CUSTODY AGREEMENT
AGREEMENT dated as of May XX, 0000, between Colonial Value Investing
Portfolios - Equity Portfolio (the "Trust"), a Massachusetts business trust,
having its principal office and place of business at Xxx Xxxxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000, and _____________________________ (the
"Custodian"), a _______________________________ company with its principal place
of business at
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WITNESSETH
That for an in consideration of the mutual promises hereinater set forth,
the Trust and the Custodian agree as follows:
1. Definitions.
Whenever used in this Agreement or in any Schedules to this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
(a) "Authorized Person" shall be deemed to include the President, any
Vice President, the Secretary, the Assistant Secretary, the Treasurer
and any Assistant Treasurer, or any other person, whether or not any
such person is an officer of the Trust, duly authorized by the Board
of Trustees of the Trust, duly authorized by the Board of Trustees of
the Trust to give Oral Instructions and Written Instructions on
behalf of the Trust and listed in the certification annexed hereto as
Appendix A or such other certification as may be received by the
Custodian from time to time.
(b) "Book-Entry System" shall mean the Federal Reserve/Treasury
book-entry system for United States and federal agency securities,
its successor or successors and its nominee or nominees.
(c) "Declaration of Trust" shall mean the Declaration of Trust of the
Trust as now in effect and as the same may be amended from time to
time.
(d) "Depository" shall mean The Depository Trust Company ("DTC"), a
clearing agency registered with the Securities and Exchange
Commission under Section 17(a) of the Securities Exchange Act of
1934, as amended, its successor or successors and its nominee or
nominees, in which the Custodian is hereby specifically authorized to
make deposits. The term "Depository" shall further mean and include
any other person to be named in Written Instructions a authorized to
act as a depository under the 1940 Act, its successor or successors
and its nominee or nominees.
(e) "Money Market Security" shall be deemed to include, without
limitation, debt obligations issued or guaranteed as to interest and
principal by the Government of the United States or agencies or
instrumentalities thereof, commercial paper, bank certificates of
deposit, bankers' acceptances and short-term corporate obligations,
where the purchase or sale of such securities normally requires
settlement in federal funds on the same day as such purchase or sale,
and repurchase and reverse repurchase agreements with respect to any
of the foregoing types of securities.
(f) "Oral Instructions" shall mean verbal instructions actually received
by the Custodian from a person reasonably believed by the Custodian
to be an Authorized Person.
(g) "Prospectus" shall mean the Series' current prospectus and statement
of additional information relating to the Series' Shares under the
Securities Act of 1933, as amended.
(h) "Security" or "Securities" shall be deemed to include bonds,
debentures, notes, stocks, shares, evidences of indebtedness, and
other securities and investments from time to time owned by each
Series.
(i) "Shares" refers to the shares of beneficial interest of each Series
of the Trust.
(j) "Series" refers to VIP Aggressive Growth Fund, VIP Diversified Return
Fund and VIP Inflation Hedge Fund, or such other series as may from
time to time be created and designated in accordance with the
provisions of the Declaration of Trust.
(k) "Transfer Agent" shall mean the person which performs the transfer
agent, dividend disbursing agent and shareholder servicing agent
functions for the Trust.
(l) "Written Instructions" shall mean a written or electronic
communication actually received by the Custodian from an Authorized
Person or from a person reasonable believed by the Custodian to be an
Authorized Person to telex or any other such system whereby the
receiver of such communication is able to verify through codes or
otherwise with a reasonable degree of certainty the authenticity of
the sender of such communication.
(m) The "40 Act" refers to the Investment Company Act of 1940, and the
Rules and Regulations thereunder, all as amended from time to time.
2. Appointment of Custodian.
(a) The Trust hereby constitutes and appoints the Custodian as custodian
of all the Securities and moneys at the time owned by or in the
possession of the Trust and specifically allocated to a Series during
the period of this Agreement.
(b) The Custodian hereby accepts appointment as such custodian for the
Trust and any Series and agrees to perform the duties thereof as
hereinafterset forth.
3. Compensation.
(a) The Trust will compensate the custodian for its services rendered
under this Agreement in accordance with the fees set forth in the Fee
Schedule annexed hereto as Schedule A and incorporated herein for the
existing Series. Such Fee Schedule does not include out-of-pocket
disbursements of the Custodian for which the Custodian shall be
entitled to xxxx separately. Out-of-pocket disbursements shall
include, but shall not be limited to, the items specified in the
Schedule of Out-of-Pocket charges annexed hereto as Schedule B and
incorporated herein. Schedule B may be modified by the Custodian upon
not less than thirty days prior written notice to the Trust.
(b) The parties hereto will agree upon the compensation for acting as
Custodian for any Series hereafter established and designated, and at
the time that the Custodian commences serving as such for said
Series, such agreement shall be reflected in a Fee Schedule for that
Series, dated and signed by an officer of each party hereto, which
shall be attached to Schedule A of this Agreement.
(c) Any compensation agreed to hereunder may be adjusted from time to
time by attaching to Schedule A of this Agreement of revised Fee
Schedule, dated and signed by an Authorized Officer of each party
hereto.
(d) The Custodian will xxxx each Series as soon as practicable after the
end of each calendar month, and said xxxxxxxx will be detailed in
accordance with the Fee Schedule for each Series. The Trust will
promptly pay to the Custodian the amount of such billing.
4. Custody of Cash and Securities.
(a) Receipt and Holding of Assets. The Trust will deliver or cause to
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be delivered to the Custodian all Securities and moneys owned by it
at any time during the period of this Agreement and shall specify
the Series to which the Securities and moneys are to be specifically
allocated. The Custodian shall keep and maintain the assets of each
Series separate and apart, including separate identification of
Securities held in the Book-Entry System. The Custodian will not
be responsible for such Securities and moneys until actually received
by it. The Trust shall instruct the Custodian from time to time in
its sole discretion, by means of Written Instructions, or, in
connection with the purchase or sale of Money Market Securities, by
means of Oral Instructions or Written Instructions, as to the manner
in which and in what amounts Securities and moneys of a Series
are to be deposited on behalf of such Series in the Book-Entry System
or the Depository and specifically allocated on the books of the
Custodian to such Series; provided, however, that prior to the
initial deposit of Securities of a Series in the Book-Entry System or
the Depository, the Custodian shall have received Written
Instructions specifically approving such deposits by the Custodian in
the Book-Entry System or the Depository.
(b) Accounts and Disbursements. The Custodian shall establish and
maintain a separate account for each Series and shall credit to the
separate account for each Series all moneys received by it for the
account of such Series and shall disburse the same only:
1. In payment for Securities purchased for such Series, as provided
in Section 5 hereof;
2. In payment of dividends or distributions with respect to the
Shares of such Series, as provided in Section 7 hereof;
3. In payment of original issue or other taxes with respect to the
Shares of such Series, as provided in Section 8 hereof;
4. In payment for Shares which have been redeemed by such Series,
as provided in Section 8 hereof;
5. Pursuant to Written Instructions, or with respect to Money
Market Securities, Oral Instructions or Written Instructions,
setting forth the name of such Series, the name and address of
the person to whom the payment is to be made, the amount to be
paid and the purpose for which payment is to be made; or
6. In payment of fees and in reimbursement of the expenses
and liabilities of the Custodian attributable to such Series,
as provided in Section 11(h) hereof.
(c) Confirmation and Statements.
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Promptly after the close of business on each day, the Custodian shall
furnish the Trust with confirmations and a summary of all transfers
to or from the account of each Series during said day. Where
securities purchased by a Series are in a fungible bulk of
securities registered in the name of the Custodian (or its nominee)
or shown on the Custodian's account on the books of the Depository
or the Book-Entry System, the Custodian shall by book entry or
otherwise identify the quantity of those securities belonging to
such Series. At lease monthly, the Custodian shall furnish the
Trust with a detailed statement of the Securities and moneys held
for each Series under this Agreement.
(d) Registration of Securities and Physical Separation.
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All Securities held for a Series which are issued or issuable only
in bearer form, except such Securities as are held in the Book-Entry
System, shall be held by the Custodian in that form; all other
Securities held for a Series may be registered in the name of that
Series, in the name of any duly appointed registered nominee of
the custodian as the Custodian may from time to time determine, or
in the name of the Book-Entry System or the Depository or their
successor or successors, or their nominee or nominees. The Trust
reserves the right to instruct the Custodian as to the method of
registration and safekeeping of the Securities of each Series.
The Trust agrees to furnish to the Custodian appropriate instruments
to enable the Custodian to hold or deliver in proper form for
transfer, or to register in the name of its registered nominee
or in the name of the Book-Entry System or the Depository, any
Securities which it may hold for the account of a Series and which
may from time to time be registered in the name of a Series. The
Custodian shall hold all such Securities specifically allocated to a
Series which are not held in the Book-Entry System or the Depository
in a separate account for such Series in the name of such Series
physically segregated at all times from those of any other person or
persons.
(e) Collection of Income and Other Matters Affecting Securities. Unless
otherwise instructed to the contrary by Written Instructions, the
Custodian by itself, or through the use of the Book-Entry System or
the Depository with respect to Securities therein deposited, shall
with respect to all Securities held for a Series in accordance with
this Agreement:
1. Collect all income due or payable;
2. Present for payment and collect the amount payable upon all
Securities which may mature or be called, redeemed or retired,
or otherwise become payable. Notwithstanding the foregoing,
the Custodian shall have no responsibility to the Trust or a
Series for monitoring or ascertaining of any call, redemption
or retirement date with respect to put bonds which are owned by
a Series and held by the Custodian or its nominee. Nor shall
the Custodian have any responsibility or liability to the
Trust or a Series for any loss by a Series for any missed
payment or other default resulting therefrom unless the
Custodian received timely notification from the Trust or the
Series specifying the time, place and manner for the presentment
of such put bond owned by a Series and held by the Custodian or
its nominee. The Custodian shall not be responsible and
assumes no liability to the Trust or a Series for the accuracy
or completeness of any notification the Custodian shall provide
to the Trust or a Series with respect to put bonds;
3. Surrender Securities in temporary form for definitive
Securities;
4. Execute any necessary declarations or certificates of ownership
under the Federal income tax laws or the laws or regulations of
any other taxing authority now or hereafter in effect; and
5. Hold directly, or through the Book-Entry System or the
Depository with respect to Securities therein deposited, for the
account of each Series all rights and other Securities issued
with respect to any Securities held by the Custodian hereunder
for such Series.
(f) Delivery of Securities and Evidence of Authority. Upon receipt of
Written Instructions and not otherwise, except for subparagraphs 5,
6, 7 and 8 which may be effected by Oral or Written Instructions, the
Custodian, directly or through the use of the Book-Entry System or
the Depository, shall: 1. Execute and deliver or cause to be executed
and delivered to such persons as may be designated in such Written
Instructions, proxies, consents, authorizations, and any other
instruments whereby the authority of the Trust as owner of any
Securities may be exercised;
2. Deliver or cause to be delivered any Securities held for a
Series in exchange for other Securities or cash issued or paid
in connection with the liquidation, reorganization, refinancing,
merger, consolidation or recapitalization of any corporation, or
the exercise of any conversion privilege;
3. Deliver or cause to be delivered any Securities held for a
Series to any protective committee, reorganization committee or
other person in connection with the reorganization, refinancing,
merger, consolidation or recapitalization or sale of assets of
any corporation, and receive and hold under the terms of this
Agreement in the separate account for each Series such
certificates of deposit, interim receipts or other instruments
or documents as may be issued to it to evidence such delivery;
4. Make or cause to be made such transfers or exchanges of the
assets specifically allocated to the separate account of a
Series and take such other steps as shall be stated in said
Written Instructions to be for the purpose of eccentuating any
duly authorized plan of liquidation, reorganization, merger,
consolidation or recapitalization of the Trust;
5. Deliver Securities owned by any Series upon sale of such
Securities for the account of such Series pursuant to Section 5;
6. Deliver Securities owned by any Series upon the receipt of
payment in connection with any repurchase agreement related to
such Securities entered into by such Series;
7. Deliver Securities owned by any Series to the issuer thereof or
its agent when such Securities are called, redeemed, retired or
otherwise become payable,; provided, however, that in any such
case the cash or other consideration is to be delivered to the
Custodian. Notwithstanding the foregoing, the Custodian shall
have no responsibility to the Trust or to a Series for
monitoring or ascertaining of any call, redemption or retirement
date with respect to put bonds which are owned by a Series and
held by the Custodian or its nominee; nor shall the Custodian
have any responsibility or liability to the Trust or a Series
for any loss by a Series for any missed payment or other
default resulting therefrom unless the Custodian received
timely notification from the Trust or the Series specifying
the time, place and manner for the presentment of such put
bond owned by a Series and held by the Custodian or its nominee.
The Custodian shall not be responsible and assumes no liability
to the Trust or a Series for the accuracy or completeness of
any notification the Custodian may furnish to the Trust or the
Series with respect to put bonds;
8. Deliver Securities owned by any Series for delivery in
connection with any loans of securities made by such Series but
only against receipt of adequate collateral as agreed upon from
time to time by the Custodian and the Trust which may be in any
form permitted under the 1940 Act or any interpretations thereof
issued by the Securities and Exchange Commission or its staff;
9. Deliver Securities owned by any Series for delivery as security
in connection with any borrowings by such Series requiring a
pledge of Series assets, but only against receipt of amounts
borrowed;
10. Deliver Securities owned by any Series upon receipt of
instructions from such Series for delivery to the Transfer Agent
or to the holders of Shares of such Series in connection with
distributions in kind, as may be described from time to time in
the Series' Prospectus, in satisfaction of requests by holders
of Shares for repurchase or redemption; and
11. Deliver Securities owned by any Series for any other proper
business purpose, but only upon receipt of, in addition to
Written Instructions, a certified copy of a resolution of the
Board of Trustees signed by an Authorized Person and certified
by the Secretary or Assistant Secretary of the Trust, specifying
the Securities to be delivered, setting forth the purpose for
which such delivery is to be made, declaring such purpose to be
a proper business purpose, and naming the person or persons to
whom delivery of such Securities shall be made.
(g) Endorsement and Collection of Checks, Etc. The Custodian is hereby
authorized to endorse and collect all checks, drafts or other orders
for the payment of money received by the Custodian for the account of
a Series.
5. Purchase and Sale of Investments of the Series.
(a) Promptly after each purchase of Securities for a Series, the Trus
shall deliver to the Custodian (i) with respect to each purchase of
Securities which are not Money Market Securities, Written
Instructions, and (ii) with respect to each purchase of Money
Market Securities, either Written Instructions or Oral Instructions,
in either case specifying with respect to each purchase: (1) the
name of the Series to which such Securities are to be specifically
allocated; (2) the name of the issuer and the title of the
Securities; (3) the number of shares or the principal amount
purchased and accrued interest, if any; (4) the date of purchase and
settlement; (5) the purchase price per unit; (6) the total amount
payable upon such purchase; (7) the name of the person from whom
or the broker through whom the purchase was made, if any; (8) whether
or not such purchase is to be settled through the Book-Entry System
or the Depository; and (9) whether the Securities purchased are to
be deposited in the Book-Entry System or the Depository. The
Custodian shall receive all Securities purchased by or for a Series
and upon receipt of such Securities shall pay out of the moneys
held for the account of such Series the total amount payable upon
such purchase, provided that the same conforms to the total amount
payable as set forth in such Written or Oral Instructions.
(b) Promptly after each sale of Securities of a Series, the Trust shall
deliver to the Custodian (i) with respect to each sale of Securities
which are not Money Market Securities, Written Instructions, and
(ii) with respect to each sale of Money Market Securities, either
Written or Oral Instructions, in either case specifying with
respect to such sale: (1) the name of the Series to which the
Securities sold were specifically allocated; (2) the name of the
issuer and the title of the Securities; (3) the number of shares or
principal amount sold, and accrued interest, if any; (4) the date
of sale; (5) the sale price per unit; (6) the total amount payable
to the Series upon such sale; (7) the name of the broker through
whom or the person to whom the sale was made; and (8) whether or not
such sale is to be settled through the Book-Entry System or the
Depository. The Custodian shall deliver or cause to be delivered
the Securities to the broker or other person designated by the
Trust upon receipt of the total amount payable to such Series upon
such sale, provided that the same conforms to the total amount
payable to such Series as set forth in such Written or such Oral
Instructions. Subject to the foregoing, the Custodian may accept
payment in such form as shall be satisfactory to it, and may
deliver Securities and arrange for payment in accordance with the
customs prevailing among dealers in Securities.
6. Lending of Securities.
If any Series is permitted as disclosed in its current Prospectus or
Statement of Additional Information to lend Securities specifically allocated to
that Series, within 24 hours after each loan of Securities, the Trust shall
deliver to the Custodian Written Instructions specifying with respect to each
such loan: (a) the Series to which the loaned Securities are specifically
allocated; (b) the name of the issuer and the title fo the Securities; (c) the
number of shares or the principal amount loaned; (d) the date of loan and
delivery; (e) the total amount to be delivered to the Custodian, and
specifically allocated to such Series against the loan of the Securities,
including the amount of cash collateral and the premium, if any, separately
identified; (f) the name of the broker, dealer or financial institutional to
which the loan was made; and (g) whether the Securities loaned are to be
delivered through the Book-Entry System or the Depository.
Promptly after each termination of a loan of Securities specifically
allocated to a Series, the Trust shall deliver to the Custodian Written
Instructions specifying with respect to each such loan termination and return of
Securities: (a) the name of the Series to which such loaned Securities are
specifically allocated; (b) the name of the issuer and the title of the
Securities to be returned; (c) the number of shares or the principal amount to
be returned; (d) the date of termination; (e) the total amount to be delivered
by the Custodian (including the cash collateral for such Securities minus any
offsetting credits as described in said Written Instructions); (f) the name fo
the broker, dealer or financial institution from which the Securities will be
returned; and (g) whether such return is to be effected through the Book-Entry
System or the Depository. The Custodian shall receive all Securities returned
from the broker, dealer or financial institution to which such Securities were
loaned and upon receipt thereof shall pay, out of the moneys specifically
allocated to such Series, the total amount payable upon such return of
Securities as set forth in the Written Instructions. Securities returned to the
Custodian shall be held as they were prior to such loan.
7. Payment of Dividends or Distributions.
(a) The Trust shall furnish to the Custodian the resolution of the
Board of Trustees of the Trust certified by the Secretary of
Assistant Secretary (i) authorizing the declaration of dividends or
distribution with respect to a Series on a specified periodic basis
and authorizing the Custodian to rely on Oral or Written
Instructions specifying the date of the declaration of such
dividend or distribution, the date of payment thereof, the record
date as of which shareholders entitled to payment shall be
determined, the amount payable per share to the shareholders of
record as of the record date and the total amount payable to the
Transfer Agent on the payment date, or (ii) setting forth the date
of declaration of any dividend or distribution by a Series, the date
of payment thereof, the record date as of which shareholders
entitled to payment shall be determined, the amount payable per share
to the shareholders of record as of the record date and the total
amount payable to the Transfer Agent on the payment date.
(b) Upon the payment date specified in such resolution, Oral
Instructions, or Written Instructions, as the case may be, the
Custodian shall pay out the moneys specifically allocated to and held
for the account of the appropriate Series the total amount payable to
the Transfer Agent of the Trust.
8. Sale and Redemption of Shares of a Series.
(a) Whenever the Trust shall sell any Shares of a Series, the Trust shall
deliver or cause to be delivered to the Custodian Written
Instructions duly specifying:
1. The name of the Series whose Shares were sold;
2. The number of Shares sold, trade date, and price; and
3. The amount of money to be received by the Custodian for the
sale of such Shares and specifically allocated to such Series.
(b) Upon receipt of such money from the Transfer Agent, the Custodian
shall credit such money to the separate account of the Series
specified in subparagraph (1) of paragraph (a) of this Section 8.
(c) Upon issuance of any Shares of a Series in accordance with the
foregoing provisions of this Section 8, the Custodian shall pay, out
of the moneys specifically allocated and held for the account of such
Series, all original issue or other taxes required to be paid in
connection with such issuance upon the receipt of Written
Instructions specifying the amount to be paid.
(d) Except as provided hereafter, whenever any Shares of a Series are
redeemed, the Trust shall cause the Transfer Agent to promptly
furnish the Custodian Written Instructions, specifying:
1. The name of the Series whose Shares were redeemed;
2. The number of Shares redeemed; and
3. The amount to be paid for the Shares redeemed.
The Custodian understands that the information contained in such
Written Instructions will be derived from the redemption of Shares as
reported to the Trust by the Transfer Agent.
(e) Upon receipt from the Transfer Agent of advice setting forth the
number of Shares of a Series received by the Transfer Agent for
redemption and that such Shares are valid and in good form for
redemption, the Custodian shall make payment to the Transfer Agent
out of the moneys specifically allocated to and held for the account
of the Series specified in subparagraph (1) of paragraph (d) of this
Section 8 of the total amount specified in Written Instructions
issued pursuant to paragraph (d) of this Section 8.
(f) Notwithstanding the above provisions regarding the redemption of
Shares, whenever such Shares are redeemed pursuant to any check
redemption privilege which may from time to time be offered by the
Trust, the Custodian, unless otherwise instructed by Written
Instructions shall, upon receipt of advice from the Trust or its
agent stating that the redemption is in good form for redemption in
accordance with the check redemption procedure, honor the check
presented as part of such check redemption privilege out of the
moneys specifically allocated to the Trust in such advice for such
purpose.
9. Indebtedness.
(a) The Trust will cause to be delivered to the Custodian by any bank
(excluding the Custodian) from which the Trust borrows money for
temporary administrative or emergency purpose using Securities
as collateral for such borrowings, a notice or undertaking in the
form currently employed by any such bank setting forth the amount
which such bank will loan to the Trust against delivery of a stated
amount of collateral. The Trust shall promptly deliver to the
Custodian Written or Oral Instructions stating with respect to each
such borrowing: (1) the name of the Series for which the borrowing
is to be made; (2) the name of the bank; (3) the amount and terms
of the borrowing, which may be set forth by incorporating by
reference an attached promissory note, duly endorsed by the Trust,
or other loan agreement; (4) the time and date, if known, on which
the loan is to be entered into (the "borrowing date"); (5) the date
on which the loan becomes due and payable; (6) the total amount
payable to the Trust for the separate account of the Series on the
borrowing date; (7) the market value of Securities to be delivered
as collateral for such loan, including the name of the issuer,
the total and the number of shares or the principal amount of any
particular Securities; (8) whether the Custodian is to deliver such
collateral through the Book-Entry System or the Depository; and
(9) a statement that such loan is in conformance with the 1940 Act
and the Series' Prospectus.
(b) Upon receipt of the Written or Oral Instructions referred to in
subparagraph (a) above, the Custodian shall deliver on the borrowing
date the specified collateral and the executed promissory note, if
any, against delivery by the lending bank of the total amount of the
loan payable, provided that the same conforms to the total amount
payable as set forth in the Written or Oral Instructions. The
Custodian may, at the option of the lending bank, keep such
collateral in its possession, but such collateral shall be subject
to all rights therein given the lending bank by virtue of any
promissory note or loan agreement. The Custodian shall deliver as
additional collateral in the manner directed by the Trust from time
to time such Securities specifically allocated to such Series as
may be specified in Written or Oral Instructions to collateralize
further any transaction described in this Section 9. The Trust shall
cause all Securities released from collateral status to be returned
directly to the Custodian, and the Custodian shall receive from time
to time such return of collateral as may be tendered to it. In the
event that the Trust fails to specify in Written or Oral Instructions
all of the information required by this Section 9, the Custodian
shall not be under any obligation to deliver any Securities.
Collateral returned to the Custodian shall be held hereunder as
it was prior to being used as collateral.
10. Persons Having Access to Assets of the Series.
(a) No Trustee, officer, employee or agent of the Trust, and no officer,
director, employee or agent of the Adviser shall have physical access
to the assets of the Trust held by the Custodian or be authorized or
permitted to withdraw any investments of the Trust, nor shall the
Custodian deliver any assets of the Trust to any such person. No
officer, director, employee or agent of the Custodian who holds any
similar position with the Trust, the Adviser or the Administrator
shall have access to the assets of the Trust.
(b) The individual employees of the Custodian duly authorized by the
Board of Directors of the Custodian to have access to the assets of
the Trust are listed in the certification annexed hereto as Appendix
C. The Custodian shall advise the Trust of any change in the
individuals authorized to have access to the assets of the Trust by
written notice to the Trust accompanied by a certified copy of the
authorizing resolution of the Custodian's Board of Directors
approving such change.
(c) Nothing in this Section 10 shall prohibit any officer, employee or
agent of the Trust, or any officer, director, employee or agent of
the Adviser, from giving Oral Instructions or Written Instructions to
the Custodian so long as it does not result in delivery of or access
to assets of the Trust prohibited by paragraph (a) of this Section
10.
11. Concerning the Custodian.
(a) Standard of Conduct. Except as otherwise provided herein, neither
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the Custodian nor its nominee shall be liable for any loss or
damage, including reasonable counsel fees, resulting from its
action or omission to act or otherwise, except for any such loss or
damage arising out of its own negligence or willful misconduct.
The Custodian may, with respect to questions of law, apply for
and obtain the advice and opinion of counsel to the Trust at the
expense of the TRust, or of its own counsel, at the expense of the
Trust, and shall be fully protected with respect to anything done
or omitted by it in good faith in conformity with such advice or
opinion; provided, however, that if such reliance involves a
potential material loss to the Trust, the Custodian will advise
the Trust of any such actions to be taken in accordance with advice
of counsel to the Custodian. The Custodian shall be liable to the
Trust for any loss or damage resulting from the use of the Book-Entry
System or the Depository arising by reason of any negligence,
misfeasance or misconduct on the part of the Custodian or any of its
employees or agents.
(b) Limit of Duties. Without limiting the generality of the foregoing,
the 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 any
Series, the legality of the purchase thereof, or the propriety
of the amount paid therefor;
2. The legality of the sale of any Securities by any Series, or
the propriety of the amount for which the same are sold;
3. The legality of the issue or sale of any Shares, or the
sufficiency of the amount to be received therefor;
4. The legality of the redemption of any Shares, or he propriety
of the amount to be paid therefor;
5. The legality of the declaration or payment of any dividend or
other distribution of any Series;
6. The legality of any borrowing for temporary or emergency
administrative purposes.
(c) No Liability Until Receipt. The Custodian shall not be liable for, or
considered to be the Custodian of, any money, whether or not
represented by any check, draft, or other instrument for the payment
of money, received by it on behalf of any Series until the Custodian
actually receives and collects such money directly or by the final
crediting of the account representing the Trust's interest in the
Book-Entry System or the Depository.
(d) Collection Where Payment Refused. The Custodian shall not be under
any duty or obligation to take action to effect collection of any
amount, if the Securities upon which such amount is payable are in
default, of if payment is refused after due demand or presentation,
unless and until (a) it shall be directed to take such action by
Written Instructions and (b) it shall be assured to its satisfaction
of reimbursement of its costs and expenses in connection with any
such action.
(e) Appointment of Agents and Sub-Custodians. The Custodian may appoint
one or more banking institutions, including but not limited to
banking institutions located in foreign countries, to act as
Depository or Depositories or as Sub-Custodian or as Sub-Custodians
of Securities and moneys at any time owned by any Series, upon terms
and conditions specified in Written Instructions. The Custodian shall
use reasonable care in selecting a Depository and/or Sub-Custodian
located in a country other than the United States ("Foreign
Sub-Custodian"), and shall oversee the maintenance of any Securities
or moneys of the Trust by any Foreign Sub-Custodian.
(f) No Duty to Ascertain Authority. The Custodian shall not be under any
duty or obligation to ascertain whether any Securities at any time
delivered to or held by it for the Trust and specifically allocated
to a Series are such as may properly be held by the Series and
specifically allocated to such Series under the provisions of the
Declaration of Trust and the Series' Prospectus.
(g) Compensation of the Custodians. The Custodian shall be entitled to
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receive, and the Trust agrees to pay to the Custodian, such
compensation as may be agreed upon from time to time between the
Custodian and the Trust. The Custodian may charge against any
money specifically allocated to a Series such compensation and any
expenses incurred by the Custodian in the performance of its duties
pursuant to such agreement with respect to such Series. The
Custodian shall also be entitled to charge against any money held by
it and specifically allocated to a Series the amount of any loss,
damage, liability or expense incurred with respect to such
Series, including counsel fees, for which it shall be entitled to
reimbursement under the provision of this Agreement.
The expenses which the Custodian may charge against such account
include, but are not limited to, the expenses of Sub-Custodians and
foreign branches of the Custodian incurred in settling transactions
outside of Boston, Massachusetts or New York City, New York involving
the purchase and sale of Securities of any Series.
(h) Reliance on Certificates and Instructions. The Custodian shall
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be entitled to rely upon any Written Instructions or Oral
Instructions actually received by the Custodian pursuant to the
applicable Sections of this Agreement and reasonably believed by
the Custodian to be genuine and to be given by an Authorized Person.
The Trust agrees to forward to the Custodian Written Instructions
from an Authorized Person confirming such Oral Instructions in such
manner so that such Written Instructions are received by the
Custodian, whether by hand delivery, telex or otherwise, by the
close of business on the same day that such Oral Instructions are
given to the Custodian. The Trust agrees that the fact that such
confirming instructions are not received by the Custodian shall
in no way affect the validity of the transactions or enforceability
of the transactions hereby authorized by the Trust. The Trust
agrees that the Custodian shall incur no liability to the Trust in
acting upon Oral Instructions given to the Custodian hereunder
concerning such transactions provided such instructions reasonably
appear to have been received from a duly Authorized Person.
(i) Inspection of Books and Records. The books and records of the
Custodian shall be open to inspection and audit at reasonable times
by officers and auditors employed by the Trust and by employees of
the Securities and Exchange Commission.
The Custodian shall provide the Trust with any report obtained by the
Custodian on the system of internal accounting control of the Book-Entry System
or the Depository and with such reports on its own systems of internal
accounting control as the Trust may reasonably request from time to time.
12. Term and Termination.
(a) This Agreement shall become effective on the date first set forth
above (the "Effective Date") and shall continue in effect thereafter
as the parties may mutually agree.
