CUSTODY AGREEMENT
BETWEEN
STAR BANK, N.A.
Wexford Trust CUSTODY AGREEMENT
TABLE OF CONTENTS
ARTICLE I - DEFINITIONS. 1
ARTICLE II - APPOINTMENT; ACCEPTANCE;
AND FURNISHING OF DOCUMENTS. 5
Appointment of Custodian 5
Acceptance of Custodian. 5
Documents to be Furnished. 6
Notice of Appointment of Dividend and Transfer Agent
6
ARTICLE III - RECEIPT OF TRUST ASSETS 6
Delivery of Moneys. 6
Delivery of Securities 6
Payments for Shares 7
Duties Upon Receipt. 7
Validity of Title. 7
ARTICLE IV - DISBURSEMENT OF TRUST ASSETS. 7
Declaration of Dividends by Trust
7
Segregation of Redemption Proceeds 8
Disbursements of Custodian 8
Payment of Custodian Fees 9
ARTICLE V - CUSTODY OF TRUST ASSETS. 9
Separate Accounts for Each Fund
9
Segregation of Non-Cash Assets.
9
Securities in Bearer and Registered Form
10
Duties of Custodian As to Securities 10
Certain Actions Upon Written Instructions
11
Custodian to Deliver Proxy Materials 12
Custodian to Deliver Tender Offer Information.
12
ARTICLE VI - PURCHASE AND SALE OF SECURITIES 13
Purchase of Securities. 13
Sale of Securities. 14
Payment on Settlement Date. 15
Credit of Moneys Prior to Receipt
15
Segregated Accounts. 15
Advances for Settlement. 17
ARTICLE VII - TRUST INDEBTEDNESS 18
ARTICLE VIII - CONCERNING THE CUSTODIAN. 19
Limitations of Liability of Custodian.
19
Actions Not Required By Custodian 20
No Duty to Collect Amounts Due From Dividend
and Transfer Agent.
21
No Enforcement Actions
21
Authority to Use Agents and Sub-Custodians
21
No Duty to Supervise Investments.
22
INDEX, continued
ARTICLE VIII, continued
All Records Confidential.
23
Compensation of Custodian. 23
Reliance Upon Instructions 23
Books and Records 24
Internal Accounting Control Systems
24
No Management of Assets By Custodian
24
Assistance to Trust. 25
Grant of Security Interest.
25
ARTICLE IX - INITIAL TERM; TERMINATION.
25
Initial Term 25
Termination. 25
Failure to Designate Successor Trustee.
26
ARTICLE X - FORCE MAJEURE. 27
ARTICLE XI - MISCELLANEOUS 28
Designation of Authorized Persons. 28
Limitation of Personal Liability
28
Authorization By Board 29
Custodian's Consent to Use of Its Name.
29
Notices to Custodian. 29
Notices to Trust. 30
Amendments In Writing 30
Successors and Assigns. 30
Governing Law 30
Jurisdiction 30
Counterparts 31
Headings 31
APPENDIX A - Authorized Signatures
APPENDIX B - Series of the Trust
APPENDIX C - Agents of the Custodian
APPENDIX D - Standards of Service Guide
APPENDIX E - Schedule of Compensation
CUSTODY AGREEMENT
This agreement (the "Agreement") is entered into as
of the 15 day of February, 1996, by and between the
Wexford Trust, (the "Trust") and Star Bank, National
Association, (the "Custodian"), a national banking
association having its principal office at 4
00 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx, 00000.
WHEREAS, the Trust and the Custodian desire to enter into
this Agreement to provide for the custody and safekeeping
of the assets of the Trust as required by the Act (as
hereafter defined).
THEREFORE, in consideration of the mutual promises
hereinafter set forth, the Trust and the Custodian agree
as follows:
ARTICLE I
Definitions
The following words and phrases, when used in this
Agreement, unless the context otherwise requires, shall
have the following meanings:
Act - the Investment Company Act of 1940, as amended.
1934 Act - the Securities and Exchange Act of 1934, as
amended.
Authorized Person - any (i) Officer of the Trust or (ii)
any other person, whether or not any such person is an
officer or employee of the Trust, who is duly authorized
by the Board of Trustees of the Trust to give Oral
Instructions and Written
Instructions on behalf of the Trust or any Fund, and
named in Appendix A attached hereto and as amended from
time to time by
resolution of the Board of Trustees, certified by an
Officer, and received by the Custodian.
Board of Trustees- the Trustees from time to time
serving under the Trust's Agreement and Declaration of
Trust, as from time to time amended.
Book-Entry System - a federal book-entry system as
provided in Subpart O of Treasury Circular Xx. 000, 00 XXX
306, in Subpart B of 31 CFT Part 350, or in such book-
entry regulations of federal agencies as are substantially
in the form of Su
bpart O.
Business Day - any day recognized as a settlement day by
The New York Stock Exchange, Inc. and any other day for
which the Trust computes the net asset value of Shares of
any fund.
Depository - The Depository Trust Company ("DTC"), a
limited purpose trust company, its successor(s) and its
nominee(s). Depository shall include any other clearing
agency registered with the SEC under Section 17A of 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 provided that the Custodian shall have received
a copy of a resolution of the Board of Trustees, certified
by an Officer, specifically approving the use of such
clearing agency as a depository for the Funds.
Dividend and Transfer Agent - the dividend and transfer
agent appointed, from time to time, pursuant to a written
agreement between the dividend and transfer agent and the
Trust.
Foreign Securities - a) securities issued and sold primarily
outside of the United States by a foreign government, a
national of any foreign country, or a trust or other
organization incorporated or organized under the laws of any
foreign count
ry or; b) securities issued or guaranteed by the government of
the United States, by any state, by any political
subdivision or agency thereof, or by any entity organized
under the laws of the United States or of any state thereof,
which have been issued an
d sold primarily outside of the United States.
Fund - each series of the Trust listed in Appendix B and any
additional series added pursuant to
Proper Industries. A series is individually referred to as
a "Fund" and collectively referred to as the "Funds."
Money Market Security - debt obligations issued or
guaranteed as to principal and/or interest by the government
of the United States or agencies or instrumentalities
thereof, commercial paper, obligations (including
certificates of deposit,
bankers' acceptances, repurchase agreements and reverse
repurchase agreements with respect to the same), and time
deposits of domestic banks and thrift institutions whose
deposits are insured by the Federal Deposit Insurance
Corporation, and short-term cor
porate obligations where the purchase and sale of such
securities normally require settlement in federal funds or
their equivalent on the same day as such purchase and sale,
all of which mature in not more than thirteen (13) months.
NASD - the National Association of Securities Dealers, Inc.
Officer - the Chairman, President, Secretary, Treasurer, any
Vice President, Assistant Secretary or Assistant Treasurer
of the Trust.
Oral Instructions - instructions orally transmitted to and
received by the Custodian from an Authorized Person (or from
a person that the Custodian reasonably believes in good
faith to be an Authorized Person) and confirmed by Written
Instructi
ons in such a manner that such Written Instructions are
received by the Custodian on the Business Day immediately
following receipt of such Oral Instructions.
Proper Instructions - Oral Instructions or Written
Instructions. Proper Instructions may be continuing Written
Instructions when deemed appropriate by both parties.
Prospectus - the Trust's then currently effective
prospectus and Statement of Additional Information, as filed
with and declared effective from time to time by the
Securities and Exchange Commission.
Security or Securities - Money Market Securities,
common stock, preferred stock, options, financial futures,
bonds, notes, debentures, corporate debt securities,
mortgages, 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
interest therein, or any s
imilar property or assets that the Custodian has the
facilities to clear and to service.
the Securities and Exchange Commission of the United
States of America.
with respect to a Fund, the units of beneficial interest
issued by the Trust on account of such Fund.
Trust - the Wexford Trust a business trust organized
under the laws of Massachusetts which is an open-end
diversified management investment company registered
under the Act.
Written Instructions - communications in writing
actually received by the Custodian from an Authorized
Person. A communication in writing includes a
communication by facsimile, telex or between electro-
mechanical or electronic devices (where t
he use of such devices have been approved by resolution of
the Trustee and the resolution is certified by an Officer
and delivered to the Custodian). All written
communications shall be directed to the Custodian,
attention: Mutual Fund Custody Department.
ARTICLE II
Appointment; Acceptance; and Furnishing of Documents
A. Appointment of Custodian. The Trust hereby
constitutes and appoints the Custodian as custodian of all
Securities and cash owned by the Trust at any time during
the term of this Agreement.
B. Acceptance of Custodian. The Custodian hereby
accepts appointment as such custodian and agrees to
perform the duties thereof as hereinafter set forth.
C. 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 Trust:
1. A copy of the Articles of Incorporation of the Trust
certified by the Secretary.
2. A copy of the By-Laws of the Trust certified by the
Secretary.
3. A copy of the resolution of the Board of Trustees of
the Trust appointing the Custodian, certified by the
Secretary.
4. A copy of the then current Prospectus.
5. A Certificate of the President and Secretary of the
Trust setting forth the names and signatures of the
current Officers of the Trust and other Authorized
Persons.
D. Notice of Appointment of Dividend and Transfer
Agent. The Trust agrees to notify the Custodian in
writing of the appointment, termination or change in
appointment of any Dividend and Transfer Agent.
ARTICLE III
Receipt of Trust Assets
A. Delivery of Moneys. During the term of this
Agreement, the Trust will deliver or cause to be delivered
to the Custodian all moneys to be held by the Custodian
for the account of any Fund. The Custodian shall be
entitled to reverse any depo
sits made on any Fund's behalf where such deposits have
been entered and moneys are not finally collected within
30 days of the making of such entry.
B. Delivery of Securities. During the term of this
Agreement, the Trust will deliver or cause to be delivered
to the Custodian all Securities to be held by the
Custodian for the account of any Fund. The Custodian will
not have any duties
or responsibilities with respect to such Securities until
actually received by the Custodian.
C. Payments for Shares. As and when received, the
Custodian shall deposit to the account(s) of a Fund any
and all payments for Shares of that Fund issued or sold
from time to time as they are received from the Trust's
distributor or Divide
nd and Transfer Agent or from the Trust itself.
D. Duties Upon Receipt. The Custodian shall not be
responsible for any Securities, moneys or other assets of
any Fund until actually received by it.
E. Validity of Title. 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.
ARTICLE IV
Disbursement of Trust Assets
A. Declaration of Dividends by Trust. The Trust
shall furnish to the Custodian a copy of the resolution of
the Board of Trustees of the Trust, certified by the
Trust's Secretary, either (i) setting forth the date of
the declaration of any dividend or distribution in respect
of Shares of any Fund of the Trust, the date of payment
thereof, the record date as of which the Fund shareholders
entitled to payment shall be determined, the amount
payable per share to Fund shareholders of record as of
that date, and the total amount to be paid by the
Dividend and Transfer Agent on the payment date, or (ii)
authorizing the declaration of dividends and distributions
in respect of Shares of a Fund on a daily basis and
authorizing the Custodian to rely on Written Instructions
setting forth the date of the declaration of any such
dividend or distribution, the date of payment thereof, the
record date as of which the Fund shareholders entitled to
payment shall be determined, the amount payable per share
to Fund shareholders of record as of that date, and the
total amount to be paid by the Dividend and Transfer Agent
on the payment date.
On the payment date specified in the resolution or
Written Instructions described above, the Custodian shall
segregate such amounts from moneys held for the account of
the Fund so that they are available for such payment.
B. Segregation of Redemption Proceeds. Upon
receipt of Proper Instructions so directing it, the
Custodian shall segregate amounts necessary for the
payment of redemption proceeds to be made by the Dividend
and Transfer Agent from moneys he
ld for the account of the Fund so that they are available
for such payment.
C. Disbursements of Custodian. Upon receipt of a
Certificate directing payment and setting forth the name
and address of the person to whom such payment is to be
made, the amount of such payment, the name of the Fund
from which payment is to b
e made, and the purpose for which payment is to be made,
the Custodian shall disburse amounts as and when directed
from the assets of that Fund. The Custodian is authorized
to rely on such directions and shall be under no
obligation to inquire as to th
e propriety of such directions.
D. Payment of Custodian Fees. Upon receipt of
Written Instructions directing payment, the Custodian
shall disburse moneys from the assets of the Trust in
payment of the Custodian's fees and expenses as provided
in Article VIII hereof.
ARTICLE V
Custody of Trust Assets
A. Separate Accounts for Each Fund. As to each
Fund, the Custodian shall open and maintain a separate
bank account or accounts in the United States in the name
of the Trust coupled with the name of such Fund, subject
only to draft or order by
the Custodian acting pursuant to the terms of this
Agreement, and shall hold all cash received by it from or
for the account of the Fund, other than cash maintained by
the Fund in a bank account established and used by the
Fund in accordance with Rule 17f-3
under the Act. Moneys held by the Custodian on behalf of
a
Fund may be deposited by the Custodian to its credit as
Custodian in the banking department of the Custodian.
Such moneys shall be deposited by the Custodian in its
capacity as such, and shall be
withdrawable by the Custodian only in such capacity.
B. Segregation of Non-Cash Assets. All Securities
and non-cash property held by the Custodian for the
account of a Fund (other than Securities maintained in a
Depository or Book-entry System) shall be physically
segregated from other Secur
ities and non-cash property in the possession of the
Custodian (including the Securities and non-cash property
of the other Funds) and shall be identified as subject to
this Agreement.
C. Securities in Bearer and Registered Form. All
Securities held which are issued or issuable only in
bearer form, shall be held by the Custodian in that form;
all other Securities held for the Fund may be registered
in the name of the Custodi
an, any sub-custodian appointed in accordance with this
Agreement, or the nominee of any of them. The Trust
agrees to furnish to the Custodian appropriate instruments
to enable the Custodian to hold, or deliver in proper form
for transfer, any Securities t
hat it may hold for the account of any Fund and which may,
from time to time, be registered in the name of a Fund.
D. Duties of Custodian As to Securities. Unless
otherwise instructed by the Trust, with respect to all
Securities held for the Trust, the Custodian shall on a
timely basis (concerning items 1 and 2 below, as defined
in the Custodian's Standard
s of Service Guide, as amended from time to time, annexed
hereto as Appendix D):
1.) Collect all income due and payable with respect
to such Securities;
2.) Present for payment and collect amounts payable
upon all Securities which may mature or be called,
redeemed, or retired, or otherwise become payable;
3.) Surrender interim receipts or Securities in
temporary form for Securities in definitive form; and
4.) 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, including any foreign taxing
authority, now or hereafter in effect.
E. Certain Actions Upon Written Instructions.
Upon receipt of a Written Instructions and not otherwise,
the Custodian shall:
1.) Execute and deliver to such persons as may be
designated in such Written Instructions proxies, consents,
authorizations, and any other instruments whereby the
authority of the Trust as beneficial owner of any
Securities
may be exercised;
2.) Deliver any Securities in exchange for other
Securities or cash issued or paid in connection with the
liquidation, reorganization, refinancing, merger,
consolidation, or recapitalization of any trust, or the
exercise of any conversion privilege;
3.) Deliver any Securities to any protective
committee, reorganization committee, or other person in
connection with the reorganization, refinancing, merger,
consolidation, recapitalization, or sale of assets of any
trust, and receive and hold under t
he 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;
4.) Make such transfers or exchanges of the assets
of any Fund and take such other steps as shall be stated
in the Written Instructions to be for the purpose of
effectuating any duly authorized plan of liquidation,
reorganization, merger, consolid
ation or recapitalization of the Trust; and
5.) Deliver any Securities held for any Fund to the
depository agent for tender or other similar offers.
F. Custodian to Deliver Proxy Materials. The
Custodian shall promptly deliver to the Trust all notices,
proxy material and executed but unvoted proxies pertaining
to shareholder meetings of Securities held by any Fund.
The Custodian shall not
vote or authorize the voting of any Securities or give
any consent, waiver or approval with respect thereto
unless so directed by Written Instructions.
G. Custodian to Deliver Tender Offer Information.
The Custodian shall promptly deliver to the Trust all
information received by the Custodian and pertaining to
Securities held by any Fund with respect to tender or
exchange offers, calls for re
demption or purchase, or expiration of rights. If the
Trust desires to take action with respect to any tender
offer, exchange offer or other similar transaction, the
Trust shall notify the Custodian at least five Business
Days prior to the date on which th
e Custodian is to take such action. The Trust 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 perio
d.
ARTICLE VI
Purchase and Sale of Securities
A. Purchase of Securities. Promptly after each
purchase of Securities by the Trust, the Trust shall
deliver to the Custodian (i) with respect to each purchase
of Securities which are not Money Market Securities,
Written Instructions, and (ii)
with respect to each purchase of Money Market
Securities, Proper Instructions, specifying with respect
to each such purchase the;
1.) name of the issuer and the title of the
Securities,
2.) the number of shares, principal amount
purchased
(and accrued interest, if any) or other units purchased,
3.) date of purchase and settlement,
4.) purchase price per unit,
5.) total amount payable,
6.) name of the person from whom, or the broker
through which, the purchase was made,
7.) the name of the person to whom such amount is
payable, and
8.) the Fund for which the purchase was made.
The Custodian shall, against receipt of Securities
purchased by or for the Trust, pay out of the moneys held
for the account of such Fund the total amount specified in
the Written Instructions, or Oral Instructions, if
applicable, to the person named th
erein. The Custodian shall not be under any obligation to
pay out moneys to cover the cost of a purchase of
Securities for a Fund, if in the relevant Fund custody
account there is insufficient cash available to the Fund
for which such purchase was made
.
B. Sale of Securities. Promptly after each sale of
Securities by a Fund, the Trust shall deliver to the
Custodian (i) with respect to each sale of Securities
which are not Money Market Securities, Written
Instructions, and (ii) with respect to
each sale of Money Market Securities, Proper Instructions,
specifying with respect to each such sale the:
1.) name of the issuer and the title of the
Securities,
2.) number of shares, principal amount sold (and
accrued interest, if any) or other units old,
3.) date of sale and settlement,
4.) sale price per unit,
5.) total amount receivable,
6.) name of the person to whom, or the broker
through which, the sale was made,
7.) name of the person to whom such Securities are
to
be delivered, and
8.) Fund for which the sale was made.
The Custodian shall deliver the Securities against
receipt of the total amount specified in the Written
Instructions,
or Oral Instructions, if applicable. Notwithstanding any
other provision of this Agreement, the Custodian, when
properly instructed as
provided herein 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 for which the
Securities were delivered shall bear the risk that final
payment for the Securities may not be made or that the
Securities may be returned or otherwise held or disposed
of by or through the person to whom they were delivered,
and the Custodian shall hav
e no liability for any of the foregoing.
C. Payment on Settlement Date. On contractual
settlement date, the account of the Fund will be charged
for all purchased Securities settling on that day,
regardless of whether or not delivery is made. Likewise,
on contractual settlement date,
proceeds from the sale of Securities settling that day
will be credited to the account of the Fund, irrespective
of delivery. Any such credit shall be conditioned upon
actual receipt by Custodian of final payment and may be
reversed if final payment is not
actually received in full.
D. Credit of Moneys Prior to Receipt. With respect
to any credit given prior to actual receipt of final
payment, the Custodian may, in its sole discretion and
from time to time, permit a Fund to use funds so credited
to its Fund custody accoun
t in anticipation of actual receipt of final payment. Any
such funds shall be deemed a loan from the Custodian to
the Trust payable on demand and bearing interest accruing
from the date such loan is made up to but not including
the date on which such loan
is repaid at the rate per annum customarily charged by the
Custodian on similar loans.
E. Segregated Accounts. The Custodian shall, upon
receipt of Proper Instructions so directing it, establish
and maintain a segregated account or accounts for and on
behalf of a Fund. Cash and/or Securities may be
transferred into such acc
ount or accounts for specific purposes, to-wit:
1.) in accordance with the provision of any
agreement among the Trust, the Custodian, and a broker
dealer registered under the 1934 Act, and also 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, the Commodity Futures Trading
Commission, any registered contract market, or any similar
organization or organizations requiring
escrow or other similar arrangements in connection with
transactions by the Fund;
2.) for purposes of segregating cash or Securities
in connection with options purchased, sold, or written by
the Fund or commodity futures contracts or options thereon
purchased or sold by the Fund;
3.) for the purpose of compliance by the Fund with
the
procedures required for reverse repurchase agreements,
firm commitment agreements, standby commitment agreements,
and short sales by Act Release No. 10666, or any
subsequent release or releases or
rule of the SEC relating to the maintenance of segregated
accounts by registered investment companies;
4.) for the purpose of segregating collateral for
loans of Securities made by the Fund; and
5.) for other proper corporate purposes, but only
upon receipt of, in addition to Proper Instructions, a
copy of a resolution of the Board of Trustees, certified
by an Officer, setting forth the purposes of such
segregated account.
Each segregated account established hereunder shall
be established and maintained for a single Fund only. All
Proper Instructions relating to a segregated account shall
specify the Fund involved.
Advances for Settlement. Except as otherwise may be
agreed upon by the parties hereto, the Custodian shall not
be required to comply with any Written Instructions to
settle the purchase of any Securities on behalf of a Fund
unless there i
s sufficient cash in the account(s) pertaining to such Fund
at the time or to settle the sale of any Securities from
such an account(s) unless such Securities are in
deliverable form. Notwithstanding the foregoing, if the
purchase price of such Securities
exceeds the amount of cash in the account(s) at the time
of such purchase, the Custodian may, in its sole
discretion, advance the amount of the difference in order
to settle the purchase of such Securities. The amount of
any such advance shall be deemed a
loan from the Custodian to the Trust payable on demand and
bearing interest accruing from the date such loan is made
up to but not including the date such loan is repaid at
the rate per annum customarily charged by the Custodian on
similar loans.
ARTICLE VII
Trust Indebtedness
In connection with any borrowings by the Trust, the Trust
will cause to be delivered to the Custodian by a bank or
broker requiring Securities as collateral for such
borrowings (including the Custodian if the borrowing is
from the Custodian), a notice
or undertaking in the form currently employed by such bank
or broker setting forth the amount of collateral. The
Trust shall promptly deliver to the Custodian Written
Instructions specifying with respect to each such
borrowing: (a) the name of the bank or
broker, (b) the amount and terms of the borrowing, which
may be set forth by incorporating by reference an attached
promissory note duly endorsed by the Trust, or a loan
agreement, (c) the date, and time if known, on which the
loan is to be entered into, (d
) the date on which the loan becomes due and payable, (e)
the total amount payable to the Trust on the borrowing
date, and (f) the description of the Securities securing
the loan, including the name of the issuer, the
title and the number of shares or other units or the
principal amount. The Custodian shall deliver on the
borrowing date specified in the Written Instructions the
required collateral against the lender's delivery of the
total loan amount then payab
le, provided that the same conforms to that which is
described in the Written Instructions. The Custodian
shall deliver, in the manner directed by the Trust, such
Securities as additional collateral, as may be specified
in Written Instructions, to secure f
urther any transaction described in this Article VII.
The Trust 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 te
ndered to it.
The Custodian may, at the option of the lender, keep
such collateral in its possession, subject to all rights
therein given to the lender because of the loan. The
Custodian may require such
reasonable conditions regarding such collateral and its
dealings with third-party lenders as it may deem
appropriate.
ARTICLE VIII
Concerning the Custodian
A. Limitations on Liability of Custodian. Except
as
otherwise provided herein, the Custodian shall not be
liable for any loss or damage resulting from its action or
omission to act or otherwise, except for any such loss or
damage arising out o
f its own gross negligence or willful misconduct. The
Trust shall defend, indemnify and hold harmless the
Custodian and its directors, officers, employees and
agents with respect to any loss, claim, liability or cost
(including reasonable attorneys' fees)
arising or alleged to arise from or relating to the
Trust's duties hereunder or any other action or inaction
of the Trust or its Trustees, officers, employees or
agents, except such as may arise from the grossly
negligent action or omission, willful miscond
uct or breach of this Agreement by the Custodian. The
Custodian shall be entitled to rely on and may act upon
the advice and opinion of counsel on all matters, at the
expense of the Trust, and shall be without liability for
any action reasonably ta
xxx or omitted pursuant to such advice or opinion of
counsel. The provisions under this paragraph shall
survive the termination of this Agreement.
B. Actions Not Required By Custodian. Without
limiting the generality of the foregoing, the Custodian,
acting in the capacity of Custodian hereunder, shall be
under no obligation to inquire into, and shall not be
liable for:
1.) The validity of the issue of any Securities
purchased by or for the account of any Fund, the legality
of the purchase thereof, or the propriety of the amount
paid therefor;
2.) The legality of the sale of any Securities
by
or for the account of any Fund, or the propriety of the
amount for which the same are sold;
3.) The legality of the issue or sale of any Shares
of any Fund, or the sufficiency of the amount to be
received therefor;
4.) The legality of the redemption of any Shares of
any Fund, or the propriety of the amount to be paid
therefor;
5.) The legality of the declaration or payment of
any dividend by the Trust in respect of Shares of any
Fund;
6.) The legality of any borrowing by the Trust on
behalf of the Trust or any Fund, using Securities as
collateral;
7.) Whether the Trust or a Fund is in compliance
with the 1940 Act, the regulations thereunder, the
provisions of the Trust's charter documents or by-laws, or
its investment objectives and policies as then in effect.
C. No Duty to Collect Amounts Due From Dividend and
Transfer Agent. The Custodian shall not be under any duty
or obligation to take action to effect collection of any
amount due to the Trust from any Dividend and Transfer
Agent of the Trust no
r to take any action to effect payment or distribution by
any Dividend and Transfer Agent of the Trust of any amount
paid by the Custodian to any Dividend and Transfer Agent of
the Trust in accordance with this Agreement.
D. No Enforcement Actions. Notwithstanding Section
D
of Article V, the Custodian shall not be under any duty or
obligation to take action, by legal means or otherwise, to
effect collection of any amount, if the Securities upon
which such amoun
t 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 Written Instructions and
(ii) it shall be assured to its satisfaction (including
prepayment thereof) of
reimbursement of its costs and expenses in connection with
any such action.
E. Authority to Use Agents and Sub-Custodians. The Trust
acknowledges and hereby authorizes the Custodian to hold
Securities through its various agents described in Appendix
C annexed hereto.
The Fund hereby represents that such authorization has been
duly approved by the Board of Trustees of the Trust as
required by the Act.
In addition, the Trust acknowledges that the Custodian
may appoint one or more financial institutions, as agent or
agents or as sub-custodian or sub-custodians, including,
but not limited to, banking institutions located in foreign
countries, for the p
urpose of holding Securities and moneys at any time owned
by the Fund. The Custodian shall not be relieved of any
obligation or liability under this Agreement in connection
with the appointment or activities of such agents or sub
custodians. Any such agent
or sub-custodian shall be qualified to serve as such for
assets of investment companies registered under the Act.
The Funds shall reimburse the Custodian for all costs
incurred by the Custodian in connection with opening
accounts with any such agents or s
ub-custodians. Upon request, the Custodian shall promptly
forward to the Trust any documents it receives from any
agent or sub-custodian appointed hereunder which may
assist trustees of registered investment companies to
fulfill their responsibilities under Rule 17f-5 of the
Act.
F. No Duty to Supervise Investments. 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 Trust are such as properly may
be held by the Trust
under the provisions of the Articles of Incorporation and
the Trust's By-Laws.
G. All Records Confidential. The Custodian shall
treat all records and other information relating to the
Trust and the assets of all Funds as confidential and
shall not disclose any such records or information to any
other person unless (i) th
e Trust shall have consented thereto in writing or (ii)
such disclosure is required by law.
H. Compensation of Custodian. The Custodian shall
be entitled to receive and the Trust agrees to pay to the
Custodian such compensation as shall be determined
pursuant to Appendix E attached hereto, or as shall be
determined pursuant to amendm
ents to Appendix E. The Custodian shall be entitled to
charge against any money held by it for the account of any
Fund, the amount of any of its fees, any loss, damage,
liability or expense, including counsel fees. The
expenses which the Custodian may char
ge against the account of a Fund include, but are not
limited to, the expenses of agents or sub-custodians
incurred in settling transactions involving the purchase
and sale of Securities of the Fund.
I. Reliance Upon Instructions. The Custodian shall
be entitled to rely upon any Proper Instructions. The
Trust agrees to forward to the Custodian Written
Instructions confirming Oral Instructions in such a manner
so that such Written Instruct
ions are received by the Custodian, whether by hand
delivery, telex, facsimile or otherwise, on the same
Business Day on which such Oral Instructions were given.
The Trust agrees that the failure of the Custodian to
receive such confirming instruct
ions shall in no way affect the validity of the
transactions or enforceability of the transactions hereby
authorized by the Trust. The Trust agrees that the
Custodian shall incur no liability to the Trust for acting
upon Oral Instructions given to the
Custodian hereunder concerning such transactions.
J. Books and Records. The Custodian will (i) set
up and maintain proper books of account and complete
records of all transactions in the accounts maintained by
the Custodian hereunder in such manner as will meet the
obligations of the Fund und
er the Act, with particular attention to Section 31
thereof and Rules 3la-1 and 3la-2 thereunder and those
records are the property of the Trust, and (ii) preserve
for the periods prescribed by applicable Federal statute
or regulation all
records required t
o be so preserved. All such books and records shall be
the property of the Trust, and shall be available, upon
request, for inspection by duly authorized officers,
employees or agents of the Trust and employees of the SEC.
K. Internal Accounting Control Systems. The
Custodian shall send to the Trust any report received on
the systems of internal accounting control of the
Custodian, or its agents or sub-custodians, as the Trust
may reasonably request from time to
time.
L. No Management of Assets By Custodian. The Custodian
performs only the services of a custodian and shall have
no responsibility for the management, investment or
reinvestment of the Securities or other assets from time
to time owned by any F
und. The Custodian is not a selling agent for Shares of
any Fund and performance of its duties as custodian shall
not be deemed to be a recommendation to any Fund's
depositors or others of Shares of the Fund as an
investment. The Custodian shall have no d
uties 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.
M. Assistance to Trust. The Custodian shall take
all reasonable action, that the Trust may from time to
time request, to assist the Trust in obtaining favorable
opinions from the Trust's independent accountants, with
respect to the Custodian's
activities hereunder, in connection with the preparation
of the Fund's Form N- IA, Form N-SAR, or other annual
reports to the SEC.
X. Xxxxx of Security Interest. The Trust hereby
pledges to and grants the Custodian a security interest in
the assets of any Fund to secure the payment of any
liabilities of the Trust to the Custodian, whether acting
in its capacity as Custodi
an or otherwise, or on account of money borrowed from the
Custodian. This pledge is in addition to any other pledge
of collateral by the Trust to the Custodian.
ARTICLE IX
Initial Term; Termination
A. Initial Term. This Agreement shall become effective
as
of its execution and shall continue in full force until
terminated as hereinafter provided.
B. Termination. Either party hereto may terminate
this Agreement after the Initial Term for any reason by
giving to the other party a notice in writing specifying
the date of such termination, which shall be not less than
ninety (90) days
after the date of giving of such notice. If such notice
is given by the Trust, it shall be accompanied by a copy
of a resolution of the Board of Trustees of the Trust,
certified by the Secretary of the Trust, electing to
terminate this Agreement and design
ating a successor custodian or custodians. In the event
such notice is given by the Custodian, the Trust shall, on
or before the termination date, deliver to the Custodian a
copy of a resolution of the Board of Trustees of the
Trust, certified by the S
ecretary, designating a successor custodian or custodians
to act on behalf of the Trust. In the absence of such
designation by the Trust, the Custodian may designate a
successor custodian which shall be a bank or trust company
having not less than $100,000
,000 aggregate capital, surplus, and undivided profits.
Upon the date set forth in such notice this Agreement
shall terminate, and the Custodian, provided that it has
received a notice of acceptance by the successor
custodian, shall deliver, on that date,
directly to the successor custodian all Securities and
moneys then owned by the Fund and held by it as Custodian.
Upon termination of this Agreement, the Trust shall pay to
the Custodian on behalf of the Trust such compensation as
may be due as of the date
of such termination. The Trust agrees on behalf of the
Trust that the Custodian shall be reimbursed for its
reasonable costs in connection with the termination of
this Agreement.
C. Failure to Designate Successor Trustee. If a
successor custodian is not designated by the Trust, or by
the Custodian in accordance with the preceding paragraph,
or the designated successor cannot or will not serve, the
Trust shall, upon
the delivery by the Custodian to the Trust of all
Securities (other than Securities held in the Book-Entry
System which cannot be delivered to the Trust) and moneys
then owned by the Trust, be deemed to be the custodian for
the Trust, and the Custodian sha
ll thereby be relieved of all duties and responsibilities
pursuant to this Agreement, other than the duty with
respect to Securities held in the Book-Entry System, which
cannot be delivered to the Trust, which shall be held by
the Custodian in accorance wi
th this Agreement.*
ARTICLE X
Force Majeure
Neither the Custodian nor the Trust 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 mal
function 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 transportatio
n; provided, however, that the Custodian, in the event of
a failure or delay, shall use its best efforts to
ameliorate the effects of any such failure or delay.
ARTICLE XI
Miscellaneous
A. Designation of Authorized Persons. Appendix A
sets forth the names and the signatures of all Authorized
Persons as of this date, as certified by the Secretary of
the Trust. The Trust agrees to furnish to the Custodian a
new Appendix A in f
orm similar to the attached Appendix A, if any present
Authorized Person ceases to be an Authorized Person or if
any other or additional Authorized Persons are elected or
appointed. Until such new Appendix A shall be received,
the Custodian shall be fully
protected in acting under the provisions of this Agreement
upon Oral Instructions or signatures of the then current
Authorized Persons as set forth in the last delivered
Appendix A.
B. Limitation of Personal Liability. No recourse
under any obligation of this Agreement or for any claim
based thereon shall be had against any organizer,
shareholder, officer, trustee, past, present or future as
such, of the Trust or of any p
redecessor or successor, either directly or through the
Trust or any such predecessor or successor, whether by
virtue of any constitution, statute or rule of law or
equity, or by the enforcement of any assessment or penalty
or otherwise; it being expres
sly agreed and understood that this Agreement and the
obligations thereunder are enforceable solely against the
Trust, and that no such personal liability whatever shall
attach to, or is or shall be incurred by, the organizers,
shareholders, officers, o
r trustees of the Trust or of any predecessor or successor,
or any of them as such. To the extent that any such
liability exists, it is hereby expressly waived and
released by the Custodian as a condition of, and as a
consideration for, the execution of th
is Agreement.
C. Authorization By Board. The obligations set
forth in this Agreement as having been made by the Trust
have been made by the Board of Trustees, acting as such
Trustees for and on behalf of the Trust, pursuant to the
authority vested in them u
nder the laws of the Commonwealth of Massachusetts, the
Articles of Incorporation and the By-Laws of the Trust.
This Agreement has been executed by Officers of the Trust
as officers, and not individually, and the obligations
contained herein are not bindin
g upon any of the Trustees, Officers, agents or holders of
shares, personally, but bind only the Trust.
D. Custodian's Consent to Use of Its Name. The
Trust shall review with the Custodian all provisions of
the Prospectus and any other documents (including
advertising material) specifically mentioning the
Custodian (other than merely by name and
address) and shall obtain the Custodian's consent prior
to the publication and/or dissemination or distribution
thereof.
E. Notices to Custodian. 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 a
t Star Bank Center, 000 Xxxxxx Xxxxxx, X. X. 0000,
Xxxxxxxxxx, Xxxx 00000, attention Mutual Fund Custody
Department, or at such other place as the Custodian may
from time to time designate in writing.
F. Notices to Trust. Any notice or other
instrument
in writing, authorized or required by this Agreement to be
given to the Trust shall be sufficiently given when
delivered to the Trust or on the second Business Day
following the time such not
ice is deposited in the U.S. mail postage prepaid and
addressed to the Trust at its office at 00000 Xxxxx
Xxxxxxx, Xxxxxxx, XX 00000 or at such other place as the
Trust may from time to time designate in writing.
G. Amendments In Writing. This Agreement, with the
exception of the Appendices, may not be amended or
modified in any manner except by a written agreement
executed by both parties with the same formality as this
Agreement, and authorized and a
pproved by a resolution of the Board of Trustees of the
Trust.
H. Successors and Assigns. 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 Trust or by the Custodia
n, and no attempted assignment by the Trust or the
Custodian shall be effective without the written consent
of the other party hereto.
I. Governing Law. This Agreement shall be
construed
in accordance with the laws of the State of Ohio.
J. Jurisdiction. Any legal action, suit or
proceeding to be instituted by either party with respect
to this Agreement shall be brought by such party
exclusively in the courts of the State of Ohio or in the
courts of the United States for t
he Southern District of Ohio, and each party, by its
execution of this Agreement, irrevocably (i) submits to
such jurisdiction and (ii) consents to the service of any
process or pleadings by first class U.S. mail, postage
prepaid and return receipt requeste
d, or by any other means from time to time authorized by
the laws of such jurisdiction.
K. Counterparts. 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.
L. Headings. The headings of paragraphs 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, 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: TRUST
Wexford Trust
By: /S Xxxxxx X. Xxxxxxxxxx
Title: Trustee / President
ATTEST:
CUSTODIAN:Star Bank, N.A.
By:/S STAR BANK
Title:______________________
_
APPENDIX A
Authorized Persons Specimen
Signatures
Chairman:
President: /S Xxxxxx X. Xxxxxxxxxx
Secretary: /S Xxxx Xxxxxxx
Treasurer: /S Xxxx X. Xxxxxx
APPENDIX B
Series of the TrustMuhlenkamp Fund
APPENDIX C
Agents of the Custodian
The following agents are employed currently by Star
Bank, N.A. for securities processing and control .The
Depository Trust Company (New York)
0 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
The Federal Reserve Bank Cincinnati and
Cleveland Branches
Bankers Trust Company
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
(For Foreign Securities and certain non-DTC eligible
