AGREEMENT BETWEEN
XXXXX BROTHERS XXXXXXXX & CO.
AND
IVY FUND
TABLE OF CONTENTS
1. Employment of Custodian 1
2. Powers and Duties of the Custodian
with respect to Property of the Fund
held by the Custodian 2
2.1 Safekeeping 2
2.2 Manner of Holding Securities 2
2.3 Registration 3
2.4 Purchases 3
2.5 Exchanges 5
2.6 Sales of Securities 5
2.7 Depositary Receipts 6
2.8 Exercise of Rights: Tender Offers 7
2.9 Stock Dividends, Rights, Etc. 7
2.10 Options 8
2.11 Borrowings 9
2.12 Demand Deposit Bank Accounts 9
2.13 Interest Bearing Call or Time Deposits 10
2.14 Futures Contracts 12
2.15 Foreign Exchange Transactions 13
2.16 Securities Loans 14
2.17 Collections 14
2.18 Dividends, Distributions and Redemptions 15
2.19 Proxies, Notices, Etc. 16
2.20 Nondiscretionary Details 17
2.21 Bills 17
2.22 Deposit of Fund Assets in Securities Systems 17
2.23 Other Transfers 19
2.24 Investment Limitations 20
2.25 Custodian Advances 20
2.26 Restricted Securities 22
2.27 Proper Instructions 23
2.28 Segregated Account 24
3. Powers and Duties of the Custodian with Respect to
the Appointment of Subcustodians 25
4. Assistance by the Custodian as to Certain Matters 30
5. Powers and Duties of the Custodian with Respect to
its Role as Recordkeeping Agent 30
5.1 Records 30
5.2 Accounts 30
5.3 Access to Records 30
5.4 Options of Fund's Independent Certified Accountants 31
5.5 Reports of Custodian's Independent Public
Accountants 31
6. Standard of Care and Related Matters 31
6.1 Liability of the Custodian with Respect
to Proper Instructions; Evidence of
Authority; Etc. 31
6.2 Liability of the Custodian with Respect
to Use of Securities Systems 33
6.3 Standard of Care; Liability; Indemnification 33
6.4 Reimbursements of Disbursements, Etc. 35
6.5 Security for Obligations to Custodian 35
6.6 Appointment of Agents 36
6.7 Powers of Attorney 36
7. Compensation of the Custodian 37
8. Termination; Successor Custodian 37
9. Entire Agreement; Waiver; Amendment 38
10. Governing Law 38
11. Notices 39
12. Binding Effect 39
13. Counterparts 39
14. Representative Capacity 39
CUSTODIAN AGREEMENT
AGREEMENT made this _____ day of _________, 1993, between IVY FUND (the
"Fund") and each of the Funds listed in Appendix B attached hereto as said
Exhibit may from time to time be revised (collectively, the "Funds"
individually, a "Fund") and Xxxxx Brothers Xxxxxxxx & Co. (the "Custodian");
WITNESSETH: That in consideration of the mutual covenants and
agreements herein contained, the parties hereto agree as follows:
1. Employment of Custodian: The Fund hereby employs and appoints the
Custodian as a custodian for the term and subject to the provisions of this
Agreement. The Custodian shall not be under any duty or obligation to require
the Fund to deliver to it any securities or funds owned by the Fund and shall
have no responsibility or liability for or on account of securities or funds not
so delivered. The Fund will deposit with the Custodian copies of the Declaration
of Trust or Certificate of Incorporation and By-Laws (or comparable documents)
of the Fund and all amendments thereto, and copies of such votes and other
proceedings of the Fund as may be necessary for or convenient to the Custodian
in the performance of its duties. It is understood that as used in this
Agreement, the term "securities" shall mean and "security" within the meaning of
section 2(a)(36) of the Investment Company Act of 1940, as amended, (the "1940
Act") from time to time held by the Custodian for the account of the Fund
pursuant to this Agreement and shall include futures contracts and options.
2. Powers and Duties of the Custodian with respect to Property of the
Fund held by the Custodian: Except for securities and funds held by any
Subcustodians or held by the Custodian through a non-U.S. securities depository
appointed pursuant to the provisions of Section 3 hereof, the Custodian shall
have and perform the following powers and duties:
2.1 Safekeeping - To keep safely the cash, securities and other assets
of the Fund that have been delivered to the Custodian and, on behalf of the
Fund, from time to time to receive delivery of securities for safekeeping.
2.2 Manner of Holding Securities - To hold securities of the Fund (1)
by physical possession of the share certificates or other instruments
representing such securities in registered or bearer form and of the broker's
receipts or confirmations for futures contracts, options and similar securities,
or (2) in book-entry form by a Securities System (as said term is defined in
Section 2.22) or a Foreign Depository. The Custodian shall identify securities
held by it hereunder as being held for the account of the Fund and shall require
each Subcustodian to identify securities held by such Subcustodian as being held
for the account of the Custodian for the Fund or for customers of the Custodian
or for the account of another Subcustodian for the Fund. The Custodian shall, or
shall require each Subcustodian to, require each Securities System or Foreign
Depository to identify the securities held by it as being held for the account
of the Custodian or for the account of such Subcustodian, respectively.
2.3 Registration - To hold registered securities or other assets of the
Fund with or without any indication of fiduciary capacity, provided that such
securities or other assets of the Fund are held in an account of the Custodian
containing only assets of the Fund or only assets held as fiduciary or custodian
for customers and provided further that the records of the Custodian should at
all times indicate the Fund or other customer for which such securities and
other assets are held in such account and their respective interests therein.
2.4 Purchases - Upon receipt of proper instructions, as defined in
Section 2.27 and insofar as funds are available for the purpose, to pay for and
receive securities purchased for the account of the Fund, payment being made
only upon receipt of the securities (1) by the Custodian, (2) by a clearing
corporation of a national securities exchange of which the Custodian is a
member, (3) by a Securities System, or (4) by a Foreign Depository or other
financial institution approved by the Fund. However, (i) in the case of
repurchase agreements entered into by the Fund, the Custodian (as well as an
Agent) may release funds to a Securities System, a Foreign Depository or a
Subcustodian prior to the receipt of advice from the Securities System, Foreign
Depository or Subcustodian that the securities underlying such repurchase
agreement have been transferred by book entry into the Account (as defined in
Section 2.22) of the Custodian (or such Agent) maintained with such Securities
System, Foreign Depository or Subcustodian, so long as such payment instructions
to the Securities System, Foreign Depository or Subcustodian include a
requirement that delivery is only against payment for
securities, (ii) in the case of foreign exchange contracts, options,
time deposits, call account deposits, currency deposits, and other deposits,
contracts or options pursuant to Sections 2.10, 2.12, 2.13, 2.14 and 2.15, the
Custodian may make payment therefor without receiving an instrument evidencing
said deposit, contract or option so long as such payment instructions detail
specific securities or other assets to be acquired, (iii) in the case of
securities as to which payment for the security and receipt of the instrument
evidencing the security are under generally accepted trade practice or the terms
of the instrument representing the security expected to take place in different
locations or through separate parties, such as commercial paper which is indexed
to foreign currency exchange rates, derivatives and similar securities, the
Custodian may make payment for such securities prior to receipt thereof in
accordance with such generally accepted trade practice or the terms of the
instrument representing such security and (iv) in the case of the purchase of
securities, the settlement of which occurs outside the United States, the
Custodian may make payment therefor and receive delivery of such securities in
accordance with local custom and practice generally accepted by Institutional
Clients (as hereinafter defined) in the country in which settlement occurs, but
in all events subject to the standard care set forth in Section 6.3. For
purposes of this Agreement, an "Institutional Client" means a major commercial
bank, insurance company or substantially similar financial institution which, as
a substantial part of its business operations, purchases or sells securities and
makes use of custodial services.
2.5 Exchanges - Upon receipt of proper instructions, to exchange
securities held by it for the account of the Fund for other securities in
connection with any reorganization, recapitalization, split-up of shares, change
of par value, conversion or other event relating to the securities or the issuer
of such securities and to deposit any such securities in accordance with the
terms of any reorganization or protective plan. Without proper instructions, the
Custodian may surrender securities in temporary form for definitive securities,
may surrender securities for transfer into an account as permitted in Section
2.3, and may surrender securities for a different number of certificates or
instruments representing the same number of shares or same principal amount of
indebtedness, provided the securities to be issued are to be delivered to the
Custodian.
2.6 Sales of Securities - Upon receipt of proper instructions, to make
delivery of securities which have been sold for the account of the Fund, but
only against payment therefor (1) in cash, by a certified check, bank cashier's
check, bank credit, or bank wire transfer, or (2) by credit to the account of
the Custodian with a clearing corporation of a national securities exchange of
which the Custodian is a member, or (3) by credit to the account of the
Custodian or an Agent of the Custodian with a Securities System, Foreign
Depository, or other financial institution approved by the Fund; provided,
however, that (i) in the case of delivery of physical certificates or
instruments representing securities, the Custodian may make delivery to the
broker buying the securities, against receipt therefor, for examination in
accordance with "street delivery" custom, provided that the payment therefor is
to be made to the Custodian (which payment may be made by a broker's check) or
that such securities are to be returned to the Custodian, (ii) in the case of
securities referred to in clause (iii) of the last sentence of Section 2.4, the
Custodian may make settlement, including with respect to the form of payment, in
accordance with generally accepted trade practice relating to such securities or
the terms of the instrument representing said security, and (iii) in the case of
securities, the settlement of which occurs outside the United States, such
securities shall be delivered and paid for in accordance with local custom and
practice generally accepted by Institutional Clients in the country in which the
settlement occurs, but in all events subject to the standard of care set forth
in Section 6.3.
2.7 Depositary Receipts - Upon receipt of proper instructions, to
instruct a Subcustodian or an Agent to surrender securities to the depositary
used by an issuer of American Depositary Receipts or International Depositary
Receipts (hereinafter collectively referred to as "ADRs") for such securities
against a written receipt therefor adequately describing such securities and
written evidence satisfactory to the Subcustodian or Agent that the depositary
has acknowledged receipt of instructions to issue ADRs with respect to such
securities in the name of the Custodian, or a nominee of the Custodian, for
delivery to the Custodian in Boston, Massachusetts, or at such other place as
the Custodian may from time to time designate.
Upon receipt of proper instructions, to surrender ADRs to the issuer
thereof against a written receipt therefor adequately describing the ADRs
surrendered and written evidence satisfactory to the Custodian that the issuer
of the ADRs has acknowledged receipt of the instructions to cause its depositary
to deliver the securities underlying such ADRs to a Subcustodian or an Agent.
2.8 Exercise of Rights; Tender Offers - Upon timely receipt of proper
instructions, to deliver to the issuer or trustee thereof, or to the agent of
either, warrants, puts, calls, rights or similar securities for the purpose of
being exercised or sold, provided that the new securities and cash, if any,
acquired by such action are to be delivered to the Custodian, and, upon receipt
of proper instructions, to deposit securities upon invitations for tenders of
securities, provided that the consideration is to be paid or delivered or the
tendered securities are to be returned to the Custodian. Notwithstanding any
provision of this Agreement to the contrary, the Custodian shall take all
necessary action, unless otherwise directed to the contrary by proper
instructions, to comply with the terms of all mandatory or compulsory exchanges,
calls, redemptions or similar rights of security ownership, and shall promptly
notify the Fund of any such action in writing by facsimile transmission or in
such other manner as the Fund and the Custodian may agree in writing.
2.9 Stock Dividends, Rights, Etc. - To receive and collect all
stock dividends, rights, and other items of like nature.
2.10 Options - Upon receipt of proper instructions or upon receipt of
instructions given pursuant to any agreement relating to an option or as
otherwise provided in any such agreement to (i) receive and retain, to the
extent provided to the Custodian, confirmations or other documents evidencing
the purchase, sale or writing of an option of any type on or in respect of a
security, securities index or similar form of property by the Fund; (ii) deposit
and maintain in a segregated account, either physically or by book-entry in a
Securities System or Foreign Depository or with a broker, dealer or other
entity, securities, cash or other assets in connection with options transactions
entered into by the Fund; (iii) transfer securities, cash or other assets to a
Securities System, Foreign Depository, broker, dealer or other entity, as margin
(including variation margin) or other security for the Fund's obligations in
respect of any option; and (iv) pay, release and/or transfer such securities,
cash or other assets only in accordance with a notice or other communication
evidencing the expiration, termination or exercise of or default under any such
option furnished by The Options Clearing Corporation, by the securities or
options exchange on which such option is traded or by such broker, dealer or
other entity as may be responsible for handling such options transaction or have
authority to give such notice or communication. The Custodian shall not be
responsible for the sufficiency of assets held in any segregated account
established in compliance with applicable margin maintenance requirements or the
performance of the other terms of any agreement relating to an option.
Notwithstanding the foregoing, options on futures contracts and options to
purchase and sell foreign currencies shall be governed by Section 2.14 and 2.15.
2.11 Borrowings - Upon receipt of proper instructions, to deliver
securities of the Fund to lenders or their agents or otherwise establish a
segregated account as agreed to by the Fund and the Custodian as collateral for
borrowings effected by the Fund, provided that such borrowed money is payable
to/or upon the Custodian's order as Custodian for the Fund.
2.12 Demand Deposit Bank Accounts - To open and operate an account or
accounts in the name of the Fund on the Custodian's books, subject only to draft
or order by the Custodian, and to hold in such account or accounts as a deposit
accepted on the Custodian's books cash, including foreign currency, received for
the account of the Fund other than cash held as deposits with Banking
Institutions in accordance with the following paragraph. The responsibilities of
the Custodian for cash, including foreign currency, of the Fund accepted on the
Custodian's books as a deposit shall be that of a U.S. bank for a similar
deposit.
If and when authorized by proper instructions, the Custodian may open
and operate an additional account(s) in such other banks or trust companies as
may be designated by the Fund in such instructions (any such bank or trust
company so designated by the Fund being referred to hereafter as a "Banking
Institution"), and may deposit cash, including foreign currency, of the Fund in
such account or accounts, provided that such account(s) (hereinafter
collectively referred to as "demand deposit bank accounts") shall be in the name
of the Custodian or a nominee of the Custodian for the account of the Fund or
for the account of the Custodian's customers generally and shall be subject only
to the Custodian's draft or order; provided that any such demand deposit bank
account shall contain only assets held by the Custodian as a fiduciary or
custodian for the Fund and/or other customers and that the records of the
Custodian shall indicate at all times the Fund and/or other customers for which
such funds are held in such account and the respective interests therein. Such
demand deposit accounts may be opened with Banking Institutions in the United
States and in other countries and may be denominated in either U.S. Dollars or
other currencies as the Fund may determine. The records for each such account
will be maintained by the Custodian but the deposits in any such account shall
not constitute a deposit liability of the Custodian. All such deposits,
including with Subcustodians, shall be deemed to be portfolio securities of the
Fund and accordingly the responsibility of the Custodian therefor shall be the
same as and no greater than the Custodian's responsibility in respect of other
portfolio securities of the Fund. The authorization by the Fund to appoint a
Subcustodian as such shall also constitute a proper instruction to open a demand
deposit bank account subject to the provisions of this paragraph with such
Subcustodian. Upon receipt of proper instructions, the Custodian shall take such
reasonable steps as the Fund deems necessary or appropriate to cause such
deposits to be insured to the maximum extent possible by the Federal Depository
Insurance Corporation and any other applicable deposit insurers.
2.13 Interest Bearing Call or Time Deposits - To place interest bearing
fixed term and call deposits with such banks and in such amounts as the Fund may
authorize pursuant to proper instructions. Such deposits may be placed with the
Custodian or with Subcustodians or other Banking Institutions as the Fund may
determine, in the name of the Custodian or a nominee of the Custodian for the
account of the Fund or the account of the Custodian's customers generally and
subject only to the Custodian's draft, order or instruction; provided that any
such deposit shall be held in an account containing only assets held by the
Custodian as a fiduciary or custodian for the Fund and/or other customers and
that the records of the Custodian shall indicate at all times the Fund and/or
other customers for which such funds are held in such account and the respective
interests therein. Deposits may be denominated in U.S. Dollars or other
currencies and need not be evidenced by the issuance or delivery of a
certificate to the Custodian, provided that the Custodian shall include in its
records with respect to the assets of the Fund appropriate notation as to the
amount and currency of each such deposit, the accepting Banking Institution and
other appropriate details, and shall retain such forms of advice or receipt
evidencing the deposit, if any, as may be forwarded to the Custodian by the
Banking Institution. Funds, other than those accepted on the Custodian's books
as a deposit, but including those placed with Subcustodians, shall be deemed
portfolio securities of the Fund and the responsibilities of the Custodian
therefor shall be the same as those for demand deposit bank accounts placed with
other banks, as described in the second paragraph of Section 2.12 of this
Agreement. The responsibility of the Custodian for funds accepted on the
Custodian's books as a deposit shall be that of a U.S. bank for a similar
deposit.
2.14 Futures Contracts. Upon receipt of proper instructions or upon
receipt of instructions given pursuant to any agreement relating to a futures
contract or an option thereon or as otherwise provided in any such agreement, to
(i) receive and retain, to the extent provided to the Custodian, confirmations
or other documents evidencing the purchase or sale of a futures contract or an
option on a futures contract by the Fund; (ii) deposit and maintain in a
segregated account, either physically or by book-entry in a Securities System or
Foreign Depository for the benefit of any futures commission merchant, or pay to
such futures commission merchant, securities, cash or other assets designated by
the Fund as initial, maintenance or variation "margin" deposits intended to
secure the Fund's performance of its obligations under any futures contract
purchased or sold or any option on a futures contract written, purchased or sold
by the Fund, in accordance with the provisions of any agreement relating thereto
or the rules of the Commodity Futures Trading Commission and/or any contract
market or any similar organization on which such contract or option is traded;
and (iii) pay, release and/or transfer securities, cash or other assets into or
out of such margin accounts only in accordance with any such agreement or rules.
The Custodian shall not be responsible for the sufficiency of assets held in any
segregated account established in compliance with applicable margin maintenance
requirements or the performance of the other terms of any agreement relating to
a futures contract or an option thereon.
2.15 Foreign Exchange Transactions - Pursuant to proper instructions,
to settle foreign exchange contracts or options to purchase and sell foreign
currencies for spot and future delivery on behalf and for the account of the
Fund with such currency brokers or Banking Institutions, including
Subcustodians, as the Fund may direct pursuant to proper instructions. The
Custodian shall be responsible for the transmission of cash and instructions to
and from the currency broker or Banking Institution with which the contract or
option is made, the safekeeping of all certificates and other documents and
agreements evidencing or relating to such foreign exchange transactions as the
Custodian may receive and the maintenance of proper records as set forth in
Section 5.1. In connection with such transactions, the Custodian is authorized
to make free outgoing payments of cash in the form of U.S. Dollars or foreign
currency without receiving confirmation of a foreign exchange contract or option
or confirmation that the countervalue currency completing the foreign exchange
contract has been delivered or received or that the option has been delivered or
received. The Fund accepts full responsibility for its use of third-party
foreign exchange dealers and for execution of said foreign exchange contracts
and options and understands that the Fund shall be responsible for any and all
costs and interest charges which may be incurred by the Fund or the Custodian as
a result of the failure or delay of third parties to deliver foreign exchange.
Alternatively, such transactions may be undertaken by the custodian as
principal, if instructed by the Fund.
Foreign exchange contracts and options, other than those executed with
the Custodian as principal, but including those executed with Subcustodians,
shall be deemed to be portfolio securities of the Fund and the responsibility of
the Custodian therefor shall be the same as and no greater than the Custodian's
responsibility in respect of other portfolio securities of the Fund. The
responsibility of the Custodian with respect to foreign exchange contracts and
options executed with the Custodian as principal shall be that of a U.S. bank
with respect to a similar contract or option.
2.16 Securities Loans - Upon receipt of proper instructions, to deliver
securities of the Fund, in connection with loans of securities by the Fund, to
the borrower thereof in accordance with the terms of a written securities
lending agreement to which the Fund is a party or which is otherwise approved by
the Fund.
2.17 Collections - To collect and receive all income, payments of
principal and other payments with respect to the securities held hereunder, and
in connection therewith to deliver the certificates or other instruments
representing the securities to the issuer thereof or its agent when securities
are called, redeemed, retired or otherwise become payable; provided, that the
payment is to be made in such form and manner and at such time, which may be
after delivery by the Custodian of the instrument representing the security, as
is in accordance with the terms of the instrument representing the security, or
such proper instructions as the Custodian may receive, or governmental
regulations, the rules of Securities Systems, Foreign Depositories or other U.S.
or foreign securities depositories and clearing agencies in which such security
is held or, with respect to securities referred to in clause (iii) of the last
sentence of Section 2.4, in accordance with local custom and practice generally
accepted by the Institutional Clients in the country in which payment occurs,
but in all events subject to the standard of care set forth in Article 6.3; (ii)
to execute ownership and other certificates and affidavits for all federal,
state and foreign tax purposes in connection with receipt of income, principal
or other payments with respect to securities of the Fund or in connection with
transfer of securities; and (iii) pursuant to proper instructions to take such
other actions with respect to collection or receipt of funds or transfer of
securities which involve an investment decision.
2.18 Dividends, Distributions and Redemptions - Upon receipt of proper
instructions from the Fund, or upon receipt of instructions from the Fund's
shareholder servicing agent or agent with comparable duties (the "Shareholder
Servicing Agent") (given by such person or persons and in such manner on behalf
of the Shareholder Servicing Agent as the Fund shall have authorized by proper
instructions), the Custodian shall release funds or securities to the
Shareholder Servicing Agent or otherwise apply funds or securities as the Fund
or such Shareholder Servicing Agent shall otherwise instruct, insofar as
available, for the payment of dividends or other distributions to the Fund
shareholders. Upon receipt of proper instructions from the Fund, or upon receipt
of instructions from the Shareholder Servicing Agent (given by such person or
persons and in such manner on behalf of the Shareholder Servicing Agent as the
Fund shall have authorized), the Custodian shall release funds or securities,
insofar as available, to the Shareholder Servicing Agent or as such Agent shall
otherwise instruct for payment to Fund shareholders who have delivered to such
Agent a request for repurchase or redemption of their shares of the Fund.
2.19 Proxies, Notices, Etc. - Promptly to deliver or mail to the Fund
all forms of proxies and all notices of meetings and any other notices or
announcements or information (including without limitation, pendency of calls
and maturities of securities and expirations of rights in connection therewith
and notices of exercise of call and put options written by the Fund and the
maturity of futures contracts and options thereon purchased or sold by the Fund)
affecting or relating to securities owned by the Fund that are received by the
Custodian or by any Agent, and upon receipt of proper instructions, to execute
and deliver or cause its nominee to execute and deliver such proxies or other
authorizations as may be required. Neither the Custodian nor its nominee shall
vote upon any of such securities or execute any proxy to vote thereon or give
any consent or take any other action with respect thereto (except as otherwise
herein provided) unless ordered to do so by proper instructions.
With respect to tender or exchange offers, rights offerings or similar
corporate actions ("Offers") the Custodian shall transmit promptly to the Fund
all written information received by
the Custodian from issuers of the securities involved and from the
party (or its agents) making the Offer. If the Fund desires to take action with
respect to any Offer, the Fund shall notify the Custodian prior to the last day
on which the Custodian is able to take timely action pursuant to he terms of
such Offer.
2.20 Nondiscretionary Details - Without the necessity of express
authorization from the Fund, (1) to attend to all nondiscretionary details in
connection with the sale, exchange, substitution, purchase, transfer or other
dealings with securities, funds or other property of the Fund held by the
Custodian except as otherwise directed from time to time by the Directors or
Trustees of the Fund, and (2) to make payments to itself or others for minor
expenses of handling securities or other similar items relating to the
Custodian's duties under this Agreement, provided that all such payments shall
be accounted for to the Fund.
2.21 Bills - Upon receipt of proper instructions, to pay or cause to be
paid, insofar as funds are available for the purpose, bills, statements and
other obligations of the Fund (including but not limited to interest charges,
taxes, management fees, compensation to Fund officers and employees, and other
operating expenses of the Fund).
2.22 Deposit of Fund Assets in Securities Systems - The Custodian may
deposit and/or maintain securities owned by the Fund in (i) The Depository Trust
Company, (ii) the Participants Trust Company, (iii) any book-entry system as
provided in Subpart O of Treasury Circular Xx. 000, 00 XXX 000, Xxxxxxx X of 31
CFR Part 350, or the book-entry regulations of federal agencies substantially in
the form of Subpart O, or (iv) any other domestic clearing agency registered
with the Securities and Exchange Commission under Section 17A of the Securities
Exchange Act of 1934 which acts as a securities depository and whose use the
Fund has previously approved in writing (each of the foregoing being referred to
in this Agreement as a "Securities System"). Utilization of a Securities System
shall be in accordance with applicable Federal Reserve Board and Securities and
Exchange Commission rules and regulations, if any, and subject to the following
provisions:
1) The Custodian may deposit and/or maintain Fund securities, either
directly or through one or more Agents appointed by the Custodian (provided that
any such agent shall be qualified to act as a custodian of the Fund pursuant to
the Investment Company Act of 1940 and the rules and regulations thereunder), in
a Securities System provided that such securities are represented in an account
("Account") of the Custodian or such Agent in the Securities System which shall
not include any assets of the Custodian or Agent other than assets held as a
fiduciary, custodian, or otherwise for customers;
2) The records of the Custodian with respect to securities of the Fund
which are maintained in a Securities System shall identify by book-entry those
securities belonging to the Fund;
3) The Custodian shall pay for securities purchased for the account of
the Fund only upon (i) receipt of advice from the Securities System that such
securities have been transferred to the Account, and (ii) the making of an entry
on the records of the Custodian to reflect such payment and transfer for the
account of the Fund. The Custodian shall transfer securities sold for the
account of the Fund only upon (i) receipt of advice from the Securities System
that payment for such securities has been transferred to the Account, and (ii)
the making of an entry on the records of the Custodian to reflect such transfer
and payment for the account of the Fund. Copies of all advices from the
Securities System of transfers of securities for the account of the Fund shall
identify the Fund, be maintained for the Fund by the Custodian or an Agent as
referred to above, and be provided to the Fund at its request. The Custodian
shall furnish the Fund confirmation of each transfer to or from the account of
the Fund in the form of a written advice or notice and shall furnish to the Fund
copies of daily transaction sheets reflecting each day's transactions in the
Securities System for the account of the Fund on the next business day;
4) The Custodian shall provide the Fund with any report obtained by the
Custodian or any Agent as referred to above on the Securities System's
accounting system, internal accounting control and procedures for safeguarding
securities deposited in the Securities System; and the Custodian and such Agents
shall send to the Fund such reports on their own systems of internal accounting
control as the Fund may reasonably request from time to time.
5) At the written request of the Fund, the Custodian will terminate the
use of any such Securities System on behalf of the Fund as promptly as
practicable.
2.23 Other Transfers - To deliver securities, funds and other property
of the Fund to a Subcustodian or another custodian as necessary to effect
transactions authorized by proper instructions and upon receipt of proper
instructions, to deliver securities, funds and other property of the Fund to a
Subcustodian or another custodian of the Fund; and, upon receipt of proper
instructions, to make such other disposition of securities, funds or other
property of the Fund in a manner other than or for purposes other than as
enumerated elsewhere in this Agreement, provided that the instructions relating
to such disposition shall state the amount of funds and/or securities to be
delivered and the name of the person or persons to whom delivery is to be made.
2.24 Investment Limitations - In performing its duties generally, and
more particularly in connection with the purchase, sale or exchange of
securities made by or for the Fund, the Custodian may assume unless and until
notified in writing to the contrary that proper instructions received by it are
not in conflict with or in any way contrary to any provisions of the Fund's
Declaration of Trust or Certificate of Incorporation or By-Laws (or comparable
documents) or votes or proceedings of the shareholders or Trustees or Directors
of the Fund. The Custodian shall in no event be liable to the Fund and shall be
indemnified by the Fund for any violation which occurs in the course of carrying
out instructions given by the Fund of any investment limitations to which the
Fund is subject or other limitations with respect to the Fund's powers to make
expenditures, encumber securities, borrow or take similar actions affecting the
Fund.
2.25 Custodian Advances. - In the event that the Custodian is directed
by proper instructions to make any payment or transfer of funds on behalf of the
fund for which there would be, at the close of business on the date of such
payment or transfer, insufficient funds held by the Custodian on behalf of the
Fund, the Custodian may, in its discretion without further proper instructions,
provide an advance ("Advance") to the Fund in an amount sufficient to allow the
completion of the transaction by reason of which such payment or transfer of
funds is to be made. In addition, in the event the Custodian is directed by
proper instructions to make any payment or transfer of funds on behalf of the
Fund as to which it is subsequently determined that the Fund has overdrawn its
cash account with the Custodian as of the close of business on the date of such
payment or transfer, said overdraft shall constitute an Advance. Any Advance
shall be payable on demand by Custodian, unless otherwise agreed by the Fund and
the Custodian, and shall accrue interest from the date of the Advance to the
date of payment by the Fund at the BBH & CO overdraft rate, which rate shall be
a rate agreed upon from time to time by the Custodian and the Fund. It is
understood that any transaction in respect of which the Custodian shall have
made an Advance, including but not limited to a foreign exchange contract or
transaction in respect of which the Custodian is not acting as a principal, is
for the account of and at the risk of the Fund, and not, by reason of such
Advance, deemed to be a transaction undertaken by the Custodian for its own
account and risk. The Custodian and the Fund acknowledge that the purpose of
Advances is to finance temporarily the purchase or sale of securities for prompt
delivery in accordance with the settlement terms of such transactions or to meet
emergency expenses not reasonably foreseeable by the Fund.
2.26 Restricted Securities. - In the case of a "restricted security",
the Fund shall have the responsibility to provide to or obtain for the
Custodian, the issuer of the security or other appropriate third party any
necessary documentation, including without limitation, legal opinions or
consents, and to take any necessary actions required in connection with the
registration of restricted securities in the manner provided in Section 2.3 upon
acquisition thereof by the Fund or required in connection with any sale or other
disposition thereof by the Fund. Upon acquisition and until so registered, the
Custodian shall have no duty to service such restricted securities, including
without limitation, the receipt and collection of cash and stock dividends,
rights and other items of like nature, nor shall the Custodian have
responsibility for the inability of the Fund to exercise in a timely manner any
right in respect of any restricted security or to take any action in a timely
manner in respect of any other type of corporate action relating to a restricted
security. Similarly, the Custodian shall not have responsibility for the
inability of the Fund to sell or otherwise transfer in a timely manner any
restricted security in the absence of any such documentation or action to be
provided, obtained or taken by the Fund. At such time as the Custodian shall
receive any restricted security, regardless of when it shall be registered as
aforesaid, the Fund shall also deliver to the Custodian a term sheet summarizing
those rights, restrictions or other matters of which the Custodian should have
knowledge, such as exercise periods, expiration dates and payment dates, in
order to assist the Custodian in servicing such securities. As used herein, the
term "restricted security" shall mean a security which is subject to
restrictions on transfer, whether by reason of contractual restrictions or
federal, state or foreign securities or similar laws, or a security which has
special rights or contractual features which do not apply to publicly-traded
shares of, or comparable interests representing, such security.
2.27 Proper Instructions - Proper instructions shall mean a tested
telex from the Fund or a written request, direction, instruction or
certification, which may be given by facsimile transmission, signed or
initialled on behalf of the Fund by one or more person or persons as the Board
of Trustees or Directors of the Fund shall have from time to time authorized,
provided, however, that no such instructions directing the delivery of
securities or the payment of funds to an authorized signatory of the Fund shall
be designed by such person. Those persons authorized to give proper instructions
may be identified by the Board of Trustees or Directors by name, title or
position and will include at least one officer empowered by the Board to name
other individuals who are authorized to give proper instructions on behalf of
the Fund. Telephonic or other oral instructions or instructions given by
facsimile transmission may be given by any one of the above persons and will be
considered proper instructions if the Custodian reasonably believes them to have
been given by a person authorized to give such instructions with respect to the
transaction involved. Oral instructions and instructions communicated as
described in the preceding sentence will be confirmed by tested telex or in
writing in the manner set forth above but the lack of such confirmation shall in
no way affect any action taken by the Custodian in reliance upon such oral
instructions or other instructions communicated as described in the preceding
sentence. The Fund authorizes the Custodian and the Custodian authorizes the
Fund to tape record any and all telephonic or other oral instructions given to
the Custodian by or on behalf of the Fund (including any of its officers,
Directors, Trustees, employees or agents or any investment manager or adviser or
person or entity with similar responsibilities which is authorized to give
proper instructions on behalf of the Fund to the Custodian). Proper instructions
may relate to specific transactions or to types or classes of transactions, and
may be in the form of standing instructions.
Proper instructions may include communications effected directly
between electro-mechanical or electronic devices or systems, in addition to
tested telex, provided that the Fund and the Custodian agree to the use of such
device or system.
2.28 Segregated Account - The Custodian shall upon receipt of proper
instructions establish and maintain on its books a segregated account or
accounts for and on behalf of the Fund, into which account or accounts may be
transferred cash and/or securities of the Fund, including securities maintained
by the Custodian pursuant to Section 2.22 hereof, said account to be maintained
(i) in accordance with the provisions of any agreement among the Fund, 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. (or
any futures commission merchant registered under the Commodity Exchange Act)
relating to compliance with the rules of the Options Clearing Corporation and of
any registered national securities exchange (or the Commodity Futures Trading
Commission or any registered contract market), or any similar organization or
organizations, regarding escrow or other arrangements in connection with
transactions by the Fund, (ii) for purposes of segregating cash or securities in
connection with options purchased, sold or written by the Fund or commodity
futures contracts or options thereon purchased or sold by the Fund, or in
connection with borrowings by the Fund (iii) for the purposes of compliance by
the Fund with the procedures required by Investment Company Act Release No.
10666, or any subsequent release or releases of the Securities and Exchange
Commission relating to the maintenance of segregated accounts by registered
investment companies, and (iv) as mutually agreed from time to time between the
Fund and the Custodian.
3. Powers and Duties of the Custodian with Respect to the Appointment
of Subcustodians: The Fund hereby authorizes and instructs the Custodian to hold
securities, funds and other property of the Fund which are maintained outside
the United States at subcustodians which must be (A) at the time of appointment
(1) a bank, trust company or other entity meeting the requirements of an
"eligible foreign custodian" under section 17(f) of the 1940 Act and the rules
and regulations thereunder or exempted therefrom by order of the Securities and
Exchange Commission, or (2) a bank, as defined in section 2(a)(5) of the 1940
Act meeting the requirements of a custodian under section 17(f) of the 1940 Act
and the rules and regulations thereunder to act on behalf of the Fund as a
subcustodian for purposes of holding cash, securities and other assets of the
Fund and performing other functions of the Custodian in countries other than the
United States of America; and (B) appointed pursuant to the provisions of this
Section 3 (a "Subcustodian"). The Fund shall approve in writing (1) the
appointment of each Subcustodian and the subcustodian agreement to be entered
into between such Subcustodian and the Custodian, and (2) if the Subcustodian is
organized under the laws of a country uther than the United States, the country
or countries in which the Subcustodian is authorized to hold securities, cash
and other property of the Fund. The Fund hereby further authorizes and instructs
the Custodian and any Subcustodian to utilize such securities depositories
located outside the United States which are approved in writing by the Fund to
hold securities, cash and other property of the Fund (a "Foreign Depository").
Upon such approval by the Fund, the Custodian is authorized on behalf of the
Fund to notify each Subcustodian of its appointment as such.
Those Subcustodians, and the countries where and the Foreign
Depositories through which they or the Custodian may hold securities, cash and
other property of the Fund which the Fund has approved to date are set forth on
Appendix A hereto. Such Appendix shall be amended from time to time as
Subcustodians, and/or countries and/or Foreign Depositories are changed, added
or deleted. The Fund shall be responsible for informing the Custodian
sufficiently in advance of a proposed investment which is to be held in a
country not listed on Appendix A, in order that there shall be sufficient time
for the Fund to give the approval required by the preceding paragraph and for
the Custodian to put the appropriate arrangements in place with such
Subcustodian, including negotiation of a subcustodian agreement and submission
of such subcustodian agreement to the Fund for approval.
If the Fund shall have invested in a security to be held in a country
before the foregoing procedures have been completed, such security shall be held
by such agent as the Custodian may appoint. In any event, the Custodian shall be
liable to the Fund for the actions of such agent if and only to the extent the
Custodian shall have recovered from such agent for any damages caused the Fund
by such agent. At the request of the Fund, Custodian agrees to remove any
securities held on behalf of the Fund by such agent, if practical, to an
approved Subcustodian. under such circumstances the Custodian will collect
income and respond to corporate actions on a best efforts basis.
With respect to securities and funds held by a Subcustodian, either
directly or indirectly, (including by a Foreign Depository or a foreign clearing
agency), notwithstanding any provision of this Agreement to the contrary,
payment for securities purchased and delivery of securities sold may be made
prior to receipt of the securities or payment, respectively, and securities or
payment may be received in a form, in accordance with governmental regulations,
rules of Foreign Depositories and foreign clearing agencies, or local custom and
practice generally accepted by Institutional Clients in the country or countries
in which payment or delivery occurs, but in all events subject to the standard
of care set forth in Section 6.3.
With respect to the securities and funds held by a Subcustodian, either
directly or indirectly (including by a Foreign Depository or a foreign clearing
agency), including demand and interest bearing deposits, currencies or other
deposits and foreign exchange contracts as referred to in Sections 2.12, 2.13,
2.14 and 2.15, the Custodian shall be liable to the Fund if and only to the
extent that such Subcustodian is liable to the Custodian and the Custodian
recovers under the applicable subcustodian agreement. The Custodian shall
nevertheless by liable to the Fund for its own negligence in transmitting to any
such Subcustodian any instructions received by it from the Fund and for its own
negligence in connection with the delivery of any securities or funds held by it
to any such Subcustodian.
In the event that any Subcustodian appointed pursuant to the provisions
of this Section 3 fails to perform any of its obligations under the terms and
conditions of the applicable subcustodian agreement, the Custodian shall use its
best efforts to cause such Subcustodians to perform such obligations. In the
event that the Custodian is unable to cause such Subcustodian to perform fully
its obligations thereunder, the Custodian shall forthwith upon the Fund's
request terminate such Subcustodian in accordance with the termination
provisions under the applicable subcustodian agreement and, if necessary or
desirable, appoint another subcustodian in accordance with the provisions of
this Section 3. At the election of the Fund, it shall have the right
to enforce, to the extent permitted by the subcustodian agreement and
applicable law, the Custodian's rights against any such Subcustodian for loss or
damage caused by the Fund by such Subcustodian.
The Custodian will not amend any subcustodian agreement or agree to
change or permit any changes thereunder except upon the prior written approval
of the Fund.
The Custodian may, at any time in its discretion upon notification to
the Fund, terminate any Subcustodian of the Fund in accordance with the
termination provisions under the applicable Subcustodian Agreement, and at the
written request of the Fund, the Custodian will terminate any Subcustodian in
accordance with the termination provisions under the applicable Subcustodian
Agreement.
If necessary or desirable, the Custodian may appoint another
subcustodian to replace a Subcustodian terminated pursuant to the foregoing
provisions of this Section 3, such appointment to be made upon approval of the
successor subcustodian by the Fund's Board of Directors or Trustees in
accordance with the provisions of this Section 3.
In the event the Custodian receives a claim from a Subcustodian under
the indemnification provisions of any subcustodian agreement, the Custodian
shall promptly give written notice to the Fund of such claim. No more than
thirty days after written notice to the Fund of the Custodian's intention to
make payment of such claim, the Fund will reimburse the Custodian the amount of
such payment except in respect of any negligence or misconduct of the Custodian.
4. Assistance by the Custodian as to Certain Matters: The Custodian may
assist generally in the preparation of reports to Fund shareholders and others,
audits of accounts and other ministerial matters of like nature.
5. Powers and Duties of the Custodian with Respect to its Role as
Recordkeeping Agent: The Custodian shall have and perform the following duties
with respect to recordkeeping:
5.1 Records - To create, maintain and retain such records relating to
its activities and obligations under this Agreement as are required under the
Investment Company Act of 1940 and the rules and regulations thereunder
(including Section 31 thereof and Rules 31a-1 and 31a-2 thereunder) and under
applicable Federal and State tax laws. All such records will be the property of
the Fund and in the event of termination of this Agreement shall be delivered to
the successor custodian.
5.2 Accounts - To keep books of account and render statements,
including interim monthly and complete quarterly financial statements, or copies
thereof, from time to time as reasonably requested by proper instructions.
5.3 Access to Records - The books and records maintained by the
Custodian pursuant to Sections 5.1 and 5.2 shall at all times during the
Custodian's regular business hours be open to inspection and audit by officers
of, attorneys for and auditors employed by the Fund and by employees and agents
of the Securities and Exchange Commission, provided that all such individuals
shall observe all security requirements of the Custodian applicable to its own
employees having access to similar records within the Custodian and such
regulations as may be reasonably imposed by the Custodian.
5.4 Opinion of Fund's Independent Certified Public Accountants - The
Custodian shall take all reasonable action as the Fund may request to obtain
from year to year favorable opinions from the Fund's independent certified
public accountants with respect to the Custodian's activities hereunder in
connection with the preparation of any periodic reports to or filings with the
SEC and with respect to any other requirements of the SEC.
5.5 Reports of Custodian's Independent Certified Public Accountants At
the request of the Fund, the Custodian shall deliver to the Fund a written
report prepared by the Custodian's independent certified public accountants with
respect to the services provided by the Custodian under this Agreement,
including, without limitation, the Custodian's accounting system, internal
accounting controls and procedures for safeguarding cash, securities and other
assets, including cash, securities and other assets deposited and/or maintained
in a Securities System or with a Subcustodian. Such report shall be of
sufficient scope and in sufficient detail as may reasonably be required by the
Fund and as may reasonably be obtained by the Custodian.
6. Standard of Care and Related Matters:
6.1 Liability of the Custodian with Respect to Proper Instructions;
Evidence of Authority, Etc. The Custodian shall not be liable for any action
taken or omitted in reliance upon proper instructions believed by it to be
genuine or upon any other written notice, request, direction, instruction,
certificate or other instrument believed by it to be genuine and signed by the
proper party or parties.
The Secretary or Assistant Secretary of the Fund shall certify to the
Custodian the names, signatures and scope of authority of all persons authorized
to give proper instructions or any other such notice, request, direction,
instruction, certificate or instrument on behalf of the Fund, the names and
signatures of the officers of the Fund, the name and address of the Shareholder
Servicing Agent, and any resolutions, votes, instructions or directions of the
Fund's Board of Directors or Trustees or shareholders. Such certificate may be
accepted and relied upon by the Custodian as conclusive evidence of the facts
set forth therein and may be considered in full force and effect until receipt
of a similar certificate to the contrary.
So long as and to the extent that it is in the exercise of reasonable
care, the Custodian shall not be responsible for the title, validity or
genuineness of any property or evidence of title thereto received by it or
delivered by it pursuant to this Agreement.
The Custodian shall be entitled to receive and act upon advice of (i)
counsel regularly retained by the Custodian in respect of custodian matters,
(ii) counsel for the Fund, or (iii) such other counsel as the Fund and the
Custodian may agree upon, with respect to all matters, and the Custodian shall
be without liability for any action reasonably taken or omitted pursuant to such
advice; provided that with respect to the performance of any action or omission
of any action upon such advice, the Custodian shall be required to conform to
the standard of care set forth in section 6.3.
6.2 Liability of the Custodian with Respect to Use of Securities
Systems - With respect to he portfolio securities, cash and other property of
the Fund held by a Securities System utilized by the Custodian or any
Subcustodian, the Custodian shall be liable to the Fund only for any loss or
damage to the Fund resulting from use of the Securities System if caused by or
resulting from any negligence, misfeasance or misconduct of the Custodian or any
of its Agents (as said term is defined in Section 6.6) or of any of its or its
Agents' employees or from any failure of the Custodian or any such Agent to
enforce effectively such rights as it may have against the Securities System. At
the election of the Fund, it shall be entitled to be subrogated to the rights of
the Custodian with respect to any claim against the Securities System or any
other person which the Custodian may have as a consequence of any such loss or
damage to the Fund if and to the extent that the Fund has not been made whole
for any such loss or damage.
6.3 Standard of Care; Liability; Indemnification - The Custodian shall
be held only to the exercise of reasonable care and diligence in carrying out
the provisions of this Agreement, provided that the Custodian shall not thereby
be required to take any action which is in contravention of any applicable law,
rule or regulation or any order or judgment of any court of competent
jurisdiction. The Fund agrees to indemnify and hold harmless the Custodian and
its nominees from all claims and liabilities (including counsel fees) incurred
or assessed against it or its nominees in connection with the performance of
this Agreement, except such as may arise from its or its nominee's breach of the
relevant standard of conduct set forth in this Agreement. Without limiting the
foregoing indemnification obligation of the Fund, the Fund agrees to indemnify
the Custodian and any nominee in whose name portfolio securities or other
property of the Fund is registered against any liability the Custodian or such
nominee may incur by reason of taxes assessed to the Custodian or such nominee
or other costs, liability or expense incurred by the Custodian or such nominee
resulting directly or indirectly from the fact that portfolio securities or
other property of the Fund is registered in the name of the Custodian or such
nominee.
In no event shall the Custodian incur liability under this Agreement if
the Custodian or any Subcustodian, Securities System, Foreign Depository,
Banking Institution or any agent or entity utilized by any of them is prevented,
forbidden or delayed from performing, or omits to perform, any act or thing
which this Agreement provides shall be performed or omitted to be performed, by
reason of (i) any Sovereign Risk or (ii) any provision of any present or future
law or regulation or order of the United States of America or any state thereof,
or of any foreign country or political subdivision thereof, or of any securities
depository or clearing agency which operates a central system for handling of
securities or equivalent book-entries in a country or which operates a
transnational system for the central handling of securities or equivalent
book-entries, or (iii) any provision of any order or judgment of any court of
competent jurisdiction. A "Sovereign Risk" shall mean nationalization,
expropriation, devaluation, revaluation, confiscation, seizure, cancellation,
destruction or similar action by any governmental authority, de facto or de
jure; or enactment, promulgation, imposition or enforcement by any such
governmental authority of currency restrictions, exchange controls, taxes,
levies or other charges affecting the Fund's property; or acts of war,
terrorism, insurrection or revolution; or any other act or event beyond the
Custodian's control.
6.4 Reimbursement of Disbursements, Etc. - The Custodian shall be
entitled to receive reimbursement from the Fund on demand, in the manner
provided in Section 7, for its cash disbursements, expenses and charges
(including the fees and expenses of any Subcustodian or any Agent) in connection
with this Agreement, but excluding salaries and usual overhead expenses.
6.5 Security for Obligations to Custodian - If the Custodian or any
nominee thereof shall incur or be assessed any taxes, charges, expenses,
assessments, claims or liabilities of or relating to the Fund in connection with
the performance of this Agreement (collectively a "Liability"), except such as
may arise or result from its or such nominee's breach of the relevant standard
of conduct set forth in this Agreement, or except such as constitutes a tax on
income, gross receipts or the like of the Custodian or its nominees, or if the
Custodian shall make any Advance to the Fund, then in such event if the Fund
shall fail to pay such Advance and interest thereon when due or shall fail to
reimburse or indemnify the Custodian promptly in respect of a Liability, the
Fund agrees immediately upon the request of the Custodian to liquidate
securities or other property of the Fund held in safekeeping by the Custodian in
an amount sufficient to provide the cash proceeds necessary to fully pay such
obligations to the Fund, and in the event the Fund shall fail to do so, the
Custodian shall have the right to cause the sale of such securities as the
Custodian shall select in order to produce the necessary cash proceeds, and in
either such event such cash proceeds shall be applied to payment of such
obligation to the Custodian.
Without limiting the generality of the foregoing, the Fund acknowledges
that any deposits or other sums at any time credited by or due from the
Custodian to the Fund may at any time be applied or set off by the Custodian
against any obligation of the Fund to the Custodian, including in respect of any
Advance, interest thereon or liability.
6.6 Appointment of Agents - The Custodian may at any time or times in
its discretion appoint (and may at any time remove) any other bank or trust
company as its agent (an "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 such Agent (other than an Agent appointed pursuant to the
third paragraph of Section 3) shall not relieve the Custodian of any of its
responsibilities under this Agreement.
6.7 Powers of Attorney - Upon request, the Fund shall deliver to the
Custodian such proxies, powers of attorney or other instruments as may be
reasonable and necessary or desirable in connection with the performance by the
Custodian or any Subcustodian of their respective obligations under this
Agreement or any applicable subcustodian agreement.
7. Compensation of the Custodian: The Fund shall pay the Custodian a
custody fee based on such fee schedule as may from time to time be agreed upon
in writing by the Custodian and the Fund. Such fee, together with all amounts
for which the Custodian is to be reimbursed in accordance with Section 6.4,
shall be billed to the Fund and be paid in cash to the Custodian.
8. Termination; Successor Custodian: This Agreement shall continue in
full force and effect until terminated by either party by an instrument in
writing delivered or mailed, postage prepaid, to the other party, such
termination to take effect not sooner than sixty (60) days after the date of
such delivery or mailing. In the event of termination the Custodian shall be
entitled to receive prior to delivery of the securities, funds and other
property held by it all accrued fees and unreimbursed expenses the payment of
which is contemplated by Sections 6.4 and 7, and all Advances and Liabilities,
upon receipt by the Fund of a statement setting forth such fees, expenses,
Advances and Liabilities.
In the event of the appointment of a successor custodian, it is agreed
that the funds and securities owned by the Fund and held by the Custodian or any
Subcustodian shall be delivered to the successor custodian, and the Custodian
agrees to cooperate with the Fund in execution of documents and performance of
other actions necessary or desirable in order to substitute the successor
custodian for the Custodian under this Agreement.
9. Entire Agreement, Waiver, Amendment: This Agreement constitutes the
entire understanding and agreement of the parties hereto with respect to the
subject matter hereof. No provisions of this Agreement may be amended or
terminated except by a statement in writing signed by the party against which
enforcement of the amendment or termination is sought provided that Appendix A
listing the Subcustodians and Foreign Depositories approved by the Fund may be
amended from time to time to add or delete one or more of such entities by
delivery to the Custodian of a revised Appendix A executed by a person
authorized to bind the Fund, such amendment to take effect immediately upon
execution of the revised Appendix A by the Custodian.
In connection with the operation of this Agreement, the Custodian and
the Fund may agree in writing from time to time on such provisions
interpretative of or in addition to the provisions of this Agreement as may in
their joint opinion be consistent with the general tenor of this Agreement. No
interpretative or additional provisions made as provided in the preceding
sentence shall be deemed to be an amendment of this Agreement.
The section headings in this Agreement are for the convenience of the
parties and in no way alter, amend, limit or restrict the contractual
obligations of the parties set forth in this Agreement.
10. Governing Law: This Agreement is executed and delivered in The
Commonwealth of Massachusetts and shall be governed by and construed according
to the laws of said Commonwealth.
11. Notices: Notices and other writings delivered or mailed postage
prepaid to the Fund addressed to the Fund at Xxx Xxxxxx Xxxxxxxxx Xxxxx, Xxxxx
000, 000 Xxxxx Xxxxxxx Xxxxxxx, Xxxx Xxxxx, Xxxxxxx 00000 or by facsimile
transmission to the Fund at (000) 000-0000 or to such other address or facsimile
number as the Fund may have designated to the Custodian in writing or to the
Custodian at 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Manager,
Securities Department, or by facsimile transmission to the Custodian at
000-000-0000, or to such other address or facsimile number as the Custodian may
have designated to the Fund in writing, shall be deemed to have been properly
delivered or given hereunder to the respective addressee.
12. Binding Effect. This Agreement shall be binding on and shall inure
to the benefit of the Fund and the Custodian and their respective successors and
assigns, provided that neither party hereto may assign this Agreement or any of
its rights or obligations hereunder without the prior written consent of the
other party.
13. 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.
14. Representative Capacity: The Fund's Agreement and Declaration of
Trust has been filed with the Secretary of State of the Commonwealth of
Massachusetts. The obligations of the Fund are not personally binding upon, nor
shall resort be had to the private property of any of the Trustees,
shareholders, officers, employees or agents of the Fund, but only the Fund's
property shall be bound.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed in its name and behalf on the day and year first above written.
IVY FUND XXXXX BROTHERS XXXXXXXX & CO.
By /s/ C. XXXXXXX XXXXXX /s/ XXXXXX X. XXXXXXXX
APPENDIX "B"
TO
CUSTODIAN AGREEMENT
BETWEEN
IVY FUND and XXXXX BROTHERS XXXXXXXX & CO.
Dated as of _________________
The following is a list of Portfolios for which the Custodian shall serve under
a Custodian Agreement dated as of ______________ (the "Agreement"):
IVY GROWTH FUND
IVY INTERNATIONAL FUND
IVY EMERGING GROWTH FUND
IVY GROWTH WITH INCOME FUND
IVY CHINA REGION FUND
IVY MONEY MARKET FUND
IN WITNESS WHEREOF, each of the parties hereto has caused this Appendix to be
executed in its name and on behalf of each such Portfolio.
IVY FUND XXXXX BROTHERS XXXXXXXX & CO.
By: /s/ C. XXXXXXX XXXXXX By: /s/ XXXXXX X. XXXXXXXX
Name: C. Xxxxxxx Xxxxxx Name: Xxxxxx X. Xxxxxxxx
Title: Secretary, Treasurer Title: Deputy Manager
