CUSTODY AGREEMENT Dated June 1, 2009 Between UMB BANK, N.A. and DRIEHAUS MUTUAL FUNDS
EXHIBIT (G)(I)
Dated June 1, 2009
Between
UMB BANK, N.A.
and
TABLE OF CONTENTS
| SECTION | PAGE | |||
1. Appointment of Custodian |
1 | |||
2. Definitions |
1 | |||
(a) Securities |
1 | |||
(b) Assets |
1 | |||
(c) Instructions and Special Instructions |
1 | |||
3. Delivery of Corporate Documents |
2 | |||
4. Powers and Duties of Custodian and Domestic Subcustodian |
2 | |||
(a) Safekeeping |
3 | |||
(b) Manner of Holding Securities |
3 | |||
(c) Free Delivery of Assets |
4 | |||
(d) Exchange of Securities |
4 | |||
(e) Purchases of Assets |
4 | |||
(f) Sales of Assets |
5 | |||
(g) Options |
5 | |||
(h) Futures Contracts |
6 | |||
(i) Segregated Accounts |
6 | |||
(j) Depositary Receipts |
6 | |||
(k) Corporate Actions, Put Bonds, Called Bonds, Etc. |
6 | |||
(l) Interest Bearing Deposits |
7 | |||
(m) Foreign Exchange Transactions |
7 | |||
(n) Pledges or Loans of Securities |
8 | |||
(o) Stock Dividends, Rights, Etc. |
8 | |||
(p) Routine Dealings |
8 | |||
(q) Collections |
8 | |||
(r) Bank Accounts |
9 | |||
(s) Dividends, Distributions and Redemptions |
9 | |||
(t) Proceeds from Shares Sold |
9 | |||
(u) Proxies and Notices; Compliance with the Shareholders Communication Act of 1985 |
9 | |||
(v) Books and Records |
9 | |||
(w) Opinion of Fund’s Independent Registered Public Accountants |
10 | |||
(x) Reports by Independent Certified Public Accountants |
10 | |||
(y) Bills and Others Disbursements |
10 | |||
5. Subcustodians |
10 | |||
(a) Domestic Subcustodians |
10 | |||
(b) Foreign Subcustodians |
10 | |||
(c) Interim Subcustodians |
11 | |||
(d) Special Subcustodians |
11 | |||
(e) Termination of a Subcustodian |
11 | |||
(f) Certification Regarding Foreign Subcustodians |
11 | |||
6. Standard of Care |
12 | |||
(a) General Standard of Care |
12 | |||
(b) Actions Prohibited by Applicable Law, Events Beyond Custodian’s Control, Armed
Conflict, Sovereign Risk, Etc. |
12 | |||
(c) Liability for Past Records |
12 | |||
| SECTION | PAGE | |||
(d) Advice of Counsel |
12 | |||
(e) Advice of the Fund and Others |
12 | |||
(f) Instructions Appearing to be Genuine |
13 | |||
(g) Exceptions from Liability |
13 | |||
7. Liability of the Custodian for Actions of Others |
13 | |||
(a) Domestic Subcustodians |
13 | |||
(b) Liability for Acts and Omissions of Foreign Subcustodians |
13 | |||
(c) Securities Systems, Interim Subcustodians, Special Subcustodians, Securities
Depositories and Clearing Agencies |
13 | |||
(d) Defaults or Insolvency of Brokers, Banks, Etc. |
14 | |||
(e) Reimbursement of Expenses |
14 | |||
8. Indemnification |
14 | |||
(a) Indemnification by the Funds |
14 | |||
(b) Indemnification by the Custodian |
14 | |||
9. Advances |
14 | |||
10. Liens |
15 | |||
11. Compensation |
15 | |||
12. Powers of Attorney |
15 | |||
13. Termination and Assignment |
15 | |||
14. Additional Funds |
15 | |||
15. Notices |
16 | |||
16. Miscellaneous |
16 | |||
This agreement made as of this 1st day of June, 2009, between UMB Bank, n.a., a
national banking association with its principal place of business located in Kansas City, Missouri
(hereinafter the “Custodian”), and each of the Funds listed on Appendix B hereof, together with
such additional Funds which shall be made parties to this Agreement by the execution of Appendix B
hereto (individually, a “Fund” and collectively, the “Funds”).
WITNESSETH:
WHEREAS, each Fund is registered as an open-end management investment company under the
Investment Company Act of 1940, as amended; and
WHEREAS, each Fund desires to appoint the Custodian as its custodian for the custody of Assets
(as hereinafter defined) owned by such Fund which Assets are to be held in such accounts as such
Fund may establish from time to time; and
WHEREAS, the Custodian is willing to accept such appointment on the terms and conditions
hereof.
NOW, THEREFORE, in consideration of the mutual promises contained herein, the parties hereto,
intending to be legally bound, mutually covenant and agree as follows:
1. APPOINTMENT OF CUSTODIAN.
Each Fund hereby constitutes and appoints the Custodian as custodian of Assets belonging to
each such Fund which have been or may be from time to time deposited with the Custodian. The
Custodian accepts such appointment as a custodian and agrees to perform the duties and
responsibilities of the Custodian as set forth herein on the conditions set forth herein.
2. DEFINITIONS.
For purposes of this Agreement, the following terms shall have the meanings so indicated:
(a) “Security” or “Securities” shall mean stocks, bonds, bills, rights, script, warrants,
interim certificates and all negotiable or nonnegotiable paper commonly known as Securities and
other instruments or obligations.
(b) “Assets” shall mean Securities, monies and other property held by the Custodian for the
benefit of a Fund.
(c)(1) “Instructions,” as used herein, shall mean: (i) a tested telex, a written (including,
without limitation, facsimile transmission) request, direction, instruction or certification signed
or initialed by or on behalf of a Fund by an Authorized Person; (ii) a telephonic or other oral
communication from a person the Custodian reasonably believes to be an Authorized Person; or (iii)
a communication effected directly between an electro-mechanical or electronic device or system
(including, without limitation, computers) on behalf of a Fund. Custodian recommends that any
Instructions transmitted by a Fund via email be done so only through a secure system or process.
Instructions in the form of oral communications shall be confirmed by the appropriate Fund by
tested telex or in writing in the manner set forth in clause (i) above, but the lack of such
confirmation shall in no way affect any action taken by the Custodian in reliance upon such oral
Instructions prior to the Custodian’s receipt of such confirmation. Each Fund authorizes the
Custodian to record any and all telephonic or other oral Instructions communicated to the
Custodian.
(c)(2) “Special Instructions,” as used herein, shall mean Instructions countersigned or
confirmed in writing by the Treasurer or any Assistant Treasurer of a Fund or any other person
designated by the Treasurer of such Fund in writing, which countersignature or confirmation shall
be included on the same instrument containing the Instructions or on a separate instrument relating
thereto.
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(c)(3) Instructions and Special Instructions shall be delivered to the Custodian at the
address and/or telephone, facsimile transmission or telex number agreed upon from time to time by
the Custodian and each Fund.
(c)(4) Where appropriate, Instructions and Special Instructions shall be continuing
instructions.
3. DELIVERY OF CORPORATE DOCUMENTS.
Each of the parties to this Agreement represents that its execution does not violate any of
the provisions of its respective charter, articles of incorporation, articles of association or
bylaws and all required corporate action to authorize the execution and delivery of this Agreement
has been taken.
Each Fund has furnished the Custodian with copies, properly certified or authenticated, with
all amendments or supplements thereto, of the following documents:
| (a) | Certificate of Incorporation (or equivalent document) of the Fund as in effect on the date hereof; | ||
| (b) | By-Laws of the Fund as in effect on the date hereof; | ||
| (c) | Resolutions of the Board of Directors of the Fund appointing the Custodian and approving the form of this Agreement; and | ||
| (d) | The Fund’s current prospectus and statements of additional information. |
Each Fund shall promptly furnish the Custodian with copies of any updates, amendments or
supplements to the foregoing documents.
In addition, each Fund has delivered or will promptly deliver to the Custodian, copies of the
resolution(s) of its Board of Directors or Trustees and all amendments or supplements thereto,
properly certified or authenticated, designating certain officers or employees of each such Fund
who will have continuing authority to certify to the Custodian: (a) the names, titles, signatures
and scope of authority of all persons authorized to give Instructions or any other notice, request,
direction, instruction, certificate or instrument on behalf of each Fund, and (b) the names, titles
and signatures of those persons authorized to countersign or confirm Special Instructions on behalf
of each Fund (in both cases collectively, the “Authorized Persons” and individually, an “Authorized
Person”). Such resolutions and certificates may be accepted and relied upon by the Custodian as
conclusive evidence of the facts set forth therein and shall be considered to be in full force and
effect until delivery to the Custodian of a similar resolution or certificate to the contrary.
Upon delivery of a certificate which deletes or does not include the name(s) of a person previously
authorized to give Instructions or to countersign or confirm Special Instructions, such persons
shall no longer be considered an Authorized Person authorized to give Instructions or to
countersign or confirm Special Instructions. Unless the certificate specifically requires that the
approval of anyone else will first have been obtained, the Custodian will be under no obligation to
inquire into the right of the person giving such Instructions or Special Instructions to do so.
Notwithstanding any of the foregoing, no Instructions or Special Instructions received by the
Custodian from a Fund will be deemed to authorize or permit any director, trustee, officer,
employee, or agent of such Fund to withdraw any of the Assets of such Fund upon the mere receipt of
such authorization, Special Instructions or Instructions from such director, trustee, officer,
employee or agent.
4. POWERS AND DUTIES OF CUSTODIAN AND DOMESTIC SUBCUSTODIAN.
Except for Assets held by any Subcustodian appointed pursuant to Sections 5(b), (c), or (d) of
this Agreement, the Custodian shall have and perform the powers and duties hereinafter set forth in
this Section 4. For purposes of this Section 4 all references to powers and duties of the
“Custodian” shall also refer to any Domestic Subcustodian appointed pursuant to Section 5(a).
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(a) Safekeeping.
The Custodian will keep safely the Assets of each Fund which are delivered to it from time to
time. The Custodian shall not be responsible for any property of a Fund held or received by such
Fund and not delivered to the Custodian.
(b) Manner of Holding Securities.
(1) The Custodian shall at all times hold Securities of each Fund either: (i) by physical
possession of the share certificates or other instruments representing such Securities in
registered or bearer form; or (ii) in book-entry form by a Securities System (as hereinafter
defined) in accordance with the provisions of sub-paragraph (3) below.
(2) The Custodian may hold registrable portfolio Securities which have been delivered to it
in physical form, by registering the same in the name of the appropriate Fund or its nominee, or in
the name of the Custodian or its nominee, for whose actions such Fund and Custodian, respectively,
shall be fully responsible. Upon the receipt of Instructions, the Custodian shall hold such
Securities in street certificate form, so called, with or without any indication of fiduciary
capacity. However, unless it receives Instructions to the contrary, the Custodian will register
all such portfolio Securities in the name of the Custodian’s authorized nominee. All such
Securities shall be held in an account of the Custodian containing only assets of the appropriate
Fund or only assets held by the Custodian as a fiduciary, provided that the records of the
Custodian shall indicate at all times the Fund or other customer for which such Securities are held
in such accounts and the respective interests therein.
(3) The Custodian may deposit and/or maintain domestic Securities owned by a Fund in, and
each Fund hereby approves use of: (a) The Depository Trust Company; and (b) any book-entry system
as provided in (i) Subpart O of Treasury Circular ▇▇. ▇▇▇, ▇▇ ▇▇▇ 306.115, (ii) Subpart B of
Treasury Circular Public Debt Series ▇▇. ▇▇-▇▇, ▇▇ ▇▇▇ 350.2, or (iii) the book-entry regulations
of federal agencies substantially in the form of 31 CFR 306.115. Upon the receipt of Special
Instructions, the Custodian may deposit and/or maintain domestic Securities owned by a Fund in any
other domestic clearing agency registered with the Securities and Exchange Commission (“SEC”) under
Section 17A of the Securities Exchange Act of 1934 (or as may otherwise be authorized by the SEC to
serve in the capacity of depository or clearing agent for the Securities or other assets of
investment companies) which acts as a Securities depository. Each of the foregoing shall be
referred to in this Agreement as a “Securities System,” and all such Securities Systems shall be
listed on the attached Appendix A. Use of a Securities System shall be in accordance with
applicable Federal Reserve Board and SEC rules and regulations, if any, and subject to the
following provisions:
(i) The Custodian may deposit the Securities directly or through one or more agents or
Subcustodians which are also qualified to act as custodians for investment companies.
(ii) The Custodian shall deposit and/or maintain the Securities in a Securities System,
provided that such Securities are represented in an account (“Account”) of the Custodian in the
Securities System that includes only assets held by the Custodian as a fiduciary, custodian or
otherwise for customers.
(iii) The books and records of the Custodian shall at all times identify those Securities
belonging to any one or more Funds which are maintained in a Securities System.
(iv) The Custodian shall pay for Securities purchased for the account of a Fund only upon (a)
receipt of advice from the Securities System that such Securities have been transferred to the
Account of the Custodian in accordance with the rules of the Securities System, and (b) the making
of an entry on the records of the Custodian to reflect such payment and transfer for the account of
such Fund. The Custodian shall transfer Securities sold for the account of a Fund only upon (a)
receipt of advice from the Securities System that payment for such Securities has been transferred
to the Account of the Custodian in accordance with the rules of the Securities System, and (b) the
making of an entry on the records of the Custodian to reflect such transfer and payment for the
account of such Fund. Copies of all advices from the Securities System relating to transfers of
Securities for the account of a Fund shall be maintained for such Fund by the Custodian. The
Custodian shall deliver to a Fund on the
3
next succeeding business day daily transaction reports
that shall include each day’s transactions in the Securities System for the account of such Fund.
Such transaction reports shall be delivered to such Fund or any agent designated by such Fund
pursuant to Instructions, by computer or in such other manner as such Fund and Custodian may agree.
(v) The Custodian shall, if requested by a Fund pursuant to Instructions, provide such Fund
with reports obtained by the Custodian or any Subcustodian with respect to a Securities System’s
accounting system, internal accounting control and procedures for safeguarding Securities deposited
in the Securities System.
(vi) Upon receipt of Special Instructions, the Custodian shall terminate the use of any
Securities System on behalf of a Fund as promptly as practicable and shall take all actions
reasonably practicable to safeguard the Securities of such Fund maintained with such Securities
System.
(c) Free Delivery of Assets.
Notwithstanding any other provision of this Agreement and except as provided in Section 3
hereof, the Custodian, upon receipt of Special Instructions, will undertake to make free delivery
of Assets, provided such Assets are on hand and available, in connection with a Fund’s transactions
and to transfer such Assets to such broker, dealer, Subcustodian, bank, agent, Securities System or
otherwise as specified in such Special Instructions.
(d) Exchange of Securities.
Upon receipt of Instructions, the Custodian will exchange portfolio Securities held by it for
a Fund for other Securities or cash paid in connection with any reorganization, recapitalization,
merger, consolidation, or conversion of convertible Securities, and will deposit any such
Securities in accordance with the terms of any reorganization or protective plan.
Without Instructions, the Custodian is authorized to exchange Securities held by it in
temporary form for Securities in definitive form, to surrender Securities for transfer into a name
or nominee name as permitted in Section 4(b)(2), to effect an exchange of shares in a stock split
or when the par value of the stock is changed, to sell any fractional shares, and, upon receiving
payment therefor, to surrender bonds or other Securities held by it at maturity or call.
(e) Purchases of Assets.
(1) Securities Purchases. In accordance with Instructions, the Custodian shall, with
respect to a purchase of Securities, pay for such Securities out of monies held for a Fund’s
account for which the purchase was made, but only insofar as monies are available therein for such
purpose, and receive the portfolio Securities so purchased. Unless the Custodian has received
Special Instructions to the contrary, such payment will be made only upon receipt of Securities by
the Custodian, a clearing corporation of a national Securities exchange of which the Custodian is a
member, or a Securities System in accordance with the provisions of Section 4(b)(3) hereof.
Notwithstanding the foregoing, upon receipt of Instructions: (i) in connection with a repurchase
agreement, the Custodian may release funds to a Securities System prior to the receipt of advice
from the Securities System that the Securities underlying such repurchase agreement have been
transferred by book-entry into the Account maintained with such Securities System by the Custodian,
provided that the Custodian’s instructions to the Securities System require that the Securities
System may make payment of such funds to the other party to the repurchase agreement only upon
transfer by book-entry of the Securities underlying the repurchase agreement into such Account;
(ii) in the case of Interest Bearing Deposits, currency deposits, and other deposits, foreign
exchange transactions, futures contracts or options, pursuant to Sections 4(g), 4(h), 4(l), and
4(m) hereof, the Custodian may make payment therefor before receipt of an advice of transaction;
and (iii) in the case of Securities as to which payment for the Security and receipt of the
instrument evidencing the Security are under generally accepted trade practice or the terms of the
instrument representing the Security expected to take place in different locations or through
separate parties, such as commercial paper which is indexed to foreign currency exchange rates,
derivatives and similar Securities, the Custodian may make payment for such Securities prior to
delivery thereof in accordance with such generally accepted trade practice or the terms of the
instrument representing such Security.
4
(2) Other Assets Purchased. Upon receipt of Instructions and except as otherwise
provided herein, the Custodian shall pay for and receive other Assets for the account of a Fund as
provided in Instructions.
(f) Sales of Assets.
(1) Securities Sold. In accordance with Instructions, the Custodian will, with
respect to a sale, deliver or cause to be delivered the Securities thus designated as sold to the
broker or other person specified in the Instructions relating to such sale. Unless the Custodian
has received Special Instructions to the contrary, such delivery shall be made only upon receipt of
payment therefor in the form of: (a) cash, certified check, bank cashier’s check, bank credit, or
bank wire transfer; (b) credit to the account of the Custodian with a clearing corporation of a
national Securities exchange of which the Custodian is a member; or (c) credit to the Account of
the Custodian with a Securities System, in accordance with the provisions of Section 4(b)(3)
hereof. Notwithstanding the foregoing, Securities held in physical form may be delivered and paid
for in accordance with “street delivery custom” to a broker or its clearing agent, against delivery
to the Custodian of a receipt for such Securities, provided that the Custodian shall have taken
reasonable steps to ensure prompt collection of the payment for, or return of, such Securities by
the broker or its clearing agent, and provided further that the Custodian shall not be responsible
for the selection of or the failure or inability to perform of such broker or its clearing agent or
for any related loss arising from delivery or custody of such Securities prior to receiving payment
therefor.
(2) Other Assets Sold. Upon receipt of Instructions and except as otherwise provided
herein, the Custodian shall receive payment for and deliver other Assets for the account of a Fund
as provided in Instructions.
(g) Options.
(1) Upon receipt of Instructions relating to the purchase of an option or sale of a covered
call option, the Custodian shall: (a) receive and retain confirmations or other documents, if any,
evidencing the purchase or writing of the option by a Fund; (b) if the transaction involves the
sale of a covered call option, deposit and maintain in a segregated account the Securities (either
physically or by book-entry in a Securities System) subject to the covered call option written on
behalf of such Fund; and (c) pay, release and/or transfer such Securities, cash or other Assets in
accordance with any notices or other communications evidencing the expiration, termination or
exercise of such options which are furnished to the Custodian by the Options Clearing Corporation
(the “OCC”), the securities or options exchanges on which such options were traded, or such other
organization as may be responsible for handling such option transactions.
(2) Upon receipt of Instructions relating to the sale of a naked option (including stock
index and commodity options), the Custodian, the appropriate Fund and the broker-dealer shall enter
into an agreement to comply with the rules of the OCC or of any registered national securities
exchange or similar organizations(s). Pursuant to that agreement and such Fund’s Instructions, the
Custodian shall: (a) receive and retain confirmations or other documents, if any, evidencing the
writing of the option; (b) deposit and maintain in a segregated account, Securities (either
physically or by book-entry in a Securities System), cash and/or other Assets; and (c) pay, release
and/or transfer such Securities, cash or other Assets in accordance with any such agreement and
with any notices or other communications evidencing the expiration, termination or exercise of such
option which are furnished to the Custodian by the OCC, the securities or options exchanges on
which such options were traded, or such other organization as may be responsible for handling such
option transactions. The appropriate Fund and the broker-dealer shall be responsible for
determining the quality and quantity of assets held in any segregated account established in
compliance with applicable margin maintenance requirements and the performance of other terms of
any option contract.
5
(h) Futures Contracts.
Upon receipt of Instructions, the Custodian shall enter into a futures margin procedural
agreement among the appropriate Fund, the Custodian and the designated futures commission merchant
(a “Procedural Agreement”). Under the Procedural Agreement the Custodian shall: (a) receive and
retain confirmations, if any, evidencing the purchase or sale of a futures contract or an option on
a futures contract by such Fund; (b) deposit and maintain in a segregated account cash, Securities
and/or other Assets designated as initial, maintenance or variation “margin” deposits intended to
secure such Fund’s performance of its obligations under any futures contracts purchased or sold, or
any options on futures contracts written by such Fund, in accordance with the provisions of any
Procedural Agreement designed to comply with the provisions of the Commodity Futures Trading
Commission and/or any commodity exchange or contract market (such as the Chicago Board of Trade),
or any similar organization(s), regarding such margin deposits; and (c) release Assets from and/or
transfer Assets into such margin accounts only in accordance with any such Procedural Agreements.
The appropriate Fund and such futures commission merchant shall be responsible for determining the
type and amount of Assets held in the segregated account or paid to the broker-dealer in compliance
with applicable margin maintenance requirements and the performance of any futures contract or
option on a futures contract in accordance with its terms.
(i) Segregated Accounts.
Upon receipt of Instructions, the Custodian shall establish and maintain on its books a
segregated account or accounts for and on behalf of a Fund, into which account or accounts may be
transferred Assets of such Fund, including Securities maintained by the Custodian in a Securities
System
pursuant to Paragraph (b)(3) of this Section 4, said account or accounts to be maintained (i) for
the purposes set forth in Sections 4(g), 4(h) and 4(n) and (ii) for the purpose of compliance by
such Fund with the procedures required by the SEC Investment Company Act Release Number 10666 or
any subsequent release or releases relating to the maintenance of segregated accounts by registered
investment companies, or (iii) for such other purposes as may be set forth, from time to time, in
Special Instructions. The Custodian shall not be responsible for the determination of the type or
amount of Assets to be held in any segregated account referred to in this paragraph, or for
compliance by the Fund with required procedures noted in (ii) above.
(j) Depositary Receipts.
Upon receipt of Instructions, the Custodian shall surrender or cause to be surrendered
Securities to the depositary used for such Securities by an issuer of American Depositary Receipts
or International Depositary Receipts (hereinafter referred to, collectively, as “ADRs”), against a
written receipt therefor adequately describing such Securities and written evidence satisfactory to
the organization surrendering the same that the depositary has acknowledged receipt of instructions
to issue ADRs with respect to such Securities in the name of the Custodian or a nominee of the
Custodian, for delivery in accordance with such instructions.
Upon receipt of Instructions, the Custodian shall surrender or cause to be surrendered ADRs to
the issuer thereof, against a written receipt therefor adequately describing the ADRs surrendered
and written evidence satisfactory to the organization surrendering the same that the issuer of the
ADRs has acknowledged receipt of instructions to cause its depository to deliver the Securities
underlying such ADRs in accordance with such instructions.
(k) Corporate Actions, Put Bonds, Called Bonds, Etc.
Upon receipt of Instructions, the Custodian shall: (a) deliver warrants, puts, calls, rights
or similar Securities to the issuer or trustee thereof (or to the agent of such issuer or trustee)
for the purpose of exercise or sale, provided that the new Securities, cash or other Assets, if
any, acquired as a result of such actions are to be delivered to the Custodian; and (b) deposit
Securities upon invitations for tenders thereof, provided that the consideration for such
Securities is to be paid or delivered to the Custodian, or the tendered Securities are to be
returned to the Custodian.
Notwithstanding any provision of this Agreement to the contrary, the Custodian shall take all
necessary action, unless otherwise directed to the contrary in Instructions, to comply with the
terms of all mandatory or compulsory
6
exchanges, calls, tenders, redemptions, or similar rights of
security ownership of which the Custodian receives notice through publications to which it normally
subscribes, and shall notify the appropriate Fund of such action in writing by facsimile
transmission or in such other manner as such Fund and Custodian may agree in writing.
The Fund agrees that if it gives an Instruction for the performance of an act on the last
permissible date of a period established by any optional offer or on the last permissible date for
the performance of such act, the Fund shall hold the Custodian harmless from any adverse
consequences in connection with acting upon or failing to act upon such Instructions.
(l) Interest Bearing Deposits.
Upon receipt of Instructions directing the Custodian to purchase interest bearing fixed term
and call deposits (hereinafter referred to, collectively, as “Interest Bearing Deposits”) for the
account of a Fund, the Custodian shall purchase such Interest Bearing Deposits in the name of such
Fund with such banks or trust companies, including the Custodian, any Subcustodian or any
subsidiary or affiliate of the Custodian (hereinafter referred to as “Banking Institutions”), and
in such amounts as such Fund may direct pursuant to Instructions. Such Interest Bearing Deposits
may be denominated in U.S. dollars or other currencies, as such Fund may determine and direct
pursuant to Instructions. The responsibilities of the Custodian to a Fund for Interest Bearing
Deposits issued by the Custodian shall be that of a U.S. bank for a similar deposit. With respect
to Interest Bearing Deposits other than those issued by the Custodian, (a) the Custodian shall be
responsible for the collection of income and the transmission of cash to and from such accounts;
and (b) the Custodian shall have no duty with respect to the selection of the Banking Institution
or for the failure of such Banking Institution to pay upon demand.
(m) Foreign Exchange Transactions.
(l) Each Fund hereby appoints the Custodian as its agent in the execution of all currency
exchange transactions. The Custodian agrees to provide exchange rate and U.S. Dollar information,
in writing, to the Funds. Such information shall be supplied by the Custodian at least by the
business day prior to the value date of the foreign exchange transaction, provided that the
Custodian receives the request for such information at least two business days prior to the value
date of the transaction.
(2) Upon receipt of Instructions, the Custodian shall settle foreign exchange contracts or
options to purchase and sell foreign currencies for spot and future delivery on behalf of and for
the account of a Fund with such currency brokers or Banking Institutions as such Fund may determine
and direct pursuant to Instructions. If, in its Instructions, a Fund does not direct the Custodian
to utilize a particular currency broker or Banking Institution, the Custodian is authorized to
select such currency broker or Banking Institution as it deems appropriate to execute the Fund’s
foreign currency transaction.
(3) Each Fund accepts full responsibility for its use of third party foreign exchange brokers
and for execution of said foreign exchange contracts and understands that the Fund shall be
responsible for any and all costs and interest charges which may be incurred as a result of the
failure or delay of its third party broker to deliver foreign exchange. The Custodian shall have
no responsibility or liability with respect to the selection of the currency brokers or Banking
Institutions with which a Fund deals or the performance of such brokers or Banking Institutions.
(4) Notwithstanding anything to the contrary contained herein, upon receipt of Instructions
the Custodian may, in connection with a foreign exchange contract, make free outgoing payments of
cash in the form of U.S. Dollars or foreign currency prior to receipt of confirmation of such
foreign exchange contract or confirmation that the countervalue currency completing such contract
has been delivered or received.
(5) The Custodian shall not be obligated to enter into foreign exchange transactions as
principal. However, if the Custodian has made available to a Fund its services as a principal in
foreign exchange transactions and subject to any separate agreement between the parties relating to
such transactions, the Custodian shall enter into foreign exchange contracts or options to purchase
and sell foreign currencies for spot and future delivery on behalf of and for the account of the
Fund, with the Custodian as principal.
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(n) Pledges or Loans of Securities.
(1) Upon receipt of Instructions from a Fund, the Custodian will release or cause to be
released Securities held in custody to the pledgees designated in such Instructions by way of
pledge or hypothecation to secure loans incurred by such Fund with various lenders including but
not limited to UMB Bank, n.a.; provided, however, that the Securities shall be released only upon
payment to the Custodian of the monies borrowed, except that in cases where additional collateral
is required to secure existing borrowings, further Securities may be released or delivered, or
caused to be released or delivered for that purpose upon receipt of Instructions. Upon receipt of
Instructions, the Custodian will pay, but only from funds available for such purpose, any such loan
upon re-delivery to it of the Securities pledged or hypothecated therefor and upon surrender of the
note or notes evidencing such loan. In lieu of delivering collateral to a pledgee, the Custodian,
on the receipt of Instructions, shall transfer the pledged Securities to a segregated account for
the benefit of the pledgee.
(2) Upon receipt of Special Instructions, and execution of a separate Securities Lending
Agreement, the Custodian will release Securities held in custody to the borrower designated in such
Instructions and may, except as otherwise provided below, deliver such Securities prior to the
receipt of collateral, if any, for such borrowing, provided that, in case of loans of Securities
held by a Securities System that are secured by cash collateral, the Custodian’s instructions to
the Securities System shall require that the Securities System deliver the Securities of the
appropriate Fund to the borrower thereof only upon receipt of the collateral for such borrowing.
The Custodian shall have no responsibility or liability for any loss arising from the delivery of
Securities prior to the receipt of collateral. Upon receipt of Instructions and the loaned
Securities, the Custodian will release the collateral to the borrower.
(o) Stock Dividends, Rights, Etc.
The Custodian shall receive and collect all stock dividends, rights, and other items of like
nature and, upon receipt of Instructions, take action with respect to the same as directed in such
Instructions.
(p) Routine Dealings.
The Custodian will, in general, attend to all routine and mechanical matters in accordance
with industry standards in connection with the sale, exchange, substitution, purchase, transfer, or
other dealings with Securities or other property of each Fund except as may be otherwise provided
in this Agreement or directed from time to time by Instructions from any particular Fund. The
Custodian may also make payments to itself or others from the Assets for disbursements and
out-of-pocket expenses incidental to handling Securities or other similar items relating to its
duties under this Agreement, provided that all such payments shall be accounted for to the
appropriate Fund.
(q) Collections.
The Custodian shall (a) collect amounts due and payable to each Fund with respect to portfolio
Securities and other Assets; (b) promptly credit to the account of each Fund all income and other
payments relating to portfolio Securities and other Assets held by the Custodian hereunder upon
Custodian’s receipt of such income or payments or as otherwise agreed in writing by the Custodian
and any particular Fund; (c) promptly endorse and deliver any instruments required to effect such
collection; and (d) promptly execute ownership and other certificates and affidavits for all
federal, state, local and foreign tax purposes in connection with receipt of income or other
payments with respect to portfolio Securities and other Assets, or in connection with the transfer
of such Securities or other Assets; provided, however, that with respect to portfolio Securities
registered in so-called street name, or physical Securities with variable interest rates, the
Custodian shall use its best efforts to collect amounts due and payable to any such Fund. The
Custodian shall notify a Fund in writing by facsimile transmission or in such other manner as such
Fund and Custodian may agree in writing if any amount payable with respect to portfolio Securities
or other Assets is not received by the Custodian when due. The Custodian shall not be responsible
for the collection of amounts due and payable with respect to portfolio Securities or other Assets
that are in default.
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(r) Bank Accounts.
Upon Instructions, the Custodian shall open and operate a bank account or accounts on the
books of the Custodian; provided that such bank account(s) shall be in the name of the Custodian or
a nominee thereof, for the account of one or more Funds, and shall be subject only to draft or
order of the Custodian. The responsibilities of the Custodian to any one or more such Funds for
deposits accepted on the Custodian’s books shall be that of a U.S. bank for a similar deposit.
(s) Dividends, Distributions and Redemptions.
To enable each Fund to pay dividends or other distributions to shareholders of each such Fund
and to make payment to shareholders who have requested repurchase or redemption of their shares of
each such Fund (collectively, the “Shares”), the Custodian shall release cash or Securities insofar
as available. In the case of cash, the Custodian shall, upon the receipt of Instructions, transfer
such funds by check or wire transfer to any account at any bank or trust company designated by each
such Fund in such Instructions. In the case of Securities, the Custodian shall, upon the receipt
of Special Instructions, make such transfer to any entity or account designated by each such Fund
in such Special Instructions.
(t) Proceeds from Shares Sold.
The Custodian shall receive funds representing cash payments received for shares issued or
sold from time to time by each Fund, and shall credit such funds to the account of the appropriate
Fund. The Custodian shall notify the appropriate Fund of Custodian’s receipt of cash in payment
for shares issued by such Fund by facsimile transmission or in such other manner as such Fund and
the Custodian shall agree. Upon receipt of Instructions, the Custodian shall: (a) deliver all
federal funds received by the Custodian in payment for shares as may be set forth in such
Instructions and at a time agreed upon between the Custodian and such Fund; and (b) make federal
funds available to a Fund as of specified times agreed upon from time to time by such Fund and the
Custodian, in the amount of checks received in payment for shares which are deposited to the
accounts of such Fund.
(u) Proxies and Notices; Compliance with the Shareholders Communication Act of 1985.
The Custodian shall deliver or cause to be delivered to the appropriate Fund all forms of
proxies, all notices of meetings, and any other notices or announcements affecting or relating to
Securities owned by such Fund that are received by the Custodian, any Subcustodian, or any nominee
of either of them, and, upon receipt of Instructions, the Custodian shall execute and deliver, or
cause such Subcustodian or nominee to execute and deliver, such proxies or other authorizations as
may be required. Except as directed pursuant to Instructions, neither the Custodian nor any
Subcustodian or nominee shall vote upon any such Securities, or execute any proxy to vote thereon,
or give any consent or take any other action with respect thereto.
The Custodian will not release the identity of any Fund to an issuer which requests such
information pursuant to the Shareholder Communications Act of 1985 for the specific purpose of
direct communications between such issuer and any such Fund unless a particular Fund directs the
Custodian otherwise in writing.
(v) Books and Records.
The Custodian shall maintain such records relating to its activities under this Agreement as
are required to be maintained by Rule 31a-1 under the Investment Company Act of 1940 (“1940 Act”)
and to preserve them for the periods prescribed in Rule 31a-2 under the 1940 Act. These records
shall be open for inspection by duly authorized officers, employees or agents (including
independent public accountants) of the appropriate Fund during normal business hours of the
Custodian.
The Custodian shall provide accountings relating to its activities under this Agreement as
shall be agreed upon by each Fund and the Custodian.
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(w) Opinion of Fund’s Independent Registered Public Accountants.
The Custodian shall take all reasonable action as each Fund may request to obtain from year to
year favorable opinions from each such Fund’s independent registered public accountants with
respect to the Custodian’s activities hereunder and in connection with the preparation of each such
Fund’s periodic reports to the SEC and with respect to any other requirements of the SEC.
(x) Reports by Independent Certified Public Accountants.
At the request of a Fund, the Custodian shall deliver to such Fund a written report prepared
by the Custodian’s independent certified public accountants with respect to the services provided
by the Custodian under this Agreement, including, without limitation, the Custodian’s accounting
system, internal accounting control and procedures for safeguarding cash, Securities and other
Assets, including cash, Securities and other Assets deposited and/or maintained in a Securities
System or with a Subcustodian. Such report shall be of sufficient scope and in sufficient detail
as may reasonably be required by such Fund and as may reasonably be obtained by the Custodian.
(y) Bills and Other Disbursements.
Upon receipt of Instructions, the Custodian shall pay, or cause to be paid, all bills,
statements, or other obligations of a Fund.
5. SUBCUSTODIANS.
From time to time, in accordance with the relevant provisions of this Agreement, the Custodian
may appoint one or more Domestic Subcustodians, Foreign Subcustodians, Special Subcustodians, or
Interim Subcustodians (as each are hereinafter defined) to act on behalf of any one or more Funds.
A Domestic Subcustodian, in accordance with the provisions of this Agreement, may also appoint a
Foreign Subcustodian, Special Subcustodian, or Interim Subcustodian to act on behalf of any one or
more Funds. For purposes of this Agreement, all Domestic Subcustodians, Foreign Subcustodians,
Special Subcustodians and Interim Subcustodians shall be referred to collectively as
“Subcustodians.”
(a) Domestic Subcustodians.
The Custodian may, at any time and from time to time, appoint any bank as defined in Section
2(a)(5) of the 1940 Act or any trust company or other entity, any of which meet the requirements of
a custodian under Section 17(f) of the 1940 Act and the rules and regulations thereunder, to act
for the Custodian on behalf of any one or more Funds as a subcustodian for purposes of holding
Assets of such Fund(s) and performing other functions of the Custodian within the United States (a
“Domestic Subcustodian”). Each Fund shall approve in writing the appointment of the proposed
Domestic Subcustodian; and the Custodian’s appointment of any such Domestic Subcustodian shall not
be effective without such prior written approval of the Fund(s). Each such duly approved Domestic
Subcustodian shall be listed on Appendix A attached hereto, as it may be amended, from time to
time.
(b) Foreign Subcustodians.
The Custodian may at any time appoint, or cause a Domestic Subcustodian to appoint, any bank,
trust company or other entity meeting the requirements of an “eligible foreign custodian” under
Section 17(f) of the 1940 Act and the rules and regulations thereunder to act for the Custodian on
behalf of any one or more Funds as a subcustodian or sub-subcustodian (if appointed by a Domestic
Subcustodian) for purposes of holding Assets of the Fund(s) and performing other functions of the
Custodian in countries other than the United States of America (hereinafter referred to as a
“Foreign Subcustodian” in the context of either a subcustodian or a sub-subcustodian); provided
that the Custodian shall have obtained written confirmation from each Fund of the approval of the
Board of Directors or other governing body of each such Fund (which approval may be withheld in the
sole discretion of such Board of Directors or other governing body or entity) with respect to (i)
the identity of any proposed Foreign
10
Subcustodian (including branch designation), (ii) the country
or countries in which, and the securities depositories or clearing agencies (hereinafter
“Securities Depositories and Clearing Agencies”), if any, through which, the Custodian or any
proposed Foreign Subcustodian is authorized to hold Securities and other Assets of each such Fund,
and (iii) the form and terms of the subcustodian agreement to be entered into with such proposed
Foreign Subcustodian. Each such duly approved Foreign Subcustodian and the countries where and the
Securities Depositories and Clearing Agencies through which they may hold Securities and other
Assets of the Fund(s) shall be listed on Appendix A attached hereto, as it may be amended, from
time to time. Each Fund shall be responsible for informing the Custodian sufficiently in advance
of a proposed investment which is to be held in a country in which no Foreign Subcustodian is
authorized to act, in order that there shall be sufficient time for the Custodian, or any Domestic
Subcustodian, to effect the appropriate arrangements with a proposed Foreign Subcustodian,
including obtaining approval as provided in this Section 5(b). In connection with the appointment
of any Foreign Subcustodian, the Custodian shall, or shall cause the Domestic Subcustodian to,
enter into a subcustodian agreement with the Foreign Subcustodian in form and substance approved by
each such Fund. The Custodian shall not consent to the amendment of, and shall cause any Domestic
Subcustodian not to consent to the amendment of, any agreement entered into with a Foreign
Subcustodian, which materially affects any Fund’s rights under such agreement, except upon prior
written approval of such Fund pursuant to Special Instructions.
(c) Interim Subcustodians.
Notwithstanding the foregoing, in the event that a Fund shall invest in an Asset to be held in
a country in which no Foreign Subcustodian is authorized to act, the Custodian shall notify such
Fund in writing by facsimile transmission or in such other manner as such Fund and the Custodian
shall agree in writing of the unavailability of an approved Foreign Subcustodian in such country;
and upon the receipt of Special Instructions from such Fund, the Custodian shall, or shall cause
its Domestic Subcustodian to, appoint or approve an entity (referred to herein as an “Interim
Subcustodian”) designated in such Special Instructions to hold such Security or other Asset.
(d) Special Subcustodians.
Upon receipt of Special Instructions, the Custodian shall, on behalf of a Fund, appoint one or
more banks, trust companies or other entities designated in such Special Instructions to act for
the Custodian on behalf of such Fund as a subcustodian for purposes of: (i) effecting third-party
repurchase transactions with banks, brokers, dealers or other entities through the use of a common
custodian or subcustodian; (ii) providing depository and clearing agency services with respect to
certain variable rate demand note Securities, (iii) providing depository and clearing agency
services with respect to dollar denominated Securities, and (iv) effecting any other transactions
designated by such Fund in such Special Instructions. Each such designated subcustodian
(hereinafter referred to as a “Special Subcustodian”) shall be listed on Appendix A attached
hereto, as it may be amended from time to time. In connection with the appointment of any Special
Subcustodian, the Custodian shall enter into a subcustodian agreement with the Special Subcustodian
in form and substance approved by the appropriate Fund in Special Instructions. The Custodian
shall not amend any subcustodian agreement entered into with a Special Subcustodian, or waive any
rights under such agreement, except upon prior approval pursuant to Special Instructions.
(e) Termination of a Subcustodian.
The Custodian may, at any time in its discretion upon notification to the appropriate Fund(s),
terminate any Subcustodian of such Fund(s) in accordance with the termination provisions under the
applicable subcustodian agreement, and upon the receipt of Special Instructions, the Custodian will
terminate any Subcustodian in accordance with the termination provisions under the applicable
subcustodian agreement.
(f) Certification Regarding Foreign Subcustodians.
Upon request of a Fund, the Custodian shall deliver to such Fund a certificate stating: (i)
the identity of each Foreign Subcustodian then acting on behalf of the Custodian; (ii) the
countries in which and the Securities Depositories and Clearing Agencies through which each such
Foreign Subcustodian is then holding cash, Securities and other Assets of such Fund; and (iii) such
other information as may be requested by such Fund, and as the Custodian shall be reasonably able
to obtain, to evidence compliance with rules and regulations under the 1940 Act.
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6. STANDARD OF CARE.
(a) General Standard of Care.
The Custodian shall be liable to a Fund for all losses, damages and reasonable costs and
expenses suffered or incurred by such Fund resulting from the negligence or willful misfeasance of
the Custodian; provided, however, in no event shall the Custodian be liable for special, indirect
or consequential damages arising under or in connection with this Agreement.
(b) Actions Prohibited by Applicable Law, Events Beyond Custodian’s Control, Sovereign
Risk, Etc.
In no event shall the Custodian or any Domestic Subcustodian incur liability hereunder (i) if
the Custodian or any Subcustodian or Securities System, or any subcustodian, Securities System,
Securities Depository or Clearing Agency utilized by the Custodian or any such Subcustodian, or any
nominee of the Custodian or any Subcustodian (individually, a “Person”) is prevented, forbidden or
delayed from performing, or omits to perform, any act or thing which this Agreement provides shall
be performed or omitted to be performed, by reason of: (a) any provision of any present or future
law or regulation or order of the United States of America, or any state thereof, or of any foreign
country, or political subdivision thereof or of any court of competent jurisdiction (and neither
the Custodian nor any other Person shall be obligated to take any action contrary thereto); or (b)
any event beyond the control of the Custodian or other Person such as armed conflict, riots,
strikes, lockouts, labor disputes, equipment or transmission failures, natural disasters, or
failure of the mails, transportation, communications or power supply; or (ii) for any loss, damage,
cost or expense resulting from “Sovereign Risk.” A “Sovereign Risk” shall mean nationalization,
expropriation, currency devaluation, revaluation or fluctuation, confiscation, seizure,
cancellation, destruction or similar action by any governmental authority, de facto or de jure; or
enactment, promulgation, imposition or enforcement by any such governmental authority of currency
restrictions, exchange controls, taxes, levies or other charges affecting a Fund’s Assets; or acts
of armed conflict, terrorism, insurrection or revolution; or any other act or event beyond the
Custodian’s or such other Person’s control.
(c) Liability for Past Records.
Neither the Custodian nor any Domestic Subcustodian shall have any liability in respect of any
loss, damage or expense suffered by a Fund, insofar as such loss, damage or expense arises from the
performance of the Custodian or any Domestic Subcustodian in reliance upon records that were
maintained for such Fund by entities other than the Custodian or any Domestic Subcustodian prior to
the Custodian’s employment hereunder.
(d) Advice of Counsel.
The Custodian and all Domestic Subcustodians shall be entitled to receive and act upon advice
of counsel of its own choosing on all matters. The Custodian and all Domestic Subcustodians shall
be without liability for any actions taken or omitted in good faith pursuant to the advice of
counsel.
(e) Advice of the Fund and Others.
The Custodian and any Domestic Subcustodian may rely upon the advice of any Fund and upon
statements of such Fund’s accountants and other persons believed by it in good faith to be expert
in matters upon which they are consulted, and neither the Custodian nor any Domestic Subcustodian
shall be liable for any actions taken or omitted, in good faith, pursuant to such advice or
statements.
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(f) Instructions Appearing to be Genuine.
The Custodian and all Domestic Subcustodians shall be fully protected and indemnified in
acting as a custodian hereunder upon any Resolutions of the Board of Directors or Trustees,
Instructions, Special Instructions, advice, notice, request, consent, certificate, instrument or
paper appearing to it to be genuine and to have been properly executed and shall, unless otherwise
specifically provided herein, be entitled to receive as conclusive proof of any fact or matter
required to be ascertained from any Fund hereunder a certificate signed by any officer of such Fund
authorized to countersign or confirm Special Instructions. The Custodian shall have no liability
for any losses, damages, or expenses incurred by a Fund arising from the use of a non-secure form
of email or other non-secure electronic system or process.
(g) Exceptions from Liability.
Without limiting the generality of any other provisions hereof, neither the Custodian nor any
Domestic Subcustodian shall be under any duty or obligation to inquire into, nor be liable for:
(i) the validity of the issue of any Securities purchased by or for any Fund, the legality of
the purchase thereof or evidence of ownership required to be received by any such Fund, or the
propriety of the decision to purchase or amount paid therefor;
(ii) the legality of the sale of any Securities by or for any Fund, or the propriety of the
amount for which the same were sold; or
(iii) any other expenditures, encumbrances of Securities, borrowings or similar actions with
respect to any Fund’s Assets;
and may, until notified to the contrary, presume that all Instructions or Special Instructions
received by it are not in conflict with or in any way contrary to any provisions of any such Fund’s
Declaration of Trust, Partnership Agreement, Articles of Incorporation or By-Laws or votes or
proceedings of the shareholders, trustees, partners or directors of any such Fund, or any such
Fund’s currently effective Registration Statement on file with the SEC.
7. LIABILITY OF THE CUSTODIAN FOR ACTIONS OF OTHERS.
(a) Domestic Subcustodians.
The Custodian shall be liable for the acts or omissions of any Domestic Subcustodian to the
same extent as if such actions or omissions were performed by the Custodian itself.
(b) Liability for Acts and Omissions of Foreign Subcustodians.
The Custodian shall be liable to a Fund for any loss or damage to such Fund caused by or
resulting from the acts or omissions of any Foreign Subcustodian to the extent that, under the
terms set forth in the subcustodian agreement between the Custodian or a Domestic Subcustodian and
such Foreign Subcustodian, the Foreign Subcustodian has failed to perform in accordance with the
standard of conduct imposed under such subcustodian agreement and the Custodian or Domestic
Subcustodian recovers from the Foreign Subcustodian under the applicable subcustodian agreement.
(c) Securities Systems, Interim Subcustodians, Special Subcustodians, Securities
Depositories and Clearing Agencies.
The Custodian shall not be liable to any Fund for any loss, damage or expense suffered or
incurred by such Fund resulting from or occasioned by the actions or omissions of a Securities
System, Interim Subcustodian, Special Subcustodian, or Securities Depository and Clearing Agency,
unless such loss, damage or expense is caused by, or results from, the negligence or willful
misfeasance of the Custodian.
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(d) Defaults or Insolvency of Brokers, Banks, Etc.
The Custodian shall not be liable for any loss, damage or expense suffered or incurred by any
Fund resulting from or occasioned by the actions, omissions, neglects, defaults or insolvency of
any broker, bank, trust company
or any other person with whom the Custodian may deal (other than any of such entities acting as a
Subcustodian, Securities System or Securities Depository and Clearing Agency, for whose actions the
liability of the Custodian is set out elsewhere in this Agreement) unless such loss, damage or
expense is caused by, or results from, the negligence or willful misfeasance of the Custodian.
(e) Reimbursement of Expenses.
Each Fund agrees to reimburse the Custodian for all out-of-pocket expenses incurred by the
Custodian in connection with this Agreement, but excluding salaries and usual overhead expenses.
8. INDEMNIFICATION.
(a) Indemnification by the Funds.
Subject to the limitations set forth in this Agreement, each Fund agrees to indemnify and hold
harmless the Custodian and its nominees from all losses, damages and expenses (including attorneys’
fees) suffered or incurred by the Custodian or its nominee caused by or arising from actions taken
by the Custodian, its employees or agents in the performance of its duties and obligations under
this Agreement, including, but not limited to, any indemnification obligations undertaken by the
Custodian under any relevant subcustodian agreement; provided, however, that such indemnity shall
not apply to the extent the Custodian is liable under Sections 6 or 7 hereof.
If any Fund requires the Custodian to take any action with respect to Securities, which action
involves the payment of money or which may, in the opinion of the Custodian, result in the
Custodian or its nominee assigned to such Fund being liable for the payment of money or incurring
liability of some other form, such Fund, as a prerequisite to requiring the Custodian to take such
action, shall provide indemnity to the Custodian in an amount and form satisfactory to it.
(b) Indemnification by the Custodian.
Subject to the limitations set forth in this Agreement and in addition to the obligations
provided in Sections 6 and 7, the Custodian agrees to indemnify and hold harmless each Fund from
all losses, damages and expenses suffered or incurred by each such Fund caused by the negligence or
willful misfeasance of the Custodian.
9. ADVANCES.
In the event that, pursuant to Instructions, the Custodian or any Subcustodian, Securities
System, or Securities Depository or Clearing Agency acting either directly or indirectly under
agreement with the Custodian (each of which for purposes of this Section 9 shall be referred to as
“Custodian”), makes any payment or transfer of funds on behalf of any Fund as to which there would
be, at the close of business on the date of such payment or transfer, insufficient funds held by
the Custodian on behalf of any such Fund, the Custodian may, in its discretion without further
Instructions, provide an advance (“Advance”) to any such Fund in an amount sufficient to allow the
completion of the transaction by reason of which such payment or transfer of funds is to be made.
In addition, in the event the Custodian is directed by Instructions to make any payment or transfer
of funds on behalf of any Fund as to which it is subsequently determined that such Fund has
overdrawn its cash account with the Custodian as of the close of business on the date of such
payment or transfer, said overdraft shall constitute an Advance. Any Advance shall be payable by
the Fund on behalf of which the Advance was made on demand by Custodian, unless otherwise agreed by
such Fund and the Custodian, and shall accrue interest from the date of the Advance to the date of
payment by such Fund to the Custodian at a rate agreed upon in writing from time to time by the
Custodian and such Fund. It is understood that any transaction in respect of which the Custodian
shall have made an Advance, including but not limited to a foreign exchange contract or transaction
in respect of which the Custodian is not acting as a principal, is for the account of and at the
risk of the Fund on behalf of which the Advance was made, and
14
not, by reason of such Advance,
deemed to be a transaction undertaken by the Custodian for its own account and risk. The Custodian
and each of the Funds which are parties to this Agreement acknowledge that the purpose of Advances
is to finance temporarily the purchase or sale of Securities for prompt delivery in accordance with
the settlement terms of such transactions or to meet emergency expenses not reasonably foreseeable
by a Fund. The Custodian shall promptly notify the appropriate Fund of any Advance. Such
notification shall be sent by facsimile transmission or in such other manner as such Fund and the
Custodian may agree.
10. LIENS.
The Custodian shall have a lien on the Property in the Custody Account to secure payment of
fees and expenses for the services rendered under this Agreement. If the Custodian advances cash
or securities to the Fund 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 its duties hereunder, except such as may arise from its or its nominee’s
negligent action, negligent failure to act or willful misconduct, any Property at any time held for
the Custody Account shall be security therefor and the Fund hereby grants a security interest
therein to the Custodian. The Fund shall promptly reimburse the Custodian for any such advance of
cash or securities or any such taxes, charges, expenses, assessments, claims or liabilities upon
request for payment, but should the Fund fail to so reimburse the Custodian, the Custodian shall be
entitled to dispose of such Property to the extent necessary to obtain reimbursement. The
Custodian shall be entitled to debit any account of the Fund with the Custodian including, without
limitation, the Custody Account, in connection with any such advance and any interest on such
advance as the Custodian deems reasonable.
11. COMPENSATION.
Each Fund will pay to the Custodian such compensation as is agreed to in writing by the
Custodian and each such Fund from time to time. Such compensation, together with all amounts for
which the Custodian is to be reimbursed in accordance with Section 7(e), shall be billed to each
such Fund and paid in cash to the Custodian.
12. POWERS OF ATTORNEY.
Upon request, each Fund shall deliver to the Custodian such proxies, powers of attorney or
other instruments as may be reasonable and necessary or desirable in connection with the
performance by the Custodian or any Subcustodian of their respective obligations under this
Agreement or any applicable subcustodian agreement.
13. TERMINATION AND ASSIGNMENT.
Any Fund or the Custodian may terminate this Agreement by notice in writing, delivered or
mailed, postage prepaid (certified mail, return receipt requested) to the other not less than 60
days prior to the date upon which such termination shall take effect. Upon termination of this
Agreement, the appropriate Fund shall pay to the Custodian such fees as may be due the Custodian
hereunder as well as its reimbursable disbursements, costs and expenses paid or incurred. Upon
termination of this Agreement, the Custodian shall deliver, at the terminating party’s expense, all
Assets held by it hereunder to the appropriate Fund or as otherwise designated by such Fund by
Special Instructions. Upon such delivery, the Custodian shall have no further obligations or
liabilities under this Agreement except as to the final resolution of matters relating to activity
occurring prior to the effective date of termination.
This Agreement may not be assigned by the Custodian or any Fund without the respective consent
of the other, duly authorized by a resolution by its Board of Directors or Trustees.
14. ADDITIONAL FUNDS.
An additional Fund or Funds may become a party to this Agreement after the date hereof by an
instrument in writing to such effect signed by such Fund or Funds and the Custodian. If this
Agreement is terminated as to one or more of the Funds (but less than all of the Funds) or if an
additional Fund or Funds shall become a party to this Agreement, there shall be delivered to each
party an Appendix B or an amended Appendix B, signed by each of the additional Funds (if any) and
each of the remaining Funds as well as the Custodian, deleting or adding such Fund or
15
Funds, as the
case may be. The termination of this Agreement as to less than all of the Funds shall not affect
the obligations of the Custodian and the remaining Funds hereunder as set forth on the signature
page hereto and in Appendix B as revised from time to time.
15. NOTICES.
As to each Fund, notices, requests, instructions and other writings delivered to ▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇ ▇. ▇▇▇▇▇, postage prepaid, or to such other address
as any particular Fund may have designated to the Custodian in writing, shall be deemed to have
been properly delivered or given to a Fund.
Notices, requests, instructions and other writings delivered to the Securities Administration
department of the Custodian at its office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇., ▇▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, postage prepaid, or to such other addresses as the Custodian may have
designated to each Fund in writing, shall be deemed to have been properly delivered or given to the
Custodian hereunder; provided, however, that procedures for the delivery of Instructions and
Special Instructions shall be governed by Section 2(c) hereof.
16. MISCELLANEOUS.
(a) This Agreement is executed and delivered in the State of Missouri and shall be governed
by the laws of such state.
(b) All of the terms and provisions of this Agreement shall be binding upon, and inure to the
benefit of, and be enforceable by the respective successors and assigns of the parties hereto.
(c) No provisions of this Agreement may be amended, modified or waived, in any manner except
in writing, properly executed by both parties hereto; provided, however, Appendix A may be amended
from time to time as Domestic Subcustodians, Foreign Subcustodians, Special Subcustodians, and
Securities Depositories and Clearing Agencies are approved or terminated according to the terms of
this Agreement.
(d) The captions in this Agreement are included for convenience of reference only, and in no
way define or delimit any of the provisions hereof or otherwise affect their construction or
effect.
(e) This Agreement shall be effective as of the date of execution hereof.
(f) This Agreement may be executed simultaneously in two or more counterparts, each of which
will be deemed an original, but all of which together will constitute one and the same instrument.
(g) The following terms are defined terms within the meaning of this Agreement, and the
definitions thereof are found in the following sections of the Agreement:
| Term | Section | |
Account |
4(b)(3)(ii) | |
ADR’S |
4(j) | |
Advance |
9 | |
Assets |
2(b) | |
Authorized Person |
3 | |
Banking Institutions |
4(1) | |
Domestic Subcustodian |
5(a) | |
Foreign Subcustodian |
5(b) | |
Instruction |
2(c)(1) | |
Interim Subcustodian |
5(c) | |
Interest Bearing Deposits |
4(1) | |
Liens |
10 | |
OCC |
4(g)(1) | |
Person |
6(b) |
16
| Term | Section | |
Procedural Agreement |
4(h) | |
SEC |
4(b)(3) | |
Securities |
2(a) | |
Securities Depositories and Clearing Agencies |
5(b)(ii) | |
Securities System |
4(b)(3) | |
Shares |
4(s) | |
Sovereign Risk |
6(b) | |
Special Instructions |
2(c)(2) | |
Special Subcustodian |
5(d) | |
Subcustodians |
5 | |
1940 Act |
4(v) |
(h) If any part, term or provision of this Agreement is held to be illegal, in conflict with
any law or otherwise invalid by any court of competent jurisdiction, the remaining portion or
portions shall be considered severable and shall not be affected, and the rights and obligations of
the parties shall be construed and enforced as if this Agreement did not contain the particular
part, term or provision held to be illegal or invalid.
(i) This Agreement constitutes the entire understanding and agreement of the parties hereto
with respect to the subject matter hereof, and accordingly supersedes, as of the effective date of
this Agreement, any custodian agreement heretofore in effect between the Fund and the Custodian.
IN WITNESS WHEREOF, the parties hereto have caused this Custody Agreement to be executed by
their respective duly authorized officers.
| DRIEHAUS MUTUAL FUNDS | ||
Attest: /s/▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
|
By: /s/▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||
| Title: Vice President & Treasurer | ||
| Date: 6/1/09 | ||
| UMB BANK, N.A. | ||
Attest: /s/▇. ▇▇▇▇▇▇
|
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||
| Title: Vice President | ||
| Date: 6/2/09 | ||
17
APPENDIX A
DOMESTIC SUBCUSTODIANS:
Citibank (Foreign Securities Only)
SECURITIES SYSTEMS:
Federal Book Entry
Depository Trust Company
Depository Trust Company
SPECIAL SUBCUSTODIANS:
SECURITIES DEPOSITORIES
| COUNTRIES | FOREIGN SUBCUSTODIANS | CLEARING AGENCIES | ||
| Euroclear |
| UMB BANK, N.A. | ||
By: /s/▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |
Title: Vice President and Treasurer
|
Title: Vice President | |
Date: 6/1/09
|
Date: 6/2/09 | |
▇▇
▇▇▇▇▇▇▇▇ ▇
The following open-end management investment companies (“Funds”) are hereby made parties to
the Custody Agreement dated June 1, 2009, with UMB Bank, n.a. (“Custodian”) and Driehaus Mutual
Funds, and agree to be bound by all the terms and conditions contained in said Agreement:
Driehaus Active Income Fund
| DRIEHAUS MUTUAL FUNDS | ||
Attest: /s/▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
|
By: /s/▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||
| Title: Vice President and Treasurer | ||
| Date: 6/1/09 | ||
| UMB BANK, N.A. | ||
Attest: /s/▇. ▇▇▇▇▇▇
|
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||
| Title: Vice President | ||
| Date: 6/2/09 | ||
19