Exhibit 99.2(j)
Custodian Contract
Between
Orbitex Life Sciences & Biotechnology
Fund, Inc.
and
Circle Trust Company
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TABLE OF CONTENTS
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1. Employment of Custodian and Property to be Held by It...................................................1
2. Duties of the Custodian with Respect to Property of the Fund Held by the
Custodian in the United States..........................................................................1
2.1 Holding Securities.............................................................................1
2.2 Delivery of Securities.........................................................................2
2.3 Registration of Securities.....................................................................3
2.4 Bank Accounts..................................................................................4
2.5 Availability of Federal Funds..................................................................4
2.6 Collection of Income...........................................................................4
2.7 Payment of Fund Monies.........................................................................4
2.8 Liability for Payment in Advance of Receipt of Securities Purchased............................5
2.9 Deposit of Fund Assets in U.S. Securities Systems..............................................5
2.10 Fund Assets Held in the Custodian's Direct Paper System........................................6
2.11 Segregated Account.............................................................................7
2.12 Ownership Certificates for Tax Purposes........................................................7
2.13 Proxies........................................................................................8
2.14 Communications Relating to Fund Securities.....................................................8
3. Duties of the Custodian with Respect to Property of the Fund Held Outside of the
United States...........................................................................................8
3.1 Appointment of Foreign Sub-Custodians..........................................................8
3.2 Assets to be Held..............................................................................8
3.3 Foreign Securities Systems.....................................................................8
3.4 Holding Securities.............................................................................8
3.5 Agreements with Foreign Banking Institutions...................................................9
3.6 Access of Independent Accountants of the Fund..................................................9
3.7 Reports by Custodian...........................................................................9
3.8 Transactions in Foreign Custody Account........................................................9
3.9 Liability of Foreign Sub-Custodians............................................................9
3.10 Liability of Custodian........................................................................10
3.11 Reimbursement for Advances....................................................................10
3.12 Monitoring Responsibilities...................................................................10
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TABLE OF CONTENTS
(continued)
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3.13 Branches of U.S. Banks........................................................................10
3.14 Tax Law.......................................................................................10
4. Payments for Sales or Repurchases of Shares of the Fund................................................11
5. Proper Instructions....................................................................................11
6. Actions Permitted without Express Authority............................................................11
7. Evidence of Authority..................................................................................12
8. Duties of Custodian with Respect to the Books of Account and Calculation of Net
Asset Value and Net Income.............................................................................12
9. Records................................................................................................12
10. Opinion of Fund's Independent Accountant...............................................................12
11. Examination and Reports to Fund by Independent Public Accountants......................................13
12. Compensation of Custodian..............................................................................13
13. Responsibility of Custodian............................................................................13
14. Appointment of Agents..................................................................................14
15. Effective Period, Termination and Amendment............................................................14
16. Successor Custodian....................................................................................15
17. Interpretive and Additional Provisions.................................................................15
18. Connecticut Law to Apply...............................................................................16
19. Prior Contracts........................................................................................16
20. Reproduction of Documents..............................................................................16
21. Shareholder Communications Election....................................................................16
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Custodian Contract
This Contract between Orbitex Life Sciences & Biotechnology Fund, Inc., a
Maryland corporation, having its principal place of business at 410 Park Avenue,
New York, New York hereinafter called the "Fund", and Circle Trust Company, a
Connecticut trust company, having its principal place of business at Metro
Center, One Station Place, Stamford, Connecticut, hereinafter called the
"Custodian".
W I T N E S S E T H:
WHEREAS, the Fund is a closed-end management company authorized to issue
shares of common stock; and
WHEREAS, the Custodian is experienced in providing custody services to
mutual funds and possesses facilities sufficient to provide such services; and
WHEREAS, the Fund desires to avail itself of the experience, assistance and
facilities of the Custodian, and the Custodian is willing to furnish such
services in accordance with the terms hereinafter set forth.
NOW THEREFORE, in consideration of the mutual covenants and agreements
hereinafter contained, the parties hereto agree as follows:
1. Employment of Custodian and Property to be Held by It
The Fund hereby employs the Custodian as the custodian of the assets of the
Fund, including securities which the Fund desires to be held in places within
the United States ("domestic securities") and securities it desires to be held
outside the United States ("foreign securities") pursuant to the provisions of
the Fund's Articles of Incorporation. The Fund agrees to deliver to the
Custodian all securities and cash, and all payments of principal or capital
distributions received by it with respect to all securities owned by it from
time to time, and the cash consideration received by it for such new or treasury
shares of beneficial interest of the Fund ("Shares") as may be issued or sold
from time to time. The Custodian shall not be responsible for any property of
the Fund held or received by the Fund and not delivered to the Custodian.
Upon receipt of "Proper Instructions" (within the meaning of Article 5),
the Custodian shall on behalf of the Fund from time to time employ one or more
sub-custodians, located in the United States but only in accordance with an
applicable vote by the Board of Directors of the Fund and provided that the
Custodian shall have no more or less responsibility or liability to the Fund on
account of any actions or omissions of any sub-custodian than any such
sub-custodian has to the Custodian. The Custodian may employ as sub-custodian
for the Fund's foreign securities the foreign banking institutions and foreign
securities depositories designated in Schedule A hereto but only in accordance
with the provisions of Article 3.
2. Duties of the Custodian with Respect to Property of the Fund Held by the
Custodian in the United States
2.1 Holding Securities. The Custodian shall hold and physically segregate in a
separate account for the Fund all non-cash property, to be held by it in
the United States including all domestic securities owned by the Fund,
other than (a) securities which are maintained pursuant to Section 2.10 in
a clearing agency which acts as a securities depository or in a book-entry
system
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authorized by the U.S. Department of the Treasury (each, a "U.S. Securities
System") and (b) commercial paper of an issuer for which the Custodian acts
as issuing and paying agent ("Direct Paper") which is deposited and/or
maintained in the Direct Paper System of the Custodian (the "Direct Paper
System") pursuant to Section 2.11. Such account shall at all times be
physically segregated from those of any other person or persons.
2.2 Delivery of Securities. The Custodian shall release and deliver domestic
securities owned by the Fund held by the Custodian or in a U.S. Securities
System account of the Custodian or in the Custodian's Direct Paper book
entry system account ("Direct Paper System Account") only upon receipt of
Proper Instructions from the Fund, which may be continuing instructions
when deemed appropriate by the parties, and only in the following cases:
1. Upon sale of such securities for the account of the Fund and receipt
of payment therefor;
2. Upon the receipt of payment in connection with any repurchase
agreement related to such securities entered into by the Fund;
3. In the case of a sale effected through a U.S. Securities System, in
accordance with the provisions of Section 2.10 hereof;
4. To the depository agent in connection with tender or other similar
offers for securities of the Fund;
5. To the issuer thereof or its agent when such securities are called,
redeemed, retired or otherwise become payable; provided that, in any
such case, the cash or other consideration is to be delivered to the
Custodian;
6. To the issuer thereof, or its agent, for transfer into the name of the
Fund or into the name of any nominee or nominees of the Custodian or
into the name or nominee name of any agent appointed pursuant to
Section 2.9 or into the name or nominee name of any sub-custodian
appointed pursuant to Article 1; or for exchange for a different
number of bonds, certificates or other evidence representing the same
aggregate face amount or number of units; provided that, in any such
case, the new securities are to be delivered to the Custodian;
7. Upon the sale of such securities for the account of the Fund, to the
broker or its clearing agent, against a receipt, for examination in
accordance with "street delivery" custom; provided that in any such
case, the Custodian shall have no responsibility or liability for any
loss arising from the delivery of such securities prior to receiving
payment for such securities, except as may arise from the Custodian's
own negligence or willful misconduct;
8. For exchange or conversion pursuant to any plan of merger,
consolidation, recapitalization, reorganization or readjustment of the
securities of the issuer of such securities, or pursuant to provisions
for conversion contained in such securities, or pursuant to any
deposit agreement; provided that, in any such case, the new securities
and cash, if any, are to be delivered to the Custodian;
9. In the case of warrants, rights or similar securities, the surrender
thereof in the exercise of such warrants, rights or similar securities
or the surrender of interim receipts or
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temporary securities for definitive securities; provided that, in any
such case, the new securities and cash, if any, are to be delivered to
the Custodian;
10. For delivery in connection with any loans of securities made by the
Fund, but only against receipt of adequate collateral as agreed upon
from time to time by the Custodian and the Fund, which may be in the
form of cash or obligations issued by the United States government,
its agencies or instrumentalities, except that in connection with any
loans for which collateral is to be credited to the Custodian's
account in the book-entry system authorized by the U.S. Department of
the Treasury, the Custodian will not be held liable or responsible for
the delivery of securities owned by the Fund prior to the receipt of
such collateral;
11. For delivery as security in connection with any borrowings by the Fund
requiring a pledge of assets by the Fund, but only against receipt of
amounts borrowed;
12. For delivery in accordance with the provisions of any agreement among
the Fund, the Custodian and a broker-dealer registered under the
Securities Exchange Act of 1934 (the "Exchange Act") and a member of
The National Association of Securities Dealers, Inc. ("NASD"),
relating to compliance with the rules of The Options Clearing
Corporation and of any registered national securities exchange, or of
any similar organization or organizations, regarding escrow or other
arrangements in connection with transactions by Fund;
13. For delivery in accordance with the provisions of any agreement among
the Fund, the Custodian, and a Futures Commission Merchant registered
under the Commodity Exchange Act, relating to compliance with the
rules of the Commodity Futures Trading Commission and/or any Contract
Market, or any similar organization or organizations, regarding
account deposits in connection with transactions by the Fund;
14. Upon receipt of instructions from the transfer agent ("Transfer
Agent") for the Fund, for delivery to such Transfer Agent or to the
holders of shares in connection with distributions in kind, as may be
described from time to time in the currently effective prospectus and
statement of additional information of the Fund ("Prospectus"), in
satisfaction of requests by holders of Shares for repurchase; and
15. For any other proper corporate purpose, but only upon receipt of, in
addition to Proper Instructions from the Fund, a certified copy of a
resolution of the Board of Directors or of the Executive Committee
signed by an officer of the Fund and certified by the Secretary or
Assistant Secretary, specifying the securities to be delivered,
setting forth the purpose for which such delivery is to be made,
declaring such purpose to be a proper corporate purpose, and naming
the person or persons to whom delivery of such securities shall be
made.
2.3 Registration of Securities. Domestic securities held by the Custodian
(other than bearer securities) shall be registered in the name of the Fund
or in the name of any nominee of the Fund or of any nominee of the
Custodian which nominee shall be assigned exclusively to the Fund, unless
the Fund has authorized in writing the appointment of a nominee to be used
in common with other registered investment companies having the same
investment adviser as the Fund, or in the name or nominee name of any agent
appointed pursuant to Section 2.9 or in the name or nominee name of any
sub-custodian appointed pursuant to Article 1. All securities accepted by
the Custodian on behalf of the Fund under the terms of this Contract shall
be in "street name" or
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other good delivery form. If, however, the Fund directs the Custodian to
maintain securities in "street name", the Custodian shall utilize its
reasonable best efforts only to timely collect income due the Fund on such
securities and to notify the Fund on a reasonable best efforts basis only
of relevant corporate actions including, without limitation, pendency of
calls, maturities, tender or exchange offers.
2.4 Bank Accounts. The Custodian shall open and maintain a separate bank
account or accounts in the United States in the name of the Fund, subject
only to draft or order by the Custodian acting pursuant to the terms of
this Contract, and shall hold in such account or accounts, subject to the
provisions hereof, all cash received by it from or for the account of the
Fund, other than cash maintained by the Fund in a bank account established
and used in accordance with Rule 17-f3 under the Investment Company Act of
1940. Funds held by the Custodian for the Fund may be deposited by it to
its credit as Custodian in the Banking Department of the Custodian or in
such other banks or trust companies as it may in its discretion deem
necessary or desirable; provided, however, that every such bank or trust
company shall be qualified to act as a custodian under the Investment
Company Act of 1940 and that each such bank or trust company and the funds
to be deposited with each such bank or trust company shall on behalf of the
Fund be approved by vote of a majority of the Board of Directors of the
Fund. Such funds shall be deposited by the Custodian in its capacity as
Custodian and shall be withdrawable by the Custodian only in that capacity.
2.5 Availability of Federal Funds. Upon mutual agreement between the Fund and
the Custodian, the Custodian shall, upon the receipt of Proper Instructions
from the Fund, make federal funds available to the Fund as of specified
times agreed upon from time to time by the Fund and the Custodian in the
amount of checks received in payment for Shares the Fund which are
deposited into the Fund's account.
2.6 Collection of Income. Subject to the provisions of Section 2.3, the
Custodian shall collect on a timely basis all income and other payments
with respect to registered domestic securities held hereunder to which the
Fund shall be entitled either by law or pursuant to custom in the
securities business, and shall collect on a timely basis all income and
other payments with respect to bearer domestic securities if, on the date
of payment by the issuer, such securities are held by the Custodian or its
agent thereof and shall credit such income, as collected, to the Fund's
custodian account. Without limiting the generality of the foregoing, the
Custodian shall detach and present for payment all coupons and other income
items requiring presentation as and when they become due and shall collect
interest when due on securities held hereunder. Income due the Fund on
securities loaned pursuant to the provisions of Section 2.2 (10) shall be
the responsibility of the Fund. The Custodian will have no duty or
responsibility in connection therewith, other than to provide the Fund with
such information or data as may be necessary to assist the Fund in
arranging for the timely delivery to the Custodian of the income to which
the Fund is properly entitled.
2.7 Payment of Fund Monies. Upon receipt of Proper Instructions from the Fund,
which may be continuing instructions when deemed appropriate by the
parties, the Custodian shall pay out monies of the Fund in the following
cases only:
1. Upon the purchase of domestic securities, options, futures contracts
or options on futures contracts for the account of the Fund but only
(a) against the delivery of such securities or evidence of title to
such options, futures contracts or options on futures contracts to the
Custodian (or any bank, banking firm or trust company doing business
in the United States or abroad which is qualified under the Investment
Company Act of 1940, as
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amended, to act as a custodian and has be designated by the Custodian
as its agent for this purpose) registered in the name of the Fund or
in the name of a nominee of the Custodian referred to in Section 2.3
hereof or in proper form for transfer; (b) in the case of a purchase
effected through a U.S. Securities System, in accordance with the
conditions set forth in Section 2.10 hereof; (c) in the case of a
purchase involving the Direct Paper System, in accordance with the
conditions set forth in Section 2.11; (d) in the case of repurchase
agreements entered into between the Fund and the Custodian, or another
bank, or a broker-dealer which is a member of NASD, (i) against
delivery of the securities either in certificate form or through an
entry crediting the Custodian's account at the Federal Reserve Bank
with such securities or (ii) against delivery of the receipt
evidencing purchase by the Fund of securities owned by the Custodian
along with written evidence of the agreement by the Custodian to
repurchase such securities from the Fund or (e) for transfer to a time
deposit account of the Fund in any bank, whether domestic or foreign;
such transfer may be effected prior to receipt of a confirmation from
a broker and/or the applicable bank pursuant to Proper Instructions
from the Fund as defined in Article 5;
2. In connection with conversion, exchange or surrender of securities
owned by the Fund as set forth in Section 2.2 hereof;
3. For the repurchase of Shares issued by the Fund as set forth in
Article 4 hereof;
4. For the payment of any expense or liability incurred by the Fund,
including but not limited to the following payments for the account of
the Fund: interest, taxes, management, accounting, transfer agent and
legal fees, and operating expenses of the Fund whether or not such
expenses are to be in whole or part capitalized or treated as deferred
expenses;
5. For the payment of any dividends on Shares of the Fund declared
pursuant to the governing documents of the Fund;
6. For payment of the amount of dividends received in respect of
securities sold short;
7. For any other proper purpose, but only upon receipt of, in addition to
Proper Instructions from the Fund, a certified copy of a resolution of
the Board of Directors or of the Executive Committee of the Fund
signed by an officer of the fund and certified by its Secretary or an
Assistant Secretary, specifying the amount of such payment, setting
for the purpose for which such payment is to be made, declaring such
purpose to be a proper purpose, and naming the person or persons to
whom such payment is to be made.
2.8 Liability for Payment in Advance of Receipt of Securities Purchased. Except
as specifically stated otherwise in this Contract, in any and every case
where payment for purchase of domestic securities for the account of the
Fund is made by the Custodian in advance of receipt of the securities
purchased in the absence of specific written instructions from the Fund to
so pay in advance, the Custodian shall be absolutely liable to the Fund for
such securities to the same extent as if the securities had been received
by the Custodian.
2.9 Deposit of Fund Assets in U.S. Securities Systems. The Custodian may
deposit and/or maintain securities owned by the Fund in a clearing agency
registered with the Securities and Exchange Commission under Section 17A of
the Securities Exchange Act of 1934, which acts as a securities depository,
or in the book-entry system authorized by the U.S. Department of the
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Treasury and certain federal agencies, collectively referred to herein as
"U.S. Securities System" in accordance with applicable Federal Reserve
Board and Securities and Exchange Commission rules and regulations, if any,
and subject to the following provisions:
1. The Custodian may keep securities of the Fund in a U.S. Securities
System provided that such securities are represented in an account
("Account") of the Custodian in the U.S. Securities System which shall
not include any assets of the Custodian other than assets held as a
fiduciary, custodian or otherwise for customers;
2. The records of the custodian with respect to securities of the Fund
which are maintained in a U.S. Securities System shall identify by
book-entry those securities belonging to the Fund;
3. The Custodian shall pay for securities purchased for the account of
the Fund upon (i) receipt of advice from the U.S. Securities System
that such securities have been transferred to the Account, and (ii)
the making of an entry on the records of the Custodian to reflect such
payment and transfer for the account of the Fund. The Custodian shall
transfer securities sold for the account of the Fund upon (i) receipt
of advice from the U.S. Securities System that payment for such
securities has been transferred to the Account, and (ii) the making of
an entry on the records of the Custodian to reflect such transfer and
payment for the account of the Fund. Copies of all advices from the
U.S. Securities System of transfers of securities for the account of
the Fund shall identify the Fund, be maintained for the Fund by the
Custodian and be provided to the Fund at its request. Upon request,
the Custodian shall furnish the Fund confirmation of each transfer to
or from the account of the Fund in the form of a written advice or
notice and shall furnish to the Fund copies of daily transaction
sheets reflecting each day's transactions in the U.S. Securities
System for the account of the Fund;
4. The Custodian shall provide the Fund with any report obtained by the
Custodian on the U.S. Securities System's accounting system, internal
accounting control and procedures for safeguarding securities
deposited in the U.S. Securities System;
5. The Custodian shall have received from the Fund the initial or annual
certificate, as the case may be, required by Article 14 hereof;
6. Anything to the contrary in this Contract notwithstanding, the
Custodian shall be liable to the Fund for any loss or damage to the
Fund resulting from use of the U.S. Securities System by reason of any
negligence, misfeasance or misconduct of the Custodian or any of its
agents or of any of its or their employees or from failure of the
Custodian or any such agent to enforce effectively such rights as it
may have against the U.S. Securities System; at the election of the
Fund, it shall be entitled to be subrogated to the rights of the
Custodian with respect to any claim against the U.S. Securities System
or any other person which the Custodian may have as a consequence of
any such loss or damage if and to the extent that the Fund has not
been made whole for any such loss or damage.
2.10 Fund Assets Held in the Custodian's Direct Paper System. The Custodian may
deposit and/or maintain securities owned by the Fund in the Direct Paper
System of the Custodian subject to the following provisions:
1. No transaction relating to securities in the Direct Paper System will
be effected in the absence of Proper Instructions from the Fund;
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2. The Custodian may keep securities of the Fund in the Direct Paper
System only if such securities are represented in an account
("Account") of the Custodian in the Direct Paper System which shall
not include any assets of the Custodian other than assets held as a
fiduciary, custodian or otherwise for customers;
3. The records of the Custodian with respect to securities of the Fund
which are maintained in the Direct Paper System shall identify by
book-entry those securities belonging to the Fund;
4. The Custodian shall pay for securities purchased for the account of
the Fund upon the making of an entry on the records of the Custodian
to reflect such payment and transfer of securities to the account of
the Fund. The Custodian shall transfer securities sold for the account
of the Fund upon the making of an entry on the records of the
Custodian to reflect such transfer and receipt of payment for the
account of the Fund;
5. The Custodian shall furnish the Fund confirmation of each transfer to
or from the account of the Fund, in the form of a written advice or
notice, of Direct Paper on the next business day following such
transfer and shall furnish to the Fund copies of daily transaction
sheets reflecting each day's transaction in the U.S. Securities System
for the account of the Fund;
6. The Custodian shall provide the Fund with any report on its system of
internal accounting control as the Fund may reasonably request from
time to time.
2.11 Segregated Account. The Custodian shall upon receipt of Proper Instructions
from the Fund establish and maintain a segregated account or accounts for
and on behalf of the Fund, into which account or accounts may be
transferred cash and/or securities, including securities maintained in an
account by the Custodian pursuant to Section 2.10 hereof, (i) in accordance
with the provisions of any agreement among the Fund, the Custodian and a
broker-dealer registered under the Exchange Act and a member of the NASD
(or any futures commission merchant registered under the Commodity Exchange
Act), relating to compliance with the rules of The Options Clearing
Corporation and of any registered national securities exchange (or the
Commodity Futures Trading Commission or any registered contract market), or
of any similar organization or organizations, regarding escrow or other
arrangements in connection with transactions by the Fund, (ii) for purposes
of segregating cash or government securities in connection with options
purchased, sold or written by the Fund or commodity futures contracts or
options thereon purchased or sold by the Fund, (iii) for the purposes of
compliance by the Fund with the procedures required by Investment Company
Release No. 10666, or any subsequent release or releases of the Securities
and Exchange Commission relating to the maintenance of segregated accounts
by registered investment companies and (iv) for other proper corporate
purposes, but only, in the case of clause (iv), upon receipt of, in
addition to Proper Instructions from the Fund, a certified copy of a
resolution of the Board of Directors or of the Executive Committee signed
by an officer of the Fund and certified by the Secretary or an Assistant
Secretary, setting forth the purpose or purposes of such segregated account
and declaring such purposes to be proper corporate purposes.
2.12 Ownership Certificates for Tax Purposes. The Custodian shall execute
ownership and other certificates and affidavits for all federal and state
tax purposes in connection with receipt of income or other payments with
respect to domestic securities of the Fund held by it and in connection
with transfers of securities.
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2.13 Proxies. The Custodian shall, with respect to the domestic securities held
hereunder, cause to be promptly executed by the registered holder of such
securities, if the securities are registered otherwise than in the name of
the Fund or a nominee of the Fund, all proxies, without indication of the
manner in which such proxies are to be voted, and shall promptly deliver to
the Fund such proxies, all proxy soliciting materials and all notices
relating to such securities.
2.14 Communications Relating to Fund Securities. Subject to the provisions of
Section 2.3, the Custodian shall transmit promptly to the Fund all written
information (including, without limitation, pendency of calls and
maturities of domestic securities and expiration of rights in connection
therewith and notices of exercise of call and put options written by the
Fund and the maturity of futures contracts purchased or sold by the Fund)
received by the Custodian from issuers of the securities being held for the
Fund. With respect to tender or exchange offers, the Custodian shall
transmit promptly to the Fund all written information received by the
Custodian from issuers of the securities whose tender or exchange is sought
and from the party (or his agents) making the tender or exchange offer. If
the Fund desires to take action with respect to any tender offer, exchange
offer or any other similar transaction, the Fund shall notify the Custodian
at least three business days prior to the date on which the Custodian is to
take such action.
3. Duties of the Custodian with Respect to Property of the Fund Held Outside
of the United States
3.1 Appointment of Foreign Sub-Custodians. The Fund hereby authorizes and
instructs the custodian to employ as sub-custodians for the Fund's
securities and other assets maintained outside the United States the
foreign banking institutions and foreign securities depositories designated
on Schedule A hereto ("foreign sub-custodians"). Upon receipt of "Proper
Instructions", as defined in Section 5 of this Contract, together with a
certified resolution of the Fund's Board of Directors, the Custodian and
the Fund may agree to amend Schedule A hereto from time to time to
designate additional foreign banking institutions and foreign securities
depositories to act as sub-custodian. Upon receipt of Proper Instructions,
the Fund may instruct the Custodian to cease the employment of any one or
more such sub-custodians for maintaining custody of the Fund's assets.
3.2 Assets to be Held. The Custodian shall limit the securities and other
assets maintained in the custody of the foreign sub-custodians to: (a)
"foreign assets", as defined in paragraph (a)(2) of Rule 17f-5 under the
Investment Company Act of 1940 and (b) cash and cash equivalents in such
amounts as the Custodian or the Fund may determine to be reasonably
necessary to effect the Fund's foreign securities transactions. The
Custodian shall identify on its books as belonging to the Fund, the foreign
securities of the Fund held by each foreign sub-custodian.
3.3 Foreign Securities Systems. Except as may otherwise be agreed upon in
writing by the Custodian and the Fund, assets of the Fund shall be
maintained in a clearing agency which acts as a securities depository or in
a book-entry system for the central handling of securities located outside
the United States (each a "Foreign Securities System") only through
arrangements implemented by the foreign banking institutions serving as
sub-custodians pursuant to the terms hereof (Foreign Securities Systems and
U.S. Securities Systems are collectively referred to herein as the
"Securities Systems"). Where possible, such arrangements shall include
entry into agreements containing the provisions set forth in Section 3.5
hereof.
3.4 Holding Securities. The Custodian may hold securities and other non-cash
property for all of its customers, including the Fund, with a foreign
sub-custodian in a single account that is identified
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as belonging to the Custodian for the benefit of its customers; provided
however, that (i) the records of the Custodian with respect to securities
and other non-cash property of the Fund which are maintained in such
account shall identify by book-entry those securities and other non-cash
property belonging to the Fund and (ii) the Custodian shall require that
securities and other non-cash property so held by the foreign sub-custodian
be held separately from any assets of the foreign sub-custodian or of
others.
3.5 Agreements with Foreign Banking Institutions. Each agreement with a foreign
banking institution shall provide that: (a) the assets of the Fund will not
be subject to any right, charge, security interest, lien or claim of any
kind in favor of the foreign banking institution or its creditors or agent,
except a claim of payment for their safe custody or administration; (b)
beneficial ownership for the assets of the Fund will be freely transferable
without the payment of money or value other than for custody or
administration; (c) adequate records will be maintained identifying the
assets as belonging to the Fund; (d) officers of or auditors employed by,
or other representatives of the Custodian, including to the extent
permitted under applicable law the independent public accountants for the
Fund, will be given access to the books and records of the foreign banking
institution relating to its actions under its agreement with the Custodian;
and (e) assets of the Fund held by the foreign sub-custodian will be
subject only to the instructions of the Custodian or its agents.
3.6 Access of Independent Accountants of the Fund. Upon request of the Fund,
the Custodian will use its best efforts to arrange for the independent
accountants of the Fund to be afforded access to the books and records of
any foreign banking institution employed as a foreign sub-custodian insofar
as such books and records relate to the performance of such foreign banking
institution under its agreement with the Custodian.
3.7 Reports by Custodian. The Custodian will supply to the Fund from time to
time, as mutually agreed upon, statements in respect of the securities and
other assets of the Fund held by foreign sub-custodians, including but not
limited to, an identification of entities having possession of the Fund's
securities and other assets and advices or notifications of any transfers
of securities to or from each custodial account maintained by a foreign
banking institution for the Custodian on behalf of the Fund indicating, as
to securities acquired for the Fund, the identity of the entity having
physical possession of such securities.
3.8 Transactions in Foreign Custody Account. (a) Except as otherwise provided
in paragraph (b) of this Section 3.8, the provision of Sections 2.2 and 2.7
of this Contract shall apply, mutatis mutandis to the foreign securities of
the Fund held outside the United States by foreign sub-custodians. (b)
Notwithstanding any provision of this Contract to the contrary, settlement
and payment for securities received for the account of the Fund and
delivery of securities maintained for the account of the Fund may be
effected in accordance with the customary established securities trading or
securities processing practices and procedures in the jurisdiction or
market in which the transaction occurs, including, without limitation,
delivering securities to the purchaser thereof or to a dealer therefor (or
an agent for such purchaser or dealer) against a receipt with the
expectation of receiving later payment for such securities from such
purchaser or dealer. (c) Securities maintained in the custody of a foreign
sub-custodian may be maintained in the name of such entity's nominee to the
same extent as set forth in Section 2.3 of this Contract, and the Fund
agrees to hold any such nominee harmless from any liability as a holder of
record of such securities.
3.9 Liability of Foreign Sub-Custodians. Each agreement pursuant to which the
Custodian employs a foreign banking institution as a foreign sub-custodian
shall require the institution to exercise
9
<PAGE>
reasonable care in the performance of its duties and to indemnify, and hold
harmless, the Custodian and the Fund from and against any loss, damage,
cost, expense, liability or claim arising out of or in connection with the
institution's performance of such obligations. At the election of the Fund,
it shall be entitled to be subrogated to the rights of the Custodian with
respect to any claims against a foreign banking institution as a
consequence of any such loss, damage, cost, expense, liability or claim if
and to the extent that the Fund has not been made whole for any such loss,
damage, cost, expense, liability or claim.
3.10 Liability of Custodian. The Custodian shall be liable for the acts or
omissions of a foreign banking institution to the same extent as set forth
with respect to sub-custodians generally in this Contract and, regardless
of whether assets are maintained in the custody of a foreign banking
institution, a foreign securities depository or a branch of a U.S. bank as
contemplated by paragraph 3.13 hereof, the Custodian shall not be liable
for any loss, damage, cost, expense, liability or claim resulting from
nationalization, expropriation, currency restrictions, or acts of war or
terrorism or any loss where the sub-custodian has otherwise exercised
reasonable care.
3.11 Reimbursement for Advances. If the Fund requires the Custodian to advance
cash or securities for any purpose for the benefit of the Fund including
the purchase or sale of foreign exchange or of contracts for foreign
exchange, or in the event that the Custodian or its nominee shall incur or
be assessed any taxes, charges, expenses, assessments, claims or
liabilities in connection with the performance of this Contract, except
such as may arise from its or its nominee's own negligent action, negligent
failure to act or willful misconduct, any property at any time held for the
account of the Fund shall be security therefor and should the Fund fail to
repay the Custodian promptly, the Custodian shall be entitled to utilize
available cash and to dispose of the Fund's assets to the extent necessary
to obtain reimbursement.
3.12 Monitoring Responsibilities. The Custodian shall furnish annually to the
Fund, during the month of June, information concerning the foreign
sub-custodians employed by the Custodian. Such information shall be similar
in kind and scope to that furnished to the Fund in connection with the
initial approval of this Contract. In addition, the Custodian will promptly
inform the Fund in the event that the Custodian learns of a material
adverse change in the financial condition of a foreign sub-custodian or any
material loss of assets of the Fund or in the case of any foreign
sub-custodian not the subject of an exemptive order from the Securities and
Exchange Commission is notified by such foreign sub-custodian that there
appears to be a substantial likelihood that its shareholders' equity will
decline below $200 million (U.S. dollars or the equivalent thereof) or that
its shareholders' equity has declined below $200 million (in each case
computed in accordance with generally accepted U.S. accounting principles).
3.13 Branches of U.S. Banks. Except as otherwise set forth in this Contract, the
provisions hereof shall not apply where the custody of the Fund's assets
are maintained in a foreign branch of banking institution which is a "bank"
as defined by Section 2(a)(5) of the Investment Company Act of 1940 meeting
the qualification set forth in Section 26(a) of the said Act. The
appointment of any such branch as a sub-custodian shall be governed by
paragraph 1 of this Contract.
3.14 Tax Law. The Custodian shall have no responsibility or liability for any
obligations now or hereafter imposed on the Fund or the Custodian as
custodian of the Fund by the tax law of the United States of America or any
state or political subdivision thereof. It shall be the responsibility of
the Fund to notify the Custodian of the obligations imposed on the Fund or
the Custodian as custodian of the Fund by the tax law of jurisdictions
other than those mentioned in the above sentence, including responsibility
for withholding and other taxes, assessments or other governmental charges,
certifications and governmental reporting. The sole responsibility of the
10
<PAGE>
Custodian with regard to such tax law shall be to use reasonable efforts to
assist the Fund with respect to any claim for exemption or refund under the
tax law of jurisdictions for which the Fund has provided such information.
4. Payments for Sales or Repurchases of Shares of the Fund
The Custodian shall receive from the distributor for the Shares or from the
Transfer Agent of the Fund and deposit into the account of the Fund such
payments as are received for issued or sold from time to time by the Fund.
The Custodian will provide timely notification to the Fund and the Transfer
Agent of any receipt by it of payments for Shares of the Fund.
From such funds as may be available for the purpose but subject to the
limitations of the Fund's Articles of Incorporation and any applicable
votes of the Board of Directors of the Fund pursuant thereto, the Custodian
shall, upon receipt of instructions from the Transfer Agent, make funds
available for payment to holders of Shares who have delivered to the
Transfer Agent a request for repurchase of their Shares. In connection with
the repurchase of Shares of the Fund, the Custodian is authorized upon
receipt of instructions from the Transfer Agent to wire funds to or through
a commercial bank designated by the repurchasing shareholders.
5. Proper Instructions
Proper Instructions as used throughout this Contract means a writing signed
or initialed by two or more persons jointly as the Board of Directors shall
have from time to time authorized. Each such writing shall set forth the
specific transaction or type of transaction involved, including a specific
statement of the purpose for which such action is requested. Oral
instructions will be considered Proper Instructions if the Custodian
reasonably believes them to have been given by the persons authorized to
give such instructions with respect to the transaction involved. The Fund
shall cause all oral instructions to be confirmed in writing. Upon receipt
of a certificate of the Secretary or an Assistant Secretary as to the
authorization by the Board of Directors of the Fund accompanied by a
detailed description of procedures approved by the Board of Directors,
Proper Instructions may include communications effected directly between
electro-mechanical or electronic devices provided that the Board of
Directors and the Custodian are satisfied that such procedures afford
adequate safeguards for the Fund's assets. For purposes of this Section,
Proper Instructions shall include instructions received by the Custodian
pursuant to any three-party agreement which requires a segregated asset
account in accordance with Section 2.12.
6. Actions Permitted without Express Authority
The custodian may in its discretion, without express authority from the
Fund:
1. make payments to itself or others for minor expenses of handling
securities or other similar items relating to its duties under this
Contract, provided that all such payments shall be accounted for to
the Fund;
2. surrender securities in temporary form for securities in definitive
form;
3. endorse for collection, in the name of the Fund, checks, drafts and
other negotiable instruments; and
11
<PAGE>
4. in general, attend to all non-discretionary details in connection with
the sale, exchange, substitution, purchase, transfer and other
dealings with the securities and property of the Fund, except as
otherwise directed by the Board of Directors of the Fund.
7. Evidence of Authority
The Custodian shall be protected in acting upon any instructions, notice,
request, consent, certificate or other instrument or paper believed by it
to be genuine and to have been properly executed by or on behalf of the
Fund. The Custodian may receive and accept a certified copy of a vote of
the Board of Directors of the Fund as conclusive evidence (a) of the
authority of any person to act in accordance with such vote or (b) of any
determination or of any action by the Board of Directors pursuant to the
Fund's Articles of Incorporation as described in such vote, and such vote
may be considered as in full force and effect until receipt by the
Custodian of written notice to the contrary.
8. Duties of Custodian with Respect to the Books of Account and Calculation of
Net Asset Value and Net Income
The Custodian shall cooperate with and supply necessary information to the
entity or entities appointed by the Board of Directors of the Fund to keep
the books of account of the Fund and/or compute the net asset value per
share of the outstanding shares of the Fund or, if directed in writing to
do so by the Fund, shall itself keep such books of account and/or compute
such net asset value per share. If so directed, the Custodian shall also
calculate daily the net income of the Fund as described in the Fund's
currently effective prospectus and shall advise the Fund and the Transfer
Agent daily of the total amounts of such net income and, if instructed in
writing by an officer of the Fund to do so, shall advise the Transfer Agent
periodically of the division of such net income among its various
components. The calculations of the net asset value per share and the daily
income of the Fund shall be made at the time or times described from time
to time in the Fund's currently effective prospectus.
9. Records
The Custodian shall create and maintain all records relating to its
activities and obligations under this Contract in such manner as will meet
the obligations of the Fund under the Investment Company Act of 1940, with
particular attention to Section 31 thereof and Rules 31a-1 and 31a-2
thereunder. All such records shall be the property of the Fund and shall at
all times during the regular business hours of the Custodian be open for
inspection by duly authorized officers, employees or agents of the Fund and
employees and agents of the Securities and Exchange Commission. The
Custodian shall, at the Fund's request, supply the Fund with a tabulation
of securities owned the Fund and held by the Custodian and shall, when
requested to do so by the Fund and for such compensation as shall be agreed
upon between the Fund and the Custodian, include certificate numbers in
such tabulations.
10. Opinion of Fund's Independent Accountant
The Custodian shall take all reasonable action, as the Fund may from time
to time request, to obtain from year to year favorable opinions from the
Fund's independent accountants with respect to its activities hereunder in
connection with the preparation of the Fund's Form N-SAR or other annual
reports to the Securities and Exchange Commission and with respect to any
other requirements of such Commission.
12
<PAGE>
11. Examination and Reports to Fund by Independent Public Accountants
The securities owned by the Fund and held by the Custodian shall be
verified by actual examination by an independent public accountant retained
by the Fund at least three times during each fiscal year of the Fund, at
least two of which shall be chosen by such accountant without prior notice
to the Fund. The Custodian shall provide the Fund, at such times as the
Fund may reasonably require, with reports by independent public accountants
on the accounting system, internal accounting control and procedures for
safeguarding securities, futures contracts and options on futures
contracts, including securities deposited and/or maintained in a Securities
Systems, relating to the services proved by the Custodian under this
contract; such reports, shall be of sufficient scope and in sufficient
detail, as may reasonably be required by the Fund to provide reasonable
assurance that any material inadequacies would be disclosed by such
examination, and, if there are no such inadequacies, the reports shall so
state.
12. Compensation of Custodian
The Custodian shall be entitled to reasonable compensation for its services
and expenses as Custodian, as agreed upon from time to time between the
Fund and the Custodian.
13. Responsibility of Custodian
So long as and to the extent that it is in the exercise of reasonable care,
the Custodian shall not be responsible for the title, validity or
genuineness of any property or evidence of title thereto received by it or
delivered by it pursuant to this Contract and shall be held harmless in
acting upon any notice, request, consent, certificate or other instrument
reasonably believed by it to be genuine and to be signed by the proper
party or parties, including any futures commission merchant acting pursuant
to the terms of a three-party futures of options agreement. The Custodian
shall be held to the exercise of reasonable care in carrying out the
provisions of this Contract, but shall be kept indemnified by and shall be
without liability to the Fund for any action taken or omitted by it in good
faith without negligence. It shall be entitled to rely on and may act upon
advice of counsel (who may be counsel for the Fund) on all matters, and
shall be without liability for any action reasonably taken or omitted
pursuant to such advice.
Except as may arise from the Custodian's own negligence or willful
misconduct or the negligence or willful misconduct of a sub-custodian or
agent, the Custodian shall be without liability, claim or expense resulting
from or caused by; (i) events or circumstances beyond the reasonable
control of the Custodian or any sub-custodian or Securities System or any
agent or nominee of any of the foregoing, including, without limitation,
nationalization or expropriation, imposition of currency controls or
restrictions, the interruption, suspension or restriction of trading on or
the closure of any securities market, power or other mechanical or
technological failures or interruptions, computer viruses or communications
disruptions, acts of war or terrorism, riots, revolutions, work stoppages,
natural disasters or other similar events or acts; (ii) errors by the Fund
or the Investment Advisor in their instructions to the Custodian provided
such instructions have been in accordance with this Contract; (iii) the
insolvency of or acts or omissions by a Securities System; (iv) any delay
or failure of any broker, agent or intermediary, central bank or other
commercially prevalent payment of clearing system to deliver to the
Custodian's sub-custodian or agent securities purchased or in the
remittance of payment made in connection with securities sold; (v) any
delay or failure of any company corporation, or other body in charge of
registering or transferring securities in the name of the Custodian, the
Fund, the Custodian's sub-custodians, nominees or agents or agents or any
consequential losses arising out of such delay or failure to transfer such
securities including non-receipt of bonus, dividends and rights and other
accretions
13
<PAGE>
or benefits; (vi) delays or inability to perform its duties due to any
disorder in market infrastructure with respect to any particular security
or Securities System; and (vii) any provision of any present or future law
or regulation or order of the United States of America, or any state
thereof, or any other country, or political subdivision thereof or of any
court of competent jurisdiction.
The Custodian shall be liable for the acts or omissions of a foreign
banking institution to the same extent as set forth with respect to
sub-custodians generally in this Contract.
If the Fund requires the Custodian to take any action with respect to
securities, which action involves the payment of money or which action may,
in the opinion of the Custodian, result in the Custodian or its nominee
assigned to the Fund being liable for the payment of money or incurring
liability of some other form, the Fund, as a prerequisite to requiring the
custodian to take such action, shall provide indemnity to the Custodian in
an amount and form satisfactory to the Custodian.
If the Fund requires the Custodian, its affiliates, subsidiaries or agents,
to advance cash or securities for any purpose (including but not limited to
securities settlements, foreign exchange contracts and assumed settlement)
or in the event that the Custodian or its nominee shall incur or be
assessed any taxes, charges, expenses, assessments, claims or liabilities
in connection with the performance of this Contract, except such as may
arise from its or its nominee's own negligent action, negligent failure to
act or willful misconduct, any property at any time held for the account of
the fund shall be security therefore and should the Fund fail to repay the
Custodian promptly, the Custodian shall be entitled to utilize available
cash and to dispose of the Fund assets to the extent necessary to obtain
reimbursement.
In no event shall the Custodian be liable for indirect, special,
consequential or punitive damages.
14. Appointment of Agents
The Custodian may at any time or times in its discretion appoint (and may
at any time remove) any other bank or trust company which is itself
qualified under the Investment Company Act of 1940, as amended, to act as a
custodian, as its agent to carry out such of the provisions of this
Agreement as the Custodian may from time to time direct; provided however,
that the appointment of any agent shall not relieve the Custodian of its
responsibilities or liabilities hereunder.
15. Effective Period, Termination and Amendment
This Contract shall become effective as of its execution, shall continue in
full force and effect until terminated as hereinafter provided, may be
amended at any time by mutual agreement of the parties hereto and may be
terminated by either party by an instrument in writing delivered or mailed,
postage prepaid to the other party, such termination to take effect not
sooner than thirty (30) days after the date of such delivery or mailing;
provided, however that the Custodian shall not act under Section 2.10
hereof in the absence of receipt of an initial certificate of the Secretary
or an Assistant Secretary that the Board of Directors of the Fund has
approved the initial use of a particular Securities System, as required by
Rule 17f-4 under the Investment company Act of 1940, as amended and that
the Custodian shall not act under Section 2.11 hereof in the absence of
receipt of an initial certificate of the Secretary or an Assistant
Secretary that the Board of Directors has approved the initial use of the
Direct Paper System; provided further, however, that the Fund shall not
amend or terminate this Contract in Contravention of any applicable federal
or
14
<PAGE>
state regulations, or any provision of its Articles of Incorporation, and
further provided, that the Fund may at any time by action of its Board of
Directors (i) substitute another bank or trust company for the Custodian by
giving notice as described above to the Custodian, or (ii) immediately
terminate this Contract in the event of the appointment of a conservator or
receiver for the Custodian by the Connecticut Department of Banking or upon
the happening of a like event at the direction of an appropriate regulatory
agency or court of competent jurisdiction.
Upon termination of the Contract, the Fund shall pay to the Custodian such
compensation as may be due as of the date of such termination and shall
likewise reimburse the Custodian for its costs, expenses and disbursements.
16. Successor Custodian
If a successor custodian for the Fund shall be appointed by the Board of
Directors of the Fund, the Custodian shall, upon termination, deliver to
such successor custodian at the office of the Custodian, duly endorsed and
in the form for transfer, all securities of the Fund then held by it
hereunder and shall transfer to an account of the successor custodian all
of the securities of the Fund held in a Securities System.
If no such successor custodian shall be appointed, the Custodian shall, in
like manner, upon receipt of a certified copy of a vote of the Board of
Directors of the Fund, deliver at the office of the Custodian and transfer
such securities, funds and other properties in accordance with such vote.
