EXHIBIT 8(a)
CUSTODIAN AGREEMENT
This Agreement, dated as of February 17, 1993, is entered into by and
between CFB MarketWatch Funds, a Massachusetts business trust having its
principal place of business in Columbus, Ohio (hereinafter called the "Trust"),
and Central Fidelity Bank, a state-chartered banking corporation having its
principal office in Richmond, Virginia (hereinafter called the "Custodian").
In consideration of the mutual covenants herein contained, the Trust and
the Custodian agree as follows:
1. Appointment and Acceptance.
--------------------------
The Trust hereby appoints the Custodian as custodian of all of the
securities and cash of each investment portfolio of the Trust identified on
Schedule A hereto, as such Schedule may be amended from time to time
(individually referred to herein as a "Fund" and collectively as the
"Funds"), and the Custodian agrees to act as such upon the terms and
conditions herein set forth. The Trust agrees to deliver to the Custodian
all securities and cash owned by a Fund, and all payments of income,
payments of principal, or capital distributions received by a Fund with
respect to all securities owned by such Fund from time to time, and the
cash consideration received by a Fund for such new or treasury shares of
beneficial interest of such Fund ("Shares") as may be issued or sold from
time to time. The Custodian shall not be responsible for any property of
the Trust held or received by a Fund and not delivered to the Custodian.
2. Definitions.
-----------
The word "securities" as used herein shall have the meaning stated in
Section 2(a)(36) of the Investment Company Act of 1940, as amended (the
"1940 Act").
The words "proper instructions" as used herein mean a writing signed or
initialled by such two or more persons and in such manner as the Board of
Trustees of the Trust shall have from time to time authorized ("Authorized
Persons") and whose authority, names and signatures have been most recently
certified to the Custodian by the Secretary or an Assistant Secretary of
the Trust. Each such writing shall set forth: (i) the date and time of
the transactions involved, (ii) the title and amount of the securities or
other investments (and an identification by certificate number or
otherwise), (iii) the purpose or manner for which action is requested, and
(iv) the identity of any third person involved in the transaction.
Payments of monies or deliveries of securities with respect to a Fund for
purposes not specifically set forth in this Agreement shall be made by the
Custodian only upon receipt of, in addition to proper instructions, a
Resolution specifying the amount of such payment or describing the
securities to be delivered, the purpose of which the payment or delivery is
being made and declaring such purpose to be a proper purpose of such Fund
and naming the person or persons to whom such payment
or delivery is to be made. Oral instructions will be considered proper
instructions if the Custodian reasonably believes them to have been given
by one or more Authorized Persons. The Trust shall cause all oral
instructions to be confirmed promptly in writing (except where such oral
instructions are given by Authorized Persons employed by the Trust's
investment adviser in which case the investment adviser shall forward such
written instructions). Upon receipt of a Resolution 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 electromechanical or
electric devices provided that the Trustees and the Custodian are satisfied
--------
that such procedures afford adequate safeguards for a Fund's assets.
The word "Resolution" shall mean a copy of a resolution of the Board of
Trustees (or the executive committee) of the Trust duly certified by the
Secretary or an Assistant Secretary of the Trust.
The word "Depository" as used herein means each of Depository Trust
Company, Federal Reserve Book Entry System, or any other system for the
central handling of securities as more fully described in Section 11
herein.
3. Names, Titles and Signatures.
----------------------------
The Trust will furnish the Custodian with a Resolution indicating the
name(s) and signature(s) of the Authorized Persons from time to time
authorized to act hereunder. In the event that any person named in the
most recent Resolution shall cease to be an Authorized Person, the Trust
will furnish the Custodian with a certificate of the Secretary or an
Assistant Secretary advising it to that effect. In the absence of such
certificate, the Custodian shall be entitled to rely, as aforesaid, upon
the signatures of the Authorized Persons named in the most recent
Resolution.
4. Accounts.
--------
The Custodian shall maintain an account (or accounts) on behalf of each
Fund, which may be an account (or accounts) used commonly on behalf of only
those customers for whom the Custodian acts in a fiduciary, advisory,
custodian, or other similar capacity. Such account (or accounts) with
respect to a Fund shall be maintained pursuant to requirements under
Section 17(f) of the 1940 Act and Rule 17f-2 thereunder so long as required
and shall be subject only to draft or order by
2
the Custodian acting pursuant to the terms of this Agreement, and the
Custodian shall hold in such account (or accounts), subject to the
provisions hereof, all cash received by it from or for the account of such
Fund other than cash maintained by such Fund in a bank account established
and used in accordance with Rule 17f-3 under the 1940 Act. Funds held by
the Custodian on behalf of each Fund in such account (or accounts) shall be
at all times identifiable as such in the Custodian's records.
5. Collection of Income.
--------------------
The Custodian shall collect all income and other payments with respect to
securities held hereunder when such securities are in the name of, or in
the process of transfer into the name of, the Custodian or a nominee of the
Custodian on the record date for such income or other payments in the case
of registered securities, or are held by the Custodian on the date of
payment by the issuer thereof in the case of bearer securities. The
Custodian shall credit all such income collected by it hereunder with
respect to a Fund to the account of such Fund. 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 dividends and interest when due on
securities registered in the name of the Custodian or a nominee of the
Custodian.
With respect to securities of foreign issue, while the Custodian will use
its best efforts to collect any monies which may to its knowledge become
collectible arising from such securities, including dividends, interest and
other income, and to notify the Trust of any call for redemption, offer of
exchange, right of subscription, reorganization or other proceedings
affecting such securities, it is understood that the Custodian shall be
under no responsibility for any failure or delay (other than a failure or
delay arising from the Custodian's own negligence or bad faith) in
effecting such collections or giving such notices, whether or not relevant
information is published in any major U.S. publication available to it.
The Custodian shall not be under any obligation or duty to take action to
effect collection of any amount, if the securities (domestic or foreign)
upon which such amount is payable are in default and payment is refused
after due demand or presentation. The Custodian will, however, promptly
notify the Trust in writing of such default and refusal to pay.
6. Payment of Money of a Fund.
--------------------------
Upon receipt of proper instructions, which may be continuing instructions
when deemed appropriate by the parties, the Custodian shall pay out monies
of a Fund in the following cases only:
a. Upon the purchase of securities for the account of such Fund but only
(1) against the delivery of such securities to the Custodian (or any
bank,
3
banking firm or trust company doing business in the United States or
abroad which is qualified under the 1940 Act to act as a custodian and
has been designated by the Custodian as its agent for this purpose)
registered in the name of such Fund or in the name of a nominee of
such Fund or in the name of a nominee of the Custodian referred to in
Section 8 hereof or in proper form for transfer; (2) in the case of a
purchase effected through a Depository, in accordance with the
conditions set forth in Section 11 hereof; or (3) in the case of
repurchase agreements entered into between such Fund and a bank or a
registered broker-dealer, (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 such
Fund of securities owned by the bank or the registered broker-dealer
along with written evidence of the agreement by the bank or the
registered broker-dealer to repurchase such securities from such Fund;
b. In connection with the conversion, exchange or surrender of securities
owned by such Fund as set forth in Section 7(b) hereof;
c. For the redemption or repurchase of Shares of such Fund as set forth
in Section 10 hereof;
d. For the payment of any expense or liability incurred by such Fund,
including but not limited to the following payments for the account of
such Fund: interest, taxes, management, accounting, transfer agent
and legal fees, and operating expenses of such Fund whether or not
such expenses are to be in whole or in part capitalized or treated as
deferred expenses;
e. For the payment of any dividends declared with respect to such Fund
pursuant to the governing documents of the Trust;
f. For transfer to a demand or time deposit account of such Fund in any
bank, whether domestic or foreign, or in any savings and loan
association; and
g. For any other proper purposes of such Fund, but only upon receipt of,
--------
in addition to proper instructions, a Resolution 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 of such
Fund, and naming the person or persons to whom such payment is to be
made.
4
7. Duties of Custodian with Respect to Securities of a Fund held by Custodian.
--------------------------------------------------------------------------
The Custodian shall maintain records of all receipts, deliveries, and
location of all securities and other investments, together with a current
inventory thereof.
a. Holding Securities.
------------------
The Custodian shall hold in a separate account for each Fund, and
physically segregated at all times, except for securities held in a
Depository, from those of any other persons, firms or corporations,
pursuant to the provisions hereof, all securities received by it from
or for the account of such Fund. The Custodian shall have no power or
authority to assign, hypothecate, pledge or otherwise dispose of any
securities and investments, except pursuant to proper instructions of
the Trust or as otherwise provided herein and only for the account of
a Fund as hereinafter provided.
b. Delivery of Securities.
----------------------
The Custodian shall release and deliver securities owned by a Fund
held by the Custodian or in a Depository 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 the sale of such securities for the account of such 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 such Fund;
(3) In the case of a sale effected through a Depository, in
accordance with the provisions of Section 11 hereof;
(4) To a Depository in connection with tender or other similar offers
for portfolio securities of such 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 transfer into the name
of such Fund or into the name of any nominee or nominees of the
Custodian or into the name or nominee name of any agent appointed
pursuant to Section 9; or for exchange for a different number of
bonds, certificates or other evidence representing the same
aggregate face
5
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 or 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 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
such Fund, but only against receipt of adequate collateral as
--------
agreed upon from time to time by the Custodian and such Fund,
which may be in the form of cash, obligations issued by the
United States Government, its agencies or instrumentalities, or
other securities as permitted in accordance with the terms of the
current Prospectus of such Fund;
(11) For delivery as security in connection with any borrowings by
such Fund requiring a pledge of assets by such Fund, but only
--------
against receipt of amounts borrowed by the Custodian except where
additional collateral is being pledged on an outstanding loan; or
(12) For any other proper purposes of such Fund, but only upon receipt
of, in addition to proper instructions, a Resolution specifying
the securities to be delivered, setting forth the purposes to be
proper purposes of such Fund, and naming the person or persons to
whom delivery of such securities shall be made.
8. Registration of Securities.
--------------------------
Securities held by the Custodian (other than bearer securities) on behalf
of a Fund shall be registered in the name of such Fund or in the name of
any nominee of such Fund or of any nominee of the Custodian which nominee
shall be assigned exclusively to such Fund, 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 such
Fund or in common
6
exclusively with other accounts for which the Custodian acts in a
fiduciary, advisory, custodial, or other similar capacity, or in the name
or nominee name of any agent appointed pursuant to Section 9 or in the name
of any nominee or nominees used by a Depository. All securities accepted
by the Custodian on behalf of a Fund under the terms of this Contract shall
be in "street" or other good delivery form. The Custodian shall use its
best efforts to the end that the specific securities held by the Custodian
on behalf of each Fund shall be at all times identifiable as such in the
Custodian's records.
9. Appointment of Agents.
---------------------
The Custodian may at any time or times in its discretion appoint (and may
at any time remove) any other bank (as defined in the 0000 Xxx) as its
agent or subcustodian to carry out such of the provisions of this Agreement
as the Custodian may from time to time direct; provided, however, that the
--------
appointment of any agent shall not relieve the Custodian of any of its
responsibilities or liabilities hereunder; and further provided that such
--------
appointments relating to securities purchased or sold outside the United
States shall be in accordance with Section 12 hereto.
10. Payments for Redemption or Repurchase of Shares of a Fund.
---------------------------------------------------------
From such funds as may be available for the purpose, but subject to the
limitations of the Agreement and Declaration of Trust and Code of
Regulations of the Trust and any applicable votes of the Trustees of the
Trust pursuant thereto, the Custodian shall, upon receipt of instructions
from the Transfer Agent for a Fund, make funds available for payment to
holders of Shares ("Shareholders") of such Fund who have delivered to the
Transfer Agent a request for redemption or repurchase of their Shares. In
connection with the redemption or repurchase of Shares of a Fund, the
Custodian is authorized upon receipt of instructions from the Transfer
Agent to disburse funds in accordance with those instructions.
11. Deposit of a Fund's Assets in a Depository.
------------------------------------------
The Custodian may deposit and/or maintain securities owned by a Fund in (1)
a clearing agency registered with the Securities and Exchange Commission
under Section 17A of the Securities Exchange Act of 1934 which acts as a
securities depository, provided such deposit and/or maintenance complies
--------
with all applicable provisions of Rule 17f-4 under the 1940 Act, as such
Rule may from time to time be amended; (2) the book-entry system as
provided in Subpart O of Treasury Circular Xx. 000, 00 X.X.X. 000, Xxxxxxx
X of 31 C.F.R. Part 350, and the book-entry regulations of federal agencies
substantially in the form of Subpart O; or (3) any other securities
depository organized to facilitate the clearance and settlement of certain
exempt-securities transactions. The Trust shall furnish the Custodian with
a Resolution evidencing the approval by the Trust of the use of a
Depository
7
by the Custodian. The Board of Trustees of the Trust shall review, at
least annually, the use of a Depository with respect to this Agreement.
Without limiting the generality of the foregoing regarding the use of such
Depository, it is agreed that the following provisions shall apply thereto:
a. The Custodian shall deposit and/or maintain the securities in an
account of the Custodian in the Depository that shall not include any
assets of the Custodian other than assets held by it for customers;
b. The Custodian shall send the Trust a confirmation of any transfers to
or from the account of a Fund. Where securities are transferred to
that account, the Custodian shall also, by book entry or otherwise,
identify as belonging to such Fund a quantity of securities in a
fungible bulk of securities (1) registered in the name of the
Custodian (or its nominee) or (2) shown on the Custodian's account on
the books of the Depository;
c. The Custodian shall pay for securities purchased for the account of a
Fund upon (1) receipt of advice from the Depository that such
securities have been transferred to the account, and (2) the making of
an entry on the records of the Custodian to reflect such payment and
transfer for the account of such Fund. The Custodian shall transfer
securities sold for the account of a Fund upon (1) receipt of advice
from the Depository that payment for such securities has been
transferred to the account, and (2) the making of an entry on the
records of the Custodian to reflect such transfer and payment for the
account of the Fund. Copies of all advices from the Depository of
transfers of securities for the account of a Fund shall identify such
Fund as well as the Trust, be maintained for such Fund by the
Custodian and be provided to the Trust at its request. The Custodian
shall furnish the Trust confirmation of each transfer to or from the
account of a 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 Depository for the account of a Fund on
the next business day;
d. The Custodian shall promptly send to the Trust reports the Custodian
receives from the Depository on the Depository's system of internal
accounting control. The Custodian shall send to the Trust such
reports on its own system of internal accounting control as the Trust
may reasonably request from time to time;
e. The Custodian shall comply with all other conditions which may be
imposed from time to time by statute or by appropriate rules and
regulations on the use of a Depository with respect to the securities
of a Fund; and
f. Anything to the contrary in this Agreement notwithstanding, the
Custodian shall be liable to a Fund for any loss or damage to such
Fund resulting from
8
the use of a Depository by reason of the Custodian's willful
misfeasance, bad faith, or negligence, or from any failure of the
Custodian or any such agent to pursue diligently such rights as it may
have against such Depository; at the election of a Fund, it shall be
entitled to be subrogated to the rights of the Custodian with respect
to any claim against the Depository or any person which the Custodian
may have as a consequence of any such loss or damage if and to the
extent that such Fund has not been made whole for any such loss or
damage. Furthermore, the Custodian shall be fully responsible for any
loss suffered by a Fund as a result of any act or failure to act on
the part of a Depository, to the same extent that the Custodian would
have been liable had the Custodian taken or failed to take such action
with respect to securities of such Fund entrusted to its custody.
Without, in any way, limiting the generality of the foregoing, the
Custodian shall be responsible for the safe custody of the securities
held in such Depository, to the same extent as if the Custodian held
physical possession of such securities.
12. Use of Subcustodians.
--------------------
The Custodian, in connection with the purchase and sale by a Fund of
securities outside the United States, in its discretion and in accordance
with the applicable provisions of Rule 17f-5 under the 1940 Act, as such
Rule may from time to time be amended, may appoint in writing (and may at
any time remove) any other bank or trust company (which may include a
foreign branch or agency of a bank or trust company) as its agent hereunder
(individually, a "Subcustodian") to carry out, in accordance with the terms
of this Agreement, such of the provisions of the Agreement as the Custodian
may, from time to time, direct; provided, however, that any such foreign
--------
Subcustodian would meet the qualifications pursuant to Rule 17f-5, and any
U.S. Subcustodian would meet the qualifications for a successor custodian
set forth in Section 18 herein (and which will have been selected with
reasonable care, having in mind the duties to be assigned to it); and
further provided that the Trust's Board of Trustees has approved such
--------
foreign subcustody arrangements in accordance with the requirements of Rule
17f-5. Such Subcustodian shall be the agent of the Custodian and not the
agent of such Fund, and the Custodian shall be fully responsible for the
acts of such Subcustodian and shall not be relieved of any of its
responsibilities or liabilities hereunder by the appointment of such
Subcustodian.
13. Use of Euro-clear Securities Clearance Facilities.
-------------------------------------------------
A Fund may, from time to time, with respect to securities purchased or sold
by such Fund in Europe, if any, wish to use the Euro-clear Securities
Clearance Facilities. In such cases, a Subcustodian of the Custodian
employed pursuant to Section 12 may, notwithstanding the other provisions
of this Agreement:
9
a. make payments of cash upon the purchase of securities for the account
of such Fund prior to delivery of such securities to the Subcustodian;
and
b. deliver securities upon sales of such securities for the account of
such Fund prior to receipt by the Subcustodian of payment therefor;
provided that any such transactions shall be implemented in accordance with
--------
procedures agreed to in advance in writing by the Trust, the Custodian and
such Subcustodian.
14. Voting and Other Action.
-----------------------
The Custodian shall promptly deliver or mail to the Trust all forms of
proxies and all notices of meetings and other notices or announcements
affecting or relating to the securities of a Fund, and, upon receipt of
proper instructions, shall execute and deliver or cause its nominee to
execute and deliver such proxies or other authorizations as may be
required. Neither the Custodian nor its nominee shall vote upon any of the
securities or execute any proxy to vote thereon or give any consent to take
any other action with respect thereto (except as otherwise herein provided)
unless ordered to do so by proper instructions.
15. Transfer Tax and Other Disbursements.
------------------------------------
A Fund shall pay or reimburse the Custodian from time to time for any
transfer taxes payable upon transfers of securities made hereunder, and for
all other necessary and proper disbursements and expenses made or incurred
by the Custodian in the performance of this Agreement; provided that, with
--------
the exception of such transfer taxes, a Fund shall not pay or reimburse the
Custodian for any disbursements or expenses made or incurred in connection
with the use by the Custodian of a Depository.
The Custodian shall execute and deliver and shall cause any Depository to
execute and deliver such certificates in connection with securities
delivered to it or by it under this Agreement as may be required under the
laws of any jurisdiction to exempt from taxation any exemptible transfers
and/or deliveries of any such securities.
16. Responsibility of Custodian.
---------------------------
The Custodian shall not be responsible for the title, validity or
genuineness of any property or evidence of title thereto received by it or
delivered by it pursuant to this Agreement and shall be held harmless in
acting upon proper instructions, Resolutions, 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 and shall be entitled to
receive as conclusive proof of any fact or matter required to be
ascertained by it hereunder, a certificate signed by the President, a
10
Vice President, the Treasurer, the Secretary or an Assistant Secretary of
the Trust. The Custodian may receive and accept a Resolution as conclusive
evidence (a) of the authority of any person to act in accordance with such
vote or (b) of any determination or of any action by the Board of Trustees
pursuant to the Agreement and Declaration of Trust or Code of Regulations
of the 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
from the Secretary or an Assistant Secretary to the contrary.
The Custodian shall be entitled to rely on and may act upon advice of
counsel (who may be counsel for the Trust) on all matters, and shall be
without liability for any action reasonably taken or omitted pursuant to
such advice.
The Custodian shall be held to the exercise of reasonable care in carrying
out the provisions of this Agreement but shall be liable only in the case
of its willful misfeasance, bad faith, or negligence in the performance of
its duties.
If a Fund 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 such Fund being liable for the payment of money or incurring
liability of some other form, such Fund, 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.
The Custodian will provide the Trust with copies of any report obtained by
the Custodian on the system of internal accounting control or independent
audit of a Depository or Subcustodian within ten days after receipt of such
a report by the Custodian. The Custodian will also provide the Trust with
such report on its own system of internal control as the Trust may request
from time to time, but at least annually.
17. Effective Period, Termination and Interpretive and Additional Provisions.
------------------------------------------------------------------------
This Agreement shall become effective with respect to a Fund as of the date
first written above, and shall continue in full force and effect until
terminated with respect to a Fund by an instrument in writing either
delivered or mailed, postage prepaid, to the other party, such termination
to take effect not sooner than sixty (60) days after the date of such
delivery and mailing; provided, however, that the Trust shall not terminate
--------
this contract in contravention of any applicable Federal or state
regulations, or any provisions of the Agreement and Declaration of Trust
and Code of Regulations of the Trust as the same may from time to time be
amended, and further provided, that the Trust may at any time by action of
--------
its Board of Trustees substitute with respect to a Fund another bank or
trust company for the Custodian by giving notice as above to the Custodian.
11
Upon termination hereof the Custodian shall be entitled to such
compensation as may be due it as of the date of such termination and shall
likewise be entitled to reimbursement for its costs, expenses, and
disbursements (whether incurred prior to or subsequent to termination) and
as provided herein.
This Agreement may be amended with respect to a Fund at any time by mutual
agreement of the parties hereto in writing; provided, however, that this
--------
Agreement may not be amended in contravention of any applicable Federal or
state regulations, or any provisions of the Agreement and Declaration of
Trust and Code of Regulations of the Trust as the same may from time to
time be amended.
18. Successor Custodian.
-------------------
If a successor custodian is appointed with respect to a Fund by the Board
of Trustees of the Trust, the Custodian shall, upon termination, deliver to
such successor custodian at the office of the Custodian, duly endorsed and
in form for transfer, all securities then held hereunder and all funds or
other properties of such Fund deposited with or held by it hereunder.
If no such successor custodian is appointed, the Custodian shall, in like
manner, at its office, upon receipt of a certified copy of a vote of the
Shareholders of such Fund, deliver 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 Shareholders of such Fund 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 of its own selection qualified to act as a
custodian under the 1940 Act, having an aggregate capital, surplus, and
undivided profits, as shown by its last published report, of not less than
$20,000,000, all securities, funds, and other properties held by the
Custodian on behalf of such Fund and all instruments held by it relative
thereto and all other property held by it with respect to such Fund under
this Agreement. Thereafter such bank or trust company shall be the
successor of the custodian with respect to such Fund under this Agreement.
In the event that securities, funds, and other properties remain in the
possession of the Custodian after the date of termination hereof owing to
the failure of the trust to procure the certified copy referred to above,
or to the failure of the Trustees to appoint a successor custodian, the
Custodian shall be entitled to fair compensation for its services during
such period and the provisions of this Agreement relating to the duties and
obligations of the Custodian shall remain in full force and effect.
12
19. Compensation of Custodian.
-------------------------
The Custodian shall be entitled to compensation for its services and
expenses as Custodian for the assets of a Fund as set forth on Schedule B
hereto.
20. Massachusetts Law to Apply.
--------------------------
This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of The Commonwealth of Massachusetts.
21. Matters Relating to the Trust as a Massachusetts Business Trust.
---------------------------------------------------------------
The names "CFB MarketWatch Funds" and "Trustees of CFB MarketWatch Funds"
refer respectively to the Trust created and the Trustees, as trustees but
not individually or personally, acting from time to time under the
Agreement and Declaration of Trust dated as of June 4, 1992, to which
reference is hereby made a copy of which is on file at the office of the
Secretary of State of The Commonwealth of Massachusetts and elsewhere as
required by law and to any and all amendments thereto so filed or hereafter
filed. The obligations of "CFB MarketWatch Funds" entered into in the name
or on behalf thereof by any of the Trust's Trustees, representatives or
agents are made not individually, but in such capacities, and are not
binding upon any of the Trustees, Shareholders, representatives, or agents
of the Trust personally, but bind only the assets of the Trust, and all
persons dealing with any series of Shares of the Trust must look solely to
the assets of the Trust belonging to such series for the enforcement of any
claims against the Trust.
IN WITNESS WHEREOF, each of the parties has caused this instrument to be
executed in its name and behalf by its duly authorized officers and its seal to
be hereunto affixed as of the day first written above.
CFB MARKETWATCH FUNDS
By:/s/Xxxx X. Xxxxxxxxxx
-------------------------------------
Title:President
----------------------------------
CENTRAL FIDELITY BANK
By:/s/Xxxxx X. Coeinger
-------------------------------------
Title:Executive Vice President
----------------------------------
13
Date: February 17, 1993
Schedule A
to the Custodian Agreement
between CFB MarketWatch Funds and
Central Fidelity Bank
Name of Fund
----------------------------------------------
CFB MarketWatch Treasury Money Market Fund
CFB MarketWatch Short-Term Fixed Income Fund
CFB MarketWatch Intermediate Fixed Income Fund
CFB MarketWatch Virginia Municipal Bond Fund
CFB MarketWatch Equity Fund
CFB MARKETWATCH FUNDS
By:/s/Xxxx X. Xxxxxxxxxx
-------------------------------------
Title:President
----------------------------------
CENTRAL FIDELITY BANK
By:/s/Xxxxx X. Coeinger
-------------------------------------
Title:Executive Vice President
----------------------------------
A-1
14
Dated: February 17, 1993
Schedule B
to the Custodian Agreement
between CFB MarketWatch Funds and
Central Fidelity Bank
Each of the Funds named in Schedule A to the Custodian Agreement between
CFB MarketWatch Funds and Central Fidelity Bank shall pay Central Fidelity Bank
as follows:
1. Annual Asset Fee:
----------------
$.20 per $1,000 of market value
2. Central Fidelity Bank shall also be entitled to be reimbursed by each
Fund for its reasonable out-of-pocket expenses incurred in the
performance of its duties under the Agreement.
CFB MARKETWATCH FUNDS
By:/s/Xxxx X. Xxxxxxxxxx
-------------------------------------
Title:President
----------------------------------
CENTRAL FIDELITY BANK
By:/s/Xxxxx X. Coeinger
-------------------------------------
Title:Executive Vice President
----------------------------------
* All fees are accrued daily and paid monthly
B-11
