FOR FUND/PLAN CLIENTS ONLY
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(2/3/94)
U.S. INVESTMENT COMPANY
CUSTODIAL SERVICES AGREEMENT
CUSTODIAL SERVICES AGREEMENT dated as of August, 1994 among CITIBANK, N.A.,
a national banking association having an office at 000 Xxxx Xxxxxx, Xxx Xxxx Xxx
Xxxx 00000 and acting through such office in New York (the "Bank"), CITICORP, a
corporation organized under the laws of the State of Delaware, having an office
at Citicorp Center, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx Xxx Xxxx 00000 and XXXXXXXX
INTERNATIONAL FUNDS (a Business Trust organized under the laws of Delaware)
having an office at 000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxxxx, Xxxxxxxxxx
00000. (the "Fund").
W I T N E S S E T H:
THAT WHEREAS, the Fund represents that it is a management investment
company registered under the Investment Company Act of 1940, as amended (the
"Investment Company Act"); and
WHEREAS, the Fund further represents that it is duly incorporated,
organized or associated and in good standing under the laws of its state of
incorporation, organization or association and the consummation of transactions
contemplated hereby or directed by it hereunder will not violate any applicable
laws, regulations or orders; and
WHEREAS, the Fund represents that it is authorized to (a) open and maintain
one or more custody accounts (collectively, the "Custody Account") with the Bank
to hold certain property ("Property"), including but not limited to stocks,
bonds or other securities ("Securities"), cash and other property owned or held
by the Fund, (b) enter into this Agreement and (c) direct all actions and
transactions contemplated hereunder; and
WHEREAS, on June 12, 1992, the Securities and Exchange Commission issued an
order (the "Exemptive Order") which, among other things, exempts certain
indirect subsidiaries of Citicorp (the "Exempt Subsidiaries") from the
shareholders' equity requirements of Rule 17f-5 promulgated under the Investment
Company Act; and
WHEREAS, the Fund represents that by separate agreement between Fund/Plan
Services, Inc. ("Fund/Plan") and the Fund, Fund/Plan (a) has agreed to perform
certain administrative functions which may include the functions of
administrator, transfer agent and accounting services agent and (b) has been
appointed by the Fund to act as its agent in respect of the transactions
contemplated in this Agreement; and
WHEREAS, the Fund represents that (a) Fund/Plan has agreed to act as Fund's
agent in respect of the transactions contemplated in this Agreement and (b) the
Bank is authorized and directed to rely upon and follow directions and
instructions given by Fund/Plan, the Fund's agent, in respect of transactions
contemplated in the Agreement.
NOW, THEREFORE, in consideration of the premises and of the agreements
hereinafter set forth, the parties hereby agree as follows:
1. APPOINTMENT AND ACCEPTANCE
The Fund hereby appoints the Bank as custodian of the Property and as
its agent hereunder, and the Bank agrees to act as such upon the terms
and conditions hereinafter provided. The Fund hereby directs the Bank to
recognize Fund/Plan as its agent and to follow Fund/Plan's instructions
and directions in respect of the Property.
2. DELIVERY; SAFEKEEPING
The Fund has heretofore delivered, or will deliver or cause to be
delivered, Property to the Bank, which Property the Bank agrees to keep
safely as custodian for the Fund. The Bank shall not surrender
possession of Property except upon properly authorized Instructions (as
hereinafter defined) of the Fund or as may be required by due process of
applicable law.
3. IDENTIFICATION AND SEGREGATION OF ASSETS
With respect to Property in the Custody Account:
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(A) Except as otherwise provided in this Agreement, the Bank will
separately identify on its books as belonging to the Fund and, to the
extent practicable, segregate all Property held pursuant to this
Agreement by the Bank or any other entity authorized to hold Property in
accordance with Section 6 or 7 hereof; and
(B) The Bank shall supply to the Fund, addressed care of its agent,
Fund/Plan, from time to time as mutually agreed upon a written statement
with respect to all of the Property in the Custody Account. In the event
that the Fund, acting through its agent, Fund/Plan, does not inform the
Bank in writing of any exceptions or objections within thirty (30) days
after receipt of such statement, the Fund shall be deemed to have
approved such statement.
