Exhibit 7(q)
[GRAPHIC OMITTED][GRAPHIC OMITTED]
GLOBAL CUSTODIAL SERVICES
AGREEMENT
JANUS INVESTMENT FUND
ON BEHALF OF
Janus Money Market Fund,
Janus Government Money Market Fund
&
Janus Tax-Exempt Money Market Fund
1
TABLE OF CONTENTS
1. DEFINITIONS...............................................................3
2. APPOINTMENT OF CUSTODIAN..................................................5
3. PROPERTY ACCEPTED.........................................................5
4. REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS..............................6
5. INSTRUCTIONS..............................................................7
6. PERFORMANCE BY THE CUSTODIAN..............................................7
7. REGISTRATION AND OTHER ACTION.............................................9
8. CUSTODY CASH ACCOUNT PAYMENTS.............................................9
9. ASSURED INCOME PAYMENT SERVICE...........................................10
10. WITHDRAWAL AND DELIVERY..................................................10
11. ACCESS AND RECORDS AND REPORTS...........................................11
12. USE OF AGENTS............................................................11
13. CITIGROUP ORGANIZATION INVOLVEMENT.......................................12
14. SCOPE OF RESPONSIBILITY..................................................13
15. LITIGATION; INDEMNITY....................................................14
16. LIEN AND SET-OFF.........................................................15
17. FEES AND EXPENSES........................................................16
18. TAX STATUS/WITHHOLDING TAXES.............................................16
19. TERMINATION..............................................................16
20. ASSIGNMENT...............................................................17
21. SEPARATE LIABILITY.......................................................17
22. DISCLOSURE...............................................................17
23. NOTICES..................................................................18
24. GOVERNING LAW AND JURISDICTION...........................................18
25. MISCELLANEOUS............................................................19
Schedule I - approved subcustodians
Schedule II - Fee schedule
2
THIS GLOBAL CUSTODIAL SERVICES AGREEMENT is made on the 15th day of March,
1999, by and between JANUS INVESTMENT FUND, a Delaware Business Trust, organized
under the laws of Delaware, acting on behalf of Janus Money Market Fund, Janus
Government Money Market Fund, and Janus Tax-Exempt Money Market Fund and/or as
agent on behalf of each of the funds, (each such fund being separately referred
to herein as the "Client"), having its principal place of business at 000
Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000 and CITIBANK, N.A., acting as a
custodian hereunder through its office located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 (the "Custodian").
WHEREAS, each Client is a separate series of the Trust representing shares of
beneficial interest in a separate portfolio of assets, and
WHEREAS, the Trust is registered as an open-end management investment company
under the Investment Company Act of 1940, as amended; and
WHEREAS, each Client desires to appoint Custodian as its custodian for the
custody of its assets owned by such Client; and
WHEREAS, Xxxxxxxxx is willing to accept such appointment on the terms and
conditions hereof.
NOW, THEREFORE, in consideration of the mutual promises contained herein, the
parties hereto, intending to be legally bound, mutually covenant and agree as
follows:
1. DEFINITIONS
"Agreement" means this Global Custodial Services Agreement, as amended
from time to time, and any other terms and conditions agreed upon by the Client
and the Custodian in writing from time to time in connection with this
Agreement.
"Assured Income Payment Service" means the Custodian's services in
which interest, dividends or other such periodic income, to which the Client is
entitled, on Securities specified by the Custodian from time to time at its
absolute discretion, are credited to the Custody Cash Account in respect of such
Securities.
"Assured Income Payment Standards" means the terms and conditions
governing the Assured Income Payment Service, as such terms and conditions are
amended and/or supplemented from time to time by, and at the absolute discretion
of, the Custodian.
"Assured Payment" means, in relation to those Securities specified by
the Custodian under the Assured Income Payment Service, an amount equal to the
interest, dividends or periodic income that is due to the Client in respect of
such Securities less any taxes, duties, levies, charges or any other withholding
payments payable in respect of such interest, dividends or periodic income.
"Assured Payment Date" means, in relation to the payment of any
interest, dividend or periodic income of any particular Securities specified by
the Custodian under the Assured Income Payment Service, the date on which such
interest, dividend or periodic income is normally payable in respect of such
Securities or such other date as may be notified by the Custodian to the Client
from time to time.
"Authorized Person" means (i) any person who has been authorized by the
Client, by notice in writing to the Custodian, to act on its behalf in the
performance of any act, discretion or duty under this Agreement, or (ii) any
other person holding a duly executed power of attorney from the Client which is
in a form acceptable to the Custodian (including, for avoidance of doubt, any
officer or employee of such agent or person).
3
"Branch" means any branch or office of Citibank, N.A.
"Citigroup Organization" means Citigroup and any company of which
Citigroup is, now or hereafter, directly or indirectly a shareholder or owner.
For the purposes of this Agreement, each Branch shall be deemed to be a separate
member of the Citigroup Organization.
"Clearance System" means The Federal Reserve Bank of New York, The
Depository Trust Company, Participants Trust Company, Cedel Bank, S.A., the
Euroclear System operated by Xxxxxx Guaranty Trust Company of New York, CEDEL
Bank, the CREST system operated by CREST CO. Limited, the Central Money Markets
Office, the Central Gilts Office and such other clearing agency, settlement
system or depository as may from time to time be used in connection with
transactions relating to Securities, and any nominee, clearing agency, or
depository for any of the foregoing.
"Client" shall mean each Fund individually and not jointly.
"Custody Account" means the custody account or accounts in the name of
the Client and/or such other name as the Client may reasonably designate, for
the deposit of any Property (other than cash) from time to time received by the
Custodian for the account of the Client.
"Custody Cash Account" means the cash account or accounts, which, at
the discretion of the Client, may be either a subaccount(s) of the Custody
Account or a demand deposit account(s), in the name of the Client and/or such
other name as the Client may reasonably designate (but not in the name of the
Custodian), for the deposit of cash in any currency received by the Custodian
from time to time for the account of the Client, whether by way of deposit or
arising out of or in connection with any Property in the Custody Account.
"Fee Agreement" means the agreement between the Custodian and the
Client setting forth the fees, costs and expenses to be paid by the Client to
the Custodian in connection with the custodial services provided pursuant to
this Agreement, as such fee agreement may be amended at the Custodian's
reasonable discretion from time to time by prior written notice to the Client.
"Instructions" means any and all instructions received by the Custodian
from, or reasonably believed by the Custodian in good faith to be from, any
Authorized Person, including any instructions communicated through any manual or
electronic medium or system agreed between the Client and the Custodian and on
such terms and conditions as the Custodian may specify from time to time.
"person" means any person, firm, company, corporation, government,
state or agency of a state, or any association or partnership (whether or not
having separate legal personality) of two or more of the foregoing.
"Property" means, as the context requires, all or any part of any
Securities, cash, or any other property from time to time held for the Client
under the terms of this Agreement.
"Rules" means any rules and regulations (whether of a local regulatory
authority, stock exchange or other entity) in any jurisdiction with which the
Custodian may from time to time be required to comply in the provision of its
services hereunder.
"Securities" means bonds, debentures, notes, stocks, shares, securities or other
financial assets acceptable to the Custodian and all moneys, rights or property
which may at any time accrue or be offered (whether by way of bonus, redemption,
preference, option or otherwise) in respect of any of the foregoing and any
certificates, receipts, warrants or other instruments (whether in registered or
unregistered form) representing rights to receive, purchase or subscribe for any
of the foregoing or evidencing or representing any other rights or interests
therein (including, without limitation, any of the foregoing not constituted,
evidenced or represented by a certificate or other document
4
but by an entry in the books or other permanent records of the issuer, a trustee
or other fiduciary thereof, a Clearance System or other person).
"Subcustodian" means a subcustodian (other than a Clearance System)
appointed by the Custodian for the safe-keeping, administration, clearance and
settlement of Securities.
"Taxes" means all taxes, levies, imposts, charges, assessments,
deductions, withholdings and related liabilities, including additions to tax,
penalties and interest imposed on or in respect of the Property, the
transactions effected under this Agreement or the Client; PROVIDED THAT Taxes
does not include income or franchise taxes imposed on or measured by the net
income of the Custodian or its agents.
2. APPOINTMENT OF CUSTODIAN
(A) The Client hereby appoints the Custodian to act as its custodian in
accordance with the terms hereof and authorizes the Custodian to establish on
its books, on the terms of this Agreement, the Custody Account, to be designated
to show that the Securities belong to the Client and are segregated from the
Custodian's assets and the Custody Cash Account.
(B) Subject to the express terms of this Agreement, the Client understands and
agrees that the obligations and duties hereunder of the Custodian shall be
performed only by the Custodian or its agents, and shall not be deemed
obligations or duties of any other member of the Citigroup Organization. The
Client agrees that the Custodian may register or record legal title to any
Securities in the name of a nominee company or a Subcustodian in the Citigroup
Organization and may appoint a member of the Citigroup Organization to be a
Subcustodian.
(C) The Client agrees to take any such action which may be necessary and to
execute further documents and provide such materials and information as may be
reasonably requested by the Custodian to enable the Custodian to perform the
duties and obligations under this Agreement, including participation in any
relevant Clearance System, and will notify the Custodian as soon as it becomes
aware of any inaccuracy in such materials or information.
(D) All custody services by the Custodian hereunder shall be provided in
accordance with the operating procedures, a copy of which the Custodian may
supply to the Client from time to time. In the event of any conflict between any
term of this Agreement and any Operating Procedure, this Agreement shall prevail
with respect to such term.
(E) The Client agrees to comply with any relevant security procedures relating
to the provision of custody services under this Agreement which may be specified
by the Custodian or imposed on the Client by any relevant Clearance System.
3. PROPERTY ACCEPTED
(A) Subject to Section 3(C) below, the Custodian agrees to accept for custody in
the Custody Account any Securities which are capable of deposit under the terms
of this Agreement.
(B) Subject to Section 3(C) below, the Custodian agrees to accept for deposit in
the Custody Cash Account, cash in any currency (which shall, if necessary, be
credited by the Custodian to different accounts in the currencies concerned),
such cash to be owed to the Client by the Custodian as banker.
(C) The Custodian may in its reasonable discretion refuse to accept (in whole or
in part) any proposed deposit in either the Custody Account or the Custody Cash
Account if the Custodian reasonably believes that the acceptance of such deposit
would violate any law, rule, regulation, practice or policy to which the
Custodian is subject.
5
4. REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
(A) The Client hereby represents, warrants and undertakes to the Custodian that:
(i) it is duly organized and validly existing under the laws of
the jurisdiction of its organization;
(ii) during the term of this Agreement it (and any person on whose
behalf it may act as agent or otherwise in a representative
capacity) has and will continue to have, or will take all
action necessary to obtain, full capacity and authority to
enter into this Agreement and to carry out the transactions
contemplated herein, and has taken and will continue to take
all action (including, without limitation, the obtaining of
all necessary governmental consents in any applicable
jurisdiction) to authorize the execution, delivery and
performance of obligations of the Client, and the validity and
enforceability of such obligations and the rights of the
Custodian, under this Agreement;
(iii) it will not assert any interest in Property held by the
Custodian in any Clearance System in any way which could
prevent a transfer of title to a unit of such Property by the
Custodian (or by any other person) where such transfer is
required by the Clearance System;
(iv) this Agreement is legal, valid and binding on the Client;
(v) on or prior to the execution of this Agreement, the Client has
provided to the Custodian certified true copies of evidence of
the due authorization for the execution, delivery and
performance of this Agreement;
(vi) except as provided in Clause 16 of this Agreement, all
Property deposited with the Custodian shall, at all times, be
free from all charges, mortgages, pledges or other such
encumbrances; and
(vii) the Client shall, at all times, be entitled or otherwise duly
authorized to deal with, and dispose of, all or any part of
the Property, whether through a relevant Clearance System or
otherwise.
The Client agrees to inform the Custodian promptly if any
statement set forth in this Section 4(A) ceases to be true and correct as of any
date after the date hereof.
(B) The Custodian hereby represents, warrants and undertakes to the Client that:
(i) it is duly organized and validly existing under the laws of
the jurisdiction of its organization;
(ii) during the term of this Agreement it has and will continue to
have, or will take all action necessary to obtain, full
capacity and authority to enter into this Agreement and to
carry out the transactions contemplated herein, and has taken
and will continue to take all action (including, without
limitation, the obtaining of all necessary governmental
consents in any applicable jurisdiction) to authorize the
execution, delivery and performance of this Agreement; and
(iii) this Agreement is legal, valid and binding on the Custodian;
and
(iv) The Custodian is a bank that meets the qualifications
prescribed in Section 26(a)(1) of the Investment Company Act
of 1940.
The Custodian agrees to inform the Client promptly if any
statement set forth in this Section 4(B) ceases to be true and correct as of any
date after the date hereof.
6
5. INSTRUCTIONS
(A) The Custodian may, in its absolute discretion and without liability on its
part, rely and act upon (and the Client shall be bound by) any Instructions.
Instructions shall continue in full force and effect until canceled or
superseded; PROVIDED THAT any Instruction canceling or superseding a prior
Instruction must be received by the Custodian at a time and in a manner that
accords the Custodian a reasonable opportunity to act upon such Instruction. The
Custodian shall be entitled to rely upon the continued authority of any
Authorized Person to give Instructions until the Custodian receives notice from
the Client to the contrary.
(B) Instructions shall be governed by and carried out subject to the prevailing
laws, rules, operating procedures and market practice of any relevant stock
exchange, Clearance System or market where or through which they are to be
executed or carried out, and shall be acted upon only during banking hours
(including applicable cut-off times) and on banking days when the applicable
financial markets are open for business.
(C) Instructions delivered to the Custodian by telephone or facsimile shall be
promptly confirmed in writing, by tested telex, SWIFT, letter, the Custodian's
proprietary electronic banking system or as provided in the Service Standards,
such confirmation shall, where relevant, be made by an Authorized Person.
However, the Custodian may, in its absolute discretion, rely and act upon
telephone or facsimile Instructions before the written confirmation is received.
(D) The Custodian has offered the Client security procedures for the
transmission of Instructions to the Custodian (and the Client acknowledges that
it has received the same and agrees that the security procedures mutually agreed
to by the Client and the Custodian are commercially reasonable). As long as the
Custodian acts in compliance with such security procedures and this Section 5,
it shall have no further duty to verify the identity or authority of the person
giving or confirming, or the genuineness or contents of, any Instruction.
(E) The Custodian is authorized to rely upon any Instructions received by any
means, provided that the Custodian and the Client have agreed upon the means of
transmission and the method of identification for such Instructions.
(F) Instructions are to be given in the English language. The Custodian may in
its reasonable discretion and without any liability on its part, act upon what
it reasonably believes in good faith such Instructions to be; notwithstanding
any other provision hereof, the Custodian shall have the right, in its
reasonable discretion to refuse to execute any such Instruction, in which event
the Custodian shall notify the Client of such refusal without undue delay.
(G) The Client agrees to be bound by any Instructions, whether or not
authorized, given to the Custodian in the Client's name and accepted by the
Custodian in accordance with the provisions of this Section 5.
6. PERFORMANCE BY THE CUSTODIAN
(A) Custodial duties not requiring further Instructions. In the absence of
contrary Instructions, the Custodian is authorized by the Client to, and where
applicable, the Custodian shall, carry out the following actions in relation to
the Property:
(i) separately identify the Property on its records as being held
for the account of the Client and to the extent permitted by
applicable law or through rules and procedures of any
Clearance System, segregate all Property held on behalf of the
Client by the Custodian from the assets of the Custodian;
(ii) sign any affidavits, certificates of ownership or other
certificates relating to the Property which
7
may be required by any tax or regulatory authority or under
the laws of any relevant jurisdiction, whether governmental
or otherwise, and whether relating to ownership, or income,
capital gains or other tax, duty or levy (and the Client
further agrees to ratify and to confirm or to do, or to
procure the doing of, such things as may be necessary or
appropriate to complete or evidence the Custodian's actions
under this Section 6(A)(ii) or otherwise under the terms of
this Agreement);
(iii) collect and receive, for the account of the Client, all
income, payments and distributions in respect of the Property,
and credit the same to the Custody Cash Account;
(iv) take any action which is necessary and proper in connection
with the receipt of income, payments and distributions as are
referred to in Section 6(A)(iii) above, including, without
limitation, the presentation of coupons and other interest
items;
(v) collect, receive and hold for the account of the Client any
capital arising out of or in connection with the Property
whether as a result of it being called or redeemed or
otherwise becoming payable and credit the same to the Custody
Cash Account;
(vi) take any action which is necessary and proper in connection
with the receipt of any capital as is referred to in Section
6(A)(v) above, including, without limitation, the presentation
for payment of any Property which becomes payable as a result
of its being called or redeemed or otherwise becoming payable
and the endorsement for collection of checks, drafts and other
negotiable instruments;
(vii) take any action which is necessary and proper to enable the
Custodian to provide services to the Client within, and to
observe and perform its obligations in respect of, any
relevant Clearance System;
(viii) receive and hold for the account of the Client all Securities
received by the Custodian as a result of a stock dividend,
share sub-division or reorganization, capitalization of
reserves or otherwise including taking any action required in
regard to any non discretion or right in connection with the
Property;
(ix) exchange interim or temporary receipts for definitive
certificates, and old or overstamped certificates for new
certificates and hold such definitive and/or new certificates
in the Custody Account;
(x) make cash disbursements for any expenses incurred in handling
the Property and for similar items in connection with the
Custodian's duties under this Agreement in accordance with the
Fee Agreement, and debit the same to the Custody Cash Account;
and
(xi) deliver to the Client transaction advices and/or regular
statements of account showing the Property held at such
intervals as may be agreed between the parties hereto but
subject always to applicable Rules.
(B) Custodial duties requiring Instructions. The Custodian is authorized by the
Client to, and where applicable, the Custodian shall, carry out the following
actions in relation to the Property only upon receipt of and in accordance with
specific Instructions:
(i) make payment for and receive Property, or deliver or dispose
of Property;
(ii) (subject to Section 7(D)) deal with subscription, rights,
bonus or scrip issues, conversions,
8
options, warrants and other similar interests or any other
discretionary right in connection with the Property; and
(iii) subject to the agreement of the Custodian, to carry out
any action other than those mentioned in Section 6(A) above.
7. REGISTRATION AND OTHER ACTION
(A) The Client understands and agrees that, except as may be specified in any
operating procedures, Property shall be registered as the Custodian may direct
either in the name of the Custodian, Subcustodian or Clearance System, or
nominee of any of them, in the jurisdiction where the Property is required to be
registered or otherwise held. Where feasible, the Custodian will arrange for the
registration of Property, consistent of certificated securities held by the
Custodian, with the issuer or its agent in the name of the Client or its
nominee. The Client understands and agrees, however, that the Custodian shall
have discretion to determine whether such direct registration is feasible.
(B) The Custodian shall, to the extent reasonably possible, notify, make
available or deliver to the Client, in a timely manner, all official notices,
circulars, reports and announcements that are received by the Custodian in such
capacity concerning the Securities held on the Client's behalf that require
discretionary action.
(C) The Custodian shall provide proxy services to the Client only where there is
a separate agreement in relation to proxy services between the Custodian and the
Client; provided, however, the Custodian shall deliver to the Client any proxy
received from an issuer, which shall be signed by the Custodian.
(D) Upon receipt of each transaction advice and/or statement of account, the
Client shall examine the same and notify the Custodian within thirty (30) days
of the date of any such advice or statement of any discrepancy between
Instructions given and the situation shown in the transaction advice and/or
statement, and/or of any other errors therein. In the event that the Client does
not inform the Custodian in writing of any exceptions or objections within
thirty (30) days after the date of such transaction advice and/or statement, the
Client shall be deemed to have approved such transaction advice and/or
statement.
8. CUSTODY CASH ACCOUNT PAYMENTS
(A) Except as otherwise provided herein, the Custodian shall make, or cause its
agents to make, payments of cash credited to the Custody Cash Account:
(i) in connection with the purchase of Property (other than
cash) for the account of the Client in accordance with
Instructions;
(ii) in payment for the account of the Client of (A) all Taxes,
claims, liabilities, fees, costs and expenses incurred by the
Custodian or its agents under or in connection with the terms
of this Agreement, and (B) all amounts owed to the Custodian
pursuant to the Fee Agreement;
(iii) for payments to be made in connection with the conversion,
exchange or surrender of Property held in the Custody Account;
(iv) pursuant to Assured Payment obligations incurred in the
capacity of settlement bank on behalf of the Client within a
relevant Clearance System;
(v) for other purposes as may be specified by the Client in its
Instructions; or
9
(vi) upon the termination of this Agreement on the terms hereof;
PROVIDED THAT, unless otherwise agreed, the payments referred to above shall not
exceed the funds available in the Custody Cash Account at any time. The Client
shall promptly reimburse the Custodian for any advance of cash or any such
taxes, charges, expenses, assessments, claims or liabilities upon request for
payment. Notwithstanding the foregoing, nothing in this Agreement shall obligate
the Custodian to extend credit, grant financial accommodation or otherwise
advance moneys to the Client or assume financial risk on behalf of the Client
for the purpose of meeting any such payments or otherwise carrying out any
Instructions.
(B) Unless otherwise provided herein, the proceeds from the sale or exchange of
Property will be credited to the Custody Cash Account on the date the proceeds
are actually received by the Custodian.
9. ASSURED INCOME PAYMENT SERVICE
(A) The Custodian may, at its absolute discretion, offer the Client an Assured
Income Payment Service in respect of specific Securities, as may be notified by
the Custodian to the Client from time to time. In relation to any such
Securities, the Custodian may, at its absolute discretion, cause the Custody
Cash Account to be credited with an Assured Payment on the Assured Payment Date
relevant thereto; PROVIDED THAT the Custodian shall be entitled to reverse any
credit (in whole or in part) made in respect of that Assured Payment if the
Custodian fails to receive the full amount corresponding to such Assured Payment
within a reasonable time, as determined by the Custodian in its absolute
discretion, after the relevant Assured Payment Date, for any reason whatsoever
other than as a result of the negligence or willful default of the Custodian.
The Assured Income Payment Service shall be provided by the Custodian
in accordance with the Assured Income Payment Standards.
(B) Where the Custodian acts as a settlement bank in any relevant Clearance
System:
(i) upon the Custodian incurring any assured payment obligation,
the Client shall reimburse the Custodian for such amount, and
the Custodian may debit the Custody Cash Account with such
amount;
(ii) the Custodian may without notice set, revise or disable debit
caps in respect of the maximum aggregate amount of assured
payment obligations it will incur on behalf of the Client; and
(iii) if another settlement bank in such Clearance System defaults
on an assured payment obligation owed to the Custodian wholly
or partially, the Custodian has no liability to make good the
loss and will, where appropriate, attribute the loss pro rata
between all Clients on whose behalf such payment should have
been received by the Custodian.
10. WITHDRAWAL AND DELIVERY
Subject to the terms of this Agreement, the Client may at any time
demand withdrawal of all or any part of the Property in the Custody Account
and/or the Custody Cash Account. Delivery of any Property will be made without
undue delay at the expense of the Client at such location as the parties hereto
may agree; PROVIDED THAT if the Custodian has effected any transaction on behalf
of the Client the settlement of which is likely to occur after a withdrawal
pursuant to this Section 10, then the Custodian shall be entitled in its
absolute discretion to close out or complete such transaction and to retain
sufficient funds from the Property for that purpose.
10
11. ACCESS AND RECORDS AND REPORTS
(A) Access to the Custodian's Records. Except as otherwise provided in this
Agreement, during the Custodian's regular business hours and upon receipt of
reasonable notice from the Client, any officer or employee of the Client, any
independent public accountant(s) selected by the Client and any person
designated by any regulatory authority having jurisdiction over the Client shall
be entitled to examine on the Custodian's premises Property held by the
Custodian and the Custodian's records regarding Property deposited with entities
authorized to hold Property in accordance with Section 12 hereof and Custodian
shall cooperate in responding to inquiries from such persons, but only upon the
Client's furnishing the Custodian with Instructions to that effect; PROVIDED
THAT such examination shall be consistent with the Custodian's obligations of
confidentiality to other parties. The Custodian's reasonable costs and expenses
in facilitating such examinations, including but not limited to the cost to the
Custodian of providing personnel in connection with examinations, shall be borne
by the Client.
(B) Access to Third Party Records. The Custodian shall also, subject to
restrictions under applicable laws and regulations, seek to obtain from any
entity with which the Custodian maintains the physical possession or book-entry
record of any of the Property in the Custody Account or the Custody Cash Account
such records as may be required by the Client or its agents.
(C) Custodian will provide such reports to Client as Client may reasonably
request. In particular, the Custodian shall maintain such records relating to
its activities under this Agreement as are required to be maintained by Rule
31a-1 under the Investment Company Act of 1940 and to preserve them for the
periods prescribed in Rule 31a-2 under the Act. Furthermore, the Custodian shall
provide accountings relating to its activities under this Agreement as shall be
agreed upon by the Client and the Custodian.
(D) Opinion of the Client's Independent Certified Public Accountants. The
Custodian shall take all reasonable action as the Client may request to obtain
from year to year favorable opinions from the Client's independent certified
accountants with respect to the Custodian's activities hereunder and in
connection with the preparation of each such Client's periodic reports to the
SEC and with respect to any other requirements of the SEC.
12. USE OF AGENTS
(A) The Custodian is authorized subject to any relevant Rules, to appoint agents
(each an "agent", which term includes, without limitation, service providers and
Subcustodians that are qualified to act as Custodian under the Investment
Company Act of 1940, but not Clearance Systems, and which agents may be a member
or members of the Citigroup Organization) and to participate in Clearance
Systems, whether in its own name or that of the Client, and whether by
participation as a member, sponsor or settlement bank within the Clearance
System, to perform any of the duties of the Custodian under this Agreement. The
Custodian may delegate to any such agent or Clearance System any of its
functions under this Agreement, including, without limitation, the collection of
any payment or payments, whether of an income or a capital nature, due on the
Property.
(B) In the selection and use of such agents and participation in such Clearance
Systems, the Custodian shall comply with any relevant Rules, and shall be
responsible only for the negligence in the selection of such agents and
Clearance Systems but shall otherwise have no responsibility for the performance
by such agents or Clearance System of any of the duties delegated to them under
this Agreement; notwithstanding the foregoing, the Custodian shall be
responsible for the negligence, fraud or willful default of any Subcustodian and
for any agent that is a Branch or subsidiary of Citibank, N.A., and shall have
the same level of responsibility to the Client for any nominee company
controlled by the Custodian or by any of the Custodian's affiliated companies as
the Custodian has for itself.
(C) Subject to any relevant Rules and regulations, the Property may be deposited
with any Subcustodian deemed appropriate by the Custodian or in any Clearance
System deemed appropriate by the Custodian or a
11
Subcustodian, as the case may be, provided any Subcustodian shall be qualified
to act as a Custodian under the Investment Company Act of 1940 and shall be
approved by the Client's Board of Trustees. Subcustodians approved by the Client
as of the date of this Agreement are specified on Schedule I, annexed hereto.
Property held in any Clearance System shall be subject to the rules or operating
procedures of such Clearance System, including rules regarding supervision or
termination of membership of such Clearance System, and such further information
provided by the Custodian to the Client, or acknowledgments or agreements which
may be required from the Client, for the purposes of this Section 12(C) in
connection with use of a Clearance System from time to time. The Custodian will
direct each Subcustodian and Clearance System to separately identify on its
books Securities held by it pursuant to this Agreement as being held for the
account of the Custodian's customers. The Custodian will direct each
Subcustodian and Clearance System to segregate any such Securities held by such
entity from the assets of the Custodian and such entity.
Upon receipt of appropriate Instruction, the Custodian shall, on behalf
of the Client, appoint one or more banks, trust companies or other entities
designated in such Instructions to act as a subcustodian for purposes of
effecting third party repurchase transactions with third parties through the use
of a common custodian or subcustodian, establishing a joint trading account with
any other person or effecting any other transaction designated by the Client in
the Instruction. Each such duly appointed subcustodian shall not be deemed to be
a Subcustodian as provided in this Agreement. In connection with the appointment
of such subcustodian, the Custodian shall enter in a subcustodian agreement with
the subcustodian in form and substance approved by the Client. The Custodian
shall not amend any such subcustodian agreement or agree to change or permit any
changes thereunder, or waive rights under such agreement, except upon prior
approval by the Client. Notwithstanding anything else in this agreement to the
contrary, the Custodian shall not be liable to the Client for any loss, damage
or expense suffered or incurred by the Client resulting from the actions or
omissions of such subcustodian unless such loss, damage or expense is caused by,
or results from, the act or omission of the Custodian in breach of this
Agreement; provided, however, that in the event of any such loss, damage or
expense the Custodian shall take all reasonable steps to enforce such rights as
it may have against the subcustodian to protect the interests of the Client.
The Client is hereby advised that, where the Custodian arranges for any
Property to be held overseas, there may be different settlement, legal and
regulatory requirements in overseas jurisdictions from those applying in the
United States, together with different practices for the separate identification
of the Client's Property.
(D) The Custodian shall provide services as a Foreign Custody Manager, as
defined in Rule 17f-5 under the Investment Company Act of 1940 or where there is
a separate Agreement between the Custodian and the Client.
13. CITIGROUP ORGANIZATION INVOLVEMENT
(A) To the extent permitted by applicable law, the Client hereby authorizes the
Custodian without the need for the Custodian to obtain the Client's prior
consent:
(i) when acting on Instructions to purchase and/or sell Property
(other than cash) from, to or through itself or any other
member of the Citigroup Organization and from and/or to any
other customer of the Custodian or any other member of the
Citigroup Organization; and
(ii) to obtain and keep, without being liable to account to the
Client, any commission payable by any third party or any other
member of the Citigroup Organization in connection with
dealings arising out of or in connection with the Custody
Account and/or the Custody Cash Account.
(B) The Client agrees and understands that if in accordance with Instructions,
an investment is made in any property, held, issued or managed by any member of
the Citigroup Organization, then such member of the Citigroup Organization may
retain a profit arising therefrom (in addition to the charges, commissions and
fees payable by the Client under this Agreement) without being liable to account
to the Client for such profit.
12
(C) The Client agrees and understands that (i) the Custodian and other members
of the Citigroup Organization may have banking or other business relationships
with issuers of Securities held in the Custody Account or Securities purchased
and sold for the Custody Account, and (ii) the Custodian shall not have any
obligations to the Client as a result of such relationships.
14. SCOPE OF RESPONSIBILITY
(A) Subject to the terms hereof, the Custodian shall use all reasonable care in
the performance of its duties under this Agreement and will exercise the due
care of a professional custodian for hire with respect to the Property in its
possession or control. The Custodian shall not be responsible for any loss or
damage suffered by the Client as a result of the Custodian performing such
duties unless the same results from an act of fraud, negligence or willful
default on the part of the Custodian or any Subcustodian, and as provided in
Section 12(B) hereof; in which event the liability of the Custodian in
connection with any Property shall not exceed the market value of the Property,
to which such loss or damage relates, at the time of such fraud, negligence or
willful default plus interest at the rate applicable to the base currency of the
Custody Cash Account accruing from the date of such fraud, negligence or willful
default until the date of discharge (together with reasonable attorneys' fees).
Notwithstanding the foregoing, in no event shall the Custodian be liable to the
Client for indirect, special or consequential damages, even if advised of the
possibility of such damages.
(B) The Custodian is not obliged to maintain any insurance on the Property held
under the terms of this Agreement.
(C) In the event that any law, regulation, decree, order, government act,
custom, procedure or practice to which the Custodian, or any Subcustodian or
Clearance System is subject, or to which the Property is subject, prevents or
limits the performance of the duties and obligations of the Custodian, or any
Subcustodian or Clearance System, then until such time as the Custodian,
Subcustodian or Clearance System is again able to perform such duties and
obligations hereunder, such duties and obligations of the Custodian,
Subcustodian or Clearance System shall be suspended.
(D) Neither the Custodian nor any member of the Citigroup Organization shall be
responsible for any loss or damage, or failure to comply or delay in complying
with any duty or obligation, under or pursuant to this Agreement arising as a
direct or indirect result of any reason, cause or contingency beyond its
reasonable control, including (without limitation) natural disasters,
nationalization, currency restrictions, act of war, act of terrorism, act of
God, postal or other strikes or industrial actions, or the failure, suspension
or disruption of any relevant stock exchange, Clearance System or market.
(E) Subject to Section 14(A) above, the Custodian shall not be liable for any
loss resulting from, or caused by, the collection of any Property and/or any
funds or other property paid or distributed in respect of the Property.
(F) The Custodian does not warrant or guarantee the authenticity or validity of
any Security or other Property received by the Custodian, or any other entity
authorized to hold Property under this Agreement. If the Custodian becomes aware
of any defect in title or forgery of any Property, the Custodian shall promptly
notify the Client.
(G) The Client shall be responsible for all filings, tax returns and reports on
any transactions undertaken pursuant to this Agreement, or in respect of the
Property or collections relating to the Property as may be requested by any
relevant authority, whether governmental or otherwise, and for the payment of
all unpaid calls, Taxes (including without limitation any value added tax),
imposts, levies or duties due on or with respect to any principal, interest or
other collections, or any other liability or payment arising out of or in
connection with the Property, and in so far as the Custodian is under any
obligation (whether of a governmental nature or otherwise) to pay the same on
behalf of the Client it may do so out of any Property held by the Custodian
pursuant to the terms of this Agreement.
13
(H) The Custodian is not acting under this Agreement as an investment manager,
nor as an investment, legal or tax adviser to the Client and the Custodian's
duty is solely to act as a custodian in accordance with the terms of this
Agreement.
(I) Nothing herein shall obligate the Custodian to perform any obligation or to
allow, take or omit taking any action which will breach any relevant Rules, or
any law, rule, regulation or practice of any relevant government, stock
exchange, Clearance System, self-regulatory organization or market.
(J) The Custodian may at any time suspend or terminate its participation and
holding of assets in a Clearance System, and will give reasonable notice to the
Client of any such action. In such case, or in the event of suspension as
contemplated in Section 14(C) above, the Custodian may arrange for the relevant
Securities to be held in certificated form.
(K) The Custodian shall not be responsible for the acts or omissions, default or
insolvency of any broker, counterparty, issuer of Securities or, except as
provided in Section 12(B), Subcustodian, agent or Clearance System.
(L) The Custodian is not responsible for the form, accuracy or content of any
notice, circular, report, announcement or other material received from a third
party (not covered under Section 14(A)) forwarded to the Client.
(M) The Custodian shall only have such duties and responsibilities as are
specifically set forth or referred to in this Agreement, and no covenant or
obligation shall be implied in this Agreement against the Custodian.
15. LITIGATION; INDEMNITY
(A) The Custodian or any of its agents, as the case may be, may (but without
being under any duty or obligation to) institute or defend legal proceedings, or
take any other action arising out of or in connection with the Property and the
Client shall indemnify the Custodian or agent against any costs and expenses,
including without limitation any reasonable attorneys' fees and disbursements,
arising from such proceedings or other action and make available to the
Custodian such security in respect of such costs and expenses as the Custodian
or agent in its absolute discretion deems necessary or appropriate, provided
that the Custodian shall not be entitled to be indemnified or reimbursed of
costs in connection with losses resulting from the Custodian's failure or
Subcustodian's failure to exercise the standard of care required by Section 14
(A) hereof.
(B) In the event the Custodian does not institute or defend legal proceedings,
or take any other action arising out of or in connection with the Property, the
Custodian hereby agrees that the Client shall, to the extent of any loss of the
Client's interest in the Property and to the extent permitted by applicable law
and not prohibited by contract, be subrogated to all of the rights of recovery
of the Custodian therefor against any third party person or entity; PROVIDED
THAT nothing herein shall be interpreted as granting the Client any rights to
bring any direct action under any insurance policy issued in favor of the
Custodian or as limiting the Custodian's right to bring any action against any
such third party for any damages suffered by the Custodian. Notwithstanding any
other provision hereof, in no event shall the Custodian be obliged to bring suit
in its own name or be obliged to allow suit to be brought in its name. Subject
to the terms of this Section 15(B) and to the extent permitted by law, the
Custodian shall execute and deliver any and all such instruments and documents
which the Client may reasonably request and take such other actions as
reasonably necessary or appropriate to assist the Client in the exercise of such
rights of recovery and to enable the Client to recover against any and all such
third party persons or entities. The Client shall reimburse the Custodian for
any reasonable out-of-pocket costs incurred in connection with the actions
contemplated by this Section 15(B).
(C) The Client agrees to indemnify the Custodian and to defend and hold the
Custodian harmless against all losses, liabilities, claims, expenses and Taxes,
including any reasonable legal fees and disbursements, (each referred
14
to as a "LOSS") arising directly or indirectly:
(i) from the fact that the Property is registered in the name of
or held by the Custodian or any nominee or agent of the
Custodian or any Clearance System;
(ii) without limiting the generality of Section 15(C)(i), from any
act which the Custodian or any nominee or agent performs or
permits (including the provision of any overdraft or other
financial accommodation which arises on the books of the
Custodian, whether on an advised or unadvised basis) in
relation to the Property pursuant to this Agreement or any
Instructions;
(iii) from the Custodian or any such nominee, agent or Clearance
System carrying out any Instructions pursuant to the terms of
this Agreement, including, without limitation, Instructions
transmitted orally, by telephone, telex, facsimile
transmission or any other means agreed by the Client and the
Custodian from time to time or otherwise;
(iv) from any reclaim or refund of Taxes effected by the Custodian
or any agent for the Client; and
(v) from the Custodian's reliance or action on any information
provided by the Client in connection with this Agreement;
PROVIDED THAT the Custodian shall not be indemnified against or held harmless
from any liability arising out of the Custodian's negligence, fraud or willful
default.
