Exhibit j.
Custodian Agreement
This Agreement between PIMCO Corporate Opportunity Fund, a business trust
organized and existing under the laws of Massachusetts (the "Fund"), and State
Street Bank and Trust Company, a Massachusetts trust company (the "Custodian"),
Witnesseth: that in consideration of the mutual covenants and agreements
hereinafter contained, the parties hereto agree as follows:
Section 1. Employment of Custodian and Property to be Held by It
The Fund hereby employs the Custodian as the custodian of its assets consisting
of securities that the Fund desires to be held in places within the United
States ("domestic securities"). The Fund agrees to deliver to the Custodian all
securities and cash owned by it, and all payments of income, payments of
principal or capital distributions received by it with respect to all securities
owned by it from time to time, and the cash consideration received by it for
such new or treasury shares of beneficial interest of the Fund ("Shares") as may
be issued or sold from time to time. The Custodian shall not be responsible for
any property of the Fund which is not received by it or which is delivered out
in accordance with Proper Instructions including, without limitation, Fund
property (i) held by brokers, private bankers or other entities on behalf of the
Fund (each a "Local Agent"), (ii) held by Special Sub-Custodians (as such term
is defined in Section * hereof), (iii) held by entities which have advanced
monies to or on behalf of the Fund and which have received Fund property as
security for such advance(s) (each a "Pledgee"), or (iv) delivered or otherwise
removed from the custody of the Custodian pursuant to Special Instructions (as
such term is defined in Section 3 hereof). With respect to uncertificated shares
(the "Underlying Shares") of registered "investment companies" (as defined in
Section 3(a)(1) of the Investment Company Act of 1940, as amended (the "1940
Act")), whether in the same "group of investment companies" (as defined in
Section 12(d)(1)(G)(ii) of the ▇▇▇▇ ▇▇▇) or otherwise, including pursuant to
Section 12(d)(1)(F) of the 1940 Act (hereinafter sometimes referred to as the
"Underlying Portfolios") the holding of confirmation statements that identify
the shares as being recorded in the Custodian's name on behalf of the Fund will
be deemed custody for purposes hereof.
Upon receipt of Proper Instructions, the Custodian shall on behalf of the Fund
from time to time employ one or more sub-custodians located in the United
States, but only in accordance with an applicable vote by the Board of Trustees
of the Fund (the "Board") and provided that the Custodian shall have no more or
less responsibility or liability to any Fund on account of any actions or
omissions of any sub-custodian so employed than any such sub-custodian has to
the Custodian.
Section 2. Duties of the Custodian with Respect to Property of the Fund Held by
the Custodian
i
Section 2.1 Holding Securities. The Custodian shall hold and physically
segregate for the account of the Fund all non-cash property, to be held by it in
the United States, including all domestic securities owned by the Fund other
than (a) securities which are maintained pursuant to Section 2.8 in a clearing
agency which acts as a securities depository or in a book-entry system
authorized by the U.S. Department of the Treasury (each, a "U.S. Securities
System") and (b) Underlying Shares owned by each Fund which are maintained
pursuant to Section 2.10 hereof in an account with State Street Bank and Trust
Company or such other entity which may from time to time act as a transfer agent
for the Underlying Portfolios and with respect to which the Custodian is
provided with Proper Instructions (the "Underlying Transfer Agent").
Section 2.2 Delivery of Securities. The Custodian shall release and deliver
domestic securities owned by the Fund held by the Custodian or in a U.S.
Securities System account of the Custodian or in an account at the Underlying
Transfer Agent, only upon receipt of Proper Instructions, which may be
continuing instructions when deemed appropriate by the parties, and only in the
following cases:
1) Upon sale of such securities for the account of the Fund and receipt
of payment therefor;
2) Upon the receipt of payment in connection with any repurchase
agreement related to such securities entered into by the Fund;
3) In the case of a sale effected through a U.S. Securities System, in
accordance with the provisions of Section 2.8 hereof;
4) To the depository agent in connection with tender or other similar
offers for securities of the Fund;
5) To the issuer thereof or its agent when such securities are called,
redeemed, retired or otherwise become payable; provided that, in any
such case, the cash or other consideration is to be delivered to the
Custodian;
6) To the issuer thereof, or its agent, for transfer into the name of the
Fund or into the name of any nominee or nominees of the Custodian or
into the name or nominee name of any agent appointed pursuant to
Section 2.7 or into the name or nominee name of any sub-custodian
appointed pursuant to Section 1; or for exchange for a different
number of bonds, certificates or other evidence representing the same
aggregate face amount or number of units; provided that, in any such
case, the new securities are to be delivered to the Custodian;
7) Upon the sale of such securities for the account of the Fund, to the
broker or its clearing agent, against a receipt, for examination in
accordance with "street delivery" custom; provided that in any such
case, the Custodian shall have no responsibility or liability for any
loss arising from the delivery of such securities
ii
prior to receiving payment for such securities except as may arise
from the Custodian's own negligence or willful misconduct;
8) For exchange or conversion pursuant to any plan of merger,
consolidation, recapitalization, reorganization or readjustment of the
securities of the issuer of such securities, or pursuant to provisions
for conversion contained in such securities, or pursuant to any
deposit agreement; provided that, in any such case, the new securities
and cash, if any, are to be delivered to the Custodian;
9) In the case of warrants, rights or similar securities, the surrender
thereof in the exercise of such warrants, rights or similar securities
or the surrender of interim receipts or temporary securities for
definitive securities; provided that, in any such case, the new
securities and cash, if any, are to be delivered to the Custodian;
10) For delivery in connection with any loans of securities made by the
Fund (a) against receipt of collateral, except that in connection with
any loans for which collateral is to be credited to the Custodian's
account in the book-entry system authorized by the U.S. Department of
the Treasury, the Custodian will not be held liable or responsible for
the delivery of securities owned by the Fund prior to the receipt of
such collateral or (b) to the lending agent, or the lending agent's
custodian, in accordance with written Proper Instructions (which may
not provide for the receipt by the Custodian of collateral therefor)
agreed upon from time to time by the Custodian and the Fund;
11) For delivery as security in connection with any borrowing by the Fund
requiring a pledge of assets by the Fund, but only against receipt of
amounts borrowed;
12) For delivery in accordance with the provisions of any agreement among
the Fund, the Custodian and a broker-dealer registered under the
Securities Exchange Act of 1934 (the "Exchange Act") and a member of
The National Association of Securities Dealers, Inc. ("NASD"),
relating to compliance with the rules of The Options Clearing
Corporation and of any registered national securities exchange, or of
any similar organization or organizations, regarding escrow or other
arrangements in connection with transactions by the Fund;
13) For delivery in accordance with the provisions of any agreement among
the Fund, the Custodian, and a futures commission merchant registered
under the Commodity Exchange Act, relating to compliance with the
rules of the Commodity Futures Trading Commission ("CFTC") and/or any
contract market, or any similar organization or organizations,
regarding account deposits in connection with transactions by the
Fund;
14) Upon the sale or other delivery of such investments (including,
without limitation, to one or more (a) Special Sub-Custodians or (b)
additional custodians appointed by a Fund, and communicated to the
Custodian from time to time via a writing
iii
duly executed by an authorized officer of such Fund, for the purpose
of engaging in repurchase agreement transaction(s), each a "Repo
Custodian"), and prior to receipt of payment therefor, only as set
forth in written Proper Instructions (such delivery in advance of
payment, along with payment in advance of delivery made in accordance
with Section 2.6(7), as applicable, shall each be referred to herein
as a "Free Trade"), provided that such Proper Instructions shall set
forth (a) the securities of the Fund to be delivered and (b) the
person(s) to whom delivery of such securities shall be made;
15) Upon receipt of instructions from the transfer agent for the Fund (the
"Transfer Agent") for delivery to such Transfer Agent or to the
holders of Shares in connection with distributions in kind, as may be
described from time to time in the Fund's currently effective
prospectus and statement of additional information (the "Prospectus"),
in satisfaction of requests by holders of Shares for repurchase or
redemption; and
16) In the case of a sale processed through the Underlying Transfer Agent
or Underlying Shares, in accordance with Section 2.10 hereof;
17) For any other purpose, but only upon receipt of Proper Instructions
specifying the securities of the Fund to be delivered and naming the
person or persons to whom delivery of such securities shall be made.
Section 2.3 Registration of Securities. Domestic securities held by the
Custodian (other than bearer securities) shall be registered in the name of the
Fund or in the name of any nominee of the Fund or of any nominee of the
Custodian which nominee shall be assigned exclusively to the Fund, unless the
Fund has authorized in writing the appointment of a nominee to be used in common
with other registered investment companies having the same investment advisor as
the Fund, or in the name or nominee name of any agent appointed pursuant to
Section 2.7 or in the name or nominee name of any sub-custodian appointed
pursuant to Section 1. All securities accepted by the Custodian on behalf of the
Fund under the terms of this Agreement shall be in "street name" or other good
delivery form, provided that the Custodian will hold all such assets in an
account of Custodian as custodian containing only assets of the Fund or only
assets held by the Custodian as fiduciary or custodian for its customers;
provided, further that Custodian's records will at all times indicate the Fund
or the customer for which such assets are held and their respective interest
therein. If, however, the Fund directs the Custodian to maintain securities in
"street name", the Custodian shall utilize its best efforts only to timely
collect income due the Fund on such securities and to notify the Fund on a best
efforts basis only of relevant corporate actions including, without limitation,
pendency of calls, maturities, tender or exchange offers and declaration, record
and payment dates of any dividend.
Section 2.4 Bank Accounts. The Custodian shall open and maintain a separate
bank account or accounts in the United States in the name of the Fund, subject
only to draft or order by the Custodian acting pursuant to the terms of this
Agreement, and shall hold in such account or accounts, subject to the provisions
hereof, all cash received by it from or for the account of the
iv
Fund, other than cash maintained by the Fund in a bank account established and
used in accordance with Rule 17f-3 under the Investment Company Act of 1940, as
amended (the "1940 Act"). Monies held by the Custodian for the Fund may be
deposited by it to its credit as Custodian in the banking department of the
Custodian or in such other banks or trust companies as it may in its discretion
deem necessary or desirable; provided, however, that every such bank or trust
company shall be qualified to act as a custodian under the 1940 Act and that
each such bank or trust company and the monies to be deposited with each such
bank or trust company shall be approved by vote of a majority of the Board. Such
monies shall be deposited by the Custodian in its capacity as Custodian and
shall be withdrawable by the Custodian only in that capacity.
Section 2.5 Collection of Income. Except with respect to Fund property
released and delivered pursuant to Section 2.2(14) or purchased pursuant to
Section 2.6(7), and subject to the provisions of Section 2.3, the Custodian
shall collect on a timely basis all income and other payments with respect to
registered domestic securities held hereunder to which the Fund shall be
entitled either by law or pursuant to custom in the securities business, and
shall collect on a timely basis all income and other payments with respect to
bearer domestic securities if, on the date of payment by the issuer, such
securities are held by the Custodian or its agent thereof and shall credit such
income, as collected, to the Fund's custodian account. Without limiting the
generality of the foregoing, the Custodian shall detach and present for payment
all coupons and other income items requiring presentation as and when they
become due and shall collect interest when due on securities held hereunder.
