XXXXXXXXXXX INTERNATIONAL SMALL COMPANY FUND
CUSTODY AGREEMENT
Agreement made as of this day of ,
1997 between XXXXXXXXXXX INTERNATIONAL SMALL COMPANY FUND, a
business trust organized and existing under the laws of the
Commonwealth of Massachusetts, having its principal office and
place of business at Xxx Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 (hereinafter called the "Fund"), and THE BANK OF NEW YORK, a
New York corporation authorized to do a banking business, having
its principal office and place of business at 00 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (hereinafter called the "Custodian").
WITNESSETH, that for and in consideration of the mutual
promises hereinafter set forth, the Fund and the Custodian agree as
follows:
DEFINITIONS
Whenever used in this Agreement, the following words and
phrases, shall have the following meanings:
1. "Agreement" shall mean this Custody Agreement and all
Appendices and Certifications described in the Exhibits delivered
in connection herewith.
2. "Authorized Person" shall mean any person, whether or not
such person is an Officer or employee of the Fund, duly authorized
by the Board of Trustees of the Fund to give Oral Instructions and
Written Instructions on behalf of the Fund and listed in the
Certificate annexed hereto as Appendix A or such other Certificate
as may be received by the Custodian from time to time, provided
that each person who is designated in any such Certificate as an
"Officer of OSS" shall be an Authorized Person only for purposes of
Articles XII and XIII hereof.
3. "Book-Entry System" shall mean the Federal
Reserve/Treasury book-entry system for United States and federal
agency securities, its successor or successors and its nominee or
nominees.
4. "Call Option" shall mean an exchange traded Option with
respect to Securities other than Index, Futures Contracts, and
Futures Contract Options entitling the holder, upon timely exercise
and payment of the exercise price, as specified therein, to
purchase from the writer thereof the specified underlying
instruments, currency, or Securities.
5. "Certificate" shall mean any notice, instruction, or
other instrument in writing, authorized or required by this
Agreement to be given to the Custodian which is actually received
(irrespective of constructive receipt) by the Custodian and signed
on behalf of the Fund by any two Officers. The term Certificate
shall also include instructions by the Fund to the Custodian
communicated by a Terminal Link.
6. "Clearing Member" shall mean a registered broker-dealer
which is a clearing member under the rules of O.C.C. and a member
of a national securities exchange qualified to act as a custodian
for an investment company, or any broker-dealer reasonably believed
by the Custodian to be such a clearing member.
7. "Collateral Account" shall mean a segregated account so
denominated which is specifically allocated to a Series and pledged
to the Custodian as security for, and in consideration of, the
Custodian's issuance of any Put Option guarantee letter or similar
document described in paragraph 8 of Article V herein.
8. "Covered Call Option" shall mean an exchange traded
Option entitling the holder, upon timely exercise and payment of
the exercise price, as specified therein, to purchase from the
writer thereof the specified underlying instruments, currency, or
Securities (excluding Futures Contracts) which are owned by the
writer thereof.
9. "Depository" shall mean The Depository Trust Company
("DTC"), a clearing agency registered with the Securities and
Exchange Commission, its successor or successors and its nominee or
nominees. The term "Depository" shall further mean and include any
other person authorized to act as a depository under the Investment
Company Act of 1940, its successor or successors and its nominee or
nominees, specifically identified in a certified copy of a
resolution of the Fund's Board of Trustees specifically approving
deposits therein by the Custodian, including, without limitation,
a Foreign Depository.
10. "Financial Futures Contract" shall mean the firm
commitment to buy or sell financial instruments on a U.S.
commodities exchange or board of trade at a specified future time
at an agreed upon price.
11. "Foreign Subcustodian" shall mean an "Eligible Foreign
Custodian" as defined in Rule 17-5 which is appointed by the
Custodian to perform or coordinate the receipt, custody and
delivery of Foreign Property of the Fund outside the United States
in a manner consistent with the provisions of this Agreement and
whose written contract is approved by the Board of Trustees of the
Fund in accordance with Rule 17f-5. References to the Custodian
herein shall, when appropriate, include reference to its Foreign
Subcustodians.
12. "Foreign Depository" shall mean an entity organized under
the laws of a foreign country which operates a system outside the
United States in general use by foreign banks and securities
brokers for the central or transnational handling of securities or
equivalent book-entries which is regulated by a foreign government
or agency thereof and which is an "Eligible Foreign Custodian" as
defined in Rule 17f-5.
13. "Foreign Securities" shall mean securities and/or short
term paper as defined in Rule 17f-5 under the Act, whether issued
in registered or bearer form.
14. "Foreign Property" shall mean Foreign Securities and
money of any currency which is held outside of the United States.
15. "Futures Contract" shall mean a Financial Futures
Contract and/or Index Futures Contracts.
16. "Futures Contract Option" shall mean an Option with
respect to a Futures Contract.
17. "Investment Company Act of 1940" shall mean the
Investment Company Act of 1940, as amended, and the rules and
regulations thereunder.
18. "Index Futures Contract" shall mean a bilateral agreement
pursuant to which the parties agree to take or make delivery of an
amount of cash equal to a specified dollar amount times the
difference between the value of a particular index at the close of
the last business day of the contract and the price at which the
futures contract is originally struck.
19. "Index Option" shall mean an exchange traded Option
entitling the holder, upon timely exercise, to receive an amount of
cash determined by reference to the difference between the exercise
price and the value of the index on the date of exercise.
20. "Margin Account" shall mean a segregated account in the
name of a broker, dealer, futures commission merchant, or a
Clearing Member, or in the name of the Fund for the benefit of a
broker, dealer, futures commission merchant, or Clearing Member, or
otherwise, in accordance with an agreement between the Fund, the
Custodian and a broker, dealer, futures commission merchant or a
Clearing Member (a "Margin Account Agreement"), separate and
distinct from the custody account, in which certain Securities
and/or money of the Fund shall be deposited and withdrawn from time
to time in connection with such transactions as the Fund may from
time to time determine. Securities held in the Book-Entry System
or a Depository shall be deemed to have been deposited in, or
withdrawn from, a Margin Account upon the Custodian's effecting an
appropriate entry in its books and records.
21. "Money Market Security" shall mean all instruments and
obligations commonly known as a money market instruments, where the
purchase and sale of such securities normally requires settlement
in federal funds on the same day as such purchase or sale,
including, without limitation, certain Reverse Repurchase
Agreements, debt obligations issued or guaranteed as to interest
and/or principal by the government of the United States or agencies
or instrumentalities thereof, any tax, bond or revenue anticipation
note issued by any state or municipal government or public
authority, commercial paper, certificates of deposit and bankers'
acceptances, repurchase agreements with respect to Securities and
bank time deposits.
22. "Nominee" shall mean, in addition to the name of the
registered nominee of the Custodian, (i) a partnership or other
entity of a Foreign Subcustodian which is used solely for the
assets of its customers other than the Custodian and the Foreign
Subcustodian, if any, by which it was appointed; or (ii) the
nominee of a Foreign Depository which is used for the securities
and other assets of its customers, members or participants.
23. "O.C.C." shall mean the Options Clearing Corporation, a
clearing agency registered under Section 17A of the Securities
Exchange Act of 1934, its successor or successors, and its nominee
or nominees.
24. "Officers" shall mean the President, any Vice President,
the Secretary, the Treasurer, the Controller, any Assistant
Secretary, any Assistant Treasurer, and any other person or
persons, whether or not any such other person is an officer or
employee of the Fund, but in each case only if duly authorized by
the Board of Trustees of the Fund to execute any Certificate,
instruction, notice or other instrument on behalf of the Fund and
listed in the Certificate annexed hereto as Appendix B or such
other Certificate as may be received by the Custodian from time to
time; provided that each person who is designated in any such
Certificate as holding the position of "Officer of OSS" shall be an
Officer only for purposes of Articles XII and XIII hereof.
25. "Option" shall mean a Call Option, Covered Call Option,
Index Option and/or a Put Option.
26. "Oral Instructions" shall mean verbal instructions
actually received (irrespective of constructive receipt) by the
Custodian from an Authorized Person or from a person reasonably
believed by the Custodian to be an Authorized Person.
27. "Put Option" shall mean an exchange traded Option with
respect to instruments, currency, or Securities other than Index
Options, Futures Contracts, and Futures Contract Options entitling
the holder, upon timely exercise and tender of the specified
underlying instruments, currency, or Securities, to sell such
instruments, currency, or Securities to the writer thereof for the
exercise price.
28. "Repurchase Agreement" shall mean an agreement pursuant
to which the Fund buys Securities and agrees to resell such
Securities at a described or specified date and price.
29. "Reverse Repurchase Agreement" shall mean an agreement
pursuant to which the Fund sells Securities and agrees to
repurchase such Securities at a described or specified date and
price.
30. "Rule 17f-5" shall mean Rule 17f-5 (Reg. 270.17f-5)
promulgated by the Securities and Exchange Commission under the
Investment Company Act of 1940, as amended.
31. "Security" shall be deemed to include, without
limitation, Money Market Securities, Call Options, Put Options,
Index Options, Index Futures Contracts, Index Futures Contract
Options, Financial Futures Contracts, Financial Futures Contract
Options, Reverse Repurchase Agreements, over the counter Options on
Securities, common stocks and other securities having
characteristics similar to common stocks, preferred stocks, debt
obligations issued by state or municipal governments and by public
authorities, (including, without limitation, general obligation
bonds, revenue bonds, industrial bonds and industrial development
bonds), bonds, debentures, notes, mortgages or other obligations,
and any certificates, receipts, warrants or other instruments
representing rights to receive, purchase, sell or subscribe for the
same, or evidencing or representing any other rights or interest
therein, or rights to any property or assets.
32. "Senior Security Account" shall mean an account
maintained and specifically allocated to a Series under the terms
of this Agreement as a segregated account, by recordation or
otherwise, within the custody account in which certain Securities
and/or other assets of the Fund specifically allocated to such
Series shall be deposited and withdrawn from time to time in
accordance with Certificates received by the Custodian in
connection with such transactions as the Fund may from time to time
determine.
33. "Series" shall mean the various portfolios, if any, of
the Fund as described from time to time in the current and
effective prospectus for the Fund, except that if the Fund does not
have more than one portfolio, "Series" shall mean the Fund or be
ignored where a requirement would be imposed on the Fund or the
Custodian which is unnecessary if there is only one portfolio.
34. "Shares" shall mean the shares of beneficial interest of
the Fund and its Series.
35. "Terminal Link" shall mean an electronic data
transmission link between the Fund and the Custodian requiring in
connection with each use of the Terminal Link the use of an
authorization code provided by the Custodian and at least two
access codes established by the Fund, provided, that the Fund shall
have delivered to the Custodian a Certificate substantially in the
form of Appendix C.
36. "Transfer Agent" shall mean OppenheimerFunds Services, a
division of OppenheimerFunds, Inc., its successors and assigns.
37. "Transfer Agent Account" shall mean any account in the
name of the Fund, or the Transfer Agent, as agent for the Fund,
maintained with United Missouri Bank or such other Bank designated
by the Fund in a Certificate.
38. "Written Instructions" shall mean written communications
actually received (irrespective of constructive receipt) by the
Custodian from an Authorized Person or from a person reasonably
believed by the Custodian to be an Authorized Person by telex or
any other such system whereby the receiver of such communications
is able to verify by codes or otherwise with a reasonable degree of
certainty the identity of the sender of such communication.
ARTICLE I
APPOINTMENT OF CUSTODIAN
1. The Fund hereby constitutes and appoints the Custodian as
custodian of the Securities and moneys at any time owned or held by
the Fund during the period of this Agreement.
2. The Custodian hereby accepts appointment as such
custodian and agrees to perform the duties thereof as hereinafter
set forth.
ARTICLE II
CUSTODY OF CASH AND SECURITIES
1. Except for monies received and maintained in the Transfer
Agent Account, or as otherwise provided in paragraph 7 of this
Article or in Article VIII or XV, the Fund will deliver or cause to
be delivered to the Custodian all Securities and all moneys owned
by it, at any time during the period of this Agreement, and shall
specify with respect to such Securities and money the Series to
which the same are specifically allocated, and the Custodian shall
not be responsible for any Securities or money not so delivered.
Except for assets held at DTC, the Custodian shall physically
segregate, keep and maintain the Securities of the Series separate
and apart from each other Series and from other assets held by the
Custodian. Except as otherwise expressly provided in this
Agreement, the Custodian will not be responsible for any Securities
and moneys not actually received by it, unless the Custodian has
been negligent or has engaged in willful misconduct with respect
thereto. The Custodian will be entitled to reverse any credit of
money made on the Fund's behalf where such credits have been
previously made and moneys are not finally collected, unless the
Custodian has been negligent or has engaged in willful misconduct
with respect thereto; provided that if such reversal is thirty (30)
days or more after the credit was issued, the Custodian will give
five (5) days' prior notice of such reversal. The Fund shall
deliver to the Custodian a certified resolution of the Board of
Trustees of the Fund, substantially in the form of Exhibit A
hereto, approving, authorizing and instructing the Custodian on a
continuous and on-going basis to deposit in the Book-Entry System
all Securities eligible for deposit therein, regardless of the
Series to which the same are specifically allocated and to utilize
the Book-Entry System to the extent possible in connection with its
performance hereunder, including, without limitation, in connection
with settlements of purchases and sales of Securities, loans of
Securities and deliveries and returns of Securities collateral.
Prior to a deposit of Securities specifically allocated to a Series
in any Depository, the Fund shall deliver to the Custodian a
certified resolution of the Board of Trustees of the Fund,
substantially in the form of Exhibit B hereto, approving,
authorizing and instructing the Custodian on a continuous and
ongoing basis until instructed to the contrary by a Certificate to
deposit in such Depository all Securities specifically allocated to
such Series eligible for deposit therein, and to utilize such
Depository to the extent possible with respect to such Securities
in connection with its performance hereunder, including, without
limitation, in connection with settlements of purchases and sales
of Securities, loans of Securities, and deliveries and returns of
Securities collateral. Securities and moneys deposited in either
the Book-Entry System or a Depository will be represented in
accounts which include only assets held by the Custodian for
customers, including, but not limited to, accounts in which the
Custodian acts in a fiduciary or representative capacity and will
be specifically allocated on the Custodian's books to the separate
account for the applicable Series. Prior to the Custodian's
accepting, utilizing and acting with respect to Clearing Member
confirmations for Options and transactions in Options for a Series
as provided in this Agreement, the Custodian shall have received a
certified resolution of the Fund's Board of Trustees, substantially
in the form of Exhibit C hereto, approving, authorizing and
instructing the Custodian on a continuous and on-going basis, until
instructed to the contrary by a Certificate to accept, utilize and
act in accordance with such confirmations as provided in this
Agreement with respect to such Series. All Securities are to be
held or disposed of by the Custodian for, and subject at all times
to the instructions of, the Fund pursuant to the terms of this
Agreement. The Custodian shall have no power or authority to
assign, hypothecate, pledge or otherwise dispose of any Securities
except as provided by the terms of this Agreement, and shall have
the sole power to release and deliver Securities held pursuant to
this Agreement.
2. The Custodian shall establish and maintain separate
accounts, in the name of each Series, and shall credit to the
separate account for each Series all moneys received by it for the
account of the Fund with respect to such Series. Money credited to
a separate account for a Series shall be subject only to drafts,
orders, or charges of the Custodian pursuant to this Agreement and
shall be disbursed by the Custodian only:
(a) As hereinafter provided;
(b) Pursuant to Certificates or Resolutions of the
Fund's Board of Trustees certified by an Officer and by the
Secretary or Assistant Secretary of the Fund setting forth the name
and address of the person to whom the payment is to be made, the
Series account from which payment is to be made, the purpose for
which payment is to be made, and declaring such purpose to be a
proper corporate purpose; provided, however, that amounts
representing dividends, distributions, or redemptions proceeds with
respect to Shares shall be paid only to the Transfer Agent Account;
(c) In payment of the fees and in reimbursement of
the expenses and liabilities of the Custodian attributable to such
Series and authorized by this Agreement; or
(d) Pursuant to Certificates to pay interest,
taxes, management fees or operating expenses (including, without
limitation thereto, Board of Trustees' fees and expenses, and fees
for legal accounting and auditing services), which Certificates set
forth the name and address of the person to whom payment is to be
made, state the purpose of such payment and designate the Series
for whose account the payment is to be made.
3. Promptly after the close of business on each day, the
Custodian shall furnish the Fund with confirmations and a summary,
on a per Series basis, of all transfers to or from the account of
the Fund for a Series, either hereunder or with any co-custodian or
Subcustodian appointed in accordance with this Agreement during
said day. Where Securities are transferred to the account of the
Fund for a Series but held in a Depository, the Custodian shall
upon such transfer also by book-entry or otherwise identify such
Securities as belonging to such Series in a fungible bulk of
Securities registered in the name of the Custodian (or its nominee)
or shown on the Custodian's account on the books of the Book-Entry
System or the Depository. At least monthly and from time to time,
the Custodian shall furnish the Fund with a detailed statement, on
a per Series basis, of the Securities and moneys held under this
Agreement for the Fund.
4. Except as otherwise provided in paragraph 7 of this
Article and in Article VIII, all Securities held by the Custodian
hereunder, which are issued or issuable only in bearer form, except
such Securities as are held in the Book-Entry System, shall be held
by the Custodian in that form; all other Securities held hereunder
may be registered in the name of the Fund, in the name of any duly
appointed registered nominee of the Custodian as the Custodian may
from time to time determine, or in the name of the Book-Entry
System or a Depository or their successor or successors, or their
nominee or nominees. The Fund agrees to furnish to the Custodian
appropriate instruments to enable the Custodian to hold or deliver
in proper form for transfer, or to register in the name of its
registered nominee or in the name of the Book-Entry System or a
Depository any Securities which it may hold hereunder and which may
from time to time be registered in the name of the Fund. The
Custodian shall hold all such Securities specifically allocated to
a Series which are not held in the Book-Entry System or in a
Depository in a separate account in the name of such Series
physically segregated at all times from those of any other person
or persons.
5. Except as otherwise provided in this Agreement and unless
otherwise instructed to the contrary by a Certificate, the
Custodian by itself, or through the use of the Book-Entry System or
a Depository with respect to Securities held hereunder and therein
deposited, shall with respect to all Securities held for the Fund
hereunder in accordance with preceding paragraph 4:
(a) Promptly collect all income, dividends and
distributions due or payable;
(b) Promptly give notice to the Fund and promptly
present for payment and collect the amount of money or other
consideration payable upon such Securities which are called, but
only if either (i) the Custodian receives a written notice of such
call, or (ii) notice of such call appears in one or more of the
publications listed in Appendix D annexed hereto, which may be
amended at any time by the Custodian without the prior consent of
the Fund, provided the Custodian gives prior notice of such
amendment to the Fund;
(c) Promptly present for payment and collect for
the Fund's account the amount payable upon all Securities which
mature;
(d) Promptly surrender Securities in temporary form
in exchange for definitive Securities;
(e) Promptly execute, as custodian, any necessary
declarations or certificates of ownership under the Federal Income
Tax Laws or the laws or regulations of any other taxing authority
now or hereafter in effect;
(f) Hold directly, or through the Book-Entry System
or the Depository with respect to Securities therein deposited, for
the account of a Series, all rights and similar securities issued
with respect to any Securities held by the Custodian for such
Series hereunder; and
(g) Promptly deliver to the Fund all notices,
proxies, proxy soliciting materials, consents and other written
information (including, without limitation, notices of tender
offers and exchange offers, pendency of calls, maturities of
Securities and expiration of rights) relating to Securities held
pursuant to this Agreement which are actually received by the
Custodian, such proxies and other similar materials to be executed
by the registered holder (if Securities are registered otherwise
than in the name of the Fund), but without indicating the manner in
which proxies or consents are to be voted.
6. Upon receipt of a Certificate and not otherwise, the
Custodian, directly or through the use of the Book-Entry System or
the Depository, shall:
(a) Promptly execute and deliver to such persons as
may be designated in such Certificate proxies, consents,
authorizations, and any other instruments whereby the authority of
the Fund as owner of any Securities held hereunder for the Series
specified in such Certificate may be exercised;
(b) Promptly deliver any Securities held hereunder
for the Series specified in such Certificate in exchange for other
Securities or cash issued or paid in connection with the
liquidation, reorganization, refinancing, merger, consolidation or
recapitalization of any corporation, or the exercise of any right,
warrant or conversion privilege and receive and hold hereunder
specifically allocated to such Series any cash or other Securities
received in exchange;
(c) Promptly deliver any Securities held hereunder
for the Series specified in such Certificate to any protective
committee, reorganization committee or other person in connection
with the reorganization, refinancing, merger, consolidation,
recapitalization or sale of assets of any corporation, and receive
and hold hereunder specifically allocated to such Series in
exchange therefor such certificates of deposit, interim receipts or
other instruments or documents as may be issued to it to evidence
such delivery or such Securities as may be issued upon such
delivery; and
(d) Promptly present for payment and collect the
amount payable upon Securities which may be called as specified in
the Certificate.
7. Notwithstanding any provision elsewhere contained herein,
the Custodian shall not be required to obtain possession of any
instrument or certificate representing any Futures Contract, any
Option, or any Futures Contract Option until after it shall have
determined, or shall have received a Certificate from the Fund
stating, that any such instruments or certificates are available.
The Fund shall deliver to the Custodian such a Certificate no later
than the business day preceding the availability of any such
instrument or certificate. Prior to such availability, the
Custodian shall comply with Section 17(f) of the Investment Company
Act of 1940 in connection with the purchase, sale, settlement,
closing out or writing of Futures Contracts, Options, or Futures
Contract Options by making payments or deliveries specified in
Certificates in connection with any such purchase, sale, writing,
settlement or closing out upon its receipt from a broker, dealer,
or futures commission merchant of a statement or confirmation
reasonably believed by the Custodian to be in the form customarily
used by brokers, dealers, or future commission merchants with
respect to such Futures Contracts, Options, or Futures Contract
Options, as the case may be, confirming that such Security is held
by such broker, dealer or futures commission merchant, in book-
entry form or otherwise in the name the Custodian (or any nominee
of the Custodian) as custodian for the Fund; provided, however,
that notwithstanding the foregoing, payments to or deliveries from
the Margin Account and payments with respect to Securities to which
a Margin Account relates, shall be made in accordance with the
terms and conditions of the Margin Account Agreement. Whenever any
such instruments or certificates are available, the Custodian
shall, notwithstanding any provision in this Agreement to the
contrary, make payment for any Futures Contract, Option, or Futures
Contract Option for which such instruments or such certificates are
available only against the delivery to the Custodian of such
instrument or such certificate, and deliver any Futures Contract,
Option or Futures Contract Option for which such instruments or
such certificates are available only against receipt by the
Custodian of payment therefor. Any such instrument or certificate
delivered to the Custodian shall be held by the Custodian hereunder
in accordance with, and subject to, the provisions of this
Agreement.
ARTICLE III
PURCHASE AND SALE OF INVESTMENTS OF THE FUND
OTHER THAN OPTIONS, FUTURES CONTRACTS,
FUTURES CONTRACT OPTIONS, REPURCHASE AGREEMENTS,
REVERSE REPURCHASE AGREEMENTS AND SHORT SALES
1. Promptly after each execution of a purchase of Securities
by the Fund, other than a purchase of an Option, a Futures
Contract, a Futures Contract Option, a Repurchase Agreement, a
Reverse Repurchase Agreement or a Short Sale, the Fund shall
deliver to the Custodian (i) with respect to each purchase of
Securities which are not Money Market Securities, a Certificate,
and (ii) with respect to each purchase of Money Market Securities,
a Certificate, oral Instructions or Written Instructions,
specifying with respect to each such purchase: (a) the Series to
which such Securities are to be specifically allocated; (b) the
name of the issuer and the title of the Securities; (c) the number
of shares or the principal amount purchased and accrued interest,
if any; (d) the date of purchase and settlement; (e) the purchase
price per unit; (f) the total amount payable upon such purchase;
(g) the name of the person from whom or the broker through whom the
purchase was made, and the name of the clearing broker, if any; and
(h) the name of the broker or other party to whom payment is to be
made. Custodian shall, upon receipt of such Securities purchased
by or for the Fund, pay to the broker specified in the Certificate
out of the moneys held for the account of such Series the total
amount payable upon such purchase, provided that the same conforms
to the total amount payable as set forth in such Certificate, oral
Instructions or Written Instructions.
2. Promptly after each execution of a sale of Securities by
the Fund, other than a sale of any Option, Futures Contract,
Futures Contract Option, Repurchase Agreement, Reverse Repurchase
Agreement or Short Sale, the Fund shall deliver such to the
Custodian (i) with respect to each sale of Securities which are not
Money Market Securities, a Certificate, and (ii) with respect to
each sale of Money Market Securities, a Certificate, Oral
Instructions or Written Instructions, specifying with respect to
each such sale: (a) the Series to which such Securities were
specifically allocated; (b) the name of the issuer and the title of
the Security; (c) the number of shares or principal amount sold,
and accrued interest, if any; (d) the date of sale and settlement;
(e) the sale price per unit; (f) the total amount payable to the
Fund upon such sale; (g) the name of the broker through whom or the
person to whom the sale was made, and the name of the clearing
broker, if any; and (h) the name of the broker to whom the
Securities are to be delivered. On the settlement date, the
Custodian shall deliver the Securities specifically allocated to
such Series to the broker in accordance with generally accepted
street practices and as specified in the Certificate upon receipt
of the total amount payable to the Fund upon such sale, provided
that the same conforms to the total amount payable as set forth in
such Certificate, oral Instructions or Written Instructions.
ARTICLE IV
OPTIONS
1. Promptly after each execution of a purchase of any Option
by the Fund other than a closing purchase transaction, the Fund
shall deliver to the Custodian a Certificate specifying with
respect to each Option purchased: (a) the Series to which such
Option is specifically allocated; (b) the type of Option (put or
call); (c) the instrument, currency, or Security underlying such
Option and the number of Options, or the name of the issuer, in the
case of an Index Option, the index to which such Option relates and
the number of Index Options purchased; (d) the expiration date; (e)
the exercise price; (f) the dates of purchase and settlement; (g)
the total amount payable by the Fund in connection with such
purchase; and (h) the name of the Clearing Member through whom such
Option was purchased. The Custodian shall pay, upon receipt of a
Clearing Member's written statement confirming the purchase of such
Option held by such Clearing Member for the account of the
Custodian (or any duly appointed and registered nominee of the
Custodian) as Custodian for the Fund, out of moneys held for the
account of the Series to which such Option is to be specifically
allocated, the total amount payable upon such purchase to the
Clearing Member through whom the purchase was made, provided that
the same conforms to the amount payable as set forth in such
Certificate.
2. Promptly after the execution of a sale of any Option
purchased by the Fund, other than a closing sale transaction,
pursuant to paragraph 1 hereof, the Fund shall deliver to the
Custodian a Certificate specifying with respect to each such sale:
(a) the Series to which such Option was specifically allocated; (b)
the type of Option (put or call); (c) the instrument, currency, or
Security underlying such Option and the number of Options, or the
name of the issuer and the title and number of shares subject to
such Option or, in the case of an Index Option, the index to which
such Option relates and the number of Index Options sold; (d) the
date of sale; (e) the sale price; (f) the date of settlement; (g)
the total amount payable to the Fund upon such sale; and (h) the
name of the Clearing Member through whom the sale was made. The
Custodian shall consent to the delivery of the Option sold by the
Clearing Member which previously supplied the confirmation
described in preceding paragraph of this Article with respect to
such Option upon receipt by the Custodian of the total amount
payable to the Fund, provided that the same conforms to the total
amount payable as set forth in such Certificate.
3. Promptly after the exercise by the Fund of any Call
Option purchased by the Fund pursuant to paragraph 1 hereof, the
Fund shall deliver to the Custodian a Certificate specifying with
respect to such Call Option: (a) the Series to which such Call
Option was specifically allocated; (b) the name of the issuer and
the title and number of shares subject to the Call Option; (c) the
expiration date; (d) the date of exercise and settlement; (e) the
exercise price per share; (f) the total amount to be paid by the
Fund upon such exercise; and (g) the name of the Clearing Member
through whom such Call Option was exercised. The Custodian shall,
upon receipt of the Securities underlying the Call Option which was
exercised, pay out of the moneys held for the account of the Series
to which such Call Option was specifically allocated the total
amount payable to the Clearing Member through whom the Call Option
was exercised, provided that the same conforms to the total amount
payable as set forth in such Certificate.
4. Promptly after the exercise by the Fund of any Put Option
purchased by the Fund pursuant to paragraph 1 hereof, the Fund
shall deliver to the Custodian a Certificate specifying with
respect to such Put Option: (a) the Series to which such Put
Option was specifically allocated; (b) the name of the issuer and
the title and number of shares subject to the Put Option; (c) the
expiration date; (d) the date of exercise and settlement; (e) the
exercise price per share; (f) the total amount to be paid to the
Fund upon such exercise; and (g) the name of the Clearing Member
through whom such Put Option was exercised. The Custodian shall,
upon receipt of the amount payable upon the exercise of the Put
Option, deliver or direct a Depository to deliver the Securities
specifically allocated to such Series, provided the same conforms
to the amount payable to the Fund as set forth in such Certificate.
5. Promptly after the exercise by the Fund of any Index
Option purchased by the Fund pursuant to paragraph 1 hereof, the
Fund shall deliver to the Custodian a Certificate specifying with
respect to such Index Option: (a) the Series to which such Index
Option was specifically allocated; (b) the type of Index Option
(put or call) (c) the number of Options being exercised; (d) the
index to which such Option relates; (e) the expiration date; (f)
the exercise price; (g) the total amount to be received by the Fund
in connection with such exercise; and (h) the Clearing Member from
whom such payment is to be received.
6. Whenever the Fund writes a Covered Call Option, the Fund
shall promptly deliver to the Custodian a Certificate specifying
with respect to such Covered Call Option: (a) the Series for which
such Covered Call Option was written; (b) the name of the issuer
and the title and number of shares for which the Covered Call
Option was written and which underlie the same; (c) the expiration
date; (d) the exercise price; (e) the premium to be received by the
Fund; (f) the date such Covered Call Option was written; and (g)
the name of the Clearing Member through whom the premium is to be
received. The Custodian shall deliver or cause to be delivered,
upon receipt of the premium specified in the Certificate with
respect to such Covered Call Option, such receipts as are required
in accordance with the customs prevailing among Clearing Members
dealing in Covered Call Options and shall impose, or direct a
Depository to impose, upon the underlying Securities specified in
the Certificate specifically allocated to such Series such
restrictions as may be required by such receipts. Notwithstanding
the foregoing, the Custodian has the right, upon prior written
notification to the Fund, at any time to refuse to issue any
receipts for Securities in the possession of the Custodian and not
deposited with a Depository underlying a Covered Call Option.
7. Whenever a Covered Call Option written by the Fund and
described in the preceding paragraph of this Article is exercised,
the Fund shall promptly deliver to the Custodian a Certificate
instructing the Custodian to deliver, or to direct the Depository
to deliver, the Securities subject to such Covered Call Option and
specifying: (a) the Series for which such Covered Call Option was
written; (b) the name of the issuer and the title and number of
shares subject to the Covered Call Option; (c) the Clearing Member
to whom the underlying Securities are to be delivered; and (d) the
total amount payable to the Fund upon such delivery. Upon the
return and/or cancellation of any receipts delivered pursuant to
paragraph 6 of this Article, the Custodian shall deliver, or direct
a Depository to deliver, the underlying Securities as specified in
the Certificate upon payment of the amount to be received as set
forth in such Certificate.
8. Whenever the Fund writes a Put Option, the Fund shall
promptly deliver to the Custodian a Certificate specifying with
respect to such Put Option: (a) the Series for which such Put
Option was written; (b) the name of the issuer and the title and
number of shares for which the Put Option is written and which
underlie the same; (c) the expiration date; (d) the exercise price;
(e) the premium to be received by the Fund; (f) the date such Put
Option is written; (g) the name of the Clearing Member through whom
the premium is to be received and to whom a Put Option guarantee
letter is to be delivered; (h) the amount of cash, and/or the
amount and kind of Securities, if any, specifically allocated to
such Series to be deposited in the Senior Security Account for such
Series; and (i) the amount of cash and/or the amount and kind of
Securities specifically allocated to such Series to be deposited
into the Collateral Account for such Series. The Custodian shall,
after making the deposits into the Collateral Account specified in
the Certificate, issue a Put Option guarantee letter substantially
in the form utilized by the Custodian on the date hereof, and
deliver the same to the Clearing Member specified in the
Certificate upon receipt of the premium specified in said
Certificate. Notwithstanding the foregoing, the Custodian shall be
under no obligation to issue any Put Option guarantee letter or
similar document if it is unable to make any of the representations
contained therein.
9. Whenever a Put Option written by the Fund and described
in the preceding paragraph is exercised, the Fund shall promptly
deliver to the Custodian a Certificate specifying: (a) the Series
to which such Put Option was written; (b) the name of the issuer
and title and number of shares subject to the Put Option; (c) the
Clearing Member from whom the underlying Securities are to be
received; (d) the total amount payable by the Fund upon such
delivery; (e) the amount of cash and/or the amount and kind of
Securities specifically allocated to such Series to be withdrawn
from the Collateral Account for such Series and (f) the amount of
cash and/or the amount and kind of Securities, specifically
allocated to such series, if any, to be withdrawn from the Senior
Security Account. Upon the return and/or cancellation of any Put
Option guarantee letter or similar document issued by the Custodian
in connection with such Put Option, the Custodian shall pay out of
the moneys held for the account of the series to which such Put
Option was specifically allocated the total amount payable to the
Clearing Member specified in the Certificate as set forth in such
Certificate, upon delivery of such Securities, and shall make the
withdrawals specified in such Certificate.
10. Whenever the Fund writes an Index Option, the Fund shall
promptly deliver to the Custodian a Certificate specifying with
respect to such Index Option: (a) the Series for which such Index
Option was written; (b) whether such Index Option is a put or a
call; (c) the number of Options written; (d) the index to which
such Option relates; (e) the expiration date; (f) the exercise
price; (g) the Clearing Member through whom such Option was
written; (h) the premium to be received by the Fund; (i) the amount
of cash and/or the amount and kind of Securities, if any,
specifically allocated to such Series to be deposited in the Senior
Security Account for such Series; (j) the amount of cash and/or the
amount and kind of Securities, if any, specifically allocated to
such Series to be deposited in the Collateral Account for such
Series; and (k) the amount of cash and/or the amount and kind of
Securities, if any, specifically allocated to such Series to be
deposited in a Margin Account, and the name in which such account
is to be or has been established. The Custodian shall, upon
receipt of the premium specified in the Certificate, make the
deposits, if any, into the Senior Security Account specified in the
Certificate, and either (1) deliver such receipts, if any, which
the Custodian has specifically agreed to issue, which are in
accordance with the customs prevailing among Clearing Members in
Index Options and make the deposits into the Collateral Account
specified in the Certificate, or (2) make the deposits into the
Margin Account specified in the Certificate.
11. Whenever an Index Option written by the Fund and
described in the preceding paragraph of this Article is exercised,
the Fund shall promptly deliver to the Custodian a Certificate
specifying with respect to such Index Option: (a) the Series for
which such Index Option was written; (b) such information as may be
necessary to identify the Index Option being exercised; (c) the
Clearing Member through whom such Index Option is being exercised;
(d) the total amount payable upon such exercise, and whether such
amount is to be paid by or to the Fund; (e) the amount of cash
and/or amount and kind of Securities, if any, to be withdrawn from
the Margin Account; and (f) the amount of cash and/or amount and
kind of Securities, if any, to be withdrawn from the Senior
Security Account for such Series; and the amount of cash and/or the
amount and kind of Securities, if any, to be withdrawn from the
Collateral Account for such Series. Upon the return and/or
cancellation of the receipt, if any, delivered pursuant to the
preceding paragraph of this Article, the Custodian shall pay out of
the moneys held for the account of the Series to which such Stock
Index Option was specifically allocated to the Clearing Member
specified in the Certificate the total amount payable, if any, as
specified therein.
12. Promptly after the execution of a purchase or sale by the
Fund of any Option identical to a previously written Option
described in paragraphs, 6, 8 or 10 of this Article in a
transaction expressly designated as a "Closing Purchase
Transaction" or a "Closing Sale Transaction", the Fund shall
promptly deliver to the Custodian a Certificate specifying with
respect to the Option being purchased: (a) that the transaction is
a Closing Purchase Transaction or a Closing Sale Transaction; (b)
the Series for which the Option was written; (c) the instrument,
currency, or Security subject to the Option, or, in the case of an
Index Option, the index to which such Option relates and the number
of Options held; (d) the exercise price; (e) the premium to be paid
by or the amount to be paid to the Fund; (f) the expiration date;
(g) the type of Option (put or call); (h) the date of such purchase
or sale; (i) the name of the Clearing Member to whom the premium is
to be paid or from whom the amount is to be received; and (j) the
amount of cash and/or the amount and kind of Securities, if any, to
be withdrawn from the Collateral Account, a specified Margin
Account, or the Senior Security Account for such Series. Upon the
Custodian's payment of the premium or receipt of the amount, as the
case may be, specified in the Certificate and the return and/or
cancellation of any receipt issued pursuant to paragraphs 6, 8 or
10 of this Article with respect to the Option being liquidated
through the Closing Purchase Transaction or the Closing Sale
Transaction, the Custodian shall remove, or direct a Depository to
remove, the previously imposed restrictions on the Securities
underlying the Call Option.
13. Upon the expiration, exercise or consummation of a
Closing Purchase Transaction with respect to any Option purchased
or written by the Fund and described in this Article, the Custodian
shall delete such Option from the statements delivered to the Fund
pursuant to paragraph 3 Article III herein, and upon the return
and/or cancellation of any receipts issued by the Custodian, shall
make such withdrawals from the Collateral Account, and the Margin
Account and/or the Senior Security Account as may be specified in
a Certificate received in connection with such expiration,
exercise, or consummation.
14. Securities acquired by the Fund through the exercise of
an Option described in this Article shall be subject to Article IV
hereof.
ARTICLE V
FUTURES CONTRACTS
1. Whenever the Fund shall enter into a Futures Contract,
the Fund shall deliver to the Custodian a Certificate specifying
with respect to such Futures Contract, (or with respect to any
number of identical Futures Contract(s)): (a) the Series for which
the Futures Contract is being entered; (b) the category of Futures
Contract (the name of the underlying index or financial
instrument); (c) the number of identical Futures Contracts entered
into; (d) the delivery or settlement date of the Futures
Contract(s); (e) the date the Futures Contract(s) was (were)
entered into and the maturity date; (f) whether the Fund is buying
(going long) or selling (going short) such Futures Contract(s); (g)
the amount of cash and/or the amount and kind of Securities, if
any, to be deposited in the Senior Security Account for such
Series; (h) the name of the broker, dealer, or futures commission
merchant through whom the Futures Contract was entered into; and
(i) the amount of fee or commission, if any, to be paid and the
name of the broker, dealer, or futures commission merchant to whom
such amount is to be paid. The Custodian shall make the deposits,
if any, to the Margin Account in accordance with the terms and
conditions of the Margin Account Agreement. The Custodian shall
make payment out of the moneys specifically allocated to such
Series of the fee or commission, if any, specified in the
Certificate and deposit in the Senior Security Account for such
Series the amount of cash and/or the amount and kind of Securities
specified in said Certificate.
2. (a) Any variation margin payment or similar payment
required to be made by the Fund to a broker, dealer, or futures
commission merchant with respect to an outstanding Futures Contract
shall be made by the Custodian in accordance with the terms and
conditions of the Margin Account Agreement.
(b) Any variation margin payment or similar payment from
a broker, dealer, or futures commission merchant to the Fund with
respect to an outstanding Futures Contract shall be received and
dealt with by the Custodian in accordance with the terms and
conditions of the Margin Account Agreement.
3. Whenever a Futures Contract held by the Custodian
hereunder is retained by the Fund until delivery or settlement is
made on such Futures Contract, the Fund shall deliver to the
Custodian prior to the delivery or settlement date a Certificate
specifying: (a) the Futures Contract and the Series to which the
same relates; (b) with respect to an Index Futures Contract, the
total cash settlement amount to be paid or received, and with
respect to a Financial Futures Contract, the Securities and/or
amount of cash to be delivered or received; (c) the broker, dealer,
or futures commission merchant to or from whom payment or delivery
is to be made or received; and (d) the amount of cash and/or
Securities to be withdrawn from the Senior Security Account for
such Series. The Custodian shall make the payment or delivery
specified in the Certificate, and delete such Futures Contract from
the statements delivered to the Fund pursuant to paragraph 3 of
Article III herein.
4. Whenever the Fund shall enter into a Futures Contract to
offset a Futures Contract held by the Custodian hereunder, the Fund
shall deliver to the Custodian a Certificate specifying: (a) the
items of information required in a Certificate described in
paragraph 1 of this Article, and (b) the Futures Contract being
offset. The Custodian shall make payment out of the money
specifically allocated to such Series of the fee or commission, if
any, specified in the Certificate and delete the Futures Contract
being offset from the statements delivered to the Fund pursuant to
paragraph 3 of Article III herein, and make such withdrawals from
the Senior Security Account for such Series as may be specified in
the Certificate. The withdrawals, if any, to be made from the
Margin Account shall be made by the Custodian in accordance with
the terms and conditions of the Margin Account Agreement.
ARTICLE VI
FUTURES CONTRACT OPTIONS
1. Promptly after the execution of a purchase of any Futures
Contract Option by the Fund, the Fund shall deliver to the
Custodian a Certificate specifying with respect to such Futures
Contract Option: (a) the Series to which such Option is
specifically allocated; (b) the type of Futures Contract Option
(put or call); (c) the type of Futures Contract and such other
information as may be necessary to identify the Futures Contract
underlying the Futures Contract Option purchased; (d) the
expiration date; (e) the exercise price; (f) the dates of purchase
and settlement; (g) the amount of premium to be paid by the Fund
upon such purchase; (h) the name of the broker or futures
commission merchant through whom such Option was purchased; and (i)
the name of the broker, or futures commission merchant, to whom
payment is to be made. The Custodian shall pay out of the moneys
specifically allocated to such Series the total amount to be paid
upon such purchase to the broker or futures commissions merchant
through whom the purchase was made, provided that the same conforms
to the amount set forth in such Certificate.
2. Promptly after the execution of a sale of any Futures
Contract Option purchased by the Fund pursuant to paragraph 1
hereof, the Fund shall deliver to the Custodian a Certificate
specifying with respect to each such sale: (a) Series to which
such Futures Contract Option was specifically allocated; (b) the
type of Futures Contract Option (put or call); (c) the type of
Futures Contract and such other information as may be necessary to
identify the Futures Contract underlying the Futures Contract
Option; (d) the date of sale; (e) the sale price; (f) the date of
settlement; (g) the total amount payable to the Fund upon such
sale; and (h) the name of the broker of futures commission merchant
through whom the sale was made. The Custodian shall consent to the
cancellation of the Futures Contract Option being closed against
payment to the Custodian of the total amount payable to the Fund,
provided the same conforms to the total amount payable as set forth
in such Certificate.
3. Whenever a Futures Contract Option purchased by the Fund
pursuant to paragraph 1 is exercised by the Fund, the Fund shall
promptly deliver to the Custodian a Certificate specifying: (a)
the Series to which such Futures Contract Option was specifically
allocated; (b) the particular Futures Contract Option (put or call)
being exercised; (c) the type of Futures Contract underlying the
Futures Contract Option; (d) the date of exercise; (e) the name of
the broker or futures commission merchant through whom the Futures
Contract Option is exercised; (f) the net total amount, if any,
payable by the Fund; (g) the amount, if any, to be received by the
Fund; and (h) the amount of cash and/or the amount and kind of
Securities to be deposited in the Senior Security Account for such
Series. The Custodian shall make, out of the moneys and Securities
specifically allocated to such Series, the payments of money, if
any, and the deposits of Securities, if any, into the Senior
Security Account as specified in the Certificate. The deposits, if
any, to be made to the Margin Account shall be made by the
Custodian in accordance with the terms and conditions of the Margin
Account Agreement.
4. Whenever the Fund writes a Futures Contract Option, the
Fund shall promptly deliver to the Custodian a Certificate
specifying with respect to such Futures Contract Option: (a) the
Series for which such Futures Contract Option was written; (b) the
type of Futures Contract Option (put or call); (c) the type of
Futures Contract and such other information as may be necessary to
identify the Futures Contract underlying the Futures Contract
Option; (d) the expiration date; (e) the exercise price; (f) the
premium to be received by the Fund; (g) the name of the broker or
futures commission merchant through whom the premium is to be
received; and (h) the amount of cash and/or the amount and kind of
Securities, if any, to be deposited in the Senior Security Account
for such Series. The Custodian shall, upon receipt of the premium
specified in the Certificate, make out of the moneys and Securities
specifically allocated to such Series the deposits into the Senior
Security Account, if any, as specified in the Certificate. The
deposits, if any, to be made to the Margin Account shall be made by
the Custodian in accordance with the terms and conditions of the
Margin Account Agreement.
5. Whenever a Futures Contract Option written by the Fund
which is a call is exercised, the Fund shall promptly deliver to
the Custodian a Certificate specifying: (a) the Series to which
such Futures Contract Option was specifically allocated; (b) the
particular Futures Contract Option exercised; (c) the type of
Futures Contract underlying the Futures Contract Option; (d) the
name of the broker or futures commission merchant through whom such
Futures Contract Option was exercised; (e) the net total amount, if
any, payable to the Fund upon such exercise; (f) the net total
amount, if any, payable by the Fund upon such exercise; and (g) the
amount of cash and/or the amount and kind of Securities to be
deposited in the Senior Security Account for such Series. The
Custodian shall, upon its receipt of the net total amount payable
to the Fund, if any, specified in such Certificate make the
payments, if any, and the deposits, if any, into the Senior
Security Account as specified in the Certificate. The deposits, if
any, to be made to the Margin Account shall be made by the
Custodian in accordance with the terms and conditions of the Margin
Account Agreement.
6. Whenever a Futures Contract Option which is written by
the Fund and which is a put is exercised, the Fund shall promptly
deliver to the Custodian a Certificate specifying: (a) the Series
to which such Option was specifically allocated; (b) the particular
Futures Contract Option exercised; (c) the type of Futures Contract
underlying such Futures Contract Option; (d) the name of the broker
or futures commission merchant through whom such Futures Contract
Option is exercised; (e) the net total amount, if any, payable to
the Fund upon such exercise; (f) the net total amount, if any,
payable by the Fund upon such exercise; and (g) the amount and kind
of Securities and/or cash to be withdrawn from or deposited in, the
Senior Security Account for such Series, if any. The Custodian
shall, upon its receipt of the net total amount payable to the
Fund, if any, specified in the Certificate, make out of the moneys
and Securities specifically allocated to such Series, the payments,
if any, and the deposits, if any, into the Senior Security Account
as specified in the Certificate. The deposits to and/or
withdrawals from the Margin Account, if any, shall be made by the
Custodian in accordance with the terms and conditions of the Margin
Account Agreement.
7. Promptly after the execution by the Fund of a purchase of
any Futures Contract Option identical to a previously written
Futures Contract Option described in this Article in order to
liquidate its position as a writer of such Futures Contract Option,
the Fund shall deliver to the Custodian a Certificate specifying
with respect to the Futures Contract Option being purchased: (a)
the Series to which such Option is specifically allocated; (b) that
the transaction is a closing transaction; (c) the type of Future
Contract and such other information as may be necessary to identify
the Futures Contract underlying the Futures Option Contract; (d)
the exercise price; (e) the premium to be paid by the Fund; (f) the
expiration date; (g) the name of the broker or futures commission
merchant to whom the premium is to be paid; and (h) the amount of
cash and/or the amount and kind of Securities, if any, to be
withdrawn from the Senior Security Account for such Series. The
Custodian shall effect the withdrawals from the Senior Security
Account specified in the Certificate. The withdrawals, if any, to
be made from the Margin Account shall be made by the Custodian in
accordance with the terms and conditions of the Margin Account
Agreement.
8. Upon the expiration, exercise, or consummation of a
closing transaction with respect to, any Futures Contract Option
written or purchased by the Fund and described in this Article, the
Custodian shall (a) delete such Futures Contract Option from the
statements delivered to the Fund pursuant to paragraph 3 of Article
III herein and (b) make such withdrawals from and/or in the case of
an exercise such deposits into the Senior Security Account as may
be specified in a Certificate. The deposits to and/or withdrawals
from the Margin Account, if any, shall be made by the Custodian in
accordance with the terms and conditions of the Margin Account
Agreement.
9. Futures Contracts acquired by the Fund through the
exercise of a Futures Contract Option described in this Article
shall be subject to Article VI hereof.
ARTICLE VII
SHORT SALES
1. Promptly after the execution of any short sales of
Securities by any Series of the Fund, the Fund shall deliver to the
Custodian a Certificate specifying: (a) the Series for which such
short sale was made; (b) the name of the issuer-and the title of
the Security; (c) the number of shares or principal amount sold,
and accrued interest or dividends, if any; (d) the dates of the
sale and settlement; (e) the sale price per unit; (f) the total
amount credited to the Fund upon such sale, if any, (g) the amount
of cash and/or the amount and kind of Securities, if any, which are
to be deposited in a Margin Account and the name in which such
Margin Account has been or is to be established; (h) the amount of
cash and/or the amount and kind of Securities, if any, to be
deposited in a Senior Security Account, and (i) the name of the
broker through whom such short sale was made. The Custodian shall
upon its receipt of a statement from such broker confirming such
sale and that the total amount credited to the Fund upon such sale,
if any, as specified in the Certificate is held by such broker for
the account of the Custodian (or any nominee of the Custodian) as
custodian of the Fund, issue a receipt or make the deposits into
the Margin Account and the Senior Security Account specified in the
Certificate.
2. Promptly after the execution of a purchase to close-out
any short sale of Securities, the Fund shall promptly deliver to
the Custodian a Certificate specifying with respect to each such
closing out: (a) the Series for which such transaction is being
made; (b) the name of the issuer and the title of the Security; (c)
the number of shares or the principal amount, and accrued interest
or dividends, if any, required to effect such closing-out to be
delivered to the broker; (d) the dates of closing-out and
settlement; (e) the purchase price per unit; (f) the net total
amount payable to the Fund upon such closing-out; (g) the net total
amount payable to the broker upon such closing-out; (h) the amount
of cash and the amount and kind of Securities to be withdrawn, if
any, from the Margin Account; (i) the amount of cash and/or the
amount and kind of Securities, if any, to be withdrawn from the
Senior Security Account; and (j) the name of the broker through
whom the Fund is effecting such closing-out. The Custodian shall,
upon receipt of the net total amount payable to the Fund upon such
closing-out, and the return and/or cancellation of the receipts, if
any, issued by the Custodian with respect to the short sale being
closed-out, pay out of the moneys held for the account of the Fund
to the broker the net total amount payable to the broker, and make
the withdrawals from the Margin Account and the Senior Security
Account, as the same are specified in the Certificate.
ARTICLE VIII
REPURCHASE AND REVERSE REPURCHASE AGREEMENTS
1. Promptly after the Fund enters a Repurchase Agreement or
a Reverse Repurchase Agreement with respect to Securities and money
held by the Custodian hereunder, the Fund shall deliver to the
Custodian a Certificate, or in the event such Repurchase Agreement
or Reverse Repurchase Agreement is a Money Market Security, a
Certificate, Oral Instructions, or Written Instructions specifying:
(a) the Series for which the Repurchase Agreement or Reverse
Repurchase Agreement is entered; (b) the total amount payable to or
by the Fund in connection with such Repurchase Agreement or Reverse
Repurchase Agreement and specifically allocated to such Series; (c)
the broker, dealer, or financial institution with whom the
Repurchase Agreement or Reverse Repurchase Agreement is entered;
(d) the amount and kind of Securities to be delivered or received
by the Fund to or from such broker, dealer, or financial
institution; (e) the date of such Repurchase Agreement or Reverse
Repurchase Agreement; and (f) the amount of cash and/or the amount
and kind of Securities, if any, specifically allocated to such
Series to be deposited in a Senior Security Account for such Series
in connection with such Reverse Repurchase Agreement. The
Custodian shall, upon receipt of the total amount payable to or by
the Fund specified in the Certificate, Oral Instructions, or
Written Instructions make or accept the delivery to or from the
broker, dealer, or financial institution and the deposits, if any,
to the Senior Security Account, specified in such Certificate, Oral
Instructions, or Written Instructions.
2. Upon the termination of a Repurchase Agreement or a
Reverse Repurchase Agreement described in preceding paragraph 1 of
this Article, the Fund shall promptly deliver a Certificate or, in
the event such Repurchase Agreement or Reverse Repurchase Agreement
is a Money Market Security, a Certificate, Oral Instructions, or
Written Instructions to the Custodian specifying: (a) the
Repurchase Agreement or Reverse Repurchase Agreement being
terminated and the Series for which same was entered; (b) the total
amount payable to or by the Fund in connection with such
termination; (c) the amount and kind of Securities to be received
or delivered by the Fund and specifically allocated to such Series
in connection with such termination; (d) the date of termination;
(e) the name of the broker, dealer, or financial institution with
whom the Repurchase Agreement or Reverse Repurchase Agreement is to
be terminated; and (f) the amount of cash and/or the amount and
kind of Securities, if any, to be withdrawn from the Senior
Securities Account for such Series. The Custodian shall, upon
receipt or delivery of the amount and kind of Securities or cash to
be received or delivered by the Fund specified in the Certificate,
Oral Instructions, or Written Instructions, make or receive the
payment to or from the broker, dealer, or financial institution and
make the withdrawals, if any, from the Senior Security Account,
specified in such Certificate, Oral Instructions, or Written
Instructions.
3. The Certificates, Oral Instructions, or Written
Instructions described in paragraphs 1 and 2 of this Article may
with respect to any particular Repurchase Agreement or Reverse
Repurchase Agreement be combined and delivered to the Custodian at
the time of entering into such Repurchase Agreement or Reverse
Repurchase Agreement.
ARTICLE IX
LOANS OF PORTFOLIO SECURITIES OF THE FUND
1. Promptly after each loan of portfolio Securities
specifically allocated to a Series held by the Custodian hereunder,
the Fund shall deliver or cause to be delivered to the Custodian a
Certificate specifying with respect to each such loan: (a) the
Series to which the loaned Securities are specifically allocated;
(b) the name of the issuer and the title of the Securities, (c) the
number of shares or the principal amount loaned, (d) the date of
loan and delivery, (e) the total amount to be delivered to the
Custodian against the loan of the Securities, including the amount
of cash collateral and the premium, if any, separately identified,
and (f) the name of the broker, dealer, or financial institution to
which the loan was made. The Custodian shall deliver the
Securities thus designated to the broker, dealer or financial
institution to which the loan was made upon receipt of the total
amount designated in the Certificate as to be delivered against the
loan of Securities. The Custodian may accept payment in connection
with a delivery otherwise than through the Book-Entry System or a
Depository only in the form of a certified or bank cashier's check
payable to the order of the Fund or the Custodian drawn on New York
Clearing House funds.
2. In connection with each termination of a loan of
Securities by the Fund, the Fund shall deliver or cause to be
delivered to the Custodian a Certificate specifying with respect to
each such loan termination and return of Securities: (a) the Series
to which the loaned Securities are specifically allocated; (b) the
name of the issuer and the title of the Securities to be returned,
(c) the number of shares or the principal amount to be returned,
(d) the date of termination, (e) the total amount to be delivered
by the Custodian (including the cash collateral for such Securities
minus any offsetting credits as described in said Certificate), and
(f) the name of the broker, dealer, or financial institution from
which the Securities will be returned. The Custodian shall receive
all Securities returned from the broker, dealer, or financial
institution to which such Securities were loaned and upon receipt
thereof shall pay, out of the moneys held for the account of the
Fund, the total amount payable upon such return of Securities as
set forth in the Certificate.
ARTICLE X
CONCERNING MARGIN ACCOUNTS, SENIOR SECURITY
ACCOUNTS, AND COLLATERAL ACCOUNTS
1. The Custodian shall establish a Senior Security Account
and from time to time make such deposits thereto, or withdrawals
therefrom, as specified in a Certificate. Such Certificate shall
specify the Series for which such deposit or withdrawal is to be
made and the amount of cash and/or the amount and kind of
Securities specifically allocated to such Series to be deposited
in, or withdrawn from, such Senior Security Account for such
Series. In the event that the Fund fails to specify in a
Certificate the Series, the name of the issuer, the title and the
number of shares or the principal amount of any particular
Securities to be deposited by the Custodian into, or withdrawn
from, a Senior Securities Account, the Custodian shall be under no
obligation to make any such deposit or withdrawal and shall
promptly notify the Fund that no such deposit has been made.
