EXHIBIT 9
CUSTODIAN AGREEMENT
THIS AGREEMENT, dated as of ___________, 2003, between JANUS ADVISER
(the FUND), an open-end management investment company organized under the laws
of the State of Delaware as a statutory trust and registered with the U.S.
Securities and Exchange Commission under the 1940 Act on behalf of each series
thereof listed on Appendix A hereto, as amended from time to time hereafter
(each a SERIES), and BROWN BROTHERS HARRIMAN & CO., a limited partnership formed
under the laws of the State of New York (BBH&CO. or the CUSTODIAN). Capitalized
terms used herein shall have the meanings accorded to them in Section 13 of this
Agreement.
WITNESSETH:
WHEREAS, the Fund wishes to employ BBH&Co. to act as custodian for the
Fund and to provide related services, all as provided herein, and BBH&Co. is
willing to accept such employment, subject to the terms and conditions herein
set forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the Fund and BBH&Co. hereby agree, as follows:
1. APPOINTMENT OF CUSTODIAN. The Fund hereby appoints BBH&Co. as the Fund's
custodian, and BBH&Co. hereby accepts such appointment. All Investments of the
Fund delivered to the Custodian or its agents or Subcustodians shall be dealt
with as provided in this Agreement. The duties of the Custodian with respect to
the Fund's Investments shall be only as set forth expressly in this Agreement
which duties are generally comprised of safekeeping and various administrative
duties that will be performed in accordance with Instructions and as reasonably
required to effect Instructions.
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2. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE FUND. The Fund hereby
represents, warrants and covenants each of the following:
2.1 This Agreement has been, and at the time of delivery of
each Instruction such Instruction will have been, duly authorized,
executed and delivered by the Fund. This Agreement does not violate any
Applicable Law or conflict with or constitute a default under the
Fund's prospectus, trust instrument, bylaws or any other agreement,
judgment, order or decree to which the Fund is a party or by which it
is bound.
2.2 The Fund shall safeguard and shall solely be responsible for
the safekeeping of any testkeys, identification codes, passwords, other
security devices or statements of account with which the Custodian
provides it. In furtherance and not limitation of the foregoing, in the
event the Fund utilizes any on-line service offered by the Custodian,
the Fund and the Custodian shall be fully responsible for the security
of each party's connecting terminal, access thereto and the proper and
authorized use thereof and the initiation and application of continuing
effective safeguards in respect thereof. Additionally, if the Fund uses
any on-line or similar communications service made available by the
Custodian, the Fund shall be solely responsible for ensuring the
security of its access to the service and for the use of the service,
and shall only attempt to access the service and the Custodian's
computer systems as directed by the Custodian. If the Custodian
provides any computer software to the Fund relating to the services
described in this Agreement, the Fund will only use the software for
the purposes for which the Custodian provided the software to the Fund,
and will abide by the license agreement accompanying the software and
any other security policies which the Custodian provides to the Fund.
3. REPRESENTATION AND WARRANTY OF BBH&CO. BBH&Co. hereby represents and warrants
that this Agreement has been duly authorized, executed and delivered by BBH&Co.
and does not and will not violate any Applicable Law or conflict with or
constitute a default under BBH&Co.'s limited partnership agreement or any
agreement, instrument, judgment, order or decree to which BBH&Co. is a party or
by which it is bound.
4. INSTRUCTIONS. Unless otherwise explicitly indicated herein, the Custodian
shall perform its duties pursuant to Instructions. As used herein, the term
INSTRUCTION shall mean a directive initiated by the Fund, acting directly or
through its board of trustees, officers or other Authorized Persons, which
directive shall conform to the requirements of this Section 4.
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4.1 AUTHORIZED PERSONS. For purposes hereof, an AUTHORIZED PERSON shall
be a person or entity authorized to give Instructions for or on behalf of the
Fund by written notices to the Custodian or otherwise in accordance with
procedures delivered to and acknowledged by the Custodian, including without
limitation the Fund's Investment Adviser or Foreign Custody Manager. The
Custodian may treat any Authorized Person as having full authority of the Fund
to issue Instructions hereunder unless the notice of authorization contains
explicit limitations as to said authority. The Custodian shall be entitled to
rely upon the authority of Authorized Persons until it receives appropriate
written notice from the Fund to the contrary.
4.2 FORM OF INSTRUCTION. Each Instruction shall be transmitted by such
secured or authenticated electro-mechanical means as the Custodian shall make
available to the Fund from time to time unless the Fund shall elect to transmit
such Instruction in accordance with Subsections 4.2.1 through 4.2.3 of this
Section.
4.2.1 FUND DESIGNATED SECURED-TRANSMISSION METHOD.
Instructions may be transmitted through a secured or tested
electro-mechanical means identified by the Fund or by an Authorized
Person entitled to give Instruction and acknowledged and accepted by
the Custodian; it being understood that such acknowledgment shall
authorize the Custodian to receive and process such means of delivery
but shall not represent a judgment by the Custodian as to the
reasonableness or security of the method determined by the Authorized
Person.
4.2.2 WRITTEN INSTRUCTIONS. Instructions may be transmitted in
a writing that bears the manual signature of Authorized Persons.
4.2.3 OTHER FORMS OF INSTRUCTION. Instructions may also be
transmitted by another means determined by the Fund or Authorized
Persons and acknowledged and accepted by the Custodian (subject to the
same limits as to acknowledgements as is contained in Subsection 4.2.1,
above) including Instructions given orally or by SWIFT, telex or
telefax (whether tested or untested).
When an Instruction is given by means established under Subsections
4.2.1 through 4.2.3 above, it shall be the responsibility of the Custodian to
use reasonable care to adhere to any security or other procedures established in
writing between the Custodian and the Authorized Person with respect to such
means of Instruction, but such Authorized Person shall be solely responsible for
determining that the particular means chosen is reasonable under the
circumstances. Oral Instructions shall be binding upon the Custodian only if and
when the Custodian takes action with respect thereto. With respect to telefax
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instructions, the parties agree and acknowledge that receipt of legible
instructions cannot be assured, that the Custodian cannot verify that authorized
signatures on telefax instructions are original or properly affixed, and that
the Custodian shall not be liable for losses or expenses incurred through
actions taken in reliance on inaccurately stated, illegible or unauthorized
telefax instructions. The provisions of Section 4A of the Uniform Commercial
Code shall apply to Funds Transfers performed in accordance with Instructions.
The Funds Transfer Services Schedule and the Electronic and Online Services
Schedule to this Agreement shall each comprise a designation of form of a means
of delivering Instructions for purposes of this Section 4.2.
4.3 COMPLETENESS AND CONTENTS OF INSTRUCTIONS. The Authorized Person
shall be responsible for assuring the adequacy and accuracy of Instructions.
Particularly, upon any acquisition or disposition or other dealing in the Fund's
Investments and upon any delivery and transfer of any Investment or moneys, the
person initiating such Instruction shall give the Custodian an Instruction with
appropriate detail, including, without limitation:
4.3.1 The transaction date and the date and location of
settlement;
4.3.2 The specification of the type of transaction;
4.3.3 A description of the Investments or moneys in question,
including, as appropriate, quantity, price per unit, amount of money to
be received or delivered and currency information. Where an Instruction
is communicated by electronic means, or otherwise where an Instruction
contains an identifying number such as a CUSIP, SEDOL or ISIN number,
the Custodian shall be entitled to rely on such number as controlling
notwithstanding any inconsistency contained in such Instruction,
particularly with respect to Investment description; and
4.3.4 The name of the broker or similar entity concerned with
execution of the transaction.
If the Custodian shall determine that an Instruction is either unclear
or incomplete, the Custodian may give prompt notice of such determination to the
Fund, and the Fund shall thereupon amend or otherwise reform such Instruction.
In such event, the Custodian shall have no obligation to take any
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action in response to the Instruction initially delivered until the redelivery
of an amended or reformed Instruction
4.4 TIMELINESS OF INSTRUCTIONS. In giving an Instruction, the Fund
shall take into consideration delays which may occur due to the involvement of a
Subcustodian or agent, differences in time zones, and other factors particular
to a given market, exchange or issuer. When the Custodian and the Fund have
mutually agreed upon specific timing requirements or deadlines with respect to
particular classes of Instruction, or when an Instruction is received by the
Custodian at such a time that it could not reasonably be expected to have acted
on such instruction due to time zone differences or other factors beyond its
reasonable control, the execution of any Instruction received by the Custodian
after such deadline or at such time (including any modification or revocation of
a previous Instruction) shall be at the risk of the Fund.
5. SAFEKEEPING OF FUND ASSETS. The Custodian shall hold Investments delivered to
it or Subcustodians for the Fund in accordance with the provisions of this
Section 5. The Custodian shall not be responsible for (a) the safekeeping of
Investments not delivered or that are not caused to be issued to it or its
Subcustodians; or, (b) pre-existing faults or defects in Investments that are
delivered to the Custodian, or its Subcustodians. The Custodian is hereby
authorized to hold with itself or a Subcustodian, and to record in one or more
accounts, all Investments delivered to and accepted by the Custodian, any
Subcustodian or their respective agents pursuant to an Instruction or in
consequence of any corporate action. The Custodian shall hold Investments for
the account of the Fund and shall segregate Investments from assets belonging to
the Custodian and shall cause its Subcustodians to segregate Investments from
assets belonging to the Subcustodian in an account held for the Fund or in an
account maintained by the Subcustodian generally for non-proprietary assets of
the Custodian.
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5.1 USE OF SECURITIES DEPOSITORIES. The Custodian may deposit and
maintain Investments in any Securities Depository, either directly or through
one or more Subcustodians appointed by the Custodian. Investments held in a
Securities Depository shall be held (a) subject to the agreement, rules,
statement of terms and conditions or other document or conditions effective
between the Securities Depository and the Custodian or the Subcustodian, as the
case may be, and (b) in an account for the Fund or in bulk segregation in an
account maintained for the non-proprietary assets of the entity holding such
Investments in the Securities Depository. If market practice or the rules and
regulations of the Securities Depository prevent the Custodian, the Subcustodian
or (any agent of either) from holding its client assets in such a separate
account, the Custodian, the Subcustodian or other agent shall as appropriate
segregate such Investments for benefit of the Fund or for benefit of clients of
the Custodian generally on its own books.
5.2 CERTIFICATED ASSETS. Investments which are certificated may be held
in registered or bearer form: (a) in the Custodian's vault; (b) in the vault of
a Subcustodian or agent of the Custodian or a Subcustodian; or (c) in an account
maintained by the Custodian, Subcustodian or agent at a Securities Depository;
all in accordance with customary market practice in the jurisdiction in which
any Investments are held.
5.3 REGISTERED ASSETS. Investments which are registered may be
registered in the name of the Custodian, a Subcustodian, or in the name of the
Fund or a nominee for any of the foregoing, and may be held in any manner set
forth in Section 5.2 above with or without any identification of fiduciary
capacity in such registration.
5.4 BOOK ENTRY ASSETS. Investments which are represented by book-entry
may be so held in an account maintained by the Book-entry Agent on behalf of the
Custodian, a Subcustodian or another agent of the Custodian, or a Securities
Depository.
5.5 REPLACEMENT OF LOST INVESTMENTS. In the event of a loss of
Investments for which the Custodian is responsible under the terms of this
Agreement, the Custodian shall replace such Investment, or in the event that
such replacement cannot be effected, the Custodian shall, as soon as practicable
after the Custodian first becomes aware of such loss, credit to the Fund's
account an amount equal to the Market Value of the lost Investments determined
as of (i) the date on which the Custodian first becomes
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aware of such loss, or (ii) such other amount as shall be mutually agreed upon
by the parties as of the date for settlement. For the purposes of this Section
5.5, "Market Value" means the market value of such security (including in the
case of a debt security, the accrued interest on such security), as determined
by the Custodian using an independent and industry recognized source mutually
agreed upon by the Fund and the Custodian.
6. ADMINISTRATIVE DUTIES OF THE CUSTODIAN. The Custodian shall perform the
following administrative duties with respect to Investments of the Fund.
6.1 PURCHASE OF INVESTMENTS. Pursuant to Instruction, Investments
purchased for the account of the Fund shall be paid for (a) against delivery
thereof to the Custodian or a Subcustodian, as the case may be, either directly
or through a Clearing Corporation or a Securities Depository (in accordance with
the rules of such Securities Depository or such Clearing Corporation), or (b)
otherwise in accordance with an Instruction, Applicable Law, generally accepted
trade practices, or the terms of the instrument representing such Investment.
6.2 SALE OF INVESTMENTS. Pursuant to Instruction, Investments sold for
the account of the Fund shall be delivered (a) against payment therefor in cash,
by check or by bank wire transfer, (b) by credit to the account of the Custodian
or the applicable Subcustodian, as the case may be, with a Clearing Corporation
or a Securities Depository (in accordance with the rules of such Securities
Depository or such Clearing Corporation), or (c) otherwise in accordance with an
Instruction, Applicable Law, generally accepted trade practices, or the terms of
the instrument representing such Investment.
6.3 DELIVERY AND RECEIPT IN CONNECTION WITH BORROWINGS OF THE FUND OR
OTHER COLLATERAL AND MARGIN REQUIREMENTS. Pursuant to Instruction, the Custodian
may deliver or receive Investments or cash of the Fund in connection with
borrowings or loans by the Fund and other collateral and margin requirements.
6.4 FUTURES AND OPTIONS. If, pursuant to an Instruction, the Custodian
shall become a party to an agreement with the Fund and a futures commission
merchant regarding margin (TRI-PARTY
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AGREEMENT), the Custodian shall (a) receive and retain, to the extent the same
are provided to the Custodian, confirmations or other documents evidencing the
purchase or sale by the Fund of exchange-traded futures contracts and commodity
options, (b) when required by such Tri-Party Agreement, deposit and maintain in
an account opened pursuant to such Agreement (MARGIN ACCOUNT), segregated either
physically or by book-entry in a Securities Depository for the benefit of any
futures commission merchant, such Investments as the Fund shall have designated
as initial, maintenance or variation "margin" deposits or other collateral
intended to secure the Fund's performance of its obligations under the terms of
any exchange-traded futures contracts and commodity options; and (c) thereafter
pay, release or transfer Investments into or out of the margin account in
accordance with the provisions of such Agreement. Alternatively, the Custodian
may deliver Investments, in accordance with an Instruction, to a futures
commission merchant for purposes of margin requirements in accordance with Rule
17f-6 of the 1940 Act. The Custodian shall in no event be responsible for the
acts and omissions of any futures commission merchant to whom Investments are
delivered pursuant to this Section; for the sufficiency of Investments held in
any Margin Account; or, for the performance of any terms of any exchange-traded
futures contracts and commodity options.
6.5 CONTRACTUAL OBLIGATIONS AND SIMILAR INVESTMENTS. From time to time,
the Fund's Investments may include Investments that are not ownership interests
as may be represented by certificate (whether registered or bearer), by entry in
a Securities Depository or by book entry agent, registrar or similar agent for
recording ownership interests in the relevant Investment. If the Fund shall at
any time acquire such Investments, including without limitation deposit
obligations, loan participations, repurchase agreements and derivative
arrangements, the Custodian shall (a) receive and retain, to the extent the same
are provided to the Custodian, confirmations or other documents evidencing the
arrangement; and (b) perform on the Fund's account in accordance with the terms
of the applicable arrangement, but only to the extent directed to do so by
Instruction. The Custodian shall have no responsibility for agreements running
to the Fund as to which it is not a party other than to retain, to the extent
the same are provided to the Custodian, documents or copies of documents
evidencing the arrangement and, in accordance with Instruction, to include such
arrangements in reports made to the Fund.
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6.6 EXCHANGE OF SECURITIES. Unless otherwise directed by Instruction,
the Custodian shall: (a) exchange securities held for the account of the Fund
for other securities in connection with any reorganization, recapitalization,
conversion, split-up, change of par value of shares or similar event, and (b)
deposit any such securities in accordance with the terms of any reorganization
or protective plan.
6.7 SURRENDER OF SECURITIES. Unless otherwise directed by Instruction,
the Custodian may surrender securities: (a) in temporary form for definitive
securities; (b) for transfer into the name of an entity allowable under Section
5.3 above; and (c) for a different number of certificates or instruments
representing the same number of shares or the same principal amount of
indebtedness.
6.8 RIGHTS, WARRANTS, ETC. Pursuant to Instruction, the Custodian shall
(a) deliver warrants, puts, calls, rights or similar securities to the issuer or
trustee thereof, or to any agent of such issuer or trustee, for purposes of
exercising such rights or selling such securities, and (b) deposit securities in
response to any invitation for the tender thereof.
6.9 MANDATORY CORPORATE ACTIONS. Unless otherwise directed by
Instruction, the Custodian shall: (a) comply with the terms of all mandatory or
compulsory exchanges, calls, tenders, redemptions or similar rights of
securities ownership affecting securities held on the Fund's account and
promptly notify the Fund of such action; and (b) collect all stock dividends,
rights and other items of like nature with respect to such securities.
6.10 INCOME COLLECTION. Unless otherwise directed by Instruction, the
Custodian shall collect any amount due and payable to the Fund with respect to
Investments and promptly credit the amount collected to a Principal or Agency
Account; provided, however, that the Custodian shall not be responsible for: (a)
the collection of amounts due and payable with respect to Investments that are
in default; or (b) the collection of cash or share entitlements with respect to
Investments that are not registered in the name of the Custodian or its
Subcustodians. The Custodian is hereby authorized to endorse and deliver any
instrument required to be so endorsed and delivered to effect collection of any
amount due and payable to the Fund with respect to Investments.
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6.11 OWNERSHIP CERTIFICATES AND DISCLOSURE OF THE FUND'S INTEREST. The
Custodian is hereby authorized to execute on behalf of the Fund ownership
certificates, affidavits or other disclosure required under Applicable Law or
established market practice in connection with the receipt of income, capital
gains or other payments by the Fund with respect to Investments, or in
connection with the sale, purchase or ownership of Investments.
With respect to securities issued in the United States of America, the
Custodian [ ] may [x] may not release the identity of the Fund to an
issuer which requests such information pursuant to the Shareholder
Communications Act of 1985 for the specific purpose of direct
communications between such issuer and the Fund. IF NO BOX IS CHECKED,
THE CUSTODIAN SHALL RELEASE SUCH INFORMATION UNTIL IT RECEIVES CONTRARY
INSTRUCTIONS FROM THE FUND. With respect to securities issued outside
of the United States of America, information shall be released in
accordance with law or custom of the particular country in which such
security is located.
6.12 PROXY MATERIALS. The Custodian shall deliver, or cause to be
delivered, to the Fund proxy forms, notices of meeting, and any other notices or
announcements materially affecting or relating to Investments received by the
Custodian or any nominee. Unless authorized to do so by Instructions or proxy,
neither the Custodian nor any Subcustodian shall vote any Investments held for
the Fund pursuant to this Agreement.
6.13. TAXES. The Custodian shall, where applicable, assist the Fund in
the reclamation of taxes withheld on dividends and interest payments received by
the Fund. In the performance of its duties with respect to tax withholding and
reclamation, the Custodian shall be entitled to rely on the advice of counsel
and upon information and advice regarding the Fund's tax status that is received
from or on behalf of the Fund without duty of separate inquiry.
6.14 OTHER DEALINGS. The Custodian shall otherwise act as directed by
Instruction, including without limitation effecting the free payments of moneys
or the free delivery of securities, provided that such Instruction shall
indicate the purpose of such payment or delivery and that the Custodian shall
record the party to whom such payment or delivery is made.
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The Custodian shall attend to all nondiscretionary details in
connection with the sale or purchase or other administration of Investments,
except as otherwise directed by an Instruction, and may make payments to itself
or others for minor expenses of administering Investments under this Agreement;
provided that the Fund shall have the right to request an accounting with
respect to such expenses.
In fulfilling the duties set forth in Sections 6.6 through 6.10 above,
the Custodian shall provide to the Company all material information pertaining
to a corporate action which the Custodian actually receives; provided that the
Custodian shall not be responsible for the completeness or accuracy of such
information. Information relative to any pending corporate action made available
to the Company via any of the services described in the Electronic and Online
Services Schedule shall constitute the delivery of such information by the
Custodian hereunder. Any advance credit of cash or shares expected to be
received as a result of any corporate action shall be subject to actual
collection and may, when the Custodian deems collection unlikely, be reversed by
the Custodian.
The Custodian may at any time or times in its discretion appoint (and
may at any time remove) agents (other than Subcustodians) to carry out some or
all of the administrative provisions of this Agreement (AGENTS), provided,
however, that the appointment of such Agents shall not relieve the Custodian of
its administrative obligations under this Agreement.
7. CASH ACCOUNTS, DEPOSITS AND MONEY MOVEMENTS. Subject to the terms and
conditions set forth in this Section 7, the Fund hereby authorizes the Custodian
to open and maintain, with itself or with Subcustodians, cash accounts in United
States Dollars, in such other currencies as are the currencies of the countries
in which the Fund maintains Investments or in such other currencies as the Fund
shall from time to time request by Instruction.
7.1 TYPES OF CASH ACCOUNTS. Cash accounts opened on the books of the
Custodian (PRINCIPAL ACCOUNTS) shall be opened in the name of the Fund. Such
accounts collectively shall be a deposit
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obligation of the Custodian and shall be subject to the terms of this Section 7
and the general liability provisions contained in Section 9 hereof. Cash
accounts opened on the books of a Subcustodian may be opened in the name of the
Fund or the Custodian or in the name of the Custodian for its customers
generally (AGENCY ACCOUNTS). Such deposits shall be obligations of the
Subcustodian and shall be treated as an Investment of the Fund. Accordingly, the
Custodian shall be responsible for exercising reasonable care in the
administration of such accounts but shall not be liable for their repayment in
the event such Subcustodian, by reason of its bankruptcy, insolvency or
otherwise, fails to make repayment.
7.2 PAYMENTS AND CREDITS WITH RESPECT TO THE CASH ACCOUNTS. The
Custodian shall make payments from or deposits to any of said accounts in the
course of carrying out its administrative duties, including but not limited to
income collection with respect to the Fund's Investments, and otherwise in
accordance with Instructions. The Custodian and its Subcustodians shall be
required to credit amounts to the cash accounts only when moneys are actually
received in cleared funds in accordance with banking practice in the country and
currency of deposit. Any credit made to any Principal or Agency Account before
actual receipt of cleared funds shall be provisional and may be reversed by the
Custodian in the event such payment is not actually collected. Unless otherwise
specifically agreed in writing by the Custodian or any Subcustodian, all
deposits shall be payable only at the branch of the Custodian or Subcustodian
where the deposit is made or carried.
7.3 CURRENCY AND RELATED RISKS. The Fund bears risks of holding or
transacting in any currency. The Custodian shall not be liable for any loss or
damage arising from the applicability of any law or regulation now or hereafter
in effect, or from the occurrence of any event, which may delay or affect the
transferability, convertibility or availability of any currency in the country
(a) in which such Principal or Agency Accounts are maintained or (b) in which
such currency is issued, and in no event shall the Custodian be obligated to
make payment of a deposit denominated in a currency during the period during
which its transferability, convertibility or availability has been affected by
any such law, regulation or event. Without limiting the generality of the
foregoing, neither the Custodian nor any Subcustodian shall be required to repay
any deposit made at a foreign branch of either the Custodian or
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Subcustodian if such branch cannot repay the deposit due to a cause for which
the Custodian would not be responsible in accordance with the terms of Section 9
of this Agreement unless the Custodian or such Subcustodian expressly agrees in
writing to repay the deposit under such circumstances. All currency transactions
in any account opened pursuant to this Agreement are subject to exchange control
regulations of the United States and of the country where such currency is the
lawful currency or where the account is maintained. Any taxes, costs, charges or
fees imposed on the convertibility of a currency held by the Fund shall be for
the account of the Fund.
7.4 FOREIGN EXCHANGE TRANSACTIONS. The Custodian shall, subject to the
terms of this Section, settle foreign exchange transactions (including
contracts, futures, options and options on futures) on behalf and for the
account of the Fund with such currency brokers or banking institutions,
including Subcustodians, as the Fund may direct pursuant to Instructions. The
Custodian may act as principal in any foreign exchange transaction with the Fund
in accordance with Section 7.4.2 of this Agreement. The obligations of the
Custodian in respect of all foreign exchange transactions (whether or not the
Custodian shall act as principal in such transaction) shall be contingent on the
free, unencumbered transferability of the currency transacted on the actual
settlement date of the transaction.
7.4.1 THIRD PARTY FOREIGN EXCHANGE TRANSACTIONS. The
Custodian shall process foreign exchange transactions
(including without limitation contracts, futures, options, and
options on futures), where any third party acts as principal
counterparty to the Fund on the same basis it performs duties
as agent for the Fund with respect to any other of the Fund's
Investments. Accordingly the Custodian shall only be
responsible for delivering or receiving currency on behalf of
the Fund in respect of such contracts pursuant to
Instructions. The Custodian shall not be responsible for the
failure of any counterparty (including any Subcustodian) in
such agency transaction to perform its obligations thereunder.
The Custodian (a) shall transmit cash and Instructions to and
from the currency broker or banking institution with which a
foreign exchange contract or option has been executed pursuant
hereto, (b) may make free outgoing payments of cash in the
form of U.S. Dollars or foreign currency without receiving
confirmation of a foreign exchange contract or option or
confirmation that the countervalue currency completing the
foreign exchange contract has been delivered or received or
that the option has been delivered or received, and (c) shall
hold all confirmations, certificates and other documents and
agreements received by the Custodian and evidencing or
relating to such foreign exchange transactions in safekeeping.
The Fund accepts full responsibility for its use of
third-party foreign exchange dealers and for execution of said
foreign exchange contracts and options and understands that
the Fund shall be responsible for any and all costs and
interest charges which may be incurred by the Fund or the
Custodian as a result of the failure or delay of third parties
to deliver foreign exchange.
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7.4.2 FOREIGN EXCHANGE WITH THE CUSTODIAN AS
PRINCIPAL. The Custodian may undertake foreign exchange
transactions with the Fund as principal as the Custodian and
the Fund may agree from time to time. In such event, the
foreign exchange transaction will be performed in accordance
with the particular agreement of the parties, or in the event
a principal foreign exchange transaction is initiated by
Instruction in the absence of specific agreement, such
transaction will be performed in accordance with the usual
commercial terms of the Custodian.
7.5 DELAYS. If no event of Force Majeure shall have occurred and be
continuing and in the event that a delay shall have been caused by the
negligence or willful misconduct of the Custodian in carrying out an Instruction
to credit or transfer cash, the Custodian shall be liable to the Fund: (a) with
respect to Principal Accounts, for interest to be calculated at the rate
customarily paid on such deposit and currency by the Custodian on overnight
deposits at the time the delay occurs for the period from the day when the
transfer should have been effected until the day it is in fact effected; and,
(b) with respect to Agency Accounts, for interest to be calculated at the rate
customarily paid on such deposit and currency by the Subcustodian on overnight
deposits at the time the delay occurs for the period from the day when the
transfer should have been effected until the day it is in fact effected. The
Custodian shall not be liable for delays in carrying out such Instructions to
transfer cash which are not due to the Custodian's own negligence or willful
misconduct.
7.6 ADVANCES. If, for any reason in the conduct of its safekeeping
duties pursuant to Section 5 hereof or its administration of the Fund's assets
pursuant to Section 6 hereof, the Custodian or any Subcustodian advances monies
to facilitate settlement or otherwise for benefit of the Fund (whether or not
any Principal or Agency Account shall be overdrawn either during, or at the end
of, any Business Day), the Fund hereby does:
7.6.1 acknowledge that the Fund shall have no right
or title to any Investments purchased with such Advance save a
right to receive such Investments upon: (a) the debit of the
Principal or Agency Account; or, (b) if such debit would
produce an overdraft in such account, other reimbursement of
the associated Advance;
7.6.2 grant to the Custodian a security interest in
all Investments; and,
14
7.6.3 agree that the Custodian may secure the
resulting Advance by perfecting a security interest in all
Investments under Applicable Law. With respect to obligations
and liabilities that occur to each Series, such obligations
and liabilities shall apply only to the respective Series and
not to any other Series.
Neither the Custodian nor any Subcustodian shall be obligated to
advance monies to the Fund, and in the event that such Advance occurs, any
transaction giving rise to an Advance shall be for the account and risk of the
Fund and shall not be deemed to be a transaction undertaken by the Custodian for
its own account and risk. If such Advance shall have been made by a Subcustodian
or any other person, the Custodian may assign the security interest and any
other rights granted to the Custodian hereunder to such Subcustodian or other
person. If the Fund shall fail to repay when due the principal balance of an
Advance and accrued and unpaid interest thereon and after five (5) business days
notice to the Fund from the Custodian that such balance is due, the Custodian or
its assignee, as the case may be, shall be entitled to utilize the available
cash balance in any Agency or Principal Account and to dispose of any
Investments to the extent necessary to recover payment of all principal of, and
interest on, such Advance in full. The Custodian may assign any rights it has
hereunder to a Subcustodian or third party. Any security interest in Investments
taken hereunder shall be treated as financial assets credited to securities
accounts under Articles 8 and 9 of the Uniform Commercial Code (1997), as
amended from time to time. Accordingly, the Custodian shall have the rights and
benefits of a secured creditor that is a securities intermediary under such
Articles 8 and 9.
7.7 INTEGRATED ACCOUNT. For purposes hereof, deposits maintained in all
Principal Accounts (whether or not denominated in U.S. Dollars) shall
collectively constitute a single and indivisible current account with respect to
the Fund's obligations to the Custodian, or its assignee, and balances in such
Principal Accounts shall be available for satisfaction of the Fund's obligations
under this Section 7. The Custodian shall further have a right of offset against
the balances in any Agency Account maintained
15
hereunder to the extent that the aggregate of all Principal Accounts is
overdrawn; provided however, any balance offsets under this Section 7.7 shall be
applied so that such balance offsets shall apply only to each respective Series
and not to any other Series. The deposits maintained in all Principal Accounts
and any Agency Account shall belong to each respective Series and not to any
other Series.
8. SUBCUSTODIANS AND SECURITIES DEPOSITORIES. Subject to the provisions
hereinafter set forth in this Section 8, the Fund hereby authorizes the
Custodian to utilize Securities Depositories to act on behalf of the Fund and to
appoint from time to time and to utilize Subcustodians. With respect to
securities and funds held by a Subcustodian, either directly or indirectly
(including by a Securities Depository or Clearing Corporation), notwithstanding
any provisions of this Agreement to the contrary, payment for securities
purchased and delivery of securities sold may be made prior to receipt of
securities or payment, respectively, and securities or payment may be received
in a form, in accordance with (a) governmental regulations, (b) rules of
Securities Depositories and clearing agencies, (c) generally accepted trade
practice in the applicable local market, (d) the terms and characteristics of
the particular Investment, or (e) the terms of Instructions.
8.1 DOMESTIC SUBCUSTODIANS AND SECURITIES DEPOSITORIES. The Custodian
may deposit and/or maintain, either directly or through one or more agents
appointed by the Custodian, Investments of the Fund in any Securities Depository
in the United States, including The Depository Trust Company, provided such
Depository meets applicable requirements of the Federal Reserve Bank or of the
Securities and Exchange Commission. The Custodian may, at any time and from time
to time, appoint any bank as defined in Section 2(a)(5) of the 1940 Act meeting
the requirements of a custodian under Section 17(f) of the 1940 Act and the
rules and regulations thereunder, to act on behalf of the Fund as a Subcustodian
for purposes of holding Investments of the Fund in the United States.
16
8.2 FOREIGN SUBCUSTODIANS AND SECURITIES DEPOSITORIES. Unless
instructed otherwise by the Fund, the Custodian may deposit and/or maintain
non-U.S. Investments of the Fund in any non-U.S. Securities Depository provided
such Securities Depository meets the requirements of an "eligible securities
depository" under Rule 17f-7 promulgated under the 1940 Act, or any successor
rule or regulation (Rule 17f-7) or which by order of the Securities and Exchange
Commission is exempted therefrom. Prior to the time that securities are placed
with such depository, but subject to the provisions of Section 8.2.4 below, the
Custodian shall have prepared an assessment of the custody risks associated with
maintaining assets with the Securities Depository and shall have established a
system to monitor such risks on a continuing basis in accordance with subsection
8.2.3 of this Section. Additionally, the Custodian may, at any time and from
time to time, appoint (a) any bank, trust company or other entity meeting the
requirements of an "eligible foreign custodian" under Rule 17f-5 or which by
order of the Securities and Exchange Commission is exempted therefrom, or (b)
any bank as defined in Section 2(a)(5) of the 1940 Act meeting the requirements
of a custodian under Section 17(f) of the 1940 Act and the rules and regulations
thereunder, to act on behalf of the Fund as a Subcustodian for purposes of
holding Investments of the Fund outside the United States. Such appointment of
foreign Subcustodians shall be subject to approval of the Fund in accordance
with Subsections 8.2.1 and 8.2.2 hereof, and use of non-U.S. Securities
Depositories shall be subject to the terms of Subsections 8.2.3 and 8.2.4
hereof. An Instruction to open an account in a given country shall comprise
authorization of the Custodian to hold assets in such country in accordance with
the terms of this Agreement. The Custodian shall not be required to make
independent inquiry as to the authorization of the Fund to invest in such
country.
8.2.1 BOARD APPROVAL OF FOREIGN SUBCUSTODIANS. Unless
and except to the extent that the Board has delegated to and
the Custodian has accepted delegation of review of certain
matters concerning the appointment of Subcustodians pursuant
to Subsection 8.2.2, the Custodian shall, prior to the
appointment of any Subcustodian for purposes of holding
Investments of the Fund outside the United States, obtain
written confirmation of the approval of the Board of Trustees
of the Fund with respect to (a) the identity of a
Subcustodian, and (b) the Subcustodian agreement which shall
govern such appointment, such approval to be signed by an
Authorized Person.
8.2.2 DELEGATION OF BOARD REVIEW OF SUBCUSTODIANS.
From time to time, the Custodian may agree to perform certain
reviews of Subcustodians and of Subcustodian Contracts as
delegate of the Fund's Board. In such event, the Custodian's
duties and
17
obligations with respect to this delegated review will be
performed in accordance with the terms of the attached 17f-5
Delegation Schedule to this Agreement.
8.2.3 MONITORING AND RISK ASSESSMENT OF SECURITIES
DEPOSITORIES. Prior to the placement of any assets of the Fund
with a non-U.S. Securities Depository, the Custodian: (a)
shall provide to the Fund or its authorized representative an
assessment of the custody risks associated with maintaining
assets within such Securities Depository; and (b) shall have
established a system to monitor the custody risks associated
with maintaining assets with such Securities Depository on a
continuing basis and to promptly notify the Fund or its
Investment Adviser of any material changes in such risk. In
performing its duties under this subsection, the Custodian
shall use reasonable care and may rely on such reasonable
sources of information as may be available including but not
limited to: (i) published ratings; (ii) information supplied
by a Subcustodian that is a participant in such Securities
Depository; (iii) industry surveys or publications; (iv)
information supplied by the depository itself, by its auditors
(internal or external) or by the relevant Foreign Financial
Regulatory Authority. It is acknowledged that information
procured through some or all of these sources may not be
independently verifiable by the Custodian and that direct
access to Securities Depositories is limited under most
circumstances. Accordingly, the Custodian shall not be
responsible for errors or omissions in its duties hereunder
provided that it has performed its monitoring and assessment
duties with reasonable care. The risk assessment shall be
provided to the Fund or its Investment Advisor by such means
as the Custodian shall reasonably establish. Advices of
material change in such assessment may be provided by the
Custodian in the manner established as customary between the
Fund and the Custodian for transmission of material market
information.
8.3 RESPONSIBILITY FOR SUBCUSTODIANS. Except as provided in the last
sentence of this Section 8.3, the Custodian shall be liable to the Fund for any
loss or damage to the Fund caused by or resulting from the acts or omissions of
any Subcustodian to the extent that such acts or omissions would be deemed to be
negligence, gross negligence or willful misconduct in accordance with the terms
of the relevant subcustodian agreement under the laws, circumstances and
practices prevailing in the place where the act or omission occurred. The
Custodian shall use commercially reasonable efforts to recover from the
Subcustodian any such loss or damage for which the Subcustodian is liable to the
Custodian in accordance with the foregoing sentence. The liability of the
Custodian in respect of the countries and subcustodians so designated by the
Custodian, from time to time, on the Global Custody Network Listing, shall be
subject to the additional condition that the Custodian actually recovers such
loss or damage from the Subcustodian.
18
8.4 NEW COUNTRIES. The Fund shall be responsible for informing the
Custodian sufficiently in advance of a proposed investment which is to be held
in a country in which no Subcustodian is authorized to act in order that the
Custodian shall, if it deems appropriate to do so, have sufficient time to
establish a subcustodial arrangement in accordance herewith. In the event,
however, the Custodian is unable to establish such arrangements prior to the
time such investment is to be acquired, the Custodian is authorized to designate
at its discretion a local safekeeping agent, and the use of such local
safekeeping agent shall be at the sole risk of the Fund, and accordingly the
Custodian shall be responsible to the Fund for the actions of such agent if and
only to the extent the Custodian shall have recovered from such agent for any
damages caused the Fund by such agent.
9. RESPONSIBILITY OF THE CUSTODIAN. In performing its duties and obligations
hereunder, the Custodian shall use reasonable care under the facts and
circumstances prevailing in the market where performance is effected. Subject to
the specific provisions of this Section, the Custodian shall be liable for any
direct damage incurred by the Fund in consequence of the Custodian's negligence,
bad faith or willful misconduct. In no event shall the Custodian be liable
hereunder for any special, indirect, punitive or consequential damages arising
out of, pursuant to or in connection with this Agreement even if the Custodian
has been advised of the possibility of such damages. It is agreed that the
Custodian shall have no duty to assess the risks inherent in the Fund's
Investments or to provide investment advice with respect to such Investments and
that the Fund as principal shall bear any risks attendant to particular
Investments such as failure of counterparty or issuer.
9.1 LIMITATIONS OF PERFORMANCE. The Custodian shall not be responsible
under this Agreement for any failure to perform its duties, and shall not liable
hereunder for any loss or damage in association with such failure to perform,
for or in consequence of the following causes:
9.1.1 FORCE MAJEURE. FORCE MAJEURE shall mean any
circumstance or event which is beyond the reasonable control
of the Custodian, a Subcustodian or any agent of the Custodian
or a Subcustodian and which adversely affects the performance
by the
19
Custodian of its obligations hereunder, by the Subcustodian of
its obligations under its Subcustody Agreement or by any other
agent of the Custodian or the Subcustodian, including any
event caused by, arising out of or involving (a) an act of
God, (b) accident, fire, water damage or explosion, (c) any
computer, system or other equipment failure or malfunction
caused by any computer virus or the malfunction or failure of
any communications medium, (d) any interruption of the power
supply or other utility service, (e) any strike or other work
stoppage, whether partial or total, (f) any delay or
disruption resulting from or reflecting the occurrence of any
Sovereign Risk, (g) any disruption of, or suspension of
trading in, the securities, commodities or foreign exchange
markets, whether or not resulting from or reflecting the
occurrence of any Sovereign Risk, (h) any encumbrance on the
transferability of a currency or a currency position on the
actual settlement date of a foreign exchange transaction,
whether or not resulting from or reflecting the occurrence of
any Sovereign Risk, or (i) any other cause similarly beyond
the reasonable control of the Custodian.
9.1.2 COUNTRY RISK. COUNTRY RISK shall mean, with
respect to the acquisition, ownership, settlement or custody
of Investments in a jurisdiction, all risks relating to, or
arising in consequence of, systemic and markets factors
affecting the acquisition, payment for or ownership of
Investments including (a) the prevalence of crime and
corruption, (b) the inaccuracy or unreliability of business
and financial information, (c) the instability or volatility
of banking and financial systems, or the absence or inadequacy
of an infrastructure to support such systems, (d) custody and
settlement infrastructure of the market in which such
Investments are transacted and held, (e) the acts, omissions
and operation of any Securities Depository, (f) the risk of
the bankruptcy or insolvency of banking agents, counterparties
to cash and securities transactions, registrars or transfer
agents, and (g) the existence of market conditions which
prevent the orderly execution or settlement of transactions or
which affect the value of assets.
9.1.3 SOVEREIGN RISK. SOVEREIGN RISK shall mean, in
respect of any jurisdiction, including the United States of
America, where Investments is acquired or held hereunder or
under a Subcustody Agreement, (a) any act of war, terrorism,
riot, insurrection or civil commotion, (b) the imposition of
any investment, repatriation or exchange control restrictions
by any Governmental Authority, (c) the confiscation,
expropriation or nationalization of any Investments by any
Governmental Authority, whether de facto or de jure, (d) any
devaluation or revaluation of the currency, (e) the imposition
of taxes, levies or other charges affecting Investments, (f)
any change in the Applicable Law, or (g) any other economic or
political risk incurred or experienced.
9.2. LIMITATIONS ON LIABILITY. The Custodian shall not be liable for
any loss, claim, damage or other liability arising from the following causes:
9.2.1 FAILURE OF THIRD PARTIES. The failure of any
third party including: (a) any issuer of Investments or
book-entry or other agent of and issuer; (b) any counterparty
with respect to any Investment, including any issuer of
exchange-traded or other futures, option, derivative or
commodities contract; (c) failure of an Investment Advisor,
foreign custody manager (if not the Custodian) or other agent
of the Fund; or (d) failure of other third parties similarly
beyond the control or choice of the Custodian.
9.2.2 INFORMATION SOURCES. The Custodian may rely
upon information received from issuers of Investments or
agents of such issuers, information received from
Subcustodians and from other commercially reasonable sources
such as commercial data
20
bases and the like, but shall not be responsible for specific
inaccuracies in such information, provided that the Custodian
has complied with its standard of care under this Agreement
and relied upon such information in good faith, or for the
failure of any commercially reasonable information provider.
9.2.3 RELIANCE ON INSTRUCTION. Action by the
Custodian or the Subcustodian in reasonable reliance upon an
Instruction, even when such action conflicts with, or is
contrary to any provision of, the Fund's trust instrument,
bylaws, Applicable Law, or actions by the trustees or
shareholders of the Fund.
9.2.4 RESTRICTED SECURITIES. The limitations inherent
in the rights, transferability or similar investment
characteristics of a given Investment of the Fund.
10. INDEMNIFICATION. The Fund hereby indemnifies the Custodian and each
Subcustodian, and their respective agents, nominees and the partners, employees,
and officers, and agrees to hold each of them harmless from and against all
claims and liabilities, including reasonable counsel fees and taxes, incurred or
assessed against any of them in connection with the performance of this
Agreement and any Instruction, except as may arise from such party's breach of
the standard of care under this Agreement. If a Subcustodian or any other person
indemnified under the preceding sentence, gives written notice of claim to the
Custodian, the Custodian shall promptly give written notice to the Fund.
11. REPORTS AND RECORDS. The Custodian shall:
11.1 create and maintain records relating to the performance
of its obligations under this Agreement and as required by the 1940
Act, the rules and regulations thereunder, and Applicable Law. All such
records shall be the property of the Fund and in the event of the
termination of this Agreement, shall be delivered to any successor
custodian;
11.2 make available to the Fund, its auditors, agents and
employees, during regular business hours of the Custodian, upon
reasonable request, all records maintained by the Custodian pursuant to
Section 11.1 above, subject, however, to all reasonable security
requirements of the Custodian then applicable to the records of its
custody customers generally; and
11.3 make available to the Fund all Electronic Reports; it
being understood that the Custodian shall not be liable hereunder for
the inaccuracy or incompleteness thereof or for errors in any
information included therein, provided that the Custodian has complied
with the standard of care under this Agreement.
21
The Fund shall examine all records, howsoever produced or transmitted,
promptly upon receipt thereof and notify the Custodian promptly of any
discrepancy or error therein. Unless the Fund delivers written notice of any
such discrepancy or error within a reasonable time after its receipt thereof,
such records shall be deemed to be true and accurate. It is understood that the
Custodian now obtains and will in the future obtain information on the value of
assets from outside sources which may be utilized in certain reports made
available to the Fund. The Custodian deems such sources to be reliable but it is
acknowledged and agreed that the Custodian does not verify nor represent nor
warrant as to the accuracy or completeness of such information and accordingly
shall be without liability in selecting and using such sources and furnishing
such information.
12. MISCELLANEOUS.
12.1 PROXIES, ETC. The Fund will promptly execute and deliver, upon
request, such proxies, powers of attorney or other instruments as may be
necessary or desirable for the Custodian to provide, or to cause any
Subcustodian to provide, custody services.
12.2 ENTIRE AGREEMENT. Except as specifically provided herein, this
Agreement constitutes the entire agreement between the Fund and the Custodian
with respect to the subject matter hereof. Accordingly, this Agreement
supersedes any custody agreement or other oral or written agreements heretofore
in effect between the Fund and the Custodian with respect to the custody of the
Fund's Investments.
12.3 WAIVER AND AMENDMENT. No provision of this Agreement may be
waived, amended or modified, and no addendum to this Agreement shall be or
become effective, or be waived, amended or modified, except by an instrument in
writing executed by the party against which enforcement of such
22
waiver, amendment or modification is sought; provided, however, that an
Instruction shall, whether or not such Instruction shall constitute a waiver,
amendment or modification for purposes hereof, shall be deemed to have been
accepted by the Custodian when it commences actions pursuant thereto or in
accordance therewith.
12.4 GOVERNING LAW AND JURISDICTION. THIS AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND BE GOVERNED BY THE LAWS OF, THE STATE OF NEW YORK,
WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAW OF SUCH STATE. THE PARTIES HERETO
IRREVOCABLY CONSENT TO THE NON-EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE
OF NEW YORK AND THE FEDERAL COURTS LOCATED IN NEW YORK CITY IN THE BOROUGH OF
MANHATTAN. In no event shall this Agreement be subject to the Uniform Computer
Information Transactions Act.
12.5 NOTICES. Notices and other writings contemplated by this
Agreement, other than Instructions, shall be delivered (a) by hand, (b) by first
class registered or certified mail, postage prepaid, return receipt requested,
(c) by a nationally recognized overnight courier, or (d) by facsimile
transmission, provided that any notice or other writing sent by facsimile
transmission shall also be mailed, postage prepaid, to the party to whom such
notice is addressed. All such notices shall be addressed, as follows:
If to the Fund:
Janus Adviser
100 Fillmore Street
Denver, CO 80236
Attn: General Counsel
Telephone: (303) 316-5644
Facsimile (303) 639-6662
If to the Custodian:
Brown Brothers Harriman & Co.
40 Water Street
Boston, Massachusetts 02109
Attn: Manager, Securities Department
Telephone: (617) 742-1818
23
Facsimile: (617) 772-2263,
or such other address as the Fund or the Custodian may have designated
in writing to the other.
12.6 HEADINGS. Paragraph headings included herein are for convenience
of reference only and shall not modify, define, expand or limit any of the terms
or provisions hereof.
12.7 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original. This Agreement shall
become effective when one or more counterparts have been signed and delivered by
the Fund and the Custodian.
12.8 CONFIDENTIALITY. The parties hereto agree that each shall treat
confidentially the terms and conditions of this Agreement and all information
provided by each party to the other regarding its business and operations. All
confidential information provided by a party hereto shall be used by any other
party hereto solely for the purpose of rendering or obtaining services pursuant
to this Agreement and, except as may be required in carrying out this Agreement,
shall not be disclosed to any third party without the prior consent of such
providing party. The foregoing shall not be applicable to any information that
is publicly available when provided or thereafter becomes publicly available
other than through a breach of this Agreement, or that is required to be
disclosed by or to any bank examiner of the Custodian or any Subcustodian, any
Regulatory Authority, any auditor of the parties hereto, or by judicial or
administrative process or otherwise by Applicable Law.
12.9 COUNSEL. In fulfilling its duties hereunder, the Custodian shall
be entitled to receive and act upon the advice of (i) counsel regularly retained
by the Custodian in respect of such matters, (ii) counsel for the Fund or (iii)
such counsel as the Fund and the Custodian may agree upon, with respect to all
matters, and the Custodian shall be without liability for any action reasonably
taken or omitted pursuant to such advice.
12.10 CONFLICT. Nothing contained in this Agreement shall prevent the
Custodian and its associates from (i) dealing as a principal or an intermediary
in the sale, purchase or loan of the Fund's Investments to, or from the
Custodian or its associates; (ii) acting as a custodian, a subcustodian, a
trustee,
24
an agent, securities dealer, an investment manager or in any other capacity for
any other client whose interests may be adverse to the interest of the Fund; or
(iii) buying, holding, lending, and dealing in any way in any assets for the
benefit of its own account, or for the account of any other client whose
interests may be adverse to the Fund notwithstanding that the same or similar
assets may be held or dealt in by, or for the account of the Fund by the
Custodian. The Fund hereby voluntarily consents to, and waives any potential
conflict of interest between the Custodian and/or its associates and the Fund,
and agrees that:
(a) the Custodian's and/or its associates' engagement in
any such transaction shall not disqualify the
Custodian from continuing to perform as the custodian
of the Fund under this Agreement;
(b) the Custodian and/or its associates shall not be
under any duty to disclose any information in
connection with any such transaction to the Fund;
(c) the Custodian and/or its associates shall not be
liable to account to the Fund for any profits or
benefits made or derived by or in connection with any
such transaction; and
(d) the Fund shall use all reasonable efforts to disclose
this provision, among other provisions in this
Agreement, to its shareholders.
13. DEFINITIONS. The following defined terms will have the respective meanings
set forth below.
13.1 ADVANCE(s) shall mean any extension of credit by or through the
Custodian or by or through any Subcustodian and shall include amounts paid to
third parties for account of the Fund or in discharge of any expense, tax or
other item payable by the Fund.
13.2 AGENCY ACCOUNT(s) shall mean any deposit account opened on the
books of a Subcustodian or other banking institution in accordance with Section
7.1 hereof.
13.3 AGENT(s) shall have the meaning set forth in the last sentence of
Section 6 hereof.
25
13.4 APPLICABLE LAW shall mean with respect to each jurisdiction, all
(a) laws, statutes, treaties, regulations, guidelines (or their equivalents);
(b) orders, interpretations licenses and permits; and (c) judgments, decrees,
injunctions writs, orders and similar actions by a court of competent
jurisdiction; compliance with which is required or customarily observed in such
jurisdiction.
13.5 AUTHORIZED PERSON(s) shall mean any person or entity authorized to
give Instructions on behalf of the Fund in accordance with Section 4.1 hereof.
13.6 BOOK-ENTRY AGENT(s) shall mean an entity acting as agent for the
issuer of Investments for purposes of recording ownership or similar entitlement
to Investments, including without limitation a transfer agent or registrar.
13.7 CLEARING CORPORATION shall mean any entity or system established
for purposes of providing securities settlement and movement and associated
functions for a given market.
13.8 DELEGATION SCHEDULE shall mean any separate schedule entered into
between the Custodian and the Fund or its authorized representative with respect
to certain matters concerning the appointment and administration of
Subcustodians delegated to the Custodian pursuant to Rule 17f-5.
13.9 ELECTRONIC AND ONLINE SERVICES SCHEDULE shall mean any separate
agreement entered into between the Custodian and the Company or its authorized
representative with respect to certain matters concerning certain electronic and
online services as described therein and as may be made available from time to
time by the Custodian to the Company.
13.10 ELECTRONIC REPORTS shall mean any reports prepared by the
Custodian and remitted to the Fund or its authorized representative via the
internet or electronic mail.
13.11 FOREIGN CUSTODY MANAGER shall mean the Fund's foreign custody
manager appointed pursuant to Rule 17f-5 of the 1940 Act.
13.12 FOREIGN FINANCIAL REGULATORY AUTHORITY shall have the meaning
given by Section 2(a)(50) of the 1940 Act.
13.13 FUNDS TRANSFER SERVICES SCHEDULE shall mean any separate schedule
entered into between the Custodian and the Fund or its authorized representative
with respect to certain matters concerning the processing of payment orders from
Principal Accounts of the Fund.
26
13.14 GLOBAL CUSTODY NETWORK LISTING shall mean the Countries and
Subcustodians approved for Investments in non-U.S. Markets.
13.15 INSTRUCTION(s) shall have the meaning assigned in Section 4
hereof.
13.16 INVESTMENT ADVISOR shall mean any person or entity who is an
Authorized Person to give Instructions with respect to the investment and
reinvestment of the Fund's Investments.
13.17 INVESTMENT(s) shall mean any investment asset of the Fund,
including without limitation securities, bonds, notes, and debentures as well as
receivables, derivatives, contractual rights or entitlements and other
intangible assets.
13.18 MARGIN ACCOUNT shall have the meaning set forth in Section 6.4
hereof.
13.19 MARKET VALUE shall have the meaning set forth in Section 5.5
hereof.
13.20 PRINCIPAL ACCOUNT(s) shall mean deposit accounts of the Fund
carried on the books of BBH&Co. as principal in accordance with Section 7
hereof.
13.21 SAFEKEEPING ACCOUNT shall mean an account established on the
books of the Custodian or any Subcustodian for purposes of segregating the
interests of the Fund (or clients of the Custodian or Subcustodian) from the
assets of the Custodian or any Subcustodian.
13.22 SECURITIES DEPOSITORY shall mean a central or book entry system
or agency established under Applicable Law, including, but not limited to Rule
17f-4 under the 1940 Act, for purposes of recording the ownership and/or
entitlement to investment securities for a given market that, if a foreign
Securities Depository, meets the definitional requirements of Rule 17f-7 under
the 1940 Act.
13.23 SUBCUSTODIAN(s) shall mean each foreign bank appointed by the
Custodian pursuant to Section 8 hereof, but shall not include Securities
Depositories.
13.24 TRI-PARTY AGREEMENT shall have the meaning set forth in Section
6.4 hereof.
13.25 1940 ACT shall mean the Investment Company Act of 1940, as
amended.
13.26 RULE 17f-7 shall have the meaning set forth in Section 8.2
hereof.
27
14. COMPENSATION. The Fund agrees to pay to the Custodian (a) a fee in an amount
set forth in the fee letter between the Fund and the Custodian in effect on the
date hereof or as amended from time to time, and (b) all reasonable
out-of-pocket expenses incurred by the Custodian, including the fees and
expenses of all Subcustodians, and payable from time to time. Amounts payable by
the Fund under and pursuant to this Section 14 shall be payable by wire transfer
to the Custodian at BBH&Co. in New York, New York.
15. TERMINATION. This Agreement may be terminated by either party in accordance
with the provisions of this Section. The provisions of this Agreement and any
other rights or obligations incurred or accrued by any party hereto prior to
termination of this Agreement shall survive any termination of this Agreement.
15.1 NOTICE AND EFFECT. This Agreement may be terminated by either
party by written notice effective no sooner than seventy-five (75) consecutive
calendar days following the date that notice to such effect shall be delivered
to other party at its address set forth in Section 12.5 hereof.
15.2 SUCCESSOR CUSTODIAN. In the event of the appointment of a
successor custodian, it is agreed that the Investments of the fund held by the
Custodian or any Subcustodian shall be delivered to the successor custodian in
accordance with reasonable Instructions. The Custodian agrees to cooperate with
the Fund in the execution of documents and performance of other actions
necessary or desirable in order to facilitate the succession of the new
custodian. If no successor custodian shall be appointed, the Custodian shall in
like manner transfer the Fund's Investments in accordance with Instructions.
15.3 DELAYED SUCCESSION. If no Instruction has been given as of the
effective date of termination, Custodian may at any time on or after such
termination date and upon ten (10) consecutive calendar days written notice to
the Fund either (a) deliver the Investments of the Fund held hereunder to the
Fund at the
28
address designated for receipt of notices hereunder; or (b) deliver any
investments held hereunder to a bank or trust company having a capitalization of
not less than $25,000,000 USD equivalent and operating under the Applicable law
of the jurisdiction where such Investments are located, such delivery to be at
the risk of the Fund. In the event that Investments or moneys of the Fund remain
in the custody of the Custodian or its Subcustodians after the date of
termination owing to the failure of the Fund to issue Instructions with respect
to their disposition or owing to the fact that such disposition could not be
accomplished in accordance with such Instructions despite diligent efforts of
the Custodian, the Custodian shall be entitled to compensation for its services
as provided in Section 14 hereof with respect to such Investments and moneys
during such period as the Custodian or its Subcustodians retain possession of
such items and the provisions of this Agreement shall remain in full force and
effect until disposition in accordance with this Section 15 is accomplished.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
duly executed as of the date first above written.
The undersigned acknowledges that (I/we) have received a copy of this document
BROWN BROTHERS HARRIMAN & CO. JANUS ADVISER
By: By:
------------------------------- ----------------------------------
Name: Name: Kelley Abbott Howes
Title: Title: Vice President
Date: Date:
29
APPENDIX A
LIST OF SERIES
U.S. Value Fund
International Equity Fund
30
FUNDS TRANSFER SERVICES SCHEDULE TO CUSTODIAN AGREEMENT
1. Execution of Payment Orders. Brown Brothers Harriman & Co. (the CUSTODIAN) is
hereby instructed by Janus Adviser (the COMPANY) to execute each payment order,
whether denominated in United States dollars or other applicable currencies,
received by the Custodian in the Company's name as sender and authorized and
confirmed by an Authorized Person as defined in a Custodian Agreement dated as
of August 15, 2003 by and between the Custodian and the Company, as amended or
restated from time thereafter (the AGREEMENT), provided that the Company has
sufficient available funds on deposit in a Principal Account as defined in the
Agreement and provided that the order (i) is received by the Custodian in the
manner specified in this Funds Transfer Services Schedule or any amendment
hereafter; (ii) complies with any written instructions and restrictions of the
Company as set forth in this Funds Transfer Services Schedule or any amendment
hereafter; (iii) is authorized by the Company or is verified by the Custodian in
compliance with a security procedure set forth in Paragraph 2 below for
verifying the authenticity of a funds transfer communication sent to the
Custodian in the name of the Company or for the detection of errors set forth in
any such communication; and (iv) contains sufficient data to enable the
Custodian to process such transfer.
2. Security Procedure. The Company hereby elects to use the procedure selected
below as its security procedure (the SECURITY PROCEDURE). The Security Procedure
will be used by the Custodian to verify the authenticity of a payment order or a
communication amending or canceling a payment order. The Custodian will act on
instructions received provided the instruction is authenticated by the Security
Procedure. The Company agrees and acknowledges in connection with (i) the size,
type and frequency of payment orders normally issued or expected to be issued by
the Company to the Custodian, (ii) all of the security procedures offered to the
Company by the Custodian, and (iii) the usual security procedures used by
customers and receiving banks similarly situated, that authentication through
the Security Procedure shall be deemed commercially reasonable for the
authentication of all payment orders submitted to the Custodian. The Company
hereby elects (PLEASE CHOOSE ONE) the following Security Procedure as described
below:
[ ] BIDS and BIDS Worldview Payment Products. BIDS and BIDS
Worldview Payment Products, are on-line payment order
authorization facilities with built-in authentication
procedures. The Custodian and the Company shall each be
responsible for maintaining the confidentiality of passwords
or other codes to be used by them in connection with BIDS. The
Custodian will act on instructions received through BIDS
without duty of further confirmation unless the Company
notifies the Custodian that its password is not secure.
[ ] SWIFT. The Custodian and the Company shall comply with
SWIFT's authentication procedures. The Custodian will act on
instructions received via SWIFT provided the instruction is
authenticated by the SWIFT system.
[ ] Tested Telex. The Custodian will accept payment orders sent
by tested telex, provided the test key matches the algorithmic
key the Custodian and Company have agreed to use.
[X] Computer Transmission. The Custodian is able to accept
transmissions sent from the Company's computer facilities to
the Custodian's computer facilities provided such
transmissions are encrypted and digitally certified or are
otherwise authenticated in a reasonable manner based on
available technology. Such procedures shall be established in
an operating protocol between the Custodian and the Company.
31
[X] Telefax Instructions. A payment order transmitted to the
Custodian by telefax transmission shall transmitted by the
Company to a telephone number specified from time to time by
the Custodian for such purposes. If it detects no
discrepancies, the Custodian will then either:
1. If the telefax requests a repetitive payment
order, the Custodian may call the Company at
its last known telephone number, request to
speak to the Company or Authorized Person,
and confirm the authorization and the
details of the payment order (a CALLBACK);
or
2. If the telefax requests a non-repetitive
order, the Custodian will perform a
Callback.
All faxes must be accompanied by a fax cover sheet which indicates the
sender's name, company name, telephone number, fax number, number of
pages, and number of transactions or instructions attached.
[ ] Telephonic. A telephonic payment order shall be called into
the Custodian at the telephone number designated from time to
time by the Custodian for that purpose. The caller shall
identify herself/himself as an Authorized Person. The
Custodian shall obtain the payment order data from the caller.
The Custodian shall then:
1. If a telephonic repetitive payment order,
the Custodian may perform a Callback; or
2. If a telephonic non-repetitive payment
order, the Custodian will perform a
Callback.
In the event the Company chooses a procedure which is not a Security Procedure
as described above, the Company agrees to be bound by any payment order (whether
or not authorized) issued in its name and accepted by the Custodian in
compliance with the procedure selected by the Company.
3. Rejection of Payment Orders. The Custodian shall give the Company timely
notice of the Custodian's rejection of a payment order. Such notice may be given
in writing or orally by telephone, each of which is hereby deemed commercially
reasonable. In the event the Custodian fails to execute a properly executable
payment order and fails to give the Company notice of the Custodian's
non-execution, the Custodian shall be liable only for the Company's actual
damages and only to the extent that such damages are recoverable under UCC 4A
(as defined in Paragraph 7 below). Notwithstanding anything in this Funds
Transfer Services Schedule and the Agreement to the contrary, the Custodian
shall in no event be liable for any consequential or special damages under this
Funds Transfer Services Schedule, whether or not such damages relate to services
covered by UCC 4A, even if the Custodian has been advised of the possibility of
such damages. Whenever compensation in the form of interest is payable by the
Custodian to the Company pursuant to this Funds Transfer Services Schedule, such
compensation will be payable as specified in UCC 4A.
4. Cancellation of Payment Orders. The Company may cancel a payment order but
the Custodian shall have no liability for the Custodian's failure to act on a
cancellation instruction unless the Custodian has received such cancellation
instruction at a time and in a manner affording the Custodian reasonable
opportunity to act prior to the Custodian's execution of the order. Any
cancellation shall be sent and confirmed in the manner set forth in Paragraph 2
above.
32
5. Responsibility for the Detection of Errors and Unauthorized Payment Orders.
Except as may be provided, the Custodian is not responsible for detecting any
Company error contained in any payment order sent by the Company to the
Custodian. In the event that the Company's payment order to the Custodian either
(i) identifies the beneficiary by both a name and an identifying or bank account
number and the name and number identify different persons or entities, or (ii)
identifies any bank by both a name and an identifying number and the number
identifies a person or entity different from the bank identified by name,
execution of the payment order, payment to the beneficiary, cancellation of the
payment order or actions taken by any bank in respect of such payment order may
be made solely on the basis of the number. The Custodian shall not be liable for
interest on the amount of any payment order that was not authorized or was
erroneously executed unless the Company so notifies the Custodian within thirty
(30) business days following the Company's receipt of notice that such payment
order had been processed. If a payment order in the name of the Company and
accepted by the Custodian was not authorized by the Company, the liability of
the parties will be governed by the applicable provisions of UCC 4A.
6. Laws and Regulations. The rights and obligations of the Custodian and the
Company with respect to any payment order executed pursuant to this Funds
Transfer Services Schedule will be governed by any applicable laws, regulations,
circulars and funds transfer system rules, the laws and regulations of the
United States of America and of other relevant countries including exchange
control regulations and limitations on dealings or other sanctions, and
including without limitation those sanctions imposed under the law of the United
States of America by the Office of Foreign Assets Control. Any taxes, fines,
costs, charges or fees imposed by relevant authorities on such transactions
shall be for the account of the Company.
7. Miscellaneous. All accounts opened by the Company or its authorized agents at
the Custodian subsequent to the date hereof shall be governed by this Funds
Transfer Schedule. All terms used in this Funds Transfer Services Schedule shall
have the meaning set forth in Article 4A of the Uniform Commercial Code as
currently in effect in the State of New York (UCC 4A) unless otherwise set forth
herein. The terms and conditions of this Funds Transfer Services Schedule are in
addition to, and do not modify or otherwise affect, the terms and conditions of
the Agreement and any other agreement or arrangement between the parties hereto.
8. Indemnification. The Custodian does not recommend the sending of instructions
by telefax or telephonic means as provided in Paragraph 2. BY ELECTING TO SEND
INSTRUCTIONS BY TELEFAX OR TELEPHONIC MEANS, THE COMPANY AGREES TO INDEMNIFY THE
CUSTODIAN AND ITS PARTNERS, OFFICERS AND EMPLOYEES FOR ALL LOSSES THEREFROM,
EXCEPT TO THE EXTENT THAT THE CUSTODIAN HAS FAILED TO FOLLOW THE SECURITY
PROCEDURES IN CONNECTION THEREWITH AS SET FORTH HEREIN.
---------------------------------------
OPTIONAL: The Custodian will perform a Callback if
instructions are sent by telefax or telephonic means as provided in
Paragraph 2 above. THE COMPANY MAY, AT ITS OWN RISK AND BY HEREBY
AGREEING TO INDEMNIFY THE CUSTODIAN AND ITS PARTNERS, OFFICERS AND
EMPLOYEES FOR ALL LOSSES THEREFROM, ELECT TO WAIVE A CALLBACK BY THE
CUSTODIAN BY INITIALLING HERE:____
---------------------------------------
33
The undersigned acknowledges that (I/we) have received a copy of this document
Accepted and agreed:
BROWN BROTHERS HARRIMAN & CO. JANUS ADVISER
By: By:
------------------------------- ----------------------------------
Name: Name: Kelley Abbott Howes
Title: Title: Vice President
Date: Date:
34
ELECTRONIC AND ON-LINE SERVICES
SCHEDULE
This Electronic and On-Line Services Schedule (this SCHEDULE) to a Custodian
Agreement dated as of August 15, 2003 (as amended from time to time hereafter,
the AGREEMENT) by and between Brown Brothers Harriman & Co. (WE, US OUR) and
Janus Adviser (YOU, YOUR), provides general provisions governing your use of and
access to the Services (as hereinafter defined) provided to you by us via the
Internet (at www.bbhco.com or such other URL as we may instruct you to use to
access our products) and via a direct dial-up connection between your computer
and our computers, as of August 15, 2003 (the EFFECTIVE DATE). Use of the
Services constitutes acceptance of the terms and conditions of this Schedule,
any Appendices hereto, the Terms and Conditions posted on our web site, and any
terms and conditions specifically governing a particular Service or our other
products, which may be set forth in the Agreement or in a separate related
agreement (collectively, the RELATED AGREEMENTS).
1. GENERAL TERMS.
You will be granted access to our suite of online products, which may
include, but shall not be limited to the following services via the
Internet or dial-up connection (each separate service is a SERVICE;
collectively referred to as the SERVICES):
1.1. BIDS(R) and BIDS WorldView, a system for effectuating
securities and fund trade instruction and execution,
processing and handling instructions, and for the input and
retrieval of other information;
1.2. F/X WorldView, a system for executing foreign exchange trades;
1.3. Fund WorldView, a system for receiving fund and prospectus
information;
1.4. BBHCOnnect, a system for placing securities trade instructions
and following the status and detail of trades;
1.5. ActionView(SM), a system for receiving certain corporate
action information;
1.6. Risk View, an interactive portfolio risk analysis tool; and
1.7. Such other services as we shall from time to time offer.
2. SECURITY/PASSWORDS.
2.1. A digital certificate and/or an encryption key may be required
to access certain Services. You may apply for a digital
certificate and/or an encryption key by following the
procedures set forth at http://www.bbh.com/certs/. You also
will need an identification code (ID) and password(s)
(PASSWORD) to access the Services.
2.2. You agree to safeguard your digital certificate and/or
encryption key, ID, and Password and not to give or make
available, intentionally or otherwise, your digital
certificate, ID, and/or Password to any unauthorized person.
You must immediately notify us in writing if you believe that
your digital certificate and/or encryption key, Password, or
ID has been compromised or if you suspect unauthorized access
to your account by means of the Services or otherwise, or when
a person to whom a digital certificate and/or an encryption
key, Password, or ID has been assigned leaves or is no longer
permitted to access the Services.
35
2.3. We will not be responsible for any breach of security, or for
any unauthorized trading or theft by any third party, caused
by your failure (be it intentional, unintentional, or
negligent) to maintain the confidentiality of your ID and/or
Password and/or the security of your digital certificate
and/or encryption key.
3. INSTRUCTIONS.
3.1. Proper instructions under this Schedule shall be provided as
designated in the Related Agreements (INSTRUCTIONS).
3.2. The following additional provisions apply to Instructions
provided via the Services:
a. Instructions sent by electronic mail will not be
accepted or acted upon.
b. You authorize us to act upon Instructions received
through the Services utilizing your digital
certificate, ID, and/or Password as though they were
duly authorized written instructions, without any
duty of verification or inquiry on our part, and
agree to hold us harmless for any losses you
experience as a result.
c. From time to time, the temporary unavailability of
third party telecommunications or computer systems
required by the Services may result in a delay in
processing Instructions. In such an event, we shall
not be liable to you or any third party for any
liabilities, losses, claims, costs, damages,
penalties, fines, obligations, or expenses of any
kind (including without limitation, reasonable
attorneys', accountants', consultants', or experts'
fees and disbursements) that you experience due to
such a delay.
4. ELECTRONIC DOCUMENTS.
We may make periodic statements, disclosures, notices, and other
documents available to you electronically, and, subject to any delivery
and receipt verification procedures required by law, you agree to
receive such documents electronically and to check the statements for
accuracy. If you believe any such statement contains incorrect
information, you must follow the procedures set forth in the Related
Agreement(s).
5. MALICIOUS CODE.
You understand and agree that you will be responsible for the
introduction (by you, your employees, agents, or representatives) into
the Services, whether intentional or unintentional, of (i) any virus or
other code, program, or sub-program that damages or interferes with the
operation of the computer system containing the code, program or
sub-program, or halts, disables, or interferes with the operation of
the Services themselves; or (ii) any device, method, or token whose
knowing or intended purpose is to permit any person to circumvent the
normal security of the Services or the system containing the software
code for the Services (MALICIOUS CODE). You agree to take all necessary
actions and precautions to prevent the introduction and proliferation
of any Malicious Code into those systems that interact with the
Services.
6. INDEMNIFICATION.
For avoidance of doubt, you hereby agree that the provisions in the
Related Agreement(s) related to your indemnification of us and any
limitations on our liability and responsibilities to you shall be
applicable to this Agreement, and are hereby expressly incorporated
herein. You agree that the Services are comprised of telecommunications
and computer systems, and that it is possible that Instructions,
information, transactions, or account reports might be added to,
changed, or omitted by
36
electronic or programming malfunction, unauthorized access, or other
failure of the systems which comprise the Services, despite the
security features that have been designed into the Services. You agree
that we will not be liable for any action taken or not taken in
complying with the terms of this Schedule, except for our willful
misconduct or negligence. The provisions of this paragraph shall
survive the termination of this Schedule and the Related Agreements.
7. PAYMENT.
You may be charged for services hereunder as set forth in a fee
schedule from time to time agreed by us.
8. TERM/TERMINATION.
8.1. This Schedule is effective as of the date you sign it or first
use the Services, whichever is first, and continues in effect
until such time as either you or we terminate the Schedule in
accordance with this Section 8 and/or until your off-line use
of the Services is terminated.
8.2. We may terminate your access to the Services at any time, for
any reason, with five (5) business days prior notice; provided
that we may terminate your access to the Services with no
prior notice (i) if your account with us is closed, (ii) if
you fail to comply with any of the terms of this Agreement,
(iii) if we believe that your continued access to the Services
poses a security risk, or (iv) if we believe that you are
violating or have violated applicable laws, and we will not be
liable for any loss you may experience as a result of such
termination. You may terminate your access to the Services at
any time by giving us ten (10) business days notice. Upon
termination, we will cancel all your Passwords and IDs and any
in-process or pending Instructions will be carried out or
cancelled, at our sole discretion.
9. REPRESENTATIONS AND WARRANTIES.
We represent and warrant that:
(i) we have the right to license the Services in accordance with this
Schedule;
(ii) the granting of this limited license to you does not violate any
agreements, right or obligations of any person, firm or corporation;
and
(iii) we shall protect and maintain our rights in the Services for the
duration of this Schedule.
Accordingly, we shall indemnify, defend and hold you harmless from any
direct costs, expenses, damages, judgments or settlements incurred
because of an action or claim by third parties alleging that your use
of and access to the Services is an infringement of the intellectual
property rights of a third party in the United States, but only if you
(a) promptly notify us in writing of any claim, (b) cooperate
reasonably with us in the defense or settlement of the claim, and (c)
allow us to control the defense or settlement of the claim. This
indemnity shall not apply to the extent that the infringement claim
results from (a) your unauthorized use of Services or (b) accessing the
Services through unapproved third party products.
10. MISCELLANEOUS.
10.1. NOTICES. All notices, requests, and demands (other than
routine operational communications, such as Instructions)
shall be in such form and effect as provided in the Related
Agreement(s).
37
10.2. INCONSISTENT PROVISIONS. Each Service may be governed by
separate terms and conditions in addition to this Schedule and
the Related Agreement(s). Except where specifically provided
to the contrary in this Schedule, in the event that such
separate terms and conditions conflict with this Schedule and
the Related Agreement(s), the provisions of this Schedule
shall prevail to the extent this Schedule applies to the
transaction in question.
10.3. BINDING EFFECT; ASSIGNMENT; SEVERABILITY. This Schedule shall
be binding on you, your employees, officers and agents. We may
assign or delegate our rights and duties under this Schedule
at any time without notice to you. Your rights under this
Schedule may not be assigned without our prior written
consent. In the event that any provision of this Schedule
conflicts with the law under which this Schedule is to be
construed or if any such provision is held invalid or
unenforceable by a court with jurisdiction over you and us,
such provision shall be deemed to be restated to effectuate as
nearly as possible the purposes of the Schedule in accordance
with applicable law. The remaining provisions of this Schedule
and the application of the challenged provision to persons or
circumstances other than those as to which it is invalid or
unenforceable shall not be affected thereby, and each such
provision shall be valid and enforceable to the full extent
permitted by law.
10.4. CHOICE OF LAW; JURY TRIAL. This Schedule shall be governed by
and construed, and the legal relations between the parties
shall be determined, in accordance with the laws of the State
of New York, without giving effect to the principles of
conflicts of laws. Each party agrees to waive its right to
trial by jury in any action or proceeding based upon or
related to this Agreement. The parties agree that all actions
and proceedings based upon or relating to this Schedule may be
litigated in the federal and state courts located within New
York City, New York. The parties expressly disclaim
application of the Uniform Computer Information Transactions
Act to this Schedule.
The undersigned acknowledges that (I/we) have received a copy of this
document
JANUS ADVISER ("YOU")
BY:
--------------------------------------------
NAME: KELLY ABBOTT HOWES
TITLE: VICE PRESIDENT
DATE:
------------------------------------------
38
17f-5 DELEGATION SCHEDULE
By its execution of this Delegation Schedule dated as of August 15,
2003, JANUS ADVISER (the FUND), an open-end management investment company
registered with the Securities and Exchange Commission (the COMMISSION) under
the Investment Company Act of 1940, as amended (the 1940 ACT), acting through
its Board of Trustees or its duly appointed representative on behalf of each
series thereof set forth on Appendix A to the Custodian Agreement, hereby
appoints BROWN BROTHERS HARRIMAN & CO., a New York limited partnership with an
office in Boston, Massachusetts (the DELEGATE) as its delegate to perform
certain functions with respect to the custody of Fund's Assets outside the
United States.
1. Maintenance of Fund's Assets Abroad. The Fund, acting through its Board or
its duly authorized representative, hereby instructs Delegate pursuant to the
terms of the Custodian Agreement dated as of the date hereof executed by and
between the Fund and the Delegate (the CUSTODIAN AGREEMENT) to place and
maintain the Fund's Assets in countries outside the United States in accordance
with Instructions received from the Fund's Investment Advisor. Such instruction
shall represent an Instruction under the terms of the Custodian Agreement. The
Fund acknowledges that (a) the Delegate shall perform services hereunder only
with respect to the countries where it accepts delegation as Foreign Custody
Manager as indicated on the Delegate's Global Custody Network Listing; (b)
depending on conditions in the particular country, advance notice may be
required before the Delegate shall be able to perform its duties hereunder in or
with respect to such country (such advance notice to be reasonable in light of
the specific facts and circumstances attendant to performance of duties in such
country); and (c) nothing in this Delegation Schedule shall require the Delegate
to provide delegated or custodial services in any country, and there may from
time to time be countries as to which the Delegate determines it will not
provide delegation services.
39
2. Delegation. Pursuant to the provisions of Rule 17f-5 under the 1940 Act as
amended, the Board hereby delegates to the Delegate, and the Delegate hereby
accepts such delegation and agrees to perform, only those duties set forth in
this Delegation Schedule concerning the safekeeping of the Fund's Assets in each
of the countries as to which it acts as the Board's delegate. The Fund hereby
appoints the Delegate as the Fund's "Foreign Custody Manager" as such term is
used in Rule 17f-5 of the 1940 Act. The Delegate is hereby authorized to take
such actions on behalf of or in the name of the Fund as are reasonably required
to discharge its duties under this Delegation Schedule, including, without
limitation, to cause the Fund's Assets to be placed with a particular Eligible
Foreign Custodian in accordance herewith. The Fund confirms to the Delegate that
the Fund or its investment adviser has considered the Sovereign Risk and
prevailing Country Risk as part of its continuing investment decision process,
including such factors as may be reasonably related to the systemic risk of
maintaining the Fund's Assets in a particular country, including, but not
limited to, financial infrastructure, prevailing custody and settlement systems
and practices (including the use of any Securities Depository in the context of
information provided by the Custodian in the performance of its duties as
required under Rule 17f-7 of the 1940 Act and the terms of the Custodian
Agreement governing such duties), and the laws relating to the safekeeping and
recovery of the Fund's Assets held in custody pursuant to the terms of the
Custodian Agreement.
3. Selection of Eligible Foreign Custodian and Contract Administration. The
Delegate shall perform the following duties with respect to the selection of
Eligible Foreign Custodians and administration of certain contracts governing
the Fund's foreign custodial arrangements:
(a) Selection of Eligible Foreign Custodian. The Delegate shall place
and maintain the Fund's Assets with an Eligible Foreign Custodian; provided that
the Delegate shall have determined that the Fund's Assets will be subject to
reasonable care based on the standards applicable to custodians in the relevant
market after considering all factors relevant to the safekeeping of such assets
including without limitation:
(i) The Eligible Foreign Custodian's practices, procedures,
and internal controls, including, but not limited to, the physical
protections available for certificated securities (if applicable), the
controls and procedures for dealing with any Securities Depository, the
method of keeping custodial records, and the security and data
protection practices;
(ii) Whether the Eligible Foreign Custodian has the requisite
financial strength to provide reasonable care for the Fund's Assets;
40
(iii) The Eligible Foreign Custodian's general reputation and
standing; and
(iv) Whether the Fund will have jurisdiction over and be able
to enforce judgments against the Eligible Foreign Custodian, such as by
virtue of the existence of any offices of such Eligible Foreign
Custodian in the United States or such Eligible Foreign Custodian's
appointment of an agent for service of process in the United States or
consent to jurisdiction in the United States.
The Delegate shall be required to make the foregoing determination in accordance
with the standard of care set forth in Section 8 hereof and belief based only on
information reasonably available to it.
(b) Contract Administration. The Delegate shall cause that the foreign
custody arrangements with an Eligible Foreign Custodian shall be governed by a
written contract that the Delegate has determined will provide reasonable care
for Fund assets based on the standards specified in paragraph (c)(1) of Rule
17f-5 of the 1940 Act. Each such contract shall, except as set forth in the last
paragraph of this subsection (b), include provisions that provide:
(i) For indemnification or insurance arrangements (or any
combination of the foregoing) such that the Fund will be adequately
protected against the risk of loss of assets held in accordance with
such contract;
(ii) That the Fund's Assets will not be subject to any right,
charge, security interest, lien or claim of any kind in favor of the
Eligible Foreign Custodian or its creditors except a claim of payment
for their safe custody or administration or, in the case of cash
deposits, liens or rights in favor of creditors of such Custodian
arising under bankruptcy, insolvency or similar laws;
(iii) That beneficial ownership of the Fund's Assets will be
freely transferable without the payment of money or value other than
for safe custody or administration;
(iv) That adequate records will be maintained identifying the
Fund's Assets as belonging to the Fund or as being held by a third
party for the benefit of the Fund;
(v) That the Fund's independent public accountants will be given
access to those records described in (iv) above or confirmation of the
contents of such records; and
(vi) That the Delegate will receive sufficient and timely periodic
reports with respect to the safekeeping of the Fund's Assets,
including, but not limited to, notification of any transfer to or from
the Fund's account or a third party account containing the Fund's
Assets.
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Such contract may contain, in lieu of any or all of the provisions
specified in this Section 3(b), such other provisions that the Delegate
determines will provide, in their entirety, the same or a greater level
of care and protection for the Fund's Assets as the specified
provisions, in their entirety.
(c) Limitation to Delegated Selection. Notwithstanding anything in this
Delegation Schedule to the contrary, the duties under this Section 3 shall apply
only to Eligible Foreign Custodians selected by the Delegate and shall not apply
to Securities Depositories or to any Eligible Foreign Custodian that the
Delegate is directed to use pursuant to Section 7 of this Delegation Schedule.
4. Monitoring. The Delegate shall establish a system to monitor at reasonable
intervals (but at least annually) the appropriateness of maintaining the Fund's
Assets with each Eligible Foreign Custodian that has been selected by the
Delegate pursuant to Section 3 of this Delegation Schedule. The Delegate shall
monitor the continuing appropriateness of placement of the Fund's Assets in
accordance with the criteria established under Section 3(a) of this Delegation
Schedule. The Delegate shall monitor the continuing appropriateness of the
contract governing the Fund's arrangements in accordance with the criteria
established under Section 3(b) of this Delegation Schedule.
5. Reporting. At the end of each calendar quarter, the Delegate shall provide to
the Board written reports specifying placement of the Fund's Assets with each
Eligible Foreign Custodian selected by the Delegate pursuant to Section 3 of
this Delegation Schedule and shall promptly report as to any material changes to
such foreign custody arrangements. Delegate will prepare such a report with
respect to any Eligible Foreign Custodian that the Delegate has been instructed
to use pursuant to Section 7 of this Delegation Schedule only to the extent
specifically agreed with respect to the particular situation.
6. Withdrawal of Fund's Assets. If the Delegate determines that an arrangement
with a specific Eligible Foreign Custodian selected by the Delegate under
Section 3 of this Delegation Schedule no longer meets the requirements of said
Section, Delegate shall withdraw the Fund's Assets from the non-complying
arrangement as soon as reasonably practicable; provided, however, that if in the
reasonable judgment of the Delegate, such withdrawal would require liquidation
of any of the Fund's Assets or would materially impair the liquidity, value or
other investment characteristics of the Fund's Assets, it shall be the duty of
the Delegate to provide information regarding the particular circumstances
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and to act only in accordance with Instructions of the Fund or its Investment
Advisor with respect to such liquidation or other withdrawal.
7. Direction as to Eligible Foreign Custodian. Notwithstanding this Delegation
Schedule, the Fund, acting through its Board, its Investment Advisor or its
other authorized representative, may direct the Delegate to place and maintain
the Fund's Assets with a particular Eligible Foreign Custodian, including
without limitation with respect to investment in countries as to which the
Custodian will not provide delegation services. In such event, the Delegate
shall be entitled to rely on any such instruction as an Instruction under the
terms of the Custodian Agreement and shall have no duties under this Delegation
Schedule with respect to such arrangement save those that it may undertake
specifically in writing with respect to each particular instance.
8. Standard of Care. In carrying out its duties under this Delegation Schedule,
the Delegate agrees to exercise reasonable care, prudence and diligence such as
a person having responsibility for safekeeping the Fund's Assets would exercise.
9. Representations. The Delegate hereby represents and warrants that it is a
U.S. Bank and that this Delegation Schedule has been duly authorized, executed
and delivered by the Delegate and is a legal, valid and binding agreement of the
Delegate.
The Fund hereby represents and warrants that its Board of Trustees
has determined that it is reasonable to rely on the Delegate to perform the
delegated responsibilities provided for herein and that this Delegation Schedule
has been duly authorized, executed and delivered by the Fund and is a legal,
valid and binding agreement of the Fund.
10. Effectiveness; termination. This Delegation Schedule shall be effective as
of the date on which this Delegation Schedule shall have been accepted by the
Delegate, as indicated by the date set forth below the Delegate's signature.
This Delegation Schedule may be terminated at any time, without penalty, by
written notice from the terminating party to the non-terminating party. Such
termination shall be effective on the 30th calendar day following the date on
which the non-terminating party shall receive the foregoing notice. The
foregoing to the contrary notwithstanding, this Delegation Schedule shall be
deemed to have been terminated concurrently with the termination of the
Custodian Agreement.
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11. Notices. Notices and other communications under this Delegation Schedule are
to be made in accordance with the arrangements designated for such purpose under
the Custodian Agreement unless otherwise indicated in a writing referencing this
Delegation Schedule and executed by both parties.
12. Definitions. Capitalized terms not otherwise defined in this Delegation
Schedule have the following meanings:
a. Country Risk - shall have the meaning set forth in Section 9.1.2 of
the Custodian Agreement.
b. Eligible Foreign Custodian - shall have the meaning set forth in
Rule 17f-5(a)(1) of the 1940 Act and shall also include a U.S. Bank.
c. Fund's Assets - shall mean any of the Fund's investments (including
foreign currencies) for which the primary market is outside the United
States, and such cash and cash equivalents as are reasonably necessary
to effect the Fund's transactions in such investments.
d. Instructions - shall have the meaning set forth in the Custodian
Agreement.
e. Securities Depository - shall have the meaning set forth in Rule
17f-7 of the 1940 Act.
f. Sovereign Risk - shall have the meaning set forth in Section 9.1.3
of the Custodian Agreement.
g. U.S. Bank - shall mean a bank which qualifies to serve as a
custodian of assets of investment companies under Section 17(f) of the
1940 Act.
13. Governing Law and Jurisdiction. This Delegation Schedule shall be construed
in accordance with the laws of the State of New York. The parties hereby submit
to the non-exclusive jurisdiction of the Federal courts sitting in the State of
New York or the Commonwealth of Massachusetts
44
or of the state courts of either such State or such Commonwealth. The parties
expressly disclaim application of the Uniform Computer Information Transactions
Act to this Delegation Schedule.
14. Fees. Delegate shall perform its functions under this Delegation Schedule
for the compensation determined under the Custodian Agreement.
15. Integration. This Delegation Schedule sets forth all of the Delegate's
duties with respect to the selection and monitoring of Eligible Foreign
Custodians, the administration of contracts with Eligible Foreign Custodians,
the withdrawal of assets from Eligible Foreign Custodians and the issuance of
reports in connection with such duties. The terms of the Custodian Agreement
shall apply generally as to matters not expressly covered in this Delegation
Schedule, including dealings with the Eligible Foreign Custodians in the course
of discharge of the Delegate's obligations under the Custodian Agreement.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
duly executed as of the date first above written.
The undersigned acknowledges that (I/we) have received a copy of this document
BROWN BROTHERS HARRIMAN & CO. JANUS ADVISER
By: By:
------------------------------- ----------------------------------
Name: Name: Kelley Abbott Howes
Title: Title: Vice President
Date: Date:
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