Exhibit (g) under Form N-1A
Exhibit 10 under Item 601/ Reg. S-K
CUSTODIAN, FUND ACCOUNTING AND RECORDKEEPING AGREEMENT
BY AND BETWEEN
THE RIVERFRONT FUNDS
AND
THE PROVIDENT BANK
This Custodian, Fund Accounting and Recordkeeping Agreement is entered into
as of December 29, 1998, by and between The Riverfront Funds, an Ohio business
trust (the "Fund"), having its principal place of business at 0000 Xxxxxxx Xxxx,
Xxxxxxxx, Xxxx 00000, and The Provident Bank, an Ohio banking corporation
("Provident"), having its principal place of business at Xxx Xxxx Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxx 00000.
WITNESSETH:
WHEREAS, the Fund is authorized to issue shares in separate series, with
each such series representing interests in a separate portfolio of securities
and other assets;
WHEREAS, the Fund offers from time to time shares in one or more series,
and desires to retain Provident to provide the services described herein to
those series, as are now or hereafter may be identified in Schedule A hereto, as
may be amended from time to time and made subject to this Agreement in
accordance with paragraph 13. Each such series is herein referred to singly as a
"Portfolio" and collectively, as the "Portfolios"; and
NOW THEREFORE, in consideration of the mutual agreements herein contained,
the Fund and Provident agree as follows:
1. The Fund appoints Provident as the Custodian of the assets of the
Portfolios, subject to the provisions hereof. Provident hereby accepts such
appointment as Custodian. As such Custodian, Provident shall retain all
securities, commodities, cash and other assets now owned or hereafter acquired
by each Portfolio, and the Portfolio shall deliver and pay or cause to be
delivered and paid to Provident, as Custodian, all securities, cash and other
assets now owned or hereafter acquired by the Portfolio during the period of
this Agreement.
2. All securities delivered to Provident (other than in bearer form) shall
be properly endorsed and in proper form for transfer into or in the name of the
appropriate Portfolio, or a nominee of Provident for the exclusive use of the
Portfolio or of such other nominee as may be mutually agreed upon by Provident
and the Fund.
3. The Fund shall deliver to Provident certified or authenticated copies of
its Declaration of Trust and By-Laws, all amendments thereto, a certified copy
of the resolution of the Fund's Board of Trustees appointing Provident to act in
the capacities covered by this Agreement and authorizing the signing of this
Agreement and copies of such resolutions of its Board of Trustees, contracts and
other documents as may be reasonably required by Provident in the performance of
its duties hereunder.
4. As Custodian, Provident shall promptly:
A. Safekeeping. Keep safely in a separate account the
securities and other assets of each Portfolio of the Fund,
including, without limitation, all securities in bearer form, other
than securities which are maintained pursuant to paragraph 4B in a
Securities System (as defined in paragraph 4B) and, on behalf of
the Portfolio, receive delivery of certificates, including without
limitation all securities in bearer form, for safekeeping and keep
such certificates physically segregated at all times from those of
any other person. Provident shall maintain records of all receipts,
deliveries and locations of such securities, together with a
current inventory thereof, and shall conduct periodic physical
inspections of certificates representing bonds and other securities
held by it under this Agreement at least annually in such manner as
Provident shall determine from time to time to be advisable in
order to verify the accuracy of such inventory. Provident shall
provide the Fund with copies of any reports of its internal count
or other verification of the securities of the Portfolio held in
its custody, including reports on its own system of internal
accounting control. In addition, if and when independent certified
public accountants retained by Provident shall count or otherwise
verify the securities of the Portfolio held in Provident's custody,
Provident shall provide the Fund with a copy of the report of such
accountants. With respect to securities held by any agent or
Subcustodian appointed pursuant to paragraph 7C hereof, Provident
may rely upon certificates from such agent or Subcustodian as to
the holdings of such agent or Subcustodian, it being understood
that such reliance in no way releases Provident of its
responsibilities or liabilities under this Agreement. Provident
shall promptly report to the Fund the results of such inspections,
indicating any shortages or discrepancies uncovered thereby, and
take appropriate action to remedy any such shortages or
discrepancies.
B. Deposit of Portfolio Assets in Securities Systems.
Notwithstanding any other provision of this Agreement, Provident
may deposit and/or maintain securities owned by each Portfolio in
Depository Trust Company, a clearing agency registered with the
Securities and Exchange Commission (the "Commission") under Section
17A of the Securities Exchange Act of 1934 (the "Exchange Act"),
which acts as a securities depository, in any other clearing agency
registered under Section 17A of the Exchange Act and which has been
authorized by the Fund's Board of Trustees, in the book-entry
system authorized by the U.S. Department of the Treasury and
certain federal agencies or in any other book-entry system which
the Commission has authorized for use by investment companies as a
securities depository by order or interpretive or no-action letter
and which has been authorized by the Fund's Board of Trustees,
collectively referred to herein as "Securities System(s)," in
accordance with applicable Federal Reserve Board and Commission
rules and regulations, if any, and subject to the following
provisions:
1) Provident may keep securities of a Portfolio in a Securities
System provided that such securities are deposited in an account
("Account") of Provident in the Securities System which shall not
include any assets of Provident other than assets held as a
fiduciary, custodian or otherwise for customers;
2) The records of Provident with respect to securities of the
Portfolios which are maintained in a Securities System shall
identify by book-entry those securities belonging to such Portfolio;
3) Provident shall pay for securities purchased for the account of
each Portfolio upon (i) receipt of advice from the Securities
System that such securities have been transferred to the account,
and (ii) the making of an entry on the records of Provident to
reflect such payment and transfer for the account of the
Portfolio. Provident shall transfer securities sold for the
account of each Portfolio upon (i) receipt of advice from the
Securities System that payment for such securities has been
transferred to the account, and (ii) the making of an entry on the
records of Provident to reflect such transfer and payment for the
account of that Portfolio. Copies of all advices from the
Securities System of transfers of securities for the account of
each Portfolio shall identify the Portfolio, be maintained for such
Portfolio by Provident and be provided to the Fund at its request.
Provident shall furnish the Fund confirmation of each transfer to
or from the account of the Portfolios in the form of a written
advice or notice and shall furnish to the Fund copies of daily
transaction sheets reflecting each day's transactions in the
Securities System for the account of the Portfolios on the next
business day;
4) Provident shall promptly provide the Fund with any report
obtained by Provident on the Securities System's accounting system,
internal accounting control and procedures for safeguarding
securities deposited in the Securities System. Provident shall
promptly provide the Fund any report on Provident's accounting
system, internal accounting control and procedures for safeguarding
securities deposited with Provident which is reasonably requested
by the Fund;
5) Anything to the contrary in this Agreement notwithstanding,
Provident shall be liable to the Fund for any claim, loss,
liability, damage or expense to the Fund or its Portfolios,
including attorneys' fees, resulting from use of a Securities
System by reason of any negligence, misfeasance or misconduct of
Provident, its agents or any of its or their employees or from
failure of Provident or any such agent to enforce effectively such
rights as it may have against a Securities System. At the election
of the Fund, it shall be entitled to be subrogated to the rights of
Provident or its agents with respect to any claim against the
Securities System or any other person which Provident or its agents
may have as a consequence of any such claim, loss, liability,
damage or expense if and to the extent that the Fund has not been
made whole for any such loss or damage.
C. Provident's Records. The records of Provident (and its
agents and Subcustodians) with respect to its services for the Fund
shall at all reasonable times and upon reasonable notice (unless
otherwise required by law) during the regular business hours of
Provident (or its agents or Subcustodians) be open for inspection
by duly authorized officers, employees or agents of the Fund and
employees and agents of the Commission.
D. Delivery of Securities. Release and deliver securities owned
by a Portfolio held by Provident or in a Securities System account
of Provident only upon receipt of proper instructions (as defined
in paragraph 6A hereof; hereafter "Proper Instructions"), which may
be continuing instructions when deemed appropriate by the parties,
and only in the cases specified in paragraphs 4E, 4F, 4G, 4H, 4I,
4J, 4K, 4L, 4M and 4N hereof.
E. Registered Name, Nominee. Register securities of each
Portfolio held by Provident in the name of the Portfolio, of a
nominee of Provident for the exclusive use of such Portfolio, or of
such other nominee as may be mutually agreed upon, or of any
mutually acceptable nominee of any agent or Subcustodian appointed
pursuant to paragraph 7C hereof.
F. Purchases. Upon receipt of Proper Instructions, and insofar
as cash is available for the purpose, pay for and receive all
securities purchased for the account of a Portfolio, payment being
made only upon receipt of the securities by Provident (or any bank,
banking firm, responsible commercial agent or trust company doing
business in the United States and appointed pursuant to paragraph
7C hereof as Provident's agent or Subcustodian for this purpose)
registered as provided in paragraph 4E heretofore in form for
transfer satisfactory to Provident, or, in the case of repurchase
agreements entered into between a Portfolio and a bank or a dealer,
delivery of the securities either in certificate form or through an
entry crediting Provident's account at the Federal Reserve Bank
with such securities, or, upon receipt by Provident of a facsimile
copy of a letter of understanding with respect to a time deposit
account of a Portfolio signed by any bank, whether domestic or
foreign, and pursuant to Proper Instructions from the Fund, for
transfer to the time deposit account of the Portfolio in such bank;
such transfer may be effected prior to receipt of a confirmation
from a broker and/or the applicable bank. All securities accepted
by Provident shall be accompanied by payment of, or a "due xxxx"
for, any dividends, interest or other distributions of the issuer
due the purchaser. In any and every case of a purchase of
securities for the account of a Portfolio where payment is made by
Provident in advance of receipt of the securities purchased,
Provident shall be absolutely liable to the Fund and its Portfolios
for such securities to the same extent as if the securities had
been received by Provident, except that in the case of repurchase
agreements entered into by a Portfolio with a bank which is a
member of the Federal Reserve System, Provident may transfer funds
to the account of such bank prior to the receipt of written
evidence that the securities subject to such repurchase agreement
have been transferred by book-entry into a segregated
nonproprietary account of Provident maintained with the Federal
Reserve Bank of Cincinnati, provided that such securities have in
fact been so transferred by book-entry; provided, further, however,
that Provident and the Fund agree to use their best efforts to
ensure receipt by Provident of copies of documentation for each
such transaction as promptly as possible.
G. Exchanges. Upon receipt of Proper Instructions, exchange
securities, interim receipts or temporary securities held by it or
by any agent or Subcustodian appointed by it pursuant to paragraph
7C hereof for the account of each Portfolio, for other securities
alone or for other securities and cash, and expend cash insofar as
cash is available in connection with any merger, consolidation,
reorganization, recapitalization, split-up of shares, changes of
par value, conversion or in connection with the exercise of
warrants, subscription or purchase rights, or otherwise, and
deliver securities to the designated depository or other receiving
agent or Subcustodian in response to tender offers or similar
offers to purchase received in writing; provided that in any such
case the securities and/or cash to be received as a result of any
such exchange, expenditure or delivery are to be delivered to
Provident (or its agents or Subcustodians). Provident shall give
notice as provided under paragraph 15 hereof to the Fund in
connection with any transaction specified in this paragraph and at
the same time shall specify to the Fund whether such notice relates
to securities held by an agent or Subcustodian appointed pursuant
to paragraph 7C hereof, so that the Fund may issue to Provident
Proper Instructions for Provident to act thereon prior to any
expiration date (which shall be presumed to be two business days
prior to such date unless Provident has previously advised the Fund
of a different period). The Fund shall give to Provident full
details of the time and method of submitting securities in response
to any tender or similar offer, exercising any subscription or
purchase right or making any exchange pursuant to this paragraph.
When such securities are in the possession of an agent or
Subcustodian appointed by Provident pursuant to paragraph 7C
hereof, the Proper Instructions referred to in the preceding
sentence must be received by Provident in timely enough fashion
(which shall be presumed to be three business days unless Provident
has advised the Fund in writing of a different period) for
Provident to notify the agent or Subcustodian in sufficient time to
permit such agent to act prior to any expiration date.
H. Sales. Upon receipt of Proper Instructions and upon receipt
of full payment therefor, release and deliver securities which have
been sold for the account of a Portfolio. At the time of delivery
all such payments are to be made in cash, by a certified check upon
or a treasurer's or cashier's check of a bank, by effective bank
wire transfer through the Federal Reserve Wire System or, if
appropriate, outside of the Federal Reserve Wire System and
subsequent credit to such Portfolio's custodian account, or, in
case of delivery through a stock clearing company, by book-entry
credit by the stock clearing company in accordance with the then
current "street" custom.
I. Purchases by Issuer. Upon receipt of Proper Instructions,
release and deliver securities owned by a Portfolio to the issuer
thereof or its agent when such securities are called, redeemed,
retired or otherwise become payable; provided that in any such
case, the cash or other consideration is to be delivered to
Provident.
J. Changes of Name and Denomination. Upon receipt of Proper
Instructions, release and deliver securities owned by a Portfolio
to the issuer thereof or its agent for transfer into the name of
the Portfolio or of a nominee of Provident or of the Portfolio for
the exclusive use of the Portfolio or for exchange for a different
number of bonds, certificates or other evidence representing the
same aggregate face amount or number of units bearing the same
interest rate, maturity date and call provisions if any; provided
that in any such case, the new securities are to be delivered to
Provident.
K. Street Delivery. In connection with delivery in New York
City and upon receipt of Proper Instructions, which in the case of
registered securities may be standing instructions, release
securities owned by a Portfolio upon receipt of a written receipt
for such securities to the broker selling the same for examination
in accordance with the existing "street delivery" custom. In such
case, Provident 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
Provident's own negligence or willful misconduct. In every
instance, either payment in full for such securities shall be made
or such securities shall be returned to Provident that same day. In
the event existing "street delivery" custom is modified, Provident
shall obtain authorization from the Board of Trustees of the Fund
prior to any use of such modified "street delivery" custom.
L. Release of Securities for Use as Collateral. Upon receipt of
Proper Instructions and subject to the Declaration of Trust and
By-Laws of the Fund, release securities belonging to the Portfolio
to any bank or trust company for the purpose of pledge, mortgage or
hypothecation to secure any loan incurred by a Portfolio; provided,
however, that securities shall be released only upon payment to
Provident of the monies borrowed, except that in cases where
additional collateral is required to secure a borrowing already
made, subject to proper prior authorization from the Fund, further
securities may be released for that purpose. Upon receipt of Proper
Instructions, Provident shall pay such loan upon redelivery to it
of the securities pledged or hypothecated therefor and upon
surrender of the note or notes evidencing the loan.
M. Compliance with Applicable Rules and Regulations of The
Options Clearing Corporation and National Securities or Commodities
Exchanges or Commissions. Upon receipt of Proper Instructions,
deliver securities of a Portfolio in accordance with the provisions
of any agreement among the Fund, Provident and a broker-dealer
registered under the Exchange Act and a member of the National
Association of Securities Dealers, Inc. ("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 a Portfolio; or,
upon receipt of Proper Instructions, Provident shall deliver
securities in accordance with the provisions of any agreement among
the Fund, Provident 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 a
Portfolio.
N. Release or Delivery of Securities for Other Purposes. Upon
receipt of Proper Instructions, release or deliver any securities
held by it for the account of a Portfolio for any other purpose (in
addition to those specified in paragraphs 4D, 4E, 4F, 4G, 4H, 4I,
4J, 4K, 4L and 4M hereof) which the Fund declares is a proper
corporate purpose pursuant to Proper Instructions.
0. Proxies, Notices, Etc. Promptly forward upon receipt to the
Fund all forms of proxies and all notices of meetings and any other
notices or announcements affecting or relating to the securities,
including, without limitation, notices relating to class action
claims and bankruptcy claims, and upon receipt of Proper
Instructions execute and deliver or cause its nominee to execute
and deliver such proxies or other authorizations as may be
required. Provident, its nominee or its agents or Subcustodian
shall not vote any of the securities or execute any proxy to vote
thereon or give any consent or take any other action with respect
thereto (except as otherwise herein provided) unless ordered to do
so by Proper Instructions. Provident shall require its agents and
Subcustodians appointed pursuant to paragraph 7C hereof to forward
any such announcements and notices to Provident upon receipt.
P. Segregated Account. Upon receipt of Proper Instructions,
establish and maintain a segregated account or accounts for and on
behalf of each Portfolio, into which account or accounts may be
transferred cash and/or securities, including securities maintained
in an account by Provident pursuant to paragraph 4B hereof, (i) in
accordance with the provisions of any agreement among the Fund,
Provident and a broker-dealer registered under the Exchange 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 a Portfolio, (ii)
for purposes of segregating cash or government securities in
connection with options purchased, sold or written by a Portfolio
or commodity futures contracts or options thereon purchased or sold
by such Portfolio, (iii) for the purposes of compliance by the Fund
with the procedures required by Investment Company Act Release No.
10666, or any subsequent release or releases of the Commission
relating to the maintenance of segregated accounts by registered
investment companies and (iv), for other proper corporate purposes,
but only, in the case of clause (iv) , upon receipt of, in addition
to Proper Instructions, a certified copy of a resolution of the
Board of Trustees signed by an officer of the Fund and certified by
the Secretary or an Assistant Secretary, setting forth the purpose
or purposes of such segregated account and declaring such purposes
to be proper corporate purposes.
Q. Miscellaneous. In general, attend to all nondiscretionary
details in connection with the sale, exchange, substitution,
purchase, transfer or other dealing with such securities or
property of each Portfolio, except as otherwise directed by the
Fund pursuant to Proper Instructions. Provident shall render to the
Fund daily a report of all monies received or paid on behalf of the
Portfolio, an itemized statement of the securities and cash for
which it is accountable to the Fund under this Agreement and an
itemized statement of security transactions which settled the day
before and shall render to the Fund weekly an itemized statement of
security transactions which failed to settle as scheduled. At the
end of each week Provident shall provide a list of all security
transactions that remain unsettled at such time.
5. Additionally, as Custodian, Provident shall promptly:
A. Bank Account. Retain safely all cash of each Portfolio,
other than cash maintained by a Portfolio in a bank account
established and used in accordance with Rule 17f-3 under the 1940
Act, in the banking department of Provident in a separate account
or accounts in the name of such Portfolio, subject only to draft or
order by Provident acting pursuant to the terms of this Agreement.
If and when authorized by Proper Instructions in accordance with a
vote of the Board of Trustees of the Fund, Provident may open and
maintain an additional account or accounts in such other bank or
trust companies as may be designated by such instructions, such
account or accounts, however, to be solely in the name of Provident
in its capacity as Custodian and subject only to its draft or order
in accordance with the terms of this Agreement. Provident shall
furnish the Fund, not later than thirty (30) calendar days after
the last business day of each month, a statement reflecting the
current status of its internal reconciliation of the closing
balance as of that day in all accounts described in this paragraph
to the balance shown on the daily cash report for that day rendered
to the Fund.
B. Collections. Unless otherwise instructed by receipt of
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Proper Instructions, collect, receive and deposit in the bank
account or accounts maintained pursuant to paragraph 5A hereof all
income and other payments with respect to the securities held
hereunder, execute ownership and other certificates and affidavits
for all federal and state tax purposes in connection with the
collection of bond and note coupons, do all other things necessary
or proper in connection with the collection of such income, and
without waiving the generality of the foregoing:
1) present for payment on the date of payment all coupons and other
income items requiring presentation;
2) present for payment all securities which may mature or be
called, redeemed, retired or otherwise become payable on the date
such securities become payable;
3) endorse and deposit for collection, in the name of the
Portfolio, checks, drafts or other negotiable instruments on the
same day as received.
In any case in which Provident does not receive any such due
and unpaid income within a reasonable time after it has made proper
demands for the same (which shall be presumed to consist of at
least three demand letters and at least one telephonic demand), it
shall so notify the Fund in writing, including copies of all demand
letters, any written responses thereto, and memoranda of all oral
responses thereto and to telephonic demands, and await Proper
Instructions; Provident shall not be obliged to take legal action
for collection unless and until reasonably indemnified to its
satisfaction for the reasonable costs of such legal action for
collection. It shall also notify the Fund as soon as reasonably
practicable whenever income due on securities is not collected in
due course.
C. Sale of Shares of the Portfolio of the Fund. Make such
arrangements with the Transfer Agent of the Fund as will enable
Provident to make certain it receives the cash consideration due
each Portfolio for shares of beneficial interest without par value
("shares"), of such Portfolio as may be issued or sold from time to
time by the Fund, all in accordance with the Fund's Declaration of
Trust and By-Laws, as amended.
D. Dividends and Distributions. Upon receipt of Proper
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Instructions, release or otherwise apply cash insofar as cash is
available for the purpose of the payment of dividends or other
distributions to shareholders of each Portfolio.
E. Redemption of Shares of the Portfolios of the Fund. From such
funds as may be available for the purpose, but subject to the
limitation of the Fund's Declaration of Trust and By-Laws, as
amended, and applicable resolutions of the Board of Trustees of the
Fund pursuant thereto, make funds available for payment to
shareholders who have delivered to the Transfer Agent a request for
redemption of their shares by the Fund pursuant to such Declaration
of Trust. In connection with the redemption of shares of a
Portfolio pursuant to the Fund's Declaration of Trust and By-Laws,
as amended, Provident is authorized and directed upon receipt of
Proper Instructions from the Transfer Agent for the Fund to make
funds available for transfer through the Federal Reserve Wire
System or by other bank wire to a commercial bank account
designated by the redeeming shareholder.
F. Stock Dividends, Rights, Etc. Receive and collect all stock
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dividends, rights and other items of like nature; and deal with the
same pursuant to Proper Instructions relative thereto.
G. Disbursements. Upon receipt of Proper Instructions, make or
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cause to be made, insofar as cash is available for the purpose,
disbursements for the payment on behalf of a Portfolio of its
expenses, including without limitation, interest, taxes and fees or
reimbursement to Provident or to the Portfolio's investment adviser
for its payment of any such expenses.
H. Other Proper Corporate Purposes. Upon receipt of Proper
Instructions, make or cause to be made, insofar as cash is
available for the purpose, disbursements for any other purpose (in
addition to the purposes specified in paragraphs 4F, 4G, 5D, 5E and
5G of this Agreement) which the Fund declares is a proper corporate
purpose.
I. Records. Create, maintain and retain all records a) relating
to its activities and obligations under this Agreement in such
manner as shall meet the obligations of the Fund under the 1940
Act, particularly Section 31 thereof and Rules 3la-1 and 3la-2
thereunder or b) as reasonably requested from time to time by the
Fund. All records maintained by Provident in connection with the
performance of its duties under this Agreement shall remain the
property of the Fund and in the event of termination of this
Agreement shall be delivered in accordance with the terms of
paragraph 10 below.
J. Miscellaneous. Assist generally in the preparation of
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routine reports to holders of shares of the Fund, to the
Commission, including form N-SAR, to state "Blue Sky" authorities,
to others in the auditing of accounts and in other matters of like
nature.
K. Portfolio Accounting and Net Asset Value Computation.
Maintain the general ledger and all other books of account of each
Portfolio. In addition, upon receipt of Proper Instructions, which
may be deemed to be continuing instructions, Provident shall daily
compute the net asset value of the shares of each Portfolio and the
total net asset value of each Portfolio. Provident shall, in
addition, perform such other services incidental to its duties
hereunder as may be reasonably requested from time to time by the
Fund.
6. Provident and the Fund further agree as follows:
A. Proper Instructions. Provident shall be deemed to have
received Proper Instructions upon receipt of written instructions
signed by the Fund's Trustees or by one or more person or persons
as the Fund's Board of Trustees shall have from time to time
authorized to give the particular class of instructions for
different purposes. Different persons may be authorized to give
instructions for different purposes. A copy of a resolution or
action of the Trustees certified by the secretary or an assistant
secretary of the Fund may be received and accepted by Provident as
conclusive evidence of the instruction of the Fund's Board of
Trustees and/or the authority of any person or persons to act on
behalf of the Fund and may be considered as in full force and
effect until receipt of written notice to the contrary. Such
instruction may be general or specific in terms. Oral instructions
will be considered Proper Instructions if Provident reasonably
believes them to have been given by a person authorized by the
Board of Trustees to give such oral instructions with respect to
the class of instruction involved. The Fund shall cause all oral
instructions to be confirmed in writing. Proper Instructions may
include communications effected directly between electro-mechanical
or electronic devices provided that the Fund and Provident are
satisfied that such procedures afford adequate safeguards for the
assets of the Portfolios. Use by the Fund of such communication
systems shall constitute approval by the Fund of the safeguards
available therewith.
B. Investments, Limitations. In performing its duties
generally, and more particularly in connection with the purchase,
sale and exchange of securities made by or for the Portfolios,
Provident may take cognizance of the provisions of the Declaration
of Trust of the Fund, as amended; provided, however, that except as
otherwise expressly provided herein, Provident may assume unless
and until notified in writing to the contrary that instructions
purporting to be Proper Instructions received by it are not in
conflict with or in any way contrary to any provision of the
Declaration of Trust of the Fund, as amended, or resolutions or
proceedings of the Board of Trustees of the Fund.
7. Provident and the Fund further agree as follows:
A. Indemnification. Provident, as Custodian, shall be entitled
to receive and act upon advice of counsel (who may be counsel for
the Fund) and shall be without liability for any action reasonably
taken or thing reasonably done pursuant to such advice; provided
that such action is not in violation of applicable federal or state
laws or regulations or contrary to written instructions received
from the Fund, and shall be indemnified by the Fund and without
liability for any action taken or thing done by it in carrying out
the terms and provisions of this Agreement in good faith and
without negligence, misfeasance or misconduct. In order that the
indemnification provision contained in this paragraph shall apply,
however, if the Fund is asked to indemnify or save Provident
harmless, the Fund shall be fully and promptly advised of all
pertinent facts concerning the situation in question, and Provident
shall use all reasonable care to identify and notify the Fund fully
and promptly concerning any situation which presents or appears
likely to present the probability of such a claim for
indemnification against the Fund. The Fund shall have the option to
defend Provident against any claim which may be the subject of this
indemnification and in the event that the Fund so elects it will so
notify Provident, and thereupon the Fund shall take over complete
defense of the claim, and Provident shall initiate no further legal
or other expenses for which it shall seek indemnification under
this paragraph. Provident shall in no case confess any claim or
make any compromise in any case in which the Fund will be asked to
indemnify Provident except with the Fund's prior written consent.
B. Expenses Reimbursement. Provident shall be entitled to
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receive from each Portfolio on demand reimbursement for its cash
disbursements, expenses and charges, excluding salaries and usual
overhead expenses with respect to such Portfolio, as set forth in
Schedule A.
C. Appointment of Agents and Subcustodians. Provident, as
Custodian, may appoint (and may remove), only in compliance with
the terms and conditions of the Fund's Declaration of Trust and
ByLaws, as amended, any other bank, trust company or responsible
commercial agent as its agent or Subcustodian to carry out such of
the provisions of this Agreement as Provident may from time to time
direct; provided, however, that the appointment of any such agent
or Subcustodian shall not relieve Provident of any of its
responsibilities under this Agreement.
D. Reliance on Documents. So long as and to the extent that it
is in good faith and in the exercise of reasonable care, Provident,
as Custodian, shall not be responsible for the title, validity or
genuineness of any property or evidence of title thereto received
by it or delivered by it pursuant to this Agreement, shall be
protected in acting upon any instructions, notice, request,
consent, certificate or other instrument or paper reasonably
believed by it to be genuine and to constitute Proper Instructions
under this Agreement and shall, except as otherwise specifically
provided in this Agreement, be entitled to receive as conclusive
proof of any fact or matter required to be ascertained by it
hereunder a certificate signed by the Fund's Trustees, the
secretary or an assistant secretary of the Fund or any other person
expressly authorized by the Board of Trustees of the Fund.
E. Access to Records. Subject to security requirements of
Provident applicable to its own employees having access to similar
records within Provident and such regulations as to the conduct of
such monitors as may be reasonably imposed by Provident after prior
consultation with an authorized officer of the Fund, books and
records of Provident pertaining to its actions under this Agreement
shall be open to inspection and audit at reasonable times by the
Directors of, attorneys for, auditors employed by the Fund or any
other person as the Fund's Board of Trustees shall direct.
F. Recordkeeping. Provident shall maintain such records as
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shall enable the Fund to comply with the requirements of all
federal and state laws and regulations applicable to the Fund and
its Portfolios with respect to the matters covered by this
Agreement.
8. Lien on Assets. If a Portfolio requires Provident to advance cash
or securities for any purpose or in the event that Provident or its nominee
shall incur or be assessed any taxes, charges, expenses, assessments, claims or
liabilities in connection with the performance of this Agreement, except such
as may arise from its or its nominee's own negligent action, negligent failure
to act or willful misconduct, any property at any time held for the account of
a Portfolio shall be security therefor and should the Portfolio fail to repay
Provident promptly, Provident shall be entitled to utilize available cash and
to dispose of the Portfolio's assets to the extent necessary to obtain
reimbursement; provided, however, that the total value of any property of the
Portfolio which at any time is security for any payment by Provident hereunder
shall not exceed 15% of the Portfolio's total net asset value.
9. The Fund shall pay Provident for its services as Custodian such
compensation as shall be specified on the attached Schedule A.
10. Provident and the Fund further agree as follows:
A. Effective Period, Termination, Amendment and Interpretive and
Additional Provisions. This Agreement shall become effective as of
the date of its execution, shall continue in full force and effect
until terminated as hereinafter provided, may be amended at any
time by mutual agreement of the parties hereto and may be
terminated by either party by an instrument in writing delivered or
mailed, postage prepaid, to the other party, such termination to
take effect sixty (60) days after the date of such delivery or
mailing; and further provided, that the Fund may by action of the
Fund's Board of Trustees substitute another bank or trust company
for Provident by giving notice as provided above to Provident,
provided, however that Provident shall not act under paragraph 4B
hereof in the absence of receipt of an initial certificate of the
secretary or an assistant secretary that the Board of Trustees of
the Fund has approved the initial use of a particular Securities
System and the receipt of an annual certificate of the secretary or
an assistant secretary that the Board of Trustees has reviewed the
use by the Fund of such Securities System, as required in each case
by Rule 17f-4 under the 1940 Act. The Fund or Provident shall not
amend or terminate this Agreement in contravention of any
applicable federal or state laws or regulations, or any provision
of the Declaration of Trust of the Fund, as amended; provided,
however, that in the event of such termination Provident shall
remain as Custodian hereunder for a reasonable period thereafter if
the Fund after using its best efforts is unable to find a Successor
Custodian.
In connection with the operation of this Agreement, Provident
and the Fund may agree from time to time on such provisions
interpretive of or in addition to the provisions of this Agreement
as may in their joint opinion be consistent with the general tenor
of this Agreement, any such interpretive or additional provision to
be signed by both parties and annexed hereto, provided that no such
interpretive or additional provisions shall contravene any
applicable federal or state laws or regulations, or any provision
of the Fund's Declaration of Trust and By-Laws, as amended. No
interpretive provisions made as provided in the preceding sentence
shall be deemed to be an amendment of this Agreement.
B. Successor Custodian. Upon termination hereof or the inability
of Provident to continue to serve hereunder, the Fund shall pay to
Provident such compensation as may be due for services through the
date of such termination and shall likewise reimburse Provident for
its costs, expenses and disbursements incurred prior to such
termination in accordance with paragraph 7B hereof and such
reasonable costs, expenses and disbursements as may be incurred by
Provident in connection with such termination.
If a Successor Custodian is appointed by the Board of
Trustees of the Fund in accordance with the Fund's Declaration of
Trust, Provident shall, upon termination, deliver to such Successor
Custodian at the office of Provident, properly endorsed and in
proper form for transfer, all securities then held hereunder, all
cash and other assets of the Fund deposited with or held by it
hereunder.
If no such Successor Custodian is appointed, Provident shall,
in like manner at its office, upon receipt of a certified copy of a
resolution of the shareholders pursuant to the Fund's Declaration
of Trust and By-Laws, as amended, deliver such securities, cash and
other properties in accordance with such resolutions.
In the event that no written order designating a Successor
Custodian or certified copy of a resolution of the shareholders
shall have been delivered to Provident on or before the date when
such termination shall become effective, then Provident shall have
the right to deliver to a bank or trust company doing business in
Cincinnati, Ohio of its own selection, having an aggregate capital,
surplus and undivided profits, as shown by its last published
report, of not less than $5,000,000, all securities, cash and other
properties held by Provident and all instruments held by it
relative thereto and all other property held by it under this
Agreement. Thereafter, such bank or trust company shall be the
Successor of Provident under this Agreement and subject to the
restrictions, limitations and other requirements of the Fund's
Declaration of Trust and By-Laws.
In the event that securities, funds, and other properties
remain in the possession of Provident after the date of termination
hereof owing to failure of the Fund to procure the certified copy
above referred to, or of the Fund's Board of Trustees to appoint a
successor Custodian, Provident shall be entitled to fair
compensation for its services during such period and the provisions
of this Agreement relating to the duties and obligations of
Provident shall remain in full force and effect.
C. Duplicate Records and Backup Facilities. Provident shall not
be liable for loss of data occurring by reason of circumstances
beyond its control, including, but not limited to, acts of civil or
military authority, national emergencies, fire, flood or
catastrophe, acts of God, insurrection, war, riots or failure of
transportation, communication or power supply. However, Provident
shall keep in a separate and safe place additional copies of all
records required to be maintained pursuant to this Agreement or
additional tapes, disks or other sources of information necessary
to reproduce all such records. Furthermore, at all times during
this Agreement, Provident shall maintain a contractual arrangement
whereby Provident will have a back-up computer facility available
for its use in providing the services required hereunder in the
event circumstances beyond Provident's control result in Provident
not being able to process the necessary work at its principal
computer facility. Provident shall, from time to time, upon request
from the Fund provide written evidence and details of its
arrangement for obtaining the use of such a back-up computer
facility. Provident shall use its best efforts to minimize the
likelihood of all damage, loss of data, delays and errors resulting
from an uncontrollable event, and should such damage, loss of data,
delays or errors occur, Provident shall use its best efforts to
mitigate the effects of such occurrence. Representatives of the
Fund shall be entitled to inspect Provident's premises and
operating capabilities within reasonable business hours upon
reasonable notice to Provident, and, upon request of such
representative or representatives, Provident shall from time to
time, as appropriate, furnish to the Fund a letter setting forth
the insurance coverage thereon, any changes in such coverage which
may occur and any claim relating to the Fund which Provident may
have made under such insurance.
D. Confidentiality. Provident agrees to treat all records and
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other information relative to the Fund and the Portfolio
confidentially and Provident, on behalf of itself and its officers,
employees and agents, agrees to keep confidential all such
information, except after prior notification to and approval by the
Fund (which approval shall not be unreasonably withheld and may not
be withheld where Provident may be exposed to civil or criminal
contempt proceedings), when requested to divulge such information
by duly constituted authorities or when so requested by a properly
authorized person.
Provident and the Fund agree that they, their officers,
employees and agents shall maintain all information disclosed to
them by the other in connection with this Agreement in confidence
and will not disclose any such information to any other person, nor
use such information for their own benefit or for the benefit of
third parties without the consent in writing of the other;
provided, however, that each party shall have the right to use any
such information for its own necessary internal purposes while this
Agreement is in effect. The provisions of the paragraph shall not
apply to information which (i) is in or becomes part of the public
domain, or (ii) is demonstrably known previously to the party to
whom it is disclosed, or (iii) is independently developed outside
this Agreement by the party to whom it is disclosed or (iv) is
rightfully obtained from third parties by the party to whom it is
disclosed.
11. The Fund shall not circulate any printed matter which contains any
reference to Provident without the prior written approval of Provident,
excepting solely such printed matter as merely identifies Provident as
Custodian. The Fund will submit printed matter requiring approval to Provident
in draft form, allowing sufficient time for review by Provident and its counsel
prior to any deadline for printing.
