Exhibit (g)(1)
CUSTODY AGREEMENT
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THIS AGREEMENT made the 14th day of April, 1993, 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 ONE FUND, INC., a Maryland corporation
having its principal office and place of business at 000 Xxxxxxx Xxxxxx Xxxx
Xxxx, Xxxxxxxxxx, Xxxx 00000 ("Fund").
WITNESSETH:
WHEREAS, Fund desires to appoint Investors Fiduciary Trust Company as
custodian of the securities and monies of Fund's International Portfolio
("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 Custodian
as custodian of the Portfolio which is to include:
A. Appointment as custodian of the securities and monies at any time owned by
the Fund and held in the Portfolio; and
B. Appointment as agent to perform certain accounting and recordkeeping
functions required of a duly registered investment company in compliance
with applicable provisions of federal, state and local laws, rules and
regulations including, as may be required:
1. Provide information necessary for Fund to file required financial
reports; maintaining and preserving required books, accounts and
records as the basis for such reports; and performing certain daily
functions in connection with such accounts and records.
2. Calculating daily net asset value of the Portfolio, and
3. Acting as liaison with independent auditors.
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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.
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 of the Portfolio's 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
--------------------------------
Fund shall turn over to Custodian all of the Portfolio's relevant accounts
and records previously maintained by the Fund or its agent. 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
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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 Portfolio assets
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 the Fund. The Custodian is responsible for
the safekeeping of 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
United Missouri Bank, N.A (UMB), United Missouri Trust Company of New York
(UMBTC), and First National Bank of Chicago (FNBC) for which Custodian
remains responsible. Custodian may participate directly or indirectly
through a subcustodian in the Depository Trust Company, Treasury/Federal
Reserve Book Entry System, Participant Trust Company or other depository
approved by the Fund (as such entities are defined at 17 CFR Section
270.17f-4(b).
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
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agrees to hold Custodian and its nominee harmless for any liability 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
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 for the
Portfolio 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;
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.
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In accordance with such instructions, Custodian will pay for out of monies
held for the account of 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 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 on behalf 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
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Futures
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Fund will, on each business day on which a sale of investment securities
of the Portfolio 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 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
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
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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
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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 with respect to the
Portfolio, 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;
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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.
3. 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.
4. Options 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;
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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.
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.
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K. Deposit Account
---------------
Custodian will open and maintain a special purpose deposit account in the
name of Custodian as custodian of the Portfolio ("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 the 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. If monies are collected after
such reversal, the Custodian will credit the Fund in that amount.
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 Fund in
accordance with the schedule attached hereto as Exhibit A. If, for any
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reason, the Fund is credited with income that is not subsequently
collected, Custodian may reverse that credited amount.
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 instructions. Unless prior
instructions have been received to the contrary, Custodian will, without
further instructions, sell any rights held for the account of Fund on the
last trade date prior to the date of expiration of such rights.
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M. Payment of Dividends and other Distributions
--------------------------------------------
On the declaration of any dividend or other distribution on the shares of
capital stock of the Portfolio ("Portfolio 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 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 Portfolio
Shares issued and outstanding on the record date established by such
resolution.
N. Shares of Portfolio Purchased by Fund
-------------------------------------
Whenever any Portfolio 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 Portfolio Shares
or deliver the same in accordance with such advice.
Custodian shall not have any duty or responsibility to determine that
Portfolio 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 Portfolio Purchased from Fund
---------------------------------------
Whenever Portfolio 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 to determine that
Portfolio 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
-------------
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 a detailed
statement of the amounts received or paid and of securities received or
delivered for the account of Fund during each business 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
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, 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 acting
as subcustodians as may be 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. The
Custodian may participate directly or indirectly in the Depository
Trust Company, Treasury/Federal Reserve Book Entry System, Participant
Trust Company (as such entities are defined at 17 CFR Sec.
270.17f-4(b)) or other depository approved by the Fund and with which
Custodian has a satisfactory direct or indirect contractual
relationship. Custodian will appoint UMB and UMBTC
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as subcustodians and Custodian shall be responsible for UMB and UMBTC
to the same extent Custodian is responsible to the Fund under Section
5. of this Agreement. Custodian is not responsible for DTC, the
Treasury/Federal Reserve Book Entry System, and PTC except to the
extent such entities are responsible to Custodian. Upon instruction of
the Fund, Custodian shall be willing to contract with such entities as
Bank of New York (BONY), Xxxxxx Guaranty and Trust Company (MGTC),
Chemical Bank (CB), and Bankers Trust Company (BT) for variable rate
securities and Custodian will be responsible to the Fund to this same
extent those entities are responsible to Custodian. The Fund shall be
entitled to review Custodian's contracts with BONY, MGTC, CB, and BT.
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 deemed by
the Fund to be 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). Custodian shall be responsible for the monies and
securities of the Fund held by eligible foreign subcustodians or the
subcustodian contracting with such eligible foreign subcustodians and
approved pursuant to Section 3.S.1. only to the extent such domestic
subcustodian contracting with such eligible foreign subcustodians is
responsible to the Custodian.
