AMENDED AND RESTATED CUSTODY AGREEMENT
AMENDED
AND RESTATED CUSTODY AGREEMENT
THIS
AGREEMENT, originally made and
entered into as of the 25th day of April, 2003, by and between
Xxxxxxxxx Capital Management, Inc. (“KCM”), U.S. Bank National Association, a
national banking association (the “Custodian”) and the following investment
companies: Buffalo Balanced Fund, Inc., Buffalo Large Cap Fund, Inc., Buffalo
High Yield Fund, Inc., Buffalo USA Global Fund, Inc., Buffalo Small Cap Fund,
Inc., and Buffalo Funds, a Delaware statutory trust is hereby amended and
restated as of December 1, 2006.
WHEREAS,
the above-referenced
investment companies are registered under the Investment Company Act of 1940,
as
amended (the “1940 Act”), as open-end management investment companies, and are
authorized to issue shares of common stock or beneficial interest in separate
series representing interests in a separate portfolio of securities and other
assets (each such investment company and/or series thereof are defined herein
as
a “Fund” and, collectively as, the “Funds”); and
WHEREAS,
KCM is registered as an
investment adviser under the Investment Advisers Act of 1940 and, as the
investment adviser and manager of the Funds, KCM is contractually obligated
to
obtain and bear the costs of appropriate custodian services for the Funds;
and
WHEREAS,
the Custodian is a bank having
the qualifications prescribed in Section 26(a)(1) of the 1940 Act;
and
WHEREAS,
the Funds and KCM desire to
retain U.S. Bank National Association to act as Custodian to hold and administer
the Funds’ Securities (defined below) and cash pursuant to this Agreement;
and
WHEREAS,
KCM and the Funds have
delegated to the Custodian the responsibilities set forth in Rule 17f-5(c)
under
the 1940 Act and the Custodian is willing to undertake such responsibilities
and
serve as foreign custody manager for the Funds; and the Custodian is also
willing to perform (or cause its agent to perform) the risk analysis and
monitoring activities relating to foreign securities depositories as described
in Rule 17f-7(a)(1) under the 1940 Act.
NOW
THEREFORE, in consideration of the
promises and mutual covenants herein contained, and other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties hereto,
intending to be legally bound, do hereby agree as follows:
ARTICLE
I--DEFINITIONS
Whenever
used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall
have
the following meanings:
| 1.1 |
“Authorized
Person” means any Officer or other person duly authorized by
resolution of the Board of Directors/Trustees to give Oral Instructions
and Written Instructions on behalf of the Funds and named in Exhibit
A
hereto or in such resolutions of the Board of Directors/Trustees,
certified by an Officer, as may be received by the Custodian from
time to
time.
|
1
| 1.2 |
“Board
of Directors/Trustees”
shall mean the Directors or Trustees from time to time serving
under the
Funds’ governing documents, as from time to time
amended.
|
| 1.3 |
“Book-Entry
System”
shall mean a federal book-entry system as provided in Subpart O
of
Treasury Circular Xx. 000, 00 XXX 306, in Subpart B of 31 CFR Part
350, or
in such book-entry regulations of federal agencies as are substantially
in
the form of such Subpart O.
|
| 1.4 |
“Business
Day”
shall mean any day recognized as a settlement day by The New York
Stock
Exchange, Inc., and any other day on which the Funds compute the
net asset
value of their Shares.
|
| 1.5 |
“Country
Risk”
means all factors reasonably related to the systemic risk of holding
Foreign Securities in a particular country including, but not limited
to,
such country’s political environmental, economic and financial
infrastructure (including any Eligible Securities Depository operating
in
the country), prevailing or developing custody and settlement practices,
and laws and regulations applicable to the safekeeping and recovery
of
Foreign Securities held in custody in that country.
|
| 1.6 |
“Eligible
Foreign Custodian”
has the meaning set forth in Rule 17f-5(a)(1), including a majority-owned
or indirect subsidiary of a U.S. Bank (as defined in Rule 17f-5),
a bank
holding company meeting the requirements of an Eligible Foreign
Custodian
(as set forth in Rule 17f-5 or by other appropriate action of the
U.S.
Securities and Exchange Commission (the “SEC”), or a foreign branch of a
Bank (as defined in Section 2(a)(5) of the 0000 Xxx) meeting the
requirements of a custodian under Section 17(f) of the 1940 Act;
the term
does not include any Eligible Securities
Depository.
|
| 1.7 |
“Eligible
Securities Depository”
has the meaning set forth in Rule
17f-7(b)(1).
|
| 1.8 |
“Foreign
Custody Manager”
has the meaning set forth in Rule
17f-5(a)(3).
|
| 1.9 |
“Foreign
Securities”
means any of the Funds’ investments (including foreign currencies) for
which the primary market is outside the United States and such
cash and
cash equivalents as are reasonably necessary to effect the Funds’
transactions in such investments.
|
| 1.10 |
“Foreign
Securities System”
means an Eligible Securities Depository listed on Exhibit E
hereto.
|
| 1.11 |
“Foreign
Sub-Custodian”
means a foreign banking institution serving as an Eligible Foreign
Custodian.
|
2
| 1.12 |
“Fund”
means any of the separate portfolios established by the Funds from
time to
time and as to which the Funds, KCM and the Custodian have agreed
to have
the Custodian act in such capacity with respect to the assets of
a Fund.
As of the date hereof, the Funds for which the Custodian shall
act as a
custodian are named on Exhibit C
hereto.
|
| 1.13 |
“Fund
Custody Account”
shall mean any of the accounts in the name of the Funds, which
is provided
for in Section 3.2 below.
|
| 1.14 |
“NASD”
shall mean The National Association of Securities Dealers,
Inc.
|
| 1.15 |
“Officer”
shall mean the President, any Vice President, any Assistant Vice
President, the Secretary, any Assistant Secretary, the Treasurer,
or any
Assistant Treasurer of a Fund.
|
| 1.16 |
“Oral
Instructions”
shall mean instructions orally transmitted to and accepted by the
Custodian because such instructions are: (i) reasonably believed by the
Custodian to have been given by an Authorized Person, (ii) recorded
and
kept among the records of the Custodian made in the ordinary course
of
business and (iii) orally confirmed by the Custodian. KCM or Funds
shall
cause all Oral Instructions to be confirmed by Written Instructions
prior
to the end of the next Business Day. If such Written Instructions
confirming Oral Instructions are not received by the Custodian
prior to a
transaction, it shall in no way affect the validity of the transaction
or
the authorization thereof by KCM or Funds. If Oral Instructions
vary from
the Written Instructions that purport to confirm them, the Custodian
shall
notify KCM or Funds of such variance but such Oral Instructions
will
govern unless the Custodian has not yet
acted.
|
| 1.17 |
“Proper
Instructions”
shall mean Oral Instructions or Written Instructions. Proper Instructions
may be continuing Written Instructions when deemed appropriate
by both
parties.
|
| 1.18 |
“Securities
Depository”
shall mean The Depository Trust Company and (provided that Custodian
shall
have received a copy of a resolution of the Board of Directors/Trustees,
certified by an Officer, specifically approving the use of such
clearing
agency as a depository for the Funds) any other clearing agency
registered
with the Securities and Exchange Commission under Section 17A of
the
Securities and Exchange Act of 1934 as amended (the “1934 Act”), which
acts as a system for the central handling of Securities where all
Securities of any particular class or series of an issuer deposited
within
the system are treated as fungible and may be transferred or pledged
by
bookkeeping entry without physical delivery of the
Securities.
|
| 1.19 |
“Securities”
shall include, without limitation, common and preferred stocks,
bonds,
call options, put options, debentures, notes, bank certificates
of
deposit, bankers' acceptances, mortgage-backed securities or other
obligations, and any certificates, receipts, warrants or other
instruments
or documents representing rights to receive, purchase or subscribe
for the
same, or evidencing or representing any other rights or interests
therein,
or any similar property or assets that the Custodian has the facilities
to
clear and to service.
|
3
| 1.20 |
“Shares”
shall mean, with respect to a Fund, the shares of common stock
or units of
beneficial interest issued by the
Funds.
|
| 1.21 |
“Sub-Custodian”
shall mean and include (i) any branch of a “U.S. bank,” as that term is
defined in Rule 17f-5 under the 1940 Act, and (ii) any “Eligible Foreign
Custodian” having a contract with the Custodian which the Custodian has
determined will provide reasonable care of assets of the Funds
based on
the standards specified in Section 2.3 of Article II and Section
3.3 of
Article III below. Such contract shall be in writing and shall
include
provisions that provide: (i) for indemnification or insurance arrangements
(or any combination of the foregoing) such that the Funds will
be
adequately protected against the risk of loss of assets held in
accordance
with such contract; (ii) that the Foreign Securities will not be
subject
to any right, charge, security interest, lien or claim of any kind
in
favor of the Sub-Custodian or its creditors except a claim of payment
for
their safe custody or administration, in the case of cash deposits,
liens
or rights in favor of creditors of the Sub-Custodian arising under
bankruptcy, insolvency, or similar laws; (iii) that beneficial
ownership
for the Foreign Securities will be freely transferable without
the payment
of money or value other than for safe custody or administration;
(iv) that
adequate records will be maintained identifying the assets as belonging
to
the Funds or as being held by a third party for the benefit of
the Funds;
(v) that the Funds’ independent public accountants will be given access to
those records or confirmation of the contents of those records;
and (vi)
that the Funds will receive periodic reports with respect to the
safekeeping of the Funds’ assets, including, but not limited to,
notification of any transfer to or from a Funds’ account or a third party
account containing assets held for the benefit of the Funds. Such
contract
may contain, in lieu of any or all of the provisions specified
in (i) -
(vi) above, such other provisions that the Custodian determines
will
provide, in their entirety, the same or a greater level of care
and
protection for the Funds’ assets as the specified
provisions.
|
| 1.22 |
“Written
Instructions”
shall mean (i) written communications actually received by the
Custodian
and signed by an Authorized Person, or (ii) communications by telex
or any
other such system from one or more persons reasonably believed
by the
Custodian to be Authorized Persons, or (iii) communications between
electro-mechanical or electronic devices provided that the use
of such
devices and the procedures for the use thereof shall have been
approved by
resolutions of the Board of Directors/Trustees, a copy of which,
certified
by an Officer, shall have been delivered to the
Custodian.
|
4
ARTICLE
II
APPOINTMENT
OF CUSTODIAN
| 2.1 |
Appointment
and Acceptance.
The Funds and KCM hereby appoint the Custodian as custodian of
all
Securities and cash owned by or in the possession of the Funds
at any time
during the period of this Agreement, on the terms and conditions
set forth
in this Agreement, and the Custodian hereby accepts such appointment
and
agrees to perform the services and duties set forth in this Agreement.
The
following documents, including any amendments thereto, will be
provided
contemporaneously with the execution of this Agreement to the Custodian
by
KCM:
|
| (a) |
A
copy of each Fund’s Declaration of Trust or Articles of Incorporation
certified by the Secretary;
|
| (b) |
A
copy of each Fund’s Bylaws certified by the
Secretary;
|
| (c) |
A
copy of the resolution of the Board of Directors/Trustees of the
Funds
appointing the Custodian, certified by the
Secretary;
|
| (d) |
A
copy of the then current Prospectus of the Funds;
and
|
| (e) |
A
certification of the President and Secretary of the Funds setting
forth
the names and signatures of the current Officers of the Funds and
other
Authorized Persons.
|
| 2.2 |
Notice
of Appointment of Dividend and Transfer Agent.
KCM agrees to notify the Custodian in writing of the appointment,
termination or change in appointment of any Dividend and Transfer
Agent of
the Funds.
|
| 2.3 |
The
Custodian as Foreign Custody Manager.
Each Fund, by resolution adopted by its Board of Directors/Trustees,
hereby delegates to the Custodian, subject to Rule 17f-5(b), the
responsibilities set forth in this Section 2.3 with respect to
Foreign
Securities of the Funds held outside the United States, and the
Custodian
hereby accepts such delegation as Foreign Custody Manager with
respect to
the Funds. The services and duties of the Custodian shall be confined
to
those matters expressly set forth herein, and no implied duties
are
assumed by or may be asserted against the Custodian
hereunder.
|
(a) Countries
Covered.
The
Foreign Custody Manager shall be responsible for performing the delegated
responsibilities defined below only with respect to the countries and custody
arrangements for each such country listed on Exhibit D hereto, which list
may be
amended from time to time by KCM or the Funds with the agreement of the Foreign
Custody Manager. The Foreign Custody Manager shall list on Exhibit D the
Eligible Foreign Custodians selected by the Foreign Custody Manager to maintain
the assets of the Funds, which list of Eligible Foreign Custodians may be
amended from time to time in the sole discretion of the Foreign Custody Manager.
Upon the receipt by the Foreign Custody Manager of Proper Instructions to
open
an account or to place or maintain Foreign Securities in a country listed
on
Exhibit D, and the fulfillment by KCM, on behalf of the Funds, of the applicable
account opening requirements for such country, the Foreign Custody Manager
shall
be deemed to have been delegated by the Board of Directors/Trustees on behalf
of
the Funds responsibility as Foreign Custody Manager with respect to that
country
and to have accepted such delegation. Execution of this Agreement by the
Funds
shall be deemed to be a Proper Instruction to open an account, or to place
or
maintain Foreign Securities, in each country listed on Exhibit D in which
the
Custodian has previously placed or currently maintains Foreign Securities
pursuant to the terms of the Contract. Following the receipt of Proper
Instructions directing the Foreign Custody Manager to close the account of
a
Fund with the Eligible Foreign Custodian selected by the Foreign Custody
Manager
in a designated country, the delegation by the Board of Directors/Trustees
on
behalf of the Fund to the Custodian as Foreign Custody Manager for that country
shall be deemed to have been withdrawn and the Custodian shall immediately
cease
to be the Foreign Custody Manager of the Fund with respect to that country.
The
Foreign Custody Manager may withdraw its acceptance of delegated
responsibilities with respect to a designated country upon written notice
to KCM
and the Funds. Thirty days (or such longer period to which the parties agree
in
writing) after receipt of any such notice by the Funds and KCM, the Custodian
shall have no further responsibility in its capacity as Foreign Custody Manager
to the Funds with respect to the country as to which the Custodian’s acceptance
of delegation is withdrawn.
5
(b) Scope
of Delegated Responsibilities.
(i) Selection
of Eligible Foreign Custodians.
Subject
to the provisions of this Section 2.3, the Foreign Custody Manager may place
and
maintain the Foreign Securities in the care of the Eligible Foreign Custodian
selected by the Foreign Custody Manager in each country listed on Exhibit
D, as
amended from time to time. In performing its delegated responsibilities as
Foreign Custody Manager to place or maintain Foreign Securities with an Eligible
Foreign Custodian, the Foreign Custody Manager shall determine that the Foreign
Securities will be subject to reasonable care, based on the standards applicable
to custodians in the country in which the Foreign Securities will be held
by
that Eligible Foreign Custodian, after considering all factors relevant to
the
safekeeping of such assets, including, without limitation, the factors specified
in Rule 17f-5(c)(1).
(ii) Contracts
With Eligible Foreign Custodians.
The
Foreign Custody Manager shall determine that the contract governing the foreign
custody arrangements with each Eligible Foreign Custodian selected by the
Foreign Custody Manager will satisfy the requirements of Rule
17f-5(c)(2).
(iii) Monitoring.
In each
case in which the Foreign Custody Manager maintains Foreign Securities with
an
Eligible Foreign Custodian selected by the Foreign Custody Manager, the Foreign
Custody Manager shall establish a system to monitor in accordance with Rule
17f-5(c)(3), (A) the appropriateness of maintaining the Foreign Securities
with
such Eligible Foreign Custodian; (B) the contract governing the custody
arrangements established by the Foreign Custody Manager with the Eligible
Foreign Custodian; and (C) the custody risks of maintaining assets with an
Eligible Foreign Custodian. In the event the Foreign Custody Manager determines
that the custody arrangements with an Eligible Foreign Custodian it has selected
are no longer appropriate, the Foreign Custody Manager shall notify the Board
of
Directors/Trustees and the Fund’s duly appointed manager in accordance with
Section 2.3(d).
6
(c) Guidelines
for the Exercise of Delegated Authority.
For
purposes of this Section 2.3, the Board of Directors/Trustees shall be deemed
to
have considered and determined to accept such Country Risk as is incurred
by
placing and maintaining the Foreign Securities in each country for which
the
Custodian is serving as Foreign Custody Manager of the Funds.
(d) Reporting
Requirements.
The
Foreign Custody Manager shall report the withdrawal of the Foreign Securities
from an Eligible Foreign Custodian and the placement of such Foreign Securities
with another eligible Foreign Custodian by providing to the Board of
Directors/Trustees and the Funds’ adviser an amended Exhibit D at the end of the
calendar quarter in which an amendment to such Funds’ adviser has occurred. The
Foreign Custody Manager shall make written reports notifying the Board of
Directors/Trustees and the Funds’ adviser of any other material change in the
foreign custody arrangements of the Funds described in this Section 2.3 after
the occurrence of the material change.
(e) Standard
of Care as Foreign Custody Manager.
In
performing the responsibilities delegated to it, the Foreign Custody Manager
agrees to exercise reasonable care, prudence and diligence such as a person
having responsibility for the safekeeping of assets of management investment
companies registered under the 1940 Act would exercise.
(f) Effective
Date and Termination of the Custodian as Foreign Custody Manager.
The
Board of Directors/Trustees’ delegation to the Custodian as Foreign Custody
Manager of the Funds shall be effective as of the date hereof and shall remain
in effect until terminated at any time, without penalty, by written notice
from
the terminating party to the non-terminating party. Termination will become
effective thirty (30) days after receipt by the non-terminating party of
such
notice. The provisions of Section 2.3(a) hereof shall govern the delegation
to
and termination of the Custodian as Foreign Custody Manager of the Funds
with
respect to designated countries.
| 2.4 |
Eligible
Securities Depositories.
The Custodian shall (a) provide the Board of Directors/Trustees
and the
Fund’s duly appointed manager with an analysis of the custody risks
associated with maintaining assets with the Eligible Securities
Depositories set forth on Exhibit D hereto in accordance with Rule
17f-7(a)(1)(i)(A) and (b) monitor such risks on a continuing basis,
and
promptly notify the Board of Directors/Trustees and the Funds’ adviser of
any material change in such risks, in accordance with section (a)(1)(i)(B)
of Rule 17f-7(a)(1)(i)(B). The risk analysis provided by the Custodian
may
include consideration of the following, as deemed appropriate and
relevant
by the Custodian: a depository’s expertise and market reputation, the
quality of its services, its financial strength (including the
level of
settlement guarantee funds, collateral requirements, lines of credit,
or
insurance as compared with participants’ daily settlement obligations),
any insurance or indemnification arrangements, the extent and quality
of
regulation and independent examination of the depository, its standing
in
published ratings, its internal controls and other procedures for
safeguarding investments, and any related legal protections. The
Custodian
agrees to exercise reasonable care, prudence and diligence in performing
the duties set forth in this
Section.
|
7
ARTICLE
III
CUSTODY
OF CASH AND SECURITIES
| 3.1 |
Segregation.
All Securities and non-cash property held by the Custodian for
the account
of the Funds (other than Securities maintained in a Securities
Depository
or Book-Entry System) shall be physically segregated from other
Securities
and non-cash property in the possession of the Custodian (including
the
Securities and non-cash property of the other Funds or series of
Funds)
and shall be identified as subject to this
Agreement.
|
| 3.2 |
Fund
Custody Accounts.
As to each Fund, the Custodian shall open and maintain in its trust
department a custody account in the name of the Fund, subject only
to
draft or order of the Custodian, in which the Custodian shall enter
and
carry all Securities, cash and other assets of such Fund which
are
delivered to it.
|
| 3.3 |
Appointment
of Agents.
|
| (a) |
In
its discretion, the Custodian may appoint one or more Sub-Custodians
to
establish and maintain arrangements with (i) Eligible Securities
Depositories or (ii) Eligible Foreign Custodians who are members
of the
Sub-Custodian’s network to hold Securities and cash of the Funds and to
carry out such other provisions of this Agreement as it may determine;
provided, however, that the appointment of any such agents and
maintenance
of any Securities and cash of the Funds shall be at the Custodian's
expense and shall not relieve the Custodian of any of its obligations
or
liabilities under this Agreement. The Custodian shall be liable
for the
actions of any Sub-Custodians (regardless of whether assets are
maintained
in the custody of a Sub-Custodian, a member of its network or an
Eligible
Securities Depository) appointed by it as if such actions had been
done by
the Custodian.
|
8
| (b) |
If,
after the initial appointment of Sub-Custodians by the Board of
Directors/Trustees in connection with this Agreement, the Custodian
wishes
to appoint other Sub-Custodians to hold property of the Funds,
it will so
notify KCM and the Funds and make the necessary determinations
as to any
such new Sub-Custodian's eligibility under Rule 17f-5 under the
1940
Act.
|
| (c) |
The
Agreement between the Custodian and each Sub-Custodian acting hereunder
shall contain the required provisions set forth in Rule
17f-5(a)(1)(iii).
|
| (d) |
At
the end of each calendar quarter, the Custodian shall provide written
reports notifying the Board of Directors/Trustees of the placement
of the
Securities and cash of the Funds with a particular Sub-Custodian
and of
any material changes in the Funds’ arrangements. The Custodian shall
promptly take such steps as may be required to withdraw assets
of the
Funds from any Sub-Custodian that has ceased to meet the requirements
of
Rule 17f-5 under the 1940 Act.
|
| (e) |
With
respect to its responsibilities under this Section 3.3, the Custodian
hereby warrants to KCM and Funds that it agrees to exercise reasonable
care, prudence and diligence such as a person having responsibility
for
the safekeeping of property of the Funds. The Custodian further
warrants
that a Fund’s assets will be subject to reasonable care, based on the
standards applicable to custodians in the relevant market, if maintained
with each Sub-Custodian, after considering all factors relevant
to the
safekeeping of such assets, including, without limitation: (i)
the
Sub-Custodian's practices, procedures, and internal controls, for
certificated securities (if applicable), the method of keeping
custodial
records, and the security and data protection practices; (ii) whether
the
Sub-Custodian has the requisite financial strength to provide reasonable
care for Fund assets; (iii) the Sub-Custodian's general reputation
and
standing and, in the case of a Securities Depository, the Securities
Depository’s operating history and number of participants; and (iv)
whether the Funds will have jurisdiction over and be able to enforce
judgments against the Sub-Custodian, such as by virtue of the existence
of
any offices of the Sub-Custodian in the United States or the
Sub-Custodian's consent to service of process in the United
States.
|
| (f) |
The
Custodian shall establish a system to monitor the appropriateness
of
maintaining the Funds’ assets with a particular Sub-Custodian and the
contract governing the Funds’ arrangements with such
Sub-Custodian.
|
| 3.4 |
Delivery
of Assets to Custodian.
The Funds shall deliver, or cause to be delivered, to the Custodian
all of
the Funds’ Securities, cash and other assets, including (a) all payments
of income, payments of principal and capital distributions received
by the
Funds with respect to such Securities, cash or other assets owned
by the
Funds at any time during the period of this Agreement, and (b)
all cash
received by the Funds for the issuance, at any time during such
period, of
Shares. The Custodian shall not be responsible for such Securities,
cash
or other assets until actually received by
it.
|
9
| 3.5 |
Securities
Depositories and Book-Entry Systems.
The Custodian may deposit and/or maintain Securities of the Funds
in a
Securities Depository or in a Book-Entry System, subject to the
following
provisions:
|
| (a) |
Prior
to a deposit of Securities of each Fund in any Securities Depository
or
Book-Entry System, KCM or a Fund shall deliver to the Custodian
a
resolution of the Board of Directors/Trustees, certified by an
Officer,
authorizing and instructing the Custodian on an on-going basis
to deposit
in such Securities Depository or Book-Entry System all Securities
eligible
for deposit therein and to make use of such Securities Depository
or
Book-Entry System to the extent possible and practical in connection
with
its performance hereunder, including, without limitation, in connection
with settlements of purchases and sales of Securities, loans of
Securities, and deliveries and returns of collateral consisting
of
Securities.
|
| (b) |
Securities
of each Fund kept in a Book-Entry System or Securities Depository
shall be
kept in an account (“Depository Account”) of the Custodian in such
Book-Entry System or Securities Depository which includes only
assets held
by the Custodian as a fiduciary, custodian or otherwise for
customers.
|
| (c) |
The
records of the Custodian with respect to Securities of each Fund
maintained in a Book-Entry System or Securities Depository shall,
by
book-entry, identify such Securities as belonging to each
Fund.
|
| (d) |
If
Securities purchased by a Fund are to be held in a Book-Entry System
or
Securities Depository, the Custodian shall pay for such Securities
upon
(i) receipt of advice from the Book-Entry System or Securities
Depository
that such Securities have been transferred to the Depository Account, and
(ii) the making of an entry on the records of the Custodian to
reflect
such payment and transfer for the account of the applicable Fund.
If
Securities sold by a Fund are held in a Book-Entry System or Securities
Depository, the Custodian shall transfer such Securities upon (i)
receipt
of advice from the Book-Entry System or Securities Depository that
payment
for such Securities has been transferred to the Depository Account,
and
(ii) the making of an entry on the records of the Custodian to
reflect
such transfer and payment for the account of the applicable
Fund.
|
| (e) |
The
Custodian shall provide the Funds and KCM with copies of any report
(obtained by the Custodian from a Book-Entry System or Securities
Depository in which Securities of the Funds are kept) on the internal
accounting controls and procedures for safeguarding Securities
deposited
in such Book-Entry System or Securities
Depository.
|
10
| (f) |
Anything
to the contrary in this Agreement notwithstanding, the Custodian
shall be
liable to the Funds for any loss or damage to the Funds resulting
(i) from
the use of a Book-Entry System or Securities Depository by reason
of any
negligence or willful misconduct on the part of Custodian or any
Sub-Custodian appointed pursuant to Section 3.3 above or any of
its or
their employees, or (ii) from failure of Custodian or any such
Sub-Custodian to enforce effectively such rights as it may have
against a
Book-Entry System or Securities Depository. At its election, a
Fund shall
be subrogated to the rights of the Custodian with respect to any
claim
against a Book-Entry System or Securities Depository or any other
person
from any loss or damage to the Fund arising from the use of such
Book-Entry System or Securities Depository, if and to the extent
that the
Fund has not been made whole for any such loss or
damage.
|
| 3.6 |
Disbursement
of Moneys from Fund Custody Account.
Upon receipt of Proper Instructions, the Custodian shall disburse
moneys
from the Fund Custody Accounts but only in the following
cases:
|
| (a) |
For
the purchase of Securities for the Funds but only in accordance
with
Section 5.1 of this Agreement and only (i) in the case of Securities
(other than options on Securities, futures contracts and options
on
futures contracts), against the delivery to the Custodian (or any
Sub-Custodian appointed pursuant to Section 3.3 above) of such
Securities
registered as provided in Section 3.9 below or in proper form for
transfer, or if the purchase of such Securities is effected through
a
Book-Entry System or Securities Depository, in accordance with
the
conditions set forth in Section 3.5 above; (ii) in the case of
options on
Securities, against delivery to the Custodian (or such Sub-Custodian)
of
such receipts as are required by the customs prevailing among dealers
in
such options; (iii) in the case of futures contracts and options
on
futures contracts, against delivery to the Custodian (or such
Sub-Custodian) of evidence of title thereto in favor of the Funds
or any
nominee referred to in Section 3.9 below; and (iv) in the case
of
repurchase or reverse repurchase agreements entered into between
a Fund
and a bank which is a member of the Federal Reserve System or between
a
Fund and a primary dealer in U.S. Government securities, against
delivery
of the purchased Securities either in certificate form or through
an entry
crediting the Custodian's account at a Book-Entry System or Securities
Depository with such Securities;
|
| (b) |
In
connection with the conversion, exchange or surrender, as set forth
in
Section 3.7(f) below, of Securities owned by the
Funds;
|
| (c) |
For
the payment of any dividends or capital gain distributions declared
by the
Funds;
|
| (d) |
In
payment of the redemption price of Shares as provided in Section
6.1
below;
|
11
| (e) |
For
the payment of any expense or liability incurred by the Funds,
including
but not limited to the following payments for the account of the
Funds:
interest; taxes; administration, investment advisory, accounting,
auditing, transfer agent, custodian, director and legal fees; and
other
operating expenses of the Funds; in all cases, whether or not such
expenses are to be in whole or in part capitalized or treated as
deferred
expenses;
|
| (f) |
For
transfer in accordance with the provisions of any agreement among
a Fund
or KCM, the Custodian and a broker-dealer registered under the
1934 Act
and a member of the NASD, relating to compliance with rules of
The Options
Clearing Corporation and of any registered national securities
exchange
(or of any similar organization or organizations) regarding escrow
or
other arrangements in connection with transactions by the
Funds;
|
| (g) |
For
transfer in accordance with the provision of any agreement among
a Fund or
KCM, the Custodian, and a futures commission merchant registered
under the
Commodity Exchange Act, relating to compliance with the rules of
the
Commodity Futures Trading Commission and/or any contract market
(or any
similar organization or organizations) regarding account deposits
in
connection with transactions by the
Funds;
|
| (h) |
For
the funding of any uncertificated time deposit or other interest-bearing
account with any banking institution (including the Custodian),
which
deposit or account has a term of one year or less;
and
|
| (i) |
For
any other proper purpose, but only upon receipt, in addition to
Proper
Instructions, of a copy of a resolution of the affected Funds’ Board of
Directors/Trustees, certified by an Officer, specifying the amount
and
purpose of such payment, declaring such purpose to be a proper
corporate
purpose, and naming the person or persons to whom such payment
is to be
made.
|
| 3.7 |
Delivery
of Securities from Fund Custody Account.
Upon receipt of Proper Instructions, the Custodian shall release
and
deliver Securities from the Fund Custody Accounts but only in the
following cases:
|
| (a) |
Upon
the sale of Securities for the account of the Funds but only against
receipt of payment therefor in cash, by certified or cashiers check
or
bank credit;
|
| (b) |
In
the case of a sale effected through a Book-Entry System or Securities
Depository, in accordance with the provisions of Section 3.5
above;
|
| (c) |
To
an offeror's depository agent in connection with tender or other
similar
offers for Securities of the Funds; provided that, in any such
case, the
cash or other consideration is to be delivered to the
Custodian;
|
12
| (d) |
To
the issuer thereof or its agent (i) for transfer into the name
of the
Funds, the Custodian or any Sub-Custodian appointed pursuant to
Section
3.3 above, or of any nominee or nominees of any of the foregoing,
or (ii)
for exchange for a different number of certificates or other evidence
representing the same aggregate face amount or number of units;
provided
that, in any such case, the new Securities are to be delivered
to the
Custodian;
|
| (e) |
To
the broker selling Securities, for examination in accordance with
the
“street delivery” custom;
|
| (f) |
For
exchange or conversion pursuant to any plan or merger, consolidation,
recapitalization, reorganization or readjustment of the issuer
of such
Securities, or pursuant to provisions for conversion contained
in such
Securities, or pursuant to any deposit agreement, including surrender
or
receipt of underlying Securities in connection with the issuance
or
cancellation of depository receipts; provided that, in any such
case, the
new Securities and cash, if any, are to be delivered to the
Custodian;
|
| (g) |
Upon
receipt of payment therefor pursuant to any repurchase or reverse
repurchase agreement entered into by the
Funds;
|
| (h) |
In
the case of warrants, rights or similar Securities, upon the exercise
thereof, provided that, in any such case, the new Securities and
cash, if
any, are to be delivered to the
Custodian;
|
| (i) |
For
delivery in connection with any loans of Securities of the Funds,
but only
against receipt of such collateral as the Funds shall have specified
to
the Custodian in Proper
Instructions;
|
| (j) |
For
delivery as security in connection with any borrowings by the Funds
requiring a pledge of assets by the Funds, but only against receipt
by the
Custodian of the amounts borrowed;
|
| (k) |
Pursuant
to any authorized plan of liquidation, reorganization, merger,
consolidation or recapitalization of the
Funds;
|
| (l) |
For
delivery in accordance with the provisions of any agreement among
the
Funds or KCM, the Custodian and a broker-dealer registered under
the 1934
Act and a member of the NASD, relating to compliance with the rules
of The
Options Clearing Corporation and of any registered national securities
exchange (or of any similar organization or organizations) regarding
escrow or other arrangements in connection with transactions by
the
Funds;
|
| (m) |
For
delivery in accordance with the provisions of any agreement among
the
Funds or KCM, the Custodian, and a futures commission merchant
registered
under the Commodity Exchange Act, relating to compliance with the
rules of
the Commodity Futures Trading Commission and/or any contract market
(or
any similar organization or organizations) regarding account deposits
in
connection with transactions by the Funds;
or
|
13
| (n) |
For
any other proper corporate purpose, but only upon receipt, in addition
to
Proper Instructions, of a copy of a resolution of the Fund’s Board of
Directors/Trustees, certified by an Officer, specifying the Securities
to
be delivered, setting forth the purpose for which such delivery
is to be
made, declaring such purpose to be a proper corporate purpose,
and naming
the person or persons to whom delivery of such Securities shall
be
made.
|
| 3.8 |
Actions
Not Requiring Proper Instructions.
Unless otherwise instructed by KCM or the Funds, the Custodian
shall with
respect to all Securities held for the
Funds:
|
| (a) |
Subject
to Section 4.6 and Section 8.4 below, collect on a timely basis
all income
and other payments to which the Funds are entitled either by law
or
pursuant to custom in the securities
business;
|
| (b) |
Present
for payment and, subject to Section 8.4 below, collect on a timely
basis
the amount payable upon all Securities which may mature or be called,
redeemed, or retired, or otherwise become
payable;
|
| (c) |
Endorse
for collection, in the name of the Funds, checks, drafts and other
negotiable instruments;
|
| (d) |
Surrender
interim receipts or Securities in temporary form for Securities
in
definitive form;
|
| (e) |
Execute,
as custodian, any necessary declarations or certificates of ownership
under the federal income tax laws or the laws or regulations of
any other
taxing authority now or hereafter in effect, and prepare and submit
reports to the Internal Revenue Service (“IRS”), the Funds and KCM at such
time, in such manner and containing such information as is prescribed
by
the IRS;
|
| (f) |
Hold
for the Funds, either directly or, with respect to Securities held
therein, through a Book-Entry System or Securities Depository,
all rights
and similar securities issued with respect to Securities of the
Funds;
and
|
| (g) |
In
general, and except as otherwise directed in Proper Instructions,
attend
to all non-discretionary details in connection with the sale, exchange,
substitution, purchase, transfer and other dealings with Securities
and
assets of the Funds.
|
| 3.9 |
Registration
and Transfer of Securities.
All Securities held for the Funds that are issued or issuable only
in
bearer form shall be held by the Custodian in that form, provided
that any
such Securities shall be held in a Book-Entry System if eligible
therefor.
All other Securities held for the Funds may be registered in the
name of
the Fund, the Custodian, or any Sub-Custodian appointed pursuant
to
Section 3.3 above, or in the name of any nominee of any of them,
or in the
name of a Book-Entry System, Securities Depository or any nominee
of
either thereof. The Fund or KCM shall furnish to the Custodian
appropriate
instruments to enable the Custodian to hold or deliver in proper
form for
transfer, or to register in the name of any of the nominees hereinabove
referred to or in the name of a Book-Entry System or Securities
Depository, any Securities registered in the name of the
Fund.
|
14
| 3.10 |
Records.
|
| (a) |
The
Custodian shall maintain, for the Funds, complete and accurate
records
with respect to Securities, cash or other property held for the
Funds,
including (i) journals or other records of original entry containing
an
itemized daily record in detail of all receipts and deliveries
of
Securities and all receipts and disbursements of cash; (ii) ledgers
(or
other records) reflecting (A) Securities in transfer, (B) Securities
in
physical possession, (C) monies and Securities borrowed and monies
and
Securities loaned (together with a record of the collateral therefor
and
substitutions of such collateral), (D) dividends and interest received,
and (E) dividends receivable and interest receivable; and (iii)
canceled
checks and bank records related thereto. The Custodian shall keep
such
other books and records of the Funds as KCM or the Funds shall
reasonably
request, or as may be required by the 1940 Act, including, but
not limited
to, Section 31 of the 1940 Act and Rule 31a-2 promulgated
thereunder.
|
| (b) |
All
such books and records maintained by the Custodian shall (i) be
maintained
in a form acceptable to KCM and the Funds and in compliance with
rules and
regulations of the Securities and Exchange Commission, (ii) be
the
property of the Funds and at all times during the regular business
hours
of the Custodian be made available upon request for inspection
by duly
authorized officers, employees or agents of KCM and the Funds and
employees or agents of the Securities and Exchange Commission,
and (iii)
if required to be maintained by Rule 31a-1 under the 1940 Act,
be
preserved for the periods prescribed in Rule 31a-2 under the 0000
Xxx.
|
| 3.11 |
Fund
Reports by Custodian.
The Custodian shall furnish KCM with a daily activity statement
and a
summary of all transfers to or from each Fund Custody Account on
the day
following such transfers. At least monthly and from time to time,
the
Custodian shall furnish KCM with a detailed statement of the Securities
and moneys held by the Custodian and the Sub-Custodians for the
Funds
under this Agreement.
|
| 3.12 |
Other
Reports by Custodian.
The Custodian shall provide KCM and the Funds with such reports,
as KCM
and the Funds may reasonably request from time to time, on the
internal
accounting controls and procedures for safeguarding Securities,
which are
employed by the Custodian or any Sub-Custodian appointed pursuant
to
Section 3.3 above.
|
15
| 3.13 |
Proxies
and Other Materials.
The Custodian shall cause all proxies relating to Securities which
are not
registered in the name of the Funds, to be promptly executed by
the
registered holder of such Securities, without indication of the
manner in
which such proxies are to be voted, and shall promptly deliver
to KCM such
proxies, all proxy soliciting materials and all notices relating
to such
Securities.
|
| 3.14 |
Information
on Corporate Actions.
The Custodian shall promptly deliver to KCM all information received
by
the Custodian and pertaining to Securities being held by the Funds
with
respect to optional tender or exchange offers, calls for redemption
or
purchase, or expiration of rights as described in the Standards
of Service
Guide attached as Exhibit B. If KCM desires to take action with
respect to
any tender offer, exchange offer or other similar transaction,
KCM shall
notify the Custodian at least five Business Days prior to the date
on
which the Custodian is to take such action. KCM will provide or
cause to
be provided to the Custodian all relevant information for any Security
which has unique put/option provisions at least five Business Days
prior
to the beginning date of the tender
period.
|
ARTICLE
IV
PROPERTY
HELD OUTSIDE OF THE UNITED STATES
| 4.1 |
Holding
Securities.
The Custodian shall identify on its books as belonging to the Funds
the
foreign securities held by each Foreign Sub-Custodian or Foreign
Securities System. The Custodian may hold foreign securities for
all of
its customers, including the Funds, with any Foreign Sub-Custodian
in an
account that is identified as belonging to the Custodian for the
benefit
of its customers, provided however, that (i) the records of the
Custodian
with respect to foreign securities of the Funds which are maintained
in
such account shall identify those securities as belonging to the
Funds and
(ii), to the extent permitted and customary in the market in which
the
account is maintained, the Custodian shall require that securities
so held
by the Foreign Sub-Custodian be held separately from any assets
of such
Foreign Sub-Custodian or of other customers of such Foreign
Sub-Custodian.
|
| 4.2 |
Foreign
Securities Systems.
Foreign securities shall be maintained in a Foreign Securities
System in a
designated country through arrangements implemented by the Custodian
or a
Foreign Sub-Custodian, as applicable, in such
country.
|
| 4.3 |
Transactions
in Foreign Custody Account.
|
(a) Delivery
of Foreign Securities.
The
Custodian or a Foreign Sub-Custodian shall release and delivery foreign
securities of the Funds held by the Custodian or such Foreign Sub-Custodian,
or
in a Foreign Securities System account, only upon receipt of Proper
Instructions, which may be continuing instructions when deemed appropriate
by
the parties, and only in the following cases:
16
|
(i)
|
upon
the sale of such foreign securities for the Fund in accordance
with
commercially reasonable market practice in the country where such
foreign
securities are held or traded, including, without limitation: (A)
delivery
against expectation of receiving later payment; or (B) in the case
of a
sale effected through a Foreign Securities System, in accordance
with the
rules governing the operation of the Foreign Securities
System;
|
|
(ii)
|
in
connection with any repurchase agreement related to foreign
securities;
|
|
(iii)
|
to
the depository agent in connection with tender or other similar
offers for
foreign securities of the Funds;
|
|
(iv)
|
to
the issuer thereof or its agent when such foreign securities are
called,
redeemed, retired or otherwise become
payable;
|
|
(v)
|
to
the issuer thereof, or its agent, for transfer into the name of
the
Custodian (or the name of the respective Foreign Sub-Custodian
or of any
nominee of the Custodian or such Foreign Sub-Custodian) or for
exchange
for a different number of bonds, certificates or other evidence
representing the same aggregate face amount or number of
units;
|
|
(vi)
|
to
brokers, clearing banks or other clearing agents for examination
or trade
execution in accordance with market custom; provided that in any
such case
the Foreign Sub-Custodian shall have no responsibility or liability
for
any loss arising from the delivery of such securities prior to
receiving
payment for such securities except as may arise from the Foreign
Sub-Custodian’s own negligence or willful
misconduct;
|
|
(vii)
|
for
exchange or conversion pursuant to any plan of merger, consolidation,
recapitalization, reorganization or readjustment of the securities
of the
issuer of such securities, or pursuant to provisions for conversion
contained in such securities, or pursuant to any deposit
agreement;
|
|
(viii)
|
in
the case of warrants, rights or similar foreign securities, the
surrender
thereof in the exercise of such warrants, rights or similar securities
or
the surrender of interim receipts or temporary securities for definitive
securities;
|
|
(ix)
|
for
delivery as security in connection with any borrowing by the Funds
requiring a pledge of assets by the
Funds;
|
17
|
(x)
|
in
connection with trading in options and futures contracts, including
delivery as original margin and variation
margin;
|
|
(xi)
|
in
connection with the lending of foreign securities;
and
|
|
(xii)
|
for
any other purpose, but only upon receipt of Proper Instructions
specifying
the foreign securities to be delivered and naming the person or
persons to
whom delivery of such securities shall be
made.
|
(b) Payment
of Fund Monies.
Upon
receipt of Proper Instructions, which may be continuing instructions when
deemed
appropriate by the parties, the Custodian shall pay out, or direct the
respective Foreign Sub-Custodian or the respective Foreign Securities System
to
pay out, monies of a Fund in the following cases only:
|
(i)
|
upon
the purchase of foreign securities for the Fund, unless otherwise
directed
by Proper Instructions, by (A) delivering money to the seller thereof
or
to a dealer therefor (or an agent for such seller or dealer) against
expectation of receiving later delivery of such foreign securities;
or (B)
in the case of a purchase effected through a Foreign Securities
System, in
accordance with the rules governing the operation of such Foreign
Securities System;
|
|
(ii)
|
in
connection with the conversion, exchange or surrender of foreign
securities of the Fund;
|
|
(iii)
|
for
the payment of any expense or liability of the Fund, including
but not
limited to the following payments: interest, taxes, investment
advisory
fees, transfer agency fees, fees under this Agreement, legal fees,
accounting fees, and other operating
expenses;
|
|
(iv)
|
for
the purchase or sale of foreign exchange or foreign exchange contracts
for
the Fund, including transactions executed with or through the Custodian
or
its Foreign Sub-Custodians;
|
|
(v)
|
in
connection with trading in options and futures contracts, including
delivery as original margin and variation
margin;
|
|
(vi)
|
for
payment of part or all of the dividends received in respect of
securities
sold short;
|
|
(vii)
|
in
connection with the borrowing or lending of foreign securities;
and
|
18
|
(viii)
|
for
any other purpose, but only upon receipt of Proper Instructions
specifying
the amount of such payment and naming the person or persons to
whom such
payment is to be made.
|
(c) Market
Conditions.
Notwithstanding any provision of this Agreement to the contrary, settlement
and
payment for Foreign Securities received for the account of the Funds and
delivery of Foreign Securities maintained for the account of the Fund may
be
effected in accordance with the customary established securities trading
or
processing practices and procedures in the country or market in which the
transaction occurs, including, without limitation, delivering Foreign Securities
to the purchaser thereof or to a dealer therefor (or an agent for such purchaser
or dealer) with the expectation of receiving later payment for such Foreign
Securities from such purchaser or dealer. The Custodian shall provide to
the
Board of Directors/Trustees and the Funds’ adviser the information with respect
to custody and settlement practices in countries in which the Custodian employs
a Foreign Sub-Custodian.
| 4.4 |
Registration
of Foreign Securities.
The foreign securities maintained in the custody of a Foreign
Sub-Custodian (other than bearer securities) shall be registered
in the
name of the applicable Fund or in the name of the Custodian or
in the name
of any Foreign Sub-Custodian or in the name of any nominee of the
foregoing, and KCM on behalf of such Fund agrees to hold any such
nominee
harmless from any liability as a holder of record of such foreign
securities. The Custodian or a Foreign Sub-Custodian shall not
be
obligated to accept securities on behalf of a Fund under the terms
of this
Contract unless the form of such securities and the manner in which
they
are delivered are in accordance with reasonable market
practice.
|
| 4.5 |
Bank
Accounts.
The Custodian shall identify on its books as belonging to the Funds
cash
(including cash denominated in foreign currencies) deposited with
the
Custodian. Where the Custodian is unable to maintain, or market
practice
does not facilitate the maintenance of, cash on the books of the
Custodian, a bank account or bank accounts shall be opened and
maintained
outside the United States on behalf of a Fund with a Foreign
Sub-Custodian. All accounts referred to in this Section shall be
subject
only to draft or order by the Custodian (or, if applicable, such
Foreign
Sub-Custodian) acting pursuant to the terms of this Agreement to
hold cash
received by or from or for the account of the Fund. Cash maintained
on the
books of the Custodian (including its branches, subsidiaries and
affiliates), regardless of currency denomination, is maintained
in bank
accounts established under, and subject to the laws of the State
of
Ohio.
|
| 4.6 |
Collection
of Income.
The Custodian shall use reasonable commercial efforts to collect
all
income and other payments with respect to the Foreign Securities
held
hereunder to which the Funds shall be entitled and shall credit
such
income, as collected, to the Funds. In the event that extraordinary
measures are required to collect such income, KCM and the Custodian
shall
consult as to such measures and as to the compensation and expenses
of the
Custodian relating to such
measures.
|
19
| 4.7 |
Shareholder
Rights.
With respect to the foreign securities held pursuant to this Article
IV,
the Custodian will use reasonable commercial efforts to facilitate
the
exercise of voting and other shareholder rights, subject always
to the
laws, regulations and practical constraints that may exist in the
country
where such securities are issued. KCM and the Funds acknowledge
that local
conditions, including lack of regulation, onerous procedural obligations,
lack of notice and other factors may have the effect of severely
limiting
the ability of the Funds to exercise shareholder
rights.
|
| 4.8 |
Communications
Relating to Foreign Securities.
The Custodian shall transmit promptly to the Funds and KCM written
information with respect to materials received by the Custodian
via the
Foreign Sub-Custodians from issuers of the foreign securities being
held
for the account of the Funds (including, without limitation, pendency
of
calls and maturities of foreign securities and expirations of rights
in
connection therewith). With respect to tender or exchange offers,
the
Custodian shall transmit promptly to the Funds and KCM written
information
with respect to materials so received by the Custodian from issuers
of the
foreign securities whose tender or exchange is sought or from the
party
(or its agents) making the tender or exchange offer. The Custodian
shall
not be liable for any untimely exercise of any tender, exchange
or other
right or power in connection with foreign securities or other property
of
the Funds at any time held by it unless (i) the Custodian or the
respective Foreign Sub-Custodian is in actual possession of such
foreign
securities or property and (ii) the Custodian receives Proper Instructions
with regard to the exercise of any such right or power, and both
(i) and
(ii) occur at least three business days prior to the date on which
the
Custodian is to take action to exercise such right or
power.
|
| 4.9 |
Liability
of Foreign Sub-Custodian.
Each agreement pursuant to which the Custodian employs a Foreign
Sub-Custodian shall require the Foreign Sub-Custodian to exercise
reasonable care in the performance of its duties, and, to the extent
possible, to indemnify, and hold harmless, the Custodian from and
against
any loss, damage, cost, expense, liability or claim arising out
of or in
connection with the Foreign Sub-Custodian’s performance of such
obligations. At their election, the Funds shall be entitled to
be
subrogated to the rights of the Custodian with respect to any claims
against a Foreign Sub-Custodian as a consequence of any such loss,
damage,
cost, expense, liability or claim if and to the extent that the
Funds have
not been made whole for any such loss, damage, cost, expense, liability
or
claim.
|
| 4.10 |
Tax
Law.
The Custodian shall have no responsibility or liability for any
obligations now or hereafter imposed on KCM, the Funds or the Custodian
as
custodian of the Funds by the tax law of the United States or of
any state
or political subdivison thereof. It shall be the responsibility
of the
Funds to notify the Custodian of the obligations imposed on the
Funds or
the Custodian as custodian of the Funds by the tax law of countries
other
than those mentioned in the above sentence, including responsibility
for
withholding and other taxes, assessments or other governmental
charges,
certifications and governmental reporting. The sole responsibility
of the
Custodian with regard to such tax law shall be to use reasonable
efforts
to assist the Funds with respect to any claim for exemption or
refund
under the tax law of countries for which the Funds have provided
such
information.
|
20
| 4.11 |
Liability
of Custodian.
Except as may arise from the Custodian’s own negligence or willful
misconduct or the negligence or willful misconduct of a Sub-Custodian,
the
Custodian shall be without liability to the Funds and KCM for any
loss,
liability, claim or expense resulting from or caused by anything
which is
part of Country Risk. The Custodian shall be liable for the acts
or
omissions of a Foreign Sub-Custodian to the same extent as set
forth with
respect to the Custodians generally in this Agreement and, regardless
of
whether assets are maintained in the custody of a Foreign Sub-Custodian
or
a Foreign Securities System, the Custodian shall not be liable
for any
loss, damage, cost, expense, liability or claim resulting from
nationalization, expropriation, currency restrictions, or acts
of war or
terrorism, or any other loss where the Foreign Sub-Custodian has
otherwise
acted with reasonable care.
|
ARTICLE
V
PURCHASE
AND SALE OF INVESTMENTS OF THE FUNDS
| 5.1 |
Purchase
of Securities.
Promptly upon each purchase of Securities for the Funds, Written
Instructions shall be delivered to the Custodian, specifying (a)
the name
of the issuer or writer of such Securities, and the title or other
description thereof, (b) the number of shares, principal amount
(and
accrued interest, if any) or other units purchased, (c) the date
of
purchase and settlement, (d) the purchase price per unit, (e) the
total
amount payable upon such purchase, and (f) the name of the person
to whom
such amount is payable. The Custodian shall upon receipt of such
Securities purchased by the Funds pay out of the moneys held for
the
account of the Funds the total amount specified in such Written
Instructions to the person named therein. The Custodian shall not
be under
any obligation to pay out moneys to cover the cost of a purchase
of
Securities for the Funds, if in the Funds Custody Account there
is
insufficient cash available to the Funds for which such purchase
was
made.
|
| 5.2 |
Liability
for Payment in Advance of Receipt of Securities Purchased.
In any and every case where payment for the purchase of Securities
for the
Funds is made by the Custodian in advance of receipt of the Securities
purchased but in the absence of specified Written Instructions
to so pay
in advance, the Custodian shall be liable to the Funds for such
Securities
to the same extent as if the Securities had been received by the
Custodian.
|
21
| 5.3 |
Sale
of Securities.
Promptly upon each sale of Securities by the Funds, Written Instructions
shall be delivered to the Custodian, specifying (a) the name of
the issuer
or writer of such Securities, and the title or other description
thereof,
(b) the number of shares, principal amount (and accrued interest,
if any),
or other units sold, (c) the date of sale and settlement, (d) the
sale
price per unit, (e) the total amount payable upon such sale, and
(f) the
person to whom such Securities are to be delivered. Upon receipt
of the
total amount payable to the Funds as specified in such Written
Instructions, the Custodian shall deliver such Securities to the
person
specified in such Written Instructions. Subject to the foregoing,
the
Custodian may accept payment in such form as shall be satisfactory
to it,
and may deliver Securities and arrange for payment in accordance
with the
customs prevailing among dealers in
Securities.
|
| 5.4 |
Delivery
of Securities Sold.
Notwithstanding Section 5.3 above or any other provision of this
Agreement, the Custodian, when instructed to deliver Securities
against
payment, shall be entitled, if in accordance with generally accepted
market practice, to deliver such Securities prior to actual receipt
of
final payment therefor. In any such case, the Funds shall bear
the risk
that final payment for such Securities may not be made or that
such
Securities may be returned or otherwise held or disposed of by
or through
the person to whom they were delivered, and the Custodian shall
have no
liability for any for the
foregoing.
|
| 5.5 |
Payment
for Securities Sold, etc.
In
its sole discretion and from time to time, the Custodian may credit
a
Fund’s Custody Account, prior to actual receipt of final payment thereof,
with (i) proceeds from the sale of Securities which it has been
instructed
to deliver against payment, (ii) proceeds from the redemption of
Securities or other assets of the Funds, and (iii) income from
cash,
Securities or other assets of the Funds. Any such credit shall
be
conditional upon actual receipt by Custodian of final payment and
may be
reversed if final payment is not actually received in full. The
Custodian
may, in its sole discretion and from time to time, permit the Funds
to use
funds so credited to the Fund Custody Accounts in anticipation
of actual
receipt of final payment. Any such funds shall be repayable immediately
upon demand made by the Custodian at any time prior to the actual
receipt
of all final payments in anticipation of which funds were credited
to the
Fund Custody Accounts.
|
| 5.6 |
Advances
by Custodian for Settlement.
The Custodian may, in its sole discretion and from time to time,
advance
funds to the Funds to facilitate the settlement of a Fund's transactions
in the Fund Custody Accounts. Any such advance shall be repayable
immediately upon demand made by
Custodian.
|
ARTICLE
VI
REDEMPTION
OF FUND SHARES
| 6.1 |
Transfer
of Funds.
From such funds as may be available for the purpose in the relevant
Fund
Custody Account, and upon receipt of Proper Instructions specifying
that
the funds are required to redeem Shares of the Funds, the Custodian
shall
wire each amount specified in such Proper Instructions to or through
such
bank as KCM or the Funds may designate with respect to such amount
in such
Proper Instructions.
|
22
| 6.2 |
No
Duty Regarding Paying Banks.
The Custodian shall not be under any obligation to effect payment
or
distribution by any bank designated in Proper Instructions given
pursuant
to Section 6.1 above of any amount paid by the Custodian to such
bank in
accordance with such Proper
Instructions.
|
ARTICLE
VII
SEGREGATED
ACCOUNTS
Upon
receipt of Proper Instructions, the Custodian shall establish and maintain
a
segregated account or accounts for and on behalf of the Funds, into which
account or accounts may be transferred cash and/or Securities, including
Securities maintained in a Depository Account,
| (a) |
in
accordance with the provisions of any agreement among
the Funds or KCM, the Custodian and a broker-dealer registered
under the
1934 Act and a member of the NASD (or any futures commission merchant
registered under the Commodity Exchange Act), relating to compliance
with
the rules of The Options Clearing Corporation and of any registered
national securities exchange (or the Commodity Futures Trading
Commission
or any registered contract market), or of any similar organization
or
organizations, regarding escrow or other arrangements in connection
with
transactions by the Funds,
|
| (b) |
for
purposes of segregating cash or Securities in connection with securities
options purchased or written by the Funds or in connection with
financial
futures contracts (or options thereon) purchased or sold by the
Funds,
|
| (c) |
which
constitute collateral for loans of Securities made by the
Funds,
|
| (d) |
for
purposes of compliance by the Funds with requirements under the
1940 Act
for the maintenance of segregated accounts by registered investment
companies in connection with reverse repurchase agreements and
when-issued, delayed delivery and firm commitment transactions,
and
|
| (e) |
for
other proper corporate purposes, but only upon receipt of, in addition
to
Proper Instructions, a certified copy of a resolution of the Board
of
Directors/Trustees, certified by an Officer, setting forth the
purpose or
purposes of such segregated account and declaring such purposes
to be
proper corporate purposes.
|
23
Each
segregated account established under this Article VI shall be established
and
maintained for the Funds only. All Proper Instructions relating to a segregated
account shall specify the Funds.
ARTICLE
VIII
CONCERNING
THE CUSTODIAN
| 8.1 |
Standard
of Care.
The Custodian shall be held to the exercise of reasonable care
in carrying
out its obligations under this Agreement, and shall be without
liability
to KCM or any Fund for any loss, damage, cost, expense (including
attorneys' fees and disbursements), liability or claim unless such
loss,
damage, cost, expense, liability or claim arises from negligence,
bad
faith or willful misconduct on its part or on the part of any
Sub-Custodian appointed pursuant to Section 3.3 above. The Custodian
shall
be entitled to rely on and may act upon advice of counsel on all
matters,
and shall be without liability for any action reasonably taken
or omitted
pursuant to such advice. The Custodian shall promptly notify KCM
of any
action taken or omitted by the Custodian pursuant to advice of
counsel.
The Custodian shall not be under any obligation at any time to
ascertain
whether KCM or the Funds is in compliance with the 1940 Act, the
regulations thereunder, the provisions of KCM's charter documents
or
by-laws, or its investment objectives and policies as then in
effect.
|
| 8.2 |
Actual
Collection Required.
The Custodian shall not be liable for, or considered to be the
custodian
of, any cash belonging to the Funds or any money represented by
a check,
draft or other instrument for the payment of money, until the Custodian
or
its agents actually receive such cash or collect on such
instrument.
|
| 8.3 |
No
Responsibility for Title, etc.
So
long as and to the extent that it is in the exercise of reasonable
care,
the Custodian shall not be responsible for the title, validity
or
genuineness of any property or evidence of title thereto received
or
delivered by it pursuant to this
Agreement.
|
| 8.4 |
Limitation
on Duty to Collect.
Custodian shall not be required to enforce collection, by legal
means or
otherwise, of any money or property due and payable with respect
to
Securities held for the Funds if such Securities are in default
or payment
is not made after due demand or
presentation.
|
| 8.5 |
Reliance
Upon Documents and Instructions.
The Custodian shall be entitled to rely upon any certificate, notice
or
other instrument in writing received by it and reasonably believed
by it
to be genuine. The Custodian shall be entitled to rely upon any
Oral
Instructions and any Written Instructions actually received by
it pursuant
to this Agreement.
|
| 8.6 |
Express
Duties Only.
The Custodian shall have no duties or obligations whatsoever except
such
duties and obligations as are specifically set forth in this Agreement,
and no covenant or obligation shall be implied in this Agreement
against
the Custodian.
|
24
| 8.7 |
Co-operation.
The Custodian shall cooperate with and supply necessary information
to the
entity or entities appointed by the Funds or KCM to keep the books
of
account of the Funds and/or compute the value of the assets of
the Funds.
The Custodian shall take all such reasonable actions as the Funds
or KCM
may from time to time request to enable the Funds or KCM to obtain,
from
year to year, favorable opinions from the Fund's independent accountants
with respect to the Custodian's activities hereunder in connection
with
(a) the preparation of the Funds’ reports on Form N-1A, Form N-CSR and
Form N-SAR and any other reports required by the Securities and
Exchange
Commission, and (b) the fulfillment by the Funds of any other requirements
of the Securities and Exchange
Commission.
|
ARTICLE
IX
INDEMNIFICATION
| 9.1 |
Indemnification
by KCM and the Funds.
KCM and the Funds shall indemnify, defend and hold harmless the
Custodian
and any Sub-Custodian appointed pursuant to Section 3.3 above,
and any
nominee of the Custodian or of such Sub-Custodian, from and against
any
loss, damage, cost, expense (including attorneys' fees and disbursements),
liability (including, without limitation, liability arising under
the
Securities Act of 1933, the 1934 Act, the 1940 Act, and any state
or
foreign securities and/or banking laws) or claim arising directly
or
indirectly (a) from the fact that Securities are registered in
the name of
any such nominee, or (b) from any action or inaction by the Custodian
or
such Sub-Custodian (i) at the request or direction of or in reliance
on
the advice of KCM or the Funds, or (ii) upon Proper Instructions,
or (c)
generally, from the performance of its obligations under this Agreement
or
any sub-custody agreement with a Sub-Custodian appointed pursuant
to
Section 3.3 above, provided that neither the Custodian nor any
such
Sub-Custodian shall be indemnified, defended and held harmless
from and
against any such loss, damage, cost, expense, liability or claim
arising
from the Custodian's or such Sub-Custodian's negligence, bad faith
or
willful misconduct.
|
| 9.2 |
Indemnification
by Custodian.
The Custodian shall indemnify, defend and hold harmless KCM and
the Funds
from and against any loss, damage, cost, expense (including attorneys'
fees and disbursements), liability (including without limitation,
liability arising under the Securities Act of 1933, the 1934 Act,
the 1940
Act, and any state or foreign securities and/or banking laws) or
claim
arising from the negligence, bad faith or willful misconduct of
the
Custodian or any Sub-Custodian appointed pursuant to Section 3.3
above, or
any nominee of the Custodian or of such
Sub-Custodian.
|
25
| 9.3 |
Indemnity
to be Provided.
If KCM requests the Custodian to take any action with respect to
Securities, which may, in the opinion of the Custodian, result
in the
Custodian or its nominee becoming liable for the payment of money
or
incurring liability of some other form, the Custodian shall not
be
required to take such action until KCM shall have provided indemnity
therefor to the Custodian in an amount and form satisfactory to
the
Custodian.
|
| 9.4 |
Security.
If the Custodian advances cash or Securities to the Funds for any
purpose,
either at KCM's request or as otherwise contemplated in this Agreement,
or
in the event that the Custodian or its nominee incurs, in connection
with
its performance under this Agreement, any loss, damage, cost, expense
(including attorneys' fees and disbursements), liability or claim
(except
such as may arise from its or its nominee's negligence, bad faith
or
willful misconduct), then, in any such event, any property at any
time
held for the account of the Funds shall be security therefor, and
should
the Funds fail promptly to repay or indemnify the Custodian, the
Custodian
shall be entitled to utilize available cash of such Fund and to
dispose of
other assets of such Fund to the extent necessary to obtain reimbursement
or indemnification.
|
ARTICLE
X
FORCE
MAJEURE
Neither
the Custodian, the Funds nor KCM shall be liable for any failure or delay
in
performance of their obligations under this Agreement arising out of or caused,
directly or indirectly, by circumstances beyond its reasonable control,
including, without limitation, acts of God; earthquakes; fires; floods; wars;
civil or military disturbances; sabotage; strikes; epidemics; riots; power
failures; computer failure and any such circumstances beyond its reasonable
control as may cause interruption, loss or malfunction of utility,
transportation, computer (hardware or software) or telephone communication
service; accidents; labor disputes; acts of civil or military authority;
governmental actions; or inability to obtain labor, material, equipment or
transportation; provided, however, that the Custodian in the event of a failure
or delay (i) shall not discriminate against the Funds in favor of any other
customer of the Custodian in making computer time and personnel available
to
input or process the transactions contemplated by this Agreement and (ii)
shall
use its best efforts to ameliorate the effects of any such failure or
delay.
ARTICLE
XI
EFFECTIVE
PERIOD; TERMINATION
| 11.1 |
Effective
Period.
This Agreement shall become effective as of its execution and shall
continue in full force and effect until terminated as hereinafter
provided.
|
| 11.2 |
Termination.
Either party hereto may terminate this Agreement by giving to the
other
party a notice in writing specifying the date of such termination,
which
shall be not less than sixty (60) days after the date of the giving
of
such notice. If a successor custodian shall have been appointed
by the
Board of Directors/Trustees, the Custodian shall, upon receipt
of a notice
of acceptance by the successor custodian, on such specified date
of
termination (a) deliver directly to the successor custodian all
Securities
(other than Securities held in a Book-Entry System or Securities
Depository) and cash then owned by the Funds and held by the Custodian
as
custodian, and (b) transfer any Securities held in a Book-Entry
System or
Securities Depository to an account of or for the benefit of the
Funds at
the successor custodian, provided that KCM shall have paid to the
Custodian all fees, expenses and other amounts to the payment or
reimbursement of which it shall then be entitled. Upon such delivery
and
transfer, the Custodian shall be relieved of all obligations under
this
Agreement. KCM may at any time immediately terminate this Agreement
in the
event of the appointment of a conservator or receiver for the Custodian
by
regulatory authorities or upon the happening of a like event at
the
direction of an appropriate regulatory agency or court of competent
jurisdiction.
|
26
| 11.3 |
Failure
to Appoint Successor Custodian.
If a successor custodian is not designated by KCM or the Funds
on or
before the date of termination specified pursuant to Section 11.1
above,
then the Custodian shall have the right to deliver to a bank or
corporation company of its own selection, which (a) is a “bank” as defined
in the 1940 Act and (b) has aggregate capital, surplus and undivided
profits as shown on its then most recent published report of not
less than
$25 million, all Securities, cash and other property held by Custodian
under this Agreement and to transfer to an account of or for the
Funds at
such bank or trust company all Securities of the Funds held in
a
Book-Entry System or Securities Depository. Upon such delivery
and
transfer, such bank or trust company shall be the successor custodian
under this Agreement and the Custodian shall be relieved of all
obligations under this Agreement.
|
ARTICLE
XII
COMPENSATION
OF CUSTODIAN
The
Custodian shall be entitled to compensation as agreed upon from time to time
by
KCM and the Custodian. The fees and other charges in effect on the date hereof
and applicable to the Funds are set forth in Exhibit C attached
hereto.
ARTICLE
XIII
NOTICES
Any
notice required or permitted to be given by either party to the other shall
be
in writing and shall be deemed to have been given on the date delivered
personally or by courier service, or three (3) days after sent by registered
or
certified mail, postage prepaid, return receipt requested, or on the date
sent
and confirmed received by facsimile transmission to the other party’s address
set forth below:
Notice
to
KCM and the Funds shall be sent to:
27
Xxxxxxxxx
Capital Management, Inc.
0000
Xxxx
00xx
Xxxxx
Xxxxxxx
Xxxxxxx, XX 00000
with
a
copy to:
U.S.
Bancorp Fund Services, LLC
000
Xxxx
Xxxxxxxx Xxxxxx
0xx
Xxxxx
Xxxxxxxxx,
Xxxxxxxxx 00000
Attention:
Xxxxxx Xxxxxxxxx
and
notice to the Custodian shall be sent to:
U.S.
Bank
National Association
000
Xxxxxx Xxxxxx, X.X. XX-XX-X0XX
Xxxxxxxxxx,
Xxxx 00000
Attention:
Mutual Fund Custody Services
Facsimile:
(000) 000-0000
or
at
such other address as either party shall have provided to the other by notice
given in accordance with this Article XIII.
ARTICLE
XIV
MISCELLANEOUS
| 14.1 |
Governing
Law.
This Agreement shall be governed by and construed in accordance
with the
laws of the State of Ohio.
|
| 14.2 |
References
to Custodian.
KCM shall not circulate any printed matter which contains any reference
to
Custodian without the prior written approval of Custodian, excepting
printed matter contained in the prospectus or statement of additional
information for the Funds and such other printed matter as merely
identifies Custodian as custodian for the Funds. KCM shall submit
printed
matter requiring approval to Custodian in draft form, allowing
sufficient
time for review by Custodian and its counsel prior to any deadline
for
printing.
|
| 14.3 |
No
Waiver.
No failure by either party hereto to exercise, and no delay by
such party
in exercising, any right hereunder shall operate as a waiver thereof.
The
exercise by either party hereto of any right hereunder shall not
preclude
the exercise of any other right, and the remedies provided herein
are
cumulative and not exclusive of any remedies provided at law or
in
equity.
|
28
| 14.4 |
Amendments.
This Agreement cannot be changed orally and no amendment to this
Agreement
shall be effective unless evidenced by an instrument in writing
executed
by the parties hereto.
|
| 14.5 |
Counterparts.
This Agreement may be executed in one or more counterparts, and
by the
parties hereto on separate counterparts, each of which shall be
deemed an
original but all of which together shall constitute but one and
the same
instrument.
|
| 14.6 |
Severability.
If any provision of this Agreement shall be invalid, illegal or
unenforceable in any respect under any applicable law, the validity,
legality and enforceability of the remaining provisions shall not
be
affected or impaired thereby.
|
| 14.7 |
Successors
and Assigns.
This Agreement shall be binding upon and shall inure to the benefit
of the
parties hereto and their respective successors and assigns; provided,
however, that this Agreement shall not be assignable by either
party
hereto without the written consent of the other party
hereto.
|
| 14.8 |
Headings.
The headings of sections in this Agreement are for convenience
of
reference only and shall not affect the meaning or construction
of any
provision of this Agreement.
|
ARTICLE
XV
REPRESENTATIONS
AND WARRANTIES
|
15.1
|
Representations
and Warranties of KCM and the Funds.
KCM and each Fund hereby represent and warrant to the Custodian,
which
representations and warranties shall be deemed to be continuing
throughout
the term of this Agreement, that:
|
(a)
It is
duly organized and existing under the laws of the jurisdiction of its
organization, with full power to carry on its business as now conducted,
to
enter into this Agreement and to perform its obligations hereunder;
(b)
This
Agreement has been duly authorized, executed and delivered by KCM and the
Funds
in accordance with all requisite action and constitutes a valid and legally
binding obligation of KCM and the Funds, enforceable in accordance with its
terms, subject to bankruptcy, insolvency, reorganization, moratorium and
other
laws of general application affecting the rights and remedies of creditors
and
secured parties; and
(c)
It is
conducting its business in compliance in all material respects with all
applicable laws and regulations, both state and federal, and has obtained
all
regulatory approvals necessary to carry on its business as now conducted;
there
is no statute, rule, regulation, order or judgment binding on it and no
provision of its charter, bylaws or any contract binding it or affecting
its
property which would prohibit its execution or performance of this
Agreement.
29
|
15.2
|
Representations
and Warranties of the Custodian.
The Custodian hereby represents and warrants to KCM and the Funds,
which
representations and warranties shall be deemed to be continuing
throughout
the term of this Agreement, that:
|
(a)
It is
duly organized and existing under the laws of the jurisdiction of its
organization, with full power to carry on its business as now conducted,
to
enter into this Agreement and to perform its obligations hereunder;
(b)
It is
a U.S. Bank as defined in section (a)(7) of Rule 17f-5.
(c)
This
Agreement has been duly authorized, executed and delivered by the Custodian
in
accordance with all requisite action and constitutes a valid and legally
binding
obligation of the Custodian, enforceable in accordance with its terms, subject
to bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting the rights and remedies of creditors and secured parties;
and
(d)
It is
conducting its business in compliance in all material respects with all
applicable laws and regulations, both state and federal, and has obtained
all
regulatory approvals necessary to carry on its business as now conducted;
there
is no statute, rule, regulation, order or judgment binding on it and no
provision of its charter, bylaws or any contract binding it or affecting
its
property which would prohibit its execution or performance of this Agreement.
IN
WITNESS WHEREOF,
the
parties hereto have caused this Amended and Restated Agreement to be executed
by
a duly authorized officer on one or more counterparts as of the date first
above
written.
|
U.S.
Bank National Association
|
Xxxxxxxxx
Capital Management, Inc.
|
|
By:
/s/ Xxx X.
Xxxxxxx
|
By:
/s/ Xxxx X.
Xxxxxxxxx
|
|
Xxx X. Xxxxxxx, Senior Vice President
|
Xxxx X. Xxxxxxxxx, President
|
|
Buffalo
Balanced Fund, Inc.
|
|
|
Buffalo
High Yield Fund, Inc.
|
|
|
Buffalo
Large Cap Fund, Inc.
|
|
|
Buffalo
USA Global Fund, Inc.
|
|
|
Buffalo
Small Cap Fund, Inc.
|
|
|
Buffalo
Funds (the Delaware statutory trust)
|
|
|
By:
/s/ Xxxx X.
Xxxxxxx
|
|
|
Xxxx X. Xxxxxxx, President
|
30
EXHIBIT
A
AUTHORIZED
PERSONS
Set
forth
below are the names and specimen signatures of the persons authorized by
KCM to
administer the Fund Custody Accounts.
|
Authorized
Persons
|
Specimen
Signatures
|
|
|
|
|
President:
|
________________ |
|
Secretary:
|
________________ |
|
Treasurer:
|
________________ |
|
Vice
President:
|
________________ |
|
Adviser
Employees:
|
________________ |
| ________________ | |
|
Transfer
Agent/Fund Accountant
|
|
|
Employees:
|
________________ |
| ________________ | |
| ________________ | |
| ________________ | |
| ________________ | |
31
EXHIBIT
B
US
Bank Institutional Custody Services
Standards
of Service Guide
US
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 US Bank to guarantee processing. Failure
to
meet these deadlines will result in settlement at our client's risk. In all
cases, US Bank will make every effort to complete all processing on a timely
basis.
US
Bank
is a direct participant of the Depository Trust Company, a direct member
of the
Federal Reserve Bank of Cleveland, and utilizes the Bank of New York as its
agent for ineligible and foreign securities.
For
corporate reorganizations, US Bank utilizes SEI's Reorg Source, Financial
Information, Inc., XCITEK, DTC Important Notices, Capital Changes Daily (CCH)
and the Wall
Street Journal.
For
bond
calls and mandatory puts, US Bank utilizes SEI's Bond Source, Xxxxx Information
Systems, Standard & Poor's Corporation, XCITEK, and DTC Important Notices.
US Bank will not notify clients of optional put opportunities.
Any
securities delivered free to US Bank or its agents must be received three
(3)
business days prior to any payment or settlement in order for the US 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 of Service Guide is subject to change.
Should any changes be made US Bank will provide you with an updated copy
of its
Standards of Service Guide.
32
US
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 Cleveland
for U.S.
Bank, N.A. ABA# 000000000
CINTI/1050
For
Account #______________
|
|
Federal
Reserve Book Entry (Repurchase Agreement Collateral Only)
|
1:00
P.M. on Settlement Date
|
Federal
Reserve Bank of Cleveland
for U.S.
Bank, N.A. ABA# 000000000
CINTI/1040
For
Account #______________
|
|
PTC
Securities
(GNMA
Book Entry)
|
12:00
P.M. on Settlement Date
|
PTC
For Account BYORK
Firstar
Bank / 117612
|
|
Physical
Securities
|
9:30
A.M. EST on Settlement Date
(for
Deliveries, by 4:00 P.M. on Settlement Date minus 1)
|
Bank
of New York
One
Wall Street- 3rd
Floor - Window A
Xxx
Xxxx, XX 00000
For
account of U.S. Bank / Cust #117612
|
|
CEDEL/EURO-CLEAR
|
11:00
A..M. on Settlement Date minus 2
|
Cedel
a/c 55021
FFC:
a/c 387000
U.S. Bank
/Global Omnibus
Euroclear
a/c 97816
FFC:
a/c 387000
U.S. Bank/Global
Omnibus
|
|
Cash
Wire Transfer
|
3:00
P.M.
|
U.S. Bank,
X.X. Xxxxx/Trust ABA# 000000000
Credit
Account #112950027
Account
of U.S. Bancorp Trust Services
Further
Credit to___________;
Acc#__________
|
*
All
times listed are Eastern Standard Time.
33
US
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.
34
US
Bank Corporate Reorganization Standards
|
Type
of Action
|
Notification to
Client
|
Deadline
for Client Instructions
to
US Bank
|
Transaction
Posting
|
|
|
Rights,
Warrants,
and
Optional Mergers
|
Later
of 10 business days prior to expiration or receipt of
notice
|
5
business days prior to expiration
|
Upon
receipt
|
|
|
Mandatory
Puts with
Option
to Retain
|
Later
of 10 business days prior to expiration or receipt of
notice
|
5
business days prior to expiration
|
Upon
receipt
|
|
|
Class
Actions
|
10
business days prior to expiration date
|
5
business days prior to expiration
|
Upon
receipt
|
|
|
Voluntary
Tenders,
Exchanges,
and
Conversions
|
Later
of 10 business days prior to expiration or receipt of
notice
|
5
business days prior to expiration
|
Upon
receipt
|
|
|
Mandatory
Puts, Defaults, Liquidations, Bankruptcies, Stock Splits, Mandatory
Exchanges
|
At
posting of funds or securities received
|
None
|
Upon
receipt
|
|
|
Full
and Partial Calls
|
Later
of 10 business days prior to expiration or receipt of
notice
|
None
|
Upon
receipt
|
NOTE:
Fractional shares/par amounts resulting from any of the above will be
sold.
35
EXHIBIT C
Fund
Names
|
Name
of Fund/Series
|
Date
Added
|
|
Buffalo
Balanced Fund, Inc.
|
April
25, 2003
|
|
Buffalo
High Yield Fund, Inc.
|
April
25, 2003
|
|
Buffalo
Large Cap Fund, Inc.
|
April
25, 2003
|
|
Buffalo
Small Cap Fund, Inc.
|
April
25, 2003
|
|
Buffalo
USA Global Fund, Inc.
|
April
25, 2003
|
|
Buffalo
Funds, a Delaware statutory trust, consisting of the following
series
|
|
|
Buffalo
Mid Cap Fund
|
April
25, 2003
|
|
Buffalo
Science & Technology Fund
|
April
25, 2003
|
|
Buffalo
Micro Cap Fund
|
May
21, 2004
|
|
Buffalo
Jayhawk China Fund
|
December
1,
2006
|
U.S.
Bank National Association. Domestic Custody Fee
Schedule
Fees
for
Custodian Services are to be paid by U.S. Bancorp Fund Services, LLC (“USBFS”)
pursuant to Exhibit G of the Master Services Agreement, dated April 25,
2003, by and between USBFS and Xxxxxxxxx Capital Management, Inc. Exhibit G
of that Agreement is hereby incorporated by reference.
36
Exhibit
D
Global
Sub-Custodial Services Fee Schedule and Eligible Forgeign
Custodians
|
GLOBAL
SUB-CUSTODIAL SERVICES
ANNUAL
FEE SCHEDULE
|
||||||||
|
Country
|
Instrument
|
Safekeeping
(BPS)
|
Transaction
Fee
|
Country
|
Instrument
|
Safekeeping
(BPS)
|
Transaction
Fee
|
|
|
Argentina
|
All
|
15.00
|
$40
|
Latvia
|
Equities/Bonds
|
30.00
|
$75
|
|
|
Australia
|
All
|
2.00
|
$30
|
Latvia
|
Gov't
Bonds
|
15.00
|
$75
|
|
|
Austria
|
Equities/Bonds
|
3.50
|
$35
|
Lebanon
|
All
|
25.00
|
$90
|
|
|
Austria
|
Depo
Receipt
|
20.00
|
$35
|
Lithuania
|
All
|
20.00
|
$50
|
|
|
Austria
|
non
ATS ALL
|
25.00
|
$90
|
Luxembourg
|
All
|
4.00
|
$25
|
|
|
Bahrain
|
All
|
50.00
|
$140
|
Malaysia
|
All
|
6.00
|
$80
|
|
|
Bangladesh
|
All
|
40.00
|
$150
|
Mali
|
All
|
40.00
|
$155
|
|
|
Belgium
|
All
|
2.50
|
$45
|
Malta
|
All
|
22.00
|
$75
|
|
|
Benin
|
All
|
40.00
|
$155
|
Mauritius
|
All
|
30.00
|
$100
|
|
|
Bermuda
|
All
|
15.00
|
$60
|
Mexico
|
All
|
3.00
|
$20
|
|
|
Bolivia
|
All
|
60.00
|
$150
|
Morocco
|
All
|
35.00
|
$100
|
|
|
Botswana
|
All
|
25.00
|
$50
|
Namibia
|
All
|
30.00
|
$50
|
|
|
Brazil
|
All
|
15.00
|
$35
|
Netherlands
|
All
|
3.00
|
$25
|
|
|
Bulgaria
|
All
|
40.00
|
$80
|
New
Zealand
|
All
|
3.00
|
$40
|
|
|
Burkina
Faso
|
All
|
40.00
|
$155
|
Niger
|
All
|
40.00
|
$155
|
|
|
Canada
|
All
|
1.25
|
$12
|
Nigeria
|
All
|
30.00
|
$50
|
|
|
Cayman
Islands
|
All
|
1.25
|
$10
|
Norway
|
All
|
3.00
|
$45
|
|
|
Channel
Islands
|
All
|
1.25
|
$20
|
Oman
|
All
|
50.00
|
$140
|
|
|
Chile
|
All
|
20.00
|
$60
|
Pakistan
|
All
|
30.00
|
$100
|
|
|
China-Shanghai
|
All
|
15.00
|
$65
|
Palestinian
|
All
|
45.00
|
$140
|
|
|
China-Shenzhen
|
All
|
15.00
|
$65
|
Peru
|
All
|
45.00
|
$105
|
|
|
Columbia
|
All
|
40.00
|
$100
|
Philippines
|
All
|
8.00
|
$75
|
|
|
Costa
Rica
|
All
|
15.00
|
$60
|
Poland
|
All
|
25.00
|
$50
|
|
|
Croatia
|
All
|
35.00
|
$65
|
Portugal
|
All
|
15.00
|
$85
|
|
|
Cyprus
|
All
|
15.00
|
$45
|
Qatar
|
All
|
45.00
|
$140
|
|
|
Czech
Republic
|
All
|
20.00
|
$50
|
Romania
|
All
|
35.00
|
$100
|
|
|
Denmark
|
All
|
3.00
|
$50
|
Russia
|
Equities/Bonds
|
30.00
|
$200
|
|
|
EASDAQ
|
All
|
5.50
|
$60
|
Russia
|
MINFIN
|
15.00
|
$50
|
|
|
Ecuador
|
All
|
35.00
|
$65
|
Senegal
|
All
|
40.00
|
$155
|
|
|
Egypt
|
All
|
40.00
|
$100
|
Singapore
|
All
|
3.00
|
$40
|
|
|
Estonia
|
All
|
7.00
|
$25
|
Slovak
Republic
|
All
|
25.00
|
$110
|
|
|
Euromarkets
|
All
|
1.50
|
$10
|
Slovenia
|
All
|
25.00
|
$110
|
|
|
Finland
|
All
|
5.00
|
$45
|
South
Africa
|
All
|
3.00
|
$15
|
|
|
France
|
All
|
2.50
|
$45
|
South
Korea
|
All
|
10.00
|
$20
|
|
|
Germany
|
All
|
1.00
|
$30
|
Spain
|
All
|
3.00
|
$50
|
|
|
Ghana
|
All
|
25.00
|
$50
|
Sri
Lanka
|
All
|
15.00
|
$60
|
|
|
Greece
|
All
|
20.00
|
$105
|
Swaziland
|
All
|
30.00
|
$50
|
|
|
Guinea
Bissau
|
All
|
40.00
|
$155
|
Sweden
|
All
|
2.00
|
$45
|
|
|
Hong
Kong
|
All
|
6.00
|
$60
|
Switzerland
|
All
|
2.00
|
$50
|
|
|
Hungary
|
All
|
35.00
|
$135
|
Taiwan
|
All
|
20.00
|
$125
|
|
|
Iceland
|
All
|
28.00
|
$80
|
Thailand
|
All
|
6.00
|
$45
|
|
|
India
|
All
|
65.00
|
$250
|
Togo
|
All
|
40.00
|
$155
|
|
|
Indonesia
|
All
|
12.00
|
$100
|
Trinidad
& Tobago
|
All
|
30.00
|
$65
|
|
|
Ireland
|
All
|
3.00
|
$30
|
Tunisia
|
All
|
40.00
|
$45
|
|
|
Israel
|
All
|
15.00
|
$45
|
Turkey
|
All
|
15.00
|
$15
|
|
|
Italy
|
All
|
3.00
|
$50
|
UAE
|
All
|
40.00
|
$110
|
|
|
Ivory
Coast
|
All
|
40.00
|
$155
|
United
Kingdom
|
All
|
1.50
|
$10
|
|
|
Jamaica
|
All
|
35.00
|
$50
|
Ukraine
|
All
|
30.00
|
$45
|
|
|
Japan
|
All
|
1.50
|
$15
|
Uruguay
|
All
|
50.00
|
$65
|
|
|
Jordan
|
All
|
40.00
|
$125
|
Venezuela
|
All
|
40.00
|
$125
|
|
|
Kazakhstan
|
Equities
|
60.00
|
$150
|
Vietnam
|
All
|
35.00
|
$110
|
|
|
Kazakhstan
|
Bonds
|
40.00
|
$160
|
Zambia
|
All
|
30.00
|
$50
|
|
|
Kenya
|
All
|
30.00
|
$50
|
Zimbabwe
|
All
|
30.00
|
$50
|
|
Base
Fee: A
monthly
base charge of $1,200.00 per account (fund) will apply.
*Any
Non-Eurobond assets held in CEDEL and Euroclear will be charged at the local
market price quote.
**
All
fees quoted are payable monthly
37
Exhibit
D (continued)
Eligible
Forgeign Custodians
(to
be provided)
38
