EXHIBIT 99.(g)
CUSTODY AGREEMENT
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THIS AGREEMENT made the 5th day of March, 1991 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 l27 Xxxx 00xx Xxxxxx, 00xx
Xxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000 ("Custodian"), and THE XXXXXXXXXX FUNDS, a
Massachusetts business trust having its principal office and place of business
at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Trust").
WITNESSETH:
WHEREAS, Trust desires to appoint Investors Fiduciary Trust Company as
Custodian of the securities and monies of the investment portfolios of each
series of Trust's share of beneficial interest; 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. Trust hereby constitutes and appoints
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Custodian as custodian of Trust which is to include:
A. Appointment as custodian of the securities and monies at any time
owned by Trust securities and monies attributed to each series of
shares of Trust's shares of beneficial interest being separately held
and accounted for; 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 Trust 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 each series of shares of
beneficial interest of Trust, and
3. Acting as liaison with independent auditors.
2. DELIVERY OF CORPORATE DOCUMENTS. Trust has delivered or will deliver
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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 Trust appointing Custodian as
custodian hereunder and approving the form of this Agreement; and
B. Resolutions of the Board of Trustees of Trust designating certain
persons to give instructions on behalf of Trust 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
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Trust 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 a particular
series of Trust's shares of beneficial interest 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
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Trust shall turn over to Custodian all of Trust'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 Trust, and Trust shall
indemnify and hold Custodian harmless of and
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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 Trust to
provide any portion of such or to provide any information needed by
Custodian knowledgeably to perform its function hereunder.
C. Delivery of Assets to Third Parties
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Custodian will receive delivery of and keep safely the assets of
Trust delivered to it from time to time segregated in a separate
account for each series of Trust's shares of beneficial interest.
Custodian will not deliver, assign, pledge or hypothecate any such
assets to any person except as permitted by the provisions of this
Agreement or any agreement executed by it according to the terms of
Section 3.S. of this Agreement. Upon delivery of any such assets to a
subcustodian pursuant to Section 3.S.2 of this agreement, Custodian
will create and maintain records identifying those assets which have
been delivered to the subcustodian as belonging to the relevant
series of the shares of beneficial interest of Trust. Custodian is
responsible for the securities and monies of Trust 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 United Missouri Bank of Kansas City, N.A. (UMBKC) and
United Missouri Trust Company of New York (UMBNY), for which
Custodian remains responsible. Custodian shall be responsible for the
monies and securities of Trust held by eligible foreign custodians or
subcustodians under this Agreement to the extent the domestic
subcustodian with which Custodian contracts is responsible to
Custodian. Custodian may participate directly or indirectly through a
subcustodian in the Depository Trust Company or Treasury/Federal
Reserve Book Entry System or Participant Trust Company (PTC) (as such
entities are defined at 17 CFR Section 270.17f-4(b)) or other
depository approved by the Trust and with which Custodian has a
satisfactory direct or indirect contractual relationship.
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D. Registration of Securities
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Custodian will hold stocks and other registerable portfolio
securities of Trust registered in the name of the appropriate series
of the shares of beneficial interest of Trust 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 a series of the shares of beneficial interest of
Trust, which are held by Custodian hereunder, however, shall at
all times be identifiable on the records of Custodian to the
appropriate series of Trust's shares of beneficial interest. Trust
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 a particular series of the
shares of beneficial interest of Trust for other securities or cash
issued or paid in connection with any reorganization,
recapitalization, merger, consolidation, split-up of shares, change
of par value, conversion or other vise, 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 therefore 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 Trust
---------------------------------
Trust will, through its authorized representative, on each business
day on which a purchase of securities shall be made by it, deliver to
Custodian
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instructions which shall specify with respect to each such purchase:
1. The name of the series of its shares of beneficial interest for
which the securities have been acquired;
2. The name of the issuer and description of the security;
3. The number of shares or the principal amount purchased, and
accrued interest, if any;
4. The trade date;
5. The settlement date;
6. The purchase price per unit and the brokerage commission, taxes
and other expenses payable in connection with the purchase;
7. The total amount payable upon such purchase; and
8. 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 the particular series of the shares of
beneficial interest of Trust, but only insofar as monies are
available therein for such purpose, and receive the portfolio
securities so purchased by or for the account of that series of
shares of beneficial interest of Trust except that Custodian may in
its sole discretion advance funds to Trust which may result in an
overdraft because the monies held by Custodian on behalf of the
relevant series of the shares of beneficial interest of Trust are
insufficient to pay the total amount payable upon such purchase. 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 Trust - Other than Options and
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Futures
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Trust will, through its authorized representative, on each business
day on which a sale of investment securities held on behalf of a
series of the shares of beneficial interest of Trust has been made,
deliver to Custodian instructions specifying with respect to each
such sale:
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1. The name of the series of its shares beneficial interest for which
the securities have been acquired;
2. The name of the issuer and description of the securities;
3. The number of shares or principal amount sold, and accrued
interest, if any;
4. The date on which the securities sold were purchased or other
information identifying the securities sold and to be delivered;
5. The trade date:
6. The settlement date;
7. The sale price per unit and the brokerage commission, taxes or
other expenses payable in connection with such sale;
8. The total amount to be received by Trust upon such sale; and
9. 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 the relevant series of the shares of beneficial interest
of Trust 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
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Security Index Futures Contracts
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Trust will, through its authorized representative, 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 the name of
the series of its shares of beneficial interest which has engaged in
the transactions and the following:
1. Security Options
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a. The underlying security;
b. The price at which purchased or sold;
c. The expiration date;
d. The number of contracts;
e. The exercise price;
f. Whether the transaction is an opening, exercising, expiring or
closing transaction;
g. Whether the transaction involves a put or call;
h. Whether the option is written or purchased;
i. Market on which option traded;
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;
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 Futures Contracts
a. The last trading date specified in the contract and, when
available, the closing level, thereof;
b. The index level on the date the contract is entered into;
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c. The multiple;
d. Any margin requirements;
e. The need for a segregated margin account (in addition to
instructions, and if not already in the possession of
Custodian, Trust shall deliver a substantially complete and
executed custodial safekeeping account and procedural agreement
which shall be incorporated by reference into this Custody
Agreement); and
f. The name and address of the futures commission merchant through
whom the sale or purchase was made, or other applicable
settlement instructions.
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; and
i. The market on which the option is traded.
I. Securities Pledged or Loaned
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If specifically described and permitted in the prospectus for the
particular series of shares of beneficial interest of Trust:
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 Trust on behalf of a particular series of the
shares of beneficial interest of Trust; provided, however, that
the securities shall
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be released only upon payment to Custodian of the monies borrowed,
except that in cases where additional collateral is required to
secure a borrowing already made, further securities may be
released or caused to be released for that purpose upon receipt of
instructions. Upon receipt of instructions, Custodian will pay,
but only from funds available for such purpose, any such loan upon
redelivery to it of the securities pledged or hypothecated
therefor and upon surrender of the note or notes evidencing such
loan.
2. Upon receipt of instructions, Custodian will release securities
held in custody to the borrower designated in such instructions;
provided, however, that the securities will be released only upon
deposit with Custodian of full cash collateral as specified in
such instructions, and that the relevant series of the shares of
beneficial interest of Trust 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
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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 Trust except as may be otherwise provided in this
Agreement or directed from time to time by the Board of Trustees of
Trust.
K. Deposit Account
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Custodian will open and maintain a special purpose deposit account or
accounts in the name of Custodian for each series of shares of
beneficial interest of Trust ("Account"), subject only to draft or
order by Custodian upon receipt of instructions. All monies received
by Custodian from or for the account of a series of the shares of
beneficial interest of Trust shall be deposited in said Account,
barring events not in the control of Custodian such as strikes,
lockouts or labor disputes, riots, war or equipment or transmission
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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 such Account, Custodian agrees to
make Fed Funds available to the relevant series of the shares of
beneficial interest of Trust in the amount of the check. Deposits
made by Federal Reserve wire will be available to Trust immediately
and ACH wires will be available to Trust on the next business day.
Income earned on the portfolio securities will be credited to the
applicable series of the shares of beneficial interest of Trust based
on the schedule attached as Exhibit A. Custodian will be entitled to
reverse any credited amounts nowhere credits have been made and
monies are not finally collected. If monies are collected after such
xxx reversal, Custodian will credit the applicable portfolio in that
amount. 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 Trust; such
Account, however, shall be in the name of custodian and subject only
to its draft or order.
L. Income and other Payments to Trust
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Custodian will:
1. Collect, claim and receive and deposit for the Account of the
appropriate series of shares of beneficial interest of Trust 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 each series of the shares of beneficial interest of Trust in
accordance with the schedule attached hereto as Exhibit A; and if,
for any reason, a series of the shares of beneficial interest of
Trust is credited with income that is not subsequently collected,
Custodian may reverse that credited amount.
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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 presentation;
and
2. all other securities which may mature or be called,
redeemed, retired or otherwise become payable and regarding
which the Custodian has actual knowledge, or 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 the appropriate
series of shares of beneficial interest of Trust, 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 any series of shares of beneficial
interest of Trust on the last trade date prior to the date of
expiration of such rights.
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M. Payment of Dividends and other Distributions
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On the declaration of any dividend or other distribution on any
series of the shares of the beneficial interest of Trust by the Board
of Trustees of Trust, Trust 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 Trust 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.
Unless 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 for the
payment of such dividend or other distribution, Custodian will pay
out of the monies held for the account of the relevant series of the
shares of beneficial interest of Trust, insofar as the same shall be
available for such purposes, and credit to the account of the
Dividend Disbursing Agent for Trust, such amount as may be necessary
to pay the amount per share payable in cash on shares of the relevant
series of the shares of beneficial interest of Trust issued and
outstanding on the record date established by such Resolution.
N. Shares of Trust Purchased by Trust
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Whenever any shares of a series of shares of beneficial interest of
Trust are repurchased or redeemed by Trust, Trust 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 the appropriate series of shares of beneficial interest of
Trust and either deposit the same in the account maintained for the
purpose of paying for the repurchase or redemption of shares of that
series or deliver the same in accordance with such advice.
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Custodian shall not have any duty or responsibility to determine that
shares 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 Trust Purchased from Trust
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Whenever shares of a series of shares of beneficial interest of Trust
are purchased from Trust, Trust 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
shares of a series of shares of beneficial interest of Trust
purchased from Trust 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
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Custodian will promptly deliver or mail or have delivered or mailed
to Trust 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 Trust 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
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Custodian will pay or cause to be paid insofar as funds are available
for the purpose, bills, statements and other obligations of Trust
(including but not limited to obligations in connection with the
conversion, exchange or surrender of securities owned by Trust,
interest charges, dividend
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disbursements, taxes, management fees, custodian fees, legal fees,
auditors' fees, transfer agents' fees, brokerage commissions,
compensation to personnel, and other operating expenses of Trust)
pursuant to instructions of Trust setting forth the name of the
series of the shares of beneficial interest of Trust, 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
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Custodian will, within a reasonable time, render to Trust 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 each series of the shares of beneficial interest of Trust
during said day. Custodian will, from time to time, upon request by
Trust, render a detailed statement of the securities and monies held
for each series of the shares of beneficial interest of Trust 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 Trust including Trust's independent public
accountants, access to such records or confirmation of the contents
of such records; and if demanded, will permit federal and state
regulatory agencies to examine the securities, books and records.
Upon the written instructions of Trust or as demanded by federal or
state regulatory agencies, Custodian will instruct any subcustodian
to permit such persons as are authorized by Trust including Trust's
independent public accountants, access to such records or
confirmation of the contents of such records; and if demanded, to
permit federal and state regulatory agencies to examine the books,
records and securities held by subcustodian which relate to Trust.
S. Appointment of Subcustodian
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1. Notwithstanding any other provisions of this Agreement, all or any
of the monies or securities of Trust may be held in Custodian's
own custody or in the custody of one or more other banks or trust
companies acting as subcustodians as may be selected by Custodian
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and approved by Trust. Any such subcustodian must have the
qualifications required for a custodian under the Investment
Company Act of 1940, as amended. The subcustodian may participate
directly or indirectly in the Depository Trust Company or
Treasury/Federal Reserve Book Entry System, PTC (as such entity)
is defined at 17 CFR Section 270.17f-f(b)) or other depositor
approved by Trust and with which Custodian has a satisfactory
direct or indirect contractual relationship. Custodian will
appoint UMBKC and UMBNY as subcustodians and Custodian shall be
responsible for UMBKC and UMBNY to the same extent it is
responsible to Trust under Section 5 of this Agreement. Custodian
is not responsible for DTC, the Treasury/Federal Reserve Book
Entry System, and PTC except to the extent such entities are
responsible to Custodian. Upon instruction of Trust, Custodian
shall be willing to contract with such entities as Bank of New
York (BONY), Xxxxxx Guaranty and Trust Company (MGTC), Chemical
Bank (CB), and Bankers Trust Company (BT) for variable rate
securities and Custodian avid be responsible to Trust to the same
extent those entities are responsible to Custodian. Trust shall be
entitled to review Custodian's contracts with BONY, MGTC, CB, and
BT.
2. Notwithstanding any other provisions of this Agreement, Trust's
foreign securities (as defined in Rule 17f-5(c)(1) under the
Investment Company Act of 1940) and Trust's cash or cash
equivalents, in amounts reasonably necessary to effect Trust's
foreign securities transactions, may be held in the custody of one
or more banks or trust companies acting as subcustodians,
according to Section 3.S.1; and thereafter, pursuant to a written
contract or contracts as approved by Trust's Board of Trustees,
may be transferred to an account maintained by such subcustodian
with an eligible foreign custodian, as defined in Rule 17f-
5(c)(2), provided that any such arrangement
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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. Trust shall be
provided the contract with the domestic subcustodian who shall
contract with the eligible foreign subcustodians. Custodian shall
be responsible for the monies and securities of Trust held by
eligible foreign subcustodians to the extent the domestic
Subcustodian with which Custodian contracts is responsible to
Custodian.
T. Accounts and Records
--------------------
Custodian with the direction and as interpreted by Trust. Trust's
accountants and/or other tax advisors will prepare and maintain
complete, accurate and current all accounts and records required to
be maintained by Trust under the Internal Revenue Code of 1986
("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 Trust to furnish, in writing, accurate and
timely information to complete Trust's records and perform daily
calculation of the net asset value of each series of the shares of
beneficial interest of Trust, as provided in Section 3.W. below.
Custodian shall incur no liability and Trust shall indemnify and hold
harmless Custodian from and against any liability arising from any
failure of Trust to furnish such information in a timely and accurate
manner, even if Trust subsequently provides accurate but untimely
information. It shall be the responsibility of Trust to furnish
Custodian with the declaration, record and payment dates and amounts
of any dividends or income and any other special actions required
concerning each of its securities when such information is not
readily available from generally accepted securities industry
services or publications.
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U. Accounts and Records Property of Trust
--------------------------------------
Custodian acknowledges that all of the accounts and records
maintained by Custodian pursuant to this Agreement are the property
of Trust, and will be made available to Trust for inspection or
reproduction within a reasonable period of time, upon demand.
Custodian will assist Trust's independent auditors, or upon approval
of Trust, or upon demand, any regulatory body, in any requested
review of Trust's accounts and records but shall be reimbursed for
all expenses and employee time invested in any such review outside of
routine and normal periodic reviews. Upon receipt from Trust of the
necessary information, Custodian will supply necessary data for
Trust's completion of any necessary tax returns, questionnaires,
periodic reports to Shareholders and such other reports and
information requests as Trust and Custodian shall agree upon from
time to time.
V. Adoption of Procedures
----------------------
Custodian and Trust may front time to time adopt procedures as they
agree upon, and Custodian may conclusively assume that no procedure
approved by Trust, or directed by Trust, conflicts with or violates
any requirements of the prospectus for any series of the shares of
beneficial interest of the Trust, Declaration of Trust, Bylaws, or
any rule or regulation of any regulatory body or governmental agency.
Trust will be responsible to notify Custodian of any changes in
statutes, regulations, rules or policies which might necessitate
changes in Custodian's responsibilities or procedures.
W. Calculation of Net Asset Value
------------------------------
Custodian will calculate the net asset value and the net asset value
per share of each series of the shares of beneficial interest of
Trust, in accordance with the prospectus for that series, 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 Trust's instructions.
Custodian will have no responsibility for the accuracy of the
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prices quoted by these outside services or for the information
supplied by Trust or upon instructions.
X. Overdrafts
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If Custodian shall in its sole discretion advance funds to the
account of a particular series of the shares of beneficial interest
of Trust which results in an overdraft because the monies held by
Custodian on behalf of that series of the shares of beneficial
interest of Trust are insufficient to pay the total amount payable
upon a purchase of securities as specified in Trust's instructions or
for some other reason, the amount of the overdraft shall be payable
out of the assets held by Custodian for the account of such series of
the shares of beneficial interest of Trust to Custodian upon demand
and shall bear an interest rate determined by Custodian from the date
advanced until the date of payment.
4. INSTRUCTIONS.
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A. The term "instructions", as used herein, means written or oral
instructions to Custodian from a designated representative of Trust.
Certified copies of resolutions of the Board of Trustees of Trust
naming one or more designated representatives to give instructions in
the name and on behalf of Trust, may be received and accepted from
time to time by Custodian as conclusive evidence of the authority of
any designated representative to act for Trust 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 Trust, will be deemed to authorize or
permit any director, trustee, officer, employee, or agent of Trust to
withdraw any of the securities or similar investments of Trust upon
the mere receipt of such
18
authorization or instructions from such director, trustee, 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
Trust will undertake to deliver for the account of the designated
series of the shares of beneficial interest of Trust monies,
(provided such monies are on hand or available) in connection with
Trust's transactions with respect to such series of the shares of
beneficial interest of Trust and to wire transfer such monies to such
broker, dealer, subcustodian, bank or other agent specified in such
instructions by a designated representative of Trust.
B. No later than the next business day immediately following each oral
instruction, Trust will send Custodian written confirmation of such
oral instruction. At Custodian's sole discretion, Custodian may
record on tape, or otherwise, any oral instruction whether given in
person or via telephone, each such recording identifying the 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 Trust 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, bad faith or willful misconduct. Custodian shall not be
liable for consequential, special or punitive damages. Custodian may
request and obtain the advice and opinion of counsel for Trust, or of
its own counsel with respect to questions or matters of law, and it
shall be without liability to Trust for any action taken or omitted
by it in good faith, in conformity with such advice or opinion. If
Custodian reasonably believes that it could not prudently act
according to the instructions of Trust or Trust's counsel, it may in
its discretion, with notice to Trust, not act according to such
instructions.
19
B. Custodian may rely upon the advice of Trust and upon statements of
Trust's accountants or other persons believed by, it in good faith,
to be expert in matters upon which they are consulted, and Custodian
shall not be liable for any actions taken, in good faith, upon such
statements.
C. If Trust 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
Trust given prior to such actions, shall be and be kept indemnified
by Trust in an amount and form satisfactory to Custodian against any
liability on account of such action.
D. Custodian shall be entitled to receive, and Trust 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 Trust.
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 Trust
hereunder, a certificate signed by Trust'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 validity of the issue of any securities purchased by or for
Trust, the legality of the purchase thereof or evidence of
ownership required by Trust 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 any series
of the shares of beneficial interest of Trust, or the propriety
of the amount for which the same are sold;
20
3. The legality of the issue or sale of any shares of beneficial
interest of Trust, 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 Trust, or the propriety of the amount to
be paid therefor; or
5. The legality of the declaration of any dividend by Trust on any
series of the shares of beneficial interest of Trust, or the
legality of the issue of any shares of beneficial interest of any
series of the shares of beneficial interest of Trust in payment
of any stock dividend.
G. Custodian shall not be liable for, or considered to be custodian of,
any money represented by any check, draft, wire transfer, clearing
house funds, uncollected funds, or instrument for the payment of
money received by it on behalf of Trust, until Custodian actually
receives such money, provided only that it shall advise Trust
promptly if it fails to receive any such money in the ordinary course
of business, and use its best efforts and cooperate with Trust toward
the end that such money shall be received.
H. Except to the extent Custodian is responsible under other provisions
of this Agreement for subcustodians or eligible foreign
subcustodians, 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, bad faith, or willful misconduct on the
part of Custodian.
I. Notwithstanding anything herein to the contrary, Custodian may, and
with respect to any foreign subcustodians appointed under Section
3.S.2 must, provide Trust for its approval, agreements with banks or
trust companies which will act as subcustodians for Trust pursuant to
Section 3.S of this Agreement.
6. COMPENSATION. Trust will pay to Custodian such compensation as is stated
------------
in the Fee Schedule attached hereto as Exhibit B which may be changed from
time to time as agreed to in writing by Custodian and Trust. Custodian may
charge to the
21
account of the appropriate series of shares of beneficial interest of
Trust such compensation against monies held by it for the account of such
series. 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 Trust the amount of any loss, damage, liability, advance,
or expense for which it shall be entitled to reimbursement under the
provisions of this Agreement including fees or expenses due to Custodian
for other Services provided to Trust by Custodian. Custodian will not be
entitled to reimbursement by Trust for any loss or expenses of any
subcustodian.
7. TERMINATION. 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;e effect. Upon termination of this
Agreement, Trust will pay to Custodian such compensation for its
reimbursable disbursements, costs and expenses paid or incurred to such
date and Trust 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
(S2,000,000) 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 Trust, the Board of Trustees of
Trust 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
Trust deposited with or held by Custodian hereunder, or will co-operate in
effecting changes in book-entries at the Depository Trust Company 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 Trust and no written order designating a
22
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 Trust 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 Trust 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
obligations or liabilities under this Agreement. Thereafter such bank or
trust company will be the successor custodian under this Agreement and
will be entitled to reasonable compensation for its services. In the event
that no such successor custodian can be found, Trust will submit to its
shareholders, before permitting delivery of the cash and securities owned
by Trust to anyone other than a successor custodian, the question of
whether Trust 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 Trust which is permitted by the
Investment Company Act of 1940, Trust's Declaration of Trust and Bylaws
then in effect or apply to a court of competent jurisdiction for the
appointment of a successor custodian.
8. NOTICES. Notices, requests, instructions and other writings received by
--------
Trust at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or at such other
address as Trust may have designated to Custodian in writing, will be
deemed to have been properly given to Trust hereunder; and notices,
requests, instructions and other writings received by Custodian at its
offices at 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000,
or to such other address as it may have designated to Trust 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.
23
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
_______ day of January, 1991.
F. This Agreement may be executed simultaneously in two or more
counterparts, each of X 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.
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 supercede such provision without nullifying or
terminating the remainder of the provisions of this Agreement.
J. Custodian will not release the identity of Trust to an issuer which
requests such information pursuant to the Shareholder communications
Act of 1985
24
for the specific purpose of direct communications between such issuer
and Trust unless Trust directs Custodian otherwise.
K. A copy of the Declaration of Trust of Trust is on file with the
Secretary of the Commonwealth of Massachusetts and notice is hereby
given that the Agreement has been executed on behalf of Trust by the
undersigned officer of Trust in his/her capacity as an officer of
Trust. The obligations of this Agreement shall only be binding upon
the assets and property of Trust and shall not be binding upon any
Trustee, officer or shareholder of Trust individually.
25
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective duly authorized officers.
INVESTORS FIDUCIARY TRUST COMPANY
By: /s/ X. Xxxxxxx
-----------------------------
Title: Executive Vice Pres.
--------------------------
ATTEST
/s/ Xxxxxx X. Xxxxxxx
---------------------------
Xxxxxx X. Xxxxxxx
Assistant Secretary
THE XXXXXXXXXX FUNDS
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------
Title: Chairman
--------------------------
ATTEST:
/s/ Xxxxxxx X. Xxxxxxx
--------------------------
Xxxxxxx X. Xxxxxxx
Secretary
26
EXHIBIT A
---------
IFTC AVAILABILITY SCHEDULE BY TRANSACT1ON TYPE
TRANSACTION DTC PHYSICAL FED
----------------- ----------------------- ----------------------- -----------------------
TYPE CR DATE FDS TYPE CR DATE FDS TYPE CR DATE FDS TYPE
------------ ----------- -------- ----------- -------- ----------- --------
Calls Puts As Received C or F* As Received C or F*
Maturities As Received C or F* Mat. Date C or F* Mat. Date F
Tender Reorgs. As Received C As Received C N/A
Dividends Paydate C Paydate C N/A
Floating Paydate C Paydate C N/A
Rate Int.
Floating N/A As Rate C N/A
Rate Int. Received
(No Rate)
Mtg. Backed Paydate C Paydate + 1 C Paydate F
P&I Bus. Day
Fixed Rate Paydate C Paydate C Paydate F
Int.
Euroclear N/A C Paydate C
Legend
------
C = Clearinghouse Funds
F = Fed Funds
N/A = Not Applicable
* Availability based on how received.
