AGREEMENT BETWEEN
▇▇▇▇▇ BROTHERS ▇▇▇▇▇▇▇▇ & CO.
AND
PIONEER INDIA FUND
CUSTODIAN AGREEMENT
AGREEMENT made this 2nd day of May 1994, between PIONEER INDIA FUND
(the "Fund") and ▇▇▇▇▇ Brothers ▇▇▇▇▇▇▇▇ & Co. (the
"Custodian");
WITNESSETH: That in consideration of the mutual covenants and
agreements herein contained, the parties hereto agree as follows:
1. Employment of Custodian: The Fund hereby employs and appoints the
Custodian as a custodian for the term and subject to the provisions of this
Agreement. The Custodian shall not be under any duty or obligation to require
the Fund to deliver to it any securities or funds owned by the Fund and shall
have no responsibility or liability for or on account of securities or funds not
so delivered. The Fund will deposit with the Custodian copies of the Declaration
of Trust or Certificate of Incorpora-tion and By-Laws (or comparable documents)
of the Fund and all amendments thereto, and copies of such votes and other
proceed-ings of the Fund as may be necessary for or convenient to the Custodian
in the performance of its duties.
2. Powers and Duties of the Custodian with respect to Property of the
Fund held by the Custodian in the United States: Except for securities and funds
held by any Subcustodians appointed pursuant to the provisions of Section 3
hereof, the Custodian shall have and perform the following powers and duties:
A. Safekeeping - To keep safely the securities and other
assets of the Fund that have been delivered to the Custodian and, on
behalf of the Fund, from time to time to receive delivery of securities
for safekeeping.
B. Manner of Holding Securities - To hold securities of the
Fund (1) by physical possession of the share certificates or other
instruments representing such securities in registered or bearer form,
or (2) in book-entry form by a Securities System (as said term is
defined in Section 20).
C. Registered Name; Nominee - To hold registered securities of
the Fund (1) in the name or any nominee name of the Custodian or the
Fund, or in the name or any nominee name of any Agent appointed
pursuant to Section 6F, or (2) in street certificate form, so-called,
and in any case with or without any indication of fiduciary capacity,
provided that securities are held in an account of the Custodian
containing only assets of the Fund or only assets held as fiduciary or
custodian for customers.
D. Purchases - Upon receipt of Proper Instructions, as defined
in Section X on Page 16, insofar as funds are available for the
purpose, to pay for and receive securities purchased for the account of
the Fund, payment being made only upon receipt of the securities (1) by
the Custodian, or (2) by a clearing corporation of a national
securities exchange of which the Custodian is a member, or (3) by a
Securities System. However, (i) in the case of repurchase agreements
entered into by the Fund, the Custodian (as well as an Agent) may
release funds to a Securities System or to a Subcustodian prior to the
receipt of advice from 'the Securities System or Subcustodian that the
securities underlying such repurchase agreement have been transferred
by book entry into the Account (as defined in Section 2U) of the
Custodian (or such Agent) maintained with such Securities System or
Subcustodian, so long as such payment instructions to the Securities
System or Subcustodian include a requirement that delivery is only
against payment for securities, (ii) in the case of foreign exchange
contracts, options, time deposits, call account deposits, currency
deposits, and other deposits, contracts or options pursuant to Sections
2J, 2L, 2M and 2N, the Custodian may make payment therefor without
receiving an instrument evidencing said deposit, contract or option so
long as such payment instructions detail specific securities to be
acquired, and (iii) in the case of securities in which payment for the
security and receipt of the instrument evidencing the security are
under generally accepted trade practice or the terms of the instrument
representing the security expected to take place in different locations
or
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through separate parties, such as commercial paper which is indexed to
foreign currency exchange rates, derivatives and similar securities,
the Custodian may make payment for such securities prior to delivery
thereof in accordance with such generally accepted trade practice or
the terms of the instrument representing such security.
E. Exchanges - Upon receipt of proper instructions, to
exchange securities held by it for the account of the Fund for other
securities in connection with any reorganization, recapitalization,
split-up of shares, change of par value, conversion or other event,
relating to the securities or the issuer of such securities, and to
deposit any such securities in accordance with the terms of any
reorganization or protective plan. Without proper instructions, the
Custodian may surrender securities in temporary form for definitive
securities, may surrender securities for transfer into a name or
nominee name as permitted in Section 2C, and may surrender securities
for a different number of certificates or instruments representing the
same number of shares or same principal amount of indebtedness,
provided the securities to be issued are to be delivered to the
Custodian and further provided the Custodian shall at the time of
surrendering securities or instruments receive a receipt or other
evidence of ownership thereof.
F. Sales of Securities - Upon receipt of proper instructions,
to make delivery of securities which have been sold for the account of
the Fund, but only against payment therefor (1) in cash, by a certified
check, bank cashier's check, bank credit, or bank wire transfer, or (2)
by credit to the account of the Custodian with a clearing corporation
of a national securities exchange of which the Custodian is a member,
or (3) by credit to the account of the Custodian or an Agent of the
Custodian with a Securities System; provided, however, that (i) in the
case of delivery of physical certificates or instruments representing
securities, the Custodian may make delivery to the broker buying the
securities, against receipt therefor, for examination in accordance
with "street delivery" custom,
-3-
provided that the payment therefor is to be made to the Custodian
(which payment may be made by a broker's check) or that such securities
are to be returned to the Custodian, and (ii) in the case of securities
referred to in clause (iii) of the last sentence of Section 2D, the
Custodian may make settlement, including with respect to the form of
payment, in accordance with generally accepted trade practice relating
to such securities or the terms of the instrument representing said
security.
G. Depositary Receipts - Upon receipt of proper instructions,
to instruct a Subcustodian or an Agent to surrender securities to the
depositary used by an issuer of American Depositary Receipts or
International Depositary Receipts (hereinafter collectively referred to
as "ADRs") for such securities against a written receipt therefor
adequately describing such securities and written evidence satisfactory
to the Subcustodian or Agent that the depositary has acknowledged
receipt of instructions to issue with respect to such securities ADRs
in the name of the Custodian, or a nominee of the Custodian, for
delivery to the Custodian in Boston, Massachusetts, or at such other
place as the Custodian may from time to time designate. Upon receipt of
proper instructions, to surrender ADRs to the issuer thereof against a
written receipt therefor adequately describing the ADRs surrendered and
written evidence satisfactory to the Custodian that the issuer of the
ADRs has acknowledged receipt of instructions to cause its depositary
to deliver the securities underlying such ADRs to a Subcustodian or an
Agent.
H. Exercise of Rights; Tender Offers - Upon timely receipt of
proper instructions, to deliver to the issuer or trustee thereof, or to
the agent of either, warrants, puts, calls, rights or similar
securities for the purpose of being exercised or sold, provided that
the new securities and cash, if any, acquired by such action are to be
delivered to the Custodian, and, upon receipt of proper instructions,
to deposit securities upon invitations for tenders of securities,
provided that the consideration is to be paid or
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delivered or the tendered securities are to be returned to the
Custodian.
I. Stock Dividends, Rights, Etc. - To receive and collect all
stock dividends, rights and other items of like nature; and to deal
with the same pursuant to proper instructions relative thereto.
J. Options - Upon receipt of proper instructions, to receive
and retain confirmations or other documents evidencing the purchase or
writing of an option on a security or securities index by the Fund; to
deposit and maintain in a segregated account, either physically or by
book-entry in a Securities System, securities subject to a covered call
option written by the Fund; and to release and/or transfer such
securities or other assets only in accordance with the provisions of
any agreement among the Fund, the Custodian and a broker-dealer
relating to such securities or other assets a notice or other
communication evidencing the expiration, termination or exercise of
such covered option furnished by The Options Clearing Corporation, the
securities or options exchange on which such covered option is traded
or such other organization as may be responsible for handling such
options transactions.
K. Borrowings - Upon receipt of proper instructions, to
deliver securities of the Fund to lenders or their agents as collateral
for borrowings effected by the Fund, provided that such borrowed money
is payable to or upon the Custodian's order as Custodian for the Fund.
L. Demand Deposit Bank Accounts - To open and operate an
account or accounts in the name of the Fund on the Custodian's books
subject only to draft or order by the Custodian. All funds received by
the Custodian from or for the account of the Fund shall be deposited in
said account(s). The responsibilities of the Custodian to the Fund for
deposits accepted on the Custodian's books shall be that of a U.S. bank
for a similar deposit.
-5-
If and when authorized by proper instructions, the Custodian
may open and operate an additional account(s) in such other banks or
trust companies as may be designated by the Fund in such instructions
(any such bank or trust company so designated by the Fund being
referred to hereafter as a "Banking Institution"), provided that such
account(s) (hereinafter collectively referred to as "demand deposit
bank accounts") shall be in the name of the Custodian for account of
the Fund and subject only to the Custodian's draft or order. Such
demand deposit accounts may be opened with Banking Institutions in the
United States and in other countries and may be denominated in either
U. S. Dollars or other currencies as the Fund may determine. All such
deposits shall be deemed to be portfolio securities of the Fund and
accordingly the responsibility of the Custodian therefore shall be the
same as and no greater than the Custodian's responsibility in respect
of other portfolio securities of the Fund.
M. Interest Bearing Call or Time Deposits - To place interest
bearing fixed term and call deposits with such banks and in such
amounts as the Fund may authorize pursuant to proper instructions. Such
deposits may be placed with the Custodian or with Subcustodians or
other Banking Institutions as the Fund may determine. Deposits may be
denominated in U. S. Dollars or other currencies and need not be
evidenced by the issuance or delivery of a certificate to the
Custodian, provided that the Custodian shall include in its records
with respect to the assets of the Fund appropriate notation as to the
amount and currency of each such deposit, the accepting Banking
Institution and other appropriate details, and shall retain such forms
of advice or receipt evidencing the deposit, if any, as may be
forwarded to the Custodian by the Banking Institution. Such deposits,
other than those placed with the Custodian, shall be deemed portfolio
securities of the Fund and the responsibilities of the Custodian
therefor shall be the same as those for demand deposit bank accounts
placed with other banks, as described in Section L of this Agreement.
The responsibility of the Custodian for such deposits accepted
-6-
on the Custodian's books shall be that of a U. S. bank for a similar
deposit.
N. Foreign Exchange Transactions and Futures Contracts
Pursuant to proper instructions, to enter into foreign exchange
contracts or options to purchase and sell foreign currencies for spot
and future delivery on behalf and for the account of the Fund. Such
transactions may be undertaken by the Custodian with such Banking
Institutions, including the Custodian and Subcustodian(s) as
principals, as approved and authorized by the Fund. Foreign exchange
contracts and options other than those executed with the Custodian,
shall be deemed to be portfolio securities of the Fund and the
responsibilities of the Custodian therefor shall be the same as those
for demand deposit bank accounts placed with other banks as described
in Section 2-L of this agreement. Upon receipt of proper instructions,
to receive and retain confirmations evidencing the purchase or sale of
a futures contract or an option on a futures contract by the Fund; to
deposit and maintain in a segregated account, for the benefit of any
futures commission merchant or to pay to such futures commission
merchant, assets designated by the fund as initial, maintenance or
variation "margin" deposits intended to secure the Fund's performance
of its obligations under any futures contracts purchased or sold or any
options on futures contracts written by the Fund, in accordance with
the provisions of any agreement or agreements among any of the Fund,
the Custodian and such futures commission merchant, designated to
comply with the rules of the Commodity Futures Trading Commission
and/or any contract market, or any similar organization or
organizations, regarding such margin deposits; and to release and/or
transfer assets in such margin accounts only in accordance with any
such agreements or rules.
0. Stock Loans - Upon receipt of proper instructions, to
deliver securities of the Fund, in connection with loans of securities
by the Fund, to the borrower thereof prior to receipt of the
collateral, if any, for such borrowing, provided that for stock loans
secured by cash collateral the Custodian's instructions to the
Securities System require
-7-
that the Securities System may deliver the securities to the borrower
thereof only upon receipt of the collateral for such borrowing.
P. Collections - To collect, receive and deposit in said
account or accounts all income, payments of principal and other
payments with respect to the securities held hereunder, and in
connection therewith to deliver the certificates or other instruments
representing the securities to the issuer thereof or its agent when
securities are called, redeemed, retired or otherwise become payable;
provided, that the payment is to be made in such form and manner and at
such time, which may be after delivery by the Custodian of the
instrument representing the security, as is in accordance with the
terms of the instrument representing the security, or such proper
instructions as the Custodian may receive, or governmental regulations,
the rules of Securities Systems or other U.S. securities depositories
and clearing agencies or, with respect to securities referred to in
clause (iii) of the last sentence of Section 2D, in accordance with
generally accepted trade practice; (ii) to execute ownership and other
certificates and affidavits for all federal and state tax purposes in
connection with receipt of income or other payments with respect to
securities of the Fund or in connection with transfer of securities,
and (iii) pursuant to proper instructions to take such other actions
with respect to collection or receipt of funds or transfer of
securities which involve an investment decision.
Q. Dividends, Distributions and Redemptions - Upon receipt of
proper instructions from the Fund, or upon receipt of instructions from
the Fund's shareholder servicing agent or agent with comparable duties
(the "Shareholder Servicing Agent") (given by such person or persons
and in such manner on behalf of the Shareholder Servicing Agent as the
Fund shall have authorized), the Custodian shall release funds or
securities to the Shareholder Servicing Agent or otherwise apply funds
or securities, insofar as available, for the payment of dividends or
other distributions to Fund shareholders. Upon
-8-
receipt of proper instructions from the Fund, or upon receipt of
instructions from the Shareholder Servicing Agent (given by such person
or persons and in such manner on behalf of the Shareholder Servicing
Agent as the Fund shall have authorized), the Custodian shall release
funds or securities, insofar as available, to the Shareholder Servicing
Agent or as such Agent shall otherwise instruct for payment to Fund
shareholders who have delivered to such Agent a request for repurchase
or redemption of their shares of capital stock of the Fund.
R. Proxies, Notices, Etc. - Promptly to deliver or mail to the
Fund all forms of proxies and all notices of meetings and any other
notices or announcements affecting or relating to securities owned by
the Fund that are received by the Custodian, and upon receipt of proper
instructions, to execute and deliver or cause its nominee to execute
and deliver such proxies or other authorizations as may be required.
Neither the Custodian nor its nominee shall vote upon any of such
securities or execute any proxy to vote thereon or give any consent or
take any other action with respect thereto (except as otherwise herein
provided) unless ordered to do so by proper instructions.
S. Nondiscretionary Details - Without the necessity of express
authorization from the Fund, to attend to all nondiscretionary details
in connection with the sale, exchange, substitution, purchase, transfer
or other dealings with securities, funds or other property of the
Portfolio held by the Custodian except as otherwise directed from time
to time by the Directors or Trustees of the Fund.
T. Bills - Upon receipt of proper instructions, to pay or
cause to be paid, insofar as funds are available for the purpose,
bills, statements, or other obligations of the Fund.
U. Deposit of Fund Assets in Securities Systems - The
Custodian may deposit and/or maintain securities owned by the Fund in
(I) The Depository Trust Company, (ii) any book-entry system as
provided in Subpart 0 of Treasury Circular
-9-
▇▇. ▇▇▇, ▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇ of 31 CFR Part 350, or the book-entry
regulations of federal agencies substantially in the form of Subpart 0,
or (iii) any other domestic clearing agency registered with the
Securities and Exchange Commission under Section 17A of the Securities
Exchange Act of 1934 which acts as a securities depository and whose
use the Fund has previously approved in writing (each of the foregoing
being referred to in this Agreement as a "Securities System").
Utilization of a Securities System shall be 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 deposit and/or maintain Fund
securities, either directly or through one or more Agents
appointed by the Custodian (provided that any such agent shall
be qualified to act as a custodian of the Fund pursuant to the
Investment Company Act of 1940 and the rules and regulations
thereunder), in a Securities System provided that such
securities are represented in an account ("Account") of the
Custodian or such Agent in the Securities System which shall
not include any assets of the Custodian or Agent 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 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 Securities System that such securities have been
transferred to the 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 Securities System that
-10-
payment for such securities has been transferred to the
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 Securities System
of transfers of securities for the account of the Fund shall
identify the Fund, be maintained for the Fund by the Custodian
or an Agent as referred to above, and be provided to the Fund
at its 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 Securities System
for the account of the Fund on the next business day;
4) The Custodian shall provide the Fund with any
report obtained by the Custodian or any Agent as referred to
above on the Securities System's accounting system, internal
accounting control and procedures for safeguarding securities
deposited in the Securities System; and the Custodian and such
Agents shall send to the Fund such reports on their own
systems of internal accounting control as the Fund may
reasonably request from time to time.
5) At the written request of the Fund, the Custodian
will terminate the use of any such Securities System on behalf
of the Fund as promptly as practicable.
V. Other Transfers - Upon receipt of proper instructions, to
deliver securities, funds and other property of the Fund to a
Subcustodian or another custodian of the Fund; and, upon receipt of
proper instructions, to make such other disposition of securities,
funds or other property of the Fund in a manner other than or for
purposes other than as enumerated elsewhere in this Agreement, provided
that the instructions relating to such disposition shall include a
statement of the purpose for which the delivery is to be made, the
amount of securities to be
-11-
delivered and the name of the person or persons to whom delivery is to
be made.
W. Investment Limitations - In performing its duties
generally, and more particularly in connection with the purchase, sale
and exchange of securities made by or for the Fund, the Custodian may
assume unless and until notified in writing to the contrary that proper
instructions received by it are not in conflict with or in any way
contrary to any provisions of the Fund's Declaration of Trust or
Certificate of Incorporation or By-Laws (or comparable documents) or
votes or proceedings of the shareholders or Directors of the Fund. The
Custodian shall in no event be liable to the Fund and shall be
indemnified by the Fund for any violation which occurs in the course of
carrying out instructions given by the Fund of any investment
limitations to which the Fund is subject or other limitations with
respect to the Fund's powers to make expenditures, encumber securities,
borrow or take similar actions affecting the Fund.
X. Proper Instructions - Proper instructions shall mean a
tested telex from the Fund or a written request, direction, instruction
or certification signed or initialed on behalf of the Fund by one or
more person or persons as the Board of Trustees or Directors of the
Fund shall have from time to time authorized, provided, however, that
no such instructions directing the delivery of securities or the
payment of funds to an authorized signatory of the Fund shall be signed
by such person. Those persons authorized to give proper instructions
may be identified by the Board of Trustees or Directors by name, title
or position and will include at least one officer empowered by the
Board to name other individuals who are authorized to give proper
instructions on behalf of the Fund.
Telephonic or other oral instructions given by any one of the
above persons 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. oral
instructions will be confirmed by tested telex or in writing in the
manner set
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forth above but the lack of such confirmation shall in no way affect
any action taken by the Custodian in reliance upon such oral
instructions.
The Fund authorizes the Custodian to tape record any and all
telephonic or other oral instructions given to the Custodian by or on
behalf of the Fund (including any of its officers, Trustees, Directors,
employees or agents) and will deliver to the Custodian a similar
authorization from any investment manager or adviser or person or
entity with similar responsibilities which is authorized to give proper
instructions on behalf of the Fund to the Custodian. Proper
instructions may relate to specific transactions or to types or classes
of transactions, and may be in the form of standing instructions.
Proper instructions may include communications effected
directly between electromechanical or electronic devices or systems, in
addition to tested telex, provided that the Fund and the Custodian
agree to the use of such device or system.
Y. Segregated Account - The Custodian shall upon receipt of
proper instructions establish and maintain on its books a segregated
account or accounts for and on behalf of the Fund, into which account
or accounts may be transferred cash and/or securities of the Fund,
including securities maintained by the Custodian pursuant to Section 2U
hereof, (i) 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 and a member of the National
Association of Securities Dealers, Inc. (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 Commodity Futures
Trading Commission or any registered contract market), or any similar
organization or organizations, regarding escrow or other arrangements
in connection with transactions by the Fund, (ii) for purposes of
segregating cash or securities in connection with options purchased,
sold or written by the Fund or commodity futures contracts or options
thereon
-13-
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 or releases of the Securities and
Exchange Commission relating to the maintenance of segregated accounts
by registered investment companies, and (iv) as mutually agreed from
time to time between the Fund and the Custodian.
3. Powers and Duties of the Custodian with Respect to the Appointment
of Subcustodians Outside the United States: Securities, funds and other property
of the Fund may be held by subcustodians appointed pursuant to the provisions of
this Section 3 (a "Subcustodian"). The Custodian may, at any time and from time
to time, appoint any bank or trust company (meeting the requirements of a
custodian or an "eligible foreign custodian" under the Investment Company Act of
1940 and the rules and regulations thereunder) to act as a Subcustodian for the
Fund, and the Custodian may also utilize directly and any Subcustodian may
utilize such securities depositories located outside the United States (as shall
be approved in writing by Fund) and as meet the requirements of an "eligible
foreign custodian" as aforesaid, provided that the Fund shall have approved in
writing (1) any such bank or trust company and the subcustodian agreement to be
entered into between such bank or trust company and the Custodian, and (2) if
the Subcustodian is a bank organized under the laws of a country other than the
United States, the country or countries in which the Subcustodian is authorized
to hold securities, cash and other property of the Fund, and (3) the securities
depositories, if any, through which the Subcustodian or the Custodian is
authorized to hold securities, cash and other property of the Fund. Upon such
approval by the Fund, the Custodian is authorized on behalf of the Fund to
notify each Subcustodian of its appointment as such. The Custodian may, at any
time in its discretion, remove any bank or trust company that has been appointed
as a Subcustodian but will promptly notify the Fund of any such action.
