Exhibit (g)(6)
CUSTODY AGREEMENT
This Agreement is entered into as of ____________, 2001 between the
Variable Insurance Funds, (the "Trust"), a Massachusetts business trust, having
its principal office and place of business at 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx
00000 and Branch Banking and Trust Company, (the "Bank"), a North Carolina
banking association with its principal place of business at 000 Xxxxxxxxxxxx
Xxxxxx Xxxx, Xxxxxxx, Xxxxx Xxxxxxxx 00000.
In consideration of the mutual promises set forth below, the Trust 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 Trust, or any other person, including persons
employed by the Investment Manager, whether or not any such person is an officer
of the Trust, duly authorized by the Board of Trustees of the Trust to give Oral
Instructions and Written Instructions on behalf of the Trust and listed in
Schedule C, Part II or such other certification as may be received by the Bank
from time to time.
1.2 "Book-Entry System" shall mean any person who meets the
qualifications of Rule 17f-4(b)(2) under the Investment Company Act of 1940 (the
"1940 Act") or any book-entry system that meets the requirements of the 1940 Act
and the rules thereunder.
1.3 "Declaration of Trust" shall mean the Declaration of Trust of the
Trust as now in effect and as the same may be amended from time to time.
1.4 "Depository" shall mean any person who meets the qualifications of
Rule 17f-4(b)(1) under the 1940 Act or any securities depository that meets the
requirements of the 1940 Act and the rules thereunder.
1.5 "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 Trusts on the
same day as such purchase or sale.
1.6 "Prospectus" shall mean the Series' current prospectuses and
statement of additional information relating to the registration of the Series'
Shares under the Securities Act of 1933, as amended.
1.7 "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.
1.8 "Shares" refers to the shares of beneficial interest of a Series
of the Trust.
1.9 "Series" refers to Trusts shown on Schedule A, 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 Trust.
1.10 "Transfer Agent" shall mean the person which performs the
transfer agent, dividend disbursing agent and shareholder servicing agent
functions for the Trust.
1.11 "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.
1.12 The "1940 Act" refers to the 1940 Act, as well as the rules and
regulations thereunder, all as amended from time to time.
2. Appointment of Custodian.
2.1 The Trust hereby constitutes and appoints the Bank as custodian of
all the securities and moneys owned by or in the possession of the Trust during
the period of this Agreement.
2.2 The Bank hereby accepts appointment as custodian for the Trust and
agrees to perform the duties thereof as hereinafter set forth.
3. Compensation.
3.1 The Trust 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 B 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 Trust, which shall be attached to
Schedule B 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 Trust. Any such increase shall take effect upon approval of the Board of
Trustees of the Trust.
3.4 The Bank will xxxx the Trust as soon as practicable after the end
of the month, and said xxxxxxxx will be detailed in accordance with the Fee
Schedule. The Trust will pay to the Bank the amount of such billing within 45
days after receipt. In the event such xxxx is not promptly paid, the Bank may
charge against any money specifically allocated to the Trust 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 Trust the amount of any loss,
damage, liability or expense incurred with respect to such Trust, including
counsel fees, for which it shall be entitled to reimbursement under provision
10.4 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 Birmingham or New York
City involving the purchase and sale of Securities of the Trust.
4. Custody of Cash and Securities.
4.1 Receipt and Holding of Assets. The Trust will deliver or cause to
be delivered to the Bank all securities and moneys owned by it, including cash
received from the issuances 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 Trust 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 Trust 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.
4.2 Accounts and Disbursement. 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 Trust 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
Trust, Bank shall provide within 5 business days of such written request a copy
of any confirmations which include transactions of the Trust. 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. At
least monthly, the Bank shall furnish the Trust 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
Trust 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.
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 Trust and the
Bank;
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 Trust 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 Trust 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 Trust or to a Series for
any loss by a Series for any missed payment or other default resulting therefrom
unless the Bank received timely general notification, which shall not be less
than 5 business days, from the Trust 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 Trust or a Series for the accuracy or completeness of any notification
the Bank shall provide to the Trust 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
Trust 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 Trust;
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 Trust 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;
4.6.10 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 Trustees signed
by an Authorized Person and certified by the Secretary or Assistant Secretary of
the Trust, 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 Trust
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 Trust
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
Trust 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 reasonably 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 Trust shall furnish to the Bank the resolution of the Board of
Trustees of the Trust 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.
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 Trust.
7. Sale and Redemption of Shares of a Series.
7.1 Whenever the Trust shall sell or redeem any Shares of a Series,
the Trust shall deliver or cause to be delivered to the Bank Written
Instructions duly specifying:
7.1.1 The name of the Series whose Shares were sold or redeemed;
7.1.2 The number of Shares sold or redeemed, trade date, and
price; and
7.1.3 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 Trust will cause to be delivered to the Bank by any bank
(excluding the Bank) from which the Trust 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 Trust against
delivery of a stated amount of collateral. The Trust 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
Trust, 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 Trust 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 Trust 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 Trust 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 Trust 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.
9. Persons Having Access to Assets of the Series.
9.1 No Trustee, officer, employee or agent of the Trust, and no
officer, director, employee or agent of the Advisor, shall have physical access
to the assets of the Trust held by the Bank or be authorized or permitted to
withdraw any investments of the Trust, nor shall the Bank deliver any assets of
the Trust to any such person. No officer, director, employee or agent of the
Bank who holds any similar position with the Trust, the Advisor shall have
access to the assets of the Trust.
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 Trust are
listed on Schedule C, Part I, which is attached and made a part of this
Agreement by this reference. The Bank shall advise the Trust of any change in
the individuals authorized to have access to the assets of the Trust by written
notice to the Trust.
9.3 Nothing in this Section 9 shall prohibit any officer, employee or
agent of the Trust, 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 Trust 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 Trust. 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
Trustees pursuant to the Declaration of Trust 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 shall either be counsel for the Trust, or other counsel selected by
the Bank with expertise in the 1940 Act) 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 Trust, the Bank shall advise the Trust 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, willful misconduct, or negligent or willful
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 Trust 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 negligence or bad faith. Notwithstanding the foregoing the
Bank shall be liable to the Trust 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 reasonably satisfactory to it.
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 Trust'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 Trust'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
propriety 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 Trust'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. In its discretion, the
Custodian may appoint, and at any time remove, any person who has been approved
by the Board of Trustees and is qualified to act as a custodian under the 1940
Act, as sub-custodian, to hold Securities and cash of the Trusts and to carry
out such other provisions of this Agreement as the Custodian may determine, and
the Custodian may also open and maintain one or more accounts with such person
(any such accounts to be in the name of the Custodian on behalf of its customers
and subject only to its draft or order pursuant to the terms of this Agreement),
provided, however, that the appointment of any such person hereunder shall not
relieve the Custodian of any of its obligations or liabilities under this
Agreement.
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 Trust 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 Trust 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 Trust 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 Trust agrees that the fact that such
confirming instructions are not received by the Bank shall in no way affect the
validity for the transactions or enforceability of the transactions hereby
authorized by the Trust. The Trust agrees that the Bank shall incur no liability
to the Trust 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.
10.8 Inspection of Books and Records. The books and records of the
Bank regarding the Trust shall be open to inspection and audit at reasonable
times by officers and auditors employed by the Trust and by employees of the
Securities and Exchange Commission. The Bank shall provide the Trust, 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 Trust may
reasonably request from time to time. Provided, however, that in the event that
the Trust 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 The Bank may terminate this Agreement with respect to the Trust
and the Trust 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 Trust, 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 Trust 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 Trust, the Bank may designate a successor Custodian, which
shall be a person qualified to so act under the 0000 Xxx. If the Trust fails to
designate a successor Custodian for any Series, the Trust 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 Trust) 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 Trust.
11.3 Upon the date set forth in such notice under paragraph (2) 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 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.
12. Additional Services by Bank.
12.1 If allowed by the prospectus, the investment adviser of each
Series may direct that the assets of that Series be invested in deposits in the
Bank or its affiliates bearing a reasonable rate of interest.
12.2 Other Bank Services. Any authorized person may direct the Bank to
utilize other services or facilities provided by the Bank or its affiliates.
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 the Bank or its affiliates, or (2) the
purchase of units of any investment company managed or advised by the Bank or
its affiliates and/or for which the Bank or its affiliates act as custodian or
provide investment advice or other services for a fee. The Trust hereby
acknowledges that the Bank or its 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 is Schedule C, Part II setting forth the names of
the present Authorized Persons. The Trust 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.
13.2 Annexed hereto is Schedule C, Part III setting forth the names of
the present Trustees of the Trust. The Trust agrees to furnish to the Bank a new
certification in similar form in the event any such present Trustee ceases to be
a Trustee of the Trust or in the event that other or additional Trustees 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:
Branch Banking and Trust Company
000 Xxxxxxxxxxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxx Xxxxxxxx 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 Trust, shall be sufficiently given if
addressed to the Trust and mailed or delivered to it at its offices at 0000
Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000 or at such other place as the Trust 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 Trust without the written
consent of the Bank, or by the Bank without the written consent of the Trust
authorized or approved by a resolution of the Board of Trustees of the Trust,
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 Massachusetts.
13.8 It is expressly agreed to that the obligations of the Trust
hereunder shall not be binding upon any of the Trustees, shareholders, nominees,
officers, agents, or employees of the Trust, personally, but bind only the
property of the Trust, as provided in the Declaration of Trust of the Trust. The
execution and delivery of this Agreement have been authorized by the Trustees of
the Trust and signed by an authorized officer of the Trust, acting as such, and
neither such authorization by such Trustees 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 trust
property of the Trust as provided in its Declaration of Trust.
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.
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.
Variable Insurance Funds
By: _______________________________
Title: ___________________________
Branch Banking and Trust Company
By: ______________________________
Title: ___________________________
Dated:
SCHEDULE A
TO THE CUSTODY AGREEMENT
BETWEEN
VARIABLE INSURANCE FUNDS
AND
BRANCH BANKING AND TRUST COMPANY
DATED__________________
VARIABLE INSURANCE FUNDS
By: _______________________________
Title: ____________________________
BRANCH BANKING AND TRUST COMPANY
By: _______________________________
Title: ____________________________
Dated:
SCHEDULE B
TO THE CUSTODY AGREEMENT
BETWEEN
VARIABLE INSURANCE FUNDS
AND
BRANCH BANKING AND TRUST COMPANY
DATED ___________________
Mutual Fund Services
Schedule of Fees
For custody services the Bank will charge hereunder a fee equal to
2.00 b.p. (.02%) of net asset value per annum. This charge will continue in
effect until a modification of this Schedule B is mutually agreed upon.
VARIABLE INSURANCE FUNDS
By: __________________________
Title: _______________________
BRANCH BANKING AND TRUST COMPANY
By: __________________________
Title: _______________________
Dated:
SCHEDULE C
TO THE CUSTODY AGREEMENT
BETWEEN
VARIABLE INSURANCE FUNDS
AND
BRANCH BANKING AND TRUST COMPANY
DATED __________________
Part I - Access Persons of Bank
Refer to the current resolution of the Board of Trustees of the Trust
Part II - Authorized Persons of the Trust
Refer to the current resolution of the Board of Trustees of the Trust
Part III - Trustees
Xxxxxx X. Xxxxx
Xxxxxxx Xxx Xxxxxxx
Xxxxx X. Xxxxxxxx
VARIABLE INSURANCE FUNDS BRANCH BANKING AND TRUST COMPANY
By: __________________________ By: __________________________
Title: _______________________ Title: _______________________
