as to the Fund's tax status or residence.
Information and proof may include, as appropriate, executing certificates,
making representations and warranties, or providing other information or
documents in respect of Securities, as the Custodian deems necessary or
proper to fulfill obligations under applicable law.
(B) PAYMENT. If any Taxes become payable with respect to any payment to be made
to the Fund, such Taxes will be payable by the Fund and the Custodian may
withhold the Taxes from such payment. The Custodian may withhold any Cash
held or received with respect to the Cash Account and apply such Cash in
satisfaction of such Taxes. If any Taxes become payable with respect to any
prior payment made to the Cash Account for the Fund by the Custodian, the
Custodian may withhold any Cash in satisfaction of such prior Taxes. The
Client and the Fund shall remain liable for any deficiency.
(C) TAX RELIEF. In the event the Client requests that the Custodian provide tax
relief services and the Custodian agrees to provide such services, the
Custodian shall apply for appropriate tax relief (either by way of reduced
tax rates at the time of an income payment or retrospective tax reclaims in
certain markets as agreed from time to time); provided the Client provides
to the Custodian such documentation and information as to the Fund as is
necessary to secure such tax relief. However, in no event shall the
Custodian be responsible, or liable, for any Taxes resulting from the
inability to secure tax relief, or for the failure of the Fund to obtain
the benefit of credits, on the basis of foreign taxes withheld, against any
income tax liability.
8. USE OF THIRD PARTIES
--------------------
(A) GENERAL AUTHORITY.
(i) The Custodian is hereby authorized to appoint subcustodians and
administrative support providers as its delegates and to use or participate
in market infrastructures and Clearance Systems to perform any of the
duties of the Custodian under this Agreement.
(ii) Subcustodians are those persons utilized by the Custodian for the
safekeeping, clearance and settlement of Securities.
(iii)Administrative support providers are those persons utilized by the
Custodian to perform ancillary services of a purely administrative nature
such as couriers, messengers or other commercial transport systems.
(iv) Market infrastructures are public utilities, external telecommunications
facilities and other common carriers of electronic and other messages, and
external postal services. Market infrastructures are not delegates of the
Custodian.
(v) Securities deposited with Clearance Systems hereunder will be subject to
the laws, rules, and statements of principle and practices of such
Clearance Systems. Clearance Systems are not delegates of the Custodian.
(B) RESPONSIBILITY.
(i) The Custodian shall act in good faith and use reasonable care in the
selection and continued appointment of subcustodians and
administrative support providers.
(ii) The Custodian may deposit or procure the deposit of Securities with
any Clearance System as required by law, regulation or best market
practice. The Custodian has no responsibility for selection or
appointment of, or for performance by, any Clearance System or market
infrastructure.
(iii)The Custodian agrees that any subcustodian will be a bank as defined
in Section 2(a)(5) of the 1940 Act meeting the requirements of a
custodian under Section 17(f) of the 1940 Act or a "Qualified Foreign
Bank" meeting the requirements of an "Eligible Foreign Custodian" as
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specified in Rule 17f-5 under the 1940 Act. With regard to each
Eligible Foreign Custodian, the Custodian agrees to accept the
responsibility it would have assumed if it had been delegated
responsibility to serve as the Fund's "Foreign Custody Manager" as
defined in Rule 17f-5(a)(3) under the 1940 Act, in respect to the
Client's foreign investments held from time to time by the Custodian
with any subcustodian that is an Eligible Foreign Custodian. Foreign
investments are any Securities for which the primary market is outside
the United States of America.
In regard to each selection and appointment of a subcustodian that is
an Eligible Foreign Custodian, the Custodian shall:
(1) select the Eligible Foreign Custodian to serve as foreign
custodian and place and maintain the Fund's foreign investments
with respect to the relevant market with such foreign custodian;
(2) in selecting an Eligible Foreign Custodian, first determine that
foreign investments placed and maintained in the safekeeping of
the Eligible Foreign Custodian shall be subject to reasonable
care, based on the standards applicable to custodians in the
relevant market, after having considered all factors relevant to
the safekeeping of such investments including, without
limitation, those factors set forth in Rule 17f-5;
(3) enter into written agreements with the Eligible Foreign Custodian
selected by the Custodian hereunder;
(4) determine that the written contract with the Eligible Foreign
Custodian requires that the Eligible Foreign Custodian will
provide reasonable care for the foreign investments, based on the
standards applicable to custodians in the relevant market, and
that all such contracts, rules, practices and procedures satisfy
the requirements of Rule 17f-5;
(5) provide written reports (x) notifying the Client of the placement
of foreign investments with the Eligible Foreign Custodian, such
reports to be provided at such time as the Client deems
reasonable and appropriate, but not less than quarterly, and (y)
promptly notifying the Client of the occurrence of any material
change in the arrangements with the Eligible Foreign Custodian;
and
(6) monitor the continued appropriateness of (x) maintaining the
foreign investments with the Eligible Foreign Custodian selected
hereunder and (y) the governing contractual arrangement; it being
understood, however, that in the event the Custodian shall
determine that the Eligible Foreign Custodian would no longer
afford the foreign investments reasonable care, the Custodian
shall promptly so advise the Client and shall then act in
accordance with Instructions (as defined in the Agreement) with
respect to the disposition of the foreign investments; and
Nothing in this paragraph shall relieve the Custodian of any
responsibility otherwise provided in the Agreement for loss or damage
suffered by the Client or the Fund from an act of negligence or
willful misconduct on the part of the Custodian.
Nothing in this Agreement shall require the Custodian to make any
selection that would entail consideration of any factor reasonably
related to the systemic risk of holding assets in a particular country
including, but not limited to, such country's financial infrastructure
and prevailing settlement practices. The Custodian agrees to provide
to the Client such information relating to such risk as the Client
shall reasonably request from time to time and such other information
as the Custodian generally makes available to customers with regard to
such countries and risk.
(iv) The Custodian agrees that in connection with Securities settled
within the United States it will meet the requirements specified
in Rule 17f-4 under the 1940 Act with respect to the use of
Clearance Systems. The Custodian may deposit and/or maintain
assets of the Fund that consist of foreign investments only in a
Clearance System located outside of the United States of
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America that the Custodian has determined satisfies the
requirements of Rule 17f-7(b)(1) as an Eligible Securities
Depository, as defined therein. In such manner as the Custodian
deems reasonable, the Custodian shall give the Client prompt
notice of any material change known to the Custodian that would
adversely effect the Custodian's determination that a Clearance
System is an Eligible Securities Depository. The Custodian shall
provide the Client with an analysis (in form and substance as
reasonably determined by the Custodian) of the custody risks
associated with maintaining securities with each Eligible
Securities Depository in accordance with Rule 17f-7. The
Custodian shall monitor such custody risks on a continuing basis
and in such manner as the Custodian deems reasonable and shall
promptly notify the Client of any adverse material changes in
such risks in accordance with Rule.
(1) In performing its obligations under this Section 8(B)(iv),
the Custodian may obtain information from sources the
Custodian believes to be reliable, but the Custodian does
not warrant its completeness or accuracy and has no duty to
verify or confirm any such information. The Custodian is not
obligated to make any determination regarding whether any
Eligible Securities Depository provides reasonable care for
foreign investments or to provide any information or
evaluation comparing any Eligible Securities Depository to
any other Clearance System or any existing or proposed
standards for securities depositories.
(2) Upon the receipt of Instructions, the Custodian shall
withdraw securities from any Clearance System to the extent
and as soon as reasonably practicable; provided, however,
the Custodian shall have no obligation to obtain, safekeep
or provide any services in respect of any certificated or
physical security in any jurisdiction where the Custodian
does not offer or provide such services generally to
customers within that jurisdiction.
(C) SHAREHOLDERS VOTING. The Custodian shall provide shareholder-voting
services for Securities held in the Custody Account only upon the terms and
conditions separately agreed to by the Custodian and the Client.
9. REPRESENTATIONS
---------------
(A) GENERAL. The Client and the Custodian each represents at the date this
Agreement is entered into and any custodial service is used or provided
that:
(i) It is duly organized and in good standing in every jurisdiction where it is
required so to be;
(ii) It has the power and authority to sign and to perform its obligations under
this Agreement;
(iii)This Agreement is duly authorized and signed and is its legal, valid and
binding obligation;
(iv) Any consent, authorization or instruction required in connection with its
execution and performance of this Agreement has been provided by any
relevant third party;
(v) Any act required by any relevant governmental or other authority to be done
in connection with its execution and performance of this Agreement has been
or will be done (and will be renewed if necessary); and
(vi) Its performance of this Agreement will not violate or breach any applicable
law, regulation, contract or other requirement.
(B) CLIENT. The Client also represents at the date this Agreement is entered
into and any custodial service is used or provided that:
(i) It has authority to deposit the Securities received in the Custody Account
and the Cash in the Cash Account and there is no claim or encumbrance that
adversely affects any delivery of Securities or payment of Cash made in
accordance with this Agreement;
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(ii) Where it acts as an agent on behalf of any of its own customers, whether or
not expressly identified to the Custodian from time to time, any such
customers shall not be customers or indirect customers of the Custodian
except as expressly provided in this Agreement; and
(iii)Except as set forth in this Agreement, it has not relied on any oral or
written representation made by the Custodian or any person on its behalf.
10. SCOPE OF RESPONSIBILITY
-----------------------
(A) STANDARD OF CARE. Custodian will use reasonable care and diligence with
respect to the safekeeping of property in each Account and, except as
otherwise expressly provided herein, in carrying out its obligations under
this Agreement.
(B) LIMITATIONS ON LOSSES. The Custodian will not be responsible for any loss
or damage suffered by the Client or the Fund unless the loss or damage
results from the Custodian's negligence, willful misconduct or fraud or the
negligence, willful misconduct or fraud of its nominees or any subcustodian
or administrative support providers; in the event of such negligence or
willful misconduct the liability of the Custodian in connection with the
loss or damage will not exceed direct damages to the Client or the Fund.
Under no circumstances will the Custodian be liable to the Client or the
Fund for consequential loss or damage, even if advised of the possibility
of such loss or damage.
(C) LIMITATIONS ON THE CUSTODIAN'S RESPONSIBILITY.
(i) GENERAL. The Custodian is responsible for the performance of only those
duties as are expressly set forth herein, including the performance of any
Instruction given in accordance with this Agreement. The Custodian shall
have no implied duties or obligations.
(ii) SOLE OBLIGATIONS OF THE CUSTODIAN. The Client understands and agrees that
(i) the obligations and duties of the Custodian will be performed only by
the Custodian and are not obligations or duties of any other member of the
Citigroup Organization (including any branch or office of the Custodian)
and (ii) the rights of the Client and the Fund with respect to the
Custodian extend only to such Custodian and, except as provided by law, do
not extend to any other member of the Citigroup Organization.
(iii)NO LIABILITY FOR THIRD PARTIES. Except as provided in Section 8 hereof,
the Custodian is not responsible for the acts, omissions, defaults or
insolvency of any third party, including, but not limited to, any broker,
counterparty or issuer of Securities.
(iv) PERFORMANCE SUBJECT TO LAWS. The Client understands and agrees that the
Custodian's performance of this Agreement is subject to the relevant local
laws, regulations, decrees, orders and government acts, and the rules,
operating procedures and practices of any relevant stock exchange,
Clearance System or market where or through which Instructions are to be
carried out and to which the Custodian is subject and as exist in the
country in which any Securities or Cash are held.
(v) PREVENTION OF PERFORMANCE. The Custodian will not be responsible for any
failure to perform any of its obligations (nor will it be responsible for
any unavailability of funds credited to the Cash Account) if such
performance is prevented, hindered or delayed by a Force Majeure Event, and
in such case its obligations will be suspended for so long as the Force
Majeure Event continues. "Force Majeure Event" means any event due to any
cause beyond the reasonable control of the Custodian, such as restrictions
on convertibility or transferability, requisitions, involuntary transfers,
unavailability of communications systems, sabotage, fire, flood, explosion,
acts of God, civil commotion, strikes or industrial action of any kind,
riots, insurrection, war or acts of government.
(vi) CLIENT'S REPORTING OBLIGATIONS. The Client or the Fund shall be solely
responsible for all filings, tax returns and reports on any transactions in
respect of Securities or Cash or relating to Securities or Cash as may be
required by any relevant authority, whether governmental or otherwise.
(vii)VALIDITY OF SECURITIES. The Custodian shall exercise reasonable care in
receiving Securities but does not warrant or guarantee the form,
authenticity, value or validity of any Security received by the Custodian.
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If the Custodian becomes aware of any defect in title or forgery of any
Security, the Custodian shall promptly notify the Client.
(viii)CAPACITY OF CUSTODIAN. The Custodian is not acting under this Agreement
as an investment manager, nor as an investment, legal or tax adviser to the
Client or the Fund, and the Custodian's duty is solely to act as a
Custodian in accordance with the terms of this Agreement.
