Exhibit 8
Form of Custodian Contract between Registrant
and IBJ ▇▇▇▇▇▇▇▇ Bank & Trust Company
CUSTODIAN AGREEMENT
between
IBJ FUNDS TRUST
and
IBJ ▇▇▇▇▇▇▇▇ BANK & TRUST COMPANY
DATED NOVEMBER 18, 1994
TABLE OF CONTENTS
PAGE NO.
I. DEFINITION AND EMPLOYMENT OF IBJS 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....................................6
D. Bank Accounts.................................................6
E. Payments for Portfolio Shares.................................7
F. Availability of Federal Funds.................................7
G. Collection of Income..........................................8
H. Payment of Portfolio Moneys...................................8
I. Liability for Payment in Advance of Receipt
of Securities Purchased..................................10
J. Payments for Repurchases or Redemptions of
Portfolio Shares of the Trust............................10
K. Appointment of Agents........................................11
L. Deposit of Portfolio Assets in a Securities
Systems..................................................12
M. Ownership Certificates for Tax Purchases.....................14
N. Proxies......................................................14
O. Communications Relating to Portfolio
Securities...............................................14
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P. Proper Instructions..........................................16
Q. Actions Permitted Without Express Authority..................17
R. Evidence of Authority........................................18
S. No Liability Until Receipt...................................19
T. Segregated Accounts..........................................19
III. DUTIES OF CUSTODIAN WITH RESPECT TO BOOKS OF
ACCOUNT AND CALCULATION OF NET ASSET VALUE
AND NET INCOME....................................................20
IV. RECORDS...........................................................20
V. OPINIONS OF TRUST'S INDEPENDENT PUBLIC
ACCOUNTANTS.......................................................20
VI. REPORTS TO EACH PORTFOLIO AND INDEPENDENT
PUBLIC ACCOUNTANTS................................................21
VII. COMPENSATION OF CUSTODIAN.........................................21
VIII. RESPONSIBILITY OF CUSTODIAN.......................................21
IX. FUNDS TRANSFERS...................................................23
X. EFFECTIVE PERIOD, TERMINATION AND AMENDMENT.......................25
XI. SUCCESSOR CUSTODIAN...............................................27
XII. INTERPRETIVE AND ADDITIONAL PROVISIONS............................28
XIII. TRUSTEES..........................................................28
XIV. APPLICABLE LAW....................................................28
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CUSTODIAN AGREEMENT
This Custodian Agreement between IBJ Funds Trust, hereinafter
called the "Trust," a Delaware business trust, organized on August 25, 1994,
pursuant to the Trust Instrument, as the same may be amended from time to time,
and IBJ ▇▇▇▇▇▇▇▇ Bank & Trust Copany, hereinafter called "IBJS" 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 BANK IV 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. The Trust's shares of beneficial interest may be
classified into series in which each series represents the entire undivided
interests of a separate portfolio of assets. For all purposes of this Agreement,
a "Portfolio" shall mean a separate portfolio of assets of the Trust and a
"Series" shall mean the series of shares of beneficial interest representing
undivided interests in a Portfolio. The current portfolios are Reserve Money
Market Fund, Bond Fund, Core Equity Fund, and Balanced 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
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the Trust. The Trust hereby employs IBJS as the custodian of the assets of each
Portfolio. In the event the Trust establishes one or more 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 IBJS 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. IBJS
shall not be responsible for any property of the Trust held or received by the
Trust and not delivered to IBJS.
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
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Portfolio all non-cash property delivered to it, including all securities 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;
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(4) To the transfer or forwarding agent in connection with tender or
other similar offers for Portfolio 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,
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reorganization or readjustment of the securities of 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;
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(12) Upon receipt of instructions from the transfer agent for the
Trust, for delivery to such transfer 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, 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
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(15) 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 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
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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 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
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amount of checks received in payment for Portfolio Shares of each Portfolio
which are deposited into such Portfolio's account.
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
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such securities to the Custodian (or any bank, banking firm or
trust company doing business in the 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 so pay in advance, the Custodian shall be absolutely
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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
procedures and controls as are
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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 account of
such Portfolio on the next business
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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 the extent that
a Portfolio has not been made whole for any such loss or damage.
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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 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
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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), a "business day" is a
day on which the Custodian is open for business under the laws
of the State of New York; 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
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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 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
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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, 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;
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(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 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
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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 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
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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
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.
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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 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
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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.
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
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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 "payment
order" shall mean an instruction transmitted orally, electronically, or in
writing to pay a fixed or determinable amount to a beneficiary.
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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 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.
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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;
(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
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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 appropriate banking authorities or upon the happening of a like event at
the direction of an appropriate regulatory agency or court of competent
jurisdiction.
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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 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
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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 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
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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
"IBJ Funds Trust" is the designation by the Trustees under the Trust Instrument,
dated August 25, 1994, 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.
IBJ ▇▇▇▇▇▇▇▇ BANK & TRUST COMPANY
By:-------------------------------
Title:
IBJ FUNDS TRUST
By:-------------------------------
Title:
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IBJ Funds Trust
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
November 18, 1994
IBJ ▇▇▇▇▇▇▇▇ Bank & Trust Company
▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: CUSTODIAN AGREEMENT
Dear Sirs:
This will confirm the agreement between IBJ Funds Trust (the
"Company") and IBJ ▇▇▇▇▇▇▇▇ Bank & Trust Company (the "Custodian") as follows:
The Company and the Custodian have entered into a Custodian Agreement,
dated as of November 18, 1994 (as from time to time amended and supplemented,
the "Custodian Agreement"), pursuant to which the Custodian has undertaken to
provide or make provision for the Company for certain custody services
identified therein and to provide certain other services, as more fully set
forth therein. Certain capitalized terms used without definition in this
Custodian Agreement Supplement have the meaning specified in the Custodian
Agreement.
The Company agrees with the Custodian that for all services to be
rendered, facilities furnished and expenses paid or assumed by the Custodian as
provided in the Custodian Agreement and herein, the Company shall pay the
following fees:
a monthly fee at an annual rate of % of the aggregate average daily
net assets of the Funds Out of pocket expenses are billed at cost.
If the foregoing correctly sets forth the agreement between the
Company and the Custodian, please so indicate by signing and returning to the
Company the enclosed copy hereof.
Very truly yours,
IBJ FUNDS
By:______________________
Title:
The foregoing Agreement is hereby
agreed to as of the date hereof:
IBJ ▇▇▇▇▇▇▇▇ BANK & TRUST COMPANY
By:_______________________________
Title: