EXHIBIT 8
XXXXXXXX SERIES TRUST II
GLOBAL CUSTODY AGREEMENT
AGREEMENT, dated as of December 9, 1997, between The Chase Manhattan
Bank (the "Bank") and Xxxxxxxx Series Trust II (the "Customer") on behalf of
each series of the Customer listed in Schedule A hereto (each series, a "Fund").
SECTION 1. CUSTOMER ACCOUNTS
The Bank agrees to establish and maintain the following accounts
("Accounts"):
(a) A custody account in the name of the Customer ("Custody
Account") for any and all 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
the Bank or its Subcustodian (as defined in Section 3) for the
account of the Customer ("Securities"); and
(b) A deposit account in the name of the Customer ("Deposit
Account") for any and all cash in any currency received by the
Bank or its Subcustodian for the account of the Customer,
which cash shall not be subject to withdrawal by draft or
check.
The Customer warrants its authority to: 1) deposit the cash and Securities
("Assets") received in the Accounts and 2) give Instructions (as defined in
Section 11) concerning the Accounts. The Bank may deliver securities of the same
class in place of those deposited in the Custody Account.
Upon written agreement between the Bank and the Customer, additional
Accounts may be established and separately accounted for as additional Accounts
under the terms of this Agreement.
SECTION 2. MAINTENANCE OF SECURITIES AND CASH AT BANK AND SUBCUSTODIAN LOCATIONS
Unless Instructions specifically require another location acceptable to
the Bank:
(a) Securities will be held in the country or other jurisdiction
in which the principal trading market for such Securities is
located, where such Securities are to be presented for payment
or where such Securities are acquired; and
(b) Cash will 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 the Bank can comply with such
Instructions, the Bank is authorized to maintain cash balances on deposit for
the 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 the Customer may direct, if acceptable to the Bank.
100
If the 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 the Bank and the Customer.
SECTION 3. SUBCUSTODIANS AND SECURITIES DEPOSITORIES
The Bank may act under this Agreement through the Subcustodians listed
in Schedule B of this Agreement with which the Bank has entered into
subcustodial agreements ("Subcustodians"). The Customer authorizes the Bank to
hold Assets in the Accounts in accounts which the Bank has established with one
or more of its branches or Subcustodians. The Bank and Subcustodians are
authorized to hold any of the Securities in their account with any securities
depository in which they participate.
The Bank reserves the right to add new, replace or remove
Subcustodians. The Customer will be given reasonable notice by the Bank of any
amendment to Schedule B. Upon request by the Customer, the Bank will identify
the name, address and principal place of business of any Subcustodian of the
Customer's Assets and the name and address of the governmental agency or other
regulatory authority that supervises or regulates such Subcustodian.
The terms Subcustodian and securities depositories as used in this
Agreement shall mean a branch of a qualified U.S. bank, an eligible
foreign custodian or an eligible foreign securities depository, which
are further defined as follows:
(a) "qualified U.S. Bank" shall mean a qualified U.S. bank as defined
in Rule 17f-5 under the 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 and that has
shareholders' equity in excess of $200 million in U.S. currency
(or a foreign currency equivalent 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 and that has
shareholders' equity in excess of $100 million in U.S. currency
(or a foreign currency equivalent thereof) (iii) a banking
institution or trust company incorporated or organized under the
laws of a country other than the United States or a majority
owned direct or indirect subsidiary of a qualified U.S. bank or
bank holding company that is incorporated or organized under the
laws of a country other than the United States which has such
other qualifications as shall be specified in Instructions and
approved by the Bank; or (iv) any other entity that shall have
been so qualified by exemptive order, rule or other appropriate
action of the SEC; and
(c) "eligible foreign securities depository" shall mean a securities
depository or clearing agency, incorporated or organized under
the laws of a country other than the United States, which
operates (i) the central system for handling securities or
equivalent book-entries in that country, or (ii) a transnational
system for the central handling of securities or equivalent
book-entries.
The Customer represents that its Board of Trustees has approved each of
the Subcustodians listed in Schedule B to this Agreement and the terms of the
subcustody agreements between the Bank and each Subcustodian, which are attached
as to Schedule B, and further represents that its Board has determined that the
use of each Subcustodian and the terms of each subcustody agreement are
consistent with the best interests of the Fund(s) and its (their) shareholders.
