AMENDMENT TO THE CUSTODIAN AGREEMENT
AMENDMENT entered into as of this 2nd day of March, 1998 to the Custodian
Agreement between Forward Funds, Inc. on behalf of the portfolios listed on
Appendix B hereto as the same may be amended from time to time (each a "Fund"
and collectively the "Funds") and XXXXX BROTHERS XXXXXXXX & CO. (the
"Custodian") dated as of March 2, 1998 (the "Agreement").
In consideration of the Custodian's offering subcustodial services to the
Fund in Russia, the Fund and the Custodian agree that the Agreement is hereby
amended as follows:
1. Section 4. Securities Account is amended by the addition of the
following phrase at the end of said Section:
"provided, however, that the Custodian's responsibility for safekeeping
equity securities of Russian issuers ("Russian Equities") hereunder
shall be limited to the safekeeping of relevant share extracts from the
share registration books maintained by the entities providing share
registration services to issuers of Russian Equities (each a
"Registrar") indicating an investor's ownership of such securities
(each a "Share Extract")."
2. Section 4.1 (b) Securities Represented by Book-Entry, is amended by the
addition of the following at the end of said Section:
"However, with respect to Russian Equities, the Custodian shall
instruct a Subcustodian to endeavor to assure that registration thereof
shall be reflected on the books of the issuer's Registrar, subject to
the following conditions, but shall in no event be liable for losses or
costs incurred as a result of delays or failures in the registration
process, including without limitation the inability to obtain or
enforce relevant Share Extracts. Such registration may be in the name
of a nominee of a Subcustodian. In the event registration is in the
name of a Fund, such Fund hereby acknowledges that only the Custodian
or Subcustodian may give instructions to the Registrar to transfer or
engage in other transactions involving the Russian Equities so
registered.
A Subcustodian may from time to time enter into contracts with
Registrars with respect to the registration of Russian Equities
("Registrar Contracts"). Such Registrar Contracts may provide for (i)
regular share confirmations by the Subcustodian, (ii) reregistrations
within set timeframes, (iii) use of a Subcustodian's nominee name, (iv)
direct access by auditors of the Subcustodian or its clients to share
registers, and (v) specification of the Registrar's responsibilities
and liabilities. It is hereby acknowledged and agreed that the
Custodian does not represent or warrant that such Registrar Contracts
are enforceable.
If the Fund instructs the Custodian to settle a purchase of a
Russian Equity, the Custodian will instruct a Subcustodian to endeavor
on a best efforts basis to reregister the Russian Equity and obtain a
Share Extract in a timely manner.
After completion of reregistration of a Russian Equity in
respect of which a Subcustodian has entered into a Registrar Contract,
the Custodian shall instruct the Subcustodian to monitor such registrar
on a best efforts basis and to notify the Custodian upon the
Subcustodian's obtaining knowledge of the occurrence of any of the
following events ("Registrar Events"): (i) a Registrar has eliminated a
shareholder from the register or has altered registration records; (ii)
a Registrar has refused to register securities in the name of a
particular purchaser and the purchaser or seller has alleged that the
registrar's refusal to so register was unlawful; (iii) a Registrar
holds for its own account shares of an issuer for which it serves as
registrar; (iv) if a Registrar Contract is in effect with a Registrar,
the Registrar notifies the Subcustodian that it will no longer be able
materially to comply with the terms of the Registrar Contract; or (v)
if a Registrar Contract is in effect with a Registrar, the Registrar
has materially breached such Contract. The Custodian shall inform the
Funds of the occurrence of a Registrar Event provided the Custodian has
in fact received actual notice thereof from the Subcustodian.
It shall be the sole responsibility of the Fund to contact the
Custodian prior to executing any transaction in a Russian Equity to
determine whether a Registrar Contract exists in respect of such
issuer.
If the Fund instructs the Custodian by Proper Instruction to
settle a purchase of a Russian Equity in respect of which the
Subcustodian has not entered into a Registrar Contract, then the
Custodian shall instruct the Subcustodian to endeavor to settle such
transaction in accordance with the Proper Instruction and with the
provisions of Section 4.2 (a) of this Agreement, notwithstanding the
absence of any such Registrar Contract and without the Custodian being
required to notify the Fund that no such Registrar Contract is then in
effect, and it being understood that neither the Custodian nor the
Subcustodian shall be required to follow the procedure set forth in the
second preceding paragraph."
3. Section 4.2 (a) Purchases, is amended by the addition of the following
at the end of said Section:
"Without limiting the generality of the foregoing, the
following provisions shall apply with respect to settlement of
purchases of securities in Russia. Unless otherwise instructed by
Proper Instructions acceptable to the Custodian, the Custodian shall
only authorize a Subcustodian to make payment for purchases of Russian
Equities upon receipt of the relevant Share Extract in respect of the
Fund's purchases. With respect to securities other than Russian
Equities, settlement of purchases shall be made in accordance with
securities processing or settlement practices which the Custodian in
its discretion determines to be a market practice. The Custodian shall
only be responsible for securities purchased upon actual receipt of
such securities at the premises of its Subcustodian, provided that the
Custodian's responsibility for securities represented by Share Extracts
shall be limited to the safekeeping of the relevant Share Extract upon
actual receipt of such Share Extract at the premises of the
Subcustodian."
4. Section 4.2 (b) Sales, is amended by the addition of the following at
the end of said Section:
"Without limiting the generality of the foregoing, the
following provisions shall apply with respect to settlement of sales of
securities in Russia. Unless otherwise expressly instructed by Proper
Instructions acceptable to the Custodian, settlement of sales of
securities shall be made in accordance with securities processing or
settlement practices which the Custodian in its discretion determines
to be a market practice. The Fund hereby expressly acknowledges that
such market practice might require delivery of securities prior to
receipt of payment and that the Fund bears the risk of payment in
instances where delivery of securities is made prior to receipt of
payment therefor in accordance with Proper Instructions received by the
Custodian or pursuant to the Custodian's determination in its
discretion that such delivery is in accordance with market practice.
The Custodian shall not be responsible for any securities delivered
from the premises of the Subcustodian from the time they leave such
premises."
5. Section 7 Authority to Appoint Subcustodians and Agents and to Utilize
Securities Depositories is amended by the addition of the following at the end
of the first paragraph of Section 7:
"With respect to Russia, the Fund hereby expressly
acknowledges that a Subcustodian for Russian securities may from time
to time delegate any of its duties and responsibilities to any
securities depository, clearing agency, share registration agent or
sub-subcustodian (collectively, "Russian Agent") in Russia, including
without limitation Rosvneshtorgbank (also called Vneshtorgbank RF)
("VTB"). The Fund acknowledges that the rights of the Subcustodian
against any such Russian Agent may consist only of a contractual claim
against the Russian Agent.
Notwithstanding any provision of this Agreement to the
contrary, neither the Custodian nor the Subcustodian shall be
responsible or liable to the Fund or its shareholders for the acts or
omissions of any such Russian Agent. In the event of a loss of
securities or cash held on behalf of the Fund through any Russian
Agent, the Custodian shall not be responsible to the Fund or its
shareholders unless and to the extent it in fact recovers from the
Subcustodian."
6. Section 10.2 Liability of the Custodian with respect to Proper
Instructions; Evidence of Authority; Etc. is amended by the insertion of the
following at the end of the first paragraph of said Section:
"It is also agreed that the Fund shall be responsible for
preparation and filing of tax returns, reports and other documents on
any activities it undertakes in Russia which are to be filed with any
relevant governmental or other authority and for the payment of any
taxes, levies, duties or similar liability the Fund incurs in respect
of property held or sold in Russia or of payments or distributions
received in respect thereof in Russia. Accordingly, the Fund hereby
agrees to indemnify and hold harmless the Custodian from any loss, cost
or expense resulting from the imposition or assessment of any such tax,
duty, levy or liability or any expenses related thereto."
7. A new Section 15, Risk Disclosure Acknowledgment, is added at the end of
the present Section 14.10:
"The Fund hereby acknowledges that it has received, has read
and has understood the Custodian's Risk Disclosure Statement, a copy of
which is attached hereto and is incorporated herein by reference. The
Fund further acknowledges that the Risk Disclosure Statement is not
comprehensive, and warrants and represents to the Custodian that it has
undertaken its own review of the risks associated with investment in
Russia and has concluded that such investment is appropriate for the
Fund and in no way conflicts with the Fund's constitutive documents,
investment objective, duties to its shareholders or with any regulatory
requirements applicable to the Fund."
Except as amended above, all the provisions of the Agreement as heretofore
in effect shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
first set forth above.
Forward Funds, Inc. on behalf of XXXXX BROTHERS XXXXXXXX & CO.
The portfolios listed on Appendix B
hereto
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Name: Name:
Title: Title:
