CUSTODIAN AGREEMENT
THIS AGREEMENT, dated as of September 14, 2009, between the investment
funds listed on the Fund Appendix attached hereto each a series fund or fund
that is a management investment company and registered with the Commission under
the Investment Company Act of 1940 ("xxx 0000 Xxx") (each separately and
respectively the "Fund"), and XXXXX BROTHERS XXXXXXXX & CO., a limited
partnership formed under the laws of the State of New York (BBH&Co. or the
Custodian).
The terms of this Agreement shall apply separately and respectively to each
Fund, including but not limited to the terms requiring segregation of
Investments and cash accounts.
W I T N E S S E T H:
WHEREAS, the Fund wishes to employ BBH&Co. to act as custodian for the Fund and
to provide related services, all as provided herein, and BBH&Co. is willing to
accept such employment, subject to the terms and conditions herein set forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein
contained, the Fund and BBH&Co. hereby agree, as follows:
1. Appointment of Custodian. The Fund hereby appoints BBH&Co. as the Fund's
Custodian, and BBH&Co. hereby accepts such appointment. All Investments of the
Fund delivered to the Custodian or its agents or Subcustodians shall be dealt
with as provided in this Agreement. The duties of the Custodian with respect to
the Fund's Investments shall be only as set forth expressly in this Agreement
which duties are generally comprised of safekeeping and various administrative
duties that will be performed in accordance with Instructions and as reasonably
required to effect Instructions.
2. Representations, Warranties and Covenants of the Fund. The Fund hereby
represents, warrants and covenants each of the following:
2.1 This Agreement has been, and at the time of delivery of each
Instruction such Instruction will have been, duly authorized, executed and
delivered by the Fund. Neither this Agreement nor any Instruction issued
thereunder violates any Applicable Law or conflicts with or constitutes a
default under the Fund's prospectus, articles of organization or other
constitutive document or any agreement, judgment, order or decree to which
the Fund is a party or by which it or its Investments is bound.
2.2 By providing an Instruction with respect to the first acquisition of
an Investment in a jurisdiction other than the United States of America,
the Fund shall be deemed to have confirmed to the Custodian that the Fund
has (a) assessed and accepted all material Country or Sovereign Risks and
accepted responsibility for their occurrence, (b) made all determinations
required to be made by the Fund under the 1940 Act, and (iii)
appropriately and adequately disclosed to its shareholders, other
investors and all persons who have rights in or to such Investments, all
material investment risks, including those relating to the custody and
settlement infrastructure or the servicing of securities in such
jurisdiction.
2.3 The Fund shall safeguard and shall solely be responsible for the
safekeeping of any testkeys, identification codes, passwords, other
security devices or statements of account with which the Custodian
provides it. If the Fund uses any on-line or similar communications
service made available by the Custodian, the Fund shall be solely
responsible for ensuring the security of its access to the service and for
the use of the service, and shall only attempt to access the service and
the Custodian's computer systems as directed by the Custodian. If the
Custodian provides any computer software to the Fund relating to the
services described in this Agreement, the Fund will only use the software
for the purposes for which the Custodian provided the software to the
Fund, and will abide by the license agreement accompanying the software
and any other security policies which the Custodian provides to the Fund.
2.4 By providing an Instruction in respect of an Investment (which
Instruction may relate to among other things, the execution of trades),
the Fund hereby (i) authorizes BBH&Co. to complete such documentation as
may be required or appropriate for the execution of the Instruction, and
agrees to be contractually bound to the terms of such documentation "as
is" without recourse against BBH&Co.; (ii) represents, warrants and
covenants that it has accepted and agreed to comply with all Applicable
Law, terms and conditions to which it and/or its Investment may be bound,
including without limitation, requirements imposed by the Investment
prospectus or offering circular, subscription agreement, any application
or other documentation relating to an Investment (e.g., compliance with
suitability requirements and eligibility restrictions); (iii) acknowledges
and agrees that BBH&Co. will not be responsible for the accuracy of any
information provided to it by or on behalf of the Fund, or for any
underlying commitment or obligation inherent to an Investment; (iv)
represents, warrants and covenants that it will not effect any sale,
transfer or disposition of Investment(s) held in the BBH&Co.'s name by any
means other than the issuance of an Instruction by the Fund to BBH&Co.;
(v) acknowledges that collective investment schemes (and/or their
agent(s)) in which the Fund invests may pay to BBH certain fees (including
without limitation, shareholder servicing and/or trailer fees) in respect
of the Fund's investments in such schemes; (vi) represents, warrants and
covenants that it will provide BBH&Co. with such information as is
necessary or appropriate to enable BBH&Co.'s performance pursuant to an
Instruction or under this Agreement; and, (vii) represents that it is not
a "Plan" (which term includes (1) employee benefit plans that are subject
to the United States ("US") Employee Retirement Income Security Act of
1974, as amended ("ERISA"), or plans, individual retirement accounts and
other arrangements that are subject to Section 4975 of the US Internal
Revenue Code of 1986, as amended (the "Code"), (2) plans, individual
retirement accounts and other arrangements that are subject to the
prohibited transaction provisions of Section 406 of ERISA or Section 4975
of the Code, and (3) entities the underlying assets of which are
considered to include "plan assets" of such plans, accounts and
arrangements), or an entity purchasing shares on behalf of, or with the
"plan assets" of, a Plan.
3. Representation and Warranty of BBH&Co. BBH&Co. hereby represents and
warrants that this Agreement has been duly authorized, executed and delivered by
BBH&Co. and does not and will not violate any Applicable Law or conflict with or
constitute a default under BBH&Co.'s limited partnership agreement or any
agreement, instrument, judgment, order or decree to which BBH&Co. is a party or
by which it is bound.
4. Instructions. Unless otherwise explicitly indicated herein, the Custodian
shall perform its duties pursuant to Instructions. As used herein, the term
Instruction shall mean a directive initiated by the Fund, acting through its
board of directors or trustees or other Authorized Person, which directive shall
conform to the requirements of this Section 4.
4.1 Authorized Persons. For purposes hereof, an Authorized Person shall be
a person or entity authorized to give Instructions to the Custodian by
written notices or otherwise for or on behalf of the Fund in accordance
with procedures delivered to and acknowledged by the Custodian. The
Custodian may treat any Authorized Person as having the full authority of
the Fund to issue Instructions hereunder unless the notice of
authorization contains explicit limitations as to said authority. The
Custodian shall be entitled to rely upon the authority of Authorized
Persons until it receives appropriate written notice from the Fund to the
contrary.
4.2 Form of Instruction. Each Instruction shall be transmitted by such
secured or authenticated electro-mechanical means as the Custodian shall
make available to the Fund from time to time unless the Fund shall elect
to transmit such Instruction in accordance with Subsections 4.2.1 through
4.2.3 of this Section.
4.2.1 Fund Designated Secured-Transmission Method. Instructions may
be transmitted through a secured or tested electro-mechanical means
identified by the Fund or by an Authorized Person entitled to give
Instruction and acknowledged and accepted by the Custodian, it being
understood that such acknowledgment shall authorize the Custodian to
accept such means of delivery but shall not represent a judgment by
the Custodian as to the reasonableness or security of the means
utilized by the Authorized Person.
4.2.2 Written Instructions. Instructions may be transmitted in a
writing that bears the manual signature of Authorized Persons.
4.2.3 Other Forms of Instruction. Instructions may also be
transmitted by another means determined by the Fund or Authorized
Persons and acknowledged and accepted by the Custodian (subject to
the same limits as to acknowledgements as are contained in
Subsection 4.2.1, above) including Instructions given orally or by
SWIFT or telefax (whether tested or untested).
When an Instruction is given by means established under Subsections 4.2.1
through 4.2.3, it shall be the responsibility of the Custodian to use
reasonable care to adhere to any security or other procedures established
in writing between the Custodian and the Authorized Person with respect to
such means of Instruction, but the Authorized Person shall be solely
responsible for determining that the particular means chosen is reasonable
under the circumstances. Oral Instructions shall be binding upon the
Custodian only if and when the Custodian takes action with respect
thereto. With respect to telefax instructions, the parties agree and
acknowledge that receipt of legible instructions cannot be assured, that
the Custodian cannot verify that authorized signatures on telefax
instructions are original or properly affixed, and that the Custodian
shall not be liable for losses or expenses incurred through actions taken
in reliance on inaccurately stated, illegible or unauthorized telefax
instructions. The provisions of Section 4A of the Uniform Commercial Code
shall apply to Funds Transfers performed in accordance with Instructions.
The Funds Transfer Services Schedule and the Electronic and Online
Services Schedule to this Agreement shall each comprise a designation of a
means of delivering Instructions for purposes of this Section 4.2.
4.3 Completeness and Contents of Instructions. The Authorized Person shall
be responsible for assuring the adequacy and accuracy of Instructions.
Particularly, upon any acquisition or disposition or other dealing in the
Fund's Investments and upon any delivery and transfer of any Investment or
moneys, the person initiating the Instruction shall give the Custodian an
Instruction with appropriate detail, including, without limitation:
4.3.1 The transaction date and the date and location of settlement;
4.3.2 The specification of the type of transaction;
4.3.3 A description of the Investments or moneys in question,
including, as appropriate, quantity, price per unit, amount of money
to be received or delivered and currency information. Where an
Instruction is communicated by electronic means, or otherwise where
an Instruction contains an identifying number such as a CUSIP, SEDOL
or ISIN number, the Custodian shall be entitled to rely on such
number as controlling notwithstanding any inconsistency contained in
the Instruction, particularly with respect to Investment
description; and
4.3.4 The name of the broker or similar entity concerned with
execution of the transaction.
If the Custodian determines that an Instruction is either unclear or
incomplete, the Custodian may give prompt notice of such determination to
the Fund, and the Fund shall thereupon amend or otherwise reform the
Instruction. In such event, the Custodian shall have no obligation to take
any action in response to the Instruction initially delivered until the
redelivery of an amended or reformed Instruction.
4.4 Timeliness of Instructions. In giving an Instruction, the Fund shall
take into consideration delays which may occur due to the involvement of a
Subcustodian or agent, differences in time zones, and other factors
particular to a given market, exchange or issuer. When the Custodian has
established specific timing requirements or deadlines with respect to
particular classes of Instruction, or when an Instruction is received by
the Custodian at such a time that it could not reasonably be expected to
have acted on such instruction due to time zone differences or other
factors beyond its reasonable control, the execution of any Instruction
received by the Custodian after such deadline or at such time (including
any modification or revocation of a previous Instruction) shall be at the
risk of the Fund.
5. Safekeeping of Fund Assets. The Custodian shall hold Investments delivered
to it or Subcustodians for the Fund in accordance with the provisions of this
Section. The Custodian shall not be responsible for (a) the safekeeping of
Investments not delivered or that are not caused to be issued to it or its
Subcustodians; or, (b) pre-existing faults or defects in Investments that are
delivered to the Custodian or its Subcustodians. The Custodian is hereby
authorized to hold with itself or a Subcustodian, and to record in one or more
accounts, all Investments delivered to and accepted by the Custodian, any
Subcustodian or their respective agents pursuant to an Instruction or in
consequence of any corporate action or income event. The Custodian shall hold
Investments for the account of each Fund separately and respectivelyand shall
segregate Investments from assets belonging to the Custodian and shall cause its
Subcustodians to segregate Investments from assets belonging to the Subcustodian
in an account held for the Fund or in an account maintained by the Subcustodian
generally for non-proprietary assets of the Custodian.
5.1 Use of Securities Depositories. The Custodian may deposit and maintain
Investments in any Securities Depository, either directly or through one
or more Subcustodians appointed by the Custodian. Investments held in a
Securities Depository shall be held (a) subject to the agreement, rules,
statement of terms and conditions or other document or conditions
effective between the Securities Depository and the Custodian or the
Subcustodian, as the case may be, and (b) in an account for the Fund or in
bulk segregation in an account maintained for the non-proprietary assets
of the entity holding such Investments in the Depository. If market
practice or the rules and regulations of the Securities Depository prevent
the Custodian, the Subcustodian or (any agent of either) from holding its
client assets in such a separate account, the Custodian, the Subcustodian
or other agent shall as appropriate segregate such Investments for benefit
of the Fund or for benefit of clients of the Custodian generally on its
own books.
5.2 Certificated Assets. Investments which are certificated may be held in
registered or bearer form: (a) in the Custodian's vault; (b) in the vault
of a Subcustodian or agent of the Custodian or a Subcustodian; or (c) in
an account maintained by the Custodian, Subcustodian or agent at a
Securities Depository; all in accordance with customary market practice in
the jurisdiction in which any Investments are held.
5.3 Registered Assets. Investments which are registered shall be
registered in the name of the Custodian, a Subcustodian, or in the name of
the Fund or a nominee for any of the foregoing, and may be held in any
manner set forth in Section 5.2 above with or without any identification
of fiduciary capacity in such registration.
5.4 Book Entry Assets. Investments which are represented by book-entry may
be so held in an account maintained by the Book-entry Agent on behalf of
the Custodian, a Subcustodian or another Agent of the Custodian, or a
Securities Depository.
5.5 Uniform Commercial Code. Each Fund and the Custodian agree that the
Investments are "financial Assets" within the meaning of Section 8-102(a)
of the Uniform Commercial Code ("UCC"); that the Investments will be held
in a "securities account" within the meaning of UCC Section 8-102; and
that the Custodian is a "securities intermediary" within the meaning of
Section UCC 8-301.
5.6 Replacement of Lost Investments. In the event of a loss of Investments
for which loss the Custodian is responsible under the terms of this
Agreement, the Custodian shall replace such Investment, or in the event
that such replacement cannot be effected, the Custodian shall pay to the
Fund the fair market value of such Investment based on the last available
price as of the close of business in the relevant market on the date that
a claim was first made to the Custodian with respect to such loss, or such
other lesser amount as shall be agreed by the parties.
6. Administrative Duties of the Custodian. The Custodian shall perform the
following administrative duties with respect to Investments of the Fund.
6.1 Purchase of Investments. Pursuant to Instruction, Investments
purchased for the account of the Fund shall be paid for (a) against
delivery thereof to the Custodian or a Subcustodian, as the case may be,
either directly or through a Clearing Corporation or a Securities
Depository (in accordance with the rules of such Securities Depository or
such Clearing Corporation), or (b) otherwise in accordance with an
Instruction, Applicable Law, generally accepted trade practices, or the
terms of the instrument representing such Investment.
6.2 Sale of Investments. Pursuant to Instruction, Investments sold for the
account of the Fund shall be delivered (a) against payment therefor in
cash, by check or by bank wire transfer, (b) by credit to the account of
the Custodian or the applicable Subcustodian, as the case may be, with a
Clearing Corporation or a Securities Depository (in accordance with the
rules of such Securities Depository or such Clearing Corporation), or (c)
otherwise in accordance with an Instruction, Applicable Law, generally
accepted trade practices, or the terms of the instrument representing such
Investment.
6.3 Delivery and Receipt in Connection with Borrowings of the Fund or
other Collateral and Margin Requirements. Pursuant to Instruction, the
Custodian may deliver or receive Investments or cash of the Fund in
connection with borrowings or loans by the Fund and other collateral and
margin requirements.
6.4 Futures and Options. If, pursuant to an Instruction, the Custodian
shall become a party to an agreement with the Fund and a futures
commission merchant regarding margin (Tri-Party Agreement), the Custodian
shall (a) receive and retain, to the extent the same are provided to the
Custodian, confirmations or other documents evidencing the purchase or
sale by the Fund of exchange-traded futures contracts and commodity
options, (b) when required by such Tri-Party Agreement, deposit and
maintain in an account opened pursuant to such Agreement (Margin Account),
segregated either physically or by book-entry in a Securities Depository
for the benefit of any futures commission merchant, such Investments as
the Fund shall have designated as initial, maintenance or variation
"margin" deposits or other collateral intended to secure the Fund's
performance of its obligations under the terms of any exchange-traded
futures contracts and commodity options; and (c) thereafter pay, release
or transfer Investments into or out of the margin account in accordance
with the provisions of such Agreement. Alternatively, the Custodian may
deliver Investments, in accordance with an Instruction, to a futures
commission merchant for purposes of margin requirements in accordance with
Rule 17f-6 under the 1940 Act. The Custodian shall in no event be
responsible for the acts and omissions of any futures commission merchant
to whom Investments are delivered pursuant to this Section; for the
sufficiency of Investments held in any Margin Account; or, for the
performance of any terms of any exchange-traded futures contracts and
commodity options.
6.5 Contractual Obligations and Similar Investments. From time to time,
the Fund's Investments may include Investments that are not ownership
interests as may be represented by certificate (whether registered or
bearer), by entry in a Securities Depository or by Book-Entry Agent,
registrar or similar agent for recording ownership interests in the
relevant Investment. If the Fund shall at any time acquire such
Investments, including without limitation deposit obligations, loan
participations, repurchase agreements and derivative arrangements, the
Custodian shall (a) receive and retain, to the extent the same are
provided to the Custodian, confirmations or other documents evidencing the
arrangement; and (b) perform on the Fund's account in accordance with the
terms of the applicable arrangement, but only to the extent directed to do
so by Instruction. The Custodian shall have no responsibility for
agreements running to the Fund as to which it is not a party other than to
retain, to the extent the same are provided to the Custodian, documents or
copies of documents evidencing the arrangement and, in accordance with
Instruction, to include such arrangements in reports made to the Fund.
6.6 Exchange of Securities. Unless otherwise directed by Instruction, the
Custodian shall: (a) exchange securities held for the account of the Fund
for other securities in connection with any reorganization,
recapitalization, conversion, stock split, change of par value of shares
or similar event, and (b) deposit any such securities in accordance with
the terms of any reorganization or protective plan.
6.7 Surrender of Securities. Unless otherwise directed by Instruction, the
Custodian may surrender securities: (a) in temporary form for definitive
securities; (b) for transfer into the name of an entity allowable under
Section 5.3; and (c) for a different number of certificates or instruments
representing the same number of shares or the same principal amount of
indebtedness.
6.8 Rights, Warrants, Etc. Pursuant to Instruction, the Custodian shall
(a) deliver warrants, puts, calls, rights or similar securities to the
issuer or trustee thereof, or to any agent of the issuer or trustee, for
purposes of exercising such rights or selling such securities, and (b)
deliver securities in response to any tender offer.
6.9 Mandatory Corporate Actions. Unless otherwise directed by Instruction,
the Custodian shall: (a) comply with the terms of all mandatory or
compulsory exchanges, calls, tenders, redemptions or similar rights of
securities ownership affecting securities held on the Fund's account and
promptly notify the Fund of such action; and (b) collect all stock
dividends, rights and other items of like nature with respect to such
securities.
6.10 Income Collection. Unless otherwise directed by Instruction, the
Custodian shall collect any amount due and payable to the Fund with
respect to Investments and promptly credit the amount collected to a
Principal or Agency Account; provided, however, that the Custodian shall
not be responsible for: (a) the collection of amounts due and payable with
respect to Investments that are in default or (b) the collection of cash
or share entitlements with respect to registered Investments that are not
registered as provided in Section 5.3. The Custodian is hereby authorized
to endorse and deliver any instrument required to be so endorsed and
delivered to effect collection of any amount due and payable to the Fund
with respect to Investments.
6.11 Corporate Action Information. In fulfilling the duties set forth in
Sections 6.6 through 6.10 above, the Custodian shall provide to the Fund
such material information pertaining to a corporate action which the
Custodian actually receives; provided that the Custodian shall not be
responsible for the completeness or accuracy of such information.
Information relative to any pending corporate action made available to the
Fund via any of the services described in the Electronic and Online
Services Schedule shall constitute the delivery of such information by the
Custodian. Any advance credit of cash or shares expected to be received as
a result of any corporate action shall be subject to actual collection and
may be reversed by the Custodian.
6.12 Proxy Materials. The Custodian shall deliver, or cause to be
delivered, to the Fund proxy forms, notices of meeting, and any other
notices or announcements materially affecting or relating to Investments
received by the Custodian. Information relative to any pending corporate
action made available to the Fund via any of the services described in the
Electronic and Online Services Schedule shall constitute the delivery of
such information by the Custodian.
6.13 Ownership Certificates and Disclosure of the Fund's Interest. The
Custodian is hereby authorized to execute on behalf of the Fund ownership
certificates, affidavits or other disclosure required under Applicable Law
or established market practice in connection with the receipt of income,
capital gains or other payments by the Fund with respect to Investments,
or in connection with the sale, purchase or ownership of Investments.
With respect to securities issued in the United States of America,
the Custodian [ ] may [ ] may not release the identity of the Fund
to an issuer which requests such information pursuant to the
Shareholder Communications Act of 1985 for the specific purpose of
direct communications between such issuer and the Fund. IF NO BOX IS
CHECKED, THE CUSTODIAN SHALL RELEASE SUCH INFORMATION UNTIL IT
RECEIVES CONTRARY INSTRUCTIONS FROM THE FUND. With respect to
securities issued outside of the United States of America,
information shall be released in accordance with law or custom of
the particular country in which such security is located.
6.14. Taxes. The Custodian shall, where applicable, assist the Fund in the
reclamation of taxes withheld on dividends and interest payments received
by the Fund. In the performance of its duties with respect to tax
withholding and reclamation, the Custodian shall be entitled to rely on
the advice of counsel as provided in Section 12.11, and upon information
and advice regarding the Fund's tax status that is received from or on
behalf of the Fund without duty of separate inquiry.
6.15 Other Dealings. The Custodian shall otherwise act as directed by
Instruction, including without limitation effecting the free payments of
moneys or the free delivery of securities, provided that such Instruction
shall indicate the purpose of such payment or delivery and that the
Custodian shall record the party to whom the payment or delivery is made.
6.16 Nondiscretionary Details and Minor Expenses. The Custodian shall
attend to all nondiscretionary details in connection with the sale or
purchase or other administration of Investments, except as otherwise
directed by Instruction, and may make payments to itself or others for
minor expenses of administering Investments under this Agreement, provided
that the Fund shall have the right to request an accounting with respect
to such expenses.
6.17 Use of Agents. The Custodian may at any time in its discretion
appoint (and may at any time remove) agents (other than Subcustodians) to
carry out some or all of the administrative provisions of this Agreement
(Agents), provided, however, that the appointment of an Agent shall not
relieve the Custodian of its responsibilities and liabilities under this
Agreement.
7. Cash Accounts, Deposits and Money Movements. Subject to the terms and
conditions set forth in this Section 7, each Fund hereby authorizes the
Custodian to open and maintain, with itself or with Subcustodians, cash accounts
in United States Dollars, in such other currencies as are the currencies of the
countries in which the Fund maintains Investments or in such other currencies as
the Fund shall from time to time request by Instruction. Notwithstanding
anything in this Agreement to the contrary, the Fund shall be liable as
principal for any overdrafts occurring in any cash accounts.
7.1 Types of Cash Accounts. Cash accounts opened on the books of the
Custodian (Principal Accounts) shall be opened in the name of eac Fund.
Such accounts with respect to each Fund collectively shall be a deposit
obligation of the Custodian and shall be subject to the terms of this
Section 7 and the general liability provisions contained in Section 9.
Cash accounts opened on the books of a Subcustodian may be opened in the
name of the Fund or the Custodian or in the name of the Custodian for its
customers generally (Agency Accounts). Such deposits shall be obligations
of the Subcustodian and shall be treated as an Investment of the Fund.
Accordingly, the Custodian shall be responsible for exercising reasonable
care in the administration of such accounts, but shall not be liable for
their repayment in the event the Subcustodian, by reason of its
bankruptcy, insolvency or otherwise, fails to make repayment. In
connection with the services provided hereunder, the Custodian is hereby
directed to open cash accounts on its books and records from time to time
for the purposes of receiving subscriptions and/or processing redemptions
on behalf of the Fund, and/or for the purposes of aggregating, netting
and/or clearing transactions (including, without limitation foreign
exchange, repurchase agreements, capital stock activity, expense payment)
or other administrative purposes on behalf of the Fund or the Fund and
affiliated funds (each an "Account"). Each such Account shall be subject
to the terms and conditions of this Agreement (including, without
limitation Section 7.6) and the Fund shall be liable for the satisfaction
of its own obligations in connection with each Account; provided however,
the Fund shall not be liable for the obligations of any other affiliated
fund thereunder.
In connection with the services provided hereunder, the Custodian is
hereby directed to open cash accounts on its books and records from time
to time for the purposes of receiving subscriptions and/or processing
redemptions on behalf of the Fund and/or for the purposes of aggregating,
netting and/or clearing transactions (including, without limitation
foreign exchange, repurchase agreements, capital stock activity, expense
payment) or other administrative purposes, each on behalf of the Fund
(each an "Account"). Each such Account shall be subject to the terms and
conditions of this Agreement and the Fund shall be liable for the
satisfaction of its obligations in connection with each Account.
7.2 Payments and Credits with Respect to the Cash Accounts. The Custodian
shall make payments from or deposits to any of the cash accounts in the
course of carrying out its administrative duties, including but not
limited to income collection with respect to the Fund's Investments, and
otherwise in accordance with Instructions. The Custodian and its
Subcustodians shall be required to credit amounts to the cash accounts
only when moneys are actually received in cleared funds in accordance with
banking practice in the country and currency of deposit. Any credit made
to any Principal or Agency Account before actual receipt of cleared funds
shall be provisional and may be reversed by the Custodian in the event
such payment is not actually collected. Unless otherwise specifically
agreed in writing by the Custodian or any Subcustodian, all deposits shall
be payable only at the branch of the Custodian or Subcustodian where the
deposit is made or carried.
7.3 Currency and Related Risks. The Fund bears the risks of holding or
transacting in any currency, including any xxxx to market exposure
associated with a foreign exchange transaction undertaken with the
Custodian. The Custodian shall not be liable for any loss or damage
arising from the applicability of any law or regulation now or hereafter
in effect, or from the occurrence of any event, which may delay or affect
the transferability, convertibility or availability of any currency in the
country (a) in which such Principal or Agency Accounts are maintained or
(b) in which such currency is issued, and in no event shall the Custodian
be obligated to make payment of a deposit denominated in a currency during
the period during which its transferability, convertibility or
availability has been affected by any such law, regulation or event.
Without limiting the generality of the foregoing, neither the Custodian
nor any Subcustodian shall be required to repay any deposit made at a
foreign branch of either the Custodian or Subcustodian if such branch
cannot repay the deposit due to a cause for which the Custodian would not
be responsible in accordance with the terms of Section 9 of this Agreement
unless the Custodian or such Subcustodian expressly agrees in writing to
repay the deposit under such circumstances. All currency transactions in
any account opened pursuant to this Agreement are subject to exchange
control regulations of the United States and of the country where such
currency is the lawful currency or where the account is maintained. Any
taxes, costs, charges or fees imposed on the convertibility of a currency
held by the Fund shall be for the account of the Fund.
7.4 Foreign Exchange Transactions. The Custodian shall, subject to the
terms of this Section, settle foreign exchange transactions (including
contracts, futures, options and options on futures) on behalf and for the
account of the Fund with such currency brokers or banking institutions,
including Subcustodians, as the Fund may direct pursuant to Instructions.
The Custodian may act as principal in any foreign exchange transaction
with the Fund in accordance with Section 7.4.2 of this Agreement. The
obligations of the Custodian in respect of all foreign exchange
transactions (whether or not the Custodian shall act as principal in such
transaction) shall be contingent on the free, unencumbered transferability
of the currency transacted on the actual settlement date of the
transaction.
7.4.1 Third Party Foreign Exchange Transactions. The Custodian shall
process foreign exchange transactions (including without limitation
contracts, futures, options, and options on futures), where any
third party acts as principal counterparty to the Fund on the same
basis it performs duties as agent for the Fund with respect to any
other of the Fund's Investments. Accordingly the Custodian shall
only be responsible for delivering or receiving currency on behalf
of the Fund in respect of such contracts pursuant to Instructions.
The Custodian shall not be responsible for the failure of any
counterparty (including any Subcustodian) in such agency transaction
to perform its obligations thereunder. The Custodian (a) shall
transmit cash and Instructions to and from the currency broker or
banking institution with which the Fund has executed a foreign
exchange contract or option, (b) may make free outgoing payments of
cash in the form of United States Dollars or foreign currency
without receiving confirmation of a foreign exchange contract or
option or confirmation that the countervalue currency completing the
foreign exchange contract has been delivered or received or that the
option has been delivered or received, and (c) shall hold in
safekeeping all confirmations, certificates and other documents and
agreements received by the Custodian and evidencing or relating to
such foreign exchange transactions. The Fund accepts full
responsibility for its use of third-party foreign exchange dealers
and for execution of the foreign exchange contracts and options and
understands that the Fund shall be responsible for any and all costs
and interest charges which may be incurred by the Fund or the
Custodian as a result of the failure or delay of third parties to
deliver foreign exchange.
7.4.2 Foreign Exchange with the Custodian as Principal. The
Custodian, as principal, may undertake such foreign exchange
transactions with the Fund as the Custodian and the Fund may agree
from time to time. In this event, the foreign exchange transaction
will be performed in accordance with the particular agreement of the
parties, or in the event a principal foreign exchange transaction is
initiated by Instruction in the absence of specific agreement, the
transaction will be performed in accordance with the usual
commercial terms of the Custodian. In the event that the Fund
defaults on the settlement of any such foreign exchange transaction
with the Custodian, the Fund shall be liable for contracted currency
of the transaction together with any xxxx to market exposure
associated with the replacement purchase of the contracted currency
undertaken with the Custodian.
7.5 Delays. If no event of Force Majeure shall have occurred and be
continuing and in the event that a delay shall have been caused by the
negligence or willful misconduct of the Custodian in carrying out an
Instruction to credit or transfer cash, the Custodian shall be liable to
the Fund: (a) with respect to Principal Accounts, for interest to be
calculated at the rate customarily paid on such deposit and currency by
the Custodian on overnight deposits at the time the delay occurs for the
period from the day when the transfer should have been effected until the
day it is in fact effected; and, (b) with respect to Agency Accounts, for
interest to be calculated at the rate customarily paid on such deposit and
currency by the Subcustodian on overnight deposits at the time the delay
occurs for the period from the day when the transfer should have been
effected until the day it is in fact effected. The Custodian shall not be
liable for delays in carrying out Instructions to transfer cash which are
not due to the Custodian's own negligence or willful misconduct.
7.6 Advances. If, for any reason in connection with this Agreement the
Custodian or any Subcustodian makes an Advance to facilitate settlement or
otherwise for the benefit of the Fund (whether or not any Principal or
Agency Account shall be overdrawn either during, or at the end of, any
Business Day), the Fund hereby does:
7.6.1 acknowledge that the Fund shall have no right, title or
interest in or to any Investments purchased with such Advance or
proceeds of such Investments, and that any credit to an account of
Fund shall be provisional, until: (a) the debit of the Principal or
Agency Account by Custodian for an amount equal to Advance Costs;
and/or (b) if such debit produces an overdraft in such account,
reimbursement to the Custodian or Subcustodian for the amount of
such overdraft;
7.6.2 acknowledge that the Custodian has an automatically perfected
statutory security interest in Investments purchased with any such
Advance pursuant to Section 9-206 of the Uniform Commercial Code as
in effect in the State of New York from time to time;
7.6.3 in addition, in order to secure the obligations of the Fund to
pay or perform any and all obligations of the Fund pursuant to this
Agreement, including without limitation to repay any Advance made
pursuant to this Agreement, grant to the Custodian a security
interest in all Investments and proceeds thereof (as defined in the
Uniform Commercial Code as currently in effect in the State of New
York); and agree to take, and agree that the Custodian may take, in
respect of the security interest referenced above, any further
actions that the Custodian may reasonably require.
7.7 Custodian's Rights. Neither the Custodian nor any Subcustodian
shall be obligated to make any Advance or to allow an Advance to
occur to a Fund, and in the event that the Custodian or any
Subcustodian does make or allow an Advance, any such Advance and any
transaction giving rise to such Advance shall be for the account and
risk of the particular Fund and shall not be deemed to be a
transaction undertaken by the Custodian for its own account and
risk. If such Advance shall have been made or allowed by a
Subcustodian or any other person, the Custodian may assign all or
part of its security interest referenced above and any other rights
granted to the Custodian hereunder to such Subcustodian or other
person. If the Fund shall fail to repay the Advance Costs when due,
the Custodian or its assignee, as the case may be, shall be entitled
to a portion of the available cash balance in any Agency or
Principal Account equal to such Advance Costs, and the Fund
authorizes the Custodian, on behalf of the Fund, to pay an amount
equal to such Advance Costs irrevocably to such Subcustodian or
other person, and to dispose of any property in such Account to the
extent necessary to make such payment. The Custodian and any
Subcustodian shall have the rights and benefits of a secured
creditor that is a securities intermediary under such Articles 8 and
9 with respect to the Investments and the Advance Costs.
7.8 Integrated Account. For purposes hereof, deposits maintained in all
Principal Accounts held for a particular Fund (whether or not denominated
in Dollars) shall collectively constitute a single and indivisible current
account with respect to the Fund's obligations to the Custodian or its
assignee, and balances in the Principal Accounts shall be available for
satisfaction of the Fund's obligations under this Section 7. The Custodian
shall further have a right of offset against the balances in any Agency
Account held for a particular Fund maintained hereunder to the extent that
the aggregate of all Principal Accounts is overdrawn.
8. Subcustodians and Securities Depositories. Subject to the provisions
hereinafter set forth in this Section 8, the Fund hereby authorizes the
Custodian to utilize Securities Depositories to act on behalf of the Fund and to
appoint from time to time and to utilize Subcustodians. With respect to
securities and funds held by a Subcustodian, either directly or indirectly
(including by a Securities Depository or Clearing Corporation), notwithstanding
any provisions of this Agreement to the contrary, payment for securities
purchased and delivery of securities sold may be made prior to receipt of
securities or payment, respectively, and securities or payment may be received
in a form in accordance with (a) governmental regulations, (b) rules of
Securities Depositories and Clearing Agencies, (c) generally accepted trade
practice in the applicable local market, (d) the terms and characteristics of
the particular Investment, or (e) the terms of Instructions.
8.1 Domestic Subcustodians and Securities Depositories. The Custodian may
deposit and/or maintain, either directly or through one or more Agents
appointed by the Custodian, Investments of the Fund in any Securities
Depository in the United States, including The Depository Trust Company,
provided such Depository meets applicable requirements of the Federal
Reserve Bank or of the Securities and Exchange Commission. The Custodian
may,, 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 on behalf
of the Fund as a Subcustodian for purposes of holding Investments of the
Fund in the United States, provided, however, that the appointment shall
not relieve the Custodian of its responsibilities and liabilities
hereunder.
8.2 Foreign Subcustodians and Securities Depositories. Unless instructed
otherwise by the Fund, the Custodian may deposit and/or maintain non-U.S.
Investments of the Fund in any non-U.S. Securities Depository provided
such Securities Depository meets the requirements of an "eligible
securities depository" under Rule 17f-7 promulgated under the 1940 Act, or
any successor rule or regulation ("Rule 17f-7") or which by order of the
Securities and Exchange Commission is exempted therefrom. Prior to the
time that securities are placed with such Securities Depository, but
subject to the provisions of Section 8.2.4 below, the Custodian shall have
prepared an assessment of the custody risks associated with maintaining
assets with the Securities Depository and shall have established a system
to monitor such risks on a continuing basis in accordance with subsection
8.2.3 of this Section. Additionally, the Custodian may, from time to time,
appoint (a) any bank, trust company or other entity meeting the
requirements of an "eligible foreign custodian" under Rule 17f-5 or which
by order of the Securities and Exchange Commission is exempted therefrom,
or (b) 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 Investments of the Fund outside the
United States.
8.3 Delegation of Board Review of Subcustodians. From time to time, the
Custodian may agree to perform certain reviews of Subcustodians and of
Subcustodian Contracts as the delegate of the Fund's Board. In such event,
the Custodian's duties and obligations with respect to this delegated
review will be performed in accordance with the terms of the attached
17f-5 Delegation Schedule to this Agreement.
8.4 Board Approval of Foreign Subcustodians. Unless and except to the
extent that the Board has delegated to the Custodian and the Custodian has
accepted delegation of review of certain matters concerning the
appointment of Subcustodians pursuant to Subsection 8.3, the Custodian
shall, prior to the appointment of any Subcustodian for purposes of
holding Investments of the Fund outside the United States, obtain written
confirmation of the approval of the Board of Trustees or Directors of the
Fund with respect to (a) the identity of a Subcustodian, and (b) the
Subcustodian agreement which shall govern such appointment, such approval
to be signed by an Authorized Person. An Instruction to open an account in
a given country shall comprise authorization of the Custodian to hold
assets in such country in accordance with the terms of this Agreement. The
Custodian shall not be required to make independent inquiry as to the
authorization of the Fund to invest in such country.
8.5 Monitoring and Risk Assessment of Securities Depositories. Prior to
the placement of any assets of the Fund with a non-U.S. Securities
Depository, the Custodian: (a) shall provide to the Fund or its authorized
representative an assessment of the custody risks associated with
maintaining assets within such Securities Depository; and (b) shall have
established a system to monitor the custody risks associated with
maintaining assets with such Securities Depository on a continuing basis
and to promptly notify the Fund or its Investment Adviser of any material
changes in such risk. In performing its duties under this subsection, the
Custodian shall use reasonable care and may rely on such reasonable
sources of information as may be available including but not limited to:
(i) published ratings; (ii) information supplied by a Subcustodian that is
a participant in such Securities Depository; (iii) industry surveys or
publications; (iv) information supplied by the depository itself, by its
auditors (internal or external) or by the relevant Foreign Financial
Regulatory Authority. It is acknowledged that information procured through
some or all of these sources may not be independently verifiable by the
Custodian and that direct access to Securities Depositories is limited
under most circumstances. Accordingly, the Custodian shall not be
responsible for errors or omissions in its duties hereunder provided that
it has performed its monitoring and assessment duties with reasonable
care. The risk assessment shall be provided to the Fund or its Investment
Advisor by such means as the Custodian shall reasonably establish. Advices
of material change in such assessment may be provided by the Custodian in
the manner established as customary between the Fund and the Custodian for
transmission of material market information.
8.6 Responsibility for Subcustodians. Except as provided in the last
sentence of this Section 8.6, the Custodian shall be liable to the Fund
for any loss or damage to the Fund caused by or resulting from the acts or
omissions of any Subcustodian to the extent that such acts or omissions
would be deemed to be negligence, gross negligence or willful misconduct
in accordance with the terms of the relevant subcustodian agreement under
the laws, circumstances and practices prevailing in the place where the
act or omission occurred. The liability of the Custodian in respect of the
countries and Subcustodians designated by the Custodian, from time to time
on the Global Custody Network Listing shall be subject to the additional
condition that the Custodian actually recovers such loss or damage from
the Subcustodian.
8.7 New Countries. 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 Subcustodian is authorized to act in order
that the Custodian shall, if it deems appropriate to do so, have
sufficient time to establish a subcustodial arrangement in accordance
herewith. In the event, the Custodian is unable to establish such
arrangements prior to the time the investment is to be acquired, the
Custodian is authorized to designate at its discretion a local safekeeping
agent, and the use of the local safekeeping agent shall be at the sole
risk of the Fund, and accordingly the Custodian shall be responsible to
the Fund for the actions of such agent if and only to the extent the
Custodian shall have recovered from such agent for any damages caused the
Fund by such agent.
9. Responsibility of the Custodian. In performing its duties and obligations
hereunder, the Custodian shall use reasonable care under the facts and
circumstances prevailing in the market where performance is effected. Subject to
the specific provisions of this Section, the Custodian shall be liable for any
direct damage incurred by the Fund in consequence of the Custodian's negligence,
bad faith or willful misconduct. In no event shall the Custodian be liable
hereunder for any special, indirect, punitive or consequential damages arising
out of, pursuant to or in connection with this Agreement even if the Custodian
has been advised of the possibility of such damages. It is agreed that the
Custodian shall have no duty to assess the risks inherent in the Fund's
Investments or to provide investment advice with respect to such Investments and
that the Fund as principal shall bear any risks attendant to particular
Investments such as failure of counterparty or issuer.
9.1 Limitations of Performance. The Custodian shall not be responsible
under this Agreement for any failure to perform its duties, and shall not
be liable hereunder for any loss or damage in association with such
failure to perform for or in consequence of the following causes:
9.1.1 Force Majeure. Force Majeure shall mean any circumstance or
event which is beyond the reasonable control of the Custodian, a
Subcustodian or any agent of the Custodian or a Subcustodian and
which adversely affects the performance by the Custodian of its
obligations hereunder, by the Subcustodian of its obligations under
its Subcustody Agreement or by any other Agent of the Custodian or
the Subcustodian, including any event caused by, arising out of or
involving (a) an act of God, (b) accident, fire, water or wind
damage or explosion, (c) any computer, system or other equipment
failure or malfunction caused by any computer virus or the
malfunction or failure of any communications medium, (d) any
interruption of the power supply or other utility service, (e) any
strike or other work stoppage, whether partial or total, (f) any
delay or disruption resulting from or reflecting the occurrence of
any Country or Sovereign Risk, (g) any disruption of, or suspension
of trading in, the securities, commodities or foreign exchange
markets, whether or not resulting from or reflecting the occurrence
of any Country or Sovereign Risk, (h) any encumbrance on the
transferability of a currency or a currency position on the actual
settlement date of a foreign exchange transaction, whether or not
resulting from or reflecting the occurrence of any Country or
Sovereign Risk, or (i) any other cause similarly beyond the
reasonable control of the Custodian.
9.1.2 Country Risk. Country Risk shall mean, with respect to the
acquisition, ownership, settlement or custody of Investments in a
jurisdiction, all risks relating to, or arising in consequence of,
systemic and markets factors affecting the acquisition, payment for
or ownership of Investments including (a) the prevalence of crime
and corruption, (b) the inaccuracy or unreliability of business and
financial information, (c) the instability or volatility of banking
and financial systems, or the absence or inadequacy of an
infrastructure to support such systems, (d) custody and settlement
infrastructure of the market in which such Investments are
transacted and held, (e) the acts, omissions and operation of any
Securities Depository, (f) the risk of the bankruptcy or insolvency
of banking agents, counterparties to cash and securities
transactions, registrars or transfer agents, and (g) the existence
of market conditions which prevent the orderly execution or
settlement of transactions or which affect the value of assets.
9.1.3 Sovereign Risk. Sovereign Risk shall mean, in respect of any
jurisdiction, including the United States of America, where
Investments are acquired or held hereunder or under a Subcustody
Agreement, (a) any act of war, terrorism, riot, insurrection or
civil commotion, (b) the imposition of any investment, repatriation
or exchange control restrictions by any Governmental Authority, (c)
the confiscation, expropriation or nationalization of any
Investments by any Governmental Authority, whether de facto or de
jure, (d) any devaluation or revaluation of the currency, (e) the
imposition of taxes, levies or other charges affecting Investments,
(f) any change in the Applicable Law, or (g) any other economic or
political risk incurred or experienced.
9.2. Limitations on Liability. The Custodian shall not be liable for any
loss, claim, damage or other liability arising from the following causes:
9.2.1 Failure of Third Parties. The failure of any third party
including: (a) any issuer of Investments or Book-Entry Agent or
other agent of an issuer; (b) any counterparty with respect to any
Investment, including any issuer of exchange-traded or other
futures, option, derivative or commodities contract; (c) failure of
an Investment Advisor, foreign custody manager or other agent of the
Fund; or (d) failure of other third parties similarly beyond the
control or choice of the Custodian.
9.2.2 Information Sources. The Custodian may rely upon information
received from issuers of Investments or agents of such issuers,
information received from Subcustodians and from other commercially
reasonable sources such as commercial data bases and the like, but
shall not be responsible for specific inaccuracies in such
information, provided that the Custodian has relied upon such
information in good faith, or for the failure of any commercially
reasonable information provider.
9.2.3 Reliance on Instruction. Action by the Custodian or the
Subcustodian in accordance with an Instruction, even when such
action conflicts with, or is contrary to any provision of, the
Fund's declaration of trust, certificate of incorporation or by-laws
or other constitutive document, or actions by the trustees,
directors or shareholders of the Fund or Applicable law pertaining
to the Fund or the Fund's Investments.
9.2.4 Restricted Securities. The limitations inherent in the rights,
transferability or similar investment characteristics of a given
Investment of the Fund.
10. Indemnification. The Fund hereby indemnifies the Custodian and each
Subcustodian, and their respective Agents, nominees and the partners, employees,
officers and directors, and agrees to hold each of them harmless from and
against all claims and liabilities, including counsel fees and taxes, incurred
or assessed against any of them in connection with the performance of this
Agreement and any Instruction and not attributable to their negligence, bad
faith or willful misconduct. If a Subcustodian or any other person indemnified
under the preceding sentence, gives written notice of claim to the Custodian,
the Custodian shall promptly give written notice to the Fund. Not more than
thirty days following the date of such notice, unless the Custodian shall be
liable under Section 8 hereof in respect of such claim, the Fund will pay the
amount of such claim or reimburse the Custodian for any payment made by the
Custodian in respect thereof.
11. Reports and Records. The Custodian shall:
11.1 create and maintain records relating to the performance of its
obligations under this Agreement;
11.2 make available to the Fund, its auditors, agents and employees, upon
reasonable request and during normal business hours of the Custodian, all
records maintained by the Custodian pursuant to Section 11.1 above,
subject, however, to all reasonable security requirements of the Custodian
then applicable to the records of its custody customers generally; and
11.3 make available to the Fund all Electronic Reports; it being
understood that the Custodian shall not be liable hereunder for the
inaccuracy or incompleteness thereof or for errors in any information
included therein.
11.4 The Fund shall examine all records, however produced or transmitted,
promptly upon receipt and notify the Custodian promptly of any discrepancy
or error. Unless the Fund delivers written notice of any such discrepancy
or error within a reasonable time after its receipt of the records, the
records shall be deemed to be true and accurate.
11.5 The Fund acknowledges that the Custodian obtains information on the
value of assets from outside sources which may be utilized in certain
reports made available to the Fund. The Custodian deems such sources to be
reliable but the Fund acknowledges and agrees that the Custodian does not
verify such information nor make any representations or warrantees as to
its accuracy or completeness and accordingly shall be without liability in
selecting and using such sources and furnishing such information.
12. Miscellaneous.
12.1 Powers of Attorney, etc. The Fund will promptly execute and deliver,
upon request, such proxies, powers of attorney or other instruments as may
be necessary or desirable for the Custodian to provide, or to cause any
Subcustodian to provide, custody services.
12.2 Entire Agreement; Amendment. This Agreement constitutes the entire
understanding and agreement of the parties hereto and supersedes any other
oral or written agreements heretofore in effect between the Fund and the
Custodian with respect to the subject matter hereof. No provision of this
Agreement may be amended or terminated except by a statement in writing
signed by the party against which enforcement of the amendment or
termination is sought, provided, however, that an Instruction shall,
whether or not such Instruction shall constitute a waiver, amendment or
modification for purposes hereof, be deemed to have been accepted by the
Custodian when it commences actions pursuant thereto or in accordance
therewith. In the event of a conflict between the terms of this Agreement
and the terms of a service level agreement or other operating agreement in
place between the parties from time to time, the terms of this Agreement
shall control.
12.3 Binding Effect; Assignment. This Agreement shall be binding upon and
shall inure to the benefit of the Custodian/Administrator and the Fund and
their successors and assignees, provided that the Fund may not assign this
Agreement without the prior written consent of the Custodian. Each party
agrees that only the parties to this Agreement and/or their successors in
interest shall have a right to enforce the terms of this Agreement.
Accordingly, no client of the Fund or other third party shall have any
rights under this Agreement and such rights are explicitly disclaimed by
the parties.
12.4 GOVERNING LAW, JURISDICTION AND VENUE. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAW PRINCIPLES OF SUCH
STATE. THE PARTIES HERETO IRREVOCABLY CONSENT TO THE EXCLUSIVE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE FEDERAL COURTS
LOCATED IN NEW YORK CITY. THE FUND IRREVOCABLY WAIVES ANY OBJECTION IT MAY
NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING
IN ANY OF THE AFORESAID COURTS AND ANY CLAIM THAT ANY SUCH ACTION OR
PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. FURTHERMORE, EACH
PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY RIGHT THAT IT MAY HAVE TO TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
12.5 Notices. Notices and other writings contemplated by this Agreement,
other than Instructions, shall be delivered (a) by hand, (b) by first
class registered or certified mail, postage prepaid, return receipt
requested, (c) by a nationally recognized overnight courier, or (d) by
facsimile transmission, provided that any notice or other writing sent by
facsimile transmission shall also be mailed, postage prepaid, to the party
to whom such notice is addressed. All such notices shall be addressed, as
follows:
If to the Fund: [
Attn: ]
Telephone: [ ]
Facsimile: [ ]
If to the Custodian: Xxxxx Brothers Xxxxxxxx & Co.
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn:
Telephone: (000) 000-0000
Facsimile: (617) 772-XXXX,
or such other address as the Fund or the Custodian may have designated in
writing to the other.
12.6 Headings. Paragraph headings included herein are for convenience of
reference only and shall not modify, define, expand or limit any of the
terms or provisions hereof.
12. 7 Severability. In the event any provision of this Agreement is
determined to be void or unenforceable, such determination shall not
affect the remainder of this Agreement, which shall continue to be in
force.
12.8 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 the Fund and the Custodian. A photocopy or telefax of the
Agreement shall be acceptable evidence of the existence of the Agreement
and the Custodian shall be protected in relying on the photocopy or
telefax until the Custodian has received the original of the Agreement.
12.9 Confidentiality. 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 or
obtaining 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 or to any bank examiner of the Custodian or any Subcustodian,
any Regulatory Authority, any auditor of the parties hereto, or by
judicial or administrative process or otherwise by Applicable Law.
12.10 Tape-recording. The Fund on behalf of itself and its Customers
authorizes the Custodian to tape record any and all telephonic or other
oral instructions given to the Custodian by or on behalf of the Fund,
including from any Authorized Person. This authorization will remain in
effect until and unless revoked by the Fund in writing. The Fund further
agrees to solicit valid written or other consent from any of its employees
with respect to telephone communications to the extent such consent is
required by applicable law.
12.11 Counsel/ Certified Public Accountant. In fulfilling its duties
hereunder, the Custodian shall be entitled to receive and act upon the
advice of (i) counsel and/or a certified public accountant regularly
retained by the Custodian in respect of such matters, (ii) counsel and/or
a certified public accountant for the Fund or (iii) such counsel or
certified public accountant as the Fund and the Custodian may agree upon,
with respect to all matters, and the Custodian shall be without liability
for any action reasonably taken or omitted pursuant to such advice.
12.12 Conflict. Nothing contained in this Agreement shall prevent the
Custodian and its associates from (i) dealing as a principal or an
intermediary in the sale, purchase or loan of the Fund's Investments to,
or from the Custodian or its associates; (ii) acting as a custodian, a
subcustodian, a trustee, an agent, securities dealer, an investment
manager or in any other capacity for any other client whose interests may
be adverse to the interest of the Fund; or (iii) buying, holding, lending,
and dealing in any way in any assets for the benefit of its own account,
or for the account of any other client whose interests may be adverse to
the Fund notwithstanding that the same or similar assets may be held or
dealt in by, or for the account of the Fund by the Custodian. The Fund
hereby voluntarily consents to, and waives any potential conflict of
interest between the Custodian and/or its associates and the Fund, and
agrees that:
(a) the Custodian's and/or its associates' engagement in any such
transaction shall not disqualify the Custodian from continuing to
perform as the custodian of the Fund under this Agreement;
(b) unless the transaction is effected with the Fund, the Custodian
and/or its associates shall not be under any duty to disclose any
information in connection with any such transaction to the Fund;
(c) the Custodian and/or its associates shall not be liable to
account to the Fund for any profits or benefits made or derived by
or in connection with any such transaction; and
(d) the Fund shall use all reasonable efforts to disclose this
provision, among other provisions in this Agreement, to its
shareholders.
13. Definitions. The following defined terms will have the respective meanings
set forth below.
13.1 Advance(s) shall mean any extension of credit by or through the
Custodian or by or through any Subcustodian and shall include, without
limitation, amounts due to the Custodian as the principal counterparty to
any foreign exchange transaction with the Fund as described in Section
7.4.2 hereof, or paid to third parties for account of the Fund or in
discharge of any expense, tax or other item payable by the Fund.
13.2 Advance Costs shall mean any Advance, interest on the Advance and any
related expenses, including without limitation any xxxx to market loss of
the Custodian or Subcustodian on any Investment to which Section 7.6.1
applies.
13.3 Agency Account(s) shall mean any deposit account opened on the books
of a Subcustodian or other banking institution in accordance with Section
7.1 hereof.
13.4 Agent(s) shall have the meaning set forth in the last sentence of
Section 6 hereof.
13.5 Applicable Law shall mean with respect to each jurisdiction, all (a)
laws, statutes, treaties, regulations, guidelines (or their equivalents);
(b) orders, interpretations, licenses and permits; and (c) judgments,
decrees, injunctions, writs, orders and similar actions by a court of
competent jurisdiction; compliance with which is required or customarily
observed in such jurisdiction.
13.6 Authorized Person(s) shall mean any person or entity authorized to
give Instructions on behalf of the Fund in accordance with Section 4.1
hereof.
13.7 Book-entry Agent(s) shall mean an entity acting as agent for the
issuer of Investments for purposes of recording ownership or similar
entitlement to Investments, including without limitation a transfer agent
or registrar.
13.8 Clearing Corporation shall mean any entity or system established for
purposes of providing securities settlement and movement and associated
functions for a given market(s).
13.9 Delegation Schedule shall mean any separate schedule entered into
between the Custodian and the Fund or its authorized representative with
respect to certain matters concerning the appointment and administration
of Subcustodians delegated to the Custodian pursuant to Rule 17f-5 under
the 1940 Act.
13.10 Electronic and Online Services Schedule shall mean any separate
agreement entered into between the Custodian and the Fund or its
authorized representative with respect to certain matters concerning
certain electronic and online services as described therein and as may be
made available from time to time by the Custodian to the Fund.
13.11 Electronic Reports shall mean any reports prepared by the Custodian
and remitted to the Fund or its authorized representative via the internet
or electronic mail.
13.12 Foreign Custody Manager shall mean the Fund's foreign custody
manager appointed pursuant to Rule 17f-5 of the 1940 Act.
13.13 Foreign Financial Regulatory Authority shall have the meaning given
by Section 2(a)(50) of the 0000 Xxx.
13.14 Funds Transfer Services Schedule shall mean any separate schedule
entered into between the Custodian and the Fund or its authorized
representative with respect to certain matters concerning the processing
of payment orders from Principal Accounts of the Fund.
13.15 Global Custody Network Listing shall mean the Countries and
Subcustodians approved by a Fund for Investments in non-U.S. Markets.
13.16 Instruction(s) shall have the meaning assigned in Section 4 hereof.
13.17 Investment Advisor shall mean any person or entity who is an
Authorized Person to give Instructions with respect to the investment and
reinvestment of the Fund's Investments.
13.18 Investment(s) shall mean any investment asset of the Fund, including
without limitation securities, bonds, notes, and debentures as well as
receivables, derivatives, contractual rights or entitlements and other
intangible assets, but shall not include any Principal Account.
13.19 Margin Account shall have the meaning set forth in Section 6.4
hereof.
13.20 Principal Account(s) shall mean deposit accounts of the Fund carried
on the books of BBH&Co. as principal in accordance with Section 7 hereof.
13.21 Safekeeping Account shall mean an account established on the books
of the Custodian or any Subcustodian for purposes of segregating the
interests of the Fund (or clients of the Custodian or Subcustodian) from
the assets of the Custodian or any Subcustodian.
13.22 Securities Depository shall mean a central or book entry system or
agency established under Applicable Law for purposes of recording the
ownership and/or entitlement to investment securities for a given market
and, if a foreign Securities Depository, that meets the definitional
requirements of Rule 17f-7 under the 1940 Act.
13.23 Subcustodian(s) shall mean each foreign bank appointed by the
Custodian pursuant to Section 8 hereof, but shall not include Securities
Depositories.
13.24 Tri-Party Agreement shall have the meaning set forth in Section 6.4
hereof.
13.25 1940 Act shall mean the Investment Company Act of 1940.
14. Compensation. Each Fund for its own account Fund agrees to pay to the
Custodian (a) a fee in an amount set forth in the fee letter between the Fund
and the Custodian in effect on the date hereof or as amended from time to time,
and (b) all out-of-pocket expenses incurred by the Custodian, including the fees
and expenses of all Subcustodians and other amounts paid by the Custodian to a
third party for account or benefit of the Fund, and payable from time to time.
Amounts payable by the Fund under and pursuant to this Section 14 shall be
payable by wire transfer to the Custodian at BBH&Co. in New York, New York.
15. Termination. This Agreement may be terminated by either party in
accordance with the provisions of this Section. The provisions of this Agreement
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.
15.1 Term, Notice and Effect. This Agreement shall continue in full force
and effect unless modified at the request of the Funds' boards of
directors at a meeting expected to be held in November 2009 or until
terminated by either party by written notice effective no sooner than
seventy-five (75) days following the date that notice to such effect shall
be delivered to the other party at its address set forth in Section 12.5
hereof. Notwithstanding the foregoing provisions, either party may
terminate this Agreement at any time (a) for cause, which is a material
breach of the Agreement not cured within 60 days, in which case
termination shall be effective upon written receipt of notice by the
non-terminating party, or (b) upon thirty (30) days written notice to the
other party in the event that either party is adjudged bankrupt or
insolvent, or there shall be commenced against such party a case under any
applicable bankruptcy, insolvency, or other similar law now or hereafter
in effect.
15.2 Notice and Succession. In the event a termination notice is given by
a party hereto, all reasonable costs and expenses associated with any
required systems, facilities, procedures, personnel, and other resourced
modifications as well as the movement of records and materials and the
conversion thereof shall be paid by the Fund for which Services shall
cease to be performed hereunder. Furthermore, to the extent that it
appears impracticable given the circumstances to effect an orderly
delivery of the necessary and appropriate records of BBH to a successor
within the time specified in the notice of termination as aforesaid, BBH
and the Fund agree that this Agreement shall remain in full force and
effect for such reasonable period as may be required to complete necessary
arrangements with a successor.
15.3 Successor Custodian. In the event of the appointment of a successor
custodian, it is agreed that the Investments of the Fund held by the
Custodian or any Subcustodian shall be delivered to the successor
custodian in accordance with reasonable Instructions. The Custodian agrees
to cooperate with the Fund in the execution of documents and performance
of other actions necessary or desirable in order to facilitate the
succession of the new custodian. If no successor custodian shall be
appointed, the Custodian shall in like manner transfer the Fund's
Investments in accordance with Instructions.
15.4 Delayed Succession. If no Instruction has been given as of the
effective date of termination, Custodian may at any time on or after such
termination date and upon ten (10) consecutive calendar days written
notice to the Fund either (a) deliver the Investments of the Fund held
hereunder to the Fund at the address designated for receipt of notices
hereunder; or (b) deliver any investments held hereunder to a bank or
trust company having a capitalization of $2,000,000 USD equivalent and
operating under the Applicable Law of the jurisdiction where such
Investments are located, such delivery to be at the risk of the Fund. In
the event that Investments or moneys of the Fund remain in the custody of
the Custodian or its Subcustodians after the date of termination owing to
the failure of the Fund to issue Instructions with respect to their
disposition or owing to the fact that such disposition could not be
accomplished in accordance with such Instructions despite diligent efforts
of the Custodian, the Custodian shall be entitled to compensation for its
services with respect to such Investments and moneys during such period as
the Custodian or its Subcustodians retain possession of such items and the
provisions of this Agreement shall remain in full force and effect until
disposition in accordance with this Section is accomplished.
16. Compliance Policies and Procedures. To assist the Fund in complying with
Rule 38a-1 of the 1940 Act, BBH&Co. represents that it has adopted written
policies and procedures reasonably designed to prevent violation of the federal
securities laws in fulfilling its obligations under the Agreement and that it
has in place a compliance program to monitor its compliance with those policies
and procedures. BBH&Co will upon request provide the Fund with information about
our compliance program as mutually agreed.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
duly executed as of the date first above written.
The undersigned acknowledges that (I/we) have received a copy of this document.
XXXXX BROTHERS XXXXXXXX & CO. The Fund
By: /s/ Xxxxxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxx
---------------------- -------------------
Name: Xxxxxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxx
Title: Managing Director Title: Secretary
Date: September 11, 2009 Date: September 11, 2009
Xxxxx Brothers Xxxxxxxx & Co. ("BBH&Co.") is a limited partnership organized
under the laws of the United States of America ("US") and is subject to the US
Treasury Regulations set forth under 00 XXX 000, et seq. BBH&Co. may not
establish any relationship with any Prohibited Person or Entity as such term is
defined under the regulations. No customer of BBH&Co. may be owned or controlled
by an entity or person: (i) that is listed in the Annex to, or is otherwise
subject to the provisions of Executive Order 13224, issued on September 24, 2001
("EO13224")
; (ii)
whose name appears on the United States Treasury Department's Office of Foreign
Assets Control ("OFAC") most current list of "Specifically Designated National
and Blocked Persons" (which list may be published from time to time in various
mediums including, but not limited to, the OFAC website; (iii) who commits,
threatens to commit or supports "terrorism", as such term is defined in EO13224;
or (iv) who is otherwise affiliated with any entity or person listed above (any
and all parties or persons described in clauses (i) through (iv) above are
herein referred to as a "Prohibited Person").
FUNDS TRANSFER SERVICES SCHEDULE TO CUSTODIAN AGREEMENT
1. Execution of Payment Orders. Xxxxx Brothers Xxxxxxxx & Co. (the Custodian) is
hereby instructed by the Fund to execute each payment order, whether denominated
in United States dollars or other applicable currencies, received by the
Custodian in the Fund's name as sender and authorized and confirmed by an
Authorized Person as defined in a Custodian Agreement dated as of September 14,
2009 by and between the Custodian and the Fund, as amended or restated from time
thereafter (the Agreement), provided that the Fund has sufficient available
funds on deposit in a Principal Account as defined in the Agreement and provided
that the order (i) is received by the Custodian in the manner specified in this
Funds Transfer Services Schedule or any amendment hereafter; (ii) complies with
any written instructions and restrictions of the Fund as set forth in this Funds
Transfer Services Schedule or any amendment hereafter; (iii) is authorized by
the Fund or is verified by the Custodian in compliance with a security procedure
set forth in Paragraph 2 below for verifying the authenticity of a funds
transfer communication sent to the Custodian in the name of the Fund or for the
detection of errors set forth in any such communication; and (iv) contains
sufficient data to enable the Custodian to process such transfer.
2. Security Procedure. The Fund hereby elects to use the procedure selected
below as its security procedure (the Security Procedure). The Security Procedure
will be used by the Custodian to verify the authenticity of a payment order or a
communication amending or canceling a payment order. The Custodian will act on
instructions received provided the instruction is authenticated by the Security
Procedure. The Fund agrees and acknowledges in connection with (i) the size,
type and frequency of payment orders normally issued or expected to be issued by
the Fund to the Custodian, (ii) all of the security procedures offered to the
Fund by the Custodian, and (iii) the usual security procedures used by customers
and receiving banks similarly situated, that authentication through the Security
Procedure shall be deemed commercially reasonable for the authentication of all
payment orders submitted to the Custodian. The Fund hereby elects (please choose
one) the following Security Procedure as described below:
[__] BBH WorldView(R) Payment Products. BIDS and BIDS Worldview Payment
Products, are on-line payment order authorization facilities with
built-in authentication procedures. The Custodian and the Fund shall
each be responsible for maintaining the confidentiality of passwords
or other codes to be used by them in connection with BIDS. The
Custodian will act on instructions received through BIDS without
duty of further confirmation unless the Fund notifies the Custodian
that its password is not secure.
[__] SWIFT. The Custodian and the Fund shall comply with SWIFT's
authentication procedures. The Custodian will act on instructions
received via SWIFT provided the instruction is authenticated by the
SWIFT system.
[__] Computer Transmission. The Custodian is able to accept transmissions
sent from the Fund's computer facilities to the Custodian's computer
facilities provided such transmissions are encrypted and digitally
certified or are otherwise authenticated in a reasonable manner
based on available technology. Such procedures shall be established
in an operating protocol between the Custodian and the Fund.
[__] Telefax Instructions. A payment order transmitted to the Custodian
by telefax transmission shall transmitted by the Fund to a telephone
number specified from time to time by the Custodian for such
purposes. If it detects no discrepancies, the Custodian will follow
one of the procedures below.
1. If the telefax requests a repetitive payment order, the
Custodian may call the Fund at its last known telephone
number, request to speak to the Fund or Authorized
Person, and confirm the authorization and the details of
the payment order (a Callback); or
2. If the telefax requests a non-repetitive order, the
Custodian will perform a Callback.
All faxes must be accompanied by a fax cover sheet which indicates
the sender's name, company name, telephone number, fax number,
number of pages, and number of transactions or instructions
attached.
[__] Telephonic. A telephonic payment order shall be called into the
Custodian at the telephone number designated from time to time by
the Custodian for that purpose. The caller shall identify
herself/himself as an Authorized Person. The Custodian shall obtain
the payment order data from the caller. The Custodian shall then:
1. If a telephonic repetitive payment order, the Custodian
may perform a Callback; or
2. If a telephonic non-repetitive payment order, the
Custodian will perform a Callback.
In the event the Fund chooses a procedure which is not a Security Procedure as
described above, the Fund agrees to be bound by any payment order (whether or
not authorized) issued in its name and accepted by the Custodian in compliance
with the procedure selected by the Fund.
3. Rejection of Payment Orders. The Custodian shall give the Fund timely
notice of the Custodian's rejection of a payment order. Such notice may be given
in writing or orally by telephone, each of which is hereby deemed commercially
reasonable. In the event the Custodian fails to execute a properly executable
payment order and fails to give the Fund notice of the Custodian's
non-execution, the Custodian shall be liable only for the Fund's actual damages
and only to the extent that such damages are recoverable under UCC 4A (as
defined in Paragraph 7 below). Notwithstanding anything in this Funds Transfer
Services Schedule and the Agreement to the contrary, the Custodian shall in no
event be liable for any consequential or special damages under this Funds
Transfer Services Schedule, whether or not such damages relate to services
covered by UCC 4A, even if the Custodian has been advised of the possibility of
such damages. Whenever compensation in the form of interest is payable by the
Custodian to the Fund pursuant to this Funds Transfer Services Schedule, such
compensation will be payable as specified in UCC 4A.
4. Cancellation of Payment Orders. The Fund may cancel a payment order but
the Custodian shall have no liability for the Custodian's failure to act on a
cancellation instruction unless the Custodian has received such cancellation
instruction at a time and in a manner affording the Custodian reasonable
opportunity to act prior to the Custodian's execution of the order. Any
cancellation shall be sent and confirmed in the manner set forth in Paragraph 2
above.
5. Responsibility for the Detection of Errors and Unauthorized Payment
Orders. Except as may be provided, the Custodian is not responsible for
detecting any Fund error contained in any payment order sent by the Fund to the
Custodian. In the event that the Fund's payment order to the Custodian either
(i) identifies the beneficiary by both a name and an identifying or bank account
number and the name and number identify different persons or entities, or (ii)
identifies any bank by both a name and an identifying number and the number
identifies a person or entity different from the bank identified by name,
execution of the payment order, payment to the beneficiary, cancellation of the
payment order or actions taken by any bank in respect of such payment order may
be made solely on the basis of the number. The Custodian shall not be liable for
interest on the amount of any payment order that was not authorized or was
erroneously executed unless the Fund so notifies the Custodian within thirty
(30) business days following the Fund's receipt of notice that such payment
order had been processed. If a payment order in the name of the Fund and
accepted by the Custodian was not authorized by the Fund, the liability of the
parties will be governed by the applicable provisions of UCC 4A.
6. Laws and Regulations. The rights and obligations of the Custodian and the
Fund with respect to any payment order executed pursuant to this Funds Transfer
Services Schedule will be governed by any applicable laws, regulations,
circulars and funds transfer system rules, the laws and regulations of the
United States of America and of other relevant countries including exchange
control regulations and limitations on dealings or other sanctions, and
including without limitation those sanctions imposed under the law of the United
States of America by the Office of Foreign Assets Control. Any taxes, fines,
costs, charges or fees imposed by relevant authorities on such transactions
shall be for the account of the Fund.
7. Miscellaneous. All accounts opened by the Fund or its authorized agents at
the Custodian subsequent to the date hereof shall be governed by this Funds
Transfer Schedule. All terms used in this Funds Transfer Services Schedule shall
have the meaning set forth in Article 4A of the Uniform Commercial Code as
currently in effect in the State of New York (UCC 4A) unless otherwise set forth
herein. The terms and conditions of this Funds Transfer Services Schedule are in
addition to, and do not modify or otherwise affect, the terms and conditions of
the Agreement and any other agreement or arrangement between the parties hereto.
8. Indemnification. The Custodian does not recommend the sending of
instructions by telefax or telephonic means as provided in Paragraph 2. BY
ELECTING TO SEND INSTRUCTIONS BY TELEFAX OR TELEPHONIC MEANS, THE FUND AGREES TO
INDEMNIFY THE CUSTODIAN AND ITS PARTNERS, OFFICERS AND EMPLOYEES FOR ALL LOSSES
THEREFROM.
_____________________________________________
OPTIONAL: The Custodian will perform a Callback if instructions are sent
by telefax or telephonic means as provided in Paragraph 2 above. THE FUND
MAY, AT ITS OWN RISK AND BY HEREBY AGREEING TO INDEMNIFY THE CUSTODIAN AND
ITS PARTNERS, OFFICERS AND EMPLOYEES FOR ALL LOSSES THEREFROM, ELECT TO
WAIVE A CALLBACK BY THE CUSTODIAN BY INITIALLING HERE:____
_____________________________________________
The undersigned acknowledges that (I/we) have received a copy of this document.
Accepted and agreed:
XXXXX BROTHERS XXXXXXXX & CO. The Fund
By: /s/ Xxxxxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxx
---------------------- -------------------
Name: Xxxxxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxx
Title: Managing Director Title: Secretary
Date: September 11, 2009 Date: September 11, 2009
ELECTRONIC AND ON-LINE SERVICES SCHEDULE
This Electronic and On-Line Services Schedule (this Schedule) to a Custodian
Agreement dated as of September 14, 2009 (as amended from time to time
hereafter, the Agreement) by and between Xxxxx Brothers Xxxxxxxx & Co. (we, us
our) and the Funds (as defined in the Custodian Agreement) (you, your), provides
general provisions governing your use of and access to the Services (as
hereinafter defined) provided to you by us via the Internet (at xxx.xxxxx.xxx or
such other URL as we may instruct you to use to access our products) and via a
direct dial-up connection between your computer and our computers, as of
September 14, 2009 (the Effective Date). Use of the Services constitutes
acceptance of the terms and conditions of this Schedule, any Appendices hereto,
the Terms and Conditions posted on our web site, and any terms and conditions
specifically governing a particular Service or our other products, which may be
set forth in the Agreement or in a separate related agreement (collectively, the
Related Agreements).
1. General Terms.
You will be granted access to our suite of online products, which may
include, but shall not be limited to the following services via the
Internet or dial-up connection (each separate service is a Service;
collectively referred to as the Services):
1.1. BBH WorldView(R), a system for effectuating securities and fund
trade instruction and execution, processing and handling
instructions, and for the input and retrieval of other information;
1.2. F/X WorldView, a system for executing foreign exchange trades;
1.3. Fund WorldView, a system for receiving fund and prospectus
information;
1.4. BBHCOnnect, a system for placing securities trade instructions and
following the status and detail of trades;
1.5. ActionViewSM, a system for receiving certain corporate action
information;
1.6. Risk View, an interactive portfolio risk analysis tool; and
1.7. Such other services as we shall from time to time offer.
2. Security / Passwords.
2.1. A digital certificate and/or an encryption key may be required to
access certain Services. You may apply for a digital certificate
and/or an encryption key by following the procedures set forth at
xxxx://xxx.xxx.xxx/xxxxx/. You also will need an identification code
(ID) and password(s) (Password) to access the Services.
2.2. You agree to safeguard your digital certificate and/or encryption
key, ID, and Password and not to give or make available,
intentionally or otherwise, your digital certificate, ID, and/or
Password to any unauthorized person. You must immediately notify us
in writing if you believe that your digital certificate and/or
encryption key, Password, or ID has been compromised or if you
suspect unauthorized access to your account by means of the Services
or otherwise, or when a person to whom a digital certificate and/or
an encryption key, Password, or ID has been assigned leaves or is no
longer permitted to access the Services.
2.3. We will not be responsible for any breach of security, or for any
unauthorized trading or theft by any third party, caused by your
failure (be it intentional, unintentional, or negligent) to maintain
the confidentiality of your ID and/or Password and/or the security
of your digital certificate and/or encryption key.
3. Instructions.
3.1. Proper instructions under this Schedule shall be provided as
designated in the Related Agreements (Instructions).
3.2. The following additional provisions apply to Instructions provided
via the Services:
a. Instructions sent by electronic mail will not be accepted or
acted upon.
b. You authorize us to act upon Instructions received through the
Services utilizing your digital certiID, and/or Password as
though they were duly authorized written instructions, without
any duty of verification or inquiry on our part, and agree to
hold us harmless for any losses you experience as a result.
c. From time to time, the temporary unavailability of third party
telecommunications or computer systems required by the
Services may result in a delay in processing Instructions. In
such an event, we shall not be liable to you or any third
party for any liabilities, losses, claims, costs, damages,
penalties, fines, obligations, or expenses of any kind
(including without limitation, reasonable attorneys',
accountants', consultants', or experts' fees and
disbursements) that you experience due to such a delay.
4. Electronic Documents.
We may make periodic statements, disclosures, notices, and other documents
available to you electronically, and, subject to any delivery and receipt
verification procedures required by law, you agree to receive such
documents electronically and to check the statements for accuracy. If you
believe any such statement contains incorrect information, you must follow
the procedures set forth in the Related Agreement(s).
5. Malicious Code.
You understand and agree that you will be responsible for the introduction
(by you, your employees, agents, or representatives) into the Services,
whether intentional or unintentional, of (i) any virus or other code,
program, or sub-program that damages or interferes with the operation of
the computer system containing the code, program or sub-program, or halts,
disables, or interferes with the operation of the Services themselves; or
(ii) any device, method, or token whose knowing or intended purpose is to
permit any person to circumvent the normal security of the Services or the
system containing the software code for the Services (Malicious Code). You
agree to take all necessary actions and precautions to prevent the
introduction and proliferation of any Malicious Code into those systems
that interact with the Services.
6. Indemnification.
For avoidance of doubt, you hereby agree that the provisions in the
Related Agreement(s) related to your indemnification of us and any
limitations on our liability and responsibilities to you shall be
applicable to this Agreement, and are hereby expressly incorporated
herein. You agree that the Services are comprised of telecommunications
and computer systems, and that it is possible that Instructions,
information, transactions, or account reports might be added to, changed,
or omitted by electronic or programming malfunction, unauthorized access,
or other failure of the systems which comprise the Services, despite the
security features that have been designed into the Services. You agree
that we will not be liable for any action taken or not taken in complying
with the terms of this Schedule, except for our negligence bad faith or
willful misconduct. The provisions of this paragraph shall survive the
termination of this Schedule and the Related Agreements.
7. Payment.
You may be charged for services hereunder as set forth in a fee schedule
from time to time agreed by us.
8. Term/Termination.
8.1. This Schedule is effective as of the date you sign it or first use
the Services, whichever is first, and continues in effect until such
time as either you or we terminate the Schedule in accordance with
this Section 8 and/or until your off-line use of the Services is
terminated.
8.2. We may terminate your access to the Services at any time, for any
reason, with five (5) business days prior notice; provided that we
may terminate your access to the Services with no prior notice (i)
if your account with us is closed, (ii) if you fail to comply with
any of the terms of this Agreement, (iii) if we believe that your
continued access to the Services poses a security risk, or (iv) if
we believe that you are violating or have violated applicable laws,
and we will not be liable for any loss you may experience as a
result of such termination. You may terminate your access to the
Services at any time by giving us ten (10) business days notice.
Upon termination, we will cancel all your Passwords and IDs and any
in-process or pending Instructions will be carried out or cancelled,
at our sole discretion.
9. Miscellaneous.
9.1. Notices. All notices, requests, and demands (other than routine
operational communications, such as Instructions) shall be in such
form and effect as provided in the Related Agreement(s).
9.2. Inconsistent Provisions. Each Service may be governed by separate
terms and conditions in addition to this Schedule and the Related
Agreement(s). Except where specifically provided to the contrary in
this Schedule, in the event that such separate terms and conditions
conflict with this Schedule and the Related Agreement(s), the
provisions of this Schedule shall prevail to the extent this
Schedule applies to the transaction in question.
9.3. Binding Effect; Assignment; Severability. This Schedule shall be
binding on you, your employees, officers and agents. We may assign
or delegate our rights and duties under this Schedule at any time
without notice to you. Your rights under this Schedule may not be
assigned without our prior written consent. In the event that any
provision of this Schedule conflicts with the law under which this
Schedule is to be construed or if any such provision is held invalid
or unenforceable by a court with jurisdiction over you and us, such
provision shall be deemed to be restated to effectuate as nearly as
possible the purposes of the Schedule in accordance with applicable
law. The remaining provisions of this Schedule and the application
of the challenged provision to persons or circumstances other than
those as to which it is invalid or unenforceable shall not be
affected thereby, and each such provision shall be valid and
enforceable to the full extent permitted by law.
9.4. Choice of Law; Jury Trial. This Schedule shall be governed by and
construed, and the legal relations between the parties shall be
determined, in accordance with the laws of the State of New York,
without giving effect to the principles of conflicts of laws. Each
party agrees to waive its right to trial by jury in any action or
proceeding based upon or related to this Agreement. The parties
agree that all actions and proceedings based upon or relating to
this Schedule shall be litigated exclusively in the federal and
state courts located within New York City, New York.
The undersigned acknowledges that (I/we) have received a copy of this document.
[Fund] ("you")
By: ____________________________________________
Title: ____________________________________________
Date: ____________________________________________
17f-5 DELEGATION SCHEDULE
By its execution of this Delegation Schedule dated as of _____________, 2009,
BBH MASTER TRUST, a management investment company registered with the Securities
and Exchange Commission (the Commission) under the Investment Company Act of
1940, as amended (the 1940 Act), acting through its Board of Directors/Trustees
or its duly appointed representative (the Fund), hereby appoints XXXXX BROTHERS
XXXXXXXX & CO., a New York limited partnership with an office in Boston,
Massachusetts (the Delegate) as its delegate to perform certain functions with
respect to the custody of Fund's Assets outside the United States.
1. Maintenance of Fund's Assets Abroad. The Fund, acting through its Board or
its duly authorized representative, hereby instructs the Delegate pursuant to
the terms of the Custodian Agreement dated as of the date hereof executed by and
between the Fund and the Delegate (the Custodian Agreement) to place and
maintain the Fund's Assets in countries outside the United States in accordance
with Instructions received from the Fund's Investment Advisor. Such instruction
shall constitute an Instruction under the terms of the Custodian Agreement. The
Fund acknowledges that (a) the Delegate shall perform services hereunder only
with respect to the countries where it accepts delegation as Foreign Custody
Manager as indicated on the Delegate's Global Custody Network Listing; (b)
depending on conditions in the particular country, advance notice may be
required before the Delegate shall be able to perform its duties hereunder in or
with respect to such country (such advance notice to be reasonable in light of
the specific facts and circumstances attendant to performance of duties in such
country); and (c) nothing in this Delegation Schedule shall require the Delegate
to provide delegated or custodial services in any country, and there may from
time to time be countries as to which the Delegate determines it will not
provide delegation services.
2. Delegation. Pursuant to the provisions of Rule 17f-5 under the 1940 Act as
amended, the Board hereby delegates to the Delegate, and the Delegate hereby
accepts such delegation and agrees to perform only those duties set forth in
this Delegation Schedule concerning the safekeeping of the Fund's Assets in each
of the countries as to which it acts as the Board's delegate. The Delegate is
hereby authorized to take such actions on behalf of or in the name of the Fund
as are reasonably required to discharge its duties under this Delegation
Schedule, including, without limitation, to cause the Fund's Assets to be placed
with a particular Eligible Foreign Custodian in accordance herewith. The Fund
confirms to the Delegate that the Fund or its Investment Adviser has considered
the Sovereign Risk and prevailing Country Risk as part of its continuing
investment decision process, including such factors as may be reasonably related
to the systemic risk of maintaining the Fund's Assets in a particular country,
including, but not limited to, financial infrastructure, prevailing custody and
settlement systems and practices (including the use of any Securities Depository
in the context of information provided by the Custodian in the performance of
its duties as required under Rule 17f-7 and the terms of the Custodian Agreement
governing such duties), and the laws relating to the safekeeping and recovery of
the Fund's Assets held in custody pursuant to the terms of the Custodian
Agreement.
3. Selection of Eligible Foreign Custodian and Contract Administration. The
Delegate shall perform the following duties with respect to the selection of
Eligible Foreign Custodians and administration of certain contracts governing
the Fund's foreign custodial arrangements:
(a) Selection of Eligible Foreign Custodian. The Delegate shall place and
maintain the Fund's Assets with an Eligible Foreign Custodian, provided
that the Delegate shall have determined that the Fund's Assets will be
subject to reasonable care based on the standards applicable to custodians
in the relevant market after considering factors relevant to the
safekeeping of such assets including without limitation:
(i) The Eligible Foreign Custodian's practices, procedures, and
internal controls, including, but not limited to, the physical
protections available for certificated securities (if applicable),
the controls and procedures for dealing with any Securities
Depository, the method of keeping custodial records, and the
security and data protection practices;
(ii) Whether the Eligible Foreign Custodian has the requisite
financial strength to provide reasonable care for the Fund's Assets;
(iii) The Eligible Foreign Custodian's general reputation and
standing; and
(iv) Whether the Fund will have jurisdiction over and be able to
enforce judgments against the Eligible Foreign Custodian, such as by
virtue of the existence of any offices of such Eligible Foreign
Custodian in the United States or such Eligible Foreign Custodian's
appointment of an agent for service of process in the United States
or consent to jurisdiction in the United States.
The Delegate shall be required to make the foregoing determination to the
best of its knowledge and belief based only on information reasonably
available to it.
(b) Contract Administration. The Delegate shall cause that the foreign
custody arrangements with an Eligible Foreign Custodian shall be governed
by a written contract that the Delegate has determined will provide
reasonable care for Fund assets based on the standards applicable to
custodians in the relevant market. Each such contract shall, except as set
forth in the last paragraph of this subsection (b), include provisions
that provide:
(i) For indemnification or insurance arrangements (or any
combination of the foregoing) such that the Fund will be adequately
protected against the risk of loss of assets held in accordance with
such contract;
(ii) That the Fund's Assets will not be subject to any right,
charge, security interest, lien or claim of any kind in favor of the
Eligible Foreign Custodian or its creditors except a claim of
payment for their safe custody or administration or, in the case of
cash deposits, liens or rights in favor of creditors of such
Custodian arising under bankruptcy, insolvency or similar laws;
(iii) That beneficial ownership of the Fund's Assets will be freely
transferable without the payment of money or value other than for
safe custody or administration;
(iv) That adequate records will be maintained identifying the Fund's
Assets as belonging to the Fund or as being held by a third party
for the benefit of the Fund;
(v) That the Fund's independent public accountants will be given
access to those records described in (iv) above or confirmation of
the contents of such records; and
(vi) That the Delegate will receive sufficient and timely periodic
reports with respect to the safekeeping of the Fund's Assets,
including, but not limited to, notification of any transfer to or
from the Fund's account or a third party account containing the
Fund's Assets.
Such contract may contain, in lieu of any or all of the provisions
specified in this Section 3(b), such other provisions that the Delegate
determines will provide, in their entirety, the same or a greater level of
care and protection for the Fund's Assets as the specified provisions, in
their entirety.
(c) Limitation to Delegated Selection. Notwithstanding anything in this
Delegation Schedule to the contrary, the duties under this Section 3 shall
apply only to Eligible Foreign Custodians selected by the Delegate and
shall not apply to Securities Depositories or to any Eligible Foreign
Custodian that the Delegate is directed to use pursuant to Section 7 of
this Delegation Schedule.
4. Monitoring. The Delegate shall establish a system to monitor at reasonable
intervals (but at least annually) the appropriateness of maintaining the Fund's
Assets with each Eligible Foreign Custodian that has been selected by the
Delegate pursuant to Section 3 of this Delegation Schedule. The Delegate shall
monitor the continuing appropriateness of placement of the Fund's Assets in
accordance with the criteria established under Section 3(a) of this Delegation
Schedule. The Delegate shall monitor the continuing appropriateness of the
contract governing the Fund's arrangements in accordance with the criteria
established under Section 3(b) of this Delegation Schedule.
5. Reporting. At least annually and more frequently as mutually agreed
between the parties, the Delegate shall provide to the Board written reports
specifying placement of the Fund's Assets with each Eligible Foreign Custodian
selected by the Delegate pursuant to Section 3 of this Delegation Schedule and
shall promptly report on any material changes to such foreign custody
arrangements. Delegate will prepare such a report with respect to any Eligible
Foreign Custodian that the Delegate has been instructed to use pursuant to
Section 7 of this Delegation Schedule only to the extent specifically agreed
with respect to the particular situation.
6. Withdrawal of Fund's Assets. If the Delegate determines that an
arrangement with a specific Eligible Foreign Custodian selected by the Delegate
under Section 3 of this Delegation Schedule no longer meets the requirements of
said Section, Delegate shall withdraw the Fund's Assets from the non-complying
arrangement as soon as reasonably practicable; provided, however, that if in the
reasonable judgment of the Delegate, such withdrawal would require liquidation
of any of the Fund's Assets or would materially impair the liquidity, value or
other investment characteristics of the Fund's Assets, it shall be the duty of
the Delegate to provide information regarding the particular circumstances and
to act only in accordance with Instructions of the Fund or its Investment
Advisor with respect to such liquidation or other withdrawal.
7. Direction as to Eligible Foreign Custodian. Notwithstanding this
Delegation Schedule, the Fund, acting through its Board, its Investment Advisor
or its other Authorized Representative, may direct the Delegate to place and
maintain the Fund's Assets with a particular Eligible Foreign Custodian,
including without limitation with respect to investment in countries as to which
the Custodian will not provide delegation services. In such event, the Delegate
shall be entitled to rely on any such instruction as an Instruction under the
terms of the Custodian Agreement and shall have no duties under this Delegation
Schedule with respect to such arrangement save those that it may undertake
specifically in writing with respect to each particular instance.
8. Standard of Care. In carrying out its duties under this Delegation
Schedule, the Delegate agrees to exercise reasonable care, prudence and
diligence such as a person having responsibility for safekeeping the Fund's
Assets would exercise.
9. Representations. The Delegate hereby represents and warrants that it is a
U.S. Bank and that this Delegation Schedule has been duly authorized, executed
and delivered by the Delegate and is a legal, valid and binding agreement of the
Delegate.
The Fund hereby represents and warrants that its Board of Directors has
determined that it is reasonable to rely on the Delegate to perform the
delegated responsibilities provided for herein and that this Delegation Schedule
has been duly authorized, executed and delivered by the Fund and is a legal,
valid and binding agreement of the Fund.
10. Effectiveness; termination. This Delegation Schedule shall be effective as
of the date on which this Delegation Schedule shall have been accepted by the
Delegate, as indicated by the date set forth below the Delegate's signature.
This Delegation Schedule may be terminated at any time, without penalty, by
written notice from the terminating party to the non-terminating party. Such
termination shall be effective on the 30th calendar day following the date on
which the non-terminating party shall receive the foregoing notice. The
foregoing to the contrary notwithstanding, this Delegation Schedule shall be
deemed to have been terminated concurrently with the termination of the
Custodian Agreement.
11. Notices. Notices and other communications under this Delegation Schedule
are to be made in accordance with the arrangements designated for such purpose
under the Custodian Agreement unless otherwise indicated in a writing
referencing this Delegation Schedule and executed by both parties.
12. Definitions. Capitalized terms not otherwise defined in this Delegation
Schedule have the following meanings:
a. Country Risk - shall have the meaning set forth in Section [ ] of the
Custodian Agreement.
b. Eligible Foreign Custodian - shall have the meaning set forth in Rule
17f-5(a)(1) of the 1940 Act and shall also include a U.S. Bank.
c. Fund's Assets - shall mean any of the Fund's investments (including
foreign currencies) for which the primary market is outside the United
States, and such cash and cash equivalents as are reasonably necessary to
effect the Fund's transactions in such investments.
d. Instructions - shall have the meaning set forth in the Custodian
Agreement.
e. Securities Depository - shall have the meaning set forth in Rule 17f-7
of the 1940 Act.
f. Sovereign Risk - shall have the meaning set forth in Section [6.3] of
the Custodian Agreement.
g . U.S. Bank - shall mean a bank which qualifies to serve as a custodian
of assets of investment companies under Section 17(f) of the 1940 Act.
13. Governing Law and Jurisdiction. This Delegation Schedule shall be
construed in accordance with the laws of the State of New York. The parties
hereby submit to the exclusive jurisdiction of the Federal courts sitting in the
State of New York or the Commonwealth of Massachusetts or of the state courts of
either such State or such Commonwealth.
14. Fees. Delegate shall perform its functions under this Delegation Schedule
for the compensation determined under the Custodian Agreement.
15. Integration. This Delegation Schedule sets forth all of the Delegate's
duties with respect to the selection and monitoring of Eligible Foreign
Custodians, the administration of contracts with Eligible Foreign Custodians,
the withdrawal of assets from Eligible Foreign Custodians and the issuance of
reports in connection with such duties. The terms of the Custodian Agreement
shall apply generally as to matters not expressly covered in this Delegation
Schedule, including dealings with the Eligible Foreign Custodians in the course
of discharge of the Delegate's obligations under the Custodian Agreement.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
duly executed as of the date first above written.
The undersigned acknowledges that (I/we) have received a copy of this document.
XXXXX BROTHERS XXXXXXXX & CO. [FUND]
By: /s/ Xxxxxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxx
---------------------- -------------------
Name: Xxxxxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxx
Title: Managing Director Title: Secretary
Date: September 11, 2009 Date: September 11, 2009
Fund Schedule
AllianceBernstein High Income Fund
AllianceBernstein Global Real Estate Investment Fund
AllianceBernstein Global Growth Fund
AllianceBernstein Global High Income Fund
AllianceBernstein International Growth Fund
AllianceBernstein Diversified Yield Fund
AllianceBernstein Greater China '97 Fund
The Spain Fund
AllianceBernstein Global Bond Fund
