CUSTODY AND INVESTMENT ACCOUNTING AGREEMENT
THIS AGREEMENT is made effective the 29th day of September, 1997, by and
between INVESTORS FIDUCIARY TRUST COMPANY, a trust company chartered under the
laws of the state of Missouri, having its trust office located at ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("IFTC"), and CLEARWATER
INVESTMENT TRUST, a Massachusetts business trust, having its principal office
and place of business at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ("Fund").
WITNESSETH:
WHEREAS, Fund desires to appoint IFTC as custodian of the assets of the
Fund's investment portfolio or portfolios (each a "Portfolio", and collectively
the "Portfolios") and as its agent to perform certain investment accounting and
recordkeeping functions; and
WHEREAS, IFTC is willing to accept such appointment on the terms and
conditions hereinafter set forth;
NOW THEREFORE, for and in consideration of the mutual promises contained
herein, the parties hereto, intending to be legally bound, mutually covenant and
agree as follows:
1. APPOINTMENT OF CUSTODIAN AND AGENT. Fund hereby constitutes and appoints
IFTC as:
A. Custodian of the investment securities, interests in loans and other
non-cash investment property, and monies at any time owned by each of
the Portfolios and delivered to IFTC as custodian hereunder
("Assets"); and
B. Agent to perform certain accounting and recordkeeping functions
relating to portfolio transactions required of a duly registered
investment company under Rules 31a-1, a-2 and a-3 of the Investment
Company Act of 1940, as amended (the "1940 Act") and to calculate the
net asset value of the Portfolios.
2. REPRESENTATIONS AND WARRANTIES.
A. Fund hereby represents, warrants and acknowledges to IFTC:
1. That it is a Massachusetts Business trust duly organized and in
good standing under the laws of the Commonwealth of
Massachusetts, and that it is registered under the 1940 Act; and
2. That it has the requisite power and authority under applicable
law, and its declaration of trust to enter into this Agreement;
that it has taken all requisite action necessary to appoint IFTC
as custodian and investment accounting and recordkeeping agent;
that this Agreement has been duly executed and delivered by Fund;
and that this Agreement constitutes a legal, valid and binding
obligation of Fund, enforceable in accordance with its terms.
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B. IFTC hereby represents, warrants and acknowledges to Fund:
1. That it is a trust company duly organized and existing and in
good standing under the laws of the State of Missouri; and
2. That it has the requisite power and authority under applicable
law, its charter and its bylaws to enter into and perform this
Agreement; that this Agreement has been duly executed and
delivered by IFTC; and that this Agreement constitutes a legal,
valid and binding obligation of IFTC, enforceable in accordance
with its terms.
3. DUTIES AND RESPONSIBILITIES OF THE PARTIES.
A. Delivery of Assets. Except as permitted by the 1940 Act, Fund will
deliver or cause to be delivered to IFTC on the effective date hereof,
or as soon thereafter as practicable, and from time to time
thereafter, all Assets acquired by, owned by or from time to time
coming into the possession of each of the Portfolios during the term
hereof. IFTC has no responsibility or liability whatsoever for or on
account of Assets not so delivered.
B. Delivery of Accounts and Records. Fund will turn over or cause to be
turned over to IFTC all accounts and records previously maintained by
the Fund's prior custodian that IFTC needs in order to fully and
properly establish each Portfolio's accounts and records on the
System, as hereinafter defined, and to fully and accurately prepare
reports and information pursuant to Section 3.S hereof. IFTC may rely
conclusively on the completeness and correctness of such accounts and
records.
C. Delivery of Assets to Third Parties. IFTC will accept delivery of and
keep safely the Assets of each Portfolio segregated at all times from
those of any other person, firm or corporation and held by IFTC with
commercially reasonable precautions for safekeeping. IFTC will not
deliver, assign, pledge or hypothecate any such Assets to any person
except as permitted by the provisions of this Section 3.C or any
agreement executed according to the terms of Section 3.Q hereof. Upon
delivery of any such Assets to a subcustodian appointed pursuant to
Section 3.Q (hereinafter referred to as "Subcustodian"), IFTC will
create and maintain records identifying such Assets as belonging to
the applicable Portfolio. IFTC is responsible for the safekeeping of
the Assets only until they have been transmitted to and received by
other persons as permitted under the terms of this Agreement, except
for Assets transmitted to Subcustodians, for which IFTC remains
responsible to the extent provided in Section 3.Q. IFTC may
participate directly or indirectly through a Subcustodian in the
Depository Trust Company (DTC), Treasury/Federal Reserve Book Entry
System (Fed System), Participant Trust Company (PTC) or other
depository approved by Fund (as such entities are defined at 17 CFR
Section 270.17f-4(b)) (each a "Depository" and collectively the
"Depositories"); provided, however, that such securities are
maintained in an account of IFTC or such Subcustodian in Depositaries
which shall not include any assets of IFTC or such Subcustodian or any
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other person other than assets held by IFTC or such Subcustodian as a
fiduciary, custodian, or otherwise for its customers. The records of
IFTC with respect to securities of the Fund which are maintained in a
Depository shall identify by book-entry those securities belonging to
the Fund, and IFTC shall be fully and completely responsible for
maintaining a recordkeeping system capable of accurately and currently
stating the Fund's holdings maintained in each such Depository. IFTC
shall be liable to the Fund for any loss or damage to the Fund
resulting from use of the Depositaries by reason of any negligence,
misfeasance or misconduct of IFTC or any of its agents or
Subcustodians or any of its or their employees or from any failure of
IFTC or any such agent or Subcustodian to use reasonable efforts to
enforce such rights as it may have against the Depositaries or any
other person; at the election of the Fund, the Fund shall be entitled
to be subrogated to the rights of IFTC with respect to any claim
against the Depositaries or any other person which IFTC may have as a
consequence of any such loss or damage if and to the extent that the
Fund has not been made whole for any such loss or damage.
D. Registration. IFTC will at all times hold Registered Assets
("Registered Assets") in the name of IFTC as custodian, the applicable
Portfolio, or a nominee of either of them, unless specifically
directed by Instructions, as hereinafter defined, to hold Registered
Assets in so-called "street name;" provided that, in all cases, IFTC
will hold all Assets in an account of IFTC as custodian containing
only Assets of the applicable Portfolio, or only assets held by IFTC
as a fiduciary or custodian for customers; and provided further,
IFTC's records will at all times indicate the Portfolio or other
customer for which Assets are held and the respective interests
therein. If, however, Fund directs IFTC to maintain Assets in "street
name", notwithstanding anything contained herein to the contrary, IFTC
will be obligated only to utilize its best efforts to timely collect
income due a Portfolio on such Assets and to notify the Portfolio of
relevant information, such as maturities and pendency of calls, and
corporate actions including, without limitation, calls for redemption,
tender or exchange offers, declaration, record and payment dates and
amounts of any dividends or income, reorganization, recapitalization,
merger, consolidation, split-up of shares, change of par value, or
conversion ("Corporate Actions"). All Assets and the ownership thereof
by each Portfolio will at all times be identifiable on the records of
IFTC. Fund agrees to hold IFTC and its nominee harmless for any
liability as a shareholder of record of securities held in custody.
E. Exchange. Upon receipt of Instructions, IFTC will exchange, or cause
to be exchanged, Assets held for the account of a Portfolio for other
Assets issued or paid in connection with any Corporate Action or
otherwise, and will deposit any such Assets in accordance with the
terms of any such Corporate Action. Without Instructions, IFTC is
authorized to exchange Assets in temporary form for Assets in
definitive form, to effect an exchange of shares when the par value of
stock is changed, and, upon receiving payment therefor, to surrender
bonds or other Assets at maturity or when advised of earlier call for
redemption, except that IFTC will receive Instruction prior to
surrendering any convertible security.
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F. Purchases of Investments -- Other Than Options and Futures. On each
business day on which a Portfolio makes a purchase of Assets other
than options and futures, Fund will deliver to IFTC Instructions
specifying with respect to each such purchase:
1. If applicable, the name of the Portfolio making such purchase;
2. The name of the issuer and description of the Asset;
3. The number of shares and the principal amount purchased, and
accrued interest, if any;
4. The trade date;
5. The settlement date;
6. The purchase price per unit and the brokerage commission, taxes
and other expenses payable in connection with the purchase;
7. The total amount payable upon such purchase;
8. The name of the person from whom or the broker or dealer through
whom the purchase was made; and
9. Whether the Asset is to be received in certificated form or via a
specified Depository.
In accordance with such Instructions, IFTC will pay for out of
monies held for the purchasing Portfolio, but only insofar as
such monies are available for such purpose, and receive the
Assets so purchased by or for the account of such Portfolio,
except that IFTC, or a Subcustodian, may in its sole discretion
advance funds to such Portfolio which may result in an overdraft
because the monies held on behalf of such Portfolio are
insufficient to pay the total amount payable upon such purchase.
Except as otherwise instructed by Fund, IFTC will make such
payment only upon receipt of Assets: (a) by IFTC; (b) by a
clearing corporation of a national exchange of which IFTC is a
member; or (c) by a Depository. Notwithstanding the foregoing,
(i) IFTC may release funds to a Depository prior to the receipt
of advice from the Depository that the Assets underlying a
repurchase agreement have been transferred by book-entry into the
account maintained with such Depository by IFTC on behalf of its
customers; provided that IFTC's instructions to the Depository
require that the Depository make payment of such funds only upon
transfer by book-entry of the Assets underlying the repurchase
agreement in such account; (ii) IFTC may make payment for time
deposits, call account deposits, currency deposits and other
deposits, foreign exchange transactions, futures contracts or
options, before receipt of an advice or confirmation evidencing
said deposit or entry into such transaction; and (iii) IFTC may
make, or cause a Subcustodian to make, payment for the purchase
of Assets the settlement of which occurs outside of the United
States of America in accordance with generally accepted local
custom and market practice.
G. Sales and Deliveries of Investments -- Other Than Options and Futures.
On each business day on which a Portfolio makes a sale of Assets other
than options and futures, Fund will deliver to IFTC Instructions
specifying with respect to each such sale:
1. If applicable, the name of the Portfolio making such sale;
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2. The name of the issuer and description of the Asset;
3. The number of shares and principal amount sold, and accrued
interest, if any;
4. The date on which the Assets sold were purchased or other
information identifying the Assets sold and to be delivered;
5. The trade date;
6. The settlement date;
7. The sale price per unit and the brokerage commission, taxes or
other expenses payable in connection with such sale;
8. The total amount to be received by the Portfolio upon such sale;
and
9. The name and address of the broker or dealer through whom or
person to whom the sale was made.
IFTC will deliver or cause to be delivered the Assets thus designated
as sold for the account of the selling Portfolio as specified in the
Instructions. Except as otherwise instructed by Fund, IFTC will make
such delivery upon receipt of: (a) payment therefor in such form as is
satisfactory to IFTC; (b) credit to the account of IFTC with a
clearing corporation of a national securities exchange of which IFTC
is a member; or (c) credit to the account maintained by IFTC on behalf
of its customers with a Depository. Notwithstanding the foregoing: (i)
IFTC will deliver Assets held in physical form in accordance with
"street delivery custom" to a broker or its clearing agent; or (ii)
IFTC may make, or cause a Subcustodian to make, delivery of Assets the
settlement of which occurs outside of the United States of America
upon payment therefor in accordance with generally accepted local
custom and market practice.
H. Purchases or Sales of Options and Futures. On each business day on
which a Portfolio makes a purchase or sale of the options and/or
futures listed below, Fund will deliver to IFTC Instructions
specifying with respect to each such purchase or sale:
1. If applicable, the name of the Portfolio making such purchase or
sale;
2. In the case of security options:
a. The underlying security;
b. The price at which purchased or sold;
c. The expiration date;
d. The number of contracts;
e. The exercise price;
f. Whether the transaction is an opening, exercising, expiring
or closing transaction;
g. Whether the transaction involves a put or call;
h. Whether the option is written or purchased;
i. Market on which option traded; and
j. Name and address of the broker or dealer through whom the
sale or purchase was made.
3. In the case of options on indices:
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a. The index;
b. The price at which purchased or sold;
c. The exercise price;
d. The premium;
e. The multiple;
f. The expiration date;
g. Whether the transaction is an opening, exercising, expiring
or closing transaction;
h. Whether the transaction involves a put or call;
i. Whether the option is written or purchased; and
j. The name and address of the broker or dealer through whom
the sale or purchase was made, or other applicable
settlement instructions.
4. In the case of security index futures contracts:
a. The last trading date specified in the contract and, when
available, the closing level, thereof;
b. The index level on the date the contract is entered into;
c. The multiple;
d. Any margin requirements;
e. The need for a segregated margin account (in addition to
Instructions, and if not already in the possession of IFTC,
Fund will deliver a substantially complete and executed
custodial safekeeping account and procedural agreement,
incorporated herein by this reference); and
f. The name and address of the futures commission merchant
through whom the sale or purchase was made, or other
applicable settlement instructions.
5. In the case of options on index future contracts:
a. The underlying index future contract;
b. The premium;
c. The expiration date;
d. The number of options;
e. The exercise price;
f. Whether the transaction involves an opening, exercising,
expiring or closing transaction;
g. Whether the transaction involves a put or call;
h. Whether the option is written or purchased; and
i. The market on which the option is traded.
I. Liability for Payment in Advance of Receipt of Securities Purchased.
In any and every case where payment for purchase of securities for the
account of the Fund is made by IFTC in advance of receipt of the
securities purchased in the absence of specific written Instructions
to so pay in advance, IFTC shall be absolutely liable to the Fund for
such securities to the same extent as if the securities had been
received by IFTC; except that in the case of a repurchase agreement
entered into by the Fund with a bank which is a member of the Federal
Reserve System, IFTC may transfer
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funds to the account of such bank prior to the receipt of (i) the
securities in certificate form subject to such repurchase agreement or
(i) written evidence that the securities subject to such repurchase
agreement have been transferred by book-entry into a segregated
non-proprietary account of IFTC maintained with the Federal Reserve
Bank of Kansas City or (iii) the safekeeping receipt, provided that
such securities have in fact been so transferred by book-entry and the
written repurchase agreement is received by IFTC in due course; and
except that if the securities are to be purchased outside the United
States, payment may be made in accordance with generally accepted
local custom and market practice.
J. Segregated Account. IFTC shall upon receipt of proper Instructions
establish and maintain a segregated account or accounts for and on
behalf of the Fund, into which account or accounts may be transferred
cash and/or securities, including securities maintained in an account
by IFTC pursuant to Section 3.C hereof, (i) in accordance with the
provisions of any agreement among the Fund, IFTC and any registered
broker-dealer (or any futures commission merchant), relating to
compliance with the rules of the Options Clearing Corporation and of
any registered national securities exchange (or of the Commodity
Futures Trading Commission or of any contract market or commodities
exchange), or of any similar organization of organizations, regarding
escrow or deposit or other arrangements in connection with
transactions by the Fund, (ii) for the purposes of segregating cash or
liquid securities in connection with options purchased, sold or
written by the Fund or futures contracts or options thereon purchased
or sold by the Fund, (iii) for the purposes of compliance by the Fund
with the procedures required by Investment Company act Release No.
10666, or any subsequent release or releases of the Securities and
Exchange Commission relating to the maintenance of segregated accounts
by registered investment companies; and (iv) for other proper purposes
as instructed by the Designated Representative.
K. Routine Matters. IFTC will, in general, attend to all routine and
mechanical matters in connection with the sale, exchange,
substitution, purchase, transfer, or other dealings with the Assets
except as may be otherwise provided herein or upon Instruction from
Fund.
L. Deposit Accounts. IFTC will open and maintain one or more special
purpose deposit accounts for each Portfolio in the name of IFTC in
such banks or trust companies (including, without limitation,
affiliates of IFTC) as may be designated by it or Fund in writing
("Accounts"), subject only to draft or order by IFTC upon receipt of
Instructions. IFTC will deposit all monies received by IFTC from or
for the account of a Portfolio in an Account maintained for such
Portfolio. Subject to Section 5.K hereof, IFTC agrees:
1. To make Fed Funds available to the applicable Portfolio at 9:00
a.m., Kansas City time, on the second business day after deposit
of any check into an Account, in the amount of the check;
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2. To make funds available immediately upon a deposit made by
Federal Reserve wire; and
3. To make funds available on the next business day after
deposit of ACH wires.
M. Income and Other Payments. IFTC will:
1. Collect, claim and receive and deposit for the account of the
applicable Portfolio all income (including income from the
Accounts) and other payments which become due and payable on or
after the effective date hereof with respect to the Assets, and
credit the account of such Portfolio in accordance with the
schedule attached hereto as Exhibit A. If, for any reason, a
Portfolio is credited with income that is not subsequently
collected, IFTC may reverse that credited amount. If monies are
collected after such reversal, IFTC will credit the Portfolio in
that amount;
2. Execute ownership and other certificates and affidavits for all
federal, state and local tax purposes in connection with the
collection of bond and note coupons; and
3. Take such other action as may be necessary or proper in
connection with (a) the collection, receipt and deposit of such
income and other payments, including but not limited to the
presentation for payment of all coupons and other income items
requiring presentation; and all other Assets which may mature or
be called, redeemed, retired or otherwise become payable and
regarding which IFTC has actual knowledge, or should reasonably
be expected to have knowledge; and (b) the endorsement for
collection, in the name of Fund or a Portfolio, of all checks,
drafts or other negotiable instruments.
IFTC, however, will not be required to institute suit or take
other extraordinary action to enforce collection except upon
receipt of Instructions and upon being indemnified to its
satisfaction against the costs and expenses of such suit or other
actions. IFTC will receive, claim and collect all stock
dividends, rights and other similar items and will deal with the
same pursuant to Instructions.
N. Proxies and Notices. IFTC will promptly deliver or mail or have
delivered or mailed to Fund all proxies properly signed, all notices
of meetings, all proxy statements and other notices, requests or
announcements affecting or relating to Assets and will, upon receipt
of Instructions, execute and deliver or mail (or cause its nominee to
execute and deliver or mail) such proxies or other authorizations as
may be required. Except as provided herein or pursuant to Instructions
hereafter received by IFTC, neither it nor its nominee will exercise
any power inherent in any such Assets, including any power to vote the
same, or execute any proxy, power of attorney, or other similar
instrument voting any of such Assets, or give any consent, approval or
waiver with respect thereto, or take any other similar action.
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O. Disbursements. IFTC will pay or cause to be paid, insofar as funds are
available for the purpose, bills, statements and other obligations of
each Portfolio (including but not limited to obligations in connection
with the conversion, exchange or surrender of Assets, interest
charges, dividend disbursements, taxes, management fees, custodian
fees, legal fees, auditors' fees, transfer agents' fees, brokerage
commissions, compensation to personnel, and other operating expenses
of such Portfolio) pursuant to Instructions setting forth the name of
the person or account to whom payment is to be made, and the amount
and purpose of the payment.
P. Daily Statement of Accounts. IFTC will, within a reasonable time,
render to Fund a detailed statement of the amounts received or paid
and of Assets received or delivered for the account of each Portfolio
during each business day. IFTC will maintain such books and records as
are necessary to enable it to render, from time to time upon request
by Fund, a detailed statement of the Assets. IFTC will permit, and
upon Instruction will cause any Subcustodian to permit, such persons
as are authorized by Fund, including Fund's independent public
accountants, reasonable access to such records or will provide
reasonable confirmation of the contents of such records, and if
demanded, IFTC will permit, and will cause any Subcustodian to permit,
federal and state regulatory agencies to examine the Assets, books and
records of the Portfolio.
Q. Appointment of Subcustodians. Notwithstanding any other provisions
hereof:
1. All or any of the Assets will be held in IFTC's own custody or,
in IFTC's sole discretion, in the custody of one or more other
banks or trust companies (including, without limitation,
affiliates of IFTC) acting as Subcustodians as may be selected by
IFTC. Any such Subcustodian selected by IFTC must have the
qualifications required for a custodian under the 1940 Act. IFTC
will be responsible to the applicable Portfolio for any loss,
damage or expense suffered or incurred by such Portfolio
resulting from the actions or omissions of any Subcustodians
selected and appointed by IFTC (except Subcustodians appointed at
the request of Fund and as provided in Subsections 2 or 3 below)
to the same extent IFTC would be responsible to Fund hereunder if
it committed the act or omission itself.
2. Upon request of Fund, IFTC will contract with other Subcustodians
reasonably acceptable to IFTC for purposes of (a) effecting
third-party repurchase transactions with banks, brokers, dealers,
or other entities through the use of a common custodian or
subcustodian, or (b) providing depository and clearing agency
services with respect to certain variable rate demand note
securities, or (c) for other reasonable purposes specified by
Fund; provided, however, that IFTC will be responsible to Fund
for any loss, damage or expense suffered or incurred by Fund
resulting from the actions or omissions of any such Subcustodian
only to the same extent such Subcustodian is responsible to IFTC.
Fund may review IFTC's contracts with such Subcustodians.
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3. Each Portfolio's foreign securities (as defined in Rule
17f-5(c)(1) under the ▇▇▇▇ ▇▇▇) and cash or cash equivalents, in
amounts deemed by Fund to be reasonably necessary to effect such
Portfolio's foreign securities transactions, may be held in the
custody of one or more banks or trust companies acting as
Subcustodians ("Global Subcustodian"), and thereafter, pursuant
to a written contract or contracts as approved by Fund, may be
transferred to accounts maintained by any such Global
Subcustodian with eligible foreign custodians, as defined in Rule
17f-5(c)(2)("Eligible Foreign Custodian"). IFTC will be
responsible to Fund for any loss, damage or expense suffered or
incurred by Fund resulting from the actions or omissions of any
Eligible Foreign Custodian only to the same extent such
subcustodian is liable to the Global Subcustodian. The
appointment of a Global Subcustodian will not relieve IFTC of any
of its responsibilities or liabilities hereunder and, as between
the Fund and IFTC, IFTC shall be fully responsible for the acts
and omissions of the Global Subcustodian
R. Accounts and Records. IFTC will prepare and maintain, with the
direction and as interpreted by Fund,Fund's or Portfolio's accountants
and/or other advisors, in complete, accurate and current form all
accounts and records: (1) required to be maintained by Fund with
respect to portfolio transactions under Rules ▇▇▇-▇, ▇-▇, ▇-▇ of the
1940 Act; (2) required to be maintained as a basis for calculation of
each Portfolio's net asset value; and (3) as otherwise agreed upon by
the parties. Fund will advise IFTC in writing of all applicable record
retention requirements, other than those set forth in the 1940 Act.
IFTC will preserve such accounts and records in the manner and for the
periods prescribed in the 1940 Act or for such longer period as is
agreed upon by the parties. Fund will furnish, in writing or its
electronic or digital equivalent, accurate and timely information
needed by IFTC to complete such accounts and records, including
Corporate Actions, when such information is not readily available from
generally accepted securities industry services or publications.
S. Accounts and Records Property of Fund. IFTC acknowledges that all of
the accounts and records maintained by IFTC pursuant hereto are the
property of Fund, and will be made available to Fund for inspection or
reproduction within a reasonable period of time, upon request. IFTC
will surrender such accounts, books and records to Fund if requested
by the Fund to do so. IFTC will make all accounts and records
available to the Fund's independent auditors, and, upon approval of
Fund, or upon demand of any regulatory body, IFTC will make all
accounts and records available to such regulatory body; provided,
however, that Fund will reimburse IFTC for all expenses and employee
time invested in any such review outside of routine and normal audits
and examinations. Upon receipt from Fund of the necessary information
or instructions, IFTC will supply information from the books and
records it maintains for Fund that Fund needs for tax returns,
questionnaires, periodic reports to shareholders and such other
reports and information requests as Fund and IFTC agree upon from time
to time.
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T. Adoption of Procedures. IFTC and Fund hereby adopt the Funds Transfer
Operating Guidelines attached hereto as Exhibit B. IFTC and Fund may
from time to time adopt such additional procedures as they agree upon,
and IFTC may conclusively assume that no procedure approved or
directed by Fund, Fund's or Portfolio's accountants or other advisors
conflicts with or violates any requirements of the prospectus,
declaration of trust, any applicable law, rule or regulation, or any
order, decree or agreement by which Fund may be bound. Fund will be
responsible to notify IFTC of any changes in statutes, regulations,
rules, requirements or policies which relate to any of the Portfolios,
and of any changes therein, which may materially impact IFTC's
performance of its responsibilities described herein, or its related
operational policies and procedures as they relate to such Portfolios
in a manner different from or in addition to investment companies
registered under the 1940 Act in general.
U. Calculation of Net Asset Value. Fund will give Instructions to IFTC
specifying the outside pricing sources to be utilized as sources of
Asset prices ("Pricing Sources"). In the event that Fund specifies
Reuters America, Inc., it will enter into the Agreement attached
hereto as Exhibit C. IFTC will calculate each Portfolio's net asset
value, in accordance with the Portfolio's prospectus. IFTC will price
the Assets, including foreign currency holdings, of each Portfolio for
which market quotations are available from the Pricing Sources; all
other Assets will be priced in accordance with Fund's Instructions.
V. Advances. Subject to Section 3.I hereof, Fund will pay on demand any
advance of cash or securities made by IFTC or any Subcustodian, in its
sole discretion, for any purpose (including but not limited to
securities settlements, purchase or sale of foreign exchange or
foreign exchange contracts and assumed settlement) for the benefit of
any Portfolio. Any such cash advance will be subject to an overdraft
charge at the rate set forth in the then-current fee schedule from the
date advanced until the date repaid. As security for each such
advance, Fund hereby grants IFTC and such Subcustodian a lien on and
security interest in all Assets at any time held for the account of
the applicable Portfolio, including without limitation all Assets
acquired with the amount advanced. Should Fund fail to promptly repay
the advance, IFTC and such Subcustodian may obtain reimbursement of
the amount advanced and any related overdraft charges by (a) utilizing
available cash and, (b) to the extent cash is not available, acting
upon Instruction to dispose of such of such Portfolio's Assets as is
necessary, or (c) if such Instruction is not received within 5
business days, by disposing of such Portfolio's Assets pursuant to
applicable law to the extent necessary.
W. Exercise of Rights; Tender Offers. In the case of tender offers,
similar offers to purchase or exercise rights affecting or relating to
securities held by IFTC under this Agreement, IFTC shall have
responsibility for promptly notifying the Fund of all such offers,
after IFTC obtains knowledge of the offers. For all such offers for
which IFTC is responsible as provided in this Section 3.W, Fund shall
have responsibility for providing IFTC with Instructions in timely
fashion. Upon receipt of Instructions,
11
IFTC will: (1) 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 Assets, if any, are to be delivered to IFTC; and (2) deposit
securities upon invitations for tenders thereof, provided that the
consideration for such securities is to be paid or delivered to IFTC
or the tendered securities are to be returned to IFTC.
W. Fund Shares.
1. Fund will deliver to IFTC Instructions with respect to the
declaration and payment of any dividend or other distribution on
the shares of capital stock of a Portfolio ("Fund Shares") by a
Portfolio. On the date specified in such Instruction, IFTC will
pay out of the monies held for the account of the Portfolio,
insofar as it is available for such purposes, and credit to the
account of the Dividend Disbursing Agent for the Portfolio, the
amount specified in such Instructions.
2. Whenever Fund Shares are repurchased or redeemed by a Portfolio,
Portfolio or its agent will give IFTC Instructions regarding the
aggregate dollar amount to be paid for such shares. Upon receipt
of such Instruction, IFTC will charge such aggregate dollar
amount to the account of the Portfolio and either deposit the
same in the account maintained for the purpose of paying for the
repurchase or redemption of Fund Shares or deliver the same in
accordance with such Instruction. IFTC has no duty or
responsibility to determine that Fund Shares have been removed
from the proper shareholder accounts or that the proper number of
Fund Shares have been canceled and removed from the shareholder
records.
3. Whenever Fund Shares are purchased from Fund, Fund or its agent
will deposit or cause to be deposited with IFTC the amount
received for such shares. IFTC has no duty or responsibility to
determine that Fund Shares purchased from Fund have been added to
the proper shareholder account or that the proper number of such
shares have been added to the shareholder records.
4 INSTRUCTIONS.
A. The term "Instructions", as used herein, means written (including
telecopied, telexed, or electronically transmitted) or oral
instructions which IFTC reasonably believes were given by a Designated
Representative of Fund. The term "Designated Representative" shall
mean any person authorized to give Instructions to the Custodian;
provided, however, that such person has been authorized in writing to
give such instructions by any of the officers or agents of the Trust
authorized by the Board of Trustees to make such authorizations. Fund
will deliver to IFTC, prior to delivery of any Assets to IFTC and
thereafter from time to time as changes therein are necessary, written
Instructions naming one or more Designated Representatives to give
Instructions in the name and on behalf of Fund, which Instructions may
be
12
received and accepted by IFTC as conclusive evidence of the authority
of any Designated Representative to act for Fund and may be considered
to be in full force and effect until receipt by IFTC of notice to the
contrary. Unless such written Instructions delegating authority to a
Designated Representative to give Instructions specifically limit such
authority to specific matters or require that the approval of anyone
else will first have been obtained, IFTC will be under no obligation
to inquire into the right of such Designated Representative, acting
alone, to give any Instructions whatsoever. If Fund fails to provide
IFTC any such Instructions naming Designated Representatives, any
Instructions received by IFTC from a person reasonably believed to be
an appropriate representative of Fund will constitute valid and proper
Instructions hereunder. "Designated Representatives" may include
Fund's or a Portfolio's employees and agents, including investment
managers and their employees.
B. No later than the next business day immediately following each oral
Instruction, Fund will send IFTC written confirmation of such oral
Instruction. At IFTC's sole discretion, IFTC may record on tape, or
otherwise, any oral Instruction whether given in person or via
telephone, each such recording identifying the date and the time of
the beginning and ending of such oral Instruction.
C. Fund will provide, upon IFTC's request, a certificate signed by an
officer or designated representative of Fund, as conclusive proof of
any fact or matter required to be ascertained from Fund hereunder.
Fund will also provide IFTC Instructions with respect to any matter
concerning this Agreement requested by IFTC. If IFTC reasonably
believes that it could not prudently act according to the
Instructions, or the instruction or advice of Fund's or a Portfolio's
accountants or counsel, it may in its discretion, with notice to Fund,
not act according to such Instructions.
5 LIMITATION OF LIABILITY OF IFTC. IFTC is not responsible or liable for, and
Fund will indemnify and hold IFTC harmless from and against, any and all
costs, expenses, losses, damages (other than consequential, special, or
punitive damages), charges, counsel fees, payments and liabilities which
may be asserted against or incurred by IFTC or for which IFTC may be held
to be liable, arising out of or attributable to:
A. IFTC's action or omission to act pursuant hereto; provided that IFTC
has acted in good faith and with due diligence and reasonable care
consistent with industry standards; and provided further, that IFTC is
not liable for consequential, special, or punitive damages in any
event. Nothing contained in this Agreement shall exempt IFTC from
liability due to its negligence or willful misconduct and IFTC will
indemnify the Fund and each Portfolio for any damages (other than
consequential, special and punitive damages) incurred by the Fund or
the Portfolios resulting therefrom.
B. IFTC's payment of money as requested by Fund, or the taking of any
action which might make it or its nominee liable for payment of monies
or in any other way;
13
provided, however, that nothing herein obligates IFTC to take any such
action or expend its own moneys except in its sole discretion.
C. IFTC's action or omission to act hereunder upon any Instructions,
advice, notice, request, consent, certificate or other instrument or
paper appearing to it to be genuine and to have been properly
executed, including any Instructions, communications, data or other
information received by IFTC by means of the Systems, as hereinafter
defined, or any electronic system of communication.
D. IFTC's action or omission to act in good faith reliance on the advice
or opinion of counsel for Fund or of its own counsel with respect to
questions or matters of law, which advice or opinion may be obtained
by IFTC at the expense of Fund, or on the Instructions, advice or
statements of any officer or employee of Fund, or Fund's accountants
or other authorized individuals, and other persons believed by it in
good faith to be expert in matters upon which they are consulted.
E. The purchase or sale of any securities or foreign currency positions.
Without limiting the generality of the foregoing, IFTC is under no
duty or obligation to inquire into:
1. The validity of the issue of any securities purchased by or for
any Portfolio, or the legality of the purchase thereof or of
foreign currency positions, or evidence of ownership required by
Fund to be received by IFTC, or the propriety of the decision to
purchase or the amount paid therefor;
2. The legality of the sale of any securities or foreign currency
positions by or for any Portfolio, or the propriety of the amount
for which the same are sold; or
3. The legality of the issue or sale of any Fund Shares, or the
sufficiency of the amount to be received therefor, the legality
of the repurchase or redemption of any Fund Shares, or the
propriety of the amount to be paid therefor, or the legality of
the declaration of any dividend by Fund, or the legality of the
issue of any Fund Shares in payment of any stock dividend.
F. Any error, omission, inaccuracy or other deficiency in any Portfolio's
accounts and records or other information provided by or on behalf of
a Portfolio to IFTC, including the accuracy of the prices quoted by
the Pricing Sources or for the information supplied by Fund to price
the Assets, or the failure of Fund to provide, or provide in a timely
manner, any accounts, records, or information needed by IFTC to
perform hereunder.
G. Fund's refusal or failure to comply with the terms hereof (including
without limitation Fund's failure to pay or reimburse IFTC under
Section 5 hereof), Fund's negligence or willful misconduct, or the
failure of any representation or warranty of Fund hereunder to be and
remain true and correct in all respects at all times.
14
H. The authorized or unauthorized use of the Systems or any secure
electronic system of communication used to transmit data or other
information hereunder (other than the telephone or video conferences)
(i) by Fund or (ii) by any person who acquires access through the
terminal device, passwords, access instructions or other means of
access utilized by or assigned to Fund, except to the extent
attributable to any negligence or willful misconduct by IFTC or where
Fund's passwords, access instructions or other means of access are
acquired through IFTC's computer hardware.
I. Any money represented by any check, draft, wire transfer,
clearinghouse funds, uncollected funds, or instrument for the payment
of money to be received by IFTC on behalf of a Portfolio until
actually received; provided, however, that IFTC will advise Fund
promptly if it fails to receive any such money in the ordinary course
of business and will cooperate with Fund toward the end that such
money is received.
J. The failure or delay in performance of its obligations hereunder, or
those of any entity for which it is responsible hereunder, arising out
of or caused, directly or indirectly, by circumstances beyond its or
such entity's reasonable control, including, without limitation: any
interruption, loss or malfunction of any non-IFTC owned utility,
transportation, computer (hardware or software) or communication
service; a delay in mails; governmental or exchange action, statute,
ordinance, rulings, regulations or direction; war, strike, riot,
emergency, civil disturbance, terrorism, explosions, tornados, acts of
God or public enemy, revolutions, or insurrection; provided however,
that IFTC shall at all times maintain commercially reasonable back-up
procedures and contingency plans.
6. COMPENSATION. In consideration for its services hereunder, Fund will pay or
direct its management company to pay to IFTC the compensation set forth in
a separate fee schedule, incorporated herein by this reference, to be
agreed to by Fund and IFTC from time to time. IFTC shall also be entitled
to receive, and Fund agrees to pay or direct its management company to pay
to IFTC, on demand, reimbursement for (i) IFTC's cash disbursements and
reasonable out-of-pocket costs and expenses, including reasonable
attorney's fees, incurred by IFTC in connection with the performance of
services hereunder, and (ii) the amount of any loss, damage, liability,
advance, overdraft or expense for which it is entitled to reimbursement
from Fund, including but not limited to fees and expenses due to IFTC for
other services provided to Fund by IFTC. IFTC will be entitled to
reimbursement by Fund for the losses, damages, liabilities, advances,
overdrafts and expenses of Subcustodians only to the extent that (a) IFTC
would have been entitled to reimbursement hereunder if it had incurred the
same itself directly, and (b) IFTC is obligated to reimburse the
Subcustodian therefor. In connection with any fees or other amounts due to
IFTC as described above, IFTC shall submit its request for payment in
writing to the management company designated by Fund. If within 30 days
after such request is submitted, IFTC shall not have received such fees or
other amounts as are due to it
15
hereunder from the management company, then IFTC shall submit its request
for payment in writing directly to the Fund. If within 30 days after such
request is submitted, IFTC has not received such fees or other amounts as
are due to it hereunder, then IFTC may charge such compensation against
monies held by it for the account of the Portfolios.
7. TERM AND TERMINATION. The initial term of this Agreement is for a period of
one (1) year and will remain in effect thereafter indefinitely. Fund or
IFTC may terminate the same by notice in writing, delivered or mailed,
postage prepaid, to the other party and received not less than sixty (60)
days prior to the date upon which such termination will take effect. The
Fund may at any time by action of its Board of Trustees immediately
terminate this Agreement in the event of the appointment of a conservator
or receiver for IFTC by the Federal Deposit Insurance Corporation or by the
Commissioner of Finance of the State of Missouri or upon the happening of a
like event at the direction of an appropriate regulatory agency or court of
competent jurisdiction. Upon termination hereof:
A. Fund will pay IFTC its fees and compensation due hereunder and its
reimbursable disbursements, costs and expenses paid or incurred to
such date; and
B. Fund will designate a successor investment accounting and
recordkeeping agent (which may be Fund) by Instruction to IFTC; and
C. Fund will designate a successor custodian by Instruction to IFTC. In
the event no such Instruction has been delivered to IFTC on or before
the date when such termination becomes effective, then IFTC may, at
its option, (i) choose as successor custodian a bank or trust company
meeting the qualifications for custodian set forth in the 1940 Act and
having not less than Two Million Dollars ($2,000,000) aggregate
capital, surplus and undivided profits, as shown by its last published
report, or (ii) apply to a court of competent jurisdiction for the
appointment of a successor or other proper relief, or take any other
lawful action under the circumstances; provided, however, that Fund
will reimburse IFTC for its reasonable costs and expenses, including
reasonable attorney's fees, incurred in connection therewith; and
D. IFTC will, upon payment of all sums due to IFTC from Fund hereunder or
otherwise, deliver at IFTC's office (i) all accounts and records to
the successor investment accounting and recordkeeping agent or, if
none, to Fund; and (ii) all Assets, duly endorsed and in form for
transfer, to the successor custodian, or as specified by the court.
IFTC will co-operate in effecting changes in book-entries at all
Depositories. Upon delivery to a successor or as specified by the
court, IFTC will have no further obligations or liabilities hereunder.
In the event that accounts, records or Assets remain in the possession of
IFTC after the date of termination hereof for any reason other than IFTC's
failure to deliver the same, IFTC is entitled to compensation as provided
in the then-current fee schedule for its services during such period, and
the provisions hereof relating to the duties and obligations of IFTC will
8 NOTICES. All notices, requests and instructions must be in writing and
addressed to Fund at the address set forth above, or at such other address
as Fund may have designated to IFTC
16
in writing. All notices, requests and Instructions must be in writing and
addressed to IFTC at the address set forth above, Attention: Custody
Department, or to such other address as it may have designated to Fund in
writing. All notices, requests and instruction will be deemed to have been
properly given if delivered in person, by telecopier, by nationally
recognized overnight delivery service, or by first class mail, postage
prepaid.
9 THE SYSTEMS; CONFIDENTIALITY.
A. If IFTC provides Fund direct access to the computerized investment
portfolio custody, recordkeeping and accounting systems used by IFTC
("Systems") or if IFTC and Fund agree to utilize any secure electronic
system of communication to transmit data or other information, Fund
agrees to implement and enforce appropriate security policies and
procedures reasonably designed to prevent unauthorized or improper
access to or use of the Systems or such other system.
B. Fund agrees to use its best efforts to preserve the confidentiality of
the Systems and the tapes, books, reference manuals, instructions,
records, programs, documentation and information of, and other
materials relevant to, the Systems and the business of IFTC
("Confidential Information"). Fund agrees that it will not voluntarily
disclose any such Confidential Information to any other person other
than its own employees who reasonably have a need to know such
information pursuant hereto. Fund will return all such Confidential
Information to IFTC upon termination or expiration hereof.
C. Fund has been informed that the Systems are licensed for use by IFTC
from one or more third parties ("Licensors"), and Fund acknowledges
that IFTC and Licensors have proprietary rights in and to the Systems
and all other IFTC or Licensor programs, code, techniques, know-how,
data bases, supporting documentation, data formats, and procedures,
including without limitation any changes or modifications made at the
request or expense or both of Fund (collectively, the "Protected
Information"). Fund acknowledges that the Protected Information
constitutes confidential material and trade secrets of IFTC and
Licensors. Fund will use its best efforts to preserve the
confidentiality of the Protected Information, and Fund hereby
acknowledges that any unauthorized use, misuse, disclosure or taking
of Protected Information, residing or existing internal or external to
a computer, computer system, or computer network, or the knowing and
unauthorized accessing or causing to be accessed of any computer,
computer system, or computer network, may be subject to civil
liabilities and criminal penalties under applicable law. Fund will so
inform employees and agents who have access to the Protected
Information or to any computer equipment capable of accessing the
same. Licensors are intended to be and are third party beneficiaries
of Fund's obligations and undertakings contained in this Section.
D. Fund hereby represents and warrants to IFTC that, to its knowledge,
the Systems are appropriate and suitable for its use. THE SYSTEMS ARE
PROVIDED ON AN AS IS, AS AVAILABLE BASIS. IFTC EXPRESSLY DISCLAIMS ALL
17
WARRANTIES EXCEPT THOSE EXPRESSLY STATED HEREIN INCLUDING, BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS OF A
PARTICULAR PURPOSE.
10 MULTIPLE PORTFOLIOS. If Fund is comprised of more than one Portfolio:
A. Each Portfolio will be regarded for all purposes hereunder as a
separate party apart from each other Portfolio. Unless the context
otherwise requires, with respect to every transaction covered hereby,
every reference herein to Fund is deemed to relate solely to the
particular Portfolio to which such transaction relates. Under no
circumstances will the rights, obligations or remedies with respect to
a particular Portfolio constitute a right, obligation or remedy
applicable to any other Portfolio. The use of this single document to
memorialize the separate agreement of each Portfolio is understood to
be for clerical convenience only and will not constitute any basis for
joining the Portfolios for any reason.
B. Fund may appoint IFTC as its custodian and investment accounting and
recordkeeping agent for additional Portfolios from time to time by
written notice, provided that IFTC consents to such addition. Rates or
charges for each additional Portfolio will be as agreed upon by IFTC
and Fund in writing.
11 MISCELLANEOUS.
A. This Agreement will be construed according to, and the rights and
liabilities of the parties hereto will be governed by, the laws of the
State of Missouri, without reference to the choice of laws principles
thereof.
B. All terms and provisions hereof will be binding upon, inure to the
benefit of and be enforceable by the parties hereto and their
respective successors and permitted assigns.
C. The representations and warranties, the indemnifications extended
hereunder, and the provisions of Section 9 hereof are intended to and
will continue after and survive the expiration, termination or
cancellation hereof.
D. No provisions hereof may be amended or modified in any manner except
by a written agreement properly authorized and executed by each party
hereto.
E. The failure of either party to insist upon the performance of any
terms or conditions hereof or to enforce any rights resulting from any
breach of any of the terms or conditions hereof, including the payment
of damages, will not be construed as a continuing or permanent waiver
of any such terms, conditions, rights or privileges, but the same will
continue and remain in full force and effect as if no such forbearance
or waiver had occurred. No waiver, release or discharge of any party's
rights hereunder will be effective unless contained in a written
instrument signed by the party sought to be charged.
18
F. The captions herein are included for convenience of reference only,
and in no way define or limit any of the provisions hereof or
otherwise affect their construction or effect.
G. This Agreement may be executed in two or more counterparts, each of
which is deemed an original but all of which together constitute one
and the same instrument.
H. If any provision hereof is determined to be invalid, illegal, in
conflict with any law or otherwise unenforceable, the remaining
provisions hereof will be considered severable and will not be
affected thereby, and every remaining provision hereof will remain in
full force and effect and will remain enforceable to the fullest
extent permitted by applicable law.
I. This Agreement may not be assigned by either party hereto without the
prior written consent of the other party.
J. Neither the execution nor performance hereof will be deemed to create
a partnership or joint venture by and between IFTC and Fund or any
Portfolio.
K. Except as specifically provided herein, this Agreement does not in any
way affect any other agreements entered into among the parties hereto
and any actions taken or omitted by either party hereunder will not
affect any rights or obligations of the other party hereunder.
L. Notice is hereby given that a copy of Fund's Trust Agreement and all
amendments thereto is on file with the Secretary of State of the state
of its organization; that this Agreement has been executed on behalf
of Fund by the undersigned duly authorized representative of Fund in
his/her capacity as such and not individually; and that the
obligations of this Agreement are binding only upon the assets and
property of Fund and not upon any trustee, officer of shareholder of
Fund individually. No portfolio shall have any liability for the
obligations of any other Portfolios under this Agreement
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective duly authorized officers.
INVESTORS FIDUCIARY TRUST CLEARWATER INVESTMENT TRUST
COMPANY
By: /s/▇▇▇▇▇ ▇. Strain By: /s/▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
Title: EVP Title: Chairman
19
EXHIBIT A -- INCOME AVAILABILITY SCHEDULE
Foreign--Income will be credited contractually on pay day in the markets noted
with Contractual Income Policy. The markets noted with Actual income policy will
be credited income when it is received.
--------------- --------------------- --------------------- --------------------- -------------------- --------------------
Market Income Policy Market Income Policy Market Income Policy
--------------- --------------------- --------------------- --------------------- -------------------- --------------------
--------------- --------------------- --------------------- --------------------- -------------------- --------------------
Argentina Actual Hong Kong Contractual Poland Actual
--------------- --------------------- --------------------- --------------------- -------------------- --------------------
--------------- --------------------- --------------------- --------------------- -------------------- --------------------
Australia Contractual Hungary Actual Portugal Contractual
--------------- --------------------- --------------------- --------------------- -------------------- --------------------
--------------- --------------------- --------------------- --------------------- -------------------- --------------------
Austria Contractual India Actual Russia Actual
--------------- --------------------- --------------------- --------------------- -------------------- --------------------
--------------- --------------------- --------------------- --------------------- -------------------- --------------------
Bahrain Actual Indonesia Actual Singapore Contractual
--------------- --------------------- --------------------- --------------------- -------------------- --------------------
--------------- --------------------- --------------------- --------------------- -------------------- --------------------
Bangladesh Actual Ireland Actual Slovak Republic Actual
--------------- --------------------- --------------------- --------------------- -------------------- --------------------
--------------- --------------------- --------------------- --------------------- -------------------- --------------------
Belgium Contractual Israel Actual South Africa Actual
--------------- --------------------- --------------------- --------------------- -------------------- --------------------
--------------- --------------------- --------------------- --------------------- -------------------- --------------------
Bermuda Actual Italy Contractual South Korea Actual
--------------- --------------------- --------------------- --------------------- -------------------- --------------------
--------------- --------------------- --------------------- --------------------- -------------------- --------------------
* Bolivia Actual Ivory Coast Actual Spain Contractual
--------------- --------------------- --------------------- --------------------- -------------------- --------------------
--------------- --------------------- --------------------- --------------------- -------------------- --------------------
Botswana Actual * Jamaica Actual Sri Lanka Actual
--------------- --------------------- --------------------- --------------------- -------------------- --------------------
--------------- --------------------- --------------------- --------------------- -------------------- --------------------
Brazil Actual Japan Contractual Swaziland Actual
--------------- --------------------- --------------------- --------------------- -------------------- --------------------
--------------- --------------------- --------------------- --------------------- -------------------- --------------------
Canada Contractual Jordan Actual Sweden Contractual
--------------- --------------------- --------------------- --------------------- -------------------- --------------------
--------------- --------------------- --------------------- --------------------- -------------------- --------------------
Chile Actual Kenya Actual Switzerland Contractual
--------------- --------------------- --------------------- --------------------- -------------------- --------------------
--------------- --------------------- --------------------- --------------------- -------------------- --------------------
China Actual Lebanon Actual Taiwan Actual
--------------- --------------------- --------------------- --------------------- -------------------- --------------------
--------------- --------------------- --------------------- --------------------- -------------------- --------------------
Colombia Actual Luxembourg Actual Thailand Actual
--------------- --------------------- --------------------- --------------------- -------------------- --------------------
--------------- --------------------- --------------------- --------------------- -------------------- --------------------
Cyprus Actual Malaysia Actual * Trinidad & Actual
Tobago
--------------- --------------------- --------------------- --------------------- -------------------- --------------------
--------------- --------------------- --------------------- --------------------- -------------------- --------------------
Czech Republic Actual Mauritius Actual * Tunisia Actual
--------------- --------------------- --------------------- --------------------- -------------------- --------------------
--------------- --------------------- --------------------- --------------------- -------------------- --------------------
Denmark Contractual Mexico Actual Turkey Actual
--------------- --------------------- --------------------- --------------------- -------------------- --------------------
--------------- --------------------- --------------------- --------------------- -------------------- --------------------
Ecuador Actual Morocco Actual United Kingdom Contractual
--------------- --------------------- --------------------- --------------------- -------------------- --------------------
--------------- --------------------- --------------------- --------------------- -------------------- --------------------
Egypt Actual Namibia Actual United States See Attached
--------------- --------------------- --------------------- --------------------- -------------------- --------------------
--------------- --------------------- --------------------- --------------------- -------------------- --------------------
**Euroclear Contractual/ Netherlands Contractual Uruguay Actual
Actual
--------------- --------------------- --------------------- --------------------- -------------------- --------------------
--------------- --------------------- --------------------- --------------------- -------------------- --------------------
Euro CDs Actual New Zealand Contractual Venezuela Actual
--------------- --------------------- --------------------- --------------------- -------------------- --------------------
--------------- --------------------- --------------------- --------------------- -------------------- --------------------
Finland Contractual Norway Contractual Zambia Actual
--------------- --------------------- --------------------- --------------------- -------------------- --------------------
--------------- --------------------- --------------------- --------------------- -------------------- --------------------
France Contractual Oman Actual Zimbabwe Actual
--------------- --------------------- --------------------- --------------------- -------------------- --------------------
--------------- --------------------- --------------------- --------------------- -------------------- --------------------
Germany Contractual Pakistan Actual
--------------- --------------------- --------------------- --------------------- -------------------- --------------------
--------------- --------------------- --------------------- --------------------- -------------------- =====================
Ghana Actual Peru Actual
--------------- --------------------- --------------------- --------------------- -------------------- --------------------
--------------- --------------------- --------------------- --------------------- -------------------- --------------------
Greece Actual Philippines Actual
--------------- --------------------- --------------------- --------------------- -------------------- --------------------
20
* Market is not 17F-5 eligible
** For Euroclear, contractual income paid only in markets listed with Income
Policy of Contractual.
United States--
------------------- ------------------------- -------------------------- ------------------------- -------------------------
Income Type DTC FED PTC Physical
------------------- ------------------------- -------------------------- ------------------------- -------------------------
------------------- ------------------------- -------------------------- ------------------------- -------------------------
Dividends Contractual N/A N/A Actual
------------------- ------------------------- -------------------------- ------------------------- -------------------------
------------------- ------------------------- -------------------------- ------------------------- -------------------------
Fixed Rate Contractual Contractual N/A Actual
Interest
------------------- ------------------------- -------------------------- ------------------------- -------------------------
------------------- ------------------------- -------------------------- ------------------------- =========================
Variable Rate Contractual Contractual N/A Actual
Interest
------------------- ------------------------- -------------------------- ------------------------- -------------------------
------------------- ------------------------- -------------------------- ------------------------- -------------------------
GNMA I N/A N/A Contractual PD +1 N/A
------------------- ------------------------- -------------------------- ------------------------- -------------------------
------------------- ------------------------- -------------------------- ------------------------- -------------------------
GNMA II N/A N/A Contractual PD *** N/A
------------------- ------------------------- -------------------------- ------------------------- -------------------------
------------------- ------------------------- -------------------------- ------------------------- -------------------------
Mortgages Actual Contractual Contractual Actual
------------------- ------------------------- -------------------------- ------------------------- -------------------------
------------------- ------------------------- -------------------------- ------------------------- -------------------------
Maturities Actual Contractual N/A Actual
------------------- ------------------------- -------------------------- ------------------------- -------------------------
Exceptions to the above Contractual Income Policy include securities that
are:
Involved in a trade whose settlement either failed, or is pending over
the record date, (excluding the United States)
On loan under a self directed securities lending program other than
IFTC's own vendor lending program;
Known to be in a condition of default, or suspected to present a risk
of default or payment delay;
In the asset categories, without limitation, of Private Placements,
Derivatives, Options, Futures, CMOs, and Zero Coupon Bonds
Securities whose amount of income and redemption cannot be calculated
in advance of payable date, or determined in advance of actual
collection, examples include ADRs;
Payments received as the result of a corporate action, not limited to,
bond calls, mandatory or optional puts, and tender offers.
*** For GNMA II securities, if the 19th day of the month is a business
day, Payable/Distribution Date is the next business day. If the 19th
is not a business day, but the 20th is a business day,
Payable/Distribution date is the first business day after the 20th. If
both the 19th and 20th are not business days, Payable/Distribution
will be the next business day thereafter.
21
EXHIBIT B -- FUNDS TRANSFER OPERATING GUIDELINES
1 OBLIGATION OF THE SENDER: IFTC is authorized to promptly debit Fund's
("Client's") account(s) upon the receipt of a payment order in compliance with
any of the Security Procedures chosen by the Client, from those offered on the
attached selection form (and any updated selection forms hereafter executed by
the Client), for funds transfers and in the amount of money that IFTC has been
instructed to transfer. IFTC is hereby instructed to accept funds transfer
instructions only via the delivery methods and Security Procedures indicated on
the attached selection form (and any updated executed by the Client). The Client
agrees that the Security Procedures are reasonable and adequate for its wire
transfer transactions and agrees to be bound by any payment orders, amendments
and cancellations, whether or not authorized, issued in its name and accepted by
IFTC after being confirmed by any of the selected Security Procedures. The
Client also agrees to be bound by any other valid and authorized payment order
accepted by IFTC. IFTC shall execute payment orders in compliance with the
selected Security Procedures and with the Client's/Investment Manager's
instructions on the execution date provided that such payment order is received
by the customary deadline for processing such a request, unless the payment
order specifies a later time. IFTC will use reasonable efforts to execute on the
execution date payment orders received after the customary deadline, but if it
is unable to execute any such payment order on the execution date, such payment
order will be deemed to have been received on the next business day.
2 SECURITY PROCEDURES: The Client acknowledges that the selected Security
Procedures were selected by the Client from Security Procedures offered by IFTC.
The Client shall restrict access to confidential information relating to the
Security Procedures to authorized persons as communicated in writing to IFTC.
The Client must notify IFTC immediately if it has reason to believe unauthorized
persons may have obtained access to such information or of any change in the
Client's authorized personnel. IFTC shall verify the authenticity of all
instructions according to the selected Security Procedures.
3 ACCOUNT NUMBERS: IFTC shall process all payment orders on the basis of the
account number contained in the payment order. In the event of a discrepancy
between any name indicated on the payment order and the account number, the
account number shall take precedence and govern. Financial institutions that
receive payment orders initiated by IFTC at the instruction of the Client may
also process payment orders on the basis of account numbers, regardless of any
name included in the payment order. IFTC will also rely on any financial
institution identification numbers included in any payment order, regardless of
any financial institution name included in the payment order.
4 REJECTION: IFTC reserves the right to decline to process or delay the
processing of a payment order which (a) is in excess of the collected balance in
the account to be charged at the time of IFTC's receipt of such payment order;
(b) if initiating such payment order would cause IFTC, in IFTC's sole judgment,
to exceed any applicable volume, aggregate dollar, network, time, credit or
similar limits upon wire transfers; or (c) if IFTC, in good faith, is unable to
satisfy itself that the transaction has been properly authorized.
22
5 CANCELLATION OR AMENDMENT: IFTC shall use reasonable efforts to act on all
authorized requests to cancel or amend payment orders received in compliance
with the selected Security Procedures provided that such requests are received
in sufficient time to afford IFTC a reasonable opportunity to act prior to
executing the payment order. However, IFTC assumes no liability if the request
for amendment or cancellation cannot be satisfied by IFTC's reasonable efforts.
6 ERRORS: IFTC shall assume no responsibility for failure to detect any
erroneous payment order provided that IFTC complies with the payment order
instructions as received and IFTC complies with the selected Security
Procedures. The Security Procedures are established for the purpose of
authenticating payment orders only and not for the detection of errors in
payment orders.
7 INTEREST AND LIABILITY LIMITS: IFTC shall assume no responsibility for lost
interest with respect to the refundable amount of any unauthorized payment
order, unless IFTC is notified of the unauthorized payment order within thirty
(30) days of notification by IFTC of the acceptance of such payment order. In no
event (including but not limited to failure to execute a payment order) shall
IFTC be liable for special, indirect or consequential damages, even if advised
of the possibility of such damages.
8 AUTOMATED CLEARING HOUSE ("ACH") CREDIT ENTRIES/PROVISIONAL PAYMENTS: When the
Client initiates or receives ACH credit and debit entries pursuant to these
Guidelines and the rules of the National Automated Clearing House Association
and the Mid-America Payment Exchange or other similar body, IFTC or its agent
will act as an Originating Depository Financial Institution and/or Receiving
Depository Financial Institution, as the case may be, with respect to such
entries. Credits given with respect to an ACH credit entry are provisional until
final settlement for such entry is received from the Federal Reserve Bank. If
such final settlement is not received, the Client agrees to promptly refund the
amount credited to the Client in connection with such entry, and the party
making payment to the Client via such entry shall not be deemed to have paid the
amount of the entry.
9 CONFIRMATIONS: Confirmation of IFTC's execution of payment orders shall
ordinarily be provided within 24 hours. Notice may be delivered through IFTC's
account statements, advices, information systems, or by facsimile or callback.
The Client must report any objections to the execution of a payment order within
30 days.
10 MISCELLANEOUS: IFTC may use the Federal Reserve System Fedwire to execute
payment orders, and any payment order carried in whole or in part through
Fedwire will be subject to applicable Federal Reserve Board rules and
regulations. IFTC and the Client agree to cooperate to attempt to recover any
funds erroneously paid to wrong parties, regardless of any fault of IFTC or the
Client, but the party responsible for the erroneous payment shall bear all costs
and expenses incurred in trying to effect such recovery. These Guidelines may
not be amended except by a written agreement signed by the parties.
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SECURITY PROCEDURES SELECTION FORM
Please select one or more of the funds transfer security procedures indicated
below.
[] SWIFT SWIFT (Society for Worldwide Interbank Financial Telecommunication)
is a cooperative society owned and operated by member financial
institutions that provides telecommunication services for its membership.
Participation is limited to securities brokers and dealers, clearing and
depository institutions, recognized exchanges for securities, and
investment management institutions. SWIFT provides a number of security
features through encryption and authentication to protect against
unauthorized access, loss or wrong delivery of messages, transmission
errors, loss of confidentiality and fraudulent changes to messages.
Selection of this security procedure would be most appropriate for existing
SWIFT members.
[] REMOTE BATCH TRANSMISSION Wire transfer instructions are delivered via
Computer-to-Computer (CPU-CPU) data communications between the Client
and/or its agent and IFTC and/or its agent. Security procedures include
encryption and/or the use of a test key by those individuals authorized as
Automated Batch Verifiers or a callback procedure to those individuals.
Clients selecting this option should have an existing facility for
completing CPU-CPU transmissions. This delivery mechanism is typically used
for high-volume business such as shareholder redemptions and dividend
payments.
X TELEPHONE CONFIRMATION (CALL BACK) This procedure requires Clients to
designate individuals as authorized initiators and authorized verifiers.
IFTC will verify that the instruction contains the signature of an
authorized person and prior to execution of the payment order, will contact
someone other than the originator at the Client's location to authenticate
the instruction. Non-repetitive wire transfers with the original signatures
of 2 authorized persons are acceptable and do not require a call back.
Selection of this alternative is appropriate for Clients who do not have
the capability to use other security procedures.
[] TEST KEY Test Key confirmation will be used to verify all non-repetitive
funds transfer instructions received via facsimile or phone. IFTC will
provide test keys if this option is chosen. IFTC will verify that the
instruction contains the signature of an authorized person and prior to
execution of the payment order, will authenticate the test key provided
with the corresponding test key at IFTC. Non-repetitive wire transfers with
the original signatures of 2 authorized persons are acceptable and do not
require a test key. Selection of this alternative is appropriate for
Clients who do not have the capability to use other security procedures.
X REPETITIVE WIRES For situations where funds are transferred periodically
from an existing authorized account to the same payee (destination bank and
account number) and only the date and currency amount are variable, a
repetitive wire may be implemented. Repetitive wires will be subject to a
$10 million limit. If the payment order exceeds the $10 million limit, the
instruction will be confirmed by telephone or test key prior to execution.
Repetitive wire instructions must be reconfirmed annually. Clients may
establish Repetitive Wires by following the agreed upon security procedures
for Non-Repetitive Wire Transfers as described by Telephone Confirmation
(Call Back) or Test Key. This alternative is recommended whenever funds are
frequently transferred between the same two accounts.
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[] STANDING INSTRUCTIONS Funds are transferred by IFTC to a counter party on
the Client's established list of authorized counter parties. Only the date
and the dollar amount are variable. Clients may establish Standby
Instructions by following the agreed upon security procedures for
Non-Repetitive Wire Transfers as described by Telephone Confirmation (Call
Back) or Test Key. This option is used for transactions that include but
are not limited to Foreign Exchange Contracts, Time Deposits and Tri-Party
Repurchase Agreements.
[] AUTOMATED CLEARING HOUSE (ACH) IFTC or its agent receives an automated
transmission from a Client for the initiation of payment (credit) or
collection (debit) transactions through the ACH network. The transactions
contained on each transmission or tape must be authenticated by the Client.
The transmission is sent from the Client's or its agent's system to IFTC's
or its agent's system with encryption.
KEY CONTACT INFORMATION
Whom shall we contact to implement your selection(s)?
CLIENT OPERATIONS CONTACT ALTERNATE CONTACT
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ Hol
Name Name
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
City/State/Zip Code City/State/Zip Code
▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇
Telephone Number Telephone Number
▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇-▇▇▇-▇▇▇▇
Facsimile Number Facsimile Number
SWIFT Number
CLEARWATER INVESTMENT TRUST
By: /s/▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
Title: Chairman
9/29/97
Date:
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EXHIBIT C--REUTERS DATA SERVICE AGREEMENT
The undersigned acknowledges and agrees that some of the data being provided in
the service by IFTC to Fund contains information supplied to IFTC by Reuters
America Inc. ("Reuters") (the "Data"). Fund agrees that:
(i) although Reuters makes every effort to ensure the accuracy and
reliability of the Data, Fund acknowledges that Reuters, its
employees, agents, contractors, subcontractors, contributors
and third party providers will not be liable for any loss,
cost or damage suffered or incurred by Fund arising out of any
fault, interruption or delays in the Data or out of any
inaccuracies, errors or omissions in the Data however such
faults, interruptions, delays, inaccuracies, errors or
omissions arise, unless due to the gross negligence or willful
misconduct of Reuters;
(ii) it will not transfer, transmit, recirculate by digital or
analogue means, republish or resell all or part of the Data;
and
(iii certain parts of the Data are proprietary and unique to Reuters.
The undersigned further agrees that the benefit of this clause will inure to the
benefit of Reuters.
CLEARWATER INVESTMENT TRUST
By: /s/▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
Title: Chairman
Date: 9/29/97
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