CUSTODY AGREEMENT
THIS AGREEMENT is made and entered into as of this 20th day of May,
2005, by and between XXXX FAMILY OF FUNDS, a Delaware statutory trust (the
"Trust"), and U.S. BANK NATIONAL ASSOCIATION, a national banking association
organized and existing under the laws of the United States of America with its
principal place of business at Cincinnati, Ohio (the "Custodian").
WHEREAS, the Trust is registered under the Investment Company Act of 1940,
as amended (the "1940 Act"), as an open-end management investment company, and
is authorized to issue shares of beneficial interest in separate series, with
each such series representing interests in a separate portfolio of securities
and other assets;
WHEREAS, the Custodian is a bank having the qualifications prescribed in
Section 26(a)(1) of the 1940 Act; and
WHEREAS, the Trust desires to retain the Custodian to act as custodian of
the cash and securities of each series of the Trust listed on Exhibit C hereto
(as amended from time to time) (each a "Fund" and collectively, the "Funds").
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
CERTAIN DEFINITIONS
Whenever used in this Agreement, the following words and phrases shall
have the meanings set forth below unless the context otherwise requires:
1.1 "Authorized Person" means any Officer or other person duly
authorized by resolution of the Board of Trustees to give Oral
Instructions and Written Instructions on behalf of the Fund and
named in Exhibit A hereto or in such resolutions of the Board of
Trustees, certified by an Officer, as may be received by the
Custodian from time to time.
1.2 "Board of Trustees" shall mean the trustees from time to time
serving under the Trust's declaration of trust, as amended from time
to time.
1.3 "Book-Entry System" shall mean a federal book-entry system as
provided in Subpart O of Treasury Circular Xx. 000, 00 XXX 306, in
Subpart B of 31 CFR Part 350, or in such book-entry regulations of
federal agencies as are substantially in the form of such Subpart O.
1.4 "Business Day" shall mean any day recognized as a settlement day by
The New York Stock Exchange, Inc., and any other day for which the
Trust computes the net asset value of Shares of the Fund.
1.5 "Fund Custody Account" shall mean any of the accounts in the name of
the Trust, which is provided for in Section 3.2 below.
1.6 "IRS" shall mean the Internal Revenue Service.
1.7 "NASD" shall mean The National Association of Securities Dealers,
Inc.
1.8 "Officer" shall mean the Chairman, President, any Vice President,
any Assistant Vice President, the Secretary, any Assistant
Secretary, the Treasurer, or any Assistant Treasurer of the Trust.
1.9 "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 any two
Authorized Persons, (ii) recorded and kept among the records of the
Custodian made in the ordinary course of business, and (iii) orally
confirmed by the Custodian. The Trust shall cause all Oral
Instructions to be confirmed by Written Instructions prior to the
end of the next Business Day. If such Written Instructions
confirming Oral Instructions are not received by the Custodian prior
to a transaction, it shall in no way affect the validity of the
transaction or the authorization thereof by the Trust. If Oral
Instructions vary from the Written Instructions that purport to
confirm them, the Custodian shall notify the Trust of such variance
but such Oral Instructions will govern unless the Custodian has not
yet acted.
1.10 "Proper Instructions" shall mean Oral Instructions or Written
Instructions.
1.11 "SEC" shall mean the Securities and Exchange Commission.
1.12 "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 service.
1.13 "Securities Depository" shall mean The Depository Trust Company and
any other clearing agency registered with the SEC under Section 17A
of the Securities 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.
1.14 "Shares" shall mean, with respect to a Fund, the units of beneficial
interest issued by the Trust on account of the Fund.
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1.15 "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," as that term is defined in
Rule 17f-5 under the 1940 Act, having a contract with the Custodian
which the Custodian has determined will provide reasonable care of
assets of the Fund based on the standards specified in Section 3.3
below. Such contract shall be in writing and shall include
provisions that provide: (i) for indemnification or insurance
arrangements (or any combination of the foregoing) such that the
Fund will be adequately protected against the risk of loss of assets
held in accordance with such contract; (ii) that the Fund's assets
will not be subject to any right, charge, security interest, lien or
claim of any kind in favor of the Sub-Custodian or its creditors
except a claim of payment for their safe custody or administration,
in the case of cash deposits, liens or rights in favor of creditors
of the Sub-Custodian arising under bankruptcy, insolvency, or
similar laws; (iii) that beneficial ownership for the Fund's assets
will be freely transferable without the payment of money or value
other than for safe custody or administration; (iv) that adequate
records will be maintained identifying the assets as belonging to
the Fund or as being held by a third party for the benefit of the
Fund; (v) that the Fund's independent public accountants will be
given access to those records or confirmation of the contents of
those records; and (vi) that the Fund will receive periodic reports
with respect to the safekeeping of the Fund's assets, including, but
not limited to, notification of any transfer to or from a Fund's
account or a third party account containing assets held for the
benefit of the Fund. Such contract may contain, in lieu of any or
all of the provisions specified 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
Fund assets as the specified provisions.
1.16 "Written Instructions" shall mean (i) written communications
actually received by the Custodian and signed by any two Authorized
Persons, (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 Trustees, a copy of which,
certified by an Officer, shall have been delivered to the Custodian.
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ARTICLE II
APPOINTMENT OF CUSTODIAN
2.1 Appointment. The Trust hereby appoints the Custodian as custodian of
all Securities and cash owned by or in the possession of the Fund at
any time during the period of this Agreement, 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 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.
2.2 Documents to be Furnished. The following documents, including any
amendments thereto, will be provided contemporaneously with the
execution of the Agreement to the Custodian by the Trust:
(a) A copy of the Trust's declaration of trust, certified by the
Secretary;
(b) A copy of the Trust's bylaws, certified by the Secretary;
(c) A copy of the resolution of the Board of Trustees of the Trust
appointing the Custodian, certified by the Secretary;
(d) A copy of the current prospectus of the Fund (the
"Prospectus"); and
(e) A certification of the Chairman or the President and the
Secretary of the Trust setting forth the names and signatures
of the current Officers of the Trust and other Authorized
Persons.
2.3 Notice of Appointment of Transfer Agent. The Trust agrees to notify
the Custodian in writing of the appointment, termination or change
in appointment of any transfer agent of the Fund.
ARTICLE III
CUSTODY OF CASH AND SECURITIES
3.1 Segregation. All Securities and non-cash property held by the
Custodian for the account of the Fund (other than Securities
maintained in a Securities Depository or Book-Entry System) shall be
physically segregated from other Securities and non-cash property in
the possession of the Custodian (including the Securities and
non-cash property of the other series of the Trust) 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 Trust coupled with the name of the Fund, subject only to draft
or order of the Custodian, in which the Custodian shall enter and
carry all Securities, cash and other assets of such Fund which are
delivered to it.
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3.3 Appointment of Agents.
(a) In its discretion, the Custodian may appoint one or more
Sub-Custodians to act as Securities Depositories or as sub-custodians to
hold Securities and cash of the Fund and to carry out such other
provisions of this Agreement as it may determine; provided, however, that
the appointment of any such agents and maintenance of any Securities and
cash of the Fund shall be at the Custodian's expense and shall not relieve
the Custodian of any of its obligations or liabilities under this
Agreement. The Custodian shall be liable for the actions of any
Sub-Custodians appointed by it as if such actions had been done by the
Custodian.
(b) If, after the initial approval of Sub-Custodians by the Board of
Trustees in connection with this Agreement, the Custodian wishes to
appoint other Sub-Custodians to hold property of the Fund, it will so
notify the Trust and provide it with information reasonably necessary to
determine any such new Sub-Custodian's eligibility under Rule 17f-5 under
the 1940 Act, including a copy of the proposed agreement with such
Sub-Custodian. At the meeting of the Board of Trustees next following
receipt of such notice and information, the Trust shall give its written
approval or disapproval of the proposed action.
(c) The Agreement between the Custodian and each Sub-Custodian
acting hereunder shall contain the required provisions set forth in Rule
17f-5(c)(2) under the 1940 Act.
(d) At the end of each calendar quarter, the Custodian shall provide
written reports notifying the Board of Trustees of the placement of the
Securities and cash of the Fund with a particular Sub-Custodian and of any
material changes in the Fund's arrangements. The Custodian shall promptly
take such steps as may be required to withdraw assets of the Fund from any
Sub-Custodian that has ceased to meet the requirements of Rule 17f-5 under
the 1940 Act.
(e) With respect to its responsibilities under this Section 3.3, the
Custodian hereby warrants to the Trust that it agrees to exercise
reasonable care, prudence and diligence such as a person having
responsibility for the safekeeping of property of the Fund. The Custodian
further warrants that the Fund's assets will be subject to reasonable care
if maintained with a 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), its method of keeping custodial
records, and its security and data protection practices; (ii) whether the
Sub-Custodian has the requisite financial strength to provide reasonable
care for Fund assets; (iii) the Sub-Custodian's general reputation and
standing and, in the case of a Securities Depository, the Securities
Depository's operating history and number of participants; and (iv)
whether the Fund will have jurisdiction over and be able to enforce
judgments against the Sub-Custodian, such as by virtue of the existence of
any offices of the Sub-Custodian in the United States or the
Sub-Custodian's consent to service of process in the United States.
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(f) The Custodian shall establish a system to monitor the
appropriateness of maintaining the Fund's assets with a particular
Sub-Custodian and the contract governing the Fund's arrangements with such
Sub-Custodian.
3.4 Delivery of Assets to Custodian. The Trust shall deliver, or cause
to be delivered, to the Custodian all of the Fund's Securities, cash
and other investment assets, including (i) all payments of income,
payments of principal and capital distributions received by the Fund
with respect to such Securities, cash or other assets owned by the
Fund at any time during the period of this Agreement, and (ii) all
cash received by the Fund for the issuance of Shares. The Custodian
shall not be responsible for such Securities, cash or other assets
until actually received by it.
3.5 Securities Depositories and Book-Entry Systems. The Custodian may
deposit and/or maintain Securities of the Fund in a Securities
Depository or in a Book-Entry System, subject to the following
provisions:
(a) The Custodian, on an on-going basis, shall deposit in a
Securities Depository or Book-Entry System all Securities eligible for
deposit therein and shall make use of such Securities Depository or
Book-Entry System to the extent possible and practical in connection with
its performance hereunder, including, without limitation, in connection
with settlements of purchases and sales of Securities, loans of
Securities, and deliveries and returns of collateral consisting of
Securities.
(b) Securities of the Fund kept in a Book-Entry System or Securities
Depository shall be kept in an account ("Depository Account") of the
Custodian in such Book-Entry System or Securities Depository which
includes only assets held by the Custodian as a fiduciary, custodian or
otherwise for customers.
(c) The records of the Custodian with respect to Securities of the
Fund maintained in a Book-Entry System or Securities Depository shall, by
book-entry, identify such Securities as belonging to the Fund.
(d) If Securities purchased by the Fund are to be held in a
Book-Entry System or Securities Depository, the Custodian shall pay for
such Securities upon (i) receipt of advice from the Book-Entry System or
Securities Depository that such Securities have been transferred to the
Depository Account, and (ii) the making of an entry on the records of the
Custodian to reflect such payment and transfer for the account of the
Fund. If Securities sold by the Fund are held in a Book-Entry System or
Securities Depository, the Custodian shall transfer such Securities upon
(i) receipt of advice from the Book-Entry System or Securities Depository
that payment for such Securities has been transferred to the Depository
Account, and (ii) the making of an entry on the records of the Custodian
to reflect such transfer and payment for the account of the Fund.
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(e) The Custodian shall provide the Trust with copies of any report
(obtained by the Custodian from a Book-Entry System or Securities
Depository in which Securities of the Fund are kept) on the internal
accounting controls and procedures for safeguarding Securities deposited
in such Book-Entry System or Securities Depository.
(f) Notwithstanding anything to the contrary in this Agreement, the
Custodian shall be liable to the Trust for any loss or damage to the Fund
resulting from (i) the use of a Book-Entry System or Securities Depository
by reason of any negligence or willful misconduct on the part of the
Custodian or any Sub-Custodian, or (ii) failure of the Custodian or any
Sub-Custodian to enforce effectively such rights as it may have against a
Book-Entry System or Securities Depository. At its election, the Trust
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.
(g) With respect to its responsibilities under this Section 3.5 and
pursuant to Rule 17f-4 under the 1940 Act, the Custodian hereby warrants
to the Trust that it agrees to (i) exercise due care in accordance with
reasonable commercial standards in discharging its duty as a securities
intermediary to obtain and thereafter maintain such assets, (ii) provide,
promptly upon request by the Trust, such reports as are available
concerning the Custodian's internal accounting controls and financial
strength, and (iii) require any Sub-Custodian to exercise due care in
accordance with reasonable commercial standards in discharging its duty as
a securities intermediary to obtain and thereafter maintain assets
corresponding to the security entitlements of its entitlement holders.
3.6 Disbursement of Moneys from Fund Custody Account. Upon receipt of
Proper Instructions, the Custodian shall disburse moneys from the
Fund Custody Account but only in the following cases:
(a) For the purchase of Securities for the Fund but only in
accordance with Section 4.1 of this Agreement and only (i) in the case of
Securities (other than options on Securities, futures contracts and
options on futures contracts), against the delivery to the Custodian (or
any Sub-Custodian) 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 any 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 any Sub-Custodian) of evidence of title thereto in favor
of the Fund or any nominee referred to in Section 3.9 below; and (iv) in
the case of repurchase or reverse repurchase agreements entered into
between the Trust and a bank which is a member of the Federal Reserve
System or between the Trust 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;
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(b) In connection with the conversion, exchange or surrender, as set
forth in Section 3.7(f) below, of Securities owned by the Fund;
(c) For the payment of any dividends or capital gain distributions
declared by the Fund;
(d) In payment of the redemption price of Shares as provided in
Section 5.1 below;
(e) For the payment of any expense or liability incurred by the
Fund, including, but not limited to, the following payments for the
account of the Fund: interest; taxes; administration, investment advisory,
accounting, auditing, transfer agent, custodian, director and legal fees;
and other operating expenses of the Fund; in all cases, whether or not
such expenses are to be in whole or in part capitalized or treated as
deferred expenses;
(f) For transfer in accordance with the provisions of any agreement
among the Trust, the Custodian and a broker-dealer registered under the
1934 Act and a member of the NASD, relating to compliance with rules of
the Options Clearing Corporation and of any registered national securities
exchange (or of any similar organization or organizations) regarding
escrow or other arrangements in connection with transactions by the Fund;
(g) For transfer in accordance with the provisions of any agreement
among the Trust, the Custodian and a futures commission merchant
registered under the Commodity Exchange Act, relating to compliance with
the rules of the Commodity Futures Trading Commission and/or any contract
market (or any similar organization or organizations) regarding account
deposits in connection with transactions by the Fund;
(h) For the funding of any uncertificated time deposit or other
interest-bearing account with any banking institution (including the
Custodian), which deposit or account has a term of one year or less; and
(i) For any other proper purpose, but only upon receipt, in addition
to Proper Instructions, of a copy of a resolution of the Board of
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.
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3.7 Delivery of Securities from Fund Custody Account. Upon receipt of
Proper Instructions, the Custodian shall release and deliver
Securities from the Fund Custody Account but only in the following
cases:
(a) Upon the sale of Securities for the account of the Fund but only
against receipt of payment therefor in cash, by certified or cashiers
check or bank credit;
(b) In the case of a sale effected through a Book-Entry System or
Securities Depository, in accordance with the provisions of Section 3.5
above;
(c) To an offeror's depository agent in connection with tender or
other similar offers for Securities of the Fund; provided that, in any
such case, the cash or other consideration is to be delivered to the
Custodian;
(d) To the issuer thereof or its agent (i) for transfer into the
name of the Fund, the Custodian or any Sub-Custodian, or 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 the Securities, for examination in
accordance with the "street delivery" custom;
(f) For exchange or conversion pursuant to any plan of merger,
consolidation, recapitalization, reorganization or readjustment of the
issuer of such Securities, or pursuant to provisions for conversion
contained in such Securities, or pursuant to any deposit agreement,
including surrender or receipt of underlying Securities in connection with
the issuance or cancellation of depository receipts; provided that, in any
such case, the new Securities and cash, if any, are to be delivered to the
Custodian;
(g) Upon receipt of payment therefor pursuant to any repurchase or
reverse repurchase agreement entered into by the Fund;
(h) In the case of warrants, rights or similar Securities, upon the
exercise thereof, provided that, in any such case, the new Securities and
cash, if any, are to be delivered to the Custodian;
(i) For delivery in connection with any loans of Securities of the
Fund, but only against receipt of such collateral as the Trust shall have
specified to the Custodian in Proper Instructions;
(j) For delivery as security in connection with any borrowings by
the Fund requiring a pledge of assets by the Trust, but only against
receipt by the Custodian of the amounts borrowed;
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(k) Pursuant to any authorized plan of liquidation, reorganization,
merger, consolidation or recapitalization of the Trust;
(l) For delivery in accordance with the provisions of any agreement
among the Trust, the Custodian and a broker-dealer registered under the
1934 Act and a member of the NASD, relating to compliance with the rules
of the Options Clearing Corporation and of any registered national
securities exchange (or of any similar organization or organizations)
regarding escrow or other arrangements in connection with transactions by
the Fund;
(m) For delivery in accordance with the provisions of any agreement
among the Trust, the Custodian and a futures commission merchant
registered under the Commodity Exchange Act, relating to compliance with
the rules of the Commodity Futures Trading Commission and/or any contract
market (or any similar organization or organizations) regarding account
deposits in connection with transactions by the Fund; or
(n) For any other proper corporate purpose, but only upon receipt,
in addition to Proper Instructions, of a copy of a resolution of the Board
of 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 the Trust, the Custodian shall with respect to all
Securities held for the Fund:
(a) Subject to Section 9.4 below, collect on a timely basis all
income and other payments to which the Fund is entitled either by law or
pursuant to custom in the securities business;
(b) Present for payment and, subject to Section 9.4 below, collect
on a timely basis the amount payable upon all Securities which may mature
or be called, redeemed, or retired, or otherwise become payable;
(c) Endorse for collection, in the name of the Fund, checks, drafts
and other negotiable instruments;
(d) Surrender interim receipts or Securities in temporary form for
Securities in definitive form;
(e) Execute, as custodian, any necessary declarations or
certificates of ownership under the federal income tax laws or the laws or
regulations of any other taxing authority now or hereafter in effect, and
prepare and submit reports to the IRS and the Trust at such time, in such
manner and containing such information as is prescribed by the IRS;
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(f) Hold for the Fund, either directly or, with respect to
Securities held therein, through a Book-Entry System or Securities
Depository, all rights and similar Securities issued with respect to
Securities of the Fund; and
(g) In general, and except as otherwise directed in Proper
Instructions, attend to all non-discretionary details in connection with
the sale, exchange, substitution, purchase, transfer and other dealings
with Securities and other assets of the Fund.
3.9 Registration and Transfer of Securities. All Securities held for the
Fund that are issued or issuable only in bearer form shall be held
by the Custodian in that form, provided that any such Securities
shall be held in a Book-Entry System if eligible therefor. All other
Securities held for the Fund may be registered in the name of the
Fund, the Custodian, a Sub-Custodian or any nominee of any of them,
or in the name of a Book-Entry System, Securities Depository or any
nominee of either thereof. The Trust 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 referred to above or in the name of a Book-Entry System
or Securities Depository, any Securities registered in the name of
the Fund.
3.10 Records.
(a) The Custodian shall maintain complete and accurate records with
respect to Securities, cash or other property held for the Fund, including
(i) journals or other records of original entry containing an itemized
daily record in detail of all receipts and deliveries of Securities and
all receipts and disbursements of cash; (ii) ledgers (or other records)
reflecting (A) Securities in transfer, (B) Securities in physical
possession, (C) monies and Securities borrowed and monies and Securities
loaned (together with a record of the collateral therefor and
substitutions of such collateral), (D) dividends and interest received,
and (E) dividends receivable and interest receivable; and (iii) canceled
checks and bank records related thereto. The Custodian shall keep such
other books and records of the Fund as the Trust shall reasonably request,
or as may be required by the 1940 Act, including, but not limited to,
Section 31 of the 1940 Act and Rule 31a-2 promulgated thereunder.
(b) All such books and records maintained by the Custodian shall (i)
be maintained in a form acceptable to the Trust and in compliance with the
rules and regulations of the SEC, (ii) be the property of the Trust and at
all times during the regular business hours of the Custodian be made
available upon request for inspection by duly authorized officers,
employees or agents of the Trust and employees or agents of the SEC, and
(iii) if required to be maintained by Rule 31a-1 under the 1940 Act, be
preserved for the periods prescribed in Rules 31a-1 and 31a-2 under the
1940 Act.
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3.11 Fund Reports by Custodian. The Custodian shall furnish the Trust
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, the Custodian shall furnish the Trust with a
detailed statement of the Securities and moneys held by the
Custodian and the Sub-Custodians for the Fund under this Agreement.
3.12 Other Reports by Custodian. As the Trust may reasonably request from
time to time, the Custodian shall provide the Trust with reports on
the internal accounting controls and procedures for safeguarding
Securities which are employed by the Custodian or any Sub-Custodian.
3.13 Proxies and Other Materials. The Custodian shall cause all proxies
relating to Securities which are not registered in the name of the
Fund to be promptly executed by the registered holder of such
Securities, without indication of the manner in which such proxies
are to be voted, and shall promptly deliver to the Trust such
proxies, all proxy soliciting materials and all notices relating to
such Securities.
3.14 Information on Corporate Actions. The Custodian shall promptly
deliver to the Trust all information received by the Custodian and
pertaining to Securities being held by the Fund with respect to
optional tender or exchange offers, calls for redemption or
purchase, or expiration of rights as described in the Standards of
Service Guide attached as Exhibit B. If the Trust desires to take
action with respect to any tender offer, exchange offer or other
similar transaction, the Trust shall notify the Custodian at least
five Business Days prior to the date on which the Custodian is to
take such action. The Trust will provide or cause to be provided to
the Custodian all relevant information for any Security which has
unique put/option provisions at least five Business Days prior to
the beginning date of the tender period.
ARTICLE IV
PURCHASE AND SALE OF INVESTMENTS OF THE FUND
4.1 Purchase of Securities. Promptly upon each purchase of Securities
for the Fund, Written Instructions shall be delivered to the
Custodian, specifying (i) the name of the issuer or writer of such
Securities, and the title or other description thereof, (ii) the
number of shares, principal amount (and accrued interest, if any) or
other units purchased, (iii) the date of purchase and settlement,
(iv) the purchase price per unit, (v) the total amount payable upon
such purchase, and (vi) the name of the person to whom such amount
is payable. The Custodian shall upon receipt of such Securities
purchased by the Fund pay out of the moneys held for the account of
the Fund the total amount specified in such Written Instructions to
the person named therein. The Custodian shall not be under any
obligation to pay out moneys to cover the cost of a purchase of
Securities for the Fund, if in the Fund Custody Account there is
insufficient cash available to the Fund for which such purchase was
made.
12
4.2 Liability for Payment in Advance of Receipt of Securities Purchased.
In any and every case where payment for the purchase of Securities
for the Fund is made by the Custodian in advance of receipt of the
Securities purchased and in the absence of specified Written
Instructions to so pay in advance, the Custodian shall be liable to
the Fund for such payment.
4.3 Sale of Securities. Promptly upon each sale of Securities by the
Fund, Written Instructions shall be delivered to the Custodian,
specifying (i) the name of the issuer or writer of such Securities,
and the title or other description thereof, (ii) the number of
shares, principal amount (and accrued interest, if any), or other
units sold, (iii) the date of sale and settlement, (iv) the sale
price per unit, (v) the total amount payable upon such sale, and
(vi) the person to whom such Securities are to be delivered. Upon
receipt of the total amount payable to the Fund as specified in such
Written Instructions, the Custodian shall deliver such Securities to
the person specified in such Written Instructions. Subject to the
foregoing, the Custodian may accept payment in such form as shall be
satisfactory to it, and may deliver Securities and arrange for
payment in accordance with the customs prevailing among dealers in
Securities.
4.4 Delivery of Securities Sold. Notwithstanding Section 4.3 above or
any other provision of this Agreement, the Custodian, when
instructed to deliver Securities against payment, shall be entitled,
if in accordance with generally accepted market practice, to deliver
such Securities prior to actual receipt of final payment therefor.
In any such case, the Fund shall bear the risk that final payment
for such Securities may not be made or that such Securities may be
returned or otherwise held or disposed of by or through the person
to whom they were delivered, and the Custodian shall have no
liability for any for the foregoing.
4.5 Payment for Securities Sold. In its sole discretion and from time to
time, the Custodian may credit the Fund Custody Account, prior to
actual receipt of final payment thereof, with (i) proceeds from the
sale of Securities which it has been instructed to deliver against
payment, (ii) proceeds from the redemption of Securities or other
assets of the Fund, and (iii) income from cash, Securities or other
assets of the Fund. Any such credit shall be conditional upon actual
receipt by Custodian of final payment and may be reversed if final
payment is not actually received in full. The Custodian may, in its
sole discretion and from time to time, permit the Fund to use funds
so credited to the Fund Custody Account in anticipation of actual
receipt of final payment. Any such funds shall be repayable
immediately upon demand made by the Custodian at any time prior to
the actual receipt of all final payments in anticipation of which
funds were credited to the Fund Custody Account.
4.6 Advances by Custodian for Settlement. The Custodian may, in its sole
discretion and from time to time, advance funds to the Trust to
facilitate the settlement of a Fund's transactions in the Fund
Custody Account. Any such advance shall be repayable immediately
upon demand made by Custodian.
13
ARTICLE V
REDEMPTION OF FUND SHARES
5.1 Transfer of Funds. From such funds as may be available for the
purpose in the relevant Fund Custody Account, and upon receipt of
Proper Instructions specifying that the funds are required to redeem
Shares of the Fund, the Custodian shall wire each amount specified
in such Proper Instructions to or through such bank or broker-dealer
as the Trust may designate.
5.2 No Duty Regarding Paying Banks. Once the Custodian has wired amounts
to a bank or broker-dealer pursuant to Section 5.1 above, the
Custodian shall not be under any obligation to effect any further
payment or distribution by such bank or broker-dealer.
ARTICLE VI
SEGREGATED ACCOUNTS
Upon receipt of Proper Instructions, the Custodian shall establish and
maintain a segregated account or accounts for and on behalf of the Fund, into
which account or accounts may be transferred cash and/or Securities, including
Securities maintained in a Depository Account:
(a) in accordance with the provisions of any agreement among the
Trust, the Custodian and a broker-dealer registered under the 1934 Act and
a member of the NASD (or any futures commission merchant registered under
the Commodity Exchange Act), relating to compliance with the rules of the
Options Clearing Corporation and of any registered national securities
exchange (or the Commodity Futures Trading Commission or any registered
contract market), or of any similar organization or organizations,
regarding escrow or other arrangements in connection with transactions by
the Fund;
(b) for purposes of segregating cash or Securities in connection
with securities options purchased or written by the Fund or in connection
with financial futures contracts (or options thereon) purchased or sold by
the Fund;
(c) which constitute collateral for loans of Securities made by the
Fund;
(d) for purposes of compliance by the Fund with requirements under
the 1940 Act for the maintenance of segregated accounts by registered
investment companies in connection with reverse repurchase agreements and
when-issued, delayed delivery and firm commitment transactions; and
(e) for other proper corporate purposes, but only upon receipt of,
in addition to Proper Instructions, a certified copy of a resolution of
the Board of Trustees, certified by an Officer, setting forth the purpose
or purposes of such segregated account and declaring such purposes to be
proper corporate purposes.
14
Each segregated account established under this Article VI shall be
established and maintained for the Fund only. All Proper Instructions relating
to a segregated account shall specify the Fund.
ARTICLE VII
COMPENSATION OF CUSTODIAN
The Custodian shall be compensated for providing the services set forth in
this Agreement in accordance with the fee schedule set forth on Exhibit D hereto
(as amended from time to time). The Custodian shall also be compensated for such
out-of-pocket expenses (e.g., telecommunication charges, postage and delivery
charges, and reproduction charges) as are reasonably incurred by the Custodian
in performing its duties hereunder. The Trust shall pay all such fees and
reimbursable expenses within 30 calendar days following receipt of the billing
notice, except for any fee or expense subject to a good faith dispute. The Trust
shall notify the Custodian in writing within 30 calendar days following receipt
of each invoice if the Trust is disputing any amounts in good faith. The Trust
shall pay such disputed amounts within 10 calendar days of the day on which the
parties agree to the amount to be paid. With the exception of any fee or expense
the Trust is disputing in good faith as set forth above, unpaid invoices shall
accrue a finance charge of 1 1/2% per month after the due date. Notwithstanding
anything to the contrary, amounts owed by the Trust to the Custodian shall only
be paid out of the assets and property of the particular Fund involved.
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES
8.1 Representations and Warranties of the Trust. The Trust hereby
represents and warrants 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 the Trust in accordance with all requisite action and constitutes a
valid and legally binding obligation of the Trust, 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.
15
8.2 Representations and Warranties of the Custodian. The Custodian
hereby represents and warrants to the Trust, 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 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
(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.
ARTICLE IX
CONCERNING THE CUSTODIAN
9.1 Standard of Care. The Custodian shall exercise reasonable care in
the performance of its duties under this Agreement. The Custodian
shall not be liable for any error of judgment or mistake of law or
for any loss suffered by the Trust in connection with its duties
under this Agreement, except a loss arising out of or relating to
the Custodian's (or a Sub-Custodian's) refusal or failure to comply
with the terms of this Agreement (or any sub-custody agreement) or
from its (or a Sub-Custodian's) bad faith, negligence or willful
misconduct in the performance of its duties under this Agreement (or
any sub-custody agreement). The Custodian shall be entitled to rely
on and may act upon advice of counsel on all matters, and shall be
without liability for any action reasonably taken or omitted
pursuant to such advice. The Custodian shall promptly notify the
Trust of any action taken or omitted by the Custodian pursuant to
advice of counsel.
9.2 Actual Collection Required. The Custodian shall not be liable for,
or considered to be the custodian of, any cash belonging to the Fund
or any money represented by a check, draft or other instrument for
the payment of money, until the Custodian or its agents actually
receive such cash or collect on such instrument.
16
9.3 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.
9.4 Limitation on Duty to Collect. Custodian shall not be required to
enforce collection, by legal means or otherwise, of any money or
property due and payable with respect to Securities held for the
Fund if such Securities are in default or payment is not made after
due demand or presentation.
9.5 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.
9.6 Cooperation. The Custodian shall cooperate with and supply necessary
information to the entity or entities appointed by the Trust to keep
the books of account of the Fund and/or compute the value of the
assets of the Fund. The Custodian shall take all such reasonable
actions as the Trust may from time to time request to enable the
Trust to obtain, from year to year, favorable opinions from the
Trust's independent accountants with respect to the Custodian's
activities hereunder in connection with (i) the preparation of the
Trust's reports on Form N-1A and Form N-SAR and any other reports
required by the SEC, and (ii) the fulfillment by the Trust of any
other requirements of the SEC.
ARTICLE X
INDEMNIFICATION
10.1 Indemnification by Trust. The Trust shall indemnify and hold
harmless the Custodian, any Sub-Custodian and any nominee thereof
(each, an "Indemnified Party" and collectively, the "Indemnified
Parties") from and against any and all claims, demands, losses,
expenses and liabilities of any and every nature (including
reasonable attorneys' fees) that an Indemnified Party may sustain or
incur or that may be asserted against an Indemnified Party by any
person arising directly or indirectly (i) from the fact that
Securities are registered in the name of any such nominee, (ii) from
any action taken or omitted to be taken by the Custodian or such
Sub-Custodian (a) at the request or direction of or in reliance on
the advice of the Trust, or (b) upon Proper Instructions, or (iii)
from the performance of its obligations under this Agreement or any
sub-custody agreement, provided that neither the Custodian nor any
such Sub-Custodian shall be indemnified and held harmless from and
against any such claim, demand, loss, expense or liability arising
out of or relating to its refusal or failure to comply with the
terms of this Agreement (or any sub-custody agreement), or from its
bad faith, negligence or willful misconduct in the performance of
its duties under this Agreement (or any sub-custody agreement). This
indemnity shall be a continuing obligation of the Trust, its
successors and assigns, notwithstanding the termination of this
Agreement. As used in this paragraph, the terms "Custodian" and
"Sub-Custodian" shall include their respective directors, officers
and employees.
17
10.2 Indemnification by Custodian. The Custodian shall indemnify and hold
harmless the Trust from and against any and all claims, demands,
losses, expenses, and liabilities of any and every nature (including
reasonable attorneys' fees) that the Trust may sustain or incur or
that may be asserted against the Trust by any person arising out of
any action taken or omitted to be taken by an Indemnified Party as a
result of the Indemnified Party's refusal or failure to comply with
the terms of this Agreement (or any sub-custody agreement), or from
its bad faith, negligence or willful misconduct in the performance
of its duties under this Agreement (or any sub-custody agreement).
This indemnity shall be a continuing obligation of the Custodian,
its successors and assigns, notwithstanding the termination of this
Agreement. As used in this paragraph, the term "Trust" shall include
the Trust's trustees, officers and employees.
10.3 Security. If the Custodian advances cash or Securities to the Fund
for any purpose, either at the Trust'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 claim, demand, loss, expense or liability (including
reasonable attorneys' fees) (except such as may arise from its or
its nominee's bad faith, negligence or willful misconduct), then, in
any such event, any property at any time held for the account of the
Fund shall be security therefor, and should the Fund fail promptly
to repay or indemnify the Custodian, the Custodian shall be entitled
to utilize available cash of such Fund and to dispose of other
assets of such Fund to the extent necessary to obtain reimbursement
or indemnification.
10.4 Miscellaneous.
(a) Neither party to this Agreement shall be liable to the other
party for consequential, special or punitive damages under any provision
of this Agreement.
(b) The indemnity provisions of this Article shall indefinitely
survive the termination and/or assignment of this Agreement.
(c) In order that the indemnification provisions contained in this
Article shall apply, it is understood that if in any case the indemnitor
may be asked to indemnify or hold the indemnitee harmless, the indemnitor
shall be fully and promptly advised of all pertinent facts concerning the
situation in question, and it is further understood that the indemnitee
will use all reasonable care to notify the indemnitor promptly concerning
any situation that presents or appears likely to present the probability
of a claim for indemnification. The indemnitor shall have the option to
defend the indemnitee against any claim that may be the subject of this
indemnification. In the event that the indemnitor so elects, it will so
notify the indemnitee and thereupon the indemnitor shall take over
complete defense of the claim, and the indemnitee shall in such situation
initiate no further legal or other expenses for which it shall seek
indemnification under this section. The indemnitee shall in no case
confess any claim or make any compromise in any case in which the
indemnitor will be asked to indemnify the indemnitee except with the
indemnitor's prior written consent.
18
ARTICLE XI
FORCE MAJEURE
Neither the Custodian nor the Trust shall be liable for any failure or
delay in performance of its obligations under this Agreement arising out of or
caused, directly or indirectly, by circumstances beyond its reasonable control,
including, without limitation, acts of God; earthquakes; fires; floods; wars;
civil or military disturbances; acts of terrorism; 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 in the event of a failure or delay, the
Custodian (i) shall not discriminate against the Fund in favor of any other
customer of the Custodian in making computer time and personnel available to
input or process the transactions contemplated by this Agreement, and (ii) shall
use its best efforts to ameliorate the effects of any such failure or delay.
ARTICLE XII
PROPRIETARY AND CONFIDENTIAL INFORMATION
The Custodian agrees on behalf of itself and its directors, officers, and
employees to treat confidentially and as proprietary information of the Trust,
all records and other information relative to the Trust and prior, present, or
potential shareholders of the Trust (and clients of said shareholders), and not
to use such records and information for any purpose other than the performance
of its responsibilities and duties hereunder, except (i) after prior
notification to and approval in writing by the Trust, which approval shall not
be unreasonably withheld and may not be withheld where the Custodian may be
exposed to civil or criminal contempt proceedings for failure to comply, (ii)
when requested to divulge such information by duly constituted authorities, or
(iii) when so requested by the Trust. Records and other information which have
become known to the public through no wrongful act of the Custodian or any of
its employees, agents or representatives, and information that was already in
the possession of the Custodian prior to receipt thereof from the Trust or its
agent, shall not be subject to this paragraph.
19
Further, the Custodian will adhere to the privacy policies adopted by the
Trust pursuant to Title V of the Xxxxx-Xxxxx-Xxxxxx Act, as may be modified from
time to time. In this regard, the Custodian shall have in place and maintain
physical, electronic and procedural safeguards reasonably designed to protect
the security, confidentiality and integrity of, and to prevent unauthorized
access to or use of, records and information relating to the Trust and its
shareholders.
ARTICLE XIII
EFFECTIVE PERIOD; TERMINATION
13.1 Effective Period. This Agreement shall become effective as of the
date first written above and will continue in effect for a period of
one year.
13.2 Termination. Subsequent to the initial one-year term, this Agreement
may be terminated by either party upon giving 90 days prior written
notice to the other party or such shorter period as is mutually
agreed upon by the parties. Notwithstanding the foregoing, this
Agreement may be terminated by any party upon the breach of the
other party of any material term of this Agreement if such breach is
not cured within 15 days of notice of such breach to the breaching
party. In addition, the Trust 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.
13.3 Appointment of Successor Custodian. If a successor custodian shall
have been appointed by the Board of Trustees, the Custodian shall,
upon receipt of a notice of acceptance by the successor custodian,
on such specified date of termination (i) deliver directly to the
successor custodian all Securities (other than Securities held in a
Book-Entry System or Securities Depository) and cash then owned by
the Fund and held by the Custodian as custodian, and (ii) transfer
any Securities held in a Book-Entry System or Securities Depository
to an account of or for the benefit of the Fund at the successor
custodian, provided that the Trust shall have paid to the Custodian
all fees, expenses and other amounts to the payment or reimbursement
of which it shall then be entitled. In addition, the Custodian
shall, at the expense of the Trust, transfer to such successor all
relevant books, records, correspondence, and other data established
or maintained by the Custodian under this Agreement in a form
reasonably acceptable to the Trust (if such form differs from the
form in which the Custodian has maintained the same, the Trust shall
pay any expenses associated with transferring the data to such
form), and will cooperate in the transfer of such duties and
responsibilities, including provision for assistance from the
Custodian's personnel in the establishment of books, records, and
other data by such successor. Upon such delivery and transfer, the
Custodian shall be relieved of all obligations under this Agreement.
20
13.4 Failure to Appoint Successor Custodian. If a successor custodian is
not designated by the Trust on or before the date of termination of
this Agreement, then the Custodian shall have the right to deliver
to a bank or trust company of its own selection, which bank or trust
company (i) is a "bank" as defined in the 1940 Act, and (ii) has
aggregate capital, surplus and undivided profits as shown on its
most recent published report of not less than $25 million, all
Securities, cash and other property held by Custodian under this
Agreement and to transfer to an account of or for the Fund at such
bank or trust company all Securities of the Fund held in a
Book-Entry System or Securities Depository. Upon such delivery and
transfer, such bank or trust company shall be the successor
custodian under this Agreement and the Custodian shall be relieved
of all obligations under this Agreement. In addition, under these
circumstances, all books, records and other data of the Trust shall
be returned to the Trust.
ARTICLE XIV
MISCELLANEOUS
14.1 Compliance with Laws. The Trust has and retains primary
responsibility for all compliance matters relating to the Fund,
including but not limited to compliance with the 1940 Act, the
Internal Revenue Code of 1986, the Xxxxxxxx-Xxxxx Act of 2002, the
USA Patriot Act of 2002 and the policies and limitations of the Fund
relating to its portfolio investments as set forth in its Prospectus
and statement of additional information. The Custodian's services
hereunder shall not relieve the Trust of its responsibilities for
assuring such compliance or the Board of Trustee's oversight
responsibility with respect thereto.
14.2 Amendment. This Agreement may not be amended or modified in any
manner except by written agreement executed by the Custodian and the
Trust, and authorized or approved by the Board of Trustees.
14.3 Assignment. This Agreement shall extend to and be binding upon the
parties hereto and their respective successors and assigns;
provided, however, that this Agreement shall not be assignable by
the Trust without the written consent of the Custodian, or by the
Custodian without the written consent of the Trust accompanied by
the authorization or approval of the Board of Trustees.
14.4 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Ohio, without regard to
conflicts of law principles. To the extent that the applicable laws
of the State of Ohio, or any of the provisions herein, conflict with
the applicable provisions of the 1940 Act, the latter shall control,
and nothing herein shall be construed in a manner inconsistent with
the 1940 Act or any rule or order of the SEC thereunder.
14.5 No Agency Relationship. Nothing herein contained shall be deemed to
authorize or empower either party to act as agent for the other
party to this Agreement, or to conduct business in the name, or for
the account, of the other party to this Agreement.
21
14.6 Services Not Exclusive. Nothing in this Agreement shall limit or
restrict the Custodian from providing services to other parties that
are similar or identical to some or all of the services provided
hereunder.
14.7 Invalidity. Any provision of this Agreement which may be determined
by competent authority to be prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without invalidating
the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. In such
case, the parties shall in good faith modify or substitute such
provision consistent with the original intent of the parties.
14.8 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 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 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
and notice to the Trust shall be sent to:
Xxxx Family of Funds
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxx
Facsimile: (000) 000-0000
14.9 Multiple Originals. This Agreement may be executed on two or more
counterparts, each of which when so executed shall be deemed an
original, but such counterparts shall together constitute but one
and the same instrument.
14.10 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.
22
14.11 References to Custodian. The Trust shall not circulate any printed
matter which contains any reference to Custodian without the prior
written approval of Custodian, excepting printed matter contained in
the prospectus or statement of additional information for the Fund
and such other printed matter as merely identifies Custodian as
custodian for the Fund. The Trust 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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by a duly authorized officer on one or more counterparts as of the date
first above written.
XXXX FAMILY OF FUNDS U.S. BANK NATIONAL ASSOCIATION.
By: /s/ Xxxxxxx X. Xxxx By: /s/ Xxx X. Xxxxxxx
-------------------------------- --------------------------------
Xxxxxxx X. Xxxx
Title: President Title: Senior Vice President
----------------------------- -----------------------------
23
EXHIBIT A
AUTHORIZED PERSONS
Set forth below are the names and specimen signatures of the persons
authorized by the Trust to administer the Fund Custody Accounts.
Authorized Persons Specimen Signatures
President:
---------------------------------------------
Secretary:
---------------------------------------------
Treasurer:
---------------------------------------------
Vice President:
---------------------------------------------
Other:
---------------------------------------------
---------------------------------------------
---------------------------------------------
---------------------------------------------
---------------------------------------------
---------------------------------------------
---------------------------------------------
---------------------------------------------
---------------------------------------------
---------------------------------------------
A-1
EXHIBIT B
U.S. Bank Institutional Custody Services
Standards of Service Guide
U.S. Bank, N.A. ("USBank") 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 USBank to
guarantee processing. Failure to meet these deadlines will result in settlement
at our client's risk. In all cases, USBank will make every effort to complete
all processing on a timely basis.
USBank 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, USBank 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, USBank utilizes SEI's Bond Source,
Xxxxx Information Systems, Standard & Poor's Corporation, XCITEK, and DTC
Important Notices. USBank will not notify clients of optional put opportunities.
Any securities delivered free to USBank or its agents must be received
three (3) business days prior to any payment or settlement in order for the
USBank 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 USBank will provide
you with an updated copy of its Standards of Service Guide.
B-1
USBank 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 Firstar Bank, N.A. ABA# 000000000
CINTI/1050
For Account #_____________
Federal Reserve Book Entry 1:00 P.M. on Settlement Date Federal Reserve Bank of Cleveland
(Repurchase Agreement for Firstar Bank, N.A. ABA# 000000000
Collateral Only) CINTI/1040
For Account #_____________
PTC Securities 12:00 P.M. on Settlement Date PTC For Account BYORK
(GNMA Book Entry) Firstar Bank / 117612
Physical Securities 9:30 A.M. EST on Settlement Date Bank of New York
(for Deliveries, by 4:00 P.M. on One Wall Street- 3rd Floor - Window A
Settlement Date minus 1) Xxx Xxxx, XX 00000
For account of Firstar Bank / Cust #117612
Attn: Xxxxxx Xxxxxx
CEDEL/EURO-CLEAR 11:00 A.M. on Settlement Date minus 2 Cedel a/c 55021
FFC: a/c 387000
Firstar Bank /Global Omnibus
Euroclear a/c 97816
FFC: a/c 387000
Firstar Bank/Global Omnibus
Cash Wire Transfer 3:00 P.M. Firstar Bank, X.X. Xxxxx/Trust ABA# 000000000
Credit Account #112950027
Account of Firstar Trust Services
Further Credit to ___________
Account # _______________
* All times listed are Eastern Standard Time.
B-2
USBank 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.
B-3
USBank Corporate Reorganization Standards
Type of Action Notification to Client Deadline for Client Instructions Transaction
to USBank Posting
Rights, Warrants, Later of 10 business days prior to 5 business days prior to expiration Upon receipt
and Optional Mergers expiration or receipt of notice
Mandatory Puts with Later of 10 business days prior to 5 business days prior to expiration Upon receipt
Option to Retain expiration or receipt of notice
Class Actions 10 business days prior to expiration 5 business days prior to expiration Upon receipt
date
Voluntary Tenders, Later of 10 business days prior to 5 business days prior to expiration Upon receipt
Exchanges, expiration or receipt of notice
and Conversions
Mandatory Puts, Defaults, At posting of funds or securities None Upon receipt
Liquidations, Bankruptcies, Stock received
Splits, Mandatory Exchanges
Full and Partial Calls Later of 10 business days prior to None Upon receipt
expiration or receipt of notice
NOTE: Fractional shares/par amounts resulting from any of the above will
be sold.
B-4
EXHIBIT C
Fund Names
Separate Series of Xxxx Family of Funds
Name of Series Date Added
-------------- ----------
Halter Xxxx USX China Fund
C-1
EXHIBIT D
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DOMESTIC CUSTODY SERVICES
FEE SCHEDULE
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Annual Fee Based Upon Market Value Per Fund*
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1.00 basis point on the first $200 million
.75 basis point on the next $800 million
.50 basis point on the balance of fund assets
Minimum annual fee per fund - $6,000
Portfolio Transaction Fees
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$ 5.00 per disbursement (waived if U.S. Bancorp is Administrator)
$ 7.00 per US Bank repurchase agreement transaction
$ 7.00 per book entry security (depository or Federal Reserve system) and non-US
Bank repurchase agrmt
$25.00 per portfolio transaction processed through our New
York custodian definitive security (physical)
$ 8.00 per principal paydown
$15.00 per option/future contract written, exercised or expired
$50.00 per Cedel/Euroclear transaction
$15.00 per mutual fund trade
$15.00 per Fed Wire
$15.00 per margin variation Fed wire
$ 6.00 per short sale
$150.00 per segregated account per year
ReportSource - Web reporting
$150 /month
o A transaction is a purchase/sale of a security, free receipt/free
delivery, maturity, tender or exchange.
o No charge for the initial conversion free receipt.
o Overdrafts - charged to the account at prime interest rate plus 2.
o Plus out-of-pocket expenses, and extraordinary expenses based upon
complexity, including items such as shipping fees or transfer fees.
Fees are billed monthly.
* Subject to CPI increase, Milwaukee MSA.
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D-1