In the event that no written order designating a successor custodian or
certified copy of a vote of the Board of Directors shall have been
delivered to the Custodian on or before the date when such termination
shall become effective, then the Custodian shall have the right to deliver
to a bank or trust company, which is a "bank" as defined in the Investment
Company Act of 1940, doing business in the State of Connecticut, of its own
selection, having an aggregate capital, surplus, and undivided profits, as
shown by its last published report, of not less than $25,000,000, all
securities, funds and other properties held by the Custodian on behalf of
the Fund and all instruments held by the Custodian relative thereto and all
other property held by it under this Contract on behalf of the Fund and to
transfer to an account of such successor custodian all of the securities of
the Fund held in any Securities System. Thereafter, such bank or trust
company shall be the successor of the Custodian under this Contract.
In the event that securities, funds and other properties remain in the
possession of the Custodian after the date of termination hereof owing to
failure of the Fund to procure the certified copy of the vote referred to
or of the Board of Directors to appoint a successor custodian, the
Custodian shall be entitled to fair compensation for its services during
such period as the Custodian retains possession of such securities, funds
and other properties and the provisions of this Contract relating to the
duties and obligations of the Custodian shall remain in full force and
effect.
17. Interpretive and Additional Provisions
In connection with the operation of this contract, the Custodian and the
Fund may from time to time agree on such provisions interpretive of or in
addition to the provisions of this Contract as may in their joint opinion
be consistent with the general tenor of this Contract. Any such
interpretive or additional provisions shall be in a writing signed by both
parties and shall be annexed hereto, provided that no such interpretive or
additional provisions shall contravene any applicable federal or state
regulations or any provision of the Articles of Incorporation of the
15
<PAGE>
Fund. No interpretive or additional provisions made as provided in the
preceding sentence shall be deemed to be an amendment of this Contract.
18. Connecticut Law to Apply
This Contract shall be construed and the provisions thereof interpreted
under and in accordance with laws of the State of Connecticut.
19. Prior Contracts
This Contract supersedes and terminates, as of the date hereof, all prior
contracts between the Fund and the Custodian relating to the custody of the
Fund's assets.
20. Reproduction of Documents
This Contract and all schedules, exhibits, attachments and amendments
hereto may be reproduced by any photographic, photostatic, microfilm,
micro-card, miniature photographic or other similar process. The parties
hereto all/each agree that any such reproduction shall be admissible in
evidence as the original itself in any judicial or administrative
proceeding, whether or not the original is in existence and whether of not
such reproduction was made by a party in the regular course of business,
and that any enlargement, facsimile or further reproduction of such
reproduction shall likewise be admissible in evidence.
21. Shareholder Communications Election
Securities and Exchange Commission Rule 14b-2 requires banks which hold
securities for the account of customers to respond to requests by issuers
of securities for the names, addresses and holdings of beneficial owners of
securities of that issuer held by the bank unless the beneficial owner has
expressly objected to disclosure of this information. In order to comply
with the rule, the Custodian needs the Fund to indicate whether it
authorizes the Custodian to provide the Fund's name, address, and share
position to requesting companies whose securities the Fund owns. If the
Fund tells the Custodian "no", the Custodian will not provide this
information to requesting companies. If the Fund tells the Custodian "yes"
or does not check either "yes" or "no" below, the Custodian is required by
the rule to treat the fund as consenting to disclosure of this information
for all securities owned by the Fund or any funds or accounts established
by the Fund. For the Fund's protection, the Rule prohibits the requesting
company from using the Fund's name and address for any purpose other than
corporate communications. Please indicate below whether the Fund consents
or objects by checking one of the alternatives below.
YES [ ] The Custodian is authorized to release the Fund's name, address,
and share positions.
NO [ ] The Custodian is not authorized to release the Fund's name,
address, and share positions.
16
<PAGE>
IN WITNESS WHEREOF, each of the parties has caused this instrument to be
executed in its name and behalf by its duly authorized representative and its
seal to be hereunder affixed as of the 29th day of June, 2000.
ATTEST: Orbitex Life Sciences & Biotechnology
Fund, Inc.
By:
------------------------------ -----------------------------------
ATTEST: Circle Trust Company
By:
------------------------------ -----------------------------------
17
<PAGE>
Schedule A
Countries, Foreign Sub-Custodians and
Foreign Securities Depositories
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------------------------------
Country/ Country/
Market Subcustodian(s) Market Subcustodian(s)
----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Argentina Banco Rio de la Plata Iceland Landsbanki Islands
Australia Commonwealth Bank of Australia/ India HSBC / Deutsche Bank AG
National Australia Bank Limited
Austria Bank Austria AG Indonesia HSBC
Bahrain HSBC Bank Middle East Ireland Allied Irish Banks, plc
Bangladesh Standard Chartered Bank Israel Bank Leumi LE - Israel B.M.
Belgium Banque Bruxelles Lambert Italy Banca Commerciale Italiana / BNP
Paribas
Benin Societe Generale de Banques en Cote Ivory Coast Societe Generale - Abidjan
d'Ivoire
Bermuda Bank of Bermuda Limited Jamaica CIBC Trust & Merchant Bank Jamaica
Ltd.
Bolivia Citibank, N.A. Japan The Bank of Tokyo-Mitsubishi Limited/
The Fuji Bank, Limited
Botswana Barclays Bank of Botswana Ltd. Jordan HSBC Bank Middle East
Brazil BankBoston, N.A. Kazakhstan ABN/AMRO
Bulgaria ING Bank Kenya Barclays Bank of Kenya Ltd.
Burkina Faso Societe Generale de Banques en Cote Latvia Hansabanka Limited
d'Ivoire
Canada Royal Bank of Canada Lebanon HSBC Bank Middle East
Chile BankBoston, N.A. Lithuania Vilniaus Bankas
China Standard Chartered Bank Luxembourg Banque et Caisse d'Epargne de l'Etat
Colombia Cititrust Colombia S.A. Malaysia HongKong Bank Malaysia Berhad
Costa Rica Banco BCT Mali Societe Generale de Banques en Cote
d'Ivoire
Croatia Privredna Banka Zagreb d.d. Malta HSBC Bank Malta p.l.c.
Cyprus Bank of Cyprus Mauritius HSBC
Czech Republic Ceskoslovenska Obchodni Banka A.S. Mexico Banco Nacional de Mexico
Denmark Den Danske Bank Morocco Banque Commerciale du Maroc
EASDAQ Banque Bruxelles Lambert Namibia Stanbic Bank Namibia Limited
Ecuador Citibank, N.A. Netherlands MeesPierson
Egypt Citibank, N.A. New Zealand Australia and New Zealand Banking
Group
Estonia Hansabank Limited Niger Societe Generale de Banques en Cote
d'Ivoire
Euromarket Clearstream Nigeria Stanbic Merchant Bank Nigeria Limited
Euromarket Euroclear Norway Den norske Bank ASA
Finland Merita Bank plc Oman HSBC Bank Middle East
France BNP Paribas / Credit Agricole Indosuez Pakistan Standard Chartered Bank
Germany Dresdner Bank AG Panama BankBoston, N.A.
Ghana Barclays Bank of Ghana Ltd. Peru Citibank, N.A.
Greece BNP Paribas Philippines HSBC
Guinea Bissau Societe Generale de Banques en Cote Poland Bank Handlowy W Warszawie S.A.
d'Ivoire
Hong Kong HSBC Portugal Banco Comercial Portugues
Hungary Citibank Budapest Rt. Romania ING Bank
----------------------------------------------------------------------------------------------------------------------
</TABLE>
1
<PAGE>
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------------------------------
Country/ Country/
Market Subcustodian(s) Market Subcustodian(s)
----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Russia Vneshtorgbank (Min Fin Bonds only)/ Thailand Standard Chartered Bank/
Credit Suisse First Boston AO Bangkok Bank Public Company Limited
Senegal Societe Generale de Banques en Cote Togo Societe Generale de Banques en Cote
d'Ivoire d'Ivoire
Singapore United Overseas Bank Limited/ Trinidad & Republic Bank Limited
The Development Bank of Singapore Ltd. Tobago
Slovakia Ceskoslovenska Obchodni Banka, a.s. Tunisia Banque Internationale Arabe de
Tunisie
Slovenia Bank Austria Creditanstalt d.d. Turkey Osmanli Bankasi A.S. (Ottoman Bank)
Ljubljana
South Africa Societe Generale, Johannesburg / Ukraine ING Bank
The Standard Bank of South Africa
Limited
South Korea Standard Chartered Bank United Kingdom The Bank of New York /
The Depository & Clearing Centre
(DCC)
Spain Banco Bilbao Vizcaya Argentaria S.A. United States The Bank of New York
(BBVA) /
Banco Santander Central Hispano (BSCH)
Sri Lanka Standard Chartered Bank Uruguay BankBoston, N.A.
Swaziland Stanbic Bank Swaziland Limited Venezuela Citibank, N.A.
Sweden Skandinaviska Enskilda Banken Zambia Barclays Bank of Zambia Ltd.
Switzerland Credit Suisse First Boston Zimbabwe Barclays Bank of Zimbabwe Ltd.
Taiwan HSBC
----------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------------------------------
Finalizing Markets
----------------------------------------------------------------------------------------------------------------------
Finalizing/ Palestine
Implementing Qatar
----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Evaluating: Albania Barbados Kuwait Mozambique Uganda
Algeria El Salvador Lesotho Saudi Arabia Vietnam
Armenia Georgia Macedonia Tanzania
Azerbaijan Honduras Malawi U.A.E
----------------------------------------------------------------------------------------------------------------------
Monitoring Angola Dominican Republic Mongolia Syria
(Emerging): Belarus Iran Myanmar Tajikistan
Bhutan Kyrgyzstan Nepal Turkmenistan
Cambodia Madagascar Nicaragua Uzbekistan
Guatemala Moldova Paraguay Yugoslavia
----------------------------------------------------------------------------------------------------------------------
</TABLE>
2
<PAGE>
Circle Trust Company
Orbitex Life Sciences & Biotechnology
Fund, Inc.
Global Custody and Accounting Fee Schedule
1. Global Custody.
Maintain custody of fund assets. Settle Fund purchases and sales. Report
buy and sell fails. Determine and collect Fund income. Make cash
disbursements and report cash transactions in local and base currency.
Withhold foreign taxes. File foreign tax reclaims. Monitor corporate
actions. Report Fund positions.
A. Country Grouping
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------------------
GROUP A GROUP B GROUP C GROUP D GROUP E
---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
USA Australia Austria Botswana Argentina
---------------------------------------------------------------------------------------------------------
Canada Belgium Brazil Bangladesh
---------------------------------------------------------------------------------------------------------
Denmark Finland China Bolivia*
---------------------------------------------------------------------------------------------------------
Euroclear Hong Kong Czech Republic Chile
---------------------------------------------------------------------------------------------------------
France Indonesia Ecuador* Columbia
---------------------------------------------------------------------------------------------------------
Germany Ireland Egypt Cyprus
---------------------------------------------------------------------------------------------------------
Italy Malaysia Ghana Greece
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Japan Mexico Israel Hungary
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New Zealand Netherlands Kenya India
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South Africa Norway Luxembourg Jamaica*
---------------------------------------------------------------------------------------------------------
Switzerland Philippines Morocco Jordan
---------------------------------------------------------------------------------------------------------
U.K. Portugal Sri Lanka Mauritus
---------------------------------------------------------------------------------------------------------
Singapore Taiwan Namibia
---------------------------------------------------------------------------------------------------------
Spain Trinidad and Tobago* Pakistan
---------------------------------------------------------------------------------------------------------
Sweden Turkey Peru
---------------------------------------------------------------------------------------------------------
Thailand Zambia Poland
---------------------------------------------------------------------------------------------------------
Zimbabwe Slovakia*
---------------------------------------------------------------------------------------------------------
South Korea
---------------------------------------------------------------------------------------------------------
Tunisia*
---------------------------------------------------------------------------------------------------------
Uruguay
---------------------------------------------------------------------------------------------------------
Venezuela
---------------------------------------------------------------------------------------------------------
</TABLE>
* Not 17f-5 eligible at this time.
B. Transaction Charges
--------------------------------------------------------------------------------
Group A Group B Group C Group D Group E
--------------------------------------------------------------------------------
Circle Trust Co. $25 $50 $100 $125
Repos or Euros - $7.00
--------------------------------------------------------------------------------
DTC or Fed Book Entry- $12.00
--------------------------------------------------------------------------------
All other - $25.00
--------------------------------------------------------------------------------
C. Holding Charges in Basis Points (Annual Fee)
--------------------------------------------------------------------------------
Group A Group B Group C Group D Group E
--------------------------------------------------------------------------------
1.5 5.0 15.0 35.0 45.0
--------------------------------------------------------------------------------
1
<PAGE>
II. Multicurrency Accounting
Maintain investment ledgers in local and base currency, provide selected
Fund transactions, position and income reports. Maintain general ledger and
capital stock accounts in compliance with GAAP (FAS 52). Prepare daily
trial balance. Calculate net asset value daily. Provide selected general
ledger reports in multicurrency detail.
U.S. Holdings Only $3,000 per month
Global $4,000 per month
Multi-Managed with U.S. Holdings Only $12,000 per year
Multi-Managed Global $24,000 per year
The multi-currency accounting fees will be waived for the first three
months.
III. Navigator Automated Pricing
Monthly Base Charge $375.00
Monthly Quote Charge:
Municipal Bonds via Kenny/S&P or Muller Data $16.00
Corporate, Municipal, Convertible, Government Bonds
And Adjustable Rate Preferred Stocks Via IDSI $13.00
Government, Corporate Bonds via Kenny/S&P or Muller $11.00
Government, Corporate and Convertible Bonds
Via Merrill Lynch $11.00
Foreign Bonds via Extel $10.00
Options, Futures and Private Placements $6.00
Listed Equities (including International) and OTC Equities $6.00
For billing purposes, the monthly quote charge will be based on the number
of positions in the Fund at month end.
IV. Special Features
Fees for activities of a non-recurring nature such as fund consolidations
or reorganizations, extraordinary security shipments and the preparation of
special reports will be subject to negotiation. Fees for SEC yield
calculation, fund administration activities, self directed securities
lending transactions, SaFiRe financial reporting, multiple class and
core/feeder accounting, and other special items will be negotiated
separately.
V. Out-of-Pocket Expenses
A billing for the recovery of applicable out-of-pocket expenses will be
made as of the end of each month. Out-of-pocket expenses include, but are
not limited to the following:
<TABLE>
<S> <C>
- Telephone - Transfer Fees
- Wire Charge ($5.25 in and $5.00 out) - Price Waterhouse Audit Letter
- Postage and Insurance - Federal Reserve Fee for Return
- Courier Service - Check items of $2,500 ($4.25 each)
- Duplicating - GNMA Transfer ($15 each)
</TABLE>
2
<PAGE>
<TABLE>
<S> <C>
- Legal Fees - PTC Deposit/Withdrawal for same
- Supplies Related to Fund Records day turnaround ($50 each)
- Rush Transfer ($8 each) - Subcustodian charges
- Items held in Street name over record
date at request of trader ($50 each)
</TABLE>
VI. Payment
The above fees will be charged against the Fund's custodian checking
account five (5) days after the invoice is mailed to the Fund's offices.
Orbitex Life Sciences & Circle Trust Company
Biotechnology Fund, Inc.
By: By:
-------------------------------- -------------------------------------
Title: Title:
----------------------------- ----------------------------------
Date: Date:
------------------------------ -----------------------------------
3
