CUSTODY AGREEMENT
Agreement made as of the 7th day of December, 1994, between Xxxxxxx
Investments, (the "Trust"), a Massachusetts business trust and having its
office at 0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xx. Xxxxx, Xxxxxxxx 00000,
which is registered as an open-end management investment company under the
Investment Company Act of 1940, as amended (the "1940 Act"), and Star Bank,
N.A. (the "Custodian"), a national banking association having its principal
office and place of business at Star Bank Center, 000 Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxx 00000, which Agreement provides for the furnishing of
custodian services to the Trust. The Trust has created several series of
shares and may create additional series, all of which will be governed by
this agreement.
WITNESSETH:
that for and in consideration of the mutual promises hereinafter set forth
the Trust, on behalf of the Trust, and the Custodian agree as follows:
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
1. "Authorized Person" shall mean the President, Treasurer, Senior
Vice President, and Vice President, or any other person, whether or not any
such person is an officer or employee of the Trust, duly authorized by the
Board of Trustees of the Trust to give Oral Instructions and Written
Instructions on behalf of the Trust 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, subject in each case to any limitations on the
authority of such person as set forth in Appendix A or any such Certificate.
2. "Book-Entry System" shall mean the Federal Reserve/Treasury
book-entry system for United States and federal agency securities, its
successor or successors and its nominee or nominees, provided the Custodian
has received a certified copy of a resolution of Board of Trustees of the
Trust specifically approving deposits in the Book-Entry System.
3. "Certificate" shall mean any notice, instruction, or other
instrument in writing, authorized or required by this Agreement to be given
to the Custodian which is signed on behalf of the Trust by an officer of the
Trust and is actually received by the Custodian.
4. "Depository" shall mean The Depository Trust Company ("DTC"),
a clearing agency registered with the Securities and Exchange Commission,
its successor or successors and its nominee or nominees. The term
"Depository" shall further mean and include any other person or clearing
agency authorized to act as a depository under the 1940 Act, its successor
or successors and its nominee or nominees, provided that the Custodian has
received a certified copy of a resolution of the Board of Trustees of the
Trust specifically approving such other person or clearing agency as a
depository.
5. "Dividend and Transfer Agent" shall mean Xxxxxx Management
Corporation, a Michigan corporation which has been appointed by the Trust
to serve as the Trust's dividend disbursing agent and transfer agent,
pursuant to a written agreement with the Trust, or any successor appointed
to serve in either or both such capacities, which successor the Trust shall
immediately report to the Custodian in writing.
6. "Money Market Security" shall be deemed to include, without
limitation, 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 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 or
sale, all of which mature in not more than thirteen (13) months.
7. "Officers" shall be deemed to include the President, the
Treasurer, Senior Vice President and the Vice President listed in the
Certificate annexed hereto as Appendix A or such other Certificate as may
be received by the Custodian from time to time.
8. "Oral Instructions" shall mean oral instructions actually
received by the Custodian from an Authorized Person (or from a person which
the Custodian reasonably believes in good faith to be an Authorized Person)
and confirmed by Written Instructions from Authorized Persons in such manner
so that such Written Instructions are received by the Custodian on the next
business day.
9. "Prospectus" shall mean the Trust'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.
10. "Security or Securities" shall mean Money Market Securities,
common or preferred stocks, options, financial futures and options thereon,
bonds, debentures, corporate debt securities, notes, mortgages or other
obligations, 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. which are issued and sold primarily in the United
States.
11. "Written Instructions" shall mean communication actually
received by the Custodian from one Authorized Person or from one person
which the Custodian reasonably believes in good faith to be an Authorized
Person in writing or by telex or any other such system whereby the receiver
of such communication is able to verify by codes or otherwise with a
reasonable degree of certainty the authenticity of the senders of such
communication.
12. "Foreign Securities" include securities issued and sold
primarily outside of the United States by a foreign government, a national
of any foreign country or a corporation or other organization incorporated
or organized under the laws of any foreign country and securities issued or
guaranteed by the Government of the United States or by any state or any
political subdivision thereof or by any agency thereof by any entity
organized under the laws of the United States or of any state thereof which
have been issued and sold primarily outside the United States.
ARTICLE II
APPOINTMENT OF CUSTODIAN
1. The Trust hereby constitutes and appoints the Custodian as
custodian of all the Securities and monies at any time owned by the Trust
during the period of this Agreement (the "Trust Assets"). Pursuant to
Article IX, Paragraph 6, the Trust may also hereafter constitute and appoint
the Custodian as custodian for the Foreign Securities of the Trust.
2. The Custodian hereby accepts appointment as such Custodian and
agrees to perform the duties thereof as hereinafter set forth.
ARTICLE III
DOCUMENTS TO BE FURNISHED BY THE TRUST
The Trust hereby agrees to furnish to the Custodian the following
documents:
1. A copy of its Declaration of Trust certified by its Secretary.
2. A copy of its By-laws certified by its Secretary.
3. A copy of the resolution of its Board of Trustees appointing the
Custodian, certified by its Secretary.
4. A copy of the most recent Prospectus of the Trust.
5. A Certificate of the President and Secretary setting forth the
names and signatures of the present officers of the Trust.
ARTICLE IV
CUSTODY OF CASH AND SECURITIES
1. The Trust will deliver or cause to be delivered to the Custodian
all Trust Assets, including cash received for the issuance of its shares,
at any time during the period of this Agreement. The Custodian will not be
responsible for such Trust Assets until actually received by it or any duly
appointed subcustodian. Upon such receipt, the Custodian shall hold in
safekeeping and. physically segregate at all times from the property of any
other persons, firms or corporations all Trust Assets received by it from
or for the account of the Trust. The Custodian will be entitled to reverse
any credits made on the Trust's behalf where such credits have been
previously made and monies are not finally collected within 90 days of the
making of such credits. The Custodian is hereby authorized by the Trust to
actually deposit on behalf of the Trust, any Trust Securities in the
Book-Entry System or in a Depository, provided, however, that the Custodian
shall always be accountable to the Trust for the Trust Securities so
deposited. Trust Securities deposited in the Book-Entry System or the
Depository will be represented in accounts which include only assets held
by the Custodian for customers, including (but not limited to) accounts in
which the Custodian acts in a fiduciary or representative capacity.
2. The Custodian shall open and maintain a separate bank account
or accounts. in the United States in the name of the Trust, 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 Trust, other than cash maintained by the Trust in a bank account
established and used by the Trust in accordance with Rule 17f-3 under the
1940 Act. Monies held by the Custodian for the Trust may be deposited by
the Custodian to its credit as custodian in the banking department of the
Custodian or in such other banks, thrift institutions or trust companies as
the Custodian may, in its discretion, deem necessary or desireable;
provided, however, that each such account with another bank, thrift
institution, or trust company and the monies deposited with any of them
shall, on behalf of the Trust, be approved by the Board of Directors of the
Trust. Such monies shall be deposited by the Custodian in its capacity as
such, and shall be withdrawable by the Custodian only in such capacity.
3. The Custodian shall disburse monies of the Trust from the bank
accounts maintained pursuant to Paragraph 2 in the following cases only:
(a) In payment for Securities purchased for the account of the
Trust, as provided in Article V;
(b) In payment of dividends or distributions, as provided in Article
VI hereof;
(c) In payment of original issue or other taxes, as provided in
Article VII hereof;
(d) In payment for shares of the Trust redeemed by it, as provided
in Article VII hereof;
(e) Pursuant to Certificates (i) directing payment and setting forth
the name and address of the person to whom the payment is to be made, the
amount of such payment and the purpose for which payment is to be made (the
Custodian not being required to question such direction) or
(f) In reimbursement of the expenses and liabilities of the
Custodian, as provided in paragraph 9 of Article IX hereof.
4. Promptly after five o'clock, p.m., Central Time on each day the
Trust conducts business and values its portfolio, the Custodian shall
furnish the Trust with a detailed statement of monies held for the Trust
under this Agreement and with confirmations and a summary of all transfers
to or from the account of the Trust during said day. Where Securities are
transferred to the account of the Trust without physical delivery, the
Custodian shall also identify in its records as belonging to the Trust a
quantity of Securities in a fungible bulk of Securities registered in the
name of the Custodian (or its nominee) or shown on the Custodian's account
on the books of the Book-Entry System or Depository. At least monthly and
from time to time, the Custodian shall furnish the Trust with a detailed
statement of the Securities held for the Trust under this Agreement.
5. All Securities held for the Trust, which are issued or issuable
only in bearer form, except such Securities as are held in the Book-Entry
System, shall be held by the Custodian in that form; all other Securities
held for the Trust may be registered in the name of the Trust, in the name
of any duly appointed registered nominee of the Custodian, as the Custodian
may from time to time determine, or in the name of the Book-Entry System or
Depository or their successor or successors, or their nominee or nominees.
The Trust agrees to furnish to the Custodian appropriate instruments to
enable the Custodian to hold or deliver in proper form for transfer, or to
register in the name of its registered nominee or in the name of the
Book-Entry System or Depository, any Securities which it may hold for the
account of the Trust and which may from time to time be registered in the
name of the Trust. The Custodian shall hold all such Securities which are
not held in the Book-Entry System by a Depository or a Subcustodian in a
separate account or accounts in the name of the Trust segregated at all
times from those of any other Trust maintained and operated by the Trust and
from those of any other person or persons.
6. Unless otherwise instructed to the contrary by a Certificate,
the Custodian shall with respect to all Securities held for the Trust in
accordance with this Agreement on a timely basis:
(a) Collect all income due or payable to the Trust with respect to
the Trust Assets;
(b) Present for payment and collect the amount payable upon all
Securities which may mature or be called, redeemed, or retired, or otherwise
become payable;
(c) Surrender Securities issued in temporary form for definitive
Securities;
(d) Execute, as Custodian, any necessary declarations or
certificates of ownership under the Federal income tax laws or the laws or
regulations of any other taxing authority, including any foreign taxing
authority, now or hereafter in effect; and
(e) Hold directly, or through the Book-Entry System or the
Depository with respect to Securities therein deposited, for the account of
the Trust all rights and similar securities issued with respect to any
Securities held by the Custodian hereunder.
7. Upon receipt of a Certificate and not otherwise, the Custodian
directly or through the use of the Book-Entry System or the Depository
shall:
(a) 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 Trust as owner of any Securities may be
exercised;
(b) Deliver any Securities held for the Trust in exchange for other
Securities or cash issued or paid in connection with the liquidation,
reorganization, refinancing, merger, consolidation or recapitalization of
any corporation, or the exercise of any conversion privilege;
(c) Deliver any Securities held for the account of the Trust to any
protective committee, reorganization committee or other person in connection
with the reorganization, refinancing, merger, consolidation,
recapitalization or sale of assets of any corporation, 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; and
(d) Make such transfers or exchanges of the assets of the Trust 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 Trust.
(e) Deliver any securities held for the Trust to the depository
agent in connection with tender other similar offers for portfolio
securities of the Trust.
8. The Custodian shall promptly deliver to the Trust all notices,
proxy material and executed but unvoted proxies pertaining to shareholder
meetings of Securities held by the Trust. 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.
9. The Custodian shall promptly deliver to the Trust all material
received by the Custodian and pertaining to Securities held by the Trust
with respect to tender or exchange offers, calls for redemption or purchase,
expiration of rights, name changes, stock splits and stock dividends, or any
other activity involving ownership rights in such Securities.
ARTICLE V
PURCHASE AND SALE OF INVESTMENTS OF THE TRUST
1. Promptly after each purchase of Securities by the Trust, the
Trust shall deliver to the Custodian (i) with respect to each purchase of
Securities which are not Money Market Securities, a Certificate or Written
Instructions, and (ii) with respect to each purchase of Money Market
Securities, Written Instructions, a Certificate or Oral Instructions,
specifying with respect to each such purchase: (a) the name of the issuer
and the title of the Securities, (b) the principal amount purchased and
accrued interest, if any, (c) the date of purchase and settlement, (d) the
purchase price per unit, (e) the total amount payable upon such purchase and
(f) the name of the person from whom or the broker through whom the purchase
was made. The Custodian shall upon receipt of Securities purchased by or
for the Trust, pay out of the monies held for the account of the Trust the
total amount payable to the person from whom or the broker through whom the
purchase was made, provided that the same conforms to the total amount
payable as set forth in such Certificate, Written Instructions or Oral
Instructions.
2. Promptly after each sale of Securities by the Trust for the
account of the Trust, the Trust shall deliver to the Custodian (i) with
respect to each sale of Securities which are not Money Market Securities,
a Certificate or Written Instructions, and (ii) with respect to each sale
of Money Market Securities, Written Instructions, a Certificate or Oral
Instructions, specifying with respect to each such sale: (a) the name of the
issuer and the title of the Security, (b) the principal amount sold, and
accrued interest, if any, (c) the date of sale, (d) the sale price per unit,
(e) the total amount payable to the Trust upon such sale and (f) the name
of the broker through whom or the person to whom the sale was made. The
Custodian shall deliver the Securities upon receipt of the total amount
payable to the Trust upon such, provided that the same conforms to the total
amount payable as set forth in such Certificate, Written Instructions or
Oral Instructions. Subject to the foregoing, the Custodian may accept
payment in such form as shall be satisfactory to it, and may deliver
Securities and arrange for payment in accordance with the customs prevailing
among dealers in Securities.
3. The Custodian shall upon receipt of Written instructions
establish and maintain a segregated account or accounts for and on behalf
of the Trust, into which account or accounts may be transferred cash and/or
securities, including securities maintained in an account in a Depository
or Book-Entry System,
(i) in accordance with the provisions of any Agreement among the
Trust, the Custodian 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 the Trust,
or
(ii) for purposes of segregating cash or government securities
in connection with options purchased, sold or written by the Trust or
commodity futures contracts or options thereon purchased or sold by the
Trust, or
(iii) for the purposes of compliance by the Trust with the
procedures required by Investment Company 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, or
(iv) for other proper corporate purposes, but only, in the case
of clause (iv), upon receipt of, in addition to Written Instructions, a
certified copy of a resolution of the Board of Trustees of the Trust signed
by an Authorized Person and certified by the Secretary or an Assistant
Secretary, setting forth the purposes of such segregated account and
declaring such purposes to be proper corporate purposes.
4. On contractual settlement date, the account of the Trust will
be charged for all purchases settling on that day, regardless of whether or
not delivery is made. On contractual settlement date, sale proceeds will
likewise be credited to the account of the Trust irrespective of delivery.
In the case of "sale fails", the Custodian may request the assistance
of the Trust in making delivery of the failed Security.
5. Except as specifically stated otherwise in this Agreement in any
and every case where payment for purchase of Securities for the account of
the Trust is made by the Custodian in advance of receipt of the Securities
purchased in the absence of Written Instructions to so pay in advance, the
Custodian shall be absolutely liable to the Trust for such securities to the
same extent as if the securities had been received by the Custodian.
ARTICLE VI
PAYMENT OF DIVIDENDS OR DISTRIBUTIONS
1. The Trust shall furnish to the Custodian a copy of the
resolution of its Board of Trustees, certified by the Secretary, either (i)
setting forth the date of the declaration of any dividend or distribution
in respect of shares of the Trust, the date of payment thereof, the record
date as of which Trust shareholders entitled to payment shall be determined,
the amount payable per share to Trust shareholders of record as of that date
and the total amount to be paid by the Dividend and Transfer Agent of the
Trust on the payment date, or (ii) authorizing the declaration of dividends
and distributions in respect of shares of the Trust on a daily basis and
authorizing the Custodian to rely on Written Instructions or 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 Trust
shareholders entitled to payment shall be determined, the amount payable per
share to Trust shareholders of record as of that date and the total amount
to be paid by the Dividend and Transfer Agent on the payment date.
2. Upon the payment date specified in such resolution, Written
Instructions or Certificate, as the case may be, the Custodian shall arrange
for such payments to be made by the Dividend and Transfer Agent out of
monies held for the account of the Trust.
ARTICLE VII
SALE AND REDEMPTION OF SHARES OF THE TRUST
1. The Custodian shall receive and credit to the account of the
Trust such payments for shares of the Trust issued or sold from time to time
as are received from the distributor for the Trust's shares, from the
Dividend and Transfer Agent of the Trust, or from the Trust.
2. Upon receipt of Written Instructions, the Custodian shall
arrange for payment of redemption proceeds to be made by the Dividend and
Transfer Agent out of the monies held for the account of the Trust in the
total amount specified in the Written Instructions.
3. Upon mutual agreement between the Trust and the Custodian, the
Custodian shall, upon receipt of Written Instructions, make federal funds
available to the Trust as of specified times agreed upon from time to time
by the Trust and the Custodian in the amount of checks received in payment
for Shares of the Trust which are deposited into the Trust's account.
ARTICLE VIII
INDEBTEDNESS
In connection with any borrowings, the Trust will cause to be
delivered to the Custodian by a bank or broker (including the Custodian, if
the borrowing is from the Custodian), requiring Securities as collateral for
such borrowings, a notice or undertaking in the form currently employed by
any such bank or broker setting forth the amount which such bank or broker
will loan to the Trust against delivery of a stated amount of collateral.
The Trust 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
Trust, acting on behalf of the Trust, or other 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 Trust on the borrowing date, and (f) the market value of Securities
collateralizing the loan, including the name of the issuer, the title and
the number of shares or the principal amount of any particular Securities.
The Custodian shall deliver on the borrowing date specified in such
Certificate the specified collateral and the executed promissory note, if
any, against delivery by the lending bank or broker of the total amount of
the loan payable, provided that the same conforms to the total amount
payable as set forth in such Certificate. The Custodian may, at the option
of the lending bank or broker, keep such collateral in its possession, but
such collateral shall be subject to all rights therein given to the lending
bank or broker by virtue of any promissory note, loan agreement or pledge
agreement. The Custodian shall deliver in the manner directed by the Trust
from time to time such Securities as additional collateral as may be
specified in a Certificate to collateralize further any transaction
described in this Article VIII. The Trust 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. In the event that the Trust fails to specify in a
Certificate or Written Instructions the name of the issuer, the title and
number of shares or the principal amount of any particular Securities to be
delivered as collateral by the Custodian, the Custodian shall not be under
any obligation to deliver any Securities. The Custodian may require such
reasonable conditions with respect to such collateral and its dealings with
third-party lenders as it may deem appropriate.
ARTICLE IX
CONCERNING THE CUSTODIAN
1. Except as otherwise provided herein, the Custodian shall not be
liable for any loss, damage, including counsel fees, resulting from its
action or omission to act or otherwise, except for any such loss or damage
arising out of its own negligence, willful misconduct, or breach of this
agreement. The Trust, but only from Trust Assets or insurance purchased by
the Trust with respect to its liabilities hereunder, 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 Trust's duties hereunder or any other action or inaction of the Trust
or its Directors, officers, employees or agents, except such as may arise
from the negligent action, omission, willful misconduct or breach of this
agreement by the Custodian, its directors, officers, employees or agents.
The Custodian shall defend, indemnify and hold harmless the Trust and its
Directors, officers, employees or agents with respect to any loss, claim,
liability or cost (including reasonable attorneys' fees) arising or alleged
to arise from or relating to the Custodian's duties with respect to the
Trust hereunder or any other action or inaction of the Custodian or its
directors, officers, employees, agents, nominees or Subcustodians as to the
Trust, except such as may arise from the negligent action, omission or
willful misconduct of the Trust, its Directors, officers, employees or
agents. The Custodian may, with respect to questions of law, apply for and
obtain the advice and opinion of counsel to the Trust at the expense of the
Trust, or of the Custodian's own counsel at its own expense, 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 to the Trust, and shall
be similarly protected with respect to anything done or omitted by it in
good faith in conformity with advice or opinion of the Custodian's own
counsel, unless counsel to the Trust shall, within a reasonable time after
being notified of legal advice received by the Custodian, have a differing
interpretation of such question of law. The Custodian shall be liable to
the Trust for any proximate loss or damage resulting from the use of the
Book-Entry System or any Depository arising by reason of any negligence,
misfeasance or misconduct on the part of the
Custodian or any of its employees, agents, nominees or Subcustodians but not
for any special, incidental, consequential, or punitive damages; provided,
however, that nothing contained herein shall preclude recovery by the Trust,
on behalf of the Trust, of principal and of interest to the date of recovery
on, Securities or Foreign Securities incorrectly omitted from the Trust's
account or penalties imposed on the Trust, in connection with the Trust, for
any failures to deliver Securities or Foreign Securities.
In any case in which one party hereto may be asked to indemnify the
other or hold the other harmless, the party from whom indemnification is
sought (the "Indemnifying Party") shall be advised of all pertinent facts
concerning the situation in question, and the party claiming a right to
indemnification (the "Indemnified Party") will use reasonable care to
identify and notify the Indemnifying Party promptly concerning any situation
which presents or appears to present a claim for indemnification against the
Indemnifying Party. The Indemnifying Party shall have the option to defend
the Indemnified Party against any claim which may be the subject of the
indemnification, and in the event the Indemnifying Party so elects, such
defense shall be conducted by counsel chosen by the Indemnifying Party and
satisfactory to the Indemnified Party and the Indemnifying Party will so
notify the Indemnified Party and thereupon such Indemnifying Party shall
take over the complete defense of the claim and the Indemnifying Party shall
sustain no further legal or other expenses in such situation for which
indemnification has been sought under this paragraph. The expenses of any
additional counsel retained by the Indemnified Party shall be borne by the
Indemnified Party. In no case shall any party claiming the right to
indemnification confess any claim or make any compromise in any case in
which the other party has been asked to indemnify such party (unless such
confession or compromise is made with such other party's prior written
consent).
The obligations of the parties hereto under this paragraph shall
survive the termination of this Agreement.
2. 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:
(a) The validity of the issue of any Securities purchased by or for
the account of the Trust, the legality of the purchase thereof, or the
propriety of the amount paid therefor;
(b) The legality of the sale of any Securities by or for the account
of the Trust, or the propriety of the amount for which the same are sold;
(c) The legality of the issue or sale of any shares of the Trust,
or the sufficiency of the amount to be received therefor;
(d) The legality of the redemption of any shares of the Trust, or
the propriety of the amount to be paid therefor;
(e) The legality of the declaration or payment of any dividend by
the Trust in respect of shares of the Trust;
(f) The legality of any borrowing by the Trust on behalf of the
Trust, using Securities as collateral;
3. The Custodian shall not be under any duty or obligation to take
action to effect collection of any amount due to the Trust from the Dividend
and Transfer Agent of the Trust nor to take any action to effect payment or
distribution by the Dividend and Transfer Agent of the Trust of any amount
paid by the Custodian to the Dividend and Transfer Agent of the Trust in
accordance with this Agreement.
4. Income due or payable to the Trust with respect to Trust Assets
will be credited to the account of the Trust as follows:
(a) Dividends will be credited on the first business day following
payable date irrespective of collection.
(b) Interest on fixed rate municipal bonds and debt securities
issued or guaranteed as to principal and/or interest by the government of
the United States or agencies or instrumentalities thereof (excluding
securities issued by the Government National Mortgage Association) will be
credited on payable date irrespective of collection.
(c) Interest on fixed rate corporate debt securities will be
credited on the first business day following payable date irrespective of
collection.
(d) Interest on variable and floating rate debt securities and debt
securities issued by the Government National Mortgage Association will be
credited upon the Custodian's receipt of funds.
(e) Proceeds from options will be credited upon the Custodian's
receipt of funds.
5. Notwithstanding paragraph 4 of this Article IX, the Custodian
shall not be under any duty or obligation to take action to effect
collection of any amount, if the Securities or Foreign 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 of reimbursement of its costs and expenses in connection with
any such action or, at the Custodian's option, prepayment.
6. With the consent of the Trust, as evidenced by Written
Instructions, the Custodian may appoint one or more financial or banking
institutions, as Depository or Depositories or as Subcustodian or
Subcustodians, including, but not limited to, banking institutions located
in foreign countries, for Securities, Foreign Securities and monies at any
time owned by the Trust, upon terms and conditions approved in a
Certificate. Current Depository(s) and Subcustodian(s) are noted in
Appendix B. The Custodian shall not act as a custodian of Foreign Securities
of the Trust until the Trust has directed it to so act in Written
Instructions. The Custodian shall not be relieved of any obligation or
liability under this Agreement in connection with the appointment or
activities of such Depositories or Subcustodians. Any
such Subcustodian shall be qualified to serve as such for assets of
investment companies registered under the 1940 Act. If the Custodian
appoints a foreign Subcustodian, the Custodian shall limit the securities
and other assets of the Trust maintained in the custody of any foreign
Subcustodian to Foreign Securities and cash or cash equivalents in such
amounts as the Custodian or the Trust may determine to be reasonably
necessary to effect the Trust's foreign securities transactions. The
Custodian shall identify on its books as belonging to the Trust the Foreign
Securities held by each such foreign Subcustodian. The Custodian shall
promptly forward to the Trust all documents it receives from any
Subcustodian appointed hereunder which are provided to assist directors of
registered investment companies to fulfill their responsibilities under Rule
17f-5 under the 1940 Act. Further, the Custodian shall promptly inform the
Trust in writing if it receives any written statement of the Trust's account
maintained by any Subcustodian which contains an error.
7. 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 Trust are such as properly may be held by the Trust under
the provisions of the Declaration of Trust and the Trust's By-laws.
8. The Custodian shall treat all records and other information
relating to the Trust and the Trust Assets as confidential and shall not
disclose any such records or information to any other person unless (a) the
Trust shall have consented thereto in writing or (b) such disclosure is
compelled by law.
9. The Custodian shall be entitled to receive and the Trust agrees
to pay to the Custodian, for the Trust's account from Trust Assets only,
such compensation as shall be determined pursuant to Appendix C attached
hereto, or as shall be determined pursuant to amendments to such Appendix
agreed to from time to time by the Custodian and the Trust. The Custodian
shall be entitled to charge against any money held by it for the account of
the Trust the amount of any loss, damage, liability or expense, including
counsel fees, for which it shall be entitled to reimbursement under the
provisions of this Agreement as determined by agreement of the Custodian and
the Trust or by the final order of any court or arbitrator having
jurisdiction and as to which all rights of appeal shall have expired. The
expenses which the Custodian may charge against the account of the Trust
include, but are not limited to, the expenses of Subcustodians incurred in
settling transactions involving the purchase and sale of Securities or
Foreign Securities of the Trust.
10. The Custodian shall be entitled to rely upon any Certificate.
The Custodian shall be entitled to rely upon any Oral Instructions and any
Written Instructions actually received by the Custodian pursuant to Article
IV or V hereof. The Trust agrees to forward to the Custodian Written
Instructions from Authorized Persons confirming Oral Instructions in such
manner so that such Written Instructions are received by the Custodian,
whether by hand delivery, telex or otherwise, on the first business day
following the day on which such Oral Instructions are given to the
Custodian. The Trust agrees that the fact that such confirming instructions
are not received by the Custodian shall in no way affect the
validity of the transactions or enforceability of the transactions hereby
authorized by the Trust. The Trust agrees that the Custodian shall incur
no liability to the Trust in acting upon Oral Instructions given to the
Custodian hereunder concerning such transactions.
11. The Custodian will (a) 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 Trust under the 1940 Act, with particular attention to Section 31
thereof and Rules 31a-1 and 31a-2 thereunder and those records are the
property of the Trust, and (b) preserve for the periods prescribed by
applicable Federal statute or regulation all records required to be so
preserved. The books and records of the Custodian shall be open to
inspection and audit at reasonable times and with prior notice by Officers
and auditors employed by the Trust.
12. The Custodian and its Subcustodians shall promptly send to the
Trust, for the account of the Trust, any report received on the systems of
internal accounting control of the Book-Entry System or the Depository and
with such reports on their own systems of internal accounting control as the
Trust may reasonably request from time to time.
13. The Custodian performs only the services of a custodian and
shall have no responsibility for the management, investment or reinvestment
of Securities, Foreign Securities or monies from time to time owned by the
Trust. The Custodian is not a selling agent for shares of the Trust and
performance of its duties as a custodial agent shall not be deemed to be a
recommendation to the Custodian's depositors or others of shares of the
Trust as an investment.
14. Anything to the contrary in their Contract notwithstanding, the
Custodian shall be liable to the Trust for any loss or damage to the Trust
resulting from use of a Subcustodian, Depository or Book-Entry System, by
reason of any negligence, misfeasance or misconduct of the Custodian or any
of its agents, Subcustodians or of any of its or their employees or from
failure of the Custodian or any such agent or Subcustodians to enforce
effectively such rights as it may have against a Subcustodian, the
Depository or Book-Entry System; at the election of the Trust, it shall be
entitled to be subrogated to the rights of the Custodian with respect to any
claim against such Subcustodian, the Depository or Book-Entry System or any
other person which the Custodian may have as a consequence of any such loss
or damage if and to the extent that the Trust has not made whole for any
such loss or damage.
15. The Custodian shall take all reasonable action as the Trust may
from time to time request to obtain favorable opinions from the Trust's
independent accountants with respect to the Trust's activities hereunder in
connection with the preparation of the Trust's Form N-IA, Form N-SAR or
other reports or documents required to be filed by the Trust with the
Securities and Exchange Commission and with respect to any other
requirements of such Commission.
16. The Trust hereby pledges to and grants the Custodian a security
interest in any Securities or other property or assets of the Trust in the
possession of the Custodian to secure the payment of any
liabilities of the Trust to the Custodian, whether acting in its capacity
as Custodian or otherwise, on account of money borrowed from the Custodian.
This pledge is in addition to any other pledge of collateral by the Trust
to the Custodian.
ARTICLE X
TERMINATION
1. 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
Trust, it shall be accompanied by a copy of a resolution of the Board of
Trustees, certified by the Secretary or any Assistant Secretary, electing
to terminate this Agreement and designating a successor custodian or
custodians. In the event such notice is given by the Custodian, the Trust
shall, on or before the termination date, deliver to the Custodian a copy
of a resolution of its Board of Trustees, certified by the Secretary,
designating a successor custodian or custodians to act on behalf of the
Trust. In the absence of such designation by the Trust, 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 monies then owned by the Trust
and held by it as Custodian. Upon termination of this Agreement, the Trust
shall pay to the Custodian on behalf of the Trust such compensation as may
be due as of the date of such termination. The Trust agrees on behalf of
the Trust that the Custodian shall be reimbursed for its reasonable costs
in connection with the termination of this Agreement.
2. If a successor custodian is not designated by the Trust, or by
the Custodian in accordance with the preceding paragraph, or the designated
successor cannot or will not serve, the Trust shall upon the delivery by the
Custodian to the Trust of all Securities (other than Securities held in the
Book-Entry System which cannot be delivered to the Trust) and monies then
owned by the Trust, be deemed to be the custodian for the Trust, 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 Trust to hold
such Securities hereunder in accordance with this Agreement.
ARTICLE XI
MISCELLANEOUS
1. Appendix A sets forth the names and the signatures of all
Authorized Persons. The Trust 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 present Authorized Persons as set forth in the last
delivered Appendix A.
2. 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 Trust or of any
predecessor or successor, either directly or through the Trust 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 Trust Assets,
and that no such personal liability whatever shall attach to, or is or shall
be incurred by, the organizers, shareholders, Officers, Directors of the
Trust or of any predecessor or successor, or any of them as such, because
of the obligations contained in this Agreement or implied therefrom and that
any and all such liability is hereby expressly waived and released by the
Custodian as a condition of, and as a consideration for, the execution of
this Agreement.
3. The obligations set forth in this Agreement as having been made
by the Trust have been made by the Board of Trustees, acting as such
Directors for and on behalf of the Trust, pursuant to the authority vested
in them under the laws of the State of Massachusetts, the Declaration of
Trust and the By-laws of the Trust This Agreement has been executed by
Officers of the Trust as officers, and not individually, and the obligations
contained herein are not binding upon any of the Directors, Officers, agents
or holders of shares, personally, but bind only the Trust and then only to
the extent of Trust Assets.
4. Such provisions of the Prospectus of the Trust 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 Trust.
5. 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 Trust Custody Department, or at
such other place as the Custodian may from time to time designate in writing
6. Any notice or other instrument in writing, authorized or
required by this Agreement to be given to the Trust shall be sufficiently
given when delivered to the Trust or on the second business day following
the time such notice is deposited in the U.S. mail postage prepaid and
addressed to the Trust at its office at 0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000,
Xx. Xxxxx, Xxxxxxxx 00000, or at such other place as the Trust may from time
to time designate in writing.
7. This Agreement with the exception of Appendices A and B 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.
8. 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 Trust or by the
Custodian, and no attempted assignment by the Trust or the Custodian shall
be effective without the written consent of the other party hereto.
9. This Agreement shall be construed in accordance with the laws
of the State of Ohio.
10. 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: Xxxxxxx Investments
/s/ Xxxxx X. Xxxxxxxxx By: /s/ Xxxx X. Xxxxxx
Title: President
ATTEST: Star Bank, N.A.
/s/ X. Xxxxxxxxxx By: /s/ X. X. Xxxxxx
Title: Senior Vice President
APPENDIX A
Board of Trustees
Authorized Persons Specimen Signatures
President: Xxxx X. Xxxxxx
Treasurer: Xxxxx X. Xxxxxxxxx
Senior Vice President: Xxxxxx X. Xxxxx
Vice President: Xxxxxxxx X. Xxxxxxxx
Employees: Xxxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxxx
APPENDIX B
The following Depository(s) and Subcustodian(s) 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)
Exhibit C
Star Bank's Mutual Fund Custody Services
Proposed Fees For the Xxxxxxx Fund Family
On The Aggregate Balance
Market Value Fees: Of All Funds
Based upon Month-end at a rate of:
1.5 Basis Points on the First $700 Million0.00015 $700,000,000
0.75 Basis Points on the Next $500 Million0.000075 $500,000,000
0.60 Basis Points on the Balance 0.00006 $3,000,000,000
I. Market Values used represent total assets as of the July 15, 1994
letter received from Xxxxxxx Funds outlining the proposal
requirements.
II. Any excess earnings credits generated beyond the credits used to
offset monthly Cash Management fees will be allowed to offset up to
50% of your Monthly Domestic Custody fees. Any excess earnings
credits will be carried forward for a period of 12 months. Earnings
credits are based on the average yield on the 91 day U.S. Treasury
Xxxx for the proceeding thirteen weeks less 10% reserve.
III. Star Bank will guarantee the Domestic Custody, Cash Management, XXX
and the Global fee schedules for a period of three years from the
date a contract is signed. The first two years is fixed and the
third year, the total fees will not increase by an amount greater
than 5% or no more than the Consumer Price Index (C.P.I.) in the
third year whichever is less.
IV. The only out-of pocket expenses charged to your account will be
shipping fees or transfer fees.
V. Custody and Cash Management fees are taken monthly.
Exhibit C
Star Bank
Cash Management Enhancements
Monthly Pro Forma II
For
Xxxxxxx Fund Family
SERVICES UNIT PRICE
Account Maintenance 12.00
Checks Paid 0.10
Wires - Incoming 10.00
PC-Wires Outgoing 9.00
Stop Payments 20.00
Balance Reporting 50.00
Cash Concentration Maintenance 50.00
ACH Transfer 0.20
Lockbox Maintenance 55.00
Lockbox Item Processed 0.10
Miscellaneous Lockbox Item 0.10
Checks Deposited 0.065
Deposits 0.37
Deposited Item Returned 5.00
ACH Maintenance 40.00
ACH Credit/Debit Originated 0.08
Data Transmission 110.00
Exhibit C
Star Bank
Fee Schedule For
XXX Turnkey Services For
Xxxxxxx Fund Family
Annual Charge Per/
XXX Shareholder/Per Account
I. Turnkey XXX Services $10
1. Custody of Each Original
XXX Shareholder Agreement
2. XXX Plan Document Set
(Turnkey package)
3. Toll Free Technical Support Line
4. Account Maintenance Reports For:
--Xxxxxxx Funds
--XXX Shareholders
5. Financial Innovator Retirement
Plan Newsletter
Exhibit C
Star Banks
Third Party Access Compensation Schedule
For
Xxxxxxx Funds
Third Party access is available within two (2) weeks and requires dial-up
software which will allow your organization to access its Star Bank account
from any location.
Requirements and Expenses
There will be a one time expense
for the purchase of software from
SEI which includes internal password
control and ability to dial a local
IBM Information Systems number.
(Generally anywhere in the
continental U.S.A.) $225.00 (waived for
initial installation)
Ongoing Expenses
Telephone Connect time $.35/minute
