EXHIBIT 8
CUSTODY AGREEMENT
_________________
THIS AGREEMENT made effective as of the 1st day of January,
1997, 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 XXXXXX OMNI INVESTMENT TRUST,
a Massachusetts business trust (the "Fund"), which consists of
separate portfolios represented by separate series of one or more
classes of shares of beneficial interest (referred to herein,
together with any such portfolios hereafter constituted, where
appropriate, individually as a "Portfolio," or collectively as
the "Portfolios,") having its principal office and place of
business at 00 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxxx 00000.
WITNESSETH:
WHEREAS, Fund desires to appoint Investors Fiduciary Trust
Company as Custodian of the securities and monies of each
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 Fund which is to include appointment as custodian of the
securities and monies at any time owned by the Fund, including
all existing and future Portfolios, which are delivered to
Custodian hereunder.
2. DUTIES AND RESPONSIBILITIES OF CUSTODIAN.
________________________________________
A. Delivery of Assets. 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 except
as permitted by the Investment Company Act of 1940 or from
time to time coming into its possession during the term of
this Agreement. Custodian shall have no responsibility or
liability whatsoever for or on account of securities or
monies not so delivered. All securities so delivered to
Custodian (other than bearer securities) shall be registered
in the name of the applicable Portfolio or its nominee, or
of a nominee of Custodian, or shall be properly endorsed and
in form for transfer satisfactory to Custodian.
B. Delivery of Accounts and Records. Fund shall turn
over
________________________________ to Custodian all of
each Portfolio's relevant accounts and records. Custodian
shall be entitled to rely conclusively on the completeness
and correctness of such accounts and records, 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 any portion of such or to provide
any information needed by the Custodian knowledgeably to
perform its function hereunder.
C. Delivery of Assets to Third Parties. Custodian will
___________________________________ receive delivery
of and keep safely the assets of each Portfolio delivered to
it from time to time segregated in a separate account.
Custodian will not deliver, assign, pledge or hypothecate
any such assets to any person except as permitted by the
provisions of this Agreement or any agreement executed by it
according to the terms of Section 2.S of this Agreement.
Upon delivery of any such assets to a subcustodian pursuant
to Section 2.S of this Agreement, Custodian will create and
maintain records identifying those assets which have been
delivered to the subcustodian as belonging to each such
Portfolio. The Custodian is responsible for the securities
and monies of 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 2.S of
this Agreement for which Custodian remains responsible to
the extent provided in Section 2.S of this Agreement.
Custodian may participate directly or indirectly through a
subcustodian in the Depository Trust Company,
Treasury/Federal Reserve Book Entry System or Participant
Trust Company (PTC) or other depository (as such entities
are defined at 17 CFR Section 270.17f-4(b)) (each a
"Depository" and collectively the "Depositories").
D. Registration of Securities. Custodian will hold
stocks
__________________________ and other registerable
portfolio securities of Fund registered in the name of the
applicable Portfolio or in the name of any nominee of
Custodian for whose fidelity and liability Custodian will be
fully responsible, or in street certificate form, so-called
"street-name", with or without any indication of fiduciary
capacity. Unless otherwise instructed, Custodian will
register all such portfolio securities in the name of its
authorized nominee. All securities, and the ownership
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thereof by Fund, which are held by Custodian hereunder,
however, shall at all times be identifiable on the records
of the Custodian. The Fund agrees to hold Custodian and its
nominee harmless for any liability arising solely from
Custodian or its nominee acting as a recordholder of
securities held in custody.
E. Exchange of Securities. Upon receipt of
instructions
______________________ as defined herein in Section
3.A, Custodian will exchange, or cause to be exchanged,
portfolio securities held by it for the Fund for other
securities or cash issued or paid in connection with any
reorganization, recapitalization, merger, consolidation,
split-up of shares, change of par value, conversion or
otherwise, and will deposit any such securities in
accordance with the terms of any reorganization or
protective plan. Without instructions, Custodian is
authorized to exchange securities held by it in temporary
form for securities in definitive form, to effect an
exchange of shares when the par value of the stock is
changed, and, upon receiving payment therefor, to surrender
bonds or other securities held by it at maturity or when
advised of earlier call for redemption, except that
Custodian shall receive instructions prior to surrendering
any convertible security.
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. The name of the Portfolio making such purchase;
2. The name of the issuer and description of the
security;
3. The number of shares or the principal amount
purchased, and accrued interest, if any;
4. The trade date;
5. The settlement date;
6. The purchase price per unit and the brokerage
commission, taxes and other expenses payable in
connection with the purchase;
7. The total amount payable upon such purchase;
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 and/or via a specified Depository.
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In accordance with such instructions, Custodian will pay for
out of monies held for the Portfolio, but only insofar as
monies are available therein for such purpose, and receive
the securities so purchased by or for the Portfolio except
that Custodian or a subcustodian appointed hereunder may in
its sole discretion advance funds for the Portfolio which
may result in an overdraft because the monies held for the
Portfolio 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 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 2.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 of Fund has been made, deliver to
Custodian instructions specifying with respect to each such
sale:
1. The name of the Portfolio making such sale;
2. The name of the issuer and description of the
securities;
3. The number of shares or principal amount sold,
and accrued interest, if any;
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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 Portfolio 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: (a) payment therefor 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 2.S.2 of this Agreement to
make, such delivery upon payment therefor in accordance
with generally accepted local custom and market practice.
H. Purchases or Sales of Security Options, Options on
__________________________________________________
Indices and Security Index Futures Contracts. Fund
____________________________________________ will,
on each business day on which a purchase or sale of the
following options and/or futures shall be made by it,
deliver to Custodian instructions which shall specify with
respect to each such purchase or sale:
1. The name of the Portfolio making such purchase
or sale;
2. In the case of security options:
a. The underlying security;
b. The price at which purchased
or sold;
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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;
j. Name and address of the
broker or dealer through whom the sale or
purchase was made.
3. In the case of 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;
j. The name and address of the
broker or dealer through whom the sale or purchase
was made, or other applicable settlement
instructions.
4. In the case of 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;
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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. In the case of options on index future
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.
I. Securities Pledged or Loaned. If specifically
allowed
____________________________ for in the prospectus
of Fund:
1. Upon receipt of instructions, Custodian will
release or cause to be released securities held in
custody to the pledgee designated in such
instructions by way of pledge or hypothecation to
secure any loan incurred by 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.
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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
Trustees of Fund.
K. Deposit Account. Custodian will open and maintain
one
_______________ or more special purpose deposit
accounts for each Portfolio in the name of Custodian
("Accounts"), subject only to draft or order by Custodian
upon receipt of instructions. Funds received and held for
the account of different Portfolios shall be maintained in
separate Accounts established for each Portfolio. All
monies received by Custodian from or for the Portfolio shall
be deposited in the appropriate Account. Barring events not
in the control of the Custodian such as strikes, lockouts or
labor disputes, riots, war or equipment or transmission
failure or damage, fire, flood, earthquake or other natural
disaster, action or inaction of governmental authority or
other causes beyond its control, at 9:00 a.m., Kansas City
time, on the second business day after deposit of any check
into a Portfolio's Account, Custodian agrees to make Fed
Funds available to such Portfolio in the amount of the
check. Deposits made by Federal Reserve wire will be
available 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
Account of the applicable Portfolio 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, provided that the
Custodian has made reasonable efforts to collect such
uncollected income. If monies are collected after such
reversal, the Custodian will credit the applicable Portfolio
in that amount. Custodian may open and maintain Accounts in
State Street Bank and Trust Company, and in such other banks
or trust companies (including, without limitation,
affiliates of Custodian) as may be designated by
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it and as authorized by the Fund in writing, such Accounts,
however, to be in the name of Custodian and subject only to
its draft or order.
L. Income and other Payments to the Portfolio.
Custodian
__________________________________________ will:
1. Collect, claim and receive and deposit for
the Portfolio 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 applicable Portfolio in accordance with
the schedule attached hereto as Exhibit A. If, for
any reason, a Portfolio is credited with income that
is not subsequently collected, Custodian may reverse
that credited amount provided that the Custodian has
made reasonable efforts to collect such uncollected
income;
2. Execute ownership and other certificates and
affidavits for all federal, state and local tax
purposes in connection with the collection of bond
and note coupons; and
3. Take such other action as may be necessary
or proper in connection with:
a. the collection, receipt and
deposit of such income and other payments,
including but not limited to the
presentation for payment of all coupons and
other income items requiring presentation;
and 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, 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 a Portfolio on the
last trade date prior to the date of expiration of such
rights.
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M. Payment of Dividends and other Distributions. On
the
____________________________________________
declaration of any dividend or other distribution on the
shares of the Fund ("Fund Shares") by the Trustees of Fund,
Fund shall deliver to Custodian instructions with respect
thereto, including such documentation as Custodian deems
necessary, setting forth the record date as of which
shareholders entitled to receive such dividend or other
distribution shall be determined, the date of payment of
such dividend or distribution, and the amount payable per
share on such dividend or distribution. Except if the ex-
dividend date and the reinvestment date of any dividend are
the same, in which case funds shall remain in the Custody
Account, on the date specified in such instructions for the
payment of such dividend or other distribution, Custodian
will pay out of the monies held for the applicable
Portfolio, insofar as the same shall be available for such
purposes, and credit to 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 the applicable
Portfolio and either deposit the same in the account
maintained for the purpose of paying for the repurchase or
redemption of Fund Shares or deliver the same in accordance
with such advice. Custodian shall not have any duty or
responsibility to determine that Fund Shares have been
removed from the proper shareholder account or accounts or
that the proper number of such shares have been cancelled
and removed from the shareholder records.
N. 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
in its capacity as Custodian of the Fund 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.
O. 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
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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
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 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 Portfolio during said day.
Custodian will, from time to time, upon request by Fund,
render a detailed statement of the securities and monies
held for the Portfolios under this Agreement, and Custodian
will maintain such books and records as are necessary to
enable it to do so and will permit such persons as are
authorized by Fund, including Fund's independent public
accountants, access to such records or confirmation of the
contents of such records; and if demanded, will permit
federal and state regulatory agencies to examine the
securities, books and records. Upon the written
instructions of Fund or as demanded by federal or state
regulatory agencies, Custodian will instruct any
subcustodian to give such persons as are authorized by the
Fund, including Fund's independent public accountants,
access to such records or confirmation of the contents of
such records; and if demanded, to permit federal and state
regulatory agencies to examine the books, records and
securities held by subcustodian which relate to Fund.
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X. Xxxxxxxxxxx of Subcustodian.
___________________________
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 (including, without limitation, affiliates
of Custodian) selected by Custodian. Any such
subcustodian selected by the Custodian must have the
qualifications required for custodian under the
Investment Company Act of 1940, as amended.
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
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 4 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 (a) effecting third-
party repurchase transactions with banks, brokers,
dealers, or other entities through the use of a
common custodian or subcustodian, or (b) providing
depository and clearing agency services with respect
to certain variable rate demand note securities, or
(c) 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.
2. Notwithstanding any other provisions of this
Agreement, Fund's foreign securities (as defined in
Rule 17f-5(c)(1) under the Investment Company Act of
1940) and Fund's cash or cash equivalents, in
amounts 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, according to Section 2.S.1;
and thereafter may be transferred to an account
maintained by such subcustodian with an
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eligible foreign custodian, as defined in Rule 17f-
5(c)(2), provided that any such arrangement
involving a foreign custodian shall be in accordance
with the provisions of Rule 17f-5 under the
Investment Company Act of 1940 as that Rule may be
amended from time to time. The Fund shall be
provided the contract with the domestic subcustodian
who shall contract with the eligible foreign
subcustodians. The Custodian shall be responsible
for the monies and securities of the Fund held by
eligible foreign subcustodians to the extent the
domestic subcustodian with which the Custodian
contracts is responsible to Custodian.
T. 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 having jurisdiction over the Fund or Custodian, in any
requested review of Fund's accounts and records but shall be
reimbursed for all expenses and employee time invested in
any such review outside of routine and normal periodic
reviews.
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 by Fund, or directed by Fund,
conflicts with or violates any requirements of its
prospectus, Trust Instrument, Bylaws, or any rule or
regulation of any regulatory body or governmental agency.
Fund will be responsible to notify Custodian of any changes
in statutes, regulations, rules or policies not specifically
governing custodians or banks which might necessitate
changes in Custodian's responsibilities or procedures.
V. Advances. In the event Custodian or any
subcustodian
________ shall, in its sole discretion, advance cash
or securities for any purpose (including but not limited to
securities settlements, purchase or sale of foreign exchange
or foreign exchange contracts and assumed settlement) for
the benefit of any Portfolio, the advance shall be payable
by the Fund on demand. Any such cash advance shall be
subject to an overdraft charge at the rate set forth in the
then-current fee schedule from the date advanced until the
date repaid. As security for each such advance, Fund hereby
grants Custodian and such subcustodian
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a lien on and security interest in all property at any time
held for the account of the applicable Portfolio, including
without limitation all assets acquired with the amount
advanced. Should the Fund fail to promptly repay the
advance, the Custodian and such subcustodian shall be
entitled to utilize available cash and to dispose of such
Portfolio's assets pursuant to applicable law to the extent
necessary to obtain reimbursement of the amount advanced and
any 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.
3. INSTRUCTIONS.
____________
A. The term "instructions", as used herein, means
written (including telecopied or telexed) or oral
instructions to Custodian from a designated representative
of Fund. Certified copies of resolutions of the Trustees of
Fund naming one or more designated representatives to give
instructions in the name and on behalf of Fund, may be
received and accepted from time to time by Custodian as
conclusive evidence of the authority of any designated
representative to act for Fund and may be considered to be
in full force and effect (and Custodian will be fully
protected in acting in reliance thereon) until receipt by
Custodian of notice to the contrary. Unless the resolution
delegating authority to any person to give instructions
specifically requires that the approval of anyone else will
first have been obtained, Custodian will be under no
obligation to inquire into the right of the person giving
such instructions to do so. Notwithstanding any of the
foregoing provisions of this Section 3, no authorizations or
instructions received by Custodian from Fund will be deemed
to authorize or permit any trustee, officer, employee, or
agent of Fund to withdraw any of the securities or similar
investments of Fund upon the mere receipt of such
authorization or instructions from such trustee, officer,
employee or agent. Notwithstanding any other provision of
this Agreement, Custodian, upon receipt (and acknowledgment
if required at the
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discretion of Custodian) of the instructions of a designated
representative of Fund will undertake to deliver for Fund's
account monies, (provided such monies are on hand or
available) in connection with Fund's transactions and to
wire transfer such monies to such broker, dealer,
subcustodian, bank or other agent specified in such
instructions by a designated representative of Fund.
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.
C. If Custodian shall provide Fund direct access to any
computerized recordkeeping and reporting system used
hereunder or if Custodian and Fund shall agree to utilize
any electronic system of communication, Fund shall be fully
responsible for any and all consequences of the use or
misuse of the terminal device, passwords, access
instructions and other means of access to such system(s)
which are utilized by, assigned to or otherwise made
available to the Fund. Fund agrees to implement and enforce
appropriate security policies and procedures to prevent
unauthorized or improper access to or use of such system(s).
Custodian shall be fully protected in acting hereunder upon
any instructions, communications, data or other information
received by Custodian by such means as fully and to the same
effect as if delivered to Custodian by written instrument
signed by the requisite authorized representative(s) of
Fund. 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
suffered or incurred by Custodian as a result of the use or
misuse, whether authorized or unauthorized, of any such
system(s) by Fund or by any person who acquires access to
such system(s) through the terminal device, passwords,
access instructions or other means of access to such
system(s) which are utilized by, assigned to or otherwise
made available to the Fund, except to the extent
attributable to any negligence or willful misconduct by
Custodian.
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4. LIMITATION OF LIABILITY OF CUSTODIAN.
____________________________________
A. Notwithstanding any other provisions of this
Agreement, Custodian will hold harmless and indemnify Fund
from and against any loss or liability, including attorney's
fees, arising out of Custodian's breach of this Agreement or
its negligence, willful misconduct or bad faith. Custodian
shall not be liable for consequential, special, or punitive
damages. Custodian may request and obtain the advice and
opinion of counsel for 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
counsel, it may in its discretion, with notice to the Fund,
not act according to such instructions.
B. Fund shall hold harmless and indemnify Custodian
from and against any loss or liability, including attorney's
fees, arising out of Fund's breach of this Agreement or its
negligence, willful misconduct or bad faith.
C. Custodian may rely upon the advice of Fund and upon
statements of Fund's public accountants and other persons
believed by it in good faith, to be expert in matters upon
which they are consulted, and Custodian shall not be liable
for any actions taken, in good faith, upon such statements.
D. 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, upon notice to Fund given prior
to such actions, shall be and be kept indemnified by Fund in
an amount and form satisfactory to Custodian against any
liability on account of such action.
E. 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.
F. Custodian shall be protected in acting as custodian
hereunder upon any instructions, advice, notice, request,
consent, certificate or other instrument or paper reasonably
appearing to it to be genuine and to have been properly
executed and shall, unless otherwise
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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 the
Fund's President, or other officer specifically authorized
for such purpose.
G. 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 sale of any securities
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
shares of beneficial interest of Fund, or the
sufficiency of the amount to be received therefor;
4. The legality of the repurchase or redemption
of any Fund Shares, or the propriety of the amount
to be paid therefor; or
5. The legality of the declaration of any
dividend by Fund, or the legality of the issue of
any Fund Shares in payment of any stock dividend.
H. 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 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.
I. Except as otherwise provided in this Agreement,
Custodian shall not be responsible for loss occasioned by
the acts, neglects, defaults or insolvency of any broker,
bank, trust company, or any other person with whom Custodian
may deal in the absence of negligence, or bad faith on the
part of Custodian.
J. 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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K. Notwithstanding anything herein to the contrary,
Custodian may, and with respect to any foreign subcustodian
appointed under Section 2.S.2 must, provide Fund for its
approval, agreements with banks or trust companies which
will act as subcustodians for Fund pursuant to Section 2.S.
of this Agreement.
5. COMPENSATION. Fund will pay to Custodian such compensation
____________ as is stated in the Fee Schedule attached
hereto as Exhibit B which may be changed from time to time as
agreed to in writing by Custodian and Fund. Custodian may charge
such compensation against monies held by it for the account of
Fund. Custodian will also be entitled, notwithstanding the
provisions of Sections 4.C. or 4.D. hereof, to charge against any
monies held by it for the account of Fund the amount of any loss,
damage, liability, advance, or expense for which it shall be
entitled to reimbursement from the Fund under the provisions of
this Agreement including fees or expenses due to Custodian for
other services provided to the Fund by the Custodian.
6. TERMINATION. Either party to this Agreement may terminate
___________ the same by notice in writing, delivered or
mailed, postage prepaid, to the other party hereto and received
not less than sixty (60) days prior to the date upon which such
termination will take effect; provided, however, that the Fund
may terminate this Agreement forthwith if the Fund does not
receive shareholder approval and enter into an investment
advisory agreement with Xxxxxx Associates, Inc. and a sub-
advisory agreement with Perkins, Wolf, XxXxxxxxx & Company on or
before February _____, 1997. Upon termination of this Agreement,
Fund will pay to Custodian such compensation for its reimbursable
disbursements, costs and expenses paid or incurred to such date
and Fund will use its best efforts to obtain a successor
custodian. The Trustees of Fund will, forthwith upon giving or
receiving notice of termination of this Agreement, appoint a
successor custodian meeting the qualifications set forth in the
Investment Company Act of 1940 and such other qualifications for
custodian as may be set forth in the governing documents of Fund.
Custodian will, upon termination of this Agreement, deliver to
the successor custodian so specified or appointed, at Custodian's
office, all securities then held by Custodian hereunder, duly
endorsed and in form for transfer, all funds and other properties
of Fund deposited with or held by Custodian hereunder, or will
co-operate in effecting changes in book-entries at the Depository
Trust Company or in the Treasury/Federal Reserve Book-Entry
System or other depository pursuant to 31 CFR Sec. 306.118. In
the event no designation of a successor custodian has been
delivered to Custodian on or before the date when
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such termination becomes effective, then Custodian will deliver
the securities, funds and properties of the Fund to a bank or
trust company at the selection of Custodian and meeting the
qualifications for custodian, if any, set forth in the governing
documents of 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 will have no further obligations
or liabilities under this Agreement. Thereafter such bank or
trust company will be the successor custodian under this
Agreement and will be entitled to reasonable compensation for its
services. In the event that no such successor custodian can be
found, 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 will be
liquidated or function without a custodian. Notwithstanding the
foregoing requirement as to delivery upon termination of this
Agreement, Custodian may make any other delivery of the
securities, funds and property of Fund which is permitted by the
Investment Company Act of 1940, Fund's Trust Instrument and
Bylaws then in effect or apply to a court of competent
jurisdiction for the appointment of a successor custodian.
7. NOTICES. Notices, requests, instructions and other writings
_______ received by Fund at 00 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx
000, Xxxxxxx, Xxxxxxxx 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 received by Custodian at its
offices at 000 Xxxx 00xx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000, or
to such other address as it may have designated to Fund in
writing, will be deemed to have been properly given to Custodian
hereunder.
8. LIMITATION OF LIABILITY. Notice is hereby given that the
_______________________ Fund is a business trust organized
under the laws of the Commonwealth of Massachusetts pursuant to a
Declaration of Trust filed in the office of the Secretary of
State of the Commonwealth of Massachusetts. All parties to this
Agreement acknowledge and agree that the Fund is a series Fund
and all debts, liabilities, obligations and expenses incurred,
contracted for or otherwise existing with respect to a particular
series shall be enforceable against the assets held with respect
to such series only, and not against the assets of the Fund
generally or against the assets held with respect to any other
series and further that no trustee, officer or holder of shares
of beneficial interest of the Fund shall be personally liable for
any of the foregoing.
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9. NOTICES. Notices, requests, instructions and other writings
_______ received by Fund at 00 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx
000, Xxxxxxx, Xxxxxxxx 00000, or at such address as Fund may have
designated to IFTC in writing, shall be deemed to have been
properly given to Fund hereunder; and notices, requests,
instructions and other writings received by IFTC at its offices
at 000 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 to IFTC hereunder.
10. MISCELLANEOUS.
_____________
A. This Agreement is executed and delivered in the
State of Missouri and shall be governed by the laws of said
state.
B. All the terms and provisions of this Agreement shall
be binding upon, inure to the benefit of, and be enforceable
by the respective successor and assigns of the parties
hereto.
C. No provisions of the Agreement may be amended or
modified, in any manner except by a written agreement
properly authorized and executed by both parties hereto.
D. The captions in this Agreement are included for
convenience of reference only, and in no way define or
delimit any of the provisions hereof or otherwise affect
their construction or effect.
E. This Agreement may be executed simultaneously in two
or more counterparts, each of which will be deemed an
original but all of which together will constitute one and
the same instrument.
F. If any part, term or provision of this Agreement is
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.
G. Custodian will not release the identity of Fund to
an issuer which requests such information pursuant to the
Shareholder Communications Act of 1985 for the specific
purpose of direct communications between such issuer and
Fund unless the Fund directs the Custodian otherwise.
H. This Agreement may not be assigned by either party
without prior written consent of the other party.
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I. If any provision of the Agreement, either in its
present form or as amended from time to time, limits,
qualifies, or conflicts with the Investment Company Act of
1940 and the rules and regulations promulgated thereunder,
such statutes, rules and regulations shall be deemed to
control and supersede such provision without nullifying or
terminating the remainder of the provisions of this
Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement
to be executed by their respective duly authorized officers.
INVESTORS
FIDUCIARY TRUST COMPANY
By:
_______________________________
Xxxxx X.
Xxxxxx, Executive Vice
President
XXXXXX OMNI
INVESTMENT TRUST
By:_______________________________
Title:_____________________________
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EXHIBIT A
_________
INVESTORS FIDUCIARY TRUST COMPANY
AVAILABILITY SCHEDULE BY TRANSACTION TYPE
TRANSACTION DTC PHYSICAL FED
___________ ___ ________ ___
TYPE CREDIT DATE FUNDS TYPECREDIT DATE FUNDS TYPECREDIT DATE FUNDS TYPE
____ ___________ _____________________ _____________________ __________
Calls Puts As ReceivedC or F*As ReceivedC or F*
Maturities As ReceivedC or F*Mat. DateC or F* Mat. Date F
Tender Reorgs. As ReceivedC As ReceivedC N/A
Dividends Paydate C Paydate C N/A
Floating Rate Int.PaydateC Paydate C N/A
Floating Rate Int.
(No Rate) N/A As Rate
Received C N/A
Mtg. Backed P&IPaydate C Paydate + 1
Bus. DayC Paydate F
Fixed Rate Int.Paydate C Paydate C Paydate F
Euroclear N/A C Paydate C
Legend
______
C = Clearinghouse Funds
F = Fed Funds
N/A = Not Applicable
* Availability based on how received.
-22-
