FORM OF CUSTODY AGREEMENT Dated ______________, 2009 Between UMB BANK, N.A. and THE ALERIAN MLP FUNDS TRUST
Exhibit
28(g)
FORM
OF CUSTODY AGREEMENT
Dated
______________, 2009
Between
UMB
BANK, N.A.
and
TABLE OF CONTENTS
|
SECTION
|
PAGE
|
||
|
1.
|
Appointment
of Custodian
|
1
|
|
|
2.
|
Definitions
|
1
|
|
|
(a)
Securities
|
1
|
||
|
(b)
Assets
|
1
|
||
|
(c)
Instructions and Special Instructions
|
1
|
||
|
3.
|
Delivery
of Corporate Documents
|
2
|
|
|
4.
|
Powers
and Duties of Custodian and Domestic Subcustodian
|
2
|
|
|
(a)
Safekeeping
|
3
|
||
|
(b)
Manner of Holding Securities
|
3
|
||
|
(c)
Free Delivery of Assets
|
4
|
||
|
(d)
Exchange of Securities
|
4
|
||
|
(e)
Purchases of Assets
|
4
|
||
|
(f)
Sales of Assets
|
5
|
||
|
(g)
Options
|
5
|
||
|
(h)
Futures Contracts
|
6
|
||
|
(i)
Segregated Accounts
|
6
|
||
|
(j)
Depositary Receipts
|
6
|
||
|
(k)
Corporate Actions, Put Bonds, Called Bonds, Etc.
|
6
|
||
|
(l)
Interest Bearing Deposits
|
7
|
||
|
(m)
Foreign Exchange Transactions
|
7
|
||
|
(n)
Pledges or Loans of Securities
|
8
|
||
|
(o)
Stock Dividends, Rights, Etc.
|
8
|
||
|
(p)
Routine Dealings
|
8
|
||
|
(q)
Collections
|
8
|
||
|
(r)
Bank Accounts
|
9
|
||
|
(s)
Dividends, Distributions and Redemptions
|
9
|
||
|
(t)
Proceeds from Shares Sold
|
9
|
||
|
(u)
Proxies and Notices; Compliance with the Shareholders
|
|||
|
Communication
Act of 1985
|
9
|
||
|
(v)
Books and Records
|
9
|
||
|
(w)
Opinion of Fund's Independent Registered Public
Accountants
|
10
|
||
|
(x)
Reports by Independent Certified Public Accountants
|
10
|
||
|
(y)
Bills and Others Disbursements
|
10
|
||
|
5.
|
Subcustodians
|
10
|
|
|
(a)
Domestic Subcustodians
|
10
|
||
|
(b)
Foreign Subcustodians
|
10
|
||
|
(c)
Interim Subcustodians
|
11
|
||
|
(d)
Special Subcustodians
|
11
|
||
|
(e)
Termination of a Subcustodian
|
11
|
||
|
(f)
Certification Regarding Foreign Subcustodians
|
11
|
||
|
6.
|
Standard
of Care
|
12
|
|
|
(a)
General Standard of Care
|
12
|
||
|
(b)
Actions Prohibited by Applicable Law, Events Beyond Custodian’s Control,
Armed
|
12
|
||
|
Conflict,
Sovereign Risk, Etc.
|
|||
|
(c)
Liability for Past Records
|
12
|
||
|
(d)
Advice of Counsel
|
12
|
|
(e)
Advice of the Fund and Others
|
12
|
||
|
(f)
Instructions Appearing to be Genuine
|
13
|
||
|
(g)
Exceptions from Liability
|
13
|
||
|
7.
|
Liability
of the Custodian for Actions of Others
|
13
|
|
|
(a)
Domestic Subcustodians
|
13
|
||
|
(b)
Liability for Acts and Omissions of Foreign Subcustodians
|
13
|
||
|
(c)
Securities Systems, Interim Subcustodians, Special Subcustodians,
Securities
|
13
|
||
|
Depositories
and Clearing Agencies
|
|||
|
(d)
Defaults or Insolvency of Brokers, Banks, Etc.
|
14
|
||
|
(e)
Reimbursement of Expenses
|
14
|
||
|
8.
|
Indemnification
|
14
|
|
|
(a)
Indemnification by the Funds
|
14
|
||
|
(b)
Indemnification by the Custodian
|
14
|
||
|
9.
|
Advances
|
14
|
|
|
10.
|
Liens
|
15
|
|
|
11.
|
Compensation
|
15
|
|
|
12.
|
Powers
of Attorney
|
15
|
|
|
13.
|
Termination
and Assignment
|
15
|
|
|
14.
|
Additional
Funds
|
15
|
|
|
15.
|
Notices
|
16
|
|
|
16.
|
Miscellaneous
|
16
|
FORM
OF CUSTODY AGREEMENT
This agreement made as of this day of , 2010, between
UMB Bank, n.a., a national banking association with its principal place of
business located in Kansas City, Missouri (hereinafter the "Custodian"), and
each of the Funds listed on Appendix B hereof, together with such additional
Funds which shall be made parties to this Agreement by the execution of Appendix
B hereto (individually, a "Fund" and collectively, the "Funds").
WITNESSETH:
WHEREAS, each Fund is
registered as an open-end management investment company under the Investment
Company Act of 1940, as amended; and
WHEREAS, each Fund desires to
appoint the 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 deposited with the
Custodian. The Custodian accepts such appointment as a custodian and
agrees to perform the duties and responsibilities of the Custodian as set forth
herein on the conditions set forth herein. The Custodian shall at all times meet
the requirements of a custodian under Section 17(f) of the 1940 Act and the
rules and regulations thereunder.
2. DEFINITIONS.
For purposes of this Agreement, the
following terms shall have the meanings so indicated:
(a) "Security" or
"Securities" shall mean stocks, bonds, bills, rights, script, warrants, interim
certificates and all negotiable or nonnegotiable paper commonly known as
Securities and other instruments or obligations.
(b) "Assets" shall mean
Securities, monies and other property held by the Custodian for the benefit of a
Fund.
(c)(1) "Instructions," as
used herein, shall mean: (i) a tested telex, a written (including, without
limitation, facsimile transmission) request, direction, instruction or
certification signed or initialed by or on behalf of a Fund by an Authorized
Person; (ii) a telephonic or other oral communication from a person the
Custodian reasonably believes to be an Authorized Person; or (iii) a
communication effected directly between an electro-mechanical or electronic
device or system (including, without limitation, computers) on behalf of a
Fund. Custodian recommends that any Instructions transmitted by a
Fund via email be done so only through a secure system or
process. Custodian can make available to Fund a secure email system
if Fund so desires. Instructions in the form of oral communications
shall be confirmed by the appropriate Fund by tested telex or in writing in the
manner set forth in clause (i) above, but the lack of such confirmation shall in
no way affect any action taken by the Custodian in reliance upon such oral
Instructions prior to the Custodian's receipt of such
confirmation. Each Fund authorizes the Custodian to record any and
all telephonic or other oral Instructions communicated to the
Custodian.
(c)(2) "Special
Instructions," as used herein, shall mean Instructions countersigned or
confirmed in writing by the Treasurer or any Assistant Treasurer of a Fund or
any other person designated by the Treasurer of such Fund in writing, which
countersignature or confirmation shall be included on the same instrument
containing the Instructions or on a separate instrument relating
thereto.
1
(c)(3) Instructions and
Special Instructions shall be delivered to the Custodian at the address and/or
telephone, facsimile transmission or telex number agreed upon from time to time
by the Custodian and each Fund.
(c)(4) Where appropriate,
Instructions and Special Instructions shall be continuing
instructions.
3. DELIVERY
OF CORPORATE DOCUMENTS.
Each of the parties to this Agreement
represents that its execution does not violate any of the provisions of its
respective charter, articles of incorporation, articles of association or bylaws
and all required corporate action to authorize the execution and delivery of
this Agreement has been taken.
Each Fund has furnished the Custodian
with copies, properly certified or authenticated, with all amendments or
supplements thereto, of the following documents:
|
|
(a) Certificate
of Incorporation (or equivalent document) of the Fund as in effect on the
date hereof;
|
|
|
(b) By-Laws
of the Fund as in effect on the date
hereof;
|
|
|
(c) Resolutions
of the Board of Directors of the Fund appointing the Custodian and
approving the form of this Agreement;
and
|
|
|
(d) The
Fund's current prospectus and statements of additional
information.
|
Each Fund shall promptly furnish the
Custodian with copies of any updates, amendments or supplements to the foregoing
documents.
In addition, each Fund has delivered or
will promptly deliver to the Custodian, copies of the resolution(s) of its Board
of Directors or Trustees and all amendments or supplements thereto, properly
certified or authenticated, designating certain officers or employees of each
such Fund who will have continuing authority to certify to the Custodian: (a)
the names, titles, signatures and scope of authority of all persons authorized
to give Instructions or any other notice, request, direction, instruction,
certificate or instrument on behalf of each Fund, and (b) the names, titles and
signatures of those persons authorized to countersign or confirm Special
Instructions on behalf of each Fund (in both cases collectively, the "Authorized
Persons" and individually, an "Authorized Person"). Such resolutions
and certificates may be accepted and relied upon by the Custodian as conclusive
evidence of the facts set forth therein and shall be considered to be in full
force and effect until delivery to the Custodian of a similar resolution or
certificate to the contrary. Upon delivery of a certificate which
deletes or does not include the name(s) of a person previously authorized to
give Instructions or to countersign or confirm Special Instructions, such
persons shall no longer be considered an Authorized Person authorized to give
Instructions or to countersign or confirm Special
Instructions. Unless the certificate specifically requires that the
approval of anyone else will first have been obtained, the Custodian will be
under no obligation to inquire into the right of the person giving such
Instructions or Special Instructions to do so. Notwithstanding any of
the foregoing, no Instructions or Special Instructions received by the Custodian
from a Fund will be deemed to authorize or permit any director, trustee,
officer, employee, or agent of such Fund to withdraw any of the Assets of such
Fund upon the mere receipt of such authorization, Special Instructions or
Instructions from such director, trustee, officer, employee or
agent.
4. POWERS
AND DUTIES OF CUSTODIAN AND DOMESTIC SUBCUSTODIAN.
Except for Assets held by any
Subcustodian appointed pursuant to Sections 5(b), (c), or (d) of this Agreement,
the Custodian shall have and perform the powers and duties hereinafter set forth
in this Section 4. For purposes of this Section 4 all references to
powers and duties of the "Custodian" shall also refer to any Domestic
Subcustodian appointed pursuant to Section 5(a).
2
(a) Safekeeping.
The Custodian will keep safely the
Assets of each Fund which are delivered to it from time to time. The
Custodian shall not be responsible for any property of a Fund held or received
by such Fund and not delivered to the Custodian.
(b) Manner of Holding
Securities.
(1) The Custodian shall at
all times hold Securities of each Fund either: (i) by physical possession of the
share certificates or other instruments representing such Securities in
registered or bearer form; or (ii) in book-entry form by a Securities System (as
hereinafter defined) in accordance with the provisions of sub-paragraph (3)
below.
(2) The Custodian may hold
registrable portfolio Securities which have been delivered to it in physical
form, by registering the same in the name of the appropriate Fund or its
nominee, or in the name of the Custodian or its nominee, for whose actions such
Fund and Custodian, respectively, shall be fully responsible. Upon
the receipt of Instructions, the Custodian shall hold such Securities in street
certificate form, so called, with or without any indication of fiduciary
capacity. However, unless it receives Instructions to the contrary,
the Custodian will register all such portfolio Securities in the name of the
Custodian's authorized nominee. All such Securities shall be held in
an account of the Custodian containing only assets of the appropriate Fund or
only assets held by the Custodian as a fiduciary, provided that the records of
the Custodian shall indicate at all times the Fund or other customer for which
such Securities are held in such accounts and the respective interests
therein.
(3) The Custodian may
deposit and/or maintain domestic Securities owned by a Fund in, and each Fund
hereby approves use of: (a) The Depository Trust Company; and (b) any
book-entry system as provided in (i) Subpart O of Treasury Circular ▇▇. ▇▇▇, ▇▇
▇▇▇ 306.115, (ii) Subpart B of Treasury Circular Public Debt Series ▇▇. ▇▇-▇▇,
▇▇ ▇▇▇ 350.2, or (iii) the book-entry regulations of federal agencies
substantially in the form of 31 CFR 306.115. Upon the receipt of
Special Instructions, the Custodian may deposit and/or maintain domestic
Securities owned by a Fund in any other domestic clearing agency registered with
the Securities and Exchange Commission ("SEC") under Section 17A of the
Securities Exchange Act of 1934 (or as may otherwise be authorized by the SEC to
serve in the capacity of depository or clearing agent for the Securities or
other assets of investment companies) which acts as a Securities
depository. Each of the foregoing shall be referred to in this
Agreement as a "Securities System," and all such Securities Systems shall be
listed on the attached Appendix A. Use of a Securities System shall
be in accordance with applicable Federal Reserve Board and SEC rules and
regulations, if any, and subject to the following provisions:
(i) The
Custodian may deposit the Securities directly or through one or more agents or
Subcustodians which are also qualified to act as custodians for investment
companies.
(ii) The
Custodian shall deposit and/or maintain the Securities in a Securities System,
provided that such Securities are represented in an account ("Account") of the
Custodian in the Securities System that includes only assets held by the
Custodian as a fiduciary, custodian or otherwise for customers.
(iii) The
books and records of the Custodian shall at all times identify those Securities
belonging to any one or more Funds which are maintained in a Securities
System.
(iv) The
Custodian shall pay for Securities purchased for the account of a Fund only upon
(a) receipt of advice from the Securities System that such Securities have been
transferred to the Account of the Custodian in accordance with the rules of the
Securities System, and (b) the making of an entry on the records of the
Custodian to reflect such payment and transfer for the account of such
Fund. The Custodian shall transfer Securities sold for the account of
a Fund only upon (a) receipt of advice from the Securities System that payment
for such Securities has been transferred to the Account of the Custodian in
accordance with the rules of the Securities System, and (b) the making of an
entry on the records of the Custodian to reflect such transfer and payment for
the account of such Fund. Copies of all advices from the Securities
System relating to transfers of Securities for the account of a Fund shall be
maintained for such Fund by the Custodian. The Custodian shall
deliver to a Fund on the next succeeding business day daily transaction reports
that shall include each day's transactions in the Securities System for the
account of such Fund. Such transaction reports shall be delivered to
such Fund or any agent designated by such Fund pursuant to Instructions, by
computer or in such other manner as such Fund and Custodian may
agree.
3
(v) The
Custodian shall, if requested by a Fund pursuant to Instructions, provide such
Fund with reports obtained by the Custodian or any Subcustodian with respect to
a Securities System's accounting system, internal accounting control and
procedures for safeguarding Securities deposited in the Securities
System.
(vi) Upon
receipt of Special Instructions, the Custodian shall terminate the use of any
Securities System on behalf of a Fund as promptly as practicable and shall take
all actions reasonably practicable to safeguard the Securities of such Fund
maintained with such Securities System.
(c) Free Delivery of
Assets.
Notwithstanding any other provision
of this Agreement and except as provided in Section 3 hereof, the Custodian,
upon receipt of Special Instructions, will undertake to make free delivery of
Assets, provided such Assets are on hand and available, in connection with a
Fund's transactions and to transfer such Assets to such broker, dealer,
Subcustodian, bank, agent, Securities System or otherwise as specified in such
Special Instructions.
(d) Exchange of
Securities.
Upon receipt of Instructions, the
Custodian will exchange portfolio Securities held by it for a Fund for other
Securities or cash paid in connection with any reorganization, recapitalization,
merger, consolidation, or conversion of convertible Securities, and will deposit
any such Securities in accordance with the terms of any reorganization or
protective plan.
Without Instructions, the Custodian
is authorized to exchange Securities held by it in temporary form for Securities
in definitive form, to surrender Securities for transfer into a name or nominee
name as permitted in Section 4(b)(2), to effect an exchange of shares in a stock
split or when the par value of the stock is changed, to sell any fractional
shares, and, upon receiving payment therefor, to surrender bonds or other
Securities held by it at maturity or call.
(e) Purchases of
Assets.
(1) Securities
Purchases. In accordance with Instructions, the Custodian
shall, with respect to a purchase of Securities, pay for such Securities out of
monies held for a Fund's account for which the purchase was made, but only
insofar as monies are available therein for such purpose, and receive the
portfolio Securities so purchased. Unless the Custodian has received
Special Instructions to the contrary, such payment will be made only upon
receipt of Securities by the Custodian, a clearing corporation of a national
Securities exchange of which the Custodian is a member, or a Securities System
in accordance with the provisions of Section 4(b)(3)
hereof. Notwithstanding the foregoing, upon receipt of Instructions:
(i) in connection with a repurchase agreement, the Custodian may release funds
to a Securities System prior to the receipt of advice from the Securities System
that the Securities underlying such repurchase agreement have been transferred
by book-entry into the Account maintained with such Securities System by the
Custodian, provided that the Custodian's instructions to the Securities System
require that the Securities System may make payment of such funds to the other
party to the repurchase agreement only upon transfer by book-entry of the
Securities underlying the repurchase agreement into such Account; (ii) in the
case of Interest Bearing Deposits, currency deposits, and other deposits,
foreign exchange transactions, futures contracts or options, pursuant to
Sections 4(g), 4(h), 4(l), and 4(m) hereof, the Custodian may make payment
therefor before receipt of an advice of transaction; and (iii) in the case of
Securities as to which payment for the Security and receipt of the instrument
evidencing the Security are under generally accepted trade practice or the terms
of the instrument representing the Security expected to take place in different
locations or through separate parties, such as commercial paper which is indexed
to foreign currency exchange rates, derivatives and similar Securities, the
Custodian may make payment for such Securities prior to delivery thereof in
accordance with such generally accepted trade practice or the terms of the
instrument representing such Security.
4
(2) Other Assets
Purchased. Upon receipt of Instructions and except as
otherwise provided herein, the Custodian shall pay for and receive other Assets
for the account of a Fund as provided in Instructions.
(f) Sales of
Assets.
(1) Securities
Sold. In accordance with Instructions, the Custodian will,
with respect to a sale, deliver or cause to be delivered the Securities thus
designated as sold to the broker or other person specified in the Instructions
relating to such sale. Unless the Custodian has received Special
Instructions to the contrary, such delivery shall be made only upon receipt of
payment therefor in the form of: (a) cash, certified check, bank cashier's
check, bank credit, or bank wire transfer; (b) credit to the account of the
Custodian with a clearing corporation of a national Securities exchange of which
the Custodian is a member; or (c) credit to the Account of the Custodian with a
Securities System, in accordance with the provisions of Section 4(b)(3)
hereof. Notwithstanding the foregoing, Securities held in physical
form may be delivered and paid for in accordance with "street delivery custom"
to a broker or its clearing agent, against delivery to the Custodian of a
receipt for such Securities, provided that the Custodian shall have taken
reasonable steps to ensure prompt collection of the payment for, or return of,
such Securities by the broker or its clearing agent, and provided further that
the Custodian shall not be responsible for the selection of or the failure or
inability to perform of such broker or its clearing agent or for any related
loss arising from delivery or custody of such Securities prior to receiving
payment therefor.
(2) Other Assets
Sold. Upon receipt of Instructions and except as otherwise
provided herein, the Custodian shall receive payment for and deliver other
Assets for the account of a Fund as provided in Instructions.
(g) Options.
(1) Upon receipt of
Instructions relating to the purchase of an option or sale of a covered call
option, the Custodian shall: (a) receive and retain confirmations or
other documents, if any, evidencing the purchase or writing of the option by a
Fund; (b) if the transaction involves the sale of a covered call option, deposit
and maintain in a segregated account the Securities (either physically or by
book-entry in a Securities System) subject to the covered call option written on
behalf of such Fund; and (c) pay, release and/or transfer such Securities, cash
or other Assets in accordance with any notices or other communications
evidencing the expiration, termination or exercise of such options which are
furnished to the Custodian by the Options Clearing Corporation (the "OCC"), the
securities or options exchanges on which such options were traded, or such other
organization as may be responsible for handling such option
transactions.
(2) Upon receipt of
Instructions relating to the sale of a naked option (including stock index and
commodity options), the Custodian, the appropriate Fund and the broker-dealer
shall enter into an agreement to comply with the rules of the OCC or of any
registered national securities exchange or similar
organizations(s). Pursuant to that agreement and such Fund's
Instructions, the Custodian shall: (a) receive and retain
confirmations or other documents, if any, evidencing the writing of the option;
(b) deposit and maintain in a segregated account, Securities (either physically
or by book-entry in a Securities System), cash and/or other Assets; and (c) pay,
release and/or transfer such Securities, cash or other Assets in accordance with
any such agreement and with any notices or other communications evidencing the
expiration, termination or exercise of such option which are furnished to the
Custodian by the OCC, the securities or options exchanges on which such options
were traded, or such other organization as may be responsible for handling such
option transactions. The appropriate Fund and the broker-dealer shall
be responsible for determining the quality and quantity of assets held in any
segregated account established in compliance with applicable margin maintenance
requirements and the performance of other terms of any option
contract.
5
(h) Futures
Contracts.
Upon receipt of Instructions, the
Custodian shall enter into a futures margin procedural agreement among the
appropriate Fund, the Custodian and the designated futures commission merchant
(a "Procedural Agreement"). Under the Procedural Agreement the
Custodian shall: (a) receive and retain confirmations, if any,
evidencing the purchase or sale of a futures contract or an option on a futures
contract by such Fund; (b) deposit and maintain in a segregated account cash,
Securities and/or other Assets designated as initial, maintenance or variation
"margin" deposits intended to secure such Fund's performance of its obligations
under any futures contracts purchased or sold, or any options on futures
contracts written by such Fund, in accordance with the provisions of any
Procedural Agreement designed to comply with the provisions of the Commodity
Futures Trading Commission and/or any commodity exchange or contract market
(such as the Chicago Board of Trade), or any similar organization(s), regarding
such margin deposits; and (c) release Assets from and/or transfer Assets into
such margin accounts only in accordance with any such Procedural
Agreements. The appropriate Fund and such futures commission merchant
shall be responsible for determining the type and amount of Assets held in the
segregated account or paid to the broker-dealer in compliance with applicable
margin maintenance requirements and the performance of any futures contract or
option on a futures contract in accordance with its terms.
(i) Segregated
Accounts.
Upon receipt of Instructions, the
Custodian shall establish and maintain on its books a segregated account or
accounts for and on behalf of a Fund, into which account or accounts may be
transferred Assets of such Fund, including Securities maintained by the
Custodian in a Securities System
pursuant
to Paragraph (b)(3) of this Section 4, said account or accounts to be maintained
(i) for the purposes set forth in Sections 4(g), 4(h) and 4(n) and (ii) for the
purpose of compliance by such Fund with the procedures required by the SEC
Investment Company Act Release Number 10666 or any subsequent release or
releases relating to the maintenance of segregated accounts by registered
investment companies, or (iii) for such other purposes as may be set forth, from
time to time, in Special Instructions. The Custodian shall not be
responsible for the determination of the type or amount of Assets to be held in
any segregated account referred to in this paragraph, or for compliance by the
Fund with required procedures noted in (ii) above.
(j) Depositary
Receipts.
Upon receipt of Instructions, the
Custodian shall surrender or cause to be surrendered Securities to the
depositary used for such Securities by an issuer of American Depositary Receipts
or International Depositary Receipts (hereinafter referred to, collectively, as
"ADRs"), against a written receipt therefor adequately describing such
Securities and written evidence satisfactory to the organization surrendering
the same that the depositary has acknowledged receipt of instructions to issue
ADRs with respect to such Securities in the name of the Custodian or a nominee
of the Custodian, for delivery in accordance with such
instructions.
Upon
receipt of Instructions, the Custodian shall surrender or cause to be
surrendered ADRs to the issuer thereof, against a written receipt therefor
adequately describing the ADRs surrendered and written evidence satisfactory to
the organization surrendering the same that the issuer of the ADRs has
acknowledged receipt of instructions to cause its depository to deliver the
Securities underlying such ADRs in accordance with such
instructions.
(k) Corporate Actions, Put
Bonds, Called Bonds, Etc.
Upon receipt of Instructions, the
Custodian shall: (a) deliver warrants, puts, calls, rights or similar Securities
to the issuer or trustee thereof (or to the agent of such issuer or trustee) for
the purpose of exercise or sale, provided that the new Securities, cash or other
Assets, if any, acquired as a result of such actions are to be delivered to the
Custodian; and (b) deposit Securities upon invitations for tenders thereof,
provided that the consideration for such Securities is to be paid or delivered
to the Custodian, or the tendered Securities are to be returned to the
Custodian.
Notwithstanding any provision of this
Agreement to the contrary, the Custodian shall take all necessary action, unless
otherwise directed to the contrary in Instructions, to comply with the terms of
all mandatory or compulsory exchanges, calls, tenders, redemptions, or similar
rights of security ownership of which the Custodian receives notice through
publications to which it normally subscribes, and shall notify the appropriate
Fund of such action in writing by facsimile transmission or in such other manner
as such Fund and Custodian may agree in writing.
6
The Fund agrees that if it gives an
Instruction for the performance of an act on the last permissible date of a
period established by any optional offer or on the last permissible date for the
performance of such act, the Fund shall hold the Custodian harmless from any
adverse consequences in connection with acting upon or failing to act upon such
Instructions.
(l) Interest Bearing
Deposits.
Upon receipt of Instructions
directing the Custodian to purchase interest bearing fixed term and call
deposits (hereinafter referred to, collectively, as "Interest Bearing Deposits")
for the account of a Fund, the Custodian shall purchase such Interest Bearing
Deposits in the name of such Fund with such banks or trust companies, including
the Custodian, any Subcustodian or any subsidiary or affiliate of the Custodian
(hereinafter referred to as "Banking Institutions"), and in such amounts as such
Fund may direct pursuant to Instructions. Such Interest Bearing
Deposits may be denominated in U.S. dollars or other currencies, as such Fund
may determine and direct pursuant to Instructions. The
responsibilities of the Custodian to a Fund for Interest Bearing Deposits issued
by the Custodian shall be that of a U.S. bank for a similar
deposit. With respect to Interest Bearing Deposits other than those
issued by the Custodian, (a) the Custodian shall be responsible for the
collection of income and the transmission of cash to and from such accounts; and
(b) the Custodian shall have no duty with respect to the selection of the
Banking Institution or for the failure of such Banking Institution to pay upon
demand.
(m) Foreign Exchange
Transactions.
(l) Each Fund hereby
appoints the Custodian as its agent in the execution of all currency exchange
transactions. The Custodian agrees to provide exchange rate and U.S.
Dollar information, in writing, to the Funds. Such information shall
be supplied by the Custodian at least by the business day prior to the value
date of the foreign exchange transaction, provided that the Custodian receives
the request for such information at least two business days prior to the value
date of the transaction.
(2) Upon receipt of
Instructions, the Custodian shall settle foreign exchange contracts or options
to purchase and sell foreign currencies for spot and future delivery on behalf
of and for the account of a Fund with such currency brokers or Banking
Institutions as such Fund may determine and direct pursuant to
Instructions. If, in its Instructions, a Fund does not direct the
Custodian to utilize a particular currency broker or Banking Institution, the
Custodian is authorized to select such currency broker or Banking Institution as
it deems appropriate to execute the Fund's foreign currency
transaction.
(3) Each Fund accepts full
responsibility for its use of third party foreign exchange brokers and for
execution of said foreign exchange contracts and understands that the Fund shall
be responsible for any and all costs and interest charges which may be incurred
as a result of the failure or delay of its third party broker to deliver foreign
exchange. The Custodian shall have no responsibility or liability
with respect to the selection of the currency brokers or Banking Institutions
with which a Fund deals or the performance of such brokers or Banking
Institutions.
(4) Notwithstanding anything
to the contrary contained herein, upon receipt of Instructions the Custodian
may, in connection with a foreign exchange contract, make free outgoing payments
of cash in the form of U.S. Dollars or foreign currency prior to receipt of
confirmation of such foreign exchange contract or confirmation that the
countervalue currency completing such contract has been delivered or
received.
(5) The Custodian shall not
be obligated to enter into foreign exchange transactions as
principal. However, if the Custodian has made available to a Fund its
services as a principal in foreign exchange transactions and subject to any
separate agreement between the parties relating to such transactions, the
Custodian shall enter into foreign exchange contracts or options to purchase and
sell foreign currencies for spot and future delivery on behalf of and for the
account of the Fund, with the Custodian as principal.
7
(n) Pledges or Loans of
Securities.
(1) Upon receipt of
Instructions from a Fund, the Custodian will release or cause to be released
Securities held in custody to the pledgees designated in such Instructions by
way of pledge or hypothecation to secure loans incurred by such Fund with
various lenders including but not limited to UMB Bank, n.a.; provided, however,
that the Securities shall be released only upon payment to the Custodian of the
monies borrowed, except that in cases where additional collateral is required to
secure existing borrowings, further Securities may be released or delivered, or
caused to be released or delivered for that purpose upon receipt of
Instructions. Upon receipt of Instructions, the Custodian will pay,
but only from funds available for such purpose, any such loan upon re-delivery
to it of the Securities pledged or hypothecated therefor and upon surrender of
the note or notes evidencing such loan. In lieu of delivering
collateral to a pledgee, the Custodian, on the receipt of Instructions, shall
transfer the pledged Securities to a segregated account for the benefit of the
pledgee.
(2) Upon receipt of Special
Instructions, and execution of a separate Securities Lending Agreement, the
Custodian will release Securities held in custody to the borrower designated in
such Instructions and may, except as otherwise provided below, deliver such
Securities prior to the receipt of collateral, if any, for such borrowing,
provided that, in case of loans of Securities held by a Securities System that
are secured by cash collateral, the Custodian's instructions to the Securities
System shall require that the Securities System deliver the Securities of the
appropriate Fund to the borrower thereof only upon receipt of the collateral for
such borrowing. The Custodian shall have no responsibility or
liability for any loss arising from the delivery of Securities prior to the
receipt of collateral. Upon receipt of Instructions and the loaned
Securities, the Custodian will release the collateral to the
borrower.
(o) Stock Dividends, Rights,
Etc.
The Custodian shall receive and
collect all stock dividends, rights, and other items of like nature and, upon
receipt of Instructions, take action with respect to the same as directed in
such Instructions.
(p) Routine
Dealings.
The Custodian will, in general,
attend to all routine and mechanical matters in accordance with industry
standards in connection with the sale, exchange, substitution, purchase,
transfer, or other dealings with Securities or other property of each Fund
except as may be otherwise provided in this Agreement or directed from time to
time by Instructions from any particular Fund. The Custodian may also
make payments to itself or others from the Assets for disbursements and
out-of-pocket expenses incidental to handling Securities or other similar items
relating to its duties under this Agreement, provided that all such payments
shall be accounted for to the appropriate Fund.
(q) Collections.
The Custodian shall (a) collect
amounts due and payable to each Fund with respect to portfolio Securities and
other Assets; (b) promptly credit to the account of each Fund all income and
other payments relating to portfolio Securities and other Assets held by the
Custodian hereunder upon Custodian's receipt of such income or payments or as
otherwise agreed in writing by the Custodian and any particular Fund; (c)
promptly endorse and deliver any instruments required to effect such collection;
and (d) promptly execute ownership and other certificates and affidavits for all
federal, state, local and foreign tax purposes in connection with receipt of
income or other payments with respect to portfolio Securities and other Assets,
or in connection with the transfer of such Securities or other Assets; provided,
however, that with respect to portfolio Securities registered in so-called
street name, or physical Securities with variable interest rates, the Custodian
shall use its best efforts to collect amounts due and payable to any such
Fund. The Custodian shall notify a Fund in writing by facsimile
transmission or in such other manner as such Fund and Custodian may agree in
writing if any amount payable with respect to portfolio Securities or other
Assets is not received by the Custodian when due. The Custodian shall
not be responsible for the collection of amounts due and payable with respect to
portfolio Securities or other Assets that are in default.
8
(r) Bank
Accounts.
Upon Instructions, the Custodian
shall open and operate a bank account or accounts on the books of the Custodian;
provided that such bank account(s) shall be in the name of the Custodian or a
nominee thereof, for the account of one or more Funds, and shall be subject only
to draft or order of the Custodian. The responsibilities of the
Custodian to any one or more such Funds for deposits accepted on the Custodian's
books shall be that of a U.S. bank for a similar deposit.
(s) Dividends, Distributions and
Redemptions.
To enable each Fund to pay dividends
or other distributions to shareholders of each such Fund and to make payment to
shareholders who have requested repurchase or redemption of their shares of each
such Fund (collectively, the "Shares"), the Custodian shall release cash or
Securities insofar as available. In the case of cash, the Custodian
shall, upon the receipt of Instructions, transfer such funds by check or wire
transfer to any account at any bank or trust company designated by each such
Fund in such Instructions. In the case of Securities, the Custodian
shall, upon the receipt of Special Instructions, make such transfer to any
entity or account designated by each such Fund in such Special
Instructions.
(t) Proceeds from Shares
Sold.
The Custodian shall receive funds
representing cash payments received for shares issued or sold from time to time
by each Fund, and shall credit such funds to the account of the appropriate
Fund. The Custodian shall notify the appropriate Fund of Custodian's
receipt of cash in payment for shares issued by such Fund by facsimile
transmission or in such other manner as such Fund and the Custodian shall
agree. Upon receipt of Instructions, the Custodian shall: (a) deliver
all federal funds received by the Custodian in payment for shares as may be set
forth in such Instructions and at a time agreed upon between the Custodian and
such Fund; and (b) make federal funds available to a Fund as of specified times
agreed upon from time to time by such Fund and the Custodian, in the amount of
checks received in payment for shares which are deposited to the accounts of
such Fund.
(u) Proxies and Notices;
Compliance with the Shareholders Communication Act of 1985.
The Custodian shall deliver or cause
to be delivered to the appropriate Fund all forms of proxies, all notices of
meetings, and any other notices or announcements affecting or relating to
Securities owned by such Fund that are received by the Custodian, any
Subcustodian, or any nominee of either of them, and, upon receipt of
Instructions, the Custodian shall execute and deliver, or cause such
Subcustodian or nominee to execute and deliver, such proxies or other
authorizations as may be required. Except as directed pursuant to
Instructions, neither the Custodian nor any Subcustodian or nominee shall vote
upon any such Securities, or execute any proxy to vote thereon, or give any
consent or take any other action with respect thereto.
The Custodian will not release the
identity of any Fund to an issuer which requests such information pursuant to
the Shareholder Communications Act of 1985 for the specific purpose of direct
communications between such issuer and any such Fund unless a particular Fund
directs the Custodian otherwise in writing.
(v) Books and
Records.
The Custodian shall maintain such
records relating to its activities under this Agreement as are required to be
maintained by Rule 31a-1 under the Investment Company Act of 1940 ("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.
9
(w) Opinion of Fund's
Independent Registered 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 registered public accountants with
respect to the Custodian's activities hereunder and in connection with the
preparation of each such Fund's periodic reports to the SEC and with respect to
any other requirements of the SEC.
(x) Reports by Independent
Certified Public Accountants.
At the request of a Fund, the
Custodian shall deliver to such Fund a written report prepared by the
Custodian's independent certified public accountants with respect to the
services provided by the Custodian under this Agreement, including, without
limitation, the Custodian's accounting system, internal accounting control and
procedures for safeguarding cash, Securities and other Assets, including cash,
Securities and other Assets deposited and/or maintained in a Securities System
or with a Subcustodian. Such report shall be of sufficient scope and
in sufficient detail as may reasonably be required by such Fund and as may
reasonably be obtained by the Custodian.
(y) Bills and Other
Disbursements.
Upon receipt of Instructions, the
Custodian shall pay, or cause to be paid, all bills, statements, or other
obligations of a Fund.
5. SUBCUSTODIANS.
From time to time, in accordance with
the relevant provisions of this Agreement, the Custodian may appoint one or more
Domestic Subcustodians, Foreign Subcustodians, Special Subcustodians, or Interim
Subcustodians (as each are hereinafter defined) to act on behalf of any one or
more Funds. A Domestic Subcustodian, in accordance with the
provisions of this Agreement, may also appoint a Foreign Subcustodian, Special
Subcustodian, or Interim Subcustodian to act on behalf of any one or more
Funds. For purposes of this Agreement, all Domestic Subcustodians,
Foreign Subcustodians, Special Subcustodians and Interim Subcustodians shall be
referred to collectively as "Subcustodians."
(a) Domestic
Subcustodians.
The Custodian may, at any time and
from time to time, appoint any bank as defined in Section 2(a)(5) of the 1940
Act or any trust company or other entity, any of which meet the requirements of
a custodian under Section 17(f) of the 1940 Act and the rules and regulations
thereunder, to act for the Custodian on behalf of any one or more Funds as a
subcustodian for purposes of holding Assets of such Fund(s) and performing other
functions of the Custodian within the United States (a "Domestic
Subcustodian"). Each Fund shall approve in writing the appointment of
the proposed Domestic Subcustodian; and the Custodian's appointment of any such
Domestic Subcustodian shall not be effective without such prior written approval
of the Fund(s). Each such duly approved Domestic Subcustodian shall
be listed on Appendix A attached hereto, as it may be amended, from time to
time.
(b) Foreign
Subcustodians.
The Custodian may at any time
appoint, or cause a Domestic Subcustodian to appoint, any bank, trust company or
other entity meeting the requirements of an "eligible foreign custodian" under
Section 17(f) of the 1940 Act and the rules and regulations thereunder to act
for the Custodian on behalf of any one or more Funds as a subcustodian or
sub-subcustodian (if appointed by a Domestic Subcustodian) for purposes of
holding Assets of the Fund(s) and performing other functions of the Custodian in
countries other than the United States of America (hereinafter referred to as a
"Foreign Subcustodian" in the context of either a subcustodian or a
sub-subcustodian); provided that the Custodian shall have obtained written
confirmation from each Fund of the approval of the Board of Directors or other
governing body of each such Fund (which approval may be withheld in the sole
discretion of such Board of Directors or other governing body or entity) with
respect to (i) the identity of any proposed Foreign Subcustodian (including
branch designation), (ii) the country or countries in which, and the securities
depositories or clearing agencies (hereinafter "Securities Depositories and
Clearing Agencies"), if any, through which, the Custodian or any proposed
Foreign Subcustodian is authorized to hold Securities and other Assets of each
such Fund, and (iii) the form and terms of the subcustodian agreement to be
entered into with such proposed Foreign Subcustodian. Each such duly
approved Foreign Subcustodian and the countries where and the Securities
Depositories and Clearing Agencies through which they may hold Securities and
other Assets of the Fund(s) shall be listed on Appendix A attached hereto, as it
may be amended, from time to time. Each Fund shall be responsible for
informing the Custodian sufficiently in advance of a proposed investment which
is to be held in a country in which no Foreign Subcustodian is authorized to
act, in order that there shall be sufficient time for the Custodian, or any
Domestic Subcustodian, to effect the appropriate arrangements with a proposed
Foreign Subcustodian, including obtaining approval as provided in this Section
5(b). In connection with the appointment of any Foreign Subcustodian,
the Custodian shall, or shall cause the Domestic Subcustodian to, enter into a
subcustodian agreement with the Foreign Subcustodian in form and substance
approved by each such Fund. The Custodian shall not consent to the
amendment of, and shall cause any Domestic Subcustodian not to consent to the
amendment of, any agreement entered into with a Foreign Subcustodian, which
materially affects any Fund's rights under such agreement, except upon prior
written approval of such Fund pursuant to Special Instructions.
10
(c) Interim
Subcustodians.
Notwithstanding the foregoing, in the
event that a Fund shall invest in an Asset to be held in a country in which no
Foreign Subcustodian is authorized to act, the Custodian shall notify such Fund
in writing by facsimile transmission or in such other manner as such Fund and
the Custodian shall agree in writing of the unavailability of an approved
Foreign Subcustodian in such country; and upon the receipt of Special
Instructions from such Fund, the Custodian shall, or shall cause its Domestic
Subcustodian to, appoint or approve an entity (referred to herein as an "Interim
Subcustodian") designated in such Special Instructions to hold such Security or
other Asset.
(d) Special
Subcustodians.
Upon receipt of Special Instructions,
the Custodian shall, on behalf of a Fund, appoint one or more banks, trust
companies or other entities designated in such Special Instructions to act for
the Custodian on behalf of such Fund as a subcustodian for purposes of: (i)
effecting third-party repurchase transactions with banks, brokers, dealers or
other entities through the use of a common custodian or subcustodian; (ii)
providing depository and clearing agency services with respect to certain
variable rate demand note Securities, (iii) providing depository and clearing
agency services with respect to dollar denominated Securities, and (iv)
effecting any other transactions designated by such Fund in such Special
Instructions. Each such designated subcustodian (hereinafter referred
to as a "Special Subcustodian") shall be listed on Appendix A attached hereto,
as it may be amended from time to time. In connection with the
appointment of any Special Subcustodian, the Custodian shall enter into a
subcustodian agreement with the Special Subcustodian in form and substance
approved by the appropriate Fund in Special Instructions. The
Custodian shall not amend any subcustodian agreement entered into with a Special
Subcustodian, or waive any rights under such agreement, except upon prior
approval pursuant to Special Instructions.
(e) Termination of a
Subcustodian.
The Custodian may, at any time in its
discretion upon notification to the appropriate Fund(s), terminate any
Subcustodian of such Fund(s) in accordance with the termination provisions under
the applicable subcustodian agreement, and upon the receipt of Special
Instructions, the Custodian will terminate any Subcustodian in accordance with
the termination provisions under the applicable subcustodian
agreement.
(f) Certification Regarding
Foreign Subcustodians.
Upon request of a Fund, the Custodian
shall deliver to such Fund a certificate stating: (i) the identity of
each Foreign Subcustodian then acting on behalf of the Custodian; (ii) the
countries in which and the Securities Depositories and Clearing Agencies through
which each such Foreign Subcustodian is then holding cash, Securities and other
Assets of such Fund; and (iii) such other information as may be requested by
such Fund, and as the Custodian shall be reasonably able to obtain, to evidence
compliance with rules and regulations under the 1940 Act.
11
6. STANDARD
OF CARE.
(a) General Standard of
Care.
The Custodian shall be liable to a
Fund for all losses, damages and reasonable costs and expenses suffered or
incurred by such Fund resulting from the negligence or willful misfeasance of
the Custodian; provided, however, in no event shall the Custodian be liable for
special, indirect or consequential damages arising under or in connection with
this Agreement.
(b) Actions Prohibited by
Applicable Law, Events Beyond Custodian's Control, Sovereign Risk,
Etc.
In no event shall the Custodian or
any Domestic Subcustodian incur liability hereunder (i) if the Custodian or any
Subcustodian or Securities System, or any subcustodian, Securities System,
Securities Depository or Clearing Agency utilized by the Custodian or any such
Subcustodian, or any nominee of the Custodian or any Subcustodian (individually,
a "Person") is prevented, forbidden or delayed from performing, or omits to
perform, any act or thing which this Agreement provides shall be performed or
omitted to be performed, by reason of: (a) any provision of any present or
future law or regulation or order of the United States of America, or any state
thereof, or of any foreign country, or political subdivision thereof or of any
court of competent jurisdiction (and neither the Custodian nor any other Person
shall be obligated to take any action contrary thereto); or (b) any event beyond
the control of the Custodian or other Person such as armed conflict, riots,
strikes, lockouts, labor disputes, equipment or transmission failures, natural
disasters, or failure of the mails, transportation, communications or power
supply; or (ii) for any loss, damage, cost or expense resulting from "Sovereign
Risk." A "Sovereign Risk" shall mean nationalization, expropriation,
currency devaluation, revaluation or fluctuation, confiscation, seizure,
cancellation, destruction or similar action by any governmental authority, de
facto or de jure; or enactment, promulgation, imposition or enforcement by any
such governmental authority of currency restrictions, exchange controls, taxes,
levies or other charges affecting a Fund's Assets; or acts of armed conflict,
terrorism, insurrection or revolution; or any similar act or event beyond the
Custodian's or such other Person's control.
(c) Liability for Past
Records.
Neither the Custodian nor any
Domestic Subcustodian shall have any liability in respect of any loss, damage or
expense suffered by a Fund, insofar as such loss, damage or expense arises from
the performance of the Custodian or any Domestic Subcustodian in reliance upon
records that were maintained for such Fund by entities other than the Custodian
or any Domestic Subcustodian prior to the Custodian's employment
hereunder.
(d) Advice of
Counsel.
The Custodian and all Domestic
Subcustodians shall be entitled to receive and act upon advice of counsel of its
own choosing, and at its own expense, on all matters. The Custodian
and all Domestic Subcustodians shall be without liability for any actions taken
or omitted in good faith pursuant to the advice of counsel.
(e) Advice of the Fund and
Others.
The Custodian and any Domestic
Subcustodian may rely upon the advice of any Fund and upon statements of such
Fund's accountants and other persons believed by it in good faith to be expert
in matters upon which they are consulted, and neither the Custodian nor any
Domestic Subcustodian shall be liable for any actions taken or omitted, in good
faith, pursuant to such advice or statements.
(f) Instructions Appearing to be
Genuine.
The Custodian and all Domestic
Subcustodians shall be fully protected and indemnified in acting as a custodian
hereunder upon any Resolutions of the Board of Directors or Trustees,
Instructions, Special Instructions, advice, notice, request, consent,
certificate, instrument or paper appearing to it to be genuine and to have been
properly executed and shall, unless otherwise specifically provided herein, be
entitled to receive as conclusive proof of any fact or matter required to be
ascertained from any Fund hereunder a certificate signed by any officer of such
Fund authorized to countersign or confirm Special Instructions. 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.
12
(g) Exceptions from
Liability.
Without limiting the generality of
any other provisions hereof, neither the Custodian nor any Domestic Subcustodian
shall be under any duty or obligation to inquire into, nor be liable
for:
(i) the validity of the
issue of any Securities purchased by or for any Fund, the legality of the
purchase thereof or evidence of ownership required to be received by any such
Fund, or the propriety of the decision to purchase or amount paid
therefor;
(ii) the legality of the
sale of any Securities by or for any Fund, or the propriety of the amount for
which the same were sold; or
(iii) any other
expenditures, encumbrances of Securities, borrowings or similar actions with
respect to any Fund's Assets;
and may,
until notified to the contrary, presume that all Instructions or Special
Instructions received by it are not in conflict with or in any way contrary to
any provisions of any such Fund's Declaration of Trust, Partnership Agreement,
Articles of Incorporation or By-Laws or votes or proceedings of the
shareholders, trustees, partners or directors of any such Fund, or any such
Fund's currently effective Registration Statement on file with the
SEC.
7. LIABILITY
OF THE CUSTODIAN FOR ACTIONS OF OTHERS.
(a) Domestic
Subcustodians.
The Custodian shall be liable for the
acts or omissions of any Domestic Subcustodian to the same extent as if such
actions or omissions were performed by the Custodian itself.
(b) Liability for Acts and
Omissions of Foreign Subcustodians.
The Custodian shall be liable to a
Fund for any loss or damage to such Fund caused by or resulting from the acts or
omissions of any Foreign Subcustodian to the extent that, under the terms set
forth in the subcustodian agreement between the Custodian or a Domestic
Subcustodian and such Foreign Subcustodian, the Foreign Subcustodian has failed
to perform in accordance with the standard of conduct imposed under such
subcustodian agreement and the Custodian or Domestic Subcustodian recovers from
the Foreign Subcustodian under the applicable subcustodian
agreement.
(c) Securities Systems, Interim
Subcustodians, Special Subcustodians, Securities Depositories and Clearing
Agencies.
The Custodian shall not be liable to
any Fund for any loss, damage or expense suffered or incurred by such Fund
resulting from or occasioned by the actions or omissions of a Securities System,
Interim Subcustodian, Special Subcustodian, or Securities Depository and
Clearing Agency, unless such loss, damage or expense is caused by, or results
from, the negligence or willful misfeasance of the Custodian.
(d) Defaults or Insolvency of
Brokers, Banks, Etc.
The Custodian shall not be liable for
any loss, damage or expense suffered or incurred by any Fund resulting from or
occasioned by the actions, omissions, neglects, defaults or insolvency of any
broker, bank, trust company
or any
other person with whom the Custodian may deal (other than any of such entities
acting as a Subcustodian, Securities System or Securities Depository and
Clearing Agency, for whose actions the liability of the Custodian is set out
elsewhere in this Agreement) unless such loss, damage or expense is caused by,
or results from, the negligence or willful misfeasance of the
Custodian.
13
(e) Reimbursement of
Expenses.
Each Fund agrees to reimburse the
Custodian for all out-of-pocket expenses incurred on its behalf by the Custodian
in connection with this Agreement, but excluding salaries and usual overhead
expenses.
8. INDEMNIFICATION.
(a) Indemnification by the
Funds.
Subject to the limitations set forth
in this Agreement, each Fund agrees to indemnify and hold harmless the Custodian
and its nominees from all losses, damages and expenses (including attorneys'
fees) suffered or incurred by the Custodian or its nominee caused by or arising
from actions taken by the Custodian, its employees or agents in the performance
of its duties and obligations under this Agreement, including, but not limited
to, any indemnification obligations undertaken by the Custodian under any
relevant subcustodian agreement; provided, however, that such indemnity shall
not apply to the extent the Custodian is liable under Sections 6 or 7
hereof.
If any Fund requires the Custodian to
take any action with respect to Securities, which action involves the payment of
money or which may, in the opinion of the Custodian, result in the Custodian or
its nominee assigned to such Fund being liable for the payment of money or
incurring liability of some other form, such Fund, as a prerequisite to
requiring the Custodian to take such action, shall provide indemnity to the
Custodian in an amount and form satisfactory to it.
(b) Indemnification by the
Custodian.
Subject to the limitations set forth
in this Agreement and in addition to the obligations provided in Sections 6 and
7, the Custodian agrees to indemnify and hold harmless each Fund from all
losses, damages and expenses suffered or incurred by each such Fund caused by
the negligence or willful misfeasance of the Custodian.
9. ADVANCES.
In the event that, pursuant to
Instructions, the Custodian or any Subcustodian, Securities System, or
Securities Depository or Clearing Agency acting either directly or indirectly
under agreement with the Custodian (each of which for purposes of this Section 9
shall be referred to as "Custodian"), makes any payment or transfer of funds on
behalf of any Fund as to which there would be, at the close of business on the
date of such payment or transfer, insufficient funds held by the Custodian on
behalf of any such Fund, the Custodian may, in its discretion without further
Instructions, provide an advance ("Advance") to any such Fund in an amount
sufficient to allow the completion of the transaction by reason of which such
payment or transfer of funds is to be made. In addition, in the event
the Custodian is directed by Instructions to make any payment or transfer of
funds on behalf of any Fund as to which it is subsequently determined that such
Fund has overdrawn its cash account with the Custodian as of the close of
business on the date of such payment or transfer, said overdraft shall
constitute an Advance. Any Advance shall be payable by the Fund on
behalf of which the Advance was made on demand by Custodian, unless otherwise
agreed by such Fund and the Custodian, and shall accrue interest from the date
of the Advance to the date of payment by such Fund to the Custodian at a rate
agreed upon in writing from time to time by the Custodian and such
Fund. It is understood that any transaction in respect of which the
Custodian shall have made an Advance, including but not limited to a foreign
exchange contract or transaction in respect of which the Custodian is not acting
as a principal, is for the account of and at the risk of the Fund on behalf of
which the Advance was made, and not, by reason of such Advance, deemed to be a
transaction undertaken by the Custodian for its own account and
risk. The Custodian and each of the Funds which are parties to this
Agreement acknowledge that the purpose of Advances is to finance temporarily the
purchase or sale of Securities for prompt delivery in accordance with the
settlement terms of such transactions or to meet emergency expenses not
reasonably foreseeable by a Fund. The Custodian shall promptly notify
the appropriate Fund of any Advance. Such notification shall be sent
by facsimile transmission or in such other manner as such Fund and the Custodian
may agree.
14
10. LIENS.
The Custodian shall have a lien on
the Property in the Custody Account to secure payment of fees and expenses for
the services rendered under this Agreement. If the Custodian advances
cash or securities to the Fund for any purpose or in the event that the
Custodian or its nominee shall incur or be assessed any taxes, charges,
expenses, assessments, claims or liabilities in connection with the performance
of its duties hereunder, except such as may arise from its or its nominee's
negligent action, negligent failure to act or willful misconduct, any Property
at any time held for the Custody Account shall be security therefor and the Fund
hereby grants a security interest therein to the Custodian. The Fund
shall promptly reimburse the Custodian for any such advance of cash or
securities or any such taxes, charges, expenses, assessments, claims or
liabilities upon request for payment, but should the Fund fail to so reimburse
the Custodian, the Custodian shall be entitled to dispose of such Property to
the extent necessary to obtain reimbursement. The Custodian shall be
entitled to debit any account of the Fund with the Custodian including, without
limitation, the Custody Account, in connection with any such advance and any
interest on such advance as the Custodian deems reasonable.
11. COMPENSATION.
Each Fund will pay to the Custodian
such compensation as is agreed to in writing by the Custodian and each such Fund
from time to time. Such compensation, together with all amounts for
which the Custodian is to be reimbursed in accordance with Section 7(e), shall
be billed to each such Fund and paid in cash to the Custodian.
12. POWERS OF
ATTORNEY.
Upon request, each Fund shall deliver
to the Custodian such proxies, powers of attorney or other instruments as may be
reasonable and necessary or desirable in connection with the performance by the
Custodian or any Subcustodian of their respective obligations under this
Agreement or any applicable subcustodian agreement.
13. TERMINATION
AND ASSIGNMENT.
Any Fund or the Custodian may
terminate this Agreement by notice in writing, delivered or mailed, postage
prepaid (certified mail, return receipt requested) to the other not less than 90
days prior to the date upon which such termination shall take
effect. Upon termination of this Agreement, the appropriate Fund
shall pay to the Custodian such fees as may be due the Custodian hereunder as
well as its reimbursable disbursements, costs and expenses paid or
incurred. Upon termination of this Agreement, the Custodian shall
deliver, at the terminating party's expense (provided all such expenses are
reasonable), all Assets held by it hereunder to the appropriate Fund or as
otherwise designated by such Fund by Special Instructions. Upon such
delivery, the Custodian shall have no further obligations or liabilities under
this Agreement except as to the final resolution of matters relating to activity
occurring prior to the effective date of termination.
This Agreement may not be assigned by
the Custodian or any Fund without the respective consent of the other, duly
authorized by a resolution by its Board of Directors or Trustees.
14. ADDITIONAL
FUNDS.
An additional Fund or Funds may
become a party to this Agreement after the date hereof by an instrument in
writing to such effect signed by such Fund or Funds and the
Custodian. If this Agreement is terminated as to one or more of the
Funds (but less than all of the Funds) or if an additional Fund or Funds shall
become a party to this Agreement, there shall be delivered to each party an
Appendix B or an amended Appendix B, signed by each of the additional Funds (if
any) and each of the remaining Funds as well as the Custodian, deleting or
adding such Fund or Funds, as the case may be. The termination of
this Agreement as to less than all of the Funds shall not affect the obligations
of the Custodian and the remaining Funds hereunder as set forth on the signature
page hereto and in Appendix B as revised from time to time.
15. NOTICES.
15
As to each Fund, notices, requests,
instructions and other writings delivered to The Alerian MLP Funds Trust, ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇; ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, postage prepaid, or to such other
address as any particular Fund may have designated to the Custodian in writing,
shall be deemed to have been properly delivered or given to a Fund.
Notices, requests, instructions and
other writings delivered to the Securities Administration department of the
Custodian at its office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇., ▇▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, 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.
16. MISCELLANEOUS.
(a) This Agreement is
executed and delivered in the State of Missouri and shall be governed by the
laws of such state.
(b) All of the terms and
provisions of this Agreement shall be binding upon, and inure to the benefit of,
and be enforceable by the respective successors and assigns of the parties
hereto.
(c) No provisions of this
Agreement may be amended, modified or waived, in any manner except in writing,
properly executed by both parties hereto; provided, however, Appendix A may be
amended from time to time as Domestic Subcustodians, Foreign Subcustodians,
Special Subcustodians, and Securities Depositories and Clearing Agencies are
approved or terminated according to the terms of this Agreement.
(d) The captions in this
Agreement are included for convenience of reference only, and in no way define
or delimit any of the provisions hereof or otherwise affect their construction
or effect.
(e) This Agreement shall
be effective as of the date of execution hereof.
(f) This Agreement may be
executed simultaneously in two or more counterparts, each of which will be
deemed an original, but all of which together will constitute one and the same
instrument.
(g) The following terms
are defined terms within the meaning of this Agreement, and the definitions
thereof are found in the following sections of the Agreement:
|
Term
|
Section
|
|
Account
|
4(b)(3)(ii)
|
|
ADR'S
|
4(j)
|
|
Advance
|
9
|
|
Assets
|
2(b)
|
|
Authorized
Person
|
3
|
|
Banking
Institutions
|
4(1)
|
|
Domestic
Subcustodian
|
5(a)
|
|
Foreign
Subcustodian
|
5(b)
|
|
Instruction
|
2(c)(1)
|
|
Interim
Subcustodian
|
5(c)
|
|
Interest
Bearing Deposits
|
4(1)
|
|
Liens
|
10
|
|
OCC
|
4(g)(1)
|
|
Person
|
6(b)
|
|
Procedural
Agreement
|
4(h)
|
|
SEC
|
4(b)(3)
|
|
Securities
|
2(a)
|
|
Securities
Depositories and Clearing Agencies
|
5(b)(ii)
|
16
|
Securities
Systm
|
4(b)(3)
|
|
Shares
|
4(s)
|
|
Sovereign
Risk
|
6(b)
|
|
Special
Instructions
|
2(c)(2)
|
|
Special
Subcustodian
|
5(d)
|
|
Subcustodians
|
5
|
|
1940
Act
|
4(v)
|
(h) If any part, term or
provision of this Agreement is held to be illegal, in conflict with any law or
otherwise invalid by any court of competent jurisdiction, the remaining portion
or portions shall be considered severable and shall not be affected, and the
rights and obligations of the parties shall be construed and enforced as if this
Agreement did not contain the particular part, term or provision held to be
illegal or invalid.
(i) This Agreement
constitutes the entire understanding and agreement of the parties hereto with
respect to the subject matter hereof, and accordingly supersedes, as of the
effective date of this Agreement, any custodian agreement heretofore in effect
between the Fund and the Custodian.
17
IN WITNESS WHEREOF, the
parties hereto have caused this Custody Agreement to be executed by their
respective duly authorized officers.
|
Attest:
|
By:
|
|
|
Name:
|
||
|
Title:
|
||
|
Date:
|
||
|
UMB
BANK, N.A.
|
||
|
Attest:
|
By:
|
|
|
Name: ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
|
||
|
Title: Senior
Vice President
|
||
|
Date:
|
18
APPENDIX
A
FORM
OF CUSTODY AGREEMENT
DOMESTIC
SUBCUSTODIANS:
Citibank (Foreign
Securities Only)
SECURITIES
SYSTEMS:
Federal Book Entry
Depository Trust
Company
SPECIAL
SUBCUSTODIANS:
SECURITIES
DEPOSITORIES
COUNTRIES FOREIGN
SUBCUSTODIANS CLEARING
AGENCIES
Euroclear
|
UMB
BANK, N.A.
|
||
|
By:
|
By:
|
|
|
Name:
|
Name: ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
|
|
|
Title:
|
Title: Senior
Vice President
|
|
|
Date:
|
Date:
|
|
▇▇
▇▇▇▇▇▇▇▇
▇
FORM
OF CUSTODY AGREEMENT
The following open-end management
investment companies ("Funds") are hereby made parties to the Custody Agreement
dated ,
2010, with UMB Bank, n.a. ("Custodian") and The Alerian MLP Funds Trust, and
agree to be bound by all the terms and conditions contained in said
Agreement:
|
Attest:
|
By:
|
|
|
Name:
|
||
|
Title:
|
||
|
Date:
|
||
|
UMB
BANK, N.A.
|
||
|
Attest:
|
By:
|
|
|
Name: ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
|
||
|
Title: Senior
Vice President
|
||
|
Date:
|
20