CUSTODY AGREEMENT
THIS AGREEMENT made the 3rd day of April, 1986, 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 00 Xxxx 00xx Xxxxxx,
00xx Xxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000 ("Custodian"), and IDEX II a
Massachusetts business trust having its principal office and place of business
at 000 Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 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
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
custodian of the Fund which is to include:
A. Appointment as custodian of the securities and monies at any time
owned by the Fund; and
B. Appointment as agent to perform certain accounting and recordkeeping
functions required of a duly registered investment company in
compliance with applicable provisions of federal, state and local
laws, rules and regulations including, as may be required:
1. Provide information necessary for Fund to file required financial
reports; maintaining and preserving required books, accounts and
records as the basis for such reports; and performing certain
daily functions in connection with such accounts and records.
2. Calculating daily net asset value of the Fund, and
3. Acting as liaison with independent auditors.
2. DELIVERY OF CORPORATE DOCUMENTS. Fund has delivered or will deliver to
Custodian prior to the effective date of this Agreement, copies of the
following documents and all amendments or supplements thereto, properly
certified or authenticated:
A. Resolutions of the Board of Trustees of Fund appointing Custodian as
custodian hereunder and approving the form of this Agreement; and
B. Resolutions of the Board of Trustees of Fund designating certain
persons to give instructions on behalf of Fund to Custodian and
authorizing Custodian to rely upon written instructions over their
signatures.
3. DUTIES AND RESPONSIBILITIES OF CUSTODIAN.
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A. Delivery of Assets
Fund will deliver or cause to be delivered to Custodian on the
effective date of this Agreement, or as soon thereafter as
practicable, and from time to time thereafter, all portfolio
securities acquired by it and monies then owned by it except as
permitted by the Investment Company Act of 1940 or from time to time
coming into its possession during the time this Agreement shall
continue in effect. Custodian shall have no responsibility or
liability whatsoever for or on account of securities or monies not so
delivered. All securities so delivered to Custodian (other than bearer
securities) shall be registered in the name of Fund or its nominee, or
of a nominee of Custodian, or shall be properly endorsed and in form
for transfer satisfactory to Custodian.
B. Delivery of Accounts and Records
Fund shall turn over to Custodian all of the Fund's relevant accounts
and records previously maintained by it. Custodian shall be entitled
to rely conclusively on the completeness and correctness of the
accounts and records turned over to it by Fund, and Fund shall
indemnify and hold Custodian harmless of and from any and all
expenses, damages and losses whatsoever arising out of or in
connection with any error, omission, inaccuracy or other deficiency of
such accounts and records or in the failure of Fund to provide any
portion of such or to provide any information needed by the Custodian
knowledgeably to perform its function hereunder.
C. Delivery of Assets to Third Parties
Custodian will receive delivery and keep safely the assets of Fund
delivered to it from time to time segregated in a separate account.
Custodian will not deliver, assign, pledge or hypothecate any such
assets to any person except as permitted by the provisions of this
Agreement or any agreement executed by it according to the terms of
section 3.S. of this Agreement. The Custodian is responsible for the
securities and monies of Fund only until they have been transmitted to
and received by other persons as permitted under the terms of this
Agreement, except for securities and monies transmitted to a
sub-custodian as provided for by section 3.S., f or which Custodian
remains responsible. Custodian shall be responsible only for the
monies and securities of Fund held by it or its nominees,
sub-custodians or eligible foreign custodians under this Agreement.
Custodian may participate directly or indirectly through a
sub-custodian in the Depository Trust Company or Treasury/Federal
Reserve Book Entry System (as such entity is defined at 17 CFR Section
270.17f-4(b).
