EXHIBIT 8(d)
FORM OF
CUSTODY AGREEMENT
Dated _______________________ , 199_
Between
UMB BANK, N.A.
and
JANUS ASPEN SERIES
on behalf of
Money Market Portfolio
0397X
Table of Contents
SECTION PAGE
1. Appointment of Custodian 1
2. Definitions 1
(a) Securities 1
(b) Asset 1
(c) Instructions and Special Instructions 2
3. Delivery of Corporate Documents 2
4. Powers and Duties of Custodian and Domestic Subcustodian 3
(a) Safekeeping 3
(b) Manner of Holding Securities 4
(c) Free Delivery of Assets 6
(d) Exchange of Securities 6
(e) Purchases of Assets 6
(f) Sales of Assets 7
(g) Options 8
(h) Futures Contracts 9
(i) Segregated Accounts 9
(j) Depositary Receipts 10
(k) Corporate Actions, Put Bonds, Called Bonds, Etc. 10
(1) Interest Bearing Deposits 11
(m) Foreign Exchange Transactions Other than as Principal 11
(n) Pledges or Loans of Securities 12
(o) Stock Dividends, Rights, Etc. 13
(p) Routine Dealings 13
(q) Collections 13
(r) Deposit Accounts 14
(s) Dividends, Distributions and Redemptions 14
(t) Shares of a Fund purchased by such Fund 14
(u) Shares of a Fund purchased from such Fund 15
(v) Proxies and Notices; Compliance with the Shareholders 15
Communication Act of 1985
(w) Books and Records 15
(x) Opinion of Trust's Independent Certified Public Accountants 16
(y) Reports by Independent Certified Public Accountants 16
(z) Bills and Others Disbursements 16
5. Subcustodians 16
(a) Domestic Subcustodians 16
(b) Special Subcustodians 17
(c) Supervision of a Subcustodian 17
(d) Termination of a Subcustodian 17
6. Standard of Care 18
(a) General Standard of Care 18
(b) Actions Prohibited by Applicable Law, Events Beyond 18
Custodian's Control, Armed Conflict, Sovereign Risk, Etc.
(c) Mitigation by Custodian 18
(d) Liability for Past Records 19
(e) Advice of Counsel 19
(f) Advice of the Fund and Others 19
(g) Instructions Appearing to be Genuine 19
(h) Exceptions from Liability 19
7. Liability of the Custodian for Actions of Others 20
(a) Domestic Subcustodians 20
(b) Securities Systems, Interim Subcustodians, 20
Special Subcustodians,
Securities Depositories and Clearing Agencies
(c) Defaults or Insolvencies of Brokers, Banks, Etc. 20
(d) Reimbursement of Expenses 21
8. Indemnification 21
(a) Indemnification by Fund 21
(b) Indemnification by Custodian 21
9. Advances 21
10. Security for Obligation to Custodian 22
11. Compensation 23
12. Powers of Attorney 23
13. Termination and Assignment 23
14. Additional Funds 24
15. Notices 24
16. Miscellaneous 24
CUSTODY AGREEMENT
This agreement made as of this ____ day of _______________, 199_, between
UMB Bank, N.A., a national banking association with its principal place of
business located at Kansas City, Missouri (hereinafter "Custodian"), and Janus
Aspen Series (the "Trust") on behalf of each of the Funds set forth on Appendix
B hereto, together with such additional Funds which shall from time to time be
made parties to this Agreement in the manner set forth herein (individually, a
"Fund" and collectively, the "Funds").
WITNESSETH:
WHEREAS, each Fund is a separate series of the Trust representing shares of
beneficial interest in a separate portfolio of assets, and
WHEREAS, the Trust is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended; and
WHEREAS, each Fund desires to appoint Custodian as its custodian for the
custody of Assets (as hereinafter defined) owned by such Fund which Assets are
to be held in such accounts as such Fund may establish from time to time; and
WHEREAS, Custodian is willing to accept such appointment on the terms and
conditions hereof.
NOW THEREFORE, in consideration of the mutual promises contained herein,
the parties hereto, intending to be legally bound, mutually covenant and agree
as follows:
1. APPOINTMENT OF CUSTODIAN.
Each Fund hereby and appoints the Custodian as custodian of Assets
belonging to each such Fund which have been or may be from time to time
deposited with the Custodian. Custodian accepts such appointment as a custodian
and agrees to perform the duties and responsibilities of Custodian as set forth
herein on the conditions set forth herein.
2. DEFINITIONS.
For purposes of this Agreement, the following terms shall have the meanings
so indicated:
(a) "Security" or "Securities" shall mean stocks, bonds, bills,
rights, script, warrants, interim certificates and all negotiable or
nonnegotiable paper commonly known as Securities and other instruments or
obligations.
(b) "Assets" shall mean Securities, monies and other property held by
the Custodian for the benefit of a Fund.
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(c)(l) "Instructions", as used herein, shall mean: (i) a tested telex,
a written (including, without limitation, facsimile transmission) request,
direction, instruction or certification signed or initialed by or on behalf
of a Fund by an Authorized Person (as hereinafter defined); (ii) a
telephonic or other oral communication from a person the Custodian
reasonably believes to be an Authorized Person; or (iii) a communication
effected directly between an electro-mechanical or electronic device or
system (including, without limitation, computers) on behalf of a Fund.
Instructions in the form of oral communications shall be confirmed by the
appropriate Fund by tested telex or in writing in the manner set forth in
clause (i) above, but the lack of such confirmation shall in no way affect
any action taken by the Custodian in reliance upon oral Instructions which
it reasonably believes to be genuine prior to the Custodian's receipt of
such confirmation. Each Fund authorizes the Custodian to record any and all
telephonic or other oral Instructions communicated to the Custodian.
(2) "Special Instructions", as used herein, shall mean Instructions
countersigned or confirmed in writing by the Treasurer or any Assistant
Treasurer of a Fund or any other person designated by the Treasurer of such
Fund in writing, which countersignature or confirmation shall be included
on the same instrument containing the Instructions or on a separate
instrument relating thereto.
(3) Instructions and Special Instructions shall be delivered to the
Custodian at the address and/or telephone, facsimile transmission or telex
number agreed upon from time to time by the Custodian and the Funds.
(4) Where appropriate, Instructions and Special Instructions shall be
continuing instructions.
3. DELIVERY OF CORPORATE DOCUMENTS.
Each of the parties to this Agreement represents that its execution does
not violate any of the provisions of its respective charter, articles of
incorporation, articles of association or bylaws and all required corporate
action to authorize the execution and delivery of this Agreement has been taken.
Each Fund has furnished the Custodian with copies, properly certified or
authenticated, with all amendments or supplements thereto, of the following
documents:
(a) Certificate of Incorporation (or equivalent document) of the Trust
as in effect on the date hereof;
(b) By-Laws of the Trust as in effect on the date hereof;
(c) Resolutions of the Trustees of the Trust appointing the Custodian
and approving the form of this Agreement; and
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(d) Each Fund's current prospectus and statements of additional
information.
The Trust or a Fund, as appropriate, shall promptly furnish the
Custodian with copies of any updates, amendments or supplements to the
foregoing documents.
In addition, the Trust has delivered or will promptly deliver to the
Custodian, copies of the Resolution(s) of its Trustees and all amendments or
supplements thereto, properly certified or authenticated, designating certain
officers or employees of each such Fund who will have continuing authority to
certify to the Custodian: (a) the names, titles, signatures and scope of
authority of all officers and employees authorized to give Instructions or any
other notice, request, direction, instruction, certificate or instrument on
behalf of each Fund, and (b) the names, titles and signatures of those persons
authorized to countersign or confirm Special Instructions on behalf of each Fund
(in both cases collectively, the "Authorized Persons" and individually, an
"Authorized Person"). Such Resolutions and certificates may be accepted and
relied upon by the Custodian as conclusive evidence of the facts set forth
therein and shall be considered to be in full force and effect until delivery to
the Custodian of a similar Resolution or certificate to the contrary. Upon
delivery of a certificate which deletes or does not include the name(s) of a
person previously authorized to give Instructions or to countersign or confirm
Special Instructions, such persons shall no longer be considered an Authorized
Person. Unless the resolution and certificate specifically limit the authority
of an Authorized Person to specific matters or requires that the approval of
anyone else will first have been obtained, the Custodian will be under no
obligation to inquire into the right of the person giving such Instructions or
Special Instructions to do so. Notwithstanding any of the foregoing, no
Instructions or Special Instructions received by the Custodian from a Fund will
be deemed to authorize or permit any director, trustee, officer, employee, or
agent of such Fund to withdraw any of the Assets of such Fund upon the mere
receipt of such authorization, Special Instructions or Instructions from such
director, trustee, officer, employee or agent.
4. POWERS AND DUTIES OF CUSTODIAN AND DOMESTIC
SUBCUSTODIAN.
Except for Assets held by any Subcustodian appointed pursuant to Section
5(b) of this Agreement, the Custodian shall have and perform the powers and
duties hereinafter set forth in this Section 4. For purposes of this Section 4
all references to powers and duties of the "Custodian" shall also refer to any
Domestic Subcustodian appointed pursuant to Section 5(a).
(a) Safekeeping.
The Custodian will keep safely the Assets of each Fund which are
delivered to it from time to time. The Custodian shall not be responsible
for any property of a Fund held or received by such Fund and not delivered
to the Custodian.
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(b) Manner of Holding Securities.
(1) The Custodian shall at all times hold Securities of each Fund
either: (i) by physical possession of the share certificates or other
instruments representing such Securities in registered or bearer form; or
(ii) in book-entry form by a Securities System (as hereinafter defined) in
accordance with the provisions of subparagraph (3) below.
(2) The Custodian may hold registrable portfolio Securities which have
been delivered to it in physical form, by registering the same in the name
of the appropriate Fund or its nominee, or in the name of the Custodian or
its nominee, for whose actions such Fund and Custodian, respectively, shall
be fully responsible. Upon the receipt of Instructions, the Custodian shall
hold such Securities in street certificate form, so called, with or without
any indication of fiduciary capacity. However, unless it receives
Instructions to the contrary, the Custodian will register all such
portfolio Securities in the name of the Custodian's authorized nominee. All
such Securities shall be held in an account of the Custodian containing
only assets of the appropriate Fund or only assets held by the Custodian as
a fiduciary, provided that the records of the Custodian shall indicate at
all times the Fund or other customer for which such Securities are held in
such accounts and the respective interests therein.
(3) The Custodian may deposit and/or maintain domestic Securities
owned by a Fund in, and each Fund hereby approves use of: (a) The
Depository Trust Company; (b) The Participants Trust Company; and (c) any
book-entry system as provided in (i) Subpart O of Treasury Circular Xx.
000, 00 XXX 306.115, (ii) Subpart B of Treasury Circular Public Debt Series
Xx. 00-00, 00 XXX 350.2, or (iii) the book-entry regulations of federal
agencies substantially in the form of 31 CFR 306.115. Upon the receipt of
Special Instructions, the Custodian may deposit and/or maintain domestic
Securities owned by a Fund in any other domestic clearing agency registered
with the Securities and Exchange Commission ("SEC") under Section 17A of
the Securities Exchange Act of 1934 (or as may otherwise be authorized by
the SEC to serve in the capacity of depository or clearing agent for the
Securities or other assets of investment companies) which acts as a
Securities depository. Each of the foregoing shall be referred to in this
Agreement as a "Securities System", and all such Securities Systems shall
be listed on the attached Appendix A. Use of a Securities System shall be
in accordance with applicable Federal Reserve Board and SEC rules and
regulations, if any, and subject to the following provisions:
(i) The Custodian may deposit the Securities directly or through
one or more agents or Subcustodians which are also qualified
to act as custodians for investment companies.
(ii) The Custodian shall deposit and/or maintain the Securities
in a Securities System, provided that such Securities are
represented in an account ("Account") of the Custodian in
the Securities System that includes only assets held by the
Custodian as a fiduciary, custodian or otherwise for
customers.
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(iii) The books and records of the Custodian shall at all times
identify those Securities belonging to any one or more Funds
which are maintained in a Securities System.
(iv) The Custodian shall pay for Securities purchased for the
account of a Fund only upon (a) receipt of advice from the
Securities System that such Securities have been transferred
to the Account of the Custodian in accordance with the rules
of the Securities System, and (b) the making of an entry on
the records of the Custodian to reflect such payment and
transfer for the account of such Fund. The Custodian shall
transfer Securities sold for the account of a Fund only upon
(a) receipt of advice from the Securities System that
payment for such Securities has been transferred to the
Account of the Custodian in accordance with the rules of the
Securities System, and (b) the making of an entry on the
records of the Custodian to reflect such payment and
transfer for the account of such Fund. The Custodian shall
transfer Securities sold for the account of a Fund only upon
(a) receipt of advice from the Securities System that
payment for such Securities has been transferred to the
Account of the Custodian in accordance with the rules of the
Securities System, and (b) the making of an entry on the
records of the Custodian to reflect such transfer and
payment for the account of such Fund. Copies of all advices
from the Securities System relating to transfers of
Securities for the account of a Fund shall be maintained for
such Fund by the Custodian. The Custodian shall deliver to a
Fund on the next succeeding business day daily transaction
reports which shall include each day's transactions in the
Securities System for the account of such Fund. Such
transaction reports shall be delivered to such Fund or any
agent designated by such Fund pursuant to Instructions, by
computer or in such other manner as such Fund and Custodian
may agree.
(v) The Custodian shall promptly provide the Funds with reports
obtained by the Custodian or any Subcustodian with respect
to a Securities System's accounting system, internal
accounting control and procedures for safeguarding
Securities deposited in the Securities System.
(vi) Upon receipt of Special Instructions, the Custodian shall
terminate the use of any Securities System on behalf of a
Fund as promptly as practicable and shall take all actions
reasonably practicable to safeguard the Securities of such
Fund maintained with such Securities System.
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(c) Free Delivery of Assets.
Notwithstanding any other provision of this Agreement, the
Custodian, upon receipt of Special Instructions, will undertake to
make free delivery of Assets, provided such Assets are on hand and
available, in connection with a Fund's transactions and to transfer
such Assets to such broker, dealer, Subcustodian, bank, agent,
Securities System or otherwise as specified in such Special
Instructions.
(d) Exchange of Securities.
Upon receipt of Instructions, the Custodian will exchange
portfolio Securities held by it for a Fund for other Securities or
cash paid in connection with any reorganization, recapitalization,
merger, consolidation, or conversion of convertible Securities, and
will deposit any such Securities in accordance with the terms of any
reorganization or protective plan.
Without Instructions, the Custodian is authorized to exchange
Securities held by it in temporary form for Securities in definitive
form, to surrender Securities for transfer into a name or nominee name
as permitted in Section 4(b)(2), to effect an exchange of shares in a
stock split or when the par value of the stock is changed, to sell any
fractional shares, and, upon receiving payment therefor, to surrender
bonds or other Securities held by it at maturity or call, except that
the Custodian shall not surrender any convertible security (except
mandatory conversions) held by a Fund without appropriate
Instructions.
(e) Purchases of Assets.
(1) Securities Purchases. In accordance with Instructions, the
Custodian shall, with respect to a purchase of Securities, pay
for such Securities out of monies held for a Fund's account for
which the purchase was made, but only insofar as monies are
available therein for such purpose, and receive the portfolio
Securities so purchased. Unless the Custodian has received
Special Instructions to the contrary, such payment will be made
only upon receipt of Securities by the Custodian, a clearing
corporation of a national Securities exchange of which the
Custodian is a member, or a Securities System in accordance with
the provisions of Section 4(b)(3) hereof. Notwithstanding the
foregoing, upon receipt of Instructions: (i) in connection with a
repurchase agreement, the Custodian may release funds to a
Securities System prior to the receipt of advice from the
Securities System that the Securities underlying such repurchase
agreement have been transferred by book-entry into the Account
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maintained with such Securities System by the Custodian, provided
that the Custodian's instructions to the Securities System
require that the Securities System may make payment of such funds
to the other party to the repurchase agreement only upon transfer
by book-entry of the Securities underlying the repurchase
agreement into such Account; (ii) in the case of Interest Bearing
Deposits, currency deposits, and other deposits, foreign exchange
transactions, futures contracts or options, pursuant to Sections
4(g), 4(h), 4(1), and 4(m) hereof, the Custodian may make payment
therefor before receipt of an advice of transaction; and (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 delivery thereof in accordance with such
generally accepted trade practice or the terms of the instrument
representing such Security.
(2) Other Assets Purchased. Upon receipt of Instructions and
except as otherwise provided herein, the Custodian shall pay for
and receive other Assets for the account of a Fund as provided in
Instructions.
(f) Sales of Assets.
(1) Securities Sold. In accordance with Instructions, the
Custodian will, with respect to a sale, deliver or cause to be
delivered the Securities designated as sold to the broker or
other person specified in the Instructions relating to such sale.
Unless the Custodian has received Special Instructions to the
contrary, such delivery shall be made only upon receipt of
payment therefor in the form of: (a) cash, certified check, bank
cashier's check, bank credit, or bank wire transfer; (b) credit
to the account of the Custodian with a clearing corporation of a
national Securities exchange of which the Custodian is a member;
or (c) credit to the Account of the Custodian with a Securities
System, in accordance with the provisions of Section 4(b)(3)
hereof. Notwithstanding the foregoing, Securities held in
physical form may be delivered and paid for in accordance with
"street delivery custom" to a broker or its clearing agent,
against delivery to the Custodian of a receipt for such
Securities, provided that the Custodian shall have taken
reasonable steps to ensure prompt collection of the payment for,
or return of, such Securities by the broker or its clearing
agent, and provided further that the Custodian shall not be
responsible for the selection of or the failure or inability
7
to perform of such broker or its clearing agent or for any
related loss arising from delivery or custody of such Securities
prior to receiving payment therefor.
(2) Other Assets Sold. Upon receipt of Instructions and except as
otherwise provided herein, the Custodian shall receive payment
for and deliver other Assets for the account of a Fund as
provided in Instructions.
(g) Options.
(1) Upon receipt of Instructions relating to the purchase of an
option or sale of a covered call option, the Custodian shall: (a)
receive and retain confirmations or other documents, if any,
evidencing the purchase or writing of the option by a Fund; (b)
if the transaction involves the sale of a covered call option,
deposit and maintain in a segregated account the Securities
(either physically or by book-entry in a Securities System)
subject to the covered call option written on behalf of such
Fund; and (c) pay, release and/or transfer such Securities, cash
or other Assets in accordance with any notices or other
communications evidencing the expiration, termination or exercise
of such options which are furnished to the Custodian by the
Options Clearing Corporation (the "OCC"), the securities or
options exchanges on which such options were traded, or such
other organization as may be responsible for handling such option
transactions.
(2) Upon receipt of Instructions relating to the sale of a naked
option (including stock index and commodity options), the
Custodian, the appropriate Fund and the broker-dealer shall enter
into an agreement to comply with the rules of the OCC or of any
registered national securities exchange or similar
organizations(s). Pursuant to that agreement and such Fund's
Instructions, the Custodian shall: (a) receive and retain
confirmations or other documents, if any, evidencing the writing
of the option; (b) deposit and maintain in a segregated account,
Securities (either physically or by book-entry in a Securities
System), cash and/or other Assets; and (c) pay, release and/or
transfer such Securities, cash or other Assets in accordance with
any such agreement and with any notices or other communications
evidencing the expiration, termination or exercise of such option
which are furnished to the Custodian by the OCC, the securities
or options exchanges on which such options were traded, or such
other organization as may be responsible for handling such option
transactions.
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(3) The appropriate Fund and the broker-dealer shall be
responsible for determining the quality and quantity of assets
held in any segregated account established in compliance with
applicable margin maintenance requirements and the performance of
other terms of any option contract.
(h) Futures Contracts.
Upon receipt of Instructions, the Custodian shall enter into a
futures margin procedural agreement among the appropriate Fund, the
Custodian and the designated futures commission merchant (a
"Procedural Agreement"). Under the Procedural Agreement the Custodian
shall: (a) receive and retain confirmations, if any, evidencing the
purchase or sale of a futures contract or an option on a futures
contract by such Fund; (b) deposit and maintain in a segregated
account cash, Securities and/or other Assets designated as initial,
maintenance or variation "margin" deposits intended to secure such
Fund's performance of its obligations under any futures contracts
purchased or sold, or any options on futures contracts written by such
Fund, in accordance with the provisions of any Procedural Agreement
designed to comply with the provisions of the Commodity Futures
Trading Commission and/or any commodity exchange or contract market
(such as the Chicago Board of Trade), or any similar organization(s),
regarding such margin deposits; and (c) release Assets from and/or
transfer Assets into such margin accounts only in accordance with any
such Procedural Agreements. The appropriate Fund and such futures
commission merchant shall be responsible for determining the type and
amount of Assets held in the segregated account or paid to the
broker-dealer in compliance with applicable margin maintenance
requirements and the performance of any futures contract or option on
a futures contract in accordance with its terms.
(i) Segregated Accounts.
Upon receipt of Instructions, the Custodian shall establish and
maintain on its books a segregated account or accounts for and on
behalf of a Fund, into which account or accounts may be transferred
Assets of such Fund, including Securities maintained by the Custodian
in a Securities System pursuant to Paragraph (b)(3) of this Section 4,
said account or accounts to be maintained (i) for the purposes set
forth in Sections 4(g), 4(h) and 4(n) and (ii) for the purpose of
compliance by such Fund with the procedures required by the SEC
Investment Company Act Release Number 10666 or any subsequent release
or releases relating to the maintenance of segregated accounts by
registered investment companies, or (iii) for such other purposes as
may be set forth, from time to time, in Special Instructions. The
Custodian shall not be responsible for the determination of the type
or
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amount of Assets to be held in any segregated account referred to in
this paragraph, or for compliance by the Fund with required procedures
noted in (ii) above.
(j) Depositary Receipts.
Upon receipt of Instructions, the Custodian shall surrender or
cause to be surrendered Securities to the depositary used for such
Securities by an issuer of American Depositary Receipts, Global
Depository Receipts or European Depositary Receipts (hereinafter
referred to, collectively, as "ADRs"), against a written receipt
therefor adequately describing such Securities and written evidence
satisfactory to the Custodian or Subcustodian that the depositary has
received instructions to issue ADRs with respect to such Securities in
the name of the Custodian or a nominee of the Custodian, for delivery
in accordance with such instructions.
Upon receipt of Instructions, the Custodian shall surrender or
cause to be surrendered ADRs to the issuer thereof, against a written
receipt therefor adequately describing the ADRs surrendered and
written evidence satisfactory to the Custodian of Subcustodian that
the issuer of the ADRs has received instructions to cause its
depository to deliver the Securities underlying such ADRs in
accordance with such instructions.
(k) Corporate Actions, Put Bonds, Called Bonds, Etc.
Upon receipt of Instructions, the Custodian shall: (a) deliver
warrants, puts, calls, rights or similar Securities to the issuer or
trustee thereof (or to the agent of such issuer or trustee) for the
purpose of exercise or sale, provided that the new Securities, cash or
other Assets, if any, acquired as a result of such actions are to be
delivered to the Custodian; and (b) deposit Securities upon
invitations for tenders thereof, provided that the consideration for
such Securities is to be paid or delivered to the Custodian, 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 in Instructions, to comply with the terms of
all mandatory or compulsory exchanges, calls, tenders, redemptions, or
similar rights of security ownership, and shall notify the appropriate
Fund of such action in writing by facsimile transmission or in such
other manner as such Fund and Custodian may agree in writing.
The Fund agrees that if it gives an Instruction for the
performance of an act on the last permissible date of a period
established by any optional
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offer or on the last permissible date for the performance of such act,
the Fund shall hold the Bank harmless from any adverse consequences in
connection with acting upon or failing to act upon such Instructions,
unless such adverse consequences result from the willful misfeasance
or bad faith of the custodian, its employees or agents.
(l) Interest Bearing Deposits.
Upon receipt of Instructions directing the Custodian to purchase
interest bearing fixed term and call deposits (hereinafter referred
to, collectively, as "Interest Bearing Deposits") for the account of a
Fund, the Custodian shall purchase such Interest Bearing Deposits in
the name of such Fund with such banks or trust companies, including
the Custodian, any Subcustodian or any subsidiary or affiliate of the
Custodian (hereinafter referred to as "Banking Institutions"), and in
such amounts as such Fund may direct pursuant to Instructions. Such
Interest Bearing Deposits may be denominated in U.S. dollars or other
currencies, as such Fund may determine and direct pursuant to
Instructions. The responsibilities of the Custodian to a Fund for
Interest Bearing Deposits issued by the Custodian shall be that of a
U.S. bank for a similar deposit. With respect to Interest Bearing
Deposits other than those issued by the Custodian, (a) the Custodian
shall be responsible for the collection of income and the transmission
of cash to and from such accounts; and (b) the Custodian shall have no
duty with respect to the selection of the Banking Institution or for
the failure of such Banking Institution to pay upon demand.
(m) Foreign Exchange Transactions Other than as Principal.
(1) Upon receipt of Instructions, the Custodian shall settle
foreign exchange contracts or options to purchase and sell
foreign currencies for spot and future delivery on behalf of and
for the account of a Fund with such currency brokers or Banking
Institutions as such Fund may determine and direct pursuant to
Instructions. Each Fund accepts full responsibility for its use
of third party foreign exchange brokers and for execution of said
foreign exchange contracts and understands that the Fund shall be
responsible for any and all costs and interest charges which may
be incurred as a result of the failure or delay of its third
party broker to deliver foreign exchange. The Custodian shall
have no responsibility with respect to the selection of the
currency brokers or Banking Institutions with which a Fund deals
or, so long as the Custodian acts in accordance with
Instructions, for the failure of such brokers or Banking
Institutions to comply with the terms of any contract or option.
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(2) Notwithstanding anything to the contrary contained herein,
upon receipt of Special Instructions the Custodian may, in
connection with a foreign exchange contract, make free outgoing
payments of cash in the form of U.S. Dollars or foreign currency
prior to receipt of confirmation of such foreign exchange
contract or confirmation that the countervalue currency
completing such contract has been delivered or received.
(n) Pledges or Loans of Securities.
(1) Upon receipt of Instructions from a Fund, the Custodian will
release or cause to be released Securities held in custody to the
pledgees designated in such Instructions by way of pledge or
hypothecation to secure loans incurred by such Fund with various
lenders including but not limited to the Custodian; provided,
however, that the Securities shall be released only upon payment
to the Custodian of the monies borrowed, except that in cases
where additional collateral is required to secure existing
borrowings, further Securities may be released or delivered, or
caused to be released or delivered for that purpose upon receipt
of Special Instructions. Upon receipt of Instructions, the
Custodian will pay, but only from funds available for such
purpose, any such loan upon re-delivery to it of the Securities
pledged or hypothecated therefor and upon surrender of the note
or notes evidencing such loan. In lieu of delivering collateral
to a pledgee, the Custodian, on the receipt of Instructions,
shall transfer the pledged Securities to a segregated account for
the benefit of the pledgee.
(2) Upon receipt of Special Instructions, and execution of a
separate Securities Lending Agreement, the Custodian will release
Securities held in custody to the borrower designated in such
Special Instructions and may, except as otherwise provided below,
deliver borrowed Securities prior to the receipt of collateral,
if any, for such borrowing, provided that, in case of loans of
Securities held by a Securities System that are secured by cash
collateral, the Custodian's instructions to the Securities System
shall require that the Securities System deliver the Securities
of the appropriate Fund to the borrower thereof only upon receipt
of the collateral for such borrowing. The Custodian shall have no
responsibility or liability for any loss arising from the
delivery of Securities prior to the receipt of collateral in
accordance with such Special Instructions. Upon receipt of
Instructions and the loaned Securities, the Custodian will
release the collateral to the borrower.
12
(o) Stock Dividends, Rights, Etc.
The Custodian shall receive and collect all stock dividends,
rights, and other items of like nature on behalf of a Fund and, upon
receipt of Instructions, take action with respect to the same as
directed in such Instructions.
(p) Routine Dealings.
The Custodian will, in general, attend to all routine and
mechanical matters in accordance with industry standards in connection
with the sale, exchange, substitution, purchase, transfer, or other
dealings with Securities or other property of each Fund except as may
be otherwise provided in this Agreement or directed from time to time
by Instructions or Special Instructions from any particular Fund. The
Custodian may also make payments to itself or others from the Assets
for disbursements and out-of-pocket expenses incidental to handling
Securities or other similar items relating to its duties under this
Agreement, provided that all such payments shall be accounted for to
the appropriate Fund.
(q) Collections.
The Custodian shall (a) collect amounts due and payable to each
Fund with respect to portfolio Securities and other Assets; (b)
promptly credit to the account of each Fund all income and other
payments relating to portfolio Securities and other Assets held by the
Custodian hereunder upon Custodian's receipt of such income or
payments or as otherwise agreed in writing by the Custodian and any
particular Fund; (c) promptly endorse and deliver any instruments
required to effect such collection; and (d) promptly execute ownership
and other certificates and affidavits for all federal, state, local
and foreign tax purposes in connection with receipt of income or other
payments with respect to portfolio Securities and other Assets, or in
connection with the transfer of such Securities or other Assets;
provided, however, that with respect to portfolio Securities
registered in so-called street name, or physical Securities with
variable interest rates, the Custodian shall use its best efforts to
collect amounts due and payable to any such Fund. The Custodian shall
notify a Fund in writing by facsimile transmission or in such other
manner as such Fund and Custodian may agree in writing if any amount
payable with respect to portfolio Securities or other Assets is not
received by the Custodian when due. The Custodian shall not be
required to institute suit or take other extraordinary action to
enforce collection except upon receipt of Instructions and being
indemnified to its satisfaction against the cost and expenses of such
suit or other actions.
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(r) Deposit Accounts.
The Custodian will open and maintain one or more special purpose
deposit accounts in the name of the Custodian, on behalf of a Fund,
subject only to draft or order by Custodian upon receipt of
Instructions. All monies received by the Custodian from or for the
account of a Fund shall be deposited in said accounts. Barring events
not under the control of the Custodian, at 9:00 a.m., New York time,
on the second business day after deposit of any check into an account,
the Custodian agrees to make Fed Funds available to a Fund in the
amount of the check. Deposits made by Federal Reserve wire will be
available to such Fund immediately and ACH wires will be available to
the Fund on the next business day. Income earned on the portfolio
Securities will be credited to the Fund's deposit account. The
Custodian will be entitled to reverse any credited amounts where
credits have been made and monies are not finally collected. If monies
are collected after such reversal, the Custodian may open and maintain
accounts in its own banking department, or in such other banks or
trust companies as may be designated by it or by the Fund in writing,
all such accounts, however, to be in the name of Custodian, on behalf
of a Fund, and subject only to its draft or order. Funds received and
held for the account of different Funds shall be maintained in
separate accounts established for each Fund.
(s) Dividends, Distributions and Redemptions.
To enable each Fund to pay dividends or other distributions to
shareholders of such Fund and to make payment to shareholders who have
requested repurchase or redemption of their shares of such Fund
(collectively, the "Shares"), the Custodian shall promptly release
cash or Securities insofar as available. In the case of cash, the
Custodian shall, upon the receipt of Instructions, transfer funds by
check or wire transfer to any account at any bank or trust company
designated by the Fund in such Instructions. In the case of
Securities, the Custodian shall, upon the receipt of Special
Instructions, make such transfer to any entity or account designated
by each such Fund in such Special Instructions.
(t) Shares of a Fund purchased by such Fund.
Whenever any Shares are repurchased or redeemed by a Fund, the
Fund or its agent shall advise the Custodian of the aggregate dollar
amount to be paid for such Shares and shall confirm such advice in
writing. Upon receipt of such advice, the Custodian shall charge such
aggregate dollar amount to the account of the Fund and either deposit
the same in the account maintained for purposes of paying for the
redemption of Shares or deliver the same in accordance with such
advice. The Custodian shall not have any duty
14
or responsibility to determine that Shares have been removed from the
proper shareholder account or accounts or that the proper number of
Shares have been cancelled and removed from the shareholder records.
(u) Shares of a Fund purchased from such Fund.
Whenever Shares are purchased from a Fund, the Fund will deposit
or cause to be deposited with the Custodian the amount received for
such Shares. The Custodian shall not have any duty or responsibility
to determine that Shares purchased from a Fund have been added to the
proper shareholder account or accounts or that the proper number of
such Shares have been added to the shareholder records.
(v) Proxies and Notices; Compliance with the Shareholders
Communication Act of 1985.
The Custodian shall deliver or cause to be delivered to the
appropriate Fund all forms of proxies, all notices of meetings, and
any other notices or announcements affecting or relating to Securities
owned by such Fund that are received by the Custodian, any
Subcustodian, or any nominee of either of them, and, upon receipt of
Instructions, the Custodian shall execute and deliver, or cause such
Subcustodian or nominee to execute and deliver, such proxies or other
authorizations as may be required. Except as directed pursuant to
Instructions, neither the Custodian nor any Subcustodian or nominee
shall vote upon any such Securities, or execute any proxy to vote
thereon, or give any consent or take any other action with respect
thereto.
The Custodian will not release the identity of a Fund to an
issuer which requests such information pursuant to the Shareholder
Communication Act of 1985 for the specific purpose of direct
communications between such issuer and the Fund unless such Fund
directs the Custodian otherwise in writing.
(w) Books and Records.
The Custodian shall maintain such records relating to its
activities under this Agreement as are required to be maintained by
Rule 31a-1 under the Investment Company Act of 1940 ("xxx 0000 Xxx")
and to preserve them for the periods prescribed in Rule 31a-2 under
the 1940 Act. These records shall be open for inspection by duly
authorized officers, employees or agents (including independent public
accountants) of the Trust during normal business hours of the
Custodian.
15
The Custodian shall provide accountings relating to its
activities under this Agreement as shall be agreed upon by each Fund
and the Custodian.
(x) Opinion of Trust's Independent Certified Public Accountants.
The Custodian shall take all reasonable action as the Trust may
request to obtain from year to year favorable opinions from the
Trust's independent certified public accountants with respect to the
Custodian's activities hereunder and in connection with the
preparation of each such Fund's periodic reports to the SEC and with
respect to any other requirements of the SEC.
(y) Reports by Independent Certified Public Accountants.
At the request of a Fund, the Custodian shall deliver to such
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 control 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 Trust and as may reasonably be obtained
by the Custodian.
(z) Bills and Other Disbursements.
Upon receipt of Instructions, the Custodian shall pay, or cause
to be paid, all bills, statements, or other obligations of a Fund.
5. SUBCUSTODIANS.
From time to time, in accordance with the relevant provisions of this
Agreement, the Custodian may appoint one or more Domestic Subcustodians or
Special Subcustodians (as each are hereinafter defined) to act on behalf of any
one or more Funds. A Domestic Subcustodian, in accordance with the provisions of
this Agreement, may also appoint a Special Subcustodian to act on behalf of any
one or more Funds. For purposes of this Agreement, all Domestic Subcustodians
and Special Subcustodians shall be referred to collectively as "Subcustodians".
(a) Domestic Subcustodians.
The Custodian may, at any time and from time to time, appoint any
bank as defined in Section 2(a)(5) of the 1940 Act or any trust
company or other entity, any of which meet the requirements of a
custodian under Section 17(f) of the 1940 Act and the rules and
regulations thereunder, to act for the Custodian on behalf of any
16
one or more Funds as a subcustodian for purposes of holding Assets of
such Fund(s) and performing other functions of the Custodian within
the United States (a "Domestic Subcustodian"). Each Fund shall approve
in writing the appointment of the proposed Domestic Subcustodian; and
the Custodian's appointment of any such Domestic Subcustodian shall
not be effective without such prior written approval of the Fund(s).
Each such duly approved Domestic Subcustodian shall be listed on
Appendix A attached hereto, as it may be amended, from time to time.
(b) Special Subcustodians.
Upon receipt of Special Instructions, the Custodian shall, on
behalf of a Fund, appoint one or more banks, trust companies or other
entities designated in such Special Instructions to act for the
Custodian on behalf of such Fund as a subcustodian for purposes of:
(i) effecting third-party repurchase transactions with banks, brokers,
dealers or other entities through the use of a common custodian or
subcustodian; (ii) providing depository and clearing agency services
with respect to certain variable rate demand note Securities, (iii)
providing depository and clearing agency services with respect to
dollar denominated Securities, and (iv) effecting any other
transactions designated by such Fund in such Special Instructions.
Each such designated subcustodian (hereinafter referred to as a
"Special Subcustodian") shall be listed on Appendix A attached hereto,
as it may be amended from time to time. In connection with the
appointment of any Special Subcustodian, the Custodian shall enter
into a subcustodian agreement with the Special Subcustodian in form
and substance approved by the appropriate Fund in Special
Instructions. The Custodian shall not amend any subcustodian agreement
entered into with a Special Subcustodian, or waive any rights under
such agreement, except upon prior approval pursuant to Special
Instructions.
(c) Supervision of Subcustodian.
The Custodian shall (i) cause each Domestic Subcustodian to, and
(ii) use its best efforts to cause each Special Subcustodian to,
perform all of its obligations in accordance with the terms and
conditions of the subcustodian agreement under which the Subcustodian
services.
(d) Termination of a Subcustodian.
The Custodian may, at any time in its discretion upon at least 60
days notice to the appropriate Fund(s), terminate any Subcustodian of
such Fund(s) in accordance with the termination provisions under the
applicable subcustodian agreement, and upon the receipt of Special
Instructions, the Custodian will terminate any Subcustodian in
accordance with the termination provisions under the applicable
subcustodian agreement.
17
6. STANDARD OF CARE.
(a) General Standard of Care.
The Custodian shall hold harmless and indemnify a Fund for all
losses, damages, liabilities and reasonable costs and expenses
suffered or incurred by such Fund resulting from the gross negligence
or willful misfeasance of the Custodian, its directors, officers,
employees, or agents; provided, however, in no event shall the
Custodian be liable for special, indirect or consequential damages
arising under or in connection with this Agreement.
(b) Actions Prohibited by Applicable Law, Events Beyond Custodian's
Control, Sovereign Risk, Etc.
In no event shall the Custodian or any Domestic Subcustodian
incur liability hereunder if the Custodian or any Subcustodian or
Securities System, or any subcustodian, Securities System, Securities
Depository or Clearing Agency utilized by the Custodian or any such
Subcustodian, or any nominee of the Custodian or any Subcustodian
(individually, a person") 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 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 court of
competent jurisdiction (and neither the Custodian nor any other Person
shall be obligated to take any action contrary thereto); or (ii) any
event beyond the control of the Custodian or other Person such as
armed conflict, riots, strikes, lockouts, labor disputes, equipment or
transmission failures (unless caused by the negligence or willful
misconduct of the Custodian), natural disasters, or failure of the
mails, transportation, communications or power supply (unless caused
by the negligence or willful misfeasance of the Custodian, its agents
or employees); or (iii) any "Sovereign Risk." 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 a Fund's Assets; or acts of armed conflict,
terrorism, insurrection or revolution; or any other act or event
beyond the Custodian's or such other Person's control.
(c) Upon the occurrence of any event which causes or may cause any
loss, damage or expense to a Fund, (i) the Custodian shall cause any
applicable Domestic Subcustodian to, and (ii) the Custodian shall use
its best efforts to cause any Special Subcustodian to, use all
commercially reasonable efforts and take all reasonable steps under
the circumstances to mitigate the effects of such event and to avoid
continuing harm to the Funds.
18
(d) Liability for Past Records.
Neither the Custodian nor any Domestic Subcustodian shall have
any liability in respect of any loss, damage or expense suffered by a
Fund, insofar as such loss, damage or expense arises from the
performance of the Custodian or any Domestic Subcustodian in reliance
upon records that were maintained for such Fund by entities other than
the Custodian or any Domestic Subcustodian prior to the Custodian's
employment hereunder.
(e) Advice of Counsel.
The Custodian and all Domestic Subcustodians shall be entitled to
receive and act upon advice of counsel of its own choosing and
acceptable to the Funds on all matters. The Custodian and all Domestic
Subcustodians shall be without liability for any actions reasonably
taken or omitted in good faith pursuant to the advice of such counsel.
(f) Advice of the Fund and Others.
The Custodian and any Domestic Subcustodian may rely upon the
advice of any Fund and upon statements of such Fund's accountants and
other persons believed by it in good faith to be expert in matters
upon which they are consulted, and neither the Custodian nor any
Domestic Subcustodian shall be liable for any actions taken or
omitted, in good faith, pursuant to such advice or statements.
(g) Instructions Appearing to be Genuine.
The Custodian and all Domestic Subcustodians shall be fully
protected and indemnified in acting as a custodian hereunder upon any
Resolutions of the Trustees, Instructions, Special Instructions,
advice, notice, request, consent, certificate, instrument or paper
appearing to it to be genuine and to have been properly executed and
shall, unless otherwise specifically provided herein, be entitled to
receive as conclusive proof of any fact or matter required to be
ascertained from any Fund hereunder a certificate signed by any
officer of such Fund authorized to countersign or confirm Special
Instructions.
(h) Exceptions from Liability.
Without limiting the generality of any other provisions hereof,
neither the Custodian nor any Domestic Subcustodian shall be under any
duty or obligation to inquire into, nor be liable for:
(i) the validity of the issue of any Securities purchased by or
for any Fund, the legality of the purchase thereof or
evidence of ownership
19
required to be received by any such Fund, or the propriety
of the decision to purchase of amount paid therefore;
(ii) the legality of the sale of any Securities by or for any
Fund, or the propriety of the amount for which the same were
sold; or
(iii) any other expenditures, encumbrances of Securities,
borrowings or similar actions with respect to any Fund's
Assets;
and may, until notified to the contrary, presume that all Instructions
or Special Instructions received by it are not in conflict with or in
any way contrary to any provisions of the Trust's Declaration of Trust
or By-Laws or votes or proceedings of the shareholders of a Fund or
the Trustees of the Trust, or the Trust's currently effective
Registration Statement on file with the SEC.
7. LIABILITY OF THE CUSTODIAN FOR ACTIONS OF OTHERS.
(a) Domestic Subcustodians.
The Custodian shall be liable for the acts or omissions of any
Domestic Subcustodian to the same extent as if such actions or
omissions were performed by the Custodian itself.
(b) Securities Systems, Special Subcustodians, Securities
Depositories and Clearing Agencies.
The Custodian shall not be liable to any Fund for any loss,
damage or expense suffered or incurred by such Fund resulting from or
occasioned by the actions or omissions of a Securities System, Special
Subcustodian, or Securities Depository and Clearing Agency unless such
loss, damage or expense is caused by, or results from, the negligence
or willful misfeasance of the Custodian, its employees or agents, or
any affiliate of the Custodian which provides services to the Funds at
the direction of the Custodian, for whose actions the Custodian will
be liable to the same extent as if the Custodian had provided such
services directly.
(c) Defaults of Insolvencies of Brokers, Banks, Etc.
The Custodian shall not be liable for any loss, damage or expense
suffered or incurred by any Fund resulting from or occasioned by the
actions, omissions, neglects, defaults or insolvency of any broker,
bank, trust company or any other person with whom the Custodian may
deal (other than any of such entities acting as a Subcustodian,
Securities System or Securities Depository and Clearing Agency, for
whose actions the liability of the Custodian is set out elsewhere in
this Agreement, or any affiliate of the Custodian which provides
services to the Funds at the direction
20
of the Custodian, for whose actions the Custodian will be liable to
the same extent as if the Custodian had provided such services
directly), unless such loss, damage or expense is caused by, or
results from, the negligence or willful misfeasance of the Custodian.
(d) Reimbursement of Expenses.
The Fund's Administrator agrees to reimburse the Custodian for
all reasonable out-of-pocket expenses incurred by the Custodian in
connection with this Agreement, but excluding salaries and usual
overhead expenses.
8. INDEMNIFICATION.
(a) Indemnification by Fund.
Subject to the limitations set forth in this Agreement, each Fund
agrees to indemnify and hold harmless the Custodian and its nominees
from all losses, damages and expenses (including reasonable attorneys'
fees) suffered or incurred by the Custodian or its nominee caused by
or arising from actions taken by the Custodian, its employees or
agents in the performance of its duties and obligations under this
Agreement, including, but not limited to, any indemnification
obligations undertaken by the Custodian under any relevant
subcustodian agreement; provided, however, that such indemnity shall
not apply to the extent the Custodian is liable under Sections 6 or 7
hereof.
If any Fund requires the Custodian to take any action with
respect to Securities, which action involves the payment of money or
which may, in the opinion of the Custodian, result in the Custodian or
its nominee assigned to such Fund being liable for the payment of
money, such Fund, as a prerequisite to requiring the Custodian to take
such action, shall provide indemnity to the Custodian in an amount and
form satisfactory to it.
(b) Indemnification by Custodian.
Subject to the limitations set forth in this Agreement and in
addition to the obligations provided in Sections 6 and 7, the
Custodian agrees to indemnify and hold harmless each Fund and its
nominee from all losses, damages and expenses (including reasonable
attorneys' fees) suffered or incurred by such Fund or its nominee
caused by the negligence or willful misfeasance of the Custodian.
9. ADVANCES.
In the event that, pursuant to Instructions, the Custodian or any
Subcustodian, Securities System, or Securities Depository or Clearing
Agency acting either directly or
21
indirectly under agreement with the Custodian (each of which for purposes
of this Section 9 shall be referred to as "Custodian"), makes any payment
or transfer of funds on behalf of any Fund as to 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 any such Fund, the Custodian may,
in its discretion without further Instructions, provide an advance
("Advance") to any such 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 Instructions to make any payment or transfer of funds on behalf of any
Fund as to which it is subsequently determined that such 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 by the Fund on behalf of which the Advance was
made on demand by Custodian, unless otherwise agreed by such Fund and the
Custodian, and shall accrue interest from the date of the Advance to the
date of payment by such Fund to the Custodian at a rate agreed upon in
writing from time to time by the custodian and such 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 on behalf of which the
Advance was made, 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 each of the Funds 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 a Fund. The Custodian
shall promptly notify the appropriate Fund of any Advance. Such
notification shall be sent by facsimile transmission or in such other
manner as such Fund and the Custodian may agree.
10. SECURITY FOR OBLIGATIONS TO CUSTODIAN.
If the Custodian or any Subcustodian, Securities System, or Securities
Depository or Clearing Agency acting either directly or indirectly under
agreement with the Custodian, or any nominee of any of the foregoing, shall
incur or be assessed any taxes, charges, expenses, assessments, claims or
liabilities in connection with the performance of this Agreement
(collectively "Liability"), except such as may arise from its or its
nominee's breach of the relevant standard of care set forth in this
Agreement, or if the Custodian, or any such Subcustodian, Securities
System, or Securities Depository or Clearing Agency or the nominee of any
of the foregoing, shall make any Advance to any fund, then in such event
property of the Fund on behalf of which the Advance was made equal in value
to not more than 110% of such Advance and accrued interest thereon or the
anticipated amount of such Liability shall be held as security for such
Liability or for such Advance and the interest thereon.
The appropriate Fund shall reimburse the Custodian promptly for any
Liability and shall pay any Advances on demand after notice from the
Custodian to the Fund of the
22
existence of the Advance. If, after notification, such Fund shall fail to
promptly pay such Advance or interest when due or shall fail to reimburse
the Custodian promptly in respect of a Liability, the Custodian or any such
Subcustodian, Securities System, or Securities Depository or Clearing
Agency shall be entitled to utilize available cash or dispose of such
Fund's Assets to the extent, and only to the extent, necessary to obtain
repayment or reimbursement.
11. COMPENSATION.
The Custodian agrees that it shall not look to the Funds of the Trust
for compensation for its services provided under this Agreement. The
Custodian shall be compensated entirely by Janus Capital Corporation, the
Funds' Administrator, pursuant to the Administration Agreement between
Janus Capital Corporation and the Trust dated December 9, 1994, a copy of
which is attached hereto as Appendix C and incorporated herein by
reference. Such compensation shall be in amounts as agreed to, in writing,
by the Custodian and Janus Capital Corporation from time to time. The
provisions contained in this Section 11 shall not affect the obligation of
each Fund to repay Advances and Liabilities as set forth in Sections 9 and
10.
12. POWERS OF ATTORNEY.
Upon request, each 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.
13. TERMINATION AND ASSIGNMENT.
Any Fund or the Custodian may terminate this Agreement by notice in
writing, delivered or mailed, postage prepaid (certified mail, return
receipt requested) to the other not less than 60 days prior to the date
upon which such termination shall take effect. Upon termination of this
Agreement, the custodian shall pay such fees as may be due the Custodian
hereunder in accordance with Section 11 of this Agreement, as well as its
reimbursable disbursements, costs and expenses paid or incurred. Upon
termination of this Agreement, the custodian shall deliver, at the
terminating party's expense, all Assets held by it hereunder to the
appropriate Fund or as otherwise designated by such Fund by Special
Instructions. Upon such delivery, the Custodian shall have no further
obligations or liabilities under this Agreement except as to the final
resolution of matters relating to activity occurring prior to the later of
the effective date of termination, or the date upon which the Custodian
completes the delivery of all Assets held by it hereunder to the
appropriate Fund or as otherwise directed by such Fund.
23
This Agreement may not be assigned by the Custodian or any Fund
without the respective consent of the other, duly authorized by a
resolution by its Board of Directors or Trustees.
14. ADDITIONAL FUNDS.
An additional Fund or Funds may become a party to this Agreement after
the date hereof by an instrument in writing to such effect signed by the
Trust and the custodian. If this Agreement is terminated as to one or more
of the Funds (but less than all of the Funds) or if an additional Fund or
Funds shall become a party to this Agreement, there shall be delivered to
each party an Appendix B or an amended Appendix B, signed on behalf of the
additional Funds (if any) and each of the remaining Funds by the Trust as
well as the Custodian, deleting or adding such Fund or Funds, as the case
may be. The termination of this Agreement as to less than all of the Funds
shall not affect the obligations of the Custodian and the remaining Funds
hereunder as set forth on the signature page hereto and in Appendix B as
revised from time to time.
15. NOTICES.
As to each Fund, notices, requests, instructions and other writings
delivered to Janus Aspen Series, 000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, XX
00000-0000, postage prepaid, or to such other address as the Trust shall
from time to time designate to the custodian in writing, shall be deemed to
have been properly delivered or given to a Fund.
Notices, requests, instructions and other writings delivered to the
Securities Administration Department of the Custodian at its office at 000
Xxxxx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx, or mailed postage prepaid, to the
Custodian's Securities Xxxxxxxxxxxxxx Xxxxxxxxxx, Xxxx Xxxxxx Xxx 000,
Xxxxxx Xxxx, Xxxxxxxx 00000, or to such other addresses as the Custodian
may have designated to each Fund in writing, shall be deemed to have been
properly delivered or given to the Custodian hereunder; provided, however,
that procedures for the delivery of Instructions and Special Instructions
shall be governed by Section 2(c) hereof.
16. MISCELLANEOUS.
(a) This Agreement is executed and delivered in the State of Missouri
and shall be governed by the laws of such state.
(b) All of the terms and provisions of this Agreement shall be binding
upon, and inure to the benefit of, and be enforceable by the
respective successors and assigns of the parties hereto.
(c) No provisions of this Agreement may be amended, modified or
waived, in any manner except in writing, properly executed by both
parties hereto; provided,
24
however, Appendix A may be amended from time to time as Domestic
Subcustodians, Special Subcustodians, and Securities Depositories and
Clearing Agencies are approved or terminated according to the terms of
this Agreement.
(d) The captions in this Agreement are included for convenience of
reference only, and in no way define or delimit any of the provisions
hereof or otherwise affect their construction or effect.
(e) This Agreement shall be effective as of the date of execution
hereof.
(f) This Agreement may be executed simultaneously in two or more
counterparts, each of which will be deemed an original, but all of
which together will constitute one and the same instrument.
(g) The following terms are defined terms within the meaning of this
Agreement, and the definitions thereof are found in the following
sections of the Agreement:
Term Section
Account 4(b)(3)(ii)
ADR'S 4(j)
Advance 9
Assets 2
Authorized Person 3
Banking Institution 4(1)
Domestic Subcustodian 5(a)
Instruction 2
Interest Bearing Deposit 4(1)
Liability 10
OCC 4(g)(2)
Person 6(b)
Procedural Agreement 4(h)
SEC 4(b)(3)
Securities 2
Securities Depositories and 5(b)
Clearing Agencies
Securities System 4(b)(3)
Shares 4(s)
Sovereign Risk 6(b)
Special Instruction 2
Special Subcustodian 5(c)
Subcustodian 5
1940 Act 4(v)
25
(h) If any part, term or provision of this Agreement is held to be
illegal, in conflict with any law or otherwise invalid by any court of
competent jurisdiction, the remaining portion or portions shall be
considered severable and shall not be affected, and the rights and
obligations of the parties shall be construed and enforced as if this
Agreement did not contain the particular part, term or provision held
to be illegal or invalid.
(i) This Agreement constitutes the entire understanding and agreement
of the parties hereto with respect to the subject matter hereof, and
accordingly supersedes, as of the effective date of this Agreement,
any custodian agreement heretofore in effect between the Fund and the
Custodian.
IN WITNESS WHEREOF, the parties hereto have caused this Custody Agreement
to be executed by their respective duly authorized officers.
JANUS ASPEN SERIES,
on behalf of Money Market Portfolio
ATTEST: By:_____________________________________
Name:___________________________________
__________________________________ Title:__________________________________
UMB BANK, N.A.
ATTEST: By:_____________________________________
Name:___________________________________
__________________________________ Title:__________________________________
26
APPENDIX A
CUSTODY AGREEMENT
DOMESTIC SUBCUSTODIANS:
United Missouri Trust Company of New York
SECURITIES SYSTEMS:
Federal Book Entry
Depository Trust Company
Participant's Trust Company
SPECIAL SUBCUSTODIANS:
Bank of New York
Nations Bank of North Carolina
Chemical Bank
Bankers Trust
JANUS ASPEN SERIES, UMB BANK, N.A.
on behalf of Money Market Portfolio
By:_______________________________ By:_____________________________________
Name:_____________________________ Name:___________________________________
Title:____________________________ Title:__________________________________
Date:_____________________________
27
APPENDIX A
CUSTODY AGREEMENT
The following open-end management investment companies ("Funds"), each of
which is a separate series of Janus Aspen Series, are hereby made parties to the
Custody Agreement dated _______________________, 199_, with UMB Bank, N.A.
("Custodian"), and agree to be bound by all the terms and conditions contained
in said Agreement as of this ______ day of _____________, 1995.
Money Market Portfolio
JANUS ASPEN SERIES
ATTEST: By:_____________________________________
Name:___________________________________
__________________________________ Title:__________________________________
UMB BANK, N.A.
ATTEST: By:_____________________________________
Name:___________________________________
__________________________________ Title:__________________________________
28
APPENDIX C
ADMINISTRATION AGREEMENT
29