CUSTODIAN AGREEMENT
AGREEMENT, entered into as of this 1st day of February, 1995,
between NBD BANK, a Michigan banking corporation, having its principal
office and place of business at 000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000
(hereinafter called the "Custodian"), and CRANBROOK FUNDS, a Massachusetts
business trust registered as an investment company under the Investment
Company Act of 1940, having its office at 000 Xxxxxxxxxxx Xxxxxx, 00xx
Xxxxx, Xxxxxxx, Xxxxxxxx 00000 (hereinafter called the "Fund").
W I T N E S S E T H:
WHEREAS; the shares of capital stock (Shares) of the Fund are
currently divided into two Series known as the Cranbrook Money Market Fund
and the Cranbrook Treasury Fund (each a "Series"), each of which represents
a diversified portfolio of investments,
WHEREAS, the Fund desires to appoint NBD Bank to act as the
custodian of the securities and cash of each Series,
WHEREAS, NBD Bank is willing to act as Custodian as herein set
forth,
NOW, THEREFORE, the Custodian and the Fund, on behalf of themselves
and their respective successors and assigns, hereby agree as follows:
ARTICLE I
Definitions
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
1. "Authorized Person" shall be deemed to include the
President and the Treasurer of the Fund or any other person, whether or not
any such person is an Officer or employee of the Fund, duly authorized by
the Trustees of the Fund to give Oral Instructions and Written Instructions
on behalf of the Fund 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.
2. "Book-Entry System" shall mean the Federal Reserve/Treasury
Book-Entry system for United States government and federal agency
securities, its successor or successors and its nominee or nominees.
3. "Certificate" shall mean notice, instructions or other
instrument in writing, authorized or required by this Agreement to be given
to the Custodian which is actually received by the Custodian and signed on
behalf of the Fund by any two Trustees or two Officers of the Fund or by an
Authorized Person.
4. "Depository" shall mean The Depository Trust Company
("DTC"), a clearing agency registered with the Securities and Exchange
Commission, its successor and successors and its nominee or nominees. The
term "Depository" shall further mean and include any other person authorized
to act as a depository under the Investment Company Act of 1940, its
successor or successors and its nominee or nominees.
5. "Officers" shall be deemed to include the President, any
Vice President, the Secretary, the Treasurer, any Assistant Treasurer, or
any other person or persons duly authorized by the Trustees of the Fund to
execute any Certificate, instruction, notice or other instrument on behalf
of the Fund and listed in a Certificate that may be received by the
Custodian from time to time.
6. "Oral Instructions" shall mean verbal instructions actually
received by the Custodian from an Authorized Person or from a person
reasonably believed by the Custodian to be an Authorized Person.
7. "Securities" shall be deemed to include, without
limitation, such securities in which the Fund is authorized to invest in
respect of any Series pursuant to its current prospectus.
8. "Series" means either or both, as the case may be, of the
Series into which the Shares of the Fund are currently divided.
9. "Written Instructions" shall mean written communications
actually received by the Custodian by telex or any other such system whereby
the receiver of such communications is able to verify by codes or otherwise
with a reasonable degree of certainty the authenticity of the sender of such
communication.
ARTICLE II
Appointment of Custodian
l. The Fund hereby constitutes and appoints the Custodian as
custodian of Securities and moneys owned by the Fund for the account of each
Series during the period of this Agreement.
2. The Custodian hereby accepts appointment as said custodian
and agrees to perform the duties thereof as hereinafter set forth.
ARTICLE III
Custody of Cash and Securities
1. The Fund will deliver or cause to be delivered to the
Custodian Securities and monies owned by it on behalf of each Series,
including cash received for the issuance of shares of each Series of the
Fund, during the period of this Agreement. The Custodian will not be
responsible for such Securities and such monies until actually received by
it. The Custodian will be entitled to reverse any credits made on the
Fund's behalf where such credits have been previously made and monies are
not finally collected. The Fund shall instruct the Custodian from time to
time in its sole discretion, by means of a Certificate or, in connection
with the purchase or sale of Securities, by means of Oral Instructions or a
Certificate, as to the manner in which and in what amounts such Securities
and monies are to be deposited on behalf of each Series of the Fund in the
Book-Entry System or the Depository, provided, however, that prior to the
deposit of Securities of the Fund in either the Book-Entry System or the
Depository, including a deposit in connection with the settlement of a
purchase or sale or a delivery of loan collateral, the Custodian shall have
received a certified resolution of the Trustees specifically approving such
deposits by the Custodian on behalf of the Fund in the Book-Entry System or
the Depository, or physically deposited in the vault of the Custodian, as
the case may be. Securities and funds of the Fund deposited in either the
Book-Entry System or the Depository will be represented in accounts which
include only assets held by the Custodian for customers, including but not
limited to accounts in which the Custodian acts in a fiduciary or
representative capacity.
2. The Custodian shall establish and maintain a separate
account in the name of each Series of the Fund and credit thereto all monies
received by it for the account of such Series of the Fund, and monies
credited to the separate accounts shall be disbursed by the Custodian only:
(a) In payment for Securities purchased, as provided in
Article IV hereof;
(b) In payment of dividends or distributions with
respect to the Shares, as provided in Article V hereof;
(c) In payment of original issue or other taxes with
respect to the Shares, as provided in Article VI hereof;
(d) In payment for Shares redeemed by it, as provided
in Article VI hereof;
(e) Pursuant to Certificates, or with respect to the
purchase or sale of Securities, pursuant to Oral Instructions or
Certificates, setting forth the name and address of the person to
whom the payment is to be made, the amounts to be paid, the account
from which the payment is to be made, and the purpose for which
payment is to be made; or
(f) In payment of the fees and in reimbursement of the
expenses and liabilities of the Custodian, as provided in Article
VIII hereof.
The Custodian shall maintain all cash, other than cash maintained
by the Fund in a bank account established and used in accordance with Rule
17f-3 under the Investment Company Act of 1940, of the Fund in such separate
accounts, subject only to draft or other order by the Custodian acting
pursuant to the terms of this Agreement. If and when authorized and
instructed by the Fund, the Custodian may open and maintain an additional
account or accounts in such other bank or Fund companies as may be
designated by such instructions, such account or accounts, however, to be in
the name of the Custodian in its capacity as Custodian and subject only to
its draft or order in accordance with the terms of this Agreement.
3. On each business day the Custodian shall furnish the Fund
with a written statement (i) summarizing all transactions and entries for
the account of each Series of the Fund effected the immediately preceding
business day, and (ii) confirming any purchase or sale of Securities on such
preceding business day. Where Securities are transferred to the account of
a Series of the Fund, the Custodian shall also by book entry or otherwise so
identify as belonging to the Fund and to the appropriate Series a quantity
of Securities in a fungible bulk of Securities registered in the name of the
Custodian (or its nominee) or shown on the Custodian's account on the books
of the Book-Entry System or the Depository. At least monthly, the Custodian
shall furnish the Fund with a detailed statement of the Securities and
monies held for each Series of the Fund under this Agreement.
4. All securities held for the Fund which are issued or
issuable only in bearer form, except such Securities as are held in the
Book-Entry System, shall be held by the Custodian in that form; all other
Securities held for the Fund may be registered in the name of the Fund with
designation of the appropriate Series, in the name of any duly appointed
registered nominee of the Custodian as the Custodian may from time to time
determine, or in the name of the Book-Entry System or the Depository or
their successor or successors, or their nominee or nominees, and may be held
by a sub-custodian designated by the Custodian. The Fund agrees to furnish
to the Custodian appropriate instruments to enable the Custodian to hold or
deliver in proper form for transfer, or to register in the name of its
registered nominee or in the name of the Book-Entry System or the Depository
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. The Custodian
shall hold all such Securities which are not held in the Book-Entry System
or in the Depository in a separate account in the name of the Fund with
designation of the appropriate Series physically segregated at all times
from those of any other person or persons.
5. Unless otherwise instructed to the contrary by a
Certificate, the Custodian by itself, or through the use of the Book-Entry
System or the Depository with respect to Securities therein deposited, shall
with respect to all Securities held for the Fund in accordance with this
Agreement:
(a) Collect all income due and payable;
(b) Present for payment and collect the amount payable
upon all Securities which may mature or be called, redeemed or
retired, or otherwise become payable;
(c) Surrender Securities in temporary form for
definitive Securities;
(d) Execute, as custodian, any necessary declarations
or certificates of ownership under the Federal Income Tax Laws or
the laws or regulations of any other taxing authority now or
hereafter in effect; and
(e) Receive and hold directly, or through the
Book-Entry System or the Depository for the account of the Fund all
stock dividends, rights and similar securities issued with respect
to any Securities held by the Custodian hereunder.
