CUSTODY AGREEMENT
THIS AGREEMENT is made and entered into as of this 29th day of April, 2009,
by and between PC&J PERFORMANCE FUND, an Ohio business trust (the "Trust"), and
U.S. BANK NATIONAL ASSOCIATION, a national banking association organized and
existing under the laws of the United States of America (the "Custodian").
WHEREAS, the Trust is registered under the Investment Company Act of 1940, as
amended (the "1940 Act"), as an open-end management investment company, and is
authorized to issue shares of beneficial interest in separate series, with each
such series representing interests in a separate portfolio of securities and
other assets;
WHEREAS, the Custodian is a bank having the qualifications prescribed in Section
26(a)(1) of the 1940 Act;
WHEREAS, the Trust desires to retain the Custodian to act as custodian of the
cash and securities of each series of the Trust listed on Exhibit C hereto (as
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amended from time to time) (each a "Fund" and collectively, the "Funds"); and
WHEREAS, the Board of Trustees of the Trust has delegated to the Custodian the
responsibilities set forth in Rule 17f-5(c) under the 1940 Act and the Custodian
is willing to undertake the responsibilities and serve as the foreign custody
manager for the Trust.
NOW, THEREFORE, in consideration of the promises and mutual covenants herein
contained, and other good and valuable consideration, the receipt of which is
hereby acknowledged, the parties hereto, intending to be legally bound, do
hereby agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Whenever used in this Agreement, the following words and phrases shall have the
meanings set forth below unless the context otherwise requires:
1.01 "Authorized Person" means any Officer or other person duly authorized
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by resolution of the Board of Trustees to give Oral Instructions and Written
Instructions on behalf of the Fund and named in Exhibit A hereto or in such
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resolutions of the Board of Trustees, certified by an Officer, as may be
received by the Custodian from time to time.
1.02 "Board of Trustees" shall mean the trustees from time to time serving
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under the Trust's declaration of trust, as amended from time to time.
1.03 "Book-Entry System" shall mean a federal book-entry system as provided
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in Subpart O of Treasury Circular Xx. 000, 00 XXX 306, in Subpart B of 31 CFR
Part 350, or in such book-entry regulations of federal agencies as are
substantially in the form of such Subpart O.
1.04 "Business Day" shall mean any day recognized as a settlement day by The
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New York Stock Exchange, Inc., and any other day for which the Trust computes
the net asset value of Shares of the Fund.
1.05 "Eligible Foreign Custodian" has the meaning set forth in Rule
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17f-5(a)(1), including a majority-owned or indirect subsidiary of a U.S. Bank
(as defined in Rule 17f-5), a bank holding company meeting the requirements of
an Eligible Foreign Custodian (as set forth in Rule 17f-5 or by other
appropriate action of the SEC), or a foreign branch of a Bank (as defined in
Section 2(a)(5) of the 0000 Xxx) meeting the requirements of a custodian under
Section 17(f) of the 1940 Act; the term does not include any Eligible Securities
Depository.
1.06 "Eligible Securities Depository" shall mean a system for the central
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handling of securities as that term is defined in Rule 17f-4 and 17f-7 under the
0000 Xxx.
1.07 "Foreign Securities" means any of the [Trust's/Fund's] investments
(including foreign currencies) for which the primary market is outside the
United States and such cash and cash equivalents as are reasonably necessary to
effect the [Trust/Fund's] transactions in such investments.
1.08 "Fund Custody Account" shall mean any of the accounts in the name of
the Trust, which is provided for in Section 3.2 below.
1.09 "IRS" shall mean the Internal Revenue Service.
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1.10 "FINRA" shall mean The Financial Industry Regulatory Authority.
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1.11 "Officer" shall mean the Chairman, President, any Vice President, any
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Assistant Vice President, the Secretary, any Assistant Secretary, the Treasurer,
or any Assistant Treasurer of the Trust.
1.12 "Oral Instructions" shall mean instructions orally transmitted to and
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accepted by the Custodian because such instructions are: (i) reasonably
believed by the Custodian to have been given by any two Authorized Persons, (ii)
recorded and kept among the records of the Custodian made in the ordinary course
of business, and (iii) orally confirmed by the Custodian. The Trust shall cause
all Oral Instructions to be confirmed by Written Instructions prior to the end
of the next Business Day. If such Written Instructions confirming Oral
Instructions are not received by the Custodian prior to a transaction, it shall
in no way affect the validity of the transaction or the authorization thereof by
the Trust. If Oral Instructions vary from the Written Instructions that purport
to confirm them, the Custodian shall notify the Trust of such variance but such
Oral Instructions will govern unless the Custodian has not yet acted.
1.13 "Proper Instructions" shall mean Oral Instructions or Written
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Instructions.
1.14 "SEC" shall mean the Securities and Exchange Commission.
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1.15 "Securities" shall include, without limitation, common and preferred
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stocks, bonds, call options, put options, debentures, notes, bank certificates
of deposit, bankers' acceptances, mortgage-backed securities or other
obligations, and any certificates, receipts, warrants or other instruments or
documents representing rights to receive, purchase or subscribe for the same, or
evidencing or representing any other rights or interests therein, or any similar
property or assets that the Custodian or its agents have the facilities to clear
and service.
1.16 "Securities Depository" shall mean The Depository Trust Company and any
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other clearing agency registered with the SEC under Section 17A of the
Securities Exchange Act of 1934, as amended (the "1934 Act"), which acts as a
system for the central handling of Securities where all Securities of any
particular class or series of an issuer deposited within the system are treated
as fungible and may be transferred or pledged by bookkeeping entry without
physical delivery of the Securities.
1.17 "Shares" shall mean, with respect to a Fund, the units of beneficial
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interest issued by the Trust on account of the Fund.
1.18 "Sub-Custodian" shall mean and include (i) any branch of a "U.S. bank,"
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as that term is defined in Rule 17f-5 under the 1940 Act, and (ii) any "Eligible
Foreign Custodian" having a contract with the Custodian which the Custodian has
determined will provide reasonable care of assets of the Fund based on the
standards specified in Section 3.3 below. Such contract shall be in writing and
shall include provisions that provide: (i) for indemnification or insurance
arrangements (or any combination of the foregoing) such that the Fund will be
adequately protected against the risk of loss of assets held in accordance with
such contract; (ii) that the Foreign Securities will not be subject to any
right, charge, security interest, lien or claim of any kind in favor of the
Sub-Custodian or its creditors except a claim of payment for their safe custody
or administration, in the case of cash deposits, liens or rights in favor of
creditors of the Sub-Custodian arising under bankruptcy, insolvency, or similar
laws; (iii) that beneficial ownership for the Foreign Securities will be freely
transferable without the payment of money or value other than for safe custody
or administration; (iv) that adequate records will be maintained identifying the
assets as belonging to the Fund or as being held by a third party for the
benefit of the Fund; (v) that the Fund's independent public accountants will be
given access to those records or confirmation of the contents of those records;
and (vi) that the Fund will receive periodic reports with respect to the
safekeeping of the Fund's assets, including, but not limited to, notification of
any transfer to or from a Fund's account or a third party account containing
assets held for the benefit of the Fund. Such contract may contain, in lieu of
any or all of the provisions specified in (i)-(vi) above, such other provisions
that the Custodian determines will provide, in their entirety, the same or a
greater level of care and protection for Fund assets as the specified
provisions.
1.19 "Written Instructions" shall mean (i) written communications actually
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received by the Custodian and signed by any two Authorized Persons, (ii)
communications by telex or any other such system from one or more persons
reasonably believed by the Custodian to be Authorized Persons, or (iii)
communications between electro-mechanical or electronic devices provided that
the use of such devices and the procedures for the use thereof shall have been
approved by resolutions of the Board of Trustees, a copy of which, certified by
an Officer, shall have been delivered to the Custodian.
ARTICLE II.
APPOINTMENT OF CUSTODIAN
2.01 Appointment. The Trust hereby appoints the Custodian as custodian of
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all Securities and cash owned by or in the possession of the Fund at any time
during the period of this Agreement, on the terms and conditions set forth in
this Agreement, and the Custodian hereby accepts such appointment and agrees to
perform the services and duties set forth in this Agreement. The Trust hereby
delegates to the Custodian, subject to Rule 17f-5(b), the responsibilities with
respect to the Fund's Foreign Securities, and the Custodian hereby accepts such
delegation as foreign custody manager with respect to the Fund. The services
and duties of the Custodian shall be confined to those matters expressly set
forth herein, and no implied duties are assumed by or may be asserted against
the Custodian hereunder.
2.02 Documents to be Furnished. The following documents, including any
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amendments thereto, will be provided contemporaneously with the execution of the
Agreement to the Custodian by the Trust:
(a) A copy of the Trust's declaration of trust, certified by the Secretary;
(b) A copy of the Trust's bylaws, certified by the Secretary;
(c) A copy of the resolution of the Board of Trustees of the Trust
appointing the Custodian, certified by the Secretary;
(d) A copy of the current prospectus of the Fund (the "Prospectus");
(e) A certification of the Chairman or the President and the Secretary of
the Trust setting forth the names and signatures of the current Officers of the
Trust and other Authorized Persons; and
(f) An executed authorization required by the Shareholder Communications Act
of 1985, attached hereto as Exhibit E.
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2.03 Notice of Appointment of Transfer Agent. The Trust agrees to notify
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the Custodian in writing of the appointment, termination or change in
appointment of any transfer agent of the Fund.
ARTICLE III.
CUSTODY OF CASH AND SECURITIES
3.01 Segregation. All Securities and non-cash property held by the
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Custodian for the account of the Fund (other than Securities maintained in a
Securities Depository, Eligible Securities Depository or Book-Entry System)
shall be physically segregated from other Securities and non-cash property in
the possession of the Custodian (including the Securities and non-cash property
of the other series of the Trust, if applicable) and shall be identified as
subject to this Agreement.
3.02 Fund Custody Accounts. As to each Fund, the Custodian shall open and
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maintain in its trust department a custody account in the name of the Trust
coupled with the name of the Fund, subject only to draft or order of the
Custodian, in which the Custodian shall enter and carry all Securities, cash and
other assets of such Fund which are delivered to it.
3.03 Appointment of Agents.
(a) In its discretion, the Custodian may appoint one or more Sub-Custodians
to establish and maintain arrangements with (i) Eligible Securities Depositories
or (ii) Eligible Foreign Custodians who are members of the Sub-Custodian's
network to hold Securities and cash of the Fund and to carry out such other
provisions of this Agreement as it may determine; provided, however, that the
appointment of any such agents and maintenance of any Securities and cash of the
Fund shall be at the Custodian's expense and shall not relieve the Custodian of
any of its obligations or liabilities under this Agreement. The Custodian shall
be liable for the actions of any Sub-Custodians (regardless of whether assets
are maintained in the custody of a Sub-Custodian, a member of its network or an
Eligible Securities Depository) appointed by it as if such actions had been done
by the Custodian.
(b) If, after the initial appointment of Sub-Custodians by the Board of
Trustees in connection with this Agreement, the Custodian wishes to appoint
other Sub-Custodians to hold property of the Fund, it will so notify the Trust
and make the necessary determinations as to any such new Sub-Custodian's
eligibility under Rule 17f-5 under the 1940 Act.
(c) In performing its delegated responsibilities as foreign custody manager
to place or maintain the Fund's assets with a Sub-Custodian, the Custodian will
determine that the Fund's assets will be subject to reasonable care, based on
the standards applicable to custodians in the country in which the Fund's assets
will be held by that Sub-Custodian, after considering all factors relevant to
safekeeping of such assets, including, without limitation the factors specified
in Rule 17f-5(c)(1).
(d) The agreement between the Custodian and each Sub-Custodian acting
hereunder shall contain the required provisions set forth in Rule 17f-5(c)(2)
under the 1940 Act.
(e) At the end of each calendar quarter, the Custodian shall provide written
reports notifying the Board of Trustees of the withdrawal or placement of the
Securities and cash of the Fund with a Sub-Custodian and of any material changes
in the Fund's arrangements. Such reports shall include an analysis of the
custody risks associated with maintaining assets with any Eligible Securities
Depositories. The Custodian shall promptly take such steps as may be required
to withdraw assets of the Fund from any Sub-Custodian arrangement that has
ceased to meet the requirements of Rule 17f-5 or Rule 17f-7 under the 1940 Act,
as applicable.
(f) With respect to its responsibilities under this Section 3.3, the
Custodian hereby warrants to the Trust that it agrees to exercise reasonable
care, prudence and diligence such as a person having responsibility for the
safekeeping of property of the Fund. The Custodian further warrants that the
Fund's assets will be subject to reasonable care if maintained with a
Sub-Custodian, after considering all factors relevant to the safekeeping of such
assets, including, without limitation: (i) the Sub-Custodian's practices,
procedures, and internal controls for certificated securities (if applicable),
its method of keeping custodial records, and its security and data protection
practices; (ii) whether the Sub-Custodian has the requisite financial strength
to provide reasonable care for Fund assets; (iii) the Sub-Custodian's general
reputation and standing and, in the case of a Securities Depository, the
Securities Depository's operating history and number of participants; and (iv)
whether the Fund will have jurisdiction over and be able to enforce judgments
against the Sub-Custodian, such as by virtue of the existence of any offices of
the Sub-Custodian in the United States or the Sub-Custodian's consent to service
of process in the United States.
(g) The Custodian shall establish a system or ensure that its Sub-Custodian
has established a system to monitor on a continuing basis (i) the
appropriateness of maintaining the Fund's assets with a Sub-Custodian or
Eligible Foreign Custodians who are members of a Sub-Custodian's network; (ii)
the performance of the contract governing the Fund's arrangements with such
Sub-Custodian or Eligible Foreign Custodian's members of a Sub-Custodian's
network; and (iii) the custody risks of maintaining assets with an Eligible
Securities Depository. The Custodian must promptly notify the Fund or its
investment adviser of any material change in these risks.
(h) The Custodian shall use reasonable commercial efforts to collect all
income and other payments with respect to Foreign Securities to which the Fund
shall be entitled and shall credit such income, as collected, to the Trust. In
the event that extraordinary measures are required to collect such income, the
Trust and Custodian shall consult as to the measures and as to the compensation
and expenses of the Custodian relating to such measures.
3.04 Delivery of Assets to Custodian. The Trust shall deliver, or cause to
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be delivered, to the Custodian all of the Fund's Securities, cash and other
investment assets, including (i) all payments of income, payments of principal
and capital distributions received by the Fund with respect to such Securities,
cash or other assets owned by the Fund at any time during the period of this
Agreement, and (ii) all cash received by the Fund for the issuance of Shares.
The Custodian shall not be responsible for such Securities, cash or other assets
until actually received by it.
3.05 Securities Depositories and Book-Entry Systems. The Custodian may
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deposit and/or maintain Securities of the Fund in a Securities Depository or in
a Book-Entry System, subject to the following provisions:
(a) The Custodian, on an on-going basis, shall deposit in a Securities
Depository or Book-Entry System all Securities eligible for deposit therein and
shall make use of such Securities Depository or Book-Entry System to the extent
possible and practical in connection with its performance hereunder, including,
without limitation, in connection with settlements of purchases and sales of
Securities, loans of Securities, and deliveries and returns of collateral
consisting of Securities.
(b) Securities of the Fund kept in a Book-Entry System or Securities
Depository shall be kept in an account ("Depository Account") of the Custodian
in such Book-Entry System or Securities Depository which includes only assets
held by the Custodian as a fiduciary, custodian or otherwise for customers.
(c) The records of the Custodian with respect to Securities of the Fund
maintained in a Book-Entry System or Securities Depository shall, by book-entry,
identify such Securities as belonging to the Fund.
(d) If Securities purchased by the Fund are to be held in a Book-Entry
System or Securities Depository, the Custodian shall pay for such Securities
upon (i) receipt of advice from the Book-Entry System or Securities Depository
that such Securities have been transferred to the Depository Account, and (ii)
the making of an entry on the records of the Custodian to reflect such payment
and transfer for the account of the Fund. If Securities sold by the Fund are
held in a Book-Entry System or Securities Depository, the Custodian shall
transfer such Securities upon (i) receipt of advice from the Book-Entry System
or Securities Depository that payment for such Securities has been transferred
to the Depository Account, and (ii) the making of an entry on the records of the
Custodian to reflect such transfer and payment for the account of the Fund.
(e) The Custodian shall provide the Trust with copies of any report
(obtained by the Custodian from a Book-Entry System or Securities Depository in
which Securities of the Fund are kept) on the internal accounting controls and
procedures for safeguarding Securities deposited in such Book-Entry System or
Securities Depository.
(f) Notwithstanding anything to the contrary in this Agreement, the
Custodian shall be liable to the Trust for any loss or damage to the Fund
resulting from (i) the use of a Book-Entry System or Securities Depository by
reason of any negligence or willful misconduct on the part of the Custodian or
any Sub-Custodian, or (ii) failure of the Custodian or any Sub-Custodian to
enforce effectively such rights as it may have against a Book-Entry System or
Securities Depository. At its election, the Trust shall be subrogated to the
rights of the Custodian with respect to any claim against a Book-Entry System or
Securities Depository or any other person from any loss or damage to the Fund
arising from the use of such Book-Entry System or Securities Depository, if and
to the extent that the Fund has not been made whole for any such loss or damage.
(g) With respect to its responsibilities under this Section 3.5 and pursuant
to Rule 17f-4 under the 1940 Act, the Custodian hereby warrants to the Trust
that it agrees to (i) exercise due care in accordance with reasonable commercial
standards in discharging its duty as a securities intermediary to obtain and
thereafter maintain such assets, (ii) provide, promptly upon request by the
Trust, such reports as are available concerning the Custodian's internal
accounting controls and financial strength, and (iii) require any Sub-Custodian
to exercise due care in accordance with reasonable commercial standards in
discharging its duty as a securities intermediary to obtain and thereafter
maintain assets corresponding to the security entitlements of its entitlement
holders.
3.06 Disbursement of Moneys from Fund Custody Account. Upon receipt of
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Proper Instructions, the Custodian shall disburse moneys from the Fund Custody
Account but only in the following cases:
(a) For the purchase of Securities for the Fund but only in accordance with
Section 4.1 of this Agreement and only (i) in the case of Securities (other than
options on Securities, futures contracts and options on futures contracts),
against the delivery to the Custodian (or any Sub-Custodian) of such Securities
registered as provided in Section 3.9 below or in proper form for transfer, or
if the purchase of such Securities is effected through a Book-Entry System or
Securities Depository, in accordance with the conditions set forth in Section
3.5 above; (ii) in the case of options on Securities, against delivery to the
Custodian (or any Sub-Custodian) of such receipts as are required by the customs
prevailing among dealers in such options; (iii) in the case of futures contracts
and options on futures contracts, against delivery to the Custodian (or any
Sub-Custodian) of evidence of title thereto in favor of the Fund or any nominee
referred to in Section 3.9 below; and (iv) in the case of repurchase or reverse
repurchase agreements entered into between the Trust and a bank which is a
member of the Federal Reserve System or between the Trust and a primary dealer
in U.S. Government securities, against delivery of the purchased Securities
either in certificate form or through an entry crediting the Custodian's account
at a Book-Entry System or Securities Depository with such Securities;
(b) In connection with the conversion, exchange or surrender, as set forth
in Section 3.7(f) below, of Securities owned by the Fund;
(c) For the payment of any dividends or capital gain distributions declared
by the Fund;
(d) In payment of the redemption price of Shares as provided in Section 5.1
below;
(e) For the payment of any expense or liability incurred by the Fund,
including, but not limited to, the following payments for the account of the
Fund: interest; taxes; administration, investment advisory, accounting,
auditing, transfer agent, custodian, director and legal fees; and other
operating expenses of the Fund; in all cases, whether or not such expenses are
to be in whole or in part capitalized or treated as deferred expenses;
(f) For transfer in accordance with the provisions of any agreement among
the Trust, the Custodian and a broker-dealer registered under the 1934 Act and a
member of FINRA, relating to compliance with rules of the Options Clearing
Corporation and of any registered national securities exchange (or of any
similar organization or organizations) regarding escrow or other arrangements in
connection with transactions by the Fund;
(g) For transfer in accordance with the provisions of any agreement among
the Trust, the Custodian and a futures commission merchant registered under the
Commodity Exchange Act, relating to compliance with the rules of the Commodity
Futures Trading Commission and/or any contract market (or any similar
organization or organizations) regarding account deposits in connection with
transactions by the Fund;
(h) For the funding of any uncertificated time deposit or other
interest-bearing account with any banking institution (including the Custodian),
which deposit or account has a term of one year or less; and
(i) For any other proper purpose, but only upon receipt, in addition to
Proper Instructions, of a copy of a resolution of the Board of Trustees,
certified by an Officer, specifying the amount and purpose of such payment,
declaring such purpose to be a proper corporate purpose, and naming the person
or persons to whom such payment is to be made.
3.07 Delivery of Securities from Fund Custody Account. Upon receipt of
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Proper Instructions, the Custodian shall release and deliver, or cause the
Sub-Custodian to release and deliver, Securities from the Fund Custody Account
but only in the following cases:
(a) Upon the sale of Securities for the account of the Fund but only against
receipt of payment therefor in cash, by certified or cashiers check or bank
credit;
(b) In the case of a sale effected through a Book-Entry System or Securities
Depository, in accordance with the provisions of Section 3.5 above;
(c) To an offeror's depository agent in connection with tender or other
similar offers for Securities of the Fund; provided that, in any such case, the
cash or other consideration is to be delivered to the Custodian;
(d) To the issuer thereof or its agent (i) for transfer into the name of the
Fund, the Custodian or any Sub-Custodian, or any nominee or nominees of any of
the foregoing, or (ii) for exchange for a different number of certificates or
other evidence representing the same aggregate face amount or number of units;
provided that, in any such case, the new Securities are to be delivered to the
Custodian;
(e) To the broker selling the Securities, for examination in accordance with
the "street delivery" custom;
(f) For exchange or conversion pursuant to any plan of merger,
consolidation, recapitalization, reorganization or readjustment of the issuer of
such Securities, or pursuant to provisions for conversion contained in such
Securities, or pursuant to any deposit agreement, including surrender or receipt
of underlying Securities in connection with the issuance or cancellation of
depository receipts; provided that, in any such case, the new Securities and
cash, if any, are to be delivered to the Custodian;
(g) Upon receipt of payment therefor pursuant to any repurchase or reverse
repurchase agreement entered into by the Fund;
(h) In the case of warrants, rights or similar Securities, upon the exercise
thereof, provided that, in any such case, the new Securities and cash, if any,
are to be delivered to the Custodian;
(i) For delivery in connection with any loans of Securities of the Fund, but
only against receipt of such collateral as the Trust shall have specified to the
Custodian in Proper Instructions;
(j) For delivery as security in connection with any borrowings by the Fund
requiring a pledge of assets by the Trust, but only against receipt by the
Custodian of the amounts borrowed;
(k) Pursuant to any authorized plan of liquidation, reorganization, merger,
consolidation or recapitalization of the Trust;
(l) For delivery in accordance with the provisions of any agreement among
the Trust, the Custodian and a broker-dealer registered under the 1934 Act and a
member of FINRA, relating to compliance with the rules of the Options Clearing
Corporation and of any registered national securities exchange (or of any
similar organization or organizations) regarding escrow or other arrangements in
connection with transactions by the Fund;
(m) For delivery in accordance with the provisions of any agreement among
the Trust, the Custodian and a futures commission merchant registered under the
Commodity Exchange Act, relating to compliance with the rules of the Commodity
Futures Trading Commission and/or any contract market (or any similar
organization or organizations) regarding account deposits in connection with
transactions by the Fund;
(n) For any other proper corporate purpose, but only upon receipt, in
addition to Proper Instructions, of a copy of a resolution of the Board of
Trustees, certified by an Officer, 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 corporate purpose, and naming the person or persons to
whom delivery of such Securities shall be made; or
(o) To brokers, clearing banks or other clearing agents for examination or
trade execution in accordance with market custom; provided that in any such case
the Custodian shall have no responsibility or liability for any loss arising
from the delivery of such securities prior to receiving payment for such
securities except as may arise from the Custodian's own negligence or willful
misconduct.
3.08 Actions Not Requiring Proper Instructions. Unless otherwise instructed
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by the Trust, the Custodian shall with respect to all Securities held for the
Fund:
(a) Subject to Section 9.4 below, collect on a timely basis all income and
other payments to which the Fund is entitled either by law or pursuant to custom
in the securities business;
(b) Present for payment and, subject to Section 9.4 below, collect on a
timely basis the amount payable upon all Securities which may mature or be
called, redeemed, or retired, or otherwise become payable;
(c) Endorse for collection, in the name of the Fund, checks, drafts and
other negotiable instruments;
(d) Surrender interim receipts or Securities in temporary form for
Securities in definitive form;
(e) Execute, as custodian, 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 prepare and submit
reports to the IRS and the Trust at such time, in such manner and containing
such information as is prescribed by the IRS;
(f) Hold for the Fund, either directly or, with respect to Securities held
therein, through a Book-Entry System or Securities Depository, all rights and
similar Securities issued with respect to Securities of the Fund; and
(g) In general, and except as otherwise directed in Proper Instructions,
attend to all non-discretionary details in connection with the sale, exchange,
substitution, purchase, transfer and other dealings with Securities and other
assets of the Fund.
3.09 Registration and Transfer of Securities. All Securities held for the
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Fund that are issued or issuable only in bearer form shall be held by the
Custodian in that form, provided that any such Securities shall be held in a
Book-Entry System if eligible therefor. All other Securities held for the Fund
may be registered in the name of the Fund, the Custodian, a Sub-Custodian or any
nominee thereof, or in the name of a Book-Entry System, Securities Depository or
any nominee of either thereof. The records of the Custodian with respect to
foreign securities of the Fund that are maintained with a Sub-Custodian in an
account that is identified as belonging to the Custodian for the benefit of its
customers shall identify those securities as belonging to the Fund. The Trust
shall furnish to the Custodian appropriate instruments to enable the Custodian
to hold or deliver in proper form for transfer, or to register in the name of
any of the nominees referred to above or in the name of a Book-Entry System or
Securities Depository, any Securities registered in the name of the Fund.
3.10 Records.
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(a) The Custodian shall maintain complete and accurate records with respect
to Securities, cash or other property held for the Fund, including (i) journals
or other records of original entry containing an itemized daily record in detail
of all receipts and deliveries of Securities and all receipts and disbursements
of cash; (ii) ledgers (or other records) reflecting (A) Securities in transfer,
(B) Securities in physical possession, (C) monies and Securities borrowed and
monies and Securities loaned (together with a record of the collateral therefor
and substitutions of such collateral), (D) dividends and interest received, and
(E) dividends receivable and interest receivable; (iii) canceled checks and bank
records related thereto; and (iv) all records relating to its activities and
obligations under this Agreement. The Custodian shall keep such other books and
records of the Fund as the Trust shall reasonably request, or as may be required
by the 1940 Act, including, but not limited to, Section 31 of the 1940 Act and
Rule 31a-2 promulgated thereunder.
(b) All such books and records maintained by the Custodian shall (i) be
maintained in a form acceptable to the Trust and in compliance with the rules
and regulations of the SEC, (ii) be the property of the Trust and at all times
during the regular business hours of the Custodian be made available upon
request for inspection by duly authorized officers, employees or agents of the
Trust and employees or agents of the SEC, and (iii) if required to be maintained
by Rule 31a-1 under the 1940 Act, be preserved for the periods prescribed in
Rules 31a-1 and 31a-2 under the 1940 Act.
3.11 Fund Reports by Custodian. The Custodian shall furnish the Trust with
-------------------------
a daily activity statement and a summary of all transfers to or from each Fund
Custody Account on the day following such transfers. At least monthly, the
Custodian shall furnish the Trust with a detailed statement of the Securities
and moneys held by the Custodian and the Sub-Custodians for the Fund under this
Agreement.
3.12 Other Reports by Custodian. As the Trust may reasonably request from
--------------------------
time to time, the Custodian shall provide the Trust with reports on the internal
accounting controls and procedures for safeguarding Securities which are
employed by the Custodian or any Sub-Custodian.
3.13 Proxies and Other Materials. The Custodian shall cause all proxies
---------------------------
relating to Securities which are not registered in the name of the Fund to be
promptly executed by the registered holder of such Securities, without
indication of the manner in which such proxies are to be voted, and shall
promptly deliver to the Trust such proxies, all proxy soliciting materials and
all notices relating to such Securities. With respect to the foreign
Securities, the Custodian will use reasonable commercial efforts to facilitate
the exercise of voting and other shareholder rights, subject to the laws,
regulations and practical constraints that may exist in the country where such
securities are issued. The Trust acknowledges that local conditions, including
lack of regulation, onerous procedural obligations, lack of notice and other
factors may have the effect of severely limiting the ability of the Trust to
exercise shareholder rights.
3.14 Information on Corporate Actions. The Custodian shall promptly deliver
--------------------------------
to the Trust all information received by the Custodian and pertaining to
Securities being held by the Fund with respect to optional tender or exchange
offers, calls for redemption or purchase, or expiration of rights as described
in the Standards of Service Guide attached as Exhibit B. If the Trust desires
---------
to take action with respect to any tender offer, exchange offer or other similar
transaction, the Trust shall notify the Custodian at least three Business Days
prior to the date on which the Custodian is to take such action. The Trust will
provide or cause to be provided to the Custodian all relevant information for
any Security which has unique put/option provisions at least three Business Days
prior to the beginning date of the tender period.
ARTICLE IV.
PURCHASE AND CITYPLACESALE OF INVESTMENTS OF THE FUND
4.01 Purchase of Securities. Promptly upon each purchase of Securities for
----------------------
the Fund, Written Instructions shall be delivered to the Custodian, specifying
(i) the name of the issuer or writer of such Securities, and the title or other
description thereof, (ii) the number of shares, principal amount (and accrued
interest, if any) or other units purchased, (iii) the date of purchase and
settlement, (iv) the purchase price per unit, (v) the total amount payable upon
such purchase, and (vi) the name of the person to whom such amount is payable.
The Custodian shall upon receipt of such Securities purchased by the Fund pay
out of the moneys held for the account of the Fund the total amount specified in
such Written Instructions to the person named therein. The Custodian shall not
be under any obligation to pay out moneys to cover the cost of a purchase of
Securities for the Fund, if in the Fund Custody Account there is insufficient
cash available to the Fund for which such purchase was made.
4.02 Liability for Payment in Advance of Receipt of Securities Purchased.
-------------------------------------------------------------------
In any and every case where payment for the purchase of Securities for the Fund
is made by the Custodian in advance of receipt of the Securities purchased and
in the absence of specified Written Instructions to so pay in advance, the
Custodian shall be liable to the Fund for such payment.
Cityplace4.03 Sale of Securities. Promptly upon each sale of Securities by
------------------
the Fund, Written Instructions shall be delivered to the Custodian, specifying
(i) the name of the issuer or writer of such Securities, and the title or other
description thereof, (ii) the number of shares, principal amount (and accrued
interest, if any), or other units sold, (iii) the date of sale and settlement,
(iv) the sale price per unit, (v) the total amount payable upon such sale, and
(vi) the person to whom such Securities are to be delivered. Upon receipt of
the total amount payable to the Fund as specified in such Written Instructions,
the Custodian shall deliver such Securities to the person specified in such
Written Instructions. Subject to the foregoing, the Custodian may accept
payment in such form as shall be satisfactory to it, and may deliver Securities
and arrange for payment in accordance with the customs prevailing among dealers
in Securities.
4.04 Delivery of Securities Sold. Notwithstanding Section 4.3 above or any
---------------------------
other provision of this Agreement, the Custodian, when instructed to deliver
Securities against payment, shall be entitled, if in accordance with generally
accepted market practice, to deliver such Securities prior to actual receipt of
final payment therefor. In any such case, the Fund shall bear the risk that
final payment for such Securities may not be made or that such Securities may be
returned or otherwise held or disposed of by or through the person to whom they
were delivered, and the Custodian shall have no liability for any for the
foregoing.
4.05 Payment for Securities Sold. In its sole discretion and from time to
---------------------------
time, the Custodian may credit the Fund Custody Account, prior to actual receipt
of final payment thereof, with (i) proceeds from the sale of Securities which it
has been instructed to deliver against payment, (ii) proceeds from the
redemption of Securities or other assets of the Fund, and (iii) income from
cash, Securities or other assets of the Fund. Any such credit shall be
conditional upon actual receipt by Custodian of final payment and may be
reversed if final payment is not actually received in full. The Custodian may,
in its sole discretion and from time to time, permit the Fund to use funds so
credited to the Fund Custody Account in anticipation of actual receipt of final
payment. Any such funds shall be repayable immediately upon demand made by the
Custodian at any time prior to the actual receipt of all final payments in
anticipation of which funds were credited to the Fund Custody Account.
4.06 Advances by Custodian for Settlement. The Custodian may, in its sole
------------------------------------
discretion and from time to time, advance funds to the Trust to facilitate the
settlement of a Fund's transactions in the Fund Custody Account. Any such
advance shall be repayable immediately upon demand made by Custodian.
ARTICLE V.
REDEMPTION OF FUND SHARES
5.01 Transfer of Funds. From such funds as may be available for the purpose
-----------------
in the relevant Fund Custody Account, and upon receipt of Proper Instructions
specifying that the funds are required to redeem Shares of the Fund, the
Custodian shall wire each amount specified in such Proper Instructions to or
through such bank or broker-dealer as the Trust may designate.
5.02 No Duty Regarding Paying Banks. Once the Custodian has wired amounts
------------------------------
to a bank or broker-dealer pursuant to Section 5.1 above, the Custodian shall
not be under any obligation to effect any further payment or distribution by
such bank or broker-dealer.
ARTICLE VI.
SEGREGATED ACCOUNTS
Upon receipt of Proper Instructions, the Custodian shall establish and maintain
a segregated account or accounts for and on behalf of the Fund, into which
account or accounts may be transferred cash and/or Securities, including
Securities maintained in a Depository Account:
(a) in accordance with the provisions of any agreement among the Trust, the
Custodian and a broker-dealer registered under the 1934 Act and a member of
FINRA (or any futures commission merchant registered under the Commodity
Exchange Act), relating to compliance with the rules of the Options Clearing
Corporation and of any registered national securities exchange (or the Commodity
Futures Trading Commission or any registered contract market), or of any similar
organization or organizations, regarding escrow or other arrangements in
connection with transactions by the Fund;
(b) for purposes of segregating cash or Securities in connection with
securities options purchased or written by the Fund or in connection with
financial futures contracts (or options thereon) purchased or sold by the Fund;
(c) which constitute collateral for loans of Securities made by the Fund;
(d) for purposes of compliance by the Fund with requirements under the 1940
Act for the maintenance of segregated accounts by registered investment
companies in connection with reverse repurchase agreements and when-issued,
delayed delivery and firm commitment transactions; and
(e) for other proper corporate purposes, but only upon receipt of, in
addition to Proper Instructions, a certified copy of a resolution of the Board
of Trustees, certified by an Officer, setting forth the purpose or purposes of
such segregated account and declaring such purposes to be proper corporate
purposes.
Each segregated account established under this Article VI shall be established
and maintained for the Fund only. All Proper Instructions relating to a
segregated account shall specify the Fund.
ARTICLE VII.
COMPENSATION OF CUSTODIAN
7.01 Compensation. The Custodian shall be compensated for providing the
------------
services set forth in this Agreement in accordance with the fee schedule set
forth on Exhibit D hereto (as amended from time to time). The Custodian shall
---------
also be compensated for such out-of-pocket expenses (e.g., telecommunication
charges, postage and delivery charges, and reproduction charges) as are
reasonably incurred by the Custodian in performing its duties hereunder. The
Trust shall pay all such fees and reimbursable expenses within 30 calendar days
following receipt of the billing notice, except for any fee or expense subject
to a good faith dispute. The Trust shall notify the Custodian in writing within
30 calendar days following receipt of each invoice if the Trust is disputing any
amounts in good faith. The Trust shall pay such disputed amounts within 10
calendar days of the day on which the parties agree to the amount to be paid.
With the exception of any fee or expense the Trust is disputing in good faith as
set forth above, unpaid invoices shall accrue a finance charge of 1 % per month
after the due date. Notwithstanding anything to the contrary, amounts owed by
the Trust to the Custodian shall only be paid out of the assets and property of
the particular Fund involved.
7.02 Overdrafts. The Trust is responsible for maintaining an appropriate
----------
level of short term cash investments to accommodate cash outflows. The Trust
may obtain formal line of credit for potential overdrafts of its custody
account. In the event of an overdraft or in the event the line of credit is
insufficient to cover an overdraft, the overdraft amount or the overdraft amount
that exceeds the line of credit will be charged in accordance with the fee
schedule set forth on Exhibit D hereto (as amended from time to time)
ARTICLE VIII.
REPRESENTATIONS AND WARRANTIES
8.01 Representations and Warranties of the Trust. The Trust hereby
-------------------------------------------
represents and warrants to the Custodian, which representations and warranties
shall be deemed to be continuing throughout the term of this Agreement, that:
(a) It is duly organized and existing under the laws of the jurisdiction of
its organization, with full power to carry on its business as now conducted, to
enter into this Agreement and to perform its obligations hereunder;
(b) This Agreement has been duly authorized, executed and delivered by the
Trust in accordance with all requisite action and constitutes a valid and
legally binding obligation of the Trust, enforceable in accordance with its
terms, subject to bankruptcy, insolvency, reorganization, moratorium and other
laws of general application affecting the rights and remedies of creditors and
secured parties; and
(c) It is conducting its business in compliance in all material respects
with all applicable laws and regulations, both state and federal, and has
obtained all regulatory approvals necessary to carry on its business as now
conducted; there is no statute, rule, regulation, order or judgment binding on
it and no provision of its charter, bylaws or any contract binding it or
affecting its property which would prohibit its execution or performance of this
Agreement.
8.02 Representations and Warranties of the Custodian. The Custodian hereby
-----------------------------------------------
represents and warrants to the Trust, which representations and warranties shall
be deemed to be continuing throughout the term of this Agreement, that:
(a) It is duly organized and existing under the laws of the jurisdiction of
its organization, with full power to carry on its business as now conducted, to
enter into this Agreement and to perform its obligations hereunder;
(b) It is a U.S. Bank as defined in section (a)(7) of Rule 17f-5.
(c) This Agreement has been duly authorized, executed and delivered by the
Custodian in accordance with all requisite action and constitutes a valid and
legally binding obligation of the Custodian, enforceable in accordance with its
terms, subject to bankruptcy, insolvency, reorganization, moratorium and other
laws of general application affecting the rights and remedies of creditors and
secured parties; and
(d) It is conducting its business in compliance in all material respects
with all applicable laws and regulations, both state and federal, and has
obtained all regulatory approvals necessary to carry on its business as now
conducted; there is no statute, rule, regulation, order or judgment binding on
it and no provision of its charter, bylaws or any contract binding it or
affecting its property which would prohibit its execution or performance of this
Agreement.
ARTICLE IX.
CONCERNING THE CUSTODIAN
9.01 Standard of Care. The Custodian shall exercise reasonable care in the
----------------
performance of its duties under this Agreement. The Custodian shall not be
liable for any error of judgment or mistake of law or for any loss suffered by
the Trust in connection with its duties under this Agreement, except a loss
arising out of or relating to the Custodian's (or a Sub-Custodian's) refusal or
failure to comply with the terms of this Agreement (or any sub-custody
agreement) or from its (or a Sub-Custodian's) bad faith, negligence or willful
misconduct in the performance of its duties under this Agreement (or any
sub-custody agreement). The Custodian shall be entitled to rely on and may act
upon advice of counsel on all matters, and shall be without liability for any
action reasonably taken or omitted pursuant to such advice. The Custodian shall
promptly notify the Trust of any action taken or omitted by the Custodian
pursuant to advice of counsel.
9.02 Actual Collection Required. The Custodian shall not be liable for, or
--------------------------
considered to be the custodian of, any cash belonging to the Fund or any money
represented by a check, draft or other instrument for the payment of money,
until the Custodian or its agents actually receive such cash or collect on such
instrument.
9.03 No Responsibility for Title, etc. So long as and to the extent that it
---------------------------------
is in the exercise of reasonable care, the Custodian shall not be responsible
for the title, validity or genuineness of any property or evidence of title
thereto received or delivered by it pursuant to this Agreement.
9.04 Limitation on Duty to Collect. Custodian shall not be required to
-----------------------------
enforce collection, by legal means or otherwise, of any money or property due
and payable with respect to Securities held for the Fund if such Securities are
in default or payment is not made after due demand or presentation.
9.05 Reliance Upon Documents and Instructions. The Custodian shall be
----------------------------------------
entitled to rely upon any certificate, notice or other instrument in writing
received by it and reasonably believed by it to be genuine. The Custodian shall
be entitled to rely upon any Oral Instructions and any Written Instructions
actually received by it pursuant to this Agreement.
9.06 Cooperation. The Custodian shall cooperate with and supply necessary
-----------
information to the entity or entities appointed by the Trust to keep the books
of account of the Fund and/or compute the value of the assets of the Fund. The
Custodian shall take all such reasonable actions as the Trust may from time to
time request to enable the Trust to obtain, from year to year, favorable
opinions from the Trust's independent accountants with respect to the
Custodian's activities hereunder in connection with (i) the preparation of the
Trust's reports on Form N-1A and Form N-SAR and any other reports required by
the SEC, and (ii) the fulfillment by the Trust of any other requirements of the
SEC.
ARTICLE X.
INDEMNIFICATION
10.01 Indemnification by Trust. The Trust shall indemnify and hold harmless
------------------------
the Custodian, any Sub-Custodian and any nominee thereof (each, an "Indemnified
Party" and collectively, the "Indemnified Parties") from and against any and all
claims, demands, losses, expenses and liabilities of any and every nature
(including reasonable attorneys' fees) that an Indemnified Party may sustain or
incur or that may be asserted against an Indemnified Party by any person arising
directly or indirectly (i) from the fact that Securities are registered in the
name of any such nominee, (ii) from any action taken or omitted to be taken by
the Custodian or such Sub-Custodian (a) at the request or direction of or in
reliance on the advice of the Trust, or (b) upon Proper Instructions, or (iii)
from the performance of its obligations under this Agreement or any sub-custody
agreement, provided that neither the Custodian nor any such Sub-Custodian shall
be indemnified and held harmless from and against any such claim, demand, loss,
expense or liability arising out of or relating to its refusal or failure to
comply with the terms of this Agreement (or any sub-custody agreement), or from
its bad faith, negligence or willful misconduct in the performance of its duties
under this Agreement (or any sub-custody agreement). This indemnity shall be a
continuing obligation of the Trust, its successors and assigns, notwithstanding
the termination of this Agreement. As used in this paragraph, the terms
"Custodian" and "Sub-Custodian" shall include their respective directors,
officers and employees.
10.02 Indemnification by Custodian. The Custodian shall indemnify and hold
----------------------------
harmless the Trust from and against any and all claims, demands, losses,
expenses, and liabilities of any and every nature (including reasonable
attorneys' fees) that the Trust may sustain or incur or that may be asserted
against the Trust by any person arising directly or indirectly out of any action
taken or omitted to be taken by an Indemnified Party as a result of the
Indemnified Party's refusal or failure to comply with the terms of this
Agreement (or any sub-custody agreement), or from its bad faith, negligence or
willful misconduct in the performance of its duties under this Agreement (or any
sub-custody agreement). This indemnity shall be a continuing obligation of the
Custodian, its successors and assigns, notwithstanding the termination of this
Agreement. As used in this paragraph, the term "Trust" shall include the
Trust's trustees, officers and employees.
10.03 Security. If the Custodian advances cash or Securities to the Fund
--------
for any purpose, either at the Trust's request or as otherwise contemplated in
this Agreement, or in the event that the Custodian or its nominee incurs, in
connection with its performance under this Agreement, any claim, demand, loss,
expense or liability (including reasonable attorneys' fees) (except such as may
arise from its or its nominee's bad faith, negligence or willful misconduct),
then, in any such event, any property at any time held for the account of the
Fund shall be security therefor, and should the Fund fail promptly to repay or
indemnify the Custodian, the Custodian shall be entitled to utilize available
cash of such Fund and to dispose of other assets of such Fund to the extent
necessary to obtain reimbursement or indemnification.
10.04 Miscellaneous.
(a) Neither party to this Agreement shall be liable to the other party for
consequential, special or punitive damages under any provision of this
Agreement.
(b) The indemnity provisions of this Article shall indefinitely survive the
termination and/or assignment of this Agreement.
(c) In order that the indemnification provisions contained in this Article
shall apply, it is understood that if in any case the indemnitor may be asked to
indemnify or hold the indemnitee harmless, the indemnitor shall be fully and
promptly advised of all pertinent facts concerning the situation in question,
and it is further understood that the indemnitee will use all reasonable care to
notify the indemnitor promptly concerning any situation that presents or appears
likely to present the probability of a claim for indemnification. The indemnitor
shall have the option to defend the indemnitee against any claim that may be the
subject of this indemnification. In the event that the indemnitor so elects, it
will so notify the indemnitee and thereupon the indemnitor shall take over
complete defense of the claim, and the indemnitee shall in such situation
initiate no further legal or other expenses for which it shall seek
indemnification under this section. The indemnitee shall in no case confess any
claim or make any compromise in any case in which the indemnitor will be asked
to indemnify the indemnitee except with the indemnitor's prior written consent.
ARTICLE XI.
FORCE MAJEURE
Neither the Custodian nor the Trust shall be liable for any failure or
delay in performance of its obligations under this Agreement arising out of or
caused, directly or indirectly, by circumstances beyond its reasonable control,
including, without limitation, acts of God; earthquakes; fires; floods; wars;
civil or military disturbances; acts of terrorism; sabotage; strikes; epidemics;
riots; power failures; computer failure and any such circumstances beyond its
reasonable control as may cause interruption, loss or malfunction of utility,
transportation, computer (hardware or software) or telephone communication
service; accidents; labor disputes; acts of civil or military authority;
governmental actions; or inability to obtain labor, material, equipment or
transportation; provided, however, that in the event of a failure or delay, the
Custodian (i) shall not discriminate against the Fund in favor of any other
customer of the Custodian in making computer time and personnel available to
input or process the transactions contemplated by this Agreement, and (ii) shall
use its best efforts to ameliorate the effects of any such failure or delay.
ARTICLE XII.
PROPRIETARY AND CONFIDENTIAL INFORMATION
12.01 The Custodian agrees on behalf of itself and its directors, officers,
and employees to treat confidentially and as proprietary information of the
Trust, all records and other information relative to the Trust and prior,
present, or potential shareholders of the Trust (and clients of said
shareholders), and not to use such records and information for any purpose other
than the performance of its responsibilities and duties hereunder, except (i)
after prior notification to and approval in writing by the Trust, which approval
shall not be unreasonably withheld and may not be withheld where the Custodian
may be exposed to civil or criminal contempt proceedings for failure to comply,
(ii) when requested to divulge such information by duly constituted authorities,
or (iii) when so requested by the Trust. Records and other information which
have become known to the public through no wrongful act of the Custodian or any
of its employees, agents or representatives, and information that was already in
the possession of the Custodian prior to receipt thereof from the Trust or its
agent, shall not be subject to this paragraph.
12.02 Further, the Custodian will adhere to the privacy policies adopted by
the Trust pursuant to Title V of the Xxxxx-Xxxxx-Xxxxxx Act, as may be modified
from time to time. In this regard, the Custodian shall have in place and
maintain physical, electronic and procedural safeguards reasonably designed to
protect the security, confidentiality and integrity of, and to prevent
unauthorized access to or use of, records and information relating to the Trust
and its shareholders.
ARTICLE XIII.
EFFECTIVE PERIOD; TERMINATION
13.01 Effective Period. This Agreement shall become effective as of the
----------------
date first written above.
13.02 Termination. This Agreement may be terminated by either party upon
-----------
giving 90 days prior written notice to the other party or such shorter period as
is mutually agreed upon by the parties. Notwithstanding the foregoing, this
Agreement may be terminated by any party upon the breach of the other party of
any material term of this Agreement if such breach is not cured within 15 days
of notice of such breach to the breaching party. In addition, the Trust may, at
any time, immediately terminate this Agreement in the event of the appointment
of a conservator or receiver for the Custodian by regulatory authorities or upon
the happening of a like event at the direction of an appropriate regulatory
agency or court of competent jurisdiction.
13.03 Appointment of Successor Custodian. If a successor custodian shall
----------------------------------
have been appointed by the Board of Trustees, the Custodian shall, upon receipt
of a notice of acceptance by the successor custodian, on such specified date of
termination (i) deliver directly to the successor custodian all Securities
(other than Securities held in a Book-Entry System or Securities Depository) and
cash then owned by the Fund and held by the Custodian as custodian, and (ii)
transfer any Securities held in a Book-Entry System or Securities Depository to
an account of or for the benefit of the Fund at the successor custodian,
provided that the Trust shall have paid to the Custodian all fees, expenses and
other amounts to the payment or reimbursement of which it shall then be
entitled. In addition, the Custodian shall, at the expense of the Trust,
transfer to such successor all relevant books, records, correspondence, and
other data established or maintained by the Custodian under this Agreement in a
form reasonably acceptable to the Trust (if such form differs from the form in
which the Custodian has maintained the same, the Trust shall pay any expenses
associated with transferring the data to such form), and will cooperate in the
transfer of such duties and responsibilities, including provision for assistance
from the Custodian's personnel in the establishment of books, records, and other
data by such successor. Upon such delivery and transfer, the Custodian shall be
relieved of all obligations under this Agreement.
13.04 Failure to Appoint Successor Custodian. If a successor custodian is
--------------------------------------
not designated by the Trust on or before the date of termination of this
Agreement, then the Custodian shall have the right to deliver to a bank or trust
company of its own selection, which bank or trust company (i) is a "bank" as
defined in the 1940 Act, and (ii) has aggregate capital, surplus and undivided
profits as shown on its most recent published report of not less than $25
million, all Securities, cash and other property held by Custodian under this
Agreement and to transfer to an account of or for the Fund at such bank or trust
company all Securities of the Fund held in a Book-Entry System or Securities
Depository. Upon such delivery and transfer, such bank or trust company shall
be the successor custodian under this Agreement and the Custodian shall be
relieved of all obligations under this Agreement. In addition, under these
circumstances, all books, records and other data of the Trust shall be returned
to the Trust.
ARTICLE XIV.
CLASS ACTIONS
The Custodian shall use its best efforts to identify and file claims for the
Fund(s) involving any class action litigation that impacts any security the
Fund(s) may have held during the class period. The Trust agrees that the
Custodian may file such claims on its behalf and understands that it may be
waiving and/or releasing certain rights to make claims or otherwise pursue class
action defendants who settle their claims. Further, the Trust acknowledges that
there is no guarantee these claims will result in any payment or partial payment
of potential class action proceeds and that the timing of such payment, if any,
is uncertain.
However, the Trust may instruct the Custodian to distribute class action notices
and other relevant documentation to the Fund(s) or its designee and, if it so
elects, will relieve the Custodian from any and all liability and responsibility
for filing class action claims on behalf of the Fund(s).
In the event the Fund(s) are closed, the Custodian shall only file the class
action claims upon written instructions by an authorized representative of the
closed Fund(s). Any expenses associated with such filing will be assessed
against the proceeds received of any class action settlement.
ARTICLE XV.
MISCELLANEOUS
15.01 Compliance with Laws. The Trust has and retains primary
--------------------
responsibility for all compliance matters relating to the Fund, including but
not limited to compliance with the 1940 Act, the Internal Revenue Code of 1986,
the Xxxxxxxx-Xxxxx Act of 2002, the USA Patriot Act of 2001 and the policies and
limitations of the Fund relating to its portfolio investments as set forth in
its Prospectus and statement of additional information. The Custodian's
services hereunder shall not relieve the Trust of its responsibilities for
assuring such compliance or the Board of Trustee's oversight responsibility with
respect thereto.
15.02 Amendment. This Agreement may not be amended or modified in any manner
---------
except by written agreement executed by the Custodian and the Trust, and
authorized or approved by the Board of Trustees.
15.03 Assignment. This Agreement shall extend to and 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 Custodian, or by the Custodian without the written consent of the
Trust accompanied by the authorization or approval of the Board of Trustees.
15.04 Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the State of StateplaceOhio, without regard to
conflicts of law principles. To the extent that the applicable laws of the
State of Ohio, or any of the provisions herein, conflict with the applicable
provisions of the 1940 Act, the latter shall control, and nothing herein shall
be construed in a manner inconsistent with the 1940 Act or any rule or order of
the SEC thereunder.
15.05 No Agency Relationship. Nothing herein contained shall be deemed to
----------------------
authorize or empower either party to act as agent for the other party to this
Agreement, or to conduct business in the name, or for the account, of the other
party to this Agreement.
15.06 Services Not Exclusive. Nothing in this Agreement shall limit or
----------------------
restrict the Custodian from providing services to other parties that are similar
or identical to some or all of the services provided hereunder.
15.07 Invalidity. Any provision of this Agreement which may be determined
-----------
by competent authority to be prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such prohibition
or unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction. In
such case, the parties shall in good faith modify or substitute such provision
consistent with the original intent of the parties.
15.08 Notices. Any notice required or permitted to be given by either party
-------
to the other shall be in writing and shall be deemed to have been given on the
date delivered personally or by courier service, or three days after sent by
registered or certified mail, postage prepaid, return receipt requested, or on
the date sent and confirmed received by facsimile transmission to the other
party's address set forth below:
Notice to the Custodian shall be sent to:
U.S Bank, N.A.
addressStreet1555 N. Rivercenter Dr., MK-WI-S302
CityplaceMilwaukee, StateWI PostalCode53212
Attn: Xxx Xxxxxx
Phone: 000-000-0000
Fax: 000-000-0000
and notice to the Trust shall be sent to:
PC&J Performance Fund
addressStreet120 Xxxx Xxxxx Xxxxxx, Xxxxx 000
XxxxxxxxxXxxxxx, XxxxxXX XxxxxxXxxx00000-0000
15.09 Multiple Originals. This Agreement may be executed on two or more
------------------
counterparts, each of which when so executed shall be deemed an original, but
such counterparts shall together constitute but one and the same instrument.
15.10 No Waiver. No failure by either party hereto to exercise, and no delay
---------
by such party in exercising, any right hereunder shall operate as a waiver
thereof. The exercise by either party hereto of any right hereunder shall not
preclude the exercise of any other right, and the remedies provided herein are
cumulative and not exclusive of any remedies provided at law or in equity.
15.11 References to Custodian. The Trust shall not circulate any printed
-----------------------
matter which contains any reference to Custodian without the prior written
approval of Custodian, excepting printed matter contained in the prospectus or
statement of additional information for the Fund and such other printed matter
as merely identifies Custodian as custodian for the Fund. The Trust shall
submit printed matter requiring approval to Custodian in draft form, allowing
sufficient time for review by Custodian and its counsel prior to any deadline
for printing.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by a duly authorized officer on one or more counterparts as of the date
first above written.
PC&J PERFORMANCE FUND U.S. BANK NATIONAL ASSOCIATION
By: /s/________________________________ By:/s/______________________________
Name: Xxxxx X. Xxxxxxx Name: Xxxxxxx X. XxXxx
----------------
Title: President Title: Vice President
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22
1
EXHIBIT A
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AUTHORIZED PERSONS CURRENTLY ON FILE IN CITYPLACECINCINNATI
Set forth below are the names and specimen signatures of the persons
authorized by the Trust to administer the Fund Custody Accounts.
Authorized Persons Specimen Signatures
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30
24
EXHIBIT B
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U.S. BANK INSTITUTIONAL CUSTODY SERVICES
STANDARDS OF SERVICE GUIDE
U.S. Bank, N.A. ("U.S. Bank") is committed to providing superior quality
service to all customers and their agents at all times. We have compiled this
guide as a tool for our clients to determine our standards for the processing of
security settlements, payment collection, and capital change transactions.
Deadlines recited in this guide represent the times required for U.S. Bank to
guarantee processing. Failure to meet these deadlines will result in settlement
at our client's risk. In all cases, U.S. Bank will make every effort to
complete all processing on a timely basis.
U.S. Bank is a direct participant of the Depository Trust Company, a direct
member of the Federal Reserve Bank of CityplaceCleveland, and utilizes the Bank
of New York as its agent for ineligible and foreign securities.
For corporate reorganizations, U.S. Bank utilizes SEI's Reorg Source, Financial
Information, Inc., XCITEK, DTC Important Notices, Capital Changes Daily (CCH)
and the Wall Street Journal.
-------------------
For bond calls and mandatory puts, U.S. Bank utilizes SEI's Bond Source, Xxxxx
Information Systems, Standard & Poor's Corporation, XCITEK, and DTC Important
Notices. U.S. Bank will not notify clients of optional put opportunities.
Any securities delivered free to U.S. Bank or its agents must be received three
(3) business days prior to any payment or settlement in order for the U.S. Bank
standards of service to apply.
Should you have any questions regarding the information contained in this guide,
please feel free to contact your account representative.
The information contained in this Standards of Service Guide is subject to
change. Should any changes be made country-regionplaceU.S. Bank will provide
you with an updated copy of its Standards of Service Guide.
25
U.S. BANK SECURITY SETTLEMENT STANDARDS
TRANSACTION TYPE INSTRUCTIONS DEADLINES-CENTRAL TIME
Securities Eligible for DTC
- Equities
- Corporate & municipal bonds
- Commercial paper
- Medium-term notes
- Collateralized mortgage issues
- Zero coupon bonds (already at DTC) 1:00 p.m. on Settlement Date
12:30 p.m. on Settlement Date
Federal Reserve book-entry securities
(includes treasuries, agencies, GNMAs)
Bank of StateplaceNew York - physical securities 11::00 a.m. on Settlement
Date minus one
1 day prior to Settlement Date
Purchase of physical security to be held in CityplaceMilwaukee vault. Includes
private placements
CitySale of physical security held in CityplaceMilwaukee vault
Proper documents must be included if asset in customer's name 2 days prior
to Settlement Date
U.S. BANK PAYMENT STANDARDS
SECURITY TYPE INCOME PRINCIPAL
Equities Payable Date
Municipal Bonds* Payable Date Payable Date
Corporate Bonds* Payable Date Payable Date
Federal Reserve Bank Book Entry* Payable Date Payable Date
PTC GNMA's (P&I) Payable Date + 1 Payable Date + 1
CMOs *
DTC Payable Date + 1 Payable Date + 1
SBA Loan Certificates When Received When Received
Unit Investment Trust Certificates* Payable Date Payable Date
Certificates of Deposit* Payable Date + 1 Payable Date + 1
Limited Partnerships When Received When Received
Foreign Securities When Received When Received
*Variable Rate Securities
Federal Reserve Bank Book Entry Payable Date Payable Date
DTC Payable Date + 1 Payable Date + 1
NOTE: If a payable date falls on a weekend or bank holiday, payment will be
made on the immediately following business day.
27
U.S. BANK CORPORATE REORGANIZATION STANDARDS
DEADLINE FOR CLIENT INSTRUCTIONS
TYPE OF ACTION TO U.S. BANK - CENTRAL TIME
Voluntary offers including:
- Rights
- Warrants
- Election mergers
- Mandatory puts with option to retain
- Optional puts
- Voluntary tenders
- Consents
- Exchanges
- Conversions 24 hours prior to expiration
1.01
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28
EXHIBIT C
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TO THE CUSTODY AGREEMENT WITH PDC&J PERFORMANCE FUND
FUND NAMES
Name of Series
--------------
PC&J Performance Fund
EXHIBIT DTO THE CUSTODY AGREEMENT WITH PC&J PERFORMANCE FUND
---------
FEE SCHEDULE AT FEBRUARY 2009
DOMESTIC CUSTODY SERVICES
FEE SCHEDULE
ANNUAL FEE BASED UPON MARKET VALUE PER FUND FAMILY*
---------------------------------------------------
5 basis points on the first $10 million
3 basis points on balance
- Overdrafts - charged to the account at prime interest rate plus 2.
PLUS OUT-OF-POCKET EXPENSES - Including but not limited to expenses incurred in
---------------------------
the safekeeping, delivery and receipt of securities, shipping, transfer fees,
extraordinary expenses based upon complexity, and all other out-of-pocket
expenses.
Fees are billed monthly.
* Subject to annual CPI increase, Milwaukee MSA.
EXHIBIT E
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SHAREHOLDER COMMUNICATIONS ACT AUTHORIZATION ON FILE IN CITYPLACECINCINNATI
PC&J PERFORMANCE FUND
The Shareholder Communications Act of 1985 requires banks and trust companies to
make an effort to permit direct communication between a company which issues
securities and the shareholder who votes those securities.
Unless you specifically require us to NOT release your name and address to
requesting companies, we are required by law to disclose your name and address.
Your "yes" or "no" to disclosure will apply to all securities U.S. Bank holds
for you now and in the future, unless you change your mind and notify us in
writing.
______ YES U.S. Bank is authorized to provide the Trust's name, address
and security position to requesting companies whose stock is owned by the Trust.
______ NO U.S. Bank is NOT authorized to provide the Trust's name,
address and security position to requesting companies whose stock is owned by
the Trust.
PC&J PERFORMANCE FUND
By: __________________________________
Title: ________________________________
Date: ________________________________
