CUSTODIAN AGREEMENT
THIS AGREEMENT made on _______________________, 1997, between Berkeley
Capital Management Funds, a Delaware Business Trust (the "Trust"), on behalf of
Berkeley Capital Management Money Market Fund (hereinafter called the
"Fund"), and FIRSTAR TRUST COMPANY, a corporation organized under the laws of
the State of Wisconsin (hereinafter called "Custodian"),
WHEREAS, the Trust desires that the Fund's securities and cash shall
be hereafter held and administered by Custodian pursuant to the terms of this
Agreement;
NOW, THEREFORE, in consideration of the mutual agreements herein made,
the Trust, on behalf of the Fund, and Custodian agree as follows:
1. DEFINITIONS
The word "securities" as used herein includes stocks, shares, bonds,
debentures, notes, mortgages or other obligations, and any certificates,
receipts, warrants or other instruments representing rights to receive,
purchase, or subscribe for the same, or evidencing or representing any other
rights or interests therein, or in any property or assets.
The words "officers' certificate" shall mean a request or direction or
certification in writing signed in the name of the Trust or the Fund by any two
of the President, a Vice President, the Secretary, and the Treasurer of the
Trust, or any other persons duly authorized to sign by the Board of Trustees.
The word "Board" shall mean Board of Trustees of the Trust.
2. NAMES, TITLES, AND SIGNATURES OF THE TRUST'S OFFICERS
An officer of the Trust will certify to Custodian the names and
signatures of those persons authorized to sign the officers' certificates
described in Section 1 hereof, and the names of the members of the Board of
Trustees, together with any changes which may occur from time to time.
ADDITIONAL SERIES. The Trust is authorized to issue separate classes of
shares of beneficial interest representing interests in separate investment
portfolios. The parties intend that each portfolio established by the Trust,
now or in the future, be covered by the terms and conditions of this agreement.
3. RECEIPT AND DISBURSEMENT OF MONEY
A. Custodian shall open and maintain a separate account or accounts
in the name of the Fund, subject only to draft or order by Custodian acting
pursuant to the terms of this Agreement. Custodian shall hold in such account
or accounts, subject to the provisions hereof, all cash received by it from or
for the account of the Fund. Custodian shall make payments of cash to, or for
the account of, the Fund from such cash only:
(a) for the purchase of securities for the portfolio of the Fund upon
the delivery of such securities to Custodian, registered in the
name of the Fund or of the nominee of Custodian referred to in
Section 7 or in proper form for transfer;
(b) for the purchase or redemption of shares of the common stock of
the Fund upon delivery thereof to Custodian, or upon proper
instructions from the Trust;
(c) for the payment of interest, dividends, taxes, investment
adviser's fees or operating expenses (including, without
limitation thereto, fees for legal, accounting, auditing, and
custodian services and expenses for printing and postage);
(d) for payments in connection with the conversion, exchange, or
surrender of securities owned or subscribed to by the Trust on
behalf of the Fund held by or to be delivered to Custodian; or
(e) for other proper corporate purposes certified by resolution of
the Board of Trustees of the Trust.
Before making any such payment, Custodian shall receive (and may rely
upon) an officers' certificate requesting such payment and stating that it is
for a purpose permitted under the terms of items (a), (b), (c), or (d) of this
Subsection A, and also, in respect of item (e), upon receipt of an officers'
certificate specifying the amount of such payment, setting forth the purpose for
which such payment is to be made, declaring such purpose to be a proper
corporate purpose, and naming the person or persons to whom such payment is to
be made, provided, however, that an officers' certificate need not precede the
disbursement of cash for the purpose of purchasing a money market instrument, or
any other security with same or next-day settlement, if the President, a Vice
President, the Secretary or the Treasurer of the Trust issues appropriate oral
or facsimile instructions to Custodian and an appropriate officers' certificate
is received by Custodian within two business day thereafter.
B. Custodian is hereby authorized to endorse and collect all checks,
drafts or other orders for the payment of money received by Custodian for the
account of the Fund.
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C. Custodian shall, upon receipt of proper instructions, make federal
funds available to the Fund as of specified times agreed upon from time to time
by the Trust on behalf of the Fund and the custodian in the amount of checks
received in payment for shares of the Fund which are deposited into the
Fund's account.
4. SEGREGATED ACCOUNTS
Upon receipt of proper instructions, the Custodian shall establish and
maintain a segregated account(s) for and on behalf of the Fund, into which
account(s) may be transferred cash and/or securities.
5. TRANSFER, EXCHANGE, REDELIVERY, ETC. OF SECURITIES
Custodian shall have sole power to release or deliver any securities
of the Fund held by it pursuant to this Agreement. Custodian agrees to release,
transfer, exchange or deliver securities held by it hereunder only:
(a) for sales of such securities for the account of the Fund upon
receipt by Custodian of payment therefore;
(b) when such securities are called, redeemed or retired or otherwise
become payable;
(c) for examination by any broker selling any such securities in
accordance with "street delivery" custom;
(d) in exchange for, or upon conversion into, other securities alone
or other securities and cash whether pursuant to any plan of
merger, consolidation, reorganization, recapitalization or
readjustment, or otherwise;
(e) upon conversion of such securities pursuant to their terms into
other securities;
(f) upon exercise of subscription, purchase or other similar rights
represented by such securities;
(g) for the purpose of exchanging interim receipts or temporary
securities for definitive securities;
(h) for the purpose of redeeming in kind shares of common stock of
the Fund upon delivery thereof to Custodian; or
(i) for other proper corporate purposes.
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As to any deliveries made by Custodian pursuant to items (a), (b),
(d), (e), (f), and (g), securities or cash receivable in exchange therefore
shall be deliverable to Custodian.
Before making any such transfer, exchange or delivery, Custodian shall
receive (and may rely upon) an officers' certificate requesting such transfer,
exchange or delivery, and stating that it is for a purpose permitted under the
terms of items (a), (b), (c), (d), (e), (f), (g), or (h) of this Section 5 and
also, in respect of item (i), upon receipt of an officers, certificate
specifying the securities to be delivered, setting forth the purpose of 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, provided, however, that an officers' certificate need not precede
any such transfer, exchange or delivery of a money market instrument, or any
other security with same or next-day settlement, if the President, a Vice
President, the Secretary or the Treasurer of the Trust issues appropriate oral
or facsimile instructions to Custodian and an appropriate officers' certificate
is received by Custodian within two business days thereafter.
6. CUSTODIAN'S ACTS WITHOUT INSTRUCTIONS
Unless and until Custodian receives an officers' certificate to the
contrary, Custodian shall; (a) present for payment all coupons and other income
items held by it for the account of the Fund, which call for payment upon
presentation and hold the cash received by it upon such payment for the account
of the Fund; (b) collect interest and cash dividends received, with notice to
the Trust on behalf of the Fund; (c) hold for the account of the Fund hereunder
all stock dividends, rights, and similar securities issued with respect to any
securities held by it hereunder; and (d) execute, as agent on behalf of the
Fund, all necessary ownership certificates required by the Internal Revenue Code
or the Income Tax Regulations of the United States Treasury Department or under
the laws of any state then in effect, inserting the Fund's name on such
certificates as the owner of the securities covered thereby, to the extent it
may lawfully do so.
7. REGISTRATION OF SECURITIES
Except as otherwise directed by an officers' certificate, Custodian
shall register all securities, except such as are in bearer form, in the name of
a registered nominee of Custodian as defined in the Internal Revenue Code and
any Regulations of the Treasury Department issued hereunder or in any provision
of any subsequent federal tax law exempting such transaction from liability for
stock transfer taxes, and shall execute and deliver all such certificates in
connection therewith as may be required by such laws or regulations or under the
laws of any state. Custodian shall cause the specific securities held by it
hereunder to be at all times identifiable in its records as held for the account
of the Fund.
The Trust, on behalf of the Fund, shall from time to time furnish to
Custodian appropriate instruments to enable Custodian to hold or deliver in
proper form for transfer, or to register in the name of its registered nominee,
any securities which it may hold for the account of the Fund and which may from
time to time be registered in the name of the Fund.
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8. VOTING AND OTHER ACTION
Neither Custodian nor any nominee of Custodian shall vote any of the
securities held hereunder by or for the account of the Fund, except in
accordance with the instructions contained in an officers' certificate.
Custodian shall deliver, or cause to be executed and delivered, to the
Corporation all notices, proxies, and proxy soliciting materials with relation
to such securities, such proxies to be executed by the registered holder of such
securities (if registered otherwise than in the name of the Fund), but without
indicating the manner in which such proxies are to be voted.
9. TRANSFER TAX AND OTHER DISBURSEMENTS
The Trust on behalf of the Fund shall pay or reimburse 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 Custodian in the performance of this Agreement.
Custodian shall execute and deliver such certificates in connection
with securities delivered to it or by it under this Agreement as may be required
under the provisions of the Internal Revenue Code and any Regulations of the
Treasury Department issued thereunder, or under the laws of any state, to exempt
from taxation any exemptable transfer and/or deliveries of any such securities.
10. CONCERNING CUSTODIAN
Custodian shall be paid as compensation for its services pursuant to
this Agreement such compensation as may from time to time be agreed upon in
writing between the two parties. Until modified in writing, such compensation
shall be as set forth in Exhibit A attached hereto.
Custodian shall not be liable for any action taken in good faith upon
any certificate herein described or certified copy of any resolution of the
Board, and may rely on the genuineness of any such document which it may in good
faith believe to have been validly executed.
The Trust on behalf of the Fund agrees to indemnify and hold harmless
Custodian and its nominee from all taxes, charges, expenses, assessments, claims
and liabilities (including counsel fees) incurred or assess against it or by its
nominee in connection with the performance of this Agreement, except such as may
arise from its or its nominee's breach of this Agreement or their own negligent
action, negligent failure to act or willful misconduct, and except for taxes on
the income or property of Custodian, Custodian is authorized to charge any
account of the Fund for such items.
In the event of any advance of cash for any purpose made by Custodian resulting
from orders or instructions of the Trust on behalf of the Fund, or in the event
that Custodian or its nominee shall incur or be assessed any taxes, charges,
expenses, assessments, claims, or liabilities in connection
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with the performance of this Agreement, except such as may arise from its or its
nominee's breach of this Agreement or their own negligent action, negligent
failure to act or willful misconduct, and except for taxes on the income or
property of Custodian, any property at any time held for the account of the Fund
shall be security therefore.
Custodian agrees to indemnify and hold harmless the Trust and the Fund, and the
Trust's officers, trustees, and agents, from all charges, expenses, assessments,
and claims/liabilities (including counsel fees) incurred or assessed against and
of the forgoing in connection with Custodian's performance or attempted
performance of this Agreement, except such as may arise from the Trust's own
negligent action, negligent failure to act, or willful misconduct.
11. SUBCUSTODIANS
Custodian is hereby authorized to engage another bank or trust
company as a Subcustodian for all or any part of the Fund's assets, so long as
any such bank or trust company is a bank or trust company organized under the
laws of any state of the United States, having an aggregate capital, surplus and
undivided profit, as shown by its last published report, of not less than Two
Million Dollars ($2,000,000) and is qualified to act as a Custodian or
Subcustodian of the Fund under Section 17 of the Investment Company Act of 1940,
as amended, and the rules promulgated thereunder, and provided further that, if
the Custodian utilizes the services of a Subcustodian, the Custodian shall
remain fully liable and responsible for any losses and expenses incurred by the
Trust or the Fund resulting from the acts or omissions of the Subcustodian as
fully as if the Custodian was directly responsible for any such losses and
expenses under the terms of the Custodian Agreement.
Notwithstanding anything contained herein, if the Trust on behalf of
the Fund requires the Custodian to engage specific Subcustodians for the
safekeeping and/or clearing of assets, the Trust agrees to indemnify and hold
harmless Custodian from all claims, expenses and liabilities incurred or
assessed against it in connection with the use of such Subcustodian in regard to
the Fund's assets, except as may arise from the Custodian's own negligent
action, negligent failure to act or willful misconduct.
12. REPORTS BY CUSTODIAN
Custodian shall furnish the Trust periodically as agreed upon with a
statement summarizing all transactions and entries for the account of the Fund.
Custodian shall furnish to the Trust, at the end of every month, a list of the
portfolio securities showing the aggregate cost of each issue. The books and
records of Custodian pertaining to its actions under this Agreement shall be
open to inspection and audit at reasonable times by officers of, and by auditors
employed by, the Trust.
13. TERMINATION OR ASSIGNMENT
This Agreement may be terminated by the Trust on behalf of the Fund,
or by Custodian, on at least ninety (90) days' notice, given in writing and sent
by registered mail to
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Custodian at X.X. Xxx 0000, Xxxxxxxxx, Xxxxxxxxx 00000, or to the Trust at 000
Xxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxxxx, XX 00000, or by facsimile
transmission to Custodian at ___________ or to the Fund at (000) 000-0000, as
the case may be. Upon any termination of this Agreement, pending appointment of
a successor to Custodian or a vote of the shareholders of the Fund to dissolve
or to function without a custodian of its cash, securities and other property,
Custodian shall not deliver cash, securities or other property of the Fund to
the Fund, but may deliver them to a bank or trust company of its own selection,
having an aggregate capital, surplus and undivided profits, as shown by its last
published report of not less than Two Million Dollars ($2,000,000) and qualified
to act as a Custodian of the Fund under Section 17 of the Investment Company Act
of 1940 and the rules promulgated thereunder as a Custodian for the Fund to be
held under terms similar to those of this Agreement, provided, however, that
Custodian shall not be required to make any such delivery or payment until full
payment shall have been made by the Trust on behalf of the Fund of all
liabilities constituting a charge on or against the properties then held by
Custodian or on or against Custodian, and until full payment shall have been
made to Custodian of all its fees, compensation, costs and expenses, subject to
the provisions of Section 10 of this Agreement.
This Agreement may not be assigned by Custodian without the consent of
the Trust on behalf of the Fund, authorized or approved by a resolution of the
Trust's Board of Trustees.
14. DEPOSITS OF SECURITIES IN SECURITIES DEPOSITORIES
No provision of this Agreement shall be deemed to prevent the use by
Custodian of a central securities clearing agency or securities depository,
provided, however, that Custodian and the central securities clearing agency or
securities depository comply with all applicable federal and state laws and
regulations, and the Board of Trustees of the Trust approves by resolution the
use of such central securities clearing agency or securities depository.
15. RECORDS
To the extent that Custodian in any capacity prepares or maintains any
records required to be maintained and preserved by the Trust pursuant to the
provisions of the Investment Company Act of 1940, as amended, or the rules and
regulations promulgated thereunder, Custodian agrees to make any such records
available to the Trust upon request and to preserve such records for the periods
prescribed in Rule 31a-2 under the Investment Company Act of 1940, as amended.
16. REPRESENTATIONS, WARRANTIES, AND COVENANTS
Custodian represents, warrants, and covenants:
(a) that it will comply in all materials respects with all applicable
laws and regulations, including but not limited to the Investment Company Act of
1940, as amended, and the rules and regulations thereunder, in performing its
duties under this Agreement;
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(b) that it is and will remain throughout the term of this Agreement
qualified to act as a custodian of the Fund under Section 17 of the Investment
Company Act of 1940, as amended, and the rules and regulations promulgated
thereunder; and
(c) that it will maintain, in confidence, all information relating to
the Trust's and the Fund's business which Custodian receives during the course
of rendering any service hereunder.
17. CHOICE OF LAW
This Agreement shall be construed in accordance with the laws of the State
of California. Custodian hereby consents to the exclusive jurisdiction, venue,
and forum of any state or federal court in San Francisco, California with
respect to any action, whether commenced by the Trust or any other party, which,
in whole or in part, in any way arises under or relates to this Agreement.
Custodian hereby authorizes and accepts service of process sufficient for
personal jurisdiction in any action against it as contemplated by this paragraph
by registered or certified mail, return receipt requested, postage prepaid, to
its address for the giving of notices as set forth in this Agreement, or in the
manner set forth in Section 19 of this Agreement for the giving of notice.
18. ATTORNEYS' FEES
If any party to this Agreement seeks to enforce its rights under this
Agreement or construe any provision of this Agreement by legal proceedings or
otherwise, the non-prevailing party in such proceedings shall pay all reasonable
costs and expenses incurred by the prevailing party (who shall be the party who
obtains substantially the relief sought by such party, whether by settlement,
compromise, or judgment), including without limitation court costs and all
reasonable attorneys' fees.
19. NOTICES
Notices of any kind to be given by either party to the other party shall be
in writing and shall be duly given if mailed or delivered to Custodian at
________________ or to the Trust or the Fund at 000 Xxxxxxxxxx Xxxxxx, Xxxxx
0000, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 or sent by facsimile transmission to
Custodian at ______________ or to the Trust or the Fund at (000) 000-0000.
20. NOTICE OF DECLARATION OF TRUST
Custodian agrees that the Trust's obligations under this Agreement shall be
limited to the Fund and its assets, and that Custodian shall not seek
satisfaction of any such obligation from the shareholders of the Trust nor from
any Trustee, officer, employee, or agent of the Trust.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed and their respective corporate seals to be affixed hereto as of the
date first above-written by their respective officers thereunto duly authorized.
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Executed in several Counterparts, each of which is an original.
Attest: FIRSTAR TRUST COMPANY
________________________ By ________________________________
Assistant Secretary Vice President
Attest: Berkeley Capital Management Funds
________________________ By ________________________________
Xxxxxxx X. Xxxxxx
President and Principal Executive
Officer
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EXHIBIT A
BERKELEY CAPITAL MANAGEMENT MONEY MARKET FUND
CUSTODY SERVICE
MONEY MARKET FUND ANNUAL FEE SCHEDULE
Annual fee based upon market value
1/2 basis points per year
Minimum annual fee - $3,000 per year
Investment transactions (purchase, sale, exchange, tender, redemption,
maturity, receipt, delivery):
$12.00 per book entry security (depository or Federal Reserve system)
$25.00 per definitive security (physical)
$25.00 per mutual fund trade
$75.00 per Euroclear
$ 8.00 per principal reduction on pass-through certificates
$35.00 per option/futures contract
$10.00 per variation margin
$15.00 per Fed wire deposit or withdrawal
Variable Amount Demand Notes: Used as a short-term investment, variable
amount notes offer safety and prevailing high interest rates. Our charge,
which is 1/4 of 1%, is deducted from the variable amount note income at the
time it is credited to your account.
Plus out-of-pocket expenses, and extraordinary expenses based upon
complexity
Fees are billed monthly, based upon market value at the beginning of the
month
