EXHIBIT 8(a)
CUSTODY AGREEMENT
THIS AGREEMENT made the day of , 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 JANUS ASPEN SERIES, a Delaware business trust, (the
"Fund") consisting of separate portfolios represented by separate series of
shares of beneficial interest (referred to herein, together with any such
portfolios hereafter constituted, where appropriate, individually as the
"Portfolio"), having its principal office and place of business at 000 Xxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxx 00000.
WITNESSETH:
WHEREAS, the Fund desires to appoint Investors Fiduciary Trust Company as
Custodian of the securities and monies of the Fund's investment 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. The Fund hereby constitutes and appoints
Custodian as custodian of the securities and monies at any time owned
by the Fund and delivered to the Custodian.
2. DELIVERY OF CORPORATE DOCUMENTS. The 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 Trustees of the Fund appointing Custodian as
custodian hereunder and approving the form of this Agreement; and
B. Resolutions of the Trustees of the Fund designating certain
persons to give instructions on behalf of the Fund to Custodian
and authorizing Custodian to rely upon written instructions over
his/her/their signatures.
1
3. DUTIES AND RESPONSIBILITIES OF CUSTODIAN.
A. Delivery of Assets
The 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, such portfolio
securities acquired by it and monies then owned by it as such
Fund shall determine. 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 the
applicable Portfolio 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
The Fund shall turn over to Custodian all of each Portfolio
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 the Fund, and the 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 the failure of the 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
each Portfolio delivered to it from time to time segregated in a
separate account. Custodian will not deliver, assign, pledge or
hypothecate any such assets to any person except as permitted by
the provisions of this Agreement or any agreement executed by it
according to the terms of Section 3.S. of this Agreement. Upon
delivery of any such assets to a subcustodian pursuant to Section
3.S. of this Agreement, Custodian will create and maintain
records identifying those assets which have been delivered to the
subcustodian as belonging to each such Portfolio. The Custodian
is responsible for the securities and monies of the Fund only
until they have been transmitted to and received by other persons
as permitted under the terms of this Agreement, except for
securities and monies transmitted to United Missouri Bank, N.A.
(UMB) and United Missouri Trust Company of New York (UMBNY) for
which Custodian
2
remains responsible as defined in Section 5 of this Agreement.
Custodian shall be responsible for the monies and securities of
the Fund held by eligible foreign custodians under this Agreement
to the extent the domestic subcustodian with which the Custodian
contracts is responsible to Custodian. Custodian may participate
directly or indirectly through a subcustodian in the Depository
Trust Company, Treasury/Federal Reserve Book Entry System or
Participant Trust Company (PTC) (as such entities are defined at
17 CFR Section 270.17f-4(b)) or other depository approved by the
Fund and with which Custodian has a satisfactory direct or
indirect contractual relationship.
D. Registration of Securities
Custodian will hold stocks and other registerable portfolio
securities of the Fund registered in the name of the applicable
Portfolio 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 the Fund, which are held by Custodian hereunder,
however, shall at all times be identifiable on the records of the
Custodian. The Fund agrees to hold Custodian and its nominee
harmless for any liability arising solely from Custodian or its
nominee acting as a 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 the Fund for other
securities or cash issued or paid in connection with any
reorganization, recapitalization, merger, consolidation, split-up
of shares, change of par value, conversion or otherwise, and will
deposit any such securities in accordance with the terms of any
reorganization or protective plan. Without instructions,
Custodian is authorized to exchange securities held by it in
temporary form for securities in definitive form, to effect an
exchange of shares when the par value of the stock is changed,
and upon receiving payment therefor, to surrender bonds or other
securities held by it at maturity or when advised of earlier call
for redemption, except that Custodian shall receive instructions
prior to surrendering any convertible security.
3
F. Purchases of Investments of the Fund
The Fund will, on each business day on which a purchase of
securities shall be made by it, deliver to Custodian instructions
which shall specify with respect to each such purchase:
1. The name of the 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 the Portfolio, but only insofar
as monies are available therein for such purpose, and receive the
portfolio securities so purchased by or for the account of the
Portfolio except that Custodian may in its sole discretion
advance funds for the account of the Portfolio which may result
in an overdraft because the monies held by the Custodian for the
account of the Portfolio are insufficient to pay the total amount
payable upon such purchase. Such payment will be made only upon
receipt by Custodian of the securities so purchased in form for
transfer satisfactory to Custodian.
G. Sales and Deliveries of Investments of the Fund - Other than
Options and Futures
The Fund will, on each business day on which a sale of investment
securities of the Fund has been made, deliver to Custodian
instructions specifying with respect to each such sale:
1. The name of 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;
4
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 the Fund upon such sale;
and
9. The name and address of the broker or dealer through whom or
person to whom the sale was made.
In accordance with such instructions, Custodian will deliver or
cause to be delivered the securities thus designated as sold for
the account of the 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.
H. Purchases or Sales of Security Options, Options on Indices and
Security Index Futures Contracts
The Fund will, on each business day on which a purchase or sale
of the following options and/or futures shall be made by it,
deliver to Custodian instructions which shall specify with
respect to each such purchase or sale:
1. The name of the 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; and
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
5
or closing transaction;
h. Whether the transaction involves a put or call;
i. Whether the option is written or purchased; and
j. The name and address of the broker or dealer through
whom the sale or purchase was made, or other applicable
settlement instructions.
4. Security Index Futures Contracts
a. The last trading date specified in the contract and,
when available, the closing level, thereof;
b. The index level on the date the contract is entered
into;
c. The multiple;
d. Any margin requirements;
e. The need for a segregated margin account (in addition
to instructions, and if not already in the possession
of Custodian, the Fund shall deliver a substantially
complete and executed custodial safekeeping account and
procedural agreement which shall be incorporated by
reference into this Custody Agreement); and
f. The name and address of the futures commission
merchant through whom the sale or purchase was made,
or other applicable settlement instructions.
5. Option 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; and
i. The market on which the option is traded.
I. Securities Pledged or Loaned
If specifically allowed for in the prospectus or statement of
additional information of the Fund:
1. Upon receipt of instructions, Custodian will release or
cause to be released securities held in custody to the
pledgee designated in such instructions by way of pledge or
hypothecation to secure any loan incurred by 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
6
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
the 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 the Fund except as may be otherwise provided in this
Agreement or directed from time to time by the Trustees of the
Fund.
K. Deposit Account
Custodian will open and maintain a special purpose deposit
account or accounts in the name of Custodian ("Account"), subject
only to draft or order by Custodian upon receipt of instructions.
All monies received by Custodian from or for the account of a
Portfolio shall be deposited in the Account of such Portfolio.
Barring events not in the control of the Custodian such as
strikes, lockouts or labor disputes, riots, war or equipment or
transmission failure or damage, fire, flood, earthquake or other
natural disaster, action or inaction of governmental authority or
other causes beyond its control, at 9:00 a.m., Kansas City time,
on the second business day after deposit of any check into a
Portfolio's Account, Custodian agrees to make Fed Funds available
to such Portfolio in the amount of the check. Deposits made by
Federal Reserve wire will be available immediately and ACH wires
will be available on the next business day. Income earned on the
portfolio securities will be credited to the Account of the
applicable Portfolio based on the schedule attached as Exhibit A.
All collected funds received on behalf of a Portfolio shall be
deposited, according to Custodian's usual practices, into a
custody account on behalf of that Portfolio. The Custodian will
be entitled to reverse any credited amounts where credits have
been made and monies
7
are not finally collected, provided that the Custodian has made
reasonable efforts to collect such uncollected income. If monies
are collected after such reversal, the Custodian will credit the
applicable Portfolio in that amount. Custodian may open and
maintain an Account in such other banks or trust companies as may
be designated by it and by properly authorized resolution of the
Trustees of the 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 the Portfolio
Custodian will:
1. Collect, claim and receive and deposit for the account of
the Portfolios 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 applicable
Portfolio in accordance with the schedule attached hereto as
Exhibit A. If for any reason, a Portfolio is credited with
income that is not subsequently collected, Custodian may
reverse that credited amount, provided that the Custodian
has made reasonable efforts to collect such uncollected
income;
2. Execute ownership and other certificates and affidavits for
all federal, state and local tax purposes in connection with
the collection of bond and note coupons; and
3. Take such other action as may be necessary or proper in
connection with:
a. the collection, receipt and deposit of such income and
other payments, including but not limited to the
presentation for payment of:
1. all coupons and other income items requiring
presentation; and
2. all other securities which may mature or be
called, redeemed, retired or otherwise become
payable and regarding which the Custodian has
actual knowledge, or notice of which is contained
in publications of the type to which it normally
subscribes for such purpose; and
b. the endorsement for collection, in the name of 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
8
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 a Portfolio on the last trade date
prior to the date of expiration of such rights.
M. Payment of Dividends and other Distributions
On the declaration of any dividend or other distribution on the
shares of the Fund ("Fund Shares") by the Trustees of the Fund,
the Fund shall deliver to Custodian instructions with respect
thereto, including a copy of the Resolution of said Trustees
certified by the Secretary or an Assistant Secretary of the Fund
wherein there shall be set forth the record date as of which
shareholders entitled to receive such dividend or other
distribution shall be determined, the date of payment of such
dividend or distribution, and the amount payable per share on
such dividend or distribution. Except if the ex-dividend date and
the reinvestment date of any dividend are the same, in which case
funds shall remain in the custody Account, on the date specified
in such Resolution for the payment of such dividend or other
distribution, Custodian will pay out of the monies held for the
account of the applicable Portfolio, insofar as the same shall be
available for such purposes, and credit to the account of the
Dividend Disbursing Agent for the Fund, such amount as may be
necessary to pay the amount per share payable in cash on Fund
Shares issued and outstanding on the record date established by
such Resolution.
N. Shares of Fund Purchased by the Fund
Whenever Fund Shares are repurchased or redeemed by the Fund, the
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 the applicable
Portfolio and either deposit the same in the account maintained
for the purpose of paying for the repurchase or redemption of
Fund Shares or deliver the same in accordance with such advice.
Custodian shall not have any duty or responsibility to determine
that Fund Shares have been removed from the proper shareholder
account or accounts or that the proper number of such shares have
been canceled and removed from the shareholder records.
9
O. Shares of the Fund Purchased from the Fund
Whenever Fund Shares are purchased from the Fund, the Fund will
deposit or cause to be deposited with Custodian the amount
received for such shares. Custodian shall not have any duty or
responsibility in its capacity as Custodian of the Fund to
determine that Fund Shares purchased from the 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 the 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 the 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 the Fund (including but not limited to obligations
in connection with the conversion, exchange or surrender of
securities owned by the 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 the Fund) pursuant to instructions of the 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 the 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
10
the Portfolios during said day. Custodian will, from time to
time, upon request by the Fund, render a detailed statement of
the securities and monies held for the Portfolios 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 the Fund including the 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 the Fund or as
demanded by federal or state regulatory agencies, Custodian will
instruct any subcustodian to give such persons as are authorized
by the Fund including the 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 the Fund.
S. Appointment of Subcustodians
1. Notwithstanding any other provisions of this Agreement, all
or any of the monies or securities of the Fund may be held
in Custodian's own custody or in the custody of one or more
other banks or trust companies selected by Custodian. Any
such subcustodian 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 (DTC),
Treasury/Federal Reserve Book Entry System, Participant
Trust Company (PTC) (as such entities are defined at 17 CFR
Sec. 270.17f-4(b)), or other depository approved by the Fund
and with which Custodian has a satisfactory direct or
indirect contractual relationship. Custodian will appoint
UMB and UMBNY as subcustodians and Custodian shall be
responsible for UMB and UMBNY to the same extent it is
responsible to the Fund under Section 5 of this Agreement.
Custodian is not responsible for DTC, the Treasury/Federal
Reserve Book Entry System, and PTC except to the extent such
entities are responsible to Custodian. Upon request of the
Fund, the Custodian shall be willing to contract with other
subcustodians reasonably acceptable to the Custodian for
purposes of (i) effecting third-party repurchase
transactions with banks, brokers, dealers, or other entities
through the use of a common custodian or subcustodian, or
(ii) providing depository and clearing agency services with
respect to certain variable rate demand note securities;
provided, however, that the Custodian will be responsible to
the Fund for any loss, damage or expense suffered or
incurred by the Fund resulting from the
11
actions or omissions of any such subcustodian only to the
same extent such subcustodian is responsible to the
Custodian. The Fund shall be entitled to review Custodian's
contracts with BONY, MGTC, CB, and BT.
2. Notwithstanding any other provisions of this Agreement, the
Fund's foreign securities (as defined in Rule 17f-5(c)(1)
under the Investment Company Act of 1940) and the Fund's
cash or cash equivalents, in amounts reasonably necessary to
effect the 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 the Fund's Trustees, may be transferred to an
account maintained by such subcustodian with an eligible
foreign custodian, as defined in Rule 17f-5(c)(2), provided
that any such arrangement involving a foreign custodian
shall be in accordance with the provisions of Rule 17f-5
under the Investment Company Act of 1940 as that Rule may be
amended from time to time. The Fund shall be provided the
contract with the domestic subcustodian who shall contract
with the eligible foreign subcustodians. The Custodian shall
be responsible for the monies and securities of the Fund
held by eligible foreign subcustodians to the extent the
domestic subcustodian with which the Custodian contracts is
responsible to Custodian.
T. Adoption of Procedures
Custodian and the Fund may from time to time adopt procedures as
they agree upon, and Custodian may conclusively assume that no
procedure approved by the Fund, or directed by the Fund,
conflicts with or violates any requirements of its prospectus, or
governing documents such as Articles of Incorporation,
Declaration of Trust, Bylaws, or any rule or regulation of any
regulatory body or governmental agency. The Fund will be
responsible to notify Custodian of any changes in statutes,
regulations, rules or Fund policies not specifically governing
custodians or banks which might necessitate changes in
Custodian's responsibilities or procedures.
U. Overdrafts
If Custodian shall in its sole discretion advance funds to the
account of a Portfolio which results in an overdraft because the
monies held by Custodian on behalf of such Portfolio are
insufficient to pay the total amount payable upon a purchase of
securities as specified in the Fund's instructions or for some
other reason, the amount of the overdraft shall be
12
payable by the Fund to Custodian upon demand and shall bear an
interest rate determined by Custodian from the date advanced
until the date of payment.
4. INSTRUCTIONS.
A. The term "instructions", as used herein, means written or oral
instructions to Custodian from a designated representative of the
Fund. Certified copies of resolutions of the Trustees of the Fund
naming one or more designated representatives to give
instructions in the name and on behalf of the Fund, may be
received and accepted from time to time by Custodian as
conclusive evidence of the authority of any designated
representative to act for the 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 the Fund will be deemed
to authorize or permit any trustee, officer, employee, or agent
of the Fund to withdraw any of the securities or similar
investments of the 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 a designated representative
of the Fund will undertake to deliver for the Fund's account
monies, (provided such monies are on hand or available) in
connection with the Fund's transactions and to wire transfer such
monies to such broker, dealer, subcustodian, bank or other agent
specified in such instructions by a designated representative of
the Fund.
B. No later than the next business day immediately following each
oral instruction, the Fund will send Custodian written
confirmation of such oral instruction. At either party's sole
discretion, either party 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.
13
A. Notwithstanding any other provisions of this Agreement, Custodian
shall hold harmless and indemnify the Fund from and against any
loss or liability arising out of Custodian's breach of this
Agreement or its negligence, willful misconduct, or bad faith.
Custodian shall not be liable for consequential, special or
punitive damages. Custodian may request and obtain the advice and
opinion of counsel for the Fund, or of its own counsel with
respect to questions or matters of law, and it shall be without
liability to the Fund for any action taken or omitted by it in
good faith, in conformity with such advice or opinion. If
Custodian reasonably believes that it could not prudently act
according to the instructions of the Fund or the Fund's counsel,
it may in its discretion, with notice to the Fund, not act
according to such instructions.
B. Custodian may rely upon the advice of the Fund and upon
statements of the 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 the 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 the Fund given prior to such actions,
shall be and be kept indemnified by the 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 the 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 the 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 the 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 the
14
Fund, the legality of the purchase thereof or evidence of
ownership required by the 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 the
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
beneficial interest of the Fund, or the sufficiency of the
amount to be received therefor;
4. The legality of the repurchase or redemption of any Fund
Shares, or the propriety of the amount to be paid therefor;
or
5. The legality of the declaration of any dividend by the 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 the Fund, until
Custodian actually receives such money, provided only that it
shall advise the Fund promptly if it fails to receive any such
money in the ordinary course of business, and use its best
efforts and cooperate with the Fund toward the end that such
money shall be received.
H. Except for any subcustodians or eligible foreign custodians
appointed under Section 3.S., Custodian shall not be responsible
for loss occasioned by the acts, neglects, defaults or insolvency
of any broker, bank, trust company, or any other person with whom
Custodian may deal in the absence of negligence, or bad faith on
the part of Custodian.
I. Notwithstanding anything herein to the contrary, Custodian may,
and with respect to any foreign subcustodian appointed under
Section 3.S.2. must, provide the Fund for its approval,
agreements with banks or trust companies which will act as
subcustodians for the Fund pursuant to Section 3.S. of this
Agreement.
6. COMPENSATION. The Fund will pay to Custodian such compensation as is
stated in the Fee Schedule attached hereto as Exhibit B, which may be
changed from time to time as agreed to in writing by Custodian and the
Fund. Custodian may charge such compensation against monies held by it
for the account of the Fund. Custodian will also be entitled,
notwithstanding the provisions of Sections 5.C. or 5.D. hereof, to
charge against any monies held by it for the account of the Fund the
amount of any loss, damage, liability, advance, or expense for which
it shall be entitled to reimbursement under the provisions of this
Agreement including fees or expenses due to Custodian for other
services provided to the
15
Fund by the Custodian. Custodian will not be entitled to reimbursement
by the Fund for any loss or expenses of any subcustodian, except to
the extent (i) Custodian would have been entitled to reimbursement
hereunder if it had incurred the loss or expense itself directly, and
(ii) Custodian is obligated to reimburse the subcustodian for such
loss or expense.
7. TERMINATION. Either party to this Agreement may terminate the same by
notice in writing, delivered or mailed, postage prepaid, to the other
party hereto and received not less than sixty (60) days prior to the
date upon which such termination will take effect. Upon termination of
this Agreement, the Fund will pay to Custodian such compensation for
its reimbursable disbursements, costs and expenses paid or incurred to
such date and the Fund will use its best efforts to obtain a successor
custodian. Unless the holders of a majority of the outstanding shares
of the Fund vote to have the securities, funds and other properties
held under this Agreement delivered and paid over to some other
person, firm or corporation specified in the vote, having not less
than Two Million Dollars ($2,000,000) aggregate capital, surplus and
undivided profits, as shown by its last published report, and meeting
such other qualifications for custodian as set forth in the governing
documents of the Fund, the Trustees of the 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 the Fund deposited with or held by Custodian hereunder, or will
cooperate in effecting changes in book-entries at the DTC or in the
Treasury/Federal Reserve Book-Entry System, PTC, or other depository.
In the event no such vote has been adopted by the shareholders of the
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 the Fund to a bank or trust company at the selection
of Custodian and meeting the qualifications for custodian, if any, set
forth in the governing documents of the Fund and having not less than
Two Million Dollars ($2,000,000) aggregate capital, surplus and
undivided profits, as shown by its last published report. Upon such
delivery to a successor custodian, Custodian will have no further
obligations or liabilities under this Agreement. Thereafter such bank
or trust company will be the successor custodian under this Agreement
and will be entitled to reasonable compensation for its services. In
the event that no such successor custodian can be found, the Fund will
submit to its shareholders, before permitting delivery of the cash and
securities owned by the Fund to anyone other than a successor
custodian, the question of whether the 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
16
securities, funds and property of the Fund which is permitted by the
Investment Company Act of 1940, the Fund's governing documents 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 the Fund at 000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000,
or at such other address as the Fund may have designated to Custodian
in writing, will be deemed to have been properly given to the Fund
hereunder; and notices, requests, instructions and other writings
received by Custodian at its offices at 000 Xxxx 00xx Xxxxxx, Xxxxxx
Xxxx, Xxxxxxxx 00000, or to such other address as it may have
designated to the Fund in writing, will be deemed to have been
properly given to Custodian hereunder.
9. MISCELLANEOUS.
A. This Agreement is executed and delivered in the State of Missouri
and shall be governed by the laws of said state.
B. All the terms and provisions of this Agreement shall be binding
upon, inure to the benefit of, and be enforceable by the
respective successor and assigns of the parties hereto.
C. No provisions of the Agreement may be amended or modified in any
manner except by a written agreement properly authorized and
executed by both parties hereto.
D. The captions in this Agreement are included for convenience of
reference only, and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or
effect.
E. This Agreement may be executed simultaneously in two or more
counterparts, each of which will be deemed an original but all of
which together will constitute one and the same instrument.
F. If any part, term or provision of this Agreement is held by the
courts to be illegal, in conflict with any law or otherwise
invalid, the remaining portion or portions shall be considered
severable and not be affected, and the rights and obligations of
the parties shall be construed and enforced as if the Agreement
did not contain the particular part, term or provision held to be
illegal or invalid.
G. Custodian will not release the identity of the Fund to an issuer
which requests such information pursuant to the Shareholder
Communications Act of 1985 for the specific purpose of direct
communications between
17
such issuer and the Fund unless the Fund directs the Custodian
otherwise.
H. This Agreement may not be assigned by either party without prior
written consent of the other party.
I. If any provision of the Agreement, either in its present form or
as amended from time to time, limits, qualifies, or conflicts
with the Investment Company Act of 1940 and the rules and
regulations promulgated thereunder, such statutes, rules and
regulations shall be deemed to control and supersede such
provision without nullifying or terminating the remainder of the
provisions of this Agreement.
J. If the Fund is organized as a Delaware business trust, a copy of
the Certificate of Trust of the Fund is on file with the
Secretary of the State of Delaware and notice is hereby given
that the Agreement has been executed on behalf of the Fund by the
undersigned officer of the Fund in his/her capacity as an officer
of the Fund. The obligations of this Agreement shall only be
binding upon the assets and property of the Fund and shall not be
binding upon any Trustee, officer or shareholder of the Fund
individually.
18
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly respective authorized officers.
INVESTORS FIDUCIARY TRUST
COMPANY
By:_____________________________________
Title:__________________________________
JANUS ASPEN SERIES
By:_____________________________________
Title:__________________________________
19
