EXHIBIT G(1)
CUSTODY AGREEMENT
AGREEMENT, dated as of December 22, 1997 by and between THE BEAR XXXXXXX
FUNDS (the "Trust"), a business trust organized and existing under the laws of
the Commonwealth of Massachusetts, acting with respect to and on behalf of each
of the series of the Trust that are identified on Exhibit A hereto (each, a
"Portfolio"), and CUSTODIAL TRUST COMPANY, a bank organized and existing under
the laws of the State of New Jersey (the "Custodian").
WHEREAS, the Trust desires that the securities, funds and other assets of
the Portfolios be held and administered by Custodian pursuant to this Agreement;
WHEREAS, each Portfolio is an investment portfolio represented by a series
of Shares included among the shares of beneficial interest issued by the Trust,
an open-end management investment company registered under the 1940 Act;
WHEREAS, Custodian represents that it is a bank having the qualifications
prescribed in the 1940 Act to act as custodian for management investment
companies registered under the 1940 Act;
NOW, THEREFORE, in consideration of the mutual agreements herein made, the
Trust 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 person authorized by resolution of the
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Board of Trustees to give Oral Instructions and Written Instructions on behalf
of the Trust and identified, by
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name or by office, in Exhibit B hereto or any person designated to do so by an
investment adviser of any Portfolio who is named by the Trust in Exhibit C
hereto.
1.2 "Board of Trustees" means the Board of Trustees of the Trust or, when
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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 for securities of the United States government or of agencies or
instrumentalities thereof (including government-sponsored enterprises).
1.4 "Business Day" means any day on which banks in the State of New Jersey
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and New York are open for business.
1.5 "Custody Account" means, with respect to a Portfolio, the account in
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the name of such Portfolio, which is provided for in Section 3.2 below.
1.6 "Domestic Securities Depository" means The Depository Trust Company and
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any other clearing agency registered with the Securities and Exchange Commission
under the Securities Exchange Act of 1934, which acts as a securities
depository.
1.7 "Eligible Domestic Bank" means a bank as defined in the 1940 Act.
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1.8 "Eligible Foreign Custodian" means any banking institution, trust
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company or other entity (including any Foreign Securities Depository) organized
under the laws of a country other than the United States which is eligible under
the 1940 Act to act as a custodian for securities and other assets of a
Portfolio held outside the United States.
1.9 "Foreign Custody Manager" has the same meaning as in the 1940 Act.
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1.10 "Foreign Securities Depository" means a foreign securities depository
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or clearing agency as defined in the 1940 Act.
1.11 "1940 Act" means the Investment Company Act of 1940, as amended, and
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the rules and regulations thereunder.
1.12 "Oral Instructions" means instructions orally transmitted to and
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accepted by Custodian which are (a) reasonably believed by Custodian to have
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been given by an Authorized Person, (b) recorded and kept among the records of
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Custodian made in the ordinary course of business, and (c) completed in
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accordance with Custodian's requirements from time to time as to content of
instructions and their manner and timeliness of delivery by the Trust.
1.13 "Proper Instructions" means Oral Instructions or Written Instructions.
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Proper Instructions may be continuing Written Instructions when deemed
appropriate by the Trust and Custodian.
1.14 "Securities Depository" means any Domestic Securities Depository or
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Foreign Securities Depository.
1.15 "Shares" means, with respect to a Portfolio, those shares in a series
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or class of beneficial interests of the Trust that represent interests in such
Portfolio.
1.16 "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 an Authorized Person, (b) sent or transmitted by letter, facsimile,
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central processing unit connection, on-line terminal or magnetic tape, and (c)
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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
Trust.
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ARTICLE II
APPOINTMENT OF CUSTODIAN
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2.1 Appointment. The Trust hereby appoints Custodian as custodian of all
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such securities, funds and other assets of each Portfolio as may be acceptable
to Custodian and from time to time delivered to it by the Trust or others for
the account of such Portfolio.
2.2 Acceptance. Custodian hereby accepts appointment as such custodian and
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agrees to perform the duties thereof as hereinafter set forth.
ARTICLE III
CUSTODY OF SECURITIES, FUNDS AND OTHER ASSETS
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3.1 Segregation. All securities and non-cash property of a Portfolio in the
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possession of Custodian (other than securities maintained by Custodian with a
sub-custodian appointed pursuant to this Agreement or in a Securities Depository
or Book-Entry System) shall be physically segregated from other such securities
and non-cash property in the possession of Custodian. All cash, securities and
other non-cash property of a Portfolio shall be identified as belonging to such
Portfolio.
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 each Portfolio, subject only to
draft or order of Custodian, in which Custodian shall enter and carry all
securities, funds and other assets of such Portfolio which are delivered to
Custodian and accepted by it.
(b) If, with respect to any Portfolio, Custodian at any time fails to
receive any of the documents referred to in Section 3.10(a) below, then, until
such time as it receives such document, it shall not be obligated to receive any
securities into the Custody Account of such Portfolio and shall be entitled to
return to such Portfolio any securities that it is holding in such Custody
Account.
3.3 Securities in Physical Form. Custodian may, but shall not be obligated
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to, hold securities that may be held only in physical form.
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3.4 Disclosure to Issuers of Securities. Custodian is authorized to
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disclose the Trust's and any Portfolio's names and addresses, and the securities
positions in such Portfolio's Custody Account, to the issuers of such securities
when requested by them to do so.
3.5 Employment of Domestic Sub-Custodians. At any time and from time to
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time, Custodian in its discretion may appoint and employ, and may also cease to
employ, any Eligible Domestic Bank as sub-custodian to hold securities and other
assets of a Portfolio that are maintained in the United States and to carry out
such other provisions of this Agreement as it may determine, provided, however,
that the employment of any such sub-custodian has been approved by the Trust.
The employment of any such sub-custodian shall be at Custodian's expense and
shall not relieve Custodian of any of its obligations or liabilities under this
Agreement.
3.6 Employment of Foreign Sub-Custodians. (a) At any time and from time to
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time, Custodian in its discretion may appoint and employ in accordance with the
1940 Act, and may also cease to employ, (i) any overseas branch of any Eligible
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Domestic Bank, or (ii) any Eligible Foreign Custodian selected by the Foreign
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Custody Manager, in each case as a foreign sub-custodian for securities and
other assets of a Portfolio that are maintained outside the United States,
provided, however, that the employment of any such overseas branch has been
approved by the Trust and, provided further that, in the case of any such
Eligible Foreign Custodian, the Foreign Custody Manager has approved, in
writing, the agreement (and/or, in the case of a Foreign Securities Depository,
the rules and/or established practices and procedures thereof) pursuant to which
Custodian employs such Eligible Foreign Custodian.
(b) Set forth on Exhibit D hereto, with respect to each Portfolio, are the
foreign sub-custodians (including Foreign Securities Depositories) that
Custodian may employ pursuant to Section 3.6(a) above. Exhibit D shall be
revised from time to time as foreign sub-custodians are added or deleted.
(c) If the Trust proposes to have a Portfolio make an investment which is
to be held in a country in which Custodian does not have appropriate
arrangements in place with a foreign sub-
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custodian selected by the Foreign Custody Manager, then the Trust shall inform
Custodian sufficiently in advance of such investment to allow Custodian to make
such arrangements.
(d) Notwithstanding anything to the contrary in Section 7.1 below,
Custodian shall have no greater liability to any Portfolio or the Trust for the
actions or omissions of any foreign sub-custodian appointed pursuant to this
Agreement than any such foreign 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 foreign sub-custodian has effectively indemnified
Custodian against it or has otherwise discharged its liability to Custodian in
full.
(e) Upon the request of the Foreign Custody Manager, Custodian shall
furnish to the Foreign Custody Manager information concerning all foreign sub-
custodians employed pursuant to this Agreement which shall be similar in kind
and scope to any such information that may have been furnished to the Foreign
Custody Manager in connection with the initial approval by the Foreign Custody
Manager of the agreements pursuant to which Custodian employs such foreign sub-
custodians or as otherwise required by the 1940 Act.
3.7 Employment of Other Agents. Custodian may employ other suitable agents,
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which may include affiliates of Custodian such as Bear, Xxxxxxx & Co. Inc. or
Bear, Xxxxxxx Securities Corp., both of which are securities broker-dealers. The
appointment of any agent pursuant to this Section 3.7 shall not relieve
Custodian of any of its obligations or liabilities under this Agreement.
3.8 Bank Accounts. In its discretion and from time to time Custodian may
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open and maintain one or more demand deposit accounts with any Eligible Domestic
Bank (any such accounts to be in the name of Custodian and subject only to its
draft or order), provided, however, that the opening and maintenance of any such
account shall be at Custodian's expense and shall not relieve Custodian of any
of its obligations or liabilities under this Agreement.
3.9 Delivery of Assets to Custodian. Provided they are acceptable to
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Custodian, the Trust shall deliver to Custodian the securities, funds and other
assets of each Portfolio, including (a) payments of income, payments of
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principal and capital distributions received by such Portfolio with
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respect to securities, funds or other assets owned by such Portfolio at any time
during the term of this Agreement, and (b) funds received by such Portfolio for
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the issuance, at any time during such term, of Shares of such Portfolio.
Custodian shall not be under any duty or obligation to require the Trust to
deliver to it any securities or other assets owned by a Portfolio and shall have
no responsibility or liability for or on account of securities or other assets
not so delivered.
3.10 Domestic Securities Depositories and Book-Entry Systems. Custodian and
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any sub-custodian appointed pursuant to Section 3.5 above may deposit and/or
maintain securities of any Portfolio in a Domestic Securities Depository or in a
Book-Entry System, subject to the following provisions:
(a) Prior to a deposit of securities of a Portfolio in any Domestic
Securities Depository or Book-Entry System, the Trust shall deliver to Custodian
a resolution of the Board of Trustees, certified by an officer of the Trust,
authorizing and instructing Custodian (and any sub-custodian appointed pursuant
to Section 3.5 above) on an on-going basis to deposit in such Domestic
Securities Depository or Book-Entry System all securities eligible for deposit
therein and to make use of such Domestic Securities Depository or Book-Entry
System to the extent possible and practical in connection with the performance
of its obligations hereunder (or under the 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 a Portfolio kept in a Book-Entry System or Domestic
Securities Depository shall be kept in an account ("Depository Account") of
Custodian (or of any sub-custodian appointed pursuant to Section 3.5 above) in
such Book-Entry System or Domestic Securities Depository which includes only
assets held by Custodian (or such sub-custodian) as a fiduciary, custodian or
otherwise for customers.
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(c) The records of Custodian with respect to securities of a Portfolio
that are maintained in a Book-Entry System or Domestic Securities Depository
shall at all times identify such securities as belonging to such Portfolio.
(d) If securities purchased by a Portfolio are to be held in a Book-Entry
System or Domestic Securities Depository, Custodian (or any sub-custodian
appointed pursuant to Section 3.5 above) shall pay for such securities upon (i)
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receipt of advice from the Book-Entry System or Domestic Securities Depository
that such securities have been transferred to the Depository Account, and (ii)
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the making of an entry on the records of Custodian (or of such sub-custodian) to
reflect such payment and transfer for the account of such Portfolio. If
securities sold by a Portfolio are held in a Book-Entry System or Domestic
Securities Depository, Custodian (or such sub-custodian) shall transfer such
securities upon (A) receipt of advice from the Book-Entry System or Domestic
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Securities Depository that payment for such securities has been transferred to
the Depository Account, and (B) the making of an entry on the records of
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Custodian (or of such sub-custodian) to reflect such transfer and payment for
the account of such Portfolio.
(e) Custodian shall provide the Trust with copies of any report obtained
by Custodian (or by any sub-custodian appointed pursuant to Section 3.5 above)
from a Book-Entry System or Domestic Securities Depository in which securities
of a Portfolio are kept on the internal accounting controls and procedures for
safeguarding securities deposited in such Book-Entry System or Domestic
Securities Depository.
(f) At its election, the Trust shall be subrogated to the rights of
Custodian (or of any sub-custodian appointed pursuant to Section 3.5 above) with
respect to any claim against a Book-Entry System or Domestic Securities
Depository or any other person for any loss or damage to a Portfolio arising
from the use of such Book-Entry System or Domestic Securities Depository, if and
to the extent that such Portfolio has not been made whole for any such loss or
damage.
3.11 Relationship With Securities Depositories. No Book-Entry System,
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Securities Depository, or other securities depository or clearing agency
(whether foreign or domestic) which
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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 Section 3.7 above or otherwise.
3.12 Payments from Custody Account. Upon receipt of Proper Instructions
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with respect to a Portfolio but subject to its right to foreclose upon and
liquidate collateral pledged to it pursuant to Section 8.3 below, Custodian
shall make payments from the Custody Account of such Portfolio, but only in the
following cases, provided, first, that such payments are in connection with the
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clearance and/or custody of securities or other assets, second, that there are
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sufficient funds in such Custody Account, whether belonging to such Portfolio or
advanced to it by Custodian in its sole and absolute discretion as set forth in
Section 3.18 below, for Custodian to make such payments, and, third, that after
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the making of such payments, such Portfolio would not be in violation of any
margin or other requirements agreed upon pursuant to Section 3.18 below:
(a) For the purchase of securities for such Portfolio but only (i) in the
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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 this Agreement) of such securities registered as
provided in Section 3.20 below or in proper form for transfer or, if the
purchase of such securities is effected through a Book-Entry System or Domestic
Securities Depository, in accordance with the conditions set forth in Section
3.10 above, and (ii) in the case of options, futures contracts and options on
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futures contracts, against delivery to Custodian (or such sub-custodian) of
evidence of title thereto in favor of such Portfolio, the Custodian, any such
sub-custodian, or any nominee referred to in Section 3.20 below;
(b) In connection with the conversion, exchange or surrender, as set forth
in Section 3.13(f) below, of securities owned by such Portfolio;
(c) For transfer in accordance with the provisions of any agreement among
the Trust, Custodian and a securities broker-dealer, relating to compliance with
rules of The Options
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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 of such Portfolio;
(d) For transfer in accordance with the provisions of any agreement among
the Trust, 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 margin or other
deposits in connection with transactions of such Portfolio;
(e) For the funding of any time deposit (whether certificated or not) or
other interest-bearing account with any banking institution (including
Custodian), provided that Custodian shall receive and retain such certificate,
advice, receipt or other evidence of deposit (if any) as such banking
institution may deliver with respect to any such deposit or account;
(f) For the purchase from a banking or other financial institution of loan
participations, but only if Custodian has in its possession a copy of the
agreement between the Trust and such banking or other financial institution with
respect to the purchase of such loan participations and provided that Custodian
shall receive and retain such participation certificate or other evidence of
participation (if any) as such banking or other financial institution may
deliver with respect to any such loan participation;
(g) For the purchase and/or sale of foreign currencies or of options to
purchase and/or sell foreign currencies, for spot or future delivery, for the
account of such Portfolio pursuant to contracts between the Trust and any
banking or other financial institution (including Custodian, any sub-custodian
appointed pursuant to this Agreement and any affiliate of Custodian);
(h) For transfer to a securities broker-dealer as margin for a short sale
of securities for such Portfolio, or as payment in lieu of dividends paid on
securities sold short for such Portfolio;
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(i) For the payment as provided in Article IV below of any dividends,
capital gain distributions or other distributions declared on the Shares of such
Portfolio;
(j) For the payment as provided in Article IV below of the redemption
price of the Shares of such Portfolio;
(k) For the payment of any expense or liability incurred by such
Portfolio, including but not limited to the following payments for the account
of such Portfolio: interest, taxes, and administration, investment advisory,
accounting, auditing, transfer agent, custodian, trustee and legal fees, and
other operating expenses of such Portfolio; in all cases, whether or not such
expenses are to be in whole or in part capitalized or treated as deferred
expenses; and
(l) For any other proper purpose, but only upon receipt of Proper
Instructions, specifying the amount and purpose of such payment, certifying such
purpose to be a proper purpose of such Portfolio, and naming the person or
persons to whom such payment is to be made.
3.13 Deliveries from Custody Account. Upon receipt of Proper Instructions
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with respect to a Portfolio but subject to its right to foreclose upon and
liquidate collateral pledged to it pursuant to Section 8.3 below, Custodian
shall release and deliver securities and other assets from the Custody Account
of such Portfolio, but only in the following cases, provided, first, that such
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deliveries are in connection with the clearance and/or custody of securities or
other assets, second, there are sufficient amounts and types of securities or
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other assets in such Custody Account for Custodian to make such deliveries, and,
third, that after the making of such deliveries, such Portfolio would not be in
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violation of any margin or other requirements agreed upon pursuant to Section
3.18 below:
(a) Upon the sale of securities for the account of such Portfolio but,
subject to Section 3.14 below, only against receipt of payment therefor or, if
such sale is effected through a Book-Entry System or Domestic Securities
Depository, in accordance with the provisions of Section 3.10 above;
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(b) To an offeror's depository agent in connection with tender or other
similar offers for securities of such Portfolio; provided that, in any such
case, the funds or other consideration for such securities is to be delivered to
Custodian;
(c) To the issuer thereof or its agent when such securities are called,
redeemed or otherwise become payable, provided that in any such case the funds
or other consideration for such securities is to be delivered to Custodian;
(d) To the issuer thereof or its agent 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 securities broker through whom securities are being sold for
such Portfolio, 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
funds, if any, are to be delivered to Custodian;
(g) In the case of warrants, rights or similar securities, to the issuer
of such warrants, rights or similar securities, or its agent, upon the exercise
thereof, provided that, in any such case, the new securities and funds, if any,
are to be delivered to Custodian;
(h) To the borrower thereof, or its agent, in connection with any loans of
securities for such Portfolio pursuant to any securities loan agreement entered
into by the Trust, but only against receipt by Custodian of such collateral as
is required under such securities loan agreement;
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(i) To any lender, or its agent, as collateral for any borrowings from
such lender by such Portfolio that require a pledge of assets of such Portfolio,
but only against receipt by Custodian of the amounts borrowed;
(j) Pursuant to any authorized plan of liquidation, reorganization,
merger, consolidation or recapitalization of such Portfolio or the Trust;
(k) For delivery in accordance with the provisions of any agreement among
the Trust, Custodian and a securities 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 of such
Portfolio;
(l) For delivery in accordance with the provisions of any agreement among
the Trust, 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 margin or other
deposits in connection with transactions of such Portfolio;
(m) For delivery to a securities broker-dealer as margin for a short sale
of securities for such Portfolio;
(n) To the issuer of American Depositary Receipts or International
Depositary Receipts (hereinafter, collectively, "ADRs") for such securities, or
its agent, against a written receipt therefor adequately describing such
securities, provided that such securities are delivered together with
instructions to issue ADRs in the name of Custodian or its nominee and to
deliver such ADRs to Custodian;
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(o) In the case of ADRs, to the issuer thereof, or its agent, against a
written receipt therefor adequately describing such ADRs, provided that such
ADRs are delivered together with instructions to deliver the securities
underlying such ADRs to Custodian or an agent of Custodian; or
(p) For any other proper purpose, but only upon receipt of Proper
Instructions, specifying the securities or other assets to be delivered, setting
forth the purpose for which such delivery is to be made, certifying such purpose
to be a proper purpose of such Portfolio, and naming the person or persons to
whom delivery of such securities or other assets is to be made.
3.14 Delivery Prior to Final Payment. When instructed by the Trust to
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deliver securities of a Portfolio against payment, Custodian 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, prior to receipt of
payment therefor. In any such case, such Portfolio 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.
3.15 Credit Prior to Final Payment. In its sole discretion and from time to
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time, Custodian may credit the Custody Account of a Portfolio, prior to actual
receipt of final payment thereof, with (a) proceeds from the sale of securities
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of such Portfolio which it has been instructed to deliver against payment, (b)
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proceeds from the redemption of securities or other assets in such Custody
Account, and (c) income from securities, funds or other assets in such Custody
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Account. 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 a
Portfolio to use funds so credited to its Custody Account in anticipation of
actual receipt of final payment. Any funds so used shall constitute an advance
subject to Section 3.18 below.
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3.16 Definition of Final Payment. For purposes of this Agreement, "final
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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.
3.17 Payments and Deliveries Outside the United States. Notwithstanding
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anything to the contrary that may be required by Section 3.12 or Section 3.13
above, or elsewhere in this Agreement, in the case of securities and other
assets maintained outside the United States and in the case of payments made
outside the United States, Custodian and any sub-custodian appointed pursuant to
this Agreement may receive and deliver such securities or other assets, and may
make such payments, in accordance with the laws, regulations, customs,
procedures and practices applicable in the relevant local market outside the
United States.
3.18 Clearing Credit. Provided that such an extension of credit is not
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prohibited under laws and regulations applicable to Custodian and/or the Trust,
Custodian may, in its sole discretion and from time to time, advance funds to
the Trust to facilitate the settlement of a Portfolio's transactions in the
Custody Account of such Portfolio. Any such advance (a) shall be repayable
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immediately upon demand made by Custodian, (b) shall be fully secured as
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provided in Section 8.3 below, and (c) shall bear interest at such rate, and be
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subject to such other terms and conditions, as Custodian and the Trust may
agree.
3.19 Actions Not Requiring Proper Instructions. Unless otherwise instructed
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by the Trust, Custodian shall with respect to all securities and other assets
held for a Portfolio:
(a) Subject to Section 7.4 below, receive into the Custody Account of such
Portfolio any funds or other property, including payments of principal, interest
and dividends, due and payable on or on account of such securities and other
assets;
(b) Deliver securities of such Portfolio to the issuers of such securities
or their agents for the transfer thereof into the name of such Portfolio,
Custodian or any of the nominees referred to in Section 3.20 below;
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(c) Endorse for collection, in the name of such Portfolio, 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 of the United States, or the laws or
regulations of any other taxing authority, in connection with the transfer of
such securities or other assets or the receipt of income or other payments with
respect thereto;
(f) Receive and hold for such Portfolio all rights and similar securities
issued with respect to securities or other assets of such Portfolio;
(g) As may be required in the execution of Proper Instructions, transfer
funds from the Custody Account of such Portfolio to any demand deposit account
maintained by Custodian pursuant to Section 3.8 above; and
(h) In general, attend to all non-discretionary details in connection with
the sale, exchange, substitution, purchase and transfer of, and other dealings
in, such securities and other assets.
3.20 Registration and Transfer of Securities. All securities held for a
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Portfolio 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 Securities
Depository or Book-Entry System if eligible therefor. All other securities and
all other assets held for a Portfolio may be registered in the name of (a)
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Custodian as agent, (b) any sub-custodian appointed pursuant to this Agreement,
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(c) any Securities Depository, or (d) any nominee or agent of any of them. The
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Trust shall furnish to Custodian appropriate instruments to enable Custodian to
hold or deliver in proper form for
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transfer, or to register as in this Section 3.20 provided, any securities or
other assets delivered to Custodian which are registered in the name of a
Portfolio.
3.21 Records. (a) Custodian shall maintain complete and accurate records
------- -
with respect to securities, funds and other assets held for a Portfolio,
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
receipts and disbursements of funds; (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, funds and
other assets of a Portfolio which are held hereunder as the Trust may reasonably
request.
(b) All such books and records maintained by Custodian for a Portfolio
shall (i) be maintained in a form acceptable to the Trust and in compliance with
-
rules and regulations of the Securities and Exchange Commission, (ii) be the
--
property of such Portfolio 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 Trust and employees or agents of the
Securities and Exchange Commission, and (iii) if required to be maintained under
---
the 1940 Act, be preserved for the periods prescribed therein.
3.22 Account Reports by Custodian. Custodian shall furnish the Trust with a
----------------------------
daily activity statement, including a summary of all transfers to or from the
Custody Account of each Portfolio (in the case of securities and other assets
maintained in the United States, on the day following such transfers). At least
monthly and from time to time, Custodian shall furnish the Trust with a detailed
statement of the securities, funds and other assets held for each Portfolio
under this Agreement.
-17-
3.23 Other Reports by Custodian. Custodian shall provide the Trust with
--------------------------
such reports as the Trust 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 this
Agreement.
3.24 Proxies and Other Materials. (a) Unless otherwise instructed by the
---------------------------
Trust, Custodian shall promptly deliver to the Trust all notices of meetings,
proxy materials (other than proxies) and other announcements, which it receives
regarding securities held by it in the Custody Account of a Portfolio. Whenever
Custodian or any of its agents receives a proxy with respect to securities in
the Custody Account of a Portfolio, Custodian shall promptly request
instructions from the Trust 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 Trust timely informs Custodian that the Trust wishes to vote any such
securities in person, Custodian shall promptly seek to have a legal proxy
covering such securities issued to the Trust. Unless otherwise instructed by the
Trust, neither Custodian nor any of its agents shall exercise any voting rights
with respect to securities held hereunder.
(b) Unless otherwise instructed by the Trust, Custodian shall promptly
transmit to the Trust all other written information received by Custodian from
issuers of securities held in the Custody Account of any Portfolio. With respect
to tender or exchange offers for such securities or with respect to other
corporate transactions involving such securities, Custodian shall promptly
transmit to the Trust 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 Trust, with respect to such tender or exchange offer or other corporate
transaction, desires to take any action that may be taken by it pursuant to the
terms of such offer or other transaction, the Trust shall notify Custodian (i)
-
in the case of securities maintained outside the United States, such number of
Business Days prior to the date on which Custodian is to take such action as
will allow Custodian to take such action in
-18-
the relevant local market for such securities in a timely fashion, and (ii) in
--
the case of all other securities, at least five Business Days prior to the date
on which Custodian is to take such action.
3.25 Co-operation. Custodian shall cooperate with and supply necessary
------------
information to the entity or entities appointed by the Trust to keep the books
of account of a Portfolio and/or to compute the value of the assets of a
Portfolio.
ARTICLE IV
REDEMPTION OF PORTFOLIO SHARES;
-------------------------------
DIVIDENDS AND OTHER DISTRIBUTIONS
---------------------------------
4.1 Transfer of Funds. From such funds as may be available for the purpose
-----------------
in the Custody Account of a Portfolio, and upon receipt of Proper Instructions
specifying that the funds are required to redeem Shares of such Portfolio or to
pay dividends or other distributions to holders of Shares of such Portfolio,
Custodian shall transfer each amount specified in such Proper Instructions to
such account of such Portfolio or of an agent thereof (other than Custodian), at
such bank, as the Trust may designate therein with respect to such amount.
4.2 Sole Duty of Custodian. Custodian's sole obligation with respect to the
----------------------
redemption of Shares of a Portfolio and the payment of dividends and other
distributions thereon shall be its obligation set forth in Section 4.1 above,
and Custodian shall not be required to make any payments to the various holders
from time to time of Shares of a Portfolio nor shall Custodian be responsible
for the payment or distribution by the Trust, or any agent designated in Proper
Instructions given pursuant to Section 4.1 above, of any amount paid by
Custodian to the account of the Trust or such agent in accordance with such
Proper Instructions.
ARTICLE V
SEGREGATED ACCOUNTS
-------------------
Upon receipt of Proper Instructions to do so, Custodian shall establish and
maintain a segregated account or accounts for and on behalf of any Portfolio,
into which account or accounts
-19-
may be transferred funds and/or securities, including securities maintained in a
Securities Depository:
(a) in accordance with the provisions of any agreement among the Trust,
Custodian and a securities 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 of such Portfolio,
(b) for purposes of segregating funds or securities in connection with
securities options purchased or written by such Portfolio or in connection with
financial futures contracts (or options thereon) purchased or sold by such
Portfolio,
(c) which constitute collateral for loans of securities made by such
Portfolio,
(d) for purposes of compliance by such Portfolio with requirements under
the 1940 Act for the maintenance of segregated accounts by registered management
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 Proper
Instructions, specifying the purpose or purposes of such segregated account and
certifying such purposes to be proper purposes of such Portfolio.
ARTICLE VI
CONCERNING THE CUSTODIAN
------------------------
7.1 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 any Portfolio or the Trust 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
-20-
part of Custodian. Custodian shall be entitled to rely on and may act upon
advice of counsel in 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, incidental or consequential damages, even if Custodian
has been advised of the possibility of such damages, or be liable in any manner
whatsoever for any action taken or omitted upon instructions from the Trust or
any agent of the Trust.
7.2 Actual Collection Required. Custodian shall not be liable for, or
--------------------------
considered to be the custodian of, any funds belonging to a Portfolio or any
money represented by a check, draft or other instrument for the payment of
money, until Custodian or its agents actually receive such funds or collect on
such instrument.
7.3 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 assets or evidence of title thereto
received or delivered by it or its agents.
7.4 Limitation on Duty to Collect. Custodian shall promptly notify the
-----------------------------
Trust whenever any money or property due and payable from or on account of any
securities or other assets held hereunder for a Portfolio 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.
7.5 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 of any
Portfolio and is not a fiduciary to any Portfolio or the Trust. In particular,
Custodian shall not be under any obligation at any time to monitor or to take
any other
-21-
action with respect to compliance by any Portfolio or the Trust with the 1940
Act, the provisions of the Trust's trust instruments or by-laws, or any
Portfolio's investment objectives, policies and limitations as in effect from
time to time.
ARTICLE VIII
INDEMNIFICATION
---------------
8.1 Indemnification. Each Portfolio shall indemnify and hold harmless
---------------
Custodian, any sub-custodian appointed pursuant to this Agreement and any
nominee of any of them, 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 Securities
Exchange Act of 1934, the 1940 Act, and any federal, state or foreign securities
and/or banking laws) or claim arising directly or indirectly (a) from the fact
-
that securities or other assets in the Custody Account of such Portfolio are
registered in the name of any such nominee, or (b) from any action or inaction,
-
with respect to such Portfolio, by Custodian or such sub-custodian or nominee
(i) at the request or direction of or in reliance on the advice of the Trust or
-
any of its agents, or (ii) upon Proper Instructions, or (c) generally, from the
-- -
performance of its obligations under this Agreement with respect to such
Portfolio, provided that Custodian, any such sub-custodian or any nominee of any
of them shall not be indemnified and held harmless from and against any such
loss, damage, cost, expense, liability or claim arising from willful
misfeasance, bad faith or negligence on the part of Custodian or any such sub-
custodian or nominee.
8.2 Indemnity to be Provided. If the Trust requests Custodian to take any
------------------------
action with respect to securities or other assets of a Portfolio, 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 such Portfolio shall have provided
indemnity therefor to Custodian in an amount and form satisfactory to Custodian.
8.3 Security. As security for the payment of any present or future
--------
obligation or liability of any kind which a Portfolio may have to Custodian with
respect to or in connection with the Custody Account of such Portfolio or this
Agreement, or which such Portfolio may otherwise
-22-
have to Custodian, the Trust hereby pledges to Custodian all securities, funds
and other assets of every kind which are in such Custody Account or otherwise
held for such Portfolio pursuant to this Agreement, and hereby grants to
Custodian a lien, right of set-off and continuing security interest in such
securities, funds and other assets.
ARTICLE IX
FORCE MAJEURE
-------------
Custodian shall not 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; actions by any governmental authority, de jure
-- ----
or de facto; or inability to obtain labor, material, equipment or
-- -----
transportation.
ARTICLE X
REPRESENTATIONS AND WARRANTIES
------------------------------
10.1 Representations With Respect to Portfolios. The Trust represents and
------------------------------------------
warrants that (a) it has all necessary power and authority to perform the
obligations hereunder of each Portfolio, (b) the execution and delivery by it of
this Agreement, and the performance by it of the obligations hereunder of each
Portfolio, 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 such Portfolio or by which it or such
Portfolio, or their respective assets, may be bound, and (c) this Agreement
constitutes a legal, valid and binding obligation of each Portfolio, enforceable
against it in accordance with its terms.
10.2 Representations of Custodian. Custodian represents and warrants that
----------------------------
(a) it has all necessary power and authority to perform its obligations
hereunder, (b) the execution and
-23-
delivery by it of this Agreement, and the performance by it of its obligations
hereunder, 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 or its assets may be bound, and (c)
this Agreement constitutes a legal, valid and binding obligation of it,
enforceable against it in accordance with its terms.
ARTICLE XI
COMPENSATION OF CUSTODIAN
-------------------------
Each Portfolio shall pay Custodian such fees and charges as are set forth
in Exhibit E hereto, as such Exhibit E may from time to time be revised by
Custodian upon 14 days' prior written notice to the Trust. Any annual fee or
other charges payable by a Portfolio shall be paid monthly by automatic
deduction from funds available therefor in the Custody Account of such
Portfolio, or, if there are no such funds, upon presentation of an invoice
therefor. Out-of-pocket expenses incurred by Custodian in the performance of its
services hereunder for any Portfolio and all other proper charges and
disbursements of the Custody Account of such Portfolio shall be charged to such
Custody Account by Custodian and paid in the same manner as the annual fee and
other charges referred to in this Article XI.
ARTICLE XII
TAXES
-----
12.1 Taxes Payable by Portfolios. 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 of any Portfolio or
any income thereof shall be charged to such Custody Account by Custodian and
paid in the same manner as the annual fee and other charges referred to in
Article XI above.
12.2 Tax Reclaims. Upon the written request of the Trust, Custodian shall
------------
exercise, on behalf of any Portfolio, any tax reclaim rights of such Portfolio
which arise in connection with foreign securities in the Custody Account of such
Portfolio.
-24-
ARTICLE XIII
AUTHORIZED PERSONS; NOTICES
---------------------------
13.1 Authorized Persons. Custodian may rely upon and act in accordance with
------------------
any notice, confirmation, instruction or other communication which is reasonably
believed by Custodian to have been given or signed on behalf of the Trust by one
of the Authorized Persons designated by the Trust in Exhibit B hereto, as it may
from time to time be revised. The Trust may revise Exhibit B hereto at any time
by notice in writing to Custodian given in accordance with Section 13.4 below,
but no revision of Exhibit B hereto shall be effective until Custodian actually
receives such notice.
13.2 Investment Advisers. Custodian may also rely upon and act in
-------------------
accordance with any Written or Oral Instructions given with respect to a
Portfolio which are reasonably believed by Custodian to have been given or
signed by one of the persons designated from time to time by any of the
investment advisers of such Portfolio who are specified in Exhibit C hereto (if
any) as it may from time to time be revised. The Trust may revise Exhibit C
hereto at any time by notice in writing to Custodian given in accordance with
Section 13.4 below, and each investment adviser specified in Exhibit C 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 C
hereto (if any) and no designation or removal by such investment adviser shall
be effective until Custodian actually receives such notice.
13.3 Oral Instructions. Custodian may rely upon and act in accordance with
-----------------
Oral Instructions. All Oral Instructions shall be confirmed to Custodian in
Written Instructions. However, 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 transaction authorized by such Oral
Instructions or the authorization given by an Authorized Person to effect such
transaction. Custodian shall incur no liability to any Portfolio or the Trust in
acting upon Oral Instructions. To the extent such Oral Instructions vary from
any confirming Written Instructions, Custodian
-25-
shall advise the Trust of such variance but unless confirming Written
Instructions are timely received, such Oral Instructions shall govern.
13.4 Addresses for 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, or the relevant
telephone number, set forth after its name hereinbelow:
If to the Trust:
THE BEAR XXXXXXX FUNDS
for [INSERT NAME OF PORTFOLIO]
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
---------------
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
or at such other address as either party hereto shall have provided to the other
by notice given in accordance with this Section 13.4. Writing shall include
transmissions by or through teletype, facsimile, central processing unit
connection, on-line terminal and magnetic tape.
13.5 Remote Clearance. Written Instructions for the receipt, delivery or
----------------
transfer of securities may include, and Custodian shall accept, Remote Clearance
Instructions (as defined hereinbelow) and Bulk Input Instructions (as defined
hereinbelow), provided that such Instructions are given in accordance with the
procedures prescribed by Custodian from time to time as to content of
instructions and their manner and timeliness of delivery by Customer.
-26-
Custodian shall be entitled to conclusively assume that all Remote Clearance
Instructions and Bulk Input Instructions have been given by an Authorized
Person, and Custodian is hereby irrevocably authorized to act in accordance
therewith. For purposes of this Agreement, "Remote Clearance Instructions" means
instructions that are input directly via a remote terminal which is located on
the premises of the Trust, or of an investment adviser named in Exhibit C
hereto, and linked to Custodian; and "Bulk Input Instructions" means
instructions that are input by bulk input computer tape delivered to Custodian
by messenger or transmitted to it via such transmission mechanism as the Trust
and Custodian shall from time to time agree upon.
ARTICLE XIV
TERMINATION
-----------
Either party hereto may terminate this Agreement with respect to one or
more of the Portfolios 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 with respect to each Portfolio
specified in such notice, 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 other assets then owned by
such Portfolio 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 such Portfolio, provided that such Portfolio shall have
paid to Custodian all fees, expenses and other amounts to the payment or
reimbursement of which it shall then be entitled.
ARTICLE XV
LIMITATION OF LIABILITIES
-------------------------
To the extent that the trustees of the Trust are regarded as entering into
this Agreement, they do so only as trustees of the Trust and not individually.
The obligations under this Agreement of the Trust or any Portfolio shall not be
binding upon any trustee, officer or employee of the Trust individually, or upon
any holder of Shares individually, but shall be binding only upon the assets and
property of such Portfolio. Such trustees, officers, employees
-27-
and holders, when acting in such capacities, shall not be personally liable
under this Agreement, and Custodian shall look solely to the assets and property
of each Portfolio for the performance of this Agreement with respect to such
Portfolio and the payment of any claim against such Portfolio under this
Agreement.
ARTICLE XVI
MISCELLANEOUS
-------------
16.1 Business Days. Nothing contained in this Agreement shall require
-------------
Custodian to perform any function or duty on a day other than a Business Day.
16.2 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.
16.3 References to Custodian. The Trust 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 a Portfolio and such other printed
matter as merely identifies Custodian as custodian for a Portfolio. The Trust
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.
16.4 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.
16.5 Amendments. This Agreement cannot be changed orally and, except as
----------
otherwise provided herein with respect to the Exhibits attached hereto, no
amendment to this Agreement shall be effective unless evidenced by an instrument
in writing executed by the parties hereto.
-28-
16.6 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.
16.7 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.
16.8 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 16.8 shall be void.
16.9 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 preferential jurisdiction by reason of
their present or future domicile or otherwise.
16.10 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.
-29-
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 BEAR XXXXXXX FUNDS
By: /s/ Xxxxxx X. Xxxxxxx
---------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
CUSTODIAL TRUST COMPANY
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Name: Xxxxxx X. Xxxxxx
Title: President
-30-
EXHIBIT A
PORTFOLIOS
----------
(as of July 13, 2000)
- Balanced Portfolio
- High Yield Total Return Portfolio
- International Equity Portfolio
- Small Cap Value Portfolio
- Large Cap Value Portfolio
- Total Return Bond Portfolio
- S&P Stars Portfolio
- The Insiders Select Portfolio
- Focus List Portfolio
- Prime Money Market Portfolio
-31-
EXHIBIT B
AUTHORIZED PERSONS
------------------
Set forth below are the names and specimen signatures of the persons
authorized by the Trust to administer the Custody Accounts of the Portfolios.
All Portfolios
--------------
Xxxxx X. Xxxxxxx and Xxxxxxx X. Xxxxxxx
Large Cap Value Portfolio, Small Cap Value Portfolio and S&P STARS Portfolio
----------------------------------------------------------------------------
Xxxxx Xxxxx, Xxxx X. Xxxxxx and Xxxxx X. XxXxxxxxx
Focus List Portfolio
--------------------
Xxxxx Xxxxx, Xxxx X. Xxxxxxx and Xxxx X. Xxxxxx
The Insiders Select Fund
------------------------
Xxxxx Xxxxx, Xxxx X. Xxxxxx and Xxxxx X. XxXxxxxxx
Balanced Portfolio
------------------
Xxxxx Xxxxx, Xxxxxxxx Xxxxxx and Xxxx X. Xxxxxx
International Equity Portfolio
------------------------------
Xxxxxx X. Xxxxx, Xxxxx X. Xxxxx and Xxxx X. Xxxxxx
Income Portfolio and High Yield Total Return Portfolio
------------------------------------------------------
Xxxx Xxxxxxxxxx, Xxxxx Xxxxxxx and Xxxxx Xxxx
Prime Money Market Portfolio
----------------------------
Xxxx Xxxxxxxx, Xxxx Xxxxxxxxxx and Xxxxx Xxxx
Authorized Signatories Signature
---------------------- ---------
Xxxxxx X. Xxxxx /s/ Xxxxxx X. Xxxxx
-------------------
Xxxx Xxxxxxxx /s/ Xxxx Xxxxxxxx
-----------------
Xxxxx Xxxxx /s/ Xxxxx Xxxxx
---------------
Xxxxxxxx Xxxxxx /s/ Xxxxxxxx Xxxxxx
-------------------
Xxxx Xxxxxxxxxx /s/ Xxxx Xxxxxxxxxx
-------------------
Xxxx X. Xxxxxxx /s/ Xxxx X. Xxxxxxx
-------------------
Xxxx X. Xxxxxx /s/ Xxxx X. Xxxxxx
------------------
Xxxxx Xxxxxxx /s/ Xxxxx Xxxxxxx
-----------------
Xxxxx X. Xxxxxxx /s/ Xxxxx X. Xxxxxxx
-------------------
Xxxxx X. XxXxxxxxx /s/ Xxxxx X. XxXxxxxxx
----------------------
Xxxxxxx X. Xxxxxxx /s/ Xxxxxxx X. Xxxxxxx
----------------------
Xxxxx Xxxx /s/ Xxxxx Xxxx
--------------
Revised as of May 4, 2000
-32-
EXHIBIT C
INVESTMENT ADVISERS
-------------------
ALL PORTFOLIOS
Bear Xxxxxxx Asset Management Inc.
-33-
EXHIBIT D
APPROVED FOREIGN SUB-CUSTODIANS AND SECURITIES DEPOSITORIES
-----------------------------------------------------------
Country Subcustodian Bank Securities Depositories
------- ------------------ -----------------------
Australia Citicorp Nominees Ltd. Austraclear
CHESS
RITS
Canada Citibank Canada CDS
Denmark Citibank through Den Danske Bank The Danish Securities Centre
Finland Citibank through Xxxxxx Bank Finish Central Securities
Depository Ltd.
France Citibank, S.A. SICOVAM S.A.
Germany Citibank Aktiengesellshaft Deutsche Boerse Clearing AG
Hong Kong Citibank, N.A. Hong Kong Securities
Clearing Company Limited
Central Money Markets Unit
Ireland Citibank, N.A Central Bank of Ireland
CREST
Italy Citibank, N.A. Monte Titoli Spa
Bank of Italy
Japan Citibank, N.A. The Bank of Japan
Japan Securities Depository
Center
-34-
Netherlands Citibank, N.A. Nederlands Interprofessioneel
Effectencentrum NIEC B.V.
Nominee Amsterdam Stock
Exchange N.V.
Nederlands Centraal Instituut
Voor Giraal Effectenverkeer
B.V.
Norway Citibank through Christiania Bank Verdipapirsentralen
og Kreditkasse (Norwegian Central
Securities Depository)
Portugal Citibank Portugal INTERBOLSA (Central de
Valores Mobiliarios)
Singapore Citibank, N.A. Central Depository (Pte) Ltd.
Spain Citibank, N.A. Bank of Spain
Servicio de Compensacion y
Liquidacion de Valores
Sweden Citibank through Skandinaviska Vardepapperscentralen VPC AB
Enskilda Banken
Switzerland Citibank, N.A. Schweizerishe Effekten -
Giro AG
Thailand Citibank, N.A. Thailand Securities
Depository Co., Ltd.
United Kingdom Citibank, N.A. CREST
Central Gilts Office (Bank of
England)
Central Money Market
Office (Bank of England)
First Chicago Clearing Centre
Custodial Trust Company Depository Participant Relationships
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Euroclear Belgium
Cedel Luxembourg
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EXHIBIT E
CUSTODY FEES AND TRANSACTION CHARGES
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Domestic Fees. Each Portfolio shall pay Custodian the following fees for
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assets maintained by such Portfolio in the United States ("Domestic Assets") and
charges for transactions by such Portfolio 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 of such
Portfolio or $5,000, any such percentage 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 $18 for each receive or deliver of book-entry
securities into or from the Custody Account of such Portfolio (but not for any
such receive or deliver of book-entry securities in a repurchase transaction
representing a cash sweep investment for such Portfolio's account);
(3) a transaction charge of $50 for each receive or deliver into or from
such Portfolio's Custody Account of securities in physical form;
(4) a transaction charge for each repurchase transaction in the Custody
Account of such Portfolio which represents a cash sweep investment for such
Portfolio'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 the amount of the purchase price paid by such
Portfolio in such repurchase transaction;
(5) a charge of $10 for each "free" transfer of funds from the Custody
Account of such Portfolio;
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(6) an administrative fee for each purchase in the Custody Account of such
Portfolio of shares or other interests in a money market or other fund, which
purchase represents a cash sweep investment for such Portfolio'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 of such
Portfolio that are 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. Each Portfolio shall pay Custodian fees for assets
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maintained by such Portfolio outside the United States ("Foreign Assets") and
charges for transactions by such Portfolio 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
of such Portfolio are held as Custodian shall from time to time provide to the
Trust. 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.
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