XXXXXXXXXXX XXXXXX FUND
CUSTODY AGREEMENT
Agreement made as of this _____ day of __________, 1997,
between XXXXXXXXXXX MIDCAP FUND, a business trust organized and
existing under the laws of the Commonwealth of Massachusetts, hav-
ing 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 Ap-
pendices 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 Certi-
ficate 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 "Offi-
cer 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/Trea-
sury book-entry system for United States and federal agency secu-
rities, 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 Fu-
tures Contract Options entitling the holder, upon timely exercise
and payment of the exercise price, as specified therein, to pur-
chase 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 Agree-
ment to be given to the Custodian which is actually received (irre-
spective 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 Cus-
todian'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 Op-
tion 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 Securi-
ties (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 Ex-
change 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 resolu-
tion of the Fund's Board of Trustees specifically approving depo-
sits therein by the Custodian, including, without limitation, a
Foreign Depository.
10. "Financial Futures Contract" shall mean the firm commit-
ment to buy or sell financial instruments on a U.S. commodities ex-
change 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 Cus-
todian to perform or coordinate the receipt, custody and delivery
of Foreign Property of the Fund outside the United States in a man-
ner 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 Subcusto-
dians.
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 bro-
kers 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 Con-
tract and/or Index Futures Contracts.
16. "Futures Contract Option" shall mean an Option with re-
spect to a Futures Contract.
17. "Investment Company Act of 1940" shall mean the Invest-
ment 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 differ-
ence between the value of a particular index at the close of the
last business day of the contract and the price at which the fu-
tures contract is originally struck.
19. "Index Option" shall mean an exchange traded Option en-
titling 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 Clear-
ing Member, or in the name of the Fund for the benefit of a broker,
dealer, futures commission merchant, or Clearing Member, or other-
wise, in accordance with an agreement between the Fund, the Custo-
dian and a broker, dealer, futures commission merchant or a Clear-
ing 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 Deposi-
tory shall be deemed to have been deposited in, or withdrawn from,
a Margin Account upon the Custodian's effecting an appropriate en-
try 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, includ-
ing, without limitation, certain Reverse Repurchase Agreements,
debt obligations issued or guaranteed as to interest and/or princi-
pal by the government of the United States or agencies or instru-
mentalities thereof, any tax, bond or revenue anticipation note is-
sued by any state or municipal government or public authority, com-
mercial paper, certificates of deposit and bankers' acceptances,
repurchase agreements with respect to Securities and bank time de-
posits.
22. "Nominee" shall mean, in addition to the name of the reg-
istered 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 Subcusto-
dian, if any, by which it was appointed; or (ii) the nominee of a
Foreign Depository which is used for the securities and other as-
sets 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 Ex-
change 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 Secre-
tary, 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, no-
xxxx 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 hold-
ing 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 actu-
ally received (irrespective of constructive receipt) by the Custo-
dian 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 under-
lying instruments, currency, or Securities, to sell such instru-
ments, currency, or Securities to the writer thereof for the exer-
cise price.
28. "Repurchase Agreement" shall mean an agreement pursuant
to which the Fund buys Securities and agrees to resell such Secu-
rities 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 repur-
chase such Securities at a described or specified date and price.
30. "Rule 17f-5" shall mean Rule 17f-5 (Reg. Section 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 limita-
tion, Money Market Securities, Call Options, Put Options, Index Op-
tions, Index Futures Contracts, Index Futures Contract Options,
Financial Futures Contracts, Financial Futures Contract Options,
Reverse Repurchase Agreements, over the counter Options on Securi-
ties, common stocks and other securities having characteristics
similar to common stocks, preferred stocks, convertible fixed-
income securities, 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 main-
tained and specifically allocated to a Series under the terms of
this Agreement as a segregated account, by recordation or other-
wise, 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 effec-
tive 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 transmis-
sion link between the Fund and the Custodian requiring in connec-
tion with each use of the Terminal Link the use of an authorization
code provided by the Custodian and at least two access codes estab-
lished 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 be-
lieved 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 custo-
dian 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 Ar-
ticle 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 seg-
regate, keep and maintain the Securities of the Series separate and
apart from each other Series and from other assets held by the Cus-
todian. 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 negli-
gent 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 there-
to; 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 Cus-
todian a certified resolution of the Board of Trustees of the Fund,
substantially in the form of Exhibit A hereto, approving, authoriz-
ing 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, in-
cluding, without limitation, in connection with settlements of pur-
chases and sales of Securities, loans of Securities and deliveries
and returns of Securities collateral. Prior to a deposit of Secu-
rities 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 specifi-
cally 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 re-
turns 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 custo-
mers, including, but not limited to, accounts in which the Custo-
dian acts in a fiduciary or representative capacity and will be
specifically allocated on the Custodian's books to the separate ac-
count for the applicable Series. Prior to the Custodian's accept-
ing, utilizing and acting with respect to Clearing Member confir-
mations 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 in-
structing 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 as-
sign, 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 ac-
counts, in the name of each Series, and shall credit to the sepa-
rate account for each Series all moneys received by it for the ac-
count 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 Secre-
tary 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 Secu-
rities 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 Arti-
cle and in Article VIII, all Securities held by the Custodian here-
under, 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 Sy-
stem 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 reg-
istered nominee or in the name of the Book-Entry System or a Depo-
sitory any Securities which it may hold hereunder and which may
from time to time be registered in the name of the Fund. The Cus-
todian shall hold all such Securities specifically allocated to a
Series which are not held in the Book-Entry System or in a Deposi-
tory 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 Custo-
dian 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 dis-
tributions due or payable;
(b) Promptly give notice to the Fund and promptly
present for payment and collect the amount of money or other con-
sideration 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 publica-
tions 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 Ser-
ies hereunder; and
(g) Promptly deliver to the Fund all notices, prox-
ies, proxy soliciting materials, consents and other written infor-
mation (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 prox-
ies 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 Cus-
todian, 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, authoriza-
tions, 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 liquida-
tion, reorganization, refinancing, merger, consolidation or recapi-
talization of any corporation, or the exercise of any right, war-
rant or conversion privilege and receive and hold hereunder speci-
fically allocated to such Series any cash or other Securities re-
ceived in exchange;
(c) Promptly deliver any Securities held hereunder
for the Series specified in such Certificate to any protective com-
mittee, reorganization committee or other person in connection with
the reorganization, refinancing, merger, consolidation, recapitali-
zation or sale of assets of any corporation, and receive and hold
hereunder specifically allocated to such Series in exchange there-
for such certificates of deposit, interim receipts or other instru-
ments 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 in-
strument or certificate representing any Futures Contract, any Op-
tion, or any Futures Contract Option until after it shall have de-
termined, or shall have received a Certificate from the Fund stat-
ing, 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 in-
strument 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 Op-
tions 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 com-
mission 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 Fu-
tures 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 other-
wise 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 re-
lates, 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 certi-
ficate, and deliver any Futures Contract, Option or Futures Con-
tract Option for which such instruments or such certificates are
available only against receipt by the Custodian of payment there-
for. 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 Con-
tract, 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 Instruc-
tions.
2. Promptly after each execution of a sale of Securities by
the Fund, other than a sale of any Option, Futures Contract, Fu-
tures Contract Option, Repurchase Agreement, Reverse Repurchase
Agreement or Short Sale, the Fund shall deliver such to the Custo-
dian (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 Instruc-
tions 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 Secur-
ity; (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 deliv-
ered. 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 speci-
fied 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 In-
structions 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 re-
spect to each Option purchased: (a) the Series to which such Op-
tion 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 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 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 Cus-
todian for the Fund, out of moneys held for the account of the Ser-
ies 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 pur-
chased 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 descri-
bed in preceding paragraph of this Article with respect to such Op-
tion upon receipt by the Custodian of the total amount payable to
the Fund, provided that the same conforms to the total amount pay-
able as set forth in such Certificate.
3. Promptly after the exercise by the Fund of any Call Op-
tion purchased by the Fund pursuant to paragraph 1 hereof, the Fund
shall deliver to the Custodian a Certificate specifying with re-
spect to such Call Option: (a) the Series to which such Call Op-
tion was specifically allocated; (b) the name of the issuer and the
title and number of shares subject to the Call Option; (c) the ex-
piration date; (d) the date of exercise and settlement; (e) the ex-
ercise 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 re-
ceipt of the Securities underlying the Call Option which was exer-
cised, 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 ex-
ercised, provided that the same conforms to the total amount pay-
able 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 re-
spect 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 ex-
piration 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 Op-
tion purchased by the Fund pursuant to paragraph 1 hereof, the Fund
shall deliver to the Custodian a Certificate specifying with re-
spect to such Index Option: (a) the Series to which such Index Op-
tion 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 ex-
ercise 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 Op-
tion 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 re-
spect to such Covered Call Option, such receipts as are required in
accordance with the customs prevailing among Clearing Members deal-
ing in Covered Call Options and shall impose, or direct a Deposi-
tory 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 forego-
ing, the Custodian has the right, upon prior written notification
to the Fund, at any time to refuse to issue any receipts for Secu-
rities 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 in-
structing 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 re-
turn 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 Op-
tion was written; (b) the name of the issuer and the title and num-
ber of shares for which the Put Option is written and which under-
lie the same; (c) the expiration date; (d) the exercise price; (e)
the premium to be received by the Fund; (f) the date such Put Op-
tion 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 de-
liver the same to the Clearing Member specified in the Certificate
upon receipt of the premium specified in said Certificate. Not-
withstanding the foregoing, the Custodian shall be under no obliga-
tion to issue any Put Option guarantee letter or similar document
if it is unable to make any of the representations contained there-
in.
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 re-
ceived; (d) the total amount payable by the Fund upon such deliv-
ery; (e) the amount of cash and/or the amount and kind of Securi-
ties 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 Ac-
count. Upon the return and/or cancellation of any Put Option guar-
xxxxx letter or similar document issued by the Custodian in connec-
tion 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 Certifi-
cate, upon delivery of such Securities, and shall make the with-
drawals specified in such Certificate.
10. Whenever the Fund writes an Index Option, the Fund shall
promptly deliver to the Custodian a Certificate specifying with re-
spect 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 writ-
ten; (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 Ac-
count 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 specifi-
cally agreed to issue, which are in accordance with the customs
prevailing among Clearing Members in Index Options and make the de-
posits into the Collateral Account specified in the Certificate, or
(2) make the deposits into the Margin Account specified in the Cer-
tificate.
11. Whenever an Index Option written by the Fund and descri-
bed in the preceding paragraph of this Article is exercised, the
Fund shall promptly deliver to the Custodian a Certificate specify-
ing 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 Secur-
ity 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 can-
cellation of the receipt, if any, delivered pursuant to the preced-
ing 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 descri-
bed in paragraphs, 6, 8 or 10 of this Article in a transaction ex-
pressly designated as a "Closing Purchase Transaction" or a "Clos-
ing Sale Transaction", the Fund shall promptly deliver to the Cus-
todian a Certificate specifying with respect to the Option being
purchased: (a) that the transaction is a Closing Purchase Transac-
tion or a Closing Sale Transaction; (b) the Series for which the
Option was written; (c) the instrument, currency, or Security sub-
ject 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 Op-
tion (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 pay-
ment 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 Arti-
cle 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 im-
posed restrictions on the Securities underlying the Call Option.
13. Upon the expiration, exercise or consummation of a Clos-
ing 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, exer-
cise, 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 Con-
tract(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 here-
under 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 set-
tlement amount to be paid or received, and with respect to a Xxxxx-
cial Futures Contract, the Securities and/or amount of cash to be
delivered or received; (c) the broker, dealer, or futures commis-
sion 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 with-
drawn from the Senior Security Account for such Series. The Custo-
xxxx shall make the payment or delivery specified in the Certifi-
cate, and delete such Futures Contract from the statements deliv-
ered 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 para-
graph 1 of this Article, and (b) the Futures Contract being offset.
The Custodian shall make payment out of the money specifically al-
located 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 Cer-
tificate. The withdrawals, if any, to be made from the Margin Ac-
count 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 Custo-
xxxx a Certificate specifying with respect to such Futures Contract
Option: (a) the Series to which such Option is specifically allo-
cated; (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 exer-
cise 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 fu-
tures commission merchant, to whom payment is to be made. The Cus-
todian 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 here-
of, the Fund shall deliver to the Custodian a Certificate specify-
ing with respect to each such sale: (a) Series to which such Fu-
tures Contract Option was specifically allocated; (b) the type of
Futures Contract Option (put or call); (c) the type of Futures Con-
tract 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 Secur-
ity 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 speci-
fying 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 Con-
tract 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 commis-
sion 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 Ser-
ies. 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 Ac-
count, if any, as specified in the Certificate. The deposits, if
any, to be made to the Margin Account shall be made by the Custo-
xxxx in accordance with the terms and conditions of the Margin Ac-
count 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 Fu-
tures Contract underlying the Futures Contract Option; (d) the name
of the broker or futures commission merchant through whom such Fu-
tures 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 de-
posited in the Senior Security Account for such Series. The Custo-
xxxx 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, pay-
able 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 withdraw-
als 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 Fu-
tures Contract Option described in this Article in order to liqui-
date 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 Con-
tract 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 with-
drawn from the Senior Security Account for such Series. The Custo-
xxxx 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 accor-
dance with the terms and conditions of the Margin Account Agree-
ment.
8. Upon the expiration, exercise, or consummation of a clos-
ing transaction with respect to, any Futures Contract Option writ-
ten 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 exer-
cise 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 Secu-
rities 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 Mar-
gin 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 de-
posited in a Senior Security Account, and (i) the name of the bro-
ker 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 settle-
ment; (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 Secur-
ity 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 bro-
ker the net total amount payable to the broker, and make the with-
drawals 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 Cus-
todian a Certificate, or in the event such Repurchase Agreement or
Reverse Repurchase Agreement is a Money Market Security, a Certifi-
cate, 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 Repur-
chase 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 Agree-
ment; 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 connec-
tion with such Reverse Repurchase Agreement. The Custodian shall,
upon receipt of the total amount payable to or by the Fund speci-
fied in the Certificate, Oral Instructions, or Written Instructions
make or accept the delivery to or from the broker, dealer, or fin-
ancial institution and the deposits, if any, to the Senior Security
Account, specified in such Certificate, Oral Instructions, or Writ-
ten Instructions.
2. Upon the termination of a Repurchase Agreement or a Re-
verse 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 Repur-
chase 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 Repur-
chase Agreement or Reverse Repurchase Agreement is to be termina-
xxx; 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 re-
ceived 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, speci-
fied in such Certificate, Oral Instructions, or Written Instruc-
tions.
3. The Certificates, Oral Instructions, or Written Instruc-
tions described in paragraphs 1 and 2 of this Article may with re-
spect 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 specifi-
cally allocated to a Series held by the Custodian hereunder, the
Fund shall deliver or cause to be delivered to the Custodian a Cer-
tificate 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 ag-
ainst the loan of the Securities, including the amount of cash col-
lateral 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 de-
signated 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 Securi-
ties 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 institu-
tion 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 Securi-
ties 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 Ser-
ies, 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 distri-
butions 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 Colla-
teral 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 is-
sued hereunder by the Custodian; provided, however, that the Custo-
xxxx 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 autho-
rized 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 docu-
ment or any receipt, such deficiency shall be a debt owed the Cus-
todian 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 re-
quest to any broker, dealer, or futures commission merchant speci-
fied in the name of a Margin Account a copy of the statement fur-
nished 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 speci-
fied 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 Securi-
ties held therein. No later than the close of business next suc-
ceeding 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 out-
standing 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 re-
solution 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 Cus-
todian 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 Dis-
tributor, the Custodian shall credit such money to the separate
account in the name of the Series for which such money was re-
ceived.
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 Custo-
xxxx hereunder in connection with a redemption of any Shares, it
shall furnish, or cause to be furnished, to the Custodian a Certi-
ficate 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 set-
ting forth the Series and number of Shares received by the Transfer
Agent for redemption and that such Shares are in good form for re-
demption, 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 Instruc-
tions 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 effec-
tive 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 in-
terest 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 Busi-
ness 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, in-
cluding pursuant to any Reverse Repurchase Agreement, not so speci-
fied 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 invest-
ment 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 ag-
ainst delivery of a stated amount of collateral. The Fund shall
promptly deliver to the Custodian a Certificate specifying with re-
spect to each such borrowing: (a) the Series to which such borrow-
ing 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 bor-
rowing 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 par-
ticular Securities, and (h) a statement specifying whether such
loan is for investment purposes or for temporary or emergency pur-
poses 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 exe-
cuted 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 Cer-
tificate. 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 de-
liver 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 Sub-
custodians and Foreign Depositories designated on Schedule A here-
to. 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 Deposi-
tory with which the Custodian has an agreement for such entity to
act as the Custodian's agent, as subcustodian, and which the Custo-
xxxx 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 rea-
sonably 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 secu-
rities 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 Sub-
custodian relating to its actions under its agreement with the Cus-
todian 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 Subcus-
todian 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 harm-
less, the Custodian from and against any loss, damage, cost, ex-
pense, 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 Custo-
xxxx 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 securi-
ties 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 For-
eign 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 Cus-
todian 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, no-
tices or reports of corporate action, proxies and proxy soliciting
materials.