4. STANDARD OF CARE
(A) The Bank shall exercise the same standard of care that it exercises
over its own assets in the safekeeping, handling, servicing, and
disposition of the Property in accordance with this Agreement. The Bank
will exercise the due care expected of a professional custodian for hire
with respect to the Property in its possession or control.
(B) The Bank shall be responsible for the acts or omissions of any
Exempt Subsidiary acting as a foreign subcustodian pursuant to the
Exemptive Order or any subsequent exemptive order issued by the
Securities and Exchange Commission to the same extent as if the act or
omission of such Exempt Subsidiary were that of the Bank.
(C) Except as otherwise provided above, the Bank shall use reasonable
care in selecting, and shall be responsible only for the proper
selection of, any foreign subcustodian or foreign depository; provided,
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however, that the Bank shall have no responsibility for the selection of
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foreign depositories if under the circumstances existing the foreign
depository is the sole depository of securities in a specific
jurisdiction.
(D) The Bank's delegation of duties to an Exempt Subsidiary shall not
relieve the Bank of any responsibility to the Fund for any loss due to
such delegation, except such losses or damages which may result from (i)
political risk, including, but not limited to losses resulting from
exchange control restrictions, confiscation, expropriation,
nationalization, insurrection, civil strife or armed hostilities and
(ii) other risk of loss for which neither the Bank nor any foreign
subcustodian would be liable under Rule 17f-5 promulgated under the
Investment Company Act.
(E) In the event the Fund enters into triparty repurchase agreements
pursuant to which collateral therefor is to be held by a custodian other
than the Bank and the Fund instructs the Bank to deliver Property to
such custodian, the Bank shall be under no duty to determine whether
such custodian satisfies the requirements of Section 17 of the
Investment Company Act or the Rules promulgated thereunder. Citibank
shall have no further duties or obligations under this Agreement with
respect to such Property.
(F) The Bank is not under any duty to supervise the investments of the
Fund, or to advise or make any recommendation to the Fund with respect
to the purchase or sale of any of the Securities or the investment of
any cash. The Fund shall have the sole and exclusive responsibility for
investment of Property held hereunder.
5. PERFORMANCE BY THE BANK
(A) General
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The Bank's performance of its duties hereunder and the day-to-day
operations of the Custody Account shall be in accordance with written
service standards furnished to the Fund, care of the Fund's agent,
Fund/Plan, by the Bank from time to time. Such service standards, as
amended from time to time, are incorporated herein by reference.
(B) Receipt, Delivery and Disposal of Securities
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The Bank shall, or shall instruct any other entity authorized to hold
Property in accordance with Section 6 or 7 hereof to, receive or deliver
Securities and credit or debit the Fund's account, in accordance with
properly authorized Instructions from the Fund. The Bank or such entity
shall also receive in custody all stock dividends, rights and similar
securities issued in connection with Securities held hereunder, shall
surrender for payment, in a timely manner, all items maturing or called
for redemption and shall take such other action as the Fund may direct
in properly authorized Instructions.
(C) Registration
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Securities held hereunder may be registered in the name of the Bank, any
entity authorized to hold Property in accordance with Section 6 or 7
hereof, or a nominee of the Bank or any such authorized entity, and the
Fund shall be informed upon request of all such registrations.
Securities in registered form will be transferred upon request of the
Fund into such names or registrations as it may specify in properly
authorized Instructions.
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(D) Cash Accounts
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(i) All cash received or held by the Bank or by any entity
authorized to hold Property in accordance with Section 7 hereof as
interest, dividends, proceeds from transfer, and other payments for or
with respect to the Securities shall be (x) held in a cash account in
accordance with properly authorized Instructions received by the Bank or
such entity, or (y) if specified in the Fund's Instructions, converted
to or from U.S. dollars and remitted to the Fund. The Fund shall bear
any foreign exchange risk in connection with any such conversion. In
effecting any currency conversions hereunder, the Bank or such entity
may use any methods or agencies as it may see fit including the Bank's
or such entity's own facilities at customary rates.
(ii) The Fund agrees, with respect to all payments for purchases of
Securities to be deposited in the Custody Account, that funds for
settlement will be on deposit by the settlement date at the location of
settlement, in good available funds and in the currency of settlement.
The Fund acknowledges that nothing in this Agreement shall obligate the
Bank to extend credit, grant financial accommodation or otherwise
advance moneys to the Fund for the purpose of making any payments for
purchases or part thereof or otherwise carrying out any Instructions.
(E) Reports
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(i) If the Bank has in place a system for providing
telecommunication access or other means of electronic access by
customers to the Bank's reporting system for Property in the Custody
Account, then, at the Fund's election, the Bank shall provide the Fund
with such instructions and passwords as may be necessary in order for
the Fund to have such electronic access through the Fund's terminal
device. Such electronic access shall be restricted to information
relating to the Custody Account. If electronic access to such reporting
system is requested by the Fund, the Fund agrees to assume full
responsibility for the consequences of such use, including any misuse or
unauthorized use of the terminal device, instructions or passwords
referred to above, and agrees to defend and indemnify the Bank and hold
the Bank harmless from and against any and all liabilities, losses,
damages, costs, counsel fees, and other expenses of every nature
suffered or incurred by the Bank by reason of or in connection with such
use by the Fund or others of such terminal device, unless such
liabilities, losses, damages, costs, counsel fees and other expenses can
be shown to be the result of negligent or wrongful acts of the Bank, the
Bank's employees or the Bank's agents. Further, in the event the Fund
elects to have electronic access, the Bank shall provide the Fund on
each business day a report of the preceding business day's transactions
relating to the Custody Account and of the closing or net balances of
each business day. If the Fund does not choose to have electronic
access, the Bank shall provide the Fund with such reports of
transactions in the Custody Account by such means as may be mutually
agreed upon.
(ii) The Bank agrees to use reasonable efforts to furnish the Fund
with such information regarding Property held hereunder as the Fund may
reasonably request in connection with its complying with requests of any
regulatory authorities having jurisdiction over the Fund.
(iii) The Bank shall also, subject to restrictions under applicable
law, seek to obtain from any entity with which the Bank maintains the
physical possession of any of the Property in the Custody Account
records of such entity relating to the Property in the Custody Account
as may be required by the Fund or its agents in connection with an
internal examination by the Fund of its own affairs. Upon a reasonable
request from the Fund, the Bank shall use its best efforts to furnish to
the Fund reports (or portions thereof) of the external auditors of each
such entity relating directly to such entity's system of internal
accounting controls applicable to its duties under its agreement with
the Bank.
(F) Access during the Bank's regular banking hours and upon receipt of
reasonable notice from the Fund, any officer or employee of the Fund,
any independent accountant(s) selected by the Fund and any person
designated by any regulatory authority having jurisdiction over the Fund
shall be entitled to examine on the Bank's premises, Property held by
the Bank on its premises and the Bank's records regarding Property held
hereunder deposited with entities authorized to hold Property in
accordance with Section 6 or 7 hereof, but only upon the Fund's
furnishing the Bank with properly authorized written Instructions to
that effect, provided that such examination shall be consistent with the
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Bank's obligations of confidentiality to other parties. The Bank's costs
and expenses in facilitating such examinations shall be borne by the
Fund, provided that such costs and expenses shall not be deemed to
examination shall be consistent with the Bank's obligations of
confidentiality to other parties. The Bank's costs and expenses in
facilitating such examinations shall be borne by the Fund, provided that
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such costs and expenses shall not be deemed to include the Bank's costs
in providing to the Fund: (i) the "single audit report" of the
independent certified public accountants engaged by the Bank and (ii)
such reports and documents as this Agreement contemplates that the Bank
shall furnish routinely to the Fund.
(G) Voting and other Action
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(i) The Bank will transmit to the Fund upon receipt, and will
instruct any entities authorized to hold Property in accordance with
Section 6 or 7 hereof to transmit to the Fund upon receipt, all
financial reports, stockholder communications, notices, proxies and
proxy soliciting materials received from issuers of the Securities, and
all information relating to exchange or tender offers received from
offerors with respect to the Securities. Such
Page 83
proxies will be executed by the registered holder if the registered
holder is other than the Fund, but the manner in which Securities are to
be voted will not be indicated. Neither the Bank nor any other entity
holding Property hereunder shall vote any Securities or authorize the
voting of any Securities or give any consent or take any other action
with respect thereto, except as otherwise provided herein.
(ii) In the event of tender offers, the Fund will hand deliver or
telecopy Instructions to the Bank as to the action to be taken with
respect thereto, designating such Instructions as being related to a
tender offer. The Fund shall hold the Bank harmless from any adverse
consequences of the Fund's use of telecopier transmission of, or any
other method for transmitting, Instructions relating to a tender offer.
(iii) The Fund agrees that if it gives an Instruction for the
performance of an act on the last permissible date of a period
established by a tender offer or on the last permissible date for the
performance of such act, the Fund shall hold the Bank harmless from any
adverse consequences in connection with acting upon or failing to act
upon such Instructions.
(iv) The Bank is authorized to accept and open on the Fund's behalf
all mail or communications relating to the Property received by the Bank
or directed in its care.
6. AUTHORIZED USE OF U.S. DEPOSITORIES
The Fund authorizes the Bank, for any Securities held hereunder, to use
the services of any United States securities depository permitted to
perform such services for registered investment companies and their
custodians under Rule 17f-4 promulgated under the Investment Company
Act, including but not limited to, The Depository Trust Company, the
Federal Reserve Book Entry System and Participants Trust Company ("U.S.
Depositories"). The Bank will deposit Securities held hereunder with a
U.S. Depository only in an account which holds assets of customers of
the Bank.
7. USE OF FOREIGN CUSTODIANS
(A) Authorization
(i) The Bank may cause Securities which are foreign securities
within the meaning of Rule 17f-5(c)(1) promulgated under the
Investment Company Act ("Foreign Securities") and amounts of cash
and cash equivalents reasonably required to effect the Fund's
Foreign Securities transactions ("Cash") in the Custody Account to
be held in such country or other jurisdiction as the Fund shall
direct in properly authorized Instructions.
(ii) Subject to prior approval by the Fund, the Bank may hold
such Foreign Securities and Cash in subcustody accounts, which shall
be deemed part of the Custody Account and which have been
established by the Bank with (x) branches of "Qualified U.S. Banks",
as defined in Rule 17f-5(c)(3) promulgated under the Investment
Company Act ("Branches"), or (y) foreign custodians which satisfy
the provisions of Rule 17f-5(c)(2)(i) or (ii) promulgated under the
Investment Company Act, or Exempt Subsidiaries or other foreign
custodians which are exempt from such provisions under the Exemptive
Order or any other order or release issued by the Securities and
Exchange Commission (such Branches, foreign custodians and Exempt
Subsidiaries, collectively, the Eligible Foreign Custodians"). The
Fund shall deliver to the Bank a certified copy of the resolution
approving both the use of each Eligible Foreign Custodian with which
the Foreign Securities and Cash of the Fund will be kept and, with
respect to Eligible Foreign Custodians other than Branches, the
Bank's contract with such Eligible Foreign Custodian.
(iii) Subject to prior approval by the Fund, the Bank or an
Eligible Foreign Custodian is authorized to hold Foreign Securities
of the Fund in an account with any foreign securities depository or
foreign clearing agency which in the Bank's judgment satisfies the
provisions of Rule 17f-5(c)(iii) or (iv) promulgated under the
Investment Company Act, or which is exempt from such provisions
under an order, no-action letter or release issued by the Securities
and Exchange Commission ("Eligible Foreign Securities Depository").
The Fund shall deliver to the Bank a certified copy of the
resolution approving the use of each Eligible Foreign Securities
Depository with which Foreign Securities of the Fund will be
deposited.
(iv) Any Foreign Securities or Cash held by an Eligible Foreign
Custodian or an Eligible Foreign Securities Depository, shall be
subject to applicable laws, regulations, restrictions, customs,
procedures, and market practices as exist in the country in which
such Foreign Securities and Cash is held. In the event that local
laws or regulations to which an Eligible Foreign Custodian or
Eligible Foreign Securities Depository is subject change in a way
that would prevent or limit the performance of duties and
obligations by the Eligible Foreign Custodian or Foreign Securities
Depository, such duties and obligations shall be superseded and
neither the Bank nor any other Citicorp affiliated company
organization shall be liable therefor or for any damages in any way
resulting from such prevented or limited performance.
Page 84
(B) Provision of Information Regarding Foreign Custodians and Securities
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Depositories
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(i) The Bank shall use its best efforts to assist the Fund in
obtaining the following:
(a) As to each country in which Property is held, information
concerning whether, and to what extent, applicable foreign law
would restrict the access afforded the Fund's independent
public accountants to books and records kept by a foreign
custodian or foreign securities depository used in that
country;
(b) As to each country in which Property is held, information
concerning whether, and to what extent, applicable foreign law
would restrict the Fund's ability to recover its assets in the
event of the bankruptcy of a foreign custodian or foreign
securities depository used in that country;
(c) As to each country in which Property is held, information
concerning whether, and to what extent, applicable foreign law
would restrict the Fund's ability to recover assets that are
lost while under the control of a foreign custodian or foreign
securities depository used in that country;
(d) As to each country in which Property is held, information
concerning whether under applicable foreign currency exchange
regulations the Fund's cash and cash equivalents held in that
country are readily convertible to U S. dollars;
(e) Information relating to whether each foreign custodian or
foreign securities depository used would provide a level of
safeguards for maintaining the Fund's Securities not materially
different from that provided by the Bank in maintaining the
Securities in the United States;
(f) Information concerning whether each foreign custodian or
foreign securities depository used has offices in the United
States in order to facilitate the assertion of jurisdiction
over and enforcement of judgments against such custodian or
depository; and
(g) As to each foreign securities depository used, information
concerning the number of participants in, and operating history
of, such depository.
(ii) During the term of this Agreement, the Bank shall use its best
efforts to provide the Fund with prompt notice of any material changes
in the facts or circumstances upon which any of the foregoing
information or statements were based.
(iii) Notwithstanding any of the foregoing provisions of this
subsection (b) of this Section 7, the Bank's undertaking to assist the
Fund in obtaining the information referred to in this subsection (b) of
the this Section 7 shall neither increase the Bank's duty of care nor
reduce the Fund's responsibility to determine for itself the prudence of
entrusting its assets to any particular foreign custodian or foreign
securities depository.
(C) Segregation and Identification of Assets
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The Bank will deposit Property of the Fund with an Eligible Foreign
Custodian only in an account which holds exclusively assets of customers
of the Bank. In the event that an Eligible Foreign Custodian is
authorized to hold any of the Foreign Securities placed in its care in
an Eligible Foreign Securities Depository pursuant to the provisions of
subsection (A) of this Section 7, the Bank will direct such Eligible
Foreign Custodian to identify such Foreign Securities on its books as
being held for the account of the Bank as custodian for its customers.
(D) Instructions to Eligible Foreign Custodians; Instructions to
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Eligible Foreign Securities Depositories
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Any Property in the Custody Account held by an Eligible Foreign
Custodian will be subject only to the instructions of the Bank or its
agents; and any Foreign Securities held in an Eligible Foreign
Securities Depository for the account of an Eligible Foreign Custodian
will be subject only to the instructions of such Eligible Foreign
Custodian, as subcustodian for the Bank.
(E) Contracts between the Bank and Exempt Subsidiaries.
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The Bank's contract with each Exempt Subsidiary provides:
(i) an acknowledgement by such Exempt Subsidiary that it is acting
as a foreign custodian for U.S. Investment Companies or their custodians
pursuant to the terms of the Exemptive Order; and
(ii) that the Fund is entitled to enforce the terms of the
subcustodian agreement between the Bank and the Exempt Subsidiary and is
entitled to seek relief directly against the Exempt Subsidiary.
Page 85
8. CITICORP GUARANTEE
Citicorp agrees that it shall be liable, in accordance with the terms of
a guarantee issued in compliance with the conditions of the Exemptive
Order, for losses incurred by the Fund resulting from bankruptcy or
insolvency of Exempt Subsidiaries operating pursuant to the terms of the
Exemptive Order.
9. USE OF AGENTS
The Bank may, subject to applicable laws, rules and regulations, appoint
agents, whether in its own name or that of the Fund, to perform any of
the duties of the Bank hereunder, and the Bank may delegate to any such
agent so appointed any of its functions under this Agreement.
10. INSTRUCTIONS
(A) The Bank is authorized to rely and act upon instructions
("Instructions") in writing which are signed by persons ("Authorized
Persons") named in a list provided to the Bank from time to time, which
list must be certified by the Fund's Secretary or Assistant Secretary
and include authenticated specimen signatures of all Authorized Persons.
Such list shall separately designate those Authorized Persons who may
authorize the withdrawal of the Securities free of payment, those
Authorized Persons who may authorize the unconditional transfer of
funds, and those Authorized Persons who may give Instructions by
electronic access.
(B) The Fund agrees that the Bank is authorized to rely and act upon
such Instructions in accordance with this Section 10 and the Funds
Transfer Procedures attached hereto and incorporated herein by reference
(including each Schedule A) to this Agreement and to debit or credit the
applicable account(s) of the Fund accordingly and that such Funds
Transfer Procedures and method(s) of transmission are commercially
reasonable.
(C) The Bank shall be entitled to rely upon the continued authority of
any Authorized Person to give Instructions until the Bank receives
notice from the Fund to the contrary; and the Bank shall be entitled to
rely upon any Instructions it believes in good faith to have been given
by an Authorized Person.
(D) The Bank is further authorized to rely upon any Instructions
received by any other means and identified as having been given or
authorized by any Authorized Person, regardless of whether such
Instructions shall in fact have been authorized or given by any of such
Authorized Persons, provided that the Bank and the Fund shall have
agreed upon the means of transmission and the method of identification
for such Instructions. Instructions received by any other means shall
include but not be limited to verbal Instructions only in connection
with delivery against payment or receipt against payment transactions
and transfer from one account with the Bank to another with the Bank and
provided that such verbal Instructions are promptly confirmed in writing
by the Fund. Notwithstanding the foregoing, in the event any such verbal
Instructions are not subsequently confirmed in writing, as provided
above, the Fund agrees to hold the Bank harmless and without liability
for any claims or losses in connection with such verbal Instructions.
(E) The Fund agrees to be bound by any Instruction, whether or not
authorized, given to the Bank in its name and accepted by the Bank in
accordance with the provisions hereof (including but not limited to the
Funds Transfer Procedures and Schedule A thereto) and further agrees to
indemnify and hold the Bank harmless from and against any loss,
liability, claim or expense (including legal fees and expenses)
associated with the Bank's acting upon such Instructions as provided
herein, except such as may arise from the Bank's own negligence, bad
faith or willful misconduct.
(F) The Fund may appoint one or more investment managers ("Investment
Managers") with respect to the Custody Account. The Bank is authorized
to act upon Instructions received from any Investment Manager to the
same extent that the Bank would act upon the Instructions of an
Authorized Person, provided that the Bank has received written evidence
of the Investment Manager's appointment and written confirmation from
the Investment Manager evidencing acceptance of such appointment. The
Investment Manager shall provide to the Bank from time to time a list of
persons authorized to give Instructions on behalf of the Investment
Manager. The list must be certified by the Investment Manager's
Secretary or Assistant Secretary and include authenticated specimen
signatures of such persons.
(G) If the Fund should choose to have telecommunication or other means
of electronic access to the Bank's reporting system for Property in the
Custody Account, pursuant to paragraph (E) of Section 5, the Bank is
also authorized to rely and act upon any Instructions received by it
through a terminal device, provided that such Instructions are
accompanied by code words which the Bank has furnished to the Fund, or
an Authorized Person, by any method mutually agreed to by the Bank and
the Fund, provided that the Bank has not been notified by the Fund, or
any such Authorized Person to cease to recognize such code words,
regardless of whether such Instructions shall in fact have been given or
authorized by the Fund or any such Authorized Person.
Page 86
(H) The Bank is authorized to act upon Instructions of the Fund's agent,
Fund/Plan, to the same extent that the Bank would act upon Instructions
of an Authorized Person provided that (i) the Bank has received
confirmation from Fund/Plan evidencing acceptance of its appointment as
agent by the Fund, (ii) the Bank shall have received from Fund/Plan a
list of persons (and such persons specimen signatures) authorized to
give Instructions on behalf of Fund/Plan, which list shall have been
certified by Fund/Plan's Secretary or Assistant Secretary, and (iii) the
Bank shall not have received written notice from (x) Fund/Plan that it
is no longer acting as the Fund's agent or directing the Bank to cease
recognizing Instructions from a designated Fund/Plan person, or (y) the
Fund to cease recognizing Instructions from Fund/Plan.
11. THE FUND
(A) The Fund agrees that no printed material or other matter in any
language (including without limitation, prospectuses, statements of
additional information, notices to shareholders, annual reports and
promotional material) which mention the Bank's or Citicorp's name or the
rights, powers or duties of the custodian of the Fund shall be issued by
the Fund or on the Fund's behalf unless the Bank shall first have given
its specific written consent thereto; provided, however, that no prior
consent shall be required if the only reference to the Bank's or
Citicorp's name is in identifying the Bank as the Fund's custodian.
(B) The Fund shall give prior notice to the Bank of any change in its
place of incorporation or organization, mailing address, or sponsors,
any significant change in management, investment objectives, fees or
redemption rights and any change to the appointment of Fund/Plan as its
agent.
(C) The Fund confirms that it is, and agrees that in the future it will
be, audited at least annually by an independent accounting firm and that
it mails, and in the future will mail, an audited financial report of
the Fund to its shareholders at least annually.
12. FEES AND EXPENSES
Payment of the Bank's compensation for services rendered hereunder shall
be the responsibility of the Fund. The Fund represents that by separate
agreement it has appointed Fund/Plan as its agent, and that Fund/Plan,
as agent for the Fund, has agreed to pay the compensation payable in
respect of such services promptly upon receipt of statements
therefore. The Fund shall pay to Fund/Plan fees for services (including
the Bank's custodial services) in accordance with the terms of an
agreement between Fund/Plan and the Fund. The Fund hereby directs the
Bank to (i) send all statements for compensation to its attention care
of Fund/Plan at the following address: Fund/Plan Services, Inc., 0 X.
Xxx Xxxxxx, Xxxxxxxxxxxx, XX 00000, Attention: Xx. Xxxxx Xxxxxxx, Senior
Vice President, and (ii) accept all payments made by Fund/Plan in the
Fund's name as if such payments were made directly by the Fund. The
Custodian's compensation for services rendered hereunder is set forth in
an agreement between the Bank and Fund/Plan Should Fund/Plan fail to pay
or remit such compensation to the Bank, the Bank will be entitled to
debit the Custody Account directly for such compensation. In the absence
of sufficient cash in the Custody Account to cover compensation, the
Fund shall promptly pay the bank for the unpaid compensation due
hereunder. In the absence of prompt payments by the Fund of the unpaid
compensation, the Bank shall be entitled to exercise, in addition to all
other rights existing in law or equity, the rights set forth in Section
13 hereof.
13. LIENS
The Bank shall have a lien on the Property in the Custody Account to
secure payment of fees and expenses for the services rendered under this
Agreement. If the Bank advances cash or securities to the Fund for any
purpose or in the event that the Bank or its nominee shall incur or be
assessed any taxes, charges, expenses, assessments, claims or
liabilities in connection with the performance of its duties hereunder,
except such as may arise from its or its nominee's negligent action,
negligent failure to act or willful misconduct, any Property at any time
held for the Custody Account shall be security therefor and the Fund
hereby grants a security interest therein to the Bank. The Fund shall
promptly reimburse the Bank for any such advance of cash or securities
or any such taxes, charges, expenses, assessments, claims or liabilities
upon request for payment, but should the Fund fail to so reimburse the
Bank, the Bank shall be entitled to dispose of such Property to the
extent necessary to obtain reimbursement. The Bank shall be entitled to
debit any account of the Fund with the Bank including, without
limitation, the Custody Account, in connection with any such advance and
any interest on such advance as the Bank deems reasonable.
14. TAX STATUS
The Fund's Tax Identification Number is: 94-320561.7
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15. AMENDMENT
This Agreement may not be amended except by a written agreement among
the parties hereto.
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16. TERMINATION
Either the Bank or the Fund may terminate this Agreement upon sixty (60)
days' written notice to the other parties.
17. CONFIDENTIALITY
Subject to the foregoing provisions of this Agreement and subject to any
applicable law, the Fund and the Bank shall each use best efforts to
maintain the confidentiality of matters concerning Property in the
Custody Account. The Fund expressly agrees that the Bank may disclose
any and all information concerning the Custody Account to the Fund's
agent, Fund/Plan.
18. NOTICES
All notices and other communications hereunder, except for Instructions
and reports relating to the Property which are transmitted through the
Bank's electronic reporting system for Property in the Custody Account,
shall be in writing, telex or telecopy or, if verbal, shall be promptly
confirmed in writing, and shall be hand-delivered, telexed, telecopied
or mailed by prepaid first class mail (except that notice of
termination, if mailed, shall be by prepaid registered or certified
mail), to each party at its address set forth above, if to the Fund,
marked "Attention G. Xxxx Xxxxxxxx" and if to the Bank, marked
-----------------
"Citibank as Custodian for Xxxxxxxx Pacific Tiger", and if to Citicorp,
------------------------
marked "Attention of Office of Corporate Finance, Xxxxxxx X. Xxxxx, Vice
President", or at such other address as each party may give notice of to
the others.
19. ASSIGNMENT
No party may assign, transfer or charge all or any of its rights and
benefits hereunder without the written consent of the other parties. Any
purported assignments made in contravention of this Section shall be
null and void and of no effect whatsoever.
20. GOVERNING LAW
This Agreement shall be governed by and construed according to the laws
of the State of New York and the parties agree that the courts of the
State of New York shall have jurisdiction to hear and determine any
suit, action or proceeding and to settle any disputes which may arise
out of, or in connection with, this Agreement, and, for such purposes,
each irrevocably submits to the non-exclusive jurisdiction of such
courts.
21. MISCELLANEOUS
(A) This Agreement may be executed in several counterparts, each of
which shall be an original, but all of which shall constitute one and
the same instrument.
(B) This Agreement contains the entire agreement among the parties
relating to custody of Property and supersedes all prior agreements on
this subject.
(C) The captions of the various sections and subsections of this
Agreement have been inserted only for the purposes of convenience and
shall not be deemed in any manner to modify, explain, enlarge or
restrict any of the provisions of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers hereunto duly authorized.
CITIBANK, N A. CITICORP
BY: BY:
--------------------------------- ---------------------------------
NAME: NAME:
------------------------------- -------------------------------
TITLE: TITLE:
------------------------------ ------------------------------
[FUND]
BY:
-----------------------------------
NAME:
---------------------------------
TITLE:
--------------------------------
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