INVESTA MANAGEMENT CO., INC.
FORM OF CUSTODY AGREEMENT
This AGREEMENT is entered into as of December , 1999, between Investa
Management Co., Inc., a Maryland corporation (the "Company"), having its
principal office and place of business at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 and Union Bank of California, N.A. (the "Bank"), a National Banking
Association organized under the laws of the United States with its principal
place of business at 000 Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, XX 00000.
In consideration of the mutual promises set forth below, the Company and the
Bank agree as follows:
1. DEFINITIONS.
Whenever used in this Agreement or in any Schedules to this Agreement, the words
and phrases set forth below shall have the following meanings, unless the
context otherwise requires:
1.1 "Authorized Person" shall be deemed to include the President, and
any Vice President, the Secretary, the Assistant Secretary, the Treasurer and
any Assistant Treasurer of the Company, or any other person, including persons
employed by the Investment Adviser, whether or not any such person is an officer
of the Company, duly authorized by the Board of Directors of the Company to give
Oral Instructions and Written Instructions on behalf of the Company and listed
in the certification annexed hereto as Schedule A or such other successor
certification as may be received by the Bank from time-to-time.
1.2 "Book-Entry System" shall mean the Federal Reserve/Treasury
book-entry system for United States and federal agency securities, its successor
or successors and its nominee or nominees.
1.3 "Depository" shall mean The Depository Trust Company ("DTC"), a
clearing agency registered with the Securities and Exchange Commission under
Section 17(a) of the Securities Exchange Act of 1934, as amended, its successor
or successors and its nominee or nominees, in which the Bank is hereby
specifically authorized to make deposits. The term "Depository" shall further
mean and include any other person to be named in Written Instructions authorized
to act as a depository under the 1940 Act, its successor or successors and its
nominee or nominees.
1.4 "Money Market Security" shall be deemed to include, without
limitation, debt obligations issued or guaranteed as to interest and principal
by the Government of the United States or agencies or instrumentalities thereof,
and repurchase and reverse repurchase agreements with respect to any of the
foregoing types of securities, commercial paper, bank certificates of deposit,
bankers' acceptances and short-term corporate obligations, where the purchase or
sale of such securities normally requires settlement in federal funds on the
same day as such purchase or sale.
1.5 "Prospectus" shall mean the Series' current prospectus and
statement of additional information relating to the registration of the Series'
Shares under the Securities Act of 1933, as amended.
1.6 "Security" or "Securities" shall be deemed to include bonds,
debentures, notes, stocks, shares, evidences of indebtedness, and other
securities and investments from time-to-time owned by each Series.
1.7 "Shares" refers to the shares of common stock of a Series of the
Company.
1.8 "Series" refers to Funds shown on Schedule B, attached hereto and
made a part hereof by this reference, and any such other Series as may from
time-to-time be created and designated in accordance with the provisions of the
Declaration of Company.
-1-
1.9 "Transfer Agent" shall mean the person which performs the transfer
agent, dividend disbursing agent and shareholder servicing agent functions for
the Company.
1.10 "Written Instructions" shall mean a written or electronic
communication actually received by the Bank from an Authorized Person or from a
person reasonably believed by the Bank to be an Authorized Person by telex or
any other such system whereby the receiver of such communication is able to
verify through codes or otherwise with a reasonable degree of certainty the
authenticity of the sender of such communication.
1.11 The "1940 Act" refers to the Investment Company Act of 1940, and
the rules and regulations thereunder, all as amended from time-to-time.
2. APPOINTMENT OF CUSTODIAN.
2.1 The Company hereby constitutes and appoints the Bank as Custodian
of all the Securities and moneys owned by or in the possession of the Company
during the period of this Agreement.
2.2 The Bank hereby accepts appointment as Custodian for the Company
and agrees to perform the duties thereof as hereinafter set forth.
3. COMPENSATION.
3.1 The Company will compensate the Bank for its services rendered
under this Agreement in accordance with the fees set forth in the Fee Schedule
attached as Schedule C and made a part of this Agreement by this reference.
3.2 The parties to this Agreement will agree upon the compensation for
acting as Custodian for any Series hereafter established and designated, and at
the time that the Bank commences serving as such for said Series, such agreement
shall be reflected in a Fee Schedule for the Company, which shall be attached to
Schedule C of this Agreement.
3.3 Any compensation agreed to hereunder may be adjusted from
time-to-time by not less than 90 days advance written notice of such fee
increase from Bank to Company.
3.4 The Bank will xxxx the Company as soon as practicable after the end
of each month, and said xxxxxxxx will be detailed in accordance with the Fee
Schedule. The Company will promptly pay to the Bank the amount of such billing.
In the event such xxxx is not promptly paid, the Bank may charge against any
money specifically allocated to the Company such compensation and any expenses
incurred by the Bank in the performance of its duties pursuant to such
agreement. The Bank shall also be entitled to charge against any money held by
it and specifically allocated to the Company the amount of any loss, damage,
liability or expense incurred with respect to such Company, including counsel
fees, for which it shall be entitled to reimbursement under the provision of
this Agreement.
The expenses which the Bank may charge against such account include,
but are not limited to, the expenses of Sub-Custodians and foreign branches of
the Bank incurred in settling transactions outside of San Francisco or New York
City involving the purchase and sale of Securities of the Company.
4. CUSTODY OF CASH AND SECURITIES.
4.1 Receipt and Holding of Assets. The Company will deliver or cause to
be delivered to the Bank all Securities and moneys owned by it, including cash
received from the issuance's of its Shares, at any time during the period of
this Agreement and shall specify the Series to which the Securities and moneys
are to be specifically allocated. The Bank shall physically segregate and keep
apart on its books, the assets of each Series, including separate identification
of Securities held in the Book-Entry System. The Bank will not be responsible
for such Securities and moneys until actually received by it. The Company shall
instruct the Bank from time-to-time in its sole discretion, by means of Written
Instructions as to the manner in which and in what amounts Securities and moneys
of a Series are to be deposited on behalf of such Series in the Book-Entry
System or the Depository and specifically allocated on the books of the Bank to
such Series. Securities and moneys of the Company deposited in the Book-Entry
System or the Depository will be represented in accounts which include only
assets held by the Bank for customers, including but not limited to accounts in
which the Bank acts in a fiduciary or representative capacity.
-2-
4.2 ACCOUNTS AND DISBURSEMENTS. The Bank shall establish and maintain a
separate account for each Series and shall credit to the separate account of
each Series all moneys received by it for the account of such Series and shall
disburse the same only:
4.2.1 In payment for Securities purchased for such Series, as
provided in Section 5 hereof;
4.2.2 In payment of dividends or distributions with respect to
the Shares of such Series;
4.2.3 In payment of original issue or other taxes with respect
to the Shares of such Series;
4.2.4 In payment for Shares which have been redeemed by such
Series;
4.2.5 Pursuant to Written Instructions, setting forth the name
of such Series, the name and address of the person to whom the payment is to be
made, the amount to be paid and the purpose for which payment is to be made; or
4.2.6 In payment of fees and in reimbursement of the expenses
and liabilities of the Bank attributable to such Series.
4.3 CONFIRMATIONS AND STATEMENTS. Promptly after the close of business
each day, the Bank shall make available to the Company information with respect
to all transfers to and from the account of a Series during that day. The Bank
need not send written confirmation or a summary of all such transfers to or from
the account of each Series. Provided, however, that upon the written request of
Company, Bank shall provide within 5 business days of such written request a
copy of any confirmations which include transactions of the Company. At least
monthly, the Bank shall furnish the Company with a detailed statement of the
Securities and moneys held for each Series under this Agreement.
4.4 REGISTRATION OF SECURITIES AND PHYSICAL SEPARATION.
All Securities held for a Series which are issued or issuable only in
bearer form, except such Securities as are held in the Book-Entry System, shall
be held by the Bank in that form; all other Securities held for a Series may be
registered in the name of any duly appointed registered nominee of the Bank as
the Bank may from time-to-time determine, or in the name of the Book-Entry
System or the Depository of their successor or successors, or their nominee or
nominees. When a reference is made in this Agreement to an action to be taken by
Bank, it is understood by the parties that the action may be taken directly or
in the case of book-entry Securities, through the appropriate depository. The
Company agrees to furnish to the Bank appropriate instruments to enable the Bank
to hold or deliver in proper form for transfer, or to register in the name of
its registered nominee or in the name of the Book-Entry System or the
Depository, any Securities which it may hold for the account of a Series. The
Bank (or its Sub-Custodians) shall hold all such Securities specifically
allocated to a Series which are not held in the Book-Entry System or the
Depository in a separate account for such Series in the name of such Series
physically segregated at all times from those of any other person or persons.
Where Securities purchased by a Series are in a fungible bulk of Securities
registered in the name of the Bank (or its nominee) or shown on the Bank's
account on the books of the Depository or the Book-Entry System, the Bank shall
by book entry or otherwise identify the quantity of those Securities belonging
to such Series.
4.5 COLLECTION OF INCOME AND OTHER MATTERS AFFECTING SECURITIES. Unless
otherwise instructed to the contrary by Written Instructions, the Bank shall
with respect to all Securities held for a Series in accordance with this
Agreement:
4.5.1 Collect all income due or payable and credit such income
promptly on the contractual settlement date, whether or not actually received,
to the account of the appropriate Series, except for income from foreign issues.
Income which has not been collected after reasonable effort, within a time
agreed upon between the parties, shall be repaid to the Bank pending final
collection at such date as may be mutually agreed upon by the Company and the
Bank.
-3-
4.5.2 Present for payment and collect the amount payable upon
all Securities which may mature or be called, redeemed or retired, or otherwise
become payable. Bank shall make a good faith effort to inform Company of any
call, redemption or retirement date with respect to Securities which are owned
by a Series and held by the Bank or its nominee. Notwithstanding the foregoing,
the Bank shall have no responsibility to the Company or a Series for monitoring
or ascertaining of any call, redemption or retirement date with respect to
Securities which are held by a Series and held by Bank or its nominee. Nor shall
the Bank have any responsibility or liability to the Company or to a Series for
any loss by a Series for any missed payment or other default resulting therefrom
unless the Bank received timely notification, which shall not be less than 5
business days, from the Company or the Series specifying the time, place and
manner for the presentment of any put bond owned by a Series and held by the
Bank or its nominee. The Bank shall not be responsible and assumes no liability
to the Company or a Series for the accuracy or completeness of any notification
the Bank shall provide to the Company or a Series with respect to put
Securities;
4.5.3 Execute any necessary declarations or certificates of
ownership under the Federal income tax laws or the laws or regulations of any
other taxing authority now or hereafter in effect; and
4.5.4 Hold for the account of each Series all rights and other
Securities issued with respect to any Securities held by the Bank hereunder for
such Series.
4.6 DELIVERY OF SECURITIES AND EVIDENCE OF AUTHORITY. Upon
receipt of Written Instructions, the Bank shall:
4.6.1 Execute and deliver or cause to be executed and
delivered to such persons as may be designated in such Written Instructions,
proxies, consents, authorization, and any other instruments whereby the
authority of the Company as owner of any Securities may be exercised;
4.6.2 Deliver or cause to be delivered any Securities held for
a Series in exchange for other Securities or cash issued or paid in connection
with the liquidation, reorganization, refinancing, merger, consolidation or
recapitalization of any corporation, or the exercise of any conversion
privilege;
4.6.3 Deliver or cause to be delivered any Securities held for
a Series to any protective committee, reorganization committee or other person
in connection with the reorganization, refinancing, merger, consolidation or
recapitalization or sale of assets of any corporation, and receive and hold
under the terms of this Agreement in the separate (bookkeeping) account for each
Series such certificates of deposit, interim receipts or other instruments or
documents as may be issued to it to evidence such delivery;
4.6.4 Make or cause to be made such transfers or exchanges of
the assets and take such steps as shall be stated in said Written Instructions
to be for the purpose of effectuating any duly authorized plan of liquidation,
reorganization, merger, consolidation or recapitalization of the Company;
4.6.5 Deliver Securities owned by any Series upon sale of such
Securities for the account of such Series pursuant to Section 5;
4.6.6 Deliver Securities owned by any Series upon the receipt
of payment in connection with any repurchase agreement related to such
Securities entered into by such Series;
4.6.7 Deliver Securities owned by any Series to the issuer
thereof or its agent when such Securities are called, redeemed, retired or
otherwise become payable; provided, however, that in any such case the cash or
other consideration is be delivered to the Bank.
4.6.8 Deliver Securities owned by any Series in connection
with any loans of Securities made by such Series but only against receipt of
adequate collateral as agreed upon from time-to-time by the Bank and the Company
which may be in any form permitted under the 1940 Act or any interpretations
thereof issued by the Securities and Exchange Commission or its staff;
4.6.9 Deliver Securities owned by any Series for delivery as
security in connection with any borrowings by such Series requiring a pledge of
Series assets, but only against receipt of amount borrowed;
-4-
4.6.10 Deliver Securities owned by any Series upon receipt of
instructions from such Series for delivery to the Transfer Agent or to the
holders of Shares of such Series in connection with distributions in kind, as
may be described from time-to-time in the Series' Prospectus, in satisfaction of
requests by holders of Shares for repurchase or redemption; and
4.6.11 Deliver Securities owned by any Series for any other
proper business purpose, but only upon receipt of, in addition to Written
Instructions, a certified copy of a resolution of the Board of Directors signed
by an Authorized Person and certified by the Secretary or Assistant Secretary of
the Company, specifying the Securities to be delivered, setting forth the
purpose for which such delivery is to be made, declaring such purpose to be a
proper business purpose, and naming the person or persons to whom delivery of
such Securities shall be made.
4.7 ENDORSEMENT AND COLLECTION OF CHECKS, ETC. The Bank is hereby
authorized to endorse and collect all checks, drafts or other orders for the
payment of money received by the Bank for the account of a Series.
5. PURCHASE AND SALE OF INVESTMENTS OF THE SERIES.
5.1 Promptly after each purchase of Securities for a Series, the
Company shall deliver to the Bank Written Instructions specifying with respect
to each purchase: (1) the name of the Series to which such Securities are to be
specifically allocated; (2) the name of the issuer and the title of the
Securities; (3) the number of shares or the principal amount purchased and
accrued interest, if any; (4) the date of purchase and settlement; (5) the
purchase price per unit; (6) the total amount payable upon such purchase; (7)
the name of the person from whom or the broker through whom the purchase was
made, if any; (8) whether or not such purchase is to be settled through the
Book-Entry System or the Depository; and (9) whether the Securities purchased
are to be deposited in the Book-Entry System or the Depository. The Bank shall
receive all Securities purchased by or for a Series and upon receipt of such
Securities shall pay out of the moneys held for the account of such Series the
total amount payable upon such purchase, provided that the same conforms to the
total amount payable as set forth in such Written Instructions.
5.2 Promptly after each sale of Securities of a Series, the Company
shall deliver to the Bank Written Instructions specifying with respect to such
sale: (1) the name of the Series to which the Securities sold were specifically
allocated; (2) the name of the issuer and the title of the Securities; (3) the
number of shares or principal amount sold, and accrued interest, if any; (4) the
date of sale; (5) the sale price per unit; (6) the total amount payable to the
Series upon such sale; (7) the name of the broker through whom or the person to
whom the sale was made; and (8) whether or not such sale is to be settled
through the Book-Entry System or the Depository. The Bank shall deliver or cause
to be delivered the Securities to the broker or other person designated by the
Company upon receipt of the total amount payable to such Series upon such sale,
provided that the same conforms to the total amount payable to such Series as
set forth in such Written Instructions. Subject to the foregoing, the Bank may
accept payment in such form as shall be satisfactory to it, and may deliver
Securities and arrange for payment in accordance with the customs prevailing
among dealers in Securities.
6. PAYMENT OF DIVIDENDS OR DISTRIBUTIONS.
6.1 The Company shall furnish to the Bank the resolution of the Board
of Directors of the Company certified by the Secretary or Assistant Secretary
(i) authorizing the declaration of dividends or distribution with respect to a
Series on a specified periodic basis and authorizing the Bank to rely on Written
Instructions specifying the date of the declaration of such dividend or
distribution, the date of payment thereof, the record date as of which
shareholders entitled to payment shall be determined, the amount payable per
share to the shareholders of record as of the record date and the total amount
payable per share to the shareholders of record as of the record date and the
total amount payable to the Transfer Agent on the payment date, or (ii) setting
forth the date of declaration of any dividend or distribution by a Series, the
date of payment thereof, the record date as of which shareholders entitled to
payment shall be determined, the amount payable per share to the shareholders of
record as of the record date and the total amount payable to the Transfer Agent
on the payment date.
-5-
6.2 Upon the payment date specified in such resolution or Written
Instructions the Bank shall pay out the moneys specifically allocated to and
held for the account of the appropriate Series the total amount payable to the
Transfer Agent of the Company.
7. SALE AND REDEMPTION OF SHARES OF A SERIES.
7.1 Whenever the Company shall sell or redeem any Shares of a Series,
the Company shall deliver or cause to be delivered to the Bank Written
Instructions duly specifying:
(1) The name of the Series whose Shares were sold or redeemed;
(2) The number of Shares sold or redeemed, trade date, and
price; and
(3) The amount of money to be received or paid by the Bank for
the sale or redemption of such Shares.
7.2 Upon receipt of such money from the Transfer Agent, the Bank shall
credit such money to the separate account of the Series.
7.3 Upon issuance of any Shares of a Series in accordance with the
foregoing provisions of this Section 7, the Bank shall pay, out of the moneys
specifically allocated and held for the account of such Series, all original
issue or other taxes required to be paid in connection with such issuance upon
the receipt of Written Instructions specifying the amount to be paid.
7.4 Upon receipt from the Transfer Agent of advice setting forth the
number of Shares of a Series received by the Transfer Agent for redemption and
that such Shares are valid and in good form for redemption, the Bank shall make
payment to the Transfer Agent out of the moneys specifically allocated to and
held for the account of the Series.
8. INDEBTEDNESS.
8.1 The Company will cause to be delivered to the Bank by any bank
(excluding the Bank) from which the Company borrows money for temporary
administrative or emergency purposes using Securities as collateral for such
borrowings, a notice or undertaking in the form currently employed by any such
bank setting forth the amount which such bank will loan to the Company against
delivery of a stated amount of collateral. The Company shall promptly deliver to
the Bank Written Instructions stating with respect to each such borrowing: (1)
the name of the Series for which the borrowing is to be made; (2) the name of
the bank; (3) the amount and terms of the borrowing, which may be set forth by
incorporating by reference an attached promissory note, duly endorsed by the
Company, or other loan agreement; (4) the time and date, if known, on which the
loan is to be entered into (the "borrowing date"); (5) the date on which the
loan becomes due and payable; (6) the total amount payable to the Company for
the separate account of the Series on the borrowing date; (7) the market value
of Securities to be delivered as collateral for such loan, including the name of
the issuer, the title and the number of shares or the principal amount of any
particular Securities; (8) whether the Bank is to deliver such collateral
through the Book-Entry System or the Depository; and (9) a statement that such
loan is in conformance with the 1940 Act and the Series' Prospectus.
8.2 Upon receipt of the Written Instructions referred to above, the
Bank shall deliver on the borrowing date the specified collateral and the
executed promissory note, if any, against delivery by the lending bank of the
total amount of the loan payable, provided that the same conforms to the total
amount payable as set forth in the Written Instructions. The Bank may, at the
option of the lending bank, keep such collateral in its possession, but such
collateral shall be subject to all rights therein given the lending bank by
virtue of any promissory note or loan agreement. The Bank shall deliver as
additional collateral in the manner directed by the Company from time-to-time
such Securities specifically allocated to such Series as may be specified in
Written Instructions to collateralize further any transaction described in this
Section 8. The Company shall cause all Securities released from collateral
status to be returned directly to the Bank, and the Bank shall receive from
time-to-time such return of collateral as may be tendered to it. In the event
that the Company fails to specify in Written Instructions all of the information
required by this Section 8, the Bank shall not be under any obligation to
deliver any Securities. Collateral returned to the Bank shall be held hereunder
as it was prior to being used as collateral.
-6-
9. PERSONS HAVING ACCESS TO ASSETS OF THE SERIES.
9.1 No Director, officer, employee or agent of the Company, and no
officer, director, employee or agent of the Advisor, shall have physical access
to the assets of the Company held by the Bank or be authorized or permitted to
withdraw any investments of the Company, nor shall the Bank deliver any assets
of the Company to any such person. No officer, director, employee or agent of
the Bank who holds any similar position with the Company or the Advisor shall
have access to the assets of the Company.
9.2 The individual employees of the Bank initially duly authorized by
the Board of Directors of the Bank to have access to the assets of the Company
are listed on Schedule A which is attached and made a part of this Agreement by
this reference. The Bank shall advise the Company of any change in the
individuals authorized to have access to the assets of the Company by written
notice to the Company.
9.3 Nothing in this Section 9 shall prohibit any officer, employee or
agent of the Company, or any officer, director, employee or agent of the
Advisor, from giving Written Instructions to the Bank so long as it does not
result in delivery of or access to assets of the Company prohibited by this
Section 9.
10. CONCERNING THE BANK.
10.1 STANDARD OF CONDUCT. The Bank 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 and reasonably
believed by it to be valid or genuine and shall be held harmless in acting upon
proper instructions, resolutions, any notice, request, consent, certificate or
other instrument reasonably believed by it to be genuine and to be signed by the
proper party or parties and shall be entitled to receive as conclusive proof of
any fact or matter required to be ascertained by it hereunder, a certificate
signed by the President, a Vice President, the Treasurer, the Secretary or an
Assistant Secretary of the Company. The Bank may receive and accept a resolution
as conclusive evidence (a) of the authority of any person to act in accordance
with such vote or (b) of any determination or of any action by the Board of
Directors pursuant to the Declaration of Company as described in such vote, and
such vote may be considered as in full force and effect until receipt by the
Bank of written notice from the Secretary or an Assistant Secretary to the
contrary.
The Bank shall be entitled to rely on and may act upon advice of
counsel (who may be counsel for the Company) on all matters, and shall be
without liability for any action reasonably taken or omitted pursuant to such
advice. Provided, however, that if such reliance involves a potential material
loss to the Company, the Bank shall advise the Company of any such actions to be
taken in accordance with such advice of counsel to the Bank.
The Bank shall be held to the exercise of reasonable care in carrying
out the provisions of this Agreement but shall be liable only for its own
negligent or bad faith acts or wilful misconduct or wilful failures to act by
the Bank and its agents or Employees. Bank shall have no responsibility for
reviewing or questioning the acts or records of any prior Custodian. The Company
shall indemnify the Bank and hold it harmless from and against all losses,
liabilities, demands, claims, actions, expenses, attorneys' fees, and taxes with
respect to each Series which the Bank may suffer or incur on account of being
Bank hereunder except to the extent that such losses, liabilities, demands,
claims, actions, expenses, attorneys fees or taxes arise from the Bank's own
gross negligence or bad faith. Notwithstanding the foregoing the Bank shall be
liable to the Company for any loss or damage resulting from the use of the
Book-Entry System or the Depository arising by reason of any negligence,
misfeasance or misconduct on the part of the Bank or any of its employees or
agents.
If a Series requires the Bank to take any action with respect to
Securities, which action involves the payment of money or which action may, in
the opinion of the Bank, result in the Bank or its nominee assigned to such
Series being liable for the payment of money or incurring liability of some
other form, such Series, as a prerequisite to requiring the Bank to take such
action, shall, prior to the Bank taking such action, provide indemnity in
writing to the Bank in an amount and form satisfactory to it.
-7-
10.2 LIMIT OF DUTIES. Without limiting the generality of the foregoing,
the Bank shall be under no duty or obligation to inquire into, and shall not be
liable for:
10.2.1 The validity of the issue of any Securities purchased
by any Series, the legality of the purchase thereof, the permissibility of the
purchase thereof under the Company's governing documents, or the propriety of
the amount paid therefor;
10.2.2 The legality of the sale of any Securities by any
Series, the permissibility of such sale under the Company's governing documents,
or the propriety of the amount for which the same are sold;
10.2.3 The legality of the issue or the sale of any Shares, or
the sufficiency of the amount to be received therefor;
10.2.4 The legality of the redemption of any Shares, or the
sufficiency of the amount to be paid therefor;
10.2.5 The legality of the declaration or payment of any
dividend or other distribution of any Series;
10.2.6 The legality of any borrowing for temporary or
emergency administrative purposes.
10.3 NO LIABILITY UNTIL RECEIPT. The Bank shall not be liable for, or
considered to be the Custodian of, any money, whether or not represented by any
check, draft, or other instrument for the payment of money, received by it on
behalf of any Series until the Bank actually receives and collects such money
directly or by the final crediting of the account representing the Company's
interest in the Book-Entry System or the Depository.
10.4 COLLECTION WHERE PAYMENT REFUSED. The Bank shall not be under any
duty or obligation to take action to effect collection of any amount, if the
Securities upon which such amount is payable are in default, or if payment is
refused after due demand or presentation, unless and until (a) it shall be
directed to take such action by Written Instructions and (b) it shall be assured
to its satisfaction of reimbursement of its costs and expenses in connection
with any such action.
10.5 APPOINTMENT OF AGENTS AND SUB-CUSTODIANS. The Bank may appoint one
or more banking institutions, including but not limited to banking institutions
located in foreign countries, to act as Depository or Depositories or as
Sub-Custodian or as Sub-Custodians of Securities and moneys at any time owned by
any Series, upon terms and conditions specified in Written Instructions. The
Bank shall use reasonable care in selecting a Depository and/or Sub-Custodian
located in a country other than the United States ("Foreign Sub-Custodian"), and
shall oversee the maintenance of any Securities or moneys of the Company by any
Foreign Sub-Custodian.
10.6 NO DUTY TO ASCERTAIN AUTHORITY. The Bank shall not be under any
duty or obligation to ascertain whether any Securities at any time delivered to
or held by it for the Company and specifically allocated to a Series are such as
may properly be held by the Series and specifically allocated to such Series
under the provisions of the Declaration of Company and the Series' Prospectus.
10.7 RELIANCE ON CERTIFICATES AND INSTRUCTIONS. The Bank shall be
entitled to rely upon any Written Instructions or Oral Instructions actually
received by the Bank pursuant to the applicable Sections of this Agreement and
reasonably believed by the Bank to be genuine and to be given by an Authorized
Person. The Company agrees to forward to the Bank Written Instructions from an
Authorized Person confirming such Oral Instructions in such manner so that such
Written Instructions are received by the Bank, whether by hand delivery, telex,
or otherwise, by the close of business on the same day that such Oral
Instructions are given to the Bank. The Company agrees that if such confirming
instructions are not received by the Bank that it shall in no way affect the
validity for the transactions or enforceability of the transactions hereby
authorized by the Company. The Company agrees that the Bank shall incur no
liability to the Company in acting upon Oral Instructions given to the Bank
hereunder concerning such transactions provided such instructions reasonably
appear to have been received from a duly Authorized Person.
-8-
10.8 INSPECTION OF BOOKS AND RECORDS. The books and records of the Bank
regarding the Company shall be open to inspection and audit at reasonable times
by officers and auditors employed by the Company and by employees of the
Securities and Exchange Commission. The Bank shall provide the Company, upon
request, with any report obtained by the Bank on the system of internal
accounting control of the Book-Entry System or the Depository and with such
reports on its own systems of internal accounting control as the Company may
reasonably request from time-to-time. Provided, however, that in the event that
the Company shall require a report of internal accounting control produced by
the auditors of the Series rather than of the Bank, then such report shall be
prepared at the expense of the Series, and the Series agrees to pay for the time
expended by Bank on such audit and report at the hourly rate set forth on the
Fee agreement.
11. TERM AND TERMINATION.
11.1 This Agreement shall become effective on the date first set forth
above (the "Effective Date") and shall continue in effect thereafter as the
parties may mutually agree.
11.2 Either of the parties hereto may terminate this Agreement with
respect to any Series by giving to the other party a notice in writing
specifying the date of such termination, which shall be not less than 90 days
after the date of receipt of such notice. In the event such notice is given by
the Company, it shall designate a Successor Custodian or Custodians, which shall
be a person qualified to so act under the 1940 Act. In the event such notice is
given by the Bank, the Company shall, on or before the termination date, deliver
to the Bank Written Instructions designating a Successor Custodian or
Custodians. In the absence of such designation by the Company, the Bank may
designate a Successor Custodian, which shall be a person qualified to so act
under the 0000 Xxx. If the Company fails to designate a Successor Custodian for
any Series, the Company shall upon the date specified in the notice of
termination of this Agreement and upon the delivery by the Bank of all
Securities (other than Securities held in the Book-Entry Systems which cannot be
delivered to the Company) and moneys then owned by such Series, be deemed to be
its own Custodian, and the Bank shall thereby be relieved of all duties and
responsibilities pursuant to this Agreement, other than the duty with respect to
Securities held in the Book-Entry system which cannot be delivered to the
Company.
11.3 Upon the date set forth in such notice under paragraph (b) of this
Section, this Agreement shall terminate to the extent specified in such notice,
and the Bank shall upon receipt of a notice of acceptance by the Successor
Custodian on that date deliver directly to the Successor Custodian all
Securities and moneys then held by the Bank and specifically allocated to the
Series or Series specified, after deducting all fees, expenses and other amounts
for the payment or reimbursement of which it shall then be entitled with respect
to such Series or Series.
12. ADDITIONAL SERVICES BY BANK.
12.1 If allowed by the prospectus, Investment Adviser may direct that
the assets of any Series be invested in deposits in Bank or its affiliates
bearing a reasonable rate of interest.
12.2 OTHER BANK SERVICES. Any Authorized Person may direct Bank to
utilize other services or facilities provided by UnionBanCal Corporation
("UBCC"), its subsidiaries or affiliates including Bank. Such services shall
include, but not be limited to (1) the placing of orders for the purchase, sale
exchange, investment or reinvestment of Securities through any brokerage service
conducted by, or (2) the purchase of units of any investment company managed or
advised by Bank, UBCC, or their subsidiaries or affiliates and/or for which
Bank, UBCC, or their subsidiaries or affiliates act as Custodian or provide
investment advice or other services for a fee, including, without limitation,
the HighMark Funds. Company hereby acknowledges that Bank, UBCC or their
subsidiaries or affiliates will receive fees for such services in addition to
the fees payable under this Agreement. Fee Schedules for such additional
directed services shall be delivered to the Authorized Person before provision
of such services.
13. MISCELLANEOUS.
13.1 Annexed hereto as Schedule A is a certification signed by two of
the present Directors of the Company setting forth the names and the signatures
of the present Authorized Persons. The Company agrees to furnish to the Bank a
new certification in similar form in the event that any such present Authorized
Person ceases to be such an Authorized Person or in the event that other or
additional Authorized Persons are elected or appointed. Until such new
certification shall be received, the Bank shall be fully protected in acting
under the provisions of this Agreement upon Oral Instructions or signatures of
the present Authorized Persons as set forth in the last delivered certification.
-9-
13.2 Annexed hereto as Schedule D is a certification signed by two of
the present Directors of the Company setting forth the names and the signatures
of the present Directors of the Company. The Company agrees to furnish to the
Bank a new certification in similar form in the event any such present Director
ceases to be a Director of the Company or in the event that other or additional
Directors are elected or appointed. Until such new certification shall be
received, the Bank shall be fully protected in acting under the provisions of
this Agreement upon the signature of the officers as set forth in the last
delivered certification.
13.3 Any notice or other instrument in writing, authorized or required
by this Agreement to be given to the Bank, shall be sufficiently given if
addressed to the Bank and mailed or delivered to it at its offices at:
Union Bank of California, N.A.
Mutual Fund Services Dept., Company Group
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
or such other place as the Bank may from time-to-time designate in writing.
13.4 Any notice or other instrument in writing, authorized or required
by this Agreement to be given to the Company, shall be sufficiently given if
addressed to the Company and mailed or delivered to it at its offices at 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or at such other place as the Company may
from time-to-time designate in writing.
13.5 This Agreement may not be amended or modified in any manner except
by a written agreement executed by both parties with the same formality as this
Agreement, and as may be permitted or required by the 0000 Xxx.
13.6 This Agreement shall extend to and shall be binding upon the
parties hereto, and their respective successors and assigns; provided, however,
that this Agreement shall not be assignable by the Company without the written
consent of the Bank, or by the Bank without the written consent of the Company
authorized or approved by a resolution of the Board of Directors of the Company,
and any attempted assignment without such written consent shall be null and
void.
13.7 This Agreement shall be construed in accordance with the laws of
the State of California.
13.8 It is expressly agreed to that the obligations of the Company
hereunder shall not be binding upon any of the Directors, shareholders,
nominees, officers, agents, or employees of the Company, personally, but bind
only the property of the Company, as provided in the Declaration of Company of
the Company. The execution and delivery of this Agreement have been authorized
by the Directors of the Company and signed by an authorized officer of the
Company, acting as such, and neither such authorization by such Directors nor
such execution and delivery by such officer shall be deemed to have been made by
any of them individually or to impose any liability on any of them personally,
but shall bind only the Company property of the Company as provided in its
Declaration of Company.
13.9 The captions of the Agreement are included for convenience of
reference only and in no way define or delimit any of the provisions hereof or
otherwise affect their construction or effect.
13.10 This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original, but such counterparts shall,
together, constitute only one instrument.
-10-
14. DISPUTE RESOLUTION PROVISION
14.1 Jury Waiver. The parties hereby waive their respective rights to a
jury trial in any litigation arising out of or relating to this Agreement or any
related agreements or instruments, including without limitation any claim based
on or arising out of an alleged tort.
14.2 Judicial Reference. If any such litigation is commenced in a
California state court, any party may also elect to have all decisions of fact
and law determined by a referee appointed by the court in accordance with
applicable state reference procedures. The referee shall be a retired judge,
agreed upon by the parties, from either the American Arbitration Association
(AAA) or J.A.M.S./Endispute, Inc. (JAMS). If the parties cannot agree, the party
who initially selected the reference procedure shall request a panel of ten
retired judges from either AAA or JAMS and the court shall select the referee
from that panel. The costs of the reference procedure, including the fee for the
court reporter, shall be borne equally by all parties as the costs are incurred.
The Referee shall hear all pre-trial and post-trial matters, including requests
for equitable relief, conduct a non-jury trial, prepare an award with written
findings of fact and conclusions of law, and award attorney fees and costs to
the prevailing party. Judgment upon the award shall be entered in the court in
which such proceeding was commenced and all parties shall have full rights of
appeal.
15. MERGER OR CONSOLIDATION OF BANK.
Any corporation or association (i) into which the Bank may be merged or
with which it may be consolidated, (ii) resulting from any merger,
consolidation, or reorganization to which the Bank may be a party, or (iii) to
which all or substantially all of the fiduciary business of the Bank may be
transferred shall become a Successor Custodian under this Agreement without the
necessity of executing any instrument or performing any further act subject to
the provision of this Agreement concerning resignation or removal of the
Custodian.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunder duly authorized as of the day
and year first above written.
INVESTA MANAGEMENT CO., INC. UNION BANK OF CALIFORNIA, N.A.
BY: BY:
-------------------- -----------------------
Xxxxx X. Xxxxxxx ,Vice President
DATE: DATE:
------------------ ---------------------
-11-
Schedule A
Authorized Persons
Part I - Access Persons of Bank
Part II - Authorized Persons of the Company
Part III - Directors
INVESTA MANAGEMENT CO., INC.
BY:
---------------------
Xxxxx X. Xxxxxxx
DATE:
-------------------
UNION BANK OF CALIFORNIA, N.A.
BY:
---------------------
,Vice President
DATE:
-------------------
-12-
Schedule B - Funds
1. Super Index Fund
2. InvestmentWizard Fund
INVESTA MANAGEMENT CO., INC.
BY:
---------------------
Xxxxx X. Xxxxxxx
DATE:
-------------------
UNION BANK OF CALIFORNIA, N.A.
BY:
---------------------
,Vice President
DATE:
-------------------
-13-
Schedule C
Mutual Fund Services
Schedule of Fees
Custody
Transactions*
Depository Eligible $
Depository Ineligible $
Disbursements $
Minimum Fee $
*A transaction is defined as any activity affecting assets, such as purchase,
sale tender offer, stock dividend, free deliveries, maturity, exchange,
redemption, etc. Fees for foreign securities, foreign exchange transactions,
international wires and nonstandard services are quoted separately.
INVESTA MANAGEMENT CO., INC.
BY:
---------------------
Xxxxx X. Xxxxxxx
DATE:
-------------------
UNION BANK OF CALIFORNIA, N.A.
BY:
---------------------
,Vice President
DATE:
-------------------
-14-
Schedule D
Certification
Names and Signatures of Current Directors
--------------------- -------------------------
Xxxxx X. Xxxxxxx (Signature of Director)
--------------------- -------------------------
Xxxxxxx Xxxxx (Signature of Director)
--------------------- -------------------------
Xxxxxx Xxxxx (Signature of Director)
--------------------- -------------------------
Xxxxxx Xxxxxxxx (Signature of Director)
--------------------- -------------------------
Xxxxxxx Xxxxxx (Signature of Director)
-15-
