EXHIBIT (G)(5)
CHASE
GLOBAL CUSTODY AGREEMENT
This AGREEMENT is effective August 13, l998, and is between THE CHASE
MANHATTAN BANK ("Bank") and ABN AMRO ("Customer").
1. CUSTOMER ACCOUNTS.
Bank, acting as "Securities Intermediary" (as defined In Section 15(g)
hereof) shall establish and maintain the following accounts ("Accounts"): (a) a
Custody Account (as defined in Section 15(b) hereof) in the name of Customer for
Financial Assets, which shall, except as modified by Section 15(d) hereof, mean
stocks. shares, bonds, debentures, notes, mortgages or other obligations for the
payment of money, bullion, coin and any certificates, receipts, warrants or
other instruments representing rights to receive, purchase or subscribe for the
same or evidencing or representing any other rights or interests therein and
other similar property whether certificated or uncertificated as may be received
by Bank or its Subcustodian (as defined in Section 3 hereof) for the account of
Customer, including as an "Entitlement Holder" as defined in Section 15(c)
hereof) and
(b) an account in the name of Customer ("Deposit Account") for any and all
cash in any currency received by Bank or its Subcustodian for the account of
Customer, which cash shall not be subject to withdrawal by draft or check (other
than cash in a bank account established and maintained by Customer in accordance
with Securities and Exchange Commission ("SEC") rule 17f-3 under the Investment
Company Act of 1940 ("Act"), as amended).
Customer warrants its authority to: 1) deposit the cash and Financial
Assets (collectively "Assets") received in the Accounts and 2) give Instructions
(as defined in Section 11 hereof) concerning the Accounts. In the case of
fungible Assets. Bank may deliver Financial Assets of the same class in place of
those deposited in the Custody Account.
Upon written agreement between Bank and Customer, additional Accounts may
be established and separately accounted for as additional Accounts hereunder.
2. MAINTENANCE OF FINANCIAL ASSETS AND CASH AT BANK AND SUBCUSTODIAN
LOCATIONS.
Unless Instructions specifically require another location reasonably
acceptable to Bank:
(a) Financial Assets shall be held in the country or other jurisdiction in
which the principal trading market for such Financial Assets is located, where
such Financial Assets are to be presented for payment or where such Financial
Assets are acquired and
(b) Cash shall be credited to an account in a country or other jurisdiction
in which such cash may be legally deposited or is the legal currency for the
payment of public or private debts.
Cash may be held pursuant to Instructions in either interest or
non-interest bearing accounts as may be available for the particular currency.
To the extent Instructions are issued and Bank can comply with such
Instructions, Bank is authorized to maintain cash balances on deposit for
Customer with itself or one of its "Affiliates" at such reasonable rates of
interest as may from time to time be paid on such accounts, or in non-interest
bearing accounts as Customer may direct, if acceptable to Bank. For purposes
hereof, the term "Affiliate" shall mean an entity controlling, controlled by, or
under common control with, Bank.
If Customer wishes to have any of its Assets held in the custody of an
institution other than the established Subcustodians as defined in Section 3 (or
their securities depositories), such arrangement must be authorized by a written
agreement, signed by Bank and Customer.
3. SUBCUSTODIANS AND SECURITIES DEPOSITORIES.
Bank may act hereunder through the subcustodians listed in Schedule A
hereof with which Bank has entered into subcustodial agreements
("Subcustodians"), provided that every such Subcustodian is qualified to act as
a custodian for an investment company under the Act. Bank may hold Financial
Asset in a clearing agency registered under Section 17A of the Securities
Exchange Act of 1934 which acts as a securities depository provided that (i)
such Assets are held in an account of the Bank which includes only assets of the
Bank held for customers; and (ii) Bank shall furnish Customer with a
confirmation of each transfer to or from the account. Where Financial Asset are
so transferred, Bank shall identify as belonging to Customer a quantity of
assets in a fungible bulk of securities (A) registered in Bank's name or (B)
shown on Bank's account on the books of the clearing agency. Bank may also hold
Financial Assets with the Federal Reserve book-entry system. Customer authorizes
Bank to hold Assets in the Accounts in accounts which Bank has established with
one or more of its branches or Subcustodians. Bank and Subcustodians are
authorized to hold any of Financial Assets in their account with any securities
depository in which they participate.
Bank reserves the right to add new, replace or remove Subcustodians. Upon
request by Customer, Bank shall identify the name, address and principal place
of business of any Subcustodian of Customer's Assets and the name and address of
the governmental agency or other regulatory authority that supervises or
regulates such Subcustodian.
4. USE OF SUBCUSTODIAN.
(a) Bank shall identify the Assets on its books as belonging to Customer.
(b) A Subcustodian shall hold such Assets together with assets belonging to
other customers of Bank in accounts identified on such Subcustodian's books as
custody accounts for the exclusive benefit of customers of Bank.
(c) Any Assets in the Accounts held by a Subcustodian shall be subject only
to the Instructions of Bank or its agent. Any Financial Assets held in a
securities depository for the account of a Subcustodian shall be subject only to
the Instructions of such Subcustodian.
(d) Any agreement Bank enters into with a Subcustodian for holding Bank's
customers' assets shall provide that such assets shall not be subject to any
right, charge, security interest, lien or claim of any kind in favor of such
Subcustodian except for safe custody or administration, and that the beneficial
ownership of such assets shall be freely transferable without the payment of
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money or value other than for safe custody or administration or, in the case of
cash deposits, except for liens or rights in favor of creditors of the
Subcustodian arising under bankruptcy, insolvency or similar laws. Where
Securities are deposited by a Subcustodian with a securities depository, Bank
shall cause the Subcustodian to identify on its books as belonging to Bank, as
agent, the Securities shown on the Subcustodian's account on the books of such
securities depository. The foregoing shall not apply to the extent of any
special agreement or arrangement made by Customer with any particular
Subcustodian.
