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Exhibit 8
CUSTODY AGREEMENT
Agreement made this 5th day of August, 1983, between Gradison Growth
Trust, a business trust organized and existing under the laws of the State of
Ohio, having its office at The 580 Building, Cincinnati, Ohio (hereinafter
called the "Trust"), and The First National Bank of Cincinnati, a national
banking association, having its principal office and place or business at First
National bank Center, 000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx (hereinafter called
the "Custodian").
WITNESSETH
that for and in consideration of the mutual promises hereinafter set forth 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 be deemed to include the Senior Vice
President, the Treasurer, 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.
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 the 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 actually
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received by the Custodian and signed on behalf of the Trust by an Officer of the
Trust.
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, provided the Custodian has
received a certified copy of a resolution of the Trust's Board of Trustees
specifically approving deposits in OTC. The term "Depository" shall further mean
and include any other person authorized to act as a depository under the
Investment Company Act of 1940, its successor or successors and its nominee or
nominees, specifically identified in a certified copy of a resolution of the
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Trust's Board or Trustees specifically approving deposits therein by the
Custodian.
5. "Dividend and Transfer Agent" shall mean the Trust or such other
Dividend and Transfer Agent active, from time to time, in such capacity pursuant
to a written Agreement with the Trust. The Trust shall immediately report to the
Custodian in writing any change in the Dividend and Transfer Agent.
6. "Fund" or "Funds" shall mean the Established Growth Fund of the
Trust or the Emerging Growth Fund of the Trust, or both or them as appropriate.
7. "Money Market Security" shall be deemed to include, without
limitation, obligations issued, or guaranteed or insured 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 and bank time deposits) of domestic banks that
are members of Federal Deposit Insurance Corporation; obligations (including
certificates or deposit and demand and time deposits) of savings and loan
associations that are members of the Federal Savings and Loan Insurance
Corporation; 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; and repurchase agreements relating to
the above.
8. "Officers" shall be deemed to include the Chairman, the President,
any Senior Vice President, any Vice President, any Assistant Vice President, the
Secretary, the Treasurer, any Assistant Treasurer, or any other person or
persons duly authorized by the Board of Trustees of the Trust to execute any
Certificate, instruction, notice or other instrument on behalf of the Trust and
listed in the Certificate annexed hereto as Appendix B or such other
Certificates as may be received by the Custodian from time to time.
9. "Oral Instructions" shall mean oral instructions actually received
by the Custodian from an Authorized Person or from a person believed in good
faith by the Custodian to be an Authorized Person.
10. "Security or Securities" shall mean Money Market Securities, common
stocks, bonds, debentures, notes, and other corporate securities convertible
into common stock, 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.
11. Written Instructions" shall mean communications actually received
by the Custodian from an Authorized Person
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or from a person believed in good faith by the Custodian to be an Authorized
Person in writing or by telex or any other such system whereby the receiver of
such communications is able to verify by codes or otherwise with reasonable
degree of certainty the authenticity of the sender or such communication.
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ARTICLE II
APPOINTMENT OF CUSTODIAN
1. The Trust hereby constitutes and appoints the Custodian as custodian
of all of the Securities and moneys at any time owned by the Trust during the
period of this Agreement.
2. The Custodian hereby accepts appointment as such custodian and
agrees to perform the duties thereof as hereinafter set forth.
ARTICLE III
CUSTODY OF CASH AND SECURITIES
1. The Trust will deliver or cause to be delivered to the Custodian all
Securities and all moneys owned by it, including cash received for the issuance
of its shares, at any time during the period of this Agreement. As part of this
obligation, the Trust will designate or cause to be designated to the Custodian
whether such Securities and moneys are to be credited to the account or accounts
for the Trust's Established Growth Fund or the Trust's Emerging Growth Fund. The
Custodian will not be responsible for such Securities and such moneys until
actually received by it. The Custodian will be entitled to reverse any credits
made on the Trust's behalf where such credits have been previously made and
moneys are not finally collected. Prior to the deposit of any Securities of the
Trust in the Book-Entry System, including any deposit in connection with the
settlement of a purchase or sale, there shall be delivered to the Custodian by
the Trust a certified resolution of the Board of Trustees of the Trust
specifically approving such deposits by the Custodian on behalf of the Trust in
the Book-Entry System. The Custodian shall be entitled to rely on such
Certificate until a Certificate to the contrary is delivered to the Custodian.
Prior to a deposit of any Securities of the Trust in the Depository, there shall
be delivered to the Custodian by the Trust a certified resolution of the Board
of Trustees of the Trust specifically approving such deposits by the Custodian
on behalf of the Trust. The Custodian shall be entitled to rely on such
Certificate until a Certificate to the contrary is delivered to the Custodian
and to deposit in the Depository all Securities eligible for deposit therein and
to utilize the Depository to the extent possible in connection with its
performance hereunder, including, without limitation, in connection with
settlements of purchases and
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sales of Securities, and deliveries and returns of Securities collateral.
Securities and moneys of the Trust 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 credit to separate accounts in the name of
either the Trust's Established Growth Fund or the Trust's Emerging Growth Fund
all moneys received by it for the account of the respective Funds of the Trust,
and shall disburse the same only:
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(a) In payment for Securities purchased, as provided in Article IV
hereof;
(b) In payment of dividends or distributions, as provided in Article V
hereof;
(c) In payment of original issue or other taxes, as provided in Article
VI hereof;
(d) In payment for shares or beneficial interest of the Trust's Funds
redeemed by it, as provided in Article VI hereof;
(e) Pursuant to Certificates directing payment and setting forth (i)
the name and address of the person to whom the payment is to be made, the amount
or such payment and the purpose for which payment is to be made (the Custodian
not being required to question such direction) or (ii) if reserve requirements
are established for the Trust by law or by valid regulation, directing the
Custodian to deposit a specified amount of collected funds in the form of U.S.
dollars at a specified Federal Reserve Bank and stating the purpose of such
deposit; and
(f) In payment of the fees and in reimbursement of the expenses and
liabilities of the Custodian, as provided in Article VIII hereof.
3. Promptly after the close of business on each day the Custodian shall
furnish the Trust with confirmations and a summary of all transfers to or from
the account of the Trust's Funds during said day. Where Securities are
transferred to the account of the Trust's Funds, the Custodian shall also by
book-entry or otherwise identify as belonging to the Trust (and allocable to a
particular Fund of 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 the Depository.
At least monthly and from time to time, the Custodian shall furnish the Trust
with a detailed statement of the Securities and moneys held for the Trust's
Funds under this Agreement.
4. All Securities held for the Trust's Funds, 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's Funds may be registered in the name of the Trust, in the
name of the appropriate Fund of the Trust, in
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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 the 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 the Depository any Securities which it may hold for the account of the
Trust's Funds and which may from time to time be registered in the name of the
Trust or a particular Fund of the Trust. The Custodian shall hold all such
Securities which are not held in the Book-Entry System or the Depository in
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separate accounts in the name of the Trust's Funds physically segregated at all
times from those of any other person or persons.
5. Unless otherwise instructed to the contrary by a Certificate, the
Custodian by itself, or through the use or the Book Entry System or the
Depository with respect to Securities therein deposited, shall with respect to
all Securities held for the Trust's Funds in accordance with this Agreement:
(a) Collect all dividends, income and other amounts due or payable;
(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 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 accounts of the respective
Funds of the Trust all rights and similar securities issued with respect to any
Securities held by the Custodian hereunder.
6. 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's Funds 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 Trust's Funds to any protective
committee, reorganization committee or other
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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 order to be for the purpose or
effectuating any duly authorized plan of liquidation, reorganization, merger,
consolidation or recapitalization of the Trust.
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ARTICLE IV
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, and (ii) with
respect to each purchase or Money Market Securities, Written Instructions, a
Certificate or Oral Instructions, specifying with respect to each such purchase:
(a) the name or the issuer and the title of the Securities, (b) the number of
shares or principal amount purchased, together with accrued dividends or
interest, if any, (c) the date of purchase and settlement, (d) the purchase
price per unit, (e) the total amount payable upon such purchase, (f) the name or
the person from whom or the broker through whom the purchase was made, and (g)
the Fund of the Trust for which the Securities were purchased. The Custodian
shall upon receipt of Securities purchased by or for the Trust pay out of the
moneys held for the account of the appropriate Fund 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, the
Trust shall deliver to the Custodian (i) with respect to each sale of Securities
which are not Money Market Securities, a Certificate, 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 number of shares or principal
amount sold, together with accrued dividends or 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, (f) the name of the broker through whom or the person to whom
the sale was made, and (g) the Fund of the Trust from which the Securities were
sold. The Custodian shall deliver the Securities upon receipt of the total
amount payable to the Trust upon such sale, 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.
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Article V
PAYMENT OF DIVIDEND OR DISTRIBUTIONS
1. The Trust shall furnish to the Custodian a copy of the
resolution of the Board of Trustees, certified by the Secretary or any Assistant
Secretary, either (i) setting forth the date of the declaration or a dividend or
distribution relating to one or both of the Trust's Funds, the date of payment
thereof, the record date as of which shareholders entitled to payment shall be
determined, the amount payable per share to the shareholders of record as of
that date and the total amount to be paid by the Dividend and Transfer Agent
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of the Trust on the payment date, or (ii) authorizing the declaration of
dividends and distributions on a specified periodic basis and authorizing the
Custodian to rely on Oral Instructions, Written Instructions or a Certificate
setting forth the date of the declaration or such dividend or distribution, the
date of payment thereof, the record date as of which shareholders entitled to
payment shall be determined, the amount payable per share to the 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 any such resolution, Oral
Instructions, Written Instructions or Certificates, as the case may be, the
Custodian shall arrange for such payments to be made by the Dividend and
Transfer Agent out of moneys held for the account of the appropriate Fund of the
Trust, or for such payments to be reinvested for the accounts of the
shareholders in additional shares of the Trust's Funds in accordance with the
then current reinvestment procedures of the Trust.
ARTICLE VI
SALE AND REDEMPTION OF SHARES OF BENEFICIAL INTEREST OF THE
TRUST
1. Whenever a sale of shares of beneficial interest of a Fund of the
Trust shall occur, the Trust shall promptly advise the Custodian by a Written
Instruction of the affected Fund, the number of shares sold, trade date, and
price, and the amount of money received or to be received by the Custodian for
the sale of such shares. The Custodian understands and agrees that the Written
Instruction may be furnished subsequent to the sale of shares of beneficial
interest of the Trust's Funds.
2. Upon receipt of such money from the Dividend and Transfer Agent, the
Trust, or any of the Trust's agents, the Custodian shall credit such money to
the account of the appropriate Fund of the Trust.
3. Upon issuance of any shares of beneficial interest of the Trust's
Funds in accordance with the foregoing provisions of this Article, the Custodian
shall pay, out of the money held for the account of the appropriate Fund of the
Trust, all original issue or other taxes required to be paid by the Trust in
connection with such issuance upon the receipt of a Written Instruction
specifying the amount to be paid.
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4. Whenever any shares of beneficial interest of the Trust's Funds are
redeemed, the Trust or its Dividend and Transfer Agent shall promptly advise the
Custodian by Written Instructions of (a) the affected Fund; (b) the number of
shares of beneficial interest redeemed; and (c) the amount to be paid for the
shares of beneficial interest redeemed. The Custodian further understands that,
if the Trust is not acting as the Dividend and Transfer Agent, the information
contained in such Written Instructions will be derived from redemptions of
shares of beneficial interest of the Trust's Funds as reported by the Trust to
the Dividend and Transfer Agent.
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5. Upon receipt from the Dividend and Transfer Agent of any Written
Instructions setting forth the number of shares of beneficial interest to be
redeemed and advice that such shares are valid and in good form for redemption,
the Custodian shall arrange for payment of redemption proceeds to be made by the
Dividend and Transfer Agent out of the moneys held for the account of the
appropriate Fund of the Trust in the total amount specified as sec forth in the
Written Instructions furnished pursuant to paragraph 4 of this Article.
ARTICLE VII
INDEBTEDNESS
The Trust will cause to be delivered to the Custodian by any bank
(including the Custodian, if the borrowing is from the Custodian) from which it
borrows money for temporary or emergency purposes using Securities as collateral
for such borrowings, a notice or undertaking in the form currently employed by
any such bank setting forth the amount which such bank 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, (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, 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, (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, and (g) a statement that such
loan for temporary or emergency purposes is in conformance with the Investment
Company Act of 1940 and the Trust's then current Prospectus. The Custodian shall
deliver on the borrowing date specified in a Certificate the specified
collateral and the executed promissory note, if any, against delivery by the
lending bank of the total amount of the loan payable, provided that the same
conforms to the total amount payable as set forth in the Certificate. The
Custodian may, at the option of the lending bank, keep such collateral in its
possession, but such collateral shall be subject to all rights therein given the
lending bank by virtue of any promissory note or loan agreement. The Custodian
shall deliver in the manner directed by the Trust from time to time such
Securities as additional
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collateral as may be specified in a Certificate to collateralize further any
transaction described in this paragraph. 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
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.
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ARTICLE VIII
THE CUSTODIAN
1. Except as otherwise provided herein, neither the Custodian
nor its nominee shall be liable for any loss or 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 or willful misconduct. The
Trust 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 trustees, officers, employees or agents, except such as may arise
from the negligent action, omission or willful misconduct of the Custodian, its
directors, officers, employees or agents. The Custodian shall defend, indemnify
and hold harmless the Trust and its trustees, 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
hereunder or any other action or inaction of the Custodian or its directors,
officers, employees or agents, except such as may arise from the negligent
action, omission or willful misconduct of the Trust, its trustees, 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 its 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 its own counsel unless counsel to the Trust shall have a
differing or contrary interpretation of such question of law, or unless counsel
to the Trust shall fail to respond within a reasonable period of time to the
request of the Custodian for legal advice. 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 or agents but
not for any special, incidental, consequential or punitive damages; provided,
however, that nothing contained herein shall preclude recovery by the Trust of
principal or shares constituting Securities, and dividends and interest to the
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date of recovery on Securities, incorrectly omitted from any account for the
Trust's Funds or penalties imposed on the Trust for any failure to deliver
Securities.
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 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
Trust, or the propriety of the amount for which the same are sold;
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(c) The legality of the issue or sale of any shares of
beneficial interest of the Trust's Funds, or the sufficiency of the amount to be
received therefor;
(d) The legality of the redemption of any shares or beneficial
interest of the Trust's Funds or the propriety or the amount to be paid
therefor;
(e) The legality of the declaration or payment or any dividend
by the Trust;
(f) The legality of any borrowing by the Trust using
Securities as collateral;
(g) The sufficiency of any deposit made pursuant to a
Certificate described in paragraph 2(e) of Article III herein; or
(h) The genuineness of any Certificate, Written Instructions
or other writing herein described.
3. The Custodian shall not be liable for any money or
collected funds in U.S. dollars deposited in a Federal Reserve Bank in
accordance with a Certificate described in paragraph 2(e) of Article III herein,
nor be liable for or considered to be the Custodian of any money, whether or not
represented by any check, draft, or other instrument for the payment of money,
received by it on behalf of the Trust until the Custodian actually receives and
collects such money directly or by the final crediting of the appropriate
account representing the Trust's interest at the Book-Entry System or the
Depository.
4. 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 arranged by the Custodian to be paid by the Dividend and Transfer Agent
or the Trust-in accordance with this Agreement.
5. 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 of
reimbursement of its costs and
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expenses in connection with any such action or, at the Custodian's option,
prepayment.
6. The Custodian may appoint one or more banking institutions,
including, but not limited to, banking institutions located in foreign
countries, as Sub-Custodian or Sub-Custodians of Securities and moneys at any
time owned by the Trust, upon terms and conditions approved in a Certificate.
The Custodian shall not be relieved of any obligation or liability under this
Agreement in connection with the appointment or activities of such
Sub-custodians.
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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's Funds are such as properly may be held by the Trust under the
provisions of its Declaration of Trust.
8. The Custodian shall be entitled to receive and the Trust agrees to
pay to the Custodian, as relates to each Fund of the Trust, such compensation as
shall be set forth in Appendix C attached hereto, or as shall be set forth in
amendments to such Appendix approved by the Custodian and the Trust. With
respect to each Fund, the Custodian may charge such compensation and any
expenses incurred by the Custodian in the performance of its duties pursuant to
such Appendix C against any money held by it for the respective account or that
Fund of the Trust. The Custodian shall also be entitled to charge against any
money held by it for the respective accounts of the Trust's Funds the amount of
any loss, damage, liability or expense, including counsel fees, which relates to
that Fund and for which it shall be entitled to reimbursement under the
provisions of this Agreement. The expenses which the Custodian may charge
against the respective accounts of the Trust's Funds include, but are not
limited to, the expenses of Sub-Custodians incurred in settling transactions
involving the purchase and sale of Securities of the Trust.
9. The Custodian shall be entitled to rely upon any
Certificate, notice or other instrument in writing received by the Custodian and
believed in good faith by the Custodian to be a 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 an Authorized
Person 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 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 provided such instructions are believed in good faith to have
been received from an Authorized Person.
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10. 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.
11. The Custodian shall provide the Trust with any report obtained by
the Custodian on the system of internal accounting control of the Book-Entry
System or the Depository and with such reports on its own systems of internal
accounting control as the Trust may reasonably request from time to time.
12. 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 Trust. The Custodian is not a selling
agent for shares of beneficial interest of the Trust's Funds and performance of
its duties as a custodial agent shall not be deemed to be a
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recommendation to the Custodian's depositors or others of shares of beneficial
interest of the Trust's Funds as an investment.
ARTICLE IX
TERMINATION
1. Either of the parties hereto may terminate this Agreement, with
respect to both Funds or either Fund, 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 or giving of such notice. In
the event such notice is given by the Trust, it shall be accompanied by a copy
of a resolution of the Board of Trustees of the Trust, certified by the
Secretary or any Assistant Secretary, electing to terminate this Agreement in
whole or in part and designating a successor custodian or custodians, each of
which shall be a bank or trust company having not less than $2,000,000 aggregate
capital, surplus and undivided profits. 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 or any Assistant Secretary, designating a successor custodian or
custodians. 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 $2,000,000 aggregate capital, surplus, and undivided profits. Upon
the date set forth in such notice, this Agreement shall terminate as to the Fund
or Funds designated, and the Custodian shall upon receipt of a notice of
acceptance by the successor custodian on that date deliver directly to the
successor custodian all Securities and moneys then owned by the Trust and held
by it as Custodian for the account of the affected Trust Fund or Funds, after
deducting all fees, expenses and other amounts for the payment or reimbursement
of which it shall then be entitled.
2. If a successor custodian is not designated by the Trust or the
Custodian in accordance with the preceding paragraph, or the designated
successor cannot or will not serve, the Trust shall upon the date specified in
the notice of termination of this Agreement and 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 moneys then owned
by the Trust
24
and held for the account of the affected Trust Fund or Funds, other than moneys
deposited with a Federal Reserve Bank pursuant to a Certificate described in
paragraph 2(e) of Article III, be deemed to be its own custodian and the
Custodian shall thereby be relieved of all duties and responsibilities pursuant
to this Agreement as relates to the affected Trust Fund or Funds, 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.
25
ARTICLE X
MISCELLANEOUS
1. Annexed hereto as Appendix A is a Certificate signed by present
Officers or the Trust, setting forth the names and the signatures of the present
Authorized Persons. The Trust agrees to furnish to the Custodian a new
Certificate in similar form in the event that any such present Authorized Person
ceases to be an Authorized Person or in the event that other or additional
Authorized Persons are elected or appointed. Until such new Certificate 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 Certificate.
2. Annexed hereto as Appendix B is a Certificate signed by present
Officers of the Trust, setting forth the names and the signatures of the present
Officers of the Trust. The Trust agrees to furnish to the Custodian a new
Certificate in similar form in the event any such present Officer ceases to be
an Officer of the Trust, or in the event that other or additional Officers are
elected or appointed. Until such new Certificate shall be received, the
Custodian shall be fully protected in acting under the provisions of this
Agreement upon the signatures of the Officers as set forth in the last delivered
Certificate.
3. No recourse under any obligation of this Agreement or for any claim
based thereon shall be had against any organizer, shareholder, Officer, Trustee,
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 by 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 Trust property, and that no such
personal liability whatever shall attach to, or is or shall be incurred by, the
organizers, shareholders, Officers, Trustees 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.
26
4. The obligations set forth in this Agreement as having been made by
the Trust have been made by the Trustees of the Trust acting as such Trustees
pursuant to the authority vested in them under the laws of the State of Ohio and
the First Amended Declaration of Trust dated July 27, 1983 of the Trust. This
Agreement has been executed by Officers of the Trust as officers under the First
Amended Declaration of Trust, 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 trust estate of the Trust, as
provided in the First Amended Declaration of Trust.
5. Such provisions of the Prospectus of the Trust and any other
documents (including advertising material) specifically mentioning the Custodian
shall be reviewed with the Custodian by the Trust.
27
6. 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 First
National Bank Center, 000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000, attention
Corporate Trust Services Department, or at such other place as the Custodian may
from time to time designate in writing.
7. Any notice or other instrument in writing, authorized or
required by this Agreement to be given to the Trust shall be sufficiently given
or addressed to the Trust and mailed or delivered to it at its office at The 580
Building, Cincinnati, Ohio 45202 or at such other place as the Trust may from
time to time designate in writing.
8. This Agreement 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 Trust.
9. 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 and no
attempted assignment by the Trust shall be effective without the written consent
of the Custodian, or by the Custodian without the written consent of the Trust,
authorized or approved by a resolution of its Board of Trustees.
10. This Agreement shall be construed in accordance with the
laws of the State of Ohio.
11. 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, "hereunto duly
authorized, as of the day and year first above written.
ATTEST GRADISON GROWTH TRUST
/s/ Xxxxxx Xxxxxx By:
THE FIRST NATIONAL BANK OF CINCINNATI
By:
28
CERTIFICATION OF RESOLUTIONS
This is to certify that the Board of Trustees of Gradison
Growth Trust, on July 27, 1983, upon motion duly made, seconded, and unanimously
carried:
RESOLVED, that the following officers of the Trust and other persons be
and are hereby authorized to (i) sign on behalf of the Trust,
authorizations, instructions, certifications, approvals or other
written Instruction, (ii) to give instructions by telex or any other
such system whereby the receiver of such communications is able to
verify by codes or otherwise with a reasonable degree of certainty the
authenticity of the sender of such communication and (iii) and to give
Oral Instructions to The First National Bank of Cincinnati (the
"Bank"), Custodian of the Trust under a certain Custody Agreement
between the Trust and the Bank:
1. Xxxxxx X. Xxxxxx 4. Xxxxxx X. Xxxxxx
2. Xxxxxxx X. Xxxxxxx 5. Xxxxxxx Xxxxxx
3. Xxxx X. Xxxxxx 6. Xxxxxx Xxxxxxx
7. Xxxxxx Xxxxx
RESOLVED, that pursuant to the provisions of
subsection (d) of 17f4 under the Investment Company Act of 1940, The
First National Bank of Cincinnati, as Custodian of the portfolio
securities of the Trust, be and is hereby authorized to use the Federal
Reserve Book-Entry Deposit System for deposit of Trust securities
representing obligations of the United States, and to use the
Depository Trust Corporation, such use to be in complete accordance
with the provisions of said subsection of said Rule; and
RESOLVED, that pursuant to the terms of the Custody
Agreement to be entered into between the Trust and The First National
Bank of Cincinnati, Manufacturers Hanover Trust of New York be and is
hereby selected to serve as Sub-custodian of the Trust.
In Witness Whereof, I have set my official hand, in
behalf of the Trust, this 5th day of August, 1983.
s/s Xxxxxx Xxxxxx, Secretary
Growth Trust
29
Appendix A to Custody Agreement Between First National Bank of
Cincinnati and Gradison Growth Trust.
Certificate Naming "Authorized Persons" as defined under
Article I, Paragraph 1
The following persons shall be considered "authorized
persons":
1. Xxxxxx X. Xxxxxx
2. Xxxxxxx X. Xxxxxxx, Xx.
3. Xxxx X. Xxxxxx
4. Xxxxxxx X. Xxxxxx
5. Xxxxxx X. Xxxxx
6. Xxxxxx X. Xxxxxxx
7. Xxxxxx X. Xxxxxx
Dated: 8/5/83 Xxxxxxx X. Xxxxxxx, Xx.
President
00
Xxxxxxxx X to Custody Agreement Between First National Bank of Cincinnati and
Gradison Growth Trust.
Certificate Naming Present "Officers" of the Trust as defined under Article I,
Paragraph 8:
1. Xxxxxx X. Xxxxxx, Chairman of the Board
2. Xxxxxxx X. Xxxxxxx, President.
3. Xxxx X. Xxxxxx, Senior Vice President
4 Xxxxxxx X. Xxxxxx, Vice President
5. Xxxxxx X. Xxxxx, Vice President
6. Xxxxxx X. Xxxxxxx, Assistant Vice President
7. Xxxxxx X. Xxxxxx, Secretary/Treasurer
Dated: 8/5/83 Xxxxxxx X. Xxxxxxx, Xx.
President
31
APPENDIX C
The Custodian shall receive from the Trust compensation for its
services rendered under the Custody Agreement computed at the following annual
rates and in the following manner:
$400 per $1,000,000 on first $l00,000,000
$300 per $1,000,000 on next $100,000,000
$250 per $1,000,000 on next $l00,000,000
$200 per $l,000,000 on next $100,000,000
$150 per $1,000,000 on next $100,000,000
$50 per $1,000,000 on the balance over $500,000,000
Such compensation is to be computed on the average daily balance net
asset value of the Trust each month from the daily net asset values supplied to
the Custodian by the Trust, and is payable monthly out of the respective
accounts of the Funds of the Trust based upon their respective net asset values.
Further, the Custodian is to be reimbursed by the Trust for all out-of-pocket
expenses, including, but not limited to, postage, insurance, long distance
telephone charges, and the fees and expenses of the New York Subcustodian Bank.
Such reimbursement shall be made on a monthly basis.
