Exhibit 8
THIS AMENDED AND RESTATED CUSTODY AGREEMENT is made as of this 14th
day of November, 1996, between XXXXXXX SECURITIES TRUST (formerly
known as PRA SECURITIES TRUST), hereinafter called the "Trust," and
WILMINGTON TRUST COMPANY, a Delaware corporation, hereinafter called
"Custodian."
WHEREAS, on December 6, 1993, the Trust entered into an agreement (the
"Original Agreement") with Custodian with respect to the provision of
custodian services by the Custodian to the Trust with respect to the
Xxxxxxx Real Estate Fund (the "Fund") (formerly, the "PRA Real Estate
Securities Fund"), the sole series of the Trust; and
WHEREAS, the Trust and Custodian now desire to amend and restate the
Original Agreement.
NOW, THEREFORE, in consideration of the premises, and intending to be
legally bound, the Trust and Custodian hereby agree to amend and restate
the Original Agreement, as follows:
I. EMPLOYMENT OF CUSTODIAN AND PROPERTY TO BE HELD BY IT
The Trust hereby employs the Custodian as the custodian of its assets
pursuant to the provisions of the Master Trust Agreement. The Trust agrees
to deliver to the Custodian substantially all securities and cash owned by
it on behalf of the Fund(s), and substantially all payments of income,
securities and cash owned by it on behalf of the Fund(s), and substantially
all payments of income, payments of principal or capital distributions
received by it with respect to substantially all securities owned by the
Trust on behalf of the Fund(s) from time to time, and the cash
consideration received by it on behalf of the Fund(s) for such new or
treasury shares of beneficial interest ("Shares") of the Fund(s) as may be
issued or sold from time to time. The Custodian shall not be responsible
for any property of the Trust held or received by the Trust and not
delivered to the Custodian.
II. DUTIES OF THE CUSTODIAN WITH RESPECT TO PROPERTY OF THE TRUST HELD BY
THE CUSTODIAN
A. HOLDING SECURITIES
The Custodian shall hold, earmark and physically segregate for the
account of each Fund all non-cash property, including all securities
owned by the Trust on behalf of the Fund(s), other than securities
which are maintained pursuant to Section J of the this Article II, in
a clearing agency which acts as a securities depository or in a book-
entry system authorized by the U.S. Department of the Treasury,
collectively referred to herein as a "Securities System."
B. DELIVERY OF SECURITIES
The Custodian shall release and deliver securities owned by each Fund
held by the Custodian or in a Securities System account of the
Custodian only upon receipt of proper instructions, which may be
continuing instructions when deemed appropriate by the parties, and
only in the following cases:
1. Upon sale of such securities for the account of each Fund
and receipt of payment therefor;
2. Upon the receipt of payment in connection with any
repurchase agreement related to such securities entered into by
the Trust with respect to a Fund;
3. In the case of a sale effected through a Securities System,
in accordance with the provisions of Section J hereof;
4. To the depository agent in connection with tender or other
similar offers for securities of the Funds;
5. To the issuer thereof or its agent when such securities are
called, redeemed, retired or otherwise become payable; provided
that, in any such case, the cash or other consideration is to be
delivered to the Custodian;
6. To the issuer thereof, or its agent, for transfer into the
name of the Trust on behalf of any Fund or into the name of any
nominee or nominees of the Custodian or into the name or nominee
name of any agent appointed pursuant to Section I of this Article
II or into the name or nominee name of any sub-custodian
appointed pursuant to Section I of Article II; or for exchange
for a different number of bonds, 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;
7. To the broker selling the same for examination in accordance
with the "street delivery" custom; provided that the Custodian
shall adopt such procedures, as the Trust from time to time shall
approve, to ensure their prompt return to the Custodian by the
broker in the event the broker elects not to accept them;
8. For exchange or conversion pursuant to any plan of merger,
consolidation, recapitalization, reorganization or readjustment
of the securities of the issuer of securities, or pursuant to
provisions for conversion contained in such securities, or
pursuant to any deposit agreement; provided that, in any such
case, the new securities and cash, if any, are to be delivered to
the Custodian;
9. In the case of warrants, rights or similar securities, the
surrender thereof in the exercise of such warrants, rights or
similar securities or the surrender of interim receipts or
temporary securities for definitive securities; provided that, in
any such case, the new securities and cash, if any, are to be
delivered to the Custodian;
10. For delivery in connection with any loans of securities made
by the Trust on behalf of any Fund, but only against receipt of
adequate collateral, as agreed upon from time to time by the
Custodian and the Trust, which may be in the form of cash or
obligations issued by the United States government, its agencies
or instrumentalities;
11. For delivery as security in connection with any borrowings
by the Trust on behalf of any Fund requiring a pledge of assets
by the Trust on behalf of that Fund against receipt of amounts
borrowed;
12. Upon receipt of instructions from the transfer agent for the
Trust, for delivery to such transfer agent or to holders of
Shares in connection with distributions in kind in satisfaction
of requests by holders of Shares for repurchase or redemption;
and
13. For any 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 signed by an officer of
the Trust and certified by the Secretary or an Assistant
Secretary, specifying the securities to be delivered, setting
forth the purpose for which such delivery is to be made,
declaring such purposes to be proper corporate purposes, and
naming the persons to whom delivery of such securities shall be
made.
C. REGISTRATION OF SECURITIES
Securities held by the Custodian (other than bearer securities) shall
be registered in the name of the Trust on behalf of any Fund, or in
the name of any nominee of the Trust, or of any nominee of the
Custodian, provided the Custodian maintains a mechanism for
identifying all securities belonging to each Fund, wherever held or
registered, or in the name or nominee name of any agent or sub-
custodian appointed pursuant to Section I of Article II hereof. All
securities accepted by the Custodian on behalf of the Trust for any
Fund under the terms of this Agreement shall be in "street name" or
other good delivery form.
D. BANK ACCOUNTS
The Custodian shall open and maintain a separate bank account or
accounts in the name of the Trust, subject only to draft or order by
the Custodian acting pursuant to the terms of this Agreement, and
shall hold in such account or accounts, subject to the provisions
hereof, all cash received by it from or for the account of the Funds,
other than cash maintained by the Trust in a bank account established
and used in accordance with Rule 17f-3 under the 1940 Act.
E. PAYMENT FOR SHARES
The Custodian shall receive from the distributor of the Trust's Shares
or from the transfer agent of the Trust (the "Transfer Agent") and
deposit into the Trust's account for that Fund such payments as are
received for Shares issued or sold from time to time by the Trust.
The Custodian will provide timely notification to the Trust and the
Transfer Agent of any receipt by it of cash payments for Shares.
F. Investment and Availability of Federal Funds
Upon mutual agreement between the Trust and the Custodian, the
Custodian shall, upon the receipt of proper instructions, which may be
continuing instructions when deemed appropriate by the parties:
1. invest in such instruments as may be set forth in such
instructions, on the same day as received, all federal funds
received after a time agreed upon between the Custodian and the
Trust; and
2. make federal funds available to the Trust as of specified
times agreed upon from time to time by the Trust and the
Custodian in the amount of checks received in payment for Fund
Shares which are deposited into the account for that Fund.
F. COLLECTION OF INCOME
The Custodian shall collect on a timely basis all income and other
payments with respect to registered securities held hereunder to which
the Fund(s) shall be entitled either by law or pursuant to custom in
the securities business and shall collect on a timely basis all income
and other payments with respect to bearer securities if, on the date
of payment by the issuer, such securities are held by the Custodian or
agent thereof and shall credit such income, as collected, to the
Fund's custodian account. Without limiting the generality of the
foregoing for that Fund, the Custodian shall detach and present for
payment all coupons and other income items requiring presentations as
and when they become due and shall collect interest when due on
securities held hereunder.
G. PAYMENT OF TRUST MONEYS
Upon receipt of proper instructions, which may be continuing
instructions when deemed appropriate by the parties, the Custodian
shall pay out moneys of the Trust on behalf of the Fund(s) in the
following cases only:
1. Upon the purchase of securities for the account of a Fund,
but only (a) against the delivery of such securities to the
Custodian (or any bank, banking firm or trust company doing
business in the United States or abroad which is qualified under
the 1940 Act to act as a custodian and has been designated by the
Fund or by the Custodian as its agent for this purpose)
registered in the name of the Trust or in the name of a nominee
of the Custodian referred to in Section C of Article II hereof or
in proper form for transfer; (b) in the case of a purchase
effected through a Securities System, in accordance with the
conditions set forth in Section J of Article II hereof or; (c) in
the case of repurchase agreements entered into between the Trust
on behalf of any Fund and the Custodian, or another bank, (i)
against delivery of securities either in certificate form or
through an entry crediting the Custodian's account at the Federal
Reserve Bank with such securities and with an indication on the
books of the Custodian that such securities are held for the
benefit of the Fund and (ii) against delivery of the receipt
evidencing purchase by the Trust on behalf of any Fund of
securities owned by the Custodian or other bank along with
written evidence of the agreement by the Custodian or other bank
to repurchase such securities from the Trust;
2. In connection with conversion, exchange or surrender of
securities owned by the Trust on behalf of any Fund as set forth
in Section B of Article II hereof;
3. For the redemption or repurchase of Shares as set forth in
Section H of Article II hereof;
4. For the payment of any expense or liability incurred by the
Trust with respect to its Fund(s), including, but not limited to,
the following payments for the accounts of the Trust for the
affected Fund(s): interest, dividend disbursements, taxes, trade
association dues, advisory, administration, accounting, transfer
agent and legal fees, and operating expenses allocated to the
Fund whether or not such expenses are to be in whole or part
capitalized or treated as deferred expenses;
5. For the payment of any dividend declared on behalf of any
Fund pursuant to the governing documents of the Trust; and
6. For any 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 of the Trust signed by
an officer of the Trust and certified by its Secretary or an
Assistant Secretary, specifying the amount of such payment,
setting forth the purpose for which such payment is to be made,
declaring such purpose to be a proper corporate purpose, and
naming the person or persons to whom such payment is to be made.
I. Liability for Payment in Advance of Receipt of Securities Purchased
In any and every case where payment for purchase of securities for the
account of a Fund is made by the Custodian in advance of receipt of
the securities purchased, in the absence of specific written
instructions from the Trust to so pay in advance, the Custodian shall
be absolutely liable to the Trust for such securities to the same
extent as if the securities had been received by the Custodian, except
that in the case of repurchase agreements entered into by the Trust on
behalf of any Fund with a bank which is a member of the Federal
Reserve System, the Custodian may transfer funds to the account of
such bank prior to the receipt of (i) written evidence that the
securities subject to such repurchase agreement have been transferred
by book-entry into a segregated non-proprietary account of the
Custodian maintained with the Federal Reserve Bank of Philadelphia or
the safe-keeping receipt and (ii) the repurchase agreement, provided
that such written evidence or documents are received prior to the
close of business on the same day.
H. PAYMENTS FOR REPURCHASE OR REDEMPTIONS OF SHARES OF THE TRUST
From such funds as may be available for the purpose but subject to the
limitations of the Master Trust Agreement, Bylaws and any applicable
votes of the Board of Trustees of the Trust pursuant thereto, the
Custodian shall, upon receipt of instructions from the Transfer Agent,
make funds available for payment to holders of Shares who have
delivered to the Transfer Agent a request for redemption or repurchase
of their Shares. In connection with the redemption or repurchase of
Shares, the Custodian is authorized upon receipt of instructions from
the Transfer Agent to wire funds to a commercial bank designated by
the redeeming shareholders.
[In connection with the redemption or repurchase of Shares, the
Custodian shall honor checks drawn on the Custodian by a holder of
Shares, which checks have been furnished by the Trust to the holder of
Shares, when presented to the Custodian in accordance with such
procedures and controls as are mutually agreed upon from time to time
between the Trust and the Custodian.]
I. APPOINTMENT OF AGENTS
The Custodian may at any time in its discretion appoint, but only in
accordance with an applicable vote by the Trustees of the Trust, (and
may at any time remove) any other bank or trust company, which is
itself qualified under the 1940 Act to act as a custodian, as its
agent or sub-custodian to carry out such of the provisions of this
Article II as the Custodian may from time to time direct; provided,
however, that the appointment of any such agent or sub-custodian shall
not relieve the Custodian of any of its responsibilities or
liabilities hereunder.
J. DEPOSIT OF TRUST ASSETS IN SECURITIES SYSTEMS
The Custodian may deposit and/or maintain securities owned by the
Trust on behalf of a Fund in a clearing agency registered with the
Securities and Exchange Commission (the "SEC") under Section 17A of
the Securities Exchange Act of 1934, which acts as a securities
depository, or in the book-entry system authorized by the U.S.
Department of the Treasury and certain federal agencies (collectively
referred to herein as a "Securities System") in accordance with
applicable Federal Reserve Board and SEC rules and regulations, if
any, and subject to the following provisions:
1. The Custodian may keep securities of the Trust in a
Securities System provided that such securities are represented
in an account ("Account") of the Custodian in the Securities
System which shall not include any assets of the Custodian other
than assets held as a fiduciary, custodian, or otherwise for
customers;
2. The records of the Custodian with respect to securities of
the Fund(s) which are maintained in a Securities System shall
identify by book-entry those securities belonging to the Fund(s);
3. The Custodian shall pay for securities purchased for the
account of a Fund upon (i) receipt of advice from the Securities
System that such securities have been transferred to the 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. The Custodian shall transfer securities sold for the
account of the Fund upon (i) receipt of advice from the
Securities System that payment for such securities has been
transferred to the Account, and (ii) the making of any entry on
the records of the Custodian to reflect such transfer and payment
for the account of the Fund. Copies of all advices from the
Securities System of transfers of securities for the account of a
Fund shall identify the Fund, be maintained for the Fund by the
Custodian and be provided to the Trust at its request. The
Custodian shall furnish the Trust a monthly account statement
showing confirmation of each transfer to or from the account of
the Fund and each day's transactions in the Securities System for
the account of the Fund;
4. The Custodian shall have received the certificate required
by Article IX hereof;
5. The Custodian shall provide the Trust with any report
obtained by the Custodian on the Securities System's accounting
system, internal accounting control and procedures for
safeguarding securities deposited in the Securities System;
6. The Custodian shall be liable to the Trust on behalf of any
Fund for any direct loss or damage to the Trust on behalf of any
Fund resulting from use of the Securities System to the extent
caused by the negligence, misfeasance or misconduct of the
Custodian or any of its agents or of any of its or their
employees. In no event shall the Custodian be liable for any
indirect, special, consequential or punitive damages.
K. SEGREGATED ACCOUNTS FOR FUTURES COMMISSION MERCHANTS
The Custodian may enter into separate custodial agreements with
various Futures Commission Merchants ("FCM's") which the Trust uses
(each an "FCM agreement"), pursuant to which the Trust's margin
deposits made on behalf of its series in certain transactions
involving futures contracts and options on futures contracts will be
held by the Custodian in accounts (each an "FCM account") subject to
the disposition by the FCM involved in such contracts in accordance
with the customer contract between FCM and the Trust ("FCM contract"),
SEC rules governing such segregated accounts, Commodities Futures
Trading Commission ("CFTC") rules and the rules of applicable
securities or commodities exchanges. Such custodial agreements shall
only be entered into upon receipt of written instructions from the
Trust which state that (a) a customer agreement between the FCM and
the Trust has been entered into, and (b) the Trust is in compliance
with all the rules and regulations of the CFTC. Transfers of initial
margin shall be made into an FCM account only upon written
instructions; transfers of premium and variation margin may be made
into an FCM account pursuant to oral instructions. Transfers of
funds from an FCM account to the FCM for which the Custodian holds
such an account may only occur upon certification by the FCM to the
Custodian that pursuant to the FCM agreement and the FCM contract, all
conditions precedent to its right to give the Custodian such
instructions have been satisfied.
L. OWNERSHIP CERTIFICATES FOR TAX PURPOSES
The Custodian shall execute ownership and other certificates and
affidavits for all federal and state tax purposes in connection with
receipt of income or other payments with respect to securities of the
Fund(s) held by it and in connection with transfers of securities.
M. PROXIES
The Custodian shall, with respect to the securities held by it
hereunder, cause to be promptly executed by the registered holder of
such securities, if the securities are registered otherwise than in
the name of the Trust on behalf of a Fund or a nominee of the Trust,
all proxies, without indication of the manner in which such proxies
are to be voted, and shall promptly deliver to the Trust's investment
advisor for the offered Fund (the "Advisor") such proxies, all proxy
soliciting materials and all notices relating to such securities.
N. COMMUNICATIONS RELATING TO TRUST FUND SECURITIES
The Custodian shall transmit promptly to the Advisor of that Fund all
written information (including, without limitation, pendency of calls
and maturities of securities and expirations of rights in connection
therewith) received by the Custodian from issuers of the securities
being held for the Trust for a Fund. With respect to tender or
exchange offers, the Custodian shall transmit promptly to the Advisor
all written information received by the Custodian from issuers of the
securities whose tender or exchange is sought and from the party (or
his agents) making the tender or exchange offer. If the Advisor
desires to take action with respect to any tender offer, exchange
offer or any other similar transaction, the Advisor shall notify the
Custodian at least five business days prior to the date on which the
Custodian is to take such action.
O. PROPER INSTRUCTIONS
"Proper Instructions" as used throughout this Article II mean a
writing signed or initialed by one or more person or persons in such
manner as the Trustees shall have from time to time authorized. Each
such writing shall set forth the transaction involved, including a
specific statement of the purpose for which such action is requested.
Oral instructions will be considered Proper Instructions if the
Custodian reasonably believes them to have been given by a person
authorized to give such instructions with respect to the transaction
involved. The Trust shall cause all oral instructions to be confirmed
promptly in writing. Upon receipt of a certificate of the Secretary
or an Assistant Secretary as to the authorization by the Trustees of
the Trust accompanied by a detailed description of procedures approved
by the Trustees, Proper Instructions may include communications
effected directly between electro-mechanical or electronic devices
provided that the Trustees and the Custodian are satisfied that such
procedures afford adequate safeguards for the assets of the Funds.
P. ACTIONS PERMITTED WITHOUT EXPRESS AUTHORITY
The Custodian may in its discretion, without express authority from
the Trust:
1. make payments to itself or others for minor expenses of
handling securities or other similar items relating to its duties
under this Agreement, provided that all such payments shall be
accounted for to the Trust;
2. surrender securities in temporary form for securities in
definitive form;
3. endorse for collection, in the name of the Trust for a given
Fund, checks, drafts and other negotiable instruments; and
4. in general, attend to all non-discretionary details in
connection with the sale, exchange, substitution, purchase,
transfer and other dealings with the securities and property of
the Funds of the Trust except as otherwise directed by the Trust
or the Board of Trustees of the Trust.
Q. EVIDENCE OF AUTHORITY
The Custodian shall be protected in acting upon any instruction,
notice, request, consent, certificate or other instrument or paper
reasonably believed by it to be genuineand to have been properly
executed by or on behalf of the Trust. The Custodian may receive and
accept a certified copy of a vote of the Board of Trustees of the
Trust as conclusive evidence (a) of the authority of any person to act
in accordance with such vote, or (b) of any determination or of any
action by the Board of Trustees pursuant to the Master Trust Agreement
as described in such vote, and such vote may be considered as in full
force and effect until receipt by the Custodian of written notice to
the contrary.
III. DUTIES OF CUSTODIAN WITH RESPECT TO BOOKS OF ACCOUNT
The Custodian shall cooperate with and supply necessary information to
the entity or entities appointed by the Board of Trustees to keep the books
of account of the Trust. If so instructed in writing, which written
instructions shall be transmitted to the Custodian reasonably in advance of
the date on which it is to act, the Custodian shall supply quotations for
all portfolio securities to the entity or entities appointed by the Board
of Trustees to compute the net asset value per share of the outstanding
shares of the Fund(s) on each day on which such net asset value per share
is to be computed under the Trust's Master Trust Agreement.
IV. RECORDS
The Custodian shall create and maintain all records relating to its
activities and obligations under this Agreement in such manner as will meet
the obligations of the Trust under the 1940 Act, with particular attention
to Section 31 thereof and Rules 31a-1 and 31a-2 thereunder, applicable
federal and state tax laws and any other law or administrative rules or
procedures which may be applicable to the Trust. All such records shall be
property of the Trust and shall at all times during the regular business
hours of the Custodian be open for inspection by duly authorized officers,
employees or agents of the Trust and employees and agents of the SEC. The
Custodian shall, at the Trust's request, supply the Trust with a tabulation
of securities owned by the Fund(s) and held by the Custodian and shall,
when requested to do so by the Trust and for such compensation as shall be
agreed upon between the Trust and the Custodian, include certificate
numbers in such tabulations.
V. OPINION OF TRUST'S INDEPENDENT ACCOUNTANT
The Custodian shall take all reasonable action to obtain from year to
year favorable opinions from the Trust's independent accountants with
respect to its activities hereunder in connection with the preparation of
the Trust's Form N-1A, as the Trust may from time to time request, and the
Trust's Form N-SAR or other annual or semiannual reports to the SEC and
with respect to any other requirements of the SEC.
VI. REPORTS TO TRUST BY AUDITORS
The Custodian shall provide the Trust, at such times as the Trust may
reasonably require, with reports by its internal or independent auditors on
the accounting system, internal accounting control and procedures for
safeguarding securities, including reports as are available on securities
deposited and/or maintained in a Securities System, relating to the
services provided by the Custodian under this Agreement; such reports,
which shall be of sufficient scope and in sufficient detail as may
reasonably be required by the Trust, to provide reasonable assurance that
any material inadequacies would be disclosed, shall state in detail
material inadequacies disclosed by such examination, and if there are no
such inadequacies, shall so state.
VII. COMPENSATION OF CUSTODIAN
For the services the Custodian provides under this Custody Agreement,
the Custodian shall be entitled to reasonable compensation as agreed to
between the Trust and the Custodian from time to time. Until agreed
otherwise, the compensation shall be as set forth on Schedule A attached
hereto and made part hereof, as such schedule may be amended from time to
time.
VIII.RESPONSIBILITY OF CUSTODIAN/INDEMNIFICATION
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 by it or
delivered by it pursuant to this Agreement and shall be held harmless in
acting upon any notice, request, consent, certificate or other instrument
reasonably believed by it to be genuine and to be signed by the proper
party or parties.
The Custodian shall be entitled to rely on and may act upon advice of
counsel (who may be counsel for the Trust) on all matters, and shall be
without liability for any action reasonably taken or omitted pursuant to
such advice.
The Custodian shall be held to the exercise of reasonable care in
carrying out the provisions of this Agreement but shall be liable only for
its own negligent or bad faith acts or failures to act. The Trust shall
indemnify the Custodian and hold it harmless from and against all claims,
liabilities, and expenses (including attorneys' fees) which the Custodian
may suffer or incur on account of being Custodian hereunder except such
claims, liabilities and expenses arising from the Custodian's own
negligence or bad faith. Notwithstanding the foregoing, nothing contained
in this paragraph is intended to nor shall it be constructed to modify the
standards of care and responsibility set forth in Section I of Article II
hereof with respect to sub-custodians and in Section J(6) of Article II
hereof with respect to the Securities System.
If the Trust requires the Custodian to take any action with respect to
securities, which action involves the payment of money or which action may,
in the reasonable opinion of the Custodian, result in the Custodian or its
nominee assigned to the Trust being liable for the payment of money or
incurring liability of some other form, the Trust, as a prerequisite to
requiring the Custodian to take such action, shall provide indemnity to the
Custodian in an amount and form satisfactory to it.
IX. EFFECTIVE PERIOD; TERMINATION; AMENDMENT; ASSIGNMENT
This Agreement will become effective as of the date hereof and remain
effective until terminated as provided herein. This Agreement may be
amended at any time only by written instrument signed by both parties.
This Agreement may be terminated at any time on sixty (60) days' written
notice by either party; provided that the Trust will not amend or terminate
the Agreement in contravention of any applicable federal or state
regulations, or any provision of the governing documents of the Trust, and
further provided, that the Trust may at any time by action of its Board of
Trustees immediately terminate this Agreement in the event of the
appointment of a conservator or receiver for the Custodian by the
applicable federal regulator or upon the happening of a like event at the
direction of an appropriate regulatory agency or court of competent
jurisdiction. Upon termination of this Agreement, the Trust shall
reimburse the Custodian for all costs, expenses and disbursement that are
due as of the date of such termination. This Agreement may not be assigned
by the Trust without the consent of Custodian, and this Agreement may not
be assigned by Custodian without the consent of the Trust, authorized or
approved by a resolution of its Board of Trustees.
Upon termination of the Agreement, the Trust shall reimburse the
Custodian for those costs, expenses and disbursements that are due as of
the date of such termination.
X. INTERPRETIVE AND ADDITIONAL PROVISIONS
In connection with the operation of this Agreement, the Custodian and
the Trust may from time to time agree on such provisions interpretive of,
or in addition to, the provisions of this Agreement as may in their joint
opinion be consistent with the general tenor of this Agreement. Any such
interpretive or additional provisions shall be in writing signed by both
parties and shall be annexed hereto, provided that no such interpretive or
additional provisions shall contravene any applicable federal or state
regulations or any provision of the Master Trust Agreement of the Trust.
No interpretive or additional provisions made as provided in the preceding
sentence shall be deemed to be an amendment of this Agreement.
XI. TRUSTEES
All references to actions of or by Trustees or herein shall require
action by such Trustees acting as a board or formally constituted group and
not individually.
XII. DELAWARE LAW TO APPLY
This Agreement shall be deemed to be a contract made in Delaware and
governed by Delaware law. If any provision of this Agreement shall be held
or made invalid by a court decision, statute, rule or otherwise, the
remainder of this Agreement shall not be affected thereby. This Agreement
shall be binding and shall inure to the benefits of the parties hereto and
their respective successors.
XIII. LIMITATION OF SHAREHOLDER LIABILITY
The Custodian acknowledges that it has received notice of and
accepts the limitations of liability set forth in the Trust's Master Trust
Agreement. The Custodian agrees that the Trust's obligations hereunder
shall be limited to the Trust, and that the Custodian shall have recourse
solely against the assets of the Portfolio with respect to which the
Trust's obligations hereunder relate and shall have no recourse against the
assets of any other Portfolio or against any shareholder, Trustee, officer,
employee, or agent of the Trust.
IN WITNESS WHEREOF, each of the parties has caused this instrument to
be executed in its name and on behalf by its duly authorized representative
and its seal to be hereunder affixed as of the date first written above.
XXXXXXX SECURITIES TRUST
By: /S/ Xxxxxxx Xxxxxxxx
--------------------------------
President
WILMINGTON TRUST COMPANY
By: /S/ Xxxxx Xxxxxx
--------------------------------
Vice President
SCHEDULE A
XXXXXXX SECURITIES TRUST
FEE SCHEDULE
For the services Wilmington Trust Company ("WTC") provides under this
Custody Agreement, the Trust on behalf of the Fund(s) listed below agrees
to pay WTC a fee payable monthly expressed as follows:
Xxxxxxx Real Estate Fund An annual fee based upon the daily
average net assets as follows:
.02% on the first $50 million
.015% on the assets in excess of $50
million
subject to a minimum fee of $500
per month plus
$15 per purchase, sale or maturity of a
portfolio security, and
plus
any out-of-pocket expenses.