Those Subcustodians, and the countries where and the securities
depositories through which they or the Custodian may hold securities, cash and
other property of the Fund which the
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Fund has approved to date are set forth on Appendix A hereto. Such Appendix
shall be amended from time to time as Subcustodians, and/or countries and/or
securities depositories are changed, added or deleted. The Fund shall be
responsible for informing the Custodian sufficiently in advance of a proposed
investment which is to be held in a country not listed on Appendix A, in order
that there shall be sufficient time for the Fund to give the approval required
by the preceding paragraph and for the Custodian to put the appropriate
arrangements in place with such Subcustodian, including negotiation of a
subcustodian agreement and submission of such subcustodian agreement to the Fund
for approval.
If the Fund shall have invested in a security to be held in a country
before the foregoing procedures have been completed, such security shall be held
by such agent as the Custodian may appoint. In any event, the Custodian shall be
liable to the Fund for the actions of such agent if and only to the extent the
Custodian shall have recovered from such agent for any damages caused the Fund
by such agent. At the request of the Fund, Custodian agrees to remove any
securities held on behalf of the Fund by such agent, if practical, to an
approved Subcustodian. Under such circumstances Custodian will collect income
and respond to corporate actions on a best efforts basis.
With respect to securities and funds held by a Subcustodian, either
directly or indirectly (including by a securities depository or clearing
agency), notwithstanding any provision of this Agreement to the contrary,
payment for securities purchased and delivery of securities sold may be made
prior to receipt of the securities or payment, respectively, and securities or
payment may be received in a form, in accordance with governmental regulations,
rules of securities depositories and clearing agencies, or generally accepted
trade practice in the applicable local market.
With respect to the securities and funds held by a Subcustodian, either
directly or indirectly, (including by a securities depository or a clearing
agency) including demand and interest bearing deposits, currencies or other
deposits and foreign exchange contracts as referred to in Sections 2L, 2M or
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2N, the Custodian shall be liable to the Fund if and only to the extent that
such Subcustodian is liable to the Custodian and the Custodian recovers under
the applicable subcustodian agreement. The Custodian shall nevertheless be
liable to the Fund for its own negligence in transmitting any instructions
received by it from the Fund and for its own negligence in connection with the
delivery of any securities or funds held by it to any such Subcustodian.
In the event that any Subcustodian appointed pursuant to the provisions
of this Section 3 fails to perform any of its obligations under the terms and
conditions of the applicable subcustodian agreement, the Custodian shall use its
best efforts to cause such Subcustodian to perform such obligations. In the
event that the Custodian is unable to cause such Subcustodian to perform fully
its obligations thereunder, the Custodian shall forthwith upon the Fund's
request terminate such Subcustodian in accordance with the termination
provisions under the applicable subcustodian agreement and, if necessary or
desirable, appoint another subcustodian in accordance with the provisions of
this Section 3. At the election of the Fund, it shall have the right to enforce,
to the extent permitted by the subcustodian agreement and applicable law, the
Custodian's rights against any such Subcustodian for loss or damage caused the
Fund by such Subcustodian.
At the written request of the Fund, the Custodian will terminate any
subcustodian appointed pursuant to the provisions of this Section 3 in
accordance with the termination provisions under the applicable subcustodian
agreement. The Custodian will not amend any subcustodian agreement or agree to
change or permit any changes thereunder except upon the prior written approval
of the Fund.
The Custodian may, at any time in its discretion upon notification to
the Fund, terminate any Subcustodian of the Fund in accordance with the
termination provisions under the applicable Subcustodian Agreement, and at the
written request of the Fund, the Custodian will terminate any Subcustodian in
accordance with the termination provisions under the applicable Subcustodian
Agreement.
-16-
If necessary or desirable, the Custodian may appoint another
subcustodian to replace a Subcustodian terminated pursuant to the foregoing
provisions of this Section 3, such appointment to be made upon approval of the
successor subcustodian by the Fund's Board of Directors or Trustees in
accordance with the provisions of this Section 3.
In the event the Custodian receives a claim from a Subcustodian under
the indemnification provisions of any subcustodian agreement, the Custodian
shall promptly give written notice to the Fund of such claim. No more than
thirty days after written notice to the Fund of the Custodian's intention to
make such payment, the Fund will reimburse the Custodian the amount of such
payment except in respect of any negligence or misconduct of the Custodian.
4. Assistance by the Custodian as to Certain Matters: The Custodian may
assist generally in the preparation of reports to Fund shareholders and others,
audits of accounts, and other ministerial matters of like nature.
5. Powers and Duties of the Custodian with Respect to its Role as
Financial Agent: The Fund hereby also appoints the Custodian as the Fund's
financial agent. With respect to the appointment as financial agent, the
Custodian shall have and perform the following powers and duties:
A. Records - To create, maintain and retain such records
relating to its activities and obligations under this Agreement as are
required under the Investment Company Act of 1940 and the rules and
regulations thereunder (including Section 31 thereof and Rules 3la-1
and 3la-2 thereunder) and under applicable Federal and State tax laws.
All such records will be the property of the Fund and in the event of
termination of this Agreement shall be delivered to the successor
custodian.
-17-
B. Accounts - To keep books of account and render statements,
including interim monthly and complete quarterly financial statements,
or copies thereof, from time to time as reasonably requested by proper
instructions.
C. Access to Records - The books and records maintained by the
Custodian pursuant to Sections 5A and 5B shall at all times during the
Custodian's regular business hours be open to inspection and audit by
officers of, attorneys for and auditors employed by the Fund and by
employees and agents of the Securities and Exchange Commission,
provided that all such individuals shall observe all security
requirements of the Custodian applicable to its own employees having
access to similar records within the Custodian and such regulations as
maybe reasonably imposed by the Custodian.
D. Calculation of Net Asset Value - To compute and determine
the net asset value per share of capital stock of the Fund as of the
close of business on the New York Stock Exchange on each day on which
such Exchange is open, unless otherwise directed by proper
instructions. Such computation and determination shall be made in
accordance with (1) the provisions of the Fund's Declaration of Trust
or Certificate of Incorporation or By-Laws, as they may from time to
time be amended and delivered to the Custodian, (2) the votes of the
Board of Trustees or Directors of the Fund at the time in force and
applicable, as they may from time to time be delivered to the
Custodian, and (3) proper instructions from such officers of the Fund
or other persons as are from time to time authorized by the Board of
Trustees or Directors of the Fund to give instructions with respect to
computation and determination of the net asset value. On each day that
the Custodian shall compute the net asset value per share of the Fund,
the Custodian shall provide the Fund with written reports which permit
the Fund to verify that portfolio transactions have been recorded in
accordance with the Fund's instructions and are reconciled with the
Fund's trading records.
-18-
In computing the net asset value, the Custodian may rely upon
any information furnished by proper instructions, including without
limitation any information (1) as to accrual of liabilities of the Fund
and as to liabilities of the Fund not appearing on the books of account
kept by the Custodian, (2) as to the existence, status and proper
treatment of reserves, if any, authorized by the Fund, (3) as to the
sources of quotations to be used in computing the net asset value,
including those listed in Appendix B, (4) as to the fair value to be
assigned to any securities or other property for which price quotations
are not readily available, and (5) as to the sources of information
with respect to "corporate actions" affecting portfolio securities of
the Fund, including those listed in Appendix B. (Information as to
"corporate actions" shall include information as to dividends,
distributions, stock splits, stock dividends, rights offerings,
conversions, exchanges, recapitalizations, mergers, redemptions, calls,
maturity dates and similar transactions, including the ex- and record
dates and the amounts or other terms thereof.)
In like manner, the Custodian shall compute and determine the
net asset value as of such other times as the Board of Trustees or
Directors of the Fund from time to time may reasonably request.
Notwithstanding any other provisions of this Agreement,
including Section 6C, the following provisions shall apply with respect
to the Custodian's foregoing responsibilities in this Section 5D: The
Custodian shall be held to the exercise of reasonable care in computing
and determining net asset value as provided in this Section 5D, but
shall not be held accountable or liable for any losses, damages or
expenses the Fund or any shareholder or former shareholder of the Fund
may suffer or incur arising from or based upon errors or delays in the
determination of such net asset value unless such error or delay was
due to the Custodian's negligence, gross negligence or reckless or
willful misconduct in determination of such net asset value. (The
parties hereto acknowledge, however, that the Custodian's causing an
error or delay in the determination of net asset
-19-
value may, but does not in and of itself, constitute negligence, gross
negligence or reckless or willful misconduct.)
In no event shall the Custodian be liable or responsible to
the Fund, any present or former shareholder of the Fund or any other
party for any error or delay which continued or was undetected after
the date of an audit performed by the certified public accountants
employed by the Fund if, in the exercise of reasonable care in
accordance with generally accepted accounting standards, such
accountants should have become aware of such error or delay in the
course of performing such audit. The Custodian's liability for any such
negligence, gross negligence or reckless or willful misconduct which
results in an error in determination of such net asset value shall be
limited to the direct, out-of-pocket loss the Fund, shareholder or
former shareholder shall actually incur, measured by the difference
between the actual and the erroneously computed net asset value, and
any expenses the Fund shall incur in connection with correcting the
records of the Fund affected by such error (including charges made by
the Fund's registrar and transfer agent for making such corrections) or
communicating with shareholders or former shareholders of the Fund
affected by such error.
Without limiting the foregoing, the Custodian shall not be
held accountable or liable to the Fund, any shareholder or former
shareholder thereof or any other person for any delays or losses,
damages or expenses any of them may suffer or incur resulting from (1)
the Custodian's failure to receive timely and suitable notification
concerning quotations or corporate actions relating to or affecting
portfolio securities of the Fund or (2) any errors in the computation
of the net asset value based upon or arising out of quotations or
information as to corporate actions if received by the Custodian either
(i) from a source which the Custodian was authorized pursuant to the
second paragraph of this Section 5D to rely upon, or (ii) from a source
which in the Custodian's reasonable judgment was as reliable a source
for such quotations or information as the sources authorized pursuant
to that paragraph. Nevertheless, the Custodian
-20-
will use its best judgment in determining whether to verify through
other sources any information it has received as to quotations or
corporate actions if the Custodian has reason to believe that any such
information might be incorrect.
In the event of any error or delay in the determination of
such net asset value for which the Custodian may be liable, the Fund
and the Custodian will consult and make good faith efforts to reach
agreement on what actions should be taken in order to mitigate any loss
suffered by the Fund or its present or former shareholders, in order
that the Custodian's exposure to liability shall be reduced to the
extent possible after taking into account all relevant factors and
alternatives. Such actions might include the Fund or the Custodian
taking reasonable steps to collect from any shareholder or former
shareholder who has received any overpayment upon redemption of shares
such overpaid amount or to collect from any shareholder who has
underpaid upon a purchase of shares the amount of such underpayment or
to reduce the number of shares issued to such shareholder. It is
understood that in attempting to reach agreement on the actions to be
taken or the amount of the loss which should appropriately be borne by
the Custodian, the Fund and the Custodian will consider such relevant
factors as the amount of the loss involved, the Fund's desire to avoid
loss of shareholder good will, the fact that other persons or entitles
could have been reasonably expected to have detected the error sooner
than the time it was actually discovered, the appropriateness of
limiting or eliminating the benefit which shareholders or former
shareholders might have obtained by reason of the error, and the
possibility that other parties providing services to the Fund might be
induced to absorb a portion of the loss incurred.
E. Disbursements - Upon receipt of proper instructions, to pay
or cause to be paid, insofar as funds are available for the purpose,
bills, statements and other obligations of the Fund (including but not
limited to interest charges, taxes, management fees, compensation to
Fund officers and employees, and other operating expenses of the Fund).
-21-
6. Standard of Care and Related Matters:
A. Liability of the Custodian with Respect to Proper
Instruction; Evidence of Authority; Etc. The Custodian shall not be
liable for any action taken or omitted in reliance upon proper
instructions believed by it to be genuine or upon any other written
notice, request, direction, instruction, certificate or other
instrument believed by it to be genuine and signed by the proper party
or parties.
The Secretary or Assistant Secretary of the Fund shall certify
to the Custodian the names, signatures and scope of authority of all
persons authorized to give proper instructions or any other such
notice, request, direction, instruction, certificate or instrument on
behalf of the Fund, the names and signatures of the officers of the
Fund, the name and address of the Shareholder Servicing Agent, and any
resolutions, votes, instructions or directions of the Fund's Board of
Trustees or Directors or shareholders. Such certificate may be accepted
and relied upon by the Custodian as conclusive evidence of the facts
set forth therein and may be considered in full force and effect until
receipt of a similar certificate to the contrary.
So long as and to the extent that it is in the exercise of
reasonable care, 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.
The Custodian shall be entitled, at the expense of the Fund,
to receive and act upon advice of (i) counsel regularly retained by the
Custodian in respect of custodian matters, (ii) counsel for the Fund,
or (iii) such other counsel as the Fund and the Custodian may agree
upon, with respect to all matters, and the Custodian shall be without
liability for any action reasonably taken or omitted pursuant to such
advice.
-22-
B. Liability of the Custodian with Respect to Use of
Securities System - With respect to the portfolio securities, cash and
other property of the Fund held by a Securities System, the Custodian
shall be liable to the Fund only for any loss or damage to the Fund
resulting from use of the Securities System if caused by any
negligence, misfeasance or misconduct of the Custodian or any of its
agents or of any of its or their employees or from any failure of the
Custodian or any such agent to enforce effectively such rights as it
may have against the 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 Securities System or any other person
which the Custodian may have as a consequence of any such loss or
damage to the Fund if and to the extent that the Fund has not been made
whole for any such loss or damage.
C. Liability of the Custodian with respect to Subcustodians
The Custodian shall be liable to the Fund for any loss or damage to the
Fund caused by or resulting from the acts or omissions of any
Subcustodian to the extent that under the terms set forth in the
subcustodian agreement between the Custodian and the Subcustodian (or
in the subcustodian agreement between a Subcustodian and any secondary
Subcustodian), the Subcustodian (or secondary Subcustodian) has failed
to perform in accordance with the standard of conduct imposed under
such subcustodian agreement as determined in accordance with the law
which is adjudicated to govern such agreement and in accordance with
any determination of any court as to the duties of said Subcustodian
pursuant to said agreement. The Custodian shall also be liable to the
Fund for its own negligence in transmitting any instructions received
by it from the Fund and for its own negligence in connection with the
delivery of any securities or funds held by it to any Subcustodian.
D. Standard of Care; Liability; Indemnification - The
Custodian shall be held only to the exercise of reasonable care and
diligence in carrying out the provisions of this Agreement, provided
that the Custodian shall not thereby be
-23-
required to take any action which is in contravention of any applicable
law. The Fund agrees to indemnify and hold harmless the Custodian and
its nominees from all claims and liabilities (including counsel fees)
incurred or assessed against it or its nominees in connection with the
performance of this Agreement, except such as may arise from its or its
nominee's breach of the relevant standard of conduct set forth in this
Agreement. Without limiting the foregoing indemnification obligation of
the Fund, the Fund agrees to indemnify the Custodian and any nominee in
whose name portfolio securities or other property of the Fund is
registered against any liability the Custodian or such nominee may
incur by reason of taxes assessed to the Custodian or such nominee or
other costs, liability or expense incurred by the Custodian or such
nominee resulting directly or indirectly from the fact that portfolio
securities or other property of the Fund is registered in the name of
the Custodian or such nominee.
It is also understood that the Custodian shall not be liable
for any loss involving any securities, currencies, deposits or other
property of the Fund, whether maintained by it, a Subcustodian, a
securities depository, an agent of the Custodian or a Subcustodian, a
Securities System, or a Banking Institution, or for any loss arising
from a foreign currency transaction or contract, where the loss results
from a Sovereign Risk or where the entity maintaining such securities,
currencies, deposits or other property of the Fund, whether the
Custodian, a Subcustodian, a securities depository, an agent of the
Custodian or a Subcustodian, a Securities System or a Banking
Institution, has exercised reasonable care maintaining such property or
in connection with the transaction involving such property. A
"Sovereign Risk" shall mean nationalization, expropriation,
devaluation, revaluation, confiscation, seizure, cancellation,
destruction or similar action by any governmental authority, de facto
or de jure; or enactment, promulgation, imposition or enforcement by
any such governmental authority of currency restrictions, exchange
controls, taxes, levies or other charges affecting the Fund's property;
or acts of war, terrorism, insurrection or
-24-
revolution; or any other act or event beyond the Custodian's control.
E. Reimbursement of Advances - The Custodian shall be entitled
to receive reimbursement from the Fund on demand, in the manner
provided in Section 7, for its cash disbursements, expenses and charges
(including the fees and expenses of any Subcustodian or any Agent) in
connection with this Agreement, but excluding salaries and usual
overhead expenses.
F. Security for Obligations to Custodian - If the Fund shall
require the Custodian to advance cash or securities for any purpose for
the benefit of the Fund, including in connection with foreign exchange
contracts or options (collectively, an "Advance"), or if the Custodian
or any nominee thereof shall incur or be assessed any taxes, charges,
expenses, assessments, claims or liabilities in connection with the
performance of this Agreement (collectively a "Liability"), except such
as may arise from its or such nominee's breach of the relevant standard
of conduct set forth in this Agreement, then in such event any property
at any time held for the account of the Fund by the Custodian or a
Subcustodian shall be security for such Advance or Liability and if the
Fund shall fail to repay or indemnify the Custodian promptly, the
Custodian shall be entitled to utilize available cash and to dispose of
the Fund's property, including securities, to the extent necessary to
obtain reimbursement or indemnification.
G. 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 as its agent (an "Agent") to carry out such of
the provisions of this Agreement as the Custodian may from time to time
direct, provided, however, that the appointment of such Agent (other
than an Agent appointed pursuant to the third paragraph of Section 3)
shall not relieve the Custodian of any of its responsibilities under
this Agreement.
-25-
▇. ▇▇▇▇▇▇ of Attorney - Upon request, the Fund shall deliver
to the Custodian such proxies, powers of attorney or other instruments
as may be reasonable and necessary or desirable in connection with the
performance by the Custodian or any Subcustodian of their respective
obligations under this Agreement or any applicable subcustodian
agreement.
7. Compensation of the Custodian: The Fund shall pay the Custodian a
custody fee based on such fee schedule as may from time to time be agreed upon
in writing by the Custodian and the Fund. Such fee, together with all amounts
for which the Custodian is to be reimbursed in accordance with Section 6D, shall
be billed to the Fund in such a manner as to permit payment by a direct cash
payment to the Custodian.
8. Termination; Successor Custodian: This Agreement shall continue in
full force and effect until 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 seventy five (75) days after the date
of such delivery or mailing. In the event of termination the Custodian shall be
entitled to receive prior to delivery of the securities, funds and other
property held by it all accrued fees and unreimbursed expenses the payment of
which is contemplated by Sections 6D and 7, upon receipt by the Fund of a
statement setting forth such fees and expenses.
In the event of the appointment of a successor custodian, it
is agreed that the funds and securities owned by the Fund and held by
the Custodian or any Subcustodian shall be delivered to the successor
custodian, and the Custodian agrees to cooperate with the Fund in
execution of documents and performance of other actions necessary or
desirable in order to substitute the successor custodian for the
Custodian under this Agreement.
9. Amendment: This Agreement constitutes the entire understanding and
agreement of the parties hereto with respect
-26-
to the subject matter hereof. No provision of this Agreement may be amended or
terminated except by a statement in writing signed by the party against which
enforcement of the amendment or termination is sought.
In connection with the operation of this Agreement, the Custodian and
the Fund may agree in writing from time to time on
such provisions interpretative 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. No interpretative or additional provisions made as provided in
the preceding sentence shall be deemed to be an amendment of this Agreement.
The section headings in this Agreement are for the convenience of the
parties and in no way alter, amend, limit or restrict the contractual
obligations of the parties set forth in this Agreement.
10. Governing Law: This instrument is executed and delivered in The
Commonwealth of Massachusetts and shall be governed by and construed according
to the laws of said Commonwealth.
11. Notices: Notices and other writings delivered or mailed postage
prepaid to the Fund addressed to the Fund at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or to such other address as the Fund may have designated to
the Custodian in writing, or to the Custodian at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Manager, Securities Department, or to such other
address as the Custodian may have designated to the Fund in writing, shall be
deemed to have been properly delivered or given hereunder to the respective
addressee.
12. Binding Effect: This Agreement shall be binding on and shall inure
to the benefit of the Fund and the Custodian and their respective successors and
assigns, provided that neither party hereto may assign this Agreement or any of
its rights or obligations hereunder without the prior written consent of the
other party.
-27-
13. Counterparts: This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original. This Agreement shall
become effective when one or more counterparts have been signed and delivered by
each of the parties.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed in its name and behalf on the day and year first above written.
PIONEER INDIA FUND ▇▇▇▇▇ BROTHERS ▇▇▇▇▇▇▇▇ & CO.
By By
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Secretary
-28-