1
EXHIBIT-99.B8(b)
FOREIGN CUSTODY AGREEMENT
AGREEMENT dated February 1, 1988 between THE CHASE MANHATTAN
BANK, N.A. ("Bank") and XXXXXX TOTAL RETURN FUND ("Fund").
1. Custody Account. The Bank agrees to establish and
maintain (a) a custody account in the name of the Fund ("Custody
Account") for any and all stocks, shares, bonds, debentures,
notes, mortgages or other obligations for the payment of money
and any certificates, receipts, warrants or other instruments
representing rights to receive, purchase or subscribe for the
same or evidencing or representing any other rights or interests
therein and other similar property (hereinafter called
"Securities") and from time to time received by the Bank or its
subcustodian (as defined in the last sentence of Section 3) for
the account of the Fund, and (b) a deposit account in the name of
the Fund ("Deposit Account") for any and all cash in any currency
received by the Bank or its subcustodian for the account of the
Fund, which cash shall not be subject to withdrawal by draft or
check.
2. Maintenance of Securities Abroad. Securities in the
Custody Account shall be held in the country or other
jurisdiction as shall be specified from time to time in
Instructions, provided that such country or other jurisdiction
shall be one in which the principal trading market for such
Securities is located or the country or other jurisdiction in
which such Securities are to be presented for payment or are
acquired for the Custody Account and cash in the Deposit Account
shall be credited to an account in such amounts and in the
country or other jurisdiction as shall be specified from time to
time in Instructions, provided that such country or other
jurisdiction shall be one in which such cash is the legal
currency for the payment of public or private debts.
3. Eligible Foreign Custodians and Securities
Depositories. The Fund's Board of Trustees authorizes the Bank
to hold the Securities in the Custody Account and the cash in the
Deposit Account in custody and deposit accounts, respectively,
which have been established by the Bank with one of its branches,
a branch of a qualified U.S. bank, an eligible foreign custodian
or an eligible foreign securities depository; provided, however,
that the Bank has recommended and the Board has approved the use
of, and the Bank's contract with, such eligible foreign custodian
or eligible foreign securities depository by resolution, and a
certified copy of such resolution has been provided to the Bank.
2
Furthermore, if one of its branches, a branch of a qualified U.S.
bank or an eligible foreign custodian is selected to act as the
Bank's subcustodian to hold any of the Securities or cash, such
entity is authorized to hold such Securities or cash in its
account with any eligible foreign securities depository in which
it participates. For purposes of this Agreement (a) "qualified
U.S. bank" shall mean a qualified U.S. bank as defined in Rule
17f-5 under the Investment Company Act of 1940 ("Investment
Company Act"); (b) "eligible foreign custodian" shall mean (i) a
banking institution or trust company incorporated or organized
under the laws of a country other than the United States that is
regulated as such by that country's government or an agency
thereof and that has shareholders' equity in excess of $200
million in U.S. currency (or a foreign currency equivalent
thereof), (ii) a majority owned direct or indirect subsidiary of
a qualified U.S. bank or bank holding company that is
incorporated or organized under the laws of a country other than
the United States and that has shareholders' equity in excess of
$100 million in U.S. currency (or a foreign currency equivalent
thereof) or (iii) a banking institution or trust company
incorporated or organized under the laws of a country other than
the United States or a majority owned direct or indirect
subsidiary of a qualified U.S. bank or bank holding company that
is incorporated or organized under the laws of a country other
than the United States which has such other qualifications as
shall be authorized or permitted by a rule, regulation,
interpretation or exemptive order promulgated by or under the
authority of the Securities and Exchange Commission, specified in
Instructions and approved by the Bank; and (c) "eligible foreign
securities depository" shall mean a securities depository or
clearing agency, incorporated or organized under the laws of a
country other than the United States, which operates (i) the
central system for handling of securities or equivalent book-
entries in that country or (ii) a transnational system for the
central handling of securities or equivalent book-entries.
Hereinafter the term "subcustodian" will refer to any branch
of a qualified U.S. bank, any eligible foreign custodian or any
eligible foreign securities depository with which the Bank has
entered an agreement of the type contemplated hereunder regarding
Securities and/or cash held in or to be acquired for the Custody
Account or the Deposit Account.
4. Use of Subcustodian. With respect to Securities and
other assets which are maintained by the Bank in the physical
custody of a subcustodian pursuant to Section 3 (as used in this
Section 4, the term "Securities" means such Securities and other
assets),
-2-
3
(a) The Bank will identify on its books as belonging
to the Fund any Securities held by such subcustodian.
(b) In the event that a subcustodian permits any of
the Securities placed in its care to be held in an eligible
foreign securities depository, such subcustodian will be
required by its agreement with the Bank to identify on its
books such Securities as being held for the account of the
Bank as a custodian for its customers.
(c) Any Securities in the Custody Account held by a
subcustodian of the Bank will be subject only to the
instructions of the Bank or its agents; and any Securities
held in an eligible foreign securities depository for the
account of a subcustodian will be subject only to the
instructions of such subcustodian.
(d) The Bank will only deposit Securities in an
account with a subcustodian which includes exclusively the
assets held by the Bank for its customers, and the Bank will
cause such account to be designated by such subcustodian as
a special custody account for the exclusive benefit of
customers of the Bank.
(e) Any agreement the Bank shall enter into with a
subcustodian with respect to the holding of Securities
shall require that (i) the Securities are not subject to any
right, charge, security interest, lien or claim of any kind
in favor of such subcustodian except for their safe custody
or administration and (ii) beneficial ownership of such
Securities is freely transferable without the payment of
money or value other than for safe custody or
administration; provided, however, that the foregoing shall
not apply to the extent that any of the above-mentioned
rights, charges, etc. result from any compensation or other
expenses arising with respect to the safekeeping of
Securities pursuant to such agreement or from any
arrangements made by the Fund with any such subcustodian.
(f) The Bank shall allow independent public
accountants of the Fund such reasonable access to the
records of the Bank relating to the Securities held in the
Custody Account as is required by such accountants in
connection with their examination of the books and records
pertaining to the affairs of the Fund. The Bank shall,
subject to restrictions under applicable law, also obtain
from any subcustodian with which the Bank maintains the
physical possession of any Securities in the Custody Account
an undertaking to permit independent public accountants of
the Fund such reasonable access to the records of such
-3-
4
subcustodian as may be required in connection with their
examination of the books and records pertaining to the
affairs of the Fund. The Bank shall furnish to the Fund
such reports (or portions thereof) of the Bank's external
auditors as relate directly to the Bank's system of internal
accounting controls applicable to the Bank's duties under
this Agreement. The Bank shall use its best efforts to
obtain and furnish the Fund with similar reports with
respect to each eligible foreign custodian and eligible
foreign securities depository holding Securities of the
Fund.
(g) The Bank will supply to the Fund from time to time
as mutually agreed upon a statement in respect to any
Securities in the Custody Account held by a subcustodian,
including an identification of the entity having possession
of the Securities, and the Bank will send to the Fund an
advice or notification of any transfers of Securities to or
from the Custody Account, indicating, as to Securities
acquired for the Fund, the identity of the entity having
physical possession of such Securities. In the absence of
the filing in writing with the Bank by the Fund of
exceptions or objections to any such statement within sixty
(60) days following receipt of the statement, the Fund shall
be deemed to have approved such statement; and in such case
or upon written approval of the Fund of any such statement
the Bank shall, to the extent permitted by law, be released,
relieved and discharged with respect to all matters and
things set forth in such statement as though such statement
had been settled by the decree of a court of competent
jurisdiction in an action in which the Fund and all persons
having any equity interest in the Fund were parties.
(h) The Bank hereby warrants to the Fund that in its
opinion, after due inquiry, the established procedures to be
followed by each of its branches, each branch of a qualified
U.S. bank, each eligible foreign custodian and each eligible
foreign securities depository holding the Fund's Securities
pursuant to this Agreement afford protection for such
Securities at least equal to that afforded by the Bank's
established procedures with respect to similar securities
held by the Bank (and its securities depositories) in New
York.
5. Deposit Account Payments. Subject to the provisions of
Section 7, the Bank shall make, or cause its subcustodians to
make, payments of cash credited to the Deposit Account only
-4-
5
(a) in connection with the purchase of Securities for
the Fund and the delivery of such Securities to, or the
crediting of such Securities to the account of, the Bank or
its subcustodian, each such payment to be made at prices as
its subcustodian, each such payment to be made at prices as
confirmed by Instructions (as defined in Section 9 hereof)
from Authorized Persons (as defined in Section 10 hereof);
(b) for the purchase or redemption of shares of the
capital stock of the Fund and the delivery to, or crediting
to the account of, the Bank or its subcustodian of such
shares to be so purchased or redeemed;
(c) for the payment for the account of the Fund of
dividends, interest, taxes, management or supervisory fees,
capital distributions or operating expenses;
(d) for the payments to be made in connection with
the conversion, exchange or surrender of Securities held in
the Custody Account;
(e) for transmittal either to United Missouri Bank of
Kansas City, National Association, or to Investors Fiduciary
Trust Company, as Custodian for the Fund;
(f) for other proper corporate purposes of the Fund;
or
(g) upon the termination of this Custody Agreement as
hereinafter set forth.
All payments of cash for a purpose permitted by subsection (a),
(b), (c), (d) or (e) of this Section 5 will be made only upon
receipt by the Bank of Instructions from Authorized Persons which
shall specify the purpose for which the payment is to be made and
the applicable subsection of this Section 5. In the case of any
payment to be made for the purpose permitted by subsection (f) of
this Section 5, the Bank must first receive a certified copy of a
resolution of the Board adequately describing such payment,
declaring such purpose to be a proper purpose, and naming the
person or persons to whom such payment is to be made. Any
payment pursuant to subsection (g) of this Section 5 will be made
in accordance with Section 17.
In the event that any payment made under this Section 5
exceeds the funds available in the Deposit Account, the Bank may,
in its discretion, advance the Fund an amount equal to such
excess and such advance shall be deemed a loan from the Bank to
the Fund, payable on demand, bearing interest at the rate of
interest customarily charged by the Bank on similar loans.
-5-
6
If the Bank causes the Deposit Account to be credited on the
payable date for interest, dividends or redemptions, the Fund
will promptly return to the Bank any such amount or property so
credited upon oral or written notification that neither the Bank
nor its subcustodian can collect such amount or property in the
ordinary course of business. The Bank or its subcustodian, as
the case may be, shall have no duty or obligation to institute
legal proceedings, file a claim or proof of claim in any
insolvency proceeding or take any other action with respect to
the collection of such amount or property beyond its ordinary
collection procedures.
6. Custody Account Transactions. Subject to the
provisions of Section 7, Securities in the Custody Account will
be transferred, exchanged or delivered by the Bank or its
subcustodians only
(a) upon sale of such Securities for the Fund and
receipt by the Bank or its subcustodian only of payment
therefor, each such payment to be in the amount confirmed by
Instructions from Authorized Persons;
(b) when such Securities are called, redeemed or
retired, or otherwise become payable;
(c) in exchange for or upon conversion into other
Securities along or other Securities and cash pursuant to
any plan or merger, consolidation, reorganization,
recapitalization or readjustment;
(d) upon conversion of such Securities pursuant to
their terms into other Securities;
(e) upon exercise of subscription, purchase or other
similar rights represented by such Securities;
(f) for the purpose of exchanging interim receipts or
temporary Securities for definitive Securities;
(g) for the purpose of delivery either to United
Missouri Bank of Kansas City, National Association, or to
Investors Fiduciary Trust Company, as Custodian for the
Fund;
(h) for the purpose of redeeming in kind shares of the
Fund against delivery to the Bank or its subcustodian of
such shares to be so redeemed;
(i) for other proper trust purposes of the Fund;
-6-
7
(j) upon the termination of this Custody Agreement as
hereinafter set forth.
All transfers, exchanges or deliveries of Securities in the
Custody Account for a purpose permitted by either subsection (a),
(b), (c), (d), (e), (f) or (g) of this Section 6 will be made,
except as provided in Section 8, only upon receipt by the Bank of
Instructions from Authorized Persons which shall specify the
purpose of the transfer, exchange or delivery to be made and the
applicable subsection of this Section 6. In the case of any
transfer or delivery to be made for the purpose permitted by
subsection (h) of this Section 6, the Bank must first receive
Instructions from Authorized Persons specifying the shares held
by the Bank or its subcustodian to be so transferred or delivered
and naming the person or persons to whom transfers or delivery of
such shares shall be made. In the case of any transfer, exchange
or delivery to be made for the purpose permitted by subsection
(i) of this Section 6, the Bank must first receive a certified
copy of a resolution of the Board adequately describing such
transfer, exchange or delivery, declaring such purpose to be a
proper trust purpose, and naming the person or persons to whom
delivery of such Securities shall be made. Any transfer or
delivery pursuant to subsection (j) of this Section 6 will be
made in accordance with Section 17.
7. Custody Account Procedures. With respect to any
transaction involving Securities held in or to be acquired for
the Custody Account, the Bank in its discretion may cause the
Deposit Account to be credited on the contractual settlement date
with the proceeds of any sale or exchange of Securities from the
Custody Account and to be debited on the contractual settlement
date for the cost of Securities purchased or acquired for the
Custody Account. The Bank may reverse any such credit or debit
if the transaction with respect to which such credit or debit
were made fails to settle within a reasonable period, determined
by the Bank in its discretion, after the contractual settlement
date, except that if any Securities delivered pursuant to this
Section 7 are returned by the recipient thereof, the Bank may
cause any such credits and debits to be reversed at any time.
With respect to any transactions as to which the Bank does not
determine so to credit or debit the Deposit Account, the proceeds
from the sale or exchange of Securities will be credited and the
cost of such Securities purchased or acquired will be debited to
the Deposit Account on the date such proceeds or Securities are
received by the Bank.
Notwithstanding the preceding paragraph, settlement and
payment for Securities received for, and delivery of Securities
out of, the Custody Account may be effected in accordance with
the customary or established securities trading or securities
-7-
8
processing practices and procedures in the jurisdiction or market
in which the transaction occurs, including, without limitation,
delivering Securities to the purchaser thereof or to a dealer
therefor (or an agent for such purchaser or dealer) against a
receipt with the expectation of receiving later payment for such
Securities from such purchaser or dealer.
8. Actions of the Bank. Until the Bank receives
Instructions from Authorized Persons to the contrary, the Bank
will, or will instruct its subcustodian to,
(a) present for payment any Securities in the Custody
Account which are called, redeemed or retired or otherwise
become payable and all coupons and other income items which
call for payment upon presentation to the extent that the
Bank or subcustodian is aware of such opportunities for
payment, and hold cash received upon presentation of such
Securities in accordance with the provisions of Sections 2,
3 and 4 of this Agreement;
(b) in respect of Securities in the Custody Account,
execute in the name of the Fund such ownership and other
certificates as may be required to obtain payments in
respect thereof;
(c) exchange interim receipts or temporary Securities
in the Custody Account for definitive Securities;
(d) convert moneys received with respect to Securities
of foreign issue into United States dollars or any other
currency necessary to effect any transaction involving the
Securities whenever it is practicable to do so through
customary banking channels, using any method or agency
available, including, but not limited to, the facilities of
the Bank, its subsidiaries, affiliates or subcustodians; and
(e) in the event of any loss of Securities or Cash,
use its best efforts to ascertain the circumstances relating
to such loss and promptly report the same to the Fund.
9. Instructions. As used in this Agreement, the term
"Instructions" means instructions of the Fund received by the
Bank, via telephone, telex, TWX, facsimile transmission, bank
wire or other teleprocess or electronic instruction system
acceptable to the Bank which the Bank reasonably believes in good
faith to have been given by Authorized Persons or which are
transmitted with proper testing or authentication pursuant to
terms and conditions which the Bank may specify.
-8-
9
Any Instructions delivered to the Bank by telephone shall
promptly thereafter be confirmed in writing by an Authorized
Person (which confirmation may bear the facsimile signature of
such Person), but the Fund will hold the Bank harmless for its
failure to send such confirmation in writing, the failure of such
confirmation to conform to the telephone instructions received or
the Bank's failure to produce such confirmation at any subsequent
time provided that the Bank has timely advised the Fund of its
failure to send such confirmation in writing or the failure of
such confirmation to conform to the telephone instructions
received. Unless otherwise expressly provided, all Instructions
shall continue in full force and effect until cancelled or
superceded. If the Bank requires test arrangements, authen-
tication methods or other security devices to be used with
respect to instructions, any Instructions given by the Fund
thereafter shall be given and processed in accordance with such
terms and conditions for the use of such arrangements, methods or
devices as the Bank may put into effect and modify from time to
time. The Fund shall safeguard any testkeys, identification
codes or other security devices which the Bank shall make
available to it. The Bank may electronically record any
Instructions given by telephone, and any other telephone
discussions, with respect to the Custody Account.
10. Authorized Persons. As used in this Agreement, the
term "Authorized Persons" means such officers or such agents of
the Fund as have been designated by a resolution of the Board, a
certified copy of which has been provided to the Bank, to act on
behalf of the Fund in the performance of any acts which
Authorized Persons may do under this Agreement. Such persons
shall continue to be Authorized Persons until such time as the
Bank receives instructions from Authorized Persons that any such
officer or agent is no longer an Authorized Person.
11. Nominees. Securities in the Custody Account which are
ordinarily held in registered form may be registered in the name
of the Bank's nominee or, as to any Securities in the possession
of an entity other than the Bank, in the name of such entity's
nominee. The Fund agrees to hold any such nominee harmless from
any liability as a holder of record of such Securities. The Bank
may without notice to the Fund cause any such Securities to cease
to be registered in the name of any such nominee and to be
registered in the name of the Fund. In the event that any
Securities registered in the name of the Bank's nominee or held
by one of its subcustodians and registered in the name of such
subcustodian's nominee are called for partial redemption by the
issuer of such Security, the Bank may allot, or cause to be
allotted, the called portion to the respective beneficial holders
of such class of security in any manner the Bank deems to be fair
and equitable.
-9-
10
12. Standard of Care. The Bank shall be responsible for
the performance of only such duties as are set forth herein or
contained in Instructions given to the Bank by Authorized Persons
which are not contrary to the provisions of this Agreement. The
Bank will use reasonable care with respect to the safekeeping of
Securities in the Custody Account. The Bank shall be liable to
the Fund for any loss which shall occur as the result of the
failure of a subcustodian or an eligible foreign securities
depository engaged by such subcustodian to exercise reasonable
care with respect to the safekeeping of such Securities and other
assets to the same extent that the Bank would be liable to the
Fund if the Bank were holding such Securities and other assets in
New York. In the event of any loss to the Fund by reason of the
failure of the Bank or its subcustodian or an eligible foreign
securities depository engaged by such subcustodian to utilize
reasonable care, the Bank shall be liable to the Fund to the
extent of the Fund's damages, to be determined based on the
market value of the property which is the subject of the loss at
the date of discovery of such loss and without reference to any
special conditions or circumstances. The Bank shall be held to
the exercise of reasonable care in carrying out this Agreement
but shall be indemnified by, and shall be without liability to,
the Fund for any action taken or omitted by the Bank in good
faith without negligence. The Bank shall be entitled to rely,
and may act, on advice of counsel (who may be counsel for the
Fund) on all matters and shall be without liability for any
action reasonably taken or omitted pursuant to such advice.
The Bank need not maintain any insurance for the benefit of
the Fund. However, the Bank represents and warrants that it
presently maintains a bankers' blanket bond ("Bond") which
provides standard fidelity and non-negligent loss coverage with
respect to securities which may be held by the Bank and
securities which may be held in the offices of foreign banks and
foreign securities depositories which may be utilized by the Bank
pursuant to this Agreement. The Bank agrees that if at any time
the Bank for any reason discontinues such coverage, it shall
immediately notify the Fund in writing. The Bank represents that
only the named insured on the Bond, which includes the Bank but
not any of the Bank's customers, is directly protected against
loss. The Bank represents that while it might resist a claim of
one of its customers to recover for a loss not covered by the
Bond, as a practical matter, where a claim is brought and loss is
possibly covered by the Bond, the Bank would give notice of the
claim to its insurer, and the insurer would normally determine
whether to defend the claim against the Bank or to pay the claim
on behalf of the Bank.
All collections of funds or other property paid or
distributed in respect of Securities in the Custody Account shall
-10-
11
be made at the risk of the Fund. The Bank shall have no
liability for any loss occasioned by delay in the actual receipt
of notice by the Bank or by its subcustodian of any payment,
redemption or other transaction regarding Securities in the
Custody Account in respect of which the Bank has agreed to take
action as provided in Section 8 hereof. The Bank shall not be
liable for any action taken in good faith upon Instructions or
upon any certified copy of any resolution of the Board and may
rely on the genuineness of any such documents which it may in
good faith believe to be validly executed. The Bank shall not be
liable for any loss resulting from, or caused by, the direction
of the Fund to maintain custody of any Securities or cash in a
foreign country including, but not limited to, losses resulting
from nationalization, expropriation, currency restrictions, acts
of war or terrorism, insurrection, revolution, nuclear fusion,
fission or radiation, or acts of God.
13. Compliance with Securities and Exchange Commission
Rules and Orders. To the extent that a condition of a rule,
regulation, interpretation or exemptive order promulgated by or
under the authority of the Securities and Exchange Commission
applies to the Bank or the Fund each shall be solely responsible
to assure that this Agreement and the maintenance of Securities
and cash under this Agreement complies with any such rule,
regulation, interpretation or exemptive order.
14. Corporate Action. The Bank or its subcustodian is to
forward promptly to the Fund all communications relative to the
Securities in the Custody Account. Such communications as call
for voting or the exercise of rights or other specific action
(including material relative to legal proceedings intended to be
transmitted to security holders) shall be transmitted to the Fund
by means which will permit the Fund to take timely action. The
Bank or its subcustodian will cause its nominee to execute and
deliver to the Fund proxies relating to Securities in the Custody
Account registered in the name of such nominee but without
indicating the manner in which such proxies are to be voted.
Proxies relating to bearer Securities will be delivered in
accordance with written instructions from Authorized Persons.
Bank hereby agrees that Bank shall create, maintain, and
retain all records relating to its activities and obligations
under this Agreement in such manner as will meet the obligations
of the Fund under the Investment Company Act, particularly
Section 31 thereof and Rules 31a-1, 31a-2 and 31a-3 thereunder,
and applicable Federal, state and foreign tax laws and other laws
or administrative rules or procedures, in each case as currently
in effect, which may be applicable to the Fund. All records so
maintained in connection with the performance of its duties under
this Agreement shall be preserved and maintained as required by
-11-
12
regulation and in the event of termination of the Agreement,
shall be available to the Fund or its agent upon request.
15. Fees and Expenses. The Fund agrees to pay to the Bank
from time to time such compensation for its services pursuant to
this Agreement as may be mutually agreed upon in writing from
time to time including reimbursement of the Bank's reasonable
out-of-pocket or incidental expenses, including legal fees. The
Fund hereby agrees to hold the Bank harmless from any liability
or loss resulting from any taxes or other governmental charges,
and any expenses related thereto, which may be imposed, or
assessed with respect to the Custody Account or any Securities in
the Custody Account and also agrees to hold the Bank, its
subcustodians, and their respective nominees harmless from any
liability as a record holder of Securities in the Custody
Account. The Bank is authorized to charge any account of the
Fund for such items and the Bank shall have a lien on Securities
in the Custody Account and on cash in the Deposit Account for any
amount owing to the Bank from time to time under this Agreement.
16. Effectiveness. This Agreement shall be effective on
the date first noted above; provided, however, that the Board has
provided the Bank a certified copy of a resolution that (i)
approves each of the subcustodians listed in Appendix A hereto
and the terms of the custody agreement between the Bank and each
such subcustodian attached as Exhibits I through hereof, and
(ii) states that the Board has determined that the use of each
such subcustodian and the terms of each such subcustody agreement
are consistent with the best interests of the Fund and its
shareholders.
17. Termination. This Agreement may be terminated by the
Fund or the Bank by 60 days written notice to the other, sent by
registered mail, provided that any termination by the Fund shall
be authorized by a resolution of its Board, a certified copy of
which shall accompany such notice of termination, and provided
further, that such resolution shall specify the names of the
persons to whom the Bank shall deliver the Securities in the
Custody Account and to whom the cash in the Deposit Account shall
be paid. If notice of termination is given by the Bank, the Fund
shall, within 60 days following the giving of such notice,
deliver to the Bank a certified copy of a resolution of its Board
specifying the names of the persons to whom the Bank shall
deliver the Securities in the Custody Account and to whom the
cash in the Deposit Account shall be paid. In either case the
Bank will deliver such Securities and cash to the persons so
specified, after deducting therefrom any amounts which the Bank
determines to be owed to it under Section 15. If within 60 days
following the giving of a notice of termination by the Bank, the
Bank does not receive from the Fund a certified copy of a
-12-
13
resolution of the Board specifying the names of the persons to
whom the Bank shall deliver the Securities in the Custody Account
and to whom the cash in the Deposit Account shall be paid, the
Bank, at its election, may deliver such Securities and pay such
cash to a bank or trust company doing business in the State of
New York to be held and disposed of pursuant to the provisions of
this Agreement, or to Authorized Persons, or may continue to hold
such Securities and cash until a certified copy of one or more
resolutions as aforesaid is delivered to the Bank. Concurrently
with the delivery of such Securities, the Bank shall deliver to
the Company, or such other person as the Company shall instruct,
the records referred to in Section 14 hereof which are in the
possession or control of the Bank. The obligations of the
parties hereto regarding the use of reasonable care, indemnities
and payment of fees and expenses shall survive the termination of
this Agreement.
18. Notices. Any notice or other communication from the
Fund to the Bank is to be sent to the office of the Bank at 1211
Avenue of the Americas (33rd floor), New York, New York, 10036,
Attention Global Custody Division, or such other address as may
hereafter be given to the Company in accordance with the notice
provisions hereunder, and any notice from the Bank to the Fund is
to be mailed postage prepaid, addressed to the Fund at the
address appearing below, or as it may hereafter be changed on the
Bank's records in accordance with notice hereunder from the Fund.
19. Governing Law and Successors and Assigns. This
Agreement shall be governed by the law of the State of New York
and shall not be assignable by either party, but shall bind the
successors and assigns of the Fund and the Bank.
20. Headings. The headings of the paragraphs hereof are
included for convenience of reference only and do not form a part
of this Agreement.
21. Additional Portfolios. If the Fund shall issue shares
of more than one portfolio during the term hereof, the Bank
agrees that all securities and other assets of the Fund shall be
segregated by portfolio and all books and records, account values
or actions shall be maintained, held, made or taken, as the case
may be, separately for each portfolio. Other than as encompassed
by the preceding sentence, references in this Agreement to "the
Fund" are applicable either to the entire trust or to a
particular portfolio or portfolios, as the context may make
reasonable and appropriate. If the Fund has more than one
portfolio, Instructions shall designate the portfolio or
portfolios to which they apply.
-13-
14
22. Disclaimer. All parties hereto are expressly put on
notice of the Fund's Agreement and Declaration of Trust and all
amendments thereto, all of which are on file with the Secretary
of The Commonwealth of Massachusetts, and the limitation of
shareholder and trustee liability contained therein. This
Agreement has been executed by and on behalf of the Fund by its
representatives as such representatives and not individually, and
the obligations of the Fund hereunder are not binding upon any of
the Trustees, officers or shareholders of the Fund individually
but are binding upon only the assets and property of the Fund.
With respect to any claim by Bank for recovery of that portion of
the compensation (or any other liability of the Fund arising
hereunder) allocated to a particular portfolio, whether in
accordance with the express terms hereof or otherwise, the Bank
shall have recourse solely against the assets of that portfolio
to satisfy such claim and shall have no recourse against the
assets of any other portfolio for such purpose.
XXXXXX TOTAL RETURN FUND
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------
President
Address for Record: 000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
THE CHASE MANHATTAN BANK, N.A.
By: /s/ Xxxxxxxxx X. Xxx
--------------------------
Vice President
-14-
