Custody Agreement
Agreement made as of the 8th day of September 1993,
between Government Investors Trust, GIT Equity Trust, GIT Income
Trust and GIT Tax-Free Trust (the "Trusts"), business trusts
organized under the laws of Massachusetts and having their office
at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, acting for
and on behalf of all mutual fund portfolios as are currently
authorized and issued by the Trusts or may be authorized and
issued by any of the Trusts subsequent to the date of this
Agreement (the "Funds"), which are operated and maintained by
their respective Trusts for the benefit of the holders of shares
of the Funds, and Star Bank, N.A. (the "Custodian"), a national
banking association having its principal office and place of
business at Star Bank Center, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, which Agreement provides for the furnishing of custodian
services to the Funds.
W I T N E S S E T H :
that for and in consideration of the mutual promises hereinafter
set forth the Trusts, on behalf of the Funds, and the Custodian
agree as follows:
Article I
Definitions
Whenever used in this Agreement, the following words and
phrases, unless the context otherwise requires, shall have the
following meanings:
1. "Authorized Person" shall be deemed to include the
Chairman, President, Secretary, Treasurer, and the Executive Vice
President, or any other person, whether or not any such person is
an officer or employee of the Trusts, duly authorized by the
Board of Trustees of the Trusts to give Oral Instructions and
Written Instructions on behalf of the Funds and listed in the
Certificate annexed hereto as Appendix A or such other
Certificate as may be received by the Custodian from time to
time, subject in each case to any limitations on the authority of
such person as set forth in Appendix A or any such Certificate.
Authorized Persons shall also include the President, Executive
Vice President, Secretary and such other officers employed by
Bankers Finance Investment Management Corp. (the "Adviser") as
are designated in writing by the Adviser pursuant to the terms of
the services agreements between the Trusts and the Adviser
regarding day-to-day management of the Funds.
2. "Book-Entry System" shall mean the Federal
Reserve/Treasury book-entry system for United States and federal
agency securities, its successor or successors and its nominee or
nominees, provided the Custodian has received a certified copy of
a resolution of Board of Trustees of the Trusts specifically
approving deposits in the Book-Entry System.
3. "Certificate" shall mean any notice, instruction, or
other instrument in writing, authorized or required by this
Agreement to be given to the Custodian which is signed on behalf
of the Funds by an Officer of the Trusts and is actually received
by the Custodian.
4. "Depository" shall mean The Depository Trust Company
("DTC"), a clearing agency registered with the Securities and
Exchange Commission, its successor or successors and its nominee
or nominees. The term "Depository" shall further mean and include
any other person or clearing agency authorized to act as a
depository under the Investment Company Act of 1940, its
successor or successors and its nominee or nominees, provided
that the Custodian has received a certified copy of a resolution
of the Board of Trustees of the Trusts specifically approving
such other person or clearing agency as a depository.
5. "Dividend and Transfer Agent" shall mean the dividend
and transfer agent active, from time to time, in such capacity
pursuant to a written agreement with the Funds, changes in which
the Trusts shall immediately report to the Custodian in writing.
6. "Money Market Security" shall be deemed to include,
without limitation, debt obligations issued or guaranteed as to
principal and/or interest by the government of the United States
or agencies or instrumentalities thereof, commercial paper,
obligations (including certificates of deposit, bankers'
acceptances, repurchase and reverse repurchase agreements with
respect to the same) and bank time deposits of domestic banks
that are members of Federal Deposit Insurance Trust, and short-
term corporate obligations where the purchase and sale of such
securities normally require settlement in federal funds or their
equivalent on the same day as such purchase or sale.
7. "Officers" shall be deemed to include the Chairman, the
President, the Secretary, the Treasurer, and Executive Vice
President of the Trusts listed in the Certificate annexed hereto
as Appendix A or such other Certificate as may be received by the
Custodian from time to time.
8. "Oral Instructions" shall mean oral instructions
actually received by the Custodian from an Authorized Person (or
from a person which the Custodian reasonably believes in good
faith to be an Authorized Person) and confirmed by Written
Instructions from Authorized Persons in such manner so that such
Written Instructions are received by the Custodian on the next
business day.
9. "Prospectus" or "Prospectuses" shall mean the Funds'
currently effective prospectuses and statements of additional
information.
10. "Security or Securities" shall mean Money Market
Securities, common or preferred stocks, options, bonds,
debentures, corporate debt securities, notes, mortgages or other
obligations, and any certificates, receipts, warrants or other
instruments representing rights to receive, purchase or subscribe
for the same, or evidencing or representing any other rights or
interest therein, or any property or assets.
11. "Written Instructions" shall mean communication
actually received by the Custodian from one Authorized Person or
from one person which the Custodian reasonably believes in good
faith to be an Authorized Person in writing, telex or any other
data transmission system whereby the receiver of such
communication is able to verify by codes or otherwise with a
reasonable degree of certainty the authenticity of the senders of
such communication.
Article II
Appointment of Custodian
1. The Trusts, acting for and on behalf of their respective
Funds, hereby constitute and appoint the Custodian as custodian
of Securities and monies owned by the Funds during the period of
this Agreement ("Fund Assets").
2. The Custodian hereby accepts appointment as such
Custodian and agrees to perform the duties thereof as hereinafter
set forth.
Article III
Documents to be Furnished by the Trust
Each Trust hereby agrees to furnish to the Custodian the
following documents within a reasonable time after the effective
date of this Agreement:
1. A copy of its Declaration of Trust (the "Declaration of
Trust") certified by its Secretary.
2. A copy of its By-Laws certified by its Secretary.
3. Copies of the most recent Prospectuses of the Trust.
4. A Certificate of the President and Secretary setting
forth the names and signatures of the present Officers of the
Trust.
Article IV
Custody of Cash and Securities
1. Each Trust will deliver or cause to be delivered to the
Custodian Fund Assets, including cash received for the issuance
of its shares. The Custodian will not be responsible for such
Fund Assets until actually received by it. Upon such receipt, the
Custodian shall hold in safekeeping and physically segregate at
all times from the property of any other persons, firms or
corporations all Fund Assets received by it from or for the
accounts of the Funds. The Custodian will be entitled to reverse
any credits made on the Funds' behalf where such credits have
been previously made and monies are not finally collected within
90 days of the making of such credits. The Custodian is hereby
authorized by the Trusts, acting on behalf of the Funds, to
actually deposit any Fund Assets in the Book-Entry System or in a
Depository, provided, however, that the Custodian shall always be
accountable to the Trusts for the Fund Assets so deposited. Funds
Assets deposited in the Book-Entry System or the Depository will
be represented in accounts which include only assets held by the
Custodian for customers, including but not limited to accounts in
which the Custodian acts in a fiduciary or representative
capacity.
2. The Custodian shall credit to a separate account or
accounts in the name of each respective Fund all monies received
by it for the account of such Fund, and shall disburse the same
only:
(a) In payment for Securities purchased for the account of such
Fund, as provided in Article V;
(b) In payment of dividends or distributions, as provided in
Article VI hereof;
(c) In payment of original issue or other taxes, as provided
in Article VII hereof;
(d) In payment for shares of such Fund redeemed by it, as
provided in Article VII hereof;
(e) Pursuant to Certificates (i) directing payment and setting
forth the name and address of the person to whom the payment is
to be made, the amount of such payment and the purpose for which
payment is to be made (the Custodian not being required to
question such direction) or (ii) if reserve requirements are
established for a Fund by law or by valid regulation, directing
the Custodian to deposit a specified amount of collected funds in
the form of U. S. dollars at a specified Federal Reserve Bank and
state the purpose of such deposit; or
(f) In reimbursement of the expenses and liabilities of the
Custodian, as provided in paragraph 10 of Article IX hereof.
3. Promptly after the close of business on each day the
Funds are open and valuing their portfolios, the Custodian shall
furnish the respective Trusts with a detailed statement of monies
held for the Funds under this Agreement and with confirmations
and a summary of all transfers to or from the account of the
Funds during said day. Where Securities are transferred to the
account of the Funds without physical delivery, the Custodian
shall also identify as belonging to the Funds a quantity of
Securities in a fungible bulk of Securities registered in the
name of the Custodian (or its nominee) or shown on the
Custodian's account on the books of the Book-Entry System or the
Depository. At least monthly and from time to time, the Custodian
shall furnish the Trusts with a detailed statement of the
Securities held for the Funds under this Agreement.
4. All Securities held for the Funds, which are issued or
issuable only in bearer form, except such Securities as are held
in the Book-Entry System, shall be held by the Custodian in that
form; all other Securities held for the Funds may be registered
in the name of the Funds, in the name of any duly appointed
registered nominee of the Custodian as the Custodian may from
time to time determine, or in the name of the Book-Entry System
or the Depository or their successor or successors, or their
nominee or nominees. Each Trust agrees to furnish to the
Custodian appropriate instruments to enable the Custodian to hold
or deliver in proper form for transfer, or to register in the
name of its registered nominee or in the name of the Book-Entry
System or the Depository, any Securities which it may hold for
the account of the Funds and which may from time to time be
registered in the name of the Funds. The Custodian shall hold all
such Securities which are not held in the Book-Entry System by
the Depository or a Sub-Custodian in a separate account or
accounts in the name of the Funds segregated at all times from
those of any other fund maintained and operated by the Trust and
from those of any other person or persons.
5. Unless otherwise instructed to the contrary by a
Certificate, the Custodian shall with respect to all
Securities held for the Funds in accordance with this
Agreement:
(a) Collect all income due or payable to the Funds with
respect to each Fund's Assets;
(b) Present for payment and collect the amount payable
upon all Securities which may mature or be called, redeemed,
or retired, or otherwise become payable;
(c) Surrender Securities in temporary form for definitive
Securities;
(d) Execute, as Custodian, any necessary declarations or
certificates of ownership under the Federal income tax laws
or the laws or regulations of any other taxing authority,
including any foreign taxing authority, now or hereafter in
effect; and
(e) Hold directly, or through the Book-Entry System or
the Depository with respect to Securities therein deposited,
for the account of the Funds all rights and similar
securities issued with respect to any Securities held by the
Custodian hereunder.
6. Upon receipt of Written Instructions and not
otherwise, the Custodian directly or through the use of the
Book-Entry System or the Depository shall:
(a) Execute and deliver to such persons as may be
designated in such Written Instructions proxies, consents,
authorizations, and any other instruments whereby the
authority of the Funds as owner of any Securities may be
exercised;
(b) Deliver any Securities held for the Funds in exchange
for other Securities or cash issued or paid in connection
with the liquidation, reorganization, refinancing, merger,
consolidation or recapitalization of any corporation, or the
exercise of any conversion privilege;
(c) Deliver any Securities held for the account of the
Funds to any protective committee, reorganization committee
or other person in connection with the reorganization,
refinancing, merger, consolidation, recapitalization or sale
of assets of any corporation, and receive and hold under the
terms of this Agreement such certificates of deposit,
interim receipts or other instruments or documents as may be
issued to it to evidence such delivery; and
(d) Make such transfers or exchanges of the assets of the
Funds and take such other steps as shall be stated in a
Certificate to be for the purpose of effectuating any duly
authorized plan of liquidation, reorganization, merger,
consolidation or recapitalization of the Funds.
7. The Custodian shall promptly deliver to each
respective Trust all notices, proxy material and executed
but unvoted proxies pertaining to shareholder meetings of
Securities held by the Funds. The Custodian shall not vote
or authorize the voting of any Securities or give any
consent, waiver or approval with respect thereto unless so
directed by a Certificate or Written Instruction.
8. The Custodian shall promptly deliver to the Trusts
all material and notices received by the Custodian and
pertaining to Securities held by the Funds with respect to
tender or exchange offers, calls for redemption or purchase,
expiration of rights, name changes, stock splits and stock
dividends, or any other activity involving ownership rights
in such Securities.
9. The Custodian shall conduct such periodic physical
inspection of Securities held by it under this Agreement as
it deems advisable to verify the accuracy of its inventory.
The Custodian shall promptly report to the Trusts any
discrepancies or shortages revealed by such inspections and
shall make every effort promptly to remedy such
discrepancies or shortages.
Article V
Purchase and Sale of Investments of the Funds
1. Promptly after each purchase of Securities by the
Funds, the respective Trust shall deliver to the Custodian
(i) with respect to each purchase of Securities which are
not Money Market Securities, a Certificate or Written
Instructions, and (ii) with respect to each purchase of
Money Market Securities, Written Instructions, a Certificate
or Oral Instructions, specifying with respect to each such
purchase: (a) the name of the issuer and the title of the
Securities, (b) the principal amount purchased and accrued
interest, if any, (c) the date of purchase and settlement,
(d) the purchase price per unit, (e) the total amount
payable upon such purchase and (f) the name of the person
from whom or the broker through whom the purchase was made.
The Custodian shall upon receipt of Securities purchased by
or for the Funds, pay out of the monies held for the account
of the Funds the total amount payable to the person from
whom or the broker through whom the purchase was made,
provided that the same conforms to the total amount
payable as set forth in such Certificate, Written
Instructions or Oral Instructions.
2. Promptly after each sale of Securities by the
respective Trust for the account of the Funds, such Trust shall
deliver to the Custodian (i) with respect to each sale of
Securities which are not Money Market Securities, a Certificate
or Written Instructions, and (ii) with respect to each sale of
Money Market Securities, Written Instructions, a Certificate or
Oral Instructions, specifying with respect to each such sale: (a)
the name of the issuer and the title of the Security, (b) the
principal amount sold, and accrued interest, if any, (c) the date
of sale, (d) the sale price per unit, (e) the total amount
payable to the Funds upon such sale and (f) the name of the
broker through whom or the person to whom the sale was made. The
Custodian shall deliver the Securities upon receipt of the total
amount payable to the Funds upon such sale, provided that the
same conforms to the total amount payable as set forth in such
Certificate, Written Instructions or Oral Instructions. Subject
to the foregoing, the Custodian may accept payment in such form
as shall be satisfactory to it, and may deliver Securities and
arrange for payment in accordance with the customs prevailing
among dealers in Securities.
3. Promptly after the time as of which a Trust, on behalf
of a Fund, either -
(a) writes an option on Securities or writes a covered put
option in respect of a Security, or
(b) notifies the Custodian that its obligations in respect
of any put or call option, as described in such Trust's
Prospectus, require that the Fund deposit Securities or
additional Securities with the Custodian, specifying the type and
value of Securities required to be so deposited, or
(c) notifies the Custodian that its obligations in respect
of any other Security, as described in each Fund's respective
Prospectus, require that the Fund deposit Securities or
additional Securities with the Custodian, specifying the type and
value of Securities required to be so deposited, the Custodian
will cause to be segregated or identified as deposited, pursuant
to the Fund's obligations as set forth in such Prospectus,
Securities of such kinds and having such aggregate values as are
required to meet the Fund's obligations in respect thereof.
The Trust will provide to the Custodian, as of the end of
each trading day, the market value of each Fund's option
liability, if any, and the market value of its portfolio of
common stocks.
4. On contractual settlement date, the account of each
respective Fund will be charged for all purchases settling on
that day, regardless of whether or not delivery is made. On
contractual settlement date, sale proceeds will likewise be
credited to the account of such Fund irrespective of delivery.
In the case of "sale fails", the Custodian may request the
assistance of the Trusts in making delivery of the failed
Security.
Article VI
Payment of Dividends or Distributions
1. Each Trust shall furnish to the Custodian Written
Instructions to release or otherwise apply cash insofar as
available for the payment of dividends or other distributions to
Fund shareholders entitled to payment as determined by the
Dividend and Transfer Agent of the Funds. The Custodian may rely
on any such Written Instructions so received, and shall be
indemnified by the Trust providing such instructions for such
reliance.
2. Upon the payment date specified in such Written
Instructions, the Custodian shall arrange for such payments to be
made by the Dividend and Transfer Agent out of monies held for
the accounts of the Funds.
Article VII
Sale and Redemption of Shares of the Funds
1. The Custodian shall receive and credit to the account
of each Fund such payments for shares of such Fund issued or sold
from time to time as are received from the distributor for the
Fund's shares, from the Dividend and Transfer Agent of the Fund,
or from the Trust.
2. Upon receipt of Written Instructions, the Custodian
shall arrange for payment of redemption proceeds to be made by
the Dividend and Transfer Agent out of the monies held for the
account of the respective Funds in the total amount specified in
the Written Instructions.
3. Notwithstanding the above provisions regarding the
redemption of any shares of the Funds, whenever shares of the
Funds are redeemed pursuant to any check redemption privilege
which may from time to time be offered by the Funds, the
Custodian, unless otherwise subsequently instructed by Written
Instructions shall, upon receipt of any Written Instructions
setting forth that the redemption is in good form for redemption
in accordance with the check redemption procedure, or pursuant to
preauthorized Written Instructions or procedures established with
regard thereto, honor the check presented as part of such check
redemption privilege out of the money held in the account of the
Funds for such purposes.
Article VIII
Indebtedness
In connection with any borrowings, each Trust, on behalf of
its respective Funds, will cause to be delivered to the Custodian
by a bank or broker (including the Custodian, if the borrowing is
from the Custodian), requiring Securities as collateral for such
borrowings, a notice or undertaking in the form currently
employed by any such bank or broker setting forth the amount
which such bank or broker will loan to the Funds against delivery
of a stated amount of collateral. Each Trust shall promptly
deliver to the Custodian a Certificate specifying with respect to
each such borrowing: (a) the name of the bank or broker, (b) the
amount and terms of the borrowing, which may be set forth by
incorporating by reference an attached promissory note, duly
endorsed by the Trust, acting on behalf of a Fund, or other loan
agreement, (c) the date and time, if known, on which the loan is
to be entered into, (d) the date on which the loan becomes due
and payable, (e) the total amount payable to the Fund on the
borrowing date, (f) the market value of Securities
collateralizing the loan, including the name of the issuer, the
title and the number of shares or the principal amount of any
particular Securities and (g) a statement that such loan is in
conformance with the Investment Company Act of 1940 and the
Fund's then current Prospectus. The Custodian shall deliver on
the borrowing date specified in a Certificate the specified
collateral and the executed promissory note, if any, against
delivery by the lending bank or broker of the total amount of the
loan payable provided that the same conforms to the total amount
payable as set forth in the Certificate. The Custodian may, at
the option of the lending bank or broker, keep such collateral in
its possession, but such collateral shall be subject to all
rights therein given the lending bank or broker, by virtue of any
promissory note or loan agreement. The Custodian shall deliver in
the manner directed by the Trust from time to time such
Securities as additional collateral as may be specified in a
Certificate to collateralize further any transaction described in
this paragraph. Such Trust shall cause all Securities released
from collateral status to be returned directly to the Custodian
and the Custodian shall receive from time to time such return of
collateral as may be tendered to it. In the event that a Trust
fails to specify in a Certificate the name of the issuer, the
title and number of shares or the principal amount of any
particular Securities to be delivered as collateral by the
Custodian, the Custodian shall not be under any obligation to
deliver any Securities. The Custodian may require such reasonable
conditions with respect to such collateral and its dealings with
third-party lenders as it may deem appropriate.
Article IX
Concerning the Custodian
1. Except as otherwise provided herein, the Custodian
shall not be liable for any loss or damage, including counsel
fees, resulting from its action or omission to act or otherwise,
except for any such loss or damage arising out of its own
negligence or willful misconduct. Each Trust, on behalf of its
Funds and only from applicable Fund Assets (or insurance
purchased by a Trust with respect to its liabilities on behalf of
its Funds hereunder), shall defend, indemnify and hold
harmless the Custodian, its officers, employees and agents,
with respect to any loss, claim, liability or cost
(including reasonable attorneys' fees) arising or alleged to
arise from or relating to each Trust's duties with respect
to its Funds hereunder or any other action or inaction of
the respective Trust or its Trustees, Officers, employees or
agents as to the Funds, except such as may arise from the
negligent action, omission or willful misconduct of the
Custodian, its officers, employees or agents. The Custodian
shall defend, indemnify and hold harmless each Trust and its
Trustees, Officers, employees or agents with respect to any
loss, claim, liability or cost (including reasonable
attorneys' fees) arising or alleged to arise from or relating to
the Custodian's duties with respect to the Funds hereunder
or any other action or inaction of the Custodian or its
Trustees, Officers, employees, agents, nominees or Sub-
Custodians as to the Funds, except such as may arise from
the negligent action, omission or willful misconduct of the
Trust, its Trustees, Officers, employees or agents. The
Custodian may, with respect to questions of law apply for
and obtain the advice and opinion of counsel to the Trusts
at the expense of the Funds, or of its own counsel at its
own expense, and shall be fully protected with respect to
anything done or omitted by it in good faith in conformity
with the advice or opinion of counsel to the Trusts, and
shall be similarly protected with respect to anything done
or omitted by it in good faith in conformity with the advice
or opinion of its counsel, unless counsel to the Funds
shall, within a reasonable time after being notified of
legal advice received by the Custodian, have a differing
interpretation of such question of law. The Custodian shall
be liable to the Trusts for any proximate loss or damage
resulting from the use of the Book-Entry System or any
Depository arising by reason of any negligence, misfeasance
or misconduct on the part of the Custodian or any of its
employees, agents, nominees or Sub-Custodians but not for
any special, incidental, consequential, or punitive damages;
provided, however, that nothing contained herein shall
preclude recovery by a Trust, on behalf of its Funds, of
principal and of interest to the date of recovery on,
Securities incorrectly omitted from or included in a Fund's
accounts or penalties imposed on the Trusts, in connection
with the Funds, therefrom or for any failures to deliver
Securities.
In any case in which one party hereto may be asked to indemnify the other
or hold the other harmless, the party from
whom indemnification is sought (the "Indemnifying Party") shall
be advised of all pertinent facts concerning the situation in
question, and the party claiming a right to indemnification (the
"Indemnified Party") will use reasonable care to identify and
notify the Indemnifying Party promptly concerning any situation
which presents or appears to present a claim for indemnification
against
the Indemnifying Party. The Indemnifying Party shall have
the option to defend the Indemnified Party against any claim
which may be the subject of the indemnification, and in the event
the Indemnifying Party so elects, such defense shall be conducted
by counsel chosen by the Indemnifying Party and satisfactory to
the Indemnified Party and the Indemnifying Party will so notify
the Indemnified Party and thereupon such Indemnifying Party shall
take over the complete defense of the claim and the Indemnifying
Party shall sustain no further legal or other expenses in such
situation for which indemnification has been sought under this
paragraph, except the expenses of any additional counsel retained
by the Indemnified Party. In no case shall any party claiming the
right to indemnification confess any claim or make any compromise
in any case in which the other party has been asked to indemnify
such party (unless such confession or compromise is made with such
other party's prior written consent).
The Custodian acknowledges the limitation of liability
provisions of Article XI of each Trust's Declaration of Trust and
agrees that the obligations and liabilities of each Trust under
this Agreement shall be limited by and to the extent of the Trust
and its assets and that the Custodian shall not be entitled to
seek satisfaction of any such obligation or liability from the
Trusts' shareholders, Trustees, Officers, employees or agents.
The obligations of the parties hereto under this
paragraph shall survive the termination of this Agreement.
2. Without limiting the generality of the foregoing,
the Custodian, acting in the capacity of Custodian
hereunder, shall be under no obligation to inquire into, and
shall not be liable for:
(a) The validity of the issue of any Securities purchased
by or for the account of the Funds, the legality of the
purchase
thereof, or the propriety of the amount paid therefor;
(b) The legality of the sale of any Securities by or for
the account of the Funds, or the propriety of the amount for
which the same are sold;
(c) The legality of the issue or sale of any shares of the
Funds, or the sufficiency of the amount to be received
therefor;
(d) The legality of the redemption of any shares of the
Funds, or the propriety of the amount to be paid therefor;
(e) The legality of the declaration or payment of any
dividend by the Trust in respect of shares of the Funds;
(f) The legality of any borrowing by the Trust, on behalf
of the Funds, using Securities as collateral;
(g) The sufficiency of any deposit made pursuant to a
Certificate described in clause (ii) of paragraph 2(e) of
Article IV hereof.
3. The Custodian shall not be liable for any money or
collected funds in U.S. dollars deposited in a Federal
Reserve Bank other than the Custodian in accordance with a
Certificate described in clause (ii) of paragraph 2(e) of
Article IV hereof, nor be liable for or considered to be the
Custodian of any money, whether or not represented by any
check, draft, or other instrument for the payment of money,
received by it on behalf of the Funds until the Custodian
actually receives and collects such money directly or by the
final crediting of the account representing the Funds'
interest at the Book-Entry System or Depository.
4. The Custodian shall not be under any duty or
obligation to take action to effect collection of any amount
due to the Funds from the Dividend and Transfer Agent of the
Funds nor to take any action to effect payment or
distribution by the Dividend and Transfer Agent of the Funds
of any amount paid by the Custodian to the Dividend and
Transfer Agent of the Funds in accordance with this
Agreement.
5. Income due or payable to the Funds with respect to
Funds Assets will be credited to the account of the Funds as
follows:
(a) Dividends will be credited on the first business day
following payable date irrespective of collection.
(b) Interest on fixed rate municipal bonds and debt
securities issued or guaranteed as to principal and/or
interest by the government of the United States or agencies
or instrumentalities thereof (excluding securities issued by
the Government National Mortgage Association) will be
credited on payable date irrespective of collection.
(c) Interest on fixed rate corporate debt securities will
be credited on the first business day following payable date
irrespective of collection.
(d) Interest on variable and floating rate debt securities
and debt securities issued by the Government National
Mortgage Association will be credited upon the Custodian's
receipt of funds.
(e) Proceeds from options will be credited upon the
Custodian's receipt of funds.
6. Notwithstanding paragraph 5 of this Article IX, the
Custodian shall not be under any duty or obligation to take
action to effect collection of any amount, if the Securities
upon which such amount is payable are in default, or if
payment is refused after due demand or presentation, unless
and until (i) it shall be directed to take such action by a
Certificate and (ii) it shall be assured to its satisfaction
of reimbursement of its costs and expenses in connection
with any such action or, at the Custodian's option,
prepayment.
7. The Custodian may appoint one or more financial or
banking institutions, as Depository or Depositories or as Sub-
Custodian or Sub-Custodians, including, but not limited to,
banking institutions located in foreign countries, of
Securities and monies at any time owned by the Funds, upon
terms and conditions approved in a Certificate. Current
Depository(s) and Sub-Custodian(s) are noted in Appendix B.
The Custodian shall not be relieved of any obligation or
liability under this Agreement in connection with the
appointment or activities of such Depositories or Sub-
Custodians.
8. The Custodian shall not be under any duty or
obligation to ascertain whether any Securities at any time
delivered to or held by it for the account of the Funds are
such as properly may be held by the Funds under the
provisions of the Declarations of Trust and the Trusts' By-
Laws.
9. The Custodian shall treat all records and other
information relating to the Trusts, the Funds and the Funds'
Assets as confidential and shall not disclose any such
records or information to any other person unless (a) the
respective Trust shall have consented thereto in writing or
(b) such disclosure is compelled by law.
10. The Custodian shall be entitled to receive and the
Trusts agree to pay to the Custodian such compensation as shall
be determined pursuant to Appendix C attached hereto, or as shall
be determined pursuant to amendments to such Appendix approved by
the Custodian and the Trust, on behalf of the Funds. The
Custodian shall be entitled to charge against any money held by
it for the account of the Funds the amount of any loss, damage,
liability or expense, including counsel fees, for which it shall
be entitled to reimbursement under the provisions of this
Agreement as determined by agreement of the Custodian and
the applicable Trust or by the final order of any court or
arbitrator having jurisdiction and as to which all rights of
appeal shall have expired. The expenses which the Custodian
may charge against the accounts of the Funds include, but
are not limited to, the expenses of Sub-Custodians incurred
in settling transactions involving the purchase and sale of
Securities of the Funds.
Notwithstanding the above, to the extent such compensation
and expenses of the Custodian are paid to the Custodian by the
Adviser pursuant to the services agreements between the Trusts
and the Adviser, no charges shall be made against the accounts of
the Funds by the Custodian.
11. The Custodian shall be entitled to rely upon any
Certificate. The Custodian shall be entitled to rely upon any
Oral Instructions and any Written Instructions actually received
by the Custodian pursuant to Article IV or V hereof. Each Trust
agrees to forward to the Custodian Written Instructions from
Authorized Persons confirming Oral Instructions in such manner so
that such Written Instructions are received by the Custodian,
whether by hand delivery, telex or otherwise, on the first
business day following the day on which such Oral Instructions
are given to the Custodian. Each Trust agrees that the fact that
such confirming instructions are not received by the Custodian
shall in no way affect the validity of the transactions or
enforceability of the transactions hereby authorized by the
Trust. Each Trust agrees that the Custodian shall incur no
liability to the Funds in acting upon Oral Instructions given to
the Custodian hereunder concerning such transactions.
12. The Custodian will (a) set up and maintain proper
books of account and complete records of all transactions in
the accounts maintained by the Custodian hereunder in such
manner as will meet the obligations of the Funds under the
Investment Company Act of 1940, with particular attention to
Section 31 thereof and Rules 31 a-1 and 31 a-2 thereunder,
and (b) preserve for the periods prescribed by applicable
Federal statute or regulation all records required to be so
preserved. The books and records of the Custodian shall be
open to inspection and audit at reasonable times and with
prior notice by officers and auditors employed by the
Trusts.
13. The Custodian and its Sub-Custodians shall
promptly send to the Trusts, for the account of the Funds,
any report received on the systems of internal accounting
control of the Book-Entry System or the Depository and with
such reports on their own systems of internal accounting
control as the Trusts may reasonably request from time to
time.
14. The Custodian performs only the services of a
custodian and shall have no responsibility for the
management, investment or reinvestment of the Securities
from time to time owned by the Funds. The Custodian is not a
selling agent for shares of the Funds and performance of its
duties as a custodial agent shall not be deemed to be a
recommendation to the Custodian's depositors or others of
shares of the Funds as an investment.
Article X
Termination
1. The Custodian or any of the Trusts may terminate this
Agreement for any reason by giving to the other party a notice in
writing specifying the date of such termination, which shall be
not less than ninety (90) days after the date of giving of such
notice. If such notice is given by any Trust, on behalf of any of
its Funds, it shall state in writing that the Trust is electing
to terminate this Agreement and shall designate a successor
custodian or custodians, each of which shall be a bank or trust
company having not less than $2,000,000 aggregate capital,
surplus and undivided profits. In the event such notice is given
by the Custodian, the Trusts shall, on or before the termination
date, deliver to the Custodian a copy of a resolution of their
Board of Trustees, certified by the Secretary or Assistant
Secretary, designating a successor custodian or custodians to act
on behalf of the Funds. In the absence of such designation by the
Trusts, the Custodian may designate a successor custodian which
shall be a bank or trust company having not less than $2,000,000
aggregate capital, surplus, and undivided profits. Upon the date
set forth in such notice this Agreement shall terminate, and the
Custodian, provided that it has received a notice of acceptance
by the successor custodian, shall deliver, on that date, directly
to the successor custodian all Securities and monies then owned
by the Funds and held by it as Custodian. Upon termination of
this Agreement, the Trusts shall pay to the Custodian on behalf
of the Funds such compensation as may be due as of the date of
such termination. The Trusts agree on behalf of the Funds that
the Custodian shall be reimbursed for its reasonable costs in
connection with the termination of this Agreement.
