CUSTODY AGREEMENT
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THIS AGREEMENT made effective as of the ____ day of __________,
1995, 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, Xxxxxx Xxxx, Xxxxxxxx
00000 ("Custodian"), and XXXXXX ONE HUNDRED FUND, INC., a Maryland
corporation, referred to as the "Fund," having its principal office
and place of business at 000 Xxxxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxx,
Xxxxxxxx 00000.
WITNESSETH:
WHEREAS, Fund desires to appoint Investors Fiduciary Trust
Company as Custodian of the securities and monies of Fund's investment
portfolio; 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
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Custodian as custodian of the Fund which is to include
appointment as custodian of the securities and monies at any time
owned by the Fund.
2. DELIVERY OF CORPORATE DOCUMENTS. Fund has delivered or will
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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
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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 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
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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 segregated
in a separate account. 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. 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
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responsible for the securities and monies of Fund only until
they have been transmitted to and received by other persons
as permitted under the terms of this Agreement, except for
securities and monies transmitted to subcustodians appointed
under Section 3.S of this Agreement for which Custodian
remains responsible to the extent provided in Section 3.S of
this Agreement. Custodian may participate directly or
indirectly through a subcustodian in the Depository Trust
Company, Treasury/Federal Reserve Book Entry System or
Participant Trust Company (PTC) or other depository approved
by the Fund (as such entities are defined at 17 CFR Section
270.17f-4(b)) (each a "Depository" and collectively the
"Depositories").
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 arising solely from Custodian or its nominee
acting as a recordholder 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
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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
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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 Fund making such purchase;
2. The name of the issuer and description of the security;
3. The number of shares or the principal amount purchased,
and accrued interest, if any;
4. The trade date;
5. The settlement date;
6. The purchase price per unit and the brokerage
commission, taxes and other expenses payable in
connection with the purchase;
7. The total amount payable upon such purchase; and
8. The name of the person from whom or the broker or
dealer through whom the purchase was made.
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 for the account of the Fund
which may result in an overdraft because the monies held by
the Custodian for the account of Fund are insufficient to
pay the total amount payable upon such purchase. Except as
otherwise instructed by Fund, such payment shall be made by
the Custodian only upon receipt of securities: (a) by the
Custodian; (b) by a clearing corporation of a national
exchange of which the Custodian is a member; or (c) by a
Depository. Notwithstanding the foregoing, (i) in the case
of a repurchase agreement, the Custodian may release funds
to a Depository prior to the receipt of advice from the
Depository that the securities underlying such repurchase
agreement have been
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transferred by book-entry into the account maintained with
such Depository by the Custodian, on behalf of its
customers, provided that the Custodian's instructions to the
Depository require that the Depository make payment of such
funds only upon transfer by book-entry of the securities
underlying the repurchase agreement in such account; (ii) in
the case of time deposits, call account deposits, currency
deposits and other deposits, foreign exchange transactions,
futures contracts or options, the Custodian may make payment
therefor before receipt of an advice or confirmation
evidencing said deposit or entry into such transaction; and
(iii) in the case of the purchase of securities, the
settlement of which occurs outside of the United States of
America, the Custodian may make, or cause a subcustodian
appointed pursuant to Section 3.S.2. of this Agreement to
make, payment therefor in accordance with generally accepted
local custom and market practice.
G. Sales and Deliveries of Investments of the Fund - Other than
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Options and Futures
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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 Fund making such sale;
2. The name of the issuer and description of the
securities;
3. The number of shares or principal amount sold, and
accrued interest, if any;
4. The date on which the securities sold were purchased or
other information identifying the securities sold and
to be delivered;
5. The trade date;
6. The settlement date;
7. The sale price per unit and the brokerage commission,
taxes or other expenses payable in connection with such
sale;
8. The total amount to be received by Fund upon such sale;
and
9. The name and address of the broker or dealer through
whom or person to whom the sale was made.
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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.
Except as otherwise instructed by Fund, such delivery shall
be made upon receipt of: (a) payment therefor in such form
as is satisfactory to the Custodian; (b) credit to the
account of the Custodian with a clearing corporation of a
national securities exchange of which the Custodian is a
member; or (c) credit to the account of the Custodian, on
behalf of its customers, with a Depository. Notwithstanding
the foregoing: (i) in the case of securities held in
physical form, such securities shall be delivered in
accordance with "street delivery custom" to a broker or its
clearing agent; or (ii) in the case of the sale of
securities, the settlement of which occurs outside of the
United States of America, the Custodian may make, or cause a
subcustodian appointed pursuant to Section 3.S.2. of this
Agreement to make, such delivery upon payment therefor in
accordance with generally accepted local custom and market
practice.
H. Purchases or Sales of Security Options, Options on Indices
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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. The name of the Fund making such purchase or sale;
2. 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;
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i. Market on which option traded;
j. Name and address of the broker or dealer through
whom the sale or purchase was made.
3. 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;
g. Whether the transaction is an opening, exercising,
expiring or closing transaction;
h. Whether the transaction involves a put or call;
i. Whether the option is written or purchased;
j. The name and address of the broker or dealer
through whom the sale or purchase was made, or
other applicable settlement instructions.
4. Security Index Futures 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;
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); and
f. The name and address of the futures commission
merchant through whom the sale or purchase was
made, or other applicable settlement instructions.
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5. Option on Index Future Contracts
a. The underlying index futures 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; and
i. The market on which the option is traded.
I. Securities Pledged or Loaned
----------------------------
If specifically allowed for in the prospectus 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.
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.
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J. Routine Matters
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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
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Custodian will open and maintain a special purpose deposit
account 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 said Account. 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 Fund's Account, Custodian agrees to make
Fed Funds available to the Fund in the amount of the check.
Deposits made by Federal Reserve wire will be available to
the Fund immediately and ACH wires will be available to the
Fund on the next business day. Income earned on the
portfolio securities will be credited to the Fund based on
the schedule attached as Exhibit A. The Custodian will be
entitled to reverse any credited amounts where credits have
been made and monies are not finally collected, provided
that the Custodian has made reasonable efforts to collect
such uncollected income. If monies are collected after such
reversal, the Custodian will credit the applicable Fund in
that amount. Custodian may open and maintain Accounts in
its own banking department, in State Street Bank and Trust
Company, and in such other banks or trust companies as may
be designated by it and as properly authorized by resolution
of the Board of Directors of the Fund, such Accounts,
however, to be in the name of custodian and subject only to
its draft or order.
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L. Income and other Payments to the Portfolio
------------------------------------------
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 Fund in
accordance with the schedule attached hereto as Exhibit
A. If, for any reason, the Fund is credited with
income that is not subsequently collected, Custodian
may reverse that credited amount provided that the
Custodian has made reasonable efforts to collect such
uncollected income;
2. Execute ownership and other certificates and affidavits
for all federal, state and local tax purposes in
connection with the collection of bond and note
coupons; and
3. Take such other action as may be necessary or proper in
connection 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
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instructions. Unless prior instructions have been received
to the contrary, Custodian will, without further
instructions, sell any rights held for the account of a
Portfolio on the last trade date prior to the date of
expiration of such rights.
M. Payment of Dividends and other Distributions
--------------------------------------------
On the declaration of any dividend or other distribution on
the shares of the Fund ("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. 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 Fund, insofar as the same
shall be available for such 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 Fund Shares issued and outstanding on the
record date established by such Resolution.
N. Shares of Fund Purchased by Fund
--------------------------------
Whenever any Fund Shares are repurchased or redeemed by
Fund, Fund or its agent shall advise Custodian of 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 Account of Fund and either deposit the same in the
account maintained for the purpose of paying for the
repurchase or redemption of Fund Shares or deliver the same
in accordance with such advice.
Custodian shall not have any duty or responsibility to
determine that Fund Shares 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.
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O. Shares of Fund Purchased from Fund
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Whenever Fund Shares are purchased from Fund, Fund will
deposit or cause to be deposited with Custodian the amount
received for such shares.
Custodian shall not have any duty or responsibility in its
capacity as Custodian of the Fund 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 respect thereto, or take any other similar action.
Q. Disbursements
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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 name of the person to whom payment is to
be made, the amount of the payment, and the purpose of the
payment.
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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 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 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 the 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 Subcustodian
---------------------------
1. Notwithstanding any other provisions of this Agreement,
all or any of the 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 selected by the
Custodian must have the qualifications required for
custodian under the Investment Company Act of 1940, as
amended. Custodian shall be responsible to the Fund for
any loss, damage or expense suffered or incurred by the
Fund resulting from the actions or omissions of any
subcustodians selected and appointed by Custodian
(except subcustodians appointed at the request of Fund
and as provided in Subsection 2 below) to the same
extent Custodian would be responsible to the Fund under
Section 5. of this Agreement if it committed the act or
omission itself. Upon request of the Fund, Custodian
shall be willing to contract with other subcustodians
reasonably acceptable to the
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Custodian for purposes of (i) effecting third-party
repurchase transactions with banks, brokers, dealers,
or other entities through the use of a common custodian
or subcustodian, or (ii) providing depository and
clearing agency services with respect to certain
variable rate demand note securities, or (iii) for
other reasonable purposes specified by Fund; provided,
however, that the Custodian shall be responsible to the
Fund for any loss, damage or expense suffered or
incurred by the Fund resulting from the actions or
omissions of any such subcustodian only to the same
extent such subcustodian is responsible to the
Custodian. The Fund shall be entitled to review the
Custodian's contracts with any such subcustodians
appointed at the request of Fund.
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
governing Board, 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. The Fund
shall be provided the contract with the domestic
subcustodian who shall contract with the eligible
foreign subcustodians. The Custodian shall be
responsible for the monies and securities of Fund held
by eligible foreign subcustodians to the extent the
domestic subcustodian with which the Custodian
contracts is responsible to Custodian.
T. 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
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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.
U. 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 not specifically
governing custodians or banks which might necessitate
changes in Custodian's responsibilities or procedures.
V. Advances
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In the event Custodian or any subcustodian shall, in its
sole discretion, advance cash or securities for any purpose
(including but not limited to securities settlements,
purchase or sale of foreign exchange or foreign exchange
contracts and assumed settlement) for the benefit of the
Fund, the advance shall be payable by the Fund on demand.
Any such cash advance shall be subject to an overdraft
charge at the rate set forth in the then-current fee
schedule from the date advanced until the date repaid. As
security for each such advance, Fund hereby grants Custodian
and such subcustodian a lien on and security interest in all
property at any time held for the account of Fund, including
without limitation all assets acquired with the amount
advanced. Should the Fund fail to promptly repay the
advance, the Custodian and such subcustodian shall be
entitled to utilize available cash and to dispose of the
Fund's assets pursuant to applicable law to the extent
necessary to obtain reimbursement of the amount advanced and
any related overdraft charges.
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X. Xxxxxxxx of Rights; Tender Offers
---------------------------------
Upon receipt of instructions, the Custodian shall: (a)
deliver warrants, puts, calls, rights or similar securities
to the issuer or trustee thereof, or to the agent of such
issuer or trustee, for the purpose of exercise or sale,
provided that the new securities, cash or other assets, if
any, are to be delivered to the Custodian; and (b) deposit
securities upon invitations for tenders thereof, provided
that the consideration for such securities is to be paid or
delivered to the Custodian or the tendered securities are to
be returned to the Custodian.
4. INSTRUCTIONS.
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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 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 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 Fund's account monies, (provided such monies are on hand
or available) in connection with Fund's transactions and to
wire transfer such monies to such
-16-
broker, dealer, subcustodian, bank or other agent specified
in such instructions by a 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.
C. If Custodian shall provide Fund direct access to any
computerized recordkeeping and reporting system used
hereunder or if Custodian and Fund shall agree to utilize
any electronic system of communication, Fund shall be fully
responsible for any and all consequences of the use or
misuse of the terminal device, passwords, access
instructions and other means of access to such system(s)
which are utilized by, assigned to or otherwise made
available to the Fund. Fund agrees to implement and enforce
appropriate security policies and procedures to prevent
unauthorized or improper access to or use of such system(s).
Custodian shall be fully protected in acting hereunder upon
any instructions, communications, data or other information
received by Custodian by such means as fully and to the same
effect as if delivered to Custodian by written instrument
signed by the requisite authorized representative(s) of
Fund. Fund shall indemnify and hold Custodian harmless from
and against any and all losses, damages, costs, charges,
counsel fees, payments, expenses and liability which may be
suffered or incurred by Custodian as a result of the use or
misuse, whether authorized or unauthorized, of any such
system(s) by Fund or by any person who acquires access to
such system(s) through the terminal device, passwords,
access instructions or other means of access to such
system(s) which are utilized by, assigned to or otherwise
made available to the Fund, except to the extent
attributable to any negligence or willful misconduct by
Custodian.
5. LIMITATION OF LIABILITY OF CUSTODIAN.
-------------------------------------
A. Notwithstanding any other provisions of this Agreement,
Custodian will hold harmless and indemnify Fund from and
against any loss or liability, including
-17-
attorney's fees, arising out of Custodian's breach of this
Agreement or its negligence, willful misconduct or bad
faith. Custodian shall not be liable for consequential,
special, or punitive 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 Custodian reasonably believes that it
could 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. Fund shall hold harmless and indemnify Custodian from and
against any loss or liability, including attorney's fees,
arising out of Fund's breach of this Agreement or its
negligence, willful misconduct or bad faith.
C. Custodian may rely upon the advice of Fund and upon
statements of Fund's public 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.
D. 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 indemnified by Fund in
an amount and form satisfactory to Custodian against any
liability on account of such action.
E. 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.
F. 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 entitled to receive as conclusive proof of any
fact or matter required to be ascertained from Fund
-18-
hereunder, a certificate signed by the Fund's President, or
other officer specifically authorized for such purpose.
G. 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 securities of
Fund, or the sufficiency of the amount to be received
therefor;
4. The legality of the repurchase or redemption of any
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.
H. Custodian shall not be liable for, or considered to be
Custodian of, any money represented by any check, draft,
wire transfer, clearinghouse 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.
I. Except as otherwise provided in this Agreement, Custodian
shall not be responsible for loss occasioned by the acts,
neglects, defaults or insolvency of any broker, bank, trust
company, or any other person with whom Custodian may deal in
the absence of negligence, or bad faith on the part of
Custodian.
J. Custodian shall be responsible to the Fund for any loss,
damage or expense suffered or incurred by the Fund resulting
from the actions or omissions of any Depository only to the
same extent such Depository is responsible to Custodian.
-19-
K. 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 companies which will act as
subcustodians for Fund pursuant to Section 3.S. of this
Agreement.
6. COMPENSATION. Fund will pay to Custodian such compensation as is
------------
stated in the Fee Schedule attached hereto as Exhibit B 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 Fund. Custodian will also be
entitled, notwithstanding the provisions of Sections 5.C. or 5.D.
hereof, to charge against any monies held by it for the account
of Fund the amount of any loss, damage, liability, advance, or
expense for which it shall be entitled to reimbursement from the
Fund under the provisions of this Agreement including fees or
expenses due to Custodian for other services provided to the Fund
by the Custodian.
7. TERMINATION. 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 sixty (60)
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 of the outstanding shares of the Fund vote
to have the securities, funds and other properties held under
this Agreement delivered and paid over to some other person, firm
or corporation specified in the 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 governing documents 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. Custodian will, upon
termination of this Agreement, deliver to the successor custodian
so specified or appointed, at Custodian's office, all securities
then held 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
-20-
at the Depository Trust Company or in the Treasury/Federal
Reserve Book-Entry System or other depository 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 of Fund to a bank or
trust company at the selection of Custodian and meeting the
qualifications for custodian, if any, set forth in the governing
documents of Fund and having not less than 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 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 Fund which is permitted by the
Investment Company Act of 1940, Fund's Articles 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 000 Xxxxxxxxxx Xxxxxxxxx, Xxxxx 000,
Xxxxxx, Xxxxxxxx 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 000 Xxxx 00xx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000, or
to such other address as it may have designated to Fund in
writing, will be deemed to have been properly given to Custodian
hereunder.
9. MISCELLANEOUS.
-------------
A. This Agreement is executed and delivered in the State of
Missouri and shall be governed by the laws of said state.
-21-
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 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 and the same
instrument.
F. 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.
G. 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.
H. This Agreement may not be assigned by either party without
prior written consent of the other party.
I. If any provision of the Agreement, either in its present
form or as amended from time to time, limits, qualifies, or
conflicts with the Investment Company Act of 1940 and the
rules and regulations promulgated thereunder, such statutes,
rules and regulations shall be deemed to control and
supersede such provision without nullifying or terminating
the remainder of the provisions of this Agreement.
J. The Custody Agreement dated March 24, 1992, between
Custodian and Fund is hereby cancelled and superseded
effective as of the date hereof, except that all
-22-
rights, duties and liabilities which may have arisen
thereunder prior to the effectiveness hereof shall continue
and survive.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective duly authorized officers.
INVESTORS FIDUCIARY TRUST COMPANY
By: ___________________________________
Title: _______________________________
XXXXXX ONE HUNDRED FUND, INC.
By: ___________________________________
Title: _______________________________
-23-
EXHIBIT A
---------
INVESTORS FIDUCIARY TRUST COMPANY
AVAILABILITY SCHEDULE BY TRANSACTION TYPE
TRANSACTION DTC PHYSICAL FED
----------- -------------------------- ------------------------------- --------------------------
TYPE CREDIT DATE FUNDS TYPE CREDIT DATE FUNDS TYPE CREDIT DATE FUNDS TYPE
--------------------------------------------------------------------------------------------------------------------
Calls Puts As Received C or F* As Received C or F*
Maturities As Received C or F* Mat. Date C or F* Mat. Date F
Tender Reorgs. As Received C As Received C N/A
Dividends Paydate C Paydate C N/A
Floating Rate Int. Paydate C Paydate C N/A
Floating Rate Int. (No N/A As Rate Received C N/A
Rate)
Mtg. Backed P&I Paydate C Paydate + 1 Bus. C Paydate F
Day
Fixed Rate Int. Paydate C Paydate C Paydate F
Euroclear N/A C Paydate C
Legend
------
C = Clearinghouse Funds
F = Fed Funds
N/A = Not Applicable
* Availability based on how received.