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T. Accounts and Records
--------------------
Custodian with the direction and as interpreted by the Fund, Fund's
accountants and/or other tax advisors will prepare and maintain complete,
accurate and current all accounts and records with respect to the
Portfolio required to be maintained by Fund and under the general rules
and regulations under the Investment Company Act of 1940 ("Rules"), as
amended, and under the Internal Revenue Code of 1986 ("Code"), as amended,
as agreed upon between the parties and will preserve said records in the
manner and for the periods prescribed in said Rules and Code, or for such
longer period as is agreed upon by the parties.
Custodian relies upon Fund to furnish, in writing, accurate and timely
information to complete Portfolio's records and perform daily calculation
of the Portfolio's net asset value, as provided in Section 3.W. below.
Custodian shall incur no liability and Fund shall indemnify and hold
harmless Custodian from and against any liability arising from any failure
of Fund to furnish such information in a timely and accurate manner, even
if Fund subsequently provides accurate but untimely information. It shall
be the responsibility of Fund to furnish Custodian with the declaration,
record and payment dates and amounts of any dividends or income and any
other special actions required concerning each of its securities when such
information is not readily available from generally accepted securities
industry services or publications.
U. 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
Portfolio's accounts and records but shall be reimbursed for all expenses
and
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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 with respect to the
Portfolio as Fund and Custodian shall agree upon from time to time.
V. 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.
W. Calculation of Net Asset Value
------------------------------
Custodian will calculate the Portfolio's net asset value, in accordance
with Fund's prospectus, once daily. Custodian will prepare and maintain a
daily evaluation of securities for which market quotations are available
by the use of outside services normally used and contracted for this
purpose; all other securities will be evaluated in accordance with Fund's
instructions. Custodian will have no responsibility for the accuracy of
the prices quoted by these outside services or for the information
supplied by Fund or upon instructions.
X. 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 by
the Fund to Custodian upon demand and shall bear the interest rate set
forth on the Fee Schedule attached hereto as Exhibit B from the date
advanced until the date
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of payment. Custodian shall have a lien on the assets of the Fund in the
amount of any outstanding overdraft.
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, 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, officer,
employee or agent.
Notwithstanding any other provision of this Agreement, Custodian, upon
receipt (and acknowledgement 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 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
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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 negligence or bad faith. 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. 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.
C. If Fund requires Custodian in any capacity to take, with respect to any
securities, any action which involves the payment of money by Custodian,
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.
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 entitled
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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 share 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 Portfolio 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 Portfolio 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, 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.
H. Except for any subcustodians or eligible foreign custodians appointed
under Section 3.S., 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.
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I. Notwithstanding anything herein to the contrary, Custodian may 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.
J. Custodian shall not be responsible or liable for the failure or delay in
performance of its obligations under this Agreement, or those of any
entity for which it is responsible hereunder, arising out of or caused,
directly or indirectly, by circumstances beyond the affected entity's
reasonable control, including, without limitation: any interruption, loss
or malfunction of any utility, transportation, computer (hardware or
software) or communication service; inability to obtain labor, material,
equipment or transportation, or a delay in mails; governmental or exchange
action, statute, ordinance, rulings, regulations or direction; war,
strike, riot, emergency, civil disturbance, terrorism, vandalism,
explosions, labor disputes, freezes, floods, fires, tornados, acts of God
or public enemy, revolutions, or insurrection; or any other cause,
contingency, circumstance or delay not subject to the control of or which
prevents or hinders the performance hereunder of Custodian or any entity
for which it is responsible hereunder.
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 under the provisions of this
Agreement including fees or expenses due to Custodian for other services
provided to the Fund by 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 ninety (90) days prior to the date upon which such
termination will take effect. Upon termination of this Agreement, Fund will
pay to Custodian
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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 capital stock of 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 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. 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 at the Depository Trust Company, or
Participants Trust Company 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 shareholders 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 Bylaws of Fund and having not less that Twenty Million Dollars
($20,000,000) 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
21
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 Xxxxxxx Xxxxxx Xxxx Xxxx, Xxxxxxxxxx, 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 000
Xxxx 00xx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000, Attention: Custody Department
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 shall be construed according to, and the rights and
liabilities of the parties hereto shall be governed by, the laws of the
State of Missouri.
B. All terms and provisions of this Agreement shall be binding upon, inure to
the benefit of and be enforceable by the parties hereto and their
respective successors and permitted assigns.
C. The representations and warranties, and the indemnifications extended
hereunder, if any, are intended to and shall continue after and survive
the expiration, termination or cancellation of this Agreement.
D. No provisions of the Agreement may be amended or modified in any manner
except by a written agreement properly authorized and executed each party
hereto.
E. The captions in the 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.
22
F. This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original but all of which together shall constitute one
and 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. This Agreement may not be assigned by either party hereto without prior
written consent of the other party.
I. It is expressly understood and agreed that all services performed
hereunder by Custodian shall be as an independent contractor and not as an
employee, agent, partner or joint venturer of Fund.
J. Except as specifically provided herein, this Agreement does not in any way
affect any other agreements entered into among the parties hereto and any
actions taken or omitted by either party hereunder shall not affect any
rights or obligations of the other party hereunder.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective duly authorized officers.
INVESTORS FIDUCIARY TRUST COMPANY
By: /s/ Illegible
------------------------------------------
Title: President
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ONE FUND, INC.
By: /s/ Illegible
------------------------------------------
Title: President
---------------------------------------
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