Exhibit (g)(3)
[LOGO] CHASE
GLOBAL CUSTODY AGREEMENT
This AGREEMENT is effective November 17, 1999, and is between THE CHASE
MANHATTAN BANK ("Bank") and XXXXXX ASIAN GROWTH FUND, on behalf of each fund on
Schedule A hereto as the same may be amended from time to time (each a
"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.
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. 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 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 B
hereof with which Bank has entered into subcustodial agreements
("Subcustodians"). 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.
Customer shall be given reasonable notice by Bank of any amendment to Schedule
B. 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.
With respect to Financial Assets in the Accounts which are maintained
by Bank in the custody of a securities depository in which Bank participates:
(a) Bank shall identify on its books such Financial Assets as being
held for the account of Bank for Customer.
(b) Any Financial Assets held in a securities depository for the
account of the Bank will be subject only to the instructions of Bank.
(c) Financial Assets deposited with a securities depository will be
maintained in an account holding only assets of customers of Bank, unless
precluded by applicable law, rule, regulation, depository rule or the like.
(d) Upon receipt of Instructions, Bank shall terminate the use of any
such securities depository on behalf of Customer as promptly as practicable and
shall take all actions reasonably practicable to safeguard Financial Assets of
Customer that had been maintained with such securities depository; it being
acknowledged by Customer that removal of Financial Assets from a securities
depository may result in Customer having to liquidate such Financial Assets and
may expose Customer to market risk.
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 and unless not permitted by applicable
law, regulation, depository rule or the like, shall be held in an account at
such depository containing only assets held by Subcustodian as trustee,
custodian or the like for its customers.
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(d) Any agreement Bank enters into with a Subcustodian for holding
Bank's customers' assets shall provide either that: (A)(1) such assets shall not
be subject to any right, charge, security interest, lien or claim of any kind in
favor of such Subcustodian or its creditors except a claim of payment for their
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, (2) the beneficial ownership of such
assets shall be freely transferable without the payment of money or value other
than for safe custody or administration, (3) adequate records will be maintained
identifying the assets as belonging to Customer, (4) subject to applicable law
and regulation, Customer's independent public accountants will be given access
those records or confirmations of the contents of these records, and (5) that
the Customer shall be adequately indemnified or its assets adequately insured in
the event of loss or (B) such other provisions as Chase may determine will
provide, in their entirety, the same or greater level of care and protection for
Assets as the provisions specified in (A) in their entirety. 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 Assets. 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
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contractual settlement date for the related transaction and Bank shall
advise Customer of any such reversal.
(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.
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 has received notice 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) Appoint 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.
(f) In the event of any loss of Financial Assets or cash, use
reasonable efforts to ascertain the circumstances relating to such loss and
promptly report the same to Customer.
Where depository procedures permit, Bank shall pay for Financial Assets
purchased for the account of customer only upon (i) receipt of advice from the
securities depository that such Financial Assets have been transferred to the
Account, and (ii) the making of an entry on the records of Bank to reflect such
payment and transfer for the account of Customer. Where depository procedures
permit, Bank shall transfer Financial Assets sold for the account of Customer
only upon (1) receipt of advice from the securities depository that payment of
such Financial Assets has been transferred to the Account, and (2) the making of
an entry on the records of Bank to reflect such transfer and payment for the
account of Customer. Bank shall furnish Customer confirmation of each such
transfer to or from the account of Customer (which confirmation can be in
electronic form) on the next business day.
All collections of funds or other property paid or distributed in
respect of Financial Assets in the Custody Account shall be made at the risk of
Customer, unless such failure to collect was occasioned by Bank's failure to
exercise reasonable care, in which case Bank shall be liable to Customer for
losses and damages in accordance with Section 12 hereof, including the
limitations on Bank's liability contained therein. 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, or legal notices or other
material intended to be transmitted to securities holders ("Corporate Actions"),
Bank shall give Customer notice of such
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Corporate Actions to the extent that Bank's central corporate actions department
has received notice of a Corporate Action in time to notify its customers; it
being understood that a failure by a Subcustodian to advise Bank's Corporate
Actions Department of a Corporate Action of which such Subcustodian knew, or in
the exercise of reasonable care, should have known, shall not excuse Bank from a
failure of its Corporate Actions Department to have such knowledge.
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 use reasonable efforts 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 and without negligence, 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 or Customer, and shall be
indemnified accordingly, whether these result from the inaccurate
completion of documents by Customer or any third party, or as a result
of the provision to Bank or any third party of inaccurate or misleading
information or the withholding of material information by Customer or
any other third party, or as a result of 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.
(v) Customer confirms that Bank is authorized to disclose any
information requested by any revenue authority or any governmental body
in relation to Customer or the securities and/or cash held for
Customer, provided, however, that as soon as is practicable upon
receipt of such request which is other than a routine request and prior
to fulfilling the request where practical and permissible, Bank shall
notify customer of the identify of the revenue authority or
governmental body making the request and the information to be
provided..
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(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 had performed such services.
(d) Tax Obligations and Indemnification.
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(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. Bank shall furnish to Customer relevant documentation
and Customer shall return to Bank such documentation and information as
Bank may require in connection with taxation, and warrants that, when
given, this information shall be true and correct in every respect, not
misleading in any way, and contain all material information. Customer
undertakes to notify Bank immediately 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 the Deposit Account 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, withhold or report any tax or to report interest,
dividend or other income paid or credited to the Deposit Account solely
as a result of Bank's negligent acts or omissions.
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, held in an account containing only assets of Customer or only
assets held by Bank as fiduciary or custodian for customers. 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 manner Bank deems
to be fair and equitable in its reasonable discretion in-light of market factors
such as minimum tradable lot sizes, with the understanding that Bank would
typically use a pro rata allocation or lottery as the basis of allotment among
its customers. 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.
10. Authorized Persons.
As used herein, the term "Authorized Person" 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
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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
acceptable 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 and
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 (it being understood that Bank shall use reasonable efforts to
advise the Customer if Bank does not receive such confirmation or if such
confirmation does not conform to the telephone Instructions). Either party may
electronically record any Instructions given by telephone, and any other
telephone discussions with respect to the Custody Account. Customer acknowledges
that it is to use telephone Instructions only when there is insufficient time to
use another authorized means of transmitting Instructions. 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.
(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:
(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 Customer's 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 exercise reasonable care in the selection of
its Subcustodians and in monitoring their performance and financial
condition. Subject to Bank having selected a Subcustodian with
reasonable care and Bank's duty to use reasonable care in the
monitoring of a Subcustodian's financial condition as reflected in its
published financial statements and other publicly
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available financial information, 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
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) While Bank need not maintain any insurance for the
benefit of Customer, it shall maintain standard insurance coverage for
loss of assets held on behalf of its clients whether held with itself,
its branches or subsidiaries worldwide or its Subcustodians. Bank shall
notify Customer in the event that such insurance is canceled or
otherwise terminated. Bank confirms that it presently maintains a
bankers' blanket bond ("Bond"), which provides standard fidelity and
non-negligent loss coverage with respect to Financial Assets that may
be held by Bank and Financial Assets that may be held in the offices of
foreign banks and foreign securities depositories that may be used by
Bank pursuant to this Agreement; it being understood that insurance
coverage for certain losses affecting uncertificated securities may not
be available. If at any time Bank discontinues such coverage, it shall
promptly notify Customer in writing. Bank confirms that only the named
insured on the Bond, which includes Bank but not any of Bank's
customers, is directly protected against loss.
(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 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.
(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:
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(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; it being
understood, however, that , Bank shall be responsible for following
Instructions.
(c) Customer authorizes Bank to act hereunder notwithstanding 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 brokerage 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.
13. Fees and Expenses.
Customer shall pay Bank for its services hereunder the fees set forth
in Schedule C 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.
14. Miscellaneous.
(a) Foreign Exchange Transactions. To facilitate the administration of
Customer's trading and investment activity, 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, including standing 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
foreign exchange contract related to Accounts, the terms and conditions of the
then current foreign exchange contract of Bank, its subsidiary, Affiliate or
Subcustodian and, to the extent not inconsistent, this Agreement shall apply to
such transaction.
(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
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Subcustodian which has physical possession of any Assets as may be
required in connection with the examination of Customer's books and
records.
(d) Governing Law; Successors and Assigns, Captions. THIS AGREEMENT
SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO 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;
___ Other (specify)
This Agreement consists exclusively of this document together with
Schedules A-C, 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 on 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
10
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: Xxxxxxx Xxxxxx Investments, Inc., 000 Xxxxx Xxxxxxxxx Xxxxx , Xxxxxxx,
XX 00000-0000, Attention: Xx. Xxxxxx Xxxxxxx.