6. Upon receipt of a Certificate and not otherwise, the
Custodian directly or through the use of the Book-Entry System or the
Depository shall:
(a) 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 Fund as
owner of any Securities may be exercised;
(b) Deliver any Securities held for the Fund in
exchange for other Securities or cash issued or paid in connection
with the liquidation, reorganization, refinancing, merger,
consolidation or recapitalization of any corporation, or the
exercise of any conversion privilege and receive and hold hereunder
any cash or other securities received in exchange;
(c) Deliver any Securities held for the Fund to any
protective committee, reorganization committee or other person in
connection with the reorganization, refinancing, merger,
consolidation, recapitalization or sale of assets of any
corporation, and receive and hold under the terms of this Agreement
such certificates of deposit, interim receipts or other instruments
or documents as may be issued to it to evidence such delivery;
(d) Make such transfers or exchanges of the assets of
the Fund and take such other steps as shill 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 Fund.
7. The Custodian shall cooperate in the preparation of reports
to holders of shares of the Fund, to the Securities and Exchange Commission,
to State authorities and to others, in the auditing of accounts, and in
other matters of like nature.
8. Notwithstanding any other provision of this Agreement, it
is expressly understood and agreed that the Custodian is authorized to
deposit all or any part of the securities owned by the Fund in the
Book-Entry System of the Federal Reserve Banks, as provided under the
provisions of Rule l7f-4 of the Investment Company Act of 1940 as from time
to time amended.
9. Notwithstanding any other provisions of this Agreement, it
is expressly understood and agreed that the Custodian is authorized in the
performance of its duties hereunder to use the facilities of any Depository.
10. The Custodian shall calculate daily the "net income" of
each Series in a manner consistent with the Fund's governing document and in
accordance with the then current prospectus of the Fund with respect to each
Series, and shall advise the Fund and the Transfer and Dividend Disbursement
Agent of the Fund daily of the total amount of such net income.
ARTICLE IV
Purchase and Sale of Investments of the Fund
1. Promptly after each purchase of Securities by the Fund, the
Fund shall deliver or cause to be delivered to the Custodian prior to 12:00
Noon, Detroit time, a Certificate or Oral Instructions, specifying with
respect to each such purchase: (a) the name of the issuer and the title of
the Securities, (b) the number of shares or the principal amount purchased
and accrued interest, if any, (c) the date of purchase and settlement, (d)
the purchase price per unit, including accrued interest, if any (e) the
total amount payable upon such purchase, including accrued interest, if any,
and the Series the moneys of which are to be used for payment (f) the name
of the person from whom or the broker through whom the purchase was made,
(g) whether such purchase is to be settled through the Book-Entry System or
the Depository, (h) whether the Securities purchased are to be deposited in
the Book-Entry System or the Depository and (i) for which Series the
Securities were purchased. The Custodian shall upon receipt of Securities
purchased by or for the Fund pay out of the moneys held for the account of
the applicable Series of the Fund the total amount payable to the person
from whom or the broker through whom the purchase was made, provided that
the same conforms to the total amount payable as set forth in such
Certificate or Oral Instructions.
2. Promptly after each sale of Securities by the Fund, the
Fund shall deliver or cause to be delivered to the Custodian prior to 12:00
Noon, Detroit time, a Certificate or Oral Instructions, specifying with
respect to each such sale: (a) the name of the issuer and the title of the
Security, (b) the number of shares or the principal amount sold and accrued
interest, if any, and the Series for which the sale was made, (c) the date
of sale, (d) the sale price per unit, including accrued interest, if any,
(e) the total amount payable to the Fund and the Series thereof to which
payable upon such sale, including accrued interest if any, (f) the name of
the broker through whom or the person to whom the sale was made, and (g)
whether such sale is to be settled through the Book-Entry System or the
Depository. The Custodian shall deliver the Securities upon receipt of the
total amount payable to the Fund upon such sale, provided that the same
conforms to the total amount payable as set forth in such Certificate or
Oral Instructions. Subject to the foregoing, the Custodian may accept
payment in such form as shall be satisfactory to it, and may deliver
Securities and arrange for payment in accordance with the customs prevailing
among dealers in Securities.
ARTICLE V
Payment of Dividends or Distributions
1. The Fund shall furnish to the Custodian a copy of a
resolution of the Trustees of the Fund, certified by the Secretary or any
Assistant Secretary; authorizing the declaration of dividends on the Shares
of each Series on a daily basis and (i) specifying the date of the
declaration of such dividend or distribution, the record date as of which
shareholders entitled to payment shall be determined, the amount payable per
share to the shareholders of record as of that date and the total amount
payable to the Transfer Agent of the Fund on the payment date, or (ii)
authorizing the Custodian to rely on Oral Instructions or a Certificate
specifying the date of the declaration of such dividend or distribution, the
date of payment thereof, the record date as of which shareholders entitled
to payment shall be determined, the amount payable per share to the
shareholders of record as of that date and the total amount payable to the
Dividend Disbursing Agent on the payment date.
2. Upon any payment date specified in such resolution, Oral
Instructions or Certificate, the Custodian shall pay out of the moneys held
for the account of each Series of the Fund the total amount payable to the
Dividend Disbursing Agent of the Fund in respect of each Series.
ARTICLE VI
Sale and Redemption of Shares of
Beneficial Interest of the Fund
1. Whenever the Fund shall sell any Shares, it shall deliver
to the Custodian a Certificate duly specifying:
(a) The number of Shares of each Series sold, trade
date, and price; and
(b) The amount of money to be received by the Custodian
for the sale of such Shares and specifically allocated to the
separate account in the name of such Series.
2. Upon receipt of such money from the Transfer Agent of the
Fund, the Custodian shall credit such money to the separate account in the
name of the Series for which such money was received.
3. Upon issuance of any Shares of the Fund in accordance with
the foregoing provisions of this Article, the Custodian shall pay out of the
money held in the separate account in the name of the Series of the Shares
sold, all original issue or other taxes required to be paid by the Fund in
connection with such issuance upon the receipt of a Certificate specifying
the amount to be paid.
4. Except as provided hereinafter, whenever the Fund shall
hereafter redeem any Shares, it shall furnish to the Custodian a Certificate
specifying:
(a) The number of Shares of each Series redeemed; and
(b) The amount to be paid for the Shares of each Series
redeemed.
5. Upon receipt from the Transfer Agent of the Fund of an
advice setting forth the number of Shares of each Series received by the
Transfer Agent of the Fund for redemption and stating that such Shares are
valid and in good form for redemption, the Custodian shall' make payment to
the Transfer Agent out of the moneys in the separate account in the name of
the appropriate Series of the Fund for the total amount specified in the
Certificate issued pursuant to the foregoing paragraph 4 of this Article.
ARTICLE VII
Overdrafts of Indebtedness
1. If the Custodian should, by reason of clerical error or the
failure of a purchaser of Fund shares to provide available monies, advance
monies on behalf of the Fund which results in an inadvertent overdraft
because the moneys held by the Custodian in the separate account in the name
of a Series shall be insufficient to pay the total amount payable upon
purchase of Securities as set forth in a Certificate or Oral Instructions
issued pursuant to Article IV or which results in an overdraft in the
account for some other reason, or if the Fund is for any other reason
indebted to the Custodian, such overdraft or indebtedness shall be repayable
to the Custodian by the Fund on demand and shall bear interest from the date
incurred at a rate per annum (based on a 360-day year for the actual number
of days involved) equal to 1/2% over Custodian's prime commercial lending
rate in effect from-time to time, such rate to be adjusted on the effective
date of any change in such prime commercial lending rate but in no event to
be less than 6% per annum. In addition thereto the Fund agrees that the
Custodian shall have a continuing lien and security interest in and to any
property which is at any time held by it for the benefit of the relevant
Series or which is then in the Custodian's possession or control or in
possession or control of any third party acting in the Custodian's behalf.
The Fund authorizes the Custodian, in its sole discretion, at any time to
charge any such overdraft or indebtedness together with interest due thereon
against any balance of account standing to the credit of the relevant Series
on the Custodian's books.
2. The Fund will cause to be delivered to the Custodian by any
bank (excluding the Custodian) from which it borrows money for temporary or
emergency purposes using Securities as collateral for such borrowings, a
notice or undertaking in the form currently employed by any such bank
setting forth the amount which such bank will loan to the Fund against
delivery of a stated 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, (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 Fund, or other loan agreement, (c) the
time and date, if known, on which the loan is to be entered into (the
"borrowing date"), (d) the date on which the loan becomes due and payable,
(e) the total amount payable to the Fund on the borrowing date, (f) the
market value of Securities to be delivered as collateral for such loan,
including the name of the issuer, the title and the number of shares or the
principal amount of any particular Securities, (g) whether the Custodian is
to deliver such collateral through the Book-Entry System, the Depository or
a Sub-custodian, (h) the Series designation of the portfolio from which such
securities are to be delivered, and (i) a statement that such loan for
temporary or emergency purposes is in conformance with the Investment
Company Act of 1940 and the Fund's current prospectus. The Custodian shall
deliver on the borrowing date such specified collateral and the executed
promissory note, if any, against delivery by the lending bank of the total
amount of the loan payable, provided that the same conforms to the total
amount payable as set forth in the Certificate. The Custodian may, at the
option of the lending bank, keep such collateral in its possession, but such
collateral shall be subject to all rights therein given the lending bank by
virtue of any promissory note or loan agreement. The Custodian shall
deliver in the manner directed by the Fund from time to time such Securities
as additional collateral as may be specified in a Certificate to
collateralize further any transaction described in this paragraph. The Fund
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. In the event that the
Fund fails to specify in a Certificate the name of the issuer, the title and
number of shares or the principal amount of any particular Securities to be
delivered as collateral by the Custodian, the Custodian shall not be under
any obligation to deliver any Securities. Collateral returned to the
Custodian shall be held hereunder as it was prior to being used as
collateral.
ARTICLE VIII
Concerning the Custodian
1. Except as hereinafter provided, neither the Custodian nor
its nominee shall be liable for any loss or damage, including counsel fees,
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 Custodian may, with respect to questions of law, apply for and obtain
the advice and opinion of counsel to the Fund or of its own counsel at the
expense of the Fund, and shall be fully protected with respect to anything
done or omitted by it in good faith in conformity with such advice or
opinion. The Custodian shall be subject to the same liability with respect
to all securities of the Fund, and all cash, stock dividends, rights and
items of like nature to which the Fund is entitled, held or received by a
Depository as agent for the Custodian, as if the same were held or received
by the Custodian at its own offices. Anything to the contrary in this
Agreement notwithstanding, the Custodian shall not be liable to the Fund for
any loss or damage to the Fund resulting from use of the Book-Entry System
except by reason of any negligence, misfeasance or misconduct of the
Custodian (or any of its agents) or by any of its (or their) employees or
from any failure of the Custodian (or any such agent) to enforce effectively
such rights as it may have against the Book-Entry System; at the election of
the Fund, it shall be entitled to be subrogated for the Custodian in any
claim against the Book-Entry System or any other person which the Custodian
may have as a consequence of any such loss or damage if and to the extent
that the Fund has not been made whole for any such loss or damage.
2. Without limiting the generality of the foregoing, the
Custodian shall be under no obligation to inquire into, and shall not be
liable for:
(a) The validity of the issue of any Securities
purchased by or for the Fund, the legality of the purchase thereof,
or the propriety of the amount paid therefor;
(b) The legality of the sale of any Securities by or
for the Fund, or the propriety of the amount for which the same are
sold;
(c) The legality of the issue or sale of any Shares, or
the sufficiency of the amount to be received therefor;
(d) The legality of the redemption of any Shares, or
the propriety of the amount to be paid therefor;
(e) The legality of the declaration or payment of any
dividend by the Fund; or
(f) The legality of any borrowing by the Fund using
Securities as collateral.
3. The Custodian shall not be liable for, or considered to be
the Custodian of, any money, whether or not represented by any check, draft,
or other instrument for the payment of money, received by it on behalf of
the Fund until the Custodian actually receives and collects such money
directly or by the final crediting of the account representing the Fund's
interest at the Book-Entry System or the Depository.
4. 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 of reimbursement of its costs and expenses in connection with
any such action.
5. The Custodian may appoint one or more banking institutions
as Depository or depositories or as Sub-custodian or Sub-custodians,
including, but not limited to, banking institutions located in foreign
countries, of Securities and moneys at any time owned by the Fund, upon
terms and conditions approved by the Fund.
6. The Custodian shall not be under any duty or obligation to
ascertain whether any Securities at any time delivered to or held by it for
the account of the Fund are such as properly may be held by the Fund and
under the provisions of its Declaration of Trust.
7. The Custodian shall be entitled to receive and the Fund
agrees to pay to the Custodian such compensation and expenses as may be
agreed upon from time to time between the Custodian and the Fund, which
compensation initially shall be as set out in Appendix B hereto. The
Custodian may charge against any moneys such compensation with respect to
the Fund and any expenses with respect to the Fund incurred by the Custodian
in the performance of its duties pursuant to such agreement. The Custodian
shall also be entitled to charge against any money held by it, the amount of
any loss, damage, liability or expense incurred with respect to the Fund,
including counsel fees, for which it shall be entitled to reimbursement
under the provisions of this Agreement. The expenses which the Custodian
may charge against the account of the Fund include, but are not limited to,
the expenses and liabilities of any Sub-custodian which the Custodian may be
required to pay or reimburse, and expenses of foreign branches of the
Custodian incurred in settling outside of Detroit transactions involving the
purchase and sale of Securities.
8. The Custodian shall be entitled to rely upon any
Certificate, notice or other instrument in writing received by the Custodian
and reasonably believed by the Custodian to be genuine and to be signed by
two Officers of the Fund or by an Authorized Person. The Custodian shall be
entitled to rely upon any Oral Instructions actually received by the
Custodian pursuant to Articles III, IV and V hereof and reasonably believed
by the Custodian to be genuine and to be given by an Authorized Person. The
Fund agrees to forward to the Custodian Written Instructions from an
Authorized Person confirming such Oral Instructions in such manner so that
such Written Instructions are received by the Custodian, whether by hand
delivery, telex or otherwise, by the close of business of the same day that
such Oral Instructions are given to the Custodian. The Fund agrees that the
fact that such confirming instructions are not received by the Custodian
shall in no way affect the validity of the transactions or enforceability of
the transactions hereby authorized by the Fund. The Fund agrees that the
Custodian shall incur no liability to the Fund in acting upon Oral
Instructions given to the Custodian hereunder concerning such transactions
provided such instructions reasonably appear to have been received from an
Authorized Person.
9. The Custodian shall maintain all records relating to its
activities and obligations under this Agreement consistent with the
provisions of the Investment Company Act of 1940, particularly Section 31
thereof and Rules 31a-1 and 31a-2 thereunder, and such records shall be
available to enable the Fund to report information required on Form N-1A,
N-SAR, applicable tax returns and any other law or administrative reporting
rules or procedures which may be applicable to the Fund. All records
maintained by the Custodian in connection with the performance of its duties
under this Agreement will remain the property of the Fund and in the event
of termination of this Agreement will be delivered to the Fund or to the
successor custodian.
10. The Custodian shall provide the Fund with any report
obtained by the Custodian on the system of internal accounting control of
the Book-Entry System or the Depository and with such reports on its own
systems of internal accounting control as the Fund may reasonably request
from time to time.
11. The Fund, its successors and assigns, shall at all times
fully indemnify and save harmless the Custodian, and its successors and
assigns, from any liability or expense whatsoever, including attorney's
fees, which may arise in connection with this Agreement, except for the
failure of the Custodian to perform the things to be done by it under this
Agreement. The Custodian may, with respect to questions of law, apply for
and obtain the advice and opinion of counsel to the Fund or of its own
counsel, at the expense of the Fund, and shall be fully protected with
respect to anything done or omitted by it in good faith in conformity with
such advice or opinion.
ARTICLE IX
Termination
1. Either of the parties hereto may terminate this Agreement
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 of
giving of such notice. In the event such notice is given by the Fund, it
shall be accompanied by a copy of a resolution of the Trustees, certified by
the Secretary or any Assistant Secretary, electing to terminate this
Agreement and designating a successor custodian or custodians, each of which
shall be a bank or Fund company having not less than $100,000,000 aggregate
capital, surplus and undivided profits. In the event such notice is given
by the Custodian, the Fund shall, on or before the termination date, deliver
to the Custodian a copy of a resolution of the Trustees, certified by the
Secretary or any Assistant Secretary, designating a successor custodian or
custodians.
In the absence of such designation by the Fund, the Custodian may
designate a successor custodian which shall be a bank or Fund company having
not less than $100,000,000 aggregate capital, surplus, and undivided
profits. If the Fund fails to designate a successor custodian, or if the
Custodian shall fail to designate a successor custodian, the Fund shall upon
the date specified in the notice of termination of this Agreement and upon
the delivery by the Custodian of all Securities and moneys then owned by the
Fund be deemed to be its own custodian and the Custodian shalt thereby be
relieved of all duties and responsibilities pursuant to this Agreement.
2. Upon the date set forth in such notice, this Agreement
shall terminate, and the Custodian shall upon receipt of a notice of
acceptance by the successor custodian on that date deliver directly to the
successor custodian all Securities and funds then owned by the Fund and held
by it as Custodian, after deducting all fees, expenses and other amounts for
the payment or reimbursement of which it shall then be entitled.
ARTICLE X
Miscellaneous
1. Annexed hereto as Appendix A is a Certificate signed by two
of the present Officers or Trustees of the Fund, setting forth the names and
the signatures of each Officer of the Fund and each Authorized Person. The
Fund agrees to furnish to the Custodian a new Certificate in similar form in
the event that any such present Authorized Person ceases to be an Authorized
Person or in the event that other or additional Authorized Persons are
elected or appointed. Until such new Certificate shall be received, the
Custodian shall be fully protected in acting under the provisions of this
Agreement upon Oral Instructions or signatures of the present Authorized
Persons as set forth in the last delivered Certificate.
2. 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 000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, or at
such other place as the Custodian may from time to time designate in
writing.
3. Any notice or other instrument in writing, authorized or
required by this Agreement to be given to the Fund shall be sufficiently
given if addressed to the Fund and mailed or delivered to it at its office
at 000 Xxxxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, or at such
other place as the Fund may from time to time designate in writing.
4. This Agreement 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 Trustees.
5. 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 Fund without the
written consent of the Custodian, or by the Custodian without the written
consent of the Fund, authorized or approved by a resolution of the Trustees.
6. This Agreement shall be construed in accordance with the
laws of the State of Michigan.
7. 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.
8. The Declaration of Trust establishing Cranbrook Funds,
dated November 30, 1994, a copy of which, together with all amendments
thereto (the "Declaration"), is on file in the office of the Secretary of
the Commonwealth of Massachusetts, provides that the name "Cranbrook Funds"
refers to the Trustees under the Declaration collectively as Trustees, but
not as individuals or personally; and no Trustee, shareholder, officer,
employee or agent of Cranbrook Funds shall be held to any personal
liability, nor shall resort be had to their private property for the
satisfaction of any obligation or claim or otherwise in connection with the
affairs of said Cranbrook Funds, but the Trust Estate only shall be liable.
9. If any party responsible for supplying information to the
Bank fails to furnish records and/or data or such records or data are
illegible, incorrect or incomplete, the Bank will not be responsible for
inaccurate reports resulting therefrom.
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.
Attest: CRANBROOK FUNDS
By: /S/ XXXXXX X. XXXXX
Attest: NBD BANK
/S/ XXXXXX X. POPLAR By: /S/ XXXXXXX X. XXXXX
APPENDIX A
CERTIFICATE
The undersigned Trustee of Cranbrook Funds hereby certify that the
following persons are the Officers of the Fund and are Authorized Persons,
as defined in the foregoing Custodian Agreement:
Name (and title, if any) Signature
OFFICERS:
Xxxxxx X. Xxxxx /S/ XXXXXX X. XXXXX
President
Xxxxxxx X. Xxxxxxx /S/ XXXXXXX X. XXXXXXX
Treasurer/Secretary
AUTHORIZED PERSONS:
Xxxxx Xxxxxx /S/ XXXXX XXXXXX
Xxxxx X. Xxxxx /S/ XXXXX X. XXXXX
Xxxxxxx Xxxxx /S/ X. XXXXX
Xxxxxxxxxxx Xxxxxx /S/ XXXXXXXXXXX XXXXXX
IN WITNESS WHEREOF we have set our hands.
Trustee
Trustee
APPENDIX B
Fee schedule for the services provided by NBD Bank as Custodian to Cranbrook
Funds. Fees will be billed to the Fund on a monthly basis.
Basic Account Fee: $2,400 per annum ($200 per month).
Market Value Fee: $0.0001 per million dollars of assets
under custody, calculated at the end of
each month.
Transaction Fee: $20.00 per buy or sell processed through the
custodial system of the Custodian during each
month.
Such reasonable out-of-pocket expenses that are mutually agreeable among the
parties.
