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Exhibit 99.B8
CUSTODIAN AGREEMENT
AGREEMENT made as of December 18, 1992, between XXXXXXX INVESTMENT
MUTUAL FUNDS TRUST, an Ohio business trust (the "Trust"), and THE PROVIDENT
BANK, an Ohio banking corporation ("Provident");
WHEREAS, the Trust is engaged in the business of investment in certain
types of securities, as more fully described in its Registration Statement on
Form N-1A under the Securities Act of 1933, as amended, including its then
current prospectus and statement of additional information (the "Registration
Statement");
WHEREAS, the Trustees of the Trust have selected Provident to act as
the custodian of the Securities (as subsequently defined) and funds of the Trust
and to perform certain ministerial duties as agent, as more fully set forth
herein;
WHEREAS, Provident is ready and willing to act as custodian and agent
in accordance with the provisions hereof;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the parties hereto agree as follows:
Article 1. Definitions.
1.1 "Book-Entry" or "Book Entry System" shall mean the Federal
Reserve/Treasury book-entry system for United States and federal agency
securities as provided in Subpart O of Treasury Circular Xx. 000, 00 XXX 000,
Xxxxxxx X of 31 CFR Part 350, and the book-entry regulations of federal agencies
substantially in the form of Subpart O, and its successor or successors.
1.2 "Broker Account" shall mean a segregated account, in the name of a
broker, dealer or futures commission merchant or in the name of the Trust for
the benefit of a broker, dealer or futures commission merchant, as the case may
be, separate and distinct from the Trust's custody account, in which certain
securities and/or cash of the Trust shall be deposited and held by Provident for
the benefit of a broker, dealer or futures commission merchant in connection
with the purchase or sale of Financial Futures Contract.
1.3 "Financial Futures Contract" shall mean a contractual commitment to
buy or sell Securities during a specified month at an agreed-upon price, issued
by or pursuant to the regulations of a commodities exchange regulated under the
Commodities Futures Trading Act.
1.4 "Option" shall mean any exchange traded put or call option on
Securities (as defined below).
1.5 (a) "Proper Instruction" shall mean a writing signed or initialled
by one or more persons as the Trustees shall have from time to time authorized,
and, to the extent and for the purposes authorized by the Trustees of the Trust.
Each such writing shall set forth the specific transaction or type of
transaction involved in a manner customarily used in the industry. Oral
instructions confirmed in writing within twenty-four (24) hours by persons
authorized to do so will be considered Proper Instructions if Provident
reasonably believes them to have been given by persons authorized to give such
instructions with respect to the transaction involved.
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Upon receipt of a certificate of the Secretary of the Trust as to the
authorization by the Trustees of the Trust accompanied by a detailed description
of procedures approved by the Trustees, Proper Instructions may include
communications effected directly between electro-mechanical or electronic
devices provided that such procedures afford adequate safeguards for the Trust's
assets. In performing its duties generally, and more particularly in connection
with the purchase, sale and exchange of securities made by or for the Trust,
Provident may take cognizance of the provisions of the Trust's Declaration of
Trust, By-Laws and Registration Statement; however, except as otherwise
expressly provided herein, it 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 provisions of the
Trust's Declaration of Trust, ByLaws, or Registration Statements.
1.6 "Securities" shall mean stocks, bonds, debentures, notes, evidence
of indebtedness, evidences of interest; warrants, Options and Financial Futures
Contracts and other securities, irrespective of their form, the name by which
they may be described, or the character or form of the entities by which they
are issued or created.
1.7 "Securities Depository" shall mean a clearing agency that is
registered under Section 17A of the Securities Exchange Act of 1934 and that
acts as a securities depository as that term is defined by Rule 17f-4 (a) under
the Investment Company act of 1940.
1.8 "Shares" shall mean the shares of beneficial interests of the Trust
issued by the Trust.
Article 2. Appointment and Property to be Held in Custody
2.1 The Trust hereby appoints Provident as its custodian and agent
subject to the provisions of this Agreement. The Trust agrees to deliver to
Provident all Securities and cash owned by it, and all payments of income,
payments of principal and capital distributions received by it with respect to
all Securities owned by the Trust from time to time, and the cash consideration
received by it for such Shares of the Trust as may be issued or sold from time
to time.
2.2 The Trust will deposit with Provident properly certified or
authenticated copies of its Declaration of Trust and By-Laws, and all amendments
thereto, its current prospectus and statement of additional information, as from
time to time amended, and such resolutions, votes, or other proceedings of the
Trust as may be necessary for or convenient to Provident in the performance of
its duties.
Article 3. Duties of Provident with Respect to Property of the Trust Held in
Custody.
3.1 Safekeepinq. Provident shall hold and physically segregate for the
account of the Trust all non-cash property and Securities other than Securities
that are maintained pursuant to Section 3.13, and shall maintain records of all
receipts, deliveries and locations of such Securities, together with a current
inventory thereof, and shall conduct periodic physical inspections (including
sampling counts and four quarterly complete physical accounts per year to be
conducted and certified to the Trust by a Bank officer of Provident) of
certificates representing bonds and other Securities held by it under this
Agreement in such manner as Provident shall determine from time to time to be
advisable in order to verify the accuracy of such inventory. With respect to
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Securities held by any agent appointed pursuant to Section 3.11, and with
respect to Securities or cash held by any Sub-Custodian employed pursuant to
Section 3.12, Provident may rely upon certificates from such agent as to the
holdings of such Sub-Custodian, it being understood that Provident must perform
account reconciliations with such agents and Sub-Custodians no less frequently
than quarterly, and that reliance upon such certificates in no way relieves
Provident of its responsibilities under this Agreement.
Provident will promptly report to the Trust the results of such
inspections and certifications, indicating any shortages or discrepancies
uncovered thereby, and take appropriate action to remedy such shortages or
discrepancies.
3.2 Delivery of Securities. Provident shall release and deliver
Securities owned by the Trust that are either held by Provident or are in a
Securities System account (as defined in Section 3.13) of Provident, and only
upon receipt of Proper Instructions (which may be continuing instruction when
deemed appropriate by the parties) and only in the following cases:
(a) upon sale of such Securities for the account of the Trust and receipt of
payment thereof;
(b) upon the receipt of payment in connection with any repurchase agreement
related to such Securities entered into by the Trust, and prior to any receipt
of confirmation of the repurchase agreement if Provident in its sole discretion
deems it appropriate;
(c) in the case of a sale effected through a Securities System, in accordance
with the provisions of Section 3.13 hereof;
(d) to the depository agent in connection with tender or other similar offers
for portfolio Securities of the Trust;
(e) 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;
(f) to the issuer thereof, or its agent, for transfer into the name of the Trust
or into the name of any nominee or nominees of Provident or into the name or
nominee name of any agent appointed pursuant to Section 3.11 or into the name or
nominee name of any sub-custodian appointed pursuant to Section 3.12; or for
exchange for a different number of bonds, 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 Provident;
(g) for exchange or conversion pursuant to any plan of merger, consolidation,
recapitalization, reorganization or readjustment of the Securities, or pursuant
to provisions for conversion contained in such Securities, or pursuant to any
deposit agreement, provided that, in any such case, the new Securities and cash,
if any, are to be delivered to Provident;
(h) in the case of warrants, rights or similar Securities, the surrender thereof
in the exercise of such warrants, rights, or similar Securities or the surrender
of interim receipts or temporary Securities for definitive Securities; provided
that, in any such case, the new Securities and cash, if any, are to be delivered
to Provident;
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for delivery in connection with any loans of Securities made by the Trust, but
only against receipt of adequate collateral as determined by the Trust, which
may be in the form of cash or obligations issued by the United States
government, its agencies or instrumentalities;
(j) for delivery as security in connection with any borrowings by the Trust
requiring a pledge of assets by the Trust, but only against receipt of amounts
borrowed;
(k) upon receipt of instructions from the Transfer Agent, for delivery to such
Transfer Agent or to the holders of Shares in connection with distributions in
kind, as may be described from time to time in the Trust's currently effective
prospectus, in satisfaction of requests by holders of Shares for repurchase or
redemption;
(l) in the case of Options for the purchase or sale of Securities, upon the
exercise of any put Option by the Trust or sale of an Option by the Trust and
receipt of payment thereof;
(m) for any other proper purpose, upon receipt of Proper Instructions specifying
the Securities to be delivered and naming the person or persons to whom delivery
of such Securities shall be made. Provident shall have no responsibility to
determine whether said activities are a proper purpose of the Trust.
3.3 Liability for Delivery of Securities in Violation of Section 3.2.
Notwithstanding anything to the contrary in this Agreement, in any and every
case where Securities owned by the Trust are released and delivered by Provident
in violation of Section 3.2, Provident shall be liable to the Trust in the event
any loss results to the Trust from the failure of Provident to comply with the
provisions of Section 3.2.
3.4 Registration of Securities. Securities held by Provident pursuant
to this Agreement (other than bearer Securities) shall be registered (a) in the
name of the Trust, (b) in the name of any nominee of the Trust or of any nominee
of Provident (which nominee shall be assigned exclusively to the Trust), (c) in
the name or nominee name of any agent appointed pursuant to Section 3.11, or (d)
in the name or nominee name of any sub-custodian appointed pursuant to Section
3.12. All Securities accepted by Provident on behalf of the Trust under the
terms of this Agreement shall be in "street name" or other good delivery form.
3.5 Bank Accounts. Provident shall retain all cash of the Trust, other
than cash maintained by the Trust in a checking account established and used in
accordance with Rule 17f-3 under the Investment Company Act of 1940, in the
banking department of Provident in a separate account or accounts in the name of
the Trust, 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 majority of the Board of Trustees of the Trust,
Provident may open and maintain an additional account or accounts in such other
bank or trust companies (which are qualified to act as a custodian under the
Investment Company Act of 1940) as may be designated by such instructions, such
account or accounts, however, to be in the name of Provident in its capacity as
Custodian and subject only to its draft or order in accordance with the terms
of
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this Agreement. If requested by the Trust, Provident shall furnish the Trust
with monthly statements of the Trust's accounts.
3.6 Payments for Shares. Provident shall receive as transfer agent for
the Trust, and it shall receive from the distributor for the Trust shares, or
from the Trust, and deposit into the Trust's accounts such payments as are
received for shares of the Trust issued or sold from time to time by the Trust.
3.7 Collections. Unless otherwise instructed by receipt of Proper
Instructions, and to the extent that Provident should reasonably be cognizant of
same in the exercise of due care, Provident shall collect, receive and deposit
in a bank account or accounts maintained pursuant to Section 3.5 all income and
other payments with respect to the Securities held hereunder, and to execute
ownership and other certificates and affidavits for all Federal and State tax
purposes in connection with the collection of bond and note coupons, and to do
all other things necessary or proper in connection with the collection of such
income, and without waiving the generality of the foregoing, to:
(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 Trust, 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 demands for the same as is customary
in the industry (which demands shall commence within a reasonable period of
time), it shall notify the Trust in writing, including copies of all demand
letters, if any, 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. All income and other payments
with respect to the Securities held hereunder shall be credited to the Trust's
appropriate investment account no later than one day after such income or other
payment is due from the obligor of such Security, whether or not such payments
have been collected by Provident, except where Provident promptly notifies the
Trust at the time when Provident obtains knowledge or reasonably should have
known prior to such time of the occurrence, of a failure or default on the
payment of the obligor. Provident shall notify the Trust as soon as reasonably
practicable whenever income due on Securities is not received by Provident in
due course.
3.8 Payment of Trust Moneys. Upon receipt of Proper Instructions, which
may be continuing instructions when deemed appropriate by the parties, Provident
shall pay out moneys of the Trust in the following cases only:
(a) upon the purchase of Securities for the account of the Trust but only: (i)
against the delivery of such Securities to Provident (or any bank, banking firm
or trust company doing business in the United States or abroad which is
qualified under the Investment Company Act of 1940, as amended, to act as a
custodian and has been designated by Provident as its agent for this purpose)
registered in the name of the Trust or in the name of a nominee of Provident
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referred to in Section 3.4 hereof or in proper form for transfer; (ii) in the
case of a purchase effected through a Securities System, in accordance with the
conditions set forth in Section 3.13 hereof; or (iii) in the case of repurchase
agreements entered into between the Trust and either Provident or another party,
(1) against delivery of the Securities either in certificate form or through an
entry crediting Provident's custodial account at the Federal Reserve Bank with
such Securities; (2) against delivery of a safekeeping receipt from a Securities
depository evidencing purchase by the Trust of securities owned by Provident or
another party, and prior to any receipt of confirmation of the repurchase
agreement if Provident in its sole discretion deems it appropriate or (3)
pursuant to such other procedures enumerated in written repurchase agreements
entered into by the Trust.
(b) in connection with conversion, exchange or surrender of Securities owned by
the fund as set forth in Section 3.2 hereof;
(c) for the payment of any expense or liability incurred by the Trust, including
but not limited to the following payments for the account of the Trust:
interest, taxes, management, accounting, transfer agent and legal fees, and
operating expenses of the Trust whether or not such expenses are to be in whole
or part capitalized or treated as deferred expenses;
(d) for the payment of any dividends declared pursuant to the Trust's
Declaration of Trust, By-Laws and Registration Statement.
(e) in the case of Options, (1) the premium for the purchase of an Option shall
be payable upon receipt of Proper Instructions and the oral affirmation of the
purchase of such Options, given by the clearing member (in the case of Options
Clearing Corporation traded options) or by the broker and may be made in advance
of receipt of a clearing member's confirmation or broker's confirmation
confirming purchase of an Option by the Trust, and (2) the payment to a clearing
member or broker upon the exercise of a call Option by the Trust shall be made
upon receipt of the Securities underlying the call Option exercised by the
Trust;
(f) in the case of Financial Futures Contracts, (1) payments for Financial
Futures Contracts, including payments of initial margin, shall be payable into a
Broker Account upon receipt of Proper Instructions and the oral affirmation of
the purchase or sale of the Financial Futures Contract given by the broker and
may be made in advance of any receipt of a broker's confirmation confirming the
purchase or sale of the Financial Futures contract, (2) payment of variation
margin shall be payable upon receipt of proper instructions, and (3) payments in
settlement of Financial Futures Contracts shall be payable into a Broker Account
upon receipt of Proper Instructions and the oral affirmation of the settlement
of the Financial Futures Contract and may be made in advance of receipt of a
broker's confirmation confirming settlement of the Financial Futures Contract.
(g) upon receipt of Proper Instructions, for any other purpose which the Trust
declares is a proper Trust purpose. Provident shall have no responsibility to
determine whether said activities are a proper purpose of the Trust.
3.9 Liability for Payment in Advance of Receipt of Securities
Purchased. Notwithstanding anything to the contrary in this agreement, in any
and every case where payment for purchase of Securities for the account of the
Trust is made by Provident in violation of Section 3.8 and in the absence of
specific written instructions from the Trust, Provident shall be liable to the
Trust in
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the event any loss results to the Trust from the failure of Provident to comply
with the provisions of Section 3.7. In every and any case of a purchase of
Securities for the account of the Trust where payment is made by Provident in
advance of receipt of the Securities purchased, Provident shall be absolutely
liable to the Trust for such Securities to the same extent as if the Securities
had been received by Provident.
3.10 Failed Transactions. If, on the day a purchase transaction is to
be effected, Provident is unable to obtain custody and control of any security
intended to be purchased by the Trust, Provident shall advise the Trust of such
failure and shall assist the Trust in obtaining credits in favor of the Trust
based upon any Trust credit balances resulting from such incompleted
transactions. Provident shall also assist the Trust in collecting any payments
of interest, dividends or penalties arising from the failed transaction.
3.11 Appointment of Agents. Provident, may at any time or times appoint
(and may at any time remove) any other bank, trust company or reasonable
commercial agent, qualified to act as Custodian under the Investment Company Act
of 1940, as its agent to carry out such of the provisions of this Agreement as
Provident may from time to time direct, provided, however, that the appointment
of such Agent shall have been approved by the Trustees of the Trust, and that
such appointment shall not relieve Provident of any of its responsibilities
under this Agreement. Each agency relationship shall be established by a written
instrument, copies of which are to be provided promptly to the Trust, which
shall contain, inter alia, the obligation of the agent to segregate and hold
assets of the Trust only in the name of and for the benefit of the Trust.
3.12 Appointment of Sub-Custodians. Provident may from time to time
employ one or more banks and/or trust companies qualified under the Investment
Company Act of 1940 to act as custodian, as Sub-Custodians, provided, however,
that the appointment of such Agent shall have been approved by the Trustees of
the Trust, and that such appointment shall not relieve Provident of any of its
responsibilities under this Agreement. Each Sub-Custodian relationship shall be
established by written instrument, copies of which are to be provided promptly
to the Trust, which shall contain, inter alia, the obligation of the
SubCustodian to segregate and hold assets of the Trust only in the name of and
for the benefit of the Trust.
3.13 Deposit of Trust Assets in Securities System. Provident may
deposit and/or maintain Securities owned by the Trust in (a) a Securities
Depository, and (b) the Book-Entry System authorized by the U.S. Department of
Treasury and certain federal agencies (collectively referred to in this
Agreement as "Securities System"), all in accordance with applicable Federal
Reserve Board and Securities and Exchange Commission rules and regulations, if
any, and subject to the following provisions:
(a) Provident may keep Securities of the Trust in a Securities System provided
that such Securities are represented in an account (for purposes of this
paragraph "Account") of Provident in the Securities System that shall not
include any assets of Provident other than assets held as a fiduciary or
custodian.
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(b) The records of Provident with respect to Securities of the Trust that are
maintained in a Securities System shall identify those Securities belonging to
the Trust.
(c) Provident shall pay for Securities purchased for the account of the Trust
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 Trust.
Provident shall transfer Securities sold for the account of the Trust upon (1)
receipt of advice from the Securities System that payment for such Securities
has been transferred to the Account, and (2) the making of an entry on the
records of Provident to reflect such transfer and payment for the account of the
Trust. Copies of all advices from the Securities System of transfers of
Securities for the account of the Trust shall identify the Trust, be maintained
for the Trust by Provident, and be provided to the Trust at its request.
Provident shall furnish to the Trust copies of daily transaction sheets
reflecting each day's transactions in the Securities System for the account of
the Trust on the next business day.
(d) Provident shall provide the Trust 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.
(e) Provident shall not act under this paragraph 3.13 in the absence of receipt
of an initial certificate of the Secretary that the Trustees of the Trust have
approved the initial use of a particular Securities System and the receipt of an
annual certificate of the Secretary that the Trustees of the Trust have reviewed
the use by the Trust of such Securities System, as required in each case by Rule
17f-4 under the Investment Company Act of 1940, as amended.
(f) Anything to the contrary in this Agreement notwithstanding, Provident shall
be liable to the Trust for any loss or damage to the Trust resulting from (i)
any negligence, misfeasance or misconduct of Provident or any of its agents or
of any of its employees in using the Securities System or from (ii) failure of
Provident or any of its agents or employees to enforce effectively such rights
as it may have against the Securities System. At the election of the Trust, it
shall be entitled to be subrogated to the rights of Provident with respect to
any claim against the Securities System or any other person that Provident may
have a claim against as a consequence of any such loss or damage if and to the
extent that the Trust has not been made whole for any such loss or damage.
3.14 Ownership Certificates for Tax Purposes. Provident shall execute
ownership and other certificates and affidavits for all federal and state tax
purposes in connection with receipt of income or other payments with respect to
Securities of the Trust held by it and in connection with transfers of
Securities.
3.15 Proxies. Provident shall, with respect to the Securities held
hereunder, cause to be promptly executed by the registered holder of such
Securities, if the Securities are registered otherwise than in the name of the
Trust or a nominee of the fund, all proxies, 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.
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3.16 Communication Relating to Trust Portfolio Securities. Provident
shall transmit promptly to the Trust all written information (including, without
limitation, pendency of calls and maturities of Securities and expirations of
rights in connection therewith) received by Provident from issuers of the
Securities being held for the Trust. With respect to tender or exchange offers,
Provident shall transmit promptly to the Trust all written information received
by Provident from issuers of the Securities whose tender or exchange is sought
and from the party (or his agents) making the tender or exchange offer. If the
Trust desires to take action with respect to any tender offer, exchange offer or
any other similar transaction, the Trust shall provide Provident with Proper
Instructions on the action the Trust desires Provident to take provided,
however, Provident shall not be liable to the Trust for the failure to take any
such action unless such Proper Instructions are received by Provident at least
one (1) business day prior to the date on which Provident is to take such
action.
3.17 Actions Permitted Without Express Authority. Provident may in its
reasonable discretion, without express authority from the Trust:
(a) surrender Securities in temporary form for Securities in definitive form;
(b) endorse for collection, in the name of the Trust, checks, drafts and other
negotiable instruments; and
in general, attend to all non-discretionary details in connection with the sale,
exchange, substitution, purchase, transfer and other dealings with the
Securities and property of the Trust except as otherwise directed by the
officers of the Trust.
3.18 Evidence of Authority. Provident 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 have been properly executed
by or on behalf of the Trust. Provident may receive and accept a certified copy
of a vote of the Trustees of the Trust as conclusive evidence of (a) the
authority of any person to act in accordance with such vote, or (b) any
determination or action by the Trustees pursuant to the Declaration of Trust and
By-Laws as the case may be, as described in such vote, and such vote may be
considered as in full force and effect until receipt by Provident of notice to
the contrary.
Article 4. Duties of Provident with Respect to the Books of Account and
Calculation of Net Asset Value and Net Income.
4.1 Provident shall cooperate with and supply necessary information to
the entity or entities appointed by the Trustees of the Trust to keep the books
of account of the Trust and/or compute the net asset value per share of the
outstanding shares of each series of the Trust. If directed in writing to do so
by the Trust, Provident shall itself keep such books of account and/or compute
such net asset value per share. If so directed, Provident shall also compute
such net asset value per share. If so directed, Provident shall also calculate
daily the net income of each series of the Trust as described in the currently
effective prospectus of such series and shall advise the Trust and the Transfer
Agent daily of the total amounts of such net income and, if instructed in
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writing by an officer of the Trust to do so, shall advise the Transfer Agent
periodically of the division of such net income among its various components.
The calculations of the net asset value per share and the daily income of each
series of the Trust shall be made at the time or times described from time to
time in the currently effective prospectus of such series.
Article 5. Custodian Records.
5.1 Provident shall create, maintain and retain all records relating to
its activities and obligations under this Agreement in such manner as will meet
with obligations of the Trust under the Investment Company Act of 1940, with
particular attention to Section 31 thereof and Rules 31a-1 and 31a-2 thereunder,
applicable federal and state tax laws and any other law or administrative rules
or procedures which may be applicable to the Trust. All records maintained by
Provident in connection with the performance of its duties under this Agreement
shall be the property of the Trust, shall at all times during the regular
business hours of Provident be open for inspection by duly authorized officers,
employees, attorneys for, auditors employed by, and other agents of the Trust
and, in the event of termination of this Agreement, will be delivered by
Provident to the Trust or to the successor Custodian designated by the Trust.
Provident shall, on a monthly basis, and otherwise when requested by the Trust,
at Provident's cost, supply the Trust with a tabulation of Securities owned by
the Trust and held by Provident.
Article 6. Opinion of Trust's Independent Accountant.
6.1 Provident shall take all reasonable action, as the Trust may from
time to time request, so that the Trust may obtain from year to year favorable
opinions from the Trust's independent accountants with respect to its activities
hereunder in connection with the preparation of reports to the Securities and
Exchange Commission and with respect to any other requirements of such
Commission.
Article 7. Reports to Trust by Independent Public Accountants.
7.1 Provident shall provide the Trust, at such times as the Trust may
reasonably require, with reports of independent public accountants on the
accounting system, internal accounting control and procedures for safeguarding
Securities, including Securities deposited and/or maintained in a Securities
System, relating to the services provided by Provident under this Agreement;
such reports, shall be of sufficient scope and in sufficient detail, as may
reasonably be required by the Trust, to provide reasonable assurance that any
material inadequacies would be disclosed by such examination, and, if there are
no such inadequacies, shall so state.
Article 8. Compensation of Provident.
8.1 Provident shall be entitled to such reasonable compensation for its
services and expenses as custodian, as agreed upon in writing from time to time
between the Trust and Provident and set forth in Schedule A Addendum attached to
this Agreement. In the event Provident shall be instructed to keep the books of
account of the Trust and/or compute the net asset value per share of the
outstanding shares of the Trust pursuant to Article 4 herein, at the time of
such instruction Provident and the Trust shall agree in writing upon reasonable
compensation for those additional services.
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Article 9. Liability and Indemnification of Provident.
9.1 Provident shall be entitled to receive and act upon advice of
counsel (who may be counsel for the Trust) and shall be without liability for
any action reasonably taken pursuant to such advice, provided that such action
is not in violation of applicable Federal or state laws or regulations.
Provident shall be kept indemnified by the Trust and be without liability for
any action taken or thing done by it or its employees, Sub-Custodians and
agents, in carrying out the terms and provisions of this Agreement in good faith
and without negligence, provided that it shall be liable to the Trust for any
error, omission or other act by it or any of its employees, Sub-Custodian and
agents, including acts of negligence, clerical errors and mechanical failures.
In order that the indemnification provision contained in this Section 9.1 shall
apply, however, it is understood that if in any case the Trust may be asked to
indemnify or save Provident harmless, the Trust shall be fully and promptly
advised of all pertinent facts concerning the situation in question, and it is
further understood that Provident will use all reasonable care to identify and
notify the Trust promptly concerning any situation which presents or appears
likely to present the probability of such a claim for indemnification against
the Trust. The Trust shall have the option to defend Provident against any claim
which may be the subject of this indemnification, and in the event that the
Trust so elects it will so notify Provident, and thereupon the Trust shall take
over complete defense of the claim, and Provident shall in such situation
initiate no further legal or other expenses for which it shall seek
indemnification under this Section 9.1 Provident shall in no case confess any
claim or make any compromise in any case in which the Trust will be asked to
indemnify Provident except with the Trust's written consent.
Article 10. Effective Period: Termination.
10.1 This Agreement shall become effective as of its execution, shall
continue in full force and effect until termination by either party by an
instrument in writing delivered or mailed, postage prepaid to the other party,
such termination to take effect hot sooner than sixty (60) days after the date
of such delivery or mailing; provided, that the Trustees may immediately
terminate this Agreement in the event of the appointment of a conservator or
receiver for Provident by the Ohio Superintendent of Banks or upon the happening
of a like event at the direction of an appropriate regulatory agency or court of
competent jurisdiction.
10.2 Upon termination of this Agreement, the Trust shall pay to
Provident such compensation as may be due as of the date of such termination and
shall likewise reimburse Provident for its reasonable costs, expenses and
disbursements in connection with the termination of this Agreement.
Article 11. Successor Custodian.
11.1 If a successor custodian shall be appointed by the Trustees of the
Trust, Provident shall, upon termination of this Agreement, deliver to such
successor custodian at the office of Provident, duly endorsed and in the form
for transfer, all Securities then held by it hereunder, shall transfer to an
account of the successor custodian all the Trust's Securities held in a
Securities System and shall deliver to such successor custodian all funds and
other property held by it, including all books, records, entries, accounts and
statements held by Provident or its agents, and generally shall fully cooperate
with the successor custodian in the transition.
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11.2 In the event that no written order designating a successor
custodian 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, which is a "bank" as defined in the
Investment Company Act of 1940, 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, funds and other properties held by
Provident and all instruments held by Provident relative thereto and all other
property held by it under this Agreement and to transfer to an account of such
successor custodian all of the Trust's Securities held in any Securities System.
Thereafter, such bank or trust company shall be the successor of Provident under
this Agreement.
11.3 In the event that Securities, funds and other properties remain in
the possession of Provident after the date of termination hereof due to the
failure of the Trust to appoint a successor custodian, and Provident retains
possession of such Securities, funds and other properties of the Trust, the
provisions of this Agreement shall remain in full force and effect.
Article 12. Interpretive and Additional Provisions.
12.1 In connection with the operation of this Agreement, Provident and
the Trust may from time to time agree 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 shall be in a writing signed by both parties and shall be
annexed hereto, provided that no such interpretive or additional provisions
shall contravene any applicable federal or state regulations or any provision of
the Declaration of Trust and By-Laws of the Trust. No interpretive or additional
provisions made as provided in the preceding sentence shall be deemed to be an
amendment of this Agreement.
Article 13. Ohio Law to Apply.
13.1 This Agreement shall be construed in accordance with the laws of
Ohio.
Article 14. Limitation of Liability of the Trustees and Shareholders.
14.1 It is expressly agreed to that the obligations of the Trust
hereunder shall not be binding upon any of the Trustees, shareholders, nominees,
officers, agents, or employees of the Trust, personally, but bind only the trust
property of the Trust, as provided in the Declaration of Trust of the Trust. The
execution and delivery of this Agreement have been authorized by the Trustees of
the Trust and signed by an authorized officer of the Trust, acting as such, and
neither such authorization by such Trustees nor such execution and delivery by
such officer shall be deemed to have been made by any of them individually or to
impose any liability on any of them personally, but shall bind only the trust
property of the Trust as provided in its Declaration of Trust.
Article 15. Entire Agreement and Amendments.
15.1 This Agreement supersedes and terminates, as of the date hereof,
all prior contracts between the Trust and Provident relating to the custody of
the
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Trust's assets. Provident and the Trust acknowledge that this Agreement and the
Compensation Addendum attached constitute the entire agreement between them with
respect to the subject matter hereof, and that any and all prior discussions,
negotiations, commitments, or understanding relating to the subject matter of
this Agreement or the Compensation Addendum are hereby superseded and merged
herein. The terms and provisions of this Agreement shall not be changed,
modified, amended, waived, or terminated in any respect whatsoever except by a
written instrument executed by Provident and the Trusts.
Article 16. Severability.
16.1 If any of the provisions of this Agreement is held to be illegal,
invalid or unenforceable in any respect, Provident and the Trust agree that such
term or provision shall be deemed to be modified to the extent necessary to
permit its enforcement to the maximum extent permitted by applicable law. If any
of the provisions of this Agreement is held to be illegal, invalid or
unenforceable in any respect, the remainder of this Agreement and all other
provisions hereof shall not be affected thereby,
IN WITNESS WHEREOF, each of the parties has caused this instrument to
be executed in its name and behalf by its duly authorized
representative as of the 18th day of December, 1992.
1992.
WITNESSETH:
XXXXXXX INVESTMENT MUTUAL FUNDS TRUST
600-D6005/D12