(b) Either of the parties hereto may terminate this Agreement with
respect to any Series by giving to the other party a notice in
writing specifying the date of such termination, which shall be not
less than 60 days after the date of receipt of such notice. In the
event such notice is given by the Trust, it shall be accompanied
by a certified resolution of the Board of Trustees of the Trust,
electing to terminate this Agreement with respect to any Series
and designating a successor custodian or custodians, which shall
be a person qualified to so act under the 1940 Act. In the event
such notice is given by the Custodian, the Trust shall, on or
before the termination date, deliver to the Custodian a certified
resolution of the Board of Trustees of the Trust, designating a
successor custodian or custodians. In the absence of such designation
by the Trust, the Custodian may designate a successor custodian,
which shall be a person qualified to so act under the 0000 Xxx. If
the Trust fails to designate a successor custodian for any Series,
the Trust shall, upon the date specified in the notice of
termination of this Agreement and upon the delivery by the Custodian
of all Securities (other than Securities held in the Book-Entry
Systems which cannot be delivered to the Trust) and moneys then
owned by such Series, be deemed to be its own custodian and the
Custodian shall thereby be relieved of all duties and
responsibilities pursuant to this Agreement, other than the duty
with respect to Securities held in the Book-Entry System which cannot
be delivered to the Trust.
(c) Upon the date set forth in such notice under paragraph (b) of this
Section 12, this Agreement shall terminate to the extent specified in
such notice, and the Custodian shall upon receipt of a notice of
acceptance by the successor custodian on that date deliver directly
to the successor custodian all Securities and moneys then held by the
Custodian and specifically allocated to the Series or Series
specified, after deducting all fees, expenses and other amounts for
the payment or reimbursement of which it shall then be entitled with
respect to such Series or Series.
13. Miscellaneous.
(a) Annexed hereto as Appendix A is a certification signed by two of
the present Trustees of the Trust setting forth the names and the
signatures of the present Authorized Persons. The Trust agrees
to furnish to the Custodian a new certification in similar form in
the event that any such present Authorized Person ceases to be
such an Authorized Person or in the event that other or additional
Authorized Persons are elected or appointed. Until such new
certification shall be received, the Custodian shall be fully
protected in acting under the provisions of this Agreement
upon Oral Instructions or signatures of the present Authorized
Persons as set forth in the last delivered certification.
(b) Annexed hereto as Appendix B is a certification signed by two of the
present Trustees of the Trust setting forth the names and the
signatures of the present Trustees of the Trust. The Trust agrees to
furnish to the Custodian a new certification in similar form in the
event any such present Trustee ceases to be a Trustee of the Trust or
in the event that other or additional Trustees are elected or
appointed. Until such new certification shall be received, the
Custodian shall be fully protected in acting under the provisions of
this Agreement upon the signature of the officers as set forth in the
last delivered certification.
(c) Any notice or other instrument in writing, authorized or required by
this Agreement to be given to the Custodian, shall be sufficiently
given if addressed to the Custodian and mailed or delivered to it at
its offices at Xxx Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 or at
such other place as the Custodian may from time to time designate in
writing.
(d) Any notice or other instrument in writing, authorized or required by
this Agreement to be given to the Trust, shall be sufficiently given
if addressed to the Trust and mailed or delivered to it at its
offices at One Financial Center, Xxxxxx, Xxxxxxxxxxxxx 00000 or at
such other place as the Trust may from time to time designate in
writing.
(e) This Agreement may not be amended or modified in any manner except by
a written agreement executed by both parties with the same formality
as this Agreement, and as may be permitted or required by the 1940
Act.
(f) This Agreement shall extend to and shall be binding upon the parties
hereto, and their respective successors and assigns; provided,
however, that this Agreement shall not be assignable by the Trust
without the written consent of the Custodian, or by the Custodian
without the written consent of the Trust authorized or approved by a
resolution of the Board of Trustees of the Trust, and any attempted
assignment without such written consent shall be null and void.
(g) This Agreement shall be construed in accordance with the laws of the
Commonwealth of Massachusetts.
(h) It is expressly agreed to that the obligations of the Trust hereunder
shall not be binding upon any of the Trustees, shareholders,
nominees, officers, agents, or employees of the Trust, personally,
but bind only the trust property of the Trust, as provided in the
Declaration of Trust of the Trust. The execution and delivery of
this Agreement have been authorized by the Trustees of the Trust
and signed by an authorized officer of the Trust, acting as such,
and neither such authorization by such Trustees nor such execution
and delivery by such officer shall be deemed to have been made
by any of them individually or to impose any liability on any of
them personally, but shall bind only the trust property of the
Trust as provided in its Declaration of Trust.
(i) The captions of 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.
(j) This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original, but such counterparts shall,
together, constitute only one instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
executed by their respective officers thereunder duly authorized as of the day
and year first above written.
COLONIAL NEWPORT GREATER CHINA FUND
By:
Date:
Agreed and Accepted By:
CUSTODIAN
By:
Date:
