1
Exhibit 8.2
November 8, 1993
Xx. Xxxx Xxxxxx
Vice President
PNC Bank, National Association
000 Xxxxxxx Xxxxx
Xxxxxx, XX 00000
RE: GLOBAL CUSTODY AGREEMENT, DATED OCTOBER 28, 1992 ("GLOBAL CUSTODY
AGREEMENT") BETWEEN BARCLAYS BANK PLC ("BARCLAYS") AND PNC BANK,
NATIONAL ASSOCIATION ("PNC BANK")
Dear Xxxx:
PNC Bank hereby appoints Barclays as its agent to provide recordkeeping
services for the Assets held on behalf of PNC Bank pursuant to the above
mentioned Global Custody Agreement. Barclays hereby accept the appointment of
agent, subject to the terms and conditions hereof. Capitalized terms used
herein and not otherwise defined herein shall have the meanings assigned to
these terms in the Agreement.
Barclays shall provide recordkeeping services for each Account in form and
substance to be mutually agreed upon by Barclays and PNC Bank. Such
recordkeeping services shall include some or all of the recordkeeping services
which are set forth on Exhibit A, attached hereto and made a part hereof.
Barclays shall provide to PNC Bank a monthly statement with respect to any
Assets in the Accounts held by a Subcustodian, including an identification of
the entity having possession of such Assets, and Barclays will send to PNC Bank
an advice or notification of any transfers of Assets to or from any Account,
indicating as to the Assets acquired for PNC Bank the identity of the entity
having physical possession of such Assets. Barclays shall use it best effects
to supply the information required herein at such times and in such formats as
PNC Bank may reasonably request. Any request by PNC Bank for additional
recordkeeping services shall be provided to Barclays in writing.
Barclays shall be responsible for the performance only of such duties as are
specifically set forth herein. Barclays will use reasonable care in the
performance of its functions and duties under this Letter Agreement. Barclays
shall be liable to PNC Bank for any direct and foreseeable loss, liability,
expense, claim or demand which shall occur as the result of Barclays'
negligence in the performance of its functions or duties in connection
herewith. In the event of any direct and foreseeable loss to PNC Bank by
reason of Barclays' negligence, Barclays shall indemnify and hold PNC Bank
harmless from any such liability, expense, claim or demand.
2
PNC Bank agrees to pay Barclays from time to time such compensation for
services pursuant to this Letter Agreement as may be mutually agreed upon in
writing.
Sincerely,
Xxxx Xxxxxxxx
Vice President and Manager
Global Custody Group
Accepted and Agreed Upon:
----------------------------- ---------------------------------
For Barclays Bank PLC For PNC Bank, National Association
2
3
GLOBAL CUSTODY AGREEMENT dated as of October 28, 1992 between
Barclays Bank PLC, a company organized and existing under the laws of England
and Wales, (hereinafter called "Barclays") and Provident National Bank
(hereinafter called the "Custodian"), and the investment companies which are
signatories hereto.
WHEREAS, the Custodian acts as a custodian of the property of
certain of its customers (the "Customers"), including without limitation
certain investment companies registered under the Investment Company Act of
1940, as amended (the "Act");
WHEREAS, the agreements between each Customer and the
Custodian (the "Custodian Agreements") provide that the Custodian may from time
to time employ as its agent one or more subcustodians, all in compliance with
Section 17(f) of the Act and Rule 17 f-5 thereunder; and
WHEREAS, the Custodian and each Customer a party hereto wish
to employ Barclays as such intermediary custodian and expert third party for
the Customers and appoint Barclays as the agent of the Custodian and its
Customers and Barclays is willing to act as such subcustodian, expert third
party and agent;
NOW, THEREFORE, in consideration of the mutual promises herein
made, the Custodian and Barclays agree as follows:
1. CUSTODY AND CASH ACCOUNTS. (a) Upon satisfaction of
the condition specified in paragraph (b) below, Barclays agrees to establish
and maintain (i) separate custody accounts for the benefit of the Custodian,
acting as custodian for each Customer (each a "Custody Account"), for any and
all stocks, shares, bonds, debentures, notes, mortgages or other obligations
for the payment of money and any certificates, receipts, warrants or other
instruments representing rights to receive, purchase or subscribe for the same
or evidencing or representing any other rights or interests therein and other
similar property (hereinafter called "Securities") and all other assets (except
cash) from time to time received by Barclays or its Subcustodians (as defined
in Section 3 hereof) on behalf of a Customer of the Custodian, and (ii)
separate deposit accounts for the benefit of the Custodian, acting as
custodians for each Customer (each a "Cash Account"; the Custody Account(s) and
the Cash Account(s), collectively referred to herein as the "Accounts") for any
and all cash in any currency received by Barclays or its Subcustodians on
behalf of a Customer of the Custodian, which cash shall not be subject to
withdrawal by draft or check except upon Instructions (as defined in Section 8
hereof) from the Custodian or as provided in Sections 7 and 16 hereof.
(b) The obligation of Barclays to establish and maintain any
account is subject to the condition precedent that it shall have
received an agreement setting forth the fees payable to Barclays in
respect of its services hereunder.
2. MAINTENANCE OF SECURITIES AND ASSETS ABROAD. (a)
Securities and other assets in each Custody Account shall be held in such
country or other jurisdiction as shall be the one in which the principal
trading market for such Securities is located or the country or jurisdiction in
which such Securities may be presented for payment or are acquired for a
Custody Account. Cash credited to any Cash Account shall be denominated in the
legal currency for the payment of public or private debts for the country or
jurisdiction where such Cash Account is located.
4
2
(b) Barclays is authorized to enter into separate
transfer or foreign exchange arrangements with Custodian, from time to
time, in order to facilitate the transfer of cash to or from any Cash
Account.
3. FOREIGN SUBCUSTODIANS AND DEPOSITORIES. Barclays may
act under this Agreement through the subcustodians listed in Schedule A hereto,
with each of whom Barclays has entered into subcustodial agreements
("Subcustodians"). The Custodian authorizes Barclays to hold cash and
Securities in accounts which Barclays has established with its branches and the
Subcustodians. Barclays and the Subcustodians are authorized to hold
Securities with securities depository facilities with whom they participate.
Barclays reserves the right to add new, or to replace or remove, Subcustodians.
The Custodian will be given reasonable prior notice by Barclays of any
amendment to Schedule A.
4. USE OF SUBCUSTODIAN. With respect to Securities,
other assets and Cash of any Customer which are maintained by Barclays in the
custody of any Subcustodian of Barclays pursuant to Section 3 hereof (such
Securities, other assets and cash hereinafter referred to as "Assets"):
(a) Barclays will identify on its books as belonging to
the Custodian, as custodian for such Customer, any Assets held by such
Subcustodian.
(b) Each Subcustodian will hold Assets together with
assets belonging to other customers of Barclays in accounts
identified on such Subcustodian's books as special custody accounts
for the exclusive benefit of customers of Barclays; in the event that
a Subcustodian permits any of the Securities placed in its care to be
held in a foreign securities depository, such Subcustodian will be
required by its agreement with Barclays to identify on its books such
Assets as being held for the account of Barclays as agent for the
Custodian. Each Subcustodian will hold Securities in a separate
custody account for each Customer and cash in a general account
established with Barclays.
(c) Any Assets in the Custody Account or a Cash Account
held by such Subcustodian will be subject only to the instructions of
Barclays, and any Securities held in a securities depository for the
account of a Subcustodian will be subject only to the instructions of
such Subcustodian.
(d) Each Foreign Sub-Custody Agreement shall provide,
through Barclays, that the Assets will not be subject to any right,
charges, security interest, lien or claim of any kind in favor of such
Subcustodian or its creditors except a claim for payment for their
safe custody or administration and that beneficial ownership of the
Assets will be freely transferable without payment of money or value
other than for safe custody or administration.
(e) Barclays shall allow independent public accountants
of each Customer such reasonable access to the records of Barclays
relating to the Assets of such Customer held in the Custody Accounts
or Cash Accounts as is required by such accountants in connection with
their examination of the books and records pertaining to the affairs
of such Customer. Barclays shall, subject to restrictions under
applicable law, also obtain from any Subcustodian with which Barclays
maintains the custody of any Assets in the Custody Accounts or Cash
Accounts an undertaking to permit independent public
5
3
accountants of such Customer such reasonable access to the records of
such Subcustodian as may be required in connection with their
examination of the books and records pertaining to the affairs of such
Customer.
(f) Barclays will supply to the Custodian from time to
time as mutually agreed upon a statement with respect to any Assets in
the Custody Accounts and Cash Accounts held by a Subcustodian,
including an identification of the entity having possession of such
Assets, and Barclays will send to the Custodian an advice or
notification of any transfers of Assets to or from any Custody Account
or Cash Account, indicating as to the Assets acquired for the
Custodian the identity of the entity having physical possession of
such Assets. Unless the Custodian sends Barclays an exception or
objection to any statement within sixty days of receipt (such
objection or exception to be subsequently confirmed in writing), the
Custodian shall be deemed to have approved such statement. In such
event, or where the Custodian has otherwise approved any such
statement, Barclays shall, to the extent permitted by law, be
released, relieved and discharged with respect to all matters set
forth in such statement or reasonably implied therefrom as though it
had been settled by decree of a court of competent jurisdiction in an
action where the Custodian and all persons having or claiming an
interest in the Custodian or the Accounts were parties.
5. CASH ACCOUNT TRANSACTIONS. (a) Subject to Sections
7 and 8, Barclays shall make, or cause its Subcustodians to make, payments of
cash credited to a Cash Account only:
(i) in connection with the purchase of Assets for a
Customer, which purchase (A) shall, unless Instructions are received
to the contrary, be made in accordance with the customary or
established securities trading and processing practices and procedures
in the jurisdiction or market in which such purchase is to take place,
including, without limitation, payments of cash in connection with
such purchase to the seller, the dealer or their agents against a
receipt indicating, or the expectation of, future delivery of such
Security, and (B) shall be made at prices set forth in Instructions
from Authorized Persons (as defined in Section 10 hereof);
(ii) when required in connection with the
conversion, exchange or surrender of Assets held in a Custody Account;
(iii) for any other proper corporate purpose of a
Customer; or
(iv) upon the termination of this Agreement as
hereinafter set forth.
All payment of cash for a purpose permitted by subsection (i),
(ii) or (iii) of this Section 5 will be made, except as provided in Sections 7
and 8 hereof, only upon receipt by Barclays of Instructions from Authorized
Persons which shall specify the purpose for which the payment is to be made and
all other information required by Barclays. Any payment pursuant to subsection
(iv) above will be made in accordance with Section 16 hereof.
(b) In the event that any payment made under this Section
5 exceeds the funds available in the applicable Cash Account, Barclays
may, in its discretion, advance the Custodian an amount equal to such
excess and such advance shall be deemed a loan
6
4
from Barclays to the Custodian, payable on demand and bearing interest
at the rate of interest customarily charged by Barclays on similar
loans.
6. CUSTODY ACCOUNT TRANSACTIONS. Subject to Sections 7
and 8, Assets of any Customer in a Custody Account will be transferred,
exchanged or delivered by Barclays or its Subcustodians only:
(a) upon sale of such Assets for the account of such
Customer, which sale (i) shall, unless Instructions are received to
the contrary, be made in accordance with the customary or established
securities trading and processing practices and procedures in the
jurisdiction or market in which such sale is to take place, including,
without limitation, delivery of a Security in connection with such
sale to the buyer, the dealer or their agents against a receipt
indicating, or the expectation of, future payment for such Security
and (ii) shall be at prices set forth in Instructions from Authorized
Persons;
(b) to a depository agent in connection with tender or
other similar offers for Securities of such Customer;
(c) to the issuer of Securities or its agent, when such
Securities are called, redeemed or retired or otherwise become
payable; provided that, in any such case, the cash or other
consideration is to be delivered to Barclays or its Subcustodian;
(d) to the issuer of Securities, or its agent, for
transfer into the name of any nominee of Barclays or any of its
Subcustodians; or for exchange for a different number of bonds,
certificates or other evidences of securities representing the same
aggregate face amount or number of shares or units; provided that, in
any such case, the new Securities are to be delivered to Barclays or
its Subcustodian;
(e) for exchange or conversion pursuant to any plan of
merger, consolidation, recapitalization, reorganization or
readjustment of Securities or pursuant to provisions for conversion of
such Securities, or pursuant to any deposit agreement; provided that
in any such case, the new Securities or cash, if any, are to be
delivered to Barclays or its Subcustodians;
(f) in the case of warrants, rights or similar
securities, the surrender thereof in connection with exercise of such
warrants, rights of similar securities, or the surrender of interim
receipts or temporary Securities for definitive Securities, provided
that, in any such case, the new Securities and cash, if any, are to be
delivered to Barclays or its Subcustodian;
(g) for any other proper corporate purposes of such
Customer; and
(h) upon the termination of this Agreement as hereinafter
set forth;
All transfers, exchanges or deliveries of Assets in a Custody
Account for a purpose permitted by either subsection (a), (b), (c), (d), (e),
(f) or (g) of this Section 6 will be made, except as provided in Section 7
hereof, only upon receipt by Barclays of Instructions from Authorized Persons
which shall specify the purpose of the transfer, exchange or delivery
7
5
to be made and all other information required by Barclays. Any transfer or
delivery pursuant to subsection (h) of this Section 6 will be made in
accordance with Section 16 hereof.
7. ACCOUNTING PROCEDURES. (a) Barclays may, in
its sole discretion, credit or debit any of the Cash Accounts on the
contractual settlement date in amounts equal to the sale proceeds or purchase
price relating to any sale, exchange or purchase of Securities. Otherwise,
such transactions will be credited or debited to the Cash Account on the date
cash is actually received by Barclays and reconciled to the Cash Account.
(b) Barclays will provisionally credit, or will cause
provisional credits to be made to, each relevant Cash Account with
Subject Income (as defined in the second following sentence) on or
before specific crediting dates as established by Barclays from time
to time for such Subject Income ("Crediting Dates"). Schedule B
attached hereto sets forth the Crediting Dates as of the date hereof.
For purposes hereof, "Subject Income" with respect to a Customer shall
mean interest on, or dividends with respect to, Securities actually
known by Barclays to be part of such Customer's portfolio credited to
the relevant Customer Custody Account and with respect to which the
issuer thereof has declared or scheduled an interest or dividend
payment date. In no event shall Subject Income include any income not
referred to above, including market claims and non-cash distributions
or entitlements, such as stock dividends.
(c) Subject to the immediately following sentence,
Barclays may reverse credits or debits made to any Account in its sole
discretion if the related transaction fails to settle within a
reasonable period, determined by Barclays in its discretion, after the
contractual settlement date for the related transaction. If Barclays
credits any Cash Account on a payable date, or at any time prior to
actual collection and reconciliation to such Cash Account, with
interest, dividends, redemptions or any other amount, including,
without limitation, any provisional credit under Section 7(b) hereof,
the Custodian will promptly return any such amount upon oral or
written notification: (i) that such amount has not been received in
the ordinary course of business or (ii) that such amount was
incorrectly credited. If the Custodian does not promptly return any
amount upon such notification, Barclays shall be entitled, upon oral
or written notification to the Custodian, to reverse such credit by
debiting the relevant Cash Account for the amount previously credited.
Barclays or its Subcustodian shall have no duty or obligation to
institute legal proceedings, file a claim or a proof of claim in any
insolvency proceeding or take any other action with respect to the
collection of such amount, but may act for the Custodian upon
instructions after consultation with the Custodian.
(d) If any Securities delivered pursuant to this Section
7 are returned by the recipient thereof, Barclays may reverse the
credits and debits of the particular transaction of any time.
8. ACTIONS OF BARCLAYS. Until Barclays receives
Instructions from Authorized Persons to the contrary, Barclays will, or will
instruct its Subcustodian to:
(a) promptly collect all income and other payments known
by Barclays or its Subcustodian to be payable with respect to
Securities held hereunder and credit such income, as collected, to the
applicable Cash Account. Barclays or its Subcustodian shall
8
6
do all things necessary and proper in connection with such prompt
collections and, without limiting the foregoing, Barclays or its
Subcustodian will:
(i) present for payment all coupons and other
income items known by Barclays or its Subcustodian as
requiring presentation;
(ii) present for payment all Securities, known to
Barclays or its Subcustodian which have matured or have been
called, redeemed, retired or otherwise become payable; and
(iii) endorse and deposit for collection, in the
name of the Custodian, checks, drafts or other negotiable
instruments;
(b) in respect of Securities in a Custody Account,
execute in the name of the Custodian such ownership and other
certificates as may be required to obtain payments in respect thereof;
(c) exchange interim receipts or temporary Securities in
a Custody Account for definitive Securities;
(d) where any Securities held in any securities
depository are called for a partial redemption by the issuer of such
Securities, allot in Barclays' or such Subcustodian's sole discretion
the called portion to the respective holders in any manner deemed to
be fair and equitable in Barclays' or such Subcustodian's judgment;
and
(e) subject to the prior receipt of all documentation
required by applicable law, pay or cause to be paid any and all taxes
and levies in the nature of taxes imposed on the Assets in the Custody
or Cash Accounts by any governmental authority and shall use
reasonable efforts where appropriate to promptly enable the Custodian
or a Customer to reclaim any foreign withholding tax relating to any
such Assets.
9. SETTLEMENT PROCEDURES; INSTRUCTIONS. (a) Promptly
after the acceptance of an offer to purchase Securities by a Customer for which
such Customer intends Barclays, directly or through any foreign custodian or
depository, to act as custodian, the Custodian shall deliver to Barclays
Instructions specifying, inter alia and as necessary, with respect to each such
purchase: (a) the name of the issuer and the title of the Securities, including
CUSIP number or other similar securities identification number, if any, (b) the
number of shares or the principal amount purchased and accrued interest, if
any, (c) to the extent known, the date payment is due and the date delivery is
to be made, (d) the purchase price per unit, (e) the total amount payable upon
such purchase, (f) the name of the person from whom or the broker through whom
the purchase was made, and (g) the foreign subcustodian or depository where
such Securities are to be delivered and held, and whether the total amount
payable will be paid from the Cash Account maintained in the country or
jurisdiction where such subcustodian or depository is located. Subject to
Section 5, Barclays directly or through the applicable foreign subcustodian or
depository shall receive Securities purchased by a Customer from the person
through or from whom the same were purchased, and shall pay, out of the monies
credited to the applicable Cash Account, the total amount payable upon such
purchase, provided that the same conforms to the total amount payable shown on
the Instructions with respect to such purchase. On the scheduled date for
payment for any Security to be purchased for deposit in
9
7
a Custody Account, the Custodian shall have caused there to be deposited in the
Cash Account located in the country or jurisdiction where such purchase is to
take place, amounts sufficient, and in such denominations, to enable Barclays
or the foreign subcustodian to pay for such Security.
(b) Promptly after the acceptance of an offer to sell any
Securities by a Customer, the Custodian shall deliver to Barclays
Instructions specifying, inter alia and as necessary, with respect to
such sale: (a) the name of the issuer and the title of the Security,
including CUSIP number or other similar securities identification
number, if any, (b) the number of shares or principal amount sold, and
accrued interest, if any, (c) to the extent known, the date payment is
to be received and the date delivery of the Security is to be made,
(d) the sale price per unit, (e) the total amount payable upon such
sale, (f) the name of the broker through whom or the person to whom
the sale was made and to whom the Security is to be delivered, and (g)
the foreign subcustodian or depositary from which such Securities are
to be delivered. Subject to Section 6, Barclays shall directly or
through the applicable foreign subcustodian or depository deliver the
Securities sold to the broker or other person named in such
Instructions upon receipt by Barclays or a foreign subcustodian of the
total amount payable to such Customer upon such sale provided that the
same conforms to the total amount payable to the Customer as set forth
in the Instructions with respect to such sale. Unless Barclays shall
be in receipt of Instructions to the contrary, amounts received from
the sale of any Security shall be deposited in the Cash Account
located in the country or jurisdiction where such sale shall have
occurred, in the denomination in which payment was made, and, subject
to the provisions of Section 5, shall be held in such Cash Account
until Instructions are received from the Custodian.
(c) As used in this Agreement, the term "Instructions"
means instructions of the Custodian to Barclays containing all
information required by Barclays received via telephone, telex, TWX,
facsimile transmission, bank wire or other teleprocess or electronic
instruction systems acceptable to Barclays which Barclays believes in
good faith to have been given by Authorized Persons or which are
transmitted with proper testing or authentication pursuant to terms
and conditions which Barclays may specify.
(d) Any Instructions delivered to Barclays by telephone
or facsimile transmission shall promptly thereafter be confirmed in
writing by an Authorized Person (which confirmation shall bear the
original or facsimile signature of such Authorized Person). However,
Barclays may rely upon instructions by telephone or facsimile
transmission in the event of failure of an Authorized Person to send
such confirmation in writing. Barclays may rely upon telephone
instructions in the event of the failure of such confirmation to
conform to the telephone instructions received if such telephone
instructions are acted upon prior to receipt of such confirmation.
Unless otherwise expressly provided, all Instructions shall continue
in full force and effect until cancelled or superseded. If Barclays
requires test arrangements, authentication methods or other security
devices to be used with respect to Instructions, any Instructions
given by the Custodian thereafter shall be given and processed in
accordance with such terms and conditions for the use of such
arrangements, methods or devices as Barclays may put into effect and
modify from time to time. The Custodian shall safeguard any testkeys,
identifications, codes or other security devices which Barclays shall
make available to
10
8
it. Barclays and the Custodian may electronically record any
Instructions given by telephone, and any other telephone discussions,
with respect to a Custody Account or a Cash Account.
(e) If the Custodian elects, Barclays shall provide the
Custodian with such instructions and passwords as may be necessary in
order for the Custodian to have dial up access or other means of
access to Barclays telecommunications system for securities in custody
accounts. The Custodian understands information provided to it
through such system shall be limited to information relating to the
Custody Accounts and the Cash Accounts. If the Custodian elects to
utilize such system, the Custodian agrees to assume full
responsibility for the consequence of any misuse or unauthorized use
by the Custodian of any terminal device of the instructions or
passwords mentioned above.
10. AUTHORIZED PERSONS. As used in this Agreement, the
term "Authorized Persons" means such officials or such agents of the Custodian
as have been designated in writing to Barclays to act on behalf of the
Custodian in the performance of any acts which Authorized Persons may do under
this Agreement. Such persons shall continue to be Authorized Persons until
such time as Barclays receives Instructions from Authorized Persons that any
such official or agent is no longer an Authorized Person.
11. NOMINEES. Securities in a Custody account which are
ordinarily held in registered form may be registered in the nominee name of
Barclays, any Subcustodian or securities depository. The Custodian agrees to
hold any such nominee harmless from any liability as a holder of record of such
Securities. Barclays may cause any such Securities to cease to be registered
in the name of any such nominee and to be registered in the name of another
nominee provided such nominee is either a Subcustodian or a securities
depository.
12. STANDARD OF CARE. (a) Barclays shall be
responsible for the performance only of such duties as are specifically set
forth herein or contained in Instructions given to Barclays by Authorized
Persons which are not contrary to the provisions of this Agreement. Barclays
will use reasonable care with respect to the safekeeping of the Assets in the
Custody Accounts and Cash Accounts and in the performance of its functions and
duties under this Agreement. Barclays shall be liable to the Custodian for any
loss which shall occur as the direct and foreseeable result of the failure of a
Subcustodian to exercise reasonable care with respect to the safekeeping of
Asssets or in the performance of its functions or duties in connection herewith
to the same extent that such Subcustodian would be liable to the Custodian
under applicable law if such Subcustodian and the Custodian had directly
entered into a custodial agreement governed by the law of the country of such
Subcustodian. In the event of any loss to the Custodian by reason of the
failure of Barclays or its Subcustodian to utilize reasonable care, Barclays
shall be liable to the Custodian to the extent of the Custodian's direct and
foreseeable damages, to be determined (in the case of a loss of property) based
on the market value in U.S. dollars of the property which is the subject of the
loss at the date on which actual notice of such loss is received by Barclays,
and without reference to any special conditions or circumstances. Barclays
shall be held to the exercise of reasonable care in carrying out this Agreement
but shall be indemnified by, and shall be without liability to, the Custodian
for any action taken or omitted by Barclays in good faith without negligence in
accordance with the terms of this Agreement. Barclays shall be entitled to
rely, and may act, on advice of counsel (who may be counsel for the Custodian)
on all matters and shall be without liability for any action reasonably taken
or omitted pursuant to such advice. Barclays
11
9
will be subject to the reasonableness standard articulated above.
(b) Except as otherwise specifically agreed to herein,
Barclays shall have no liability for any loss occasioned by any
mistakes contained in, or errors in the transmission of, any
Instruction, or by delay in the actual receipt of any Instruction or
any notice to Barclays or by or to its Subcustodian of any payment,
redemption or other transaction regarding Securities in the Custody
Accounts in respect of which Barclays has agreed to take action as
provided in Section 8 hereof. Barclays shall not be liable for any
action taken in good faith upon Instructions or in reliance upon the
designation of "Authorized Persons" referred to in Section 10 hereof
and may rely on the genuineness of any such documents which it may in
good faith believe to be validly executed. Barclays shall not be
liable for any loss or damage resulting from or caused by
nationalization, expropriation, currency or other regulatory
restrictions, labor unrest, acts of war, civil war or terrorism,
insurrection, revolution, military or unsurped powers, nuclear fusion,
fission or radiation, earthquake, storm or other disturbance of nature
or acts of God.
(c) Without limiting the generality of the foregoing,
neither Barclays nor any Subcustodian shall be under any duty of
obligation to inquire into, or be liable for:
(i) the validity of the issue of any Securities
purchased by or for any Customer, the legality of the purchase
thereof, or the propriety of the amount paid therefore; or
(ii) the legality of the sale of any Securities by
or for any Customer, or the propriety of the amount for which
the same are sold; or
(iii) any default in the payment of principal or
income of any security other than as provided in Section 7 of
this Agreement; or
(iv) the financial condition of any broker, agent
or other party to which Securities are delivered or payments
are made pursuant to this Agreement; or
(v) the existence or content of any trade
confirmations received from brokers; the Custodian or its
Authorized Persons issuing Instructions shall bear any
responsibility to review such confirmations against
Instructions issued to and statements issued by Barclays.
(d) Neither Barclays nor any Subcustodian shall be liable
for, or considered to be the custodian of, any money represented by
any check, draft, or other instrument for the payment of money
received by it on behalf of any Customer, until Barclays or such
Subcustodian actually receives such money.
(e) Neither Barclays nor any Subcustodian shall be under
any duty or obligation to take action to effect collection of any
amount, if the Securities upon which such amount is payable are in
default, or if payment is refused after due demand or presentation,
unless and until (i) it shall be directed to take such action by
Instructions, and (ii) it shall be assured to its satisfaction of
reimbursement of its costs and expenses
12
10
by the Custodian in connection with any such action.
(f) Neither Barclays nor any Subcustodian shall be under
any duty or obligation to ascertain whether any Securities at any time
delivered to or held by it in any Custody Account are such as may
properly be held by a Customer.
(g) It is understood and agreed that Barclays is not
under any duty to maintain any insurance for the benefit of any
Customer or the Custodian or to supervise the investment of, or to
advise or make any recommendation to any Customer or the Custodian
with respect to the sale or other disposition of any Securities at any
time held hereunder or to advise or recommend the purchase of any
Securities at any time.
(h) The Custodian will indemnify Barclays for any direct
and foreseeable damages to Barclays with respect to the performance of
Barclays' obligations under this Agreement (including, but not limited
to, Barclays' legal fees and expenses and any other legal fees and
expenses for which Barclays is liable, and any loss or liability in
connection with a claim settled by Barclays, which agreement is
accepted by the Custodian) unless such direct ant foreseeable damages
arises from any failure by Barclays or any Subcustodian to exercise
reasonable care with respect to any assets in any Custody or Cash
Account or from any negligence, fraud, bad faith, willful misconduct
or reckless disregard of duties on the part of Barclays or any
Subcustodian which maintains any Securities.
13. PROXIES; CORPORATE ACTION. Unless Instruction to
the contrary are received, Barclays or its Subcustodian shall forward to the
Custodian only such communications from issuers relating to the Securities in a
Custody Account as call for voting or the exercise of rights or other specific
action (including material relative to legal proceedings intended to be
transmitted to security holders) to the extent sufficient copies are received
by Barclays or its Subcustodian in time for forwarding to the Custodian.
Barclays or its Subcustodian will cause its nominee to execute and deliver to
the Custodian proxies relating to Securities in a Custody Account registered in
the name of such nominee, but without indicating the manner in which such
proxies are to be voted. Proxies relating to bearer Securities will be
delivered in accordance with written Instructions.
14. FEES AND EXPENSES. The Custodian agrees to pay to
Barclays from time to time such compensation for its services pursuant to this
Agreement and such out-of-pocket or incidental expenses as may be mutually
agreed upon in writing from time to time. The Custodian hereby agrees to hold
Barclays harmless from any liability or loss resulting from any taxes or other
governmental charges, and any expenses related thereto, which may be imposed or
assessed with respect to any Custody Account. The Custodian agrees to pay for
and hold Barclays harmless from any liability or loss resulting from the
imposition or assessment of any taxes or other governmental charges, and any
related expenses with respect to income from or assets in the Accounts and
Barclays is authorized to charge any account of the Custodian for such items.
15. EFFECTIVENESS. This Agreement shall be effective on
the date first noted above.
13
11
16. TERMINATION. This Agreement or the accounts of any
Customer may be terminated by the Custodian or Barclays by 90 days' written
notice to the other, sent by registered mail, provided that such notice from
the Custodian shall specify the names of the persons to whom Barclays shall
deliver the Securities in the applicable Custody Accounts and to whom the cash
in the applicable Accounts shall be paid. If notice of termination is given by
Barclays, the Custodian shall, within 60 days following the giving of such
notice, specify in writing the names of the persons to whom Barclays shall
deliver the Securities in the applicable Custody Accounts and to whom the cash
in the applicable Cash Accounts shall be paid. In either case Barclays will
deliver such Securities and cash to the person so specified. If within 60 days
following the giving of a notice of termination by Barclays, the Custodian has
not specified in writing the names of the persons to whom Barclays shall
deliver the Securities in the applicable Custody Accounts and to whom the cash
in the applicable Cash Accounts shall be paid, Barclays, at its election, may
deliver such Securities and pay such cash to a bank or trust company doing
business in the State of New York to be held and disposed of pursuant to the
provisions of this Agreement, or to Authorized Persons, or may continue to hold
such Securities and Cash until such information is delivered in writing to
Barclays. The obligations of the parties hereto regarding the use of
reasonable care, indemnities and payments of fees and expenses shall survive
the termination of this Agreement.
17. NOTICES. Any notice or other communication including
Instructions from the Custodian to Barclays is to be delivered or mailed,
postage prepared to the office of Barclays at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Global Custody Group, Telephone: (000) 000-0000,
Telecopier: (000) 000-0000 or such other address as may hereafter be given to
the Custodian in accordance with the notice provisions hereunder. Any notice
from Barclays to any Customer or the Custodian is to be delivered or mailed
postage prepaid to the office of the Custodian as set forth below, or such
other address as may hereafter be given to Barclays in accordance with the
notice provisions hereunder.
18. GOVERNING LAW, SUCCESSORS AND ASSIGNS AND THIRD PARTY
BENEFICIARIES. This Agreement shall be governed by the law of the State of
New York and shall not be assignable by either party, but shall bind the
successors (including, without limitation, by merger) and assigns of the
Custodian and Barclays.
19. HEADINGS. The headings of the paragraphs hereof
are included for convenience of reference only and do not form a part of this
Agreement.
20. RIDERS. Rider A to this Agreement is incorporated
herein to the extent Assets governed hereby are subject to the Employee
Retirement Income Security Act of 1974, as amended. Rider B to this Agreement
is incorporated herein to the extent Assets governed hereby are subject to the
Investment Company Act of 1940, as amended.
IN WITNESS WHEREOF, each of the parties has caused this
Agreement to be executed in its name and behalf by its duly authorized officer
as of the date first above written.
14
12
Attest: PROVIDENT NATIONAL BANK
BY:
------------------------------ --------------------------------
Title:
-----------------------------
Address: 000 Xxxxxxx Xxxxx
Xxxxxx, XX 00000
Attest: BARCLAYS BANK PLC
BY:
------------------------------ --------------------------------
Authorized Officer
15
13
Rider A
Required Revisions for Pension Funds
SECTION 1. CUSTODY AND CASH ACCOUNTS.
Add the following language to the end of Section 1:
(c) The Custodian represents that the Assets being placed
in Barclays' custody are subject to the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"). It is understood that in
connection therewith Barclays is a service provider and not a
fiduciary of the plan and trust to which the assets are related.
Barclays shall not be considered a party to the underlying plan and
trust, and the Custodian hereby assumes all responsibility to assure
that Instructions issued under this Agreement are in compliance with
such plan and trust and all applicable requirements under ERISA.
(d) This Agreement will be interpreted so as to be in
compliance with the Department of Labor Regulations Section
2550.404b-1 concerning the maintenance of indicia of ownership of plan
assets outside of the jurisdiction of the district courts of the
United States.
SECTION 2. MAINTENANCE OF SECURITIES AND ASSETS ABROAD.
Add the following paragraph at the end of Subsection 2(b):
Instructions to execute foreign exchange transactions with
Barclays, its subsidiaries, affiliates or Subcustodians will include (1) the
time period in which the transaction must be completed; (2) the location or the
Subcustodian with whom the contract is to be executed and (3) such additional
information and guidelines as may be deemed necessary; and, if the instruction
is a standing instruction, a provision allowing such instruction to be
overridden by specific contrary instructions.
SECTION 3. FOREIGN SUBCUSTODIANS AND DEPOSITORIES.
Add the following language to the end of Section 3:
As used in this Agreement, the term Subcustodian and the term
securities depositories include a branch of Barclays, a branch of a qualified
U.S. bank, an eligible foreign custodian, or an eligible foreign securities
depository, where such terms shall mean:
(a) "qualified U.S. bank" shall mean a U.S. bank as
described in paragraph (a) 2 (ii) (A) (1) of the Department of Labor
Regulations Section 2550.404b-1;
(b) "eligible foreign custodian" shall mean a banking
institution incorporated or organized under the laws of a country
other than the United States which is
16
14
supervised or regulated by that country's government or an agency
thereof or other regulatory authority in the foreign jurisdiction
having authority over banks; and
(c) "eligible foreign securities depository" shall mean a
securities depository or clearing agency, incorporated or organized
under the laws of a country other than the United States, which is
supervised or regulated by that country's government or an agency
thereof or other regulatory authority in the foreign jurisdiction
having authority over such depositories or clearing agencies and which
is described in paragraph (c) (2) of the Department of Labor
Regulations Section 2550.404b-1.
SECTION 5. CASH ACCOUNT TRANSACTIONS.
Subsection (b) is amended to read as follows:
(b) in the event that any payment made under this Section
5 exceeds the funds available in the Cash Account, such discretionary
advance shall be deemed a service provided by Barclays under this
Agreement for which it is entitled to recover its reasonable costs and
expenses as may be determined by Barclays in good faith.
SECTION 10. AUTHORIZED PERSONS.
Add the following paragraph at the end of Section 10:
The Custodian represents that: (i) Instructions will only be
issued by or for a fiduciary pursuant to Department of Labor Regulations
Section 404b-1 (a) (2) (i), and (ii) if instructions are to be issued by an
investment manager, such entity will meet the requirements of Section 3 (38) of
ERISA and will have been designated by the Custodian or the Customer to manage
assets held in the Accounts ("Investment Manager"). An Investment Manager may
designate certain of its employees to act as Authorized Persons under this
Agreement.
17
15
Rider B
Required Revision for Mutual Funds
SECTION 1. CUSTODY AND CASH ACCOUNTS.
Add the following language to the end of Section 1:
(c) The Custodian represents that the Assets being placed
in Barclays' custody are subject to the Investment Company Act of 1940
(the "Act"), as the same may be amended from time to time.
(d) Barclays shall be responsible for assuring that it
and each Subcustodian is an eligible foreign custodian, qualified U.S.
Bank or overseas branch of a qualified U.S. Bank in accordance with
the definitions thereof set forth herein.
(e) Except to the extent that Barclays has specifically
agreed to comply with a condition of a rule, regulation or
interpretation promulgated by or under the authority of the Securities
Exchange Commission (the "SEC") or an exemptive order applicable to
accounts of this nature issued to Barclays, one or more of the other
parties hereto shall be responsible to assure that the maintenance of
assets under this Agreement complies with such rules, regulations,
interpretations or exemptive order promulgated by or under the
authority of the SEC.
(f) As used in this Agreement, as applied to any assets
or property of an investment company having multiple portfolios or
series, the term "Customer" shall mean each of such Customer's
individual investment portfolios or series.
SECTION 3. FOREIGN SUBCUSTODIANS AND DEPOSITORIES.
Add the following language to the end of Section 3:
The terms Subcustodian and securities depositories as used in
this Agreement shall mean a branch of a qualified U.S. bank, an eligible
foreign custodian or an eligible foreign securities depository, which are
further defined as follows:
(a) "qualified U.S. Bank" shall mean a qualified U.S.
bank as defined in Rule 17f-5 under the Act;
(b) "eligible foreign custodian" shall mean (i) a banking
institution or trust company incorporated or organized under the laws
of a country other than the United States that is regulated as such by
that country's government or an agency thereof and that has
shareholders' equity in excess of $200 million in U.S. currency (or
foreign currency equivalent thereof), (ii) a majority owned direct or
indirect subsidiary of a qualified U.S. bank or bank holding company
that is incorporated or organized under
18
16
the laws of a country other than the United States and that has
shareholders' equity in excess of $100 million in U.S. currency (or a
foreign currency equivalent thereof), (iii) a banking institution or
trust company incorporated or organized under the laws of a country
other than the United States or a majority owned direct or indirect
subsidiary of a qualified U.S. bank or bank holding company that is
incorporated or organized under the laws of a country other than the
United States which has such qualifications, in addition to those set
forth in clause (i) or (ii) above, as shall be specified in
Instructions and approved by Barclays, or (iv) any other entity that
shall have been so qualified by exemptive order, rule or other
appropriate action of the SEC; and
(c) "eligible foreign securities depository" shall mean a
securities depository or clearing agency, incorporated or organized
under the laws of a country other than the United States, which
operates (i) the central system for handling securities or equivalent
book-entries in that country or (ii) a transnational system for the
central handling of securities or equivalent book-entries.
The Custodian represents that the Board of each Customer has
approved each of the Subcustodians listed in Schedule A to this Agreement and
the terms of each subcustody agreement between Barclays and each Subcustodian,
and further represents that each Board has determined that the use of each
Subcustodian and the terms of each subcustodian agreement are consistent with
the best interests of the Customer's fund(s) and its (their) shareholders, in
each case, to the extent required by the Act. Barclays will supply the
Custodian with any amendment to Schedule A for approval and will supply the
Custodian and, at the Custodian's request, each Customer's Board of Directors,
with information reasonably necessary to determine such new Subcustodian's
eligibility under Rule 17f-5, including a copy of the proposed agreement with
such Subcustodian. Each Customer has supplied or will supply the Custodian
with certified copies of its Board resolution(s) with respect to the foregoing
prior to placing Assets of such Customer with any Subcustodian so approved. If
Barclays intends to remove any Subcustodian previously approved, it shall so
notify the Custodian and shall move the Securities and other assets to another
Subcustodian previously approved or to a new Subcustodian, subject to the
requirements set forth in this paragraph. Barclays shall take steps as may be
required to remove any Subcustodian which has ceased to meet the requirements
of Rule 17f-5.
Barclays hereby warrants to the Customers and the Custodian
that in its opinion, after due inquiry, the established procedures to be
followed by each of its branches, each branch of a qualified U.S. bank, each
eligible foreign custodian and each eligible foreign securities depository
holding Securities pursuant to this Agreement afford protection for such
Securities not materially different than that provided with respect to similar
securities held by Barclays (and its securities depositories) in the United
States.
The Custodian acknowledges that Barclays, in accordance with
orders of the Commission (Investment Company Act Release No. IC- 16536 August
24, 1988 and No. IC-17268 December 19, 1989), shall be permitted to delegate
its subsidiaries located in Australia, Canada, France, Japan, Spain and
Switzerland, such of Barclays' duties and obligations as is necessary to permit
any such subsidiary to hold Securities and cash in custody in the country or
countries in which it operates; provided, however, Barclays shall continue to
be liable for any loss due to such delegation except such loss as may result
from political risk or any other risk of loss (excluding bankruptcy or
insolvency of the subsidiary) for which neither Barclays
19
17
nor the subsidiary would otherwise be liable.
SECTION 9. SETTLEMENT PROCEDURES; INSTRUCTIONS.
Add the following language to the end of Section 9:
(f) Account transactions made pursuant to Section 5 and 6
of this Agreement may be made only for the purposes listed below.
Instructions must specify the purpose for which any transaction is to
be made and the Custodian shall be solely responsible to assure that
instructions are in accord with any limitations or restrictions
applicable to the Customer by law or as may be set forth in its
prospectus.
(i) In connection with the purchase or sale of
Securities at prices as confirmed by Instructions.
(ii) When Securities are called, redeemed or
retired, or otherwise become payable.
(iii) In exchange for or upon conversion into other
securities alone or other securities and cash pursuant to any
plan or merger, consolidation, reorganization,
recapitalization or readjustment.
(iv) Upon conversion of Securities pursuant to
their terms into other securities.
(v) Upon exercise of subscription, purchase or
other similar rights represented by Securities.
(vi) For the payment of interest, taxes,
management or supervisory fees, distributions or operating
expenses.
(vii) In connection with any borrowings by the
Customer requiring a pledge of Securities, but only against
receipt of amounts borrowed.
(viii) In connection with any loans, but only
against receipt of adequate collateral as specified in
Instructions which shall reflect any restrictions applicable
to the Customer.
(ix) For the purpose of redeeming shares of the
capital stock of the Customer and the delivery to, or the
crediting to the account of Barclays, its Subcustodian or the
Customer's transfer agent, such shares to be purchased or
redeemed.
(x) For the purpose of redeeming in kind shares
of the Customer against delivery of the shares to be redeemed
to Barclays, its Subcustodian or the Customer's transfer
agent.
(xi) For delivery in accordance with the
provisions of any agreement among the Customer, Barclays and a
broker-dealer registered under the
20
18
Securities Exchange Act of 1934 (the "Exchange Act") and a
member of the National Association of Securities Dealers,
Inc., relating to compliance with the rules of The Options
Clearing Corporation and of any registered national securities
exchange, or of any similar organization or organizations,
regarding escrow or other arrangements in connection with
transactions by the Customer.
(xii) For release of Securities to designated
brokers under covered call options, provided, however, payment
to Barclays of monies for the premium due and a receipt for
the Securities which are to be held in escrow. Upon exercise
of the option, or at expiration, Barclays will receive the
Securities previously deposited from brokers. Barclays will
act strictly in accordance with Instructions in the delivery
of Securities to be held in escrow and will have no
responsibility or liability for any such Securities which are
not returned promptly when due other than to make proper
request for such return.
(xiii) For spot or forward foreign exchange
transactions to facilitate security trading, receipt of income
from Securities or related transactions.
(xiv) For other proper purposes as may be specified
in Instructions, which shall include a statement that the
purpose is a proper purpose under the instruments governing
the Customer.
(xv) Upon the termination of this Agreement as set
forth in Section 16.
SECTION 12. STANDARD OF CARE.
Section 12(a) is hereby amended by deleting paragraph (a)
thereof in its entirety and substituting therefore the following:
(a) Barclays shall be responsible for the performance
only of such duties as are specifically set forth herein or contained
in Instructions given to Barclays by Authorized Persons which are not
contrary to the provisions of this Agreement. Barclays will use
reasonable care with respect to the safekeeping of the Assets in the
Custody Accounts and Cash Accounts and in the performance of its
functions and duties under this Agreement. Barclays shall be liable
to, and indemnify and hold harmless, the Custodian and the Customer,
for any loss which shall occur as the direct and foreseeable result of
the failure of a Subcustodian to exercise reasonable care with respect
to the safekeeping of Assets or in the performance of its functions or
duties in connection herewith to the same extent that such
Subcustodian would be liable to the Custodian and the Customer, as
under applicable law if such Subcustodian and the Custodian and the
Customer had directly entered into a custodial agreement governed by
the law of the country of such Subcudtodian. In the event of any loss
to the Custodian or the Customer by reason of the failure of Barclays
or its Subcustodian to utilize reasonable care, Barclays shall be
liable to, and indemnify and hold harmless, the Custodian and the
Customer to the extent of such party's direct and foreseeable damages,
to be determined (in the case of a loss of property) based on the
market value in U.S. dollars of the property which is the subject of
the loss at the date on which actual notice of such loss is received
by Barclays, and without reference to any special conditions or
circumstances. Barclays shall be held to the exercise of reasonable
care
21
19
in carrying out this Agreement but shall be indemnified by, and shall
be without liability to, the Custodian and the Customer for any action
taken or omitted by Barclays in good faith without negligence in
accordance with this Agreement. Barclays shall be entitled to rely,
and may act, on advice of counsel (who may be counsel for the
Custodian) on all matters and shall be without liability for any
action reasonably taken or omitted pursuant to such advice. Barclays
will be subject to the reasonableness standard articulated above.
SECTION 21. REPORTS.
In addition to the reports specified in Section 4 (f) of this
Agreement, which Barclays shall provide at least monthly to the Custodian, and
at the Custodian's request, to the Board of Directors of each Customer,
Barclays shall provide to the Custodian and to the Board of Directors of each
Customer on an annual basis a report confirming that it and each of the
Subcustodians is an eligible foreign custodian, a qualified U.S. Bank or branch
of a qualified U.S. Bank, as defined herein. Barclays shall also provide such
information regarding the Securities and other assets, any Subcustodian, any
foreign country or itself as may be reasonably requested from time to time by
the Custodian.
SECTION 22. CORPORATE ACTION.
Whenever Barclays or a Subcustodian receives information
concerning the Securities which requires discretionary action by the beneficial
owner of the Securities (other than a proxy), such as subscription rights,
bonus issues, stock repurchase plans and rights offerings, or legal notice or
other material intended to be transmitted to securities holders ("Corporate
Actions"), Barclays will promptly give the Custodian notice of such Corporate
Actions to the extent that Barclays has actual knowledge of a Corporate Action.
When a rights entitlement or a fractional interest resulting
from a rights issue, stock dividend, stock split or similar Corporate Action is
received which bears an expiration date, Barclays will endeavor to obtain
Instructions, but if Instructions are not received in time for Barclays to take
timely action, or actual notice of such Corporate Action was received too late
to seek Instructions, Barclays is authorized to sell such rights entitlement or
fractional interest and to credit the applicable Cash Account with the proceeds
and to take any other action it deems, in good faith, to be appropriate in
which case, provided it has met the standard of care in this Agreement, it
shall be held harmless by the Customers for any such action.
22
20
SIGNATURES.
Add the following after the signature lines:
The provisions of Section 3 hereof
are hereby acknowledged by:
BARCLAYS BANK OF CANADA
By:
-------------------------------
Authorized Attorney-in-Fact
BARCLAYS BANK S.A. (FRANCE)
By:
-------------------------------
Authorized Attorney-in-Fact
BARCLAYS TRUST AND BANKING
COMPANY (JAPAN) LIMITED
By:
-------------------------------
Authorized Attorney-in-Fact
BARCLAYS BANK S.A.E. (SPAIN)
By:
-------------------------------
Authorized Attorney-in-Fact
BARCLAYS BANK S.A. (SWITZERLAND)
By:
-------------------------------
Authorized Attorney-in-Fact
BARCLAYS BANK AUSTRALIA LIMITED
By:
-------------------------------
Authorized Attorney-in-Fact
23
21
The following investment companies hereby agree and become parities to the
provision of the Global Custody Agreement of which this Rider B is a part.
Barclays and the Custodian undertake to discharge their respective obligations
set forth in the Global Custody Agreement and herein to the undersigned
investment companies which shall each be a "Customer" under this Agreement.
By:
---------------------------------------
Title:
------------------------------------
Dated as of: November 8, 1993
24
22
Continuation of Investment Company Signatures
to
Rider B of
Global Custody Agreement
between Barclays Bank PLC
Provident National Bank
and
Investment Companies signing
this Rider B
[Name of Fund]
---------------------------------------
Title:
---------------------------------
Dated as of:
---------------------------