Income due the Fund on securities loaned pursuant to the provisions of Section
2.2 (10) shall be the responsibility of the Fund. The Custodian will have no
duty or responsibility in connection therewith, other than to provide the Fund
with such information or data as may be necessary to assist the Fund in
arranging for the timely delivery to the Custodian of the income to which the
Fund is properly entitled.
Section 2.6 Payment of Fund Monies. Upon receipt of Proper Instructions,
which may be continuing instructions when deemed appropriate by the parties, the
Custodian shall pay out monies of the Fund in the following cases only:
1) Upon the purchase of domestic securities, options, futures contracts
or options on futures contracts for the account of the Fund but only
(a) against the delivery of such securities or evidence of title to
such options, futures contracts or options on futures contracts to the
Custodian (or any bank, banking firm or trust company doing business
in the United States or abroad which is qualified under the 1940 Act
to act as a custodian and has been designated by the Custodian as its
agent for this purpose) registered in the name of the Fund or in the
name of a nominee of the Custodian referred to in Section 2.3 hereof
or in proper form for transfer; (b) in the case of a purchase effected
through a U.S. Securities System, in accordance with the conditions
set forth in Section 2.8 hereof; (c) in the case of repurchase
agreements entered into between the Fund and the Custodian, or another
bank, or a broker-dealer which is a member of NASD, (i) against
delivery of the securities either in certificate form or through an
entry crediting the Custodian's account at the Federal Reserve Bank
with such securities or (ii) against delivery of the
v
receipt evidencing purchase by the Fund of securities owned by the
Custodian along with written evidence of the agreement by the
Custodian to repurchase such securities from the Fund; or (d) for
transfer to a time deposit account of the Fund in any bank, whether
domestic or foreign; such transfer may be effected prior to receipt of
a confirmation from a broker and/or the applicable bank pursuant to
Proper Instructions from the Fund as defined herein;
2) In connection with conversion, exchange or surrender of securities
owned by the Fund as set forth in Section 2.2 hereof;
3) For the redemption or repurchase of Shares issued as set forth in
Section 4 hereof;
4) For the payment of any expense or liability incurred by the Fund,
including but not limited to the following payments for the account of
the Fund: interest, taxes, management, accounting, transfer agent and
legal fees, and operating expenses of the Fund whether or not such
expenses are to be in whole or part capitalized or treated as deferred
expenses;
5) For the payment of any dividends on Shares declared pursuant to the
governing documents of the Fund;
6) For payment of the amount of dividends received in respect of
securities sold short;
7) Upon the purchase of domestic investments and prior to receipt of such
investments, as set forth in written Proper Instructions (such payment
in advance of delivery, along with delivery in advance of payment made
in accordance with Section 2.2(14), as applicable, shall each be
referred to herein as a "Free Trade"), provided that such Proper
Instructions shall also set forth (a) the amount of such payment and
(b) the person(s) to whom such payment is made; and
8) For any other purpose, but only upon receipt of Proper Instructions
specifying the amount of such payment and naming the person or persons
to whom such payment is to be made.
Except as specifically stated otherwise in this Agreement, in any and every case
where the payment for purchase of domestic securities for the account of the
Fund is made by the Custodian in advance of receipt of the securities purchased
in the absence of specific Proper Instructions from the Fund to so pay in
advance, the Custodian shall be absolutely liable to the Fund for such
securities to the same extent as if the securities had been received by the
Custodian.
Section 2.7 Appointment of Agents. The Custodian may at any time or
times in its discretion appoint (and may at any time remove) any other bank or
trust company which is itself qualified under the 1940 Act to act as a
custodian, as its agent to carry out such of the provisions of this Section 2 as
the Custodian may from time to time direct; provided, however, that the
vi
appointment of any agent shall not relieve the Custodian of its responsibilities
or liabilities hereunder. The Underlying Transfer Agent shall not be deemed an
agent or subcustodian of the Custodian for purposes of this Section 2.7 or any
other provision of this Agreement.
Section 2.8 Deposit of Fund Assets in U.s. Securities Systems. The
Custodian may deposit and/or maintain securities owned by the Fund in a U.S.
Securities System in accordance with applicable Federal Reserve Board and
Securities and Exchange Commission rules and regulations, if any, and subject to
the following provisions:
1) The Custodian may keep securities of the Fund in a U.S. Securities
System provided that such securities are represented in an account of
the Custodian in the U.S. Securities System (the "U.S. Securities
System Account") which account shall not include any assets of the
Custodian other than assets held as a fiduciary, custodian or
otherwise for customers;
2) The records of the Custodian with respect to securities of the Fund
which are maintained in a U.S. Securities System shall identify by
book-entry those securities belonging to the Fund;
3) The Custodian shall pay for securities purchased for the account of
the Fund upon (i) receipt of advice from the U.S. Securities System
that such securities have been transferred to the U.S. Securities
System Account, and (ii) the making of an entry on the records of the
Custodian to reflect such payment and transfer for the account of the
Fund. The Custodian shall transfer securities sold for the account of
the Fund upon (i) receipt of advice from the U.S. Securities System
that payment for such securities has been transferred to the U.S.
Securities System Account, and (ii) the making of an entry on the
records of the Custodian to reflect such transfer and payment for the
account of the Fund. Copies of all advices from the U.S. Securities
System of transfers of securities for the account of the Fund shall
identify the Fund, be maintained for the Fund by the Custodian and be
provided to the Fund at its request. Upon request, the Custodian shall
furnish the Fund confirmation of each transfer to or from the account
of the Fund in the form of a written advice or notice and shall
furnish to the Fund copies of daily transaction sheets reflecting each
day's transactions in the U.S. Securities System for the account of
the Fund;
4) The Custodian shall provide the Fund with any report obtained by the
Custodian on the U.S. Securities System's accounting system, internal
accounting control and procedures for safeguarding securities
deposited in the U.S. Securities System;
5) Anything to the contrary in this Agreement notwithstanding, the
Custodian shall be liable to the Fund for any loss or damage to the
Fund resulting from use of the U.S. Securities System by reason of any
negligence, misfeasance or misconduct of the Custodian or any of its
agents or of any of its or their employees or from
vii
failure of the Custodian or any such agent to enforce effectively such
rights as it may have against the U.S. Securities System; at the
election of the Fund, it shall be entitled to be subrogated to the
rights of the Custodian with respect to any claim against the U.S.
Securities System or any other person which the Custodian may have as
a consequence of any such loss or damage if and to the extent that the
Fund has not been made whole for any such loss or damage.
Section 2.9 Segregated Account. The Custodian shall upon receipt of Proper
Instructions establish and maintain a segregated account or accounts for and on
behalf of the Fund, into which account or accounts may be transferred cash
and/or securities, including securities maintained in an account by the
Custodian pursuant to Section 2.8 hereof, (i) in accordance with the provisions
of any agreement among the Fund, the Custodian and a broker-dealer registered
under the Exchange Act and a member of the NASD (or any futures commission
merchant registered under the Commodity Exchange Act), relating to compliance
with the rules of The Options Clearing Corporation and of any registered
national securities exchange (or the CFTC or any registered contract market), or
of any similar organization or organizations, regarding escrow or other
arrangements in connection with transactions by the Fund, (ii) for purposes of
segregating cash or government securities in connection with options purchased,
sold or written by the Fund or commodity futures contracts or options thereon
purchased or sold by the Fund, (iii) for the purposes of compliance by the Fund
with the procedures required by Investment Company Act Release No. 10666, or any
subsequent release of the U.S. Securities and Exchange Commission (the "SEC"),
or interpretative opinion of the staff of the SEC, relating to the maintenance
of segregated accounts by registered investment companies, and (iv) for any
other purpose upon receipt of Proper Instructions.
Section 2.10 Deposit of Fund Assets With the Underlying Transfer
Agent. Underlying Shares shall be deposited and/or maintained in an account or
accounts maintained with the Underlying Transfer Agent. The Underlying Transfer
Agent shall be deemed to be acting as if it is a "securities depository" for
purposes of Rule 17f-4 under the 1940 Act. The Fund hereby directs the Custodian
to deposit and/or maintain such securities with the Underlying Transfer Agent,
subject to the following provisions:
1) The Custodian shall keep Underlying Shares owned by the Fund with
the Underlying Transfer Agent provided that such securities are
maintained in an account or accounts on the books and records of the
Underlying Transfer Agent in the name of the Custodian as custodian
for the Fund.
2) The records of the Custodian with respect to Underlying Shares
which are maintained with the Underlying Transfer Agent shall identify
by book-entry those Underlying Shares belonging to the Fund;
3) The Custodian shall pay for Underlying Shares purchased for the
account of the Fund upon (a) receipt of advice from the Fund's
investment adviser that such Underlying Shares have been purchased and
will be transferred to the account of the Custodian, on behalf of the
Fund, on the books and records of the
viii
Underlying Transfer Agent and (b) the making of an entry on the
records of the Custodian to reflect such payment and transfer for the
account of the Fund. The Custodian shall receive confirmation from the
Underlying Transfer Agent of the purchase of such securities and the
transfer of such securities to the Custodian's account with the
Underlying Transfer Agent only after such payment is made. The
Custodian shall transfer Underlying Shares redeemed for the account of
the Fund (i) upon receipt of an advice from the Fund's investment
adviser that such securities have been redeemed and that payment for
such securities will be transferred to the Custodian and (ii) the
making of an entry on the records of the Custodian to reflect such
transfer and payment for the account of the Fund. The Custodian will
receive confirmation from the Underlying Transfer Agent of the
redemption of such securities and payment therefor only after such
securities are redeemed. Copies of all advices from the Fund's
investment adviser of purchases and sales of Underlying Shares for the
account of the Fund shall identify the Fund, be maintained for the
Fund by the Custodian, and be provided to the Fund's investment
adviser at its request; and
4) The Custodian shall be not be liable to the Fund for any loss or
damage to the Fund resulting from maintenance of Underlying Shares
with Underlying Transfer Agent except for losses resulting directly
from the negligence, misfeasance or misconduct of the Custodian or any
of its agents or of any of its or their employees.
Section 2.11 Ownership Certificates for Tax Purposes. the Custodian shall
execute ownership and other certificates and affidavits for all federal, state
and local tax purposes in connection with receipt and/or collection of income or
other payments with respect to domestic securities of the Fund held by it and in
connection with transfers of securities.
Section 2.12 Proxies. Except with respect to Fund property released and
delivered pursuant to Section 2.2(14), or purchased pursuant to Section 2.6(7),
the Custodian shall, with respect to the domestic securities held hereunder,
cause to be promptly executed by the registered holder of such securities, if
the securities are registered otherwise than in the name of the Fund or a
nominee of the Fund, all proxies, without indication of the manner in which such
proxies are to be voted, and shall promptly deliver to the Fund such proxies,
all proxy soliciting materials and all notices relating to such securities.
Section 2.13 Communications Relating to Fund Securities. Except with
respect to Fund property released and delivered pursuant to Section 2.2(14), or
purchased pursuant to Section 2.6(7), and subject to the provisions of Section
2.3, the Custodian shall transmit promptly to the Fund all written information
(including, without limitation, pendency of calls and maturities of domestic
securities and expirations of rights in connection therewith) received by the
Custodian from issuers of the securities being held for the Fund. With respect
to tender or exchange offers, the Custodian shall transmit promptly to the Fund
all written information received by the Custodian from issuers of the securities
whose tender or exchange is sought and from the party (or its agents) making the
tender or exchange offer. If the Fund desires to take
ix
action with respect to any tender offer, exchange offer or any other similar
transaction, the Fund shall notify the Custodian at least three business days
prior to the date on which the Custodian is to take such action.