(D) The disclosure by the Client to the Custodian that the Client has entered
into this Agreement as the agent or representative of another person shall not
prevent the Custodian from being entitled to treat the Client as incurring all
obligations as principal under this Agreement.
(E) The Custodian shall give notice of any Loss in respect of which the Client
is obliged to provide indemnification pursuant to this Agreement. Such notice
shall describe the Loss in reasonable detail, and shall indicate the amount
(estimated, if necessary, and to the extent feasible) of the Loss that has been
or may be suffered by Custodian.
(F) The Custodian agrees to indemnify the Client and to defend and hold the
Client harmless to the extent of (i) the replacement of any Security or cash
lost from the Custody Account or the Custody Cash Account, respectively, (ii)
compensatory interest accrued for the time any cash in the Custody Cash Account
cannot be transferred as provided in this Agreement and (iii) reasonable legal
fees, incurred by the Client as a result of any failure by the Custodian or
Subcustodian to observe the standard of care specified in Section 14(A) of this
Agreement.
16. LIEN AND SET-OFF
(A) In addition to any remedies available to the Custodian under applicable law,
the Custodian shall have, and the Client hereby grants, a continuing general
lien on all Property (other than cash) until the satisfaction of all liabilities
(whether actual or contingent) of the Client to the Custodian, including any
fees and expenses or credit exposures incurred in the performance of services
under this Agreement. Notwithstanding anything to the contrary in this Agreement
and to the extent applicable, no liabilities or obligations the Client has
arising out of or constituting Purpose Credit shall be secured by, and the
Custodian shall have no lien upon, any Margin Stock, and any such lien or
security interest being hereby expressly disclaimed by the Custodian. "Purpose
Credit" and "Margin Stock", shall have the same meaning set forth in Regulation
U and X of the Board of Governors of the Federal Reserve System of the United
States of America.
15
(B) In addition to any other remedies available to the Custodian under
applicable law, the Custodian may, without prior notice to the Client, set off
any payment obligation owed to it by the Client against any payment obligation
(whether or not matured) owed by it to the Client regardless of the place of
payment or currency of either obligation (and for such purposes may make any
currency conversion necessary). If any obligation is unliquidated or
unascertained the Custodian may set off an amount estimated by it in good faith
to the amount of that obligation.
17. FEES AND EXPENSES
The Custodian agrees that it shall not look to the Client for
compensation for its services provided under this Agreement. The Custodian shall
be compensated entirely by Janus Capital Corporation, the Client's administrator
as determined in accordance with the terms of the Fee Agreement, attached hereto
as Schedule II, together with any applicable taxes or levies, including, without
limitation, all those items referred to in Section 8 (ii) hereof.
Notwithstanding anything else in this Agreement, the Client shall be liable for
any other obligation under this Agreement including without limitation, any
overdraft or advance and any indemnity specified herein.
18. TAX STATUS/WITHHOLDING TAXES
(A) The Client will provide the Custodian with information as to its tax status
as reasonably requested by the Custodian from time to time.
(B) The Client may be required from time to time to file such proof of taxpayer
status or residence, to execute such certificates and to make such
representations and warranties, or to provide any other information or documents
in respect of the Property, as the Custodian or any of its agents may deem
necessary or proper to fulfill the obligations of the Custodian or its agents
under applicable law. The Client shall provide the Custodian or its agents, as
appropriate, in a timely manner, with copies, or originals if necessary and
appropriate, of any such proofs of residence, taxpayer status or identity,
beneficial ownership of Property and any other information or documents which
the Custodian or its agents may reasonably request.
(C) If any Taxes shall become payable with respect to any payment due to the
Client, such Taxes may be withheld from such payment in accordance with
applicable law. The Custodian and any agents may withhold any interest, any
dividends or other distributions or securities receivable in respect of
Securities, proceeds from the sale or distribution of Securities ("Payments"),
or (after prior notice to the Client with a reasonable opportunity to respond)
may sell for the account of the Client any part thereof or all of the
Securities, and may apply such Payment and/or cash from the Custody Cash Account
in satisfaction of such Taxes, the Client remaining liable for any deficiency.
If any Taxes shall become payable with respect to any payment made to the Client
by the Custodian or its agents in a prior year, the Custodian or its agents may
withhold Payments in satisfaction of such prior year's Taxes.
(D) In the event the Client requests that the Custodian provide tax relief
services and the Custodian agrees to provide such services, the Custodian or any
of its agents, shall apply for appropriate tax relief (either by way of reduced
tax rates at the time of an income payment or retrospective tax reclaims in
certain markets as agreed from time to time); PROVIDED THAT the Client provides
to the Custodian such documentation and information as is necessary to secure
such tax relief. In no event shall the Custodian or any of its agents be
responsible for the difference between the statutory rate of withholding and the
treaty rate of withholding if the Custodian or any of its agents are unable to
secure tax relief.
19. TERMINATION
(A) The Custodian or the Client may terminate this Agreement by giving not less
than 60 days' prior written notice to the other party; PROVIDED THAT within 60
days of such notice, the Client shall provide the Custodian with Instructions
specifying the person to whom the Custodian shall deliver the Property in the
Custody Account
16
and Custody Cash Accounts; PROVIDED FURTHER THAT if the Custodian has effected
any transaction on behalf of the Client the settlement of which is likely to
extend beyond the expiration of such notice, then the Custodian shall be
entitled in its absolute discretion to close out or complete such transaction
and to retain sufficient funds from the Property for that purpose. If within 60
days following termination, the Client fails to give the Custodian Instructions
specifying the person to whom the Custodian shall deliver the Property in the
Custody Account and Custody Cash Account, the Custodian shall deliver the
Property to the Client at its address set out above.
(B) The rights and obligations contained in Sections 15, 16, 17 and 18 of
this Agreement shall survive the termination of this Agreement.
20. ASSIGNMENT
This Agreement shall bind and enure for the benefit of the parties
hereto and their respective successors and permitted assigns, and the Client
shall not assign, transfer or charge all or any rights or benefits hereunder
without the written consent of the Custodian. The Custodian may not assign,
transfer or charge all or any of its rights or benefits hereunder without the
written consent of the Client; PROVIDED HOWEVER that this Agreement may be
assigned by the Custodian to another member of the Citigroup Organization with
prior written notice to the Client, and such assignee shall, without the
execution or filing of any consents or other documents, succeed to and be
substituted for the Custodian with like effect as though such assignee had been
originally named as the Custodian hereunder. Any purported assignment, transfer
or charge made in contravention of this Section shall be null and void and of no
effect whatsoever.
21. SEPARATE LIABILITY
Each Fund that is a party to this Agreement, as set forth above, shall
be regarded for all purposes as a separate party apart from any other Fund which
is a party. Each Fund shall be responsible for only its own transactions and no
property of a Fund shall be commingled with the property of any other Fund. The
use of this single document to memorialize the separate agreement of each Fund
is understood to be for clerical convenience only and shall not constitute any
basis for joining the Funds for any respect.
22. DISCLOSURE
(A) The Client agrees and understands that the Custodian or its agents may
disclose information regarding the Custody Account and/or the Custody Cash
Account if required to do so (i) to establish under the laws of any relevant
jurisdiction the nominee (or similar) status of the Custodian or its agents with
respect to Property in the Custody Account and/or Custody Cash Account for the
purpose of performing or discharging its duties and obligations under this
Agreement, (ii) to enable auditors to perform auditing services, (iii) to make
the required tax certifications in the relevant jurisdictions, (iv) by any
applicable law, statute or regulation or court order or similar process in any
relevant jurisdiction, (v) by order of an authority having power over the
Custodian or its agents within the jurisdiction of such authority, whether of a
governmental nature or otherwise, or (vi) where required by the operating rules
of any relevant Clearance System.
(B) The Client hereby authorizes (i) the collection, storage and processing of
any information relating to the Client by the Custodian and the Branches,
subsidiaries, affiliates and agents of, or Clearance Systems used by, Citibank,
N.A.; and (ii) the transfer of any information relating to the Client to and
between the Branches, subsidiaries, affiliates and agents of, or Clearance
Systems used by, Citibank, N.A. and third parties selected by any of them,
wherever situated, for confidential use in connection with the provision of
services to the Client, and further acknowledges that any such Branch,
subsidiary, affiliate, agent, third party or Clearance System shall be entitled
to transfer any such information as required by any law, court, legal process or
as requested by any authority in accordance with which it is required to act, as
it shall reasonably determine.
17
(C) The Client agrees that the terms of this Agreement shall be kept strictly
confidential and no printed materials or other matter in any language (including
without limitation, prospectuses, statements of additional information, notices
to shareholders, annual reports and promotional materials) which mention
Citigroup, Citibank, N.A. or the Custodian's name, or the rights, powers or
duties of the Custodian, shall be issued by the Client or on the Client's behalf
unless Citibank, N.A. and/or the Custodian (as applicable) shall first have
given its specific written consent thereto; PROVIDED THAT no prior consent shall
be required if the only reference to the Custodian's name is in identifying the
Custodian as one of the Client's custodians.
(D) The Client agrees that the Custodian or its agents may, upon reasonable
request, review the Client's premises, and security controls and procedures,
where necessary for the performance of the Custodian's obligations regarding any
relevant Clearance System.
23. NOTICES
All notices and communications to be given by one party to the other
under this Agreement shall be in writing in the English language and (except for
notices, reports and information from the Custodian, and Instructions given by
electronic means) shall be made either by telex or facsimile, other electronic
means agreed to by the parties or by letter addressed to the party concerned at
the addresses set out above (or at such other addresses as may be notified in
writing by either party to the other from time to time). Any such notice or
communication hereunder shall be effective upon actual receipt.
24. GOVERNING LAW AND JURISDICTION
(A) This Agreement shall be governed by and construed in accordance with the
internal laws (and not the laws of conflict) of the state of New York. The
Client agrees for the benefit of the Custodian and, without prejudice to the
right of the Custodian to take any proceedings in relation hereto before any
other court of competent jurisdiction, that the courts of the State of New York
shall have jurisdiction to hear and determine any suit, action or proceeding,
and to settle any disputes, which may arise out of or in connection with this
Agreement and, for such purposes, irrevocably submits to the non-exclusive
jurisdiction of such courts.
(B) Each party hereto waives any objection it may have at any time to the laying
of venue of any actions or proceedings brought in a court of the State of New
York, waives any claim that such actions or proceedings have been brought in an
inconvenient forum and further waives the right to object that such court does
not have jurisdiction over such party.
(C) The Client irrevocably waives, to the fullest extent permitted by applicable
law, with respect to itself and its revenues and assets (irrespective of their
use or intended use), all immunity on the grounds of sovereignty or similar
grounds from (i) suit, (ii) jurisdiction of any court, (iii) relief by way of
injunction, order for specific performance or for recovery of property, (iv)
attachment of its assets (whether before or after judgment), and (v) execution
or enforcement of any judgment to which it or its revenues or assets might
otherwise be entitled in any actions or proceedings in such courts, and
irrevocably agrees, to the fullest extent permitted by applicable law, that it
will not claim such immunity in any such actions or proceedings.
(D) The Client hereby understands and agrees that the opening of, the holding of
all or any part of the Property in, and the delivery of any Securities and other
Property to or from, the Custody Account and Custody Cash Account and the
performance of any activities contemplated in this Agreement by the Custodian,
including acting on any Instructions, are subject to the relevant local laws,
regulations, decrees, orders, government acts, customs, procedures and practices
(i) to which the Custodian, or any Subcustodian or Clearance System, is subject
and (ii) as exist in the country in which the Property is held.
18
25. MISCELLANEOUS
(A) This Agreement shall not be amended except by a written agreement and any
purported amendment made in contravention of this Section shall be null and void
and of no effect whatsoever.
(B) This Agreement shall constitute the entire agreement between the Client and
the Custodian and, unless otherwise expressly agreed in writing, shall supersede
all prior agreements relating to global custodial services, written or oral,
between the parties hereto.
(C) The parties hereto agree that (i) the rights, powers, privileges and
remedies stated in this Agreement are cumulative and not exclusive of any
rights, powers, privileges and remedies provided by law, unless specifically
waived, and (ii) any failure or delay in exercising any right power, privilege
or remedy will not be deemed to constitute a waiver thereof and a single or
partial exercise of any right, power, privilege or remedy will not preclude any
subsequent or further exercise of that or any other right, power, privilege or
remedy.
(D) In the event that any provision of this Agreement, or the application
thereof to any person or circumstances, shall be determined by a court of proper
jurisdiction to be invalid or unenforceable to any extent, the remaining
provisions of this Agreement, and the application of such provisions to persons
or circumstances other than those as to which it is held invalid or
unenforceable, shall be unaffected thereby and such provisions shall be valid
and enforced to the fullest extent permitted by law in such jurisdiction.
(E) Titles to Sections of this Agreement are included for convenience of
reference only and shall be disregarded in construing the language contained in
this Agreement.
(F) This Agreement may be executed in several counterparts, each of which shall
be an original, but all of which together shall constitute one and the same
agreement.
(G) All the parties hereto acknowledge and agree that all liabilities of Janus
Investment Fund arising, directly or indirectly, under this Agreement, of any
and every nature whatsoever, shall be satisfied solely out of the assets of
Janus Investment Fund and that no Trustee, officer or holder of shares of
beneficial interest of Janus Investment Fund shall be personally liable for any
of the foregoing liabilities. Janus Investment Fund's Declaration of Trust, as
amended from time to time, is on file in the Office of the Secretary of State of
the Commonwealth of Massachusetts. Such Declaration of Trust describes in detail
the respective responsibilities and limitations of liability of the Trustees,
officers and holders of shares of beneficial interest of Janus Investment Fund.
19
(H) Additional Funds. In the event that Janus Investment Fund establishes one or
more series of shares in addition to Funds named herein with respect to which it
desires to have the Custodian render services as custodian under the terms
hereof, it shall so notify the Custodian in writing, and it the Custodian agrees
in writing to provide such services, such series of shares shall become a Fund
hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized.
CITIBANK, N.A., New York Office JANUS INVESTMENT FUND
By: /s/ Xxxxxx X. Xxxxxxx By /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxxxxxx
Title: Vice President Title: Vice President
JANUS CAPITAL CORPORATION, as
principal with regard to
obligations for fees and expenses
as provided in Section 17.
By: /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
20
Schedule I
JANUS CAPITAL CORPORATION
Approved Subcustodians
None
21
Schedule II
Citibank, N.A.
Custody Fee Schedule
for
JANUS CAPITAL CORPORATION
I. HOLDINGS (Annual Holding Fee)
o Depository Assets (DTC, FED, PTC)..............................0.18 bp
o Money Market Physical..........................................0.30 bp
o Other Physical (e.g., private placements)......................0.30 bp
o Euroclear/Cedel................................................1.50 bp
II. TRANSACTIONS
A transaction is defined as a purchase, sale, maturity, free receive or
free delivery.
Automated Manual
Entry Entry
o FBE, DTC Transactions...................$5.00...................$10.00
(Including DTC Commercial Paper)
o PTC Transaction.........................$8.00...................$13.00
o Physical Transactions...................$15.00..................$20.00
o (Including Physical Commercial Paper)
Euroclear Transactions..............$25.00..................$30.00
o P&I Paydowns........................... $1.00
(MBS Agency, CMO, Asset Backed, REMIC, Private Placement)
III. CITIBANKING (On-line Communication)
o Annual Maintenance Charge (Per Location).....................$1,200.00
IV. ADDITIONAL SERVICES
o Corporate Action Notification.................................Included
o Income Servicing..............................................Included
o Account/Asset Statements......................................Included
o Non-Standard Contract Counsel.................................Included
V. ADMINISTRATION
o Monthly Account Maintenance.....................................Waived
22
VI. MINIMUM ANNUAL SERVICE FEE......................................$120.00
Out of pocket expenses to include overnight express mail, transfer
agent fees etc. will be passed along at cost.
AGREED:
CITIBANK, N.A. JANUS CAPITAL CORPORATION
Name: /s/ Xxxxxx X. Xxxxxxx Name: /s/ Xxxxx X. Xxxxxxxx
Title: Vice President Title: Vice President
Date: March 15, 1999 Date: March 11, 1999
-------------- --------------
23
FOREIGN CUSTODY MANAGER Addendum to GLOBAL CUSTODIAL SERVICES AGREEMENT, dated
as of 15 March , 1999, by and between JANUS INVESTMENT FUND (the "Client") and
CITIBANK, N.A. (the "Custodian").
The Client desires to have the Custodian assume and discharge the responsibility
of the Client's board of directors (hereinafter the "Board") to select, contract
with and monitor certain custodians of non-U.S. assets of the Client held by the
Custodian pursuant to the Global Custodial Services Agreement (the "Agreement").
The Custodian agrees to accept the delegation and to perform the responsibility
as provided in this Addendum.
(A) Foreign Custody Manager:
(i) The Board hereby delegates to the Custodian, and the Custodian
hereby accepts the delegation to it, of the obligation to serve as the
Client's "Foreign Custody Manager" (as defined in Rule 17f-5(a)(2)
under the Investment Company Act of 1940, as amended from time to
time), in respect to the Client's foreign investments held from time to
time by the Custodian with any Subcustodian or Clearance System (each
defined in the Agreement) that is an Eligible Foreign Custodian (as
defined in Rule 17f-5(a)(1)) and that is not a Compulsory Depository as
defined below. Foreign investments are any Property (as defined in the
Agreement) for which the primary market is outside the U.S.A.
(ii) As Foreign Custody Manager, the Custodian shall:
(1) select Eligible Foreign Custodians to serve as foreign
custodians and place and maintain the Client's foreign
investments with such foreign custodians;
(2) in selecting an Eligible Foreign Custodian, first
determine that foreign investments placed and maintained in
the safekeeping of each Eligible Foreign Custodian shall be
subject to reasonable care, based on the standards applicable
to custodians in the relevant market, after having considered
all factors relevant to the safekeeping of such investments
including, without limitation, those factors set forth in Rule
17f-5(c)(1)(i)- (iv);
(3) enter into written agreements with each Eligible Foreign
Custodian selected by the Custodian hereunder;
(4) determine that the written contract with each Eligible
Foreign Custodian (or, in the case of an Eligible Foreign
Custodian that is a Clearance System such contract (which may
be between the Custodian and the Clearance System or between
an Eligible Foreign Custodian selected by the Custodian and
the Clearance System), the rules or established practices or
procedures of the Clearance System, or any combination of the
foregoing) requires that the Eligible Foreign Custodian will
provide reasonable care for the foreign investments, based on
the standards applicable to custodians in the relevant market,
and that all such contracts, rules, practices and procedures
satisfy the requirements of Rule 17f-5(c)(2);
(5) provide written reports (x) notifying the Board of the
placement of foreign investments with each Eligible Foreign
Custodian, such reports to be provided at such regularly
scheduled meetings of the Board, and (y) promptly notifying
the Board of the occurrence of any material change in the
arrangements with an Eligible Foreign Custodian;
24
(6) monitor the continued appropriateness of (x) maintaining
the foreign investments with Eligible Foreign Custodians
selected hereunder and (y) the governing contractual
arrangements; it being understood, however, that in the event
the Custodian shall determine that any Eligible Foreign
Custodian would no longer afford the foreign investments
reasonable care, the Custodian shall promptly so advise the
Client and shall then act in accordance with Instructions (as
defined in the Agreement) with respect to the disposition of
the foreign investments held by such Eligible Foreign
Custodian; and (7) exercise such reasonable care, prudence and
diligence in serving as the Foreign Custody Manager as the
Custodian exercises in performing its responsibility under the
Agreement for the safekeeping of the Client's Property (as
defined in the Agreement).
(iii) Nothing in this paragraph shall relieve the Custodian of any
responsibility otherwise provided in the Agreement or this Addendum for
loss or damage suffered by the Client from an act of negligence or
willful misconduct on the part of the Custodian.
(iv) Nothing in this Addendum shall require the Custodian to make any
selection on behalf of the Client that would entail consideration of
any factor reasonably related to the systemic risk of holding assets in
a particular country including, but not limited to, such country's
financial infrastructure and prevailing settlement practices. The
Custodian agrees to provide to the Client such information relating to
such risk as the Client shall reasonably request from time to time and
such other information as the Custodian generally makes available to
customers with regard to such countries and risk. The Client and the
Board may reasonably rely on the veracity and completeness of such
information.
(B) Compulsory Depositories:
(i) Notwithstanding the provisions of Section A above, the Custodian
shall not serve as Foreign Custody Manager in respect of any Compulsory
Depository, as defined below. The Custodian, through its branches or
any Subcustodians, shall be entitled to deposit and maintain the
foreign investments in Compulsory Depositories as the Custodian deems
prudent and appropriate, unless otherwise instructed by the Client or
its delegate;
(ii) Prior to depositing the foreign investments in any Compulsory
Depository, the Custodian shall notify the Client that a Compulsory
Depository will be used and provide the Client, in respect of the
Compulsory Depository, with current information of the type the
Custodian provided to clients in the Custodian's informational binders
entitled "SEC Rule 17f-5 Package". The Custodian, shall make its
representatives available to consult, in good faith, with such of the
Client's delegates as the Client shall designate regarding the
advisability of depositing the Client's foreign investments with any
Compulsory Depository;
(iii) The Custodian shall provide the Client with reports regarding
Compulsory Depositories as provided in Section (A)(ii)(5), above and
shall provide the Client with such other information with regard to any
Compulsory Depository as the Client shall reasonably request;
(iv) A "Compulsory Depository" shall mean a Clearance System that is a
non-U.S. securities depository or clearing agency the use of which is
mandatory (x) by law or regulation, (y) because securities cannot be
withdrawn from the depository or clearing agency or (z) because
maintaining securities outside the securities depository or clearing
agency is not consistent with prevailing local custodial practices. The
Custodian shall supply to the Client from time to time a schedule of
the Compulsory Depositories in which the Custodian holds the Client's
foreign investments; and
(v) Notwithstanding anything to the contrary contained in this Section
(B), the Custodian agrees that if, and at such time as, the Securities
and Exchange Commission further revises Rule 17f-5 to
25
modify the application of the Rule with respect to the selection of,
monitoring of and contracting with Compulsory Depositories, the
Custodian will negotiate with the Client in good faith as to the terms
under which it will accept such further delegation.
(C) Termination:
(i) The Client may terminate this delegation upon written notice
to the Custodian.
(ii) The Custodian may terminate its acceptance of this delegation
upon ninety (90) days written notice to the Client.
IN WITNESS WHEREOF, the parties have caused this Addendum to be executed as of
the 15 day of March, 1999, by their respective officers thereunto duly
authorized.
CITIBANK, N.A., NEW YORK OFFICE JANUS INVESTMENT FUND
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxxxxxx
Title: Vice President Title: Vice President
26