D. Registration of Securities
Custodian will hold stocks and other registerable portfolio securities
of Fund registered in the name of Fund or in the name of any nominee
of Custodian for whose fidelity and liability Custodian will be fully
responsible, or in street certificate form, so-called, with or without
any indication of fiduciary capacity. Unless otherwise instructed,
Custodian will register all such portfolio securities in the name of
its authorized nominee. All securities, and the ownership thereof by
Fund, which are held by Custodian hereunder, however, shall at all
times be identifiable on the records of the Custodian or its
sub-custodian. The Fund agrees to hold Custodian and its -nominee
harmless for any liability as a record holder 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
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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
Fund will, on each business day on which a purchase of securities
shall be made by it, deliver to Custodian instructions which shall
specify with respect to each such purchase:
1. The name of the issuer and description of the security;
2. The number of shares or the principal amount purchased, and
accrued interest, if any;
3. The trade date;
4. The settlement date;
5. The purchase price per unit and the brokerage commission, taxes
and other expenses payable in connection with the purchase;
6. The total amount payable upon such purchase; and
7. The name of the person from whom or the broker or dealer through
whom the purchase was made.
In accordance with such instructions, Custodian will pay for out of
monies held for the account of Fund, but only insofar as monies are
available therein for such purpose, and receive the portfolio
securities so purchased by or for the account of Fund. Such payment
will be made only upon receipt by Custodian of the securities so
purchased in form for transfer satisfactory to Custodian.
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 of Fund has been made, deliver to Custodian instructions
specifying with respect to each such sale:
1. The name of the issuer and description of the securities;
2. The number of shares or principal amount sold, and accrued
interest, if any;
3. The date on which the securities sold were purchased or other
information identifying the securities sold and to be delivered;
4. The trade date;
5. The settlement date;
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6. The sale price per unit and the brokerage commission, taxes or
other expenses payable in connection with such sale;
7. The total amount to be received by Fund upon such sale; and
8. The name 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, such delivery to be made only upon receipt of
payment therefor in such form as is satisfactory to Custodian, with
the understanding that Custodian may deliver or cause to be delivered
securities for payment in accordance with the customs prevailing among
dealers in securities.
H. Purchases or Sales of Security Options, Options on Indices and
Security Index Futures Contracts Fund will, on each business day on
which a purchase or sale of the following options and/or futures shall
be made by it, deliver to Custodian instructions which shall specify
with respect to each such purchase or sale:
1. 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 and opening, exercising, expiring
or closing transaction;
g. Whether the transaction involves a put or call;
h. Whether the option is written or purchased;
i. Market on which option traded;
j. Name and address of the broker or dealer through whom the
sale or purchase was made.
2. Options on Indices
a. The index;
b. The price at which purchased or sold;
c. The exercise price;
d. The premium;
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e. The multiple;
f. The expiration date;
g. Whether the transaction is an opening, exercising, expiring
or closing transaction;
h. Whether the transaction involves a put or call;
i. Whether the option is written or purchased;
j. The name and address of the broker or dealer through whom
the sale or purchase was made, or other applicable
settlement instructions.
3. Security Index Future 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; and
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).
f. The name and address of the futures commission merchant
through whom the sale or purchase was made, or other
applicable settlement instructions.
4. 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
i. The market on which the option is traded.
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I. Securities Pledged or Loaned
If specifically allowed for in the prospectus of Fund:
1. Upon receipt of instructions, Custodian will release or cause to
be released securities held in custody to the pledgee designated
in such instructions by way of pledge or hypothecation to secure
any loan incurred by Fund, provided, however, that the securities
shall be released only upon payment to Custodian of the monies
borrowed, except that in cases where additional collateral is
required to secure a borrowing already made, further securities
may be released or caused to be released - for that purpose upon
receipt of instructions. Upon receipt of instructions, Custodian
will pay, but only from funds available for such purpose, any
such loan upon redelivery to it of the securities pledged or
hypothecated therefor and upon surrender of the note or notes
evidencing such loan.
2. Upon receipt of instructions, Custodian will release securities
held in custody to the borrower designated in such instructions;
provided, however, that if the borrower is a bank or securities
broker-dealer, 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 Board of Trustees of Fund.
K. Deposit Account
Custodian will open and maintain a special purpose deposit account or
accounts in the name of Custodian ("Account"), subject only to draft
or order by Custodian upon receipt of instructions. All monies
received by Custodian from or for the account of Fund shall be
deposited in said Account, 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
Fund's Account.
Custodian may open and maintain an Account in such other banks or
trust companies as may be designated by it or by properly authorized
resolution of the Board of Trustees of Fund, such Account, however, to
be in the name of custodian and subject only to its draft or order.
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 with such income on the payable date;
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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 purpose;
and
2. all other securities which may mature or be called,
redeemed, retired or otherwise become payable and
regarding which the Custodian has actual knowledge, or
notice of which is contained in publications of the
type to which it normally subscribes for such purpose;
and
b. the endorsement for collection, in the name of Fund, of all
checks, drafts or other negotiable instruments. Custodian,
however, will not be required to institute suit or take
other extraordinary action to enforce collection except upon
receipt of instructions and upon being indemnified to its
satisfaction against the costs and expenses of such suit or
other actions. Custodian will receive, claim and collect all
stock dividends, rights and other similar items and will
deal with the same pursuant to instructions. Unless prior
instructions have been received to the contrary, Custodian
will, without further instructions, sell any rights held for
the account of Fund on the last trade date prior to the date
of expiration of such rights.
M. Payment of Dividends and other Distributions
On the declaration of any dividend or other distribution on the shares
of Beneficial Interest of Fund ("Fund Shares") by the Board of
Trustees of Fund, Fund shall deliver to Custodian instructions with
respect thereto, including a copy of the Resolution of said Board of
Trustees certified by the Secretary or an Assistant Secretary of Fund
wherein there shall be set forth the record date as of which
shareholders entitled to receive such dividend or other distribution
shall be determined, the date of payment of such dividend or
distribution, and the amount payable per share on such dividend or
distribution.
Except if the ex-dividend date and the reinvestment date of any
dividend are the same, in which case funds shall remain in the Custody
Account, on the date specified in such Resolution f or 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 necessary to pay the
amount per share payable in cash on Fund Shares issued and outstanding
on the record date established by such Resolution.
N. Shares of Fund Purchased by Fund
Whenever any Fund Shares are repurchased or redeemed by Fund, Fund or
its agent shall advise Custodian of the aggregate dollar amount to be
paid for such shares and shall confirm such advice in writing. Upon
receipt of such advice, Custodian shall charge such aggregate dollar
amount to the Account of 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.
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Custodian shall not have any duty or responsibility to determine that
Fund Shares repurchased or redeemed by Fund have been removed from the
proper shareholder account or accounts or that the proper number of
such shares have been cancelled and removed from the shareholder
records.
O. Shares of Fund Purchased from Fund
Whenever Fund Shares are purchased from Fund, Fund will deposit or
cause to be deposited with Custodian the amount received for such
shares.
Custodian shall not have any duty or responsibility 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 as of the
close of business on each day, a detailed statement of the amounts
received or paid and of securities received or delivered for the
account of Fund during said 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
and will permit such persons as are authorized by Fund; and if
demanded, federal and state regulatory agencies to examine the
securities, books and records. Upon the instructions of Fund or as
demanded by federal or state regulatory agencies, Custodian will
instruct sub-custodian to permit such persons as are authorized by
Fund and if demanded, federal and state regulatory agencies to examine
the books, records and securities held by sub-custodian which relate
to Fund.
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S. Appointment of Sub-Custodian
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 sub-custodians as may be
selected by Custodian. Any such sub-custodian must have the
qualifications required for custodian under the Investment
Company Act of 1940, as amended. The sub-custodian may
participate directly or indirectly in the Depository Trust
Company or Treasury/Federal Reserve Book Entry System (as such
entity is defined at 17 CFR Sec. 270.17f-4(b)). Neither Custodian
nor subcustodian will be entitled to reimbursement by Fund for
any fees or expenses of any sub-custodian. The appointment of a
sub-custodian will not relieve Custodian of any of its
obligations hereunder.
2. Notwithstanding any other provisions of this Agreement, Fund's
foreign securities (as defined in Rule 17f-5(c)(1) under the
Investment Company Act of 1940) and Fund's cash or cash
equivalents, in amounts reasonably necessary to effect Fund's
foreign securities transactions, may be held in the custody of
one or more banks or trust companies acting as sub-custodians,
according to Section 3.S.1; and thereafter, pursuant to a written
contract or contracts as approved by Fund's Board of Trustees,
may be transferred to an account maintained by such sub-custodian
with an eligible foreign custodian, as defined in Rule
17f-5(c)(2), provided that any such arrangement involving a
foreign custodian shall be in accordance with the provisions of
Rule 17f-5 under the Investment Company Act of 1940 as that Rule
may be amended from time to time.
T. Accounts and Records
Custodian will prepare and maintain complete, accurate and current all
accounts and records required to be maintained by Fund under the
Internal Revenue Code of 1954 ("Code") as amended and under the
General Rules and Regulations under the Investment Company Act of 1940
("Rules") as amended, and as agreed upon between the parties and will
preserve said records in the manner and for the periods prescribed in
said Code and Rules, or for such longer period as is agreed upon by
the parties.
Custodian relies upon Fund to furnish, in writing, accurate and timely
information to complete Fund's records and perform daily calculation
of the Fund's net asset value, as provided in Section 3.W. below.
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 fumish 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 fumish
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 for all expenses and
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employee time invested in any such review outside of routine and
normal periodic reviews. Upon receipt from Fund of the necessary
information, Custodian will supply necessary data for Fund's
completion of any necessary 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 may from time to time adopt procedures as they
agree upon, and Custodian may conclusively assume that no procedure
approved by Fund, or directed by Fund, conflicts with or violates any
requirements of its prospectus, Deed of Trust, Bylaws, or any rule or
regulation of any regulatory body or governmental agency. Fund will be
responsible to notify Custodian of any changes in state statutes,
regulations, rules 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, once daily. Custodian will prepare and maintain a
daily evaluation of securities for which market quotations are
available by the use of outside services normally used and contracted
for this purpose; all other securities will be evaluated 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 upon instructions.
4. INSTRUCTIONS.
A. The term "instructions", as used herein, means written or oral
instructions to Custodian from a designated representative of Fund.
Certified copies of resolutions of the Board of Trustees of Fund
naming one or more designated representatives to give instructions in
the name and on behalf of Fund, may be received and accepted from time
to time by Custodian as conclusive evidence of the authority of any
designated representative to act for Fund and may be considered to be
in full force and effect (and Custodian will be fully protected in
acting in reliance thereon) until receipt by Custodian of notice to
the contrary. Unless the resolution delegating authority to any person
to give instructions specifically requires that the approval of anyone
else will first have been obtained, Custodian will be under no
obligation to inquire into the right of the person giving such
instructions to do so. Notwithstanding any of the foregoing provisions
of this Section 4. no authorizations or instructions received by
Custodian from Fund, will be deemed to authorize or permit any
director, officer, employee, or agent of Fund to withdraw any of the
securities or similar investments of Fund upon the mere receipt of
such authorization or instructions from such director, officer,
employee or agent.
Notwithstanding any other provision of this Agreement, Custodian, upon
receipt (and acknowledgement if required at the discretion of
Custodian) of the instructions of a designated representative of Fund
will undertake to deliver for Fund's account monies, (provided such
monies are on hand or available) in connection with Fund's
transactions and to wire transfer such monies to such broker, dealer,
subcustodian, bank or other agent specified in such instructions by a
designated representative of Fund.
B. No later than the next business day immediately following each oral
instruction, Fund will send Custodian written confirmation of such
oral instruction. At Custodian's sole discretion, Custodian may record
on tape, or otherwise, any oral instruction whether given in person or
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via telephone, each such recording identifying the parties, the date
and the time of the beginning and ending of such oral instruction.
5. LIMITATION OF LIABILITY OF CUSTODIAN.
A. Custodian shall hold harmless and indemnify Fund from and against any
loss or liability arising out of Custodian's failure to comply with
the terms of this Agreement or arising out of Custodian's negligence,
willful misconduct, or bad faith. Custodian may request and obtain the
advice and opinion of counsel for Fund, or of its own counsel with
respect to questions or matters of law, and it shall be without
liability to Fund for any action taken or omitted by it in good faith,
in conformity with such advice or opinion.
B. Custodian may rely upon statements of Fund's independent certified
public accountants and any representative of Fund authorized to give
instructions, and Custodian shall not be liable for any actions taken,
in good faith, upon such statements.
C. If Fund requires Custodian in any capacity to take, with respect to
any securities, any action which involves the payment of money by it,
or which in Custodian's opinion might make it or its nominee liable
for payment of monies or in any other way, Custodian, upon notice to
Fund given prior to such actions, shall be and be kept indemnified by
Fund in an amount and form satisfactory to Custodian against any
liability on account of such action.
D. Custodian shall be entitled to receive, and Fund agrees to pay to
Custodian, on demand, reimbursement for such cash disbursements, costs
and expenses as may be agreed upon from time to time by Custodian and
Fund.
E. Custodian shall be protected in acting as custodian hereunder upon any
instructions, advice, notice, request, consent, certificate or other
instrument or paper reasonably appearing to it to be genuine and to
have been properly executed and shall, unless otherwise specifically
provided herein, be entitled to receive as conclusive proof of any
fact or matter required to be ascertained from Fund hereunder, a
certificate signed by the Fund's President, or other officer
specifically authorized for such purpose.
F. Without limiting the generality of the foregoing, Custodian shall be
under no duty or obligation to inquire into, and shall not be liable
for:
1. The legality of the purchase of any security by or for Fund or
evidence of ownership required by Fund to be received by
Custodian, or the propriety of the decision to purchase or amount
paid therefor;
2. The legality of the sale of any securities by or for Fund, or the
propriety of the amount for which the same are sold;
3. The legality of the issue or sale of any beneficial interest of
Fund, or the sufficiency of the amount to be received therefor;
4. The legality of the repurchase or redemption of any shares of
beneficial interest of, 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 shares of beneficial interest of
Fund in payment of any stock dividend.
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G. Custodian shall not be liable for, or considered to be Custodian of,
any money represented by any check, draft, wire transfer, clearing
house funds, uncollected funds, or instrument for the payment of money
received by it on behalf of Fund, until Custodian actually receives
such money, provided only that it shall advise Fund promptly if it
fails to receive any such money in the ordinary course of business,
and use its best efforts and cooperate with Fund toward the end that
such money shall be received.
H. Except sub-custodians or eligible foreign custodians appointed under
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 in the
absence of negligence, misconduct, or bad faith on the part of
Custodian.
1. Notwithstanding anything herein to the contrary, Custodian may
provide Fund for its approval, agreements with banks or trust
companies which will act as sub-custodians for Fund pursuant to
Section 3.S of this Agreement.
6. COMPENSATION. Fund will pay to Custodian such compensation as is stated in
the Fee Schedule attached hereto as Exhibit A which may be changed f rom
time to time as agreed to in writing by Custodian and Fund. Custodian may
charge such compensation against monies held by it for the account of Fund.
Custodian will also be entitled, notwithstanding the provisions of Sections
5.C. or 5.D. hereof, to charge against any monies held by it for the
account of Fund the amount of any fee for which it shall be entitled to
reimbursement under the provisions of this Agreement. Custodian will not be
entitled to reimbursement by Fund for any loss or expenses of any
sub-custodian or eligible foreign custodian.
