EXHIBIT (2)(j)(1)
Effective as of
July 23, 1993
AMENDED AND RESTATED
CUSTODIAN AGREEMENT
Between
THE FUTURE GERMANY FUND, INC.
and
INVESTORS BANK & TRUST COMPANY
TABLE OF CONTENTS
Page
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1. Bank Appointed Custodian........................................ 1
2. Definitions..................................................... 1
2.1 Authorized Person...................................... 1
2.2 Security............................................... 1
2.3 Portfolio Security..................................... 2
2.4 Officers' Certificate.................................. 2
2.5 Book-Entry System...................................... 2
2.6 Depository............................................. 2
2.7 Proper Instructions.................................... 2
2.8 Foreign Securities..................................... 2
2.9 Eligible Foreign Custodian............................. 3
3. Separate Accounts............................................... 3
4. Certification as to Authorized Persons.......................... 3
5. Custody of Cash................................................. 3
5.1 Purchase of Securities................................. 3
5.2 [RESERVED]............................................. 3
5.3 Distributions and Expenses of Fund..................... 4
5.4 Payment in Respect of Securities....................... 4
5.5 Repayment of Loans..................................... 4
5.6 Repayment of Cash...................................... 4
5.7 Foreign Exchange Transactions.......................... 4
5.8 Other Authorized Payments.............................. 4
5.9 Termination............................................ 4
6. Securities...................................................... 5
6.1 Segregation and Registration........................... 5
6.2 Voting and Proxies..................................... 5
6.3 Book-Entry System...................................... 5
6.4 Use of a Depository.................................... 7
6.5 Use of Book-Entry System for Commercial Paper.......... 8
6.6 [RESERVED]............................................. 9
6.7 Eurodollar CDs......................................... 9
6.8 Options and Futures Transactions....................... 9
6.9 Segregated Account..................................... 10
6.10 Interest Bearing Call or Time Deposits................. 12
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Page
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6.11 Transfer of Securities................................. 12
7. [RESERVED]...................................................... 14
8. Merger, Dissolution, etc. of Fund............................... 14
9. Actions of Bank Without Prior Authorization..................... 14
10. Collection; Defaults............................................ 15
11. Maintenance of Records; Accounting Services..................... 15
12. Fund Evaluation................................................. 16
13. Concerning the Bank............................................. 16
13.1 Performance of Duties; Standard of Care................ 16
13.2 Agents and Subcustodians............................... 18
13.3 Insurance.............................................. 18
13.4 Fees and Expenses of Bank.............................. 18
13.5 Advances by Bank....................................... 19
14. Termination..................................................... 19
15. Notices......................................................... 20
16. Amendments...................................................... 20
17. Parties......................................................... 20
18. Governing Law................................................... 21
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AMENDED AND RESTATED CUSTODIAN AGREEMENT
AGREEMENT made as of this 23rd day of July, 1993 between THE FUTURE
GERMANY FUND, INC., established under the laws of the State of Delaware (the
"Fund") and INVESTORS BANK & TRUST COMPANY (the "Bank") amending and restating
the agreement dated as of March 6, 1990.
The Fund, a closed-end management investment company, desires to place
and maintain all of its portfolio securities and cash in the custody of the
Bank. The Bank has at least the minimum qualifications required by Section
17(f)(1) of the Investment Company Act of 1940 (the "Act") to act as custodian
of the portfolio securities and cash of the Fund, and has indicated its
willingness to so act, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements contained herein, the parties hereto agree as follows:
1. Bank Appointed Custodian. The Fund hereby appoints the Bank as
custodian of its portfolio securities and cash delivered to the Bank as
hereinafter described and the Bank agrees to act as such upon the terms and
conditions hereinafter set forth.
2. Definitions. Whenever used herein, the terms listed below will
have the following meaning:
2.1 Authorized Person. Authorized Person will mean any of
the persons duly authorized to give Proper Instructions or otherwise act on
behalf of the Fund by appropriate resolution of its Board of Directors (the
"Board"), and set forth in a certificate as required by Section 4 hereof.
2.2 Security. The term security as used herein will have
the same meaning as when such term is used in the Securities Act of 1933 as
amended, including, without limitation, any note, stock, treasury stock, bond,
debenture, evidence of indebtedness, certificate of interest or participation in
any profit sharing agreement, collateral-trust certificate, preorganization
certificate or subscription, transferable share, investment contract,
voting-trust certificate, certificate of deposit for a security, fractional
undivided interest in oil, gas, or other mineral rights, any put, call,
straddle, option, or privilege on any security, certificate of deposit, or group
or index of securities (including any interest therein or based on the value
thereof) , or any put, call, straddle, option, or privilege entered into on a
national securities exchange relating to a foreign currency, or, in general, any
interest or instrument commonly known as a "security", or any certificate of
interest or participation in, temporary or interim certificate for, receipt for,
guarantee of, or warrant or right to subscribe to, or option contract to
purchase or sell any of the foregoing and futures, forward contracts and options
thereon.
2.3 Portfolio Security. Portfolio Security will mean any
security owned by the Fund.
2.4 Officers' Certificate. Officers' Certificate will
mean, unless otherwise indicated, any request, direction, instruction, or
certification in writing signed by any two Authorized Persons of the Fund.
2.5 Book-Entry System. Book-Entry System shall mean the
Federal Reserve-Treasury Department Book Entry System for United States
government, instrumentality and agency securities operated by the Federal
Reserve Bank, its successor or successors and its nominee or nominees.
2.6 Depository. Depository shall mean any clearing agency
registered with the Securities and Exchange Commission under Section 17A of the
Securities Exchange Act of 1934 which acts as a securities depository, and its
nominee or nominees.
2.7 Proper Instructions. Proper Instructions shall mean
(i) instructions regarding the purchase or sale of Portfolio Securities, and
payments and deliveries in connection therewith, given by an Authorized Person,
such instructions to be given in such form and manner as the Bank and the Fund
shall agree upon from time to time, and (ii) instructions (which may be
continuing instructions) regarding other matters signed or initialed by such one
or more Authorized Persons. Oral instructions will be considered Proper
Instructions if the Bank reasonably believes them to have been given by a person
authorized to give such instructions with respect to the transaction involved.
The Fund shall cause all oral instructions to be promptly confirmed in writing,
provided, however, that its failure to do so shall not be deemed to invalidate
or otherwise render ineffective such oral instructions. The Bank shall act upon
and comply with any subsequent Proper Instruction which modifies a prior
instruction and the sole obligation of the Bank with respect to any follow-up or
confirmatory instruction shall be to make reasonable efforts to detect any
discrepancy between the original instruction and such confirmation and to report
such discrepancy to the Fund. The Fund shall be responsible, at the Fund's
expense, for taking any action, including any reprocessing, necessary to correct
any such discrepancy or error, and to the extent such action requires the Bank
to act the Fund shall give the Bank specific Proper Instructions as to the
action required. Upon receipt of an Officers' Certificate as to the
authorization by the Board accompanied by a detailed description of procedures
approved by the Fund, Proper Instructions may include communication effected
directly between electro-mechanical or electronic devices provided that the
Board and the Bank are satisfied that such procedures afford adequate safeguards
for the Fund's assets.
2.8 Foreign Securities. Foreign Securities shall have the
meaning ascribed to the term in Rule l7f-5 of the Act.
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2.9 Eligible Foreign Custodian. Eligible Foreign
Custodian shall have the meaning ascribed to the term in Rule 17f-5 of the Act.
3. Separate Accounts. If the Fund has more than one series or
portfolio, the Bank will segregate the assets of each series or portfolio to
which this Agreement relates into a separate account for each such series or
portfolio containing the assets of such series or portfolio (and all investment
earnings thereon).
4. Certification as to Authorized Persons. The Secretary or
Assistant Secretary of the Fund will at all times maintain on file with the Bank
his certification to the Bank, in such form as may be acceptable to the Bank, of
(i) the names and signatures of the Authorized Persons and (ii) the names of the
members of the Board, it being understood that upon the occurrence of any change
in the information set forth in the most recent certification on file (including
without limitation any person named in the most recent certification who is no
longer an Authorized Person as designated therein), the Secretary or Assistant
Secretary of the Fund will sign a new or amended certification setting forth the
change and the new, additional or omitted names or signatures. The Bank will be
entitled to rely and act upon any Officers' Certificate or Proper Instructions
given to it by Authorized Persons named in the most recent certification.
5. Custody of Cash. As custodian for the Fund, the Bank will open
and maintain a separate account or accounts in the name of the Fund or in the
name of the Bank, as Custodian of the Fund, and will deposit to the account of
the Fund all of the cash of the Fund, except for cash held by a subcustodian
appointed pursuant to Section 13.2 hereof, including borrowed funds, delivered
to the Bank, subject only to draft or order by the Bank acting pursuant to the
terms of this Agreement. Upon receipt by the Bank of Proper Instructions (which
may be continuing instructions) requesting such payment, designating the payee
or the account or accounts to which the Bank will release funds for deposit, and
stating that it is for a purpose permitted under the terms of this Section 5,
specifying the applicable subsection, or describing such purpose with sufficient
particularity to permit the Bank to ascertain the applicable subsection, the
Bank will make payments of cash held for the accounts of the Fund, insofar as
funds are available for that purpose, only as permitted in subsections 5.1-5.9
below.
5.1 Purchase of Securities: upon the purchase of
securities for the Fund, against contemporaneous receipt of such securities by
the Bank registered in the name of the Fund or in the name of, or properly
endorsed and in form for transfer to, the Bank, or a nominee of the Bank, or
receipt for the account of the Bank pursuant to the provisions of Section 6
below, each such payment to be made at the purchase price shown on a broker's
confirmation (or transaction report in the case of Book Entry Paper) of purchase
of the securities received by the Bank before such payment is made, as confirmed
in the Proper Instructions received by the Bank before such payment is made;
5.2 [RESERVED]
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5.3 Distributions and Expenses of Fund: for the payment
on the account of the Fund of dividends or other distributions to shareholders
as may from time to time be declared by the Board, interest, taxes, management
or supervisory fees, fees of the Bank for its services hereunder and
reimbursement of the expenses and liabilities of the Bank as provided hereunder,
fees of any transfer agent, fees for legal, accounting, and auditing services,
or other operating expenses of the Fund;
5.4 Payment in Respect of Securities: for payments in
connection with the conversion, exchange or surrender of Portfolio Securities or
securities subscribed to by the Fund held by or to be delivered to the Bank;
5.5 Repayment of Loans: to repay loans of money made to
the Fund, but, in the case of final payment, only upon redelivery to the Bank of
any Portfolio Securities pledged or hypothecated therefor and upon surrender of
documents evidencing the loan;
5.6 Repayment of Cash: to repay the cash delivered to the
Fund for the purpose of collateralizing the obligation to return to the Fund
certificates borrowed from the Fund representing Portfolio Securities, but only
upon redelivery to the Bank of such borrowed Portfolio Securities;
5.7 Foreign Exchange Transactions: for payments in
connection with foreign exchange contracts or options to purchase and sell
foreign currencies for spot and future delivery which may be entered into by the
Bank on behalf of the Fund upon the receipt of Proper Instructions, such Proper
Instructions to specify the currency broker or banking institution (which may be
the Bank, or any other subcustodian or agent hereunder, acting as principal)
with which the contract or option is made, and the Bank shall have no duty with
respect to the selection of such currency brokers or banking institutions with
which the Fund deals or for their failure to comply with the terms of any
contract or option;
5.8 Other Authorized Payments: for other authorized
transactions of the Fund, or other obligations of the Fund incurred for proper
Fund purposes; provided that before making any such payment the Bank will also
receive a certified copy of a resolution of the Board signed by an Authorized
Person (other than the Person certifying such resolution) and certified by its
Secretary or Assistant Secretary, naming the person or persons to whom such
payment is to be made, and either describing the transaction for which payment
is to be made and declaring it to be an authorized transaction of the Fund, or
specifying the amount of the obligation for which payment is to be made, setting
forth the purpose for which such obligation was incurred and declaring such
purpose to be a proper corporate purpose; and
5.9 Termination: upon the termination of this Agreement
as hereinafter set forth pursuant to Section 8 and Section 14 of this Agreement.
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6. Securities.
6.1 Segregation and Registration. Except as otherwise
provided herein, and except for securities to be delivered to any subcustodian
appointed pursuant to Section 13.2 hereof, the Bank as custodian, will receive
and hold pursuant to the provisions hereof, in a separate account or accounts
and physically segregated at all times from those of other persons, any and all
Portfolio Securities which may now or hereafter be delivered to it by or for the
account of the Fund. All such Portfolio Securities will be held or disposed of
by the Bank for, and subject at all times to, the instructions of the Fund
pursuant to the terms of this Agreement. Subject to the specific provisions
herein relating to Portfolio Securities that are not physically held by the
Bank, the Bank will register all Portfolio Securities (unless otherwise directed
by Proper Instructions or an Officers' Certificate), in the name of a registered
nominee of the Bank as defined in the Internal Revenue Code and any Regulations
of the Treasury Department issued thereunder, and will execute and deliver all
such certificates in connection therewith as may be required by such laws or
regulations or under the laws of any state. The Bank will use its best efforts
to the end that the specific Portfolio Securities held by it hereunder will be
at all times identifiable.
The Fund will from time to time furnish to the Bank appropriate
instruments to enable it to hold or deliver in proper form for transfer, or to
register in the name of its registered nominee, any Portfolio Securities which
may from time to time be registered in the name of the Fund.
6.2 Voting and Proxies. Neither the Bank nor any nominee
of the Bank will vote any of the Portfolio Securities held hereunder, except in
accordance with Proper Instructions or an Officers' Certificate. The Bank will
execute and deliver, or cause to be executed and delivered, to the Fund all
notices, proxies and proxy soliciting materials with respect to such Securities,
such proxies to be executed by the registered holder of such Securities (if
registered otherwise than in the name of the Fund), but without indicating the
manner in which such proxies are to be voted.
6.3 Book-Entry System. Provided the Bank has received a
certified copy of a resolution of the Board specifically approving deposits of
Fund assets in the Book-Entry System, and the Bank has not received an Officer's
Certificate indicating that the Board has withdrawn its approval:
(a) The Bank may keep Portfolio Securities in the
Book-Entry System provided that such Portfolio Securities are
represented in an account ("Account") of the Bank (or its agent) in
such System which shall not include any assets of the Bank (or such
agent) other than assets held as a fiduciary, custodian, or otherwise
for customers.
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(b) The records of the Bank (and any such agent) with
respect to the Fund's participation in the Book-Entry System through
the Bank (or any such agent) will identify by book entry Portfolio
Securities which are included with other securities deposited in the
Account and shall at all times during the regular business hours of the
Bank (or such agent) be open for inspection by duly authorized
officers, employees or agents of the Fund. Where securities are
transferred to the Fund's account, the Bank shall also, by book entry
or otherwise, identify as belonging to the Fund a quantity of
securities in fungible bulk of securities (i) registered in the name of
the Bank or its nominee, or (ii) shown on the Bank's account on the
books of the Federal Reserve Bank.
(c) The Bank (or its agent) shall pay for Securities
purchased for the account of the Fund or shall pay cash collateral
against the return of Portfolio Securities loaned by the Fund upon (i)
receipt of advice from the Book-Entry System that such Securities have
been transferred to the Account, and (ii) the making of an entry on the
records of the Bank (or its agent) to reflect such payment and transfer
for the account of the Fund. The Bank (or its agent) shall transfer
Securities sold or loaned for the account of the Fund upon
(i) receipt of advice from the Book-Entry System
that payment for Securities sold or payment of the initial
cash collateral against the delivery of Securities loaned by
the Fund has been transferred to the Account, and
(ii) the making of an entry on the records of the
Bank (or its agent) to reflect such transfer and payment for
the account of the Fund. Copies of all advices from the
Book-Entry System of transfers of securities for the account
of the Fund shall identify the Fund, be maintained for the
Fund by the Bank and shall be provided to the Fund at its
request. The Bank shall send the Fund a confirmation, as
defined by Rule 17f-4 of the Act, of any transfers to or from
the Account.
(d) The Bank will promptly provide the Fund with any
report obtained by the Bank or its agent on the Book-Entry System's
accounting system, internal accounting control and procedures for
safeguarding securities deposited in the Book-Entry System.
(e) Anything to the contrary in this Agreement
notwithstanding, the Bank shall be liable to the Fund for any loss or
damage to the Fund resulting from use of the Book-Entry System by
reason of any negligence, willful misfeasance or misconduct of the Bank
or any of its agents or of any of its or their employees or from any
negligent failure by the Bank or any such agent of its duty to enforce
effectively such rights as it may have against the Book-Entry System;
at the election of the Fund, it shall be entitled to be subrogated for
the Bank in any claim
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against the Book-Entry System or any other person which the Bank or its
agent may have as a consequence of any such loss or damage if and to
the extent that the Fund has not been made whole for any loss or
damage.
6.4 Use of a Depository. Provided the Bank has received a
certified copy of a resolution of the Board specifically approving deposits in a
Depository and the Bank has not received an Officer's Certificate indicating
that the Board has withdrawn its approval:
(a) The Bank may use a Depository to hold, receive,
exchange, release, lend, deliver and otherwise deal with Portfolio
Securities, including stock dividends, rights and other items of like
nature, and to receive and remit to the Bank on behalf of the Fund all
income and other payments thereon and to take all steps necessary and
proper in connection with the collection thereof.
(b) Registration of Portfolio Securities may be made in
the name of any nominee or nominees used by such Depository.
(c) Payment for Securities purchased and sold may be made
through the clearing medium employed by such Depository for
transactions of participants acting through it. Upon any purchase of
Portfolio Securities, payment will be made only upon delivery of the
Securities to or for the account of the Fund and the Fund shall pay
cash collateral against the return of Portfolio Securities loaned by
the Fund only upon delivery of the Securities to or for the account of
the Fund; and upon any sale of Portfolio Securities, delivery of the
Securities will be made only against payment thereof or, in the event
Portfolio Securities are loaned, delivery of Securities will be made
only against receipt of the initial cash collateral to or for the
account of the Fund.
(d) The Bank shall be subject to the same liability and
duty to the Fund and its shareholders with respect to all securities of
the Fund, and all cash, stock dividends, rights and items of like
nature to which the Fund is entitled, held or received by a central
securities system as agent for the Bank, pursuant to the foregoing
authorization, as if the same were held or received by the Bank at its
own offices. In this connection, without limiting the foregoing duty or
liability, the Bank, without cost to the Fund, shall ensure that:
(i) The Depository obtains replacement of any
certificated Portfolio Security deposited with it in the event
such Security is lost, destroyed, wrongfully taken or
otherwise not available to be returned to the Bank upon its
request;
(ii) Any proxy materials received by a Depository
with respect to Portfolio Securities deposited with such
Depository are forwarded immediately to the Bank for prompt
transmittal to the Fund;
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(iii) Such Depository immediately forwards to the
Bank confirmation of any purchase or sale of Portfolio
Securities and of the appropriate book entry made by such
Depository to the Fund's account;
(iv) Such Depository prepares and delivers to the
Bank such records with respect to the performance of the
Bank's obligations and duties hereunder as may be necessary
for the Fund to comply with the recordkeeping requirements of
Section 31(a) of the Act and the Rules thereunder; and
(v) Such Depository delivers to the Bank and the
Fund all internal accounting control reports, whether or not
audited by an independent public accountant, as well as such
other reports as the Fund may reasonably request in order to
verify the Portfolio Securities held by such Depository.
6.5 Use of Book-Entry System for Commercial Paper.
Provided the Bank has received a certified copy of a resolution of the Board
specifically approving participation in a system maintained by the Bank for the
holding of commercial paper in book-entry form ("Book Entry Paper") and the Bank
has not received an Officer's Certificate indicating that the Board has
withdrawn such approval, upon receipt of Proper Instructions and upon receipt of
confirmation from an Issuer (as defined below) that the Fund has purchased such
Issuer's Book Entry Paper, the Bank shall issue and hold in book-entry form, on
behalf of the Fund, commercial paper issued by issuers with whom the Bank has
entered into a book-entry agreement (the "Issuers"). In maintaining its Book
Entry Paper System, the Bank agrees that:
(a) the Bank will maintain all Book Entry Paper held by
the Fund in an account of the Bank that includes only assets held by it
for customers;
(b) the records of the Bank with respect to the Fund's
purchase of Book Entry Paper through the Bank will identify, by book
entry, Commercial Paper belonging to the Fund which is included in the
Book Entry Paper System and shall at all times during the regular
business hours of the Bank be open for inspection by duly authorized
officers, employees or agents of the Fund.
(c) The Bank shall pay for Book Entry Paper purchased for
the account of the Fund upon contemporaneous (i) receipt of advice from
the Issuer that such sale of Book Entry Paper has been effected, and
(ii) the making of an entry on the records of the Bank to reflect such
payment and transfer for the account of the Fund.
(d) The Bank shall cancel such Book Entry Paper
obligation upon the maturity thereof upon contemporaneous (i) receipt
of advice that payment for such Book Entry Paper has been transferred
to the Fund, and (ii) the making of an
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entry on the records of the Bank to reflect such payment for the
account of the Fund.
(e) the Bank shall transmit to the Fund a transaction
journal confirming each transaction in Book Entry Paper for the account
of the Fund on the next business day following the transaction; and
(f) the Bank will send to the Fund such reports on its
system of internal accounting control with respect to the Book Entry
Paper System as the Fund may reasonably request from time to time.
6.6 [RESERVED]
6.7 Eurodollar CDs. Any Portfolio Securities which are
Eurodollar CDs may be physically held by the European branch of the U.S. banking
institution that is the issuer of such Eurodollar CD (a "European Branch"),
provided that such Securities are identified on the books of the Bank as
belonging to the Fund and that the books of the Bank identify the European
Branch holding such Securities. Notwithstanding any other provision of this
Agreement to the contrary, except as stated in the first sentence of this
subsection 6.7, the Bank shall be under no other duty with respect to such
Eurodollar CDS belonging to the Fund, and shall have no liability to the Fund or
its shareholders with respect to the actions, inactions, whether negligent or
otherwise of such European Branch in connection with such Eurodollar CDs, except
for any loss or damage to the Fund resulting from the Bank's own negligence,
wilful misfeasance or misconduct in the performance of its duties or negligent
disregard of its obligations and duties hereunder.
6.8 Options and Futures Transactions.
(a) Puts and Calls Traded on Securities Exchanges, NASDAQ
or Over-the-Counter.
1. The Bank shall take action as to put options
("puts") and call options ("calls") purchased or sold
(written) by the Fund regarding escrow or other arrangements
(i) in accordance with the provisions of any agreement entered
into upon receipt of Proper Instructions between the Bank, any
broker-dealer registered under the Securities Exchange Act of
1934 and a member of the National Association of Securities
Dealers, Inc. (the "NASD"), and, if necessary, the Fund
relating to the compliance with the rules of the Options
Clearing Corporation and of any registered national securities
exchange, or of any similar organization or organizations.
2. Unless another agreement requires it to do
so, the Bank shall be under no duty or obligation to see that
the Fund has deposited or is maintaining adequate margin, if
required, with any broker in connection
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with any option, nor shall the Bank be under duty or
obligation to present such option to the broker for exercise
unless it receives Proper Instructions from the Fund. The Bank
shall have no responsibility for the legality of any put or
call purchased or sold on behalf of the Fund, the propriety of
any such purchase or sale, or the adequacy of any collateral
delivered to a broker in connection with an option or
deposited to or withdrawn from a Segregated Account (as
defined in subsection 6.9 below). The Bank specifically, but
not by way of limitation, shall not be under any duty or
obligation to: (i) periodically check or notify the Fund that
the amount of such collateral held by a broker or held in a
Segregated Account is sufficient to protect such broker of the
Fund against any loss; (ii) effect the return of any
collateral delivered to a broker; or (iii) advise the Fund
that any option it holds, has or is about to expire. Such
duties or obligations shall be the sole responsibility of the
Fund.
(b) Puts, Calls and Futures Traded on Commodities
Exchanges.
1. The Bank shall take action as to puts, calls
and futures contracts ("Futures") purchased or sold by the
Fund in accordance with the provisions of any agreement among
the Fund, the Bank and a Futures Commission Merchant
registered under the Commodity Exchange Act, relating to
compliance with the rules of the Commodity Futures Trading
Commission and/or any Contract Market, or any similar
organization or organizations, regarding account deposits in
connection with transactions by the Fund.
2. The responsibilities and liabilities of the
Bank as to Futures, puts and calls traded on commodities
exchanges, any Futures Commission Merchant account and the
Segregated Account shall be limited as set forth in
subparagraph (a) (2) of this Section 6.8 as if such
subparagraph referred to Futures Commission Merchants rather
than brokers, and Futures and puts and calls thereon instead
of options.
6.9 Segregated Account. The Bank shall upon receipt of
Proper Instructions establish and maintain a Segregated Account or Accounts for
and on behalf of the Fund, into which Account or Accounts may be transferred
upon receipt of Proper Instructions cash and/or Portfolio Securities:
(a) in accordance with the provisions of any agreement
among the Fund, the Bank and a broker-dealer registered under the
Exchange Act and a member of the NASD or any Futures Commission
Merchant registered under the Commodity Exchange Act, relating to
compliance with the rules of the Options Clearing Corporation and of
any registered national securities exchange or the Commodity Futures
Trading Commission or any registered Contract Market, or of
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any similar organization or organizations regarding escrow or other
arrangements in connection with transactions by the Fund;
(b) for the purpose of segregating cash or securities in
connection with options purchased or written by the Fund or commodity
futures purchased or written by the Fund;
(c) for the deposit of liquid assets, such as cash, U.S.
Government securities or other high grade debt obligations, having a
market value (marked to the market on a daily basis) at all times equal
to not less than the aggregate purchase price due on the settlement
dates of all the Fund's then outstanding forward commitment or
"when-issued" agreements relating to the purchase of Portfolio
Securities and all the Fund's then outstanding commitments under
reverse repurchase agreements entered into with broker-dealer firms;
(d) for the deposit of any Portfolio Securities which the
Fund has agreed to sell on a forward commitment basis, all in
accordance with Investment Company Act Release No. 10666;
(e) for the purposes of compliance by the Fund with the
procedures required by Investment Company Act Release No. 10666, or any
subsequent release or releases of the Securities and Exchange
Commission relating to the maintenance of Segregated Accounts by
registered investment companies;
(f) for other proper corporate purposes, but only, in the
case of the clause (f), upon receipt of, in addition to Proper
Instructions, a certified copy of a resolution of the Board, signed by
an officer of the Fund and certified by the Secretary or an Assistant
Secretary, setting forth the purpose or purposes of such Segregated
Account and declaring such purposes to be proper corporate purposes.
(g) Assets may be withdrawn from the Segregated Account
pursuant to Proper Instructions only
(i) in accordance with the provisions of any
agreements referenced in (a) or (b) above;
(ii) for sale or delivery to meet the Fund's
obligations under outstanding firm commitment or when-issued
agreements for the purchase of Portfolio Securities and under
reverse repurchase agreements;
(iii) for exchange for other liquid assets of
equal or greater value deposited in the Segregated Account;
(iv) to the extent that the Fund's outstanding
forward commitment or when-issued agreements for the purchase
of portfolio
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securities or reverse repurchase agreements are sold to other
parties or the Fund's obligations thereunder are met from
assets of the Fund other than those in the Segregated Account;
or
(v) for delivery upon settlement of a forward
commitment agreement for the sale of Portfolio Securities.
6.10 Interest Bearing Call or Time Deposits. The Bank
hall, upon receipt of Proper Instructions relating to the purchase by the Fund
of interest bearing fixed term and call deposits, transfer cash, by wire or
otherwise, in such amounts and to such bank or banks as shall be indicated in
such Proper Instructions. The Bank shall include in its records with respect to
the assets of the Fund appropriate notation as to the amount of each such
deposit, the banking institution with which such deposit is made (the "Deposit
Bank"), and shall retain such forms of advice or receipt evidencing the deposit,
if any, as may be forwarded to the Bank by the Deposit Bank. Such deposits shall
be deemed Portfolio Securities of the Fund and the responsibility of the Bank
therefor shall be the same as and no greater than the Bank's responsibility in
respect of other Portfolio Securities of the Fund.
6.11 Transfer of Securities. The Bank will transfer,
exchange, deliver or release Portfolio Securities held by it hereunder, insofar
as such Securities are available for such purpose, provided that before making
any transfer, exchange, delivery or release under this Section the Bank will
receive Proper Instructions requesting such transfer, exchange or delivery
stating that it is for a purpose permitted under the terms of this Section 6.11,
specifying the applicable subsection, or describing the purpose of the
transaction with sufficient particularity to permit the Bank to ascertain the
applicable subsection, only
(a) upon sales of Portfolio Securities for the account of
the Fund, against contemporaneous receipt by the Bank of payment
therefor in full, each such payment to be in the amount of the sale
price shown in a broker's confirmation of sale of the Portfolio
Securities, if available, received by the Bank before such payment is
made, as confirmed in the Proper Instructions received by the Bank
before such payment is made;
(b) in exchange for or upon conversion into other
securities alone or other securities and cash pursuant to any plan of
merger, consolidation, reorganization, share split-up, change in par
value, recapitalization or readjustment or otherwise, upon exercise of
subscription, purchase or sale or other similar rights represented by
such Portfolio Securities, or for the purpose of tendering shares in
the event of a tender offer therefor, provided however that in the
event of an offer of exchange, tender offer, or other exercise of
rights requiring the physical tender or delivery of Portfolio
Securities, the Bank shall have no liability for failure to so tender
in a timely manner unless such Proper
-12-
Instructions are received by the Bank at least two business days prior
to the date required for tender, and unless the Bank (or its agent or
subcustodian hereunder) has actual possession of such Security at least
two business days prior to the date of tender;
(c) upon conversion of Portfolio Securities pursuant to
their terms into other securities;
(d) [RESERVED]
(e) in the case of option contracts owned by the Fund,
for presentation to the endorsing broker;
(f) when such Portfolio Securities are called, redeemed
or retired or otherwise become payable;
(g) for the purpose of effectuating the pledge of
Portfolio Securities held by the Bank in order to collateralize loans
made to the Fund by any bank, including the Bank; provided, however,
that such Portfolio Securities will be released only upon payment to
the Bank for the account of the Fund of the moneys borrowed, except
that in cases where additional collateral is required to secure a
borrowing already made, and such fact is made to appear in the Proper
Instructions, further Portfolio Securities may be released for that
purpose without any such payment. In the event that any such pledged
Portfolio Securities are held by the Bank, they will be so held for the
account of the lender, and after notice to the Fund from the lender in
accordance with the normal procedures of the lender, that an event of
deficiency or default on the loan has occurred, the Bank may deliver
such pledged Portfolio Securities to or for the account of the lender;
(h) for the purpose of releasing certificates
representing Portfolio Securities, against contemporaneous receipt by
the Bank of the fair market value of such security, as set forth in
Proper Instructions received by the Bank before such payment is made;
(i) for the purpose of delivering Portfolio Securities
lent by the Fund to a bank or broker dealer, but only against receipt
in accordance with street delivery custom except as otherwise provided
herein, of adequate collateral as agreed upon from time to time by the
Fund and the Bank, and upon receipt of payment in connection with any
repurchase agreement relating to such securities entered into by the
Fund;
(j) for other authorized transactions of the Fund or for
other proper corporate purposes; provided that before making such
transfer, the Bank will also receive a certified copy of a resolution
of the Board, signed by an Authorized Person (other than the officer
certifying such resolution) and certified by its
-13-
Secretary or Assistant Secretary, specifying the Portfolio Securities
to be delivered, setting forth the transaction in or purpose for which
such delivery is to be made, declaring such transaction to be an
authorized transaction of the Fund or such purpose to be a proper
corporate purpose, and naming the person or persons to whom delivery of
such securities shall be made; and
(k) upon termination of this Agreement as hereinafter set
forth pursuant to Section 8 and Section 14 of this Agreement.
As to any deliveries made by the Bank pursuant to subsections (a), (b),
(c), (e), (f), (g), (h) and (i) Securities or cash receivable in exchange
thereof or shall be delivered to the Bank.
7. [RESERVED]
8. Merger, Dissolution, etc. of Fund. In the case of the
following transactions, not in the ordinary course of business, namely, the
merger of the Fund into or the consolidation of the Fund with another investment
company, the sale by the Fund of all, or substantially all, of its assets to
another investment company, or the liquidation or dissolution of the Fund and
distribution of its assets, the Bank will deliver the Portfolio Securities held
by it under this Agreement and disburse cash only upon the order of the Fund set
forth in an Officers' Certificate, accompanied by a certified copy of a
resolution of the Board authorizing any of the foregoing transactions. Upon
completion of such delivery and disbursement and the payment of the fees,
disbursements and expenses of the Bank, this Agreement will terminate.
9. Actions of Bank Without Prior Authorization. Notwithstanding
anything herein to the contrary, unless and until the Bank receives an Officers'
Certificate to the contrary, it will without prior authorization or instruction
of the Fund or the transfer agent:
9.1 Endorse for collection and collect on behalf of and
in the name of the Fund all checks, drafts, or other negotiable or transferable
instruments or other orders for the payment of money received by it for the
account of the Fund and receive and hold for the account of the Fund all income,
dividends, interest and other payments or distribution of cash with respect to
the Portfolio Securities held thereunder;
9.2 Present for payment all coupons and other income
items held by it for the account of the Fund which call for payment upon
presentation and hold the cash received by it upon such payment for the account
of the Fund;
9.3 Receive and hold for the account of the Fund all
securities received as a distribution on Portfolio Securities as a result of a
stock dividend, share split-up, reorganization, recapitalization, merger,
consolidation, readjustment, distribution of
-14-
rights and similar securities issued with respect to any Portfolio Securities
held by it hereunder.
9.4 Execute as agent on behalf of the Fund all necessary
ownership and other certificates and affidavits required by the Internal Revenue
Code or the regulations of the Treasury Department issued thereunder, or by the
laws of any state, now or hereafter in effect, inserting the Fund's name on such
certificates as the owner of the securities covered thereby, to the extent it
may lawfully do so and as may be required to obtain payment in respect thereof.
The Bank will execute and deliver such certificates in connection with Portfolio
Securities delivered to it or by it under this Agreement as may be required
under the provisions of the Internal Revenue Code and any Regulations of the
Treasury Department issued thereunder, or under the laws of any State;
9.5 Present for payment all Portfolio Securities which
are called, redeemed, retired or otherwise become payable, and hold cash
received by it upon payment for the account of the Fund; and
9.6 Exchange interim receipts or temporary securities for
definitive securities.
10. Collection; Defaults. The Bank will use all reasonable effort
to collect any funds which may to its knowledge become collectible arising from
Portfolio Securities, including dividends, interest and other income, and to
transmit to the Fund notice actually received by it of any call for redemption,
offer of exchange, right of subscription, reorganization or other proceedings
affecting such Securities.
If Portfolio Securities upon which such income is payable are in
default or payment is refused after due demand or presentation, the Bank will
notify the Fund in writing of any default or refusal to pay within two business
days from the day on which it receives knowledge of such default or refusal. In
addition, the Bank will send the Fund a written report once each month showing
any income on any portfolio Security held by it which is more than ten days
overdue on the date of such report and which has not previously been reported.
11. Maintenance of Records; Accounting Services. The Bank will
maintain records with respect to transactions for which the Bank is responsible
pursuant to the terms and conditions of this Agreement, and in compliance with
the applicable rules and regulations of the Act and will furnish the Fund daily
with a statement of condition of the Fund. The Bank will furnish to the Fund at
the end of every month, and at the close of each quarter of the Fund's fiscal
year, a list of the Portfolio Securities and the aggregate amount of cash held
by it for the Fund. The books and records of the Bank pertaining to its actions
under this Agreement and reports by the Bank or its independent accountants
concerning its accounting system, procedures for safeguarding securities and
internal accounting controls will be open to inspection and audit at reasonable
times by officers of
-15-
or auditors employed by the Fund and will be preserved by the Bank in the manner
and in accordance with the applicable rules and regulations under the Act. The
Bank will provide the Fund, at such times as the Fund may reasonably require,
with copies of such reports by independent public accountants.
The Bank shall keep the books of account and render statements or
copies from time to time as reasonably requested by the Treasurer or any
executive officer of the Fund.
The Bank shall assist generally in the preparation of reports to
shareholders and others, audits of accounts, and other ministerial matters of
like nature.
12. Fund Evaluation. The Bank shall compute and, unless otherwise
directed by the Board, determine as of the close of business on the New York
Stock Exchange ("NYSE") on the each day of the week on which said Exchange is
open for unrestricted trading and as of such other days and hours, if any, as
may be authorized by the Board, the net asset value of a share of capital stock
of the Fund, such determination to be made in accordance with the provisions of
the Articles and By-laws of the Fund and Prospectus and Statement of Additional
Information relating to the Fund, as they may from time to time be amended, and
any applicable resolutions of the Board at the time in force and applicable; and
promptly to notify the Fund, and, with respect to such computation on the last
such day of each week, to notify Lipper Analytical Services, or such other
persons as the Fund may request of the results of such computation and
determination. In computing the net asset value hereunder, the Bank may rely in
good faith upon information furnished to it by any Authorized Person in respect
of (i) the manner of accrual of the liabilities of the Fund and in respect of
liabilities of the Fund not appearing on its books of account kept by the Bank,
(ii) reserves, if any, authorized by the Board or that no such reserves have
been authorized, (iii) the source of the quotations to be used in computing the
net asset value, and (iv) the value to be assigned to any security for which no
price quotations are available, and the Bank shall not be responsible for any
loss occasioned by such reliance or for any good faith reliance on any
quotations received from a source pursuant to (iii) above.
13. Concerning the Bank.
13.1 Performance of Duties; Standard of Care. In
performing its duties hereunder and any other duties listed on any Schedule
hereto, if any, the Bank will be entitled to receive and act upon the advice of
independent counsel of its own selection, which may be counsel for the Fund, and
will be without liability for any action taken or thing done or omitted to be
done in accordance with this Agreement in good faith in conformity with such
advice. In the performance of its duties hereunder, the Bank will be protected
and not be liable, and will be indemnified and saved harmless for any action
taken or omitted to be taken by it in good faith reliance upon the terms of this
Agreement, any Officers' Certificate, Proper Instructions, resolution of the
Board, telegram, notice,
-16-
request, certificate or other instrument reasonably believed by the Bank to be
genuine and for any other loss to the Fund except in the case of its negligence,
wilful misfeasance or misconduct in the performance of its duties or negligent
disregard of its obligations and duties hereunder. The Bank shall give prompt
written notice to the Fund of any claim against it for which indemnification may
be sought hereunder, specifying the amount and nature of the claim. The Fund
shall have the right to participate at its own expense in the defense of any
such matter or its settlement, or, if in the opinion of the Bank its financial
condition or business would not be impaired thereby, the Bank may authorize the
Fund, if it so desires, to take over the defense of such matters so long as such
defense is expeditious.
The Bank will be under no duty or obligation to inquire into and will
not be liable for:
(a) the validity of the issue of any Portfolio Securities
purchased by or for the Fund, the legality of the purchases thereof or
the propriety of the price incurred therefor;
(b) the legality of any sale of any Portfolio Securities
by or for the Fund or the propriety of the amount for which the same
are sold;
(c) the legality of an issue or sale of any common stock
of the Fund or the sufficiency of the amount to be received therefor;
(d) the legality of the repurchase of any common stock of
the Fund or the propriety of the amount to be paid therefor;
(e) the legality of the declaration of any dividend by
the Fund or the legality of the distribution of any Portfolio
Securities as payment in kind of such dividend; or
(f) any property or moneys of the Fund unless and until
received by it, and any such property or moneys delivered or paid by it
pursuant to the terms hereof.
Moreover, the Bank will not be under any duty or obligation to
ascertain whether any Portfolio Securities at any time delivered to or held by
it for the account of the Fund are such as may properly be held by the Fund
under the provisions of its Articles or By-laws, any federal or state statutes
or any rule or regulation of any governmental agency.
Notwithstanding anything in this Agreement to the contrary, in no event
shall the Bank be liable hereunder or to any third party for any losses or
damages of any kind resulting from acts of God, earthquakes, fires, floods,
storms or other disturbances of nature, epidemics, strikes, riots,
nationalization, expropriation, currency restrictions, acts of war, civil war or
terrorism, insurrection, nuclear fusion, fission or radiation, the
-17-
interruption, loss or malfunction of utilities, transportation, or computers
(hardware or software) and computer facilities, the unavailability of energy
sources and other similar happenings or events except as results from the Bank's
own negligence, willful misfeasance or misconduct.
13.2 Agents and Subcustodians. The Bank may employ agents
in the performance of its duties hereunder and shall be responsible for the acts
and omissions of such agents as if performed by the Bank hereunder.
Upon receipt of Proper Instructions, the Bank may employ subcustodians
with respect to domestic securities, provided that any such subcustodian meets
at least the minimum qualifications required by Section 17(f) (1) of the Act to
act as a custodian of the Fund's assets. Provided the Bank has received a
certified copy of a resolution of the Board specifically approving the
appointment of an Eligible Foreign Custodian and the depositing of Portfolio
Securities which are Foreign Securities therewith and the Bank has not received
an Officer's Certificate indicating that such approval has been withdrawn, the
Bank may deposit such Foreign Securities and cash with such Eligible Foreign
Custodian, as a subcustodian hereunder, as set forth on Schedule A hereto, as
may be amended by the parties from time to time. The Bank shall have no
liability to the Fund or any other person by reason of any act or omission of
any subcustodian and the Fund shall indemnify the Bank and hold it harmless from
and against any and all actions, suits and claims, arising directly or
indirectly out of the performance of any subcustodian, provided however, that
this provision shall not protect the Bank in the event of the Bank's own
negligence, willful misfeasance or misconduct or from any negligent disregard of
its own duties hereunder. Upon request of the Bank, the Fund shall assume the
entire defense of any action, suit, or claim subject to the foregoing indemnity.
The Fund shall pay all fees and expenses of any subcustodian as shall be
mutually agreed upon prior to the appointment of such subcustodian.
13.3 Insurance. The Bank shall use the same care with
respect to the safekeeping of Portfolio Securities and cash of the Fund held by
it as it uses in respect of its own similar property but it need not maintain
any special insurance for the benefit of the Fund.
13.4 Fees and Expenses of Bank. The Fund will pay or
reimburse the Bank from time to time for any transfer taxes payable upon
transfer of Portfolio Securities made hereunder, and for all necessary proper
disbursements, expenses and charges made or incurred by the Bank in the
performance of this Agreement (including any duties listed on any Schedule
hereto, it any) including any indemnities for any loss, liabilities or expense
to the Bank as provided above. For the services rendered by the Bank hereunder,
the Fund will pay to the Bank such compensation or fees at such rate and at such
times as shall be agreed upon in writing by the parties from time to time. The
Bank will also be entitled to reimbursement by the Fund for all reasonable
expenses incurred in conjunction with termination of this Agreement by the Fund.
-18-
13.5 Advances by Bank. The Bank may, in its sole
discretion, advance funds on behalf of the Fund to make any payment permitted by
this Agreement upon receipt of any proper authorization required by this
Agreement for such payments by the Fund. Should such a payment or payments, with
advanced funds, result in an overdraft (due to insufficiencies of the Fund's
account with the Bank, or for any other reason) this Agreement deems any such
overdraft or related indebtedness, a loan made by the Bank to the Fund payable
on demand and bearing interest at the current rate charged by the Bank for such
loans unless the Fund shall provide the Bank with agreed upon compensating
balances. The Fund agrees that the Bank shall have a continuing lien and
security interest to the extent of any overdraft or indebtedness, in and to any
property at any time held by it for the Fund's benefit or in which the Fund has
an interest and which is then in the Bank's possession or control (or in the
possession or control of any third party acting on the Bank's behalf). The Fund
authorizes the Bank, in its sole discretion, at any time to charge any overdraft
or indebtedness, together with interest due thereon against any balance of
account standing to the credit of the Fund on the Bank's books.
14. Termination.
14.1 This Agreement may be terminated at any time without
penalty upon sixty days written notice delivered by either party to the other by
means of registered mail, and upon the expiration of such sixty days this
Agreement will terminate; provided, however, that the effective date of such
termination may be postponed to a date not more than ninety days from the date
of delivery of such notice (i) by the Bank in order to prepare for the transfer
by the Bank of all of the assets of the Fund held hereunder, and (ii) by the
Fund in order to give the Fund an opportunity to make suitable arrangements for
a successor custodian. At any time after the termination of this Agreement, the
Fund will, at its request, have access to the records of the Bank relating to
the performance of its duties as custodian.
14.2 In the event of the termination of this Agreement,
the Bank will immediately upon receipt or transmittal, as the case may be, of
notice of termination, commence and prosecute diligently to completion the
transfer of all cash and the delivery of all Portfolio Securities duly endorsed
and all records maintained under Section 11 to the successor custodian when
appointed by the Fund. The obligation of the Bank to deliver and transfer over
the assets of the Fund held by it directly to such successor custodian will
commence as soon as such successor is appointed and will continue until
completed as aforesaid. If the Fund does not select a successor custodian within
ninety (90) days from the date of delivery of notice of termination the Bank
may, subject to the provisions of subsection (14.3), deliver the Portfolio
Securities and cash of the Fund held by the Bank to a bank or trust company of
its own selection which meets the requirements of Section 17(f) (1) of the Act
and has a reported capital, surplus and undivided profits aggregating not less
than $2,000,000, to be held as the property of the Fund under terms similar to
those on which they were held by the Bank, whereupon such
-19-
bank or trust company so selected by the Bank will become the successor
custodian of such assets of the Fund with the same effect as though selected by
the Board.
14.3 Prior to the expiration of ninety (90) days after
notice of termination has been given, the Fund may furnish the Bank with an
order of the Fund advising that a successor custodian cannot be found willing
and able to act upon reasonable and customary terms and that there has been
submitted to the shareholders of the Fund the question of whether the Fund will
be liquidated or will function without a custodian for the assets of the Fund
held by the Bank. In that event the Bank will deliver the Portfolio Securities
and cash of the Fund held by it, subject as aforesaid, in accordance with one of
such alternatives which may be approved by the requisite vote of shareholders,
upon receipt by the Bank of a copy of the minutes of the meeting of shareholders
at which action was taken, certified by the Fund's Secretary and an opinion of
counsel to the Fund in form and content satisfactory to the Bank.
15. Notices. Any notice or other instrument in writing authorized
or required by this Agreement to be given to either party hereto will be
sufficiently given if addressed to such party and mailed or delivered to it at
its office at the address set forth below; namely:
(a) In the case of notices sent to the Fund to:
The Future Germany Fund, Inc.
Deutsche Bank Capital Corporation
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(b) In the case of notices sent to the Bank to:
Investors Bank & Trust Company
Xxx Xxxxxxx Xxxxx
X.X. Xxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
or at such other place as such party may from time to time designate in
writing.
16. Amendments. This Agreement may not be altered or amended,
except by an instrument in writing, executed by both parties, and in the case of
the Fund, such alteration or amendment will be authorized and approved by its
Board.
17. Parties. This Agreement will be binding upon and shall inure
to the benefit of the parties hereto and their respective successors and
assigns; provided, however, that this Agreement will not be assignable by the
Fund without the written consent of the Bank or by the Bank without the written
consent of the Fund, authorized and approved by
-20-
its Board; and provided further that termination proceedings pursuant to Section
14 hereof will not be deemed to be an assignment within the meaning of this
provision.
18. Governing Law. This Agreement and all performance hereunder
will be governed by the laws of the Commonwealth of Massachusetts.
-21-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in duplicate and their respective corporate seals to be affixed hereto
as of the date first above written by their respective officers thereunto duly
authorized.
THE FUTURE GERMANY FUND, INC.
By ____________________________
President
ATTEST:
_________________________________
VP, Secretary & Treasurer
INVESTORS BANK & TRUST COMPANY
By
ATTEST:
_________________________________
-22-
Schedule A
to
Amended and Restated Custodian Agreement
between The Future Germany Fund, Inc. and
Investors Bank & Trust Company
The following entities are appointed subcustodians of the Fund with
respect to foreign securities and cash incidental to transactions in such
securities:
1. Euro-clear, Brussels, Belgium
2. Deutsche Bank AG, Frankfurt am Main, Germany
