CUSTODY AGREEMENT
THIS AGREEMENT made the 1st day of June, 1988, by and between INVESTORS
FIDUCIARY TRUST COMPANY, a trust company chartered under the laws of the state
of Missouri, having its trust office located at 000 Xxxx 00xx Xxxxxx, Xxxxxx
Xxxx, Xxxxxxxx 00000 ("Custodian"), and XXXXXXXX MUTUAL BENEFIT PORTFOLIOS,
INC., a Maryland Corporation having its principal office and place of business
at Xxx Xxxxxxx Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Fund").
WITNESSETH:
WHEREAS, Fund desires to appoint Investors Fiduciary Trust Company as
Custodian and Recordkeeper of the securities and monies of each of the Fund
portfolios, which as of the date hereof includes the Xxxxxxxx Cash Management
Portfolio, Xxxxxxxx Capital Portfolio, Xxxxxxxx Common Stock Portfolio, Xxxxxxxx
Income Portfolio and Xxxxxxxx Fixed Income Securities Portfolio ("Portfolio" or
collectively "Portfolios"); 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 Fund which is to include:
A. Appointment as custodian of the securities and monies at any time
owned by each Portfolio of the Fund; 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 and each Portfolio 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 each Portfolio of the
Fund, and
3. Acting as liaison with independent auditors.
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, together with a certificate of an officer of the Fund
certifying the signatures of those persons authorized to sign the
written and facsimile orders from the Fund as described in Section
4. hereof ("signature card").
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 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
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 and the assets of each
Portfolio shall be 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 such Portfolio of
Fund. The Custodian is 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 a subcustodian as provided for
by Section 3.S., for which Custodian remains responsible. Custodian
shall be responsible only for the monies and securities of Fund held
by it or its nominees or subcustodians under this Agreement.
Custodian may participate directly or indirectly through a
subcustodian in the Depository Trust Company or Treasury/Federal
Reserve Book Entry System (as such entity is defined at 17 CFR
Section 270.17f-4(b)) or other depository approved in writing by the
Fund.
D. Registration of Securities
Custodian will hold stocks and other registerable portfolio
securities of Fund registered in the name of Fund or in the name of
any nominee of Custodian for whose fidelity and liability Custodian
will be fully responsible, or in street certificate form, so-called,
with or without any indication of fiduciary capacity. Unless
otherwise instructed, Custodian will register all such portfolio
securities in the name of its authorized nominee. All securities,
and the ownership thereof by a Portfolio of 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 solely as a record holder of
securities held in custody.
E. Exchange of Securities
Upon receipt of instructions as defined herein in Section 4.A.,
Custodian will exchange, or cause to be exchanged, portfolio
securities held by it for the account of any Portfolio 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, surrender convertible
securities 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 or in accordance with
industry practice, will surrender bonds, government issues and money
market instruments held by it at maturity or when advised of earlier
call for redemption. Pursuant to this paragraph, the Custodian will
inform the Fund of such corporate actions and capital changes when
it is informed of them through the publications it subscribes to.
F. Purchases of Investments of the Fund
Fund will, on each business day on which a purchase of securities
shall be made by it, deliver to Custodian instructions which shall
specify with respect to each such purchase:
1. Portfolio 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 such Portfolio making such purchase
but only insofar as monies are available therein for such purpose,
and receive the portfolio securities so purchased by or for the
account of such Portfolio 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. Custodian agrees to promptly inform Fund of any failures
by sellers to make proper deliveries of securities purchased by
Fund.
G. Sales and Deliveries of Investments of the Fund - Other than Options
and Futures
Fund will, on each business day on which a sale of investment
securities of Fund has been made, deliver to Custodian instructions
specifying with respect to each such sale:
1. The Portfolio 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 such Portfolio upon such
sale; and
9. 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 such Portfolio to the broker or other person specified in
the instructions relating to such sale, such delivery to be made
only upon receipt of payment therefor in such form as is
satisfactory to Custodian, with the understanding that Custodian may
deliver or cause to be delivered securities for payment in
accordance with the customs prevailing among dealers in securities.
Custodian agrees to promptly inform Fund of any failures of
purchasers to make proper payment for securities sold by Fund.
H. Purchases or Sales of Security Options, Options on Indices and
Security Index Futures Contracts
Fund will, on each business day on which a purchase or sale of the
following options and/or futures shall be made by it, deliver to
Custodian instructions which shall specify with respect to each such
purchase or sale:
1. The Portfolio 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;
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 Future Contracts
a. The last trading date specified in the contract and,
when available, the closing level, thereof;
b. The index level or value of the underlying security or
currency on the date the contract is entered into;
c. The multiple;
d. Any margin requirements; and
e. The need for a segregated margin account (in addition to
instructions, and if not already in the possession of
Custodian, Fund shall deliver a substantially complete
and executed custodial safekeeping account and
procedural agreement which shall be incorporated by
reference into this Custody Agreement).
f. The name and address of the futures commission merchant
through whom the sale or purchase was made, or other
applicable settlement instructions.
5. 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;
g. Whether the transaction involves a put or call;
h. Whether the option is written or purchased
i. The market on which the option is traded.
I. Securities Pledged or Loaned
If specifically allowed for in the prospectus of the Portfolio of
Fund making such pledge or loan:
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 a Portfolio of
the 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.
K. Deposit Account
Custodian will open and maintain a special purpose deposit account
or accounts in the name of Custodian for each Portfolio ("Account"
or "Accounts"), subject only to draft or order by Custodian upon
receipt of instructions. All monies received by Custodian from or
for the account of a Portfolio of 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 business day following deposit of any check or monies into
Fund's Account. 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 each
Portfolio of Fund all income and other payments which become
due and payable on or after the effective date of this
Agreement with respect to the securities deposited under this
Agreement, and credit the account of the appropriate Portfolio
of Fund with such income when received;
2. Execute ownership and other certificates and affidavits for
all federal, state and local tax purposes in connection with
the 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 in accordance with
Section 3.E. hereof; and
b. the endorsement for collection, in the name of the
applicable Portfolio of the 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.
M. Payment of Dividends and other Distributions
On the declaration of any dividend or other distribution on the
shares of Capital Stock of any 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.
Custodian will record the dividend and gain distributions declared
by each Portfolio of the Fund, will notify the transfer agent
thereof and will record the reinvestment of such dividend and gain
distributions on the books and records of the appropriate Portfolio
of the Fund.
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 Portfolio 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 (in its capacity as Custodian) shall not have any duty or
responsibility to determine that Portfolio Shares purchased by Fund
have been removed from the proper shareholder account or accounts or
that the proper number of such shares have been cancelled and
removed from the shareholder records.
O. Shares of Fund Purchased from Fund
Whenever Portfolio Shares are purchased from Fund, Fund will deposit
or cause to be deposited with Custodian the amount received for such
shares. Custodian (in its capacity as 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.
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 subcustodian to give such persons as are authorized by
Fund including Fund's independent public accountants, access to such
records or confirmation of the
contents of such records; and if demanded, to permit federal and
state regulatory agencies to examine the books, records and
securities held by subcustodian which relate to Fund. Fund will be
entitled to receive reports produced by the portfolio accounting
system, including those represented in the sample report package and
any others intended for use by the Fund unless IFTC determines that
such reports are no longer necessary or relevant to the services
provided hereunder.
S. Appointment of Subcustodians
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 Irving Trust
Company, a banking corporation under the laws of the state of
New York ("Irving") or one or more other banks or trust
companies selected by Custodian and approved in advance by the
Fund's Board of Directors. Approval in advance will include
approval of the Agreement between the Custodian and
Subcustodian. Any such subcustodian must have the
qualifications required for custodian under the Investment
Company Act of 1940, as amended. The subcustodian may
participate directly or indirectly in the Depository Trust
Company or Treasury/Federal Reserve Book Entry System (as such
entity is defined at 17 CFR Sec. 270.17f-4(b)) or other
depository approved by the Fund. Neither Custodian nor
subcustodian will be entitled to reimbursement by Fund for any
fees or expenses of any subcustodian. The appointment of a
subcustodian will not relieve Custodian of any of its
obligations hereunder.
2. Notwithstanding any other provisions of this Agreement, Fund's
foreign securities (as defined in Rule 17f-5(c)(1) under the
Investment Company Act of 1940) and Fund's cash or cash
equivalents, in amounts reasonably necessary to effect Fund's
foreign securities transactions, may be held in the custody of
one or more banks or trust companies acting as subcustodians,
according to Section 3.S.1.; and thereafter, pursuant to a
written contract or contracts as approved by
Fund's Board of Directors, must 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.
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 as
complete, accurate and current all accounts and records required to
be maintained by Fund and each Portfolio under the Internal Revenue
Code of 1986 ("Code") as amended and under the General Rules and
Regulations under the Investment Company Act of 1940 ("Rules") as
amended, and as agreed upon between the parties and will preserve
said records in the manner and for the periods prescribed in said
Code and Rules, 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 Fund's records and perform daily
calculation of the Fund'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
Fund's accounts and records but shall be reimbursed for all expenses
and employee time invested in any such review outside of routine and
normal periodic reviews. Upon receipt from Fund of the necessary
information, Custodian will supply necessary data for Fund's
completion of any necessary tax returns, questionnaires, periodic
reports to Shareholders and such other reports and information
requests as Fund and Custodian shall agree upon from time to time.
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 state statutes, regulations, rules or policies of
which it is aware which might necessitate changes in Custodian's
responsibilities or procedures.
W. Calculation of Net Asset Value
Custodian will calculate each 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
Custodian may 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 IFTC upon demand. Fund
agrees to leave on deposit in the Account such amount which
Custodian advanced under this subparagraph X for the amount of time
such monies remained unpaid to IFTC.
4. INSTRUCTIONS.
A. The term "instructions", as used herein, means written, facsimile
or oral instructions to Custodian from a designated representative
of Fund. Certified copies of resolutions of the Board of Directors
of Fund naming such designated representatives to give instructions
in the name and on behalf of Fund, and a Signature Card may be
received and accepted from time to time by Custodian as conclusive
evidence of the authority of such designated representatives 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 trustee, 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 such designated
representatives 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 such designated representative of Fund.
B. No later than the next business day immediately following each oral
instruction, Fund will send Custodian written or facsimile
confirmation of such oral instruction. At Custodian's sole
discretion, Custodian may record on tape, or otherwise, any oral
instruction whether given in person or via telephone, each such
recording identifying the parties, the date and the time of the
beginning and ending of such oral instruction.
5. LIMITATION OF LIABILITY OF CUSTODIAN.
A. Custodian shall hold harmless and indemnify Fund from and against
any loss or liability arising out of Custodian's failure to comply
with the terms of this Agreement or arising out of Custodian's
negligence, willful misconduct, or bad faith. Custodian may request
and obtain the advice and opinion of counsel for Fund, or of its own
counsel with notice to the Fund with respect to questions or matters
of law, and it shall be without liability to Fund for any action
taken or omitted by it in good faith, in conformity with such advice
or opinion. If IFTC reasonably believes that it 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 accountants and other persons believed by, it in good faith,
to be expert in matters upon which they are consulted, and Custodian
shall not be liable for any actions taken, in good faith, upon such
statements.
C. If Fund requires Custodian in any capacity to take, with respect to
any securities, any action which involves the payment of money by
it, or which in Custodian's opinion might make it or its nominee
liable for payment of monies or in any other way, Custodian, upon
notice to Fund given prior to such actions, shall be and be kept
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 to receive as conclusive
proof of any fact or matter required to be ascertained from Fund
hereunder, a certificate signed by the Fund's President, or other
officer specifically authorized for such purpose.
F. Without limiting the generality of the foregoing, Custodian shall be
under no duty or obligation to inquire into, and shall not be liable
for:
1. The validity of the issue of any securities purchased by or
for Fund, the legality of the purchase thereof or evidence of
ownership required by Fund to be received by Custodian, or the
propriety of the decision to purchase or amount paid therefor;
2. The legality of the sale of any securities by or for Fund, or
the propriety of the amount for which the same are sold;
3. The legality of the issue or sale of any shares of the Capital
Stock of Fund, or the sufficiency of the amount to be received
therefor;
4. The legality of the repurchase or redemption of any shares of
Fund Shares, or the propriety of the amount to be paid
therefor; or
5. The legality of the declaration of any dividend by Fund, or
the legality of the issue of any Fund Shares in payment of any
stock dividend.
G. Custodian shall not be liable for, or considered to be Custodian of,
any money represented by any check, draft, wire transfer, clearing
house funds, uncollected funds, or instrument for the payment of
money received by it on behalf of Fund, until Custodian actually
receives such money, provided only that it shall advise Fund
promptly if it fails to receive any such money in the ordinary
course of business, and use its best efforts and
cooperate with Fund toward the end that such money shall be
received.
H. Except for any subcustodians appointed under Section 3.S., Custodian
shall not be responsible for loss occasioned by the acts, neglects,
defaults or insolvency of any broker, bank, trust company, or any
other person with whom Custodian may deal in the absence of
negligence, misconduct, or bad faith on the part of Custodian.
I. Notwithstanding anything herein to the contrary, Custodian may, and
with respect to any foreign subcustodian appointed under Section
3.S.2. must, provide Fund for its approval, agreements with banks or
trust 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 A which may be changed from
time to time as agreed to in writing by Custodian and Fund. Custodian may
not 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 or securities
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 IFTC for other services provided to the Fund by the
Custodian. Custodian will not be entitled to reimbursement by Fund for any
loss or expenses of any subcustodian.
7. TERMINATION. The term of this Agreement shall be one year. Either party to
this Agreement may terminate the same by notice in writing, delivered or
mailed, postage prepaid, to the other party hereto and received not less
than ninety (90) days prior to the date upon which such termination will
take effect. Upon termination of this Agreement, Fund will pay to
Custodian such compensation for its reimbursable disbursements, costs and
expenses paid or incurred to such date and Fund will use its best efforts
to obtain a successor custodian. Unless the holders of a majority 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 Five
Hundred Dollars ($2,500,000) 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 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
stockholder 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 Two Million Five
Hundred Dollars ($2,500,000) 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 duties 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
Certificate of Incorporation and
Bylaws then in effect or apply to a court of competent jurisdiction for
the appointment of a successor custodian.
8. NOTICES. Notices, requests, instructions and other writings received by
Fund at Xxx Xxxxxxx Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 or at such other
address as Fund may have designated to Custodian in writing, will be
deemed to have been properly given to Fund hereunder; and notices,
requests, instructions and other writings received by Custodian at its
offices at 00 Xxxx 00xx Xxxxxx, 00xx Xxxxx, 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 New York
and shall be governed by the laws of said state.
B. All the terms and provisions of this Agreement shall be binding
upon, inure to the benefit of, and be enforceable by the respective
successor and assigns of the parties hereto.
C. No provisions of the Agreement may be amended or modified, in any
manner except by a written agreement properly authorized and
executed by both parties hereto.
D. The captions in this Agreement are included for convenience of
reference only, and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect.
E. This Agreement shall become effective at the close of business on
_____ day of ___________, 1988.
F. This Agreement may be executed simultaneously in two or more
counterparts, each of which will be deemed an original but all of
which together will constitute one 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. 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.
I. This Agreement may not be assigned by either party without prior
written consent of the other party.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective duly authorized officers.
INVESTORS FIDUCIARY TRUST COMPANY
By:
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Xxxxxxx X. Xxxxxxx, Vice President
ATTEST:
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Xxxxxx X. Xxxxxxx, Assistant Secretary
XXXXXXXX MUTUAL BENEFIT PORTFOLIOS, INC.
By:
--------------------------------
Title:
-----------------------------
ATTEST:
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Secretary