(ix) FORWARDED INFORMATION. The Custodian is not responsible for the form,
accuracy or content of any notice, circular, report, announcement or other
material or information provided under Section 6(B)(iv) of this Agreement
not prepared by the Custodian, including the accuracy or completeness of
any translation provided by the Custodian in regard to such forwarded
communication.
11. SUBROGATION
-----------
To the extent permissible by law or regulation and upon the Client's
request, the Client and the Fund shall be subrogated to the rights of the
Custodian with respect to any claim for any loss, damage or claim suffered
by the Client or the Fund, in each case to the extent that the Custodian
fails to pursue any such claim or the Client is not made whole in respect
of such loss, damage or claim.
12. INDEMNITY
---------
(A) INDEMNITY TO THE CUSTODIAN. The Client agrees to indemnify the Custodian
and to defend and hold the Custodian harmless from all losses, costs,
damages and expenses (including reasonable legal fees) and liabilities for
any claims, demands or actions (each referred to as a "Loss"), incurred by
the Custodian in connection with this Agreement, except any Loss resulting
from the Custodian's (or its subcustodians' or administrative support
providers') negligence, willful misconduct or fraud. Under no circumstances
will the Client be liable to the Custodian for consequential loss or
damage, even if advised of the possibility of such loss or damage.
(B) CLIENT'S DIRECT LIABILITY. The disclosure by the Client to the Custodian
that the Client has entered into this Agreement as the agent or
representative of another person shall not relieve the Client of any of its
obligations under this Agreement.
(C) INDEMNITY TO THE CLIENT. The Custodian agrees to indemnify the Client and
to defend and hold the Client harmless from all losses, costs, damages and
expenses (including reasonable legal fees) and liabilities for any claims,
demands or actions (each referred to as a "Loss"), incurred by the Client
to the extent any Loss results from the Custodian's (or its subcustodians'
or administrative support providers') negligence, willful misconduct or
fraud; provided, however the Custodian's liability for any Loss shall not
exceed the Custodian's responsibility for damages as specified in Section
10(B) of this Agreement together with reasonable attorneys' fees. Under no
circumstances will the Custodian be liable to the Client for consequential
loss or damage, even if advised of the possibility of such loss or damage.
13. LIENS AND SET OFF
-----------------
(A) LIENS. In addition to any other remedies available to the Custodian under
applicable law, the Custodian shall have, and the Client hereby grants on
behalf of each Fund, a continuing general lien on all Securities until the
satisfaction of liabilities arising under this Agreement of the Client or
the Fund to the Custodian in respect to any fees and expenses or credit
exposures incurred in the performance of services under this Agreement.
(B) SET OFF. To the extent permitted by applicable law and in addition to any
other remedies available to the Custodian under applicable law, the
Custodian may, without prior notice to the Client or the Fund, set off any
payment obligation owed to it by the Client or the Fund in connection with
all liabilities arising under this Agreement against any payment obligation
owed by it to the Fund under this Agreement regardless of the place of
payment or currency of either obligation (and for such purpose may make any
currency conversion necessary).
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14. FEES AND EXPENSES
-----------------
The Client agrees to pay all fees, charges and obligations incurred from
time to time for any services pursuant to this Agreement as determined in
accordance with the terms of the Fee Schedule, which may be changed from
time to time by written agreement by the Client and the Custodian, together
with any other amounts payable to the Custodian under this Agreement. The
Custodian may debit the Cash Account to pay any such fees, charges and
obligations with regard to the Fund.
15. CITIGROUP ORGANIZATION INVOLVEMENT
----------------------------------
The Client agrees and understands that any member of the Citigroup
Organization can engage as principal or otherwise in any transaction
effected by the Client or by any person for its account and benefit, or by
or on behalf of any counterparty or issuer. When instructed to effect any
transactions (particularly foreign exchange transactions), the Custodian is
entitled to effect any transaction by or with itself or any member of the
Citigroup Organization and to pay or keep any fee, commissions or
compensation as specified in the Client's Instruction or, if no
specification is provided, any charges, fees, commissions or similar
payments generally in effect from time to time with regard to such or
similar transactions.
16. RECORDS AND ACCESS
------------------
(A) EXAMINATION OF STATEMENTS. The Client shall examine each statement sent by
the Custodian and notify the Custodian in writing within sixty (60) days of
the date of such statement of any discrepancy between Instructions given by
the Client and the position shown on the statement and of any other errors
known to the Client. Absent such notification, the Custodian's liability
for any loss or damage in regard to such discrepancy or errors shall not
accrue beyond such sixty (60) days.
(B) ACCESS TO RECORDS. The Custodian shall allow the Client and the Fund and
their independent public accountants, agents or regulators reasonable
access to the records of the Custodian relating to Securities or Cash as is
required in connection with an examination of the books and records
pertaining to the affairs of the Client or the Fund and will seek to obtain
such access from each subcustodian and Clearance System.
(C) REPORTS. The Custodian shall provide to the Client from year to year any
report prepared by the Custodian's independent certified public accountants
with respect to the services provided by the Custodian under this Agreement
including, without limitation, the Custodian's accounting system, internal
accounting control and procedures for safeguarding Cash, Securities and
other assets. Upon request, the Custodian shall provide the Client with any
similar report received from any subcustodian or any Clearance System.
17. INFORMATION
-----------
The Custodian will treat information related to the Client and the Fund as
confidential but, unless prohibited by law, the Client and the Fund
authorizes the transfer or disclosure of any information relating to the
Client and the Fund to and between the branches, subsidiaries,
representative offices, affiliates and agents of the Custodian and third
parties selected by any of them, wherever situated, for confidential use in
connection with the provision of services to the Client and the Fund
(including for data processing, statistical and risk analysis purposes),
and further acknowledges that any such branch, subsidiary, representative
office, affiliate, agent or third party may transfer or disclose any such
information as required by any law, court, regulator or legal process.
The Client will treat the terms of this Agreement, including any Fee
Schedule, as confidential; provided, however, the Client may provide this
Agreement to the Fund and to Client's counsel, auditors and service
providers on a need-to-know basis and may also provide copies to any
regulatory authorities with jurisdiction over the Client or any Fund upon
the request of such persons.
18. ADVERTISING
-----------
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Neither the Client nor the Custodian shall display the name, trade xxxx or
service xxxx of the other without the prior written approval of the other,
nor will the Client display that of Citigroup, Inc. or any subsidiary of
Citigroup, Inc. without prior written approval from Citigroup, Inc. or the
subsidiary concerned. The Client shall not advertise or promote any service
provided by the Custodian without the Custodian's prior written consent.
19. TERMINATION
-----------
(A) DATE OF TERMINATION. Any party may terminate this Agreement in whole or as
between itself and the other parties hereto by giving not less than ninety
(90) days' prior written notice to such other parties.
(B) EFFECT ON PROPERTY. The Custodian shall deliver the Securities and Cash as
instructed by the Client. If by the termination date the Client has not
given instructions to deliver any Securities or Cash, the Custodian will
continue to safekeep such Securities and/or Cash until the Client provides
Instructions to effect a free delivery of such. However, the Custodian will
provide no other services as regard to any such Securities except to
collect and hold any cash distributions. Notwithstanding termination of
this Agreement or any Instruction, the Custodian may retain sufficient
Securities or Cash to close out or complete any transaction that the
Custodian will be required to settle on the Client's or the Fund's behalf.
(C) SURVIVING TERMS. The rights and obligations contained in Sections 7, 10,
12, 13, 17, 18 and 20 of this Agreement shall survive the termination of
this Agreement.
20. GOVERNING LAW AND JURISDICTION
------------------------------
(A) GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the internal laws (and not the laws of conflicts) of the
country in which the Custodian is located and performs its obligations
hereunder.
(B) JURISDICTION. The courts of the country in which the Custodian is located
and performs its obligations hereunder (including any appropriate
sub-jurisdiction) shall have non-exclusive jurisdiction to hear any
disputes arising out of or in connection with this Agreement, and the
parties irrevocably submit to the jurisdiction of such courts.
(C) VENUE. Each party hereto waives any objection it may have at any time, to
the laying of venue of any actions or proceedings brought in any court
specified in Section 20(B) hereof, waives any claim that such actions or
proceedings have been brought in an inconvenient forum and further waives
the right to object that such court does not have jurisdiction over such
party.
(D) SOVEREIGN IMMUNITY. The Client and the Custodian each irrevocably waives,
with respect to itself and its revenues and assets, all immunity on the
grounds of sovereignty or similar grounds in respect of its obligations
under this Agreement.
