Exhibit 8.1
CUSTODY AGREEMENT
THIS AGREEMENT made the 1st day of July, 1991, 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 LEBENTHAL FUNDS, INC.,
a Maryland corporation, having its principal office and place of business at
00 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Fund").
WITNESSETH:
WHEREAS, Fund desires to appoint Investors Fiduciary Trust Company as
custodian of the securities and monies of Fund's investment portfolio; and
WHEREAS, Investors Fiduciary Trust Company is willing to accept such
appointment;
NOW THEREFORE, for and in consideration of the mutual promises
contained herein, the parties hereto, intending to be legally bound, mutually
covenant and agree as follows:
1. APPOINTMENT OF CUSTODIAN. Fund hereby constitutes and appoints
Custodian as custodian of the securities and monies at any time owned by the
Fund.
2. REPRESENTATIONS AND WARRANTIES.
A. Fund hereby represents, warrants and acknowledges to
Custodian:
1. That it is a corporation or trust (as specified
above) duly organized and existing and in good standing under the laws of its
state of organization, and that it is registered under the Investment Company
Act of 1940 (the "1940 Act"); and
2. That it has the requisite power and authority under
applicable law, its articles of incorporation and its bylaws to enter into
this Agreement; that it has taken all requisite action necessary to appoint
Custodian as custodian for the Fund; that this Agreement has been duly
executed and delivered by Fund; and that this Agreement constitutes a legal,
valid and binding obligation of Fund, enforceable in accordance with its
terms.
B. Custodian hereby represents, warrants and acknowledges to
Fund:
1. That it is a trust company duly organized and
existing and in good standing under the laws of the State of Missouri; and
2. That it has the requisite power and authority under
applicable law, its charter and its bylaws to enter into and perform this
Agreement; that this Agreement has been duly executed and delivered by
Custodian; and that this Agreement constitutes a legal, valid and binding
obligation of Custodian, enforceable in accordance with its terms.
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3. DUTIES AND RESPONSIBILITIES OF CUSTODIAN.
A. Delivery of Assets
Except as permitted by the 1940 Act, Fund will deliver or cause
to be delivered to Custodian on the effective date of this Agreement, or as
soon thereafter as practicable, and from time to time thereafter, all
portfolio securities acquired by it and monies then owned by it or from time
to time coming into its possession during the time this Agreement shall
continue in effect. Custodian shall have no responsibility or liability
whatsoever for or on account of securities or monies not so delivered.
B. Delivery of Accounts and Records
Fund shall turn over or cause to be turned over to Custodian
all of the Fund's relevant accounts and records previously maintained.
Custodian shall be entitled to rely conclusively on the completeness and
correctness of the accounts and records turned over to it, and Fund shall
indemnify and hold Custodian harmless of and from any and all expenses,
damages and losses whatsoever arising out of or in connection with any error,
omission, inaccuracy or other deficiency of such accounts and records or in
the failure of Fund to provide, or to provide in a timely manner, any
accounts, records or information needed by the Custodian to perform its
functions hereunder.
C. Delivery of Assets to Third Parties
Custodian will receive delivery of and keep safely the assets
of Fund delivered to it from time to time segregated in a separate account,
and if Fund is comprised of more than one portfolio of investment securities
(each a "Portfolio") Custodian shall keep the assets of each Portfolio
segregated in a separate account. Custodian will not deliver, assign, pledge
or hypothecate any such assets to any person except as permitted by the
provisions of this Agreement or any agreement executed by it according to the
terms of Section 3.S. of this Agreement. Upon delivery of any such assets to a
subcustodian pursuant to Section 3.S. of this Agreement, Custodian will create
and maintain records identifying those assets which have been delivered to the
subcustodian as belonging to the Fund, by Portfolio if applicable. The
Custodian is responsible for the safekeeping of the securities and monies of
Fund only until they have been transmitted to and received by other persons as
permitted under the terms of this Agreement, except for securities and monies
transmitted to subcustodians appointed under Section 3.S. of this Agreement,
for which Custodian remains responsible to the extent provided in Section 3.S.
hereof. Custodian may participate directly or indirectly through a
subcustodian in the Depository Trust Company (DTC), Treasury/Federal Reserve
Book Entry System (Fed System), Participant Trust Company (PTC) or other
depository approved by the Fund (as such entities are defined at 17 CFR
Section 270.17f-4(b)) (each a "Depository" and collectively, the
"Depositories").
D. Registration of Securities
The Custodian shall at all times hold registered securities of
the Fund in the name of the Custodian, the Fund, or a nominee of either of
them, unless specifically directed by instructions to hold such registered
securities in so-called "street name," provided that, in any event, all such
securities and other assets 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 or custodian for customers, and provided further, that the records
of the Custodian at all time shall indicate the Fund or other customer for
which such securities and other assets are held in such account and the
respective interests therein. If, however, the Fund directs the Custodian to
maintain securities in "street name", notwithstanding anything contained
herein to the contrary, the Custodian shall be obligated only to utilize its
best efforts to timely collect income due the Fund on such securities and to
notify the Fund of relevant corporate actions including, without limitation,
pendency of calls, maturities, tender or exchange offers. All securities, and
the ownership thereof by Fund, which are held by Custodian hereunder, however,
shall at all
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times be identifiable on the records of the Custodian. The Fund agrees to hold
Custodian and its nominee harmless for any liability as a shareholder of
record of securities held in custody.
E. Exchange of Securities
Upon receipt of instructions as defined herein in Section 4.A,
Custodian will exchange, or cause to be exchanged, portfolio securities held
by it for the account of Fund for other securities or cash issued or paid in
connection with any reorganization, recapitalization, merger, consolidation,
split-up of shares, change of par value, conversion or otherwise, and will
deposit any such securities in accordance with the terms of any reorganization
or protective plan. Without instructions, Custodian is authorized to exchange
securities held by it in temporary form for securities in definitive form, to
effect an exchange of shares when the par value of the stock is changed, and,
upon receiving payment therefor, to surrender bonds or other securities held
by it at maturity or when advised of earlier call for redemption, except that
Custodian shall receive instructions prior to surrendering any convertible
security.
F. Purchases of Investments of the Fund
Fund will, on each business day on which a purchase of
securities shall be made by it, deliver to Custodian instructions which shall
specify with respect to each such purchase:
1. If applicable, the name of the Portfolio making such
purchase;
2. The name of the issuer and description of the
security;
3. The number of shares and 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;
8. The name of the person from whom or the broker or
dealer through whom the purchase was made; and
9. Whether the security is to be received in
certificated form or via a specified Depository.
In accordance with such instructions, Custodian will pay for
out of monies held for the account of Fund, but only insofar as such monies
are available for such purpose, and receive the portfolio securities so
purchased by or for the account of Fund, except that Custodian may in its sole
discretion advance funds to the Fund which may result in an overdraft because
the monies held by the Custodian on behalf of the Fund are insufficient to pay
the total amount payable upon such purchase. Except as otherwise instructed by
Fund, such payment shall be made by the Custodian only upon receipt of
securities: (a) by the Custodian; (b) by a clearing corporation of a national
exchange of which the Custodian is a member; or (c) by a Depository.
Notwithstanding the foregoing, (i) in the case of a repurchase agreement, the
Custodian may release funds to a Depository prior to the receipt of advice
from the Depository that the securities underlying such repurchase agreement
have been transferred by book-entry into the account maintained with such
Depository by the
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Custodian, on behalf of its customers, provided that the Custodian's
instructions to the Depository require that the Depository make payment of
such funds only upon transfer by book-entry of the securities underlying the
repurchase agreement in such account; (ii) in the case of time deposits, call
account deposits, currency deposits and other deposits, foreign exchange
transactions, futures contracts or options, the Custodian may make payment
therefor before receipt of an advice or confirmation evidencing said deposit
or entry into such transaction; and (iii) in the case of the purchase of
securities, the settlement of which occurs outside of the United States of
America, the Custodian may make, or cause a subcustodian appointed pursuant to
Section 3.S.2. of this Agreement to make, payment therefor in accordance with
generally accepted local custom and market practice.
G. Sales and Deliveries of Investments of the Fund - Other than
Options and Futures Fund will, on each business day on which a sale of
investment securities (other than options and futures) of Fund has been made,
deliver to Custodian instructions specifying with respect to each such sale:
1. If applicable, the name of the Portfolio making such
sale;
2. The name of the issuer and description of the
securities;
3. The number of shares and principal amount sold, and
accrued interest, if any;
4. The date on which the securities sold were purchased
or other information identifying the securities sold and to be delivered;
5. The trade date;
6. The settlement date;
7. The sale price per unit and the brokerage commission,
taxes or other expenses payable in connection with such sale;
8. The total amount to be received by 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 Fund to the broker or other person specified in the instructions relating
to such sale. Except as otherwise instructed by Fund, such delivery shall be
made upon receipt of payment therefor: (a) in such form as is satisfactory to
the Custodian; (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, on behalf of its
customers, with a Depository. Notwithstanding the foregoing: (i) in the case
of securities held in physical form, such securities shall be delivered in
accordance with "street delivery custom" to a broker or its clearing agent; or
(ii) in the case of the sale of securities, the settlement of which occurs
outside of the United States of America, the Custodian may make, or cause a
subcustodian appointed pursuant to Section 3.S.2. of this Agreement to make,
payment therefor in accordance with generally accepted local custom and market
practice.
H. Purchases or Sales of Options and Futures.
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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. If applicable, 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 or closing transaction;
h. Whether the transaction involves a put or
call;
i. Whether the option is written or purchased;
and
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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,
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. Options on Index Future Contracts
a. The underlying index future contract;
b. The premium;
c. The expiration date;
d. The number of options;
e. The exercise price;
f. Whether the transaction involves an opening,
exercising, expiring or closing transaction;
g. Whether the transaction involves a put or
call;
h. Whether the option is written or purchased;
and
i. The market on which the option is traded.
I. Securities Pledged or Loaned
If specifically allowed for in the prospectus of Fund, and
subject to such additional terms and conditions as Custodian may require:
1. Upon receipt of instructions, Custodian will release
or cause to be released securities held in custody to the pledgee designated
in such instructions by way of pledge or hypothecation to secure any loan
incurred by Fund; provided, however, that the securities shall be released
only upon payment to Custodian of the monies borrowed, except that in cases
where additional collateral is required to secure a
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borrowing already made, further securities may be released or caused to be
released for that purpose upon receipt of instructions. Upon receipt of
instructions, Custodian will pay, but only from funds available for such
purpose, any such loan upon redelivery to it of the securities pledged or
hypothecated therefor and upon surrender of the note or notes evidencing such
loan.
2. Upon receipt of instructions, Custodian will release
securities held in custody to the borrower designated in such instructions;
provided, however, that the securities will be released only upon deposit with
Custodian of full cash collateral as specified in such instructions, and that
Fund will retain the right to any dividends, interest or distribution on such
loaned securities. Upon receipt of instructions and the loaned securities,
Custodian will release the cash collateral to the borrower.
J. Routine Matters
Custodian will, in general, attend to all routine and
mechanical matters in connection with the sale, exchange, substitution,
purchase, transfer, or other dealings with securities or other property of
Fund except as may be otherwise provided in this Agreement or directed from
time to time by the Fund in writing.
K. Deposit Accounts
Custodian will open and maintain one or more special purpose
deposit accounts in the name of Custodian ("Accounts"), subject only to draft
or order by Custodian upon receipt of instructions. All monies received by
Custodian from or for the account of Fund shall be deposited in said Accounts.
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
an Account, Custodian agrees to make Fed Funds available to the Fund in the
amount of the check. Deposits made by Federal Reserve wire will be available
to the Fund immediately and ACH wires will be available to the Fund on the
next business day. Income earned on the portfolio securities will be credited
to the Fund based on the schedule attached as Exhibit A. The Custodian will be
entitled to reverse any credited amounts where credits have been made and
monies are not finally collected. If monies are collected after such reversal,
the Custodian will credit the Fund in that amount. Custodian may open and
maintain Accounts in its own banking department, or in such other banks or
trust companies as may be designated by it or by Fund in writing, all such
Accounts, however, to be in the name of Custodian and subject only to its
draft or order. Funds received and held for the account of different
Portfolios shall be maintained in separate Accounts established for each
Portfolio.
L. Income and other Payments to Fund
Custodian will:
1. Collect, claim and receive and deposit for the
account of Fund all income and other payments which become due and payable on
or after the effective date of this Agreement with respect to the securities
deposited under this Agreement, and credit the account of Fund in accordance
with the schedule attached hereto as Exhibit A. If, for any reason, the Fund
is credited with income that is not subsequently collected, Custodian may
reverse that credited amount.
2. Execute ownership and other certificates and
affidavits for all federal, state and local tax purposes in connection with
the collection of bond and note coupons; and
3. Take such other action as may be necessary or proper
in connection with:
a. the collection, receipt and deposit of such
income and other payments, including but not limited to the presentation for
payment of:
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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 should reasonably be expected to
have knowledge; and
b. the endorsement for collection, in the name
of Fund, of all checks, drafts or other negotiable instruments. Custodian,
however, will not be required to institute suit or take other extraordinary
action to enforce collection except upon receipt of instructions and upon
being indemnified to its satisfaction against the costs and expenses of such
suit or other actions. Custodian will receive, claim and collect all stock
dividends, rights and other similar items and will deal with the same pursuant
to instructions. Unless prior instructions have been received to the contrary,
Custodian will, without further instructions, sell any rights held for the
account of Fund on the last trade date prior to the date of expiration of such
rights.
M. Payment of Dividends and other Distributions
On the declaration of any dividend or other distribution on the
shares of capital stock of Fund ("Fund Shares") by the Board of Directors of
Fund, Fund shall deliver to Custodian instructions with respect thereto. On
the date specified in such instructions for the payment of such dividend or
other distribution, Custodian will pay out of the monies held for the account
of Fund, insofar as the same shall be available for such purposes, and credit
to the account of the Dividend Disbursing Agent for Fund, such amount as may
be necessary to pay the amount per share payable in cash on Fund Shares issued
and outstanding on the record date established by such resolution.
N. Shares of Fund Purchased by Fund
Whenever any Fund Shares are repurchased or redeemed by Fund,
Fund or its agent shall advise Custodian of the aggregate dollar amount to be
paid for such shares and shall confirm such advice in writing. Upon receipt of
such advice, Custodian shall charge such aggregate dollar amount to the
account of Fund and either deposit the same in the account maintained for the
purpose of paying for the repurchase or redemption of 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 Fund Shares have
been cancelled and removed from the shareholder records.
O. Shares of Fund Purchased from Fund
Whenever Fund Shares are purchased from Fund, Fund will deposit
or cause to be deposited with Custodian the amount received for such shares.
Custodian shall not have any duty or responsibility to determine that Fund
Shares purchased from Fund have been added to the proper shareholder account
or accounts or that the proper number of such shares have been added to the
shareholder records.
P. Proxies and Notices
Custodian will promptly deliver or mail or have delivered or
mailed to Fund all proxies properly signed, all notices of meetings, all proxy
statements and other notices, requests or announcements affecting or relating
to securities held by Custodian for Fund and will, upon receipt of
instructions, execute and deliver or cause its nominee to execute and deliver
or mail or have delivered or mailed such proxies or other authorizations as
may be required. Except as provided by this Agreement or pursuant to
instructions hereafter received by Custodian, neither it nor its nominee will
exercise any power inherent in any such securities, including any power to
vote the same, or execute any proxy, power of attorney, or other similar
instrument
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voting any of such securities, or give any consent, approval or waiver with
respect thereto, or take any other similar action.
Q. Disbursements
Custodian will pay or cause to be paid, insofar as funds are
available for the purpose, bills, statements and other obligations of Fund
(including but not limited to obligations in connection with the conversion,
exchange or surrender of securities owned by Fund, interest charges, dividend
disbursements, taxes, management fees, custodian fees, legal fees, auditors'
fees, transfer agents' fees, brokerage commissions, compensation to personnel,
and other operating expenses of Fund) pursuant to instructions of Fund setting
forth the name of the person to whom payment is to be made, the amount of the
payment, and the purpose of the payment.
R. Daily Statement of Accounts
Custodian will, within a reasonable time, render to Fund a
detailed statement of the amounts received or paid and of securities received
or delivered for the account of Fund during each business day. Custodian will,
from time to time, upon request by Fund, render a detailed statement of the
securities and monies held for Fund under this Agreement, and Custodian will
maintain such books and records as are necessary to enable it to do so.
Custodian will permit such persons as are authorized by Fund, including Fund's
independent public accountants, reasonable access to such records or will
provide reasonable confirmation of the contents of such records, and if
demanded, Custodian will permit federal and state regulatory agencies to
examine the securities, books and records. Upon the written instructions of
Fund or as demanded by federal or state regulatory agencies, Custodian will
instruct any subcustodian to permit such persons as are authorized by Fund,
including Fund's independent public accountants, reasonable access to such
records or to provide reasonable confirmation of the contents of such records,
and to permit such agencies to examine the books, records and securities held
by such subcustodian which relate to Fund.
S. Appointment of Subcustodians
1. Notwithstanding any other provisions of this
Agreement, all or any of the monies or securities of Fund may be held in
Custodian's own custody or in the custody of one or more other banks or trust
companies acting as subcustodians as may be selected by Custodian. Any such
subcustodian selected by the Custodian must have the qualifications required
for a custodian under the 1940 Act, as amended. It is understood that
Custodian initially intends to appoint United Missouri Bank, N.A. (UMB) and
United Missouri Trust Company of New York (UMTCNY) as subcustodians. Custodian
shall be responsible to the Fund for any loss, damage or expense suffered or
incurred by the Fund resulting from the actions or omissions of UMB, UMTCNY
and any other subcustodians selected and appointed by Custodian (except
subcustodians appointed at the request of Fund and as provided in Subsection 2
below) to the same extent Custodian would be responsible to the Fund under
Section 5. of this Agreement if it committed the act or omission itself. Upon
request of the Fund, 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, or (iii) for other reasonable purposes
specified by Fund; provided, however, that the Custodian shall be responsible
to the Fund for any loss, damage or expense suffered or incurred by the Fund
resulting from the 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 the Custodian's contracts with any such subcustodians
appointed at the request of Fund. Custodian shall be responsible to the Fund
for any loss, damage or expense suffered or incurred by the Fund resulting
from the actions or omissions of any Depository only to the same extent such
Depository is responsible to Custodian.
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2. Notwithstanding any other provisions of this
Agreement, Fund's foreign securities (as defined in Rule 17f-5(c)(1) under the
0000 Xxx) and Fund's cash or cash equivalents, in amounts deemed by the Fund
to be reasonably necessary to effect Fund's foreign securities transactions,
may be held in the custody of one or more banks or trust companies acting as
subcustodians, and thereafter, pursuant to a written contract or contracts as
approved by Fund's Board of Directors, may be transferred to accounts
maintained by any such subcustodian with eligible foreign custodians, as
defined in Rule 17f-5(c)(2). Custodian shall be responsible to the Fund for
any loss, damage or expense suffered or incurred by the Fund resulting from
the actions or omissions of any foreign subcustodians or a domestic
subcustodian contracting with such foreign subcustodians only to the same
extent such domestic subcustodian is responsible to the Custodian.
T. Accounts and Records Property of Fund
Custodian acknowledges that all of the accounts and records
maintained by Custodian pursuant to this Agreement are the property of Fund,
and will be made available to Fund for inspection or reproduction within a
reasonable period of time, upon demand. Custodian will assist Fund's
independent auditors, or upon approval of Fund, or upon demand, any regulatory
body, in any requested review of Fund's accounts and records but shall be
reimbursed by Fund for all expenses and employee time invested in any such
review outside of routine and normal periodic reviews. Upon receipt from Fund
of the necessary information or instructions, Custodian will supply
information from the books and records it maintains for Fund that Fund needs
for tax returns, questionnaires, periodic reports to shareholders and such
other reports and information requests as Fund and Custodian shall agree upon
from time to time.
U. Adoption of Procedures
Custodian and Fund may from time to time adopt procedures as
they agree upon, and Custodian may conclusively assume that no procedure
approved or directed by Fund or its accountants or other advisors conflicts
with or violates any requirements of its prospectus, articles of
incorporation, bylaws, any applicable law, rule or regulation, or any order,
decree or agreement by which Fund may be bound. Fund will be responsible to
notify Custodian of any changes in statutes, regulations, rules, requirements
or policies which might necessitate changes in Custodian's responsibilities or
procedures.
V. Overdrafts
If Custodian shall in its sole discretion advance funds to the
account of the Fund which results in an overdraft in any Account because the
monies held therein by Custodian on behalf of the Fund are insufficient to pay
the total amount payable upon a purchase of securities as specified in Fund's
instructions or for some other reason, the amount of the overdraft shall be
payable by the Fund to Custodian upon demand together with the overdraft
charge set forth on the then-current Fee Schedule from the date advanced until
the date of payment. Fund hereby grants Custodian a lien on and security
interest in the assets of the Fund to secure the full amount of any
outstanding overdraft and related overdraft charges.
W. Exercise of Rights; Tender Offers
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, 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.
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4. INSTRUCTIONS.
A. The term "instructions", as used herein, means written
(including telecopied or telexed) or oral instructions which Custodian
reasonably believes were given by a designated representative of Fund. Fund
shall deliver to Custodian, prior to delivery of any assets to Custodian and
thereafter from time to time as changes therein are necessary, written
instructions naming one or more designated representatives to give
instructions in the name and on behalf of Fund, which instructions may be
received and accepted by Custodian as conclusive evidence of the authority of
any designated representative to act for Fund and may be considered to be in
full force and effect (and Custodian will be fully protected in acting in
reliance thereon) until receipt by Custodian of notice to the contrary. Unless
such written instructions delegating authority to any person to give
instructions specifically limit such authority to specific matters or require
that the approval of anyone else will first have been obtained, Custodian will
be under no obligation to inquire into the right of such person, acting alone,
to give any instructions whatsoever which Custodian may receive from such
person. If Fund fails to provide Custodian any such instructions naming
designated representatives, any instructions received by Custodian from a
person reasonably believed to be an appropriate representative of Fund shall
constitute valid and proper instructions hereunder.
B. No later than the next business day immediately following
each oral instruction, Fund will send Custodian written confirmation of such
oral instruction. At Custodian's sole discretion, Custodian may record on
tape, or otherwise, any oral instruction whether given in person or via
telephone, each such recording identifying the parties, the date and the time
of the beginning and ending of such oral instruction.
5. LIMITATION OF LIABILITY OF CUSTODIAN.
A. Custodian shall at all times use reasonable care and due
diligence and act in good faith in performing its duties under this Agreement.
Custodian shall not be responsible for, and the Fund shall indemnify and hold
Custodian harmless from and against, any and all losses, damages, costs,
charges, counsel fees, payments, expenses and liability which may be asserted
against Custodian, incurred by Custodian or for which Custodian may be held to
be liable, arising out of or attributable to:
1. All actions taken by Custodian pursuant to this
Agreement or any instructions provided to it hereunder, provided that
Custodian has acted in good faith and with due diligence and reasonable care;
and
2. The Fund's refusal or failure to comply with the
terms of this Agreement (including without limitation the Fund's failure to
pay or reimburse Custodian under this indemnification provision), the Fund's
negligence or willful misconduct, or the failure of any representation or
warranty of the Fund hereunder to be and remain true and correct in all
respects at all times.
B. Custodian may request and obtain at the expense of Fund the
advice and opinion of counsel for Fund or of its own counsel with respect to
questions or matters of law, and it shall be without liability to Fund for any
action taken or omitted by it in good faith, in conformity with such advice or
opinion. If Custodian reasonably believes that it could not prudently act
according to the instructions of the Fund or the Fund's accountants or
counsel, it may in its discretion, with notice to the Fund, not act according
to such instructions.
C. Custodian may rely upon the advice and statements of Fund,
Fund's accountants and officers or other authorized individuals, 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 advice and statements.
10675.0002 350691.1
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D. If Fund requests Custodian in any capacity to take any
action which involves the payment of money by Custodian, or which might make
it or its nominee liable for payment of monies or in any other way, Custodian
shall be indemnified and held harmless by Fund against any liability on
account of such action; provided, however, that nothing herein shall obligate
Custodian to take any such action except in its sole discretion.
E. Custodian shall be protected in acting as custodian
hereunder upon any instructions, advice, notice, request, consent, certificate
or other instrument or paper appearing to it to be genuine and to have been
properly executed and shall be entitled to receive upon request as conclusive
proof of any fact or matter required to be ascertained from Fund hereunder a
certificate signed by an officer or designated representative of Fund.
F. Custodian shall be under no duty or obligation to inquire
into, and shall not be liable for:
1. The validity of the issue of any securities purchased
by or for Fund, the legality of the purchase of any securities or foreign
currency positions or evidence of ownership required by Fund to be received by
Custodian, or the propriety of the decision to purchase or amount paid
therefor;
2. The legality of the sale of any securities or foreign
currency positions by or for Fund, or the propriety of the amount for which
the same are sold;
3. The legality of the issue or sale of any Fund Shares,
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
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,
clearinghouse funds, uncollected funds, or instrument for the payment of money
to be received by it on behalf of Fund until Custodian actually receives such
money; provided, however, that it shall advise Fund promptly if it fails to
receive any such money in the ordinary course of business and shall cooperate
with Fund toward the end that such money shall be received.
H. Except as provided in 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.
I. Custodian shall not be responsible or liable for the failure
or delay in performance of its obligations under this Agreement, or those of
any entity for which it is responsible hereunder, arising out of or caused,
directly or indirectly, by circumstances beyond the affected entity's
reasonable control, including, without limitation: any interruption, loss or
malfunction of any utility, transportation, computer (hardware or software) or
communication service; inability to obtain labor, material, equipment or
transportation, or a delay in mails; governmental or exchange action, statute,
ordinance, rulings, regulations or direction; war, strike, riot, emergency,
civil disturbance, terrorism, vandalism, explosions, labor disputes, freezes,
floods, fires, tornados, acts of God or public enemy, revolutions, or
insurrection.
J. IN NO EVENT AND UNDER NO CIRCUMSTANCES SHALL EITHER PARTY
TO THIS AGREEMENT BE LIABLE TO ANYONE, INCLUDING, WITHOUT LIMITATION TO THE
10675.0002 350691.1
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OTHER PARTY, FOR CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES FOR ANY ACT OR
FAILURE TO ACT UNDER ANY PROVISION OF THIS AGREEMENT EVEN IF ADVISED OF THIS
POSSIBILITY THEREOF.
6. COMPENSATION. In consideration for its services hereunder, Fund
will pay to Custodian such compensation as shall be set forth in a separate
fee schedule to be agreed to by Fund and Custodian from time to time. A copy
of the initial fee schedule is attached hereto and incorporated herein by
reference. Custodian shall also be entitled to receive, and Fund agrees to pay
to Custodian, on demand, reimbursement for Custodian's cash disbursements and
reasonable out-of-pocket costs and expenses, including attorney's fees,
incurred by Custodian in connection with the performance of services
hereunder. Custodian may charge such compensation against monies held by it
for the account of Fund. Custodian will also be entitled to charge against any
monies held by it for the account of Fund the amount of any loss, damage,
liability, advance, overdraft or expense for which it shall be entitled to
reimbursement from Fund, including but not limited to fees and expenses due to
Custodian for other services provided to the Fund by Custodian. Custodian will
be entitled to reimbursement by the Fund for the losses, damages, liabilities,
advances, overdrafts and expenses of subcustodians only to the extent that (i)
Custodian would have been entitled to reimbursement hereunder if it had
incurred the same itself directly, and (ii) Custodian is obligated to
reimburse the subcustodian therefor.
7. TERM AND TERMINATION. The initial term of this Agreement shall be
for a period of one (1) year. Thereafter, either party to this Agreement may
terminate the same by notice in writing, delivered or mailed, postage prepaid,
to the other party hereto and received not less than ninety (90) days prior to
the date upon which such termination will take effect. Upon termination of
this Agreement, Fund will pay Custodian its fees and compensation due
hereunder and its reimbursable disbursements, costs and expenses paid or
incurred to such date and Fund shall designate a successor custodian by notice
in writing to Custodian by the termination date. In the event no written order
designating a successor custodian has been delivered to Custodian on or before
the date when such termination becomes effective, then Custodian may, at its
option, deliver the securities, funds and properties of Fund to a bank or
trust company at the selection of Custodian, and meeting the qualifications
for custodian set forth in the 1940 Act and having not less that Two Million
Dollars ($2,000,000) aggregate capital, surplus and undivided profits, as
shown by its last published report, or apply to a court of competent
jurisdiction for the appointment of a successor custodian or other proper
relief, or take any other lawful action under the circumstances; provided,
however, that Fund shall reimburse Custodian for its costs and expenses,
including reasonable attorney's fees, incurred in connection therewith.
Custodian will, upon termination of this Agreement and payment of all sums due
to Custodian from Fund hereunder or otherwise, deliver to the successor
custodian so specified or appointed, or as specified by the court, at
Custodian's office, all securities then held by Custodian hereunder, duly
endorsed and in form for transfer, and all funds and other properties of Fund
deposited with or held by Custodian hereunder, and Custodian will co-operate
in effecting changes in book-entries at all Depositories. Upon delivery to a
successor custodian or as specified by the court, Custodian will have no
further obligations or liabilities under this Agreement. Thereafter such
successor will be the successor custodian under this Agreement and will be
entitled to reasonable compensation for its services. In the event that
securities, funds and other properties remain in the possession of the
Custodian after the date of termination hereof owing to failure of the Fund to
appoint a successor custodian, the Custodian shall be entitled to compensation
as provided in the then-current fee schedule hereunder for its services during
such period as the Custodian retains possession of such securities, funds and
other properties, and the provisions of this Agreement relating to the duties
and obligations of the Custodian shall remain in full force and effect.
8. NOTICES. Notices, requests, instructions and other writings
addressed to Fund at 00 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other
address as Fund may have designated to Custodian in writing, will be deemed to
have been properly given to Fund hereunder; and notices, requests,
instructions and other writings addressed to Custodian at its offices at 000
Xxxx 00xx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000, Attention: Custody Department,
or to such other address as it may have designated to Fund in writing, will be
deemed to have been properly given to Custodian hereunder.
10675.0002 350691.1
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9. MULTIPLE PORTFOLIOS. If Fund is comprised of more than one
Portfolio:
A. Each Portfolio shall be regarded for all purposes hereunder
as a separate party apart from each other Portfolio. Unless the context
otherwise requires, with respect to every transaction covered by this
Agreement, every reference herein to the Fund shall be deemed to relate solely
to the particular Portfolio to which such transaction relates. Under no
circumstances shall the rights, obligations or remedies with respect to a
particular Portfolio constitute a right, obligation or remedy applicable to
any other Portfolio. The use of this single document to memorialize the
separate agreement of each Portfolio is understood to be for clerical
convenience only and shall not constitute any basis for joining the Portfolios
for any reason.
B. Additional Portfolios may be added to this Agreement,
provided that Custodian consents to such addition. Rates or charges for each
additional Portfolio shall be as agreed upon by Custodian and Fund in writing.
10. MISCELLANEOUS.
A. This Agreement shall be construed according to, and the
rights and liabilities of the parties hereto shall be governed by, the laws of
the State of Missouri, without reference to the choice of laws principles
thereof.
B. All terms and provisions of this Agreement shall be binding
upon, inure to the benefit of and be enforceable by the parties hereto and
their respective successors and permitted assigns.
C. The representations and warranties and the indemnifications
extended hereunder are intended to and shall continue after and survive the
expiration, termination or cancellation of this Agreement.
D. No provisions of the Agreement may be amended or modified in
any manner except by a written agreement properly authorized and executed by
each party hereto.
E. The failure of either party to insist upon the performance
of any terms or conditions of this Agreement or to enforce any rights
resulting from any breach of any of the terms or conditions of this Agreement,
including the payment of damages, shall not be construed as a continuing or
permanent waiver of any such terms, conditions, rights or privileges, but the
same shall continue and remain in full force and effect as if no such
forbearance or waiver had occurred. No waiver, release or discharge of any
party's rights hereunder shall be effective unless contained in a written
instrument signed by the party sought to be charged.
F. The captions in the Agreement are included for convenience
of reference only, and in no way define or delimit any of the provisions
hereof or otherwise affect their construction or effect.
G. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original but all of which together shall
constitute one and the same instrument.
H. If any part, term or provision of this Agreement is
determined by the courts or any regulatory authority 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.
I. This Agreement may not be assigned by either party hereto
without the prior written consent of the other party.
10675.0002 350691.1
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J. Neither the execution nor performance of this Agreement
shall be deemed to create a partnership or joint venture by and between
Custodian and Fund.
K. Except as specifically provided herein, this Agreement does
not in any way affect any other agreements entered into among the parties
hereto and any actions taken or omitted by either party hereunder shall not
affect any rights or obligations of the other party hereunder.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective duly authorized officers.
INVESTORS FIDUCIARY TRUST COMPANY
By:
Title:
LEBENTHAL FUNDS, INC.
By:
Title:
10675.0002 350691.1
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EXHIBIT A
INVESTORS FIDUCIARY TRUST AVAILABILITY SCHEDULE BY TRANSACTION TYPE
TRANSACTION
DTC
PHYSICAL
FED
TYPE
CREDIT DATE
FUNDS TYPE
CREDIT DATE
FUNDS TYPE
CREDIT DATE
FUNDS TYPE
Calls Puts
As Received
C or F*
As Received
C or F*
Maturities
As Received
C or F*
Mat. Date
C or F*
Mat. Date
F
Tender Reorgs.
As Received
C
As Received
C
N/A
Dividends
Paydate
C
Paydate
C
N/A
10675.0002 350691.1
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Floating Rate Int.
Paydate
C
Paydate
C
N/A
Floating Rate Int. (No
Rate)
N/A
As Rate Received
C
N/A
Mtg. Backed P&I
Paydate
C
Paydate + 1 Bus. Day
C
Paydate
F
Fixed Rate Int.
Paydate
C
Paydate
C
Paydate
F
Euroclear
N/A
C
Paydate
C
10675.0002 350691.1
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Legend
C = Clearinghouse Funds
F = Fed Funds
N/A = Not Applicable
* Availability based on how received.
10675.0002 350691.1
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