CUSTODY AGREEMENT
AGREEMENT, dated as of June 27, 2000 between VINTAGE MUTUAL FUNDS, INC., a
corporation organized and existing under the laws of the State of Maryland
having its principal office and place of business at 0000 Xxxxx Xxxxxx, Xxx
Xxxxxx, Xxxx 00000-0000 (the "Fund") and The Bank of New York, a New York
corporation authorized to do a banking business having its principal office and
place of business at Xxx Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Custodian").
W I T N E S S E T H:
that for and in consideration of the mutual premises hereinafter set forth the
Fund and Custodian agree as follows:
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words shall have the
meanings set forth below:
1. "Authorized Person" shall be any person, whether or not an officer or
employee of the Fund, duly authorized by the Fund's board to execute any
Certificate or to give any Oral Instruction with respect to one or more
Accounts, such persons to be designated in a Certificate annexed hereto as
Schedule I hereto or such other Certificate as may be received by Custodian
from time to time.
2. "BNY Affiliate" shall mean any office, branch or subsidiary of The Bank of
New York Company, Inc.
3. "Book-Entry System" shall mean the Federal Reserve/Treasury book-entry
system for receiving and delivering securities, its successors and
nominees.
4. "Business Day" shall mean any day on which Custodian and relevant
Depositories are open for business.
5. "Certificate" shall mean any notice, instruction, or other instrument in
writing, authorized or required by this Agreement to be given to Custodian,
which is actually received by Custodian by letter or facsimile transmission
and signed on behalf of the Fund by an Authorized Person or a person
reasonably believed by Custodian to be an Authorized Person.
6. "Composite Currency Unit" shall mean the Euro or any other composite
currency unit consisting of the aggregate of specified amounts of specified
currencies, as such unit may be constituted from time to time.
7. "Compulsory Depository" shall mean any Foreign Depository the use of which
is mandatory by law or regulation, or because securities cannot be
withdrawn from such Foreign Depository, or because maintaining securities
outside such Foreign Depository is not consistent with prevailing custodial
practices in the relevant market.
8. "Depository" shall include (a) the Book-Entry System, (b) the Depository
Trust Company, (c) any other clearing agency or securities depository
registered with the Securities and Exchange Commission identified to the
Fund from time to time, and (d) the respective successors and nominees of
the foregoing.
9. "Foreign Depository" shall mean (a) Euroclear, (b) Clearstream Banking,
societe anonyme, (c) any Compulsory Depository, (d) any other security
depository or clearing agency located outside the United States that acts
as a system for the central handling of securities identified to the Fund
from time to time, and (e) the respective successors and nominees of the
foregoing.
10. "Instructions" shall mean communications transmitted by electronic or
telecommunications media, including S.W.I.F.T., computer-to-computer
interface, or dedicated transmission lines.
11. "Oral Instructions" shall mean verbal instructions received by Custodian
from an Authorized Person or from a person reasonably believed by Custodian
to be an Authorized Person.
12. "Series" shall mean the various portfolios, if any, of the Fund listed on
Schedule II hereto, and if none are listed references to Series shall be
references to the Fund.
13. "Securities" shall include, without limitation, any common stock and other
equity securities, bonds, debentures and other debt securities, notes,
mortgages or other obligations, and any instruments representing rights to
receive, purchase, or subscribe for the same, or representing any other
rights or interests therein (whether represented by a certificate or held
in a Depository or by a Subcustodian).
14. "Subcustodian" shall mean a bank (including any branch thereof) or other
financial institution (other than a Foreign Depository) located outside the
U.S. which is utilized by Custodian in connection with the purchase, sale
or custody of Securities hereunder and identified to the Fund from time to
time, and their respective successors and nominees.
ARTICLE II
APPOINTMENT OF CUSTODIAN; ACCOUNTS;
REPRESENTATIONS, WARRANTIES, AND COVENANTS
1. (a) The Fund hereby appoints Custodian as custodian of all Securities and
cash at any time delivered to Custodian during the term of this Agreement,
and authorizes Custodian to hold Securities in registered form in its name
or the name of its nominees. Custodian hereby accepts such appointment and
agrees to establish and maintain one or more securities accounts and cash
accounts for each Series in which Custodian will hold Securities and cash
as provided herein. Custodian shall maintain books and records segregating
the assets of each Series from the assets of any other Series. Such
accounts (each, an "Account"; collectively, the "Accounts") shall be in the
name of the Fund.
(b) Custodian may from time to time establish on its books and records such
sub-accounts within each Account as the Fund and Custodian may agree upon
(each a "Special Account"), and Custodian shall reflect therein such assets
as the Fund may specify in a Certificate or Instructions.
(c) Custodian may from time to time establish pursuant to a written agreement
with and for the benefit of a broker, dealer, future commission merchant or
other third party identified in a Certificate or Instructions such accounts
on such terms and conditions as the Fund and Custodian shall agree, and
Custodian shall transfer to such account such Securities and money as the
Fund may specify in a Certificate or Instructions.
2. The Fund hereby represents and warrants, which representations and
warranties shall be continuing and shall be deemed to be reaffirmed upon
each delivery of a Certificate or each giving of Oral Instructions or
Instructions by the Fund, that:
(a) It is duly organized and existing under the laws of the jurisdiction of its
organization, with full power to carry on its business as now conducted, to
enter into this Agreement, and to perform its obligations hereunder;
(b) This Agreement has been duly authorized, executed and delivered by the
Fund, approved by a resolution of its board, constitutes a valid and
legally binding obligation of the Fund, enforceable in accordance with its
terms, and there is no statute, regulation, rule, order or judgment binding
on it, and no provision of its charter or by-laws, nor of any mortgage,
indenture, credit agreement or other contract binding on it or affecting
its property, which would prohibit its execution or performance of this
Agreement;
(c) It is conducting its business in substantial compliance with all applicable
laws and requirements, both state and federal, and has obtained all
regulatory licenses, approvals and consents necessary to carry on its
business as now conducted;
(d) It will not use the services provided by Custodian hereunder in any manner
that is, or will result in, a violation of any law, rule or regulation
applicable to the Fund;
(e) Its board or its foreign custody manager, as defined in Rule 17f-5 under
the Investment Company Act of 1940, as amended (the "'40 Act"), has
determined that use of each Subcustodian (including any Replacement
Custodian), each Depository, and each Foreign Depository which Custodian or
any Subcustodian is authorized to utilize in accordance with Section 1(a)
of Article III hereof, satisfies the applicable requirements of the '40 Act
and Rules 17f-4 or 17f-5 thereunder, as the case may be;
(f) It is fully informed of the protections and risks associated with various
methods of transmitting Instructions and Oral Instructions and delivering
Certificates to Custodian, understands that there may be more secure
methods of transmitting or delivering the same than the methods selected by
the Fund, agrees that the security procedures (if any) to be utilized
provide a commercially reasonable degree of protection in light of its
particular needs and circumstances, and acknowledges and agrees that
Instructions need not be reviewed by Custodian, may conclusively be
presumed by Custodian to have been given by person(s) duly authorized, and
may be acted upon as given;
(g) It shall manage its borrowings, including, without limitation, any advance
or overdraft (including any day-light overdraft) in the Accounts, so that
the aggregate of its total borrowings for each Series does not exceed the
amount such Series is permitted to borrow under the '40 Act;
(h) Its transmission or giving of, and Custodian acting upon, Certificates,
Instructions, or Oral Instructions pursuant to this Agreement shall at all
times comply with the '40 Act;
(i) It shall impose and maintain restrictions on the destinations to which cash
may be disbursed by Instructions to ensure that each disbursement is for a
proper purpose; and
(j) It has the right to make the pledge and grant the security interest and
security entitlement to Custodian contained in Section 1 of Article V
hereof, free of any right of redemption or prior claim of any other person
or entity, such pledge and such grants shall have a first priority subject
to no setoffs, counterclaims, or other liens or grants prior to or on a
parity therewith, and it shall take such additional steps as Custodian may
require to assure such priority.
3. The Fund hereby covenants that it shall from time to time complete and
execute and deliver to Custodian upon Custodian's request a Form FR U-1 (or
successor form) whenever the Fund borrows from Custodian any money to be
used for the purchase or carrying of margin stock as defined in Federal
Reserve Regulation U.
ARTICLE III
CUSTODY AND RELATED SERVICES
1. (a) Subject to the terms hereof, the Fund hereby authorizes Custodian to
hold any Securities received by it from time to time for the Fund's
account. Custodian shall be entitled to utilize Depositories, Foreign
Depositories and Subcustodians to the extent possible in connection with
its performance hereunder. Securities and cash held in a Depository or
Foreign Depository will be held subject to the rules, terms and conditions
of such entity. Securities and cash held through Subcustodians shall be
held subject to the terms and conditions of Custodian's agreements with
such Subcustodians. Subcustodians may be authorized to hold Securities in
Foreign Depositories in which such Subcustodians participate. Unless
otherwise required by local law or practice or a particular subcustodian
agreement, Securities deposited with a Subcustodian or a Depository will be
held in a commingled account, in the name of Custodian, holding only
Securities held by Custodian as custodian for its customers. Custodian
shall identify on its books and records the Securities and cash belonging
to the Fund, whether held directly or indirectly through Depositories,
Foreign Depositories, or Subcustodians. Custodian shall, directly or
indirectly through Subcustodians, Depositories, or Foreign Depositories,
endeavor, to the extent feasible, to hold Securities in the country or
other jurisdiction in which the principal trading market for such
Securities is located, where such Securities are to be presented for
cancellation and/or payment and/or registration, or where such Securities
are acquired. Custodian at any time may cease utilizing any Subcustodian
and/or may replace a Subcustodian with a different Subcustodian (the
"Replacement Subcustodian"). In the event Custodian selects a Replacement
Subcustodian, Custodian shall not utilize such Replacement Subcustodian
until after the Fund's board or foreign custody manager has determined that
utilization of such Replacement Subcustodian satisfies the requirements of
the '40 Act and Rule 17f-5 thereunder.
(b) Unless Custodian has received a Certificate or Instructions to the
contrary, Custodian shall hold Securities indirectly through a Subcustodian
only if (i) the Securities are not subject to any right, charge, security
interest, lien or claim of any kind in favor of such Subcustodian or its
creditors or operators, including a receiver or trustee in bankruptcy or
similar authority, except for a claim of payment for the safe custody or
administration of Securities on behalf of the Fund by such Subcustodian,
and (ii) beneficial ownership of the Securities is freely transferable
without the payment of money or value other than for safe custody or
administration.
2. Custodian shall furnish the Fund with an advice of daily transactions
(including a confirmation of each transfer of Securities) and a monthly
summary of all transfers to or from the Accounts.
3. With respect to all Securities held hereunder, Custodian shall, unless
otherwise instructed to the contrary:
(a) Receive all income and other payments and advise the Fund as promptly as
practicable of any such amounts due but not paid;
(b) Present for payment and receive the amount paid upon all Securities which
may mature and advise the Fund as promptly as practicable of any such
amounts due but not paid;
(c) Forward to the Fund copies of all information or documents that it may
actually receive from an issuer of Securities which, in the opinion of
Custodian, are intended for the beneficial owner of Securities;
(d) Execute, as custodian, any certificates of ownership, affidavits,
declarations or other certificates under any tax laws now or hereafter in
effect in connection with the collection of bond and note coupons;
(e) Hold directly or through a Depository, a Foreign Depository, or a
Subcustodian all rights and similar Securities issued with respect to any
Securities credited to an Account hereunder; and
(f) Endorse for collection checks, drafts or other negotiable instruments.
4. (a) Custodian shall notify the Fund of rights or discretionary actions with
respect to Securities held hereunder, and of the date or dates by when such
rights must be exercised or such action must be taken, provided that
Custodian has actually received, from the issuer or the relevant Depository
(with respect to Securities issued in the United States) or from the
relevant Subcustodian, Foreign Depository, or a nationally or
internationally recognized bond or corporate action service to which
Custodian subscribes, timely notice of such rights or discretionary
corporate action or of the date or dates such rights must be exercised or
such action must be taken. Absent actual receipt of such notice, Custodian
shall have no liability for failing to so notify the Fund.
(b) Whenever Securities (including, but not limited to, warrants, options,
tenders, options to tender or non-mandatory puts or calls) confer
discretionary rights on the Fund or provide for discretionary action or
alternative courses of action by the Fund, the Fund shall be responsible
for making any decisions relating thereto and for directing Custodian to
act. In order for Custodian to act, it must receive the Fund's Certificate
or Instructions at Custodian's offices, addressed as Custodian may from
time to time request, not later than noon (New York time) at least two (2)
Business Days prior to the last scheduled date to act with respect to such
Securities (or such earlier date or time as Custodian may specify to the
Fund). Absent Custodian's timely receipt of such Certificate or
Instructions, Custodian shall not be liable for failure to take any action
relating to or to exercise any rights conferred by such Securities.
5. All voting rights with respect to Securities, however registered, shall be
exercised by the Fund or its designee. For Securities issued in the United
States, Custodian's only duty shall be to mail to the Fund any documents
(including proxy statements, annual reports and signed proxies) actually
received by Custodian relating to the exercise of such voting rights. With
respect to Securities issued outside of the United States, Custodian's only
duty shall be to provide the Fund with access to a provider of global proxy
services at the Fund's request. The Fund shall be responsible for all costs
associated with its use of such services.
6. Custodian shall promptly advise the Fund upon Custodian's actual receipt of
notification of the partial redemption, partial payment or other action
affecting less than all Securities of the relevant class. If Custodian, any
Subcustodian, any Depository, or any Foreign Depository holds any
Securities in which the Fund has an interest as part of a fungible mass,
Custodian, such Subcustodian, Depository, or Foreign Depository may select
the Securities to participate in such partial redemption, partial payment
or other action in any non-discriminatory manner that it customarily uses
to make such selection.
7. Custodian shall not under any circumstances accept bearer interest coupons
which have been stripped from United States federal, state or local
government or agency securities unless explicitly agreed to by Custodian in
writing.
8. The Fund shall be liable for all taxes, assessments, duties and other
governmental charges, including any interest or penalty with respect
thereto ("Taxes"), with respect to any cash or Securities held on behalf of
the Fund or any transaction related thereto. The Fund shall indemnify
Custodian and each Subcustodian for the amount of any Tax that Custodian,
any such Subcustodian or any other withholding agent is required under
applicable laws (whether by assessment or otherwise) to pay on behalf of,
or in respect of income earned by or payments or distributions made to or
for the account of the Fund (including any payment of Tax required by
reason of an earlier failure to withhold). Custodian shall, or shall
instruct the applicable Subcustodian or other withholding agent to,
withhold the amount of any Tax which is required to be withheld under
applicable law upon collection of any dividend, interest or other
distribution made with respect to any Security and any proceeds or income
from the sale, loan or other transfer of any Security. In the event that
Custodian or any Subcustodian is required under applicable law to pay any
Tax on behalf of the Fund, Custodian is hereby authorized to withdraw cash
from any cash account in the amount required to pay such Tax and to use
such cash, or to remit such cash to the appropriate Subcustodian or other
withholding agent, for the timely payment of such Tax in the manner
required by applicable law. If the aggregate amount of cash in all cash
accounts is not sufficient to pay such Tax, Custodian shall promptly notify
the Fund of the additional amount of cash (in the appropriate currency)
required, and the Fund shall directly deposit such additional amount in the
appropriate cash account promptly after receipt of such notice, for use by
Custodian as specified herein. In the event that Custodian reasonably
believes that Fund is eligible, pursuant to applicable law or to the
provisions of any tax treaty, for a reduced rate of, or exemption from, any
Tax which is otherwise required to be withheld or paid on behalf of the
Fund under any applicable law, Custodian shall, or shall instruct the
applicable Subcustodian or withholding agent to, either withhold or pay
such Tax at such reduced rate or refrain from withholding or paying such
Tax, as appropriate; provided that Custodian shall have received from the
Fund all documentary evidence of residence or other qualification for such
reduced rate or exemption required to be received under such applicable law
or treaty. In the event that Custodian reasonably believes that a reduced
rate of, or exemption from, any Tax is obtainable only by means of an
application for refund, Custodian and the applicable Subcustodian shall
have no responsibility for the accuracy or validity of any forms or
documentation provided by the Fund to Custodian hereunder. The Fund hereby
agrees to indemnify and hold harmless Custodian and each Subcustodian in
respect of any liability arising from any underwithholding or underpayment
of any Tax which results from the inaccuracy or invalidity of any such
forms or other documentation, and such obligation to indemnify shall be a
continuing obligation of the Fund, its successors and assigns
notwithstanding the termination of this Agreement.
9. (a) For the purpose of settling Securities and foreign exchange
transactions, the Fund shall provide Custodian with sufficient immediately
available funds for all transactions by such time and date as conditions in
the relevant market dictate. As used herein, "sufficient immediately
available funds" shall mean either (i) sufficient cash denominated in U.S.
dollars to purchase the necessary foreign currency, or (ii) sufficient
applicable foreign currency, to settle the transaction. Custodian shall
provide the Fund with immediately available funds each day which result
from the actual settlement of all sale transactions, based upon advices
received by Custodian from Subcustodians, Depositories, and Foreign
Depositories. Such funds shall be in U.S. dollars or such other currency as
the Fund may specify to Custodian.
(b) Any foreign exchange transaction effected by Custodian in connection with
this Agreement may be entered with Custodian or a BNY Affiliate acting as
principal or otherwise through customary banking channels. The Fund may
issue a standing Certificate or Instructions with respect to foreign
exchange transactions, but Custodian may establish rules or limitations
concerning any foreign exchange facility made available to the Fund. The
Fund shall bear all risks of investing in Securities or holding cash
denominated in a foreign currency.
(c) To the extent that Custodian has agreed to provide pricing or other
information services in connection with this Agreement, Custodian is
authorized to utilize any vendor (including brokers and dealers of
Securities) reasonably believed by Custodian to be reliable to provide such
information. The Fund understands that certain pricing information with
respect to complex financial instruments (e.g., derivatives) may be based
on calculated amounts rather than actual market transactions and may not
reflect actual market values, and that the variance between such calculated
amounts and actual market values may or may not be material. Where vendors
do not provide information for particular Securities or other property, an
Authorized Person may advise Custodian in a Certificate regarding the fair
market value of, or provide other information with respect to, such
Securities or property as determined by it in good faith. Custodian shall
not be liable for any loss, damage or expense incurred as a result of
errors or omissions with respect to any pricing or other information
utilized by Custodian hereunder.
10. Custodian shall promptly send to the Fund (a) any reports it receives from
a Depository on such Depository's system of internal accounting control,
and (b) such reports on its own system of internal accounting control as
the Fund may reasonably request from time to time.
ARTICLE IV
PURCHASE AND SALE OF SECURITIES;
CREDITS TO ACCOUNT
1. Promptly after each purchase or sale of Securities by the Fund, the Fund
shall deliver to Custodian a Certificate or Instructions, or with respect
to a purchase or sale of a Security generally required to be settled on the
same day the purchase or sale is made, Oral Instructions specifying all
information Custodian may reasonably request to settle such purchase or
sale. Custodian shall account for all purchases and sales of Securities on
the actual settlement date unless otherwise agreed by Custodian.
2. The Fund understands that when Custodian is instructed to deliver
Securities against payment, delivery of such Securities and receipt of
payment therefor may not be completed simultaneously. Notwithstanding any
provision in this Agreement to the contrary, settlements, payments and
deliveries of Securities may be effected by Custodian or any Subcustodian
in accordance with the customary or established securities trading or
securities processing practices and procedures in the jurisdiction in which
the transaction occurs, including, without limitation, delivery to a
purchaser or dealer therefor (or agent) against receipt with the
expectation of receiving later payment for such Securities. The Fund
assumes full responsibility for all risks, including, without limitation,
credit risks, involved in connection with such deliveries of Securities.
3. Custodian may, as a matter of bookkeeping convenience or by separate
agreement with the Fund, credit the Account with the proceeds from the
sale, redemption or other disposition of Securities or interest, dividends
or other distributions payable on Securities prior to its actual receipt of
final payment therefor. All such credits shall be conditional until
Custodian's actual receipt of final payment and may be reversed by
Custodian to the extent that final payment is not received. Payment with
respect to a transaction will not be "final" until Custodian shall have
received immediately available funds which under applicable local law, rule
and/or practice are irreversible and not subject to any security interest,
levy or other encumbrance, and which are specifically applicable to such
transaction.
ARTICLE V
OVERDRAFTS OR INDEBTEDNESS
1. If Custodian should in its sole discretion advance funds on behalf of any
Series which results in an overdraft (including, without limitation, any
day-light overdraft) because the money held by Custodian in an Account for
such Series shall be insufficient to pay the total amount payable upon a
purchase of Securities specifically allocated to such Series, as set forth
in a Certificate, Instructions or Oral Instructions, or if an overdraft
arises in the separate account of a Series for some other reason,
including, without limitation, because of a reversal of a conditional
credit or the purchase of any currency, or if the Fund is for any other
reason indebted to Custodian with respect to a Series, including any
indebtedness to The Bank of New York under the Fund's Cash Management and
Related Services Agreement (except a borrowing for investment or for
temporary or emergency purposes using Securities as collateral pursuant to
a separate agreement and subject to the provisions of Section 2 of this
Article), such overdraft or indebtedness shall be deemed to be a loan made
by Custodian to the Fund for such Series payable on demand and shall bear
interest from the date incurred at a rate per annum ordinarily charged by
Custodian to its institutional customers, as such rate may be adjusted from
time to time. In addition, the Fund hereby agrees that Custodian shall to
the maximum extent permitted by law have a continuing lien, security
interest, and security entitlement in and to any property, including,
without limitation, any investment property or any financial asset, of such
Series at any time held by Custodian for the benefit of such Series or in
which such Series may have an interest which is then in Custodian's
possession or control or in possession or control of any third party acting
in Custodian's behalf. The Fund authorizes Custodian, in its sole
discretion, at any time to charge any such overdraft or indebtedness
together with interest due thereon against any balance of account standing
to such Series' credit on Custodian's books.
2. If the Fund borrows money from any bank (including Custodian if the
borrowing is pursuant to a separate agreement) for investment or for
temporary or emergency purposes using Securities held by Custodian
hereunder as collateral for such borrowings, the Fund shall deliver to
Custodian a Certificate specifying with respect to each such borrowing: (a)
the Series to which such borrowing relates; (b) the name of the bank, (c)
the amount of the borrowing, (d) the time and date, if known, on which the
loan is to be entered into, (e) the total amount payable to the Fund on the
borrowing date, (f) the Securities to be delivered as collateral for such
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
specifying whether such loan is for investment purposes or for temporary or
emergency purposes and that such loan is in conformance with the '40 Act
and the Fund's prospectus. Custodian shall deliver on the borrowing date
specified in a Certificate the specified collateral against payment 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.
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.
Custodian shall deliver such Securities as additional collateral as may be
specified in a Certificate to collateralize further any transaction
described in this Section. The Fund shall cause all Securities released
from collateral status to be returned directly to Custodian, and Custodian
shall receive from time to time such return of collateral as may be
tendered to it. In the event that the Fund fails to specify in a
Certificate the Series, 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 Custodian, Custodian shall not be under any obligation to
deliver any Securities.
ARTICLE VI
SALE AND REDEMPTION OF SHARES
1. Whenever the Fund shall sell any shares issued by the Fund ("Shares") it
shall deliver to Custodian a Certificate or Instructions specifying the
amount of money and/or Securities to be received by Custodian for the sale
of such Shares and specifically allocated to an Account for such Series.
2. Upon receipt of such money, Custodian shall credit such money to an Account
in the name of the Series for which such money was received.
3. Except as provided hereinafter, whenever the Fund desires Custodian to make
payment out of the money held by Custodian hereunder in connection with a
redemption of any Shares, it shall furnish to Custodian a Certificate or
Instructions specifying the total amount to be paid for such Shares.
Custodian shall make payment of such total amount to the transfer agent
specified in such Certificate or Instructions out of the money held in an
Account of the appropriate Series.
4. Notwithstanding the above provisions regarding the redemption of any
Shares, whenever any Shares are redeemed pursuant to any check redemption
privilege which may from time to time be offered by the Fund, Custodian,
unless otherwise instructed by a Certificate or Instructions, shall, upon
presentment of such check, charge the amount thereof against the money held
in the Account of the Series of the Shares being redeemed, provided, that
if the Fund or its agent timely advises Custodian that such check is not to
be honored, Custodian shall return such check unpaid.
ARTICLE VII
PAYMENT OF DIVIDENDS OR DISTRIBUTIONS
1. Whenever the Fund shall determine to pay a dividend or distribution on
Shares it shall furnish to Custodian Instructions or a Certificate setting
forth with respect to the Series specified therein the date of the
declaration of such dividend or distribution, the total amount payable, and
the payment date.
2. Upon the payment date specified in such Instructions or Certificate,
Custodian shall pay out of the money held for the account of such Series
the total amount payable to the dividend agent of the Fund specified
therein.
ARTICLE VIII
CONCERNING CUSTODIAN
1. (a) Except as otherwise expressly provided herein, Custodian shall not be
liable for any costs, expenses, damages, liabilities or claims, including
attorneys' and accountants' fees (collectively, "Losses"), incurred by or
asserted against the Fund, except those Losses arising out of Custodian's
own negligence or willful misconduct. Custodian shall have no liability
whatsoever for the action or inaction of any Depositories or any Foreign
Depositories. With respect to any Losses incurred by the Fund as a result
of the acts or any failures to act by any Subcustodian (other than a BNY
Affiliate), Custodian shall take appropriate action to recover such Losses
from such Subcustodian; and Custodian's sole responsibility and liability
to the Fund shall be limited to amounts so received from such Subcustodian
(exclusive of costs and expenses incurred by Custodian). In no event shall
Custodian be liable to the Fund or any third party for special, indirect or
consequential damages, or lost profits or loss of business, arising in
connection with this Agreement, nor shall BNY or any Subcustodian be
liable: (i) for acting in accordance with any Certificate or Oral
Instructions actually received by Custodian and reasonably believed by
Custodian to be given by an Authorized Person; (ii) for acting in
accordance with Instructions without reviewing the same; (iii) for
conclusively presuming that all Instructions are given only by person(s)
duly authorized; (iv) for conclusively presuming that all disbursements of
cash directed by the Fund, whether by a Certificate, an Oral Instruction,
or an Instruction, are in accordance with Section 2(i) of Article II
hereof; (v) for holding property in any particular country, including, but
not limited to, Losses resulting from nationalization, expropriation or
other governmental actions; regulation of the banking or securities
industry; exchange or currency controls or restrictions, devaluations or
fluctuations; availability of cash or Securities or market conditions which
prevent the transfer of property or execution of Securities transactions or
affect the value of property; (vi) for any Losses due to forces beyond the
control of Custodian, including without limitation strikes, work stoppages,
acts of war or terrorism, insurrection, revolution, nuclear or natural
catastrophes or acts of God, or interruptions, loss or malfunctions of
utilities, communications or computer (software and hardware) services;
(vii) for the insolvency of any Subcustodian (other than a BNY Affiliate),
any Depository, or any Foreign Depository; or (viii) for any Losses arising
from the applicability of any law or regulation now or hereafter in effect,
or from the occurrence of any event, including, without limitation, any
rules or procedures of a Foreign Depository, which may affect, limit,
prevent or impose costs or burdens on, the transferability, convertibility,
or availability of any currency or Composite Currency Unit in any country
or on the transfer of any Securities, and in no event shall Custodian be
obligated to substitute another currency for a currency (including a
currency that is a component of a Composite Currency Unit) whose
transferability, convertibility or availability has been affected, limited,
or prevented by such law, regulation or event, and to the extent that any
such law, regulation or event imposes a cost or charge upon Custodian in
relation to the transferability, convertibility, or availability of any
cash currency or Composite Currency Unit, such cost or charge shall be for
the account of the Fund, and Custodian may treat any account denominated in
an affected currency as a group of separate accounts denominated in the
relevant component currencies.
(b) Custodian may enter into subcontracts, agreements and understandings with
any BNY Affiliate, whenever and on such terms and conditions as it deems
necessary or appropriate to perform its services hereunder. No such
subcontract, agreement or understanding shall discharge Custodian from its
obligations hereunder.
(c) The Fund agrees to indemnify Custodian and hold Custodian harmless from and
against any and all Losses sustained or incurred by or asserted against
Custodian by reason of or as a result of any action or inaction, or arising
out of Custodian's performance hereunder, including reasonable fees and
expenses of counsel incurred by Custodian in a successful defense of claims
by the Fund; provided however, that the Fund shall not indemnify Custodian
for those Losses arising out of Custodian's own negligence or willful
misconduct. This indemnity shall be a continuing obligation of the Fund,
its successors and assigns, notwithstanding the termination of this
Agreement.
2. Without limiting the generality of the foregoing, Custodian shall be under
no obligation to inquire into, and shall not be liable for:
(a) Any Losses incurred by the Fund or any other person as a result of the
receipt or acceptance of fraudulent, forged or invalid Securities, or
Securities which are otherwise not freely transferable or deliverable
without encumbrance in any relevant market;
(b) The validity of the issue of any Securities purchased, sold, or written by
or for the Fund, the legality of the purchase, sale or writing thereof, or
the propriety of the amount paid or received therefor;
(c) The legality of the sale or redemption of any Shares, or the propriety of
the amount to be received or paid therefor;
(d) The legality of the declaration or payment of any dividend or distribution
by the Fund;
(e) The legality of any borrowing by the Fund;
(f) The legality of any loan of portfolio Securities, nor shall Custodian be
under any duty or obligation to see to it that any cash or collateral
delivered to it by a broker, dealer or financial institution or held by it
at any time as a result of such loan of portfolio Securities is adequate
security for the Fund against any loss it might sustain as a result of such
loan, which duty or obligation shall be the sole responsibility of the
Fund. In addition, Custodian shall be under no duty or obligation to see
that any broker, dealer or financial institution to which portfolio
Securities of the Fund are lent makes payment to it of any dividends or
interest which are payable to or for the account of the Fund during the
period of such loan or at the termination of such loan, provided, however
that Custodian shall promptly notify the Fund in the event that such
dividends or interest are not paid and received when due;
(g) The sufficiency or value of any amounts of money and/or Securities held in
any Special Account in connection with transactions by the Fund; whether
any broker, dealer, futures commission merchant or clearing member makes
payment to the Fund of any variation margin payment or similar payment
which the Fund may be entitled to receive from such broker, dealer, futures
commission merchant or clearing member, or whether any payment received by
Custodian from any broker, dealer, futures commission merchant or clearing
member is the amount the Fund is entitled to receive, or to notify the Fund
of Custodian's receipt or non-receipt of any such payment; or
(h) Whether any Securities at any time delivered to, or held by it or by any
Subcustodian, for the account of the Fund and specifically allocated to a
Series are such as properly may be held by the Fund or such Series under
the provisions of its then current prospectus and statement of additional
information, or to ascertain whether any transactions by the Fund, whether
or not involving Custodian, are such transactions as may properly be
engaged in by the Fund.
3. Custodian may, with respect to questions of law specifically regarding an
Account, obtain the advice of counsel and shall be fully protected with
respect to anything done or omitted by it in good faith in conformity with
such advice, provided that if Custodian has determined to obtain a written
opinion of counsel, Custodian shall promptly advise the Fund of such
determination, and upon receipt of such opinion shall furnish a copy
thereof to the Fund.
4. Custodian shall be under no obligation to take action to collect any amount
payable on Securities in default, or if payment is refused after due demand
and presentment.
5. Custodian shall have no duty or responsibility to inquire into, make
recommendations, supervise, or determine the suitability of any
transactions affecting any Account.
6. The Fund shall pay to Custodian the fees and charges as may be specifically
agreed upon from time to time and such other fees and charges at
Custodian's standard rates for such services as may be applicable. The Fund
shall reimburse Custodian for all costs associated with the conversion of
the Fund's Securities hereunder and the transfer of Securities and records
kept in connection with this Agreement. The Fund shall also reimburse
Custodian for out-of-pocket expenses which are a normal incident of the
services provided hereunder.
7. Custodian has the right to debit any cash account for any amount payable by
the Fund in connection with any and all obligations of the Fund to
Custodian. In addition to the rights of Custodian under applicable law and
other agreements, at any time when the Fund shall not have honored any of
its obligations to Custodian, Custodian shall have the right without notice
to the Fund to retain or set-off, against such obligations of the Fund, any
Securities or cash Custodian or a BNY Affiliate may directly or indirectly
hold for the account of the Fund, and any obligations (whether matured or
unmatured) that Custodian or a BNY Affiliate may have to the Fund in any
currency or Composite Currency Unit. Any such asset of, or obligation to,
the Fund may be transferred to Custodian and any BNY Affiliate in order to
effect the above rights.
8. The Fund agrees to forward to Custodian a Certificate or Instructions
confirming Oral Instructions by the close of business of the same day that
such Oral Instructions are given to Custodian. The Fund agrees that the
fact that such confirming Certificate or Instructions are not received or
that a contrary Certificate or contrary Instructions are received by
Custodian shall in no way affect the validity or enforceability of
transactions authorized by such Oral Instructions and effected by
Custodian. If the Fund elects to transmit Instructions through an on-line
communications system offered by Custodian, the Fund's use thereof shall be
subject to the Terms and Conditions attached as Appendix I hereto, and
Custodian shall provide user and authorization codes, passwords and
authentication keys only to an Authorized Person or a person reasonably
believed by Custodian to be an Authorized Person.
9. The books and records pertaining to the Fund which are in possession of
Custodian shall be the property of the Fund. Such books and records shall
be prepared and maintained as required by the '40 Act and the rules
thereunder. The Fund, or its authorized representatives, shall have access
to such books and records during Custodian's normal business hours. Upon
the reasonable request of the Fund, copies of any such books and records
shall be provided by Custodian to the Fund or its authorized
representative. Upon the reasonable request of the Fund, Custodian shall
provide in hard copy or on computer disc any records included in any such
delivery which are maintained by Custodian on a computer disc, or are
similarly maintained.
10. It is understood that Custodian is authorized to supply any information
regarding the Accounts which is required by any law, regulation or rule now
or hereafter in effect. The Custodian shall provide the Fund with any
report obtained by the Custodian on the system of internal accounting
control of a Depository, and with such reports on its own system of
internal accounting control as the Fund may reasonably request from time to
time.
11. Custodian shall have no duties or responsibilities whatsoever except such
duties and responsibilities as are specifically set forth in this
Agreement, and no covenant or obligation shall be implied against Custodian
in connection with this Agreement.
ARTICLE IX
TERMINATION
1. Either of the parties hereto may terminate this Agreement 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. In the event such notice is given by the Fund, it shall be
accompanied by a copy of a resolution of the board of the Fund, certified
by the Secretary or any Assistant Secretary, electing to terminate this
Agreement 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 Custodian, the Fund shall, on or before the termination date,
deliver to Custodian a copy of a resolution of the board of the Fund,
certified by the Secretary or any Assistant Secretary, designating a
successor custodian or custodians. In the absence of such designation by
the Fund, 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, and 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 money then owned by the Fund and
held by it as Custodian, 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 Fund or Custodian in
accordance with the preceding Section, the Fund shall upon the date
specified in the notice of termination of this Agreement and upon the
delivery by Custodian of all Securities (other than Securities which cannot
be delivered to the Fund) and money then owned by the Fund be deemed to be
its own custodian and Custodian shall thereby be relieved of all duties and
responsibilities pursuant to this Agreement, other than the duty with
respect to Securities which cannot be delivered to the Fund to hold such
Securities hereunder in accordance with this Agreement.
ARTICLE X
MISCELLANEOUS
1. The Fund agrees to furnish to Custodian a new Certificate of Authorized
Persons in the event of any change in the then present Authorized Persons.
Until such new Certificate is received, Custodian shall be fully protected
in acting upon Certificates or Oral Instructions of such present Authorized
Persons.
2. Any notice or other instrument in writing, authorized or required by this
Agreement to be given to Custodian, shall be sufficiently given if
addressed to Custodian and received by it at its offices at 000 Xxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as Custodian may
from time to time designate in writing.
3. Any notice or other instrument in writing, authorized or required by this
Agreement to be given to the Fund shall be sufficiently given if addressed
to the Fund and received by it at its offices at 0000 Xxxxx Xxxxxx, Xxx
Xxxxxx, Xxxx 00000-0000, or at such other place as the Fund may from time
to time designate in writing. 4. Each and every right granted to either
party hereunder or under any other document delivered hereunder or in
connection herewith, or allowed it by law or equity, shall be cumulative
and may be exercised from time to time. No failure on the part of either
party to exercise, and no delay in exercising, any right will operate as a
waiver thereof, nor will any single or partial exercise by either party of
any right preclude any other or future exercise thereof or the exercise of
any other right.
5. In case any provision in or obligation under this Agreement shall be
invalid, illegal or unenforceable in any exclusive jurisdiction, the
validity, legality and enforceability of the remaining provisions shall not
in any way be affected thereby. This Agreement may not be amended or
modified in any manner except by a written agreement executed by both
parties, except that any amendment to the Schedule I hereto need be signed
only by the Fund and any amendment to Appendix I hereto need be signed only
by Custodian. 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 either party
without the written consent of the other.
6. This Agreement shall be construed in accordance with the substantive laws
of the State of New York, without regard to conflicts of laws principles
thereof. The Fund and Custodian hereby consent to the jurisdiction of a
state or federal court situated in New York City, New York in connection
with any dispute arising hereunder. The Fund hereby irrevocably waives, to
the fullest extent permitted by applicable law, any objection which it may
now or hereafter have to the laying of venue of any such proceeding brought
in such a court and any claim that such proceeding brought in such a court
has been brought in an inconvenient forum. The Fund and Custodian each
hereby irrevocably waives any and all rights to trial by jury in any legal
proceeding arising out of or relating to this Agreement.
7. 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 Fund and Custodian have caused this Agreement to be
executed by their respective officers, thereunto duly authorized, as of the day
and year first above written.
VINTAGE MUTUAL FUNDS, INC.
By: /s/
Title: Xxxxx X. Xxxxx, President
Tax Identification No:
THE BANK OF NEW YORK
By: /s/
Title:
SCHEDULE I
CERTIFICATE OF AUTHORIZED PERSONS
(The Fund - Oral and Written Instructions)
The undersigned hereby certifies that he/she is the duly elected and acting
________________________ of VINTAGE MUTUAL FUNDS, INC. (the "Fund"), and further
certifies that the following officers or employees of the Fund have been duly
authorized in conformity with the Fund's Articles of Incorporation and By-Laws
to deliver Certificates and Oral Instructions to The Bank of New York
("Custodian") pursuant to the Custody Agreement between the Fund and Custodian
dated _______________, and that the signatures appearing opposite their names
are true and correct:
Name Title Signature
Name Title Signature
Name Title Signature
Name Title Signature
Name Title Signature
Name Title Signature
Name Title Signature
Name Title Signature
Name Title Signature
This certificate supersedes any certificate of Authorized Persons you may
currently have on file.
[seal] By:
Title:
Date:
SCHEDULE II
SERIES
Government Assets
Liquid Assets, T and I Shares
Municipal Assets, T and I Shares
Vintage Limited Term
Vintage Bond
Vintage Income
Vintage Municipal Bond
Vintage Balanced
Vintage Equity, S and T Shares
Vintage Aggressive Growth.
APPENDIX I
THE BANK OF NEW YORK
ON-LINE COMMUNICATIONS SYSTEM (THE "SYSTEM")
TERMS AND CONDITIONS
1. License; Use. Upon delivery to an Authorized Person or a person reasonably
believed by Custodian to be an Authorized person the Fund of software enabling
the Fund to obtain access to the System (the "Software"), Custodian grants to
the Fund a personal, nontransferable and nonexclusive license to use the
Software solely for the purpose of transmitting Written Instructions, receiving
reports, making inquiries or otherwise communicating with Custodian in
connection with the Account(s). The Fund shall use the Software solely for its
own internal and proper business purposes and not in the operation of a service
bureau. Except as set forth herein, no license or right of any kind is granted
to the Fund with respect to the Software. The Fund acknowledges that Custodian
and its suppliers retain and have title and exclusive proprietary rights to the
Software, including any trade secrets or other ideas, concepts, know-how,
methodologies, or information incorporated therein and the exclusive rights to
any copyrights, trademarks and patents (including registrations and applications
for registration of either), or other statutory or legal protections available
in respect thereof. The Fund further acknowledges that all or a part of the
Software may be copyrighted or trademarked (or a registration or claim made
therefor) by Custodian or its suppliers. The Fund shall not take any action with
respect to the Software inconsistent with the foregoing acknowledgments, nor
shall you attempt to decompile, reverse engineer or modify the Software. The
Fund may not copy, sell, lease or provide, directly or indirectly, any of the
Software or any portion thereof to any other person or entity without
Custodian's prior written consent. The Fund may not remove any statutory
copyright notice or other notice included in the Software or on any media
containing the Software. The Fund shall reproduce any such notice on any
reproduction of the Software and shall add any statutory copyright notice or
other notice to the Software or media upon Custodian's request.
2. Equipment. The Fund shall obtain and maintain at its own cost and expense all
equipment and services, including but not limited to communications services,
necessary for it to utilize the Software and obtain access to the System, and
Custodian shall not be responsible for the reliability or availability of any
such equipment or services.
3. Proprietary Information. The Software, any data base and any proprietary
data, processes, information and documentation made available to the Fund (other
than which are or become part of the public domain or are legally required to be
made available to the public) (collectively, the "Information"), are the
exclusive and confidential property of Custodian or its suppliers. The Fund
shall keep the Information confidential by using the same care and discretion
that the Fund uses with respect to its own confidential property and trade
secrets, but not less than reasonable care. Upon termination of the Agreement or
the Software license granted herein for any reason, the Fund shall return to
Custodian any and all copies of the Information which are in its possession or
under its control.
4. Modifications. Custodian reserves the right to modify the Software from time
to time and the Fund shall install new releases of the Software as Custodian may
direct. The Fund agrees not to modify or attempt to modify the Software without
Custodian's prior written consent. The Fund acknowledges that any modifications
to the Software, whether by the Fund or Custodian and whether with or without
Custodian's consent, shall become the property of Custodian.
5. NO REPRESENTATIONS OR WARRANTIES. CUSTODIAN AND ITS MANUFACTURERS AND
SUPPLIERS MAKE NO WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE SOFTWARE,
SERVICES OR ANY DATABASE, EXPRESS OR IMPLIED, IN FACT OR IN LAW, INCLUDING BUT
NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. THE FUND ACKNOWLEDGES THAT THE SOFTWARE, SERVICES AND ANY DATABASE ARE
PROVIDED "AS IS." IN NO EVENT SHALL CUSTODIAN OR ANY SUPPLIER BE LIABLE FOR ANY
DAMAGES, WHETHER DIRECT, INDIRECT SPECIAL, OR CONSEQUENTIAL, WHICH THE FUND MAY
INCUR IN CONNECTION WITH THE SOFTWARE, SERVICES OR ANY DATABASE, EVEN IF
CUSTODIAN OR SUCH SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT SHALL CUSTODIAN OR ANY SUPPLIER BE LIABLE FOR ACTS OF GOD, MACHINE
OR COMPUTER BREAKDOWN OR MALFUNCTION, INTERRUPTION OR MALFUNCTION OF
COMMUNICATION FACILITIES, LABOR DIFFICULTIES OR ANY OTHER SIMILAR OR DISSIMILAR
CAUSE BEYOND THEIR REASONABLE CONTROL.
6. Security; Reliance; Unauthorized Use. The Fund will cause all persons
utilizing the Software and System to treat all applicable user and authorization
codes, passwords and authentication keys with extreme care, and it will
establish internal control and safekeeping procedures to restrict the
availability of the same to persons duly authorized to give Instructions..
Custodian is hereby irrevocably authorized to act in accordance with and rely on
Instructions received by it through the System. The Fund acknowledges that it is
its sole responsibility to assure that only persons duly authorized use the
System and that Custodian shall not be responsible nor liable for any
unauthorized use thereof.
7. System Acknowledgments. Custodian shall acknowledge through the System its
receipt of each transmission communicated through the System, and in the absence
of such acknowledgment Custodian shall not be liable for any failure to act in
accordance with such transmission and the Fund may not claim that such
transmission was received by Custodian.
8. EXPORT RESTRICTIONS. EXPORT OF THE SOFTWARE IS PROHIBITED BY UNITED STATES
LAW. THE FUND MAY NOT UNDER ANY CIRCUMSTANCES RESELL, DIVERT, TRANSFER,
TRANSSHIP OR OTHERWISE DISPOSE OF THE SOFTWARE (IN ANY FORM) IN OR TO ANY OTHER
COUNTRY. IF CUSTODIAN DELIVERED THE SOFTWARE TO THE FUND OUTSIDE OF THE UNITED
STATES, THE SOFTWARE WAS EXPORTED FROM THE UNITED STATES IN ACCORDANCE WITH THE
EXPORTER ADMINISTRATION REGULATIONS. DIVERSION CONTRARY TO U.S. LAW IS
PROHIBITED. The Fund hereby authorizes Custodian to report its name and address
to government agencies to which Custodian is required to provide such
information by law.
9. ENCRYPTION. The Fund acknowledges and agrees that encryption may not be
available for every communication through the System, or for all data. The Fund
agrees that Custodian may deactivate any encryption features at any time,
without notice or liability to the Fund, for the purpose of maintaining,
repairing or troubleshooting the System or the Software.
