CUSTODY AGREEMENT
Dated March 11, 1999
Between
UMB BANK, N.A.
and
XXXXXX FUNDS, INC.
TABLE OF CONTENTS
SECTION PAGE
1. Appointment of Custodian 1
2. Definitions 1
(a) Securities 1
(b) Assets 1
(c) Instructions and Special Instructions 1
3. Delivery of Corporate Documents 2
4. Powers and Duties of Custodian and Domestic 2
Subcustodian
(a) Safekeeping 3
(b) Manner of Holding Securities 3
(c) Free Delivery of Assets 4
(d) Exchange of Securities 4
(e) Purchases of Assets 4
(f) Sales of Assets 5
(g) Options 5
(h) Futures Contracts 6
(i) Segregated Accounts 6
(j) Depositary Receipts 6
(k) Corporate Actions, Put Bonds, Called Bonds, Etc. 6
(l) Interest Bearing Deposits 7
(m) Foreign Exchange Transactions 7
(n) Pledges or Loans of Securities 8
(o) Stock Dividends, Rights, Etc. 8
(p) Routine Dealings 8
(q) Collections 8
(r) Bank Accounts 9
(s) Dividends, Distributions and Redemptions 9
(t) Proceeds from Shares Sold 9
(u) Proxies and Notices; Compliance with the
Shareholders
Communication Act of 1985 9
(v) Books and Records 9
(w) Opinion of Fund's Independent Certified Public 10
Accountants
(x) Reports by Independent Certified Public 10
Accountants
(y) Bills and Others Disbursements 10
5. Subcustodians 10
(a) Domestic Subcustodians 10
(b) Foreign Subcustodians 10
(c) Interim Subcustodians 11
(d) Special Subcustodians 11
(e) Termination of a Subcustodian 11
(f) Certification Regarding Foreign Subcustodians 11
6. Standard of Care 12
(a) General Standard of Care 12
(b) Actions Prohibited by Applicable Law, Events 12
Beyond Custodian's Control, Armed
Conflict, Sovereign Risk, etc.
(c) Liability for Past Records 12
(d) Advice of Counsel 12
(e) Advice of the Fund and Others 12
(f) Instructions Appearing to be Genuine 13
(g) Exceptions from Liability 13
7. Liability of the Custodian for Actions of Others 13
(a) Domestic Subcustodians 13
(b) Liability for Acts and Omissions of Foreign 13
Subcustodians
(c) Securities Systems, Interim Subcustodians, 13
Special Subcustodians, Securities
Depositories and Clearing Agencies
(d) Defaults or Insolvency's of Brokers, Banks, Etc. 14
(e) Reimbursement of Expenses 14
8. Indemnification 14
(a) Indemnification by Fund 14
(b) Indemnification by Custodian 14
9. Advances 14
10. Liens 15
11. Compensation 15
12. Powers of Attorney 15
13. Termination and Assignment 15
14. Additional Funds 15
15. Notices 16
16. Miscellaneous 16
CUSTODY AGREEMENT
This agreement made as of this 11th day of March, 1999, between
UMB Bank, n.a., a national banking association with its principal place
of business located at 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.
(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.
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.
(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, or conversion of convertible 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 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.
(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 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.
(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.
The Fund agrees that if it gives an Instruction for the performance
of an act on the last permissible date of a period established by any
optional offer or on the last permissible date for the performance of
such act, the Fund shall hold the Bank harmless from any adverse
consequences in connection with acting upon or failing to act upon such
Instructions.
(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 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. 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 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.
(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 Special Instructions, and 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. 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.
(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 credit such funds to the account of the appropriate Fund. The
Custodian shall 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 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 records relating to its activities
under this Agreement as are required to be maintained by Rule 31a-1
under the Investment Company Act of 1940 ("xxx 0000 Xxx") and to
preserve them for the periods prescribed in Rule 31a-2 under the 1940
Act. These records shall be open for inspection by duly authorized
officers, employees or agents (including independent public
accountants) of the appropriate Fund during normal business hours of
the Custodian.
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, the Custodian may appoint one or more Domestic
Subcustodians, Foreign Subcustodians, Special Subcustodians, or Interim
Subcustodians (as each are hereinafter defined) to act on behalf of any
one or more Funds. A Domestic Subcustodian, in accordance with the
provisions of this Agreement, may also appoint a Foreign Subcustodian,
Special Subcustodian, or Interim Subcustodian to act on behalf of any
one or more Funds. 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 Custodian may at any time appoint, or cause a Domestic
Subcustodian to appoint, any bank, trust company or other entity
meeting the requirements of an "eligible foreign 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 or sub-subcustodian (if appointed by a Domestic
Subcustodian) for purposes of holding Assets of the Fund(s) and
performing other functions of the Custodian in countries other than the
United States of America (hereinafter referred to as a "Foreign
Subcustodian" in the context of either a subcustodian or a
sub-subcustodian); provided that the Custodian shall have obtained
written confirmation from each Fund of the approval of the Board of
Directors or other governing body of each such Fund (which approval may
be withheld in the sole discretion of such Board of Directors or other
governing body or entity) with respect to (i) the identity of any
proposed Foreign Subcustodian (including branch designation), (ii) the
country or countries in which, and the securities depositories or
clearing agencies (hereinafter "Securities Depositories and Clearing
Agencies"), if any, through which, the Custodian or any proposed
Foreign Subcustodian is authorized to hold Securities and other Assets
of each such Fund, and (iii) the form and terms of the subcustodian
agreement to be entered into with such proposed Foreign Subcustodian.
Each such duly approved Foreign Subcustodian and the countries where
and the Securities Depositories and Clearing Agencies through which
they may hold Securities and other Assets of the Fund(s) shall be
listed on Appendix A attached hereto, as it may be amended, from time
to time. Each Fund shall be responsible for informing the Custodian
sufficiently in advance of a proposed investment which is to be held in
a country in which no Foreign Subcustodian is authorized to act, in
order that there shall be sufficient time for the Custodian, or any
Domestic Subcustodian, to effect the appropriate arrangements with a
proposed Foreign Subcustodian, including obtaining approval as provided
in this Section 5(b). In connection with the appointment of any
Foreign Subcustodian, the Custodian shall, or shall cause the Domestic
Subcustodian to, enter into a subcustodian agreement with the Foreign
Subcustodian in form and substance approved by each such Fund. The
Custodian shall not consent to the amendment of, and shall cause any
Domestic Subcustodian not to consent to the amendment of, any agreement
entered into with a Foreign Subcustodian, which materially affects any
Fund's rights under such agreement, except upon prior written approval
of such Fund pursuant to Special Instructions.
(c) Interim Subcustodians.
Notwithstanding the foregoing, 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 Asset.
(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) Certification Regarding Foreign Subcustodians.
Upon request of a Fund, the Custodian shall deliver to such 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 and Clearing Agencies through which each
such Foreign Subcustodian is then holding cash, Securities and other
Assets of such 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.
(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.
(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.
(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.
(e) Reimbursement of Expenses.
Each Fund agrees to reimburse the Custodian for all 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 attorneys' 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 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.
10. LIENS.
The Bank shall have a lien on the Property in the Custody Account to
secure payment of fees and expenses for the services rendered under
this Agreement. If the Bank advances cash or securities to the Fund
for any purpose or in the event that the Bank 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 Property at
any time held for the Custody Account shall be security therefor and
the Fund hereby grants a security interest therein to the Bank. The
Fund shall promptly reimburse the Bank 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 Bank, the Bank shall be entitled to dispose of such
Property to the extent necessary to obtain reimbursement. The Bank
shall be entitled to debit any account of the Fund with the Bank
including, without limitation, the Custody Account, in connection with
any such advance and any interest on such advance as the Bank deems
reasonable.
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 by notice in
writing, delivered or mailed, postage prepaid (certified mail, return
receipt requested) to the other not less than 90 days prior to the date
upon which such termination shall take effect. Upon termination of
this Agreement, the appropriate 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. Upon termination
of this Agreement, the Custodian shall deliver, at the terminating
party's expense, all Assets held by it hereunder to the appropriate
Fund or as otherwise designated by such Fund by Special Instructions.
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.
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 [INSERT FUND COMPLEX ADDRESS], 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., 10th Floor, Attn: Xxxxx Xxxxxxx, Xxxxxx Xxxx, Xxxxxxxx
00000, or mailed postage prepaid, to the Custodian's Securities
Administration department, Post Office Box 226, Attn: Xxxxx 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. 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) The captions in this Agreement are included for convenience of
reference only, and in no way define or delimit any of the provisions
hereof or otherwise affect their construction or effect.
(e) This Agreement shall be effective as of the date of execution
hereof.
(f) 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.
(g) 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
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 5(b)
and Clearing Agencies
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)
(h) 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.
(i) 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.
IN WITNESS WHEREOF, the parties hereto have caused this Custody
Agreement to be executed by their respective duly authorized officers.
XXXXXX FUNDS, INC.
Attest: By:
Name: Xxxxxxx X Xxxxxx
Title: President
Date: Xxxxx 00, 0000
XXX BANK, N.A.
Attest: By:
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice
President
Date:
APPENDIX A
CUSTODY AGREEMENT
DOMESTIC SUBCUSTODIANS:
United Missouri Trust Company of New York
Xxxxxx Xxxxxxx Trust Company (Foreign Securities Only)
SECURITIES SYSTEMS:
Federal Book Entry
Depository Trust Company
Participant Trust Company
SPECIAL SUBCUSTODIANS:
SECURITIES DEPOSITORIES
FOREIGN SUBCUSTODIANS
Euroclear
XXXXXX FUNDS, INC. UMB BANK, N.A.
By: By:
Name: Xxxxxxx X Xxxxxx Name: Xxxxx X. Xxxxxxx
Title: President Title: Senior Vice
President
Date: March 11, 1999 Date:
APPENDIX B
CUSTODY AGREEMENT
The following open-end management investment companies
("Funds") are hereby made parties to the Custody Agreement dated
March 11th , 1999, with UMB Bank, n.a. ("Custodian") and Xxxxxx
Funds, Inc., and agree to be bound by all the terms and
conditions contained in said Agreement:
XXXXXX MARKET NEUTRAL FUND
XXXXXX FUNDS, INC.
Attest: By:
Name: Xxxxxxx X Xxxxxx
Title: President
Date: Xxxxx 00, 0000
XXX BANK, N.A.
Attest: By:
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice
President
Date:
