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CUSTODIAN AGREEMENT
Dated as of: May 31, 1995
Between
Fidelity Advisor Korea Fund, Inc.
and
The Chase Manhattan Bank, N.A.
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TABLE OF CONTENTS
ARTICLE Page
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I. APPOINTMENT OF CUSTODIAN 1
II. POWERS AND DUTIES OF CUSTODIAN 1
2.01 Safekeeping.................................................................. 1
2.02 Manner of Holding Securities................................................. 1
2.03 Security Purchases........................................................... 2
2.04 Exchanges of Securities...................................................... 2
2.05 Sales of Securities.......................................................... 2
2.06 Depositary Receipts.......................................................... 3
2.07 Exercise of Rights; Tender Offers............................................ 3
2.08 Stock Dividends, Rights, Etc................................................. 3
2.09 Options...................................................................... 4
2.10 Futures Contracts............................................................ 4
2.11 Borrowing.................................................................... 4
2.12 Interest Bearing Deposits.................................................... 4
2.13 Foreign Exchange Transactions................................................ 5
2.14 Securities Loans............................................................. 5
2.15 Collections.................................................................. 6
2.16 Dividends, Distributions and Redemptions..................................... 6
2.17 Proceeds from Shares Sold.................................................... 6
2.18 Proxies, Notices, Etc........................................................ 6
2.19 Bills and Other Disbursements................................................ 7
2.20 Nondiscretionary Functions................................................... 7
2.21 Bank Accounts................................................................ 7
2.22 Deposit of Fund Assets in Securities Systems................................. 8
2.23 Other Transfers.............................................................. 9
2.24 Establishment of Segregated Account.......................................... 9
2.25 Custodian's Books and Records................................................ 9
2.26 Opinion of Fund's Independent Certified Public
Accountants......................................................... 10
2.27 Reports of Independent Certified Public Accountants.......................... 10
2.28 Overdraft Facility........................................................... 10
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III. PROPER INSTRUCTIONS, SPECIAL INSTRUCTIONS
AND RELATED MATTERS 11
3.01 Proper Instructions and Special Instructions.................................11
3.02 Authorized Persons...........................................................11
3.03 Persons Having Access to Assets of the Fund.................................11
3.04 Actions of the Custodian Based on Proper Instructions and
Special Instructions......................................................12
IV. SUBCUSTODIANS 12
4.01 Domestic Subcustodians.......................................................12
4.02 Foreign Subcustodians and Interim Subcustodians..............................12
4.03 Special Subcustodians........................................................13
4.04 Termination of a Subcustodian................................................14
4.05 Certification Regarding Foreign Subcustodians................................14
V. STANDARD OF CARE; INDEMNIFICATION 14
5.01 Standard of Care.............................................................14
5.02 Liability of Custodian for Actions of Other Persons..........................15
5.03 Indemnification..............................................................16
5.04 Investment Limitations.......................................................17
5.05 Fund's Right to Proceed......................................................17
VI. COMPENSATION 17
VII. TERMINATION 17
7.01 Termination of Agreement.....................................................17
VIII. DEFINED TERMS 18
IX. MISCELLANEOUS 19
9.01 Execution of Documents, Etc..................................................19
9.02 Representative Capacity; Nonrecourse Obligations.............................19
9.03 Several Obligations of the Fund..............................................19
9.04 Representations and Warranties...............................................20
9.05 Entire Agreement.............................................................20
9.06 Waivers and Amendments.......................................................20
9.07 Interpretation...............................................................20
9.08 Captions.....................................................................21
9.09 Governing Law................................................................21
9.10 Notices......................................................................21
9.11 Assignment...................................................................21
9.12 Counterparts.................................................................21
9.13 Confidentiality; Survival of Obligations.....................................21
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APPENDICES
Appendix "A" - List of Foreign Subcustodians
and Special Subcustodians
Appendix "B" - Procedures Relating to
Custodian's Security Interest
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CUSTODIAN AGREEMENT
AGREEMENT made as of the 31st day of May, 1995 between Fidelity Advisor
Korea Fund, Inc. (the "Fund") and The Chase Manhattan Bank, N.A. (the
"Custodian").
W I T N E S S E T H
WHEREAS, the Fund desires to appoint the Custodian as custodian in
accordance with the provisions of the Investment Company Act of 1940 (the "1940
Act") and the rules and regulations thereunder, under the terms and conditions
set forth in this Agreement, and the Custodian has agreed so to act as
custodian.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto agree as follows:
ARTICLE I
APPOINTMENT OF CUSTODIAN
The Fund hereby employs and appoints the Custodian as a custodian, subject
to the terms and provisions of this Agreement. The Fund shall deliver to the
Custodian, or shall cause to be delivered to the Custodian, cash, securities
and other assets owned by the Fund from time to time during the term of this
Agreement.
ARTICLE II
POWERS AND DUTIES OF CUSTODIAN
As custodian, the Custodian shall have and perform the powers and duties
set forth in this Article II. Pursuant to and in accordance with Article IV
hereof, the Custodian may appoint one or more Subcustodians (as hereinafter
defined) to exercise the powers and perform the duties of the Custodian set
forth in this Article II and references to the Custodian in this Article II
shall include any Subcustodian so appointed.
Section 2.01. Safekeeping. The Custodian shall keep safely all cash,
securities and other assets of the Fund delivered to the Custodian, and the
Custodian shall, from time to time, accept delivery of cash, securities and
other assets for safekeeping.
Section 2.02. Manner of Holding Securities.
(a) The Custodian shall at all times hold securities of the Fund either:
(i) by physical possession of the share certificates or other instruments
representing such securities in registered or bearer form; or (ii) in
book-entry form by a Securities System (as hereinafter defined) in accordance
with the provisions of Section 2.22 below.
(b) The Custodian shall at all times hold registered securities of the
Fund in the name of the Custodian, the Fund or a nominee of either of them,
unless specifically directed by Proper Instructions to hold such registered
securities in so-called street name; provided that, in any event, all such
securities and other assets shall be held in an account of the Custodian
containing only assets of the Fund, or only assets held by Custodian as a
fiduciary or custodian for customers; and provided further, that the records of
the Custodian shall indicate at all times the Fund or other customer for which
such securities and other assets are held in such account and the respective
interests therein.
Section 2.03. Security Purchases. Upon receipt of Proper Instructions
(as hereinafter defined), the Custodian shall pay for and receive securities
purchased for the account of the Fund, provided that payment shall be made by
the Custodian only upon receipt of the securities: (a) by the Custodian; (b)
by a clearing corporation of a national securities exchange of which the
Custodian is a member; or (c) by a Securities System. Notwithstanding the
foregoing, upon receipt of Proper Instructions: (i) in the case of a
repurchase agreement, the Custodian may release funds to a Securities System
prior to the
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receipt of advice from the Securities System that the securities underlying such
repurchase agreement have been transferred by book-entry into the Account (as
hereinafter defined) maintained with such Securities System by the Custodian,
provided that the Custodian's instructions to the Securities system require that
the Securities System may make payment of such funds to the other party to the
repurchase agreement only upon transfer by book-entry of the securities
underlying the repurchase agreement into the Account; (ii) in the case of time
deposits, call account deposits, currency deposits, and other deposits, foreign
exchange transactions, futures contracts or options, pursuant to Sections 2.09,
2.10, 2.12 and 2.13 hereof, the Custodian may make payment therefor before
receipt of an advice or confirmation evidencing said deposit or entry into such
transaction; (iii) in the case of the purchase of securities, the settlement of
which occurs outside of the United States of America, the Custodian may make
payment therefor and receive delivery of such securities in accordance with
local custom and practice generally accepted by Institutional Clients (as
hereinafter defined) in the country in which the settlement occurs, but in all
events subject to the standard of care set forth in Article V hereof; and (iv)
in the case of the purchase of securities in which, in accordance with standard
industry custom and practice generally accepted by Institutional Clients with
respect to such securities, the receipt of such securities and the payment
therefor take place in different countries, the Custodian may receive delivery
of such securities and make payment therefor in accordance with standard
industry custom and practice for such securities generally accepted by
Institutional Clients, but in all events subject to the standard of care set
forth in Article V hereof. For purposes of this Agreement, an "Institutional
Client" shall mean a major commercial bank, corporation, insurance company, or
substantially similar institution, which, as a substantial part of its business
operations, purchases or sells securities and makes use of custodial services.
Section 2.04. Exchanges of Securities. Upon receipt of Proper
Instructions, the Custodian shall exchange securities held by it for the
account of the Fund for other securities in connection with any reorganization,
recapitalization, split-up of shares, change of par value, conversion or other
event relating to the securities or the issuer of such securities, and shall
deposit any such securities in accordance with the terms of any reorganization
or protective plan. The Custodian shall, without receiving Proper
Instructions: surrender securities in temporary form for definitive
securities; surrender securities for transfer into the name of the Custodian,
the Fund or a nominee of either of them, as permitted by Section 2.02(b); and
surrender securities for a different number of certificates or instruments
representing the same number of shares or same principal amount of
indebtedness, provided that the securities to be issued will be delivered to
the Custodian or a nominee of the Custodian.
Section 2.05. Sales of Securities. Upon receipt of Proper Instructions,
the Custodian shall make delivery of securities which have been sold for the
account of the Fund, but only against payment therefor in the form of: (a)
cash, certified check, bank cashier's check, bank credit, or bank wire
transfer; (b) credit to the account of the custodian with a clearing
corporation of a national securities exchange of which the Custodian is a
member; or (c) credit to the Account of the Custodian with a Securities System,
in accordance with the provisions of Section 2.22 hereof. Notwithstanding the
foregoing: (i) in the case of the sale of securities, the settlement of which
occurs outside of the United States of America, such securities shall be
delivered and paid for in accordance with local custom and practice generally
accepted by Institutional Clients in the country in which the settlement
occurs, but in all events subject to the standard of care set forth in Article
V hereof; (ii) in the case of the sale of securities in which, in accordance
with standard industry custom and practice generally accepted by Institutional
Clients with respect to such securities, the delivery of such securities and
receipt of payment therefor take place in different countries, the Custodian
may deliver such securities and receive payment therefor in accordance with
standard industry custom and practice for such securities generally accepted by
Institutional Clients, but in all events subject to the standard of care set
forth in Article V hereof; and (iii) in the case of securities held in physical
form, such securities shall be delivered and paid for in accordance with
"street delivery custom" to a broker or its clearing agent, against delivery to
the Custodian of a receipt for such securities, provided that the Custodian
shall have taken reasonable steps to ensure prompt collection of the payment
for, or the return of, such securities by the broker or its clearing agent, and
provided further that the Custodian shall not be responsible for the selection
of or the failure or inability to perform of such broker or its clearing agent.
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Section 2.06. Depositary Receipts. Upon receipt of Proper Instructions,
the Custodian shall surrender securities to the depositary used for such
securities by an issuer of American Depositary Receipts or Global Depositary
Receipts (hereinafter referred to, collectively, as "ADRs"), against a written
receipt therefor adequately describing such securities and written evidence
satisfactory to the Custodian that the depositary has acknowledged receipt of
instructions to issue ADRs with respect to such securities in the name of the
Custodian or a nominee of the Custodian, for delivery to the Custodian at such
place as the Custodian may from time to time designate. Upon receipt of Proper
Instructions, the Custodian shall surrender ADRs to the issuer thereof, against
a written receipt therefor adequately describing the ADRs surrendered and
written evidence satisfactory to the Custodian that the issuer of the ADRs has
acknowledged receipt of instructions to cause its depository to deliver the
securities underlying such ADRs to the Custodian.
Section 2.07. Exercise of Rights; Tender Offers. Upon receipt of Proper
Instructions, the Custodian shall: (a) deliver warrants, puts, calls, rights
or similar securities to the issuer or trustee thereof, or to the agent of such
issuer or trustee, for the purpose of exercise or sale, provided that the new
securities, cash or other assets, if any, acquired as a result of such actions
are to be delivered to the Custodian; and (b) deposit securities upon
invitations for tenders thereof, provided that the consideration for such
securities is to be paid or delivered to the Custodian, or the tendered
securities are to be returned to the Custodian. Notwithstanding any provision
of this Agreement to the contrary, the Custodian shall take all necessary
action, unless otherwise directed to the contrary in Proper Instructions, to
comply with the terms of all mandatory or compulsory exchanges, calls, tenders,
redemptions, or similar rights of security ownership, and shall promptly notify
the Fund of such action in writing by facsimile transmission or in such other
manner as the Fund and Custodian may agree in writing.
Section 2.08. Stock Dividends, Rights, Etc. The Custodian shall receive
and collect all stock dividends, rights and other items of like nature and,
upon receipt of Proper Instructions, take action with respect to the same as
directed in such Proper Instructions.
Section 2.09. Options. Upon receipt of Proper Instructions and in
accordance with the provisions of any agreement between the Custodian, any
registered broker-dealer and, if necessary, the Fund relating to compliance
with the rules of the Options Clearing Corporation or of any registered
national securities exchange or similar organization(s), the Custodian shall:
(a) receive and retain confirmations or other documents, if any, evidencing the
purchase or writing of an option on a security or securities index by the Fund;
(b) deposit and maintain in a segregated account, securities (either physically
or by book-entry in a Securities System), cash or other assets; and (c) pay,
release and/or transfer such securities, cash or other assets in accordance
with notices or other communications evidencing the expiration, termination or
exercise of such options furnished by the Options Clearing Corporation, the
securities or options exchange on which such options are traded, or such other
organization as may be responsible for handling such option transactions. The
Fund and the broker-dealer shall be responsible for the sufficiency of assets
held in any segregated account established in compliance with applicable margin
maintenance requirements and the performance of other terms of any option
contract.
Section 2.10. Futures Contracts. Upon receipt of Proper Instructions, or
pursuant to the provisions of any futures margin procedural agreement among the
Fund, the Custodian and any futures commission merchant (a "Procedural
Agreement"), the Custodian shall: (a) receive and retain confirmations, if
any, evidencing the purchase or sale of a futures contract or an option on a
futures contract by the Fund; (b) deposit and maintain in a segregated account,
cash, securities and other assets designated as initial, maintenance or
variation "margin" deposits intended to secure the Fund's performance of its
obligations under any futures contracts purchased or sold or any options on
futures contracts written by the Fund, in accordance with the provisions of any
Procedural Agreement designed to comply with the rules of the Commodity Futures
Trading Commission and/or any commodity exchange or contract market (such as
the Chicago Board of Trade), or any similar organization(s), regarding such
margin deposits; and (c) release assets from and/or transfer assets into such
margin accounts only in accordance with any such Procedural Agreements. The
Fund and such futures commission merchant shall be responsible for the
sufficiency of assets held in the segregated account in
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compliance with applicable margin maintenance requirements and the performance
of any futures contract or option on a futures contract in accordance with its
terms.
Section 2.11. Borrowing. Upon receipt of Proper Instructions, the
Custodian shall deliver securities of the Fund to lenders or their agents, or
otherwise establish a segregated account as agreed to by the Fund and the
Custodian, as collateral for borrowings effected by the Fund, provided that
such borrowed money is payable by the lender (a) to or upon the Custodian's
order, as Custodian for the Fund, and (b) concurrently with delivery of such
securities.
Section 2.12. Interest Bearing Deposits.
Upon receipt of Proper Instructions directing the Custodian to purchase
interest bearing fixed term and call deposits (hereinafter referred to
collectively, as "Interest Bearing Deposits") for the account of the Fund, the
Custodian shall purchase such Interest Bearing Deposits in the name of the Fund
with such banks or trust companies (including the Custodian, any Subcustodian or
any subsidiary or affiliate of the Custodian) (hereinafter referred to as
"Banking Institutions") and in such amounts as the Fund may direct pursuant to
Proper Instructions. Such Interest Bearing Deposits may be denominated in U.S.
Dollars or other currencies, as the Fund may determine and direct pursuant to
Proper Instructions. The Custodian shall include in its records with respect to
the assets of the Fund appropriate notation as to the amount and currency of
each such Interest Bearing Bank Deposit, the accepting Banking Institution and
all other appropriate details, and shall retain such forms of advice or receipt
evidencing such account, if any, as may be forwarded to the Custodian by the
Banking Institution. The responsibilities of the Custodian to the Fund for
Interest Bearing Deposits accepted on the Custodian's books in the United States
shall be that of a U.S. bank for a similar deposit. With respect to Interest
Bearing Deposits other than those accepted on the Custodian's books, (a) the
Custodian shall be responsible for the collection of income as set forth in
Section 2.15 and the transmission of cash and instructions to and from such
accounts; and (b) the Custodian shall have no duty with respect to the selection
of the Banking Institution or, so long as the Custodian acts in accordance with
Proper Instructions, for the failure of such Banking Institution to pay upon
demand. Upon receipt of Proper Instructions, the Custodian shall take such
reasonable actions as the Fund deems necessary or appropriate to cause each such
Interest Bearing Deposit Account to be insured to the maximum extent possible by
all applicable deposit insurers including, without limitation, the Federal
Deposit Insurance Corporation.
Section 2.13. Foreign Exchange Transactions
(a) Foreign Exchange Transactions Other than as Principal. Upon
receipt of Proper Instructions, the Custodian shall settle foreign exchange
contracts or options to purchase and sell foreign currencies for spot and future
delivery on behalf of and for the account of the Fund with such currency brokers
or Banking Institutions as the Fund may determine and direct pursuant to Proper
Instructions. The Custodian shall be responsible for the transmission of cash
and instructions to and from the currency broker or Banking Institution with
which the contract or option is made, the safekeeping of all certificates and
other documents and agreements evidencing or relating to such foreign exchange
transactions and the maintenance of proper records as set forth in Section
2.25. The Custodian shall have no duty with respect to the selection of the
currency brokers or Banking Institutions with which the Fund deals or, so long
as the Custodian acts in accordance with Proper Instructions, for the failure
of such brokers or Banking Institutions to comply with the terms of any
contract or option.
(b) Foreign Exchange Contracts as Principal. The Custodian shall
not be obligated to enter into foreign exchange transactions as principal.
However, if the Custodian has made available to the Fund its services as a
principal in foreign exchange transactions, upon receipt of Proper Instructions,
the Custodian shall enter into foreign exchange contracts or options to purchase
and sell foreign currencies for spot and future delivery on behalf of and for
the account of the Fund with the Custodian as principal. The Custodian shall be
responsible for the selection of the currency brokers or Banking Institutions
and the failure of such currency brokers or Banking Institutions to comply with
the terms of any contract or option.
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(c) Payments. Notwithstanding anything to the contrary contained
herein, upon receipt of Proper Instructions the Custodian may, in connection
with a foreign exchange contract, make free outgoing payments of cash in the
form of U.S. Dollars or foreign currency prior to receipt of confirmation of
such foreign exchange contract or confirmation that the countervalue currency
completing such contract has been delivered or received.
Section 2.14. Securities Loans. Upon receipt of Proper Instructions, the
Custodian shall, in connection with loans of securities by the Fund, deliver
securities of the Fund to the borrower thereof prior to receipt of the
collateral, if any, for such borrowing; provided that, in cases of loans of
securities secured by cash collateral, the Custodian's instructions to the
Securities System shall require that the Securities System deliver the
securities of the Fund to the borrower thereof only upon receipt of the
collateral for such borrowing.
Section 2.15. Collections. The Custodian shall, and shall cause any
Subcustodian to: (a) collect amounts due and payable to the Fund with respect
to portfolio securities and other assets of the Fund; (b) promptly credit to
the account of the Fund all income and other payments relating to portfolio
securities and other assets held by the Custodian hereunder upon Custodian's
receipt of such income or payments or as otherwise agreed in writing by the
Custodian and the Fund; (c) promptly endorse and deliver any instruments
required to effect such collections; (d) promptly execute ownership and other
certificates and affidavits for all federal, state and foreign tax purposes in
connection with receipt of income, capital gains or other payments with respect
to portfolio securities and other assets of the Fund, or in connection with the
purchase, sale or transfer of such securities or other assets; and (e) promptly
file any certificates or other affidavits for the refund or reclaim of foreign
taxes paid, and promptly notify the Fund of any changes to law, interpretative
rulings or procedures regarding such reclaims, and otherwise use all available
measures customarily used to minimize the imposition of foreign taxes at
source, and promptly inform the Fund of alternative means of minimizing such
taxes of which the Custodian shall become aware (or with the exercise of
reasonable care should have become aware); provided, however, that with respect
to Fund securities registered in so-called street name, the Custodian shall use
its best efforts to collect amounts due and payable to the Fund. The Custodian
shall promptly notify the Fund in writing by facsimile transmission or in such
other manner as the Fund and Custodian may agree in writing if any amount
payable with respect to portfolio securities or other assets of the Fund is not
received by the Custodian when due. The Custodian shall not be responsible for
the collection of amounts due and payable with respect to portfolio securities
or other assets that are in default.
Section 2.16. Dividends, Distributions and Redemptions. The Custodian
shall promptly release funds or securities: (a) upon receipt of Proper
Instructions, to one or more Distribution Accounts designated by the Fund in
such Proper Instructions; or (b) upon receipt of Special Instructions, as
otherwise directed by the Fund, for the purpose of the payment of dividends or
other distributions to shareholders of the Fund, and payment to shareholders
who have requested repurchase or redemption of their shares of the Fund
(collectively, the "Shares"). For purposes of this Agreement, a "Distribution
Account" shall mean an account established at a Banking Institution designated
by the Fund in Special Instructions.
Section 2.17. Proceeds from Shares Sold. The Custodian shall receive
funds representing cash payments received for Shares issued or sold from time to
time by the Fund, and shall promptly credit such funds to the account(s) of the
applicable Fund). The Custodian shall promptly notify the Fund of Custodian's
receipt of cash in payment for Shares issued by the Fund by facsimile
transmission or in such other manner as the Fund and Custodian may agree in
writing. Upon receipt of Proper Instructions, the Custodian shall: (a) deliver
all federal funds received by the Custodian in payment for Shares in payment for
such investments as may be set forth in such Proper Instructions and at a time
agreed upon between the Custodian and the Fund; and (b) make federal funds
available to the Fund as of specified times agreed upon from time to time by the
Fund and the Custodian, in the amount of checks received in payment for Shares
which are deposited to the accounts of the Fund.
Section 2.18. Proxies, Notices, Etc. The Custodian shall deliver to the
Fund, in the most expeditious manner practicable, all forms of proxies, all
notices of meetings, and any other notices or announcements affecting or
relating to securities owned by the Fund that are received by the Custodian,
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any Subcustodian, or any nominee of either of them, and, upon receipt of Proper
Instructions, the Custodian shall execute and deliver, or cause such
Subcustodian or nominee to execute and deliver, such proxies or other
authorizations as may be required. Except as directed pursuant to Proper
Instructions, neither the Custodian nor any Subcustodian or nominee shall vote
upon any such securities, or execute any proxy to vote thereon, or give any
consent or take any other action with respect thereto.
Section 2.19. Bills and Other Disbursements. Upon receipt of Proper
Instructions, the Custodian shall pay or cause to be paid, all bills,
statements, or other obligations of the Fund.
Section 2.20. Nondiscretionary Functions. The Custodian shall attend to
all nondiscretionary details in connection with the sale, exchange,
substitution, purchase, transfer or other dealings with securities or other
assets of the Fund held by the Custodian, except as otherwise directed from
time to time pursuant to Proper Instructions.
Section 2.21. Bank Accounts
(a) Accounts with the Custodian and any Subcustodians. The Custodian shall
open and operate a bank account or accounts (hereinafter referred to
collectively, as "Bank Accounts") on the books of the Custodian or any
Subcustodian provided that such account(s) shall be in the name of the
Custodian or a nominee of the Custodian, for the account of the Fund, and shall
be subject only to the draft or order of the Custodian; provided however, that
such Bank Accounts in countries other than the United States may be held in an
account of the Custodian containing only assets held by the Custodian as a
fiduciary or custodian for customers, and provided further, that the records of
the Custodian shall indicate at all times the Fund or other customer for which
such securities and other assets are held in such account and the respective
interests therein. Such Bank Accounts may be denominated in either U.S.
Dollars or other currencies. The responsibilities of the Custodian to the Fund
for deposits accepted on the Custodian's books in the United States shall be
that of a U.S. bank for a similar deposit. The responsibilities of the
Custodian to the Fund for deposits accepted on any Subcustodian's books shall
be governed by the provisions of Section 5.02.
(b) Accounts With Other Banking Institutions. The Custodian may open and
operate Bank Accounts on behalf of the Fund, in the name of the Custodian or a
nominee of the Custodian, at a Banking Institution other than the Custodian or
any Subcustodian, provided that such account(s) shall be in the name of the
Custodian or a nominee of the Custodian, for the account of the Fund, and shall
be subject only to the draft or order of the Custodian; provided however, that
such Bank Accounts may be held in an account of the Custodian containing only
assets held by the Custodian as a fiduciary or custodian for customers, and
provided further, that the records of the Custodian shall indicate at all times
the Fund or other customer for which such securities and other assets are held
in such account and the respective interests therein. Such Bank Accounts may be
denominated in either U.S. Dollars or other currencies. Subject to the
provisions of Section 5.01(a), the Custodian shall be responsible for the
selection of the Banking Institution and for the failure of such Banking
Institution to pay according to the terms of the deposit.
(c) Deposit Insurance. Upon receipt of Proper Instructions, the Custodian
shall take such reasonable actions as the Fund deems necessary or appropriate
to cause each deposit account established by the Custodian pursuant to this
Section 2.21 to be insured to the maximum extent possible by all applicable
deposit insurers including, without limitation, the Federal Deposit Insurance
Corporation.
Section 2.22. Deposit of Fund Assets in Securities Systems. The
Custodian may deposit and/or maintain domestic securities owned by the Fund in:
(a) The Depository Trust Company; (b) the Participants Trust Company; (c) any
book-entry system as provided in (i) Subpart O of Treasury Circular Xx. 000, 00
XXX 306.115, (ii) Subpart B of Treasury Circular Public Debt Series Xx. 00-00,
00 XXX 350.2, or (iii) the book-entry regulations of federal agencies
substantially in the form of 31 CFR 306.115; or (d) any other domestic clearing
agency registered with the Securities and Exchange Commission ("SEC") under
Section 17A of the Securities Exchange Act of 1934 (or as may otherwise be
authorized by the Securities and Exchange Commission to serve in the capacity
of depository or
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clearing agent for the securities or other assets of investment companies) which
acts as a securities depository and the use of which the Fund has previously
approved by Special Instructions (as hereinafter defined) (each of the foregoing
being referred to in this Agreement as a "Securities System"). Use of a
Securities System shall be in accordance with applicable Federal Reserve Board
and SEC rules and regulations, if any, and subject to the following provisions:
(A) The Custodian may deposit and/or maintain securities held hereunder in
a Securities System, provided that such securities are represented in an
account ("Account") of the Custodian in the Securities System which Account
shall not contain any assets of the Custodian other than assets held as a
fiduciary, custodian, or otherwise for customers and shall be so designated on
the books and records of the Securities System.
(B) The Securities System shall be obligated to comply with the
Custodian's directions with respect to the securities held in such Account and
shall not be entitled to a lien against the assets in such Account for
extensions of credit to the Custodian other than for payment of the purchase
price of such assets.
(C) The Fund hereby designates the Custodian as the party in whose name
any securities deposited by the Custodian in the account are to be registered.
(D) The books and records of the Custodian shall at all times identify
those securities belonging to the Fund which are maintained in a Securities
System.
(E) The Custodian shall pay for securities purchased for the account of
the Fund only upon (w) receipt of advice from the Securities System that such
securities have been transferred to the Account of the Custodian, and (x) the
making of an entry on the records of the Custodian to reflect such payment and
transfer for the account of the Fund. The Custodian shall transfer securities
sold for the account of the Fund only upon (y) receipt of advice from the
Securities System that payment for such securities has been transferred to the
Account of the Custodian, and (z) the making of an entry on the records of the
Custodian to reflect such transfer and payment for the account of the Fund.
Copies of all advices from the Securities System relating to transfers of
securities for the account of the Fund shall identify the Fund and shall be
maintained for the Fund by the Custodian. The Custodian shall deliver to the
Fund on the next succeeding business day daily transaction reports which shall
include each day's transactions in the Securities System for the account of the
Fund. Such transaction reports shall be delivered to the Fund or any agent
designated by the Fund pursuant to Proper Instructions, by computer or in such
other manner as the Fund and Custodian may agree in writing.
(F) The Custodian shall, if requested by the Fund pursuant to Proper
Instructions, provide the Fund with all reports obtained by the Custodian or
any Subcustodian with respect to a Securities System's accounting system,
internal accounting control and procedures for safeguarding securities
deposited in the Securities System.
(G) Upon receipt of Special Instructions, the Custodian shall terminate
the use of any Securities System (except the federal book-entry system) on
behalf of any Fund as promptly as practicable and shall take all actions
reasonably practicable to safeguard the securities of the Fund maintained with
such Securities System.
Section 2.23. Other Transfers.
(a) Upon receipt of Proper Instructions, the Custodian shall transfer to
or receive from a third party that has been appointed to serve as an additional
custodian of the Fund (an "Additional Custodian") securities, cash and other
assets of the Fund in accordance with such Proper Instructions. Each
Additional Custodian shall be identified as such on Appendix A, as the same may
be amended from time to time in accordance with the provisions of Section
9.06(a).
(b) Upon receipt of Special Instructions, the Custodian shall make such
other dispositions of securities, funds or other property of the Fund in a
manner or for purposes other than as expressly set forth in this Agreement,
provided that the Special Instructions relating to such disposition shall
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include a statement of the purpose for which the delivery is to be made, the
amount of funds and/or securities to be delivered, and the name of the person
or persons to whom delivery is to be made, and shall otherwise comply with the
provisions of Sections 3.01 and 3.03 hereof.
Section 2.24. Establishment of Segregated Account. Upon receipt of
Proper Instructions, the Custodian shall establish and maintain on its books a
segregated account or accounts for and on behalf of the Fund, into which
account or accounts may be transferred cash and/or securities or other assets
of the Fund, including securities maintained by the Custodian in a Securities
System pursuant to Section 2.22 hereof, said account or accounts to be
maintained: (a) for the purposes set forth in Sections 2.09, 2.10 and 2.11
hereof; (b) for the purposes of compliance by the Fund with the procedures
required by Investment Company Act Release No. 10666, or any subsequent release
or releases of the SEC relating to the maintenance of segregated accounts by
registered investment companies; or (c) for such other purposes as set forth,
from time to time, in Special Instructions.
Section 2.25. Custodian's Books and Records. The Custodian shall provide
any assistance reasonably requested by the Fund in the preparation of reports to
Fund shareholders and others, audits of accounts, and other ministerial matters
of like nature. The Custodian shall maintain complete and accurate records with
respect to securities and other assets held for the accounts of the Fund as
required by the rules and regulations of the SEC applicable to investment
companies registered under the 1940 Act, including: (a) journals or other
records of original entry containing a detailed and itemized daily record of all
receipts and deliveries of securities (including certificate and transaction
identification numbers, if any), and all receipts and disbursements of cash; (b)
ledgers or other records reflecting (i) securities in transfer, (ii) securities
in physical possession, (iii) securities borrowed, loaned or collateralizing
obligations of the Fund, (iv) monies borrowed and monies loaned (together with a
record of the collateral therefor and substitutions of such collateral), (v)
dividends and interest received, (vi) the amount of tax withheld by any person
in respect of any collection made by the Custodian or any Subcustodian, and
(vii) the amount of reclaims or refunds for foreign taxes paid; and (c) canceled
checks and bank records related thereto. The Custodian shall keep such other
books and records of the Fund as the Fund shall reasonably request. All such
books and records maintained by the Custodian shall be maintained in a form
acceptable to the Fund and in compliance with the rules and regulations of the
SEC, including, but not limited to, books and records required to be maintained
by Section 31(a) of the 1940 Act and the rules and regulations from time to time
adopted thereunder. All books and records maintained by the Custodian pursuant
to this Agreement shall at all times be the property of the Fund and shall be
available during normal business hours for inspection and use by the Fund and
its agents, including, without limitation, its independent certified public
accountants. Notwithstanding the preceding sentence, the Fund shall not take any
actions or cause the Custodian to take any actions which would cause, either
directly or indirectly, the Custodian to violate any applicable laws,
regulations or orders.
Section 2.26. Opinion of Fund's Independent Certified Public Accountants.
The Custodian shall take all reasonable action as the Fund may request to
obtain from year to year favorable opinions from the Fund's independent
certified public accountants with respect to the Custodian's activities
hereunder in connection with the preparation of the Fund's Form N-2 and the
Fund's Form N-SAR or other periodic reports to the SEC and with respect to any
other requirements of the SEC.
Section 2.27. Reports by Independent Certified Public Accountants. At
the request of the Fund, the Custodian shall deliver to the Fund a written
report prepared by the Custodian's independent certified public accountants
with respect to the services provided by the Custodian under this Agreement,
including, without limitation, the Custodian's accounting system, internal
accounting control and procedures for safeguarding cash, securities and other
assets, including cash, securities and other assets deposited and/or maintained
in a Securities System or with a Subcustodian. Such report shall be of
sufficient scope and in sufficient detail as may reasonably be required by the
Fund and as may reasonably be obtained by the Custodian.
Section 2.28. Overdraft Facility. In the event that the Custodian is
directed by Proper Instructions to make any payment or transfer of funds on
behalf of the Fund for which there would be, at the close of business on the
date of such payment or transfer, insufficient funds held by the Custodian on
behalf of the Fund, the Custodian may, in its discretion, provide an
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overdraft (an "Overdraft") to the Fund on behalf of the Fund, in an amount
sufficient to allow the completion of such payment. Any Overdraft provided
hereunder: (a) shall be payable on the next Business Day, unless otherwise
agreed by the Fund and the Custodian; and (b) shall accrue interest from the
date of the Overdraft to the date of payment in full by the Fund on behalf of
the Fund at a rate agreed upon in writing, from time to time, by the Custodian
and the Fund. The Custodian and the Fund acknowledge that the purpose of such
Overdrafts is to temporarily finance the purchase or sale of securities for
prompt delivery in accordance with the terms hereof, or to meet emergency
expenses not reasonably foreseeable by the Fund. The Custodian shall promptly
notify the Fund in writing (an "Overdraft Notice") of any Overdraft by facsimile
transmission or in such other manner as the Fund and the Custodian may agree in
writing. At the request of the Custodian, the Fund, shall pledge,
assign and grant to the Custodian a security interest in certain specified
securities of the Fund, as security for Overdrafts provided to the Fund, under
the terms and conditions set forth in Appendix "B" attached hereto.
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ARTICLE III
PROPER INSTRUCTIONS, SPECIAL INSTRUCTIONS
AND RELATED MATTERS
Section 3.01. Proper Instructions and Special Instructions.
(a) Proper Instructions. As used herein, the term "Proper Instructions"
shall mean: (i) a tested telex, a written (including, without limitation,
facsimile transmission) request, direction, instruction or certification signed
or initialed by or on behalf of the Fund by one or more Authorized Persons (as
hereinafter defined); (ii) a telephonic or other oral communication by one or
more Authorized Persons; or (iii) a communication effected directly between an
electro-mechanical or electronic device or system (including, without
limitation, computers) by or on behalf of the Fund by one or more Authorized
Persons; provided, however, that communications of the types described in
clauses (ii) and (iii) above purporting to be given by an Authorized Person
shall be considered Proper Instructions only if the Custodian reasonably
believes such communications to have been given by an Authorized Person with
respect to the transaction involved. Proper Instructions in the form of oral
communications shall be confirmed by the Fund by tested telex or in writing in
the manner set forth in clause (i) above, but the lack of such confirmation
shall in no way affect any action taken by the Custodian in reliance upon such
oral instructions prior to the Custodian's receipt of such confirmation. The
Fund and the Custodian are hereby authorized to record any and all telephonic
or other oral instructions communicated to the Custodian. Proper Instructions
may relate to specific transactions or to types or classes of transactions, and
may be in the form of standing instructions.
(b) Special Instructions. As used herein, the term "Special Instructions"
shall mean Proper Instructions countersigned or confirmed in writing by the
Treasurer or any Assistant Treasurer of the Fund or any other person designated
by the Treasurer of the Fund in writing, which countersignature or confirmation
shall be (i) included on the same instrument containing the Proper Instructions
or on a separate instrument relating thereto, and (ii) delivered by hand, by
facsimile transmission, or in such other manner as the Fund and the Custodian
agree in writing.
(c) Address for Proper Instructions and Special Instructions. Proper
Instructions and Special Instructions shall be delivered to the Custodian at
the address and/or telephone, telecopy or telex number agreed upon from time to
time by the Custodian and the Fund.
Section 3.02. Authorized Persons. Concurrently with the execution of
this Agreement and from time to time thereafter, as appropriate, the Fund shall
deliver to the Custodian, duly certified as appropriate by a Treasurer or
Assistant Treasurer of the Fund, a certificate setting forth: (a) the names,
titles, signatures and scope of authority of all persons authorized to give
Proper Instructions or any other notice, request, direction, instruction,
certificate or instrument on behalf of the Fund (collectively, the "Authorized
Persons" and individually, an "Authorized Person"); and (b) the names, titles
and signatures of those persons authorized to issue Special Instructions. Such
certificate may be accepted and relied upon by the Custodian as conclusive
evidence of the facts set forth therein and shall be considered to be in full
force and effect until delivery to the Custodian of a similar certificate to
the contrary. Upon delivery of a certificate which deletes the name(s) of a
person previously authorized to give Proper Instructions or to issue Special
Instructions, such persons shall no longer be considered an Authorized Person
or authorized to issue Special Instructions.
Section 3.03. Persons Having Access to Assets of the Fund .
Notwithstanding anything to the contrary contained in this Agreement, no
Authorized Person, Trustee, officer, employee or agent of the Fund shall have
physical access to the assets of the Fund held by the Custodian nor shall the
Custodian deliver any assets of the Fund for delivery to an account of such
person; provided, however, that nothing in this Section 3.03 shall prohibit (a)
any Authorized Person from giving Proper Instructions, or any person authorized
to issue Special Instructions from issuing Special Instructions, so long as
such action does not result in delivery of or access to assets of any Fund
prohibited by this Section 3.03; or (b) the Fund's independent certified public
accountants from examining or reviewing the assets of the Fund held by the
Custodian. The Fund shall deliver to the Custodian a written certificate
identifying such Authorized Persons, Trustees, officers, employees and agents
of the Fund.
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Section 3.04. Actions of Custodian Based on Proper Instructions and
Special Instructions. So long as and to the extent that the Custodian acts in
accordance with (a) Proper Instructions or Special Instructions, as the case
may be, and (b) the terms of this Agreement, the Custodian shall not be
responsible for the title, validity or genuineness of any property, or evidence
of title thereof, received by it or delivered by it pursuant to this Agreement.
ARTICLE IV
SUBCUSTODIANS
The Custodian may, from time to time, in accordance with the relevant
provisions of this Article IV, appoint one or more Domestic Subcustodians,
Foreign Subcustodians, Interim Subcustodians and Special Subcustodians to act
on behalf of the Fund. (For purposes of this Agreement, all duly appointed
Domestic Subcustodians, Foreign Subcustodians, Interim Subcustodians, and
Special Subcustodians are hereinafter referred to collectively, as
"Subcustodians.")
Section 4.01. Domestic Subcustodians. The Custodian may, at any time and
from time to time, appoint any bank as defined in Section 2(a)(5) of the 1940
Act meeting the requirements of a custodian under Section 17(f) of the 1940 Act
and the rules and regulations thereunder, to act as a subcustodian for purposes
of holding cash, securities and other assets of the Fund and performing other
functions of the Custodian within the United States (a "Domestic
Subcustodian"); provided, that, the Custodian shall notify the Fund in writing
of the identity and qualifications of any proposed Domestic Subcustodian at
least thirty (30) days prior to appointment of such Domestic Subcustodian, and
the Fund may, in its sole discretion, by written notice to the Custodian
executed by an Authorized Person disapprove of the appointment of such Domestic
Subcustodian. If following notice by the Custodian to the Fund regarding
appointment of a Domestic Subcustodian and the expiration of thirty (30) days
after the date of such notice, the Fund shall have failed to notify the
Custodian of its disapproval thereof, the Custodian may, in its discretion,
appoint such proposed Domestic Subcustodian as its subcustodian.
Section 4.02. Foreign Subcustodians and Interim Subcustodians.
(a) Foreign Subcustodians. The Custodian may, at any time and from time
to time, appoint: (i) any bank, trust company or other entity meeting the
requirements of an "eligible foreign custodian" under Section 17(f) of the 1940
Act and the rules and regulations thereunder or by order of the Securities and
Exchange Commission exempted therefrom, or (ii) any bank as defined in Section
2(a)(5) of the 1940 Act meeting the requirements of a custodian under Section
17(f) of the 1940 Act and the rules and regulations thereunder to act on behalf
of the Fund as a subcustodian for purposes of holding cash, securities and other
assets of the Fund and performing other functions of the Custodian in countries
other than the United States of America (a "Foreign Subcustodian"); provided,
that, prior to the appointment of any Foreign Subcustodian, the Custodian shall
have obtained written confirmation of the approval of the Board of Directors or
other governing body or entity of the Fund (which approval may be withheld in
the sole discretion of such Board of Directors or other governing body or
entity) with respect to (i) the identity and qualifications of any proposed
Foreign Subcustodian, (ii) the country or countries in which, and the securities
depositories or clearing agencies, if any, through which, any proposed Foreign
Subcustodian is authorized to hold securities and other assets of the Fund, and
(iii) the form and terms of the subcustodian agreement to be entered into
between such proposed Foreign Subcustodian and the Custodian. Each such duly
approved Foreign Subcustodian and the countries where and the securities
depositories and clearing agencies through which they may hold securities and
other assets of the Fund shall be listed on Appendix "A" attached hereto, as it
may be amended, from time to time, in accordance with the provisions of Section
9.06(a) hereof. The Fund shall be responsible for informing the Custodian
sufficiently in advance of a proposed investment which is to be held in a
country in which no Foreign Subcustodian is authorized to act, in order that
there shall be sufficient time for the Custodian to effect the appropriate
arrangements with a proposed foreign subcustodian, including obtaining approval
as provided in this Section 4.02(a). The Custodian shall not amend any
subcustodian agreement entered into with a Foreign Subcustodian, or agree to
change or permit any changes thereunder, or waive any rights under such
agreement, which materially affect the Fund's rights or the Foreign
Subcustodian's obligations or duties to the Fund under such agreement, except
upon prior approval pursuant to Special Instructions.
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(b) Interim Subcustodians. Notwithstanding the foregoing, in the event
that the Fund shall invest in a security or other asset to be held in a country
in which no Foreign Subcustodian is authorized to act, the Custodian shall
promptly notify the Fund in writing by facsimile transmission or in such other
manner as the Fund and Custodian shall agree in writing of the unavailability
of an approved Foreign Subcustodian in such country; and the Custodian shall,
upon receipt of Special Instructions, appoint any Person designated by the Fund
in such Special Instructions to hold such security or other asset. (Any Person
appointed as a subcustodian pursuant to this Section 4.02(b) is hereinafter
referred to as an "Interim Subcustodian.")
Section 4.03. Special Subcustodians. Upon receipt of Special
Instructions, the Custodian shall, on behalf of the Fund, appoint one or more
banks, trust companies or other entities designated in such Special Instructions
to act as a subcustodian for purposes of: (i) effecting third-party repurchase
transactions with banks, brokers, dealers or other entities through the use of a
common custodian or subcustodian; (ii) establishing a joint trading account for
the Fund and other registered management investment companies for which Fidelity
Management & Research Company serves as investment adviser, through which the
Fund and such other investment companies shall collectively participate in
certain repurchase transactions; (iii) providing depository and clearing agency
services with respect to certain variable rate demand note securities; and (iv)
effecting any other transactions designated by the Fund in Special
Instructions. (Each such designated subcustodian is hereinafter referred to as a
"Special Subcustodian.") Each such duly appointed Special Subcustodian shall
be listed on Appendix "A" attached hereto, as it may be amended from time to
time in accordance with the provisions of Section 9.06(a) hereof. In
connection with the appointment of any Special Subcustodian, the Custodian
shall enter into a subcustodian agreement with the Special Subcustodian in form
and substance approved by the Fund, provided that such agreement shall in all
events comply with the provisions of the 1940 Act and the rules and regulations
thereunder and the terms and provisions of this Agreement. The Custodian
shall not amend any subcustodian agreement entered into with a Special
Subcustodian, or agree to change or permit any changes thereunder, or waive
any rights under such agreement, except upon prior approval pursuant to Special
Instructions.
Section 4.04. Termination of a Subcustodian. The Custodian shall (i)
cause each Domestic Subcustodian and Foreign Subcustodian to, and (ii) use its
best efforts to cause each Interim Subcustodian and Special Subcustodian to,
perform all of its obligations in accordance with the terms and conditions of
the subcustodian agreement between the Custodian and such Subcustodian. In the
event that the Custodian is unable to cause such Subcustodian to fully perform
its obligations thereunder, the Custodian shall forthwith, upon the receipt of
Special Instructions, terminate such Subcustodian with respect to the Fund and,
if necessary or desirable, appoint a replacement Subcustodian in accordance
with the provisions of Section 4.01 or Section 4.02, as the case may be. In
addition to the foregoing, the Custodian (A) may, at any time in its
discretion, upon written notification to the Fund, terminate any Domestic
Subcustodian, Foreign Subcustodian or Interim Subcustodian, and (B) shall, upon
receipt of Special Instructions, terminate any Subcustodian with respect to the
Fund, in accordance with the termination provisions under the applicable
subcustodian agreement.
Section 4.05. Certification Regarding Foreign Subcustodians. Upon
request of the Fund, the Custodian shall deliver to the Fund a certificate
stating: (i) the identity of each Foreign Subcustodian then acting on behalf
of the Custodian; (ii) the countries in which and the securities depositories
and clearing agents through which each such Foreign Subcustodian is then
holding cash, securities and other assets of any Fund; and (iii) such other
information as may be requested by the Fund to ensure compliance with Rule
17f-5 under the 1940 Act.
ARTICLE V
STANDARD OF CARE; INDEMNIFICATION
Section 5.01. Standard of Care.
(a) General Standard of Care. The Custodian shall exercise reasonable
care and diligence in carrying out all of its duties and obligations under this
Agreement, and shall be liable to the Fund for all
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loss, damage and expense suffered or incurred by the Fund resulting from the
failure of the Custodian to exercise such reasonable care and diligence.
(b) Actions Prohibited by Applicable Law, Etc. In no event shall the
Custodian incur liability hereunder if the Custodian or any Subcustodian or
Securities System, or any subcustodian, securities depository or securities
system utilized by any such Subcustodian, or any nominee of the Custodian or any
Subcustodian (individually, a "Person") is prevented, forbidden or delayed from
performing, or omits to perform, any act or thing which this Agreement provides
shall be performed or omitted to be performed, by reason of: (i) any provision
of any present or future law or regulation or order of the United States of
America, or any state thereof, or of any foreign country, or political
subdivision thereof or of any court of competent jurisdiction; or (ii) any act
of God or war or other similar circumstance beyond the control of the Custodian,
unless, in each case, such delay or nonperformance is caused by (A) the
negligence, misfeasance or misconduct of the applicable Person, or (B) a
malfunction or failure of equipment operated or utilized by the applicable
Person other than a malfunction or failure beyond such Person's control and
which could not reasonably be anticipated and/or prevented by such Person.
(c) Mitigation by Custodian. Upon the occurrence of any event which
causes or may cause any loss, damage or expense to the Fund, (i) the Custodian
shall, (ii) the Custodian shall cause any applicable Domestic Subcustodian or
Foreign Subcustodian to, and (iii) the Custodian shall use its best efforts to
cause any applicable Interim Subcustodian or Special Subcustodian to, use all
commercially reasonable efforts and take all reasonable steps under the
circumstances to mitigate the effects of such event and to avoid continuing
harm to the Fund.
(d) Advice of Counsel. The Custodian shall be entitled to receive and act
upon advice of counsel on all matters. The Custodian shall be without liability
for any action reasonably taken or omitted in good faith pursuant to the advice
of (i) counsel for the Fund, or (ii) at the expense of the Custodian, such
other counsel as the Fund and the Custodian may agree upon; provided, however,
with respect to the performance of any action or omission of any action upon
such advice, the Custodian shall be required to conform to the standard of care
set forth in Section 5.01(a).
(e) Expenses of the Fund. In addition to the liability of the Custodian
under this Article V, the Custodian shall be liable to the Fund for all
reasonable costs and expenses incurred by the Fund in connection with any claim
by the Fund against the Custodian arising from the obligations of the Custodian
hereunder including, without limitation, all reasonable attorneys' fees and
expenses incurred by the Fund in asserting any such claim, and all expenses
incurred by the Fund in connection with any investigations, lawsuits or
proceedings relating to such claim; provided, that the Fund has recovered from
the Custodian for such claim.
(f) Liability for Past Records. The Custodian shall have no liability in
respect of any loss, damage or expense suffered by the Fund, insofar as such
loss, damage or expense arises from the performance of the Custodian's duties
hereunder by reason of the Custodian's reliance upon records that were
maintained for the Fund by entities other than the Custodian prior to the
Custodian's employment hereunder.
Section 5.02. Liability of Custodian for Actions of Other Persons.
(a) Domestic Subcustodians and Foreign Subcustodians. The Custodian shall
be liable for the actions or omissions of any Domestic Subcustodian or any
Foreign Subcustodian to the same extent as if such action or omission were
performed by the Custodian itself. In the event of any loss, damage or expense
suffered or incurred by the Fund caused by or resulting from the actions or
omissions of any Domestic Subcustodian or Foreign Subcustodian for which the
Custodian would otherwise be liable, the Custodian shall promptly reimburse the
Fund in the amount of any such loss, damage or expense.
(b) Interim Subcustodians. Notwithstanding the provisions of Section 5.01
to the contrary, the Custodian shall not be liable to the Fund for any loss,
damage
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or expense suffered or incurred by the Fund resulting from the actions or
omissions of an Interim Subcustodian unless such loss, damage or expense is
caused by, or results from, the negligence, misfeasance or misconduct of the
Custodian; provided, however, in the event of any such loss, damage or expense,
the Custodian shall take all reasonable steps to enforce such rights as it may
have against such Interim Subcustodian to protect the interests of the Fund.
(c) Special Subcustodians and Additional Custodians. Notwithstanding the
provisions of Section 5.01 to the contrary and except as otherwise provided in
any subcustodian or custodian agreement to which the Custodian, the Fund and
any Special Subcustodian or Additional Custodian are parties, the Custodian
shall not be liable to the Fund for any loss, damage or expense suffered or
incurred by the Fund resulting from the actions or omissions of a Special
Subcustodian or Additional Custodian, unless such loss, damage or expense is
caused by, or results from, the negligence, misfeasance or misconduct of the
Custodian; provided, however, that in the event of any such loss, damage or
expense, the Custodian shall take all reasonable steps to enforce such rights
as it may have against any Special Subcustodian or Additional Custodian to
protect the interests of the Fund.
(d) Securities Systems. Notwithstanding the provisions of Section 5.01 to
the contrary, the Custodian shall not be liable to the Fund for any loss,
damage or expense suffered or incurred by the Fund resulting from the use by
the Custodian of a Securities System, unless such loss, damage or expense is
caused by, or results from, the negligence, misfeasance or misconduct of the
Custodian; provided, however, that in the event of any such loss, damage or
expense, the Custodian shall take all reasonable steps to enforce such rights
as it may have against the Securities System to protect the interests of the
Fund.
(e) Reimbursement of Expenses. The Fund agrees to reimburse the Custodian
for all reasonable out-of-pocket expenses incurred by the Custodian in
connection with the fulfillment of its obligations under this Section 5.02;
provided, however, that such reimbursement shall not apply to expenses
occasioned by or resulting from the negligence, misfeasance or misconduct of
the Custodian.
Section 5.03. Indemnification.
(a) Indemnification Obligations. Subject to the limitations set forth in
this Agreement, the Fund agrees to indemnify and hold harmless the Custodian
and its nominees from all loss, damage and expense (including reasonable
attorneys' fees) suffered or incurred by the Custodian or its nominee caused by
or arising from actions taken by the Custodian in the performance of its duties
and obligations under this Agreement; provided, however, that such indemnity
shall not apply to loss, damage and expense occasioned by or resulting from the
negligence, misfeasance or misconduct of the Custodian or its nominee. In
addition, the Fund agrees to indemnify any Person against any liability
incurred by reason of taxes assessed to such Person, or other loss, damage or
expenses incurred by such Person, resulting from the fact that securities and
other property of the Fund are registered in the name of such Person; provided,
however, that in no event shall such indemnification be applicable to income,
franchise or similar taxes which may be imposed or assessed against any Person.
(b) Notice of Litigation, Right to Prosecute, Etc. The Fund shall not be
liable for indemnification under this Section 5.03 unless a Person shall have
promptly notified the Fund in writing of the commencement of any litigation or
proceeding brought against such Person in respect of which indemnity may be
sought under this Section 5.03. With respect to claims in such litigation or
proceedings for which indemnity by the Fund may be sought and subject to
applicable law and the ruling of any court of competent jurisdiction, the Fund
shall be entitled to participate in any such litigation or proceeding and, after
written notice from the Fund to any Person, the Fund may assume the defense of
such litigation or proceeding with counsel of its choice at its own expense in
respect of that portion of the litigation for which the Fund may be subject to
an indemnification obligation; provided, however, a Person shall be entitled to
participate in (but not control) at its own cost and expense, the defense of any
such litigation or proceeding if the Fund has not acknowledged in writing its
obligation to indemnify the Person with respect to such litigation or
proceeding. If the Fund is not permitted to participate or control such
litigation or proceeding under applicable law or by a ruling of a court of
competent jurisdiction, such Person shall reasonably prosecute such litigation
or proceeding. A Person shall not consent to the entry of any judgment or enter
into any settlement in any such litigation or proceeding without providing the
Fund with adequate notice of any such settlement or judgment, and
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without the Fund's prior written consent. All Persons shall submit written
evidence to the Fund with respect to any cost or expense for which they are
seeking indemnification in such form and detail as the Fund may reasonably
request.
Section 5.04. Investment Limitations. If the Custodian has otherwise
complied with the terms and conditions of this Agreement in performing its
duties generally, and more particularly in connection with the purchase, sale
or exchange of securities made by or for the Fund, the Custodian shall not be
liable to the Fund and the Fund agrees to indemnify the Custodian and its
nominees, for any loss, damage or expense suffered or incurred by the Custodian
and its nominees arising out of any violation of any investment or other
limitation to which the Fund is subject.
Section 5.05. Fund's Right to Proceed. Notwithstanding anything to the
contrary contained herein, the Fund shall have, at its election upon reasonable
notice to the Custodian, the right to enforce, to the extent permitted by any
applicable agreement and applicable law, the Custodian's rights against any
Subcustodian, Securities System, or other Person for loss, damage or expense
caused the Fund by such Subcustodian, Securities System, or other Person, and
shall be entitled to enforce the rights of the Custodian with respect to any
claim against such Subcustodian, Securities System or other Person, which the
Custodian may have as a consequence of any such loss, damage or expense, if and
to the extent that the Fund has not been made whole for any such loss or
damage. If the Custodian makes the Fund whole for any such loss or damage, the
Custodian shall retain the ability to enforce its rights directly against such
Subcustodian, Securities System or other Person. Upon the Fund's election to
enforce any rights of the Custodian under this Section 5.05, the Fund shall
reasonably prosecute all actions and proceedings directly relating to the
rights of the Custodian in respect of the loss, damage or expense incurred by
the Fund; provided that, so long as the Fund has acknowledged in writing its
obligation to indemnify the Custodian under Section 5.03 hereof with respect to
such claim, the Fund shall retain the right to settle, compromise and/or
terminate any action or proceeding in respect of the loss, damage or expense
incurred by the Fund without the Custodian's consent and provided further, that
if the Fund has not made an acknowledgment of its obligation to indemnify, the
Fund shall not settle, compromise or terminate any such action or proceeding
without the written consent of the Custodian, which consent shall not be
unreasonably withheld or delayed. The Custodian agrees to cooperate with the
Fund and take all actions reasonably requested by the Fund in connection with
the Fund's enforcement of any rights of the Custodian. The Fund agrees to
reimburse the Custodian for all reasonable out-of-pocket expenses incurred by
the Custodian in connection with the fulfillment of its obligations under this
Section 5.05 provided, however, that such reimbursement shall not apply to
expenses occasioned by or resulting from the negligence, misfeasance or
misconduct of the Custodian.
ARTICLE VI
COMPENSATION
The Fund shall compensate the Custodian in an amount, and at such times,
as may be agreed upon in writing, from time to time, by the Custodian and the
Fund.
ARTICLE VII
TERMINATION
Section 7.01. Termination of Agreement. This Agreement shall continue in
full force and effect until the first to occur of: (a) termination by the
Custodian by an instrument in writing delivered or mailed to the Fund, such
termination to take effect not sooner than ninety (90) days after the date of
such delivery; (b) termination by the Fund by an instrument in writing
delivered or mailed to the Custodian, such termination to take effect not
sooner than thirty (30) days after the date of such delivery; or (c)
termination by the Fund by written notice delivered to the Custodian, based
upon the Fund's determination that there is a reasonable basis to conclude that
the Custodian is insolvent or that the financial condition of the Custodian is
deteriorating in any material respect, in which case termination shall take
effect upon the Custodian's receipt of such notice or at such later time as the
Fund shall designate. In the event of termination pursuant to this Section
7.01, the Fund shall make payment of all accrued fees and unreimbursed expenses
within a reasonable time following termination and delivery of a statement to
the Fund setting forth such fees and expenses. The Fund shall identify in any
notice of termination a successor custodian to which the cash, securities and
other assets of the Fund
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shall, upon termination of this Agreement, be delivered. In the event that no
written notice designating a successor custodian shall have been delivered to
the Custodian on or before the date when termination of this Agreement shall
become effective, the Custodian may deliver to a bank or trust company doing
business in Boston, Massachusetts, 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 and other assets held by the
Custodian and all instruments held by the Custodian relative thereto and all
other property held by it under this Agreement. Thereafter, such bank or trust
company shall be the successor of the Custodian under this Agreement. In the
event that securities and other assets remain in the possession of the Custodian
after the date of termination hereof owing to failure of the Fund to appoint a
successor custodian, the Custodian shall be entitled to compensation for its
services in accordance with the fee schedule most recently in effect, for such
period as the Custodian retains possession of such securities and other assets,
and the provisions of this Agreement relating to the duties and obligations of
the Custodian and the Fund shall remain in full force and effect. In the event
of the appointment of a successor custodian, it is agreed that the cash,
securities and other property owned by the Fund and held by the Custodian, any
Subcustodian or nominee shall be delivered to the successor custodian; and the
Custodian agrees to cooperate with the Fund in the execution of documents and
performance of other actions necessary or desirable in order to substitute the
successor custodian for the Custodian under this Agreement.
ARTICLE VIII
DEFINED TERMS
The following terms are defined in the following sections:
Term Section
---- -------
Account ..................... 2.22
ADRs ........................ 2.06
Additional Custodian ........ 2.23(a)
Authorized Person(s) ........ 3.02
Banking Institution ......... 2.12(a)
Business Day ................ Appendix "B"
Bank Accounts ............... 2.21
Distribution Account ........ 2.16
Domestic Subcustodian ....... 4.01
Foreign Subcustodian ........ 4.02(a)
Institutional Client ........ 2.03
Interim Subcustodian ........ 4.02(b)
Overdraft ................... 2.28
Overdraft Notice ............ 2.28
Person ...................... 5.01(b)
Procedural Agreement ........ 2.10
Proper Instructions ......... 3.01(a)
SEC ......................... 2.22
Securities System ........... 2.22
Shares ...................... 2.16
Special Instructions ........ 3.01(b)
Special Subcustodian ........ 4.03
Subcustodian ................ Article IV
1940 Act .................... Preamble
ARTICLE IX
MISCELLANEOUS
Section 9.01. Execution of Documents, Etc.
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(a) Actions by the Fund. Upon request, the Fund shall execute and deliver
to the Custodian such proxies, powers of attorney or other instruments as may
be reasonable and necessary or desirable in connection with the performance by
the Custodian or any Subcustodian of their respective obligations under this
Agreement or any applicable subcustodian agreement, provided that the exercise
by the Custodian or any Subcustodian of any such rights shall in all events be
in compliance with the terms of this Agreement.
(b) Actions by Custodian. Upon receipt of Proper Instructions, the
Custodian shall execute and deliver to the Fund or to such other parties as the
Fund may designate in such Proper Instructions, all such documents, instruments
or agreements as may be reasonable and necessary or desirable in order to
effectuate any of the transactions contemplated hereby.
Section 9.02. Representative Capacity; Nonrecourse Obligations. A COPY
OF THE ARTICLES OF INCORPORATION OF THE FUND IS ON FILE WITH THE SECRETARY OF
THE STATE OF THE FUND'S FORMATION, AND NOTICE IS HEREBY GIVEN THAT THIS
AGREEMENT IS NOT EXECUTED ON BEHALF OF THE DIRECTORS OF THE FUND AS INDIVIDUALS,
AND THE OBLIGATIONS OF THIS AGREEMENT ARE NOT BINDING UPON ANY OF THE DIRECTORS,
OFFICERS, SHAREHOLDERS OR PARTNERS OF THE FUND INDIVIDUALLY, BUT ARE BINDING
ONLY UPON THE ASSETS AND PROPERTY OF THE FUND. THE CUSTODIAN AGREES THAT NO
SHAREHOLDER, DIRECTOR, OFFICER OR PARTNER OF THE FUND MAY BE HELD PERSONALLY
LIABLE OR RESPONSIBLE FOR ANY OBLIGATIONS OF THE FUND ARISING OUT OF THIS
AGREEMENT.
Section 9.03. Several Obligations of the Fund. WITH RESPECT TO ANY
OBLIGATIONS OF THE FUND ARISING OUT OF THIS AGREEMENT, INCLUDING, WITHOUT
LIMITATION, THE OBLIGATIONS ARISING UNDER SECTIONS 2.28, 5.03, 5.05 and ARTICLE
VI HEREOF, THE CUSTODIAN SHALL LOOK FOR PAYMENT OR SATISFACTION OF ANY
OBLIGATION SOLELY TO THE ASSETS AND PROPERTY OF THE FUND TO WHICH SUCH
OBLIGATION RELATES AS THOUGH THE FUND HAD SEPARATELY CONTRACTED WITH THE
CUSTODIAN BY SEPARATE WRITTEN INSTRUMENT.
Section 9.04. Representations and Warranties.
(a) Representations and Warranties of the Fund. The Fund hereby
represents and warrants that each of the following shall be true, correct and
complete at all times during the term of this Agreement: (i) the Fund is duly
organized under the laws of its jurisdiction of organization and is registered
as an closed-end management investment company under the 1940 Act; and (ii) the
execution, delivery and performance by the Fund of this Agreement are (w)
within its power, (x) have been duly authorized by all necessary action, and
(y) will not (A) contribute to or result in a breach of or default under or
conflict with any existing law, order, regulation or ruling of any governmental
or regulatory agency or authority, or (B) violate any provision of the Fund's
corporate charter or other organizational document, or bylaws, or any amendment
thereof or any provision of its most recent Prospectus.
(b) Representations and Warranties of the Custodian. The Custodian hereby
represents and warrants that each of the following shall be true, correct and
complete at all times during the term of this Agreement: (i) the Custodian is
duly organized under the laws of its jurisdiction of organization and qualifies
to act as a custodian to closed-end management investment companies under the
provisions of the 1940 Act; and (ii) the execution, delivery and performance by
the Custodian of this Agreement are (w) within its power, (x) have been duly
authorized by all necessary action, and (y) will not (A) contribute to or
result in a breach of or default under or conflict with any existing law,
order, regulation or ruling of any governmental or regulatory agency or
authority, or (B) violate any provision of the Custodian's corporate charter,
or other organizational document, or bylaws, or any amendment thereof.
Section 9.05. Entire Agreement. This Agreement constitutes the entire
understanding and agreement of the parties hereto with respect to the subject
matter hereof and accordingly, supersedes as of the effective date of this
Agreement any custodian agreement heretofore in effect between the Fund and the
Custodian.
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Section 9.06. Waivers and Amendments. No provision of this Agreement may
be waived, amended or terminated except by a statement in writing signed by the
party against which enforcement of such waiver, amendment or termination is
sought; provided, however: (a) Appendix "A" listing Foreign Subcustodians,
Special Subcustodians and Additional Custodians approved by the Fund may be
amended from time to time to add or delete one or more Foreign Subcustodians,
Special Subcustodians or Additional Custodians by the Fund's execution and
delivery to the Custodian of an amended Appendix "A", in which case such
amendment shall take effect immediately upon execution by the Custodian; and (b)
Appendix "B" setting forth the procedures relating to the Custodian's security
interest may be amended only by an instrument in writing executed by the Fund
and the Custodian.
Section 9.07. Interpretation. In connection with the operation of this
Agreement, the Custodian and the Fund may agree in writing from time to time on
such provisions interpretative 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. No interpretative or additional provisions made as provided in
the preceding sentence shall be deemed to be an amendment of this Agreement.
Section 9.08. Captions. Headings contained in this Agreement, which are
included as convenient references only, shall have no bearing upon the
interpretation of the terms of the Agreement or the obligations of the parties
hereto.
Section 9.09. Governing Law. Insofar as any question or dispute may
arise in connection with the custodianship of foreign securities pursuant to an
agreement with a Foreign Subcustodian that is governed by the laws of the State
of New York, the provisions of this Agreement shall be construed in accordance
with and governed by the laws of the State of New York, provided that in all
other instances this Agreement shall be construed in accordance with and
governed by the laws of the Commonwealth of Massachusetts, in each case without
giving effect to principles of conflicts of law.
Section 9.10. Notices. Except in the case of Proper Instructions or
Special Instructions, notices and other writings contemplated by this Agreement
shall be delivered by hand or by facsimile transmission (provided that in the
case of delivery by facsimile transmission, notice shall also be mailed postage
prepaid to the parties at the following addresses:
(a) If to the Fund:
c/o Fidelity Management & Research Company
00 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Treasurer of the Fidelity Funds
Telephone: (000) 000-0000
Telefax: (000) 000-0000
(b) If to the Custodian:
Global Securities Services
Financial Institutions Markets
0 Xxxxx XxxxxXxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, XX 00000
Attn: Xxxx Xxxx
Telephone: (000) 000-0000
Telefax: (000) 000-0000
or to such other address as either party may have designated in writing to the
other party hereto.
Section 9.11. Assignment. This Agreement shall be binding on and shall
inure to the benefit of the Fund and the Custodian and their respective
successors and assigns, provided that, subject to the
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provisions of Section 7.01 hereof, neither party hereto may assign this
Agreement or any of its rights or obligations hereunder without the prior
written consent of the other party.
Section 9.12. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original. This Agreement
shall become effective when one or more counterparts have been signed and
delivered by each of the parties.
Section 9.13. Confidentiality; Survival of Obligations. The parties
hereto agree that each shall treat confidentially the terms and conditions of
this Agreement and all information provided by each party to the other regarding
its business and operations. All confidential information provided by a party
hereto shall be used by any other party hereto solely for the purpose of
rendering services pursuant to this Agreement and, except as may be required in
carrying out this Agreement, shall not be disclosed to any third party without
the prior consent of such providing party. The foregoing shall not be
applicable to any information that is publicly available when provided or
thereafter becomes publicly available other than through a breach of this
Agreement, or that is required to be disclosed by any bank examiner of the
Custodian or any Subcustodian, any auditor of the parties hereto, by judicial or
administrative process or otherwise by applicable law or regulation. The
provisions of this Section 9.12 and Sections 9.01, 9.02, 9.03, 9.07, Section
2.28, Section 3.04, Section 7.01, Article V and Article VI hereof and any other
rights or obligations incurred or accrued by any party hereto prior to
termination of this Agreement shall survive any termination of this Agreement.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed in its name and behalf on the day and year first above written.
FIDELITY ADVISOR KOREA FUND, INC. THE CHASE MANHATTAN BANK, N.A.
By: By:
------------------------------ -------------------------------
Name: Name:
---------------------------- -----------------------------
Title: Title:
--------------------------- ----------------------------
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APPENDIX "A"
TO
CUSTODIAN AGREEMENT
BETWEEN
Fidelity Advisor Korea Fund, Inc. and The Chase Manhattan Bank, N.A.
Dated as of May 31, 1995
The following is a list of Special Subcustodians, Foreign
Subcustodians and Additional Custodians under the Custodian Agreement
dated as of May 31, 1995:
A. Special Subcustodians:
SUBCUSTODIAN PURPOSE
The Bank of New York FICASH
B. Foreign Subcustodians:
COUNTRY FOREIGN SUBCUSTODIAN DEPOSITORY
AS PROVIDED FOR IN EXHIBIT I.
C. Additional Custodians:
None.
FIDELITY ADVISOR KOREA FUND, INC. THE CHASE MANHATTAN BANK, N.A.
By:
------------------------------- ----------------------------------
Xxxxxxx X. Xxxxxxxxx, Treasurer Name:
--------------------------------
Title:
-------------------------------
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APPENDIX "B" TO THE
CUSTODIAN AGREEMENT BETWEEN
FIDELITY ADVISOR KOREA FUND, INC.
AND THE CHASE MANHATTAN BANK, N.A.
DATED AS OF MAY 31, 1995
PROCEDURES RELATING TO CUSTODIAN'S SECURITY INTEREST
As security for any Overdrafts (as defined in the Custodian Agreement) of
the Fund, the Fund shall pledge, assign and grant to the Custodian a security
interest in Collateral (as hereinafter defined), under the terms, circumstances
and conditions set forth in this Appendix "B".
Section 1. Defined Terms. As used in this Appendix "B" the following
terms shall have the following respective meanings:
(a) "Business Day" shall mean any day that is not a Saturday, a Sunday or
a day on which the Custodian is closed for business.
(b) "Collateral" shall mean the securities having a fair market value (as
determined in accordance with the procedures set forth in the prospectus for
the Fund) equal to the aggregate of all Overdraft Obligations of the Fund: (i)
identified in any Pledge Certificate executed on behalf of the Fund; or (ii)
designated by the Custodian for the Fund pursuant to Section 3 of this Appendix
B. Such securities shall consist of marketable securities held by the
Custodian on behalf of the Fund or, if no such marketable securities are held
by the Custodian on behalf of the Fund, such other securities designated by the
Fund in the applicable Pledge Certificate or by the Custodian pursuant to
Section 3 of this Appendix B.
(c) "Overdraft Obligations" shall mean the amount of any outstanding
Overdraft(s) provided by the Custodian to the Fund together with all accrued
interest thereon.
(d) "Pledge Certificate" shall mean a Pledge Certificate in the form
attached to this Appendix "B" as Schedule 1 executed by a duly authorized
officer of the Fund and delivered by the Fund to the Custodian by facsimile
transmission or in such other manner as the Fund and the Custodian may agree in
writing.
(e) "Release Certificate" shall mean a Release Certificate in the form
attached to this Appendix "C" as Schedule 2 executed by a duly authorized
officer of the Custodian and delivered by the Custodian to the Fund by
facsimile transmission or in such other manner as the Fund and the Custodian
may agree in writing.
(f) "Written Notice" shall mean a written notice executed by a duly
authorized officer of the party delivering the notice and delivered by
facsimile transmission or in such other manner as the Fund and the Custodian
shall agree in writing.
Section 2. Pledge of Collateral. To the extent that any Overdraft
Obligations of the Fund are not satisfied by the close of business on the first
Business Day following the Business Day on which the Fund receives Written
Notice requesting security for such Overdraft Obligation and stating the amount
of such Overdraft Obligation, the Fund shall pledge, assign and grant to the
Custodian a first priority security interest, by delivering to the Custodian, a
Pledge Certificate executed by the Fund describing the applicable Collateral.
Such Written Notice may, in the discretion of the Custodian, be included within
or accompany the Overdraft Notice relating to the applicable Overdraft
Obligations.
Section 3. Failure to Pledge Collateral. In the event that the Fund
shall fail: (a) to pay the Overdraft Obligation described in such Written
Notice; (b) to deliver to the Custodian a Pledge Certificate pursuant to
Section 2; or (c) to identify substitute securities pursuant to Section 6 upon
the sale or maturity of any securities identified as Collateral, the Custodian
may, by Written Notice to the Fund specify Collateral which shall secure
21
26
the applicable Overdraft Obligation. The Fund hereby pledges, assigns and
grants to the Custodian a first priority security interest in any and all
Collateral specified in such Written Notice; provided that such pledge,
assignment and grant of security shall be deemed to be effective only upon
receipt by the Fund of such Written Notice.
Section 4. Delivery of Additional Collateral. If at any time the
Custodian shall notify the Fund by Written Notice that the fair market value of
the Collateral securing any Overdraft Obligation is less than the amount of
such Overdraft Obligation, the Fund shall deliver to the Custodian, within one
(1) Business Day following the Fund's receipt of such Written Notice, an
additional Pledge Certificate describing additional Collateral. If the Fund
shall fail to deliver such additional Pledge Certificate, the Custodian may
specify Collateral which shall secure the unsecured amount of the applicable
Overdraft Obligation in accordance with Section 3 of this Appendix B.
Section 5. Release of Collateral. Upon payment by the Fund of any
Overdraft Obligation secured by the pledge of Collateral, the Custodian shall
promptly deliver to the Fund a Release Certificate pursuant to which the
Custodian shall release Collateral from the lien under the applicable Pledge
Certificate or Written Notice pursuant to Section 3 having a fair market value
equal to the amount paid by the Fund on account of such Overdraft Obligation.
In addition, if at any time the Fund shall notify the Custodian by Written
Notice that the Fund desires that specified Collateral be released and: (a)
that the fair market value of the Collateral securing any Overdraft Obligation
shall exceed the amount of such Overdraft Obligation; or (b) that the Fund has
delivered a Pledge Certificate substituting Collateral for such Overdraft
Obligation, the Custodian shall deliver to the Fund, within one (1) Business
Day following the Custodian's receipt of such Written Notice, a Release
Certificate relating to the Collateral specified in such Written Notice.
Section 6. Substitution of Collateral. The Fund may substitute
securities for any securities identified as Collateral by delivery to the
Custodian of a Pledge Certificate executed by the Fund, indicating the
securities pledged as Collateral.
Section 7. Security for Fund Overdraft Obligations. The pledge of
Collateral by the Fund shall secure only the Overdraft Obligations of the Fund.
In no event shall the pledge of Collateral by one Fund be deemed or considered
to be security for the Overdraft Obligations of any other Fund.
Section 8. Custodian's Remedies. Upon (a) the Fund's failure to pay any
Overdraft Obligation of the Fund within thirty (30) days after receipt by the
Fund of a Written Notice demanding security therefore, and (b) one (1) Business
Day's prior Written Notice to the Fund, the Custodian may elect to enforce its
security interest in the Collateral securing such Overdraft Obligation, by
taking title to (at the then prevailing fair market value), or selling in a
commercially reasonable manner, so much of the Collateral as shall be required
to pay such Overdraft Obligation in full. Notwithstanding the provisions of any
applicable law, including, without limitation, the Uniform Commercial Code, the
remedy set forth in the preceding sentence shall be the only right or remedy to
which the Custodian is entitled with respect to the pledge and security interest
granted pursuant to any Pledge Certificate or Section 3, without limiting the
foregoing, the Custodian hereby waives and relinquishes all contractual and
common law rights of set off to which it may now or hereafter be or become
entitled with respect to any obligations of the Fund to the Custodian arising
under this Appendix B to the Agreement.
IN WITNESS WHEREOF, each of the parties has caused this Appendix to be
executed in its name and behalf on the day and year first above written.
FIDELITY ADVISOR KOREA FUND, INC. THE CHASE MANHATTAN BANK, N.A.
By: By:
--------------------------- --------------------------
Name: Name:
------------------------- ------------------------
Title: Title:
------------------------ -----------------------
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SCHEDULE 1
TO
APPENDIX "B"
PLEDGE CERTIFICATE
This Pledge Certificate is delivered pursuant to the Custodian Agreement
dated as of March 19, 1994 (the "Agreement"), between Fidelity Advisor Korea
Fund, Inc. (the "Fund") and The Chase Manhattan Bank, N.A. (the "Custodian").
Capitalized terms used herein without definition shall have the respective
meanings ascribed to them in the Agreement. Pursuant to [Section 2 or Section
4] of Appendix "B" attached to the Agreement, the Fund hereby pledges, assigns
and grants to the Custodian a first priority security interest in the
securities listed on Exhibit "A" attached to this Pledge Certificate
(collectively, the "Pledged Securities"). Upon delivery of this Pledge
Certificate, the Pledged Securities shall constitute Collateral, and shall
secure all Overdraft Obligations of the Fund described in that certain Written
Notice dated__________, 19__, delivered by the Custodian to the Fund. The
pledge, assignment and grant of security in the Pledged Securities hereunder
shall be subject in all respect to the terms and conditions of the Agreement,
including, without limitation, Sections 7 and 8 of Appendix "B" attached
thereto.
IN WITNESS WHEREOF, the Fund has caused this Pledge Certificate to be
executed in its name, on behalf of the Fund this_________day of 19__.
Fidelity Advisor Korea Fund., Inc.
By: _________________________
Name: _______________________
Title:_______________________
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28
EXHIBIT "A"
TO
PLEDGE CERTIFICATE
Type of Certificate/CUSIP Number of
Issuer Security Numbers Shares
------ -------- ----------------- ---------
24
29
SCHEDULE 2
TO
APPENDIX "B"
RELEASE CERTIFICATE
This Release Certificate is delivered pursuant to the Custodian Agreement
dated as of March 19, 1994 (the "Agreement"), between Fidelity Advisor Korea
Fund, Inc. (the "Fund") and The Chase Manhattan Bank, N.A. (the "Custodian").
Capitalized terms used herein without definition shall have the respective
meanings ascribed to them in the Agreement. Pursuant to Section 5 of Appendix
"B" attached to the Agreement, the Custodian hereby releases the securities
listed on Exhibit "A" attached to this Release Certificate from the lien under
the [Pledge Certificate dated , 19 or the Written Notice delivered
pursuant to Section 3 of Appendix "B" dated , 19 ].
IN WITNESS WHEREOF, the Custodian has caused this Release Certificate to
be executed in its name and on its behalf this ________day of 19__.
The Chase Manhattan Bank, N.A.
By: _____________________
Name: _____________________
Title: _____________________
25
30
EXHIBIT "A"
TO
RELEASE CERTIFICATE
Type of Certificate/CUSIP Number of
Issuer Security Numbers Shares
------ -------- ----------------- ---------
26
