CUSTODY AGREEMENT Dated ______________, 20__ Between UMB BANK, N.A. and [FAMILY OF MUTUAL FUNDS]
Dated
______________, 20__
Between
UMB
BANK, N.A.
and
[FAMILY
OF MUTUAL FUNDS]
TABLE
OF CONTENTS
SECTION
|
PAGE
|
|||
1.
|
Appointment
of Custodian
|
1
|
||
2.
|
Instructions
|
1
|
||
3.
|
Delivery
of Corporate Documents
|
3
|
||
4.
|
Powers
and Duties of Custodian and Domestic Subcustodian
|
3
|
||
(a)
Safekeeping
|
3
|
|||
(b)
Manner of Holding Securities
|
4
|
|||
(c)
Free Delivery of Assets
|
5
|
|||
(d)
Exchange of Securities
|
5
|
|||
(e)
Purchases of Assets
|
6
|
|||
(f)
Sales of Assets
|
6
|
|||
(g)
Options
|
7
|
|||
(h)
Segregated Accounts
|
7
|
|||
(i)
Depository Receipts
|
7
|
|||
(j)
Corporate Actions, Put Bonds, Called Bonds, Etc.
|
8
|
|||
(k)
Interest Bearing Deposits
|
8
|
|||
(l)
Foreign Exchange Transactions
|
9
|
|||
(m)
Pledges or Loans of Securities
|
9
|
|||
(n)
Stock Dividends, Rights, Etc.
|
10
|
|||
(o)
Routine Dealings
|
10
|
|||
(p)
Collections
|
10
|
|||
(q)
Dividends, Distributions and Redemptions
|
10
|
|||
(r)
Proceeds from Shares Sold
|
10
|
|||
(s)
Proxies and Notices; Compliance with the Shareholders Communication Act of
1985
|
11
|
|||
(t)
Books and Records
|
11
|
|||
(u)
Opinion of Fund's Independent Certified Public Accountants
|
11
|
|||
(v)
Reports by Independent Certified Public Accountants
|
11
|
|||
(w)
Bills and Others Disbursements
|
12
|
|||
(x)
Precious Metals
|
12
|
|||
(y)
Sweep or Automated Cash Management
|
12
|
|||
5.
|
Subcustodians
|
12
|
||
(a)
Domestic Subcustodians
|
13
|
|||
(b)
Foreign Subcustodians
|
13
|
|||
(c)
Special Subcustodians
|
14
|
|||
(d)
Termination of a Subcustodian
|
14
|
|||
(e)
Information Regarding Foreign Subcustodians
|
14
|
|||
(f)
Eligible Securities Depositories
|
14
|
6.
|
Standard
of Care
|
15
|
||
(a)
General Standard of Care
|
15
|
|||
(b)
Actions Prohibited by Applicable Law, Etc.
|
15
|
|||
(c)
Liability for Past Records
|
16
|
|||
(d)
Advice of Counsel
|
17
|
|||
(e)
Advice of the Fund and Others
|
17
|
|||
(f)
Information Services
|
17
|
|||
(g)
Instructions Appearing to be Genuine
|
17
|
|||
(h)
No Investment Advice
|
17
|
|||
(i)
Exceptions from Liability
|
17
|
|||
7.
|
Liability
of the Custodian for Actions of Others
|
18
|
||
(a)
Domestic Subcustodians
|
18
|
|||
(b)
Liability for Acts and Omissions of Foreign Subcustodians
|
18
|
|||
(c)
Securities Systems, Interim Subcustodians, Special Subcustodians, Eligible
Securities Depositories
|
18
|
|||
(d)
Failure of Third Parties
|
18
|
|||
8.
|
Indemnification
|
19
|
||
(a)
Indemnification by Fund
|
19
|
|||
(b)
Indemnification by Custodian
|
19
|
|||
9.
|
Advances
|
19
|
||
10.
|
Security
Interest
|
20
|
||
11.
|
Compensation
|
20
|
||
12.
|
Powers
of Attorney
|
20
|
||
13.
|
Tax
Laws
|
21
|
||
14.
|
Termination
and Assignment
|
21
|
||
15.
|
Additional
Funds
|
21
|
||
16.
|
Notices
|
21
|
||
17.
|
Confidentiality
|
22
|
||
18.
|
Anti-Money
Laundering Compliance
|
22
|
||
19.
|
Miscellaneous
|
22
|
This agreement made as of the date
first set forth above between UMB Bank, n.a., a national banking association
with its principal place of business located in Kansas City, Missouri
(hereinafter "Custodian"), and ___________________, a ________________________,
on behalf of itself and each of the Funds listed on Appendix B hereof, together
with such additional Funds which shall be made parties to this Agreement by the
execution of Appendix B hereto (individually, a "Fund" and collectively, the
"Funds").
WITNESSETH:
WHEREAS, each Fund is
registered as an open-end management investment company under the Investment
Company Act of 1940, as amended (“the 1940 Act”); and
WHEREAS, each Fund desires to
appoint Custodian as its custodian for the custody of Assets (as hereinafter
defined) owned by such Fund, which Assets are to be held in such accounts as
such Fund may establish from time to time; and
WHEREAS, the Custodian is
willing to accept such appointment on the terms and conditions
hereof.
NOW, THEREFORE, in
consideration of the mutual promises contained herein, the parties hereto,
intending to be legally bound, mutually covenant and agree as
follows:
1. APPOINTMENT
OF CUSTODIAN.
Each Fund hereby constitutes and
appoints the Custodian as custodian of Assets belonging to each such Fund which
have been or may be from time to time delivered to and accepted by the
Custodian. Custodian accepts such appointment as a custodian and
agrees to perform the duties and responsibilities of Custodian as set forth
herein on the conditions set forth herein. For purposes of this
Agreement, the term “Assets” shall include Securities, monies, and other
property held by the Custodian for the benefit of a Fund. “Security”
or “Securities” shall mean stocks, bonds, rights, warrants, certificates,
instruments, obligations and all other negotiable or non-negotiable paper
commonly known as Securities which have been or may from time to time be
delivered to and accepted by the Custodian.
2. INSTRUCTIONS.
(a) An “Instruction,” as
used herein, shall mean a request, direction, instruction or certification
initiated by a Fund and conforming to the terms of this paragraph. An
Instruction may be transmitted to the Custodian by any of the following
means:
(i) a
writing manually signed on behalf of a Fund by an Authorized
Person;
(ii) a
telephonic or other oral communication from a person the Custodian reasonably
believes to be an Authorized Person;
(iii) a
facsimile transmission that the Custodian reasonably believes has been signed or
otherwise originated by an Authorized Person;
1
|
(iv)
|
a
communication effected through the internet or web-based functionality
(including without limitation, emails, data files and other
communications) on behalf of a Fund (“Electronic Communication”);
or
|
|
(v)
|
other
means reasonably acceptable to both
parties.
|
Instructions
in the form of oral communications shall be confirmed by the appropriate Fund by
either a writing (as set forth in (i) above), a facsimile (as set forth in (iii)
above), or an Electronic Communication (as set forth in (iv) above), but the
lack of such confirmation shall in no way affect any action taken by the
Custodian in reliance upon such oral Instructions prior to the Custodian’s
receipt of such confirmation. Each Fund authorizes the Custodian to
record any and all telephonic or other oral Instructions communicated to the
Custodian. The parties acknowledge and agree that, with respect to
Instructions transmitted by facsimile, the Custodian cannot verify that the
signature of an Authorized Person has been properly affixed and, with respect to
Instructions transmitted by an Electronic Communication, the Custodian cannot
verify that the Electronic Communication has been initiated by an Authorized
Person; accordingly, the Custodian shall have no liability as a result of
actions taken in reliance on unauthorized facsimile or Electronic Communication
Instructions. The Custodian recommends that any Instructions
transmitted by a Fund via email be done so through a secure system or
process.
(b) “Special Instructions,”
as used herein, shall mean Instructions countersigned or confirmed in writing by
the Treasurer or any other officer of a Fund, which countersignature
or confirmation shall be on the same instrument containing the Instructions or
on a separate instrument relating thereto.
(c) Instructions and Special
Instructions shall be delivered to the Custodian at the address and/or
telephone, facsimile transmission or email address agreed upon from time to time
by the Custodian and each Fund.
(d) Where appropriate,
Instructions and Special Instructions shall be continuing
Instructions.
(e) An Authorized Person
shall be responsible for assuring the accuracy and completeness of Instructions.
If the Custodian reasonably determines that an Instruction is unclear or
incomplete, the Custodian may notify a Fund of such determination, in which case
the Fund shall be responsible for delivering to the Custodian an amended
Instruction. The Custodian shall have no obligation to take any
action until the Fund re-delivers to the Custodian an Instruction that is clear
and complete.
(f) The Fund shall be
responsible for delivering to the Custodian Instructions or Special Instructions
in a timely manner, after considering such factors as the involvement of
subcustodians, brokers or agents in a transaction, time zone differences,
reasonable industry standards, etc. The Custodian shall have no
liability if a Fund delivers Instructions or Special Instructions to the
Custodian after any deadline established by the Custodian.
(g) By providing
Instructions to acquire or hold Foreign Assets (as defined in Rule 17f-5(a)(2)
under the 1940 Act), each Fund shall be deemed to have confirmed to the
Custodian that the Fund has (i) considered and accepted responsibility for all
Sovereign Risks and Country Risks (as hereinafter defined) associated with
investing in a particular country or jurisdiction, and (ii) made all
determinations and provided to shareholders and other investors all disclosures
required of registered investment companies by the 1940 Act.
2
3. DELIVERY
OF CORPORATE DOCUMENTS.
Each of the parties to this Agreement
represents that its execution does not violate any of the provisions of its
respective charter, articles of incorporation, partnership agreement,
declaration of trust, articles of association or bylaws, that all required
corporate or organizational action to authorize the execution and delivery of
this Agreement has been taken, and that the person signing this Agreement is
authorized to bind such party (and, in the case of the Funds, that the person
signing this Agreement is authorized to bind each of the Funds listed on
Appendix B, as such Appendix may be amended from time to time).
Each Fund agrees to provide the
Custodian, upon request, documentation regarding the Fund, including, by way of
example: certificates of incorporation or trust, by-laws, resolutions,
registration statements, W-9s and other tax-related documentation, compliance
policies and procedures and other compliance documents, etc.
In addition, each Fund has delivered or
will promptly deliver to the Custodian, copies of the Resolution(s) of its Board
of Directors or Trustees and all amendments or supplements thereto, properly
certified or authenticated, designating certain officers or employees of each
such Fund who will have continuing authority to certify to the Custodian: (a)
the names, titles, signatures and scope of authority of all persons authorized
to give Instructions or any other notice, request, direction, instruction,
certificate or instrument on behalf of each Fund, and (b) the names, titles and
signatures of those persons authorized to countersign or confirm Special
Instructions on behalf of each Fund (in both cases collectively, the "Authorized
Persons" and individually, an "Authorized Person"). Such Resolutions
and certificates may be accepted and relied upon by the Custodian as conclusive
evidence of the facts set forth therein and shall be considered to be in full
force and effect until delivery to the Custodian of a similar Resolution or
certificate to the contrary; provided, however, that the Custodian may rely upon
any written designation furnished by the Treasurer or other officer of the Fund
designating persons authorized to countersign or confirm Special Instructions
(as provided in Section 2(b)). Upon delivery of a certificate which
deletes or does not include the name(s) of a person previously authorized to
give Instructions or to countersign or confirm Special Instructions, such person
shall no longer be considered an Authorized Person authorized to give
Instructions or to countersign or confirm Special
Instructions. Unless the certificate specifically requires that the
approval of anyone else will first have been obtained, the Custodian will be
under no obligation to inquire into the right of the person giving such
Instructions or Special Instructions to do so. Notwithstanding any of the
foregoing, no Instructions or Special Instructions received by the Custodian
from a Fund will be deemed to authorize or permit any director, trustee,
officer, employee, or agent of such Fund to withdraw any of the Assets of such
Fund upon the mere receipt of such authorization, Special Instructions or
Instructions from such director, trustee, officer, employee or
agent.
4. POWERS
AND DUTIES OF CUSTODIAN AND DOMESTIC SUBCUSTODIAN.
Except for Assets held by any Foreign
Subcustodian, Interim Subcustodian, Special Subcustodian or Eligible Securities
Depository appointed pursuant to Sections 5(b), (c), or (f) of this
Agreement, the Custodian shall have and perform the powers and duties
hereinafter set forth in this Section 4. For purposes of this Section
4 all references to powers and duties of the "Custodian" shall also refer to any
Domestic Subcustodian appointed pursuant to Section 5(a).
(a) Safekeeping.
The Custodian will keep safely the
Assets of each Fund which are delivered to and accepted by it from time to
time. The Custodian shall notify a Fund if it is unwilling or unable
to accept custody of any asset of such Fund. The Custodian shall not
be responsible for any property of a Fund held by a Fund and not delivered to
the Custodian or for any pre-existing faults or defects in Assets that are
delivered to the Custodian.
3
(b) Manner of Holding
Securities.
(1) The Custodian shall at
all times hold Securities of each Fund either: (i) by physical possession of the
share certificates or other instruments representing such Securities, in
registered or bearer form; in the vault of the Custodian, Domestic Subcustodian,
a Special Custodian, depository or agent of the Custodian; or in an
account maintained by the Custodian or agent at a Securities System (as
hereinafter defined); or (ii) in book-entry form by a Securities System in
accordance with the provisions of sub-paragraph (3) below.
(2) The Custodian may hold
registrable portfolio Securities which have been delivered to it in physical
form, by registering the same in the name of the appropriate Fund or its
nominee, or in the name of the Custodian or its nominee, for whose actions such
Fund and Custodian, respectively, shall be fully responsible. Upon
the receipt of Instructions, the Custodian shall hold such Securities in street
certificate form, so called, with or without any indication of representative
capacity. However, unless it receives Instructions to the contrary,
the Custodian will register all such portfolio Securities in the name of the
Custodian's authorized nominee. All such Securities shall be held in
an account of the Custodian containing only assets of the appropriate Fund or
only assets held by the Custodian for the benefit of customers, provided that
the records of the Custodian shall indicate at all times the Fund or other
customer for which such Securities are held in such accounts and the respective
interests therein.
(3) The Custodian may
deposit and/or maintain domestic Securities owned by a Fund in, and each Fund
hereby approves use of: (a) The Depository Trust & Clearing
Corporation; (b) any other clearing agency registered with the
Securities and Exchange Commission (“SEC”) under section 17A of the Securities
Exchange Act of 1934, which acts as a securities depository; and (c) a Federal
Reserve Bank or other entity authorized to operate the federal book-entry system
described in the regulations of the Department of the Treasury or book-entry
systems operated pursuant to comparable regulations of other federal
agencies. Upon the receipt of Special Instructions, the Custodian may
deposit and/or maintain domestic Securities owned by a Fund in any other
domestic clearing agency that may otherwise be authorized by the SEC to serve in
the capacity of depository or clearing agent for the Securities or other assets
of investment companies and that acts as a Securities
depository. Each of the foregoing shall be referred to in this
Agreement as a "Securities System", and all such Securities Systems shall be
listed on the attached Appendix A. Use of a Securities System shall
be in accordance with applicable Federal Reserve Board and SEC rules and
regulations, if any, and subject to the following provisions:
(i) The
Custodian may deposit the Securities directly or through one or more agents or
Subcustodians which are also qualified to act as custodians for investment
companies.
(ii) Securities held
in a Securities System shall be subject to any agreements or rules effective
between the Securities System and the Custodian or a Subcustodian, as the case
may be.
(iii) Any
Securities deposited or maintained in a Securities System shall be held in an
account ("Account") of the Custodian or a Subcustodian in the Securities System
that includes only assets held by the Custodian or a Subcustodian as a custodian
or otherwise for customers.
4
(iv) The books and
records of the Custodian shall at all times identify those Securities belonging
to any one or more Funds which are maintained in a Securities
System.
(v) The
Custodian shall pay for Securities purchased for the account of a Fund only upon
(a) receipt of advice from the Securities System that such Securities have been
transferred to the Account of the Custodian in accordance with the rules of the
Securities System, and (b) the making of an entry on the records of the
Custodian to reflect such payment and transfer for the account of such
Fund. The Custodian shall transfer Securities sold for the account of
a Fund only upon (a) receipt of advice from the Securities System that payment
for such Securities has been transferred to the Account of the Custodian in
accordance with the rules of the Securities System, and (b) the making of an
entry on the records of the Custodian to reflect such transfer and payment for
the account of such Fund. Copies of all advices from the Securities
System relating to transfers of Securities for the account of a Fund shall be
maintained for such Fund by the Custodian. Such copies may be
maintained by the Custodian in electronic form. The Custodian shall
make available to the Fund or its agent on the next business day, by Electronic
Communication, facsimile, or other means reasonably acceptable to both parties,
daily transaction activity that shall include each day’s transactions for the
account of such Fund.
(vi) The Custodian shall,
if requested by a Fund pursuant to Instructions, provide such Fund with reports
obtained by the Custodian or any Subcustodian with respect to a Securities
System's accounting system, internal accounting control and procedures for
safeguarding Securities deposited in the Securities
System.
(c) Free Delivery of
Assets.
Notwithstanding any other provision
of this Agreement and except as provided in Section 3 hereof, the Custodian,
upon receipt of Special Instructions, will undertake to make free delivery of
Assets, provided such Assets are on hand and available, in connection with a
Fund's transactions and to transfer such Assets to such broker, dealer,
Subcustodian, bank, agent, Securities System or otherwise as specified in such
Special Instructions.
(d) Exchange of
Securities.
Upon receipt of Instructions, the
Custodian will exchange Securities held by it for a Fund for other Securities or
cash paid in connection with any reorganization, recapitalization, merger,
consolidation, conversion, or similar event, and will deposit any such
Securities in accordance with the terms of any reorganization or protective
plan.
Unless otherwise directed by
Instructions, the Custodian is authorized to exchange Securities held by it in
temporary form for Securities in definitive form, to surrender Securities for
transfer into a name or nominee name as permitted in Section 4(b)(2), to effect
an exchange of shares in a stock split or when the par value of the stock is
changed, to sell any fractional shares, and, upon receiving payment therefor, to
surrender bonds or other Securities held by it at maturity or
call.
5
(e) Purchases of
Assets.
(1) Securities
Purchases. In accordance with Instructions, the Custodian
shall, with respect to a purchase of Securities, pay for such Securities out of
monies held for a Fund's account for which the purchase was made, but only
insofar as monies are available therein for such purpose, and receive the
Securities so purchased. Unless the Custodian has received Special
Instructions to the contrary, such payment will be made only upon delivery of
such Securities to the Custodian, a clearing corporation of a national
securities exchange of which the Custodian is a member, or a Securities System
in accordance with the provisions of Section 4(b)(3)
hereof. Notwithstanding the foregoing, (i) in connection with a
repurchase agreement, the Custodian may release funds to a Securities System
prior to the receipt of advice from the Securities System that the Securities
underlying such repurchase agreement have been transferred by book-entry into
the Account maintained with such Securities System by the Custodian, provided
that the Custodian's instructions to the Securities System require that the
Securities System may make payment of such funds to the other party to the
repurchase agreement only upon transfer by book-entry of the Securities
underlying the repurchase agreement into such Account; (ii) in the case of
options, Interest Bearing Deposits, currency deposits and other
deposits, and foreign exchange transactions, pursuant to Sections 4(g), 4(k),
and 4(l) hereof, the Custodian may make payment therefor before receipt of an
advice of transaction; and (iii) the Custodian may make payment for Securities
or other Assets prior to delivery thereof in accordance with Instructions,
applicable laws, generally accepted trade practices, or the terms of the
instrument representing such Security or other Asset, including, but not limited
to, Securities and other Assets as to which payment for the Security and receipt
of the instrument evidencing the Security are under generally accepted trade
practices or the terms of the instrument representing the Security expected to
take place in different locations or through separate parties.
(2) Other Assets
Purchased. Upon receipt of Instructions and except as
otherwise provided herein, the Custodian shall pay for and receive other Assets
for the account of a Fund as provided in Instructions.
(f) Sales of
Assets.
(1) Securities
Sold. In accordance with Instructions, the Custodian shall,
with respect to a sale, deliver or cause to be delivered the Securities thus
designated as sold to the broker or other person specified in the Instructions
relating to such sale. Unless the Custodian has received Special
Instructions to the contrary, such delivery shall be made only upon receipt of
payment therefor in the form of: (a) cash, certified check, bank cashier's
check, bank credit, or bank wire transfer; (b) credit to the account of the
Custodian with a clearing corporation of a national securities exchange of which
the Custodian is a member; or (c) credit to the Account of the Custodian with a
Securities System, in accordance with the provisions of Section 4(b)(3)
hereof. Notwithstanding the foregoing, the Custodian may deliver
Securities and other Assets prior to receipt of payment for such Securities in
accordance with Instructions, applicable laws, generally accepted trade
practices, or the terms of the instrument representing such Security or other
Asset. For example, Securities held in physical form may be delivered
and paid for in accordance with "street delivery custom" to a broker or its
clearing agent, against delivery to the Custodian of a receipt for such
Securities, provided that the Custodian shall have taken reasonable steps to
ensure prompt collection of the payment for, or return of, such Securities by
the broker or its clearing agent, and provided further that the Custodian shall
not be responsible for the selection of or the failure or inability to perform
of such broker or its clearing agent or for any related loss arising from
delivery or custody of such Securities prior to receiving payment
therefor.
(2) Other Assets
Sold. Upon receipt of Instructions and except as otherwise
provided herein, the Custodian shall receive payment for and deliver other
Assets for the account of a Fund as provided in Instructions.
6
(g) Options.
(1) Upon receipt of
Instructions relating to the purchase of an option or sale of a covered call
option, the Custodian shall: (a) receive and retain Instructions or
other documents, to the extent they are provided to the Custodian, evidencing
the purchase or writing of the option by a Fund; (b) if the transaction involves
the sale of a covered call option, deposit and maintain in a segregated account
the Securities (either physically or by book-entry in a Securities System)
subject to the covered call option written on behalf of such Fund; and (c) pay,
release and/or transfer such Securities, cash or other Assets in accordance with
any notices or other communications evidencing the expiration, termination or
exercise of such options which are furnished to the Custodian by the Options
Clearing Corporation (the "OCC"), the securities or options exchanges on which
such options were traded, or such other organization as may be responsible for
handling such option transactions.
(2) Upon receipt of
Instructions relating to the sale of a naked option (including stock index and
commodity options), the Custodian, the appropriate Fund and the broker-dealer
shall enter into an agreement to comply with the rules of the OCC or of any
registered national securities exchange or similar
organizations(s). Pursuant to that agreement and such Fund's
Instructions, the Custodian shall: (a) receive and retain
Instructions or other documents, if any, evidencing the writing of the option;
(b) deposit and maintain in a segregated account, Securities (either physically
or by book-entry in a Securities System), cash and/or other Assets; and (c) pay,
release and/or transfer such Securities, cash or other Assets in accordance with
any such agreement and with any notices or other communications evidencing the
expiration, termination or exercise of such option which are furnished to the
Custodian by the OCC, the securities or options exchanges on which such options
were traded, or such other organization as may be responsible for handling such
option transactions. The appropriate Fund and the broker-dealer shall
be responsible for determining the quality and quantity of assets held in any
segregated account established in compliance with applicable margin maintenance
requirements and the performance of other terms of any option
contract.
(h) Segregated
Accounts.
Upon receipt of Instructions, the
Custodian shall establish and maintain on its books a segregated account or
accounts for and on behalf of a Fund, into which account or accounts may be
transferred Assets of such Fund, including Securities maintained by the
Custodian in a Securities System pursuant to Paragraph (b)(3) of this Section 4,
said account or accounts to be maintained (i) for the purposes set forth in
Sections 4(g) and 4(m) and (ii) for the purpose of compliance by such
Fund with the procedures required by SEC Investment Company Act
Release Number 10666 or any subsequent release or releases relating to the
maintenance of segregated accounts by registered investment companies, or (iii)
for such other purposes as may be set forth, from time to time, in Special
Instructions. The Custodian shall not be responsible for the
determination of the type or amount of Assets to be held in any segregated
account referred to in this paragraph, or for compliance by the Fund with
required procedures noted in (ii) above.
(i) Depositary
Receipts.
Upon receipt of Instructions, the
Custodian shall surrender or cause to be surrendered Securities to the
depository used for such Securities by an issuer of American Depositary Receipts
or International Depositary Receipts (hereinafter referred to, collectively, as
"ADRs"), against a written receipt therefor adequately describing such
Securities and written evidence satisfactory to the organization surrendering
the same that the depository has acknowledged receipt of instructions to issue
ADRs with respect to such Securities in the name of the Custodian or a nominee
of the Custodian, for delivery in accordance with such
instructions.
7
Upon receipt of Instructions, the
Custodian shall surrender or cause to be surrendered ADRs to the issuer thereof,
against a written receipt therefor adequately describing the ADRs surrendered
and written evidence satisfactory to the organization surrendering the same that
the issuer of the ADRs has acknowledged receipt of instructions to cause its
depository to deliver the Securities underlying such ADRs in accordance with
such instructions.
(j) Corporate Actions, Put
Bonds, Called Bonds, Etc.
Upon receipt of Instructions, the
Custodian shall: (a) deliver warrants, puts, calls, rights or similar Securities
to the issuer or trustee thereof (or to the agent of such issuer or trustee) for
the purpose of exercise or sale, provided that the new Securities, cash or other
Assets, if any, acquired as a result of such actions are to be delivered to the
Custodian; and (b) deposit Securities upon invitations for tenders thereof,
provided that the consideration for such Securities is to be paid or delivered
to the Custodian, or the tendered Securities are to be returned to the
Custodian.
Unless otherwise directed to the
contrary in Instructions, the Custodian shall comply with the terms of all
mandatory or compulsory exchanges, calls, tenders, redemptions, or similar
rights of security ownership of which the Custodian receives notice through data
services or publications to which it normally subscribes, and shall promptly
notify the appropriate Fund of such action.
Each Fund agrees that if it gives an
Instruction for the performance of an act on the last permissible date of a
period established by the Custodian or any optional offer or on the last
permissible date for the performance of such act, the Fund shall hold the
Custodian harmless from any adverse consequences in connection with acting upon
or failing to act upon such Instructions.
If a Fund wishes to receive periodic
corporate action notices of exchanges, calls, tenders, redemptions and other
similar notices pertaining to Securities and to provide Instructions with
respect to such Securities via the internet, the Custodian and such Fund may
enter into a Supplement to this Agreement whereby such Fund will be able to
participate in the Custodian’s Electronic Corporate Action Notification
Service.
(k) Interest Bearing
Deposits.
Upon receipt of Instructions
directing the Custodian to purchase interest bearing fixed-term certificates of
deposit or call deposits (hereinafter referred to, collectively, as "Interest
Bearing Deposits") for the account of a Fund, the Custodian shall purchase such
Interest Bearing Deposits with such banks or trust companies, including the
Custodian, any Subcustodian or any subsidiary or affiliate of the Custodian
(hereinafter referred to as "Banking Institutions"), and in such amounts as such
Fund may direct pursuant to Instructions. Such Interest Bearing
Deposits shall be denominated in U.S. dollars. Interest Bearing
Deposits issued by the Custodian shall be in the name of the
Fund. Interest Bearing Deposits issued by another Banking Institution
may be in the name of the Fund or the Custodian or in the name of the Custodian
for its customers generally. The responsibilities of the Custodian to
a Fund for Interest Bearing Deposits issued by the Custodian shall be that of a
U.S. bank for a similar deposit. With respect to Interest Bearing
Deposits issued by any other Banking Institution, (a) the Custodian shall be
responsible for the collection of income and the transmission of cash to and
from such accounts; and (b) the Custodian shall have no duty with respect to the
selection of the Banking Institution or for the failure of such Banking
Institution to pay upon demand.
8
(l) Foreign Exchange
Transactions.
(l) Each Fund may appoint
the Custodian as its agent in the execution of all currency exchange
transactions. If requested, the Custodian agrees to provide exchange
rate and U.S. Dollar information, in writing, or by other means agreeable to
both parties, to the Funds.
(2) Upon receipt of
Instructions, the Custodian shall settle foreign exchange contracts or options
to purchase and sell foreign currencies for spot and future delivery on behalf
of and for the account of a Fund with such currency brokers or Banking
Institutions as such Fund may determine and direct pursuant to
Instructions. If, in its Instructions, a Fund does not direct the
Custodian to utilize a particular currency broker or Banking Institution, the
Custodian is authorized to select such currency broker or Banking Institution as
it deems appropriate to execute the Fund's foreign currency
transaction. It is understood that all such transactions shall be
undertaken by the Custodian as agent for the Funds.
(3) Each Fund accepts full
responsibility for its use of third party foreign exchange brokers and for
execution of said foreign exchange contracts and understands that the Fund shall
be responsible for any and all costs and interest charges which may be incurred
as a result of the failure or delay of its third party broker to deliver foreign
exchange. The Custodian shall have no responsibility or liability
with respect to the selection of the currency brokers or Banking Institutions
with which a Fund deals or the performance or non-performance of such brokers or
Banking Institutions.
(4) Notwithstanding anything
to the contrary contained herein, upon receipt of Instructions the Custodian
may, in connection with a foreign exchange contract, make free outgoing payments
of cash in the form of U.S. Dollars or foreign currency prior to receipt of
confirmation of such foreign exchange contract or confirmation that the
countervalue currency completing such contract has been delivered or
received.
(m) Pledges or Loans of
Securities.
(1) Upon receipt of
Instructions from a Fund, the Custodian will release or cause to be released
Securities held in custody to the pledgees designated in such Instructions by
way of pledge or hypothecation to secure loans incurred by such Fund with
various lenders including but not limited to UMB Bank, n.a.; provided, however,
that the Securities shall be released only upon payment to the Custodian of the
monies borrowed, except that in cases where additional collateral is required to
secure existing borrowings, further Securities may be released or delivered, or
caused to be released or delivered for that purpose upon receipt of
Instructions. Upon receipt of Instructions, the Custodian will pay,
but only from funds available for such purpose, any such loan upon re-delivery
to it of the Securities pledged or hypothecated therefor and upon surrender of
the note or notes evidencing such loan. In lieu of delivering
collateral to a pledgee, the Custodian, on the receipt of Instructions, shall
transfer the pledged Securities to a segregated account for the benefit of the
pledgee.
(2) Upon receipt of
Instructions, the Custodian will release securities to a securities lending
agent appointed by the Fund and designated in such Instructions. The
Custodian shall act upon Instructions from the Fund and/or such agent in order
to effect securities lending transactions on behalf of the Fund. For
its services in facilitating a Fund’s securities lending activities through such
agent, the Custodian may receive from the agent a portion of the agent’s
securities lending revenue or a fee directly from the Fund. The
Custodian shall have no responsibility or liability for any losses arising in
connection with the agent’s actions or omissions, including but not limited to
the delivery of Securities prior to the receipt of collateral, in the absence of
negligence or willful misconduct on the part of the Custodian.
9
(n) Stock Dividends, Rights,
Etc.
The Custodian shall receive and
collect all stock dividends, rights, and other items of like nature and, upon
receipt of Instructions, take action with respect to the same as directed in
such Instructions.
(o) Routine
Dealings.
The Custodian will, in general,
attend to all routine and operational matters in accordance with industry
standards in connection with the sale, exchange, substitution, purchase,
transfer, or other dealings with Securities or other property of each Fund,
except as may be otherwise provided in this Agreement or directed from time to
time by Instructions from any particular Fund. The Custodian may also
make payments to itself or others from the Assets for disbursements and
out-of-pocket expenses incidental to handling Securities or other similar items
relating to its duties under this Agreement, provided that all such payments
shall be accounted for to the appropriate Fund.
(p) Collections.
The Custodian shall (a) collect
amounts due and payable to each Fund with respect to Securities and other
Assets; (b) promptly credit to the account of each Fund all income and other
payments relating to Securities and other Assets held by the Custodian hereunder
upon Custodian's receipt of such income or payments or as otherwise agreed in
writing by the Custodian and any particular Fund; (c) promptly endorse and
deliver any instruments required to effect such collection; and (d) promptly
execute ownership and other certificates, affidavits and other documents for all
federal, state, local and foreign tax purposes in connection with receipt of
income or other payments with respect to Securities and other Assets, or in
connection with the transfer of such Securities or other Assets; provided,
however, that with respect to Securities registered in so-called street name, or
physical Securities with variable interest rates, the Custodian shall use its
best efforts to collect amounts due and payable to any such Fund. The
Custodian shall not be responsible for the collection of amounts due and payable
with respect to Securities or other Assets that are in default.
Any advance credit of cash or
Securities expected to be received shall be subject to actual collection and
may, when the Custodian determines collection unlikely, be reversed by the
Custodian.
(q) Dividends, Distributions and
Redemptions.
To enable each Fund to pay dividends
or other distributions to shareholders of each such Fund and to make payment to
shareholders who have requested repurchase or redemption of their shares of each
such Fund (collectively, the "Shares"), the Custodian shall release cash or
Securities insofar as available. In the case of cash, the Custodian shall, upon
the receipt of Instructions, transfer such funds by check or wire transfer to
any account at any bank or trust company designated by each such Fund in such
Instructions. In the case of Securities, the Custodian shall, upon
the receipt of Special Instructions, make such transfer to any entity or account
designated by each such Fund in such Special Instructions.
(r) Proceeds from Shares
Sold.
The Custodian shall receive funds
representing cash payments received for shares issued or sold from time to time
by each Fund, and shall credit such funds to the account of the appropriate
Fund. The Custodian shall notify the appropriate Fund of Custodian's
receipt of cash in payment for shares issued by such Fund by facsimile
transmission or in such other manner as such Fund and the Custodian shall
agree. Upon receipt of Instructions, the Custodian shall: (a) deliver
all federal funds received by the Custodian in payment for shares as may be set
forth in such Instructions and at a time agreed upon between the Custodian and
such Fund; and (b) make federal funds available to a Fund as of specified times
agreed upon from time to time by such Fund and the Custodian, in the amount of
checks received in payment for shares which are deposited to the accounts of
such Fund.
10
(s) Proxies and Notices;
Compliance with the Shareholders Communication Act of 1985.
The Custodian shall deliver or cause
to be delivered to the appropriate Fund, or its designated agent or proxy
service provider, all forms of proxies, all notices of meetings, and any other
notices or announcements affecting or relating to Securities owned by such Fund
that are received by the Custodian and, upon receipt of Instructions, the
Custodian shall execute and deliver, or cause a Subcustodian or nominee to
execute and deliver such proxies or other authorizations as may be
required. Except as directed pursuant to Instructions, the Custodian
shall not vote upon any such Securities, or execute any proxy to vote thereon,
or give any consent or take any other action with respect thereto.
The Custodian will not release the
identity of any Fund to an issuer which requests such information pursuant to
the Shareholder Communications Act of 1985 for the specific purpose of direct
communications between such issuer and any such Fund unless a particular Fund
directs the Custodian otherwise pursuant to Instructions.
(t) Books and
Records.
The Custodian shall maintain such
records relating to its activities under this Agreement as are required to be
maintained by Rule 31a-1 under the 1940 Act and to preserve them for the periods
prescribed in Rule 31a-2 under the 1940 Act. These records shall be
open for inspection by duly authorized officers, employees or agents (including
independent public accountants) of the appropriate Fund during normal business
hours of the Custodian.
The Custodian shall provide
accountings relating to its activities under this Agreement as shall be agreed
upon by each Fund and the Custodian.
(u) Opinion of Fund's
Independent Certified Public Accountants.
The Custodian shall take all
reasonable action as each Fund may request to obtain from year to year favorable
opinions from each such Fund's independent certified public accountants with
respect to the Custodian's activities hereunder and in connection with the
preparation of each such Fund's periodic reports to the SEC and with respect to
any other requirements of the SEC.
(v) Reports by Independent
Certified Public Accountants.
At the request of a Fund, the
Custodian shall deliver to such Fund a written report, which may be in
electronic form, prepared by the Custodian's independent certified public
accountants with respect to the services provided by the Custodian under this
Agreement, including, without limitation, the Custodian's accounting system,
internal accounting control, financial strength and procedures for safeguarding
cash, Securities and other Assets, including cash, Securities and other Assets
deposited and/or maintained in a Securities System or with a
Subcustodian. Such report shall be of sufficient scope and in
sufficient detail as may reasonably be required by such Fund and as may
reasonably be obtained by the Custodian.
11
(w) Bills and Other
Disbursements.
Upon receipt of Instructions, the
Custodian shall pay, or cause to be paid, all bills, statements, or other
obligations of a Fund.
(x) Precious
Metals
A Fund
may, upon Special Instructions, direct the Custodian to appoint, or instruct the
Domestic Subcustodian to appoint, a depository for the safekeeping and storage
of gold, silver, platinum and other precious metals (“Precious Metals”) on
behalf of such Fund.
(y) Sweep
or Automated Cash Management.
Upon receipt of Instructions, the
Custodian shall invest any otherwise uninvested cash of any Fund held by the
Custodian in a money market mutual fund, a cash deposit product, or other cash
investment vehicle made available by the Custodian from time to time, in
accordance with the directions contained in such Instructions. A fee
may be charged or a spread may be received by the Custodian for investing the
Fund’s otherwise uninvested cash in the available cash investment vehicles or
products.
The Custodian shall have no
responsibility to determine whether any purchases of money market mutual fund
shares or any other cash investment vehicle or cash deposit product by or on
behalf of the Funds under the terms of this section will cause any Fund to
exceed the limitations contained in the 1940 Act on ownership of shares of
another registered investment company or any other asset or portfolio
restrictions or limitations contained in applicable laws or regulations or the
Funds’ prospectus. Each Fund agrees to indemnify and hold harmless
the Custodian from all losses, damages and expenses (including attorney’s fees)
suffered or incurred by the Custodian as a result of a violation by such Fund of
the limitations on ownership of shares of another registered investment company
or any other cash investment vehicle or cash deposit product.
5. SUBCUSTODIANS.
From time
to time, in accordance with the relevant provisions of this Agreement, (i) the
Custodian may appoint one or more Domestic Subcustodians, Foreign Subcustodians,
Special Subcustodians or Interim Subcustodians (each as hereinafter defined) to
act on behalf of any one or more Funds; and (ii) the Custodian may be directed,
pursuant to an agreement between a Fund and the Custodian (“Delegation
Agreement”), to appoint a Domestic Subcustodian to perform the duties of the
Foreign Custody Manager (as such term is defined in Rule 17f-5 under the 1940
Act) (“Approved Foreign Custody Manager”) for such Fund so long as such Domestic
Subcustodian is so eligible under the 1940 Act. Such Delegation
Agreement shall provide that the appointment of any Domestic Subcustodian as the
Approved Foreign Custody Manager must be governed by a written agreement between
the Custodian and the Domestic Subcustodian, which provides for compliance with
Rule 17f-5. The Approved Foreign Custody Manager may then
appoint a Foreign Subcustodian or Interim Subcustodian in accordance with this
Section 5. For purposes of this Agreement, all Domestic
Subcustodians, Special Subcustodians, Foreign Subcustodians and Interim
Subcustodians shall be referred to collectively as
“Subcustodians.”
12
(a) Domestic
Subcustodians.
The Custodian may, at any time and from
time to time, appoint any bank as defined in Section 2(a)(5) of the 1940 Act or
any trust company or other entity, any of which meets the requirements of a
custodian under Section 17(f) of the 1940 Act and the rules and regulations
thereunder, to act for the Custodian on behalf of any one or more Funds as a
subcustodian for purposes of holding Assets of such Fund(s) and performing other
functions of the Custodian within the United States (a "Domestic
Subcustodian"). Each Fund shall approve in writing the appointment of
the proposed Domestic Subcustodian; and the Custodian's appointment of any such
Domestic Subcustodian shall not be effective without such prior written approval
of the Fund(s). Each such duly approved Domestic Subcustodian shall be reflected
on Appendix A hereto.
(b) Foreign
Subcustodians.
(1) Foreign
Subcustodians. The Approved Foreign Custody Manager may appoint any
entity meeting the requirements of an Eligible Foreign Custodian, as such term
is defined in Rule 17f-5(a)(1) under the 1940 Act, and which term shall also
include a bank that qualifies to serve as a custodian of assets of investment
companies under Section 17(f) of the 1940 Act or by SEC order is exempt
therefrom (each a “Foreign Subcustodian” in the context of either a subcustodian
or a sub-subcustodian), for purposes of holding Assets of the Fund(s) and
performing other functions of the Custodian in countries other than the United
States, provided that the Approved Foreign Custody Manager’s appointments of
such Foreign Subcustodians shall at all times be governed by an agreement that
complies with Rule 17f-5.
(2) Notwithstanding
the foregoing, in the event that the Approved Foreign Custody Manager determines
that it will not provide delegation services (i) in a country in which a Fund
has directed that the Fund invest in a security or other Asset or (ii) with
respect to a specific Foreign Subcustodian which the Fund has directed be used,
the Custodian shall, or shall cause the Approved Foreign Custody Manager to,
promptly notify the Fund in writing by facsimile transmission, Electronic
Communication, or otherwise of the unavailability of the Approved Foreign
Custody Manager’s delegation services in such country. The Custodian
and the Approved Foreign Custody Manager (or Domestic Subcustodian) as
applicable, shall be entitled to rely on and shall have no liability or
responsibility for following such direction from the Fund as a Special
Instruction and shall have no duties or liabilities under this Agreement save
those that it may undertake specifically in writing with respect to each
particular instance. Upon the receipt of such Special Instructions,
the Custodian may, in it absolute discretion, designate, or cause the Approved
Foreign Custody Manager to designate, an entity (defined herein as “Interim
Subcustodian”) designated by the Fund in such Special Instructions, to hold such
security or other Asset. In such event, the Fund represents and
warrants that it has made a determination that the arrangement with such Interim
Subcustodian satisfies the requirements of the 1940 Act and the rules and
regulations thereunder (including Rule 17f-5, if applicable). It is
further understood that where the Approved Foreign Custody Manager and the
Custodian do not agree to provide fully to the Fund the services under this
Agreement and the Delegation Agreement with respect to a particular country or
specific Foreign Subcustodian, the Fund may delegate such services to another
delegate pursuant to Rule 17f-5.
13
(c) Special
Subcustodians.
Upon receipt of Special Instructions,
the Custodian shall, on behalf of a Fund, appoint one or more banks, trust
companies or other entities designated in such Special Instructions to act for
the Custodian on behalf of such Fund as a subcustodian for purposes of: (i)
effecting third-party repurchase transactions with banks, brokers, dealers or
other entities through the use of a common custodian or subcustodian; (ii)
providing depository and clearing agency services with respect to certain
variable rate demand note Securities, (iii) providing depository and clearing
agency services with respect to dollar denominated Securities; and (iv)
effecting any other transactions designated by such Fund in such Special
Instructions. Each such designated subcustodian (hereinafter referred to as a
"Special Subcustodian") shall be listed on Appendix A attached hereto, as it may
be amended from time to time. In connection with the appointment of
any Special Subcustodian, the Custodian may enter into a subcustodian agreement
with the Special Subcustodian.
(d) Termination of a
Subcustodian.
The Custodian or Domestic
Subcustodian may, at any time in its discretion upon notification to the
appropriate Fund(s), terminate any Subcustodian of such Fund(s) in accordance
with the termination provisions under the applicable subcustodian agreement, and
upon the receipt of Special Instructions, the Custodian or Domestic Subcustodian
shall terminate any Subcustodian in accordance with the termination provisions
under the applicable subcustodian agreement.
(e) Information Regarding
Foreign Subcustodians.
Upon request of a Fund, the Custodian
shall deliver, or cause any Approved Foreign Custody Manager to deliver, to the
Fund a letter or list stating: (i) the identity of each Foreign
Subcustodian then acting on behalf of the Custodian; (ii) the Eligible
Securities Depositories (as defined in Section 5(f)) in each foreign market
through which each Foreign Subcustodian is then holding cash, securities and
other Assets of the Fund; and (iii) such other information as may be requested
by the Fund to ensure compliance with rules and regulations under the 1940
Act.
(f) Eligible Securities
Depositories.
(1) The Custodian or the
Domestic Subcustodian may place and maintain a Fund’s Foreign Assets with
an Eligible Securities Depository (as defined in Rule 17f-7, which term shall
include any other securities depository for which the SEC by exemptive order has
permitted registered investment companies to maintain their
assets).
(2) Upon the request of a
Fund, the Custodian shall direct the Domestic Subcustodian to provide to the
Fund (including the Fund’s board of directors or trustees) and/or the Fund’s
adviser or other agent an analysis of the custody risks associated with
maintaining the Fund’s Foreign Assets with such Eligible Securities Depository
utilized directly or indirectly by the Custodian or the Domestic Subcustodian as
of the date hereof (or, in the case of an Eligible Securities Depository not so
utilized as of the date hereof, prior to the placement of the Fund’s Foreign
Assets at such depository) and at which any Foreign Assets of the Fund are held
or are expected to be held. The Custodian shall direct the Domestic
Subcustodian to monitor the custody risks associated with maintaining the Fund’s
Foreign Assets at each such Eligible Securities Depository on a continuing basis
and shall promptly notify the Fund or its adviser of any material changes in
such risks through the Approved Foreign Custody Manager’s letter, market alerts
or other periodic correspondence.
14
(3) The Custodian shall
direct the Domestic Subcustodian to determine the eligibility under Rule 17f-7
of each foreign securities depository before maintaining the Fund’s Foreign
Assets therewith and shall promptly advise the Fund if any Eligible Securities
Depository ceases to be so eligible. Notwithstanding Subsection 17(c)
hereof, Eligible Securities Depositories may, subject to Rule 17f-7, be added to
or deleted from such list from time to time.
(4) Withdrawal of
Assets. If an arrangement with an Eligible Securities Depository no
longer meets the requirements of Rule 17f-7, the Custodian shall direct the
Domestic Subcustodian to withdraw the Fund’s Foreign Assets from such depository
as soon as reasonably practicable.
(5) Standard of
Care. In fulfilling its responsibilities under this Section 5(f), the
Custodian will exercise reasonable care, prudence and diligence.
6. STANDARD
OF CARE.
(a) General Standard of
Care.
The Custodian shall exercise due care
in accordance with reasonable commercial standards in discharging its duties
hereunder. The Custodian shall be liable to a Fund for all losses,
damages and reasonable costs and expenses suffered or incurred by such Fund
resulting from the negligence or willful misconduct of the Custodian; provided,
however, in no event shall the Custodian be liable for attorneys’ fees or for
special, indirect, consequential or punitive damages arising under or in
connection with this Agreement.
(b) Actions Prohibited by
Applicable Law, Etc.
In no
event shall the Custodian incur liability hereunder if the Custodian or any
Subcustodian or Securities System, or any Subcustodian, Eligible Securities
Depository utilized by any such Subcustodian, or any nominee of the Custodian or
any Subcustodian (individually, a “Person”) is prevented, forbidden or delayed
from performing, or omits to perform, any act or thing which this Agreement
provides shall be performed or omitted to be performed, by reason
of: (i) any provision of any present or future law or regulation or
order of the United States of America, or any state thereof, or of any foreign
country, or political subdivision thereof or of any court of competent
jurisdiction (and neither the Custodian nor any other Person shall be obligated
to take any action contrary thereto); or (ii) any “Force Majeure,” which for
purposes of this Agreement, shall mean any circumstance or event which is beyond
the reasonable control of the Custodian, a Subcustodian or any agent of the
Custodian or a Subcustodian and which adversely affects the performance by the
Custodian of its obligations hereunder, by the Subcustodian of its obligations
under its subcustodian agreement or by any other agent of the Custodian or the
Subcustodian, unless in each case, such delay or nonperformance is caused by the
negligence or willful misconduct of the Custodian. Such Force Majeure
events may include any event caused by, arising out of or involving (a) an act
of God, (b) accident, fire, water damage or explosion, (c) any computer, system
outage or downtime or other equipment failure or malfunction caused by any
computer virus or any other reason or the malfunction or failure of any
communications medium, (d) any interruption of the power supply or other utility
service, (e) any strike or other work stoppage, whether partial or total, (f)
any delay or disruption resulting from or reflecting the occurrence of any
Sovereign Risk (as defined below), (g) any disruption of, or suspension of
trading in, the securities, commodities or foreign exchange markets, whether or
not resulting from or reflecting the occurrence of any Sovereign Risk, (h) any
encumbrance on the transferability of cash, currency or a currency position
on the actual settlement date of a foreign exchange transaction, whether or not
resulting from or reflecting the occurrence of any Sovereign Risk, or (i) any
other cause similarly beyond the reasonable control of the
Custodian.
15
Subject
to the Custodian’s general standard of care set forth in Subsection 6(a) hereof
and the requirements of Section 17(f) of the 1940 Act and Rules 17f-5 and 17f-7
thereunder, the Custodian shall not incur liability hereunder if any Person is
prevented, forbidden or delayed from performing, or omits to perform, any act or
thing which this Agreement provides shall be performed or omitted to be
performed by reason of any (i) “Sovereign Risk,” which for the purpose of this
Agreement shall mean, in respect of any jurisdiction, including but not limited
to the United States of America, where investments are acquired or held under
this Agreement, (a) any act of war, terrorism, riot, insurrection or civil
commotion, (b) the imposition of any investment, repatriation or exchange
control restrictions by any governmental authority, (c) the confiscation,
expropriation or nationalization of any investments by any governmental
authority, whether de facto or de jure, (d) any devaluation or revaluation of
the currency, (e) the imposition of taxes, levies or other charges affecting
investments, (f) any change in the applicable law, or (g) any other economic,
systemic or political risk incurred or experienced that is not directly related
to the economic or financial conditions of the Eligible Foreign Custodian,
except as otherwise provided in this Agreement or the Delegation Agreement, or
(ii) “Country Risk,” which for the purpose of this Agreement shall mean, with
respect to the acquisition, ownership, settlement or custody of investments in a
jurisdiction, all risks relating to, or arising in consequence of, systemic and
markets factors affecting the acquisition, payment for or ownership of
investments, including (a) the prevalence of crime and corruption in such
jurisdiction, (b) the inaccuracy or unreliability of business and financial
information (unrelated to the Approved Foreign Custody Manager’s duties imposed
by Rule 17f-5(c) under the 1940 Act or to the duties imposed on the Custodian by
Rule 17f-7 under the 1940 Act), (c) the instability or volatility of banking and
financial systems, or the absence or inadequacy of an infrastructure to support
such systems, (d) custody and settlement infrastructure of the market in which
such investments are transacted and held, (e) the acts, omissions and operation
of any Eligible Securities Depository, it being understood that this provision
shall not excuse the Custodian’s performance under the express terms of this
Agreement, (f) the risk of the bankruptcy or insolvency of banking agents,
counterparties to cash and securities transactions, registrars or transfer
agents, (g) the existence of market conditions which prevent the orderly
execution or settlement of transactions or which affect the value of assets, and
(h) the laws relating to the safekeeping and recovery of a Fund’s Foreign Assets
held in custody pursuant to the terms of this Agreement; provided, however,
that, in compliance with Rule 17f-5, neither Sovereign Risk nor Country Risk
shall include the custody risk of a particular Eligible Foreign Custodian of a
Fund’s Foreign Assets.
(c) Liability for Past
Records.
Neither the Custodian nor any
Domestic Subcustodian shall have any liability in respect of any loss, damage or
expense suffered by a Fund, insofar as such loss, damage or expense arises from
the performance of the Custodian or any Domestic Subcustodian in reliance upon
records that were maintained for such Fund by entities other than the Custodian
or any Domestic Subcustodian prior to the Custodian's employment
hereunder.
16
(d) Advice of
Counsel.
The Custodian and all Domestic
Subcustodians shall be entitled to receive and act upon advice of counsel of its
own choosing on all matters. The Custodian and all Domestic
Subcustodians shall be without liability for any actions taken or omitted in
good faith pursuant to the advice of counsel.
(e) Advice of the Fund and
Others.
The Custodian and any Domestic
Subcustodian may rely upon the advice of any Fund and upon statements of such
Fund's accountants and other persons believed by it in good faith to be expert
in matters upon which they are consulted, and neither the Custodian nor any
Domestic Subcustodian shall be liable for any actions taken or omitted, in good
faith, pursuant to such advice or statements.
(f) Information
Services.
The Custodian may rely upon
information received from issuers of Securities or agents of such issuers,
information received from Subcustodians or depositories, information from data
reporting services that provide detail on corporate actions and other securities
information, and other commercially reasonable industry sources; and, provided
the Custodian has acted in accordance with the standard of care set forth in
Section 6 (a), the Custodian shall have no liability as a result of relying upon
such information sources, including but not limited to errors in any such
information.
(g) Instructions Appearing to be
Genuine.
The Custodian and all Domestic
Subcustodians shall be fully protected and indemnified in acting as a custodian
hereunder upon any Resolutions of the Board of Directors or Trustees,
Instructions, Special Instructions, advice, notice, request, consent,
certificate, instrument or paper appearing to it to be genuine and to have been
properly executed and shall, unless otherwise specifically provided herein, be
entitled to receive as conclusive proof of any fact or matter required to be
ascertained from any Fund hereunder a certificate signed by any officer of such
Fund authorized to countersign or confirm Special Instructions. The
Custodian shall have no duty to inquire into or investigate the validity ,
accuracy or content of any Instruction or Special Instruction. The
Custodian shall have no liability for any losses, damages or expenses incurred
by a Fund arising from the use of a non-secure form of email or other non-secure
electronic system or process.
(h) No Investment
Advice.
The Custodian shall have no duty to
assess the risks inherent in Securities or other Assets or to provide investment
advice, accounting or other valuation services regarding any such Securities or
other Assets.
(i) Exceptions from
Liability.
Without limiting the generality of
any other provisions hereof, neither the Custodian nor any Domestic Subcustodian
shall be under any duty or obligation to inquire into, nor be liable
for:
17
(i) the validity
of the issue of any Securities purchased by or for any Fund, the legality of the
purchase thereof or evidence of ownership required to be received by any such
Fund, or the propriety of the decision to purchase or amount paid
therefor;
(ii) the legality of the
sale, transfer or movement of any Securities by or for any Fund, or
the propriety of the amount for which the same were sold; or
(iii) any other
expenditures, encumbrances of Securities, borrowings or similar actions with
respect to any Fund's Assets;
and may,
until notified to the contrary, presume that all Instructions or Special
Instructions received by it are not in conflict with or in any way contrary to
any provisions of any such Fund's Declaration of Trust, Partnership Agreement,
Articles of Incorporation or By-Laws or votes or proceedings of the
shareholders, trustees, partners or directors of any such Fund, or any such
Fund's currently effective Registration Statement on file with the
SEC.
7. LIABILITY
OF THE CUSTODIAN FOR ACTIONS OF OTHERS.
(a) Domestic
Subcustodians
Except as provided in Section 7(d),
the Custodian shall be liable for the acts or omissions of any Domestic
Subcustodian to the same extent as if such actions or omissions were performed
by the Custodian itself.
(b) Liability for Acts and
Omissions of Foreign Subcustodians.
The Custodian shall be liable to a
Fund for any loss or damage to such Fund caused by or resulting from the acts or
omissions of any Foreign Subcustodian only to the extent that, under the terms
set forth in the subcustodian agreement between the Custodian or a Domestic
Subcustodian and such Foreign Subcustodian, the Foreign Subcustodian has failed
to perform in accordance with the standard of conduct imposed under such
subcustodian agreement and the Custodian or Domestic Subcustodian recovers from
the Foreign Subcustodian under the applicable subcustodian
agreement.
(c) Securities Systems, Interim
Subcustodians, Special Subcustodians, Eligible Securities
Depositories.
The Custodian shall not be liable to
any Fund for any loss, damage or expense suffered or incurred by such Fund
resulting from or occasioned by the actions or omissions of a Securities System,
Interim Subcustodian, Special Subcustodian, or Eligible Securities Depository
unless such loss, damage or expense is caused by, or results from, the
negligence or willful misconduct of the Custodian.
(d) Failure of Third
Parties.
The Custodian shall not be liable for
any loss, damage or expense suffered or incurred by any Fund resulting from or
occasioned by the actions, omissions, neglects, defaults, insolvency or other
failure of any (i) issuer of any Securities or of any agent of such issuer; (ii)
any counterparty with respect to any Security or other Asset, including any
issuer of any option, futures, derivatives or commodities contract; (iii)
investment adviser or other agent of a Fund; or (iv) any broker, bank, trust
company or any other person with whom the Custodian may deal (other than any of
such entities acting as a Subcustodian, Securities System or Eligible Securities
Depository, for whose actions the liability of the Custodian is set out
elsewhere in this Agreement); or (v) any agent or depository (including but not
limited to a securities lending agent or precious metals depository) with whom
the Custodian may deal at the direction of, and behalf of, a Fund; unless such
loss, damage or expense is caused by, or results from, the negligence or willful
misconduct of the Custodian or the Custodian’s breach of the terms of any
contract between the Funds and the Custodian.
18
8. INDEMNIFICATION.
(a) Indemnification by
Fund.
Subject to the limitations set forth
in this Agreement, each Fund agrees to indemnify and hold harmless the Custodian
and its nominees from all losses, damages and expenses (including attorneys'
fees) suffered or incurred by the Custodian or its nominee caused by or arising
from actions taken by the Custodian, its employees or agents in the performance
of its duties and obligations under this Agreement, including, but not limited
to, any indemnification obligations undertaken by the Custodian under any
relevant subcustodian agreement; provided, however, that such indemnity shall
not apply to the extent the Custodian is liable under Sections 6 or 7
hereof.
If any Fund requires the Custodian to
take any action with respect to Securities, which action involves the payment of
money or which may, in the opinion of the Custodian, result in the Custodian or
its nominee assigned to such Fund being liable for the payment of money or
incurring liability of some other form, such Fund, as a prerequisite to
requiring the Custodian to take such action, shall provide indemnity to the
Custodian in an amount and form satisfactory to it.
Each Fund agrees to indemnify and
hold harmless the Custodian for any action the Custodian takes or does not take
in reliance upon directions, Instructions or Special Instructions except for
such action or inaction resulting from the Custodian’s negligence or willful
misconduct.
(b) Indemnification by
Custodian.
Subject to the limitations set forth
in this Agreement, the Custodian agrees to indemnify and hold harmless each Fund
from all losses, damages and expenses (with the exception of those damages and
expenses referenced in Section 6(a)) suffered or incurred by each such Fund
caused by the negligence or willful misconduct of the Custodian.
9. ADVANCES.
In the event that the Custodian or
any Subcustodian, Securities System, or Eligible Securities Depository acting
either directly or indirectly under agreement with the Custodian (each of which
for purposes of this Section 9 shall be referred to as "Custodian"), makes any
payment or transfer of funds on behalf of any Fund as to which there would be,
at the close of business on the date of such payment or transfer, insufficient
funds held by the Custodian on behalf of any such Fund, the Custodian may, in
its discretion without further Instructions, provide an advance ("Advance") to
any such Fund in an amount sufficient to allow the completion of the transaction
by reason of which such payment or transfer of funds is to be
made. In addition, in the event the Custodian is directed by
Instructions to make any payment or transfer of funds on behalf of any Fund as
to which it is subsequently determined that such Fund has overdrawn its cash
account with the Custodian as of the close of business on the date of such
payment or transfer, said overdraft shall constitute an Advance. Any
Advance shall be payable by the Fund on behalf of which the Advance was made on
demand by Custodian, unless otherwise agreed by such Fund and the Custodian, and
shall accrue interest from the date of the Advance to the date of payment by
such Fund to the Custodian at a rate determined from time to time by the
Custodian. It is understood that any transaction in respect of which
the Custodian shall have made an Advance, including but not limited to a foreign
exchange contract or transaction in respect of which the Custodian is not acting
as a principal, is for the account of and at the risk of the Fund on behalf of
which the Advance was made, and not, by reason of such Advance, deemed to be a
transaction undertaken by the Custodian for its own account and
risk. The Custodian and each of the Funds which are parties to this
Agreement acknowledge that the purpose of Advances is to finance temporarily the
purchase or sale of Securities for prompt delivery in accordance with the
settlement terms of such transactions or to meet emergency expenses not
reasonably foreseeable by a Fund. The Custodian shall promptly notify the
appropriate Fund of any Advance. Such notification may be
communicated by telephone, Electronic Communication or facsimile transmission or
in such other manner as the Custodian may choose. Nothing herein
shall be deemed to create an obligation on the part of the Custodian to advance
monies to a Fund.
19
10. SECURITY
INTEREST.
To secure the due and prompt payment
of all Advances, together with any taxes, charges, fees, expenses, assessments,
obligations, claims or liabilities incurred by the Custodian in connection with
its performance of any duties under this Agreement (collectively,
“Liabilities”), except for any Liabilities arising from or the Custodian’s
negligence or willful misconduct, each Fund grants to the Custodian a
security interest in all of the Fund’s Securities and other Assets now or
hereafter in the possession of the Custodian and all proceeds thereof
(collectively, the “Collateral”). A Fund shall promptly reimburse the
Custodian for any and all such Liabilities. In the event that a Fund
fails to satisfy any of the Liabilities as and when due and payable, the
Custodian shall have in respect of the Collateral, in addition to all other
rights and remedies arising hereunder or under local law, the rights and
remedies of a secured party under the Uniform Commercial
Code. Without prejudice to the Custodian’s rights under applicable
law, the Custodian shall be entitled, without notice to the Fund, to
withhold delivery of any Collateral, sell, set-off, or otherwise realize upon or
dispose of any such Collateral and to apply the money or other proceeds and any
other monies credited to the Fund in satisfaction of the
Liabilities. This includes, but is not limited to, any interest on
any such unpaid Liability as the Custodian deems reasonable, and all costs and
expenses (including reasonable attorney’s fees) incurred by the Custodian in
connection with the sale, set-off or other disposition of such
Collateral.
11. COMPENSATION.
Each Fund will pay to the Custodian
such compensation as is agreed to in writing by the Custodian and each such Fund
from time to time. In addition, each Fund shall reimburse the
Custodian for all out-of-pocket expenses incurred by the Custodian in connection
with this Agreement, but excluding salaries and usual overhead
expenses. Such compensation, and expenses shall be billed to each
such Fund and paid in cash to the Custodian.
12. POWERS OF
ATTORNEY.
Upon request, each Fund shall deliver
to the Custodian such proxies, powers of attorney or other instruments as may be
reasonable and necessary or desirable in connection with the performance by the
Custodian or any Subcustodian of their respective obligations under this
Agreement or any applicable subcustodian agreement.
20
13. TAX
LAWS.
The
Custodian shall have no responsibility or liability for any obligations now or
hereafter imposed on a Fund or on the Custodian as custodian for such Fund by
the tax law of any country or of any state or political subdivision
thereof. Each Fund agrees to indemnify the Custodian for and against
any such obligations including taxes, tax reclaims, withholding and reporting
requirements, claims for exemption or refund, additions for late payment,
interest, penalties and other expenses (including legal expenses) that may be
assessed against the Fund or the Custodian as custodian of a Fund.
14. TERMINATION
AND ASSIGNMENT.
Any Fund or the Custodian may
terminate this Agreement by notice in writing, delivered or mailed, postage
prepaid (certified mail, return receipt requested) to the other not less than 90
days prior to the date upon which such termination shall take
effect. Upon termination of this Agreement, the appropriate Fund
shall pay to the Custodian such fees as may be due the Custodian hereunder as
well as its reimbursable disbursements, costs and expenses paid or
incurred. Upon termination of this Agreement, the Custodian shall
deliver, at the terminating party's expense, all Assets held by it hereunder to
a successor custodian designated by the Fund or, if a successor custodian is not
designated, then to the appropriate Fund or as otherwise designated by such Fund
by Special Instructions. Upon such delivery, the Custodian shall have
no further obligations or liabilities under this Agreement except as to the
final resolution of matters relating to activity occurring prior to the
effective date of termination. In the event that for any reason
Securities or other Assets remain in the possession of the Custodian after the
date such termination shall take effect, the Custodian shall be entitled to
compensation at the same rates as agreed to by the Custodian and the Funds
during the term of this Agreement as set forth in Section 11.
This Agreement may not be assigned by
the Custodian or any Fund without the respective consent of the
other.
15. ADDITIONAL
FUNDS.
An additional Fund or Funds may
become a party to this Agreement after the date hereof by an instrument in
writing to such effect signed by such Fund or Funds and the
Custodian. If this Agreement is terminated as to one or more of the
Funds (but less than all of the Funds) or if an additional Fund or Funds shall
become a party to this Agreement, there shall be delivered to each party an
Appendix B or an amended Appendix B, signed by each of the additional Funds (if
any) and each of the remaining Funds as well as the Custodian, deleting or
adding such Fund or Funds, as the case may be. The termination of
this Agreement as to less than all of the Funds shall not affect the obligations
of the Custodian and the remaining Funds hereunder as set forth on the signature
page hereto and in Appendix B as revised from time to time.
16. NOTICES.
As to each Fund, notices, requests,
instructions and other writings delivered to [INSERT FUND COMPLEX ADDRESS],
postage prepaid, or to such other address as any particular Fund may have
designated to the Custodian in writing, shall be deemed to have been properly
delivered or given to a Fund.
21
Notices, requests, instructions and
other writings delivered to the Custodian at its office at 000 Xxxxx Xxxx., 0xx
Xxxxx, Attn: Xxxxxx Xxxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000, postage
prepaid, or to such other addresses as the Custodian may have
designated to each Fund in writing, shall be deemed to have been properly
delivered or given to the Custodian hereunder; provided, however, that
procedures for the delivery of Instructions and Special Instructions shall be
governed by Section 2(c) hereof.
17. CONFIDENTIALITY.
The parties agree that all
Information, books and records provided by the Custodian or the Funds to each
other in connection with this Agreement, and all information provided by either
party pertaining to its business or operations, is “Confidential
Information.” All Confidential Information shall be used by the party
receiving such information only for the purpose of providing or obtaining
services under this Agreement and, except as may be required to carry out the
terms of this Agreement, shall not be disclosed to any other party without the
express consent of the party providing such Confidential
Information. The foregoing limitations shall not apply to any
information that is available to the general public other than as a result
of a breach of this Agreement, or that is required to be disclosed by or to any
entity having regulatory authority over a party hereto or any auditor of a party
hereto or that is required to be disclosed as a result of a subpoena or other
judicial process, or otherwise by applicable laws.
18. ANTI-MONEY
LAUNDERING COMPLIANCE.
The Funds represent and warrant that
they have established and maintain policies and procedures designed to meet the
requirements imposed by the USA PATRIOT Act, including policies and procedures
designed to detect and prevent money laundering, including those required by the
USA PATRIOT Act. The Funds agree to provide to the Custodian, from
time to time upon the request of the Custodian, certifications regarding its
compliance with the USA PATRIOT Act and other anti-money laundering
laws. The Funds acknowledge that, because the Custodian will not have
information regarding the shareholders of the Funds, the Funds will assume
responsibility for customer identification and verification and other CIP
requirements in regard to such shareholders.
19. MISCELLANEOUS.
(a) This Agreement is
executed and delivered in the State of Missouri and shall be governed by the
laws of such state.
(b) All of the terms and
provisions of this Agreement shall be binding upon, and inure to the benefit of,
and be enforceable by the respective successors and assigns of the parties
hereto.
(c) No provisions of this
Agreement may be amended, modified or waived in any manner except in writing,
properly executed by both parties hereto; provided, however, Appendix A may be
amended from time to time as Domestic Subcustodians, Securities Systems,
and Special Subcustodians are approved or terminated according to the terms
of this Agreement.
(d) The captions in this
Agreement are included for convenience of reference only, and in no way define
or delimit any of the provisions hereof or otherwise affect their construction
or effect.
(e) This Agreement shall
be effective as of the date of execution hereof.
(f) This Agreement may be
executed simultaneously in two or more counterparts, each of which will be
deemed an original, but all of which together will constitute one and the same
instrument.
22
(g) The following terms
are defined terms within the meaning of this Agreement, and the definitions
thereof are found in the following sections of the Agreement:
Term
|
Section
|
|
Account
|
4(b)(3)(iii)
|
|
ADR'S
|
4(i)
|
|
Advance
|
9
|
|
Approved
Foreign Custody Manager
|
5
|
|
Assets
|
1
|
|
Authorized
Person
|
3
|
|
Banking
Institution
|
4(k)
|
|
Collateral
|
10
|
|
Confidential
Information
|
17
|
|
Country
Risk
|
6(b)
|
|
Delegation
Agreement
|
5
|
|
Domestic
Subcustodian
|
5(a)
|
|
Electronic
Communication
|
2(a)(iv)
|
|
Eligible
Securities Depository
|
5(f)
|
|
Force
Majeure
|
6(b)
|
|
Foreign
Assets
|
2(g)
|
|
Foreign
Subcustodian
|
5(b)(1)
|
|
Instruction
|
2(a)
|
|
Interim
Subcustodian
|
5(b)(2)
|
|
Interest
Bearing Deposit
|
4(k)
|
|
Liabilities
|
10
|
|
OCC
|
4(g)(1)
|
|
Person
|
6(b)
|
|
Precious
Metals
|
4(x)
|
|
SEC
|
4(b)(3)
|
|
Securities
|
1
|
|
Securities
System
|
4(b)(3)
|
|
Shares
|
4(q)
|
|
Sovereign
Risk
|
6(b)
|
|
Special
Instruction
|
2(b)
|
|
Special
Subcustodian
|
5(c)
|
|
Subcustodian
|
|
5
|
(h) If any part, term or
provision of this Agreement is held to be illegal, in conflict with any law or
otherwise invalid by any court of competent jurisdiction, the remaining portion
or portions shall be considered severable and shall not be affected, and the
rights and obligations of the parties shall be construed and enforced as if this
Agreement did not contain the particular part, term or provision held to be
illegal or invalid.
23
(i) Entire
Agreement. This Agreement and the Delegation Agreement (if
applicable), as amended from time to time, constitute the entire understanding
and agreement of the parties thereto with respect to the subject matter therein
and accordingly, supersedes as of the effective date of this Agreement any
custodian agreement heretofore in effect between the Funds and the
Custodian.
(j) The
rights and obligations contained in Sections 6, 7, 8, 9, 10, 11 and 17 of this
Agreement shall continue, notwithstanding the termination of this Agreement, in
order to fulfill the intention of the parties as described in such
Sections.
IN WITNESS WHEREOF, the
parties hereto have caused this Custody Agreement to be executed by their
respective duly authorized officers.
[INSERT
MUTUAL FUND COMPLEX]
|
||
Attest:
|
By:
|
|
Name:
|
||
Title:
|
||
|
||
Date:
|
||
UMB
BANK, N.A.
|
||
Attest:
|
By:
|
|
Name: Xxxxxx
X. Xxxxxxx
|
||
Title: Vice-President
|
||
Date:
|
24
APPENDIX
A
The following Subcustodians and
Securities Systems are approved for use in connection with the Custody Agreement
dated _______________________________.
SECURITIES
SYSTEMS:
Depository Trust Company
Federal Book Entry
SPECIAL
SUBCUSTODIANS:
DOMESTIC
SUBCUSTODIANS:
Citibank (Foreign
Securities Only)
[INSERT
MUTUAL FUND COMPLEX]
|
UMB
BANK, N.A.
|
|
By:
|
By:
|
|
Name:
|
Name: Xxxxxx
X. Xxxxxxx
|
|
Title:
|
Title: Vice-President
|
|
Date:
|
Date:
|
00
XXXXXXXX
X
The following open-end registered
investment companies ("Funds") are hereby made parties to the Custody Agreement
dated _________________________, with UMB Bank, n.a. ("Custodian") and
_____________________, and agree to be bound by all the terms and conditions
contained in said Agreement:
[LIST THE
FUNDS]
[INSERT
MUTUAL FUND COMPLEX]
|
||
Attest:
|
By:
|
|
Name:
|
||
Title:
|
||
Date:
|
||
UMB
BANK, N.A.
|
||
Attest:
|
By:
|
|
Name: Xxxxxx
X. Xxxxxxx
|
||
Title: Vice
President
|
||
Date:
|
26