Exhibit (g)
CUSTODIAN AGREEMENT
This Custodian Agreement between ARRIVATO Funds Trust, hereinafter
called the Trust,' a Delaware business trust, organized on ____2004 pursuant to
the Trust Instrument, as the same may be amended from time to time and INTRUST
Bank N.A., hereinafter called "INTRUST' or the `Custodian
WITNESSETH:
That in consideration of the mutual covenants and agreements
hereinafter contained, the parties hereto agree as follows:
I. DEFINITION AND EMPLOYMENT OF INTRUST AS CUSTODIAN AND PROPERTY TO HELD
BY IT . The Trust is an open-end investment company organized under the
General Laws of the State of Delaware - For all purposes of this
Agreement, a "Portfolio" shall mean a separate portfolio of assets of the
Trust. The current portfolios are Arrivato Dow Xxxxx U.S. 2010 Fund,
Arrivato Dow Xxxxx U.S. 2015 Fund, Arrivato Dow Xxxxx U.S. 2020 Fund,
Arrivato Dow Xxxxx U.S. 2030 and Arrivato Dow Xxxxx U.S. 2040 Fund. For
purposes of this agreement, the term "Portfolio Shares shall be deemed to
refer to the shares of beneficial interest which are offered for each
Portfolio, and the term "Adviser" shall be deemed to refer to the
investment adviser of the Trust. The Trust hereby employs INTRUST as the
Custodian of the assets of each Portfolio. In the event the Trust
establishes one or more portfolios other than the Portfolios with respect
to which the Trust decides to retain the Custodian to act as custodian
hereunder, the Trust shall so notify the Custodian in writing. If the
Custodian is willing to render such services, the Custodian shall promptly
notify the Trust in writing whereupon such portfolio shall be deemed to be
a Portfolio hereunder. The Trust agrees to deliver to the Custodian all
securities other than securities issued by the Trust (the "Portfolio
securities") and cash owned by the Trust for the account of each
Portfolio, and all payments of income, payments of principal or capital
distributions received by the Trust with respect to all securities owned
by the Trust for the account of each Portfolio from time to time, and the
cash consideration received by the Trust for Portfolio Shares which may be
issued or sold from time to time. The Custodian shall not be responsible
for an property of the Trust held or received by the Trust and not
delivered to the Custodian.
The Custodian may from time to time employ one or more
sub-custodians. The terms of each sub-custodian agreement shall be
approved by a vote of the Trustees of the Trust. Each sub-custodian
agreement shall specify the same standard of care as is set forth in this
Agreement.
II. DUTIES OF THE CUSTODIAN WITH RESPECT TO PROPERTY OF THE TRUST HELD BY THE
CUSTODIAN
A. Holding Securities. The Custodian shall hold earmark and
physically segregate for the account of each Portfolio all non-cash property
delivered to it, including all securities owned by each Portfolio, other than
securities which are maintained pursuant to Section L of this Article II in a
clearing agency which acts as a securities depository or in a book-entry system
authorized by the U.S. Department of the treasury, collectively referred to
herein as a "Securities system".
B. Delivery of Securities The Custodian shall release and deliver
securities owned by each Portfolio held by the Custodian or in a Securities
System account of the Custodian only upon receipt of proper Instructions (as
defined below in Section P of this Article II), which may be continuing
instructions when deemed appropriate by the Trust and the Custodian, and only in
the following cases:
(1) Except in the case of a sale effected through a securities
System, upon sale of such securities for the account of xxxxx Portfolio and
receipt of payment therefor;
(2) Upon the receipt of payment in connection with any
repurchase agreement related to such securities entered into by a Portfolio;
(3) In the case of a sale effected through a Securities
System, in accordance with the provisions of Section L hereof;
(4) To the transfer or forwarding agent in connection with
tender or other similar offers for Portfolio Securities of each Portfolio;
(5) To the issuer thereof or its agent when such Portfolio
Securities are called, redeemed, retired or otherwise become payable provided
that, in any such case, the cash or other consideration is to be delivered to
the Custodian;
(6) To the issuer thereof, or its agent, for transfer into the
name of a Portfolio or into the name of any nominee or nominees of the Custodian
or into the name or nominee name of any agent appointed pursuant to Section K of
this Article II or into the name or nominee name of any sub-custodian appointed
pursuant to Article I; or for exchange for a different number of bonds,
certificates or other evidence representing the same aggregate face amount or
number of units; provided that, in any such case, the new securities are to be
delivered to the custodian;
(7) Upon the sale of such securities for the account of a
Portfolio, to the broker or its clearing agent against a receipt for examination
in accordance with "street delivery" custom;
(8) For exchange or conversion pursuant to any plan of merger,
consolidation. recapitalization, reorganization or readjustment of the
securities of the issuer, or pursuant to provisions for conversion contained in
such securities, or pursuant to any deposit agreement; provided that, in any
such case, the new securities and cash, if any, are to be delivered to the
Custodian;
(9) In the case of warrants, rights or similar securities, the
surrender thereof in the exercise of such warrants, rights or similar securities
or the surrender of interim receipts or temporary securities for definitive
securities; provided that, in any such case, the new securities and cash, if
any, are to be delivered to the Custodian;
(10) For delivery in connection with any loans of securities
made by a Portfolio but only against Proper Instructions Iron' the Pax1viser,
against receipt of the designated collateral, which may be in the form of cash
or obligations issued by the United States Government its agencies or
instrumentalities;
(11) For delivery as security in connection with any
borrowings by a portfolio requiring a pledge of assets by such Portfolio, but
only against receipt of amounts borrowed; -
(12) Upon receipt of instructions for the transfer agent for
the Trust, for delivery to such transfer agent or to holders of Portfolio Shares
in connection with distributions in kind in satisfaction of requests by holders
of Portfolio Shares for repurchase or redemption;
(13) For delivery in accordance with the provisions of any
agreement among the Portfolio, the Custodian and a brokerdealer registered under
the Securities Exchange Act of 1334 (the "Exchange Act") and a member of The
National Association of Securities Dealers, Inc. (the "NASD') relating to
compliance with the rules of The Options Clearing Corporation and of any
registered national security exchange, or of any similar organization or
organizations. regarding escrow or Other arrangements in connection with
transactions by the Portfolio;
(14) For delivery in accordance with the provisions of any
agreement among the Portfolio, the Custodian, 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 Portfolio; and
(15) For any other proper corporate purposes, but only upon
receipt of, in addition to Proper Instructions, a notification signed by two
officers of the Trust and certified by the Secretary or an Assistant Secretary o
the Trust, specifying the securities to be delivered, setting forth the purposes
for which such delivery is to be made, declaring such purposes to be proper
corporate purposes, and naming the person or persons to whom delivery of such
securities shall be made declaring such purposes to be proper corporate
purposes, and naming the person or persons to whom delivery of such securities
shall be made.
C. Registration of Securities. Securities held by the Custodian
(other than bearer securities) shall be registered in the name of a Portfolio or
in the name of any nominee of the Custodian, or in the name or nominee name of
any agent appointed pursuant to Section K of Article II hereof or in the name or
nominee name of any sub-custodian appointed pursuant to article I - All
securities accepted by the Custodian on behalf of a Portfolio under the terms of
this Contract shall be in "street" or other good delivery form.
D. Bank Accounts. The Custodian shall open arid maintain a separate
bank account or accounts in the name of each Portfolio. subject only to draft or
order by the Custodian acting pursuant to the terms of this contract, and shall
hold in such account or accounts, subject to the provisions hereof, all cash
received by it from or for the account of each Portfolio, other than cash
maintained by each Portfolio in a bank account established and- used in
accordance with Rule 17f-3 under the Investment Company Act of 1940. Funds held
by the Custodian for each portfolio may be deposited by it to its credit as
Custodian in the commercial banking side of the Custodian or in such other banks
or trust companies as it may in its discretion deem necessary or desirable;
provided, however, that every such bank or trust company shall be qualified to
act as a custodian under the Investment Company Act of 1940 and that each such
bank or trust company and the funds to be deposited with each such bank or trust
company shall be approved by vote of a majority of the Trustees of the Trust.
Such funds shall be deposited by the Custodian in its capacity as Custodian and
shall be withdrawable by the Custodian only in that capacity.
E. Payment for Portfolio Shares. The Custodian shall receive from
the distributor of each Portfolio's Portfolio Shares or from the transfer agent
of the Trust and deposit into each Portfolios account such payments as are
received for Portfolio Shares of each Portfolio issued or sold from time to time
by such portfolio. The custodian will provide timely notification to each
portfolio and the transfer agent of any receipt by it of cash payments for
Portfolio Shares of such Portfolio.
F. Availability of Federal Funds. Upon mutual agreement between each
Portfolio and the Custodian, the Custodian shall, upon the receipt of Proper
Instructions and in accordance with the agreed deadlines, which may be
continuing instructions when deemed appropriate by the parties, make federal
funds available to each Portfolio as of specified times agreed upon from time to
time by such Portfolio and the Custodian in the amount of checks received in
payment for Portfolio Shares of each Portfolio which are deposited into such
Portfolio's account.
G. Collection of Income. The Custodian shall collect on a timely and
reasonable basis, all income and other payments with respect to registered
securities held hereunder to which each portfolio shall be entitled either by
law or pursuant to custom in the securities business and shall collect on a
timely and reasonable basis all income and other payments with respect to bearer
securities If, on the date of payment by the issuer, such securities are held by
the Custodian or agent thereof and shall credit such income, as collected, to
such Portfolio's Custodian account. Without limiting the generality of the
foregoing, the Custodian shall detach and present for payment all coupons and
other income items requiring presentation as and when they become due and shall
collect interest when due on securities held hereunder. The Custodian's
obligations
under this Section II.G. shall be to take all reasonable and customary steps to
collect such income and payments, and the Custodian shall bear no responsibility
for its failure to make collections beyond the exercise of such reasonable and
customary steps.
J. Payment of Portfolio Monies. Upon receipt of Proper -
Instructions, which may be continuing instructions when deemed appropriate by
the parties, the Custodian shall pay out monies to a Portfolio in accordance
with its usual and customary business practice, in the following cases only:
(1) Upon the purchase of Securities for the account of a Portfolio but
only (a) against the delivery of such securities to the Custodian (or any bank,
banking firm or trust company doing business in the United States or abroad
which is qualified under the Investment Company Act of 1940, as amended, to act
as custodian and has been designated by the Custodian as its agent for this
purpose) registered in the name of such Portfolio or in the name of a nominee of
the Custodian referred to in Section C. of Article XI hereof or in proper form
for transfer; (b) in the case of a purchase effected through a Securities
System, in accordance with the conditions set forth in Section L of Article II
hereof, or (c) in the case of repurchase agreements, (i) against delivery of
securities either in certificate torn or through an entry crediting the
Custodian account at the Federal Reserve Bank with such securities, or (iii
against delivery of the receipt evidencing purchase by the Portfolio of
securities owned by the Custodian along with written evidence of the agreement
by the Custodian to repurchase such securities from the Portfolio;
(2) In connection with conversion, exchange or surrender of securities
owned by a Portfolio as set forth in Section B of Article II hereof;
(3) For the redemption or repurchase of Portfolio Shares as set forth in
Section J of Article II hereof;
(4) For the payment of any expense or liability incurred by a Portfolio,
including but not limited to the following payments for the accounts of such
Portfolio: interest, taxes, management, administration, accounting, transfer
agent and legal fees, and operating expenses of such Portfolio whether or not
such expenses are to be in whole or in part capitalized or treated as deferred
expenses;
(5) For the payment of any dividends declared pursuant to the governing
documents of a Portfolio; and
(6) For any other proper corporate purposes, but only upon receipt of in
addition to Proper Instructions, a notification signed by two officers of the
Trust and certified by its Secretary or an Assistant Secretary of the Trust,
specifying the amount of such payment, setting forth the purpose of which such
payment is to be made, declaring such purpose to be a proper corporate purpose,
and naming the person or persons to whom such payment is to be made.
I. Liability for Payment in Advance of Receipt of Securities
Purchased. In any and every case where payment for purchase of securities for
the account of a Portfolio is made by the Custodian in advance of receipt of the
securities purchased in the absence of specific written instructions from such
Portfolio to so pay in advance, the Custodian shall be absolutely liable to such
Portfolio for such securities to the same extent as if the securities had been
received by the Custodian. -
J. Payments for Repurchases or Redemptions of Portfolio Shares of
the Trust. The custodian shall upon instruction from the distributor or transfer
agent deposit into the account of the appropriate Portfolio such payments as are
received for Shares of that Portfolio issued or sold from time to time by the
Portfolio. The Custodian will provide timely notification to the Portfolio and
the transfer agent of any receipt by it of payments for Shares of such
Portfolio.
From such funds as may be available for the purpose but subject to the
limitations of the Trust Instrument and any applicable votes of the Board of
Trustees of the Trust pursuant thereto, the Custodian shall, upon receipt of
Proper Instructions from the transfer agent, make funds available for payment to
holders of Shares who have delivered to the transfer agent a request for
redemption or repurchase of their Shares. In connection with the redemption or
repurchase of Shares of a Portfolio, the Custodian is authorized upon receipt of
instructions from the transfer agent to wire funds to the transfer agent for
payment by the transfer agent or through a commercial bank designated by the
redeeming shareholders.
In connection with the redemption or repurchase of Shares of the
Portfolio, the Custodian shall honor checks drawn on the Custodian by a holder
of Shares, which checks have been furnished by the Trust to the holder of
Shares, when presented to the Custodian in accordance with such procedures and
controls as are mutually agreed upon from time to time between the trust and the
Custodian.
K. Appointment of Agents. Subject to prior approval by the Board of
Trustees of the Trust, the Custodian may at any time appoint any other bank or
trust company which is itself qualified under the Investment Company Act of
1940, as amended, to act as a custodian, as its agent to carry out such of the
provisions of this Article II as the Custodian may from time to time direct.
L. Deposit of Portfolio Assets in a Securities Systems. The
Custodian may deposit and/or maintain securities owned by each Portfolio in a
clearing agency registered with the Securities and Exchange Commission under
Section ilk of the Securities Exchange Act of 1934, which acts as a securities
depository, or in the book-entry system authorized by the U.S. Department of
Treasury and certain federal agencies, collectively referred to herein as a
"Securities system" in accordance with applicable Federal Reserve Board and
Securities and Exchange Commission rules and regulations, if any, and subject to
the following provisions:
(1) The Custodian may keep securities of each Portfolio in a Securities
System provided that such securities are represented in an account (the
"Account") of the Custodian in a Securities System which shall not include any
assets of the Custodian other than assets held as a fiduciary, custodian or
otherwise for customers;
(2) The records of the Custodian with respect to securities of each
Portfolio which are maintained in its Securities System shall identify by
book-entry those securities belonging to each Portfolio;
(3) The Custodian shall pay for securities purchased for the account of
each Portfolio upon (i) receipt of advices from a Securities System that such
securities have been transferred to the Account, and (ii) the making of an entry
on the records of the Custodian to reflect such payment and transfer for the
account of each Portfolio The Custodian shall transfer securities sold for the
account 6f each Portfolio upon U) receipt of advices front a Securities -System
that payment for such securities has been transferred to the Account, and (ii)
the making of an entry on the records of the Custodian to reflect such transfer
and payment for the account of such Portfolio. Copies of all advices from its
Securities System at transfers of securities for the account of each Portfolio
shall be maintained for such Portfolio by the Custodian and be provided to such
Portfolio at its request. The Custodian shall furnish each Portfolio
confirmation at each transfer to or from the account of such Portfolio in the
form of copies of daily transaction advices reflecting each day's transactions
in its Securities System for the account of such Portfolio on the next business
day, which daily transaction advices may be provided by electronic means;
(4) The Custodian shall have received the initial or annual certificate,
as the case may be, required by Article X hereof;
(5) The custodian shall provide each Portfolio With any report obtained by
the Custodian on its Securities System's accounting system, internal accounting
control and procedures for safeguarding securities deposited in its Securities
System;
(6) Anything to the contrary in this Agreement notwithstanding, the
Custodian shall be liable to each Portfolio for any loss or damage to such
Portfolio resulting from use of its Securities system by reason of any acts of
negligence. misfeasance or misconduct of the Custodian or of any of its
employees or from any failure of the Custodian or any such agent to make
reasonable efforts to enforce effectively such rights as it may have against a
Securities System; at the election of each Portfolio, it shall be entitled to be
subrogated to the rights of the custodian with respect to any claim against a
Securities System or any other person which the Custodian may have as a
consequence of any such loss or damage if and to the extent that a Portfolio has
not been made whole r- for any such loss or damage.
M. Ownership Certificates for Tax Purposes. The Custodian shall
execute ownership and other certificates and affidavits for all federal and
state tax purposes in connection with receipt of income or other payments with
respect to securities of each Portfolio held by it and in connection with
transfers of Securities.
N. Proxies. The Custodian shall, with respect to the securities held
by it
hereunder, cause to be promptly executed by the registered holder of such
securities, if the securities are registered otherwise than in the name of a
Portfolio, all proxies, without indication of the manner in which such proxies
are to be voted, and shall promptly deliver to the Adviser such proxies, all
proxy soliciting materials and all notices relating to such Securities.
O. Communications Relating to Portfolio Securities. The Custodian
shall transmit promptly to the Adviser all written information (including,
without limitation, pendency of calls and maturities of securities and
expirations of rights in connection therewith) received by the Custodian from
issuers of the securities being held for such Portfolio.
(1) Notwithstanding any provision hereunder to the contrary,
with respect to Securities which possess so-called put options or similar
characteristics which grant the Trust the option to redeem such Securities prior
to their maturity date (the Put Option securities"), including, but not limited
to, so-called put bonds, the Custodian shall not have any liability with respect
to the exercise or non-exercise of any such Put Option, except that:
(a) With respect to put options which are exercisable semiannually or less
frequently than semiannually, and where such Put Option Security is
actually delivered to the Custodian not less than fifteen business days
prior to the put option exercise date, the Custodian will use its best
efforts to notify the Trust and the Adviser of such put options where
correct and timely notification is published in the publications or
services (the "Notification Sources") the Custodian routinely uses for
this purpose, or as to which the Custodian receives timely notice from the
Trust;
(b) Once notified, the Trust must direct the exercise or non-exercise of
such put option by written instrument delivered to the custodian not less
than five business days prior to the put option exercise date;
(c) For the purposes of this Section 0(1), a "business day' is a day on
which the Custodian is open for business under the laws of the State of
New York the Notification Sources include, but are not limited to The Wa1l
Street Journal and/or Depository Trust Company of New York. The Custodian
reserves the right to utilize other Notification Sources or discontinue
any of the aforementioned Notification Sources at any time and without
notice. The Custodian will not notify the Trust of put options exercisable
more frequently that semiannually
(2) With respect to tender or exchange offers, the Custodian shall
transmit promptly to the Adviser all written information received by the
Custodian from issuers of the securities whose tender or exchange is sought and
from the party (or his agents) making the tender or exchange offer. If the
Adviser desires to take action with respect to any tender offer, exchange otter
or any other similar transaction, the Adviser shall notify the Custodian at
least three business days prior to the date on which the custodian is to take
such action
P. Proper Instructions "Proper Instructions" as used throughout this
Article II means a writing signed or initialed by one or more person or persons
and in the manner as the Trustees, the Adviser or the transfer agent, as the
case may be, shall have authorized from time to time. Each such writing shall
set forth the transaction involved, including a specific statement of the
purpose of which such action is requested. The Custodian may also accept and
rely on instructions transmitted by the Trust or the Trust's authorized agent
including the Adviser, whether given orally, by telephone, cable or telex,
facsimile transmission or other electronic means which the Custodian reasonably
believes to be genuine Oral instructions will be considered Proper Instructions
if the Custodian believes them to have been given by a person authorized to give
such instructions with respect to the transaction involved. The Trust and the
Adviser shall cause all oral instructions to be confined in writing. Written
confirmation of oral instructions shall in no way affect any action the
custodian takes in reliance upon the oral instructions. Upon receipt of a
certificate of the Secretary or an Assistant Secretary as to the authorization
by the Trustees of the Trust accompanied by a detailed description of procedures
approved by the Trustees, Proper Instructions may include communications
effected directly between electromechanical or electronic devices provided that
the Trustees and the Custodian agree that such procedures afford adequate
safeguards for each Portfolio's assets.
Q. Actions Permitted without Express Authority. The Custodian may in
its discretion, without express authority from each Portfolio:
(1) Make payments to itself or others for minor expenses of
handling securities or other similar items relating to its duties under this
Agreement, provided that all such payments shall be accounted for to each
Portfolio, such expenses shall include, but not be limited to postage, shipping,
courier, wire transfers, expenses to enforce any obligation of any agent,
sub-custodian or Securities System and other out-of-pocket expenses not assumed
by the Custodian pursuant to this Agreement;
(2) Surrender securities in temporary form in exchange for
securities in definitive form;
(3) Endorse for collection, in the name of each Portfolio,
checks, drafts and other negotiable instruments; and
(4) In general, attend to all non-discretionary details in
connection with the sale, exchange, substitution, purchase, transfer and other
dealings with the securities and property of each Portfolio except as otherwise
directed by the Board of Trustees of the Trust.
R. Evidenceof Authority The Custodian shall be protected in acting
upon any Proper Instructions whether oral or in writing, and any notice,
request, consent, certificate or other instrument or paper believed by it to be
genuine and to have been properly executed by or on behalf of a Portfolio The
Custodian may receive and accept a certificate copy of a vote of the Board of
Trustees of the Trust as conclusive evidence (a) of the authority of any person
to act in. accordance with such vote, or (b) of any determination or at any
action by the Board of Trustees pursuant to the Trust Instrument as described in
such vote, and such vote may be considered as in
full force and affect until receipt by the Custodian or written notice to the
contrary.
S. No Liability Until Receipt The Custodian shall not be liable for,
or considered to be the Custodian of, any money whether or not represented by
any check, draft, or other instrument for the payment of money, or any
securities received by it on behalf of any Portfolio until the Custodian
actually receives and collects such money or securities directly or by the final
crediting of the Account representing the Portfolio's interest in a Securities
System, or a subcustodian.
T. Segregated Accounts - The Custodian shall upon receipt of Proper
Instructions establish and maintain a segregated account or accounts for and on
behalf of a Portfolio, into which account or accounts may be transferred cash
and/or securities, including securities maintained in an account by the
Custodian in a Securities System or with a subcustodian, (i) in accordance with
the provisions at any agreement among the Trust, the Custodian 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 Commodity Futures Trading
Commission or any registered contract market) or of any similar organization or
organizations, regarding escrow or other arrangements in connection with
transactions by such Portfolio. (ii) for purposes of segregating cash or
government securities in connection With options purchased, sold or written by
such Portfolio or commodity futures contracts or options thereon purchased of
sold by such Portfolio, (iii) for the pur-pose of compliance by such Portfolio
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, and (iv) for other corporate purposes.
III. DUTIES OF CUSTODIAN WITH RESPECT TO BOOKS OF ACCOUNT AND CALCULATION OF NET
ASSET VALUE AND NET INCOME. The Custodian shall cooperate with and supply
necessary information to the entity or entities appointed by the Trustees to
keep the books of account of each Portfolio, compute the net asset value per
share of the outstanding shares of each Portfolio and compute the daily net
income of each Portfolio.
IV. RECORDS - The Custodian shall create and maintain all records relating to
its activities and obligations under this Agreement in such manner as will meet
the obligations of each Portfolio under the Investment Company Act of 1940,
including, but not limited to Section 31 thereof and Rules 31a-1 and 31a-2
thereunder, applicable federal and state tax laws and any other law or
administrative rules or procedures which may be applicable to each Portfolio.
All such records shall be available to each Portfolio and shall at all times
during the regular business hours of the Custodian be open for inspection by
duly authorized officers, employees or agents of each Portfolio and employees
and agents o the Securities and Exchange Commission. The Custodian shall, at
each Portfolio's request, supply such Portfolio with a tabulation of securities
owned by such Portfolio and held by the custodian and shall, when requested to
do so by a Portfolio and for such compensation as shall be agreed upon between
such Portfolio and the Custodian, include certificate numbers in such
tabulations.
V. OPINION OF TRUST'S INDEPENDENT PUBLIC ACCOUNTANTS. The Custodian shall take
all reasonable action, as the Trust may from time to time request, to obtain
from year to year favorable opinions from the Trust's independent public
accountants with respect to its activities hereunder in connection with the
preparation of the Trust's Form N-lA and the Trust's Form N-SAR or other annual
reports to the Securities and Exchange Commission and with respect to any other
requirements of such Commission.
VI - REPORTS TO EACH PORTFOLIO BY INDEPENDENT ACCOUNTANTS. The Custodian shall
provide each Portfolio, at such times as each Portfolio may reasonably require
and at the Portfolio's expenses. with reports by independent public accountants
on the accounting system, internal accounting control and procedures for
safeguarding securities, including securities deposited and/or maintained in a
securities system, relating to the services provided by the Custodian under this
Agreement; such reports, which shall be of sufficient scope and in sufficient
detail, as may reasonably be required by each Portfolio, to provide reasonable
assurance that any material inadequacies disclosed by such examination, and, if
there are no such inadequacies, shall so state.
VII. COMPENSATION OF CUSTODIAN. The Custodian shall be entitled to reasonable
compensation for its services as Custodian, as set forth in the Supplements to
this Agreement.
VIII. RESPONSIBILITY OF CUSTODIAN. The Custodian shall not be responsible for
the title, validity or genuineness of any property or evidence of title thereto
received by it or delivered by it pursuant to this Agreement and shall be held
harmless in acting upon any notice, request, consent, certificate or other
instrument believed by it to be genuine and to be signed by the proper party or
parties.
The Custodian shall be entitled to rely on and may act upon advice of
counsel (who may be counsel for the Trust) on all matters, and shall be without
liability for any action taken or omitted by it in good faith in accordance with
such advice. Notwithstanding the foregoing, the responsibility of the Custodian
with respect to redemptions effected by check may be set forth in a separate
agreement entered into between the Custodian, a Portfolio and the Adviser.
In carrying out the provisions of this Agreement the Custodian shall not
be held liable for any act or failure to act which shall constitute the exercise
of reasonable care, or is in accordance with industry standards and practice.
Each Portfolio shall indemnify the custodian and hold it harmless from and
against all claims, liabilities, and expenses (including attorneys' fees) which
the Custodian may suffer or incur on account of being Custodian hereunder except
such claims, liabilities and expenses arising from the Custodian's own acts or
omissions to act which shall fail to meet the foregoing standard of care.
If a Portfolio requires the Custodian to take any action with respect to
securities, which action involves the payment of money or which action may, in
the opinion of the Custodian result in the Custodian or its nominee assigned to
such Portfolio being liable for the payment of money or incurring liability of
some other form, such Portfolio, as a prerequisite to requiring the Custodian to
take such action, shall provide indemnity to the Custodian in an amount and form
satisfactory to it.
If a Portfolio requires the Custodian to advance cash or securities for
any purpose or in the event that the Custodian or its nominee shall incur or be
assessed any taxes, charges, expenses, assessments, claims or liabilities in
connection with the performance of this Agreement, except such as may arise from
the Custodian's Own acts or Omissions to act in the absence of reasonable care
and in ao manner that is not consistent with industry standards and xxxxxxxx0
any property at any time held for the account of such Portfolio shall be
security therefor and should such Portfolio sail to repay the Custodian
promptly, the Custodian shall be entitled to utilize available cash and to
dispose of such Portfolio' s -assets to the extent necessary to obtain
reimbursement -
IX. FUNDS TRANSFERS. For the purposes of this Section IX, "funds transfer"
shall mean a series of transactions, beginning with a payment order of an
originator made for the purpose of making payment to the beneficiary of such
order (such beneficiary is referred to as the `beneficiary) but does not include
debit transfer made through the automated clearing house system or transfers
governed by the Federal Electronic Funds Transfer Act and put order shall mean
an instruction transmitted orally, electronically, or in writing to pay a fixed
or determinable amount to a beneficiary.
In accepting any payment order directing payment from the account of a
portfolio to a beneficiary the Custodian and the beneficiary's bank may rely
solely upon any account number or similar identifying number such Portfolio has
provided to identify (i) the beneficiary, (ii) the beneficiary's bank, or (iii)
an intermediary bank to be used in executing such payment order. A Portfolio
shall be required to pay the Custodian and the Custodian is authorized to charge
the account of such Portfolio for any funds transfer made by the Custodian at
the direction of such Portfolio utilizing any such identifying numbers even
where their use may result in a person other than the beneficiary being paid or
the transfer of funds to a bank other than the beneficiary's bank or an
intermediary bank other than that intended. In sending any payment order the
Custodian may send only the account number (or similar identifying number) and
the bank identification number provided.
When the Custodian receives a payment order to which a Portfolio is the
beneficiary in may credit the proceeds of that order solely on the basis of the
account number (or similar identifying number) contained in such payment order.
If any payment order is transmitted through any funds transfer system
including, but, not limited to the Clearing House Interbank Payment System
CHIPS) or the automated clearing house system (ACH), a Portfolio shall be
subject to the rules of such funds transfer system in effect at the time that
such transfer is made. Any provisional credit granted on any ACH credit entry
may be reversed by the Custodian if final settlement does not occur.
Should the Custodian be required to pay a Portfolio any interest in
:connection with a payment order (whether as the originator or the beneficiary)
such interest shall be computed based on the Rules on Interbank Compensation
then in effect in The New York Clearing House Association.
In executing any payment order the Custodian may use the services of
correspondent and intermediary banks, funds transfer systems, telecommunication
companies and other entities of similar purpose. Such entities shall not be
deemed the Custo3ian's agents, and the custodian will not be responsible for
their acts or omissions with regard to any payment orders in the absence of the
exercise of reasonable care as is consistent with industry standards and
practice on the part of the Custodian.
X. EFFECTIVE PERIOD - TERMINATION AND AMENDMENT.
a) Subject to prior termination as provided in paragraph (d) of this
Section X. this Agreement shall continue in force for two (2) years from, the
date hereof and indefinitely thereafter, but only so long as the continuance
shall be specifically approved at least annually by vote of the Trust's Board of
Trustees or by vote of a majority of the outstanding voting securities of the
Trust;
(b) This Agreement may be modified by mutual consent;
(c) In addition to the requirements of sub-paragraph (a) of this Section
X, the terms of any continuance or modification of the Agreement must have been
approved by the vote of a majority of those Trustees of the Trust who are not
parties to such Agreement or interested persons of any such party. cast ia
person at a meeting called for the purpose of voting on such approval; and
(d) Either party hereto may, at any time, on sixty (60) days' prior
written notice to the other, terminate this Agreement. without payment of any
penalty, provided however that the Trust shall only do so by action of its Board
of Trustees, or by vote of a majority of its outstanding voting securities This-
Agreement shall terminate automatically in the event of its assignment.
The Custodian shall receive an initial certificate from the Trust that the
Trustees of the Trust have approved the initial use of a particular Securities
System and an annual certificate reporting that the Trustees, as required by
Rule l7f-4 under the Investment Company Act of 1940, as amended, have reviewed
the use by each Portfolio of such Securities System; further the Trust shall not
amend. or terminate the Agreement in contravention of any applicable federal or
state regulations, or any provision of the Trust Instrument; and the Trust may
at any time by action of its Trustees (i) substitute another bank or trust
company for the Custodian by giving notice as described above to the custodian,
or (ii) immediately terminate this Agreement in the event of the appointment of
a conservator or receiver for the Custodian by the appropriate banking
authorities or upon the happening of a like event at the direction of an
appropriate regulatory agency or court of competent jurisdiction.
Upon termination of the Agreement, the Trust shall pay to the Custodian
such compensation as may be due as of the date of such termination and shall
likewise reimburse the custodian for its costs, expenses and disbursements,
including any , expanses and disbursements incurred in performing the
obligations set forth in Section XI hereof.
If this Agreement is terminated with respect to any Portfolio, it shall
nonetheless remain in effect with respect to any remaining Portfolio.
XI SUCCESSPR CUSTODIAN If a successor custodian is appointed by the
Trustees of the Trust, the custodian shall, upon termination, deliver to such
successor custodian at the office of the custodian, duly endorsed and in the
form for transfer, all securities and other assets of each Portfolio then held
by it hereunder. The Custodian shall also deliver to such successor custodian
copies of such books and records relating to each Portfolio including but not
limited to the records required to be maintained by the Custodian in accordance
with the Investment Company Act of 1940.
If no such successor custodian is appointed, the Custodian shall, in like
manner, upon receipt of a certified copy of a vote of the Trustees of the Trust,
deliver at the office of the Custodian such securities, funds and other
properties in accordance with such vote.
In the event that no written order designating a successor custodian
or certified copy of a vote of the Board of Trustees shall have been delivered
to the Custodian on or before the date when such termination shall become
effective, then the Custodian shall have the right to deliver to a bank or trust
company of its own selection, having an aggregate capital, surplus, and
undivided profits, as shown by its last published report, of not less than
$25,000,000, all securities, funds and other properties held by the Custodian
and all instruments held by the Custodian relative thereto and all other
property held by it under this Agreement. Thereafter, such bank or trust company
shall be the successor of the Custodian under this Agreement.
In the event that securities, funds and other properties remain in
the possession of the Custodian after the date of termination hereof owing to
failure of the Trust to procure the certified copy of a vote of the Board of
Trustees to appoint a successor custodian, the Custodian shall be entitled to
fair compensation for its services during such period as the Custodian retains
possession of such securities, funds and other properties and the provisions of
this Agreement relating to the duties and obligations of the Custodian shall
remain in full force and effect.
XII. INTERPREITIVE AND ADDITIONAL PROVISIONS. In connection with the
operation of this Agreement, the Custodian and the Trust may from time to time
agree on such provisions interpretive of or in addition to the provisions of
this Agreement as may in their joint opinion be consistent with the general
tenor of this Agreement. Any such interpretive or additional provisions shall be
in writing signed by both parties and shall be annexed hereto, provided that no
such interpretive or additional provisions shall contravene any applicable
federal or state regulations or any provision of the trust Instrument of the
Trust. No interpretive or additional provisions made as provided in the
preceding sentence shall be deemed to be an amendment to this Agreement.
XXIII. TRUSTEES. All references to actions of or by Trustees of the Trust
shall require action by such Trustees acting as a Board or formally constituted
group and not individually.
XIV. APPLICABLE LAW. This Agreement shall be construed and the provision
thereof interpreted under and in accordance with the laws of New York. The name
ARRIVATO FUNDS TRUST is the designation by the trustees under the Trust
Instrument, dated _____________ as amended, and all persons dealing with the
Trust must look solely to the Toast property for the enforcement of any claims
against the Trust as neither any or all of the Trustees, officers, or agents,
nor any or all of the shareholders assume(s) any personal liability for
obligations entered into on behalf of the Trust
IN WITNSSS WHEREOF, the parties have duly executed this Agreement as of
the day and year first above written.
ARRIVATO FUNDS TRUST
By:________________________________
Title:
INTRUST BANK N.A.
By:________________________________
Name:
Title: