CUSTODY AGREEMENT
This Agreement is made as of the 15th day of November, 1993 (the "Agreement"),
by and between VARIABLE INSURANCE PRODUCT TRUST on behalf of the Funds listed at
Exhibit A (each a "Fund"), and Xxxxx Fargo Institutional Trust Company, N.A., a
special purpose trust company (the "Custodian").
WITNESSETH:
that for and in consideration of the mutual promises hereinafter set forth the
Fund and the Custodian agree as follows:
1. Definitions
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The word "securities" as used herein include stocks, shares, bonds,
debentures, notes, mortgages, or other obligations and any
certificates, receipts, warrants, options or other instruments
representing rights to receive, purchase, or subscribe for the same or
evidencing or representing any other rights or interests therein, or
in any property or assets.
The words "officers' certificate" shall mean a certification in
writing signed in the name of the Fund by those persons who are
officers of the Fund who are duly authorized to sign by the Board of
Trustees of the Fund (the "Board of Trustees").
2. Names, Titles and Signatures of Trust's Officers
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An officer of the Fund will certify to Custodian the names and
signatures of those persons authorized to sign the officers'
certificates described in Section 1 hereof, and the names of the
members of the Board of Trustees, together with any charges which may
occur from time to time.
3. Appointments of Custodian: Receipt and Disbursement of Money
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A. The Fund hereby appoints Custodian as custodian of all securities
and moneys at any time owned by the Fund during the term of this
Agreement. Custodian hereby accepts appointment as such custodian
and agrees to perform the duties thereof as hereinafter set forth.
B. Custodian shall open and maintain a separate account or accounts
in the name of the Fund. Custodian shall hold in such account or
accounts, subject to the provisions hereof, all cash received by
it from or for the account of the Fund. Custodian shall make
payments of cash to, or for the account of, the Fund from such
cash only (a) for the purchase of securities for the portfolio of
the Fund upon the delivery of such securities to Custodian,
registered in the name of the Fund or in the name of the nominee
of Custodian referred to in Section 7 hereof or in the proper form
for transfer, (b) for the purchase or redemption of shares of
beneficial ownership of the Fund, (c) for the payment of interest,
dividends, taxes,
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Trustee's fees or operating expenses (including, without
limitation, fees for legal, accounting and auditing services and
expense for printing and postage), (d) for payments in connection
with the conversion, exchange or surrender of securities owned or
subscribed to by the Fund held by or to be delivered to Custodian,
or (e) for other purposes certified by resolution of the Fund's
Board of Trustees. Before making any such payment Custodian shall
receive instructions from the Fund requesting such payment.
C. Custodian is hereby authorized to endorse and collect all checks,
drafts or other orders for the payment of money received by
Custodian for the account of the Fund.
4. Receipt of Securities
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Custodian shall hold in a separate account, pursuant to the provisions
hereof, all securities received by it from or for the account of the
Fund. All such securities are to be held or disposed of by Custodian
for, and subject at all times to the instructions of, the Fund
pursuant to the terms of this Agreement. Custodian shall have no
power or authority to assign, hypothecate, pledge or otherwise dispose
of any such securities and investments, except pursuant to the
direction of the Fund and only for the account of such Fund as set
forth in Section 5 of this Agreement.
5. Transfer, Exchange, Redelivery, etc. of Securities
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Custodian shall have power to release or deliver any securities of the
Fund held by it pursuant to this Agreement on the direction of the
Fund. Custodian agrees to transfer, exchange or deliver securities
held by it hereunder only (a) for sales of such securities for the
account of such Fund upon receipt by Custodian of payment therefor,
(b) when such securities are called, redeemed or retired or otherwise
become payable, (c) for examination by an broker selling any such
securities in accordance with "street delivery" custom, (d) in
exchange for, or upon conversion into, other securities alone or other
securities and cash whether pursuant to any plan or merger,
consolidation, reorganization, recapitalization or readjustment, or
otherwise, (e) upon conversion of such securities pursuant to their
terms into other securities, (f) upon exercise of subscription,
purchase or other similar rights represented by such securities, (g)
for the purpose of exchanging interim receipts or temporary securities
for definitive securities, (h) for other proper purposes. As to any
deliveries made by Custodian pursuant to items (a), (b), (d), (e),
(f), or (g), securities or cash receivable in exchange therefor shall
be deliverable to Custodian. Before making any such transfer,
exchange or delivery, Custodian shall receive (and may rely upon) an
officers' certificate requesting such transfer, exchange or delivery,
and stating that it is for a purpose permitted under the terms of
items (a) through (g) inclusive of this Section 5 and also, in respect
of item (h), upon receipt of an officers' certificate specifying the
securities to be delivered, setting forth the purpose for which such
delivery is to be made, declaring such purpose to be a proper purpose,
and naming the person or persons to whom delivery of such securities
shall be made; provided, however,
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that an officers' certificate need not precede any such transfer,
exchange or delivery of a money market instrument if an authorized
officer of the Fund issues appropriate oral instructions to Custodian
and an appropriate officers' certificate is received by Custodian
within two business days thereafter.
6. Custodian's Acts Without Instructions
-------------------------------------
Unless and until Custodian receives an officers' certificate or other
written instructions to the contrary, Custodian shall: (a) present for
payment all coupons and other income items held by it for the account
of the Fund which call for payment upon presentation and hold the cash
received by it upon such payment for the account of the Fund; (b)
collect interest and cash dividends received, with notice to the Fund,
for the account of the Fund; (c) hold for the account of the Fund
hereunder all stock dividends, rights and similar securities issued
with respect to any -securities held by it hereunder; and (d) execute
as agent on behalf of the Fund all necessary ownership certificates
required by the Internal Revenue Code or the Income Tax Regulations of
the United States Treasury Department or under the laws of any state
now or hereafter in effect, inserting the Fund's name on such
certificates as the owner of the securities covered thereby, to the
extent it may lawfully do so.
7. Registration of Securities
--------------------------
Except as otherwise directed by an officers' certificate Custodian
shall register all securities, except such as are in bearer form, in
nominee form, and shall execute and deliver all such certificates in
connection therewith as may be required by such laws or regulations or
under the laws of any state. Custodian shall use its best efforts to
insure that the specific securities held by it hereunder shall be at
all times identifiable in its records.
The Fund shall from time to time furnish to Custodian appropriate
instruments to enable Custodian to hold or deliver in proper form for
transfer, or to register in the name of a nominee, any securities
which it may hold for the account of the Fund and which from time to
time may be registered in the name of the Fund.
8. Voting and Other Action
-----------------------
Neither Custodian nor any nominee of Custodian shall vote any of the
securities held hereunder by or for the account of the Fund, except in
Custodian shall execute and deliver such certificates in connection
with securities delivered to it or by it under this Agreement as may
be required, under the provisions of the Internal Revenue Code and any
Regulations of the Treasury Department issued thereunder, or under the
laws of any state, to exempt from taxation any exemptable transfers
and/or deliveries of any such securities.
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9. Concerning Custodian
--------------------
Custodian shall be paid as compensation for its services pursuant to
this Agreement such compensation as may from time to time be agreed
upon in writing among the parties hereto. Until modified in writing
such compensation shall be as set forth in Exhibit B attached hereto.
Custodian shall not be liable for any action taken in good faith upon
any certificate herein described or certified copy of any resolution
of the Board of Trustees, and may rely on the genuineness of any such
document which it may in good faith believe-to have been validly
executed.
The Fund agrees to reimburse and make Custodian and its nominee whole
from all taxes, charges, expenses, assessments, claims, and
liabilities including reasonable attorney's fees) incurred or assessed
against it or by its nominee in connection with the performance of
this Agreement, except such as may arise from Custodian's or its
nominee's own negligent action, negligent failure to act or willful
misconduct. In the event of any advance of cash for any purpose made
by Custodian resulting from orders or instructions of the Fund, or in
the event that Custodian or its nominee shall incur or be assessed any
taxes, charges, expenses, assessments, claims or liabilities in
connection with the performance of this Agreement (except such as may
arise from Custodian or its nominee's own negligent action, negligent
failure to act or willful misconduct, and excluding any compensation
payable by the Fund to Custodian hereunder), any property at any time
held for the account of the Fund shall be security therefor.
Custodian shall reimburse, indemnify and make the Fund whole for any
actual loss or damages, including reasonable fees and expenses of
counsel, arising from Custodian's negligent action, negligent failure
to act or its willful misconduct.
10. Reports by Custodian
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Custodian shall furnish the Fund from time to time with a statement
summarizing all transactions and entries for the account of the Fund.
Custodian shall furnish the Fund at the end of every month with a list
of the portfolio securities held for the Fund showing the aggregate
cost of each issue. Custodian shall furnish the Fund, at the close of
each quarter of the Fund's fiscal year, with a list showing the cost
of the securities held by it for the Fund hereunder, adjusted for all
commitments confirmed by the Fund as of such close, certified by a
duly authorized officer of Custodian. The books and records of
Custodian pertaining to its actions under this Agreement shall be open
to inspection and audit at reasonable times by officers of, and
auditors employed by, the Fund.
11. Termination of Agreement
------------------------
This Agreement may be terminated by the Fund on ninety (90) days
notice, given in writing and sent by registered mail to Custodian at
0X Xxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, or to the Fund at
000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxx
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Xxxxxxxxx, Xxxxxxxxxx 00000. Upon termination of this Agreement,
pending appointment of a successor to Custodian, Custodian shall
deliver cash, securities or other property of the Fund only to a bank
(as defined in the Investment Company Act of 1940, as amended "1940
Act") located in San Francisco, California of its own selection,
having an aggregate capital, surplus and undivided profits, as shown
by its last published report of condition of not less than Two Million
Dollars ($2,000,000) as custodian for the Fund to be held under terms
similar to those of this Agreement provided, however, that Custodian
shall not be required to make any such delivery or payment until full
payment shall have been made by the Fund of all liabilities
constituting a charge on or against Custodian, and until full payment
shall have been made to Custodian of all its fees, compensation, costs
and expenses, subject to the provisions of Section 10 of this
Agreement. This Agreement may not be assigned by Custodian without the
consent of the Fund, authorized or approved by a resolution of its
Board of Trustees.
12. Deposits of Securities in Securities Depositories
-------------------------------------------------
No provision of the Agreement shall be deemed to prevent the use by
Custodian of a central securities clearing agency or securities
depository; provided, however, that Custodian and the central
securities clearing agency or securities depository meet all
applicable federal and state laws and regulations (including all
applicable requirements of the 1940 Act, as amended, and the rules and
regulations promulgated thereunder) and the Board of Trustees approves
by resolution the use of such central securities clearing agency or
securities depository.
13. Records
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To the extent that Custodian in any capacity prepares or maintains any
records required to be maintained and preserved by the Fund pursuant
to the provisions of the 1940 Act or the rules and regulations
promulgated thereunder, Custodian agrees to make any such records
available to the Fund upon request and to preserve such records for
the periods prescribed in Rule 31a-2 under the 1940 Act.
The Trust shall own and control all records generated on behalf of the
Trust as a result of services provided under this agreement. In
addition, the Trust shall have the right to inspect, audit, and/or
copy all records pertaining to the performance of services under this
agreement.
14. Miscellaneous
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This agreement has been executed on behalf of the Trust by the
undersigned officer of the Trust in his capacity as an officer of the
Trust. The obligation of this agreement shall only be binding upon
the assets and property of the relevant Fund, as provided for in the
Trust's Agreement and Declaration of Trust, and
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shall not be binding upon any trustee, officer or shareholder of the
Trust or Fund individually.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date above-written by their respective representatives
thereunto duly authorized.
Executed in several counterparts, each of which is an original.
VARIABLE INSURANCE PRODUCT
TRUST
By: /s/ R. Xxxx Xxxxxx
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Title: President
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By: /s/ Xxxxxxx X. Xxxxx, Xx.
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Title: Chief Operating Officer
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XXXXX FARGO INSTITUTIONAL TRUST
COMPANY, N.A.
By: /s/ Xxxxxx Xxxx
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Title: Principal
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By: /s/ Xxxxxx X. Xxxxx
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Title: Principal
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EXHIBIT A
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VARIABLE INSURANCE PRODUCT TRUST FUNDS
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Asset Allocation Fund
U.S. Government Allocation Fund
A-i
