FUND DIRECT CUSTODY AGREEMENT
FOR CITIBANK, N.A., SUBSIDIARIES and AFFILIATES
and
CUSTODIAL TRUST COMPANY
TABLE OF CONTENTS
SECTION PAGE
PREAMBLE............................................................... 1
1. DEFINITIONS............................................................ 2
2. APPOINTMENT OF CUSTODIAN............................................... 4
3. CITIBANK AFFILIATES.................................................... 5
4. PROPERTY ACCEPTED...................................................... 5
5. REPRESENTATIONS AND WARRANTIES......................................... 6
6. IDENTIFICATION AND SEGREGATION OF ASSETS............................... 7
7. PERFORMANCE BY THE CUSTODIAN........................................... 8
(a) Transactions not requiring Instructions....................... 8
(b) Transactions requiring Instructions........................... 10
8. REGISTRATION........................................................... 11
9. CLIENT DEPOSIT ACCOUNT PAYMENTS........................................ 11
10. CUSTODY ACCOUNT AND DEPOSIT ACCOUNT PROCEDURES......................... 12
11. REPORTS, RECORDS AND ACCESS............................................ 12
12. USE OF AGENTS, CLEARANCE SYSTEMS AND DEPOSITORIES...................... 14
13. CITICORP ORGANIZATION INVOLVEMENT...................................... 16
14. SCOPE OF RESPONSIBILITY................................................ 16
15. INDEMNITY.............................................................. 19
16. LIEN................................................................... 20
17. FEES AND EXPENSES...................................................... 21
18. AMENDMENT.............................................................. 21
19. TERMINATION............................................................ 21
20. ASSIGNMENT............................................................. 22
21. DISCLOSURE............................................................. 22
22. NOTICES................................................................ 22
23. GOVERNING LAW AND JURISDICTION......................................... 23
24. PROVISION OF INFORMATION REGARDING PROPERTY HELD OUTSIDE THE
UNITED STATES.......................................................... 23
SIGNATURES............................................................. 24
COUNTRY SELECTIONS (Exhibit A)......................................... 26
DIRECT CUSTODY AGREEMENT
THIS DIRECT CUSTODY AGREEMENT is made as of October 1, 1993 by and among
Citibank, N.A. (the "Bank") acting through its branch or office at
______________ as principal on its own behalf and as agent, with respect to
signature, on behalf of each of the Citibank affiliates listed on the attached
Exhibit A and selected by the Client in writing (each a "Citibank Affiliate",
which expression shall include any other Citibank affiliates as agreed in
writing between the Client as hereinafter defined and the Bank from time to time
and any branch or office of Citibank, N.A. whether or not having separate legal
personality or corporate existence as therein listed or as agreed as aforesaid)
and Custodial Trust Company (the "Client") having its office or principal place
of business at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇.
W I T N E S S E T H :
THAT WHEREAS, the Client wishes to open and maintain a custody account or
accounts with the Bank and certain Citibank Affiliates (if any) listed in the
attached Exhibit A to hold certain assets in accordance with this Custody
Agreement and on such other terms and conditions as may be set forth in the
Schedules attached hereto (if any) or as may be set forth in operating
procedures upon which Client and Custodian may from time to time agree in
writing (the Bank and the Citibank Affiliates selected by the Client from time
to time are and each of them is hereafter referred to as the "Custodian").
WHEREAS, the Custodian wishes to establish such custody account or accounts
under the terms and conditions of this Custody Agreement and the Schedules
attached hereto, if any (this Custody Agreement and such Schedules as both may
be amended from time to time, collectively, the "Agreement" or "Custody
Agreement");
NOW, THEREFORE, in consideration of the premises and of the agreements
hereinafter set forth, the parties agree as follows:
1. DEFINITIONS
"Authorized Person(s)" means (i) any officers, employees or agents of the
Client as have been authorized by notice in writing to the Custodian to act on
its behalf in the performance of any acts, discretions or duties under this
Agreement, or (ii) any other person, firm or company holding a duly executed
Power-of-Attorney from the Client which is in a form acceptable to the
Custodian.
"Citicorp Organization" means Citicorp and any company of which Citicorp
is, now or hereafter, directly or indirectly a shareholder.
"Clearance System" means Cedel, S.A., the Euro-clear System, the First
Chicago Clearing Centre, The Depository Trust Company and such other clearing
agency, settlement system or depository as may from time to time be used in
connection with transactions relating to securities, and any depository or
clearing agency for any of the foregoing.
"Instructions" means instructions from any Authorized Person received by
the Custodian, orally, via telephone, telex (whether tested or untested),
facsimile transmission, bank wire or other teleprocess or electronic instruction
system acceptable to the Custodian which have been transmitted with testing or
authentication on such terms and conditions as the Custodian may specify in
writing, provided that:
(i) Instructions delivered to the Custodian by telephone shall be promptly
confirmed in writing by an Authorized Person (which confirmation if
the Custodian agrees may bear a facsimile signature) although the
Custodian may, in its absolute
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discretion, act upon such Instructions before any confirmation is
received and shall be fully protected in so acting even in the absence
of any such confirmation if such instructions are reasonably believed
by Custodian to be genuine and to have been given by an Authorized
Persons;
(ii) Instructions shall continue in full force and effect until cancelled
or superseded;
(iii)if any Instructions are unclear and/or ambiguous, the Custodian may in
its absolute discretion act upon what is reasonably believes such
instructions to be or without any liability on its part, refuse to
execute such Instructions until any ambiguity or conflict has been
resolved to its satisfaction;
(iv) Instructions shall be provided and carried out subject to the
operating procedures, marketing practices, rules and regulation of any
relevant stock exchange, Clearance System, depository or market where
they are to be executed, and can be acted upon by the Custodian only
during banking hours and on banking days when the applicable financial
markets are open for business. All such Instructions shall be carried
out subject to the local laws, regulations, customs, procedures and
practices applicable at the place of performance of such Instructions;
and to which the Custodian is otherwise subject and shall be governed
by and construed in accordance with the local law applicable;
(v) Instructions are to be given in the English language and the Custodian
shall be entitled to rely upon the continued authority of any
Authorized Person to give the same until the Custodian receives notice
from the Client to the contrary; and the Custodian shall be entitled
to rely upon any Instructions it reasonably believes to have been
given by any Authorized Person.
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"Investment Company" means any investment company registered under the
Investment Company Act;
"Investment Company Act" means the U.S. Investment Company Act of 1940, as
amended from time to time;
"Person" means any person, firm, company, corporation, government, state or
agency thereof or any association or partnership (whether or not having separate
legal personality) of two or more of the foregoing;
"Property" means as the context requires, any Securities, precious metals,
cash or any other property held by the Custodian under the terms of this
Agreement;
"Securities" means bonds, debentures, notes, stocks, shares, units or other
securities and all moneys, rights or property which may at any time accrue or be
offered (whether by way of bonus, redemption, preference, option or otherwise)
in respect of any of the foregoing or evidencing or representing any other
rights or interests therein (including, without limitation, any of the foregoing
not constituted, evidenced or represented by a certificate or other document but
an entry in the books or other permanent records of the issuer, a trustee or
other fiduciary thereof, or a Clearance System).
2. APPOINTMENT OF CUSTODIAN
The Client authorizes the Custodian (as defined above) to establish on the
terms of this Agreement a custody account or accounts (the "Custody Account") in
the name of the Client, for the deposit of any Securities and other Property
(apart from cash) from time to time received by the Custodian for the account of
the Client, and a deposit account or accounts (the "Client Deposit Account") in
the name of the Client, for the deposit of funds in any currency from time
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to time received by the Custodian for the account of the Client, whether by way
of deposit or arising out of or in connection with any Securities, or other
Property in the Custody Account.
3. CITIBANK AFFILIATES
The Client authorizes and directs the opening of and the holding of all or
any part of the Property in such further accounts forming part of the Custody
Account and the Client Deposit Account, as the case may be, with each Citibank
Affiliate as selected by the Client in Exhibit A hereof. In any case where
Custodian is a Citibank Affiliate, Client shall execute such further documents
and provide such materials and information as may be reasonably requested by
such Citibank Affiliate to facilitate the opening and maintenance of the Custody
Account and Client Deposit Account with such Citibank Affiliate. The Client
hereby understands and agrees that the opening of and the holding of all or any
part of the Property in such accounts and the performance of any activities
contemplated herein are subject to the local laws, regulations, customs,
procedures and practices to which such Citibank Affiliate is subject and such
further terms and conditions as may be referred to in the Schedules attached
hereto (if any) or as may be in operating procedures upon which Client and
Custodian may from time to time agree upon in writing. The Client understands
and agrees that obligations and duties hereunder of any Citibank Affiliate
selected by the Client shall be performed only by such selected Citibank
Affiliate, and shall not be deemed obligations or duties of any other member of
the Citibank Organization.
4. PROPERTY ACCEPTED
The Custodian agrees to accept for custody in the Custody Account at its
discretion and subject to the conditions set forth herein:
(i) Securities; and/or
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(ii) any other form of Property (apart from cash) acceptable to the
Custodian and capable of deposit under the terms of the Agreement.
The Custodian agrees to accept for custody in the Client Deposit Account
any cash in any currency (which shall if necessary be credited by the Custodian
to different accounts in the currencies concerned).
5. REPRESENTATIONS AND WARRANTIES
(A) The Client hereby represents and warrants to Custodian that:
(a) during the term of this Agreement it (and any person on whose behalf
it may act as agent or otherwise in a representative capacity) has and
will continue to have full capacity and authority to enter into this
Agreement and to carry out all the transactions contemplated herein,
and has taken and will continue to take all action (including, without
limitation the obtaining of all necessary governmental consents in any
applicable jurisdiction and customer consents (where applicable)) to
authorize the execution, delivery and performance of this Agreement;
and
(b) the resolutions of its Board of Directors or other managing body
authorizing the execution, delivery and performance of this Agreement
have been obtained and that these remain and will continue to remain
in full force and effect as of the date hereof and during the term of
this Agreement without revocation or amendment.
(B) If Custodian is a Citibank Affiliate outside the United States, it hereby
represents and warrants to the Client that:
(a) (i) it is a branch of Citibank, N.A., a national banking association
organized under the laws of the United States or (ii) it is an
"eligible foreign custodian" as
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that term is defined in Rule 17f-5 ("Rule 17f-5") promulgated under
the Investment Company Act, and that it shall promptly inform the
Bank, and the Bank shall thereafter promptly inform the Client, in the
event that there appears to be a substantial likelihood that it will
cease to so qualify under Rule 17f-5 as currently in effect or as
hereafter amended, or if in fact it does cease to qualify for any
reason;
(b) Property held in the Custody Account shall not be subject to any
right, charge, security interest, lien, or claim of any kind in favor
of such Citibank affiliate or any of its creditors except a claim of
payment for the safe custody and administration of such Property
pursuant to this Agreement;
(c) beneficial ownership of Property held in the Custody Account shall be
freely transferable without the payment of money or value other than
for safe custody or administration; and
(d) it shall maintain adequate insurance of Property held under the terms
of this Agreement.
6. IDENTIFICATION AND SEGREGATION OF ASSETS
With respect to Property in the Custody Account the Custodian shall
identify as belonging to the Client all Securities and other non-cash Property
which are held in the Custody Account and shall identify on Custodian's books
and records all Property held in the Accounts as belonging to the Client. All
Property in the Accounts which has been identified to Custodian as belonging to
a customer of Client which is an Investment Company shall be further identified
on Custodian's books and records as belonging to such Investment Company.
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7. PERFORMANCE BY THE CUSTODIAN
(a) Transactions not requiring Instructions
In the absence of contrary Instructions, the Custodian is authorized by the
Client to carry out the following transactions relating to the Property without
Instructions from the Client:
(i) sign any affidavits, certificates of ownership or other certificates
relating to the Property which may be required under any laws or
regulations made by any tax authority or any other regulatory
authority in any relevant jurisdiction, whether governmental or
otherwise, and whether relating to ownership, income tax or capital
gains, or any other tax, duty or levy (and the Client further agrees
to ratify and to confirm or to do such things as may be necessary to
complete or evidence the Custodian's actions under this Section
7(a)(i) or otherwise under the terms of this Agreement);
(ii) (a) collect and receive, for the account of the Client, all income and
other payments and distributions in respect of the Property, and (in
the absence of contrary Instructions) credit the same to the Client
Deposit Account;
(b) take any action necessary and proper in connection with the
receipt of income and other payments and distributions as are referred
to in Section 7(a)(ii)(a) above, including (without limitation) the
presentation of coupons and other interest items;
(iii)(a) receive and hold for the account of the Client any capital
arising out of or in connection with the Property whether as a result
of its being called or redeemed or otherwise becoming payable and (in
the absence of contrary Instructions) credit the same to the Client
Deposit Account;
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(b) take action necessary and proper in connection with the receipt of
any capital as is referred to in Section 7(a)(iii)(a) above, including
(without limitation) the presentation for payment of any property
which becomes payable as a result of its being called or redeemed or
otherwise becoming payable and the endorsement for collection of
checks, drafts and other negotiable instruments;
(iv) receive and hold for the account of the Client all Securities received
by the Custodian as a result of a stock dividend, share subdivision or
reorganization, capitalization of reserves or otherwise;
(v) exchange interim or temporary receipts for definitive certificates,
and old or overstamped certificates for new certificates;
(vi) make cash disbursements for any expenses incurred in handling the
Property and for similar items in connection with the Custodian's
duties under this Agreement, and, (in the absence of contrary
Instructions) debit the same to the Client Deposit Account; and
(vii)deliver to the Client all notices of meetings, proxies, proxy
materials and other announcements which Custodian receives regarding
Securities in the Custody Account and, prior to delivering them to the
Client, cause all such proxies relating to Securities which are not
registered in the name of Client, to be executed by the registered
holder of such Securities, without indication of the manner in which
such Securities are to be voted; and promptly notify and forward to
the Client all notices, reports and other financial information
relating to the Property when received by the Custodian, and promptly
seek Instructions as to any action to be taken in connection
therewith.
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(b) Transactions requiring Instructions
The Custodian is authorized by the Client to carry out the following
transactions relating to Securities and other non-cash Property upon receipt of
specific Instructions;
(i) deliver Property sold by the Client against payment or as may be
specified by the Client in its Instructions;
(ii) against receipt thereof, make payment for and to receive Property
purchased by the Client, such payment to be made by the Custodian in
accordance with the prevailing rules, operating procedures or market
practice on any relevant stock exchange, Clearance System or market,
where or through which such payment is to be made, or as may be
specified by the Client in its Instructions;
(iii)deal with bonus or scrip issues, warrants and other similar interests
offered to or received by the Custodian (or its nominee company or
other agents) or to handle proxy forms, but only as may be specified
by the Client in its Instructions;
(iv) exercise any voting rights attached to Securities, but only as may be
specified by the Client in its Instructions;
(v) except as otherwise provided herein, to deliver or dispose of the
Property only as may be specified by the client in its Instructions;
and
(vi) insure the Property on the Client's behalf provided that the Client
makes available to the Custodian the cost of such insurance in advance
or authorizes the Custodian to debit such cost to the Client Deposit
Account or any other account of the Client with the Custodian.
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8. REGISTRATION
The Client agrees and understands that, except as may be specified by the
Client in its Instructions, Securities held in registered form shall be
registered as the Custodian may direct in the name of either the Custodian or
its nominee company or its agent in the jurisdiction where the Securities are
required to be registered or otherwise held. Where feasible, the Custodian will
arrange on written request by the Client for registration of Securities with the
issuer or its agent in the name of the Client or its nominee. The Client
understands and agrees, however, that the Custodian shall have discretion to
judge whether such direct registration is feasible.
9. CLIENT DEPOSIT ACCOUNT PAYMENTS
Except as may be otherwise provided herein, the Custodian shall make or
cause its nominee company or agents to make, payments from the Client Deposit
Account only:
(i) as provided in Section 7(b) above, in the connection with the purchase
of Property for the account of the Client and its delivery to the
Client, or its crediting to the Custody Account or other account of
the Client;
(ii) for the payment for the account of the Client of taxes, management or
supervisory fees, agents and other advisers' fees and distributions;
(iii)for payments to be made in connection with the conversion, exchange
or surrender of Property held in the Custody Account;
(iv) for other proper purposes as may be specified by the Client in its
Instructions; or
(v) upon the termination of this Agreement on the terms hereof,
PROVIDED THAT the payments referred to above do not exceed the funds available
in the Client Deposit Account at any time and that nothing in this Agreement
shall oblige the Custodian to extend credit, grant financial accommodation or
otherwise advance moneys to the Client for
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the purpose of meeting any such payments or part thereof or otherwise carrying
out any Instructions.
10. CUSTODY ACCOUNT AND DEPOSIT ACCOUNT PROCEDURES
Unless otherwise agreed to by the Custodian and the Client, the Custodian
shall, or shall instruct any other entity authorized to hold Property in
accordance with Section 12 hereof to, receive or deliver Securities and credit
or debit the Custody Account or Client Deposit Account, as the case may be, only
in accordance with proper Instructions or as otherwise specifically provided in
this Agreement. Any proceeds from the sale or exchange of Property purchased or
acquired in the Custody Account shall be credited to the Client Deposit Account
on the date such proceeds or such Property, as the case may be, are actually
received by the Custodian.
11. REPORTS, RECORDS AND ACCESS
(a) The Custodian shall supply to the Client from time to time as mutually
agreed upon between them, but no less frequently than monthly (i) a
written statement of account with respect to all Property in the
Custody Account and the Client Deposit Account, and (ii) a written
statement of all transactions in the Accounts, including all transfers
to and from the Accounts. In the event that the Client does not inform
the Custodian in writing of any exceptions or objections within 30
days after the client's receipt of such statement, the Client shall be
deemed to have approved such statement.
(b) If the Custodian has in place a system for providing telecommunication
access or other means of direct access by customers to the Custodian's
reporting system for property in the custody accounts or the client
deposit accounts, then, upon mutual agreement and arrangement between
the Client and the Custodian, the Custodian
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shall provide the Client with such instructions and passwords and/or
access codes as may be necessary in order for the Client to have such
direct access through the Client's terminal device.
(c) Except as otherwise provided in this Agreement, during the Custodian's
regular banking hours and upon receipt of reasonable notice from the
Client, any officer or employee of the Client, any independent
accountant(s) selected by the Client or any customer of Client which
is an Investment Company, any officer or other representative of such
a customer of Client designated from time to time for such purpose in
writing by Client and any person designated by any regulatory
authority having jurisdiction over the Client shall be entitled to
examine on the Custodian's premises, Property held by the Custodian on
its premises and the Custodian's records regarding all Property held
hereunder deposited with entities authorized to hold Property in
accordance with Section 12 hereof, but only upon the Client's
furnishing the Custodian with Instructions to that effect, provided
-------- such examination shall be consistent with the Custodian's
obligations of confidentiality to other parties and provided, further,
that any such examination conducted by independent accountant(s)
selected by any such Investment Company or conducted by any such
officer or other representative of such an Investment Company shall be
limited to Property, and Custodian's records regarding Property,
belonging to such Investment Company. The Custodian's cost and
expenses in facilitating such examinations and providing such reports
and documents, including but not limited to the cost to the Custodian
of providing personnel in connection with examinations, shall be borne
by the Client or by the
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person or agencies making such examinations or receiving such reports
or documents, provided that such costs and expenses shall not be
deemed to include the Custodian's costs in providing to the Client (i)
the "single audit report" (if any) of the independent certified public
accountants engaged by the Custodian; and (ii) such reports and
documents as this Agreement contemplates that the Custodian shall
furnish routinely to the Client.
The Custodian shall supply to the Client from time to time, written
operational procedures which shall govern the day to day operations of the
account. Such operating procedures are hereby incorporated herein by reference.
12. USE OF AGENTS, CLEARANCE SYSTEMS AND DEPOSITORIES
The Client agrees and understands that:
(i) subject to 120 days' prior written notice from Custodian to Client in
the case of the duty to maintain custody of the Client's property, and
Custodian's function under this Agreement in that regard, the
Custodian is authorized, subject to applicable laws, rules and
regulations to appoint agents (including any member of the Citicorp
Organization) to perform any of the duties of the Custodian under this
Agreement, and the Custodian may delegate to any agent so appointed
any of its functions under this Agreement, including (without
limitation) the collection of all payments due on the Property and
whether of an income or a capital nature;
(ii) in selecting and appointing agents the Custodian shall use reasonable
care to ensure that it appoints only reportedly competent persons
provided that the Custodian shall not be responsible (except as to the
negligence in the selection of
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such agents) for the performance by such agents of any of the duties
delegated to them under this Agreement;
(iii)if the Custodian appoints any agent pursuant to Section 12(i) above,
it shall be entitled to pay all normal remuneration to such agent for
the account of the Client;
(iv) subject to the Client's prior approval, in the case of Property which
has been identified to Custodian as belonging to a customer of Client
which is an Investment Company, subject also to notice by the Client
that the approval of such Investment Company pursuant to said Rules
17f-4 or 17f-5, as applicable, has been obtained, the Custodian may
deposit any Property in any Clearance System deemed appropriate by the
Custodian, and any Property so held shall be subject to the rules and
operating procedures of such Clearance System and any applicable laws
and regulations whether of a governmental authority or otherwise;
provided that in the case of Property which has been identified to
Custodian as belonging to a customer of Client which is an Investment
Company any Clearance System in the United States be one which is
permitted to perform services for Investment Companies under Rule
17f-4 promulgated under the Investment Company Act; and provided
further that in the case of Property which has been identified to
Custodian as belonging to a customer of Client which is an Investment
Company any Clearance System outside the United States be one which
meets the terms of subdivision (c)(2)(iii) or (iv) of Rule 17f-5
promulgated under the Investment Company Act or is otherwise
acceptable to the Securities and Exchange Commission to perform
services for Investment Companies.
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13. CITICORP ORGANIZATION INVOLVEMENT
(a) Subject to applicable laws, the Client hereby authorizes the Custodian
without the need for the Custodian to obtain the Client's prior consent:
(i) when acting on Instructions from the Client, to purchase and sell
Securities or any other Property from and to the Custodian or any
other member of the Citicorp Organization and through any member of
the Citicorp Organization, and from and to any other client of the
Custodian; and
(ii) to obtain and keep, without being liable to account to the Client, any
commission payable by any third party or any other member of the
Citicorp Organization in connection with dealings arising out of or in
connection with the Custody Account and/or the Client Deposit Account.
(b) The Client agrees and understands that if the Custodian, acting on
Instructions from the Client arranges for investment in the name of the
Custodian (but for the account of the Client) in any Securities or any other
Property, held, issued, or managed by any member of the Citicorp Organization,
then such member of the Citicorp Organization may retain a profit (other than
the charges, commissions, and fees payable by the Client under this Agreement)
without being liable to account to the Client for such profit.
(c) The Client agrees and understands that the Custodian may have banking
relationships with companies whose Securities or any other Property are held in
the Client Custody Account and/or Client Deposit Account or which are purchased
and sold for the Custody Account and/or Client Deposit Account.
14. SCOPE OF RESPONSIBILITY
The Client agrees and understands that:
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(i) subject to the terms hereof, the Custodian shall use all reasonable
care in the performance of its duties under this Agreement and shall
exercise the same standard of care that it exercises over its own
assets in the safekeeping, handling, servicing and disposition of the
Property, but shall not be responsible for any loss or damages
suffered by the Client or a customer of the Client as a result of the
Custodian or its agents performing such duties unless the same results
from an act of negligence, bad faith or willful misfeasance on the
part of the Custodian or reckless disregard of its duties under this
Agreement, in which event the liability of the Custodian in connection
with any Property shall be limited to direct damages resulting from
such negligence, bad faith, or willful default.
(ii) upon receipt of each and every transaction advice and/or statement of
account supplied to it by the Custodian pursuant to Section 11(a)
hereof, the Client shall examine the same and notify the Custodian
within thirty (30) days of Client's receipt of any such advice or
statement of any discrepancy between Instructions given and the
situation shown therein and/or of any other errors therein. In the
absence of any notification by the Client, the Custodian shall not (in
the absence of negligence or willful default on its own part) be
liable for the consequences of any discrepancy or error which was made
or existed during the period covered by the statement or the
transaction indicated by the advice, provided however, the Custodian
shall not (in the absence of negligence or willful default on its own
part) be liable for any such consequences during the period prior to
the receipt of any such notification;
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(iii) the Custodian or its nominee company or agents, as the case may be,
may (but without being under any duty or obligation) institute or
defend legal proceedings, or take or defend any other action arising
out of or in connection with the Property, provided that the Client
indemnifies the Custodian against any costs, charges and expenses
arising from such proceedings or other action and makes available to
the Custodian such security in respect of such costs, charges and
expenses as the Custodian in its absolute discretion deems necessary.
(iv) (a) the Custodian does not have any responsibility if for any reason
or cause beyond its control, including (without limitation)
nationalization, expropriation, currency restrictions, acts of war,
terrorism, insurrection, revolution, nuclear fusion, fission or acts
of God, the operation of the Custody Account and/or Client Deposit
Account and/or the Custodian's ability to carry out Instructions or
account to the Client is restricted, removed or subject to delay in
any way; provided that Custodian has taken reasonable measures to
prepare for any such event which are substantially in accordance with
those it is industry practice to take;
(b) Custodian does not guarantee the collection of any funds or other
property payable or distributable in respect of Property, nor shall it
be required to enforce any such collection, but Custodian shall
receive the proceeds of such collections as may be effected by it or
its agents in the ordinary course of its custodian business; all
collections of the Property and of any funds or other Property paid or
distributed in respect of the Property is made at the risk of the
Client.
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(c) the Custodian shall not be liable for any loss resulting from or
caused by its proper carrying out of any Instructions of the Client;
(v) the Client shall be responsible for all filings, tax returns and
reports on any transactions undertaken pursuant to this Agreement
which must be made to any relevant authority, whether governmental or
otherwise, and for the payment of all unpaid calls, taxes (including
without limitation any value added tax), imports, levies or duties due
on any principal or interest, or any other liability or payment
arising out of or in connection with the Property, and in so far as
the Custodian is under any obligation (whether of a governmental
nature or otherwise) to pay the same on behalf of the Client it may do
so out of any monies or assets held by the Custodian pursuant to the
terms of this Agreement;
(vi) the Custodian is not acting under this Agreement as investment manager
or investment adviser to the Client and the Custodian's duty is solely
to keep safe custody of the Property (with responsibility for the
selection, acquisition and disposal of the Property remaining with the
Client at all times); and
(vii) the Custodian may rely in the performance of its duties under this
Agreement and without liability on its part, upon any Instructions
reasonably believed by it to be genuine and to have been given by an
Authorized person.
15. INDEMNITY
The Client agrees to indemnify the Custodian and each of the Custodian's
nominees or other agents and to hold the Custodian and such nominees or agents
harmless, against all claims, actions, suits or proceedings at law or in equity
(and all costs and liabilities in connection
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therewith, including without limitation legal fees and disbursements) brought by
any third party and arising directly or indirectly:
(i) from the fact that the Property is registered in the name of or held
by the Custodian or any such nominees; or
(ii) without limiting the generality of Section 15(i) above, from any act
or thing which the Custodian or such nominee or agent allows, takes or
does or omits to allow, take or do in relation to the Property
pursuant to the terms of this Agreement or in accordance with any
Instructions reasonably believed by it to genuine and to have been
given by an Authorized Person;
PROVIDED THAT neither the Custodian nor its nominees shall be indemnified
against any liability arising out of the Custodian's or such nominee's own
willful misfeasance, bad faith, negligence or reckless disregard of its duties
under this Agreement.
16. LIEN
In addition to any general lien or other rights to which the Custodian may
be entitled under any applicable law, the Custodian shall have a general lien on
all Property held by it under this Agreement until the satisfaction of all
liabilities and obligations of the Client (whether actual or contingent) owed to
the Custodian hereunder for payment of the safe custody and administration of
the Property, including related expenses, provided, however, that any such lien
shall not extend to "government securities" as defined in Section 3(a)(42) of
the Securities Exchange Act of 1934. In the event of failure by the Client to
discharge any of such liabilities and obligations when due, the Custodian shall
be entitled to sell or otherwise realize any such Property and to apply any
moneys from time to time deposited with it under this Agreement and the proceeds
of such sale or realization in the satisfaction of such liabilities and
obligations; for
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the purpose of such application the Custodian may purchase with any moneys
standing to the credit of the Client Deposit Account such other currencies and
at such rate(s) of exchange as may be necessary to effect such application.
17. FEES AND EXPENSES
Without prejudice to any of its liabilities and obligations under this
Agreement, the Client agrees to pay to the Custodian from time to time such
fees/commission for its services pursuant to this Agreement as may be agreed
upon from time to time, in writing, by Custodian in its individual capacity and
Client, and the Custodian's proper out-of-pocket expenses incurred in the
performance of its duties hereunder (other than any overhead cost or expense
arising from such performance), including (but without limitation) all those
items referred to in Section 9 hereof and to hold the Custodian harmless from
any liability, loss or withholding, resulting from any taxes or other
governmental charges, and any expenses related thereto, which may be imposed, or
assessed in connection with or arising out of the Custody Account and/or the
Client Deposit Account. Subject to specific Instructions from the Client to the
contrary, the Custodian is further authorized to debit (as well after as before
the date of any termination pursuant to Section 19 hereof) any account of the
Client with the Custodian including (without limitation) the Client Deposit
Account for any amount owing to the Custodian from time to time under this
Agreement.
18. AMENDMENT
This Agreement shall not be amended except by writing signed by the parties
hereto.
19. TERMINATION
Either of the parties hereto may terminate this Agreement on giving not
less than 30 days written notice to the other party. Upon the expiration of such
notice period the Custodian shall,
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subject to Section 16 hereof, pay all cash in the Client Deposit Account to or
for the account of Client (at Client's expense) by banker's draft, wire
transfer, check or otherwise as may be agreed by Custodian and deliver all other
Property without undue delay to or for the account of Client (at Client's
expense) at such locations as Client and Custodian shall have agreed upon,
provided however, if the Custodian has effected any transaction on behalf of the
Client the contractual settlement date of which is or is likely to extend beyond
the expiration of such notice, then the Custodian shall be entitled in its
absolute discretion to close out or complete such transaction and to retain
sufficient funds from the Property for that purpose.
20. ASSIGNMENT
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns, provided, however,
that neither this Agreement nor any rights or obligations hereunder shall be
assignable by either party hereto without the prior written consent of the other
party hereto.
21. DISCLOSURE
The Client agrees and understands that the Custodian or its agent may
disclose information regarding the Custody Account and/or the Client Deposit
Account if required to do so by any court order or similar process in any
relevant jurisdiction or by order of an authority having power to do so over the
Custodian or its agents within the jurisdiction of such court or authority. 22.
NOTICES
Except as otherwise provided herein, all notices and other communications,
to be given by under this Agreement, shall be in writing in the English language
and shall be made either by telex or facsimile, or by letter addressed to the
party concerned at the addresses set out above
- 22 -
or, in the case of a Citibank Affiliate, in Exhibit A hereto (or at such other
addresses as may be notified in writing by one party to any other party from
time to time).
23. GOVERNING LAW AND JURISDICTION
As between the Bank and the Client, this Agreement shall be governed by and
construed in accordance with the laws of the State of New York (without giving
effect to the conflict of law principles thereof) and the Client agrees for the
benefit of the Bank and, without prejudice to the right of the Bank to take any
proceedings in relation hereto before any other court of competent jurisdiction,
that the courts of the State of New York shall have jurisdiction to hear and
determine any suit, action or proceeding and to settle any disputes, which may
arise out of or in connection with this Agreement, and, for such purposes,
irrevocably submits to the non-exclusive jurisdiction of such courts.
As between the Courts and each Citibank Affiliate, this Agreement shall be
governed by and construed in accordance with the local law applicable to the
place in which such Citibank Affiliate carries on business, and Client agrees
for the benefit of such Citibank Affiliate and, without prejudice to the right
of such Citibank Affiliate to take any proceedings in relation hereto before any
other court of competent jurisdiction, that the courts of the place in which
such Citibank Affiliate carries on business shall have jurisdiction to hear and
determine any suit, action or proceeding, and to settle any disputes, which may
arise out of or in connection with this Agreement and, for such purposes,
irrevocably submits to the non-exclusive jurisdiction of such courts.
24. PROVISION OF INFORMATION REGARDING PROPERTY HELD OUTSIDE
THE UNITED STATES
The Custodian shall use its best efforts to assist the Client in obtaining the
following:
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(A) Information concerning whether, and to what extent, applicable foreign
law would restrict the access afforded the Client's independent public
accountants to books and records kept by a Citibank Affiliate in a foreign
country or foreign Clearance System used in such country;
(B) Information concerning whether, and to what extent, applicable foreign
law would restrict the Client's ability to recover its own assets in the event
of the bankruptcy of a Citibank Affiliate in a foreign country or foreign
Clearance System used in such country;
(C) Information concerning whether, and to what extent, applicable foreign
law would restrict the Client's ability to recover assets that are lost while
under the control of a Citibank Affiliate in a foreign country or foreign
Clearance System used in such country;
(D) Information concerning whether under applicable foreign currency
exchange regulations of a foreign country, the Client's cash and cash
equivalents held in such country are readily convertible to U.S. dollars;
(E) Information relating to whether each Citibank Affiliate in a foreign
country or foreign Clearance System used would provide a level of safeguards for
maintaining the Client's assets not materially different from that provided by
the Bank in maintaining the Securities held in the United States;
(F) Information concerning whether each Citibank Affiliate in a foreign
country or foreign Clearance System used has offices in the United States in
order to facilitate the assertion of jurisdiction over and enforcement of
judgments against such Citibank Affiliate in a foreign country or foreign
Clearance System; and
(G) As to each foreign Clearance System used, information concerning the
number of participants in, and operating history of, such Clearance System.
- 24 -
During the term of this Agreement, the Custodian shall use its best efforts to
provide the Client with prompt notice of any material changes in the facts or
circumstances upon which any of the foregoing information of statements were
based.
Notwithstanding any of the foregoing provisions of this Section 24, the
Custodian's undertaking to assist the Client in obtaining the information
referred to in this Section 24 shall neither increase the Custodian's duty of
care nor reduce the Client's responsibility to determine for itself the prudence
of entrusting its assets to any particular custodian in a foreign country or
foreign Clearance System.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement,
including the country selections in Exhibit A hereto and the Schedules hereto
(if any), to be executed by their respective officers thereunto duly authorized.
CITIBANK, N.A. on its own CUSTODIAL TRUST COMPANY
behalf and as agent for each
Citibank Affiliate
By:______________________________ By:_____________________________
Title:___________________________ Title:__________________________
Attest:__________________________ Attest:_________________________
Attachments
- 25 -
EXHIBIT A - FOR US REGISTERED INVESTMENT COMPANIES
Citibank Affiliates
Country Selection* (X) Custodian and Address Client Signature
-------------------------------------------------------------------------------------------------------------------
Argentina ( ) Citibank, N.A. _________________________
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 502/30 Name, Title & Date
1036 Buenos Aires, Argentina
Brazil ( ) Citibank, N.A. _________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ Name, Title & Date
Sao Paulo
Brazil 01311
Canada ( ) Citibank Canada _________________________
Citibank Place Name, Title & Date
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇
Chile ( ) Citibank, N.A. _________________________
▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇
Germany
Citibank Aktiengesellschaft _________________________
Neue ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ Name, Title & Date
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇/▇▇▇▇
▇▇▇▇▇▇▇
Greece ( ) Citibank, N.A. _________________________
▇, ▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇
Hong Kong ( ) Citibank, N.A. _________________________
Citicorp tower Name, Title & Date
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ( ) Citibank, N.A. _________________________
Landmark Building Name, Title & Date
▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇. ▇
▇▇▇▇▇▇▇ ▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
*
--------------------------
Country Selections are subect to the laws, regulations and operating procedures
applicable in the jurisdiction of the selected Custodian and subject to the
local customs and practices as referred to in the Schedules, attached hereto (if
any), as such Schedules may be amended from time to time, and the Terms and
Conditions or Operating Procedures, if any, applicable to such selected
Custodians.
- 26 -
EXHIBIT A - Citibank Affiliates (continued)
Country Selection* (X) Custodian and Address Client Signature
-------------------------------------------------------------------------------------------------------------------
India ( ) Citibank, N.A. _________________________
Sakhar Bhavan Name, Title & Date
230 Backbay Reclamation
Nariman Point
Bombay 400 021
India
Ireland ( ) Citibank, N.A. _________________________
71 St. Stephen's Green Name, Title & Date
▇▇▇▇▇▇ ▇
Ireland
Italy ( ) Citibank, N.A. _________________________
Foro Buonaparte 16 Name, Title & Date
20121 Milano
Italy
Japan ( ) Citibank, N.A. _________________________
Shinkawa Sanko Bldg. Name, Title & Date
▇-▇-▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇-▇▇
▇▇▇▇▇, ▇▇▇▇▇
Korea ( ) Citibank, N.A. _________________________
KPO Box 749 Name, Title & Date
Citicorp Center ▇▇▇▇▇▇▇▇
▇▇-▇▇, ▇-▇▇
▇▇▇▇▇▇-▇▇, ▇▇▇▇▇▇▇-▇▇
▇▇▇▇▇
▇▇▇▇▇
Malaysia ( ) Citibank, N.A. _________________________
28 Medan Pesar Name, Title & Date
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
Mexico ( ) Citibank, N.A. _________________________
Paseo de la Reforma 390 Name, Title & Date
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
*
--------------------------
Country Selections are subect to the laws, regulations and operating procedures
applicable in the jurisdiction of the selected Custodian and subject to the
local customs and practices as referred to in the Schedules, attached hereto (if
any), as such Schedules may be amended from time to time, and the Terms and
Conditions or Operating Procedures, if any, applicable to such selected
Custodians.
-27-
EXHIBIT A - Citibank Affiliates (continued)
Country Selection* (X) Custodian and Address Client Signature
-------------------------------------------------------------------------------------------------------------------
Netherlands ( ) Citibank, N.A. _________________________
EUROPLAZA Name, Title & Date
Hoogoorddreef 54 B
1101 BE Amsterdam Z.O.
The Netherlands
Pakistan ( ) Citibank, N.A. (Pakistan) _________________________
▇.▇. ▇▇▇ ▇▇▇▇ Name, Title & Date
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇
Philippines ( ) Citibank, N.A. _________________________
Citibank Center Name, Title & Date
▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
Puerto Rico ( ) Citibank, N.A. _________________________
▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Name, Title & Date
San ▇▇▇▇
Puerto Rico 00936
Singapore ( ) Citibank, N.A. _________________________
UIC Building #01-00 Name, Title & Date
▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, 0106
Spain ( ) Citibank, N.A. _________________________
▇▇▇▇ ▇▇▇▇▇▇ y Gasset 29 Name, Title & Date
Madrid ▇▇▇▇▇
▇▇▇▇▇
Sri Lanka ( ) Citibank, N.A. _________________________
▇.▇. ▇▇▇ ▇▇▇ Name, Title & Date
▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇
▇▇▇ ▇▇▇▇▇
*
--------------------------
Country Selections are subect to the laws, regulations and operating procedures
applicable in the jurisdiction of the selected Custodian and subject to the
local customs and practices as referred to in the Schedules, attached hereto (if
any), as such Schedules may be amended from time to time, and the Terms and
Conditions or Operating Procedures, if any, applicable to such selected
Custodians.
-28-
EXHIBIT A - Citibank Affiliates (continued)
Citibank Affiliates
Country Selection* (X) Custodian and Address Client Signature
-------------------------------------------------------------------------------------------------------------------
Taiwan ( ) Citibank, N.A. _________________________
Citicorp Center Name, Title & Date
▇▇. ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇. ▇
▇▇▇▇▇▇
▇▇▇▇▇▇ (Republic of China)
Thailand ( ) Citibank, N.A. _________________________
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ Name, Title & Date
Yannawa Bangkok ▇▇▇▇▇
▇▇▇▇▇▇▇▇
Turkey ( ) Citibank, N.A. _________________________
▇▇▇▇ ▇▇▇▇▇▇ Cadderi 65 Name, Title & Date
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
United Kingdom ( ) Citibank, N.A. _________________________
Lewisham Name, Title & Date
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
United Kingdom
United States ( ) Citibank, N.A. _________________________
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Name, Title & Date
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇.▇.▇.
Uruguay ( ) Citibank, N.A. _________________________
Cerrito 455 Name, Title & Date
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Venezuela ( ) Citibank, N.A. _________________________
Carmelitas a ▇▇▇▇▇▇▇▇▇▇ Name, Title & Date
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇
*
--------------------------
Country Selections are subect to the laws, regulations and operating procedures
applicable in the jurisdiction of the selected Custodian and subject to the
local customs and practices as referred to in the Schedules, attached hereto (if
any), as such Schedules may be amended from time to time, and the Terms and
Conditions or Operating Procedures, if any, applicable to such selected
Custodians.
- 29 -