CUSTODY AND INVESTMENT ACCOUNTING AGREEMENT
THIS AGREEMENT made the _____ day of _______________, 1999, by and between
INVESTORS FIDUCIARY TRUST COMPANY, a trust company chartered under the laws of
the state of Missouri, having its trust office located at 000 Xxxxxxxxxxxx
Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000 ("Custodian"), and XXXXXXXX NEW TECHNOLOGIES
FUND, INC., a Maryland corporation, having its principal office and place of
business at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Fund").
WITNESSETH:
WHEREAS, Fund desires to appoint Investors Fiduciary Trust Company as
custodian of the securities and monies of Fund's investment portfolio and as its
agent to perform certain investment accounting and recordkeeping functions; and
WHEREAS, Investors Fiduciary Trust Company is willing to accept such
appointment;
NOW THEREFORE, for and in consideration of the mutual promises contained
herein, the parties hereto, intending to be legally bound, mutually covenant and
agree as follows:
1. APPOINTMENT OF CUSTODIAN. Fund hereby constitutes and appoints Custodian
as:
A. Custodian of the securities and monies at any time owned by the Fund;
and
B. Agent to perform certain accounting and recordkeeping functions
relating to portfolio transactions required of a duly registered
investment company under Rule 31a of the Investment Company Act of 1940
(the "1940 Act") and to calculate the net asset value of the Fund.
2. REPRESENTATIONS AND WARRANTIES.
A. Fund hereby represents, warrants and acknowledges to Custodian:
1. That it is a corporation or trust (as specified above) duly
organized and existing and in good standing under the laws of its
state of organization, and that it is registered under the 1940
Act; and
2. That it has the requisite power and authority under applicable
law; its articles of incorporation and its bylaws to enter into
this Agreement; that it has taken all requisite action necessary
to appoint Custodian as custodian and investment accounting and
recordkeeping agent for the Fund; that this Agreement has been
duly executed and delivered by Fund; and that this Agreement
constitutes a legal, valid and binding obligation of Fund,
enforceable in accordance with its terms.
B. Custodian hereby represents, warrants and acknowledges to Fund:
1. That it is a trust company duly organized and existing and in good
standing under the laws of the State of Missouri; and
2. That it has the requisite power and authority under applicable
law, its charter and its bylaws to enter into and perform this
Agreement; that this Agreement has been duly executed and
delivered by Custodian; and that this Agreement constitutes a
legal, valid and binding obligation of Custodian, enforceable in
accordance with its terms.
3. DUTIES AND RESPONSIBILITIES OF CUSTODIAN.
A. Delivery of Assets. Except as permitted by the 1940 Act, Fund will
deliver or cause to be delivered to Custodian on the effective date of
this Agreement, or as soon thereafter as practicable, and from time to
time thereafter, all portfolio securities acquired by it and monies
then owned by it or from time to time coming into its possession during
the time this Agreement shall continue in effect. Custodian shall have
no responsibility or liability whatsoever for or on account of
securities or monies not so delivered.
B. Delivery of Accounts and Records. Fund shall turn over or cause to be
turned over to Custodian all of the Fund's relevant accounts and
records previously maintained. Custodian shall be entitled to rely
conclusively on the completeness and correctness of the accounts and
records turned over to it, and Fund shall indemnify and hold Custodian
harmless of and from any and all expenses, damages and losses
whatsoever arising out of or in connection with any error, omission,
inaccuracy or other deficiency of such accounts and records or in the
failure of Fund to provide, or to provide in a timely manner, any
accounts, records or information needed by the Custodian to perform its
functions hereunder.
C. Delivery of Assets to Third Parties. Custodian will receive delivery of
and keep safely the assets of Fund delivered to it from time to time
segregated in a separate account, and if Fund is comprised of more than
one portfolio of investment securities (each a "Portfolio") Custodian
shall keep the assets of each Portfolio segregated in a separate
account. Custodian will not deliver, assign, pledge or hypothecate any
such assets to any person except as permitted by the provisions of this
Agreement or any agreement executed by it according to the terms of
Section 3.S. of this Agreement. Upon delivery of any such assets to a
subcustodian pursuant to Section 3.S. of this Agreement, Custodian will
create and maintain records identifying those assets which have been
delivered to the subcustodian as belonging to the Fund, by Portfolio if
applicable. The Custodian is responsible for the safekeeping of the
securities and monies of Fund only until they have been transmitted to
and received by other persons as permitted under the terms of this
Agreement, except for
securities and monies transmitted to subcustodians appointed under
Section 3.S. of this Agreement, for which Custodian remains responsible
to the extent provided in Section 3.S. hereof. Custodian may
participate directly or indirectly through a subcustodian in the
Depository Trust Company (DTC), Treasury/Federal Reserve Book Entry
System (Fed System), Participant Trust Company (PTC) or other
depository approved by the Fund (as such entities are defined at 17 CFR
Section 270.17f-4(b)) (each a "Depository" and collectively, the
"Depositories").
D. Registration of Securities. The Custodian shall at all times hold
registered securities of the Fund in the name of the Custodian, the
Fund, or a nominee of either of them, unless specifically directed by
instructions to hold such registered securities in so-called "street
name," provided that, in any event, all such securities and other
assets shall be held in an account of the Custodian containing only
assets of the Fund, or only assets held by the Custodian as a fiduciary
or custodian for customers, and provided further, that the records of
the Custodian at all times shall indicate the Fund or other customer
for which such securities and other assets are held in such account and
the respective interests therein. If, however, the Fund directs the
Custodian to maintain securities in "street name", notwithstanding
anything contained herein to the contrary, the Custodian shall be
obligated only to utilize its best efforts to timely collect income due
the Fund on such securities and to notify the Fund of relevant
corporate actions including, without limitation, pendency of calls,
maturities, tender or exchange offers. All securities, and the
ownership thereof by Fund, which are held by Custodian hereunder,
however, shall at all times be identifiable on the records of the
Custodian. The Fund agrees to hold Custodian and its nominee harmless
for any liability as a shareholder of record of securities held in
custody.
E. Exchange of Securities. Upon receipt of instructions as defined herein
in Section 4.A, Custodian will exchange, or cause to be exchanged,
portfolio securities held by it for the account of Fund for other
securities or cash issued or paid in connection with any
reorganization, recapitalization, merger, consolidation, split-up of
shares, change of par value, conversion or otherwise, and will deposit
any such securities in accordance with the terms of any reorganization
or protective plan. Without instructions, Custodian is authorized to
exchange securities held by it in temporary form for securities in
definitive form, to effect an exchange of shares when the par value of
the stock is changed, and, upon receiving payment therefor, to
surrender bonds or other securities held by it at maturity or when
advised of earlier call for redemption, except that Custodian shall
receive instructions prior to surrendering any convertible security.
F. Purchases of Investments of the Fund - Other Than Options and Futures.
Fund will, on each business day on which a purchase of securities
(other than options and futures) shall be made by it, deliver to
Custodian instructions which shall specify with respect to each such
purchase:
1. If applicable, the name of the Portfolio making such purchase;
2. The name of the issuer and description of the security;
3. The number of shares and the principal amount purchased, and
accrued interest, if any;
4. The trade date;
5. The settlement date;
6. The purchase price per unit and the brokerage commission, taxes
and other expenses payable in connection with the purchase;
7. The total amount payable upon such purchase;
8. The name of the person from whom or the broker or dealer through
whom the purchase was made; and
9. Whether the security is to be received in certificated form or via
a specified Depository.
In accordance with such instructions, Custodian will pay for out of
monies held for the account of Fund, but only insofar as such monies
are available for such purpose, and receive the portfolio securities so
purchased by or for the account of Fund, except that Custodian may in
its sole discretion advance funds to the Fund which may result in an
overdraft because the monies held by the Custodian on behalf of the
Fund are insufficient to pay the total amount payable upon such
purchase. Except as otherwise instructed by Fund, such payment shall be
made by the Custodian only upon receipt of securities: (a) by the
Custodian; (b) by a clearing corporation of a national exchange of
which the Custodian is a member; or (c) by a Depository.
Notwithstanding the foregoing, (i) in the case of a repurchase
agreement, the Custodian may release funds to a Depository prior to the
receipt of advice from the Depository that the securities underlying
such repurchase agreement have been transferred by book-entry into the
account maintained with such Depository by the Custodian, on behalf of
its customers, provided that the Custodian's instructions to the
Depository require that the Depository make payment of such funds only
upon transfer by book-entry of the securities underlying the repurchase
agreement in such account; (ii) in the case of time deposits, call
account deposits, currency deposits and other deposits, foreign
exchange transactions, futures contracts or options, the Custodian may
make payment therefor before receipt of an advice or confirmation
evidencing said deposit or entry into such transaction; and (iii) in
the case of the purchase of securities, the settlement of which occurs
outside of the United States of America, the Custodian may make, or
cause a subcustodian appointed pursuant to Section 3.S.2. of this
Agreement to make, payment therefor in accordance with generally
accepted local custom and market practice.
G. Sales and Deliveries of Investments of the Fund - Other Than Options
and Futures. Fund will, on each business day on which a sale of
investment securities (other than options and futures) of Fund has been
made, deliver to Custodian instructions specifying with respect to each
such sale:
1. If applicable, the name of the Portfolio making such sale;
2. The name of the issuer and description of the securities;
3. The number of shares and principal amount sold, and accrued
interest, if any;
4. The date on which the securities sold were purchased or other
information identifying the securities sold and to be delivered;
5. The trade date;
6. The settlement date;
7. The sale price per unit and the brokerage commission, taxes or
other expenses payable in connection with such sale;
8. The total amount to be received by Fund upon such sale; and
9. The name and address of the broker or dealer through whom or
person to whom the sale was made.
In accordance with such instructions, Custodian will deliver or cause
to be delivered the securities thus designated as sold for the account
of Fund to the broker or other person specified in the instructions
relating to such sale. Except as otherwise instructed by Fund, such
delivery shall be made upon receipt of: (a) payment therefor in such
form as is satisfactory to the Custodian; (b) credit to the account of
the Custodian with a clearing corporation of a national securities
exchange of which the Custodian is a member; or (c) credit to the
account of the Custodian, on behalf of its customers, with a
Depository. Notwithstanding the foregoing: (i) in the case of
securities held in physical form, such securities shall be delivered in
accordance with "street delivery custom" to a broker or its clearing
agent; or (ii) in the case of the sale of securities, the settlement of
which occurs outside of the United States of America, the Custodian may
make, or cause a subcustodian appointed pursuant to Section 3.S.2. of
this Agreement to make, such delivery upon payment therefor in
accordance with generally accepted local custom and market practice.
H. Purchases or Sales of Options and Futures. Fund will, on each business
day on which a purchase or sale of the following options and/or futures
shall be made by it, deliver to Custodian instructions which shall
specify with respect to each such purchase or sale:
1. If applicable, the name of the Portfolio making such purchase or
sale;
2. Security Options
a. The underlying security;
b. The price at which purchased or sold;
c. The expiration date;
d. The number of contracts;
e. The exercise price;
f. Whether the transaction is an opening, exercising, expiring
or closing transaction;
g. Whether the transaction involves a put or call;
h. Whether the option is written or purchased;
i. Market on which option traded; and
j. Name and address of the broker or dealer through whom the
sale or purchase was made.
3. Options on Indices
a. The index;
b. The price at which purchased or sold;
c. The exercise price;
d. The premium;
e. The multiple;
f. The expiration date;
g. Whether the transaction is an opening, exercising, expiring
or closing transaction;
h. Whether the transaction involves a put or call;
i. Whether the option is written or purchased; and
j. The name and address of the broker or dealer through whom the
sale or purchase was made, or other applicable settlement
instructions.
4. Security Index Futures Contracts
a. The last trading date specified in the contract and, when
available, the closing level, thereof;
b. The index level on the date the contract is entered into;
c. The multiple;
d. Any margin requirements;
e. The need for a segregated margin account (in addition to
instructions, and if not already in the possession of
Custodian, Fund shall deliver a substantially complete and
executed custodial safekeeping account and procedural
agreement which shall be incorporated by reference into this
Custody Agreement); and
f. The name and address of the futures commission merchant
through whom the sale or purchase was made, or other
applicable settlement instructions.
5. Options on Index Future Contracts
a. The underlying index future contract;
b. The premium;
c. The expiration date;
d. The number of options;
e. The exercise price;
f. Whether the transaction involves an opening, exercising,
expiring or closing transaction;
g. Whether the transaction involves a put or call;
h. Whether the option is written or purchased; and
i. The market on which the option is traded.
I. Securities Pledged or Loaned. If specifically allowed for in the
prospectus of Fund, and subject to such additional terms and conditions
as Custodian may require:
1. Upon receipt of instructions, Custodian will release or cause to
be released securities held in custody to the pledgee designated
in such instructions by way of pledge or hypothecation to secure
any loan incurred by Fund; provided, however, that the securities
shall be released only upon payment to Custodian of the monies
borrowed, except that in cases where additional collateral is
required to secure a borrowing already made, further securities
may be released or caused to be released for that purpose upon
receipt of instructions. Upon receipt of instructions, Custodian
will pay, but only from funds available for such purpose, any such
loan upon redelivery to it of the securities pledged or
hypothecated therefor and upon surrender of the note or notes
evidencing such loan.
2. Upon receipt of instructions, Custodian will release securities
held in custody to the borrower designated in such instructions;
provided, however, that the securities will be released only upon
deposit with Custodian of full cash collateral as specified in
such instructions, and that Fund will retain the right to any
dividends, interest or distribution on such loaned securities.
Upon receipt of instructions and the loaned securities, Custodian
will release the cash collateral to the borrower.
J. Routine Matters. Custodian will, in general, attend to all routine and
mechanical matters in connection with the sale, exchange, substitution,
purchase, transfer, or other dealings with securities or other property
of Fund except as may be otherwise provided in this Agreement or
directed from time to time by the Fund in writing.
K. Deposit Accounts. Custodian will open and maintain one or more special
purpose deposit accounts in the name of Custodian ("Accounts"), subject
only to draft or order by Custodian upon receipt of instructions. All
monies received by Custodian from or for the account of Fund shall be
deposited in said Accounts. Barring events not in the control of the
Custodian such as strikes, lockouts or labor disputes, riots, war or
equipment or transmission failure or damage, fire, flood, earthquake or
other natural disaster, action or inaction of governmental authority or
other causes beyond its control, at 9:00 a.m., Kansas City time, on the
second business day after deposit of any check into an Account,
Custodian agrees to make Fed Funds available to the Fund in the amount
of the check. Deposits made by Federal Reserve wire will be available
to the Fund immediately and ACH wires will be available to the Fund on
the next business day. Income earned on the portfolio securities will
be credited to the Fund based on the schedule attached as Exhibit A,
except that income earned on portfolio securities held by domestic
subcustodians other than State Street will be
credited when received. The Custodian will be entitled to reverse any
credited amounts where credits have been made and monies are not
finally collected. If monies are collected after such reversal, the
Custodian will credit the Fund in that amount. Custodian may open and
maintain Accounts in such banks or trust companies as may be designated
by it or by Fund in writing, all such Accounts, however, to be in the
name of Custodian and subject only to its draft or order. Funds
received and held for the account of different Portfolios shall be
maintained in separate Accounts established for each Portfolio.
L. Income and Other Payments to Fund. Custodian will:
1. Collect, claim and receive and deposit for the account of Fund all
income and other payments which become due and payable on or after
the effective date of this Agreement with respect to the
securities deposited under this Agreement, and credit the account
of Fund in accordance with the schedule attached hereto as Exhibit
A. If, for any reason, the Fund is credited with income that is
not subsequently collected, Custodian may reverse that credited
amount.
2. Execute ownership and other certificates and affidavits for all
federal, state and local tax purposes in connection with the
collection of bond and note coupons; and
3. Take such other action as may be necessary or proper in connection
with:
a. the collection, receipt and deposit of such income and other
payments, including but not limited to the presentation for
payment of:
1. all coupons and other income items requiring
presentation; and
2. all other securities which may mature or be called,
redeemed, retired or otherwise become payable and
regarding which the Custodian has actual knowledge, or
should reasonably be expected to have knowledge; and
b. the endorsement for collection, in the name of Fund, of all
checks, drafts or other negotiable instruments.
Custodian, however, will not be required to institute suit or take
other extraordinary action to enforce collection except upon
receipt of instructions and upon being indemnified to its
satisfaction against the costs and expenses of such suit or other
actions. Custodian will receive, claim and collect all stock
dividends, rights and other similar items and will deal with the
same pursuant to instructions.
M. Payment of Dividends and Other Distributions. On the declaration of any
dividend or other distribution on the shares of capital stock of Fund
("Fund Shares") by the Board of Directors of Fund, Fund shall deliver
to Custodian instructions with respect thereto. On the date specified
in such instructions for the payment of such dividend or other
distribution, Custodian will pay out of the monies held for the account
of Fund, insofar as the same shall be available for such purposes, and
credit to the account of the Dividend Disbursing Agent for Fund, such
amount as may be specified in such instructions.
N. Shares of Fund Purchased by Fund. Whenever any Fund Shares are
repurchased or redeemed by Fund, Fund or its agent shall advise
Custodian of the aggregate dollar amount to be paid for such shares and
shall confirm such advice in writing. Upon receipt of such advice,
Custodian shall charge such aggregate dollar amount to the account of
Fund and either deposit the same in the account maintained for the
purpose of paying for the repurchase or redemption of Fund Shares or
deliver the same in accordance with such advice. Custodian shall not
have any duty or responsibility to determine that Fund Shares have been
removed from the proper shareholder account or accounts or that the
proper number of Fund Shares have been cancelled and removed from the
shareholder records.
O. Shares of Fund Purchased from Fund. Whenever Fund Shares are purchased
from Fund, Fund will deposit or cause to be deposited with Custodian
the amount received for such shares. Custodian shall not have any duty
or responsibility to determine that Fund Shares purchased from Fund
have been added to the proper shareholder account or accounts or that
the proper number of such shares have been added to the shareholder
records.
P. Proxies and Notices. Custodian will promptly deliver or mail or have
delivered or mailed to Fund all proxies properly signed, all notices of
meetings, all proxy statements and other notices, requests or
announcements affecting or relating to securities held by Custodian for
Fund and will, upon receipt of instructions, execute and deliver or
cause its nominee to execute and deliver or mail or have delivered or
mailed such proxies or other authorizations as may be required. Except
as provided by this Agreement or pursuant to instructions hereafter
received by Custodian, neither it nor its nominee will exercise any
power inherent in any such securities, including any power to vote the
same, or execute any proxy, power of attorney, or other similar
instrument voting any of such securities, or give any consent, approval
or waiver with respect thereto, or take any other similar action.
Q. Disbursements. Custodian will pay or cause to be paid, insofar as funds
are available for the purpose, bills, statements and other obligations
of Fund (including but not limited to obligations in connection with
the conversion, exchange or surrender of securities owned by Fund,
interest charges, dividend disbursements, taxes, management fees,
custodian fees, legal fees, auditors' fees, transfer agents'
fees, brokerage commissions, compensation to personnel, and other
operating expenses of Fund) pursuant to instructions of Fund setting
forth the name of the person to whom payment is to be made, the amount
of the payment, and the purpose of the payment.
R. Daily Statement of Accounts. Custodian will, within a reasonable time,
render to Fund a detailed statement of the amounts received or paid and
of securities received or delivered for the account of Fund during each
business day. Custodian will, from time to time, upon request by Fund,
render a detailed statement of the securities and monies held for Fund
under this Agreement, and Custodian will maintain such books and
records as are necessary to enable it to do so. Custodian will permit
such persons as are authorized by Fund, including Fund's independent
public accountants, reasonable access to such records or will provide
reasonable confirmation of the contents of such records, and if
demanded, Custodian will permit federal and state regulatory agencies
to examine the securities, books and records. Upon the written
instructions of Fund or as demanded by federal or state regulatory
agencies, Custodian will instruct any subcustodian to permit such
persons as are authorized by Fund, including Fund's independent public
accountants, reasonable access to such records or to provide reasonable
confirmation of the contents of such records, and to permit such
agencies to examine the books, records and securities held by such
subcustodian which relate to Fund. Fund will be entitled to receive
reports produced by the System, including, without limitation, those
listed on Exhibit B hereto.
S. Appointment of Subcustodians
1. Notwithstanding any other provisions of this Agreement, all or any
of the monies or securities of Fund may be held in Custodian's own
custody or in the custody of one or more other banks or trust
companies acting as subcustodians as may be selected by Custodian.
Any such subcustodian selected by the Custodian must have the
qualifications required for a custodian under the 1940 Act, as
amended. Custodian shall be responsible to the Fund for any loss,
damage or expense suffered or incurred by the Fund resulting from
the actions or omissions of any subcustodians selected and
appointed by Custodian (except subcustodians appointed at the
request of Fund and as provided in Subsection 2 below) to the same
extent Custodian would be responsible to the Fund under Section 5.
of this Agreement if it committed the act or omission itself. Upon
request of the Fund, Custodian shall be willing to contract with
other subcustodians reasonably acceptable to the Custodian for
purposes of (i) effecting third-party repurchase transactions with
banks, brokers, dealers, or other entities through the use of a
common custodian or subcustodian, or (ii) providing depository and
clearing agency services with respect to certain variable rate
demand note securities, or (iii) for other reasonable purposes
specified by Fund; provided, however, that the Custodian shall be
responsible to the Fund for any loss,
damage or expense suffered or incurred by the Fund resulting from
the actions or omissions of any such subcustodian only to the same
extent such subcustodian is responsible to the Custodian. The Fund
shall be entitled to review the Custodian's contracts with any
such subcustodians appointed at the request of Fund. Custodian
shall be responsible to the Fund for any loss, damage or expense
suffered or incurred by the Fund resulting from the actions or
omissions of any Depository only to the same extent such
Depository is responsible to Custodian.
2. Notwithstanding any other provisions of this Agreement, Fund's
foreign securities (as defined in Rule 17f-5(c)(1) under the 0000
Xxx) and Fund's cash or cash equivalents, in amounts deemed by the
Fund to be reasonably necessary to effect Fund's foreign
securities transactions, may be held in the custody of one or more
banks or trust companies acting as subcustodians, and thereafter,
pursuant to a written contract or contracts as approved by Fund's
Board of Directors, may be transferred to accounts maintained by
any such subcustodian with eligible foreign custodians, as defined
in Rule 17f-5(c)(2). Custodian shall be responsible to the Fund
for any loss, damage or expense suffered or incurred by the Fund
resulting from the actions or omissions of any foreign
subcustodian only to the same extent the foreign subcustodian is
liable to the domestic subcustodian with which the Custodian
contracts for foreign subcustody purposes.
T. Accounts and Records. Custodian will prepare and maintain, with the
direction and as interpreted by the Fund, Fund's accountants and/or
other advisors, in complete, accurate and current form all accounts and
records (i) required to be maintained by Fund with respect to portfolio
transactions under Rule 31a of the 1940 Act, (ii) required to be
maintained as a basis for calculation of the Fund's net asset value,
and (iii) as otherwise agreed upon between the parties. Custodian will
preserve said records in the manner and for the periods prescribed in
the 1940 Act or for such longer period as is agreed upon by the
parties. Custodian relies upon Fund to furnish, in writing or its
electronic or digital equivalent, accurate and timely information
needed by Custodian to complete Fund's records and perform daily
calculation of the Fund's net asset value. Custodian shall incur no
liability and Fund shall indemnify and hold harmless Custodian from and
against any liability arising from any failure of Fund to furnish such
information in a timely and accurate manner, even if Fund subsequently
provides accurate but untimely information. It shall be the
responsibility of Fund to furnish Custodian with the declaration,
record and payment dates and amounts of any dividends or income and any
other special actions required concerning each of its securities when
such information is not readily available from generally accepted
securities industry services or publications.
U. Accounts and Records Property of Fund. Custodian acknowledges that all
of the accounts and records maintained by Custodian pursuant to this
Agreement are the property of Fund, and will be made available to Fund
for inspection or reproduction within a reasonable period of time, upon
demand. Custodian will assist Fund's independent auditors, or upon
approval of Fund, or upon demand, any regulatory body, in any requested
review of Fund's accounts and records but shall be reimbursed by Fund
for all expenses and employee time invested in any such review outside
of routine and normal periodic reviews. Upon receipt from Fund of the
necessary information or instructions, Custodian will supply
information from the books and records it maintains for Fund that Fund
needs for tax returns, questionnaires, periodic reports to shareholders
and such other reports and information requests as Fund and Custodian
shall agree upon from time to time.
V. Adoption of Procedures. Custodian and Fund hereby adopt the Funds
Transfer Operating Guidelines attached hereto. Custodian and Fund may
from time to time adopt procedures as they agree upon, and Custodian
may conclusively assume that no procedure approved or directed by Fund
or its accountants or other advisors conflicts with or violates any
requirements of its prospectus, articles of incorporation, bylaws, any
applicable law, rule or regulation, or any order, decree or agreement
by which Fund may be bound. Fund will be responsible to notify
Custodian of any changes in statutes, regulations, rules, requirements
or policies which might necessitate changes in Custodian's
responsibilities or procedures.
W. Calculation of Net Asset Value. Custodian will calculate Fund's net
asset value, in accordance with Fund's prospectus. Custodian will price
the securities and foreign currency holdings of Fund for which market
quotations are available by the use of outside services designated by
Fund which are normally used and contracted with for this purpose; all
other securities and foreign currency holdings will be priced in
accordance with Fund's instructions. Custodian will have no
responsibility for the accuracy of the prices quoted by these outside
services or for the information supplied by Fund or for acting upon
such instructions.
X. Advances. In the event Custodian or any subcustodian shall, in its sole
discretion, advance cash or securities for any purpose (including but
not limited to securities settlements, purchase or sale of foreign
exchange or foreign exchange contracts and assumed settlement) for the
benefit of any Portfolio, the advance shall be payable by the Fund on
demand. Any such cash advance shall be subject to an overdraft charge
at the rate set forth in the then-current fee schedule from the date
advanced until the date repaid. As security for each such advance, Fund
hereby grants Custodian and such subcustodian a lien on and security
interest in all property at any time held for the account of the
applicable Portfolio, including without limitation all assets acquired
with the amount advanced. Should the Fund fail to promptly repay the
advance, the Custodian and such subcustodian shall be entitled to
utilize available
cash and to dispose of such Portfolio's assets pursuant to applicable
law to the extent necessary to obtain reimbursement of the amount
advanced and any related overdraft charges.
Y. Exercise of Rights; Tender Offers. Upon receipt of instructions, the
Custodian shall: (a) deliver warrants, puts, calls, rights or similar
securities to the issuer or trustee thereof, or to the agent of such
issuer or trustee, for the purpose of exercise or sale, provided that
the new securities, cash or other assets, if any, are to be delivered
to the Custodian; and (b) deposit securities upon invitations for
tenders thereof, provided that the consideration for such securities is
to be paid or delivered to the Custodian or the tendered securities are
to be returned to the Custodian.
4. INSTRUCTIONS.
A. The term "instructions", as used herein, means written (including
telecopied or telexed) or oral instructions which Custodian reasonably
believes were given by a designated representative of Fund. Fund shall
deliver to Custodian, prior to delivery of any assets to Custodian and
thereafter from time to time as changes therein are necessary, written
instructions naming one or more designated representatives to give
instructions in the name and on behalf of Fund, which instructions may
be received and accepted by Custodian as conclusive evidence of the
authority of any designated representative to act for Fund and may be
considered to be in full force and effect (and Custodian will be fully
protected in acting in reliance thereon) until receipt by Custodian of
notice to the contrary. Unless such written instructions delegating
authority to any person to give instructions specifically limit such
authority to specific matters or require that the approval of anyone
else will first have been obtained, Custodian will be under no
obligation to inquire into the right of such person, acting alone, to
give any instructions whatsoever which Custodian may receive from such
person. If Fund fails to provide Custodian any such instructions naming
designated representatives, any instructions received by Custodian from
a person reasonably believed to be an appropriate representative of
Fund shall constitute valid and proper instructions hereunder.
"Designated representatives" of Fund may include its employees and
agents, including investment managers and their employees.
B. No later than the next business day immediately following each oral
instruction, Fund will send Custodian written confirmation of such oral
instruction. At Custodian's sole discretion, Custodian may record on
tape, or otherwise, any oral instruction whether given in person or via
telephone, each such recording identifying the date and the time of the
beginning and ending of such oral instruction.
C. If Custodian shall provide Fund direct access to any computerized
recordkeeping and reporting system used hereunder or if Custodian and
Fund shall agree to utilize any electronic system of communication,
Fund shall be fully responsible for any and all consequences of the use
or misuse of the terminal device, passwords, access instructions and
other means of access to such system(s) which are utilized by, assigned
to or otherwise made available to the Fund. Fund agrees to implement
and enforce appropriate security policies and procedures to prevent
unauthorized or improper access to or use of such system(s). Custodian
shall be fully protected in acting hereunder upon any instructions,
communications, data or other information received by Custodian by such
means as fully and to the same effect as if delivered to Custodian by
written instrument signed by the requisite authorized representative(s)
of Fund. Fund shall indemnify and hold Custodian harmless from and
against any and all losses, damages, costs, charges, counsel fees,
payments, expenses and liability which may be suffered or incurred by
Custodian as a result of the use or misuse, whether authorized or
unauthorized, of any such system(s) by Fund or by any person who
acquires access to such system(s) through the terminal device,
passwords, access instructions or other means of access to such
system(s) which are utilized by, assigned to or otherwise made
available to the Fund, except to the extent attributable to any
negligence or willful misconduct by Custodian.
5. LIMITATION OF LIABILITY OF CUSTODIAN.
A. Custodian shall at all times use reasonable care and due diligence and
act in good faith in performing its duties under this Agreement.
Custodian shall not be responsible for, and the Fund shall indemnify
and hold Custodian harmless from and against, any and all losses,
damages, costs, charges, counsel fees, payments, expenses and liability
which may be asserted against Custodian, incurred by Custodian or for
which Custodian may be held to be liable, arising out of or
attributable to:
1. All actions taken by Custodian pursuant to this Agreement or any
instructions provided to it hereunder, provided that Custodian has
acted in good faith and with due diligence and reasonable care;
and
2. The Fund's refusal or failure to comply with the terms of this
Agreement (including without limitation the Fund's failure to pay
or reimburse Custodian under this indemnification provision), the
Fund's negligence or willful misconduct, or the failure of any
representation or warranty of the Fund hereunder to be and remain
true and correct in all respects at all times.
B. Custodian may request and obtain at the expense of Fund the advice and
opinion of counsel for Fund or of its own counsel with respect to
questions or matters of law, and it shall be without liability to Fund
for any action taken or omitted by it in good faith, in conformity with
such advice or opinion. If Custodian reasonably believes that it could
not prudently act according to the instructions of the Fund or the
Fund's accountants or counsel, it may in its discretion, with notice to
the Fund, not act according to such instructions.
C. Custodian may rely upon the advice and statements of Fund, Fund's
accountants and officers or other authorized individuals, and other
persons believed by it in good faith to be expert in matters upon which
they are consulted, and Custodian shall not be liable for any actions
taken, in good faith, upon such advice and statements.
D. If Fund requests Custodian in any capacity to take any action which
involves the payment of money by Custodian, or which might make it or
its nominee liable for payment of monies or in any other way, Custodian
shall be indemnified and held harmless by Fund against any liability on
account of such action; provided, however, that nothing herein shall
obligate Custodian to take any such action except in its sole
discretion.
E. Custodian shall be protected in acting as custodian hereunder upon any
instructions, advice, notice, request, consent, certificate or other
instrument or paper appearing to it to be genuine and to have been
properly executed. Custodian shall be entitled to receive upon request
as conclusive proof of any fact or matter required to be ascertained
from Fund hereunder a certificate signed by an officer or designated
representative of Fund. Fund shall also provide Custodian instructions
with respect to any matter concerning this Agreement requested by
Custodian.
F. Custodian shall be under no duty or obligation to inquire into, and
shall not be liable for:
1. The validity of the issue of any securities purchased by or for
Fund, the legality of the purchase of any securities or foreign
currency positions or evidence of ownership required by Fund to be
received by Custodian, or the propriety of the decision to
purchase or amount paid therefor;
2. The legality of the sale of any securities or foreign currency
positions by or for Fund, or the propriety of the amount for which
the same are sold;
3. The legality of the issue or sale of any Fund Shares, or the
sufficiency of the amount to be received therefor;
4. The legality of the repurchase or redemption of any Fund Shares,
or the propriety of the amount to be paid therefor; or
5. The legality of the declaration of any dividend by Fund, or the
legality of the issue of any Fund Shares in payment of any stock
dividend.
G. Custodian shall not be liable for, or considered to be Custodian of,
any money represented by any check, draft, wire transfer, clearinghouse
funds, uncollected funds, or instrument for the payment of money to be
received by it on behalf of Fund until Custodian actually receives such
money; provided, however, that it shall advise Fund promptly if it
fails to receive any such money in the ordinary course of business and
shall cooperate with Fund toward the end that such money shall be
received.
H. Except as provided in Section 3.S., Custodian shall not be responsible
for loss occasioned by the acts, neglects, defaults or insolvency of
any broker, bank, trust company, or any other person with whom
Custodian may deal.
I. Custodian shall not be responsible or liable for the failure or delay
in performance of its obligations under this Agreement, or those of any
entity for which it is responsible hereunder, arising out of or caused,
directly or indirectly, by circumstances beyond the affected entity's
reasonable control, including, without limitation: any interruption,
loss or malfunction of any utility, transportation, computer (hardware
or software) or communication service; inability to obtain labor,
material, equipment or transportation, or a delay in mails;
governmental or exchange action, statute, ordinance, rulings,
regulations or direction; war, strike, riot, emergency, civil
disturbance, terrorism, vandalism, explosions, labor disputes, freezes,
floods, fires, tornados, acts of God or public enemy, revolutions, or
insurrection.
J. EXCEPT FOR VIOLATIONS OF SECTION 9, IN NO EVENT AND UNDER NO
CIRCUMSTANCES SHALL EITHER PARTY TO THIS AGREEMENT BE LIABLE TO ANYONE,
INCLUDING, WITHOUT LIMITATION TO THE OTHER PARTY, FOR CONSEQUENTIAL,
SPECIAL OR PUNITIVE DAMAGES FOR ANY ACT OR FAILURE TO ACT UNDER ANY
PROVISION OF THIS AGREEMENT EVEN IF ADVISED OF THIS POSSIBILITY
THEREOF.
6. COMPENSATION. In consideration for its services hereunder as Custodian and
investment accounting and recordkeeping agent, Fund will pay to Custodian
such compensation as shall be set forth in a separate fee schedule to be
agreed to by Fund and Custodian from time to time. A copy of the initial
fee schedule is attached hereto and incorporated herein by reference.
Custodian shall also be entitled to receive, and Fund agrees to pay to
Custodian, on demand, reimbursement for Custodian's cash disbursements and
reasonable out-of-pocket costs and expenses, including attorney's fees,
incurred by Custodian in connection with the performance of services
hereunder. Custodian may charge such compensation against monies held by it
for the account of Fund. Custodian will also be entitled to charge against
any monies held by it for the account of Fund the amount of any loss,
damage, liability, advance, overdraft or expense for which it shall be
entitled to reimbursement from Fund, including but not limited to fees and
expenses due to Custodian for other services provided to the Fund by
Custodian. Custodian will be entitled to reimbursement by the Fund for the
losses, damages, liabilities, advances, overdrafts and expenses of
subcustodians only to the extent that (i) Custodian would have been
entitled to reimbursement hereunder if it had incurred the same itself
directly, and (ii) Custodian is obligated to reimburse the subcustodian
therefor.
7. TERM AND TERMINATION. The initial term of this Agreement shall be for a
period of one (1) year. Thereafter, either party to this Agreement may
terminate the same by notice in writing, delivered or mailed, postage
prepaid, to the other party hereto and received not less than ninety (90)
days prior to the date upon which such termination will take effect. If the
Custodian terminates this Agreement, the Fund may extend the effective date
of the termination ninety (90) days by written request to the Custodian
thirty (30) days prior to the end of the initial ninety (90) days notice
period unless the Custodian in good faith could not perform the duties
hereunder. Upon termination of this Agreement, Fund will pay Custodian its
fees and compensation due hereunder and its reimbursable disbursements,
costs and expenses paid or incurred to such date and Fund shall designate a
successor custodian by notice in writing to Custodian by the termination
date. In the event no written order designating a successor custodian has
been delivered to Custodian on or before the date when such termination
becomes effective, then Custodian may, at its option, deliver the
securities, funds and properties of Fund to a bank or trust company at the
selection of Custodian, and meeting the qualifications for custodian set
forth in the 1940 Act and having not less that Two Million Dollars
($2,000,000) aggregate capital, surplus and undivided profits, as shown by
its last published report, or apply to a court of competent jurisdiction
for the appointment of a successor custodian or other proper relief, or
take any other lawful action under the circumstances; provided, however,
that Fund shall reimburse Custodian for its costs and expenses, including
reasonable attorney's fees, incurred in connection therewith. Custodian
will, upon termination of this Agreement and payment of all sums due to
Custodian from Fund hereunder or otherwise, deliver to the successor
custodian so specified or appointed, or as specified by the court, at
Custodian's office, all securities then held by Custodian hereunder, duly
endorsed and in form for transfer, and all funds and other properties of
Fund deposited with or held by Custodian hereunder, and Custodian will
co-operate in effecting changes in book-entries at all Depositories. Upon
delivery to a successor custodian or as specified by the court, Custodian
will have no further obligations or liabilities under this Agreement.
Thereafter such successor will be the successor custodian under this
Agreement and will be entitled to reasonable compensation for its services.
In the event that securities, funds and other properties remain in the
possession of the Custodian after the date of termination hereof owing to
failure of the Fund to appoint a successor custodian, the Custodian shall
be entitled to compensation as provided in the then-current fee schedule
hereunder for its services during such period as the Custodian retains
possession of such securities, funds and other properties, and the
provisions of this Agreement relating to the duties and obligations of the
Custodian shall remain in full force and effect.
8. NOTICES. Notices, requests, instructions and other writings addressed to
Fund at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other address
as Fund may have designated to Custodian in writing, will be deemed to have
been properly given to Fund hereunder; and notices, requests, instructions
and other writings addressed to Custodian at its offices at 000
Xxxxxxxxxxxx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000, Attention: Custody
Department, or to such other address as it may have designated to Fund in
writing, will be deemed to have been properly given to Custodian hereunder.
9. CONFIDENTIALITY.
A. Fund shall preserve the confidentiality of the computerized investment
portfolio recordkeeping and accounting system used by Custodian (the
"Portfolio Accounting System") and the tapes, books, reference manuals,
instructions, records, programs, documentation and information of, and
other materials relevant to, the Portfolio Accounting System and the
business of Custodian ("Confidential Information"). Fund agrees that it
will not voluntarily disclose any such Confidential Information to any
other person other than its own employees who reasonably have a need to
know such information pursuant to this Agreement. Fund shall return all
such Confidential Information to Custodian upon termination or
expiration of this Agreement.
B. Fund has been informed that the Portfolio Accounting System is licensed
for use by Custodian from a third party ("Licensor"), and Fund
acknowledges that Custodian and Licensor have proprietary rights in and
to the Portfolio Accounting System and all other Custodian or Licensor
programs, code, techniques, know-how, data bases, supporting
documentation, data formats, and procedures, including without
limitation any changes or modifications made at the request or expense
or both of Fund (collectively, the "Protected Information"). Fund
acknowledges that the Protected Information constitutes confidential
material and trade secrets of Custodian and Licensor. Fund shall
preserve the confidentiality of the Protected Information, and Fund
hereby acknowledges that any unauthorized use, misuse, disclosure or
taking of Protected Information, residing or existing internal or
external to a computer, computer system, or computer network, or the
knowing and unauthorized accessing or causing to be accessed of any
computer, computer system, or computer network, may be subject to civil
liabilities and criminal penalties under applicable law. Fund shall so
inform employees and agents who have access to the Protected
Information or to any computer equipment capable of accessing the same.
Licensor is intended to be and shall be a third party beneficiary of
the Fund's obligations and undertakings contained in this paragraph.
10. MULTIPLE PORTFOLIOS. If Fund is comprised of more than one Portfolio:
A. Each Portfolio shall be regarded for all purposes hereunder as a
separate party apart from each other Portfolio. Unless the context
otherwise requires, with respect to every transaction covered by this
Agreement, every reference herein to the Fund shall be deemed to relate
solely to the particular Portfolio to which such transaction relates.
Under no circumstances shall the rights, obligations or remedies with
respect to a particular Portfolio constitute a right, obligation or
remedy applicable to any other Portfolio. The use of this single
document to memorialize the separate agreement of each Portfolio is
understood to be for clerical convenience only and shall not constitute
any basis for joining the Portfolios for any reason.
B. Additional Portfolios may be added to this Agreement, provided that
Custodian consents to such addition. Rates or charges for each
additional Portfolio shall be as agreed upon by Custodian and Fund in
writing.
11. MISCELLANEOUS.
C. This Agreement shall be construed according to, and the rights and
liabilities of the parties hereto shall be governed by, the laws of the
State of Missouri, without reference to the choice of laws principles
thereof.
D. All terms and provisions of this Agreement shall be binding upon, inure
to the benefit of and be enforceable by the parties hereto and their
respective successors and permitted assigns.
E. The representations and warranties, the indemnifications extended
hereunder, and the provisions of Section 9. hereof are intended to and
shall continue after and survive the expiration, termination or
cancellation of this Agreement.
F. No provisions of the Agreement may be amended or modified in any manner
except by a written agreement properly authorized and executed by each
party hereto.
G. The failure of either party to insist upon the performance of any terms
or conditions of this Agreement or to enforce any rights resulting from
any breach of any of the terms or conditions of this Agreement,
including the payment of damages, shall not be construed as a
continuing or permanent waiver of any such terms, conditions, rights or
privileges, but the same shall continue and remain in full force and
effect as if no such forbearance or waiver had occurred. No waiver,
release or discharge of any party's rights hereunder shall be effective
unless contained in a written instrument signed by the party sought to
be charged.
H. The captions in the Agreement are included for convenience of reference
only, and in no way define or limit any of the provisions hereof or
otherwise affect their construction or effect.
I. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but all of which together shall
constitute one and the same instrument.
J. If any provision of this Agreement shall be determined to be invalid or
unenforceable, the remaining provisions of this Agreement shall not be
affected thereby, and every provision of this Agreement shall remain in
full force and effect and shall remain enforceable to the fullest
extent permitted by applicable law.
K. This Agreement may not be assigned by either party hereto without the
prior written consent of the other party.
L. Neither the execution nor performance of this Agreement shall be deemed
to create a partnership or joint venture by and between Custodian and
Fund.
M. Except as specifically provided herein, this Agreement does not in any
way affect any other agreements entered into among the parties hereto
and any actions taken or omitted by either party hereunder shall not
affect any rights or obligations of the other party hereunder.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective duly authorized officers.
INVESTORS FIDUCIARY TRUST COMPANY
By:
---------------------------------------
Title:
------------------------------------
XXXXXXXX NEW TECHNOLOGIES FUND, INC.
By:
---------------------------------------
Title:
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EXHIBIT A -- INCOME AVAILABILITY SCHEDULE
FOREIGN--Income will be credited contractually on pay day in the markets noted
with Contractual Income Policy. The markets noted with Actual income policy will
be credited income when it is received.
---------------------------------------------------------------------------------------------------------
MARKET INCOME POLICY MARKET INCOME POLICY MARKET INCOME POLICY
---------------------------------------------------------------------------------------------------------
Argentina Actual Hong Kong Contractual Poland Actual
---------------------------------------------------------------------------------------------------------
Australia Contractual Hungary Actual Portugal Contractual
---------------------------------------------------------------------------------------------------------
Austria Contractual India Actual Russia Actual
---------------------------------------------------------------------------------------------------------
Bahrain Actual Indonesia Actual Singapore Contractual
---------------------------------------------------------------------------------------------------------
Bangladesh Actual Ireland Actual Slovak Republic Actual
---------------------------------------------------------------------------------------------------------
Belgium Contractual Israel Actual South Africa Actual
---------------------------------------------------------------------------------------------------------
Bermuda Actual Italy Contractual South Korea Actual
---------------------------------------------------------------------------------------------------------
* Bolivia Actual Ivory Coast Actual Spain Contractual
---------------------------------------------------------------------------------------------------------
Botswana Actual * Jamaica Actual Sri Lanka Actual
---------------------------------------------------------------------------------------------------------
Brazil Actual Japan Contractual Swaziland Actual
---------------------------------------------------------------------------------------------------------
Canada Contractual Jordan Actual Sweden Contractual
---------------------------------------------------------------------------------------------------------
Chile Actual Kenya Actual Switzerland Contractual
---------------------------------------------------------------------------------------------------------
China Actual Lebanon Actual Taiwan Actual
---------------------------------------------------------------------------------------------------------
Colombia Actual Luxembourg Actual Thailand Actual
---------------------------------------------------------------------------------------------------------
Cyprus Actual Malaysia Actual * Trinidad & Actual
Tobago
---------------------------------------------------------------------------------------------------------
Czech Republic Actual Mauritius Actual * Tunisia Actual
---------------------------------------------------------------------------------------------------------
Denmark Contractual Mexico Actual Turkey Actual
---------------------------------------------------------------------------------------------------------
Ecuador Actual Morocco Actual UnitedKingdom Contractual
---------------------------------------------------------------------------------------------------------
Egypt Actual Namibia Actual United States See Attached
---------------------------------------------------------------------------------------------------------
**Euroclear Contractual/ Netherlands Contractual Uruguay Actual
Actual
---------------------------------------------------------------------------------------------------------
Euro CDs Actual New Zealand Contractual Venezuela Actual
---------------------------------------------------------------------------------------------------------
Finland Contractual Norway Contractual Zambia Actual
---------------------------------------------------------------------------------------------------------
France Contractual Oman Actual Zimbabwe Actual
---------------------------------------------------------------------------------------------------------
Germany Contractual Pakistan Actual
---------------------------------------------------------------------------------------------------------
Ghana Actual Peru Actual
---------------------------------------------------------------------------------------------------------
Greece Actual Philippines Actual
---------------------------------------------------------------------------------------------------------
* Market is not 17F-5 eligible
** For Euroclear, contractual income paid only in markets listed with Income Policy of Contractual.
UNITED STATES--
---------------------------------------------------------------------------------------------------------
INCOME TYPE DTC FED PTC PHYSICAL
---------------------------------------------------------------------------------------------------------
Dividends Contractual N/A N/A Actual
---------------------------------------------------------------------------------------------------------
Fixed Rate Interest Contractual Contractual N/A Actual
---------------------------------------------------------------------------------------------------------
Variable Rate Interest Contractual Contractual N/A Actual
---------------------------------------------------------------------------------------------------------
GNMA I N/A N/A Contractual PD +1 N/A
---------------------------------------------------------------------------------------------------------
GNMA II N/A N/A Contractual PD *** N/A
---------------------------------------------------------------------------------------------------------
Mortgages Actual Contractual Contractual Actual
---------------------------------------------------------------------------------------------------------
Maturities Actual Contractual N/A Actual
---------------------------------------------------------------------------------------------------------
Exceptions to the above Contractual Income Policy include securities that are:
> Involved in a trade whose settlement either failed, or is pending over the
record date, (excluding the United States);
> On loan under a self directed securities lending program other than IFTC's
own vendor lending program;
> Known to be in a condition of default, or suspected to present a risk of
default or payment delay;
> In the asset categories, without limitation, of Private Placements,
Derivatives, Options, Futures, CMOs, and Zero Coupon Bonds.
> Securities whose amount of income and redemption cannot be calculated in
advance of payable date, or determined in advance of actual collection,
examples include ADRs;
> Payments received as the result of a corporate action, not limited to, bond
calls, mandatory or optional puts, and tender offers.
*** For GNMA II securities, if the 19th day of the month is a business day,
Payable/Distribution Date is the next business day. If the 19th is not a
business day, but the 20th is a business day, Payable/Distribution date is the
first business day after the 20th. If both the 19th and 20th are not business
days, Payable/Distribution will be the next business day thereafter.
