AMENDMENT TO THE CUSTODIAN AGREEMENT
AMENDMENT entered into as of this 29th day of December, 1997 to the
Custodian Agreement between DRESDNER RCM EQUITY FUNDS, INC. (the "Fund"), on
behalf of the DRESDNER RCM EMERGING MARKETS FUND and XXXXX BROTHERS XXXXXXXX &
CO. (the "Custodian") dated as of 29th December 1997 (the "Agreement").
In consideration of the Custodian's offering subcustodial services to the
Fund in Russia, the Fund and the Custodian agree that the Agreement is hereby
amended as follows:
1. Section 4. SECURITIES ACCOUNT is amended by the addition of the
following phrase at the end of said Section:
"provided, however, that 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"); provided
further, that at such time as the laws and regulations in Russia with
respect to the registration of Russian securities are modified, the
Custodian shall use its best efforts to comply with such new regulations."
2. Section 4.1 (b) SECURITIES REPRESENTED BY BOOK-ENTRY, is amended by
the addition of the following at the end of said Section:
"However, 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 that are beyond
the Custodian's reasonable control, 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 Fund, the Fund 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.
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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 Fund 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 Funds of the occurrence of a Registrar Event promptly upon
becoming aware of such occurrence from the Subcustodian.
It shall be the sole responsibility of the Fund 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 Fund 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 4.2 (a) of this
Agreement, notwithstanding the absence of any such Registrar Contract and
without the Custodian being required to notify the Fund 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."
3. Section 4.2 (a) PURCHASES, is amended by the addition of the
following at the end of said Section:
"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
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authorize a Subcustodian to make payment for purchases of Russian Equities
upon receipt of the relevant Share Extract in respect of the Fund'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."
4. SECTION 4.2 (B) SALES- is amended by the addition of the following at
the end of said Section:
"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
Fund hereby expressly acknowledges that such market practice might require
delivery of securities prior to receipt of payment and that the Fund 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
absent negligence on the part of the Subcustodian or its employees in
effecting any such delivery."
5. SECTION 7 AUTHORITY TO APPOINT SUBCUSTODIANS AND AGENTS AND TO UTILIZE
SECURITIES DEPOSITORIES is amended by the addition of the following at the end
of the first paragraph of Section 7:
"With respect to Russia, the Fund 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 Fund 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
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nor the Subcustodian shall be responsible or liable to the Fund 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 the Fund through
any Russian Agent, the Custodian shall not be responsible to the Fund or
its shareholders unless and to the extent it in fact recovers from the
Subcustodian."
6. SECTION 10.2 LIABILITY OF THE CUSTODIAN WITH RESPECT TO PROPER
INSTRUCTIONS; EVIDENCE OF AUTHORITY; ETC. is amended by the insertion of the
following at the end of the first paragraph of said Section:
"It is also agreed that the Fund 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 Fund incurs in respect of property held or
sold in Russia or of payments or distributions received in respect thereof
in Russia. Accordingly, the Fund 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."
7. A new SECTION 15, RISK DISCLOSURE ACKNOWLEDGMENT, is added at the end
of the present Section 14.10:
"The Fund 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 Fund 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 Fund and in no way conflicts
with the Fund's constitutive documents, investment objective, duties to its
shareholders or with any regulatory requirements applicable to the Fund."
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Except as amended above, all the provisions of the Agreement as heretofore
in effect shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
first set forth above.
RCM EQUITY FUNDS, INC. XXXXX BROTHERS XXXXXXXX & CO.
on behalf of the DRESDNER
RCM EMERGING MARKETS
FUND
/s/ Xxxxxxx X. Xxxxxx /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------- -------------------------------------
Name: Xxxxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxxxxxx
Title: President Title: Partner
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