Exhibit (g)(1)
CUSTODY AGREEMENT
THIS AGREEMENT, is made as of September 29, 2000, by and between CITIZENS
FUNDS, a Massachusetts Business Trust organized under the laws of the
Commonwealth of Massachusetts (the "Trust"), and THE FIFTH THIRD BANK, a
banking trust organized under the laws of the State of Ohio (the "Custodian").
WITNESSETH:
WHEREAS, the Trust desires that the Securities and cash of each of the
investment portfolios identified in Exhibit A hereto (such investment
portfolios and individually referred to herein as a "Fund" and collectively as
the "Funds"), be held and administered by the Custodian pursuant to this
Agreement; and
WHEREAS, the Trust is an open-end management investment company registered
under the Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Custodian represents that it is a bank having the
qualifications prescribed in Section 26(a)(i) of the 1940 Act;
NOW, THEREFORE, in consideration of the mutual agreements herein made, the
Trust and the Custodian hereby agree as follows:
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and phrases, unless
the context otherwise requires, shall have the following meanings:
1.1 "Authorized Person" means any Officer or other person duly authorized
by resolution of the Board of Trustees to give Oral Instructions and Written
Instructions on behalf of the Trust and named in Exhibit B hereto or in such
resolutions of the Board of Trustees, certified by an Officer, as may be
received by the Custodian from time to time.
1.2 "Board of Trustees" shall mean the Trustees from time to time serving
under the Trust's Agreement and Declaration of Trust, dated November 19, 1982,
as from time to time amended.
1.3 "Book-Entry System" shall mean a federal book-entry system as provided
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.
1.4 "Business Day" shall mean any day recognized as a settlement day by
The New York Stock Exchange, Inc. and any other day for which the Fund
computes the net asset value of the Fund.
1.5 "NASD" shall mean The National Association of Securities Dealers, Inc.
1.6 "Officer" shall mean the President, any Vice President, the Secretary,
any Assistant Secretary, the Treasurer, or any Assistant Treasurer of the
Trust.
1.7 "Oral Instructions" shall mean instructions orally transmitted to and
accepted by the Custodian because such instructions are: (i) reasonably
believed by the Custodian to have been given by an Authorized Person, (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. 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 which 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.
1.8 "Custody Account" shall mean any account in the name of the Trust,
which is provided for in Section 3.2 below.
1.9 "Proper Instructions" shall mean Oral Instructions or Written
Instructions. Proper Instructions may be continuing Written Instructions when
deemed appropriate by both parties.
1.10 "Securities Depository" shall mean The Participants Trust Company or
The Depository Trust Company and (provided that Custodian shall have received a
copy of a resolution of the Board of Trustees, certified by an Officer,
specifically approving the use of such clearing agency as a depository for the
Trust) any other clearing agency registered with the Securities and Exchange
Commission under Section 17A of the Securities and Exchange Act of 1934 (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.
1.11 "Securities" shall include, without limitation, common and preferred
stocks, bonds, call options, put options, debentures, notes, bank certificates
of deposit, bankers' acceptances, mortgage-backed securities, other money
market instruments 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 has the facilities to clear and to service.
1.12 "Shares" shall mean the units of beneficial interest issued by the
Trust.
1.13 "Written Instructions" shall mean (i) written communications actually
received by the Custodian and signed by one or more persons as the Board of
Trustees shall have from time to time authorized, or (ii) communications by
telex or any other such system from a person or persons reasonably believed by
the Custodian to be Authorized, or (iii) communications transmitted
electronically through the Institutional Delivery System (IDS), or any other
similar electronic instruction system acceptable to Custodian and 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
2.1 Appointment. The Trust hereby constitutes and appoints the Custodian
as custodian of all Securities and cash owned by or in the possession of the
Trust at any time during the period of this Agreement, provided that such
Securities or cash at all times shall be and remain the property of the Trust.
2.2 Acceptance. The Custodian hereby accepts appointment as such custodian
and agrees to perform the duties thereof as hereinafter set forth and in
accordance with the 1940 Act as amended. Except as specifically set forth
herein, the Custodian shall have no liability and assumes no responsibility for
any non-compliance by the Trust or a Fund of any laws, rules or regulations.
ARTICLE III
CUSTODY OF CASH AND SECURITIES
3.1 Segregation. All Securities and non-cash property held by the
Custodian for the account of the Funds, except Securities maintained in a
Securities Depository or Book-Entry System, shall be physically segregated from
other Securities and non-cash property in the possession of the Custodian and
shall be identified as subject to this Agreement.
3.2 Custody Account. The Custodian shall open and maintain in its trust
department a custody account in the name of each 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 the Fund which are delivered to it.
3.3 Appointment of Agents. In its discretion, the Custodian may appoint,
and at any time remove, any domestic bank or trust company, which has been
approved by the Board of Trustees and is qualified to act as a custodian under
the 1940 Act, as sub-custodian to hold Securities and cash of the Funds and to
carry out such other provisions of this Agreement as it may determine, and may
also open and maintain one or more banking accounts with such a bank or trust
company (any such accounts to be in the name of the Custodian and subject only
to its draft or order), provided, however, that the appointment of any such
agent shall not relieve the Custodian of any of its obligations or liabilities
under this Agreement.
3.4 Delivery of Assets to Custodian. The Funds shall deliver, or cause to
be delivered, to the Custodian all of the Fund's Securities, cash and other
assets, including (a) all payments of income, payments of principal and capital
distributions received by the Funds with respect to such Securities, cash or
other assets owned by the Funds at any time during the period of this
Agreement, and (b) all cash received by the Funds for the issuance, at any time
during such period, of Shares. The Custodian shall not be responsible for such
Securities, cash or other assets until actually received by it.
3.5 Securities Depositories and Book-Entry Systems. The Custodian may
deposit and/or maintain Securities of the Funds in a Securities Depository or
in a Book-Entry System, subject to the following provisions:
(a) Prior to a deposit of Securities of the Funds in any Securities
Depository or Book-Entry System, the Funds shall deliver to the
Custodian a resolution of the Board of Trustees, certified by an
Officer, authorizing and instructing the Custodian on an on-going
basis to deposit in such Securities Depository or Book-Entry System
all Securities eligible for deposit therein and to 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 Funds 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 and the Custodian's account on the books
of the Book-Entry System and Securities Depository as the case may be,
with respect to Securities of a Fund maintained in a Book-Entry System
or Securities Depository shall, by book-entry, or otherwise identify
such Securities as belonging to the Fund.
(d) If Securities purchased by the Funds 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 Funds. If Securities sold by the Funds 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) Upon request, the Custodian shall provide the Funds with copies of any
report (obtained by the Custodian from a Book-Entry System or
Securities Depository in which Securities of the Funds are kept) on
the internal accounting controls and procedures for safeguarding
Securities deposited in such Book-Entry System or Securities
Depository.
(f) Anything to the contrary in this Agreement notwithstanding, the
Custodian shall be liable to the Trust for any loss or damage to the
Trust resulting (i) from the use of a Book-Entry System or Securities
Depository by reason of any negligence or willful misconduct on the
part of Custodian or any sub-custodian appointed pursuant to Section
3.3 above or any of its or their employees, or (ii) from failure of
Custodian or any such 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 for any loss or damage to
the Funds arising from the use of such Book-Entry System or Securities
Depository, if and to the extent that the Trust has been made whole
for any such loss or damage.
3.6 Disbursement of Moneys from Custody Accounts. Upon receipt of Proper
Instructions, the Custodian shall disburse moneys from a Fund Custody
Account but only in the following cases:
(a) For the purchase of Securities for the Fund but only upon compliance
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 appointed pursuant to Section 3.3 above) of such
Securities registered as provided in Section 3.9 below 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 such
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 such sub-custodian) of evidence of title thereto in
favor of the Trust 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 for the account of the Fund 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 Trust,
including but not limited to the following payments for the account of
a Fund: interest; taxes; administration, investment management,
investment advisory, accounting, auditing, transfer agent, custodian,
trustee and legal fees; and other operating expenses of a 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 the NASD, 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
Trust;
(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 Trust;
(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 purposes, 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.
3.7 Delivery of Securities from Fund Custody Accounts. Upon receipt of
Proper Instructions, the Custodian shall release and deliver
Securities from a Custody Account but only in the following cases:
(a) Upon the sale of Securities for the account of a 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 a 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 Trust, the Custodian or any sub-custodian appointed pursuant to
Section 3.3 above, or of 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 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 a 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 a 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
Trust on behalf of a Fund requiring a pledge of assets by such Fund,
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 or a Fund;
(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 the NASD, 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 Trust on behalf of a Fund;
(m) For delivery in accordance with the provisions of any agreement among
the Trust on behalf of a Fund, 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 Trust on behalf of a Fund; or
(n) For any other proper corporate purposes, 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.
3.8 Actions Not Requiring Proper Instructions. Unless otherwise instructed
by the Trust, the Custodian shall with respect to all Securities
held for a Fund;
(a) Subject to Section 7.4 below, collect on a timely basis all income and
other payments to which the Trust is entitled either by law or
pursuant to custom in the securities business;
(b) Present for payment and, subject to Section 7.4 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 Trust, 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 Internal Revenue Service ("IRS") and to the
Trust at such time, in such manner and containing such information as
is prescribed by the IRS;
(f) Hold for a 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 sale,
exchange, substitution, purchase, transfer and other dealings with
Securities and assets of the Fund.
3.9 Registration and Transfer of Securities. All Securities held for a
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 for the account of the Trust on behalf of a Fund, if eligible
therefor. All other Securities held for a Fund may be registered in the name of
the Trust on behalf of such Fund, the Custodian, or any sub-custodian appointed
pursuant to Section 3.3 above, or in the name of any nominee of any of them, or
in the name of a Book-Entry System, Securities Depository or any nominee of
either thereof; provided, however, that such Securities are held specifically
for the account of the Trust on behalf of a 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 hereinabove referred to or in the name of a Book-Entry System or
Securities Depository, any Securities registered in the name of a Fund.
3.10 Records. (a) The Custodian shall maintain, by Fund, complete and
accurate records with respect to Securities, cash or other Property held for
the Trust, 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
accrued; and (iii) canceled checks and bank records related thereto. The
Custodian shall keep such other books and records of the Trust as the Trust
shall reasonably request, or as may be required by the 1940 Act, including, but
not limited to Section 3.1 and Rule 31a-1 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 rules and
regulations of the Securities and Exchange Commission, (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 Securities and
Exchange Commission, and (iii) if required to be maintained by Rule 31a-1 under
the 1940 Act, be preserved for the periods prescribed in Rule 31a-2 under the
0000 Xxx.
3.11 Fund Reports by Custodian. The Custodian shall furnish the Trust with
a daily activity statement by Fund and a summary of all transfers to or from
the Custody Account on the day following such transfers. At least monthly and
from time to time, the Custodian shall furnish the Trust with a detailed
statement, by Fund, of the Securities and moneys held for the Trust under this
Agreement.
3.12 Other Reports by Custodian. The Custodian shall provide the Trust
with such reports, as the Trust may reasonably request from time to time, on
the internal accounting controls and procedures for safeguarding Securities,
which are employed by the Custodian or any sub-custodian appointed pursuant to
Section 3.3 above.
3.13 Proxies and Other Materials. The Custodian shall cause all proxies if
any, relating to Securities which are not registered in the name of a 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
include all other proxy materials, if any, promptly deliver to the Trust such
proxies, all proxy soliciting materials, which should include all other proxy
materials, if any, and all notices to such Securities.
3.14 Information on Corporate Actions. Custodian will promptly notify the
Trust of corporate actions, 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
corporate actions is published by Xcitek, DTC, or received by first class mail
from the transfer agent. For market announcements not yet received and
distributed by Custodian's services, Trust will inform its custody
representative with appropriate instructions. Custodian will, upon receipt of
Trust's response within the required deadline, affect such action for receipt
or payment for the Trust. 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. Custodian will promptly
notify Trust for put options only if the notice is received by first class mail
from the agent. The Trust will provide or cause to be provided to 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.
ARTICLE IV
PURCHASE AND SALE OF INVESTMENTS OF THE FUNDS
4.1 Purchase of Securities. Promptly upon each purchase of Securities for
the Fund, Written Instructions shall be delivered to the Custodian, specifying
(a) the name of the issuer or writer of such Securities, and the title or other
description thereof, (b) the number of shares, principal amount (and accrued
interest, if any) or other units purchased, (c) the date of purchase and
settlement, (d) the purchase price per unit, (e) the total amount payable upon
such purchase, and (f) the name of the person to whom such amount is payable.
The Custodian shall upon receipt of such Securities purchased by a Fund pay out
of the moneys held for the account of such 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 a Fund, if in the relevant Custody Account there is insufficient
cash available to the Fund for which such purchase was made.
4.2 Liability for Payment in Advance of Receipt of Securities Purchased.
In any and every case where payment for the purchase of Securities for a Fund
is made by the Custodian in advance of receipt for the account of the Fund of
the Securities purchased but in the absence of specific Written or Oral
Instructions to so pay in advance, the Custodian shall be liable to the Fund
for such Securities to the same extent as if the Securities had been received
by the Custodian.
4.3 Sale of Securities. Promptly upon each sale of Securities by a Fund,
Written Instructions shall be delivered to the Custodian, specifying (a) the
name of the issuer or writer of such Securities, and the title or other
description thereof, (b) the number of shares, principal amount (and accrued
interest, if any), or other units sold, (c) the date of sale and settlement (d)
the sale price per unit, (e) the total amount payable upon such sale, and (f)
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.
4.4 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 of the
foregoing.
4.5 Payment for Securities Sold, etc. In its sole discretion and from time
to time, the Custodian may credit the relevant 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 Funds to use funds so
credited to its 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 Custody Account.
4.6 Advances by Custodian for Settlement. The Custodian may, in its sole
discretion and from time to time, advance funds to the Fund to facilitate the
settlement of a Fund transactions in its Custody Account. Any such advance
shall be repayable immediately upon demand made by Custodian.
ARTICLE V
REDEMPTION OF FUND SHARES
Transfer of Funds. From such funds as may be available for the purpose in
the relevant Custody Account, and upon receipt of Proper Instructions
specifying that the funds are required to redeem Shares of a Fund, the
Custodian shall wire each amount specified in such Proper Instructions to or
through such bank as the Fund may designate with respect to such amount in such
Proper Instructions. Upon effecting payment or distribution in accordance with
proper Instruction, the Custodian shall not be under any obligation or have any
responsibility thereafter with respect to any such paying bank.
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 each 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 the NASD (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 Funds,
(b) for purposes of segregating cash or Securities in connection with
securities options purchased or written by a Fund or in connection
with financial futures contracts (or options thereon) purchased or
sold by a Fund,
(c) which constitute collateral for loans of Securities made by a Fund,
(d) for purposes of compliance by the Funds 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.
ARTICLE VII
CONCERNING THE CUSTODIAN
7.1 Standard of Care. The Custodian shall be held to the exercise of
reasonable care in carrying out its obligations under this Agreement, and shall
be without liability to the Trust for any loss, damage, cost, expense
(including attorneys' fees and disbursements), liability or claim unless such
loss, damages, cost, expense, liability or claim arises from negligence, bad
faith or willful misconduct on its part or on the part of any sub-custodian
appointed pursuant to Section 3.3 above. The Custodian will not be liable for
special incidental or punitive damages. 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. The Custodian shall not be under
any obligation at any time to ascertain whether the Trust is in compliance with
the 1940 Act, the regulations thereunder, the provisions of the Trust's charter
documents or by-laws, or its investment objectives and policies as then in
effect.
7.2 Actual Collection Required. The Custodian shall not be liable for, or
considered to be the custodian of, any cash belonging to the Funds 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.
7.3 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.
7.4 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 Funds if such Securities
are in default or payment is not made after due demand or presentation.
7.5 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/or any Written Instructions
actually received by it pursuant to this Agreement.
7.6 Express Duties Only. The Custodian shall have no duties or obligations
whatsoever except such duties and obligations as are specifically set forth in
this Agreement, or established by Law and no covenant or obligation shall be
implied in this Agreement against the Custodian.
7.7 Cooperation. The Custodian shall cooperate with and supply necessary
information, on behalf of the Trust, to the entity or entities requested by the
Trust. 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 (a) the preparation of the
Trust's report on Form N-1A and Form N-SAR and any other reports required by
the Securities and Exchange Commission, and (b) the fulfillment by the Trust of
any other requirements of the Securities and Exchange Commission.
ARTICLE VIII
INDEMNIFICATION
8.1 Indemnification. The Trust shall indemnify and hold harmless the
Custodian and any sub-custodian appointed pursuant to Section 3.3 above, and
any nominee of the Custodian or of such sub-custodian from and against any
loss, damage, cost, expense (including attorneys' fees and disbursements),
liability (including, without limitation, liability arising under the
Securities Act of 1933, the 1934 Act, the 1940 Act, and any state or foreign
securities and/or banking laws) or claim arising directly or indirectly (a)
from the fact that Securities are registered in the name of any such nominee,
or (b) from any action or inaction by the Custodian or such sub-custodian (i)
at the request or direction of or in reliance on the advice of the Trust, or
(ii) upon Proper Instructions, or (c) generally, from the performance of its
obligations under this Agreement or any sub-custody agreement with a
sub-custodian appointed pursuant to Section 3.3 above or, in the case of any
such sub-custodian, from the performance of its obligations under such custody
agreement, provided that neither the Custodian nor any such sub-custodian shall
be indemnified and held harmless from and against any such loss, damage, cost,
expense, liability or claim arising from the Custodian's or such
sub-custodian's negligence, bad faith or willful misconduct.
8.2 Indemnity to be Provided. If the Trust requests the Custodian to take
any action with respect to Securities, which may, in the opinion of the
custodian, result in the Custodian or its nominee becoming liable for the
payment of money or incurring liability of some other form, the Custodian shall
not be required to take such action until the Trust shall have provided
indemnity therefor to the Custodian in an amount and form satisfactory to the
Custodian.
ARTICLE IX
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; 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 the Custodian in the event of a failure
or delay shall use its best efforts to ameliorate the effects of any such
failure or delay. Notwithstanding the foregoing, the Custodian shall maintain
sufficient disaster recovery procedures to minimize interruptions.
ARTICLE X
EFFECTIVE PERIOD; TERMINATION
10.1 Effective Period. This Agreement shall become effective as of the
date first set forth above and shall continue in full force and effect until
terminated as hereinafter provided.
10.2 Termination. Either party hereto may terminate this Agreement by
giving to the other party a notice in writing specifying the date of such
termination, which shall be not less than sixty (60) days after the date of the
giving of such notice. 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
(a) 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 Trust and held by the Custodian as custodian, and (b) transfer any
Securities held in a Book-Entry System or Securities Depository to an account
of or for the benefit of the Trust 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. Upon such
delivery and transfer, the Custodian shall be relieved of all obligations under
this Agreement. 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 in the State of Ohio or upon the happening of a like
event at the direction of an appropriate regulatory agency or court of
competent jurisdiction.
10.3 Failure to Appoint Successor Custodian. If a successor custodian is
not designated by the Trust on or before the date of termination specified
pursuant to Section 10.1 above, then the Custodian shall have the right to
deliver to a bank or trust company of its own selection, which is (a) a "Bank"
as defined in the 1940 Act, (b) has aggregate capital, surplus and undivided
profits as shown on its then most recent published report of not less than $25
million, and (c) is doing business in New York, New York, all Securities, cash
and other Property held by Custodian under this Agreement and to transfer to an
account of or for the Trust at such bank or trust company all Securities of the
Trust 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. If, after reasonable inquiry, Custodian cannot find a successor
custodian as contemplated in this Section 10.3, then Custodian shall have the
right to deliver to the Trust all Securities and cash then owned by the Trust
and to transfer any Securities held in a Book-Entry System or Securities
Depository to an account of or for the Trust. Thereafter, the Trust shall be
deemed to be its own custodian with respect to the Trust and the Custodian
shall be relieved of all obligations under this Agreement.
ARTICLE XI
COMPENSATION OF CUSTODIAN
The Custodian shall be entitled to compensation as agreed upon from time
to time by the Trust and the Custodian. The fees and other charges in effect on
the date hereof and applicable to the Funds are set forth in Exhibit A attached
hereto.
ARTICLE XII
LIMITATION OF LIABILITY
The Trust is a business trust organized under the laws of the Commonwealth
of Massachusetts and under a Declaration of Trust, to which reference is hereby
made a copy of which is on file at the office of Secretary of State of
Massachusetts as required by law, and to any and all amendments thereto so
filed or hereafter filed. The obligations of the Trust entered into in the name
of the Trust or on behalf thereof by any of the Trustees, officers, employees
or agents are made not individually, but in such capacities, and are not
binding upon any of the Trustees, officers, employees, agents or shareholders
of the Trust or the Funds personally, but bind only the assets of the Trust,
and all persons dealing with any of the Funds of the Trust must look solely to
the assets of the Trust belonging to such Fund for the enforcement of any
claims against the Trust.
ARTICLE XIII
NOTICES
Unless otherwise specified herein, all demands, notices, instructions, and
other communications to be given hereunder shall be in writing and shall be
sent or delivered to the recipient at the address set forth after its name
herein below:
To the Trust:
Citizens Funds
000 Xxxxxxxx Xxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Mr. Xxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
To the Custodian:
The Fifth Third Bank
00 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Attn: Area Manager - Trust Operations
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or at such other address as either party shall have provided to the other by
notice given in accordance with this Article XIII. Writing shall include
transmission by or through teletype, facsimile, central processing unit
connection, on-line terminal and magnetic tape.
ARTICLE XIV
MISCELLANEOUS
14.1 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Ohio.
14.2 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 or its registration statement for the Trust
and such other printed matter as merely identifies Custodian as custodian for
the Trust. 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.
14.3 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.
14.4 Amendments. This Agreement cannot be changed orally and no amendment
to this Agreement shall be effective unless evidenced by an instrument in
writing executed by the parties hereto.
14.5 Counterparts. This Agreement may be executed in one or more
counterparts, and by the parties hereto on separate counterparts, each of which
shall be deemed an original but all of which together shall constitute but one
and the same instrument.
14.6 Severability. If any provision of this Agreement shall be invalid,
illegal or unenforceable in any respect under any applicable law, the validity,
legality and enforceability of the remaining provisions shall not be affected
or impaired thereby.
14.7 Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective
successors and assigns; provided, however, that this Agreement shall not be
assignable by either party hereto without the written consent of the other
party hereto.
14.8 Headings. The headings of sections in this Agreement are for
convenience of reference only and shall not affect the meaning or construction
of any provision of this Agreement.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be executed and delivered in its name and on its behalf by its
representatives thereunto duly authorized, all as of the day and year first
above written.
ATTEST: CITIZENS FUNDS
Xxxxxx X. Xxxxxxxx By: Xxxx X. Xxxxxxxx
Its: Treasurer
ATTEST: THE FIFTH THIRD BANK
[illegible] By: Xxxxxxx Xxxxxx
Its: AVP
Dated: ___________, 2000
EXHIBIT B
TO THE CUSTODY AGREEMENT BETWEEN
CITIZENS FUNDS
AND THE FIFTH THIRD BANK
______________, 2000
AUTHORIZED PERSONS
Set forth below are the names and specimen signatures of the persons
authorized by the Trust to Administer each Custody Account.
Name Signature
------------------------------------ --------------------------------------
------------------------------------ --------------------------------------
------------------------------------ --------------------------------------
------------------------------------ --------------------------------------
------------------------------------ --------------------------------------
------------------------------------ --------------------------------------
Dated: September 29, 2000
EXHIBIT C
TO THE CUSTODY AGREEMENT BETWEEN
CITIZENS FUNDS
AND THE FIFTH THIRD BANK
SEPTEMBER 29, 2000
Name of Fund Date
Citizens Income Fund October 2, 2000
Citizens Emerging Growth Fund October 2, 2000
Citizens Index Fund * October 2, 2000
Citizens Small Cap Index Fund ** October 2, 2000
Citizens Global Equity Fund October 2, 2000
Working Assets Money Market Fund*** October 2, 2000
Citizens International Growth Fund December 15, 2000
* (Effective November 1, 2000, Citizens Core Growth Fund)
** (Effective November 1, 2000, Citizens Small Cap Core Growth Fund)
*** (Effective November 1, 2000, Citizens Money Market Fund)
CITIZENS FUNDS
BY: XXXX X. XXXXXXXX
ITS: TREASURER
THE FIFTH THIRD BANK
BY: XXXXXXX XXXXXX
ITS: AVP
SIGNATURE RESOLUTION
RESOLVED, That all of the following officers of Citizens Funds and any of them,
namely the President, Secretary, Treasurer and Assistant Treasurer, are hereby
authorized as signers for the conduct of custodian related business including,
but not limited to, the authority to sell, assign and transfer securities for
and on behalf of the Funds.
Xxxx X. Xxxxxxx PRESIDENT Xxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx SECRETARY Xxxxxxx X. Xxxxxxx
Xxxx X. Xxxxxxxx TREASURER Xxxx X. Xxxxxxxx
Xxxx X. X'Xxxxx ASSISTANT TREASURER Xxxx X. X'Xxxxx
In addition, the following Assistant Treasurer is authorized to sign on behalf
of the Trust for the purpose of effecting securities transactions:
Xxxxx Xxxxx Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxx Xxxxxxxxx
Neb Jovicic Neb Jovicic
The undersigned officers of Citizens Funds hereby certify that the foregoing is
within the parameters of a Resolution adopted by Trustees of the Trust in a
meeting held August 21, 2000, directing and authorizing management of the Fund
to do everything necessary, including, but not limited to, the preparation of
all required documents, to facilitate the implementation of a Custody Agreement
between Citizens Funds and Fifth Third Bank.
BY: Xxxx X. Xxxxxxxx
ITS: Treasuer
BY: Xxxxxxx Xxxxxxxx
ITS: Secretary
FIFTH THIRD BANK
GLOBAL CUSTODY ADDENDUM
This GLOBAL CUSTODY ("ADDENDUM") dated as of October 13, 2000, 2000 by and
between Citizens Funds (the "Customer"), and FIFTH THIRD BANK, a banking
corporation organized pursuant to the laws of the State of Ohio ("Bank"), is
made as an addendum to the Custody Agreement dated September 29, 2000 (the
"Custody Agreement") between the Customer and Bank;
WHEREAS, Bank has been appointed by customer as the custodian of the
assets of its portfolio of funds and Customer desires to establish one or more
custody accounts through Bank for Global Custody;
NOW, THEREFORE, in consideration of the premises and of the mutual
promises and covenants contained herein, the parties hereto agree as follows:
1. Appointment of Bank as Global Custodian. Bank is hereby authorized and
directed to, and shall, open and maintain one or more custody accounts (the
"Account") in such name or names as Customer may, from time to time, direct;
and will accept, in accordance with the terms hereof, all cash and currency
(collectively referred to herein as "Cash") and all securities, instruments and
other intangible assets as may be agreed upon by Bank and Customer which shall
from time to time be delivered to or received by it or any Sub-custodian in the
United States or in a country approved by Customer for deposit in or otherwise
held in the Account (collectively referred to herein as "Securities") (Cash and
Securities are collectively referred to herein as "Assets"). Bank assumes no
obligation to review investments in the Account or to recommend the purchase,
retention or sale of any assets unless provided for by a separate written
agreement between the parties.
2. Maintenance of Assets Outside the United States. Bank is hereby
authorized and directed to hold the Assets in the countries with the
Sub-custodians set forth on Schedule A annexed hereto (the "Foreign
Sub-custodians"), which Schedule A may be amended (by deleting, adding or
changing Sub-custodians or deleting countries) from time to time by Bank
without Customer approval. Bank shall notify, in writing the Customer of any
such amendment or change.
3. Foreign Sub-Custodians. Except as may otherwise be agreed upon in
writing, Assets of the Fund shall at all times be maintained in custody of an
"Eligible Foreign Custodian" as defined under the 1940 Act. with respect to
holding Property with an Eligible Foreign Custodian, it is expressly understood
and agreed that:
(i) Bank will endeavor, to the extent feasible, to hold securities in
the country or other jurisdiction in which the principal trading market
for such Securities is located, where such Securities are to be
presented for cancellation and/or payment and/or registration, or where
such Securities are acquired;
(ii) Cash which is maintained in a foreign country will be in any
currency which may be legally held in such country and may be held in
non-interest bearing accounts;
(iii) Foreign Sub-custodians may hold Securities in central securities
depositories or clearing agencies in which such participates;
(iv) Unless otherwise agreed to in writing by the parties hereto or
otherwise required by local law or practice, Securities deposited with
Eligible Foreign Custodians will be held in a commingled account in the
name of Bank or its designee sub-custodian as custodian or trustee for
its customers;
(v) Settlement of and payment for Securities received for, and
delivered from the Account may be made in accordance with the customary
or established securities trading or securities processing practices
and procedures in the jurisdiction or market in which the transaction
occurs,including without limitation, the delivery of securities to a
purchaser, broker, dealer or their prospective agents either against a
receipt for future payment or without any payment (so-called "free
delivery"); and
(vi) Customer is solely responsible for the payment of and the
reclamation, where applicable, of taxes. Bank will, however, cooperate
with Customer in connection with Customer's payment or reclamation of
taxes and shall make the necessary filings in connection with obtaining
tax exemptions and tax reclamations which are available to the
Customer.
4. Powers of Bank. (a) General Powers. Subject to and in accordance with
Customer's instruction, Bank, as Customer's agent, and for the account and risk
of Customer, is hereby authorized and empowered, with respect to Securities
held outside the United States with Foreign Sub-custodians, to authorize and
empower Foreign Sub-custodians to:
(i) receive and deliver Property;
(ii) receive all payments of principal, interest, dividends and other
income and distributions payable with respect to Property;
(iii) exchange Securities in temporary or bearer form for Securities in
definitive or registered form; effect an exchange of shares where the
par value of stock is changed; and surrender securities at maturity or
earlier when advised of a call for redemption (provided, however, that
bank shall not be liable for failure to so exchange or surrender any
security or take other action (A) if notice of such exchange or call
for redemption or other action was not actually received by Bank from
the issuer (with respect to Securities issued in the United States) or
from one of the nationally or internationally recognized bond or
corporate action services to which Bank subscribes or from the Customer
or (B) if, at the time of deposit, any Security so deposited is subject
to call, exchange, redemption or similar action, unless specifically
instructed to do so by Customer);
(iv) hold Property (A) in its vaults, (B) at a domestic or foreign
entity that provides handling, clearing or safekeeping service, (C)
with issuer in non-certificated form, (D) on federal book entry at the
federal reserve bank or (E) with the prior written approval of customer
at any other location;
(v) register and/or hold Property in the name of any nominee of Bank or
its Foreign Sub-custodians or any of their respective nominees or any
authorized agent, subsidiary or other entity, including (without
limiting the generality of the foregoing) the nominee of any central
depository, clearing corporation or other entity with which securities
may be deposited (and Customer hereby indemnifies and holds harmless
Bank and any such nominee against any liability as a holder of record);
(vi) hold any investment in bearer form;
(vii) in connection with the receipt of Property, accept documents in
lieu of such Property as long as such documents contain the agreement
of the issuer thereof to hold such Property subject to Bank's sole
order;
(viii) make, execute, acknowledge and deliver as agent, any and all
documents or instruments (including but not limited to all
declarations, affidavits and certificates of ownership) that may be
necessary or appropriate to carry out the powers granted herein;
(ix) employ and consult with, and obtain advice from, suitable agents,
including auditors and legal counsel (who may be counsel to Customer or
the Bank, and Bank shall incur no liability in acting in good faith in
accordance with the reasonable advice and opinion of such;
(x) make any payments incidental to or in connection with this
paragraph 4(a); and
(xi) exercise all other rights and powers and to take any reasonable
action it deems necessary in carrying out the purposes of this
Agreement.
(b) Discretionary Corporate Action. Whenever Securities or instruments
(including, but not limited to, warrants, options, tenders, options to tender
or non-mandatory puts or calls) confer optional rights on Customer or provide
for discretionary action or alternative courses of action by Customer, Customer
shall be responsible for making any decisions relating thereto and for
instructing Bank to act. In order for Bank to act, it must receive Customer's
instructions at Bank's offices, addressed as Bank may from time to time
request, by no later than noon (Eastern Standard Time) at least two (2)
business days prior to the last scheduled date to act with respect to such
securities or instruments (or such earlier date or time as Bank may notify
Customer). Absent Bank's timely receipt of such instruction, Bank shall not be
liable for failure to take any action relating to or to exercise any rights
conferred by such securities or instruments.
(c) Voting. with respect to all Securities, however registered, the voting
rights are to be exercised by Customer or its designee. with respect to
securities issued in the united states, Bank's only duty shall be to mail to
Customer any documents (including proxy statements, annual reports and signed
proxies) relating to the exercise of such voting rights. With respect to
securities issued outside the united states at the request of Customer, Bank
will provide Customer with access to a provider of global proxy services (the
cost of which will be paid by Customer). If Customer determines not to utilize
the services of such global proxy services provider, Bank will provide Customer
at no cost with proxy material, but otherwise shall have no obligations with
respect to voting.
(d) Foreign Exchange Transactions. Bank, as principal, is authorized to
enter into spot or forward foreign exchange contracts with customer and may
provide such foreign exchange services to customer through its subsidiaries or
affiliates or through foreign sub-custodians. instructions, including standing
instructions, may be issued with respect to such contracts, but bank may
establish rules or limitations concerning any foreign exchange facility made
available to customer. in all cases where bank, its subsidiaries or affiliates
or foreign sub-custodians enter into foreign exchange contracts relating to the
account, the terms and conditions of such foreign exchange contracts shall
apply to such transaction. neither bank nor any foreign sub-custodian shall be
liable for any fluctuations or changes in foreign exchange rates, which shall
be the sole risk and liability of Customer.
5. Agreements with Foreign Sub-custodians. Each agreement with a Foreign
Sub-custodian shall provide that: (a) the Funds' assets will not be subject to
any right, charge, security interest, lien or claim of any kind in favor of the
foreign sub-custodian or its creditors or agent, except a claim of payment for
their safe custody or administration; (b) beneficial ownership of the Fund's
assets will be freely transferable without the payment of money or value other
than for custody or administration; (c) adequate records will be maintained
separately identifying the assets; (d) officers of or auditors employed by, or
other representatives of the Fund and any sub-custodian, including to the
extent permitted under applicable law the independent public accountants for
the fund, will be given access to the books and records of the Foreign
Sub-custodian relating to its actions under its agreement with the Bank; and
(e) assets of the Fund held by the Foreign Sub-custodian will be subject only
to the instructions of the Bank, its' sub-custodian or its agents.
6. Transactions in Foreign Custody Account.
(a) Except as otherwise provided in Paragraph (b) of this Section 6, the
provisions of Section 3 of the Custody Agreement shall apply, equally to the
Securities of the Fund held outside the United States by Foreign Sub-custodian.
(b) Notwithstanding any provision of this Agreement to the contrary,
settlement and payment for Securities received for the account of the Fund and
delivery of Securities maintained for the account of the Fund may be effected
in accordance with the customary established securities trading or securities
processing practices and procedures in the jurisdiction or market in which the
transaction occurs, including, without limitation, delivering securities to the
purchaser thereof or to a dealer therefor (or an agent for such purchaser or
dealer) against a receipt with expectation of receiving later payment for such
securities from such purchaser or dealer.
(c) Securities maintained in the custody of a Foreign Sub-custodian may be
maintained in the name of such entity's nominee to the same extent as set forth
in Section 3 of this Agreement, and the Fund agrees to hold any such nominee
harmless from any liability as a holder of record of such securities.
7. Liability of Foreign Sub-Custodians. Each agreement pursuant to which
the Bank or its Sub-custodian employs a foreign banking institution as a
Foreign Sub-custodian shall to the extent applicable require the institution to
exercise the customary standard of care in the performance of its duties and to
indemnify, and hold harmless, the Bank and any Sub-Custodian for the benefit of
the Fund for and against any loss, damage, cost, expense, liability or claim
arising out of or in connection with the institution's performance of such
obligations. At the election of the Fund, it shall be entitled to be subrogated
to the rights of the Bank or any sub-custodian with respect to any claims
against a Foreign Sub-custodian as a consequence of any such loss, damage,
cost, expense, liability or claim if and to the extent that the Fund has not
been made whole for any such loss, damage, cost, expense, liability or claim.
8. Tax Law. The Bank shall have no responsibility or liability for any
obligations now or hereafter imposed on the Fund or any sub-custodian by the
tax law of the United States of America or any state or political subdivision
thereof. It shall be the responsibility of the Fund to notify the Bank and any
sub-custodian of the obligations imposed on the Fund or any as sub-custodian of
the Fund by the tax law of jurisdictions other than those mentioned in the
above sentence, including responsibility for withholding and other taxes,
assessments or other governmental charges, certifications and governmental
reporting. The sole responsibility of the bank with regard to such tax law
shall be to use reasonable efforts to assist the fund with respect to any claim
for exemption or refund.
9. Compensation, Fees, Expenses and Taxes.
(a) In consideration of the services to be rendered pursuant to this
Addendum, Customer shall compensate Bank in accordance with and pursuant to the
Fee Schedule annexed hereto as Schedule B, which Fee Schedule may be amended
from time to time upon thirty (30) days' prior written notice to Customer.
(b) In addition, Customer shall be responsible for and shall reimburse
Bank for all reasonable costs, expenses, and fees incurred by Bank in
connection with this Agreement, including (without limiting the generality of
the foregoing) all brokerage fees and costs and transfer taxes incurred in
connection with the purchase, sale or disposition of Property, and all income
taxes or other taxes of any kind whatsoever which may be levied or assessed
under existing or future laws upon or in respect to the Property, and all other
similar expenses related to the administration of the Account incurred by Bank
in the performance of its duties hereunder (including reasonable attorneys'
fees and expenses).
(c) Fees and reimbursement for costs and expenses shall be paid monthly
after the last business day of each calendar month, with the first payment for
the calendar month following any activity as mutually agreed upon by the
parties.
(d) In the event services are rendered for less than a calendar month or
this Addendum is terminated prior to the end of a calendar month, Customer
shall pay Bank's fee prorated for the portion of the calendar month such
services are rendered, plus any reasonable costs and expenses incurred by Bank
for Customer's Account up to or subsequent to the date of termination.
10. Limitation of Liability; Indemnification. (a) Bank shall not be liable
for any Losses (as defined below) or action taken or omitted or for any loss or
injury resulting from its actions or its performance or lack of performance of
its duties hereunder in the absence of negligence or reckless misconduct on its
part. With respect to Losses incurred by Customer as a result of the acts or
the failure to act by any Sub-custodian or Foreign Sub-custodian, Bank shall
take appropriate action to recover such Losses from such sub-custodian; and
Bank's sole responsibility and liability to Customer shall be limited to
amounts so received from such Sub-custodian (exclusive of costs and expenses
incurred by Bank). In no event shall Bank or any Sub-custodian be liable (i)
for acting in accordance with instructions from Customer or any authorized
agent of Customer, (ii) for special or consequential damages, (iii) for the
acts or omissions of its nominees, correspondents, designees or subagents
(provided that bank shall be liable for any negligence or reckless misconduct
related to the appointment of such nominees, correspondents, designees or
subagents), (iv) for holding Property in any particular country, including, but
not limited to, Losses resulting from nationalization, expropriation or other
governmental actions; regulation of the banking or securities industry;
currency controls or restrictions, devaluations or fluctuations; or market
conditions which prevent the orderly execution of securities transactions or
affect the value of Property where such Losses are not related to any
negligence or reckless misconduct on the part of the Bank and sub-custodian, or
(v) for any losses due to forces beyond the control of Bank or any
sub-custodian, including, without limitation, strikes, work stoppages, acts of
war or terrorism, insurrection, revolution, nuclear or natural catastrophes or
acts of God, and interruptions, loss or malfunctions of utilities,
communications or computer (software and hardware) services where such Losses
are not related to any negligence or reckless misconduct on the part of the
Bank and sub-custodian.
(b) Customer shall be liable for and shall indemnify Bank and hold it
harmless against any and all claims, losses, liabilities, damages or expenses
(including reasonable attorneys' fees and expenses) (collectively referred to
herein as "Losses") however arising from or in connection with this Addendum or
the performance of its duties hereunder, where such Losses are not related to
any negligence or reckless misconduct on the part of the Bank, provided,
however, that nothing contained herein shall limit or in any way impair the
right of Bank to indemnification under any other provision of this Agreement.
(c) Customer understands that when a sub-custodian is instructed to
deliver Property against payment, it may deliver such Property prior to
actually receiving final payment and that, as a matter of bookkeeping
convenience, it may credit customer's account with anticipated proceeds of sale
prior to actual receipt of final payment. The risk of non-receipt of payment
shall be Customer's and Bank or said sub-custodian shall have no liability
therefor.
(d) All credits to the Account of Customer of anticipated proceeds of
sales and redemptions of Property and of anticipated income from Property shall
be conditional upon receipt of final payment and may be reversed to the extent
final payment is not received. In the event that Bank in its discretion
advances funds to Customer to facilitate the settlement of any transaction, or
elects to permit Customer to use funds credited to the account in anticipation
of final payment, or if Customer otherwise becomes indebted to Bank (including
indebtedness as a result of overdrafts in the Account), Customer shall,
promptly upon demand, reimburse Bank for such amounts plus any interest
thereon.
(e) Bank's duties and responsibilities are solely those set forth herein
and it shall not be obligated to perform any services or take any action not
provided for herein unless specifically agreed to by it in writing. Nothing
contained in this agreement shall cause Bank to be deemed a trustee or
fiduciary for or on behalf of Customer.
11. Reports; Statements of Account; Computer Services. (a) Written
Reports. Bank shall provide Customer on a periodic basis with Statements of
Assets in the Account ("Statement of Assets") and Statements of Account showing
all transactions in the Account ("Statement of Account"). Statement of Assets,
Statement of Account and Confirmations shall identify the Property held, and
transactions involving, each Sub-custodian.
(b) Examination of Reports. Customer shall examine promptly each such
Confirmation, Statement of Account and Statement of Assets.
12. Notices, Instructions and Other Communications. Unless otherwise
specified herein, all Statements of Assets, Statements of Account and
Confirmations shall be in writing and all notices, instructions or other
communications may be given either orally or in writing (including by tested
telex, telecopy or other electronic transmission, which may include Trade
Reports issued by the institutions Delivery System or Depository Trust
Company). All Statements of Assets, Statements of Account, Confirmations,
notices, instructions and other communications shall be delivered to the
address (post office, telephone, telex or other electronic address) set forth
on Schedule C annexed hereto, which address may be changed upon thirty (30)
days' prior written notice to the other party. Customer shall furnish, and
shall cause each Investment Manger to furnish, to Bank a certificate indicating
those person(s) who are authorized to give Bank instructions hereunder and with
specimen signatures of such person. Bank is authorized to comply with and rely
upon any such notices, instructions or other communications believed by it to
have been sent or given by an authorized person. Bank's understanding, if
reasonable under the circumstances, of any oral notice, instruction or other
communication shall be deemed controlling (whether given or received by Bank),
notwithstanding any discrepancy between such understanding and any subsequent
confirming document or communication.
13. Appointment of Investment Manager. Customer may, from time to time,
appoint one or more investment managers (each an "Investment Manager") to
manage the Property in the Account, to vote securities in the Account, to
purchase, sell or otherwise acquire or dispose of Property in the Account, and
to engage in foreign exchange transactions on behalf of Customer. Upon receipt
of notice of the appointment of any Investment Manager, which notice shall be
annexed hereto as Schedule D (as such Schedule may be amended from time to time
by Customer), and except as otherwise provided herein, Bank is to rely upon and
comply with (and shall have no liability for relying upon and complying with)
instructions and directions from the Investment Manager (including instructions
and directions with respect to the voting of securities in the Account, the
purchase, sale or other acquisition or disposition of Property in the Account
and the furnishing of information and records relating to the Account to the
Investment Manager) to the same extent as if such instructions and directions
were given by Customer and Bank, subject to Section 12 hereof, shall have no
duty or obligation to determine the propriety or appropriateness of such
instructions or directions. Any such appointment shall remain in full force and
effect unless and until Bank receives written notice from Customer to the
contrary.
14. Termination. This Addendum shall be continuing and shall remain in
full force and effect until terminated by Bank or Customer upon the termination
of the Custody Agreement between Customer and Bank.
15. Assignment. Neither bank nor Customer shall assign this Addendum
without first obtaining the written consent of the other party hereto.
16. Headings and Capital Terms. The section and paragraph headings
contained herein are for convenience and reference only and are not intended to
define or limit the scope of any provision of this Agreement. All capitalized
terms used in this Addendum but not defined shall have the meanings assigned to
such terms in the Custody Agreement.
17. Entire Agreement; Amendment. This Addendum shall constitute the entire
agreement of the parties with respect to the subject matter and supersedes all
prior oral or written agreements in regard thereto. Except as otherwise
provided, this Addendum may be amended only by an instrument in writing duly
executed by both parties hereto.
18. Governing Law; Jurisdiction; Certain Waivers. (a) This Addendum shall
be interpreted and construed in accordance with the internal substantive laws
of the State of Ohio.
(b) The invalidity, illegality or unenforceability of any provision of
this Addendum shall in no away affect the validity, legality or enforceability
of any other provision; and if any provision is held to be unenforceable as a
matter of law, the other provisions shall not be affected thereby and shall
remain in full force and effect.
19. Rights and Remedies. The rights and remedies conferred upon the
parties hereto shall be cumulative, and the exercise of waiver of any such
rights or remedy shall not preclude or inhibit the exercise or any additional
rights or remedies. The waiver of any right or remedy hereunder shall not
preclude or inhibit the subsequent exercise of such right or remedy.
IN WITNESS WHEREOF, this Addendum has been executed and attested as of the
day and year first above written, by the duly authorized offices of Customer
and Bank.
CITIZENS FUNDS
Attest:
By: Xxxx X. Xxxxxxxx
------------------------ ------------------------------
Name: Name: Xxxx X. Xxxxxxxx
Title: Title: Treasurer
FIFTH THIRD BANK
ATTEST:
By: Xxxxxxx Xxxxxx
------------------------ ------------------------------
Name: Name: Xxxxxxx Xxxxxx
Title: Title: AVP
SCHEDULE A
FIFTH THIRD BANK
GLOBAL CUSTODY NETWORK
COUNTRIES AND SUB-CUSTODIANS
FOR
CITIZENS FUNDS
_______________ , 2000
COUNTRY SUB-CUSTODIAN
Argentina Banco Rio de xx Xxxxx, XX
Australia Commonwealth Bank of Australia, Burwood
Austria Bank Austria, AG
*Bangladesh Standard Chartered Bank, Dhaka Branch
Belgium Banque Bruxelles Xxxxxxx, Brussels
Botswana Stanbic Bank Botswana (SCMB), Gaborone
*Brazil Bank of Boston, Sao Paulo
Canada Royal Bank of Canada, Toronto
*Chile Bank of Boston, Santiago
*China Standard Chartered Bank, Shanghai and Shenzhen Branches
*Colombia Cititrust Colombia SA Sociedad Fiduciaria
Cyprus Bank of Cyprus, Nicosia
*Czech Republic Ceskoslovenska Obchodni Banka A.S. (CSOB), Prague
Denmark Den Danske Bank, Copenhagen
*Ecuador Citibank, NA, Quito
*Egypt Citibank, NA, Cairo
Finland Xxxxxx Bank Ltd., Helsinki
France Banque Paribas, Paris
Germany Dresdner Bank, Frankfurt
Ghana Merchant Bank of Ghana, Ltd (SCMB), Accra
*Greece Paribas, Athens
Hong Kong Hongkong and Shanghai Banking Corp., Hong Kong branch
*Hungary Citibank Budapest Rt.
*India Deutsche Bank, Mumbai
Ireland Allied Irish Banks plc, Dublin
*Israel Bank Leumi LE-Israel B.M., Tel Aviv
Italy Banca Commerciale Italiana, Milan
Ivory Coast Societe Generale de Banques en Cote d'Ivoire
Japan Bank of Tokyo-Mitsubishi, Ltd., Tokyo
*Jordan British Bank of the Middle East, Amman
Kenya Stanbic Bank Kenya Ltd (SCMB), Nairobi
*Korea Standard Chartered Bank, Seoul
Malaysia Hongkong Bank Malaysia Berhad, Kuala Lumpur
Mauritius Hongkong and Shanghai Banking Corp, Ltd.
Mexico Banco Nacional de Mexico
*Morocco Banque Commerciale du Maroc (BCM), Casablanca
Netherlands Fortis Bank NV
New Zealand ANZ Banking Group, Ltd., Wellington
*Norway Den Norske Bank, Oslo
Pakistan Standard Chartered Bank, Karachi
*Peru Citibank, NA, Lima branch
*Poland Bank Handlowy W Warszawie SA, Warsaw
Portugal Banco Comercial Portugues, Lisbon
*Russia Credit Suisse First Boston, Moscow (Equities)
Singapore Development Bank of Singapore, Singapore
*Slovak Republic Ceskoslovenska Obchodna Banka, AS, Bratislava
South Africa Standard Bank of South Africa, Ltd., Johannesburg
Spain Banco Bilbao Vizcaya, Madrid
*Sri Lanka Standard Chartered Bank, Colombo
Swaziland Stanbic Bank Swaziland Ltd (SCMB), Mbabane
Sweden Skandinaviska Enskilda Banken (SEB), Stockholm
Switzerland Credit Suisse First Boston, Zurich
*Taiwan Hongkong and Shanghai Banking Corp, Taipei
Thailand Standard Chartered Bank, Bangkok
Turkey Ottoman Bank
United kingdom The Bank of New York, London
Uruguay BankBoston, Montevideo
Venezuela Citibank, NA, Caracas
Zambia Stanbic Bank Zambia Ltd (SCMB), Lusaka
Zimbabwe Stanbic Bank Zimbabwe Ltd (SCMB), Harare
SCHEDULE B
FIFTH THIRD BANK
GLOBAL CUSTODY AGREEMENT
FEE SCHEDULE
SCHEDULE C
FIFTH THIRD BANK
GLOBAL CUSTODY AGREEMENT
NOTICES
__________, 2000
TO FIFTH THIRD BANK:
Post Office Address: Fifth Third Center
00 Xxxxxxxx Xxxxxx Xxxxx
Mail Drop 1COM62
Xxxxxxxxxx, Xxxx 00000
Telephone:
Telex:
Telecopy:
TO CITIZENS FUNDS
Post Office Address: 000 Xxxxxxxx Xxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
SCHEDULE D
FIFTH THIRD BANK
GLOBAL CUSTODY AGREEMENT
INVESTMENT MANAGERS
__________, 2000
CLEMENTE CAPITAL, INC.
Carnegie Hall Tower
000 X. 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
INCUMBENCY AND SIGNATURE CERTIFICATE
The undersigned hereby certifies to Fifth Third Bank that I am Secretary of
____________________________ (the "Corporation"), a ___________ corporation,
and that, as such, I am duly authorized to execute this Certificate on behalf
of the Corporation, and further certifies that each of the following persons,
as of the date hereof, is a duly elected, qualified and acting officer of the
Corporation, holding the office of the Corporation set opposite his name below;
and that the signatures of each such person appearing opposite such person's
name is such person's own true signature:
NAME: OFFICER: SIGNATURE:
WITNESS the seal of the Corporation and the signature of the undersigned this
_________, 2000.
[Corporate Seal] _____________________________
Secretary
The undersigned, the President of the Corporation and one of the officers named
in the foregoing Certificate, hereby confirms such Certificate on the date
hereof.
_____________________________
Name:
Title: President
_____________________________
Name:
Title:
CORPORATE RESOLUTION
The undersigned hereby certifies to Fifth Third Bank that the Board of
Directors of _______________, a corporation organized under the laws of , duly
adopted the following resolutions on the _____ day of __________________, 2000,
and that such resolutions are in full force and effect:
RESOLVED, that any of the following officers, employees or agents of
this corporation, acting (alone)(jointly), be and hereby (is)(are)
authorized and empowered to enter into a Global Custody Agreement with
Fifth Third Bank substantially in the form attached hereto with such
changes thereto as the person executing that same shall deem
advisable. The execution of such agreement by such person to be
conclusive evidence of such approval.
Name Title
and RESOLVED, that any _________________ of the following persons,
acting (alone)(jointly), be and hereby (is)(are) authorized from time
to time to designate in writing to Fifth Third Bank those officers,
employees and other agents of this corporation authorized to issue
instructions under such Agreement, including, without limitation, with
respect to deposit or withdrawal of cash and the deposit, withdrawal,
purchase or sale of securities and other property without limitation
as to price, items or condition and otherwise to deal therewith, all
pursuant to the provisions of such Global Custody Agreement:
Name Title
and RESOLVED, that notice of any change in these resolutions be
communicated in writing to Fifth Third Bank, and, until Fifth Third
Bank has actually received such notice, it is authorized to act
pursuant to these resolutions.
IN WITNESS WHEREOF, I have hereunto set my hand as secretary of said
corporation and affixed the corporate seal this ____ day of _____________, 2000.
[CORPORATE SEAL]
_____________________________
Secretary
STATE OF OHIO )
) SS
COUNTY OF XXXXXXXX )
On the _____ day of _________________, 2000, before me personally came
_____________, to me known, who, being by me duly sworn, did depose and say
that he/she resides at _____________________; that he/she is _____________ of
_________________ Fifth Third Bank one of the corporations described in and
which executed the above instrument; that he/she knows the corporate seal of
said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by the authority of the Board of Directors of said
corporation; and that he/she signed his/her name thereto by like authority.
_____________________________
Notary Public
STATE OF OHIO )
) SS
COUNTY OF XXXXXXXX )
On the _____ day of _________________, 2000, before me personally came
_____________, to me known, who, being by me duly sworn, did depose and say
that he/she resides at _____________________; that he/she is _____________ of
_________________ one of the corporations described in and which executed the
above instrument; that he/she knows the corporate seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by the authority of the Board of Directors of said corporation; and
that he/she signed his/her name thereto by like authority.
_____________________________
Notary Public
FOREIGN CUSTODY MANAGER AGREEMENT
AGREEMENT, made as of May 21, 2001, between Citizens Funds (the "Fund")
and FIFTH THIRD BANK ("Fifth Third").
W I T N E S S E T H :
WHEREAS, the Fund desires to appoint Fifth Third as a Foreign Custody
Manager on the terms and conditions contained herein;
WHEREAS, Fifth Third desires to serve as a Foreign Custody Manager and
perform the duties set forth herein on the terms and conditions contained
herein;
NOW, THEREFORE, in consideration of the mutual promises hereinafter
contained in this Agreement, the Fund and Fifth Third hereby agree as follows:
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and phrases, unless
the context otherwise requires, shall have the following meanings;
1. Capitalized terms used in the Agreement and not otherwise defined in
the Agreement shall have the meanings given such terms in the Rule.
2. "Board" shall mean the board of directors or board of trustees, as the
case may be, of the Fund.
3. "Eligible Foreign Custodian" shall have the meaning provided in the
Rule.
4. "Monitoring System" shall mean a system established by Fifth Third to
fulfill the Responsibilities specified in clauses (1)(d) and (1)(e) of Article
III of this Agreement.
5. "Responsibilities" shall mean the responsibilities delegated to Fifth
Third under the Rule as a Foreign Custody Manager with respect to each
Specified Country and each Eligible Foreign Custodian selected by Fifth Third,
as such responsibilities are more fully described in Article III of this
Agreement.
6. "Rule" shall mean Rule 17f-5 under the Investment Company Act of 1940,
as amended, as such Rule became effective on June 12, 2000
7. "Specified Country" shall mean each country listed on Schedule I
attached hereto and each country, other than the United States, constituting
the primary market for a security with respect to which the Fund has given
settlement instruction to Fifth Third as custodian (the "Custodian") under its
Custody Agreement with the Fund.
ARTICLE II
FIFTH THIRD AS FOREIGN CUSTODY MANAGER
1. The Fund on behalf of its Board hereby delegates to Fifth Third with
respect to each Specified Country the Responsibilities.
2. Fifth Third accepts the Board's delegation of Responsibilities with
respect to each Specified Country and agrees in performing the Responsibilities
as a Foreign Custody Manager to exercise reasonable care, prudence and
diligence such as a person having responsibility for the safekeeping of the
Fund's assets would exercise.
3. Fifth Third shall provide to the Board at such times as the Board deems
reasonable and appropriate based on the circumstances of the Fund's foreign
custody arrangements, written reports notifying the Board of the placement of
assets of the Fund with a particular Eligible Foreign Custodian within a
Specified Country and of any material change in the arrangements (including the
contract governing such arrangements) with respect to assets of the Fund with
any such Eligible Foreign Custodian.
ARTICLE III
RESPONSIBILITIES
1. Subject to the provisions of this agreement, Fifth Third shall with
respect to each Specified Country select an Eligible Foreign Custodian. In
connection therewith, Fifth Third shall: (a) determine that assets of the Fund
held by such Eligible Foreign Custodian will be subject to reasonable care,
based on the standards applicable to custodians in the relevant market in which
such Eligible Foreign Custodian operates, after considering all factors
relevant to the safekeeping of such assets, including, without limitation,
those contained in Section (c)(1) of the Rule; (b) determine that the Fund's
foreign custody arrangements with each Eligible Foreign Custodian are governed
by a written contract with the Custodian which will provide reasonable care for
the Fund's assets based on the standards specified in paragraph (c)(1) of the
Rule; (c) determine that each contract with an Eligible Foreign Custodian shall
include the provisions specified in paragraph (c)(2)(i)(A) through (F) of the
Rule or, alternatively, in lieu of any or all of such (c)(2)(i)(A) through (F)
provisions, such other provisions as Fifth Third determines will provide, in
their entirety, the same or a greater level of care and protection for the
assets of the Fund as such specified provisions; (d) monitor pursuant to the
Monitoring System the appropriateness of maintaining the assets of the Fund
with a particular Eligible Foreign Custodian pursuant to paragraph (c) (1) of
the Rule and the performance of the contract governing such arrangement under
paragraph (c)(2) of the Rule; and (e) advise the Fund whenever Fifth Third
determines under the Monitoring System that an arrangement (including any
material change in the contract governing such arrangement) described in the
preceding clause (d) no longer meets the requirements of the Rule and that the
Fund must withdraw its assets from such custodian as soon as reasonably
practicable.
2. For purposes of clause (d) of the preceding Section 1 of this Article,
Fifth Third's determination of appropriateness shall not include nor be deemed
to include, any evaluation of Country Risks associated with investment in a
particular country. For purposes hereof, "Country Risks" shall mean systemic
risks of holding assets in a particular country including but not limited to
(a) an Eligible Foreign Custodian's use of any depositories that act as or
operate a system or a transnational system for the central handling of
securities or any equivalent book-entries; (b) such country's financial
infrastructure; (c) such country's prevailing custody and settlement practices;
(d) nationalization, expropriation or other governmental actions; (e)
regulation of the banking or securities industry; (f) currency controls,
restrictions, devaluations or fluctuations; and (g) market conditions which
affect the orderly execution of securities transactions or affect the value of
securities
ARTICLE IV
REPRESENTATIONS
1. The Fund hereby represents that: (a) this Agreement has been duly
authorized, executed and delivered by the Fund, constitutes a valid and legally
binding obligation of the Fund enforceable in accordance with its terms, and no
statute, regulation, rule, order, judgment or contract binding on the Fund
prohibits the Fund's execution or performance of this Agreement; (b) this
Agreement has been approved and ratified by the Board at a meeting duly called
and at which a quorum was at all times present; and (c) the Board or its
investment advisor has considered the Country Risks associated with investment
in each Specified Country listed on Schedule 1 and will have considered such
Country Risks prior to any settlement instructions being given to the Custodian
with respect to any other Specified Country.
2. Fifth Third hereby represents that: (a) Fifth Third is duly organized
and existing under the laws of the State of Ohio, with full power to carry on
its businesses as now conducted, and to enter into this Agreement and to
perform its obligations hereunder; (b) this Agreement has been duly authorized,
executed and delivered by Fifth Third, constitutes a valid and legally binding
obligation of Fifth Third enforceable in accordance with its terms, and no
statute, regulation, rule, order, judgment or contract binding on Fifth Third
prohibits Fifth Third's execution or performance of this Agreement; and (c)
Fifth Third has established the Monitoring System.
ARTICLE V
CONCERNING FIFTH THIRD
1. Fifth Third shall not be liable for any costs, expenses, damages,
liabilities or claims, including attorneys' and accountants' fees, sustained or
incurred by, or asserted against, the Fund except to the extent the same arises
out of the failure of Fifth Third to exercise the care, prudence and diligence
required by Section 2 of Article II hereof. In no event shall Fifth Third be
liable to the Fund, the Board, or any third party for special, indirect or
consequential damages, or for lost profits or loss of business, arising in
connection with this Agreement.
2. The Fund agrees to indemnify Fifth Third and holds it harmless from and
against any and all costs, expenses, damages, liabilities or claims, including
attorneys' and accountants' fees, sustained or incurred by or asserted against
Fifth Third by reason or as a result of any action or inaction, arising out of
Fifth Third's performance hereunder, provided that the Fund shall not indemnify
Fifth Third to the extent any such costs, expenses, damages, liabilities or
claims arise out of Fifth Third's failure to exercise the reasonable care,
prudence and diligence required by Section 2 of Article II hereof.
3. Fifth Third shall only have such duties as are expressly set forth
herein. Without limiting the generality of the foregoing, in no event shall
Fifth Third be liable for any Country Risks associated with investments in a
particular country.
ARTICLE VI
MISCELLANEOUS
1. This Agreement constitutes the entire agreement between the Fund and
Fifth Third, and no provision in the Custody Agreement between the Fund and the
Custodian shall affect the duties and obligations of Fifth Third hereunder, nor
shall any provision in this Agreement affect the duties or obligations of the
Custodian under the Custody Agreement.
2. Any notice or other instrument in writing, authorized or required by
this Agreement to be given to Fifth Third, shall be sufficiently given if
received by it at its offices at Fifth Third Center, 000 Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxx 00000, Attention: Mutual Fund Client Services, or at such
other place as Fifth Third may from time to time designate in writing.
3. Any notice or other instrument in writing, authorized or required by
this Agreement to be given to the Fund shall be sufficiently given if received
by it at its offices at 000 Xxxxxxxx Xxx, Xxxxx 000, Xxxxxxxxxx, XX 00000.
4. In case any provision in or obligation under this Agreement shall be
invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
thereby. This Agreement may not be amended or modified in any manner except by
a written agreement executed by both parties. 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
either party without the written consent of the other.
5. This Agreement shall be construed in accordance with the internal
substantive laws of the State of Ohio, without regard to conflicts of laws
principles thereof. The Fund and Fifth Third each hereby irrevocably waive any
and all rights to a trial by jury in any legal proceeding arising out of or
relating to this Agreement.
6. The parties hereto agree that in performing hereunder, Fifth Third is
acting solely on behalf of the Fund and no contractual or service relationship
shall be deemed to be established hereby between Fifth Third and any other
person.
7. This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original, but such counterparts shall, together,
constitute only one instrument.
8. This Agreement shall terminate simultaneously with the termination of
the Custody Agreement between the Fund and the Custodian, and may otherwise be
terminated by either party giving to the other party a notice in writing
specifying the date of such termination, which shall be not less than thirty
(30) days after the date of such notice.
9. In consideration of the service provided by Fifth Third hereunder, the
Fund shall pay to Fifth Third such compensation and out-of-pocket expenses as
may be agreed upon from time to time.
IN WITNESS WHEREOF, the Fund and Fifth Third have caused this Agreement to
be executed by their respective officers, thereunto duly authorized, as of the
date first above written.
CITIZENS FUNDS
By: Xxxx X. Xxxxxxxx
Title: Treasurer
FIFTH THIRD BANK
By: Xxxxxxxxx Ok
Title: Trust Officer
SCHEDULE 1
SPECIFIED COUNTRIES
AMENDMENT
AMENDMENT made as of May 31, 2001 to that certain Custody Agreement dated
as of September 29, 2000 between Citizens Funds (the "Fund") and Fifth Third
Bank ("Custodian") (such Custody Agreement, including the Global Custody
Addendum thereto, hereinafter referred to as the "Custody Agreement").
WITNESSETH:
WHEREAS, Rule 17f-7 under the Investment Company Act of 1940, as amended
(the "Rule"), was adopted on June 12, 2000 by the Securities and Exchange
Commission:
WHEREAS, the Fund and Custodian desire to amend the Custody Agreement to
conform with the Rule;
NOW, THEREFORE, the Fund and Custodian hereby agree as follows:
1. The following new Section is hereby added to the Custody Agreement:
Foreign Depositories.
(a) As used in this Section, the term "Foreign Depository" shall mean (a)
Euroclear, (b) Clearstream Banking, societe anonyme, (c) each Eligible
Securities Depository as defined in Rule 17f-7 under the Investment Company Act
of 1940, as amended, identified to the Fund by the Custodian from time to time,
as needed and on a quarterly basis otherwise, and (d) the respective successors
and nominees of the foregoing.
(b) Notwithstanding any other provision in this Agreement, the Fund hereby
represents and warrants, which representations and warranties shall be
continuing and shall be deemed to be reaffirmed upon any delivery of a
Certificate or any giving of Oral Instructions, Instructions, or Written
Instructions, as the case may be, that the Fund or its investment adviser has
determined that the custody arrangements of each Foreign Depository provide
reasonable safeguards against the custody risks associated with maintaining
assets with such Foreign Depository within the meaning of Rule 17f-7 under the
Investment Company Act of 1940, as amended.
(c) With respect to each Foreign Depository, Custodian shall exercise
reasonable care, prudence, and diligence (i) to provide the Fund with an
analysis of the custody risks associated with maintaining assets with the
Foreign Depository, and (ii) to monitor such custody risks on a continuing
basis and promptly notify the Fund of any material change in such risks. The
analysis provided pursuant to clause (i) shall be updated by the Custodian and
provided to the Fund when any Foreign Depository is added to the list of
Foreign Depositories identified to the Fund and from time to time as Custodian
deems necessary. The Fund acknowledges and agrees that such analysis and
monitoring shall be made on the basis of, and limited by, information gathered
from Subcustodians or through publicly available information otherwise obtained
by Custodian, and shall not include any evaluation of Country Risks. As used
herein the term "Country Risks" shall mean with respect to any Foreign
Depository: (a) the financial infrastructure of the country in which it is
organized, (b) such country's prevailing settlement practices, (c)
nationalization, expropriation or other governmental actions, (d) such
country's regulation of the banking or securities industry, (e) currency
controls, restrictions, devaluations or fluctuations, and (f) market conditions
which affect the order execution of securities transactions or affect the value
of securities.
(d) If an arrangement with a Foreign Depository no longer meets the
requirements of Rule 17f-7, the Custodian shall promptly notify the Fund of the
failure of the depository to meet the requirements of Rule 17f-7 and of the
necessity to promptly withdraw the Fund's assets from the depository. At the
Fund's request, the Custodian shall withdraw the Fund's assets from the
depository as soon as reasonably practicable.
2. This Amendment may be executed in any number of counterparts, each of
which shall be deemed to be an original, but such counterparts, shall,
together, constitute only one amendment.
IN WITNESS WHEREOF, the Fund and Custodian have caused this Amendment to
be executed by their respective officers, thereunto duly authorized, as of the
day and year first above written.
CITIZENS FUNDS
By: Xxxx X. Xxxxxxxx
Title: Treasurer
FIFTH THIRD BANK
By: Xxxxxxxxx Ok
Title: Trust Officer