7. Upon request of the Fund, the Custodian shall use reason-
able efforts to arrange for the independent accountants of the Fund
to be afforded access to the books and records of any Foreign Sub-
custodian, 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 Securi-
ties and Foreign Property is permitted by Section 17(f) of the In-
vestment 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 cer-
tain materials prepared by the Custodian and with such other in-
formation 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 sen-
tence. 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 not materially different from that
provided by the Custodian in maintaining the Fund's securities in
the United States. In addition, the Custodian shall monitor the
financial condition and general operational performance of the For-
eign Subcustodians and Foreign Depositories and shall promptly in-
form 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 share-
holders' equity of any Foreign Subcustodian will decline below $200
million (U.S. dollars or the equivalent thereof) or that its share-
holders' 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 perform-
ance 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 pro-
priety 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 Ar-
ticle X hereof or any Certificate, Oral Instructions or Written In-
structions 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 suf-
ficient 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 ac-
count of the Fund during the period of such loan or at the termina-
tion of such loan, provided, however, that the Custodian shall
promptly notify the Fund in the event that such dividends or inter-
est 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 Ac-
count 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 de-
posits 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 mer-
chant 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 pay-
ment.
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, recei-
ved by it on behalf of the Fund until the Custodian actually re-
ceives 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 of-
fers, 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. How-
ever, 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, pro-
secute 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 ag-
ainst 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 In-
structions 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 rea-
son 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-Custo-
dians, 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 de-
mands 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 allo-
cated 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 expen-
ses 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 ag-
ainst 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 provi-
sions 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 in-
clude, 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 in-
voice therefor to the Fund.
11. The Custodian shall be entitled to rely upon any Certi-
ficate, 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 for-
xxxx 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 instru-
ment, instruction or notice received by the Custodian and reason-
ably believed by the Custodian to be given in accordance with the
terms and conditions of any Margin Account Agreement. Without li-
miting the generality of the foregoing, the Custodian shall be
under no duty to inquire into, and shall not be liable for, the ac-
curacy 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 descri-
bed in Appendix E hereto, which are in the possession of the Custo-
xxxx 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 applic-
able 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 re-
cords shall be provided by the Custodian to the Fund or the Fund's
authorized representative, and the Fund shall reimburse the Custo-
xxxx its expenses of providing such copies. Upon reasonable req-
uest 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 com-
puter disc, or are similarly maintained, and the Fund shall xxxx-
xxxxx the Custodian for its expenses of providing such hard copy or
micro-film.
14. The Custodian shall provide the Fund with any report ob-
tained by the Custodian on the system of internal accounting con-
trol 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 gener-
ally 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 obliga-
tions under this Agreement, except for any such liability, claim,
loss and demand arising out of the negligence, bad faith, or will-
ful 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 pay-
ments 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 Pro-
cedures. 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 proce-
dures, guidelines or restrictions which it identifies with particu-
larity 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 Custo-
xxxx identifies procedures, guidelines or restrictions with which
it does not intend to comply, the Fund shall be entitled to termi-
nate 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 Ser-
ies without a Certificate, the Custodian will notify the Fund of
its intention to do so and afford the Fund the reasonable oppor-
tunity 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 Ser-
ies, then, after notice, the Custodian may proceed with the in-
tended sale.
20. The Custodian shall have no duties or responsibilities
whatsoever except such duties and responsibilities as are speci-
fically set forth or referred to in this Agreement, and no covenant
or obligation shall be implied in this Agreement against the Custo-
xxxx.
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, cer-
tified 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 invest-
ment 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 cus-
todian 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 Agree-
ment arising thereafter, other than the duty with respect to Secu-
rities 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 in-
stituted against it a proceeding seeking a judgment of insolvency
or bankruptcy or the entry of a order for relief under any applic-
able bankruptcy law or any other relief under any bankruptcy or in-
solvency 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 adminis-
trator, 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 Custo-
xxxx 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 reli-
ability 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 Cus-
todian.
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 dis-
closes the Information, to keep the Information confidential by us-
ing 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 Infor-
mation 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 Infor-
mation 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 ad-
xxxxx 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 Cus-
todian 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 mer-
chantability 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 re-
sponsible 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, em-
ployees 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 conse-
quential damages which the other party may incur or experience by
reason of its use of the Terminal Link even if such party, manufac-
turer or supplier has been advised of the possibility of such dam-
ages, 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 mal-
function, 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, omis-
sions or interruptions in, or delay or unavailability of, the Ter-
xxxxx 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 no-
xxxx 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 re-
ceipt 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 Per-
sons. The Fund agrees to furnish to the Custodian a new Certifi-
cate 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 en-
titled to rely and to act upon Oral Instructions, Written Instruc-
tions, 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 Certifi-
cate 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 addi-
tional officers are elected or appointed. Until such new Certifi-
cate 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 suffi-
ciently 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 juris-
diction 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 counter-
parts, 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 Decla-
ration of Trust of the Fund provides that the assets of a particu-
lar 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 Agree
ment 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 XXXXXX FUND
By: ------------------------------------
Xxxxxx X. Xxxxxxx, Secretary
[SEAL]
Attest:
By:
-----------------------------------
Xxxxxx X. Xxxx, Assistant Secretary
THE BANK OF NEW YORK
[SEAL] By: ------------------------------------
Xxxxx Xxxxx, Vice President
Attest:
By:
---------------------------
APPENDIX A
I, Xxxxxx X. Xxxxxxx, Secretary, and I, Xxxxxx X. Xxxx,
Assistant Secretary, of Xxxxxxxxxxx MidCap 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. Xxxxx Treasurer _________________________
Xxxxxx X. Xxxxxxx Secretary; EVP &
General Counsel of OFI _________________________
Xxxxxx X. Xxxx Assistant Secretary _________________________
Xxxxx Xxxxxx Assistant Treasurer _________________________
Xxxxxxxx X. Xxxxxxxx VP of OFI _________________________
Xxxxxxxxx X. Xxxx VP of OFI _________________________
Xxxxxx Xxxxxx Assistant Treasurer _________________________
Xxxxx X. Xxxxx VP of OFI _________________________
IN WITNESS WHEREOF, I hereunto set my hand in the seal of
Xxxxxxxxxxx XxxXxx 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 MidCap 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 Xxxxxx Assistant Treasurer ________________________________
Xxxxxx Xxxxx Treasurer ________________________________
Xxxxxx X. Xxxxxxx Secretary; EVP and General
Counsel of OFI ________________________________
Xxxxx Xxxxxx Assistant Treasurer ________________________________
Xxxxxx X. Xxxx Assistant Secretary ________________________________
(b) With respect to the following individuals, each such
individual has been designated by a resolution of the Board of
Trustees of the Fund to be authorized to execute on its behalf all
proper officers certificates or instructions for purposes of the
Fund s Custody Agreement with The Bank of New York and further
that the signatures of each individual below set forth opposite
their respective names are their true and correct signatures:
Xxxxxxxxx X. Xxxx VP of OFI _______________________
Xxxxxxxx X. Xxxxxxxx VP of OFI _________________________
Xxxxx Xxxxx VP of OFI ________________________________
IN WITNESS WHEREOF, I hereunto set my hand in the seal of
Xxxxxxxxxxx XxxXxx Fund, as of the _____ day of __________, 1997.
_________________________________
Xxxxxx X. Xxxxxxx
Vice President
__________________________________
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 XxxXxx
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 August 5, 1997,
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 XxxXxx 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:
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 XxxXxx
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 August 5, 1997, 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 MidCap 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 XxxXxx 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 August 5, 1997, 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 MidCap 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 XxxXxx 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 August 5, 1997, 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
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 MidCap 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 XxxXxx 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 August 5, 1997, 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 MidCap 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]
custody\745
