CUSTODIAN CONTRACT
Between
THE NON-U.S. FIXED INCOME PORTFOLIO
and
STATE STREET BANK AND TRUST COMPANY
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21E593
TABLE OF CONTENTS
Page
1. Employment of Custodian and Property to be
Held By It............................................................1
2. Duties of the Custodian with Respect to Property
of the Fund Held by the Custodian in the United States................2
2.1 Holding Securities...........................................2
2.2 Delivery of Securities.......................................3
2.3 Registration of Securities...................................7
2.4 Bank Accounts................................................8
2.5 Availability of Federal Funds................................9
2.6 Collection of Income.........................................9
2.7 Payment of Fund Monies......................................10
2.8 Liability for Payment in Advance of Receipt of Securities
Purchased...................................................13
2.9 Appointment of Agents.......................................13
2.10 Deposit of Fund Assets in Securities System.................14
2.10A Fund Assets Held in the Custodian's Direct Paper
System.............................................17
2.11 Segregated Account..........................................18
2.12 Ownership Certificates for Tax Purposes.....................19
2.13 Proxies.....................................................20
2.14 Communications Relating to Fund Securities..................20
3. Duties of the Custodian with Respect to Property of
the Fund Held Outside of the United States...........................21
3.1 Appointment of Foreign Sub-Custodians.......................21
3.2 Assets to be Held...........................................21
3.3 Foreign Securities Depositories.............................22
3.4 Agreements with Foreign Banking Institutions................22
3.5 Access of Independent Accountants of the Fund...............23
3.6 Reports by Custodian........................................23
3.7 Transactions in Foreign Custody Account.....................24
3.8 Liability of Foreign Sub-Custodians.........................25
3.9 Liability of Custodian......................................25
3.10 Reimbursement for Advances..................................26
3.11 Monitoring Responsibilities.................................27
3.13 Branches of U.S. Banks......................................28
3.13 Tax Law.....................................................28
4. Payments for Sales or Repurchase or Redemptions of Shares of
the Fund.............................................................29
5. Proper Instructions..................................................30
TABLE OF CONTENTS continued
Page
6. Actions Permitted Without Express Authority..........................31
7. Evidence of Authority................................................32
8. Duties of Custodian with Respect to the Books of Account and
Calculation of Net Asset Value and Net Income........................32
9. Records..............................................................33
10. Opinion of Fund's Independent Accountants............................34
11. Reports to Fund by Independent Public Accountants....................34
12. Compensation of Custodian............................................35
13. Responsibility of Custodian..........................................35
14. Effective Period, Termination and Amendment..........................37
15. Successor Custodian..................................................39
16. Interpretive and Additional Provisions...............................41
17. Massachusetts Law to Apply...........................................41
18. Prior Contracts......................................................41
19. Shareholder Communications Election..................................41
20. Limitation of Liability..............................................42
CUSTODIAN CONTRACT
This Contract between The Non-U.S. Fixed Income Portfolio, a business
trust organized and existing under the laws of the State of New York, having its
principal place of business at ▇.▇. ▇▇▇ ▇▇▇ Elizabethan Square, 2nd Floor,
▇▇▇▇▇▇ Town, Grand Cayman, BWI, hereinafter called the "Fund", and State Street
Bank and Trust Company, a Massachusetts trust company, having its principal
place of business at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇,
hereinafter called the "Custodian",
WITNESSETH, in consideration of the mutual covenants and agreements
hereinafter contained, the parties hereto agree as follows:
1. Employment of Custodian and Property to be Held by It
The Fund hereby employs the Custodian as the custodian of the assets of
the Fund, including securities which the Fund desires to be held in places
within the United States ("domestic securities") and securities it desires to be
held outside the United States ("foreign securities") pursuant to the provisions
of the Declaration of Trust. The Fund agrees to deliver to the Custodian all
securities and cash of the Fund, and all payments of income, payments of
principal or capital distributions received by it with respect to all securities
owned by the Fund from time to time, and the cash consideration received by it
for such new or treasury shares of beneficial interest of the Fund ("Shares") as
may be issued or sold from time to time. The
1
Custodian shall not be responsible for any property of the Fund held or
received by the Fund and not delivered to the Custodian.
Upon receipt of "Proper Instructions" (within the meaning of
Article 5), the Custodian shall on behalf of the applicable Fund(s)
from time to time employ one or more sub-custodians, located in the
United States but only in accordance with an applicable vote by the
Board of Trustees of the Fund and provided that the Custodian shall
have no more or less responsibility or liability to the Fund on account
of any actions or omissions of any sub-custodian so employed than any
such sub-custodian has to the Custodian.
The Custodian may employ as sub-custodian for the Fund's foreign
securities foreign banking institutions and foreign securities
depositories designated in Schedule A hereto but only in accordance
with the provisions of Article 3.
2. Duties of the Custodian with Respect to Property of the Fund Held By
the Custodian in the United States
2.1 Holding Securities. The Custodian shall hold and physically segregate
for the account of the Fund all non-cash property, to be held by it in
the United States including all domestic securities owned by the Fund,
other than (a) securities which are maintained pursuant to Section
2.10 in a clearing agency which acts as a securities depository
or in a book-entry system authorized by the U.S. Department of the
Treasury, collectively
2
referred to herein as "Securities System" and (b) commercial paper of
an issuer for which State Street Bank and Trust Company acts as issuing
and paying agent ("Direct Paper") which is deposited and/or maintained
in the Direct Paper System of the Custodian pursuant to Section 2.10A.
2.2 Deliveries of Securities. The Custodian shall release and deliver
domestic securities owned by the Fund held by the Custodian or in
a Securities System account of the Custodian or in the Custodian's
Direct Paper book entry system account ("Direct Paper System
Account") only upon receipt of Proper Instructions from the Fund,
which may be continuing instructions when deemed appropriate by
the parties, and only in the following cases:
1) Upon sale of such securities for the account of
the Fund and receipt of payment therefor;
2) Upon the receipt of payment in connection with
any repurchase agreement related to such
securities entered into by the Fund;
3) In the case of a sale effected through a
Securities System, in accordance with the
provisions of Section 2.10 hereof;
4) To the depository agent in connection with
tender or other similar offers for securities of
the Fund;
5) To the issuer thereof or its agent when such
securities are called, redeemed, retired or
3
otherwise become payable; provided that, in any
such case, the cash or other consideration is to
be delivered to the Custodian;
6) To the issuer thereof, or its agent, for transfer
into the name of the Fund or into the name of any
nominee or nominees of the Custodian or into the
name or nominee name of any agent appointed
pursuant to Section 2.9 or into the name or
nominee name of any sub-custodian appointed
pursuant to Article 1; or for exchange for a
different number of bonds, certificates or other
evidence representing the same aggregate face
amount or number of units; provided that, in any
such case, the new securities are to be delivered
to the Custodian;
7) Upon the sale of such securities for the account
of the Fund, to the broker or its clearing agent,
against a receipt, for examination in accordance
with "street delivery" custom; provided that in
any such case, the Custodian shall have no
responsibility or liability for any loss arising
from the delivery of such securities prior to
receiving payment for such securities except as
may arise from the Custodian's own negligence or
willful misconduct;
8) For exchange or conversion pursuant to any plan
of
4
merger, consolidation, recapitalization,
reorganization or readjustment of the securities
of the issuer of such securities, or pursuant to
provisions for conversion contained in such
securities, or pursuant to any deposit agreement;
provided that, in any such case, the new
securities and cash, if any, are to be delivered
to the Custodian;
9) In the case of warrants, rights or similar
securities, the surrender thereof in the exercise
of such warrants, rights or similar securities or
the surrender of interim receipts or temporary
securities for definitive securities; provided
that, in any such case, the new securities and
cash, if any, are to be delivered to the
Custodian;
10) For delivery in connection with any loans of
securities made by the Fund, but only against
receipt of adequate collateral as agreed upon
from time to time by the Custodian and the Fund
on behalf of the Portfolio, which may be in the
form of cash or obligations issued by the United
States government, its agencies or
instrumentalities, except that in connection with
any loans for which collateral is to be credited
to the Custodian's account in the book-entry
system authorized by the
5
U.S. Department of the Treasury, the Custodian
will not be held liable or responsible for the
delivery of securities owned by the Fund prior
to the receipt of such collateral;
11) For delivery as security in connection with any
borrowings by the Fund requiring a pledge of
assets by the Fund, but only against receipt of
amounts borrowed;
12) For delivery in accordance with the provisions of
any agreement among the Fund, the Custodian and a
broker-dealer registered under the Securities
Exchange Act of 1934 (the "Exchange Act") and a
member of The National Association of Securities
Dealers, Inc. ("NASD"), relating to compliance
with the rules of The Options Clearing
Corporation and of any registered national
securities exchange, or of any similar
organization or organizations, regarding escrow
or other arrangements in connection with
transactions by the Fund;
13) For delivery in accordance with the provisions of
any agreement among the Fund, the Custodian, and
a Futures Commission Merchant registered under
the Commodity Exchange Act, relating to
compliance with the rules of the Commodity
Futures Trading Commission and/or any Contract
Market, or any
6
similar organization or organizations, regarding
account deposits in connection with transactions
by the Fund;
14) Upon receipt of instructions from the transfer
agent ("Transfer Agent") for the Fund, for
delivery to such Transfer Agent or to the holders
of shares in connection with distributions in
kind, as may be described from time to time in
the currently effective prospectus and statement
of additional information of the Fund, related to
the Fund ("Prospectus"), in satisfaction of
requests by holders of Shares for repurchase or
redemption; and
15) For any other proper corporate purpose, but only
upon receipt of, in addition to Proper
Instructions from the Fund, a certified copy of a
resolution of the Board of Trustees or of the
Executive Committee signed by an officer of the
Fund and certified by the Secretary or an
Assistant Secretary, specifying the securities of
the Fund to be delivered, setting forth the
purpose for which such delivery is to be made,
declaring such purpose to be a proper corporate
purpose, and naming the person or persons to whom
delivery of such securities shall be made.
2.3 Registration of Securities. Domestic securities held
by
7
the Custodian (other than bearer securities) shall be
registered in the name of the Fund or in the name of any
nominee of the Fund or of any nominee of the Custodian
which nominee shall be assigned exclusively to the Fund,
unless the Fund has authorized in writing the appointment
of a nominee to be used in common with other registered
investment companies having the same investment adviser as
the Fund, or in the name or nominee name of any agent
appointed pursuant to Section 2.9 or in the name or
nominee name of any sub-custodian appointed pursuant to
Article 1. All securities accepted by the Custodian under
the terms of this Contract shall be in "street name" or
other good delivery form. If, however, the Fund directs
the Custodian to maintain securities in "street name", the
Custodian shall utilize its best efforts only to timely
collect income due the Fund on such securities and to
notify the Fund on a best efforts basis only of relevant
corporate actions including, without limitation, pendency
of calls, maturities, tender or exchange offers.
2.4 Bank Accounts. The Custodian shall open and maintain a
separate bank account or accounts in the United States in
the name of the Fund, subject only to draft or order by
the Custodian acting pursuant to the terms of this
Contract, and shall hold in such account or accounts,
subject to the provisions hereof, all cash received by it
from or for the account of the Fund, other than cash
maintained by the Fund
8
in a bank account established and used in accordance with
Rule 17f-3 under the Investment Company Act of 1940. Funds
held by the Custodian for a Fund may be deposited by it to
its credit as Custodian in the Banking Department of the
Custodian or in such other banks or trust companies as it
may in its discretion deem necessary or desirable;
provided, however, that every such bank or trust company
shall be qualified to act as a custodian under the
Investment Company Act of 1940 and that each such bank or
trust company and the funds to be deposited with each such
bank or trust company shall be approved by vote of a
majority of the Board of Trustees of the Fund. Such funds
shall be deposited by the Custodian in its capacity as
Custodian and shall be withdrawable by the Custodian only
in that capacity.
2.5 Availability of Federal Funds. Upon mutual agreement
between the Fund and the Custodian, the Custodian shall,
upon the receipt of Proper Instructions from the Fund,
make federal funds available to such Fund as of specified
times agreed upon from time to time by the Fund and the
Custodian in the amount of checks received in payment for
Shares of such Fund which are deposited into the Fund's
account.
2.6 Collection of Income. Subject to the provisions of Section
2.3, the Custodian shall collect on a timely basis all
income and other payments with respect to registered
domestic securities held hereunder to which the Fund shall
9
be entitled either by law or pursuant to custom in
the securities business, and shall collect on a timely
basis all income and other payments with respect to bearer
domestic securities if, on the date of payment by the
issuer, such securities are held by the Custodian or its
agent thereof and shall credit such income, as collected,
to such Fund's custodian account. Without limiting the
generality of the foregoing, the Custodian shall detach
and present for payment all coupons and other income items
requiring presentation as and when they become due and
shall collect interest when due on securities held
hereunder. Income due the Fund on securities loaned
pursuant to the provisions of Section 2.2 (10) shall be
the responsibility of the Fund. The Custodian will have no
duty or responsibility in connection therewith, other than
to provide the Fund with such information or data as may
be necessary to assist the Fund in arranging for the
timely delivery to the Custodian of the income to which
the Fund is properly entitled.
2.7 Payment of Fund Monies. Upon receipt of Proper
Instructions from the Fund, which may be continuing
instructions when deemed appropriate by the parties, the
Custodian shall pay out monies of the Fund in the
following cases only:
1) Upon the purchase of domestic securities, options,
options, futures contracts or options on futures
contracts
10
for the account of the Fund but only (a) against
the delivery of such securities or evidence of
title to such options, futures contracts or
options on futures contracts to the Custodian (or
any bank, banking firm or trust company doing
business in the United States or abroad which is
qualified under the Investment Company Act of
1940, as amended, to act as a custodian and has
been designated by the Custodian as its agent for
this purpose) registered in the name of the Fund
or in the name of a nominee of the Custodian
referred to in Section 2.3 hereof or in proper
form for transfer; (b) in the case of a purchase
effected through a Securities System, in
accordance with the conditions set forth in
Section 2.10 hereof; (c) in the case of a
purchase involving the Direct Paper System, in
accordance with the conditions set forth in
Section 2.10A; (d) in the case of repurchase
agreements entered into between the Fund and the
Custodian, or another bank, or a broker-dealer
which is a member of NASD, (i) against delivery
of the securities either in certificate form or
through an entry crediting the Custodian's
account at the Federal Reserve Bank with such
securities or (ii) against delivery of the
receipt evidencing purchase by the
11
Fund of securities owned by the Custodian along
with written evidence of the agreement by the
Custodian to repurchase such securities from the
Fund or(e)for transfer to a time deposit account
of the Fund in any bank, whether domestic or
foreign; such transfer may be effected prior to
receipt of a confirmation from a broker and/or
the applicable bank pursuant to Proper
Instructions from the Fund as defined in Article
5;
2) In connection with conversion, exchange or
surrender of securities owned by the Fund as set
forth in Section 2.2 hereof;
3) For the redemption or repurchase of Shares
issued by the Fund as set forth in Article 4
hereof;
4) From an account of the Fund located outside of
the United States, for the payment of any expense
or liability incurred by the Fund, including but
not limited to the following payments for the
account of the Fund: interest, taxes, management,
accounting, transfer agent and legal fees, and
operating expenses of the Fund whether or not
such expenses are to be in whole or part
capitalized or treated as deferred expenses;
5) From an account of the Fund located outside of
the United States, for the payment of any
dividends on
12
Shares of the Fund declared pursuant
to the governing documents of the Fund;
6) For payment of the amount of dividends received
in respect of securities sold short;
7) For any other proper purpose, but only upon
receipt of, in addition to Proper Instructions
from the Fund, a certified copy of a resolution
of the Board of Trustees or of the Executive
Committee of the Fund signed by an officer of the
Fund and certified by its Secretary or an
Assistant Secretary, specifying the amount of
such payment, setting forth the purpose for which
such payment is to be made, declaring such
purpose to be a proper purpose, and naming the
person or persons to whom such payment is to be
made.
2.8 Liability for Payment in Advance of Receipt of Securities
Purchased. Except as specifically stated otherwise in this
Contract, in any and every case where payment for purchase of
domestic securities for the account of a Fund is made by the
Custodian in advance of receipt of the securities purchased in the
absence of specific written instructions from the Fund so pay in
advance, the Custodian shall be absolutely liable to the Fund for
such securities to the same extent as if the securities had been
received by the Custodian.
2.9 Appointment of Agents. The Custodian may at any time
13
or times in its discretion appoint (and may at any time remove)
any other bank or trust company which is itself qualified under
the Investment Company Act of 1940, as amended, to act as a
custodian, as its agent to carry out such of
the provisions of this Article 2 as the Custodian may from time to
time direct; provided, however, that the appointment of any agent
shall not relieve the Custodian of its responsibilities or
liabilities hereunder.
2.10 Deposit of Fund Assets in Securities Systems. The Custodian may
deposit and/or maintain securities owned by the Fund in a clearing
agency registered with the Securities and Exchange Commission
under Section 17A of the Securities Exchange Act of 1934, which
acts as a securities depository, or in the book-entry system
authorized by the U.S. Department of the Treasury and certain
federal agencies, collectively referred to herein as "Securities
System" in accordance with applicable Federal Reserve Board and
Securities and Exchange Commission rules and regulations, if any,
and subject to the following provisions:
1) The Custodian may keep securities of the Fund
in a Securities System provided that such
securities
14
are represented in an account
("Account") of the Custodian in the Securities
System which shall not include any assets of the
Custodian other than assets held as a fiduciary,
custodian or otherwise for customers;
2) The records of the Custodian with respect to
securities of the Fund which are maintained in a
Securities System shall identify by book-entry
those securities belonging to the Fund; 3) The
Custodian shall pay for securities purchased for
the account of the Fund upon (i) receipt of
advice from the Securities System that such
securities have been transferred to the Account,
and (ii) the making of an entry on the records of
the Custodian to reflect such payment and
transfer for the account of the Fund. The
Custodian shall transfer securities sold for the
account of the Fund upon (i) receipt of advice
from the Securities System that payment for such
securities has been transferred to the Account,
and (ii) the making of an entry on the records of
the Custodian to reflect such transfer and
payment for the account of the Fund. Copies of
all advices from the Securities System of
transfers of securities for the account of the
Fund shall identify the Fund, be maintained for
the Fund by the Custodian
15
and be provided to the
Fund at its request. Upon request, the Custodian
shall furnish the Fund on behalf of the Fund
confirmation of each transfer to or from the
account of the Fund in the form of a written
advice or notice and shall furnish to the Fund on
behalf of the Fund copies of daily transaction
sheets reflecting each day's transactions in the
Securities System for the account of the Fund;
4) The Custodian shall provide the Fund 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;
5) The Custodian shall have received from the Fund
initial or annual certificate, as the case may
be, required by Article 14 hereof;
6) Anything to the contrary in this Contract
notwithstanding, the Custodian shall be liable to
the Fund for any loss or damage to the Fund
resulting from use of the Securities System by
reason of any negligence, misfeasance or
misconduct of the Custodian or any of its agents
or of any of its or their employees or from
failure of the Custodian or any such agent to
enforce effectively such rights as it may have
16
against the Securities System; at the election of
the Fund, it shall be entitled to be subrogated
to the rights of the Custodian with respect to
any claim against the Securities System or any
other person which the Custodian may have as a
consequence of any such loss or damage if and to
the extent that the Fund has not been made whole
for any such loss or damage.
2.10A Fund Assets Held in the Custodian's Direct Paper System The
Custodian may deposit and/or maintain securities owned by the Fund
in the Direct Paper System of the Custodian subject to the
following provisions:
1) No transaction relating to securities in the
Direct Paper System will be effected in the
absence of Proper Instructions from the Fund;
2) The Custodian may keep securities of the Fund in
the Direct Paper System only if such securities
are represented in an account ("Account") of the
Custodian in the Direct Paper System which shall
not include any assets of the Custodian other
than assets held as a fiduciary, custodian or
otherwise for customers;
3) The records of the Custodian with respect to
securities of the Fund which are maintained in
the Direct Paper System shall identify by book-
entry
17
those securities belonging to the Fund;
4) The Custodian shall pay for securities purchased
for the account of the Fund upon the making of an
entry on the records of the Custodian to reflect
such payment and transfer of securities to the
account of the Fund. The Custodian shall transfer
the making of an entry on the records of the
Custodian to reflect such transfer and
receipt of payment for the account of the Fund;
5) The Custodian shall furnish the Fund confirmation
of each transfer to or from the account of the
Fund, in the form of a written advice or notice,
of Direct Paper on the next business day
following such transfer and shall furnish to the
Fund copies of daily transaction sheets
reflecting each day's transaction in the
Securities System for the account of the Fund;
6) The Custodian shall provide the Fund on behalf of
the Fund with any report on its system of
internal accounting control as the Fund may
reasonably request from time to time.
2.11 Segregated Account. The Custodian shall upon receipt of Proper
Instructions from the Fund establish and maintain a segregated
account or accounts for and on behalf of the Fund, into which
account or accounts may be transferred
18
cash and / or securities, including securities maintained in an
account by the Custodian pursuant to Section 2.10 hereof, (i) in
accordance with the provisions of any agreement among the Fund,
the Custodian and a broker-dealer registered under the Exchange
Act and a member of the NASD (or any futures commission merchant
registered under the Commodity Exchange Act), relating to
compliance with the rules of The Options Clearing Corporation and
of any registered
national securities exchange (or the Commodity Futures Trading
Commission or any registered contract market), or of any similar
organization or organizations, regarding escrow or other
arrangements in connection with transactions by the Fund, (ii) for
purposes of segregating cash or government securities in
connection with options purchased, sold or written by the Fund or
commodity futures contracts or options thereon purchased or sold
by the Fund, (iii) for the purposes of compliance by the Fund with
the procedures required by Investment Company Act Release No.
10666, or any subsequent release or releases of the Securities and
Exchange Commission relating to the maintenance of segregated
accounts by registered investment companies and (iv) for other
proper corporate purposes, but only, in the case of clause (iv),
upon receipt of, in addition to Proper Instructions from the Fund,
a certified copy of a resolution of the Board of Trustees or of
the Executive Committee signed by an officer of the Fund and
19
certified by the Secretary or an Assistant Secretary, setting
forth the purpose or purposes of such segregated account and
declaring such purposes to be proper corporate purposes.
2.12 Ownership Certificates for Tax Purposes. The Custodian
shall execute ownership and other certificates and affidavits for
all federal and state tax purposes in connection with receipt of
income or other payments with respect to domestic securities of
the Fund held by it and in connection with transfers of
securities.
2.13 Proxies. The Custodian shall, with respect to the domestic
securities held hereunder, cause to be promptly executed by the
registered holder of such securities, if the securities are
registered otherwise than in the name of the Fund or a nominee of
the Fund, all proxies, without indication of the manner in which
such proxies are to be voted, and shall promptly deliver to the
Fund such proxies, all proxy soliciting materials and all notices
relating to such securities.
2.14 Communications Relating to Fund Securities. Subject to the
provisions of Section 2.3, the Custodian shall transmit promptly
to the Fund all written information (including, without
limitation, pendency of calls and maturities of domestic
securities and expirations of rights in connection
20
therewith and notices of exercise of call and put options written
by the Fund and the maturity of futures contracts purchased or
sold by the Fund) received by the Custodian from issuers of the
securities being held for the Fund. With respect to tender or
exchange offers, the Custodian shall transmit promptly to the
Fund all written information received by the Custodian from
issuers of the securities
whose tender or exchange is sought and from the party
(or his agents) making the tender or exchange offer. If the Fund
desires to take action with respect to any tender offer, exchange
offer or any other similar transaction, the Fund shall notify the
Custodian at least three business days prior to the date on which
the Custodian is to take such action.
3. Duties of the Custodian with Respect to Property of the Fund Held
Outside of the United States.
3.1 Appointment of Foreign Sub-Custodians. The Fund hereby
authorizes and instructs the Custodian to
employ as sub-custodians for the Fund's securities and other
assets maintained outside the United States the foreign banking
institutions and foreign securities depositories designated on
Schedule A hereto ("foreign sub-custodians"). Upon receipt of
"Proper Instructions", as defined in Section 5 of this Contract,
together with a certified resolution of the Fund's Board of
Trustees, the Custodian and the Fund may agree to amend Schedule A
hereto from time to time to
21
designate additional foreign banking
institutions and foreign securities depositories to act as
sub-custodian. Upon receipt of Proper Instructions, the Fund may
instruct the Custodian to cease the employment of any one or more
such sub-custodians for maintaining custody of the Fund's assets.
3.2 Assets to be Held. The Custodian shall limit the
securities and other assets maintained in the custody of the
foreign sub-custodians to: (a) "foreign securities", as defined in
paragraph (c)(1) of Rule 17f-5 under the Investment Company Act of
1940, and (b) cash and cash equivalents in such amounts as the
Custodian or the Fund may determine to be reasonably necessary to
effect the Fund's foreign securities transactions. The Custodian
shall identify on its books as belonging to the Fund, the foreign
securities of the Fund held by each foreign sub-custodian.
3.3 Foreign Securities Depositories. Except as may otherwise be agreed
upon in writing by the Custodian and the Fund, assets of the Funds
shall be maintained in foreign securities depositories only
through arrangements implemented by the foreign banking
institutions serving as sub-custodians pursuant to the terms
hereof. Where possible, such arrangements shall include entry into
agreements containing the provisions set forth in Section 3.4
hereof.
22
3.4 Agreements with Foreign Banking Institutions. Each agreement with
a foreign banking institution shall be substantially in the form
set forth in Exhibit 1 hereto and shall provide that: (a) the
assets of the Fund will not be subject to any right, charge,
security interest, lien or claim of any kind in favor of the
foreign banking institution or its creditors or agent, except a
claim of payment for their safe custody or administration;
(b) beneficial ownership for the assets of the Fund will be freely
transferable without the payment of money or value other than for
custody or administration; (c) adequate records will be maintained
identifying the assets as belonging to the Fund; (d) officers of
or auditors employed by, or other representatives of the
Custodian, including to the extent permitted under applicable law
the independent public accountants for the Fund, will be given
access to the books and records of the foreign banking institution
relating to its actions under its agreement with the Custodian;
and (e) assets of the Fund held by the foreign sub-custodian will
be subject only to the instructions of the Custodian or its
agents.
3.5 Access of Independent Accountants of the Fund. Upon request of the
Fund, the Custodian will use its best efforts to arrange for the
independent accountants of the Fund to be afforded access to the
books and records of any foreign banking institution employed as a
foreign
23
sub - custodian insofar as such books and records relate to
the performance of such foreign banking institution under its
agreement with the Custodian.
3.6 Reports by Custodian. The Custodian will supply to the Fund from
time to time, as mutually agreed upon, statements in respect of
the securities and other assets of the Fund(s) held by foreign
sub-custodians, including but not limited to an identification of
entities having possession of the
Fund's securities and other assets and advices or notifications of
any transfers of securities to or from each custodial account
maintained by a foreign banking institution for the Custodian on
behalf of the Fund indicating, as to securities acquired for the
Fund, the identity of the entity having physical possession of
such securities.
3.7 Transactions in Foreign Custody Account
(a) Except as otherwise provided in paragraph (b) of this Section
3.7, the provision of Sections 2.2 and 2.7 of this Contract shall
apply, mutatis mutandis to the foreign securities of the Fund held
outside the United States by foreign sub-custodians.
(b) Notwithstanding any provision of this Contract to the contrary,
settlement and payment for securities received for the account of
the Fund and delivery of securities maintained for the account of
Fund may be effected in accordance with the customary established
securities
24
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 for such securities from such purchaser
or dealer.
(c) Securities maintained in the custody of a foreign
sub-custodian may be maintained in the name of such entity's
nominee to the same extent as set forth in Section 2.3 of this
Contract, and the Fund agrees to hold any such nominee harmless
from any liability as a holder of record of such securities.
3.8 Liability of Foreign Sub-Custodians. Each agreement pursuant to
which the Custodian employs a foreign banking institution as a
foreign sub-custodian shall require the institution to exercise
reasonable care in the performance of its duties and to indemnify,
and hold harmless, the Custodian and the Fund from and against any
loss, damage, cost, expense, liability or claim arising out of or
in connection with the institution's performance of such
obligations. At the election of the Fund, it shall be entitled to
be subrogated to the rights of the Custodian with respect to any
claims against a foreign banking institution as a consequence of
any such loss, damage, cost, expense, liability or claim if and to
the extent that
25
the Fund has not been made whole for any such
loss, damage, cost, expense, liability or claim.
3.9 Liability of Custodian. The Custodian shall be liable for the acts
or omissions of a foreign banking institution to he same extent as
set forth with respect to sub-custodians generally in this
Contract and, regardless of whether assets are maintained in the
custody of a foreign banking
institution, a foreign securities depository or a branch of a U.S.
bank as contemplated by paragraph 3.12 hereof, the Custodian shall
not be liable for any loss, damage, cost, expense, liability or
claim resulting from nationalization, expropriation, currency
restrictions, or acts of war or terrorism or any loss where the
sub-custodian has otherwise exercised reasonable care.
Notwithstanding the foregoing provisions of this paragraph 3.9, in
delegating custody duties to State Street London Ltd., the
Custodian shall not be relieved of any responsibility to the Fund
for any loss due to such delegation, except such loss as may
result from (a) political risk (including, but not limited to,
exchange control restrictions, confiscation, expropriation,
nationalization, insurrection, civil strife or armed hostilities)
or (b) other losses (excluding a bankruptcy or insolvency of State
Street London Ltd. not caused by political risk) due to Acts of
God, nuclear incident or other losses under circumstances where
the Custodian and State Street London Ltd. have exercised
reasonable care.
26
3.10 Reimbursement for Advances. If the Fund requires the Custodian to
advance cash or securities for any purpose including the purchase
or sale of foreign exchange or of contracts for foreign exchange,
or in the event that the Custodian or its nominee shall incur or
be assessed any taxes, charges, expenses, assessments, claims or
liabilities in connection with the performance of this
Contract, except such as may arise from its or its nominee's own
negligent action, negligent failure to act or willful misconduct,
any property at any time held for the account of the Fund shall be
security therefor and should the Fund fail to repay the Custodian
promptly, the Custodian shall be entitled to utilize available
cash and to dispose of the Fund's assets to the extent necessary
to obtain reimbursement.
3.11 Monitoring Responsibilities. The Custodian shall furnish annually
to the Fund, during the month of June, information concerning the
foreign sub-custodians employed by the Custodian. Such information
shall be similar in kind and scope to that furnished to the Fund
in connection with the initial approval of this Contract. In
addition, the Custodian will promptly inform the Fund in the event
that the Custodian learns of a material adverse change in the
financial condition of a foreign sub-custodian or any material
loss of the assets of the Fund or in the case of any foreign
sub-custodian not the subject of an exemptive
27
order from the
Securities and Exchange Commission is notified by such foreign
sub-custodian that there appears to be a substantial likelihood
that its shareholders' equity will decline below $200 million
(U.S. dollars or the equivalent thereof) or that its shareholders'
equity has declined below $200 million (in each case computed in
accordance with generally accepted U.S. accounting principles).
3.12 Branches of U.S. Banks. (a) Except as otherwise set forth in this
Contract, the provisions hereof shall not apply where the custody
of the Fund's assets are maintained in a foreign branch of a
banking institution which is a "bank" as defined by Section
2(a)(5) of the Investment Company Act of 1940 meeting the
qualification set forth in Section 26(a) of said Act. The
appointment of any such branch as a sub-custodian shall be
governed by paragraph 1 of this Contract. (b) Cash held for the
Fund in the United Kingdom shall be maintained in an interest
bearing account established for the Fund with the Custodian's
London branch, which account shall be subject to the direction of
the Custodian, State Street London Ltd. or both.
3.13 Tax Law.
(a) United States Taxes
The Custodian shall have no responsibility or liability for any
28
obligations now or hereafter imposed on the Fund or the Custodian
as custodian of the Fund by the tax law of the United States of
America or any state or political subdivision thereof. The
Custodian will be responsible for informing the Fund of the income
received by the Fund which is United States source income and
which is non-United States source income.
(b) Claiming for Exemption or Refunds under the Tax Laws of
Non-United States Jurisdictions
The sole responsibility of the Custodian with regard to the tax
laws of non-United States jurisdictions shall be to identify the
income of the Fund which has been subject to withholding and other
tax assessments or other governmental charges by such
jurisdictions and, on the basis of information furnished to it by
the Fund as to the allocated amount of such income that is
attributable to each of its investors, to use reasonable efforts
to assist the Fund or its investors with respect to any claim for
exemption or refund of such charges that can be made on behalf of
such Fund or such investors.
4. Payments for Sales or Repurchases or Redemptions of Interests in
the Fund. The Custodian shall receive and deposit into the account
of the Fund such payments as are received for interests in the
Fund issued or sold from time to time by the Fund. The Custodian
will provide notification to the Fund of any receipt by it of
payments
29
for interests in the Fund.
From such funds as may be available for the purpose but
subject to the limitations of the Declaration of Trust and
any applicable votes of the Board of Trustees of the Fund
pursuant thereto, the Custodian shall, upon receipt of
instructions from the Fund, make funds available to an
account designated by the Fund for payment to holders of
interests in the Fund who have delivered to the Fund a
request for redemption or repurchase of their interests.
5. Proper Instructions. Proper Instructions as used through-
out this Contract means a writing signed or initialled by
one or more person or persons as the Board of Trustees
shall have from time to time authorized. Each such writing
shall set forth the specific transaction or type of trans-
action involved, including a specific statement of the
purpose for which such action is requested. Oral
instructions will be considered Proper Instructions if the
Custodian reasonably believes them to have been given by a
person authorized to give such instructions with respect
to the transaction involved. The Fund shall cause all oral
instructions to be confirmed in writing. It is understood
and agreed that the Board of Directors has authorized
▇▇▇▇▇▇ Guaranty Trust Company of New York ("▇▇▇▇▇▇
Guaranty"), as Advisor of the Fund pursuant to an
Investment Advisory Agreement, dated as of
30
May 30, 1990 between ▇▇▇▇▇▇ Guaranty and the Fund, to
deliver Proper Instructions
with respect to all matters for which Proper
Instructions are required by paragraphs 2.2(1) through
2.2(14), 2.5 , 2.7(1) and 2.7(2), 2.7(6), 2.11(i) through
2.11(iii) and 3.7(a). The Custodian may rely upon the
certificate of an officer of ▇▇▇▇▇▇ Guaranty with respect
to the person or persons authorized on behalf of ▇▇▇▇▇▇
Guaranty to sign, initial or give Proper Instructions for
the purposes of such paragraphs. Upon
receipt of a certificate of the Secretary or an Assistant
Secretary as to the authorization by the Board of Trustees
of the Fund accompanied by a detailed description of
procedures approved by the Board of Trustees, Proper
Instructions may include communications effected directly
between electro-mechanical or electronic devices provided
that the Board of Trustees and the Custodian are satisfied
that such procedures afford adequate safeguards for the
Fund's assets. For purposes of this Section, Proper
Instructions shall include instructions received by the
Custodian pursuant to any three - party agreement which
requires a segregated asset account in accordance with
Section 2.11.
6. Actions Permitted without Express Authority. The Custodian
may in its discretion, without express authority from the
Fund:
1) make payments to itself or others for
minor
31
expenses of handling securities or
or other similar items relating to its
duties under this Contract, provided that
all such payments shall be accounted for to
the Fund;
2) surrender securities in temporary form for
securities in definitive form;
3) endorse for collection, in the name of the
Fund, checks, drafts end other negotiable
instruments; and
4) in general, attend to all
non-discretionary details in connection
with the sale, exchange, substitution,
purchase, transfer and other dealings
with the securities and property of the
Fund except as otherwise directed by the
Board of Trustees of the Fund.
7. Evidence of Authority. The Custodian shall be protected
in acting upon any instructions, notice, request, consent,
certificate or other instrument or paper believed by it to
be genuine and to have been properly executed by or on
behalf of the Fund. The Custodian may receive and accept
a certified copy of a vote of the Board of Trustees of
the Fund as conclusive evidence (a) of the authority of
any person to act in accordance with such vote or (b) of
any determination or of any action by the Board of
Trustees pursuant to the Declaration of Trust as described
in such
33
vote, and such vote may be considered as in full
force and effect until receipt by the Custodian of written
notice to the contrary.
8. Duties of Custodian with Respect to the Books of Account
and Calculation of Net Income.
The Custodian shall keep the books of account of the
Fund. Until otherwise directed by Proper Instructions,
the Custodian shall calculate daily the net income of the
Fund as described in Part A of its Registration Statement
under the 1940 Act and shall advise
the Fund daily of the total amounts of such net income,
including the categorization of such net income by source.
The calculation of the Fund's net income and it components
shall include, but may not be limited to, accounting for
purchases and sales of portfolio securities, calculation
of realized and unrealized gains and losses, accruals of
income on portfolio investments, hub level expense
accruals and calculations of market value of portfolio
securities. The Custodian will transmit accounting
information produced by the Custodian to the Fund or an
agent designated by the Fund in such format and by such
means as the Fund and the Custodian shall agree in order
that the Fund or such agent may calculate the net asset
value and SEC yield of the Fund and the allocation of its
various components to investors in the Fund. The Custodian
shall in no event be responsible for the calculation or
publication of the net
33
asset value or yields of the Fund. All accounting
functions to be performed by the Custodian hereunder
shall be performed outside of the United States.
9. Records. The Custodian shall with respect to the Fund
create and maintain all records relating to its activities
and obligations under this Contract in such manner as the
Fund and the Custodian may agree from time to time. All
such records shall be the property of the Fund and shall
at all times during the regular business hours of the
Custodian be open for inspection by duly authorized
officers, employees or agents of the Fund and employees
and agents of the Securities and Exchange Commission. The
Custodian shall, at the Fund's request, supply the Fund
with a tabulation of securities owned by the Fund and held
by the Custodian and shall, when requested to do so by the
Fund and for such compensation as shall be agreed upon
between the Fund and the Custodian, include certificate
numbers in such tabulations.
10. Opinion of Fund's Independent Accountant. The Custodian
shall take all reasonable action, as the Fund may from
time to time request, to assist the Fund in obtaining from
year to year favorable opinions from the Fund's
independent accountants with respect to its activities
hereunder in connection with the preparation of the Fund's
Form N-1A, and Form N-SAR or other periodic reports to the
Securities
34
and Exchange Commission and with respect to any other
requirements of such Commission; provided, that the books
and records of the Fund shall be audited outside of the
United States.
11. Reports to Fund by Independent Public Accountants. The
Custodian shall provide the Fund, at such times as the
Fund may reasonably require, with reports by independent
public accountants on the accounting system, internal
accounting control and procedures for safeguarding
securities, futures contracts and options on futures
contracts, including securities deposited and/or
maintained in a Securities System, relating to the
services provided by the Custodian under this Contract;
such reports, shall be of sufficient scope and in
sufficient detail, as may reasonably be
required by the Fund to provide reasonable assurance that
any material inadequacies would be disclosed by such
examination, and, if there are no such inadequacies, the
reports shall so state.
12. Compensation of Custodian. The Custodian shall be entitled
to reasonable compensation for its services and expenses
as Custodian, as agreed upon from time to time between
the Fund and the Custodian.
13. Responsibility of Custodian. So long as and to the extent
that it is in the exercise of reasonable care, the
Custodian shall not be responsible for the title,
validity or genuineness of any property or evidence
of title thereto
35
received by it or delivered by it
pursuant to this Contract and shall be held harmless in
acting upon any notice, request, consent, certificate or
other instrument reasonably believed by it to be genuine
and to be signed by the proper party or parties, including
any futures commission merchant acting pursuant to the
terms of a three-party futures or options agreement. The
Custodian shall be held to the exercise of reasonable care
in carrying out the provisions of this Contract, but shall
be kept indemnified by and shall be without liability to
the Fund for any action taken or omitted by it in good
faith without negligence. It shall be entitled to rely on
and may act upon advice of counsel (who may be counsel for
the Fund) on all matters, and shall be without liability
for any action reasonably taken or omitted pursuant to
such advice.
The Custodian shall be liable for the acts or omissions of a
foreign banking institution appointed pursuant to the provisions
of Article 3 to the same extent as set forth in Article 1 hereof
with respect to sub-custodians located in the United States
(except as specifically provided in Article 3.9) and, regardless
of whether assets are maintained in the custody of a foreign
banking institution, a foreign securities depository or a branch
of a U.S. bank as contemplated by paragraph 3.12 hereof, the
Custodian shall not be liable for any loss, damage, cost, expense,
36
liability or claim resulting from, or caused by, the direction of
or authorization by the Fund to maintain custody or any securities
or cash of the Fund in a foreign country including, but not
limited to, losses resulting from nationalization, expropriation,
currency restrictions, or acts of war or terrorism. If the Fund
requires the Custodian to take any action with respect to
securities, which action involves the payment of money or which
action may, in the opinion of the Custodian, result in the
Custodian or its nominee assigned to the Fund or the Fund being
liable for the payment of money or incurring liability of some
other form, the Fund, as a prerequisite to requiring the Custodian
to take such action, shall provide indemnity to the Custodian in
an amount and form satisfactory to it.
If the Fund requires the Custodian, its affiliates, subsidiaries
or agents, to advance cash or securities for any purpose
(including but not limited to securities settlements, foreign
exchange contracts and assumed settlement) for the benefit of the
Fund including the purchase or sale of foreign exchange or of
contracts for foreign exchange or in the event that the Custodian
or its nominee shall incur or be assessed any taxes, charges,
expenses, assessments, claims or liabilities in connection with
the performance of this Contract, except such as may arise from
its or its nominee's own negligent action,
37
negligent failure to
act or willful misconduct, any property at any time held for the
account of the Fund shall be security therefor and should the Fund
fail to repay the Custodian promptly, the Custodian shall be
entitled to utilize available cash and to dispose of the Fund's
assets to the extent necessary to obtain reimbursement.
14. Effective Period, Termination and Amendment. This Contract shall
become effective as of its execution, shall continue in full force
and effect until terminated as hereinafter provided, may be
amended at any time by mutual agreement of the parties hereto and
may be terminated by either party by an instrument in writing
delivered or mailed, postage prepaid to the other party, such
termination to take effect
not sooner than thirty (30) days after the date of such delivery
or mailing; provided, however that the Custodian shall not with
respect to the Fund act under Section 2.10 hereof in the absence
of receipt of an initial certificate of the Secretary or an
Assistant Secretary that the Board of Trustees of the Fund has
approved the initial use of a particular Securities System by such
Fund and the receipt of an annual certificate of the Secretary or
an Assistant Secretary that the Board of Trustees has reviewed the
use by such Fund of such Securities System, as required in each
case by Rule 17f-4 under the Investment Company Act of 1940, as
amended and that the Custodian shall not with
38
respect to a Fund
act under Section 2.10A hereof in the absence of receipt of an
initial certificate of the Secretary or an Assistant Secretary
that the Board of Trustees has approved the initial use of the
Direct Paper System by such Fund and the receipt of an annual
certificate of the Secretary or an Assistant Secretary that the
Board of Trustees has reviewed the use by such Fund of the Direct
Paper System; provided further, however, that the Fund shall not
amend or terminate this Contract in contravention of any
applicable federal or state regulations, or any provision of the
Declaration of Trust, and further provided, that the Fund may at
any time by action of its Board of Trustees (i) substitute another
bank or trust company for the Custodian by giving notice as
described above to the Custodian, or (ii) immediately terminate
this Contract in the event of the appointment of a conservator or
receiver for the Custodian by the Comptroller of the Currency or
upon the happening of a like event at the direction of an
appropriate regulatory agency or court of competent jurisdiction.
Upon termination of the Contract, the Fund shall pay to the
Custodian such compensation as may be due as of the date of such
termination and shall likewise reimburse the Custodian for its
costs, expenses and disbursements.
15. Successor Custodian. If a successor custodian for the Fund shall
be appointed by the Board of Trustees of the Fund,
39
the Custodian
shall, upon termination, deliver to such successor custodian at
the office of the Custodian, duly endorsed and in the form for
transfer, all securities of the Fund then held by it hereunder and
shall transfer to an account of the successor custodian all of the
securities of the Fund held in a Securities System.
If no such successor custodian shall be appointed, the Custodian
shall, in like manner, upon receipt of a certified copy of a vote
of the Board of Trustees of the Fund, deliver at the office of
the Custodian and transfer such securities, funds and other
properties in accordance with such vote.
In the event that no written order designating a successor
custodian or certified copy of a vote of the
Board of Trustees shall have been delivered to the Custodian on or
before the date when such termination shall become effective, then
the Custodian shall have the right to deliver to a bank or trust
company, which is a "bank" as defined in the Investment Company
Act of 1940, doing business in Boston, Massachusetts, of its own
selection, having an aggregate capital, surplus, and undivided
profits, as shown by its last published report, of not less than
$50,000,000, all securities, funds and other properties held by
the Custodian on behalf of the Fund and all instruments held by
the Custodian relative thereto and all other property held by it
under this Contract on behalf
40
of the Fund and to transfer to an
account of such successor custodian all of the securities of the
Fund held in any Securities System. Thereafter, such bank or trust
company shall be the successor of the Custodian under this
Contract.
In the event that securities, funds and other properties
remain in the possession of the Custodian after the date of
termination hereof owing to failure of the Fund to procure the
certified copy of the vote referred to or of the Board of Trustees
to appoint a successor custodian, the Custodian shall be entitled
to fair compensation for its services during such period as the
Custodian retains possession of such securities, funds and other
properties and the provisions of this Contract relating to the
duties and obligations of the Custodian shall remain in full
force and effect.
16. Interpretive and Additional Provisions. In connection with the
operation of this Contract, the Custodian and the Fund, may from
time to time agree on such provisions interpretive of or in
addition to the provisions of this Contract as may in their joint
opinion be consistent with the general tenor of this Contract.
Any such interpretive or additional provisions shall be in a
writing signed by both parties and shall be annexed hereto,
provided that no such interpretive or additional provisions shall
contravene any applicable federal or state regulations or any
provision of
41
the Declaration of Trust of the Fund. No interpretive
or additional provisions made as provided in the preceding
sentence shall be deemed to be an amendment of this Contract.
17. Massachusetts Law to Apply. This Contract shall be construed
and the provisions thereof interpreted under and in accordance
with laws of The Commonwealth of Massachusetts.
18. Prior Contracts. This Contract supersedes and terminates, as of
the date hereof, all prior contracts between the Fund and the
Custodian relating to the custody of the Fund's assets.
19. Shareholder Communications Election. Securities and Exchange
Commission Rule 14b - 2 requires banks which hold
securities for the account of customers to respond to requests by
issuers of securities for the names, addresses and holdings of
beneficial owners of securities of that issuer held by the bank
unless the beneficial owner has expressly objected to disclosure
of this information. In order to comply with the rule, the
Custodian need~ the Fund to indicate whether it authorizes the
Custodian to provide the Fund's name, address, and share position
to requesting companies whose securities the Fund owns. If the
Fund tells the Custodian "no", the Custodian will not provide this
information to requesting companies. If the Fund tells the
Custodian "yes" or does not check either "yes" or
42
"no" below, the
Custodian is required by the rule to treat the Fund as consenting
to disclosure of this information for all securities owned by the
Fund or any funds or accounts established by the Fund. For the
Fund's protection, the Rule prohibits the requesting company from
using the Fund's name and address for any purpose other than
corporate communications. Please indicate below whether the Fund
consents or objects by checking one of the alternatives below.
YES [ ] The Custodian is authorized to release the Fund's name, address,
and share positions.
NO [X] The Custodian is not authorized to release the Fund's name,
address, and share positions.
20. Limitation of Liability
The references herein to the Trustees of the Fund are to the
Trustees of the Fund as trustees and not individually or
personally. The obligations of the Fund entered into in the name
of or on behalf of the Fund by any of the Trustees are not made
individually but in their capacity as trustees and are not binding
on any of the trustees personally. All persons dealing with the
Fund must look solely to the assets of the Fund for the
enforcement of any claims against the Fund.
43
IN WITNESS WHEREOF, each of the parties has caused this instrument to
be executed in its name and behalf by its duly authorized representative and
its seal to be hereunder affixed as of the 24th day of September, 1993.
THE NON-U.S. FIXED INCOME PORTFOLIO
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Assistant Treasurer
ATTEST
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
STATE STREET BANK AND TRUST COMPANY
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Executive Vice President
ATTEST
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
44
AMENDMENT TO CUSTODIAN CONTRACT
Agreement made by and between State Street Bank and Trust Company (the
"Custodian") and The Non-U.S. Fixed Income Portfolio (the "Fund").
WHEREAS, the Custodian and the Fund are parties to a custodian contract
dated September 24, 1993 (the "Custodian Contract") governing the terms and
conditions under which the Custodian maintains custody of the securities and
other assets of the Fund; and
WHEREAS, the Custodian and the Fund desire to amend the terms and
conditions under which the Custodian maintains the Fund's securities and other
non-cash property in the custody of certain foreign sub-custodians in conformity
with the requirements of Rule 17f-5 under the Investment Company Act of 1940, as
amended;
NOW THEREFORE, in consideration of the premises and covenants contained
herein, the Custodian and the Fund hereby amend the Custodian Contract by the
addition of the following terms and Provisions:
1. Notwithstanding any provisions to the contrary set forth in the
Custodian Contract, the Custodian may hold securities and other non-cash
property for all of its customers, including the Fund, with a foreign
sub-custodian in a single account that is identified as belonging to the
Custodian for the benefit of its customers, provided however, that (i) the
records of the Custodian with respect to securities and other non-cash property
of the Fund which are maintained in such account shall identify by book-entry
those securities and other non-cash property belonging to the Fund and (ii) the
Custodian shall require that securities and other non-cash property so held by
the foreign sub- custodian be held separately from any assets of the foreign
sub-custodian or of others.
2. Except as specifically superseded or modified herein, the terms and
provisions of the Custodian Contract shall continue to apply with full force and
effect.
IN WITNESS WHEREOF, each of the parties has caused this instrument to be
executed as a sealed instrument in its name and behalf by its duly authorized
representative this 28th day of February, 1996.
THE NON-U.S. FIXED INCOME PORTFOLIO
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Secretary
STATE STREET BANK AND TRUST COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
AMENDMENT TO CUSTODIAN CONTRACT
Agreement made by and between State Street Bank and Trust Company (the
"Custodian") and the funds listed on Exhibit A hereto (each, a "Fund")
WHEREAS, the Custodian and the Fund are parties to a custodian contract
dated and, as applicable amended, as of the date set forth on Exhibit A (each,
the "Custodian Contract");
WHEREAS, the Custodian and the Fund desire to amend the terms and
conditions Custodian Contract pursuant to which the custodian provides
services to the Fund;
NOW, THEREFORE, in consideration of the promises and covenants contained
herein, the Custodian and the Fund hereby agree as follows:
1. The existing Section 3.13 of the Custodian Contract shall be amended and
restated in its entirety to read as follows:
3.13 Tax Law.
(a) United States Taxes. The Custodian shall have no responsibility or
liability for any obligations now or hereafter imposed. On the
Fund or the Custodian as custodian of the Fund by the tax law of
the United States of America or any state or political subdivision
[t]hereof. The Custodian will be responsible for informing the
Fund of the income received by the Fund which is United States
source income and which is not United States source income.
(b) Claiming for Exemption or Refund under the Tax Laws of Non-United
States Jurisdictions. The sole responsibility of the Custodian
with regard to the tax laws of non-United States jurisdictions
shall be to identify the income of the Fund which has been subject
to withholding and other tax assessments or other governmental
charges by such jurisdictions and the amount thereof and to use
reasonable efforts to assist the Fund or its investors with
respect to any claim for exemption or refund of such charges that
can be made on behalf of the Fund or its investors.
2. The existing Article 8 of the Custodian Contract shall be amended and
restated in its entirety to read as follows:
8. Duties of Custodian with Respect to the Books of Account and
Calculation of Net Income. The Custodian shall keep the books of
account of the Fund and shall perform the following duties as
described
in Part A of its Registration Statement under the 1940 Act and in
accordance with written procedures as may be agreed upon by the
Fund and the Custodian from time to time:
(a) record general ledger entries;
(b) calculate daily net income;
(c) reconcile activity to the trial balance;
(d) calculate book capital account balances;
(e) calculate and provide to the Fund the daily net asset
value of the Fund and the SEC yield of the Fund and
the allocation of its various components to investors
of the Fund;
(f) prepare capital allocation reports in accordance with
Regulation 1.704-3(e)(3) (special aggregation rule for
securities partnerships) under the U.S. Internal
Revenue Code, based upon tax adjustments supplied by
the Fund; and
(g) prepare account balances.
The Custodian shall advise the Fund daily of the total amounts of
such net income, including the categorization of such net income
by source. The calculation of the Fund's net income and its
components shall include, but may not be limited to, accounting
for purchases and sales of portfolio securities, calculation of
realized and unrealized gains and losses, accruals of income on
portfolio investments, Portfolio level expense accruals and
calculations of market value of portfolio securities. All
accounting functions to be performed by the Custodian hereunder
shall be performed outside the United States.
3. Except as specifically superseded or modified herein, the terms and
provisions of the Custodian contract shall continue to apply with full force
and effect.
IN WITNESS WHEREOF, each of the parties has caused this amendment to be
executed as a sealed instrument in its name and behalf by its duly authorized
representative as of this first day of July, 1996.
STATE STREET BANK AND TRUST COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
EACH OF THE PORTFOLIOS OF THE
FUNDS LISTED ON EXHIBIT A
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
W:\▇▇▇▇▇\offshore.96\jpm-am2.mto
Exhibit A
Master Funds
advised by ▇.▇. ▇▇▇▇▇▇
The Money Market Portfolio
The Short Term Bond Portfolio
The U.S. Fixed Income Portfolio
The Selected U.S. Equity Portfolio
The U.S. Small Company Portfolio
The Non-U.S. Equity Portfolio
The Diversified Portfolio
The Non-U.S. Fixed Income Portfolio
The Emerging Markets Equity Portfolio
The Asia Growth Portfolio, a series of The Series Portfolio
The Japan Equity Portfolio, a series of The Series Portfolio
The European Equity Portfolio, a series of The Series Portfolio
INTERPRETATIVE PROVISIONS REGARDING CUSTODIAN CONTRACT
Agreement made by and between State Street Bank and Trust Company (the
"Custodian") and the funds listed on Exhibit A hereto (each, a "Fund" and
collectively, the "Funds")[.]
The Custodian and the Funds are parties to custodian contracts dated
and, as applicable amended, as of the dates set forth on Exhibit A (each, the
"Custodian Contract"). As contemplated by Article 16 of the Custodian
Contract, the Custodian and each Fund desire to agree upon provisions
interpretative of the provisions of the Custodian Contract. ACCORDINGLY, the
Custodian and the Fund agree to the following provisions interpretative of the
provisions of the Custodian Contract:
1. Section 2.9 of the Custodian Contract provides that the Custodian may
appoint an affiliate of the Custodian located outside the United States to
perform such of its duties hereunder as are required to be performed outside
the United States. The Custodian and the Fund acknowledge that the Custodian
has appointed its indirect wholly owned subsidiary State Street Cayman Trust
Company, Limited to perform certain of its duties under Article 8 of the
Custodian Contract and that State Street Cayman Trust Company, Limited may
further appoint one or more other affiliates of the Custodian located outside
the United States to perform certain of such duties.
2. The Custodian and the Fund shall adopt written procedures as shall be
agreed upon from time to time regarding the books of account, allocations for
book and tax purposes and calculation of net income in accordance with
Article 8 of the Custodian Contract.
This Agreement shall not supersede or amend the terms of the Custodian
Contract which shall continue to apply with full force and effect.
Each of the parties has caused this agreement to be executed in its name
and behalf by its duly authorized representative as of this first day of July,
1996.
STATE STREET BANK AND TRUST
COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
EACH OF THE FUNDS LISTED ON
EXHIBIT A
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Exhibit A
Master Funds
advised by ▇.▇. ▇▇▇▇▇▇
The Money Market Portfolio
The Short Term Bond Portfolio
The U.S. Fixed Income Portfolio
The Selected U.S. Equity Portfolio
The U.S. Small Company Portfolio
The Non-U.S. Equity Portfolio
The Diversified Portfolio
The Non-U.S. Fixed Income Portfolio
The Emerging Markets Equity Portfolio
The Asia Growth Portfolio, a series of The Series Portfolio
The Japan Equity Portfolio, a series of The Series Portfolio
The European Equity Portfolio, a series of The Series Portfolio
Schedule A
17f-5 Approval
The Board of Trustees of The Non-U.S. Fixed Income Portfolio has approved
certain foreign banking institutions and foreign securities depositories within
State Street's Global Custody Network for use as subcustodians for the Fund's
securities, cash and cash equivalents held outside of the United States. Board
approval is as indicated by the Fund's Authorized Officer:
Fund
Officer
Initials Country Subcustodian Central Depository
/s/ LJM State Street's entire Global Custody Network listed below
________ Argentina Citibank, N.A. Caja de Valores S.A.
________ Australia Westpac Banking Austraclear Limited;
Corporation
Reserve Bank Information
and Transfer System (RITS)
________ Austria GiroCredit Bank Oesterreichische
Aktiengesellschaft Kontrollbank AG
der Sparkassen (Wertpapiersammelbank
Division)
________ Bangladesh Standard Chartered Bank None
________ Belgium Generale Bank Caisse Interprofessionnelle
de Depots et de Virements
de Titres S.A. (CIK);
Banque Nationale de
Belgique
________ Botswana Barclays Bank of Botswana None
Limited
________ Brazil Citibank, N. A. Bolsa de Valores de Sao
Paulo (Bovespa);
Banco Central do Brasil,
Systema Especial de
Liquidacao e Custodia
(SELIC)
________ Canada Canada Trustco Mortgage The Canadian Depository
Company for Securities Limited
(CDS)
________ Chile Citibank, N.A. None
[logo] State Street [registered trademark]
Fund
Officer
Initials Country Subcustodian Central Depository
________ People's The Hongkong and Shanghai Securities Central
Republic Shanghai Banking Clearing and Registration
of China Corporation Limited, Corporation (SSCCRC);
Shanghai and
Shenzhen branches Shenzhen Securities Central
Clearing Co., Ltd. (SSCC)
________ Colombia Cititrust Colombia S.A. None
Sociedad
Fiduciaria
________ Cyprus Barclays Bank PLC None
Cyprus Offshore Banking
Unit
________ Czech Ceskoslovenska Obchodni Stredisko cennych
Republic Banka A.S. papiru(SCP);
Czech National Bank (CNB)
________ Denmark Den Danske Bank Vaerdipapircentralen - The
Danish Securities Center
(VP)
________ Ecuador Citibank, N.A. None
________ Egypt National Bank of Egypt None
________ Finland ▇▇▇▇▇▇ Bank Limited The Central Share Register
of Finland
________ France Banque Paribas Societe
Interprofessionnelle
pour la Compensation des
Valeurs Mobilieres
(SICOVAM);
Banque de France,
Saturne System
________ Germany Dresdner Bank AG The Deutscher Kassenverein
AG
________ Ghana Barclays Bank of Ghana None
Limited
________ Greece National Bank of Greece The Central Securities
S.A. Depository (Apothetirion
Titlon A.E.)
[logo] State Street [registered trademark]
Fund
Officer
Initials Country Subcustodian Central Depository
________ Hong Kong Standard Chartered Bank The Central Clearing and
Settlement System (CCASS)
________ Hungary Citibank Budapest Rt. The Central Depository and
Clearing House (Budapest)
Ltd. (KELER Ltd.)
________ India Deutsche Bank AG None
The Hongkong and None
Shanghai Banking
Corporation Limited
________ Indonesia Standard Chartered Bank None
________ Ireland Bank of Ireland None;
The Central Bank of
Ireland, The Gilt
Settlement Office (GSO)
________ Israel Bank Hapoalim B.M. The Clearing House of the
Tel Aviv Stock Exchange
________ Italy ▇▇▇▇▇▇ Guaranty Trust Monte Titoli S.p.A.;
Company
(Present Subcustodian) Banca d'Italia
________ Banque Paribas Monte Titoli S.p.A.;
(Future Subcustodian)
Banca d'Italia
________ Ivory Societe Generale de None
Coast Banques en Cote d'Ivoire
________ Japan The Daiwa Bank, Limited Japan Securities Depository
Center (JASDEC);
Bank of Japan Net System
________ The Fuji Bank, Limited Japan Securities Depository
Center (JASDEC);
Bank of Japan Net System
________ The Sumitomo Trust & Japan Securities Depository
Banking Co., Ltd. Center (JASDEC);
Bank of Japan Net System
[logo] State Street [registered trademark]
Fund
Officer
Initials Country Subcustodian Central Depository
________ Jordan The British Bank of the None
Middle East
________ Kenya Barclays Bank of Kenya None
Limited
________ Republic SEOULBANK Korea Securities Depository
of Korea (KSD)
________ Malaysia Standard Chartered Bank Malaysian Central
Malaysia Berhad Depository Sdn.
Bhd. (MCD)
________ Mauritius The Hongkong and None
Shanghai Banking
Corporation Limited
________ Mexico Citibank Mexico, S.A. S.D. INDEVAL, S.A. de C.V.
(Instituto para el Deposito
de Valores);
Banco de Mexico
________ Morocco Banque Commerciale du None
Maroc
________ Netherlands MeesPierson N.V. Nederlands Centraal
Instituut voor
Giraal Effectenverkeer B.V.
(NECIGEF;)
________ New Zealand ANZ Banking Group New Zealand Central
(New Zealand) Limited Securities Depository
Limited (NZCSD)
________ Norway Christiania Bank og Verdipapirsentralen - The
Kreditkasse Norwegian Registry of
Securities (VPS)
________ Pakistan Deutsche Bank AG None
________ Peru Citibank, N.A. Caja de Valores (CAVAL)
________ Philippines Standard Chartered Bank None
________ Poland Citibank Poland S.A. The National Depository of
Securities (Krajowy Depozyt
Papierow Wartosciowych);
National Bank of Poland
[logo] State Street [registered trademark]
Fund
Officer
Initials Country Subcustodian Central Depository
________ Portugal Banco Comercial Central de Valores
Portugues Mobiliarios (Central)
________ Russia Credit Suisse, Zurich None
via Credit Suisse
(Moscow) Limited
________ Singapore The Development Bank The Central Depository
of Singapore Ltd. (Pte) Limited (CDP)
________ Slovak Ceskoslovenska Obchodna Stredisko Cennych Papierov
Republic Banka A.S. (SCP);
National Bank of Slovakia
________ South Standard Bank of South The Central Depository
Africa Africa Limited Limited
________ Spain Banco Santander, S. A. Servicio de Compensacion y
Liquidacion de Valores,
S.A. (SCLV);
Banco de Espana,
Anotaciones en Cuenta
________ Sri Lanka The Hongkong and Central Depository System
Shanghai Banking (Pvt) Limited
Corporation Limited
________ Swaziland Barclays Bank of None
Swaziland Limited
________ Sweden Skandinaviska Enskilda Vardepapperscentralen VPC
▇▇▇▇▇▇ ▇▇ - The Swedish Central
Securities Depository
________ Switzerland Union Bank of Schweizerische Effekten -
Switzerland Giro AG (SEGA)
________ Taiwan - Central Trust of China The Taiwan Securities
R.O.C. Central Depository
or Company, Ltd. (TSCD)
_______________________
(Client Designated
Subcustodian)
________ Thailand Standard Chartered Bank Thailand Securities
Depository Company Limited
(TSD)
[logo] State Street [registered trademark]
Fund
Officer
Initials Country Subcustodian Central Depository
________ Turkey Citibank, ▇.▇. ▇▇▇▇▇ ve Saklama Bankasi
A.S.(TAKASBANK);
Central Bank of Turkey
________ United State Street Bank None;
Kingdom and Trust Company
The Bank of England,
The Central Gilts Office
CGO);
The Central Moneymarkets
Office (CMO)
________ Uruguay Citibank, N.A. None
________ Venezuela Citibank, N.A. None
________ Zambia Barclays Bank of Zambia Lusaka Central Depository
Limited (LCD)
________ Zimbabwe Barclays Bank of None
Zimbabwe Limited
________ Euroclear (The Euroclear System)/State Street London Limited[)]
________ Cedel (Cedel Bank, societe anonyme)/State Street London Limited[)]
Certified by:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ NOV - 4 1996
Fund's Authorized Officer Date
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Assistant Secretary
Assistant Treasurer
[logo] State Street [registered trademark]
