CUSTODY AGREEMENT Dated as of June 21, 2007 Between UMB BANK, N.A. and ADELANTE FUNDS
Dated
as of June 21, 2007
Between
UMB
BANK, N.A.
and
TABLE
OF CONTENTS
SECTION
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PAGE
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1.
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Appointment
of Custodian
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1
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2.
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Definitions
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1
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(a)
Securities
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1
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(b)
Assets
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1
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(c)
Instructions and Special Instructions
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1
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3.
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Delivery
of Corporate Documents
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2
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4.
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Powers
and Duties of Custodian and Domestic Subcustodian
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2
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(a)
Safekeeping
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3
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(b)
Manner of Holding Securities
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3
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(c)
Free Delivery of Assets
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4
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(d)
Exchange of Securities
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4
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(e)
Purchases of Assets
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4
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(f)
Sales of Assets
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5
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(g)
Options
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5
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(h)
Futures Contracts
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6
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(i)
Segregated Accounts
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6
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(j)
Depositary Receipts
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6
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(k)
Corporate Actions, Put Bonds, Called Bonds, Etc.
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6
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(l)
Interest Bearing Deposits
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7
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(m)
Foreign Exchange Transactions
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7
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(n)
Pledges or Loans of Securities
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8
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(o)
Stock Dividends, Rights, Etc.
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8
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(p)
Routine Dealings
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8
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(q)
Collections
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8
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(r)
Bank Accounts
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9
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(s)
Dividends, Distributions and Redemptions
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9
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(t)
Proceeds from Shares Sold
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9
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(u)
Proxies and Notices; Compliance with the Shareholders
Communication Act of 1985
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9
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(v)
Books and Records
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9
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(w)
Opinion of Fund's Independent Certified Public Accountants
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10
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(x)
Reports by Independent Certified Public Accountants
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10
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(y)
Bills and Others Disbursements
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10
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5.
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Subcustodians
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10
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(a)
Domestic Subcustodians
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10
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(b)
Foreign Subcustodians
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10
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(c)
Interim Subcustodians
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11
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(d)
Special Subcustodians
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11
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(e)
Termination of a Subcustodian
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11
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(f)
Certification Regarding Foreign Subcustodians
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11
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6.
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Standard
of Care
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12
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(a)
General Standard of Care
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12
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(b)
Actions Prohibited by Applicable Law, Events Beyond Custodian’s Control,
Armed
Conflict, Sovereign Risk, etc.
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12
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(c)
Liability for Past Records
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12
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(d)
Advice of Counsel
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12
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(e)
Advice of the Fund and Others
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12
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(f)
Instructions Appearing to be Genuine
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13
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(g)
Exceptions from Liability
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13
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7.
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Liability
of the Custodian for Actions of Others
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13
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(a)
Domestic Subcustodians
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13
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(b)
Liability for Acts and Omissions of Foreign Subcustodians
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13
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(c)
Securities Systems, Interim Subcustodians, Special Subcustodians,
Securities
Depositories and Clearing Agencies
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13
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(d)
Defaults or Insolvency’s of Brokers, Banks, Etc.
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14
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(e)
Reimbursement of Expenses
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14
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8.
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Indemnification
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14
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(a)
Indemnification by Fund
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14
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(b)
Indemnification by Custodian
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14
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9.
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Advances
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14
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10.
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Liens
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15
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11.
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Compensation
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15
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12.
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Powers
of Attorney
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15
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13.
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Termination
and Assignment
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15
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14.
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Additional
Funds
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15
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15.
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Notices
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16
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16.
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Miscellaneous
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16
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This
agreement made as of this 21st day of June, 2007, between UMB Bank, n.a., a
national banking association with its principal place of business located in
Kansas City, Missouri (hereinafter "Custodian"), and each of the Funds listed
on
Appendix B hereof, together with such additional Funds which shall be made
parties to this Agreement by the execution of Appendix B hereto (individually,
a
"Fund" and collectively, the "Funds").
WITNESSETH:
WHEREAS,
each
Fund is registered as an open-end management investment company under the
Investment Company Act of 1940, as amended; and
WHEREAS,
each
Fund desires to appoint Custodian as its custodian for the custody of Assets
(as
hereinafter defined) owned by such Fund which Assets are to be held in such
accounts as such Fund may establish from time to time; and
WHEREAS,
Custodian is willing to accept such appointment on the terms and conditions
hereof.
NOW,
THEREFORE,
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.
Each
Fund
hereby constitutes and appoints the Custodian as custodian of Assets belonging
to each such Fund which have been or may be from time to time deposited with
the
Custodian. Custodian accepts such appointment as a custodian and agrees to
perform the duties and responsibilities of Custodian as set forth herein on
the
conditions set forth herein.
2.
DEFINITIONS.
For
purposes of this Agreement, the following terms shall have the meanings so
indicated:
(a)
"Security" or "Securities" shall mean stocks, bonds, bills, rights, script,
warrants, interim certificates and all negotiable or nonnegotiable paper
commonly known as Securities and other instruments or obligations.
(b)
"Assets" shall mean Securities, monies and other property held by the Custodian
for the benefit of a Fund.
(c)(1)
"Instructions", as used herein, shall mean: (i) a tested telex, a written
(including, without limitation, facsimile transmission) request, direction,
instruction or certification signed or initialed by or on behalf of a Fund
by an
Authorized Person; (ii) a telephonic or other oral communication from a person
the Custodian reasonably believes to be an Authorized Person; or (iii) a
communication effected directly between an electro-mechanical or electronic
device or system (including, without limitation, computers) on behalf of a
Fund.
Instructions in the form of oral communications shall be confirmed by the
appropriate Fund by tested telex or in writing in the manner set forth in clause
(i) above, but the lack of such confirmation shall in no way affect any action
taken by the Custodian in reliance upon such oral Instructions prior to the
Custodian's receipt of such confirmation. Each Fund authorizes the Custodian
to
record any and all telephonic or other oral Instructions communicated to the
Custodian.
(c)(2)
"Special Instructions", as used herein, shall mean Instructions countersigned
or
confirmed in writing by the Treasurer or any Assistant Treasurer of a Fund
or
any other person designated by the Treasurer of such Fund in writing, which
countersignature or confirmation shall be included on the same instrument
containing the Instructions or on a separate instrument relating
thereto.
1
(c)(3)
Instructions and Special Instructions shall be delivered to the Custodian at
the
address and/or telephone, facsimile transmission or telex number agreed upon
from time to time by the Custodian and each Fund.
(c)(4)
Where appropriate, Instructions and Special Instructions shall be continuing
instructions.
3.
DELIVERY
OF CORPORATE DOCUMENTS.
Each
of
the parties to this Agreement represents that its execution does not violate
any
of the provisions of its respective charter, articles of incorporation, articles
of association or bylaws and all required corporate action to authorize the
execution and delivery of this Agreement has been taken.
Each
Fund
has furnished the Custodian with copies, properly certified or authenticated,
with all amendments or supplements thereto, of the following
documents:
(a)
Certificate of Incorporation (or equivalent document) of the Fund as in effect
on the date hereof;
(b)
By-Laws of the Fund as in effect on the date hereof;
(c)
Resolutions of the Board of Directors of the Fund appointing the Custodian
and
approving the form of this Agreement; and
(d)
The
Fund's current prospectus and statements of additional information.
Each
Fund
shall promptly furnish the Custodian with copies of any updates, amendments
or
supplements to the foregoing documents.
In
addition, each Fund has delivered or will promptly deliver to the Custodian,
copies of the Resolution(s) of its Board of Directors or Trustees and all
amendments or supplements thereto, properly certified or authenticated,
designating certain officers or employees of each such Fund who will have
continuing authority to certify to the Custodian: (a) the names, titles,
signatures and scope of authority of all persons authorized to give Instructions
or any other notice, request, direction, instruction, certificate or instrument
on behalf of each Fund, and (b) the names, titles and signatures of those
persons authorized to countersign or confirm Special Instructions on behalf
of
each Fund (in both cases collectively, the "Authorized Persons" and
individually, an "Authorized Person"). Such Resolutions and certificates may
be
accepted and relied upon by the Custodian as conclusive evidence of the facts
set forth therein and shall be considered to be in full force and effect until
delivery to the Custodian of a similar Resolution or certificate to the
contrary. Upon delivery of a certificate which deletes or does not include
the
name(s) of a person previously authorized to give Instructions or to countersign
or confirm Special Instructions, such persons shall no longer be considered
an
Authorized Person authorized to give Instructions or to countersign or confirm
Special Instructions. Unless the certificate specifically requires that the
approval of anyone else will first have been obtained, the Custodian will be
under no obligation to inquire into the right of the person giving such
Instructions or Special Instructions to do so. Notwithstanding any of the
foregoing, no Instructions or Special Instructions received by the Custodian
from a Fund will be deemed to authorize or permit any director, trustee,
officer, employee, or agent of such Fund to withdraw any of the Assets of such
Fund upon the mere receipt of such authorization, Special Instructions or
Instructions from such director, trustee, officer, employee or
agent.
4.
POWERS
AND DUTIES OF CUSTODIAN AND DOMESTIC SUBCUSTODIAN.
Except
for Assets held by any Subcustodian appointed pursuant to Sections 5(b), (c),
or
(d) of this Agreement, the Custodian shall have and perform the powers and
duties hereinafter set forth in this Section 4. For purposes of this Section
4
all references to powers and duties of the "Custodian" shall also refer to
any
Domestic Subcustodian appointed pursuant to Section 5(a).
(a)
Safekeeping.
2
The
Custodian will keep safely the Assets of each Fund which are delivered to it
from time to time. The Custodian shall not be responsible for any property
of a
Fund held or received by such Fund and not delivered to the
Custodian.
(b)
Manner
of Holding Securities.
(1)
The
Custodian shall at all times hold Securities of each Fund either: (i) by
physical possession of the share certificates or other instruments representing
such Securities in registered or bearer form; or (ii) in book-entry form by
a
Securities System (as hereinafter defined) in accordance with the provisions
of
sub-paragraph (3) below.
(2)
The
Custodian may hold registrable portfolio Securities which have been delivered
to
it in physical form, by registering the same in the name of the appropriate
Fund
or its nominee, or in the name of the Custodian or its nominee, for whose
actions such Fund and Custodian, respectively, shall be fully responsible.
Upon
the receipt of Instructions, the Custodian shall hold such Securities in street
certificate form, so called, with or without any indication of fiduciary
capacity. However, unless it receives Instructions to the contrary, the
Custodian will register all such portfolio Securities in the name of the
Custodian's authorized nominee. All such Securities shall be held in an account
of the Custodian containing only assets of the appropriate Fund or only assets
held by the Custodian as a fiduciary, provided that the records of the Custodian
shall indicate at all times the Fund or other customer for which such Securities
are held in such accounts and the respective interests therein.
(3)
The
Custodian may deposit and/or maintain domestic Securities owned by a Fund in,
and each Fund hereby approves use of: (a) The Depository Trust Company; (b)
The
Participants Trust Company; and (c) any book-entry system as provided in (i)
Subpart O of Treasury Circular Xx. 000, 00 XXX 306.115, (ii) Subpart B of
Treasury Circular Public Debt Series Xx. 00-00, 00 XXX 350.2, or (iii) the
book-entry regulations of federal agencies substantially in the form of 31
CFR
306.115. Upon the receipt of Special Instructions, the Custodian may deposit
and/or maintain domestic Securities owned by a Fund in any other domestic
clearing agency registered with the Securities and Exchange Commission ("SEC")
under Section 17A of the Securities Exchange Act of 1934 (or as may otherwise
be
authorized by the SEC to serve in the capacity of depository or clearing agent
for the Securities or other assets of investment companies) which acts as a
Securities depository. Each of the foregoing shall be referred to in this
Agreement as a "Securities System", and all such Securities Systems shall be
listed on the attached Appendix A. Use of a Securities System shall be in
accordance with applicable Federal Reserve Board and SEC rules and regulations,
if any, and subject to the following provisions:
(i)
The
Custodian may deposit the Securities directly or through one or more agents
or
Subcustodians which are also qualified to act as custodians for investment
companies.
(ii)
The
Custodian shall deposit and/or maintain the Securities in a Securities System,
provided that such Securities are represented in an account ("Account") of
the
Custodian in the Securities System that includes only assets held by the
Custodian as a fiduciary, custodian or otherwise for customers.
(iii)
The
books and records of the Custodian shall at all times identify those Securities
belonging to any one or more Funds which are maintained in a Securities
System.
(iv)
The
Custodian shall pay for Securities purchased for the account of a Fund only
upon
(a) receipt of advice from the Securities System that such Securities have
been
transferred to the Account of the Custodian in accordance with the rules of
the
Securities System, and (b) the making of an entry on the records of the
Custodian to reflect such payment and transfer for the account of such Fund.
The
Custodian shall transfer Securities sold for the account of a Fund only upon
(a)
receipt of advice from the Securities System that payment for such Securities
has been transferred to the Account of the Custodian in accordance with the
rules of the Securities System, and (b) the making of an entry on the records
of
the Custodian to reflect such transfer and payment for the account of such
Fund.
Copies of all advices from the Securities System relating to transfers of
Securities for the account of a Fund shall be maintained for such Fund by the
Custodian. The Custodian shall deliver to a Fund on the next succeeding business
day daily transaction reports that shall include each day's transactions in
the
Securities System for the account of such Fund. Such transaction reports shall
be delivered to such Fund or any agent designated by such Fund pursuant to
Instructions, by computer or in such other manner as such Fund and Custodian
may
agree.
3
(v)
The
Custodian shall, if requested by a Fund pursuant to Instructions, provide such
Fund with reports obtained by the Custodian or any Subcustodian with respect
to
a Securities System's accounting system, internal accounting control and
procedures for safeguarding Securities deposited in the Securities
System.
(vi)
Upon
receipt of Special Instructions, the Custodian shall terminate the use of any
Securities System on behalf of a Fund as promptly as practicable and shall
take
all actions reasonably practicable to safeguard the Securities of such Fund
maintained with such Securities System.
(c)
Free
Delivery of Assets.
Notwithstanding
any other provision of this Agreement and except as provided in Section 3
hereof, the Custodian, upon receipt of Special Instructions, will undertake
to
make free delivery of Assets, provided such Assets are on hand and available,
in
connection with a Fund's transactions and to transfer such Assets to such
broker, dealer, Subcustodian, bank, agent, Securities System or otherwise as
specified in such Special Instructions.
(d)
Exchange
of Securities.
Upon
receipt of Instructions, the Custodian will exchange portfolio Securities held
by it for a Fund for other Securities or cash paid in connection with any
reorganization, recapitalization, merger, consolidation, share split, change
in
par value or conversion of convertible Securities or other similar event
affecting an issuer or its securities, and will deposit any such Securities
in
accordance with the terms of any reorganization or protective plan.
Without
Instructions, the Custodian is authorized to exchange Securities held by it
in
temporary form for Securities in definitive form, to surrender Securities for
transfer into a name or nominee name as permitted in Section 4(b)(2), to effect
an exchange of shares in a stock split or when the par value of the stock is
changed, to sell any fractional shares, and, upon receiving payment therefor,
to
surrender bonds or other Securities held by it at maturity or call.
(e)
Purchases
of Assets.
(1)
Securities
Purchases.
In
accordance with Instructions, the Custodian shall, with respect to a purchase
of
Securities, pay for such Securities out of monies held for a Fund's account
for
which the purchase was made, but only insofar as monies are available therein
for such purpose, and receive the portfolio Securities so purchased. Unless
the
Custodian has received Special Instructions to the contrary, such payment will
be made only upon receipt of Securities by the Custodian, a clearing corporation
of a national Securities exchange of which the Custodian is a member, or a
Securities System in accordance with the provisions of Section 4(b)(3) hereof.
Notwithstanding the foregoing, upon receipt of Instructions: (i) in connection
with a repurchase agreement, the Custodian may release funds to a Securities
System prior to the receipt of advice from the Securities System that the
Securities underlying such repurchase agreement have been transferred by
book-entry into the Account maintained with such Securities System by the
Custodian, provided that the Custodian's instructions to the Securities System
require that the Securities System may make payment of such funds to the other
party to the repurchase agreement only upon transfer by book-entry of the
Securities underlying the repurchase agreement into such Account; (ii) in the
case of Interest Bearing Deposits, currency deposits, and other deposits,
foreign exchange transactions, futures contracts or options, pursuant to
Sections 4(g), 4(h), 4(l), and 4(m) hereof, the Custodian may, subject to the
standard of care in Section 6, make payment therefor before receipt of an
advice of transaction; and (iii) in the case of Securities as to which payment
for the Security and receipt of the instrument evidencing the Security are
under
generally accepted trade practice or the terms of the instrument representing
the Security expected to take place in different locations or through separate
parties, such as commercial paper which is indexed to foreign currency exchange
rates, derivatives and similar Securities, the Custodian may make payment for
such Securities prior to delivery thereof in accordance with such generally
accepted trade practice or the terms of the instrument representing such
Security.
4
(2)
Other
Assets Purchased.
Upon
receipt of Instructions and except as otherwise provided herein, the Custodian
shall pay for and receive other Assets for the account of a Fund as provided
in
Instructions.
(f)
Sales
of Assets.
(1)
Securities
Sold.
In
accordance with Instructions, the Custodian will, with respect to a sale,
deliver or cause to be delivered the Securities thus designated as sold to
the
broker or other person specified in the Instructions relating to such sale.
Unless the Custodian has received Special Instructions to the contrary, such
delivery shall be made only upon receipt of payment therefor in the form of:
(a)
cash, certified check, bank cashier's check, bank credit, or bank wire transfer;
(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 with a Securities System, in accordance with
the
provisions of Section 4(b)(3) hereof. Notwithstanding the foregoing, Securities
held in physical form may be delivered and paid for in accordance with "street
delivery custom" to a broker or its clearing agent, against delivery to the
Custodian of a receipt for such Securities, provided that the Custodian shall
have taken reasonable steps to ensure prompt collection of the payment for,
or
return of, such Securities by the broker or its clearing agent, and provided
further that, subject to the standard of care in Section 6, the Custodian
shall not be responsible for the selection of or the failure or inability to
perform of such broker or its clearing agent or for any related loss arising
from delivery or custody of such Securities prior to receiving payment
therefor.
(2)
Other
Assets Sold.
Upon
receipt of Instructions and except as otherwise provided herein, the Custodian
shall receive payment for and deliver other Assets for the account of a Fund
as
provided in Instructions.
(g)
Options.
(1)
Upon
receipt of Instructions relating to the purchase of an option or sale of a
covered call option, the Custodian shall: (a) receive and retain confirmations
or other documents, if any, evidencing the purchase or writing of the option
by
a Fund; (b) if the transaction involves the sale of a covered call option,
deposit and maintain in a segregated account the Securities (either physically
or by book-entry in a Securities System) subject to the covered call option
written on behalf of such Fund; and (c) pay, release and/or transfer such
Securities, cash or other Assets in accordance with any notices or other
communications evidencing the expiration, termination or exercise of such
options which are furnished to the Custodian by the Options Clearing Corporation
(the "OCC"), the securities or options exchanges on which such options were
traded, or such other organization as may be responsible for handling such
option transactions.
(2)
Upon
receipt of Instructions relating to the sale of a naked option (including stock
index and commodity options), the Custodian, the appropriate Fund and the
broker-dealer shall enter into an agreement to comply with the rules of the
OCC
or of any registered national securities exchange or similar organizations(s).
Pursuant to that agreement and such Fund's Instructions, the Custodian shall:
(a) receive and retain confirmations or other documents, if any, evidencing
the
writing of the option; (b) deposit and maintain in a segregated account,
Securities (either physically or by book-entry in a Securities System), cash
and/or other Assets; and (c) pay, release and/or transfer such Securities,
cash
or other Assets in accordance with any such agreement and with any notices
or
other communications evidencing the expiration, termination or exercise of
such
option which are furnished to the Custodian by the OCC, the securities or
options exchanges on which such options were traded, or such other organization
as may be responsible for handling such option transactions. The appropriate
Fund and the broker-dealer shall be responsible for determining the quality
and
quantity of assets held in any segregated account established in compliance
with
applicable margin maintenance requirements and the performance of other terms
of
any option contract.
(h)
Futures
Contracts.
Upon
receipt of Instructions, the Custodian shall enter into a futures margin
procedural agreement among the appropriate Fund, the Custodian and the
designated futures commission merchant (a "Procedural Agreement"). Under the
Procedural Agreement the Custodian shall: (a) receive and retain confirmations,
if any, evidencing the purchase or sale of a futures contract or an option
on a
futures contract by such Fund; (b) deposit and maintain in a segregated account
cash, Securities and/or other Assets designated as initial, maintenance or
variation "margin" deposits intended to secure such Fund's performance of its
obligations under any futures contracts purchased or sold, or any options on
futures contracts written by such Fund, in accordance with the provisions of
any
Procedural Agreement designed to comply with the provisions of the Commodity
Futures Trading Commission and/or any commodity exchange or contract market
(such as the Chicago Board of Trade), or any similar organization(s), regarding
such margin deposits; and (c) release Assets from and/or transfer Assets into
such margin accounts only in accordance with any such Procedural Agreements.
The
appropriate Fund and such futures commission merchant shall be responsible
for
determining the type and amount of Assets held in the segregated account or
paid
to the broker-dealer in compliance with applicable margin maintenance
requirements and the performance of any futures contract or option on a futures
contract in accordance with its terms.
5
(i)
Segregated
Accounts.
Upon
receipt of Instructions, the Custodian shall establish and maintain on its
books
a segregated account or accounts for and on behalf of a Fund, into which account
or accounts may be transferred Assets of such Fund, including Securities
maintained by the Custodian in a Securities System
pursuant
to Paragraph (b)(3) of this Section 4, said account or accounts to be maintained
(i) for the purposes set forth in Sections 4(g), 4(h) and 4(n) and (ii) for
the
purpose of compliance by such Fund with the procedures required by the SEC
Investment Company Act Release Number 10666 or any subsequent release or
releases relating to the maintenance of segregated accounts by registered
investment companies, or (iii) for such other purposes as may be set forth,
from
time to time, in Special Instructions. The Custodian shall not be responsible
for the determination of the type or amount of Assets to be held in any
segregated account referred to in this paragraph, or for compliance by the
Fund
with required procedures noted in (ii) above.
(j)
Depositary
Receipts.
Upon
receipt of Instructions, the Custodian shall surrender or cause to be
surrendered Securities to the depositary used for such Securities by an issuer
of American Depositary Receipts or International Depositary Receipts
(hereinafter referred to, collectively, as "ADRs"), against a written receipt
therefor adequately describing such Securities and written evidence satisfactory
to the organization surrendering the same that the depositary has acknowledged
receipt of instructions to issue ADRs with respect to such Securities in the
name of the Custodian or a nominee of the Custodian, for delivery in accordance
with such instructions.
Upon
receipt of Instructions, the Custodian shall surrender or cause to be
surrendered ADRs to the issuer thereof, against a written receipt therefor
adequately describing the ADRs surrendered and written evidence satisfactory
to
the organization surrendering the same that the issuer of the ADRs has
acknowledged receipt of instructions to cause its depository to deliver the
Securities underlying such ADRs in accordance with such
instructions.
(k)
Corporate
Actions, Put Bonds, Called Bonds, Etc.
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, acquired as a result of such
actions 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.
Notwithstanding
any provision of this Agreement to the contrary, the Custodian shall take all
necessary action, unless otherwise directed to the contrary in Instructions,
to
comply with the terms of all mandatory or compulsory exchanges, calls, tenders,
redemptions, or similar rights of security ownership, and shall notify the
appropriate Fund of such action in writing by facsimile transmission or in
such
other manner as such Fund and Custodian may agree in writing.
Notwithstanding
any provision of this Agreement to the contrary, if the Custodian has any
information in writing relating to the following matters, the Custodian shall
notify a Fund by such means as the parties agree from time to time of (A) any
default in payment of funds on securities; (B) any securities that have matured,
been called or redeemed; and (C) to the extent the Custodian has notice
which is contained in services to which the Custodian normally subscribed for
such purposes, or actual knowledge if not contained in such services, any other
default involving securities; and (D) all announcements of defaults,
bankruptcies, reorganizations, mergers, consolidations, recapitalizations or
rights or privileges to subscribe, convert, exchange, put, redeem or tender
securities held subject to this Agreement. The Custodian shall, following
receipt or knowledge, convey such information to the Fund in a timely manner
based upon the circumstances of each particular case. Whenever any such rights
or privileges exist, Fund will, in a timely manner based upon the circumstances
of each particular case, provide the Custodian with Instructions. Absent the
Custodian’s timely receipt of Instructions, the Custodian shall not be liable
for not taking any action or not exercising such rights prior to their
expiration unless such failure is due to Custodian’s rights prior to their
expiration unless such failure is due to Custodian’s failure to give timely
notice to the Fund in accordance with this Section 4(k).
6
(l)
Interest
Bearing Deposits.
Upon
receipt of Instructions directing the Custodian to purchase interest bearing
fixed term and call deposits (hereinafter referred to, collectively, as
"Interest Bearing Deposits") for the account of a Fund, the Custodian shall
purchase such Interest Bearing Deposits in the name of such Fund with such
banks
or trust companies, including the Custodian, any Subcustodian or any subsidiary
or affiliate of the Custodian (hereinafter referred to as "Banking
Institutions"), and in such amounts as such Fund may direct pursuant to
Instructions. Such Interest Bearing Deposits may be denominated in U.S. dollars
or other currencies, as such Fund may determine and direct pursuant to
Instructions. The responsibilities of the Custodian to a Fund for Interest
Bearing Deposits issued by the Custodian shall be that of a U.S. bank for a
similar deposit. With respect to Interest Bearing Deposits other than those
issued by the Custodian, (a) the Custodian shall be responsible for the
collection of income and the transmission of cash to and from such accounts;
and
(b) the Custodian shall have no duty with respect to the selection of the
Banking Institution or, provided the Custodian acts in accordance with
Instructions and this Agreement, for the failure of such Banking Institution
to
pay upon demand.
(m)
Foreign
Exchange Transactions.
(l)
Each
Fund hereby appoints the Custodian as its agent in the execution of all currency
exchange transactions. The Custodian agrees to provide exchange rate and U.S.
Dollar information, in writing, to the Funds. Such information shall be supplied
by the Custodian at least by the business day prior to the value date of the
foreign exchange transaction, provided that the Custodian receives the request
for such information at least two business days prior to the value date of
the
transaction.
(2)
Upon
receipt of Instructions, the Custodian shall settle foreign exchange contracts
or options to purchase and sell foreign currencies for spot and future delivery
on behalf of and for the account of a Fund with such currency brokers or Banking
Institutions as such Fund may determine and direct pursuant to Instructions.
If,
in its Instructions, a Fund does not direct the Custodian to utilize a
particular currency broker or Banking Institution, the Custodian is authorized
to select such currency broker or Banking Institution as it deems appropriate
to
execute the Fund's foreign currency transaction.
(3)
Each
Fund accepts full responsibility for its use of third party foreign exchange
brokers and for execution of said foreign exchange contracts and understands
that the Fund shall be responsible for any and all costs and interest charges
which may be incurred as a result of the failure or delay of its third party
broker to deliver foreign exchange unless such loss, damage, or expense is
caused by, or results from the negligence, misfeasance or misconduct of the
Custodian. The Custodian shall have no responsibility or liability with respect
to the selection of the currency brokers or Banking Institutions with which
a
Fund deals or, so long as the Custodian acts in accordance with timely
Instructions, the performance of such brokers or Banking
Institutions.
(4)
Notwithstanding anything to the contrary contained herein, upon receipt of
Instructions the Custodian may, in connection with a foreign exchange contract,
make free outgoing payments of cash in the form of U.S. Dollars or foreign
currency prior to receipt of confirmation of such foreign exchange contract
or
confirmation that the countervalue currency completing such contract has been
delivered or received.
7
(5)
The
Custodian shall not be obligated to enter into foreign exchange transactions
as
principal. However, if the Custodian has made available to a Fund its services
as a principal in foreign exchange transactions and subject to any separate
agreement between the parties relating to such transactions, the Custodian
shall
enter into foreign exchange contracts or options to purchase and sell foreign
currencies for spot and future delivery on behalf of and for the account of
the
Fund, with the Custodian as principal.
(n)
Pledges
or Loans of Securities.
(1)
Upon
receipt of Instructions from a Fund, the Custodian will release or cause to
be
released Securities held in custody to the pledgees designated in such
Instructions by way of pledge or hypothecation to secure loans incurred by
such
Fund with various lenders including but not limited to UMB Bank, n.a.; provided,
however, that the Securities shall be released only upon payment to the
Custodian of the monies borrowed, except that in cases where additional
collateral is required to secure existing borrowings, further Securities may
be
released or delivered, or caused to be released or delivered for that purpose
upon receipt of Instructions. Upon receipt of Instructions, the Custodian will
pay, but only from funds available for such purpose, any such loan upon
re-delivery to it of the Securities pledged or hypothecated therefor and upon
surrender of the note or notes evidencing such loan. In lieu of delivering
collateral to a pledgee, the Custodian, on the receipt of Instructions, shall
transfer the pledged Securities to a segregated account for the benefit of
the
pledgee.
(2)
Upon
receipt of Instructions or execution of a separate Securities Lending
Agreement,, the Custodian will release Securities held in custody to the
borrower designated in such Instructions and may, except as otherwise provided
below, deliver such Securities prior to the receipt of collateral, if any,
for
such borrowing, provided that, in case of loans of Securities held by a
Securities System that are secured by cash collateral, the Custodian's
instructions to the Securities System shall require that the Securities System
deliver the Securities of the appropriate Fund to the borrower thereof only
upon
receipt of the collateral for such borrowing. The Custodian shall have no
responsibility or liability for any loss arising from the delivery of Securities
prior to the receipt of collateral, provided the Custodian has acted in
accordance with timely Instructions. Upon receipt of Instructions and the loaned
Securities, the Custodian will release the collateral to the
borrower.
(o)
Stock
Dividends, Rights, Etc.
The
Custodian shall receive and collect all stock dividends, rights, and other
items
of like nature and, upon receipt of Instructions, take action with respect
to
the same as directed in such Instructions.
(p)
Routine
Dealings.
The
Custodian will, in general, attend to all routine and mechanical matters in
accordance with industry standards in connection with the sale, exchange,
substitution, purchase, transfer, or other dealings with Securities or other
property of each Fund except as may be otherwise provided in this Agreement
or
directed from time to time by Instructions from any particular Fund. The
Custodian may also make payments to itself or others from the Assets for
disbursements and out-of-pocket expenses incidental to handling Securities
or
other similar items relating to its duties under this Agreement, provided that
all such payments shall be accounted for to the appropriate Fund.
(q)
Collections.
The
Custodian shall (a) collect amounts due and payable to each Fund with respect
to
portfolio Securities and other Assets; (b) promptly credit to the account of
each Fund all income and other payments relating to portfolio Securities and
other Assets held by the Custodian hereunder upon Custodian's receipt of such
income or payments or as otherwise agreed in writing by the Custodian and any
particular Fund; (c) promptly endorse and deliver any instruments required
to
effect such collection; and (d) promptly execute ownership and other
certificates and affidavits for all federal, state, local and foreign tax
purposes in connection with receipt of income or other payments with respect
to
portfolio Securities and other Assets, or in connection with the transfer of
such Securities or other Assets; provided, however, that with respect to
portfolio Securities registered in so-called street name, or physical Securities
with variable interest rates, the Custodian shall use its best efforts to
collect amounts due and payable to any such Fund. The Custodian shall notify
a
Fund in writing by facsimile transmission or in such other manner as such Fund
and Custodian may agree in writing if any amount payable with respect to
portfolio Securities or other Assets is not received by the Custodian when
due.
The Custodian shall not be responsible for the collection of amounts due and
payable with respect to portfolio Securities or other Assets that are in
default.
8
(r)
Bank
Accounts.
Upon
Instructions, the Custodian shall open and operate a bank account or accounts
on
the books of the Custodian; provided that such bank account(s) shall be in
the
name of the Custodian or a nominee thereof, for the account of one or more
Funds, and shall be subject only to draft or order of the Custodian. The
responsibilities of the Custodian to any one or more such Funds for deposits
accepted on the Custodian's books shall be that of a U.S. bank for a similar
deposit.
(s)
Dividends,
Distributions and Redemptions.
To
enable
each Fund to pay dividends or other distributions to shareholders of each such
Fund and to make payment to shareholders who have requested repurchase or
redemption of their shares of each such Fund (collectively, the "Shares"),
the
Custodian shall release cash or Securities insofar as available. In the case
of
cash, the Custodian shall, upon the receipt of Instructions, transfer such
funds
by check or wire transfer to any account at any bank or trust company designated
by each such Fund in such Instructions. In the case of Securities, the Custodian
shall, upon the receipt of Special Instructions, make such transfer to any
entity or account designated by each such Fund in such Special
Instructions.
(t)
Proceeds
from Shares Sold.
The
Custodian shall receive funds representing cash payments received for shares
issued or sold from time to time by each Fund, and shall as promptly as
reasonably practicable credit such funds to the account of the appropriate
Fund.
The Custodian shall as promptly as reasonably practicable notify the appropriate
Fund of Custodian's receipt of cash in payment for shares issued by such Fund
by
facsimile transmission or in such other manner as such Fund and the Custodian
shall agree. Upon receipt of Instructions, the Custodian shall: (a) deliver
all
federal funds received by the Custodian in payment for shares as may be set
forth in such Instructions and at a time agreed upon between the Custodian
and
such Fund; and (b) make federal funds available to a Fund as of specified times
agreed upon from time to time by such Fund and the Custodian, in the amount
of
checks received in payment for shares which are deposited to the accounts of
such Fund.
(u)
Proxies
and Notices; Compliance with the Shareholders Communication Act of
1985.
The
Custodian shall deliver as promptly as practicable following receipt or cause
to
be delivered to the appropriate Fund all forms of proxies, all notices of
meetings, and any other notices or announcements affecting or relating to
Securities owned by such Fund that are received by the Custodian, any
Subcustodian, or any nominee of either of them, and, upon receipt of
Instructions, the Custodian shall execute and deliver, or cause such
Subcustodian or nominee to execute and deliver, such proxies or other
authorizations as may be required. Except as directed pursuant to Instructions,
neither the Custodian nor any Subcustodian or nominee shall vote upon any such
Securities, or execute any proxy to vote thereon, or give any consent or take
any other action with respect thereto.
The
Custodian will not release the identity of any 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 any such
Fund
unless a particular Fund directs the Custodian otherwise in
writing.
(v)
Books
and Records.
The
Custodian shall maintain such all records relating to its activities and
obligations under this Agreement in such manner as will meet the obligations
of
each Fund under the Investment Company Act of 1940, as amended (the “1940 Act”),
including, without limitation, Section 31 thereof and Rules 31a-1 and
31a-2 thereunder. In accordance with Rule 31a-3 under the 1940 Act, the
Custodian agrees to make such records relating to a Fund available upon request
by duly authorized officers, employees or agents (including independent public
accountants) of the Fund during normal business hours of the
Custodian.
9
The
Custodian shall provide accountings relating to its activities under this
Agreement as shall be agreed upon by each Fund and the Custodian.
(w)
Opinion
of Fund's Independent Certified Public Accountants.
The
Custodian shall take all reasonable action as each Fund may request to obtain
from year to year favorable opinions from each such Fund's independent certified
public accountants with respect to the Custodian's activities hereunder and
in
connection with the preparation of each such Fund's periodic reports to the
SEC
and with respect to any other requirements of the SEC.
(x)
Reports
by Independent Certified Public Accountants.
At
the
request of a Fund, the Custodian shall deliver to such Fund a written report
prepared by the Custodian's independent certified public accountants with
respect to the services provided by the Custodian under this Agreement,
including, without limitation, the Custodian's accounting system, internal
accounting control and procedures for safeguarding cash, Securities and other
Assets, including cash, Securities and other Assets deposited and/or maintained
in a Securities System or with a Subcustodian. Such report shall be of
sufficient scope and in sufficient detail as may reasonably be required by
such
Fund and as may reasonably be obtained by the Custodian.
(y)
Bills
and Other Disbursements.
Upon
receipt of Instructions, the Custodian shall pay, or cause to be paid, all
bills, statements, or other obligations of a Fund.
5. SUBCUSTODIANS.
From
time
to time, in accordance with the relevant provisions of this Agreement, (i)
the
Custodian may appoint one or more Domestic Subcustodians, Special Subcustodians
and Interim Subcustodians (each, as hereinafter defined) to act on behalf of
the
Fund; and (ii) any Domestic Subcustodian so appointed and which has been
designated as a Foreign Custody Manager (as such term is defined in Rule 17f-5
of the 0000 Xxx) by a Fund’s board (“Approved Foreign Custody Manager”) may
appoint a Foreign Subcustodian (as hereinafter defined) in accordance with
this
Section 5 and the agreement with the Foreign Custody Manager specifying the
Foreign Custody Manager’s duties (“Delegation Agreement”), provided that the
Fund’s board has approved the Delegation Agreement. For purposes of this
Agreement, all Domestic Subcustodians, Foreign Subcustodians, Special
Subcustodians and Interim Subcustodians shall be referred to collectively as
“Subcustodians”.
(a) Domestic
Subcustodians.
The
Custodian may, at any time and from time to time, appoint any bank as defined
in
Section 2(a)(5) of the 1940 Act or any trust company or other entity, any of
which meet the requirements of a custodian under Section 17(f) of the 1940
Act
and the rules and regulations thereunder, to act for the Custodian on behalf
of
any one or more Funds as a subcustodian for purposes of holding Assets of such
Fund(s) and performing other functions of the Custodian within the United States
(a “Domestic Subcustodian”). Each Fund shall approve in writing the appointment
of the proposed Domestic Subcustodian; and the Custodian’s appointment of any
such Domestic Subcustodian shall not be effective without such prior written
approval of the Fund(s). Each such duly approved Domestic Subcustodian shall
be
listed on Appendix A attached hereto, as it may be amended, from time to
time.
(b) Foreign
Subcustodians.
The
Approved Foreign Custody Manager may appoint one or more foreign subcustodians
for a Fund for purposes of performing the functions of the Custodian in
countries other than the United States of America (hereinafter referred to
as a
“Foreign Subcustodian”), in accordance with the terms of the Delegation
Agreement with respect to that Fund, and custody of the Fund’s Assets (including
foreign currencies) for which the primary market is outside the United States,
and such cash and cash equivalents as are reasonably necessary to effect the
Fund’s transactions in such investments (“Foreign Assets”), shall otherwise be
maintained in accordance with this Agreement and such Delegation Agreement.
In
each jurisdiction where an Approved Foreign Custody Manager may place and
maintain Foreign Assets under the applicable Delegation Agreement (“Applicable
Foreign Jurisdiction”), a Foreign Subcustodian may hold such Assets through
Securities Depositories and Clearing Agencies in such Applicable Foreign
Jurisdiction unless the Fund or its investment adviser has provided the
Custodian with Instructions to the contrary.
10
(c) Interim
Subcustodians.
Notwithstanding
the foregoing but subject to requirements of Sections (b) and (c) of
Rule 17f-5 under the 1940 Act governing the appointment of Foreign Custody
Managers and maintenance of the Fund’s Foreign Assets (as defined in
Rule 17f-5) with an Eligible Foreign Custodian (as defined in Rule17f-5),
in the event that a Fund shall invest in an Asset to be held in a country in
which no Foreign Subcustodian is authorized to act, the Custodian shall notify
such Fund in writing by facsimile transmission, or in such other manner as
such
Fund and the Custodian shall agree in writing, of the unavailability of an
approved Foreign Subcustodian in such country; and upon the receipt of Special
Instructions from such Fund, the Custodian shall, or shall cause its Domestic
Subcustodian to, appoint or approve an entity (referred to herein as an “Interim
Subcustodian”) designated in such Special Instructions to hold such Security or
other Assets.
(d) Special
Subcustodians.
Upon
receipt of Special Instructions, the Custodian shall, on behalf of a Fund,
appoint one or more banks, trust companies or other entities designated in
such
Special Instructions to act for the Custodian on behalf of such Fund as a
subcustodian 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; (ii) providing depository and clearing agency
services with respect to certain variable rate demand note Securities, (iii)
providing depository and clearing agency services with respect to dollar
denominated Securities, and (iv) effecting any other transactions designated
by
such Fund in such Special Instructions. Each such designated subcustodian
(hereinafter referred to as a “Special Subcustodian”) shall be listed on
Appendix A attached hereto, as it may be amended from time to time. In
connection with the appointment of any Special Subcustodian, the Custodian
shall
enter into a subcustodian agreement with the Special Subcustodian in form and
substance approved by the appropriate Fund in Special Instructions. The
Custodian shall not amend any subcustodian agreement entered into with a Special
Subcustodian, or waive any rights under such agreement, except upon prior
approval pursuant to Special Instructions.
(e)
Termination
of a Subcustodian.
The
Custodian may, at any time in its discretion upon notification to the
appropriate Fund(s), terminate any Subcustodian of such Fund(s) in accordance
with the termination provisions under the applicable subcustodian agreement,
and
upon the receipt of Special Instructions, the Custodian will terminate any
Subcustodian in accordance with the termination provisions under the applicable
subcustodian agreement.
(f)
Foreign
Custody.
Upon
request of a Fund, the Custodian shall deliver, or cause to be delivered, to
the
Fund a certificate stating: (i) the identity of each Foreign Subcustodian then
acting on behalf of the Custodian; (ii) the countries in which and the
securities depositories (“Securities Depository”) and clearing agencies
(“Clearing Agencies”) through which each such Foreign Subcustodian is then
holding cash, Securities and other Assets of the Fund; and (iii) such other
information as may be requested by such Fund, and as the Custodian shall be
reasonably able to obtain, to evidence compliance with rules and regulations
under the 1940 Act.
6.
STANDARD
OF CARE.
11
(a)
General
Standard of Care.
The
Custodian shall be liable to a Fund for all losses, damages and reasonable
costs
and expenses suffered or incurred by such Fund resulting from the negligence
or
willful misfeasance of the Custodian; provided, however, in no event shall
the
Custodian be liable for special, indirect or consequential damages arising
under
or in connection with this Agreement.
(b)
Actions
Prohibited by Applicable Law, Events Beyond Custodian's Control,
Sovereign Risk, Etc.
In
no
event shall the Custodian or any Domestic Subcustodian incur liability hereunder
(i) if the Custodian or any Subcustodian or Securities System, or any
subcustodian, Securities System, Securities Depository or Clearing Agency
utilized by the Custodian or any such Subcustodian, or any nominee of the
Custodian or any Subcustodian (individually, a "Person") is prevented, forbidden
or delayed from performing, or omits to perform, any act or thing which this
Agreement provides shall be performed or omitted to be performed, by reason
of:
(a) any provision of any present or future law or regulation or order of the
United States of America, or any state thereof, or of any foreign country,
or
political subdivision thereof or of any court of competent jurisdiction (and
neither the Custodian nor any other Person shall be obligated to take any action
contrary thereto); or (b) any event beyond the control of the Custodian or
other
Person such as armed conflict, riots, strikes, lockouts, labor disputes,
equipment or transmission failures, natural disasters, or failure of the mails,
transportation, communications or power supply; or (ii) for any loss, damage,
cost or expense resulting from "Sovereign Risk." A "Sovereign Risk" shall mean
nationalization, expropriation, currency devaluation, revaluation or
fluctuation, confiscation, seizure, cancellation, destruction or similar action
by any governmental authority, de facto or de jure; or enactment, promulgation,
imposition or enforcement by any such governmental authority of currency
restrictions, exchange controls, taxes, levies or other charges affecting a
Fund's Assets; or acts of armed conflict, terrorism, insurrection or revolution;
or any other act or event beyond the Custodian's or such other Person's
control.
(c)
Liability
for Past Records.
Neither
the Custodian nor any Domestic Subcustodian shall have any liability in respect
of any loss, damage or expense suffered by a Fund, insofar as such loss, damage
or expense arises from the performance of the Custodian or any Domestic
Subcustodian in reliance upon records that were maintained for such Fund by
entities other than the Custodian or any Domestic Subcustodian prior to the
Custodian's employment hereunder.
(d)
Advice
of Counsel.
The
Custodian and all Domestic Subcustodians shall be entitled to receive and act
upon advice of counsel of its own choosing on all matters. The Custodian and
all
Domestic Subcustodians shall be without liability for any actions taken or
omitted in good faith pursuant to the advice of counsel.
(e)
Advice
of the Fund and Others.
The
Custodian and any Domestic Subcustodian may rely upon the advice of any Fund
and
upon statements of such Fund's accountants and other persons believed by it
in
good faith to be expert in matters upon which they are consulted, and neither
the Custodian nor any Domestic Subcustodian shall be liable for any actions
taken or omitted, in good faith, pursuant to such advice or statements, subject
in all events to the standard of care in Section 6(a).
(f)
Instructions
Appearing to be Genuine.
The
Custodian and all Domestic Subcustodians shall be fully protected and
indemnified in acting as a custodian hereunder upon any Resolutions of the
Board
of Directors or Trustees, Instructions, Special Instructions, advice, notice,
request, consent, certificate, instrument or paper 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 any Fund hereunder a certificate signed
by any officer of such Fund authorized to countersign or confirm Special
Instructions; provided, however, that any such protection, indemnification
or
entitlement shall be subject to the Custodian’s compliance with Section
6(a).
12
(g)
Exceptions
from Liability.
Without
limiting the generality of any other provisions hereof, neither the Custodian
nor any Domestic Subcustodian shall be under any duty or obligation to inquire
into, nor be liable for:
(i)
the
validity of the issue of any Securities purchased by or for any Fund, the
legality of the purchase thereof or evidence of ownership required to be
received by any such Fund, or the propriety of the decision to purchase or
amount paid therefor;
(ii)
the
legality of the sale of any Securities by or for any Fund, or the propriety
of
the amount for which the same were sold; or
(iii)
any
other expenditures, encumbrances of Securities, borrowings or similar actions
with respect to any Fund's Assets;
and
may,
until notified to the contrary, presume that all Instructions or Special
Instructions received by it are not in conflict with or in any way contrary
to
any provisions of any such Fund's Declaration of Trust, Partnership Agreement,
Articles of Incorporation or By-Laws or votes or proceedings of the
shareholders, trustees, partners or directors of any such Fund, or any such
Fund's currently effective Registration Statement on file with the
SEC.
7.
LIABILITY
OF THE CUSTODIAN FOR ACTIONS OF OTHERS.
(a)
Domestic
Subcustodians
The
Custodian shall be liable for the acts or omissions of any Domestic Subcustodian
to the same extent as if such actions or omissions were performed by the
Custodian itself.
(b)
Liability
for Acts and Omissions of Foreign Subcustodians.
The
Custodian shall be liable to a Fund for any loss or damage to such Fund caused
by or resulting from the acts or omissions of any Foreign Subcustodian to the
extent that, under the terms set forth in the subcustodian agreement between
the
Custodian or a Domestic Subcustodian and such Foreign Subcustodian, the Foreign
Subcustodian has failed to perform in accordance with the standard of conduct
imposed under such subcustodian agreement and the Custodian or Domestic
Subcustodian recovers from the Foreign Subcustodian under the applicable
subcustodian agreement.
(c)
Securities
Systems, Interim Subcustodians, Special Subcustodians, Securities Depositories
and Clearing Agencies.
The
Custodian shall not be liable to any Fund for any loss, damage or expense
suffered or incurred by such Fund resulting from or occasioned by the actions
or
omissions of a Securities System, Interim Subcustodian, Special Subcustodian,
or
Securities Depository and Clearing Agency unless such loss, damage or expense
is
caused by, or results from, the negligence or willful misfeasance of the
Custodian.
(d)
Defaults
or Insolvency’s of Brokers, Banks, Etc.
The
Custodian shall not be liable for any loss, damage or expense suffered or
incurred by any Fund resulting from or occasioned by the actions, omissions,
neglects, defaults or insolvency of any broker, bank, trust company or any
other
person with whom the Custodian may deal (other than any of such entities acting
as a Subcustodian, Securities System or Securities Depository and Clearing
Agency, for whose actions the liability of the Custodian is set out elsewhere
in
this Agreement) unless such loss, damage or expense is caused by, or results
from, the negligence or willful misfeasance of the Custodian.
13
(e)
Reimbursement
of Expenses.
Each
Fund
agrees to reimburse the Custodian for all reasonable out-of-pocket expenses
incurred by the Custodian in connection with this Agreement, but excluding
salaries and usual overhead expenses.
8.
INDEMNIFICATION.
(a)
Indemnification
by Fund.
Subject
to the limitations set forth in this Agreement, each Fund agrees to indemnify
and hold harmless the Custodian and its nominees from all losses, damages and
expenses (including reasonable attorney’s fees) suffered or incurred by the
Custodian or its nominee caused by or arising from actions taken by the
Custodian, its employees or agents in the performance of its duties and
obligations under this Agreement, including, but not limited to, any
indemnification obligations undertaken by the Custodian under any relevant
subcustodian agreement; provided, however, that such indemnity shall not apply
to the extent the Custodian is liable under Sections 6 or 7 hereof.
If
any
Fund requires the Custodian to take any action with respect to Securities,
which
action involves the payment of money or which may, in the opinion of the
Custodian, result in the Custodian or its nominee assigned to such Fund being
liable for the payment of money or incurring liability of some other form,
such
Fund, as a prerequisite to requiring the Custodian to take such action, shall
provide indemnity to the Custodian in an amount and form satisfactory to
it.
(b)
Indemnification
by Custodian.
Subject
to the limitations set forth in this Agreement and in addition to the
obligations provided in Sections 6 and 7, the Custodian agrees to indemnify
and
hold harmless each Fund from all losses, damages and expenses (including
reasonable attorney’s fees) suffered or incurred by each such Fund caused by the
negligence or willful misfeasance of the Custodian.
9.
ADVANCES.
In
the
event that, pursuant to Instructions, the Custodian or any Subcustodian,
Securities System, or Securities Depository or Clearing Agency acting either
directly or indirectly under agreement with the Custodian (each of which for
purposes of this Section 9 shall be referred to as "Custodian"), makes any
payment or transfer of funds on behalf of any Fund as to which there would
be,
at the close of business on the date of such payment or transfer, insufficient
funds held by the Custodian on behalf of any such Fund, the Custodian may,
in
its discretion without further Instructions, provide an advance ("Advance")
to
any such Fund in an amount sufficient to allow the completion of the transaction
by reason of which such payment or transfer of funds is to be made. In addition,
in the event the Custodian is directed by Instructions to make any payment
or
transfer of funds on behalf of any Fund as to which it is subsequently
determined that such Fund has overdrawn its cash account with the Custodian
as
of the close of business on the date of such payment or transfer, said overdraft
shall constitute an Advance. Any Advance shall be payable by the Fund on behalf
of which the Advance was made on demand by Custodian, unless otherwise agreed
by
such Fund and the Custodian, and shall accrue interest from the date of the
Advance to the date of payment by such Fund to the Custodian at a rate agreed
upon in writing from time to time by the Custodian and such Fund. It is
understood that any transaction in respect of which the Custodian shall have
made an Advance, including but not limited to a foreign exchange contract or
transaction in respect of which the Custodian is not acting as a principal,
is
for the account of and at the risk of the Fund on behalf of which the Advance
was made, and not, by reason of such Advance, deemed to be a transaction
undertaken by the Custodian for its own account and risk. The Custodian and
each
of the Funds which are parties to this Agreement acknowledge that the purpose
of
Advances is to finance temporarily the purchase or sale of Securities for prompt
delivery in accordance with the settlement terms of such transactions or to
meet
emergency expenses not reasonably foreseeable by a Fund. The Custodian shall
promptly notify the appropriate Fund of any Advance. Such notification shall
be
sent by facsimile transmission or in such other manner as such Fund and the
Custodian may agree.
14
10.
LIENS.
The
Custodian shall have a lien on a Fund’s Assets held by the Custodian (other than
Assets held in a segregated margin account or otherwise already pledged by
the
Fund) in an amount necessary to secure payment of fees and expenses for the
services rendered to the Fund under this Agreement. If the Custodian advances
cash or securities to the Fund for any purpose or in the event that the
Custodian or its nominee shall incur or be assessed any taxes, charges,
expenses, assessments, claims or liabilities in connection with the performance
of its duties hereunder, except such as may arise from its or its nominee's
negligent action, negligent failure to act or willful misconduct, any Assets
(other than Assets held in a segregated margin account or otherwise already
pledged by the Fund) at any time held by the Custodian for a Fund in the amount
thereof shall be security therefor and the Fund hereby grants a security
interest therein to the Custodian, provided that the Custodian’s security
interest in any particular Assets shall terminate at the time the Fund pays
the
Custodian the amount of the obligation giving rise to such security interest.
A
Fund shall promptly reimburse the Custodian for any such advance of cash or
securities or any such taxes, charges, expenses, assessments, claims or
liabilities upon request for payment, but should the Fund fail to so reimburse
the Custodian, the Custodian shall be entitled to dispose of such Assets to
the
extent necessary to obtain reimbursement. The Custodian shall be entitled to
debit any cash account of the Fund with the Custodian including, without
limitation, the Custody Account, in connection with any such advance and any
interest on such advance as the Bank deems reasonable. The Custodian shall
provide a Fund with prompt subsequent notice of any charge against a cash
account hereunder and shall give at least two (2) business days prior notice
of
the liquidation or other disposition of other Assets subject to lien in
connection with satisfaction of any amount owing to the Custodian.
11.
COMPENSATION.
Each
Fund
will pay to the Custodian such compensation as is agreed to in writing by the
Custodian and each such Fund from time to time. Such compensation, together
with
all amounts for which the Custodian is to be reimbursed in accordance with
Section 7(e), shall be billed to each such Fund and paid in cash to the
Custodian.
12.
POWERS
OF ATTORNEY.
Upon
request, each Fund shall deliver to the Custodian such proxies, powers of
attorney or other instruments as may be reasonable and necessary or desirable
in
connection with the performance by the Custodian or any Subcustodian of their
respective obligations under this Agreement or any applicable subcustodian
agreement.
13.
TERMINATION
AND ASSIGNMENT.
Any
Fund
or the Custodian may terminate this Agreement with respect to that Fund by
notice in writing, delivered or mailed, postage prepaid (certified mail, return
receipt requested) to the other not less than 60 days prior to the date upon
which such termination shall take effect provided that a Fund may at any time
by
action of its Board of Trustees or Directors immediately terminate this
Agreement in the event of the appointment of a conservator or receiver for
the
Custodian by the applicable federal regulator or upon the happening of a like
event at the direction of an appropriate regulatory agency or court of competent
jurisdiction. Upon termination of this Agreement with respect to a Fund, the
Fund shall pay to the Custodian such fees as may be due the Custodian hereunder
as well as its reimbursable disbursements, costs and expenses paid or incurred.
If a successor custodian is appointed by a Fund’s Board of Trustees, the
Custodian will, upon termination, deliver to such successor custodian, at the
terminating party’s expense, duly endorsed and in the form for transfer, all
securities and other Assets of the Fund then held by it hereunder. Upon such
delivery, the Custodian shall have no further obligations or liabilities under
this Agreement except as to the final resolution of matters relating to activity
occurring prior to the effective date of termination. In connection with the
transfer of a Fund’s Assets to a successor Custodian, the Custodian agrees to
make the records relating to a Fund maintained in accordance with Section 4(v)
of this Agreement available under the terms set forth in Section 4(v). In the
event that securities and other Assets remain in the possession of the Custodian
after the date of termination hereof owing to failure of a Fund to appoint
a
successor custodian, the Custodian shall be entitled to compensation for its
services in accordance with the fee schedule most recently in effect, for such
period as the Custodian retains possession of such securities and other Assets,
and the provisions of this Agreement relating to the duties and obligations
of
the Custodian and the Fund shall remain in full force and effect for such
period.
15
This
Agreement may not be assigned by the Custodian or any Fund without the
respective consent of the other, duly authorized by a resolution by its Board
of
Directors or Trustees.
14.
ADDITIONAL
FUNDS.
An
additional Fund or Funds may become a party to this Agreement after the date
hereof by an instrument in writing to such effect signed by such Fund or Funds
and the Custodian. If this Agreement is terminated as to one or more of the
Funds (but less than all of the Funds) or if an additional Fund or Funds shall
become a party to this Agreement, there shall be delivered to each party an
Appendix B or an amended Appendix B, signed by each of the additional Funds
(if
any) and each of the remaining Funds as well as the Custodian, deleting or
adding such Fund or Funds, as the case may be. The termination of this Agreement
as to less than all of the Funds shall not affect the obligations of the
Custodian and the remaining Funds hereunder as set forth on the signature page
hereto and in Appendix B as revised from time to time.
15.
NOTICES.
As
to
each Fund, notices, requests, instructions and other writings delivered to
Adelante Funds, 000 00xx
Xxxxxx,
Xxxxx 0000, Xxxxxxx, XX 00000, postage prepaid, or to such other address as
any
particular Fund may have designated to the Custodian in writing, shall be deemed
to have been properly delivered or given to a Fund.
Notices,
requests, instructions and other writings delivered to the Securities
Administration department of the Custodian at its office at 000 Xxxxx Xxxx.,
0xx
Xxxxx, Attn: Xxxxxx Xxxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000, or to such other
addresses as the Custodian may have designated to each Fund in writing, shall
be
deemed to have been properly delivered or given to the Custodian hereunder;
provided, however, that procedures for the delivery of Instructions and Special
Instructions shall be governed by Section 2(c) hereof.
16. REPRESENTATIONS
AND WARRANTIES
(a) Representations
and Warranties of the Funds. Each Fund hereby represents and warrants that
each
of the following shall be true, correct and complete as of the date of execution
of this Agreement and, unless notice to the contrary is provided by the Fund
to
the Custodian, at all times during the term of this Agreement: (i) the Fund
is
duly organized under the laws of its jurisdiction of organization and is
registered as an open-end management investment company under the 1940 Act
or is
a portfolio series of such an entity; and (ii) the execution, deliver and
performance by the Fund of this Agreement are (A) within its power, (B) have
been duly authorized by all necessary action, and (C) will not (x) contribute
to
or result in a breach of or default under or conflict with any existing law,
order, regulation or ruling of any governmental or regulatory agency or
authority, or (y) violate any provision of the Fund’s corporate charter or any
organizational document, or bylaws, or any amendment thereof or any provision
of
its most recent Prospectus or Statement of Additional Information.
(b) Representations
and Warranties of the Custodian. The Custodian hereby represents and warrants
that each of the following shall be true, correct and complete as of the date
of
execution of this Agreement and, unless notice to the contrary is provided
by
the Custodian to the Fund, at all times during the term of this Agreement:
(i)
the Custodian is duly organized under the laws of its jurisdiction or
organization and qualifies to serve as a custodian to open-end management
investment companies under the provisions of the 1940 Act; and (ii) the
execution, delivery and performance by the Custodian of this Agreement are
(A)
within its power (B) have been duly authorized by all necessary act, and (C)
will not (x) contribute to or result in a breach of or default under or conflict
with any existing law, order, regulation or ruling of any governmental or
regulatory agency or authority, or (y) violate any provision of the Custodian’s
corporate charter or other organizational document, or bylaws, or any amendment
thereof.
16
17.
MISCELLANEOUS.
(a)
This
Agreement is executed and delivered in the State of Missouri and shall be
governed by the laws of such state.
(b)
All
of the terms and provisions of this Agreement shall be binding upon, and inure
to the benefit of, and be enforceable by the respective successors and assigns
of the parties hereto.
(c)
No
provisions of this Agreement may be amended, modified or waived, in any manner
except in writing, properly executed by both parties hereto; provided, however,
Appendix A may be amended from time to time as Domestic Subcustodians, Foreign
Subcustodians, Special Subcustodians, and Securities Depositories and Clearing
Agencies are approved or terminated according to the terms of this
Agreement.
(d) In
connection with the operation of this Agreement, the Custodian and a Fund may
agree in writing from time to time on such provisions interpretative of or
in
addition to the provisions of this Agreement as may in their joint opinion
be
consistent with the general tenor of this Agreement. No interpretive or
additional provisions made as provided in the preceding sentence shall be deemed
to be an amendment of this Agreement.
(e) 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.
(f)
This
Agreement shall be effective as of the date of execution hereof.
(g)
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.
(h)
The
following terms are defined terms within the meaning of this Agreement, and
the
definitions thereof are found in the following sections of the
Agreement:
Term
|
Section
|
Account
|
4(b)(3)(ii)
|
ADR'S
|
4(j)
|
Advance
|
9
|
Applicable
Foreign Jurisdiction
|
5(g)
|
Assets
|
2(b)
|
Authorized
Person
|
3
|
Banking
Institution
|
4(1)
|
Domestic
Subcustodian
|
5(a)
|
Foreign
Subcustodian
|
5(b)
|
Instruction
|
2(c)(1)
|
Interim
Subcustodian
|
5(c)
|
Interest
Bearing Deposit
|
4(1)
|
Liens
|
10
|
OCC
|
4(g)(1)
|
Person
|
6(b)
|
Procedural
Agreement
|
4(h)
|
SEC
|
4(b)(3)
|
Securities
|
2(a)
|
Securities
Depositories and Clearing Agencies
|
5(f)
|
Securities
System
|
4(b)(3)
|
Shares
|
4(s)
|
Sovereign
Risk
|
6(b)
|
Special
Instruction
|
2(c)(2)
|
Special
Subcustodian
|
5(d)
|
Subcustodian
|
5
|
1940
Act
|
4(v)
|
17
(i)
If
any part, term or provision of this Agreement is held to be illegal, in conflict
with any law or otherwise invalid by any court of competent jurisdiction, the
remaining portion or portions shall be considered severable and shall not be
affected, and the rights and obligations of the parties shall be construed
and
enforced as if this Agreement did not contain the particular part, term or
provision held to be illegal or invalid.
(j) This
Agreement constitutes the entire understanding and agreement of the parties
hereto with respect to the subject matter hereof, and accordingly supersedes,
as
of the effective date of this Agreement, any custodian agreement heretofore
in
effect between the Fund and the Custodian.
(k) The
Custodian expressly acknowledges the provision in the Declaration of Trust
or
equivalent instrument of each Fund organized as a business trust which limits
the personal liability of the trustees, officers, employees and shareholders
of
such Fund, and hereby agrees that they shall have recourse only to such Fund
for
payment of claims or obligations as between such Fund and the Custodian arising
out of this Agreement and shall not seek satisfaction from any trustees,
officer, employee or shareholders of such Fund. In addition, the Custodian
expressly acknowledges and agrees that each Fund listed on Appendix B
hereto is executing this Agreement in its individual capacity and that it will
not be responsible for any obligation of any other Fund under this
Agreement.
IN
WITNESS WHEREOF,
the
parties hereto have caused this Custody Agreement to be executed by their
respective duly authorized officers.
Attest:
|
By:
/s/ Xxxx X. Xxxxxx
|
|
Name:
Xxxx X. Xxxxxx
|
||
Title:
Vice President & CCO
|
||
Date:
6-13-2007
|
||
UMB
BANK, N.A.
|
||
Attest:
|
By:
/s/ Xxxxxx X. Xxxxxxx
|
|
Name:
Xxxxxx X. Xxxxxxx
|
||
Title:
Vice President
|
||
Date:
6-14-2007
|
18
APPENDIX
A
DOMESTIC
SUBCUSTODIANS:
Citibank
(Foreign Securities Only)
SECURITIES
SYSTEMS:
Federal
Book Entry
Depository
Trust Company
SPECIAL
SUBCUSTODIANS:
UMB
BANK, N.A.
|
||
By:
/s/ Xxxx X. Xxxxxx
|
By:
/s/ Xxxxxx X. Xxxxxxx
|
|
Name:
Xxxx X. Xxxxxx
|
Name:
Xxxxxx X. Xxxxxxx
|
|
Title:
Vice President & CCO
|
Title:
Vice President
|
|
Date:
6-12-2007
|
Date:
6-13-2007
|
|
19
APPENDIX
B
The
following open-end management investment companies ("Funds") are hereby made
parties to the Custody Agreement dated as of June 21, 2007, with UMB Bank,
n.a.
("Custodian") and the Adelante Funds, and agree to be bound by all the terms
and
conditions contained in said Agreement:
ADELANTE
U.S. REAL ESTATE SECURITIES FUND
Attest:
|
By:
/s/ Xxxx X. Xxxxxx
|
|
Name:
Xxxx X. Xxxxxx
|
||
Title:
Vice President & CCO
|
||
Date:
6-12-2007
|
||
UMB
BANK, N.A.
|
||
Attest:
|
By:
Xxxxxx X. Xxxxxxx
|
|
Name:
Xxxxxx X. Xxxxxxx
|
||
Title:
Vice President
|
||
Date:
6-13-2007
|
20