Bankers Trust Company EX-99.B8A
Xxx Xxxxxxx Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
Mailing Address:
X.X. Xxx 000, Xxxxxx Xxxxxx Xxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Mutual Fund/Business Trust/Series
CUSTODIAN AGREEMENT
AGREEMENT dated as of June 1, 1996 between BANKERS TRUST COMPANY (the
"Custodian") and those registered investment companies listed on Exhibit A
hereto, as such Exhibit shall be amended from time to time (each, a
"Customer").
WHEREAS, the Customer may be organized with one or more series of
shares, each of which shall represent an interest in a separate portfolio of
Securities and Cash (each as hereinafter defined) (all such existing and
additional series now or hereafter listed on Exhibit A being hereafter
referred to individually as a "Portfolio" and collectively, as the
"Portfolios"); and
WHEREAS, the Customer desires to appoint the Custodian as custodian
on behalf of the Portfolios under the terms and conditions set forth in this
Agreement, and the Custodian has agreed to so act as custodian.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the parties hereto agree as follows:
1. Employment of Custodian. The Customer hereby employs the Custodian
as custodian of all assets of each Portfolio which are delivered to and
accepted by the Custodian or any Subcustodian (as that term is defined in
Section 4) (the "Property") pursuant to the terms and conditions set forth
herein. Without limitation, such Property shall include stocks and other
equity interests of every type, evidences of indebtedness, other instruments
representing same or rights or obligations to receive, purchase, deliver or
sell same and other non-cash investment property of a Portfolio which is
acceptable for deposit ("Securities") and cash from any source and in any
currency ("Cash"). The Custodian shall not be responsible for any property of
a Portfolio held or received by the Customer or others and not delivered to
the Custodian or any Subcustodian.
2. Maintenance of Securities and Cash at Custodian and Subcustodian
Locations. Pursuant to Instructions (as hereinafter defined in Section 14),
the Customer shall direct the Custodian to (a) settle Securities transactions
and maintain Cash in the country or other jurisdiction in which the principal
trading market for such Securities is located, where such Securities are to be
presented for payment or where such Securities are acquired and (b) maintain
cash and cash equivalents in such countries in amounts reasonably necessary to
effect the Customer's transactions in such Securities. Instructions to settle
Securities transactions (or Customer's transactions on behalf of a Portfolio)
in any country shall be deemed to authorize the holding of such Securities and
Cash in that country.
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3. Custody Account. The Custodian agrees to establish and maintain
one or more separate custody accounts on its books each in the name of, as
appropriate, the Customer or the Customer on behalf of a Portfolio (each, an
"Account") for any and all Property from time to time received and accepted by
the Custodian or any Subcustodian for the account of such Portfolio. Upon
delivery by the Customer to the Custodian of any Property belonging to a
Portfolio, the Customer shall, by Instructions, specifically indicate to which
Portfolio such Property belongs or if such Property belongs to more than one
Portfolio shall allocate such Property to the appropriate Portfolio. The
Custodian shall allocate such Property to the Accounts in accordance with the
Instructions; provided that the Custodian shall have the right, in its sole
discretion, to refuse to accept any Property that is not in proper form for
deposit for any reason. The Customer on behalf of each Portfolio, acknowledges
its responsibility as a principal for all of its obligations to the Custodian
arising under or in connection with this Agreement, warrants its authority to
deposit in the appropriate Account any Property received therefor by the
Custodian or a Subcustodian and to give, and authorize others to give,
Instructions relative thereto. The Custodian may deliver Securities of the
same class in place of those deposited in the Account; provided, however, the
Securities so delivered shall be subject to the same restrictions on transfer
(if any) and shall be of the same market value as the Securities that are the
subject of the Instructions, unless the prevailing market practice in a market
causes the Custodian and the Subcustodian, in the exercise of reasonable care,
to be unable to obtain delivery of Securities which meet the requirements
described in this proviso, in which case, the Custodian shall provide the
Customer prompt written notice of delivery of Securities not meeting such
requirements.
The Custodian shall hold, keep safe and protect as custodian for each
Account, on behalf of the Customer, all Property in such Account. All
transactions, including, but not limited to, foreign exchange transactions,
involving the Property shall be executed or settled solely in accordance with
Instructions (which shall specifically reference the Account for which such
transaction is being settled) pursuant to the terms of this Agreement, except
that until the Custodian receives Instructions to the contrary, the Custodian
will:
(a) collect all interest and dividends and all other income and
payments, whether paid in cash or in kind, on the Property,
as the same become payable and credit the same to the
appropriate Account, and provide prompt notice of any such
actions;
(b) present for payment all Securities held in an Account which
are called, redeemed or retired or otherwise become payable
and all coupons and other income items which call for
payment upon presentation to the extent that the Custodian
or Subcustodian is actually aware of such opportunities and
hold the Cash received in such Account pursuant to this
Agreement, and provide prompt notice of any such actions;
(c) (i) exchange Securities where the exchange is purely
ministerial (including, without limitation, the exchange of
temporary securities for those in definitive form and the
exchange of warrants, or other documents of entitlement to
securities, for the Securities themselves) and (ii) when
notification of a tender or exchange offer (other than
ministerial exchanges described in (i) above) is received
for an Account, take all reasonable steps under the
circumstances to obtain Instructions, provided that if such
Instructions are not received in time for the Custodian to
take timely action, no action shall be taken with respect
thereto;
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(d) whenever notification of a rights entitlement or a
fractional interest resulting from a rights issue, stock
dividend or stock split is received for an Account and such
rights entitlement or fractional interest bears an
expiration date, if after taking all reasonable steps under
the circumstances to obtain Instructions such Instructions
are not received in time for the Custodian to take timely
action or if actual notice of such actions was received too
late for Custodian reasonably to seek Instructions, sell in
the discretion of the Custodian (which sale the Customer
hereby authorizes the Custodian to make) such rights
entitlement or fractional interest and credit the Account
with the net proceeds of such sale;
(e) execute in the Customer's name for an Account, whenever the
Custodian deems it appropriate, such ownership and other
certificates as may be required to obtain the payment of
income from the Property in such Account;
(f) pay for each Account, any and all taxes and levies in the
nature of taxes imposed on interest, dividends or other
similar income on the Property in such Account by any
governmental authority. In the event there is insufficient
Cash available in such Account to pay such taxes and levies,
the Custodian shall promptly notify the Customer of the
amount of the shortfall and the Customer, at its option, may
deposit additional Cash in such Account or take steps to
have sufficient Cash available. The Customer agrees, when
and if requested by the Custodian and required in connection
with the payment of any such taxes to cooperate with the
Custodian in furnishing information, executing documents or
otherwise; and
(g) appoint brokers and agents for any of the ministerial
transactions involving the Securities described in (a) -
(f), including, without limitation, affiliates of the
Custodian or any Subcustodian.
4. Subcustodians and Securities Systems. The Customer authorizes and
instructs the Custodian to hold the Property in each Account in custody
accounts which have been established by the Custodian with (a) one of its U.S.
branches or another U.S. bank or trust company or branch thereof located in
the U.S. which is itself qualified under the Investment Company Act of 1940,
as amended ("1940 Act"), to act as custodian (individually, a "U.S.
Subcustodian"), or a U.S. securities depository or clearing agency or system
in which the Custodian or a U.S. Subcustodian participates (individually, a
"U.S. Securities System") or (b) one of its non-U.S. branches or
majority-owned non-U.S. subsidiaries, a non-U.S. branch or majority-owned
subsidiary of a U.S. bank or a non-U.S. bank or trust company, acting as
custodian (individually, a "non-U.S. Subcustodian"; U.S. Subcustodians and
non-U.S. Subcustodians, collectively, "Subcustodians"), or a non-U.S.
depository or clearing agency or system in which the Custodian or any
Subcustodian participates (individually, a "non-U.S. Securities System"; U.S.
Securities System and non-U.S. Securities System, collectively, "Securities
System"), provided that in each case in which a U.S. Subcustodian or U.S.
Securities System is employed, Instructions approving the employment of each
such Subcustodian or Securities System shall have been received by Custodian;
provided further that in each case in which a non-U.S. Subcustodian or
non-U.S. Securities System is employed, (a) such Subcustodian or Securities
System either is (i) a "qualified U.S. bank" as defined by Rule 17f-5 under
the 1940 Act as such Rule may be amended from time to time ("Rule 17f-5") or
(ii) an "eligible foreign custodian" within the meaning of Rule 17f-5 or such
Subcustodian or Securities System is the subject of an order granted by the
U.S. Securities and Exchange Commission ("SEC") exempting such agent or the
subcustody arrangements thereto from all or part of the provisions of Rule
17f-5 and (b) Instructions approving in advance the employment of such
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non-U.S. Subcustodian, and the agreement between the Custodian and such
non-U.S. Subcustodian, shall have been received by Custodian; it being
understood that the Custodian shall have no liability or responsibility for
determining whether the approval of any Subcustodian or Securities System has
been proper under the 1940 Act or any rule or regulation thereunder.
Upon receipt of Instructions, the Custodian agrees to cease the
employment of any previously approved Subcustodian or Securities System with
respect to the Customer, and if desirable and practicable, appoint a
replacement subcustodian or securities system in accordance with the
provisions of this Section. In addition, the Custodian may, at any time in its
discretion, upon written notification to the Customer, terminate the
employment of any Subcustodian or Securities System.
Upon request of the Customer, the Custodian shall deliver to the
Customer annually a certificate stating: (a) the identity of each non-U.S.
Subcustodian and non-U.S. Securities System then acting on behalf of the
Custodian and the name and address of the governmental agency or other
regulatory authority that supervises or regulates such non-U.S Subcustodian
and non-U.S. Securities System; (b) the countries in which each non-U.S.
Subcustodian or non-U.S. Securities System is located; and (c) so long as Rule
17f-5 requires the Customer's Board of Directors or Trustees to directly
approve its foreign custody arrangements, such other information relating to
such non-U.S. Subcustodians and non-U.S. Securities Systems as may reasonably
be requested by the Customer to ensure compliance with Rule 17f-5. So long as
Rule 17f-5 requires the Customer's Board of Directors or Trustees to directly
approve its foreign custody arrangements, the Custodian also shall furnish
annually to the Customer information concerning such non-U.S. Subcustodians
and non-U.S. Securities Systems similar in kind and scope as that furnished to
the Customer in connection with the initial approval of this Agreement.
Custodian agrees to promptly notify the Customer if, in the normal course of
its custodial activities, the Custodian becomes aware of any material adverse
changes in the facts or circumstances upon which such information is based or
has reason to believe that any non-U.S. Subcustodian or non-U.S. Securities
System has ceased to be a qualified U.S. bank or an eligible foreign custodian
each within the meaning of Rule 17f-5 or has ceased to be subject to an
exemptive order from the SEC. Any selection of and form of contract with a
Subcustodian shall be subject to approval by the Customer that such selection
and contract are consistent with the requirements of Rule 17f-5 (and Rule
17f-4, if applicable) under the 1940 Act, and the Custodian warrants that such
arrangement shall comply with Section 5 of this Agreement.
5. Use of Subcustodian. With respect to Property in an Account which
is maintained by the Custodian in the custody of a Subcustodian employed
pursuant to Section 4:
(a) The Custodian will identify on its books as belonging to the
Customer on behalf of a Portfolio, any Property held by such
Subcustodian.
(b) Any Property in the Account held by a Subcustodian will be
subject only to the instructions of the Custodian or its
agents.
(c) Property deposited with a Subcustodian will be maintained in
an account holding only assets for customers of the
Custodian.
(d) Any agreement the Custodian shall enter into with a non-U.S.
Subcustodian with respect to the holding of Property shall
require that (i) the Account will be adequately indemnified
or its losses adequately insured in the event of loss; (ii)
so long as and to the extent that Rule 17f-5 requires, the
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Property is not subject to any right, charge, security
interest, lien or claim of any kind in favor of such
Subcustodian or its creditors except a claim for payment in
accordance with such agreement for their safe custody or
administration, (iii) so long as and to the extent that Rule
17f-5 requires, beneficial ownership of such Property be
freely transferable without the payment of money or value
other than for safe custody or administration, (iv) adequate
records will be maintained identifying the Property held
pursuant to such Agreement as belonging to the Custodian, on
behalf of its customers and (v) officers of or auditors
employed by, or other representatives of or designated by,
the Custodian, including the independent public accountants
of or designated by, the Customer be given access to the
books and records of such Subcustodian relating to its
actions under its agreement pertaining to any Property held
by it thereunder or confirmation of or pertinent information
contained in such books and records be furnished to such
persons designated by the Custodian.
6. Use of Securities System. With respect to Property in the
Account(s) which are maintained by the Custodian or any Subcustodian in the
custody of a Securities System employed pursuant to Section 4:
(a) The Custodian shall, and the Subcustodian will be required
by its agreement with the Custodian to, identify on its
books such Property as being held for the account of the
Custodian or Subcustodian for its customers.
(b) Any Property held in a Securities System for the account of
the Custodian or a Subcustodian will be subject only to the
instructions of the Custodian or such Subcustodian, as the
case may be.
(c) Property deposited with a Securities System will be
maintained in an account holding only assets for customers
of the Custodian or Subcustodian, as the case may be, unless
precluded by applicable law, rule, or regulation.
(d) The Custodian shall provide the Customer with any report
obtained by the Custodian on the Securities System's
accounting system, internal accounting control and
procedures for safeguarding securities deposited in the
Securities System.
7. Agents. Except for holding of Property pursuant to Section 4
hereof, the Custodian may at any time or times in its sole discretion, upon
advance written notification to Customer, appoint (or remove) any other U.S.
bank or trust company which is itself qualified under the 1940 Act to act as
custodian, as its 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 any agent shall not, under any circumstances, relieve the
Custodian of its responsibilities or liabilities hereunder.
8. Records, Ownership of Property, Statements, Opinions of
Independent Certified Public Accountants.
(a) The ownership of the Property whether Securities, Cash and/or
other property, and whether held by the Custodian or a Subcustodian or in a
Securities System as authorized herein, shall be clearly recorded on the
Custodian's books as belonging to the appropriate Account and not for the
Custodian's own interest. Where certificates are legended or otherwise not
fungible with publicly traded certificates (and in other cases where the
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Custodian and the Customer may agree), the Customer reserves the right to
instruct the Custodian as to the name only in which such Securities shall be
registered and the Custodian, to the extent reasonably practicable, shall
comply with such Instructions; provided, however if Custodian reasonably
determines that compliance with such Instructions is not reasonably
practicable or otherwise may conflict with applicable law, rule or regulation,
Custodian shall promptly notify Customer and shall comply with reasonable
alternatives as to which the parties may agree. The Custodian shall keep
accurate and detailed accounts of all investments, receipts, disbursements and
other transactions for each Account. All accounts, books and records of the
Custodian relating thereto shall be open to inspection and audit at all
reasonable times during normal business hours by any person designated by the
Customer. All such books, records and accounts shall be maintained and
preserved in the form reasonably requested by the Customer and in accordance
with the 1940 Act and the Rules and Regulations thereunder, including, without
limitation, Section 31 thereof and Rule 31a-1 and 31a-2 thereunder. All books,
records and accounts pertaining to the Customer and the Accounts, which are in
the possession of the Custodian, shall be the property of the Customer and
such materials or (unless the delivery of original materials is required
pursuant to applicable law) legible copies thereof in a format acceptable to
the Customer, shall be surrendered promptly upon request. The Custodian will
supply to the Customer from time to time, as mutually agreed upon, a statement
in respect to any Property in an Account held by the Custodian or by a
Subcustodian. In the absence of the filing in writing with the Custodian by
the Customer of exceptions or objections to any such statement within one
hundred eighty (180) days of the mailing thereof, the Customer shall be deemed
to have approved such statement and in such case or upon written approval of
the Customer of any such statement, such statement shall be presumed to be for
all purposes correct with respect to all information set forth therein, absent
manifest errors or omissions.
