EXHIBIT 23(g)
CUSTODY AGREEMENT
This AGREEMENT made as of _______________, 2002 by and between, U.S.
BANK NATIONAL ASSOCIATION a national banking association organized under the
laws of the United States, ("Custodian") and CMG INVESTORS TRUST ("Customer") a
________________ organized under the laws of the State of ________________.
In consideration of the premises, undertaking and covenants herein, the
parties agree as follows:
1. APPOINTMENT AND ACCEPTANCE. Customer hereby appoints Custodian as its agent
to provide custody and other services in connection with securities, cash and
other property delivered from time to time to Custodian hereunder by, or at the
direction of, Customer, and income, distributions and payments received by
Custodian with respect thereto (collectively the "Assets"); and Custodian hereby
agrees to act in such capacity, and perform such services, and hold the Assets
in a custody account established in the name of Customer (the "Account"), upon
the terms and conditions set forth below. For purposes of this Agreement, all
references contained herein to actions, instructions and responsibilities (other
than the obligations set forth in Sections 12 and 14 below) of Customer shall
include, apply to and be binding upon the Customer's agents, including any
________________________ or advisor, appointed and authorized by Customer to
direct Custodian or otherwise take actions on behalf of Customer in connection
with Custodian's services and responsibilities hereunder. Customer shall provide
written notice to Custodian of the identity of all such appointed agents and the
scope of their authority to act hereunder. Customer shall be responsible for
providing to each such agent a copy of this Agreement and all written policies
and procedures of Custodian governing its performance of services hereunder that
Customer shall receive from time to time.
2. ASSET DELIVERY, TRANSFER, CUSTODY AND SAFEKEEPING.
2.1. Customer will from time to time deliver (or cause to be delivered) Assets
to Custodian, which Custodian shall receive and accept for the Account upon
appropriate instructions from the Customer. All transactions involving Assets
shall be recorded in the Account.
2.2. Upon receipt of appropriate instructions, Custodian will release and return
Assets to Customer, Customer's Depository (as that term is defined in Section
3.3 below) account or accounts, or otherwise deliver Assets to such location or
third party, as such instructions may indicate, provided that, in connection
therewith it is the sole responsibility of Customer to provide any transfer
documentation as may be required by the Depository or third party recipient.
Custodian shall have no power or authority to assign, hypothecate, pledge or
otherwise dispose of any Assets, except as provided herein or pursuant to
appropriate instructions.
2.3. Custodian shall furnish Customer, as part of the services for which
Custodian charges its basic fee hereunder, with periodic Account statements (not
less frequently than annually) reflecting all Asset transactions in the Account
during the reporting period and ending Asset holdings.
2.4. Custodian shall forward to Customer all information it receives with
respect to any of the Assets concerning redemption rights that are exercisable
at Customer's option, tender or exchange offers, class action lawsuits and other
special matters, shall follow Customer's written instructions with respect
thereto as consistent with Custodian's governing policies and procedures and in
the absence of such instructions Custodian shall take no action. Unless
otherwise instructed in writing by Customer, Custodian shall forward to Customer
all proxy material it receives with respect to securities included among the
Assets. Proxies so forwarded shall be executed by the registered holder of the
securities, if registered in the name of the Custodian or its nominee, but
without indicating the manner in which such proxies are to be voted.
2.5. Absent specific investment instructions to the contrary from Customer,
Custodian shall leave uninvested and deposit as a general deposit with Custodian
or any bank affiliate of Custodian all cash and all checks and drafts (when
collected funds are received) received from or with respect to Assets. Customer
acknowledges that Custodian shall have no obligation to pay interest on such
general deposit. Such uninvested deposit amounts may also include, but not by
way of limitation, cash amounts received into the Account or pending
distribution from the Account.
2.6. Customer hereby authorizes and approves Custodian's performance of its
services and duties hereunder consistent with the terms and conditions of the
Custodian's duly adopted policies and procedures, as established and modified
form time to time, related to the subject matter hereof.
2.7. If any of the Assets received and held by Custodian hereunder shall be
"plan assets" with respect to any "employee benefit plan" (as those terms are
defined in Section 3 of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), the Custodian shall not be deemed to be, and shall not
exercise any discretionary powers or control over such "plan" or "plan assets"
so as to be fiduciary with respect to the plan. Furthermore, Customer shall
notify Custodian in writing whenever any Assets do constitute such "plan asset,"
and thereafter, all subcontracts, agreements or other arrangements between
Custodian and any subsidiary or affiliate thereof for services or products paid
for from any assets of the said plan and utilized in the performance of
Custodian's duties hereunder shall be subject to the advance approval of
Customer.
3. POWERS OF CUSTODIAN. In the performance of its duties hereunder, Custodian
shall have the following powers:
3.1. To register any of the Assets in the name of Customer or in the Custodian's
name or in the name of a nominee of Custodian or in the name of the Custodian's
agent bank or to hold any of the Assets in unregistered form or in such form as
will pass xxxxxx by delivery, provided that such Assets shall at all times be
recorded in Customer's Account hereunder as one of the Assets. In consideration
of Custodian's registration of any securities or other property in the name of
Custodian or its nominee or agent, Customer agrees to pay on demand to Custodian
or to Custodian's nominee or agent the amount of any loss or liability for
Stockholders' assessments, or otherwise, claimed or asserted against Custodian
or Custodian's nominee or agent by reason of such registration.
3.2. To make, execute, acknowledge and deliver any and all documents of transfer
and conveyance and any or all other instruments that may be necessary or
appropriate to carry out the duties described and powers granted herein.
-2-
3.3. To maintain qualifying Assets in any registered clearing agency or in a
Federal Reserve Bank (collectively a "Depository"), as Custodian may select, and
to permit such deposited Assets to be registered in the name of Custodian or
Custodian's agent or nominee on the records of such Federal Reserve Bank or such
registered clearing agency or the nominee of either, and to employ and use
securities depositories, clearing agencies, clearance systems, sub-custodians or
agents located outside the United States in connection with transactions
involving foreign securities.
3.4. To employ agents and to delegate duties to them as it sees fit and to
employ or consult with experts, advisors and legal counsel (who may be employed
also by Customer) and to rely on information and advice received from such
agents, experts, advisors, and legal counsel.
3.5. To perform any and all other ministerial acts deemed by Custodian necessary
or appropriate to the proper discharge of its duties hereunder.
4. PURCHASES. Upon availability of sufficient funds and receipt of appropriate
instructions from Customer, Custodian shall pay for and receive Assets purchased
for the Account, payment for which is to be made in the amount specified in such
instructions and only upon receipt by Custodian of the Assets in satisfactory
form for transfer.
5. SALES. Upon receipt of appropriate instructions from Customer, Custodian will
delivery Assets held by it as Custodian hereunder and sold by or for Customer
against payment to Custodian of the amount specified in such instructions in
accordance with the then current securities industry practices and in form
satisfactory to Custodian. Customer acknowledges that the current securities
industry practice is delivery of physical securities against later payment on
delivery date. Custodian agrees to use its best efforts to obtain payment
therefore during the same business day, but Customer confirms its sole
assumption of all risks of payment for such deliveries. Custodian may accept
checks, whether certified or not, in payment for securities delivered on
Customer's instruction, and Customer assumes sole responsibility for the risks
of collectability of such checks.
6. SETTLEMENTS.
6.1. Custodian shall provide Customer with settlement of all purchases and sales
of Assets in accordance with Custodian's then prevailing settlement policies
provided that (a) appropriate instructions for purchases and sales are receive
by Custodian in accordance with Custodian's then current published instruction
deadline schedule, and (b) Custodian has all other information, funds and/or
Assets necessary to complete the transaction.
6.2. The Custodian shall not be liable or responsible for or on account of any
act or omission of any broker or other agent designated by Customer to purchase
or sell securities for the Account of Customer.
7. CORPORATE ACTIONS. In connection with any mandatory conversion of Asset
securities pursuant to their terms, reorganization, recapitalization, redemption
in kind, consolidation, or other exchange transaction that does not require or
permit approval by the owner of the affected Assets, Custodian will tender or
exchange securities held for other securities, for other securities and cash, or
for cash alone.
-3-
8. COLLECTIONS. Custodian shall collect all income, principal and other
distributions due and payable on securities held either by Custodian or a
Depository but shall be under no obligation or duty to take action to effect
collection of any amount if the Assets upon which such payment is due are in
default, or if payment is refused after due demand and presentation. Custodian
shall have no responsibility to notify Customer in the event of such default or
refusal to pay, but if Custodian receives notice of default or refusal to pay
from an issuer or transfer agent, Custodian shall so advise Customer.
Collections of monies in foreign currency, to the extent possible, are to be
converted into United States dollars at customary rates through customary
banking channels, including Custodian's own banking facilities, and in
accordance with Custodian's prevailing policies for foreign funds repatriation.
All risk and expense incident to such foreign collection and conversion is the
responsibility of the Account and Custodian shall have no responsibility for
fluctuations in exchange rates affecting such collections or conversion.
9. NO DISCRETIONARY AUTHORITY; STANDARD OF CARE. Customer and Custodian
acknowledge that, except to the extent set forth in any separate instrument
signed by the parties with respect to this Agreement, Custodian's duties
hereunder do not include any discretionary authority, control or responsibility
with respect to the management or disposition of any Asset; that Custodian has
no authority or responsibility to render investment advice with respect to any
Asset; and that Custodian is not a fiduciary with respect to Customer. In
addition, it is agreed that:
9.1. Custodian shall have no duty to make any evaluation or to advise anyone of
the suitability or propriety of action or proposed action of Customer in any
particular transaction involving an Asset or the suitability or propriety of
retaining any particular investment as an Asset. The Custodian shall have no
duty or authority to review, question, approve or make inquiries as to any
investment instructions given pursuant hereto. The Custodian shall be under no
duty or obligation to review the securities or other property held in the
Account with respect to prudence or diversification.
9.2. Custodian shall not be liable for any loss or diminution of Assets by
reason of investment experience or for its actions taken in reliance upon an
instruction from Customer.
9.3. Custodian shall have no duty or responsibility to monitor or otherwise
investigate the actions or omissions of Customer.
9.4. Custodian shall only be responsible for the performance of such duties as
are expressly set forth herein or in instructions of Customer which are not
contrary to the provisions of this Agreement. Custodian shall exercise
reasonable care in the performance of its services hereunder. In no event shall
Custodian be liable for indirect or consequential damages.
Custodian shall not be responsible or liable for any failure or delay in
performance of its obligations under this Agreement arising out of or caused,
directly or indirectly, by instructions, actions or omissions of Customer or by
circumstances beyond Custodian's reasonable control, including, without
limitation, loss of malfunctions of utility, transportation, computer (hardware
and software) or communication service; nor shall any such failure or delay give
Customer the right to terminate this Agreement, except as provided in section 15
of this Agreement.
-4-
10. BOOKS, RECORDS AND ACCOUNTS.
10.1. Custodian will make and maintain proper books of account and complete
records of all Assets and transactions in the Account maintained by Custodian
hereunder on behalf of Customer. Custodian will preserve for the periods
prescribed by applicable federal statute or regulation all records required to
be maintained.
10.2. On at least four (4) business days' notice, Custodian will make available
to and permit inspection during Custodian's regular business hours by Customer
and its auditors of all books, records, and accounts retained by Custodian (or,
to the extent practicable, its agents) in connection with its duties hereunder
on behalf of Customer.
11. INSTRUCTIONS AND DIRECTIONS.
11.1. Custodian shall be deemed to have received appropriate "instructions" or
"directions" upon receipt of written instructions or directions, or in the case
of cash movement, written or oral instructions or directions, (a) signed or
given by any person(s) whose name(s) and signature(s) are listed on the most
recent certificate delivered by Customer to Custodian which lists those persons
authorized to give orders, corrections and instructions in the name of and on
behalf of the Customer or (b) signed or given by any other person(s) duly
authorized by Customer to give instructions or directions to Custodian hereunder
or whom Custodian reasonably believes to be so authorized.
11.2. Appropriate instructions or directions shall include instructions or
directions sent to Custodian or its agent by letter, memorandum, telegram,
cable, telex, telecopy facsimile, video (CRT) terminal or other "on-line"
system, or similar means of communication, or in the case of cash movement,
given orally over the telephone or in person.
11.3. In the event that Custodian is instructed to deliver Assets to any party
other than Customer or Customer's agent, appropriate instructions shall include,
and Customer shall supply, customary transfer documentation as required by such
party, and, to the extent that such documentation has not been supplied,
Custodian shall not be deemed to have received appropriate instructions.
12. COMPENSATION; SECURITY.
12.1. Customer shall pay to Custodian fees for its services under this Agreement
and shall reimburse Custodian for costs incurred by it hereunder as set forth in
Custodian's then current applicable fee schedule or such other fee arrangement
as Custodian and Customer may otherwise agree in writing.
12.2. If any advance of funds is made by Custodian on behalf of Customer to
purchase, or to make payment on or against delivery of securities or there shall
arise for whatever reason an overdraft in Customer's account, or if Customer is
for any other reason indebted to Custodian, including, but not limited to, any
advance of immediately available funds to Customer with respect to payments to
be received by Custodian in next-day funds (which Customer acknowledges Customer
is liable to repay if Custodian does not receive final payment), Customer agrees
to repay Custodian on demand the amount of the advance, overdraft or other
indebtedness, reserve requirements and accrued interest at a rate per annum
(based on a 360-day year for the actual number of days involved) equal to the
Federal Funds effective rate in effect from time to time.
-5-
12.3. In the event of an advance of funds by Custodian, or if any overdraft is
created by Account transactions, Custodian may directly charge the Account and
receive such payment therefrom. In the event that a compensation payment due
Custodian is past due by more than thirty (30) days, such amount may also be
charged to the Account and Custodian may receive such payment therefrom. To
secure such payments obligations, Customer does hereby grant to Custodian a
security interest in all Assets held in the Account from time to time.
13. CUSTOMER RESPONSIBILITY. Customer shall be responsible for the review of all
reports, accountings and other statements provided thereto by the Custodian, and
shall within ninety (90) days following receipt thereof notify the Custodian of
any mistakes, defects or irregularities contained or identified therein, after
which time all such matters shall be presumed to be ratified, approved and
correct and shall not provide any basis for claim or liability against the
Custodian.
14. INDEMNIFICATION. Customer hereby agrees to indemnify Custodian and its
controlling person, officers, directors, employees and agents (each an
"Indemnified Party") and hold each Indemnified Party harmless from and against
any cost, losses, claims, liabilities, fines, penalties, damages and expenses
(including reasonable attorneys' and accountants' fees (collectively, a "Claim")
arising out of (I) Customer's actions or omissions or (ii) Custodian's action
taken or omitted hereunder in reliance upon Customer's instructions, or upon any
information, order, indenture, stock certificate, power of attorney, assignment,
affidavit or other instrument delivered hereunder to Custodian, reasonably
believed by Custodian to be genuine or bearing the signature of a person or
persons authorized by Customer to sign, countersign or execute the same;
provided, that Customer shall not indemnify an Indemnified Party for any Claim
arising from the Indemnified Party's willful misfeasance, bad faith or
negligence in the performance of its duties, or reckless disregard of its duties
under this Agreement.
15. TERMINATION.
15.1. This Agreement will remain in effect until terminated by either party
giving written notice thirty (30) days in advance of the termination date.
15.2. Upon termination of this Agreement, Custodian shall follow such reasonable
Customer instructions concerning the transfer of Assets' custody and records;
provided, that (a) Custodian shall have no liability for shipping and insurance
costs associated therewith; (b) Custodian shall not be required to make any such
delivery or payment until full payment shall have been made by Customer of all
liabilities constituting a charge on or against Custodian and until full payment
shall have been made to Custodian of all its compensation, costs, including
special termination costs, if any, and expenses hereunder; and (c) Custodian
shall have been reimbursed for any advances of monies or securities made
hereunder to Customer. If any Assets remain in the Account, Custodian may
designate Customer as successor Custodian hereunder and deliver the same
directly to Customer.
15.3. Upon termination of this Agreement, all obligations of the parties to each
other hereunder shall cease, except that all indemnification provisions herein
shall survive with respect to any Claims arising from events prior to such
termination.
16. BINDING OBLIGATIONS. Customer and Custodian each hereby represent that this
Agreement constitutes its legal, valid and binding obligation enforceable in
accordance with the terms hereof; subject, as to enforcement of remedies, to
applicable bankruptcy and insolvency laws, and to general principles of equity.
-6-
17. GENERAL PROVISIONS.
17.1. NOTICE. Except as provided in paragraph 11 above, any notice or other
communication under this Agreement shall be in writing and shall be considered
given when delivered by certified mail, return receipt requested, to the parties
at the addresses set forth on the execution page hereof (or at such other
address as a party may specify by notice to other). Notice shall be effective
upon receipt if by mail, or on the date of personal delivery (by private
messenger, courier service or otherwise) or telex or facsimile, whichever occurs
first, to the addressed indicated below. The below addresses and individuals may
be changed at any time by an instrument in writing executed by the party giving
same and given to the other party, in accordance with the procedure set forth
above.
17.2. NO TAX RESPONSIBILITY. Notwithstanding any other terms or conditions
contained herein, Custodian shall not be responsible for, and Customer does
hereby waive all duties or functions of Custodian (imposed by law or otherwise)
relating to, the withholding and government deposit of any and all taxes, or
amounts with respect thereto, that may be incurred or payable in connection with
the Account established hereunder, income or gain realized on Assets held
therein or transactions undertaken with respect thereto. Except as required by
law in such manner that cannot be delegated to or assumed by Customer, Custodian
shall have no responsibility to undertake any federal, state, or local tax
reporting in connection with Assets, the Account or transactions therein.
17.3. COMPLETE AGREEMENT; MODIFICATION. This Agreement contains a complete
statement of all the arrangements between the parties with respect to its
subject matter, supersedes all existing agreement(s) between them concerning the
subject, and cannot be amended or modified in any manner except by a written
agreement executed by both parties. Notwithstanding the foregoing, if at any
time Custodian is holding assets or property of Customer pursuant to any other
custodial, pledge or other agency agreement with Customer (or which Customer has
acknowledged in instructions to Custodian) and one or more third parities that
involves Custodian's duties or obligations to a third party (which may be
affiliates to Custodian ) with respect to Assets, the terms and requirements of
the other agreement(s) concerning such Assets shall supersede and control the
provisions and duties set forth herein.
17.4. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Minnesota applicable to agreements made
and to be performed in Minnesota.
17.5. ASSIGNMENT. No party may assign any of its rights hereunder without the
consent of the other, which consent shall not be unreasonably withheld. The
foregoing consent requirement does not apply if either party shall merge or
consolidate with or sell substantially all of its assets to another corporation,
provided that such other corporation shall assume without qualification or
limitation all obligations of that party hereunder either by operation of law or
by contract.
17.6. SEPARABILITY. If any provision of this Agreement is invalid or
unenforceable, the balance of the Agreement shall remain in effect, and if any
provision is inapplicable to any person or circumstances, it shall nevertheless
remain applicable to all other persons and circumstances.
-7-
17.7. NO THIRD PARTY RIGHTS. In performing its services hereunder, Custodian is
acting solely on behalf of Customer. No agency, contractual or service
relationship shall be deemed to be established hereby between Custodian and any
other persons.
17.8. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be considered an original, but all of which
together shall constitute the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representative as of the date and year first
above written.
CMG INVESTORS TRUST US. BANK NATIONAL ASSOCIATION
By:______________________________ By:_________________________________
Title:____________________________ Title: VICE PRESIDENT
Customer Address: Custodian Address:
CMG INVESTORS TRUST U.S. Bank National Association
Pioneer Building, 6th Floor
000 Xxxxx Xxxxxx Xxxxxx
P. O. Xxx 00000
Xx. Xxxx, XX 00000-0000
Attn: Institutional Custody Group
EXHIBIT A
U.S. BANK CUSTODIAL SERVICES FEE SCHEDULE
Annual Administration Per Account $7,200.00
Market Value - Basis Point 1/3 B.P.
ADMINISTRATION CHARGES
DTC Book Entry Trade Transaction $10.00
Fed Book Entry Trade Transaction $10.00
Physical Trade Transaction $25.00
TRANSACTION CHARGES
Inactive Account - Annual Fee $1,200.00
A-1
