CUSTODIAN AGREEMENT
Between
XXXXXX XXXXXXX MUTUAL FUND
and
STATE STREET BANK AND TRUST COMPANY
TABLE OF CONTENTS
1. Employment of Custodian and Property to be
Held By It..................................................1
2. Duties of the Custodian with Respect to Property
of the Fund Held by the Custodian...........................2
2.1 Holding Securities......................................2
2.2 Delivery of Securities..................................3
2.3 Registration of Securities..............................6
2.4 Bank Accounts...........................................7
2.5 Payments for Shares.....................................8
2.6 Investment and Availability of Federal Funds............8
2.7 Collection of Income....................................8
2.8 Payment of Fund Moneys..................................9
2.9 Liability for Payment in Advance of
Receipt of Securities Purchased........................ll
2.10 Payments for Repurchases or Redemptions
of Shares of the Fund..................................12
2.11 Appointment of Agents..................................13
2.12 Deposit of Fund Assets in Securities System............13
2.13 Ownership Certificates for Tax Purposes................17
2.14 Proxies................................................17
2.15 Communications Relating to Fund
Portfolio Securities...................................17
2.16 Proper Instructions....................................18
2.17 Actions Permitted Without Express Authority............l9
2.18 Evidence of Authority..................................l9
3. Duties of Custodian With Respect to the Books
of Account and Calculation of Net Asset Value
and Net Income..............................................20
4. Records.....................................................21
5. Opinion of Fund's Independent Accountant....................21
6. Reports to Fund by Independent Public Accountants...........22
7. Compensation of Custodian...................................22
8. Responsibility of Custodian.................................22
9. Effective Period, Termination and Amendment.................23
10. Successor Custodian.........................................25
11. Interpretive and Additional Provisions......................26
12. Additional Funds............................................26
13. Massachusetts Law to Apply..................................27
14. Prior Contracts.............................................27
15. Limitation of Liability.....................................27
CUSTODIAN CONTRACT
------------------
. .
(XXXXXX XXXXXXX CASH MANAGEMENT FUND)
CONTRACT made as of this 19th day of March, 1981 by and between Xxxxxx
Xxxxxxx Mutual Fund, a Massachusetts business trust having a principal place of
business at Three Center Plaza, Boston, Massachusetts (hereinafter called the
"Trust") and STATE STREET BANK AND TRUST COMPANY, a Massachusetts banking
corporation having its principal place of business at 000 Xxxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000 (hereinafter called "Custodian").
WHEREAS, the Trust is authorized to issue shares of beneficial interest
("Shares") in separate series, with each such series representing interests in a
separate portfolio of securities and other assets; and
WHEREAS, the Trust intends to initially offer shares in one series, the
Xxxxxx Xxxxxxx Cash Management Fund (such series, together with all other series
subsequently established by the Trust and made subject to this Contract in
accordance with paragraph 12, being herein referred to as the "Fund(s)");
WITNESSETH:
That in consideration of the mutual covenants and agreements hereinafter
contained, the parties hereto agree as follows:
1. Employment of Custodian and Property to be Held by It
The Trust hereby employs the Custodian as the custodian
-- 1 --
of its assets of Xxxxxx Xxxxxxx Cash Management Fund, and any other Fund which
hereafter becomes subject to the terms hereof, pursuant to the provisions of the
Agreement and Declaration of Trust dated December 22, 1980. The Trust agrees to
deliver to the Custodian all securities and cash owned by any Funds subject to
this Contract, and all payments of income, payments of principal or capital
distributions received by it with respect to all securities owned by such Funds
from time to time, and the cash consideration received by it for such new Shares
of any Fund as may be issued or sold from time to time. The Custodian shall not
be responsible for any property of any Fund held or received by the Trust and
not delivered to the Custodian.
The Custodian may from time to time employ one or more sub-custodians, but
only in accordance with an applicable vote by the Trustees of the Trust, and
provided that the Custodian shall have no more or less responsibility or
liability to the Trust on account of any actions or omissions of any
sub-custodian so employed than any such sub-custodian has to the Custodian.
2. Duties of the Custodian with Respect to Property of the Trust Held By
the Custodian
2.1 Holding Securities. The Custodian shall hold and physically segregate
for the account of each Fund of the Trust all non-cash property,
including all securities owned by the Trust, other than securities
which are maintained pursuant to Section 2.12 in a clearing agency
which acts as a securities depository or in a book-entry
-- 2 --
system authorized by the U.S. Department of the Treasury, collectively
referred to herein as "Securities System".
2.2 Delivery of Securities. The Custodian shall release and deliver
securities owned by the Trust held by the Custodian or in a Securities
System account of the Custodian only upon receipt of proper
instructions, which may be continuing instructions when deemed
appropriate by the parties, and only in the following cases:
1) Upon sale of such securities for the account of a Fund and
receipt of payment therefor;
2) Upon the receipt of payment in connection with any repurchase
agreement related to such securities entered into by the
Trust;
3) In the case of a sale effected through a Securities System,
in accordance with the provisions of Section 2.12 hereof;
4) To the depository agent in connection with tender or other
similar offers for portfolio securities of a Fund;
5) To the Issuer thereof or its agent when such securities are
called, redeemed, retired or otherwise become payable;
provided that, in any such case, the cash or other
consideration is to be delivered to the Custodian;
6) To the Issuer thereof, or its agent, for
-- 3 --
transfer into the name of the Trust or into the name of any
nominee or nominees of the Custodian or into the name or
nominee name of any agent appointed pursuant to Section 2.11
or into the name or nominee name of any sub-custodian
appointed pursuant to Article 1; or for exchange for a
different number of bonds, certificates or other evidence
representing the same aggregate face amount or number of
units; provided that, in any such case, the new securities
are to be delivered to the Custodian;
7) To the broker selling the same for examination in accordance
with the "street delivery" custom;
8) For exchange or conversion pursuant to any plan of merger,
consolidation, recapitalization, reorganization or
readjustment of the securities of the issuer of such
securities, or pursuant to provisions for conversion
contained in such securities, or pursuant to any deposit
agreement; provided that, in any such case, the new
securities and cash, if any, are to be delivered to the
Custodian;
9) In the case of warrants, rights or similar
-- 4--
securities, the surrender thereof in the exercise of such
warrants, rights or similar securities or the surrender of
interim receipts or temporary securities for definitive
securities; provided that, in any such case, the new
securities and cash, if any, are to be delivered to the
Custodian;
10) For delivery in connection with any loans of securities made
by the Trust, but only against receipt of adequate collateral
as agreed upon from time to time by the Custodian and the
Trust, which may be in the form of cash or obligations issued
by the United States government, its agencies or
instrumentalities;
11) For delivery as security in connection with any borrowings by
the Trust requiring a pledge of assets of the appropriate
Fund of the Trust, but only against receipt of amounts
borrowed;
12) Upon receipt of instructions from the transfer agent for the
Trust ("Transfer Agent"), for delivery to such Transfer Agent
or to the holders of Shares of a Fund in connection with
distributions in kind, as may be described from time to time
in that Fund's
-- 5 --
currently effective prospectus, in satisfaction of requests
by holders of Shares for repurchase or redemption; and
13) For any other proper corporate purpose, but only upon receipt
of, in addition to proper instructions, a certified copy of a
resolution of the Trustees or of the Executive Committee
signed by an officer of the Trust and certified by the
Secretary or an Assistant Secretary, specifying the
securities to be delivered, setting forth the purpose for
which such delivery is to be made, declaring such purposes to
be proper corporate purposes, and naming the person or
persons to whom delivery of such securities shall be made.
2.3 Registration of Securities. Securities held by the Custodian (other
than bearer securities) shall be registered in the name of the Trust or
in the name of any nominee of the Trust or of any nominee of the
Custodian which nominee shall be assigned exclusively to the Trust,
unless the Trust has authorized in writing the appointment of a nominee
to be used in common with other registered investment companies having
the same investment adviser as the Trust, or in the name or nominee
name of any agent appointee pursuant to Section
-- 6 --
2.11 or in the name or nominee name of any sub-custodian appointed
pursuant to Article 1. All securities accepted by the Custodian on
behalf of the Trust under the terms of this Contract shall be in
"street" or other good delivery form.
2.4 Bank Accounts. The Custodian shall open and maintain a separate bank
account or accounts in the name of each Fund of the Trust, subject only
to draft or order by the Custodian acting pursuant to the terms of this
Contract, and shall hold in such account or accounts, subject to the
provisions hereof, all cash received by it from or for the account of
that Fund, other than cash maintained by the Trust in a bank account
established and used in accordance with Rule 17f-3 under the Investment
Company Act of 1940. Funds held by the Custodian for the Trust may be
deposited by it to its credit as Custodian in the Banking Department of
the Custodian or in such other banks or trust companies as it may in
its discretion deem necessary or desirable; provided, however, that
every such bank or trust company shall be qualified to act as a
custodian under the Investment Company Act of 1940 and that each such
bank or trust company and the funds to be deposited with each such bank
or trust company shall be approved by vote of a majority of the
Trustees of the Trust. Such funds shall be deposited by the Custodian
in its capacity as Custodian and shall be withdrawable by
-- 7 --
the Custodian only in that capacity.
2.5 Payments for Shares. The Custodian shall receive from the distributor
for the Trust's Shares or from the Transfer Agent of the Trust and
deposit into the account of the appropriate Fund such payments as are
received for Shares of that Fund issued or sold from time to time by
the Trust. The Custodian will provide timely notification to the Trust
and the Transfer Agent of any receipt by it of payments for Shares of
the Trust.
2.6 Investment and Availability of Federal Funds. Upon mutual agreement
between the Trust and the Custodian, the Custodian shall, upon the
receipt of proper instructions,
1) invest in such instruments as may be set forth in such
instructions, on the same day as received, all federal funds
received after a time agreed upon between the Custodian and
the Trust; and
2) make federal funds available to each Fund of the Trust, as of
specified times agreed upon from time to time by the Trust
and the Custodian, in an amount equal to the amount of checks
received in payment for Shares of that Fund which are
deposited into that Fund's account.
2.7 Collection of Income. The Custodian shall collect on a timely basis
all income and other payments with respect
-- 8 --
to registered securities held hereunder to which the Trust shall be
entitled either by law or pursuant to custom in the securities
business, and shall collect on a timely basis all income and other
payments with respect to bearer securities if, on the date of payment
by the issuer, such securities are held by the Custodian or agent
thereof for the account of a Fund of the Trust and shall credit such
income, as collected, to that Fund's custodian account. Without
limiting the generality of the foregoing, the Custodian shall detach
and present for payment all coupons and other income items requiring
presentation as and when they become due and shall collect interest
when due on securities held hereunder.
2.8 Payment of Fund Moneys. Upon receipt of proper instructions, which may
be continuing instructions when deemed appropriate by the parties, the
Custodian shall pay out moneys of the Trust in the following cases
only:
l) Upon the purchase of securities for the account of a Fund of
the Trust but only (a) against the delivery of such
securities to the Custodian (or any bank, banking firm or
trust company doing business in the United States or abroad
which is qualified under the Investment Company Act of 1940,
as amended, to act as a custodian and has been designated by
the Custodian as its agent for this
-- 9 --
purpose) registered in the name of the Trust or in the name
of a nominee of the Custodian referred to in Section 2.3
hereof or in proper form for transfer; (b) in the case of a
purchase effected through a Securities System, in accordance
with the conditions set forth in Section 2.12 hereof or (c)
in the case of repurchase agreements entered into between the
Trust and the Custodian, or another bank, (i) against
delivery of the securities either in certificate form or
through an entry crediting the Custodian's account at the
Federal Reserve Bank with such securities or (ii) against
delivery of the receipt evidencing purchase by the Trust of
securities owned by the Custodian along with written evidence
of the agreement by the Custodian to repurchase such
securities from the Trust;
2) In connection with the conversion, exchange or surrender of
securities owned by the Trust as set forth in Section 2.2
hereof;
3) For the redemption or repurchase of Shares issued by any Fund
of the Trust as set forth in Section 2.10 hereof;
4) For the payment of any expense or liability
-- 10 --
incurred by the Trust, including but not limited to the
following payments for the account of any Fund of the Trust:
interest, taxes, management, accounting, transfer agent and
legal fees, and operating expenses of the Trust whether or
not such expenses are to be in whole or part capitalized or
treated as deferred expenses;
5) For the payment of any dividends declared by any Fund
pursuant to the governing documents of the Trust;
6) For any other proper purpose, but only upon receipt of, in
addition to proper instructions, a certified copy of a
resolution of the Trustees or of the Executive Committee of
the Trust signed by an officer of the Trust and certified by
its Secretary or an Assistant Secretary, specifying the
amount of such payment, setting forth the purpose for which
such payment is to be made, declaring such purpose to be a
proper purpose, and naming the person or persons to whom such
payment is to be made.
2.9 Liability for Payment in Advance of Receipt of Securities Purchased. In
any and every case where payment for
- 11 -
purchase of securities for the account of a Fund of the Trust is made
by the Custodian in advance of receipt of the securities purchased in
the absence of specific written instructions from the Trust to so pay
in advance, the Custodian shall be absolutely liable to the Trust for
such securities to the same extent as if the securities had been
received by the Custodian, except that in the case of repurchase
agreements entered into by the Trust with a bank which is a member of
the Federal Reserve System, the Custodian may transfer funds to the
account of such bank prior to the receipt of written evidence that the
securities subject to such repurchase agreement have been transferred
by book-entry into a segregated non-proprietary account of the
Custodian maintained with the Federal Reserve Bank of Boston or of the
safe-keeping receipt, provided that such securities have in fact been
so transferred by book-entry.
2.10 Payments for Repurchases or Redemptions of Shares of the Trust. From
such funds properly allocable to that Fund as may be available for the
purpose, but subject to the limitations of the Trust's Agreement and
Declaration of Trust and any applicable votes of the Trustees of the
Trust pursuant thereto, the Custodian shall, upon receipt of
instructions from the Transfer Agent, make funds available for payment
to holders of Shares of any Fund who have delivered to the Transfer
Agent a request for
-- 12 --
redemption or repurchase of their Shares of that Fund. In connection
with the redemption or repurchase of Shares of the Trust, the Custodian
is authorized upon receipt of instructions from the Transfer Agent to
wire funds to or through a commercial bank designated by the redeeming
shareholders. In connection with the redemption or repurchase of Shares
of a Fund, the Custodian shall honor checks drawn on the Custodian by a
holder of Shares of that Fund, which checks have been furnished by the
Trust to the holder of Shares, when presented to the Custodian in
accordance with such procedures and controls as are mutually agreed
upon from time to time between the Trust and the Custodian.
2.11 Appointment of Agents. The Custodian may at any time or times in its
discretion appoint (and may at any time remove) any other bank or trust
company which is itself qualified under the Investment Company Act of
1940, as amended, to act as a custodian, as its agent to carry out such
of the provisions of this Article 2 as the Custodian may from time to
time direct; provided, however, that the appointment of any agent shall
not relieve the Custodian of its responsibilities or liabilities
hereunder.
2.12 Deposit of Trust Assets in Securities Systems. The Custodian may
deposit and/or maintain securities owned by the Trust in a clearing
agency registered with the Securities and Exchange Commission under
Section 17A of
-- 13 --
the Securities Exchange Act of 1934, which acts as a securities
depository, or in the book-entry system authorized by the U.S.
Department of the Treasury and certain federal agencies, collectively
referred to herein as "Securities System" in accordance with applicable
Federal Reserve Board and Securities and Exchange Commission rules and
regulations, if any, and subject to the following provisions:
1) The Custodian may keep securities of the Trust in a
Securities System provided that such securities are
represented in an account ("Accounts) of the Custodian in the
Securities System which shall not include any assets of the
Custodian other than assets held as a fiduciary, custodian or
otherwise for customers;
2) The records of the Custodian with respect to securities of
the Trust which are maintained in a Securities System shall
identify by book-entry those securities belonging to each
Fund of the Trust;
3) The Custodian shall pay for securities purchased for the
account of the Trust upon (i) receipt of advice from the
Securities System that such securities have been transferred
to the Account, and (ii) the
-- 14 --
making of an entry on the records of the Custodian to reflect
such payment and transfer for the account of the appropriate
Fund Of the Trust. The Custodian shall transfer securities
sold for the account of, the Trust upon (i) receipt of advice
from the Securities System that payment for such securities
has been transferred to the Account, and (ii) the making of
an entry on the records of the Custodian to reflect such
transfer and payment for the account of the appropriate Fund
of the Trust. Copies of all advices from the Securities
System of transfers of securities for the account of any Fund
of the Trust shall identify the Fund, be maintained for the
Trust by the Custodian and be provided to the Trust at its
request. The Custodian shall furnish to the Trust a
confirmation of each transfer to or from the account of each
Fund in the form of a written advice or notice and shall
furnish to the Trust copies of daily transaction sheets
reflecting each day's transactions in the Securities System
for the account of each Fund on the next business day;
4) The Custodian shall provide the Trust with
-- 15 --
any report obtained by the Custodian on the Securities
System's accounting system, internal accounting control and
procedures for safeguarding securities deposited in the
Securities System;
5) The Custodian shall have received the initial or annual
certificate, as the case may be, required by Article 9
hereof;
6) Anything to the contrary in this Contract notwithstanding,
the Custodian shall be liable to the Trust for any loss or
damage to the Trust resulting from use of the Securities
System by reason of any negligence, misfeasance or misconduct
of the Custodian or any of its agents or of any of its or
their employees or from failure of the Custodian or any such
agent to enforce effectively such rights as it may have
against the Securities System; at the election of the Trust,
it shall be entitled to be subrogated to the rights of the
Custodian with respect to any claim against the Securities
System or any other person which the Custodian may have as a
consequence of any such loss or damage if and to the extent;
that the Trust has not been made whole
-- 16 --
for any such loss or damage.
2.13 Ownership Certificates for Tax Purposes. The Custodian shall execute
ownership and other certificates and affidavits for all federal and
state tax purposes in connection with receipt of income or other
payments with respect to securities of the Trust held by it and in
connection with transfers of securities.
2.14 Proxies. The Custodian shall, with respect to the securities held
hereunder, cause to be promptly executed by the registered holder of
such securities, if the securities are registered otherwise than in the
name of the Trust or a nominee of the Trust, all proxies, without
indication of the manner in which such proxies are to be voted, and
shall promptly deliver to the Trust such proxies, all proxy soliciting
materials and all notices relating to such securities.
2.15 Communications Relating to Trust Portfolio Securities. The Custodian
shall transmit promptly to the Trust all written information
(including, without limitation, pendency of calls and maturities of
securities and expirations of rights in connection therewith) received
by the Custodian from issuers of the securities being held for the
Trust. With respect to tender or exchange offers, the Custodian shall
transmit promptly to the Trust all written information received by the
Custodian from issuers of the securities whose tender or exchange
-- 17 --
is sought and from the party (or his agents) making the tender or
exchange offer. If the Trust desires to take action with respect to any
tender offer, exchange offer or any other similar transaction, the
Trust shall notify the Custodian at least three business days prior to
the date on which the Custodian is to take such action.
2.16 Proper Instructions. Proper Instructions as used throughout this
Article 2 means a writing signed or initialled by one or more person or
persons as the Trustees shall have from time to time authorized. Each
such writing shall set forth the specific transaction or type of
transaction involved, including a specific statement of the purpose for
which such action is requested. Oral instructions will be considered
Proper Instructions if the Custodian reasonably believes them to have
been given by a person authorized to give such instructions with
respect to the transaction involved. The Trust shall cause all oral
instructions to be confirmed in writing. Upon receipt of a certificate
of the Secretary or an Assistant Secretary as to the authorization by
the Trustees of the Trust accompanied by a detailed description of
procedures approved by the Trustees, Proper Instructions may include
communications effected directly between electro-mechanical or
electronic devices provided that the Trustees and the Custodian are
satisfied that such procedures afford
-- 18 --
adequate safeguards for the Trust's assets.
2.17 Actions Permitted without Express Authority. The Custodian may in its
discretion, without express authority from the Trust:
1) make payments to itself or others for minor expenses of
handling securities or other similar items relating to its
duties under this contract, provided that all such payments
shall be accounted for to the Trust;
2) surrender securities in temporary form for securities in
definitive form;
3) endorse for collection, in the name of the Trust, checks,
drafts and other negotiable instruments; and
4) in general, attend to all non-discretionary details in
connection with the sale, exchange, substitution, purchase,
transfer and other dealings with the securities and property
of the Trust except as otherwise directed by the Trustees of
the Trust.
2.18 Evidence of Authority. The Custodian shall be protected in acting upon
any instructions, notice, request, consent, certificate or other
instrument or paper believed by it to be genuine and to have been
properly executed by or on behalf of the Trust. The Custodian may
receive and accept a certified copy of a vote of the
-- 19 --
Trustees of the Trust as conclusive evidence (a) of the authority of
any person to act in accordance with such vote or (b) of any
determination or of any action by the Trustees pursuant to the
Agreement and Declaration of Trust as described in such vote, and such
vote may be considered as in full force and effect until receipt by the
Custodian of written notice to the contrary.
3. Duties of Custodian with Respect to the Books of Account and
Calculation of Net Asset Value and Net Income.
The Custodian shall cooperate with and supply necessary information to
the entity or entities appointed by the Trustees of the Trust to keep the
books of account of the Trust and/or compute the net asset value per share
of the outstanding shares of each Fund of the Trust or, if directed in
writing to do so by the Trust, shall itself keep such books of account
and/or compute such net asset value per share. If so directed, the
Custodian shall also calculate daily the net income of each Fund as
described in that Fund's currently effective prospectus and shall advise
the Trust and the Transfer Agent daily of the total amounts of such net
income and, if instructed in writing by an officer of the Trust to do so,
shall advise the Transfer Agent periodically of the division of such net
income among its various components. The calculations of the net asset
value per share and the daily income of each Fund shall be made at the time
or times described from time to time in the Fund's currently effective
prospectus.
-- 20 --
4. Records
The Custodian shall create and maintain all records relating to its
activities and obligations under this Contract in such manner as will meet
the obligations or the Trust under the Investment Company Act of 1940, with
particular attention to Section 31 thereof and Rules 31a-1 and 31a-2
thereunder, applicable federal and state tax laws and any other law or
administrative rules or procedures which may be applicable to the Trust.
All such records shall be the property of the Trust and shall at all times
during the regular business hours of the Custodian be open for inspection
by duly authorized officers, employees or agents of the Trust and employees
and agents of the Securities and Exchange Commission. The Custodian shall,
at the Trust's request, supply the Trust with a tabulation of securities
owned by the Trust and allocable to each Fund and held by the Custodian and
shall, when requested to do so by the Trust and for such compensation as
shall be agreed upon between the Trust and the Custodian, include
certificate numbers in such tabulations.
5. Opinion of Trust's Independent Accountant
The Custodian shall take all reasonable action, as the Trust may from
time to time request, to obtain from year to year favorable opinions from
the Trust's independent accountants with respect to its activities
hereunder in connection with the preparation of the Trust's Form N-1, and
Form N-1R or other annual reports to the Securities and Exchange Commission
and with respect to any other requirements of such Commission.
-- 21 --
6. Reports to Trust by Independent Public Accountants
The Custodian shall provide the Trust, at such times as the Trust may
reasonably require, with reports by independent public accountants on the
accounting system, internal accounting control and procedures for
safeguarding securities, including securities deposited and/or maintained
in a Securities System, relating to the services provided by the Custodian
under this Contract; such reports, which shall be of sufficient scope and
in sufficient detail, as may reasonably be required by the Trust, to
provide reasonable assurance that any material inadequacies would be
disclosed by such examination, and, if there are no such inadequacies,
shall so state.
7 Compensation of Custodian
The Custodian shall be entitled to reasonable compensation for its
services and expenses as Custodian, as agreed upon from time to time
between the Trust and the Custodian.
8. Responsibility of Custodian
So long as and to the extent that it exercises reasonable care, the
Custodian shall not be responsible for the title, validity or genuineness
of any property or evidence of title thereto received by it or delivered by
it pursuant to this Contract and shall be held harmless in acting upon any
notice, request, consent, certificate or other instrument reasonably
believed by it to be genuine and to be signed by the proper party or
parties. The Custodian shall be held to the exercise of
-- 22 --
reasonable care in carrying out the provisions of this Contract, but shall
be kept indemnified by and shall be without liability to the Trust for any
action taken or omitted by it in good faith without negligence. It shall be
entitled to rely on and may act upon advice of counsel (who may be counsel
for the Trust) on all matters, and shall be without liability for any
action reasonably taken or omitted pursuant to such advice. Notwithstanding
the foregoing, the responsibility of the Custodian with respect to
redemptions effected by check shall be in accordance with a separate
Agreement entered into between the Custodian and the Trust.
If the Trust requires the Custodian to take any action with respect to
securities, which action involves the payment of money or which action may,
in the opinion of the Custodian, result in the Custodian or its nominee
assigned to the Trust being liable for the payment of money or incurring
liability of some other form, the Trust, as a prerequisite to requiring the
Custodian to take such action, shall provide indemnity to the Custodian in
an amount and form satisfactory to it.
9. Effective Period, Termination and Amendment
This Contract shall become effective with respect to Xxxxxx Xxxxxxx
Cash Management Fund as of its execution and with respect to any additional
Fund as provided in Section 12, shall continue in full force and effect
until terminated as hereinafter provided, may be amended at any time by
mutual agreement of the parties hereto and may be terminated by either
party with respect
-- 23 --
to any Fund by an instrument in writing delivered or mailed, postage
prepaid to the other party, such termination to take effect not sooner than
thirty (30) days after the date of such delivery or mailing; provided,
however that the Custodian shall not act under Section 2.12 hereof in the
absence of receipt of an initial certificate of the Secretary or an
Assistant Secretary that the Trustees of the Trust have approved the
initial use of a particular Securities System and the receipt of an annual
certificate of the Secretary or an Assistant Secretary that the Trustees
have reviewed the use by the Trust of such Securities System, as required
in each case by Rule 17f-4 under the Investment Company Act of 1940, as
amended; provided further, however, that the Trust shall not amend or
terminate this Contract in contravention of any applicable federal or state
regulations, or any provision of the Agreement and Declaration of Trust,
and further provided, that the Trust may at any time by action of its
Trustees (i) substitute another bank or trust company as Custodian for any
Fund by giving notice as described above to the Custodian, or (ii)
immediately terminate this Contract in the event of the appointment of a
conservator or receiver for the Custodian by the Comptroller of the
Currency or upon the happening of a like event at the direction of an
appropriate regulatory agency or court of competent jurisdiction.
Upon termination of the Contract, the Trust shall pay to the Custodian
such compensation as may be due as of the date of such termination and
shall likewise reimburse the Custodian for
- 24 -
its costs, expenses and disbursements.
10. Successor Custodian
If a successor custodian shall be appointed by the Trustees of the
Trust, the Custodian shall, upon termination, deliver to such successor
custodian at the office of the Custodian, duly endorsed and in the form for
transfer, all securities then held by it hereunder.
If no such successor custodian shall be appointed, the Custodian shall,
in like manner, upon receipt of a certified copy of a vote of the Trustees
of the Trust, deliver at the office of the Custodian such securities, funds
and other properties in accordance with such vote.
In the event that no written order designating a successor custodian or
certified copy of a vote of the Trustees shall have been delivered to the
Custodian on or before the date when such termination shall become
effective, then the Custodian shall have the right to deliver to a bank or
trust company, which is a "bank" as defined in the Investment Company Act
of 1940, doing business in Boston, Massachusetts, of its own selection,
having an aggregate capital, surplus, and undivided profits, as shown by
its last published report, of not less than $25,000,000, all securities,
funds and other properties held by the Custodian and all instruments held
by the Custodian relative thereto and all other property held by it under
this Contract. Thereafter, such bank or trust company shall be the
successor of the Custodian under this Contract.
-- 25 --
In the event that securities, funds and other properties remain in the
possession of the Custodian after the date of termination hereof owing to
failure of the Trust to procure the certified copy of vote referred to or
of the Trustees to appoint a successor custodian, the Custodian shall be
entitled to fair compensation for its services during such period as the
Custodian retains possession of such securities, funds and other properties
and the provisions of this Contract relating to the duties and obligations
of the Custodian shall remain in full force and effect.
11. Interpretive and Additional Provisions
In connection with the operation of this Contract, the Custodian and
the Trust may from time to time agree on such provisions interpretive of or
in addition to the provisions of this Contract as may in their joint
opinion be consistent with the general tenor of this Contract. Any such
interpretive or additional provisions shall be in a writing signed by both
parties and shall be annexed hereto, provided that no such interpretive or
additional provisions shall contravene any applicable federal or state
regulations or any provision of the Agreement and Declaration of Trust of
the Trust. No interpretive or additional provisions made as provided in the
preceding sentence shall be deemed to be an amendment of this Contract.
12. Additional Funds
In the event that the Trust establishes one or more series of Shares in
addition to Xxxxxx Xxxxxxx Cash Management
-- 26 --
Fund with respect to which it desires to have Custodian render services as
custodian under the terms hereof, it shall so notify Custodian in writing,
and if Custodian agrees in writing to provide such services, such series of
shares shall become a Fund hereunder.
13. Massachusetts Law to Apply
This Contact shall be construed and the provisions thereof interpreted
under and in accordance with with laws of the Commonwealth of
Massachusetts.
14. Prior Contracts
This Contract supersedes and terminates, as of the date hereof, all
prior contracts between the Trust and the Custodian relating to the custody
of the Trust s assets.
15. Limitation of Liability
The Agreement and Declaration of Trust establishing the Trust, dated
December 22, 1981, a copy of which, together with all amendments thereto
(the "Declaration"), is on file in the Office of the Secretary of the
Commonwealth of Massachusetts, provides that the name Xxxxxx Xxxxxxx Mutual
Fund" refers to the Trustees under the Declaration collectively as
Trustees, but not as individuals or personally; and no Trustee,
shareholder, officer, employee or agent of the Trust shall be held to any
personal liability, nor shall resort be had to their private property for
the satisfaction of any obligation or claim otherwise in connection with
the affairs of said Trust out the Trust estate only shall be liable.
IN WITNESS WHEREOF, each of the parties has caused this
-- 27 --
instrument to be executed in its name and behalf by its duly authorized
representative and its seal to be hereunder affixed as of the 19th day of
March, 1981.
SEAL XXXXXX XXXXXXX MUTUAL FUND
ATTEST
/s/ Xxxxx X Xxxxxxxxxx By /s/ Xxxx X. Xxxxxx, Xx.
---------------------------- ----------------------------
Assistant Secretary President
SEAL STATE STREET BANK AND TRUST COMPANY
ATTEST
/s/ Xxxxxxx Smacon By /s/ Xxxxx X. Sentor
----------------------------- ----------------------------
Assistant Secretary Vice President
-- 00 --
Xxxxx xxxxxx
Xxxxx Xxxxxx Xxxx and Trust Company
Custodian Fee Schedule for
The Xxxxxx Xxxxxxx Cash Management Fund
I. Administration
A. Custody, Portfolio and Fund Accounting Service
Maintain custody of fund assets. Settle portfolio purchases and sales.
Report buy and sell fails. Determine and collect portfolio income. Make
cash disbursements and report cash transactions. Maintain investment
ledgers, provide selected portfolio transaction, position and income
reports. Maintain general ledger and capital stock accounts. Prepare
daily trial balance. Calculate net asset value daily. Provide selected
general ledger reports. Securities yield or market value quotations will
be provided to State Street by the fund.
The administration fee shown below is an annual charge, billed and payable
monthly, based on average net assets and calculated in the same manner as the
fund management fee.
Annual Fee
----------
A. Custody, Portfolio
Fund Net Assets and Fund Accounting
--------------- -------------------
First $20 million 1/15 of 1%
Next $80 million 1/30 of 1%
Excess 1/100 of 1 %
II. Portfolio Trades - For each line item processed
State Street Bank Repos $ 7.00
All other trades $12.00
III. Interest Accrual and Holding Charge
For each issue held - monthly charge $ 5.00
IV. Special Services
Fees for activities of a non-recurring nature such as fund consolidations
or reorganizations, extraordinary security shipments and the preparation of
special reports will be subject to negotiation.
V. Out-of-Pocket Expenses
A billing for the recovery of applicable out-of-pocket expenses will be
made as of the end of each month. Out-of-pocket expenses include, but are
not limited to the following:
STATE STREET
V. Out-of-Pocket Expenses (continued)
Telephone
Wire charges ($2.50 per wire in or out)
Postage and insurance
Courier Service
Legal fees
Supplies related to fund records
Rush transfer - $8 each
Duplicating
DTC Eligibility Books
Transfer fees
Pricing services
Sub-custodian charges
The Xxxxxx Xxxxxxx
Cash Management Fund State Street Bank and Trust Company
By: /s/ Xxxx X. Xxxxxx, Xx. By: /s/ Illegible
-------------------------- -----------------------------------
Date: 3-19-81 Date: 3/19/81
-------------------------- -----------------------------------
State Street
State Street Bank and Trust Company
Fee Schedule for Services as
Plan, Transfer and Dividend Disbursing Agent
The Xxxxxx Xxxxxxx Cash Management Fund
Annual Maintenance
I. Fund entering new account information, same day redemptions and purchases
when this system is available.
Basic annual per account fee: $ 12.00
o This includes the processing of 8 share transactions/
account on an average or the entire account base over
the year
Any share transactions over 8/year $ .80 each
The annual maintenance charge includes the processing of all transactions and
correspondence. The fee is billable on a monthly basis at the rate of 1/12 of
the annual fee. A charge is made for an account in the month that an account
opens or closes.
Out-of-Pocket Expenses
Out-of-pocket expenses include but are not limited to: postage, forms,
telephone, microfilm, microfiche and expenses incurred at specific direction of
the fund. Postage for mass mailings is due seven days in advance of the mailing
date.
The Xxxxxx Xxxxxxx
Cash Management Fund State Street Bank and Trust Company
By: /s/ Xxxx X. Xxxxxx, Xx. By: /s/ Illegible
-------------------------- -----------------------------------
Date: 3-19-81 Date: 3/19/81
-------------------------- -----------------------------------
FREEDOM MUTUAL FUND
Xxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
State Street Bank and Trust Company
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
RE: Custody Agreement
----------------
Gentlemen:
Pursuant to Section 12 of the Custody Agreement dated as of March 19,
1981, between Freedom Mutual Fund (the "Trust") and State Street Bank and Trust
Company (the "Custodian"), please be advised that the Trust has established a
new series of its shares, namely, Freedom Short-Intermediate Treasury Fund (the
"Fund"), and please be further advised that the Trust desires to retain the
Custodian to render custodial services under the Custody Agreement to the Fund
in accordance with the fee schedule attached hereto as Exhibit A.
Please state below whether you are willing to render such services in
accordance with the fee schedule attached hereto as Exhibit A.
FREEDOM MUTUAL FUND
ATTEST: /s/ Xxxx Xxxxxxx By /s/ Xxxx X. Xxxxxx, Xx.
--------------------------- --------------------------------
Xxxx X. Xxxxxxx, Secretary Xxxx X. Xxxxxx, Xx., President
Dated: February 13, 1992
We are willing to render custodial services to the Freedom
Short-Intermediate Treasury Fund in accordance with the fee schedule attached
hereto as Exhibit A.
STATE STREET BANK AND TRUST COMPANY
ATTEST: /s/ M X. Xxxxxx By /s/ X. X. Xxxxxx
------------------ -------------------------
Dated:
YP-2629/T