(b) The Custodian shall take all reasonable action as the Customer
may request to obtain from year to year favorable opinions from the Customer's
independent certified public accountants with respect to the Custodian's
activities hereunder in connection with the preparation of the Customer's Form
N-1A and the Customer's Form N-SAR or other periodic reports to the SEC and
with respect to any other requirements of the SEC.
(c) At the request of the Customer, the Custodian shall deliver to
the Customer a written report prepared by the Custodian's independent
certified public accountants with respect to the services provided by the
Custodian under this Agreement, including, without limitation, the Custodian's
accounting system, internal accounting control and procedures for safeguarding
Cash and Securities, including Cash and Securities deposited and/or maintained
in a Securities System or with a Subcustodian. Such report shall be of
sufficient scope and in sufficient detail as may reasonably be required by the
Customer and as may reasonably be obtained by the Custodian.
(d) The Customer may elect to participate in any of the electronic
on-line service and communications systems offered by the Custodian which can
provide the Customer, on a daily basis, with the ability to view on-line or to
print on hard copy various reports of Account activity and of Securities
and/or Cash being held in any Account. To the extent that such service shall
include market values of Securities in an Account, the Customer hereby
acknowledges that the Custodian now obtains and may in the future obtain
information on such values from outside sources that the Custodian considers
to be reliable and the Customer agrees that the Custodian (i) does not verify
or represent or warrant either the reliability of such service nor the
accuracy or completeness of any such information furnished or obtained by or
through such service and (ii) shall be without liability in selecting such
service or furnishing any information derived therefrom. To the extent that
such service shall provide access to information concerning (i) all
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transactions involving the delivery in and out of Custodian of Cash and/or
Securities; (ii) payments of principal and interest or dividends; (iii)
pending transactions and fails; (iv) schedules of Custodian holdings,
Custodian shall comply with the standards for reports furnished in accordance
with Section 8(a) above.
9. Holding of Securities, Nominees, etc. Securities in an Account
which are held by the Custodian or any Subcustodian may be held by such entity
in the name of the Customer, on behalf of a Portfolio, in the Custodian's or
Subcustodian's name, in the name of the Custodian's or Subcustodian's nominee,
or in bearer form. Securities that are held by a Subcustodian or which are
eligible for deposit in a Securities System as provided above may be
maintained with the Subcustodian or the Securities System in an account for
the Custodian's or Subcustodian's customers, unless prohibited by law, rule,
or regulation. So long as and to the extent that Rule 17f-5 shall permit, the
Custodian or Subcustodian, as the case may be, may combine certificates
representing Securities held in an Account with certificates of the same issue
held by it as fiduciary or as a custodian. In the event that any Securities in
the name of the Custodian or its nominee or held by a Subcustodian and
registered in the name of such Subcustodian or its nominee are called for
partial redemption by the issuer of such Security, the Custodian may, subject
to the rules or regulations pertaining to allocation of any Securities System
in which such Securities have been deposited, allot, or cause to be allotted,
the called portion of the respective beneficial holders of such class of
security in any manner the Custodian deems to be fair and equitable and shall
provide Customer prompt notice of any such action.
10. Proxies, etc. With respect to any proxies, notices, reports or
other communications relative to any of the Securities in any Account, the
Custodian shall perform such services and only such services relative thereto
as are (i) set forth in Section 3 of this Agreement, (ii) described in Exhibit
B attached hereto (as such service therein described may be in effect from
time to time) (the "Proxy Service") and (iii) as may otherwise be agreed upon
between the Custodian and the Customer. The liability and responsibility of
the Custodian in connection with the Proxy Service referred to in (ii) of the
immediately preceding sentence and in connection with any additional services
which the Custodian and the Customer may agree upon as provided in (iii) of
the immediately preceding sentence shall be as set forth in the description of
the Proxy Service and as may be agreed upon by the Custodian and the Customer
in connection with the furnishing of any such additional service and shall not
be affected by any other term of this Agreement. Neither the Custodian nor its
nominees or agents shall vote upon or in respect of any of the Securities in
an Account, execute any form of proxy to vote thereon, or give any consent or
take any action (except as provided in Section 3) with respect thereto except
upon the receipt of Instructions relative thereto.
11. Segregated Account. To assist the Customer in complying with the
requirements of the 1940 Act and the rules and regulations thereunder, the
Custodian shall, upon receipt of Instructions, establish and maintain a
segregated account or accounts on its books for and on behalf of a Portfolio.
The Custodian shall hold in such segregated accounts for the Account of a
Portfolio, Securities so designated by Customer.
12. Settlement Procedures. (a) Securities will be transferred,
exchanged or delivered by the Custodian or a Subcustodian upon receipt by the
Custodian of Instructions which include all information required by the
Custodian. Settlement and payment for Securities received for an Account and
delivery of Securities out of such Account may be effected in accordance with
the customary or established securities trading or securities processing
practices and procedures in the jurisdiction or market in which the
transaction occurs, including, without limitation, delivering Securities to
the purchaser thereof or to a dealer therefor (or an agent for such purchaser
or dealer) against a receipt with the expectation of receiving later payment
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for such Securities from such purchaser or dealer, as such practices and
procedures may be modified or supplemented in accordance with the standard
operating procedures of the Custodian in effect from time to time for that
jurisdiction or market. So long as and to the extent that the Custodian has
exercised reasonable care, the Custodian shall not be liable for any loss
which results from effecting transactions in accordance with the customary or
established securities trading or securities processing practices and
procedures in the applicable jurisdiction or market.
(b) With respect to Accounts containing Securities maintained outside
the United States, the Custodian shall credit or debit such Accounts on a
contractual settlement date with Cash or Securities with respect to any sale,
exchange or purchase of Securities.
(i) The Custodian may reverse credits or debits made to
the Accounts in its discretion if the related
transaction fails to settle within a reasonable
period, determined by the Custodian in its
discretion, after the contractual settlement date
for the related transaction; provided that, the
Custodian shall give Customer prior notification of
any such reversal. Where the foregoing notification
is oral, the Custodian shall promptly provide
written notification of the same (which
confirmation may be electronic).
(ii) If any Securirites delivered pursuant to this
Section 12(b) are returned by the recipient
thereof, the Custodian may, after receiving advance
approval from the Customer, which approval shall
not be unreasonably withheld, reverse the credits
and debits of the particular transaction at any
time.
(c) Without affecting the obligations of the Custodian under Section
12(b) and except as otherwise may be agreed upon by the parties hereto, the
Custodian shall not be required to comply with Instructions to settle the
purchase of any Securities for the Account unless there is sufficient Cash in
the Account at the time or to settle the sale of any Securities in the Account
unless such Securities are in deliverable form. Notwithstanding the foregoing,
if the purchase price of such securities exceeds the amount of Cash in the
Account at the time of settlement of such purchase, the Custodian may, in its
sole discretion, but in no way shall have any obligation to, permit an
overdraft in the Account in the amount of the difference solely for the
purpose of facilitating the settlement of such purchase of securities for
prompt delivery for the Account. The Customer agrees to immediately repay the
amount of any such overdraft in the ordinary course of business, exclusively
out of the Property in the Account that has engaged in the transaction that
gives rise to such overdraft and further agrees to indemnify and hold the
Custodian harmless from and against Custodian's actual losses, damages, costs
and expenses, including the charges for such overdraft as set forth in Exhibit
C hereof exclusively out of such Property, provided however, that Customer
shall not be liable for any consequential or special damages. The Customer
agrees that it will not use the Account to facilitate the purchase of
securities if at the time Customer places the purchase order it knows there
will not be sufficient funds in the Account at the time of settlement (which
funds shall not include the proceeds of the sale of the purchased securities).
13. Permitted Transactions. The Customer agrees that it will cause
transactions to be made pursuant to this Agreement only upon Instructions in
accordance with Section 14 and only for the purposes listed below.
(a) In connection with the purchase or sale of Securities at prices
as confirmed by Instructions.
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(b) When Securities are called, redeemed or retired, or otherwise
become payable.
(c) In exchange for or upon conversion into other securities alone or
other securities and cash pursuant to any plan of merger, consolidation,
reorganization, recapitalization or readjustment.
(d) Upon conversion of Securities pursuant to their terms into other
securities.
(e) Upon exercise of subscription, purchase or other similar rights
represented by Securities.
(f) For the payment of interest, taxes, management or supervisory
fees, distributions or operating expenses.
(g) In connection with any borrowings by the Customer requiring a
pledge of Securities, but only against receipt of amounts borrowed.
(h) In connection with any loans or repurchase agreements, but only
against receipt of collateral as specified in Instructions which shall reflect
any restrictions applicable to the Customer.
(i) For the purpose of redeeming shares of the capital stock of the
Customer against delivery of the shares to be redeemed to the Custodian, a
Subcustodian or the Customer's transfer agent.
(j) For the purpose of redeeming in kind shares of the Customer
against delivery of the shares to be redeemed to the Custodian, a Subcustodian
or the Customer's transfer agent.
(k) For delivery in accordance with the provisions of any agreement
among the Customer, on behalf of a Portfolio, 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., relating to
compliance with the rules of The Options Clearing Corporation, the Commodities
Futures Trading Commission and of any registered national securities exchange,
or of any similar organization or organizations, regarding escrow or other
arrangements in connection with transactions by the Customer.
(l) In the case of covered call options, the issuance of a depository
pledge receipt or similar notice of custody or for release of Securities to
designated brokers under such covered call options, provided, however, that
such Securities shall be released only upon payment to the Custodian of monies
for the premium due and a receipt for the Securities which are to be held in
escrow. Upon exercise of the option, or at expiration, the Custodian will
receive the Securities previously deposited from broker. The Custodian will
act strictly in accordance with Instructions in the delivery of Securities to
be held in escrow and will have no responsibility or liability for any such
Securities which are not returned promptly when due other than to make proper
request for such return.
(m) For spot or forward foreign exchange transactions to facilitate
security trading or receipt of income from Securities related transactions.
(n) In connection with the establishment of a segregated account in
accordance with Section 11 hereof.
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(o) Upon the termination of this Agreement as set forth in Section 20
hereof.
(p) For the purpose of paying distributions to shareholders of the
capital stock of the Customer.
(q) In connection with transactions under master repurchase
agreements and master accounts and the delivery of inital and variation margin
for futures contracts.
(r) For other proper purposes as may be specified in Instructions.
The Customer agrees that the Custodian shall have no obligation to
verify the purpose for which a transaction is being effected; provided that if
the Custodian has actual knowledge that the transaction is for an improper
purpose, it shall notify the Customer.
14. Instructions. The term "Instructions" means instructions from the
Customer in respect of any of the Custodian's duties hereunder which have been
received by the Custodian at its address set forth in Section 21 below (i) in
writing (including, without limitation, facsimile transmission) or by tested
telex signed or given by such one or more person or persons as the Customer
shall have from time to time authorized in writing to give the particular
class of Instructions in question and whose name and (if applicable) signature
and office address have been filed with the Custodian, or (ii) which have been
transmitted electronically through an electronic on-line service and
communications system offered by the Custodian or other electronic instruction
system acceptable to the Custodian, or (iii) a telephonic or oral
communication by one or more persons as the Customer shall have from time to
time authorized to give the particular class of Instructions in question and
whose name has been filed with the Custodian; or (iv) upon receipt of such
other form of instructions as the Customer may from time to time authorize in
writing and which the Custodian has agreed in writing to accept. Instructions
in the form of oral communications shall be confirmed by the Customer by
tested telex or writing (including, without limitation, facsimile
transmission) in the manner set forth in clause (i) above, but the lack of
such confirmation shall in no way affect any action taken by the Custodian in
reliance upon such oral instructions prior to the Custodian's receipt of such
confirmation. Instructions may relate to specific transactions or to types or
classes of transactions, and may be in the form of standing instructions, such
as the Instructions communicated in the letter to Xxxxx Xxxxx dated November
14, 1996 concerning confirmation of wire transfers sent to the Custodian by
facsimile transmission, the terms of which letter are incorporated herein by
reference.
The Custodian shall have the right to assume in the absence of notice
to the contrary from the Customer that any person whose name is on file with
the Custodian pursuant to this Section has been authorized by the Customer to
give the Instructions in question and that such authorization has not been
revoked. The Custodian may act upon and conclusively rely on, without any
liability to the Customer or any other person or entity for any losses
resulting therefrom, any Instructions reasonably believed by it in good faith
to be furnished by the proper person or persons as provided above.
15. Standard of Care. The Custodian shall be responsible for the
performance of only such duties as are set forth herein or contained in
Instructions given to the Custodian which are not contrary to the provisions
of this Agreement. The Custodian shall comply with all applicable provisions
and requirements of the 1940 Act, the Securities Act of 1933 (the "1933 Act"),
the 1934 Act, and any laws, rules, and regulations or governmental authorities
having jurisdiction with respect to the provisions which directly apply to the
services provided to the Customer hereunder. The Custodian will use reasonable
care with respect to the safekeeping of Property in each Account and, except
as otherwise expressly provided herein, in carrying out its obligations under
- 10 -
this Agreement. So long as and to the extent that it has exercised reasonable
care, the Custodian shall not be responsible for the title, validity or
genuineness of any Property or other property or evidence of title thereto
received by it or delivered by it pursuant to this Agreement and shall be held
harmless in acting upon, and may conclusively rely on, without liability for
any loss resulting therefrom, any notice, request, consent, certificate or
other instrument reasonably believed by it to be genuine and to be signed or
furnished by the proper party or parties, including, without limitation,
Instructions, and shall be indemnified by the Customer for any losses,
damages, costs and expenses (including, without limitation, the reasonable
fees and expenses of counsel) incurred by the Custodian and arising out of
action taken or omitted with reasonable care by the Custodian hereunder or
under any Instructions, such indemnification to be provided exclusively from
the Property in the Account as to which Custodian shall have acted (or failed
to act) when it incurred such losses, damages, costs and expenses. The
Custodian shall be liable to the Customer for any act or omission to act of
any Subcustodian to the same extent as if the Custodian committed such act
itself. With respect to a Securities System, the Custodian shall only be
responsible or liable for losses arising from employment of such Securities
System caused by the Custodian's own failure to exercise reasonable care. In
the event of any loss or damage to the Customer or, if the Customer shall
incur costs and expenses (including, without limitation, fees and expenses of
counsel) by reason of the failure of the Custodian or a Subcustodian to
utilize reasonable care, the Custodian shall be liable to the Customer to the
extent of the Customer's actual losses, damages, costs and expenses (including
reasonable fees and expenses of counsel) by reason of such failure without
reference to any special conditions or circumstances. In no event shall either
the Custodian or the Customer be liable for any consequential or special
damages of such other party. The Custodian shall be entitled to rely, and may
act, on advice of counsel (who may be counsel for the Customer) on all matters
and shall be without liability for any action reasonably taken or omitted
pursuant to such advice.
In the event the Customer subscribes to an electronic on-line service
and communications system offered by the Custodian, the Customer shall be
fully responsible for the security of the Customer's connecting terminal,
access thereto and the proper and authorized use thereof and the initiation
and application of continuing effective safeguards with respect thereto and
agrees to defend and indemnify the Custodian and hold the Custodian harmless
from and against any and all losses, damages, costs and expenses (including
the reasonable fees and expenses of counsel) incurred by the Custodian as a
result of any improper or unauthorized use of such terminal by the Customer or
by any others.
All collections of funds or other property paid or distributed in
respect of Securities in an Account, including funds involved in third-party
foreign exchange transactions, shall be made at the risk of the Customer.
Subject to the exercise of reasonable care, the Custodian shall have
no liability for any loss occasioned by delay in the actual receipt of notice
by the Custodian or by a Subcustodian of any payment, redemption or other
transaction regarding Securities in each Account in respect of which the
Custodian has agreed to take action as provided in Section 3 hereof. The
Custodian shall not be liable for any loss resulting from, or caused by, or
resulting from acts of governmental authorities (whether de jure or de facto),
including, without limitation, nationalization, expropriation, and the
imposition of currency restrictions; devaluations of or fluctuations in the
value of currencies; changes in laws and regulations applicable to the banking
or securities industry; market conditions that prevent the orderly execution
of securities transactions or affect the value of Property; acts of war,
terrorism, insurrection or revolution; strikes or work stoppages; the
- 11 -
inability of a local clearing and settlement system to settle transactions for
reasons beyond the control of the Custodian; hurricane, cyclone, earthquake,
volcanic eruption, nuclear fusion, fission or radioactivity, or other acts of
God.
Upon receipt by the Custodian of notice from a subcustodian, or
otherwise upon the Custodian becoming aware in the ordinary course of its
custodial activities, of any of the events (other than any of such events
which are acts of God) referred to in the immediately preceding paragraph, the
Custodian will as soon as practicable notify the Customer. The Customer may
discuss with the Custodian reasonable steps to safeguard the Property, and the
Custodian shall use reasonable efforts to take such steps as may be agreed
between the Customer and the Custodian; provided that should the Custodian in
good faith determine that the taking of any such steps would result in the
incurrence by the Custodian of costs, expenses and liabilities, the Custodian
need not take any such steps until the Customer shall have furnished to the
Custodian reasonable security or indemnity for such costs, expenses and
liabilities.
The Custodian shall, throughout the term of this Agreement, effect
and maintain insurance cover in respect of such risks with such insurers and
on such terms as it deems appropriate and necessary to protect the Property.
Nothing in this Section 15 shall prohibit the Custodian from self-insuring all
or any part of the risks relating to the performance of this Agreement as it
in its sole discretion deems appropriate, but only as long as Property could
be protected to the same extent as it would were such insurance maintained
with a third party insurer unaffiliated with Custodian; and if Custodian knows
or has reason to know that the Property is not so protected, Custodian shall
promptly notify Customer and shall be obligated to obtain appropriate and
necessary insurance from an unaffiliated third party insurer. The Custodian
shall furnish to the Customer upon request certification as to the
effectiveness and amounts of such insurance.
The Custodian maintains business line and technology resources
business continuity plans which are monitored internally and externally to
ensure that the plans are regularly updated and tested and comply with
firmwide standards. Upon request, Custodian shall provide written assurance to
the Customer of the continued maintenance of reasonable arrangements for the
emergency use of electronic data processing equipment to the extent
appropriate.
The Custodian shall have no liability in respect of any loss, damage
or expense suffered by the Customer, insofar as such loss, damage or expense
arises from the performance of the Custodian's duties hereunder by reason of
the Custodian's reasonable reliance upon records that were maintained for the
Customer by entities other than the Custodian prior to the Custodian's
employment under this Agreement.
The provisions of this Section shall survive termination of this
Agreement.
16. Investment Limitations and Legal or Contractual Restrictions or
Regulations. Provided that the Custodian exercises reasonable care to comply
with Instructions generally, and more particularly in connection with the
purchase, sale or exchange of Securities made by or for the Customer in any
country, the Custodian shall not be liable to the Customer and the Customer
agrees to indemnify the Custodian and its nominees, for any loss, damage or
expense suffered or incurred by the Custodian or its nominees arising out of
any violation of any investment restriction or other restriction or limitation
applicable to the Customer or any Portfolio pursuant to any contract or any
law or regulation. The provisions of this Section shall survive termination of
this Agreement.
- 12 -
17. Fees and Expenses. The Customer agrees to pay to the Custodian
such compensation for its services pursuant to this Agreement as may be
mutually agreed upon in writing from time to time and the Custodian's
reasonable out-of-pocket or incidental expenses in connection with the
performance of this Agreement, including (but without limitation) reasonable
legal fees as described herein and/or deemed necessary in the judgment of the
Custodian to keep safe or protect the Property in the Account. The initial fee
schedule is attached hereto as Exhibit C. The Customer hereby agrees to hold
the Custodian harmless from any liability or loss which is not due to the
Custodian's or a Subcustodian's lack of reasonable care resulting from any
taxes or other governmental charges, and any expense related thereto, which
may be imposed, or assessed with respect to any Property in an Account and
also agrees to hold the Custodian, its Subcustodians, and their respective
nominees harmless from any liability as a record holder of Property in such
Account. The Custodian is authorized to charge the applicable Account for such
items, including but not limited to amounts payable pursuant to indemnities
granted by the Customer under this Agreement; provided that Custodian shall
give Customer notification prior to effecting any such charge. The provisions
of this Section shall survive the termination of this Agreement.
18. Tax Reclaims. With respect to withholding taxes deducted and
which may be deducted from any income received from any Property in an
Account, the Custodian shall perform such services with respect thereto as are
described in Exhibit D attached hereto and shall in connection therewith be
subject to the standard of care set forth in such Exhibit D. Such standard of
care shall not be affected by any other term of this Agreement.
19. Amendment, Modifications, etc. No provision of this Agreement may
be amended, modified or waived except in a writing signed by the parties
hereto. No waiver of any provision hereto shall be deemed a continuing waiver
unless it is so designated. No failure or delay on the part of either party in
exercising any power or right under this Agreement operates as a waiver, nor
does any single or partial exercise of any power or right preclude any other
or further exercise thereof or the exercise of any other power or right.
20. Termination. (a) Termination of Entire Agreement. This Agreement
may be terminated by the Customer or the Custodian by sixty (60) days' written
notice to the other; provided that notice by the Customer shall specify the
names of the persons to whom the Custodian shall deliver the Securities in
each Account and to whom the Cash in such Account shall be paid. If notice of
termination is given by the Custodian, the Customer shall, within sixty (60)
days following the giving of such notice, deliver to the Custodian a written
notice specifying the names of the persons to whom the Custodian shall deliver
the Securities in each Account and to whom the Cash in such Account shall be
paid. In either case, the Custodian will deliver such Securities and Cash to
the persons so specified, after deducting therefrom any amounts which the
Custodian determines to be owed to it under Section 17. In addition, the
Custodian may in its discretion withhold from such delivery such Cash and
Securities as may be necessary to settle transactions pending at the time of
such delivery. If within sixty (60) days following the giving of a notice of
termination by the Custodian, the Custodian does not receive from the Customer
a written notice specifying the names of the persons to whom the Custodian
shall deliver the Securities in each Account and to whom the Cash in such
Account shall be paid, the Custodian, at its election, may upon advance
written notice to Customer deliver such Securities and pay such Cash to a bank
or trust company which is qualified as an eligible foreign custodian under
Rule 17f-5 of the 1940 Act and doing business in the State of New York to be
held and disposed of pursuant to the provisions of this Agreement, or may
continue to hold such Securities and Cash until a written notice as aforesaid
is delivered to the Custodian, provided that the Custodian's obligations shall
be limited to safekeeping and the duties outlined in this subsection 20(a);
- 13 -
provided that where the Custodian is the terminating party and the Custodian
had not notified the Customer that termination is for breach of this Agreement
by Customer, such sixty (60) day period shall be extended for an additional
period as requested by Customer of up to ninety (90) additional days.
(b) Termination as to One or More Portfolios. This Agreement may be
terminated by the Customer or the Custodian as to one or more Portfolios (but
less than all of the Portfolios) by delivery of an amended Exhibit A deleting
such Portfolios, in which case termination as to such deleted Portfolios shall
take effect sixty (60) days after the date of such delivery, or such earlier
time as mutually agreed. The execution and delivery of an amended Exhibit A
which deletes one or more Portfolios shall constitute a termination of this
Agreement only with respect to such deleted Portfolio(s), shall be governed by
the preceding provisions of Section 20 as to the identification of a successor
custodian and the delivery of Cash and Securities of the Portfolio(s) so
deleted to such successor custodian, and shall not affect the obligations of
the Custodian and the Customer hereunder with respect to the other Portfolios
set forth in Exhibit A, as amended from time to time.
21. Notices. Except as otherwise provided in this Agreement, all
requests, demands or other communications between the parties or notices in
connection herewith (a) shall be in writing, hand delivered or sent by telex,
telegram, cable, facsimile or other means of electronic communication agreed
upon by the parties hereto addressed, if to the Customer, to:
Delaware Group of Funds
0000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
if to the Custodian, to:
Bankers Trust Company
00 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
or in either case to such other address as shall have been furnished to the
receiving party pursuant to the provisions hereof and (b) shall be deemed
effective when received, or, in the case of a telex, when sent to the proper
number and acknowledged by a proper answerback.
22. Several Obligations of the Portfolios. With respect to any
obligations of the Customer on behalf of each Portfolio and each of its
related Accounts arising out of this Agreement, the Custodian shall look for
payment or satisfaction of any obligation solely to the assets and property of
the Portfolio and such Accounts to which such obligation relates as though the
Customer had separately contracted with the Custodian by separate written
instrument with respect to each Portfolio and its related Accounts.
- 14 -
23. Representations and Warranties.
(a) The Customer hereby represents and warrants to the Custodian
that:
(i) the employment of the Custodian and the allocation of
fees, expenses and other charges to any Account as herein provided, is not
prohibited by law or any governing documents or contracts to which the
Customer is subject;
(ii) the terms of this Agreement do not violate any
obligation by which the Customer is bound, whether arising by contract,
operation of law or otherwise;
(iii) this Agreement has been duly authorized by appropriate
action and when executed and delivered will be binding upon the Customer and
each Portfolio in accordance with its terms; and
(iv) the Customer will deliver to the Custodian such
evidence of such authorization as the Custodian may reasonably require,
whether by way of a certified resolution or otherwise.
(b) The Custodian hereby represents and warrants to the Customer
that:
(i) the terms of this Agreement do not violate any
obligation by which the Custodian is bound, whether arising by contract,
operation of law or otherwise;
(ii) this Agreement has been duly authorized by appropriate
action and when executed and delivered will be binding upon the Custodian in
accordance with its terms;
(iii) the Custodian will deliver to the Customer such
evidence of such authorization as the Customer may reasonably require, whether
by way of a certified resolution or otherwise; and
(iv) Custodian is qualified as a custodian under Sections
17(f) and 26(a) of the 1940 Act and warrants that it will remain so qualified
or upon ceasing to be so qualified shall promptly notify the Customer in
writing.
24. Governing Law and Successors and Assigns. This Agreement shall be
governed by the law of the State of New York and shall not be assignable by
either party, but shall bind the successors in interest of the Customer and
the Custodian.
25. Publicity. Unless material is produced in accordance with
applicable law, Customer shall furnish to Custodian at its office referred to
in Section 21 above, prior to any distribution thereof, copies of any material
prepared for distribution to any persons who are not parties hereto that refer
in any way to the Custodian. Customer shall not distribute or permit the
distribution of such materials if Custodian reasonably objects in writing
within ten (10) business days of receipt thereof (or such other time as may be
mutually agreed) after receipt thereof. The provisions of this Section shall
survive the termination of this Agreement.
26. Representative Capacity and Binding Obligation. A copy of the
Articles of Incorporation/Declaration of Trust of the Customer is on file with
The Secretary of the State of Maryland or in the Trust's offices, and notice
is hereby given that this Agreement is not executed on behalf of the Directors
or Trustees of the Customer as individuals, and the obligations of this
- 15 -
Agreement are not binding upon any of the Directors or Trustees, officers or
shareholders of the Customer individually but are binding only upon the assets
and property of the Portfolios.
The Custodian agrees that no shareholder, trustee, director or
officer of the Customer may be held personally liable or responsible for any
obligations of the Customer arising out of this Agreement.
27. Submission to Jurisdiction. Any suit, action or proceeding
arising out of this Agreement may be instituted in any State or Federal court
sitting in the City of Xxx Xxxx, Xxxxx xx Xxx Xxxx, Xxxxxx Xxxxxx of America,
and the Customer irrevocably submits to the non-exclusive jurisdiction of any
such court in any such suit, action or proceeding and waives, to the fullest
extent permitted by law, any objection which it may now or hereafter have to
the laying of venue of any such suit, action or proceeding brought in such a
court and any claim that such suit, action or proceeding was brought in an
inconvenient forum. Notwithstanding the foregoing, this Section shall not
limit any party from instituting suit in the competent court of any other
jurisdiction.
28. 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 hereto.
29. Confidentiality. The parties hereto agree that each shall treat
confidentially the terms and conditions of this Agreement and all information
provided by each party to the other regarding its business and operations. All
confidential information provided by a party hereto shall be used by any other
party hereto solely for the purpose of rendering services pursuant to this
Agreement and, except as may be required in carrying out this Agreement, shall
not be disclosed to any third party without the prior consent of such
providing party. The foregoing shall not be applicable to any information that
is publicly available when provided or thereafter becomes publicly available
other than through a breach of this Agreement, or that is required or
requested to be disclosed by any bank or other regulatory examiner of the
Custodian, Customer, or any Subcustodian, any auditor of the parties hereto,
by judicial or administrative process or otherwise by applicable law or
regulation.
30. Severability. If any provision of this Agreement is determined to
be invalid or unenforceable, such determination shall not affect the validity
or enforceability of any other provision of this Agreement.
31. Headings. The headings of the paragraphs hereof are included for
convenience of reference only and do not form a part of this Agreement.
DELAWARE GROUP OF FUNDS
on behalf of each Customer and Portfolio
listed on Exhibit A hereto
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President/Chief Administrative
Officer/Chief Financial Officer
- 16 -
BANKERS TRUST COMPANY
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
- 17 -
EXHIBIT A
To Custodian Agreement dated as of June 1, 1996 between Bankers Trust
Company and Delaware Group of Funds.
LIST OF PORTFOLIOS
The following is a list of Portfolios referred to in the first
WHEREAS clause of the above-referenced Custodian Agreement. Terms used herein
as defined terms unless otherwise defined shall have the meanings ascribed to
them in the above-referenced Custodian Agreement.
Customers: Portfolios
--------------------------------------------------------------------------------
Delaware Group Trend Fund, Inc.
Delaware Group Decatur Fund, Inc. Decatur Income Fund Series
Decatur Total Return Fund Series
Delaware Group Government Government Income Series
Fund, Inc.
Delaware Group Limited-Term U.S. Government Money Series
Government Funds, Inc.
Limited Term Government Fund Series
Delaware Cash Reserve, Inc.
Delaware Group Tax-Free
Money Fund, Inc.
Delaware Group Tax-Free Fund, Inc. Tax Free USA Fund Series
Tax-Free Insured Fund Series
Tax-Free USA Intermediate Fund Series
Delaware Pooled Trust, Inc. The Defensive Equity Portfolio
The Aggressive Growth Portfolio
The Fixed Income Portfolio
The Limited Term Maturity Portfolio
The Defensive Equity Small/ Mid-Cap Portfolio
Delaware Group Income Funds, Inc Strategic Income Fund Series
Customers: Portfolios
--------------------------------------------------------------------------------
Delaware Group Global Dividend and
Income Fund, Inc.
Dated as of: April 1, 1997 DELAWARE GROUP OF FUNDS,
on behalf of each Customer and Portfolio
listed on this Exhibit A to the
Custodian Agreement
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President/Chief Administrative
Officer/Chief Financial Officer
BANKERS TRUST COMPANY
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
EXHIBIT B
To Custodian Agreement dated as of June 1, 1996 between Bankers Trust
Company and Delaware Group of Funds.
PROXY SERVICE
The following is a description of the Proxy Service referred to in
Section 10 of the above referenced Custodian Agreement. Terms used herein as
defined terms shall have the meanings ascribed to them therein unless
otherwise defined below.
The Custodian provides a service, described below, for the
transmission of corporate communications in connection with shareholder
meetings relating to Securities held in Argentina, Australia, Austria, Canada,
Denmark, Finland, France, Germany, Greece, Hong Kong, Indonesia, Ireland,
Italy, Japan, Korea, Malaysia, Mexico, Netherlands, New Zealand, Pakistan,
Poland, Singapore, South Africa, Spain, Sri Lanka, Sweden, United Kingdom,
United States, and Venezuela. For the United States and Canada, the term
"corporate communications" means the proxy statements or meeting agenda, proxy
cards, annual reports and any other meeting materials received by the
Custodian. For countries other than the United States and Canada, the term
"corporate communications" means the meeting agenda only and does not include
any meeting circulars, proxy statements or any other corporate communications
furnished by the issuer in connection with such meeting. Non-meeting related
corporate communications are not included in the transmission service to be
provided by the Custodian except upon request as provided below.
The Custodian's process for transmitting and translating meeting
agendas will be as follows:
1) If the meeting agenda is not provided by the issuer in the
English language, and if the language of such agenda is in
the official language of the country in which the related
security is held, the Custodian will as soon as practicable
after receipt of the original meeting agenda by a
Subcustodian provide an English translation prepared by that
Subcustodian; provided, however, under no circumstances
(unless impracticable) shall a translation received by the
Custodian be supplied to Customer later than the day on
which action is required, at a time which shall enable
action timely to be taken.
2) If an English translation of the meeting agenda is
furnished, the local language agenda will not be furnished
unless requested.
Translations will be free translations and neither the Custodian nor
any Subcustodian will be liable or held responsible for the accuracy thereof
or any direct or indirect consequences arising therefrom, including without
limitation arising out of any action taken or omitted to be taken based
thereon.
If requested, the Custodian will, on a reasonable efforts basis,
endeavor to obtain any additional corporate communication such as annual or
interim reports, proxy statements, meeting circulars, or local language
agendas, and provide them in the form obtained.
Timing in the voting process is important and, in that regard, upon
receipt by the Custodian of notice from a Subcustodian, the Custodian will
provide a notice to the Customer indicating the deadline for receipt of its
- 2-
instructions to enable the voting process to take place effectively and
efficiently. As voting procedures will vary from market to market, attention
to any required procedures will be very important. Upon timely receipt of
voting instructions, the Custodian will promptly forward such instructions to
the applicable Subcustodian. If voting instructions are not timely received,
the Custodian shall have no liability or obligation to take any action.
For Securities held in markets other than those set forth in the
first paragraph, the Custodian will not furnish the material described above
or seek voting instructions. However, if requested to exercise voting rights
at a specific meeting, the Custodian will endeavor to do so on a reasonable
efforts basis without any assurance that such rights will be so exercised at
such meeting.
If the Custodian or any Subcustodian incurs extraordinary expenses in
exercising voting rights related to any Securities pursuant to appropriate
instructions or direction (e.g., by way of illustration only and not by way of
limitation, physical presence is required at a meeting and/or travel expenses
are incurred), upon receipt of Instructions to do so, such expenses will be
reimbursed out of the Account containing such Securities unless other
arrangements have been made for such reimbursement.
It is the intent of the Custodian to expand the Proxy Service to
include jurisdictions which are not currently included as set forth in the
second paragraph hereof. The Custodian will notify the Customer as to the
inclusion of additional countries or deletion of existing countries after
their inclusion or deletion and this Exhibit B will be deemed to be
automatically amended to include or delete such countries as the case may be.
Dated as of: June 1, 1996 DELAWARE GROUP OF FUNDS,
on behalf of each Customer and Portfolio
listed on Exhibit A to the Custodian Agreement
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President/Chief Administrative
Officer/Chief Financial Officer
BANKERS TRUST COMPANY
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
EXHIBIT C
To Custodian Agreement dated as of June 1, 1996 between Bankers Trust
Company and Delaware Group of Funds.
CUSTODY FEE SCHEDULE
Monthly Account Maintenance: No Charge
(including segregated accounts)
Regional Annual Asset and Per Transaction Fees:
TIER I International
ANNUAL ASSET FEE RECEIVE AND DELIVER
COUNTRY IN BASIS POINTS TRANSACTION FEES
------- --------------- ----------------
Australia 3.0 $50.00
Austria 5.0 $50.00
Belgium 4.0 $50.00
Canada 1.5 $50.00
Cedel 2.0 $25.00
Denmark 4.0 $50.00
Euroclear 2.0 $25.00
Finland 10.0 $75.00
France 4.0 $50.00
Germany 2.0 $30.00
Greece 35.0 $120.00
Hong Kong 5.0 $35.00
Indonesia 8.0 $35.00
Ireland 5.0 $50.00
Italy 3.0 $50.00
Japan 2.5 $50.00
Korea 15.0 $50.00
Malaysia 7.0 $50.00
Mexico 5.0 $50.00
Netherlands 4.0 $45.00
New Zealand 4.0 $50.00
Norway 5.0 $50.00
Philippines 8.0 $30.00
Singapore 7.0 $50.00
South Africa 5.0 $50.00
Spain 6.0 $50.00
Sweden 4.0 $50.00
Switzerland 3.0 $60.00
United Kingdom 1.5 $20.00
TIER II United States
Annual Asset Fee: 0.25 BASIS POINTS
Transaction Fees:
* DTC-Automated (as defined below) $3.00
* DTC Manual (as defined below) $10.00
* PTC Automated $6.00
* PTC Manual $10.00
* FED Automated $6.00
* FED Manual $10.00
* Physical Automated $15.00
* Physical Manual $19.00
* P&I Payments $2.00
* Redemptions $10.00
* Reorganizations Included in safekeeping charge
* Outgoing Wires $8.00
* Incoming Wires No Charge
* Internal Cash Transfers No Charge
NOTES
1. Fees for investments in countries not listed will be negotiated separately.
2. There is no cost associated with the inward transition of assets, but the
client is responsible for all re-registration charges and stamp duty; i.e.
Spain and Indonesia.
3. The above fees are inclusive of the provision of Globe*View and or Polaris
software, but client is responsible for the provision of a suitable PC,
printer and modem and all associated line charges.
4. Above pricing excludes out-of-pocket (e.g. postage and insurance, transfer
agent fees).
5. Earnings Credits and Overdraft Charges with respect to Accounts containing
Property maintained within the United States:
For each month during which the Custodian holds Property for a
Customer, there shall be an adjustment to the custody fees noted above,
calculated as follows:
(a) the closing cash balances on the days of a month during which
Property is maintained in an Account ("Closing Cash Balance"), other than
those days on which the Closing Cash Balance is an overdraft position in
excess of $1,000,000 ("Excluded Days"), shall be aggregated and that sum shall
be divided by the number of days whose Closing Cash Balances are so added
("Average Monthly Balance"). If such Average Monthly Balance is more than
zero, the Average Monthly Balance will be multiplied by that number which is
the product of multiplying the Overnight Federal Funds Rate (defined below),
minus .50%, by a fraction, the denominator of which shall be 365 and the
numerator of which shall be the number of days (other than Excluded Days) on
which there is a Closing Cash Balance in that month. If such Average Monthly
Balance is less than zero, the Average Monthly Balance shall be multiplied by
that number which is the product of multiplying the Overnight Federal Funds
Rate (defined below), plus 1.00%, by a fraction, the denominator of which
shall be 365 and the numerator of which shall be the number of days (other
than Excluded Days) on which there is a Closing Cash Balance in that month. If
the Average Monthly Balance for a particular month is more than zero, the
amount calculated pursuant to this paragraph (a) shall be deducted from an
Account's custody fee for the relevant month. If the Average Monthly Balance
for a particular month is less than zero, the amount calculated shall be added
to such custody fee for such month.
(b) for an Excluded Day, the amount of the closing overdraft position
for such day shall be multiplied by the fraction, the numerator of which shall
be the Overnight Federal Funds Rate, plus 1.00% and the denominator of which
shall be 365. The amount so calculated will be added to the custody fee
payable by the Account for the relevant month.
(c) for purposes of paragraphs (a) and (b)above, the term "Overnight
Federal Funds Rate" shall mean, for any month, the average of daily Federal
funds rates for a given month; in turn, the daily Federal funds rate shall
mean, for any day, the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged by
Federal funds brokers on such day, as published by the Federal Reserve Bank of
New York on the business day next succeeding such day.
6. Earnings Credits earned in a calendar year are valid for only that year and
the immediately succeeding calendar quarter. Any accumulation not used up by
the end of the 1st quarter of the immediately following year will be
forfeited.
7. Earnings Credit and Overdraft Rates with respect to Accounts containing
Property maintained in foreign markets, where applicable, will vary by market.
As part of the monthly reporting package, the Custodian provides a Statement
of Earnings that details by currency account the daily balance maintained and
the interest or debit rate earned on that particular day. The net negative (or
positive) interest is accrued and reflected at the bottom the statement; this
amount is credited on the third business day following the month end.
8. A manual transaction is an instruction, which is sent to Bankers Trust
outside of Globe*View, Polaris or CPU transmissions, i.e. facsimile.
9. Transactional fees will be incurred in the Master Repo account. Account
maintenance and asset fees will be waived for the Master Repo Account.
10. New pricing is effective June 1, 1996 and will not be modified before
June 1, 1999.
11. Fees for FX trades executed with BTCo. will be waived. Third party FX fees
are $50.00 per transaction.
12. Fees are billed monthly.
13. "DTC-Automated" shall mean those trades which are settled automatically at
DTC or through Polaris or another sucessor electronic system without manual
intervention of an employee of the Custodian; and "DTC-Manual" shall mean
those trades which are settled through Polaris or another sucessor electronic
system with the manual intervention of an employee of the Custodian.
DELAWARE GROUP OF FUNDS,
on behalf of each Customer and Portfolio
listed on Exhibit A to the Custodian Agreement BANKERS TRUST COMPANY
ACCEPTED BY: PREPARED BY:
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President/Chief Administrative Title: Managing Director
Officer/Chief Financial Officer (DATE) June 1, 1996
(DATE) June 1, 1996
Except as set forth above, this Exhibit C shall be amended upon delivery by
the Custodian of a new Exhibit C to the Customer and acceptance thereof by the
Customer and shall be effective as of the date of acceptance by the Customer
or a date agreed upon between the Custodian and the Customer.
EXHIBIT D
To Custodian Agreement dated as of June 1, 1996 between Bankers Trust
Company and Delaware Group of Funds.
TAX RECLAIMS
Pursuant to Section 18 of the above referred to Custodian Agreement,
the Custodian shall perform the following services with respect to withholding
taxes imposed or which may be imposed on income from Property in the Account.
Defined terms shall, unless otherwise noted, have the meanings ascribed to
them in the above referenced Custodian Agreement.
(a) When withholding tax has been deducted with respect to income
from any Property in an Account, the Custodian will post the tax reclaim in
the relevant currency to the Account on the earlier of the date of receipt of
the tax reclaim payment or the Contractual Reclaim Posting Date (as defined in
the columnar heading below) in accordance with the following schedule (subject
to the provisions of paragraphs (b) and (c) below):
Market Contractual Reclaim Posting Date
------ --------------------------------
(unless otherwise noted in paragraph (b),
the number of days subsequent to the
receipt by Custodian of the
dividend/interest payment from which tax
has been withheld)
Austria 000
Xxxxxxx 270
Denmark 100
France 270
Germany 000
Xxxxx 90
Spain 260
Switzerland 250
UK 100
This service shall be provided by the Custodian with regard to other countries
in which Customer may invest as the Custodian and Customer shall mutually
agree. In the event of a change in tax laws, regulations, or treaties, or the
re-interpretation by a relevant governmental authority of any of the
foregoing, which change causes a material modification to the tax reclaim
process in such market, the Custodian and the Customer shall enter into good
faith negotiations to modify this Exhibit D as appropriate.
(b) In instances where a tax reclaim payment has not been received
and the Custodian's obligation is therefore to post a reclaim on a particular
Contractual Reclaim Posting Date, that obligation is conditioned upon the
Custodian's receipt from the Customer of all necessary documentation completed
accurately as to all material terms within a reasonable time prior to such
Contractual Reclaim Posting Date. If a Customer fails to so deliver the
necessary documentation to Custodian within such time, the day from which the
Contractual Reclaim Posting Date is measured shall be the date on which such
documentation is supplied to Custodian, not the date on which the
dividend/interest payment from which the tax is withheld is paid to Custodian.
The two previous sentences notwithstanding, if Customer's failure to deliver
such documentation within such time results from Custodian's failure to: (i)
notify Customer of any deadlines for delivery of documentation; (ii) deliver
all necessary documentation to Customer within a reasonable time prior to the
date on which the completed documentation must be delivered to Custodian or
(iii) promptly notify Customer of any deficiency in the required documentation
provided to Custodian, the Contractual Reclaim Posting Date shall be measured
from the date the Custodian receives the dividend/interest payment from which
the tax has been withheld.
(c) The Custodian shall not be obligated to post tax reclaims with
regard to a particular country, if (i) the government of such country ceases
to honor tax reclaims generally or (ii) imposes regulatory changes, delays or
currency restrictions which materially adversely affect or preclude the
payment of tax reclaims or (iii) the tax authority in such country from which
a reclaim is being sought declares a claim to be invalid or after appropriate
and timely inquiry by the Custodian, otherwise fails to confirm the validity
of a claim within a reasonable period of time. If the tax reclaim has been
posted previously to the Account, the Custodian shall have the right following
advance notice to the Customer to reverse any such credits (provided that with
respect to the events referred to in clause (ii) above, the Custodian's right
to reverse such credits shall be subject to approval by the Customer, which
approval shall not unreasonably be withheld); and the Customer, exclusively
out of the Property held in such Account, agrees to hold the Custodian
harmless from Custodian's actual losses, damages, costs and expenses
(including the reasonable fees and expenses of counsel) arising therefrom,
except that in no event shall Customer be liable for consequential or special
damages of the Custodian. If, notwithstanding the circumstances described in
this paragraph (c), Custodian actually receives a tax reclaim payment,
Custodian shall promptly post such tax reclaim in the relevant currency to the
Account.
(d) The Custodian will provide fully detailed advices/vouchers to
support reclaims submitted to the local authorities by the Custodian or its
designee. In all cases of withholding, the Custodian will provide full details
to the Customer. If exemption from withholding at the source can be obtained
in the future, the Custodian will notify the Customer and advise what
documentation, if any, is required to obtain the exemption. Upon receipt of
such documentation from the Customer, the Custodian will file for exemption on
the Customer's behalf and notify the Customer when it has been obtained.
(e) In connection with providing the foregoing service, the Custodian
shall be entitled to apply categorical treatment of the Customer according to
the Customer's nationality, the particulars of its organization and other
relevant details that shall be supplied by the Customer. It shall be the duty
of the Customer to inform the Custodian of any change in the organization,
domicile or other material fact previously communicated to Custodian in
writing concerning tax treatment of the Customer and further to inform the
Custodian if the Customer is or becomes the beneficiary of any special ruling
or treatment not applicable to the general nationality and category or entity
of which the Customer is a part under general laws and treaty provisions. The
Custodian may reasonably rely on any such information provided by the
Customer.
(f) In connection with providing the foregoing service, the Custodian
may, at its own expense, consult and reasonably rely on the advice of counsel
or other professional tax advisers in such jurisdictions. So long as the
Custodian shall have used reasonable care in selecting such advisers, the
Custodian is entitled to reasonably rely, and may act, on advice received from
counsel or other professional tax advisers and shall be without liability to
the Customer for any action reasonably taken or omitted pursuant to
information contained in such advice.
(g) Subject to the provisions set forth above, the Custodian shall
perform the services provided in this Exhibit D in accordance with the
standard of care described in Section 15 of the Custodian Agreement.
Dated as of: June 1, 1996 DELAWARE GROUP OF FUNDS,
on behalf of each Customer and Portfolio
listed on Exhibit A to the Custodian Agreement
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President/Chief Administrative
Officer/Chief Financial Officer
BANKERS TRUST COMPANY
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
