EXHIBIT 99.g11
THIRD-PARTY CUSTODIAL AGREEMENT
Agreement dated March 31, 2006, by and among American Century Mutual Funds, Inc.
on behalf of each series listed on Schedule 1 attached hereto, as amended from
time to time, each severally but not jointly a customer ("Customer"), X.X.
Xxxxxx Futures Inc. ("Broker") and State Street Bank and Trust Company ("Bank"),
hereinafter collectively known as the "Parties".
WHEREAS, Customer has opened one or more accounts (the "Futures Account" or
"Futures Accounts") with Broker, a Futures Commission Merchant registered as
such with the Commodity Futures Trading Commission, for the purpose of trading
financial futures contracts and options ("Contracts"); and
WHEREAS, the rules and regulations of the Chicago Mercantile Exchange, the Board
of Trade of the City of Chicago, the Commodity Exchange, Inc. and such other
exchanges on which Broker may execute, or cause to be executed, Contracts for
Customer ("Exchange" or "Exchanges") may require the Customer to deposit with
Broker certain margin with respect to each Contract; and
WHEREAS, Broker understands that Customer and Bank have agreed that Customer has
opened and maintains with Bank custody accounts subject to a Custodian Agreement
between Customer and Bank (the "Custodian Agreement"), such accounts to be
further subject to the terms of this Agreement ("Safekeeping Account" or
"Safekeeping Accounts").
THEREFORE, it is agreed as follows:
1. As used herein the following terms shall have the following meanings:
"Instruction" shall mean a request, direction or certification delivered or
transmitted to Bank either orally or in writing by way of telex, telegraph
or similar facsimile sending device given (i) for and on behalf of Broker
by a person so authorized, as certified in writing to Bank by an officer of
Broker on Appendix A attached hereto, or (ii) for and on behalf of Customer
by a person so authorized, as provided in the Custodian Agreement or as
certified on Appendix B attached hereto. Any Instructions given orally
shall govern notwithstanding any inconsistent terms contained in any
written confirmation thereof and Bank shall be entitled to rely on any oral
instructions.
"Notice" shall mean a notice transmitted or delivered by a person either
orally or in writing by way of telex, telegraph, similar facsimile sending
device or hand delivery to (i) in the case of Notice to Customer, a person
designated by Customer in writing (on Appendix B attached hereto) as
eligible to receive such notice or, in the event no such person is
available, to any officer of Customer and (ii) in the case of Notice to
Bank, a person designated by Bank in writing as eligible to receive such
notice or, in the event no such person is available, to any officer in the
American Century Mutual Funds, Inc.'s operations group of Bank; PROVIDED,
that any oral notice to Customer given pursuant to Section 10(b) hereof
shall be followed promptly by a written confirmation thereof and that any
oral notice given to Bank is confirmed promptly in writing; and (iii) in
the case of Notice to Broker, a person designated by Broker in writing (on
Appendix A attached hereto) as eligible to receive such notice.
2. Bank and Customer agree to maintain two Safekeeping Accounts at Bank, which
shall be sub-accounts of the Customer's custody account with the Bank to be
entitled "X.X. Xxxxxx Futures Inc. Customer Segregated Account for the
Benefit of *[NAME OF EACH CUSTOMER SERIES LISTED ON SCHEDULE 1]", for
transactions on U.S. exchanges; the other to be entitled, "X.X. Xxxxxx
Futures Inc. Customer Secured Account for the Benefit of *[NAME OF EACH
CUSTOMER SERIES LISTED ON SCHEDULE 1]" for transactions on Non-U.S.
exchanges. The Safekeeping Accounts are the Customer's segregated accounts
within the meaning of the Commodity Exchange Act, as amended, and
regulations promulgated by the Commodity Futures Trading Commission
pursuant thereto, and all cash, securities and other property deposited
therein will be held by Bank as such. Bank represents that it is not a
fiduciary or an affiliate of Customer.
3. Customer shall deposit in the Safekeeping Account U.S. cash or U.S.
Government securities, or any combination thereof (herein called
"Collateral") in the amount of initial margin required by Broker with
respect to any Contract for the Futures Account for which the Safekeeping
Account is maintained ("Initial Margin"). Such Collateral shall be
maintained in the Safekeeping Account until termination or satisfaction of
the Contract. Customer may deposit, or maintain on deposit, Collateral in a
Safekeeping Account in excess of such requirements ("Excess Margin"). In
determining whether Collateral is sufficient to satisfy Initial Margin
requirements of any Exchange, U. S. Government securities will be
appropriately discounted as agreed between Customer and Broker. Bank shall
not be responsible for determining the valuation or adequacy of any margin
required under this Agreement.
4. Collateral held in the Safekeeping Account (i) will be held by Bank for
Broker subject to the terms and conditions of the Custodian Agreement, as
modified by this Agreement, which shall be controlling with respect to the
Safekeeping Account or Safekeeping Accounts in the event of conflicting
provisions (ii) may be released, transferred or sold only in accordance
with the terms of the Custodian Agreement and (iii), except as provided
herein, shall not be made available to Broker or to any person claiming
through Broker including creditors of Broker. Customer hereby grants to
Broker a continuing security interest in the Collateral and the proceeds
thereof, subject to the terms and conditions of this Agreement, which
security interest will terminate upon release of the Collateral by Broker
as provided herein. Bank shall have no responsibility for the creation,
validity, priority, or enforceability of such security interest. The
Collateral shall at all times remain the property of Customer subject only
to the interest and rights therein of Broker as pledgee and secured party
thereof as provided in this Agreement.
5. Bank agrees to transfer or release to Customer Collateral held in a
Safekeeping Account only upon Instructions from Broker.
6. Customer may substitute as Collateral U.S. Government securities or U.S.
cash of equal or greater value. Broker agrees to give Instructions to
release from a Safekeeping Account U.S. cash or U.S. Government securities
of an equal value, or such lesser amount as may be directed by Customer,
upon receipt of substituted Collateral.
7. Broker shall promptly give Notice to Customer of the amount of any Excess
Margin in a Safekeeping Account. Upon request of Customer, Broker shall
give Instructions to release to Customer U.S. cash or U.S. Government
securities selected by Customer, the market value of which in the aggregate
does not exceed the amount of any such Excess Margin.
8. Interest and dividends on securities held in a Safekeeping Account or
Safekeeping Accounts will be automatically credited by Bank in Federal
funds to such demand deposit account or accounts designated by Customer on
the date that such funds become due and payable. Customer hereby agrees
that no later than two business days prior to the redemption or maturity of
any Collateral ("Maturing or Redeemed Collateral"), Customer shall
substitute new Collateral in accordance with the terms of Paragraph 6.
Customer's failure to substitute Collateral for such Maturing or Redeemed
Collateral shall be deemed a failure to deposit margin under Paragraph 3 of
this Agreement.
9. Bank shall promptly transmit to Broker written confirmation of each
transfer into or out of a Safekeeping Account. In addition, Bank shall
provide Broker with a monthly statement showing transactions and all
Collateral held in the Safekeeping Account.
10. Broker shall have access to the Collateral only in accordance with the
following:
(a) If Notice by Broker to Customer is given that additional margin is
required by any Exchange due to variation in the value of one or more
outstanding Contracts purchased or sold by Customer ("Variation
Margin") prior to 11:30 a.m. New York time, which Variation Margin
shall first have been satisfied from any amounts currently credited to
the Futures Account in connection with which the Variation Margin is
required, Customer shall transfer to Broker such Variation Margin not
later than 3:00 p.m. on the same day. If Notice is given by Broker to
Customer of the need for Variation Margin subsequent to 11:30 a.m. but
prior to 4:00 p.m. New York time, Customer shall provide such
Variation Margin to Broker not later than 10:30 a.m. New York time of
the next succeeding day. Notices given by Broker subsequent to 4:00
p.m. New York time shall be deemed given by Broker prior to 11:30 a.m.
the next succeeding day. Notice by Broker to Customer of the receipt
of Variation Margin shall be given promptly.
(b) Upon receipt by Bank of Notice from Broker that Customer has not
timely made payment of Variation Margin in respect of the Futures
Account as required by Section 10(a) of this Agreement or has not
timely made any other payment, deposit or delivery required under this
Agreement, the customer agreement in respect of the Futures Account or
the rules and regulations of the applicable Exchange or the Commodity
Futures Trading Commission (other than a failure to pay brokerage
commissions), (i) Bank shall be precluded from making any payments to
Customer from the Safekeeping Account or taking any other action with
respect thereto (other than making transfers into the Safekeeping
Account) until such time as Broker issues further Instructions to Bank
and (ii) unless Broker otherwise directs Bank, upon Instructions from
Broker, Bank shall immediately transfer to Broker an amount set forth
in such Instructions as due in respect of the Futures Account as a
result of such failure to timely make a required payment, deposit or
delivery. Bank shall not be responsible for the valuation or adequacy
of any margin under this Agreement..
(c) Bank shall retain in such Safekeeping Account any Collateral in excess
of the amount of Variation Margin specified in Instructions received
from Broker including any proceeds from the sale of securities in
excess of such amount; Broker shall give consideration to any timely
request by Customer with respect to particular securities to be sold
and shall sell any securities in the principal market for such
securities or, in the event such principal market is closed, sell them
in a manner commercially reasonable for such securities.
11. Bank's duties and responsibilities are as set forth in this Agreement. Bank
shall not be liable or responsible for anything done, or omitted to be done
by it in good faith and in the absence of negligence and may rely and shall
be protected in acting upon any notice, instruction or other communication
which it reasonably believes to be genuine and authorized. As between
Customer and Bank, the terms of the Custodian Agreement shall apply with
respect to any losses or liabilities of such parties arising out of matters
covered by this Agreement. As between Bank and Broker, Broker shall
indemnify and hold Bank harmless with regard to any losses or liabilities
of Bank (including counsel fees) imposed on or incurred by Bank arising out
of any action or omission of Bank in accordance with any notice or
instruction of Broker under this Agreement, provided that Broker shall not
be required to indemnify Bank if such action or omission of Bank was as a
result of the negligent or intentional misconduct of the Bank. In matters
concerning or relating to this Agreement, Bank shall not be responsible for
compliance with any statute or regulation regarding the establishment or
maintenance of margin credit, including but not limited to Regulations T or
X of the Board of Governors of the Federal Reserve System, or with any
rules or regulations of the OCC. Bank shall not be liable to any party for
any acts or omissions of the other parties to this Agreement. Bank shall
have no duty to require any cash or securities to be delivered to it or to
determine that the amount and form of assets deposited in the Safekeeping
Account comply with any applicable requirements. Bank may hold the
securities in the Safekeeping Account in bearer, nominee, book entry, or
other form and in any depository or clearing corporation, with or without
indicating that the securities are held hereunder; provided, however, that
all securities held in the Safekeeping Account shall be identified on
Bank's records as subject to this Agreement and shall be a form that
permits transfer without additional authorization or consent of the
Customer.
12. Neither Broker nor any person claiming through Broker shall have access to
Collateral in any Safekeeping Account other than the Safekeeping Account
which relates to the Futures Account in which the Variation Margin is
required and only in accordance with the provisions of this Agreement.
13. No amendment of this Agreement shall be effective unless in writing and
signed by each of the Parties.
14. Written communications hereunder shall be, except as otherwise required
hereunder, hand-delivered or mailed first class postage prepaid (except
that written notice of termination shall be sent by certified mail)
addressed:
(a) If to Bank, to: STATE STREET BANK AND TRUST COMPANY
000 Xxxxxxxxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Attn: Vice President, Mutual Funds Custody
And Attn: Managing Counsel
Tel.: 000-000-0000
Fax: 000-000-0000
(b) If to Customer, to: AMERICAN CENTURY MUTUAL FUNDS, INC.
c/o American Century Services LLC
0000 Xxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Attn: C. Xxxx Xxxx
Vice President, Portfolio Accounting
Tel.: 000-000-0000
Fax: 000-000-0000
With a copy to:
XXXXX STREET ADVISORS LLC
c/o Northwestern Mutual Life Insurance Co
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Tel: 000-000-0000
Fax: 000-000-0000
(c) If to Broker, to: X.X. XXXXXX FUTURES INC.
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxxx
Manager - Operations
Tel.: 000-000-0000
Fax: 000-000-0000
15. Except as specifically provided herein, this Agreement does not in any way
affect any other agreements entered into among the Parties hereto.
16. Any of the Parties may terminate this Agreement upon 30 days' prior written
notice to both of the other Parties hereto; PROVIDED, HOWEVER, that
Collateral which has not been released by Broker at or prior to the time of
termination shall be transferred to a substitute custodian designated by
Customer and acceptable to Broker. If either Customer or Bank terminates
the Custodian Agreement, this Agreement and the Safekeeping Account shall
also terminate no later than the effective date of termination of the
Custodian Agreement, provided that Broker receives 30 days prior notice of
such termination from Customer or Bank.
17. Any and all expenses of establishing, maintaining or terminating the
Safekeeping Account, including, without limitation, any and all expenses
incurred by Bank in connection with the Safekeeping Account, shall be borne
by Customer.
18. Each Party hereby consents to the tape recording (with notice provided of
such recording) of all oral Notices and Instructions given by any party to
this Agreement to any other Party to this Agreement.
19. This Agreement shall be construed according to, and the rights and
liabilities of the parties hereto shall be governed by, the laws of New
York.
20. This Agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the duly authorized representatives of the parties have
executed and delivered this Agreement as of the date written above.
AMERICAN CENTURY MUTUAL FUNDS, INC.
ON BEHALF OF EACH OF ITS SERIES LISTED ON SCHEDULE 1
*
/s/ Xxxxx X. Reimmiller
----------------------------------------
By: Xxxxx X. Xxxxxxxxxx
Title: Vice President
X.X. XXXXXX FUTURES INC.
/s/ Xxxxxx X. Xxxxxxx
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By: Xxxxxx X. Xxxxxxx
Title: Vice Presdient
STATE STREET BANK AND TRUST COMPANY
/s/ Xxxx Xxxxxxxxx
---------------------------------------
By: Xxxx Xxxxxxxxx
Vice President
SCHEDULE 1
TO
THIRD-PARTY CUSTODIAL AGREEMENT BETWEEN X.X. XXXXXX FUTURES INC., AMERICAN
CENTURY MUTUAL FUNDS, INC., AND STATE STREET BANK AND TRUST COMPANY
MARCH 31, 2006
SERIES FUND/PORTFOLIO ADVISER
--------------------- -------
American Century - Xxxxx Street Small Cap Growth Fund Xxxxx Street Advisors, LLC
American Century - Xxxxx Street Mid Cap Growth Fund Xxxxx Street Advisors, LLC
APPENDIX A
TO
THIRD-PARTY CUSTODIAL AGREEMENT AMONG AMERICAN CENTURY MUTUAL FUNDS, INC., X.X.
XXXXXX FUTURES INC., AND STATE STREET BANK AND TRUST COMPANY
AUTHORIZED PERSONS FOR X.X. XXXXXX FUTURES INC.
Bank is directed to accept and act upon written Advice from Broker received
from any one of the following persons at X.X. Xxxxxx Futures Inc.
NAME TELEPHONE/FAX NUMBER SIGNATURE
---- -------------------- ---------
1. XXXXXX XXXXX 1. 000-000-0000/2524 1. /s/ Xxxxxx Xxxxx
-----------------------
2. XXXX XXXXXXX 2. 000-000-0000/2524 2. /s/ Xxxx Xxxxxxx
-----------------------
3. XXXXX XXXXXXXX 3. 000-000-0000/2524 3. /s/ Xxxxx Xxxxxxxx
-----------------------
AUTHORIZED BY: Xxxxxx X. Xxxxxxx, AS AUTHORIZED AGENT OF BROKER
------------------
NAME: Xxxxxx X. Xxxxxxx
TITLE: Vice President
DATE:
APPENDIX B
TO
THIRD-PARTY CUSTODIAL AGREEMENT AMONG AMERICAN CENTURY MUTUAL FUNDS, INC., X.X.
XXXXXX FUTURES INC., AND STATE STREET BANK AND TRUST COMPANY
AUTHORIZED PERSONS FOR AMERICAN CENTURY MUTUAL FUNDS, INC./XXXXX STREET
ADVISORS, LLC
Bank and Broker are directed to accept and act upon written Instructions
from Customer received from any one of the following persons at Xxxxx Street
Advisors, LLC acting as authorized by American Century Mutual Funds, Inc.
NAME TELEPHONE/FAX NUMBER SIGNATURE
---- -------------------- ---------
1. Xxxx Xxxxxxxxx 1. 414.665.6339/414.625.6339 1. /s/ Xxxx Xxxxxxxxx
---------------------------
2. Xxxxx Xxxxxxxx 2. 414.665.6984/000.000.0000 2. /s/ Xxxxx Xxxxxxxx
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3. Xxxxxxxx Xxxxxx-Xxxxxxx 3. 414.665.1602/414.625.1602 3. /s/ Xxxxxxxx Xxxxxx-Xxxxxxx
---------------------------
AUTHORIZED BY AMERICAN CENTURY MUTUAL FUNDS, INC., FOR
AMERICAN CENTURY - XXXXX STREET SMALL CAP GROWTH FUND
AND AMERICAN CENTURY - XXXXX STREET MID CAP GROWTH FUND
/s/ Xxxxx X. Xxxxxxxxxx
-----------------------------------------
NAME: Xxxxx X. Xxxxxxxxxx
TITLE: Vice President
