EXHIBIT (8)
CUSTODIAL AGREEMENT
CUSTODY AGREEMENT
THIS AGREEMENT made the 10th day of May, 1996, by and between First Western
Bank & Trust, ("Custodian"), a bank organized under the laws of the state of
North Dakota, having its trust office located at 000 Xxxxx Xxxxxxxx, Xxxxx,
Xxxxx Xxxxxx 00000, and Xxxxxx Managed Portfolios, ("Fund"), a Massachusetts
business trust having its principal office and place of business at 0 Xxxxx
Xxxx, Xxxxx, Xxxxx Xxxxxx 00000.
W I T N E S S E T H:
WHEREAS, Fund desires to appoint First Western Bank and Trust as Custodian
of the securities and monies of Fund's investment portfolio; and
WHEREAS, First Western Bank & Trust is willing to accept such appointment;
NOW THEREFORE, for and in consideration of the mutual promises contained
herein, the parties hereto, intending to be legally bound, mutually covenant
and agree as follows:
1. APPOINTMENT OF CUSTODIAN. Fund hereby constitutes and appoints
Custodian as custodian of the Fund which is to include:
A. Appointment as custodian of the securities and monies at any time
owned by the Fund; and
B. Appointment as agent to perform certain accounting and
recordkeeping functions required of a duly registered investment
company in compliance with applicable provisions of federal,
state and local laws, rules and regulations including, as may be
required:
1. Provide information necessary for Fund to file required
financial reports; maintaining and preserving required books,
accounts and records as the basis for such reports; and
performing certain daily functions in connection with such
accounts and records.
2. Acting as liaison with independent auditors.
2. DELIVERY OF CORPORATE DOCUMENTS. Fund has delivered or will deliver to
Custodian prior to the effective date of this Agreement, copies of the
following documents and all amendments or supplements thereto,
properly certified or authenticated:
A. Resolutions of the Board of Trustees of Fund appointing Custodian
as custodian hereunder and approving the form of this Agreement;
and
B. Resolutions of the Board of Trustees of Fund designating certain
persons to give instructions on behalf of the Fund to Custodian
and authorizing Custodian to rely upon written instructions over
their signatures.
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3. DUTIES AND RESPONSIBILITIES OF CUSTODIAN.
A. Delivery of Assets
Fund will deliver or cause to be delivered to Custodian on the
effective date of this Agreement, or as soon thereafter as
practicable, and from time to time thereafter, all portfolio
securities acquired by it and monies then owned by it except as
permitted by the Investment Company Act of 1940 or from time to
time coming into its possession during the time this Agreement
shall continue in effect. Custodian shall have no responsibility
or liability whatsoever for or on account of securities or monies
not so delivered. All securities so delivered to Custodian (other
than bearer securities) shall be registered in the name of Fund
or its nominee, or of a nominee of Custodian, or shall be
properly endorsed and in form for transfer satisfactory to
Custodian.
B. Delivery of Accounts and Records
Fund shall turn over to Custodian all of the Fund's relevant
accounts and records previously maintained by it. Custodian shall
be entitled to rely conclusively on the completeness and
correctness of the accounts and records turned over to it by
Fund, and Fund shall indemnify and hold Custodian harmless of and
from any and all expenses, damages and losses whatsoever arising
out of or in connection with any error, omission, inaccuracy or
other deficiency of such accounts and records or in the failure
of Fund to provide any portion of such or to provide any
information needed by the Custodian knowledgeably to perform its
function hereunder.
C. Delivery of Assets to Third Parties
Custodian will receive delivery of and keep safely the assets of
Fund delivered to it from time to time and the assets of each
Portfolio segregated in a separate account. Custodian will not
deliver, assign, pledge or hypothecate any such assets to any
person except as permitted by the provisions of this Agreement or
any agreement executed by it according to the terms of Section
3.S. of this Agreement. Upon delivery of any such assets to a
subcustodian pursuant to Section 3.S. of this Agreement,
Custodian will create and maintain records identifying those
assets which have been delivered to the subcustodian as belonging
to the applicable Portfolio of the Fund. The Custodian is
responsible for the safekeeping of the securities and monies of
Fund only until they have been transmitted to and received by
other persons as permitted under the terms of this Agreement.
Custodian shall be responsible for the monies and securities of
Fund(s) held by eligible foreign subcustodians to the extent the
domestic custodian with which the Custodian contracts is
responsible to Custodian. Custodian may participate directly or
indirectly through a subcustodian in the Depository Trust
Company, Treasury/Federal Reserve Book Entry System, Participant
Trust Company or other depository approved by the Fund (as such
entities are defined at 17 CFR Section 270.17f(b)).
D. Registration of Securities
Custodian will hold stocks and other registerable portfolio
securities of Fund registered in the name of Fund or in the name
of any nominee of Custodian for whose fidelity and liability
Custodian will be fully responsible, or in street certificate
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form, so-called, with or without any indication of fiduciary such
portfolio securities in the name of its authorized nominee. All
securities, and the ownership thereof by Fund, which are held by
Custodian hereunder, however, shall at all times be identifiable
on the records of the Custodian. The Fund agrees to hold
Custodian and its nominee harmless for any liability as a record
holder of securities held in custody.
E. Exchange of Securities
Upon receipt of instructions as defined herein in Section 4.A.,
Custodian will exchange, or cause to be exchanged, portfolio
securities held by it for the account of Fund for other
securities or cash issued or paid in connection with any
reorganization, recapitalization, merger, consolidation, split-up
of shares, change of par value, conversion or otherwise, and will
deposit any such securities in accordance with the terms of any
reorganization or protective plan. Without instructions,
Custodian is authorized to exchange securities held by it in
temporary form for securities in definitive form, to effect an
exchange of shares when the par value of the stock is changed,
and, upon receiving payment therefor, to surrender bonds or other
securities held by it at maturity or when advised of earlier call
for redemption, except that Custodian shall receive instructions
prior to surrendering any convertible security.
F. Purchases of Investments of the Fund
Fund will, on each business day on which a purchase of securities
shall be made by it, deliver to Custodian instructions which
shall specify with respect to each such purchase:
1. The name of the Portfolio making such purchase;
2. The name of the issuer and description of the security;
3. The number of shares or the principal amount purchased, and
accrued interest, if any;
4. The trade date;
5. The settlement date;
6. The purchase price per unit and the brokerage commission,
taxes and other expenses payable in connection with the
purchase;
7. The total amount payable upon such purchase; and
8. The name of the person from whom or the broker or dealer
through whom the purchase was made.
In accordance with such instructions, Custodian will pay for out
of monies held for the account of Fund, but only insofar as
monies are available therein for such purpose, and receive the
portfolio securities so purchased by or for the account of Fund
except that Custodian may in its sole discretion advance funds to
the Fund which may result in an overdraft because the monies held
by the Custodian on behalf of the Fund are insufficient to pay
the total amount payable upon such purchase. Such payment will be
made only upon receipt by Custodian of the securities so
purchased in form for transfer satisfactory to Custodian.
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G. Sales and Deliveries of Investments of the Fund - Other than
Options and Futures
Fund will, on each business day on which a sale of investment
securities of Fund has been made, deliver to Custodian
instructions specifying with respect to each such sale:
1. The name of the Portfolio making such sale;
2. The name of the issuer and description of the securities;
3. The number of shares or principal amount sold, and accrued
interest, if any;
4. The date on which the securities sold were purchased or
other information identifying the securities sold and to be
delivered;
5. The trade date;
6. The settlement date;
7. The sale price per unit and the brokerage commission, taxes
or other expenses payable in connection with such sale;
8. The total amount to be received by Fund upon such sale; and
9. The name of the broker or dealer through whom or person to
whom the sale was made.
In accordance with such instructions, Custodian will deliver or
cause to be delivered the securities thus designated as sold for
the account of Fund to the broker or other person specified in
the instructions relating to such sale, such delivery to be made
only upon receipt of payment therefor in such form as is
satisfactory to Custodian, with the understanding that Custodian
may deliver or cause to be delivered securities for payment in
accordance with the customs prevailing among dealers in
securities.
H. Purchases or Sales of Security Options, Options on Indices and
Security Index Futures Contracts
Fund will, on each business day on which a purchase or sale of
the following options and/or futures shall be made by it, deliver
to Custodian instructions which shall specify with respect to
each such purchase or sale:
1. The name of the Portfolio making such purchase or sale;
2. Security Options
a. The underlying security;
b. The price at which purchased or sold;
c. The expiration date;
d. The number of contracts;
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e. The exercise price;
f. Whether the transaction is an opening, exercising,
expiring or closing transaction;
g. Whether the transaction involves a put or call;
h. Whether the option is written or purchased;
i. Market on which option traded;
j. Name and address of the broker or dealer through whom
the sale or purchase was made.
3. Options on Indices
a. The index;
b. The price at which purchased or sold;
c. The exercise price;
d. The premium;
e. The multiple;
f. The expiration date;
g. Whether the transaction is an opening, exercising,
expiring or closing transaction;
h. Whether the transaction involves a put or call;
i. Whether the option is written or purchased;
j. The name and address of the broker or dealer through
whom the sale or purchase was made, or other applicable
settlement instructions.
4. Security Index Futures Contracts
a. The last trading date specified in the contract and,
when available, the closing level, thereof;
b. The index level on the date the contract is entered
into;
c. The multiple;
d. Any margin requirements;
e. The need for a segregated margin account (in addition to
instructions, and if not already in the possession of
Custodian, Fund shall deliver a substantially complete
and executed custodial safekeeping account and
procedural agreement which shall be incorporated by
reference into this Custody Agreement); and
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f. The name and address of the futures commission merchant
through whom the sale or purchase was made, or other
applicable settlement instructions.
5. Options on Index Future Contracts
a. The underlying index future contract;
b. The premium;
c. The expiration date;
d. The number of options;
e. The exercise price;
f. Whether the transaction involves an opening,
existing, expiring or closing transaction;
g. Whether the transaction involves a put or call;
h. Whether the option is written or purchased; and
i. The market on which the option is traded.
I. Securities Pledged or Loaned
If specifically allowed for in the prospectus of Fund:
1. Upon receipt of instructions, Custodian will release or
cause to be released securities held in custody to the
pledgee designated in such instructions by way of pledge or
hypothecation to secure any loan incurred by Fund; provided,
however, that the securities shall be released only upon
payment to Custodian of the monies borrowed, except that in
cases where additional collateral is required to secure a
borrowing already made, further securities may be released
or caused to be released for that purpose upon receipt of
instructions. Upon receipt of instructions, Custodian will
pay, but only from funds available for such purpose, any
such loan upon redelivery to it of the securities pledged or
hypothecated therefor and upon surrender of the note or
notes evidencing such loan.
2. Upon receipt of instructions, Custodian will release
securities held in custody to the borrower designated in
such instructions; provided, however, that the securities
will be released only upon deposit with Custodian of full
cash collateral as specified in such instructions, and that
Fund will retain the right to any dividends, interest or
distribution on such loaned securities. Upon receipt of
instructions and the loaned securities, Custodian will
release the cash collateral to the borrower.
J. Routine Matters
Custodian will, in general, attend to all routine and mechanical
matters in connection with the sale, exchange, substitution,
purchase, transfer, or other dealings with securities or other
property of Fund except as may be otherwise provided in this
Agreement or directed from time to time by the Board of Trustees
of Fund.
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K. Deposit Account
Custodian will open and maintain a special purpose deposit
account(s) in the name of Custodian on behalf of each Portfolio
(Accounts), subject only to draft or order by Custodian upon
receipt of instructions. All monies received by Custodian from or
for the account of a Portfolio shall be deposited in said
Accounts.
L. Income and Other Payments To Fund
Custodian will:
1. Collect, claim and receive and deposit for the Account of each
Portfolio of the Fund all income and other payments which become
due and payable on or after the effective date of this Agreement
with respect to the securities deposited under this Agreement,
and credit the account of the applicable Portfolio of the Fund.
2. Execute ownership and other certificates and affidavits for all
federal, state and local tax purposes in connection with the
collection of bond and note coupons; and
3. Take such other action as may be necessary or proper in
connection with:
a. the collection, receipt and deposit of such income and other
payments, including but not limited to the presentation for
payment of:
1. all coupons and other income items requiring
presentation; and
2. all other securities which may mature or be called,
redeemed, retired or otherwise become payable and
regarding which the Custodian has actual knowledge, or
notice of which is contained in publications of the type
to which it normally subscribes for such purpose; and
b. the endorsement for collection, in the name of the applicable
Portfolio of the Fund, of all checks, drafts or other
negotiable instruments.
Custodian, however, will not be required to institute suit or
take other extraordinary action to enforce collection except upon
receipt of instructions and upon being indemnified to its
satisfaction against the costs and expenses of such suit or other
actions. Custodian will receive, claim and collect all stock
dividends, rights and other similar items and will deal with the
same pursuant to instructions. Unless prior instructions have
been received to the contrary, Custodian will, without further
instructions, sell any rights held for the account of Fund on the
last trade date prior to the date of expiration of such rights.
M. Payment of Dividends and Other Distributions
On the declaration of any dividend or other distribution on the
shares of Beneficial Interest of Fund ("Fund Shares") by the
Board of Trustees of Fund, Fund shall deliver to Custodian
instructions with respect thereto, including a copy of the
Resolution of said Board of Trustees certified by the Secretary
or an Assistant Secretary of Fund wherein there shall be set
forth the record date as of which shareholders entitled to
receive such dividend or other distribution shall be determined,
the date of payment of such dividend or distribution, and the
amount payable per share on such dividend or distribution.
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Except if the ex-dividend date and the reinvestment date of any
dividend are the same, in which case funds shall remain in the
Custody Account, on the date specified in such Resolution for the
payment of such dividend or other distribution, Custodian will
pay out of the monies held for the account of Fund, insofar as
the same shall be available for such purposes, and credit to the
account of the Dividend Disbursing Agent for Fund, such amount as
may be necessary to pay the amount per share payable in cash on
Fund Shares issued and outstanding on the record date established
by such Resolution.
N. Shares of Fund Purchased by Fund
Whenever any Fund Shares are repurchased or redeemed by Fund,
Fund or its agent shall advise Custodian of the aggregate dollar
amount to be paid for such shares and shall confirm such advice
in writing. Upon receipt of such advice, Custodian shall charge
such aggregate dollar amount to the Account of Fund and either
deposit the same in the account maintained for the purpose of
paying for the repurchase or redemption of Fund Shares or deliver
the same in accordance with such advice.
Custodian shall not have any duty or responsibility to determine
that Fund Shares have been removed from the proper shareholder
account or accounts or that the proper number of such shares have
been cancelled and removed from the shareholder records.
O. Shares of Fund Purchased from Fund
Whenever Fund Shares are purchased from Fund, Fund will deposit
or cause to be deposited with Custodian the amount received for
such shares.
Custodian shall not have any duty or responsibility to determine
that Fund Shares purchased from Fund have been added to the proper
shareholder account or accounts or that the proper number of such
shares have been added to the shareholder records.
P. Proxies and Notices
Custodian will promptly deliver or mail or have delivered or
mailed to Fund all proxies properly signed, all notices of
meetings, all proxy statements and other notices, requests or
announcements affecting or relating to securities held by
Custodian for Fund and will, upon receipt of instructions,
execute and deliver or cause its nominee to execute and deliver
or mail or have delivered or mailed such proxies or other
authorizations as may be required. Except as provided by this
Agreement or pursuant to instructions hereafter received by
Custodian, neither it nor its nominee will exercise any power
inherent in any such securities, including any power to vote the
same, or execute any proxy, power of attorney, or other similar
instrument voting any of such securities, or give any consent,
approval or waiver with respect thereto, or take any other
similar action.
Q. Disbursements
Custodian will pay or cause to be paid insofar as funds are
available for the purpose, bills, statements and other
obligations of Fund (including but not limited to obligations in
connection with the conversion, exchange or surrender of
securities owned by Fund, interest charges, dividend
disbursements, taxes, management fees,
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custodian fees and expenses incurred for the benefit of the
Fund(s), legal fees, auditors' fees, transfer agents' fees,
brokerage commissions, compensation to personnel, and other
operating expenses of the Fund) pursuant to instructions of Fund
setting forth the name of the person to whom payment is to be
made, the amount of the payments, and the purpose of the payment.
R. Daily Statement of Accounts
Custodian will, within a reasonable time, render to Fund as of
the close of business on each day, a detailed statement of the
amounts received or paid and of securities received or delivered
for the account of Fund during said day. Custodian will, from
time to time, upon request by Fund, render a detailed statement
of the securities and monies held for Fund under this Agreement,
and Custodian will maintain such books and records as are
necessary to enable it to do so and will permit such persons as
are authorized by Fund including Fund's independent pubic
accountants, access to such records or confirmation of the
contents of such records; and if demanded, will permit federal
and state regulatory agencies to examine the securities, books
and records. Upon the written instructions of Fund or as demanded
by federal or state regulatory agencies, Custodian will instruct
any subcustodian to permit such persons as are authorized by Fund
including Fund's independent public accountants, access to such
records or confirmation of the contents of such records; and if
demanded, to permit federal and state regulatory agencies to
examine the books, records and securities held by subcustodian
which relate to Fund.
S. Appointment of Subcustodian
1. Notwithstanding any other provisions of this Agreement, all
or any of the monies or securities of Fund may be held in
Custodian's own custody or in the custody of one or more
other banks or trust companies selected by Custodian and
approved by the Fund's Board of Trustees. Any such
subcustodian must have the qualifications required for
custodian under the Investment Company Act of 1940, as
amended. The subcustodian may participate directly or
indirectly in the Depository Trust Company, Treasury/Federal
Reserve Book Entry System, Participant Trust Company or other
depository approved by the Fund (as such entities are defined
at 17 CFR Sec. 170.17f-4(b)). The appointment of any
subcustodian, depository, or clearing agency used by the
Custodian and approved by the Fund will not relieve Custodian
of any of its obligation hereunder except as provided in
Section 3.C. hereof.
2. Notwithstanding any other provisions of this Agreement,
Fund's foreign securities (as defined in Rule 17f5(c)(1)
under the Investment Company Act of 1940) and Fund's cash or
cash equivalents, in amounts reasonably necessary to effect
Fund's foreign securities transactions, may be held in the
custody of one or more banks or trust companies acting as
subcustodians, according to Section 3.S.1; and thereafter,
pursuant to a written contract or contracts as approved by
Fund's Board of Trustees, may be transferred to an account
maintained by such subcustodian with an eligible foreign
custodian, as defined in Rule 17f-5(c)(2), provided that any
such arrangement involving a foreign custodian shall be in
accordance with the provisions of Rule 17f-5 under the
Investment Company Act of 1940 as that Rule may be amended
from time to time.
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T. Accounts and Records
Custodian with the direction and as interpreted by the Fund,
Fund's accountants and/or other tax advisors will prepare and
maintain complete, accurate and current all accounts and records
required to be maintained by Fund and under the general Rules and
Regulations under the Investment Company Act of 1940 ("Rules") as
amended, under the Internal Revenue Code of 1986 ("Code") as
amended and as agreed upon between the parties and will preserve
said records in the manner and for the periods prescribed in said
Rules and Codes, or for such longer periods as is agreed upon by
the parties.
Custodian relies upon Fund to furnish, in writing, accurate and
timely information to complete Fund's records.
Custodian shall incur no liability and Fund shall indemnify and
hold harmless Custodian from and against any liability arising
from any failure of Fund to furnish such information in a timely
and accurate manner, even if Fund subsequently provides accurate
but untimely information. It shall be the responsibility of Fund
to furnish Custodian with the declaration, record and payment
dates and amounts of any dividends or income and any other
special actions required concerning each of its securities when
such information is not readily available from generally accepted
securities industry services or publications.
U. Accounts and Records Property of Fund
Custodian acknowledges that all of the accounts and records
maintained by Custodian pursuant to the Agreement are the
property of the Fund, and will be made available to Fund for
inspection or reproduction within a reasonable period of time,
upon demand. Custodian will assist Fund's independent auditors,
or upon approval of Fund, or upon demand, any regulatory body, in
any requested review of Fund's accounts and records but shall be
reimbursed for all expenses and employee time invested in any
such review outside of routine and normal periodic reviews. Upon
receipt from Fund of the necessary information, Custodian will
supply necessary data for Fund's completion of any necessary tax
returns, questionnaires, periodic reports to Shareholders and
such other reports and information requests as Fund and Custodian
shall agree upon from time to time.
V. Adoption of Procedures
Custodian and Fund may from time to time adopt procedures as they
agree upon, and Custodian may conclusively assume that no
procedure approved by Fund, or directed by Fund, conflicts with
or violates any requirements of its prospectus, Declaration of
Trust, Bylaws, or any rule or regulation of any regulatory body
or governmental agency. Fund will be responsible to notify
Custodian of any changes in statutes, regulations, rules or
policies which might necessitate changes in Custodian's
responsibilities or procedures.
W. Overdrafts
If Custodian shall in its sole discretion advance funds to the
account of the Fund which results in an overdraft because the
monies held by Custodian on behalf of the
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Fund are insufficient to pay the total amount payable upon a
purchase of securities as specified in Fund's instructions or for
some other reason, the amount of the overdraft shall be payable
by the Fund to First Western Bank & Trust upon demand and shall
bear an interest rate determined by Custodian from the date
advanced until the date of payment.
4. INSTRUCTIONS.
A. The term "instructions," as used herein, means written or oral
instructions to Custodian from a designated representative of
Fund. Certified copies of resolutions of the Board of Trustees of
Fund naming one or more designated representatives to give
instructions in the name and on behalf of Fund, may be received
and accepted from time to time by Custodian as conclusive
evidence of the authority of any designated representative to act
for Fund and may be considered to be in full force and effect
(and Custodian will be fully protected in acting in reliance
thereon) until receipt by Custodian of notice to the contrary.
Unless the resolution delegating authority to any person to give
instructions specifically requires that the approval of anyone
else will first have been obtained, Custodian will be under no
obligation to inquire into the right of the person giving such
instructions to do so. Notwithstanding any of the foregoing
provisions of this Section 4, no authorizations or instructions
received by Custodian from Fund, will be deemed to authorize or
permit any director, trustee, officer, employee, or agent of Fund
to withdraw any of the securities or similar investments of Fund
upon the mere receipt of such authorization or instruction from
such director, trustee, officer, employee or agent.
Notwithstanding any other provision of this Agreement, Custodian,
upon receipt (and acknowledgement if required at the discretion
of Custodian) of the instructions of a designated representative
of Fund will undertake to deliver for Fund's account monies
(provided such monies are on hand or available) in connection
with Fund's transactions and to wire transfer such monies to such
broker, dealer, subcustodian, bank or other agent specified in
such instructions by a designated representative of Fund.
B. No later than the next business day immediately following each
oral instruction, Fund will send Custodian written confirmation
of such oral instruction. At Custodian's sole discretion,
Custodian may record on tape, or otherwise, any oral instruction
whether given in person or via telephone, each such recording
identifying the parties, the date and the time of the beginning
and ending of such oral instruction.
5. LIMITATION OF LIABILITY OF CUSTODIAN.
A. Custodian shall hold harmless and indemnify Fund from and against
any loss or liability arising out of Custodian's negligence or
bad faith in the performance of its duties hereunder. In no
event, Custodian may request and obtain the advice and opinion of
counsel for Fund, or of its own counsel with respect to questions
or matters of law, and it shall be without liability to Fund for
any action taken or omitted by it in good faith, in conformity
with such advice or opinion. If Custodian reasonably believes
that it could not prudently act according to the instructions of
the Fund or the Fund's counsel, it may in its discretion, with
notice to the Fund, not act according to such instructions.
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B. Custodian may rely upon the advice of Fund and upon statements of
Fund's or and other person believed by, it in good faith, to be
expert in matters upon which they are consulted, and Custodian
shall not be liable for any actions taken, in good faith, upon
such statements.
C. If Fund requires Custodian in any capacity to take, with respect
to any securities, any action which involves the payment of money
by it, or which in Custodian's opinion might make it or its
nominee liable for payment of monies or in any other way,
Custodian, upon notice of Fund given prior to such actions, shall
be and be kept indemnified by Fund in an amount and form
satisfactory to Custodian against any liability on account of
such action.
D. Custodian shall be entitled to receive, and Fund agrees to pay to
Custodian, on demand, reimbursement for such cash disbursements,
costs and expenses as may be agreed upon from time to time by
Custodian and Fund.
E. Custodian shall be protected in acting as custodian hereunder
upon any instructions, advice, notice, request, consent,
certificate or other instrument or paper reasonably appearing to
it to be genuine and to have been properly executed and shall,
unless otherwise specifically provided herein, be entitled to
receive as conclusive proof of any fact or matter required to be
ascertained from Fund hereunder, a certificate signed by the
Fund's President, or other officer specifically authorized for
such purpose.
F. Without limiting the generality of the foregoing, Custodian shall
be under no duty or obligation to inquire into, and shall not be
liable for:
1. The validity of the issue of any securities purchased by or
for Fund, the legality of the purchase thereof or evidence of
ownership required by Fund to be received by Custodian, or
the propriety of the decision to purchase or amount paid
therefor;
2. The legality of the sale of any securities by or for Fund, or
the propriety of the amount for which the same are sold;
3. The legality of the issue or sale of any Beneficial Interest
of Fund, or the sufficiency of the amount to be received
therefor;
4. The legality of the repurchase or redemption of any shares of
Beneficial Interest of, or the propriety of the amount to be
paid therefor; or
5. The legality of the declaration of any dividend by Fund, or
the legality of the issue of any shares of Beneficial
Interest of Fund in payment of any stock dividend.
G. Custodian shall not be liable for, or considered to be Custodian
of, any money represented by any check, draft, wire transfer,
clearing house funds, uncollected funds, or instrument for the
payment of money received by it on behalf of Fund, until
Custodian actually receives such money, provided only that it
shall advise Fund promptly if it fails to receive any such money
in the ordinary course of business, and use its best efforts and
cooperate with Fund toward the end that such money shall be
received.
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H. Custodian shall not be responsible for loss occasioned by the
acts, neglects, defaults or insolvency of any broker, bank, trust
company, or any other person with whom Custodian may deal in the
absence of negligence, or bad faith on the part of Custodian.
I. Notwithstanding anything herein to the contrary, Custodian may,
and with respect to any foreign subcustodians appointed under
Section 3.S.2 must, provide Fund for its approval, agreements
with banks or trust companies which will act as subcustodians for
Fund pursuant to Section 3.S. of this agreement.
6. COMPENSATION. Fund will pay to Custodian such compensation as is
stated in the Fee Schedule attached hereto which may be changed from
time to time as agreed to in writing by Custodian and Fund. Custodian
may charge such compensation against monies held by it for the account
of Fund. Custodian will also be entitled, notwithstanding the
provisions of Section 5.C. or 5.D. hereof, to charge against any
monies held by it for the account of Fund the amount of any loss,
damage, liability, advance, or expense for which it shall be entitled
to reimbursement under the provisions of this Agreement including fees
or expenses due to First Western Bank & Trust for other services
provided to the Fund by Custodian. Custodian will not be entitled to
reimbursement by Fund for any loss or expenses of any subcustodian.
7. Termination. Either party to this Agreement may terminate the same by
notice in writing, delivered or mailed, postage prepaid, to the other
party hereto and received not less than ninety (90) days prior to the
date upon which such termination will take effect. Upon termination of
this Agreement, Fund will pay to Custodian such compensation for its
reimbursable disbursements, costs and expenses paid or incurred to
such date and Fund will use its best efforts to obtain a successor
custodian. Unless the holders of a majority of the outstanding shares
of Beneficial Interest vote to have the securities, funds and other
properties held under this Agreement delivered and paid over to some
other person, firm or corporation specified in the vote, having not
less than Two Million Dollars ($2,000,000) aggregate capital, surplus
and undivided profits, as shown by its last published report, and
meeting such other qualifications for custodian as set forth in the
Bylaws of Fund, the Board of Trustees of Fund will, forthwith upon
giving or receiving notice of termination of this Agreement, appoint
as successor custodian a bank or trust company having such
qualifications. Custodian will, upon termination of this Agreement,
deliver to the successor custodian so specified or appointed, at
Custodian's office, all securities then held by Custodian hereunder,
duly endorsed and in from for transfer, all funds and other properties
of Fund deposited with or held by Custodian hereunder, or will
cooperate in effecting changes in book-entries at the Depository Trust
Company or in the Treasury/Federal Reserve Book-Entry System pursuant
to 31 CFR Sec. 306.118. In the event no such vote has been adopted by
the holder of shares of Beneficial Interest of Fund and no written
order designating a successor custodian has been delivered to
Custodian on or before the date when such termination becomes
effective, then Custodian will deliver the securities, funds and
properties of Fund to a bank or trust company at the selection of
Custodian and meeting the qualifications for custodian, if any, set
forth in the Bylaws of Fund and having not less than Two Million
Dollars ($2,000,000) aggregate capital, surplus and undivided profits,
as shown by its last published report. Upon either such delivery to a
successor custodian, Custodian will have no further obligations or
liabilities under this Agreement. Thereafter such bank or trust
company will be the successor custodian under this Agreement and will
be entitled to reasonable compensation for its services. In the event
that no such successor custodian can be found, Fund will submit to its
shareholders,
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before permitting deliver of the cash and securities owned by Fund to
anyone other than a successor custodian, the question of whether Fund
will be liquidated or function without a custodian. Notwithstanding
the foregoing requirement as to delivery upon termination of this
Agreement, Custodian may make any other delivery of the securities,
funds and property of Fund which is permitted by the Investment
Company Act of 1940, Fund's Deed of Trust and Bylaws then in effect or
apply to a court of competent jurisdiction for the appointment of a
successor custodian.
8. NOTICES. Notices, requests, instructions and other writings received
by Fund at 0 Xxxxx Xxxx, Xxxxx, Xxxxx Xxxxxx 00000, or at such other
address as Fund may have designated to Custodian in writing, will be
deemed to have been properly given to Fund hereunder; and notices,
requests, instructions and other writings received by Custodian at its
offices at 000 Xxxxx Xxxxxxxx, Xxxxx, Xxxxx Xxxxxx 00000, or to such
other address as it may have designated to Fund in writing, will be
deemed to have been properly given to Custodian hereunder.
9. MISCELLANEOUS.
A. This Agreement is executed and delivered in the State of North
Dakota and shall be governed by the laws of said state.
B. All other terms and provisions of this Agreement shall be binding
upon, inure to the benefit of, and be enforceable by the
respective successor and assigns of the parties hereto.
C. No provisions of the Agreement may be amended or modified, in any
manner except by a written agreement properly authorized and
executed by both parties hereto.
D. The captions in this Agreement are included for convenience of
reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or
effect.
E. This Agreement shall become effective on the 31st day of May,
1996.
F. This Agreement may be executed simultaneously in two or more
counterparts, each of which will be deemed an original but all of
which together will constitute one and the same instrument.
G. If any part, term or provision of this Agreement is by the courts
held to be illegal, in conflict with any law or otherwise
invalid, the remaining portion or portions shall be considered
severable and not be affected, and the rights and obligations of
the parties shall be construed and enforced as if the Agreement
did not contain the particular part, term or provision held to be
illegal or invalid.
H. This Agreement may not be assigned by either party without prior
written consent of the other party.
I. If any provision of the Agreement, either in its present form or
as amended from time to time, limits, qualifies or conflicts with
the Investment Company Act of 1940 and the rules and regulations
promulgated thereunder, such statutes, rules and regulations
shall be deemed to control and superseded such provision without
nullifying or terminating the remainder of the provisions of this
Agreement.
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J. Custodian will not release the identity of Fund to an issuer
which requests such information pursuant to the Shareholder Communications Act
of 1985 for the specific purpose of direct communications between such issuer
and Fund unless the Fund directs the Custodian otherwise.
K. A copy of the Declaration of Trust of the Fund is on file with
the Secretary of the Commonwealth of Massachusetts and notice is hereby given
that the Agreement has been executed on behalf of Fund by the undersigned
officer of Fund in his/her capacity as an officer of Fund. The obligations of
this Agreement shall only be binding upon the assets and property of Fund and
shall not be binding upon any Trustee, officer or shareholder of Fund
individually.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective duly authorized officers.
FIRST WESTERN BANK & TRUST
By:
-----------------------
ATTEST:
------------------------
XXXXXX MANAGED PORTFOLIOS
By:
-----------------------
President
ATTEST:
------------------------
15
FEE SCHEDULE
CUSTODIAN CHARGES
FIRST WESTERN BANK & TRUST
Montana Tax-Free Fund, Inc., Integrity Fund of Funds, Inc., Xxxxxx Managed
Portfolios, and any other mutual funds for which ND Money Management, Inc., or
Xxxxxx Capital Corporation serves as investment adviser (hereinafter referred to
as the "Funds") shall compensate First Western Bank & Trust ("Custodian") for
services rendered pursuant to the Custodian Agreements entered into with each of
the Funds as follows:
For the period beginning May 10, 1996, and ending May 31, 1996, and monthly
thereafter, the Funds shall pay the Custodian a fee at the annual rate of .00015
of the first one hundred million dollars ($100,000,000) of combined net assets
of the Funds and .00010 of any combined net assets in excess of one hundred
million dollars ($100,000,000); provided, however, that the Funds shall pay the
Custodian a minimum monthly fee of five hundred dollars ($500).
By way of example only, if the Funds had combined net assets of ten million
dollars ($10,000,000) on May 31, 1996, the fee for the month of May would be
$500 (.00015 x $10,000,000 = $1,500 / 12 = $125, so the minimum monthly fee of
$500 would apply). If the combined net assets of the Funds on May 31 were one
hundred million dollars ($100,000,000), the fee for the month of May would be
$1,250 (.00015 x $100,000,000 / 12 = $1,250). If the combined net assets of the
Fund on May 31 were one hundred fifty million dollars ($150,000,000), the fee
for the month of May would be $1,666.67 (.00015 x $100,000,000 = $15,000 +
.00010 x $50,000,000 = $5,000 = $20,000 / 12 = $1,666.67).
The Custodian shall compute the fee payable pursuant to the Fee Schedule
and provide each of the Funds with detailed bills showing their proportionate
share of the fee as soon as practicable after the end of each calendar month.
The Funds shall each promptly pay the Custodian their proportionate share of the
fee.
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We, Xxxxxx X. Xxxxxxx and Xxxxx X. Xxxxx, President and Secretary,
respectively, of Xxxxxx Managed Portfolios, (the "Fund"), a Massachusetts
business trust, do hereby certify that the following individuals have been duly
authorized as Authorized Persons to give Oral Instructions and Written
Instructions on behalf of the Fund, and the signatures set forth opposite their
respective names are their true and correct signatures:
Name Signature
Xxxxxx X. Xxxxxxx ---------------------------------------
W. Xxx Xxxxxx ---------------------------------------
Xxxxx X. Xxxxx ---------------------------------------
Xxxxxxx X. Xxxxx ---------------------------------------
---------------------------------------
Xxxxxx X. Xxxxxxx
President
---------------------------------------
Xxxxx X. Xxxxx
Secretary
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