Section 3. Special Sub-custodians
Upon receipt of Special Instructions (as such term is defined in Section 5
hereof), the Custodian shall appoint one or more banks, trust companies or other
entities designated in such Special Instructions to act as a sub-custodian for
the purposes of effecting such transactions as may be designated by a Fund in
Special Instructions. Each such designated sub-custodian is referred to herein
as a "Special Sub-Custodian." Each such duly appointed Special Sub-Custodian
shall be listed on Schedule D hereto, as it may be amended from time to time by
a Fund, with the acknowledgment of the Custodian. In connection with the
appointment of any Special Sub-Custodian, and in accordance with Special
Instructions, the Custodian shall enter into a sub-custodian agreement with the
Fund and the Special Sub-Custodian in form and substance approved by such Fund,
provided that such agreement shall in all events comply with the provisions of
the 1940 Act and the rules and regulations thereunder and the terms and
provisions of this Agreement.
Section 4. Payments for Sales or Repurchases or Redemptions of Shares
The Custodian shall receive from the distributor for the Shares or from the
Transfer Agent and deposit into the Fund's such payments as are received for
Shares thereof issued or sold from time to time by the Fund. The Custodian will
provide timely notification to the Fund and the Transfer Agent of any receipt by
it of payments for Shares of the Fund.
From such funds as may be available for the purpose, the Custodian shall, upon
receipt of instructions from the Transfer Agent, make funds available for
payment to holders of Shares who have delivered to the Transfer Agent a request
for redemption or repurchase of their Shares. In connection with the redemption
or repurchase of Shares, the Custodian is authorized upon receipt of
instructions from the Transfer Agent to wire funds to or through a commercial
bank designated by the redeeming shareholders.
Section 5. Proper Instructions
"Proper Instructions" as used throughout this Agreement means a writing signed
or initialed by one or more person or persons as the Board shall have from time
to time authorized. Each such writing shall set forth the specific transaction
or type of transaction involved. Oral instructions will be considered Proper
Instructions if the Custodian reasonably believes them to have been given by a
person authorized to give such instructions with respect to the transaction
involved. The Fund shall cause all oral instructions to be confirmed in writing.
Proper Instructions may include communications effected directly between
electro-mechanical or electronic devices provided that the Fund and the
Custodian agree to security procedures, including but not limited
x
to, the security procedures selected by the Fund in the Funds Transfer Addendum
attached hereto. For purposes of this Section, Proper Instructions shall include
instructions received by the Custodian pursuant to any three-party agreement
which requires a segregated asset account in accordance with Section 2.9.
"Special Instructions" as used throughout this Agreement, means Proper
Instructions countersigned or confirmed in writing by the Treasurer or any
Assistant Treasurer of the Fund or any other person designated in writing by the
Treasurer of the Fund, which countersignature or confirmation shall be (a)
included on the same instrument containing the Proper Instructions or on a
separate instrument clearly relating thereto and (b) delivered by hand, by
facsimile transmission, or in such other manner as the Fund and the Custodian
agree in writing.
Concurrently with the execution of this Agreement, and from time to time
thereafter, as appropriate, the Fund shall deliver to the Custodian, duly
certified by the Fund's Treasurer or Assistant Treasurer, a certificate setting
forth: (i) the names, titles, signatures and scope of authority of all persons
authorized to give Proper Instructions or any other notice, request, direction,
instruction, certificate or instrument on behalf of the Fund and (ii) the names,
titles and signatures of those persons authorized to give Special Instructions.
Such certificate may be accepted and relied upon by the Custodian as conclusive
evidence of the facts set forth therein and shall be considered to be in full
force and effect until receipt by the Custodian of a similar certificate to the
contrary.
Section 6. Actions Permitted Without Express Authority
The Custodian may in its discretion, without express authority from the Fund:
1) make payments to itself or others for minor expenses of handling
securities or other similar items relating to its duties under
this Agreement, provided that all such payments shall be
accounted for to the Fund;
2) surrender securities in temporary form for securities in
definitive form;
3) endorse for collection, in the name of the Fund, checks, drafts
and other negotiable instruments; and
4) in general, attend to all non-discretionary details in connection
with the sale, exchange, substitution, purchase, transfer and
other dealings with the securities and property of the Fund
except as otherwise directed by the Board.
Section 7. Evidence of Authority
xi
The Custodian shall be protected in acting upon any instructions, notice,
request, consent, certificate or other instrument or paper reasonably believed
by it to be genuine and to have been properly executed by or on behalf of the
Fund. The Custodian may receive and accept a copy of a resolution of the Board,
certified by the Secretary or an Assistant Secretary of the Fund ("Certified
Resolution"), as conclusive evidence (a) of the authority of any person to act
in accordance with such resolution or (b) of any determination or of any action
by the Board as described in such resolution, and such resolution may be
considered as in full force and effect until receipt by the Custodian of written
notice to the contrary.
Section 8. Duties of Custodian With Respect to the Books of Account and
Calculation of Net Asset Value and Net Income
The Custodian shall cooperate with and supply necessary information to the
entity or entities appointed by the Board to keep the books of account of the
Fund and/or compute the net asset value per Share of the outstanding Shares or,
if directed in writing to do so by the Fund, shall itself keep such books of
account and/or compute such net asset value per Share. If so directed, the
Custodian shall also calculate daily the net income of the Fund as described in
the Prospectus and shall advise the Fund and the Transfer Agent daily of the
total amounts of such net income and, if instructed in writing by an officer of
the Fund to do so, shall advise the Transfer Agent periodically of the division
of such net income among its various components. The calculations of the net
asset value per Share and the daily income of the Fund shall be made at the time
or times described from time to time in the Prospectus.
Section 9. Records
The Custodian shall create and maintain all records relating to its activities
and obligations under this Agreement in such manner as will meet the obligations
of the Fund under the 1940 Act, with particular attention to Section 31 thereof
and Rules 31a-1 and 31a-2 thereunder. All such records shall be the property of
the Fund and shall at all times during the regular business hours of the
Custodian be open for inspection by duly authorized officers, employees or
agents of the Fund and employees and agents of the SEC. The Custodian shall, at
the Fund's request, supply the Fund with a tabulation of securities owned by the
Fund and held by the Custodian and shall, when requested to do so by the Fund
and for such compensation as shall be agreed upon between the Fund and the
Custodian, include certificate numbers in such tabulations. The Fund
acknowledges that, in creating and maintaining the records as set forth herein
with respect to Fund property released and delivered pursuant to Section
2.2(14), or purchased pursuant to Section 2.6(7) hereof, the Custodian is
authorized and instructed to rely upon information provided to it by the Fund,
the Fund's counterparty(ies), or the agents of either of them.
The Fund acknowledges and agrees that, with respect to investments maintained
with the Underlying Transfer Agent, the Underlying Transfer Agent is the sole
source of information on the number of shares of a fund held by it on behalf of
the Fund and that the Custodian has the right to rely on holdings information
furnished by the Underlying Transfer Agent to the Custodian in performing its
duties under this Agreement, including without limitation, the duties
xii
set forth in this Section 9; provided, however, that the Custodian shall be
obligated to reconcile information as to purchases and sales of Underlying
Shares contained in trade instructions and confirmations received by the
Custodian and to report promptly any discrepancies to the Underlying Transfer
Agent and the Fund.
Section 10. Opinion of Fund's Independent Accountant
The Custodian shall take all reasonable action, as the Fund may from time to
time request, to obtain from year to year favorable opinions from the Fund's
independent accountants with respect to its activities hereunder in connection
with the preparation of the Fund's Form N-2, and Form N-SAR or other periodic
reports to the SEC and with respect to any other requirements thereof.
Section 11. Reports to Fund by Independent Public Accountants
The Custodian shall provide the Fund, at such times as the Fund may reasonably
require, with reports by independent public accountants on the accounting
system, internal accounting control and procedures for safeguarding securities,
futures contracts and options on futures contracts, including securities
deposited and/or maintained in a U.S. Securities System, relating to the
services provided by the Custodian under this Agreement; such reports, shall be
of sufficient scope and in sufficient detail, as may reasonably be required by
the Fund to provide reasonable assurance that any material inadequacies would be
disclosed by such examination, and, if there are no such inadequacies, the
reports shall so state.
Section 12. Compensation of Custodian
The Custodian shall be entitled to reasonable compensation for its services and
expenses as Custodian, as agreed upon from time to time between the Fund and the
Custodian.
Section 13. Responsibility of Custodian
So long as and to the extent that it is in the exercise of reasonable care and
good faith, the Custodian shall not be responsible for the title, validity or
genuineness of any property or evidence of title thereto received by it or
delivered by it pursuant to this Agreement and shall be held harmless in acting
upon any notice, request, consent, certificate or other instrument reasonably
believed by it to be genuine and to be signed by the proper party or parties,
including any futures commission merchant acting pursuant to the terms of a
three-party futures or options agreement. The Custodian shall be held to the
exercise of reasonable care and good faith in carrying out the provisions of
this Agreement, but shall be kept indemnified by and shall be without liability
to the Fund for any action taken or omitted by it in good faith without
negligence, including, without limitation, acting in accordance with any Proper
Instruction or
xiii
Special Instruction. It shall be entitled to rely on and may act upon 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 in good faith pursuant to
such advice.
Except as may arise from the Custodian's own negligence, willful misconduct or
bad faith or the negligence or willful misconduct of a sub-custodian or agent,
the Custodian shall be without liability to the Fund for any loss, liability,
claim or expense resulting from or caused by; (i) events or circumstances beyond
the reasonable control of the Custodian or any sub-custodian or
Securities System or any agent or nominee of any of the foregoing, including,
without limitation, the interruption, suspension or restriction of trading on or
the closure of any securities market, power or other mechanical or technological
failures or interruptions, computer viruses or communications disruptions, work
stoppages, natural disasters, or other similar events or acts; (ii) errors by
the Fund or its duly-authorized investment manager or investment advisor in
their instructions to the Custodian provided such instructions, and Custodian's
reliance upon them, have been in accordance with this Agreement; (iii) the
insolvency of or acts or omissions by a Securities System; (iv) any act or
omission of a Special Sub-Custodian including, without limitation, reliance on
reports prepared by a Special Sub-Custodian; (v) any delay or failure of any
broker, agent or intermediary, central bank or other commercially prevalent
payment or clearing system to deliver to the Custodian's sub-custodian or agent
securities purchased or in the remittance or payment made in connection with
securities sold; (vi) any delay or failure of any company, corporation, or other
body (other than an affiliate of Custodian) in charge of registering or
transferring securities in the name of the Custodian, the Fund, the Custodian's
sub-custodians, nominees or agents or any consequential losses arising out of
such delay or failure to transfer such securities including non-receipt of
bonus, dividends and rights and other accretions or benefits; (vii) delays or
inability to perform its duties due to any disorder in market infrastructure
with respect to any particular security or Securities System; and (viii) any
provision of any present or future law or regulation or order of the United
States of America, or any state thereof, or any other country, or political
subdivision thereof or of any court of competent jurisdiction.
If the Fund requires the Custodian to take any action with respect to
securities, which action involves the payment of money or which action may, in
the opinion of the Custodian, result in the Custodian or its nominee assigned to
the Fund being liable for the payment of money or incurring liability of some
other form, the Fund, as a prerequisite to requiring the Custodian to take such
action, shall provide indemnity to the Custodian in an amount and form
satisfactory to it.
If the Fund requires the Custodian, its affiliates, subsidiaries or agents, to
advance cash or securities for any purpose (including but not limited to
securities settlements, foreign exchange contracts and assumed settlement) or in
the event that the Custodian or its nominee 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 own negligent action, negligent failure to act or willful misconduct,
any property at any time held for the account of the Fund shall be security
therefor and should the Fund fail to repay the Custodian promptly, the Custodian
shall be entitled to utilize available cash and to dispose of the Fund's assets
to the extent necessary to obtain reimbursement.
xiv
Except as may arise from the Custodian's own negligence, willful misconduct or
bad faith, the Fund shall indemnify and hold the Custodian harmless from and
against any and all costs, expenses, losses, damages, charges, counsel fees,
payments and liabilities which may be asserted against the Custodian (a) acting
in accordance with any Proper Instruction or Special Instruction including,
without limitation, any Proper Instruction with respect to Free Trades
including, but not limited to, cost, expense, loss, damage, liability, tax,
charge, assessment or claim resulting from (i) the failure of the Fund to
receive income with respect to purchased investments, (ii) the failure of the
Fund to recover amounts invested on maturity of purchased investments, (iii) the
failure of the Custodian to respond to or be aware of notices or other corporate
communications with respect to purchased investments, or (iv) the Custodian's
reliance upon information provided by the Fund, the Fund's counterparty(ies) or
the agents of either of them with respect to Fund property released, delivered
or purchased pursuant to either of Section 2.2(14) or Section 2.6(7) hereof; (b)
for the acts or omissions of any Special Sub-Custodian; or (c) for the acts or
omissions of any Local Agent or Pledgee.
In no event shall either party be liable for indirect, special or consequential
damages.
Section 14. Effective Period, Termination and Amendment
This Agreement shall become effective as of its execution, shall continue in
full force and effect until terminated as hereinafter provided, may be amended
at any time by mutual agreement of the parties hereto and may be terminated by
either party by an instrument in writing delivered or mailed, postage prepaid to
the other party, such termination to take effect not sooner than thirty (30)
days after the date of such delivery or mailing; provided, however, that neither
party shall amend or terminate this Agreement in contravention of any applicable
federal or state regulations, or any provision of the Fund's Declaration of
Trust and further provided, that the Fund may at any time by action of its Board
(i) substitute another bank or trust company for the Custodian by giving notice
as described above to the Custodian, or (ii) immediately terminate this
Agreement in the event of the appointment of a conservator or receiver for the
Custodian by the Comptroller of the Currency or upon the happening of a like
event at the direction of an appropriate regulatory agency or court of competent
jurisdiction.
Upon termination of the Agreement, the Fund shall pay to the Custodian such
compensation as may be due as of the date of such termination and shall likewise
reimburse the Custodian for its costs, expenses and disbursements.
Section 15. Successor Custodian
If a successor custodian for the Fund shall be appointed by the Board, the
Custodian shall, upon termination and receipt of Proper Instructions, deliver to
such successor custodian at the office of the Custodian, duly endorsed and in
the form for transfer, all securities of the Fund then held by
xv
it hereunder and shall transfer to an account of the successor custodian all of
the securities of the Fund held in a Securities System or at the Underlying
Transfer Agent.
If no such successor custodian shall be appointed, the Custodian shall, in like
manner, upon receipt of Proper Instructions, deliver at the office of the
Custodian and transfer such securities, funds and other properties in accordance
with such Proper Instructions. In the event that no Proper Instructions
designating a successor custodian or alternative arrangements shall have been
delivered to the Custodian on or before the date when such termination shall
become effective, then the Custodian shall have the right to deliver to a bank
or trust company, which is a "bank" as defined in the 1940 Act, doing business
in Boston, Massachusetts, or New York, New York, of its own selection, having an
aggregate capital, surplus, and undivided profits, as shown by its last
published report, of not less than $25,000,000, all securities, funds and other
properties held by the Custodian hereunder and all instruments held by the
Custodian relative thereto and all other property held by it under this
Agreement on behalf of the Fund, and to transfer to an account of such successor
custodian all of the Fund's securities held in any Securities System or at the
Underlying Transfer Agent. Thereafter, such bank or trust company shall be the
successor of the Custodian under this Agreement.
In the event that securities, funds and other properties remain in the
possession of the Custodian after the date of termination hereof owing to
failure of the Fund to provide Proper Instructions as aforesaid, the Custodian
shall be entitled to fair compensation for its services during such period as
the Custodian retains possession of such securities, funds and other properties
and the provisions of this Agreement relating to the duties and obligations of
the Custodian shall remain in full force and effect.
Section 16. Interpretive and Additional Provisions
In connection with the operation of this Agreement, the Custodian and the Fund
may from time to time agree on such provisions interpretive of or in addition to
the provisions of this Agreement as may in their joint opinion be consistent
with the general tenor of this Agreement. Any such interpretive or additional
provisions shall be in a writing signed by both parties and shall be annexed
hereto, provided that no such interpretive or additional provisions shall
contravene any applicable federal or state regulations or any provision of the
Fund's Declaration of Trust. No interpretive or additional provisions made as
provided in the preceding sentence shall be deemed to be an amendment of this
Agreement.
Section 17. Massachusetts Law to Apply
This Agreement shall be construed and the provisions thereof interpreted under
and in accordance with laws of The Commonwealth of Massachusetts.
xvi
Section 18. Prior Agreements
This Agreement supersedes and terminates, as of the date hereof, all prior
Agreements between the Fund and the Custodian relating to the custody of the
Fund's assets.
Section 19. Notices.
Any notice, instruction or other instrument required to be given hereunder may
be delivered in person to the offices of the parties as set forth herein during
normal business hours or delivered prepaid registered mail or by telex, cable or
telecopy to the parties at the following addresses or such other addresses as
may be notified by any party from time to time.
To the Fund: PIMCO Corporate Opportunity Fund
c/o PIMCO Advisors Distributors
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
To the Custodian: State Street Bank and Trust Company
▇▇▇▇▇▇ ▇▇▇▇▇▇ Building, 2 South
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Such notice, instruction or other instrument shall be deemed to have been served
in the case of a registered letter at the expiration of five business days after
posting, in the case of cable twenty-four hours after dispatch and, in the case
of telex, immediately on dispatch and if delivered outside normal business hours
it shall be deemed to have been received at the next time after delivery when
normal business hours commence and in the case of cable, telex or telecopy on
the business day after the receipt thereof. Evidence that the notice was
properly addressed, stamped and put into the post shall be conclusive evidence
of posting.
Section 20. Reproduction of Documents
This Agreement and all schedules, addenda, exhibits, attachments and amendments
hereto may be reproduced by any photographic, photostatic, microfilm,
micro-card, miniature photographic or other similar process. The parties hereto
all/each agree that any such reproduction shall be
xvii
admissible in evidence as the original itself in any judicial or administrative
proceeding, whether or not the original is in existence and whether or not such
reproduction was made by a party in the regular course of business, and that any
enlargement, facsimile or further reproduction of such reproduction shall
likewise be admissible in evidence.
Section 21. Counterparts.
This Agreement may be executed in several counterparts, each of which shall be
deemed to be an original, and all such counterparts taken together shall
constitute one and the same Agreement.
Section 22. Severability.
If any provision or provisions of this Agreement shall be held to be invalid,
unlawful or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired.
Section 23. Remote Access Services Addendum.
The Custodian and the Fund agree to be bound by the terms of the Remote Access
Services Addendum attached hereto.
Section 24. Shareholder Communications Election
SEC Rule 14b-2 requires banks which hold securities for the account of customers
to respond to requests by issuers of securities for the names, addresses and
holdings of beneficial owners of securities of that issuer held by the bank
unless the beneficial owner has expressly objected to disclosure of this
information. In order to comply with the rule, the Custodian needs the Fund to
indicate whether it authorizes the Custodian to provide the Fund's name,
address, and share position to requesting companies whose securities the Fund
owns. If the Fund tells the Custodian "no", the Custodian will not provide this
information to requesting companies. If the Fund tells the Custodian "yes" or
does not check either "yes" or "no" below, the Custodian is required by the rule
to treat the Fund as consenting to disclosure of this information for all
securities owned by the Fund or any funds or accounts established by the Fund.
For the Fund's protection, the Rule prohibits the requesting company from using
the Fund's name and address for any purpose other than corporate communications.
Please indicate below whether the Fund consents or objects by checking one of
the alternatives below.
YES [_] The Custodian is authorized to release the Fund's name, address,
and share positions.
NO [X] The Custodian is not authorized to release the Fund's name,
address, and share positions.
xviii
IN WITNESS WHEREOF, each of the parties has caused this instrument to be
executed in its name and behalf by its duly authorized representative and its
seal to be hereunder affixed as of November ___, 2002.
PIMCO Corporate Opportunity Fund Fund signature attested to By:
By: ____________________________ By: ___________________________
Name: ____________________________ Name: ___________________________
Title: ____________________________ Title: *[secretary/ass't secretary]
---------------------------
State Street Bank and Trust Company Signature attested to By:
By: ____________________________ By: ___________________________
Name: ____________________________ Name: ___________________________
Title: ____________________________ Title: ___________________________
xix
REMOTE ACCESS SERVICES ADDENDUM TO CUSTODIAN AGREEMENT
ADDENDUM to that certain Custodian Agreement dated as of
________________, 2002 (the "Custodian Agreement") between PIMCO Corporate
Opportunity Fund (the "Customer") and State Street Bank and Trust Company,
including its subsidiaries and affiliates ("State Street").
State Street has developed and utilizes proprietary accounting and
other systems in conjunction with the custodian services which State Street
provides to the Customer. In this regard, State Street maintains certain
information in databases under its control and ownership which it makes
available to its customers (the "Remote Access Services").
The Services
State Street agrees to provide the Customer, and its designated investment
advisors, consultants or other third parties authorized by State Street
("Authorized Designees") with access to In~Sight(SM) as described in Exhibit A
or such other systems as may be offered from time to time (the "System") on a
remote basis.
Security Procedures
The Customer agrees to comply, and to cause its Authorized Designees to comply,
with remote access operating standards and procedures and with user
identification or other password control requirements and other security
procedures as may be issued from time to time by State Street for use of the
System and access to the Remote Access Services. The Customer agrees to advise
State Street immediately in the event that it learns or has reason to believe
that any person to whom it has given access to the System or the Remote Access
Services has violated or intends to violate the terms of this Addendum and the
Customer will cooperate with State Street in seeking injunctive or other
equitable relief. The Customer agrees to discontinue use of the System and
Remote Access Services, if requested, for any security reasons cited by State
Street.
