EXHIBIT 8
MUTUAL FUND
CUSTODY AGREEMENT
Dated , 1995
Between
UMB BANK, n.a.
and
XXXXXXXXXX FUNDS, INC.
on behalf of its
XXXXXXXXXX EMERGING GROWTH FUND,
XXXXXXXXXX XXXXXX FUND, and
XXXXXXXXXX MICROCAP FUND.
Table of Contents
SECTION PAGE
1. Appointment of Custodian 1
2. Definitions 1
(a) Securities 1
(b) Assets 1
(c) Instructions and Special Instructions 1
3. Delivery of Corporate Documents 2
4. Powers and Duties of Custodian and Domestic
Subcustodian 3
(a) Safekeeping 3
(b) Manner of Holding Securities 3
(c) Free Delivery of Assets 4
(d) Exchange of Securities 5
(e) Purchases of Assets 5
(f) Sales of Assets 5
(g) Options 6
(h) Futures Contracts 6
(i) Segregated Accounts 7
(j) Depositary Receipts 7
(k) Corporate Actions, Put Bonds, Called
Bonds, Etc. 8
(l) Interest Bearing Deposits 8
(m) Foreign Exchange Transactions Other
than as Principal 8
(n) Pledges or Loans of Securities 9
(o) Stock Dividends, Rights, Etc. 9
(p) Routine Dealings 9
(q) Overdrafts 10
(r) Collections 10
(s) Dividends, Distributions and Redemptions 10
(t) Proceeds from Shares Sold 11
(u) Proxies and Notices; Compliance with the
Shareholders Communication Act of 1985 11
(v) Books and Records 11
(w) Opinion of Fund's Independent Certified
Public Accountants 11
(x) Reports by Independent Certified
Public Accountants 12
(y) Bills and Others Disbursements 12
5. Subcustodians 12
(a) Domestic Subcustodians 12
(b) Foreign Subcustodians 12
(c) Interim Subcustodians 13
(d) Special Subcustodians 13
(e) Supervision of Subcustodians 14
(f) Termination of a Subcustodian 14
(g) Certification Regarding Foreign Subcustodians 14
6. Standard of Care 14
(a) General Standard of Care 14
(b) Actions Prohibited by Applicable Law,
Events Beyond Custodian's Control, War,
Sovereign Risk, Etc. 14
(c) Mitigation by Custodian 15
(d) Liability for Past Records 15
(e) Advice of Counsel 15
(f) Advice of the Fund and Others 15
(g) Instructions Appearing to be Genuine 16
(h) Exceptions from Liability 16
7. Liability of the Custodian for Actions of Others 16
(a) Domestic Subcustodians 16
(b) Liability for Acts and Omissions of Foreign
Subcustodians 16
(c) Interim Subcustodians, Special Subcustodians,
Securities Systems, Securities Depositories
and Clearing Agencies 17
(d) Defaults or Insolvencies of Brokers, Banks, Etc. 17
(e) Reimbursement of Expenses 17
8. Indemnification 17
(a) Indemnification by Fund 17
(b) Indemnification by Custodian 17
9. Compensation 18
10. Termination and Assignment 18
11. Notices 18
12. Miscellaneous 18
CUSTODY AGREEMENT
This agreement made as of this day of ,
1993, between UMB Bank, N.A., a national banking association with its
principal place of business located at Kansas City, Missouri (hereinafter
"Custodian"), and XxxXxxxxxx Funds, Inc., a registered investment company
located in San Francisco, CA, on behalf of each of the mutual funds listed
on the cover page hereof, together with such additional mutual funds as
shall be made a party to this Agreement by the execution of a separate
signature page hereto, each of which said mutual funds are located in San
Francisco, CA. This document evidences a separate Agreement between the
Custodian and each such mutual fund (hereinafter "Fund").
WITNESSETH:
WHEREAS, each Fund desires to appoint Custodian as its custodian for
the custody of Assets (as hereinafter defined) owned by each such Fund
which Assets are to be held in such accounts as each such Fund may
establish from time to time; and
WHEREAS, Custodian is willing to accept such appointment on the terms
and conditions hereof.
NOW, THEREFORE, 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.
Each Fund hereby constitutes and appoints the Custodian as custodian
of Assets belonging to each such Fund which have been or may be from time
to time deposited with the Custodian. Custodian accepts such appointment
as a custodian and agrees to perform the duties and responsibilities of
Custodian as set forth herein on the conditions set forth herein.
2. DEFINITIONS.
For purposes of this Agreement, the following terms shall have the
meanings so indicated:
(a) "Security" or "Securities" shall mean stocks, bonds, bills,
rights, scrip, warrants, interim certificates and all negotiable or
nonnegotiable paper commonly known as securities and other instruments or
obligations.
(b) "Assets" shall mean Securities and monies held by the
Custodian for the benefit of a Fund.
(c)(1) "Instructions", as used herein, shall mean: (i) a tested
telex, a written (including, without limitation, facsimile transmission)
request, direction, instruction or certification signed or initialed by or
on behalf of the Fund by an Authorized Person; (ii) a telephonic or other
oral communication from an Authorized Person; or (iii) a communication
effected directly between an electro-mechanical or electronic device or
system (including, without limitation, computers) on behalf of a Fund.
Instructions in the form of oral communications shall be confirmed by the
appropriate Fund by tested telex or in writing in the manner set forth in
clause (i) above, but the lack of such confirmation shall in no way affect
any action taken by the Custodian in reliance upon such oral Instructions
prior to the Custodian's receipt of such confirmation. Each Fund and the
Custodian are hereby authorized to record any and all telephonic or other
oral Instructions communicated to the Custodian.
(2) "Special Instructions", as used herein, shall mean
Instructions countersigned or confirmed in writing by the Treasurer or any
Assistant Treasurer of a Fund or any other person designated by the
Treasurer of such Fund in writing, which countersignature or confirmation
shall be included on the same instrument containing the Instructions or on
a separate instrument relating thereto.
(3) Instructions and Special Instructions shall be delivered to
the Custodian at the address and/or telephone, facsimile transmission or
telex number agreed upon from time to time by the Custodian and each Fund.
(4) Where appropriate, Instructions and Special Instructions
shall be continuing instructions.
3. DELIVERY OF CORPORATE DOCUMENTS.
Each of the parties to this Agreement represents that its execution
does not violate any of the provisions of its respective charter, articles
of incorporation, articles of association or bylaws and all required
corporate action to authorize the execution and delivery of this Agreement
has been taken.
Each Fund has delivered or will deliver to the Custodian, copies of a
Resolution of its Board of Directors or Trustees and all amendments or
supplements thereto, properly certified or authenticated, designating
certain officers or employees of each such Fund who will have continuing
authority to certify to the Custodian: (a) the names, titles, signatures
and scope of authority of all persons authorized to give Instructions or
any other notice, request, direction, instruction, certificate or
instrument on behalf of each such Fund, and (b) the names, titles and
signatures of those persons authorized to countersign or confirm Special
Instructions on behalf of each such Fund (in both cases collectively, the
"Authorized Persons" and individually, an "Authorized Person"). Such
Resolutions and certificates may be accepted and relied upon by the
Custodian as conclusive evidence of the facts set forth therein and shall
be considered to be in full force and effect until delivery to the
Custodian of a similar Resolution or certificate to the contrary. Upon
delivery of a certificate which deletes or does not include the name(s) of
a person previously authorized to give Instructions or to countersign or
confirm Special Instructions, such persons shall no longer be considered
an Authorized Person authorized to give Instructions or to countersign or
confirm Special Instructions. Unless the certificate specifically
requires that the approval of anyone else will first have been obtained,
the Custodian will be under no obligation to inquire into the right of the
person giving such Instructions or Special Instructions to do so.
Notwithstanding any of the foregoing, no Instructions or Special
Instructions received by the Custodian from a Fund will be deemed to
authorize or permit any director, trustee, officer, employee, or agent of
such Fund to withdraw any of the Assets of such Fund upon the mere receipt
of such authorization, Special Instructions or Instructions from such
director, trustee, officer, employee or agent.
4. POWERS AND DUTIES OF CUSTODIAN AND DOMESTIC SUBCUSTODIAN.
Except for Assets held by any Subcustodian appointed pursuant to
Sections 5(b), (c), or (d) of this Agreement, the Custodian shall have and
perform the powers and duties hereinafter set forth in this Section 4.
For purposes of this Section 4 all references to powers and duties of the
"Custodian" shall also refer to any Domestic Subcustodian appointed
pursuant to Section 5(a).
(a) Safekeeping.
The Custodian will keep safely the Assets of each Fund which are
delivered to it from time to time.
(b) Manner of Holding Securities.
(1) The Custodian shall at all times hold Securities of a Fund
either: (i) by physical possession of the share certificates or other
instruments representing such Securities in registered or bearer form; or
(ii) in book-entry form by a Securities System (as hereinafter defined) in
accordance with the provisions of sub-paragraph (3) below.
(2) The Custodian may hold registrable portfolio Securities
which have been delivered to it in physical form, by registering the same
in the name of a Fund or its nominee, or in the name of the Custodian or
its nominee, for whose actions such Fund and Custodian, respectively,
shall be fully responsible. Upon the receipt of Instructions, the
Custodian shall hold such Securities in street certificate form, so
called, with or without any indication of fiduciary capacity. However,
unless it receives Instructions to the contrary, the Custodian will
register all such portfolio Securities in the name of the Custodian's
authorized nominee. All such Securities shall be held in an account of
the Custodian containing only assets of the Fund or only assets held by
the Custodian as a fiduciary, provided that the records of the Custodian
shall indicate at all times the Fund or other customer for which such
Securities are held in such accounts and the respective interests therein.
(3) The Custodian may deposit and/or maintain domestic
Securities owned by a Fund in, and each Fund hereby approves use of: (a)
The Depository Trust Company; (b) The Participants Trust Company; and (c)
any book-entry system as provided in (i) Subpart O of Treasury Circular
Xx. 000, 00 XXX 306.115, (ii) Subpart B of Treasury Circular Public Debt
Series Xx. 00-00, 00 XXX 350.2, or (iii) the book-entry regulations of
federal agencies substantially in the form of 31 CFR 306.115. Upon the
receipt of Special Instructions, the Custodian may deposit and/or maintain
domestic securities owned by a Fund in any other domestic clearing agency
registered with the Securities and Exchange Commission ("SEC") under
Section 17A of the Securities Exchange Act of 1934 (or as may otherwise be
authorized by the SEC to serve in the capacity of depository or clearing
agent for the securities or other assets of investment companies) which
acts as a securities depository. Each of the foregoing shall be referred
to in this Agreement as a "Securities System", and all such Securities
Systems shall be listed on the attached Appendix A. Use of a Securities
System shall be in accordance with applicable Federal Reserve Board and
SEC rules and regulations, if any, and subject to the following
provisions:
(i) The Custodian may deposit the Securities directly or
through one or more agents or Subcustodians which are
also qualified to act as custodians for investment
companies.
(ii) The Custodian shall deposit and/or maintain the Securities
in a Securities System, provided that such Securities
are represented in an account ("Account") of the
Custodian in the Securities System that includes only
assets held by the Custodian as a fiduciary, custodian
or otherwise for customers.
(iii) The books and records of the Custodian shall at all times
identify those Securities belonging to a Fund which
are maintained in a Securities System.
(iv) The Custodian shall pay for Securities purchased for the
account of a Fund only upon (a) receipt of advice from
the Securities System that such Securities have been
transferred to the Account of the Custodian in
accordance with the rules of the Securities System,
and (b) the making of an entry on the records of the
Custodian to reflect such payment and transfer for the
account of such Fund. The Custodian shall transfer
Securities sold for the account of a Fund only upon
(a) receipt of advice from the Securities System that
payment for such Securities has been transferred to
the Account of the Custodian in accordance with the
rules of the Securities System, and (b) the making of
an entry on the records of the Custodian to reflect
such transfer and payment for the account of such
Fund. Copies of all advices from the Securities
System relating to transfers of Securities for the
account of a Fund shall identify the Fund, and shall
be maintained for such Fund by the Custodian. The
Custodian shall deliver to each Fund on the next
succeeding business day daily transaction reports
which shall include each day's transactions in the
Securities System for the account of such Fund. Such
transaction reports shall be delivered to such Fund or
any agent designated by such Fund pursuant to
Instructions, by computer or in such other manner as
such Fund and Custodian may agree.
(v) The Custodian shall, within a reasonable time provide such
Fund with reports obtained by the Custodian or any
Subcustodian with respect to a Securities System's
accounting system, internal accounting control and
procedures for safeguarding securities deposited in
the Securities System.
(vi) Upon receipt of Special Instructions, the Custodian shall
terminate the use of any Securities System on behalf
of a Fund as promptly as practicable and shall take
all actions reasonably practicable to safeguard the
securities of such Fund maintained with such
Securities System.
(c) Free Delivery of Assets.
Notwithstanding any other provision of this Agreement and except
as provided in Section 3 hereof, the Custodian, upon receipt of Special
Instructions, will undertake to make free delivery of Assets, provided
such Assets are on hand and available, in connection with a Fund's
transactions and to transfer such Assets to such broker, dealer,
Subcustodian, bank, agent, Securities System or otherwise as specified in
such Special Instructions.
(d) Exchange of Securities.
Upon receipt of Instructions, the Custodian will exchange
portfolio Securities held by it for a Fund for other securities or cash
paid in connection with any reorganization, recapitalization, merger,
consolidation, or conversion of convertible securities, and will deposit
any such Securities in accordance with the terms of any reorganization or
protective plan.
Without Instructions, the Custodian is authorized to exchange
Securities held by it in temporary form for Securities in definitive form,
to surrender Securities for transfer into a name or nominee name as
permitted in Section 4(b)(2), to effect an exchange of shares in a stock
split or when the par value of the stock is changed, to sell any
fractional shares, and, upon receiving payment therefor, to surrender
bonds or other securities held by it at maturity or call.
(e) Purchases of Assets.
(1) Securities Purchases. In accordance with Instructions, the
Custodian shall, with respect to a purchase of Securities, pay for such
securities out of monies held for the Fund's account for which the
purchase was made, but only insofar as monies are available therein for
such purpose, and receive the portfolio Securities so purchased. Such
payment will be made only upon receipt of Securities by the Custodian, a
clearing corporation of a national securities exchange of which the
Custodian is a member, or a Securities System in accordance with the
provisions of Section 4(b)(3) hereof. Notwithstanding the foregoing, upon
receipt of Instructions: (i) in connection with a repurchase agreement,
the Custodian may release funds to a Securities System prior to the
receipt of advice from the Securities System that the Securities
underlying such repurchase agreement have been transferred by book-entry
into the Account maintained with such Securities System by the Custodian,
provided that the Custodian's instructions to the Securities System
require that the Securities System may make payment of such funds to the
other party to the repurchase agreement only upon transfer by book-entry
of the securities underlying the repurchase agreement into such Account;
and (ii) in the case of Interest Bearing Deposits, currency deposits, and
other deposits, foreign exchange transactions, futures contracts or
options, pursuant to Sections 4(g), 4(h), 4(l), and 4(m) hereof, the
Custodian may make payment therefore on the basis of receipt of oral
advice of transaction to be followed by written confirmation.
(2) Other Assets Purchased. Upon receipt of Instructions and
except as otherwise provided herein, the Custodian shall pay for and
receive other Assets for the account of a Fund as provided in
Instructions.
(f) Sales of Assets.
(1) Securities Sold. In accordance with Instructions, the
Custodian will, with respect to a sale, deliver or cause to be delivered
the Securities thus designated as sold 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 the form of: (a) cash,
certified check, bank cashier's check, bank credit, or bank wire transfer;
(b) credit to the account of the Custodian with a clearing corporation of
a national securities exchange of which the Custodian is a member; or (c)
credit to the Account of the Custodian with a Securities System, in
accordance with the provisions of Section 4(b)(3) hereof. Notwithstanding
the foregoing, Securities held in physical form may be delivered and paid
for in accordance with "street delivery custom" to a broker or its
clearing agent, against delivery to the Custodian of a receipt for such
Securities, provided that the Custodian shall have taken reasonable steps
to ensure prompt collection of the payment for, or return of, such
Securities by the broker or its clearing agent, and provided further that
the Custodian shall not be responsible for the selection of or the failure
or inability to perform of such broker or its clearing agent.
(2) Other Assets Sold. Upon receipt of Instructions and except
as otherwise provided herein, the Custodian shall receive payment for and
deliver other Assets for the account of a Fund as provided in
Instructions.
(g) Options.
(1) Upon receipt of Instructions relating to the purchase of an
option or sale of a covered call option, the Custodian shall: (a) receive
and retain confirmations or other documents, if any, evidencing the
purchase or writing of the option by a Fund; (b) if the transaction
involves the sale of a covered call option, deposit and maintain in a
segregated account the Securities (either physically or by book-entry in a
Securities System) subject to the covered call option written on behalf of
such Fund; and (c) pay, release and/or transfer such Securities, cash or
other Assets in accordance with any notices or other communications
evidencing the expiration, termination or exercise of such options which
are furnished to the Custodian by the Options Clearing Corporation (the
"OCC"), the Securities or Options Exchanges on which such options were
traded, or such other organization as may be responsible for handling such
option transactions.
(2) Upon receipt of Instructions relating to the sale of a
naked option (including stock index and commodity options), the Custodian,
the appropriate Fund and the broker-dealer shall enter into an agreement
to comply with the rules of the OCC or of any registered national
securities exchange or similar organizations(s). Pursuant to that
agreement and such Fund's Instructions, the Custodian shall: (a) receive
and retain confirmations or other documents, if any, evidencing the
writing of the option; (b) deposit and maintain in a segregated account,
Securities (either physically or by book-entry in a Securities System),
cash and/or other Assets; and (c) pay, release and/or transfer such
Securities, cash or other Assets in accordance with any such agreement and
with any notices or other communications evidencing the expiration,
termination or exercise of such option which are furnished to the
Custodian by the OCC, the Securities or Options Exchanges on which such
options were traded, or such other organization as may be responsible for
handling such option transactions. Such Fund and the broker-dealer shall
be responsible for determining the quality and quantity of assets held in
any segregated account established in compliance with applicable margin
maintenance requirements and the performance of other terms of any option
contract.
(h) Futures Contracts.
Upon receipt of Instructions, the Custodian shall enter into a
futures margin procedural agreement among the appropriate Fund, the
Custodian and the designated futures commission merchant (a "Procedural
Agreement"). Under the Procedural Agreement the Custodian shall: (a)
receive and retain confirmations, if any, evidencing the purchase or sale
of a futures contract or an option on a futures contract by such Fund; (b)
deposit and maintain in a segregated account cash, Securities and/or other
Assets designated as initial, maintenance or variation "margin" deposits
intended to secure such Fund's performance of its obligations under any
futures contracts purchased or sold, or any options on futures contracts
written by such Fund, in accordance with the provisions of any Procedural
Agreement designed to comply with the provisions of the Commodity Futures
Trading Commission and/or any commodity exchange or contract market (such
as the Chicago Board of Trade), or any similar organization(s), regarding
such margin deposits; and (c) release Assets from and/or transfer Assets
into such margin accounts only in accordance with any such Procedural
Agreements. Such Fund and such futures commission merchant shall be
responsible for determining the type and amount of Assets held in the
segregated account or paid to the broker-dealer in compliance with
applicable margin maintenance requirements and the performance of any
futures contract or option on a futures contract in accordance with its
terms.
(i) Segregated Accounts.
Upon receipt of Instructions, the Custodian shall establish and
maintain on its books a segregated account or accounts for and on behalf
of a Fund, into which account or accounts may be transferred Assets of
such Fund, including Securities maintained by the Custodian in a
Securities System pursuant to Paragraph (b)(3) of this Section 4, said
account or accounts to be maintained (i) for the purposes set forth in
Sections 4(g), 4(h) and 4(n) and (ii) for the purpose of compliance by
such Fund with the procedures required by the SEC Investment Company Act
Release Number 10666 or any subsequent release or releases relating to the
maintenance of segregated accounts by registered investment companies, or
(iii) for such other purposes as may be set forth, from time to time, in
Special Instructions. The Custodian shall not be responsible for the
determination of the type or amount of Assets to be held in any segregated
account referred to in this paragraph.