21. MISCELLANEOUS
-------------
(A) ENTIRE AGREEMENT; AMENDMENTS. This Agreement consists exclusively of this
document together with the schedules. The Custodian may notify the Client
of terms that are applicable to the provision of services in the location
of a particular office and such terms shall be contained in a schedule and
shall supplement this Agreement in relation to that office. In case of
inconsistency with the rest of this Agreement, such terms shall prevail in
relation to that office.
Except as specified in this Agreement, this Agreement may only be modified
by written agreement of the Client and the Custodian.
(B) SEVERABILITY. If any provision of this Agreement is or becomes illegal,
invalid or unenforceable under any applicable law, the remaining provisions
shall remain in full force and effect (as shall that provision under any
other law).
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(C) WAIVER OF RIGHTS. No failure or delay of the Client or the Custodian in
exercising any right or remedy under this Agreement shall constitute a
waiver of that right. Any waiver of any right will be limited to the
specific instance. The exclusion or omission of any provision or term from
this Agreement shall not be deemed to be a waiver of any right or remedy
the Client or the Custodian may have under applicable law.
(D) RECORDINGS. The Client, on behalf of itself and the Fund, and the Custodian
consent to telephonic or electronic recordings for security and quality of
service purposes and agree that either may produce telephonic or electronic
recordings or computer records as evidence in any proceedings brought in
connection with this Agreement.
(E) FURTHER INFORMATION. The Client agrees to execute and to cause the Fund to
execute further documents and provide materials and information as may be
reasonably requested by the Custodian to enable it to perform its duties
and obligations under this Agreement.
(F) ASSIGNMENT. No party may assign or transfer any of its rights or
obligations under this Agreement without the other's prior written consent,
which consent will not be unreasonably withheld or delayed; provided that
the Custodian may make such assignment or transfer to a branch, subsidiary
or affiliate if it does not materially affect the provision of services to
the Client.
(G) HEADINGS. Titles to Sections of this Agreement are included for convenience
of reference only and shall be disregarded in construing the language
contained in this Agreement.
(H) COUNTERPARTS. This Agreement may be executed in several counterparts, each
of which shall be an original, but all of which together shall constitute
one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective officers thereunto duly authorized.
CITIBANK, N.A. THE XXXXXX TRUST
By: By:
------------------------------------ --------------------------------
Name: Name:
---------------------------------- ------------------------------
Title: Title:
-------------------------------- -----------------------------
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GLOBAL CUSTODIAL SERVICES AGREEMENT
SCHEDULE A
LIST OF PORTFOLIOS
Xxxxxx Value Fund
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GLOBAL CUSTODIAL SERVICES AGREEMENT
FEE SCHEDULE
This Schedule shall be amended upon delivery by Custodian of a new Schedule to
Client and acceptance thereof by Client and shall be effective as of the date of
acceptance by Client or a date agreed upon between Custodian and Client.
1. ACCOUNT MAINTENANCE FEES
Domestic Custody Accounts $3,600 per account per year
2. DOMESTIC CUSTODY FEES
A. SAFEKEEPING CHARGES
Assets Annual
UNDER CUSTODY ASSET FEE
$0 - $1 Billion 1 Basis Point
$1 - $2 Billion 0.75 Basis Points
$2 - $6 Billion 0.50 Basis Points
$6 Billion + 0.25 Basis Points
B. TRANSACTION CHARGES
Cost Per
TRANSACTION TYPE TRANSACTION
---------------- -----------
DTC $12
Federal Book Entry $10
PTC $10
Physicals $25
Maturities (Depository) $10
Maturities (Physical) $25
P&I Payments (Book Entry) $3
P&I Payments (Physical) $10
Fed Wires (from Custody account) $8
SHE (Shares Held Elsewhere) Trades $25
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3. NOTES
The standard custody service includes: (i) asset safekeeping, (ii)
trade settlement, (iii) income collection, (iv) corporate action
processing (including proxy voting) and (v) tax reclaims (where
applicable.)
Accounts utilize actual settlement.
Out-of-pocket expenses are borne by Customer. Out-of-pocket expenses
include, but are not limited to, postage and legal fees. These charges
are passed on at cost.
CITIBANK, N.A. THE XXXXXX TRUST
By: By:
---------------------------------- ----------------------------
Name: Name:
-------------------------------- ---------------------------
Title: Title:
-------------------------------- ---------------------------