12. In the event of a reorganization of the Portfolio through a merger,
consolidation, sale of assets or other reorganization, Provident, at the
request of the Fund, shall act as Custodian for shares of any investment
company or other company obtained in any such reorganization by the Portfolio
for distribution to those Portfolio shareholders whose shares are represented
by certificates. The Fund shall give notice to each such shareholder of his or
her right to exchange his or her Portfolio shares represented by certificates
for shares held by Provident upon surrender to Provident of his or her
certificates representing such Portfolio shares properly endorsed and in proper
form for transfer. Upon the surrender of such Portfolio certificates Provident
will issue a certificate or certificates to the surrendering shareholder for an
approximate number of shares held by Provident, unless such shareholder
establishes an Open Account Plan or other similar account at that time in which
case such shares will be credited to his or her account. Provident shall not be
required to issue certificates for any fractional shares held by it. Instead,
fractional interests in such shares shall be distributed to the shareholder in
cash at their then current market value or, if the fractional share represents
an interest in an investment company, it shall be redeemed by Provident at the
then current redemption price for such shares and the proceeds of such
redemption shall be distributed to such shareholder in cash.
13. In the event that the Fund establishes one or more series of shares
which it desires to have the Custodian render services as custodian under the
terms hereof or otherwise desires to have the Custodian render services as
custodian hereunder with respect to any other series, it shall so notify the
custodian in writing, and if the Custodian agrees in writing to provide such
services, such series of shares shall become a Portfolio hereunder.
14. This Agreement is executed and delivered in the State of Ohio and
shall be subject to and be construed in accordance with the laws of Ohio.
15. Notices and other writings delivered or mailed postage prepaid to
The Riverfront Funds, 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000, or to The
Provident Bank at Xxx Xxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000, or to such
other address as the Fund or Provident may hereafter specify, shall be deemed
to have been properly delivered or given hereunder to the respective address.
16. This Agreement shall be binding upon and shall inure to the benefit
of the Fund and its Portfolio and Provident and their respective successors or
assigns.
17. This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original.
18. The Fund is a business trust organized under the laws of the State of
Ohio and under a Declaration of Trust, to which reference is hereby made and a
copy of which is on file at the office of the Secretary of State of Ohio as
required by law, and to any and all amendments thereto so filed or hereafter
filed. The obligations of the Fund entered into in the name of the Fund or on
behalf thereof by any of the Trustees, officers, employees or agents are made
not individually, but in such capacities, and are not binding upon any of the
Trustees, officers, employees, agents or shareholders of the Fund or the
Portfolios personally, but bind only the assets of the Fund, and all persons
dealing with any of the Portfolios of the Fund must look solely to the assets
of the Fund belonging to such Portfolio for the enforcement of any claims
against the Fund.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be executed in its name and on its behalf by a duly authorized officer as of
the day and year first above written.
THE RIVERFRONT FUNDS
By /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Title: Secretary
THE PROVIDENT BANK
By /s/ X. X. Xxxxx
--------------------------------
Name: X. X. Xxxxx
Title: Senior Managing Director
Schedule A
Dated: As of December 29, 1998
THE PROVIDENT BANK
Custodian Fee Schedule
THE RIVERFRONT FUNDS
I. Administration
Custodian, Portfolio and Fund Accounting Service - Maintain custody of
Portfolio assets. Settle portfolio purchases and sales. Report buy and sell
fails. Determine and collect portfolio income. Make cash disbursements and
report cash transactions. Maintain investment ledgers, provide selected
portfolio transactions, position and income reports. Maintain general ledger
and capital stock accounts. Prepare daily trial balance. Calculate net asset
value daily. Provide from Fund approved pricing sources or vendors daily
pricing for Portfolio securities. Provide selected general ledger reports.
Securities yield or market value quotations for short term Portfolio securities
will be provided to Provident from a source designated by the Fund.
The administration fee shown below is an annual charge, billed and payable
monthly, based on average net assets and calculated in the same manner as the
Fund's management fee.
ANNUAL FEES PER PORTFOLIO
Portfolio Annual Fee
The Riverfront U.S. Government Five one-hundredths of one percent (.05%)
Securities Money Market Fund of such Portfolio's average net assets
The Riverfront Income Fifteen one-hundredths of one percent (.15%)
Equity Fund of such Portfolio's average net assets
The Riverfront U.S. Ten one-hundredths of one percent (.10%)
Government Income Fund of such Portfolio's average net assets
The Riverfront Balanced Fifteen one-hundredths of one percent (.15%)
Fund of such Portfolio's average net assets
The Riverfront Small Fifteen one-hundredths of one percent (.15%)
Company Select Fund of such Portfolio's average net assets
The Riverfront Large Fifteen one-hundredths of one percent (.15%)
Company Select Fund of such Portfolio's average net assets
II. Out of Pocket Expenses
A billing for the recovery of applicable out-of-pocket expenses as incurred by
the Portfolio will be made as of the end of each month.
THE RIVERFRONT FUNDS
By /s/ Xxxxxx Xxxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Secretary
THE PROVIDENT BANK
By /s/ X. X. Xxxxx
--------------------------------
Name: X. X. Xxxxx
Title: Senior Managing Director
