EXHIBIT G(2)
AGREEMENT BETWEEN
XXXXX BROTHERS XXXXXXXX & CO.
AND
BEAR XXXXXXX INVESTMENT TRUST
Table of Contents
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Page
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1. Employment of Custodian....................................................... 1
2. Powers and Duties of the Custodian with respect to Property of the Fund
held by the Custodian......................................................... 1
A. Safekeeping............................................................. 2
B. Manner of Holding Securities............................................ 2
C. Registered Name......................................................... 2
D. Purchases............................................................... 2
E. Exchanges............................................................... 3
F. Sales of Securities..................................................... 3
G. Depositary Receipts..................................................... 4
H. Exercise of Rights; Tender Offers....................................... 5
I. Stock Dividends, Rights, Etc............................................ 5
J. Options................................................................. 5
K. Borrowings.............................................................. 6
L. Demand Deposit Bank Accounts............................................ 6
M. Interest Bearing Call or Time Deposits.................................. 6
N. Foreign Exchange Transactions and Futures Contracts..................... 7
O. Stock Loans............................................................. 8
P. Collections............................................................. 8
Q. Dividends. Distributions and Redemptions................................ 9
R. Proxies, Notices, Etc................................................... 9
S. Nondiscretionary Details................................................ 10
T. Bills................................................................... 10
U. Deposit of Fund Assets in Securities Systems............................ 10
V. Other Transfers......................................................... 12
W. Investment Limitations.................................................. 13
X. Restricted Securities................................................... 13
Y. Proper Instructions..................................................... 14
Z. Segregated Account...................................................... 15
3. Powers and Duties of the Custodian with Respect to the Appointment of
Subcustodians................................................................. 15
4. Assistance by the Custodian as to Certain Matters............................. 19
5. Powers and Duties of the Custodian with Respect to Records.................... 19
A. Records................................................................. 19
B. Accounts................................................................ 20
C. Access to Records....................................................... 20
6. Standard of Care and Related Matters.......................................... 20
A. Liability of the Custodian with Respect to Proper Instructions:
Evidence of Authority; Etc.............................................. 20
B. Liability of the Custodian with Respect to Use of Securities System..... 21
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C. Standard of Care; Liability; Indemnification............................ 22
D. Reimbursement of Advances............................................... 23
E. Security for Obligations to Custodian................................... 23
F. Appointment of Agents................................................... 23
X. Xxxxxx of Attorney...................................................... 24
7. Compensation of the Custodian................................................. 24
8. Termination; Successor Custodian.............................................. 24
9. Amendment..................................................................... 25
10. Governing Law................................................................. 25
11. Notices....................................................................... 25
12. Binding Effect................................................................ 26
13. Counterparts.................................................................. 26
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CUSTODIAN AGREEMENT
AGREEMENT made this 8th day of January, 1993, between BEAR XXXXXXX
INVESTMENT TRUST (the "Trust") and Xxxxx Brothers Xxxxxxxx & Co. (the
"Custodian");
WHEREAS, the Emerging Markets Debt Fund (the "Fund") is organized as a
separate, non-diversified portfolio of the Trust, an open-end management company
and the Trust wishes to retain the Custodian as custodian of the Fund's assets;
WITNESSETH: That in consideration of the mutual covenants and
agreements herein contained, the parties hereto agree as follows:
1. Employment of Custodian: The Trust hereby employs and appoints the
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Custodian as a custodian of the Fund for the term and subject to the provisions
of this Agreement. The Custodian shall not be under any duty or obligation to
require the Fund to deliver to it any securities or funds owned by the Fund and
shall have no responsibility or liability for or on account of securities or
funds not so delivered. The Fund will deposit with the Custodian copies of the
Declaration of Trust and By-Laws of the Trust and all amendments thereto, and
copies of such votes and other proceedings of the Trust as may be necessary for
or convenient to the Custodian in the performance of its duties.
2. Powers and Duties of the Custodian with respect to Property of the Fund
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held by the Custodian: Except for securities and funds held by any Subcustodians
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(as defined in Section 3 hereof) or held by the Custodian through a non-U.S.
securities depository appointed pursuant to the provisions of Section 3 hereof,
the Custodian shall have and perform the following powers and duties:
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A. Safekeeping - To keep safely the securities and other assets of
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the Fund that have been delivered to the Custodian and, on behalf of the Fund,
from time to time to receive delivery of securities and other assets for
safekeeping.
B. Manner of Holding Securities - To hold securities of the Fund (1)
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by physical possession of the share certificates or other instruments
representing such securities in registered or bearer form, or (2) in book-entry
form by a Securities System (as said term is defined in Section 2U).
C. Registered Name - To hold registered securities of the Fund, with
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or without any indication of fiduciary capacity, provided that securities are
held in an account of the Custodian containing only assets of the Fund or only
assets held as fiduciary or custodian for customers.
D. Purchases - Upon receipt of Proper Instructions, as defined in
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Section Y, insofar as funds are available for the purpose, to pay for and
receive securities purchased for the account of the Fund, payment being made
only upon receipt of the securities (1) by the Custodian, or (2) by a clearing
corporation of a national securities exchange of which the Custodian is a
member, or (3) by a Securities System. However. (i) in the case of repurchase
agreements entered into by the Fund, the Custodian (as well as an Agent) may
release funds to a Securities System or to a Subcustodian prior to the receipt
of advice from the Securities System or Subcustodian that the securities
underlying such repurchase agreement have been transferred by book entry into
the Account (as defined in Section 2U) of the Custodian (or such Agent)
maintained with such Securities System or Subcustodian, so long as such payment
instructions to the Securities System or Subcustodian include a requirement that
delivery is only against payment for securities (ii) in the case of foreign
exchange contracts, options, time deposits, call
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account deposits, currency deposits, and other deposits, contracts or options
pursuant to Sections 2J, 2L, 2M and 2N, the Custodian may make payment therefor
without receiving an instrument evidencing said deposit, contract or option so
long as such payment instructions detail specific securities to be acquired, and
(iii) in the case of securities in which payment for the security and receipt of
the instrument evidencing the security are under generally accepted trade
practice or the terms of the instrument representing the security expected to
take place in different locations or through separate parties, such as
commercial paper which is indexed to foreign currency exchange rates,
derivatives and similar securities, the Custodian may make payment for such
securities prior to delivery thereof in accordance with such generally accepted
trade practice or the terms of the instrument representing such security.
E. Exchanges - Upon receipt of Proper Instructions, to exchange
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securities held by it for the account of the Fund for other securities in
connection with any reorganization, recapitalization, split-up of shares, change
of par value, conversion or other event, relating to the securities or the
issuer of such securities, and to deposit any such securities in accordance with
the terms of any reorganization or protective plan. Without Proper Instructions,
the Custodian may surrender securities in temporary form for definitive
securities, may surrender securities for transfer into a name or nominee name as
permitted in Section 2C, and may surrender securities for a different number of
certificates or instruments representing the same number of shares or same
principal amount of indebtedness, provided the securities to be issued are to be
delivered to the Custodian.
F. Sales of Securities - Upon receipt of Proper Instructions, to
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make delivery of securities which have been sold for the account of the Fund,
but only against payment therefor (1) in cash, by a certified check, bank
cashier's check, bank credit, or bank wire transfer, or (2)
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by credit to the account of the Custodian with a clearing corporation of a
national securities exchange of which the Custodian is a member, or (3) by
credit to the account of the Custodian or an Agent of the Custodian with a
Securities System: provided, however, that (i) in the case of delivery of
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physical certificates or instruments representing securities, the Custodian may
make delivery to the broker buying the securities, against receipt therefor, for
examination in accordance with "street delivery" custom, provided that the
payment therefor is to be made to the Custodian (which payment may be made by a
broker's check) or that such securities are to be returned to the Custodian, and
(ii) in the case of securities referred to in clause (iii) of the last sentence
of Section 2D, the Custodian may make settlement, including with respect to the
form of payment, in accordance with generally accepted trade practice relating
to such securities or the terms of the instrument representing said security.
G. Depositary Receipts - Upon receipt of Proper Instructions, to
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instruct a Subcustodian or an Agent to surrender securities to the depositary
used by an issuer of American Depositary Receipts or International Depositary
Receipts (hereinafter collectively referred to as "ADRs") for such securities
against a written receipt therefor adequately describing such securities and
written evidence satisfactory to the Subcustodian or Agent that the depositary
has acknowledged receipt of instructions to issue with respect to such
securities ADRs in the name of the Custodian, or a nominee of the Custodian, for
delivery to the Custodian in Boston, Massachusetts, or at such other place as
the Custodian may from time to time designate.
Upon receipt of Proper Instructions, to surrender ADRs to the issuer
thereof against a written receipt therefor adequately describing the ADRs
surrendered and written evidence satisfactory to the Custodian that the issuer
of the ADRs has acknowledged receipt of
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instructions to cause its depositary to deliver the securities underlying such
ADRs to a Subcustodian or an Agent.
H. Exercise of Rights; Tender Offers - Upon timely receipt of Proper
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Instructions, to deliver to the issuer or trustee thereof, or to the agent of
either, warrants, puts, calls, rights or similar securities for the purpose of
being exercised or sold, provided that the new securities and cash, if any,
acquired by such action are to be delivered to the Custodian, and, upon receipt
of Proper Instructions, to deposit securities upon invitations for tenders of
securities, provided that the consideration is to be paid or delivered or the
tendered securities are to be returned to the Custodian.
I. Stock Dividends, Rights, Etc. - To receive and collect all stock
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dividends, rights and other items of like nature; and to deal with the same
pursuant to Proper Instructions relative thereto.
J. Options - Upon receipt of Proper Instructions, to receive and
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retain confirmations or other documents evidencing the purchase or writing of an
option on a security or securities index by the Fund; to deposit and maintain in
a segregated account, either physically or by book-entry in a Securities System,
securities subject to a covered call option written by the Fund; and to release
and/or transfer such securities or other assets only in accordance with the
provisions of any agreement among the Fund, the Custodian and a broker-dealer
relating to such securities or other assets a notice or other communication
evidencing the expiration, termination or exercise of such covered option
furnished by The Options Clearing Corporation, the securities or options
exchange on which such covered option is traded or such other organization as
may be responsible for handling such options transactions.
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K. Borrowings - Upon receipt of Proper Instructions, to deliver
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securities of the Fund to lenders or their agents as collateral for borrowings
effected by the Fund, provided that such borrowed money is payable to or upon
the Custodian's order as Custodian for the Fund.
L. Demand Deposit Bank Accounts - To open and operate an account or
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accounts in the name of the Fund on the Custodian's books subject only to draft
or order by the Custodian. All funds received by the Custodian from or for the
account of the Fund shall be deposited in said account(s). The responsibilities
of the Custodian to the Fund for deposits accepted on the Custodian's books
shall be that of a U. S. bank for a similar deposit.
If and when authorized by Proper Instructions, the Custodian may open and
operate an additional account(s) in such other banks or trust companies as may
be designated by the Fund in such instructions (any such bank or trust company
so designated by the Fund being referred to hereafter as a "Banking
Institution"), provided that such account(s) (hereinafter collectively referred
to as "demand deposit bank accounts") shall be in the name of the Custodian for
account of the Fund and subject only to the Custodian's draft or order. Such
demand deposit accounts may be opened with Banking Institutions in the United
States and in other countries and may be denominated in either U. S. Dollars or
other currencies as the Fund may determine. All such deposits shall be deemed to
be portfolio securities of the Fund and accordingly the responsibility of the
Custodian therefore shall be the same as and no greater than the Custodian's
responsibility in respect of other portfolio securities of the Fund.
M. Interest Bearing Call or Time Deposits - To place interest
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bearing fixed term and call deposits with such banks and in such amounts as the
Fund may authorize pursuant to Proper Instructions. Such deposits may be placed
with the Custodian or with Subcustodians or other Banking Institutions as the
Fund may determine. Deposits may be denominated in U.S.
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Dollars or other currencies and need not be evidenced by the issuance or
delivery of a certificate to the Custodian, provided that the Custodian shall
include in its records with respect to the assets of the Fund appropriate
notation as to the amount and currency of each such deposit, the accepting
Banking Institution and other appropriate details, and shall retain such forms
of advice or receipt evidencing the deposit, if any, as may be forwarded to the
Custodian by the Banking Institution. Such deposits, other than those placed
with the Custodian, shall be deemed portfolio securities of the Find and the
responsibilities of the Custodian therefor shall be the same as those for demand
deposit bank accounts placed with other banks, as described in Section L of this
Agreement. The responsibility of the Custodian for such deposits accepted on the
Custodian's books shall be that of a U. S. bank for a similar deposit.
N. Foreign Exchange Transactions and Futures Contracts - Pursuant to
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Proper Instructions, to enter into foreign exchange contracts or options to
purchase and sell foreign currencies for spot and future delivery on behalf and
for the account of the Fund. Such transactions may be undertaken by the
Custodian with such Banking Institutions, including the Custodian and
Subcustodian(s) as principals, as approved and authorized by the Fund. Foreign
exchange contracts and options other than those executed with the Custodian,
shall be deemed to be portfolio securities of the Fund and the responsibilities
of the Custodian therefor shall be the same as those for demand deposit bank
accounts placed with other banks as described in Section 2-L of this agreement.
Upon receipt of Proper Instructions, to receive and retain confirmations
evidencing the purchase or sale of a futures contract or an option on a futures
contract by the Fund; to deposit and maintain in a segregated account, for the
benefit of any futures commission merchant or to pay to such futures commission
merchant, assets designated by the Fund as initial, maintenance or variation
"margin" deposits intended to secure the Fund's performance of its obligations
under any futures contracts purchased or sold or any options on futures
contracts
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written by the Fund, in accordance with the provisions of any agreement or
agreements among any of the Fund, the Custodian and such futures commission
merchant, designated to comply with the rules of the Commodity Futures Trading
Commission and/or any contract market, or any similar organization or
organizations, regarding such margin deposits; and to release and/or transfer
assets in such margin accounts only in accordance with any such agreements or
rules.
O. Stock Loans - Upon receipt of Proper Instructions, to deliver
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securities of the Fund, in connection with loans of securities by the Fund, to
the borrower thereof prior to receipt of the collateral, if any, for such
borrowing, provided that for stock loans secured by cash collateral the
Custodian's instructions to the Securities System require that the Securities
System may deliver the securities to the borrower thereof only upon receipt of
the collateral for such borrowing.
P. Collections - To collect, receive and deposit in said account or
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accounts all income, payments of principal and other payments with respect to
the securities held hereunder, and in connection therewith to deliver the
certificates or other instruments representing the securities to the issuer
thereof or its agent when securities are called, redeemed, retired or otherwise
become payable; provided, that the payment is to be made in such firm and
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manner, and at such time, which may be after delivery by the Custodian of the
instrument representing the security, as is in accordance with the terms of the
instrument representing the security, or such Proper Instructions as the
Custodian may receive, or governmental regulations, the rules of Securities
Systems or other U.S. securities depositories and clearing agencies or, with
respect to securities referred to in clause (iii) of the last sentence of
Section 2D, in accordance with generally accepted trade practice; (ii) to
execute ownership and other certificates and affidavits for all federal and
state tax purposes in connection with receipt of income or other payments with
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respect to securities of the Fund or in connection with transfer of securities,
and (iii) pursuant to Proper Instructions to take such other actions with
respect to collection or receipt of funds or transfer of securities which
involve an investment decision. The Custodian shall promptly notify the Fund in
writing by facsimile transmission or in such other manner as the Fund and the
Custodian may agree in writing if any amount payable with respect to portfolio
securities or other assets of the Fund is not received by the Custodian when
due.
Q. Dividends. Distributions and Redemptions - Upon receipt of Proper
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Instructions from the Fund, or upon receipt of instructions from the Fund's
shareholder servicing agent or agent with comparable duties (the "Shareholder
Servicing Agent") (given by such person or persons and in such manner on behalf
of the Shareholder Servicing Agent as the Fund shall have authorized), the
Custodian shall release funds or securities to the Shareholder Servicing Agent
or otherwise apply funds or securities, insofar as available, for the payment of
dividends or other distributions to Fund shareholders. Upon receipt of Proper
Instructions from the Fund, or upon receipt of instructions from the Shareholder
Servicing Agent (given by such person or persons and in such manner on behalf of
the Shareholder Servicing Agent as the Fund shall have authorized), the
Custodian shall release funds or securities, insofar as available, to the
Shareholder Servicing Agent or as such Agent shall otherwise instruct for
payment to Fund shareholders who have delivered to such Agent a request for
repurchase or redemption of their shares of capital stock of the Fund.
R. Proxies, Notices, Etc. - Promptly to deliver or mail to the Fund
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all forms of proxies and all notices of meetings and any other notices or
announcements affecting or relating to securities owned by the Fund that are
received by the Custodian, and upon receipt of Proper Instructions, to execute
and deliver or cause its nominee to execute and deliver such proxies or
-9-
other authorizations as may be required. Neither the Custodian nor its nominee
shall vote upon any of such securities or execute any proxy to vote thereon or
give any consent or take any other action with respect thereto (except as
otherwise herein provided) unless ordered to do so by Proper Instructions.
S. Nondiscretionary Details - Without the necessity of express
------------------------
authorization from the Fund, (1) to attend to all nondiscretionary details in
connection with the sale, exchange, substitution, purchase, transfer or other
dealings with securities, funds or other property of the Portfolio held by the
Custodian except as otherwise directed from time to time by the Trustees of the
Trust, and (2) to make payments to itself or others for minor expenses of
handling securities or other similar items relating to the Custodian's duties
under this Agreement, provided that all such payments shall be accounted for to
the Fund.
T. Bills - Upon receipt of Proper Instructions, to pay or cause to
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be paid, insofar as funds are available for the purpose, bills, statements and
other obligations of the Fund (including but not limited to interest charges,
taxes, management fees, compensation to Fund officers and employees, and other
operating expenses of the Fund).
