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EXHIBIT 8
CUSTODIAN AGREEMENT
between
INTRUST FUNDS TRUST
and
INTRUST BANK, N.A.
DATED NOVEMBER 25, 1996
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TABLE OF CONTENTS
Page No.
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I. DEFINITION AND EMPLOYMENT OF INTRUST BANK, N.A. AS
CUSTODIAN AND PROPERTY TO BE HELD BY IT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II. DUTIES OF THE CUSTODIAN WITH RESPECT TO PROPERTY
OF THE TRUST HELD BY THE CUSTODIAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
A. Holding Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
B. Delivery of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
C. Registration of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
D. Bank Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
E. Payments for Portfolio Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
F. Availability of Federal Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
G. Collection of Income . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
H. Payment of Portfolio Moneys . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
I. Liability for Payment in Advance of Receipt
of Securities Purchased . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
J. Payments for Repurchases or Redemptions of
Portfolio Shares of the Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
K. Appointment of Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
L. Deposit of Portfolio Assets in a Securities
Systems . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
M. Ownership Certificates for Tax Purchases . . . . . . . . . . . . . . . . . . . . . . . . 15
N. Proxies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
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O. Communications Relating to Portfolio
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
P. Proper Instructions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Q. Actions Permitted Without Express Authority . . . . . . . . . . . . . . . . . . . . . . . 19
R. Evidence of Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
S. No Liability Until Receipt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
T. Segregated Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
III. DUTIES OF CUSTODIAN WITH RESPECT TO BOOKS OF
ACCOUNT AND CALCULATION OF NET ASSET VALUE
AND NET INCOME . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
IV. RECORDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
V. OPINIONS OF TRUST'S INDEPENDENT PUBLIC
ACCOUNTANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
VI. REPORTS TO EACH PORTFOLIO AND INDEPENDENT
PUBLIC ACCOUNTANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
VII. COMPENSATION OF CUSTODIAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
VIII. RESPONSIBILITY OF CUSTODIAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
IX. FUNDS TRANSFERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
X. EFFECTIVE PERIOD, TERMINATION AND AMENDMENT . . . . . . . . . . . . . . . . . . . . . . . . . . 27
XI. SUCCESSOR CUSTODIAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
XII. INTERPRETIVE AND ADDITIONAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
XIII. TRUSTEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
XIV. APPLICABLE LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
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CUSTODIAN AGREEMENT
This Custodian Agreement between INTRUST Funds Trust,
hereinafter called the "Trust," a Delaware business trust, organized on January
26, 1996, pursuant to the Trust Instrument, as the same may be amended from
time to time, and INTRUST Bank N.A., hereinafter called "INTRUST" or the
"Custodian."
WITNESSETH:
That in consideration of the mutual covenants and agreements
hereinafter contained, the parties hereto agree as follows:
I. DEFINITIONS AND EMPLOYMENT OF INTRUST AS CUSTODIAN AND
PROPERTY TO BE HELD BY IT. The Trust is an open-end investment company
organized under the General Laws of the State of Delaware. For all purposes of
this Agreement, a "Portfolio" shall mean a separate portfolio of assets of the
Trust. The current portfolios are Cash Reserve Money Market Fund, Short Term
High Quality Fund, Intermediate Bond Income Fund, Stock Appreciation Fund,
International Multi-Manager Fund and Kansas Tax-Exempt Bond Fund. For the
purposes of this Agreement, the term "Portfolio Shares" shall be deemed to
refer to the shares of beneficial interest which are offered for each
Portfolio, and the term "Adviser" shall be deemed to refer to the investment
adviser of the Trust. The Trust hereby employs INTRUST as the custodian of the
assets of each Portfolio. In the event the Trust establishes one or more
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portfolios other than the Portfolios with respect to which the Trust decides to
retain the Custodian to act as custodian hereunder, the Trust shall so notify
the Custodian in writing. If the Custodian is willing to render such services,
the Custodian shall promptly notify the Trust in writing whereupon such
portfolio shall be deemed to be a Portfolio hereunder. The Trust agrees to
deliver to the Custodian all securities other than securities issued by the
Trust (the "Portfolio Securities") and cash owned by the Trust for the account
of each Portfolio, and all payments of income, payments of principal or capital
distributions received by the Trust with respect to all securities owned by the
Trust for the account of each Portfolio from time to time, and the cash
consideration received by the Trust for Portfolio Shares which may be issued or
sold from time to time. The Custodian shall not be responsible for any
property of the Trust held or received by the Trust and not delivered to the
Custodian.
The Custodian may from time to time employ one or more
sub-custodians. The terms of each sub-custodian agreement shall be approved by
a vote of the Trustees of the Trust. Each sub-custodian agreement shall
specify the same standard of care as is set forth in this Agreement.
II. DUTIES OF THE CUSTODIAN WITH RESPECT TO PROPERTY OF THE TRUST HELD BY THE
CUSTODIAN.
A. Holding Securities. The Custodian shall hold, earmark
and physically segregate for the account of each Portfolio all non-cash
property delivered to it, including all securities
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owned by each Portfolio, other than securities which are maintained pursuant to
Section L of this Article II in a clearing agency which acts as a securities
depository or in a book-entry system authorized by the U.S. Department of the
Treasury, collectively referred to herein as a "Securities System".
B. Delivery of Securities. The Custodian shall release and
deliver securities owned by each Portfolio held by the Custodian or in a
Securities System account of the Custodian only upon receipt of Proper
Instructions (as defined below in Section P of this Article II), which may be
continuing instructions when deemed appropriate by the Trust and the Custodian,
and only in the following cases:
(1) Except in the case of a sale effected through a
Securities System, upon sale of such securities for
the account of each Portfolio and receipt of
payment therefor;
(2) Upon the receipt of payment in connection with any
repurchase agreement related to such securities
entered into by a Portfolio;
(3) In the case of a sale effected through a Securities
System, in accordance with the provisions of
Section L hereof;
(4) To the transfer or forwarding agent in connection
with tender or other similar offers for Portfolio
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Securities of each Portfolio;
(5) To the issuer thereof or its agent when such
Portfolio Securities are called, redeemed, retired
or otherwise become payable; provided that, in any
such case, the cash or other consideration is to be
delivered to the Custodian;
(6) To the issuer thereof, or its agent, for transfer
into the name of a Portfolio or into the name of
any nominee or nominees of the Custodian or into
the name or nominee name of any agent appointed
pursuant to Section K of this Article II or into
the name or nominee name of any sub-custodian
appointed pursuant to Article I; or for exchange
for a different number of bonds, certificates or
other evidence representing the same aggregate face
amount or number of units; provided that, in any
such case, the new securities are to be delivered
to the Custodian;
(7) Upon the sale of such securities for the account of
a Portfolio, to the broker or its clearing agent
against a receipt for examination in accordance
with "street delivery" custom;
(8) For exchange or conversion pursuant to any plan of
merger, consolidation, recapitalization,
reorganization or readjustment of the securities of
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the issuer, or pursuant to provisions for
conversion contained in such securities, or
pursuant to any deposit agreement; provided that,
in any such case, the new securities and cash, if
any, are to be delivered to the Custodian;
(9) In the case of warrants, rights or similar
securities, the surrender thereof in the exercise
of such warrants, rights or similar securities or
the surrender of interim receipts or temporary
securities for definitive securities; provided
that, in any such case, the new securities and
cash, if any, are to be delivered to the Custodian;
(10) For delivery in connection with any loans of
securities made by a Portfolio, but only against
Proper Instructions from the Adviser, against
receipt of the designated collateral, which may be
in the form of cash or obligations issued by the
United States Government, its agencies or
instrumentalities;
(11) For delivery as security in connection with any
borrowings by a Portfolio requiring a pledge of
assets by such Portfolio, but only against receipt
of amounts borrowed;
(12) Upon receipt of instructions from the transfer
agent for the Trust, for delivery to such transfer
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agent or to holders of Portfolio Shares in
connection with distributions in kind in
satisfaction of requests by holders of Portfolio
Shares for repurchase or redemption;
(13) For delivery in accordance with the provisions of
any agreement among the Portfolio, the Custodian
and a broker-dealer registered under the Securities
Exchange Act of 1934 (the "Exchange Act") and a
member of The National Association of Securities
Dealers, Inc. (the "NASD"), relating to compliance
with the rules of The Options Clearing Corporation
and of any registered national securities exchange,
or of any similar organization or organizations,
regarding escrow or other arrangements in
connection with transactions by the Portfolio;
(14) For delivery in accordance with the provisions of
any agreement among the Portfolio, the Custodian,
and a Futures Commission Merchant registered under
the Commodity Exchange Act, relating to compliance
with the rules of the Commodity Futures Trading
Commission and/or any contract market or any
similar organization or organizations, regarding
account deposits in connection with transactions by
the Portfolio; and
(15) For any other proper corporate purposes, but only
upon receipt of, in addition to Proper
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Instructions, a notification signed by two officers
of the Trust and certified by the Secretary or an
Assistant Secretary of the Trust, specifying the
securities to be delivered, setting forth the
purposes for which such delivery is to be made,
declaring such purposes to be proper corporate
purposes, and naming the person or persons to whom
delivery of such securities shall be made.
C. Registration of Securities. Securities held by the
Custodian (other than bearer securities) shall be registered in the name of a
Portfolio or in the name of any nominee of the Custodian, or in the name or
nominee name of any agent appointed pursuant to Section K of Article II hereof
or in the name or nominee name of any sub-custodian appointed pursuant to
Article I. All securities accepted by the Custodian on behalf of a Portfolio
under the terms of this Contract shall be in "street" or other good delivery
form.
D. Bank Accounts. The Custodian shall open and
maintain a separate bank account or accounts in the name of each Portfolio,
subject only to draft or order by the Custodian acting pursuant to the terms of
this Contract, and shall hold in such account or accounts, subject to the
provisions hereof, all cash received by it from or for the account of each
Portfolio, other than cash maintained by each Portfolio in a bank account
established and used in accordance with Rule 17f-3 under the Investment Company
Act of 1940. Funds held by the Custodian for each Portfolio may be deposited
by it to its credit as Custodian in the commercial banking side of the
Custodian or in such other banks
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or trust companies as it may in its discretion deem necessary or desirable;
provided, however, that every such bank or trust company shall be qualified to
act as a custodian under the Investment Company Act of 1940 and that each such
bank or trust company and the funds to be deposited with each such bank or
trust company shall be approved by vote of a majority of the Trustees of the
Trust. Such funds shall be deposited by the Custodian in its capacity as
Custodian and shall be withdrawable by the Custodian only in that capacity.
E. Payment for Portfolio Shares. The Custodian shall
receive from the distributor of each Portfolio's Portfolio Shares or from the
transfer agent of the Trust and deposit into each Portfolio's account such
payments as are received for Portfolio Shares of each Portfolio issued or sold
from time to time by such Portfolio. The Custodian will provide timely
notification to each Portfolio and the transfer agent of any receipt by it of
cash payments for Portfolio Shares of such Portfolio.
F. Availability of Federal Funds. Upon mutual agreement
between each Portfolio and the Custodian, the Custodian shall, upon the receipt
of Proper Instructions and in accordance with the agreed deadlines, which may be
continuing instructions when deemed appropriate by the parties, make federal
funds available to each Portfolio as of specified times agreed upon from time to
time by such Portfolio and the Custodian in the amount of checks received in
payment for Portfolio Shares of each Portfolio which are deposited into such
Portfolio's account.
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G. Collection of Income. The Custodian shall collect on a
timely and reasonable basis all income and other payments with respect to
registered securities held hereunder to which each Portfolio shall be entitled
either by law or pursuant to custom in the securities business and shall collect
on a timely and reasonable basis all income and other payments with respect to
bearer securities if, on the date of payment by the issuer, such securities are
held by the Custodian or agent thereof and shall credit such income, as
collected, to such Portfolio's Custodian account. Without limiting the
generality of the foregoing, the Custodian shall detach and present for payment
all coupons and other income items requiring presentation as and when they
become due and shall collect interest when due on securities held hereunder.
The Custodian's obligations under this Section II.G. shall be to take all
reasonable and customary steps to collect such income and payments, and the
Custodian shall bear no responsibility for its failure to make collections
beyond the exercise of such reasonable and customary steps.
H. Payment of Portfolio Moneys. Upon receipt of Proper
Instructions, which may be continuing instructions when deemed appropriate by
the parties, the Custodian shall pay out moneys of a Portfolio in accordance
with its usual and customary business practice, in the following cases only:
(1) Upon the purchase of securities for the
account of a Portfolio but only (a) against
the delivery of such securities to the
Custodian (or any bank, banking firm or trust
company doing business in the
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United States or abroad which is qualified
under the Investment Company Act of 1940, as
amended, to act as custodian and has been
designated by the Custodian as its agent for
this purpose) registered in the name of such
Portfolio or in the name of a nominee of the
Custodian referred to in Section C of Article
II hereof or in proper form for transfer; (b)
in the case of a purchase effected through a
Securities System, in accordance with the
conditions set forth in Section L of Article
II hereof, or (c) in the case of repurchase
agreements, (i) against delivery of
securities either in certificate form or
through an entry crediting the Custodian's
account at the Federal Reserve Bank with such
securities, or (ii) against delivery of the
receipt evidencing purchase by the Portfolio
of securities owned by the Custodian along
with written evidence of the agreement by the
Custodian to repurchase such securities from
the Portfolio;
(2) In connection with conversion, exchange or
surrender of securities owned by a Portfolio
as set forth in Section B of Article II
hereof;
(3) For the redemption or repurchase of Portfolio
Shares as set forth in Section J of Article
II hereof;
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(4) For the payment of any expense or liability
incurred by a Portfolio, including but not
limited to the following payments for the
accounts of such Portfolio: interest, taxes,
management, administration, accounting,
transfer agent and legal fees, and operating
expenses of such Portfolio whether or not
such expenses are to be in whole or in part
capitalized or treated as deferred expenses;
(5) For the payment of any dividends declared
pursuant to the governing documents of a
Portfolio; and
(6) For any other proper corporate purposes, but
only upon receipt of, in addition to Proper
Instructions, a notification signed by two
officers of the Trust and certified by its
Secretary or an Assistant Secretary of the
Trust, specifying the amount of such payment,
setting forth the purpose of which such
payment is to be made, declaring such purpose
to be a proper corporate purpose, and naming
the person or persons to whom such payment is
to be made.
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 a Portfolio is made by the Custodian in advance
of receipt of the securities purchased in the absence of specific written
instructions from such Portfolio to
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so pay in advance, the Custodian shall be absolutely liable to such Portfolio
for such securities to the same extent as if the securities had been received
by the Custodian.
J. Payments for Repurchases or Redemptions of
Portfolio Shares of the Trust. The Custodian shall upon instruction from the
distributor or transfer agent deposit into the account of the appropriate
Portfolio such payments as are received for Shares of that Portfolio issued or
sold from time to time by the Portfolio. The Custodian will provide timely
notification to the Portfolio and the transfer agent of any receipt by it of
payments for Shares of such Portfolio.
From such funds as may be available for the purpose but
subject to the limitations of the Trust Instrument and any applicable votes of
the Board of Trustees of the Trust pursuant thereto, the Custodian shall, upon
receipt of Proper Instructions from the transfer agent, make funds available
for payment to holders of Shares who have delivered to the transfer agent a
request for redemption or repurchase of their Shares. In connection with the
redemption or repurchase of Shares of a Portfolio, the Custodian is authorized
upon receipt of instructions from the transfer agent to wire funds to the
transfer agent for payment by the transfer agent or through a commercial bank
designated by the redeeming shareholders. In connection with the redemption or
repurchase of Shares of the Portfolio, the Custodian shall honor checks drawn
on the Custodian by a holder of Shares, which checks have been furnished by the
Trust to the holder of Shares, when presented to the Custodian in accordance
with such
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procedures and controls as are mutually agreed upon from time to time between
the Trust and the Custodian.
K. Appointment of Agents. Subject to prior
approval by the Board of Trustees of the Trust, the Custodian may at any time
appoint any other bank or trust company which is itself qualified under the
Investment Company Act of 1940, as amended, to act as a custodian, as its agent
to carry out such of the provisions of this Article II as the Custodian may
from time to time direct.
L. Deposit of Portfolio Assets in a Securities
Systems. The Custodian may deposit and/or maintain securities owned by each
Portfolio in a clearing agency registered with the Securities and Exchange
Commission under Section 17A of the Securities Exchange Act of 1934, which acts
as a securities depository, or in the book-entry system authorized by the U.S.
Department of Treasury and certain federal agencies, collectively referred to
herein as a "Securities Systems" in accordance with applicable Federal Reserve
Board and Securities and Exchange Commission rules and regulations, if any, and
subject to the following provisions:
(1) The Custodian may keep securities of each
Portfolio in a Securities System provided
that such securities are represented in an
account (the "Account") of the Custodian in a
Securities System which shall not include any
assets of the Custodian other than assets
held as a fiduciary, custodian, or otherwise
for customers;
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(2) The records of the Custodian with respect to
securities of each Portfolio which are
maintained in its Securities System shall
identify by book-entry those securities
belonging to each Portfolio;
(3) The Custodian shall pay for securities
purchased for the account of each Portfolio
upon (i) receipt of advices from a Securities
System that such securities have been
transferred to the Account, and (ii) the
making of an entry on the records of the
Custodian to reflect such payment and
transfer for the account of each Portfolio.
The Custodian shall transfer securities sold
for the account of each Portfolio upon (i)
receipt of advices from a Securities System
that payment for such securities has been
transferred to the Account, and (ii) the
making of an entry on the records of the
Custodian to reflect such transfer and
payment for the account of such Portfolio.
Copies of all advices from its Securities
System of transfers of securities for the
account of each Portfolio shall be maintained
for such Portfolio by the Custodian and be
provided to such Portfolio at its request.
The Custodian shall furnish each Portfolio
confirmation of each transfer to or from the
account of such Portfolio in the form of
copies of daily transaction advices
reflecting each day's transactions in its
Securities System for the
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account of such Portfolio on the next
business day, which daily transaction advices
may be provided by electronic means;
(4) The Custodian shall have received the initial
or annual certificate, as the case may be,
required by Article X hereof;
(5) The Custodian shall provide each Portfolio
with any report obtained by the Custodian on
its Securities System's accounting system,
internal accounting control and procedures
for safeguarding securities deposited in its
Securities System;
(6) Anything to the contrary in this Agreement
notwithstanding, the Custodian shall be
liable to each Portfolio for any loss or
damage to such Portfolio resulting from use
of its Securities System by reason of any
acts of negligence, misfeasance or misconduct
of the Custodian or of any of its employees
or from any failure of the Custodian or any
such agent to make reasonable efforts to
enforce effectively such rights as it may
have against a Securities System; at the
election of each Portfolio, it shall be
entitled to be subrogated to the rights of
the Custodian with respect to any claim
against a Securities System or any other
person which the Custodian may have as a
consequence of any such loss or damage if and
to
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the extent that a Portfolio has not been
made whole for any such loss or damage.
M. Ownership Certificates for Tax Purposes. The
Custodian shall execute ownership and other certificates and affidavits for all
federal and state tax purposes in connection with receipt of income or other
payments with respect to securities of each Portfolio held by it and in
connection with transfers of securities.
N. Proxies. The Custodian shall, with respect
to the securities held by it hereunder, cause to be promptly executed by the
registered holder of such securities, if the securities are registered
otherwise than in the name of a Portfolio, all proxies, without indication of
the manner in which such proxies are to be voted, and shall promptly deliver to
the Adviser such proxies, all proxy soliciting materials and all notices
relating to such securities.
O. Communications Relating to Portfolio
Securities. The Custodian shall transmit promptly to the Adviser all written
information (including, without limitation, pendency of calls and maturities of
securities and expirations of rights in connection therewith) received by the
Custodian from issuers of the securities being held for such Portfolio.
(1) Notwithstanding any provision hereunder to
the contrary, with respect to Securities
which possess so-called put options or
similar characteristics
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which grant the Trust the option to redeem
such Securities prior to their maturity date
(the "Put Option Securities"), including, but
not limited to, so-called put bonds, the
Custodian shall not have any liability with
respect to the exercise or non-exercise of
any such Put Option, except that:
(a) With respect to put options which are
exercisable semiannually or less frequently
than semiannually, and where such Put Option
Security is actually delivered to the
Custodian not less than fifteen business days
prior to the put option exercise date, the
Custodian will use its best efforts to notify
the Trust and the Adviser of such put options
where correct and timely notification is
published in the publications or services
(the "Notification Sources") the Custodian
routinely uses for this purpose, or as to
which the Custodian receives timely notice
from the Trust;
(b) Once notified, the Trust must direct the
exercise or non-exercise of such put option
by written instrument delivered to the
Custodian not less than five business days
prior to the put option exercise date;
(c) For the purposes of this Section O(1), a
"business day" is a day on which the
Custodian is open for business under the laws
of the State of New York;
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the Notification Sources include, but are not
limited to The Wall Street Journal and/or
Depository Trust Company of New York. The
Custodian reserves the right to utilize other
Notification Sources or discontinue any of
the aforementioned Notification Sources at
any time and without notice. The Custodian
will not notify the Trust of put options
exercisable more frequently than
semiannually.
(2) With respect to tender or exchange offers,
the Custodian shall transmit promptly to the
Adviser all written information received by
the Custodian from issuers of the securities
whose tender or exchange is sought and from
the party (or his agents) making the tender
or exchange offer. If the Adviser desires to
take action with respect to any tender offer,
exchange offer or any other similar
transaction, the Adviser shall notify the
Custodian at least three business days prior
to the date on which the Custodian is to take
such action.
P. Proper Instructions. "Proper Instructions"
as used throughout this Article II means a writing signed or initialed by one
or more person or persons and in the manner as the Trustees, the Adviser or the
transfer agent, as the case may be, shall have authorized from time to time.
Each such writing shall set forth the transaction involved, including a
specific statement of the purpose of which such action is requested. The
Custodian may also
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accept and rely on instructions transmitted by the Trust or the Trust's
authorized agent including the Adviser, whether given orally, by telephone,
cable or telex, facsimile transmission or other electronic means which the
Custodian reasonably believes to be genuine. Oral instructions will be
considered Proper Instructions if the Custodian believes them to have been
given by a person authorized to give such instructions with respect to the
transaction involved. The Trust and the Adviser shall cause all oral
instructions to be confirmed in writing. Written confirmation of oral
instructions shall in no way affect any action the Custodian takes in reliance
upon the oral instructions. Upon receipt of a certificate of the Secretary or
an Assistant Secretary as to the authorization by the Trustees of the Trust
accompanied by a detailed description of procedures approved by the Trustees,
"Proper Instructions" may include communications effected directly between
electromechanical or electronic devices provided that the Trustees and the
Custodian agree that such procedures afford adequate safeguards for each
Portfolio's assets.
Q. Actions Permitted Without Express Authority.
The Custodian may in its discretion, without express authority from each
Portfolio:
(1) Make payments to itself or others for minor
expenses of handling securities or other
similar items relating to its duties under
this Agreement, provided that all such
payments shall be accounted for to each
Portfolio, such expenses shall include, but
not be limited to postage, shipping, courier,
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wire transfers, expenses to enforce any
obligation of any agent, sub-custodian or
Securities System and other out-of-pocket
expenses not assumed by the Custodian
pursuant to this Agreement;
(2) Surrender securities in temporary form in
exchange for securities in definitive form;
(3) Endorse for collection, in the name of each
Portfolio, checks, drafts and other
negotiable instruments; and
(4) In general, attend to all non-discretionary
details in connection with the sale,
exchange, substitution, purchase, transfer
and other dealings with the securities and
property of each Portfolio except as
otherwise directed by the Board of Trustees
of the Trust.
R. Evidence of Authority. The Custodian shall
be protected in acting upon any Proper Instructions whether oral or in writing,
and any notice, request, consent, certificate or other instrument or paper
believed by it to be genuine and to have been properly executed by or on behalf
of a Portfolio. The Custodian may receive and accept a certificate copy of a
vote of the Board of Trustees of the Trust as conclusive evidence (a) of the
authority of any person to act in accordance with such vote, or (b) of any
determination or of any action by the Board of Trustees pursuant to the Trust
Instrument as described in such vote, and such vote may
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be considered as in full force and effect until receipt by the Custodian of
written notice to the contrary.
S. No Liability Until Receipt. The Custodian
shall not be liable for, or considered to be the Custodian of, any money
whether or not represented by any check, draft, or other instrument for the
payment of money, or any securities received by it on behalf of any Portfolio
until the Custodian actually receives and collects such money or securities
directly or by the final crediting of the Account representing the Portfolio's
interest in a Securities System, or a subcustodian.
T. Segregated Accounts. The Custodian shall
upon receipt of Proper Instructions establish and maintain a segregated account
or accounts for and on behalf of a Portfolio, into which account or accounts
may be transferred cash and/or securities, including securities maintained in
an account by the Custodian in a Securities System or with a subcustodian, (i)
in accordance with the provisions of any agreement among the Trust, the
Custodian and a broker-dealer registered under the Exchange Act and a member of
the NASD (or any futures commission merchant registered under the Commodity
Exchange Act), relating to compliance with the rules of The Options Clearing
Corporation and of any registered national securities exchange (or Commodity
Futures Trading Commission or any registered contract market) or of any similar
organization or organizations, regarding escrow or other arrangements in
connection with transactions by such Portfolio, (ii) for purposes of
segregating cash or government securities in connection with options purchased,
sold or written by such Portfolio or commodity
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futures contracts or options thereon purchased of sold by such Portfolio, (iii)
for the purposes of compliance by such Portfolio 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
corporate purposes.
III. DUTIES OF CUSTODIAN WITH RESPECT TO BOOKS OF ACCOUNT AND
CALCULATION OF NET ASSET VALUE AND NET INCOME. The Custodian shall cooperate
with and supply necessary information to the entity or entities appointed by
the Trustees to keep the books of account of each Portfolio, compute the net
asset value per share of the outstanding shares of each Portfolio and compute
the daily net income of each Portfolio.
IV. RECORDS. The Custodian shall create and maintain all
records relating to its activities and obligations under this Agreement in such
manner as will meet the obligations of each Portfolio under the Investment
Company Act of 1940, including, but not limited to Section 31 thereof and Rules
31a-1 and 31a-2 thereunder, applicable federal and state tax laws and any other
law or administrative rules or procedures which may be applicable to each
Portfolio. All such records shall be available to each Portfolio and shall at
all times during the regular business hours of the Custodian be open for
inspection by duly authorized officers, employees or agents of each Portfolio
and employees and agents of the Securities and Exchange Commission. The
Custodian shall, at each Portfolio's request, supply such Portfolio with a
tabulation of securities
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owned by such Portfolio and held by the Custodian and shall, when requested to
do so by a Portfolio and for such compensation as shall be agreed upon between
such Portfolio and the Custodian, include certificate numbers in such
tabulations.
V. OPINION OF TRUST'S INDEPENDENT PUBLIC ACCOUNTANTS. The
Custodian shall take all reasonable action, as the Trust may from time to time
request, to obtain from year to year favorable opinions from the Trust's
independent public accountants with respect to its activities hereunder in
connection with the preparation of the Trust's Form N-1A and the Trust's Form
N-SAR or other annual reports to the Securities and Exchange Commission and
with respect to any other requirements of such Commission.
VI. REPORTS TO EACH PORTFOLIO BY INDEPENDENT PUBLIC ACCOUNTANTS.
The Custodian shall provide each Portfolio, at such times as each Portfolio may
reasonably require and at the Portfolio's expenses, with reports by independent
public accountants on the accounting system, internal accounting control and
procedures for safeguarding securities, including securities deposited and/or
maintained in a Securities System, relating to the services provided by the
Custodian under this Agreement; such reports, which shall be of sufficient
scope and in sufficient detail, as may reasonably be required by each
Portfolio, to provide reasonable assurance that any material inadequacies
disclosed by such examination, and, if there are no such inadequacies, shall so
state.
VII. COMPENSATION OF CUSTODIAN. The Custodian shall be entitled
to reasonable compensation for its services as Custodian, as set
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forth in the Supplements to this Agreement.
VIII. RESPONSIBILITY OF CUSTODIAN. The Custodian shall not be
responsible for the title, validity or genuineness of any property or evidence
of title thereto received by it or delivered by it pursuant to this Agreement
and shall be held harmless in acting upon any notice, request, consent,
certificate or other instrument believed by it to be genuine and to be signed
by the proper party or parties.
The Custodian shall be entitled to rely on and may act
upon advice of counsel (who may be counsel for the Trust) on all matters, and
shall be without liability for any action taken or omitted by it in good faith
in accordance with such advice. Notwithstanding the foregoing, the
responsibility of the Custodian with respect to redemptions effected by check
may be set forth in a separate agreement entered into between the Custodian, a
Portfolio and the Adviser.
In carrying out the provisions of this Agreement the
Custodian shall not be held liable for any act or failure to act which shall
constitute the exercise of reasonable care, or is in accordance with industry
standards and practice. Each Portfolio shall indemnify the Custodian and hold
it harmless from and against all claims, liabilities, and expenses (including
attorneys' fees) which the Custodian may suffer or incur on account of being
Custodian hereunder except such claims, liabilities and expenses arising from
the Custodian's own acts or omissions to act which shall fail to meet the
foregoing standard of care.
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If a Portfolio requires the Custodian to take any
action with respect to securities, which action involves the payment of money
or which action may, in the opinion of the Custodian, result in the Custodian
or its nominee assigned to such Portfolio being liable for the payment of money
or incurring liability of some other form, such Portfolio, 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.
If a Portfolio requires the Custodian to advance cash
or securities 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 this Agreement, except such
as may arise from the Custodian's own acts or omissions to act in the absence
of reasonable care and in a manner that is not consistent with industry
standards and practice, any property at any time held for the account of such
Portfolio shall be security therefor and should such Portfolio fail to repay
the Custodian promptly, the Custodian shall be entitled to utilize available
cash and to dispose of such Portfolio's assets to the extent necessary to
obtain reimbursement.
IX. FUNDS TRANSFERS. For the purposes of this Section IX,
"funds transfer" shall mean a series of transactions, beginning with a payment
order of an originator made for the purpose of making payment to the
beneficiary of such order (such beneficiary is referred to as the
"beneficiary") but does not include debit transfer made through the automated
clearing house system or transfers governed by the Federal Electronic Funds
Transfer Act and
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"payment order" shall mean an instruction transmitted orally, electronically,
or in writing to pay a fixed or determinable amount to a beneficiary.
In accepting any payment order directing payment from
the account of a Portfolio to a beneficiary, the Custodian and the
beneficiary's bank may rely solely upon any account number or similar
identifying number such Portfolio has provided to identify (i) the beneficiary,
(ii) the beneficiary's bank, or (iii) an intermediary bank to be used in
executing such payment order. A Portfolio shall be required to pay the
Custodian and the Custodian is authorized to charge the account of such
Portfolio for any funds transfer made by the Custodian at the direction of such
Portfolio utilizing any such identifying numbers even where their use may
result in a person other than the beneficiary being paid or the transfer of
funds to a bank other than the beneficiary's bank or an intermediary bank other
than that intended. In sending any payment order the Custodian may send only
the account number (or similar identifying number) and the bank identification
number provided.
When the Custodian receives a payment order to which a
Portfolio is the beneficiary it may credit the proceeds of that order solely on
the basis of the account number (or similar identifying number) contained in
such payment order.
If any payment order is transmitted through any funds
transfer system including, but not limited to the Clearing House Interbank
Payment System (CHIPS) or the automated clearing house system (ACH), a
Portfolio shall be subject to the rules of such
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funds transfer system in effect at the time that such transfer is made. Any
provisional credit granted on any ACH credit entry may be reversed by the
Custodian if final settlement does not occur.
Should the Custodian be required to pay a Portfolio any
interest in connection with a payment order (whether as the originator or the
beneficiary) such interest shall be computed based on the Rules on Interbank
Compensation then in effect in The New York Clearing House Association.
In executing any payment order the Custodian may use
the services of correspondent and intermediary banks, funds transfer systems,
telecommunication companies and other entities of similar purpose. Such
entities shall not be deemed the Custodian's agents, and the Custodian will not
be responsible for their acts or omissions with regard to any payment orders in
the absence of the exercise of reasonable care as is consistent with industry
standards and practice on the part of the Custodian.
X. EFFECTIVE PERIOD - TERMINATION AND AMENDMENT.
(a) Subject to prior termination as provided in
paragraph (d) of this Section X, this Agreement shall continue in force for two
(2) years from the date hereof and indefinitely thereafter, but only so long as
the continuance shall be specifically approved at least annually by vote of the
Trust's Board of Trustees or by vote of a majority of the outstanding voting
securities of the Trust;
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(b) This Agreement may be modified by mutual
consent;
(c) In addition to the requirements of
sub-paragraph (a) of this Section X, the terms of any continuance or
modification of the Agreement must have been approved by the vote of a majority
of those Trustees of the Trust who are not parties to such Agreement or
interested persons of any such party, cast in person at a meeting called for
the purpose of voting on such approval; and
(d) Either party hereto may, at any time, on
sixty (60) days' prior written notice to the other, terminate this Agreement,
without payment of any penalty, provided however that the Trust shall only do
so by action of its Board of Trustees, or by vote of a majority of its
outstanding voting securities. This Agreement shall terminate automatically in
the event of its assignment.
The Custodian shall receive an initial certificate from
the Trust that the Trustees of the Trust have approved the initial use of a
particular Securities System and an annual certificate reporting that the
Trustees, as required by Rule 17f-4 under the Investment Company Act of 1940,
as amended, have reviewed the use by each Portfolio of such Securities System;
further the Trust shall not amend or terminate the Agreement in contravention
of any applicable federal or state regulations, or any provision of the Trust
Instrument; and the Trust may at any time by action of its Trustees (i)
substitute another bank or trust company for the Custodian by giving notice as
described above to the Custodian, or (ii) immediately terminate this Agreement
in the event of the appointment of a conservator or receiver for the Custodian
by the
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appropriate banking authorities or upon the happening of a like event at the
direction of an appropriate regulatory agency or court of competent
jurisdiction.
Upon termination of the Agreement, the Trust shall pay
to the Custodian such compensation as may be due as of the date of such
termination and shall likewise reimburse the Custodian for its costs, expenses
and disbursements, including any costs, expenses and disbursements incurred in
performing the obligations set forth in Section XI hereof.
If this Agreement is terminated with respect to any
Portfolio, it shall nonetheless remain in effect with respect to any remaining
Portfolio.
XI. SUCCESSOR CUSTODIAN. If a successor custodian is appointed
by the Trustees of the Trust, the Custodian shall, upon termination, deliver to
such successor custodian at the office of the Custodian, duly endorsed and in
the form for transfer, all securities and other assets of each Portfolio then
held by it hereunder. The Custodian shall also deliver to such successor
custodian copies of such books and records relating to each Portfolio including
but not limited to the records required to be maintained by the Custodian in
accordance with the Investment Company Act of 1940.
If no such successor custodian is appointed, the
Custodian shall, in like manner, upon receipt of a certified copy of a vote of
the Trustees of the Trust, deliver at the office of
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the Custodian such securities, funds and other properties in accordance with
such vote.
In the event that no written order designating a
successor custodian or certified copy of a vote of the Board of Trustees shall
have been delivered to the Custodian on or before the date when such
termination shall become effective, then the Custodian shall have the right to
deliver to a bank or trust company of its own selection, having an aggregate
capital, surplus, and undivided profits, as shown by its last published report,
of not less than $25,000,000, all securities, funds and other properties held
by the Custodian and all instruments held by the Custodian relative thereto and
all other property held by it under this Agreement. Thereafter, such bank or
trust company shall be the successor of the Custodian under this Agreement.
In the event that securities, funds and other
properties remain in the possession of the Custodian after the date of
termination hereof owing to failure of the Trust to procure the certified copy
of a vote of the Board of Trustees to appoint a successor custodian, the
Custodian shall be entitled to fair compensation for its services during such
period as the Custodian retains possession of such securities, funds and other
properties and the provisions of this Agreement relating to the duties and
obligations of the Custodian shall remain in full force and effect.
XII. INTERPRETIVE AND ADDITIONAL PROVISIONS. In connection with
the operation of this Agreement, the Custodian and the Trust may from time to
time agree on such provisions interpretive of or in
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addition to the provisions of this Agreement as may in their joint opinion be
consistent with the general tenor of this Agreement. Any such interpretive or
additional provisions shall be in writing signed by both parties and shall be
annexed hereto, provided that no such interpretive or additional provisions
shall contravene any applicable federal or state regulations or any provision
of the Trust Instrument of the Trust. No interpretive or additional provisions
made as provided in the preceding sentence shall be deemed to be an amendment
to this Agreement.
XIII. TRUSTEES. All references to actions of or by Trustees of
the Trust shall require action by such Trustees acting as a Board or formally
constituted group and not individually.
XIV. APPLICABLE LAW. This Agreement shall be construed and the
provision thereof interpreted under and in accordance with the laws of New
York. The name "INTRUST Funds Trust" is the designation by the Trustees under
the Trust Instrument, dated January 26, 1996, as amended, and all persons
dealing with the Trust must look solely to the Trust property for the
enforcement of any claims against the Trust as neither any or all of the
Trustees, officers, or agents, nor any or all of the shareholders assume(s) any
personal liability for obligations entered into on behalf of the Trust.
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IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the day and year first above written.
---------------------------------
By:
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Title:
INTRUST FUNDS TRUST
By:
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Title:
32
