CUSTODY AGREEMENT
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THIS AGREEMENT made effective as of the ____ day of __________,
1995, 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 INVESTMENT PORTFOLIO TRUST, a Delaware
business trust, referred to as the "Fund," consisting of separate
portfolios represented by separate series of shares of beneficial
interest (referred to herein, together with any such portfolios
hereafter constituted, where appropriate, individually as a
"Portfolio," or collectively as the "Portfolios,") having its
principal office and place of business at 000 Xxxxxxxxxx Xxxxxxxxx,
Xxxxx 000, Xxxxxx, Xxxxxxxx 00000.
WITNESSETH:
WHEREAS, Fund desires to appoint Investors Fiduciary Trust
Company as Custodian of the securities and monies of Fund's investment
portfolio; and
WHEREAS, Investors Fiduciary Trust Company is willing to accept
such appointment;
NOW THEREFORE, for and in consideration of the mutual promises
contained herein, the parties hereto, intending to be legally bound,
mutually covenant and agree as follows:
1. APPOINTMENT OF CUSTODIAN. Fund hereby constitutes and appoints
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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.
2. DELIVERY OF CORPORATE DOCUMENTS. Fund has delivered or will
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deliver to Custodian prior to the effective date of this
Agreement, copies of the following documents and all amendments
or supplements thereto, properly certified or authenticated:
A. Resolutions of the Trustees of Fund appointing Custodian as
custodian hereunder and approving the form of this
Agreement; and
B. Resolutions of the Trustees of Fund designating 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.
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A. Delivery of Assets
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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
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 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
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Fund shall turn over to Custodian all of each Portfolio's
relevant accounts and records previously maintained by it.
Custodian shall be entitled to rely conclusively on the
completeness and correctness of the accounts and records
turned over to it by Fund, 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 3.S. of this Agreement. Upon delivery of
any
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such assets to a subcustodian pursuant to Section 3.S. of
this agreement, Custodian will create and maintain records
identifying those assets which have been delivered to the
subcustodian as belonging to each such Portfolio. The
Custodian is responsible for the securities and monies of
Fund only until they have been transmitted to and received
by other persons as permitted under the terms of this
Agreement, except for securities and monies transmitted to
subcustodians appointed under Section 3.S of this Agreement
for which Custodian remains responsible to the extent
provided in Section 3.S 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 approved by the Fund (as such entities are
defined at 17 CFR Section 270.17f-4(b)) (each a "Depository"
and collectively the "Depositories").
D. Registration of Securities
--------------------------
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, with
or without any indication of fiduciary capacity.
Unless otherwise instructed, Custodian will register all
such portfolio securities in the name of its authorized
nominee. All securities, and the ownership thereof by 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
4.A, Custodian will exchange, or cause to be exchanged,
portfolio securities held by it for the account of Fund for
other securities or cash issued or paid in connection with
any reorganization, recapitalization, merger, consolidation,
split-up of shares, change of par value, conversion or
otherwise, and will deposit any such securities in
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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; and
8. The name of the person from whom or the broker or
dealer through whom the purchase was made.
In accordance with such instructions, Custodian will pay for
out of monies held for the account of the Portfolio, but
only insofar as monies are available therein for such
purpose, and receive the portfolio securities so purchased
by or for the account of the Portfolio except that Custodian
may in its sole discretion advance funds for the account of
the Portfolio which may result in an overdraft because the
monies held by the Custodian for the account of the
Portfolio of the Fund are insufficient to pay the total
amount payable upon such purchase. Except as otherwise
instructed by Fund, such payment shall be made by the
Custodian only upon receipt of securities: (a) by the
Custodian; (b) by a clearing corporation of
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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
3.S.2. of this Agreement to make, payment therefor in
accordance with generally accepted local custom and market
practice.
G. Sales and Deliveries of Investments of the Fund - Other than
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Options and Futures
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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;
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;
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8. The total amount to be received by Fund upon such sale;
and
9. The name and address of the broker or dealer through
whom or person to whom the sale was made.
In accordance with such instructions, Custodian will deliver
or cause to be delivered the securities thus designated as
sold for the account of 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 3.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
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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. Security Options
a. The underlying security;
b. The price at which purchased or sold;
c. The expiration date;
d. The number of contracts;
e. The exercise price;
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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. 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. Security Index Futures Contracts
a. The last trading date specified in the contract
and, when available, the closing level, thereof;
b. The index level on the date the contract is
entered into;
c. The multiple;
d. Any margin requirements;
e. The need for a segregated margin account (in
addition to instructions, and if not already in
the possession of Custodian, Fund shall deliver a
substantially complete and executed custodial
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safekeeping account and procedural agreement which
shall be incorporated by reference into this
Custody Agreement); and
f. The name and address of the futures commission
merchant through whom the sale or purchase was
made, or other applicable settlement instructions.
5. Option on Index Future Contracts
a. The underlying index 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.
2. Upon receipt of instructions, Custodian will release
securities held in custody to the borrower designated
in such instructions; provided,
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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 a special purpose deposit
account in the name of Custodian ("Account"), subject only
to draft or order by Custodian upon receipt of instructions.
All monies received by Custodian from or for the account of
a Portfolio shall be deposited in the Account of such
Portfolio. Barring events not in the control of the
Custodian such as strikes, lockouts or labor disputes,
riots, war or equipment or transmission failure or damage,
fire, flood, earthquake or other natural disaster, action or
inaction of governmental authority or other causes beyond
its control, at 9:00 a.m., Kansas City time, on the second
business day after deposit of any check into a Portfolio's
Account, Custodian agrees to make Fed Funds available to
such Portfolio in the amount of the check. Deposits made by
Federal Reserve wire will be available 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 its own banking department, in
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Xxxxx Xxxxxx Bank and Trust Company, and in such other banks
or trust companies as may be designated by it and as
properly authorized by resolution of the Trustees of the
Fund, 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 account
of 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 account
of the applicable Portfolio in accordance with the
schedule attached hereto as Exhibit A. If, for any
reason, a Portfolio is credited with income that is not
subsequently collected, Custodian may reverse that
credited amount provided that the Custodian has made
reasonable efforts to collect such uncollected income;
2. Execute ownership and other certificates and affidavits
for all federal, state and local tax purposes in
connection with the collection of bond and note
coupons; and
3. Take such other action as may be necessary or proper in
connection with:
a. the collection, receipt and deposit of such income
and other payments, including but not limited to
the presentation for payment of:
1. all coupons and other income items requiring
presentation; and
2. all other securities which may mature or be
called, redeemed, retired or otherwise become
payable and regarding which the Custodian has
actual knowledge, or notice of which is
contained in publications of the type to
which it normally subscribes for such
purpose; and
b. the endorsement for collection, in the name of
Fund, of all checks, drafts or other negotiable
instruments.
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Custodian, however, will not be required to institute suit
or take other extraordinary action to enforce collection
except upon receipt of instructions and upon being
indemnified to its satisfaction against the costs and
expenses of such suit or other actions. Custodian will
receive, claim and collect all stock dividends, rights and
other similar items and will deal with the same pursuant to
instructions. Unless prior instructions have been received
to the contrary, Custodian will, without further
instructions, sell any rights held for the account of a
Portfolio on the last trade date prior to the date of
expiration of such rights.
M. Payment of Dividends and other Distributions
--------------------------------------------
On the declaration of any dividend or other distribution on
the shares of the Fund ("Fund Shares") by the Trustees of
Fund, Fund shall deliver to Custodian instructions with
respect thereto, including a copy of the Resolution of said
Trustees certified by the Secretary or an Assistant
Secretary of Fund wherein there shall be set forth the
record date as of which shareholders entitled to receive
such dividend or other distribution shall be determined, the
date of payment of such dividend or distribution, and the
amount payable per share on such dividend or distribution.
Except if the ex-dividend date and the reinvestment date of
any dividend are the same, in which case funds shall remain
in the Custody Account, on the date specified in such
Resolution for the payment of such dividend or other
distribution, Custodian will pay out of the monies held for
the account of the applicable Portfolio, insofar as the same
shall be available for such purposes, and credit to the
account of the Dividend Disbursing Agent for 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
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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.
O. Shares of Fund Purchased from Fund
----------------------------------
Whenever Fund Shares are purchased from Fund, Fund will
deposit or cause to be deposited with Custodian the amount
received for such shares.
Custodian shall not have any duty or responsibility 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.
P. Proxies and Notices
-------------------
Custodian will promptly deliver or mail or have delivered or
mailed to Fund all proxies properly signed, all notices of
meetings, all proxy statements and other notices, requests
or announcements affecting or relating to securities held by
Custodian for Fund and will, upon receipt of instructions,
execute and deliver or cause its nominee to execute and
deliver or mail or have delivered or mailed such proxies or
other authorizations as may be required. Except as provided
by this Agreement or pursuant to instructions hereafter
received by Custodian, neither it nor its nominee will
exercise any power inherent in any such securities,
including any power to vote the same, or execute any proxy,
power of attorney, or other similar instrument voting any of
such securities, or give any consent, approval or waiver
with respect thereto, or take any other similar action.
Q. Disbursements
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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,
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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 account of 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.
S. Appointment 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 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
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as provided in Subsection 2 below) to the same extent
Custodian would be responsible to the Fund under
Section 5. of this Agreement if it committed the act or
omission itself. Upon request of the Fund, Custodian
shall be willing to contract with other subcustodians
reasonably acceptable to the Custodian for purposes of
(i) effecting third-party repurchase transactions with
banks, brokers, dealers, or other entities through the
use of a common custodian or subcustodian, or (ii)
providing depository and clearing agency services with
respect to certain variable rate demand note
securities, or (iii) for other reasonable purposes
specified by Fund; provided, however, that the
Custodian shall be responsible to the Fund for any
loss, damage or expense suffered or incurred by the
Fund resulting from the actions or omissions of any
such subcustodian only to the same extent such
subcustodian is responsible to the Custodian. The Fund
shall be entitled to review the Custodian's contracts
with any such subcustodians appointed at the request of
Fund.
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 3.S.1; and thereafter, pursuant to
a written contract or contracts as approved by Fund's
governing Board, may be transferred to an account
maintained by such subcustodian with an eligible
foreign custodian, as defined in Rule 17f-5(c)(2),
provided that any such arrangement involving a foreign
custodian shall be in accordance with the provisions of
Rule 17f-5 under the Investment Company Act of 1940 as
that Rule may be amended from time to time. The Fund
shall be provided the contract with the domestic
subcustodian who shall contract with the eligible
foreign subcustodians. The Custodian shall be
responsible for the monies and securities of Fund held
by eligible foreign
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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 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
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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.
4. INSTRUCTIONS.
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A. The term "instructions", as used herein, means written 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 4, 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.
-16-
Notwithstanding any other provision of this Agreement,
Custodian, upon receipt (and acknowledgment if required at
the 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,
-17-
assigned to or otherwise made available to the Fund, except
to the extent attributable to any negligence or willful
misconduct by Custodian.
5. 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.
-18-
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 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
-19-
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.
K. Notwithstanding anything herein to the contrary, Custodian
may, and with respect to any foreign subcustodian appointed
under Section 3.S.2. must, provide Fund for its approval,
agreements with banks or trust companies which will act as
subcustodians for Fund pursuant to Section 3.S. of this
Agreement.
6. 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 5.C. or 5.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.
7. TERMINATION. Either party to this Agreement may terminate the
-----------
same by notice in writing, delivered or mailed, postage prepaid,
to the other party hereto and received not less than sixty (60)
days prior to the date upon which such termination will take
effect. Upon termination of this Agreement, 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. Unless the
holders of a majority of the outstanding shares of the Fund vote
to have the securities, funds and other properties held under
this Agreement delivered and paid over to some other person, firm
or corporation specified in the vote, having not less the Two
Million Dollars ($2,000,000) aggregate capital, surplus and
undivided profits, as shown by its last published report, and
meeting such other qualifications for custodian as set forth in
the governing documents of Fund, the Trustees of Fund will,
forthwith upon giving or receiving notice of termination of this
Agreement, appoint as successor custodian a bank
-20-
or trust company having such qualifications. Custodian will,
upon termination of this Agreement, deliver to the successor
custodian so specified or appointed, at Custodian's office, all
securities then held by Custodian hereunder, duly endorsed and in
form for transfer, all funds and other properties of 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 such vote has been adopted by the stockholders of Fund and no
written order designating a successor custodian has been
delivered to Custodian on or before the date when such
termination becomes effective, then Custodian will deliver the
securities, funds and properties of 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.
8. NOTICES. Notices, requests, instructions and other writings
-------
received by Fund at 000 Xxxxxxxxxx Xxxxxxxxx, Xxxxx 000,
Xxxxxx, 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
-21-
such other address as it may have designated to Fund in writing,
will be deemed to have been properly given to Custodian
hereunder.
9. LIMITATION OF LIABILITY. Notice is hereby given that the Fund is
-----------------------
a business trust organized under the Delaware Business Trust Act
pursuant to a Certificate of Trust filed in the office of the
Secretary of State of the State of Delaware. 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
general 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.
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.
-22-
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.
I. If any provision of the Agreement, either in its present
form or as amended from time to time, limits, qualifies, or
conflicts with the Investment Company Act of 1940 and the
rules and regulations promulgated thereunder, such statutes,
rules and regulations shall be deemed to control and
supersede such provision without nullifying or terminating
the remainder of the provisions of this Agreement.
J. The Custody Agreement dated December 14, 1993, between
Custodian and Fund is hereby cancelled and superseded
effective as of the date hereof, except that all rights,
duties and liabilities which may have arisen thereunder
prior to the effectiveness hereof shall continue and
survive.
-23-
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective duly authorized officers.
INVESTORS FIDUCIARY TRUST COMPANY
By: ___________________________________
Title: ________________________________
XXXXXX INVESTMENT PORTFOLIO TRUST
By: ___________________________________
Title: ________________________________
-24-
EXHIBIT A
---------
INVESTORS FIDUCIARY TRUST COMPANY
AVAILABILITY SCHEDULE BY TRANSACTION TYPE
TRANSACTION DTC PHYSICAL FED
----------- -------------------------- ------------------------------- --------------------------
TYPE CREDIT DATE FUNDS TYPE CREDIT DATE FUNDS TYPE CREDIT DATE FUNDS TYPE
--------------------------------------------------------------------------------------------------------------------
Calls Puts As Received C or F* As Received C or F*
Maturities As Received C or F* Mat. Date C or F* Mat. Date F
Tender Reorgs. As Received C As Received C N/A
Dividends Paydate C Paydate C N/A
Floating Rate Int. Paydate C Paydate C N/A
Floating Rate Int. (No N/A As Rate Received C N/A
Rate)
Mtg. Backed P&I Paydate C Paydate + 1 Bus. C Paydate F
Day
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.
