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Exhibit 8
CUSTODY AGREEMENT
Agreement made as of the 23rd day of September 1993, between
XXXXXXXX-XXXXXXXX CASH RESERVES TRUST, (the "Trust"), a business trust organized
under the laws of Massachusetts and having its office at 000 Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxx 00000 acting for and on behalf of Xxxxxxxx -XxXxxxxx U. S.
Government Reserves (the "Fund"), which is operated and maintained by the Trust
for the benefit of the holders of shares of the 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, which Agreement provides for the furnishing of custodian services to the
Fund. WITNESSETH that for and in consideration of the mutual promises
hereinafter set forth the Trust, on behalf of the Fund, and the Custodian agree
as follows:
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and phrases, unless
the context otherwise requires, shall have the following meanings:
1. "Authorized Person" shall be deemed to include the Chairman,
President, Secretary, Treasurer, Controller, and the Senior Vice President, or
any other person, whether or not any such person is an officer or employee of
the Trust, duly authorized by the Board of Trustees of the Trust 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, subject in each case to any
limitations on the authority of such person as set forth in Appendix A or any
such Certificate.
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2. "Book-Entry System" shall mean the Federal Reserve/Treasury
book-entry system for United States and federal agency securities, its successor
or successors and its nominee or nominees, provided the Custodian has received a
certified copy of a resolution of Board of Trustees of the Trust specifically
approving deposits in the Book-Entry System.
3. "Certificate" shall mean any notice, instruction, or other
instrument in writing, authorized or required by this Agreement to be given to
the Custodian which Is signed on behalf of the Fund by an Officer of the Trust
and is actually received by the Custodian.
4. "Depository" shall mean The Depository Trust Company ("DTC"), a
clearing agency registered with the Securities and Exchange Commission, its
successor or successors and its nominee or nominees. The term "Depository" shall
further mean and include any other person or clearing agency authorized to act
as a depository under the Investment Company Act of 1940, Its successor or
successors and its nominee or nominees, provided that the Custodian has received
a certified copy of a resolution of the Board of Trustees of the Trust
specifically approving such other person or clearing agency as a depository.
5. "Dividend and Transfer Agent" shall mean the dividend and transfer
agent active, from time to time, in such capacity pursuant to a written
agreement with the Fund, changes in which the Trust shall immediately report to
the Custodian in writing.
6. "Money Market Security" shall be deemed to include, without
limitation, 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 and reverse repurchase agreements with respect
to the same) and bank time deposits of domestic banks that are members of
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Federal Deposit Insurance Trust, 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 or sale.
7. "Officers" shall be deemed to include the Chairman, the President,
the Secretary, the Treasurer, the Controller, and Senior Vice President of the
Trust listed in the Certificate annexed hereto as Appendix A or such other
Certificate as may be received by the Custodian from time to time.
8. "Oral Instructions" shall mean oral instructions actually received
by the Custodian from an Authorized Person (or from a person which the Custodian
reasonably believes in good faith to be an Authorized Person) and confirmed by
Written Instructions from Authorized Persons in such manner so that such Written
Instructions are received by the Custodian on the next business day.
9. "Prospectus" shall mean the Fund's currently effective prospectus
and statement of additional information, as filed with and declared effective by
the Securities and Exchange Commission.
10. "Security or Securities" shall mean Money Market Securities, common
or preferred stocks, options, bonds, debentures, corporate debt securities,
notes, mortgages or other obligations, 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.
11. "Written Instructions" shall mean communication actually received
by the Custodian from one Authorized Person or from one person which the
Custodian reasonably believes in good faith to be an Authorized Person in
writing or by telex or any other such system whereby the receiver of such
communication Is able to verify by codes or otherwise with a reasonable degree
of certainty the authenticity of the senders of such communication.
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ARTICLE II
APPOINTMENT OF CUSTODIAN
1. The Trust, acting for and on behalf of the Fund, hereby constitutes
and appoints the Custodian as custodian of all the Securities and monies at any
time owned by the Fund during the period of this Agreement (the "Fund Assets").
2. The Custodian hereby accepts appointment as such Custodian and
agrees to perform the duties thereof as hereinafter set forth.
ARTICLE III
DOCUMENTS TO BE FURNISHED BY THE TRUST
The Trust hereby agrees to furnish to the Custodian the following documents:
1. A copy of its Agreement and Articles of incorporation (the "Articles
of Incorporation") certified by its Secretary.
2. A copy of its By-Laws certified by its Secretary.
3. A copy of the resolution of its Board of Trustees appointing the
Custodian certified by its Secretary.
4. A copy of the most recent Prospectus of the Trust.
5. A Certificate of the President and Secretary setting forth the names
and signatures of the present Officers of the Trust.
ARTICLE IV
CUSTODY OF CASH AND SECURITIES
1. The Trust will deliver or cause to be delivered to the Custodian all
Fund Assets, including cash received for the Issuance of Its shares, at any time
during the period of this Agreement. The Custodian will not be responsible for
such Fund Assets until actually received by It. Upon such receipt, the Custodian
shall hold in safekeeping and physically segregate at all times from the
property of any other persons, firms or corporations all Fund
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Assets received by it from or for the account of the Fund. The Custodian will
be entitled to reverse any credits made on the Fund's behalf where such credits
have been previously made and monies are not finally collected within 90 days of
the making of such credits, unless the Custodian has been negligent or has
engaged in willful misconduct with respect thereto. The Custodian is hereby
authorized by the Trust, acting on behalf of the Fund, to actually deposit any
Fund Assets in the Book-Entry System or in a Depository, provided, however, that
the Custodian shall always be accountable to the Trust for the Fund Assets so
deposited. Fund Assets deposited in the Book-Entry System or the Depository will
be represented in accounts which include only assets held by the Custodian for
customers, including but not limited to accounts in which the Custodian acts in
a fiduciary or representative capacity.
2. The Custodian shall credit to a separate account or accounts in the
name of the Fund all monies received by it for the account of the Fund, and
shall disburse the same only:
(a) In payment for Securities purchased for the account of the
Fund, as provided in Article V;
(b) In payment of dividends or distributions, as provided in
Article VI hereof;
(c) In payment of original issue or other taxes, as provided
in Article VII hereof;
(d) In payment for shares of the Fund redeemed by it, as
provided in Article VII hereof;
(e) Pursuant to Certificates (i) directing payment and setting
forth the name and address of the person to whom the payment Is to be
made, the amount of such payment and the purpose for which payment is
to be made (the Custodian not being required to question such
direction) or (ii) if reserve
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requirements are established for the Fund by law or by valid
regulation, directing the Custodian to deposit a specified amount of
collected funds in the form of U.S. dollars at a specified Federal
Reserve Bank and stating the purpose of such deposit; or
(f) In reimbursement of the expenses and liabilities of the
Custodian, as provided in paragraph 10 of Article IX hereof.
3. Promptly after the close of business on each day the fund is open
and valuing its portfolio, the Custodian shall furnish the Trust with a detailed
statement of monies held for the Fund under this Agreement and with
confirmations and a summary of all transfers to or from the account of the Fund
during said day. Where Securities are transferred to the account of the Fund
without physical delivery, the Custodian shall also identify as belonging to the
Fund a quantity of Securities in a fungible bulk of Securities registered in the
name of the Custodian (or its nominee) or shown on the Custodian's account on
the books of the Book-Entry System or the Depository. At least monthly and from
time to time, the Custodian shall furnish the Trust with a detailed statement of
the Securities held for the Fund under this Agreement.
4. All Securities held for the Fund, which are issued or issuable only
in bearer form, except such Securities as are held in the Book-Entry System,
shall be held by the Custodian in that form; all other Securities held for the
Fund -may be registered in the name of the Fund, in the name of any duly
appointed registered nominee of the Custodian as the Custodian may from time to
time determine, or in the name of the Book-Entry System or the Depository or
their successor or successors, or their nominee or nominees. The Trust agrees to
furnish to the Custodian appropriate instruments to enable the Custodian to hold
or deliver in proper form for transfer, or to register in the name of its
registered nominee or in the name of the Book-Entry System or the Depository,
any Securities which it may hold for -the account of the Fund and
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which may from time to time be registered in the name of the Fund. The
Custodian shall hold all such Securities which are not held in the Book-Entry
System by the Depository or a Sub-Custodian in a separate account or accounts in
the name of the Fund segregated at all times from those of any other fund
maintained and operated by the Trust and from those of any other person or
persons.
5. Unless otherwise instructed to the contrary by a Certificate, the
Custodian shall with respect to all Securities held for the Fund in accordance
with this Agreement:
(a) Collect all income due or payable to the Fund with respect
to the Fund Assets;
(b) Present for payment and collect the amount payable upon
all Securities which may mature or be called, redeemed, or retired, or
otherwise become payable;
(c) Surrender Securities in temporary form for definitive
Securities;
(d) Execute, as Custodian, any necessary declarations or
certificates of ownership under the Federal income tax laws or the laws
or regulations of any other taxing authority, including any foreign
taxing authority, now or hereafter in effect; and
(e) Hold directly, or through the Book-Entry System or the
Depository with respect to Securities therein deposited, for the
account of the Fund all rights and similar securities Issued with
respect to any Securities held by the Custodian hereunder.
6. Upon receipt of a Certificate and not otherwise, the Custodian
directly or through the use of the Book-Entry System or the Depository shall:
(a) Execute and deliver to such persons as may be designated
In such Certificate proxies, consents, authorizations, and any other
instruments
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whereby the authority of the Fund as owner of any Securities may be
exercised;
(b) Deliver any Securities held for the Fund in exchange for
other Securities or cash issued or paid in connection with the
liquidation, reorganization, refinancing, merger, consolidation or
recapitalization of any corporation, or the exercise of any conversion
privilege;
(c) Deliver any Securities held for the account of the Fund to
any protective committee, reorganization committee or other person in
connection with the reorganization, refinancing, merger, consolidation,
recapitalization or sale of assets of any corporation, and receive and
hold under the terms of this Agreement such certificates of deposit,
interim receipts or other instruments or documents as may be issued to
it to evidence such delivery; and
(d) 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.
7. 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 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.
8. The Custodian shall promptly deliver to the Trust all material
received by the Custodian and pertaining to Securities held by the Fund with
respect to tender or exchange offers, calls for redemption or purchase,
expiration of rights, name changes, stock splits and stock dividends, or any
other activity involving ownership rights in such Securities.
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ARTICLE V
PURCHASE AND SALE OF INVESTMENTS OF THE FUND
1. Promptly after each purchase of Securities by the Fund, the Trust
shall deliver to the Custodian (i) with respect to each purchase of Securities
which are not Money Market Securities, a Certificate or Written Instructions,
and (ii) with respect to each purchase of Money Market Securities, Written
Instructions, a Certificate or Oral Instructions, specifying with respect to
each such purchase: (a) the name of the Issuer and the title of the Securities,
(b) the principal amount purchased and accrued interest, If any, (c) the date of
purchase and settlement, (d) the purchase price per unit, (e) the total amount
payable upon such purchase and (f) the name of the person from whom or the
broker through whom the purchase was made. The Custodian shall upon receipt of
Securities purchased by or for the Fund, pay out of the monies held for the
account of the Fund the total amount payable to the person from whom or the
broker through whom the purchase was made, provided that the same conforms to
the total amount payable as set forth in such Certificate, Written Instructions
or Oral Instructions.
2. Promptly after each sale of Securities by the Trust for the account
of the Fund, the Trust shall deliver to the Custodian (I) with respect to each
sale of Securities which are not Money Market Securities, a Certificate or
Written Instructions, and (ii) with respect to each sale of Money Market
Securities, Written Instructions, a Certificate or Oral Instructions, specifying
with respect to each such sale: (a) the name of the issuer and the title of the
Security, (b) the principal amount sold, and accrued interest, if any, (c) the
date of sale, (d) the sale price per unit, (e) the total amount payable to the
Fund upon such sale and (f) the name of the broker through whom or the person to
whom the sale was made.. The Custodian shall deliver the Securities upon receipt
of the total amount payable to the Fund upon such sale, provided
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that the same conforms to the total amount payable as set forth in such
Certificate, Written Instructions or Oral Instructions. Subject to the
foregoing, the Custodian may accept payment in such form as shall be
satisfactory to it, and may deliver Securities and arrange for payment in
accordance with the customs prevailing among dealers in Securities.
3. Promptly after the time as of which the Trust, on behalf of the
Fund, either -
(a) writes an option on Securities or writes a covered put
option in respect of a Security, or
(b) notifies the Custodian that Its obligations in respect of
any put or call option, as described in the Trust's Prospectus, require
that the Fund deposit Securities or additional Securities with the
Custodian, specifying the type and value of Securities required to be
so deposited, or
(c) notifies the Custodian that its obligations in respect of
any other Security, as described in the Fund's Prospectus, require that
the Fund deposit Securities or additional Securities with the
Custodian, specifying the type and value of Securities required to be
so deposited the Custodian will cause to be segregated or Identified as
deposited, pursuant to the Fund's obligations as set forth in the
Prospectus, Securities of such kinds and having such aggregate values
as are required to meet the Fund's obligations in respect thereof.
The Trust will provide to the Custodian, as of the end of each trading
day, the market value of the Fund's option liability and the market value of its
portfolio of common stocks.
4. On contractual settlement date, the account of the Fund will be
charged for all purchases settling on that day, regardless of whether or not
delivery Is made. On contractual settlement date, sale proceeds will likewise be
credited to the account of the Fund Irrespective of delivery.
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In the case of "sale fails", the Custodian may request the assistance of the
Fund in making delivery of the failed Security.
ARTICLE VI
PAYMENT OF DIVIDENDS OR DISTRIBUTIONS
1. The Trust shall furnish to the Custodian a copy of the resolution of
the Board of Trustees, certified by the 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 of the Fund 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 Written
Instructions or 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.
2. Upon the payment date specified in such resolution, Written
Instructions or Certificate, as the case may be, the Custodian shall arrange for
such payments to be made by the Dividend and Transfer Agent out of monies held
for the account of the Fund.
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ARTICLE VII
SALE AND REDEMPTION OF SHARES OF THE FUND
1. The Custodian shall receive and credit to the account of the Fund
such payments for shares of the Fund issued or sold from time to time as are
received from the distributor for the Fund's shares, from the Dividend and
Transfer Agent of the Fund, or from the Trust.
2. Upon receipt of Written Instructions, the Custodian shall arrange
for payment of redemption proceeds to be made by the Dividend and Transfer Agent
out of the monies held for the account of the Fund in the total amount specified
in the Written Instructions.
3. Notwithstanding the above provisions regarding the redemption of any
shares of the Fund, whenever shares of the Fund are redeemed pursuant to any
check redemption privilege which may from time to time be offered by the Fund,
the Custodian, unless otherwise subsequently instructed by Written Instructions
shall, upon receipt of any Written Instructions setting forth that the
redemption Is in good form for redemption in accordance with the check
redemption procedure, honor the check presented as part of such check redemption
privilege out of the money held in the account of the Fund for such purposes.
ARTICLE VIII
INDEBTEDNESS
In connection with any borrowings, the Trust, on behalf of the Fund, will
cause to be delivered to the Custodian by a bank or broker (including the
Custodian, If the borrowing is from the Custodian), requiring Securities as
collateral for such borrowings, a notice or undertaking in the form currently
employed by any such bank or broker setting forth the amount which such bank or
broker will loan to the Fund against delivery of a stated amount of
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collateral. The Trust 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
Trust, acting on behalf of the Fund, or other 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 i the Fund on
the borrowing date, (f) the market value of Securities collateralizing the loan,
including the name of the Issuer, the title and the number of shares or the
principal amount of any particular Securities and (g) a statement that such loan
is conformance with the Investment Company Act of 1940 and the Fund's then
current Prospectus. The Custodian shall deliver on the borrowing date specified
in a Certificate the specified collateral and the executed promissory note, if
any, against delivery by the lending bank or broker of the total amount of the
loan payable provided that the same conforms to the total amount payable as set
forth in the Certificate. The Custodian may, at the option of the lending bank
or broker, keep such collateral in its possession, but such collateral shall be
subject to all rights therein given the lending bank or broker, by virtue of any
promissory note or loan agreement. The Custodian shall deliver in the manner
directed by the Trust from time to time such Securities as additional collateral
as may be specified in a Certificate to collateralize further any transaction
described in this paragraph. The 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 tendered to
it. In the event that the Trust fails to specify in a Certificate or Written
Instructions the name of the Issuer, the title and number of shares or the
principal amount of any particular Securities to be delivered as collateral by
the Custodian, the
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Custodian shall not be under any obligation to deliver any Securities. The
Custodian may require such reasonable conditions with respect to such collateral
and its dealings with third - party lenders as it may deem appropriate.
ARTICLE IX
CONCERNING THE CUSTODIAN
1. The Custodian shall use reasonable care in the performance of its
duties hereunder, and, except as otherwise provided herein, the Custodian shall
not be liable for any loss or damage, including counsel fees, resulting from its
action or omission to act or otherwise, except for any such loss or damage
arising out of Its own negligence, bad faith, or willful misconduct or that of
its officers, employees, or agents. The Trust, on behalf of the Fund and only
from Fund Assets (or insurance purchased by the Trust with respect to its
liabilities on behalf of the Fund hereunder), shall defend, indemnify and hold
harmless the Custodian and its Trustees, 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 with
respect to the Fund hereunder or any other action or Inaction of the Trust or
Its Trustees, Officers, Employees or Agents as to the Fund. except such as may
arise from the negligent action, omission, bad faith or willful misconduct of
the Custodian, Its Trustees, Officers, Employees or Agents. The Custodian shall
defend, indemnify and hold harmless the Trust and its Trustees, Officers,
Employees or Agents with respect to any loss. claim, liability or cost
(including reasonable attorneys' fees) arising or allege to arise from or
relating to the Custodian's duties with respect to the Fund hereunder or any
other action or inaction of the Custodian or its Trustees, Officers, Employees,
Agents, nominees or Sub-Custodians as to the Fund except such as may arise from
the negligent action, omission, bad faith c willful misconduct of the Trust, Its
Trustees, Officers, Employees or Agents.
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The Custodian may, with respect to questions of law apply for and obtain the
advice and opinion of counsel to the Trust at the expense of the Fund, or of its
own counsel at Its own expense, 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 to the Trust, and shall be similarly protected with respect
to anything done or omitted by it in good faith in conformity with advice or
opinion of its counsel, unless counsel to the Fund shall, within a reasonable
time after being notified of legal advice received by the Custodian, have a
differing interpretation of such question of law. The Custodian shall be liable
to the Trust for any proximate loss or damage resulting from the use of the
Book-Entry System or any Depository arising by reason of any negligence,
misfeasance or misconduct on the part of the Custodian or any of its employees,
agents, nominees or Sub - Custodians but not for any special, incidental,
consequential, or punitive damages; provided, however, that nothing contained
herein shall preclude recovery by the Trust, on behalf of the Fund, of principal
and of interest to the date of recovery on, Securities incorrectly omitted from
the Fund's account or penalties imposed on the Trust, in connection with the
Fund, for any failures to deliver Securities. In any case in which one party
hereto may be asked to indemnify the other or hold the other harmless, the party
from whom indemnification Is sought (the "Indemnifying Party") shall be advised
of all pertinent facts concerning the situation in question, and the party
claiming a right to indemnification (the "Indemnified Party") will use
reasonable care to identify and notify the Indemnifying Party promptly
concerning any situation which presents or appears to present a claim for
indemnification against the Indemnifying Party. The Indemnifying Party shall
have the option to defend the Indemnified Party against any claim which may be
the subject of the indemnification, and in the event the Indemnifying Party so
elects, such
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defense shall be conducted by counsel chosen by the Indemnifying Party and
satisfactory to the Indemnified Party and the Indemnifying Party will so notify
the Indemnified Party and thereupon such Indemnifying Party shall take over the
complete defense of the claim and the Indemnifying Party shall sustain no
further legal or other expenses in such situation for which indemnification has
been sought under this paragraph, except the expenses of any additional counsel
retained by the Indemnified Party. In no case shall any party claiming the right
to indemnification confess any claim or make any compromise in any case in which
the other party has been asked to indemnify such party (unless such confession
or compromise is made with such other party's prior written consent).
The obligations of the parties hereto under this paragraph shall
survive the termination of this Agreement.
2. 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:
(a) The validity (but not the authenticity) 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
thereof or;
(b) 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;
(c) The legality of the issue or sale of any shares of the
Fund, or the sufficiency of the amount to be received therefor;
(d) The legality of the redemption of any shares of the Fund,
or the propriety of the amount to be paid therefor;
(e) The legality of the declaration or payment of any dividend
by the Trust in respect of shares of the Fund;
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(f) The legality of any borrowing by the Trust, on behalf of
the Fund, using Securities as collateral;
(g) The sufficiency of any deposit made pursuant to a
Certificate described in clause (ii) of paragraph 2(e) of Article IV
hereof,
3. The Custodian shall not be liable for any money or collected funds
In U. S. dollars deposited in a Federal Reserve Bank in accordance with a
Certificate described in clause (ii) of paragraph 2(e) of Article IV hereof, nor
be liable for or considered to be the Custodian of any money, whether or not
represented by any check, draft, or other instrument for the payment of money,
received by It on behalf of the Fund until the Custodian actually receives and
collects such money directly or by the final crediting of the account
representing the Fund's interest at the Book-Entry System or Depository.
4. The Custodian shall not be under any duty or obligation to take
action to effect collection of any amount due to the Fund from the Dividend and
Transfer Agent of the Fund nor to take any action to effect payment or
distribution by the Dividend and Transfer Agent of the Fund of any amount paid
by the Custodian to the Dividend and Transfer Agent of the Fund in accordance
with this Agreement.
5. Income due or payable to the Fund with respect to Fund Assets will
be credited to the account of the Fund as follows:
(a) Dividends will be credited on the first business day
following payable date Irrespective of collection.
(b) Interest on fixed rate municipal bonds and debt securities
Issued or guaranteed as to principal and/or interest by the government
of the United States or agencies or instrumentalities thereof
(excluding securities issued by the Government National Mortgage
Association) will be credited on payable date irrespective of
collection.
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(c) Interest on fixed rate corporate debt securities will be
credited on the first business day following payable date Irrespective
of collection.
(d) Interest on variable and floating rate debt securities and
debt securities issued by the Government National Mortgage Association
will be credited upon the Custodian's receipt of funds.
(e) Proceeds from options will be credited upon the
Custodian's receipt of funds.
6. Notwithstanding, paragraph 5 of this Article IX, the Custodian shall
not be under any duty or obligation to take action to effect collection of any
amount, if the Securities upon which such amount is payable are in default, or
if payment Is refused after due demand or presentation, unless and until (i) it
shall be directed to take such action by a Certificate and (ii) it shall be
assured to its satisfaction of reimbursement of Its costs and expenses in
connection with any such action or, at the Custodian's option, prepayment.
7. The Custodian may appoint one or more financial or banking
institutions, as Depository or Depositories or as Sub-Custodian or
Sub-Custodians, including, but not limited to, banking institutions located in
foreign countries, of Securities and monies at any time owned by the Fund, upon
terms and conditions approved in a Certificate. Current Depository(s) and
Sub-Custodian(s) are noted in Appendix B. The Custodian shall not be relieved of
any obligation or liability under this Agreement in connection with the
appointment or activities of such Depositories or Sub-Custodians.
8. 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 Declaration of Trust and the Trust's By-Laws.
9. The Custodian shall treat all records and other information relating
to the Trust, the Fund and the Fund Assets as confidential and shall not
disclose
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any such records or information to any other person unless (a) the Trust shall
have consented thereto in writing or (b) such disclosure is compelled by law.
10. The Custodian shall be entitled to receive and the Trust agrees to
pay to the Custodian, for the Fund's account from Fund Assets only, such
compensation as shall be determined pursuant to Appendix C attached hereto, or
as shall be determined pursuant to amendments to such Appendix approved by the
Custodian and the Trust, on behalf of the Fund. The Custodian shall be entitled
to charge against any money held by It for the account of the Fund the amount of
any loss, damage, liability or expense, including counsel fees, for which It
shall be entitled to reimbursement under the provisions of this Agreement as
determined by agreement of the Custodian and the Trust or by the final order of
any court or arbitrator having jurisdiction and as to which all rights of appeal
shall have expired. The expenses which the Custodian may charge against the
account of the Fund include, but are not limited to, the expenses of
Sub-Custodians incurred in settling transactions involving the purchase and sale
of Securities of the Fund.
11. The Custodian shall be entitled to rely upon any Certificate. The
Custodian shall be entitled to rely upon. any Oral Instructions and any Written
Instructions actually received by the Custodian pursuant to Article IV or V
hereof. The Trust agrees to forward to the Custodian Written Instructions from
Authorized Persons confirming Oral Instructions In such manner so that such
Written Instructions are received by the Custodian, whether by hand delivery,
telex or otherwise, on the first business day following the day on which such
Oral Instructions are given to the Custodian. The Trust agrees that the fact
that such confirming instructions are not received by the Custodian shall in no
way affect the validity of the transactions or enforceability of the
transactions hereby authorized by the Trust. The Trust
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agrees that the Custodian shall incur no liability to the Fund in acting upon
Oral Instructions given to the Custodian hereunder concerning such transactions.
12. The Custodian will (a) 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 Investment Company Act of 1940, with particular attention to Section
31 thereof and Rules 31 a-l and 31 a-2 thereunder, and (b) preserve for `the
periods prescribed by applicable Federal statute or regulation all records
required to be so preserved. The books and records of the Custodian shall be
open to inspection and audit at reasonable times and with prior notice by
Officers and auditors employed by the Trust. Upon reasonable request of the
Trust, the Custodian shall provide copies of any such books and records to the
Trust or Its representative and the Trust shall reimburse the Custodian its cost
of providing such copies.
13. The Custodian and its Sub-Custodians shall promptly send to the
Trust, any report received on the systems of internal accounting control of the
Book-Entry System, the Depository and with such reports on Its own systems of
internal accounting control as the Trust may reasonably request from time to
time.
14. 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 a custodial agent
shall not be deemed to be a recommendation to the Custodian's depositors or
others of shares of the Fund as an investment.
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ARTICLE X
TERMINATION
1. 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 Trust, on behalf of the
Fund, it shall be accompanied by a copy of a resolution of the Board of Trustees
of the Trust, certified by the Secretary or any Assistant Secretary, electing to
terminate this Agreement and designating a successor custodian or custodians
each of which shall be eligible to serve as a custodian for the securities of a
management investment company. 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 its Board of Trustees, 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 Trust, the Custodian may
designate a successor custodian which shall be a bank or trust company having
not less than $2,000,000 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 monies 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 Fund such compensation as may be due as of `the date of such termination.
The Trust agrees on behalf of the Fund that the Custodian shall be reimbursed
for its reasonable costs in connection with the termination of this Agreement.
2. If a successor custodian is not designated by the Trust, on behalf
of the Fund, or by the Custodian in accordance with the preceding paragraph,
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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 monies
then owned by the Fund, other than monies deposited with a Federal Reserve Bank
pursuant to a Certificate described in clause (II) of paragraph 2(e) of Article
IV, 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 Trust to hold such Securities hereunder in accordance
with this Agreement.
ARTICLE XI
MISCELLANEOUS
1. Appendix A sets forth the names and the signatures of all Authorized
Persons. The Trust agrees to furnish to the Custodian, on behalf of the Fund, 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 present
Authorized Persons as set forth in the last delivered Appendix A.
2. 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 predecessor 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 expressly agreed and understood that this Agreement and the obligations
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thereunder are enforceable solely against Fund Assets, and that no such
personal liability whatever shall attach to, or is or shall be incurred by, the
organizers, shareholders, Officers, Trustees of the Trust or of any predecessor
or successor, or any of them as such, because of the obligations contained in
this Agreement or implied therefrom and that any and all such liability Is
hereby expressly waived and released by the Custodian as a condition of, and as
a consideration for, the execution of this Agreement.
3. The obligations set forth in this Agreement as having been made by
the Trust have been made by the Trustees of the Trust, acting as such Trustees
for and on behalf of the Fund, pursuant to the authority vested in them under
the laws of the Commonwealth of Massachusetts, the Declaration of Trust 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
binding upon any of the Trustees, Officers, Agents or holders of shares,
personally, but bind only the Trust and then only to the extent of Fund Assets.
4. Such provisions of the Prospectus of the Fund 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 Trust.
5. 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.
6. Any notice or other instrument in writing, authorized or required by
this Agreement to be given to the Trust shall be sufficiently given
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when delivered to the Trust or on the second business day following the time
such notice is deposited in the U. S. mail postage prepaid and addressed to the
Trust at its office at 000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000, or at such
other place as the Trust may from time to time designate in writing.
7. This Agreement with the exception of Appendices A & B 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 Trustees of the Trust.
8. 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 Custodian, and no
attempted assignment by the Trust or the Custodian shall be effective without
the written consent of the other party hereto.
9. This Agreement shall be construed in accordance with the laws of the
State of Ohio.
10. 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: XXXXXXXX-XxXXXXXX CASH RESERVES TRUST
/s/Xxxxxxx X. Xxxxxxxxxx By: /s/ Xxxx X. Xxxxxx
President
ATTEST: STAR Bank, N.A.
/s/ Xxxxx Xxxxx Xxxxxx By: /s/Xxxxxxx X. Xxxxxx
Senior Trust Officer
25
APPENDIX A
AUTHORIZED PERSONS SPECIMEN SIGNATURES
Chairman: Xxxxxx X. Xxxxxx /s/ Xxxxxx X. Xxxxxx
President: Xxxx X. Xxxxxx /s/ Xxxx X. Xxxxxx
Secretary: Xxxxxxx X. Xxxxxxxxxx /s/ Xxxxxxx X. Xxxxxxxxxx
Treasurer: Xxxxxx X. Price /s/ Xxxxxx X. Price
Controller: _____________________ ______________________
Adviser Employees: Xxxxx X. Xxxx /s/Xxxxx X. Xxxx
Xxxx X. Xxxxxxx /s/ Xxxx X. Xxxxxxx
C. Xxxxxxx Xxxxxxxxxxxx /s/ C. Xxxxxxx
Xxxxxxxxxxxx
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APPENDIX B
The following Depository(s) and Sub-Custodian(s) 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
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Appendix C
Star Bank, NA as Custodian, will receive monthly compensation for
services according to the terms of the following schedule:
1) Portfolio Transaction Fees:
a) For each repurchase agreement transaction $ 7.00
b) For each portfolio transaction processed 11.00
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 25.00
e) For each GNMA Prin/Int Paydowns, GNMA Sales 8.00
f) For each option/future contract written,
exercise 40.00
g) For each Eurodollar CD transaction 100.00
h) For each Euroclear/Cedel transaction 100.00
i) For each DDA reconciliation 35.00
j) For each custody invoice 10.00
k) For each cash receipt/disbursement 5.00
A transaction is a purchase/sale of a security, free
receipt/free delivery (excludes initial conversion), maturity,
tender or exchange.
2) Monthly Base Fee -- Per Fund $1000.00
3) Out-of-Pocket Expenses
Star Bank shall be reimbursed for all out-of-pocket expenses including
postage, insurance, and long distance telephone charges.
Earnings Credits
On a monthly basis excess earnings credits for uninvested custody
balances will be applied against transaction fees (as referenced in
item #1 above).
Earnings credits are based on the floating 3-month average T- xxxx rate
on the investable balance.
Star Bank will guarantee these fees to the Xxxxxxxx-XxXxxxxx Cash
Reserves Trust for a period of three (3) years from the inception date
of the agreement.
All compensation is payable monthly.
