EXHIBIT (2)(j)(5)
DOMESTIC CUSTODY AGREEMENT
THE THAI FUND, INC.
UNITED STATES TRUST COMPANY OF NEW YORK
MAY 11, 1994
DOMESTIC CUSTODY AGREEMENT
THE THAI FUND, INC.
TABLE OF CONTENTS
SECTION/PARAGRAPH PAGE
----------------- ----
1. Appointment.......................................................... 1
2. Delivery of Documents................................................ 1
3. Definitions.......................................................... 2
4. Delivery and Registration of the Property............................ 3
5. Voting Rights........................................................ 3
6. Receipt and Disbursement of Money.................................... 4
7. Receipt of Securities................................................ 4
8. Use of Securities Depository or the Book-Entry System................ 5
9. Instructions Consistent With The Articles, etc....................... 6
10. Transactions Not Requiring Written Instructions...................... 7
11. Transactions Requiring Instructions.................................. 9
12. Purchase of Securities............................................... 10
13. Sales of Securities.................................................. 10
14. Records.............................................................. 11
15. Cooperation with Accountants......................................... 11
16. Confidentiality...................................................... 11
17. Equipment Failures................................................... 12
18. Right to Receive Advice.............................................. 12
19. Compliance with Governmental Rules and Regulations................... 12
20. Compensation......................................................... 13
21. Indemnification...................................................... 13
22. Responsibility of U.S. Trust......................................... 14
23. Collection........................................................... 14
24. Duration and Termination............................................. 15
25. Notices.............................................................. 15
26. Further Actions...................................................... 16
27. Amendments........................................................... 16
28. Miscellaneous........................................................ 16
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DOMESTIC CUSTODY AGREEMENT
THE THAI FUND, INC.
TABLE OF CONTENTS (CONTINUED)
SECTION/PARAGRAPH PAGE
----------------- ----
Signatures............................................................... 17
Attachment A -- Fee and Expenses
Attachment B -- Authorized Persons
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DOMESTIC CUSTODY AGREEMENT
THIS AGREEMENT is made as of May 11, 1994, by and between THE THAI FUND,
INC., a Maryland corporation (the "Fund"), and UNITED STATES TRUST COMPANY OF
NEW YORK, a New York State chartered bank and trust company ("U.S. Trust").
WITNESSETH:
WHEREAS, the Fund is registered as a closed-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, the Fund desires to retain U.S. Trust to serve as the Fund's
custodian for its assets held within the United States and U.S. Trust is willing
to furnish such services;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, it is agreed between the parties hereto as follows:
1. Appointment. The Fund hereby appoints U.S. Trust to act as custodian of
its portfolio securities, cash and other property held within the United States
on the terms set forth in this Agreement. U.S. Trust accepts such appointment
and agrees to furnish the services herein set forth in return for the
compensation as provided in Paragraph 20 of this Agreement.
2. Delivery of Documents. The Fund will promptly furnish to U.S. Trust such
copies, properly certified or authenticated, of contracts, documents and other
related information as U.S. Trust may request or require to properly discharge
its duties, including but not limited to the following:
(a) Resolutions of the Fund's Directors authorizing the appointment of U.S.
Trust as Custodian of the portfolio securities, cash and other property of the
Fund and approving this Agreement;
(b) Incumbency and signature certificates identifying and containing the
signatures of the Fund's officers and/or the persons authorized to sign Written
Instructions, as hereinafter defined, on behalf of the Fund;
(c) The Fund's Articles of Incorporation filed with the State Department of
Assessments and Taxation of the State of Maryland and all amendments thereto
(such Articles of
Incorporation, as currently in effect and as they shall from time to time be
amended, are herein called the "Articles");
(d) The Fund's By-Laws and all amendments thereto (such By-Laws, as
currently in effect and as they shall from time to time be amended, are herein
called the "By-Laws");
(e) Resolutions of the Fund's Directors and/or the Fund's stockholders
approving the Investment Advisory and Management Agreement between the Fund and
Xxxxxx Xxxxxxx Asset Management Inc., the Fund's investment adviser (the
"Advisory Agreement");
(f) The Advisory Agreement; and
(g) The Fund's Registration Statement on Form N-2 under the 1940 Act and
the Securities Act of 1933, as amended ("xxx 0000 Xxx"), as filed with, and
declared effective by, the Securities and Exchange Commission (the "SEC") and
all exhibits, amendments and supplements thereto, including any opinion of
counsel for the Fund with respect to the validity of the shares of common stock
(the "Shares") of the Fund and the status of such Shares under the 1933 Act as
registered with the SEC and under any other applicable federal law or
regulation.
3. Definitions.
(a) "Authorized Person". As used in this Agreement, the term "Authorized
Person" means the Fund's President, Vice-President, Treasurer and any other
person, whether or not any such person is an officer or employee of the Fund,
duly authorized by the Directors of the Fund to give Written Instructions on
behalf of the Fund and listed on Attachment B hereto, which may be amended from
time to time.
(b) "Book-Entry System". As used in this Agreement, the term "Book-Entry
System" means the Federal Reserve/Treasury book-entry system for United States
and federal agency securities, its successor or successors and its nominee or
nominees.
(c) "Property". The term "Property", as used in this Agreement, means:
(i) any and all securities, cash, and other property of the Fund which
the Fund may from time to time deposit, or cause to be deposited, with U.S.
Trust or which U.S. Trust may from time to time hold for the Fund;
(ii) all income in respect of any such securities or other property;
(iii) all proceeds of the sales of any of such securities or other
property; and
(iv) all proceeds of the sale of securities issued by the Fund, which
are received by U.S. Trust from time to time from or on behalf of the Fund.
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(d) "Securities Depository". As used in this Agreement the term "Securities
Depository" shall mean The Depository Trust Company, a clearing agency
registered with the SEC, or its successor or successors and its nominee or
nominees; and shall also mean any other registered clearing agency, its
successor or successors, specifically identified in a certified copy of a
resolution of the Fund's Directors approving deposits by U.S. Trust therein.
(e) "Written Instructions". Means instructions
(i) delivered by mail, tested telegram, cable, telex or facsimile
sending device, and received by U.S. Trust, signed by two Authorized
Persons or by persons reasonably believed by U.S. Trust to be Authorized
Persons; or
(ii) transmitted electronically through the U.S. Trust Asset
Management System or any similar electronic instruction system acceptable
to U.S. Trust.
4. Delivery and Registration of the Property. The Fund will deliver or
cause to be delivered to U.S. Trust all Property owned by it which is held
within the United States, including cash received for the issuance of its
Shares, at all times during the period of this Agreement, except for securities
and monies to be delivered to any subcustodian appointed pursuant to Paragraph 7
hereof. U.S. Trust will not be responsible for such securities and such monies
until actually received by U.S. Trust or by any subcustodian. All securities
delivered to U.S. Trust or to any such subcustodian (other than in bearer form)
shall be registered in the name of the Fund or in the name of a nominee of the
Fund or in the name of U.S. Trust or any nominee of U.S. Trust (with or without
indication of fiduciary status) or in the name of any subcustodian or any
nominee of such subcustodian appointed pursuant to Paragraph 7 hereof or shall
be properly endorsed and in form for transfer satisfactory to U.S. Trust.
5. Voting Rights. With respect to all securities owned by the Fund, however
registered, it is understood that the voting and other rights and powers of such
securities shall be exercised by the Fund. U.S. Trust's only duty shall be to
mail to the Fund any documents received, including proxy statements and offering
circulars, with any proxies for securities registered in a nominee name executed
by such nominee. Where warrants, options, tenders or other securities have fixed
expiration dates, the Fund understands that in order for U.S. Trust to act, U.S.
Trust must receive the Fund's instructions at its offices in New York City,
addressed as U.S. Trust may from time to time request, by no later than noon
(New York City time) at least one business day prior to the last scheduled date
to act with respect thereto (or such earlier date
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or time as permits the Fund a reasonable period of time in which to respond
after U.S. Trust notifies the Fund of such date or time). Absent U.S. Trust's
timely receipt of such instructions, such instruments will expire without
liability to U.S. Trust.
6. Receipt and Disbursement of Money.
(a) U.S. Trust shall open and maintain a custody account for the Fund (the
"Account") subject only to draft or order by U.S. Trust acting pursuant to the
terms of this Agreement, and shall hold in such Account, subject to the
provisions hereof, all cash received by it from or for the Fund. U.S. Trust
shall make payments of cash to, or for the account of, the Fund from such cash
only (i) for the purchase of securities for the Fund as provided in paragraph 12
hereof; (ii) upon receipt of Written Instructions, for the payment of dividends
or other distributions of shares, or for the payment of interest, taxes,
administration, distribution or advisory fees or expenses which are to be borne
by the Fund under the terms of this Agreement, any Advisory Agreement, or any
administration agreement of the Fund; (iii) upon receipt of Written Instructions
for payments in connection with the conversion, exchange or surrender of
securities owned or subscribed to by the Fund and held by or to be delivered to
U.S. Trust; (iv) to a subcustodian pursuant to Paragraph 7 hereof; or (v) upon
receipt of Written Instructions for other corporate purposes.
(b) U.S. Trust is hereby authorized to endorse and collect all checks,
drafts or other orders for the payment of money received as custodian for the
Fund.
7. Receipt of Securities.
(a) Except as provided by Paragraph 8 hereof, U.S. Trust shall hold all
securities and non-cash Property received by it for the Fund. All such
securities and non-cash Property are to be held or disposed of by U.S. Trust for
the Fund pursuant to the terms of this Agreement. In the absence of Written
Instructions accompanied by a certified resolution authorizing the specific
transaction by the Fund's Directors, U.S. Trust shall have no power or authority
to withdraw, deliver, assign, hypothecate, pledge or otherwise dispose of any
such securities and non-cash Property, except in accordance with the express
terms provided for in this Agreement. In connection with its duties under this
Paragraph 7, U.S. Trust may, at its own expense, enter into subcustodian
agreements with other U.S. banks or trust companies for the receipt of certain
securities and cash to be held by U.S. Trust for the account of the Fund
pursuant to this Agreement; provided that each such bank or trust company has an
aggregate capital, surplus and
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undivided profits, as shown by its last published report, of not less than
twenty million dollars ($20,000,000) and that such bank or trust company agrees
with U.S. Trust to comply with all relevant provisions of the 1940 Act and
applicable rules and regulations thereunder.
(b) Promptly after the close of business on each day, U.S. Trust shall
furnish the Fund with confirmations and a summary of all transfers to or from
the account of the Fund during said day. Where securities are transferred to the
account of the Fund established at a Securities Depository or the Book Entry
System pursuant to Paragraph 8 hereof, U.S. Trust shall also by book-entry or
otherwise identify as belonging to the Fund the quantity of securities that
belong to the Fund that are part of a fungible bulk of securities registered in
the name of U.S. Trust (or its nominee) or shown in U.S. Trust's account on the
books of a Securities Depository or the Book-Entry System. From time to time,
and at least once monthly, U.S. Trust shall furnish the Fund with a detailed
statement of the Property held for the Fund under this Agreement.
8. Use of Securities Depository or the Book-Entry System. The Fund
authorizes U.S. Trust, on a continuous and ongoing basis until instructed to the
contrary by Written Instructions actually received by U.S. Trust (i) to deposit
in a Securities Depository or the Book-Entry System all securities of the Fund
eligible for deposit therein and (ii) to utilize a Securities Depository or the
Book-Entry System to the extent possible in connection with the performance of
its duties hereunder, including without limitation, settlements of purchases and
sales of securities by the Fund, and deliveries and returns of securities
collateral in connection with borrowings. Without limiting the generality of
such use, it is agreed that the following provisions shall apply thereto:
(a) Securities and any cash of the Fund deposited in a Securities
Depository or the Book-Entry System will at all times be segregated from any
assets and cash controlled by U.S. Trust in other than a fiduciary or custodian
capacity but may be commingled with other assets held in such capacities. U.S.
Trust will effect payment for securities and receive and deliver securities in
accordance with accepted industry practices in the place where the transaction
is settled, unless the Fund has given U.S. Trust Written Instructions to the
contrary.
(b) All Books and records maintained by U.S. Trust which relate to the
Fund's participation in a Securities Depository or the Book-Entry System will at
all times during U.S. Trust's regular business hours be open to the inspection
of the Fund's duly authorized employees
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or agents, and the Fund will be furnished with all information in respect of the
services rendered to it as it may require.
9. Instructions Consistent With The Articles, etc. U.S. Trust may assume
that any Written Instructions received hereunder are not in any way inconsistent
with any provision of the Articles or By-Laws of the Fund or any vote or
resolution of the Fund's Directors, or any committee thereof. U.S. Trust shall
be entitled to rely upon any Written Instructions actually received by U.S.
Trust pursuant to this Agreement. The Fund agrees that U.S. Trust shall incur no
liability in acting in good faith upon Written Instructions given to U.S. Trust.
In accord with instructions from the Fund, as required by accepted industry
practice or as U.S. Trust may elect in effecting the execution of Fund
instructions, any advance of cash or other Property made by U.S. Trust, arising
from the purchase, sale, redemption, transfer or other disposition of Property
of the Fund, or in connection with the disbursement of funds to any party, or in
payment of fees, expenses, claims or liabilities owed to U.S. Trust by the Fund
or to any other party which has secured judgment in a court of law against the
Fund, which creates an overdraft in the accounts or over-delivery of Property
shall be deemed a loan by U.S. Trust to the Fund, payable on demand, bearing
interest at such rate as is customarily charged by U.S. Trust for similar loans.
The Fund agrees that test arrangements, authentication methods or other security
devices to be used with respect to instructions which the Fund may give by
telephone, telex, TWX, facsimile transmission, bank wire or through an
electronic instruction system, shall be processed in accordance with terms and
conditions for the use of such arrangements, methods or devices as U.S. Trust
may put into effect and modify from time to time. The Fund shall safeguard any
test keys, identification codes or other security devices which U.S. Trust makes
available to the Fund and agrees that the Fund shall be responsible for any
loss, liability or damage incurred by U.S. Trust or by the Fund as a result of
U.S. Trust's acting in accordance with instructions from any unauthorized person
using the proper security device, unless such loss, liability or damage was
incurred as a result of U.S. Trust's negligence or willful misconduct. U.S.
Trust may electronically record, but shall not be obligated to so record, any
instructions given by telephone and any other telephone discussions with respect
to the Account. In the event that the Fund uses U.S. Trust's Asset Management
System ("AMS"), the Fund agrees that U.S. Trust will not be responsible for the
consequences of the failure of the AMS to perform for any reason beyond the
reasonable control of U.S. Trust, or the failure of any communications carrier,
utility or
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communications network. In the event the AMS is inoperable, the Fund agrees that
it will accept the communication of transaction instructions by telephone,
facsimile transmission on equipment compatible to U.S. Trust's facsimile
receiving equipment or by letter, at no additional charge to the Fund.
10. Transactions Not Requiring Written Instructions. U.S. Trust is
authorized and (unless expressly indicated to the contrary) instructed to take
the following actions without Written Instructions:
(a) Collection of Income and Other Payments. U.S. Trust shall:
(i) collect and receive for the account of the Fund, all income and
other payments and distributions, including (without limitation) stock
dividends, rights, warrants and similar items included or to be included in
the Property of the Fund, and promptly advise the Fund of such receipt and
shall credit such income, as collected, to the Fund. From time to time,
U.S. Trust may elect, but shall not be so obligated, to credit the Account
with interest, dividends or principal payments on payable or contractual
settlement dates, in anticipation of receiving same from a payor, central
depository, broker or other agent employed by the Fund or U.S. Trust. Any
such crediting and posting shall be at the Fund's sole risk, and U.S. Trust
shall be authorized to reverse any such advance posting in the event U.S.
Trust does not receive good funds from any such payor, central depository,
broker or agent of the Fund.
(ii) with respect to securities of foreign issuers held in custody by
U.S. Trust hereunder, if any, effect collection of dividends, interest and
other income, and notify the Fund of any call for redemption, offer of
exchange, right of subscription, reorganization, or other proceedings
affecting such securities, or any default in payments due thereon. It is
understood, however, that U.S. Trust shall be under no responsibility for
any failure or delay in effecting such collections or giving such notice
with respect to securities of foreign issuers, regardless of whether or not
the relevant information is published in any financial service available to
U.S. Trust, unless such failure or delay is due to its negligence or
willful misconduct; provided that this sub-paragraph (ii) shall not be
construed as creating any such responsibility with respect to securities of
non-foreign issuers. Collections of income in foreign currency are, to the
extent possible, to be converted into United States Dollars, unless the
Fund instructs U.S. Trust otherwise in
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writing, and in effecting such conversion U.S. Trust may use such methods
or agencies as it may see fit, including the facilities of its own foreign
division, at customary rates. All risk and expense incident to such
collection and conversion is for the account of the Fund and U.S. Trust
shall have no responsibility for fluctuations in exchange rates affecting
any such conversion.
(iii) endorse and deposit for collection in the name of the Fund,
checks, drafts, or other orders for the payment of money on the same day as
received.
(iv) receive and hold for the account of the Fund all securities
received by the Fund as a result of a stock dividend, share split-up or
reorganization, recapitalization, readjustment or other rearrangement or
distribution of rights or similar securities issued with respect to any
portfolio securities of the Fund held by U.S. Trust hereunder.
(v) present for payment and collect the amount payable upon all
securities which may mature or be called, redeemed or retired, or otherwise
become payable on the date such securities become payable.
(vi) take any action which may be necessary and proper in connection
with the collection and receipt of Fund income and other payments and the
endorsement for collection of checks, drafts and other negotiable
instruments.
(vii) with respect to domestic securities, exchange securities in
temporary form for securities in definitive form, effect an exchange of the
shares where the par value of stock is changed, and surrender securities at
maturity or when advised of earlier call for redemption against payment
therefor in accordance with accepted industry practice. The Fund
understands that U.S. Trust subscribes to one or more nationally recognized
services that provide information with respect to calls for redemption of
bonds or other corporate actions. U.S. Trust shall not be liable for
failure to redeem any called bond or to take other action if notice of such
call or action was not provided by any service to which it subscribes,
provided that U.S. Trust shall have acted in good faith without negligence
and in accordance with "street practice" (as is customary in industry).
U.S. Trust shall have no duty to notify the Fund of any rights, duties,
limitations, conditions or other information set forth in any security
(including mandatory or optional put, call and similar provisions), but
U.S. Trust shall forward to the Fund any notices or other documents
subsequently received with regard to any such security. When fractional
8
shares of stock of a declaring corporation are received as a stock
distribution, unless specifically instructed to the contrary in writing,
U.S. Trust is authorized to sell the fraction received and credit the
Fund's account. Unless specifically instructed to the contrary in writing,
U.S. Trust is authorized to exchange securities in bearer form for
securities in registered form. If any Property registered in the name of a
nominee of U.S. Trust is called for partial redemption by the issuer of
such Property, U.S. Trust is authorized to allot the called portion to the
respective beneficial holders of the Property in such manner as is deemed
by U.S. Trust to be fair and equitable in its sole discretion.
(b) Miscellaneous Transactions. U.S. Trust is authorized to deliver or
cause to be delivered Property against payment or other consideration or written
receipt therefor in the following cases:
(i) for examination by a broker selling for the account of the Fund in
accordance with street delivery custom;
(ii) for the exchange of interim receipts or temporary securities for
definitive securities; and
(iii) for transfer of securities into the name of the Fund or U.S.
Trust or a nominee of either, or for exchange of securities for a different
number of bonds, certificates, or other evidence, representing the same
aggregate face amount or number of units bearing the same interest rate,
maturity date and call provisions, if any; provided that, in any such case,
the new securities are to be delivered to U.S. Trust.
11. Transactions Requiring Instructions. Upon receipt of Written
Instructions and not otherwise, U.S. Trust, directly or through the use of a
Securities Depository or the Book-Entry System, shall:
(a) Execute and deliver to such persons as may be designated in such
Written Instructions, proxies, consents, authorizations, and any other
instruments whereby the authority of the Fund as owner of any securities may be
exercised;
(b) Deliver any securities held for the Fund against receipt of other
securities or cash issued or paid in connection with the liquidation,
reorganization, refinancing, merger, consolidation or recapitalization of any
corporation, or the exercise of any conversion privilege;
(c) Deliver any securities held for the Fund to any protective committee,
reorganization committee or other person in connection with the reorganization,
refinancing,
9
merger, consolidation, recapitalization or sale of assets of any corporation,
against receipt of such certificates of deposit, interim receipts or other
instruments or documents as may be issued to it to evidence such delivery;
(d) Make such transfers or exchanges of the assets of the Fund and take
such other steps as shall be stated in said instructions to be for the purpose
of effectuating any duly authorized plan of liquidation, reorganization, merger,
consolidation or recapitalization of the Fund;
(e) Release securities belonging to the Fund to any bank or trust company
for the purpose of pledge or hypothecation to secure any loan incurred by the
Fund; provided, however, that securities shall be released only upon payment to
U.S. Trust of the monies borrowed, except that in cases where additional
collateral is required to secure a borrowing already made, subject to proper
prior authorization, further securities may be released for that purpose; and
pay such loan upon redelivery to it of the securities pledged or hypothecated
therefor and upon surrender of the note or notes evidencing the loan;
(f) Deliver any securities held for the Fund upon the exercise of a covered
call option written by the Fund on such securities; and
(g) Deliver securities held for the Fund pursuant to separate security
lending agreements concerning the lending of the Fund's securities into which
the Fund may enter, from time to time.
12. Purchase of Securities. Promptly after each purchase of securities by
the Investment Adviser (or any sub-adviser), the Fund shall deliver to U.S.
Trust (as Custodian) Written Instructions specifying with respect to each such
purchase: (a) the name of the issuer and the title of the securities, (b) the
number of shares or the principal amount purchased and accrued interest, if any,
(c) the dates of purchase and settlement, (d) the purchase price per unit, (e)
the total amount payable upon such purchase and (f) the name of the person from
whom or the broker through whom the purchase was made. U.S. Trust shall upon
receipt of securities purchased by or for the Fund pay out of the monies held
for the account of the Fund the total amount payable to the person from whom or
the broker through whom the purchase was made, provided that the same conforms
to the total amount payable as set forth in such Written Instructions.
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13. Sales of Securities. Promptly after each sale of securities by the
Investment Adviser, the Fund shall deliver to U.S. Trust (as Custodian) Written
Instructions, specifying with respect to each such sale: (a) the name of the
issuer and the title of the security, (b) the number of shares or principal
amount sold, and accrued interest, if any, (c) the date of sale, (d) the sale
price per unit, (e) the total amount payable to the Fund upon such sale and (f)
the name of the broker through whom or the person to whom the sale was made.
U.S. Trust shall deliver the securities upon receipt of the total amount payable
to the Fund upon such sale, provided that the same conforms to the total amount
payable as set forth in such Written Instructions. Subject to the foregoing,
U.S. Trust may accept payment in such form as shall be satisfactory to it, and
may deliver securities and arrange for payment in accordance with the customs
prevailing among dealers in securities.
14. Records. The books and records pertaining to the Fund which are in the
possession of U.S. Trust shall be the property of the Fund. The Fund, or the
Fund's authorized representatives, shall have access to such books and records
at all times during U.S. Trust's normal business hours, and such books and
records shall be surrendered to the Fund promptly upon request. Upon reasonable
request of the Fund, copies of any such books and records shall be provided by
U.S. Trust to the Fund or the Fund's authorized representative at the Fund's
expense.
15. Cooperation with Accountants. U.S. Trust shall cooperate with the
Fund's independent certified public accountants and shall take all reasonable
action in the performance of its obligations under this Agreement to assure that
the necessary information is made available to such accountants for the
expression of their unqualified opinion, including but not limited to the
opinion included in the Fund's semiannual report on Form N-SAR.
16. Confidentiality. U.S. Trust agrees on behalf of itself and its
employees to treat confidentially and as the proprietary information of the Fund
all records and other information relative to the Fund and its prior, present or
potential shareholders and relative to the Investment Adviser and its prior,
present or potential customers, and not to use such records and information for
any purpose other than performance of its responsibilities and duties hereunder,
except after prior notification to and approval in writing by the Fund, which
approval shall not be unreasonably withheld and may not be withheld where U.S.
Trust may be exposed to civil or criminal contempt proceedings for failure to
comply, when requested to divulge such
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information by duly constituted authorities, or when so requested by the Fund.
Nothing contained herein, however, shall prohibit U.S. Trust from advertising or
soliciting the public generally with respect to other products or services,
regardless of whether such advertisement or solicitation may include prior,
present or potential shareholders of the Fund.
17. Equipment Failures. In the event of equipment failures beyond U.S.
Trust's control, U.S. Trust shall, at no additional expense to the Fund, take
reasonable steps to minimize service interruptions but shall not have liability
with respect thereto. U.S. Trust shall enter into and shall maintain in effect
with appropriate parties one or more agreements making reasonable provision for
back up emergency use of electronic data processing equipment to the extent
appropriate equipment is available.
18. Right to Receive Advice.
(a) Advice of Fund. If U.S. Trust shall be in doubt as to any action to be
taken or omitted by it, it may request, and shall receive, from the Fund
clarification or advice.
(b) Advice of Counsel. If U.S. Trust shall be in doubt as to any question
of law involved in any action to be taken or omitted by U.S. Trust, it may
request advice at its own cost from counsel of its own choosing (who may be
counsel for the Fund or U.S. Trust, at the option of U.S. Trust).
(c) Conflicting Advice. In case of conflict between directions or advice
received by U.S. Trust pursuant to subparagraph (a) of this paragraph and advice
received by U.S. Trust pursuant to subparagraph (b) of this paragraph, U.S.
Trust shall be entitled to rely on and follow the advice received pursuant to
the latter provision alone.
(d) Protection of U.S. Trust. U.S. Trust shall be protected in any action
or inaction which it takes or omits to take in reliance on any directions or
advice received pursuant to subparagraph (a) of this section which U.S. Trust,
after receipt of any such directions or advice, in good faith believes to be
consistent with such directions or advice. However, nothing in this paragraph
shall be construed as imposing upon U.S. Trust any obligation (i) to seek such
directions or advice, or (ii) to act in accordance with such directions or
advice when received, unless, under the terms of another provision of this
Agreement, the same is a condition to U.S. Trust's properly taking or omitting
to take such action. Nothing in this subparagraph shall excuse U.S. Trust when
an action or omission on the part of U.S. Trust constitutes willful
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misfeasance, bad faith, gross negligence or reckless disregard by U.S. Trust of
its duties under this Agreement.
19. Compliance with Governmental Rules and Regulations. The Fund assumes
full responsibility for insuring that the contents of its registration statement
on Form N-2, as filed with, and declared effective by, the SEC, and all
amendments thereto, comply with all applicable requirements of the 1933 Act, the
1940 Act, and any laws, rules and regulations of governmental authorities having
jurisdiction.
20. Compensation. As compensation for the services described within this
Agreement and rendered by U.S. Trust during the term of this Agreement, the Fund
will pay to U.S. Trust, in addition to reimbursement of its out-of-pocket
expenses, monthly fees as outlined in Attachment A.
21. Indemnification. The Fund, as sole owner of the Property, agrees to
indemnify and hold harmless U.S. Trust and its nominees from all taxes, charges,
expenses, assessments, claims, and liabilities (including, without limitation,
liabilities arising under the 1933 Act, the Securities Exchange Act of 1934, the
1940 Act, and any state and foreign securities and blue sky laws, all as amended
from time to time) and expenses, including (without limitation) attorney's fees
and disbursements, arising directly or indirectly (a) from the fact that
securities included in the Property are registered in the name of any such
nominee or (b) without limiting the generality of the foregoing clause (a) from
any action or thing which U.S. Trust takes or does or omits to take or do (i) at
the request or on the direction of or in reliance on the advice of the Fund
given in accordance with the terms of this Agreement, or (ii) upon Written
Instructions; provided, that neither U.S. Trust nor any of its nominees or
subcustodians shall be indemnified against any liability to the Fund or to its
Shareholders (or any expenses incident to such liability) arising out of (x)
U.S. Trust's or such nominee's or subcustodian's own willful misfeasance, bad
faith, gross negligence or reckless disregard of its duties under this Agreement
or any agreement between U.S. Trust and any nominee or subcustodian or (y) U.S.
Trust's own or its subcustodian's negligent failure to perform its duties under
this Agreement. In the event of any advance of cash for any purpose made by U.S.
Trust resulting from orders or Written Instructions of the Fund, or in the event
that U.S. Trust or its nominee or subcustodian shall incur or be assessed any
taxes, charges, expenses, assessments, claims or liabilities in connection with
the performance of this Agreement, except such as may arise from its or its
nominee's or subcustodian's own negligent
13
action, negligent failure to act, willful misconduct, or reckless disregard of
its duties under this Agreement or any agreement between U.S. Trust and any
nominee or subcustodian, the Fund shall promptly reimburse U.S. Trust for such
advance of cash or such taxes, charges, expenses, assessments, claims or
liabilities.
22. Responsibility of U.S. Trust. U.S. Trust shall be under no duty to take
any action on behalf of the Fund except as specifically set forth herein or as
may be specifically agreed to by U.S. Trust in writing. In the performance of
its duties hereunder, U.S. Trust shall be obligated to exercise care and
diligence and to act in good faith and to use its best efforts within reasonable
limits to insure the accuracy of all services performed under this Agreement.
U.S. Trust shall be responsible for its own negligent failure or that of any
subcustodian it shall appoint to perform its duties under this Agreement but to
the extent that duties, obligations and responsibilities are not expressly set
forth in this Agreement, U.S. Trust shall not be liable for any act or omission
which does not constitute willful misfeasance, bad faith, or gross negligence on
the part of U.S. Trust or reckless disregard of such duties, obligations and
responsibilities. Without limiting the generality of the foregoing or of any
other provision of this Agreement, U.S. Trust in connection with its duties
under this Agreement shall not be under any duty or obligation to inquire into
and shall not be liable for or in respect of (a) the validity or invalidity or
authority or lack thereof of any advice, direction, notice or other instrument
which conforms to the applicable requirements of this Agreement, if any, and
which U.S. Trust believes to be genuine, (b) the validity of the issue of any
securities purchased or sold by the Fund, the legality of the purchase or sale
thereof or the propriety of the amount paid or received therefor, (c) the
legality of the issue or sale of any Shares, or the sufficiency of the amount to
be received therefor, (d) the legality of the redemption of any Shares, or the
propriety of the amount to be paid therefor, (e) the legality of the declaration
or payment of any dividend or distribution on Shares, or (f) delays or errors or
loss of data occurring by reason of circumstances beyond U.S. Trust's control,
including acts of civil or military authority, national emergencies, labor
difficulties, fire, mechanical breakdown (except as provided in Paragraph 17),
flood or catastrophe, acts of God, insurrection, war, riots, or failure of the
mail, transportation systems, communication systems or power supply.
23. Collection. All collections of monies or other property in respect, or
which are to become part, of the Property (but not the safekeeping thereof upon
receipt by U.S. Trust) shall be
14
at the sole risk of the Fund. In any case in which U.S. Trust does not receive
any payment due the Fund within a reasonable time after U.S. Trust has made
proper demands for the same, it shall so notify the Fund in writing, including
copies of all demand letters, any written responses thereto, and memoranda of
all oral responses thereto, and to telephonic demands, and await instructions
from the Fund. U.S. Trust shall not be obliged to take legal action for
collection unless and until reasonably indemnified to its satisfaction. U.S.
Trust shall also notify the Fund as soon as reasonably practicable whenever
income due on securities is not collected in due course.
24. Duration and Termination. This Agreement shall be effective as of the
date hereof and shall continue until termination by the Fund or by U.S. Trust on
90 day's written notice. Upon any termination of this Agreement, pending
appointment of a successor to U.S. Trust or a vote of the Shareholders of the
Fund to dissolve or to function without a custodian of its cash, securities or
other property, U.S. Trust shall not deliver cash, securities or other property
of the Fund to the Fund, but may deliver them to a bank or trust company of its
own selection, having aggregate capital, surplus and undivided profits, as shown
by its last published report of not less than twenty million dollars
($20,000,000) as a successor custodian for the Fund to be held under terms
similar to those of this Agreement, provided, however, that U.S. Trust shall not
be required to make any such delivery or payment until full payment shall have
been made by the Fund of all liabilities constituting a charge on or against the
properties then held by U.S. Trust or on or against U.S. Trust and until full
payment shall have been made to U.S. Trust of all of its fees, compensation,
costs and expenses, subject to the provisions of Paragraph 20 of this Agreement.
25. Notices. All notices and other communications (collectively referred to
as "Notice" or "Notices" in this paragraph) hereunder shall be in writing or by
confirm in telegram, cable, telex, or facsimile sending device. Notices shall be
addressed (a) if to U.S. Trust, at U.S. Trust's address, 000 X. 00xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx, 00000; (b) if to the Fund, at the address of the Fund, 0000
Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000; or (c) if to neither of the
foregoing, at such other address as shall have been notified to the sender of
any such Notice or other communication. If the location of the sender of a
Notice and the address of the addressee thereof are, at the time of sending,
more than 100 miles apart, the Notice may be sent by first-class mail, in which
case it shall be deemed to have been given three days after it is
15
sent, or if sent by confirming telegram, cable, telex or facsimile sending
device, it shall be deemed to have been given immediately, and, if the location
of the sender of a Notice and the address of the addressee thereof are, at the
time of sending, not more than 100 miles apart, the Notice may be sent by
first-class mail, in which case it shall be deemed to have been given two days
after it is sent, of if sent by messenger, it shall be deemed to have been given
on the day it is delivered, or if sent by confirming telegram, cable, telex or
facsimile sending device, it shall be deemed to have been given immediately. All
postage, cable, telegram, telex and facsimile sending device charges arising
from the sending of a Notice hereunder shall be paid by the sender.
26. Further Actions. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the purposes
hereof.
27. Amendments. This Agreement or any part hereof may be changed or waived
only by an instrument in writing signed by the party against which enforcement
of such change or waiver is sought.
28. Miscellaneous. This Agreement embodies the entire Agreement and
understanding between the parties hereto, and supersedes all prior agreements
and understandings relating to the parties hereto. The captions in this
Agreement are included for convenience of reference only and in no way define or
delimit any of the provisions hereof or otherwise affect their construction or
effect. This Agreement shall be deemed to be a contract made in New York and
governed by New York law. If any provision of this Agreement shall be held or
made invalid by a court decision, statute, rule or otherwise, the remainder of
this Agreement shall not be affected thereby. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors.
16
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers designated below as of the day and year first above
written.
THE THAI FUND, INC.
ATTEST: /s/ Xxxxxxx X. Xxxxx BY: /s/ Xxxxxx X. Xxxxx
----------------------------- ------------------------------------
NAME: Xxxxxx X. Xxxxx
TITLE: President
UNITED STATES TRUST COMPANY OF NEW YORK
ATTEST: /s/ Xxxx X. Xxxxxx BY: /s/ Xxxxx X. Xxxxxxxxxx
----------------------------- ------------------------------------
NAME: XXXXX X. XXXXXXXXXX
TITLE: SENIOR VICE PRESIDENT
U.S. TRUST CO. OF NEW YORK
000 XXXXXXXX
XXX XXXX, XX 00000
17
ADMINISTRATION AGREEMENT
DATED FEBRUARY 17, 1992
DOMESTIC CUSTODY AGREEMENT
DATED MAY 11, 1994 THE THAI FUND, INC.
ATTACHMENT A
FEES AND EXPENSES
The Fund will be billed monthly for fees and out-of-pocket expenses under
its Domestic Custody Agreement and Administration Agreement with U.S. Trust.
Billings for fees and expenses will be due to U.S. Trust upon receipt and are
based on the following schedules:
ADMINISTRATION FEES
For the services provided pursuant to the U.S. Trust Administration
Agreement, the Fund shall pay to U.S. Trust an annual fee of $100,000 plus .05%
per annum of the average weekly net assets of the Fund, computed weekly and
payable monthly.
DOMESTIC CUSTODY SAFEKEEPING FEES
For the services rendered pursuant to the Domestic Custody Agreement, the
Fund shall pay to U.S. Trust 0.01% of the average daily net assets of the Fund,
computed and payable monthly
DOMESTIC CUSTODY TRANSACTION FEES
$11.00 per DTC, PTC, or Federal Reserve Book Entry transaction
$ 5.50 per GNMA transaction
$40.00 per physical transaction
$40.00 per future or option wire
$35.00 per Euroclear transaction
$ 8.00 per outgoing wire transfer
BALANCE CREDITS ON DOMESTIC CUSTODY
Credit on overnight cash balances, less required reserves, will be paid to
the funds at a rate equal to 75% of the 90 day Treasury xxxx rate.
OUT-OF-POCKET EXPENSES
Out-of-pocket expenses including but not limited to the cost of forms,
statements and confirms, telecommunications facilities, microfiche, proxy
processing, security pricing services (including backup pricing services) the
preparation of Fund Board materials, and mailings will be billed to the Fund on
a monthly basis.
A-1
DOMESTIC CUSTODY AGREEMENT
THE THAI FUND, INC.
MAY 11, 1994
ATTACHMENT B
AUTHORIZED PERSONS
ATTACHMENT B
FEES AND EXPENSES
Xxxxxx Xxxxxxx Institutional Fund Trust
Xxxxxx Xxxxxxx Institutional Fund, Inc.
The Universal Institutional Funds, Inc.
Xxxxxx Xxxxxxx Strategic Adviser Fund, Inc.
The Latin American Discovery Fund, Inc.
The Malaysia Fund, Inc.
Xxxxxx Xxxxxxx Asia-Pacific Fund, Inc.
Xxxxxx Xxxxxxx Emerging Markets Fund, Inc.
Xxxxxx Xxxxxxx India Investment Fund, Inc.
The Thai Fund, Inc.
The Turkish Investment Fund, Inc.
Xxxxxx Xxxxxxx Eastern Europe Fund, Inc.
Xxxxxx Xxxxxxx Emerging Markets Debt Fund, Inc.
Xxxxxx Xxxxxxx Global Opportunity Bond Fund, Inc.
Xxxxxx Xxxxxxx High Yield Fund, Inc.
Custody Fee Schedule (effective Oct. 1, 2002)
Asset Charge Transaction
Country (basis point) (USD $)
------- --------------- -----------
Argentina 25 83
Australia 4 38
Austria 8 50
Xxxxxxxxxx 00 000
Xxxxxxx 5 00
Xxxxxxx 00 00
Xxxxxxxx 00 00
Xxxxxx 15 58
Bulgaria 35 75
Canada 3.50 23
Xxxxx 00.00 00
Xxxxx (Xxxxxxxx) 25 70
Colombia 42.50 000
Xxxxxx 00 000
Xxxxx Xxxxxxxx 33.50 00
Xxxxxxx 0 00
Xxxxxxx 45 90
ATTACHMENT B
FEES AND EXPENSES
Asset Charge Transaction
Country (basis point) (USD $)
------- --------------- -----------
Egypt 40 75
Estonia 35 75
Euroclear 1.75 23
Euroclear (for SICAV
Liquidity Fund) 1.50 23
Euro CDs 1.75 00
Xxxxxxx 0 00
Xxxxxx 2.5 47
Germany 1.75 27
Xxxxx 00 00
Xxxxxx 00 00
Xxxx Xxxx 3 00
Xxxxxxx 00 000
Xxxxx (NSDL) 16 100
Xxxxx (Xxxxxxxx) 00 00
Xxxxx (HSBC) 35 45
Indonesia 10 75
Ireland 7 00
Xxxxxx 00 00
Xxxxx 4.25 50
Xxxxx Xxxxx 0 000
Xxxxxxx 00 00
Xxxxx 1.60 23
Jordan 45 150
Xxxxx 00 00
Xxxxx 00 00
Xxxxxxxx 7.50 00
Xxxxxxxxx 00 000
Xxxxxx 5.50 00
Xxxxxxx 00 000
Xxxxxxxxxxx 3 35
New Zealand 2 47
Nigeria 60 175
Xxxxxx 0 00
Xxxxxxxx 00 000
Xxxx 45 00
Xxxxxxxxxxx 00 00
Xxxxxx 37.50 00
Xxxxxxxx 00 00
Xxxxxx 22 85
ATTACHMENT B
FEES AND EXPENSES
Asset Charge Transaction
Country (basis point) (USD $)
------- --------------- -----------
Singapore 4 63
Xxxxxxxx 00 000
Xxxxxxxx 35 75
South Africa 4.50 30
Spain 6.50 50
Xxx Xxxxx 00 000
Xxxxxx 5 45
Switzerland 4 53
Xxxxxx 00 00
Xxxxxxxx 00 00
Xxxxxx 12.50 73
United Kingdom 1.50 25
United States* Tiered schedule 8
Uruguay 50 100
Xxxxxxxxx 00 000
Xxxxxx 00 00
Xxxxxxxx 00 00
* See next page for U.S. asset charge tiering
ATTACHMENT B
FEES AND EXPENSES
* Asset charge for United States assets will be applied to the aggregate
level of Xxxxxx Xxxxxxx assets with JPMorgan per the following schedule:
From: To: Asset Charge (basis Point
----- --- -------------------------
$0 $15 billion 0.65
$15 billion $25 billion 0.40
Over $25 billion 0.15
Miscellaneous Fees & Out of Pocket Expenses:
Cash Movements $8 for USD settlements
$15 for non USD settlements
Registration/Transfer fees, Stamp taxes/duties and any other out of pocket costs
will be recharged to the Funds at cost, where incurred by JPMorgan.
Earnings Credits:
Credits will be paid to the Funds at a rate based on the 90-Day Treasury xxxx
rate less 1% on daily positive balances. All interest is paid after a 10%
Federal Reserve requirement is deducted from the balances. The credits earned
are cumulative throughout JPMorgan Chase Bank's fiscal year. At the beginning of
the new fiscal year, earnings credit balances are reset to zero.
Overdraft Rates:
Overdraft charges paid by the Funds will be calculated using the Federal Funds
rate plus 2% on daily negative balances.
