FORM OF
CUSTODIAN AGREEMENT
FIRST INVESTORS SINGLE PAYMENT AND PERIODIC
PAYMENT PLANS FOR ACCUMULATION OF SHARES OF
FIRST INVESTORS GLOBAL FUND, INC.
THIS AGREEMENT, dated the day of , 19 , by and between FIRST INVESTORS
CORPORATION, a corporation duly organized and existing under the laws of the
State of New York (herein called "Sponsor"), and IRVING TRUST COMPANY, a banking
corporation organized and existing under the laws of the State of New York
(herein called "Custodian").
WITNESSETH:
WHEREAS, the Sponsor acts as issuer of a unit investment trust (the
"Trust"), as defined in Section 4(2) of the Investment Company Act of 1940, as
amended, which accumulates shares of stock of First Investors Global Fund, Inc.
and distributes to the public single payment plan certificates and periodic
payment plan certificates with and without insurance issued by the Trust; and
WHEREAS, under Section 26(a) of the Investment Company Act of 1940, as
amended, the agreement of custodianship pursuant to which the securities of the
Trust are issued and sold must designate a trustee or custodian; and
WHEREAS, the Custodian is willing to be designated as Custodian and to act
in accordance with the provisions of this Agreement.
NOW THEREFORE, in consideration of the premises, the parties hereto,
intending to be legally bound hereby, DO HEREBY AGREE AS FOLLOWS:
1. During the term of this Agreement Sponsor shall deliver or cause to be
delivered to Custodian, all securities, cash, checks, and other property in
which the funds of the Trust are invested or are to be invested, all funds held
for such investment, all equalization, all redemption, and other special funds
of the trust, and all income upon, accretions to, and proceeds of such property
and funds, subject to the terms of this Agreement.
2. The Custodian shall segregate and hold the securities and property
described in Section 1 above and delivered to it hereunder in custody under this
Agreement, subject to the following disbursements, deliveries, and exchanges:
(a) any disbursement, delivery, exchange or other surrender of
securities or property the Sponsor may direct by Written Instruction
(including disbursements and deliveries to planholders, creditors, the
Sponsor, its affiliates, and any other person named in any such Written
Instruction); and
(b) if the Custodian is not otherwise remunerated therefor, it may
charge against and collect from the income of the Trust, and from the
corpus thereof if no such income is available, such fees for its services
and such reimbursement for its expenses as are provided in Schedule A
attached hereto, as amended from time to time by mutual agreement of
Sponsor and Custodian, provided, however, that no such charge or collection
shall be made except for services theretofore performed or expenses
theretofore incurred.
3. The Sponsor shall be solely responsible for the performance of all
functions relating to the Trust not expressly and specifically required to be
performed hereunder by the Custodian. Without limitation of the foregoing, the
Sponsor shall:
(a) Provide for the rendition of, or render itself, all record keeping
and administrative services necessary to the maintenance of Planholder
accounts and operations of the Trust, including, but not limited to,
records reflecting the issuance of Plan Certificates and the names and
addresses of the holders of Plan Certificates;
(b) Be responsible for compliance by the Trust with any applicable
laws, rules and regulations of any regulatory agency or governmental body
having jurisdiction over the Trust including, but not limited to, filing
tax reports, returns or other tax documents required to be filed by the
Trust by applicable law or pursuant to the provisions of the Registration
Statement;
(c) Arrange for any desired or required substitution for Fund Shares,
and notify Planholders of any such substitution not later than five days
thereafter, in accordance with the provisions of applicable law;
(d) Arrange for the acquisition of Fund Shares and for the delivery to
the Custodian of the proper number of Certificates for such Fund Shares
registered in the name of the nominee of the Custodian;
(e) Arrange for the redemption of Fund Shares;
(f) Receive, and appropriately process, all Planholder Applications,
Share Certificates, payments and other contracts and communications,
including but not limited to securing for cancellation and cancelling
redeemed or terminated
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Plan Certificates.
4. All securities and property delivered to the Custodian hereunder shall
be maintained, subject to disbursements authorized in Section 2 above, in the
following accounts:
(a) The Custodian shall maintain a Cash account in its own banking
department for the deposit of: [i] all cash forwarded by the Sponsor; [ii]
cash dividends and capital gains distributions received on Fund Shares held
by the Custodian; [iii] insurance premiums and proceeds received by the
Custodian; [iv] proceeds of redemptions of Fund Shares received by the
Custodian and [v] any other accretions (in the form of cash or cash
equivalents) to property held by the Custodian hereunder received by the
Custodian. The Custodian shall at all times maintain an accurate total
balance of all cash and cash equivalents held from time to time in such
account, but shall have no obligation to establish or maintain separate
balances for any Planholder, any other breakdown of the aggregate balance,
or any separate accounting of the sources of such cash or cash equivalents.
(b) The Custodian shall maintain a Share Account which shall, at all
times reflect the total number of Fund Shares held by the Custodian in the
name of its nominee or nominees for the account of Planholders, but shall
have no obligation to establish or maintain separate balances reflecting
the number of Fund Shares accumulated for each Planholder or to maintain
any separate accounting of the sources of such Shares. The Share Account
balance shall consist of the total of all Fund Shares delivered to the
Custodian hereunder, whether such Fund Shares represent shares purchased
for Planholders, shares received as a result of a stock dividend, split,
merger or other reorganization involving the Fund, or shares representing
reinvested dividend or capital gains distributions. The Custodian shall
vote the Fund Shares in its possession at all regular and special meetings
of the Stockholders of the Fund in accordance with the Written Instructions
of the Sponsor and to that end shall execute and deliver to the Sponsor
proxies and other appropriate authorizations relating to the voting of Fund
Shares as such Written Instructions shall specify.
The Custodian is authorized and directed to withdraw cash or Fund
Shares held by it, and to deliver cash or certificates for shares (in
proper form for transfer) to the Sponsor, or its designee, upon receipt of,
and in accordance with, the Sponsor's Written Instructions.
5. Transfer of Fund Shares, Share Certificates, cash and other property
between Custodian and Sponsor shall be effected in accordance with the
operational arrangements described in Schedule B, attached hereto, as amended
from time to time by mutual agreement of Sponsor and Custodian.
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6. The term "Written Instruction(s)" shall mean an authorization,
configuration, instruction, or request issued by or on behalf of the Sponsor.
All Written Instructions shall be dated and bear the signature of such of the
officers and agents of the Sponsor, as may be authorized to sign Written
Instructions in accordance with the names and numbers specified in the most
recent incumbency and signature certificate delivered by the Sponsor to the
Custodian. Such incumbency and signature certificate shall set forth the names
and signatures of all persons authorized to sign Written Instructions and shall
be executed and attested to by the President and Secretary, respectively, of the
Sponsor and shall have the Sponsor's corporate seal affixed thereto. The
Custodian shall be fully protected in acting upon Written Instructions bearing
the signatures as set forth in the most recent incumbency certificate delivered
by the Sponsor to the Custodian. For the purposes of issuing "Written
Instructions" the term "Sponsor" shall include an affiliate of the Sponsor
appointed pursuant to Section 13(a) below.
7. In payment for its services under this Agreement, the Sponsor shall pay
to the Custodian, on a monthly basis, or in such other basis as the Custodian
and Sponsor may agree, the fees set forth in Schedule A hereto. If, after a
reasonable time has elapsed after demand therefor, the Custodian has not
received fees due, the Custodian may collect the amount owing in accordance with
Section 2 above, and in such event, the Custodian shall promptly notify the
Sponsor of the amount of charges collected, the source from which such charges
were collected and the date such collection was effected.
8. As soon as possible after the close of each month, and in no event,
later than the tenth working day of the subsequent month, the Custodian shall
render a statement to the Sponsor setting forth as of the end of said month the
closing balance of the Share Account (including Fund Shares confirmed for
delivery to the Custodian) and the closing balance of the Cash Account.
9. The Custodian shall be obliged to perform such duties and only such
duties as are specifically set forth in this Agreement, and no implied
obligations shall be read into this Agreement against the Custodian. Without
limiting the generality of the foregoing sentence, the Custodian specifically:
(a) is limited to bare custody of the assets and property delivered to
it hereunder, [subject to disbursement to such parties, including the
Sponsor, as the Sponsor may direct by Written Instruction] and to rendering
the reports described in Section 8.
(b) Except as provided in Section 4 above, assumes no duty, obligation
or responsibility whatsoever to exercise any voting or consent powers
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with respect to the Fund Shares held by it from time to time hereunder; no
duty to poll or inform Planholders on matters with respect to which
Planholders may exercise voting rights and shall incur no liability in
acting in accordance with Written Instructions received by the Custodian
from the Sponsor in connection with the exercise of voting rights by
Planholders.
(c) Assumes no duty, obligation or responsibility whatsoever to
handle, forward, or process in any way, notices of shareholder meetings,
proxy statements, annual reports, notices or written materials of any kind
sent to the Planholders.
(d) Shall not be liable for any taxes, assessments, exchange controls,
or other governmental charges which may be levied or assessed upon Fund
Shares held by it hereunder, upon income therefrom or otherwise whatsoever.
(e) Shall not be liable or responsible in any manner whatsoever for
any statement or omission in the Prospectuses or Registration Statements of
the Fund or the Trust, all of which are the sole responsibility of the
Sponsor of the Fund.
(f) Shall not be under any obligation to pay interest on any monies
received by the Custodian under or pursuant to this Agreement.
(g) Shall not be obliged to prosecute any claim on behalf of the
Planholders or the Sponsor, or to defend any claim against the same, except
as to any claim occasioned by the Custodian's own negligence, bad faith or
willful misconduct in the performance of its duties as specifically set
forth in this Agreement.
(h) Shall have no obligation whatsoever to maintain Planholder account
records of any kind or communicate with Planholders in any fashion.
(i) Shall not be liable for any securities or property except to the
extent that such securities and property are delivered into the physical
custody of the Custodian or its nominee. Property acknowledged by the
Deposit Bank to have been deposited in the "Transmission Account"
(described in Schedule B shall be deemed to be property delivered into the
physical custody of the Custodian or its nominee and any dispute concerning
transmission of said property between Deposit Bank and Custodian shall be
resolved by Custodian at its expense and risk. Any dispute as to whether
property was deposited in said Account shall be resolved by the Sponsor, at
its expense and risk.
10. No liability of any kind shall be attached to or incurred by the
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Custodian, by reason of its custody of the cash, Shares or other assets, held by
it from time to time under this Agreement, or otherwise by reason of its
position as Custodian hereunder, except only for its own negligence, bad faith,
or willful misconduct in the performance of its duties as specifically set forth
in this Agreement. Without limiting the generality of the foregoing sentence,
the Custodian:
(a) Shall not be liable for anything done or suffered to be done in
accordance with any Written Instruction.
(b) May rely and shall be protected in acting upon any signature,
instruction, request, letter of transmittal, certificate, opinion of
counsel, statement, instrument, report, notice, consent, order, or other
paper or document reasonably believed by it to be genuine and to have been
signed or presented by the proper party or parties. With respect to
documents and notices of material importance to the Sponsor [other than
those received in the ordinary course of business] the Custodian shall give
reasonable notice thereof to the Sponsor.
11. The Sponsor hereby undertakes to indemnify, defend, and save harmless
the Custodian of and from any and all claims, actions, assessments, proceedings,
demands, costs, expenses, liabilities, losses, and damages whatsoever arising
out of, or in connection with, the Custodian's custody of the Securities and
property held by it from time to time under this Agreement, or out of, or in
connection with, the Custodian's status, acts or omissions under this Agreement,
except only for the Custodian's own negligence, bad faith or willful misconduct
in the performance of its duties as specifically set forth in this Agreement.
Without limiting the generality of the foregoing, the Sponsor hereby undertakes
to indemnify, defend, and save harmless the Custodian of and from any and all
claims, actions, assessments, proceedings, demands, costs, expenses,
liabilities, losses and damages whatsoever:
(a) Relating to any Securities, or property which were not delivered
into the physical custody of the Custodian or its nominee.
(b) Due to the failure of the Sponsor, the Fund or the unit investment
trust, to comply with any applicable law, regulation, or order of the
Securities and Exchange Commission, the Federal Government, or any other
State or Federal governmental authority, body or board, or of any
self-regulatory body having jurisdiction relating to the sale,
registration, or qualification of the Plans or any of them, or the Shares
sold in connection therewith, or any other aspect of the unit investment
trust whatsoever.
(c) Due to the failure of the Sponsor to comply with any of its
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proper undertakings and responsibilities in connection with the Plans.
(d) Due to or in connection with the performance or non-performance of
the Custodian's obligations as specifically set forth in this Agreement,
unless such performance or non-performance was due to the negligence, bad
faith or willful misconduct of the Custodian.
(e) Arising out of a claim that with respect to Plans issued prior to
the effective date of this Agreement, such Plans, the applications
therefor, the declarations of trust and other documents relating thereto
require the Bank or First Pennsylvania Bank N.A. to perform duties which it
was required to perform heretofore but is no longer required to perform
under this Agreement.
12. In connection with the indemnification provided by Section 11 above,
the following additional provisions shall be effective:
(a) The Custodian shall not confess, settle, compromise, or pay any
claim, action, assessment, proceeding demand, cost expense, liability,
loss, or damage subject to indemnification under Section 11 without at
least fourteen (14) days' prior written notice to the Sponsor setting forth
the general nature of the matter including the identity of the claimant.
During said fourteen (14) day period, the Sponsor may assume the defense of
any such claim, action, assessment, proceeding or demand.
(b) Upon written request of the Custodian, the Sponsor shall assume
the entire defense of any claims subject to the indemnity set forth in
Section 11 or the joint defense with the Custodian of such claim as the
Custodian shall reasonably request.
(c) All indemnity, defense, and assurance provisions of this Agreement
shall indefinitely survive the termination of this Agreement.
13. Either the Custodian or the Sponsor may terminate this Agreement at any
time upon one hundred twenty (120) days' notice in writing to the other. Upon
receipt or delivery of any such notice of termination, the Sponsor shall
promptly obtain as a successor custodian, a bank or trust company in good
standing and with legal capacity to act. On the effective date of termination,
the Custodian shall transfer to such successor custodian all assets of the Trust
then held by it as Custodian, less charges due the Custodian. If no successor
custodian is prepared to accept transfer on the effective date of termination,
the parties may extend the termination date upon such terms and conditions as
the parties hereto may mutually agree, which terms must guarantee the Custodian
a reasonable return on its services. Unless such mutual agreement is reached
with respect to the rendition
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of services by the Custodian, the Custodian may, in its discretion, refuse to
accept any assets relating to Plan Certificates issued after the termination
date set forth in such notice, but this Agreement shall remain in effect with
respect to all Plan Certificates issued prior to such termination date until the
respective termination dates of each Plan Certificate issued prior to the
termination date set forth in the notice of termination.
(a) This Agreement shall not be assigned, modified or amended by
either of the parties hereto without the prior written consent of the other
party provided, however, that the Sponsor may assign to an affiliate
thereof its responsibility to provide Planholder bookkeeping and
administrative services required for the operation of the Trust or
necessary to the maintenance of Planholders' accounts.
(b) The Registration Statement, Prospectuses, Plan Applications, Plan
Certificates, Schedules (except Schedule A), confirmations, notices, sales
literature, tax and other returns and reports and documents of the Trust
and all communications with Planholders shall be prepared by, or at the
direction of, the Sponsor and any revisions or amendments of the foregoing
materials shall be prepared and effected by the Sponsor without the
approval of the Custodian provided, however, that to the extent that any of
such materials contain provisions or statements describing the functions of
the Custodian, such provisions and statements shall be subject to the
reasonable approval of the Custodian.
14. Nothing in this Agreement is intended to or shall require the Custodian
to perform any function or service on any day when the Custodian is closed for
general business.
15. The terms as defined in this Section wherever used in this Agreement,
or in any amendment or supplement hereto, shall have the meanings herein
specified unless the context otherwise requires:
(a) The term "Fund" shall mean First Investors Global Fund, Inc., a
Maryland corporation, and any investment company registered with the
Securities and Exchange Commission under the Investment Company Act of
1940, as amended, substituted for First Investors Global Fund, Inc.
(b) The term "Fund Shares" means shares of common stock issued by the
Fund and any shares of common stock substituted therefor by the Sponsor.
(c) The "Plan Certificate" shall mean a Certificate issued by the
Trust evidencing a beneficial interest in the assets and income of the
Trust and shall include Single Payment Plan Certificates, Periodic Payment
Plan Certificates
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and Periodic Payment Plan Certificate with Insurance, a specimen of which
is filed as an exhibit to the Registration Statement.
(d) The term "Plan Application" shall mean an application for the
issuance of Plan Certificates.
(e) The term "Securities" shall include Fund Shares and any other
security in which assets of the unit investment trust may be invested.
(f) The term "Trust" means the unit investment trust which issues Plan
Certificates for the accumulation of Fund Shares in accordance with the
provisions of this Agreement or a prior agreement with First Pennsylvania
Bank N.A., if any.
16. This Agreement shall be executed in four or more counterparts, each of
which shall be deemed an original and all of which taken together shall be
deemed one and the same agreement. This Agreement shall be governed by and
interpreted in accordance with the laws of the State of New York and shall
become effective on the first date written above and shall thereupon supercede
all previous agreements.
IN WITNESS WHEREOF, the Sponsor has caused this Agreement to be executed by
its President, attested by its Secretary and its corporate seal to be hereunto
affixed; and the Custodian has caused this Agreement to be executed by its duly
authorized Vice President and attested to by one of its Assistant Secretaries,
and its corporate seal to be hereunto affixed, all as of the date and year first
above written.
(SEAL) FIRST INVESTORS CORPORATION
ATTEST:
____________________ By:____________________________
Secretary & Counsel President
(SEAL)
ATTEST: IRVING TRUST COMPANY
__________________ By:__________________________
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Assistant Secretary Vice President
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SCHEDULE A
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Operational Agreement for Transmitting
Planholder Payments, Sponsor and Planholder
Fund Shares, and Redemption Proceeds,
Dividends and Distributions Paid in
Cash to Planholders.
1. Sponsor shall instruct all Planholders to remit payments to the Sponsor,
and to make such payments payable to the order of the Sponsor.
2. Upon receipt of Planholders' payments, Sponsor shall deposit such
payments into an account maintained by the Custodian in a New York or New Jersey
bank or savings and loan acceptable to the Sponsor for transmission to the
Custodian (the "Transmission Account").
3. The Sponsor or its affiliate designated pursuant to Section 13(a) of the
Agreement shall maintain at Irving Trust Company or at a bank or savings and
loan located in New York, New Jersey or Pennsylvania a checking account (herein
called the "Payment Account") and shall remit via said Payment Account to the
proper payees the amounts due from redemption of Fund Shares and from dividends
and distributions on Fund Shares payable in cash to Planholders. On each date
that the Sponsor or its affiliate mails or otherwise forwards checks drawn on
said Payment Account to payees, Sponsor or its affiliate shall give the
Custodian immediate telephone advice (to be confirmed by Written Instructions)
to transfer the amount of said checks, in collected balances, from the Custody
Account to the Payment Account. The Sponsor shall be responsible for maintaining
at all times sufficient collected balances in the Custody Account to transfer
funds to cover all checks issued in accordance with this procedure. When
redemption requests require presentation of Fund Shares to the Fund or its agent
and when dividends and capital gains distributions on Fund Shares are paid to
the Custodian, the Custodian shall promptly notify the Sponsor or its affiliate
designated pursuant to Section 13(a) of the Agreement when the proceeds of such
redemption or the capital gains distributions or dividends, as the case may be,
are received by the Custodian and such notice shall notify the amount received
in each case.
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SCHEDULE B
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Operational Arrangements Regarding the Transfer of Fund Shares, Share
Certificates, Cash and other Property Between Custodian and Sponsor
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