EXHIBIT(g).1
CUSTODY AGREEMENT
This agreement between Fortis Worldwide Portfolios, Inc. a corporation
organized and existing under the laws of Minnesota, having its principal place
of business at 000 Xxxxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxx 00000, hereinafter
called the "Company," and First Bank National Association, a national banking
association, having its principal place of business at 000 Xxxxx Xxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000, hereinafter called the "Custodian",
WITNESSETH: That in consideration of the mutual covenants and
agreements hereinafter contained, the parties hereto agree as follows:
1. EMPLOYMENT OF CUSTODIAN AND PROPERTY TO BE HELD BY IT.
The Company hereby employs the Custodian as the custodian of the
assets of its separate portfolio represented by its Series A Common Stock,
commonly known as the Fortis Global Growth Portfolio (the "Portfolio"),
including securities it desires to be held in places within the United States
("domestic securities") and securities it desires to be held outside of the
United States ("foreign securities") pursuant to the provisions of the Articles
of Incorporation. The Company agrees to deliver to the Custodian all securities
and cash of the Portfolio, and all payments of income, payments of principal or
capital distributions received by it with respect to all securities of the
Portfolio from time to time. All securities are to be held or disposed of by
the Custodian for, and subject at all times to the instructions of, the Company
pursuant to the terms of this Agreement. The Custodian shall have no power or
authority to assign, hypothecate, pledge or otherwise dispose of any such
securities, except pursuant to the directive of the Company and only for the
account of the Portfolio. The Custodian shall not be responsible for any
property of the Portfolio held or received by the Company and not delivered to
the Custodian.
The Custodian may employ as sub-custodians for the Portfolio's
securities and other assets the foreign banking institutions and foreign
securities depositories designated in Schedule "A" hereto as amended from time
to time but only in accordance with the provisions of Article 3. All
sub-custodians of the Custodian shall be subject to the instructions of the
Custodian and not to those of the Company and shall act solely as agents of the
Custodian.
2. DUTIES OF THE CUSTODIAN WITH RESPECT TO PROPERTY OF THE PORTFOLIO HELD BY
THE CUSTODIAN IN THE UNITED STATES.
2.1 HOLDING SECURITIES. The Custodian shall hold and physically
segregate for the account of the Portfolio all non-cash property, to
be held by it in the United States, including all domestic securities
of the Portfolio, other than securities which are maintained pursuant
to Section 2.8 in a clearing agency which acts as a securities
depository or in a book-entry system authorized by the U. S.
Department of Treasury, collectively referred to herein as "Securities
System," or
by an agent of Custodian as authorized in Section 2.7.
2.2 DELIVERY OF SECURITIES. The Custodian shall release and deliver
domestic securities of the Portfolio held by the Custodian or in a
Securities System account of the Custodian only upon receipt of Proper
Instructions, which may be continuing instructions when deemed
appropriate by the parties, and only in the following cases:
1) Upon sale of such securities for the account of the
Portfolio and receipt of payment therefor;
2) Upon the receipt of payment in connection with any
repurchase agreement related to such securities entered into by
the Company for the benefit of the Portfolio;
3) In the case of a sale effected through a Securities System,
in accordance with the provisions of Section 2.8 hereof;
4) To the depository agent in connection with tender or other
similar offers for portfolio securities of the Portfolio;
5) To the issuer thereof or its agent when such securities are
matured, called, redeemed, retired or otherwise become payable;
provided that, in any such case, the cash or other consideration
is to be delivered to the Custodian;
6) To the issuer thereof, or its agent, for transfer into the
name of the Portfolio or into the name of any nominee or nominees
of the Custodian or into the name or nominee name of any agent
appointed pursuant to Section 2.7 or into the name or nominee
name of any sub-custodian appointed pursuant to Article 1; or for
exchange for a different number of bonds, 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 the Custodian.
7) Upon the sale of such securities for the account of the
Portfolio, to the broker or its clearing agent, against a
receipt, for examination in accordance with "street delivery"
custom; provided that in any such case, the Custodian shall have
no responsibility or liability for any loss arising from the
delivery of such securities prior to receiving payment for such
securities except as may arise from the Custodian's own
negligence or willful misconduct;
8) For exchange or conversion pursuant to any plan of merger,
consolidation, recapitalization, reorganization or readjustment
of the
securities of the issuer of such securities, or pursuant to
provisions for conversion contained in such securities, or
pursuant to any deposit agreement; provided that, in any such
case, the new securities and cash, if any, are to be delivered to
the Custodian;
9) In the case of warrants, rights, or similar securities, the
surrender thereof in the exercise of such warrants, rights or
similar securities or the surrender of interim receipts or
temporary securities for definitive securities; provided that, in
any such case, the new securities and cash, if any, are to be
delivered to the Custodian;
10) For delivery in connection with any loans of securities made
by the Company for the benefit of the Portfolio, BUT ONLY against
receipt of adequate collateral as agreed upon from time to time
by the Custodian and the Company , which may be in the form of
cash, obligations issued by the United States government, its
agencies or instrumentalities, or irrevocable bank letters of
credit acceptable to the Company, except that in connection with
any loans for which collateral is to be credited to the
Custodian's account in the book-entry system authorized by the
U. S. Department of the Treasury, the Custodian will not be held
liable or responsible for the delivery of securities of the
Portfolio prior to the receipt of such collateral;
11) For delivery as security in connection with any borrowings
by the Company for the benefit of the Portfolio requiring a
pledge of assets from the Portfolio, BUT ONLY against receipt of
amounts borrowed;
12) For delivery in accordance with the provisions of any
agreement among the Company, the Custodian and a broker-dealer
registered under the Securities Exchange Act of 1934 (the
"Exchange Act") and a member of the National Association of
Securities Dealers, Inc. ("NASD"), relating to compliance with
the rules of The Options Clearing Corporation and of any
registered national securities exchange, or of any similar
organization or organizations, regarding escrow or other
arrangements in connection with transactions by the Company for
the benefit of the Portfolio;
13) For delivery in accordance with the provisions of any
agreement among the Company, the Custodian, and a Futures
Commission Merchant registered under the Commodity Exchange Act,
relating to compliance with the rules of the Commodity Futures
Trading Commission and/or any Contract Market, or any similar
organization or organizations, regarding account deposits in
connection with transactions by the Company for the benefit of
the Portfolio; and
14) For any other proper corporate purpose, BUT ONLY upon
receipt of, in addition to Proper Instructions, a certified copy
of a resolution of
the Board of Directors signed by an officer of the Company and
certified by the Secretary or Assistant Secretary, specifying the
securities to be delivered, setting forth the purpose for which
such delivery is to be made, declaring such purpose to be a
proper corporate purpose, and naming the person or persons to
whom delivery of such securities shall be made.
2.3 REGISTRATION OF SECURITIES. Domestic securities held by the
Custodian (other than bearer securities) shall be registered in the
name of the Portfolio or in the name of any nominee of the Portfolio
or of any nominee of the Custodian or in the name or nominee name of
any agent appointed pursuant to Section 2.7 or in the name or nominee
name of any sub-custodian appointed pursuant to Article 1. All
securities accepted by the Custodian on behalf of the Company under
the terms of this Agreement shall be in "street name" or other good
delivery form.
2.4 COLLECTION OF INCOME. The Custodian shall, or shall cause its
agent or sub-custodian to, collect on a timely basis all income and
other payments with respect to United States registered securities
held hereunder to which the Portfolio shall be entitled either by law
or pursuant to custom in the securities business and shall collect on
a timely basis all income and other payments with respect to United
States bearer securities if, on the date of payment by the issuer,
such securities are held by the Custodian or its agent or
sub-custodian thereof, unless such payment of income or other payment
is in default, and shall credit such income, as collected, to the
Portfolio's custodian account. Without limiting the generality of the
foregoing, the Custodian shall detach and present for payment all
coupons and other income items requiring presentation as and when they
become due.
Unless Custodian is the lending agent in connection with
securities loaned by the Company for the benefit of the Portfolio,
income due the Portfolio on United States securities loaned pursuant
to the provisions of Section 2.2 (10) shall be the responsibility of
the Company and the Custodian will have no duty or responsibility in
connection therewith, other than to provide the Company with such
information or data as may be necessary to assist the Company in
arranging for the timely delivery to the Custodian of the income to
which the Portfolio is properly entitled.
2.5 PAYMENT OF PORTFOLIO MONEYS. Upon receipt of Proper
Instructions, which may be continuing instructions when deemed
appropriate by the parties, the Custodian shall pay out moneys of the
Portfolio in the following cases only:
1) Upon the purchase of domestic securities, futures contracts
or options on futures contracts for the account of the Portfolio
but only (a) against the delivery of such securities, or evidence
of title to futures contracts or options on futures contracts, to
the Custodian (or any bank, banking firm or trust company doing
business in the United States or
abroad which is qualified under the Investment Company Act of
1940, as amended, to act as a custodian and has been designated
by the Custodian as its agent for this purpose) registered in the
name of the Portfolio or in the name of a nominee of the
Custodian or Custodian's agent or sub-custodian or in proper form
for transfer; (b) in the case of a purchase effected through a
Securities System, in accordance with the conditions set forth in
Section 2.8 hereof or (c) in the case of repurchase agreements
entered into between the Company for the benefit of the Portfolio
and a bank or a broker-dealer which is a member of NASD, against
delivery of the securities either in certificate form or through
an entry crediting the Custodian's account at the Federal Reserve
Bank with such securities;
2) In connection with conversion, exchange or surrender of
securities of the Portfolio as set forth in Section 2.2 hereof;
3) For the redemption or purchase of shares issued by the
Portfolio;
4) For the payments of any expense or liability incurred by the
Portfolio, including but not limited to the following payments
for the account of the Portfolio: interest, taxes, management,
accounting, transfer agent and legal fees, and operating expenses
of the Portfolio whether or not such expenses are to be in whole
or part capitalized or treated as deferred expenses;
5) For payments in connection with the return of securities
loaned by the Company for the benefit of the Portfolio upon
receipt of such securities or the reduction of collateral upon
receipt of proper notice;
6) For the payment of any dividend declared pursuant to the
governing documents of the Portfolio;
7) For any other proper purpose, BUT ONLY upon receipt of, in
addition to Proper Instructions, a certified copy of a resolution
of the Board of Directors of the Company signed by an officer of
the Company and certified by its Secretary or an Assistant
Secretary, specifying the amount of such payment, setting forth
the purchase for which such payment is to be made, declaring such
purpose to be a proper purpose, and naming the person or persons
to whom such payment is to be made.
2.6 LIABILITY FOR PAYMENT IN ADVANCE OF RECEIPT OF SECURITIES
PURCHASED. Custodian shall not make payment for the purchase of
domestic securities for the account of the Portfolio in advance of
receipt of the securities purchased in the absence of specific written
instructions from the Company to so pay in advance. In any and every
case where payment for purchase of domestic securities for the account
of the Portfolio is made by the Custodian in advance of receipt of the
securities purchased in the absence of specific written instructions
from the Company to so pay in advance the Custodian shall be liable to
the Company for such securities.
2.7 APPOINTMENT OF AGENTS. The Custodian may at time or times in its
discretion appoint (and may at any time remove) any other bank or
trust company which is itself qualified under the Investment Company
Act of 1940, as amended, to act as a custodian, as its agent to carry
out such of the provisions of this Article 2 as the Custodian may from
time to time direct; PROVIDED, however, that the appointment of any
agent shall not relieve the Custodian of its responsibilities or
liabilities hereunder.
2.8 DEPOSIT OF SECURITIES IN SECURITIES SYSTEMS. The Custodian may
deposit and/or maintain domestic securities of the Portfolio in a
clearing agency registered with the Securities and Exchange Commission
under Section 17A of the Securities Exchange Act of 1934, which acts
as a securities depository, or in the book-entry system authorized by
the U. S. Department of Treasury and certain federal agencies,
collectively referred to herein as "Securities System" in accordance
with applicable Federal Reserve Board and Securities and Exchange
Commission rules and regulations, if any, and subject to the following
provisions:
1) The Custodian may keep domestic securities of the Portfolio
in a Securities System provided that such securities are
represented in an account ("Account") of the Custodian in the
Securities System which shall not include any assets of the
Custodian other than assets held as a fiduciary, custodian or
otherwise for customers;
2) The records of the Custodian with respect to domestic
securities of the Portfolio which are maintained in a Securities
System shall identify by book-entry those securities belonging to
the Portfolio;
3) The Custodian shall pay for domestic securities purchased
for the account of the Portfolio upon (i) receipt of advice from
the Securities System that such securities have been transferred
to the Account, and (ii) the making of an entry on the records of
the Custodian to reflect such payment and transfer for the
account of the Portfolio. The Custodian shall transfer domestic
securities sold for the account of the Portfolio upon (i) the
simultaneous receipt of advice from the Securities System that
payment for such securities has been transferred to the Account,
and (ii) the making of an entry on the records of the Custodian
to reflect such transfer and payment for the account of the
Portfolio. Copies of all records from the Securities System of
transfers of domestic securities for the account of the Portfolio
shall be maintained by the Custodian and be provided
to the Company at its request. As part of its regular reporting
to the Company, the Custodian shall furnish to the Company
confirmation of each transfer to or from the account of the
Portfolio in the form of a written advice or notice.
4) The Custodian shall provide the Company with any report
obtained by the Custodian on the Securities System's accounting
system, internal accounting control and procedures for
safeguarding domestic securities deposited in the Securities
System;
5) The Custodian shall have received the initial certificate
required by Article 14 hereof;
6) Anything to the contrary in this Agreement notwithstanding,
the Custodian shall be liable to the Company for any loss or
damage to the Portfolio resulting from use of the Securities
System by reason of any negligence, misfeasance or misconduct of
the Custodian or any of its agents or of any of its or their
employees or from failure of the Custodian or any such agent to
enforce effectively such rights as it may have against the
Securities System; at the election of the Company, it shall be
entitled to be subrogated to the rights of the Custodian with
respect to any claim against the Securities System or any other
person which the Custodian may have as a consequence of any such
loss or damage if and to the extent that the Portfolio has not
been made whole for any such loss or damage.
2.9 SEGREGATED ACCOUNT. The Custodian shall upon receipt of Proper
Instructions establish and maintain a segregated account or accounts
for and on behalf of the Portfolio, into which account or accounts may
be transferred cash and/or securities, including securities maintained
in an account by the Custodian pursuant to Section 2.8 hereof, (i) in
accordance with the provisions of any agreement among the Company, the
Custodian and a broker-dealer registered under the Exchange Act and a
member of the NASD (or any Futures Commission Merchant registered
under the Commodity Exchange Act), relating to compliance with the
rules of The Options Clearing Corporation and of any registered
national securities exchange (or the Commodity Futures Trading
Commission or any registered contract market), or of any similar
organization or organizations, regarding escrow or other arrangements
in connection with transactions by the Company for the benefit of the
Portfolio, (ii) for purposes of segregating cash or government
securities in connection with options purchased, sold or written by
the Company for the benefit of the Portfolio or commodity futures
contracts or options thereon purchased or sold by the Company for the
benefit of the Portfolio, (iii) for the purposes of compliance by the
Company with the procedures required by Investment Company Act Release
No. 10666, or any subsequent release or releases of the Securities and
Exchange Commission relating to the maintenance of segregated accounts
by registered investment companies and (iv) for other
proper corporate purposes, BUT ONLY, in the case of clause (iv), upon
receipt of, in addition to Proper Instructions, a certified copy of a
resolution of the Board of Directors signed by an officer of the
Company and certified by the Secretary or an Assistant Secretary,
setting forth the purpose or purposes of such segregated account and
declaring such purposes to be proper corporate purposes.
2.10 OWNERSHIP CERTIFICATES FOR TAX PURPOSES. The Custodian shall
execute ownership and other certificates and affidavits for all
federal and state tax purposes in connection with receipt of income or
other payments with respect to domestic securities of the Portfolio
held by it and in connection with transfers of such securities.
2.11 REPORTS TO COMPANY BY INDEPENDENT PUBLIC ACCOUNTANTS. The
Custodian shall provide the Company, at such times as the Company may
reasonably require, with reports by independent public accountants on
the accounting systems, internal accounting control and procedures for
safeguarding securities, futures contracts and options on futures
contracts, including domestic securities deposited and/or maintained
in a Securities System, relating to the services provided by the
Custodian under this Agreement; such reports shall be of sufficient
scope and in sufficient detail as may reasonably be required by the
Company to provide reasonable assurance that any material inadequacies
would be disclosed by such examination, and, if there are no such
inadequacies, the reports shall so state.
3. DUTIES OF THE CUSTODIAN WITH RESPECT TO PROPERTY OF THE PORTFOLIO HELD
OUTSIDE OF THE UNITED STATES.
3.1 APPOINTMENT OF FOREIGN SUB-CUSTODIANS. The Custodian is
authorized and instructed to employ as sub-custodians for the
Portfolio's securities and other assets maintained outside of the
United States the foreign banking institutions, foreign securities
depositories and foreign clearing agencies designated on Schedule A
hereto ("foreign sub-custodians").
Upon receipt of Proper Instructions, together with a certified
resolution of the Company's Board of Directors, the Custodian and the
Company may agree to amend Schedule A hereto from time to time to
designate additional foreign banking institutions, foreign securities
depositories and foreign clearing agencies to act as sub-custodians.
Each foreign banking institution shall be authorized to deposit
securities in foreign securities depositories and foreign clearing
agencies authorized pursuant to Rule 17f-5 under the Investment
Company Act of 1940. Upon receipt of Proper Instructions from the
Company the Custodian shall cease the employment of any one or more of
such sub-custodians for maintaining custody of the Portfolio's assets.
3.2 ASSETS TO BE HELD. The Custodian shall limit the securities and
other assets
maintained in the custody of the foreign sub-custodian to: (a)
"foreign securities," as defined in paragraph (c)(1) of Rule 17f-5
under the Investment Company Act of 1940, and (b) cash and cash
equivalents in such amounts as the Custodian or the Company may
determine to be reasonably necessary to effect the Portfolio's foreign
securities transactions.
3.3 SEGREGATION OF SECURITIES. The Custodian shall identify on its
books as belonging to the Portfolio, the foreign securities of the
Portfolio held by each foreign sub-custodian. Each agreement pursuant
to which the Custodian employs a foreign banking institution shall
require that such institution establish a custody account for the
Custodian on behalf of its customers and physically segregate in that
account securities and other assets of the Custodian's customers, and,
in the event that such institution deposits the Portfolio's securities
in a foreign securities depository, the sub-custodian shall identify
on its books as belonging to the Custodian, as agent for the
Custodian's customers, the securities so deposited (all collectively
referred to as the "Account").
3.4 AGREEMENT WITH FOREIGN BANKING INSTITUTION. Each agreement with
a foreign banking institution shall provide that: (a) the Portfolio
assets will not be subject to any right, charge, security interest
lien or claim of any kind in favor of the foreign banking institution
or its creditors, except a claim of payment for their safe custody or
administration; (b) beneficial ownership for the Portfolio's assets
will be freely transferable without the payment of money or value
other than for custody or administration, which may include payment of
stamp duties or government taxes; (c) adequate records will be
maintained identifying the assets as belonging to the customers of
Custodian; (d) officers of or auditors employed by, or other
representatives of the Custodian, including independent public
accountants for the Company, will be given access to the books and
records of the foreign banking institution relating to its actions
given under its agreement with the Custodian or shall be given
confirmation of the contents of such books and records; and (e) assets
of the Portfolio held by the foreign sub-custodian will be subject
only to the instructions of the Custodian or its agents.
3.5 ACCESS OF INDEPENDENT ACCOUNTANTS OF THE COMPANY. Upon request
of the Company, the Custodian will use its best efforts to arrange for
the independent accountants of the Company to be afforded access to
the books and records of any foreign banking institution employed as a
foreign sub-custodian insofar as such books and records relate to the
performance of such foreign banking institutions under its agreement
with the Custodian.
3.6 REPORTS BY CUSTODIAN. The Custodian will supply to the Company
from time to time, as mutually agreed upon, statements in respect of
the securities and other assets of the Portfolio held by foreign
sub-custodians, including but not
limited to an identification of entities having possession of the
Portfolio's securities and other assets and advices or notifications
of any transfers of securities to or from each custodial account
maintained by a foreign sub-custodian for the Custodian on behalf of
the Portfolio indicating, as to securities acquired for the Portfolio,
the identity of the entity having physical possession of such
securities.
3.7 FOREIGN SECURITIES TRANSACTIONS.
1) Upon receipt of Proper Instructions, which may be continuing
instructions when deemed appropriate by the parties, the
Custodian shall make or cause its foreign sub-custodian to
transfer, exchange or deliver foreign securities of the
Portfolio, but except to the extent explicitly provided herein
only in any of the cases specified in Section 2.2.
2) Upon receipt of Proper Instructions, which may be continuing
instructions when deemed appropriate by the parties, the
Custodian shall pay out or cause its foreign sub-custodian to pay
out monies of the Portfolio, but except to the extent explicitly
provided herein only in any of the cases specified in Section
2.5.
3) Settlement and payment for securities received for the
account of the Portfolio and delivery of securities maintained
for the account of the Portfolio may, upon receipt of Proper
Instructions, be effected in accordance with the customary or
established securities trading or securities processing practices
and procedures in the jurisdiction or market in which the
transaction occurs, including, without limitation, delivering
securities to the purchaser thereof or to a dealer therefor (or
an agent for such purchaser or dealer) against a receipt with the
expectation of receiving later payment for such securities from
such purchaser or dealer.
4) With respect to any transaction involving foreign
securities, the Custodian or any sub-custodian in its discretion
may cause the Portfolio to be credited on either the contractual
settlement date or the actual settlement date with the proceeds
of any sale or exchange of foreign securities from the account of
the Portfolio and to be debited on either the contractual
settlement date or the actual settlement date for the cost of
foreign securities purchased or acquired for the Portfolio
according to Custodian's then current internal policies and
procedures pertaining to securities settlement, which policies
and procedures may change from time to time. Custodian shall
advise the Company of any changes to such policies and
procedures. Custodian may reverse any such credit or debit made
on the contractual settlement date if the transaction with
respect to which such credit or debit was made fails to settle
within a reasonable period, determined by Custodian in its
discretion, after the contractual
settlement date except that if any foreign securities delivered
pursuant to this section are returned by the recipient thereof,
Custodian may cause any such credits and debits to be reversed at
any time.
5) Securities maintained in the custody of a foreign
sub-custodian may be maintained in the name of such entity's
nominee to the same extent as set forth in Section 2.3 of this
Agreement and the Company agrees to hold any such nominee
harmless from any liability as a holder of record of such
securities.
6) Until the Custodian receives written instructions to the
contrary the Custodian shall, or shall cause the sub-custodian to
collect all interest and dividends paid on securities held in the
Portfolio's account, unless such payment is in default. Unless
otherwise instructed, Custodian shall convert interest, dividends
and principal received with respect to securities in the
Portfolio's account into United States dollars and Custodian
shall perform foreign exchange contracts for the conversion of
United States dollars to foreign currencies for the settlement of
trades whenever it is practicable to do so through customary
banking channels. Customary banking channels may vary based upon
industry practice in each jurisdiction, and shall include the
banking facilities of Custodian's affiliates, in accordance with
such affiliate's then prevailing internal policy on funds
repatriation. All risk and expense incident to such foreign
collection and conversions is the responsibility of the
Portfolio's account and Custodian shall have no responsibility
for fluctuation in exchange rates affecting collections or
conversions.
3.8 FOREIGN SECURITIES LENDING. Notwithstanding any other provisions
contained in this Agreement, Custodian and any sub-custodian shall
deliver and receive securities loaned or returned in connection with
securities lending transactions only upon and in accordance with
Proper Instructions; provided, if Custodian is not the lending agent
in connection with such securities lending, then neither Custodian or
any sub-custodian shall undertake, or otherwise be responsible for,
1) marking to market values for such loaned securities,
2) collection of dividends, interest or other disbursements or
distributions made with respect to such loaned securities,
3) receipt of corporate action notices, communications, proxies
or instruments with respect to such loaned securities, and
4) custody, safekeeping, valuation or any other actions or
services with respect to any collateral securing any such
securities lending
transactions.
In the event that Custodian is the Company's lending agent in
connection with a specific securities loan from the Portfolio,
Custodian shall undertake to perform all of the above duties with
regard to such loan, except that the Company shall not receive, nor be
enabled to vote, proxies in connection with such loaned security.
3.9 LIABILITY OF FOREIGN SUB-CUSTODIANS. Each agreement pursuant to
which the Custodian employs a foreign banking institution as a foreign
sub-custodian shall require the institution to exercise reasonable
care in the performance of its duties and to indemnify, and hold
harmless, the Custodian and Custodian's customers from and against any
loss, damage, cost, expense, liability or claim arising out of such
sub-custodian's negligence, fraud, bad faith, willful misconduct or
reckless disregard of its duties. At the election of the Company, it
shall be entitled to be subrogated to the right of the Custodian with
respect to any claims against a foreign banking institution as a
consequence of any such loss, damage, cost, expense, liability or
claim if and to the extent that the Portfolio has not been made whole
for any such loss, damage, cost, expense, liability or claim.
3.10 MONITORING RESPONSIBILITIES. The Custodian shall furnish
annually to the Company information concerning the foreign
sub-custodians employed by the Custodian. Such information shall be
similar in kind and scope to that furnished to the Company in
connection with the initial approval of this Agreement. In addition,
the Custodian will promptly inform the Company in the event that the
Custodian learns of a material adverse change in the financial
condition of a foreign sub-custodian or is notified by a foreign
banking institution employed as foreign sub-custodian that there
appears to be a substantial likelihood that its shareholders' equity
will decline below $200 million (United States dollars or the
equivalent thereof) or that its shareholders' equity has declined
below $200 million (in each case computed in accordance with generally
accepted United States accounting principles).
3.11 BRANCHES OF UNITED STATES BANKS. Except as otherwise set forth
in this Agreement, the provisions hereof shall not apply where the
custody of the Portfolio assets maintained in a foreign branch of a
banking institution which is a "bank" as defined by Section 2(a) (5)
of the Investment Company Act of 1940 which meets the qualification
set forth in Section 26(a) of said Act. The appointment of any such
branch as a sub-custodian shall be governed by Article 1 of this
Agreement.
3.12 EXPROPRIATION INSURANCE. Custodian represents that it does not
intend to obtain any insurance for the benefit of the Portfolio which
protects against the imposition of exchange control restrictions or
the transfer from any foreign jurisdiction of the proceeds of sale of
any securities or against confiscation, expropriation or
nationalization of any securities or the assets of the issuer of such
securities by a government of any foreign country in which the issuer
of such securities is organized or in which securities are held for
safekeeping either by Custodian or any sub-custodians in such country.
Custodian represents that its understanding of the position of the
Staff of the Securities and Exchange Commission is that any investment
company investing in securities of foreign issuers has the
responsibility for reviewing the possibility of the imposition of
exchange control restrictions which would affect the liquidity of such
investment company's assets and the possibility of exposure to
political risk, including the appropriateness of insuring against such
risk.
4. PROPER INSTRUCTIONS.
Proper Instructions as used herein means a writing signed or initialed
by one or more person or persons as the Board of Directors shall have from time
to time authorized. Each such writing shall set forth the specific transaction
or type of transaction involved, including a specific statement of the purpose
for which such action is requested. Oral instructions will be considered Proper
Instructions if the Custodian reasonably believes them to have been given by a
person authorized to give such instructions with respect to the transaction
involved. The Company shall cause all oral instructions to be confirmed in
writing. Upon receipt of a certificate of the Secretary or an Assistance
Secretary as to the authorization by the Board of Directors of the Company
accompanied by a detailed description of procedures approved by the Board of
Directors, Proper Instructions may include communication effected directly
between electro-mechanical or electronic devices provided that the Board of
Directors and the Custodian are satisfied that such procedures afford adequate
safeguards for the Portfolio's assets.
5. ACTIONS PERMITTED WITHOUT EXPRESS AUTHORITY.
The Custodian may in its discretion, or may cause its sub-custodian or
agent to, without express authority from the Company:
1) Submit securities to the issuer thereof or its agent when such
securities are matured, called, redeemed, retired or otherwise become
payable; provided that, in any such case, the cash or other
consideration is to be delivered to the Custodian;
2) Submit securities for mandatory exchange or conversion pursuant
to any plan of merger, consolidation, recapitalization, reorganization
or readjustment of the securities of the issuer of such securities, or
pursuant to provisions for conversion contained in such securities, or
pursuant to any deposit agreement; provided that, in any such case,
the new securities and cash, if any, are to be delivered to the
Custodian;
3) Execute in the name of the Portfolio such ownership and other
certificates as may be required to obtain payments in respect thereto,
provided that the Company shall have furnished to the Custodian any
information necessary in connection with such certificates;
4) Make payments to itself or others for minor expenses of handling
securities or other similar items relating to its duties under this
Agreement, PROVIDED, that all such payments shall be accounted for to
the Company;
5) Surrender securities in temporary form for securities in
definitive form;
6) Endorse for collection, in the name of the Portfolio, checks,
drafts and other negotiable instruments; and
7) In general, attend to all non-discretionary details in connection
with the sale, exchange, substitution, purchase, transfer and other
dealings with the securities and property of the Portfolio except
asotherwise directed by the Board of Directors of the Company.
6. PROXIES, NOTICES, REPORTS, ETC.
If Custodian or any agent or sub-custodian shall receive any proxies,
notices, reports, or other communications relative to any of the securities of
the Portfolio in connection with tender offers, reorganizations, mergers,
consolidations, or similar events which may have material impact upon the issuer
thereof, Custodian shall, on its behalf or on the behalf of agent or
sub-custodian promptly transmit any such communication to the Company by means
which shall permit the Company to take timely action. As specifically requested
by the Company, Custodian shall execute or deliver or shall cause the nominee in
whose name securities are registered to execute and deliver to the company
proxies relating to securities in the custody account registered in the name of
such nominee, but without indicating the manner in which such proxies are to be
voted. Custodian shall take such reasonable steps to vote bearer securities in
accordance with written instructions of the Company timely received by Custodian
or such other person or person as designated in or pursuant to the Custodian's
Operations Manual. Custodian shall have no liability for any loss or liability
occasioned by delay in the actual receipt by them or any agent or sub-custodian
of notice of any payment, redemption, or other transaction regarding securities
in the custody account in respect of which it has agreed to take action as
provided in Section 3.7 hereof, unless such delay is a result of their own
negligence, fraud, or willful misconduct.
7. EVIDENCE OF AUTHORITY.
The Custodian shall be protected in acting upon any instructions,
notice, request, consent, certificate or other instrument or paper believed by
it to be genuine and to have been properly executed by or on behalf of the
Company. The Company shall provide to Custodian a certified copy of a vote of
the Board of Directors of the Company as conclusive evidence (a) of the
authority of any person to act in accordance with such vote or (b) of any
determination or of any action by the Board of Directors pursuant to the
Articles of Incorporation as described in such vote, and such vote may be
considered as in full force and effect until receipt by the Custodian of written
notice to the contrary. The Company shall provide to Custodian specimen
signatures of those persons authorized to act on behalf of the Company by the
Board of Directors.
8. DUTIES OF CUSTODIAN WITH RESPECT TO THE BOOKS OF ACCOUNT AND CALCULATION OF
NET ASSET VALUE AND NET INCOME.
The Custodian shall cooperate with and supply necessary information to
the entity or entities appointed by the Board of Directors of the Company to
keep the books of account of the Portfolio and/or compute the net asset value
per share of the outstanding shares of the Portfolio.
9. RECORDS.
The Custodian shall create and maintain all records relating to its
activities and obligations under this Agreement in such manner as will meet the
obligations of the Company under the Investment Company Act of 1940, with
particular attention to Section 31 thereof and Rules 31a-1 and 31a-2 thereunder.
Custodian shall also maintain records as directed by the Company in connection
with applicable federal and state tax laws and any other law or administrative
rules or procedures with may be applicable to the Company. With respect to
securities and cash deposited with a Securities System, a sub-custodian or an
agent of Custodian, the Custodian shall identify on its books all such
securities and cash as belonging to the Portfolio. All such records shall be
the property of the Company and shall at all times during the regular business
hours of the Custodian be open for inspection by duly authorized officers,
employees or agents of the Company. Such records shall be made available to the
Company for review by employees and agents of the Securities and Exchange
Commission. Custodian shall furnish to the Company, and its agents as directed
by the Company, as of the close of business on the last day of each month a
statement showing all transactions and entries for the account of the Portfolio
during that month, and all holdings as of month-end.
All records so maintained in connection with the performance of its
duties under this Agreement shall remain the property of the Company and, in the
event of termination of this Agreement, shall be delivered to the Company.
Subsequent to such delivery, and surviving the termination of this Agreement,
the Company shall provide the Custodian access to examine and photocopy such
records as the Custodian, in its discretion, deems necessary, for so long as
such records are retained by the Company.
10. OPTION OF COMPANY'S INDEPENDENT ACCOUNTANT.
Custodian shall provide to the Company's independent accountants the
books and records of the Portfolio's account with respect to its activities
hereunder in connection with the preparation of the Company's Form N-1A, and
Form N-SAR or other annual reports to the Securities and Exchange Commission and
with respect to any other requirements of such commission.
11. TRANSFER TAXES.
The Company shall pay or reimburse the Custodian and any sub-custodian
for any transfer taxes payable upon transfers resulting from the termination of
this Agreement. The Custodian shall, and shall use its best efforts to cause
any sub-custodian to, execute such certificates in connection with securities
delivered to it or such sub-custodian under this Agreement as may be required,
under any applicable law or regulation, to exempt from taxation any transfers
and/or deliveries of any such securities which may be entitled to such
exemption.
12. COMPENSATION OF CUSTODIAN.
The Custodian shall be entitled to reasonable compensation for its
services and expenses as Custodian, as agreed upon from time to time between the
Company and the Custodian.
13. RESPONSIBILITY OF CUSTODIAN.
So long as and to the extent that it is in the exercise of reasonable
care, the Custodian shall not be responsible for the title, validity or
genuineness of any property or evidence of title thereto received by it or
delivered by it pursuant to this Agreement and shall be held harmless in acting
upon any notice, request, consent, certificate or other instrument reasonably
believed by it to be genuine and to be signed by the proper party or parties.
The Custodian shall be held to the exercise of reasonable care in carrying out
the provisions of this Agreement, but shall be kept indemnified by and shall be
without liability to the Company for any action taken or omitted by it in good
faith without negligence. It shall be entitled to rely on and may act upon
advice of counsel (who may be counsel for the Company) on all matters, and shall
be without liability for any action reasonably taken or omitted pursuant to such
advice.
The Company agrees to indemnify and hold harmless the Custodian, any
sub-custodian or agent of Custodian, or any nominees thereof from all taxes,
charges, expenses, assessments, claims and liabilities (including counsel fees)
incurred or assessed against any such entity in connection with the performance
of this Agreement, except normal out-of-pocket expenses associated with
securities trading activities and except such as may arise from such entity's
own negligent action, negligent failure to act or willful misconduct. The
Custodian is authorized to charge any account of the Portfolio for such items.
In the event of any advance of cash for any purpose made by the Custodian
resulting from orders or instructions of the Company, or in the event that the
Custodian or any nominee thereof shall incur or be assessed any taxes, charges,
expenses, assessments, claims or liabilities in connection with the performance
of this Agreement, except such as may arise from such entity's own negligent
action, negligent failure to act or willful misconduct, any property at any time
held for the account of the Portfolio shall be security therefore.
The Custodian shall not be liable for any loss or damage to the
Portfolio resulting from participation in a securities depository unless such
loss or damage arises by reason of any negligence, misfeasance, or willful
misconduct of officers or employees of the Custodian, or from its failure to
enforce effectively such rights as it may have against any securities depository
or from use of a sub-custodian or agent. Anything in the foregoing to the
contrary notwithstanding, the Custodian shall exercise, in the performance of
its obligations undertaken or reasonably assumed with respect to this Agreement,
reasonable care, for which the Custodian shall be responsible to the same extent
as if it were performing such duties directly and, in the case of foreign
agents, holding such securities and cash in the United States. The Custodian
shall be responsible for the securities and cash held by or deposited with any
sub-custodian or agent to the same extent as if such securities and cash were
directly held by or deposited with the Custodian. The Custodian hereby agrees
that it shall indemnify and hold the Portfolio harmless from and against any
loss which shall occur as a result of the failure of a foreign sub-custodian
holding the securities and cash to provide a level of safeguards for maintaining
the Portfolio's securities and cash not materially different from that provided
by a United States custodian holding such securities and cash in the United
States. It is also understood that the Custodian shall not have liability for
loss except by reason of the Custodian's negligence, fraud or willful
misconduct, or by reason of negligence, fraud or willful misconduct of any
sub-custodian or agent holding such securities or cash for the Portfolio.
The Custodian shall not be responsible for any loss of the Portfolio,
if such loss arises by reason of any cause or circumstances beyond the control
of the Custodian or any sub-custodian or agent acting on behalf of the
Custodian, including acts of civil or military authority, expropriation,
national emergency, Acts of God, insurrection, war, riots, or failure of
transportation, communication or power supply, or the failure of any person,
firm or corporation (other than the Custodian or any sub-custodian or agent
acting on behalf of the Custodian) to perform any obligation if such failure
results in any such loss.
14. EFFECTIVE PERIOD, TERMINATION AND AMENDMENT.
This Agreement shall become effective as of its execution, shall
continue in full force and effect until terminated as hereinafter provided, may
be amended at any time by mutual agreement of the parties hereto and may be
terminated by either party by an instrument in writing delivered or mailed,
postage prepaid to the other party, such termination to take effect not sooner
than thirty (30) days after the date of such delivery or mailing; PROVIDED,
however, that the Custodian shall not act under Section 2.8 hereof in the
absence of receipt of an initial certificate of the Secretary or an Assistant
Secretary that the Board of Directors of the Company have approved the initial
use of a particular Securities System as required in Rule 17f-4 under the
Investment Company Act of 1940, as amended; PROVIDED FURTHER, however, that the
Company shall not amend or terminate this Agreement in contravention of any
applicable federal or state regulations, or any provision of the Articles of
Incorporation, and further provided, that the Company may at any time by action
of its Board of Directors (i) substitute another bank or trust company for the
Custodian by giving notice as described above to the Custodian, or (ii)
immediately terminate this Agreement in the event of the appointment of a
conservator or receiver for the Custodian by the Comptroller of the Currency or
upon the happening of a like event at the direction of an appropriate regulatory
agency or court of competent jurisdiction.
Upon termination of the Agreement, the Company shall pay to the
Custodian such compensation as may be due as of the date of such termination and
shall likewise reimburse the
Custodian for its costs, expenses and disbursements.
Any notice or other communication authorized or required by this
Agreement to be given to the parties shall be sufficiently given if addressed to
such party and mailed postage prepaid or delivered to it at its office at the
address set forth below:
In the case of the Company: Fortis Worldwide Portfolios, Inc.
Mailing address: X.X. Xxx 00000
Xx. Xxxx, XX 00000
Street address: 000 Xxxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
In the case of the Custodian: First Bank National Association
c/o First Trust Center
000 Xxxx Xxxxx Xxxxxx, 0xx Xxxxx
Xx. Xxxx, XX 00000
Attention: Global Custody Division
15. SUCCESSOR CUSTODIAN.
If a successor custodian shall be appointed by the Board of Directors
of the Company, the Custodian shall, upon termination, deliver to such successor
custodian at the office of the Custodian, duly endorsed and in the form for
transfer, all securities then held by it hereunder and shall transfer to an
account of the successor custodian all of the Portfolio's securities held in a
Securities System.
If no such successor custodian shall be appointed, the Custodian
shall, in like manner, upon receipt of a certified copy of a vote of the Board
of Directors of the Company, deliver at the office of the Custodian and transfer
such securities, funds and other properties in accordance with such vote.
In the event that no written order designating a successor custodian
or certified copy of a vote of the Board of Directors shall have been delivered
to the Custodian on or before the date when such termination shall become
effective, then the Custodian shall have the right to deliver to a bank or trust
company, which is a "bank" as defined in the Investment Company Act of 1940,
doing business in the United States, of its own selection, having an aggregate
capital, surplus, and undivided profits, as shown by its last published report,
of not less than $25,000,000, all securities, funds and other properties held by
the Custodian and all instruments held by the Custodian relative thereto and all
other property held by it under this Agreement and to transfer to an account of
such successor custodian all of the Portfolio's securities held in any
Securities System. Thereafter, such bank or trust company shall be the
successor of the Custodian under this Agreement.
In the event that securities, funds and other properties remain in the
possession of the Custodian after the date of termination hereof owing to
failure of the Company to procure the certified copy of the vote referred to or
of the Board of Directors to appoint a successor custodian, the Custodian shall
be entitled to fair compensation for its services during such period as the
Custodian retains possession of such securities, funds and other properties, and
the provision of this Agreement relating to the duties and obligations of the
Custodian shall remain in full force and effect.
16. INTERPRETIVE AND ADDITIONAL PROVISIONS: AMENDMENT.
In connection with the operation of this Agreement, the Custodian and
the Company may from time to time agree on such provisions interpretive of or in
addition to the provisions of this Agreement as may in their joint opinion be
consistent with the general tenor of this Agreement. Any such interpretive or
additional provisions shall be in a writing signed by both parties and shall be
annexed hereto, PROVIDED that no such interpretive or additional provisions
shall contravene any applicable federal or state regulations or any provision of
the Articles of Incorporation of the Company. No interpretive or additional
provisions made as provided in the preceding sentence shall be deemed to be an
amendment of this Agreement. No provisions of this Agreement may be amended or
modified except by a written agreement executed by all parties hereto and
authorized or approved by the Board of Directors of the Company.
17. MINNESOTA LAW TO APPLY.
This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with laws of the State of Minnesota.
18. PRIOR AGREEMENTS; NON-ASSIGNABILITY OF AGREEMENT.
This Agreement supersedes and terminates, as of the date hereof, all
prior agreements between the Company and the Custodian relating to the custody
of the Portfolio's assets. This Agreement shall not be assignable by any party
hereto; provided, however, that any entity in to which the Company or the
Custodian, as the case may be, may be merged or converted or with which it may
be consolidated, or any entity succeeding to all or substantially all of the
business of the Company or the custody business of the Custodian, shall succeed
to the respective rights and shall assume the respective duties of the Company
or the Custodian, as the case may be, hereunder.
19. GENERAL.
Nothing expressed or mentioned in or to be implied from any provision
of this Agreement is intended to, or shall be construed to give any person or
corporation other than the parties hereto, any legal or equitable right, remedy
or claim under or in respect of this Agreement, or any covenant, condition or
provision herein contained, this Agreement and all of the covenants, conditions
and provisions hereof being intended to be and being for the sole and exclusive
benefit of the parties hereto and their respective successors and assigns.
IN WITNESS WHEREOF, each of the parties has caused this instrument to be
executed in its name and behalf by its duly authorized representative and its
seal to be hereunder affixed as of the 16th day of July, 1992.
ATTEST FORTIS WORLDWIDE PORTFOLIOS, INC.
/s/Xxxxxxx X. Xxxxxxx By: /s/xxxx Xxxxxxx
------------------------------ ------------------------------------
ATTEST FIRST BANK NATIONAL ASSOCIATION
/s/ Xxxxxxxxx Xxxxxx By: /s/ Xxxxxx Xxxxx
------------------------------ ------------------------------------
SCHEDULE A
FOREIGN SUB-CUSTODIAN BANKS
Country Bank
------- ----
Australia, New Zealand Australia & New Zealand Banking Group Limited
Belgium Banque Paribas Belgique
Canada Canadian Imperial Bank of Commerce
Denmark Den Denske Bank Aktieselskab
Finland Kansallis Osake Pankki
France Banque Paribas
Germany Bayerische Vereinsbank
Hong Kong, Indonesia, Malaysia, Thailand Hong Kong & Shanghai Banking Corporation
Japan Sumitomo Trust & Banking Company Limited
The Netherlands Amsterdam Rotterdam Bank, N.V.
Norway Christiania Bank
Singapore United Overseas Bank
Spain Banco Bilbao Vizcaya, S.A.
Sweden Skandinaviska Enskilda Banken
United Kingdom Midland Bank plc
FOREIGN BRANCHES OF U. S. CUSTODIAN BANK
Country Bank
------- ----
Italy Citibank, N.A., Italy
Mexico Citibank, N.A., Mexico
Switzerland Citibank, N.A., Switzerland
MAJORITY OWNED SUBSIDIARIES OF U. S. CUSTODIAN BANK
None
DEPOSITORIES
Country Depository
------- ----------
Transnational Euro-Clear, Belgium
Transnational CEDEL S.A., Luxembourg
Australia Austraclear Ltd
Belgium Caisse Interprofessionnell de Depots et de
Virement de Titres (CIK]
Canada Canadian Depository for Securities [CDS)
Denmark Vaerdipapircentralen (VP]
France Societe Interprofessionelle pour la
Comensation des Valuers Mobilieres (SICOVAM]
Germany Deutscher Kassenverrin AG [DKV]
Italy Monte Titoli SpA
Japan Japan Securities Depository Center (JASDEC].
Mexico S.D. Indeval, S.A. de C.V. CINDEVAL)
The Netherlands Nederlands Centraal Instituut voor Firaal
Effectenverkeer [NECIGEF]
Norway Verdipapirsentraien (VPS]
Sweden Vaerdepappercentralen (VPC]
Switzerland Schweizerische Effektekn-Giro AG [SEGA]