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EXHIBIT 99.B8(a).
CUSTODY AGREEMENT
AGREEMENT, made the ____ day of _______, 19__ by and between Xxxxxx
Aggressive Growth Fund, a Massachusetts business trust having its principal
place of business at 000 Xxxxx Xxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000
("Fund") and Investors Fiduciary Trust Company, a trust company organized and
existing under the laws of Missouri, having its principal place of business at
Kansas City, Missouri ("Custodian").
WHEREAS, Fund wants to appoint Investors Fiduciary Trust Company as
Custodian to have custody of a portion of Fund's portfolio securities and
monies pursuant to this Agreement; and, for purposes related to its foreign
investments held outside the United States, Fund wants another custodian to
have custody of the remainder of Fund's portfolio securities and monies
pursuant to a separate agreement; and
WHEREAS, Investors Fiduciary Trust Company wants 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 Investors Fiduciary Trust Company as
Custodian of Fund which is to include:
A. Custody of the securities and monies at any time owned by Fund
and received by Custodian; and
B. Performing certain accounting and record keeping functions
relating to its function as Custodian for Fund and each of its Portfolios.
2. DELIVERY OF CORPORATE DOCUMENTS.
Fund has delivered or will deliver to Custodian prior to the effective
date of this Agreement, copies of the following documents and all
amendments or supplements thereto, properly certified or authenticated:
A. Resolutions of the Board of Trustees of Fund appointing
Investors Fiduciary Trust Company as Custodian hereunder and approving the
form of this Agreement; and
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B. Resolutions of the Board of Trustees of Fund authorizing certain
persons to give instructions on behalf of Fund to Custodian and
authorizing Custodian to rely upon written instructions over their
signatures.
3. DUTIES AND RESPONSIBILITIES OF CUSTODIAN.
A. Delivery of Assets
All Fund's securities and monies, except as permitted by the Investment
Company Act of 1940 ("1940 Act"), will be delivered either to Custodian or
to The Chase Manhattan Bank, pursuant to a separate custody agreement.
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, portfolio securities acquired by it and monies
then owned by it except as permitted by the 1940 Act 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. All
securities so delivered to Custodian (other than bearer securities) shall
be registered in the name of Fund or its nominee, or of a nominee of
Custodian, or shall be properly endorsed and in form for transfer
satisfactory to Custodian.
B. Safekeeping
Custodian will receive delivery of and keep safely the assets of Fund
delivered to it from time to time. Custodian will not deliver 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 this
Agreement. Custodian shall be responsible only for the monies and
securities of Fund held directly by it or its nominees or sub-custodian
under this Agreement; provided that Custodian's responsibility for any
sub-custodian appointed at the Fund's direction for purposes of (i)
effecting third-party repurchase transactions with banks, brokers,
dealers, or other entities through the use of a common custodian or
sub-custodian; or (ii) providing depository and clearing agency services
with respect to certain variable rate demand note securities ("special
sub- custodian") shall be further limited as set forth in this Agreement.
Custodian may participate directly or indirectly through a sub-custodian
in the Depository Trust Company, the Treasury/Federal Reserve Book Entry
System, the Participants Trust Company and any other securities depository
approved by the Board of Trustees of the Fund, subject to compliance with
the provisions of Rule 17f-4 under the 1940 Act including, without
limitation, the
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specific provisions of subsections (a) (1) through (d) (4) thereof.
C. Registration of Securities
Custodian will hold stocks and other registerable portfolio securities of
Fund registered in the name of Fund or in the name of any nominee of
Custodian for whose fidelity and liabilities Custodian shall be fully
responsible, or in street certificate form, so-called, with or without any
indication of fiduciary capacity. Unless otherwise instructed, Custodian
will register all such portfolio securities in the name of its authorized
nominee.
D. Exchange of Securities
Upon receipt of instructions, 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. Withoutinstructions, 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 therefore, 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.
E. Purchases or Sales of Investments of Fund
Fund shall, on each business day on which a purchase or sale of a
portfolio security shall be made by it, deliver to Custodian instructions
which shall specify with respect to each such transaction:
(1) The name of the issuer and description of the security;
(2) The number of shares or the principal amount purchased or sold, and
accrued interest, if any;
(3) The trade date;
(4) The settlement date;
(5) The date when the securities sold were purchased by Fund or other
information identifying the securities sold and to be delivered;
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(6) The price per unit and the brokerage commission, taxes and other
expenses in connection with the transaction;
(7) The total amount payable or receivable upon such transaction; and
(8) The name of the person from whom or the broker or dealer through whom
the transaction was made.
In accordance with such purchase instructions, Custodian shall pay for out
of monies held for the account of Fund, but only insofar as monies are
available therein for such purpose, and receive the portfolio securities
so purchased by or for the account of Fund. Such payment shall be made
only upon receipt by Custodian of the securities so purchased in form for
transfer satisfactory to Custodian.
In accordance with such sales 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, such delivery to be made only upon
receipt of payment therefor in such form as shall be satisfactory to
Custodian, with the understanding that Custodian may deliver or cause to
be delivered securities for payment in accordance with the customs
prevailing among dealers in securities.
F. Purchases or Sales of Options and Futures Transactions
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) Securities 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 opening, exercising, expiring or closing the
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.
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(2) 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
(j) Name and address of the broker or dealer through
whom the sale or purchase was made.
(3) Securities Index Futures Transactions
(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 into this Custody Agreement); and
(f) The name and address of the futures commission merchant through
whom the sale or purchase was made.
(4) Options on Index Futures Contracts
(a) The underlying index futures 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.
G. Securities Pledged to Secure Loans
(1) Upon receipt of instructions, Custodian will release or cause to
be released securities held in custody to the pledgee designated
in such
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instructions by way of pledge or hypothecation to cure 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 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 shall 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.
H. 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 Board of Trustees of Fund.
I. Demand Deposit Account
Custodian will open and maintain a demand deposit account or accounts
in the name of Custodian, 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 account or accounts.
When properly authorized by a resolution of the Board of Trustees of
Fund, Custodian may open and maintain an additional demand deposit account
or accounts in such other banks or trust companies as may be designated in
such resolution, such accounts, however, to be in the name of Custodian
and subject only to its draft or order.
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J. 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 with such income on
the payable date;
(2) execute ownership and other certificates and affidavits for all
federal, state and local tax purposes in connection with the collection of
bond and note coupons; and
(3) take such other action as may be necessary or proper in
connection with:
(a) the collection, receipt and deposit of such income and other
payments, including but not limited to the presentation for payment
of:
(1) all coupons and other income items requiring presentation;
(2) all other securities which may mature or be called, redeemed,
retired or otherwise become payable and regarding which the
Custodian has actual knowledge, or notice of which is contained
in publications of the type to which it normally subscribes for
such purpose; and
(b) the endorsement for collection, in the name of Fund, of all
checks, drafts or other negotiable instruments.
Custodian, however, shall 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
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.
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K. Payment of Dividends and Other Distributions
On the declaration of any dividend or other distribution on the
shares of beneficial interest of any Portfolio ("Portfolio Shares") by the
Board of Trustees of Fund, Fund shall deliver to Custodian instructions
with respect thereto, including a copy of the Resolution of said Board of
Trustees certified by the Secretary or an Assistant Secretary of Fund
wherein there shall be set forth the record date as of which shareholders
are entitled to receive such dividend or distribution, and the amount
payable per share on such dividend or distribution.
On the date specified in such Resolution for the payment of such
dividend or other distribution, Custodian shall 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 Portfolio Shares issued and outstanding on the record date
established by such Resolution.
L. Portfolio Shares Purchased by Fund
Whenever any Portfolio Shares are purchased 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
custody account of Fund and either deposit the same in the account
maintained for the purpose of paying for the purchase of Portfolio Shares
or deliver the same in accordance with such advice.
M. Portfolio Shares Purchased from Fund
Whenever Portfolio 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.
N. Proxies and Notices
Custodian will promptly deliver or mail 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
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deliver or cause its nominee to execute and deliver 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 shall exercise any power inherent in any such securities,
including any power to vote the same, or execute any proxy, power of
attorney, or other similar instrument voting any of such securities, or
give any consent, approval or waiver with respect thereto, or take any
other similar action.
O. 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, variation margin, dividend disbursements, taxes, management fees,
administration-distribution 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.
P. Books, Records and Accounts
Custodian acknowledges that all the records it shall prepare and
maintain pursuant to this Agreement shall be the property of Fund and that
upon request of Fund it shall make Fund's records available to it, along
with such other information and data as are reasonably requested by Fund,
for inspection, audit or copying, or turn said records over to Fund.
Custodian shall, within a reasonable time, render to Fund as of the
close of business on each day, a detailed statement of the amounts
received or paid and of securities received or delivered for the account
of Fund during said day. Custodian shall, 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 shall maintain such books and
records as are necessary to enable it do so and shall permit such persons
as are authorized by Fund, including Fund's independent public
accountants, to examine such records or to confirm the contents of such
records; and, if demanded, shall permit federal and state regulatory
agencies to examine said securities, books and records. Upon the written
instructions of Fund or as demanded by federal or state regulatory
agencies, Custodian shall instruct any sub- custodian to permit such
persons as are authorized by Fund
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to examine the books, records and securities held by such sub-custodian
which relate to Fund.
Q. Appointment of Sub-Custodian
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
sub-custodians as may be approved by resolutions of Fund's Board of
Trustees, evidenced by a copy thereof certified by the Secretary or
Assistant Secretary of Fund. Any sub-custodian must have the
qualifications required for custodians under the 1940 Act unless exempted
therefrom. Any sub-custodian may participate directly or indirectly in
the Depository Trust Company, the Treasury/Reserve Book Entry System, the
Participants Trust Company and any other securities depository approved by
the Board of Trustees of the Fund to the same extent and subject to the
same conditions as provided hereunder. Neither Custodian nor
sub-custodian shall be entitled to reimbursement by Fund for any fees or
expenses of any sub-custodian; provided that Custodian shall not be liable
for, and Fund shall hold Custodian harmless from, the expenses of any
special sub-custodian. The appointment of a sub-custodian shall not
relieve Custodian of any of its obligations hereunder; provided that
Custodian shall be responsible to Fund for any loss, damage, or expense
suffered or incurred by Fund resulting from the actions or omissions of a
special sub-custodian only to the extent the special sub-custodian is
liable to Custodian.
R. Multiple Portfolios
If Fund shall issue shares of more than one Portfolio during the term
hereof, Custodian agrees that all securities and other assets of Fund
shall be segregated by Portfolio and all books and records, account values
or actions shall be maintained, held, made or taken, as the case may be,
separately for each Portfolio.
S. Other Custodian
Pursuant to instructions, Custodian will transmit securities and
moneys of Fund to The Chase Manhattan Bank, as custodian for Fund.
4. INSTRUCTIONS.
A. The term "instructions", as used herein, means written or oral
instructions to Custodian from an authorized person of Fund. Certified
copies of resolutions of the Board of Trustees of Fund naming one or more
persons
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authorized to give instructions in the name and on behalf of Fund may be
received and accepted by Custodian as conclusive evidence of the authority
of any person so to act and may be considered to be in full force and
effect (and Custodian shall be fully protected in acting in reliance
thereon) until receipt by Custodian of notice to the contrary. Unless the
resolution authorizing any person to give instructions specifically
requires that the approval of anyone else shall first have been obtained,
Custodian shall be under no obligation to inquire into the right of the
person giving such instructions to do so. Notwithstanding any of the
foregoing provisions of this Section 4, no authorizations or instructions
received by Custodian from Fund shall be deemed to authorize or permit any
trustee, officer, employee, or agent of Fund to withdraw any of the
securities or monies of Fund upon the mere receipt of instructions from
such trustee, officer, employee or agent.
B. No later than the next business day immediately following each
oral instruction referred to herein, Fund shall give Custodian written
confirmation of each such oral instruction. Either party may
electronically record any oral instruction whether given in person or via
telephone.
5. LIMITATION OF LIABILITY OF CUSTODIAN
A. Custodian shall hold harmless and indemnify Fund from and against
any loss or liability arising out of Custodian's failure to comply with
the terms of this Agreement or arising out of Custodian's negligence,
willful misconduct, or bad faith. Custodian may request and obtain 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.
B. If Fund requires Custodian in any capacity to take, with respect
to any securities, any action which involves the payment of money by it,
or which in Custodian's opinion might make it or its nominee liable for
payment of monies or in any other way, Custodian shall be and be kept
indemnified by Fund in an amount and form satisfactory to Custodian
against any liability on account of such action.
C. Custodian shall be entitled to receive, and Fund agrees to pay
to Custodian, on demand, reimbursement for such cash disbursements, costs
and expenses as may be agreed upon from time to time by Custodian and
Fund.
D. Custodian shall be protected in acting as custodian hereunder
upon any instructions, advice, notice,
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request, consent, certificate or other instrument or paper reasonably
appearing to it to be genuine and to have been properly executed and
shall, unless otherwise specifically provided herein, be entitled to
receive as conclusive proof of any fact or matter required to be
ascertained from Fund hereunder, a certificate signed by Fund's President,
or other officer specifically authorized for such purpose.
E. Without limiting the generality of the foregoing, Custodian
shall be under no duty or obligation to inquire into, and shall not be
liable for:
(1) The validity of the issue of any securities purchased by or
for Fund, the legality of the purchase thereof 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 sales of any securities by or for Fund,
or the propriety of the amount paid therefor;
(3) The legality of the issue or sale of any shares of Fund, or
the sufficiency of the amount to be received therefor;
(4) The legality of the purchase of any shares of Fund, 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 shares of Fund in payment of any
share dividend.
F. Custodian shall not be liable for, or considered to be the
custodian of, any money represented by any check, draft, wire transfer,
clearing house funds, uncollected funds, or instrument for the payment of
money received by it on behalf of Fund, until Custodian actually receives
such money, provided only that it shall advise Fund promptly if it fails
to receive any such money in the ordinary course of business, and use its
best efforts and cooperate with Fund toward the end that such money shall
be received.
G. Subject to the obligations of Custodian under Section 3.B.
hereof, Custodian shall not be responsible for loss occasioned by the
acts, neglects, defaults or insolvency of any broker, bank, trust company,
or any other person with whom Custodian may deal in the absence of negli-
gence, misconduct or bad faith on the part of Custodian.
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H. Custodian or any sub-custodian shall provide Fund for its
approval by its Board of Trustees agreements with banks or trust companies
which will act as sub-custodian for Fund pursuant to this Agreement; and,
as set forth in Section 3.B hereof, Custodian shall be responsible for the
monies and securities of the Fund held by it or its nominees or
sub-custodians under this Agreement, but not for monies and securities of
the Fund held by any special sub-custodian except to the extent the
special sub-custodian is liable to Custodian.
6. COMPENSATION.
Fund shall pay to Custodian such compensation at such times as may from
time to time be agreed upon in writing by Custodian and Fund. Custodian may
charge such compensation against monies held by it for the account of Fund.
Custodian shall also be entitled, notwithstanding the provisions of Sections 5B
or 5C hereof, to charge against any monies held by it for the account of Fund
the amount of any loss, damage, liability or expense for which it shall be
entitled to reimbursement under the provisions of this Agreement. Custodian
shall not be entitled to reimbursement by Fund for any loss or expenses of any
sub- custodian; provided that Custodian shall not be liable for, and Fund shall
hold Custodian harmless from, the expenses of any special sub-custodian.