7. TERMINATION. The term of this Agreement shall be one year. 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. Upon termination of this Agreement, Fund will pay to Custodian
such compensation for its reimbursable disbursements, costs and expenses
paid or incurred to such date and Fund will use its best efforts to obtain
a successor custodian. Unless the holders of a majority of the outstanding
shares of beneficial interest vote to have the securities, funds and other
properties held under this Agreement delivered and paid over to some other
person, firm or corporation specified in the vote, having not less the Two
Million Dollars ($2,000,000) aggregate capital, surplus and undivided
profits, as shown by its last published report, and meeting such other
qualifications for custodian as set forth in the Bylaws of Fund, the Board
of Trustees of Fund will, forthwith upon giving or receiving notice of
termination of this Agreement, appoint as successor custodian a bank or
trust company having such qualifications. Custodian will, upon termination
of this Agreement, deliver to the successor custodian so specified or
appointed, at Custodian's office, all securities then held by Custodian
hereunder, duly endorsed and in form for transfer, all funds and other
properties of Fund deposited with or held by Custodian hereunder, or will
co-operate in effecting changes in book-entries at the Depository Trust
Company or in the Treasury/Federal Reserve Book-Entry System pursuant to 31
CFR Sec. 306.118. In the event no such vote has been adopted by the holder
of shares of beneficial interest of Fund and no written order designating a
successor custodian has been delivered to Custodian on or before the date
when such termination becomes effective, then Custodian will deliver the
securities, funds and properties of Fund to a bank or trust company at the
selection of Custodian and meeting the qualifications for custodian, if
any, set forth in the Bylaws of Fund and having not less that Two Million
Dollars ($2,000,000) aggregate capital, surplus and undivided profits, as
shown by its last published report. Upon either such delivery to a
successor custodian, Custodian will have no further duties under this
Agreement. Thereafter such bank or trust company will be the successor
custodian under this Agreement and
12
will be entitled to reasonable compensation for its services. In the event
that no such successor custodian can be found, Fund will submit to its
shareholders, before permitting delivery of the cash and securities owned
by Fund to anyone other than a successor custodian, the question of whether
Fund will be liquidated or function without a custodian. Notwithstanding
the foregoing requirement as to delivery upon termination of this
Agreement, Custodian may make any other delivery of the securities, funds
and property of Fund which is permitted by the Investment Company Act of
1940, Fund's Deed of Trust and Bylaws then in effect or apply to a court of
competent jurisdiction for the appointment of a successor custodian.
In addition to the obligations of Custodian under this Agreement, upon
termination of this Agreement all records maintained by Custodian in
machine readable form relating to the services to be performed by Custodian
under this Agreement shall be surrendered to Fund or its agent in machine
readable form, and Custodian shall use its best efforts to assist in the
conversion of such records to the recordkeeping system of the successor to
Custodian.
8. NOTICES. Notices, requests, instructions and other writings received by
Fund at Attn: Xx. Xxxxx X. Xxxxx, Executive Vice President, 000 Xxxxxxxxx
Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000 or at such other address as
Fund may have designated to Custodian in writing, will be deemed to have
been properly given to Fund hereunder; and notices, requests, instructions
and other writings received by Custodian at its offices at 00 Xxxx 00xx
Xxxxxx, 00xx Xxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000, 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. MISCELLANEOUS.
A. This Agreement is executed and delivered in the State of Missouri and
shall be governed by the laws of said state.
B. All the terms and provisions of this Agreement shall be binding upon,
inure to the benefit of, and be enforceable by the respective
successor and assigns of the parties hereto.
C. No provisions of the Agreement may be amended or modified, in any
manner except by a written agreement properly authorized and executed
by both parties hereto.
D. The captions in this Agreement are included for convenience of
reference only, and in no way define or delimit any of the provisions
hereof or otherwise affect their construction or effect.
E. This Agreement shall become effective at the close of business on the
3rd day of April, 1986.
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. If any part, term or provision of this Agreement is by the courts held
to be illegal, in conflict with any law or otherwise invalid, the
remaining portion or portions shall be considered severable and not be
affected, and the rights and obligations of the parties shall be
construed and enforced as if the Agreement did not contain the
particular part, term or provision held to be illegal or invalid.
H. This Agreement may not be assigned by either party without prior
written consent of the other party.
13
I. If any provision of the Agreement, either in its present form or as
amended from time to time, limits, qualifies or conflicts with the
Investment Company Act of 1940 and the rules and regulations
promulgated thereunder, such statutes, rules and regulations shall be
deemed to control and supersede such provision without nullifying or
terminating the remainder of the provisions of this Agreement.
J. A copy of the Declaration of Trust is on file with the Secretary of
the Commonwealth. This Agreement has been executed on behalf of the
Fund by the undersigned officer of the Fund in his capacity as an
officer of the Fund. The obligations of this Agreement shall not be
binding upon the assets and property of the Fund and shall not be
binding upon any Trustee, officer or shareholder of the Fund
individually.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective authorized corporate officers, and their respective
corporate seals to be affixed.