The Bank will supply the Customer with any amendment to Schedule B for approval.
The Customer has supplied or will supply the Bank with certified copies of its
Board of Trustees resolutions(s) with respect to the foregoing prior to placing
Assets with any Subcustodian so approved.
101
SECTION 4. USE OF SUBCUSTODIAN
(a) The Bank will identify such Assets on its books as belonging to the
Customer.
(b) A Subcustodian will hold such Assets together with assets
belonging to other customers of the Bank in accounts
identified on such Subcustodian's books as special custody
accounts for the exclusive benefit of customers of the Bank.
(c) Any Assets in the Accounts held by a Subcustodian will be
subject only to the instructions of the Bank or its agent. Any
Securities held in a securities depository for the account of
a Subcustodian will be subject only to the instructions of
such Subcustodian.
(d) Any agreement the Bank enters into with a Subcustodian for
holding its customer's assets shall provide that such assets
will not be subject to any right, charge, security interest,
lien or claim of any kind in favor of such Subcustodian except
for safe custody or administration, and that the beneficial
ownership of such assets will be freely transferable without
the payment of money or value other than for safe custody or
administration. The foregoing shall not apply to the extent of
any special agreement or arrangement made by the Customer with
any particular Subcustodian.
SECTION 5. DEPOSIT ACCOUNT TRANSACTIONS
(a) The Bank or its Subcustodians will make payments from a Deposit
Account upon receipt of Instructions that include all information
required by the Bank. Instructions must be received from one or
more Authorized Person(s) and countersigned or confirmed in
writing by one or more Authorized Person(s) who are different
than the Authorized Person(s) that originated or drafted the
Instructions.
(b) In the event that any payment to be made under this Section 5
exceeds the funds available in a Deposit Account, the Bank, in
its discretion, may advance the Customer such excess amount which
shall be deemed a loan payable on demand, bearing interest at the
rate customarily charged by the Bank on similar loans.
(c) If the Bank credits a Deposit Account on a payable date, or at
any time prior to actual collection and reconciliation to that
Deposit Account, with interest, dividends, redemptions or any
other amount due, the Customer will 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 the Customer does
not promptly return any amount upon such notification, the Bank
shall be entitled, upon oral or written notification to the
Customer, to reverse such credit by debiting the Deposit Account
for the amount previously credited. The 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 the Customer upon Instructions after
consultation with the Customer.
SECTION 6. CUSTODY ACCOUNT TRANSACTIONS
(a) Securities will be transferred, exchanged or delivered by the
Bank or its Subcustodian upon receipt by the Bank of Instructions
which include all information required by the Bank. Settlement
and payment for Securities received for, and delivery of
Securities out of, a 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,
102
including, without limitation, delivery of Securities to a
purchaser, dealer or their agents against a receipt with the
expectation of receiving later payment and free delivery.
Delivery of Securities out of a Custody Account may also be made
in any manner specifically required by Instructions acceptable to
the Bank.
(b) The Bank, in its discretion, may credit or debit an Account on a
contractual settlement date with cash or Securities with respect
to any sale, exchange or purchase of Securities. Otherwise, such
transactions will be credited or debited to the Account on the
date cash or Securities are actually received by the Bank and
reconciled to the Account.
(i) The Bank may reverse credits or debits made to an
Account in its discretion if the related transaction
fails to settle within a reasonable period,
determined by the Bank in its discretion, after the
contractual settlement date for the related
transaction.
(ii) If any Securities delivered pursuant to this Section
6 are returned by the recipient thereof, the Bank may
reverse the credits and debits of the particular
transaction at any time.
SECTION 7. ACTIONS OF THE BANK
The Bank shall follow Instructions received regarding assets held in
the Accounts. However, until it receives Instructions to the contrary, the Bank
will:
(a) Present for payment any Securities 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 the Bank or Subcustodian is actually aware
of such opportunities.
(b) Execute in the name of the Customer such ownership and other
certificates as may be required to obtain payments in respect
of Securities.
(c) Exchange interim receipts or temporary Securities for
definitive Securities.
(d) Appoint brokers and agents for any transaction involving the
Securities, including, without limitation, affiliates of the
Bank or any Subcustodian.
(e) Issue statements to the Customer, at times mutually agreed
upon, identifying the Assets in the Accounts.
The Bank will send the Customer an advice or notification of any
transfers of Assets to or from the Accounts. Such statements, advices or
notifications shall indicate the identity of the entity having custody of the
Assets. Unless the Customer sends the Bank a written exception or objection to
any Bank statement within sixty (60) days of receipt, the Customer shall be
deemed to have approved such statement. In such event, or where the Customer has
otherwise approved any such statement, the Bank shall, to the extent permitted
by law, be released, relieved and discharged with respect to all matters set
forth in such statement or reasonably implied therefrom as though it had been
settled by the decree of a court of competent jurisdiction in an action where
the Customer and all persons having or claiming an interest in the Customer or
the Customer's Accounts were parties.
All collections of funds or other property paid or distributed in
respect of Securities in the Custody Account shall be made at the risk of the
Customer. The Bank shall have no liability for any loss occasioned by delay in
the actual receipt of notice by the Bank or by its Subcustodians of any payment,
redemption or other transaction regarding Securities in the Custody Account in
respect of which the Bank has agreed to take any action under this Agreement.
103
SECTION 8. CORPORATE ACTIONS; PROXIES
Whenever the Bank receives information concerning the Securities which
requires discretionary action by the beneficial owner of the Securities (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"), the Bank will give the
Customer notice of such Corporate Actions to the extent that the Bank's central
corporate actions department has actual knowledge of a Corporate Action in time
to notify its customers.
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, the Bank will endeavor to obtain
Instructions from the Customer or its Authorized Person as defined in Section
10, but if Instructions are not received in time for the Bank to take timely
actions, or actual notice of such Corporate Action was received too late to seek
Instructions, the Bank is authorized to sell such rights entitlement or
fractional interest and to credit the Deposit Account with the proceeds or take
any other action it deems, in good faith, to be appropriate in which case it
shall be held harmless for any such action.
The Bank will deliver proxies to the Customer or its designated agent
pursuant to special arrangements which may have been agreed to in writing. Such
proxies shall be executed in the appropriate nominee name relating to Securities
in the Custody Account registered in the name of such nominee but without
indicating the manner in which such proxies are to be voted; and where bearer
Securities are involved, proxies will be delivered in accordance with
Instructions.
SECTION 9. NOMINEES
Securities which are ordinarily held in registered form may be
registered in a nominee name of the Bank, Subcustodian or securities depository,
as the case may be. The Bank may without notice to the Customer cause any such
Securities to cease to be registered in the name of any such nominee and to be
registered in the name of the Customer. In the event that any Securities
registered in a nominee name are called for partial redemption by the issuer,
the Bank may allot the called portion to the respective beneficial holders of
such class of security in any manner the Bank deems to be fair and equitable.
The Customer agrees to hold the Bank, Subcustodians, and their respective
nominees harmless from any liability arising from their status as a mere record
holder of Securities in the Custody Account.
SECTION 10. AUTHORIZED PERSONS.
As used in this Agreement, the term "Authorized Person" means employees
or agents including investment managers as have been designated by written
notice from the Customer or its designated agent to act on behalf of the
Customer under this Agreement. Such persons shall continue to be Authorized
Persons until such time as the Bank receives Instructions from the Customer or
its designated agent that any such employee or agent is no longer an Authorized
Person.
SECTION 11. INSTRUCTIONS.
The term "Instructions" means instructions of any Authorized Person
received by the Bank, via telephone, telex, TWX, facsimile transmission, bank
wire or other teleprocess or electronic instruction or trade information system
acceptable to the Bank that the 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 the Bank may specify.
104
Unless otherwise expressly provided, all Instructions shall continue in full
force and effect until canceled or superseded.
Any Instructions delivered to the 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 the Customer will hold the
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 the Bank's failure to produce such confirmation at any
subsequent time. The Bank may electronically record any Instructions given by
telephone, and any other telephone discussions with respect to the Custody
Account. The Customer shall be responsible for safeguarding any testkeys,
identification codes or other security devices which the Bank shall make
available to the Customer or its Authorized Persons.
Deposit Account Payments and Custody Account Transactions made pursuant
to Section 5 and 6 of this Agreement may be made only for the purposes listed
below. Instructions must specify the purpose for which any transaction is to be
made and Customer shall be solely responsible to assure that Instructions are in
accord with any limitations or restrictions applicable to the Customer by law or
as may be set forth in its prospectus.
(a) In connection with the purchase or sale of Securities at
prices as confirmed by Instructions;
(b) When Securities are called, redeemed or retired, or otherwise
become payable;
(c) In exchange for or upon conversion into other securities alone
or other securities and cash pursuant to any plan or merger,
consolidation, reorganization, recapitalization or
readjustment;
(d) Upon conversion of Securities pursuant to their terms into
other securities;
(e) Upon exercise of subscription, purchase or other similar
rights represented by Securities;
(f) For the payment of interest, taxes, management or supervisory
fees, distributions or operating expenses;
(g) In connection with any borrowings by the Customer requiring a
pledge of Securities, but only against receipt of amounts
borrowed;
(h) In connection with any loans, but only against receipt of
adequate collateral as specified in Instructions which shall
reflect any restrictions applicable to the Customer;
(i) For the purpose of redeeming shares of beneficial interest of
the Customer and the delivery to, or the crediting to the
account of, the Bank, its Subcustodian or the Customer's
transfer agent, such shares to be purchased or redeemed;
(j) For the purpose of redeeming in kind shares of the Customer
against delivery to the Bank, its Subcustodian or the
Customer's transfer agent of such shares to be so redeemed;
(k) For delivery in accordance with the provisions of any
agreement among the Customer, the Bank and a broker-dealer
registered under the Securities Exchange Act of 1934 (the
"Exchange Act") and a member of The National Association of
Securities Dealers, Inc. ("NASD"), relating to compliance with
the rules of The Options Clearing Corporation and of any
registered national securities exchange, or of any similar
organization or organizations, regarding escrow or other
arrangements in connection with transactions by the Customer;
105
(l) For release of Securities to designated brokers under covered
call options, provided, however, that such Securities shall be
released only upon payment to the Bank of monies for the premium
due and a receipt for the Securities which are to be held in
escrow. Upon exercise of the option, or at expiration, the Bank
will receive from brokers the Securities previously deposited.
The Bank will act strictly in accordance with Instructions in the
delivery of Securities to be held in escrow and will have no
responsibility or liability for any such Securities which are not
returned promptly when due other than to make proper request for
such return;
(m) For spot or forward foreign exchange transactions to
facilitate security trading, receipt of income from Securities
or related transactions;
(n) For other proper purposes as may be specified in Instructions
issued by an officer of the Customer which shall include a
statement of the purpose for which the delivery or payment is
to be made, the amount of the payment or specific Securities
to be delivered, the name of the person or persons to whom
delivery or payment is to be made, and a certification that
the purpose is a proper purpose under the instruments
governing the Customer; and
(o) Upon the termination of this Agreement as set forth in
Section 14(i).
SECTION 12. STANDARD OF CARE; LIABILITIES
(a) The Bank shall be responsible for the performance of only such
duties as are set forth in this Agreement or expressly
contained in Instructions which are consistent with the
provisions of this Agreement as follows:
(i) The Bank will use reasonable care with respect to its
obligations under this Agreement and the safekeeping of
Assets. The Bank shall be liable to the 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 to the same
extent that the Bank would be liable to the Customer if
the Bank were holding such Assets in New York. In the
event of any loss to the Customer by reason of the
failure of the Bank or its Subcustodian to utilize
reasonable care, the Bank shall be liable to the
customer only to the extent of the 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.
(ii) The Bank will not be responsible for any act,
omission, default or for the solvency of any broker
or agent which it or a Subcustodian appoints unless
such appointment was made negligently or in bad
faith.
(iii) The Bank shall be indemnified by, and without
liability to the Customer for any actions taken or
omitted by the Bank whether pursuant to Instructions
or otherwise within the scope of this Agreement if
such act or omission was in good faith, without
negligence. In performing its obligations under this
Agreement, the Bank may rely on the genuineness of
any document which it believes in good faith to have
been validly executed.
(iv) The Customer agrees to pay for and hold the Bank
harmless from any liability or loss resulting from
the imposition or assessment of any taxes or other
106
governmental charges, and any related expenses with
respect to income from or Assets in the Accounts.
(v) The Bank shall be entitled to rely, and may act, upon
the advice of counsel (who may be counsel for the
Customer) on all matters and shall be without liability
for any action reasonably taken or omitted pursuant to
such advice.
(vi) The Bank need not maintain any insurance for the
benefit of the Customer.
(vii)Without limiting the foregoing, the 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 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
or terrorism, 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 the Bank
shall have no duty or responsibility to:
(i) question Instructions or make any suggestions to the
Customer or an Authorized Person regarding such
Instructions;
(ii) supervise or make recommendations with respect to
investments or the retention of Securities;
(iii)advise the 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) of
this Agreement;
(iv) evaluate or report to the Customer or an Authorized
Person regarding the financial condition of any broker,
agent or other party (except for brokers, agents other
than subcustodians or depositories or other parties
selected by the Bank, except in markets where there is
only one registered or otherwise qualified broker,
agent or other party) to which Securities are delivered
or payments are made pursuant to this Agreement; or
(v) review or reconcile trade confirmations received from
brokers. The Customer or its Authorized Persons (as
defined in Section 10) issuing Instructions shall bear
any responsibility to review such confirmations against
Instructions issued to and statements issued by the
Bank.
107
(c) The Customer authorizes the Bank to act under this Agreement
notwithstanding that the Bank or any of its divisions or
affiliates may have a material interest in a transaction, or
circumstances are such that the Bank may have a potential
conflict of duty or interest including the fact that the Bank or
any of its affiliates may provide brokerage services to other
customers, act as financial advisor to the issuer of Securities,
act as a lender to the issuer of Securities, act in the same
transaction as agent for more than one customer, have a material
interest in the issue of Securities, or earn profits from any of
the activities listed herein.
(d) The Bank hereby warrants to the Customer that in its opinion,
after due inquiry, the established procedures to be followed by
each of its branches, each branch of a qualified U.S. bank, each
eligible foreign custodian and each eligible foreign securities
depository holding the Customer's Securities pursuant to this
Agreement afford protection for such Securities at least equal to
that afforded by the Bank's established procedures with respect
to similar securities held by the Bank and its securities
depositories in New York.
SECTION 13. FEES AND EXPENSES
The Customer agrees to pay the Bank for its services under this
Agreement such amount as may be agreed upon in writing, together with the Bank's
reasonable out-of-pocket or incidental expenses, including, but not limited to,
legal fees. The Bank shall have a lien on and is authorized to charge any
Accounts of the Customer for any amount owing to the Bank under any provision of
this Agreement, so long as such lien does not contravene the provisions of SEC
Release #40-12053, as amended from time to time. No fee shall be payable
hereunder with respect to any Fund during any period in which such Fund invests
all (or substantially all) of its investment assets in a registered, open-end
management investment company, or separate series thereof, in accordance with
section 12(d)(1)(E) under the Investment Company Act of 1940.
SECTION 14. MISCELLANEOUS
(a) FOREIGN EXCHANGE TRANSACTIONS. To facilitate the administration
of the Customer's trading and investment activity, the Bank is
authorized to enter into spot or forward foreign exchange
contracts with the Customer or an Authorized Person for the
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 the Bank may establish rules or limitations
concerning any foreign exchange facility made available. In all
cases where the Bank, its subsidiaries, affiliates or
Subcustodians enter into a foreign exchange contract related to
an Account, the terms and conditions of the then current foreign
exchange contract of the Bank, its subsidiary, affiliate or
Subcustodian and, to the extent not inconsistent, this Agreement
shall apply to such transaction.
(b) CERTIFICATION OF RESIDENCY, ETC. The Customer certifies that it
is a resident of the United States and agrees to notify the Bank
of any changes in residency. The Bank may rely upon this
certification or the certification of such other facts as may be
required to administer the Bank's obligations under this
Agreement. The Customer will indemnify the Bank against all
losses, liability, claims or demands arising directly or
indirectly from any such certifications.
(c) ACCESS TO RECORDS. The Bank shall allow the Customer's
independent public accountant reasonable access to the records of
the Bank relating to the Assets as is required in connection with
their examination of books and records pertaining to the
customer's affairs. Subject to restrictions under applicable law,
the Bank shall also obtain an undertaking to permit the
Customer's independent public accountants reasonable access to
the records of any Subcustodian which has physical possession of
any Assets as may be required in connection with the examination
of the Customer's books and records. Upon reasonable request from
108
the Customer, the Bank shall furnish the Customer such reports
(or portions thereof) of the Bank's system of internal accounting
controls applicable to the Bank's duties under this Agreement.
The 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 the
Customer's assets.
(d) GOVERNING LAW; SUCCESSORS AND ASSIGNS. This Agreement shall be
governed by the laws of the State of New York and shall not be
assignable by either party, but shall bind the successors in
interest of the Customer and the Bank.
(e) ENTIRE AGREEMENT; APPLICABLE RIDERS. Customer represents that the
Assets deposited in the Accounts are (Check one):
___ Employee Benefit Plan or other assets subject to the
Employee Retirement Income Security Act of 1974, as
amended ("ERISA");
_X_ Mutual Fund assets subject to certain Securities and
Exchange Commission ("SEC")rules and regulations;
___ Neither of the above.
This Agreement consists exclusively of this document together with Schedule A,
Schedule B, and the following Rider(s) (check applicable rider(s)):
___ ERISA
_X_ MUTUAL FUND
_X_ SPECIAL TERMS AND CONDITIONS
There are no other provisions of this Agreement and this Agreement
supersedes any other agreements, whether written or oral, between the parties.
Any amendment to this Agreement must be in writing, executed by both parties.
(f) SEVERABILITY. In the event that one or more provisions of this
Agreement are held invalid, illegal or enforceable 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 will not
in any way be affected or impaired.
(g) WAIVER. Except as otherwise provided in this Agreement, no
failure or delay on the part of either party in exercising any
power or right under this Agreement 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 or any provision of
this Agreement, 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) NOTICES. All notices under this Agreement shall be effective
when actually received. Any notices or other communications
which may be required under this Agreement are to be sent to
the parties at the following addresses or such other addresses
as may subsequently be given to the other party in writing:
109
Bank: The Chase Manhattan Bank
Attention: Global Custody Division
Xxxxxxxx Xxxxx, Xxxxxxx Xxxxxx
Xxxxxx, XX0X 0XX, Xxxxxx Xxxxxxx
or telex:
Customer: Xxxxxxxx Series Trust II
c/o Forum Administrative Services, LLC
Two Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxx 00000
or telex: (000) 000-0000
(i) TERMINATION. This Agreement may be terminated by the Customer or
the Bank by giving sixty (60) days written notice to the other,
provided that such notice to the Bank shall specify the names of
the persons to whom the Bank shall deliver the assets in the
Accounts. If notice of termination is given by the Bank, the
Customer shall, within sixty (60) days following receipt of the
notice, deliver to the Bank Instructions specifying the names of
the persons to whom the Bank shall deliver the Assets. In either
case, the Bank will deliver the Assets to the persons so
specified, after deducting any amounts which the 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 the
Bank, the Bank does not receive Instructions from the Customer
specifying the names of the persons to whom the Bank shall
deliver the Assets, the 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 of
this Agreement, or to Authorized Persons, or may continue to hold
the Assets until Instructions are provided to the Bank.
(j) A copy of the Trust Instrument of the Xxxxxxxx Series Trust II is
on file with the Secretary of the State of Delaware and notice is
hereby given that the Agreement is not binding upon any of the
trustees, officers, or shareholders of the Customer individually,
but are binding only upon the assets and property of the
applicable Fund. The Bank agrees that no shareholder, trustee, or
officer of the Customer or any Fund may be held personally liable
or responsible for any obligations of any fund arising out of the
Agreement. With respect to the obligations of a Fund arising out
of the Agreement, the Bank shall look for payment or satisfaction
of any claim solely to the assets and property of that Fund, and
not to the assets of any other series of the Trust.
110
XXXXXXXX SERIES TRUST II
On behalf of each fund
listed in Schedule A.