5. DEPOSIT ACCOUNT TRANSACTIONS.
(a) Bank or its Subcustodians shall make payments from the Deposit Account
upon receipt of Instructions which include all information required by Bank.
(b) In the event that any payment to be made under this Section 5 exceeds
the funds available in the Deposit Account, Bank, in its discretion, may advance
Customer such excess amount which shall be deemed a loan payable on demand,
bearing interest at the rate customarily charged by Bank on similar loans.
(c) If Bank credits the Deposit Account on a payable date, or at any time
prior to actual collection and reconciliation to the Deposit Account, with
interest, dividends, redemptions or any other amount due Customer shall promptly
return any such amount upon oral or written notification: (i) that such amount
has not been received in the ordinary course of business or (ii) that such
amount was incorrectly credited. If Customer does not promptly return any amount
upon such notification, Bank shall be entitled, upon oral or written
notification to Customer, to reverse such credit by debiting the Deposit Account
for the amount previously credited. Bank or its Subcustodian shall have no duty
or obligation to institute legal proceedings, file a claim or a proof of claim
in any insolvency proceeding or take any other action with respect to the
collection of such amount, but may act for Customer upon Instructions after
consultation with Customer.
6. CUSTODY ACCOUNT TRANSACTIONS.
(a) Financial Assets shall be transferred, exchanged or delivered by Bank
or its Subcustodian upon receipt by Bank of Instructions which include all
information required by Bank. Settlement and payment for Financial Assets
received for, and delivery of Financial Assets out of, the Custody Account may
be made in accordance with the customary or established securities trading or
securities processing practices and procedures in the jurisdiction or market in
which the transaction occurs, including, without limitation, delivery of
Financial Assets to a purchaser, dealer or their agents against a receipt with
the expectation of receiving later payment and free delivery. Delivery of
Financial Assets out of the Custody Account may also be made in any manner
specifically required by Instructions acceptable to Bank.
(b) Bank, in its discretion, may credit or debit the Accounts on a
contractual settlement date with cash or Financial Assets with respect to any
sale, exchange or purchase of Financial Asset. Otherwise, such transactions
shall be credited or debited to the Accounts on the date cash or Financial
Assets are actually received by Bank and reconciled to the Account.
(i) Bank may reverse credits or debits made to the Accounts in its
discretion if the related transaction fails to settle within a reasonable
period, determined by Bank in its discretion after the contractual
settlement date for the related transaction. Bank shall promptly notify
Customer of any such failed transaction.
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(ii) If any Financial Assets delivered pursuant to this Section 6 are
returned by the recipient thereof, Bank may reverse the credits and debits
of the particular transaction at any time. Bank shall promptly notify
Customer of any such returned Assets.
7. ACTIONS OF BANK.
Bank shall follow Instructions received regarding Assets held in the
Accounts. However, until it receives Instructions to the contrary, Bank shall:
(a) Present for payment any Financial Assets which are called, redeemed or
retired or otherwise become payable and all coupons and other income items which
call for payment upon presentation, to the extent that Bank or Subcustodian is
actually aware of such opportunities.
(b) Execute in the name of Customer such ownership and other certificates
as may be required to obtain payments in respect of Financial Assets.
(c) Exchange interim receipts or temporary Financial Assets for definitive
Financial Assets.
(d) Account brokers and agents for any transaction involving the Financial
Assets, including, without limitation, Affiliates of Bank or any Subcustodian.
(e) Issue statements to Customer, at times mutually agreed upon,
identifying the Assets in the Accounts and issue reports as are reasonably
requested by Customer. The foregoing statements and reports shall, where
appropriate, identify Assets belonging to each series of Customer.
Bank shall send Customer an advice or notification of any transfers of
Assets to or from the Accounts. Such statements, advices or notifications shall
indicate the identity of the entity having custody of the Assets. Unless
Customer sends Bank a written exception or objection to any Bank statement
within sixty (60) days of receipt, Customer shall be deemed to have approved
such statement. In such event, or where Customer has otherwise approved any such
statement, Bank shall, to the extent permitted by law, be released, relieved and
discharged with respect to all matters set forth in such statement or reasonably
implied therefrom as though it had been settled by the decree of a court
competent jurisdiction in an action where Customer and all persons having or
claiming an interest in Customer or Customer, Accounts were parties.
All collections of funds or other property paid or distributed on Financial
Assets in the Custody Account shall be made at the risk of Customer. Subject to
the standard of care in Section 12(a) hereof. Bank shall have no liability for
any loss occasioned by delay in the actual receipt of notice by Bank or by its
Subcustodians of any payment, redemption or other transaction regarding
Financial Assets in the Custody Account in respect of which Bank has agreed to
take any action hereunder.
8. CORPORATE ACTIONS; PROXIES; TAX RECLAIMS.
(a) Corporate Actions. Whenever Bank receives information concerning the
Financial Assets which requires discretionary action by the beneficial owner of
the Financial Assets (other than a Proxy) such as subscription rights, bonus
issues, stock repurchase plans and rights offerings,
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or legal notices or other material intended to be transmitted to securities
holders ("Corporate Actions"), Bank shall give Customer notice of such Corporate
Actions to the extent that Bank's central corporate actions department has
actual knowledge of a Corporate Action in time to notify its customers. If Bank
is unable to provide prior notice of a Corporate Action, Bank shall provide
notice to Customer as soon as reasonably practicable thereafter.
When a rights entitlement or a fractional interest resulting from a rights
issue, stock dividend, stock split or similar Corporate Action is received which
bears an expiration date, Bank shall endeavor to obtain Instructions from
Customer or its Authorized Person (as defined in Section 10 hereof) but if
Instructions are not received in time for Bank to take timely action, or actual
notice of such Corporate Action was received too late to seek Instructions, Bank
is authorized to sell such rights entitlement or fractional interest and to
credit the Deposit Account with the proceeds or take any other action it deems,
in good faith, to be appropriate in which case it shall be held harmless for any
such action.
(b) Proxy Voting. Bank shall provide proxy voting services, if elected by
Customer, in accordance with the terms of the proxy voting services rider
hereto. Proxy voting services may be provided by Bank or, in whole or in part,
by one or more third parties appointed by Bank (which may be Affiliates of
Bank).
(c) Tax Reclaims.
(i) Subject to the provisions hereof, Bank shall apply for a reduction of
withholding tax and any refund of any tax paid or tax credits which apply
in each applicable market in respect of income payments on Financial Assets
for Customer's benefit which Bank believes may be available to Customer.
(ii) The provision of tax reclaim services by Bank is conditional upon
Bank's receiving from Customer or, to the extent the Financial Assets are
beneficially owned by others, from each beneficial owner, A) a declaration
of the beneficial owner's identity and place of residence and (B) certain
other documentation (pro forma copies of which are available from Bank).
Customer acknowledges that, if Bank does not receive such declarations,
documentation and information Bank shall be unable to provide tax reclaim
services.
(iii) Bank shall not be liable to Customer or any third party for any
taxes, fines or penalties payable by Bank in connection herewith or by
Customer, and shall be indemnified accordingly, whether these result from
the inaccurate completion of documents by Customer or any third party (but
excluding Subcustodians), or as a result of the provision by Customer to
Bank or any third party of inaccurate or misleading information or the
withholding of material information by Customer or any other third party
(but excluding Subcustodians), or from any delay of any revenue authority
or any other matter beyond Bank's control.
(iv) Bank shall perform tax reclaim services only with respect to taxation
levied by the revenue authorities of the countries notified to Customer
from time to time and Bank may, by notification in writing, at Bank's
absolute discretion, supplement or amend the markets in which tax reclaim
services are offered. Other than as expressly provided in this sub-clause,
Bank shall have no responsibility with regard to Customer's tax position or
status in any jurisdiction.
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(v) Customer confirms that Bank is authorized to disclose only such
information as is requested by any revenue authority or any governmental
body in relation to Customer or the securities and/or cash held for
Customer.
(vi) Tax reclaim services may be provided by Bank or, in whole or in part,
by one or more third parties appointed by Bank (which may be Bank's
affiliates); provided that Bank shall be liable for the performance of any
such third party to the same extent as Bank would have been if Bank
performed such services.
(d) Tax Obligations.
(i) Customer confirms that Bank is authorized to deduct from any cash
received or credited to the Deposit Account any taxes or levies required by
any revenue or governmental authority for whatever reason in respect of the
Custody Account.
(ii) If Bank does not receive appropriate declarations, documentation and
Information that additional United Kingdom taxation shall be deducted from
all income received in respect of the Financial Assets issued outside the
United Kingdom and any applicable United States withholding tax shall be
deducted from income received from the Financial Assets. Customer shall
provide to Bank such documentation and information as Bank may require in
connection with taxation, any warrants that, when given, this information
shall be true and correct in every material respect, not misleading in any
material way, and contain all material information. Customer undertakes to
notify Bank as soon as reasonably practicable if any such information
requires updating or amendment.
(iii) Customer shall be responsible for the payment of all taxes relating
to the Financial Assets in the Custody Account, and Customer agrees to pay,
indemnify and hold Bank harmless from and against any and all liabilities,
penalties, interest or additions to tax with respect to or resulting from,
any delay in, or failure by, Bank (1) to pay, withhold or report any U.S.
federal, state or local taxes or foreign taxes imposed on, or (2) to report
Interest, dividend or other income paid or credited to the Deposit Account,
whether such failure or delay by Bank to pay, withhold or report tax or
income is the result of (x) Customer's failure to comply with the terms of
this paragraph, or (y) Bank's own acts or omissions; provided however
Customer shall not be liable to Bank for any liabilities, penalties,
interest or additions to tax due as a result of Bank's failure to pay or
withhold tax or to report interest, dividend or other income paid or
credited to the Deposit Account solely as a result of Bank's (or a
Subcustodian's) negligence, bad faith or willful misconduct.
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9. NOMINEES.
Financial Assets which are ordinarily held in registered form may be
registered in a nominee name of Bank, Subcustodian or securities depository, as
the case may be. Bank may without notice to Customer cause any such Financial
Assets to cease to be registered in the name of any such nominee and to be
registered in the name of Customer. In the event that any Financial Assets
registered in a nominee name are called for partial redemption by the issuer,
Bank may allot the called portion to the respective beneficial holders of such
class of security in a fair and equitable manner. Customer shall hold Bank,
Subcustodians, and their respective nominees harmless from any liability arising
directly or indirectly from their status as a mere record holder of Financial
Assets in the Custody Account except to the extent caused by Bank's (or a
Subcustodian's) negligence, bad faith or willful misconduct.
10. AUTHORIZED PERSONS.
As used herein, the term "Authorized Persons" means employees or agents
including investment managers as have been designated by written notice from
Customer or its designated agent to act on behalf of Customer hereunder. Such
persons shall continue to be Authorized Persons until such time as Bank receives
Instructions from Customer or its designated agent that any such employee or
agent is no longer an Authorized Person.
11. INSTRUCTIONS.
The term "Instructions" means instructions of any Authorized Person
received by Bank, via telephone, telex, facsimile transmission, bank wire or
other teleprocess or electronic instruction or trade information system
acceptab1e to Bank which Bank believes in good faith to have been given by
Authorized Persons or which are transmitted with proper testing or
authentication pursuant to terms and conditions which Bank may specify. Unless
otherwise expressly provided, all Instructions shall continue in full force are
effect until canceled or superseded. The term "Instructions" includes, without
limitation, instructions to sell, assign, transfer, deliver, purchase or receive
for the Custody Account, any and all stocks, bonds and other Financial Assets or
to transfer funds in the Deposit Account.
Any Instructions delivered to Bank by telephone shall promptly thereafter
be confirmed in writing by an Authorized Person (which confirmation may bear the
facsimile signature of such Person), but Customer shall hold Bank harmless for
the failure of an Authorized Person to send such confirmation in writing, the
failure of such confirmation to conform to the telephone instructions received
or Bank's failure to produce such confirmation at any subsequent time. Bank may
electronically record any Instructions given by telephone, and any other
telephone discussions with respect to the Custody Account. Customer shall be
responsible for safeguarding any testkeys, identification codes or other
security devices which Bank shall make available to Customer or its Authorized
Persons.
12. STANDARD OF CARE; LIABILITIES; INDEMNIFICATION.
(a) Bank shall be responsible for the performance of only such duties as
are set forth herein or expressly contained in Instructions which are consistent
with the provisions hereof as follows:
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(i) Notwithstanding any other provisions of this Agreement, Bank's
responsibilities shall be limited to the exercise of reasonable care with
respect to its obligations hereunder. Bank shall only be liable to Customer
for any loss which shall occur as the result of the failure of a
Subcustodian to exercise reasonable care with respect to the safekeeping of
such Assets where such loss results directly from the failure by the
Subcustodian to use reasonable care in the provision of custodial services
by it in accordance with the standards prevailing in its local market or
from the willful default of such Subcustodian in the provision of custodial
services by it. In the event of any loss to Customer which is compensable
hereunder (i.e. a loss arising by reason of willful misconduct or the
failure of Bank or its Subcustodian to use reasonable care). Bank shall be
liable to Customer only to the extent of Customers direct damages to be
determined based on the market value of the property which is the subject
of the loss at the date of discovery of such loss and without reference to
any special conditions or circumstances. Bank shall have no liability
whatsoever for any consequential, special, indirect or speculative loss or
damages (including, but not limited to, lost profits) suffered by Customer
in connection with the transactions and services contemplated hereby and
the relationship established hereby even if Bank has been advised as to the
possibility of the same and regardless of the form of the action.
(ii) Bank shall not be responsible for the insolvency of any Subcustodian
which is not a branch or Affiliate of Bank. Bank shall not be responsible
for any act, omission, default or the solvency of any broker or agent which
it or a Subcustodian appoints unless such appointment was made negligently
or in bad faith.
(iii) (A) Customer shall indemnify and hold Bank and its directors,
officers, agents and employees (collectively the "Indemnitees") harmless
from and against any and all claims, liabilities, losses, damages, fines,
penalties, and expenses, including reasonable out-of-pocket and incidental
expenses and legal fees ("Losses") that may be imposed on, incurred by, or
asserted against, the Indemnitees or any of them for following any
instructions or other directions upon which Bank is authorized to rely
pursuant to the terms of this Agreement. (B) In addition to and not in
limitation of the preceding subparagraph, Customer shall also indemnify and
hold the Indemnitees and each of them harmless from and against any and all
Losses that may be imposed on, incurred by, or asserted against, the
Indemnitees or any of them in connection with or arising out of Bank's
performance under this Agreement, provided the Indemnitees have not acted
with negligence or engaged in willful misconduct. (C) In performing its
obligations hereunder, Bank may rely on the genuineness of any document
which it believes in good faith to have been validly executed.
(iv) Customer shall pay for and hold Bank harmless from any liability or
loss resulting from the imposition or assessment of any taxes or other
governmental charges, and any related expenses with respect to income from
or Assets in the Accounts,
(v) Bank shall be entitled to rely, and may act, upon the advice of counsel
(who may be counsel for Customer) on all matters and shall be without
liability for any action reasonably taken or omitted pursuant to such
advice.
(vi) Bank need not maintain any insurance for the benefit of Customer.
(vii) Without limiting the foregoing, Bank shall not be liable for any loss
which results from: 1) the general risk of investing, or 2) investing or
holding Assets in a particular
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country including but not limited to, losses resulting from malfunction,
interruption of or error in the transmission of information caused by any
machines or system or interruption of communication facilities, abnormal
operating conditions, nationalization, expropriation or other governmental
actions; regulation of the banking or securities industry; currency
restrictions, devaluations or fluctuations; and market conditions which
prevent the orderly execution of securities transactions or affect the
value of Assets; except that, with respect to the failure of machines,
systems, interruption of communication facilities or abnormal operating
conditions on Bank or a Subcustodian's premises or otherwise within the
control of Bank or a Subcustodian, Bank shall not be so excused to the
extent that such failure was on account of Bank's or the Subcustodian's (as
the case may be) negligence (such as a failure to have had routine
maintenance performed or to have selected equipment reasonably suitable for
the purposes contemplated hereby given, in the case of Subcustodians, local
market practices with respect to such matters).
(viii) Neither party shall be liable to the other for any loss due to
forces beyond their control including, but not limited to strikes or work
stoppages, acts of war (whether declared or undeclared) or terrorism,
insurrection, revolution, nuclear fusion, fission or radiation, or acts of
God.
(b) Consistent with and without limiting the first paragraph of this
Section 12, it is specifically acknowledged that Bank shall have no duty or
responsibility to:
(i) question Instructions or make any suggestions to Customer or an
Authorized Person regarding such Instructions;
(ii) supervise or make recommendations with respect to investments or the
retention of Financial Assets;
(iii) advise Customer or an Authorized Person regarding any default in the
payment of principal or income of any security other than as provided in
Section 5(c) hereof;
(iv) evaluate or report to Customer or an Authorized Person regarding the
financial condition of any broker, agent or other party to which Financial
Assets are delivered or payments are made pursuant hereto; and
(v) review or reconcile trade confirmations received from brokers. Customer
or its Authorized Persons issuing Instructions shall bear any
responsibility to review such confirmations against Instructions issued to
and statements issued by Bank.
(c) Customer authorizes Bank to act hereunder not withstanding that Bank or
any of its divisions or Affiliates may have a material interest in a
transaction, or circumstances are such that Bank may have a potential conflict
of duty or interest including the fact that Bank or any of its Affiliates may
provide broker services to other customers, act as financial advisor to the
issuer of Financial Assets, act as a lender to the issuer of Financial Assets,
act in the same transaction as agent for more than one customer, have a material
interest in the issue of Financial Assets, or earn profits from any of the
activities listed herein.
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13. FEES AND EXPENSES.
Customer shall pay Bank for its services hereunder the fees set forth in
Schedule B hereto or such other amounts as may be agreed upon in writing,
together with Bank's reasonable out-of-pocket or incidental expenses, including,
but not limited to, legal fees. Bank shall have a lien on and is authorized to
charge any Accounts of Customer for any amount owing to Bank under any provision
hereof.
14. MISCELLANEOUS.
(a) Foreign Exchange Transactions. To facilitate the administration of
Customer's trading and investment activity, when instructed by specific or
standing instruction, Bank is authorized to enter into spot or forward foreign
exchange contracts with Customer or an Authorized Person for Customer and may
also provide foreign exchange through its subsidiaries, Affiliates or
Subcustodians. Instructions, may be issued with respect to such contracts but
Bank may establish rules or limitations concerning any foreign exchange facility
made available. In all cases where Bank, its subsidiaries, Affiliates or
Subcustodians enter into a separate master foreign exchange contract with
Customer that covers foreign exchange transactions for the accounts, the terms
and conditions of that foreign exchange contract, and to the extent not
inconsistent, this Agreement, shall apply to such transactions.
(b) Certification of Residency, etc. Customer certifies that it is a
resident of the United States and shall notify Bank of any changes in residency.
Bank may rely upon this certification or the certification of such other facts
as may be required to administer Bank's obligations hereunder. Customer shall
indemnify Bank against all losses, liability, claims or demands arising directly
or indirectly from any such certifications.
(c) Access to Records. Bank shall allow Customer's independent public
accountant reasonable access to the records of Bank relating to the Assets as is
required in connection with their examination of books and records pertaining to
Customer's affairs. Subject to restrictions under applicable law, Bank shall
also obtain an undertaking to permit Customer's independent public accountants
reasonable access to the records of any Subcustodian which has physical
possession of any Assets as may be required in connection with the examination
of Customer's books and records. Bank shall also allow access by regulatory
authorities to have access to Customer's records held by Bank.
(d) Governing Law; Successors and Assigns, Captions. THIS AGREEMENT SHALL
BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK APPLICABLE T0 AGREEMENTS MADE
AND TO BE PERFORMED IN NEW YORK and shall not be assignable by either party, but
shall bind the successors in interest of Customer and Bank. The captions given
to the sections and subsections of this Agreement are for convenience of
reference only and are not to be used to interpret this Agreement.
(e) Entire Agreement; Applicable Riders. Customer represents that the
Assets deposited in the Accounts are (Check one):
x Investment Company assets subject to certain U.S. Securities and
---
Exchange Commission rules and regulations:
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--- Other (specify)
This Agreement consists exclusively of this document together with
Schedules A and B. Exhibits I ________ and the following Rider(s) [Check
applicable rider(s)]:
x INVESTMENT COMPANY
---
x PROXY VOTING
---
x SPECIAL TERMS AND CONDITIONS
---
There are no other provisions hereof and this Agreement supersedes any
other agreements, whether written or oral, between the parties. Any amendment
hereto must be in writing, executed by both parties.
(f) Severability. In the event that one or more provisions hereof are held
invalid, illegal or unenforceable in any respect on the basis of any particular
circumstances or in any jurisdiction, the validity, legality and enforceability
of such provision or provisions under other circumstances or in other
jurisdictions and of the remaining provisions shall not in any way be affected
or impaired.
(g) Waiver. Except as otherwise provided herein, no failure or delay on the
part of either party in exercising any power or right hereunder operates as a
waiver, nor does any single or partial exercise of any power or right preclude
any other or further exercise, or the exercise of any other power or right. No
waiver by a party of any provision hereof, or waiver of any breach or default,
is effective unless in writing and signed by the party against whom the waiver
is to be enforced.
(h) Representations and Warranties. (i) Customer hereby represents and
warrants to Bank that: (A) it has full authority and power to deposit and
control the Financial Assets and cash deposited in the Accounts; (B) it has all
necessary authority to use Bank as its custodian; (C) this Agreement constitutes
its legal, valid and binding obligation, enforceable in accordance with its
terms; (D) it shall have full authority and power to borrow moneys and enter
into foreign exchange transactions; and (E) it has not relied an any oral or
written representation made by Bank or any person on its behalf, and
acknowledges that this Agreement sets out to the fullest extent the duties of
Bank. (ii) Bank hereby represents and warrants to Customer that: (A) it has the
full power and authority to perform its obligations hereunder; (B) this
Agreement constitutes its legal, valid and binding obligation, enforceable in
accordance with its terms; and (C) that it has taken all necessary action to
authorize the execution and delivery hereof.
(i) Notices. All notices hereunder shall be effective when actually
received. Any notices or other communications which may be required hereunder
are to be sent to the parties at the following addresses or such other addresses
as may subsequently be given to the other party in writing: (a) Bank: The Chase
Manhattan Bank, 4 Chase MetroTech Center, Brooklyn, N.Y. 11245, Attention:
Global Investor Services, Investment Management Group; and (b) Customer.
(j) Termination. This Agreement may be terminated by Customer or Bank by
giving ninety (90) days written notice to the other, provided that such notice
to Bank shall specify the names of the persons to whom Bank shall deliver the
Assets in the Accounts. If notice of termination is given by Bank, Customer
shall, within ninety (90) days following receipt of the
11
notice, deliver to Bank Instructions specifying the names of the persons to whom
Bank shall deliver the Assets. In either case Bank shall deliver the Assets to
the persons so specified, after deducting any amounts which Bank determines in
good faith to be owed to it under Section 13. Bank shall provide a statement
itemizing such amounts prior to deducting the same. If within ninety (90) days
following receipt of a notice of termination by Bank, Bank does not receive
Instructions from Customer specifying the names of the persons to whom Bank
shall deliver the Assets, Bank, at its election, may deliver the Assets to a
bank or trust company doing business in the State of New York to be held and
disposed of pursuant to the provisions hereof, or to Authorized Persons, or may
continue to hold the Assets until Instructions are provided to Bank.
(k) Money laundering. Customer warrants and undertakes to Bank for itself
and its agents that all Customer's customers are properly identified in
accordance with U.S. Money Laundering Regulations as in effect from time to
time.
(l) Imputation of certain information. Bank shall not be held responsible
for and shall not be required to have regard to information held by any person
by imputation or information of which Bank is not aware by virtue of a "Chinese
Wall" arrangement. If Bank becomes aware of confidential information which in
good faith it feels inhibits it from effecting a transaction hereunder Bank may
refrain from effecting it.
(m) Year 2000 and Euro. Bank has developed and is implementing a program to
prepare Bank's systems and applications so that they will be capable of
processing, on and after: (1) January 1, 2000, date and date related data
consistent with the functionality of such systems and applications, and (2)
January 4, 1999 (or such other date as may be determined by the European
Economic and Monetary Union), transactions denominated in the Euro. In addition,
Bank is or will be conducting testing with its Subcustodians concerning the
readiness of their respective systems and applications. In connection with this
subparagraph (m), Bank's obligations to Customer, as respects both Bank's
performance and Bank's liability (and the limitations thereon), shall continue
as and to the extent provided elsewhere in this Agreement.
(n) Confidentiality. Bank shall use the same care and discretion it uses
with respect to keeping its own similar records confidential in keeping records
relating to Customer confidential and, except as otherwise provided herein,
shall not disclose such records without Customer s prior written consent.
(o) Limitation of liability. The obligations of Customer hereunder shall
not be binding upon any of the Trustees, shareholders, nominees, officers or
agents of Customer, whether past, present or future, of the Customer
individually, but shall be binding only upon the assets and property of
Customer. The obligations of a series hereunder shall not be binding upon any
other series, but shall be binding only upon the assets and property of such
series.
15. DEFINITIONS.
As used herein, the following terms shall have the meaning hereinafter
stated:
A) "Certificated Security" shall mean a security that is represented by a
certificate.
B) "Custody Account" means each Securities custody account or Banks records to
which Financial Asset's are or may be credited pursuant hereto.
12
C) "Entitlement Holder" shall mean the person on the records of a Securities
Intermediary as the person having a Securities Entitlement against the
Securities Intermediary.
D) "Financial Asset" shall mean, as the context requires, either the asset
itself or the means by which a person's claim to it is evidenced, including
a Certificated Security or Uncertificated Security, a security certificate,
or a Securities Entitlement.
E) "Securities" means stocks, bonds, rights, warrants and other negotiable and
non-negotiable paper whether issued as Certificated Securities or
Uncertificated Securities and commonly traded or dealt in on securities
exchanges or financial markets, and other obligations of an issuer, or
shares, participations and interests in an issuer recognized in an area in
which it is issued or dealt in as a medium for investment and any other
property as shall be acceptable to Bank for the Custody Account.
F) "Securities Entitlement" shall mean the rights and property interest of an
Entitlement Holder with respect to a Financial Asset as set forth in Part 5
of the Uniform Commercial Code.
G) "Securities Intermediary" shall mean Bank, a Subcustodian, a securities
depository, and any other financial institution which in the ordinary
course of business maintains custody accounts for others and acts in that
capacity.
H) "Uncertificated Security" shall mean a security that is not represented by
a certificate.
I) "Uniform Commercial Code" means Article 8 of the Uniform Commercial Code of
the State of New York, as the same may be amended from time to time.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first-above written.
ABN AMRO
By: /s/ Xxxxxxx Xxxxx
--------------------------------------------------------------------
Title: President
Date: 8/13/98
THE CHASE MANHATTAN BANK
By: /s/ conformed signature
--------------------------------------------------------------------
Title: Senior Vice President
Date: 8/14/98
13
STATE OF Illinois )
: ss.
COUNTY OF Xxxx )
On this 13th day of August, 1998 before me personally came Xxxxxxx X.
Xxxxx, to me known, who being by me duly sworn, did depose and say that he/she
resides in at , that he/she is President of the ABN AMRO Funds, the entity
described in and which executed the foregoing instrument; that he/she knows the
seal of said entity, that the seal affixed to said instrument is such seal, that
it was so affixed by order of said entity, and that he/she signed his/her name
thereto by like order.
_______________________________
Sworn to before me this 13th 'OFFICIAL SEAL'
day of August 1998 XXXXXXXX X. XXXXXXXX
NOTARY PUBLIC STATE OF ILLINOIS
/s/Xxxxxxxx X. Xxxxxxxx My Commission Expires 01/17/2002
Notary ________________________________
00
XXXXX XX XXX XXXX )
: ss.
COUNTY OF NEW YORK )
On this 14th day of August, 1998, before me personally came, to me known,
who being by me duly sworn, did depose and say that he/she resides in at New
York City; that he/she is a Vice President of The CHASE MANHATTAN BANK, the
corporation described in and which executed the foregoing instrument; that
he/she knows the seal of said corporation, that the seal affixed to said
instrument is such corporate seal, that it was so affixed by order of the Board
of Directors of said corporation, and that he/she signed his/her name thereto by
like order.
Sworn to before me this 14th --------------------------------
day of August 1998 "OFFICIAL SEAL"
XXXXXXXX X. XXXXXXXX
/s/ Xxxxxxxxxx X. Xxxxxx NOTARY PUBLIC STATE OF ILLINOIS
Notary MY COMMISSION EXPIRES 01/17/2002
--------------------------------
15
Investment Company Rider to Global Custody Agreement
Between The Chase Manhattan Bank and
ABN AMRO Funds
effective August 13, 1998
Customer represents that the Assets being placed in Bank's custody are
subject to the Investment Company Act of 1940 (the Act), as the same may be
amended from time to time.
Except to the extent that Bank has specifically agreed to comply with a
condition of a rule, regulation, interpretation promulgated by or under the
authority of the SEC or unless Bank has otherwise specifically agreed, Customer
shall be solely responsible to assure that the maintenance of Assets under this
Agreement complies with such rules, regulations, interpretations or exemptive
order promulgated by or under the authority of the Securities Exchange
Commission.
The following modifications are made to the Agreement:
Section 3. Subcustodians and Securities Depositories.
Add the following language to the end of Section 3:
The terms "Subcustodian" as used in this Agreement shall mean a branch of a
qualified U.S. bank or an eligible foreign custodian and the term
"securities depositories" as used in this Agreement shall mean an eligible
foreign securities depository, which are further defined as follows:
(a) "qualified U.S. Bank" shall mean a qualified U.S. bank as defined in
Rule 17f-5 under the Investment Company Act of 1940;
(b) "eligible foreign custodian" shall mean (i) a banking institution or
trust company incorporated or organized under the laws of a country other
than the United States that is regulated as such by that country's
government or an agency thereof, (ii) a majority owned direct or indirect
subsidiary of a qualified U.S. bank or bank holding company that is
incorporated or organized under the laws of a country other than the United
States, (iii) a banking institution or trust company incorporated or
organized under the laws of a country other than the United States or a
majority owned direct or indirect subsidiary of a qualified U.S. bank or
bank holding company that is incorporated or organized under the laws of a
country other than the United States which has such other qualifications as
shall be specified in Instructions and approved by the Bank; or (iv) any
other entity that shall have been so qualified by exemptive order, rule or
other appropriate action of the SEC; and
(c) "eligible foreign securities depository" shall mean a securities
depository or clearing agency, incorporated or organized under the laws of
a country other than the United States, which operates (i) the central
system for handling securities or equivalent book-entries in that country,
or (ii) a transnational system for the central handling of securities or
equivalent book-entries.
For purposes of clarity, it is agreed that as used in Section 12(a)(i) of the
Agreement, the term Subcustodian shall not include any eligible foreign
custodian appointed pursuant to the last paragraph of Section 2(b) of the
Agreement or any eligible foreign securities depository.
16
Customer represents that its Board of Directors has approved each of the
Subcustodians listed in Schedule A to this Agreement and the terms of the
subcustody agreements between Bank and each Subcustodian, which are attached as
Exhibits I through __ of Schedule A, and further represents that its Board has
determined that the use of each; (a) Subcustodian and the terms of each
subcustody agreement are consistent with the best interests of the Fund(s) and
its (their) shareholders; and (b) securities depository is consistent with the
best interests of the Fund(s) and its (their) shareholders. Bank will supply
Customer with any amendment to Schedule A for approval. Customer has supplied or
will supply Bank with certified copies of its Board of Directors resolution(s)
with respect to the foregoing prior to placing Assets with any Subcustodian so
approved.
Section 14. Access to Records.
Add the following language to the end of Section 14(c):
Upon reasonable request from Customer, Bank shall furnish Customer such
reports (or portions thereof) of Bank's system of internal accounting
controls applicable to the Bank's duties under this Agreement. Bank shall
endeavor to obtain and furnish the Customer with such similar reports as it
may reasonably request with respect to each Subcustodian and securities
depository holding Customer's assets.
17
GLOBAL PROXY SERVICE RIDER
To Global Custody Agreement
Between
THE CHASE MANHATTAN BANK
AND
ABN AMRO Funds
dated August 13, 1998
1. Global Proxy Services ("Proxy Services") shall be provided for the
countries listed in the procedures and guidelines ("Procedures") furnished
to Customer, as the same may be amended by Bank from time to time on prior
notice to Customer. The Procedures are incorporated by reference herein and
form a part of this Rider.
2. Proxy Services shall consist of those elements as set forth in the
Procedures, and shall include (a) notifications ("Notifications") by Bank
to Customer of the dates of pending shareholder meetings, resolutions to be
voted upon and the return dates as may be received by Bank or provided to
Bank by its Subcustodians or third parties, and (b) voting by Bank of
proxies based on Customer Instructions. Original proxy materials or copies
thereof shall not be provided. Notifications shall generally be in English
and, where necessary, shall be summarized and translated from such
non-English materials as have been made available to Bank or its
Subcustodian. In this respect Bank's only obligation is to provide
information from sources it believes to be reliable and/or to provide
materials summarized and/or translated in good faith. Bank reserves the
right to provide Notifications, or parts thereof, in the language received.
Upon reasonable advance request by Customer, backup information relative to
Notifications, such as annual reports, explanatory material concerning
resolutions, management recommendations or other material relevant to the
exercise of proxy voting rights shall be provided as available, but without
translation.
3. While Bank shall attempt to provide accurate and complete Notifications,
whether or not translated, Bank shall not reliable for any losses or other
consequences that may result from reliance by Customer upon Notifications
where Bank prepared the same in good faith.
4. Notwithstanding the fact that Bank may act in a fiduciary capacity with
respect to Customer under other agreements or otherwise under the
Agreement, in performing Proxy Services Bank shall be acting solely as the
agent of Customer, and shall not exercise any discretion with regard to
such Proxy Services.
5. Proxy voting may be precluded or restricted in a variety of circumstances,
including, without limitation where the relevant Financial Assets are: (i)
on loan; (ii) at registrar for registration or reregistration; (iii) the
subject of a conversion or other corporate action; (iv) not held in a name
subject to the control of Bank or its Subcustodian or are otherwise held in
a manner which precludes voting; (v) not capable of being voted on account
of local market regulations or practices or restrictions by the issuer; or
(vi) held in a margin or collateral account.
6. Customer acknowledges that in certain countries Bank may be unable to vote
individual proxies but shall only be able to vote proxies on a net basis
(e.g., a net yes or no vote given the voting Instructions received from all
customers).
18
7. Customer shall not make any use of the information provided hereunder,
except in connection with the funds or plans covered hereby, and shall in
no event sell, license, give or otherwise make the information provided
hereunder available, to any third party, and shall not directly or
indirectly compete with Bank or diminish the market for Proxy Services by
provision of such information, in whole or in part, for compensation or
otherwise, to any third party.
8. The names of Authorized Persons for Proxy Services shall be furnished to
Bank in accordance with Section 10 of the Agreement. Proxy Services fees
shall be as set forth in Section 13 of the Agreement or as separately
agreed.
19
DOMESTIC AND GLOBAL
SPECIAL TERMS AND CONDITIONS RIDER
TO GLOBAL CUSTODY AGREEMENT BETWEEN
THE CHASE MANHATTAN BANK AND
ABN AMRO FUNDS
Dated: August 13, 1998
Domestic Corporate Actions and Proxies
With respect to domestic U.S. and Canadian Financial Assets (the latter if held
in DTC), the following provisions shall apply rather than the pertinent
provisions of Section 8 of the Agreement and the Global Proxy Service rider:
Bank shall send to Customer or the Authorized Person for a Custody Account,
such proxies (signed in blank, if issued in the name of Bank's nominee or
the nominee of a central depository) and communications with respect to
Financial Assets in the Custody Account as call for voting or relate to
legal proceedings within a reasonable time after sufficient copies are
received by Bank for forwarding to its customers. In addition, Bank shall
follow coupon payments, redemptions, exchanges or similar matters with
respect to Financial Assets in the Custody Account and advise Customer or
the Authorized Person for such Account of rights issued, tender offers or
any other discretionary rights with respect to such Financial Assets, in
each case, of which Bank has received notice from the issuer of the
Financial Assets, or as to which notice is published in publications
routinely utilized by Bank for this purpose.
20
AMENDMENT DATED SEPTEMBER 16, 1999
TO SCHEDULE A
TO THE GLOBAL CUSTODY AGREEMENT (THE "AGREEMENT")
DATED AUGUST 13, 1998
BETWEEN
ABN AMRO FUNDS
AND
THE CHASE MANHATTAN BANK
Pursuant to Article 1(b) of the Agreement, the Agreement is hereby amended to
include Institutional Treasury Money Market Fund(US), Institutional Government
Money Market Fund (US) and Institutional Prime Money Market Fund (US) as new
portfolios of the Trust.
ABN AMRO FUNDS
By: /s/Xxxxxx X. Xxxxx
Title: Senior Vice President
THE CHASE MANHATTAN BANK
By:/s/
Title: Vice President
21
