AMENDED AND RESTATED
CUSTODY AGREEMENT
This AGREEMENT, is made and entered into as of this 13th day of
November, 2000, by and between the Chaconia Income & Growth Fund, Inc. (the
"Corporation"), a corporation organized under the laws of the Maryland, and
FIRSTAR BANK, N.A., a national banking association (the "Custodian") and
replaces the Custody Agreement dated the __ day of October 1996.
W I T N E S S E T H:
WHEREAS, the Corporation is an open-end management investment company
registered under the Investment Company Act of 1940, as amended (the "1940
Act"); and
WHEREAS, the Corporation is authorized to create separate series, each
with its own separate investment portfolio; and
WHEREAS, the Corporation desires that the securities and cash of each
portfolio (each, the "Fund") and each additional series of the Corporation
listed on Exhibit C attached hereto, as may be amended from time to time, shall
be hereafter held and administered by Custodian pursuant to the terms of this
Agreement.
WHEREAS, the Corporation desires that the Fund's Securities and cash be
held and administered by the Custodian pursuant to this Agreement; and
WHEREAS, the Custodian represents that it is a bank having the
qualifications prescribed in Section 26(a)(i) of the 1940 Act;
NOW, THEREFORE, in consideration of the mutual agreements herein made,
the Corporation and the Custodian 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:
1.1 "AUTHORIZED PERSON" means any Officer or other person duly
authorized by resolution of the Board of Directors to give
Oral Instructions and Written Instructions on behalf of the
Fund and named in Exhibit A hereto or in such resolutions of
the Board of Directors, certified by an Officer, as may be
received by the Custodian from time to time.
1.2 "BOARD OF DIRECTORS" shall mean the Directors from time to
time serving under the Corporation's Articles of
Incorporation, as from time to time amended.
1.3 "BOOK-ENTRY SYSTEM" shall mean a federal book-entry system as
provided in Subpart O of Treasury Circular Xx. 000, 00 XXX
306, in Subpart B of 31 CFR Part 350, or in such book-entry
regulations of federal agencies as are substantially in the
form of such Subpart O.
1.4 "BUSINESS DAY" shall mean any day recognized as a settlement
day by The New York Stock Exchange, Inc. and any other day
for which the Corporation computes the net asset value of
Shares of the Fund.
1.5 "FUND CUSTODY ACCOUNT" shall mean any of the accounts in the
name of the Corporation, which is provided for in Section 3.2
below.
1.6 "NASD" shall mean The National Association of Securities
Dealers, Inc.
1.7 "OFFICER" shall mean the Chairman, President, any Vice
President, any Assistant Vice President, the Secretary, any
Assistant Secretary, the Treasurer, or any Assistant Treasurer
of the Corporation.
1.8 "ORAL INSTRUCTIONS" shall mean instructions orally transmitted
to and accepted by the Custodian because such instructions
are: (i) reasonably believed by the Custodian to have been
given by an Authorized Person, (ii) recorded and kept among
the records of the Custodian made in the ordinary course of
business and (iii) orally confirmed by the Custodian. The
Corporation shall cause all Oral Instructions to be confirmed
by Written Instructions prior to the end of the next Business
Day. If such Written Instructions confirming Oral
Instructions are not received by the Custodian prior to a
transaction, it shall in no way affect the validity of the
transaction or the authorization thereof by the Corporation.
If Oral Instructions vary from the Written Instructions which
purport to confirm them, the Custodian shall notify the
Corporation of such variance but such Oral Instructions will
govern unless the Custodian has not yet acted.
1.9 "PROPER INSTRUCTIONS" shall mean Oral Instructions or
Written Instructions. Proper Instructions may be continuing
Written Instructions when deemed appropriate by both parties.
1.10 "SECURITIES DEPOSITORY" shall mean The Depository Trust
Company and (provided that Custodian shall have received a
copy of a resolution of the Board of Directors, certified by
an Officer, specifically approving the use of such clearing
agency as a depository for the Fund) any other clearing agency
registered with the Securities and Exchange Commission under
Section 17A of the Securities and Exchange Act of 1934 as
amended (the "1934 Act"), which acts as a system for the
central handling of Securities where all Securities of any
particular class or series of an issuer deposited within the
system are treated as fungible and may be transferred or
pledged by bookkeeping entry without physical delivery of the
Securities.
1.11 "SECURITIES" shall include, without limitation, common and
preferred stocks, bonds, call options, put options,
debentures, notes, bank certificates of deposit, bankers'
acceptances, mortgage-backed securities or other obligations,
and any certificates, receipts, warrants or other instruments
or documents representing rights to receive, purchase or
subscribe for the same, or evidencing or representing any
other rights or interests therein, or any similar property or
assets that the Custodian has the facilities to clear and to
service.
1.12 "SHARES" shall mean, with respect to a Fund, the units of
beneficial interest issued by the Corporation on account of
the Fund.
1.13 "SUB-CUSTODIAN" shall mean and include (i) any branch of a
"U.S. Bank," as that term is defined in Rule 17f-5 under the
1940 Act, (ii) any "Eligible Foreign Custodian," as that term
is defined in Rule 17f-5 under the 1940 Act, having a contract
with the Custodian which the Custodian has determined will
provide reasonable care of assets of the Fund based on the
standards specified in Section 3.3 below. Such contract shall
include provisions that provide: (i) for indemnification or
insurance arrangements (or any combination of the foregoing)
such that the Fund will be adequately protected against the
risk of loss of assets held in accordance with such contract;
(ii) that the Fund's assets will not be subject to any right,
charge, security interest, lien or claim of any kind in favor
of the Sub-Custodian or its creditors except a claim of
payment for their safe custody or administration, in the case
of cash deposits, liens or rights in favor of creditors of the
Sub-Custodian arising under bankruptcy, insolvency, or similar
laws; (iii) that beneficial ownership for the Fund's assets
will be freely transferable without the payment of money or
value other than for safe custody or administration; (iv) that
adequate records will be maintained identifying the assets as
belonging to the Fund or as being held by a third party for
the benefit of the Fund; (v) that the Fund's independent
public accountants will be given access to those records or
confirmation of the contents of those records; and (vi) that
the Fund will receive periodic reports with respect to the
safekeeping of the Fund's assets, including, but not limited
to, notification of any transfer to or from a Fund's account
or a third party account containing assets held for the
benefit of the Fund. Such contract may contain, in lieu of any
or all of the provisions specified above, such other
provisions that the Custodian determines will provide, in
their entirety, the same or a greater level of care and
protection for Fund assets as the specified provisions, in
their entirety.
1.14 "WRITTEN INSTRUCTIONS" shall mean (i) written communications
actually received by the Custodian and signed by an Authorized
Person, or (ii) communications by telex or any other such
system from one or more persons reasonably believed by the
Custodian to be Authorized Persons, or (iii) communications
between electro-mechanical or electronic devices provided that
the use of such devices and the procedures for the use thereof
shall have been approved by resolutions of the Board of
Directors, a copy of which, certified by an Officer, shall
have been delivered to the Custodian.
ARTICLE II
APPOINTMENT OF CUSTODIAN
2.1 APPOINTMENT. The Corporation hereby constitutes and appoints
the Custodian as custodian of all Securities and cash owned by
or in the possession of the Fund at any time during the period
of this Agreement.
2.2 ACCEPTANCE. The Custodian hereby accepts appointment as such
custodian and agrees to perform the duties thereof as
hereinafter set forth.
2.3 DOCUMENTS TO BE FURNISHED. The following documents, including
any amendments thereto, will be provided contemporaneously
with the execution of the Agreement to the Custodian by the
Corporation:
(a) A copy of the Articles of Incorporation
certified by the Secretary;
(b) A copy of the Bylaws of the Corporation
certified by the Secretary;
(c) A copy of the resolution of the Board of
Directors of the Corporation
appointing the Custodian, certified by the
Secretary;
(d) A copy of the then current Prospectus of the
Fund; and
(e) A certification of the Chairman and
Secretary of the Corporation setting forth
the names and signatures of the current
Officers of the Corporation and other
Authorized Persons.
2.4 NOTICE OF APPOINTMENT OF DIVIDEND AND TRANSFER AGENT. The
Corporation agrees to notify the Custodian in writing of the
appointment, termination or change in appointment of any
Dividend and Transfer Agent of the Fund.
ARTICLE III
CUSTODY OF CASH AND SECURITIES
3.1 SEGREGATION. All Securities and non-cash property held by the
Custodian for the account of the Fund (other than Securities
maintained in a Securities Depository or Book-Entry System)
shall be physically segregated from other Securities and
non-cash property in the possession of the Custodian
(including the Securities and non-cash property of the other
series of the Corporation) and shall be identified as subject
to this Agreement.
3.2 FUND CUSTODY ACCOUNTS. As to each Fund, the Custodian shall
open and maintain in its trust department a custody account in
the name of the Corporation coupled with the name of the Fund,
subject only to draft or order of the Custodian, in which the
Custodian shall enter and carry all Securities, cash and other
assets of such Fund which are delivered to it.
3.3 APPOINTMENT OF AGENTS. (a) In its discretion, the Custodian
may appoint one or more Sub-Custodians to act as Securities
Depositories or as sub-custodians to hold Securities and cash
of the Fund and to carry out such other provisions of this
Agreement as it may determine, provided, however, that the
appointment of any such agents and maintenance of any
Securities and cash of the Fund shall be at the Custodian's
expense and shall not relieve the Custodian of any of its
obligations or liabilities under this Agreement.
(b) If, after the initial approval of Sub-Custodians by the Board
of Directors in connection with this Agreement, the Custodian
wishes to appoint other Sub-Custodians to hold property of the
Fund, it will so notify the Corporation and provide it with
information reasonably necessary to determine any such new
Sub-Custodian's eligibility under Rule 17f-5 under the 1940
Act, including a copy of the proposed agreement with such
Sub-Custodian. The Corporation shall at the meeting of the
Board of Directors next following receipt of such notice and
information give a written approval or disapproval of the
proposed action.
(c) The Agreement between the Custodian and each Sub-Custodian
acting hereunder shall contain the required provisions set
forth in Rule 17f-5(a)(1)(iii).
(d) At the end of each calendar quarter, the Custodian shall
provide written reports notifying the Board of Directors of
the placement of the Securities and cash of the Fund with a
particular Sub-Custodian and of any material changes in the
Fund's arrangements. The Custodian shall promptly take such
steps as may be required to withdraw assets of the Fund from
any Sub-Custodian that has ceased to meet the requirements of
Rule 17f-5 under the 1940 Act.
(e) With respect to its responsibilities under this Section 3.3,
the Custodian hereby warrants to the Corporation that it
agrees to exercise reasonable care, prudence and diligence
such as a person having responsibility for the safekeeping of
property of the Fund. The Custodian further warrants that a
Fund's assets will be subject to reasonable care, based on the
standards applicable to custodians in the relevant market, if
maintained with each Sub-Custodian, after considering all
factors relevant to the safekeeping of such assets, including,
without limitation: (i) the Sub-Custodian's practices,
procedures, and internal controls, for certificated securities
(if applicable), the method of keeping custodial records, and
the security and data protection practices; (ii) whether the
Sub-Custodian has the requisite financial strength to provide
reasonable care for Fund assets; (iii) the Sub-Custodian's
general reputation and standing and, in the case of a
Securities Depository, the Securities Depository's operating
history and number of participants; and (iv) whether the Fund
will have jurisdiction over and be able to enforce judgments
against the Sub-Custodian, such as by virtue of the existence
of any offices of the Sub-Custodian in the United States or
the Sub-Custodian's consent to service of process in the
United States.
(f) The Custodian shall establish a system to monitor the
appropriateness of maintaining the Fund's assets with a
particular Sub-Custodian and the contract governing the Fund's
arrangements with such Sub-Custodian.
3.4 DELIVERY OF ASSETS TO CUSTODIAN. The Corporation shall
deliver, or cause to be delivered, to the Custodian all of the
Fund's Securities, cash and other assets, including (a) all
payments of income, payments of principal and capital
distributions received by the Fund with respect to such
Securities, cash or other assets owned by the Fund at any time
during the period of this Agreement, and (b) all cash received
by the Fund for the issuance, at any time during such period,
of Shares. The Custodian shall not be responsible for such
Securities, cash or other assets until actually received by
it.
3.5 SECURITIES DEPOSITORIES AND BOOK-ENTRY SYSTEMS. The Custodian
may deposit and/or maintain Securities of the Fund in a
Securities Depository or in a Book-Entry System, subject to
the following provisions:
(a) Prior to a deposit of Securities of the Fund in any Securities
Depository or Book-Entry System, the Corporation shall deliver
to the Custodian a resolution of the Board of Directors,
certified by an Officer, authorizing and instructing the
Custodian on an on-going basis to deposit in such Securities
Depository or Book-Entry System all Securities eligible for
deposit therein and to make use of such Securities Depository
or Book-Entry System to the extent possible and practical in
connection with its performance hereunder, including, without
limitation, in connection with settlements of purchases and
sales of Securities, loans of Securities, and deliveries and
returns of collateral consisting of Securities.
(b) Securities of the Fund kept in a Book-Entry System or
Securities Depository shall be kept in an account ("Depository
Account") of the Custodian in such Book-Entry System or
Securities Depository which includes only assets held by the
Custodian as a fiduciary, custodian or otherwise for
customers.
(c) The records of the Custodian with respect to Securities of the
Fund maintained in a Book-Entry System or Securities
Depository shall, by book-entry, identify such Securities as
belonging to the Fund.
(d) If Securities purchased by the Fund are to be held in a
Book-Entry System or Securities Depository, the Custodian
shall pay for such Securities upon (i) receipt of advice from
the Book-Entry System or Securities Depository that such
Securities have been transferred to the Depository Account,
and (ii) the making of an entry on the records of the
Custodian to reflect such payment and transfer for the account
of the Fund. If Securities sold by the Fund are held in a
Book-Entry System or Securities Depository, the Custodian
shall transfer such Securities upon (i) receipt of advice from
the Book-Entry System or Securities Depository that payment
for such Securities has been transferred to the Depository
Account, and (ii) the making of an entry on the records
of the Custodian to reflect such transfer and payment for the
account of the Fund.
(e) The Custodian shall provide the Corporation with copies of any
report (obtained by the Custodian from a Book-Entry System or
Securities Depository in which Securities of the Fund are
kept) on the internal accounting controls and procedures for
safeguarding Securities deposited in such Book-Entry System or
Securities Depository.
(f) Anything to the contrary in this Agreement notwithstanding,
the Custodian shall be liable to the Corporation for any loss
or damage to the Fund resulting (i) from the use of a
Book-Entry System or Securities Depository by reason of any
negligence or willful misconduct on the part of Custodian or
any Sub-Custodian appointed pursuant to Section 3.3 above or
any of its or their employees, or (ii) from failure of
Custodian or any such Sub-Custodian to enforce effectively
such rights as it may have against a Book-Entry System or
Securities Depository. At its election, the Corporation shall
be subrogated to the rights of the Custodian with respect to
any claim against a Book-Entry System or Securities Depository
or any other person from any loss or damage to the Fund
arising from the use of such Book-Entry System or Securities
Depository, if and to the extent that the Fund has not been
made whole for any such loss or damage.
3.6 DISBURSEMENT OF MONEYS FROM FUND CUSTODY ACCOUNT. Upon
receipt of Proper Instructions, the Custodian shall disburse
moneys from the Fund Custody Account but only in the
following cases:
(a) For the purchase of Securities for the Fund but only in
accordance with Section 4.1 of this Agreement and only (i) in
the case of Securities (other than options on Securities,
futures contracts and options on futures contracts), against
the delivery to the Custodian (or any Sub-Custodian appointed
pursuant to Section 3.3 above) of such Securities registered
as provided in Section 3.9 below or in proper form for
transfer, or if the purchase of such Securities is effected
through a Book-Entry System or Securities Depository, in
accordance with the conditions set forth in Section 3.5 above;
(ii) in the case of options on Securities, against delivery to
the Custodian (or such Sub-Custodian) of such receipts as are
required by the customs prevailing among dealers in such
options; (iii) in the case of futures contracts and options on
futures contracts, against delivery to the Custodian (or such
Sub-Custodian) of evidence of title thereto in favor of the
Fund or any nominee referred to in Section 3.9 below;
and (iv) in the case of repurchase or reverse repurchase
agreements entered into between the Corporation and a bank
which is a member of the Federal Reserve System or between the
Corporation and a primary dealer in U.S. Government
securities, against delivery of the purchased Securities
either in certificate form or through an entry crediting the
Custodian's account at a Book-Entry System or Securities
Depository with such Securities;
(b) In connection with the conversion, exchange or surrender, as
set forth in Section 3.7(f) below, of Securities owned by the
Fund;
(c) For the payment of any dividends or capital gain distributions
declared by the Fund;
(d) In payment of the redemption price of Shares as provided in
Section 5.1 below;
(e) For the payment of any expense or liability incurred by the
Fund, including but not limited to the following payments for
the account of the Fund: interest; taxes; administration,
investment advisory, accounting, auditing, transfer agent,
custodian, director and legal fees; and other operating
expenses of the Fund; in all cases, whether or not such
expenses are to be in whole or in part capitalized or
treated as deferred expenses;
(f) For transfer in accordance with the provisions of any
agreement among the Corporation, the Custodian and a
broker-dealer registered under the 1934 Act and a member of
the NASD, relating to compliance with rules of The Options
Clearing Corporation and of any registered national securities
exchange (or of any similar organization or organizations)
regarding escrow or other arrangements in connection with
transactions by the Fund;
(g) For transfer in accordance with the provision of any
agreement among the Corporation, the Custodian, and a
futures commission merchant registered under the Commodity
Exchange Act, relating to compliance with the rules of the
Commodity Futures Trading Commission and/or any contract
market (or any similar organization or organizations)
regarding account deposits in connection with transactions by
the Fund;
(h) For the funding of any uncertificated time deposit or
other interest-bearing account with any banking institution
(including the Custodian), which deposit or account has a term
of one year or less; and
(i) For any other proper purpose, but only upon receipt,
in addition to Proper Instructions, of a copy of a resolution
of the Board of Directors, certified by an Officer, specifying
the amount and purpose of such payment, declaring such purpose
to be a proper corporate purpose, and naming the person or
persons to whom such payment is to be made.
3.7 DELIVERY OF SECURITIES FROM FUND CUSTODY ACCOUNT. Upon
receipt of Proper Instructions, the Custodian shall release
and deliver Securities from the Fund Custody Account but only
in the following cases:
(a) Upon the sale of Securities for the account of the Fund but
only against receipt of payment therefor in cash, by certified
or cashiers check or bank credit;
(b) In the case of a sale effected through a Book-Entry System or
Securities Depository, in accordance with the provisions of
Section 3.5 above;
(c) To an offeror's depository agent in connection with tender or
other similar offers for Securities of the Fund; provided
that, in any such case, the cash or other consideration is to
be delivered to the Custodian;
(d) To the issuer thereof or its agent (i) for transfer into the
name of the Fund, the Custodian or any Sub-Custodian appointed
pursuant to Section 3.3 above, or of any nominee or nominees
of any of the foregoing, or (ii) for exchange for a different
number of certificates or other evidence representing the same
aggregate face amount or number of units; provided that, in
any such case, the new Securities are to be delivered to the
Custodian;
(e) To the broker selling Securities, for examination in
accordance with the "street delivery" custom;
(f) For exchange or conversion pursuant to any plan or merger,
consolidation, recapitalization, reorganization or
readjustment of the issuer of such Securities, or pursuant to
provisions for conversion contained in such Securities, or
pursuant to any deposit agreement, including surrender or
receipt of underlying Securities in connection with the
issuance or cancellation of depository receipts; provided
that, in any such case, the new Securities and cash, if any,
are to be delivered to the Custodian;
(g) Upon receipt of payment therefor pursuant to any repurchase or
reverse repurchase agreement entered into by the Fund;
(h) In the case of warrants, rights or similar Securities, upon
the exercise thereof, provided that, in any such case, the new
Securities and cash, if any, are to be delivered to the
Custodian;
(i) For delivery in connection with any loans of Securities of the
Fund, but only against receipt of such collateral as the
Corporation shall have specified to the Custodian in Proper
Instructions;
(j) For delivery as security in connection with any borrowings by
the Fund requiring a pledge of assets by the Corporation, but
only against receipt by the Custodian of the amounts borrowed;
(k) Pursuant to any authorized plan of liquidation,
reorganization, merger, consolidation or recapitalization of
the Corporation;
(l) For delivery in accordance with the provisions of any
agreement among the Corporation, the Custodian and a
broker-dealer registered under the 1934 Act and a member of
the NASD, relating to compliance with the rules of The Options
Clearing Corporation and of any registered national securities
exchange (or of any similar organization or organizations)
regarding escrow or other arrangements in connection with
transactions by the Fund;
(m) For delivery in accordance with the provisions of any
agreement among the Corporation, the Custodian, and a
futures commission merchant registered under the Commodity
Exchange Act, relating to compliance with the rules of the
Commodity Futures Trading Commission and/or any contract
market (or any similar organization or organizations)
regarding account deposits in connection with transactions by
the Fund; or
(n) For any other proper corporate purpose, but only upon receipt,
in addition to Proper Instructions, of a copy of a resolution
of the Board of Directors, certified by an Officer, specifying
the Securities to be delivered, setting forth the purpose for
which such delivery is to be made, declaring such purpose
to be a proper corporate purpose, and naming the person or
persons to whom delivery of such Securities shall be made.
3.8 ACTIONS NOT REQUIRING PROPER INSTRUCTIONS. Unless otherwise
instructed by the Corporation, the Custodian shall with
respect to all Securities held for the Fund:
(a) Subject to Section 7.4 below, collect on a timely basis all
income and other payments to which the Fund is entitled either
by law or pursuant to custom in the securities business;
(b) Present for payment and, subject to Section 7.4 below, collect
on a timely basis the amount payable upon all Securities which
may mature or be called, redeemed, or retired, or otherwise
become payable;
(c) Endorse for collection, in the name of the Fund, checks,
drafts and other negotiable instruments;
(d) Surrender interim receipts or Securities in temporary form for
Securities in definitive form;
(e) 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 prepare and submit reports to the
Internal Revenue Service ("IRS") and to the Corporation at
such time, in such manner and containing such information as
is prescribed by the IRS;
(f) Hold for the Fund, either directly or, with respect
to Securities held therein, through a Book-Entry System or
Securities Depository, all rights and similar securities
issued with respect to Securities of the Fund; and
(g) In general, and except as otherwise directed in Proper
Instructions, attend to all non-discretionary details in
connection with the sale, exchange, substitution, purchase,
transfer and other dealings with Securities and assets of the
Fund.
3.9 REGISTRATION AND TRANSFER OF SECURITIES. All Securities held
for the Fund that are issued or issuable only in bearer form
shall be held by the Custodian in that form, provided that any
such Securities shall be held in a Book-Entry System if
eligible therefor. All other Securities held for the Fund may
be registered in the name of the Fund, the Custodian, or any
Sub-Custodian appointed pursuant to Section 3.3 above, or in
the name of any nominee of any of them, or in the name of a
Book-Entry System, Securities Depository or any nominee of
either thereof. The Corporation shall 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 any of the nominees hereinabove referred to or in the
name of a Book-Entry System or Securities Depository, any
Securities registered in the name of the Fund.
3.10 RECORDS.
(a) The Custodian shall maintain, for the Fund, complete and
accurate records with respect to Securities, cash or other
property held for the Fund, including (i) journals or other
records of original entry containing an itemized daily record
in detail of all receipts and deliveries of Securities and all
receipts and disbursements of cash; (ii) ledgers (or other
records) reflecting (A) Securities in transfer, (B) Securities
in physical possession, (C) monies and Securities borrowed
and monies and Securities loaned (together with a record of
the collateral therefor and substitutions of such collateral),
(D) dividends and interest received, and (E) dividends
receivable and interest receivable; and (iii) canceled checks
and bank records related thereto. The Custodian shall keep
such other books and records of the Fund as the Corporation
shall reasonably request, or as may be required by the 1940
Act, including, but not limited to, Section 31 of the 1940 Act
and Rule 31a-2 promulgated thereunder.
(b) All such books and records maintained by the Custodian shall
(i) be maintained in a form acceptable to the Corporation and
in compliance with rules and regulations of the Securities and
Exchange Commission, (ii) be the property of the Corporation
and at all times during the regular business hours of the
Custodian be made available upon request for inspection by
duly authorized officers, employees or agents of the
Corporation and employees or agents of the Securities and
Exchange Commission, and (iii) if required to be maintained by
Rule 31a-1 under the 1940 Act, be preserved for the periods
prescribed in Rule 31a-2 under the 1940 Act.
3.11 FUND REPORTS BY CUSTODIAN. The Custodian shall furnish the
Corporation with a daily activity statement and a summary of
all transfers to or from each Fund Custody Account on the day
following such transfers. At least monthly and from time to
time, the Custodian shall furnish the Corporation with a
detailed statement of the Securities and moneys held by the
Custodian and the Sub-Custodians for the Fund under this
Agreement.
3.12 OTHER REPORTS BY CUSTODIAN. The Custodian shall provide the
Corporation with such reports, as the Corporation may
reasonably request from time to time, on the internal
accounting controls and procedures for safeguarding
Securities, which are employed by the Custodian or any
Sub-Custodian appointed pursuant to Section 3.3 above.
3.13 PROXIES AND OTHER MATERIALS. The Custodian shall cause all
proxies relating to Securities which are not registered in the
name of the Fund, to be promptly executed by the registered
holder of such Securities, without indication of the manner in
which such proxies are to be voted, and shall promptly deliver
to the Corporation such proxies, all proxy soliciting
materials and all notices relating to such Securities.
3.14 INFORMATION ON CORPORATE ACTIONS. The Custodian shall promptly
deliver to the Corporation all information received by the
Custodian and pertaining to Securities being held by the Fund
with respect to optional tender or exchange offers, calls for
redemption or purchase, or expiration of rights as described
in the Standards of Service Guide attached as Exhibit B. If
the Corporation desires to take action with respect to any
tender offer, exchange offer or other similar transaction, the
Corporation shall notify the Custodian at least five Business
Days prior to the date on which the Custodian is to take such
action. The Corporation will provide or cause to be provided
to the Custodian all relevant information for any Security
which has unique put/option provisions at least five Business
Days prior to the beginning date of the tender period.
ARTICLE IV
PURCHASE AND SALE OF INVESTMENTS OF THE FUND
4.1 PURCHASE OF SECURITIES. Promptly upon each purchase of
Securities for the Fund, Written Instructions shall be
delivered to the Custodian, specifying (a) the name of the
issuer or writer of such Securities, and the title or other
description thereof, (b) the number of shares, principal
amount (and accrued interest, if any) or other units
purchased, (c) the date of purchase and settlement, (d) the
purchase price per unit, (e) the total amount payable upon
such purchase, and (f) the name of the person to whom such
amount is payable. The Custodian shall upon receipt of such
Securities purchased by the Fund pay out of the moneys held
for the account of the Fund the total amount specified in
such Written Instructions to the person named therein. The
Custodian shall not be under any obligation to pay out moneys
to cover the cost of a purchase of Securities for the Fund, if
in the Fund Custody Account there is insufficient cash
available to the Fund for which such purchase was made.
4.2 LIABILITY FOR PAYMENT IN ADVANCE OF RECEIPT OF SECURITIES
PURCHASED. In any and every case where payment for the
purchase of Securities for the Fund is made by the Custodian
in advance of receipt of the Securities purchased but in the
absence of specified Written Instructions to so pay in
advance, the Custodian shall be liable to the Fund for such
Securities to the same extent as if the Securities had been
received by the Custodian.
4.3 SALE OF SECURITIES. Promptly upon each sale of Securities by
the Fund, Written Instructions shall be delivered to the
Custodian, specifying (a) the name of the issuer or writer of
such Securities, and the title or other description thereof,
(b) the number of shares, principal amount (and accrued
interest, if any), or other units sold, (c) the date of sale
and settlement, (d) the sale price per unit, (e) the total
amount payable upon such sale, and (f) the person to whom
such Securities are to be delivered. Upon receipt of the
total amount payable to the Fund as specified in such Written
Instructions, the Custodian shall deliver such Securities to
the person specified in such Written 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.
4.4 DELIVERY OF SECURITIES SOLD. Notwithstanding Section 4.3
above or any other provision of this Agreement, the Custodian,
when instructed to deliver Securities against payment, shall
be entitled, if in accordance with generally accepted market
practice, to deliver such Securities prior to actual receipt
of final payment therefor. In any such case, the Fund shall
bear the risk that final payment for such Securities may not
be made or that such Securities may be returned or otherwise
held or disposed of by or through the person to whom they were
delivered, and the Custodian shall have no liability for any
for the foregoing.
4.5 PAYMENT FOR SECURITIES SOLD, ETC. In its sole discretion and
from time to time, the Custodian may credit the Fund Custody
Account, prior to actual receipt of final payment thereof,
with (i) proceeds from the sale of Securities which it has
been instructed to deliver against payment, (ii) proceeds from
the redemption of Securities or other assets of the Fund, and
(iii) income from cash, Securities or other assets of the
Fund. Any such credit shall be conditional upon actual
receipt by Custodian of final payment and may be reversed if
final payment is not actually received in full. The Custodian
may, in its sole discretion and from time to time, permit the
Fund to use funds so credited to the Fund Custody Account in
anticipation of actual receipt of final payment. Any such
funds shall be repayable immediately upon demand made by the
Custodian at any time prior to the actual receipt of all final
payments in anticipation of which funds were credited to the
Fund Custody Account.
4.6 ADVANCES BY CUSTODIAN FOR SETTLEMENT. The Custodian may, in
its sole discretion and from time to time, advance funds to
the Corporation to facilitate the settlement of a Fund's
transactions in the Fund Custody Account. Any such advance
shall be repayable immediately upon demand made by Custodian.
ARTICLE V
REDEMPTION OF FUND SHARES
5.1 TRANSFER OF FUNDS. From such funds as may be available for the
purpose in the relevant Fund Custody Account, and upon receipt
of Proper Instructions specifying that the funds are required
to redeem Shares of the Fund, the Custodian shall wire each
amount specified in such Proper Instructions to or through
such bank as the Corporation may designate with respect to
such amount in such Proper Instructions.
5.2 NO DUTY REGARDING PAYING BANKS. The Custodian shall not be
under any obligation to effect payment or distribution by any
bank designated in Proper Instructions given pursuant to
Section 5.1 above of any amount paid by the Custodian to such
bank in accordance with such Proper Instructions.
ARTICLE VI
SEGREGATED ACCOUNTS
Upon receipt of Proper Instructions, the Custodian shall establish and
maintain a segregated account or accounts for and on behalf of the Fund, into
which account or accounts may be transferred cash and/or Securities, including
Securities maintained in a Depository Account,
(a) in accordance with the provisions of any agreement among the
Corporation, the Custodian and a broker-dealer registered under the
1934 Act and a member of the 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 (or the Commodity
Futures Trading Commission or any registered contract market), or
of any similar organization or organizations, regarding escrow or
other arrangements in connection with transactions by the Fund,
(b) for purposes of segregating cash or Securities in connection with
securities options purchased or written by the Fund or in
connection with financial futures contracts (or options thereon)
purchased or sold by the Fund,
(c) which constitute collateral for loans of Securities made by the
Fund,
(d) for purposes of compliance by the Fund with requirements under the
1940 Act for the maintenance of segregated accounts by registered
investment companies in connection with reverse repurchase
agreements and when-issued, delayed delivery and firm commitment
transactions, and
(e) for other proper corporate purposes, but only upon receipt of, in
addition to Proper Instructions, a certified copy of a resolution
of the Board of Directors, certified by an Officer, setting forth
the purpose or purposes of such segregated account and declaring
such purposes to be proper corporate purposes.
Each segregated account established under this Article VI shall be
established and maintained for the Fund only. All Proper Instructions relating
to a segregated account shall specify the Fund.
ARTICLE VII
CONCERNING THE CUSTODIAN
7.1 STANDARD OF CARE. The Custodian shall be held to the exercise
of reasonable care in carrying out its obligations under this
Agreement, and shall be without liability to the Corporation
or any Fund for any loss, damage, cost, expense (including
attorneys' fees and disbursements), liability or claim unless
such loss, damage, cost, expense, liability or claim arises
from negligence, bad faith or willful misconduct on its part
or on the part of any Sub-Custodian appointed pursuant to
Section 3.3 above. The Custodian shall be entitled to rely on
and may act upon advice of counsel on all matters, and shall
be without liability for any action reasonably taken or
omitted pursuant to such advice. The Custodian shall promptly
notify the Corporation of any action taken or omitted by the
Custodian pursuant to advice of counsel. The Custodian shall
not be under any obligation at any time to ascertain whether
the Corporation or the Fund is in compliance with the 1940
Act, the regulations thereunder, the provisions of the
Corporation's charter documents or by-laws, or its investment
objectives and policies as then in effect.
7.2 ACTUAL COLLECTION REQUIRED. The Custodian shall not be liable
for, or considered to be the custodian of, any cash belonging
to the Fund or any money represented by a check, draft or
other instrument for the payment of money, until the Custodian
or its agents actually receive such cash or collect on such
instrument.
7.3 NO RESPONSIBILITY FOR TITLE, ETC. So long as and to the extent
that it is in the exercise of reasonable care, the Custodian
shall not be responsible for the title, validity or
genuineness of any property or evidence of title thereto
received or delivered by it pursuant to this Agreement.
7.4 LIMITATION ON DUTY TO COLLECT. Custodian shall not be required
to enforce collection, by legal means or otherwise, of any
money or property due and payable with respect to Securities
held for the Fund if such Securities are in default or payment
is not made after due demand or presentation.
7.5 RELIANCE UPON DOCUMENTS AND INSTRUCTIONS. The Custodian shall
be entitled to rely upon any certificate, notice or other
instrument in writing received by it and reasonably believed
by it to be genuine. The Custodian shall be entitled to rely
upon any Oral Instructions and any Written Instructions
actually received by it pursuant to this Agreement.
7.6 EXPRESS DUTIES ONLY. The Custodian shall have no duties or
obligations whatsoever except such duties and obligations as
are specifically set forth in this Agreement, and no covenant
or obligation shall be implied in this Agreement against the
Custodian.
7.7 CO-OPERATION. The Custodian shall cooperate with and supply
necessary information to the entity or entities appointed by
the Corporation to keep the books of account of the Fund
and/or compute the value of the assets of the Fund. The
Custodian shall take all such reasonable actions as the
Corporation may from time to time request to enable the
Corporation to obtain, from year to year, favorable opinions
from the Corporation's independent accountants with respect to
the Custodian's activities hereunder in connection with (a)
the preparation of the Corporation's reports on Form N-1A and
Form N-SAR and any other reports required by the Securities
and Exchange Commission, and (b) the fulfillment by the
Corporation of any other requirements of the Securities and
Exchange Commission.
ARTICLE VIII
INDEMNIFICATION
8.1 INDEMNIFICATION BY CORPORATION. The Corporation shall
indemnify and hold harmless the Custodian and any
Sub-Custodian appointed pursuant to Section 3.3 above, and any
nominee of the Custodian or of such Sub-Custodian, from and
against any loss, damage, cost, expense (including attorneys'
fees and disbursements), liability (including, without
limitation, liability arising under the Securities Act of
1933, the 1934 Act, the 1940 Act, and any state or foreign
securities and/or banking laws) or claim arising directly or
indirectly (a) from the fact that Securities are registered in
the name of any such nominee, or (b) from any action or
inaction by the Custodian or such Sub-Custodian (i) at the
request or direction of or in reliance on the advice of the
Corporation, or (ii) upon Proper Instructions, or (c)
generally, from the performance of its obligations under this
Agreement or any sub-custody agreement with a Sub-Custodian
appointed pursuant to Section 3.3 above, provided that neither
the Custodian nor any such Sub-Custodian shall be indemnified
and held harmless from and against any such loss, damage,
cost, expense, liability or claim arising from the Custodian's
or such Sub-Custodian's negligence, bad faith or willful
misconduct.
8.2 INDEMNIFICATION BY CUSTODIAN. The Custodian shall indemnify
and hold harmless the Corporation from and against any loss,
damage, cost, expense (including attorneys' fees and
disbursements), liability (including without limitation,
liability arising under the Securities Act of 1933, the 1934
Act, the 1940 Act, and any state or foreign securities and/or
banking laws) or claim arising from the negligence, bad faith
or willful misconduct of the Custodian or any Sub-Custodian
appointed pursuant to Section 3.3 above, or any nominee of the
Custodian or of such Sub-Custodian.
8.3 INDEMNITY TO BE PROVIDED. If the Corporation requests the
Custodian to take any action with respect to Securities, which
may, in the opinion of the Custodian, result in the Custodian
or its nominee becoming liable for the payment of money or
incurring liability of some other form, the Custodian shall
not be required to take such action until the Corporation
shall have provided indemnity therefor to the Custodian in an
amount and form satisfactory to the Custodian.
8.4 SECURITY. If the Custodian advances cash or Securities to the
Fund for any purpose, either at the Corporation's request or
as otherwise contemplated in this Agreement, or in the event
that the Custodian or its nominee incurs, in connection with
its performance under this Agreement, any loss, damage, cost,
expense (including attorneys' fees and disbursements),
liability or claim (except such as may arise from its or its
nominee's negligence, bad faith or willful misconduct), then,
in any such event, any property at any time held for the
account of the Fund shall be security therefor, and should the
Fund fail promptly to repay or indemnify the Custodian, the
Custodian shall be entitled to utilize available cash of such
Fund and to dispose of other assets of such Fund to the extent
necessary to obtain reimbursement or indemnification.
ARTICLE IX
FORCE MAJEURE
Neither the Custodian nor the Corporation shall be liable for any
failure or delay in performance of its obligations under this Agreement arising
out of or caused, directly or indirectly, by circumstances beyond its reasonable
control, including, without limitation, acts of God; earthquakes; fires; floods;
wars; civil or military disturbances; sabotage; strikes; epidemics; riots; power
failures; computer failure and any such circumstances beyond its reasonable
control as may cause interruption, loss or malfunction of utility,
transportation, computer (hardware or software) or telephone communication
service; accidents; labor disputes; acts of civil or military authority;
governmental actions; or inability to obtain labor, material, equipment or
transportation; provided, however, that the Custodian in the event of a failure
or delay (i) shall not discriminate against the Fund in favor of any other
customer of the Custodian in making computer time and personnel available to
input or process the transactions contemplated by this Agreement and (ii) shall
use its best efforts to ameliorate the effects of any such failure or delay.
ARTICLE X
EFFECTIVE PERIOD; TERMINATION
10.1 EFFECTIVE PERIOD. This Agreement shall become effective as of
its execution and shall continue in full force and effect
until terminated as hereinafter provided.
10.2 TERMINATION. Either party 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
sixty (60) days after the date of the giving of such notice.
If a successor custodian shall have been appointed by the
Board of Directors, the Custodian shall, upon receipt of a
notice of acceptance by the successor custodian, on such
specified date of termination (a) deliver directly to the
successor custodian all Securities (other than Securities held
in a Book-Entry System or Securities Depository) and cash then
owned by the Fund and held by the Custodian as custodian, and
(b) transfer any Securities held in a Book-Entry System or
Securities Depository to an account of or for the benefit of
the Fund at the successor custodian, provided that the
Corporation shall have paid to the Custodian all fees,
expenses and other amounts to the payment or reimbursement of
which it shall then be entitled. Upon such delivery and
transfer, the Custodian shall be relieved of all obligations
under this Agreement. The Corporation may at any time
immediately terminate this Agreement in the event of the
appointment of a conservator or receiver for the Custodian by
regulatory authorities or upon the happening of a like event
at the direction of an appropriate regulatory agency or court
of competent jurisdiction.
10.3 FAILURE TO APPOINT SUCCESSOR CUSTODIAN. If a successor
custodian is not designated by the Corporation on or before
the date of termination specified pursuant to Section 10.1
above, then the Custodian shall have the right to deliver to a
bank or corporation company of its own selection, which (a) is
a "bank" as defined in the 1940 Act and (b) has aggregate
capital, surplus and undivided profits as shown on its then
most recent published report of not less than $25 million, all
Securities, cash and other property held by Custodian under
this Agreement and to transfer to an account of or for the
Fund at such bank or trust company all Securities of the Fund
held in a Book-Entry System or Securities Depository. Upon
such delivery and transfer, such bank or trust company shall
be the successor custodian under this Agreement and the
Custodian shall be relieved of all obligations under this
Agreement.
ARTICLE XI
COMPENSATION OF CUSTODIAN
The Custodian shall be entitled to compensation as agreed upon from
time to time by the Corporation and the Custodian. The fees and other charges in
effect on the date hereof and applicable to the Fund are set forth in Exhibit C
attached hereto.
ARTICLE XII
LIMITATION OF LIABILITY
It is expressly agreed that the obligations of the Corporation
hereunder shall not be binding upon any of the Directors, shareholders,
nominees, officers, agents or employees of the Corporation personally, but shall
bind only the property of the Corporation as provided in the Corporation's
Articles of Incorporation, as from time to time amended. The execution and
delivery of this Agreement have been authorized by the Directors, and this
Agreement has been signed and delivered by an authorized officer of the
Corporation, acting as such, and neither such authorization by the Directors nor
such execution and delivery by such officer shall be deemed to have been made by
any of them individually or to impose any liability on any of them personally,
but shall bind only the corporation property of the Corporation as provided in
the above-mentioned Articles of Incorporation.
ARTICLE XIII
NOTICES
Unless otherwise specified herein, all demands, notices, instructions,
and other communications to be given hereunder shall be in writing and shall be
sent or delivered to the recipient at the address set forth after its name
hereinbelow:
TO THE CORPORATION:
Xxxxx Xxxxx, Xx., Secretary
The Chaconia Income & Growth Fund, Inc.
c/o Foley & Lardner
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
TO CUSTODIAN:
Firstar Bank, N.A.
000 Xxxxxx Xxxxxx, X.X. XX-XX-00XX
Xxxxxxxxxx, Xxxx 00000
Attention: Mutual Fund Custody Services
Facsimile: (000) 000-0000
or at such other address as either party shall have provided to the other by
notice given in accordance with this Article XIII. Writing shall include
transmissions by or through teletype, facsimile, central processing unit
connection, on-line terminal and magnetic tape.
ARTICLE XIV
MISCELLANEOUS
14.1 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Ohio.
14.2 REFERENCES TO CUSTODIAN. The Corporation shall not circulate
any printed matter which contains any reference to Custodian
without the prior written approval of Custodian, excepting
printed matter contained in the prospectus or statement of
additional information for the Fund and such other printed
matter as merely identifies Custodian as custodian for the
Fund. The Corporation shall submit printed matter requiring
approval to Custodian in draft form, allowing sufficient time
for review by Custodian and its counsel prior to any deadline
for printing.
14.3 NO WAIVER. No failure by either party hereto to exercise, and
no delay by such party in exercising, any right hereunder
shall operate as a waiver thereof. The exercise by either
party hereto of any right hereunder shall not preclude the
exercise of any other right, and the remedies provided herein
are cumulative and not exclusive of any remedies provided at
law or in equity.
14.4 AMENDMENTS. This Agreement cannot be changed orally and no
amendment to this Agreement shall be effective unless
evidenced by an instrument in writing executed by the parties
hereto.
14.5 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and by the parties hereto on separate
counterparts, each of which shall be deemed an original but
all of which together shall constitute but one and the same
instrument.
14.6 SEVERABILITY. If any provision of this Agreement shall be
invalid, illegal or unenforceable in any respect under any
applicable law, the validity, legality and enforceability of
the remaining provisions shall not be affected or impaired
thereby.
14.7 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their
respective successors and assigns; provided, however, that
this Agreement shall not be assignable by either party hereto
without the written consent of the other party hereto.
14.8 HEADINGS. The headings of sections in this Agreement are for
convenience of reference only and shall not affect the meaning
or construction of any provision of this Agreement.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed and delivered in its name and on its behalf by its
representatives thereunto duly authorized, all as of the day and year first
above written.
THE CHACONIA INCOME & GROWTH FUND, INC. FIRSTAR BANK, N.A.
By:_______________________________ By: ___________________________
Print:_____________________________ Print:_________________________
Title:_____________________________ Title:_________________________
Attest:____________________________ Attest:________________________
