CUSTODY AGREEMENT Dated March 31, 2005 Between PENSON FINANCIAL SERVICES, INC. and EQUIPOINTE FUNDS
Exhibit
(g)
Dated
March 31, 2005
Between
▇▇▇▇▇▇
FINANCIAL SERVICES, INC.
and
Table
of Contents
|
Page
| |
|
APPOINTMENT
OF CUSTODIAN |
1
|
|
DEFINITIONS
|
1
|
|
DELIVERY
OF CORPORATE DOCUMENTS
|
2
|
|
POWERS
AND DUTIES OF CUSTODIAN AND DOMESTIC SUBCUSTODIAN
|
3
|
|
SUBCUSTODIANS
|
10
|
|
STANDARD
OF CARE
|
12
|
|
LIABILITY
OF THE CUSTODIAN FOR ACTIONS OF OTHERS
|
13
|
|
INDEMNIFICATION
|
14
|
|
ADVANCES
|
14
|
|
COMPENSATION
|
15
|
|
POWERS
OF ATTORNEY
|
15
|
|
TERMINATION
AND ASSIGNMENT
|
15
|
|
TERM
|
15 |
|
ADDITIONAL
FUNDS
|
16
|
|
NOTICES
|
16
|
|
MISCELLANEOUS
|
16
|
This
agreement made as of this 31st day of March, 2005, between ▇▇▇▇▇▇ Financial
Services, Inc., a registered broker-dealer with its principal place of business
located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (hereinafter
“Custodian”), and Equipointe Funds, a Delaware statutory trust (the “Trust”)
with its principal place of business located at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
WITNESSETH:
WHEREAS, the
Trust is registered as an open-end management investment company under the
Investment Company Act of 1940, as amended (the “1940 Act”), comprised of the
Fund(s) set forth on Exhibit B, as amended from time to time (each, a “Fund” and
collectively, the “Funds”), each of them a series of the Trust;
WHEREAS,
Custodian represents that it is a member of the Chicago Stock Exchange, a
national securities exchange as defined in Section 6 of the Securities Exchange
Act of 1934, as amended (the “Exchange Act”);
WHEREAS, the
Trust desires to appoint Custodian as its custodian for the custody of Assets
(as hereinafter defined) owned by each Fund which Assets are to be held in such
accounts as such Fund may establish from time to time; and
WHEREAS,
Custodian is willing to accept such appointment on the terms and conditions
hereof.
NOW,
THEREFORE, in
consideration of the mutual promises contained herein, the parties hereto,
intending to be legally bound, mutually covenant and agree as
follows:
1.
APPOINTMENT
OF CUSTODIAN
The Trust
hereby constitutes and appoints the Custodian as custodian of Assets belonging
to each Fund which have been or may be from time to time deposited with the
Custodian. Custodian accepts such appointment as a custodian and agrees to
perform the duties and responsibilities of Custodian as set forth herein on the
conditions set forth herein.
2.
DEFINITIONS
For
purposes of this Agreement, the following terms shall have the meanings so
indicated:
(a) “Security”
or “Securities” shall mean stocks, bonds, bills, rights, script, warrants,
interim certificates and all negotiable or nonnegotiable paper commonly known as
Securities and other instruments or obligations.
(b) “Assets”
shall mean Securities, monies and other property held by the Custodian for the
benefit of a Fund. All Assets held by the Custodian in any account for a Fund
may from time to time be pledged, repledged, hypothecated, re-hypothecated,
subject to the Fund's fundamental investment restriction which limits such
activities to no more than 33 1/3% of the value of the Fund's total
assets.
(c)(1) “Instructions”,
as used herein, shall mean: (i) a tested telex, a written (including, without
limitation, facsimile transmission) request, direction, instruction or
certification signed or initialed by or on behalf of a Fund by an Authorized
Person; (ii) a telephonic or other oral communication from a person the
Custodian reasonably believes to be an Authorized Person; or (iii) a
communication effected directly between an electro-mechanical or electronic
device or system (including, without limitation, computers) on behalf of a Fund.
Instructions in the form of oral communications shall be confirmed by the
appropriate Fund by tested telex or in writing in the manner set forth in clause
(i) above, but the lack of such confirmation shall in no way affect any action
taken by the Custodian in reliance upon such oral Instructions prior to the
Custodian’s receipt of such confirmation. Each Fund authorizes the Custodian to
record any and all telephonic or other oral Instructions communicated to the
Custodian.
(c)(2) “Special
Instructions”, as used herein, shall mean Instructions countersigned or
confirmed in writing by the Treasurer or any Assistant Treasurer of a Fund or
any other person designated by the Treasurer of such Fund in writing, which
countersignature or confirmation shall be included on the same instrument
containing the Instructions or on a separate instrument relating
thereto.
(c)(3) Instructions
and Special Instructions shall be delivered to the Custodian at the address
and/or telephone, facsimile transmission or telex number agreed upon from time
to time by the Custodian and each Fund.
(c)(4) Where
appropriate, Instructions and Special Instructions shall be continuing
instructions.
3.
DELIVERY
OF CORPORATE DOCUMENTS.
Each of
the parties to this Agreement represents that its execution does not violate any
of the provisions of its respective articles of incorporation, certificate of
incorporation, declaration of trust or by-laws, and all required corporate
action to authorize the execution and delivery of this Agreement has been
taken.
The Trust
has furnished the Custodian with copies, with all amendments or supplements
thereto, of the following documents:
(a) Certificate
of Trust of the Trust in effect on the date hereof;
(b) Declaration
of Trust of the Trust in effect on the date hereof;
(c) By-Laws
of the Trust in effect on the date hereof;
(d) Resolutions
of the Board of Trustees of the Trust appointing the Custodian and approving the
form of this Agreement; and
(e) The
current prospectus of each Fund and the statement of additional
information.
The Trust
shall promptly furnish the Custodian with copies of any updates, amendments or
supplements to the foregoing documents.
In
addition, the Trust has delivered or will promptly deliver to the Custodian,
copies of the Resolution(s) of its Board of Trustees and all amendments or
supplements thereto, designating certain officers or employees of the Trust who
will have continuing authority to certify to the Custodian: (a) the names,
titles, signatures and scope of authority of all persons authorized to give
Instructions or any other notice, request, direction, instruction, certificate
or instrument on behalf of the Trust, and (b) the names, titles and signatures
of those persons authorized to countersign or confirm Special Instructions on
behalf of the Trust (in both cases collectively, the “Authorized Persons” and
individually, an “Authorized Person”). Such Resolutions and certificates may be
accepted and relied upon by the Custodian as conclusive evidence of the facts
set forth therein and shall be considered to be in full force and effect until
delivery to the Custodian of a similar Resolution or certificate to the
contrary. Upon delivery of a certificate which deletes or does not include the
name(s) of a person previously authorized to give Instructions or to countersign
or confirm Special Instructions, such persons shall no longer be considered an
Authorized Person authorized to give Instructions or to countersign or confirm
Special Instructions. Unless the certificate specifically requires that the
approval of anyone else will first have been obtained, the Custodian will be
under no obligation to inquire into the right of the person giving such
Instructions or Special Instructions to do so. Notwithstanding any of the
foregoing, no Instructions or Special Instructions received by the Custodian
from the Trust will be deemed to authorize or permit any director, trustee,
officer, employee, or agent of the Trust to withdraw any of the Assets of such
Fund upon the mere receipt of such authorization, Special Instructions or
Instructions from such director, trustee, officer, employee or
agent.
2
4.
POWERS
AND DUTIES OF CUSTODIAN AND DOMESTIC SUBCUSTODIAN.
Except
for Assets held by any Subcustodian appointed pursuant to Sections 5(b), (c), or
(d) of this Agreement, the Custodian shall have and perform the powers and
duties hereinafter set forth in this Section 4. For purposes of this Section 4
all references to powers and duties of the “Custodian” shall also refer to any
Domestic Subcustodian appointed pursuant to Section 5(a).
(a) Safekeeping.
The
Custodian will keep safely the Assets of each Fund which are delivered to it
from time to time. The Custodian shall not be responsible for any property of a
Fund held or received by such Fund and not delivered to the
Custodian.
(b) Rule
17f-1 Requirements
In
accordance with the requirements of Rule 17f-1 under the 1940 Act, it is agreed
that the Assets shall be maintained in accordance with the following
provisions:
(1) The
Assets held in such custody shall at all times be individually segregated from
the securities and investments of any other person and marked in such manner as
to clearly identify them as the property of the applicable Fund, both upon
physical inspection thereof and upon examination of the books of the
Custodian.
(2) The
Custodian shall have no power or authority to assign, hypothecate, pledge or
otherwise to dispose of any such Assets, except pursuant to the direction of a
Fund and only for the account of such Fund.
(3) Such
Assets shall be subject to no lien or charge of any kind in favor of the
Custodian or any persons claiming through the Custodian.
(4) Such
Assets shall be verified by actual examination at the end of each annual and
semi-annual fiscal period by an independent public accountant retained by the
Trust, and shall be examined by such accountant at least one other time, chosen
by the accountant, during each fiscal year. A certificate of such accountant
stating that an examination of such securities has been made, and describing the
nature and extent of the examination, shall be attached to a completed Form
N-17f-1 and transmitted to the Securities and Exchange Commission (the “SEC”)
promptly after each examination
(5) Such
Assets shall, at all times, be subject to inspection by the SEC through its
employees or agents.
(6) The
provisions of sub-paragraphs (1), (2) and (3) of this paragraph shall not apply
to Assets bought for or sold to a Fund by the Custodian until the securities
have been reduced to the physical possession of the Custodian and have been paid
for by the Fund; provided, the Custodian shall take possession of such Assets at
the earliest practicable time. Nothing in this subparagraph shall be construed
to relieve the Custodian of any obligation under existing law or under the rules
of any national securities exchange.
(c) Manner
of Holding Securities.
(1) The
Custodian shall at all times hold Securities of each Fund either: (i) by
physical possession of the share certificates or other instruments representing
such Securities in registered or bearer form; or (ii) in book-entry form by a
Securities System (as hereinafter defined) in accordance with the provisions of
sub-paragraph (3) below.
(2) The
Custodian may hold registrable portfolio Securities which have been delivered to
it in physical form, by registering the same in the name of the appropriate Fund
or its nominee, or in the name of the Custodian or its nominee, for whose
actions such Fund and Custodian, respectively, shall be fully responsible. Upon
the receipt of Instructions, the Custodian shall hold such Securities in street
certificate form, so called, with or without any indication of fiduciary
capacity. However, unless it receives Instructions to the contrary, the
Custodian will register all such portfolio Securities in the name of the
Custodian’s authorized nominee. All such Securities shall be held in an account
of the Custodian containing only assets of the appropriate Fund or only assets
held by the Custodian as a fiduciary, provided that the records of the Custodian
shall indicate at all times the Fund or other customer for which such Securities
are held in such accounts and the respective interests therein.
3
(3) The
Custodian may deposit and/or maintain domestic Securities owned by a Fund in,
and each Fund hereby approves use of: (a) The Depository Trust Company; (b) The
Participants Trust Company; and (c) any book-entry system as provided in (i)
Subpart O of Treasury Circular ▇▇. ▇▇▇, ▇▇ ▇▇▇ 306.115, (ii) Subpart B of
Treasury Circular Public Debt Series ▇▇. ▇▇-▇▇, ▇▇ ▇▇▇ 350.2, or (iii) the
book-entry regulations of federal agencies substantially in the form of 31 CFR
306.115. Upon the receipt of Special Instructions, the Custodian may deposit
and/or maintain domestic Securities owned by a Fund in any other domestic
clearing agency registered with the SEC under Section 17A of the Exchange Act
(or as may otherwise be authorized by the SEC to serve in the capacity of
depository or clearing agent for the Securities or other assets of investment
companies) which acts as a Securities depository. Each of the foregoing shall be
referred to in this Agreement as a “Securities System”, and all such Securities
Systems shall be listed on the attached Appendix
A. Use of
a Securities System shall be in accordance with applicable Federal Reserve Board
and SEC rules and regulations, if any, and subject to the following
provisions:
(i) The
Custodian may deposit the Securities directly or through one or more agents or
Subcustodians which are also qualified to act as custodians for investment
companies.
(ii) The
Custodian shall deposit and/or maintain the Securities in a Securities System,
provided that such Securities are represented in an account (“Account”) of the
Custodian in the Securities System that includes only assets held by the
Custodian as a fiduciary, custodian or otherwise for customers.
(iii) The books
and records of the Custodian shall at all times identify those Securities
belonging to any one or more Funds which are maintained in a Securities
System.
(iv) The
Custodian shall pay for Securities purchased for the account of a Fund only upon
(a) receipt of advice from the Securities System that such Securities have been
transferred to the Account of the Custodian in accordance with the rules of the
Securities System, and (b) the making of an entry on the records of the
Custodian to reflect such payment and transfer for the account of such Fund. The
Custodian shall transfer Securities sold for the account of a Fund only upon (a)
receipt of advice from the Securities System that payment for such Securities
has been transferred to the Account of the Custodian in accordance with the
rules of the Securities System, and (b) the making of an entry on the records of
the Custodian to reflect such transfer and payment for the account of such Fund.
Copies of all advices from the Securities System relating to transfers of
Securities for the account of a Fund shall be maintained for such Fund by the
Custodian. The Custodian shall deliver to each Fund on the next succeeding
business day daily transaction reports that shall include each day’s
transactions in the Securities System for the account of such Fund. Such
transaction reports shall be delivered to such Fund or any agent designated by
such Fund pursuant to Instructions, by computer or in such other manner as such
Fund and Custodian may agree.
(v) The
Custodian shall, if requested by a Fund pursuant to Instructions, provide such
Fund with reports obtained by the Custodian or any Subcustodian with respect to
a Securities System’s accounting system, internal accounting control and
procedures for safeguarding Securities deposited in the Securities
System.
(vi) Upon
receipt of Special Instructions, the Custodian shall terminate the use of any
Securities System on behalf of a Fund as promptly as practicable and shall take
all actions reasonably practicable to safeguard the Securities of such Fund
maintained with such Securities System.
4
(d) Free
Delivery of Assets.
Notwithstanding
any other provision of this Agreement and except as provided in Section 3
hereof, the Custodian, upon receipt of Special Instructions, will undertake to
make free delivery of Assets, provided such Assets are on hand and available, in
connection with a Fund’s transactions and to transfer such Assets to such
broker, dealer, Subcustodian, bank, agent, Securities System or otherwise as
specified in such Special Instructions.
(e) Exchange
of Securities.
Upon
receipt of Instructions, the Custodian will exchange portfolio Securities held
by it for a Fund for other Securities or cash paid in connection with any
reorganization, recapitalization, merger, consolidation, or conversion of
convertible Securities, and will deposit any such Securities in accordance with
the terms of any reorganization or protective plan.
Without
Instructions, the Custodian is authorized to exchange Securities held by it in
temporary form for Securities in definitive form, to surrender Securities for
transfer into a name or nominee name as permitted in Section 4(c)(2), to effect
an exchange of shares in a stock split or when the par value of the stock is
changed, to sell any fractional shares, and, upon receiving payment therefor, to
surrender bonds or other Securities held by it at maturity or call.
(f) Purchases
of Assets.
(1) Securities
Purchases. In
accordance with Instructions, the Custodian shall, with respect to a purchase of
Securities, pay for such Securities out of monies held for a Fund’s account for
which the purchase was made, but only insofar as monies are available therein
for such purpose, and receive the portfolio Securities so purchased. Unless the
Custodian has received Special Instructions to the contrary, such payment will
be made only upon receipt of Securities by the Custodian, a clearing corporation
of a national securities exchange of which the Custodian is a member, or a
Securities System in accordance with the provisions of Section 4(c)(3) hereof.
Notwithstanding the foregoing, upon receipt of Instructions: (i) in connection
with a repurchase agreement, the Custodian may release funds to a Securities
System prior to the receipt of advice from the Securities System that the
Securities underlying such repurchase agreement have been transferred by
book-entry into the Account maintained with such Securities System by the
Custodian, provided that the Custodian’s instructions to the Securities System
require that the Securities System may make payment of such funds to the other
party to the repurchase agreement only upon transfer by book-entry of the
Securities underlying the repurchase agreement into such Account; (ii) in the
case of Interest Bearing Deposits, currency deposits, and other deposits,
foreign exchange transactions, futures contracts or options, pursuant to
Sections 4(h), 4(i), 4(m), and 4(n) hereof, the Custodian may make payment
therefor before receipt of an advice of transaction; and (iii) in the case of
Securities as to which payment for the Security and receipt of the instrument
evidencing the Security are under generally accepted trade practice or the terms
of the instrument representing the Security expected to take place in different
locations or through separate parties, such as commercial paper which is indexed
to foreign currency exchange rates, derivatives and similar Securities, the
Custodian may make payment for such Securities prior to delivery thereof in
accordance with such generally accepted trade practice or the terms of the
instrument representing such Security.
(2) Other
Assets Purchased. Upon
receipt of Instructions and except as otherwise provided herein, the Custodian
shall pay for and receive other Assets for the account of a Fund as provided in
Instructions.
(g) Sales
of Assets.
(1) Securities
Sold. In
accordance with Instructions, the Custodian will, with respect to a sale,
deliver or cause to be delivered the Securities thus designated as sold to the
broker or other person specified in the Instructions relating to such sale.
Unless the Custodian has received Special Instructions to the contrary, such
delivery shall be made only upon receipt of payment therefor in the form of: (a)
cash, certified check, bank cashier’s check, bank credit, or bank wire transfer;
(b) credit to the account of the Custodian with a clearing corporation of a
national securities exchange of which the Custodian is a member; or (c) credit
to the Account of the Custodian with a Securities System, in accordance with the
provisions of Section 4(c)(3) hereof. Notwithstanding the foregoing, Securities
held in physical form may be delivered and paid for in accordance with “street
delivery custom” to a broker or its clearing agent, against delivery to the
Custodian of a receipt for such Securities, provided that the Custodian shall
have taken reasonable steps to ensure prompt collection of the payment for, or
return of, such Securities by the broker or its clearing agent, and provided
further that the Custodian shall not be responsible for the selection of or the
failure or inability to perform of such broker or its clearing agent or for any
related loss arising from delivery or custody of such Securities prior to
receiving payment therefor.
5
(2) Other
Assets Sold. Upon
receipt of Instructions and except as otherwise provided herein, the Custodian
shall receive payment for and deliver other Assets for the account of a Fund as
provided in Instructions.
(h) Options.
(1) Upon
receipt of Instructions relating to the purchase of an option or sale of a
covered call option, the Custodian shall: (a) receive and retain confirmations
or other documents, if any, evidencing the purchase or writing of the option by
a Fund; (b) if the transaction involves the sale of a covered call option,
deposit and maintain in a segregated account the Securities (either physically
or by book-entry in a Securities System) subject to the covered call option
written on behalf of such Fund; and (c) pay, release and/or transfer such
Securities, cash or other Assets in accordance with any notices or other
communications evidencing the expiration, termination or exercise of such
options which are furnished to the Custodian by the Options Clearing Corporation
(the “OCC”), the securities or options exchanges on which such options were
traded, or such other organization as may be responsible for handling such
option transactions.
(2) Upon
receipt of Instructions relating to the sale of a naked option (including stock
index and commodity options), the Custodian, the appropriate Fund and the
broker-dealer shall enter into an agreement to comply with the rules of the OCC
or of any registered national securities exchange or similar organizations(s).
Pursuant to that agreement and such Fund’s Instructions, the Custodian shall:
(a) receive and retain confirmations or other documents, if any, evidencing the
writing of the option; (b) deposit and maintain in a segregated account,
Securities (either physically or by book-entry in a Securities System), cash
and/or other Assets; and (c) pay, release and/or transfer such Securities, cash
or other Assets in accordance with any such agreement and with any notices or
other communications evidencing the expiration, termination or exercise of such
option which are furnished to the Custodian by the OCC, the securities or
options exchanges on which such options were traded, or such other organization
as may be responsible for handling such option transactions. The appropriate
Fund and the broker-dealer shall be responsible for determining the quality and
quantity of assets held in any segregated account established in compliance with
applicable margin maintenance requirements and the performance of other terms of
any option contract.
(i) Futures
Contracts.
Upon
receipt of Instructions, the Custodian shall enter into a futures margin
procedural agreement among the appropriate Fund, the Custodian and the
designated futures commission merchant (a “Procedural Agreement”). Under the
Procedural Agreement the Custodian shall: (a) receive and retain confirmations,
if any, evidencing the purchase or sale of a futures contract or an option on a
futures contract by such Fund; (b) deposit and maintain in a segregated account
cash, Securities and/or other Assets designated as initial, maintenance or
variation “margin” deposits intended to secure such Fund’s performance of its
obligations under any futures contracts purchased or sold, or any options on
futures contracts written by such Fund, in accordance with the provisions of any
Procedural Agreement designed to comply with the provisions of the Commodity
Futures Trading Commission and/or any commodity exchange or contract market
(such as the Chicago Board of Trade), or any similar organization(s), regarding
such margin deposits; and (c) release Assets from and/or transfer Assets into
such margin accounts only in accordance with any such Procedural Agreements. The
appropriate Fund and such futures commission merchant shall be responsible for
determining the type and amount of Assets held in the segregated account or paid
to the broker-dealer in compliance with applicable margin maintenance
requirements and the performance of any futures contract or option on a futures
contract in accordance with its terms.
6
(j) Segregated
Accounts.
Upon
receipt of Instructions, the Custodian shall establish and maintain on its books
a segregated account or accounts for and on behalf of a Fund, into which account
or accounts may be transferred Assets of such Fund, including Securities
maintained by the Custodian in a Securities System pursuant to Paragraph (c)(3)
of this Section 4, said account or accounts to be maintained (i) for the
purposes set forth in Sections 4(h) and 4(i) and (ii) for the purpose of
compliance by such Fund with the procedures required by the SEC Investment
Company Act Release No. IC-10666 or any subsequent release or releases relating
to the maintenance of segregated accounts by registered investment companies, or
(iii) for such other purposes as may be set forth, from time to time, in Special
Instructions. The Custodian shall not be responsible for the determination of
the type or amount of Assets to be held in any segregated account referred to in
this paragraph, or for compliance by the Fund with required procedures noted in
(ii) above.
(k) Depositary
Receipts.
Upon
receipt of Instructions, the Custodian shall surrender or cause to be
surrendered Securities to the depositary used for such Securities by an issuer
of American Depositary Receipts or International Depositary Receipts
(hereinafter referred to, collectively, as “ADRs”), against a written receipt
therefor adequately describing such Securities and written evidence satisfactory
to the organization surrendering the same that the depositary has acknowledged
receipt of instructions to issue ADRs with respect to such Securities in the
name of the Custodian or a nominee of the Custodian, for delivery in accordance
with such instructions.
Upon
receipt of Instructions, the Custodian shall surrender or cause to be
surrendered ADRs to the issuer thereof, against a written receipt therefor
adequately describing the ADRs surrendered and written evidence satisfactory to
the organization surrendering the same that the issuer of the ADRs has
acknowledged receipt of instructions to cause its depository to deliver the
Securities underlying such ADRs in accordance with such
instructions.
(l) Corporate
Actions, Put Bonds, Called Bonds, etc.
Upon
receipt of Instructions, the Custodian shall: (a) deliver warrants, puts, calls,
rights or similar Securities to the issuer or trustee thereof (or to the agent
of such issuer or trustee) for the purpose of exercise or sale, provided that
the new Securities, cash or other Assets, if any, acquired as a result of such
actions are to be delivered to the Custodian; and (b) deposit Securities upon
invitations for tenders thereof, provided that the consideration for such
Securities is to be paid or delivered to the Custodian, or the tendered
Securities are to be returned to the Custodian.
Notwithstanding
any provision of this Agreement to the contrary, the Custodian shall take all
necessary action, unless otherwise directed to the contrary in Instructions, to
comply with the terms of all mandatory or compulsory exchanges, calls, tenders,
redemptions, or similar rights of security ownership, and shall notify the
appropriate Fund of such action in writing by facsimile transmission or in such
other manner as such Fund and Custodian may agree in writing.
The Fund
agrees that if it gives an Instruction for the performance of an act on the last
permissible date of a period established by any optional offer or on the last
permissible date for the performance of such act, the Fund shall hold the Bank
harmless from any adverse consequences in connection with acting upon or failing
to act upon such Instructions.
(m) Interest
Bearing Deposits.
Upon
receipt of Instructions directing the Custodian to purchase interest bearing
fixed term and call deposits (hereinafter referred to, collectively, as
“Interest Bearing Deposits”) for the account of a Fund, the Custodian shall
purchase such Interest Bearing Deposits in the name of such Fund with such banks
or trust companies (hereinafter referred to as “Banking Institutions”), and in
such amounts as such Fund may direct pursuant to Instructions. Such Interest
Bearing Deposits may be denominated in U.S. dollars or other currencies, as such
Fund may determine and direct pursuant to Instructions. With respect to Interest
Bearing Deposits (a) the Custodian shall be responsible for the collection of
income and the transmission of cash to and from such accounts; and (b) the
Custodian shall have no duty with respect to the selection of the Banking
Institution or for the failure of such Banking Institution to pay upon
demand.
7
(n) Foreign
Exchange Transactions.
(l) Each Fund
hereby appoints the Custodian as its agent in the execution of all currency
exchange transactions. The Custodian agrees to provide exchange rate and U.S.
Dollar information, in writing, to the Funds. Such information shall be supplied
by the Custodian at least by the business day prior to the value date of the
foreign exchange transaction, provided that the Custodian receives the request
for such information at least two business days prior to the value date of the
transaction.
(2) Upon
receipt of Instructions, the Custodian shall settle foreign exchange contracts
or options to purchase and sell foreign currencies for spot and future delivery
on behalf of and for the account of a Fund with such currency brokers or Banking
Institutions as such Fund may determine and direct pursuant to Instructions. If,
in its Instructions, a Fund does not direct the Custodian to utilize a
particular currency broker or Banking Institution, the Custodian is authorized
to select such currency broker or Banking Institution as it deems appropriate to
execute the Fund’s foreign currency transaction.
(3) Each Fund
accepts full responsibility for its use of third party foreign exchange brokers
and for execution of said foreign exchange contracts and understands that the
Fund shall be responsible for any and all costs and interest charges which may
be incurred as a result of the failure or delay of its third party broker to
deliver foreign exchange. The Custodian shall have no responsibility or
liability with respect to the selection of the currency brokers or Banking
Institutions with which a Fund deals or the performance of such brokers or
Banking Institutions.
(4) Notwithstanding
anything to the contrary contained herein, upon receipt of Instructions the
Custodian may, in connection with a foreign exchange contract, make free
outgoing payments of cash in the form of U.S. Dollars or foreign currency prior
to receipt of confirmation of such foreign exchange contract or confirmation
that the countervalue currency completing such contract has been delivered or
received.
(5) The
Custodian shall not be obligated to enter into foreign exchange transactions as
principal. However, if the Custodian has made available to a Fund its services
as a principal in foreign exchange transactions and subject to any separate
agreement between the parties relating to such transactions, the Custodian shall
enter into foreign exchange contracts or options to purchase and sell foreign
currencies for spot and future delivery on behalf of and for the account of the
Fund, with the Custodian as principal.
(o) Stock
Dividends, Rights, Etc.
The
Custodian shall receive and collect all stock dividends, rights, and other items
of like nature and, upon receipt of Instructions, take action with respect to
the same as directed in such Instructions.
(p) Routine
Dealings.
The
Custodian will, in general, attend to all routine and mechanical matters in
accordance with industry standards in connection with the sale, exchange,
substitution, purchase, transfer, or other dealings with Securities or other
property of each Fund except as may be otherwise provided in this Agreement or
directed from time to time by Instructions from any particular Fund. The
Custodian may also make payments to itself or others from the Assets for
disbursements and out-of-pocket expenses incidental to handling Securities or
other similar items relating to its duties under this Agreement, provided that
all such payments shall be accounted for to the appropriate Fund.
8
(q) Collections.
The
Custodian shall (a) collect amounts due and payable to each Fund with respect to
portfolio Securities and other Assets; (b) promptly credit to the account of
each Fund all income and other payments relating to portfolio Securities and
other Assets held by the Custodian hereunder upon Custodian’s receipt of such
income or payments or as otherwise agreed in writing by the Custodian and any
particular Fund; (c) promptly endorse and deliver any instruments required to
effect such collection; and (d) promptly execute ownership and other
certificates and affidavits for all federal, state, local and foreign tax
purposes in connection with receipt of income or other payments with respect to
portfolio Securities and other Assets, or in connection with the transfer of
such Securities or other Assets; provided, however, that with respect to
portfolio Securities registered in so-called street name, or physical Securities
with variable interest rates, the Custodian shall use its best efforts to
collect amounts due and payable to any such Fund. The Custodian shall notify a
Fund in writing by facsimile transmission or in such other manner as such Fund
and Custodian may agree in writing if any amount payable with respect to
portfolio Securities or other Assets is not received by the Custodian when due.
The Custodian shall not be responsible for the collection of amounts due and
payable with respect to portfolio Securities or other Assets that are in
default.
(r) Dividends,
Distributions and Redemptions.
To enable
each Fund to pay dividends or other distributions to shareholders of each such
Fund and to make payment to shareholders who have requested repurchase or
redemption of their shares of each such Fund (collectively, the “Shares”), the
Custodian shall release cash or Securities insofar as available. In the case of
cash, the Custodian shall, upon the receipt of Instructions, transfer such funds
by check or wire transfer to any account at any bank or trust company designated
by each such Fund in such Instructions. In the case of Securities, the Custodian
shall, upon the receipt of Special Instructions, make such transfer to any
entity or account designated by each such Fund in such Special
Instructions.
(s) Proceeds
from Shares Sold.
The
Custodian shall receive funds representing cash payments received for shares
issued or sold from time to time by each Fund, and shall credit such funds to
the account of the appropriate Fund. The Custodian shall notify the appropriate
Fund of Custodian’s receipt of cash in payment for shares issued by such Fund by
facsimile transmission or in such other manner as such Fund and the Custodian
shall agree. Upon receipt of Instructions, the Custodian shall: (a) deliver all
federal funds received by the Custodian in payment for shares as may be set
forth in such Instructions and at a time agreed upon between the Custodian and
such Fund; and (b) make federal funds available to a Fund as of specified times
agreed upon from time to time by such Fund and the Custodian, in the amount of
checks received in payment for shares which are deposited to the accounts of
such Fund.
(t) Proxies
and Notices; Compliance with the Shareholders Communication Act of
1985.
The
Custodian shall deliver or cause to be delivered to the appropriate Fund all
forms of proxies, all notices of meetings, and any other notices or
announcements affecting or relating to Securities owned by such Fund that are
received by the Custodian, any Subcustodian, or any nominee of either of them,
and, upon receipt of Instructions, the Custodian shall execute and deliver, or
cause such Subcustodian or nominee to execute and deliver, such proxies or other
authorizations as may be required. Except as directed pursuant to Instructions,
neither the Custodian nor any Subcustodian or nominee shall vote upon any such
Securities, or execute any proxy to vote thereon, or give any consent or take
any other action with respect thereto.
The
Custodian will not release the identity of any Fund to an issuer which requests
such information pursuant to the Shareholder Communications Act of 1985 for the
specific purpose of direct communications between such issuer and any such Fund
unless a particular Fund directs the Custodian otherwise in
writing.
(u) Books
and Records.
The
Custodian shall maintain such records relating to its activities under this
Agreement as are required to be maintained by Rule 31a-1 under the 1940 Act and
to preserve them for the periods prescribed in Rule 31a-2 under the 1940 Act.
These records shall be open for inspection by duly authorized officers,
employees or agents (including independent public accountants) of the
appropriate Fund during normal business hours of the Custodian.
9
The
Custodian shall provide accountings relating to its activities under this
Agreement as shall be agreed upon by each Fund and the Custodian.
(v) Opinion
of Fund’s Independent Certified Public Accountants.
The
Custodian shall take all reasonable action as each Fund may request to obtain
from year to year favorable opinions from each such Fund’s independent certified
public accountants with respect to the Custodian’s activities hereunder and in
connection with the preparation of each such Fund’s periodic reports to the SEC
and with respect to any other requirements of the SEC.
(w) Reports
by Independent Certified Public Accountants.
At the
request of a Fund, the Custodian shall deliver to such Fund a written report
prepared by the Custodian’s independent certified public accountants with
respect to the services provided by the Custodian under this Agreement,
including, without limitation, the Custodian’s accounting system, internal
accounting control and procedures for safeguarding cash, Securities and other
Assets, including cash, Securities and other Assets deposited and/or maintained
in a Securities System or with a Subcustodian. Such report shall be of
sufficient scope and in sufficient detail as may reasonably be required by such
Fund as it relates to the services provided to the Fund and as may reasonably be
obtained by the Custodian; however, such request shall not necessitate that the
Custodian subject its procedures and processes to a more comprehensive review or
reporting than what otherwise might be required under current standards. In
particular, such report shall not require more than what is required to be
submitted and made publicly available under regulatory requirements governing
the Custodian’s operations.
(x) Bills
and Other Disbursements.
Upon
receipt of Instructions, the Custodian shall pay, or cause to be paid, all
bills, statements, or other obligations of a Fund.
5.
SUBCUSTODIANS.
From time
to time, in accordance with the relevant provisions of this Agreement, the
Custodian may appoint one or more Domestic Subcustodians, Foreign Subcustodians,
Special Subcustodians, or Interim Subcustodians (as each are hereinafter
defined) to act on behalf of any one or more Funds. A Domestic Subcustodian, in
accordance with the provisions of this Agreement, may also appoint a Foreign
Subcustodian, Special Subcustodian, or Interim Subcustodian to act on behalf of
any one or more Funds. For purposes of this Agreement, all Domestic
Subcustodians, Foreign Subcustodians, Special Subcustodians and Interim
Subcustodians shall be referred to collectively as “Subcustodians”.
(a) Domestic
Subcustodians.
The
Custodian may, at any time and from time to time, appoint any bank as defined in
Section 2(a)(5) of the 1940 Act or any trust company or other entity, any of
which meet the requirements of a custodian under Section 17(f) of the 1940 Act
and the rules and regulations thereunder, to act for the Custodian on behalf of
any one or more Funds as a subcustodian for purposes of holding Assets of such
Fund(s) and performing other functions of the Custodian within the United States
(a “Domestic Subcustodian”). Each Fund shall approve in writing the appointment
of the proposed Domestic Subcustodian; and the Custodian’s appointment of any
such Domestic Subcustodian shall not be effective without such prior written
approval of the Fund(s). Each such duly approved Domestic Subcustodian shall be
listed on Appendix
A attached
hereto, as it may be amended, from time to time.
10
(b) Foreign
Subcustodians.
The
Custodian may at any time appoint, or cause a Domestic Subcustodian to appoint,
any bank, trust company or other entity meeting the requirements of an “eligible
foreign custodian” under Section 17(f) of the 1940 Act and the rules and
regulations thereunder to act for the Custodian on behalf of any one or more
Funds as a subcustodian or sub-subcustodian (if appointed by a Domestic
Subcustodian) for purposes of holding Assets of the Fund(s) and performing other
functions of the Custodian in countries other than the United States of America
(hereinafter referred to as a “Foreign Subcustodian” in the context of either a
subcustodian or a sub-subcustodian); provided that the Custodian shall have
obtained written confirmation from each Fund of the approval of the Board of
Trustees or other governing body of each such Fund (which approval may be
withheld in the sole discretion of such Board of Trustees or other governing
body or entity) with respect to (i) the identity of any proposed Foreign
Subcustodian (including branch designation), (ii) the country or countries in
which, and the securities depositories or clearing agencies (hereinafter
“Securities Depositories and Clearing Agencies”), if any, through which, the
Custodian or any proposed Foreign Subcustodian is authorized to hold Securities
and other Assets of each such Fund, and (iii) the form and terms of the
subcustodian agreement to be entered into with such proposed Foreign
Subcustodian. Each such duly approved Foreign Subcustodian and the countries
where and the Securities Depositories and Clearing Agencies through which they
may hold Securities and other Assets of the Fund(s) shall be listed on
Appendix
A attached
hereto, as it may be amended, from time to time. Each Fund shall be responsible
for informing the Custodian sufficiently in advance of a proposed investment
which is to be held in a country in which no Foreign Subcustodian is authorized
to act, in order that there shall be sufficient time for the Custodian, or any
Domestic Subcustodian, to effect the appropriate arrangements with a proposed
Foreign Subcustodian, including obtaining approval as provided in this Section
5(b). In connection with the appointment of any Foreign Subcustodian, the
Custodian shall, or shall cause the Domestic Subcustodian to, enter into a
subcustodian agreement with the Foreign Subcustodian in form and substance
approved by each such Fund. The Custodian shall not consent to the amendment of,
and shall cause any Domestic Subcustodian not to consent to the amendment of,
any agreement entered into with a Foreign Subcustodian, which materially affects
any Fund’s rights under such agreement, except upon prior written approval of
such Fund pursuant to Special Instructions.
(c) Interim
Subcustodians.
Notwithstanding
the foregoing, in the event that a Fund shall invest in an Asset to be held in a
country in which no Foreign Subcustodian is authorized to act, the Custodian
shall notify such Fund in writing by facsimile transmission or in such other
manner as such Fund and the Custodian shall agree in writing of the
unavailability of an approved Foreign Subcustodian in such country; and upon the
receipt of Special Instructions from such Fund, the Custodian shall, or shall
cause its Domestic Subcustodian to, appoint or approve an entity (referred to
herein as an “Interim Subcustodian”) designated in such Special Instructions to
hold such Security or other Asset.
(d) Special
Subcustodians.
Upon
receipt of Special Instructions, the Custodian shall, on behalf of a Fund,
appoint one or more banks, trust companies or other entities designated in such
Special Instructions to act for the Custodian on behalf of such Fund as a
subcustodian for purposes of: (i) effecting third-party repurchase transactions
with banks, brokers, dealers or other entities through the use of a common
custodian or subcustodian; (ii) providing depository and clearing agency
services with respect to certain variable rate demand note Securities, (iii)
providing depository and clearing agency services with respect to dollar
denominated Securities, and (iv) effecting any other transactions designated by
such Fund in such Special Instructions. Each such designated subcustodian
(hereinafter referred to as a “Special Subcustodian”) shall be listed on
Appendix
A attached
hereto, as it may be amended from time to time. In connection with the
appointment of any Special Subcustodian, the Custodian shall enter into a
subcustodian agreement with the Special Subcustodian in form and substance
approved by the appropriate Fund in Special Instructions. The Custodian shall
not amend any subcustodian agreement entered into with a Special Subcustodian,
or waive any rights under such agreement, except upon prior approval pursuant to
Special Instructions.
(e) Termination
of a Subcustodian.
The
Custodian may, at any time in its discretion upon notification to the
appropriate Fund(s), terminate any Subcustodian of such Fund(s) in accordance
with the termination provisions under the applicable subcustodian agreement, and
upon the receipt of Special Instructions, the Custodian will terminate any
Subcustodian in accordance with the termination provisions under the applicable
subcustodian agreement.
11
(f) Certification
Regarding Foreign Subcustodians.
Upon
request of a Fund, the Custodian shall deliver to such Fund a certificate
stating: (i) the identity of each Foreign Subcustodian then acting on behalf of
the Custodian; (ii) the countries in which and the Securities Depositories and
Clearing Agencies through which each such Foreign Subcustodian is then holding
cash, Securities and other Assets of such Fund; and (iii) such other information
as may be requested by such Fund, and as the Custodian shall be reasonably able
to obtain, to evidence compliance with rules and regulations under the 1940
Act.
6.
STANDARD
OF CARE.
(a) General
Standard of Care.
The
Custodian shall be liable to a Fund for all losses, damages and reasonable costs
and expenses suffered or incurred by such Fund resulting from the negligence or
willful misfeasance of the Custodian; provided, however, in no event shall the
Custodian be liable for special, indirect or consequential damages arising under
or in connection with this Agreement.
(b) Actions
Prohibited by Applicable Law, Events Beyond Custodian’s Control, Sovereign Risk,
etc.
In no
event shall the Custodian or any Domestic Subcustodian incur liability hereunder
(i) if the Custodian or any Subcustodian or Securities System, or any
subcustodian, Securities System, Securities Depository or Clearing Agency
utilized by the Custodian or any such Subcustodian, or any nominee of the
Custodian or any Subcustodian (individually, a “Person”) is prevented, forbidden
or delayed from performing, or omits to perform, any act or thing which this
Agreement provides shall be performed or omitted to be performed, by reason of:
(a) any provision of any present or future law or regulation or order of the
United States of America, or any state thereof, or of any foreign country, or
political subdivision thereof or of any court of competent jurisdiction (and
neither the Custodian nor any other Person shall be obligated to take any action
contrary thereto); or (b) any event beyond the control of the Custodian or other
Person such as armed conflict, riots, strikes, lockouts, labor disputes,
equipment or transmission failures, natural disasters, or failure of the mails,
transportation, communications or power supply; or (ii) for any loss, damage,
cost or expense resulting from “Sovereign Risk.” A “Sovereign Risk” shall mean
nationalization, expropriation, currency devaluation, revaluation or
fluctuation, confiscation, seizure, cancellation, destruction or similar action
by any governmental authority, de facto or de jure; or enactment, promulgation,
imposition or enforcement by any such governmental authority of currency
restrictions, exchange controls, taxes, levies or other charges affecting a
Fund’s Assets; or acts of armed conflict, terrorism, insurrection or revolution;
or any other act or event beyond the Custodian’s or such other Person’s
control.
(c) Liability
for Past Records.
Neither
the Custodian nor any Domestic Subcustodian shall have any liability in respect
of any loss, damage or expense suffered by a Fund, insofar as such loss, damage
or expense arises from the performance of the Custodian or any Domestic
Subcustodian in reliance upon records that were maintained for such Fund by
entities other than the Custodian or any Domestic Subcustodian prior to the
Custodian’s employment hereunder.
(d) Advice
of Counsel.
The
Custodian and all Domestic Subcustodians shall be entitled to receive and act
upon advice of counsel of its own choosing on all matters. The Custodian and all
Domestic Subcustodians shall be without liability for any actions taken or
omitted in good faith pursuant to the advice of counsel.
12
(e) Advice
of the Fund and Others.
The
Custodian and any Domestic Subcustodian may rely upon the advice of any Fund and
upon statements of such Fund’s accountants and other persons believed by it in
good faith to be expert in matters upon which they are consulted, and neither
the Custodian nor any Domestic Subcustodian shall be liable for any actions
taken or omitted, in good faith, pursuant to such advice or
statements.
(f) Instructions
Appearing to be Genuine.
The
Custodian and all Domestic Subcustodians shall be fully protected and
indemnified in acting as a custodian hereunder upon any Resolutions of the Board
of Directors or Trustees, Instructions, Special Instructions, advice, notice,
request, consent, certificate, instrument or paper appearing to it to be genuine
and to have been properly executed and shall, unless otherwise specifically
provided herein, be entitled to receive as conclusive proof of any fact or
matter required to be ascertained from any Fund hereunder a certificate signed
by any officer of such Fund authorized to countersign or confirm Special
Instructions.
(g) Exceptions
from Liability.
Without
limiting the generality of any other provisions hereof, neither the Custodian
nor any Domestic Subcustodian shall be under any duty or obligation to inquire
into, nor be liable for:
(1) the
validity of the issue of any Securities purchased by or for any Fund, the
legality of the purchase thereof or evidence of ownership required to be
received by any such Fund, or the propriety of the decision to purchase or
amount paid therefor;
(2) the
legality of the sale of any Securities by or for any Fund, or the propriety of
the amount for which the same were sold; or
(3) any other
expenditures, encumbrances of Securities, borrowings or similar actions with
respect to any Fund’s Assets;
and may,
until notified to the contrary, presume that all Instructions or Special
Instructions received by it are not in conflict with or in any way contrary to
any provisions of any such Fund’s Declaration of Trust, Partnership Agreement,
Articles of Incorporation or By-Laws or votes or proceedings of the
shareholders, trustees, partners or directors of any such Fund, or any such
Fund’s currently effective Registration Statement on file with the
SEC.
7.
LIABILITY
OF THE CUSTODIAN FOR ACTIONS OF OTHERS.
(a) Domestic
Subcustodians
The
Custodian shall be liable for the acts or omissions of any Domestic Subcustodian
to the same extent as if such actions or omissions were performed by the
Custodian itself.
(b) Liability
for Acts and Omissions of Foreign Subcustodians.
The
Custodian shall be liable to a Fund for any loss or damage to such Fund caused
by or resulting from the acts or omissions of any Foreign Subcustodian to the
extent that, under the terms set forth in the subcustodian agreement between the
Custodian or a Domestic Subcustodian and such Foreign Subcustodian, the Foreign
Subcustodian has failed to perform in accordance with the standard of conduct
imposed under such subcustodian agreement and the Custodian or Domestic
Subcustodian recovers from the Foreign Subcustodian under the applicable
subcustodian agreement.
13
(c) Securities
Systems, Interim Subcustodians, Special Subcustodians, Securities Depositories
and Clearing Agencies.
The
Custodian shall not be liable to any Fund for any loss, damage or expense
suffered or incurred by such Fund resulting from or occasioned by the actions or
omissions of a Securities System, Interim Subcustodian, Special Subcustodian, or
Securities Depository and Clearing Agency unless such loss, damage or expense is
caused by, or results from, the negligence or willful misfeasance of the
Custodian.
(d) Defaults
or Insolvency’s of Brokers, Banks, Etc.
The
Custodian shall not be liable for any loss, damage or expense suffered or
incurred by any Fund resulting from or occasioned by the actions, omissions,
neglects, defaults or insolvency of any broker, bank, trust company or any other
person with whom the Custodian may deal (other than any of such entities acting
as a Subcustodian, Securities System or Securities Depository and Clearing
Agency, for whose actions the liability of the Custodian is set out elsewhere in
this Agreement) unless such loss, damage or expense is caused by, or results
from, the negligence or willful misfeasance of the Custodian.
(e) Reimbursement
of Expenses.
Each Fund
agrees to reimburse the Custodian for all out-of-pocket expenses incurred by the
Custodian in connection with this Agreement, but excluding salaries and usual
overhead expenses, and expenses occasioned by or resulting from the negligence
or willful misconduct of the Custodian.
8.
INDEMNIFICATION.
(a) Indemnification
by Fund.
Subject
to the limitations set forth in this Agreement, each Fund agrees to indemnify
and hold harmless the Custodian and its nominees from all losses, damages and
expenses (including reasonable attorneys’ fees) suffered or incurred by the
Custodian or its nominee caused by or arising from actions taken by the
Custodian, its employees or agents in the performance of its duties and
obligations under this Agreement, including, but not limited to, any
indemnification obligations undertaken by the Custodian under any relevant
subcustodian agreement; provided, however, that such indemnity shall not apply
to the extent the Custodian is liable under Sections 6 or 7 hereof.
If any
Fund requires the Custodian to take any action with respect to Securities, which
action involves the payment of money or which may, in the opinion of the
Custodian, result in the Custodian or its nominee assigned to such Fund being
liable for the payment of money or incurring liability of some other form, such
Fund, as a prerequisite to requiring the Custodian to take such action, shall
provide indemnity to the Custodian in an amount and form satisfactory to
it.
(b) Indemnification
by Custodian.
Subject
to the limitations set forth in this Agreement and in addition to the
obligations provided in Sections 6 and 7, the Custodian agrees to indemnify and
hold harmless each Fund from all losses, damages and expenses suffered or
incurred by each such Fund caused by the negligence or willful misfeasance of
the Custodian.
9.
ADVANCES.
In the
event that, pursuant to Instructions, the Custodian or any Subcustodian,
Securities System, or Securities Depository or Clearing Agency acting either
directly or indirectly under agreement with the Custodian (each of which for
purposes of this Section 9 shall be referred to as “Custodian”), makes any
payment or transfer of funds on behalf of any Fund as to which there would be,
at the close of business on the date of such payment or transfer, insufficient
funds held by the Custodian on behalf of any such Fund, the Custodian may, in
its discretion without further Instructions, provide an advance (“Advance”) to
any such Fund in an amount sufficient to allow the completion of the transaction
by reason of which such payment or transfer of funds is to be made. In addition,
in the event the Custodian is directed by Instructions to make any payment or
transfer of funds on behalf of any Fund as to which it is subsequently
determined that such Fund has overdrawn its cash account with the Custodian as
of the close of business on the date of such payment or transfer, said overdraft
shall constitute an Advance. Any Advance shall be payable by the Fund on behalf
of which the Advance was made on demand by Custodian, unless otherwise agreed by
such Fund and the Custodian, and shall accrue interest from the date of the
Advance to the date of payment by such Fund to the Custodian at a rate agreed
upon in writing from time to time by the Custodian and such Fund. It is
understood that any transaction in respect of which the Custodian shall have
made an Advance, including but not limited to a foreign exchange contract or
transaction in respect of which the Custodian is not acting as a principal, is
for the account of and at the risk of the Fund on behalf of which the Advance
was made, and not, by reason of such Advance, deemed to be a transaction
undertaken by the Custodian for its own account and risk. The Custodian and each
of the Funds which are parties to this Agreement acknowledge that the purpose of
Advances is to finance temporarily the purchase or sale of Securities for prompt
delivery in accordance with the settlement terms of such transactions or to meet
emergency expenses not reasonably foreseeable by a Fund. The Custodian shall
promptly notify the appropriate Fund of any Advance. Such notification shall be
sent by facsimile transmission or in such other manner as such Fund and the
Custodian may agree.
14
10. COMPENSATION.
Each Fund
will pay to the Custodian such compensation as is agreed to in writing by the
Custodian and each such Fund from time to time. Such compensation, together with
all amounts for which the Custodian is to be reimbursed in accordance with
Section 7(e), shall be billed to each such Fund and paid in cash to the
Custodian.
11.
POWERS
OF ATTORNEY.
Upon
request, each Fund shall deliver to the Custodian such proxies, powers of
attorney or other instruments as may be reasonable and necessary or desirable in
connection with the performance by the Custodian or any Subcustodian of their
respective obligations under this Agreement or any applicable subcustodian
agreement.
12.
TERMINATION
AND ASSIGNMENT.
Any Fund
or the Custodian may terminate this Agreement by notice in writing, delivered or
mailed, postage prepaid (certified mail, return receipt requested) to the other
not less than 90 days prior to the date upon which such termination shall take
effect. Upon termination of this Agreement, the appropriate Fund shall pay to
the Custodian such fees as may be due the Custodian hereunder as well as its
reimbursable disbursements, costs and expenses paid or incurred. Upon
termination of this Agreement, the Custodian shall deliver, at the terminating
party’s expense, all Assets held by it hereunder to the appropriate Fund or as
otherwise designated by such Fund by Special Instructions. Upon such delivery,
the Custodian shall have no further obligations or liabilities under this
Agreement except as to the final resolution of matters relating to activity
occurring prior to the effective date of termination.
This
Agreement may not be assigned by the Custodian or any Fund without the
respective consent of the other, duly authorized by a resolution by its Board of
Directors or Trustees.
13.
TERM.
Subject
to approval by a majority of the Board of Trustees of the Trust, this Agreement
shall begin for each Fund as of the date of execution of Appendix
B and
shall continue in effect with respect to each Fund (and any subsequent Funds
added pursuant to Appendix
B during
the term of this Agreement) for one year from the date of this Agreement and
thereafter for successive periods of one year, subject to the provisions for
termination in Section 12 and all of the other terms and conditions hereof if
such continuation shall be ratified at least annually by the vote of a majority
of the Board of Trustees of the Trust. If a Fund is added after the first
approval by the Trustees as described above, this Agreement will be effective as
to that Fund upon execution of an amended Appendix
B and will
continue in effect until the next annual approval of this Agreement by the
Trustees and thereafter for successive periods of one year, subject to approval
as described above.
15
14.
ADDITIONAL
FUNDS.
An
additional Fund or Funds may become a party to this Agreement after the date
hereof by an instrument in writing to such effect signed by such Fund or Funds
and the Custodian. If this Agreement is terminated as to one or more of the
Funds (but less than all of the Funds) or if an additional Fund or Funds shall
become a party to this Agreement, there shall be delivered to each party an
Appendix
B or an
amended Appendix
B, signed
by each of the additional Funds (if any) and each of the remaining Funds as well
as the Custodian, deleting or adding such Fund or Funds, as the case may be. The
termination of this Agreement as to less than all of the Funds shall not affect
the obligations of the Custodian and the remaining Funds hereunder as set forth
on the signature page hereto and in Appendix
B as
revised from time to time.
15. NOTICES.
As to
each Fund, notices, requests, instructions and other writings delivered to
Equipointe Funds, Attn: President, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, postage prepaid, or to such other address as any
particular Fund may have designated to the Custodian in writing, shall be deemed
to have been properly delivered or given to a Fund.
Notices,
requests, instructions and other writings delivered to ▇▇▇▇▇▇ Financial
Services, Inc., Attn: General Counsel, at its office at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, postage prepaid, or to such other addresses as
the Custodian may have designated to each Fund in writing, shall be deemed to
have been properly delivered or given to the Custodian hereunder; provided,
however, that procedures for the delivery of Instructions and Special
Instructions shall be governed by Section 2(c) hereof.
16.
MISCELLANEOUS.
(a) This
Agreement is executed and delivered in the State of Arizona and shall be
governed by the laws of such state.
(b) All of
the terms and provisions of this Agreement shall be binding upon, and inure to
the benefit of, and be enforceable by the respective successors and assigns of
the parties hereto.
(c) No
provisions of this Agreement may be amended, modified or waived, in any manner
except in writing, properly executed by both parties hereto; provided, however,
Appendix
A may be
amended from time to time as Domestic Subcustodians, Foreign Subcustodians,
Special Subcustodians, and Securities Depositories and Clearing Agencies are
approved or terminated according to the terms of this Agreement.
(d) The
captions in this Agreement are included for convenience of reference only, and
in no way define or delimit any of the provisions hereof or otherwise affect
their construction or effect.
(e) This
Agreement shall be effective as of the date of execution hereof.
(f) This
Agreement may be executed simultaneously in two or more counterparts, each of
which will be deemed an original, but all of which together will constitute one
and the same instrument.
(g) The
following terms are defined terms within the meaning of this Agreement, and the
definitions thereof are found in the following sections of the
Agreement:
|
Term |
Section |
|
Account |
4(c)(3)(ii) |
|
ADRs |
4(k) |
|
Advance |
9 |
|
Assets |
2(b) |
|
Authorized
Person |
3 |
|
Banking
Institutions |
4(m) |
|
Custodian |
Introduction |
|
Domestic
Subcustodian |
5(a) |
|
Exchange
Act |
Recitals |
|
Foreign
Subcustodian |
5(b) |
|
Fund
or Funds |
Recitals |
|
Instructions |
2(c)(l) |
|
Interim
Subcustodian |
5(c) |
|
Interest
Bearing Deposits |
4(m) |
|
OCC |
4(h)(1) |
|
Person |
6(b) |
|
Procedural
Agreement |
4(i) |
|
SEC |
4(c)(1) |
|
Security
or Securities |
2(a) |
|
Securities
Depositories and Clearing Agencies |
5(b) |
|
Securities
System |
4(c)(3) |
|
Shares |
4(r) |
|
Sovereign
Risk |
6(b) |
|
Special
Instructions |
2(c)(2) |
|
Special
Subcustodian |
5(d) |
|
Subcustodians |
5 |
|
Trust |
Introduction |
|
1940
Act |
Recitals |
16
(h) If any
part, term or provision of this Agreement is held to be illegal, in conflict
with any law or otherwise invalid by any court of competent jurisdiction, the
remaining portion or portions shall be considered severable and shall not be
affected, and the rights and obligations of the parties shall be construed and
enforced as if this Agreement did not contain the particular part, term or
provision held to be illegal or invalid.
(i) This
Agreement constitutes the entire understanding and agreement of the parties
hereto with respect to the subject matter hereof, and accordingly supersedes, as
of the effective date of this Agreement, any custodian agreement heretofore in
effect between the Fund and the Custodian.
17
IN
WITNESS WHEREOF, the
parties hereto have caused this Custody Agreement to be executed by their
respective duly authorized officers.
|
Attest: /s/
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ |
By: /s/
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |
▇▇▇▇▇
▇▇▇▇▇▇▇▇, Secretary |
Name: ▇▇▇▇
▇. ▇▇▇▇▇▇▇▇ | |
|
Title: President
and Chief Executive Officer | ||
|
Date: April
1, 2005 | ||
|
▇▇▇▇▇▇
FINANCIAL SERVICES, INC. | ||
|
Attest: /s/
▇▇▇▇▇ ▇▇▇▇▇ |
By: /s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ | |
▇▇▇▇▇
▇▇▇▇▇▇, Corporate Executive Secretary |
Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇▇ | |
|
Title: Executive
Vice President | ||
|
Date: April
4, 2005 |
18
APPENDIX
A
DOMESTIC
SUBCUSTODIANS:
SECURITIES
SYSTEMS:
Federal
Book Entry
Depository
Trust Company
SPECIAL
SUBCUSTODIANS:
|
SECURITIES
DEPOSITORIES |
||
|
COUNTRIES |
FOREIGN
SUBCUSTODIANS |
CLEARING
AGENCIES |
|
▇▇▇▇▇▇
FINANCIAL SERVICES, INC. | ||
|
By: /s/
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ |
By: /s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ | |
|
Name: ▇▇▇▇
▇. ▇▇▇▇▇▇▇▇ |
Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇▇ | |
|
Title: President
and Chief Executive Officer |
Title: Executive
Vice President | |
|
Date: April
1, 2005 |
Date: April
1, ▇▇▇▇ | |
▇-▇
▇▇▇▇▇▇▇▇
▇
The
following open-end management investment companies (“Funds”) are hereby made
parties to the Custody Agreement dated March 31, 2005, with ▇▇▇▇▇▇ Financial
Services, Inc. (“Custodian”) and Equipointe Funds and agree to be bound by all
the terms and conditions contained in said Agreement:
EQUIPOINTE
GROWTH AND INCOME FUND
EQUIPOINTE
ACTION FUND
|
Attest: /s/
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ |
By: /s/
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |
▇▇▇▇▇
▇▇▇▇▇▇▇▇, Secretary |
Name: ▇▇▇▇
▇. ▇▇▇▇▇▇▇▇ | |
|
Title: President
and Chief Executive Officer | ||
|
Date: April
1, 2005 | ||
|
▇▇▇▇▇▇
FINANCIAL SERVICES, INC. | ||
|
Attest: /s/
▇▇▇▇▇ ▇▇▇▇▇ |
By: /s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ | |
▇▇▇▇▇
▇▇▇▇▇▇, Corporate Executive Secretary |
Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇▇ | |
|
Title: Executive
Vice President | ||
|
Date: April
4, 2005 |
B-1
APPENDIX
C
DOMESTIC
CUSTODY FEES FOR EQUIPOINTE FUNDS
Net Asset
Value Fees*
To be
computed as of month-end on the average net asset value of each portfolio at the
annual rate of:
| • Up to $100 million in assets |
1.0
basis point, plus |
| • Next $150 million in assets |
.75
basis point, plus |
| • $250 million in assets and over |
0.50
basis point |
|
*Subject
to a $500 per month minimum, per portfolio |
Portfolio
Transaction Fees, each
|
• DTC** |
$1.00 |
|
• Fed
Book-Entry** |
$10.00 |
|
• Physical** |
$25.00 |
|
• Principal
Paydown |
$5.00 |
|
• Option
(Purchased or Written)/Future |
$25.00 |
|
• Corporate
Action/Call/Reorganization |
$25.00 |
|
• Wire
In/Out and Check Issued (Non-Settlement Related) |
$15.00 |
|
**A
transaction includes buys, sells, maturities, or free security
movements. |
|
Fund
of Fund Security Transactions |
|
|
• Buy,
Sell or Free Security Movement, each |
$25.00 |
|
Fund
of Fund Dividend Transactions |
|
|
• Dividend,
Capital Gain or Re-invest, each |
$10.00 |
Out-of-Pocket
Expenses
Includes,
but is not limited to, security transfer fees, certificate fees,
shipping/courier fees or charges, SIPC insurance premiums, specialized
programming charges, legal review/processing of restricted and private placement
securities.
This fee
schedule pertains to custody of U.S. Domestic assets only. PFSI will provide its
fee schedule for Euroclear and global custody upon request. Fees for services
not contemplated by this schedule will be negotiated on a case-by-case
basis.
C-1