U. Deposit of Fund Assets in Securities Systems - The Custodian may
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deposit and/or maintain securities owned by the Fund in (i) The Depository Trust
Company, (ii) any book-entry system as provided is Subpart O of Treasury
Circular Xx. 000, 00 XXX 000. Subpart B of 31 CFR Part 350, or the book-entry
regulations of federal agencies substantially in the form of Subpart O, or (iii)
any other domestic clearing agency registered with the Securities and Exchange
Commission ("SEC") under Section 17A of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") which acts as a securities depository and whose use
the Fund has previously approved in writing (each of the foregoing being
referred to in this Agreement as a
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"Securities System"). Utilization of a Securities System shall be in accordance
with applicable Federal Reserve Hoard and SEC rules and regulations, if any, and
subject to the following provisions:
1) The Custodian may deposit and/or maintain Fund securities,
either directly or through one or more Agents appointed by the Custodian
(provided that any such agent shall be qualified to act as a custodian of the
Fund pursuant to the Investment Company Act of 1940, as amended (the "Investment
Company Act") and the rules and regulations thereunder), in a Securities System
provided that such securities are represented in an account ("Account") of the
Custodian or such Agent in the Securities System which shall not include any
assets of the Custodian or Agent other than assets held as a fiduciary,
custodian, or otherwise for customers;
2) The records of the Custodian with respect to securities of
the Fund which are maintained in a Securities System shall identify by book-
entry those securities belonging to the Fund:
3) The Custodian shall pay for securities purchased for the
account of the Fund upon (i) receipt of advice from the Securities System that
such securities have been transferred to the Account, and (ii) the making of an
entry on the records of the Custodian to reflect such payment and transfer for
the account of the Fund. The Custodian shall transfer securities sold for the
account of the Fund upon (i) receipt of advice from the Securities System that
payment for such securities has been transferred to the Account, and (ii) the
making of an entry on the records of the Custodian to reflect such transfer and
payment for the account
-11-
of the Fund. Copies of all advices from the Securities System of
transfers of securities for the account of the Fund shall identify the
Fund, be maintained for the Fund by the Custodian or an Agent as
referred to above, and be provided to the Fund at its request. The
Custodian shall furnish the Fund confirmation of each transfer to or
from the account of the Fund in the form of a written advice or notice
and shall furnish to the Fund copies of daily transaction sheets
reflecting each day's transactions in the Securities System for the
account of the Fund on the next business day;
4) The Custodian shall provide the Fund with any report obtained by
the Custodian or any Agent as referred to above in the Securities
System's accounting system, internal accounting control and procedures
for safeguarding securities deposited in the Securities System; and
the Custodian and such Agents shall send to the Fund such reports on
their own systems of internal accounting control as the Fund may
reasonably request from time to time.
5) At the written request of the Fund, the Custodian will terminate
the use of any such Securities System on behalf of the Fund as
promptly as practicable.
V. Other Transfers - Upon receipt of Proper Instructions, to deliver
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securities, funds and other property of the Fund to a Subcustodian or another
custodian of the Fund; and, upon receipt of Proper Instructions, to make such
other disposition of securities, funds or other property of the Fund in a manner
other than or for purposes other than as enumerated elsewhere in this Agreement,
provided that the instructions relating to such disposition shall state the
amount of securities to be delivered and the name of the person or persons to
whom delivery is to be made.
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W. Investment Limitations - In performing its duties generally, and
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more particularly in connection with the purchase, sale and exchange of
securities made by or for the Fund, the Custodian may assume unless and until
notified in writing to the contrary that Proper Instructions received by it are
not in conflict with or in any way contrary to any provisions of the Trust's
Declaration of Trust or By-Laws or votes or proceedings of the shareholders or
Trustees of the Trust. The Custodian shall in no event to liable to the Fund or
the Trust and shall be indemnified by the Fund for any violation which occurs in
the course of carrying out instructions given by the Fund of any investment
limitations to which the Fund is subject or other limitations with respect to
the Fund's powers to make expenditures, encumber securities, borrow or take
similar actions affecting the Fund.
X. Restricted Securities - Notwithstanding any other provision of
---------------------
this Agreement, the Custodian shall not be liable for failure to take any action
in respect of a "restricted security" (as hereafter defined) if the Custodian
has not received Proper instructions to take such action (including but not
limited to the failure to exercise in a timely manner any right in respect of
any restricted security) unless the Custodian's responsibility to take such
action is set forth in a writing, agreed upon by the Custodian and the Fund or
the investment adviser of the Fund, which specifies particular actions the
Custodian is to take without Proper Instructions in respect of specified rights
and obligations pertaining to a particular restricted security. Further, the
Custodian shall not be responsible for transmitting to the Fund information
concerning a restricted security, such as with respect to exercise periods and
expiration dates for rights relating to the restricted security, except such
information which the Custodian actually receives or which is published in a
source which is publicly distributed and generally recognized as a major source
of information with respect to corporate actions of securities similar to the
particular restricted security. As used herein, the term "restricted securities"
shall mean securities which are subject
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to restrictions on transfer, whether by reason of contractual restrictions or
federal, state or foreign securities or similar laws, or securities which have
special rights or contractual features which do not apply to publicly-traded
shares of, or comparable interests representing, such security.
Y. Proper Instructions - Proper Instructions shall mean a tested
-------------------
telex from the Fund or a written request, direction, instruction or
certification signed or initialed on behalf of the Fund by one or more person or
persons as the Hoard of Trustees of the Trust shall have from time to time
authorized, provided, however, that no such instructions directing the delivery
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of securities or the payment of funds to an authorized signatory of the Fund
shall be signed by such person. Those persons authorized to give Proper
Instructions may be identified by the Board of Trustees by name, title or
position and will include at least one officer empowered by the Board to name
other individuals who are authorized to give Proper Instructions on behalf of
the Fund. Telephonic or other oral instructions or instructions given by
facsimile transmission may be given by any one of the above persons and will be
considered Proper Instructions if the Custodian reasonably believes them to have
been given by a person authorized to give such instructions with respect to the
transaction involved. Oral instructions will be confirmed by tested telex or in
writing in the manner set forth above but the lack of such confirmation shall in
no way affect any action taken by the Custodian in reliance upon such oral
instructions. The Fund authorizes the Custodian to tape record any and all
telephonic or other oral instructions given to the Custodian by or on behalf of
the Fund (including any of the Fund's or the Trust's officers. Trustees,
employees or agents) and will deliver to the Custodian a similar authorization
from any investment manager or adviser or person or entity with similar
responsibilities which is authorized to give Proper Instructions on behalf of
the Fund to the Custodian. Proper Instructions may relate to specific
transactions or to types or classes of transactions, and may be in the form of
standing instructions.
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Proper Instructions may include communications effected directly between
electro-mechanical or electronic devices or systems, in addition to tested
telex, provided that the Fund s-s the Custodian agree to the use of such device
or system.
Z. Segregated Account - The Custodian shall upon receipt of Proper
------------------
Instructions establish and maintain on its books a segregated account or
accounts for and on behalf of the Fund, into which account or accounts may be
transferred cash and/or securities of the Fund, including securities maintained
by the Custodian pursuant to Section 2U hereof, (i) in accordance with the
provisions of any agreement among the Fund, the Custodian and a broker-dealer
registered under the Exchange Act and a member of the National Association of
Securities Dealers, Inc. (or any futures commission merchant registered under
the Commodity Exchange Act) relating to compliance with the rules of the Options
Clearing Corporation and of any registered national securities exchange (or the
Commodity Futures Trading Commission ("CFTC") or any registered contract
market), or any similar organization or organizations, regarding escrow or other
arrangements in connection with transactions by the Fund, (ii) for purposes of
segregating cash or securities in connection with options purchased, sold or
written by the Fund or commodity futures contracts or options thereon purchased
or sold by the Fund, (iii) for the purposes of compliance by the Fund with the
procedures required by Investment Company Act Release No. 10666, or any
subsequent release or releases of the SEC relating to the maintenance of
segregated accounts by registered investment companies, and (iv) as mutually
agreed from time to time between the Fund and the Custodian.
3. Powers and Duties of the Custodian with Respect to the Appointment of
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Subcustodians: The Custodian may, at any time and from time to time, appoint any
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bank, trust company or other entity meeting the requirements of a custodian or
an "eligible foreign
-15-
custodian" under the Investment Company Act and the rules and regulations
thereunder or by order of the SEC exempted therefrom to act as Subcustodian for
the Fund, to hold securities, funds and other property of the Fund which are
maintained outside the United States. Any such bank, trust company or other
entity appointed pursuant to the provisions of this Section 3 (as herein defined
to as a "Subcustodian"). The Fund shall approve in writing (1) the appointment
of each Subcustodian and the subcustodian agreement to be entered into between
such Subcustodian and the Custodian, and (2) if the Subcustodian is organized
under the laws of a country other than the United States, the country or
countries in which the Subcustodian is authorized to hold securities, cash and
other property of the Fund. The Fund hereby further authorizes and instructs the
Custodian and any Subcustodian to utilize such securities depositories and
clearing agencies located outside the United States which are approved in
writing by the Fund to hold securities, cash and other property of the Fund.
Upon such approval by the Fund, the Custodian is authorized on behalf of the
Fund to notify each Subcustodian of its appointment as such. The Custodian may,
at any time in its discretion, remove any Subcustodian that has been appointed
as such but will promptly notify the Fund of any such action.
Those Subcustodians, and the countries where and the securities
depositories and clearing agencies through which they or the Custodian may hold
securities, cash and other property of the Fund which the Fund has approved to
date are set forth on Appendix A hereto. Such Appendix shall be amended from
time to time as Subcustodians, and/or countries and/or securities depositories
and clearing agencies are changed, added or deleted. The Fund shall be
responsible for informing the Custodian sufficiently in advance of a proposed
investment which is to be held in a country not listed on Appendix A, in order
that there shall be sufficient time for the Fund to give the approval required
by the preceding paragraph and for the Custodian to put the appropriate
arrangements in place with such Subcustodian, including negotiation of a
-16-
subcustodian agreement and submission of such subcustodian agreement to the Fund
for approval.
If the Fund shall have invested in a security to be held in a country
before the foregoing procedures have been completed, such security shall be held
by such agent as the Custodian may appoint. In any event, the Custodian shall be
liable to the Fund for the actions of such agent if and only to the extent the
Custodian shall have recovered from such agent for any damages caused the Fund
by such agent. At the request of the Fund, Custodian agrees to remove any
securities held on behalf of the Fund by such agent, if practical, to an
approved Subcustodian. Under such circumstances the Custodian will collect
income and respond to corporate actions on a best efforts basis.
Upon request of the Fund, the Custodian shall deliver to the Fund a
certificate stating: (i) the identity of each foreign Subcustodian then acting
on behalf of the Custodian: (ii) the countries in which and the securities
depositories and clearing agents through which each such foreign Subcustodian is
then holding cash, securities and other assets of the Fund; and (iii) such other
information as may be requested by the Fund to ensure compliance with Rule
17(f)-5 under the Investment Company Act.
With respect to securities and funds held by a Subcustodian, either
directly or indirectly (including by a securities depository or clearing
agency), notwithstanding any provision of this Agreement to the contrary,
payment for securities purchased and delivery of securities sold may be made
prior to receipt of the securities or payment, respectively, and securities or
payment may be received in a form, in accordance with governmental regulations,
rules of securities depositories and clearing agencies, or generally accepted
trade practice in the applicable local market.
-17-
With respect to the securities and funds held by a Subcustodian, either
directly or indirectly, (including by a securities depository or a clearing
agency) including demand and interest bearing deposits, currencies or other
deposits and foreign exchange contracts as referred to in Sections 2L, 2M or 2N,
the Custodian shall be liable to the Fund if and only to the extent that such
Subcustodian is liable to the Custodian and the Custodian recovers under the
applicable subcustodian agreement. The Custodian shall nevertheless be liable to
the Fund for its own negligence in transmitting any instructions received by it
from the Fund and for its own negligence in connection with the delivery of any
securities or funds held by it to any such Subcustodian.
In the event that any Subcustodian appointed pursuant to the provisions of
this Section 3 fails to perform any of its obligations under the terms and
conditions of the applicable subcustodian agreement, the Custodian shall use its
best efforts to cause such Subcustodian to perform such obligations. In the
event that the Custodian is unable to cause such Subcustodian to perform fully
its obligations thereunder, the Custodian shall forthwith upon the Fund's
request terminate such Subcustodian in accordance with the termination
provisions under the applicable subcustodian agreement and, if necessary or
desirable, appoint another subcustodian in accordance with the provisions of
this Section 3. At the election of the Fund, it shall have the right to enforce,
to the extent permitted by the subcustodian agreement and applicable law, the
Custodian's rights against any such Subcustodian for loss or damage caused the
Fund by such Subcustodian.
The Custodian will not amend any subcustodian agreement or agree to change
or permit any changes thereunder except upon the prior written approval of the
Fund.
-18-
The Custodian may, at any time in its discretion upon notification to the
Fund, terminate any Subcustodian of the Fund in accordance with the termination
provisions under the applicable Subcustodian Agreement, and at the written
request of the Fund, the Custodian will terminate any Subcustodian in accordance
with the termination provisions under the applicable Subcustodian Agreement.
If necessary or desirable, the Custodian may appoint another subcustodian
to replace a Subcustodian terminated pursuant to the foregoing provisions of
this Section 3, such appointment to be made upon approval of the successor
subcustodian by the Fund's Board of Directors or Trustees in accordance with the
provisions of this Section 3.
In the event the Custodian receives a claim from a Subcustodian under the
indemnification provisions of any subcustodian agreement, the Custodian shall
promptly give written notice to the Fund of such claim. No more than thirty days
after written notice to the Fund of the Custodian's intention to make such
payment, the Fund will reimburse the Custodian the amount of such payment except
in respect of any negligence or misconduct of the Custodian.
4. Assistance by the Custodian as to Certain Matters: The Custodian may
-------------------------------------------------
assist generally in the preparation of reports to Fund shareholders and others,
audits of accounts, and other ministerial matters of like nature.
5. Powers and Duties of the Custodian with Respect to Records: The
----------------------------------------------------------
Custodian shall have and perform the following duties with respect to
recordkeeping:
A. Records - To create, maintain and retain such records
-------
relating to its activities and obligations under this Agreement as are required
under the Investment Company Act and the rules and regulations thereunder
(including Section 31 thereof and Rules 31a-1 and 31a-2
-19-
thereunder) and under applicable Federal and State tax laws. All such records
will be the property of the Fund and in the event of termination of this
Agreement shall be delivered to the successor custodian.
B. Accounts - To keep books of account and render statements,
--------
including interim monthly and complete quarterly financial statements, or copies
thereof, from time to time as reasonably requested by Proper Instructions.
C. Access to Records - The books and records maintained by the
-----------------
Custodian pursuant to Sections 5A and 5B shall at all times during the
Custodian's regular business hours be open to inspection and audit by officers
of, attorneys for and auditors employed by the Fund and by employees and agents
of the SEC, provided that all such individuals shall observe all security
requirements of the Custodian applicable to its own employees having access to
similar records within the Custodian and such regulations as may be reasonably
imposed by the Custodian.
6. Standard of Care and Related Matters:
------------------------------------
A. Liability of the Custodian with Respect to Proper Instructions:
--------------------------------------------------------------
Evidence of Authority; Etc. - The Custodian shall not be liable for any action
--------------------------
taken or omitted in reliance upon Proper Instructions believed by it to be
genuine of upon any other written notice, request, direction, instruction,
certificate or other instrument believed by it to be genuine and signed by the
proper party or parties.
The Secretary or Assistant Secretary of the Trust shall certify to the
Custodian the names, signatures and scope of authority of all persons authorized
to give Proper Instructions or any other such notice, request, direction,
instruction, certificate or instrument on behalf of the Fund,
-20-
the names and signatures of the officers of the Trust, the name and address of
the Shareholder Servicing Agent, and any resolutions, votes. instructions or
directions of the Trust's Board of Trustees or shareholders. Such certificate
may be accepted and relied upon by the Custodian as conclusive evidence of the
facts set forth therein and may be considered in full force and effect until
receipt of a similar certificate to the contrary.
So long as and to the extent that it is in the exercise of reasonable care,
the Custodian shall not be responsible for the title, validity or genuineness of
any property or evidence of title thereto received by it or delivered by it
pursuant to this Agreement.
The Custodian shall be entitled, at the reasonable expense of the Fund, to
receive and act upon advice of (i) counsel regularly retained by the Custodian
in respect of custodian matters, (ii) counsel for the Fund, or (iii) such other
counsel as the Fund and the Custodian may agree upon, with respect to all
matters, and the Custodian shall be without liability for any action reasonably
taken or omitted pursuant to such advice.
B. Liability of the Custodian with Respect to Use of Securities
------------------------------------------------------------
System - With respect to the portfolio securities, cash and other property of
------
the Fund held by a Securities System, the Custodian shall be liable to the Fund
only for any loss or damage to the Fund resulting from use of the Securities
System if caused by any negligence, misfeasance or misconduct of the Custodian
or any of its agents or of any of its or their employees or from any failure of
the Custodian or any such agent to enforce effectively such rights as it may
have against the Securities System. At the election of the Fund, it shall be
entitled to be subrogated to the rights of the Custodian with respect to any
claim against the Securities System or any other person which the Custodian may
have as a consequence of any such loss or damage to the Fund if and to the
extent that the Fund has not been made whole for any such loss or damage.
-21-
C. Standard of Care; Liability; Indemnification - Except as may
--------------------------------------------
otherwise be set forth in this Agreement, the Custodian shall be held only to
the exercise of reasonable care and diligence in carrying out the provisions of
this Agreement, provided that the Custodian shall not thereby be required to
take any action which is in contravention of any applicable law. The Fund agrees
to indemnify and hold harmless the Custodian and its nominees from all claims
and liabilities (including counsel fees) incurred or assessed against it or its
nominees in connection with the performance of this Agreement, except such as
may arise from its or its nominee's breach of the relevant standard of conduct
set forth in this Agreement. Without limiting the foregoing indemnification
obligation of the Fund, the Fund agrees to indemnify the Custodian and any
nominee in whose name portfolio securities or other property of the Fund is
registered against any liability the Custodian or such nominee may incur by
reason of taxes assessed to the Custodian or such nominee or other costs,
liability or expense incurred by the Custodian or such nominee resulting
directly or indirectly from the fact that portfolio securities or other property
of the Fund is registered in the name of the Custodian or such nominee.
It is also understood that the Custodian shall not be liable for any loss
involving any securities, currencies, deposits or other property of the Fund,
whether maintained by it, a Subcustodian, a securities depository, an agent of
the Custodian or a Subcustodian, a Securities System, or a Banking Institution,
or for any loss arising from a foreign currency transaction or contract, where
the loss results from a Sovereign Risk or where the entity maintaining such
securities, currencies, deposits or other property of the Fund, whether the
Custodian, a Subcustodian, a securities depository, an agent of the Custodian or
a Subcustodian, a Securities System or a Banking Institution, has exercised
reasonable care maintaining such property or in connection with the transaction
involving such property. A "Sovereign Risk" shall mean nationalization,
expropriation, devaluation, revaluation, confiscation, seizure, cancellation,
-22-
destruction or similar action by any governmental authority, de facto or de
jure; or enactment, promulgation, imposition or enforcement by any such
governmental authority of currency restrictions, exchange controls, taxes,
levies or other charges affecting the Fund's property; or acts of war,
terrorism, insurrection or revolution; or any other act or event beyond the
Custodian's control.
D. Reimbursement of Advances - The Custodian shall be entitled to
-------------------------
receive reimbursement from the Fund on demand, in the manner provided in section
7, for its cash disbursements, expenses and charges (including the fees and
expenses of any Subcustodian or any Agent) in connection with this Agreement,
but excluding salaries and usual overhead expenses.
E. Security for Obligations to Custodian - If the Fund shall require
-------------------------------------
the Custodian to advance cash or securities for any purpose for the benefit of
the Fund, including in connection with foreign exchange contracts or options
(collectively, an "Advance"), or if the Custodian or any nominee thereof shall
incur or be assessed any taxes, charges, expenses, assessments, claims or
liabilities in connection with the performance of this Agreement (collectively a
"Liability"), except such as may arise from its or such nominee's breach of the
relevant standard of conduct set forth in this Agreement, then in such event any
property at any time held for the account of the Fund by the Custodian or a
Subcustodian shall be security for such Advance or Liability and if the Fund
shall fail to repay or indemnify the Custodian promptly, the Custodian shall be
entitled to utilize available cash and to dispose of the Fund's property,
including securities, to the extent necessary to obtain reimbursement or
indemnification.
F. Appointment of Agents - The Custodian may at any time or times in
---------------------
its discretion appoint (and may at any time remove) any other bank or trust
company as its agent (an
-23-
"Agent") to carry out such of the provisions of this Agreement as the Custodian
may from time to time direct, provided, however, that the appointment of such
Agent (other than an Agent appointed pursuant to the third paragraph of Section
3) shall not relieve the Custodian of any of its responsibilities under this
Agreement.
X. Xxxxxx of Attorney - Upon request, the Fund shall deliver to the
------------------
Custodian such proxies, powers of attorney or other instruments as may be
reasonable and necessary or desirable in connection with the performance by the
Custodian or any Subcustodian of their respective obligations under this
Agreement or any applicable subcustodian agreement.
7. Compensation of the Custodian: The Fund shall pay the Custodian a
-----------------------------
custody fee based on such fee schedule as may from time to time be agreed upon
in writing by the Custodian and the Fund. Such fee, together with all amounts
for which the Custodian is to be reimbursed in accordance with Section 6D, shall
be billed to the Fund and be paid in cash by a direct cash payment to the
Custodian.
8. Termination; Successor Custodian: This Agreement shall continue in full
--------------------------------
force and effect until terminated by either party by an instrument in writing
delivered or mailed, postage prepaid, to the other party, such termination to
take effect not sooner than seventy five (75) days after the date of such
delivery or mailing. In the event of termination the Custodian shall be entitled
to receive prior to delivery of the securities, funds and other property held by
it all accrued fees and unreimbursed expenses the payment of which is
contemplated by Sections 6D and 7, upon receipt by the Fund of a statement
setting forth such fees and expenses.
In the event of the appointment of a successor custodian, it is agreed that
the funds and securities owned by the Fund and held by the Custodian or any
Subcustodian shall be delivered
-24-
to the successor custodian, and the Custodian agrees to cooperate with the Fund
in execution of documents and performance of other actions necessary or
desirable in order to substitute the successor custodian for the Custodian under
this Agreement.
9. Amendment: This Agreement constitutes the entire understanding and
---------
agreement of the parties hereto with respect to the subject matter hereof. No
provision of this Agreement may be amended or terminated except by a statement
in writing signed by the party against which enforcement of the amendment or
termination is sought.
In connection with the operation of this Agreement, the Custodian and the
Fund may agree in writing from time to time on such provisions interpretative of
or in addition to the provisions of this Agreement as may in their joint opinion
be consistent with the general tenor of this Agreement. No interpretative or
additional provisions made as provided in the preceding sentence shall be deemed
to be an amendment of this Agreement.
The section headings in this Agreement are for the convenience of the
parties and in no way alter, amend, limit or restrict the contractual
obligations of the parties set forth in this Agreement.
10. Governing Law: This instrument is executed and delivered in The
-------------
Commonwealth of Massachusetts and shall be governed by and construed according
to the laws of said Commonwealth.
11. Notices: Notices and other writings delivered or mailed postage prepaid
to the Fund addressed to the Fund at 000 Xxxx Xxxxxx. Xxx Xxxx, Xxx Xxxx 00000
or to such other address as the Fund may have designated to the Custodian in
writing, or to the Custodian at 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000,
Attention: Manager, Securities Department, or to such
-25-
other address as the Custodian may have designated to the Fund in writing, shall
be deemed to have been properly delivered or given hereunder to the respective
addressee.
12. Binding Effect: This Agreement shall be binding on and shall inure to
--------------
the benefit of the Fund and the Custodian and their respective successors and
assigns, provided that neither party hereto may assign this Agreement or any of
its rights or obligations hereunder without the prior written consent of the
other party.
13. Counterparts: This Agreement may be executed in any number of
------------
counterparts, each of which shall be deemed an original. This Agreement shall
become effective when one or more counterparts have been signed and delivered by
each of the parties.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed in its name and behalf on the day and year first above written.
BEAR XXXXXXX INVESTMENT TRUST XXXXX BROTHERS XXXXXXXX & CO.
By: /s/ Xxxxx X. Xxxxxxx per pro: /s/ Xxxxxxx Xxxxxxx
----------------------------- ---------------------------
-26-
XXXXX BROTHERS XXXXXXXX & CO. - GLOBAL CUSTODY NETWORK
BEAR XXXXXXX INVESTMENT TRUST - EMERGING MARKETS DEBT FUND
APPENDIX A
COUNTRY SUBCUSTODIAN CENTRAL DEPOSITARY
------- ------------ ------------------
ARGENTINA CITIBANK N.A., BUENOS AIRES AGMT 07/16/81* CDV
BRAZIL THE FIRST NATIONAL BANK OF BOSTON AGMT 01/05/88 BOVESPA
CLC
CHILE CITIBANK N.A., XXXXXXXX AGMT 7/16/81 NONE
COLOMBIA CITITRUST COLOMBIA S.A. SOCIEDAD FIDUCIARIA NONE
CITIBANK N.A. AGMT 07/16/81*
CITIBANK SUBSIDIARY AMENDMENT 08/07/92
CITIBANK N.A./CITITRUST COLOMBIA AGMT 12/02/91
MEXICO CITIBANK N.A., MEXICO CITY AGMT 7/16/81* INDEVAL
PERU CITIBANK N.A., LIMA AGMT 07/16/81* CAVAL
TRANSNATIONAL XXXXX BROTHERS XXXXXXXX & CO. EUROCLEAR
CEDEL
URUGUAY CITIBANK N.A., MONTEVIDEO AGMT 07/16/81* NONE
VENEZUELA CITIBANK N.A., CARACAS AGMT 07/16/81* NONE
* CITIBANK N.A. AGREEMENT AMENDMENT DATED 08/31/90
I HEREBY CERTIFY THAT AT ITS MEETING ON JANUARY 8, 1993 THE BOARD APPROVED THE
COUNTRIES, SUBCUSTODIANS, AGREEMENTS, AND CENTRAL DEPOSITORIES LISTED ON THIS
APPENDIX.
/s/ Xxxxx X. Xxxxxxx 1/8/93
------------------------------ ------------------
(SIGNATURE) (DATE)
Vice President and Treasurer
-------------------------------------
(TITLE)
-27-
AMENDMENT TO THE CUSTODIAN AGREEMENT
------------------------------------
AMENDMENT entered into as of this 15th day of May, 1997 to the Custodian
Agreement among BEAR XXXXXXX INVESTMENT TRUST (the "Trust") and XXXXX BROTHERS
XXXXXXXX & CO. (the "Custodian") dated as of the 8th day of January, 1993 (the
"Agreement").
In consideration of the mutual covenants herein contained, the Trust and
the Custodian agree that the Agreement is hereby amended as follows:
1. Section 2.L. Demand Deposit Bank Accounts - is replaced in its
-----------------------------------------
entirety with the following:
L. Demand Deposit Bank Accounts - To open and operate an account or
-----------------------------
accounts in the name of the Trust, subject only to draft or order by the Trust,
and to hold in such account or accounts deposits accepted on the Custodian's
books denominated in U.S. and foreign currency, received for the account of the
Trust, other than deposits with Banking Institutions held in accordance with the
last paragraph of this Section 2.L. The obligation of the Custodian for deposits
accepted on the Custodian's books and denominated in U.S. currency shall be that
of a U.S. bank for a similar deposit. The obligation of the Custodian for
deposits denominated in any foreign currency shall have the benefit of and be
subject to the provisions of the last paragraph of Section 6.C of the Agreement
as amended hereof, and accordingly in the event and to the extent the Custodian
shall be unable to make payment due to a Sovereign Risk or other factor
described in the first sentence of said paragraph from any bank, trust company
or similar institution with which the Custodian has in turn deposited funds
denominated in a foreign currency by reason of the Custodian's foreign currency
deposit obligation to the Trust, the Custodian's obligation to pay the Trust in
respect of such foreign currency obligation shall similarly be deferred or
relieved until and to the extent the Custodian is able to obtain payment in
respect of the Custodian's foreign deposit from such bank, trust company or
similar institution and accordingly shall not be payable on demand in U.S.
currency.
If and when authorized by Proper Instructions, the Custodian may open and
operate an additional account(s) in such other banks, trust companies or similar
institutions as may be designated by the Trust in such instructions (any such
bank, trust company or similar institution so designated by the Trust being
referred to hereafter as a "Banking Institution"), and may hold in such account
or accounts deposits of the Trust denominated in U.S. or foreign currency,
provided that such account(s) (hereinafter collectively referred to as "demand
deposit bank accounts") shall be in the name of the Custodian or a nominee of
the Custodian for the account of the Trust or for the account of the Custodian's
customers generally and shall be subject only to the Custodian's draft or order;
provided that any such demand deposit bank account shall contain only assets
held by the Custodian as a fiduciary or custodian for the Trust and/or other
customers and that the records of the Custodian shall indicate at all times the
Trust and/or other customers for which such funds are held in such account and
the respective interests therein. Such demand deposit accounts may be opened
with Banking Institutions in the United States and in other countries and may be
denominated in either U.S. Dollars or other currencies as the Trust may
determine. The records for each such account will be maintained by the Custodian
but the
-28-
deposits in any such account shall not constitute a deposit liability of the
Custodian. All such deposits, including with Subcustodians, shall be deemed to
be portfolio securities of the Trust and accordingly the responsibility of the
Custodian therefor shall be the same as and no greater than the Custodian's
responsibility in respect of other portfolio securities of the Trust. The
authorization by the Trust to appoint a Subcustodian as such shall also
constitute a proper instruction to open a demand deposit bank account subject to
the provisions of this paragraph with such Subcustodian.
2. Section 2M. Interest Bearing Call or Time Deposits - is replaced in its
--------------------------------------------------
entirety with the following:
M. Interest Bearing Call or Time Deposits - To place interest bearing
--------------------------------------
fixed term and call deposits with such banks and in such amounts as the Trust
may authorize pursuant to Proper Instructions. Such deposits may be placed with
the Custodian or with Subcustodians or other Banking Institutions as the Trust
may determine, in the name of the Custodian or a nominee of the Custodian for
the account of the Trust or the account of the Custodian's customers generally
and subject only to the Custodian's draft or order; provided that any such
deposit shall be held in an account containing only assets held by the Custodian
as a fiduciary or custodian for the Trust and/or other customers and that the
records of the Custodian shall indicate at all times the Trust and/or other
customers for which such fiends are held in such account and the respective
interests therein. Deposits may be denominated in U. S. Dollars or other
currencies and need not be evidenced by the issuance or delivery of a
certificate to the Custodian, provided that the Custodian shall include in its
records with respect to the assets of the Trust appropriate notation as to the
amount and currency of each such deposit, the accepting Banking Institution and
other appropriate details, and shall retain such forms of advice or receipt
evidencing the deposit, if any, as may be forwarded to the Custodian by the
Banking Institution. Funds, other than those accepted on the Custodian's books
as a deposit, but including those placed with Subcustodians, shall be deemed
portfolio securities of the Trust and the responsibilities of the Custodian
therefor shall be the same as those for demand deposit bank accounts placed with
other banks, as described in the section 2.M. of this Agreement as amended. The
responsibility of the Custodian for funds accepted on the Custodian's books as a
deposit shall be that of a U. S. bank for a similar deposit.
3. Section 6C. - Standard of Care: Liability: Indemnification - is hereby
----------------------------------------------------------
amended by inserting the following at the end of said section:
The Trust bears all risks of holding or transacting in any currency.
Without limiting the generality of the foregoing, the Trust bears all risks that
rules or procedures imposed by Securities Depositories, exchange controls, asset
freezes or other laws or regulations shall prohibit or impose burdens on or
costs relating to the transfer of, by or for the account of the Trust's cash or
currency held outside the United States or denominated in a currency other than
U.S. dollars or on the conversion of any currency so held. The Custodian shall
in no event be obligated to substitute another currency (including U.S. dollars)
for a currency whose transferability, convertibility or availability has been
affected by any such law, regulation, rule or
-29-
procedure. Neither the Custodian nor any Subcustodian or other agent of the
Custodian shall be liable to the Trust for any loss or delay which results from
the foregoing events.
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.
BEAR XXXXXXX INVESTMENT TRUST
/s/ Xxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President & Treasurer
XXXXX BROTHERS XXXXXXXX & CO
/s/ Xxxxxxx X. Giarruso
---------------------------------
Name Xxxxxxx X. Xxxxxxxxx
Title: Senior Manager
-30-