2. The Custodian shall make deliveries or payments from a
Margin Account to the broker, dealer, futures commission merchant
or Clearing Member in whose name, or for whose benefit, the account
was established as specified in the Margin Account Agreement.
3. Amounts received by the Custodian as payments or
distributions with respect to Securities deposited in any Margin
Account shall be dealt with in accordance with the terms and
conditions of the Margin Account Agreement.
4. The Custodian shall to the extent permitted by the Fund's
Declaration of Trust, investment restrictions and the Investment
Company Act of 1940 have a continuing lien and security interest in
and to any property at any time held by the Custodian in any
Collateral Account described herein. In accordance with applicable
law the Custodian may enforce its lien and realize on any such
property whenever the Custodian has made payment or delivery
pursuant to any Put Option guarantee letter or similar document or
any receipt issued hereunder by the Custodian; provided, however,
that the Custodian shall not be required to issue any Put Option
guarantee letter unless it shall have received an opinion of
counsel to the Fund or its investment adviser that the issuance of
such letters is authorized by the Fund and that the Custodian's
continuing lien and security interest is valid, enforceable and not
limited by the Declaration of Trust, any investment restrictions or
the Investment Company Act of 1940. In the event the Custodian
should realize on any such property net proceeds which are less
than the Custodian's obligations under any Put Option guarantee
letter or similar document or any receipt, such deficiency shall be
a debt owed the Custodian by the Fund within the scope of Article
XIV herein.
5. On each business day the Custodian shall furnish the Fund
with a statement with respect to each Margin Account in which money
or Securities are held specifying as of the close of business on
the previous business day: (a) the name of the Margin Account; (b)
the amount and kind of Securities held therein; and (c) the amount
of money held therein. The Custodian shall make available upon
request to any broker, dealer, or futures commission merchant
specified in the name of a Margin Account a copy of the statement
furnished the Fund with respect to such Margin Account.
6. The Custodian shall establish a Collateral Account and
from time to time shall make such deposits thereto as may be
specified in a Certificate. Promptly after the close of business
on each business day in which cash and/or Securities are maintained
in a Collateral Account for any Series, the Custodian shall furnish
the Fund with a statement with respect to such Collateral Account
specifying the amount of cash and/or the amount and kind of
Securities held therein. No later than the close of business next
succeeding the delivery to the Fund of such statement, the Fund
shall furnish to the Custodian a Certificate or Written
Instructions specifying the then market value of the Securities
described in such statement. In the event such then market value
is indicated to be less than the Custodian's obligation with
respect to any outstanding Put Option guarantee letter or similar
document, the Fund shall promptly specify in a Certificate the
additional cash and/or Securities to be deposited in such
Collateral Account to eliminate such deficiency.
ARTICLE XI
PAYMENT OF DIVIDENDS OR DISTRIBUTIONS
1. The Fund shall furnish to the Custodian a copy of the
resolution of the Board of Trustees of the Fund, certified by the
Secretary or any Assistant Secretary, either (i) setting forth with
respect to the Series specified therein the date of the declaration
of a dividend or distribution, the date of payment thereof, the
record date as of which shareholders entitled to payment shall be
determined, the amount payable per Share of such Series to the
shareholders of record as of that date and the total amount payable
to the Transfer Agent Account and any sub-dividend agent or co-
dividend agent of the Fund on the payment date, or (ii) authorizing
with respect to the Series specified therein and the declaration of
dividends and distributions thereon the Custodian to rely on Oral
Instructions, Written Instructions, or a Certificate setting forth
the date of the declaration of such dividend or distribution, the
date of payment thereof, the record date as of which shareholders
entitled to payment shall be determined, the amount payable per
Share of such Series to the shareholders of record as of that date
and the total amount payable to the Transfer Agent Account on the
payment date.
2. Upon the payment date specified in such resolution, Oral
Instructions, Written Instructions, or Certificate, as the case may
be, the Custodian shall pay to the Transfer Agent Account out of
the moneys held for the account of the Series specified therein the
total amount payable to the Transfer Agent Account and with respect
to such Series.
ARTICLE XII
SALE AND REDEMPTION OF SHARES
1. Whenever the Fund shall sell any Shares, it shall deliver
or cause to be delivered, to the Custodian a Certificate duly
specifying:
(a) The Series, the number of Shares sold, trade
date, and price; and
(b) The amount of money to be received by the
Custodian for the sale of such Shares and specifically allocated to
the separate account in the name of such Series.
2. Upon receipt of such money from the Fund's General
Distributor, the Custodian shall credit such money to the separate
account in the name of the Series for which such money was
received.
3. Upon issuance of any Shares of any Series the Custodian
shall pay, out of the money held for the account of such Series,
all original issue or other taxes required to be paid by the Fund
in connection with such issuance upon the receipt of a Certificate
specifying the amount to be paid.
4. Except as provided hereinafter, whenever the Fund desires
the Custodian to make payment out of the money held by the
Custodian hereunder in connection with a redemption of any Shares,
it shall furnish, or cause to be furnished, to the Custodian a
Certificate specifying:
(a) The number and Series of Shares redeemed; and
(b) The amount to be paid for such Shares.
5. Upon receipt of an advice from an Authorized Person
setting forth the Series and number of Shares received by the
Transfer Agent for redemption and that such Shares are in good form
for redemption, the Custodian shall make payment to the Transfer
Agent Account out of the moneys held in the separate account in the
name of the Series the total amount specified in the Certificate
issued pursuant to the foregoing paragraph 4 of this Article.
ARTICLE XIII
OVERDRAFTS OR INDEBTEDNESS
1. If the Custodian should in its sole discretion advance
funds on behalf of any Series which results in an overdraft because
the moneys held by the Custodian in the separate account for such
Series shall be insufficient to pay the total amount payable upon
a purchase of Securities specifically allocated to such Series, as
set forth in a Certificate, Oral Instructions, or Written
Instructions or which results in an overdraft in the separate
account of such Series for some other reason, or if the Fund is for
any other reason indebted to the Custodian with respect to a
Series, (except a borrowing for investment or for temporary or
emergency purposes using Securities as collateral pursuant to a
separate agreement and subject to the provisions of paragraph 2 of
this Article), such overdraft or indebtedness shall be deemed to be
a loan made by the Custodian to the Fund for such Series payable on
demand and shall bear interest from the date incurred at a rate per
annum (based on a 360-day year for the actual number of days
involved) equal to the Federal Funds Rate plus 1/2%, such rate to be
adjusted on the effective date of any change in such Federal Funds
Rate but in no event to be less than 6% per annum. In addition,
unless the Fund has given a Certificate that the Custodian shall
not impose a lien and security interest to secure such overdrafts
(in which event it shall not do so), the Custodian shall have a
continuing lien and security interest in the aggregate amount of
such overdrafts and indebtedness as may from time to time exist in
and to any property specifically allocated to such Series at any
time held by it for the benefit of such Series or in which the Fund
may have an interest which is then in the Custodian's possession or
control or in possession or control of any third party acting in
the Custodian's behalf. The Fund authorizes the Custodian, in its
sole discretion, at any time to charge any such overdraft or
indebtedness, together with interest due thereon, against any money
balance in an account standing in the name of such Series' credit
on the Custodian's books. In addition, the Fund hereby covenants
that on each Business Day on which either it intends to enter a
Reverse Repurchase Agreement and/or otherwise borrow from a third
party, or which next succeeds a Business Day on which at the close
of business the Fund had outstanding a Reverse Repurchase Agreement
or such a borrowing, it shall prior to 9 a.m., New York City time,
advise the Custodian, in writing, of each such borrowing, shall
specify the Series to which the same relates, and shall not incur
any indebtedness, including pursuant to any Reverse Repurchase
Agreement, not so specified other than from the Custodian.
2. The Fund will cause to be delivered to the Custodian by
any bank (including, if the borrowing is pursuant to a separate
agreement, the Custodian) from which it borrows money for
investment or for temporary or emergency purposes or for any
purpose described in its then current prospectus, using Securities
held by the Custodian hereunder as collateral for such borrowings,
a notice or undertaking in the form currently employed by any such
bank setting forth the amount which such bank will loan to the Fund
against delivery of a stated amount of collateral. The Fund shall
promptly deliver to the Custodian a Certificate specifying with
respect to each such borrowing: (a) the Series to which such
borrowing relates; (b) the name of the bank, (c) the amount and
terms of the borrowing, which may be set forth by incorporating by
reference an attached promissory note, duly endorsed by the Fund,
or other loan agreement, (d) the time and date, if known, on which
the loan is to be entered into, (e) the date on which the loan
becomes due and payable, (f) the total amount payable to the Fund
on the borrowing date, (g) the market value of Securities to be
delivered as collateral for such loan, including the name of the
issuer, the title and the number of shares or the principal amount
of any particular Securities, and (h) a statement specifying
whether such loan is for investment purposes or for temporary or
emergency purposes or for any purpose described in its then current
prospectus, and that such loan is in conformance with the
Investment Company Act of 1940 and the Fund's prospectus and
Statement of Additional Information. The Custodian shall deliver
on the borrowing date specified in a Certificate the specified
collateral and the executed promissory note, if any, against
delivery by the lending bank of the total amount of the loan
payable, provided that the same conforms to the total amount
payable as set forth in the Certificate. The Custodian may, at the
option of the lending bank, keep such collateral in its possession,
but such collateral shall be subject to all rights therein given
the lending bank by virtue of any promissory note or loan
agreement. The Custodian shall deliver such Securities as
additional collateral as may be specified in a Certificate to
collateralize further any transaction described in this paragraph.
The Fund shall cause all Securities released from collateral status
to be returned directly to the Custodian, and the Custodian shall
receive from time to time such return of collateral as may be
tendered to it. In the event that the Fund fails to specify in a
Certificate the Series, the name of the issuer, the title and
number of shares or the principal amount of any particular
Securities to be delivered as collateral by the Custodian, to any
such bank, the Custodian shall not be under any obligation to
deliver any Securities.
ARTICLE XIV
CUSTODY OF ASSETS OUTSIDE THE U.S.
1. The Custodian is authorized and instructed to employ, as
its agent, as subcustodians for the securities and other assets of
the Fund maintained outside of the United States the Foreign
Subcustodians and Foreign Depositories designated on Schedule A
hereto. Except as provided in Schedule A, the Custodian shall
employ no other Foreign Custodian or Foreign Depository. The
Custodian and the Fund may amend Schedule A hereto from time to
time to agree to designate any additional Foreign Subcustodian or
Foreign Depository with which the Custodian has an agreement for
such entity to act as the Custodian's agent, as subcustodian, and
which the Custodian in its absolute discretion proposes to utilize
to hold any of the Fund's Foreign Property. Upon receipt of a
Certificate or Written Instructions from the Fund, the Custodian
shall cease the employment of any one or more of such subcustodians
for maintaining custody of the Fund's assets and such custodian
shall be deemed deleted from Schedule A.
2. The Custodian shall limit the securities and other assets
maintained in the custody of the Foreign Subcustodians to: (a)
"foreign securities," as defined in paragraph (c)(1) of Rule 17f-5
under the Investment Company Act of 1940, and (b) cash and cash
equivalents in such amounts as the Fund may determine to be
reasonably necessary to effect the foreign securities transactions
of the Fund.
3. The Custodian shall identify on its books as belonging to
the Fund, the Foreign Securities held by each Foreign Subcustodian.
4. Each agreement pursuant to which the Custodian employs a
Foreign Subcustodian shall be substantially in the form reviewed
and approved by the Fund and will not be amended in a way that
materially affects the Fund without the Fund's prior written
consent and shall:
(a) require that such institution establish custody
account(s) for the Custodian on behalf of the Fund and physically
segregate in each such account securities and other assets of the
fund, and, in the event that such institution deposits the
securities of the Fund in a Foreign Depository, that it shall
identify on its books as belonging to the Fund or the Custodian, as
agent for the Fund, the securities so deposited;
(b) provide that:
(1) 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 Subcustodian or its creditors, except a claim
of payment for their safe custody or administration;
(2) 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;
(3) adequate records will be maintained identifying
the assets as belonging to the Fund;
(4) the independent public accountants for the Fund
will be given access to the books and records of the Foreign
Subcustodian relating to its actions under its agreement with the
Custodian or confirmation of the contents of those records;
(5) the Fund will receive periodic reports with
respect to the safekeeping of the Fund's assets, including, but not
necessarily limited to, notification of any transfer to or from the
custody account(s); and
(6) assets of the Fund held by the Foreign
Subcustodian will be subject only to the instructions of the
Custodian or its agents.
(c) Require the institution to exercise reasonable care
in the performance of its duties and to indemnify, and hold
harmless, the Custodian 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, with the
exception of any such losses, damages, costs, expenses, liabilities
or claims arising as a result of an act of God. 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
Subcustodian as a consequence of any such loss, damage, cost,
expense, liability or claim of or to the Fund, if and to the extent
that the Fund has not been made whole for any such loss, damage,
cost, expense, liability or claim.
5. Upon receipt of a Certificate or Written Instructions,
which may be continuing instructions when deemed appropriate by the
parties, the Custodian shall on behalf of the Fund make or cause
its Foreign Subcustodian to transfer, exchange or deliver
securities owned by the Fund, except to the extent explicitly
prohibited therein. Upon receipt of a Certificate or Written
Instructions, which may be continuing instructions when deemed
appropriate by the parties, the Custodian shall on behalf of the
fund pay out or cause its Foreign Subcustodians to pay out monies
of the Fund. The Custodian shall use all means reasonably
available to it, including, if specifically authorized by the Fund
in a Certificate, any necessary litigation at the cost and expense
of the Fund (except as to matters for which the Custodian is
responsible hereunder) to require or compel each Foreign
Subcustodian or Foreign Depository to perform the services required
of it by the agreement between it and the Custodian authorized
pursuant to this Agreement.
6. The Custodian shall maintain all books and records as
shall be necessary to enable the Custodian readily to perform the
services required of it hereunder with respect to the Fund's
Foreign Properties. The Custodians shall supply to the Fund from
time to time, as mutually agreed upon, statements in respect of the
Foreign Securities and other Foreign Properties of the Fund held by
Foreign Subcustodians, directly or through Foreign Depositories,
including but not limited to an identification of entities having
possession of the Fund's Foreign Securities and other assets, an
advice or other notification of any transfers of securities to or
from each custodial account maintained for the Fund or 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. The Custodian shall promptly and
faithfully transmit all reports and information received pertaining
to the Foreign Property of the Fund, including, without limitation,
notices or reports of corporate action, proxies and proxy
soliciting materials.
7. Upon request of the Fund, the Custodian shall use
reasonable efforts to arrange for the independent accountants of
the Fund to be afforded access to the books and records of any
Foreign Subcustodian, or confirmation of the contents thereof,
insofar as such books and records relate to the Foreign Property of
the Fund or the performance of such Foreign Subcustodian under its
agreement with the Custodian; provided that any litigation to
afford such access shall be at the sole cost and expense of the
Fund.
8. The Custodian recognizes that employment of a Foreign
Subcustodian or Foreign Depository for the Fund's Foreign
Securities and Foreign Property is permitted by Section 17(f) of
the Investment Company Act of 1940 only upon compliance with
Section (a) of Rule 17f-5 promulgated thereunder. With respect to
the Foreign Subcustodians and Foreign Depositories identified on
Schedule A, the Custodian represents that it has furnished the Fund
with certain materials prepared by the Custodian and with such
other information in the possession of the Custodian as the Fund
advised the Custodian was reasonably necessary to assist the Board
of Trustees of the Fund in making the determinations required of
the Board of Trustees by Rule 17f-5, including, without limitation,
consideration of the matters set forth in the Notes to Rule 17f-5.
If the Custodian recommends any additional Foreign Subcustodian or
Foreign Depository, the Custodian shall supply information similar
in kind and scope to that furnished pursuant to the preceding
sentence. Further, the Custodian shall furnish annually to the
Fund, at such time as the Fund and Custodian shall mutually agree,
information concerning each Foreign Subcustodian and Foreign
Depository then identified on Schedule A similar in kind and scope
to that furnished pursuant to the preceding two sentences.
9. The Custodian s employment of any Foreign Subcustodian or
Foreign Depository shall constitute a representation that the
Custodian believes in good faith that such Foreign Subcustodian or
Foreign Depository provides a reasonable level of safeguards for
maintaining the Fund s assets in light of prevailing settlement and
securities handling practices, procedures and controls in the
relevant market. In addition, the Custodian shall monitor the
financial condition and general operational performance of the
Foreign Subcustodians and Foreign Depositories and shall promptly
inform the Fund in the event that the Custodian has actual
knowledge of a material adverse change in the financial condition
thereof or that there appears to be a substantial likelihood that
the shareholders' equity of any Foreign Subcustodian will decline
below $200 million (U.S. dollars or the equivalent thereof) or that
its shareholders' equity has declined below $200 million, or that
the Foreign Subcustodian or Foreign Depository has breached the
agreement between it and the Custodian in a way that the Custodian
believes adversely affects the Fund. Further, the Custodian shall
advise the Fund if it believes that there is a material adverse
change in the operating environment of any Foreign Subcustodian or
Foreign Depository.
ARTICLE XV
CONCERNING THE CUSTODIAN
1. The Custodian shall use reasonable care in the
performance of its duties hereunder, and, except as hereinafter
provided, neither the Custodian nor its nominee shall be liable for
any loss or damage, including counsel fees, resulting from its
action or omission to act or otherwise, either hereunder or under
any Margin Account Agreement, except for any such loss or damage
arising out of its own negligence, bad faith, or willful misconduct
or that of the subcustodians or co-custodians appointed by the
Custodian or of the officers, employees, or agents of any of them.
The Custodian may, with respect to questions of law arising
hereunder or under any Margin Account Agreement, apply for and
obtain the advice and opinion of counsel to the Fund, at the
expense of the Fund, or of its own counsel, at its own expense, and
shall be fully protected with respect to anything done or omitted
by it in good faith in conformity with such advice or opinion. The
Custodian shall be liable to the Fund for any loss or damage
resulting from the use of the Book-Entry System or any Depository
arising by reason of any negligence, bad faith or willful
misconduct on the part of the Custodian or any of its employees or
agents.
2. Notwithstanding the foregoing, the Custodian shall be
under no obligation to inquire into, and shall not be liable for:
(a) The validity (but not the authenticity) of the issue
of any Securities purchased, sold, or written by or for the Fund,
the legality of the purchase, sale or writing thereof, or the
propriety of the amount paid or received therefor, as specified in
a Certificate, Oral Instructions, or Written Instructions;
(b) The legality of the sale or redemption of any
Shares, or the propriety of the amount to be received or paid
therefor, as specified in a Certificate;
(c) The legality of the declaration or payment of any
dividend by the Fund, as specified in a resolution, Certificate,
Oral Instructions, or Written Instructions;
(d) The legality of any borrowing by the Fund using
Securities as collateral;
(e) The legality of any loan of portfolio Securities,
nor shall the Custodian be under any duty or obligation to see to
it that the cash collateral delivered to it by a broker, dealer, or
financial institution or held by it at any time as a result of such
loan of portfolio Securities of the Fund is adequate collateral for
the Fund against any loss it might sustain as a result of such
loan, except that this subparagraph shall not excuse any liability
the Custodian may have for failing to act in accordance with
Article X hereof or any Certificate, Oral Instructions or Written
Instructions given in accordance with this Agreement. The
Custodian specifically, but not by way of limitation, shall not be
under any duty or obligation periodically to check or notify the
Fund that the amount of such cash collateral held by it for the
Fund is sufficient collateral for the Fund, but such duty or
obligation shall be the sole responsibility of the Fund. In
addition, the Custodian shall be under no duty or obligation to see
that any broker, dealer or financial institution to which portfolio
Securities of the Fund are lent pursuant to Article X of this
Agreement makes payment to it of any dividends or interest which
are payable to or for the account of the Fund during the period of
such loan or at the termination of such loan, provided, however,
that the Custodian shall promptly notify the Fund in the event that
such dividends or interest are not paid and received when due; or
(f) The sufficiency or value of any amounts of money
and/or Securities held in any Margin Account, Senior Security
Account or Collateral Account in connection with transactions by
the Fund, except that this subparagraph shall not excuse any
liability the Custodian may have for failing to establish,
maintain, make deposits to or withdrawals from such accounts in
accordance with this Agreement. In addition, the Custodian shall
be under no duty or obligation to see that any broker, dealer,
futures commission merchant or Clearing Member makes payment to the
Fund of any variation margin payment or similar payment which the
Fund may be entitled to receive from such broker, dealer, futures
commission merchant or Clearing Member, to see that any payment
received by the Custodian from any broker, dealer, futures
commission merchant or Clearing Member is the amount the Fund is
entitled to receive, or to notify the Fund of the Custodian's
receipt or non-receipt of any such payment.
3. The Custodian shall not be liable for, or considered to
be the Custodian of, any money, whether or not represented by any
check, draft, or other instrument for the payment of money,
received by it on behalf of the Fund until the Custodian actually
receives such money directly or by the final crediting of the
account representing the Fund's interest at the Book-Entry System
or the Depository.
4. With respect to Securities held in a Depository, except
as otherwise provided in paragraph 5(b) of Article III hereof, the
Custodian shall have no responsibility and shall not be liable for
ascertaining or acting upon any calls, conversions, exchange
offers, tenders, interest rate changes or similar matters relating
to such Securities, unless the Custodian shall have actually
received timely notice from the Depository in which such Securities
are held. In no event shall the Custodian have any responsibility
or liability for the failure of a Depository to collect, or for the
late collection or late crediting by a Depository of any amount
payable upon Securities deposited in a Depository which may mature
or be redeemed, retired, called or otherwise become payable.
However, upon receipt of a Certificate from the Fund of an overdue
amount on Securities held in a Depository the Custodian shall make
a claim against the Depository on behalf of the Fund, except that
the Custodian shall not be under any obligation to appear in,
prosecute or defend any action suit or proceeding in respect to any
Securities held by a Depository which in its opinion may involve it
in expense or liability, unless indemnity satisfactory to it
against all expense and liability be furnished as often as may be
required, or alternatively, the Fund shall be subrogated to the
rights of the Custodian with respect to such claim against the
Depository should it so request in a Certificate. This paragraph
shall not, however, excuse any failure by the Custodian to act in
accordance with a Certificate, Oral Instructions, or Written
Instructions given in accordance with this Agreement.
5. The Custodian shall not be under any duty or obligation
to take action to effect collection of any amount due the Fund from
the Transfer Agent of the Fund nor to take any action to effect
payment or distribution by the Transfer Agent of the Fund of any
amount paid by the Custodian to the Transfer Agent of the Fund in
accordance with this Agreement.
6. The Custodian shall not be under any duty or obligation
to take action to effect collection of any amount if the Securities
upon which such amount is payable are in default, or if payment is
refused after the Custodian has timely and properly, in accordance
with this Agreement, made due demand or presentation, unless and
until (i) it shall be directed to take such action by a Certificate
and (ii) it shall be assured to its satisfaction of reimbursement
of its costs and expenses in connection with any such action, but
the Custodian shall have such a duty if the Securities were not in
default on the payable date and the Custodian failed to timely and
properly make such demand for payment and such failure is the
reason for the non-receipt of payment.
7. The Custodian may, with the prior approval of the Board
of Trustees of the Fund, appoint one or more banking institutions
as subcustodian or subcustodians, or as co-Custodian or co-
Custodians, of Securities and moneys at any time owned by the Fund,
upon such terms and conditions as may be approved in a Certificate
or contained in an agreement executed by the Custodian, the Fund
and the appointed institution; provided, however, that appointment
of any foreign banking institution or depository shall be subject
to the provisions of Article XV hereof.
8. The Custodian agrees to indemnify the Fund against and
save the Fund harmless from all liability, claims, losses and
demands whatsoever, including attorney's fees, howsoever arising or
incurred because of the negligence, bad faith or willful misconduct
of any subcustodian of the Securities and moneys owned by the Fund.
9. The Custodian shall not be under any duty or obligation
(a) to ascertain whether any Securities at any time delivered to,
or held by it, for the account of the Fund and specifically
allocated to a Series are such as properly may be held by the Fund
or such Series under the provisions of its then current prospectus,
or (b) to ascertain whether any transactions by the Fund, whether
or not involving the Custodian, are such transactions as may
properly be engaged in by the Fund.
10. The Custodian shall be entitled to receive and the Fund
agrees to pay to the Custodian all reasonable out-of-pocket
expenses and such compensation as may be agreed upon in writing
from time to time between the Custodian and the Fund. The
Custodian may charge such compensation, and any such expenses with
respect to a Series incurred by the Custodian in the performance of
its duties under this Agreement against any money specifically
allocated to such Series. The Custodian shall also be entitled to
charge against any money held by it for the account of a Series the
amount of any loss, damage, liability or expense, including counsel
fees, for which it shall be entitled to reimbursement under the
provisions of this Agreement attributable to, or arising out of,
its serving as Custodian for such Series. The expenses for which
the Custodian shall be entitled to reimbursement hereunder shall
include, but are not limited to, the expenses of subcustodians and
foreign branches of the Custodian incurred in settling outside of
New York City transactions involving the purchase and sale of
Securities of the Fund. Notwithstanding the foregoing or anything
else contained in this Agreement to the contrary, the Custodian
shall, prior to effecting any charge for compensation, expenses, or
any overdraft or indebtedness or interest thereon, submit an
invoice therefor to the Fund.
11. The Custodian shall be entitled to rely upon any
Certificate, notice or other instrument in writing, Oral
Instructions, or Written Instructions received by the Custodian and
reasonably believed by the Custodian to be genuine. The Fund
agrees to forward to the Custodian a Certificate or facsimile
thereof confirming Oral Instructions or Written Instructions in
such manner so that such Certificate or facsimile thereof is
received by the Custodian, whether by hand delivery, telecopier or
other similar device, or otherwise, by the close of business of the
same day that such Oral Instructions or Written Instructions are
given to the Custodian. The Fund agrees that the fact that such
confirming instructions are not received by the Custodian shall in
no way affect the validity of the transactions or enforceability of
the transactions thereby authorized by the Fund. The Fund agrees
that the Custodian shall incur no liability to the Fund in acting
upon Oral Instructions or Written Instructions given to the
Custodian hereunder concerning such transactions provided such
instructions reasonably appear to have been received from an
Authorized Person.
12. The Custodian shall be entitled to rely upon any
instrument, instruction or notice received by the Custodian and
reasonably believed by the Custodian to be given in accordance with
the terms and conditions of any Margin Account Agreement. Without
limiting the generality of the foregoing, the Custodian shall be
under no duty to inquire into, and shall not be liable for, the
accuracy of any statements or representations contained in any such
instrument or other notice including, without limitation, any
specification of any amount to be paid to a broker, dealer, futures
commission merchant or Clearing Member. This paragraph shall not
excuse any failure by the Custodian to have acted in accordance
with any Margin Agreement it has executed or any Certificate, Oral
Instructions, or Written Instructions given in accordance with this
Agreement.
13. The books and records pertaining to the Fund, as
described in Appendix E hereto, which are in the possession of the
Custodian shall be the property of the Fund. Such books and
records shall be prepared and maintained by the Custodian as
required by the Investment Company Act of 1940, as amended, and
other applicable Securities laws and rules and regulations. The
Fund, or the Fund's authorized representatives, shall have access
to such books and records during the Custodian's normal business
hours. Upon the reasonable request of the Fund, copies of any such
books and records shall be provided by the Custodian to the Fund or
the Fund's authorized representative, and the Fund shall reimburse
the Custodian its expenses of providing such copies. Upon
reasonable request of the Fund, the Custodian shall provide in hard
copy or on micro-film, whichever the Custodian elects, any records
included in any such delivery which are maintained by the Custodian
on a computer disc, or are similarly maintained, and the Fund shall
reimburse the Custodian for its expenses of providing such hard
copy or micro-film.
14. The Custodian shall provide the Fund with any report
obtained by the Custodian on the system of internal accounting
control of the Book-Entry system, each Depository or O.C.C., and
with such reports on its own systems of internal accounting control
as the Fund may reasonably request from time to time.
15. The Custodian shall furnish upon request annually to the
Fund a letter prepared by the Custodian's accountants with respect
to the Custodian's internal systems and controls in the form
generally provided by the Custodian to other investment companies
for which the Custodian acts as custodian.
16. The Fund agrees to indemnify the Custodian against and
save the Custodian harmless from all liability, claims, losses and
demands whatsoever, including attorney's fees, howsoever arising
out of, or related to, the Custodian's performance of its
obligations under this Agreement, except for any such liability,
claim, loss and demand arising out of the negligence, bad faith, or
willful misconduct of the Custodian, any co-Custodian or
subcustodian appointed by the Custodian, or that of the officers,
employees, or agents of any of them.
17. Subject to the foregoing provisions of this Agreement,
the Custodian shall deliver and receive Securities, and receipts
with respect to such Securities, and shall make and receive
payments only in accordance with the customs prevailing from time
to time among brokers or dealers in such Securities and, except as
may otherwise be provided by this Agreement or as may be in
accordance with such customs, shall make payment for Securities
only against delivery thereof and deliveries of Securities only
against payment therefor.
18. The Custodian will comply with the procedures, guidelines
or restrictions ("Procedures") adopted by the Fund from time to
time for particular types of investments or transactions, e.g.,
Repurchase Agreements and Reverse Repurchase Agreements, provided
that the Custodian has received from the Fund a copy of such
Procedures. If within ten days after receipt of any such
Procedures, the Custodian determines in good faith that it is
unreasonable for it to comply with any new procedures, guidelines
or restrictions set forth therein, it may within such ten day
period send notice to the Fund that it does not intend to comply
with those new procedures, guidelines or restrictions which it
identifies with particularity in such notice, in which event the
Custodian shall not be required to comply with such identified
procedures, guidelines or restrictions; provided, however, that,
anything to the contrary set forth herein or in any other agreement
with the Fund, if the Custodian identifies procedures, guidelines
or restrictions with which it does not intend to comply, the Fund
shall be entitled to terminate this Agreement without cost or
penalty to the Fund upon thirty days' written notice.
19. Whenever the Custodian has the authority to deduct monies
from the account for a series without a Certificate, it shall
notify the Fund within one business day of such deduction and the
reason for it. Whenever the Custodian has the authority to sell
Securities or any other property of the Fund on behalf of any
Series without a Certificate, the Custodian will notify the Fund of
its intention to do so and afford the Fund the reasonable
opportunity to select which Securities or other property it wishes
to sell on behalf of such Series. If the Fund does not promptly
sell sufficient Securities or Deposited Property on behalf of the
Series, then, after notice, the Custodian may proceed with the
intended sale.
20. The Custodian shall have no duties or responsibilities
whatsoever except such duties and responsibilities as are
specifically set forth or referred to in this Agreement, and no
covenant or obligation shall be implied in this Agreement against
the Custodian.
ARTICLE XVI
TERMINATION
1. Except as provided in paragraph 3 of this Article, this
Agreement shall continue until terminated by either the Custodian
giving to the Fund, or the Fund giving to the Custodian, a notice
in writing specifying the date of such termination, which date
shall be not less than 60 days after the date of the giving of such
notice. In the event such notice or a notice pursuant to paragraph
3 of this Article is given by the Fund, it shall be accompanied by
a copy of a resolution of the Board of Trustees of the Fund,
certified by an Officer and the Secretary or an Assistant Secretary
of the Fund, electing to terminate this Agreement and designating
a successor custodian or custodians, each of which shall be
eligible to serve as a custodian for the Securities of a management
investment company under the Investment Company Act of 1940. In
the event such notice is given by the Custodian, the Fund shall, on
or before the termination date, deliver to the Custodian a copy of
a resolution of the Board of Trustees of the Fund, certified by the
Secretary or any Assistant Secretary, designating a successor
custodian or custodians. In the absence of such designation by the
Fund, the Custodian may designate a successor custodian which shall
be a bank or trust company eligible to serve as a custodian for
Securities of a management investment company under the Investment
Company Act of 1940 and which is acceptable to the Fund. Upon the
date set forth in such notice this Agreement shall terminate, and
the Custodian shall upon receipt of a notice of acceptance by the
successor custodian on that date deliver directly to the successor
custodian all Securities and moneys then owned by the Fund and held
by it as Custodian, after deducting all fees, expenses and other
amounts for the payment or reimbursement of which it shall then be
entitled.
2. If a successor custodian is not designated by the Fund or
the Custodian in accordance with the preceding paragraph, the Fund
shall upon the date specified in the notice of termination of this
Agreement and upon the delivery by the Custodian of all Securities
(other than Securities held in the Book-Entry System which cannot
be delivered to the Fund) and moneys then owned by the Fund be
deemed to be its own custodian and the Custodian shall thereby be
relieved of all duties and responsibilities pursuant to this
Agreement arising thereafter, other than the duty with respect to
Securities held in the Book Entry System which cannot be delivered
to the Fund to hold such Securities hereunder in accordance with
this Agreement.
3. Notwithstanding the foregoing, the Fund may terminate
this Agreement upon the date specified in a written notice in the
event of the "Bankruptcy" of The Bank of New York. As used in this
sub-paragraph, the term "Bankruptcy" shall mean The Bank of New
York's making a general assignment, arrangement or composition with
or for the benefit of its creditors, or instituting or having
instituted against it a proceeding seeking a judgment of insolvency
or bankruptcy or the entry of a order for relief under any
applicable bankruptcy law or any other relief under any bankruptcy
or insolvency law or other similar law affecting creditors rights,
or if a petition is presented for the winding up or liquidation of
the party or a resolution is passed for its winding up or
liquidation, or it seeks, or becomes subject to, the appointment of
an administrator, receiver, trustee, custodian or other similar
official for it or for all or substantially all of its assets or
its taking any action in furtherance of, or indicating its consent
to approval of, or acquiescence in, any of the foregoing.
ARTICLE XVII
TERMINAL LINK
1. At no time and under no circumstances shall the Fund be
obligated to have or utilize the Terminal Link, and the provisions
of this Article shall apply if, but only if, the Fund in its sole
and absolute discretion elects to utilize the Terminal Link to
transmit Certificates to the Custodian.
2. The Terminal Link shall be utilized only for the purpose
of the Fund providing Certificates to the Custodian and the
Custodian providing notices to the Fund and only after the Fund
shall have established access codes and internal safekeeping
procedures to safeguard and protect the confidentiality and
availability of such access codes. Each use of the Terminal Link
by the Fund shall constitute a representation and warranty that at
least two officers have each utilized an access code that such
internal safekeeping procedures have been established by the Fund,
and that such use does not contravene the Investment Company Act of
1940 and the rules and regulations thereunder.
3. Each party shall obtain and maintain at its own cost and
expense all equipment and services, including, but not limited to
communications services, necessary for it to utilize the Terminal
Link, and the other party shall not be responsible for the
reliability or availability of any such equipment or services,
except that the Custodian shall not pay any communications costs of
any line leased by the Fund, even if such line is also used by the
Custodian.
4. The Fund acknowledges that any data bases made available
as part of, or through the Terminal Link and any proprietary data,
software, processes, information and documentation (other than any
such which are or become part of the public domain or are legally
required to be made available to the public) (collectively, the
"Information"), are the exclusive and confidential property of the
Custodian. The Fund shall, and shall cause others to which it
discloses the Information, to keep the Information confidential by
using the same care and discretion it uses with respect to its own
confidential property and trade secrets, and shall neither make nor
permit any disclosure without the express prior written consent of
the Custodian.
5. Upon termination of this Agreement for any reason, each
Fund shall return to the Custodian any and all copies of the
Information which are in the Fund's possession or under its
control, or which the Fund distributed to third parties. The
provisions of this Article shall not affect the copyright status of
any of the Information which may be copyrighted and shall apply to
all Information whether or not copyrighted.
6. The Custodian reserves the right to modify the Terminal
Link from time to time without notice to the Fund, except that the
Custodian shall give the Fund notice not less than 75 days in
advance of any modification which would materially adversely affect
the Fund's operation, and the Fund agrees not to modify or attempt
to modify the Terminal Link without the Custodian's prior written
consent. The Fund acknowledges that any software provided by the
Custodian as part of the Terminal Link is the property of the
Custodian and, accordingly, the Fund agrees that any modifications
to the same, whether by the Fund or the Custodian and whether with
or without the Custodian's consent, shall become the property of
the Custodian.
7. Neither the Custodian nor any manufacturers and suppliers
it utilizes or the Fund utilizes in connection with the Terminal
Link makes any warranties or representations, express or implied,
in fact or in law, including but not limited to warranties of
merchantability and fitness for a particular purpose.
8. Each party will cause its officers and employees to treat
the authorization codes and the access codes applicable to Terminal
Link with extreme care, and irrevocably authorizes the other to act
in accordance with and rely on Certificates and notices received by
it through the Terminal Link. Each party acknowledges that it is
its responsibility to assure that only its authorized persons use
the Terminal Link on its behalf, and that a party shall not be
responsible nor liable for use of the Terminal Link on behalf of
the other party by unauthorized persons of such other party.
9. Notwithstanding anything else in this Agreement to the
contrary, neither party shall have any liability to the other for
any losses, damages, injuries, claims, costs or expenses arising as
a result of a delay, omission or error in the transmission of a
Certificate or notice by use of the Terminal Link except for money
damages for those suffered as the result of the negligence, bad
faith or willful misconduct of such party or its officers,
employees or agents in an amount not exceeding for any incident
$100,000; provided, however, that a party shall have no liability
under this Section 9 if the other party fails to comply with the
provisions of Section 11.
10. Without limiting the generality of the foregoing, in no
event shall either party or any manufacturer or supplier of its
computer equipment, software or services relating to the Terminal
Link be responsible for any special, indirect, incidental or
consequential damages which the other party may incur or experience
by reason of its use of the Terminal Link even if such party,
manufacturer or supplier has been advised of the possibility of
such damages, nor with respect to the use of the Terminal Link
shall either party or any such manufacturer or supplier be liable
for acts of God, or with respect to the following to the extent
beyond such person's reasonable control: machine or computer
breakdown or malfunction, interruption or malfunction of
communication facilities, labor difficulties or any other similar
or dissimilar cause.
11. The Fund shall notify the Custodian of any errors,
omissions or interruptions in, or delay or unavailability of, the
Terminal Link as promptly as practicable, and in any event within
24 hours after the earliest of (i) discovery thereof, and (ii) in
the case of any error, the date of actual receipt of the earliest
notice which reflects such error, it being agreed that discovery
and receipt of notice may only occur on a business day. The
Custodian shall promptly advise the Fund whenever the Custodian
learns of any errors, omissions or interruption in, or delay or
unavailability of, the Terminal Link.
12. Each party shall, as soon as practicable after its
receipt of a Certificate or a notice transmitted by the Terminal
Link, verify to the other party by use of the Terminal Link its
receipt of such Certificate or notice, and in the absence of such
verification the party to which the Certificate or notice is sent
shall not be liable for any failure to act in accordance with such
Certificate or notice and the sending party may not claim that such
Certificate or notice was received by the other party.
ARTICLE XVIII
MISCELLANEOUS
1. Annexed hereto as Appendix A is a Certificate signed by
two of the present Officers of the Fund under its seal, setting
forth the names and the signatures of the present Authorized
Persons. The Fund agrees to furnish to the Custodian a new
Certificate in similar form in the event that any such present
Authorized Person ceases to be an Authorized Person or in the event
that other or additional Authorized Persons are elected or
appointed. Until such new Certificate shall be received, the
Custodian shall be entitled to rely and to act upon Oral
Instructions, Written Instructions, or signatures of the present
Authorized Persons as set forth in the last delivered Certificate
to the extent provided by this Agreement.
2. Annexed hereto as Appendix B is a Certificate signed by
two of the present Officers of the Fund under its seal, setting
forth the names and the signatures of the present Officers of the
Fund. The Fund agrees to furnish to the Custodian a new
Certificate in similar form in the event any such present officer
ceases to be an officer of the Fund, or in the event that other or
additional officers are elected or appointed. Until such new
Certificate shall be received, the Custodian shall be entitled to
rely and to act upon the signatures of the officers as set forth in
the last delivered Certificate to the extent provided by this
Agreement.
3. Any notice or other instrument in writing, authorized or
required by this Agreement to be given to the Custodian, other than
any Certificate or Written Instructions, shall be sufficiently
given if addressed to the Custodian and mailed or delivered to it
at its offices at 00 Xxxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
or at such other place as the Custodian may from time to time
designate in writing.
4. Any notice or other instrument in writing, authorized or
rehired by this Agreement to be given to the Fund shall be
sufficiently given if addressed to the Fund and mailed or delivered
to it at its office at the address for the Fund first above
written, or at such other place as the Fund may from time to time
designate in writing.
5. This Agreement constitutes the entire agreement between
the parties, replaces all prior agreements and may not be amended
or modified in any manner except by a written agreement executed by
both parties with the same formality as this Agreement and approved
by a resolution of the Board of Trustees of the Fund, except that
Appendices A and B may be amended unilaterally by the Fund without
such an approving resolution.
6. This Agreement shall extend to and shall be binding upon
the parties hereto, and their respective successors and assigns;
provided, however, that this Agreement shall not be assignable by
the Fund without the written consent of the Custodian, or by the
Custodian or The Bank of New York without the written consent of
the Fund, authorized or approved by a resolution of the Fund's
Board of Trustees. For purposes of this paragraph, no merger,
consolidation, or amalgamation of the Custodian, The Bank of New
York, or the Fund shall be deemed to constitute an assignment of
this Agreement.
7. This Agreement shall be construed in accordance with the
laws of the State of New York without giving effect to conflict of
laws principles thereof. Each party hereby consents to the
jurisdiction of a state or federal court situated in New York City,
New York in connection with any dispute arising hereunder and
hereby waives its right to trial by jury.
8. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but
such counterparts shall, together, constitute only one instrument.
9. A copy of the Declaration of Trust of the Fund is on file
with the Secretary of The Commonwealth of Massachusetts, and notice
is hereby given that this instrument is executed on behalf of the
Board of Trustees of the Fund as Trustees and not individually and
that the obligations of the instrument are not binding upon any of
the Trustees or shareholders individually but are binding upon the
assets and property of the Fund; provided, however, that the
Declaration of Trust of the Fund provides that the assets of a
particular series of the Fund shall under no circumstances be
charges with liabilities attributable to any other series of the
Fund and that all persons extending credit to, or contracting with
or having any claim against a particular series of the Fund shall
look only to the assets of that particular series for payment of
such credit, contract or claim.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective Officers, thereunto
duly authorized and their respective seals to be hereunto affixed,
as of the day and year first above written.
XXXXXXXXXXX INTERNATIONAL SMALL
COMPANY FUND
By: ____________________________
Xxxxxx X. Xxxxxxx, Secretary
[SEAL]
Attest:
By: ____________________________________
Xxxxxx X. Xxxx, Assistant Secretary
THE BANK OF NEW YORK
By: ____________________________
Xxxxx Xxxxx, Vice President
[SEAL]
Attest:
APPENDIX A
I, Xxxxxx X. Xxxxxxx, Secretary, and I, Xxxxxx X. Xxxx,
Assistant Secretary, of Xxxxxxxxxxx International Small Company
Fund, a Massachusetts business trust (the "Fund") do hereby certify
that the following individuals have been duly authorized by the
Board of Trustees of the Fund in conformity with the Fund's
Declaration of Trust and By-Laws to give Oral Instructions and
Written Instructions on behalf of the Fund and further that the
signatures set forth opposite their respective names are their true
and correct signatures.
Name Position Signature
Xxxxxx X. Xxxxxxx Secretary _________________
Xxxxxx X. Xxxxx Treasurer _________________
Xxxxxx X. Xxxx Assistant Secretary _________________
Xxxxxx Xxxxxx Assistant Treasurer _________________
Xxxxx Xxxxxx Assistant Treasurer _________________
Xxxxx X. Xxxxx Vice President _________________
Xxxxx X. Xxxxxxxxx Vice President _________________
Xxxxxx Xxxxxx Vice President _________________
Xxxxx X. Xxxxx Senior Vice President _________________
OFI
Xxxxxx Xxxxx Senior Vice President _________________
OFI
Xxxxx Xxxxxxx Vice President OFI _________________
Xxxxxxxxx X. Xxxx Vice President OFI _________________
Xxxxxxxx X. Xxxxxxxx Vice President OFI _________________
Xxx Xxxxxx Vice President OFI _________________
Xxxxxxx X. Xxxxxxx Vice President OFI _________________
Xxxxx Xxxx Vice President OFI _________________
Xxxxxx Xxxxxxxx Assistant Vice President _________________
Xxxx Xxxxxxx Assistant Vice President _________________
Xxxxxx Xxxxxx Securities Trader _________________
Xxxx Xxxxxxx Securities Trader _________________
Xxxxx Xxxxxxx Securities Trader _________________
Xxxxx Xxxxxxx Securities Trader _________________
Xxxxxxx Xxxx Securities Trader _________________
Xxxxx Xxx Securities Trader _________________
Xxxxxxx Xxxxxx Securities Trader _________________
Xxxxxxx Xxxxxx Securities Trader _________________
Xxxxxxx Mon Securities Trader _________________
Xxxxxxx Xxxxx Securities Trader _________________
Xxxxx Xxxxxxx Securities Trader _________________
Xxxxx Xxx Securities Trader _________________
IN WITNESS WHEREOF, I hereunto set my hand in the seal of
Xxxxxxxxxxx International Small Company Fund as of the
day of , 1997.
______________________________
Xxxxxx X. Xxxxxxx, Secretary
______________________________
Xxxxxx X. Xxxx,
Assistant Secretary
APPENDIX B
I, Xxxxxx X. Xxxxxxx, Secretary, and I, Xxxxxx X. Xxxx,
Assistant Secretary, of Xxxxxxxxxxx International Small Company
Fund, a Massachusetts business trust (the "Fund"), do hereby
certify that:
(a) The following individuals serve in the following positions
with the Fund, each has been duly elected or appointed by the Board
of Trustees of the Fund to each such position and qualified
therefor in conformity with the Fund s Declaration of Trust and By-
Laws and further that the signatures of each individual below set
forth opposite their respective names are their true and correct
signatures:
Name Position Signature
Xxxxxx X. Xxxxxxx Secretary _________________
Xxxxxx X. Xxxxx Treasurer _________________
Xxxxxx X. Xxxx Assistant Secretary _________________
Xxxxxx Xxxxxx Assistant Treasurer _________________
Xxxxx Xxxxxx Assistant Treasurer _________________
Xxxxx X. Xxxxx Vice President _________________
Xxxxx X. Xxxxxxxxx Vice President _________________
Xxxxxx Xxxxxx Vice President _________________
Xxxxx X. Xxxxx Senior Vice President _________________
OFI
Xxxxxx Xxxxx Senior Vice President _________________
OFI
Xxxxx Xxxxxxx Vice President OFI _________________
Xxxxxxxxx X. Xxxx Vice President OFI _________________
Xxxxxxxx X. Xxxxxxxx Vice President OFI _________________
Xxx Xxxxxx Vice President OFI _________________
Xxxxxxx X. Xxxxxxx Vice President OFI _________________
Xxxxx Xxxx Vice President OFI _________________
Xxxxxx Xxxxxxxx Assistant Vice President _________________
Xxxx Xxxxxxx Assistant Vice President _________________
Xxxxxx Xxxxxx Securities Trader _________________
Xxxx Xxxxxxx Securities Trader _________________
Xxxxx Xxxxxxx Securities Trader _________________
Xxxxx Xxxxxxx Securities Trader _________________
Xxxxxxx Xxxx Securities Trader _________________
Xxxxx Xxx Securities Trader _________________
Xxxxxxx Xxxxxx Securities Trader _________________
Xxxxxxx Xxxxxx Securities Trader _________________
Xxxxxxx Mon Securities Trader _________________
Xxxxxxx Xxxxx Securities Trader _________________
Xxxxx Xxxxxxx Securities Trader _________________
Xxxxx Xxx Securities Trader _________________
IN WITNESS WHEREOF, I hereunto set my hand in the seal of
Xxxxxxxxxxx International Small Company Fund as of the
day of , 1997.
______________________________
Xxxxxx X. Xxxxxxx, Secretary
______________________________
Xxxxxx X. Xxxx,
Assistant Secretary
APPENDIX C
The undersigned, Xxxxxx X. Xxxxxxx, hereby certifies that he
is the duly elected and acting Secretary of Xxxxxxxxxxx
International Small Company Fund, a Massachusetts business trust,
(the "Fund"), and further certifies that the following resolutions
were adopted by the Board of Trustees of the Fund at a meeting duly
held on , at which a quorum was at all times
present and that such resolutions have not been modified or
rescinded and are in full force and effect as of the date hereof.
RESOLVED, that The Bank of New York, as Custodian
pursuant to a Custody Agreement to be entered into
between The Bank of New York and the Fund in
substantially the form of such agreement presented to
this meeting, (the "Custody Agreement") is authorized and
instructed on a continuous and ongoing basis to act in
accordance with, and to rely on instructions by the Fund
to the Custodian communicated by a Terminal Link as
defined in the Custody Agreement.
RESOLVED, that the Fund shall establish access codes and
grant use of such access codes only to officers of the
Fund as defined in the Custody Agreement, and shall
establish internal safekeeping procedures to safeguard
and protect the confidentiality and availability of such
access codes.
RESOLVED, that Officers of the Fund as defined in the
Custody Agreement shall, following the establishment of
such access codes and such internal safekeeping
procedures, advise the Custodian that the same have been
established by delivering a Certificate, as defined in
the Custody Agreement, and the Custodian shall be
entitled to rely upon such advise.
IN WITNESS WHEREOF, I hereunto set my hand in the seal of
Xxxxxxxxxxx International Small Company Fund as of the day
of , 1997.
____________________________
Xxxxxx X. Xxxxxxx
Secretary
APPENDIX D
I, Xxxxx Xxxxx, a Vice President with THE BANK OF NEW YORK,
do hereby designate the following publications pursuant to Article
II, Section 5(b) of this Agreement:
The Bond Buyer
Depository Trust Company Notices
Financial Daily Card Service
XX Xxxxxx Municipal Bond Service
London Financial Times
New York Times
Standard & Poor's Called Bond Record
Wall Street Journal
IN WITNESS WHEREOF, I hereunto set my hand in the seal of The
Bank of New York, as of the day of ,
1997.
___________________________
Xxxxx Xxxxx
Vice President
APPENDIX E
The following books and records pertaining to Fund shall be
prepared and maintained by the Custodian and shall be the property
of the Fund:
None.
EXHIBIT A
CERTIFICATION
The undersigned, Xxxxxx X. Xxxxxxx, hereby certifies that he
is the duly elected and acting Secretary of Xxxxxxxxxxx
International Small Company Fund, a Massachusetts business trust
(the "Fund"), and further certifies that the following resolution
was adopted by the Board of Trustees of the Fund at a meeting duly
held on , at which a quorum was at all times
present and that such resolution has not been modified or rescinded
and is in full force and effect as of the date hereof.
RESOLVED, that The Bank of New York, as Custodian
pursuant to a Custody Agreement to be entered into
between The Bank of New York and the Fund in
substantially the form of such agreement presented
to this meeting, (the "Custody Agreement") is
authorized and instructed on a continuous and
ongoing basis to deposit in the Book-Entry System,
as defined in the Custody Agreement, all Securities
eligible for deposit therein, regardless of the
Series to which the same are specifically
allocated, and to utilize the Book-Entry System to
the extent possible in connection with its
performance thereunder, including, without
limitation, in connection with settlements of
purchases and sales of Securities, loans of
Securities, and deliveries and returns of
Securities collateral.
IN WITNESS WHEREOF, I have hereunto set my hand and the seal
of Xxxxxxxxxxx International Small Company Fund, as of the ____ day
of , 1997.
____________________________
Xxxxxx X. Xxxxxxx
Secretary
[SEAL]
EXHIBIT B
The undersigned, Xxxxxx X. Xxxxxxx, hereby certifies that he
is the duly elected and acting Secretary of Xxxxxxxxxxx
International Small Company Fund, a Massachusetts business trust
(the "Fund"), and further certifies that the following resolution
was adopted by the Board of Trustees of the Fund at a meeting duly
held on , at which a quorum was at all times present
and that such resolution has not been modified or rescinded and is
in full force and effect as of the date hereof.
RESOLVED, that The Bank of New York, as Custodian
pursuant to a Custody Agreement to be entered into
between The Bank of New York and the Fund in
substantially the form of such agreement presented
to this meeting (the "Custody Agreement") is
authorized and instructed on a continuous and
ongoing basis until such time as it receives a
Certificate, as defined in the Custody Agreement,
to the contrary to deposit in The Depository Trust
Company ("DTC") as a "Depository" as defined in the
Custody Agreement, all Securities eligible for
deposit therein, regardless of the Series to which
the same are specifically allocated, and to utilize
DTC to the extent possible in connection with its
performance thereunder, including, without
limitation, in connection with settlements of
purchases and sales of Securities, loans of
Securities, and deliveries and returns of
Securities collateral.
IN WITNESS WHEREOF, I have hereunto set my hand and the seal
of Xxxxxxxxxxx International Small Company Fund, as of the ____
day of ________________, 1997.
____________________________
Xxxxxx X. Xxxxxxx
Secretary
[SEAL]
EXHIBIT B-1
CERTIFICATION
The undersigned, Xxxxxx X. Xxxxxxx, hereby certifies that he
is the duly elected and acting Secretary of Xxxxxxxxxxx
International Small Company Fund, a Massachusetts business trust
(the "Fund"), and further certifies that the following resolution
was adopted by the Board of Trustees of the Fund at a meeting duly
held on __________________, at which a quorum was at all times
present and that such resolution has not been modified or rescinded
and is in full force and effect as of the date hereof.
RESOLVED, that The Bank of New York, as Custodian
pursuant to a Custody Agreement to be entered into
between The Bank of New York and the Fund in
substantially the form of such agreement presented
to this meeting, 1996 (the "Custody Agreement") is
authorized and instructed on a continuous and
ongoing basis until such time as it receives a
Certificate, as defined in the Custody Agreement,
to the contrary to deposit in the Participants
Trust Company as a Depository, as defined in the
Custody Agreement, all Securities eligible for
deposit therein, regardless of the Series to which
the same are specifically allocated, and to utilize
the Participants Trust Company to the extent
possible in connection with its performance
thereunder, including, without limitation, in
connection with settlements of purchases and sales
of Securities, loans of Securities, and deliveries
and return of Securities collateral.
IN WITNESS WHEREOF, I have hereunto set my hand and the seal
of Xxxxxxxxxxx International Small Company Fund, as of the ____
day of ________________, 1997.
___________________________
Xxxxxx X. Xxxxxxx
Secretary
[SEAL]
EXHIBIT C
CERTIFICATION
The undersigned, Xxxxxx X. Xxxxxxx, hereby certifies that he
is duly elected and acting Secretary of Xxxxxxxxxxx International
Small Company Fund, a Massachusetts business trust (the "Fund") and
further certifies that the following resolution was adopted by the
Board of Trustees of the Fund at a meeting duly held on
_______________, at which a quorum was at all times present and
that such resolution has not been modified or rescinded and is in
full force and effect as of the date hereof.
RESOLVED, that The Bank of New York, as Custodian
pursuant to a Custody Agreement to be entered into
between The Bank of New York and the Fund in
substantially the form of such agreement presented
to this meeting (the "Custody Agreement") is
authorized and instructed on a continuous and
ongoing basis until such time as it receives a
Certificate, as defined in the Custody Agreement,
to the contrary, to accept, utilize and act with
respect to Clearing Member confirmations for
Options and transactions in Options, regardless of
the Series to which the same are specifically
allocated, as such terms are defined in the Custody
Agreement, as provided in the Custody Agreement.
IN WITNESS WHEREOF, I have hereunto set my hand and the seal
of Xxxxxxxxxxx International Small Company Fund, as of the ____ day
of ________________, 1997.
__________________________
Xxxxxx X. Xxxxxxx
Secretary
[SEAL]
EXHIBIT D
[THE FORM OF FOREIGN SUBCUSTODIAN AGREEMENT VARIES DEPENDING ON THE
COUNTRY. PLEASE CONTACT OPPENHEIMERFUNDS, INC FOR A SPECIFIC FORM
OF FOREIGN SUBCUSTODIAN AGREEMENT]