By: /S/ XXXXXXXXX X. XXXXX
---------------------------------
Xxxxxxxxx X. Xxxxx
Vice President
THE CHASE MANHATTAN BANK
By:/s/ Xxxxx Xxxxxxx
------------------------------------
Xxxxx Xxxxxxx
111
XXXXXXXX SERIES TRUST II
GLOBAL CUSTODY AGREEMENT
SCHEDULE A
(as of December 9, 1997)
FUND NAME
---------
Xxxxxxxx All-Asia Fund
112
XXXXXXXX SERIES TRUST II
GLOBAL CUSTODY AGREEMENT
SCHEDULE B
MATERIALS FURNISHED BY CHASE
----------------------------
COUNTRY NAME OF SUBCUSTODIAN NAME OF CENTRAL DEPOSITORY
------- -------------------- --------------------------
Cedel N/A Cedel Bank S.A., Luxembourg City
China Hongkong and Shanghai Banking Shanghai Securities Central Clearing &
Corporation Limited, Shanghai Registration Corporation
Hong Kong and Shanghai Banking Shenzen Securities Clearing Co., Ltd.
Corporation Limited, Shenzen
Hong Kong The Chase Manhattan Bank, Hong Kong Securities Clearing Co., Ltd.
S.A.R. Hong Kong
India Hongkong and Shanghai Banking
Corporation Limited, Bombay
Deutsche Bank, A.G., Bombay
Indonesia Hongkong and Shanghai Banking
Corporation Limited, Jakarta
Standard Chartered Bank, Jakarta
Japan The Fuji Bank, Limited, Tokyo Japan Securities Depository Center
Korea Hongkong and Shanghai Banking Corporation Korea Securities Depository Corporation
Limited, Seoul
Malaysia The Chase Manhattan Bank (M) Berhad, Malaysian Central Depository Sdn. Bhd.
Kuala Lumpar
Pakistan Citibank, N.A. Karachi Central Depository Company of Pakistan,
Ltd.
Deutsche Bank, A.G. Karachi
Philippines Hongkong and Shanghai Banking Corporation Philippines Central Depository Inc.
Limited, Manila
Singapore The Chase Manhattan Bank, Singapore Central Depository Pte. Ltd.
Standard Chartered Bank plc, Singapore
Sri Lanka Hongkong and Shanghai Banking Corporation Central Depository System Limited
Limited, Columbo
Taiwan The Chase Manhattan Bank, Taipei Taiwan Securities Central Depository Co.,
Ltd.
113
COUNTRY NAME OF SUBCUSTODIAN NAME OF CENTRAL DEPOSITORY
------- ------------------- ---------------------------
Thailand The Chase Manhattan Bank, Bangkok Thailand Securities Depository Company
Ltd.
United Kingdom The Chase Manhattan Bank. London CREST
First Chicago NBD Corporation, London
The materials include generally with respect to each country:
1. A description from Chase covering the applicable subcustodian's equity, its
background, depository arrangements, branch offices, operational
capabilities and certain regulatory and legal matters.
2. A form of the agreement that each foreign subcustodian has entered into
with Chase.
3. A disk copy of an opinion of counsel addressing the legal matters required
to be considered pursuant to Rule 17f-5.
114
SPECIAL TERMS AND CONDITIONS
These Special Terms and Conditions supplement the Agreement by and
between The Chase Manhattan Bank (the "Bank") and Xxxxxxxx Series Trust
II (the "Customer") effective December 9, 1997. To the extent that any
term or provision of the Agreement is inconsistent with these Special
Terms and Conditions, the Special Terms and Conditions shall control.
In order to properly allocate the responsibilities of the parties, the
term "Customer" shall have the meanings designated below.
a) In the following sections of the Agreement, the term "Customer"
shall mean "each Fund":
-- Section 1(a) & (b)
-- Section 2
-- Section 4
-- Section 13, and
-- Section 14(c)
b) In the following sections of the Agreement the term "Customer"
shall refer to the Customer on behalf of a Fund.
-- Section 1; the last paragraphs
-- Section 3
-- Section 4
-- Section 5(c)
-- Section 7(b) & (e)
-- Section 7; the last paragraph
-- Section 8
-- Section 10
-- Section 11, and
-- Section 14(a) & (i)
c) In sections 9 and 12 of the Agreement, the term "Customer"
shall mean the Customer or the Fund.
115