(j) Termination. This Agreement may be terminated by Customer or Bank
by giving sixty (60) 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 sixty (60) days following receipt of the 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. If within sixty (60) 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. Bank confirms to Customer that Bank: (a) is aware of the
risk that critical applications and computer systems and equipment containing
embedded microchips that it uses relating to its operations (the "Systems") may
be unable to process properly and calculate date-related information and data
from and after January 1, 2000 (the "Year 2000 Problem") and that it has
developed and has implemented a program to prepare its Systems so that they will
be capable of processing, on and after January 1, 2000, date and date related
data consistent with the functionality of such Systems. In addition, Bank's Year
2000 program includes assessing the readiness of the systems and applications of
each Affiliate and Subcustodian used by Bank to provide services hereunder. Bank
reasonably expects that the effects of the Year 2000 Problem should not result
in a material adverse effect on its ability timely to perform any of its
material obligations under this Agreement (a "Material Adverse Effect"). Bank
shall notify Customer promptly if it has reason to believe that a Material
Adverse Effect is likely to result from a Year 2000 Problem with respect to
Bank. In connection with this paragraph, 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) Records. Bank hereby agrees that Bank shall create, maintain, and
retain all records relating to its activities and obligations under this
Agreement in such manner as will meet the obligations of Customer under the
Investment Company Act, particularly Section 31 thereof and Rules 31a-1, 31a-2
and 31a-3 thereunder, and applicable Federal, state and foreign tax laws and
other laws or administrative rules or procedures, in each case as currently in
effect, which may be applicable to Customer. All records so maintained in
connection with the performance of its duties under this Agreement shall be
preserved and maintained as required by regulation and, in the event of
termination of the Agreement, shall be available to Customer or its agent upon
request.
(o) Additional Portfolios. If the Fund shall issue shares of more than
one portfolio during the term hereof, Bank shall segregate all Financial Assets
of the Fund by portfolio and all books and records, account values or actions
shall be maintained, held, made or taken, as the case may be, separately for
each
11
portfolio. Other than as encompassed by the preceding sentence, references in
this Agreement to "the Fund" are applicable either to the entire trust or to a
particular portfolio or portfolios, as the context may make reasonable and
appropriate. If the Fund has more than one portfolio, instructions shall
designate the portfolio or portfolios to which they apply.
(p) Disclaimer of Liability. This Agreement has been executed by and on
behalf of Customer by its representatives as such representatives and not
individually, and the obligations of Customer hereunder are not binding upon any
of the Trustees, officers or shareholders of Customer individually but are
binding upon only the assets and property of Customer. With respect to any claim
by Bank for recovery of that portion of the compensation (or any other liability
of Customer arising hereunder) allocated to a particular Customer, whether in
accordance with the express terms hereof or otherwise, Bank shall have recourse
solely against the assets of that Customer to satisfy such claim and shall have
no recourse against the assets of any other Customer for such purpose. Moreover,
the rights and benefits to which a given Customer is entitled hereunder shall be
solely those of such Customer and no other Customer hereunder shall receive such
benefits. For the avoidance of doubt, each Customer or the Bank may terminate
this Agreement pursuant to its provisions and the Agreement shall survive such
termination in respect of the remaining Customers that have not so terminated or
been terminated.
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 on Bank's
records to which Financial Assets are or may be credited pursuant
hereto.
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.
12
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first-above written.
XXXXXX ASIAN GROWTH FUND,
on behalf of each fund on Schedule A
By: /s/Xxxx X. Xxxxxx
------------------------------
Title: President
THE CHASE MANHATTAN BANK
By:
------------------------------
Title:
00
XXXXXXXXXXXX XX XXXXXXXXXXXXXX )
) ss.
COUNTY OF SUFFOLK )
On this 17th day of November, 1999, before me personally came Xxxx X.
Xxxxxx, to me known, who being by me duly sworn, did depose and say that he/she
is President of Xxxxxx Asian Growth Fund, 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.
/s/Xxxxxxx Xxxx
---------------
Notary Public
My commission expires:
XXXXXXX X. XXXX
Notary Public
My Commission Expires March 4, 0000
00
XXXXX XX XXX XXXX )
): ss.
COUNTY OF NEW YORK )
On this day of , 199 , before me personally came,
to me known, who being by me duly sworn, did depose and say that he/she resides
in at ; 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 ____________
day of ________________, 199__.
Notary
15
INVESTMENT COMPANY RIDER
To Global Custody Agreement
between
THE CHASE MANHATTAN BANK
and
Xxxxxx Asian Growth Fund, on behalf of each fund on Schedule A
Dated November 17, 1999
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 Securities and Exchange Commission ("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 SEC.
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 term "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 SEC Rule 17f-5(a)(7); under the Act;
(b) "eligible foreign custodian" shall mean (i) a banking institution
or trust company incorporated or organized under the laws of a country
other than the United States that is regulated as such by that
country's government or an agency thereof, (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, or (iii) 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: (i) that acts as a system
for the central handling of securities or equivalent book-entries in
that country and that is regulated by a foreign financial regulatory
authority as defined under section 2(a)(50) of the 1940 Act or (ii) to
the extent acting as a transnational system for the central handling of
securities or equivalent book-entries.
Customer represents that its Board of Directors has approved each of
the Subcustodians listed in Schedule B to this Agreement and the terms of the
subcustody agreements between Bank and each Subcustodian, which are attached as
Exhibits I through of Schedule B, 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
16
interests of the Fund(s) and its (their) shareholders. Bank will supply Customer
with any amendment to Schedule B 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 with
the annual report (SAS 70 Report) prepared by Bank's external auditors
on 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
Xxxxxx Asian Growth Fund, on behalf of each fund on Schedule A
Dated November 17, 1999
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 be liable 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).
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
18
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 ss.10 of the Agreement. Proxy Services fees
shall be as set forth in ss.13 of the Agreement or as separately
agreed.
19
SPECIAL TERMS AND CONDITIONS RIDER
To Global Custody Agreement
between
THE CHASE MANHATTAN BANK
and
Xxxxxx Asian Growth Fund, on behalf of each fund on Schedule A
Dated November 17, 1999
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
SCHEDULE A
To Global Custody Agreement
between
THE CHASE MANHATTAN BANK
and
Xxxxxx Asian Growth Fund
Dated November 17, 1999
Xxxxxx Asian Growth Fund
21
SCHEDULE B
[LOGO] XXXXX
Xxxxxx Asian Growth Fund
--------------------------------------------------------------------------------------------------------------------
COUNTRY SUBCUSTODIAN DEPOSITORY
------- ------------ ----------
--------------------------------------------------------------------------------------------------------------------
AUSTRALIA The Chase Manhattan Bank - Austraclear Ltd.
- The Clearing House Electronic
Sub-register System (CHESS)
- The Reserve Bank Information
and Transfer System (RITS)
--------------------------------------------------------------------------------------------------------------------
CHINA
Shanghai -Hongkong and Shanghai Banking -Shanghai Securities Central Clearing
Corporation Limited and Registration Corporation (SSCCRC)
Shenzhen -Hongkong and Shanghai Banking -Securities Clearing Co., Ltd. (SSCC)
Corporation Limited
--------------------------------------------------------------------------------------------------------------------
HONG KONG The Chase Manhattan Bank -Hong Kong Securities Clearing Co Ltd
(HKSCC)
-Central Moneymarkets Unit (CMU)
--------------------------------------------------------------------------------------------------------------------
INDIA -Deutsche Bank AG National Securities Depository Limited
-Hongkong and Shanghai Banking (NSDL)
Corporation Limited
--------------------------------------------------------------------------------------------------------------------
INDONESIA -Standard Chartered Bank None
-Hongkong and Shanghai Banking
Corporation Limited
--------------------------------------------------------------------------------------------------------------------
JAPAN The Fuji Bank, Ltd -The Japan Securities Depository Center
(JASDEC)
-Bank of Japan
--------------------------------------------------------------------------------------------------------------------
MALAYSIA The Chase Manhattan Bank Malaysian Central Depository Sdn.
Berhad
--------------------------------------------------------------------------------------------------------------------
NEW ZEALAND National Nominees Ltd Austraclear New Zealand
--------------------------------------------------------------------------------------------------------------------
PHILIPPINES The Hongkong and Shanghai Banking PCDI (Philippine Central Depository)
Corporation Limited
--------------------------------------------------------------------------------------------------------------------
SINGAPORE Standard Chartered Bank CDP (Central Depository Pte. Ltd.)
--------------------------------------------------------------------------------------------------------------------
SOUTH KOREA Hongkong and Shanghai Banking Korea Securities Depository (KSD)
Corporation, Ltd.
--------------------------------------------------------------------------------------------------------------------
TAIWAN The Chase Manhattan Bank Taipei Taiwan Securities Central Depository
Co., Ltd. (TSCD)
--------------------------------------------------------------------------------------------------------------------
THAILAND The Chase Manhattan Bank TSD (Thailand Securities Depository
Company Ltd.)
--------------------------------------------------------------------------------------------------------------------
TRANSNATIONAL The Chase Manhattan Bank CEDEL
--------------------------------------------------------------------------------------------------------------------
