Exhibit 8
CUSTODY AGREEMENT
This agreement (the "Agreement") is entered into as of the
____ day of __________, 1997, by and between X.X. Xxxxxxxx and
Associates, (the "Corporation"), a corporation organized under
the laws of the State of Maryland and having its office at 0000
Xxxxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx 00000 acting for and on
behalf of _____________ (the "Fund"), which is operated and
maintained by the Corporation for the benefit of the holders of
shares of each Fund, and Star Bank, N.A. (the "Custodian"), a
national banking association having its principal office and
place of business at Star Bank Center, 000 Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxx 00000.
WHEREAS, the Fund and the Custodian desire to enter into
this Agreement to provide for the custody and safekeeping of the
assets of the Fund as required by the Investment Company Act of
1940, as amended (the "Act").
WHEREAS, the Fund hereby appoints the Custodian as custodian
of all the Fund's Securities and moneys at any time owned by the
Fund during the term of this Agreement (the "Fund Assets").
WHEREAS, the Custodian hereby accepts such appointment as
Custodian and agrees to perform the duties thereof as hereinafter
set forth.
THEREFORE, in consideration of the mutual promises
hereinafter set forth, the Fund and the Custodian agree as
follows:
ARTICLE I
Definitions
The following words and phrases, when used in this
Agreement, unless the context otherwise requires, shall have the
following meanings:
AUTHORIZED PERSON - the Chairman, President, Secretary,
Treasurer, Controller, or Senior Vice President of the Fund, or
any other person, whether or not any such person is an officer or
employee of the Fund, duly authorized by the Board Of Directors
of the Fund to give Oral Instructions and Written Instructions on
behalf of the Fund, and listed in the Certificate annexed hereto
as Appendix A, or such other Certificate as may be received by
the Custodian from time to time.
BOOK-ENTRY SYSTEM - the Federal Reserve Bank book-entry
system for United States Treasury securities and federal agency
securities.
DEPOSITORY - The Depository Trust Company ("DTC"), a limited
purpose trust company its successor(s) and its nominee(s) or any
other person or clearing agent.
DIVIDEND AND TRANSFER AGENT - the dividend and transfer
agent appointed, from time to time, pursuant to a written
agreement between the dividend and transfer agent and the Fund.
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 country
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 and
sold primarily outside of the United States.
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 corporate obligations where the purchase and sale of
such securities normally require settlement in federal funds or
their equivalent on the same day as such purchase and sale, all
of which mature in not more than thirteen (13) months.
OFFICERS - the Chairman, President, Secretary, Treasurer,
Controller, and Senior Vice President of the Fund listed in the
Certificate annexed hereto as Appendix A, or such other
Certificate as may be received by the Custodian from time to
time.
ORAL INSTRUCTIONS - verbal instructions received by the
Custodian from an Authorized Person (or from a person that the
Custodian reasonably believes in good faith to be an Authorized
Person) and confirmed by Written Instructions in such a manner
that such Written Instructions are received by the Custodian on
the business day immediately following receipt of such Oral
Instructions.
PROSPECTUS - the Fund'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, and any
certificates, receipts, warrants, or other instruments
representing rights to receive, purchase, or subscribe for the
same or evidencing or representing any other rights or interest
therein, or any property or assets.
WRITTEN INSTRUCTIONS - communication received in writing by
the Custodian from an Authorized Person.
ARTICLE II
DOCUMENTS AND NOTICES TO BE FURNISHED BY THE FUND
A. The following documents, including any amendments
thereto, will be provided contemporaneously with the execution of
the Agreement, to the Custodian by the Fund:
1. A copy of the Articles of Incorporation of the Fund
certified by the Secretary.
2. A copy of the By-Laws of the Fund certified by the
Secretary.
3. A copy of the resolution of the Board Of Directors
of the Fund 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
Fund setting forth the names and signatures of the
Officers of the Fund.
B. The Fund agrees to notify the Custodian in writing of
the appointment of any Dividend and Transfer Agent.
ARTICLE III
RECEIPT OF FUND ASSETS
A. During the term of this Agreement, the Fund will
eliver or cause to be delivered to the Custodian all moneys
constituting Fund Assets. The Custodian shall be entitled to
reverse any deposits made on the Fund's behalf where such
deposits have been entered and moneys are not finally collected
within 30 days of the making of such entry.
B. During the term of this Agreement, the Fund will
deliver or cause to be delivered to the Custodian all Securities
constituting Fund Assets. The Custodian will not have any duties
or responsibilities with respect to such Securities until
actually received by the Custodian.
C. As and when received, the Custodian shall deposit to
the account(s) of the Fund any and all payments for shares of the
Fund issued or sold from time to time as they are received from
the Fund's distributor or Dividend and Transfer Agent or from the
Fund itself.
ARTICLE IV
DISBURSEMENT OF FUND ASSETS
A. The Fund shall furnish to the Custodian a copy of the
resolution of the Board Of Directors of the Fund, certified by
the Fund's Secretary, either (i) setting forth the date of the
declaration of any dividend or distribution in respect of shares
of the Fund, the date of payment thereof, the record date as of
which 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 the Fund on a daily basis and authorizing the Custodian to
rely on a Certificate setting forth the date of the declaration
of any such dividend or distribution, the date of payment
thereof, the record date as of which 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 such resolution or
Certificate described above, the Custodian shall segregate such
amounts from moneys held for the account of the Fund so that they
are available for such payment.
B. Upon receipt of Written Instructions so directing it,
the Custodian shall segregate amounts necessary for the payment
of redemption proceeds to be made by the Dividend and Transfer
Agent from moneys held for the account of the Fund so that they
are available for such payment.
C. Upon receipt of a Certificate directing payment and
setting forth the name and address of the person to whom such
payment is to be made, the amount of such payment, and the
purpose for which payment is to be made, the Custodian shall
disburse amounts as and when directed from the Fund Assets. The
Custodian is authorized to rely on such directions and shall be
under no obligation to inquire as to the propriety of such
directions.
D. Upon receipt of a Certificate directing payment, the
Custodian shall disburse moneys from the Fund Assets in payment
of the Custodian's fees and expenses as provided in Article VIII
hereof.
ARTICLE V
CUSTODY OF FUND ASSETS
A. The Custodian shall open and maintain a separate bank
account or accounts in the United States in the name of the 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 the Fund may be deposited by the
Custodian to its credit as Custodian in the banking department of
the Custodian. Such moneys shall be deposited by the Custodian in
its capacity as such, and shall be withdrawable by the Custodian
only in such capacity.
B. The Custodian shall hold all Securities delivered to
it in safekeeping in a separate account or accounts maintained at
Star Bank, N.A. for the benefit of the Fund.
C. All Securities held which are issued or issuable only
in bearer form, shall be held by the Custodian in that form; all
other Securities held for the Fund shall be registered in the
name of the Custodian or its nominee. The Fund agrees to furnish
to the Custodian appropriate instruments to enable the Custodian
to hold, or deliver in proper form for transfer, any Securities
that it may hold for the account of the Fund and which may, from
time to time, be registered in the name of the Fund.
D. With respect to all Securities held for the Fund, the
Custodian shall on a timely basis (concerning items 1 and 2
below, as defined in the Custodian's Standards of Service Guide,
as amended from time to time, annexed hereto as Appendix C):
1.) Collect all income due and payable with respect to
such Securities,
2.) Present for payment and collect amounts payable
upon all Securities which may mature or be called,
redeemed, or retired, or otherwise become payable;
3.) Surrender Securities in temporary form for
definitive Securities; and
4.) Execute, as agent, any necessary declarations or
certificates of ownership under the Federal Income
tax laws or the laws of regulations of any other
taxing authority, including any foreign taxing
authority, now or hereafter in effect.
E. Upon receipt of a Certificate AND NOT OTHERWISE, the
Custodian shall:
1.) Execute and deliver to such persons as may be
designated in such Certificate proxies, consents,
authorizations, and any other instruments whereby
the authority of the Fund 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 the
terms of this Agreement such certificates of
deposit, interim receipts or other instruments or
documents as may be issued to it to evidence such
delivery;
4.) Make such transfers or exchanges of the assets of
the Fund and take such other steps as shall be
stated in said Certificate to be for the purpose of
effectuating any duly authorized plan of
liquidation, reorganization, merger, consolidation
or recapitalization of the Fund; and
5.) Deliver any Securities held for the Fund to the
depository agent for tender or other similar
offers.
F. The Custodian shall promptly deliver to the Fund all
notices, proxy material and executed but unvoted proxies
pertaining to shareholder meetings of Securities held by the
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 a Certificate or Written
Instruction.
G. The Custodian shall promptly deliver to the Fund all
information received by the Custodian and pertaining to
Securities held by the Fund with respect to tender or exchange
offers, calls for redemption or purchase, or expiration of
rights.
ARTICLE VI
PURCHASE AND SALE OF SECURITIES
A. Promptly after each purchase of Securities by the
Fund, the Fund shall deliver to the Custodian (i) with respect to
each purchase of Securities which are not Money Market
Securities, Written Instructions, and (ii) with respect to each
purchase of Money Market Securities, Written Instructions or Oral
Instructions, specifying with respect to each such purchase the,
1.) name of the issuer and the title of the Securities,
2.) principal amount purchased and accrued interest, if
any,
3.) date of purchase and settlement,
4.) purchase price per unit,
5.) total amount payable, and
6.) name of the person from whom, or the broker through
which, the purchase was made.
The Custodian shall, against receipt of Securities purchased by
or for the Fund, pay out of the Fund Assets, the total amount
payable to the person from whom or the broker through which the
purchase was made, provided that the same conforms to the total
amount payable as set forth in such Written Instructions or Oral
Instructions, as the case may be.
B. Promptly after each sale of Securities by the Fund, the
Fund shall deliver to the Custodian (i) with respect to each sale
of Securities which are not Money Market Securities, Written
Instructions, and (ii) with respect to each sale of Money Market
Securities, Written Instructions or Oral Instructions, specifying
with respect to each such sale the;
1.) name of the issuer and the title of the Securities,
2.) principal amount sold and accrued interest, if any,
3.) date of sale and settlement,
4.) sale price per unit,
5.) total amount receivable, and
6.) name of the person to whom, or the broker through
which, the sale was made.
The Custodian shall deliver the Securities against receipt
of the total amount receivable, provided that the same conforms
to the total amount receivable as set forth in such Written
Instructions or Oral Instructions, as the case may be.
C. On contractual settlement date, the account of 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.
D. Purchases and sales of Securities effected by the
Custodian will be made on a delivery versus payment basis. The
Custodian may, in its sole discretion, upon receipt of a
Certificate, elect to settle a purchase or sale transaction in
some other manner, but only upon receipt of acceptable
indemnification from the Fund.
E. The Custodian shall, upon receipt of a Written
Instructions so directing it, establish and maintain a segregated
account or accounts for and on behalf of the Fund. Cash and/or
Securities may be transferred into such account or accounts for
specific purposes, to-wit:
1.) in accordance with the provision of any agreement
among the Fund, the Custodian, and a broker-dealer
registered under the Securities and Exchange Act of
1934, as amended, and also a member of the National
Association of Securities Dealers (NASD) (or any
futures commission merchant registered under the
Commodity Exchange Act), relating to compliance
with the rules of the Options Clearing Corporation
and of any registered national securities exchange,
the Commodity Futures Trading Commission, any
registered contract market, or any similar
organization or organizations requiring escrow or
other similar arrangements in connection with
transactions by the Fund;
2.) for purposes of segregating cash or government
securities in connection with options purchased,
sold, or written by the Fund or commodity futures
contracts or options thereon purchased or sold by
the Fund;
3.) for the purpose of compliance by the fund with the
procedures required for reverse repurchase
agreements, firm commitment agreements, standby
commitment agreements, and short sales by Act
Release No. 10666, or any subsequent release or
releases or rule of the Securities and Exchange
Commission relating to the maintenance of
segregated accounts by registered investment
companies; and
4.) for other corporate purposes, only in the case of
this clause 4 upon receipt of a copy of a
resolution of the Board Of Directors of the Fund,
certified by the Secretary of the Fund, setting
forth the purposes of such segregated account.
F. Except as otherwise may be agreed upon by the parties
hereto, the Custodian shall not be required to comply with any
Written Instructions to settle the purchase of any Securities on
behalf of the Fund unless there is sufficient cash in the
account(s) at the time or to settle the sale of any Securities
from 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 Fund
payable on demand and bearing interest accruing from the date
such loan is made up to but not including the date such loan is
repaid at a rate per annum customarily charged by the Custodian
on similar loans.
ARTICLE VII
FUND INDEBTEDNESS
In connection with any borrowings by the Fund, the Fund will
cause to be delivered to the Custodian by a bank or broker
requiring Securities as collateral for such borrowings (including
the Custodian if the borrowing is from the Custodian), a notice
or undertaking in the form currently employed by such bank or
broker setting forth the amount of collateral. The Fund shall
promptly deliver to the Custodian a Certificate specifying with
respect to each such borrowing: (a) the name of the bank or
broker, (b) the amount and terms of the borrowing, which may be
set forth by incorporating by reference an attached promissory
note duly endorsed by the Fund, or a loan agreement, (c) the
date, and time if known, on which the loan is to be entered into,
(d) the date on which the loan becomes due and payable, (e) the
total amount payable to the Fund on the borrowing date, and (f)
the description of the Securities securing the loan, including
the name of the issuer, the title and the number of shares or the
principal amount. The Custodian shall deliver on the borrowing
date specified in the Certificate the required collateral against
the lender's delivery of the total loan amount then payable,
provided that the same conforms to that which is described in the
Certificate. The Custodian shall deliver, in the manner directed
by the Fund, such Securities as additional collateral, as may be
specified in a Certificate, to secure further any transaction
described in this Article VII. The Fund shall cause all
Securities released from collateral status to be returned
directly to the Custodian and the Custodian shall receive from
time to time such return of collateral as may be tendered to it.
The Custodian may, at the option of the lender, keep such
collateral in its possession, subject to all rights therein given
to the lender because of the loan. The Custodian may require such
reasonable conditions regarding such collateral and its dealings
with third-party lenders as it may deem appropriate.
ARTICLE VIII
CONCERNING THE CUSTODIAN
A. Except as otherwise provided herein, the Custodian shall
not be liable for any loss or damage resulting from its action or
omission to act or otherwise, except for any such loss or damage
arising out of its own gross negligence or willful misconduct.
The Fund 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 Fund's duties hereunder or any other action or inaction of
the Fund or its Directors, officers, employees or agents, except
such as may arise from the negligent action, omission, willful
misconduct or breach of this Agreement by the Custodian. The
Custodian may, with respect to questions of 1aw, apply for and
obtain the advice and opinion of counsel, at the expense of the
Fund, and shall be fully protected with respect to anything done
or omitted by it in good faith in conformity with the advice or
opinion of counsel. The provisions under this paragraph shall
survive the termination of this Agreement.
B. Without limiting the generality of the foregoing, the
Custodian, acting in the capacity of Custodian hereunder, shall
be under no obligation to inquire into, and shall not be liable
for:
1.) The validity of the issue of any Securities
purchased by or for the account of the 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 the 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
the Fund, or the sufficiency of the amount to be
received therefor;
4.) The legality of the redemption of any shares of the
Fund, or the propriety of the amount to be paid
therefor;
5.) The legality of the declaration or payment of any
dividend by the Fund in respect of shares of the
Fund;
6.) The legality of any borrowing by the Fund on behalf
of the Fund, using Securities as collateral;
C. The Custodian shall not be under any duty or obligation
to take action to effect collection of any amount due to the Fund
from any Dividend and Transfer Agent of the Fund nor to take any
action to effect payment or distribution by any Dividend and
Transfer Agent of the Fund of any amount paid by the Custodian to
any Dividend and Transfer Agent of the Fund in accordance with
this Agreement.
D. Notwithstanding Section D of Article V, the Custodian
shall not be under any duty or obligation to take action to
effect collection of any amount, if the Securities upon which
such amount is payable are in default, or if payment is refused
after due demand or presentation, unless and until (i) it shall
be directed to take such action by a Certificate and (ii) it
shall be assured to its satisfaction (including prepayment
thereof) of reimbursement of its costs and expenses in connection
with any such action.
E. The Fund acknowledges and hereby authorizes the
Custodian to hold Securities through its various agents described
in Appendix B annexed hereto. The Fund hereby represents that
such authorization has been duly approved by the Board Of
Directors of the Fund as required by the Act. The Custodian
acknowledges that although certain Fund Assets are held by its
agents, the Custodian remains primarily liable for the
safekeeping of the Fund Assets.
In addition, the Fund 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
purpose 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. Upon request, the
Custodian shall promptly forward to the Fund any documents it
receives from any agent or sub-custodian appointed hereunder
which may assist trustees of registered investment companies
fulfill their responsibilities under Rule 17f-5 of the Act.
F. The Custodian shall not be under any duty or
obligation to ascertain whether any Securities at any time
delivered to or held by it for the account of the Fund are such
as properly may be held by the Fund under the provisions of the
Articles of Incorporation and the Fund's By-Laws.
G. The Custodian shall treat all records and other
information relating to the Fund and the Fund Assets as
confidential and shall not disclose any such records or
information to any other person unless (i) the Fund shall have
consented thereto in writing or (ii) such disclosure is required
by law.
H. The Custodian shall be entitled to receive and the
Fund agrees to pay to the Custodian such compensation as shall be
determined pursuant to Appendix D attached hereto, or as shall be
determined pursuant to amendments to such Appendix D. The
Custodian shall be entitled to charge against any money held by
it for the account of the Fund, the amount of any of its fees,
any loss, damage, liability or expense, including counsel fees.
The expenses which the Custodian may charge against the account
of the 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. The Custodian shall be entitled to rely upon any Oral
Instructions and any Written Instructions. The Fund agrees to
forward to the Custodian Written Instructions conforming Oral
Instructions in such a manner so that such Written Instructions
are received by the Custodian, whether by hand delivery,
facsimile or otherwise, on the same business day on which such
Oral Instructions were given. The Fund agrees that the failure of
the Custodian to receive such confirming instructions shall in no
way affect the validity of the transactions or enforceability of
the transactions hereby authorized by the Fund. The Fund agrees
that the Custodian shall incur no liability to the Fund for
acting upon Oral Instructions given to the Custodian hereunder
concerning such transactions.
J. The Custodian will (i) set up and maintain proper
books of account and complete records of all transactions in the
accounts maintained by the Custodian hereunder in such manner as
will meet the obligations of the Fund under the Act, with
particular attention to Section 31 thereof and Rules 31a-1 and
31a-2 thereunder and those records are the property of the Fund,
and (ii) preserve for the periods prescribed by applicable
Federal statute or regulation all records required to be so
preserved. All such books and records shall be the property of
the Fund, and shall be open to inspection and audit at reasonable
times and with prior notice by Officers and auditors employed by
the Fund.
K. The Custodian shall send to the Fund any report
received on the systems of internal accounting control of the
Custodian, or its agents or sub-custodians, as the Fund may
reasonably request from time to time.
L. The Custodian performs only the services of a
custodian and shall have no responsibility for the management,
investment or reinvestment of the Securities from time to time
owned by the Fund. The Custodian is not a selling agent for
shares of the Fund and performance of its duties as custodian
shall not be deemed to be a recommendation to the Fund's
depositors or others of shares of the Fund as an investment.
M. The Custodian shall take all reasonable action, that the
Fund may from time to time request, to assist the Fund in
obtaining favorable opinions from the Fund's independent
accountants, with respect to the Custodian's activities
hereunder, in connection with the preparation of the Fund's Form
N-1A, Form N-SAR, or other annual reports to the Securities and
Exchange Commission.
N. The Fund hereby pledges to and grants the Custodian a
security interest in any Fund Assets to secure the payment of any
liabilities of the Fund to the Custodian, whether acting in its
capacity as Custodian or otherwise, or on account of money
borrowed from the Custodian. This pledge is in addition to any
other pledge of collateral by the Fund to the Custodian.
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; 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, shall use its
best efforts to ameliorate the effects of such failure or delay.
ARTICLE X
TERMINATION
A. Either of the parties hereto may terminate this
Agreement for any reason by giving to the other party a notice in
writing specifying the date of such termination, which shall be
not less than ninety (90) days after the date of giving of such
notice. If such notice is given by the Fund, it shall be
accompanied by a copy of a resolution of the Board Of Directors
of the Fund, certified by the Secretary of the Fund, electing to
terminate this Agreement and designating a successor custodian or
custodians. In the event such notice is given by the Custodian,
the Fund shall, on or before the termination date, deliver to the
Custodian a copy of a resolution of the Board Of Directors of the
Fund, certified by the Secretary, designating a successor
custodian or custodians to act on behalf of the Fund. In the
absence of such designation by the Fund, 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 Fund shall pay to the Custodian on behalf of the
Fund such compensation as may be due as of the date of such
termination. The Fund agrees on behalf of the Fund that the
Custodian shall be reimbursed for its reasonable costs in
connection with the termination of this Agreement.
B. If a successor custodian is not designated by the
Fund, or by the Custodian in accordance with the preceding
paragraph, or the designated successor cannot or will not serve,
the Fund shall, upon the delivery by the Custodian to the Fund of
all Securities (other than Securities held in the Book-Entry
System which cannot be delivered to the Fund) and moneys then
owned by the Fund, be deemed to be the custodian for the Fund,
and the Custodian shall thereby be relieved of all duties and
responsibilities pursuant to this Agreement, other than the duty
with respect to Securities held in the Book-Entry System, which
cannot be delivered to the Fund, which shall be held by the
Custodian in accordance with this Agreement.
ARTICLE Xl
MISCELLANEOUS
A. Appendix A sets forth the names and the signatures of
all Authorized Persons, as certified by the Secretary of the
Fund. The Fund agrees to furnish to the Custodian a new Appendix
A in form similar to the attached Appendix A, if any present
Authorized Person ceases to be an Authorized Person or if any
other or additional Authorized Persons are elected or appointed.
Until such new Appendix A shall be received, the Custodian shall
be fully protected in acting under the provisions of this
Agreement upon Oral Instructions or signatures of the then
current Authorized Persons as set forth in the last delivered
Appendix A.
B. No recourse under any obligation of this Agreement or
for any claim based thereon shall be had against any organizer,
shareholder, Officer, Director, past, present or future as such,
of the Fund or of any predecessor or successor, either directly
or through the Fund or any such predecessor or successor, whether
by virtue of any constitution, statute or rule of law or equity,
or be the enforcement of any assessment or penalty or otherwise;
it being expressly agreed and understood that this Agreement and
the obligations thereunder are enforceable solely against the
Fund, and that no such personal liability whatever shall attach
to, or is or shall be incurred by, the organizers, shareholders,
Officers, Directors of the Fund or of any predecessor or
successor, or any of them as such. To the extent that any such
liability exists, it is hereby expressly waived and released by
the Custodian as a condition of, and as a consideration for, the
execution of this Agreement.
C. The obligations set forth in this Agreement as having
been made by the Fund have been made by the Board Of Directors,
acting as such Directors for and on behalf of the Fund, pursuant
to the authority vested in them under the laws of the State of
Maryland, the Articles of Incorporation and the By-Laws of the
Fund. This Agreement has been executed by Officers of the Fund as
officers, and not individually, and the obligations contained
herein are not binding upon any of the Directors, Officers,
agents or holders of shares, personally, but bind only the Fund.
D. Provisions of the Prospectus and any other documents
(including advertising material) specifically mentioning the
Custodian (other than merely by name and address) shall be
reviewed with the Custodian by the Fund prior to publication
and/or dissemination or distribution, and shall be subject to the
consent of the Custodian.
E. Any notice or other instrument in writing, authorized
or required by this Agreement to be given to the Custodian, shall
be sufficiently given if addressed to the Custodian and mailed or
delivered to it at its offices at Star Bank Center, 000 Xxxxxx
Xxxxxx, X. X. 0000, Xxxxxxxxxx, Xxxx 00000, attention Mutual Fund
Custody Department, or at such other place as the Custodian may
from time to time designate in writing.
F. Any notice or other instrument in writing, authorized
or required by this Agreement to be given to the Fund shall be
sufficiently given when delivered to the Fund or on the second
business day following the time such notice is deposited in the
U.S. mail postage prepaid and addressed to the Fund at its office
at 0000 Xxxxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx 00000 or at such
other place as the Fund may from time to time designate in
writing.
G. This Agreement, with the exception of the Appendices, may
not be amended or modified in any manner except by a written
agreement executed by both parties with the same formality as
this Agreement, and authorized and approved by a resolution of
the Board Of Directors of the Fund.
H. This Agreement shall extend to and shall be binding
upon the parties hereto, and their respective successors and
assigns; provided, however, that this Agreement shall not be
assignable by the Fund or by the Custodian, and no attempted
assignment by the Fund or the Custodian shall be effective
without the written consent of the other party hereto.
I. This Agreement shall be construed in accordance with the
laws of the State of Ohio.
J. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original,
but such counterparts shall, together, constitute only one
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective Officers, thereunto
duly authorized as of the day and year first above written.
ATTEST: X.X. Xxxxxxxx and Associates
_______________________________ By:____________________________
Title:_________________________
ATTEST: Star Bank, N.A.
_______________________________ By:____________________________
Title:_________________________
APPENDIX A
Authorized Persons Specimen Signatures
Chairman: ________________________ ________________________
President: ________________________ ________________________
Secretary: ________________________ ________________________
Treasurer: ________________________ ________________________
Controller: ________________________ ________________________
Adviser Employees: ________________________ ________________________
________________________ ________________________
________________________ ________________________
Transfer Agent/Fund
Accountant
Employees
________________________ ________________________
________________________ ________________________
________________________ ________________________
________________________ ________________________
APPENDIX B
The following agents are employed currently by Star Bank, N.A. for
securities processing and control . . .
The Depository Trust Company (New York)
0 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
The Federal Reserve Bank
Cincinnati and Cleveland Branches
Bankers Trust Company
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
(For Foreign Securities and certain non-DTC eligible
Securities)
APPENDIX C
Standards of Service Guide
Standards of Service Guide
STAR BANK, N.A.
MAIL LOCATION #6118,
000 XXXXXX XXXXXX,
XXXXXXXXXX, XX 00000
October, 1997
Star Bank, N.A.
Standards of Service Guide
Star Bank, N.A. is committed to providing superior quality service to
all customers and their agents at all times. We have compiled this guide
as a tool for our clients to determine our standards for the processing
of security settlements, payment collection, and capital change
transactions. Deadlines recited in this guide represent the times
required for Star Bank to guarantee processing. Failure to meet these
deadlines will result in settlement at our client's risk. In all cases,
Star Bank will make every effort to complete all processing on a timely
basis.
Star Bank is a direct participant of the Depository Trust Company, a
direct member of the Federal Reserve Bank of Cleveland, and utilizes the
Bankers Trust Company as its agent for ineligible and foreign securities.
For corporate reorganizations, Star Bank utilizes SKI's Reorg
Source, Financial Information, Inc., XCITEK, DTC Important Notices, and
the Wall Street Journal.
For bond calls and mandatory puts, Star Bank utilizes SKI's Bond
Source, Xxxxx Information Systems, Standard & Poor's Corporation, and DTC
Important Notices. Star Bank will not notify clients of optional put
opportunities.
Any securities delivered free to Star Bank or its agents must be
received three (3) business days prior to any payment or settlement in
order for the Star Bank standards of service to apply.
Should you have any questions regarding the information contained in
this guide, please feel free to contact your account representative.
THE INFORMATION CONTAINED IN THIS STANDARDS O/SERVICE
GUIDE IS SUBJECT TO CHANGE. SHOULD ANY CHANGES BE
MADE STAR BANK WILL PROVIDE YOU WITH AN UPDATED COPY
OF ITS STANDARDS OF SERVICE GUIDE.
Star Bank Corporate Reorganization Standards
Deadline for Client Instructions to
Type of Action Notification to Client Star Bank Transaction Posting
-----------------------------------------------------------------------------------------------------------------------------------
Rights, Warrants, and Optional Later of 10 Business days prior 5 business days prior to expiration Upon receipt
Mergers to expiration or receipt of
notice
Mandatory Puts with Option to Later of 10 business days prior 5 business days prior to expiration Upon receipt
Retain to expiration or receipt of
notice
Class Actions 10 business days prior to 5 business days prior to expiration Upon receipt
expiration date
Voluntary Tenders, Exchanges, Later of 10 business days prior 5 business days prior to expiration Upon receipt
and Conversions to expiration or receipt of
notice
Mandatory Puts, Defaults, At posting of funds or None Upon receipt
Liquidations, Bankruptcies, securities received
Stock Splits, Mandatory
Exchanges
Full and Partial Calls Later of 10 business days prior None Upon receipt
to expiration or receipt of
notice
NOTE: Fractional shares/par amounts resulting from any of the
above will be sold.
Star Bank Security Settlement Standards
TRANSACTION TYPE INSTRUCTIONS DEADLINES* DELIVERY INSTRUCTIONS
DTC 1:30 P.M. on Settlement Date DTC Participant #0000
Xxxxx Xxxx XX 00000
Institutional #___________
For Account #_____________
Federal Reserve Book Entry 12:30 P.M. on Settlement Date Federal Reserve Bank of
Cinti/Trust for Star
Bank, N.A. ABA# 000000000
For Account #____________
Federal Reserve Book Entry (Repurchase 1:00 P.M. on Settlement Date Federal Reserve Bank of
Agreement Collateral Only) Cinti/Spec for Star Bank,
N.A. ABA# 000000000
For Account #_________
PTC Securities 12:00 P.M. on Settlement Date PTC For Account BTRST/CUST
(GNMA Book Entry) Sub Account: Star Bank,
N.A. #090334
Physical Securities 9:30 A.M. EST on Settlement Date Bankers Trust Company
(for Deliveries, by 4:00 P.M. on Settlement 00 Xxxx Xxxxxx 0xx Xxxxx,
Date minus 1) Window 43 for
Star Bank Account #090334
CEDEL/EURO-CLEAR 11:00 A.M. on Settlement Date minus 2 Euroclear Via Cedel Bridge
In favor of Bankers Trust
Comp Cedel 53355
For Star Bank Account
#501526354
Cash Wire Transfer 3:00 P.M. Star Bank, X.X.
Xxxxx/Trust ABA# 000000000
Credit Account #0000000
Further Credit to ________
Account # ________________
* All times listed are Eastern Standard Time.
Star Bank Payment Standards
SECURITY TYPE INCOME PRINCIPAL
Equities Payable Date
Municipal Bonds* Payable Date Payable Date
Corporate Bonds* Payable Date Payable Date
Federal Reserve Bank Book Entry* Payable Date Payable Date
PTC GNMA's (P&I) Payable Date + 1 Payable Date + 1
CMOs *
DTC Payable Date + 1 Payable Date + 1
Bankers Trust Payable Date + 1 Payable Date + 1
SBA Loan Certificates When Received When Received
Unit Investment Trust Certificates* Payable Date Payable Date
Certificates of Deposit* Payable Date + 1 Payable Date + 1
Limited Partnerships When Received When Received
Foreign Securities When Received When Received
*Variable Rate Securities
Federal Reserve Bank Book Entry Payable Date Payable Date
DTC Payable Date +1 Payable Date +1
Bankers Trust Payable Date +1 Payable Date +1
NOTE: If a payable date falls on a weekend or bank holiday, payment
will be made on the immediately following business day.
APPENDIX D
Schedule of Compensation
STAR BANK N.A.
PROPOSED DOMESTIC CUSTODY FEE SCHEDULE FOR X. X. XXXXXXXX & ASSOCIATES
Star Bank, N.A., as Custodian, will receive monthly compensation for
services according to the terms of the following Schedule:
I. PORTFOLIO TRANSACTION FEES:
(a) For each repurchase agreement transaction $ 7.00
(b) For each portfolio transaction processed $ 9.00
through DTC or Federal Reserve
(c) For each portfolio transaction processed $25.00
through our New York custodian
(d) For each GNMA/Amortized Security Purchase $16.00
(e) For each GNMA Prin/Int Paydown, GNMA Sales $8.00
(f) For each option/future contract written, $40.00
exercised or expired
(g) For each Cedel/Euro clear transaction $80.00
(h) For each Disbursement (Fund expenses only) $5.00
A transaction is a purchase/sale of a security, free receipt/free
delivery (excludes initial conversion), maturity, tender or exchange:
II. MARKET VALUE FEE
Based upon an annual rate of: XXXXXXX
.0000 (0 Xxxxx Xxxxxx) on First $10
.0001 (1 Basis Point) on Next $20
.00008 (.8 Basis Point) on Balance
III. MONTHLY MINIMUM FEE-PER FUND $300.00
IV. OUT-OF-POCKET EXPENSES
The only out-of-pocket expenses charged to your account will be
shipping fees or transfer fees.
V. XXX DOCUMENTS
Per Shareholder/year to hold each XXX Document $ 8.00
VI. EARNINGS CREDITS
On a monthly basis any earnings credits generated from uninvested
custody balances will be applied against any cash management service
fees generated. Earnings credits are based on a Cost of Funds Tiered
Earnings Credit Rate.
