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CUSTODY AGREEMENT Exhibit (8)
THIS AGREEMENT made the 8th day of May, 1988, by and between INVESTORS FIDUCIARY
TRUST COMPANY, a trust company chartered under the laws of the state of
Missouri, having its trust office located at 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx,
Xxxxxx Xxxx, Xxxxxxxx 00000 ("Custodian"), and COWEN INCOME + GROWTH FUND, INC.
a Maryland corporation, having its principal office and place of business at
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Fund").
WITNESSETH:
WHEREAS, the Fund has issued its Common Stock, $.001 par value per share with
the proceeds of the sale allocated to the Fund's investment program; and
WHEREAS, Fund desires to appoint Investors Fiduciary Trust Company Custodian of
the securities and monies of the Fund; and
WHEREAS, Investors Fiduciary Trust Company is willing to accept such
appointment;
NOW THEREFORE, for and in consideration of the mutual promises contained herein,
the parties hereto, intending to be legally bound, mutually covenant and agree
as follows:
1. APPOINTMENT OF CUSTODIAN
Fund hereby constitutes and appoints Custodian as custodian of the
securities and monies at any time owned by the Fund;
2. DELIVERY OF CORPORATE DOCUMENTS
Fund has delivered or will deliver to Custodian prior to the effective date of
this Agreement, copies of the following documents and all amendments or
supplements thereto, properly certified or authenticated:
A. Resolutions of the Board of Directors of Fund appointing Custodian as
custodian hereunder and approving the form of this Agreement; and
B. Resolutions of the Board of Directors of Fund designating certain persons to
give instructions on behalf of Fund to Custodian and authorizing Custodian to
rely upon written instructions over their signatures.
3. DUTIES AND RESPONSIBILITIES OF CUSTODIAN
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A. Delivery of Assets
Fund will deliver or cause to be delivered to Custodian on the effective date of
this Agreement, or as soon thereafter as practicable, and from time to time
thereafter, all portfolio securities acquired by it and monies then owned by it
except as permitted by the Investment Company Act of 1940 or from time to time
coming into its possession during the time of this Agreement shall continue in
effect. Custodian shall have no responsibility or liability whatsoever for or on
account of securities or monies not so delivered. All securities so delivered to
Custodian (other than bearer securities) shall be registered in the name of Fund
or its nominee, or of a nominee of Custodian, or shall be properly endorsed and
in form for transfer satisfactory to Custodian.
B. Delivery of Accounts and Records
Fund shall turn over to Custodian all of the Fund's relevant accounts and
records previously maintained by it. Custodian shall be entitled to rely
conclusively on the completeness and correctness of the accounts and records
turned over to it by Fund, and Fund shall indemnify and hold Custodian harmless
of and from any and all expenses, damages and losses whatsoever arising out of
or in connection with any error, omission, inaccuracy or other deficiency of
such accounts and records or in the failure of Fund to provide any portion of
such or to provide any information needed by the Custodian knowledgeably to
perform its function hereunder.
C. Delivery of Assets to Third Parties
Custodian will receive delivery of and keep safely the assets of Fund delivered
to it from time to time. Custodian will not deliver, assign, pledge or
hypothecate any such assets to any person except as permitted by the provisions
of this Agreement or any agreement executed by it according to the terms of
section 3.S. of this Agreement. Upon delivery of any such assets to a
subcustodian pursuant to Section 3.S.2 of this agreement, Custodian will create
and maintain records identifying those assets which have been delivered to the
subcustodian as belonging to Fund. The Custodian is responsible for the
securities and monies of Fund only until they have been transmitted received by
other persons as permitted under the terms of this Agreement, except for
securities and monies transmitted to a subcustodian as provided for by section
3.S., for which Custodian remains responsible. Custodian shall be responsible
only for the monies and securities of Fund held by it or its nominees or
Subcustodians under this Agreement. Custodian may participate directly or
through a subcustodian in the Depository Trust Company or Treasury/Federal
Reserve Book
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Entry System (as such entity is defined at 17 CFR Section 270.17f-4(b) or other
depository approved by the Fund).
D. Registration of Securities
Custodian will hold stocks and other registerable portfolio securities of Fund
registered in the name of Fund or in the name of any nominee of Custodian for
whose fidelity and liability Custodian will be fully responsible, or in street
certificate form, so-called, with or without any indication of fiduciary
capacity. Unless otherwise instructed, Custodian will register all such
portfolio securities in the name of its authorized nominee. All securities, and
the ownership thereof by Fund, which are held by Custodian hereunder, however,
shall at all times be identifiable on the records of the Custodian. The Fund
agrees to hold Custodian and its nominee harmless for any liability as a record
holder of securities held in custody.
E. Exchange of Securities
Upon receipt of instructions as defined herein in Section 4.A, Custodian will
exchange, or cause to be exchanged, portfolio securities held by it for the
account of Fund for other securities or cash issued or paid in connection with
any reorganization, recapitalization, merger, consolidation, split-up of shares,
change of par value, conversion or otherwise, and will deposit any such
securities in accordance with the terms of any reorganization or protective
plan. Without instructions, Custodian is authorized to exchange securities held
by it in temporary form for securities in definitive form, to effect an exchange
of shares when the par value of the stock is changed, and, upon receiving
payment therefor, to surrender bonds or other securities held by it at maturity
or when advised of earlier call for redemption, except that Custodian shall
receive instructions prior to surrendering any convertible security.
F. Purchases of Investments of the Fund
Fund will, on each business day on which a purchase of securities shall be made
by it, deliver to Custodian instructions which shall specify with respect to
each such purchase:
1. The name of the issuer and description of the security;
2. The number of shares or the principal amount purchased, and accrued interest,
if any;
3. The trade date;
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4. The settlement date;
5. The purchase price per unit and the brokerage commission, taxes and other
expenses payable in connection with the purchase;
6. The total amount payable upon such purchase; and
7. The name of the person from whom or the broker or dealer through whom the
purchase was made; and
In accordance with such instructions, Custodian will pay for out of monies held
for the account of the Fund, but only insofar as monies are available therein
for such purpose, and receive the portfolio securities so purchased by or for
the account of the Fund except that Custodian may in its sole discretion advance
funds to the Fund which may result in an overdraft because the monies held by
the Custodian in the account of the Fund are insufficient to pay the total
amount payable upon such purchase. Such payment will be made only upon receipt
by Custodian of the securities so purchased in form for transfer satisfactory to
Custodian.
G. Sales and Deliveries of Investments of the Fund - Other than Options and
Futures
Fund will, on each business day on which a sale of investment securities of Fund
has been made, deliver to Custodian instructions specifying with respect to each
such sale:
1. The name of the issuer and description of the securities;
2. The number of shares or principal amount sold, and accrued interest, if any;
3. The date on which the securities sold were purchased or other information
identifying the securities sold and to be delivered;
4. The trade date;
5. The settlement date;
6. The sale price per unit and the brokerage commission, taxes or other expenses
payable in connection with such sale;
7. The total amount to be received by Fund upon such sale; and
8. The name and address of the broker or dealer through whom or person
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to whom the sale was made.
In accordance with such instructions, Custodian will deliver or cause to be
delivered the securities thus designated as sold for the account of the Fund to
the broker or other person specified in the instructions relating to such sale,
such delivery to be made only upon receipt of payment therefor in such form as
is satisfactory to Custodian, with the understanding that Custodian may deliver
or cause to be delivered securities for payment in accordance with the customs
prevailing among dealers in securities.
H. Purchases or Sales of Security Options, Options on Indices and Security Index
Futures Contracts Fund will, on each business day on which a purchase or sale of
the following options and/or futures shall be made by it, deliver to Custodian
instructions which shall specify with respect to each such purchase or sale:
1. Security Options
a. The underlying security;
b. The price at which purchased or sold;
c. The expiration date;
d. The number of contracts;
e. The exercise price;
f. Whether the transaction is an opening, exercising, expiring or closing
transaction;
g. Whether the transaction involves a put or call;
h. Whether the option is written or purchased;
i. Market on which option traded;
j. Name and address of the broker or dealer through whom the sale or purchase
was made.
2. Options on Indices
a. The index;
b. The price at which purchased or sold;
c. The exercise price;
d. The premium;
e. The multiple;
f. The expiration date;
h. Whether the transaction is an opening, exercising, expiring or closing
transaction;
i. Whether the transaction involves a put or call;
j. Whether the option is written or purchased;
k. The name and address of the broker or dealer through whom the sale or
purchase was made, or other applicable settlement instructions.
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3. Security Index Future Contracts
a. The last trading date specified in the contract and, when available, the
closing level, thereof;
b. The index level on the date the contract is entered into;
c. The multiple;
d. Any margin requirements; and
e. The need for a segregated margin account (in addition to instructions, and if
not already in the possession of Custodian, Fund shall deliver a substantially
complete and executed custodial safekeeping account and procedural agreement
which shall be incorporated by reference into this Custody Agreement).
f. The name and address of the futures commission merchant through whom the sale
or purchase was made, or other applicable settlement instructions.
4. Option on Index Future Contracts
a. The underlying index future contract;
b. The premium;
c. The expiration date;
d. The number of options;
e. The exercise price;
f. Whether the transaction involves an opening, exercising, expiring or closing
transaction;
g. Whether the transaction involves a put or call; h. Whether the option is
written or purchased
i. The market on which the option is traded.
I. Securities Pledged or Loaned
If specifically allowed for in the Registration Statement of Fund:
1. Upon receipt of instructions, Custodian will release or cause to be released
securities held in custody to the pledgee designated in such instructions by way
of pledge or hypothecation to secure any loan incurred by Fund; provided,
however, that the securities shall be released only upon payment to Custodian of
the monies borrowed, except that in cases where additional collateral is
required to secure a borrowing already made, further securities may be released
or caused to be released for that purpose upon receipt of instructions. Upon
receipt of instructions, Custodian will pay, but only from funds available for
such purpose, any such loan upon redelivery to it of the securities pledged or
hypothecated therefor and upon surrender of the note or notes evidencing such
loan.
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2. Upon receipt of instructions, Custodian will release securities held in
custody to the borrower designated in such instructions; provided, however, that
the securities will be released only upon deposit with Custodian of full cash
collateral as specified in such instructions, and that Fund will retain the
right to any dividends, interest or distribution on such loaned securities. Upon
receipt of instructions and the loaned securities, Custodian will release the
cash collateral to the borrower.
J. Routine Matters Custodian will, in general, attend to all routine and
mechanical matters in connection with the sale, exchange, substitution,
purchase, transfer, or other dealings with securities or other property of Fund
except as may be otherwise provided in this Agreement or directed from time to
time by the Board of Directors of Fund.
K. Deposit Account
Custodian will open and maintain a special purpose deposit account or accounts
in the name of Custodian ("Account"), subject only to draft or order by
Custodian upon receipt of instructions. All monies received by Custodian from or
for the account of the Fund shall be deposited in one or more said accounts
which have been identified as being account(s) to hold assets allocated to the
Fund barring events not in the control of the Custodian such as strikes,
lockouts or labor disputes, riots, war or equipment or transmission failure or
damage, fire, flood, earthquake or other natural disaster, action or inaction of
governmental authority or other causes beyond its control, at 9:00 a.m., Kansas
City time, on the second business day after deposit of any check into the Fund's
account(s). Custodian may open and maintain an Account in such other banks or
trust companies as may be designated by it or by properly authorized resolution
of the Board of Directors of Fund, such Account, however, to be in the name of
Custodian and subject only to its draft or order.
L. Income and other Payments to Fund Custodian will:
1. Collect, claim and receive and deposit for the account of Fund all income and
other payments which become due and payable on or after the effective date of
this Agreement with respect to the securities deposited under this Agreement,
and credit the account of the Fund with such income when received;
2. Execute ownership and other certificates and affidavits for all federal,
state and local tax purposes in connection with the collect-ion of bond and
note coupons; and
3. Take such other action as may be necessary or proper in connection
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with:
a. the collection, receipt and deposit of such income and other payments,
including but not limited to the presentation for payment of:
1. all coupons and other income items requiring presentation; and
2. all other securities which may mature or be called, redeemed, retired or
otherwise become payable and regarding which the Custodian has actual knowledge,
or notice of which is contained in publications of the type to which it normally
subscribes for such purpose; and
b. the endorsement for collection, in the name of Fund, of all checks, drafts or
other negotiable instruments.
Custodian, however, will not be required to institute suit or take other
extraordinary action to enforce collection except upon receipt of instructions
and upon being indemnified to its satisfaction against the costs and expenses of
such suit or other actions. Custodian will receive, claim and collect all stock
dividends, rights and other similar items and will deal with the same pursuant
to instructions. Unless prior instructions have been received to the contrary,
Custodian will, without further instructions, sell any rights held for the
account of the particular Fund on the last trade date prior to the date of
expiration of such rights.
M. Payment of Dividends and other Distributions
On or before the declaration of any dividend or other distribution on the shares
of any class of Capital Stock of Fund ("Shares") by the Board of Directors of
Fund, Fund shall deliver to Custodian instructions with respect thereto,
including a copy of the Resolution of said Board of Directors certified by the
Secretary or an Assistant Secretary of Fund wherein there shall be set forth the
record date as of which shareholders entitled to receive such dividend or other
distribution shall be determined, the date of payment of such dividend or
distribution, and the amount payable per share on such dividend or distribution.
For purposes of the foregoing, it shall be sufficient for the Fund to furnish a
copy of the Resolution of the Board of Directors specifying procedures by which
the record date , payment date and amount of dividend or other distribution
shall be determined, and authorizing officers of the Fund to act in accordance
with such procedures. Except if the ex-dividend date and the reinvestment date
of any dividend are the same, in which case funds shall remain in the Custody
Account, on the date specified in such Resolution for the payment of such
dividend or other distribution, Custodian will pay out of the monies held for
the account of the Fund, insofar as the same shall be available for such
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purposes, and credit to the account of the Dividend Disbursing Agent for Fund,
such amount as may be necessary to pay the amount per share payable in cash on
the Shares issued and outstanding on the record date established by such
Resolution.
N. Shares of Fund Repurchased or Redeemed by Fund
Whenever any Fund Shares are repurchased or redeemed by Fund, Fund or its agent
shall advise Custodian of the class of shares redeemed or repurchased and the
aggregate dollar amount to be paid for such shares and shall confirm such advice
in writing. Upon receipt of such advice, Custodian shall charge such aggregate
dollar amount to the custody account of the Fund and either deposit the same in
the account maintained for the purpose of paying for the repurchase or
redemption of such Shares or deliver the same in accordance with such advice.
Custodian shall not have any duty or responsibility to determine that Fund
Shares repurchased or redeemed by Fund have been removed from the proper
shareholder account or accounts or that the proper number of such shares have
been cancelled and removed from the shareholder records.
O. Shares of Fund Purchased from Fund
Whenever the Shares are purchased from Fund, Fund will deposit or cause to be
deposited with Custodian the amount received for such shares, and will notify
Custodian of the class of shares purchased and to which the proceeds are to be
allocated.
Custodian shall not have any duty or responsibility to determine that Fund
Shares purchased from Fund have been added to the proper shareholder account or
accounts or that the proper number of such shares have been added to the
shareholder records.
P. Proxies and Notices
Custodian will promptly deliver or mail or have delivered or mailed to Fund all
proxies properly signed, all notices of meetings, all proxy statements and other
notices, requests or announcements affecting or relating to securities held by
Custodian for Fund and will, upon receipt of instructions, execute and deliver
or cause its nominee to execute and deliver or mail or have delivered or mailed
such proxies or other authorizations as may be required. Except as provided by
this Agreement or pursuant to instructions hereafter received by Custodian,
neither it nor its nominee will exercise any power inherent in any such
securities, including any power to vote the same, or execute any proxy, power of
attorney, or other similar instrument voting any of such securities, or give any
consent, approval or waiver with
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respect thereto, or take any other similar action.
Q. Disbursements
Custodian will pay or cause to be paid insofar as funds are available for the
purpose, bills, statements and other obligations of Fund (including but not
limited to obligations in connection with the conversion, exchange or surrender
of securities owned by Fund, interest charges, dividend disbursements, taxes,
management fees, custodian fees, legal fees, auditors fees, transfer agents
fees, brokerage commissions, compensation to personnel, and other operating
expenses of Fund) pursuant to instructions of Fund setting forth the account, if
more than one, from which payment is to be made, the name of the person to whom
payment is to be made, the amount of the payment, and the purpose of the
payment.
R. Daily Statement of Accounts
Custodian will, within a reasonable time, render to Fund as of the close of
business on each day, a detailed statement of the amounts received or paid and
of securities received or delivered for the account of the Fund during said day.
Custodian will, from time to time, upon request by Fund, render a detailed
statement of the securities and monies held for the Fund under this Agreement,
and Custodian will maintain such books and records as are necessary to enable it
to do so and will permit such persons as are authorized by Fund including Fund's
independent public accountants, access to such records or confirmation of the
contents of such records; and if demanded, will permit federal and state
regulatory agencies to examine the securities, books and records. Upon the
written instructions of Fund or as demanded by federal or state regulatory
agencies, Custodian will instruct any subcustodian to give such persons as are
authorized by Fund including Fund's independent public accountants, access to
such records or confirmation of the contents of such records; and if demanded,
to permit federal and state regulatory agencies to examine the books, records
and securities held by subcustodian which relate to Fund.
S. Appointment of Subcustodians
1. Notwithstanding any other provisions of this Agreement, monies or securities
of Fund may be held in Custodian's own custody or in the custody of one or more
other banks or trust companies selected by Custodian. Any such subcustodian must
have the qualifications required for custodian under the Investment Company Act
of 1940, as amended. The subcustodian may participate directly or indirectly in
the Depository Trust
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Company or Treasury/Federal Reserve Book Entry System (as such entity is defined
at 17 CFR Sec. 270.17f-4(b)) or other depository approved by the Fund. Neither
Custodian nor subcustodian will be entitled to reimbursement by Fund for any
fees or expenses of any subcustodian. The appointment of a subcustodian will not
relieve Custodian of any of its obligations hereunder.
2. Notwithstanding any other provisions of this Agreement, Fund's foreign
securities (as defined in Rule 17f-5(c)(1) under the Investment Company Act of
1940) and Fund's cash or cash equivalents, in amounts reasonably necessary to
effect Fund's foreign securities transactions, may be held in the custody of one
or more banks or trust companies acting as Subcustodians, according to Section
3.S.1; and thereafter, pursuant to a written contract or contracts as approved
by Fund's Board of Directors, may be transferred to an account maintained by
such subcustodian with an eligible foreign custodian, as defined in Rule
17f-5(c)(2), provided that any such arrangement involving a foreign custodian
shall be in accordance with the provisions of Rule 17f-5 under the Investment
Company Act of 1940 as that Rule may be amended from time to time.
3. Custodian shall be responsible for insuring that any subcustodian has
appropriately segregated assets of the Fund.
T. Adoption of Procedures
Custodian and Fund may from time to time adopt procedures as they agree upon,
and Custodian may conclusively assume that no procedure approved by Fund, or
directed by Fund, conflicts with or violates any requirements of its prospectus,
"Articles of Incorporation," Bylaws, or any rule or regulation of any regulatory
body or governmental agency. Fund will be responsible to notify Custodian of any
changes in statutes, regulations, rules or policies which might necessitate
changes in Custodian's responsibilities or procedures.
U. Overdrafts
If Custodian shall in its sole discretion advance funds to the account of the
Fund which results in an overdraft because the monies held by Custodian on
behalf of the Fund are insufficient to pay the total amount payable upon a
purchase of securities as specified in Fund's instructions or for some other
reason, the amount of the overdraft shall be payable out of the account of the
Fund to IFTC upon demand and shall bear a reasonable interest rate determined by
Custodian from the date advanced until the date of payment.
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V. Accounts and Records Property of Fund
Custodian acknowledges that all of the accounts and records maintained by
Custodian pursuant to this Agreement are the property of Fund, and will be made
available to Fund for inspection or reproduction within a reasonable period of
time, upon demand. Custodian will assist Fund's independent auditors, or upon
approval of Fund, or upon demand, any regulatory body having jurisdiction over
the Fund or Custodian, in any requested review of Fund's accounts and records
but shall be reimbursed for all expenses and employee time invested in any such
review outside of routine and normal periodic reviews. Upon receipt from Fund of
the necessary information, Custodian will supply necessary data for Fund's
completion of any necessary tax returns, questionnaires, periodic reports to
Shareholders and such other reports and information requests as Fund and
Custodian shall agree upon from time to time.
4. INSTRUCTIONS
A. The term "instructions", as used herein, means written or oral instructions
to Custodian from a designated representative of Fund. Certified copies of
resolutions of the Board of Directors of Fund naming one or more designated
representatives to give instructions in the name and on behalf of Fund, may be
received and accepted from time to time by Custodian as conclusive evidence of
the authority of any designated representative to act for Fund and may be
considered to be in full force and effect (and Custodian will be fully protected
in acting in reliance thereon) until receipt by Custodian of notice to the
contrary. Unless the resolution delegating authority to any person to give
instructions specifically requires that the approval of anyone else will first
have been obtained, Custodian will be under no obligation to inquire into the
right of the person giving such instructions to do so. Notwithstanding any of
the foregoing provisions of this Section 4, no authorizations or instructions
received by Custodian from Fund, will be deemed to authorize or permit any
Director, Trustee, officer, employee, or agent of Fund to withdraw any of the
securities or similar investments of Fund upon the mere receipt of such
authorization or instructions from such director trustee, officer, employee or
agent.
Notwithstanding any other provision of this Agreement, Custodian, upon receipt
(and acknowledgment if required at the discretion of Custodian) of the
instructions of a designated representative of Fund will undertake to deliver
for the account of the Fund monies, (provided such monies are on hand or
available) in connection with transactions for the account of the Fund and to
wire transfer such monies to such broker, dealer, subcustodian, bank or other
agent specified in such instructions by a
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designated representative of Fund.
B. No later than the next business day immediately following each oral
instruction, Fund will send Custodian written confirmation of such oral
instruction. At Custodian's sole discretion, Custodian may record on tape, or
otherwise, any oral instruction whether given in person or via telephone, each
such recording identifying the parties, the date and the time of the beginning
and ending of such oral instruction.
5. LIMITATION OF LIABILITY OF CUSTODIAN
A. Custodian shall hold harmless and indemnify Fund from and against any loss or
liability arising out of Custodian's failure to comply with the terms of this
Agreement or arising out of Custodian's negligence, willful misconduct, or bat
faith. Custodian shall not be liable for consequential damages. Custodian may
request and obtain the advice and opinion of counsel for Fund, or of its own
counsel with respect to questions or matters of law, and it shall be without
liability to Fund for any action taken or omitted by it in good faith, in
conformity with such advice or opinion. If IFTC reasonably believes that it
court not prudently act according to the instructions of the Fund or the Fund's
counsel, it may in its discretion, with notice to the Fund, not act according to
such instructions.
B. Custodian may rely upon the advice of Fund and upon statements of Fund's
accountants and other persons believed by it, in good faith, to be expert in
matters upon which they are consulted and Custodian shall not be liable for any
actions taken, in good faith, upon such statements.
C. If Fund requires Custodian in any capacity to take, with respect to any
securities, any action which involves the payment of money by it, or which in
Custodian's opinion might make it or its nominee liable for payment of monies or
in any other way, Custodian, upon notice to Fund given prior to such actions,
shall be and be kept reasonably indemnified by Fund in an amount and form
satisfactory to Custodian against any liability on account of such action.
D. Custodian shall be entitled to receive, and Fund agrees to pay to Custodian,
on demand, reimbursement for such cash disbursements, costs and expenses as may
be agreed upon from time to time by Custodian and Fund.
E. Custodian shall be protected in acting as custodian hereunder upon any
instructions, advice, notice, request, consent, certificate or other instrument
or paper reasonably appearing to it to be genuine and to have been properly
executed and shall, unless otherwise specifically provided herein, be
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entitled to receive as conclusive proof of any fact or matter required to be
ascertained from Fund hereunder, a certificate signed by the Fund's President,
or other officer specifically authorized for such purpose.
F. Without limiting the generality of the foregoing, Custodian shall be under
no duty or obligation to inquire into, and shall not be liable for:
1. The validity of the issue of any securities purchased by or for Fund, the
legality of the purchase thereof or evidence of ownership required by Fund to be
received by Custodian, or the propriety of the decision to purchase or amount
paid therefor;
2. The legality of the sale of any securities by or for Fund, or the propriety
of the amount for which the same are sold;
3. The legality of the issue or sale of any shares of the Capital Stock of Fund,
or the sufficiency of the amount to be received therefor;
4. The legality of the repurchase or redemption of any shares of Fund Shares, or
the propriety of the amount to be paid therefor; or
5. The legality of the declaration of any dividend by Fund, or the legality of
the issue of any Fund Shares in payment of any stock dividend.
G. Custodian shall not be liable for, or considered to be Custodian of, any
money represented by any check, draft, wire transfer, clearing house funds,
uncollected funds, or instrument for the payment of money received by it on
behalf of Fund, until Custodian actually receives such money, provided only
that-it shall advise Fund promptly if it fails to receive any such money in the
ordinary course of business, and use its best efforts and cooperate with Fund
toward the end that such money shall be received.
H. Except for any Subcustodians appointed under section 3.S., Custodian shall
not be responsible for loss occasioned by the acts, defaults or insolvency of
any broker, bank, trust company, or any other person with whom Custodian may
deal in the absence of negligence, misconduct, or bad faith on the part of
Custodian.
I. Notwithstanding anything herein to the contrary, Custodian may, and with
respect to any foreign subcustodian appointed under Section 3.S.2 must, provide
Fund for its approval, agreements with banks or trust
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companies which will act as Subcustodians for Fund pursuant to Section 3.S of
this Agreement.
J. Custodian may advance, or cause to be advanced, to Fund monies as a result of
orders or instructions of Fund or procedures for purposes pursuant to this
Agreement, including, among others, payments for securities, options or futures
purchased, return of securities loaned, pledged or sold pursuant to repurchase
or redemption of Fund Shares, payment of Custodian's fees, or where Custodian
shall incur or be assessed any taxes, charges, expenses, assessments, claims or
liabilities for which Custodian is entitled to be reimbursed or indemnified
under this Agreement (collectively the "Liabilities"). To further secure
Custodian's right to repayment of the Liabilities, Fund herewith grants to
Custodian a security interest in the property of the Fund to which such
obligation(s) relate(s) at any time held by, or for the account of, or under the
control of, Custodian.
6. COMPENSATION
Fund will pay to Custodian such compensation as is stated in the Fee Schedule
attached hereto as Exhibit A which may be changed from time to time as agreed to
in writing by Custodian and Fund. Custodian may charge such compensation against
monies held by it for the account of the Fund to which such obligation(s)
relate(s). Custodian will also be entitled, notwithstanding the provisions of
Sections or 5.D. hereof, to charge against any monies held by it for the account
of the Fund to which such obligation(s) relate(s) the amount of any loss,
damage, liability or expense for which it shall be entitled to reimbursement
under the provisions of this Agreement including fees or expenses due to IFTC
for other services provided to the Fund by the Custodian. Custodian will not be
entitled to reimbursement by Fund for any loss or expenses of any subcustodian.
7. TERMINATION
The term of this Agreement shall be one year. Either party to this Agreement may
terminate the same by notice in writing, delivered or mailed, postage prepaid,
to the other party hereto and received not less than ninety (90) days prior to
the date upon which such termination will take effect. Upon termination of this
Agreement, Fund will pay to Custodian such compensation for its reimbursable
disbursements, costs and expenses paid or incurred to such date and Fund will
use its best efforts to obtain a successor custodian. Unless the holders of a
"majority" (as that term is defined under the Investment Company Act of 1940) of
the outstanding shares of "Capital Stock" of Fund vote to have the securities,
funds and other properties of the Fund held under this Agreement delivered and
paid over to some other person, firm or corporation specified in the
16
vote, having not less the Two Million Dollars ($2,000,000) aggregate capital,
surplus and undivided profits, as shown by its last published report, and
meeting such other qualifications for Custodian as set forth in the Bylaws of
Fund, the Board of Directors of Fund will, forthwith upon giving or receiving
notice of termination of this Agreement, appoint as successor custodian a bank
or trust company having such qualifications. Nothing hereinabove shall impose a
duty upon the Fund to call for a vote of its shareholders with respect to
whether to terminate the Agreement. Custodian will, upon termination of this
Agreement deliver to the successor custodian so specified or appointed, at
Custodian's office, all securities then held for the Fund by Custodian
hereunder, duly endorsed and in form for transfer, all funds and other
properties of Fund deposited with or held by Custodian hereunder, or will
co-operate in effecting changes in book-entries at the Depository Trust Company
or in the Treasury/Federal Reserve Book Entry System pursuant to 31 CFR Sec.
306.118 In the event no such vote has been adopted by the stockholders of Fund
and no written order designating a successor custodian has been delivered to
Custodian on or before the date when such termination becomes effective, then
Custodian will deliver the securities, funds and properties held for the Fund to
a bank or trust company at the selection of Custodian and meeting the
qualifications for custodian, if any, set forth in the Bylaws of Fund and having
not less that Two Million Dollars ($2,000,000) aggregate capital, surplus and
undivided profits, as shown by its last published report. Upon either such
delivery to a successor custodian, Custodian will have no further obligations or
liabilities under this Agreement. Thereafter such bank or trust company will be
the successor custodian under this Agreement and will be entitled to reasonable
compensation for its services. In the event that no such successor custodian can
be found, Fund will submit to its shareholders before permitting delivery of the
cash and securities owned by Fund to anyone other than a successor custodian,
the question of whether the Fund will be liquidated or function without a
custodian. Notwithstanding the foregoing requirement as to delivery upon
termination of this Agreement, Custodian may make any other delivery of the
securities, funds and property of the Fund permitted by the Investment Company
Act of 1940, Fund's Certificate of Incorporation and Bylaws then in effect or
apply to a court of competent jurisdiction for the appointment of a successor
custodian.
8. NOTICES
Notices, requests, instructions and other writings received by Fund at Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or at such other address as Fund may have
designated to Custodian in writing, will be deemed to have been properly given
to Fund hereunder; and notices, requests, instructions and other writings
received by Custodian at its offices at 127 West 10th
00
Xxxxxx, 00xx Xxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000, or to such other address as it
may have designated to Fund in writing, will be teemed to have been properly
given to Custodian hereunder. Until further notice is given to the Custodian,
all notices and writings to be delivered to the Fund by Custodian shall be given
to Xx. Xxxxxx Xxxxxxxxxx, c/x Xxxxx &Co., Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 and IFTC shall on a best efforts basis also give a copy to Xx. Xxxxxx X.
Xxxxxxx at the same address.
9. MISCELLANEOUS
A. This Agreement is executed and delivered in the State of Missouri and shall
be governed by the laws of said state.
B. All the terms and provisions of this Agreement shall be binding upon, inure
to the benefit of, and be enforceable by the respective successor and assigns of
the parties hereto.
C. No provisions of the Agreement may be amended or modified, in any manner
except by a written agreement properly authorized and executed by both parties
hereto.
D. The captions in this Agreement are included for convenience of reference
only, and in no way define or delimit any of the provisions hereof or otherwise
affect their construction or effect.
E. This Agreement shall become effective at the opening of business on the 9th
day of May, 1988.
F. This Agreement may be executed simultaneously in two or more counterparts,
each of which will be deemed an original but all of which together will
constitute one ant the same instrument.
G. If any part, term or provision of this Agreement is by the courts held to be
illegal, in conflict with any law or otherwise invalid, the remaining portion or
portions shall be considered severable and not be affected, and the rights and
obligations of the parties shall be construed and enforced as if the Agreement
did not contain the particular part, term or provision held to be illegal or
invalid.
H. Custodian will not release the identity of Fund to an issuer which requests
such information pursuant to the Shareholder Communications Act of 1985 for the
specific purpose of direct communications between such issuer and Fund unless
the Fund directs the Custodian otherwise.
18
I. This Agreement may not be assigned by either party without prior written
consent of the other party.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly respective authorized officers.
INVESTORS FIDUCIARY TRUST COMPANY
By: /s/ Xxxxxxxxxxx X. Xxxxx, Vice President
ATTEST: /s/ Xxxxxx X. Xxxxxxx, Assistant Secretary
COWEN INCOME + GROWTH FUND, INC.
By: /s/ Xxxxxx Xxxxxxx, Treasurer
ATTEST: /s/ Xxxxx Xxxxxx, Secretary
