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Exhibit (j)
CUSTODY AGREEMENT
AGREEMENT, made the 1st day of March, 1995 by and between Xxxxxx High
Income Trust, a Massachusetts business trust having its principal place of
business at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 ("Fund") and
Investors Fiduciary Trust Company, a trust company organized and existing under
the laws of Missouri, having its principal place of business at Kansas City,
Missouri ("Custodian").
WHEREAS, Fund wants to appoint Investors Fiduciary Trust Company as
Custodian to have custody of a portion of Fund's portfolio securities and monies
pursuant to this Agreement; and, for purposes related to its foreign investments
held outside the United States, Fund wants another custodian to have custody of
the remainder of Fund's portfolio securities and monies pursuant to a separate
agreement; and
WHEREAS, Investors Fiduciary Trust Company wants 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 Investors Fiduciary Trust Company
as Custodian of Fund which is to include:
A. Custody of the securities and monies at any time owned by Fund
and received by Custodian; and
B. Performing certain accounting and record keeping functions
relating to its function as Custodian for Fund and each of its
Portfolios.
2. DELIVERY OF CORPORATE DOCUMENTS.
Fund has delivered or will deliver to Custodian prior to the effective
date of this Agreement, copies of the following documents and all
amendments or supplements thereto, properly certified or authenticated:
A. Resolutions of the Board of Trustees of Fund appointing
Investors Fiduciary Trust Company as Custodian hereunder and approving
the form of this Agreement; and
B. Resolutions of the Board of Trustees of Fund
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authorizing certain persons to give instructions on behalf of Fund to
Custodian and authorizing Custodian to rely upon written instructions
over their signatures.
3. DUTIES AND RESPONSIBILITIES OF CUSTODIAN.
A. Delivery of Assets
All Fund's securities and monies, except as permitted by the
Investment Company Act of 1940 ("1940 Act"), will be delivered either
to Custodian or to The Chase Manhattan Bank, N.A., pursuant to a
separate custody agreement. 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, portfolio
securities acquired by it and monies then owned by it except as
permitted by the 1940 Act 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. All securities so
delivered to Custodian (other than bearer securities) shall be
registered in the name of Fund or its nominee, or of a nominee of
Custodian, or shall be properly endorsed and in form for transfer
satisfactory to Custodian.
B. Safekeeping
Custodian will receive delivery of and keep safely the assets of
Fund delivered to it from time to time. Custodian will not deliver 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
this Agreement. Custodian shall be responsible only for the monies and
securities of Fund held directly by it or its nominees or sub-custodian
under this Agreement; provided that Custodian's responsibility for any
sub-custodian appointed at the Fund's direction for purposes of (i)
effecting third-party repurchase transactions with banks, brokers,
dealers, or other entities through the use of a common custodian or
sub-custodian; or (ii) providing depository and clearing agency
services with respect to certain variable rate demand note securities
("special sub-custodian") shall be further limited as set forth in this
Agreement. Custodian may participate directly or indirectly through a
sub-custodian in the Depository Trust Company, the Treasury/Federal
Reserve Book Entry System, the Participants Trust Company and any other
securities depository approved by the Board of Trustees of the Fund,
subject to compliance with the provisions of Rule 17f-4
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under the 1940 Act including, without limitation, the specific
provisions of subsections (a) (1) through (d) (4) thereof.
C. Registration of Securities
Custodian will hold stocks and other registerable portfolio
securities of Fund registered in the name of Fund or in the name of any
nominee of Custodian for whose fidelity and liabilities Custodian shall
be fully responsible, or in street certificate form, so-called, with or
without any indication of fiduciary capacity. Unless otherwise
instructed, Custodian will register all such portfolio securities in
the name of its authorized nominee.
D. Exchange of Securities
Upon receipt of instructions, 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 therefore, 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 surrendering any convertible security.
E. Purchases or Sales of Investments of Fund
Fund shall, on each business day on which a purchase or sale of a
portfolio security shall be made by it, deliver to Custodian
instructions which shall specify with respect to each such transaction:
(1) The name of the issuer and description of the security;
(2) The number of shares or the principal amount purchased or sold, and
accrued interest, if any;
(3) The trade date;
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(4) The settlement date;
(5) The date when the securities sold were purchased by Fund or other
information identifying the securities sold and to be delivered;
(6) The price per unit and the brokerage commission, taxes and other
expenses in connection with the transaction;
(7) The total amount payable or receivable upon such transaction; and
(8) The name of the person from whom or the broker or dealer through whom
the transaction was made.
In accordance with such purchase instructions, Custodian shall pay for
out of monies held for the account of Fund, but only insofar as monies
are available therein for such purpose, and receive the portfolio
securities so purchased by or for the account of Fund. Such payment
shall be made only upon receipt by Custodian of the securities so
purchased in form for transfer satisfactory to Custodian.
In accordance with such sales 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, such delivery to be made only upon
receipt of payment therefor in such form as shall be satisfactory to
Custodian, with the understanding that Custodian may deliver or cause
to be delivered securities for payment in accordance with the customs
prevailing among dealers in securities.
F. Purchases or Sales of Options and Futures Transactions
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) Securities 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 opening, exercising, expiring or closing the transaction;
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(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.
(2) 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) Name and address of the broker or dealer through whom the sale or
purchase was made.
(3) Securities Index Futures Transactions
(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
safekeeping account and procedural agreement which shall be
incorporated into this Custody Agreement); and
(f) The name and address of the futures commission merchant through
whom the sale or purchase was made.
(4) Options on Index Futures Contracts
(a) The underlying index futures 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;
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(h) Whether the option is written or purchased; and
(i) The market on which the option is traded.
G. Securities Pledged to Secure Loans
(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 cure 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 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 shall 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.
H. 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 Board of Trustees of Fund.
I. Demand Deposit Account
Custodian will open and maintain a demand deposit account or
accounts in the name of Custodian, 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
account or accounts.
When properly authorized by a resolution of the Board of Trustees
of Fund, Custodian may open and maintain an
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additional demand deposit account or accounts in such other banks or
trust companies as may be designated in such resolution, such accounts,
however, to be in the name of Custodian and subject only to its draft
or order.
J. 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 with
such income on the payable date;
(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;
(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 notice of which is contained in publications of
the type to which it normally subscribes for such
purpose; and
(b) the endorsement for collection, in the name of Fund, of
all checks, drafts or other negotiable instruments.
Custodian, however, shall 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 deal with the same pursuant to instructions. Unless
prior instructions have been received to the contrary, Custodian will,
without further
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instructions, sell any rights held for the account of Fund on the last
trade date prior to the date of expiration of such rights.
K. Payment of Dividends and Other Distributions
On the declaration of any dividend or other distribution on the
shares of beneficial interest of any Portfolio ("Portfolio Shares") by
the Board of Trustees of Fund, Fund shall deliver to Custodian
instructions with respect thereto, including a copy of the Resolution
of said Board of Trustees certified by the Secretary or an Assistant
Secretary of Fund wherein there shall be set forth the record date as
of which shareholders are entitled to receive such dividend or
distribution, and the amount payable per share on such dividend or
distribution.
On the date specified in such Resolution for the payment of such
dividend or other distribution, Custodian shall 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 necessary to pay the amount per
share payable in cash on Portfolio Shares issued and outstanding on the
record date established by such Resolution.
L. Portfolio Shares Purchased by Fund
Whenever any Portfolio Shares are purchased 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 custody account of Fund and either deposit the same in the account
maintained for the purpose of paying for the purchase of Portfolio
Shares or deliver the same in accordance with such advice.
M. Portfolio Shares Purchased from Fund
Whenever Portfolio Shares are purchased from Fund, Fund will
deposit or cause to be deposited with Custodian the amount received for
such shares. Custodian shall 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.
N. Proxies and Notices
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Custodian will promptly deliver or mail 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 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 shall 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.
O. 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, variation margin, dividend disbursements, taxes, management
fees, administration-distribution 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.
P. Books, Records and Accounts
Custodian acknowledges that all the records it shall prepare and
maintain pursuant to this Agreement shall be the property of Fund and
that upon request of Fund it shall make Fund's records available to it,
along with such other information and data as are reasonably requested
by Fund, for inspection, audit or copying, or turn said records over to
Fund.
Custodian shall, within a reasonable time, render to Fund as of
the close of business on each day, a detailed statement of the amounts
received or paid and of securities received or delivered for the
account of Fund during said day. Custodian shall, from time to time,
upon request by Fund, render a detailed statement of the securities and
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monies held for Fund under this Agreement, and Custodian shall maintain
such books and records as are necessary to enable it do so and shall
permit such persons as are authorized by Fund, including Fund's
independent public accountants, to examine such records or to confirm
the contents of such records; and, if demanded, shall permit federal
and state regulatory agencies to examine said securities, books and
records. Upon the written instructions of Fund or as demanded by
federal or state regulatory agencies, Custodian shall instruct any
sub-custodian to permit such persons as are authorized by Fund to
examine the books, records and securities held by such sub-custodian
which relate to Fund.
Q. Appointment of Sub-Custodian
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 sub-custodians as may be approved by resolutions of Fund's
Board of Trustees, evidenced by a copy thereof certified by the
Secretary or Assistant Secretary of Fund. Any sub-custodian must have
the qualifications required for custodians under the 1940 Act unless
exempted therefrom. Any sub-custodian may participate directly or
indirectly in the Depository Trust Company, the Treasury/Reserve Book
Entry System, the Participants Trust Company and any other securities
depository approved by the Board of Trustees of the Fund to the same
extent and subject to the same conditions as provided hereunder.
Neither Custodian nor sub-custodian shall be entitled to reimbursement
by Fund for any fees or expenses of any sub-custodian; provided that
Custodian shall not be liable for, and Fund shall hold Custodian
harmless from, the expenses of any special sub-custodian. The
appointment of a sub-custodian shall not relieve Custodian of any of
its obligations hereunder; provided that Custodian shall be responsible
to Fund for any loss, damage, or expense suffered or incurred by Fund
resulting from the actions or omissions of a special sub-custodian only
to the extent the special sub-custodian is liable to Custodian.
R. Multiple Portfolios
If Fund shall issue shares of more than one Portfolio during the
term hereof, Custodian agrees that all securities and other assets of
Fund shall be segregated by Portfolio and all books and records,
account values or actions shall be maintained, held, made or taken, as
the case may be, separately for each Portfolio.
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S. Other Custodian
Pursuant to instructions, Custodian will transmit securities and
moneys of Fund to The Chase Manhattan Bank, N.A., as custodian for
Fund.
4. INSTRUCTIONS.
A. The term "instructions", as used herein, means written or oral
instructions to Custodian from an authorized person of Fund. Certified
copies of resolutions of the Board of Trustees of Fund naming one or
more persons authorized to give instructions in the name and on behalf
of Fund may be received and accepted by Custodian as conclusive
evidence of the authority of any person so to act and may be considered
to be in full force and effect (and Custodian shall be fully protected
in acting in reliance thereon) until receipt by Custodian of notice to
the contrary. Unless the resolution authorizing any person to give
instructions specifically requires that the approval of anyone else
shall first have been obtained, Custodian shall be under no obligation
to inquire into the right of the person giving such instructions to do
so. Notwithstanding any of the foregoing provisions of this Section 4,
no authorizations or instructions received by Custodian from Fund shall
be deemed to authorize or permit any trustee, officer, employee, or
agent of Fund to withdraw any of the securities or monies of Fund upon
the mere receipt of instructions from such trustee, officer, employee
or agent.
B. No later than the next business day immediately following each
oral instruction referred to herein, Fund shall give Custodian written
confirmation of each such oral instruction. Either party may
electronically record any oral instruction whether given in person or
via telephone.
5. LIMITATION OF LIABILITY OF CUSTODIAN
A. Custodian shall hold harmless and indemnify Fund from and
against any loss or liability arising out of Custodian's failure to
comply with the terms of this Agreement or arising out of Custodian's
negligence, willful misconduct, or bad faith. Custodian may request and
obtain 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.
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B. If Fund requires Custodian in any capacity to take, with
respect to any securities, any action which involves the payment of
money by it, or which in Custodian's opinion might make it or its
nominee liable for payment of monies or in any other way, Custodian
shall be and be kept indemnified by Fund in an amount and form
satisfactory to Custodian against any liability on account of such
action.
C. Custodian shall be entitled to receive, and Fund agrees to pay
to Custodian, on demand, reimbursement for such cash disbursements,
costs and expenses as may be agreed upon from time to time by Custodian
and Fund.
D. Custodian shall be protected in acting as custodian hereunder
upon any instructions, advice, notice, request, consent, certificate or
other instrument or paper reasonably 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 Fund hereunder, a certificate
signed by Fund's President, or other officer specifically authorized
for such purpose.
E. Without limiting the generality of the foregoing, 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 thereof 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 sales of any securities by or for
Fund, or the propriety of the amount paid therefor;
(3) The legality of the issue or sale of any shares of
Fund, or the sufficiency of the amount to be received
therefor;
(4) The legality of the purchase of any shares of Fund,
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
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shares of Fund in payment of any share dividend.
F. Custodian shall not be liable for, or considered to be the
custodian of, any money represented by any check, draft, wire transfer,
clearing house funds, uncollected funds, or instrument for the payment
of money received by it on behalf of Fund, until Custodian actually
receives such money, provided only that it shall advise Fund promptly
if it fails to receive any such money in the ordinary course of
business, and use its best efforts and cooperate with Fund toward the
end that such money shall be received.
G. Subject to the obligations of Custodian under Section 3.B.
hereof, 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 in the
absence of negligence, misconduct or bad faith on the part of
Custodian.
H. Custodian or any sub-custodian shall provide Fund for its
approval by its Board of Trustees agreements with banks or trust
companies which will act as sub-custodian for Fund pursuant to this
Agreement; and, as set forth in Section 3.B hereof, Custodian shall be
responsible for the monies and securities of the Fund held by it or its
nominees or sub-custodians under this Agreement, but not for monies and
securities of the Fund held by any special sub-custodian except to the
extent the special sub-custodian is liable to Custodian.
6. COMPENSATION.
Fund shall pay to Custodian such compensation at such times as may from
time to time be agreed upon in writing by Custodian and Fund. Custodian may
charge such compensation against monies held by it for the account of Fund.
Custodian shall also be entitled, notwithstanding the provisions of Sections 5B
or 5C hereof, to charge against any monies held by it for the account of Fund
the amount of any loss, damage, liability or expense for which it shall be
entitled to reimbursement under the provisions of this Agreement. Custodian
shall not be entitled to reimbursement by Fund for any loss or expenses of any
sub-custodian; provided that Custodian shall not be liable for, and Fund shall
hold Custodian harmless from, the expenses of any special sub-custodian.
7. TERMINATION.
Either party to this Agreement may terminate the same by notice in writing,
delivered or mailed, postage prepaid, to the
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other party hereto and received not less than sixty (60) days prior to the date
upon which such termination shall take effect. Upon termination of this
Agreement, Fund shall pay to Custodian such compensation for its reimbursable
disbursements, costs and expenses paid or incurred to such date and Fund shall
use its best efforts to obtain a successor custodian. Unless the holders of a
majority of the outstanding shares of Fund vote to have the securities, funds
and other properties held under this Agreement delivered and paid over to some
other person, firm or corporation specified in the vote, having not less than
Two Million Dollars ($2,000,000) aggregate capital, surplus and undivided
profits, as shown by its last published report, and meeting such other
qualifications for custodian as set forth in the Bylaws of Fund, the Board of
Trustees of Fund shall, forthwith upon giving or receiving notice of termination
of this Agreement, appoint as successor custodian a bank or trust company having
such qualifications. Custodian shall, upon termination of this Agreement,
deliver to the successor custodian so specified or appointed, 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 shall cooperate in effecting changes in
book-entries at the Depository Trust Company, the Treasury/Federal Reserve
Book-Entry System, the Participants Trust Company and any other securities
depository holding assets of the Fund. In the event no such vote has been
adopted by the shareholders of Fund and no written order designating a successor
custodian shall have been delivered to Custodian on or before the date when such
termination shall become effective, then Custodian shall 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, if any, set forth in the
Bylaws of Fund and having not less than Two Million Dollars ($2,000,000)
aggregate capital, surplus and undivided profits, as shown by its last published
report. Upon either such delivery to a successor custodian, Custodian shall have
no further obligations or liabilities under this Agreement. Thereafter such bank
or trust company shall be the successor custodian under this Agreement and shall
be entitled to reasonable compensation for its services. In the event that no
such successor custodian can be found, Fund will submit to its shareholders,
before permitting delivery of the cash and securities owned by Fund to anyone
other than a successor custodian, the question of whether Fund shall be
liquidated or shall function without a custodian. Notwithstanding the foregoing
requirement as to delivery upon termination of this Agreement, Custodian may
make any other delivery of the securities, funds and property of Fund which
shall be permitted by the 1940 Act and Fund's Agreement and Declaration of Trust
and Bylaws then in effect. Except as otherwise provided herein, neither this
Agreement nor any portion
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thereof may be assigned by Custodian without the consent of Fund, authorized or
approved by a resolution of its Board of Trustees.
8. NOTICES.
Notices, requests, instructions and other writings received by Fund at 000
Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 or at such other address as Fund
may have designated by certified resolution of the Board of Trustees to
Custodian and notices, requests, instructions and other writings received by
Custodian at its offices at 00 Xxxx 00xx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000, or
to such other address as it may have designated to Fund in writing, shall be
deemed to have been properly given hereunder.
9. MISCELLANEOUS.
A. This Agreement is executed and delivered in the State of
Missouri and shall be governed by the laws of the State of Missouri
(except as to Section 9.H. hereof which shall be governed in accordance
with the laws of The Commonwealth of Massachusetts).
B. All the terms and provisions of this Agreement shall be binding
upon, inure to the benefit of, and be enforceable by the respective
successors and assigns of the parties hereto.
C. No provisions of the Agreement may be amended or modified in
any manner except by a written agreement properly authorized and
executed by both parties hereto.
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 become effective at the close of business
on the date hereof.
F. This Agreement may be executed simultaneously 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.
G. If any part, term or provision of this Agreement is by the
courts held to be illegal, in conflict with any law or otherwise
invalid, the remaining portion or portions shall be considered
severable and not be affected, and the rights and obligations of the
parties shall be construed and
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enforced as if the Agreement did not contain the particular part, term
or provision held to be illegal or invalid.
H. All parties hereto are expressly put on notice of Fund's
Agreement and Declaration of Trust, which is on file with the Secretary
of The Commonwealth of Massachusetts, and the limitation of shareholder
and trustee liability contained therein. This Agreement has been
executed by and on behalf of Fund by its representatives as such
representatives and not individually, and the obligations of Fund
hereunder are not binding upon any of the Trustees, officers or
shareholders of Fund individually but are binding upon only the assets
and property of Fund. With respect to any claim by Custodian for
recovery of that portion of the compensation (or any other liability of
Fund arising hereunder) allocated to a particular Portfolio, whether in
accordance with the express terms hereof or otherwise, Custodian shall
have recourse solely against the assets of that Portfolio to satisfy
such claim and shall have no recourse against the assets of any other
Portfolio for such purpose.
I. This Agreement, together with the Fee Schedule, is the entire
contract between the parties relating to the subject matter hereof and
supersedes all prior agreements.
17
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective authorized officers.
XXXXXX HIGH INCOME TRUST
By:______________________________
Title:___________________________
Attest:______________________
Title:_______________________
INVESTORS FIDUCIARY TRUST COMPANY
By:______________________________
Title:___________________________
Attest:______________________
Title:_______________________