INVESTORS FIDUCIARY TRUST COMPANY
By: /S/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx, Vice President
(Corporate Seal)
ATTEST:
/S/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx, Assistant Secretary
IDEX II
By: /S/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
President
(Corporate Seal)
ATTEST:
/S/ Xxxxx X. Xxxxxxxxxx
Xxxxx X. Xxxxxxxxxx
Assistant Secretary
14
INVESTORS FIDUCIARY TRUST COMPANY
IDEX GROUP OF MUTUAL FUNDS
FEE SCHEDULE
January 1 - December 31, 1992
1. PORTFOLIO ACCOUNTING AND SECURITY CUSTODY
A. Minimum Monthly Asset Fee
There is a monthly minimum fee of $2,250 per fund/portfolio. The
monthly minimum fee per portfolio does not apply to any portfolio if
the asset based fees discussed in I.B. and I.C. below produces greater
revenue than the aggregate minimum would produce.
B. Domestic Securities
a. Asset-Based Fee on a Total Relationship Basis:
5.4/100 of l% (5.4 basis points) on the first $50 million is
assets 1.1/100 of l% (1.1 basis points) on all assets in excess
of $50 million
b. Transaction Fee
Per Domestic Transaction - $20.00
C. Foreign Securities
a. Asset Based Fee per fund:
22/100 of 1% (22 basis points) on all assets (January 1-June 30,
1992) 18/100 of 1% (18 basis points) on all assets (Effective
July 1, 1992)
b. Transaction Fee
Per Transaction - $20.00
c. Fees for Emerging Markets quoted on an "as needed" basis.
D. Balance Credits
IFTC will offset fees with balance credits calculated at 85% of the
bank credit rate (see below) applied to average custody collected cash
balances for the month. Balance credits will be applied on a fund by
fund basis and can be used to offset custody and portfolio accounting
fees. Any credits in excess of fees will be carried forward from month
to month through the end of the calendar year. For calculation
purposes, IFTC uses an actual/actual basis.
Note: The bank credit rate is the equivalent to the lesser of:
/bullet/ The average 91-day Treasury Xxxx discount rate for the month
or
/bullet/ The average Federal Funds rate for the month less 50 basis
points.
Idex Group of Mutual Funds
Fee Schedule (Continued)
E. Overdraft Charges
Fund overdrafts will be calculated at the Prime rate (as published in
the Wall Street Journal) and charged on a daily basis.
II. NOTES TO THE ABOVE FEE SCHEDULE
A. Asset based fees are payable monthly at 1/12th of the annual stated
rate based on monthly average net assets, except for foreign
denominated assets which will be computed on month end market value.
The domestic securities asset based fee will be allocated to the
portfolios based upon each portfolio's proportionate share of the
total monthly average net assets. The foreign securities asset based
fee will be a direct charge to each portfolio which owns foreign
denominated securities.
B. The above schedule does not include out-of-pocket expenses that would
be incurred by IFTC on the fund's behalf. Examples of out-of-pocket
expenses include but are not limited to pricing services, postage,
mailing services, magnetic tapes, microfilm, microfiche, FDIC
insurance, foreign registration and script fees, and back-up recovery.
IFTC bills out-of-pocket expenses separately from service fees.
C. The fees stated above are exclusive of terminal equipment required in
the client's location(s) and communication line costs.
D. Any fees or out-of-pocket expenses not paid within 30 days of the date
of the original invoice will be charged a late payment fee of 1% per
month until payment of the fees are received by IFTC.
E. The above fee schedule is applicable for selections made and
communicated within 90 days of the date of this proposal. The fees are
guaranteed for a one year period commencing on the effective date of
the service agreement between IFTC and the client. All changes to the
fee schedule will be communicated in writing at least 60 days prior to
their effective date.
/S/ Xxxxxxx X. Xxxxxxxx /S/ Xxxxxx X. Xxxxxxxx
------------------------ -----------------------
Xxxxxxx X. Xxxxxxxx Xxxxxx X. Xxxxxxxx
INVESTORS FIDUCIARY TRUST COMPANY IDEX GROUP OF MUTUAL FUNDS
------------------------ -------------------------
DATE DATE
