EX-99.B(g)(2)
CUSTODY AGREEMENT
XXXXX FARGO VARIABLE TRUST
AGREEMENT, dated as of July 25, 2000, and relates to an agreement dated
as of September 20, 1999, between Xxxxx Fargo Variable Trust, a business Trust
organized under the laws of the State of Delaware with its principal place of
business at 000 Xxxxxx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000 and Xxxxx Fargo Bank
Minnesota, N.A. (the "Custodian"), a banking association organized under the
laws of the United States of America with its principal place of business at
Xxxxx Fargo Center, Sixth and Marquette, Xxxxxxxxxxx, Xxxxxxxxx 00000.
WHEREAS, the Trust is registered under the Investment Company Act of
1940, as amended (the "1940 Act"), as an open-end management investment company;
WHEREAS, the Trust desires to appoint the Custodian as custodian of the
securities and cash of the investment portfolios ("Fund") listed in Appendix A
and the Custodian is willing to act in such capacity upon the terms and
conditions set forth below.
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, the parties do hereby agree as follows:
SECTION 1. DEFINITIONS
Whenever used in this Agreement, the following terms shall have the
meanings specified, insofar as the context will allow.
(a) 1940 Act: The term 1940 Act shall mean the Investment Company Act of
--------
1940, as amended from time to time.
(b) Authorized Person: The term Authorized Person shall be deemed to include
-----------------
the treasurer, the controller or any other person, whether or not any
such person is an Officer or employee of the Trust, duly authorized by
the Board of Trustees ("Trustees") to give Oral Instructions and Written
Instructions on behalf of the Fund and listed in the Certificate attached
hereto or such other Certificate as may be received from time to time by
the Custodian.
(c) Authorized Administrative Person: The term Authorized Administrative
--------------------------------
Person shall mean those persons, duly authorized by the Board of
Trustees, to give Oral and Written Instructions with respect to the
payment of expenses for designated Funds.
(d) Board: The term Board shall mean the Board of Trustees of the Trust.
-----
-1-
(e) Book-Entry Account: The term Book-Entry Account shall mean an account
------------------
maintained by a Federal Reserve Bank in which Book-Entry Securities are
held.
(f) Book-Entry Securities: The term Book-Entry Securities shall mean
---------------------
securities issued by the United States Treasury and United States
Federal agencies and instrumentalities that are maintained in the
book-entry system maintained by a Federal Reserve Bank.
(g) Certificate: The term Certificate shall mean any notice, instruction,
-----------
or other instrument in writing, authorized or required by this
Agreement to be given to the Custodian, which is actually received by
the Custodian and signed on behalf of a Fund by any two Officers of the
Trust.
(h) Clearing Member: The Term Clearing Member shall mean a registered
---------------
broker-dealer that is a member of a national securities exchange
qualified to act as a custodian for an investment company, or any
broker-dealer reasonably believed by the Custodian to be such a
clearing member.
(i) Depository: The term Depository shall mean The Depository Trust
----------
Company ("DTC"), Participants Trust Company ("PTC"), and any other
clearing agency registered with the Securities and Exchange Commission
under Section 17A of the Securities Exchange Act of 1934, its
successor(s) and its nominee(s), provided the Custodian has received a
certified copy of a resolution of the Board of Trustees specifically
approving deposits in DTC, PTC or such other clearing agency. The term
"Depository" shall further mean and include any person authorized to
act as a depository pursuant to Section 17, Rule 17f-4 or Rule 17f-5
under the 1940 Act, its successor(s) and its nominee(s), specifically
identified in a certified copy of a resolution of the Board of Trustees
approving deposits therein by the Custodian.
(j) Custodian: The term Custodian shall mean the Custodian in its
---------
capacity as custodian under this Agreement.
(k) Foreign Securities: The term Foreign Securities shall mean "Foreign
------------------
Securities" as that term is defined in Rule 17f-5 under the 1940 Act.
(l) Foreign Custodian: The term Foreign Custodian shall mean "Eligible
-----------------
Foreign Custodian" as that term is defined in Rule 17f-5 under the 1940
Act.
(m) Fund Business Day: The term Fund Business Day shall mean a day that is
-----------------
a business day for a Fund as defined in the Fund's prospectus.
(n) Funds: The term Funds shall mean the Funds listed in Appendix A or any
-----
Fund that the Trust shall subsequently establish, provided that the
Custodian may decline to act as custodian for any Fund subsequently
established.
-2-
(o) Margin Account: The term Margin Account shall mean a segregated
--------------
account in the name of a broker, dealer, or Clearing Member, or in the
name of the Trust or a Fund for the benefit of a broker, dealer, or
Clearing Member, or otherwise, in accordance with an agreement between
the Trust on behalf of a Fund, the Custodian and a broker, dealer, or
Clearing Member (a "Margin Account Agreement"), separate and distinct
from the custody account, in which certain Securities and/or moneys of
a Fund shall be deposited and withdrawn from time to time in connection
with such transactions as the Fund may from time to time determine.
Securities held in the Book-Entry System or the Depository shall be
deemed to have been deposited in, or withdrawn from, a Margin Account
upon the Custodian's effecting an appropriate entry on its books and
records.
(p) Money Market Securities: The term Money Market Securities shall be
-----------------------
deemed to include, without limitation, debt obligations issued or
guaranteed as to principal and interest by the government of the United
States or agencies or instrumentalities thereof, commercial paper,
certificates of deposit and bankers' acceptances, repurchase and
reverse repurchase agreements with respect to the same and bank time
deposits, where the purchase and sale of such securities normally
requires settlement in federal funds on the same date as such purchase
or sale.
(q) Officers: The term Officers shall be deemed to include the President,
--------
Vice President, the Secretary, the Treasurer, the Controller, any
Assistant Secretary, any Assistant Treasurer or any other person or
persons duly authorized by the Trustees of the Trust to execute any
Certificate, instruction, notice or other instrument on behalf of the
Fund and listed in the Certificate attached hereto or such other
Certificate as may be received by the Custodian from time to time.
(r) Oral Instructions: The term Oral Instructions shall mean an
-----------------
authorization, instruction, approval, item or set of data, or
information of any kind transmitted to the Custodian in person or by
telephone, vocal telegram or other electronic means, by a person or
persons reasonably believed in good faith by the Custodian to be a
person or persons authorized by a resolution of the Board to give Oral
Instructions on behalf of the Trust or a Fund. Each Oral Instruction
shall specify whether it is applicable to the entire Trust or a
specific Fund of the Trust.
(s) Reverse Repurchase Agreement: The term Reverse Repurchase Agreement
----------------------------
shall mean an agreement pursuant to which a Fund sells Securities and
agrees to repurchase such Securities at a described or specified date
and price.
(t) Securities: The term Securities shall mean bonds, debentures, notes,
----------
stocks, shares, evidences of indebtedness, and other securities and
investments from time to time owned by the Trust.
(u) Securities Depository: The term Securities Depository shall mean a
---------------------
system, domestic or foreign, for the central handling of securities in
which all securities of any particular class or series of any issuer
deposited within the system are treated as fungible and may be
-3-
transferred or pledged by bookkeeping entry without physical delivery
of the securities and shall include any system for the issuance of
Book-Entry Securities.
(v) Segregated Security Account: shall mean an account maintained under the
---------------------------
terms of this Agreement as a segregated account, by recordation or
otherwise, within the custody account in which certain Securities
and/or other assets of a Fund shall be deposited and withdrawn from
time to time in accordance with Certificates received by the Custodian
in connection with such transactions as a Fund may from time to time
determine.
(w) Share Certificates: The term Share Certificates shall mean the
------------------
certificates for the Shares.
(x) Shareholders: The term Shareholders shall mean the registered owners
------------
from time to time of the Shares, as reflected on the share registry
records of the Trust.
(y) Shares: The term Shares shall mean the shares of common stock of a
------
Fund, each of which, in the case of a Fund having Series, is allocated
to a particular Series.
(z) Sub-Custodian: The term Sub-Custodian shall mean any person selected by
-------------
the Custodian under Section 20 hereof and in accordance with the
requirements of the 1940 Act to custody any or all of the Securities
and cash of the Trust, and shall include Foreign Sub-Custodians.
(aa) Trust: The term Trust shall mean Xxxxx Fargo Variable Trust.
-----
(bb) Written Instructions: The term Written Instructions shall mean an
--------------------
authorization, instruction, approval, item or set of data, or
information of any kind transmitted to the Custodian in original
writing containing original signatures, or a copy of such document
transmitted by telecopy, including transmission of such signature, or
other mechanical or documentary means, at the request of a person or
persons reasonably believed in good faith by the Custodian to be a
person or persons authorized by a resolution of the Board to give
Written Instructions on behalf of the Trust or a Fund. Each Written
Instruction shall specify whether it is applicable to the entire Trust
or a specific Fund of the Trust.
SECTION 2. APPOINTMENT
The Trust hereby appoints the Custodian as custodian of the Securities
and cash of each Fund from time to time on deposit hereunder. The Securities and
cash of each Fund shall be and remain the sole property of the Fund and the
Custodian shall have only custody thereof. The Custodian shall hold, earmark and
physically segregate for the appropriate Fund account of the Trust all non-cash
property, including all Securities that are not maintained pursuant to Section 6
in a Securities Depository or Book-Entry Account. The Custodian will collect
from time to time the dividends and interest of the Securities held by the
Custodian.
The Custodian shall open and maintain a separate bank or trust account
or accounts in the name of the Trust and each Fund, subject only to draft or
order by the Custodian acting pursuant
-4-
to the terms of this Agreement, and shall hold in such account or accounts,
subject to the provisions hereof, all cash received by it from or for the
account of the Trust or a Fund. Notwithstanding the foregoing, a separate bank
account may be established by the Trust to be used as a xxxxx cash account in
accordance with Rule 17f-3 under the 1940 Act and the Custodian shall have not
duty or liability with regard to such account.
Upon receipt of Written Instructions, funds held by the Custodian for a
Fund may be deposited by the Custodian to its credit in the banking department
of the Custodian or in such other banks or trust companies as it may in its
discretion deem necessary or desirable. Such funds shall be deposited by the
Custodian in its capacity as Custodian and shall be withdrawable by the
Custodian only in that capacity.
SECTION 3. DELIVERY OF BOARD RESOLUTIONS
The Trust shall, as necessary, file with the Custodian a certified copy
of the operative resolution of the Board authorizing execution of Written
Instructions and the number of signatories required and setting forth authentic
signatures of all signatories authorized to sign on behalf of the Trust or any
Fund thereof. Such resolution shall constitute conclusive evidence of the
authority of all signatories designated therein to act and shall be considered
in full force and effect, with the Custodian fully protected in acting in
reliance thereon, until the Custodian receives a certified copy of a replacement
resolution adding or deleting a person or persons authorized to give written
Instructions.
The Trust shall, as necessary, file with the Custodian a certified copy
of the operative resolution of the Board authorizing the transmittal of Oral
Instructions and specifying the person or persons authorized to give Oral
Instructions on behalf of the Trust or any Fund. Such resolution shall
constitute conclusive evidence of the authority of the person or persons
designated therein to act and shall be considered in full force and effect, with
the Custodian fully protected in acting in reliance therein, until the Custodian
actually receives a certified copy of a replacement resolution adding or
deleting a person or persons authorized to give Oral Instructions. If the
officer certifying the resolution is authorized to give Oral Instructions, the
certification shall also be signed by a second officer of the Trust.
SECTION 4. INSTRUCTIONS
For all purposes under this Agreement, the Custodian is authorized to
act upon receipt of the first of any Written or Oral Instruction it receives. If
the first Instruction is an Oral Instruction, the Trust shall deliver or have
delivered to the Custodian a confirmatory Written Instruction; and if the
Custodian receives an Instruction, whether Written or Oral, with respect to a
Securities transaction, the Trust shall cause the broker or dealer to send a
written confirmation of the transaction to the Custodian. The Custodian shall be
entitled to rely on the first Instruction received and, for any act or omission
undertaken in compliance therewith, shall be free of liability and fully
indemnified and held harmless by the Trust. The sole obligation of the Custodian
with respect to any confirmatory Written Instruction or broker or dealer written
confirmation shall be to make reasonable efforts to detect any discrepancy
between the original
-5-
Instruction and such confirmation and to report such discrepancy to the Trust.
The Trust shall be responsible, at the Trust's expense, for taking any action,
including any reprocessing, necessary to correct any discrepancy or error, and
to the extent such action requires the Custodian to act, the Trust shall give
the Custodian specific Written Instructions as to the action required.
SECTION 5. DEPOSIT OF TRUST ASSETS
The Trust will initially transfer and deposit or cause to be
transferred and deposited with the Custodian all of the Securities, other
property and cash owned by each Fund at the time this Agreement becomes
effective, provided that the Custodian shall have the right, in its sole
discretion, to refuse to accept any securities or other property that are not in
proper form for deposit or any reason. Such transfer and deposit shall be
evidenced by appropriate schedules duly executed by the Trust on behalf of the
Fund. The Trust may deposit with the Custodian additional Securities of the
Funds and dividends or interest collected on such Securities as the same are
acquired from time to time.
The Trust will cause to be deposited with the Custodian from time to
time (i) the net proceeds of Securities sold, (ii) the applicable net asset
value of Shares sold, whether representing initial issue or any other securities
and (iii) cash as may be acquired. Deposits with respect to sales of Shares
shall be accompanied by Written or Oral Instructions stating the amount to be
deposited with the Custodian and registration instructions.
SECTION 6. DEPOSIT OF TRUST ASSETS WITH THIRD PARTIES
The Trust hereby authorizes the Custodian to deposit assets of the
Funds as follows:
(a) With the Custodian or any other bank licensed and regularly
examined by the United States or any state thereof assets held in the Option
Account created pursuant to Section 13(b).
(b) In the Custodian or Sub-Custodian's account(s) with any Securities
Depository as the Trust shall permit by Written or Oral Instruction.
(c) Book-Entry Securities belonging to a Fund in a Book-Entry Account
maintained for the Custodian.
So long as any deposit referred to in (b) or (c) above is maintained
for a Fund, the Custodian shall: (i) deposit the Securities in an account that
includes only assets held by the Custodian for customers; (ii) send the Trust a
confirmation (i.e., an advice of notice of transaction) of any transfers of the
Trust or a Fund to or from the account; (iii) with respect to Securities of a
Fund transferred to the account, identify as belonging to the Fund a quantity of
securities in a fungible bulk of securities that are registered in the name of
the Custodian or its nominee, or credited to the Custodian's account on the
books of a Securities Depository or the Custodian's agent; (iv) promptly send to
the Trust all reports it receives from the appropriate Federal Reserve Bank or
Securities Depository on its respective system of internal accounting
-6-
control; and (v) send to the Trust such reports of the systems of internal
accounting control of the Custodian and its agents through which Securities are
deposited as are available and as the Trust may reasonably request from time to
time.
The Custodian shall be liable to the Trust or affected Fund for any
loss or damage to the Trust or the Fund resulting from the negligence (including
failure to act), fault or willful misconduct of the Custodian, its agents or
employees in selecting a Securities Depository or Book-Entry Account. The
Custodian shall not waive any rights it may have against a Securities Depository
or Federal Reserve Bank. The Trust on behalf of the affected Fund may elect to
be subrogated to the rights of the Custodian against the Securities Depository
or Federal Reserve Bank or any other person with respect to any claim that the
Custodian may have as a consequence of any such loss or damage, if and to the
extent that the Trust or the affected Fund has not been made whole for any such
loss or damage.
SECTION 7. REGISTRATION OF SECURITIES
The Securities held by the Custodian, unless payable to bearer or
maintained in a Securities Depository or Book-Entry Account pursuant to Section
6, shall be registered in the name of the Custodian or in the name of its
nominee, or if directed by Written Instructions, in the name of the Fund or its
nominee. In the event that any Securities are registered in the name of the Fund
or its nominee, the Trust on behalf of the Fund will endorse, or cause to be
endorsed, to the Custodian dividend and interest checks, or will issue
appropriate orders to the issuers of the Securities to pay dividends and
interest to the Custodian. Securities, excepting bearer securities, delivered
from time to time to the Custodian shall, in all cases, be in due form for
transfer, or registered as above provided.
SECTION 8. DISBURSEMENTS OF CASH
The Custodian is hereby authorized and directed to disburse cash to or
from a Fund from time to time as follows:
(a) For the purchase of Securities by the Fund, upon receipt by the
Custodian of (i) Written or Oral Instructions specifying the Securities and
stating the purchase price and the name of the broker, investment banker or
other party to or upon whose order the purchase price is to be paid and (ii)
either the Securities so purchased, in due form for transfer or already
registered as provided in Section 7, or notification by a Securities Depository
or a Federal Reserve Bank that the Securities have been credited to the
Custodian's account with the Securities Depository or Federal Reserve Bank.
(b) For transferring funds, including xxxx-to-the-market payments, in
connection with a repurchase agreement covering Securities that have been
received by the Custodian as provided in subsection (a) above, upon receipt by
the Custodian of (i) Written or Oral Instruction specifying the Securities, the
purchase price and the party to whom the purchase price is to be paid and (ii)
written agreement to repurchase the Securities from the Fund.
-7-
(c) For transferring funds to a duly-designated redemption paying agent
to redeem or repurchase Shares, upon receipt of (i) either Share Certificates in
due form for transfer, or proper processing of Shares for which no Share
Certificates are outstanding and (ii) Written or Oral Instructions stating the
applicable redemption price.
(d) For exercising warrants and rights received upon the Securities,
upon timely receipt of Written or Oral Instructions authorizing the exercise of
such warrants and rights and stating the consideration to be paid.
(e) For repaying, in whole or in part, any loan of a Fund, or returning
cash collateral for Securities loaned by a Fund, upon receipt of Written or Oral
Instructions directing payment and stating the Securities, if any, to be
received against payment.
(f) For paying over to a duly-designated dividend disbursing agent such
amounts as may be stated in Written or Oral Instructions as the Fund deems
appropriate to include in dividends or distributions declared on the Shares.
(g) For paying or reimbursing the Fund for other corporate
expenditures, upon receipt of Written or Oral Instructions stating that such
expenditures are or were authorized by resolution of the Board and specifying
the amount of payment, the purposes for which such payment is to be made, and
the person or persons to whom payment is to be made.
(h) For transferring funds to any Sub-Custodian, upon receipt of
Written or Oral Instructions and upon agreement by the Custodian.
(i) To advance or pay out accrued interest on bonds purchased,
dividends on stocks sold and similar items.
(j) To pay proper compensation and expenses of the Custodian.
(k) To pay, or provide the Fund with money to pay, taxes, upon receipt
of appropriate Written or Oral Instructions.
(l) To transfer funds to a separate checking account maintained by the
Trust on behalf of a Fund.
(m) To pay interest, management or supervisory fees, administration,
dividend and transfer agency fees and costs, compensation of personnel and
operating expenses, including but not limited to fees for legal, accounting and
auditing services.
Before making any payments or disbursements, however, the Custodian
shall receive, and may conclusively rely upon, Written or Oral Instructions
requesting such payment or disbursement and stating that it is for one or more
or the purposes enumerated above. Notwithstanding the foregoing, the Custodian
may disburse cash for other corporate purposes;
-8-
provided, however, that such disbursement maybe made only upon receipt of
Written or Oral Instructions stating that such disbursement was authorized by
resolution of the Board.
SECTION 9. DELIVERY OF SECURITIES
The Custodian is hereby authorized and directed to deliver Securities
of the Funds from time to time as follows:
(a) For completing sales of Securities sold by a Fund, upon receipt of
(i) Written or Oral Instructions specifying the Securities sold, the amount to
be received and the broker, investment banker or other party to or upon whose
order the Securities are to be delivered and (ii) the net proceeds of sale;
provided, however, that the Custodian may accept payment in connection with the
sale of Book-Entry Securities and Securities on deposit with a Securities
Depository by means of a credit in the appropriate amount to the account
described in Section 6(b) or (c) above.
(b) For exchanging Securities for other Securities (and cash, if
applicable), upon timely receipt of (i) Written or Oral Instructions stating the
Securities to be exchanged, cash to be received and the manner in which the
exchange is to be made and (ii) the other Securities (and cash, if applicable)
as specified in the Written or Oral Instructions.
(c) For exchanging or converting Securities pursuant to their terms or
pursuant to any plan of conversion, consolidation, recapitalization,
reorganization, re-adjustment or otherwise, upon timely receipt of (i) Written
or Oral Instructions authorizing such exchange or conversion and stating the
manner in which such exchange or conversion is to be made and (ii) the
Securities, certificates of deposit, interim receipts, and/or cash to be
received as specified in the Written or Oral Instructions.
(d) For presenting for payment Securities that have matured or have
been called for redemption;
(e) For delivering Securities upon redemption of Shares in kind, upon
receipt of (i) Share Certificates in due form for transfer, or proper processing
of Shares for which no Share Certificates are outstanding and (ii) appropriate
Written or Oral Instructions.
(f) For depositing with the lender Securities to be held as collateral
for a loan to a Fund or depositing with a borrower Securities to be loaned by a
Fund, (i) upon receipt of Written or Oral Instructions directing delivery to the
lender or borrower and suitable collateral, if Securities are loaned or (ii)
pursuant to the terms of a separate securities lending agreement.
(g) For complying with a repurchase agreement, upon receipt of Written
or Oral Instructions stating (i) the securities to be delivered and the payment
to be received and (ii) payment.
-9-
(h) For depositing with a depository agent in connection with a tender
or other similar offer to purchase Securities of a Fund, upon receipt of Written
or Oral Instructions.
(i) For depositing Securities with the issuer thereof, or its agents,
for the purpose of transferring such Securities into the name of a Fund, the
Custodian or any nominee of either in accordance with Section 7.
(j) For other proper corporate purposes; provided, that the Custodian
shall receive Written or Oral Instructions requesting such delivery.
(k) Notwithstanding the foregoing, the Custodian may, without Written
or Oral Instructions, surrender and exchange Securities for other Securities in
connection with any reorganization, recapitalization, or similar transaction in
which the owner of the Securities is not given an option; provided, however,
that the Custodian has no responsibility to effect any such exchange unless it
has received actual notice of the event permitting or requiring such exchange.
To facilitate any such exchange, the Custodian is authorized to surrender
against payment maturing obligations and obligations called for redemption and
to effectuate the exchange in accordance with customary practices and procedures
established in the market for exchanges.
SECTION 10. BORROWINGS
The Fund will cause any person (including the Custodian) from which it
borrows money using Securities as collateral to deliver to the Custodian a
notice of undertaking in the form currently employed by the lender setting forth
the amount that the lender will loan to the Trust against delivery of a stated
amount of collateral. The Fund shall promptly deliver to the Custodian Written
or Oral Instructions for each loan, stating (i) the name of the lender, (ii) the
amount and terms of the loan, which terms may be specified by incorporating by
reference an attached promissory note or loan agreement duly endorsed by the
Trust on behalf of the Fund, (iii) the time and date, if known, on which the
loan will be consummated (the "borrowing date"), (iv) the date on which the loan
becomes due and payable, (v) the total amount payable to the Fund on the
borrowing date, (vi) the market value of Securities to be delivered as
collateral for such loan and (vii) the name of the issuer, the title and the
number of shares or principal amount of the Securities to be delivered as
collateral. The Custodian shall deliver on the borrowing date such specified
collateral and the executed promissory note, if any, and receive from the lender
the total amount of the loan proceeds; provided, however, that no delivery of
Securities shall occur if the amount of loan proceeds does not conform to the
amount set forth in the Written or Oral Instructions, or if such Instruction do
not contain the requirements of (vii) above. The Custodian may, at the option of
the lender, keep such collateral in its possession; provided such collateral is
subject to all rights given the lender by any promissory note or loan agreement
executed by the Trust on behalf of a Fund.
The Custodian shall deliver, from time to time, any Securities required
as additional collateral for any transaction described in this Section, upon
receipt of Written or Oral Instructions. The Fund shall cause all Securities
released from collateral status to be returned directly to the Custodian.
-10-
SECTION 11. INDEBTEDNESS TO CUSTODIAN
If, in its sole discretion, the Custodian advances funds to a Fund to pay
for the purchase of Securities, to cover an overdraft of the Fund's account with
the Custodian, or to pay any other indebtedness to the Custodian, the Fund's
indebtedness shall be deemed to be a loan by the Custodian to the Fund, payable
on demand and bearing interest at the rate then specified in the Overdraft and
Compensating Balances Procedures; provided, however, that the Custodian shall
give the Fund notice of any such advance that exceeds five percent of the value
of the Securities and cash held by the Custodian at the time of the advance. The
Fund hereby agrees that the Custodian shall have a continuing lien and security
interest, to the extent of any such overdraft or indebtedness, in any property
then held by the Custodian or its agents for the benefit of the Fund, or in
which the Fund may have an interest. The Fund authorizes the Custodian, in its
sole discretion at any time, to charge any such overdraft or indebtedness,
together with interest due thereon, against any balance then credited to the
Fund on the Custodian's books. Under no circumstances will one Fund be liable
for the indebtedness of another Fund.
SECTION 12. COMPENSATING BALANCES
The Custodian may compensate a Fund for any interest earned by the
Custodian on uninvested cash balances maintained in a Fund's account pursuant to
the Overdraft and Compensating Balances Procedures. The Custodian shall maintain
records, or provide the Fund with such records, sufficient to identify payments
made pursuant to this section, and the uninvested cash balance and interest
earned on such balance that prompted the compensating balances payment.
SECTION 13. SECURITIES LOANS
The Custodian may from time to time lend securities of a Fund in accordance
with and pursuant to a separate securities lending agreement.
SECTION 14. OPTIONS, FUTURES CONTRACTS AND SEGREGATED ACCOUNTS
The Custodian's responsibilities regarding option contracts will be
governed by the following sub-paragraphs:
(a) Options.
-------
(i) Upon receipt of Written or Oral Instructions relating to the
purchase of an option or sale of a covered call option, the Custodian shall: (A)
receive and retain confirmations or other documents, if any, evidencing the
purchase or writing of the option; (B) if the transaction involves the sale of a
covered call option, deposit and maintain in a segregated account the Securities
(either physically or by book-entry in a Securities Depository) subject to the
covered call option written on behalf of the Funds; and (C) pay, release and/or
transfer such securities, cash or other assets in accordance with any notices or
other communications evidencing the
-11-
expiration, termination or exercise of such options which are furnished to the
Custodian by the Options Clearing Corporation (the "OCC"), the Securities or
Options Exchanges on which such options were traded, or such other organization
as may be responsible for handling such option transactions.
(ii) Upon receipt of instructions relating to the sale of a naked
option (including stock index and commodity options), the Custodian, the Fund
and the broker-dealer shall enter into an agreement to comply with the rules of
the OCC or of any registered national securities exchange or similar
organizations(s). Pursuant to that agreement and any Written or Oral
Instructions, the Custodian shall: (A) receive and retain confirmations or other
documents, if any, evidencing the writing of the option; (B) deposit and
maintain in a segregated account Securities (either physically or by book-entry
in a Securities Depository cash and/or other assets; and (C) pay, release and/or
transfer such Securities, cash or other assets in accordance with any such
agreement and with any notices or other communications evidencing the
expiration, termination or exercise of such option which are furnished to the
Custodian by the OCC, the Securities or Options Exchanges on which such options
were traded, or such other organization as may be responsible for handling such
option transactions. The Custodian shall not be responsible for determining the
quality and quantity of assets held in any segregated account established in
compliance with applicable margin maintenance requirements and the performance
of other terms of any option contract.
(b) Futures Contracts. Upon receipt of Written or Oral Instructions,
-----------------
the custodian shall enter into a futures margin procedural agreement among the
Fund, the Custodian and the designated futures commission merchant (a
"Procedural Agreement"). Under the Procedural Agreement the Custodian shall: (A)
receive and retain confirmations, if any, evidencing the purchase or sale of a
futures contract or an option on a futures contract by a Series; (B) deposit and
maintain in a segregated account cash, Securities and/or other assets designated
as initial, maintenance or variation "margin" deposits intended to secure the
Funds' performance of its obligations under any futures contracts purchased or
sold, or any options on futures contracts written by the Funds, in accordance
with the provisions of any Procedural Agreement designed to comply with the
provisions of the Commodity Futures Trading Commission and/or any commodity
exchange or contract market (such as the Chicago Board of Trade), or any similar
organization(s), regarding such margin deposits; and (C) release assets from
and/or transfer assets into such margin accounts only in accordance with any
such Procedural Agreements. The Custodian shall not be responsible for
determining the type and amount of assets held in the segregated account or paid
to the broker-dealer in compliance with applicable margin maintenance
requirements and the performance of any futures contract or option on a futures
contract in accordance with its terms.
(c) Segregated Accounts. Upon receipt of Written or Oral Instructions,
-------------------
the Custodian shall establish and maintain on its books a segregated account or
accounts for and on behalf of the Funds, into which account or accounts may be
transferred assets of each Fund, including Securities maintained by the
Custodian in a Securities Depository, said account or accounts to be maintained
(i) for the purpose of compliance by the Fund with the procedures required by
SEC 1940 Act Release Number 10666 or any subsequent release or releases relating
to the
-12-
maintenance of segregated accounts by registered investment companies or (ii)
for such other purposes as may be set forth, from time to time in Written or
Oral Instructions. The Custodian shall not be responsible for the determination
of the type or amount of assets to be held in any segregated account referred to
in this paragraph.
SECTION 15. EXERCISE OF POWERS WITH RESPECT TO SECURITIES
The Custodian assumes no duty, obligation or responsibility whatsoever to
exercise any voting or consent powers with respect to the Securities held by it
from time to time hereunder. The Fund or such persons as it may designate shall
have the right to vote, consent or otherwise act with respect to Securities. The
Custodian will exercise its best efforts (as defined in Section 16) to furnish
to the Fund in a timely manner all proxies or other appropriate authorizations
with respect to Securities registered in the name of the Custodian or its
nominee, so that the Fund or its designee may vote, consent or otherwise act.
SECTION 16. COMPENSATION
(a) Each Fund agrees to pay to the Custodian compensation for its
services as set forth in Appendix A hereto, or as shall be set forth in written
amendments to Appendix A approved by the Fund and the Custodian from time to
time.
(b) The Fund shall pay all fees and expenses of any Sub-Custodian
approved by the Fund.
SECTION 17. CORPORATE ACTIVITY
The Custodian will exercise its best efforts to forward to the Fund in a
timely manner all notices of shareholder meetings, proxy statements, annual
reports, conversion notices, call notices, or other notices or written materials
of any kind (excluding share certificates and dividend, principal and interest
payments) sent to the Custodian as registered owner of Securities. Best efforts
as used in this Agreement shall mean the efforts reasonably believed in good
faith by the Custodian to be adequate in the circumstances.
Upon receipt of warrants or rights issued in connection with the assets of
a Fund, the Custodian shall enter into its ledgers appropriate notations
indicating such receipt and shall notify the Fund of such receipt. However, the
Custodian shall have no obligation to take any other action with respect to such
warrants or rights, except as directed in Written or Oral Instructions.
Custodian shall take all reasonable actions, as agreed to by the Trust and
the Custodian, to assist the Trust in obtaining from year to year favorable
opinions from the Trust's independent auditors with respect to the Custodian's
activities hereunder.
-13-
SECTION 18. RECORDS
The Custodian acknowledges and agrees that all books and records maintained
for the Trust or a Fund in any capacity under this Agreement are the property of
the Trust and may be inspected by the Trust or any authorized regulatory agency
at any reasonable time. Upon request all such books and records will be
surrendered promptly to the Trust. The Custodian agrees to make available upon
request and to preserve for the periods prescribed in Rule 31a-2 of the 1940 Act
any records related to services provided under this Agreement and required to be
maintained by Rule 31a-1 under the 1940 Act.
SECTION 19. LIABILITY
The Custodian assumes only the usual duties and obligations normally
performed by custodians of open-end investment companies. The Custodian
specifically assumes no responsibility for the management, investment or
reinvestment of the Securities from time to time owned by the Funds, whether or
not on deposit hereunder. The Custodian assumes no duty, obligation or
responsibility whatsoever with respect to Securities not deposited with the
Custodian.
The Custodian may rely upon the advice of counsel, who may be counsel for
the Trust or for the Custodian, and upon statements of accountants, brokers or
other persons believed by the Custodian in good faith to be expert in the
matters upon which they are consulted. The Custodian shall not be liable for any
action taken in good faith reliance upon such advice or statements. The
Custodian shall not be liable for action taken in good faith in accordance with
any Written or Oral Instructions, request or advice of the Trust or its
officers, or information furnished by the Trust or its officers. The Custodian
shall not be liable for any non-negligent action taken in good faith and
reasonably believed by it to be within the powers conferred upon it by this
Agreement.
No liability of any kind, other than to the Trust or affected Fund, shall
attach to the Custodian by reason of its custody of the Securities and cash held
by the Custodian hereunder or otherwise as a result of its custodianship. In the
event that any claim shall be made against the Custodian, it shall have the
right to pay the claim and reimburse itself from the assets of the Fund;
provided, however, that no such reimbursement shall occur unless the Fund is
notified of the claim and is afforded an opportunity to contest or defend the
claim, if it so elects. A Fund agrees to indemnify and hold the Custodian
harmless for any loss, claim, damage or expense arising out of the custodian
relationship under this Agreement; provided such loss, claim, damage or expense
is not the direct result of the Custodian's negligence or willful misconduct.
SECTION 20. TAXES
The Custodian shall not be liable for any taxes, assessments or
governmental charges that may be levied or assessed upon the Securities held by
it hereunder, or upon the income therefrom. Upon Written or Oral Instruction,
the Custodian may pay any such tax, assessment or charge and reimburse itself
out of the monies of the Fund or the Securities held hereunder.
-14-
SECTION 21. FOREIGN SECURITIES
The Custodian shall be authorized to provide services as an eligible
foreign custodian and act as a foreign custody manager, as those terms are
defined in Rule 17f-5 under the 1940 Act, as amended. The Custodian shall not be
responsible for acting as a foreign custody manager unless and until the
Custodian accepts such delegation of responsibility pursuant to a separate
Delegation Agreement, approved by the Board of Trustees, that describes the
Custodian's duties as a foreign custody manager and identifies the Funds for
which the Custodian will so act.
SECTION 22. SUB-CUSTODIANS
(a) The Custodian may from time to time request appointment of one or
more Sub-Custodians. Upon receipt of Written or Oral Instructions authorizing
the use of a Sub-Custodian, the Custodian shall appoint one or more
Sub-Custodians or Foreign Sub-Custodians of Securities and cash owned by the
Trust from time to time.
(b) The Custodian shall have no liability to the Trust by reason of
any act or omission of any Sub-Custodian approved by the Trust, and the Trust
shall indemnify the Custodian and hold it harmless from and against any and all
actions, suits, claims, losses, damages, costs, charges, counsel fees, payments,
expenses and liabilities arising directly or indirectly out of or in connection
with the performance of any Sub-Custodian approved by the Trust. The Custodian
assigns to the Trust any and all claims for any losses, costs, expenses, or
damages that may be incurred by the Trust by reason of the negligence, gross
negligence or misconduct of any Sub-Custodian approved by the Trust, or by
reason of the failure of a Sub-Custodian approved by the Trust to perform in
accordance with any applicable agreement, including instructions of the
Custodian. The Custodian shall be under no obligation to prosecute or to defend
any action, suit or claim arising out of, or in connection with, the performance
of any Sub-Custodian approved by the Trust, if, in the opinion of the
Custodian's counsel, such action will involve expense or liability to the
Custodian. The Trust shall, upon request, furnish the Custodian with
satisfactory indemnity against such expense or liability, and upon request of
the Custodian, the Trust shall assume the entire defense of any action, suit, or
claim subject to the foregoing indemnity.
With respect to each Sub-Custodian not approved by the Trust, the Custodian
shall be liable to the Trust for any loss which shall occur as a result of the
failure of the Sub-Custodian to exercise reasonable care with respect to the
safekeeping of assets to the same extent that the Custodian would be liable to
the Trust if the Custodian were holding such assets in its own premises. The
Custodian shall be liable to the Trust under this paragraph only to the extent
of the Trust's direct damages, to be determined based on the market value of the
assets which are subject to loss and without reference to any special conditions
or circumstances.
SECTION 22. EFFECTIVENESS, DURATION AND TERMINATION
(a) This Agreement may be executed in more than one counterpart, each
of which shall be deemed to be an original, and shall become effective on the
date hereof. This Agreement
-15-
shall remain in effect for a period of one year from the date of its
effectiveness and shall continue in effect for successive twelve-month periods;
provided that such continuance is specifically approved at least annually by the
Board and by a majority of the Trustees who are not parties to this Agreement or
interested persons of any such party.
(b) This Agreement may be terminated by either party upon notice to
the other. The termination shall become effective at the time specified in the
notice but no earlier than sixty (60) days after the date of the notice. Upon
notice of termination, the Trust shall use its best efforts to obtain a
successor custodian. If a successor custodian is not appointed within ninety
(90) days after the date of the notice of termination, the Board shall, by
resolution, designate the Trust as its own custodian. Each successor custodian
shall be a person qualified to serve under the 1940 Act. Promptly following
receipt of written notice from the Trust of the appointment of a successor
custodian and receipt of Written or Oral Instructions, the Custodian shall
deliver all Securities and cash it then holds directly to the successor
custodian and shall, upon request of the Trust and the successor custodian and
upon payment of the Custodian's reasonable charges and disbursements, (i)
execute and deliver to the successor custodian an instrument approved by the
successor custodian's counsel transferring to the successor custodian all the
rights, duties and obligations of the Custodian, (ii) transfer to the successor
custodian the originals or copies of all books and records maintained by the
Custodian hereunder and (iii) cooperate with, and provide reasonable assistance
to, the successor custodian in the establishment of the books and records
necessary to carry out the successor custodian's responsibilities hereunder.
Upon delivery of the Securities and other assets of the Trust and compliance
with the other requirements of this Section 21, the Custodian shall have no
further duty or liability hereunder. Every successor custodian appointed
hereunder shall execute and deliver an appropriate written acceptance of its
appointment and shall thereupon become vested with the rights, duties and
obligations of the predecessor custodian.
SECTION 23. REQUIRED PERFORMANCE ON FUND BUSINESS DAYS
Nothing contained in this Agreement is intended to or shall require the
Custodian, in any capacity hereunder, to perform any functions or duties on any
day other than a Fund Business Day. Functions or duties normally scheduled to be
performed on any day which is not a Fund Business Day shall be performed on, and
as of, the next Fund Business Day unless otherwise required by law.
SECTION 24. MISCELLANEOUS
(a) This Agreement shall extend to and bind the parties hereto and
their respective successors and assigns; provided, however, that this Agreement
shall not be assignable by the Trust without the written consent of the
Custodian, or by the Custodian without the written consent of the Trust.
Notwithstanding the foregoing, either party may assign this Agreement without
the consent of the other party so long as the assignee is an affiliate, parent
or subsidiary of the assigning party and the assignee of the Custodian is
qualified to serve as custodian under the 1940 Act.
-16-
(b) This Agreement shall be governed by and construed in accordance
with the laws of the State of Minnesota.
(c) The captions inserted herein are for convenience of reference and
shall not affect, in any way, the meaning or interpretation of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed all as of the day and year first above written.
XXXXX FARGO VARIABLE TRUST
By: /s/ C. Xxxxx Xxxxxxx
------------------------------------
C. Xxxxx Xxxxxxx
Secretary
XXXXX FARGO BANK MINNESOTA, N.A.
By: /s/ Xxx Xxxxxxxxxx
------------------------------------
Xxx Xxxxxxxxxx
Executive Vice President
-17-
CUSTODY AGREEMENT
Xxxxx Fargo Variable Trust
Appendix A
For its custodial services, the Custodian shall receive a fee, with respect to
each Fund, except the International Equity Fund, listed below, of 0.02% of the
average daily net assets of each such Fund. The custodial fee for the
International Equity Fund is 0.25%.
Funds of Xxxxx Fargo Variable Trust Covered by This Agreement
1. Asset Allocation Fund*
2. Corporate Bond Fund
3. Equity Income Fund
4. Equity Value Fund
5. Growth Fund
6. International Equity Fund
7. Large Company Growth Fund
8. Money Market Fund
9. Small Cap Growth Fund
* The Board approved, subject to shareholder approval, WCM as the new
sub-adviser to each of the Allocation Funds. Xxxxx Fargo Bank, Minnesota, N.A.
will become custodian only if shareholders approve the new sub-advisory
arrangement.
Approved by the Board of Trustees on March 26, 1999, as amended August 19, 1999,
July 25, 2000, and November 6, 2001.
Most Recent Annual Approval date: August 7, 2001.
A-1
The Funds listed in this Appendix A were last approved by the parties to
this Agreement as of November 6, 2001.
XXXXX FARGO VARIABLE TRUST
By: /s/ C. Xxxxx Xxxxxxx
---------------------------------------
C. Xxxxx Xxxxxxx
Secretary
XXXXX FARGO BANK MINNESOTA, N.A.
By: /s/ P. Xxx Xxxxxxxxxx
----------------------------------------
P. Xxx Xxxxxxxxxx
Executive Vice President
A-2
