EXHIBIT 8
FORM OF
CUSTODY AND INVESTMENT ACCOUNTING AGREEMENT
THIS AGREEMENT made the _____ day of _______________, 1997, by and
between INVESTORS FIDUCIARY TRUST COMPANY, a trust company chartered under the
laws of the state of Missouri, having its trust office located at ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Custodian"), and MONUMENT SERIES
FUND, INC. a ______________________________ corporation, having its principal
office and place of business at ("Fund"). ----------------------
WITNESSETH:
WHEREAS, Fund desires to appoint Investors Fiduciary Trust Company as
custodian of the securities and monies of Fund's investment portfolio and as
its agent to perform certain investment accounting and recordkeeping
functions; and WHEREAS, Investors Fiduciary Trust Company is willing to accept
such appointment; NOW THEREFORE, for and 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. Fund hereby constitutes and appoints Custodian
as:
A. Custodian of the securities and monies at any time owned by the
Fund; and
B. Agent to perform certain accounting and recordkeeping functions
relating to portfolio transactions required of a duly registered
investment company under Rule 31a of the Investment Company Act of
1940 (the "1940 Act") and to calculate the net asset value of the
Fund.
2. REPRESENTATIONS AND WARRANTIES.
A. Fund hereby represents, warrants and acknowledges to Custodian:
1. That it is a corporation or trust (as specified above) duly
organized and existing and in good standing under the laws of
its state of organization, and that it is registered under the
1940 Act; and
2. That it has the requisite power and authority under applicable
law, its articles of incorporation and its bylaws to enter into
this Agreement; that it has taken all requisite action
necessary to appoint Custodian as custodian and investment
accounting and recordkeeping agent for the Fund; that this
Agreement has been duly executed and delivered by Fund; and
that this Agreement constitutes a legal, valid and binding
obligation of Fund, enforceable in accordance with its terms.
B. Custodian hereby represents, warrants and acknowledges to Fund:
1. That it is a trust company duly organized and existing and in
good standing under the laws of the State of Missouri; and
2. That it has the requisite power and authority under applicable
law, its charter and its bylaws to enter into and perform this
Agreement; that this Agreement has been duly executed and
delivered by Custodian; and that this Agreement constitutes a
legal, valid and binding obligation of Custodian, enforceable
in accordance with its terms.
3. DUTIES AND RESPONSIBILITIES OF CUSTODIAN.
A. DELIVERY OF ASSETS
Except as permitted by the 1940 Act, Fund will deliver or cause to
be delivered to Custodian on the effective date of this Agreement,
or as soon thereafter as practicable, and from time to time
thereafter, all portfolio securities acquired by it and monies then
owned by it or from time to time coming into its possession during
the time this Agreement shall continue in effect. Custodian shall
have no responsibility or liability whatsoever for or on account of
securities or monies not so delivered.
B. DELIVERY OF ACCOUNTS AND RECORDS
Fund shall turn over or cause to be turned over to Custodian all of
the Fund's relevant accounts and records previously maintained.
Custodian shall be entitled to rely conclusively on the completeness
and correctness of the accounts and records turned over to it, and
Fund shall indemnify and hold Custodian harmless
2
of and from any and all expenses, damages and losses whatsoever
arising out of or in connection with any error, omission, inaccuracy
or other deficiency of such accounts and records or in the failure
of Fund to provide, or to provide in a timely manner, any accounts,
records or information needed by the Custodian to perform its
functions hereunder.
C. DELIVERY OF ASSETS TO THIRD PARTIES
Custodian will receive delivery of and keep safely the assets of
Fund delivered to it from time to time segregated in a separate
account, and if Fund is comprised of more than one portfolio of
investment securities (each a "Portfolio") Custodian shall keep the
assets of each Portfolio segregated in a separate account. Custodian
will not deliver, assign, pledge or hypothecate any such assets to
any person except as permitted by the provisions of this Agreement
or any agreement executed by it according to the terms of Section
3.S. of this Agreement. Upon delivery of any such assets to a
subcustodian pursuant to Section 3.S. of this Agreement, Custodian
will create and maintain records identifying those assets which have
been delivered to the subcustodian as belonging to the Fund, by
Portfolio if applicable. The Custodian is responsible for the
safekeeping of the securities and monies of Fund only until they
have been transmitted to and received by other persons as permitted
under the terms of this Agreement, except for securities and monies
transmitted to subcustodians appointed under Section 3.S. of this
Agreement, for which Custodian remains responsible to the extent
provided in Section 3.S. hereof. Custodian may participate directly
or indirectly through a subcustodian in the Depository Trust Company
(DTC), Treasury/Federal Reserve Book Entry System (Fed System),
Participant Trust Company (PTC) or other depository approved by the
Fund (as such entities are defined at 17 CFR Section 270.17f-4(b))
(each a "Depository" and collectively, the "Depositories").
D. REGISTRATION OF SECURITIES
The Custodian shall at all times hold registered securities of the
Fund in the name
3
of the Custodian, the Fund, or a nominee of either of them, unless
specifically directed by instructions to hold such registered
securities in so-called "street name," provided that, in any event,
all such securities and other assets shall be held in an account of
the Custodian containing only assets of the Fund, or only assets
held by the Custodian as a fiduciary or custodian for customers, and
provided further, that the records of the Custodian at all times
shall indicate the Fund or other customer for which such securities
and other assets are held in such account and the respective
interests therein. If, however, the Fund directs the Custodian to
maintain securities in "street name", notwithstanding anything
contained herein to the contrary, the Custodian shall be obligated
only to utilize its best efforts to timely collect income due the
Fund on such securities and to notify the Fund of relevant corporate
actions including, without limitation, pendency of calls,
maturities, tender or exchange offers. All securities, and the
ownership thereof by Fund, which are held by Custodian hereunder,
however, shall at all times be identifiable on the records of the
Custodian. The Fund agrees to hold Custodian and its nominee
harmless for any liability as a shareholder of record of securities
held in custody.
E. EXCHANGE OF SECURITIES
Upon receipt of instructions as defined herein in Section 4.A,
Custodian will exchange, or cause to be exchanged, portfolio
securities held by it for the account of Fund for other securities
or cash issued or paid in connection with any reorganization,
recapitalization, merger, consolidation, split-up of shares, change
of par value, conversion or otherwise, and will deposit any such
securities in accordance with the terms of any reorganization or
protective plan. Without instructions, Custodian is authorized to
exchange securities held by it in temporary form for securities in
definitive form, to effect an exchange of shares when the par value
of the stock is changed, and, upon receiving payment therefor, to
surrender bonds or other securities held by it at maturity or when
advised of earlier call for redemption, except that Custodian shall
receive instructions prior to
4
surrendering any convertible security.
F. PURCHASES OF INVESTMENTS OF THE FUND - OTHER THAN OPTIONS AND
FUTURES
Fund will, on each business day on which a purchase of securities
(other than options and futures) shall be made by it, deliver to
Custodian instructions which shall specify with respect to each such
purchase:
1. If applicable, the name of the Portfolio making such purchase;
2. The name of the issuer and description of the security;
3. The number of shares and the principal amount purchased, and
accrued interest, if any;
4. The trade date;
5. The settlement date;
6. The purchase price per unit and the brokerage commission, taxes
and other expenses payable in connection with the purchase;
7. The total amount payable upon such purchase;
8. The name of the person from whom or the broker or dealer
through whom the purchase was made; and
9. Whether the security is to be received in certificated form or
via a specified Depository.
In accordance with such instructions, Custodian will pay for out of
monies held for the account of Fund, but only insofar as such monies
are available for such purpose, and receive the portfolio securities
so purchased by or for the account of Fund, except that Custodian
may in its sole discretion advance funds to the Fund which may
result in an overdraft because the monies held by the Custodian on
behalf of the Fund are insufficient to pay the total amount payable
upon such purchase. Except as otherwise instructed by Fund, such
payment shall be made by the Custodian only upon receipt of
securities: (a) by the Custodian; (b) by a clearing corporation of a
national exchange of which the Custodian is a member; or (c) by a
Depository. Notwithstanding the foregoing, (i) in the case of a
repurchase agreement, the Custodian may release funds to a
Depository prior to
5
the receipt of advice from the Depository that the securities
underlying such repurchase agreement have been transferred by
book-entry into the account maintained with such Depository by the
Custodian, on behalf of its customers, provided that the Custodian's
instructions to the Depository require that the Depository make
payment of such funds only upon transfer by book-entry of the
securities underlying the repurchase agreement in such account; (ii)
in the case of time deposits, call account deposits, currency
deposits and other deposits, foreign exchange transactions, futures
contracts or options, the Custodian may make payment therefor before
receipt of an advice or confirmation evidencing said deposit or
entry into such transaction; and (iii) in the case of the purchase
of securities, the settlement of which occurs outside of the United
States of America, the Custodian may make, or cause a subcustodian
appointed pursuant to Section 3.S.2. of this Agreement to make,
payment therefor in accordance with generally accepted local custom
and market practice.
G. SALES AND DELIVERIES OF INVESTMENTS OF THE FUND - Other Than Options
and Futures Fund will, on each business day on which a sale of
investment securities (other than options and futures) of Fund has
been made, deliver to Custodian instructions specifying with respect
to each such sale:
1. If applicable, the name of the Portfolio making such sale;
2. The name of the issuer and description of the securities;
3. The number of shares and principal amount sold, and accrued
interest, if any;
4. The date on which the securities sold were purchased or other
information identifying the securities sold and to be
delivered;
5. The trade date;
6. The settlement date;
7. The sale price per unit and the brokerage commission, taxes or
other expenses payable in connection with such sale;
8. The total amount to be received by Fund upon such sale; and
6
9. The name and address of the broker or dealer through whom or
person to whom the sale was made.
In accordance with such instructions, Custodian will deliver or
cause to be delivered the securities thus designated as sold for the
account of Fund to the broker or other person specified in the
instructions relating to such sale. Except as otherwise instructed
by Fund, such delivery shall be made upon receipt of: (a) payment
therefor in such form as is satisfactory to the Custodian; (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, on behalf of
its customers, with a Depository. Notwithstanding the foregoing: (i)
in the case of securities held in physical form, such securities
shall be delivered in accordance with "street delivery custom" to a
broker or its clearing agent; or (ii) in the case of the sale of
securities, the settlement of which occurs outside of the United
States of America, the Custodian may make, or cause a subcustodian
appointed pursuant to Section 3.S.2. of this Agreement to make, such
delivery upon payment therefor in accordance with generally accepted
local custom and market practice.
H. PURCHASES OR SALES OF OPTIONS AND FUTURES Fund will, on each
business day on which a purchase or sale of the following options
and/or futures shall be made by it, deliver to Custodian
instructions which shall specify with respect to each such purchase
or sale:
1. If applicable, the name of the Portfolio making such purchase
or sale;
2. Security Options
a. The underlying security;
b. The price at which purchased or sold;
c. The expiration date;
d. The number of contracts;
e. The exercise price;
f. Whether the transaction is an opening, exercising,
expiring or
7
closing transaction;
g. Whether the transaction involves a put or call;
h. Whether the option is written or purchased;
i. Market on which option traded; and
j. Name and address of the broker or dealer through whom the
sale or purchase was made.
3. Options on Indices
a. The index;
b. The price at which purchased or sold;
c. The exercise price;
d. The premium;
e. The multiple;
f. The expiration date;
g. Whether the transaction is an opening, exercising,
expiring or closing transaction;
h. Whether the transaction involves a put or call;
i. Whether the option is written or purchased; and
j. The name and address of the broker or dealer through whom
the sale or purchase was made, or other applicable
settlement instructions.
4. Security Index Futures Contracts
a. The last trading date specified in the contract and, when
available, the closing level, thereof;
b. The index level on the date the contract is entered into;
c. The multiple;
d. Any margin requirements;
e. The need for a segregated margin account (in addition to
instructions, and if not already in the possession of
Custodian, Fund shall deliver a substantially complete and
executed custodial
8
safekeeping account and procedural agreement which shall
be incorporated by reference into this Custody Agreement);
and
f. The name and address of the futures commission merchant
through whom the sale or purchase was made, or other
applicable settlement instructions.
5. Options on Index Future Contracts
a. The underlying index future contract;
b. The premium;
c. The expiration date;
d. The number of options;
e. The exercise price;
f. Whether the transaction involves an opening, exercising,
expiring or closing transaction;
g. Whether the transaction involves a put or call;
h. Whether the option is written or purchased; and
i. The market on which the option is traded.
I. SECURITIES PLEDGED OR LOANED
If specifically allowed for in the prospectus of Fund, and subject
to such additional terms and conditions as Custodian may require:
1. Upon receipt of instructions, Custodian will release or cause
to be released securities held in custody to the pledgee
designated in such instructions by way of pledge or
hypothecation to secure any loan incurred by Fund; provided,
however, that the securities shall be released only upon
payment to Custodian of the monies borrowed, except that in
cases where additional collateral is required to secure a
borrowing already made, further securities may be released or
caused to be released for that purpose upon receipt of
instructions. Upon receipt of instructions, Custodian will pay,
but only from funds available for such purpose, any such loan
upon redelivery to it of the securities pledged or hypothecated
therefor and upon
9
surrender of the note or notes evidencing such loan.
2. Upon receipt of instructions, Custodian will release securities
held in custody to the borrower designated in such
instructions; provided, however, that the securities will be
released only upon deposit with Custodian of full cash
collateral as specified in such instructions, and that Fund
will retain the right to any dividends, interest or
distribution on such loaned securities. Upon receipt of
instructions and the loaned securities, Custodian will release
the cash collateral to the borrower.
J. ROUTINE MATTERS
Custodian will, in general, attend to all routine and mechanical
matters in connection with the sale, exchange, substitution,
purchase, transfer, or other dealings with securities or other
property of Fund except as may be otherwise provided in this
Agreement or directed from time to time by the Fund in writing.
K. DEPOSIT ACCOUNTS
Custodian will open and maintain one or more special purpose deposit
accounts in the name of Custodian ("Accounts"), subject only to
draft or order by Custodian upon receipt of instructions. All monies
received by Custodian from or for the account of Fund shall be
deposited in said Accounts. Barring events not in the control of the
Custodian such as strikes, lockouts or labor disputes, riots, war or
equipment or transmission failure or damage, fire, flood, earthquake
or other natural disaster, action or inaction of governmental
authority or other causes beyond its control, at 9:00 a.m., Kansas
City time, on the second business day after deposit of any check
into an Account, Custodian agrees to make Fed Funds available to the
Fund in the amount of the check. Deposits made by Federal Reserve
wire will be available to the Fund immediately and ACH wires will be
available to the Fund on the next business day. Income earned on the
portfolio securities will be credited to the Fund based on the
schedule attached as Exhibit A. The Custodian will be entitled to
reverse any credited amounts where credits have been made and monies
are not finally collected. If monies are collected after
10
such reversal, the Custodian will credit the Fund in that amount.
Custodian may open and maintain Accounts in such banks or trust
companies as may be designated by it or by Fund in writing, all such
Accounts, however, to be in the name of Custodian and subject only
to its draft or order. Funds received and held for the account of
different Portfolios shall be maintained in separate Accounts
established for each Portfolio.
L. Income and Other Payments to Fund
Custodian will:
1. Collect, claim and receive and deposit for the account of Fund
all income and other payments which become due and payable on
or after the effective date of this Agreement with respect to
the securities deposited under this Agreement, and credit the
account of Fund in accordance with the schedule attached hereto
as Exhibit A. If, for any reason, the Fund is credited with
income that is not subsequently collected, Custodian may
reverse that credited amount.
2. Execute ownership and other certificates and affidavits for all
federal, state and local tax purposes in connection with the
collection of bond and note coupons; and 3. Take such other
action as may be necessary or proper in connection with:
a. the collection, receipt and deposit of such income and
other payments, including but not limited to the
presentation for payment of:
1. all coupons and other income items requiring
presentation; and
2. all other securities which may mature or be called,
redeemed, retired or otherwise become payable and
regarding which the Custodian has actual knowledge,
or should reasonably be expected to have knowledge;
and
b. the endorsement for collection, in the name of Fund, of
all checks,
11
drafts or other negotiable instruments. Custodian,
however, will not be required to institute suit or take
other extraordinary action to enforce collection except
upon receipt of instructions and upon being indemnified to
its satisfaction against the costs and expenses of such
suit or other actions. Custodian will receive, claim and
collect all stock dividends, rights and other similar
items and will deal with the same pursuant to
instructions.
M. PAYMENT OF DIVIDENDS AND OTHER DISTRIBUTIONS
On the declaration of any dividend or other distribution on the
shares of capital stock of Fund ("Fund Shares") by the Board of
Directors of Fund, Fund shall deliver to Custodian instructions with
respect thereto. On the date specified in such instructions for the
payment of such dividend or other distribution, Custodian will pay
out of the monies held for the account of Fund, insofar as the same
shall be available for such purposes, and credit to the account of
the Dividend Disbursing Agent for Fund, such amount as may be
specified in such instructions.
N. Shares of Fund Purchased by Fund
Whenever any Fund Shares are repurchased or redeemed by Fund, Fund
or its agent shall advise Custodian of the aggregate dollar amount
to be paid for such shares and shall confirm such advice in writing.
Upon receipt of such advice, Custodian shall charge such aggregate
dollar amount to the account of Fund and either deposit the same in
the account maintained for the purpose of paying for the repurchase
or redemption of Fund Shares or deliver the same in accordance with
such advice. Custodian shall not have any duty or responsibility to
determine that Fund Shares have been removed from the proper
shareholder account or accounts or that the proper number of Fund
Shares have been cancelled and removed from the shareholder records.
O. SHARES OF FUND PURCHASED FROM FUND
Whenever Fund Shares are purchased from Fund, Fund will deposit or
cause to be deposited with Custodian the amount received for such
shares. Custodian shall
12
not have any duty or responsibility to determine that Fund Shares
purchased from Fund have been added to the proper shareholder
account or accounts or that the proper number of such shares have
been added to the shareholder records.
P. PROXIES AND NOTICES
Custodian will promptly deliver or mail or have delivered or mailed
to Fund all proxies properly signed, all notices of meetings, all
proxy statements and other notices, requests or announcements
affecting or relating to securities held by Custodian for Fund and
will, upon receipt of instructions, execute and deliver or cause its
nominee to execute and deliver or mail or have delivered or mailed
such proxies or other authorizations as may be required. Except as
provided by this Agreement or pursuant to instructions hereafter
received by Custodian, neither it nor its nominee will exercise any
power inherent in any such securities, including any power to vote
the same, or execute any proxy, power of attorney, or other similar
instrument voting any of such securities, or give any consent,
approval or waiver with respect thereto, or take any other similar
action.
Q. DISBURSEMENTS
Custodian will pay or cause to be paid, insofar as funds are
available for the purpose, bills, statements and other obligations
of Fund (including but not limited to obligations in connection with
the conversion, exchange or surrender of securities owned by Fund,
interest charges, dividend disbursements, taxes, management fees,
custodian fees, legal fees, auditors' fees, transfer agents' fees,
brokerage commissions, compensation to personnel, and other
operating expenses of Fund) pursuant to instructions of Fund setting
forth the name of the person to whom payment is to be made, the
amount of the payment, and the purpose of the payment.
R. DAILY STATEMENT OF ACCOUNTS
Custodian will, within a reasonable time, render to Fund a detailed
statement of the amounts received or paid and of securities received
or delivered for the account of Fund during each business day.
Custodian will, from time to time,
13
upon request by Fund, render a detailed statement of the securities
and monies held for Fund under this Agreement, and Custodian will
maintain such books and records as are necessary to enable it to do
so. Custodian will permit such persons as are authorized by Fund,
including Fund's independent public accountants, reasonable access
to such records or will provide reasonable confirmation of the
contents of such records, and if demanded, Custodian will permit
federal and state regulatory agencies to examine the securities,
books and records. Upon the written instructions of Fund or as
demanded by federal or state regulatory agencies, Custodian will
instruct any subcustodian to permit such persons as are authorized
by Fund, including Fund's independent public accountants, reasonable
access to such records or to provide reasonable confirmation of the
contents of such records, and to permit such agencies to examine the
books, records and securities held by such subcustodian which relate
to Fund.
S. APPOINTMENT OF SUBCUSTODIANS
1. Notwithstanding any other provisions of this Agreement, all or
any of the monies or securities of Fund may be held in
Custodian's own custody or in the custody of one or more other
banks or trust companies acting as subcustodians as may be
selected by Custodian. Any such subcustodian selected by the
Custodian must have the qualifications required for a custodian
under the 1940 Act, as amended. Custodian shall be responsible
to the Fund for any loss, damage or expense suffered or
incurred by the Fund resulting from the actions or omissions of
any subcustodians selected and appointed by Custodian (except
subcustodians appointed at the request of Fund and as provided
in Subsection 2 below) to the same extent Custodian would be
responsible to the Fund under Section 5. of this Agreement if
it committed the act or omission itself. Upon request of the
Fund, Custodian shall be willing to contract with other
subcustodians reasonably acceptable to the Custodian for
purposes of (i) effecting third-party repurchase transactions
with banks, brokers, dealers, or other entities
14
through the use of a common custodian or subcustodian, or (ii)
providing depository and clearing agency services with respect
to certain variable rate demand note securities, or (iii) for
other reasonable purposes specified by Fund; provided, however,
that the Custodian shall be responsible to the Fund for any
loss, damage or expense suffered or incurred by the Fund
resulting from the actions or omissions of any such
subcustodian only to the same extent such subcustodian is
responsible to the Custodian. The Fund shall be entitled to
review the Custodian's contracts with any such subcustodians
appointed at the request of Fund. Custodian shall be
responsible to the Fund for any loss, damage or expense
suffered or incurred by the Fund resulting from the actions or
omissions of any Depository only to the same extent such
Depository is responsible to Custodian.
2. Notwithstanding any other provisions of this Agreement, Fund's
foreign securities (as defined in Rule 17f-5(c)(1) under the
▇▇▇▇ ▇▇▇) and Fund's cash or cash equivalents, in amounts
deemed by the Fund to be reasonably necessary to effect Fund's
foreign securities transactions, may be held in the custody of
one or more banks or trust companies acting as subcustodians,
and thereafter, pursuant to a written contract or contracts as
approved by Fund's Board of Directors, may be transferred to
accounts maintained by any such subcustodian with eligible
foreign custodians, as defined in Rule 17f-5(c)(2). Custodian
shall be responsible to the Fund for any loss, damage or
expense suffered or incurred by the Fund resulting from the
actions or omissions of any foreign subcustodian only to the
same extent the foreign subcustodian is liable to the domestic
subcustodian with which the Custodian contracts for foreign
subcustody purposes.
15
T. ACCOUNTS AND RECORDS
Custodian will prepare and maintain, with the direction and as
interpreted by the Fund, Fund's accountants and/or other advisors,
in complete, accurate and current form all accounts and records (i)
required to be maintained by Fund with respect to portfolio
transactions under Rule 31a of the 1940 Act, (ii) required to be
maintained as a basis for calculation of the Fund's net asset value,
and (iii) as otherwise agreed upon between the parties. Custodian
will preserve said records in the manner and for the periods
prescribed in the 1940 Act or for such longer period as is agreed
upon by the parties. Custodian relies upon Fund to furnish, in
writing or its electronic or digital equivalent, accurate and timely
information needed by Custodian to complete Fund's records and
perform daily calculation of the Fund's net asset value. Custodian
shall incur no liability and Fund shall indemnify and hold harmless
Custodian from and against any liability arising from any failure of
Fund to furnish such information in a timely and accurate manner,
even if Fund subsequently provides accurate but untimely
information. It shall be the responsibility of Fund to furnish
Custodian with the declaration, record and payment dates and amounts
of any dividends or income and any other special actions required
concerning each of its securities when such information is not
readily available from generally accepted securities industry
services or publications.
U. ACCOUNTS AND RECORDS PROPERTY OF FUND
Custodian acknowledges that all of the accounts and records
maintained by Custodian pursuant to this Agreement are the property
of Fund, and will be made available to Fund for inspection or
reproduction within a reasonable period of time, upon demand.
Custodian will assist Fund's independent auditors, or upon approval
of Fund, or upon demand, any regulatory body, in any requested
review of Fund's accounts and records but shall be reimbursed by
Fund for all expenses and employee time invested in any such review
outside of routine and normal periodic reviews. Upon receipt from
Fund of the necessary information or
17
instructions, Custodian will supply information from the books and
records it maintains for Fund that Fund needs for tax returns,
questionnaires, periodic reports to shareholders and such other
reports and information requests as Fund and Custodian shall agree
upon from time to time.
V. ADOPTION OF PROCEDURES
Custodian and Fund may from time to time adopt procedures as they
agree upon, and Custodian may conclusively assume that no procedure
approved or directed by Fund or its accountants or other advisors
conflicts with or violates any requirements of its prospectus,
articles of incorporation, bylaws, any applicable law, rule or
regulation, or any order, decree or agreement by which Fund may be
bound. Fund will be responsible to notify Custodian of any changes
in statutes, regulations, rules, requirements or policies which
might necessitate changes in Custodian's responsibilities or
procedures.
W. CALCULATION OF NET ASSET VALUE
Custodian will calculate Fund's net asset value, in accordance with
Fund's prospectus. Custodian will price the securities and foreign
currency holdings of Fund for which market quotations are available
by the use of outside services designated by Fund which are normally
used and contracted with for this purpose; all other securities and
foreign currency holdings will be priced in accordance with Fund's
instructions. Custodian will have no responsibility for the accuracy
of the prices quoted by these outside services or for the
information supplied by Fund or for acting upon such instructions.
X. ADVANCES
In the event Custodian or any subcustodian shall, in its sole
discretion, advance cash or securities for any purpose (including
but not limited to securities settlements, purchase or sale of
foreign exchange or foreign exchange contracts and assumed
settlement) for the benefit of any Portfolio, the advance shall be
payable by the Fund on demand. Any such cash advance shall be
subject to an overdraft charge at the rate set forth in the
then-current fee schedule from the date
17
advanced until the date repaid. As security for each such advance,
Fund hereby grants Custodian and such subcustodian a lien on and
security interest in all property at any time held for the account
of the applicable Portfolio, including without limitation all assets
acquired with the amount advanced. Should the Fund fail to promptly
repay the advance, the Custodian and such subcustodian shall be
entitled to utilize available cash and to dispose of such
Portfolio's assets pursuant to applicable law to the extent
necessary to obtain reimbursement of the amount advanced and any
related overdraft charges.
Y. EXERCISE OF RIGHTS; TENDER OFFERS
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, 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.
4. INSTRUCTIONS.
A. The term "instructions", as used herein, means written (including
telecopied or telexed) or oral instructions which Custodian
reasonably believes were given by a designated representative of
Fund. Fund shall deliver to Custodian, prior to delivery of any
assets to Custodian and thereafter from time to time as changes
therein are necessary, written instructions naming one or more
designated representatives to give instructions in the name and on
behalf of Fund, which instructions may be received and accepted by
Custodian as conclusive evidence of the authority of any designated
representative to act for Fund and may be considered to be in full
force and effect (and Custodian will be fully protected in acting in
reliance thereon) until receipt by Custodian of notice to the
contrary. Unless such written instructions delegating authority to
any person to give instructions specifically limit such authority to
specific matters or require that the
19
approval of anyone else will first have been obtained, Custodian
will be under no obligation to inquire into the right of such
person, acting alone, to give any instructions whatsoever which
Custodian may receive from such person. If Fund fails to provide
Custodian any such instructions naming designated representatives,
any instructions received by Custodian from a person reasonably
believed to be an appropriate representative of Fund shall
constitute valid and proper instructions hereunder. "Designated
representatives" of Fund may include its employees and agents,
including investment managers and their employees.
B. No later than the next business day immediately following each oral
instruction, Fund will send Custodian written confirmation of such
oral instruction. At Custodian's sole discretion, Custodian may
record on tape, or otherwise, any oral instruction whether given in
person or via telephone, each such recording identifying the date
and the time of the beginning and ending of such oral instruction.
C. If Custodian shall provide Fund direct access to any computerized
recordkeeping and reporting system used hereunder or if Custodian
and Fund shall agree to utilize any electronic system of
communication, Fund shall be fully responsible for any and all
consequences of the use or misuse of the terminal device, passwords,
access instructions and other means of access to such system(s)
which are utilized by, assigned to or otherwise made available to
the Fund. Fund agrees to implement and enforce appropriate security
policies and procedures to prevent unauthorized or improper access
to or use of such system(s). Custodian shall be fully protected in
acting hereunder upon any instructions, communications, data or
other information received by Custodian by such means as fully and
to the same effect as if delivered to Custodian by written
instrument signed by the requisite authorized representative(s) of
Fund. Fund shall indemnify and hold Custodian harmless from and
against any and all losses, damages, costs, charges, counsel fees,
payments, expenses and liability which may be suffered or incurred
by Custodian as a result of the use or misuse, whether authorized or
unauthorized,
19
of any such system(s) by Fund or by any person who acquires access
to such system(s) through the terminal device, passwords, access
instructions or other means of access to such system(s) which are
utilized by, assigned to or otherwise made available to the Fund,
except to the extent attributable to any negligence or willful
misconduct by Custodian.
5. LIMITATION OF LIABILITY OF CUSTODIAN.
A. Custodian shall at all times use reasonable care and due diligence
and act in good faith in performing its duties under this Agreement.
Custodian shall not be responsible for, and the Fund shall indemnify
and hold Custodian harmless from and against, any and all losses,
damages, costs, charges, counsel fees, payments, expenses and
liability which may be asserted against Custodian, incurred by
Custodian or for which Custodian may be held to be liable, arising
out of or attributable to:
1. All actions taken by Custodian pursuant to this Agreement or
any instructions provided to it hereunder, provided that
Custodian has acted in good faith and with due diligence and
reasonable care; and
2. The Fund's refusal or failure to comply with the terms of this
Agreement (including without limitation the Fund's failure to
pay or reimburse Custodian under this indemnification
provision), the Fund's negligence or willful misconduct, or the
failure of any representation or warranty of the Fund hereunder
to be and remain true and correct in all respects at all times.
B. Custodian may request and obtain at the expense of Fund the advice
and opinion of counsel for Fund or of its own counsel with respect
to questions or matters of law, and it shall be without liability to
Fund for any action taken or omitted by it in good faith, in
conformity with such advice or opinion. If Custodian reasonably
believes that it could not prudently act according to the
instructions of the Fund or the Fund's accountants or counsel, it
may in its discretion, with notice to the Fund, not act according to
such instructions.
20
C. Custodian may rely upon the advice and statements of Fund, Fund's
accountants and officers or other authorized individuals, and other
persons believed by it in good faith to be expert in matters upon
which they are consulted, and Custodian shall not be liable for any
actions taken, in good faith, upon such advice and statements.
D. If Fund requests Custodian in any capacity to take any action which
involves the payment of money by Custodian, or which might make it
or its nominee liable for payment of monies or in any other way,
Custodian shall be indemnified and held harmless by Fund against any
liability on account of such action; provided, however, that nothing
herein shall obligate Custodian to take any such action except in
its sole discretion.
E. Custodian shall be protected in acting as custodian hereunder upon
any instructions, advice, notice, request, consent, certificate or
other instrument or paper appearing to it to be genuine and to have
been properly executed. Custodian shall be entitled to receive upon
request as conclusive proof of any fact or matter required to be
ascertained from Fund hereunder a certificate signed by an officer
or designated representative of Fund. Fund shall also provide
Custodian instructions with respect to any matter concerning this
Agreement requested by Custodian.
F. Custodian shall be under no duty or obligation to inquire into, and
shall not be liable for:
1. The validity of the issue of any securities purchased by or for
Fund, the legality of the purchase of any securities or foreign
currency positions or evidence of ownership required by Fund to
be received by Custodian, or the propriety of the decision to
purchase or amount paid therefor;
2. The legality of the sale of any securities or foreign currency
positions by or for Fund, or the propriety of the amount for
which the same are sold;
3. The legality of the issue or sale of any Fund Shares, or the
sufficiency of the amount to be received therefor;
21
4. The legality of the repurchase or redemption of any Fund
Shares, or the propriety of the amount to be paid therefor; or
5. The legality of the declaration of any dividend by Fund, or the
legality of the issue of any Fund Shares in payment of any
stock dividend.
G. Custodian shall not be liable for, or considered to be Custodian of,
any money represented by any check, draft, wire transfer,
clearinghouse funds, uncollected funds, or instrument for the
payment of money to be received by it on behalf of Fund until
Custodian actually receives such money; provided, however, that it
shall advise Fund promptly if it fails to receive any such money in
the ordinary course of business and shall cooperate with Fund toward
the end that such money shall be received.
H. Except as provided in Section 3.S., Custodian shall not be
responsible for loss occasioned by the acts, neglects, defaults or
insolvency of any broker, bank, trust company, or any other person
with whom Custodian may deal.
I. Custodian shall not be responsible or liable for the failure or
delay in performance of its obligations under this Agreement, or
those of any entity for which it is responsible hereunder, arising
out of or caused, directly or indirectly, by circumstances beyond
the affected entity's reasonable control, including, without
limitation: any interruption, loss or malfunction of any utility,
transportation, computer (hardware or software) or communication
service; inability to obtain labor, material, equipment or
transportation, or a delay in mails; governmental or exchange
action, statute, ordinance, rulings, regulations or direction; war,
strike, riot, emergency, civil disturbance, terrorism, vandalism,
explosions, labor disputes, freezes, floods, fires, tornados, acts
of God or public enemy, revolutions, or insurrection.
J. EXCEPT FOR VIOLATIONS OF SECTION 9, IN NO EVENT AND UNDER NO
CIRCUMSTANCES SHALL EITHER PARTY TO THIS AGREEMENT BE LIABLE TO
ANYONE, INCLUDING, WITHOUT LIMITATION TO THE OTHER PARTY, FOR
CONSEQUENTIAL,
22
SPECIAL OR PUNITIVE DAMAGES FOR ANY ACT OR FAILURE TO ACT UNDER ANY
PROVISION OF THIS AGREEMENT EVEN IF ADVISED OF THIS POSSIBILITY
THEREOF.
6. COMPENSATION. In consideration for its services hereunder as Custodian
and investment accounting and recordkeeping agent, Fund will pay to
Custodian such compensation as shall be set forth in a separate fee
schedule to be agreed to by Fund and Custodian from time to time. A copy
of the initial fee schedule is attached hereto and incorporated herein by
reference. Custodian shall also be entitled to receive, and Fund agrees
to pay to Custodian, on demand, reimbursement for Custodian's cash
disbursements and reasonable out-of-pocket costs and expenses, including
attorney's fees, incurred by Custodian in connection with the performance
of services hereunder. Custodian may charge such compensation against
monies held by it for the account of Fund. Custodian will also be
entitled to charge against any monies held by it for the account of Fund
the amount of any loss, damage, liability, advance, overdraft or expense
for which it shall be entitled to reimbursement from Fund, including but
not limited to fees and expenses due to Custodian for other services
provided to the Fund by Custodian. Custodian will be entitled to
reimbursement by the Fund for the losses, damages, liabilities, advances,
overdrafts and expenses of subcustodians only to the extent that (i)
Custodian would have been entitled to reimbursement hereunder if it had
incurred the same itself directly, and (ii) Custodian is obligated to
reimburse the subcustodian therefor.
7. TERM AND TERMINATION. The initial term of this Agreement shall be for a
period of ________. Thereafter, either party to this Agreement may
terminate the same by notice in writing, delivered or mailed, postage
prepaid, to the other party hereto and received not less than ninety (90)
days prior to the date upon which such termination will take effect. Upon
termination of this Agreement, Fund will pay Custodian its fees and
compensation due hereunder and its reimbursable disbursements, costs and
expenses paid or incurred to such date and Fund shall designate a
successor custodian by notice in writing to Custodian by the termination
date. In the event no written order designating a
23
successor custodian has been delivered to Custodian on or before the date
when such termination becomes effective, then Custodian may, at its
option, deliver the securities, funds and properties of Fund to a bank or
trust company at the selection of Custodian, and meeting the
qualifications for custodian set forth in the 1940 Act and having not
less that Two Million Dollars ($2,000,000) aggregate capital, surplus and
undivided profits, as shown by its last published report, or apply to a
court of competent jurisdiction for the appointment of a successor
custodian or other proper relief, or take any other lawful action under
the circumstances; provided, however, that Fund shall reimburse Custodian
for its costs and expenses, including reasonable attorney's fees,
incurred in connection therewith. Custodian will, upon termination of
this Agreement and payment of all sums due to Custodian from Fund
hereunder or otherwise, deliver to the successor custodian so specified
or appointed, or as specified by the court, at Custodian's office, all
securities then held by Custodian hereunder, duly endorsed and in form
for transfer, and all funds and other properties of Fund deposited with
or held by Custodian hereunder, and Custodian will co-operate in
effecting changes in book-entries at all Depositories. Upon delivery to a
successor custodian or as specified by the court, Custodian will have no
further obligations or liabilities under this Agreement. Thereafter such
successor will be the successor custodian under this Agreement and will
be entitled to reasonable compensation for its services. In the event
that securities, funds and other properties remain in the possession of
the Custodian after the date of termination hereof owing to failure of
the Fund to appoint a successor custodian, the Custodian shall be
entitled to compensation as provided in the then-current fee schedule
hereunder for its services during such period as the Custodian retains
possession of such securities, funds and other properties, and the
provisions of this Agreement relating to the duties and obligations of
the Custodian shall remain in full force and effect.
8. NOTICES. Notices, requests, instructions and other writings addressed to
Fund at ___________________________________, or at such other address as
Fund may have designated to Custodian in writing, will be deemed to have
been properly given to Fund hereunder; and notices, requests,
instructions and other writings addressed to Custodian at
24
its offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Custody Department, or to such other address as it may have
designated to Fund in writing, will be deemed to have been properly given
to Custodian hereunder.
9. CONFIDENTIALITY.
A. Fund shall preserve the confidentiality of the computerized
investment portfolio recordkeeping and accounting system used by
Custodian (the "Portfolio Accounting System") and the tapes, books,
reference manuals, instructions, records, programs, documentation
and information of, and other materials relevant to, the Portfolio
Accounting System and the business of Custodian ("Confidential
Information"). Fund agrees that it will not voluntarily disclose any
such Confidential Information to any other person other than its own
employees who reasonably have a need to know such information
pursuant to this Agreement. Fund shall return all such Confidential
Information to Custodian upon termination or expiration of this
Agreement.
B. Fund has been informed that the Portfolio Accounting System is
licensed for use by Custodian from DST Systems, Inc. ("Licensor"),
and Fund acknowledges that Custodian and Licensor have proprietary
rights in and to the Portfolio Accounting System and all other
Custodian or Licensor programs, code, techniques, know-how, data
bases, supporting documentation, data formats, and procedures,
including without limitation any changes or modifications made at
the request or expense or both of Fund (collectively, the "Protected
Information"). Fund acknowledges that the Protected Information
constitutes confidential material and trade secrets of Custodian and
Licensor. Fund shall preserve the confidentiality of the Protected
Information, and Fund hereby acknowledges that any unauthorized use,
misuse, disclosure or taking of Protected Information, residing or
existing internal or external to a computer, computer system, or
computer network, or the knowing and unauthorized accessing or
causing to be accessed of any computer, computer system, or computer
network, may be subject to civil liabilities and criminal penalties
under applicable law. Fund shall so inform employees and
25
agents who have access to the Protected Information or to any
computer equipment capable of accessing the same. Licensor is
intended to be and shall be a third party beneficiary of the Fund's
obligations and undertakings contained in this paragraph.
10. MULTIPLE PORTFOLIOS. If Fund is comprised of more than one Portfolio:
A. Each Portfolio shall be regarded for all purposes hereunder as a
separate party apart from each other Portfolio. Unless the context
otherwise requires, with respect to every transaction covered by
this Agreement, every reference herein to the Fund shall be deemed
to relate solely to the particular Portfolio to which such
transaction relates. Under no circumstances shall the rights,
obligations or remedies with respect to a particular Portfolio
constitute a right, obligation or remedy applicable to any other
Portfolio. The use of this single document to memorialize the
separate agreement of each Portfolio is understood to be for
clerical convenience only and shall not constitute any basis for
joining the Portfolios for any reason.
B. Additional Portfolios may be added to this Agreement, provided that
Custodian consents to such addition. Rates or charges for each
additional Portfolio shall be as agreed upon by Custodian and Fund
in writing.
11. MISCELLANEOUS.
A. This Agreement shall be construed according to, and the rights and
liabilities of the parties hereto shall be governed by, the laws of
the State of Missouri, without reference to the choice of laws
principles thereof.
B. All terms and provisions of this Agreement shall be binding upon,
inure to the benefit of and be enforceable by the parties hereto and
their respective successors and permitted assigns.
C. The representations and warranties, the indemnifications extended
hereunder, and the provisions of Section 9. hereof are intended to
and shall continue after and survive the expiration, termination or
cancellation of this Agreement.
D. No provisions of the Agreement may be amended or modified in any
manner
26
except by a written agreement properly authorized and executed by
each party hereto.
E. The failure of either party to insist upon the performance of any
terms or conditions of this Agreement or to enforce any rights
resulting from any breach of any of the terms or conditions of this
Agreement, including the payment of damages, shall not be construed
as a continuing or permanent waiver of any such terms, conditions,
rights or privileges, but the same shall continue and remain in full
force and effect as if no such forbearance or waiver had occurred.
No waiver, release or discharge of any party's rights hereunder
shall be effective unless contained in a written instrument signed
by the party sought to be charged.
F. The captions in the Agreement are included for convenience of
reference only, and in no way define or limit any of the provisions
hereof or otherwise affect their construction or effect.
G. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but all of which together shall
constitute one and the same instrument.
H. If any provision of this Agreement shall be determined to be invalid
or unenforceable, the remaining provisions of this Agreement shall
not be affected thereby, and every provision of this Agreement shall
remain in full force and effect and shall remain enforceable to the
fullest extent permitted by applicable law.
I. This Agreement may not be assigned by either party hereto without
the prior written consent of the other party.
J. Neither the execution nor performance of this Agreement shall be
deemed to create a partnership or joint venture by and between
Custodian and Fund.
K. Except as specifically provided herein, this Agreement does not in
any way affect any other agreements entered into among the parties
hereto and any actions taken or omitted by either party hereunder
shall not affect any rights or obligations of the other party
hereunder.
27
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective duly authorized officers.
INVESTORS FIDUCIARY TRUST COMPANY
By:______________________________
Title:___________________________
MONUMENT SERIES FUND, INC.
By:______________________________
Title:___________________________
28
EXHIBIT A
INVESTORS FIDUCIARY TRUST COMPANY
AVAILABILITY SCHEDULE BY TRANSACTION TYPE
=============================================================================================================================
| | | | |
| TRANSACTION | DTC | PHYSICAL | FED |
| | | | |
----------------------------------------------------------------------------------------------------------------------------
| | | | | |
|TYPE | CREDIT DATE | FUNDS TYPE | CREDIT DATE | FUNDS TYPE | CREDIT DATE | FUNDS TYPE |
|---- | ----------- | ----------- | ----------- | ---------- | ----------- | ---------- |
|----------------------------------------------------------------------------------------------------------------------------
| | | | | | | |
|Calls Puts | As Received | C or F* | As Received | C or F* | | |
|----------------------------------------------------------------------------------------------------------------------------
| | | | | | | |
|Maturities | As Received | C or F* | Mat. Date | C or F* | Mat. Date | F |
|----------------------------------------------------------------------------------------------------------------------------
| | | | | | | |
|Tender Reorgs. | As Received | C | As Received | C | N/A | |
|----------------------------------------------------------------------------------------------------------------------------
| | | | | | | |
|Dividends | Paydate | C | Paydate | C | N/A | |
|----------------------------------------------------------------------------------------------------------------------------
| | | | | | | |
|Floating Rate Int. | Paydate | C | Paydate | C | N/A | |
|----------------------------------------------------------------------------------------------------------------------------
| | | | | | | |
|Floating Rate Int. | N/A | | As Rate | C | N/A | |
|(No Rate) | | | Received | | | |
|----------------------------------------------------------------------------------------------------------------------------
| | | | | | | |
|Mtg. Backed P&I | Paydate | C | Paydate + 1 | C | Paydate | F |
| | | | Bus. Day | | | |
|----------------------------------------------------------------------------------------------------------------------------
| | | | | | | |
|Fixed Rate Int. | Paydate | C | Paydate | C | Paydate | F |
|----------------------------------------------------------------------------------------------------------------------------
| | | | | | | |
|Euroclear | N/A | C | Paydate | C | | |
|============================================================================================================================
Legend
C = Clearinghouse Funds
F = Fed Funds
N/A = Not Applicable
* Availability based on how received.
29