Exhibit (j)
FIFTH THIRD BANK [LOGO]
CUSTODY SERVICES AGREEMENT
CUSTOMER PROFILE SCHEDULE
INSTITUTION
ACCOUNT TYPE: Mutual Fund ACCOUNT NUMBER 00-00-0000000
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CUSTOMER INFORMATION
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Institution Name (Full Legal Name. DO NOT USE ABBREVIATIONS) Tax ID. Number
Xxxxxx Xxxxxxxxx, Inc 00-0000000
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Institution Contact and Title Telephone Number
Xxxxxx X. Xxxxxx, President (000) 000-0000
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Street Address of Institution City State Zip
0000 X. 0xx Xxxxxx 0xx Xxxxx Xxxxxxxxx Xxxx 00000
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ACCOUNT SERVICE INSTRUCTIONS
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TYPE OF INSTITUTION: ADDITIONAL SERVICE OPTIONS:
[ ] Insurance Company [ ] Monthly Statements
[ ] Financial Institution [ ] Quarterly Statements
[ ] Corporation [ ] Automated Securities Workstation
[ ] Partnership [ ] Other, please specify:
[ ] Investment Advisor
[ X ] Investment Company ---------------------------------
[ ] Broker Dealer
[ ] Qualified Retirement Plan ---------------------------------
[ ] Other, please specify:
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PAYMENT FOR CUSTODY SERVICES:
[ X ] Bill monthly
[ ] Charge monthly
[ ] Other, please specify:
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NAME OF INVESTMENT ADVISOR:
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(If self-directed, indicate "self-directed.")
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PROXY COMMUNICATION:
[ ] Execute all proxies in favor of management or as directed otherwise and
mail said proxies to the address specified.
[ ] Forward all proxies to the above mailing address and I will execute and
mail said proxies to the address specified.
[ ] Check this box if you object to disclosure of your name, address and
securities positions to requesting companies in which you own shares.
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FIFTH THIRD BANK IS INSTRUCTED TO HANDLE ALL EXCESS CASH IN THE FOLLOWING
MANNER:
[ ] Invest/Withdraw from the following Fifth Third Fund: [ ] Check or Wire Transfer according to the following
instructions:
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(Name of Fund)
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[ ] Credit/Charge our Fifth Third Checking or Savings account: (Address of Bank and ABA Routing Information)
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(Account Number)
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SUBSTITUTE FORM W-9 TAXPAYER IDENTIFICATION NUMBER AND CERTIFICATION
I. Enter your taxpayer identification Social Security Number Employer Identification Number
number in the appropriate box. For
individuals and sole proprietors, this - - OR 00-0000000
is your social security number. For ----------------------- ----------
other entities, it is your employer
identification number. If you do not
have a number, indicate "pending" and
report to Fifth Third upon receipt.
II. Indicate "exempt" for payees exempt from backup withholding:
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Certification - under penalties of perjury, I certify that:
(1) The number shown on this form is my correct taxpayer identification number
(or I am waiting for a number to be issued to me), and
(2) I am not subject to backup withholding because (a) I am exempt from backup
withholding, or (b) I have not been notified by the Internal Revenue Service
(IRS) that I am subject to backup withholding as a result of a failure to report
all interest or dividends, or (c) the IRS has notified me that I am no longer
subject to backup withholding (does not apply to real estate transactions,
mortgage interest paid, the acquisition or abandonment of secured property,
contributions to an individual retirement account (IRA), and payments other then
interest and dividends).
Certification Instructions - You must cross out item (2) above if you have been
notified by IRS that you are currently subject to backup withholding because of
underreporting interest or dividends on your tax return.
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CHANGES TO CUSTOMER PROFILE SCHEDULE
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Any changes to this Customer Profile Schedule will not be effective until a new
Customer Profile Schedule is executed by the Customer and, when applicable, any
other person authorized to direct the account, including an Investment Advisor.
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PERSONS AUTHORIZED TO DIRECT ACCOUNT (Including Investment Advisor when
applicable)
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Client Signature: Date: Client Signature: Date:
/s/ Xxxx X. Xxxxxx 8-30-01
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Title: Vice Chairman Title:
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Fifth Third Bank [LOGO]
CUSTODY SERVICES SCHEDULE
Custodian will perform the standard Custody Services, which are generally the
maintenance of a custodial account, in the name of and on behalf of Customer.
Custodian will notify Customer of any changes to the Custody Services that will
affect Customer at least 30 days prior to the effective date of such changes.
Capitalized terms are those as defined in the Custody Services Agreement. The
Custody Services are described as follows:
A. SAFEKEEPING. Custodian will maintain in its vault or at a Depository,
or sub-Custodian identified on its books as the property of the
custodial account(s) of Custodian, all Property which it now or
hereafter receives for the Account(s) of Customer.
B. TRADING. Custodian will, upon Proper Instructions of Customer, sell,
assign, transfer, deliver, purchase or acquire securities or other
property for the Account of Customer.
C. DEPOSITS OR WITHDRAWALS. Custodian will, upon Proper Instructions of
Customer or authorized agent: (a) deliver or receive securities or
other properties; and (b) transfer or make payments from the Account of
such cash or securities to such person(s) specified by Customer. Unless
Customer directs otherwise, excess cash will be invested in the
Custodian's Investment/Sweep Alternatives.
D. INCOME. Custodian will collect and receive all cash or property with
respect to Property as interest, dividends, proceeds from transfer, and
other payments for the Account of Customer. Custodian will convert cash
distributions denominated in foreign currency into United States
dollars at Custodian's rate for the account of Customer. In effecting
such conversion, Custodian may use such methods or agencies as it deems
necessary at the current prevailing rates.
E. CAPITAL CHANGES. Custodian will promptly notify Customer of capital
changes, limited to those securities registered in nominee name and to
those securities held at a Depository or sub-custodian acting as agent
for Custodian. Custodian will be responsible only if the notice of such
capital change is published by Xcitek, DTC, or received by registered
mail from the agent. For market announcements not yet received and
distributed by Custodian's services, Customer will provide Custodian
with appropriate instructions. Custodian will, upon receipt of
Customer's response within the required deadline, affect such action
for receipt or payment for the Account of Customer. For those responses
received after the deadline, Custodian will affect such action for
receipt or payment, subject to the limitations of the agent(s)
affecting such actions.
F. PUTS. Custodian will promptly notify Customer of put options only if
the notice is received by registered mail from the agent. Customer will
provide Custodian with all relevant information contained in the
prospectus for any security which has unique put option provisions and
provide Custodian with specific tender instructions at least ten
business days prior to the beginning date of the tender period.
G. SHAREHOLDER COMMUNICATIONS. Custodian will, as set forth in the
Customer Profile Schedule, either receive, execute or cause to be
transmitted all shareholder communications. Custodian shall respond on
behalf of the Customer to shareholder communications with respect to
any involvement in any temporary cash investment offered by Custodian.
H. RECORD RETENTION. Custodian will, at all times, maintain proper books
and records relating to the Account and such will be available for
inspection by duly authorized officers, employees, or agents of
Customer or by legally authorized regulatory officials who are then in
the process of reviewing the Customer's financial affairs upon adequate
proof to Custodian of such official status.
I. REPORTS. Custodian will provide such reports as set forth in the
Customer Profile Schedule, and notify the Customer of each transaction
confirmation or monthly statement of transactions and holdings.
J. COMMUNICATIONS. Custodian will rely on the accuracy of all data
received through electronic means and initiated by any person
authorized by Customer. In its employment of such devices, Customer
will safeguard and maintain the confidentiality of all passwords
or numbers and will disclose them only to those employees who are to
have access to the Account. Custodian may electronically record any
instructions or other telephone discussions. Custodian may
electronically record any instructions given by telephone, and any
other telephone discussions with respect to the Account or transactions
pursuant to the Agreement.
K. OVERDRAFTS. At the discretion of Custodian in cases concerning
overdrafts, the Account may be charged interest at a rate determined by
Custodian.
Fifth Third Bank [LOGO]
CUSTODY SERVICES AGREEMENT
This CUSTODY SERVICES AGREEMENT ("Agreement") is made effective as of September
17, 2001 by and between FIFTH THIRD BANK, 00 Xxxxxxxx Xxxxxx Xxxxx, XX # 0000X0,
Xxxxxxxxxx, Xxxx 00000 ("Custodian"), and the undersigned customer ("Customer").
Custodian and Customer hereby agree as follows:
1. Customer has deposited with Custodian the property listed on the receipt(s)
or as indicated on the confirmation supplied by Custodian to Customer in
connection with this Agreement, and may from time to time hereafter deposit
additional property (hereinafter the "Property"), for the purpose of obtaining
from Custodian, the Custody Services ("Services") described in the Custody
Services Schedule.
2. Customer represents and acknowledges that the description of the property
listed on the receipt(s) or confirmation is an accurate description of the
property delivered to Custodian. Securities held by Custodian shall, unless
payable to bearer, be registered in the name of the Custodian for the account of
the Customer or its nominee. Custodian may deposit all or a part of the Property
in the Depository Trust Company, or the Federal Reserve or such other
sub-custodian; (hereinafter collectively known as "Depository") but, Custodian
shall have the same responsibility to Customer regardless of where specific
property is deposited. Custodian may register that portion of the Property that
are securities in the name of a nominee of Custodian or Depository. Custodian
will segregate and identify on its books as belonging to the Customer all
Property held by Custodian or any other entity authorized to hold Property in
accordance with this Agreement.
3. Custodian shall act in the capacity as custodian with respect to the
Property, holding and controlling the Property, and assumes full responsibility
to exercise the commercially reasonable standard of care that it exercises over
its own assets in providing the Services. Custodian shall have no investment
authority, nor any duty or obligation to supervise or advise Customer on any
investments. Under no circumstances will Custodian be liable to Customer or
other persons or entities for any loss or expense arising out of this Agreement
other than in connection with any act or failure to act which constitutes
willful, intentional or reckless misconduct on the part of Custodian.
4. Customer or designated agent will pay Custodian for all fees and expenses
charged for the Services in accordance with the Fee Schedule then in effect.
Custodian will perform the Services described, which are generally the
maintenance of a custodial account, in the name of and on behalf of Customer
(the "Account"). Custodian may make changes to Services (including the Fee
Schedule) based upon, but not limited to, technological developments;
legislative, regulatory, third party depository or sub-custodian operational
changes; or the introduction of new services by Custodian. Custodian will notify
Customer of any changes to the Services that will affect Customer at least 30
days prior to the effective date of such changes. The Services shall include
those as normally provided by Custodian in its standard procedures with respect
to safekeeping, trading, deposits, withdrawals, income, corporate actions, puts,
calls, overdrafts, record retention, reports and such other items as Custodian
may offer.
5. Custodian is authorized to rely and act upon the written and manually signed
instructions ("Proper Instruction") of the person(s) identified as having
authority over the Property. Custodian is authorized to rely and act upon Proper
Instructions received from telephone, facsimile, or by bank wire which Xxxxxxxxx
believes to be in good faith given by an authorized person or agent acting on
behalf of Customer. Custodian is also authorized to rely and act upon
instructions transmitted electronically through the Institutional Delivery
System (IDS), a customer data entry system, or any other similar electronic
instruction system acceptable to the Custodian. Custodian will not be liable for
failures to execute, or failures to receive property due to incorrect,
incomplete, conflicting or untimely instructions. Custodian, in its discretion,
is authorized to accept and act upon orders from Customer, whether given orally
by telephone, or otherwise, which Custodian in good faith believes to be
genuine. Custodian's records will be conclusive as to the content of any such
instruction, whether or not confirmation is received.
6. Custodian will be authorized to take the reasonably necessary steps to
complete a transaction and will be reimbursed for all costs, losses and
liabilities if settlement is not accomplished due to Customer's failure to pay
or deliver the Property for any reason. Custodian is authorized to execute, in
the name of Customer, any certificates of ownership, declarations or other
certificates required under any tax laws or other laws or governmental
regulation now or hereafter in effect. Custodian will have the right to setoff
against the Property held by Custodian hereunder, and upon any deposit account
of Customer for the following: (i) Compensation, expenses, commitments made by
Custodian upon instructions of Customer or authorized agent; (ii) Reimbursement
of taxes incurred by Custodian for the Account of Customer; or (iii) Other
liabilities of Customer to Custodian, however created.
7. Custodian will settle trade orders as instructed by the Customer. Custodian
will not be liable or accountable for any act or omission by or for the solvency
of any broker or agent effecting such transaction. Customer will be protected
for such orders under the terms of the broker-dealers' operating agreement.
8. Customer agrees to indemnify, defend and hold Custodian harmless against all
claims, damages, or liabilities from any third party to which Custodian or its
nominee may be subjected by reason of any registration of Securities or other
Property in the name of Custodian or its nominee or otherwise arising out of or
connected with Custodian's Services under this Agreement, except for any claims,
damages or liability arising out of Custodian's intentional, reckless or willful
misconduct.
9. Custodian shall not be liable for any losses, damages or liabilities
resulting from any action taken or omitted, or from any loss or injury resulting
from the Custodian's performance or lack of performance of its duties under this
Agreement in the absence of intentional, reckless or willful misconduct on
Custodian's part. In no event shall Custodian be liable (i) for acting
in accordance with Proper Instructions; (ii) for special, consequential or
punitive damages or lost profits; (iii) for the acts or omissions of its
Depositories, sub-custodians or nominees or agents; or (iv) for holding property
involved in any nationalization, expropriation or other governmental actions,
acts of war or terrorism, insurrection, revolution or national catastrophes
or acts of God.
10. Custodian will treat all records and information relating to Customer and
the Account as confidential, except that it may disclose such information after
prior approval of Customer, which will not be unreasonably withheld. Custodian
will be authorized to supply any information regarding the Account which is
required by any law or governmental regulation in effect without having received
Customer's prior approval. Customer agrees to review statements and reports
promptly on receipt and inquiries regarding any valuations or other reports must
be submitted within one month of the receipt of the Custodian's statement or
report, and on expiration of this period, statements and reports are considered
correct and agreed to. Express or tacit approval of such statement or report
implies acceptance of the various entries listed therein and approval of any
reservations made by Custodian. Thereafter, Customer assumes the responsibility
to correct any errors.
11. Customer or designated agent will pay Custodian for all fees and expenses
for the Services in accordance with the Fee Schedule in effect and billed or
charged according to the Customer Profile Schedule. Customer will receive at
least 30 days prior notice of any changes in the Fee Schedule. If Customer fails
to pay Custodian for any fees and expenses owed within 30 days after invoice,
Custodian may charge such fees and expenses to any deposit account of Customer
or in the name of Customer. Custodian may also assess late payment fees for
payments past due more than 30 days after invoice.
12. The failure of Custodian or Customer to insist on strict compliance, or to
exercise any right or remedy under this Agreement shall not constitute a waiver
of any rights contained herein or estop the parties from thereafter demanding
full and complete compliance or prevent the parties from exercising such remedy
in the future.
13. This Agreement is not a contract of employment and nothing contained in this
Agreement shall be constructed to create the relationship of joint venture,
partnership, or employment between the parties.
14. This Agreement constitutes the entire agreement between the parties and
supersedes all prior agreements, understandings, and representations regarding
the subject matter of this Agreement. No amendment to this Agreement shall be
valid, unless made in writing and signed by both parties.
15. This Agreement will be governed by and construed according to the laws of
the State of Ohio. The Customer or Custodian may terminate this Agreement upon
thirty (30) days prior written notice to the other party by registered,
certified or express mail. Custodian will charge fees up to and including the
last day of the billing period in which the effective date of termination
occurs. Notice shall be effective on the date of receipt thereof.
CUSTOMER: CUSTOMER'S ADDRESS:
By /s/ Xxxx X. Xxxxxx 0000 X. 0xx Xx. 0xx Xxxxx
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Date: 8-30-01 Cleveland, Ohio 44114
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Accepted:
FIFTH THIRD BANK CUSTODIAN'S ADDRESS:
By: /s/ Xxxxxx X. Aj Fifth Third Bank
--------------------------------- 38 Fountain Square Plaza
MD # 1090E5
Title: Trust Officer Cincinnati, Ohio 45263
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Date: 9/17/01
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EXHIBIT C
TO THE CUSTODY AGREEMENT BETWEEN
XXXXXX XXXXXXXXX AND THE FIFTH THIRD BANK
August 27, 2001
FIFTH THIRD BANK
XXXXXX FUNSHARES CUSTODY FEE SCHEDULE
PER FUND
FEE
I Basic Account
Annual Asset Based
Under $25 Million 1 bp
$25 - $100 Million .75 bp
$100-$200 Million .5 bp
Over $200 Million .25 bp
II Security Transactions
Depository Eligible $ 9.00
Physical $ 25.00
Principal & Income Collection $ 5.00
Options $ 25.00
Mutual Funds $ 15.00
International - Euroclear & Cedel $ 50.00
International - In Country See Attached
Pair-off Trades $ 25.00
III Systems
Fifth Third Internet Securities WorkStation
First 4 licenses (per month) $ 100.00
Each 5 additional licenses (per month) $ 50.00
IV. Miscellaneous Fees
Per additional issue for repo collateral $ 5.00
Voluntary Corporate Actions $ 25.00
Wire Transfers (In/ Out) $ 7.00
Check Requests $ 6.00
Escrow Receipt $ 5.00
Special Services - per hr. fee $ 75.00
Overnight Packages At Cost
Annual Minimum (invoiced monthly) $3,500.00
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CERTIFIED CORPORATE RESOLUTIONS
FOR CUSTODY SERVICES
The undersigned officer of _________________________________, a corporation
organized under the laws of the State of ___________________; does hereby
certify that either (a) at a meeting of the corporation's Board of Directors
duly called and held, at which meeting a quorum of the Board of Directors was
present and voting, or (b) by an action without a meeting as authorized under
the laws of said state, such a writing or writings filed with or entered upon
the records of the corporation, resolutions, of which the following is a full
and true copy as appears in said records, were duly adopted, and the proceedings
of the Board of Directors were in accordance with the Charter or Articles and
with the Regulations and Bylaws thereof, and that the resolutions as set forth
below are now in full force and effect.
RESOLVED, that this corporation is authorized to enter into an
agreement with THE FIFTH THIRD BANK, an Ohio corporation ("Bank") to furnish
various custody services to this corporation, which agreements may relate to one
or more of the custody accounts of this corporation with Bank;
RESOLVED FURTHER, that in connection herewith (a) any of the below
named individuals be and each of them is authorized for an on behalf of this
corporation to execute and deliver to Bank agreements and other writings, if
any, as Bank may require, which agreements and other writing, if any, such shall
be in such form and contain such representations, terms, authorizations, waivers
and other provisions as Bank may require and as the person executing such
agreements on behalf of this corporation may approve, and (b) any of the
individuals be and each of them is authorized for and on behalf of this
corporation to make and do all such acts and things including but not limited
to, supplying operational and procedural information, as Bank may from time to
time deem necessary or advisable in connection with the foregoing, and, in each
case, any such person's execution thereof or other acts in connection therewith
shall be conclusive evidence of his or her approval and the approval of the
Board of Directors:
Name Title Specimen Signature
Xxxxxx X. Xxxxxx Chairman /s/ Xxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx President /s/ Xxxxxx X. Xxxxxx
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Xxxxx X. Xxxxxxx Vice President /s/ Xxxxx X. Xxxxxxx
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RESOLVED FURTHER, that all such agreements and other writings
heretofore executed and delivered to Bank and other acts taken in connection
therewith on behalf of this corporation are hereby ratified, confirmed and
approved; and that a certified copy of these resolutions and a certification of
the names, titles and specimen signatures of the persons herein authorized to
act on behalf of this corporation shall be furnished to Bank, and that the Bank
is authorized to rely on these resolutions and such certification until written
notice to any change therein, in form satisfactory to Bank, shall have been
received by an appropriate officer of Bank.
I further certify that each of the persons named above is duly elected and an
acting officer of the corporation with the title indicated, and set forth
opposite such name and title is a specimen signature of such officer.
/s/ Xxxxxxxxx X. Xxxxxxxxxxx
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Secretary
THE FIFTH THIRD BANK
Customer Authorization to
Offer Account Direction
Date: 8-30-01
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The following people are authorized to communicate with The Fifth Third Bank of
Cincinnati, Ohio for the sole purpose of verifying daily transactions and
account activity in connection with the custodian account
# 00-00-0000000.
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NAME TITLE SIGNATURE
(typed) (typed)
Xxxxxx X. Xxxxxx Chairman /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx President /s/ Xxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxx /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxxxxxx /s/ Xxxxxxx X. Xxxxxxxxx
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Treasurer &
Xxxxx X. Xxxxxxx Vice President /s/ Xxxxx X. Xxxxxxx
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/s/ Xxxxxxxxx X. Xxxxxxxxxxx
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Authorized by
Fifth Third Bank -- Securities Services Group
00 Xxxxxxxx Xxxxxx Xxxxx -- Xxxxxxxxxx, Xxxx 00000 -- 000-000-0000
THE FIFTH THIRD BANK
Customer Authorization to
Offer Account Direction
Date: 8-30-01
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The following people are authorized to direct The Fifth Third Bank of
Cincinnati, Ohio in connection with the custodian account # 00-00-0000000,
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to hold, exchange, acquire, buy, sell, pledge, collect, transfer, or assign,
delivery (whether against payment or receipt free of payment), and/or dispose of
such stock, bonds, securities, mortgages, cash, and/or other property and take
any action relating to any such securities or property upon written or verbal
authorization.
NAME TITLE SIGNATURE
(typed) (typed)
Xxxxxx X. Xxxxxx Chairman /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx President /s/ Xxxxxx X. Xxxxxx
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/s/ Xxxxxxxxx X. Xxxxxxxxxxx
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Authorized by
Fifth Third Bank -- Securities Services Group
00 Xxxxxxxx Xxxxxx Xxxxx -- Xxxxxxxxxx, Xxxx 00000 -- 000-000-0000
