Exhibit 8
CUSTODY AGREEMENT
This agreement (the "Agreement") is entered into as of the
_____ day of ___________, 1997 by and between Monterey Mutual Funds, (the
"Fund"), an open-end diversified investment business trust organized under
the laws of of the State of Massachusetts and having its office at 0000
Xxxxx Xxxxxx, Xxxxx 000, Xxxxx Xxxxxx, Xx. and Star Bank, National
Association, (the "Custodian"), a national banking association having its
principal office at 000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx, 00000.
WHEREAS, the Fund and the Custodian desire to enter into this
Agreement to provide for the custody and safekeeping of the assets of the
Fund as required by the Investment Company Act of 1940, as amended (the
"Act").
WHEREAS, the Fund hereby appoints the Custodian as custodian of
all the Fund's Securities and moneys at any time owned by the Fund during
the term of this Agreement (the "Fund Assets").
WHEREAS, the Custodian hereby accepts such appointment as
Custodian and agrees to perform the duties thereof as hereinafter set
forth.
THEREFORE, in consideration of the mutual promises hereinafter
set forth, the Fund and the Custodian agree as follows:
ARTICLE I
Definitions
The following words and phrases, when used in this Agreement,
unless the context otherwise requires, shall have the following meanings:
Authorized Person - the Chairman, President, Secretary,
Treasurer, Controller, or Senior Vice President of the Fund, or any other
person, whether or not any such person is an officer or employee of the
Fund, duly authorized by the Board of Trustees of the Fund to give Oral
Instructions and Written Instructions on behalf of the Fund, and listed in
the Certificate annexed hereto as Appendix A, or such other Certificate as
may be received by the Custodian from time to time.
Book-Entry System - the Federal Reserve Bank book-entry system
for United States Treasury securities and federal agency securities.
Depository - The Depository Trust Company ("DTC"), a limited
purpose trust company its successor(s) and its nominee(s) or any other
person or clearing agent
Dividend and Transfer Agent - the dividend and transfer agent
appointed, from time to time, pursuant to a written agreement between the
dividend and transfer agent and the Fund
Foreign Securities - a) securities issued and sold primarily
outside of the United States by a foreign government, a national of any
foreign country, or a trust or other organization incorporated or
organized under the laws of any foreign country or; b) securities issued
or guaranteed by the government of the United States, by any state, by any
political subdivision or agency thereof, or by any entity organized under
the laws of the United States or of any state thereof, which have been
issued and sold primarily outside of the United States.
Money Market Security - debt obligations issued or guaranteed as
to principal and/or interest by the government of the United States or
agencies or instrumentalities thereof, commercial paper, obligations
(including certificates of deposit, bankers' acceptances, repurchase
agreements and reverse repurchase agreements with respect to the same),
and time deposits of domestic banks and thrift institutions whose deposits
are insured by the Federal Deposit Insurance Corporation, and short-term
corporate obligations where the purchase and sale of such securities
normally require settlement in federal funds or their equivalent on the
same day as such purchase and sale, all of which mature in not more than
thirteen (13) months.
Officers - the Chairman, President, Secretary, Treasurer,
Controller, and Senior Vice President of the Fund listed in the
Certificate annexed hereto as Appendix A, or such other Certificate as may
be received by the Custodian from time to time.
Oral Instructions - verbal instructions received by the
Custodian from an Authorized Person (or from a person that the Custodian
reasonably believes in good faith to be an Authorized Person) and
confirmed by Written Instructions in such a manner that such Written
Instructions are received by the Custodian on the business day immediately
following receipt of such Oral Instructions.
Prospectus - the Fund's then currently effective prospectus and
Statement of Additional Information, as filed with and declared effective
from time to time by the Securities and Exchange Commission.
Security or Securities - Money Market Securities, common stock,
preferred stock, options, financial futures, bonds, notes, debentures,
corporate debt securities, mortgages, and any certificates, receipts,
warrants, or other instruments representing rights to receive, purchase,
or subscribe for the same or evidencing or representing any other rights
or interest therein, or any property or assets.
Written Instructions - communication received in writing by the
Custodian from an Authorized Person.
ARTICLE II
Documents and Notices to be Furnished by the Fund
A The following documents, including any amendments thereto,
will be provided contemporaneously with the execution of the Agreement, to
the Custodian by the Fund:
1. A copy of the Articles of Incorporation of the Fund
certified by the Secretary.
2. A copy of the By-Laws of the Fund certified by the
Secretary.
3. A copy of the resolution of the Board of Trustees of the
Fund appointing the Custodian, certified by the Secretary.
4. A copy of the then current Prospectus.
5. A Certificate of the President and Secretary of the Fund
setting forth the names and signatures of the Officers of
the Fund.
B. The Fund agrees to notify the Custodian in writing of the
appointment of any Dividend and Transfer Agent.
ARTICLE III
Receipt of Fund Assets
A. During the term of this Agreement, the Fund will deliver or
cause to be delivered to the Custodian all moneys constituting Fund
Assets. The Custodian shall be entitled to reverse any deposits made on
the Fund's behalf where such deposits have been entered and moneys are not
finally collected within 30 days of the making of such entry.
B. During the term of this Agreement, the Fund will deliver or
cause to be delivered to the Custodian all Securities constituting Fund
Assets. The Custodian will not have any duties or responsibilities with
respect to such Securities until actually received by the Custodian.
C. As and when received, the Custodian shall deposit to the
account(s) of the Fund any and all payments for shares of the Fund issued
or sold from time to time as they are received from the Fund's distributor
or Dividend and Transfer Agent or from the Fund itself.
ARTICLE IV
Disbursement of Fund Assets
A. The Fund shall furnish to the Custodian a copy of the
resolution of the Board of Trustees of the Fund, certified by the Fund's
Secretary, either (i) setting forth the date of the declaration of any
dividend or distribution in respect of shares of the Fund, the date of
payment thereof, the record date as of which Fund shareholders entitled to
payment shall be determined, the amount payable per share to Fund
shareholders of record as of that date, and the total amount to be paid by
the Dividend and Transfer Agent on the payment date, or (ii) authorizing
the declaration of dividends and distributions in respect of shares of the
Fund on a daily basis and authorizing the Custodian to rely on a
Certificate setting forth the date of the declaration of any such dividend
or distribution, the date of payment thereof, the record date as of which
Fund shareholders entitled to payment shall be determined, the amount
payable per share to Fund shareholders of record as of that date, and the
total amount to be paid by the Dividend and Transfer Agent on the payment
date.
On the payment date specified in such resolution or Certificate
described above, the Custodian shall segregate such amounts from moneys
held for the account of the Fund so that they are available for such
payment.
B. Upon receipt of Written Instructions so directing it, the
Custodian shall segregate amounts necessary for the payment of redemption
proceeds to be made by the Dividend and Transfer Agent from moneys held
for the account of the Fund so that they are available for such payment.
C. Upon receipt of a Certificate directing payment and setting
forth the name and address of the person to whom such payment is to be
made, the amount of such payment, and the purpose for which payment is to
be made, the Custodian shall disburse amounts as and when directed from
the Fund Assets. The Custodian is authorized to rely on such directions
and shall be under no obligation to inquire as to the propriety of such
directions.
D. Upon receipt of a Certificate directing payment, the
Custodian shall disburse moneys from the Fund Assets in payment of the
Custodian's fees and expenses as provided in Article VIII hereof.
ARTICLE V
Custody of Fund Assets
A. The Custodian shall open and maintain a separate bank
account or accounts in the United States in the name of the Fund, subject
only to draft or order by the Custodian acting pursuant to the terms of
this Agreement, and shall hold all cash received by it from or for the
account of the Fund, other than cash maintained by the Fund in a bank
account established and used by the Fund in accordance with Rule 17f-3
under the Act. Moneys held by the Custodian on behalf of the Fund may be
deposited by the Custodian to its credit as Custodian in the banking
department of the Custodian. Such moneys shall be deposited by the
Custodian in its capacity as such, and shall be withdrawable by the
Custodian only in such capacity.
B. The Custodian shall hold all Securities delivered to it in
safekeeping in a separate account or accounts maintained at Star Bank,
N.A. for the benefit of the Fund.
C. All Securities held which are issued or issuable only in
bearer form, shall be held by the Custodian in that form; all other
Securities held for the Fund shall be registered in the name of the
Custodian or its nominee. The Fund agrees to furnish to the Custodian
appropriate instruments to enable the Custodian to hold, or deliver in
proper form for transfer, any Securities that it may hold for the account
of the Fund and which may, from time to time, be registered in the name of
the Fund.
D. With respect to all Securities held for the Fund , the
Custodian shall on a timely basis (concerning items 1 and 2 below, as
defined in the Custodian's Standards of Service Guide, as amended from
time to time, annexed hereto as Appendix C):
1.) Collect all income due and payable with respect to such
Securities;
2.) Present for payment and collect amounts payable upon all
Securities which may mature or be called, redeemed, or
retired, or otherwise become payable;
3.) Surrender Securities in temporary form for definitive
Securities; and
4.) Execute, as agent, any necessary declarations or
certificates of ownership under the Federal income tax laws
or the laws or regulations of any other taxing authority,
including any foreign taxing authority, now or hereafter in
effect.
E. Upon receipt of a Certificate and not otherwise, the
Custodian shall:
1.) Execute and deliver to such persons as may be designated in
such Certificate proxies, consents, authorizations, and any
other instruments whereby the authority of the Fund as
beneficial owner of any Securities may be exercised;
2.) Deliver any Securities in exchange for other Securities or
cash issued or paid in connection with the liquidation,
reorganization, refinancing, merger, consolidation, or
recapitalization of any trust, or the exercise of any
conversion privilege;
3.) Deliver any Securities to any protective committee,
reorganization committee, or other person in connection
with the reorganization, refinancing, merger,
consolidation, recapitalization, or sale of assets of any
trust, and receive and hold under the terms of this
Agreement such certificates of deposit, interim receipts or
other instruments or documents as may be issued to it to
evidence such delivery;
4.) Make such transfers or exchanges of the assets of the Fund
and take such other steps as shall be stated in said
Certificate to be for the purpose of effectuating any duly
authorized plan of liquidation, reorganization, merger,
consolidation or recapitalization of the Fund; and
5.) Deliver any Securities held for the Fund to the depository
agent for tender or other similar offers.
F. The Custodian shall promptly deliver to the Fund all
notices, proxy material and executed but unvoted proxies pertaining to
shareholder meetings of Securities held by the Fund. The Custodian shall
not vote or authorize the voting of any Securities or give any consent,
waiver or approval with respect thereto unless so directed by a
Certificate or Written Instruction.
G. The Custodian shall promptly deliver to the Fund all
information received by the Custodian and pertaining to Securities held by
the Fund with respect to tender or exchange offers, calls for redemption
or purchase, or expiration of rights.
ARTICLE VI
Purchase and Sale of Securities
A. Promptly after each purchase of Securities by the Fund, the
Fund shall deliver to the Custodian (i) with respect to each purchase of
Securities which are not Money Market Securities, Written Instructions,
and (ii) with respect to each purchase of Money Market Securities, Written
Instructions or Oral Instructions, specifying with respect to each such
purchase the;
1.) name of the issuer and the title of the Securities,
2.) principal amount purchased and accrued interest, if any,
3.) date of purchase and settlement,
4.) purchase price per unit,
5.) total amount payable, and
6.) name of the person from whom, or the broker through which,
the purchase was made.
The Custodian shall, against receipt of Securities purchased by or for the
Fund, pay out of the Fund Assets, the total amount payable to the person
from whom or the broker through which the purchase was made, provided that
the same conforms to the total amount payable as set forth in such Written
Instructions or Oral Instructions, as the case may be.
B. Promptly after each sale of Securities by the Fund, the
Fund shall deliver to the Custodian (i) with respect to each sale of
Securities which are not Money Market Securities, Written Instructions,
and (ii) with respect to each sale of Money Market Securities, Written
Instructions or Oral Instructions, specifying with respect to each such
sale the;
1.) name of the issuer and the title of the Securities,
2.) principal amount sold and accrued interest, if any,
3.) date of sale and settlement,
4.) sale price per unit,
5.) total amount receivable, and
6.) name of the person to whom, or the broker through which,
the sale was made.
The Custodian shall deliver the Securities against receipt of the total
amount receivable, provided that the same conforms to the total amount
receivable as set forth in such Written Instructions or Oral Instructions,
as the case may be.
C. On contractual settlement date, the account of the Fund
will be charged for all purchased Securities settling on that day,
regardless of whether or not delivery is made. Likewise, on contractual
settlement date, proceeds from the sale of Securities settling that day
will be credited to the account of the Fund, irrespective of delivery.
D. Purchases and sales of Securities effected by the Custodian
will be made on a delivery versus payment basis. The Custodian may, in
its sole discretion, upon receipt of a Certificate, elect to settle a
purchase or sale transaction in some other manner, but only upon receipt
of acceptable indemnification from the Fund.
E. The Custodian shall, upon receipt of a Written Instructions
so directing it, establish and maintain a segregated account or accounts
for and on behalf of the Fund. Cash and/or Securities may be transferred
into such account or accounts for specific purposes, to-wit:
1.) in accordance with the provision of any agreement among the
Fund, the Custodian, and a broker-dealer registered under
the Securities and Exchange Act of 1934, as amended, and
also a member of the National Association of Securities
Dealers (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, the Commodity Futures Trading Commission, any
registered contract market, or any similar organization or
organizations requiring escrow or other similar
arrangements in connection with transactions by the Fund;
2.) for purposes of segregating cash or government securities
in connection with options purchased, sold, or written by
the Fund or commodity futures contracts or options thereon
purchased or sold by the Fund;
3.) for the purpose of compliance by the fund with the
procedures required for reverse repurchase agreements, firm
commitment agreements, standby commitment agreements, and
short sales by Act Release No. 10666, or any subsequent
release or releases or rule of the Securities and Exchange
Commission relating to the maintenance of segregated
accounts by registered investment companies; and
4.) for other corporate purposes, only in the case of this
clause 4 upon receipt of a copy of a resolution of the
Board of Trustees of the Fund, certified by the Secretary
of the Fund, setting forth the purposes of such segregated
account.
F. Except as otherwise may be agreed upon by the parties
hereto, the Custodian shall not be required to comply with any Written
Instructions to settle the purchase of any Securities on behalf of the
Fund unless there is sufficient cash in the account(s) at the time or to
settle the sale of any Securities from an account(s) unless such
Securities are in deliverable form. Notwithstanding the foregoing, if the
purchase price of such Securities exceeds the amount of cash in the
account(s) at the time of such purchase, the Custodian may, in its sole
discretion, advance the amount of the difference in order to settle the
purchase of such Securities. The amount of any such advance shall be
deemed a loan from the Custodian to the Fund payable on demand and bearing
interest accruing from the date such loan is made up to but not including
the date such loan is repaid at a rate per annum customarily charged by
the Custodian on similar loans.
ARTICLE VII
Fund Indebtedness
In connection with any borrowings by the Fund, the Fund will
cause to be delivered to the Custodian by a bank or broker requiring
Securities as collateral for such borrowings (including the Custodian if
the borrowing is from the Custodian), a notice or undertaking in the form
currently employed by such bank or broker setting forth the amount of
collateral. The Fund shall promptly deliver to the Custodian a
Certificate specifying with respect to each such borrowing: (a) the name
of the bank or broker, (b) the amount and terms of the borrowing, which
may be set forth by incorporating by reference an attached promissory note
duly endorsed by the Fund, or a loan agreement, (c) the date, and time if
known, on which the loan is to be entered into, (d) the date on which the
loan becomes due and payable, (e) the total amount payable to the Fund on
the borrowing date, and (f) the description of the Securities securing the
loan, including the name of the issuer, the title and the number of shares
or the principal amount. The Custodian shall deliver on the borrowing
date specified in the Certificate the required collateral against the
lender's delivery of the total loan amount then payable, provided that
the same conforms to that which is described in the Certificate. The
Custodian shall deliver, in the manner directed by the Fund, such
Securities as additional collateral, as may be specified in a Certificate,
to secure further any transaction described in this Article VII. The Fund
shall cause all Securities released from collateral status to be returned
directly to the Custodian and the Custodian shall receive from time to
time such return of collateral as may be tendered to it.
The Custodian may, at the option of the lender, keep such
collateral in its possession, subject to all rights therein given to the
lender because of the loan. The Custodian may require such reasonable
conditions regarding such collateral and its dealings with third-party
lenders as it may deem appropriate.
ARTICLE VIII
Concerning the Custodian
A. Except as otherwise provided herein, the Custodian shall
not be liable for any loss or damage resulting from its action or omission
to act or otherwise, except for any such loss or damage arising out of its
own gross negligence or willful misconduct. The Fund shall defend,
indemnify and hold harmless the Custodian and its directors, officers,
employees and agents with respect to any loss, claim, liability or cost
(including reasonable attorneys' fees) arising or alleged to arise from or
relating to the Fund's duties hereunder or any other action or inaction of
the Fund or its Trustees, officers, employees or agents, except such as
may arise from the negligent action, omission, willful misconduct or
breach of this Agreement by the Custodian. The Custodian may, with respect
to questions of law, apply for and obtain the advice and opinion of
counsel, at the expense of the Fund, and shall be fully protected with
respect to anything done or omitted by it in good faith in conformity with
the advice or opinion of counsel. The provisions under this paragraph
shall survive the termination of this Agreement.
B. Without limiting the generality of the foregoing, the
Custodian, acting in the capacity of Custodian hereunder, shall be under
no obligation to inquire into, and shall not be liable for:
1.) The validity of the issue of any Securities purchased by or
for the account of the Fund, the legality of the purchase
thereof, or the propriety of the amount paid therefor;
2.) The legality of the sale of any Securities by or for the
account of the Fund, or the propriety of the amount for
which the same are sold;
3.) The legality of the issue or sale of any shares of the
Fund, or the sufficiency of the amount to be received
therefor;
4.) The legality of the redemption of any shares of the Fund,
or the propriety of the amount to be paid therefor;
5.) The legality of the declaration or payment of any dividend
by the Fund in respect of shares of the Fund;
6.) The legality of any borrowing by the Fund on behalf of the
Fund, using Securities as collateral;
C. The Custodian shall not be under any duty or obligation to
take action to effect collection of any amount due to the Fund from any
Dividend and Transfer Agent of the Fund nor to take any action to effect
payment or distribution by any Dividend and Transfer Agent of the Fund of
any amount paid by the Custodian to any Dividend and Transfer Agent of the
Fund in accordance with this Agreement.
D. Notwithstanding Section D of Article V, the Custodian
shall not be under any duty or obligation to take action to effect
collection of any amount, if the Securities upon which such amount is
payable are in default, or if payment is refused after due demand or
presentation, unless and until (i) it shall be directed to take such
action by a Certificate and (ii) it shall be assured to its satisfaction
(including prepayment thereof) of reimbursement of its costs and expenses
in connection with any such action.
E. The Fund acknowledges and hereby authorizes the Custodian
to hold Securities through its various agents described in Appendix B
annexed hereto. The Fund hereby represents that such authorization has
been duly approved by the Board of Trustees of the Fund as required by the
Act. The Custodian acknowledges that although certain Fund Assets are
held by its agents, the Custodian remains primarily liable for the
safekeeping of the Fund Assets.
In addition, the Fund acknowledges that the Custodian may
appoint one or more financial institutions, as agent or agents or as
sub-custodian or sub-custodians, including, but not limited to, banking
institutions located in foreign countries, for the purpose of holding
Securities and moneys at any time owned by the Fund. The Custodian shall
not be relieved of any obligation or liability under this Agreement in
connection with the appointment or activities of such agents or
sub-custodians. Any such agent or sub-custodian shall be qualified to
serve as such for assets of investment companies registered under the Act.
Upon request, the Custodian shall promptly forward to the Fund any
documents it receives from any agent or sub-custodian appointed hereunder
which may assist trustees of registered investment companies fulfill their
responsibilities under Rule 17f-5 of the Act.
F. The Custodian shall not be under any duty or obligation to
ascertain whether any Securities at any time delivered to or held by it
for the account of the Fund are such as properly may be held by the Fund
under the provisions of the Articles of Incorporation and the Fund's
By-Laws.
G. The Custodian shall treat all records and other information
relating to the Fund and the Fund Assets as confidential and shall not
disclose any such records or information to any other person unless (i)
the Fund shall have consented thereto in writing or (ii) such disclosure
is required by law.
H. The Custodian shall be entitled to receive and the Fund
agrees to pay to the Custodian such compensation as shall be determined
pursuant to Appendix D attached hereto, or as shall be determined pursuant
to amendments to such Appendix D. The Custodian shall be entitled to
charge against any money held by it for the account of the Fund, the
amount of any of its fees, any loss, damage, liability or expense,
including counsel fees. The expenses which the Custodian may charge
against the account of the Fund include, but are not limited to, the
expenses of agents or sub-custodians incurred in settling transactions
involving the purchase and sale of Securities of the Fund.
I. The Custodian shall be entitled to rely upon any Oral
Instructions and any Written Instructions. The Fund agrees to forward to
the Custodian Written Instructions confirming Oral Instructions in such a
manner so that such Written Instructions are received by the Custodian,
whether by hand delivery, facsimile or otherwise, on the same business day
on which such Oral Instructions were given. The Fund agrees that the
failure of the Custodian to receive such confirming instructions shall in
no way affect the validity of the transactions or enforceability of the
transactions hereby authorized by the Fund. The Fund agrees that the
Custodian shall incur no liability to the Fund for acting upon Oral
Instructions given to the Custodian hereunder concerning such
transactions.
J. The Custodian will (i) set up and maintain proper books of
account and complete records of all transactions in the accounts
maintained by the Custodian hereunder in such manner as will meet the
obligations of the Fund under the Act, with particular attention to
Section 31 thereof and Rules 31a-1 and 31a-2 thereunder and those records
are the property of the Fund, and (ii) preserve for the periods prescribed
by applicable Federal statute or regulation all records required to be so
preserved. All such books and records shall be the property of the Fund,
and shall be open to inspection and audit at reasonable times and with
prior notice by Officers and auditors employed by the Fund.
K. The Custodian shall send to the Fund any report received on
the systems of internal accounting control of the Custodian, or its agents
or sub-custodians, as the Fund may reasonably request from time to time.
L. The Custodian performs only the services of a custodian and
shall have no responsibility for the management, investment or
reinvestment of the Securities from time to time owned by the Fund. The
Custodian is not a selling agent for shares of the Fund and performance of
its duties as custodian shall not be deemed to be a recommendation to the
Fund's depositors or others of shares of the Fund as an investment.
M. The Custodian shall take all reasonable action, that the
Fund may from time to time request, to assist the Fund in obtaining
favorable opinions from the Fund's independent accountants, with respect
to the Custodian's activities hereunder, in connection with the
preparation of the Fund's Form N-1A, Form N-SAR, or other annual reports
to the Securities and Exchange Commission.
N. The Fund hereby pledges to and grants the Custodian a
security interest in any Fund Assets to secure the payment of any
liabilities of the Fund to the Custodian, whether acting in its capacity
as Custodian or otherwise, or on account of money borrowed from the
Custodian. This pledge is in addition to any other pledge of collateral
by the Fund to the Custodian.
ARTICLE IX
Force Majeure
Neither the Custodian nor the Corporation shall be liable for
any failure or delay in performance of its obligations under this
Agreement arising out of or caused, directly or indirectly, by
circumstances beyond its reasonable control, including, without
limitation, acts of God; earthquakes; fires; floods; wars; civil or
military disturbances; sabotage; strikes; epidemics; riots; labor
disputes; acts of civil or military authority; governmental actions; or
inability to obtain labor, material, equipment or transportation;
provided, however, that the Custodian, in the event of a failure or delay,
shall use its best efforts to ameliorate the effects of such failure or
delay.
ARTICLE X
Termination
A. Either of the parties hereto may terminate this Agreement
for any reason by giving to the other party a notice in writing specifying
the date of such termination, which shall be not less than ninety (90)
days after the date of giving of such notice. If such notice is given by
the Fund, it shall be accompanied by a copy of a resolution of the Board
of Trustees of the Fund, certified by the Secretary of the Fund, electing
to terminate this Agreement and designating a successor custodian or
custodians. In the event such notice is given by the Custodian, the Fund
shall, on or before the termination date, deliver to the Custodian a copy
of a resolution of the Board of Trustees of the Fund, certified by the
Secretary, designating a successor custodian or custodians to act on
behalf of the Fund. In the absence of such designation by the Fund, the
Custodian may designate a successor custodian which shall be a bank or
trust company having not less than $100,000,000 aggregate capital,
surplus, and undivided profits. Upon the date set forth in such notice
this Agreement shall terminate, and the Custodian, provided that it has
received a notice of acceptance by the successor custodian, shall deliver,
on that date, directly to the successor custodian all Securities and
moneys then owned by the Fund and held by it as Custodian. Upon
termination of this Agreement, the Fund shall pay to the Custodian on
behalf of the Fund such compensation as may be due as of the date of such
termination. The Fund agrees on behalf of the Fund that the Custodian
shall be reimbursed for its reasonable costs in connection with the
termination of this Agreement.
B. If a successor custodian is not designated by the Fund, or
by the Custodian in accordance with the preceding paragraph, or the
designated successor cannot or will not serve, the Fund shall, upon the
delivery by the Custodian to the Fund of all Securities (other than
Securities held in the Book-Entry System which cannot be delivered to the
Fund) and moneys then owned by the Fund, be deemed to be the custodian
for the Fund, and the Custodian shall thereby be relieved of all duties
and responsibilities pursuant to this Agreement, other than the duty with
respect to Securities held in the Book-Entry System, which cannot be
delivered to the Fund, which shall be held by the Custodian in accordance
with this Agreement.
ARTICLE XI
MISCELLANEOUS
A. Appendix A sets forth the names and the signatures of all
Authorized Persons, as certified by the Secretary of the Fund. The Fund
agrees to furnish to the Custodian a new Appendix A in form similar to the
attached Appendix A, if any present Authorized Person ceases to be an
Authorized Person or if any other or additional Authorized Persons are
elected or appointed. Until such new Appendix A shall be received, the
Custodian shall be fully protected in acting under the provisions of this
Agreement upon Oral Instructions or signatures of the then current
Authorized Persons as set forth in the last delivered Appendix A.
B. No recourse under any obligation of this Agreement or for
any claim based thereon shall be had against any organizer, shareholder,
Officer, Director, past, present or future as such, of the Fund or of any
predecessor or successor, either directly or through the Fund or any such
predecessor or successor, whether by virtue of any constitution, statute
or rule of law or equity, or be the enforcement of any assessment or
penalty or otherwise; it being expressly agreed and understood that this
Agreement and the obligations thereunder are enforceable solely against
the Fund, and that no such personal liability whatever shall attach to, or
is or shall be incurred by, the organizers, shareholders, Officers,
Trustees of the Fund or of any predecessor or successor, or any of them as
such. To the extent that any such liability exists, it is hereby expressly
waived and released by the Custodian as a condition of, and as a
consideration for, the execution of this Agreement.
C. The obligations set forth in this Agreement as having been
made by the Fund have been made by the Board of Trustees, acting as such
Trustees for and on behalf of the Fund, pursuant to the authority vested
in them under the laws of the State of Massachusetts, the Articles of
Incorporation and the By-Laws of the Fund. This Agreement has been
executed by Officers of the Fund as officers, and not individually, and
the obligations contained herein are not binding upon any of the Trustees,
Officers, agents or holders of shares, personally, but bind only the Fund.
D. Provisions of the Prospectus and any other documents
(including advertising material) specifically mentioning the Custodian
(other than merely by name and address) shall be reviewed with the
Custodian by the Fund prior to publication and/or dissemination or
distribution, and shall be subject to the consent of the Custodian.
E. Any notice or other instrument in writing, authorized or
required by this Agreement to be given to the Custodian, shall be
sufficiently given if addressed to the Custodian and mailed or delivered
to it at its offices at Star Bank Center, 000 Xxxxxx Xxxxxx, X. X. 0000,
Xxxxxxxxxx, Xxxx 00000, attention Mutual Fund Custody Department, or at
such other place as the Custodian may from time to time designate in
writing.
F. Any notice or other instrument in writing, authorized or
required by this Agreement to be given to the Fund shall be sufficiently
given when delivered to the Fund or on the second business day following
the time such notice is deposited in the U.S. mail postage prepaid and
addressed to the Fund at its office at 0000 Xxxxx Xxxxxx, Xxxxx 000, Xxxxx
Xxxxxx, XX 00000xx at such other place as the Fund may from time to time
designate in writing.
G. This Agreement, with the exception of the Appendices, may
not be amended or modified in any manner except by a written agreement
executed by both parties with the same formality as this Agreement, and
authorized and approved by a resolution of the Board of Trustees of the
Fund.
H. This Agreement shall extend to and shall be binding upon
the parties hereto, and their respective successors and assigns; provided,
however, that this Agreement shall not be assignable by the Fund or by the
Custodian, and no attempted assignment by the Fund or the Custodian shall
be effective without the written consent of the other party hereto.
I. This Agreement shall be construed in accordance with the
laws of the State of Ohio.
J. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but such
counterparts shall, together, constitute only one instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective Officers, thereunto duly
authorized as of the day and year first above written.
ATTEST: Monterey Mutual Fund
_____________________________ By: ______________________________
Title: ____________________
ATTEST: Star Bank, N.A.
_____________________________ By: ______________________________
Title: ____________________
APPENDIX A
Authorized Persons Specimen Signatures
Chairman:
President:
Secretary:
Treasurer:
Controller:
Adviser Employees:
Transfer Agent/
Fund Accountant
Employees:
APPENDIX B
The following agents are employed currently by Star Bank, N.A. for
securities processing and control . . .
The Depository Trust Company (New York)
0 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
The Federal Reserve Bank
Cincinnati and Cleveland Branches
Bankers Trust Company
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
(For Foreign Securities and certain non-DTC eligible
Securities)
APPENDIX C
Standards of Service Guide
APPENDIX D
Addendum
Schedule of Compensation (1) applies to the following funds:
19-6000 Xxxxxx New World Technology Convertibles Fund
19-6001 Camborne Government Income Fund
19-6002 OCM Gold Fund
19-6003 PIA Equity Fund
19-6005 Xxxxxx New World Biotechnology Fund
19-6006 Xxxxxx New World Technology Fund
Schedule of Compensation (2) applies to the following fund:
19-6007 PIA Short-Term Government Fund
Schedule of Compensation (3) applies to the following fund:
19-6008 PIA Global Bond Fund
(1)
Schedule of Compensation
for all funds except for the PIA Short-Term Government Bond Fund.
(2)
Schedule of Compensation
for the PIA Short-Term Government Bond Fund.
(1,2&3)
Cash Management Services
APPENDIX E
Cash Management Services
