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Exhibit (g)
CUSTODY AGREEMENT
This agreement (the "Agreement") is entered into as of the 12th
day of October, 1998, by and between Dow Target Variable Fund LLC (the
"Company"), an open-end management investment company organized under the laws
of the State of Ohio and having its office at Xxx Xxxxxxxxx Xxx, Xxxxxxxxxx,
Xxxx 00000 acting for and on behalf of its various investment portfolios (the
"Funds"), which are operated and maintained by the Company for the benefit of
the owners of interests of each Fund, and Star Bank, N.A. (the "Custodian"), a
national banking association having its principal office and place of business
at Star Bank Center, 000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000.
WHEREAS, the Company and the Custodian desire to enter into
this Agreement to provide for the custody and safekeeping of the assets of the
Funds as required by the Investment Company Act of 1940, as amended (the "Act").
WHEREAS, the Company hereby appoints the Custodian as
custodian of all the Funds' securities and moneys at any time owned by the Funds
during the term of this Agreement (the "Fund Assets'").
WHEREAS, the Custodian hereby accepts such appointment as Custodian and
agrees to perform the duties thereof as hereinafter set forth.
THEREFORE, in consideration of the mutual promises hereinafter set
forth, the Company and the Custodian agree as follows:
ARTICLE I
Definitions
The following words and phrases, when used in this Agreement, unless
the context otherwise requires, shall have the following meanings:
Authorized Person - the President, Secretary, Treasurer, or Vice
President of the Company, or any other person, whether or not any such person is
an officer or employee of the Company, duly authorized by the Board Of Managers
of the Company to give Oral Instructions and Written Instructions on behalf of
the Funds, and listed in the Certificate annexed hereto as Appendix A, or such
other Certificate as may be received by the Custodian from time to time.
Book-Entry System - the Federal Reserve Bank book-entry system for
United States Treasury securities and federal agency securities.
Depository - The Depository Trust Company ("DTC"), a limited purpose
trust company, its successor(s) and its nominee(s), or any other person or
clearing agent.
Dividend and Transfer Agent - the dividend and transfer agent
appointed, from time to time, pursuant to a written agreement between the
dividend and transfer agent and the Company.
Money Market Security - debt obligations issued or guaranteed as to
principal and/or interest by the government of the United States or agencies or
instrumentalities thereof, commercial paper, obligations (including certificates
of deposit, bankers' acceptances, repurchase agreements and reverse repurchase
agreements with respect to the same), and time deposits of domestic banks and
thrift institutions whose deposits are insured by the
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Federal Deposit Insurance Corporation, and short-term corporate obligations
where the purchase and sale of such securities normally require settlement in
federal funds or their equivalent on the same day as such purchase and sale, all
of which mature in not more than thirteen (13) months.
Officers - the President, Secretary, Treasurer and Vice Presidents of
the Company listed in the Certificate annexed hereto as Appendix A, or such
other Certificate as may be received by the Custodian from time to time.
Oral Instructions - verbal instructions received by the
Custodian from an Authorized Person (or from a person that the Custodian
reasonably believes in good faith to be an Authorized Person) and confirmed by
Written Instructions in such a manner that such Written Instructions are
received by the Custodian on the business day immediately following receipt of
such Oral Instructions.
Prospectus - the Company's then currently effective prospectus and
Statement of Additional Information, as filed with the Securities and Exchange
Commission and effective from time to time.
Security or Securities - Money Market Securities, common stock,
preferred stock, options, financial futures, bonds, notes, debentures, corporate
debt securities, mortgages, 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 interest therein, or any
property or assets.
Written Instructions - communication received in writing by the
Custodian from an Authorized Person.
ARTICLE II
Documents and Notices to be Furnished by the Company
A The following documents, including any amendments thereto, will be
provided contemporaneously with the execution of the Agreement, to the Custodian
by the Company:
1. A copy of the Articles of Organization of the Company, as amended
and supplemented, certified by the Secretary.
2. A copy of the Operating Agreement of the Company , as amended,
certified by the Secretary.
3. A copy of the resolution of the Board Of Managers of the Company
appointing the Custodian, certified by the Secretary.
4. A copy of the then current Prospectus.
5. A Certificate of the President and Secretary of the Company setting
forth the names and signatures of the Officers.
B. The Company agrees to notify the Custodian in writing of the
appointment of any Dividend and Transfer Agent.
ARTICLE III
Receipt of Fund Assets
A. During the term of this Agreement, the Company will deliver or cause
to be delivered to the Custodian all moneys constituting Fund Assets. The
Custodian shall be entitled to reverse
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any deposits made on a Fund's behalf where such deposits have been entered and
moneys are not finally collected within 30 days of the making of such entry.
B. During the term of this Agreement, the Company will deliver or cause
to be delivered to the Custodian all Securities constituting Fund Assets. The
Custodian will not have any duties or responsibilities with respect to such
Securities until actually received by the Custodian.
C. As and when received, the Custodian shall deposit to the respective
accounts of each of the Funds any and all payments for shares of each Fund
issued or sold from time to time as they are received from the Fund's
distributor or Dividend and Transfer Agent or from a Fund itself.
ARTICLE IV
Disbursement of Fund Assets
A. The Company shall furnish to the Custodian a copy of the resolution
of the Board of Managers of the Company, certified by the Company's Secretary,
either (i) setting forth the date of the declaration of any dividend or
distribution in respect of shares of each Fund, the date of payment thereof, the
record date as of which owners of Fund interests entitled to payment shall be
determined, the amount payable per unit to owners of Fund interests of record as
of that date, and the total amount to be paid by the Dividend and Transfer Agent
on the payment date, or (ii) authorizing the declaration of dividends and
distributions in respect of interests of the Fund on a daily or other periodic
basis and authorizing the Custodian to rely on a Certificate setting forth the
date of the declaration of any such dividend or distribution, the date of
payment thereof, the record date as of which owners of Fund interests entitled
to payment shall be determined, the amount payable per interest to owners of
Fund interests of record as of that date, and the total amount to be paid by the
Dividend and Transfer Agent on the payment date.
On the payment date specified in such resolution or Certificate
described above, the Custodian shall segregate such amounts from moneys held for
the account of the Fund so that they are available for such payment.
B. Upon receipt of Written Instructions so directing it, the Custodian
shall segregate amounts necessary for the payment of redemption proceeds to be
made by the Dividend and Transfer Agent from moneys held for the accounts of the
Funds so that they are available for such payment.
C. Upon receipt of a Certificate directing payment and setting forth
the name and address of the person to whom such payment is to be made, the
amount of such payment, and the purpose for which payment is to be made, the
Custodian shall disburse amounts as and when directed from the Fund Assets. The
Custodian is authorized to rely on such directions and shall be under no
obligation to inquire as to the propriety of such directions.
D. Upon receipt of a Certificate directing payment, the Custodian shall
disburse moneys from the Fund Assets in payment of the Custodian's fees and
expenses as provided in Article VIII hereof.
ARTICLE V
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Custody of Fund Assets
A. The Custodian shall open and maintain a separate bank account or
accounts in the United States in the name of each Fund, subject only to draft or
order by the Custodian acting pursuant to the terms of this Agreement, and shall
hold all cash received by it from or for the account of each Fund, other than
cash maintained by that Fund in a bank account established and used by the Fund
in accordance with Rule 17f-3 under the Act. Moneys held by the Custodian on
behalf of a Fund may be deposited by the Custodian to its credit as Custodian in
the banking department of the Custodian. Such moneys shall be deposited by the
Custodian in its capacity as such, and shall be withdrawable by the Custodian
only in such capacity.
B. The Custodian shall hold all Securities delivered to it in
safekeeping in a separate account or accounts maintained at Star Bank, N.A. for
the benefit of each respective Fund.
C. All Securities held which are issued or issuable only in bearer
form, shall be held by the Custodian in that form; all other Securities held for
a Fund shall be registered in the name of the Custodian or its nominee. The
Company agrees to furnish to the Custodian appropriate instruments to enable the
Custodian to hold, or deliver in proper form for transfer, any Securities that
it may hold for the accounts of the Funds and which may, from time to time, be
registered in the name of each Fund.
D. With respect to all Securities held for the Funds, the Custodian
shall on a timely basis (concerning items 1 and 2 below, as defined in the
Custodian's Standards of Service Guide, as amended from time to time, annexed
hereto as Appendix C):
1.) Collect all income due and payable with respect to such
Securities;
2.) Present for payment and collect amounts payable upon all
Securities which may mature or be called, redeemed, or retired, or otherwise
become payable;
3.) Surrender Securities in temporary form for definitive
Securities; and
4.) Execute, as agent, any necessary declarations or
certificates of ownership under the Federal income tax laws or the laws or
regulations of any other taxing authority, including any foreign taxing
authority, now or hereafter in effect.
E. Upon receipt of a Certificate and not otherwise, the Custodian
shall:
1.) Execute and deliver to such persons as may be designated
in such Certificate proxies, consents, authorizations, and any other instruments
whereby the authority of the Funds as beneficial owners of any Securities may be
exercised;
2.) Deliver any Securities in exchange for other Securities or
cash issued or paid in connection with the liquidation, reorganization,
refinancing, merger, consolidation, or recapitalization of any trust, or the
exercise of any conversion privilege;
3.) Deliver any Securities to any protective committee,
reorganization committee, or other person in connection with the reorganization,
refinancing, merger, consolidation, recapitalization, or sale of assets of any
trust, and receive and hold under the terms of this Agreement
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such certificates of deposit, interim receipts or other instruments or documents
as may be issued to it to evidence such delivery;
4.) Make such transfers or exchanges of Fund Assets and take
such other steps as shall be stated in said Certificate to be for the purpose of
effectuating any duly authorized plan of liquidation, reorganization, merger,
consolidation or recapitalization of the Company or one or more Funds; and
5.) Deliver any Securities held for a Fund to the depository
agent for tender or other similar offers.
F. The Custodian shall promptly deliver to the Company all notices,
proxy material and executed but unvoted proxies pertaining to members' meetings
of Securities held by the Funds. The Custodian shall not vote or authorize the
voting of any Securities or give any consent, waiver or approval with respect
thereto unless so directed by a Certificate or Written Instruction.
G. The Custodian shall promptly deliver to the Company all information
received by the Custodian and pertaining to Securities held by the Funds with
respect to tender or exchange offers, calls for redemption or purchase, or
expiration of rights.
ARTICLE VI
Purchase and Sale of Securities
A. Promptly after each purchase of Securities by a Fund, the Company
shall deliver to the Custodian (i) with respect to each purchase of Securities
which are not Money Market Securities, Written Instructions, and (ii) with
respect to each purchase of Money Market Securities, Written Instructions or
Oral Instructions, specifying with respect to each such purchase the:
1.) name of the issuer and the title of the Securities,
2.) principal amount purchased and accrued interest, if any,
3.) date of purchase and settlement,
4.) purchase price per unit,
5.) total amount payable, and
6.) name of the person from whom, or the broker through which,
the purchase was made.
The Custodian shall, against receipt of Securities purchased by or for a Fund,
pay out of the Fund Assets the total amount payable to the person from whom or
the broker through which the purchase was made, provided that the same conforms
to the total amount payable as set forth in such Written Instructions or Oral
Instructions, as the case may be.
B. Promptly after each sale of Securities by a Fund, the Company shall
deliver to the Custodian (i) with respect to each sale of Securities which are
not Money Market Securities, Written Instructions, and (ii) with respect to each
sale of Money Market Securities, Written Instructions or Oral Instructions,
specifying with respect to each such sale the:
1.) name of the issuer and the title of the Securities,
2.) principal amount sold and accrued interest, if any,
3.) date of sale and settlement,
4.) sale price per unit,
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5.) total amount receivable, and
6.) name of the person to whom, or the broker through which,
the sale was made.
The Custodian shall deliver the Securities against receipt of the total amount
receivable, provided that the same conforms to the total amount receivable as
set forth in such Written Instructions or Oral Instructions, as the case may be.
C. On contractual settlement date, the account of each Fund will be
charged for all purchased Securities settling on that day, regardless of whether
or not delivery is made. Likewise, on contractual settlement date, proceeds from
the sale of Securities settling that day will be credited to the account of each
Fund, irrespective of delivery.
D. Purchases and sales of Securities effected by the Custodian will be
made on a delivery versus payment basis. The Custodian may, in its sole
discretion, upon receipt of a Certificate, elect to settle a purchase or sale
transaction in some other manner, but only upon receipt of acceptable
indemnification from the Company.
E. The Custodian shall, upon receipt of Written Instructions so
directing it, establish and maintain a segregated account or accounts for and on
behalf of each Fund. Cash and/or Securities may be transferred into such account
or accounts for specific purposes, to-wit:
1.) in accordance with the provision of any agreement among
the Company, the Custodian, and a broker-dealer registered under the Securities
and Exchange Act of 1934, as amended, and also a member of the National
Association of Securities Dealers (NASD) (or any futures commission merchant
registered under the Commodity Exchange Act), relating to compliance with the
rules of the Options Clearing Corporation and of any registered national
securities exchange, the Commodity Futures Trading Commission, any registered
contract market, or any similar organization or organizations requiring escrow
or other similar arrangements in connection with transactions by the Fund;
2.) for purposes of segregating cash or government securities
in connection with options purchased, sold, or written by the Fund or commodity
futures contracts or options thereon purchased or sold by the Fund;
3.) for the purpose of compliance by the Fund with the
procedures required for reverse repurchase agreements, firm commitment
agreements, standby commitment agreements, and short sales by Act Release No.
10666, or any subsequent release or releases or rule of the Securities and
Exchange Commission relating to the maintenance of segregated accounts by
registered investment companies; and
4.) for other corporate purposes, only in the case of this
clause 4 upon receipt of a copy of a resolution of the Board Of Managers of the
Company, certified by its Secretary, setting forth the purposes of such
segregated account.
F. Except as otherwise may be agreed upon by the parties hereto, the
Custodian shall not be required to comply with any Written Instructions to
settle the purchase of any Securities on behalf of a Fund unless there is
sufficient cash in that Fund's account at the time or to settle the sale of any
Securities from the account unless such Securities are in deliverable form.
Notwithstanding the foregoing, if the purchase price of such Securities exceeds
the amount of cash in the account at the time of such purchase, the Custodian
may, in its sole discretion, advance the amount of the difference in order to
settle the purchase of such Securities. The amount of
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any such advance shall be deemed a loan from the Custodian to the Fund payable
on demand and bearing interest accruing from the date such loan is made up to
but not including the date such loan is repaid at a rate per annum customarily
charged by the Custodian on similar loans.
ARTICLE VII
Fund Indebtedness
In connection with any borrowings by a Fund, the Fund will cause to be
delivered to the Custodian by a bank or broker requiring Securities as
collateral for such borrowings (including the Custodian if the borrowing is from
the Custodian), a notice or undertaking in the form currently employed by such
bank or broker setting forth the amount of collateral. The Fund shall promptly
deliver to the Custodian a Certificate specifying with respect to each such
borrowing: (a) the name of the bank or broker, (b) the amount and terms of the
borrowing, which may be set forth by incorporating by reference an attached
promissory note duly endorsed by the Company on behalf of the Fund, or a loan
agreement, (c) the date, and time if known, on which the loan is to be entered
into, (d) the date on which the loan becomes due and payable, (e) the total
amount payable to the Fund on the borrowing date, and (f) the description of the
Securities securing the loan, including the name of the issuer, the title and
the number of shares or the principal amount. The Custodian shall deliver on the
borrowing date specified in the Certificate the required collateral against the
lender's delivery of the total loan amount then payable, provided that the same
conforms to that which is described in the Certificate. The Custodian shall
deliver, in the manner directed by the Company, such Securities as additional
collateral, as may be specified in a Certificate, to secure further any
transaction described in this Article VII. The Company shall cause all
Securities released from collateral status to be returned directly to the
Custodian and the Custodian shall receive from time to time such return of
collateral as may be tendered to it.
The Custodian may, at the option of the lender, keep such
collateral in its possession, subject to all rights therein given to the lender
because of the loan. The Custodian may require such reasonable conditions
regarding such collateral and its dealings with third-party lenders as it may
deem appropriate.
ARTICLE VIII
Concerning the Custodian
A. Except as otherwise provided herein, the Custodian shall not be
liable for any loss or damage resulting from its action or omission to act or
otherwise, except for any such loss or damage arising out of its own negligence
or willful misconduct. The Company shall defend, indemnify and hold harmless the
Custodian and its directors, officers, employees and agents with respect to any
loss, claim, liability or cost (including reasonable attorneys' fees) arising or
alleged to arise from or relating to the Company's duties hereunder or any other
action or inaction of the Company or its Managers, officers, employees or
agents, except such as may arise from the negligent action, omission, willful
misconduct or breach of
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this Agreement by the Custodian. The provisions under this paragraph shall
survive the termination of this Agreement.
B. Without limiting the generality of the foregoing, the Custodian,
acting in the capacity of Custodian hereunder, shall be under no obligation to
inquire into, and shall not be liable for:
1.) The validity of the issue of any Securities purchased by
or for the account of a Fund, the legality of the purchase thereof, or the
propriety of the amount paid therefor;
2.) The legality of the sale of any Securities by or for the
account of a Fund, or the propriety of the amount for which the same are sold;
3.) The legality of the issue or sale of any interests of a
Fund, or the sufficiency of the amount to be received therefor;
4.) The legality of the redemption of any interests of a Fund,
or the propriety of the amount to be paid therefor;
5.) The legality of the declaration or payment of any dividend
by a Fund in respect of interests of the Fund;
6.) The legality of any borrowing by a Fund on behalf of a
Fund, using Securities as collateral.
C. The Custodian shall not be under any duty or obligation to take
action to effect collection of any amount due to a Fund from any Dividend and
Transfer Agent of the Fund nor to take any action to effect payment or
distribution by any Dividend and Transfer Agent of the Fund of any amount paid
by the Custodian to any Dividend and Transfer Agent of the Fund in accordance
with this Agreement.
D. Notwithstanding Section D of Article V, the Custodian shall not be
under any duty or obligation to take action to effect collection of any amount,
if the Securities upon which such amount is payable are in default, or if
payment is refused after due demand or presentation, unless and until (i) it
shall be directed to take such action by a Certificate and (ii) it shall be
assured to its satisfaction (including prepayment thereof) of reimbursement of
its costs and expenses in connection with any such action.
E. The Company acknowledges and hereby authorizes the Custodian to
hold Securities through its various agents described in Appendix B annexed
hereto. The Company hereby represents that such authorization has been duly
approved by the Board Of Managers of the Company as required by the Act. The
Custodian acknowledges that although certain Fund Assets are held by its agents,
the Custodian remains primarily liable for the safekeeping of the Fund Assets.
In addition, the Company acknowledges that the Custodian may appoint
one or more financial institutions, as agent or agents or as
sub-custodian or sub-custodians for the purpose of holding Securities and moneys
at any time owned by the Funds. The Custodian shall not be relieved of any
obligation or liability under this Agreement in connection with the appointment
or activities of such agents or sub-custodians. Any such agent or sub-custodian
shall be qualified to serve as such for assets of investment companies
registered under the Act. Upon request, the Custodian shall promptly forward to
the Company any documents it receives from any agent or sub-custodian appointed
hereunder which may assist trustees of registered investment companies fulfill
their responsibilities under Rule 17f-5 of the Act.
F. The Custodian shall not be under any duty or obligation
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to ascertain whether any Securities at any time delivered to or held by it for
the account of a Fund are such as properly may be held by that Fund under the
provisions of the Articles of Organization and the Company's Operating
Agreement.
G. The Custodian shall treat all records and other information relating
to the Funds and Fund Assets as confidential and shall not disclose any such
records or information to any other person unless (i) the Company shall have
consented thereto in writing or (ii) such disclosure is required by law.
H. The Custodian shall be entitled to receive and the Company agrees to
pay to the Custodian such compensation as shall be determined pursuant to
Appendix D attached hereto, or as shall be determined pursuant to amendments to
such Appendix D. The Custodian shall be entitled to charge against any money
held by it for the account of each Fund, the amount of any of its fees, any
loss, damage, liability or expense, including counsel fees related to that Fund.
The expenses which the Custodian may charge against the account of a Fund
include, but are not limited to, the expenses of agents or sub-custodians
incurred in settling transactions involving the purchase and sale of Securities
of that Fund.
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I. The Custodian shall be entitled to rely upon any Oral Instructions
and any Written Instructions. The Company agrees to forward to the Custodian
Written Instructions confirming Oral Instructions in such a manner so that such
Written Instructions are received by the Custodian, whether by hand delivery,
facsimile or otherwise, on the same business day on which such Oral Instructions
were given. The Company agrees that the failure of the Custodian to receive such
confirming instructions shall in no way affect the validity of the transactions
or enforceability of the transactions hereby authorized by the Company. The
Company agrees that the Custodian shall incur no liability to the Company for
acting upon Oral Instructions given to the Custodian hereunder concerning such
transactions.
J. The Custodian will (i) set up and maintain proper books of account
and complete records of all transactions in the accounts maintained by the
Custodian hereunder in such manner as will meet the obligations of the Company
under the Act, with particular attention to Section 31 thereof and Rules 31a-1
and 31a-2 thereunder and those records are the property of the Company, and (ii)
preserve for the periods prescribed by applicable Federal statute or regulation
all records required to be so preserved. All such books and records shall be the
property of the Company, and shall be open to inspection and audit at reasonable
times and with prior notice by Officers and auditors employed by the Company.
K. The Custodian shall send to the Company any report received on the
systems of internal accounting control of the Custodian, or its agents or
sub-custodians, as the Company may reasonably request from time to time.
L. The Custodian performs only the services of a custodian and shall
have no responsibility for the management, investment or reinvestment of the
Securities from time to time owned by the Funds. The Custodian is not a selling
agent for interests of the Funds and performance of its duties as custodian
shall not be deemed to be a recommendation to the Company's members or others of
interests of the Funds as an investment.
M. The Custodian shall take all reasonable action, that the Company may
from time to time request, to assist the Company in obtaining favorable opinions
from the Company's independent accountants, with respect to the Custodian's
activities hereunder, in connection with the preparation of the Company's Form
N-1A, Form N-SAR, or other reports to the Securities and Exchange Commission.
N. The Company hereby pledges to and grants the Custodian a security
interest in any Fund Assets to secure the payment of any liabilities of the
Company to the Custodian, whether acting in its capacity as Custodian or
otherwise, or on account of money borrowed from the Custodian. This pledge is in
addition to any other pledge of collateral by the Company to the Custodian.
ARTICLE X
Termination
A. Either of the parties hereto may terminate this Agreement for any
reason by giving to the other party a notice in writing specifying the date of
such termination, which shall be not less than ninety (90) days after the date
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of giving of such notice. If such notice is given by the Company, it shall be
accompanied by a copy of a resolution of the Board Of Managers of the Company,
certified by the Secretary of the Company, electing to terminate this Agreement
and designating a successor custodian or custodians. In the event such notice is
given by the Custodian, the Company shall, on or before the termination date,
deliver to the Custodian a copy of a resolution of the Board Of Managers of the
Company, certified by the Secretary, designating a successor custodian or
custodians to act on behalf of the Company. In the absence of such designation
by the Company, the Custodian may designate a successor custodian which shall be
a bank or trust company having not less than $100,000,000 aggregate capital,
surplus, and undivided profits. Upon the date set forth in such notice this
Agreement shall terminate, and the Custodian, provided that it has received a
notice of acceptance by the successor custodian, shall deliver, on that date,
directly to the successor custodian all Securities and moneys then owned by the
Company and held by it as Custodian. Upon termination of this Agreement, the
Company shall pay to the Custodian on behalf of the Funds such compensation as
may be due as of the date of such termination. The Company agrees on behalf of
the Funds that the Custodian shall be reimbursed for its reasonable costs in
connection with the termination of this Agreement.
B. If a successor custodian is not designated by the Company, or by the
Custodian in accordance with the preceding paragraph, or the designated
successor cannot or will not serve, the Company shall, upon the delivery by the
Custodian to the Funds of all Securities (other than Securities held in the
Book-Entry System which cannot be delivered to the Funds) and moneys then owned
by the Funds, be deemed to be the custodian for the Funds, and the Custodian
shall thereby be relieved of all duties and responsibilities pursuant to this
Agreement, other than the duty with respect to Securities held in the Book-Entry
System, which cannot be delivered to the Funds, which shall be held by the
Custodian in accordance with this Agreement.
ARTICLE XI
MISCELLANEOUS
A. Appendix A sets forth the names and the signatures of all Authorized
Persons, as certified by the Secretary of the Company. The Company agrees to
furnish to the Custodian a new Appendix A in form similar to the attached
Appendix A, if any present Authorized Person ceases to be an Authorized Person
or if any other or additional Authorized Persons are elected or appointed. Until
such new Appendix A shall be received, the Custodian shall be fully protected in
acting under the provisions of this Agreement upon Oral Instructions or
signatures of the then current Authorized Persons as set forth in the last
delivered Appendix A.
B. No recourse under any obligation of this Agreement or for any claim
based thereon shall be had against any organizer, member, Officer, Manager,
past, present or future as such, of the Company or of any predecessor or
successor, either directly or through the Fund or any such predecessor or
successor, whether by virtue of any constitution, statute or rule of law or
equity, or be the enforcement of any assessment or penalty or otherwise; it
being expressly agreed and understood that this Agreement and the obligations
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thereunder are enforceable solely against the Company, and that no such personal
liability whatever shall attach to, or is or shall be incurred by, the
organizers, members, Officers, Managers of the Company or of any predecessor or
successor, or any of them as such. To the extent that any such liability exists,
it is hereby expressly waived and released by the Custodian as a condition of,
and as a consideration for, the execution of this Agreement.
C. The obligations set forth in this Agreement as having been made by
the Company have been made by the Board Of Managers, acting as such Directors
for and on behalf of the Funds, pursuant to the authority vested in them under
the laws of the State of Ohio, the Articles of Organization and the Operating
Agreement of the Company. This Agreement has been executed by Officers of the
Company as officers, and not individually, and the obligations contained herein
are not binding upon any of the Managers, Officers, agents or owners of
interests, personally, but bind only the Company.
D. Provisions of the Prospectus and any other documents (including
advertising material) specifically mentioning the Custodian (other than merely
by name and address) shall be reviewed with the Custodian by the Company prior
to publication and/or dissemination or distribution, and shall be subject to the
consent of the Custodian.
E. Any notice or other instrument in writing, authorized or required by
this Agreement to be given to the Custodian, shall be sufficiently given if
addressed to the Custodian and mailed or delivered to it at its offices at Star
Bank Center, 000 Xxxxxx Xxxxxx, X. X. 0000, Xxxxxxxxxx, Xxxx 00000, attention
Mutual Fund Custody Department, or at such other place as the Custodian may from
time to time designate in writing.
F. Any notice or other instrument in writing, authorized or required by
this Agreement to be given to the Company shall be sufficiently given when
delivered to the Fund or on the second business day following the time such
notice is deposited in the U.S. mail postage prepaid and addressed to the
Company at its office at Xxx Xxxxxxxxx Xxx, Xxxxxxxxxx, Xxxx 00000 or at such
other place as the Company may from time to time designate in writing.
G. This Agreement, with the exception of the Appendices, may not be
amended or modified in any manner except by a written agreement executed by both
parties with the same formality as this Agreement, and authorized and approved
by a resolution of the Board of Managers of the Company.
H. This Agreement shall extend to and shall be binding upon the parties
hereto, and their respective successors and assigns; provided, however, that
this Agreement shall not be assignable by the Company or by the Custodian, and
no attempted assignment by the Company or the Custodian shall be effective
without the written consent of the other party hereto.
I. This Agreement shall be construed in accordance with the laws of the
State of Ohio.
J. This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original, but such counterparts shall,
together, constitute only one instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective Officers, thereunto duly authorized as of the day
and year first above written.
13
ATTEST: Ohio National Fund, Inc.
By:
Title:
ATTEST: Star Bank, N.A.
By:
Title:
APPENDIX A
Authorized Persons Specimen Signatures
President: Xxxx X. Xxxxxx
Secretary: Xxxxxx X. Xxxxxxxx
Treasurer: Xxxxxx X. Xxxxx
Vice President Xxxxxx X. Xxxxxxxxx
Vice President: Xxxxxx X. Xxxx
Vice President: Xxxxxxx X. Xxxxxxxx
14
Vice President: Xxxxxxx X. Xxxxxxxx
Adviser Employees: B. Xxxxxxx Xxxxxxx
Xxx X. Xxxxxx
Xxxxx X. Xxxxxx
Xxxxxxx Xxxxx
Xxxxx Xxxxxx
Transfer Agent/Fund Accountant
Employees:
APPENDIX B
The following agents are employed currently by Star Bank, N.A. for
securities processing and control . . .
The Depository Trust Company (New York)
0 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
The Federal Reserve Bank
Cincinnati and Cleveland Branches
15
Bankers Trust Company
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
(For Foreign Securities and certain non-DTC
eligible Securities)
Appendix C
Standards of Service Guide
APPENDIX D
Dow Target Variable Fund LLC
Schedule of Compensation
Star Bank, N.A., as Custodian, will receive monthly compensation for services
according to the terms of the following Schedule:
I. Market Value Fee
Based upon an annual rate of:
Xxxxxxx
.0000 (0 Xxxxx Xxxxxx) on First $100
.0003 (3 Basis Points) on First $ 50
.0002 (2 Basis Points) on Next $ 50
.00015 (1.5 Basis Points) on Balance
II. Monthly Minimum Fee-Per Fund
$400.00
III. Out-of-Pocket Expenses
The only out-of-pocket expenses charged to your account will be
shipping fees or transfer fees.
IV. XXX Documents
Per Shareholder/year to hold each XXX Document
$8.00
V. Earnings Credits
On a monthly basis any earnings credits generated from uninvested
custody balances will be applied against any cash management service fees
generated. Earnings credits are based on the average yield on the 91 day U.S.
Treasury Xxxx for the preceding thirteen weeks less the 10% reserve.
16
Star Bank, N.A.
Third Party Access Compensation Schedule
Dow Target Variable Fund LLC
Third Party access is available within two (2) weeks and
requires dial-up software which will allow your organization to access their
Star Bank accounts from any location.
Requirements and Expenses: Cost
One time client expense for software $250.00 (waived)
purchased from SEI which includes internal password control and ability to dial
a local IBM Information Systems number (Generally anywhere in the continental
U.S.A.)
Ongoing Expenses:
Telephone Connect Time (local Access only) $0.37/minute
*Long distance rates (if applicable) will be determined pursuant to the
rates charged by client's long distance carrier.
APPENDIX D
Schedule of Compensation Continued
Services Unit Cost ($)
Monthly Cost ($)
D.D.A. Account Maintenance 14.00
Deposits .399
Deposited Items .109
Checks Paid .159
Balance Reporting - P.C. Access 50.00
ACH Transaction .095
ACH Monthly Maintenance 40.00
Controlled Disbursement (1st account) 110.00
Each additional account 25.00
Deposited Items Returned 6.00
International Items Returned 10.00
NSF Returned Checks 25.00
Stop Payments 22.00
Data Transmission per account 110.00
Data Capture* .10
Drafts Cleared .179
Lockbox Maintenance** 55.00
17
Services Unit Cost ($)
Monthly Cost ($)
Lockbox items Processed
with copy of check .32
without copy of check .26
Checks Printed .20
Positive Pay .06
Issued Items .015
Wires Incoming
Domestic 10.00
International 10.00
Wires Outgoing
Domestic
Repetitive 12.00
Non-Repetitive 13.00
International
Repetitive 35.00
Non-Repetitive 40.00
PC - Initiated Wires:
Domestic
Repetitive 9.00
Non-Repetitive 9.00
International
Repetitive 25.00
Non-Repetitive 25.00
----------------------------
*** Uncollected Charge Star Bank Prime Rate as of first of month plus 4%
* Price can vary depending upon what information needs to be captured
** With the use of lockbox, the collected balance in the demand deposit
account will be significantly increased and therefore earnings to offset cash
management service fees will be maximized.
*** Fees for uncollected balances are figured on the monthly average of all
combined accounts.
**** Other available cash management services are priced separately.