(j) Depositary Receipts.
Upon receipt of Instructions, the Custodian shall surrender or cause
to be surrendered Securities to the depositary used for such Securities by
an issuer of American Depositary Receipts or International Depositary
Receipts (hereinafter referred to, collectively, as "ADRs"), against a
written receipt therefor adequately describing such Securities and written
evidence satisfactory to the organization surrendering the same that the
depositary has acknowledged receipt of instructions to issue ADRs with
respect to such Securities in the name of the Custodian or a nominee of
the Custodian, for delivery in accordance with such instructions.
Upon receipt of Instructions, the Custodian shall surrender or cause
to be surrendered ADRs to the issuer thereof, against a written receipt
therefor adequately describing the ADRs surrendered and written evidence
satisfactory to the organization surrendering the same that the issuer of
the ADRs has acknowledged receipt of instructions to cause its depository
to deliver the Securities underlying such ADRs in accordance with such
instructions.
(k) Corporate Actions, Put Bonds, Called Bonds, Etc.
Upon receipt of Instructions, the Custodian shall: (a) deliver
warrants, puts, calls, rights or similar securities to the issuer or
trustee thereof (or to the agent of such issuer or trustee) for the
purpose of exercise or sale, provided that the new securities, cash or
other Assets, if any, acquired as a result of such actions are to be
delivered to the Custodian; and (b) deposit securities upon invitations
for tenders thereof, provided that the consideration for such securities
is to be paid or delivered to the Custodian, or the tendered securities
are to be returned to the Custodian.
Notwithstanding any provision of this Agreement to the contrary, the
Custodian shall take all necessary action, unless otherwise directed to
the contrary in Instructions, to comply with the terms of all mandatory or
compulsory exchanges, calls, tenders, redemptions, or similar rights of
security ownership, and shall promptly notify the appropriate Fund of such
action in writing by facsimile transmission or in such other manner as
such Fund and Custodian may agree in writing.
(l) Interest Bearing Deposits.
Upon receipt of Instructions directing the Custodian to purchase
interest bearing fixed term and call deposits (hereinafter referred to,
collectively, as "Interest Bearing Deposits") for the account of a Fund,
the Custodian shall purchase such Interest Bearing Deposits in the name of
such Fund with such banks or trust companies, including the Custodian, any
Subcustodian or any subsidiary or affiliate of the Custodian (hereinafter
referred to as "Banking Institutions"), and in such amounts as such Fund
may direct pursuant to Instructions. Such Interest Bearing Deposits may
be denominated in U.S. Dollars or other currencies, as such Fund may
determine and direct pursuant to Instructions. The responsibilities of
the Custodian to a Fund for Interest Bearing Deposits issued by the
Custodian shall be that of a U.S. bank for a similar deposit. With
respect to Interest Bearing Deposits other than those issued by the
Custodian, (a) the Custodian shall be responsible for the collection of
income and the transmission of cash to and from such accounts; and (b) the
Custodian shall have no duty with respect to the selection of the Banking
Institution or for the failure of such Banking Institution to pay upon
demand.
(m) Foreign Exchange Transactions Other than as Principal.
(1) Upon receipt of Instructions, the Custodian shall
settle foreign exchange contracts or options to purchase and sell foreign
currencies for spot and future delivery on behalf of and for the account
of a Fund with such currency brokers or Banking Institutions as such Fund
may determine and direct pursuant to Instructions. Such Fund accepts full
responsibility for its use of third party foreign exchange brokers and for
execution of said foreign exchange contracts and understands that such
Fund shall be responsible for any and all costs and interest charges which
may be incurred as a result of the failure or delay of its third party
broker to deliver foreign exchange. Notwithstanding the foregoing, the
Custodian shall be responsible for the transmission of cash and
instructions to and from the currency broker or Banking Institution with
which the contract or option is made, and the safekeeping of all
certificates and other documents and agreements evidencing or relating to
such foreign exchange transaction. The Custodian shall have no duty with
respect to the selection of the currency brokers or Banking Institutions
with which such Fund deals or, so long as the Custodian acts in accordance
with Instructions, for the failure of such brokers or Banking Institutions
to comply with the terms of any contract or option.
(2) Notwithstanding anything to the contrary contained
herein, upon receipt of Instructions the Custodian may, in connection with
a foreign exchange contract, make free outgoing payments of cash in the
form of U.S. Dollars or foreign currency prior to receipt of confirmation
of such foreign exchange contract or confirmation that the countervalue
currency completing such contract has been delivered or received.
(n) Pledges or Loans of Securities.
(1) Upon receipt of Instructions from a Fund, the
Custodian will release or cause to be released Securities held in custody
to the pledgees designated in such Instructions by way of pledge or
hypothecation to secure loans incurred by such Fund with various lenders
including but not limited to UMB Bank, N.A.; provided, however, that the
Securities shall be released only upon payment to the Custodian of the
monies borrowed, except that in cases where additional collateral is
required to secure existing borrowings, further Securities may be released
or delivered, or caused to be released or delivered for that purpose upon
receipt of Instructions. Upon receipt of Instructions, the Custodian will
pay, but only from funds available for such purpose, any such loan upon
re-delivery to it of the Securities pledged or hypothecated therefor and
upon surrender of the note or notes evidencing such loan. In lieu of
delivering collateral to a pledgee, the Custodian, on the receipt of
Instructions, shall transfer the pledged Securities to a segregated
account for the benefit of the pledgee.
(2) Upon receipt of Instructions, the Custodian will
release Securities held in custody to the borrower designated in such
Instructions and may, except as otherwise provided below, deliver such
Securities prior to the receipt of collateral, if any, for such borrowing,
provided that, in case of loans of Securities held by a Securities System
that are secured by cash collateral, the Custodian's instructions to the
Securities System shall require that the Securities System deliver the
Securities of the appropriate Fund to the borrower thereof only upon
receipt of the collateral for such borrowing. The Custodian shall retain
on such Fund's behalf the right to any dividends, interest or distribution
on such loaned Securities. Upon receipt of Instructions and the loaned
Securities, the Custodian will release the collateral to the borrower.
(o) Stock Dividends, Rights, Etc.
The Custodian shall receive and collect all stock dividends,
rights, and other items of like nature and, upon receipt of Instructions,
take action with respect to the same as directed in such Instructions.
(p) Routine Dealings.
The Custodian will, in general, attend to all routine and
mechanical matters in accordance with industry standards in connection
with the sale, exchange, substitution, purchase, transfer, or other
dealings with Securities or other property of each Fund except as may be
otherwise provided in this Agreement or directed from time to time by
Instructions from a Fund. The Custodian may also make payments to itself
or others from the Assets for reasonable and customary disbursements and
out-of-pocket expenses incidental to handling Securities or other similar
items relating to its duties under this Agreement, provided that all such
payments shall be accounted for to the appropriate Fund.
(q) Overdrafts.
If the Custodian or any Subcustodian, depository, or clearing
agency acting under agreement with the Custodian or any of their
respective assigns shall, in its sole discretion, advance funds to or for
the benefit of the account of any Fund which results in an overdraft
because the monies held by the Custodian or any Subcustodian, depository
or clearing agency, or any of their respective assigns, on behalf of that
Fund are insufficient to pay the total amount payable upon a purchase of
securities as specified in Instructions from the Fund, or for any other
reason, the amount of any such overdraft shall be payable by the Fund(s)
to the Custodian upon demand, and shall bear interest from the date
advanced until the date of payment at a rate agreed upon from time to
time. The Custodian is hereby granted an assignment of and a security
interest in all assets of the Fund(s) in which the overdraft(s) occurred,
whether or not held by the Custodian or any Subcustodian, depository or
clearing agency, for payment of any outstanding overdrafts which may occur
from time to time. The Custodian is also hereby granted a right of
set-off in any deposits, securities and security positions of the Fund(s)
in which overdrafts occur which are held by or for the account of the
Custodian.
(r) Collections.
The Custodian shall (a) collect amounts due and payable to each
such Fund with respect to portfolio securities and other Assets; (b)
promptly credit to the account of each such Fund all income and other
payments relating to portfolio securities and other Assets held by the
Custodian hereunder upon Custodian's receipt of such income or payments or
as otherwise agreed in writing by the Custodian and each such Fund; (c)
promptly endorse and deliver any instruments required to effect such
collection; and (d) promptly execute ownership and other certificates and
affidavits for all federal, state, local and foreign tax purposes in
connection with receipt of income or other payments with respect to
portfolio securities and other Assets, or in connection with the transfer
of such securities or other Assets; provided, however, that with respect
to portfolio securities registered in so-called street name, or physical
securities with variable interest rates, the Custodian shall use its best
efforts to collect amounts due and payable to each such Fund. The
Custodian shall promptly notify a Fund in writing by facsimile
transmission or in such other manner as such Fund and Custodian may agree
in writing if any amount payable with respect to portfolio securities or
other Assets is not received by the Custodian when due. The Custodian
shall not be responsible for the collection of amounts due and payable
with respect to portfolio securities or other Assets that are in default.
(s) Dividends, Distributions and Redemptions.
To enable each Fund to pay dividends or other distributions to
shareholders of each such Fund and to make payment to shareholders who
have requested repurchase or redemption of their shares of each such Fund
(collectively, the "Shares"), the Custodian shall promptly release cash or
securities. In the case of cash, the Custodian shall, upon the receipt of
Instructions, transfer such funds by check or wire transfer to any account
at any bank or trust company designated by such Fund in such Instructions.
In the case of securities, the Custodian shall, upon the receipt of
Special Instructions, make such transfer to any entity or account
designated by such Fund in such Special Instructions.
(t) Proceeds from Shares Sold.
The Custodian shall receive funds representing cash payments
received for Shares issued or sold from time to time by each Fund, and
shall promptly credit such funds to the account of the appropriate Fund.
The Custodian shall promptly notify the appropriate Fund of Custodian's
receipt of cash in payment for Shares issued by such Fund by facsimile
transmission or in such other manner as such Fund and the Custodian shall
agree. Upon receipt of Instructions, the Custodian shall: (a) deliver all
federal funds received by the Custodian in payment for Shares as may be
set forth in such Instructions and at a time agreed upon between the
Custodian and such Fund; and (b) make federal funds available to a Fund as
of specified times agreed upon from time to time by such Fund and the
Custodian, in the amount of checks received in payment for Shares which
are deposited to the accounts of such Fund.
(u) Proxies and Notices; Compliance with the Shareholders
Communication Act of 1985.
The Custodian shall deliver or cause to be delivered to the
appropriate Fund all forms of proxies, all notices of meetings, and any
other notices or announcements affecting or relating to securities owned
by such Fund that are received by the Custodian, any Subcustodian, or any
nominee of either of them, and, upon receipt of Instructions, the
Custodian shall execute and deliver, or cause such Subcustodian or nominee
to execute and deliver, such proxies or other authorizations as may be
required. Except as directed pursuant to Instructions, neither the
Custodian nor any Subcustodian or nominee shall vote upon any such
securities, or execute any proxy to vote thereon, or give any consent or
take any other action with respect thereto.
The Custodian will not release the identity of a 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 the Fund unless such Fund directs
the Custodian otherwise in writing.
(v) Books and Records.
The Custodian shall maintain such records relating to its
activities under this Agreement as are required to be maintained by Rule
31a-1 under the Investment Company Act of 1940 ("xxx 0000 Xxx") and to
preserve them for the periods prescribed in Rule 31a-2 under the 1940 Act.
These records shall be open for inspection by duly authorized officers,
employees or agents (including independent public accountants) of the
appropriate Fund during normal business hours of the Custodian.
The Custodian shall provide accountings relating to its
activities under this Agreement as shall be agreed upon by each Fund and
the Custodian.
(w) Opinion of Fund's Independent Certified Public Accountants.
The Custodian shall take all reasonable action as each Fund may
request to obtain from year to year favorable opinions from each such
Fund's independent certified public accountants with respect to the
Custodian's activities hereunder and in connection with the preparation of
each such Fund's periodic reports to the SEC and with respect to any other
requirements of the SEC.
(x) Reports by Independent Certified Public Accountants.
The Custodian shall deliver to a Fund a written report prepared
by the Custodian's independent certified public accountants with respect
to the services provided by the Custodian under this Agreement, including,
without limitation, the Custodian's accounting system, internal accounting
control and procedures for safeguarding cash, securities and other Assets,
including cash, Securities and other Assets deposited and/or maintained in
a Securities System or with a Subcustodian. Such report shall be of
sufficient scope and in sufficient detail as may reasonably be required by
such Fund and as may reasonably be obtained by the Custodian.
(y) Bills and Other Disbursements.
Upon receipt of Instructions, the Custodian shall pay, or cause
to be paid, all bills, statements, or other obligations of a Fund.
5. SUBCUSTODIANS.
From time to time, in accordance with the relevant provisions of
this Agreement, the Custodian may appoint one or more Domestic
Subcustodians, Foreign Subcustodians, Special Subcustodians, or Interim
Subcustodians (as each are hereinafter defined) to act on behalf of a
Fund. A Domestic Subcustodian, in accordance with the provisions of this
Agreement, may also appoint a Foreign Subcustodian, Special Subcustodian,
or Interim Subcustodian to act on behalf of a Fund. For purposes of this
Agreement, all Domestic Subcustodians, Foreign Subcustodians, Special
Subcustodians and Interim Subcustodians shall be referred to collectively
as "Subcustodians".
(a) Domestic Subcustodians.
The Custodian may, at any time and from time to time, appoint
any bank as defined in Section 2(a)(5) of the 1940 Act or any trust
company or other entity, any of which meet the requirements of a custodian
under Section 17(f) of the 1940 Act and the rules and regulations
thereunder, to act for the Custodian on behalf of a Fund as a subcustodian
for purposes of holding Assets of such Fund and performing other functions
of the Custodian within the United States (a "Domestic Subcustodian");
provided, that the Custodian shall notify such Fund in writing of the
identity and qualifications of any proposed Domestic Subcustodian at least
sixty (60) days prior to the desired appointment of such Domestic
Subcustodian, and provided further that such Fund will notify the
Custodian in writing of approval or disapproval of the appointment of the
proposed Domestic Subcustodian; and that the Custodian's appointment of
any such Domestic Subcustodian shall not be effective without such prior
written approval of such Fund. Each such duly approved Domestic
Subcustodian shall be listed on Appendix "A" attached hereto, as it may be
amended, from time to time.
(b) Foreign Subcustodians.
The Custodian may at any time appoint, or cause a Domestic
Subcustodian to appoint, any bank, trust company or other entity meeting
the requirements of an "eligible foreign custodian" under Section 17(f) of
the 1940 Act and the rules and regulations thereunder to act for the
Custodian on behalf of a Fund as a subcustodian or sub-subcustodian (if
appointed by a Domestic Subcustodian) for purposes of holding Assets of
such Fund and performing other functions of the Custodian in countries
other than the United States of America (hereinafter referred to as a
"Foreign Subcustodian" in the context of either a subcustodian or a
sub-subcustodian); provided, that, prior to the appointment or approval of
any Foreign Subcustodian the Custodian shall, or shall cause the Domestic
Subcustodian to, notify such Fund, in writing, of the identity and
qualifications of the proposed Foreign Subcustodian and make a copy of the
proposed subcustodian agreement available to such Fund at least sixty (60)
days prior to the desired appointment; and provided further that the
Custodian shall have obtained written confirmation from such Fund of the
approval of the Board of Directors or other governing body of such Fund
(which approval may be withheld in the sole discretion of such Board of
Directors or other governing body or entity) with respect to (i) the
identity and qualifications of any proposed Foreign Subcustodian, and (ii)
the country or countries in which, and the securities depositories or
clearing agencies (hereinafter "Securities Depositories and Clearing
Agencies"), if any, through which, any proposed Foreign Subcustodian is
authorized to hold Securities and other Assets of such Fund, and (iii) the
form and terms of the subcustodian agreement to be entered into with such
proposed Foreign Subcustodian. Each such duly approved Foreign
Subcustodian and the countries where and the Securities Depositories and
Clearing Agencies through which they may hold Securities and other Assets
of the Fund shall be listed on Appendix "A" attached hereto, as it may be
amended, from time to time. Each Fund shall be responsible for informing
the Custodian sufficiently in advance of a proposed investment which is to
be held in a country in which no Foreign Subcustodian is authorized to
act, in order that there shall be sufficient time for the Custodian, or
any Domestic Subcustodian, to effect the appropriate arrangements with a
proposed Foreign Subcustodian, including obtaining approval as provided in
this Section 5(b). In connection with the appointment of any Foreign
Subcustodian, the Custodian shall, or shall cause the Domestic
Subcustodian to, enter into a subcustodian agreement with the Foreign
Subcustodian in form and substance approved by the appropriate Fund. The
Custodian shall not consent to the amendment of, and shall cause any
Domestic Subcustodian not to consent to the amendment of, any agreement
entered into with a Foreign Subcustodian, which materially affects a
Fund's rights under such agreement, except upon prior written approval of
the Fund pursuant to Special Instructions.
(c) Interim Subcustodians.
Notwithstanding the foregoing, in the event that a Fund shall
invest in an Asset to be held in a country in which no Foreign
Subcustodian is authorized to act, the Custodian shall promptly notify
such Fund in writing by facsimile transmission or in such other manner as
such Fund and Custodian shall agree in writing of the unavailability of an
approved Foreign Subcustodian in such country; and upon the receipt of
Special Instructions from such Fund, the Custodian shall, or shall cause
its Domestic Subcustodian to, appoint or approve an entity (referred to
herein as an "Interim Subcustodian") designated in such Special
Instructions to hold such Security or other Asset.
(d) Special Subcustodians.
Upon receipt of Special Instructions, the Custodian shall, on
behalf of a Fund, appoint one or more banks, trust companies or other
entities designated in such Special Instructions to act for the Custodian
on behalf of such Fund as a subcustodian for purposes of: (i) effecting
third-party repurchase transactions with banks, brokers, dealers or other
entities through the use of a common custodian or subcustodian; (ii)
providing depository and clearing agency services with respect to certain
variable rate demand note securities, (iii) providing depository and
clearing agency services with respect to dollar denominated securities,
and (iv) effecting any other transactions designated by such Fund in such
Special Instructions. Each such designated subcustodian (hereinafter
referred to as a "Special Subcustodian") shall be listed on Appendix "A"
attached hereto, as it may be amended from time to time. In connection
with the appointment of any Special Subcustodian, the Custodian shall
enter into a subcustodian agreement with the Special Subcustodian in form
and substance approved by such Fund in Special Instructions. The
Custodian shall not amend any subcustodian agreement entered into with a
Special Subcustodian, or waive any rights under such agreement, except
upon prior approval pursuant to Special Instructions.
(e) Supervision of Subcustodians.
The Custodian shall (i) cause each Domestic Subcustodian and
Foreign Subcustodian to, and (ii) use its best efforts to cause each
Interim Subcustodian and Special Subcustodian to, perform all of its
obligations in accordance with the terms and conditions of the
subcustodian agreement under which such Subcustodian serves.
(f) Termination of a Subcustodian.
The Custodian shall, upon receipt of Special Instructions,
terminate any Subcustodian with respect to a Fund, in accordance with the
termination provisions under the applicable subcustodian agreement.
(g) Certification Regarding Foreign Subcustodians.
Upon request of a Fund, the Custodian shall deliver to such Fund
a certificate stating: (i) the identity of each Foreign Subcustodian then
acting on behalf of the Custodian; (ii) the countries in which and the
Securities Depositories and Clearing Agents through which each such
Foreign Subcustodian is then holding cash, Securities and other Assets of
the Fund; and (iii) such other information as may be requested by such
Fund to ensure compliance with rules and regulations under the 1940 Act.
6. STANDARD OF CARE.
(a) General Standard of Care.
The Custodian shall exercise reasonable care and diligence in
carrying out all of its duties and obligations under this Agreement, and
shall be liable to a Fund for all losses, damages and reasonable costs and
expenses (including but not limited to reasonable attorneys fees) suffered
or incurred by such Fund resulting from the failure of the Custodian to
exercise such reasonable care and diligence; provided, however, in no
event shall the Custodian be liable for consequential damages.
(b) Actions Prohibited by Applicable Law, Events Beyond
Custodian's Control, Sovereign Risk, Etc.
In no event shall the Custodian or any Domestic Subcustodian
incur liability hereunder if the Custodian or any Subcustodian or
Securities System, or any subcustodian, Securities System, Securities
Depository or Clearing Agency utilized by any such Subcustodian, or any
nominee of the Custodian or any Subcustodian (individually, a "Person") is
prevented, forbidden or delayed from performing, or omits to perform, any
act or thing which this Agreement provides shall be performed or omitted
to be performed, by reason of: (i) any provision of any present or future
law or regulation or order of the United States of America, or any state
thereof, or of any foreign country, or political subdivision thereof or of
any court of competent jurisdiction (and neither the Custodian nor any
other Person shall be obligated to take any action contrary thereto); or
(ii) any event beyond the control of Custodian or other Person such as
war, riots, strikes, lockouts, labor disputes, equipment or transmission
failures or natural disasters; or (iii) any "Sovereign Risk." A
"Sovereign Risk" shall mean nationalization, expropriation, devaluation,
revaluation, confiscation, seizure, cancellation, destruction or similar
action by any governmental authority, de facto or de jure; or enactment,
promulgation, imposition or enforcement by any such governmental authority
of currency restrictions, exchange controls, taxes, levies or other
charges affecting a Fund's Assets; or acts of war, terrorism, insurrection
or revolution; or any other act or event beyond the Custodian's or such
other Person's control.
(c) Mitigation by Custodian.
Upon the occurrence of any event which causes or may cause any
loss, damage or expense to a Fund, (i) the Custodian shall, (ii) the
Custodian shall cause any applicable Domestic Subcustodian to, and (iii)
the Custodian shall use its best efforts to cause any applicable Foreign
Subcustodian, Special Subcustodian or Interim Subcustodian to, use all
commercially reasonable efforts and take all reasonable steps under the
circumstances to mitigate the effects of such event and to avoid
continuing harm to such Fund.
(d) Liability for Past Records.
Neither the Custodian nor any Domestic Subcustodian shall have
any liability in respect of any loss, damage or expense suffered by a
Fund, insofar as such loss, damage or expense arises from the performance
of the Custodian or any Domestic Subcustodian in reliance upon records
that were maintained for such Fund by entities other than the Custodian or
any Domestic Subcustodian prior to the Custodian's employment hereunder.
(e) Advice of Counsel.
The Custodian and all Domestic Subcustodians shall be entitled
to receive and act upon advice of counsel on all matters. The Custodian
and all Domestic Subcustodians shall be without liability for any action
reasonably taken or omitted in good faith pursuant to the advice of (i)
counsel for the appropriate Fund, or (ii) at the expense of the Custodian
or any Domestic Subcustodian, such other counsel as such Fund and the
Custodian or any Domestic Subcustodian may agree upon.
(f) Advice of the Fund and Others.
The Custodian and any Domestic Subcustodian may rely upon the
advice of a Fund and upon statements of the Fund's accountants and other
persons reasonably believed by it in good faith to be expert in matters
upon which they are consulted, and neither the Custodian nor any Domestic
Subcustodian shall be liable for any actions taken, in good faith, upon
such statements.
(g) Instructions Appearing to be Genuine.
The Custodian and all Domestic Subcustodians shall be fully
protected and indemnified in acting as a custodian hereunder upon any
Resolutions of the Board of Directors or Trustees, Instructions, Special
Instructions, advice, notice, request, consent, certificate, 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 a Fund hereunder a certificate signed by any officer
of such Fund authorized to countersign or confirm Special Instructions.
(h) Exceptions from Liability.
Without limiting the generality of any other provisions hereof,
neither the Custodian nor any Domestic Subcustodian shall be under any
duty or obligation to inquire into,nor be liable for:
(i) the validity of the issue of any Securities purchased
by or for a Fund, the legality of the purchase
thereof or evidence of ownership required to be
received by such Fund, or the propriety of the
decision to purchase or amount paid therefor;
(ii) the legality of the sale of any securities by or for
a Fund, or the propriety of the amount for which
the same were sold; or
(iii) any other expenditures, encumbrances of securities,
borrowings or similar actions with respect to a
Fund's Assets;
and may, until notified to the contrary, presume that all Instructions or
Special Instructions received by it are not in conflict with or in any way
contrary to any provisions of a Fund's Declaration of Trust, Partnership
Agreement, Articles of Incorporation or By-Laws or votes or proceedings of
the shareholders, trustees, partners or directors of such Fund, or such
Fund's currently effective Registration Statement on file with the
Securities and Exchange Commission.
7. LIABILITY OF THE CUSTODIAN FOR ACTIONS OF OTHERS.
(a) Domestic Subcustodians and Securities Systems.
The Custodian shall be liable for the acts or omissions of any
Domestic Subcustodian or Securities System to the same extent as if such
actions or omissions were performed by the Custodian itself.
(b) Liability for Acts and Omissions of Foreign Subcustodians.
The Custodian shall be liable to a Fund for any loss or damage
to such Fund caused by or resulting from the acts or omissions of any
Foreign Subcustodian to the extent that, under the terms set forth in the
subcustodian agreement between the Custodian or a Domestic Subcustodian
and such Foreign Subcustodian, the Foreign Subcustodian has failed to
perform in accordance with the standard of conduct imposed under such
subcustodian agreement as determined in accordance with the law which is
adjudicated to govern such agreements and in accordance with any
determination of any court as to the duties of said Foreign Subcustodian
pursuant to said agreement.
(c) Interim Subcustodians, Special Subcustodians, Securities
Depositories and Clearing Agencies.
The Custodian shall not be liable to a Fund for any loss, damage
or expense suffered or incurred by such Fund resulting from the actions or
omissions of an Interim Subcustodian, Special Subcustodians, or Securities
Depository and Clearing Agency unless such loss, damage or expense is
caused by, or results from, the negligence, willful misconduct or bad
faith of the Custodian.
(d) Defaults or Insolvencies of Brokers, Banks, Etc.
The Custodian shall not be responsible for any loss occasioned
by the acts, neglects, defaults or insolvency of any broker, bank, trust
company or any other person with whom the Custodian may deal (other than
any of such entities acting as a Subcustodian, Securities System or
Securities Depository and Clearing Agency, for whose actions the liability
of the Custodian is set out elsewhere in this Agreement) in the absence of
its own negligence, willful misconduct or bad faith.
(e) Reimbursement of Expenses.
Each Fund agrees to reimburse the Custodian for all reasonable
out-of-pocket expenses incurred by the Custodian in connection with the
fulfillment of its obligations under paragraph (c) of Section 6; provided
however, that such reimbursement shall not apply to expenses occasioned by
or resulting from the negligence, willful misconduct or bad faith of the
Custodian.
8. INDEMNIFICATION.
(a) Indemnification by Fund.
Subject to the limitations set forth in this Agreement, each
Fund agrees to indemnify and hold harmless the Custodian and its nominees
from all loss, damage and expense (including reasonable attorneys' fees)
suffered or incurred by the Custodian or its nominee caused by or arising
from actions taken by the Custodian, its employees or agents in the
performance of its duties and obligations under this Agreement, including,
but not limited to, any indemnification obligations undertaken by the
Custodian under any relevant Subcustodian Agreement; provided, however,
that such indemnity shall not apply to the extent the Custodian is liable
under Sections 6 or 7 hereof. In addition, each Fund agrees to indemnify
any Person against liability incurred by reason of taxes assessed to such
Person resulting from the fact that securities and other property of
indemnifying Fund are registered in the name of such Person in accordance
with the provisions of this Agreement; provided, however, that in no event
shall such indemnification be applicable to income, franchise or similar
taxes which may be imposed or assessed against any Person.
(b) Indemnification by Custodian.
Subject to the limitations set forth in this Agreement and in
addition to the obligations provided in Sections 6 and 7, the Custodian
agrees to indemnify and hold harmless each Fund and its nominees from all
loss, damage and expense (including reasonable attorneys' fees) suffered
or incurred by each such Fund or its nominee caused by or arising from the
negligence, willful misconduct or bad faith of the Custodian or its
nominee.
9. COMPENSATION.
Each Fund will pay to the Custodian such compensation as is
agreed to in writing by the Custodian and each such Fund from time to
time.
10. TERMINATION AND ASSIGNMENT.
Any Fund or the Custodian may terminate this Agreement by notice
in writing, delivered or mailed, postage prepaid (certified mail, return
receipt requested) to the other not less than 90 days prior to the date
upon which such termination shall take effect. Upon termination of this
Agreement, the appropriate Fund shall pay to the Custodian such fees as
may be due the Custodian hereunder as well as its reimbursable
disbursements, costs and expenses paid or incurred to such date. Upon
termination of this Agreement, the Custodian shall deliver, at the
terminating party's expense, all Assets held by it hereunder to the
appropriate Fund or as otherwise designated by such Fund. Upon such
delivery, the Custodian shall have no further obligations or liabilities
under this Agreement except as to the final resolution of matters relating
to activity occurring prior to the last to occur of the effective date of
termination or the date upon which the Custodian has completed the
delivery of all Assets held by it hereunder to the appropriate Fund or as
otherwise designated by such Fund.
This Agreement may not be assigned by the Custodian or any Fund
without the respective consent of the other, duly authorized by a
resolution by its Board of Directors or Trustees.
11. NOTICES.
As to each Fund, notices, requests, instructions and other
writings delivered to XxxXxxxxxx Funds, Inc. or to a particular Fund at
______________________________, postage prepaid, or to such other address
as any such Fund may have designated to the Custodian in writing, shall be
deemed to have been properly delivered or given to a Fund.
Notices, requests, instructions and other writings delivered to
the Securities Administration Department of the Custodian at its office at
000 Xxxxx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx, or mailed postage prepaid, to the
Custodian's Securities Xxxxxxxxxxxxxx Xxxxxxxxxx, Xxxx Xxxxxx Xxx 000,
Xxxxxx Xxxx, Xxxxxxxx 00000, or to such other addresses as the Custodian
may have designated to each such Fund in writing, shall be deemed to have
been properly delivered or given to the Custodian hereunder; provided,
however, that procedures for the delivery of Instructions and Special
Instructions shall be governed by Section 2(e) hereof.
12. MISCELLANEOUS.
(a) This Agreement is executed and delivered in the State of
Missouri and shall be governed by the laws of such state.
(b) All of the terms and provisions of this Agreement shall be
binding upon, and inure to the benefit of, and be enforceable by the
respective successors and assigns of the parties hereto.
(c) As to each Fund, no provisions of this Agreement may be
amended or modified, in any manner except in writing, properly executed by
both the Custodian and the Fund; provided, however, Appendix "A" may be
amended from time to time as Domestic Subcustodians, Foreign
Subcustodians, Special Subcustodians, and Securities Depositories and
Clearing Agencies are approved or terminated according to the terms of
this Agreement; and provided further, however, that additional Funds may
be made parties to this Agreement by the execution of a separate signature
page.
(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 be effective as of the date of
execution hereof.
(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) The following terms are defined terms within the meaning of
this Agreement, and the definitions thereof are found in the following
sections of the Agreement:
Term Section
Account 4(b)(3)(ii)
ADR'S 4(j)
Assets 2
Authorized Person 3
Banking Institution 4(1)
Domestic Subcustodian 5(a)
Foreign Subcustodian 5(b)
Instruction 2
Interim Subcustodian 5(c)
Interest Bearing Deposit 4(1)
OCC 4(g)(2)
Person 6(b)
Procedural Agreement 4(h)
SEC 4(b)(3)
Securities 2
Securities Depositories and
Clearing Agencies 5(b)
Securities System 4(b)(3)
Shares 4(s)
Sovereign Risk 6(b)
Special Instruction 2
Special Subcustodian 5(c)
Subcustodian 5
1940 Act 4(v)
(h) If any part, term or provision of this Agreement is held to
be illegal, in conflict with any law or otherwise invalid by any court of
competent jurisdiction, the remaining portion or portions shall be
considered severable and shall not be affected, and the rights and
obligations of the parties shall be construed and enforced as if this
Agreement did not contain the particular part, term or provision held to
be illegal or invalid.
(i) This Agreement constitutes the entire understanding and
agreement of the parties hereto with respect to the subject matter hereof,
and accordingly supersedes, as of the effective date of this Agreement,
any custodian agreement heretofore in effect between any Fund and the
Custodian.
IN WITNESS WHEREOF, the parties hereto have caused this Custody
Agreement to be executed by their duly respective authorized officers.
UMB BANK, N.A.
BY____________________________
Title:
ATTEST:
------------------------
XXXXXXXXXX FUNDS, INC. on behalf of
XXXXXXXXXX EMERGING GROWTH FUND,
XXXXXXXXXX MIDCAP FUND, and
XXXXXXXXXX MICROCAP FUND.
BY_____________________________
Title:
ATTEST:
------------------------
APPENDIX A
DOMESTIC SUBCUSTODIANS:
United Missouri Trust Company of New York
Xxxxxx Xxxxxxx Trust Company (Foreign Securities Only)
SECURITIES SYSTEMS:
Federal Book Entry
Depository Trust Company
Participant's Trust Company
SPECIAL SUBCUSTODIANS:
FOREIGN SUBCUSTODIANS:
SECURITIES DEPOSITORIES AND CLEARING AGENCIES:
Euroclear
XXXXXXXXXX FUNDS, INC. on behalf of
its XXXXXXXXXX EMERGING GROWTH FUND,
XXXXXXXXXX MIDCAP FUND, and
XXXXXXXXXX MICROCAP FUND.
UMB Bank, N.A.
By:______________________ By:________________________
Date