2. If a successor custodian is not designated by the
Trusts, on behalf of the Funds, or by the Custodian in accordance
with the preceding paragraph, or the designated successor cannot
or will not serve, each Trust shall upon the delivery by the
Custodian to each Trust of all Securities (other than Securities
held in the Book-Entry System which cannot be delivered to the
Trust) and monies then owned by its Funds, other than monies
deposited with a Federal Reserve Bank pursuant to a Certificate
described in clause (ii) of paragraph 2(e) of Article IV, be
deemed to be the custodian for its Funds, and the Custodian shall
thereby be relieved of all duties and responsibilities pursuant
to this Agreement, other than the duty with respect to Securities
held in the Book-Entry System which cannot be delivered to the
Trust to hold such Securities hereunder in accordance with this
Agreement.
Article XI
Miscellaneous
1. Appendix A sets forth the names and the signatures of
all Authorized Persons. Each Trust agrees to furnish to the
Custodian, on behalf of its Funds, a new Appendix A in form
similar to the attached Appendix A, if any present Authorized
Person ceases to be an Authorized Person or if any other or
additional Authorized Persons are elected or appointed. Until
such new Appendix A shall be received, the Custodian shall be
fully protected in acting under the provisions of this Agreement
upon Oral Instructions or signatures of the present Authorized
Persons as set forth in the last delivered Appendix A.
2. No recourse under any obligation of this Agreement or
for any claim based thereon shall be had against any organizer,
shareholder, Officer, Trustee, past, present or future as such,
of the Trusts or of any predecessor or successor, either directly
or through the Trusts or any such predecessor or successor,
whether by virtue of any constitution, statute or rule of law or
equity, or by the enforcement of any assessment or penalty or
otherwise; it being expressly agreed and understood that this
Agreement and the obligations thereunder are enforceable solely
against Fund Assets, and that no such personal liability whatever
shall attach to, or is or shall be incurred by, the organizers,
shareholders, Officers, Trustees of the Trusts or of any
predecessor or successor, or any of them as such, because of the
obligations contained in this Agreement or implied therefrom and
that any and all such liability is hereby expressly waived and
released by the Custodian as a condition of, and as a
consideration for, the execution of this Agreement.
3. The obligations set forth in this Agreement as having
been made by the Trusts have been made by each Trust for and on
behalf of its Funds, pursuant to the authority vested in the
Trusts under the laws of the Commonwealth of Massachusetts, the
Declarations of Trust and the By-Laws of the Trusts. This
Agreement has been executed by Officers of the Trusts as
officers, and not individually, and the obligations contained
herein are not binding upon any of the Trustees, Officers, Agents
or holders of shares, personally, but bind only the Trusts and
then only to the extent of the respective Trust's Fund Assets.
4. Such provisions of the Prospectuses of the Funds and any
other documents (including advertising material) specifically
mentioning the Custodian (other than merely by name and address)
shall be reviewed with the Custodian by the Trust.
5. Any notice or other instrument in writing, authorized or
required by this Agreement to be given to the Custodian, shall be
sufficiently given if addressed to the Custodian and mailed or
delivered to it at its offices at Star Bank Center, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇. ▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, attention Mutual
Funds Custody Department, or at such other place as the Custodian
may from time to time designate in writing.
6. Any notice or other instrument in writing, authorized or
required by this Agreement to be given to any Trust shall be
sufficiently given if addressed to the Trust and mailed or
delivered to it at its office at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other place as the
Trusts may from time to time designate in writing.
7. This Agreement with the exception of Appendices A & B
may not be amended or modified in any manner except by a written
agreement executed by all parties provided that no amendment
shall be in contravention of or inconsistent with any federal or
state law or regulation or the Declarations of Trust or By-Laws
of the Trusts.
8. This Agreement shall extend to and shall be binding upon
the parties hereto, and their respective successors and assigns;
provided, however, that this Agreement shall not be assignable by
the Trusts or by the Custodian, and no attempted assignment by
the Trusts or the Custodian shall be effective without the
written consent of the other party hereto.
9. This Agreement shall be construed in accordance with the
laws of the State of Ohio.
10. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original,
but such counterparts shall, together, constitute only one
instrument.
11. Where applicable and required based upon the context
used, the singular of any term used in this Agreement shall
include the plural and the plural may refer to the singular.
In Witness Whereof, the parties hereto have caused this Agreement
to be executed by their respective Officers, thereunto duly
authorized as of the day and year first above written.
Attest: Government Investors Trust
GIT Equity Trust, GIT Income
Trust and GIT Tax-Free Trust
(signature) (signature)
W. ▇▇▇▇▇▇▇ ▇▇▇▇▇ By: ▇.▇. ▇▇▇▇▇▇
Attest: Star Bank, N.A.
(signature) (signature)
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Senior Trust Officer
Appendix A
Authorized Persons Specimen Signatures
Fund Officers:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (signature)
W. ▇▇▇▇▇▇▇ ▇▇▇▇▇ (signature)
Adviser Employees:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (signature)
▇▇▇▇ ▇▇▇▇▇▇▇* (signature)
▇▇▇▇▇ ▇. ▇▇▇▇▇▇* (signature)
T. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇* (signature)
See Signature Cards for Additional Adviser Employees Authorized To
Sign Checks on Fund Accounts
* Denotes authority restricted to securities trades.
Amendment Dated: February 13, ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇
The following Depository(s) and Sub-Custodian(s) are employed
currently by Star Bank, N.A. for securities processing and control
The Depository Trust Company (New York)
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
The Federal Reserve Bank
Cincinnati and Cleveland Branches
Bankers Trust Company
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Schedule C
Star Bank, N.A. as Custodian, will receive monthly compensation
for services according to the terms of the following Schedule:
I. Portfolio Transaction Fees:
(a) For each repurchase agreement transaction $7.00
(b) For each portfolio transaction processed
through DTC or Federal Reserve $10.00
(c) For each portfolio transaction processed
through our New York custodian $25.00
(d) For each GNMA/Amortized Security purchase$40.00
(e) For each GNMA/Prin/Int Paydown, GNMA
Sales $8.00
(f) For each option/future contract written,
exercised or expired $40.00
(g) For each Cedel/Euro clear transaction $100.00
(h) For each Disbursement (Fund expenses only)$5.00
A transaction is a purchase/sale of a security, free receipt/
free delivery (excludes initial conversion), maturity, tender
or exchange:
II. Monthly Market Value Fee
Based upon Month-end at a rate of: ▇▇▇▇▇▇▇
.▇▇▇▇ (▇ ▇▇▇▇▇ ▇▇▇▇▇▇) on First $50
.0001 (1 Basis Points) on Next $25
.000075 (3/4 Basis Point) on Balance
III. Out-of-Pocket Expenses
The only out-of-pocket expenses charged to your account
will be shipping fees or transfer fees.
IV. ▇▇▇ Documents
Per Shareholder/year to hold each ▇▇▇ Document $8.00
V. Earnings Credits
On a monthly basis any earnings credits generated from univested
custody balances will be first applied against any cash management
service fees and then to custody transaction fees (as referenced
in item #1 above). Earnings credits are based on the average yield
on the 91 day U.S. Treasury ▇▇▇▇ for the preceding thirteen weeks
less the 10% reserve.
Amendment To Agreement
This Amendment is made effective the 15th day of November,
1993 to the Custody Agreement made as of September 8, 1993
by and between Government Investors Trust, GIT Equity Trust,
GIT Income Trust and GIT Tax-Free Trust (the "Trust") and
Star Bank, N.A. (the "Custodian") to provide custodian
services to the Funds.
The Trusts and the Custodian agree to amend the Agreement as
follows:
1. This sentence shall be added to the first paragraph:
Custodian agrees to retain custody of U.S. Government
Securities and securities issued and sold primarily in the
United States. Pursuant to Paragraph 7 of Article IX of
this Agreement, Custodian hereby appoints Bankers Trust
Company as Sub-Custodian to retain custody of foreign
securities in accordance with the terms and conditions of
the Agreement dated as November 15, 1993 between Bankers
Trust Company and Star Bank, N.A. attached hereto as
Appendix D (the "Sub-Custodian Agreement"). The Trust
hereby acknowledges such appointment and expressly agrees to
the terms and conditions set forth in the Sub-Custodian
Agreement.
2. A new Paragraph 12 shall be added to Article I,
Definitions as follows.
"Foreign Securities" include securities issued and sold
primarily outside of the United States by a foreign
government, a national of any foreign country or a
corporation or other organization incorporated or organized
under the laws of any foreign country and securities issued
or guaranteed by the Government of the United States or by
any state or any political subdivision thereof or by any
agency thereof by any entity organized under the laws of the
United States or of any state thereof which have been issued
and sold primarily outside the United States.
In Witness Whereof, the parties hereby ratify and affirm the
Agreement in its entirety as amended by this Amendment.
Attest:
(signature) W. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Government Investors Trust,
GIT Equity Trust, GIT Income Trust
and GIT Tax-Free Trust
By: (signature) ▇. ▇. ▇▇▇▇▇▇
Attest:
(signature) ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇, Trust Officer
Star Bank, N.A.
By: (signature) ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Senior Trust Officer
Appendix D
Custodian Agreement
Agreement dated as of 11/15, 1993, between Bankers Trust
Company (the "Custodian") and Star Bank, N.A. (the
"Customer"). Customer represents and Custodian acknowledges
that it is entering into this Agreement solely as Custodian
of GIT Equity Trust Worldwide Growth Portfolio, (the
"Portfolio"), its client, with whom Customer has a Custody
Agreement, and, Portfolio is a third party beneficiary of
this Agreement between Customer and Custodian.
1. Employment of Custodian. The Customer hereby employs
the Custodian as custodian of all assets of the Customer
which are delivered to and accepted by the Custodian or any
of its subcustodians (as that term is defined in Section 5)
anywhere in the world (the "Property") pursuant to the terms
and conditions set fort herein. Without limitation, such
Property shall include stocks and other equity interests of
every type, evidences of indebtedness, other instruments
representing same or rights or obligations to received,
purchase, deliver or sell same and other non-cash investment
property of the Customer ("Securities") and cash from
whatever source and in whatever currency ("Cash"). The
Custodian shall not be responsible for any property of the
Customer held or received by the Customer or others and not
delivered to the Custodian or any of its subcustodian.
2. Custody Account. The Custodian agrees to establish and
maintain a custody account in the name of the Customer (the
"Account") for any and all Property from time received and
accepted by the Custodian or nay of its subcustodians for
the account of the Customer. The Customer acknowledges its
responsibility as a principal for all of its obligations to
the Custodian arising under or in connection with this
Agreement, notwithstanding that it may be acting on behalf
of Portfolio and warrants its authority to deposit in the
Account and Property received therefor by the Custodian
shall not be subject to, nor shall its rights and
obligations under this Agreement or with respect to the
Account be affected by, any agreement between the Customer
and other person.
The Custodian shall hold, keep safe and protect as custodian
in the Account, on behalf of the Customer, all Property.
All transactions, including, but not limited to, foreign
exchange transactions, involving the Property shall be
executed or settled solely in accordance with Instructions
(as that term is defied in Section 10), except that until
the Custodian receives Instructions to the contrary, the
Custodian will:
(a) collect all interest and dividends and all other income
payments whether paid in cash or in kind, on the Property,
as the same become payable and credit the same to the
Account;
(b) present for payment all Securities held in the Account
which are called, redeemed or retired or otherwise become
payable and all coupons and other income items which call
for payment upon presentation and hold the cash received in
the Account pursuant to this Agreement;
(c) exchange Securities where the exchange is purely
ministerial (including, without limitation, the exchange of
temporary securities for those in definitive form and the
exchange of warrants, or other documents of entitlement to
securities, for the Securities themselves);
(d) whenever notification of a rights entitlement or a
fractional interest resulting from a rights issue, stock
dividend or stock split is received for the Account and such
rights entitlement or fractional interest bears and
expiration date, if after endeavoring to obtain the
Custodian's Instructions such Instructions are not received
in time for the Custodian to take timely action, sell in the
discretion of the Custodian (which sale the Customer hereby
authorizes the Custodian to make) such rights entitlement or
fractional interest and credit the Account with the net
proceeds of such sale;
(e) executed in the Customer's name for the Account,
whenever the Custodian deems it appropriate, such ownership
and other certificates as may be required to obtain the
payment of income from the Property; and
(f) pay for the Account, any and all taxes and levies in the
nature of taxes imposed on income on the Property by any
governmental authority. In the event there is insufficient
Cash available in the Account to pay such taxes and levies,
the Custodian shall notify the Customer of the amount of the
shortfall and the Customer, at its option, may deposit
additional Cash in the Account or take steps to have
sufficient Cash available. The Customer agrees, when and if
requested by the Custodian and required in connection with
the payment of any such taxes to cooperate with the
Custodian in furnishing information, executing documents or
otherwise.
The Custodian shall deliver, subject to Section 12 below,
and all Property in the Account in accordance with
instructions and in connection therewith, the Customer will
accept delivery of Securities of the same class and
denomination in place of those contained in the Account.
Neither the Custodian nor any subcustodian shall have any
duty or responsibility to see to the application of any
Property withdrawn from the Account upon Instructions.
Except as otherwise may be agreed upon by the parties
hereto, the Custodian shall not be required to comply with
any Instructions to settle the purchase of any Securities
for the Account unless there is sufficient Cash in the
Account at the time or to settle the sale of any Securities
form the Account unless such Securities are in deliverable
form. Notwithstanding the foregoing, if the purchase price
of such Securities exceeds the amount of Cash in the Account
at the time of such purchase, the Custodian may, in its sole
discretion, advance the amount of the difference in order to
settle the purchase of such Securities. The amount of any
such advance shall be deemed a loan from the Custodian to
the Customer payable on demand and bearing interest accruing
from the date such loan is made to but not including the
date such loan is repaid at a rate per annum customarily
charged by the Custodian on similar loans.
3. Records, Ownership of Property and Statements. The
ownership of the Property whether Securities, Cash and/or
other property, and whether held by the Custodian or a
subcustodian or in a securities depository or clearing
agency as hereinafter authorized, shall be clearly recorded
on the
Custodian's books as belonging to the Account and not for
the Custodian's own interest. The Custodian shall keep
accurate and detailed accounts of all investments, receipts,
disbursements and other transactions for the Account. All
account, books and records of the Custodian relating thereto
shall be open to inspection and audit at all reasonable
times during normal business hours by any person designated
by the Customer. The Custodian will supply to the Customer
from time to time, as mutually agreed upon, a statement in
respect to any Property in the Account held by the Custodian
or by a subcustodian. In the absence of the filing in
writing with the Custodian by the Customer of exceptions or
objections to any such statement within sixty (60) days of
the mailing thereof, the Customer shall be deemed to have
approved such statement; and in such case or upon written
approval of the Customer of any such statement, the
Custodian shall, to the extent permitted by law, be
released, relieved and discharged with respect to all
matters and things set forth in such statement as though
such statement had been settled by the decree of a court of
competent jurisdiction in any action in which the Customer
and all persons having any equity interest in the Customer
were parties.
4. Maintenance of Property Outside of the United States.
Property in the Account may be held in a country or other
jurisdiction outside of the United States; provided that (a)
with respect to Securities, such country or other
jurisdiction shall be one in which the principal trading
market for such Securities is located or the country or
other jurisdiction in which such Securities are to be
presented for payment or acquired for the Account and (b)
with respect to cash, the amount thereof to be maintained in
any country or other jurisdiction shall be an amount which
is deemed necessary to settle transactions relating to
Securities purchased for the Account in such country or
jurisdiction or which is received in connection with the
holding of such Securities in the Account.
5 Subcustodians and Securities Depositories. The Custodian
may employ, directly or in directly, one or more
subcustodians to assist in the performance of its
obligations hereunder; provided however, that the employment
of any such subcustodians (other than any such subcustodian
which is a securities depository or clearing agency) the
Custodian shall only be responsible or liable for loses
arising from such employment caused by the Custodian's own
failure to exercise reasonable care.
The Customer authorizes and instructs the Custodian to hold
the Property in the Account in custody accounts which have
been established by the Custodian with one of its branches,
a branch of another U.S. bank, a foreign bank or trust
company acting as custodian or a securities depository in
which the Custodian participants. Hereinafter, the term
"subcustodian" will refer to any third-party agent referred
to in the first sentence of this paragraph which has entered
into an agreement with the Custodian of the type
contemplated hereunder regarding Securities and/or Cash held
in or to be acquired for the Account. In addition the
Customer also authorizes the Custodian to authorize any
subcustodian to hold the Property in the Account in one or
more accounts with securities depositories or clearing
agencies in which such subcustodian participates subject to
the provisions set forth below. The Custodian shall select
in its sole discretion the entity or entities in the custody
of which any of the Securities may be so maintained or with
which any Cash may be so deposited. Furthermore, any entity
so selected in authorized to hold such Securities or Cash in
its account with any securities depository or clearing
agency in which it participates.
6. Use of Subcustodian. With respect to Securities in the
Account which are maintained by the Custodian in the custody
of a subcustodian pursuant to Section 5,
(a) The Custodian will identify on its books as belonging to
the Customer any Securities held by such subcustodian.
(b) In the event that a subcustodian permits any of the
Securities placed in its care to be held in a securities
depository or clearing agency, such subcustodian will be
required by its agreement with the Custodian to identify on
its books such Securities as being held for the account of
the Custodian for its customers.
(c) Any Securities in the Account held by a subcustodian
will be subject only to the instructions of the Custodian or
its agents unless specifically otherwise authorized by the
Custodian on an exception basis; and any Securities held in
a securities depository or clearing agency for the account
of the Custodian or a subcustodian will be subject only to
the instructions of the Custodian or such subcustodian, as
the case may be.
(d) Securities deposited with a subcustodian will be
maintained in an account holding only assets for customers
of the Custodian
(e) Any agreement the Custodian shall enter into with a
subcustodian with respect to the holding of securities shall
require that (i) the Securities are not subject to any
right, charge, security interest lien or claim of any kind
in favor of such subcustodian except a claim for payment in
accordance with such agreement for their safe custody or
administration and expenses related thereto and (ii)
beneficial ownership of such Securities be freely
transferable without the payment of money or value other
than for safe custody or administration and expenses related
thereto.
(f) Upon request by the Customer, the Custodian will
identify the name, address and principal place of business
of any subcustodian and the name and address of the
governmental agency or other regulatory authority that
supervises or regulates such subcustodian.
7. Holding of Securities, Nominees, etc. Securities in the
Account which are held by the Custodian or any subcustodian
may be held by such entity in the name of the Customer, in
its own name, in the name of its nominee or in bearer form.
Securities which are held with a subcustodian or are
eligible for deposit in a securities depository as provided
above may be maintained with the subcustodian or depository,
as the case may be, in an account for the Custodian's or
subcustodian's customers. The Custodian or subcustodian, as
the case may be, may combine certificates of the same issue
held by it as fiduciary or as a custodian. In the event
that any Securities in the name of the Custodian or its
nominee or held by one of its subcustodians and registered
in the name of such subcustodian or its nominee are called
for partial redemption by the issuer or such Security, the
Custodian may, subject to the rules or regulations
pertaining to allocation of any securities depository in
which such Securities have been deposited, allot, or cause
to allotted, the called portion to the respective beneficial
holders of such class of security in any manner the
Custodian deems to fair and equitable.
8. Proxies, etc. With respect to any proxies, notices,
reports other communications relative to any of the
Securities in the Account, the Custodian shall perform such
services relative thereto as may be agreed upon between the
Custodian and the Customer. Neither the Custodian nor its
nominees or agents shall vote upon or in respect of any of
the Securities in the Account, execute any form of proxy to
vote thereon, or give any consent or take any action (except
as provided in Section 2) with respect the thereto except
upon the receipt of Instructions from the Customer relative
thereto.
9. Settlement Procedures Settlement and payment for
Securities received for the Account and delivery of
Securities maintained for the Account may be effected in
accordance with the customary or established securities
trading or securities processing practices and procedures in
the jurisdiction or market in which the transaction occurs,
including, without limitation, delivering Securities to the
purchase thereof or to a dealer therefor (or an agent for
such purchaser or dealer) against a receipt with the
expectation of receiving later payment for such Securities
from such purchaser or dealer, and in accordance with the
standard operating procedures of the Custodian in effect
from time to time for that jurisdiction or market.
10. Instructions. The term "Instruction" means instructions
from the Customer in respect of any of the Custodian's
duties hereunder which have been received by the Custodian
at its address set forth in Section 15 below in writing or
by tested telex signed or given by such one or more person
or persons as the Customer shall have from time to time
authorized to give the particular class of Instructions in
question and whose name ad (if applicable) signature and
office address have been filed with the Custodian, or upon
receipt of such other form of instructions as the Customer
may from time to time authorized in writing and which the
Custodian agrees to accept. The Custodian shall have the
right to assume in the absence of notice to the contrary
from the Customer that any person whose name is on file with
the Custodian pursuant to this Section 10 has been
authorized by the Customer to give the Instructions in
question and that such authorization has not been revoked.
11. Standard of Care. The Custodian shall be responsible
for the performance of only such duties as are set forth
herein or contained in Instructions given to he Custodian
which are not contrary to the provisions of this Agreement.
The Custodian will use reasonable care with respect to the
safekeeping of Securities in the Account and in carrying out
its obligations under the Agreement. So long as and to the
extent that it has exercised reasonable care, the Custodian
shall not be responsible for the title, validity or
genuineness of any Property or other property or evidence or
title thereto received by it or delivered by it pursuant to
this Agreement and shall be held harmless in acting upon,
and may conclusively rely on, without liability for any loss
resulting therefrom, any notice, request, consent,
certificate or other instrument reasonably believed by it to
be genuine and to be signed or furnished by the proper party
or parties, including, without limitation, Instructions, and
shall be indemnified by the Customer for any losses,
damages, costs and expenses (including, without limitation,
the fees and expenses of counsel) incurred by the Custodian
and arising out of action take or omitted in good faith by
the Custodian hereunder or under any Instructions. The
Custodian shall be liable to the Customer for any loss which
shall occur directly as the result of the failure of a
subcustodian (other than any subcustodian which is a
securities depository or clearing agency the actions or
omissions for which the Custodian's liability and
responsibility is set forth in the last proviso of the first
paragraph of Section 5) to exercise reasonable care with
respect to the safekeeping of such Securities. In the event
of any loss to the Customer by reason of the failure of the
Custodian or its subcustodian to utilize reasonable care,
the Custodian shall be liable to the Customer to the extent
of the Customer's actual damages at the time such loss was
discovered without reference to any special conditions or
circumstances. In no event shall the
Custodian be liable for any consequential or special
damages. The Custodian shall be entitled to rely, and may
act, on advice of counsel (who may be counsel for the
Customer) on all matters and shall be without liability for
any action reasonably taken or omitted pursuant to such
advice.
All collections of funds or other property paid or
distributed in respect of Securities in the Account,
including funds involved in third-party foreign exchange
transactions, shall be made at the risk of the Customer.
The Custodian shall have no liability for any loss
accessioned by delay in the actual receipt of notice by the
Custodian or by its subcustodian of any payment, reception
or other transaction regarding Securities in the Accounting
respect of which the Custodian has agreed to take action as
provided in Section 2 hereof. The Custodian shall not be
liable for any loss resulting from, or caused by, or
resulting from acts of governmental authorities (whether de
jur or de facto), including, without limitation,
nationalization, expropriation, and the imposition of
currency restrictions; acts of war, terrorism, insurrection
or revolution; strikes or work stoppages; the inability of a
local clearing and settlement system to settle transactions
for reasons beyond the control of the Custodian; hurricane,
cyclone, earthquake, volcanic eruption, nuclear fusion,
radioactivity or other acts of God.
The provisions of this Section shall survive termination of
this Agreement.
12. Fees and Expenses. The Customer agrees to pay to the
Custodian such compensation for its services pursuant to
this Agreement as may be mutually agreed upon in writing
from time to time and the Custodian's out-of-pocket or
incidental expenses, including (but not limitation) legal
fees. The Customer hereby agrees to hold the Custodian
harmless from any liability or loss resulting from any taxes
or other governmental charges, and any expense related
thereto, which may be imposed, or assessed with respect to
any Property in the Account and also agrees to hold the
Custodian, its subcustodians, and their respective nominees
harmless from any liability as a record holder of Property
in the Account. The Custodian is authorized to charge any
account of the Customer for such items. The provisions of
this Section shall survive the termination of this
Agreement.
13. Amendment, Modifications, etc. No provisions of this
Agreement may amended, modified or waived except in writing
signed by the parties hereto.
14. Termination. This Agreement may be terminated by the
Customer or the Custodian by ninety (90) days' notice to the
other; provided that notice by the Customer shall specify
the names of the persons to who the Custodian shall deliver
the Securities in the Account and to whom the Cash in the
Account shall be paid. If notice of termination is given by
the Custodian, the Customer shall, within ninety (90) days
following the giving of such notice, deliver to the
Custodian a written notice specifying the names of the
persons to whom the Custodian shall deliver the Securities
in the Account and to whom the Cash in the Account shall be
paid. In either case, the Custodian will deliver such
Securities and Cash to the persons so specified, after
deducting therefrom any amounts which the Custodian
determines to be owed to it under Section 12. In addition,
the Custodian may in its discretion withhold from such
delivery such Cash and Securities as may be necessary to
settle transactions pending at the time of such delivery.
If within ninety (90) days following the giving of a notice
of termination by the Custodian, the Custodian does not
receive from the Customer a written notice specifying the
names of the persons to whom the Cash in the Account shall
be paid, the Custodian, at its election, may deliver such
Securities and pay such Cash to a ban or trust company doing
business in the State of New York to be held and disposed of
pursuant to the provisions of this Agreement, or may
continue to hold such Securities and Cash until a written
notice as aforesaid is delivered to the Custodian.
15. Notices. Expect as otherwise provided in this Agreement,
all requests, demands or other communications between the
parties or notices in connection herewith (a) shall be in
writing, had delivered or sent by telex, telegram, facsimile
or cable, addressed, if to the Customer, its address set
forth on the signature page hereof and, if to the Custodian,
to c/o BTNY Services, Inc., ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Global Securities Services.
(Telex ▇▇. ▇▇▇▇▇▇ ▇▇▇▇ ▇▇ Answerback: BANTRUS) (Facsimile
No.201-860-7290), or in either case such other address as
shall have been furnished to the receiving party pursuant to
the provisions hereof and (b) shall be deemed effective when
received, or, in the case of a telex, when sent to the
proper number and acknowledged by a proper answerback.
16. Security for Payment. To secure payment of all fees and
expenses payable to Custodian hereunder, including but not
limited to amounts payable pursuant to indemnification
provisions and to the last paragraph of Section 2, the
Customer hereby grants to Custodian a continuing security
interest in and right to setoff against the Account and all
Property held therein from time to time in the full amount
of such obligations; provided that, if the Account consists
of more than one portfolio and the obligations secured
pursuant to this Section 16 can be allocated to a specific
portfolio, such security interest and right of setoff will
be limited to any amounts owned hereunder, Custodian shall
be entitled to use available Cash in the Account or such
applicable portion thereof held for a specific portfolio, as
the case may be, and to dispose of Securities in the Account
or such applicable portion thereof as is necessary. In the
event Securities in the Account or such applicable portion
thereof are insufficient to discharge such obligations, the
Customer hereby grants Custodian a continuing security
interest in and right of setoff against the balance from
time to time in any non-custodian account of the Customer
(the "Pledged Balances"), and Custodian may, at any time or
from time to time at Custodian's sole option and without
notice appropriate and apply toward the payment of such
obligations, the Pledged Balances. If at any time Property
in the Account or such applicable portion thereof and the
Pledge Balances are insufficient to fully collateralize such
obligations, Customer shall provide to Custodian additional
collateral in form and amount satisfactory to Custodian and
shall grant to Custodian a continuing security interest in
and right of setoff against such collateral. In any such
case and without limiting the foregoing, Custodian shall be
entitled to take such other action(s) or exercise such other
options, powers and rights as Custodian now or hereafter has
a secured creditor under the New York Uniform Commercial
Code or any other applicable law.
17. Governing Law and Successors and Assigns. This
Agreement shall be governed by the law of the State of New
York and shall not be assignable by either party, but shall
bind the successors in interest of the Customer and
Custodian.
18. Publicity Customer shall furnish to Custodian at its
office referred to in Section 15, above, prior to any
distribution thereof, copies of any material prepared for
distribution to any persons who not parties hereto that
refer in any way Custodian. Customer shall not distribute
or permit the distribution of such materials if Custodian
reasonable objects in writing within ten (10) business days
(or such other time as may be mutually agreed) after receipt
thereof. The provisions of this Section shall survive the
termination of this Agreement.
19. Submission to Jurisdiction. To the extent, if any, to
which the Customer or any of its respective properties may
be deemed to have or hereafter to acquire immunity, on the
ground of sovereignty or otherwise, from any judicial
process or proceeding to enforce this Agreement or to collect
amounts due hereunder (including, without limitation,
attachment proceedings prior to judgment or in aid of
execution) in any jurisdiction, the Customer hereby waives
such immunity and agrees not to claim the same. Any suit,
action or proceedings arising out of this Agreement may be
instituted in any State or Federal court sitting in the City
of ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America,
and the Customer irrevocably submits to the non-exclusive
jurisdiction of any such court in any such suit, action or
proceeding and waives, to the fullest extent permitted by
law, any objection which it may now or hereafter have to
laying of venue of such suit, action or proceeding brought
in such a court and any claim that such suit, action or
proceeding brought in an inconvenient forum. The Customer
hereby irrevocably designates, appoints and empowers, as its
authorized agent to receive, for and on behalf of actions or
proceedings may be brought in any of the aforementioned
courts, and such service of process shall be deemed complete
upon the date of delivery thereof to such agent whether or
not such agent gives notice thereof to the Customer or upon
the earliest of any other date permitted by applicable law.
The Customer further irrevocably consents to the service of
process out of any of the aforementioned courts in any such
action or proceeding by the mailing of copies thereof by
certified air mail, postage prepaid, to the Customer at its
address set forth below or in any other manner permitted by
law, such service to become effective upon the earlier of
(i) the date fifteen (15) days after such mailing or (ii)
any earlier of date permitted by applicable law. The
Customer agrees that it will at all times continuously
maintain an agent to receive service of process in the City
and State of New York on behalf of itself and its properties
with respect to this Agreement and in the event that, for
any reason, the agent named above or its successor shall no
longer serve as agent of the Customer to receive service of
process in the City and State of New York on its behalf, the
Customer shall promptly appoint a successor to so serve and
shall advise the Custodian thereof.
20. Headings. The headings of the paragraphs hereof are
included for convenience of reference only and do not form a
part of this Agreement.
Star Bank, N.A.
By: (signature)
Title:
Address:
Bankers Trust Company
By: (signature)
Title: