AGREEMENT BETWEEN
XXXXX BROTHERS XXXXXXXX & CO.
AND
BEA INCOME FUND, INC.
BEA STRATEGIC GLOBAL INCOME FUND, INC.
CUSTODIAN AGREEMENT
AGREEMENT made this 29th day of January 1999,
between BEA INCOME FUND, INC. and BEA STRATEGIC GLOBAL INCOME FUND, INC. and
Xxxxx Brothers Xxxxxxxx & Co. (the "Custodian");
WITNESSETH: That in consideration of the mutual covenants and agreements herein
contained, the parties hereto agree as follows:
1. Employment of Custodian: The Fund hereby employs and appoints the Custodian
as a custodian for the term and subject to the provisions of this Agreement. The
Custodian shall not be under any duty or obligation to require the Fund to
deliver to it any securities or funds owned by the Fund and shall have no
responsibility or liability for or on account of securities or funds not so
delivered. The Fund will deposit with the Custodian copies of the Declaration of
Trust or Certificate of Incorporation and By-Laws (or comparable documents) of
the Fund and all amendments thereto, and copies of such votes and other
proceedings of the Fund as may be necessary for or convenient to the Custodian
in the performance of its duties.
2. Powers and Duties of the Custodian with respect to Property of the Fund
held by the Custodian: Except for securities and funds held by any Subcustodians
appointed pursuant to the provisions of Section 3 hereof or held by any Foreign
Depositories (as said term is defined in Section 3) utilized by a Subcustodian,
the Custodian shall have and perform the following powers and duties:
2.l Safekeeping - To keep safely the securities and other assets of the Fund
that have been delivered to the Custodian and, on behalf of the Fund, from time
to time to receive delivery of securities for safekeeping. The Custodian's
responsibility for safekeeping equity securities of Russian issuers ("Russian
Equities") hereunder shall be limited to the safekeeping of relevant share
extracts from the share registration books maintained by the entities providing
share registration services to issuers of Russian Equities (each a "Registrar")
indicating an investor's ownership of such securities (each a "Share Extract").
2.2 Manner of Holding Securities - To hold securities of the Fund (1) by
physical possession of the share certificates or
other instruments representing such securities in registered or bearer form, or
(2) in book-entry form by a Securities System (as said term is defined in
Section 2.22) or a Foreign Depository.
2.3 Registration - To hold registered securities of the Fund, with or without
any indication of fiduciary capacity, provided that securities are held in an
account of the Custodian containing only assets of the Fund or only assets held
as fiduciary or custodian for customers. With respect to Russian Equities, the
Custodian shall instruct a Subcustodian to endeavor to assure that registration
thereof shall be reflected on the books of the issuer's Registrar, subject to
the following conditions, but shall in no event be liable for losses or costs
incurred as a result of delays or failures in the registration process,
including without limitation the inability to obtain or enforce relevant Share
Extracts. Such registration may be in the name of a nominee of a Subcustodian.
In the event registration is in the name of the Company, such Company hereby
acknowledges that only the Custodian or Subcustodian may give instructions to
the Registrar to transfer or engage in other transactions involving the Russian
Equities so registered.
A Subcustodian may from time to time enter into contracts with Registrars
with respect to the registration of Russian Equities ("Registrar Contracts").
Such Registrar Contracts may provide for (i) regular share confirmations by the
Subcustodian, (ii) reregistrations within set timeframes, (iii) use of a
Subcustodian's nominee name, (iv) direct access by auditors of the Subcustodian
or its clients to share registers, and (v) specification of the Registrar's
responsibilities and liabilities. It is hereby acknowledged and agreed that the
Custodian does not represent or warrant that such Registrar Contracts are
enforceable.
If the Company instructs the Custodian to settle a purchase of a Russian
Equity, the Custodian will instruct a Subcustodian to endeavor on a best efforts
basis to reregister the Russian Equity and obtain a Share Extract in a timely
manner.
After completion of reregistration of a Russian Equity in respect of which
a Subcustodian has entered into a Registrar Contract, the Custodian shall
instruct the Subcustodian to monitor such registrar on a best efforts basis and
to notify the Custodian upon the Subcustodian's obtaining knowledge of the
occurrence of any of the following events ("Registrar Events"): (i) a Registrar
has eliminated a shareholder from the register or has altered registration
records; (ii) a Registrar has refused to register securities in the name of a
particular purchaser and the purchaser or seller has alleged that the
registrar's refusal to so register was unlawful; (iii) a Registrar holds for its
own account shares of an issuer for which it serves as registrar; (iv) if a
Registrar Contract is in effect with a Registrar, the
Registrar notifies the Subcustodian that it will no longer be able materially to
comply with the terms of the Registrar Contract; or (v) if a Registrar Contract
is in effect with a Registrar, the Registrar has materially breached such
Contract. The Custodian shall inform the Company of the occurrence of a
Registrar Event provided the Custodian has in fact received actual notice
thereof from the Subcustodian.
It shall be the sole responsibility of the Company to contact the Custodian
prior to executing any transaction in a Russian Equity to determine whether a
Registrar Contract exists in respect of such issuer.
If the Company instructs the Custodian by Proper Instruction to settle a
purchase of a Russian Equity in respect of which the Subcustodian has not
entered into a Registrar Contract, then the Custodian shall instruct the
Subcustodian to endeavor to settle such transaction in accordance with the
Proper Instruction and with the provisions of Section 2.4 of this Agreement,
notwithstanding the absence of any such Registrar Contract and without the
Custodian being required to notify the Company that no such Registrar Contract
is then in effect, and it being understood that neither the Custodian nor the
Subcustodian shall be required to follow the procedure set forth in the second
preceding paragraph.
2.4 Purchases - Upon receipt of proper instructions, as defined in Section
2.27, insofar as funds are available for the purpose, to pay for and receive
securities purchased for the account of the Fund, payment being made only upon
receipt of the securities (1) by the Custodian, or (2) by a clearing corporation
of a national securities exchange of which the Custodian is a member, or (3) by
a Securities System or a Foreign Depository. However, (i) in the case of
repurchase agreements entered into by the Fund, the Custodian (as well as an
Agent) may release funds to a Securities System, a Foreign Depository or a
Subcustodian prior to the receipt of advice from the Securities System, Foreign
Depository or Subcustodian that the securities underlying such repurchase
agreement have been transferred by book entry into the Account (as defined in
Section 2.22) of the Custodian (or such Agent) maintained with such Securities
System or to the Foreign Depository or Subcustodian, so long as such payment
instructions to the Securities System, Foreign Depository or Subcustodian
include a requirement that delivery is only against payment for securities, (ii)
in the case of foreign exchange contracts, options, time deposits, call account
deposits, currency deposits, and other deposits, contracts or options pursuant
to Sections 2.10, 2.12, 2.13, 2.14 and 2.15, the Custodian may make payment
therefor without receiving an instrument evidencing said deposit, contract or
option so long as such payment instructions detail specific securities to be
acquired, and (iii) in the case of securities as to which payment for the
security and receipt of the instrument evidencing the security are under
generally accepted trade practice for institutional investors or the terms
of the instrument representing the security expected to take place in different
locations or through separate parties, such as commercial paper which is indexed
to foreign currency exchange rates, derivatives and similar securities, the
Custodian may make payment for such securities prior to receipt thereof in
accordance with such generally accepted trade practice or the terms of the
instrument representing such security. Without limiting the generality of the
foregoing, the following provisions shall apply with respect to settlement of
purchases of securities in Russia. Unless otherwise instructed by Proper
Instructions acceptable to the Custodian, the Custodian shall only authorize a
Subcustodian to make payment for purchases of Russian Equities upon receipt of
the relevant Share Extract in respect of the Company's purchases. With respect
to securities other than Russian Equities, settlement of purchases shall be made
in accordance with securities processing or settlement practices, which the
Custodian in its discretion determines to be a market practice. The Custodian
shall only be responsible for securities purchased upon actual receipt of such
securities at the premises of its Subcustodian, provided that the Custodian's
responsibility for securities represented by Share Extracts shall be limited to
the safekeeping of the relevant Share Extract upon actual receipt of such Share
Extract at the premises of the Subcustodian.
2.5 Exchanges - Upon receipt of proper instructions, to exchange in accordance
with the registration procedures described in Section 2.3 of this Agreement,
securities held by it for the account of the Fund for other securities in
connection with any reorganization, recapitalization, split-up of shares, change
of par value, conversion or other event relating to the securities or the issuer
of such securities and to deposit any such securities in accordance with the
terms of any reorganization or protective plan. Without proper instructions, the
Custodian may surrender securities in temporary form for definitive securities,
may surrender securities for transfer into an account as permitted in Section
2.3, and may surrender securities for a different number of certificates or
instruments representing the same number of shares or same principal amount of
indebtedness, provided the securities to be issued are to be delivered to the
Custodian.
2.6 Sales of Securities - Upon receipt of proper instructions, to make delivery
of securities which have been sold for the account of the Fund, but only against
payment therefor (1) in cash, by a certified check, bank cashier's check, bank
credit, or bank wire transfer, or (2) by credit to the account of the Custodian
with a clearing corporation of a national securities exchange of which the
Custodian is a member, or (3) by credit to the account of the Custodian or an
Agent of the Custodian with a Securities System or a Foreign Depository;
provided, however, that (i) in the case of delivery of physical certificates or
instruments representing securities, the Custodian may make delivery to the
broker buying the securities, against receipt therefor, for examination in
accordance with "street delivery" custom, provided that the payment therefor is
to be made to the Custodian (which payment may be made by a broker's check) or
that such securities are to be returned to the Custodian, and (ii) in the case
of securities referred to in clause (iii) of the last sentence of Section 2.4,
the Custodian may make settlement, including with respect to the form of
payment, in accordance with generally accepted trade practice for institutional
investors relating to such securities or the terms of the instrument
representing said security. Without limiting the generality of the foregoing,
the following provisions shall apply with respect to settlement of sales of
securities in Russia. Unless otherwise expressly instructed by Proper
Instructions acceptable to the Custodian, settlement of sales of securities
shall be made in accordance with securities processing or settlement practices
which the Custodian in its discretion determines to be a market practice. The
Company hereby expressly acknowledges that such market practice might require
delivery of securities prior to receipt of payment and that the Company bears
the risk of payment in instances where delivery of securities is made prior to
receipt of payment therefor in accordance with Proper Instructions received by
the Custodian or pursuant to the Custodian's determination in its discretion
that such delivery is in accordance with market practice. The Custodian shall
not be responsible for any securities delivered from the premises of the
Subcustodian from the time they leave such premises.
2.7 Depositary Receipts - Upon receipt of proper instructions, to instruct a
Subcustodian or an Agent to surrender securities to the depositary used by an
issuer of American Depositary Receipts or International Depositary Receipts
(hereinafter collectively referred to as "ADRs") for such securities against a
written receipt therefor adequately describing such securities and written
evidence satisfactory to the Subcustodian or Agent that the depositary has
acknowledged receipt of instructions to issue with respect to such securities
ADRs in the name of the Custodian, or a nominee of the Custodian, for delivery
to the Custodian in Boston, Massachusetts, or at such other place as the
Custodian may from time to time designate.
Upon receipt of proper instructions, to surrender ADRs to the issuer thereof
against a written receipt therefor adequately describing the ADRs surrendered
and written evidence satisfactory to the Custodian that the issuer of the ADRs
has acknowledged receipt of instructions to cause its depositary to deliver the
securities underlying such ADRs to a Subcustodian or an Agent.
2.8 Exercise of Rights; Tender Offers - Upon timely receipt of proper
instructions, to deliver to the issuer or trustee thereof, or to the agent of
either, warrants, puts, calls, rights or
similar securities for the purpose of being exercised or sold, provided that the
new securities and cash, if any, acquired by such action are to be delivered to
the Custodian, and, upon receipt of proper instructions, to deposit securities
upon invitations for tenders of securities, provided that the consideration is
to be paid or delivered or the tendered securities are to be returned to the
Custodian. With respect to Russian Equities, upon receipt of Proper Instruction
the Custodian shall take any action required by the terms of a rights offer,
tender offer, put, call, merger, consolidation, reorganization or other
corporate action affecting securities held on behalf of a Company. The Custodian
shall use reasonable efforts to act on such Proper Instructions but will not be
held liable for any losses or costs incurred as a result of such actions or as a
result of the Custodian's inability for reasons beyond its control to take the
actions requested by such Proper Instructions.
2.9 Stock Dividends, Rights, Etc. - To receive and collect all stock dividends,
rights and other items of like nature; and to deal with the same pursuant to
proper instructions relative thereto. With respect to Russian Equities, to
request a Subcustodian to endeavor to obtain a Share Extract with respect to all
Russian Equities issued by reason of a stock dividend, bonus issue or other
distribution resulting from a corporate action not requiring instructions from
the shareholder of the security, provided that the Custodian shall not be
responsible for its inability to obtain any such Share Extract or for the
failure of a Registrar or any agent thereof to record the Company's ownership on
the issuer's records.
2.10 Options - Upon receipt of proper instructions or upon receipt of
instructions given pursuant to any agreement relating to an option or as
otherwise provided in any such agreement to (i) receive and retain, to the
extent provided to the Custodian, confirmations or other documents evidencing
the purchase, sale or writing of an option of any type on or in respect of a
security, securities index or similar form of property by the Fund; (ii) deposit
and maintain in a segregated account, either physically or by book-entry in a
Securities System or Foreign Depository or with a broker, dealer or other
entity, securities, cash or other assets in connection with options transactions
entered into by the Fund; (iii) transfer securities, cash or other assets to a
Securities System, Foreign Depository, broker, dealer or other entity, as margin
(including variation margin) or other security for the Fund's obligations in
respect of any option; and (iv) pay, release and/or transfer such securities,
cash or other assets in accordance with a notice or other communication
evidencing the expiration, termination or exercise of or default under any such
option furnished by The Options Clearing Corporation, by the securities or
options exchange on which such option is traded or by such broker, dealer or
other entity as may be responsible for handling such options transaction or have
authority to give such notice or communication. The Custodian
shall not be responsible for the sufficiency of assets held in any segregated
account established in compliance with applicable margin maintenance
requirements or the performance of the other terms of any agreement relating to
an option. Notwithstanding the foregoing, options on futures contracts and
options to purchase and sell foreign currencies shall be governed by Sections
2.14 and 2.15.
2.11 Borrowings - Upon receipt of proper instructions, to deliver securities of
the Fund to lenders or their agents as collateral for borrowings effected by the
Fund, provided that such borrowed money is payable to or upon the Custodian's
order as Custodian for the Fund.
2.12 Demand Deposit Bank Accounts - To open and operate an account or accounts
in the name of the Fund, subject only to draft or order by the Custodian, and to
hold in such account or accounts as a deposit accepted on the Custodian's books
cash, including foreign currency, received for the account of the Fund other
than cash held as deposits with Banking Institutions in accordance with the
following paragraph. The responsibilities of the Custodian for cash, including
foreign currency, of the Fund accepted on the Custodian's books as a deposit
shall be that of a U. S. bank for a similar deposit.
If and when authorized by proper instructions, the Custodian may open and
operate an additional account(s) in such other banks or trust companies as
may be designated by the Fund in such instructions (any such bank or trust
company so designated by the Fund being referred to hereafter as a "Banking
Institution"), and may deposit cash, including foreign currency, of the Fund
in such account or accounts, provided that such account(s) (hereinafter
collectively referred to as "demand deposit bank accounts") shall be in the
name of the Custodian or a nominee of the Custodian for the account of the
Fund or for the account of the Custodian's customers generally and shall be
subject only to the Custodian's draft or order; provided that any such demand
deposit bank account shall contain only assets held by the Custodian as a
fiduciary or custodian for the Fund and/or other customers and that the
records of the Custodian shall indicate at all times the Fund and/or other
customers for which such funds are held in such account and the respective
interests therein. Such demand deposit accounts may be opened with Banking
Institutions in the United States and in other countries and may be
denominated in either U. S. Dollars or other currencies as the Fund may
determine. The records for each such account will be maintained by the
Custodian but the deposits in any such account shall not constitute a deposit
liability of the Custodian. All such deposits, including with Subcustodians,
shall be deemed to be portfolio securities of the Fund and accordingly the
responsibility of the Custodian therefor shall be the same as and no greater
than the Custodian's responsibility in respect of other portfolio securities
of the Fund. The authorization by the Fund to appoint a Subcustodian as such
shall also constitute a
proper instruction to open a demand deposit bank
account subject to the provisions of this paragraph with such Subcustodian.
2.13 Interest Bearing Call or Time Deposits - To place interest bearing fixed
term and call deposits with such banks and in such amounts as the Fund may
authorize pursuant to proper instructions. Such deposits may be placed with
the Custodian or with Subcustodians or other Banking Institutions as the Fund
may determine, in the name of the Custodian or a nominee of the Custodian for
the account of the Fund or the account of the Custodian's customers generally
and subject only to the Custodian's draft or order; provided that any such
deposit shall be held in an account containing only assets held by the
Custodian as a fiduciary or custodian for the Fund and/or other customers and
that the records of the Custodian shall indicate at all times the Fund and/or
other customers for which such funds are held in such account and the
respective interests therein. Deposits may be denominated in U. S. Dollars or
other currencies and need not be evidenced by the issuance or delivery of a
certificate to the Custodian, provided that the Custodian shall include in
its records with respect to the assets of the Fund appropriate notation as to
the amount and currency of each such deposit, the accepting Banking
Institution and other appropriate details, and shall retain such forms of
advice or receipt evidencing the deposit, if any, as may be forwarded to the
Custodian by the Banking Institution. Funds, other than those accepted on the
Custodian's books as a deposit, but including those placed with
Subcustodians, shall be deemed portfolio securities of the Fund and the
responsibilities of the Custodian therefor shall be the same as those for
demand deposit bank accounts placed with other banks, as described in the
second paragraph of Section 2.12 of this Agreement. The responsibility of the
Custodian for funds accepted on the Custodian's books as a deposit shall be
that of a U. S. bank for a similar deposit.
2.14 Futures Contracts. Upon receipt of proper instructions or upon receipt
of instructions given pursuant to any agreement relating to a futures
contract or an option thereon or as otherwise provided in any such agreement,
to (i) receive and retain, to the extent provided to the Custodian,
confirmations or other documents evidencing the purchase or sale of a futures
contract or an option on a futures contract by the Fund; (ii) deposit and
maintain in a segregated account, either physically or by book-entry in a
Securities System or Foreign Depository, for the benefit of any futures
commission merchant, or pay to such futures commission merchant, securities,
cash or other assets designated by the Fund as initial, maintenance or
variation "margin" deposits intended to secure the Fund's performance of its
obligations under any futures contract purchased or sold or any option on a
futures contract written, purchased or sold by the Fund, in accordance with
the provisions of any agreement relating thereto or the rules of the
Commodity Futures Trading Commission and/or any contract market or any
similar organization on which such contract or option is traded; and (iii)
pay, release and/or transfer securities, cash or other assets into or out of
such margin accounts only in accordance with any such agreement or rules. The
Custodian shall not be responsible for the sufficiency of assets held in any
segregated account established in compliance with applicable margin maintenance
requirements or the performance of the other terms of any agreement relating to
a futures contract or an option thereon.
2.15 Foreign Exchange Transactions - Pursuant to proper instructions, to settle
foreign exchange contracts or options to purchase and sell foreign currencies
for spot and future delivery on behalf and for the account of the Fund with such
currency brokers or Banking Institutions, including Subcustodians, as the Fund
may direct pursuant to proper instructions. The Custodian shall be responsible
for the transmission of cash and instructions to and from the currency broker or
Banking Institution with which the contract or option is made, the safekeeping
of all certificates and other documents and agreements evidencing or relating to
such foreign exchange transactions as the Custodian may receive and the
maintenance of proper records as set forth in Section 5.1. In connection with
such transactions, the Custodian is authorized to make free outgoing payments of
cash in the form of U. S. 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. The
Fund accepts full responsibility for its use of third-party foreign exchange
dealers and for execution of said 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.
Alternatively, such transactions may be undertaken by the Custodian as
principal, if instructed by the Fund.
Foreign exchange contracts and options, other than those executed with the
Custodian as principal, but including those executed with Subcustodians, shall
be deemed to be portfolio securities of the Fund and the responsibility of the
Custodian therefor shall be the same as and no greater than the Custodian's
responsibility in respect of other portfolio securities of the Fund. The
responsibility of the Custodian with respect to foreign exchange contracts and
options executed with the Custodian as principal shall be that of a U. S. bank
with respect to a similar contract or option.
2.16 Stock Loans - Upon receipt of proper instructions, to deliver securities of
the Fund, in connection with loans of
securities by the Fund, to the borrower thereof prior to receipt of the
collateral, if any, for such borrowing, provided that for stock loans secured by
cash collateral the Custodian's instructions to any Securities System holding
such securities require that the Securities System may deliver the securities to
the borrower thereof only upon receipt of the collateral for such borrowing.
2.17 Collections - (i) To collect and receive all income, payments of
principal and other payments with respect to the securities held hereunder,
and in connection therewith to deliver the certificates or other instruments
representing the securities to the issuer thereof or its agent when
securities are called, redeemed, retired or otherwise become payable;
provided, that the payment is to be made in such form and manner and at such
time, which may be after delivery by the Custodian of the instrument
representing the security, as is in accordance with the terms of the
instrument representing the security, or such proper instructions as the
Custodian may receive, or governmental regulations, the rules of Securities
Systems, Foreign Depositories or other U. S. or foreign securities
depositories and clearing agencies or, with respect to securities referred to
in clause (iii) of the last sentence of Section 2.4, in accordance with
generally accepted trade practice; (ii) to execute ownership and other
certificates and affidavits for all federal and state tax purposes in
connection with receipt of income, principal or other payments with respect
to securities of the Fund or in connection with transfer of securities; and
(iii) pursuant to proper instructions to take such other actions with respect
to collection or receipt of funds or transfer of securities which involve an
investment decision.
2.18 Dividends, Distributions and Redemptions - Upon receipt of proper
instructions from the Fund, or upon receipt of instructions from the Fund's
shareholder servicing agent or agent with comparable duties (the "Shareholder
Servicing Agent") (given by such person or persons and in such manner on behalf
of the Shareholder Servicing Agent as the Fund shall have authorized), the
Custodian shall release funds or securities to the Shareholder Servicing Agent
or otherwise apply funds or securities, insofar as available, for the payment of
dividends or other distributions to Fund shareholders. Upon receipt of proper
instructions from the Fund, or upon receipt of instructions from the Shareholder
Servicing Agent (given by such person or persons and in such manner on behalf of
the Shareholder Servicing Agent as the Fund shall have authorized), the
Custodian shall release funds or securities, insofar as available, to the
Shareholder Servicing Agent or as such Agent shall otherwise instruct for
payment to Fund shareholders who have delivered to such Agent a request for
repurchase or redemption of their shares of the Fund.
2.19 Proxies, Notices, Etc. - Promptly to deliver or mail to the Fund all forms
of proxies and all notices of meetings and any other notices or announcements
affecting or relating to
securities owned by the Fund that are received by the Custodian, and upon
receipt of proper instructions, to execute and deliver or cause its nominee to
execute and deliver such proxies or other authorizations as may be required.
Neither the Custodian nor its nominee shall vote upon any of such securities or
execute any proxy to vote thereon or give any consent or take any other action
with respect thereto (except as otherwise herein provided) unless ordered to do
so by proper instructions.
2.20 Nondiscretionary Details - Without the necessity of express authorization
from the Fund, (1) to attend to all nondiscretionary details in connection with
the sale, exchange, substitution, purchase, transfer or other dealings with
securities, funds or other property of the Fund held by the Custodian except as
otherwise directed from time to time by the Directors or Trustees of the Fund,
and (2) to make payments to itself or others for minor expenses of handling
securities or other similar items relating to the Custodian's duties under this
Agreement, provided that all such payments shall be accounted for to the Fund.
2.21 Bills - Upon receipt of proper instructions, to pay or cause to be paid,
insofar as funds are available for the purpose, bills, statements and other
obligations of the Fund (including but not limited to interest charges, taxes,
management fees, compensation to Fund officers and employees, and other
operating expenses of the Fund).
2.22 Deposit of Fund Assets in Securities Systems - The Custodian may deposit
and/or maintain securities owned by the Fund in (i) The Depository Trust
Company, (ii) the Participants Trust Company, (iii) any book-entry system as
provided in Subpart O of Treasury Circular Xx. 000, 00 XXX 000, Xxxxxxx X of 31
CFR Part 350, or the book-entry regulations of federal agencies substantially in
the form of Subpart O, or (iv) any other domestic clearing agency registered
with the Securities and Exchange Commission under Section 17A of the Securities
Exchange Act of 1934 which acts as a securities depository and whose use the
Fund has previously approved in writing (each of the foregoing being referred to
in this Agreement as a "Securities System"). Utilization of a Securities System
shall be in accordance with applicable Federal Reserve Board and Securities and
Exchange Commission rules and regulations, if any, and subject to the following
provisions:
1) The Custodian may deposit and/or maintain Fund securities, either directly
or through one or more Agents appointed by the Custodian (provided that any such
agent shall be qualified to act as a custodian of the Fund pursuant to the
Investment Company Act of 1940 and the rules and regulations thereunder), in a
Securities System provided that such securities are represented in an account
("Account") of the Custodian or such Agent in the Securities System which shall
not include any
assets of the Custodian or Agent other than assets held as a fiduciary,
custodian, or otherwise for customers;
2) The records of the Custodian with respect to securities of the Fund which
are maintained in a Securities System shall identify by book-entry those
securities belonging to the Fund;
3) The Custodian shall pay for securities purchased for the account of the
Fund upon (i) receipt of advice from the Securities System that such securities
have been transferred to the Account, and (ii) the making of an entry on the
records of the Custodian to reflect such payment and transfer for the account of
the Fund. The Custodian shall transfer securities sold for the account of the
Fund upon (i) receipt of advice from the Securities System that payment for such
securities has been transferred to the Account, and (ii) the making of an entry
on the records of the Custodian to reflect such transfer and payment for the
account of the Fund. Copies of all advices from the Securities System of
transfers of securities for the account of the Fund shall identify the Fund, be
maintained for the Fund by the Custodian or an Agent as referred to above, and
be provided to the Fund at its request. The Custodian shall furnish the Fund
confirmation of each transfer to or from the account of the Fund in the form of
a written advice or notice and shall furnish to the Fund copies of daily
transaction sheets reflecting each day's transactions in the Securities System
for the account of the Fund on the next business day;
4) The Custodian shall provide the Fund with any report obtained by the
Custodian or any Agent as referred to above on the Securities System's
accounting system, internal accounting control and procedures for safeguarding
securities deposited in the Securities System; and the Custodian and such Agents
shall send to the Fund such reports on their own systems of internal accounting
control as the Fund may reasonably request from time to time.
5) At the written request of the Fund, the Custodian will terminate the use of
any such Securities System on behalf of the Fund as promptly as practicable.
2.23 Other Transfers - To deliver securities, funds and other property of the
Fund to a Subcustodian or another custodian as necessary to effect transactions
authorized by proper instructions and upon receipt of proper instructions, to
deliver securities, funds and other property of the Fund to a Subcustodian or
another custodian of the Fund; and, upon receipt of proper instructions, to make
such other disposition of securities, funds or other property of the Fund in a
manner other than or for purposes other than as enumerated elsewhere in this
Agreement, provided that the instructions relating to such disposition shall
state the amount of securities to be delivered
and the name of the person or persons to whom delivery is to be made.
2.24 Investment Limitations - In performing its duties generally, and more
particularly in connection with the purchase, sale and exchange of securities
made by or for the Fund, the Custodian may assume unless and until notified in
writing to the contrary that proper instructions received by it are not in
conflict with or in any way contrary to any provisions of the Fund's Declaration
of Trust or Certificate of Incorporation or By-Laws (or comparable documents) or
votes or proceedings of the shareholders or Trustees or Directors of the Fund.
The Custodian shall in no event be liable to the Fund and shall be indemnified
by the Fund for any violation which occurs in the course of carrying out
instructions given by the Fund of any investment limitations to which the Fund
is subject or other limitations with respect to the Fund's powers to make
expenditures, encumber securities, borrow or take similar actions affecting the
Fund.
2.25 Custodian Advances - In the event that the Custodian is directed by proper
instructions to make any payment or transfer of funds on behalf of the Fund for
which there would be, at the close of business on the date of such payment or
transfer, insufficient funds held by the Custodian on behalf of the Fund, the
Custodian may, in its discretion without further proper instructions, provide an
advance ("Advance") to the Fund in an amount sufficient to allow the completion
of the transaction by reason of which such payment or transfer of funds is to be
made. In addition, in the event the Custodian is directed by proper instructions
to make any payment or transfer of funds on behalf of the Fund as to which it is
subsequently determined that the Fund has overdrawn its cash account with the
Custodian as of the close of business on the date of such payment or transfer,
said overdraft shall constitute an Advance. Any Advance shall be payable on
demand by Custodian, unless otherwise agreed by the Fund and the Custodian, and
shall accrue interest from the date of the Advance to the date of payment by the
Fund at a rate agreed upon from time to time by the Custodian and the Fund. It
is understood that any transaction in respect of which the Custodian shall have
made an Advance, including but not limited to a foreign exchange contract or
transaction in respect of which the Custodian is not acting as a principal, is
for the account of and at the risk of the Fund, and not, by reason of such
Advance, deemed to be a transaction undertaken by the Custodian for its own
account and risk. The Custodian and the Fund acknowledge that the purpose of
Advances is to finance temporarily the purchase or sale of securities for prompt
delivery in accordance with the settlement terms of such transactions or to meet
emergency expenses not reasonably foreseeable by the Fund.
2.26 Restricted Securities - In the case of a "restricted security", the Fund
shall have the responsibility to provide to or obtain for the Custodian, the
issuer of the security or other appropriate third party any necessary
documentation, including
without limitation, legal opinions or consents, and to take any necessary
actions required in connection with the registration of restricted securities in
the manner provided in Section 2.3 upon acquisition thereof by the Fund or
required in connection with any sale or other disposition thereof by the Fund.
Upon acquisition and until so registered, the Custodian shall have no duty to
service such restricted securities, including without limitation, the receipt
and collection of cash and stock dividends, rights and other items of like
nature, nor shall the Custodian have responsibility for the inability of the
Fund to exercise in a timely manner any right in respect of any restricted
security or to take any action in a timely manner in respect of any other type
of corporate action relating to a restricted security. Similarly, the Custodian
shall not have responsibility for the inability of the Fund to sell or otherwise
transfer in a timely manner any restricted security in the absence of any such
documentation or action to be provided, obtained or taken by the Fund. At such
time as the Custodian shall receive any restricted security, regardless of when
it shall be registered as aforesaid, the Fund shall also deliver to the
Custodian a term sheet summarizing those rights, restrictions or other matters
of which the Custodian should have knowledge, such as exercise periods,
expiration dates and payment dates, in order to assist the Custodian in
servicing such securities. As used herein, the term "restricted security" shall
mean a security which is subject to restrictions on transfer, whether by reason
of contractual restrictions or federal, state or foreign securities or similar
laws, or a security which has special rights or contractual features which do
not apply to publicly-traded shares of, or comparable interests representing,
such security.
2.27 Proper Instructions - Proper instructions shall mean a tested telex from
the Fund or a written request, direction, instruction or certification signed or
initialed on behalf of the Fund by one or more person or persons as the Board of
Trustees or Directors of the Fund shall have from time to time authorized,
provided, however, that no such instructions directing the delivery of
securities or the payment of funds to an authorized signatory of the Fund shall
be signed by such person. Those persons authorized to give proper instructions
may be identified by the Board of Trustees or Directors by name, title or
position and will include at least one officer empowered by the Board to name
other individuals who are authorized to give proper instructions on behalf of
the Fund. Telephonic or other oral instructions or instructions given by
facsimile transmission may be given by any one of the above persons and will be
considered proper instructions if the Custodian reasonably believes them to have
been given by a person authorized to give such instructions with respect to the
transaction involved. Oral instructions will be confirmed by tested telex or in
writing in the manner set forth above but the lack of such confirmation shall in
no way affect any action taken by the Custodian in reliance upon such oral
instructions. The Fund authorizes the Custodian to tape
record any and all telephonic or other oral instructions given to the Custodian
by or on behalf of the Fund (including any of its officers, Directors, Trustees,
employees or agents or any investment manager or adviser or person or entity
with similar responsibilities which is authorized to give proper instructions on
behalf of the Fund to the Custodian). Proper instructions may relate to specific
transactions or to types or classes of transactions, and may be in the form of
standing instructions.
Proper instructions may include communications effected directly between
electro-mechanical or electronic devices or systems, in addition to tested
telex, provided that the Fund and the Custodian agree to the use of such device
or system.
2.28 Segregated Account - The Custodian shall upon receipt of proper
instructions establish and maintain on its books a segregated account or
accounts for and on behalf of the Fund, into which account or accounts may be
transferred cash and/or securities of the Fund, including securities maintained
by the Custodian pursuant to Section 2.22 hereof, (i) in accordance with the
provisions of any agreement among the Fund, the Custodian and a broker-dealer
registered under the Securities Exchange Act of 1934 and a member of the
National Association of Securities Dealers, Inc. (or any futures commission
merchant registered under the Commodity Exchange Act) relating to compliance
with the rules of the Options Clearing Corporation and of any registered
national securities exchange (or the Commodity Futures Trading Commission or any
registered contract market), or any similar organization or organizations,
regarding escrow or other arrangements in connection with transactions by the
Fund, (ii) for purposes of segregating cash or securities in connection with
options purchased, sold or written by the Fund or commodity futures contracts or
options thereon purchased or sold by the Fund, (iii) for the purposes of
compliance by the Fund with the procedures required by Investment Company Act
Release No. 10666, or any subsequent release or releases of the Securities and
Exchange Commission relating to the maintenance of segregated accounts by
registered investment companies, and (iv) as mutually agreed from time to time
between the Fund and the Custodian.
3. Powers and Duties of the Custodian with Respect to the Appointment of
Subcustodians: The Fund hereby authorizes and instructs the Custodian to hold
securities, funds and other property of the Fund which are maintained outside
the United States at subcustodians appointed pursuant to the provisions of this
Section 3 (a "Subcustodian"). The Fund shall approve in writing (1) the
appointment of each Subcustodian and the subcustodian agreement to be entered
into between such Subcustodian and the Custodian, and (2) if the Subcustodian is
organized under the laws of a country other than the United States, the country
or countries in which the Subcustodian is authorized to hold securities, cash
and other property of the
Fund. The Fund hereby further authorizes and instructs the Custodian and any
Subcustodian to utilize such securities depositories located outside the United
States which are approved in writing by the Fund to hold securities, cash and
other property of the Fund (a "Foreign Depository"). Upon such approval by the
Fund, the Custodian is authorized on behalf of the Fund to notify each
Subcustodian of its appointment as such.
With respect to Russia, the Company hereby expressly acknowledges that a
Subcustodian for Russian securities may from time to time delegate any of its
duties and responsibilities to any securities depository, clearing agency, share
registration agent or sub-subcustodian (collectively, "Russian Agent") in
Russia, including without limitation Rosvneshtorgbank (also called Vneshtorgbank
RF) ("VTB"). The Company acknowledges that the rights of the Subcustodian
against any such Russian Agent may consist only of a contractual claim against
the Russian Agent. Notwithstanding any provision of this Agreement to the
contrary, neither the Custodian nor the Subcustodian shall be responsible or
liable to a Company or its shareholders for the acts or omissions of any such
Russian Agent. In the event of a loss of securities or cash held on behalf of a
Company through any Russian Agent, the Custodian shall not be responsible to a
Company or its shareholders unless and to the extent it in fact recovers from
the Subcustodian.
It is also understood that no Registrar, whether or not any such Registrar
has entered into a contract or other arrangement with a Subcustodian or Foreign
Depository, is or shall be considered or deemed to be a Foreign Depository or an
agent of the Custodian or any Subcustodian, and accordingly neither the
Custodian nor the Subcustodian shall be responsible for or liable to a Company
or to the shareholders of a Company for the acts or omissions of any such
Registrar.
Those Subcustodians, and the countries where and the Foreign Depositories
through which they or the Custodian may hold securities, cash and other property
of the Fund which the Fund has approved to date are set forth on Appendix A
hereto. Such Appendix shall be amended from time to time as Subcustodians,
and/or countries and/or Foreign Depositories are changed, added or deleted. The
Fund shall be responsible for informing the Custodian sufficiently in advance of
a proposed investment which is to be held in a country not listed on Appendix A,
in order that there shall be sufficient time for the Fund to give the approval
required by the preceding paragraph and for the Custodian to put the appropriate
arrangements in place with such Subcustodian, including negotiation of a
subcustodian agreement and submission of such subcustodian agreement to the Fund
for approval.
If the Fund shall have invested in a security to be held in a country before the
foregoing procedures have been completed, such security shall be held by such
agent as the Custodian may
appoint. In any event, the Custodian shall be liable to the Fund for the actions
of such agent if and only to the extent the Custodian shall have recovered from
such agent for any damages caused the Fund by such agent. At the request of the
Fund, Custodian agrees to remove any securities held on behalf of the Fund by
such agent, if practical, to an approved Subcustodian. Under such circumstances
the Custodian will collect income and respond to corporate actions on a best
efforts basis.
With respect to securities and funds held by a Subcustodian, either directly or
indirectly (including by a Foreign Depository or foreign clearing agency) or by
a Foreign Depository or foreign clearing agency utilized by the Custodian,
notwithstanding any provision of this Agreement to the contrary, payment for
securities purchased and delivery of securities sold may be made prior to
receipt of the securities or payment, respectively, and securities or payment
may be received in a form, in accordance with governmental regulations, rules of
Foreign Depositories and foreign clearing agencies, or generally accepted trade
practice in the applicable local market.
With respect to the securities and funds held by a Subcustodian, either directly
or indirectly, (including by a securities depository or a clearing agency)
including demand and interest bearing deposits, currencies or other deposits and
foreign exchange contracts as referred to in Sections 2.12, 2.13, 2.14 or 2.15,
the Custodian shall be liable to the Fund for any loss or damage to the Fund
caused by or resulting from the acts and omissions of any Subcustodian to the
extent that under the terms set forth in the subcustodian agreement between the
Custodian and the Subcustodian (or in the subcustodian agreement between a
Subcustodian and any secondary Subcustodian), the Subcustodian (or secondary
Subcustodian) has failed to perform in accordance with the standard of conduct
imposed under such subcustodian agreement as determined in accordance with the
law which is adjudicated to govern such agreement and in accordance with any
determination of any court as to the duties of said Subcustodian pursuant to
said agreement. The Custodian shall nevertheless be liable to the Fund for its
own negligence in transmitting any instructions received by it from the Fund and
for its own negligence in connection with the delivery of any securities or
funds held by it to any such Subcustodian. Notwithstanding the foregoing, with
respect to securities and funds held by a Subcustodian listed on Schedule C
attached hereto (as the same may from time to time be amended), either directly
or indirectly (including by a Securities System or a Foreign Depository or
clearing system), including demand deposits, currencies or other deposits and
foreign exchange contracts, the Custodian shall be liable to the Fund if and
only to the extent that such Subcustodian is liable to the Custodian and the
Custodian recovers under the applicable subcustodian agreement.
In the event that any Subcustodian appointed pursuant to the provisions of this
Section 3 fails to perform any of its obligations under the terms and conditions
of the applicable subcustodian agreement, the Custodian shall use its best
efforts to cause such Subcustodian to perform such obligations. In the event
that the Custodian is unable to cause such Subcustodian to perform fully its
obligations thereunder, the Custodian shall forthwith upon the Fund's request
terminate such Subcustodian in accordance with the termination provisions under
the applicable subcustodian agreement and, if necessary or desirable, appoint
another subcustodian in accordance with the provisions of this Section 3. At the
election of the Fund, it shall have the right to enforce, to the extent
permitted by the subcustodian agreement and applicable law, the Custodian's
rights against any such Subcustodian for loss or damage caused the Fund by such
Subcustodian.
The Custodian will not amend any subcustodian agreement or agree to change or
permit any changes thereunder except upon the prior written approval of the
Fund.
The Custodian may, at any time in its discretion upon notification to the Fund,
terminate any Subcustodian of the Fund in accordance with the termination
provisions under the applicable Subcustodian Agreement, and at the written
request of the Fund, the Custodian will terminate any Subcustodian in accordance
with the termination provisions under the applicable Subcustodian Agreement.
If necessary or desirable, the Custodian may appoint another subcustodian to
replace a Subcustodian terminated pursuant to the foregoing provisions of this
Section 3, such appointment to be made upon approval of the successor
subcustodian by the Fund's Board of Directors or Trustees in accordance with the
provisions of this Section 3.
In the event the Custodian receives a claim from a Subcustodian under the
indemnification provisions of any subcustodian agreement, the Custodian shall
promptly give written notice to the Fund of such claim. No more than thirty days
after written notice to the Fund of the Custodian's intention to make such
payment, the Fund will reimburse the Custodian the amount of such payment except
in respect of any negligence or misconduct of the Custodian.
4. Assistance by the Custodian as to Certain Matters:
The Custodian may assist generally in the preparation of reports
to Fund shareholders and others, audits of accounts, and other ministerial
matters of like nature.
5. Powers and Duties of the Custodian with Respect to its Role as
Recordkeeping Agent: The Custodian shall have and perform the following duties
with respect to recordkeeping:
5.l Records - To create, maintain and retain such records relating to its
activities and obligations under this Agreement as are required under the
Investment Company Act of 1940 and the rules and regulations thereunder
(including Section 31 thereof and Rules 31a-1 and 31a-2 thereunder) and under
applicable Federal and State tax laws. All such records will be the property of
the Fund and in the event of termination of this Agreement shall be delivered to
the successor custodian.
5.2 Accounts - To keep books of account and render statements, including
interim monthly and complete quarterly financial statements, or copies thereof,
from time to time as reasonably requested by proper instructions.
5.3 Access to Records - The books and records maintained by the Custodian
pursuant to Sections 5.1 and 5.2 shall at all times during the Custodian's
regular business hours be open to inspection and audit by officers of, attorneys
for and auditors employed by the Fund and by employees and agents of the
Securities and Exchange Commission, provided that all such individuals shall
observe all security requirements of the Custodian applicable to its own
employees having access to similar record within the Custodian and such
regulations as may be reasonably imposed by the Custodian.
6. Standard of Care and Related Matters:
6.1 Liability of the Custodian with Respect to Proper Instructions; Evidence of
Authority, Etc. The Custodian shall not be liable for any action taken or
omitted in reliance upon proper instructions believed by it to be genuine or
upon any other written notice, request, direction, instruction, certificate or
other instrument believed by it to be genuine and signed by the proper party or
parties.
The Secretary or Assistant Secretary of the Fund shall certify to the Custodian
the names, signatures and scope of authority of all persons authorized to give
proper instructions or any other such notice, request, direction, instruction,
certificate or instrument on behalf of the Fund, the names and signatures of the
officers of the Fund, the name and address of the Shareholder Servicing Agent,
and any resolutions, votes, instructions or directions of the Fund's Board of
Directors or Trustees or shareholders. Such certificate may be accepted and
relied upon by the Custodian as conclusive evidence of the facts set forth
therein and may be considered in full force and effect until receipt of a
similar certificate to the contrary.
So long as and to the extent that it is in the exercise of reasonable care, the
Custodian shall not be responsible for the title, validity or genuineness of any
property or evidence of title thereto received by it or delivered by it pursuant
to this Agreement.
The Custodian shall be entitled, at the expense of the Fund, to receive and
act upon advice of (i) counsel regularly retained by the Custodian in respect of
custodian matters, (ii) counsel for the Fund, or (iii) such other counsel as the
Fund and the Custodian may agree upon, with respect to all matters, and the
Custodian shall be without liability for any action reasonably taken or omitted
pursuant to such advice.
6.2 Liability of the Custodian with Respect to Use of Securities Systems and
Foreign Depositories - With respect to the portfolio securities, cash and other
property of the Fund held by a Securities System or by a Foreign Depository
utilized by the Custodian or any Subcustodian, the Custodian shall be liable to
the Fund only for any loss or damage to the Fund resulting from use of the
Securities System or Foreign Depository if caused by any negligence, misfeasance
or misconduct of the Custodian or any of its Agents (as said term is defined in
Section 6.6) or of any of its or its Agents' employees or from any failure of
the Custodian or any such Agent to enforce effectively such rights as it may
have against the Securities System or Foreign Depository. At the election of the
Fund, it shall be entitled to be subrogated to the rights of the Custodian with
respect to any claim against the Securities System, Foreign Depository or any
other person which the Custodian may have as a consequence of any
such loss or damage to the Fund if and to the extent that the Fund has not been
made whole for any such loss or damage.
6.3 Standard of Care; Liability; Indemnification - The Custodian shall be held
only to the exercise of reasonable care and diligence in carrying out the
provisions of this Agreement, provided that the Custodian shall not thereby be
required to take any action which is in contravention of any applicable law,
rule or regulation or any order or judgment of any court of competent
jurisdiction. It is also agreed that the Company shall be responsible for
preparation and filing of tax returns, reports and other documents on any
activities it undertakes in Russia which are to be filed with any relevant
governmental or other authority and for the payment of any taxes, levies, duties
or similar liability the Company incurs in respect of property held or sold in
Russia or of payments or distributions received in respect thereof in Russia.
Accordingly, each Company hereby agrees to indemnify and hold harmless the
Custodian from any loss, cost or expense resulting from the imposition or
assessment of any such tax, duty, levy or liability or any expenses related
thereto.
The Fund agrees to indemnify and hold harmless the Custodian and its nominees
from all claims and liabilities (including counsel fees) incurred or assessed
against it or its nominees in connection with the performance of this Agreement,
except such as may arise from its or its nominee's breach of the relevant
standard of conduct set forth in this Agreement. Without limiting the foregoing
indemnification obligation of the Fund, the Fund agrees to indemnify the
Custodian and any nominee in whose name portfolio securities or other property
of the Fund is registered against any liability the Custodian or such nominee
may incur by reason of taxes assessed to the Custodian or such nominee or other
costs, liability or expense incurred by the Custodian or such nominee resulting
directly or indirectly from the fact that portfolio securities or other property
of the Fund is registered in the name of the Custodian or such nominee.
In no event shall the Custodian incur liability under this Agreement if the
Custodian or any Subcustodian, Securities System, Foreign Depository, Banking
Institution or any agent or entity utilized by any of them is prevented,
forbidden or delayed from performing, or omits to perform, any act or thing
which this Agreement provides shall be performed or omitted to be performed, by
reason of (i) any Sovereign Risk or (ii) any provision of any present or future
law or regulation or order of the United States of America or any state thereof,
or of any foreign country or political subdivision thereof, or of any securities
depository or clearing agency which operates a central system for handling of
securities or equivalent book-entries in a country or which operates a
transnational system for the central handling of securities or equivalent
book-entries, or (iii) any provision of any order or judgment of any court of
competent jurisdiction. A "Sovereign Risk" shall mean nationalization,
expropriation,
devaluation, revaluation, confiscation, seizure, cancellation, destruction or
similar action by any governmental authority, de facto or de jure; or enactment,
promulgation, imposition or enforcement by any such governmental authority of
currency restrictions, exchange controls, taxes, levies or other charges
affecting the Fund's property; or acts of war, terrorism, insurrection or
revolution; or any other act or event beyond the Custodian's control.
6.4 Reimbursement of Disbursements, Etc. - The Custodian shall be entitled to
receive reimbursement from the Fund on demand, in the manner provided in Section
7, for its cash disbursements, expenses and charges (including the fees and
expenses of any Subcustodian or any Agent) in connection with this Agreement,
but excluding salaries and usual overhead expenses.
6.5 Security for Obligations to Custodian - If the Custodian or any
nominee thereof shall incur or be assessed any taxes, charges, expenses,
assessments, claims or liabilities in connection with the performance of this
Agreement (collectively a "Liability"), except such as may arise from its or
such nominee's breach of the relevant standard of conduct set forth in this
Agreement, or if the Custodian shall make any Advance to the Fund, then in such
event any property at any time held for the account of the Fund by the Custodian
or a Subcustodian shall be security for such Liability or for such Advance and
the interest thereon, and if the Fund shall fail to pay such Advance or interest
when due or shall fail to reimburse or indemnify the Custodian promptly in
respect of a Liability, the Custodian shall be entitled to utilize available
cash and to dispose of the Fund's property, including securities, to the extent
necessary to obtain repayment, reimbursement or indemnification.
6.6 Appointment of Agents - The Custodian may at any time or times in its
discretion appoint (and may at any time remove) any other bank or trust company
as its agent (an "Agent") to carry out such of the provisions of this Agreement
as the Custodian may from time to time direct, provided, however, that the
appointment of such Agent (other than an Agent appointed pursuant to the third
paragraph of Section 3) shall not relieve the Custodian of any of its
responsibilities under this Agreement.
6.7 Powers of Attorney - Upon request, the Fund shall deliver to the Custodian
such proxies, powers of attorney or other instruments as may be reasonable and
necessary or desirable in connection with the performance by the Custodian or
any Subcustodian of their respective obligations under this Agreement or any
applicable subcustodian agreement.
7. Compensation of the Custodian: The Fund shall pay the Custodian a custody
fee based on such fee schedule as may from time to time be agreed upon in
writing by the Custodian and the Fund. Such fee, together with all amounts for
which the
Custodian is to be reimbursed in accordance with Section 6.4, shall be billed to
the Fund and be paid in cash to the Custodian.
8. Termination; Successor Custodian: This Agreement shall continue in full
force and effect until terminated by either party by an instrument in writing
delivered or mailed, postage prepaid, to the other party, such termination to
take effect not sooner than one hundred and twenty days (120) after the date of
such delivery or mailing. In the event of termination the Custodian shall be
entitled to receive prior to delivery of the securities, funds and other
property held by it all accrued fees and unreimbursed expenses the payment of
which is contemplated by Sections 6.4 and 7, and all Advances and Liabilities,
upon receipt by the Fund of a statement setting forth such fees, expenses,
Advances and Liabilities.
In the event of the appointment of a successor custodian, it is agreed that the
funds and securities owned by the Fund and held by the Custodian or any
Subcustodian shall be delivered to the successor custodian, and the Custodian
agrees to cooperate with the Fund in execution of documents and performance of
other actions necessary or desirable in order to substitute the successor
custodian for the Custodian under this Agreement.
9. Amendment: This Agreement constitutes the entire understanding and
agreement of the parties hereto with respect to the subject matter hereof. No
provision of this Agreement may be amended or terminated except by a statement
in writing signed by the party against which enforcement of the amendment or
termination is sought.
In connection with the operation of this Agreement, the Custodian and the Fund
may agree in writing from time to time on such provisions interpretative of or
in addition to the provisions of this Agreement as may in their joint opinion be
consistent with the general tenor of this Agreement. No interpretative or
additional provisions made as provided in the preceding sentence shall be deemed
to be an amendment of this Agreement.
The section headings in this Agreement are for the convenience of the parties
and in no way alter, amend, limit or restrict the contractual obligations of the
parties set forth in this Agreement.
10. Governing Law: This Agreement is executed and delivered in The Commonwealth
of Massachusetts and shall be governed by and construed according to the laws of
said Commonwealth.
11. Notices: Notices and other writings delivered or mailed postage prepaid to
the Fund addressed to the Fund at BEA Associates, 000 Xxxx 00xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 or to such other address as the Fund may have designated to
the Custodian in writing, or to the Custodian at 00 Xxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, Attention: Manager, Securities
Department, or to such other address as the Custodian may have designated to the
Fund in writing, shall be deemed to have been properly delivered or given
hereunder to the respective addressee.
12. Binding Effect: This Agreement shall be binding on and shall inure to the
benefit of the Fund and the Custodian and their respective successors and
assigns, provided that neither party hereto may assign this Agreement or any of
its rights or obligations hereunder without the prior written consent of the
other party.
13. Counterparts: This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original. This Agreement shall become effective
when one or more counterparts have been signed and delivered by each of the
parties.
14. Risk Disclosure Acknowledgement: The Company hereby acknowledges that it
has received, has read and has understood the Custodian's Risk Disclosure
Statement, a copy of which is attached hereto and is incorporated herein by
reference. The Company further acknowledges that the Risk Disclosure Statement
is not comprehensive, and warrants and represents to the Custodian that it has
undertaken its own review of the risks associated with investment in Russia and
has concluded that such investment is appropriate for the Company and in no way
conflicts with the Company's constitutive documents, investment objective,
duties to its shareholders or with any regulatory requirements applicable to the
Company.
15. 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 or regulation.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be executed
in its name and behalf on the day and year first above written.
BEA INCOME FUND, INC. XXXXX BROTHERS XXXXXXXX & CO.
BEA STRATEGIC GLOBAL
INCOME FUND, INC.
By: /s/ Xxxxxxx Xxxxxxxxx By: /s/ [Illegible]
Name: Xxxxxxx Xxxxxxxxx Name:
Title: Vice President and Title:
Secretary
Date: January 29, 1999 Date:
