Exhibit (g)(2)
THIS AGREEMENT,
dated as of ___________________, 2009, between [NAME OF FUND], a management
investment company organized under the laws of the State of _____________________ and
registered with the Commission under the Investment Company Act of 1940 (“the 1940
Act”) (the Fund), and XXXXX BROTHERS XXXXXXXX & CO., a limited
partnership formed under the laws of the State of New York (BBH&Co. or the
Custodian).
W I T N E S S E T
H:
WHEREAS, the
Fund wishes to employ BBH&Co. to act as custodian for the Fund and to provide related
services, all as provided herein, and BBH&Co. is willing to accept such employment,
subject to the terms and conditions herein set forth;
NOW, THEREFORE, in consideration
of the mutual covenants and agreements herein contained, the Fund and BBH&Co. hereby
agree, as follows:
1. Appointment
of Custodian. The Fund hereby appoints BBH&Co. as the Fund’s
Custodian, and BBH&Co. hereby accepts such appointment. All Investments of
the Fund delivered to the Custodian or its agents or Subcustodians shall be
dealt with as provided in this Agreement. The duties of the Custodian with
respect to the Fund’s Investments shall be only as set forth expressly in
this Agreement which duties are generally comprised of safekeeping and various
administrative duties that will be performed in accordance with Instructions
and as reasonably required to effect Instructions.
2. Representations,
Warranties and Covenants of the Fund. The Fund hereby
represents, warrants and covenants each of the following:
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2.1
This Agreement has been, and at the time of delivery of each Instruction such Instruction
will have been, duly authorized, executed and delivered by the Fund. Neither this
Agreement nor any Instruction issued thereunder violates any Applicable Law or conflicts
with or constitutes a default under the Fund’s prospectus, articles of organization
or other constitutive document or any agreement, judgment, order or decree to which the
Fund is a party or by which it or its Investments is bound. |
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2.2
By providing an Instruction with respect to the first acquisition of an Investment in a
jurisdiction other than the United States of America, the Fund shall be deemed to have
confirmed to the Custodian that the Fund has (a) assessed and accepted all material
Country or Sovereign Risks and accepted responsibility for their occurrence, (b) made all
determinations required to be made by the Fund under the 1940 Act, and (iii)
appropriately and adequately disclosed to its shareholders, other investors and all
persons who have rights in or to such Investments, all material investment risks,
including those relating to the custody and settlement infrastructure or the servicing of
securities in such jurisdiction. |
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2.3
The Fund shall safeguard and shall solely be responsible for the safekeeping of any
testkeys, identification codes, passwords, other security devices or statements of
account with which the Custodian provides it. If the Fund uses any on-line or similar
communications service made available by the Custodian, the Fund shall be solely
responsible for ensuring the security of its access to the service and for the use of the
service, and shall only attempt to access the service and the Custodian’s computer
systems as directed by the Custodian. If the Custodian provides any computer software to
the Fund relating to the services described in this Agreement, the Fund will only use the
software for the purposes for which the Custodian provided the software to the Fund, and
will abide by the license agreement accompanying the software and any other security
policies which the Custodian provides to the Fund. |
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2.4
By providing an Instruction in respect of an Investment (which Instruction may relate to
among other things, the execution of trades), the Fund hereby (i) authorizes BBH&Co.
to complete such documentation as may be required or appropriate for the execution of the
Instruction, and agrees to be contractually bound to the terms of such documentation
“as is” without recourse against BBH&Co.; (ii) represents, warrants and
covenants that it has accepted and agreed to comply with all Applicable Law, terms and
conditions to which it and/or its Investment may be bound, including without limitation,
requirements imposed by the Investment prospectus or offering circular, subscription
agreement, any application or other documentation relating to an Investment (e.g.,
compliance with suitability requirements and eligibility restrictions); (iii)
acknowledges and agrees that BBH&Co. will not be responsible for the accuracy of any
information provided to it by or on behalf of the Fund, or for any underlying commitment
or obligation inherent to an Investment; (iv) represents, warrants and covenants that it
will not effect any sale, transfer or disposition of Investment(s) held in the BBH&Co.‘s
name by any means other than the issuance of an Instruction by the Fund to BBH&Co.;
(v) acknowledges that collective investment schemes (and/or their agent(s)) in which the
Fund invests may pay to BBH certain fees (including without limitation, shareholder
servicing and/or trailer fees) in respect of the Fund’s investments in such schemes;
(vi) represents, warrants and covenants that it will provide BBH&Co. with such
information as is necessary or appropriate to enable BBH&Co.‘s performance
pursuant to an Instruction or under this Agreement; (vii) represents that it is not a
“Plan”(which term includes (1) employee benefit plans that are subject to the
United States (“US”) Employee Retirement Income Security Act of 1974, as
amended (“ERISA”), or plans, individual retirement accounts and other
arrangements that are subject to Section 4975 of the US Internal Revenue Code of 1986, as
amended (the “Code”), (2) plans, individual retirement accounts and other
arrangements that are subject to the prohibited transaction provisions of Section 406 of
ERISA or Section 4975 of the Code, and (3) entities the underlying assets of which are
considered to include “plan assets” of such plans, accounts and arrangements),
or an entity purchasing shares on behalf of, or with the “plan assets” of, a
Plan; and (viii) undertakes to inform BBH&Co. and to keep the same updated as to the
status under ERISA or Section 4975 of the Code, each as amended, of the beneficial
investor to the Investment, and as to any tax withholding or benefit to which an
Investment may be subject. |
3. Representation
and Warranty of BBH&Co. BBH&Co. hereby represents and
warrants that this Agreement has been duly authorized, executed and delivered
by BBH&Co. and does not and will not violate any Applicable Law or conflict
with or constitute a default under BBH&Co.‘s limited partnership
agreement or any agreement, instrument, judgment, order or decree to which BBH&Co.
is a party or by which it is bound.
4. Instructions. Unless
otherwise explicitly indicated herein, the Custodian shall perform its duties
pursuant to Instructions. As used herein, the term Instruction shall
mean a directive initiated by the Fund, acting through its board of directors
or trustees or other Authorized Person, which directive shall conform to the
requirements of this Section 4.
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4.1
Authorized Persons. For purposes hereof, an Authorized Personshall
be a person or entity authorized to give Instructions to the Custodian by written notices
or otherwise for or on behalf of the Fund in accordance with procedures delivered to and
acknowledged by the Custodian. The Custodian may treat any Authorized Person as having
the full authority of the Fund to issue Instructions hereunder unless the notice of
authorization contains explicit limitations as to said authority. The Custodian shall be
entitled to rely upon the authority of Authorized Persons until it receives appropriate
written notice from the Fund to the contrary. |
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4.2
Form of Instruction. Each Instruction shall be transmitted by such
secured or authenticated electro-mechanical means as the Custodian shall make available
to the Fund from time to time unless the Fund shall elect to transmit such Instruction in
accordance with Subsections 4.2.1 through 4.2.3 of this Section. |
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4.2.1
Fund Designated Secured-Transmission Method. Instructions may be
transmitted through a secured or tested electro-mechanical means identified by the Fund
or by an Authorized Person entitled to give Instruction and acknowledged and accepted by
the Custodian, it being understood that such acknowledgment shall authorize the Custodian
to accept such means of delivery but shall not represent a judgment by the Custodian as
to the reasonableness or security of the means utilized by the Authorized Person. |
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4.2.2
Written Instructions. Instructions may be transmitted in a writing that bears
the manual signature of Authorized Persons. |
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4.2.3
Other Forms of Instruction. Instructions may also be transmitted by
another means determined by the Fund or Authorized Persons and acknowledged and accepted
by the Custodian (subject to the same limits as to acknowledgements as are contained in
Subsection 4.2.1, above) including Instructions given orally or by SWIFT or telefax
(whether tested or untested). |
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When
an Instruction is given by means established under Subsections 4.2.1 through 4.2.3, it
shall be the responsibility of the Custodian to use reasonable care to adhere to any
security or other procedures established in writing between the Custodian and the
Authorized Person with respect to such means of Instruction, but the Authorized Person
shall be solely responsible for determining that the particular means chosen is
reasonable under the circumstances. Oral Instructions shall be binding upon the Custodian
only if and when the Custodian takes action with respect thereto. With respect to telefax
instructions, the parties agree and acknowledge that receipt of legible instructions
cannot be assured, that the Custodian cannot verify that authorized signatures on telefax
instructions are original or properly affixed, and that the Custodian shall not be liable
for losses or expenses incurred through actions taken in reliance on inaccurately stated,
illegible or unauthorized telefax instructions. The provisions of Section 4A of the
Uniform Commercial Code shall apply to Funds Transfers performed in accordance with
Instructions. The Funds Transfer Services Schedule and the Electronic and Online Services
Schedule to this Agreement shall each comprise a designation of a means of delivering
Instructions for purposes of this Section 4.2. |
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4.3
Completeness and Contents of Instructions. The Authorized Person
shall be responsible for assuring the adequacy and accuracy of Instructions.
Particularly, upon any acquisition or disposition or other dealing in the Fund’s
Investments and upon any delivery and transfer of any Investment or moneys, the person
initiating the Instruction shall give the Custodian an Instruction with appropriate
detail, including, without limitation: |
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4.3.1
The transaction date and the date and location of settlement; |
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4.3.2
The specification of the type of transaction; |
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4.3.3
A description of the Investments or moneys in question, including, as appropriate,
quantity, price per unit, amount of money to be received or delivered and currency
information. Where an Instruction is communicated by electronic means, or otherwise where
an Instruction contains an identifying number such as a CUSIP, SEDOL or ISIN number, the
Custodian shall be entitled to rely on such number as controlling notwithstanding any
inconsistency contained in the Instruction, particularly with respect to Investment
description; and |
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4.3.4
The name of the broker or similar entity concerned with execution of the transaction. |
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If
the Custodian determines that an Instruction is either unclear or incomplete, the
Custodian may give prompt notice of such determination to the Fund, and the Fund shall
thereupon amend or otherwise reform the Instruction. In such event, the Custodian shall
have no obligation to take any action in response to the Instruction initially delivered
until the redelivery of an amended or reformed Instruction. |
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4.4
Timeliness of Instructions. In giving an Instruction, the Fund shall
take into consideration delays which may occur due to the involvement of a Subcustodian
or agent, differences in time zones, and other factors particular to a given market,
exchange or issuer. When the Custodian has established specific timing requirements or
deadlines with respect to particular classes of Instruction, or when an Instruction is
received by the Custodian at such a time that it could not reasonably be expected to have
acted on such instruction due to time zone differences or other factors beyond its
reasonable control, the execution of any Instruction received by the Custodian after such
deadline or at such time (including any modification or revocation of a previous
Instruction) shall be at the risk of the Fund. |
5. Safekeeping
of Fund Assets. The Custodian shall hold Investments delivered
to it or Subcustodians for the Fund in accordance with the provisions of this
Section. The Custodian shall not be responsible for (a) the safekeeping of
Investments not delivered or that are not caused to be issued to it or its
Subcustodians; or, (b) pre-existing faults or defects in Investments that are
delivered to the Custodian or its Subcustodians. The Custodian is hereby
authorized to hold with itself or a Subcustodian, and to record in one or more
accounts, all Investments delivered to and accepted by the Custodian, any
Subcustodian or their respective agents pursuant to an Instruction or in
consequence of any corporate action or income event. The Custodian shall hold
Investments for the account of the Fund and shall segregate Investments from
assets belonging to the Custodian and shall cause its Subcustodians to
segregate Investments from assets belonging to the Subcustodian in an account
held for the Fund or in an account maintained by the Subcustodian generally for
non-proprietary assets of the Custodian.
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5.1
Use of Securities Depositories. The Custodian may deposit and
maintain Investments in any Securities Depository, either directly or through one or more
Subcustodians appointed by the Custodian. Investments held in a Securities Depository
shall be held (a) subject to the agreement, rules, statement of terms and conditions or
other document or conditions effective between the Securities Depository and the
Custodian or the Subcustodian, as the case may be, and (b) in an account for the Fund or
in bulk segregation in an account maintained for the non-proprietary assets of the entity
holding such Investments in the Depository. If market practice or the rules and
regulations of the Securities Depository prevent the Custodian, the Subcustodian or (any
agent of either) from holding its client assets in such a separate account, the
Custodian, the Subcustodian or other agent shall as appropriate segregate such
Investments for benefit of the Fund or for benefit of clients of the Custodian generally
on its own books. |
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5.2
Certificated Assets. Investments which are certificated may be held
in registered or bearer form: (a) in the Custodian’s vault; (b) in the vault of a
Subcustodian or agent of the Custodian or a Subcustodian; or (c) in an account maintained
by the Custodian, Subcustodian or agent at a Securities Depository; all in accordance
with customary market practice in the jurisdiction in which any Investments are held. |
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5.3
Registered Assets. Investments which are registered may be
registered in the name of the Custodian, a Subcustodian, or in the name of the Fund or a
nominee for any of the foregoing, and may be held in any manner set forth in Section 5.2
above with or without any identification of fiduciary capacity in such registration. |
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5.4
Book Entry Assets. Investments which are represented by book-entry
may be so held in an account maintained by the Book-entry Agent on behalf of the
Custodian, a Subcustodian or another Agent of the Custodian, or a Securities Depository. |
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5.5
Replacement of Lost Investments. In the event of a loss of
Investments for which loss the Custodian is responsible under the terms of this
Agreement, the Custodian shall replace such Investment, or in the event that such
replacement cannot be effected, the Custodian shall pay to the Fund the fair market value
of such Investment based on the last available price as of the close of business in the
relevant market on the date that a claim was first made to the Custodian with respect to
such loss, or such other lesser amount as shall be agreed by the parties. |
6. Administrative
Duties of the Custodian. The Custodian shall perform the
following administrative duties with respect to Investments of the Fund.
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6.1
Purchase of Investments. Pursuant to Instruction, Investments
purchased for the account of the Fund shall be paid for (a) against delivery thereof to
the Custodian or a Subcustodian, as the case may be, either directly or through a
Clearing Corporation or a Securities Depository (in accordance with the rules of such
Securities Depository or such Clearing Corporation), or (b) otherwise in accordance with
an Instruction, Applicable Law, generally accepted trade practices, or the terms of the
instrument representing such Investment. |
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6.2
Sale of Investments. Pursuant to Instruction, Investments sold for
the account of the Fund shall be delivered (a) against payment therefor in cash, by check
or by bank wire transfer, (b) by credit to the account of the Custodian or the applicable
Subcustodian, as the case may be, with a Clearing Corporation or a Securities Depository
(in accordance with the rules of such Securities Depository or such Clearing
Corporation), or (c) otherwise in accordance with an Instruction, Applicable Law,
generally accepted trade practices, or the terms of the instrument representing such
Investment. |
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6.3
Delivery and Receipt in Connection with Borrowings of the Fund or other Collateral
and Margin Requirements. Pursuant to Instruction, the
Custodian may deliver or receive Investments or cash of the Fund in connection with
borrowings or loans by the Fund and other collateral and margin requirements. |
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6.4Futures
and Options. If, pursuant to an Instruction, the Custodian shall become a
party to an agreement with the Fund and a futures commission merchant regarding margin (Tri-Party
Agreement), the Custodian shall (a) receive and retain, to the extent the same are
provided to the Custodian, confirmations or other documents evidencing the purchase or
sale by the Fund of exchange-traded futures contracts and commodity options, (b) when
required by such Tri-Party Agreement, deposit and maintain in an account opened pursuant
to such Agreement (Margin Account), segregated either physically or by book-entry
in a Securities Depository for the benefit of any futures commission merchant, such
Investments as the Fund shall have designated as initial, maintenance or variation “margin” deposits
or other collateral intended to secure the Fund’s performance of its obligations
under the terms of any exchange-traded futures contracts and commodity options; and (c)
thereafter pay, release or transfer Investments into or out of the margin account in
accordance with the provisions of such Agreement. Alternatively, the Custodian may
deliver Investments, in accordance with an Instruction, to a futures commission merchant
for purposes of margin requirements in accordance with Rule 17f-6 under the 1940 Act. The
Custodian shall in no event be responsible for the acts and omissions of any futures
commission merchant to whom Investments are delivered pursuant to this Section; for the
sufficiency of Investments held in any Margin Account; or, for the performance of any
terms of any exchange-traded futures contracts and commodity options. |
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6.5Contractual
Obligations and Similar Investments. From time to time, the Fund’s
Investments may include Investments that are not ownership interests as may be
represented by certificate (whether registered or bearer), by entry in a Securities
Depository or by Book-Entry Agent, registrar or similar agent for recording ownership
interests in the relevant Investment. If the Fund shall at any time acquire such
Investments, including without limitation deposit obligations, loan participations,
repurchase agreements and derivative arrangements, the Custodian shall (a) receive and
retain, to the extent the same are provided to the Custodian, confirmations or other
documents evidencing the arrangement; and (b) perform on the Fund’s account in
accordance with the terms of the applicable arrangement, but only to the extent directed
to do so by Instruction. The Custodian shall have no responsibility for agreements
running to the Fund as to which it is not a party other than to retain, to the extent the
same are provided to the Custodian, documents or copies of documents evidencing the
arrangement and, in accordance with Instruction, to include such arrangements in reports
made to the Fund. |
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6.6
Exchange of Securities. Unless otherwise directed by Instruction,
the Custodian shall: (a) exchange securities held for the account of the Fund for other
securities in connection with any reorganization, recapitalization, conversion, stock
split, change of par value of shares or similar event, and (b) deposit any such
securities in accordance with the terms of any reorganization or protective plan. |
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6.7
Surrender of Securities. Unless otherwise directed by Instruction,
the Custodian may surrender securities: (a) in temporary form for definitive securities;
(b) for transfer into the name of an entity allowable under Section 5.3; and (c) for a
different number of certificates or instruments representing the same number of shares or
the same principal amount of indebtedness. |
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6.8
Rights, Warrants, Etc. Pursuant to Instruction, the Custodian shall
(a) deliver warrants, puts, calls, rights or similar securities to the issuer or trustee
thereof, or to any agent of the issuer or trustee, for purposes of exercising such rights
or selling such securities, and (b) deliver securities in response to any tender offer. |
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6.9
Mandatory Corporate Actions. Unless otherwise directed by
Instruction, the Custodian shall: (a) comply with the terms of all mandatory or
compulsory exchanges, calls, tenders, redemptions or similar rights of securities
ownership affecting securities held on the Fund’s account and promptly notify the
Fund of such action; and (b) collect all stock dividends, rights and other items of like
nature with respect to such securities. |
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6.10
Income Collection. Unless otherwise directed by Instruction, the
Custodian shall collect any amount due and payable to the Fund with respect to
Investments and promptly credit the amount collected to a Principal or Agency Account;
provided, however, that the Custodian shall not be responsible for: (a) the collection of
amounts due and payable with respect to Investments that are in default or (b) the
collection of cash or share entitlements with respect to Investments that are not
registered in the name of the Custodian or its Subcustodians. The Custodian is hereby
authorized to endorse and deliver any instrument required to be so endorsed and delivered
to effect collection of any amount due and payable to the Fund with respect to
Investments. |
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6.11
Corporate Action Information. In fulfilling the duties set forth in
Sections 6.6 through 6.10 above, the Custodian shall provide to the Fund such material
information pertaining to a corporate action which the Custodian actually receives;
provided that the Custodian shall not be responsible for the completeness or accuracy of
such information. Information relative to any pending corporate action made available to
the Fund via any of the services described in the Electronic and Online Services Schedule
shall constitute the delivery of such information by the Custodian. Any advance credit of
cash or shares expected to be received as a result of any corporate action shall be
subject to actual collection and may be reversed by the Custodian. |
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6.12
Proxy Materials. The Custodian shall deliver, or cause to be
delivered, to the Fund proxy forms, notices of meeting, and any other notices or
announcements materially affecting or relating to Investments received by the Custodian.
Information relative to any pending corporate action made available to the Fund via any
of the services described in the Electronic and Online Services Schedule shall constitute
the delivery of such information by the Custodian. |
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6.13Ownership
Certificates and Disclosure of the Fund’s Interest. The Custodian is hereby
authorized to execute on behalf of the Fund ownership certificates, affidavits or other
disclosure required under Applicable Law or established market practice in connection
with the receipt of income, capital gains or other payments by the Fund with respect to
Investments, or in connection with the sale, purchase or ownership of Investments. |
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With
respect to securities issued in the United States of America, the Custodian [ ] may [ ]
may not release the identity of the Fund to an issuer which requests such information
pursuant to the Shareholder Communications Act of 1985 for the specific purpose of direct
communications between such issuer and the Fund. IF NO BOX IS CHECKED, THE CUSTODIAN
SHALL RELEASE SUCH INFORMATION UNTIL IT RECEIVES CONTRARY INSTRUCTIONS FROM THE FUND.
With respect to securities issued outside of the United States of America, information
shall be released in accordance with law or custom of the particular country in which
such security is located. |
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6.14.
Taxes. The Custodian shall, where applicable, assist the
Fund in the reclamation of taxes withheld on dividends and interest payments
received by the Fund. In the performance of its duties with respect to tax
withholding and reclamation, the Custodian shall be entitled to rely on the
advice of counsel and upon information and advice regarding the Fund’s tax
status that is received from or on behalf of the Fund without duty of separate
inquiry. |
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6.15
Other Dealings. The Custodian shall otherwise act as directed by
Instruction, including without limitation effecting the free payments of moneys or the
free delivery of securities, provided that such Instruction shall indicate the purpose of
such payment or delivery and that the Custodian shall record the party to whom the
payment or delivery is made. |
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6.16
Nondiscretionary Details and Minor Expenses. The Custodian shall
attend to all nondiscretionary details in connection with the sale or purchase or other
administration of Investments, except as otherwise directed by Instruction, and may make
payments to itself or others for minor expenses of administering Investments under this
Agreement, provided that the Fund shall have the right to request an accounting with
respect to such expenses. |
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6.17
Use of Agents. The Custodian may at any time in its discretion
appoint (and may at any time remove) agents (other than Subcustodians) to carry out some
or all of the administrative provisions of this Agreement (Agents), provided,
however, that the appointment of an Agent shall not relieve the Custodian of its
administrative obligations under this Agreement. |
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7. Cash
Accounts, Deposits and Money Movements. Subject to the terms and
conditions set forth in this Section 7, the Fund hereby authorizes the
Custodian to open and maintain, with itself or with Subcustodians, cash
accounts in United States Dollars, in such other currencies as are the
currencies of the countries in which the Fund maintains Investments or in such
other currencies as the Fund shall from time to time request by Instruction.
Notwithstanding anything in this Agreement to the contrary, the Fund shall be
liable as principal for any overdrafts occurring in any cash accounts.
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7.1
Types of Cash Accounts. Cash accounts opened on the books of the Custodian (Principal
Accounts) shall be opened in the name of the Fund. Such accounts collectively shall
be a deposit obligation of the Custodian and shall be subject to the terms of this
Section 7 and the general liability provisions contained in Section 9. Cash accounts
opened on the books of a Subcustodian may be opened in the name of the Fund or the
Custodian or in the name of the Custodian for its customers generally (Agency Accounts).
Such deposits shall be obligations of the Subcustodian and shall be treated as an
Investment of the Fund. Accordingly, the Custodian shall be responsible for exercising
reasonable care in the administration of such accounts, but shall not be liable for their
repayment in the event the Subcustodian, by reason of its bankruptcy, insolvency or
otherwise, fails to make repayment. In connection with the services provided hereunder,
the Custodian is hereby directed to open cash accounts on its books and records from time
to time for the purposes of receiving subscriptions and/or processing redemptions on
behalf of the Fund, and/or for the purposes of aggregating, netting and/or clearing
transactions (including, without limitation foreign exchange, repurchase agreements,
capital stock activity, expense payment) or other administrative purposes on behalf of
the Fund or the Fund and affiliated funds (each an “Account”). Each such
Account shall be subject to the terms and conditions of this Agreement (including,
without limitation Section 7.6) and the Fund shall be liable for the satisfaction of its
own obligations in connection with each Account; provided however, the Fund shall not be
liable for the obligations of any other affiliated fund thereunder. |
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7.1.1
Administrative Accounts. In connection with the services provided
hereunder, the Custodian is hereby directed to open cash accounts on its books and
records from time to time for the purposes of receiving subscriptions and/or processing
redemptions on behalf of the Fund and/or for the purposes of aggregating, netting and/or
clearing transactions (including, without limitation foreign exchange, repurchase
agreements, capital stock activity, expense payment) or other administrative purposes,
each on behalf of the Fund (each an “Account”). Each such Account shall be
subject to the terms and conditions of this Agreement and the Fund shall be liable for
the satisfaction of its obligations in connection with each Account. |
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7.2
Payments and Credits with Respect to the Cash Accounts. The Custodian shall
make payments from or deposits to any of the cash accounts in the course of carrying out
its administrative duties, including but not limited to income collection with respect to
the Fund’s Investments, and otherwise in accordance with Instructions. The Custodian
and its Subcustodians shall be required to credit amounts to the cash accounts only when
moneys are actually received in cleared funds in accordance with banking practice in the
country and currency of deposit. Any credit made to any Principal or Agency Account
before actual receipt of cleared funds shall be provisional and may be reversed by the
Custodian in the event such payment is not actually collected. Unless otherwise
specifically agreed in writing by the Custodian or any Subcustodian, all deposits shall
be payable only at the branch of the Custodian or Subcustodian where the deposit is made
or carried. |
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7.3
Currency and Related Risks. The Fund bears the risks of holding or
transacting in any currency, including any xxxx to market exposure associated with a
foreign exchange transaction undertaken with the Custodian. The Custodian shall not be
liable for any loss or damage arising from the applicability of any law or regulation now
or hereafter in effect, or from the occurrence of any event, which may delay or affect
the transferability, convertibility or availability of any currency in the country (a) in
which such Principal or Agency Accounts are maintained or (b) in which such currency is
issued, and in no event shall the Custodian be obligated to make payment of a deposit
denominated in a currency during the period during which its transferability,
convertibility or availability has been affected by any such law, regulation or event.
Without limiting the generality of the foregoing, neither the Custodian nor any
Subcustodian shall be required to repay any deposit made at a foreign branch of either
the Custodian or Subcustodian if such branch cannot repay the deposit due to a cause for
which the Custodian would not be responsible in accordance with the terms of Section 9 of
this Agreement unless the Custodian or such Subcustodian expressly agrees in writing to
repay the deposit under such circumstances. All currency transactions in any account
opened pursuant to this Agreement are subject to exchange control regulations of the
United States and of the country where such currency is the lawful currency or where the
account is maintained. Any taxes, costs, charges or fees imposed on the convertibility of
a currency held by the Fund shall be for the account of the Fund. |
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7.4
Foreign Exchange Transactions. The Custodian shall, subject to the terms
of this Section, settle foreign exchange transactions (including contracts, futures,
options and options on futures) on behalf and for the account of the Fund with such
currency brokers or banking institutions, including Subcustodians, as the Fund may direct
pursuant to Instructions. The Custodian may act as principal in any foreign exchange
transaction with the Fund in accordance with Section 7.4.2 of this Agreement. The
obligations of the Custodian in respect of all foreign exchange transactions (whether or
not the Custodian shall act as principal in such transaction) shall be contingent on the
free, unencumbered transferability of the currency transacted on the actual settlement
date of the transaction. |
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7.4.1
Third Party Foreign Exchange Transactions. The Custodian shall process
foreign exchange transactions (including without limitation contracts, futures, options,
and options on futures), where any third party acts as principal counterparty to the Fund
on the same basis it performs duties as agent for the Fund with respect to any other of
the Fund’s Investments. Accordingly the Custodian shall only be responsible for
delivering or receiving currency on behalf of the Fund in respect of such contracts
pursuant to Instructions. The Custodian shall not be responsible for the failure of any
counterparty (including any Subcustodian) in such agency transaction to perform its
obligations thereunder. The Custodian (a) shall transmit cash and Instructions to and
from the currency broker or banking institution with which the Fund has executed a
foreign exchange contract or option, (b) may make free outgoing payments of cash in the
form of Dollars or foreign currency without receiving confirmation of a foreign exchange
contract or option or confirmation that the countervalue currency completing the foreign
exchange contract has been delivered or received or that the option has been delivered or
received, and (c) shall hold in safekeeping all confirmations, certificates and other
documents and agreements received by the Custodian and evidencing or relating to such
foreign exchange transactions. The Fund accepts full responsibility for its use of
third-party foreign exchange dealers and for execution of the foreign exchange contracts
and options and understands that the Fund shall be responsible for any and all costs and
interest charges which may be incurred by the Fund or the Custodian as a result of the
failure or delay of third parties to deliver foreign exchange. |
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7.4.2
Foreign Exchange with the Custodian as Principal. The Custodian, as
principal, may undertake such foreign exchange transactions with the Fund as the
Custodian and the Fund may agree from time to time. In this event, the foreign exchange
transaction will be performed in accordance with the particular agreement of the parties,
or in the event a principal foreign exchange transaction is initiated by Instruction in
the absence of specific agreement, the transaction will be performed in accordance with
the usual commercial terms of the Custodian. In the event that the Fund defaults on the
settlement of any such foreign exchange transaction with the Custodian, the Fund shall be
liable for contracted currency of the transaction together with any xxxx to market
exposure associated with the replacement purchase of the contracted currency undertaken
with the Custodian. |
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7.5
Delays. If no event of Force Majeure shall have occurred and be continuing
and in the event that a delay shall have been caused by the negligence or willful
misconduct of the Custodian in carrying out an Instruction to credit or transfer cash,
the Custodian shall be liable to the Fund: (a) with respect to Principal Accounts, for
interest to be calculated at the rate customarily paid on such deposit and currency by
the Custodian on overnight deposits at the time the delay occurs for the period from the
day when the transfer should have been effected until the day it is in fact effected;
and, (b) with respect to Agency Accounts, for interest to be calculated at the rate
customarily paid on such deposit and currency by the Subcustodian on overnight deposits
at the time the delay occurs for the period from the day when the transfer should have
been effected until the day it is in fact effected. The Custodian shall not be liable for
delays in carrying out Instructions to transfer cash which are not due to the Custodian’s
own negligence or willful misconduct. |
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7.6Advances. If,
for any reason in connection with this Agreement the Custodian or any Subcustodian makes
an Advance to facilitate settlement or otherwise for the benefit of the Fund (whether or
not any Principal or Agency Account shall be overdrawn either during, or at the end of,
any Business Day), the Fund hereby does: |
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7.6.1
acknowledge that the Fund shall have no right, title or interest in or to any Investments
purchased with such Advance or proceeds of such Investments, and that any credit to an
account of Fund shall be provisional, until: (a) the debit of the Principal or Agency
Account by Custodian for an amount equal to Advance Costs; and/or (b) if such debit
produces an overdraft in such account, reimbursement to the Custodian or Subcustodian for
the amount of such overdraft; |
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7.6.2
acknowledge that the Custodian has an automatically perfected statutory security interest
in Investments purchased with any such Advance pursuant to Section 9-206 of the
Uniform Commercial Code as in effect in the State of New York from time to time; |
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7.6.3
in addition, in order to secure the obligations of the Fund to pay or perform any and all
obligations of the Fund pursuant to this Agreement, including without limitation to repay
any Advance made pursuant to this Agreement, grant to the Custodian a security interest
in all Investments and proceeds thereof (as defined in the Uniform Commercial Code as
currently in effect in the State of New York); and agree to take, and agree that the
Custodian may take, in respect of the security interest referenced above, any further
actions that the Custodian may reasonably require. |
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7.7
Custodian’s Rights Neither the Custodian nor any Subcustodian
shall be obligated to make any Advance or to allow an Advance to occur to the Fund, and
in the event that the Custodian or any Subcustodian does make or allow an Advance, any
such Advance and any transaction giving rise to such Advance shall be for the account and
risk of the Fund and shall not be deemed to be a transaction undertaken by the Custodian
for its own account and risk. If such Advance shall have been made or allowed by a
Subcustodian or any other person, the Custodian may assign all or part of its security
interest referenced above and any other rights granted to the Custodian hereunder to such
Subcustodian or other person. If the Fund shall fail to repay the Advance Costs when due,
the Custodian or its assignee, as the case may be, shall be entitled to a portion of the
available cash balance in any Agency or Principal Account equal to such Advance Costs,
and the Fund authorizes the Custodian, on behalf of the Fund, to pay an amount equal to
such Advance Costs irrevocably to such Subcustodian or other person, and to dispose of
any property in such Account to the extent necessary to make such payment. Any
Investments credited to accounts subject to this Agreement created pursuant hereto shall
be treated as financial assets credited to securities accounts under Articles 8 and 9 of
the Uniform Commercial Code as in effect in the State of New York from time to time.
Accordingly, the Custodian and any Subcustodian shall have the rights and benefits of a
secured creditor that is a securities intermediary under such Articles 8 and 9. |
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7.8
Integrated Account. For purposes hereof, deposits maintained in all
Principal Accounts (whether or not denominated in Dollars) shall collectively constitute
a single and indivisible current account with respect to the Fund’s obligations to
the Custodian or its assignee, and balances in the Principal Accounts shall be available
for satisfaction of the Fund’s obligations under this Section 7. The Custodian shall
further have a right of offset against the balances in any Agency Account maintained
hereunder to the extent that the aggregate of all Principal Accounts is overdrawn. |
8. Subcustodians
and Securities Depositories. Subject to the provisions hereinafter set
forth in this Section 8, the Fund hereby authorizes the Custodian to utilize
Securities Depositories to act on behalf of the Fund and to appoint from time
to time and to utilize Subcustodians. With respect to securities and funds held
by a Subcustodian, either directly or indirectly (including by a Securities
Depository or Clearing Corporation), notwithstanding any provisions of this
Agreement to the contrary, payment for securities purchased and delivery of
securities sold may be made prior to receipt of securities or payment,
respectively, and securities or payment may be received in a form in accordance
with (a) governmental regulations, (b) rules of Securities Depositories and
Clearing Agencies, (c) generally accepted trade practice in the applicable
local market, (d) the terms and characteristics of the particular Investment,
or (e) the terms of Instructions.
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8.1
Domestic Subcustodians and Securities Depositories. The Custodian may
deposit and/or maintain, either directly or through one or more Agents appointed by the
Custodian, Investments of the Fund in any Securities Depository in the United States,
including The Depository Trust Company, provided such Depository meets applicable
requirements of the Federal Reserve Bank or of the Securities and Exchange Commission.
The Custodian may,, from time to time, appoint any bank as defined in Section 2(a)(5) of
the 1940 Act meeting the requirements of a custodian under Section 17(f) of the 1940 Act
and the rules and regulations thereunder to act on behalf of the Fund as a Subcustodian
for purposes of holding Investments of the Fund in the United States. |
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8.2
Foreign Subcustodians and Securities Depositories. Unless instructed
otherwise by the Fund, the Custodian may deposit and/or maintain non-U.S. Investments of
the Fund in any non-U.S. Securities Depository provided such Securities Depository meets
the requirements of an “eligible securities depository” under Rule 17f-7
promulgated under the 1940 Act, or any successor rule or regulation (“Rule 17f-7”)
or which by order of the Securities and Exchange Commission is exempted therefrom. Prior
to the time that securities are placed with such depository, but subject to the
provisions of Section 8.2.4 below, the Custodian shall have prepared an assessment of the
custody risks associated with maintaining assets with the Securities Depository and shall
have established a system to monitor such risks on a continuing basis in accordance with
subsection 8.2.3 of this Section. Additionally, the Custodian may, from time to time,
appoint (a) any bank, trust company or other entity meeting the requirements of an “eligible
foreign custodian” under Rule 17f-5 or which by order of the Securities and
Exchange Commission is exempted therefrom, or (b) any bank as defined in Section 2(a)(5)
of the 1940 Act meeting the requirements of a custodian under Section 17(f) of the 1940
Act and the rules and regulations thereunder, to act on behalf of the Fund as a
Subcustodian for purposes of holding Investments of the Fund outside the United States. |
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8.3Delegation
of Board Review of Subcustodians.From time to time, the Custodian may agree to
perform certain reviews of Subcustodians and of Subcustodian Contracts as the delegate of
the Fund’s Board. In such event, the Custodian’s duties and obligations with
respect to this delegated review will be performed in accordance with the terms of the
attached 17f-5 Delegation Schedule to this Agreement. |
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8.4Board
Approval of Foreign Subcustodians. Unless and except to the extent that the Board
has delegated to the Custodian and the Custodian has accepted delegation of review of
certain matters concerning the appointment of Subcustodians pursuant to Subsection 8.3,
the Custodian shall, prior to the appointment of any Subcustodian for purposes of holding
Investments of the Fund outside the United States, obtain written confirmation of the
approval of the Board of Trustees or Directors of the Fund with respect to (a) the
identity of a Subcustodian, and (b) the Subcustodian agreement which shall govern such
appointment, such approval to be signed by an Authorized Person. An Instruction to open
an account in a given country shall comprise authorization of the Custodian to hold
assets in such country in accordance with the terms of this Agreement. The Custodian
shall not be required to make independent inquiry as to the authorization of the Fund to
invest in such country. |
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8.5
Monitoring and Risk Assessment of Securities Depositories.Prior to the
placement of any assets of the Fund with a non-U.S. Securities Depository, the Custodian:
(a) shall provide to the Fund or its authorized representative an assessment of the
custody risks associated with maintaining assets within such Securities Depository; and
(b) shall have established a system to monitor the custody risks associated with
maintaining assets with such Securities Depository on a continuing basis and to promptly
notify the Fund or its Investment Adviser of any material changes in such risk. In
performing its duties under this subsection, the Custodian shall use reasonable care and
may rely on such reasonable sources of information as may be available including but not
limited to: (i) published ratings; (ii) information supplied by a Subcustodian that is a
participant in such Securities Depository; (iii) industry surveys or publications; (iv)
information supplied by the depository itself, by its auditors (internal or external) or
by the relevant Foreign Financial Regulatory Authority. It is acknowledged that
information procured through some or all of these sources may not be independently
verifiable by the Custodian and that direct access to Securities Depositories is limited
under most circumstances. Accordingly, the Custodian shall not be responsible for errors
or omissions in its duties hereunder provided that it has performed its monitoring and
assessment duties with reasonable care. The risk assessment shall be provided to the Fund
or its Investment Advisor by such means as the Custodian shall reasonably establish.
Advices of material change in such assessment may be provided by the Custodian in the
manner established as customary between the Fund and the Custodian for transmission of
material market information. |
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8.6
Responsibility for Subcustodians. Except as provided in the last sentence
of this Section 8.6, the Custodian shall be liable to the Fund for any loss or damage to
the Fund caused by or resulting from the acts or omissions of any Subcustodian to the
extent that such acts or omissions would be deemed to be negligence, gross negligence or
willful misconduct in accordance with the terms of the relevant subcustodian agreement
under the laws, circumstances and practices prevailing in the place where the act or
omission occurred. The liability of the Custodian in respect of the countries and
Subcustodians designated by the Custodian, from time to time on the Global Custody
Network Listing shall be subject to the additional condition that the Custodian actually
recovers such loss or damage from the Subcustodian. |
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8.7
New Countries. The Fund shall be responsible for informing the
Custodian sufficiently in advance of a proposed investment which is to be held in a
country in which no Subcustodian is authorized to act in order that the Custodian shall,
if it deems appropriate to do so, have sufficient time to establish a subcustodial
arrangement in accordance herewith. In the event, the Custodian is unable to establish
such arrangements prior to the time the investment is to be acquired, the Custodian is
authorized to designate at its discretion a local safekeeping agent, and the use of the
local safekeeping agent shall be at the sole risk of the Fund, and accordingly the
Custodian shall be responsible 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. |
9. Responsibility
of the Custodian. In performing its duties and obligations
hereunder, the Custodian shall use reasonable care under the facts and
circumstances prevailing in the market where performance is effected. Subject
to the specific provisions of this Section, the Custodian shall be liable for
any direct damage incurred by the Fund in consequence of the Custodian’s
negligence, bad faith or willful misconduct. In no event shall the Custodian be
liable hereunder for any special, indirect, punitive or consequential damages
arising out of, pursuant to or in connection with this Agreement even if the
Custodian has been advised of the possibility of such damages. It is agreed
that the Custodian shall have no duty to assess the risks inherent in the Fund’s
Investments or to provide investment advice with respect to such Investments
and that the Fund as principal shall bear any risks attendant to particular
Investments such as failure of counterparty or issuer.
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9.1Limitations
of Performance. The Custodian shall not be responsible under this Agreement for
any failure to perform its duties, and shall not be liable hereunder for any loss or
damage in association with such failure to perform for or in consequence of the following
causes: |
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9.1.1
Force Majeure.Force Majeure shall mean any circumstance or
event which is beyond the reasonable control of the Custodian, a Subcustodian or any
agent of the Custodian or a Subcustodian and which adversely affects the performance by
the Custodian of its obligations hereunder, by the Subcustodian of its obligations under
its Subcustody Agreement or by any other Agent of the Custodian or the Subcustodian,
including any event caused by, arising out of or involving (a) an act of God, (b)
accident, fire, water or wind damage or explosion, (c) any computer, system or other
equipment failure or malfunction caused by any computer virus or the malfunction or
failure of any communications medium, (d) any interruption of the power supply or other
utility service, (e) any strike or other work stoppage, whether partial or total, (f) any
delay or disruption resulting from or reflecting the occurrence of any Country or
Sovereign Risk, (g) any disruption of, or suspension of trading in, the securities,
commodities or foreign exchange markets, whether or not resulting from or reflecting the
occurrence of any Country or Sovereign Risk, (h) any encumbrance on the transferability
of a currency or a currency position on the actual settlement date of a foreign exchange
transaction, whether or not resulting from or reflecting the occurrence of any Country or
Sovereign Risk, or (i) any other cause similarly beyond the reasonable control of the
Custodian. |
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9.1.2
Country Xxxx.Xxxxxxx Risk shall mean, with respect to the
acquisition, ownership, settlement or custody of Investments in a jurisdiction, all risks
relating to, or arising in consequence of, systemic and markets factors affecting the
acquisition, payment for or ownership of Investments including (a) the prevalence of
crime and corruption, (b) the inaccuracy or unreliability of business and financial
information, (c) the instability or volatility of banking and financial systems, or the
absence or inadequacy of an infrastructure to support such systems, (d) custody and
settlement infrastructure of the market in which such Investments are transacted and
held, (e) the acts, omissions and operation of any Securities Depository, (f) the risk of
the bankruptcy or insolvency of banking agents, counterparties to cash and securities
transactions, registrars or transfer agents, and (g) the existence of market conditions
which prevent the orderly execution or settlement of transactions or which affect the
value of assets. |
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9.1.3
Sovereign Risk.Sovereign Risk shall mean, in respect of any
jurisdiction, including the United States of America, where Investments are acquired or
held hereunder or under a Subcustody Agreement, (a) any act of war, terrorism, riot,
insurrection or civil commotion, (b) the imposition of any investment, repatriation or
exchange control restrictions by any Governmental Authority, (c) the confiscation,
expropriation or nationalization of any Investments by any Governmental Authority,
whether de facto or de jure, (d) any devaluation or revaluation of the currency, (e) the
imposition of taxes, levies or other charges affecting Investments, (f) any change in the
Applicable Law, or (g) any other economic or political risk incurred or experienced. |
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9.2. Limitations
on Liability. The Custodian shall not be liable for any loss, claim, damage
or other liability arising from the following causes: |
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9.2.1Failure
of Third Parties. The failure of any third party including: (a) any issuer
of Investments or Book-Entry Agent or other agent of an issuer; (b) any counterparty with
respect to any Investment, including any issuer of exchange-traded or other futures,
option, derivative or commodities contract; (c) failure of an Investment Advisor, foreign
custody manager or other agent of the Fund; or (d) failure of other third parties
similarly beyond the control or choice of the Custodian. |
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9.2.2Information
Sources. The Custodian may rely upon information received from issuers of
Investments or agents of such issuers, information received from Subcustodians and from
other commercially reasonable sources such as commercial data bases and the like, but
shall not be responsible for specific inaccuracies in such information, provided that the
Custodian has relied upon such information in good faith, or for the failure of any
commercially reasonable information provider. |
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9.2.3
Reliance on Instruction. Action by the Custodian or the Subcustodian in
accordance with an Instruction, even when such action conflicts with, or is contrary to
any provision of, the Fund’s declaration of trust, certificate of incorporation or
by-laws or other constitutive document, Applicable Law, or actions by the trustees,
directors or shareholders of the Fund. |
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9.2.4Restricted
Securities. The limitations inherent in the rights, transferability or
similar investment characteristics of a given Investment of the Fund. |
10. Indemnification. The
Fund hereby indemnifies the Custodian and each Subcustodian, and their
respective Agents, nominees and the partners, employees, officers and
directors, and agrees to hold each of them harmless from and against all claims
and liabilities, including counsel fees and taxes, incurred or assessed against
any of them in connection with the performance of this Agreement and any
Instruction. If a Subcustodian or any other person indemnified under the
preceding sentence, gives written notice of claim to the Custodian, the
Custodian shall promptly give written notice to the Fund. Not more than thirty
days following the date of such notice, unless the Custodian shall be liable
under Section 8 hereof in respect of such claim, the Fund will pay the amount
of such claim or reimburse the Custodian for any payment made by the Custodian
in respect thereof.
12
11. Reports
and Records. The Custodian shall:
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11.1
create and maintain records relating to the performance of its obligations under this
Agreement; |
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11.2
make available to the Fund, its auditors, agents and employees, upon reasonable request
and during normal business hours of the Custodian, all records maintained by the
Custodian pursuant to Section 11.1 above, subject, however, to all reasonable security
requirements of the Custodian then applicable to the records of its custody customers
generally; and |
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11.3
make available to the Fund all Electronic Reports; it being understood that the Custodian
shall not be liable hereunder for the inaccuracy or incompleteness thereof or for errors
in any information included therein. |
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11.4
The Fund shall examine all records, however produced or transmitted, promptly upon
receipt and notify the Custodian promptly of any discrepancy or error. Unless the Fund
delivers written notice of any such discrepancy or error within a reasonable time after
its receipt of the records, the records shall be deemed to be true and accurate. |
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11.5
The Fund acknowledges that the Custodian obtains information on the value of assets from
outside sources which may be utilized in certain reports made available to the Fund. The
Custodian deems such sources to be reliable but the Fund acknowledges and agrees that the
Custodian does not verify such information nor make any representations or warrantees as
to its accuracy or completeness and accordingly shall be without liability in selecting
and using such sources and furnishing such information. |
12. Miscellaneous.
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12.1
Powers of Attorney, etc. The Fund will promptly execute and deliver,
upon request, such proxies, powers of attorney or other instruments as may be necessary
or desirable for the Custodian to provide, or to cause any Subcustodian to provide,
custody services. |
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12.2
Entire Agreement; Amendment. This Agreement constitutes the entire
understanding and agreement of the parties hereto and supersedes any other oral or
written agreements heretofore in effect between the Fund and the Custodian 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, provided, however, that an Instruction shall, whether
or not such Instruction shall constitute a waiver, amendment or modification for purposes
hereof, be deemed to have been accepted by the Custodian when it commences actions
pursuant thereto or in accordance therewith. In the event of a conflict between the terms
of this Agreement and the terms of a service level agreement or other operating agreement
in place between the parties from time to time, the terms of this Agreement shall
control. |
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12.3
Binding Effect; Assignment. This Agreement shall be binding upon and
shall inure to the benefit of the Custodian/Administrator and the Fund and their
successors and assignees, provided that the Fund may not assign this Agreement without
the prior written consent of the Custodian. Each party agrees that only the parties to
this Agreement and/or their successors in interest shall have a right to enforce the
terms of this Agreement. Accordingly, no client of the Fund or other third party shall
have any rights under this Agreement and such rights are explicitly disclaimed by the
parties. |
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12.4
GOVERNING LAW, JURISDICTION AND VENUE. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO THE CONFLICTS OF LAW PRINCIPLES OF SUCH STATE. THE PARTIES HERETO
IRREVOCABLY CONSENT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK
AND THE FEDERAL COURTS LOCATED IN NEW YORK CITY. THE FUND IRREVOCABLY WAIVES ANY
OBJECTION IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING
IN ANY OF THE AFORESAID COURTS AND ANY CLAIM THAT ANY SUCH ACTION OR PROCEEDING HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM. FURTHERMORE, EACH PARTY HERETO HEREBY IRREVOCABLY
WAIVES ANY RIGHT THAT IT MAY HAVE TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY. |
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12.5
Notices. Notices and other writings contemplated by this Agreement,
other than Instructions, shall be delivered (a) by hand, (b) by first class registered or
certified mail, postage prepaid, return receipt requested, (c) by a nationally recognized
overnight courier, or (d) by facsimile transmission, provided that any notice or other
writing sent by facsimile transmission shall also be mailed, postage prepaid, to the
party to whom such notice is addressed. All such notices shall be addressed, as follows: |
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If to the Fund: |
[ |
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Attn: ] |
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Telephone: [ ] |
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Facsimile [ ] |
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If to the Custodian: |
Xxxxx Brothers Xxxxxxxx & Co. |
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00 Xxxxx Xxxxxx |
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Xxxxxx, Xxxxxxxxxxxxx 00000 |
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Attn: |
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Telephone: (000) 000-0000 |
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Facsimile: (617) 772-XXXX, |
or
such other address as the Fund or the Custodian may have designated in writing to the
other.
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12.6
Headings. Paragraph headings included herein are for convenience of
reference only and shall not modify, define, expand or limit any of the terms or
provisions hereof. |
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12.7
Severability. In the event any provision of this Agreement
is determined to be void or unenforceable, such determination shall not affect
the remainder of this Agreement, which shall continue to be in force. |
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12.8
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 the Fund and
the Custodian. A photocopy or telefax of the Agreement shall be acceptable evidence of
the existence of the Agreement and the Custodian shall be protected in relying on the
photocopy or telefax until the Custodian has received the original of the Agreement. |
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12.9
Confidentiality. The parties hereto agree that each shall treat
confidentially the terms and conditions of this Agreement and all information provided by
each party to the other regarding its business and operations. All confidential
information provided by a party hereto shall be used by any other party hereto solely for
the purpose of rendering or obtaining services pursuant to this Agreement and, except as
may be required in carrying out this Agreement, shall not be disclosed to any third party
without the prior consent of such providing party. The foregoing shall not be applicable
to any information that is publicly available when provided or thereafter becomes
publicly available other than through a breach of this Agreement, or that is required to
be disclosed by or to any bank examiner of the Custodian or any Subcustodian, any
Regulatory Authority, any auditor of the parties hereto, or by judicial or administrative
process or otherwise by Applicable Law. |
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12.10Tape-recording.
The Fund on behalf of itself and its Customers 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 from any Authorized Person. This authorization will
remain in effect until and unless revoked by the Fund in writing. The Fund further agrees
to solicit valid written or other consent from any of its employees with respect to
telephone communications to the extent such consent is required by applicable law. |
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12.11
Counsel/ Certified Public Accountant. In fulfilling its duties hereunder,
the Custodian shall be entitled to receive and act upon the advice of (i) counsel and/or
a certified public accountant regularly retained by the Custodian in respect of such
matters, (ii) counsel and/or a certified public accountant for the Fund or (iii) such
counsel or certified public accountant 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. |
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12.12
Conflict. Nothing contained in this Agreement shall prevent the
Custodian and its associates from (i) dealing as a principal or an intermediary in the
sale, purchase or loan of the Fund’s Investments to, or from the Custodian or its
associates; (ii) acting as a custodian, a subcustodian, a trustee, an agent, securities
dealer, an investment manager or in any other capacity for any other client whose
interests may be adverse to the interest of the Fund; or (iii) buying, holding, lending,
and dealing in any way in any assets for the benefit of its own account, or for the
account of any other client whose interests may be adverse to the Fund notwithstanding
that the same or similar assets may be held or dealt in by, or for the account of the
Fund by the Custodian. The Fund hereby voluntarily consents to, and waives any potential
conflict of interest between the Custodian and/or its associates and the Fund, and agrees
that: |
|
(a)
the Custodian’s and/or its associates’ engagement in any such
transaction shall not disqualify the Custodian from continuing to perform
as the custodian of the Fund under this Agreement; |
|
(b)
the Custodian and/or its associates shall not be under any duty to
disclose any information in connection with any such transaction to the
Fund; |
|
(c)
the Custodian and/or its associates shall not be liable to account to the
Fund for any profits or benefits made or derived by or in connection with
any such transaction; and |
|
(d)
the Fund shall use all reasonable efforts to disclose this provision,
among other provisions in this Agreement, to its shareholders. |
13. Definitions. The
following defined terms will have the respective meanings set forth below.
|
13.1
Advance(s) shall mean any extension of credit by or through the
Custodian or by or through any Subcustodian and shall include, without limitation,
amounts due to the Custodian as the principal counterparty to any foreign exchange
transaction with the Fund as described in Section 7.4.2 hereof, or paid to third parties
for account of the Fund or in discharge of any expense, tax or other item payable by the
Fund. |
|
13.2
Advance Costs shall mean any Advance, interest on the Advance and
any related expenses, including without limitation any xxxx to market loss of the
Custodian or Subcustodian on any Investment to which Section 7.6.1 applies. |
|
13.3
Agency Account(s) shall mean any deposit account opened on the books
of a Subcustodian or other banking institution in accordance with Section 7.1 hereof. |
|
13.4
Agent(s) shall have the meaning set forth in the last sentence of Section 6 hereof. |
|
13.5
Applicable Law shall mean with respect to each jurisdiction, all (a)
laws, statutes, treaties, regulations, guidelines (or their equivalents); (b) orders,
interpretations, licenses and permits; and (c) judgments, decrees, injunctions, writs,
orders and similar actions by a court of competent jurisdiction; compliance with which is
required or customarily observed in such jurisdiction. |
|
13.6
Authorized Person(s) shall mean any person or entity authorized to
give Instructions on behalf of the Fund in accordance with Section 4.1 hereof. |
|
13.7
Book-entry Agent(s) shall mean an entity acting as agent for the
issuer of Investments for purposes of recording ownership or similar entitlement to
Investments, including without limitation a transfer agent or registrar. |
15
|
13.8
Clearing Corporation shall mean any entity or system established for
purposes of providing securities settlement and movement and associated functions for a
given market(s). |
|
13.9
Delegation Schedule shall mean any separate schedule entered into
between the Custodian and the Fund or its authorized representative with respect to
certain matters concerning the appointment and administration of Subcustodians delegated
to the Custodian pursuant to Rule 17f-5 under the 1940 Act. |
|
13.10
Electronic and Online Services Schedule shall mean any separate
agreement entered into between the Custodian and the Fund or its authorized
representative with respect to certain matters concerning certain electronic and online
services as described therein and as may be made available from time to time by the
Custodian to the Fund. |
|
13.11Electronic
Reports shall mean any reports prepared by the Custodian and remitted to
the Fund or its authorized representative via the internet or electronic mail. |
|
13.12
Foreign Custody Manager shall mean the Fund’s foreign custody
manager appointed pursuant to Rule 17f-5 of the 1940 Act. |
|
13.13
Foreign Financial Regulatory Authority shall have the meaning given
by Section 2(a)(50) of the 0000 Xxx. |
|
13.14
Funds Transfer Services Schedule shall mean any separate schedule
entered into between the Custodian and the Fund or its authorized representative with
respect to certain matters concerning the processing of payment orders from Principal
Accounts of the Fund. |
|
13.15
Global Custody Network Listing shall mean the Countries and
Subcustodians approved for Investments in non-U.S. Markets. |
|
13.16
Instruction(s) shall have the meaning assigned in Section 4 hereof. |
|
13.17
Investment Advisor shall mean any person or entity who is an
Authorized Person to give Instructions with respect to the investment and reinvestment of
the Fund’s Investments. |
|
13.18
Investment(s) shall mean any investment asset of the Fund, including
without limitation securities, bonds, notes, and debentures as well as receivables,
derivatives, contractual rights or entitlements and other intangible assets, but shall
not include any Principal Account. |
|
13.19
Margin Account shall have the meaning set forth in Section 6.4
hereof. |
|
13.20
Principal Account(s) shall mean deposit accounts of the Fund carried
on the books of BBH&Co. as principal in accordance with Section 7 hereof. |
|
13.21
Safekeeping Account shall mean an account established on the books
of the Custodian or any Subcustodian for purposes of segregating the interests of the
Fund (or clients of the Custodian or Subcustodian) from the assets of the Custodian or
any Subcustodian. |
|
13.22
Securities Depository shall mean a central or book entry system or
agency established under Applicable Law for purposes of recording the ownership and/or
entitlement to investment securities for a given market that, if a foreign Securities
Depository, meets the definitional requirements of Rule 17f-7 under the 1940 Act. |
|
13.23
Subcustodian(s) shall mean each foreign bank appointed by the
Custodian pursuant to Section 8 hereof, but shall not include Securities Depositories. |
16
|
13.24
Tri-Party Agreement shall have the meaning set forth in Section 6.4
hereof. |
|
13.25
1940 Act shall mean the Investment Company Act of 1940. |
14. Compensation. The
Fund agrees to pay to the Custodian (a) a fee in an amount set forth in the fee
letter between the Fund and the Custodian in effect on the date hereof or as
amended from time to time, and (b) all out-of-pocket expenses incurred by the
Custodian, including the fees and expenses of all Subcustodians and other
amounts paid by the Custodian to a third party for account or benefit of the
Fund, and payable from time to time. Amounts payable by the Fund under and
pursuant to this Section 14 shall be payable by wire transfer to the Custodian
at BBH&Co. in New York, New York.
15. Termination. This
Agreement may be terminated by either party in accordance with the provisions
of this Section. The provisions of this Agreement and any other rights or
obligations incurred or accrued by any party hereto prior to termination of
this Agreement shall survive any termination of this Agreement.
|
15.1
Term, Notice and Effect. This Agreement shall have an initial term
of three (3) years from the date hereof. Thereafter, this Agreement shall automatically
renew for successive one (1) year periods unless either party terminates this Agreement
by written notice effective no sooner than seventy-five (75) days following the date that
notice to such effect shall be delivered to the other party at its address set forth in
Section 12.5 hereof. Notwithstanding the foregoing provisions, either party may terminate
this Agreement at any time (a) for cause, which is a material breach of the Agreement not
cured within 60 days, in which case termination shall be effective upon written receipt
of notice by the non-terminating party, or (b) upon thirty (30) days written notice to
the other party in the event that either party is adjudged bankrupt or insolvent, or
there shall be commenced against such party a case under any applicable bankruptcy,
insolvency, or other similar law now or hereafter in effect. |
|
15.2
Notice and Succession. In the event a termination notice is given by
a party hereto, all reasonable costs and expenses associated with any required systems,
facilities, procedures, personnel, and other resourced modifications as well as the
movement of records and materials and the conversion thereof shall be paid by the Fund
for which Services shall cease to be performed hereunder. Furthermore, to the extent that
it appears impracticable given the circumstances to effect an orderly delivery of the
necessary and appropriate records of BBH to a successor within the time specified in the
notice of termination as aforesaid, BBH and the Fund agree that this Agreement shall
remain in full force and effect for such reasonable period as may be required to complete
necessary arrangements with a successor. |
|
15.3Successor
Custodian. In the event of the appointment of a successor custodian, it is agreed
that the Investments of the Fund held by the Custodian or any Subcustodian shall be
delivered to the successor custodian in accordance with reasonable Instructions. The
Custodian agrees to cooperate with the Fund in the execution of documents and performance
of other actions necessary or desirable in order to facilitate the succession of the new
custodian. If no successor custodian shall be appointed, the Custodian shall in like
manner transfer the Fund’s Investments in accordance with Instructions. |
|
15.4
Delayed Succession. If no Instruction has been given as of the
effective date of termination, Custodian may at any time on or after such termination
date and upon ten (10) consecutive calendar days written notice to the Fund either (a)
deliver the Investments of the Fund held hereunder to the Fund at the address designated
for receipt of notices hereunder; or (b) deliver any investments held hereunder to a bank
or trust company having a capitalization of $2,000,000 USD equivalent and operating under
the Applicable Law of the jurisdiction where such Investments are located, such delivery
to be at the risk of the Fund. In the event that Investments or moneys of the Fund remain
in the custody of the Custodian or its Subcustodians after the date of termination owing
to the failure of the Fund to issue Instructions with respect to their disposition or
owing to the fact that such disposition could not be accomplished in accordance with such
Instructions despite diligent efforts of the Custodian, the Custodian shall be entitled
to compensation for its services with respect to such Investments and moneys during such
period as the Custodian or its Subcustodians retain possession of such items and the
provisions of this Agreement shall remain in full force and effect until disposition in
accordance with this Section is accomplished. |
16. Compliance
Policies and Procedures. To assist the Fund in complying with
Rule 38a-1 of the 1940 Act, BBH&Co. represents that it has adopted written
policies and procedures reasonably designed to prevent violation of the federal
securities laws in fulfilling its obligations under the Agreement and that it
has in place a compliance program to monitor its compliance with those policies
and procedures. BBH&Co will upon request provide the Fund with information
about our compliance program as mutually agreed.
IN WITNESS WHEREOF, each of
the parties hereto has caused this Agreement to be duly executed as of the date first
above written.
The undersigned acknowledges that
(I/we) have received a copy of this document.
XXXXX BROTHERS XXXXXXXX & CO. |
[The Fund] |
By:__________________________________ |
By:________________________________ |
Name: |
Name: |
Title: |
Title: |
Date: |
Date: |
Xxxxx Brothers Xxxxxxxx & Co. (“BBH&Co.”)
is a limited partnership organized under the laws of the United States of America
(“US”) and is subject to the US Treasury Regulations set forth under 00 XXX 000,
et seq. BBH&Co. may not establish any relationship with any Prohibited Person or
Entity as such term is defined under the regulations. No customer of BBH&Co. may be
owned or controlled by an entity or person: (i) that is listed in the Annex to, or is
otherwise subject to the provisions of Executive Order 13224, issued on September 24, 2001
(“EO13224”)
<xxx.xxxxxxxx.xxx/xxxxxxx/xxxxxxxxxxx/xxxx/xxxxxxxx/xxxxxx/xxxxxx.xxx>; (ii)
whose name appears on the United States Treasury Department’s Office of Foreign
Assets Control (“OFAC”) most current list of “Specifically Designated
National and Blocked Persons” (which list may be published from time to time in
various mediums including, but not limited to, the OFAC website; (iii) who commits,
threatens to commit or supports “terrorism”, as such term is defined in EO13224;
or (iv) who is otherwise affiliated with any entity or person listed above (any and all
parties or persons described in clauses (i) through (iv) above are herein referred to as a
“Prohibited Person”).
18
FUNDS TRANSFER
SERVICES SCHEDULE TO CUSTODIAN AGREEMENT
1. Execution
of Payment Orders. Xxxxx Brothers Xxxxxxxx & Co. (the Custodian) is hereby
instructed by _________________________________ (the Fund) to execute each payment
order, whether denominated in United States dollars or other applicable
currencies, received by the Custodian in the Fund’s name as sender and
authorized and confirmed by an Authorized Person as defined in a Custodian
Agreement dated as of ______________, 2009 by and between the Custodian and the
Fund, as amended or restated from time thereafter (the Agreement),
provided that the Fund has sufficient available funds on deposit in a Principal
Account as defined in the Agreement and provided that the order (i) is received
by the Custodian in the manner specified in this Funds Transfer Services
Schedule or any amendment hereafter; (ii) complies with any written
instructions and restrictions of the Fund as set forth in this Funds Transfer
Services Schedule or any amendment hereafter; (iii) is authorized by the Fund
or is verified by the Custodian in compliance with a security procedure set
forth in Paragraph 2 below for verifying the authenticity of a funds transfer
communication sent to the Custodian in the name of the Fund or for the
detection of errors set forth in any such communication; and (iv) contains
sufficient data to enable the Custodian to process such transfer.
2. Security
Procedure. The Fund hereby elects to use the procedure selected below as
its security procedure (the Security Procedure). The Security Procedure
will be used by the Custodian to verify the authenticity of a payment order or
a communication amending or canceling a payment order. The Custodian will act
on instructions received provided the instruction is authenticated by the
Security Procedure. The Fund agrees and acknowledges in connection with (i) the
size, type and frequency of payment orders normally issued or expected to be
issued by the Fund to the Custodian, (ii) all of the security procedures
offered to the Fund by the Custodian, and (iii) the usual security procedures
used by customers and receiving banks similarly situated, that authentication
through the Security Procedure shall be deemed commercially reasonable for the
authentication of all payment orders submitted to the Custodian. The Fund
hereby elects (please choose one) the following Security Procedure as
described below:
|
[ ] |
BIDS
and BIDS Worldview Payment Products. BIDS and BIDS Worldview Payment Products,
are on-line payment order authorization facilities with built-in authentication
procedures. The Custodian and the Fund shall each be responsible for
maintaining the confidentiality of passwords or other codes to be used by them
in connection with BIDS. The Custodian will act on instructions received
through BIDS without duty of further confirmation unless the Fund notifies the
Custodian that its password is not secure. |
|
[ ] |
SWIFT.
The Custodian and the Fund shall comply with SWIFT’s authentication
procedures. The Custodian will act on instructions received via SWIFT provided
the instruction is authenticated by the SWIFT system. |
|
[ ] |
Computer
Transmission. The Custodian is able to accept transmissions sent from the Fund’s
computer facilities to the Custodian’s computer facilities provided such
transmissions are encrypted and digitally certified or are otherwise
authenticated in a reasonable manner based on available technology. Such
procedures shall be established in an operating protocol between the Custodian
and the Fund. |
|
[ ] |
Telefax
Instructions. A payment order transmitted to the Custodian by telefax
transmission shall transmitted by the Fund to a telephone number specified from
time to time by the Custodian for such purposes. If it detects no
discrepancies, the Custodian will follow one of the procedures below. |
|
1. |
If
the telefax requests a repetitive payment order, the Custodian may call the
Fund at its last known telephone number, request to speak to the Fund or
Authorized Person, and confirm the authorization and the details of the
payment order (a Callback); or |
|
2. |
If
the telefax requests a non-repetitive order, the Custodian will perform a
Callback. |
|
All
faxes must be accompanied by a fax cover sheet which indicates the sender’s name,
company name, telephone number, fax number, number of pages, and number of transactions
or instructions attached. |
19
|
[ ] |
Telephonic.
A telephonic payment order shall be called into the Custodian at the
telephone number designated from time to time by the Custodian for
that purpose. The caller shall identify herself/himself as an
Authorized Person. The Custodian shall obtain the payment order data
from the caller. The Custodian shall then: |
|
1. |
If
a telephonic repetitive payment order, the Custodian may perform a Callback; or |
|
2. |
If
a telephonic non-repetitive payment order, the Custodian will perform a
Callback. |
In the event the Fund chooses a
procedure which is not a Security Procedure as described above, the Fund agrees to be
bound by any payment order (whether or not authorized) issued in its name and accepted by
the Custodian in compliance with the procedure selected by the Fund.
3. Rejection
of Payment Orders. The Custodian shall give the Fund timely notice of the
Custodian’s rejection of a payment order. Such notice may be given in
writing or orally by telephone, each of which is hereby deemed commercially
reasonable. In the event the Custodian fails to execute a properly executable
payment order and fails to give the Fund notice of the Custodian’s
non-execution, the Custodian shall be liable only for the Fund’s actual
damages and only to the extent that such damages are recoverable under UCC 4A
(as defined in Paragraph 7 below). Notwithstanding anything in this Funds
Transfer Services Schedule and the Agreement to the contrary, the Custodian
shall in no event be liable for any consequential or special damages under this
Funds Transfer Services Schedule, whether or not such damages relate to
services covered by UCC 4A, even if the Custodian has been advised of the
possibility of such damages. Whenever compensation in the form of interest is
payable by the Custodian to the Fund pursuant to this Funds Transfer Services
Schedule, such compensation will be payable as specified in UCC 4A.
4. Cancellation
of Payment Orders. The Fund may cancel a payment order but the Custodian
shall have no liability for the Custodian’s failure to act on a
cancellation instruction unless the Custodian has received such cancellation
instruction at a time and in a manner affording the Custodian reasonable
opportunity to act prior to the Custodian’s execution of the order. Any
cancellation shall be sent and confirmed in the manner set forth in Paragraph 2
above.
5. Responsibility
for the Detection of Errors and Unauthorized Payment Orders. Except as may
be provided, the Custodian is not responsible for detecting any Fund error
contained in any payment order sent by the Fund to the Custodian. In the event
that the Fund’s payment order to the Custodian either (i) identifies the
beneficiary by both a name and an identifying or bank account number and the
name and number identify different persons or entities, or (ii) identifies any
bank by both a name and an identifying number and the number identifies a
person or entity different from the bank identified by name, execution of the
payment order, payment to the beneficiary, cancellation of the payment order or
actions taken by any bank in respect of such payment order may be made solely
on the basis of the number. The Custodian shall not be liable for interest on
the amount of any payment order that was not authorized or was erroneously
executed unless the Fund so notifies the Custodian within thirty (30) business
days following the Fund’s receipt of notice that such payment order had
been processed. If a payment order in the name of the Fund and accepted by the
Custodian was not authorized by the Fund, the liability of the parties will be
governed by the applicable provisions of UCC 4A.
6. Laws
and Regulations. The rights and obligations of the Custodian and the Fund
with respect to any payment order executed pursuant to this Funds Transfer
Services Schedule will be governed by any applicable laws, regulations,
circulars and funds transfer system rules, the laws and regulations of the
United States of America and of other relevant countries including exchange
control regulations and limitations on dealings or other sanctions, and
including without limitation those sanctions imposed under the law of the
United States of America by the Office of Foreign Assets Control. Any taxes,
fines, costs, charges or fees imposed by relevant authorities on such
transactions shall be for the account of the Fund.
7. Miscellaneous.
All accounts opened by the Fund or its authorized agents at the Custodian
subsequent to the date hereof shall be governed by this Funds Transfer
Schedule. All terms used in this Funds Transfer Services Schedule shall have
the meaning set forth in Article 4A of the Uniform Commercial Code as currently
in effect in the State of New York (UCC 4A) unless otherwise set forth herein.
The terms and conditions of this Funds Transfer Services Schedule are in
addition to, and do not modify or otherwise affect, the terms and conditions of
the Agreement and any other agreement or arrangement between the parties
hereto.
20
8. Indemnification.
The Custodian does not recommend the sending of instructions by telefax or
telephonic means as provided in Paragraph 2. BY ELECTING TO SEND
INSTRUCTIONS BY TELEFAX OR TELEPHONIC MEANS, THE FUND AGREES TO INDEMNIFY THE
CUSTODIAN AND ITS PARTNERS, OFFICERS AND EMPLOYEES FOR ALL LOSSES THEREFROM.
_________________
|
OPTIONAL:
The Custodian will perform a Callback if instructions are sent by telefax or telephonic
means as provided in Paragraph 2 above. THE FUND MAY, AT ITS OWN RISK AND BY HEREBY
AGREEING TO INDEMNIFY THE CUSTODIAN AND ITS PARTNERS, OFFICERS AND EMPLOYEES FOR
ALL LOSSES THEREFROM, ELECT TO WAIVE A CALLBACK BY THE CUSTODIAN BY
INITIALLING HERE:____ |
_________________
The undersigned acknowledges that
(I/we) have received a copy of this document.
Accepted and agreed:
XXXXX BROTHERS XXXXXXXX & CO. |
[The Fund] |
By:__________________________________ |
By:________________________________ |
Name: |
Name: |
Title: |
Title: |
Date: |
Date: |
21
ELECTRONIC AND ON-LINE
SERVICES SCHEDULE
This Electronic and On-Line Services
Schedule (this Schedule) to a Custodian Agreement dated as of
_____________________(as amended from time to time hereafter, the Agreement) by and
between Xxxxx Brothers Xxxxxxxx & Co. (we, us our) and ______________________
(you, your), provides general provisions governing your use of and access to the
Services (as hereinafter defined) provided to you by us via the Internet (at
xxx.xxxxx.xxx or such other URL as we may instruct you to use to access our
products) and via a direct dial-up connection between your computer and our computers,
as of ________________, _____, 2009 (the Effective Date). Use of the Services
constitutes acceptance of the terms and conditions of this Schedule, any Appendices
hereto, the Terms and Conditions posted on our web site, and any terms and conditions
specifically governing a particular Service or our other products, which may be set forth
in the Agreement or in a separate related agreement (collectively, the Related
Agreements).
|
You
will be granted access to our suite of online products, which may include, but shall not
be limited to the following services via the Internet or dial-up connection (each
separate service is a Service; collectively referred to as the Services): |
|
1.1. |
BIDS® and
BIDS WorldView, a system for effectuating securities and fund trade
instruction and execution, processing and handling instructions, and for
the input and retrieval of other information; |
|
1.2. |
F/X
WorldView, a system for executing foreign exchange trades; |
|
1.3. |
Fund
WorldView, a system for receiving fund and prospectus information; |
|
1.4. |
BBHCOnnect,
a system for placing securities trade instructions and following the
status and detail of trades; |
|
1.5. |
ActionViewSM,
a system for receiving certain corporate action information; |
|
1.6. |
Risk
View, an interactive portfolio risk analysis tool; and |
|
1.7. |
Such
other services as we shall from time to time offer. |
|
2.1. |
A
digital certificate and/or an encryption key may be required to access certain
Services. You may apply for a digital certificate and/or an encryption
key by following the procedures set forth at xxxx://xxx.xxx.xxx/xxxxx/.Xxx
also will need an identification code (ID) and password(s) (Password) to
access the Services. |
|
2.2. |
You
agree to safeguard your digital certificate and/or encryption key, ID, and
Password and not to give or make available, intentionally or otherwise,
your digital certificate, ID, and/or Password to any unauthorized person.
You must immediately notify us in writing if you believe that your digital
certificate and/or encryption key, Password, or ID has been compromised or
if you suspect unauthorized access to your account by means of the
Services or otherwise, or when a person to whom a digital certificate
and/or an encryption key, Password, or ID has been assigned leaves or is
no longer permitted to access the Services. |
|
2.3. |
We
will not be responsible for any breach of security, or for any unauthorized
trading or theft by any third party, caused by your failure (be it
intentional, unintentional, or negligent) to maintain the confidentiality
of your ID and/or Password and/or the security of your digital certificate
and/or encryption key. |
|
3.1. |
Proper
instructions under this Schedule shall be provided as designated in the
Related Agreements (Instructions). |
|
3.2. |
The
following additional provisions apply to Instructions provided via the
Services: |
|
a. |
Instructions
sent by electronic mail will not be accepted or acted upon. |
|
b. |
You
authorize us to act upon Instructions received through the Services
utilizing your digital certificate, ID, and/or Password as though they
were duly authorized written instructions, without any duty of
verification or inquiry on our part, and agree to hold us harmless for any
losses you experience as a result. |
|
c. |
From
time to time, the temporary unavailability of third party
telecommunications or computer systems required by the Services may result
in a delay in processing Instructions. In such an event, we shall not be
liable to you or any third party for any liabilities, losses, claims,
costs, damages, penalties, fines, obligations, or expenses of any kind
(including without limitation, reasonable attorneys’, accountants’,
consultants’, or experts’ fees and disbursements) that you
experience due to such a delay. |
22
|
We
may make periodic statements, disclosures, notices, and other documents available to you
electronically, and, subject to any delivery and receipt verification procedures required
by law, you agree to receive such documents electronically and to check the statements
for accuracy. If you believe any such statement contains incorrect information, you must
follow the procedures set forth in the Related Agreement(s). |
|
You
understand and agree that you will be responsible for the introduction (by you, your
employees, agents, or representatives) into the Services, whether intentional or
unintentional, of (i) any virus or other code, program, or sub-program that damages or
interferes with the operation of the computer system containing the code, program or
sub-program, or halts, disables, or interferes with the operation of the Services
themselves; or (ii) any device, method, or token whose knowing or intended purpose is to
permit any person to circumvent the normal security of the Services or the system
containing the software code for the Services (Malicious Code). You agree to take
all necessary actions and precautions to prevent the introduction and proliferation of
any Malicious Code into those systems that interact with the Services. |
|
For
avoidance of doubt, you hereby agree that the provisions in the Related Agreement(s)
related to your indemnification of us and any limitations on our liability and
responsibilities to you shall be applicable to this Agreement, and are hereby expressly
incorporated herein. You agree that the Services are comprised of telecommunications and
computer systems, and that it is possible that Instructions, information, transactions,
or account reports might be added to, changed, or omitted by electronic or programming
malfunction, unauthorized access, or other failure of the systems which comprise the
Services, despite the security features that have been designed into the Services. You
agree that we will not be liable for any action taken or not taken in complying with the
terms of this Schedule, except for our willful misconduct or gross negligence. The
provisions of this paragraph shall survive the termination of this Schedule and the
Related Agreements. |
|
You
may be charged for services hereunder as set forth in a fee schedule from time to time
agreed by us. |
|
8.1. |
This
Schedule is effective as of the date you sign it or first use the Services,
whichever is first, and continues in effect until such time as either you
or we terminate the Schedule in accordance with this Section 8 and/or
until your off-line use of the Services is terminated. |
|
8.2. |
We
may terminate your access to the Services at any time, for any reason, with
five (5) business days prior notice; provided that we may terminate your
access to the Services with no prior notice (i) if your account with us is
closed, (ii) if you fail to comply with any of the terms of this
Agreement, (iii) if we believe that your continued access to the Services
poses a security risk, or (iv) if we believe that you are violating or
have violated applicable laws, and we will not be liable for any loss you
may experience as a result of such termination. You may terminate your
access to the Services at any time by giving us ten (10) business days
notice. Upon termination, we will cancel all your Passwords and IDs and
any in-process or pending Instructions will be carried out or cancelled,
at our sole discretion. |
|
9.1. |
Notices. All
notices, requests, and demands (other than routine operational
communications, such as Instructions) shall be in such form and effect as
provided in the Related Agreement(s). |
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9.2. |
Inconsistent
Provisions. Each Service may be governed by separate terms and conditions
in addition to this Schedule and the Related Agreement(s). Except where
specifically provided to the contrary in this Schedule, in the event that such separate
terms and conditions conflict with this Schedule and the Related Agreement(s), the
provisions of this Schedule shall prevail to the extent this Schedule applies to the
transaction in question. |
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9.3. |
Binding
Effect; Assignment; Severability. This Schedule shall be binding on
you, your employees, officers and agents. We may assign or delegate our
rights and duties under this Schedule at any time without notice to you.
Your rights under this Schedule may not be assigned without our prior
written consent. In the event that any provision of this Schedule
conflicts with the law under which this Schedule is to be construed or if
any such provision is held invalid or unenforceable by a court with
jurisdiction over you and us, such provision shall be deemed to be
restated to effectuate as nearly as possible the purposes of the Schedule
in accordance with applicable law. The remaining provisions of this
Schedule and the application of the challenged provision to persons or
circumstances other than those as to which it is invalid or unenforceable
shall not be affected thereby, and each such provision shall be valid and
enforceable to the full extent permitted by law. |
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9.4. |
Choice
of Law; Jury Trial. This Schedule shall be governed by and construed,
and the legal relations between the parties shall be determined, in
accordance with the laws of the State of New York, without giving effect
to the principles of conflicts of laws. Each party agrees to waive its
right to trial by jury in any action or proceeding based upon or related
to this Agreement. The parties agree that all actions and proceedings
based upon or relating to this Schedule shall be litigated exclusively in
the federal and state courts located within New York City, New York. |
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The undersigned acknowledges that
(I/we) have received a copy of this document.
[Fund] (“you”)
By: |
_____________________________________ |
Title: |
_____________________________________ |
Date: |
_____________________________________ |
25
17f-5 DELEGATION
SCHEDULE
By its execution of this Delegation
Schedule dated as of _____________, 2009, BBH MASTER TRUST, a management investment
company registered with the Securities and Exchange Commission (the Commission)
under the Investment Company Act of 1940, as amended (the 1940 Act), acting through
its Board of Directors/Trustees or its duly appointed representative (the Fund),
hereby appoints XXXXX BROTHERS XXXXXXXX & CO., a New York limited partnership
with an office in Boston, Massachusetts (the Delegate) as its delegate to perform
certain functions with respect to the custody of Fund’s Assets outside the United
States.
1. Maintenance
of Fund’s Assets Abroad. The Fund, acting through its Board or its
duly authorized representative, hereby instructs the Delegate pursuant to the
terms of the Custodian Agreement dated as of the date hereof executed by and
between the Fund and the Delegate (the Custodian Agreement) to place and
maintain the Fund’s Assets in countries outside the United States in
accordance with Instructions received from the Fund’s Investment Advisor.
Such instruction shall constitute an Instruction under the terms of the
Custodian Agreement. The Fund acknowledges that (a) the Delegate shall perform
services hereunder only with respect to the countries where it accepts
delegation as Foreign Custody Manager as indicated on the Delegate’s
Global Custody Network Listing; (b) depending on conditions in the particular
country, advance notice may be required before the Delegate shall be able to
perform its duties hereunder in or with respect to such country (such advance
notice to be reasonable in light of the specific facts and circumstances
attendant to performance of duties in such country); and (c) nothing in this
Delegation Schedule shall require the Delegate to provide delegated or
custodial services in any country, and there may from time to time be countries
as to which the Delegate determines it will not provide delegation services.
2. Delegation.
Pursuant to the provisions of Rule 17f-5 under the 1940 Act as amended, the
Board hereby delegates to the Delegate, and the Delegate hereby accepts such
delegation and agrees to perform only those duties set forth in this Delegation
Schedule concerning the safekeeping of the Fund’s Assets in each of the
countries as to which it acts as the Board’s delegate. The Delegate is
hereby authorized to take such actions on behalf of or in the name of the Fund
as are reasonably required to discharge its duties under this Delegation
Schedule, including, without limitation, to cause the Fund’s Assets to be
placed with a particular Eligible Foreign Custodian in accordance herewith. The
Fund confirms to the Delegate that the Fund or its Investment Adviser has
considered the Sovereign Risk and prevailing Country Risk as part of its
continuing investment decision process, including such factors as may be
reasonably related to the systemic risk of maintaining the Fund’s Assets
in a particular country, including, but not limited to, financial
infrastructure, prevailing custody and settlement systems and practices
(including the use of any Securities Depository in the context of information
provided by the Custodian in the performance of its duties as required under
Rule 17f-7 and the terms of the Custodian Agreement governing such duties), and
the laws relating to the safekeeping and recovery of the Fund’s Assets
held in custody pursuant to the terms of the Custodian Agreement.
3. Selection
of Eligible Foreign Custodian and Contract Administration. The Delegate
shall perform the following duties with respect to the selection of Eligible
Foreign Custodians and administration of certain contracts governing the Fund’s
foreign custodial arrangements:
|
(a) Selection
of Eligible Foreign Custodian. The Delegate shall place and maintain the
Fund’s Assets with an Eligible Foreign Custodian, provided that the
Delegate shall have determined that the Fund’s Assets will be subject to
reasonable care based on the standards applicable to custodians in the relevant
market after considering factors relevant to the safekeeping of such assets
including without limitation: |
|
(i) The
Eligible Foreign Custodian’s practices, procedures, and internal controls,
including, but not limited to, the physical protections available for
certificated securities (if applicable), the controls and procedures for
dealing with any Securities Depository, the method of keeping custodial
records, and the security and data protection practices; |
|
(ii) Whether
the Eligible Foreign Custodian has the requisite financial strength to provide
reasonable care for the Fund’s Assets; |
|
(iii) The
Eligible Foreign Custodian’s general reputation and standing; and |
|
(iv) Whether
the Fund will have jurisdiction over and be able to enforce judgments against
the Eligible Foreign Custodian, such as by virtue of the existence of any
offices of such Eligible Foreign Custodian in the United States or such
Eligible Foreign Custodian’s appointment of an agent for service of
process in the United States or consent to jurisdiction in the United States. |
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|
The
Delegate shall be required to make the foregoing determination to the best of its
knowledge and belief based only on information reasonably available to it. |
|
(b) Contract
Administration. The Delegate shall cause that the foreign custody
arrangements with an Eligible Foreign Custodian shall be governed by a written
contract that the Delegate has determined will provide reasonable care for Fund
assets based on the standards applicable to custodians in the relevant market.
Each such contract shall, except as set forth in the last paragraph of this
subsection (b), include provisions that provide: |
|
(i) For
indemnification or insurance arrangements (or any combination of the foregoing)
such that the Fund will be adequately protected against the risk of loss of
assets held in accordance with such contract; |
|
(ii) That
the Fund’s Assets will not be subject to any right, charge, security
interest, lien or claim of any kind in favor of the Eligible Foreign Custodian
or its creditors except a claim of payment for their safe custody or
administration or, in the case of cash deposits, liens or rights in favor of
creditors of such Custodian arising under bankruptcy, insolvency or similar
laws; |
|
(iii) That
beneficial ownership of the Fund’s Assets will be freely transferable
without the payment of money or value other than for safe custody or
administration; |
|
(iv) That
adequate records will be maintained identifying the Fund’s Assets as
belonging to the Fund or as being held by a third party for the benefit of the
Fund; |
|
(v) That
the Fund’s independent public accountants will be given access to those
records described in (iv) above or confirmation of the contents of such
records; and |
|
(vi) That
the Delegate will receive sufficient and timely periodic reports with respect
to the safekeeping of the Fund’s Assets, including, but not limited to,
notification of any transfer to or from the Fund’s account or a third
party account containing the Fund’s Assets. |
|
Such
contract may contain, in lieu of any or all of the provisions specified in this Section
3(b), such other provisions that the Delegate determines will provide, in their entirety,
the same or a greater level of care and protection for the Fund’s Assets as the
specified provisions, in their entirety. |
|
(c) Limitation
to Delegated Selection. Notwithstanding anything in this Delegation
Schedule to the contrary, the duties under this Section 3 shall apply only to
Eligible Foreign Custodians selected by the Delegate and shall not apply to
Securities Depositories or to any Eligible Foreign Custodian that the Delegate
is directed to use pursuant to Section 7 of this Delegation Schedule. |
4. Monitoring.
The Delegate shall establish a system to monitor at reasonable intervals (but
at least annually) the appropriateness of maintaining the Fund’s Assets
with each Eligible Foreign Custodian that has been selected by the Delegate
pursuant to Section 3 of this Delegation Schedule. The Delegate shall monitor
the continuing appropriateness of placement of the Fund’s Assets in
accordance with the criteria established under Section 3(a) of this Delegation
Schedule. The Delegate shall monitor the continuing appropriateness of the
contract governing the Fund’s arrangements in accordance with the criteria
established under Section 3(b) of this Delegation Schedule.
5. Reporting.
At least annually and more frequently as mutually agreed between the parties,
the Delegate shall provide to the Board written reports specifying placement of
the Fund’s Assets with each Eligible Foreign Custodian selected by the
Delegate pursuant to Section 3 of this Delegation Schedule and shall promptly
report on any material changes to such foreign custody arrangements. Delegate
will prepare such a report with respect to any Eligible Foreign Custodian that
the Delegate has been instructed to use pursuant to Section 7 of this
Delegation Schedule only to the extent specifically agreed with respect to the
particular situation.
6. Withdrawal
of Fund’s Assets. If the Delegate determines that an arrangement with
a specific Eligible Foreign Custodian selected by the Delegate under Section 3
of this Delegation Schedule no longer meets the requirements of said Section,
Delegate shall withdraw the Fund’s Assets from the non-complying
arrangement as soon as reasonably practicable; provided, however, that if in
the reasonable judgment of the Delegate, such withdrawal would require
liquidation of any of the Fund’s Assets or would materially impair the
liquidity, value or other investment characteristics of the Fund’s Assets,
it shall be the duty of the Delegate to provide information regarding the
particular circumstances and to act only in accordance with Instructions of the
Fund or its Investment Advisor with respect to such liquidation or other
withdrawal.
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7. Direction
as to Eligible Foreign Custodian. Notwithstanding this Delegation Schedule,
the Fund, acting through its Board, its Investment Advisor or its other
Authorized Representative, may direct the Delegate to place and maintain the
Fund’s Assets with a particular Eligible Foreign Custodian, including
without limitation with respect to investment in countries as to which the
Custodian will not provide delegation services. In such event, the Delegate
shall be entitled to rely on any such instruction as an Instruction under the
terms of the Custodian Agreement and shall have no duties under this Delegation
Schedule with respect to such arrangement save those that it may undertake
specifically in writing with respect to each particular instance.
8. Standard
of Care. In carrying out its duties under this Delegation Schedule, the
Delegate agrees to exercise reasonable care, prudence and diligence such as a
person having responsibility for safekeeping the Fund’s Assets would
exercise.
9. Representations.
The Delegate hereby represents and warrants that it is a U.S. Bank and that
this Delegation Schedule has been duly authorized, executed and delivered by
the Delegate and is a legal, valid and binding agreement of the Delegate.
The Fund hereby represents and
warrants that its Board of Directors has determined that it is reasonable to rely on the
Delegate to perform the delegated responsibilities provided for herein and that this
Delegation Schedule has been duly authorized, executed and delivered by the Fund and is a
legal, valid and binding agreement of the Fund.
10. Effectiveness;
termination. This Delegation Schedule shall be effective as of the date on
which this Delegation Schedule shall have been accepted by the Delegate, as
indicated by the date set forth below the Delegate’s signature. This
Delegation Schedule may be terminated at any time, without penalty, by written
notice from the terminating party to the non-terminating party. Such
termination shall be effective on the 30th calendar day following the date on
which the non-terminating party shall receive the foregoing notice. The
foregoing to the contrary notwithstanding, this Delegation Schedule shall be
deemed to have been terminated concurrently with the termination of the
Custodian Agreement.
11. Notices.
Notices and other communications under this Delegation Schedule are to be made
in accordance with the arrangements designated for such purpose under the
Custodian Agreement unless otherwise indicated in a writing referencing this
Delegation Schedule and executed by both parties.
12. Definitions.
Capitalized terms not otherwise defined in this Delegation Schedule have the
following meanings:
|
a. Country
Risk – shall have the meaning set forth in Section [ ] of the Custodian
Agreement. |
|
b. Eligible
Foreign Custodian — shall have the meaning set forth in Rule
17f-5(a)(1) of the 1940 Act and shall also include a U.S. Bank. |
|
c. Fund’s
Assets — shall mean any of the Fund’s investments (including
foreign currencies) for which the primary market is outside the United States,
and such cash and cash equivalents as are reasonably necessary to effect the
Fund’s transactions in such investments. |
|
d. Instructions — shall
have the meaning set forth in the Custodian Agreement. |
|
e. Securities
Depository — shall have the meaning set forth in Rule 17f-7 of the
1940 Act. |
|
f. Sovereign
Risk — shall have the meaning set forth in Section [6.3] of the
Custodian Agreement. |
|
g. U.S.
Bank — shall mean a bank which qualifies to serve as a custodian of assets of
investment companies under Section 17(f) of the 1940 Act. |
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13. Governing
Law and Jurisdiction. This Delegation Schedule shall be construed in
accordance with the laws of the State of New York. The parties hereby submit to
the exclusive jurisdiction of the Federal courts sitting in the State of New
York or the Commonwealth of Massachusetts or of the state courts of either such
State or such Commonwealth.
14. Fees.
Delegate shall perform its functions under this Delegation Schedule for the
compensation determined under the Custodian Agreement.
15. Integration.
This Delegation Schedule sets forth all of the Delegate’s duties with
respect to the selection and monitoring of Eligible Foreign Custodians, the
administration of contracts with Eligible Foreign Custodians, the withdrawal of
assets from Eligible Foreign Custodians and the issuance of reports in
connection with such duties. The terms of the Custodian Agreement shall apply
generally as to matters not expressly covered in this Delegation Schedule,
including dealings with the Eligible Foreign Custodians in the course of
discharge of the Delegate’s obligations under the Custodian Agreement.
IN WITNESS WHEREOF, each of
the parties hereto has caused this Agreement to be duly executed as of the date first
above written.
The undersigned acknowledges that
(I/we) have received a copy of this document.
XXXXX BROTHERS XXXXXXXX & CO. |
[FUND] |
By: __________________________________ |
By: ________________________________ |
Name: |
Name: |
Title: |
Title: |
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