AMENDED AND RESTATED
FOREIGN CUSTODY MANAGER AGREEMENT
AGREEMENT made as of May 31, 2001, as amended from time to time,
between each investment company identified on Appendix A attached hereto
(each hereinafter referred to as the "Fund") individually and severally, and
not jointly and severally, and Citibank, N.A. ("Citibank").
WITNESSETH:
WHEREAS, the Fund appointed Citibank as foreign custody manager under a
certain Foreign Custody Manager Agreement dated September 14, 1998 (the
"Prior Agreement");
WHEREAS, the Fund and Citibank desires to amend and restate the Prior
Agreement;
WHEREAS, Citibank desires to continue to serve as a Foreign Custody
Manager and perform the duties set forth herein on the terms and conditions
contained herein;
NOW THEREFORE, in consideration of the mutual promises hereinafter
contained in this Agreement, the Fund and Citibank hereby agrees as follows:
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
1. Capitalized terms used in this Agreement and not otherwise
defined in this Agreement shall have the meanings given such terms in the
Rule.
2. "Board" shall mean the board of directors or board of trustees,
as the case may be, of the Fund.
3. "Eligible Foreign Custodian" shall have the meaning provided in
the Rule.
4. "Monitoring System" shall mean a system established by Citibank
to fulfill the Responsibilities specified in clauses 1(d) and (e) of Article
III of this Agreement.
5. "Responsibilities" shall mean the responsibilities delegated to
Citibank as a Foreign Custody Manager with respect to each Specified Country
and each Eligible Foreign Custodian selected by Citibank, as such
responsibilities are more fully described in Article III of this Agreement.
6. "Rule" shall mean Rule 17f-5 under the Investment Company Act of
1940, as amended, as such Rule became effective on June 12, 2000.
7. "Specified Country" shall mean each country listed on Schedule I
attached hereto (as amended from time to time) and each country, other than
the United States, constituting the primary market for a security with
respect to which the Fund has given settlement instructions to Citibank, N.A.
as custodian (the "Custodian") under its Custody Agreement with the Fund.
ARTICLE II
CITIBANK AS A FOREIGN CUSTODY MANAGER
1. The Fund on behalf of its Board hereby delegates to Citibank with
respect to each Specified Country the Responsibilities (the "Delegation").
2. Citibank accepts the Delegation and agrees in performing the
Responsibilities as a Foreign Custody Manager to exercise reasonable care,
prudence and diligence such as a bailee for hire having responsibility for
the safekeeping of the Fund's assets would exercise.
3. Citibank shall provide to the Fund (i) notice promptly after the
placement of assets of the Fund with a particular Eligible Foreign Custodian
selected by Citibank within a Specified Country, (ii) at such times as the
Board deems reasonable and appropriate based on the circumstances of the
Fund's foreign custody arrangements (but not less often than quarterly)
written reports notifying the Board of any material change in the
arrangements (including any material change in any contract governing such
arrangements) with respect to assets of the Fund with any such Eligible
Foreign Custodian, and (iii) not less often than annually a report
summarizing the material custodial risks known to Citibank which accompany
such arrangements.
ARTICLE III
RESPONSIBILITIES
1. Subject to the provisions of this Agreement, Citibank shall with
respect to each Specified Country select an Eligible Foreign Custodian. In
connection therewith, Citibank shall: (a) determine that assets of the Fund
held by such Eligible Foreign Custodian will be subject to reasonable care,
based on the standards applicable to custodians in the relevant market in
which such Eligible Foreign Custodian operates, after considering all factors
relevant to the safekeeping of such assets, including, without limitation,
those contained in Section (c)(1) of the Rule; (b) determine that the Fund's
foreign custody arrangements with each Eligible Foreign Custodian are
governed by a written contract with the Custodian which will provide
reasonable care for the Fund's assets based on the standards specified in
paragraph (c)(1) of the Rule; (c) determine that each contract with an
Eligible Foreign Custodian shall include the provisions specified in
paragraph (c)(2)(i)(A) through (F) of the Rule or, alternatively, in lieu of
any or all of such (c)(2)(i)(A) through (F) provisions, such other provisions
as Citibank determines will provide, in their entirety, the same or a greater
level of care and protection for the assets of the Fund as such specified
provisions; (d) monitor pursuant to the Monitoring System the appropriateness
of maintaining the assets of the Fund with a particular Eligible Foreign
Custodian pursuant to paragraph (c)(1) of the Rule including any material
change in the contract governing such arrangement; and (e) promptly advise
the Fund whenever an arrangement (including any material change in the
contract governing such arrangement) described in preceding clause (d) no
longer meets the requirements of the Rule. Citibank, as Foreign Custody
Manger, will make the determination that it is appropriate to maintain assets
in each Eligible Foreign Custodian and will exercise reasonable care in the
process.
2. For purposes of clause (d) of preceding Section 1 of this
Article, Citibank's determination of appropriateness shall not include, nor
be deemed to include, any evaluation of Country Risks associated with
investment in a particular country. For purposes hereof, "Country Risks"
shall mean systemic risks of holding assets in a particular country
including, but no limited to, (a) an Eligible Foreign Custodian's use of an
Eligible Securities Depository as defined in Rule 17f-7 under the Investment
Company Act of 1940, as amended; (b) such country's financial
infrastructure, (c) such country's prevailing custody and settlement
practices, (d) nationalization, expropriation or other governmental actions,
(e) regulation of the banking or securities industry, (f) currency controls,
restrictions, devaluations or fluctuations, and (g) market conditions which
affect the orderly execution of securities transactions or affect the value
of securities.
ARTICLE IV
REPRESENTATIONS
1. The Fund hereby represents that: (a) this Agreement has been duly
authorized, executed and delivered by the Fund, constitutes a valid and
legally binding obligation of the Fund enforceable in accordance with its
terms, and no statute, regulation, rule, order, judgment or contract binding
on the Fund prohibits the Fund's execution or performance of this Agreement;
(b) this Agreement has been approved and ratified by the Board at a meeting
duly called and at which a quorum was at all times present; and (c) the Board
or its investment advisor has considered the Country Risks associated with
investment in each Specified Country and will have considered such risks
prior to any settlement instructions being given to the Custodian with
respect to any other Specified Country.
2. Citibank hereby represents that (a) Citibank is duly organized
and existing under the laws of the State of New York, with full power to
carry on its businesses as now conducted, and to enter into this Agreement
and to perform its obligations hereunder; (b) this Agreement been duly
authorized, executed and delivered by Citibank, constitutes a valid and
legally binding obligation of Citibank enforceable in accordance with its
terms, and no statue, regulation, rule, order, judgment or contract binding
on Citibank prohibits Citibank's execution or performance of this Agreement;
and (c) Citibank has established and will maintain the Monitoring System.
ARTICLE V
CONCERNING CITIBANK
1. Citibank shall not be liable for any costs, expenses, damages,
liabilities or claims, including attorneys' and accountants' fees, sustained
or incurred by, or asserted against, the Fund except to the extent the same
arises out of the failure of Citibank to exercise the care, prudence and
diligence required by Section 2 of Article II hereof. In no event shall
Citibank be liable to the Fund, the Board, or any third party for special,
indirect or consequential damages, or for lost profits or loss of business,
arising in connection with this Agreement. Anything contained herein to the
contrary notwithstanding, nothing contained herein shall affect or alter the
duties and responsibilities of Citibank or the Fund under any other agreement
between Citibank and the Fund, including without limitation, the Custody
Agreement or any Securities Lending Agreement.
2. The Fund agrees to indemnify Citibank and holds it harmless from
and against any and all costs, expenses, damages, liabilities or claims,
including attorneys' and accountants' fees, sustained or incurred by, or
asserted against, Citibank by reason or as a result of any action or
inaction, or arising out of Citibank's performance hereunder, provided that
the Fund shall not indemnify Citibank to the extent any such costs, expenses,
damages, liabilities or claims arises out of Citibank's failure to exercise
the reasonable care, prudence and diligence required by Section 2 of Article
II hereof.
3. Citibank shall only such duties as are expressly set forth
herein. In no event shall Citibank be liable for any Country Risks
associated with investments in a particular country.
ARTICLE VI
MISCELLANEOUS
1. Any notice or other instrument in writing, authorized or required
by this Agreement to be given to Citibank, shall be sufficiently given if
received by it at its offices at 000 Xxxx Xxxxxx, 20th Floor, Xxxx 0, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxx Xxxxxxxx or at such place as Citibank
may from time to time designate in writing.
2. Any notice or other instrument in writing, authorized or required
by this Agreement to be given to the Fund shall be sufficiently given if
received by it at its offices at c/o OppenheimerFunds, Inc. 000 Xxxxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: General Counsel, or
----------
at such other place as the Fund may from time to time designate in writing.
3. In case any provision in or obligation under this Agreement shall
be invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions shall not in any way
be affected thereby. This Agreement may not be amended or modified in any
manner except by a written agreement executed by both parties. 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 either party without the written consent
of the other.
