RETIREMENT PLAN CUSTODIAL SERVICES AGREEMENT
THIS AGREEMENT is made and entered into as of the 22nd day of July, 1996,
by and between THE OMNI INVESTMENT FUND, a Massachusetts business trust
("Company"), and INVESTORS FIDUCIARY TRUST COMPANY, a Missouri trust company
("IFTC").
WHEREAS, Company desires to name a custodial trustee without discretionary
trust powers and/or a custodian (in either or both capacities a "Custodian")
for individual retirement accounts, simplified employee pension plans,
403(b)(7) custodial accounts and defined contribution retirement plans
(whether or not "qualified" under the Internal Revenue Code of 1986 ("Code")
and whether or not subject to the Employee Retirement Income Security Act of
1974 ("ERISA")) (all such accounts and plans are herein referred to
collectively as "Plans") which Company sponsors, or may hereafter sponsor, for
participants to invest solely in shares of the Company (the "Fund"); and
WHEREAS, IFTC is willing to serve as Custodian with respect to Plans
approved by IFTC, but only on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the parties agree as follows:
1. IFTC shall serve as Custodian for Plans sponsored by the Company
which IFTC approves as hereinafter provided. Company and IFTC agree to
evidence their agreement for IFTC to act as such with respect to each Plan
approved by IFTC by executing a Retirement Plan Custodial Services
Confirmation substantially in the form attached hereto as Exhibit A
("Confirmation"), and each party agrees to execute such further documents
evidencing such agreement as may be reasonably requested by either party from
time to time. As to each Plan, the "Effective Date" for purposes hereof shall
be the date specified as such in the Confirmation for such Plan. IFTC
certifies that it is qualified to act as Custodian for the Plans under the
requirements of the Code.
2. No Plan shall provide for IFTC to serve as Custodian for any
assets whatsoever other than shares of the Funds. In no event shall any Plan
provide for IFTC (i) to have or exercise any discretionary authority or
discretionary control whatsoever respecting management of the Plan or any
authority or control respecting management or disposition of any assets of the
Plan; (ii) to render or have authority or responsibility to render investment
advice with respect to any moneys or other property of any Plan; or (iii) to
have or exercise any discretionary authority or discretionary responsibility
in the administration of any Plan. No Plan shall provide for IFTC to be, and
in no event shall IFTC be deemed to be, a "fiduciary" as defined in ERISA.
3. IFTC shall serve as Custodian with respect to shares of each Fund
only during such period of time as such Fund maintains its shareholder
accounts and records on the computerized mutual fund record keeping system of
DST Systems, Inc. (the "System"). IFTC shall at all times have full access to
and use of all accounts and records relating to accounts on which IFTC is
named custodian or trustee and which are maintained on the System for purposes
of performing its duties and obligations as such custodian or trustee. In
addition, IFTC, its auditors and accountants, and to the extent required by
law its regulatory authorities, shall have full access at all times to all
such accounts and records for purposes of audit, examination, and testing and
verifying compliance with the terms of the Plans and any other applicable
governing documents, all applicable requirements of law and all applicable
accounting standards. Company hereby irrevocably authorizes and instructs DST
Systems, Inc. to provide such access to IFTC and to permit IFTC to make use of
such accounts and records upon demand. The Company irrevocably acknowledges
and agrees that IFTC may appoint agents and subcontractors with respect to
servicing such accounts. The provisions of this paragraph shall continue
after the termination of the System and other services provided by DST
Systems, Inc. to the Fund for so long as such access to and use of such
accounts and records may be reasonably required by IFTC. Further, Company
shall deliver to IFTC a Consent and Authorization from each Fund substantially
in the form attached hereto as Exhibit B. IFTC's agreement to serve as
Custodian hereunder shall not be effective as to any Fund until IFTC has
received such Consent and Authorization executed by such Fund.
4. Company shall submit to IFTC for approval all Plans for which
Company wishes for IFTC to serve as Custodian, including any and all related
application forms, adoption agreements, transfer request forms, disclosure
statements, Plan loan-related documents, beneficiary designation forms and any
other Plan-related documents ("Plan Documents"), and any and all amendments,
modifications and supplements thereto which Company may propose to use from
time to time. IFTC shall not become the Custodian of any Plan unless and
until it has approved the applicable Plan Documents in writing as evidenced by
its execution of the Confirmation referencing the same, and IFTC shall not be
deemed to have accepted and agreed to any subsequent amendment, modification
or supplement to any Plan Document unless and until it has approved the same
in writing. IFTC's review and approval of all Plan Documents and any and all
amendments, modifications and supplements thereto is solely for IFTC's
benefit, and Company shall bear full responsibility for the form and content
thereof and compliance with all applicable laws, rules and regulations, as
amended from time to time. Company shall be responsible for acquiring, at
Company's sole expense, Internal Revenue Service determination letters ("IRS
Letters") with respect to all Plans for which such determination letters are
required by the Code and shall promptly provide IFTC copies thereof.
5. Company shall be solely responsible for all costs and expenses (i)
of preparing, printing and distributing all Plan Documents and amendments,
modifications and supplements thereto, including but not limited to costs and
expenses necessary in order to comply with new or amended laws, rules and
regulations, or (ii) related to or arising from any merger, reorganization,
dissolution, termination or other organizational change involving any Plan,
any Fund or Company.
6. With respect to all existing and future Plans (if any) with
enrolled participants prior to the Effective Date of such Plans (including but
not limited to Plans associated with any investment companies hereafter
acquired):
(i) Company, at its sole expense, shall in a timely manner obtain the
removal or resignation of any prior trustee or custodian, modify and amend
Plan Documents as necessary to name IFTC as Custodian and give all notices,
obtain all approvals and take such other steps as may be required in
connection therewith under the Plan Documents and applicable laws, rules and
regulations.
(ii) Except as provided in the next paragraph, Company, at its sole
expense, shall cause to be prepared, mailed, distributed and filed all tax
reports, information returns and other documents required by the Code with
respect to Plan accounts ("Returns"), and shall cause to be withheld and paid
all taxes relating to such accounts, with respect to that portion of the
calendar year occurring prior to the Effective Date.
(iii) Provided that IFTC consents to do so in writing, IFTC shall
cause to be prepared, mailed, distributed and filed all Returns for the
calendar year in which the Effective Date occurs; provided, however, that
Company shall provide or cause to be provided to IFTC all necessary
information with respect to the portion of such year prior to the Effective
Date. IFTC shall be entitled to rely on the accuracy and completeness of such
information with no duty to investigate or verify the same, and Company shall
indemnify and hold harmless IFTC from and against, any and all losses,
liabilities, claims, demands, actions, suits and expenses (including
reasonable attorneys fees and penalties and other sums assessed by any
federal, state or local governmental agency including the Internal Revenue
Service and the United States Department of Labor ("Government Authority"))
arising out of or resulting from any error, omission, inaccuracy or other
deficiency therein. Company, at its sole expense, shall cause to be withheld
and paid all taxes relating to such accounts with respect to that portion of
the calendar year occurring prior to the Effective Date.
(iv) If and to the extent necessary to permit performance of all
duties and obligations of the Custodian, Company, at its sole expense, shall
transfer or cause to be transferred onto the System to the maximum extent
possible, and shall otherwise deliver or cause to be delivered to the transfer
agent or other agent(s) which will perform shareholder account record keeping
and servicing functions with respect to Plan accounts after the Effective
Date, all relevant records previously maintained with respect to the accounts
of participants in such Plans.
(v) IFTC shall have no responsibility for, and Company shall, except
to the extent (if any) prohibited by ERISA, indemnify and hold harmless IFTC
from and against, any and all losses, liabilities, claims, demands, actions,
suits and expenses (including reasonable attorneys fees and penalties and
other sums assessed by any Government Authority) arising out of or resulting
from (a) any acts, omissions or errors of any previous trustee or custodian,
including but not limited to its failure to file or mail any Returns, withhold
or pay any taxes, or file any schedules or other required information, (b) any
error, omission, inaccuracy or other deficiency in the Plan participant
account records or other relevant records created and maintained prior to the
Effective Date, or (c) costs and expenses of enforcing Company's obligations
and agreements hereunder.
7. As compensation for its services as Custodian as provided for in
this Agreement, the Company agrees that IFTC shall be paid the fees set forth
in Exhibit C attached hereto, as the same may be amended from time to time by
mutual agreement of the parties.
8. Subject to any longer notice periods required by the Plan
Documents, Company may remove IFTC, and IFTC may resign, as Custodian of any
or all the Plans by providing sixty (60) days written notice to the other
party. In the event of such removal or resignation, Company, at its sole
expense, shall in a timely manner appoint a successor trustee or custodian,
modify and amend Plan Documents as necessary to delete all references to IFTC,
and give all notices, obtain all approvals and take such other steps as may be
required in connection therewith under the Plan Documents and applicable laws,
rules and regulations.
9. Except to the extent (if any) prohibited by ERISA, and except to
the extent resulting from the negligence or willful misconduct of IFTC,
Company shall indemnify and hold harmless IFTC from and against any and all
losses, liabilities, claims, demands, actions, suits and expenses whatsoever
(including reasonable attorneys fees, penalties and other sums assessed by any
Government Authority, and all costs and expenses of enforcing Company's
obligations and agreements hereunder) arising out of, resulting from or in
connection with (i) the Plans and Plan Documents, (ii) the appointment of and
service by IFTC as Custodian therefor, (iii) any acts, omissions or errors of
any successor trustee or custodian (including but not limited to its failure
to file or mail any Returns, reports, schedules or other required
documentation, or withhold or pay any taxes) or of any Plan administrator, co-
trustee or other fiduciary, (iv) any instructions given by or on behalf of the
Fund, or any policies, procedures or practices adopted or followed by any
Fund, the Company or the Fund's transfer or other shareholder servicing
agent(s) (other than IFTC), with respect to shareholder account record keeping
and servicing which impacts Plan accounts, or (v) the failure of Company to
perform any of its obligations hereunder. Except to the extent (if any )
prohibited by ERISA, and except to the extent resulting from the negligence or
willful misconduct of Company, IFTC shall indemnify and hold harmless Company
from and against any and all losses, liabilities, claims, demands, actions,
suits and expenses whatsoever (including reasonable attorneys fees, penalties
and other sums assessed by any Governmental Agency, and all costs and expenses
of enforcing IFTC's obligations. and agreements hereunder) arising out of,
resulting from or in connection with the failure of IFTC to perform any of its
obligations hereunder.
10. 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, without reference to the conflicts of laws principles
thereof.
11. 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. This Agreement may not be
assigned by either party without the prior written consent of the other party.
12. The provisions for indemnification extended hereunder are
intended to and shall continue after and survive the expiration, termination
or cancellation of this Agreement. All rights and remedies of each party
hereunder shall be cumulative of all other rights and remedies which may be
available to such party.
13. No provisions of the Agreement may be amended or modified in any
manner except by a written agreement properly authorized and executed by each
party hereto.
14. 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.
15. If any provision of this Agreement shall be determined to be
invalid or unenforceable, the remaining provisions of this Agreement shall not
be affected thereby, and every provision of this Agreement shall remain in
full force and effect and shall remain enforceable to the fullest extent
permitted by applicable law.
16. Neither the execution nor performance of this Agreement shall be
deemed to create a partnership or joint venture by and between Company and
IFTC.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the day and year first above written by their respective duly authorized
officers.
INVESTORS FIDUCIARY TRUST COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Executive Vice President
THE OMNI INVESTMENT FUND
By: /s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: Treasurer
EXHIBIT A
RETIREMENT PLAN CUSTODIAL SERVICES CONFIRMATION
THIS CONFIRMS THAT THE OMNI INVESTMENT FUND ("Company") has designated, and
hereby designates, INVESTORS FIDUCIARY TRUST COMPANY, a Missouri trust company
with offices at 000 Xxxx Xxxxx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000 ("IFTC"),
as [custodial trustee without discretionary trust powers/custodian] under the
[individual retirement account/simplified employee pension/403(b)(7) custodial
account/defined contribution retirement] plan(s) ("Plan(s)") sponsored by
Company, which [is/are] created and governed by the following described Plan
documents:
IFTC has accepted, and hereby accepts, such appointment and certifies that it
is qualified to act as such [custodial trustee without discretionary trust
powers/custodian] under the applicable provisions of the Internal Revenue Code
of 1986, as amended.
This agreement is made under and subject to the terms of that certain
Retirement Plan Custodial Services Agreement by and between Company and IFTC
dated as of _____________, 199___ (the "Agreement"), which is hereby
incorporated herein by reference.
The Effective Date of this agreement for purposes of the Agreement shall be
_____________.
IN WITNESS WHEREOF, the parties have caused this instrument to be executed by
their respective duly authorized officers.
INVESTORS FIDUCIARY TRUST COMPANY
By:_______________________________
Name:_____________________________
Title:____________________________
THE OMNI INVESTMENT FUND
By:________________________________
Name:______________________________
Title:_____________________________
EXHIBIT B
CONSENT AND AUTHORIZATION
In consideration of Investors Fiduciary Trust Company ("IFTC") serving as
custodian and/or custodial trustee for the Accounts (as hereinafter defined),
the undersigned registered investment company agrees that IFTC shall at all
times have full access to and use of all accounts and records relating to
Accounts which are maintained on the computerized mutual fund shareholder
record keeping system of DST Systems, Inc. (the "System") for purposes of
performing its duties and obligations as such custodian and/or custodial
trustee. In addition, IFTC, its auditors and accountants, and to the extent
required by law its regulatory authorities, shall have full access at all
times to all such accounts and records for purposes of audit, examination, and
testing and verifying compliance with all applicable requirements of law, all
applicable accounting standards, and the terms of the retirement plan
documents, trust and custody agreements and other applicable governing
documents relating to the Accounts.
DST Systems, Inc. is hereby authorized and instructed to provide such access
to IFTC and to permit IFTC to make use of such accounts and records upon
demand. The undersigned acknowledges and agrees that DST Systems, Inc. may
serve as agent and sub-contractor of IFTC with respect to the Accounts.
The provisions of this Consent and Authorization shall continue after the
termination of the System and other services provided by DST Systems, Inc. to
the undersigned for so long as such access to and use of such accounts and
records may be reasonably required by IFTC.
The term "Accounts" shall mean all individual retirement accounts, simplified
employee pension plan accounts, 403(b)(7) custodial accounts, Xxxxx accounts,
defined contribution retirement plan accounts and other accounts of any type
for which IFTC may from time to time be named as custodian or trustee which
contain shares issued by the undersigned investment company.
This Consent and Authorization is irrevocable in every respect, shall be
binding upon the undersigned and its successors and assigns and shall inure to
the benefit of IFTC and DST Systems, Inc. and their respective successors and
assigns.
THE OMNI INVESTMENT FUND
By:__________________________
Name: _______________________
Title:_______________________
EXHIBIT C
FEE SCHEDULE
Individual Retirement Accounts: $12.00 per XXX per year.