Fees
Fees and charges for the use of the System and the Remote Access Services and
related payment terms shall be as set forth in the custody fee schedule in
effect from time to time between the parties (the "Fee Schedule"). The Customer
shall be responsible for any tariffs, duties or taxes imposed or levied by any
government or governmental agency by reason of the transactions contemplated by
this Addendum, including, without limitation, federal, state and local taxes,
use, value added and personal property taxes (other than income, franchise or
similar taxes which may be imposed or assessed against State Street). Any
claimed exemption from such tariffs, duties or taxes shall be supported by
proper documentary evidence delivered to State Street.
Proprietary Information/Injunctive Relief
The System and Remote Access Services described herein and the databases,
computer programs, screen formats, report formats, interactive design
techniques, formulae, processes, systems, software, know- how, algorithms,
programs, training aids, printed materials, methods, books, records, files,
documentation and other information made available to the Customer by State
Street as part of the
xx
Remote Access Services and through the use of the System and all copyrights,
patents, trade secrets and other proprietary rights of State Street related
thereto are the exclusive, valuable and confidential property of State Street
and its relevant licensors (the "Proprietary Information"). The Customer agrees
on behalf of itself and its Authorized Designees to keep the Proprietary
Information confidential and to limit access to its employees and Authorized
Designees (under a similar duty of confidentiality) who require access to the
System for the purposes intended. The foregoing shall not apply to Proprietary
Information in the public domain or required by law to be made public.
The Customer agrees to use the Remote Access Services only in connection with
the proper purposes of this Addendum. The Customer will not, and will cause its
employees and Authorized Designees not to, (i) permit any third party to use the
System or the Remote Access Services, (ii) sell, rent, license or otherwise use
the System or the Remote Access Services in the operation of a service bureau or
for any purpose other than as expressly authorized under this Addendum, (iii)
use the System or the Remote Access Services for any fund, trust or other
investment vehicle without the prior written consent of State Street, or (iv)
allow or cause any information transmitted from State Street's databases,
including data from third party sources, available through use of the System or
the Remote Access Services, to be published, redistributed or retransmitted for
other than use for or on behalf of the Customer, as State Street's customer.
The Customer agrees that neither it nor its Authorized Designees will modify the
System in any way; enhance or otherwise create derivative works based upon the
System; or reverse engineer, decompile or otherwise attempt to secure the source
code for all or any part of the System.
The Customer acknowledges that the disclosure of any Proprietary Information, or
of any information which at law or equity ought to remain confidential, will
immediately give rise to continuing irreparable injury to State Street
inadequately compensable in damages at law and that State Street shall be
entitled to obtain immediate injunctive relief against the breach or threatened
breach of any of the foregoing undertakings, in addition to any other legal
remedies which may be available.
Limited Warranties
State Street represents and warrants that it is the owner of and has the right
to grant access to the System and to provide the Remote Access Services
contemplated herein. Because of the nature of computer information technology
and the necessity of relying upon third party sources, and data and pricing
information obtained from third parties, the System and Remote Access Services
are provided "AS IS", and the Customer and its Authorized Designees shall be
solely responsible for the investment decisions, results obtained, regulatory
reports and statements produced using the Remote Access Services. State Street
and its relevant licensors will not be liable to the Customer or its Authorized
Designees for any direct or indirect, special, incidental, punitive or
consequential damages arising out of or in any way connected with the System or
the Remote Access Services, nor shall either party be responsible for delays or
nonperformance under this Addendum arising out of any cause or event beyond such
party's control.
State Street will take reasonable steps to ensure that its products (and those
of its third-party suppliers) reflect the available state of the art technology
to offer products that are Year 2000 compliant, including, but not limited to,
century recognition of dates, calculations that correctly compute same century
and multi century formulas and date values, and interface values that reflect
the date issues arising between now and December 31, 2099, and if any changes
are required, State Street will make the changes to its products at no cost to
you and in a commercially reasonable time frame and will require third-party
suppliers to do likewise. The Customer will do likewise for its systems.
xxi
EXCEPT AS EXPRESSLY SET FORTH IN THIS ADDENDUM, STATE STREET, FOR ITSELF AND ITS
RELEVANT LICENSORS, EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES CONCERNING THE
SYSTEM AND THE SERVICES TO BE RENDERED HEREUNDER, WHETHER EXPRESS OR IMPLIED
INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTIBILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
Infringement
State Street will defend or, at our option, settle any claim or action brought
against the Customer to the extent that it is based upon an assertion that
access to the System or use of the Remote Access Services by the Customer under
this Addendum constitutes direct infringement of any United States patent or
copyright or misappropriation of a trade secret, provided that the Customer
notifies State Street promptly in writing of any such claim or proceeding and
cooperates with State Street in the defense of such claim or proceeding. Should
the System or the Remote Access Services or any part thereof become, or in State
Street's opinion be likely to become, the subject of a claim of infringement or
the like under the patent or copyright or trade secret laws of the United
States, State Street shall have the right, at State Street's sole option, to (i)
procure for the Customer the right to continue using the System or the Remote
Access Services, (ii) replace or modify the System or the Remote Access Services
so that the System or the Remote Access Services becomes noninfringing, or (iii)
terminate this Addendum without further obligation.
Termination
Either party to the Custodian Agreement may terminate this Addendum (i) for any
reason by giving the other party at least one-hundred and eighty (180) days'
prior written notice in the case of notice of termination by State Street to the
Customer or thirty (30) days' notice in the case of notice from the Customer to
State Street of termination, or (ii) immediately for failure of the other party
to comply with any material term and condition of the Addendum by giving the
other party written notice of termination. This Addendum shall in any event
terminate within ninety (90) days after the termination of the Custodian
Agreement. In the event of termination, the Customer will return to State Street
all copies of documentation and other confidential information in its possession
or in the possession of its Authorized Designees. The foregoing provisions with
respect to confidentiality and infringement will survive termination for a
period of three (3) years.
Miscellaneous
This Addendum and the exhibit hereto constitute the entire understanding of the
parties to the Custodian Agreement with respect to access to the System and the
Remote Access Services. This Addendum cannot be modified or altered except in a
writing duly executed by each of State Street and the Customer and shall be
governed by and construed in accordance with the laws of The Commonwealth of
Massachusetts.
By its execution of the Custodian Agreement, the Customer accepts responsibility
for its and its Authorized Designees' compliance with the terms of this
Addendum.
xxii
EXHIBIT A
to
REMOTE ACCESS SERVICES ADDENDUM TO CUSTODIAN AGREEMENT
IN~SIGHT(SM)
System Product Description
In~Sight(SM) provides information delivery and on-line access to State Street.
In~Sight(SM) allows users a single point of entry into the many views of data
created by the diverse systems and applications. Reports and data from systems
such as Investment Policy Monitor(SM), Multicurrency Horizon(SM), Securities
Lending, Performance & Analytics can be accessed through In~Sight(SM). This
Internet-enabled application is designed to run from a Web browser and perform
across low-speed data line or corporate high-speed backbones. In~Sight(SM) also
offers users a flexible toolset, including an ad-hoc query function, a custom
graphics package, a report designer, and a scheduling capability. Data and
reports offered through In~Sight(SM) will continue to increase in direct
proportion with the customer roll out, as it is viewed as the information
delivery system will grow with State Street's customers.
xxiii
Proposed Foreign Custody Provisions
AMENDMENT TO CUSTODY AND INVESTMENT ACCOUNTING AGREEMENT
This Amendment to the Custody and Investment Accounting Agreement is
made as of November ___, 2002 by and between State Street Bank and Trust Company
("State Street"), PIMCO Corporate Opportunity Fund (the "Fund"), and Pacific
Investment Management Company ("PIMCO"), acting as administrator or
sub-administrator for the Fund. Capitalized terms used in this Amendment without
definition shall have the respective meanings given to such terms in the
Contract referred to below.
WHEREAS, the Fund, PIMCO and State Street entered into a Custody and
Investment Accounting Agreement dated as of November ___, 2002 (the "Contract");
and
WHEREAS, the Fund is authorized to issue shares in separate series,
with each such series representing interests in a separate portfolio of
securities and other assets, and the Fund has made each such series subject to
the Contract (each such series, together with all other series subsequently
established by the Fund and made subject to the Contract in accordance with the
terms thereof, shall be referred to as a "Portfolio", and, collectively, the
"Portfolios"); and
WHEREAS, the Fund, PIMCO and State Street desire to amend certain
provisions of the Contract to reflect revisions to Rule 17f-5 ("Rule 17f-5") and
the adoption of Rule 17f-7 ("Rule 17f-7") promulgated under the Investment
Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Fund, PIMCO and State Street desire to amend and restate
certain other provisions of the Contract relating to the custody of assets of
each of the Portfolios held outside of the United States.
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements hereinafter contained, the parties hereby agree to
amend the Contract, pursuant to the terms thereof, as follows:
I. Section 3, Paragraph Q of the Contract is hereby deleted.
II. New Section 3, Paragraph Q of the Contract is hereby added, as of the
effective date of this Amendment, as set forth below.
3.Q. Provisions Relating to Rule 17f-5
3.Q.1. Definitions. Capitalized terms in this Amendment shall have
the following meanings:
1
"Country Risk" means all factors reasonably related to the systemic risk of
holding Foreign Assets in a particular country including, but not limited to,
such country's political environment, economic and financial infrastructure
(including any Eligible Securities Depository operating in the country),
prevailing or developing custody and settlement practices, and laws and
regulations applicable to the safekeeping and recovery of Foreign Assets held in
custody in that country.
"Eligible Foreign Custodian" has the meaning set forth in section (a)(1) of Rule
17f-5 (as such term may be interpreted or modified by appropriate action of the
U.S. Securities and Exchange Commission (the "SEC")).
"Eligible Securities Depository" has the meaning set forth in section (b)(1) of
Rule 17f-7 (as such term may be interpreted or modified by appropriate action of
the SEC).
"Foreign Assets" means any of the Portfolios' investments (including foreign
currencies) for which the primary market is outside the United States, and any
cash and cash equivalents that are reasonably necessary to effect the
Portfolios' transactions in such investments.
"Foreign Custody Manager" has the meaning set forth in section (a)(3) of Rule
17f-5 (as such term may be interpreted or modified by appropriate action of the
SEC).
3.Q.2. Delegation to State Street as Foreign Custody Manager. The Fund,
by resolution adopted by its Board of Trustees (each a "Board"), hereby
delegates to State Street, subject to Section (b) of Rule 17f-5, the
responsibilities set forth in this Section 3.Q. with respect to Foreign Assets
of the Portfolios of the Fund held outside the United States, and State Street
hereby accepts such delegation as Foreign Custody Manager with respect to the
Portfolios.
3.Q.3. Countries Covered. The Foreign Custody Manager shall be
responsible for performing the delegated responsibilities defined below only
with respect to the countries and custody arrangements for each such country
listed on Schedule A to this Contract, which list of countries may be amended
from time to time by the Fund with the agreement of the Foreign Custody Manager.
The Foreign Custody Manager shall list on Schedule A the Eligible Foreign
Custodians selected by the Foreign Custody Manager to maintain the assets of the
Portfolios, which list of Eligible Foreign Custodians may be amended from time
to time in the sole discretion of the Foreign Custody Manager. The Foreign
Custody Manager will provide amended versions of Schedule A in accordance with
Section 3.Q.6 hereof.
Upon the receipt by the Foreign Custody Manager of Instructions to open an
account or to place or maintain Foreign Assets in a country listed on Schedule
A, and the fulfillment by the Fund, on behalf of its Portfolios, of the
applicable account opening requirements for such country, the Foreign Custody
Manager shall be deemed to have been delegated by the applicable Board on behalf
of its Portfolios responsibility as Foreign Custody Manager with respect to that
country and to have accepted such delegation. Execution of this Amendment by the
Fund shall be deemed to be an Instruction to open an account, or to place or
maintain Foreign Assets, of each Portfolio of the Fund in each country listed on
Schedule A in which State Street has previously placed or currently maintains
Foreign Assets pursuant to the terms of the Contract. Following the receipt of
Instructions
2
directing the Foreign Custody Manager to close the account of a Portfolio with
the Eligible Foreign Custodian selected by the Foreign Custody Manager in a
designated country, the delegation by such Board on behalf of such Portfolios to
State Street as Foreign Custody Manager for that country shall be deemed to have
been withdrawn and State Street shall immediately cease to be the Foreign
Custody Manager of the Portfolios with respect to that country.
The Foreign Custody Manager may withdraw its acceptance of delegated
responsibilities with respect to a designated country upon written notice to the
Fund. Sixty days (or such longer period to which the parties agree in writing)
after receipt of any such notice by the Fund, State Street shall have no further
responsibility in its capacity as Foreign Custody Manager to that Fund with
respect to the country as to which State Street's acceptance of delegation is
withdrawn.
3.Q.4. Scope of Delegated Responsibilities:
(a) Selection of Eligible Foreign Custodians. Subject to the
provisions of Section 3.Q., the Foreign Custody Manager may place and maintain
the Foreign Assets in the care of the Eligible Foreign Custodian selected by the
Foreign Custody Manager in each country listed on Schedule A, as amended from
time to time. In performing its delegated responsibilities as Foreign Custody
Manager to place or maintain Foreign Assets with an Eligible Foreign Custodian,
the Foreign Custody Manager shall determine that the Foreign Assets will be
subject to reasonable care, based on the standards applicable to custodians in
the relevant market, after considering all factors relevant to the safekeeping
of such assets, including without limitation, the factors specified in Rule
17f-5(c)(1), as amended from time to time.
(b) Contracts With Eligible Foreign Custodians. The Foreign
Custody Manager shall determine that each arrangement with an Eligible Foreign
Custodian is governed by a written contract and that such contract will satisfy
the requirements of Rule 17f-5(c)(2), as amended from time to time.
(c) Monitoring. In each case in which the Foreign Custody
Manager maintains Foreign Assets with an Eligible Foreign Custodian selected by
the Foreign Custody Manager, the Foreign Custody Manager shall have established
a system to monitor (i) the appropriateness of maintaining the Foreign Assets
with such Eligible Foreign Custodian and (ii) the performance of the contract
governing the custody arrangements established by the Foreign Custody Manager
with the Eligible Foreign Custodian under Rule 17f-5(c)(2). In the event the
Foreign Custody Manager determines that the custody arrangements with an
Eligible Foreign Custodian it has selected are no longer appropriate or no
longer meet the requirements of Rule 17f-5, the Foreign Custody Manager shall
notify the applicable Board in accordance with Section 3.Q.6 hereunder and State
Street shall, upon Instruction, assist the Portfolios in withdrawing their
assets from such Eligible Foreign Custodian as soon as reasonably practicable.
3.Q.5. Guidelines for the Exercise of Delegated Authority. For
purposes of this Section 3.Q, the Board, or at its delegation the Fund's
investment adviser, shall be deemed to have considered and determined to accept
such Country Risk as is incurred by placing and maintaining the
3
Foreign Assets in each country for which State Street is serving as Foreign
Custody Manager of the Portfolios.
3.Q.6. Reporting Requirements. The Foreign Custody Manager shall
report the withdrawal of the Foreign Assets from an Eligible Foreign Custodian
and the placement of such Foreign Assets with another Eligible Foreign Custodian
by providing to the applicable Board an amended Schedule A at the end of the
calendar quarter in which an amendment to such Schedule has occurred. The
Foreign Custody Manager shall make written quarterly reports notifying the Board
of any other material change in the foreign custody arrangements of the
Portfolios described in this Section 3.Q after the occurrence of the material
change.
3.Q.7. Standard of Care as Foreign Custody Manager of a Portfolio. In
performing the responsibilities delegated to it hereunder, the Foreign Custody
Manager agrees to exercise reasonable care, prudence and diligence such as a
person having responsibility for the safekeeping of a Portfolio's Foreign Assets
would exercise.
3.Q.8. Representations with Respect to Rule 17f-5. The Foreign Custody
Manager represents to the Fund that it is a U.S. Bank as defined in section
(a)(7) of Rule 17f-5 and is otherwise eligible to serve as a Foreign Custody
Manager under Rule 17f-5. The Fund represents to State Street that its Board has
determined that it is reasonable for the Board to rely on State Street to
perform the responsibilities delegated pursuant to this Contract to State Street
as the Foreign Custody Manager of the Fund's Portfolios.
3.Q.9. Effective Date and Termination of State Street as Foreign
Custody Manager. Each Board's delegation to State Street as Foreign Custody
Manager of the Fund's applicable Portfolios shall be effective as of the date
hereof and shall remain in effect until terminated at any time, without penalty,
by written notice from the terminating party to the non-terminating party.
Termination of State Street as Foreign Custody Manager will become effective
thirty (30) days after receipt by the non-terminating party of such notice. The
provisions of Section 3.Q.3 hereof shall govern the delegation to and
termination of State Street as Foreign Custody Manager of the Portfolios with
respect to designated countries.
3.Q.10. Analysis and Monitoring Under Rule ▇▇▇-▇. ▇▇▇▇▇ ▇▇▇▇▇▇ shall
(a) provide the Fund (or its duly-authorized investment manager or investment
adviser) with an analysis of the custody risks associated with maintaining
assets with the Eligible Securities Depositories set forth on Schedule B hereto,
as amended from time to time, in accordance with section (a)(1)(i)(A) of Rule
17f-7, as amended from time to time, and (b) monitor such risks on a continuing
basis, and promptly notify the Fund (or its duly-authorized investment manager
or investment adviser) of any material change in such risks, in accordance with
section (a)(1)(i)(B) of Rule 17f-7, as amended from time to time.
3.Q.11. Standard of Care Under Rule ▇▇▇-▇. ▇▇▇▇▇ ▇▇▇▇▇▇ agrees to
exercise reasonable care, prudence and diligence in performing the requirements
and duties set forth in Section 3.Q.10.
3.Q.12 Eligible Securities Depositories. State Street has made the
determination that
4
each depository institution listed on Schedule B hereto is an "Eligible
Securities Depository" as defined in section (b)(1) of Rule ▇▇▇-▇. ▇▇▇▇▇ ▇▇▇▇▇▇
shall promptly inform the Fund if it becomes aware that any of the factors set
forth in section (b)(1) of Rule 17f-7 no long apply to a depository institution
listed on Schedule B hereto, as such factors may be interpreted or modified by
appropriate action of the SEC from time to time, i.e., such depository
institution no longer: (i) acts as or operates a system for the central handling
of securities or equivalent book-entries in the country where it is
incorporated, or acts as a transnational system for the central handling of
securities or equivalent book-entries, (ii) is regulated by a foreign financial
regulatory authority as defined under Section 2(a)(50) of the Investment Company
Act, (iii) holds assets for the custodian that participates in the system on
behalf of the Fund under safekeeping conditions no less favorable than the
conditions that apply to other participants, (iv) maintains records that
identify the assets of each participant and segregates the system's own assets
from the assets of participants, (v) provides periodic reports to its
participants with respect to its safekeeping of assets, including notices of
transfer to or from any participant's account, or (vi) is subject to periodic
examination by regulatory authorities or independent accountants.
III. New Section 3, Paragraph Y of the Contract is hereby added, as of the
effective date of this Amendment, as set forth below.
3.Y. Provisions Relating to Custody of Assets Held Outside the United States
3.Y.1. Definitions. Capitalized terms in this Section 3.Y. shall have
the following meanings:
"Foreign Securities System" means an Eligible Securities Depository listed on
Schedule B hereto.
"Foreign Sub-Custodian" means a foreign banking institution serving as an
Eligible Foreign Custodian hereunder.
3.Y.2. Holding Securities. State Street shall identify on its books as
belonging to each Portfolio the foreign securities held of such Portfolio placed
with and maintained by each Foreign Sub-Custodian or Foreign Securities System.
State Street may hold foreign securities for all of its customers, including the
Portfolios, with any Foreign Sub-Custodian in an account that is identified as
belonging to State Street for the benefit of its customers, provided however,
that (i) the records of State Street with respect to foreign securities of a
Portfolio which are maintained in such account shall identify those securities
as belonging to that Portfolio and (ii), to the extent permitted by law in the
market in which the account is maintained, State Street shall require that
securities so held by the Foreign Sub-Custodian be held separately from any
assets of such Foreign Sub-Custodian or of other customers of such Foreign
Sub-Custodian.
3.Y.3. Foreign Securities Systems. Foreign securities shall be
maintained in a Foreign Securities System in a designated country through
arrangements implemented by State Street or a Foreign Sub-Custodian, as
applicable, in such country.
3.Y.4. Transactions in Foreign Custody Account.
5
3.Y.4.1. Delivery of Foreign Assets. State Street or a Foreign
Sub-Custodian shall release and deliver foreign securities of the
Portfolios held by State Street or such Foreign Sub-Custodian, or in a
Foreign Securities System account, only upon receipt of Instructions,
which may be continuing instructions when deemed appropriate by the
parties, and only in the following cases:
(i) upon the sale of such foreign securities for the Portfolio in
accordance with commercially reasonable market practice in the
country where such foreign securities are held or traded,
including, without limitation: (A) delivery against
expectation of receiving later payment; or (B) in the case of
a sale effected through a Foreign Securities System, in
accordance with the rules governing the operation of the
Foreign Securities System;
(ii) in connection with any repurchase agreement related to foreign
securities;
(iii) to the depository agent in connection with tender or other
similar offers for foreign securities of the Portfolios;
(iv) to the issuer thereof or its agent when such foreign
securities are called, redeemed, retired or otherwise become
payable;
(v) to the issuer thereof, or its agent, for transfer into the
name of State Street (or the name of the respective Foreign
Sub-Custodian or of any nominee of State Street or such
Foreign Sub-Custodian) or for exchange for a different number
of bonds, certificates or other evidence representing the same
aggregate face amount or number of units;
(vi) to brokers, clearing banks or other clearing agents for
examination or trade execution in accordance with market
custom; provided that in any such case the Foreign
Sub-Custodian shall have no responsibility or liability for
any loss arising from the delivery of such securities prior to
receiving payment for such securities except as may arise from
the Foreign Sub-Custodian's own negligence, bad faith or
willful misconduct;
(vii) for exchange or conversion pursuant to any plan of merger,
consolidation, recapitalization, reorganization or
readjustment of the securities of the issuer of such
securities, or pursuant to provisions for conversion contained
in such securities, or pursuant to any deposit agreement;
(viii) in the case of warrants, rights or similar foreign securities,
the surrender thereof in the exercise of such warrants, rights
or similar securities or the surrender of interim receipts or
temporary securities for definitive securities;
6
(ix) for delivery as security in connection with any borrowing by
the Portfolios requiring a pledge of assets by the Portfolios;
(x) in connection with trading in options and futures contracts,
including delivery as original margin and variation margin;
(xi) in connection with the lending of foreign securities; and
(xii) for any other purpose, but only upon receipt of Instructions
specifying the foreign securities to be delivered and naming
the person or persons to whom delivery of such securities
shall be made.
3.Y.4.2. Payment of Portfolio Monies. Upon receipt of Instructions,
which may be continuing instructions when deemed appropriate by the
parties, State Street shall pay out, or direct the respective Foreign
Sub-Custodian or the respective Foreign Securities System to pay out,
monies of a Portfolio in the following cases only:
(i) upon the purchase of foreign securities for the Portfolio,
unless otherwise directed by Instructions, by (A) delivering
money to the seller thereof or to a dealer therefor (or an
agent for such seller or dealer) against expectation of
receiving later delivery of such foreign securities; or (B) in
the case of a purchase effected through a Foreign Securities
System, in accordance with the rules governing the operation
of such Foreign Securities System;
(ii) in connection with the conversion, exchange or surrender of
foreign securities of the Portfolio;
(iii) for the payment of any expense or liability of the Portfolio,
including but not limited to the following payments: interest,
taxes, investment advisory fees, transfer agency fees, fees
under this Contract, legal fees, accounting fees, and other
operating expenses;
(iv) for the purchase or sale of foreign exchange or foreign
exchange contracts for the Portfolio, including transactions
executed with or through State Street or its Foreign
Sub-Custodians;
(v) in connection with trading in options and futures contracts,
including delivery as original margin and variation margin;
(vi) for payment of part or all of the dividends received in
respect of securities sold short;
(vii) in connection with the borrowing or lending of foreign
securities; and
7
(viii) for any other purpose, but only upon receipt of Instructions
specifying the amount of such payment and naming the person or
persons to whom such payment is to be made.
3.Y.4.3. Market Conditions. Notwithstanding any provision of this
Contract to the contrary, settlement and payment for Foreign Assets
received for the account of the Portfolios and delivery of Foreign Assets
maintained for the account of the Portfolios may be effected in
accordance with the customary established securities trading or
processing practices and procedures in the country or market in which the
transaction occurs, including, without limitation, delivering Foreign
Assets to the purchaser thereof or to a dealer therefor (or an agent for
such purchaser or dealer) with the expectation of receiving later payment
for such Foreign Assets from such purchaser or dealer.
State Street shall provide to the Board the information described on
Schedule C hereto with respect to custody and settlement practices in
countries in which State Street employs a Foreign Sub-Custodian or uses a
Foreign Securities System at the time or times set forth on such
Schedule. State Street may revise Schedule C from time to time, provided
that no such revision shall result in the Board being provided with
substantively less information than had been previously provided
hereunder.
3.Y.5. Registration of Foreign Securities. A Portfolio's foreign
securities maintained in the custody of a Foreign Sub-Custodian (other than
bearer securities) shall be registered in the name of such Portfolio or in the
name of State Street or in the name of any Foreign Sub-Custodian or in the name
of any nominee of the foregoing (provided, however, that such registration
indicates such foreign securities as having been held for the benefit of
customers and not, in any event, for the benefit of State Street or a Foreign
Sub-Custodian or any nominee thereof), and the Fund on behalf of such Portfolio
agrees to hold any such nominee harmless from any liability as a holder of
record of such foreign securities. State Street or a Foreign Sub-Custodian shall
not be obligated to accept securities on behalf of a Portfolio under the terms
of this Contract unless the form of such securities and the manner in which they
are delivered are in accordance with reasonable market practice.
3.Y.6. Bank Accounts. State Street shall identify on its books as
belonging to a Portfolio cash (including cash denominated in foreign currencies)
deposited with State Street. Where State Street is unable to maintain, or market
practice does not facilitate the maintenance of, cash on the books of State
Street, a bank account or bank accounts shall be opened and maintained outside
the United States on behalf of such Portfolio with a Foreign Sub-Custodian. All
accounts referred to in this Section shall be subject only to draft or order by
State Street (or, if applicable, such Foreign Sub-Custodian) acting pursuant to
the terms of this Agreement to hold cash received by or from or for the account
of the Portfolio. Cash maintained on the books of State Street (including its
branches, subsidiaries and affiliates), regardless of currency denomination, is
maintained in bank accounts established under, and subject to the laws of, The
Commonwealth of Massachusetts.
3.Y.7. Collection of Income. State Street shall use reasonable commercial
efforts to collect all income and other payments with respect to the Foreign
Assets held hereunder to which any Portfolio shall be entitled and shall credit
such income, as collected, to the applicable Portfolio. In
8
the event that extraordinary measures are required to collect such income, the
applicable Fund and State Street shall consult as to such measures and as to the
compensation and expenses of State Street relating to such measures.
3.Y.8. Shareholder Rights. With respect to the foreign securities held
pursuant to this Agreement, State Street will use reasonable commercial efforts
to facilitate the exercise of voting and other shareholder rights, subject
always to the laws, regulations and practical constraints that may exist in the
country where such securities are issued. The Fund acknowledges that local
conditions, including lack of regulation, onerous procedural obligations, lack
of notice and other factors may have the effect of severely limiting the ability
of the Fund to exercise shareholder rights.
3.Y.9. Communications Relating to Foreign Securities. State Street shall
transmit promptly to the Fund written information with respect to materials
received by State Street via the Foreign Sub-Custodians from issuers of the
foreign securities being held for the account of the Fund's Portfolios
(including, without limitation, pendency of calls and maturities of foreign
securities and expirations of rights in connection therewith). With respect to
tender or exchange offers, State Street shall transmit promptly to the Fund
written information with respect to materials so received by State Street from
issuers of the foreign securities whose tender or exchange is sought or from the
party (or its agents) making the tender or exchange offer. Absent State Street's
negligence, misfeasance or misconduct, State Street shall not be liable for any
untimely exercise of any tender, exchange or other right or power in connection
with foreign securities or other property of the Portfolios at any time held by
it unless (i) State Street or the respective Foreign Sub-Custodian is in actual
possession of such foreign securities or property and (ii) State Street receives
Instructions with regard to the exercise of any such right or power, and both
(i) and (ii) occur at least three business days prior to the date on which State
Street is to take action to exercise such right or power.
3.Y.10. Liability of Foreign Sub-Custodians. Each agreement pursuant to
which State Street employs a Foreign Sub-Custodian shall, to the extent
possible, require the Foreign Sub-Custodian to exercise reasonable care in the
performance of its duties, and to indemnify, and hold harmless, State Street,
and the Fund and Portfolio from and against any loss, damage, cost, expense,
liability or claim arising out of or in connection with the Foreign
Sub-Custodian's performance of such obligations. At a Fund's election, the
Fund's Portfolios shall be entitled to be subrogated to the rights of State
Street with respect to any claims against a Foreign Sub-Custodian as a
consequence of any such loss, damage, cost, expense, liability or claim if and
to the extent that the Fund and any applicable Portfolios have not been made
whole for any such loss, damage, cost, expense, liability or claim.
3.Y.11. Tax Law. State Street shall have no responsibility or liability
for any obligations now or hereafter imposed on the Fund, the Portfolios or
State Street as custodian of the Portfolios by the tax law of the United States
or of any state or political subdivision thereof unless and to the extent that
such liability or obligation arises due to State Street's negligence,
misfeasance or misconduct. It shall be the responsibility of each Fund to notify
State Street of the obligations imposed on the Fund with respect to its
Portfolios or State Street as custodian of the Portfolios by the tax law of
countries other than those mentioned in the above sentence, including
responsibility for withholding and other taxes, assessments or other
governmental charges, certifications and
9
governmental reporting. The sole responsibility of State Street with regard to
such tax law shall be to use reasonable efforts to assist the Fund with respect
to any claim for exemption or refund under the tax law of countries for which
the Fund has provided such information.
3.Y.12. Liability of Custodian. Except as may arise from State Street's
own negligence, misfeasance or willful misconduct or the negligence, misfeasance
or willful misconduct of a Foreign Sub-Custodian, State Street shall be without
liability to the Fund for any loss, liability, claim or expense to the extent
that such loss, liability, claim or expense results directly from or is caused
directly by Country Risk. State Street shall be liable for the acts or omissions
of a Foreign Sub-Custodian to the same extent as set forth with respect to
sub-custodians generally in the Contract and, regardless of whether assets are
maintained in the custody of a Foreign Sub-Custodian or a Foreign Securities
System, State Street shall not be liable for any loss, damage, cost, expense,
liability or claim resulting from nationalization, expropriation, currency
restrictions, or acts of war or terrorism, or any other loss where the
Sub-Custodian has otherwise acted with reasonable care.
IV. Except as specifically superseded or modified herein, the terms and
provisions of the Contract shall continue to apply with full force and
effect. In the event of any conflict between the terms of the Contract
prior to this Amendment and this Amendment, the terms of this Amendment
shall prevail. If State Street is delegated the responsibilities of
Foreign Custody Manager pursuant to the terms of Section 3, Paragraph Q
hereof, in the event of any conflict between the provisions of Section 3,
Paragraph Q and Section 3, Paragraph Y hereof, the provisions of Section
3, Paragraph Q shall prevail.
IN WITNESS WHEREOF, each of the parties has caused this Amendment to be
executed in its name and behalf by its duly authorized representative as of the
date first above written.
STATE STREET BANK and TRUST COMPANY
By: ______________________________________
Name:
Title:
PACIFIC INVESTMENT MANAGEMENT COMPANY, a Limited liability company
By: ______________________________________
Name:
Title:
PIMCO [_____________________________]
By: ______________________________________
Name:
Title:
PIMCO [_____________________________]
10
By: ____________________________________
Name:
Title:
11
SCHEDULE A
STATE STREET GLOBAL CUSTODY NETWORK
SUBCUSTODIANS
Country Subcustodian
Argentina Citibank, N.A.
Australia Westpac Banking Corporation
Austria Erste Bank der Osterreichischen
Sparkassen AG
Bahrain HSBC Bank Middle East
(as delegate of The Hongkong and
Shanghai Banking Corporation Limited)
Bangladesh Standard Chartered Bank
Belgium Fortis Bank nv-sa
Bermuda The Bank of Bermuda Limited
Bolivia Citibank, N. A.
Botswana Barclays Bank of Botswana Limited
Brazil Citibank, N.A.
Bulgaria ING Bank N.V.
Canada State Street Trust Company Canada
Chile Citibank, N.A.
People's Republic The Hongkong and Shanghai
of China Banking Corporation Limited,
Shanghai and Shenzhen branches
Colombia Cititrust Colombia S.A.
Sociedad Fiduciaria
Costa Rica Banco BCT S.A.
Croatia Privredna Banka Zagreb d.d
Cyprus The Cyprus Popular Bank Ltd.
Czech Republic Ceskoslovenska Obchodni
Banka, A.S.
Denmark Den Danske Bank
Ecuador Citibank, N.A.
STATE STREET GLOBAL CUSTODY NETWORK
SUBCUSTODIANS
Country Subcustodian
Egypt Egyptian British Bank S.A.E.
(as delegate of The Hongkong
and Shanghai Banking Corporation
Limited)
Estonia Hansabank
Finland ▇▇▇▇▇▇ Bank Plc.
France BNP Paribas, S.A.
Germany Dresdner Bank AG
Ghana Barclays Bank of Ghana Limited
Greece National Bank of Greece S.A.
Hong Kong Standard Chartered Bank
Hungary Citibank Rt.
Iceland Icebank Ltd.
India Deutsche Bank AG
The Hongkong and Shanghai
Banking Corporation Limited
Indonesia Standard Chartered Bank
Ireland Bank of Ireland
Israel Bank Hapoalim B.M.
Italy BNP Paribas, Italian Branch
Ivory Coast Societe Generale de Banques
en Cote d'Ivoire
Jamaica Scotiabank Jamaica Trust and Merchant
Bank Ltd.
Japan The Fuji Bank, Limited
The Sumitomo Bank, Limited
Jordan HSBC Bank Middle East
(as delegate of The Hongkong and
Shanghai Banking Corporation Limited)
Kenya Barclays Bank of Kenya Limited
STATE STREET GLOBAL CUSTODY NETWORK
SUBCUSTODIANS
Country Subcustodian
Republic of Korea The Hongkong and Shanghai Banking
Corporation Limited
Latvia A/s Hansabanka
Lebanon HSBC Bank Middle East
Shanghai Banking Corporation Limited)
Lithuania Vilniaus Bankas AB
Malaysia Standard Chartered Bank
Malaysia Berhad
Mauritius The Hongkong and Shanghai
Banking Corporation Limited
Mexico Citibank Mexico, S.A.
Morocco Banque Commerciale du Maroc
Namibia Standard Bank Namibia Limited -
Netherlands Fortis Bank (Nederland) N.V.
New Zealand ANZ Banking Group
(New Zealand) Limited
Norway Christiania Bank og
Kreditkasse ASA
Oman HSBC Bank Middle East
(as delegate of The Hongkong and
Shanghai Banking Corporation Limited)
Pakistan Deutsche Bank AG
Palestine HSBC Bank Middle East
(as delegate of The Hongkong and
Shanghai Banking Corporation Limited)
Panama BankBoston, N.A.
Peru Citibank, N.A.
Philippines Standard Chartered Bank
Poland Citibank (Poland) S.A.
Portugal Banco Comercial Portugues
Qatar HSBC Bank Middle East
(as delegate of The Hongkong and
Shanghai Banking Corporation Limited)
STATE STREET GLOBAL CUSTODY NETWORK
SUBCUSTODIANS
Country Subcustodian
Romania ING Bank N.V.
Russia Credit Suisse First Boston AO - Moscow
(as delegate of Credit Suisse
First Boston - Zurich)
Singapore The Development Bank
of Singapore Limited
Slovak Republic Ceskoslovenska Obchodni Banka, A.S.
Slovenia Bank Austria Creditanstalt d.d. - Ljubljana
South Africa Standard Bank of South Africa Limited
Spain Banco Santander Central Hispano S.A.
Sri Lanka The Hongkong and Shanghai
Banking Corporation Limited
Swaziland Standard Bank Swaziland Limited
Sweden Skandinaviska Enskilda Banken
Switzerland UBS AG
Taiwan - R.O.C. Central Trust of China
Thailand Standard Chartered Bank
Trinidad & Tobago Republic Bank Limited
Tunisia Banque Internationale Arabe de Tunisie
Turkey Citibank, N.A.
Ukraine ING Bank Ukraine
United Kingdom State Street Bank and Trust Company,
London Branch
Uruguay BankBoston, N.A.
Venezuela Citibank, N.A.
Vietnam The Hongkong and Shanghai
Banking Corporation Limited
Zambia Barclays Bank of Zambia Limited
Zimbabwe Barclays Bank of Zimbabwe Limited
SCHEDULE B
STATE STREET
GLOBAL CUSTODY NETWORK
DEPOSITORIES OPERATING IN NETWORK MARKETS
Country Depositories
Argentina Caja de Valores S.A.
Australia Austraclear Limited
Reserve Bank Information and
Transfer System
Austria Oesterreichische Kontrollbank AG
(Wertpapiersammelbank Division)
Belgium Caisse Interprofessionnelle de Depots et
de Virements de Titres, S.A.
Banque Nationale de Belgique
Brazil Companhia Brasileira de Liquidacao e
Custodia
Bulgaria Central Depository AD
Bulgarian National Bank
Canada Canadian Depository for Securities Limited
Chile Deposito Central de Valores S.A.
People's Republic Shanghai Securities Central Clearing &
of China Registration Corporation
Shenzhen Securities Central Clearing Co., Ltd.
Colombia Deposito Centralizado de Valores
Costa Rica Central de Valores S.A.
Croatia Ministry of Finance
National Bank of Croatia
Sredisnja Depozitarna Agencija d.d.
Czech Republic Stredisko cennych papiru
Czech National Bank
Denmark Vaerdipapircentralen (Danish
Securities Center)
Egypt Misr for Clearing, Settlement,
and Depository
STATE STREET
GLOBAL CUSTODY NETWORK
DEPOSITORIES OPERATING IN NETWORK MARKETS
Country Depositories
Estonia Eesti Vaartpaberite Keskdepositoorium
Finland Finnish Central Securities
Depository
France Societe Interprofessionnelle pour la Compensation
Germany Clearstream Banking AG, Frankfurt
Greece Bank of Greece,
System for Monitoring Transactions in
Securities in Book-Entry Form
Central Securities Depository
(Apothetirion Titlon AE)
Hong Kong Central Clearing and Settlement System
Central Moneymarkets Unit
Hungary Kozponti Elszamolohaz es Ertektar
(Budapest) Rt. (KELER)
India National Securities Depository Limited
Central Depository Services India Limited
Reserve Bank of India
Indonesia Bank Indonesia
PT Kustodian Sentral Efek Indonesia
Ireland Central Bank of Ireland
Securities Settlement Office
Israel Tel Aviv Stock Exchange Clearing
House Ltd. (TASE Clearinghouse)
Italy Monte Titoli S.p.A.
Banca d'Italia
Ivory Coast Depositaire Central - Banque de Reglement
Jamaica Jamaica Central Securities Depository
Japan Japan Securities Depository Center (JASDEC)
Bank of Japan Net System
Kenya Central Bank of Kenya
STATE STREET
GLOBAL CUSTODY NETWORK
DEPOSITORIES OPERATING IN NETWORK MARKETS
Country Depositories
Republic of Korea Korea Securities Depository
Latvia Latvian Central Depository
Lebanon Custodian and Clearing Center of
Financial Instruments for Lebanon
and the Middle East (Midclear) ▇.▇.▇.
Banque du Liban
Lithuania Central Securities Depository of Lithuania
Malaysia Malaysian Central Depository Sdn. Bhd.
Bank Negara Malaysia,
Scripless Securities Trading and Safekeeping
System
Mauritius Central Depository and Settlement Co. Ltd.
Bank of Mauritius
Mexico S.D. INDEVAL
(Instituto para el Deposito de Valores)
Morocco Maroclear
Netherlands Nederlands Centraal Instituut voor
Giraal Effectenverkeer B.V. (NECIGEF)
New Zealand New Zealand Central Securities
Depository Limited
Norway Verdipapirsentralen (Norwegian Central
Securities Depository)
Oman Muscat Depository & Securities
Registration Company, SAOC
Pakistan Central Depository Company of Pakistan Limited
State Bank of Pakistan
Palestine Clearing Depository and Settlement, a
department of the Palestine Stock Exchange
Peru Caja de Valores y Liquidaciones, Institucion de
Compensacion y Liquidacion de Valores S.A
Philippines Philippine Central Depository, Inc.
Registry of Scripless Securities
(▇▇▇▇) of the Bureau of Treasury
STATE STREET
GLOBAL CUSTODY NETWORK
DEPOSITORIES OPERATING IN NETWORK MARKETS
Country Depositories
Poland National Depository of Securities
(Krajowy Depozyt Papierow
Wartosciowych SA)
Central Treasury Bills Registrar
Portugal Central de Valores Mobiliarios
Qatar Central Clearing and Registration
(CCR), a department of the Doha
Securities Market
Romania National Securities Clearing,
Settlement and Depository Company
Bucharest Stock Exchange Registry
Division
National Bank of Romania
Singapore Central Depository (Pte) Limited
Monetary Authority of Singapore
Slovak Republic Stredisko cennych papierov
National Bank of Slovakia
Slovenia Klirinsko Depotna ▇▇▇▇▇▇ ▇.▇.
South Africa Central Depository Limited
Share Transactions Totally
Electronic (STRATE) Ltd.
Spain Servicio de Compensacion y
Liquidacion de Valores, S.A.
Banco de Espana,
Central de Anotaciones en Cuenta
Sri Lanka Central Depository System
(Pvt) Limited
Sweden Vardepapperscentralen VPC AB
(Swedish Central Securities
Depository)
Switzerland SegaIntersettle AG (SIS)
Taiwan - R.O.C. Taiwan Securities Central Depository
Co., Ltd.
Thailand Thailand Securities Depository
Company Limited
STATE STREET
GLOBAL CUSTODY NETWORK
DEPOSITORIES OPERATING IN NETWORK MARKETS
Country Depositories
Tunisia Societe Tunisienne
Interprofessionelle pour la
Compensation et de Depots des
Valeurs Mobilieres
Turkey Takas ve Saklama Bankasi A.S.
(TAKASBANK)
Central Bank of Turkey
Ukraine National Bank of Ukraine
United Kingdom Central Gilts Office and
Central Moneymarkets Office
Venezuela Banco Central de Venezuela
Zambia ▇▇▇▇ Central Shares Depository
Limited
Bank of Zambia
TRANSNATIONAL
Euroclear
Clearstream Banking AG
SCHEDULE C
MARKET INFORMATION
Publication/Type of Information Brief Description
------------------------------- -----------------
(Frequency)
The Guide to Custody in World Markets An overview of safekeeping and
-------------------------------------
(annually) settlement practices and procedures
in each market in which State Street
Bank and Trust Company offers
custodial services.
Global Custody Network Review Information relating to the
-----------------------------
(annually) operating history and structure of
depositories and subcustodians
located in the markets in which
State Street Bank and Trust Company
offers offers custodial services,
including transnational
depositories.
Global Legal Survey With respect to each market in which
-------------------
(annually) State Street Bank and Trust Company
offers custodial services, opinions
relating to whether local law
restricts (i) access of a fund's
independent public accountants to
books and records of a Foreign
Sub-Custodian or Foreign Securities
System, (ii) the Fund's ability to
recover in the event of bankruptcy
or insolvency of a Foreign
Sub-Custodian or Foreign Securities
System, (iii) the Fund's ability to
recover in the event of a loss by a
Foreign Sub-Custodian or Foreign
Securities System, and (iv) the
ability of a foreign investor to
convert cash and cash equivalents to
U.S. dollars.
Subcustodian Agreements Copies of the subcustodian contracts
-----------------------
(annually) into with each subcustodian in the
markets in which ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ and Trust
Company has entered Company offers
subcustody services to its US mutual
fund clients.
Network Bulletins (weekly): Developments of interest to
investors in the markets in which
State Street Bank and Trust Company
offers custodial services.
Foreign Custody Advisories (as
necessary): With respect to markets in which
State Street Bank and Trust Company
offers custodial services which
exhibit special custody risks,
developments which may impact State
Street's ability to deliver expected
levels of service.