4. This Agreement shall be construed in accordance with the
substantive laws of the State of New York, without regard to conflicts of
laws principles thereof. The Fund and Citibank hereby consent to the
jurisdiction of a state or federal court situated in New York City, New York
in connection with any dispute arising hereunder. The Fund hereby
irrevocably waives, to the fullest extent permitted by applicable law, any
objection which it may now or hereafter have to the laying of venue of any
such proceeding brought in such a court and any claim that such proceeding
brought in such a court has been brought in an inconvenient forum. The Fund
and Citibank each hereby irrevocably waives any and all rights to trial by
jury in any legal proceeding arising out of or relating to this Agreement.
5. The parties hereto agree that in performing hereunder, Citibank
is acting solely on behalf of the Fund and no contractual or service
relationship shall be deemed to be established hereby between Citibank and
any other person.
6. This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original, but such counterparts shall,
together, constitute only one instrument.
7. This Agreement shall terminate simultaneously with the
termination of the Custody Agreement between the Fund and the Custodian, and
may otherwise be terminated by either party giving to the other party a
notice in writing specifying the date of such termination, which shall be not
less than ninety (90) days after the date of such notice.
8. In consideration of the services provided by Citibank hereunder,
the Fund shall pay to Citibank such compensation and out-of-pocket expenses
as may be agreed upon from time to time.
9. For each Fund organized as a Massachusetts trust, a copy of its
Declaration of Trust is on file with the Secretary of the Commonwealth of
Massachusetts. Notice is hereby given that each such instrument is executed
on behalf of the trustees of each such Fund and not individually, and that
the obligations of this Agreement are not binding upon any of the trustees or
shareholders individually but are binding only upon the respective Fund. The
parties expressly agree that Citibank and its assignees and affiliates shall
look solely to the respective Fund's assets and property with respect to
enforcement of any claim.
IN WITNESS WHEREOF, the Fund and Citibank have caused this Agreement to
be executed by their respective officers, thereunto duly authorized, as of
this date first above written.
CITIBANK, N.A., New York Office OPPENHEIMERSFUNDS
By: /s/ Xxxx Xxxxxxxx By: /s/ Xxxxxx X. Xxxx
---------------------- -------------------------
Xxxxxx X. Xxxx, Secretary
On behalf of each investment company identified on Appendix A attached
hereto individually and severally, and not jointly and severally
Name: Xxxx Xxxxxxxx
--------------------
Title: Vice President
-------------------
Appendix A
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FUND ACCOUNT # ACCOUNT NAME
---- --------- ------------
150 099920 Centennial Money Market Trust
160 099862 Centennial Tax Exempt Trust
170 099975 Centennial Government Trust
180 845873 Centennial California Tax Exempt Trust
200 345246 Xxxxxxxxxxx Money Market Fund
205 Xxxxxxxxxxx Series Fund, Inc. for the account of
Xxxxxxxxxxx Disciplined Allocation Fund
211 Xxxxxxxxxxx Trinity Core Fund
215 Xxxxxxxxxxx Global Growth & Income Fund
220 847143 Xxxxxxxxxxx U.S. Government Trust
225 847940 Xxxxxxxxxxx Quest Value
236 847941 Xxxxxxxxxxx Quest Opportunity Value
251 847942 Xxxxxxxxxxx Quest Small Cap Value
254 847945 Xxxxxxxxxxx Quest Global Value
257 847943 Xxxxxxxxxxx Quest Balanced Value Fund
261 Xxxxxxxxxxx Europe Fund
270 Xxxxxxxxxxx Xxxxxx Xxxx
000 Xxxxxxxxxxx Xxxxxxx Income Fund
310 347080 Xxxxxxxxxxx Municipal Bond Fund
345 Bond Fund Series for the account of
Xxxxxxxxxxx Convertible Securities Fund
351 849393 Xxxxxxxxxxx Legacy Program/Growth Pool
352 849394 Xxxxxxxxxxx Legacy Program/Income Pool
353 849396 Xxxxxxxxxxx Legacy Program/Money Pool
355 847622 Limited Term New York Municipal Fund
365 847621 Rochester Fund Municipals
360 847141 Xxxxxxxxxxx AMT-Free New York Municipals
(formerly Xxxxxxxxxxx New York Municipal Fund)
375 Xxxxxxxxxxx Series Fund, Inc. for the account of
Xxxxxxxxxxx Value Fund
381 Xxxxxxxxxxx Trinity Value Fund
395 847331 Xxxxxxxxxxx New Jersey Municipal Fund
410 Xxxxxxxxxxx Gold & Special Minerals Fund
416 849286 Xxxxxxxxxxx Core Plus Fund
420 Xxxxxxxxxxx Total Return Fund, Inc.
500 Xxxxxxxxxxx Discovery Fund
505 Xxxxxxxxxxx Select Managers for the account of
Mercury Advisors S&P 500 Index Fund
510 Xxxxxxxxxxx Select Managers for the account of
Mercury Advisors Focus Growth Fund
515 Xxxxxxxxxxx Select Managers for the account of
QM Active Balanced Fund
Xxxxxxxxxxx Select Managers for the account of
520 Xxxxxxxx Growth Fund
525 Xxxxxxxxxxx Select Managers for the account of
Salomon Brothers Capital Fund
530 Xxxxxxxxxxx Select Managers for the account of
Gartmore Millenium Growth Fund II
535 Xxxxxxxxxxx Total Return Bond Fund
600 Xxxxxxxxxxx Multi Cap Value Fund
625 Xxxxxxxxxxx International Value Trust for the
account of
Xxxxxxxxxxx International Value Fund
635 Xxxxxxxxxxx International Large Cap-Core Trust for
the account of
Xxxxxxxxxxx International Large Cap-Core Fund
000 Xxxxxxxxxxx Xxxx Xxxxxx Funds, Inc. for the
account of
Xxxxxxxxxxx Xxxx Xxxxxx Xxxx
000 Xxxxxxxxxxx Emerging Growth Fund
000 Xxxxxxxxxxx Xxxx Xxxxxx Opportunity Fund
740 845861 Xxxxxxxxxxx Pennsylvania Municipal Fund
745 Xxxxxxxxxxx XxxXxx Fund
755 849103 Xxxxxxxxxxx Capital Preservation Fund
760 845764 Xxxxxxxxxxx Xxxx Xxxxxxxx
000 Xxxxxxxxxxx Xxxxxxxx Technologies Fund
775 Xxxxxxxxxxx Trinity Large Cap Growth Fund
780 845766 Centennial New York Tax Exempt Trust
790 845767 Xxxxxxxxxxx California Municipal Fund
795 847279 Xxxxxxxxxxx Rochester National Municipals
(Formerly Xxxxxxxxxxx Florida Municipal Fund)
855 846077 Xxxxxxxxxxx Limited Term Government Fund
860 846078 Xxxxxxxxxxx Intermediate Municipal Fund
870 846080 Centennial America Fund
000 Xxxxxxxxxxx Xxxxxxxxxx Fund
Revised July 2003
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NYGCSA
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GLOBAL CUSTODIAL SERVICES
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AGREEMENT
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TABLE OF CONTENTS
1. DEFINITIONS.............................................................2
2. APPOINTMENT OF CUSTODIAN................................................4
3. PROPERTY ACCEPTED.......................................................4
4. REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS............................4
5. INSTRUCTIONS............................................................5
6. PERFORMANCE BY THE CUSTODIAN............................................6
7. REGISTRATION AND OTHER ACTION...........................................8
8. CUSTODY CASH ACCOUNT PAYMENTS...........................................8
9. ASSURED INCOME PAYMENT SERVICE..........................................9
10. WITHDRAWAL AND DELIVERY..................................................9
11. ACCESS AND RECORDS.......................................................9
12. USE OF AGENTS...........................................................10
13. CITICORP ORGANIZATION INVOLVEMENT.......................................10
14. SCOPE OF RESPONSIBILITY.................................................11
15. LITIGATION; INDEMNITY...................................................13
16. SET-OFF.................................................................14
17. FEES AND EXPENSES.......................................................14
18. TAX STATUS/WITHHOLDING TAXES............................................14
19. TERMINATION.............................................................15
20. ASSIGNMENT..............................................................15
21. INTENTIONALLY DELETED...................................................15
22. DISCLOSURE..............................................................15
23. NOTICES.................................................................16
24. GOVERNING LAW AND JURISDICTION.........................................16
25. MISCELLANEOUS...........................................................16
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NYGCSA
THIS GLOBAL CUSTODIAL SERVICES AGREEMENT is made on the 15th day of July,
2003, by and between each investment company identified on Appendix A
attached hereto (each hereinafter referred to as the "Client") individually
and severally, and not jointly and severally, and Citibank, N. A. (the
"Custodian").
1. DEFINITIONS
-----------
"Agreement" means this Global Custodial Services Agreement, as amended
from time to time, and any other terms and conditions agreed upon by the
Client and the Custodian in writing from time to time in connection with this
Agreement.
"Assured Income Payment Service" means the Custodian's services in
which interest, dividends or other such periodic income, to which the Client
is entitled, on Securities specified by the Custodian from time to time at
its absolute discretion, are credited to the Custody Cash Account in respect
of such Securities.
"Assured Income Payment Standards" means the terms and conditions
governing the Assured Income Payment Service, as such terms and conditions
are amended and/or supplemented from time to time by, and at the absolute
discretion of, the Custodian.
"Assured Payment" means, in relation to those Securities specified by
the Custodian under the Assured Income Payment Service, an amount equal to
the interest, dividends or periodic income that is due to the Client in
respect of such Securities less any taxes, duties, levies, charges or any
other withholding payments payable in respect of such interest, dividends or
periodic income.
"Assured Payment Date" means, in relation to the payment of any
interest, dividend or periodic income of any particular Securities specified
by the Custodian under the Assured Income Payment Service, the date on which
such interest, dividend or periodic income is normally payable in respect of
such Securities or such other date as may be notified by the Custodian to the
Client from time to time.
"Authorized Person" means (i) any person who has been authorized by the
Client (including, for avoidance of doubt, any officer or employee of such
agent or person), by notice in writing to the Custodian, to act on its behalf
in the performance of any act, discretion or duty under this Agreement, or
(ii) any other person holding a duly executed power of attorney from the
Client which is in a form acceptable to the Custodian.
"Branch" means any branch or office of Citibank, N.A.
"Citicorp Organization" means Citicorp and any company of which
Citicorp is, now or hereafter, directly or indirectly a shareholder or
owner. For the purposes of this Agreement, each Branch shall be deemed to be
a separate member of the Citicorp Organization.
"Clearance System" means The Federal Reserve Bank of New York, The
Depository Trust Company, Participants Trust Company, Cedel Bank, S.A., the
Euroclear System operated by Xxxxxx Guaranty Trust Company of New York, the
CREST system operated by CREST CO. Limited, the Central Money Markets Office,
the Central Gilts Office and such other clearing agency, settlement system or
depository as may from time to time be used in connection with transactions
relating to Securities, and any nominee, clearing agency, or depository for
any of the foregoing.
"Custody Account" means the custody account or accounts in the name of
the Client and/or such other name as the Client may reasonably designate, for
the deposit of any Property (other than cash) from time to time received by
the Custodian for the account of the Client.
"Custody Cash Account" means the cash account or accounts, which, at
the discretion of the Client, may be either a subaccount(s) of the Custody
Account or a demand deposit account(s), in the name of the Client and/or such
other name as the Client may reasonably designate, for the deposit of cash in
any currency received by the Custodian from time to time for the account of
the Client, whether by way of deposit or arising out of or in connection with
any Property in the Custody Account.
"Deposit" includes, with respect to any Securities not physically
maintained in the possession of the Custodian (e.g. with a Clearance System
or Subcustodian), the crediting of such Securities to the Custody Account.
"Fee Agreement" means the agreement between the Custodian and the
Client setting forth the fees, costs and expenses to be paid by the Client to
the Custodian in connection with the custodial services provided pursuant to
this Agreement, as such fee agreement may be amended at the Custodian's
reasonable discretion from time to time by prior written agreement of the
Custodian and the Client.
"Hold" includes, with respect to any Securities not physically
maintained in the possession of the Custodian (e.g. with a Clearance System
or Subcustodian), maintaining the credit of such Securities to the Custody
Account.
"Instructions" means any and all instructions received by the Custodian
from, or reasonably believed by the Custodian in good faith to be from, any
Authorized Person, including any instructions communicated through any manual
or electronic medium or system agreed between the Client and the Custodian
and on such terms and conditions as the Custodian and the Client may agree
from time to time.
"person" means any person, firm, company, corporation, government,
state or agency of a state, or any association or partnership (whether or not
having separate legal personality) of two or more of the foregoing.
"Property" means, as the context requires, all or any part of any
Securities, cash, or any other property from time to time held for the Client
under the terms of this Agreement.
"Rules" means any statutes, rules and regulations (whether of a local
regulatory authority, stock exchange or other entity) in any jurisdiction
with which the Custodian may from time to time be required to comply in the
provision of its services hereunder.
"Securities" means bonds, debentures, notes, stocks, shares, securities
or other financial assets including, but not limited to instruments commonly
known as derivatives, acceptable to the Custodian and all moneys, rights or
property which may at any time accrue or be offered (whether by way of bonus,
redemption, preference, option or otherwise) in respect of any of the
foregoing and any certificates, receipts, warrants or other instruments
(whether in registered or unregistered form) representing rights to receive,
purchase or subscribe for any of the foregoing or evidencing or representing
any other rights or interests therein (including, without limitation, any of
the foregoing not constituted, evidenced or represented by a certificate or
other document but by an entry in the books or other permanent records of the
issuer, a trustee or other fiduciary thereof, a Clearance System or other
person).
"Service Standards" means any written service standards governing the
day to day operations of the custodial services which may be provided to the
Client pursuant to this Agreement subject to such modifications as may be
agreed to by the Custodian and the Client.
"Subcustodian" means a subcustodian (other than a Clearance System)
appointed by the Custodian for the safe-keeping, administration, clearance
and settlement of Securities.
"Taxes" means all taxes, levies, imposts, charges, assessments,
deductions, withholdings and related liabilities, including additions to tax,
penalties and interest imposed on or in respect of the Property, the
transactions effected under this Agreement or the Client; PROVIDED THAT Taxes
does not include income or franchise taxes imposed on or measured by the net
income of the Custodian or its agents.
"1940 Act" means the United States Investment Company Act of 1940.
2. APPOINTMENT OF CUSTODIAN
------------------------
(A) The Client hereby appoints the Custodian to act as its custodian in
accordance with the terms hereof and authorizes the Custodian to establish on
its books, on the terms of this Agreement, the Custody Account, to be
designated to show that the Securities belong to the Client and are
segregated from the Custodian's assets and the Custody Cash Account.
(B) Subject to the express terms of this Agreement, the Client understands
and agrees that the obligations and duties hereunder of the Custodian shall
be performed only by the Custodian or its agents, and shall not be deemed
obligations or duties of any other member of the Citicorp Organization unless
appointed by the Custodian, as contemplated hereby. The Client agrees that
the Custodian may register or record legal title to any Securities in the
name of a nominee company or a Subcustodian in the Citicorp Organization and
may appoint a member of the Citicorp Organization to be a Subcustodian;
provided, however, the Custodian's books and records shall reflect that such
securities are held for the benefit of the Client.
(C) The Client agrees to take any such action which may be necessary and to
execute further documents and provide such materials and information as may
be reasonably requested by the Custodian to enable the Custodian to perform
the duties and obligations under this Agreement, including participation in
any relevant Clearance System, and will notify the Custodian as soon as it
becomes aware of any inaccuracy in such materials or information.
(D) All custody services by the Custodian hereunder shall be provided in
accordance with the Service Standards, a copy of which the Custodian may
supply to the Client from time to time. In the event of any conflict between
any term of this Global Custodial Services Agreement and any term of the
Service Standards, the Global Custodial Services Agreement shall prevail with
respect to such term.
(E) The Client agrees to comply with any relevant security procedures
relating to the provision of custody services under this Agreement which may
be imposed on the Client by any relevant Clearance System, any relevant
securities market, or as may be agreed to between the Client and the
Custodian from time to time, as the case may be.
3. PROPERTY ACCEPTED
-----------------
(A) Subject to Section 3(C) below, the Custodian agrees to accept for
custody in the Custody Account any Securities which are capable of deposit
under the terms of this Agreement.
(B) Subject to Section 3(C) below, the Custodian agrees to accept for
deposit in the Custody Cash Account, cash in any currency (which shall, if
necessary, be credited by the Custodian to different accounts in the
currencies concerned), such cash to be owed to the Client by the Custodian as
banker.
(C) The Custodian may in its reasonable discretion refuse to accept (in
whole or in part) any proposed deposit in either the Custody Account or the
Custody Cash Account if the Custodian reasonably believes that the acceptance
of such deposit would violate any law, rule, regulation, practice or policy
to which the Custodian is subject. The Custodian shall immediately notify
the Client of any such refusal and shall, to the extent possible without any
such violation, establish lawful custody thereof subject to Client's approval.
4. REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
--------------------------------------------
(A) The Client hereby represents, warrants and undertakes to the Custodian
that:
(i) it is duly organized and validly existing under the laws of the
jurisdiction of its organization;
(ii) during the term of this Agreement it (and any person on whose
behalf it may act as agent or otherwise in a representative
capacity) has and will continue to have, or will take all action
necessary to obtain, full capacity and authority to enter into
this Agreement and to carry out the transactions contemplated
herein, and has taken and will continue to take all action to
authorize the execution, delivery and performance of obligations
of the Client, and the validity and enforceability of such
obligations and the rights of the Custodian, under this Agreement;
(iii)except as provided in Clause 16 of this Agreement or resulting
from acts of the Custodian, the Client shall, at all times be
entitled or otherwise authorized to deal with, and dispose of,
all or any part of the Property, whether through a relevant
Clearance System or otherwise, except for any necessary
government consents in any applicable jurisdiction; (which Client
shall use commercially reasonable efforts to obtain).
(iv) Subject to paragraph 14(N), it will assert its interest in Property
held by the Custodian in any Clearance System only in such a way
as could not prevent a transfer of title to a unit of such
Property by the Custodian (or by any other person) where such
transfer is required by the Clearance System; provided that
nothing further shall limit the Client's rights pursuant to
Section 15 hereof.
(v) this Agreement is legal, valid and binding on the Client;
(vi) on or prior to the execution of this Agreement, the Client has provided
to the Custodian certified true copies of evidence of the due
authorization for the execution, delivery and performance of
this Agreement;
(vii) except as provided in Clause 16 of this Agreement, all Property
deposited with the Custodian shall, at all times, be free from
all charges, mortgages, pledges or other such encumbrances,
other than arising in connection with settlement, or to the
extent resulting from the acts of the Custodian.
The Client agrees to inform the Custodian promptly if any statement set forth
in this Section 4(A) ceases to be true and correct as of any date after the
date hereof.
(B) The Custodian hereby represents, warrants and undertakes to the Client
that:
(i) it is duly organized and validly existing under the laws of the
jurisdiction of its organization;
(ii) during the term of this Agreement it has and will continue to
have, or will take all action necessary to obtain, full capacity
and authority to enter into this Agreement and to carry out the
transactions contemplated herein, and has taken and will continue
to take all action (including, without limitation, the obtaining
of all necessary governmental consents in any applicable
jurisdiction) to authorize the execution, delivery and
performance of the obligations of the Custodian, and the validity
and enforceability of such obligations and the rights of Client
under this Agreement; and
(iii) this Agreement is legal, valid and binding on the Custodian.
The Custodian agrees to inform the Client promptly if any statement set forth
in this Section 4(B) ceases to be true and correct as of any date after the
date hereof.
5. INSTRUCTIONS
------------
(A) The Custodian may, in its absolute discretion and without liability on
its part, except for negligence, rely and act upon (and the Client shall be
bound by) any Instructions. Instructions shall continue in full force and
effect until canceled or superseded; PROVIDED THAT any Instruction canceling
-------------
or superseding a prior Instruction must be received by the Custodian at a
time and in a manner that accords the Custodian a reasonable opportunity to
act upon such Instruction. The Custodian shall be entitled to rely upon the
continued authority of any Authorized Person to give Instructions until the
Custodian receives notice from the Client to the contrary.
(B) Instructions shall be governed by and carried out subject to the
prevailing laws, Rules, operating procedures and market practice of any
relevant stock exchange, Clearance System or market where or through which
they are to be executed or carried out, and shall be acted upon only during
banking hours (including applicable cut-off times) and on banking days when
the applicable financial markets are open for business.
(C) Instructions delivered to the Custodian by telephone or facsimile shall
be promptly confirmed in writing, by tested telex, SWIFT, letter, the
Custodian's proprietary electronic banking system or as provided in the
Service Standards, such confirmation shall, where relevant, be made by an
Authorized Person. However, the Custodian may, in its absolute discretion,
rely and act upon telephone or facsimile Instructions before the written
confirmation is received.
(D) The Custodian has offered the Client security procedures for the
transmission of Instructions to the Custodian (and the Client acknowledges
that it has received the same and agrees that the security procedures
mutually agreed to by the Client and the Custodian are commercially
reasonable). As long as the Custodian acts in compliance with such security
procedures and this Section 5, it shall have no further duty to verify the
identity or authority of the person giving or confirming, or the genuineness
or contents of, any Instruction.
(E) The Custodian is authorized to rely upon any Instructions received by
any means, provided that the Custodian and the Client have agreed upon the
means of transmission and the method of identification for such Instructions.
(F) Instructions are to be given in the English language. The Custodian
may in its reasonable discretion and without any liability on its part, act
upon what it reasonably believes in good faith such Instructions to be;
notwithstanding any other provision hereof, the Custodian shall have the
right, in its reasonable discretion to refuse to execute any such Instruction
that the Custodian believes in good faith to be unauthorized or erroneous, in
which event the Custodian shall notify the Client of such refusal and the
reasons therefor without undue delay.
(G) The Client agrees to be bound by any Instructions reasonably believed
by the Custodian to be genuine, whether or not authorized, given to the
Custodian in the Client's name and accepted by the Custodian without
negligence in accordance with the provisions of this Section 5.
6. PERFORMANCE BY THE CUSTODIAN
----------------------------
(A) Custodial duties not requiring further Instructions. In the absence of
----------------------------------------------------
contrary Instructions, the Custodian is authorized by the Client to, and
where applicable, the Custodian shall promptly, carry out the following
actions in relation to the Property:
(i) except as otherwise provided in this Agreement, separately
identify the Property on its records as being held for the
account of the Client and segregate all Property held on behalf
of the Client by the Custodian from the assets of the Custodian;
(ii) sign any affidavits, certificates of ownership or other
certificates relating to the Property which may be required by
any tax or regulatory authority or under the laws of any relevant
jurisdiction, whether governmental or otherwise, and whether
relating to ownership, or income, capital gains or other tax,
duty or levy (and the Client further agrees to ratify and to
confirm or to do, or to procure the doing of, such things as may
lawfully be necessary or appropriate to complete or evidence the
Custodian's actions under this Section 6(A)(ii) or otherwise
under the terms of this Agreement);
(iii) collect and receive, for the account of the Client, all income,
payments and distributions in respect of the Property, and credit
the same to the Custody Cash Account;
(iv) take any action which is necessary and proper in connection with
the receipt of income, payments and distributions as are referred
to in Section 6(A)(iii) above, including, without limitation, the
presentation of coupons and other interest items;
(v) collect, receive and hold for the account of the Client any
capital arising out of or in connection with the Property whether
as a result of it being called or redeemed or otherwise becoming
payable and credit the same to the Custody Cash Account;
(vi) take any action which is necessary and proper in connection with
the receipt of any capital as is referred to in Section 6(A)(v)
above, including, without limitation, the presentation for
payment of any Property which becomes payable as a result of its
being called or redeemed or otherwise becoming payable and the
endorsement for collection of checks, drafts and other negotiable
instruments;
(vii) take any action which is necessary and proper to enable the
Custodian to provide services to the Client within, and to
observe and perform its obligations in respect of, any relevant
Clearance System;
(viii) collect, receive and hold for the account of the Client all
Securities received by the Custodian as a result of a stock
dividend, share sub-division or reorganization, capitalization of
reserves or otherwise;
(ix) take any action which is necessary and proper in connection with the
receipt of Securities referred to in Section 6(A)(viii) above;
(x) exchange interim or temporary receipts for definitive
certificates, and old or overstamped certificates for new
certificates and hold such definitive and/or new certificates in
the Custody Account;
(xi) make cash disbursements for any expenses incurred in handling the
Property and for similar items in connection with the Custodian's
duties under this Agreement in accordance with the Fee Agreement,
and debit the same to the Client Cash Account or any other
account of the Client with the Custodian;
(xii) deliver to the Client transaction advices and/or regular statements of
account showing the Property held at such intervals as may be
agreed between the parties hereto but subject always to
applicable Rules; and
(xiii) monitor on a continuing basis the custody risks associated with
maintaining assets with any Eligible Securities Depository (as
defined in Rule 17f-7 under the 0000 Xxx) with which the Client
maintains or proposes to maintain assets pursuant to this
Agreement, and promptly notify the Client of any material change
in such risks (Custodian having delivered to Client an analysis
of the custody risks associated with maintaining assets with each
such Eligible Securities Depository);
The Custodian agrees to exercise reasonable care, prudence and
diligence in performing the duties set forth in Section 6(c)(xii)
above
(B) Custodial duties requiring Instructions. The Custodian is authorized
-------------------------------------------
by the Client to, and where applicable, the Custodian shall, carry out the
following actions in relation to the Property only upon receipt of and in
accordance with specific Instructions:
(i) make payment for and receive Property, or deliver or dispose of
Property;
(ii) (subject to Section 7(C)) deal with subscription, rights, bonus
or scrip issues, conversions, options, warrants and other similar
interests or any other discretionary right in connection with
the Property; and
(iii) subject to the agreement of the Custodian, to carry out any
action other than those mentioned in Section 6(A) above.
7. REGISTRATION AND OTHER ACTION
-----------------------------
(A) The Client understands and agrees that, except as may be specified in
the Service Standards, Property shall be registered as the Custodian may
direct either in the name of the Custodian, Subcustodian or Clearance System,
or nominee of any of them, in the jurisdiction where the Property is required
to be registered or otherwise held; provided, however that the books and
records of the Custodian shall reflect that such securities are held for the
benefit of the Client. Where feasible, the Custodian will arrange on written
request by the Client for the registration of Property with the issuer or its
agent in the name of the Client or its nominee. The Client understands and
agrees, however, that the Custodian shall have discretion to determine
whether such direct registration is feasible.
(B) The Custodian shall, to the extent reasonably possible, notify, make
available or deliver to the Client, in a timely manner, all official notices,
circulars, reports and announcements that are received by the Custodian in
such capacity concerning the Securities held on the Client's behalf that
require discretionary action.
(C) The Custodian shall provide proxy services to the Client only where
there is a separate agreement in relation to proxy services between the
Custodian and the Client.
(D) Upon receipt of each transaction advice and/or statement of account,
the Client shall examine the same and notify the Custodian within sixty (60)
days of the date of any such advice or statement of any discrepancy between
Instructions given and the situation shown in the transaction advice and/or
statement, and/or of any other errors therein. In the event that the Client
does not inform the Custodian in writing of any exceptions or objections
within sixty (60) days after the date of such transaction advice and/or
statement, the Client shall be deemed to have approved such transaction
advice and/or statement.
8. CUSTODY CASH ACCOUNT PAYMENTS
-----------------------------
(A) Except as otherwise provided herein, the Custodian shall make, or cause
its agents to make, payments of cash credited to the Custody Cash Account:
(i) in connection with the purchase of Property (other than cash) for
the account of the Client in accordance with Instructions;
(ii) in payment for the account of the Client of (A) all Taxes, fees,
costs and expenses reasonably incurred by the Custodian or its
agents under or in connection with the terms of this Agreement;
provided however, no such payments shall be made for any unusual
------------------
or non-routine claims or liabilities unless prior notice is given
and the Client consent is obtained and (B) all amounts owed to
the Custodian pursuant to the Fee Agreement;
(iii) for payments to be made in connection with the conversion,
exchange or surrender of Property held in the Custody Account;
(iv) pursuant to assured payment obligations incurred in the capacity
of settlement bank on behalf of the Client within a relevant
Clearance System;
(v) for other purposes as may be specified by the Client in its
Instructions; or
(vi) upon the termination of this Agreement on the terms hereof;
PROVIDED THAT, unless otherwise agreed, the payments referred to above shall
-------------
not exceed the funds available in the Custody Cash Account at any time. The
Client shall promptly reimburse the Custodian for any advance of cash or any
such taxes, charges, expenses, assessments, claims or liabilities upon
request for payment. Notwithstanding the foregoing, nothing in this
Agreement shall obligate the Custodian to extend credit, grant financial
accommodation or otherwise advance moneys to the Client or assume financial
risk on behalf of the Client for the purpose of meeting any such payments or
otherwise carrying out any Instructions.
(B) Unless otherwise provided herein, the proceeds from the sale or
exchange of Property will be credited to the Custody Cash Account on the date
the proceeds are actually received by the Custodian.
9. ASSURED INCOME PAYMENT SERVICE
------------------------------
The Custodian may, at its absolute discretion, offer the Client an
Assured Income Payment Service in respect of specific Securities, as may be
notified by the Custodian to the Client from time to time. In relation to
any such Securities, the Custodian may, at its absolute discretion, cause the
Custody Cash Account to be credited with an Assured Payment on the Assured
Payment Date relevant thereto; PROVIDED THAT the Custodian shall be entitled
-------------
to reverse any credit (in whole or in part) made in respect of that Assured
Payment if the Custodian fails to receive the full amount corresponding to
such Assured Payment within a reasonable time, as determined by the Custodian
in its absolute discretion, after the relevant Assured Payment Date, for any
reason whatsoever other than as a result of the negligence or willful default
of the Custodian.
The Assured Income Payment Service shall be provided by the Custodian
in accordance with the Assured Income Payment Standards.
10. WITHDRAWAL AND DELIVERY
-----------------------
Subject to the terms of this Agreement, the Client may at any time
demand withdrawal of all or any part of the Property in the Custody Account
and/or the Custody Cash Account. Delivery of any Property will be made
without undue delay at the expense of the Client at such location as the
parties hereto may agree; PROVIDED THAT if the Custodian has effected any
--------------
transaction on behalf of the Client the settlement of which is likely to
occur after a withdrawal pursuant to this Section 10, then the Custodian
shall be entitled in its absolute discretion to close out or complete such
transaction and to retain sufficient funds from the Property for that purpose.
11. ACCESS AND RECORDS
------------------
(A) Access to the Custodian's Records. Except as otherwise provided in
-----------------------------------
this Agreement, during the Custodian's regular business hours and upon
receipt of reasonable notice from the Client, any officer or employee of the
Client, any independent public accountant(s) selected by the Client and any
person designated by any regulatory authority having jurisdiction over the
Client shall be entitled to examine on the Custodian's premises Property held
by the Custodian and the Custodian's records regarding Property deposited
with entities authorized to hold Property in accordance with Section 12
hereof, but only upon the Client's furnishing the Custodian with Instructions
to that effect; PROVIDED THAT such examination shall be consistent with the
-------------
Custodian's obligations of confidentiality to other parties.
(B) Access to Third Party Records. The Custodian shall also, subject to
------------------------------
restrictions under applicable laws and regulations, use its best efforts to
obtain from any entity with which the Custodian maintains the physical
possession or book-entry record of any of the Property in the Custody Account
or the Custody Cash Account such records as may be required by the Client or
its agents.
12. USE OF AGENTS
-------------
(A) The Custodian is authorized subject to any relevant Rules, to appoint
agents (each an "agent", which term includes, without limitation, service
providers and Subcustodians, but not Clearance Systems, and which agents may
be a member or members of the Citicorp Organization) and to participate in
Clearance Systems, whether in its own name or that of the Client, and whether
by participation as a member, sponsor or settlement bank within the Clearance
System, to perform any of the duties of the Custodian under this Agreement.
The Custodian may delegate to any such agent or Clearance System any of its
functions under this Agreement, including, without limitation, the collection
of any payment or payments, whether of an income or a capital nature, due on
the Property.
(B) In the selection and use of such agents and participation in such
Clearance Systems, the Custodian shall comply with any relevant Rules, and
shall be responsible only for the negligence in the selection of such agents
and Clearance Systems and shall use reasonable care, prudence and diligence
in such selection and use, but shall otherwise have no responsibility for the
performance by such agents or Clearance System of any of the duties delegated
to them under this Agreement; notwithstanding the foregoing, the Custodian
shall be responsible for the negligence, fraud or willful default of any
Subcustodian that is a Branch or subsidiary of Citibank, N.A., or any
Subcustodian or agent appointed to safekeep property in the United States
(other than a Clearance System) including without limitation, the failure of
any such Subcustodian to exercise reasonable care, prudence and diligence in
the performance of the service for which it was appointed, and shall have the
same level of responsibility to the Client for any nominee company controlled
by the Custodian or by any of the Custodian's affiliated companies as the
Custodian has for itself, and shall take all action necessary on behalf of
the Client to obtain recoveries claimed by Client.
(C) Subject to any relevant Rules and regulations, the Property may be
deposited with any Subcustodian deemed appropriate by the Custodian or in any
Clearance System deemed appropriate by the Custodian or a Subcustodian, as
the case may be; provided that Property shall not be held outside of the
United States unless (i) the Client has identified that it is an investment
for which the primary market is outside the United States or cash and cash
equivalents and (ii) deposited in an Eligible Foreign Custodian approved by
the Custodian as the Client's Foreign Custody Manager pursuant to Rule 17f-5
under the 1940 Act or an Eligible Securities Depository (as defined in Rule
17f-7 under the 1940 Act). Property held in any Clearance System shall be
subject to the rules or operating procedures of such Clearance System,
including rules regarding supervision or termination of membership of such
Clearance System, and such further information provided by the Custodian to
the Client, or acknowledgments or agreements which may be required from the
Client, for the purposes of this Section 12(C) in connection with use of a
Clearance System from time to time. The Custodian will direct each
Subcustodian and Clearance System to separately identify on its books
Securities held by it pursuant to this Agreement as being held for the
account of the Custodian's customers. The Custodian will direct each
Subcustodian and Clearance System to segregate any such Securities held by
such entity from the assets of the Custodian and such entity. The Custodian
shall take all reasonable steps to insure that Securities are separately
identified and segregated.
The Client is hereby advised that, where the Custodian arranges for any
Property to be held overseas, there may be different settlement, legal and
regulatory requirements in overseas jurisdictions from those applying in the
United States, together with different practices for the separate
identification of the Client's Property.
13. CITICORP ORGANIZATION INVOLVEMENT
---------------------------------
(A) To the extent permitted by applicable law, the Client hereby authorizes
the Custodian without the need for the Custodian to obtain the Client's prior
consent:
(i) when acting on Instructions to purchase and/or sell Property
from, to or through itself or any other member of the Citicorp
Organization and from and/or to any other customer of the
Custodian or any other member of the Citicorp Organization; and
(ii) to obtain and keep, without being liable to account to the Client, any
commission payable by any third party or any other member of the
Citicorp Organization in connection with dealings arising out of
or in connection with the Custody Account and/or the Custody Cash
Account, but not to exceed usual and customary commissions.
(B) The Client agrees and understands that if in accordance with
Instructions, an investment is made in any property, held, issued or managed
by any member of the Citicorp Organization, then such member of the Citicorp
Organization may retain a usual and customary profit arising therefrom (in
addition to the charges, commissions and fees payable by the Client under
this Agreement) without being liable to account to the Client for such profit.
(C) The Client agrees and understands that (i) the Custodian and other
members of the Citicorp Organization may have banking or other business
relationships with issuers of Securities held in the Custody Account or
Securities purchased and sold for the Custody Account, and (ii) the Custodian
shall not have any obligations to the Client as a result of such
relationships.
14. SCOPE OF RESPONSIBILITY
-----------------------
(A) Subject to the terms hereof, the Custodian shall use all reasonable
care in the performance of its duties under this Agreement and will exercise
the due care of a professional custodian for hire with respect to the
Property in its possession or control. The Custodian will not be responsible
for any loss or damage suffered by the Client as a result of the Custodian
performing such duties unless the loss or damage results from the Custodian's
negligence, willful misconduct or fraud or the negligence, willful misconduct
or fraud of its nominees or any branch or subsidiary (or subcustodian or
agent appointed to safekeep Property in the United States, other than a
Clearance System); in the event of such negligence or willful misconduct the
liability of the Custodian in connection with the loss or damage will not
exceed (i) the lesser of the current replacement cost of any Securities or
the market value of the Securities to which such loss or damage relates at
the time the Client reasonably should have been aware of such negligence or
willful misconduct, plus (ii) compensatory interest up to that time at the
rate applicable to the base currency of the Custody Cash Account. Under no
circumstances will the Custodian be liable to the Client for consequential
loss or damage, even if advised of the possibility of such loss or damage.
(B) The Custodian is not obliged to maintain any insurance on the Property
held under the terms of this Agreement.
(C) In the event that any law, regulation, decree, order or government act,
custom, procedure or practice to which the Custodian, or any Subcustodian or
Clearance System is subject, or to which the Property is subject, prevents or
limits the performance of the duties and obligations of the Custodian, or any
Subcustodian or Clearance System then, upon notice thereof to the Client only
to the extent so limited, until such time as the Custodian, Subcustodian or
Clearance System is again able to perform such duties and obligations
hereunder, such duties and obligations of the Custodian, Subcustodian or
Clearance System shall be suspended. For purpose of this Section 14 (C)
customs, practices or procedures means such matters affecting settlement of
securities transactions and the safekeeping of assets as the Custodian as a
foreign custody manager would be required to consider in determining that
assets maintained in a custody arrangement in a country provide reasonable
care and any change in such as would require the foreign custody manager to
advise the Client.
(D) Neither the Custodian nor any member of the Citicorp Organization shall
be responsible for any loss or damage, or failure to comply or delay in
complying with any duty or obligation, under or pursuant to this Agreement
arising as a direct or indirect result of any reason, cause or contingency
beyond its reasonable control, including (without limitation) natural
disasters, nationalization, currency restrictions, act of war, act of
terrorism, act of God, postal or other strikes or industrial actions, or the
failure, suspension or disruption of any relevant stock exchange, Clearance
System or market.
(E) The Custodian does not warrant or guarantee the authenticity or
validity of any Security or other Property received by the Custodian, or any
other entity authorized to hold Property under this Agreement. If the
Custodian becomes aware of any defect in title or forgery of any Property,
the Custodian shall promptly notify the Client.
(F) The Client shall be responsible for all filings, tax returns and
reports on any transactions undertaken pursuant to this Agreement, or in
respect of the Property or collections relating to the Property as may be
requested by any relevant authority, whether governmental or otherwise, and
for the payment of all unpaid calls, Taxes (including without limitation any
value added tax), imposts, levies or duties due on or with respect to any
principal, interest or other collections, or any other liability or payment
arising out of or in connection with the Property, and in so far as the
Custodian is under any obligation (whether of a governmental nature or
otherwise) to pay the same on behalf of the Client it may do so out of any
Property held by the Custodian pursuant to the terms of this Agreement.
(G) The Custodian is not acting under this Agreement as an investment
manager, nor as an investment, legal or tax adviser to the Client and the
Custodian's duty is solely to act as a custodian in accordance with the terms
of this Agreement.
(H) Nothing herein shall obligate the Custodian to perform any obligation
or to allow, take or omit taking any action which will breach any relevant
Rules, or any law, rule, regulation or practice of any relevant government,
stock exchange, Clearance System, self-regulatory organization or market.
(I) The Custodian may at any time suspend or terminate its participation
and holding of assets in a Clearance System, and will give reasonable notice
to the Client of any such action. In such case, or in the event of
suspension as contemplated in Section 14(C) above, the Custodian may arrange
for the relevant Securities to be held in certificate form.
(J) The Custodian shall not be responsible for the acts or omissions,
default or insolvency of any broker, counterparty, issuer of Securities or,
except as provided in Section 12(B), Subcustodian, agent or Clearance System,
provided however that the Custodian shall take all reasonable efforts to
recover amounts due from any such broker, counterparty or issuer.
(K) The Custodian shall not be responsible for the accuracy, content or
translation of any notice, circular, report, announcement or other material
forwarded to the Client.
(L) The Custodian shall only have such duties and responsibilities as are
specifically set forth or referred to in this Agreement, and no covenant or
obligation shall be implied in this Agreement against the Custodian.
(M) The Custodian agrees to cooperate with the Client to the extent
reasonably possible to insure the Custodian's actions and the holding of
Property hereunder are consistent with Rule 17f-4 and Rule 17f-5 under the
1940 Act and 17f-7 under the 1940 Act; provided however, in performing its
-
obligations with respect to this Section 14(M), and Section 6(A)(xii) of this
Agreement, the Custodian may obtain information from sources the Custodian
believes to be reliable, but the Custodian does not warrant the completeness
or accuracy of any such information. Notwithstanding that the Custodian is
not obligated hereunder to make any determination regarding whether Property
held by the Custodian in any Eligible Securities Depository, as defined in
Rule 17f-7 under the 1940 Act, will be subject to reasonable care pursuant to
Rule 17f-5 under the 1940 Act, the Custodian will provide an analysis of the
custody risks associated with maintaining assets with such Eligible
Securities Depository and will monitor such risks on an ongoing basis and
promptly notify the Client of any material change in these risks. In
performing its responsibilities hereunder, the Custodian shall exercise
reasonable care, prudence and diligence.
(N) The Custodian agrees that it will at all times be bound by the
Instructions and entitlement orders from the Client and shall not permit,
honor or act upon any prior, equal or contemporaneous Claim to or
instructions or orders of any kind with respect to Property by or from any
other Person, and shall keep all Property deposited with the Custodian at all
times free from all security interests, charges, claims, mortgages, pledges
or other liens, restrictions or encumbrances other than those arising in
connection with settlement of transactions pursuant to this Agreement and
other charges and payments to Custodian as permitted by this Agreement.
15. LITIGATION; INDEMNITY
---------------------
(A) The Custodian or any of its agents, as the case may be, may (but
without being under any duty or obligation to) institute or defend legal
proceedings, or take any other action arising out of or in connection with
the Property and the Client shall indemnify the Custodian or agent against
any costs and expenses, including without limitation any reasonable
attorneys' fees and disbursements, arising from such proceedings or other
action and make available to the Custodian such security in respect of such
costs and expenses as the Custodian or agent in its absolute discretion deems
necessary or appropriate.
(B) In the event the Custodian does not institute or defend legal
proceedings, or take any other action arising out of or in connection
with the Property, the Custodian hereby agrees that the Client shall,
to the extent of any loss of the Client's interest in the Property and
to the extent permitted by applicable law and not prohibited by
contract, be subrogated to all of the rights of recovery of the
Custodian therefor against any third party person or entity; PROVIDED
-----------
THAT nothing herein shall be interpreted as granting the Client any
------
rights to bring any direct action under any insurance policy issued in
favor of the Custodian or as limiting the Custodian's right to bring
any action against any such third party for any damages suffered by the
Custodian. Notwithstanding any other provision hereof, in no event
shall the Custodian be obliged to bring suit in its own name or be
obliged to allow suit to be brought in its name except to the extent
necessary to be entitled to seek relief. Notwithstanding anything
herein to the contrary, in the event applicable law or contract
prohibit subrogation, the Custodian shall institute or defend
litigation at the request and cost of the Client. Subject to the terms
of this Section 15(B) and to the extent permitted by law, the Custodian
shall execute and deliver any and all such instruments and documents
which the Client may reasonably request and take such other actions as
reasonably necessary or appropriate to assist the Client in the
exercise of such rights of recovery and to enable the Client to recover
against any and all such third party persons or entities. The Client
shall reimburse the Custodian for any reasonable out-of-pocket costs
incurred in connection with the actions contemplated by this Section
15(B).
(C) The Client agrees to indemnify the Custodian and to defend and
hold the Custodian harmless against all losses, liabilities, claims,
expenses and Taxes, including any reasonable legal fees and disbursements,
(each referred to as a "LOSS") arising directly or indirectly:
(i) from the fact that the Property is registered in the name of or
held by the Custodian or any nominee or agent of the Custodian or
any Clearance System;
(ii) without limiting the generality of Section 15(C)(i), from any act
which the Custodian or any nominee or agent performs or permits
(including the provision of any overdraft or other financial
accommodation which arises on the books of the Custodian, whether
on an advised or unadvised basis) in relation to the Property
pursuant to and in accordance with this Agreement or any
Instructions;
(iii) from the Custodian or any such nominee, agent or Clearance System
carrying out any Instructions pursuant to the terms of this
Agreement, including, without limitation, Instructions
transmitted orally, by telephone, telex, facsimile transmission
or any other means agreed by the Client and the Custodian from
time to time or otherwise;
(iv) from any reclaim or refund of Taxes effected by the Custodian or
any agent for the Client; and
PROVIDED THAT the Custodian shall not be indemnified against or held harmless
-------------
from any liability arising out of the Custodian's negligence, fraud or
willful default.
(D) The disclosure by the Client to the Custodian that the Client has
entered into this Agreement as the agent or representative of another person
shall not prevent the Custodian from being entitled to treat the Client as
incurring all obligations as principal under this Agreement.
(E) The Custodian shall give notice of any Loss in respect of which the
Client is obliged to provide indemnification pursuant to this Agreement.
Such notice shall describe the Loss in reasonable detail, and shall indicate
the amount (estimated, if necessary, and to the extent feasible) of the Loss
that has been or may be suffered by Custodian.
16. SET-OFF
-------
In addition to any other remedies available to the Custodian under
applicable law, the Custodian may, for cash settlement purposes only, without
prior notice to the Client, set off any payment obligation owed to it by the
Client against any payment obligation owed by it to the Client regardless of
the place of payment or currency of either obligation (and for such purposes
may make any currency conversion necessary).
17. FEES AND EXPENSES
-----------------
Without prejudice to any of its liabilities and obligations under this
Agreement, the Client agrees to pay to the Custodian from time to time such
fees and commissions for its services pursuant to this Agreement as
determined in accordance with the terms of the Fee Agreement, together with
any applicable taxes or levies, including, without limitation, all those
items referred to in Section 8(ii) hereof. The Custodian is further
authorized to debit upon prior notice and consent of the Client (as well
after as before the date of any termination pursuant to Section 19 hereof)
any account of the Client with the Custodian, including, without limitation,
the Custody Cash Account, for any amount owing to the Custodian from time to
time under this Agreement.
18. TAX STATUS/WITHHOLDING TAXES
----------------------------
(A) The Client will provide the Custodian with information as to its tax
status as reasonably requested by the Custodian from time to time.
(B) The Client may be required from time to time to file such proof of
taxpayer status or residence, to execute such certificates and to make such
representations and warranties, or to provide any other information or
documents in respect of the Property, as the Custodian or any of its agents
may deem necessary or proper to fulfill the obligations of the Custodian or
its agents under applicable law. The Client shall provide the Custodian or
its agents, as appropriate, in a timely manner, with copies, or originals if
necessary and appropriate, of any such proofs of residence, taxpayer status
or identity, beneficial ownership of Property and any other information or
documents which the Custodian or its agents may reasonably request.
(C) If any Taxes shall become payable with respect to any payment due to
the Client, such Taxes may be withheld from such payment in accordance with
applicable law. The Custodian and any agents may withhold any interest, any
dividends or other distributions or securities receivable in respect of
Securities, proceeds from the sale or distribution of Securities
("Payments"), or with prior notice to and consent of Client may sell for the
account of the Client any part thereof or all of the Securities, and may
apply such Payment and/or cash from the Custody Cash Account in satisfaction
of such Taxes, the Client remaining liable for any deficiency. If any Taxes
shall become payable with respect to any payment made to the Client by the
Custodian or its agents in a prior year, the Custodian or its agents may
withhold Payments in satisfaction of such prior year's Taxes.
(D) In the event the Client requests that the Custodian provide tax relief
services and the Custodian agrees to provide such services, the Custodian or
any of its agents, shall apply for appropriate tax relief (either by way of
reduced tax rates at the time of an income payment or retrospective tax
reclaims in certain markets as agreed from time to time); PROVIDED THAT the
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Client provides to the Custodian such documentation and information as is
necessary to secure such tax relief. Custodian shall advise Client of the
necessary documentation. In no event shall the Custodian or any of its
agents be responsible for the difference between the statutory rate of
withholding and the treaty rate of withholding if the Custodian or any of its
agents are unable to secure tax relief.
19. TERMINATION
-----------
(A) Either of the parties hereto may terminate this Agreement by giving not
less than 60 days' prior written notice to the other party; PROVIDED THAT
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within 60 days of such notice, the Client shall provide the Custodian with
Instructions specifying the person to whom the Custodian shall deliver the
Property in the Custody Account and Custody Cash Accounts; PROVIDED FURTHER
------------------
THAT if the Custodian has effected any transaction on behalf of the Client
----
the settlement of which is likely to extend beyond the expiration of such
notice, then the Custodian shall be entitled in its absolute discretion to
close out or complete such transaction and to retain sufficient funds from
the Property for that purpose. If within 60 days following termination, the
Client fails to give the Custodian Instructions specifying the person to whom
the Custodian shall deliver the Property in the Custody Account and Custody
Cash Account, the Custodian shall deliver the Property to the Client at its
address set out above.
(B) The rights and obligations contained in Sections 15, 16, 17 and 18 of
this Agreement shall survive the termination of this Agreement.
20. ASSIGNMENT
----------
This Agreement shall bind and enure for the benefit of the parties
hereto and their respective successors and permitted assigns, and the Client
shall not assign, transfer or charge all or any rights or benefits hereunder
without the written consent of the Custodian. The Custodian may not assign,
transfer or charge all or any of its rights or benefits hereunder without the
written consent of the Client; PROVIDED HOWEVER that this Agreement may be
-----------------
assigned by the Custodian to another member of the Citicorp Organization with
equal or greater shareholders equity with prior written notice to the Client,
and such assignee shall, without the execution or filing of any consents or
other documents, succeed to and be substituted for the Custodian with like
effect as though such assignee had been originally named as the Custodian
hereunder. Any purported assignment, transfer or charge made in
contravention of this Section shall be null and void and of no effect
whatsoever.
21. INTENTIONALLY DELETED.
----------------------
22. DISCLOSURE
----------
(A) The Client agrees and understands that the Custodian or its agents may
disclose information regarding the Custody Account and/or the Custody Cash
Account if required to do so (i) to establish under the laws of any relevant
jurisdiction the nominee (or similar) status of the Custodian or its agents
with respect to Property in the Custody Account and/or Custody Cash Account
for the purpose of performing or discharging its duties and obligations under
this Agreement, (ii) to enable auditors to perform auditing services, (iii)
to make the required tax certifications in the relevant jurisdictions, (iv)
by any applicable law, statute or regulation or court order or similar
process in any relevant jurisdiction, (v) by order of an authority having
power to require disclosure by the Custodian or its agents within the
jurisdiction of such authority, whether of a governmental nature or
otherwise, or (vi) where required by the operating rules of any relevant
Clearance System.
(B) The Client hereby authorizes (i) the collection, storage and processing
of any information relating to the Client by the Custodian and the Branches,
subsidiaries, affiliates and agents of, or Clearance Systems used by,
Citibank, N.A.; and (ii) the transfer of any information relating to the
Client to and between the Branches, subsidiaries, affiliates and agents of,
or Clearance Systems used by, Citibank, N.A. and third parties selected by
any of them, wherever situated, for confidential use in connection with the
provision of services to the Client, and further acknowledges that any such
Branch, subsidiary, affiliate, agent, third party or Clearance System shall
be entitled to transfer any such information as required by any law, court,
legal process or as requested by any authority in accordance with which it is
required to act, as it shall reasonably determine. Custodian shall advise
Client prior to any such disclosure.
(C) The Client agrees that the terms of this Agreement shall be kept
strictly confidential and no printed materials or other matter in any
language (including without limitation, prospectuses, statements of
additional information, notices to shareholders, annual reports and
promotional materials) which mention Citicorp, Citibank, N.A. or the
Custodian's name, or the rights, powers or duties of the Custodian, shall be
issued by the Client or on the Client's behalf unless Citibank, N.A. and/or
the Custodian (as applicable) shall first have given its specific written
consent thereto; PROVIDED THAT no prior consent shall be required if the only
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reference to the Custodian's name is in identifying the Custodian as one of
the Client's custodians and/ or describing Custodian's responsibilities for
Client per the terms of this Agreement.
23. NOTICES
-------
All notices and communications to be given by one party to the other
under this Agreement shall be in writing in the English language and (except
for notices, reports and information from the Custodian, and Instructions
given by electronic means) shall be made either by telex or facsimile, other
electronic means agreed to by the parties or by letter addressed to the party
concerned at the addresses set out above (or at such other addresses as may
be notified in writing by either party to the other from time to time). Any
such notice or communication hereunder shall be effective upon actual receipt.
24. GOVERNING LAW AND JURISDICTION
------------------------------
(A) This Agreement shall be governed by and construed in accordance with
the internal laws (and not the laws of conflict) of the state of New York.
The Client agrees for the benefit of the Custodian and, without prejudice to
the right of the Custodian to take any proceedings in relation hereto before
any other court of competent jurisdiction, that the courts of the State of
New York shall have jurisdiction to hear and determine any suit, action or
proceeding, and to settle any disputes, which may arise out of or in
connection with this Agreement and, for such purposes, irrevocably submits to
the non-exclusive jurisdiction of such courts.
(B) Each party hereto waives any objection it may have at any time to the
laying of venue of any actions or proceedings brought in a court of the State
of New York, waives any claim that such actions or proceedings have been
brought in an inconvenient forum and further waives the right to object that
such court does not have jurisdiction over such party.
(C) The Client irrevocably waives, to the fullest extent permitted by
applicable law, with respect to itself and its revenues and assets
(irrespective of their use or intended use), all immunity on the grounds of
sovereignty or similar grounds from (i) suit, (ii) jurisdiction of any court,
(iii) relief by way of injunction, order for specific performance or for
recovery of property, (iv) attachment of its assets (whether before or after
judgment), and (v) execution or enforcement of any judgment to which it or
its revenues or assets might otherwise be entitled in any actions or
proceedings in such courts, and irrevocably agrees, to the fullest extent
permitted by applicable law, that it will not claim such immunity in any such
actions or proceedings.
(D) The Client hereby understands and agrees that the opening of, the
holding of all or any part of the Property in, and the delivery of any
Securities and other Property to or from, the Custody Account and Custody
Cash Account and the performance of any activities contemplated in this
Agreement by the Custodian, including acting on any Instructions, are subject
to the relevant local laws, regulations, decrees, orders, government acts,
customs, procedures and practices (i) to which the Custodian, or any
Subcustodian or Clearance System, is subject and (ii) as exist in the country
in which the Property is held.
25. MISCELLANEOUS
-------------
(A) This Agreement shall not be amended except by a written agreement and
any purported amendment made in contravention of this Section shall be null
and void and of no effect whatsoever.
(B) This Agreement and the Amended and Restated Foreign Custody Manager
Agreement shall constitute the entire agreement between the Client and the
Custodian and, unless otherwise expressly agreed in writing, shall supersede,
amend, restate and replace all prior agreements relating to global custodial
services, written or oral, between the parties hereto; provided, however,
that the Pooled Repurchase Custody Agreement dated September 27, 1993 as
amended by the First Amendment thereto dated June, 1994 between the Custodian
and certain Xxxxxxxxxxx and Centennial Funds including the Client shall
remain in full force and effect, and in the event of any inconsistencies
between the provisions of this Agreement and the Pooled Repurchase Custody
Agreement, the latter agreement shall control.
(C) The parties hereto agree that (i) the rights, powers, privileges and
remedies stated in this Agreement are cumulative and not exclusive of any
rights, powers, privileges and remedies provided by law, unless specifically
waived, and (ii) any failure or delay in exercising any right power,
privilege or remedy will not be deemed to constitute a waiver thereof and a
single or partial exercise of any right, power, privilege or remedy will not
preclude any subsequent or further exercise of that or any other right,
power, privilege or remedy.
(D) In the event that any provision of this Agreement, or the application
thereof to any person or circumstances, shall be determined by a court of
proper jurisdiction to be invalid or unenforceable to any extent, the
remaining provisions of this Agreement, and the application of such
provisions to persons or circumstances other than those as to which it is
held invalid or unenforceable, shall be unaffected thereby and such
provisions shall be valid and enforced to the fullest extent permitted by law
in such jurisdiction.
(E) Titles to Sections of this Agreement are included for convenience of
reference only and shall be disregarded in construing the language contained
in this Agreement.
(F) This Agreement may be executed in several counterparts, each of which
shall be an original, but all of which together shall constitute one and the
same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized.
CITIBANK, N.A., New York Office OPPENHEIMERFUNDS, INC.
By: ________________________
------------------------
By: _____________________
Xxxxxx Xxxxxxxx Xxxxxxxxx X. Xxxx, Vice
President
Name: Xxxxxx Fauquier_________ on behalf of each investment company
---------------
identified on Appendix A
Title: Vice President attached hereto individually and severally, and
-----------------
not jointly and severally
APPENDIX A
FUND ACCOUNT # ACCOUNT NAME
---- --------- ------------
150 099920 Centennial Money Market Trust
160 099862 Centennial Tax Exempt Trust
170 099975 Centennial Government Trust
180 845873 Centennial California Tax Exempt Trust
200 345246 Xxxxxxxxxxx Money Market Fund
205 Xxxxxxxxxxx Series Fund, Inc. for the account of
Xxxxxxxxxxx Disciplined Allocation Fund
211 Xxxxxxxxxxx Trinity Core Fund
215 Xxxxxxxxxxx Global Growth & Income Fund
220 847143 Xxxxxxxxxxx U.S. Government Trust
225 847940 Xxxxxxxxxxx Quest Value
236 847941 Xxxxxxxxxxx Quest Opportunity Value
251 847942 Xxxxxxxxxxx Quest Small Cap Value
254 847945 Xxxxxxxxxxx Quest Global Value
257 847943 Xxxxxxxxxxx Quest Balanced Value Fund
261 Xxxxxxxxxxx Europe Fund
270 Xxxxxxxxxxx Xxxxxx Xxxx
000 Xxxxxxxxxxx Xxxxxxx Income Fund
310 347080 Xxxxxxxxxxx Municipal Bond Fund
345 Bond Fund Series for the account of
Xxxxxxxxxxx Convertible Securities Fund
351 849393 Xxxxxxxxxxx Legacy Program/Growth Pool
352 849394 Xxxxxxxxxxx Legacy Program/Income Pool
353 849396 Xxxxxxxxxxx Legacy Program/Money Pool
355 847622 Limited Term New York Municipal Fund
365 847621 Rochester Fund Municipals
360 847141 Xxxxxxxxxxx AMT-Free New York Municipals
(formerly Xxxxxxxxxxx New York Municipal Fund)
375 Xxxxxxxxxxx Series Fund, Inc. for the account of
Xxxxxxxxxxx Value Fund
381 Xxxxxxxxxxx Trinity Value Fund
395 847331 Xxxxxxxxxxx New Jersey Municipal Fund
410 Xxxxxxxxxxx Gold & Special Minerals Fund
416 849286 Xxxxxxxxxxx Core Plus Fund
420 Xxxxxxxxxxx Total Return Fund, Inc.
500 Xxxxxxxxxxx Discovery Fund
505 Xxxxxxxxxxx Select Managers for the account of
Mercury Advisors S&P 500 Index Fund
510 Xxxxxxxxxxx Select Managers for the account of
Mercury Advisors Focus Growth Fund
515 Xxxxxxxxxxx Select Managers for the account of
QM Active Balanced Fund
Xxxxxxxxxxx Select Managers for the account of
520 Xxxxxxxx Growth Fund
525 Xxxxxxxxxxx Select Managers for the account of
Salomon Brothers Capital Fund
530 Xxxxxxxxxxx Select Managers for the account of
Gartmore Millenium Growth Fund II
535 Xxxxxxxxxxx Total Return Bond Fund
600 Xxxxxxxxxxx Multi Cap Value Fund
625 Xxxxxxxxxxx International Value Trust for the
account of
Xxxxxxxxxxx International Value Fund
635 Xxxxxxxxxxx International Large Cap-Core Trust for
the account of
Xxxxxxxxxxx International Large Cap-Core Fund
000 Xxxxxxxxxxx Xxxx Xxxxxx Funds, Inc. for the
account of
Xxxxxxxxxxx Xxxx Xxxxxx Xxxx
000 Xxxxxxxxxxx Emerging Growth Fund
000 Xxxxxxxxxxx Xxxx Xxxxxx Opportunity Fund
740 845861 Xxxxxxxxxxx Pennsylvania Municipal Fund
745 Xxxxxxxxxxx XxxXxx Fund
755 849103 Xxxxxxxxxxx Capital Preservation Fund
760 845764 Xxxxxxxxxxx Xxxx Xxxxxxxx
000 Xxxxxxxxxxx Xxxxxxxx Technologies Fund
775 Xxxxxxxxxxx Trinity Large Cap Growth Fund
780 845766 Centennial New York Tax Exempt Trust
790 845767 Xxxxxxxxxxx California Municipal Fund
795 847279 Xxxxxxxxxxx Rochester National Municipals
(Formerly Xxxxxxxxxxx Florida Municipal Fund)
855 846077 Xxxxxxxxxxx Limited Term Government Fund
860 846078 Xxxxxxxxxxx Intermediate Municipal Fund
870 846080 Centennial America Fund
000 Xxxxxxxxxxx Xxxxxxxxxx Fund
