CUSTODIAN AGREEMENT
THIS AGREEMENT, dated as of June 25, 1999, between the trustees (each a
"Trustee" and collectively, the "Trustees") of the DOW XXXXX ISLAMIC MARKET
INDEX PORTFOLIO, an open-ended New York trust (which may or may not be
registered with the Securities and Exchange Commission in the United States),
(the Portfolio), and XXXXX BROTHERS XXXXXXXX & CO., a limited partnership formed
under the laws of the State of New York (BBH&Co. or the Custodian),
W I T N E S S E T H:
WHEREAS, WAFRA/BBH & CO. - DOW XXXXX ISLAMIC MARKET INDEX FUND (CAYMAN)
(the "Fund") is organized as a limited liability exempted company under the
Companies Law (1998 Revisions) of the Cayman Islands.
WHEREAS, the Trustees of the Portfolio wish to employ BBH&Co. to act as
custodian for the Portfolio and to provide related services, all as provided
herein, and BBH&Co. is willing to accept such employment, subject to the terms
and conditions herein set forth; NOW, THEREFORE, in consideration of the mutual
covenants and agreements herein contained, the Trustees and BBH&Co. hereby
agree, as follows:
1. Appointment of Custodian. The Trustees hereby appoint BBH&Co. as the
Portfolio's custodian, and BBH&Co. hereby accepts such appointment. All
Investments of the Portfolio delivered to the Custodian or its agents or
Subcustodians shall be dealt with as provided in this Agreement. The duties of
the Custodian with respect to the Portfolio's Investments shall be only as set
forth expressly in this Agreement which duties are generally comprised of
safekeeping and various administrative duties that will be performed in
accordance with Instructions and as reasonably required to effect Instructions.
2. Representations, Warranties and Covenants of the Trustees. The Trustees
hereby represent, warrants and covenants each of the following:
2.1 This Agreement has been, and at the time of delivery of each
Instruction such Instruction will have been, duly authorized, executed and
delivered by the Trustee or a duly authorized Investment Manager or Investment
Advisor. This Agreement does not violate any Applicable Law or conflict with or
constitute a default under the Portfolio's prospectus or other organic document,
agreement, judgment, order or decree to which the Portfolio is a party or by
which it or its Investments is bound.
2.2 By providing an Instruction with respect to the first acquisition of an
Investment in a jurisdiction other than the United States of America, the
Trustees shall be deemed to have confirmed to the Custodian that a duly
appointed Investment Manager or Investment Advisor has (a) assessed and accepted
all material Country or Sovereign Risks and accepted responsibility for their
occurrence, (b) made all determinations required to be made by the Portfolio
under applicable laws or regulations, and (iii) appropriately and adequately
disclosed to its beneficiaries, other investors and all persons who have rights
in or to such Investments, all material investment risks, including those
relating to the custody and settlement infrastructure or the servicing of
securities in such jurisdiction.
2.3 The Trustees shall safeguard and shall solely be responsible for the
safekeeping of any testkeys, identification codes, passwords, other security
devices or statements of account with which the Custodian provides it. In
furtherance and not limitation of the foregoing, in the event the Trustees or a
duly appointed Investment Manager or Investment Advisor utilizes any on-line
service offered by the Custodian, the Trustee and the Custodian shall be fully
responsible for the security of each party's connecting terminal, access thereto
and the proper and authorized use thereof and the initiation and application of
continuing effective safeguards in respect thereof. Additionally, if the Trustee
or duly appointed Investment Manager or Investment Advisor uses any on-line or
similar communications service made available by the Custodian, the Trustees
shall be solely responsible for ensuring the security of its access to the
service and for the use of the service, and shall only attempt to access the
service and the Custodian's computer systems as directed by the Custodian. If
the Custodian provides any computer software to the Trustees or a duly appointed
Investment Manager or Investment Advisor relating to the services described in
this Agreement, they will only use the software for the purposes for which the
Custodian provided the software to them, and will abide by the license agreement
accompanying the software and any other security policies which the Custodian
provides to them.
3. Representation and Warranty of BBH&Co. BBH&Co. hereby represents and
warrants that this Agreement has been duly authorized, executed and delivered by
BBH&Co. and does not and will not violate any Applicable Law or conflict with or
constitute a default under BBH&Co.'s limited partnership agreement or any
agreement, instrument, judgment, order or decree to which BBH&Co. is a party or
by which it is bound.
4. Instructions. Unless otherwise explicitly indicated herein, the
Custodian shall perform its duties pursuant to Instructions. As used herein, the
term Instruction shall mean a directive initiated by the Trustees or other
Authorized Persons which may include a Partner, officer or authorized employee
of: (i) Wafra Investment Advisory Group, Inc. (the "Investment Advisor), or (i)
Xxxxx Brothers Xxxxxxxx & Co. (the "Investment Manager"), or Xxxxx Brothers
Xxxxxxxx Trust Company (the "Administrator") which directive shall conform to
the requirements of this Section 4.
4.1 Authorized Persons. For purposes hereof, an Authorized Person shall be
a person or entity authorized to give Instructions for or on behalf of the
Portfolio by written notices to the Custodian or otherwise in accordance with
procedures delivered to and acknowledged by the Custodian, including without
limitation the Investment Advisor, Investment Manager or Administrator. The
Custodian may treat any Authorized Person as having full authority to issue
Instructions hereunder unless the notice of authorization contains explicit
limitations as to said authority. The Custodian shall be entitled to rely upon
the authority of Authorized Persons until it receives appropriate written notice
from the Trustees to the contrary.
4.2 Form of Instruction. Each Instruction shall be transmitted by such
secured or authenticated electro-mechanical means as the Custodian shall make
available from time to time unless the Trustee shall elect to transmit such
Instruction in accordance with Subsections 4.2.1 through 4.2.3 of this Section.
4.2.1 Trustee Designated Secured-Transmission Method. Instructions may be
transmitted through a secured or tested electro-mechanical means identified by
the Trustees or by an Authorized Person entitled to give Instruction and
acknowledged and accepted by the Custodian; it being understood that such
acknowledgment shall authorize the Custodian to receive and process such means
of delivery but shall not represent a judgment by the Custodian as to the
reasonableness or security of the method determined by the Authorized Person.
4.2.2 Written Instructions. Instructions may be transmitted in a writing
that bears the manual signature of Authorized Persons.
4.2.3 Other Forms of Instruction. Instructions may also be transmitted by
another means determined by the Trustee or Authorized Persons and acknowledged
and accepted by the Custodian (subject to the same limits as to acknowledgements
as is contained in Subsection 4.2.1, above) including Instructions given orally
or by SWIFT, telex or telefax (whether tested or untested).
When an Instruction is given by means established under Subsections 4.2.1
through 4.2.3, it shall be the responsibility of the Custodian to use reasonable
care to adhere to any security or other procedures established in writing
between the Custodian and the Authorized Person with respect to such means of
Instruction, but such Authorized Person shall be solely responsible for
determining that the particular means chosen is reasonable under the
circumstances. Oral Instructions shall be binding upon the Custodian only if and
when the Custodian takes action with respect thereto. With respect to telefax
instructions, the parties agree and acknowledge that receipt of legible
instructions cannot be assured, that the Custodian cannot verify that authorized
signatures on telefax instructions are original or properly affixed, and that
the Custodian shall not be liable for losses or expenses incurred through
actions taken in reliance on inaccurately stated, illegible or unauthorized
telefax instructions. The provisions of Section 4A of the Uniform Commercial
Code shall apply to Funds Transfers performed in accordance with Instructions.
In the event that a Funds Transfer Services Agreement is executed between the
Trustees or an Authorized Person and the Custodian, such an agreement shall
comprise a designation of form of a means of delivering Instructions for
purposes of this Section 4.2.
4.3 Completeness and Contents of Instructions. The Authorized Person shall
be responsible for assuring the adequacy and accuracy of Instructions.
Particularly, upon any acquisition or disposition or other dealing in the
Portfolio's Investments and upon any delivery and transfer of any Investment or
moneys, the person initiating such Instruction shall give the Custodian an
Instruction with appropriate detail, including, without limitation:
4.3.1 The transaction date and the date and location of settlement;
4.3.2 The specification of the type of transaction;
4.3.4 A description of the Investments or moneys in question, including, as
appropriate, quantity, price per unit, amount of money to be received or
delivered and currency information. Where an Instruction is communicated by
electronic means, or otherwise where an Instruction contains an identifying
number such as a CUSIP, SEDOL or ISIN number, the Custodian shall be entitled to
rely on such number as controlling notwithstanding any inconsistency contained
in such Instruction, particularly with respect to Investment description;
4.3.5 The name of the broker or similar entity concerned with execution of
the transaction.
If the Custodian shall determine that an Instruction is either unclear or
incomplete, the Custodian may give prompt notice of such determination to the
Authorized Person, and the Authorized Person shall thereupon amend or otherwise
reform such Instruction. In such event, the Custodian shall have no obligation
to take any action in response to the Instruction initially delivered until the
redelivery of an amended or reformed Instruction
4.4 Timeliness of Instructions. In giving an Instruction, each Authorized
Person shall take into consideration delays which may occur due to the
involvement of a Subcustodian or agent, differences in time zones, and other
factors particular to a given market, exchange or issuer. When the Custodian has
established specific timing requirements or deadlines with respect to particular
classes of Instruction, or when an Instruction is received by the Custodian at
such a time that it could not reasonably be expected to have acted on such
instruction due to time zone differences or other factors beyond its reasonable
control, the execution of any Instruction received by the Custodian after such
deadline or at such time (including any modification or revocation of a previous
Instruction) shall be at the risk of the Portfolio.
5. Safekeeping of Portfolio Assets. The Custodian shall hold Investments
delivered to it or Subcustodians for the Portfolio in accordance with the
provisions of this Section. The Custodian shall not be responsible for (a) the
safekeeping of Investments not delivered or that are not caused to be issued to
it or its Subcustodians; or, (b) pre-existing faults or defects in Investments
that are delivered to the Custodian, or its Subcustodians. The Custodian is
hereby authorized to hold with itself or a Subcustodian, and to record in one or
more accounts, all Investments delivered to and accepted by the Custodian, any
Subcustodian or their respective agents pursuant to an Instruction or in
consequence of any corporate action. The Custodian shall hold Investments for
the account of the Portfolio and shall segregate Investments from assets
belonging to the Custodian and shall cause its Subcustodians to segregate
Investments from assets belonging to the Subcustodian in an account held for the
Portfolio or in an account maintained by the Subcustodian generally for
non-proprietary assets of the Custodian.
5.1 Use of Securities Depositories. The Custodian may deposit and
maintain Investments in any Securities Depository, either directly or through
one or more Subcustodians appointed by the Custodian. Investments held in a
Securities Depository shall be held (a) subject to the agreement, rules,
statement of terms and conditions or other document or conditions effective
between the Securities Depository and the Custodian or the Subcustodian, as the
case may be, and (b) in an account for the Portfolio or in bulk segregation in
an account maintained for the non-proprietary assets of the entity holding such
Investments in the Depository. If market practice or the rules and regulations
of the Securities Depository prevent the Custodian, the Subcustodian or (any
agent of either) from holding its client assets in such a separate account, the
Custodian, the Subcustodian or other agent shall as appropriate segregate such
Investments for benefit of the Portfolio or for benefit of clients of the
Custodian generally on its own books.
5.2 Certificated Assets. Investments which are certificated may be held in
registered or bearer form: (a) in the Custodian's vault; (b) in the vault of a
Subcustodian or agent of the Custodian or a Subcustodian; or (c) in an account
maintained by the Custodian, Subcustodian or agent at a Securities Depository;
all in accordance with customary market practice in the jurisdiction in which
any Investments are held.
5.3 Registered Assets. Investments which are registered may be registered
in the name of the Custodian, a Subcustodian, or in the name of the Portfolio or
a nominee for any of the foregoing, and may be held in any manner set forth in
paragraph 5.2 above with or without any identification of fiduciary capacity in
such registration.
5.4 Book Entry Assets. Investments which are represented by book-entry may
be so held in an account maintained by the Book-Entry Agent on behalf of the
Custodian, a Subcustodian or another agent of the Custodian, or a Securities
Depository.
5.5 Replacement of Lost Investments. In the event of a loss of Investments
for which the Custodian is responsible under the terms of this Agreement, the
Custodian shall replace such Investment, or in the event that such replacement
cannot be effected, the Custodian shall pay to the Portfolio the fair market
value of such Investment based on the last available price as of the close of
business in the relevant market on the date that a claim was first made to the
Custodian with respect to such loss, or, if less, such other amount as shall be
agreed by the parties as the date for settlement.
6. Administrative Duties of the Custodian. The Custodian shall perform the
following administrative duties with respect to Investments of the Portfolio.
6.1 Purchase of Investments. Pursuant to Instruction, Investments
purchased for the account of the Portfolio shall be paid for (a) against
delivery thereof to the Custodian or a Subcustodian, as the case may be, either
directly or through a Clearing Corporation or a Securities Depository (in
accordance with the rules of such Securities Depository or such Clearing
Corporation), or (b) otherwise in accordance with an Instruction, Applicable
Law, generally accepted trade practices, or the terms of the instrument
representing such Investment.
6.2 Sale of Investments. Pursuant to Instruction, Investments sold for
the account of the Portfolio shall be delivered (a) against payment therefor in
cash, by check or by bank wire transfer, (b) by credit to the account of the
Custodian or the applicable Subcustodian, as the case may be, with a Clearing
Corporation or a Securities Depository (in accordance with the rules of such
Securities Depository or such Clearing Corporation), or (c) otherwise in
accordance with an Instruction, Applicable Law, generally accepted trade
practices, or the terms of the instrument representing such Investment.
6.3 Delivery in Connection with Borrowings of the Portfolio or other
Collateral and Margin Requirements. Pursuant to Instruction, the Custodian may
deliver Investments or cash of the Portfolio in connection with borrowings and
other collateral and margin requirements.
6.4 Futures and Options. If, pursuant to an Instruction, the Custodian
shall become a party to an agreement with the Portfolio and a futures commission
merchant regarding margin (Tri-Party Agreement), the Custodian shall (a) receive
and retain, to the extent the same are provided to the Custodian, confirmations
or other documents evidencing the purchase or sale exchange-traded futures
contracts and commodity options, (b) when required by such Tri-Party Agreement,
deposit and maintain in an account opened pursuant to such Agreement (Margin
Account), segregated either physically or by book-entry in a Securities
Depository for the benefit of any futures commission merchant, such Investments
as the shall have designated as initial, maintenance or variation "margin"
deposits or other collateral intended to secure the Portfolio's performance of
its obligations under the terms of any exchange-traded futures contracts and
commodity options; and (c) thereafter pay, release or transfer Investments into
or out of the margin account in accordance with the provisions of the such
Agreement. Alternatively, the Custodian may deliver Investments, in accordance
with an Instruction, to a futures commission merchant for purposes of margin
requirements in accordance with Rule 17f-6. The Custodian shall in no event be
responsible for the acts and omissions of any futures commission merchant to
whom Investments are delivered pursuant to this Section; for the sufficiency of
Investments held in any Margin Account; or, for the performance of any terms of
any exchange-traded futures contracts and commodity options.
6.5 Contractual Obligations and Similar Investments. From time to time,
the Portfolio's Investments may include Investments that are not ownership
interests as may be represented by certificate (whether registered or bearer),
by entry in a Securities Depository or by book entry agent, registrar or similar
agent for recording ownership interests in the relevant Investment. If the
Portfolio shall at any time acquire such Investments, including without
limitation deposit obligations, loan participations, repurchase agreements and
derivative arrangements, the Custodian shall (a) receive and retain, to the
extent the same are provided to the Custodian, confirmations or other documents
evidencing the arrangement; and (b) perform on the Portfolio's account in
accordance with the terms of the applicable arrangement, but only to the extent
directed to do so by Instruction. The Custodian shall have no responsibility for
agreements running to the Portfolio as to which it is not a party other than to
retain, to the extent the same are provided to the Custodian, documents or
copies of documents evidencing the arrangement and, in accordance with
Instruction, to include such arrangements in reports made to the Trustees.
6.6 Exchange of Securities. Unless otherwise directed by Instruction, the
Custodian shall: (a) exchange securities held for the account of the Portfolio
for other securities in connection with any reorganization, recapitalization,
conversion, split-up, change of par value of shares or similar event, and (b)
deposit any such securities in accordance with the terms of any reorganization
or protective plan.
6.7 Surrender of Securities. Unless otherwise directed by Instruction, the
Custodian may surrender securities: (a) in temporary form for definitive
securities; (b) for transfer into the name of an entity allowable under Section
5.3; and (c) for a different number of certificates or instruments representing
the same number of shares or the same principal amount of indebtedness.
6.8 Rights, Warrants, Etc. Pursuant to Instruction, the Custodian shall (a)
deliver warrants, puts, calls, rights or similar securities to the issuer or
trustee thereof, or to any agent of such issuer or trustee, for purposes of
exercising such rights or selling such securities, and (b) deposit securities in
response to any invitation for the tender thereof.
6.9 Mandatory Corporate Actions. Unless otherwise directed by Instruction,
the Custodian shall: (a) comply with the terms of all mandatory or compulsory
exchanges, calls, tenders, redemptions or similar rights of securities ownership
affecting securities held on the Portfolio's account and promptly notify the
Trustees of such action, and (b) collect all stock dividends, rights and other
items of like nature with respect to such securities.
6.10 Income Collection. Unless otherwise directed by Instruction, the
Custodian shall collect any amount due and payable to the Portfolio with respect
to Investments and promptly credit the amount collected to a Principal or Agency
Account; provided, however, that the Custodian shall not be responsible for: (a)
the collection of amounts due and payable with respect to Investments that are
in default, or (b) the collection of cash or share entitlements with respect to
Investments that are not registered in the name of the Custodian or its
Subcustodians. The Custodian is hereby authorized to endorse and deliver any
instrument required to be so endorsed and delivered to effect collection of any
amount due and payable to the Portfolio with respect to Investments.
6.11 Ownership Certificates and Disclosure of the Portfolio's Interest. The
Custodian is hereby authorized to execute on behalf of the Portfolio ownership
certificates, affidavits or other disclosure required under Applicable Law or
established market practice in connection with the receipt of income, capital
gains or other payments by the Portfolio with respect to Investments, or in
connection with the sale, purchase or ownership of Investments. 6.12 Proxy
Materials. The Custodian shall deliver, or cause to be delivered, to the
Investment Manager proxy forms, notices of meeting, and any other notices or
announcements materially affecting or relating to Investments received by the
Custodian or any nominee. 6.13. Taxes. The Custodian shall, where applicable,
assist the Portfolio in the reclamation of taxes withheld on dividends and
interest payments received by the Portfolio. In the performance of its duties
with respect to tax withholding and reclamation, the Custodian shall be entitled
to rely on the advice of counsel and upon information and advice regarding the
Portfolio's tax status that is received from or on behalf of the Portfolio
without duty of separate inquiry. 6.14 Other Dealings. The Custodian shall
otherwise act as directed by Instruction, including without limitation effecting
the free payments of moneys or the free delivery of securities, provided that
such Instruction shall indicate the purpose of such payment or delivery and that
the Custodian shall record the party to whom such payment or delivery is made.
The Custodian shall attend to all nondiscretionary details in connection
with the sale or purchase or other administration of Investments, except as
otherwise directed by an Instruction, and may make payments to itself or others
for minor expenses of administering Investments under this Agreement; provided
that the Trustees shall have the right to request an accounting with respect to
such expenses. In fulfilling the duties set forth in Sections 6.6 through 6.10
above, the Custodian shall provide to the Trustees or Investment Manager or
Investment Advisor or Administrator all material information pertaining to a
corporate action which the Custodian actually receives; provided that the
Custodian shall not be responsible for the completeness or accuracy of such
information. Any advance credit of cash or shares expected to be received as a
result of any corporate action shall be subject to actual collection and may,
when the Custodian deems collection unlikely, be reversed by the Custodian.
The Custodian may at any time or times in its discretion appoint (and
may at any time remove) agents (other than Subcustodians) to carry out some or
all of the administrative provisions of this Agreement (Agents), provided,
however, that the appointment of such agent shall not relieve the Custodian of
its administrative obligations under this Agreement.
7. Cash Accounts, Deposits and Money Movements. Subject to the terms and
conditions set forth in this Section 7, the Trustees hereby authorize the
Custodian to open and maintain, with itself or with Subcustodians, cash accounts
in United States Dollars, in such other currencies as are the currencies of the
countries in which the Portfolio maintains Investments or in such other
currencies as the Portfolio shall from time to time request by Instruction.
7.1 Types of Cash Accounts. Cash accounts opened on the books of the
Custodian (Principal Accounts) shall be opened in the name of the Portfolio.
Such accounts collectively shall be a deposit obligation of the Custodian and
shall be subject to the terms of this Section 7 and the general liability
provisions contained in Section 9. Cash accounts opened on the books of a
Subcustodian may be opened in the name of the Portfolio or the Custodian or in
the name of the Custodian for its customers generally (Agency Accounts). Such
deposits shall be obligations of the Subcustodian and shall be treated as an
Investment of the Portfolio. Accordingly, the Custodian shall be responsible for
exercising reasonable care in the administration of such accounts but shall not
be liable for their repayment in the event such Subcustodian, by reason of its
bankruptcy, insolvency or otherwise, fails to make repayment.
7.2 Payments and Credits with Respect to the Cash Accounts. The
Custodian shall make payments from or deposits to any of said accounts in the
course of carrying out its administrative duties, including but not limited to
income collection with respect to the Portfolio's Investments, and otherwise in
accordance with Instructions. The Custodian and its Subcustodians shall be
required to credit amounts to the cash accounts only when moneys are actually
received in cleared funds in accordance with banking practice in the country and
currency of deposit. Any credit made to any Principal or Agency Account before
actual receipt of cleared funds shall be provisional and may be reversed by the
Custodian in the event such payment is not actually collected. Unless otherwise
specifically agreed in writing by the Custodian or any Subcustodian, all
deposits shall be payable only at the branch of the Custodian or Subcustodian
where the deposit is made or carried.
7.3 Currency and Related Risks. The Fund bears risks of holding or
transacting in any currency. The Custodian shall not be liable for any loss or
damage arising from the applicability of any law or regulation now or hereafter
in effect, or from the occurrence of any event, which may delay or affect the
transferability, convertibility or availability of any currency in the country
(a) in which such Principal or Agency Accounts are maintained or (b) in which
such currency is issued, and in no event shall the Custodian be obligated to
make payment of a deposit denominated in a currency during the period during
which its transferability, convertibility or availability has been affected by
any such law, regulation or event. Without limiting the generality of the
foregoing, neither the Custodian nor any Subcustodian shall be required to repay
any deposit made at a foreign branch of either the Custodian or Subcustodian if
such branch cannot repay the deposit due to a cause for which the Custodian
would not be responsible in accordance with the terms of Section 9 of this
Agreement unless the Custodian or such Subcustodian expressly agrees in writing
to repay the deposit under such circumstances. All currency transactions in any
account opened pursuant to this Agreement are subject to exchange control
regulations of the United States and of the country where such currency is the
lawful currency or where the account is maintained. Any taxes, costs, charges or
fees imposed on the convertibility of a currency held by the Portfolio shall be
for the account of the Portfolio.
7.4 Foreign Exchange Transactions. The Custodian shall, subject to the
terms of this Section, settle foreign exchange transactions (including
contracts, futures, options and options on futures) on behalf and for the
account of the Portfolio with such currency brokers or banking institutions,
including Subcustodians, as may be directed pursuant to Instructions. The
Custodian may act as principal in any foreign exchange transaction with the
Portfolio in accordance with Section 7.4.2 of this Agreement. The obligations of
the Custodian in respect of all foreign exchange transactions (whether or not
the Custodian shall act as principal in such transaction) shall be contingent on
the free, unencumbered transferability of the currency transacted on the actual
settlement date of the transaction.
7.4.1 Third Party Foreign Exchange Transactions. The Custodian shall
process foreign exchange transactions (including without limitation contracts,
futures, options, and options on futures), where any third party acts as
principal counterparty to the Portfolio on the same basis it performs duties as
agent for the Portfolio with respect to any other of the Portfolio's
Investments. Accordingly the Custodian shall only be responsible for delivering
or receiving currency on behalf of the Portfolio in respect of such contracts
pursuant to Instructions. The Custodian shall not be responsible for the failure
of any counterparty (including any Subcustodian) in such agency transaction to
perform its obligations thereunder. The Custodian (a) shall transmit cash and
Instructions to and from the currency broker or banking institution with which a
foreign exchange contract or option has been executed pursuant hereto, (b) may
make free outgoing payments of cash in the form of Dollars or foreign currency
without receiving confirmation of a foreign exchange contract or option or
confirmation that the countervalue currency completing the foreign exchange
contract has been delivered or received or that the option has been delivered or
received, and (c) shall hold all confirmations, certificates and other documents
and agreements received by the Custodian and evidencing or relating to such
foreign exchange transactions in safekeeping. The Portfolio accepts full
responsibility for its use of third-party foreign exchange dealers and for
execution of said foreign exchange contracts and options and understands that
the Portfolio shall be responsible for any and all costs and interest charges
which may be incurred by the Portfolio or the Custodian as a result of the
failure or delay of third parties to deliver foreign exchange.
7.5 Delays. If no event of Force Majeure shall have occurred and be
continuing and in the event that a delay shall have been caused by the fraud,
willful misconduct or gross negligence of the Custodian in carrying out an
Instruction to credit or transfer cash, the Custodian shall be liable to the
Fund: (a) with respect to Principal Accounts, for interest to be calculated at
the rate customarily paid on such deposit and currency by the Custodian on
overnight deposits at the time the delay occurs for the period from the day when
the transfer should have been effected until the day it is in fact effected;
and, (b) with respect to Agency Accounts, for interest to be calculated at the
rate customarily paid on such deposit and currency by the Subcustodian on
overnight deposits at the time the delay occurs for the period from the day when
the transfer should have been effected until the day it is in fact effected. The
Custodian shall not be liable for delays in carrying out such Instructions to
transfer cash which are not due to the Custodian's own fraud, willful misconduct
or gross negligence.
7.6 Advances. If, for any reason in the conduct of its safekeeping duties
pursuant to Section 5 hereof or its administration of the Portfolio's assets
pursuant to Section 6 hereof, the Custodian or any Subcustodian advances monies
to facilitate settlement or otherwise for benefit of the Portfolio (whether or
not any Principal or Agency Account shall be overdrawn either during, or at the
end of, any Business Day), the Trustee hereby do:
7.6.1 acknowledge that the Portfolio shall have no right or title to
any Investments purchased with such Advance save a right to receive such
Investments upon: (a) the debit of the Principal or Agency Account; or, (b) if
such debit would produce an overdraft in such account, other reimbursement of
the associated Advance;
7.6.2 grant to the Custodian a security interest in all Investments; and,
7.6.3 agree that the Custodian may secure the resulting Advance by
perfecting a security interest in all Investments under Applicable Law.
Neither the Custodian nor any Subcustodian shall be obligated to advance
monies to the Portfolio, and in the event that such Advance occurs, any
transaction giving rise to an Advance shall be for the account and risk of the
Portfolio and shall not be deemed to be a transaction undertaken by the
Custodian for its own account and risk. If such Advance shall have been made by
a Subcustodian or any other person, the Custodian may assign the security
interest and any other rights granted to the Custodian hereunder to such
Subcustodian or other person. If the Portfolio shall fail to repay when due the
principal balance of an Advance and accrued and unpaid interest thereon, the
Custodian or its assignee, as the case may be, shall be entitled to utilize the
available cash balance in any Agency or Principal Account and to dispose of any
Investments to the extent necessary to recover payment of all principal of, and
interest on, such Advance in full. The Custodian may assign any rights it has
hereunder to a Subcustodian or third party. Any security interest in Investments
taken hereunder shall be treated as financial assets credited to securities
accounts under Articles 8 and 9 of the Uniform Commercial Code (1997).
Accordingly, the Custodian shall have the rights and benefits of a secured
creditor that is a securities intermediary under such Articles 8 and 9. 7.7
Integrated Account. For purposes hereof, deposits maintained in all Principal
Accounts (whether or not denominated in Dollars) shall collectively constitute a
single and indivisible current account with respect to the Portfolio's
obligations to the Custodian, or its assignee, and balances in such Principal
Accounts shall be available for satisfaction of the Portfolio's obligations
under this Section 7. The Custodian shall further have a right of offset against
the balances in any Agency Account maintained hereunder to the extent that the
aggregate of all Principal Accounts is overdrawn.
8. Subcustodians and Securities Depositories. Subject to the provisions
hereinafter set forth in this Section 8, the Trustee hereby authorizes the
Custodian to utilize Securities Depositories to act on behalf of the Portfolio
and to appoint from time to time and to utilize Subcustodians. With respect to
securities and funds held by a Subcustodian, either directly or indirectly
(including by a Securities Depository or Clearing Corporation), notwithstanding
any provisions of this Agreement to the contrary, payment for securities
purchased and delivery of securities sold may be made prior to receipt of
securities or payment, respectively, and securities or payment may be received
in a form, in accordance with (a) governmental regulations, (b) rules of
Securities Depositories and clearing agencies, (c) generally accepted trade
practice in the applicable local market, (d) the terms and characteristics of
the particular Investment, or (e) the terms of Instructions. 8.1 Domestic
Subcustodians and Securities Depositories. The Custodian may deposit and/or
maintain, either directly or through one or more agents appointed by the
Custodian, Investments of the Portfolio in any Securities Depository in the
United States, including The Depository Trust Company, provided such Depository
meets applicable requirements of the Federal Reserve Bank or of the Securities
and Exchange Commission. The Custodian may, at any time and from time to time,
appoint any bank as defined in Section 2(a)(5) of the 1940 Act meeting the
requirements of a custodian under Section 17(f) of the 1940 Act and the rules
and regulations thereunder, to act on behalf of the Portfolio as a Subcustodian
for purposes of holding Investments of the Portfolio in the United States. 8.2
Foreign Subcustodians and Securities Depositories. The Custodian may deposit
and/or maintain non-U.S. Investments of the Portfolio in any non-U.S. Securities
Depository provided such Securities Depository meets the requirements of an
"eligible foreign custodian" under Rule 17f-5 promulgated under the 1940 Act, or
any successor rule or regulation ("Rule 17f-5") or which by order of the
Securities and Exchange Commission is exempted therefrom. Additionally, the
Custodian may, at any time and from time to time, appoint (a) any bank, trust
company or other entity meeting the requirements of an Eligible Foreign
Custodian under Rule 17f-5 or which by order of the Securities and Exchange
Commission is exempted therefrom, or (b) any bank as defined in Section 2(a)(5)
of the 1940 Act meeting the requirements of a custodian under Section 17(f) of
the 1940 Act and the rules and regulations thereunder, to act on behalf of the
Fund as a Subcustodian for purposes of holding Investments of the Portfolio
outside the United States. Such appointment of foreign Subcustodians shall be
subject to approval of the Trustee in accordance with Subsections 8.2.1 and
8.2.2.
8.2.1 Board Approval of Foreign Subcustodians. Unless and except to the
extent that review of certain matters concerning the appointment of
Subcustodians shall have been delegated to the Custodian pursuant to Subsection
8.2.2, the Custodian shall, prior to the appointment of any Subcustodian for
purposes of holding Investments of the Portfolio outside the United States,
obtain written confirmation of the approval of the Trustees with respect to (a)
the identity of a Subcustodian, (b) the country or countries in which, and the
Securities Depositories, if any, through which, any proposed Subcustodian is
authorized to hold Investments of the Portfolio, and (c) the Subcustodian
agreement which shall govern such appointment. Each such duly approved country,
Subcustodian and Securities Depository shall be listed on Appendix A attached
hereto as the same may from time to time be amended.
8.2.2 Delegation of Board Review of Subcustodians. From time to time, the
Custodian may offer to perform, and the Trustee may accept to perform, that the
Custodian perform certain reviews of Subcustodians and of Subcustodian Contracts
as delegate of the Fund's Trustees. In such event, the Custodian's duties and
obligations with respect to this delegated review will be performed in
accordance with the terms of a separate Foreign Custody Manager Delegation
Agreement between the Trustees and the Custodian.
8.3 Responsibility for Subcustodians. With respect to securities and funds
held by a Subcustodian, either directly or indirectly (including by a Foreign
Depository, Securities System or foreign clearing agency), including demand
deposit and interest bearing deposits, currencies or other deposits and foreign
exchange contracts as referred to herein, the Custodian shall be liable to the
Trustee if and only to the extent that such Subcustodian is liable to the
Custodian and the Custodian recovers under the applicable subcustodian
agreement.
8.4 New Countries. The Investment Manager shall be responsible for
informing the Custodian sufficiently in advance of a proposed investment which
is to be held in a country in which no Subcustodian is authorized to act in
order that the Custodian shall, if it deems appropriate to do so, have
sufficient time to establish a subcustodial arrangement in accordance herewith.
In the event, however, the Custodian is unable to establish such arrangements
prior to the time such investment is to be acquired, the Custodian is authorized
to designate at its discretion a local safekeeping agent, and the use of such
local safekeeping agent shall be at the sole risk of the Portfolio, and
accordingly the Custodian shall be responsible for the actions of such agent if
and only to the extent the Custodian shall have recovered from such agent for
any damages caused the Portfolio by such agent.
9. Responsibility of the Custodian. In performing its duties and
obligations hereunder, the Custodian shall use reasonable care under the facts
and circumstances prevailing in the market where performance is effected.
Subject to the specific provisions of this Section, the Custodian shall be
liable for any direct damage incurred by the Portfolio in consequence of the
Custodian's fraud, willful misconduct or gross negligence . In no event shall
the Custodian be liable hereunder for any special, indirect, punitive or
consequential damages arising out of, pursuant to or in connection with this
Agreement even if the Custodian has been advised of the possibility of such
damages. It is agreed that the Custodian shall have no duty to assess the risks
inherent in the Portfolio's Investments or to provide investment advice with
respect to such Investments and that the Portfolio as principal shall bear any
risks attendant to particular Investments such as failure of counterparty or
issuer. 9.1 Limitations of Performance. The Custodian shall not be responsible
under this Agreement for any failure to perform its duties, and shall not liable
hereunder for any loss or damage in association with such failure to perform,
for or in consequence of the following causes:
9.1.1 Force Majeure. Force Majeure shall mean any circumstance or event
which is beyond the reasonable control of the Custodian, a Subcustodian or any
agent of the Custodian or a Subcustodian and which adversely affects the
performance by the Custodian of its obligations hereunder, by the Subcustodian
of its obligations under its Subcustody Agreement or by any other agent of the
Custodian or the Subcustodian, including any event caused by, arising out of or
involving (a) an act of God, (b) accident, fire, water damage or explosion, (c)
any computer, system or other equipment failure or malfunction caused by any
computer virus or the malfunction or failure of any communications medium, (d)
any interruption of the power supply or other utility service, (e) any strike or
other work stoppage, whether partial or total, (f) any delay or disruption
resulting from or reflecting the occurrence of any Sovereign Risk, (g) any
disruption of, or suspension of trading in, the securities, commodities or
foreign exchange markets, whether or not resulting from or reflecting the
occurrence of any Sovereign Risk, (h) any encumbrance on the transferability of
a currency or a currency position on the actual settlement date of a foreign
exchange transaction, whether or not resulting from or reflecting the occurrence
of any Sovereign Risk, or (i) any other cause similarly beyond the reasonable
control of the Custodian.
9.1.2 Country Risk. Country Risk shall mean, with respect to the
acquisition, ownership, settlement or custody of Investments in a jurisdiction,
all risks relating to, or arising in consequence of, systemic and markets
factors affecting the acquisition, payment for or ownership of Investments
including (a) the prevalence of crime and corruption, (b) the inaccuracy or
unreliability of business and financial information, (c) the instability or
volatility of banking and financial systems, or the absence or inadequacy of an
infrastructure to support such systems, (d) custody and settlement
infrastructure of the market in which such Investments are transacted and held,
(e) the acts, omissions and operation of any Securities Depository, (f) the risk
of the bankruptcy or insolvency of banking agents, counterparties to cash and
securities transactions, registrars or transfer agents, and (g) the existence of
market conditions which prevent the orderly execution or settlement of
transactions or which affect the value of assets.
9.1.3 Sovereign Risk. Sovereign Risk shall mean, in respect of any
jurisdiction, including the United States of America, where Investments is
acquired or held hereunder or under a Subcustody Agreement, (a) any act of war,
terrorism, riot, insurrection or civil commotion, (b) the imposition of any
investment, repatriation or exchange control restrictions by any Governmental
Authority, (c) the confiscation, expropriation or nationalization of any
Investments by any Governmental Authority, whether de facto or de jure, (iv) any
devaluation or revaluation of the currency, (d) the imposition of taxes, levies
or other charges affecting Investments, (vi) any change in the Applicable Law,
or (e) any other economic or political risk incurred or experienced.
9.2. Limitations on Liability. The Custodian shall not be liable for
any loss, claim, damage or other liability arising from the following causes:
9.2.1 Failure of Third Parties. The failure of any third party including:
(a) any issuer of Investments or book-entry or other agent of and issuer; (b)
any counterparty with respect to any Investment, including any issuer of
exchange-traded or other futures, option, derivative or commodities contract;
(c) failure of an Investment Advisor or Investment Manager, Foreign Custody
Manager or other agent of the Portfolio; or (d) failure of other third parties
similarly beyond the control or choice of the Custodian.
9.2.2 Information Sources. The Custodian may rely upon information received
from issuers of Investments or agents of such issuers, information received from
Subcustodians and from other commercially reasonable sources such as commercial
data bases and the like, but shall not be responsible for specific inaccuracies
in such information, provided that the Custodian has relied upon such
information in good faith, or for the failure of any commercially reasonable
information provider.
9.2.3 Reliance on Instruction. Action by the Custodian or the Subcustodian
in accordance with an Instruction, even when such action conflicts with, or is
contrary to any provision of, the Portfolio's declaration of trust, certificate
of incorporation or by-laws, Applicable Law, or actions by the trustees,
directors or shareholders of the Portfolio.
9.2.4 Restricted Securities. The limitations inherent in the rights,
transferability or similar investment characteristics of a given Investment of
the Portfolio.
10. Indemnification. The Trustees, (from the assets of the Portfolio only)
hereby indemnifies the Custodian and each Subcustodian, and their respective
agents, nominees and the partners, employees, officers and directors, and agrees
to hold each of them harmless from and against all claims and liabilities,
including counsel fees and taxes, incurred or assessed against any of them in
connection with the performance of this Agreement and any Instruction not
resulting from the fraud, willful misconduct or gross negligence of the
Custodian. If a Subcustodian or any other person indemnified under the preceding
sentence, gives written notice of claim to the Custodian, the Custodian shall
promptly give written notice to the Portfolio. Not more than thirty days
following the date of such notice, unless the Custodian shall be liable under
Section 8 hereof in respect of such claim, the Portfolio will pay the amount of
such claim or reimburse the Custodian for any payment made by the Custodian in
respect thereof.
11. Reports and Records. The Custodian shall:
11.1 create and maintain records relating to the performance of its
obligations under this Agreement;
11.2 make available to the Trustees, its auditors, agents and employees,
during regular business hours of the Custodian, upon reasonable request and
during normal business hours of the Custodian, all records maintained by the
Custodian pursuant to paragraph (a) above, subject, however, to all reasonable
security requirements of the Custodian then applicable to the records of its
custody customers generally; and
11.3 make available to the Portfolio all Electronic Reports; it being
understood that the Custodian shall not be liable hereunder for the inaccuracy
or incompleteness thereof or for errors in any information included therein.
The Trustee shall examine all records, howsoever produced or transmitted,
promptly upon receipt thereof and notify the Custodian promptly of any
discrepancy or error therein. Unless the Trustees deliver written notice of any
such discrepancy or error within a reasonable time after its receipt thereof,
such records shall be deemed to be true and accurate. It is understood that the
Custodian now obtains and will in the future obtain information on the value of
assets from outside sources which may be utilized in certain reports made
available to the Portfolio. The Custodian deems such sources to be reliable but
it is acknowledged and agreed that the Custodian does not verify nor represent
nor warrant as to the accuracy or completeness of such information and
accordingly shall be without liability in selecting and using such sources and
furnishing such information.
12. Miscellaneous.
12.1 Proxies, etc. The Trustee or Authorized Person will promptly execute
and deliver, upon request, such proxies, powers of attorney or other instruments
as may be necessary or desirable for the Custodian to provide, or to cause any
Subcustodian to provide, custody services.
12.2 Entire Agreement. Except as specifically provided herein, this
Agreement constitutes the entire agreement between the Trustee and the Custodian
with respect to the subject matter hereof. Accordingly, this Agreement
supersedes any custody agreement or other oral or written agreements heretofore
in effect between the Trustee and the Custodian with respect to the custody of
the Portfolio's Investments.
12.3 Waiver and Amendment. No provision of this Agreement may be waived,
amended or modified, and no addendum to this Agreement shall be or become
effective, or be waived, amended or modified, except by an instrument in writing
executed by the party against which enforcement of such waiver, amendment or
modification is sought; provided, however, that an Instruction shall, whether or
not such Instruction shall constitute a waiver, amendment or modification for
purposes hereof, shall be deemed to have been accepted by the Custodian when it
commences actions pursuant thereto or in accordance therewith.
12.4 GOVERNING LAW AND JURISDICTION. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH, AND BE GOVERNED BY THE LAWS OF, THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO THE CONFLICTS OF LAW OF SUCH STATE. THE PARTIES HERETO
IRREVOCABLY CONSENT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF
NEW YORK AND THE FEDERAL COURTS LOCATED IN NEW YORK CITY IN THE BOROUGH OF
MANHATTAN.
12.5 Notices. Notices and other writings contemplated by this Agreement,
other than Instructions, shall be delivered (a) by hand, (b) by first class
registered or certified mail, postage prepaid, return receipt requested, (c) by
a nationally recognized overnight courier or (d) by facsimile transmission,
provided that any notice or other writing sent by facsimile transmission shall
also be mailed, postage prepaid, to the party to whom such notice is addressed.
All such notices shall be addressed, as follows:
If to a Trustee:
Dow Xxxxx Islamic Market Index Portfolio
c/o Brown Brothers Xxxxxxxx Trust Company
00 Xxxx Xxxxxx
Xxx Xxxx, XX
Attn: Xxxxxx X. Xxxxx Xx.
If to the Custodian:
Xxxxx Brothers Xxxxxxxx & Co.
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Manager, Securities Department
Telephone: (000) 000-0000
Facsimile: (000) 000-0000,
or such other address as the Trustees or the Custodian may have designated
in writing to the other.
12.6 Headings. Paragraph headings included herein are for convenience of
reference only and shall not modify, define, expand or limit any of the terms or
provisions hereof.
12.7 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original. This Agreement shall
become effective when one or more counterparts have been signed and delivered by
the Trustee and the Custodian.
12.8 Confidentiality. The parties hereto agree that each shall treat
confidentially the terms and conditions of this Agreement and all information
provided by each party to the other regarding its business and operations. All
confidential information provided by a party hereto shall be used by any other
party hereto solely for the purpose of rendering or obtaining services pursuant
to this Agreement and, except as may be required in carrying out this Agreement,
shall not be disclosed to any third party without the prior consent of such
providing party. The foregoing shall not be applicable to any information that
is publicly available when provided or thereafter becomes publicly available
other than through a breach of this Agreement, or that is required to be
disclosed by or to any bank examiner of the Custodian or any Subcustodian, any
Regulatory Authority, any auditor of the parties hereto, or by judicial or
administrative process or otherwise by Applicable Law. 12.9 Counsel. In
fulfilling its duties hereunder, the Custodian shall be entitled to receive and
act upon the advice of (i) counsel regularly retained by the Custodian in
respect of such matters, (ii) counsel for the Portfolio or (iii) such counsel as
the Portfolio and the Custodian may agree upon, with respect to all matters, and
the Custodian shall be without liability for any action reasonably taken or
omitted pursuant to such advice.
13. Definitions. The following defined terms will have the respective
meanings set forth below.
13.1 Advance shall mean any extension of credit by or through the Custodian
or by or through any Subcustodian and shall include amounts paid to third
parties for account of the Portfolio or in discharge of any expense, tax or
other item payable by the Portfolio.
13.2 Agency Account shall mean any deposit account opened on the books of a
Subcustodian or other banking institution in accordance with Section 7.1.
13.3 Agent shall have the meaning set forth in the last system of Section
6.
13.4 Applicable Law shall mean with respect to each jurisdiction, all (a)
laws, statutes, treaties, regulations, guidelines (or their equivalents); (b)
orders, interpretations licenses and permits; and (c) judgments, decrees,
injunctions writs, orders and similar actions by a court of competent
jurisdiction; compliance with which is required or customarily observed in such
jurisdiction.
13.5 Authorized Person shall mean any person or entity authorized to give
Instructions on behalf of the Fund in accordance with Section 4.1.
13.6 Book-entry Agent shall mean an entity acting as agent for the issuer
of Investments for purposes of recording ownership or similar entitlement to
Investments, including without limitation a transfer agent or registrar.
13.7 Clearing Corporation shall mean any entity or system established for
purposes of providing securities settlement and movement and associated
functions for a given market.
13.8 Delegation Agreement shall mean any separate agreement entered into
between the Custodian and the Fund or its authorized representative with respect
to certain matters concerning the appointment and administration of
Subcustodians delegated to the Custodian pursuant to Rule 17f-5.
13.9 Foreign Custody Manager shall mean the Portfolio's foreign custody
manager appointed pursuant to Rule 00x-0 xx xxx 0000 Xxx (xx any).
13.10 Funds Transfer Services Agreement shall mean any separate agreement
entered into between the Custodian and the Trustee or its authorized
representative with respect to certain matters concerning the processing of
payment orders from Principal Accounts of the Portfolio.
13.11 Instruction(s) shall have the meaning assigned in Section 4.
13.12 Investment Advisor and Investment Manager shall mean any person or
entity who is an Authorized Person to give Instructions with respect to the
investment and reinvestment of the Portfolio's Investments.
13.13 Investments shall mean any investment asset of the Portfolio,
including without limitation securities, bonds, notes, and debentures as well as
receivables, derivatives, contractual rights or entitlements and other
intangible assets.
13.14 Margin Account shall have the meaning set forth in Section 6.4
hereof.
13.15 Principal Account shall mean deposit accounts of the Portfolio
carried on the books of BBH&Co. as principal in accordance with Section 7.
13.16 Safekeeping Account shall mean an account established on the books of
the Custodian or any Subcustodian for purposes of segregating the interests of
the Portfolio (or clients of the Custodian or Subcustodian) from the assets of
the Custodian or any Subcustodian.
13.17 Securities Depository shall mean a central or book entry system or
agency established under Applicable Law for purposes of recording the ownership
and/or entitlement to investment securities for a given market.
13.18 Subcustodian shall mean each foreign bank appointed by the Custodian
pursuant to Section 8, but shall not include Securities Depositories.
13.19 Tri-Party Agreement shall have the meaning set forth in Section 6.4
hereof.
13.20 1940 Act shall mean the Investment Company Act of 1940.
14. Compensation. The Trustees agree to pay to the Custodian (a) a fee in
an amount set forth in the fee letter between the Trustee and the Custodian in
effect on the date hereof or as amended from time to time, and (b) all
out-of-pocket expenses incurred by the Custodian, including the fees and
expenses of all Subcustodians, and payable from time to time. Amounts payable by
the Trustees under and pursuant to this Section 14 shall be payable by wire
transfer to the Custodian at BBH&Co. in New York, New York.
15. Termination. This Agreement may be terminated by either party in
accordance with the provisions of this Section. The provisions of this Agreement
and any other rights or obligations incurred or accrued by any party hereto
prior to termination of this Agreement shall survive any termination of this
Agreement.
15.1 Notice and Effect. This Agreement may be terminated by either party by
written notice effective no sooner than seventy-five days following the date
that notice to such effect shall be delivered to other party at its address set
forth in paragraph 12.5 hereof.
15.2 Successor Custodian. In the event of the appointment of a successor
custodian, it is agreed that the Investments of the fund held by the Custodian
or any Subcustodian shall be delivered to the successor custodian in accordance
with reasonable Instructions. The Custodian agrees to cooperate with the Trustee
in the execution of documents and performance of other actions necessary or
desirable in order to facilitate the succession of the new custodian. If no
successor custodian shall be appointed, the Custodian shall in like manner
transfer the Portfolio's Investments in accordance with Instructions.
15.3 Delayed Succession. If no Instruction has been given as of the
effective date of termination, Custodian may at any time on or after such
termination date and upon ten days written notice to the Trustee either (a)
deliver the Investments of the Portfolio held hereunder to the Trustee at the
address designated for receipt of notices hereunder; or (b) deliver any
investments held hereunder to a bank or trust company having a capitalization of
$2M USD equivalent and operating under the Applicable law of the jurisdiction
where such Investments are located, such delivery to be at the risk of the
Portfolio. In the event that Investments or moneys of the Portfolio remain in
the custody of the Custodian or its Subcustodians after the date of termination
owing to the failure of the Trustees to issue Instructions with respect to their
disposition or owing to the fact that such disposition could not be accomplished
in accordance with such Instructions despite diligent efforts of the Custodian,
the Custodian shall be entitled to compensation for its services with respect to
such Investments and moneys during such period as the Custodian or its
Subcustodians retain possession of such items and the provisions of this
Agreement shall remain in full force and effect until disposition in accordance
with this Section is accomplished.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
duly executed as of the date first above written.
DOW XXXXX ISLAMIC MARKET INDEX PORTFOLIO
By: \S\ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx, Secretary
By: XXXXX BROTHERS XXXXXXXX & CO.
By: \S\ Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxxxx, Manager