7. TERMINATION.
Either party to this Agreement may terminate the same by notice in
writing, delivered or mailed, postage prepaid, to the other party hereto and
received not less than sixty (60) days prior to the date upon which such
termination shall take effect. Upon termination of this Agreement, Fund shall
pay to Custodian such compensation for its reimbursable disbursements, costs
and expenses paid or incurred to such date and Fund shall use its best efforts
to obtain a successor custodian. Unless the holders of a majority of the
outstanding shares of Fund vote to have the securities, funds and other
properties held under this Agreement delivered and paid over to some other
person, firm or corporation specified in the vote, having not less than Two
Million Dollars ($2,000,000) aggregate capital, surplus and undivided profits,
as shown by its last published report, and meeting such other qualifications
for custodian as set forth in the Bylaws of Fund, the Board of Trustees of Fund
shall, forthwith upon giving or receiving notice of termination of this
Agreement, appoint as successor custodian a bank or trust company having such
qualifications. Custodian shall, upon termination of this Agreement, deliver
to the successor custodian so specified or appointed, at custodian's office,
all securities then held by Custodian hereunder, duly endorsed and in form for
transfer, and all funds and other properties of Fund deposited with or held by
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Custodian hereunder, and shall cooperate in effecting changes in book-entries
at the Depository Trust Company, the Treasury/Federal Reserve Book-Entry
System, the Participants Trust Company and any other securities depository
holding assets of the Fund. In the event no such vote has been adopted by the
shareholders of Fund and no written order designating a successor custodian
shall have been delivered to Custodian on or before the date when such
termination shall become effective, then Custodian shall 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, if any,
set forth in the Bylaws of Fund and having not less than Two Million Dollars
($2,000,000) aggregate capital, surplus and undivided profits, as shown by its
last published report. Upon either such delivery to a successor custodian,
Custodian shall have no further obligations or liabilities under this
Agreement. Thereafter such bank or trust company shall be the successor
custodian under this Agreement and shall be entitled to reasonable compensation
for its services. In the event that no such successor custodian can be found,
Fund will submit to its shareholders, before permitting delivery of the cash
and securities owned by Fund to anyone other than a successor custodian, the
question of whether Fund shall be liquidated or shall function without a
custodian. Not- withstanding the foregoing requirement as to delivery upon
termination of this Agreement, Custodian may make any other delivery of the
securities, funds and property of Fund which shall be permitted by the 1940 Act
and Fund's Agreement and Declaration of Trust and Bylaws then in effect.
Except as otherwise provided herein, neither this Agreement nor any portion
thereof may be assigned by Custodian without the consent of Fund, authorized or
approved by a resolution of its Board of Trustees.
8. NOTICES.
Notices, requests, instructions and other writings received by Fund at 000
Xxxxx Xxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000 or at such other address as Fund
may have designated by certified resolution of the Board of Trustees to
Custodian and notices, requests, instructions and other writings received by
Custodian at its offices at 00 Xxxx 00xx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000,
or to such other address as it may have designated to Fund in writing, shall be
deemed to have been properly given hereunder.
9. MISCELLANEOUS.
A. This Agreement is executed and delivered in the State of
Missouri and shall be governed by the laws of the State of Missouri
(except as to Section 9.H. hereof which shall be governed in accordance
with the laws of The Commonwealth of Massachusetts).
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B. All the terms and provisions of this Agreement shall be binding
upon, inure to the benefit of, and be enforceable by the respective
successors and assigns of the parties hereto.
C. No provisions of the Agreement may be amended or modified in any
manner except by a written agreement properly authorized and executed by
both parties hereto.
D. The captions in this Agreement are included for convenience of
reference only, and in no way define or delimit any of the provisions
hereof or otherwise affect their construction or effect.
E. This Agreement shall become effective at the close of business
on the date hereof.
F. This Agreement may be executed simultaneously 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.
G. If any part, term or provision of this Agreement is by the
courts held 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.
H. All parties hereto are expressly put on notice of Fund's
Agreement and Declaration of Trust, which is on file with the Secretary of
The Commonwealth of Massachusetts, and the limitation of shareholder and
trustee liability contained therein. This Agreement has been executed by
and on behalf of Fund by its representatives as such representatives and
not individually, and the obligations of Fund hereunder are not binding
upon any of the Trustees, officers or shareholders of Fund individually
but are binding upon only the assets and property of Fund. With respect
to any claim by Custodian for recovery of that portion of the compensation
(or any other liability of Fund arising hereunder) allocated to a
particular Portfolio, whether in accordance with the express terms hereof
or otherwise, Custodian shall have recourse solely against the assets of
that Portfolio to satisfy such claim and shall have no recourse against
the assets of any other Portfolio for such purpose.
I. This Agreement, together with the Fee Schedule, is the entire
contract between the parties relating to the subject matter hereof and
supersedes all prior agreements.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective authorized officers.
XXXXXX AGGRESSIVE GROWTH FUND
By:______________________________
Title:___________________________
Attest:______________________
Title:_______________________
INVESTORS FIDUCIARY TRUST COMPANY
By:______________________________
Title:___________________________
Attest:______________________
Title:_______________________
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