Exhibit g(iii)
CUSTODIAN AGREEMENT
AGREEMENT dated as of July 31, 2006 between THE NORTHERN TRUST COMPANY
(the "Custodian") and USAA MUTUAL FUNDS TRUST (the "Customer"), on behalf of the
USAA S&P 500 INDEX FUND (the "Series").
WHEREAS, the Customer may be organized with one or more series of
shares, each of which shall represent an interest in a separate portfolio of
Securities and Cash (each as hereinafter defined) (all such existing and
additional series now or hereafter listed on Exhibit A being hereinafter
referred to individually as a "Portfolio" and collectively, as the
"Portfolios"); and
WHEREAS, the Customer desires to appoint the Custodian as custodian on
behalf of the Portfolios under the terms and conditions set forth in this
Agreement, and the Custodian has agreed to so act as custodian.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto agree as follows:
1. EMPLOYMENT OF CUSTODIAN. The Customer hereby employs the Custodian as
custodian of all assets of each Portfolio which are delivered to and accepted by
the Custodian or any Subcustodian (as that term is defined in Section 4)
pursuant to the terms and conditions set forth herein. Without limitation, such
assets shall include stocks and other equity interests of every type, evidences
of indebtedness, other instruments representing same or rights or obligations to
receive, purchase, deliver or sell same and other non-cash investment property
of a Portfolio which is acceptable for deposit ("Securities") and cash from any
source and in any currency ("Cash") (Securities and Cash, collectively,
"Property"). The Custodian shall not be responsible for any property of a
Portfolio held or received by the Customer or others and not delivered to the
Custodian or any Subcustodian.
2. MAINTENANCE OF SECURITIES AND CASH AT CUSTODIAN AND SUBCUSTODIAN
LOCATIONS. Pursuant to Instructions, the Customer shall direct the Custodian to
(a) settle securities transactions and maintain cash in the country or other
jurisdiction in which the principal trading market for such securities is
located, where such securities are to be presented for payment or where such
securities are acquired and (b) maintain cash and cash equivalents in such
countries in amounts reasonably necessary to effect the Customer's transactions
in such securities. Instructions to settle securities
transactions in any country shall be deemed to authorize the holding of such
Securities and Cash in that country.
3. CUSTODY ACCOUNT. The Custodian agrees to establish and maintain one
or more custody accounts on its books, each in the name of a Portfolio (each, an
"Account") for any and all Property from time to time received and accepted by
the Custodian or any Subcustodian for the account of such Portfolio. Upon
delivery by the Customer to the Custodian of any Property belonging to a
Portfolio, the Customer shall, by Instructions (as hereinafter defined in
Section 14), specifically indicate to which Portfolio such Property belongs, or
if such Property belongs to more than one Portfolio, shall allocate such
Property to the appropriate Portfolios. The Custodian shall allocate such
Property to each Account in accordance with the Instructions; PROVIDED THAT the
Custodian shall have the right, in its sole discretion, to refuse to accept any
Property that is not in proper form for deposit for any reason. The Customer, on
behalf of each Portfolio, acknowledges its responsibility as a principal for all
of its obligations to the Custodian arising under or in connection with this
Agreement, warrants its authority to deposit in the appropriate Account any
Property received therefor by the Custodian or a Subcustodian and to give, and
authorize others to give, instructions relative thereto. The Custodian may
deliver securities of the same class in place of those deposited in an Account.
The Custodian shall hold, keep safe and protect as custodian for each
Account, on behalf of the Customer, all Property in such Account. All
transactions, including, but not limited to, foreign exchange transactions
involving the Property, shall be executed or settled solely in accordance with
Instructions (which shall specifically reference the Account for which such
transaction is being settled), except that until the Custodian receives
Instructions to the contrary, the Custodian will:
(a) collect all interest and dividends and all other income and
payments, whether paid in cash or in kind, on the Property, as the same become
payable and credit the same to the appropriate Account;
(b) present for payment all Securities held in an Account which are
called, redeemed or retired or otherwise become payable and all coupons and
other income items which call for payment upon presentation to the extent that
the Custodian or Subcustodian is actually aware of such opportunities and hold
the cash received in such Account pursuant to this Agreement;
(c) (i) exchange Securities where the exchange is purely ministerial
(including, without limitation, the exchange of
temporary securities for those in definitive form and the exchange of warrants,
or other documents of entitlement to securities, for the Securities themselves)
and (ii) when notification of a tender or exchange offer (other than ministerial
exchanges described in (i) above) is received for an Account, endeavor to
receive Instructions, provided that if such Instructions are not received in
time for the Custodian to take timely action, no action shall be taken with
respect thereto;
(d) whenever notification of a rights entitlement or a fractional
interest resulting from a rights issue, stock dividend or stock split is
received for an Account and such rights entitlement or fractional interest bears
an expiration date, if after endeavoring to obtain Instructions such
Instructions are not received in time for the Custodian to take timely action or
if actual notice of such actions was received too late to seek Instructions,
sell in the discretion of the Custodian (which sale the Customer hereby
authorizes the Custodian to make) such rights entitlement or fractional interest
and credit the appropriate Account with the net proceeds of such sale;
(e) execute in the Customer's name for an Account, whenever the
Custodian deems it appropriate, such ownership and other certificates as may be
required to obtain the payment of income from the Property in such Account;
(f) pay for each Account, any and all taxes and levies in the nature of
taxes imposed on interest, dividends or other similar income on the Property in
such Account by any governmental authority. In the event there is insufficient
Cash available in an Account to pay such taxes and levies, the Custodian shall
notify the Customer of the amount of the shortfall and the Customer, at its
option, may deposit additional Cash in such Account or take steps to have
sufficient Cash available. The Customer agrees, when and if requested by the
Custodian and required in connection with the payment of any such taxes to
cooperate with the Custodian in furnishing information, executing documents or
otherwise; and
(g) appoint brokers and agents for any of the ministerial transactions
involving the Securities described in (a) - (f), including, without limitation,
affiliates of the Custodian or any Subcustodian.
4. SUBCUSTODIANS AND SECURITIES SYSTEMS. The Customer authorizes and
instructs the Custodian to hold the Property in each Account in custody accounts
which have been established by the Custodian with (a) one of its U.S. branches
or another U.S. bank or trust company or branch thereof located in the U.S.
which is itself qualified under the Investment Company Act of 1940, as amended
("1940 Act"), to act as custodian (individually, a "U.S.
Subcustodian"), or a U.S. securities depository or clearing agency or system in
which the Custodian or a U.S. Subcustodian participates (individually, a "U.S.
Securities System") or (b) one of its non-U.S. branches or majority-owned
non-U.S. subsidiaries, a non-U.S. branch or majority-owned subsidiary of a U.S.
bank or a non-U.S. bank or trust company, acting as custodian (individually, a
"non-U.S. Subcustodian"; U.S. Subcustodians and non-U.S. Subcustodians,
collectively, "Subcustodians"), or a non-U.S. depository or clearing agency or
system in which the Custodian or any Subcustodian participates (individually, a
"non-U.S. Securities System"; "U.S. Securities System" and "non-U.S. Securities
System", collectively, "Securities System"), PROVIDED that in each case in which
a U.S. Subcustodian or U.S. Securities System is employed, each such
Subcustodian or Securities System shall have been approved by Instructions;
PROVIDED FURTHER that in each case in which a non-U.S. Subcustodian or non-U.S.
Securities System is employed, (a) such Subcustodian or Securities System either
is (i) a "qualified U.S. bank" as defined by Rule 17f-5 under the 1940 Act
("Rule 17f-5") or (ii) an "eligible foreign custodian" within the meaning of
Rule 17f-5 or such Subcustodian or Securities System is the subject of an order
granted by the U.S. Securities and Exchange Commission ("SEC") exempting such
agent or the subcustody arrangements thereto from all or part of the provisions
of Rule 17f-5 and (b) the agreement between the Custodian and such non-U.S.
Subcustodian has been approved by Instructions; it being understood that the
Custodian shall have no liability or responsibility for determining whether the
approval of any Subcustodian or Securities System has been proper under the 1940
Act or any rule or regulation thereunder.
Upon receipt of Instructions, the Custodian agrees to cease the
employment of any Subcustodian or Securities System with respect to the
Customer, and if desirable and practicable, appoint a replacement subcustodian
or securities system in accordance with the provisions of this Section. In
addition, the Custodian may, at any time in its discretion, upon written
notification to the Customer, terminate the employment of any Subcustodian or
Securities System.
Upon request of the Customer, the Custodian shall deliver to the
Customer annually a certificate stating: (a) the identity of each non-U.S.
Subcustodian and non-U.S. Securities System then acting on behalf of the
Custodian and the name and address of the governmental agency or other
regulatory authority that supervises or regulates such non-U.S Subcustodian and
non-U.S. Securities System; (b) the countries in which each non-U.S.
Subcustodian or non-U.S. Securities System is located; and (c) so long as Rule
17f-5 requires the Customer's Board of Trustees to directly approve its foreign
custody arrangements, such other information relating to such non-U.S.
Subcustodians and non-U.S. Securities Systems as may
reasonably be requested by the Customer to ensure compliance with Rule 17f-5. So
long as Rule 17f-5 requires the Customer's Board of Trustees to directly approve
its foreign custody arrangements, the Custodian also shall furnish annually to
the Customer information concerning such non-U.S. Subcustodians and non-U.S.
Securities Systems similar in kind and scope as that furnished to the Customer
in connection with the initial approval of this Agreement. The Custodian agrees
to promptly notify the Customer if, in the normal course of its custodial
activities, the Custodian has reason to believe that any non-U.S. Subcustodian
or non-U.S. Securities System has ceased to be a qualified U.S. bank or an
eligible foreign custodian each within the meaning of Rule 17f-5 or has ceased
to be subject to an exemptive order from the SEC.
5. USE OF SUBCUSTODIAN. With respect to Property in an Account which is
maintained by the Custodian in the custody of a Subcustodian employed pursuant
to Section 4:
(a) The Custodian will identify on its books as belonging to the
Customer on behalf of a Portfolio, any Property held by such Subcustodian.
(b) Any Property in an Account held by a Subcustodian will be subject
only to the instructions of the Custodian or its agents unless otherwise agreed
between Customer and Custodian.
(c) Property deposited with a Subcustodian will be maintained in an
account holding only assets for customers of the Custodian.
(d) Any agreement the Custodian shall enter into with a non-U.S.
Subcustodian with respect to the holding of Property shall require that (i) the
Account will be adequately indemnified or its losses adequately insured; (ii)
the Securities are not subject to any right, charge, security interest, lien or
claim of any kind in favor of such Subcustodian or its creditors except a claim
for payment in accordance with such agreement for their safe custody or
administration and expenses related thereto, (iii) beneficial ownership of such
Securities be freely transferable without the payment of money or value other
than for safe custody or administration and expenses related thereto, (iv)
adequate records will be maintained identifying the Property held pursuant to
such Agreement as belonging to the Custodian, on behalf of its customers and (v)
to the extent permitted by applicable law, officers of or auditors employed by,
or other representatives of or designated by, the Custodian, including the
independent public accountants of or designated by, the Customer be given access
to the books and records of such Subcustodian relating to its actions under its
agreement pertaining to any Property held by it thereunder or confirmation of or
pertinent information contained in such books
and records be furnished to such persons designated by the Custodian.
6. USE OF SECURITIES SYSTEM. With respect to Property in the Account(s)
which are maintained by the Custodian or any Subcustodian in the custody of a
Securities System employed pursuant to Section 4:
(a) The Custodian shall, and the Subcustodian will be required by its
agreement with the Custodian to, identify on its books such Property as being
held for the account of the Custodian or Subcustodian for its customers.
(b) Any Property held in a Securities System for the account of the
Custodian or a Subcustodian will be subject only to the instructions of the
Custodian or such Subcustodian, as the case may be.
(c) Property deposited with a Securities System will be maintained in
an account holding only assets for customers of the Custodian or Subcustodian,
as the case may be, unless precluded by applicable law, rule, or regulation.
(d) The Custodian shall provide the Customer with any report obtained
by the Custodian on the Securities System's accounting system, internal
accounting control and procedures for safeguarding securities deposited in the
Securities System.
7. AGENTS. The Custodian may at any time or times in its sole
discretion appoint (or remove) any other U.S. bank or trust company which is
itself qualified under the 1940 Act to act as custodian, as its agent to carry
out such of the provisions of this Agreement as the Custodian may from time to
time direct; PROVIDED, however, that the appointment of any agent shall not
relieve the Custodian of its responsibilities or liabilities hereunder.
8. RECORDS, OWNERSHIP OF PROPERTY, STATEMENTS, OPINIONS OF INDEPENDENT
CERTIFIED PUBLIC ACCOUNTANTS.
(a) The ownership of the Property whether Securities, Cash and/or other
property, and whether held by the Custodian or a Subcustodian or in a Securities
System as authorized herein, shall be clearly recorded on the Custodian's books
as belonging to the appropriate Account and not for the Custodian's own
interest. The Custodian shall keep accurate and detailed accounts of all
investments, receipts, disbursements and other transactions for each Account.
All accounts, books and records of the Custodian relating thereto shall be open
to inspection and audit at all reasonable times during normal business hours by
any person designated by the Customer. All such accounts shall be maintained
and preserved in the form reasonably requested by the Customer. The Custodian
will supply to the Customer from time to time, as mutually agreed upon, a
statement in respect to any Property in an Account held by the Custodian or by a
Subcustodian. In the absence of the filing in writing with the Custodian by the
Customer of exceptions or objections to any such statement within sixty (60)
days of the mailing thereof, the Customer shall be deemed to have approved such
statement and in such case or upon written approval of the Customer of any such
statement, such statement shall be presumed to be for all purposes correct with
respect to all information set forth therein.
(b) The Custodian shall take all reasonable action as the Customer may
request to obtain from year to year favorable opinions from the Customer's
independent certified public accountants with respect to the Custodian's
activities hereunder in connection with the preparation of the Customer's Form
N-1A and the Customer's Form N-SAR or other periodic reports to the SEC and with
respect to any other requirements of the SEC.
(c) At the request of the Customer, the Custodian shall deliver to the
Customer 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 and
Securities, including Cash and Securities 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 the Customer and
as may reasonably be obtained by the Custodian.
(d) The Customer may elect to participate in any of the electronic
on-line service and communications systems offered by the Custodian which can
provide the Customer, on a daily basis, with the ability to view on-line or to
print on hard copy various reports of Account activity and of Securities and/or
Cash being held in any Account. To the extent that such service shall include
market values of Securities in an Account, the Customer hereby acknowledges that
the Custodian now obtains and may in the future obtain information on such
values from outside sources that the Custodian considers to be reliable and the
Customer agrees that the Custodian (i) does not verify nor represent or warrant
either the reliability of such service nor the accuracy or completeness of any
such information furnished or obtained by or through such service and (ii) shall
be without liability in selecting and utilizing such service or furnishing any
information derived therefrom.
9. HOLDING OF SECURITIES, NOMINEES, ETC. Securities in an Account which
are held by the Custodian or any Subcustodian may be
held by such entity in the name of the Customer, on behalf of the appropriate
Portfolio, in the Custodian's or Subcustodian's name, in the name of the
Custodian's, Subcustodian's or Securities System's nominee, or in bearer form.
Securities that are held by a Subcustodian or which are eligible for deposit in
a Securities System as provided above may be maintained with the Subcustodian or
the Securities System in an account for the Custodian's or Subcustodian's
customers, unless prohibited by law, rule, or regulation. The Custodian or
Subcustodian, as the case may be, may combine certificates representing
Securities held in an Account with certificates of the same issue held by it as
fiduciary or as a custodian. In the event that any Securities in the name of the
Custodian or its nominee or held by a Subcustodian and registered in the name of
such Subcustodian or its nominee are called for partial redemption by the issuer
of such Security, the Custodian may, subject to the rules or regulations
pertaining to allocation of any Securities System in which such Securities have
been deposited, allot, or cause to be allotted, the called portion of the
respective beneficial holders of such class of security in any manner the
Custodian deems to be fair and equitable.
10. PROXIES, ETC. With respect to any proxies, notices, reports or
other communications relative to any of the Securities in any Account, the
Custodian shall perform such services and only such services relative thereto as
are (i) set forth in Section 3 of this Agreement, (ii) described in Exhibit B
attached hereto (as such service therein described may be in effect from time to
time) (the "Proxy Service") and (iii) as may otherwise be agreed upon between
the Custodian and the Customer. The liability and responsibility of the
Custodian in connection with the Proxy Service referred to in (ii) of the
immediately preceding sentence and in connection with any additional services
which the Custodian and the Customer may agree upon as provided in (iii) of the
immediately preceding sentence shall be as set forth in the description of the
Proxy Service and as may be agreed upon by the Custodian and the Customer in
connection with the furnishing of any such additional service and shall not be
affected by any other term of this Agreement. Neither the Custodian nor its
nominees or agents shall vote upon or in respect of any of the Securities in an
Account, execute any form of proxy to vote thereon, or give any consent or take
any action (except as provided in Section 3) with respect thereto except upon
the receipt of Instructions relative thereto.
11. SEGREGATED ACCOUNT. To assist the Customer in complying with the
requirements of the 1940 Act and the rules and regulations thereunder, the
Custodian shall, upon receipt of Instructions, establish and maintain a
segregated account or accounts on its books for and on behalf of a Portfolio.
12. SETTLEMENT PROCEDURES.
(a) The proceeds from the sale or exchange of Securities will be
credited and the cost of such Securities purchased or acquired will be debited
to the Account in accordance with the schedule specified in the Custodian's
operating guidelines in effect from time to time. Upon the execution and
delivery of this Agreement, the Customer acknowledges receipt of the Custodian's
operating guidelines in effect on the date hereof. Notwithstanding the preceding
sentence, settlement and payment for Securities received for an Account and
delivery of Securities maintained for an Account may be effected in accordance
with the customary or established securities trading or securities processing
practices and procedures in the jurisdiction or market in which the transaction
occurs, including, without limitation, delivering Securities to the purchaser
thereof or to a dealer therefor (or an agent for such purchaser or dealer)
against a receipt with the expectation of receiving later payment for such
Securities from such purchaser or dealer. The Custodian shall not be liable for
any loss which results from effecting transactions in accordance with the
customary or established securities trading or securities processing practices
and procedures in the applicable jurisdiction or market.
(b) The Custodian shall not be required to comply with any Instructions
to settle the purchase of any securities for an Account, unless there are
sufficient immediately available funds in the Account, PROVIDED THAT, if, after
all expenses, debits and withdrawals ("Debits") applicable to the Account have
been made and if after all Conditional Credits, as defined below, applicable to
the Account have been made final entries as set forth in (d) below, the amount
of immediately available funds in such Account is at least equal to the
aggregate purchase price of all securities for which the Custodian has received
Instructions to settle on that date ("Settlement Date"), the Custodian, upon
settlement, shall credit the Securities to an Account by making a final entry on
its books and records.
(c) Notwithstanding the foregoing, if, after all Debits applicable to
the Account have been made, there remains outstanding any Conditional Credit
applicable to the Account or the amount of immediately available funds in such
Account is less than the aggregate purchase price of all securities for which
the Custodian has received Instructions to settle on the Settlement Date, the
Custodian, upon settlement, may credit the securities to the applicable Account
by making a conditional entry on its books and records ("Conditional Credit"),
pending receipt of sufficient immediately available funds in the Account.
(d) If, within a reasonable time from the posting of a Conditional
Credit and after all Debits applicable to the Account have been made,
immediately available funds at least equal to the aggregate purchase price of
all securities subject to a Conditional Credit on a Settlement Date are
deposited into the Account, the Custodian shall make the Conditional Credit a
final entry on its books and records. In such case, the Customer shall be liable
to the Custodian only for late charges at a rate mutually agreed upon in writing
by the Custodian and the Customer.
(e) If, within a reasonable time from the posting of a Conditional
Credit and after all Debits applicable to the Account have been made,
immediately available funds at least equal to the aggregate purchase price of
all securities subject to a Conditional Credit on a Settlement Date are not
deposited into the Account, the Customer, authorizes the Custodian, as agent, to
sell the securities and credit the applicable Account with the proceeds of such
sale. In such case, the Customer shall be liable to the Custodian for any
deficiencies, out-of-pocket costs and expenses associated with the sale of the
securities, including but not limited to, shortfalls in the sales proceeds.
(f) The Customer agrees that it will not use the Account to facilitate
the purchase of securities without sufficient funds in the Account (which funds
shall not include the proceeds of the sale of the purchased securities).
13. PERMITTED TRANSACTIONS. The Customer agrees that it will cause
transactions to be made pursuant to this Agreement only upon Instructions in
accordance Section 14 and only for the purposes listed below.
(a) In connection with the purchase or sale of Securities at prices as
confirmed by Instructions.
(b) When Securities are called, redeemed or retired, or otherwise
become payable.
(c) In exchange for or upon conversion into other securities alone or
other securities and cash pursuant to any plan or merger, consolidation,
reorganization, recapitalization or readjustment.
(d) Upon conversion of Securities pursuant to their terms into other
securities.
(e) Upon exercise of subscription, purchase or other similar rights
represented by Securities.
(f) For the payment of interest, taxes, management or supervisory fees,
distributions or operating expenses.
(g) In connection with any borrowings by the Customer requiring a
pledge of Securities, but only against receipt of amounts borrowed.
(h) In connection with any loans, but only against receipt of
collateral as specified in Instructions which shall reflect any restrictions
applicable to the Customer.
(i) For the purpose of redeeming shares of the capital stock of the
Customer against delivery of the shares to be redeemed to the Custodian, a
Subcustodian or the Customer's transfer agent.
(j) For the purpose of redeeming in kind shares of the Customer against
delivery of the shares to be redeemed to the Custodian, a Subcustodian or the
Customer's transfer agent.
(k) For delivery in accordance with the provisions of any agreement
among the Customer, on behalf of a Portfolio, the Custodian and a broker-dealer
registered under the Securities Exchange Act of 1934 and a member of the
National Association of Securities Dealers, Inc., relating to compliance with
the rules of The Options Clearing Corporation, the Commodities Futures Trading
Commission and of any registered national securities exchange, or of any similar
organization or organizations, regarding escrow or other arrangements in
connection with transactions by the Customer.
(l) For release of Securities to designated brokers under covered call
options, PROVIDED, HOWEVER, that such Securities shall be released only upon
payment to the Custodian of monies for the premium due and a receipt for the
Securities which are to be held in escrow. Upon exercise of the option, or at
expiration, the Custodian will receive the Securities previously deposited from
the broker. The Custodian will act strictly in accordance with Instructions in
the delivery of Securities to be held in escrow and will have no responsibility
or liability for any such Securities which are not returned promptly when due
other than to make proper request for such return.
(m) For spot or forward foreign exchange transactions to facilitate
security trading or receipt of income from Securities related transactions.
(n) Upon the termination of this Agreement as set forth in Section 20.
(o) For other proper purposes.
The Customer agrees that the Custodian shall have no obligation to
verify the purpose for which a transaction is being
effected and shall have no liability, subject to the provisions of Section 14,
for following an Instruction in connection with a transaction not provided for
above.
14. INSTRUCTIONS. The term "Instructions" means instructions from the
Customer in respect of any of the Custodian's duties hereunder which have been
received by the Custodian at its address set forth in Section 21 below (i) in
writing (including, without limitation, facsimile transmission) or by tested
telex signed or given by such one or more person or persons as the Customer
shall have from time to time authorized in writing to give the particular class
of Instructions in question and whose name and (if applicable) signature and
office address have been filed with the Custodian, or (ii) which have been
transmitted electronically through an electronic on-line service and
communications system offered by the Custodian or other electronic instruction
system acceptable to the Custodian, subject to such additional terms and
conditions the Custodian may reasonably require or (iii) a telephonic or oral
communication by one or more persons as the Customer shall have from time to
time authorized to give the particular class of Instructions in question and
whose name has been filed with the Custodian; or (iv) upon receipt of such other
form of instructions as the Customer may from time to time authorize in writing
and which the Custodian has agreed in writing to accept. Instructions in the
form of oral communications shall be confirmed by the Customer by tested telex
or 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. Instructions may relate to specific transactions or to types or
classes of transactions, and may be in the form of standing instructions.
The Custodian shall have the right to assume in the absence of notice
to the contrary from the Customer that any person whose name is on file with the
Custodian pursuant to this Section has been authorized by the Customer to give
the Instructions in question and that such authorization has not been revoked.
The Custodian may act upon and conclusively rely on, without any liability to
the Customer or any other person or entity for any losses resulting therefrom,
any Instructions reasonably believed by it to be furnished by the proper person
or persons as provided above.
15. STANDARD OF CARE. The Custodian shall be responsible for the
performance of only such duties as are set forth herein or contained in
Instructions given to the Custodian which are not the contrary to the provisions
of this Agreement. The Custodian will use reasonable care with respect to the
safekeeping of Property in each Account and, except as otherwise expressly
provided herein, in carrying out its obligations under this Agreement. So long
as and
to the extent that it has exercised reasonable care, the Custodian shall not be
responsible for the title, validity or genuineness of any Property or other
property or evidence of title thereto received by it or delivered by it pursuant
to this Agreement and shall be held harmless in acting upon, and may
conclusively rely on, without liability for any loss resulting therefrom, any
notice, request, consent, certificate or other instrument reasonably believed by
it to be genuine and to be signed or furnished by the proper party or parties,
including, without limitation, Instructions, and shall be indemnified by the
Customer for any losses, damages, costs and expenses (including, without
limitation, the fees and expenses of counsel) incurred by the Custodian and
arising out of action taken or omitted with reasonable care by the Custodian
hereunder or under any Instructions. The Custodian shall be liable to the
Customer for any act or omission to act of any Subcustodian to the same extent
as if the Custodian committed such act itself, PROVIDED THAT if Customer by
Instructions selects any U.S. Subcustodian or a non-U.S. Subcustodian which, at
the time of selection is no part of the Custodian's existing global custody
network, the Custodian shall be only liable for its own negligence. With respect
to a Securities System, the Custodian shall only be responsible or liable for
losses arising from employment of such Securities System caused by the
Custodian's own failure to exercise reasonable care. In the event of any loss to
the Customer by reason of the failure of the Custodian or a Subcustodian to
utilize reasonable care, the Custodian shall be liable to the Customer to the
extent of the Customer's actual damages at the time such loss was discovered
without reference to any special conditions or circumstances. In no event shall
the Custodian be liable for any consequential or special damages. The Custodian
shall be entitled to rely, and may act, on advice of counsel (who may be counsel
for the Customer) on all matters and shall be without liability for any action
reasonably taken or omitted pursuant to such advice.
In the event the Customer subscribes to an electronic on-line service
and communications system offered by the Custodian, the Customer shall be fully
responsible for the security of the Customer's connecting terminal, access
thereto and the proper and authorized use thereof and the initiation and
application of continuing effective safeguards with respect thereto and agree to
defend and indemnify the Custodian and hold the Custodian harmless from and
against any and all losses, damages, costs and expenses (including the fees and
expenses of counsel) incurred by the Custodian as a result of any improper or
unauthorized use of such terminal by the Customer or by any others.
All collections of funds or other property paid or distributed in
respect of Securities in an Account, including funds involved in third-party
foreign exchange transactions, shall be made at the risk of the Customer.
Subject to the exercise of reasonable care, the Custodian shall have no
liability for any loss occasioned by delay in the actual receipt of notice by
the Custodian or by a Subcustodian of any payment, redemption or other
transaction regarding Securities in each Account in respect of which the
Custodian has agreed to take action as provided in Section 3 hereof. The
Custodian shall not be liable for any loss resulting from, or caused by, or
resulting from acts of governmental authorities (whether de jure or de facto),
including, without limitation, nationalization, expropriation, and the
imposition of currency restrictions; devaluations of or fluctuations in the
value of currencies; changes in laws and regulations applicable to the banking
or securities industry; market conditions that prevent the orderly execution of
securities transactions or affect the value of Property; acts of war, terrorism,
insurrection or revolution; strikes or work stoppages; the inability of a local
clearing and settlement system to settle transactions for reasons beyond the
control of the Custodian; hurricane, cyclone, earthquake, volcanic eruption,
nuclear fusion, fission or radioactivity, or other acts of God.
The Custodian shall have no liability in respect of any loss, damage or
expense suffered by the Customer, insofar as such loss, damage or expense arises
from the performance of the Custodian's duties hereunder by reason of the
Custodian's reliance upon records that were maintained for the Customer by
entities other than the Custodian prior to the Custodian's employment under this
Agreement.
The provisions of this Section shall survive termination of this
Agreement.
16. INVESTMENT LIMITATIONS AND LEGAL OR CONTRACTUAL RESTRICTIONS OR
REGULATIONS. The Custodian shall not be liable to the Customer and the Customer
agrees to indemnify the Custodian and its nominees, for any loss, damage or
expense suffered or incurred by the Custodian or its nominees arising out of any
violation of any investment restriction or other restriction or limitation
applicable to the Customer or any Portfolio pursuant to any contract or any law
or regulation. The provisions of this Section shall survive termination of this
Agreement.
17. FEES AND EXPENSES. The Customer agrees to pay to the Custodian such
compensation for its services pursuant to this Agreement as may be mutually
agreed upon in writing from time to time and the Custodian's reasonable
out-of-pocket or incidental expenses in connection with the performance of this
Agreement, including (but without limitation) legal fees as described herein
and/or deemed necessary in the judgment of the Custodian to keep safe or protect
the Property in an Account. The Customer hereby agrees to hold the Custodian
harmless from any liability or loss
resulting from any taxes or other governmental charges, and any expense related
thereto, which may be imposed, or assessed with respect to any Property in an
Account and also agrees to hold the Custodian, its Subcustodians, and their
respective nominees harmless from any liability as a record holder of Property
in such Account. The Custodian is authorized to charge the applicable Account
for such items and the Custodian shall have a lien on the Property in the
applicable Account for any amount payable to the Custodian under this Agreement,
including, but not limited to, amounts payable pursuant to paragraph (e) of
Section 12 and pursuant to indemnities granted by the Customer under this
Agreement. The provisions of this Section shall survive the termination of this
Agreement.
18. TAX RECLAIMS. With respect to withholding taxes deducted and which
may be deducted from any income received from any Property in an Account, the
Custodian shall perform such services with respect thereto as are described in
Exhibit C, attached hereto, and shall in connection therewith be subject to the
standard of care set forth in such Exhibit C. Such standard of care shall not be
affected by any other term of this Agreement.
19. AMENDMENT, MODIFICATIONS, ETC. No provision of this Agreement may
be amended, modified or waived except in a writing signed by the parties hereto.
No waiver of any provision hereto shall be deemed a continuing waiver unless it
is so designated. No failure or delay on the part of either party in exercising
any power or right under this Agreement operates as a waiver, nor does any
single or partial exercise of any power or right preclude any other or further
exercise thereof or the exercise of any other power or right.
20. TERMINATION.
(a) TERMINATION OF ENTIRE AGREEMENT. This Agreement may be terminated
by the Customer at any time by written notice or by the Custodian by the giving
of one hundred twenty (120) days written notice to the Customer; PROVIDED that
such written notice by the Customer shall specify the names of the persons to
whom the Custodian shall deliver the Securities in each Account and to whom the
Cash in each Account shall be paid. If notice of termination is given by the
Custodian, the Customer shall, within one hundred twenty (120) days following
the giving of such notice, deliver to the Custodian a written notice specifying
the names of the persons to whom the Custodian shall deliver the Securities in
each Account and to whom the Cash in each Account shall be paid. In either case,
the Custodian will deliver such Securities and Cash to the persons so specified,
after deducting therefrom any amounts which the Custodian determines to be owed
to it under Sections 12, 17, and 23. In addition, the Custodian may in its
discretion withhold
from such delivery such Cash and Securities as may be necessary to settle
transactions pending at the time of such delivery. The Customer grants to the
Custodian a lien and right of setoff against the Account and all Property held
therein from time to time in the full amount of the foregoing obligations. If
within one hundred twenty (120) days following the giving of a notice of
termination by the Custodian, the Custodian does not receive from the Customer a
written notice specifying the names of the persons to whom the Custodian shall
deliver the Securities in each Account and to whom the Cash in such Account
shall be paid, the Custodian, at its election, may deliver such Securities and
pay such Cash to a bank or trust company doing business in the State of New York
to be held and disposed of pursuant to the provisions of this Agreement, or may
continue to hold such Securities and Cash until a written notice as aforesaid is
delivered to the Custodian, provided that the Custodian's obligations shall be
limited to safekeeping.
(b) TERMINATION AS TO ONE OR MORE PORTFOLIOS. This Agreement may be
terminated by the Customer as to one or more Portfolio(s) (but less than all of
the Portfolios) at any time by delivery of an amended Exhibit A deleting such
Portfolio(s). This Agreement may be terminated by the Custodian as to one or
more Portfolio(s) (but less than all of the Portfolios) by delivery of an
amended Exhibit A deleting such Portfolio(s), in which case termination as to
such deleted Portfolio(s) shall take effect one hundred twenty (120) days after
the date of such delivery, or such earlier time as mutually agreed. The
execution and delivery of an amended Exhibit A which deletes one or more
Portfolio(s) shall constitute a termination of this Agreement only with respect
to such deleted Portfolio(s), shall be governed by the preceding provisions of
Section 20 as to the identification of a successor custodian and the delivery of
Cash and Securities of the Portfolio(s) so deleted to such successor custodian,
and shall not affect the obligations of the Custodian and the Customer hereunder
with respect to the other Portfolio(s) set forth in Exhibit A, as amended from
time to time.
21. NOTICES. Except as otherwise provided in this Agreement, all
requests, demands or other communications between the parties or notices in
connection herewith (a) shall be in writing, hand delivered or sent by telex,
telegram, cable, facsimile or other means of electronic communication agreed
upon by the parties hereto addressed:
if to the Customer, to:
Xxxxxxx Xxxxxxx
0000 Xxxxxxxxxxxxxx Xxxx, XX0X
Xxx Xxxxxxx, Xxxxx 00000
Phone: (000) 000-0000
Facsimile: (210)
if to the Custodian, to:
Xxxxx Xxxxxxx
The Northern Trust Company
00 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
or in either case to such other address as shall have been furnished to the
receiving party pursuant to the provisions hereof and (b) shall be deemed
effective when received, or, in the case of a telex, when sent to the proper
number and acknowledged by a proper answerback.
22. SEVERAL OBLIGATIONS OF THE PORTFOLIOS. With respect to any
obligations of the Customer on behalf of each Portfolio and each of its related
Accounts arising out of this Agreement, the Custodian shall look for payment or
satisfaction of any obligation solely to the assets and Property of the
Portfolio and such Accounts to which such obligation relates as though the
Customer had separately contracted with the Custodian by separate written
instrument with respect to each Portfolio and its related Accounts.
23. SECURITY FOR PAYMENT. To secure payment of all obligations due
hereunder, the Customer hereby grants to the Custodian a continuing security
interest in and right of setoff against each Account and all Property held
therein from time to time in the full amount of such obligations; PROVIDED THAT,
if there is more than one Account and the obligations secured pursuant to this
Section can be allocated to a specific Account or the Portfolio related to such
Account, such security interest and right of setoff will be limited to Property
held for that Account only and its related Portfolio. Should the Customer fail
to pay promptly any amounts owed hereunder, the Custodian shall be entitled to
use available Cash in the Account or applicable Accounts, as the case may be,
and to dispose of Securities in the Account or such applicable Account as is
necessary. In any such case and without limiting the foregoing, the Custodian
shall be entitled to take such other action(s) or exercise such other options,
powers and rights as the Custodian now or hereafter has as
a secured creditor under the New York Uniform Commercial Code or any other
applicable law.
24. REPRESENTATIONS AND WARRANTIES.
(a) The Customer hereby represents and warrants to the Custodian that:
(i) the employment of the Custodian and the allocation of
fees, expenses and other charges to any Account as herein provided, is
not prohibited by law or any governing documents or contracts to which
the Customer is subject;
(ii) the terms of this Agreement do not violate any obligation
by which the Customer is bound, whether arising by contract, operation
of law or otherwise;
(iii) this Agreement has been duly authorized by appropriate
action and when executed and delivered will be binding upon the
Customer and each Portfolio in accordance with its terms; and
(iv) the Customer will deliver to the Custodian such evidence
of such authorization as the Custodian may reasonably require, whether
by way of a certified resolution or otherwise.
(b) The Custodian hereby represents and warrants to the Customer that:
(i) the terms of this Agreement do not violate any obligation
by which the Custodian is bound, whether arising by contract, operation
of law or otherwise;
(ii) this Agreement has been duly authorized by appropriate
action and when executed and delivered will be binding upon the
Custodian in accordance with its terms;
(iii) the Custodian will deliver to the Customer such evidence
of such authorization as the Customer may reasonably require, whether
by way of a certified resolution or otherwise; and
(iv) the Custodian is qualified as a custodian under Section
26(a) of the 1940 Act and warrants that it will remain so qualified or
upon ceasing to be so qualified shall promptly notify the Customer in
writing.
25. GOVERNING LAW AND SUCCESSORS AND ASSIGNS. This Agreement shall be
governed by the law of the State of New York and shall not
be assignable by either party, but shall bind the successors in interest of the
Customer and the Custodian.
26. PUBLICITY. Customer shall furnish to Custodian at its office
referred to in Section 21 above, (a) at least ten (10) days prior to filing or
first use, as the case may be, drafts of its registration statement on Form N-1A
(including amendments) and prospectus supplements or amendments relating to the
Customer, or (b) at least two (2) business day prior to filing or first use, as
the case may be, as proposed advertising or sales literature relating to the
Custodian. The Customer will not make any other written or oral representation
about the Custodian without its prior written consent. The provisions of this
Section shall survive the termination of this Agreement.
27. SUBMISSION TO JURISDICTION. Any suit, action or proceeding arising
out of this Agreement may be instituted in any State or Federal court sitting in
the City of Xxx Xxxx, Xxxxx xx Xxx Xxxx, Xxxxxx Xxxxxx of America, and the
Customer irrevocably submits to the non-exclusive jurisdiction of any such court
in any such suit, action or proceeding and waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the laying
of venue of any such suit, action or proceeding brought in such a court and any
claim that such suit, action or proceeding was brought in an inconvenient forum.
28. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original. This Agreement shall
become effective when one or more counterparts have been signed and delivered by
each of the parties hereto.
29. CONFIDENTIALITY. The parties hereto agree that each shall treat
confidentially the terms and conditions of this Agreement and all information
provided by each party to the other regarding its business and operations. All
confidential information provided by a party hereto shall be used by any other
party hereto solely for the purpose of rendering services pursuant to this
Agreement and, except as may be required in carrying out this Agreement, shall
not be disclosed to any third party without the prior consent of such providing
party. The foregoing shall not be applicable to any information that is publicly
available when provided or thereafter becomes publicly available other than
through a breach of this Agreement, or that is required or requested to be
disclosed by any bank or other regulatory examiner of the Custodian, Customer,
or any Subcustodian, any auditor of the parties hereto, by judicial or
administrative process or otherwise by applicable law or regulation.
30. SEVERABILITY. If any provision of this Agreement is determined to
be invalid or unenforceable, such determination shall not affect the validity or
enforceability of any other provision of this Agreement.
31. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
of the parties with respect to the subject matter herein and supersedes all
prior agreements and understandings relating to such subject matter.
Notwithstanding the foregoing, nothing in this Agreement shall affect any other
agreement between the parties related to other subject matters.
32. HEADINGS. The headings of the paragraphs hereof are included for
convenience of reference only and do not form a part of this Agreement.
33. SECURITIES LENDING. The Customer may appoint a third party (a
"Lending Agent") to lend securities of each Account and direct such Lending
Agent to lend securities of each Account held by the Custodian by entering into
a written agreement with such Lending Agent. The Customer shall have the sole
responsibility to determine that the transactions initiated by the Lending Agent
comply with the terms of such agreement between the Lending Agent and the
Customer. When a Lending Agent has been appointed, the written agreement between
the Customer and the Lending Agent shall authorize and direct the Lending Agent
to enter into a loan agreement with a borrower or borrowers and the Custodian
shall have no responsibility or liability therefore.
When a Lending Agent is the lending fiduciary: (i) the Custodian shall,
as directed by the Lending Agent, and without duty of inquiry, transfer
securities of an Account to the Lending Agent for further delivery to a borrower
and (ii) the Custodian and the Customer will agree to specific securities
lending operating guidelines that provide further detail regarding the mutual
obligations and expectations relative to the foregoing. The Lending Agent shall
have custody of and custodial responsibility for all assets of an Account
forwarded by the Custodian to the Lending Agent pursuant to such direction.
The Custodian shall act as the third-party safekeeping financial
institution with respect to any collateral received by the Custodian for an
Account that has been transferred to the Custodian at the direction of the
Lending Agent. The Customer shall have the option to invest the collateral
received in exchange for the securities and the Custodian shall have no
responsibility or liability on any such investment activity. Notwithstanding
anything in this Agreement to the contrary, the right to vote securities out on
loan on record date passes to the borrower, or to a transferee of the borrower,
as a consequence of
the transfer of title to the securities. The Custodian shall maintain a record
of the market value of the loaned securities and the collateral received, but
have no obligation to monitor collateral levels.
Notwithstanding any other provision of this Agreement, the Custodian
shall have no responsibility for the acts or omissions of the Lending Agent, or
for losses to an Account or the Customer resulting from the acts or omissions of
the Lending Agent, except to the extent that such losses result from the
Custodian's failure to exercise reasonable care. The Customer agrees to
indemnify the Custodian from any liability, loss and expense, including legal
fees and expenses, which arise out of or in connection with the appointment of a
Lending Agent and/or the transactions entered into on the Customer's behalf by
the Lending Agent, the Custodian's acting in accordance with any directions of a
Lending Agent or any other actions of a Lending Agent, except to the extent that
such liability, loss and expense, including legal fees and expenses, result from
the Custodian's failure to exercise reasonable care. This paragraph shall
survive the termination of this Agreement.
USAA MUTUAL FUNDS TRUST
/s/ Xxxxx X. Xxxx
------------------------
By: Xxxxx Xxxx
Title: Treasurer
THE NORTHERN TRUST COMPANY
/s/ Xxxxx Xxxxxxx
------------------------
By: Xxxxx Xxxxxxx
Title: Vice President
EXHIBIT A
To Custodian Agreement dated as of July 31, 2006 between The Northern
Trust Company and USAA Mutual Funds Trust
LIST OF PORTFOLIOS
The following is a list of Portfolio(s) referred to in the first
WHEREAS clause of the above-referred to Custodian Agreement. Terms used herein
as defined terms, unless otherwise defined, shall have the meanings ascribed to
them in the above-referred to Custodian Agreement.
USAA S&P 500 Index Fund
Dated as of: July 31, 2006 USAA MUTUAL FUNDS TRUST
/s/ Xxxxx X. Xxxx
------------------------
By: Xxxxx Xxxx
Title: Treasurer
THE NORTHERN TRUST COMPANY
/s/ Xxxxx Xxxxxxx
------------------------
By: Xxxxx Xxxxxxx
Title: Vice President
EXHIBIT B
To Custodian Agreement dated as of July 31, 2006 between The Northern
Trust Company and USAA Mutual Funds Trust
PROXY SERVICE
The following is a description of the Proxy Service referred to in
Section 10 of the above referred to Custodian Agreement. Terms used herein as
defined terms shall have the meanings ascribed to them therein, unless otherwise
defined below.
The Custodian currently provides proxy voting services, including event
notification, voting for annual general meetings and extraordinary meetings, in
partnership with the following market specialists:
* Institutional Shareholder Services (ISS), for all global proxy
services ex-U.S.
* ADP, for U.S. proxy services
Proxy voting services are currently provided in the markets listed
below:
Argentina Malaysia
Australia Mexico
Austria Netherlands
Belgium New Zealand
Canada Norway
China Philippines
Czech Republic Poland
Denmark Portugal
Euroclear Singapore
Finland Slovak Republic
France South Africa
Germany South Korea
Greece Spain
Hong Kong Sri Lanka
Hungary Sweden
Indonesia Switzerland
Ireland Thailand
Italy United Kingdom
Japan United States
Kenya Venezuela
For those markets not covered by our standard proxy voting service, the
Fund Manager can contact Custodian directly with voting instructions on specific
events; Custodian will use reasonable efforts to vote these proxies for the
customer.
All proxy voting instructions must be received by Custodian before
specified deadline for execution. Execution costs attributable to settlement and
custody activities in specific markets, such as stamp duty, securities
re-registration fees, and will be passed through where applicable.
Custodian may at its sole discretion change its arrangement for
provision of proxy service from time to time, provided such change is
communicated promptly to the Customer in writing.
Dated as of: July 31, 2006 USAA MUTUAL FUNDS TRUST
/s/ Xxxxx X. Xxxx
------------------------
By: Xxxxx Xxxx
Title: Treasurer
THE NORTHERN TRUST COMPANY
/s/ Xxxxx Xxxxxxx
------------------------
By: Xxxxx Xxxxxxx
Title: Vice President
EXHIBIT C
To Custodian Agreement dated as of July 31, 2006 between The Northern
Trust Company and USAA Mutual Funds Trust
TAX RECLAIMS
Pursuant to Section 18 of the above referred to Custodian Agreement,
the Custodian shall perform the following services with respect to withholding
taxes imposed or which may be imposed on income from Property in any Account.
Terms used herein as defined terms shall, unless otherwise defined, have the
meanings ascribed to them in the above referred to Custodian Agreement.
When withholding tax has been deducted with respect to income from any
Property in an Account, the Custodian will actively pursue, on a reasonable
efforts basis, the reclaim process, PROVIDED THAT the Custodian shall not be
required to institute any legal or administrative proceeding against any
Subcustodian or other person. The Custodian will provide fully detailed
advices/vouchers to support reclaims submitted to the local authorities by the
Custodian or its designee. In all cases of withholding, the Custodian will
provide full details to the Customer. If exemption from withholding at the
source can be obtained in the future, the Custodian will notify the Customer and
advise what documentation, if any, is required to obtain the exemption. Upon
receipt of such documentation from the Customer, the Custodian will file for
exemption on the Customer's behalf and notify the Customer when it has been
obtained.
In connection with providing the foregoing service, the Custodian shall
be entitled to apply categorical treatment of the Customer according to the
Customer's nationality, the particulars of its organization and other relevant
details that shall be supplied by the Customer. It shall be the duty of the
Customer to inform the Custodian of any change in the organization, domicile or
other relevant fact concerning tax treatment of the Customer and further to
inform the Custodian if the Customer is or becomes the beneficiary of any
special ruling or treatment not applicable to the general nationality and
category or entity of which the Customer is a part under general laws and treaty
provisions. The Custodian may rely on any such information provided by the
Customer.
In connection with providing the foregoing service, the Custodian may
also rely on professional tax services published by a major international
accounting firm and/or advice received from a Subcustodian in the jurisdictions
in question. In addition, the Custodian may seek the advice of counsel or other
professional tax advisers in such jurisdictions. The Custodian is entitled to
rely, and may act, on information set forth in such services and on advice
received from a Subcustodian, counsel or other professional tax advisers and
shall be without liability to the Customer for any action reasonably taken or
omitted pursuant to information contained in such services or such advice.
Dated as of: July 31, 2006 USAA MUTUAL FUNDS TRUST
/s/ Xxxxx X. Xxxx
------------------------
By: Xxxxx Xxxx
Title: Treasurer
THE NORTHERN TRUST COMPANY
/s/ Xxxxx Xxxxxxx
------------------------
By: Xxxxx Xxxxxxx
Title: Vice President
