CUSTODIAN AGREEMENT
THIS AGREEMENT made on January 14, 1994, between ASM Fund, Inc., a
Maryland corporation (hereinafter called the "Fund"), and STAR BANK, N.A.,
a national banking association with its principal office and place of business
at 000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx, (hereinafter called the "Custodian"),
W I T N E S S E T H
WHEREAS, the Fund desire that its securities and cash shall be hereafter
held and administered by Custodian pursuant to the terms of this Agreement,
and in accordance with the Star Bank Standards of Service Guide, in effect from
time to time, a copy of which is attached and made a part hereto:
NOW, THEREFORE, in consideration of the mutual agreements herein made, the
Fund and Custodian agree as follows:
1. DEFINITIONS
The word "securities" as used herein includes stocks, shares, bonds,
debentures, notes, mortgages or other obligations, and any certificates,
receipts, warrants or other instruments representing rights to receive,
purchase or subscribe for the same, or evidencing or representing any other
rights or interests therein, or in any property or assets.
The words "officers' certificate" shall mean a request or direction or
certification in writing signed in the name of the Fund by any two of the
President, a Vice President, the Secretary and the Treasurer of the Fund, or
any other persons duly authorized to sign by the Board of Directors.
The word "Board" shall mean Board of Directors of ASM Fund, Inc.
2. NAMES, TITLES AND SIGNATURES OF THE FUND'S OFFICERS
Those persons who are initially authorized to sign the officers'
certificates described in Section 1 hereof, and the names of the members of
the Board of Directors are listed in Exhibit A or such other Certificate as may
be received by Custodian from time to time, subject in each case to any
limitations on the authority of such person as set forth in Exhibit A or any
such Certificate.
3. RECEIPT AND DISBURSEMENT OF MONEY
A. Custodian shall open and maintain a separate account or accounts in
the name of the Fund, subject only to draft or order by Custodian acting
pursuant to the terms of this Agreement. Custodian shall hold in such account
or accounts, subject to the provisions hereof, all cash received by it from or
for the account of the Fund. Custodian shall make payments of cash to, or for
the account of, the Fund from such cash only:
(a) for the purchase of securities for the portfolio of the Fund
upon the delivery of such securities to Custodian, registered in
the name of the Fund or of the nominee of Custodian referred to
in Section 7 or in proper form for transfer;
(b) for the purchase or redemption of shares of the common stock of
the Fund upon delivery thereof to Custodian, or upon proper
instructions from the ASM Fund, Inc.;
(c) for the payment of interest, dividends, taxes, investment
adviser's fees or operating expenses (including, without
limitation thereto, fees for legal, accounting, auditing and
Custodian services and expenses for printing and postage);
(d) for payments in connection with the conversion, exchange or
surrender of securities owned or subscribed to by the Fund held
by or to be delivered to Custodian; or
(e) for other proper corporate purposes certified by resolution of
the Board of Directors of the Fund.
Before making any such payment, Custodian shall receive (and may rely
upon) an officers' certificate requesting such payment and stating that it is
for a purpose permitted under the terms of items (a), (b), (c) or (d) of this
Subsection A, and also in respect of item (e), upon receipt of an officers'
certificate specifying the amount of such payment, setting forth the purpose
for which such payment is to be made, declaring such purpose to be a proper
corporate purpose, and naming the person or persons to whom such payment is
to be made, provided, however, that an officers' certificate need not precede
the disbursement of cash for the purpose of purchasing a money market
instrument, or any other security with the same or next-day settlement, if
the President, Vice President, the Secretary or the Treasurer of the Fund
issues appropriate oral or facsimile instructions to Custodian and an
appropriate officers' certificate is received by Custodian within two
business days thereafter.
B. Custodian is hereby authorized to endorse and collect all checks,
drafts or other orders for the payment of money received by Custodian for the
account of the Fund.
C. Custodian shall, upon receipt of proper instructions, make
federal funds available to the Fund as of specified times agreed upon from time
to time by the Fund and the Custodian in the amount of checks received in
payment for shares of the Fund which are deposited into the Fund's account.
4. SEGREGATED ACCOUNTS
Upon receipt of proper instructions, the Custodian shall establish and
maintain a segregated account(s) for and on behalf of the portfolio, into which
account(s) may be transferred cash and/or securities. The Custodian will be
responsible for assets of the Fund only upon actual receipt.
5. TRANSFER, EXCHANGE, REDELIVERY, ETC. OF SECURITIES
Custodian shall have sole power to release or deliver any securities
of the Fund held by it pursuant to this Agreement. Custodian agrees to
transfer, exchange or deliver securities held by it hereunder only:
(a) for sales of such securities for the account of the Fund upon
receipt by Custodian of payment therefore;
(b) when such securities are called, redeemed or retired or
otherwise become payable;
(c) for examination by any broker selling any such securities in
accordance with "street delivery" custom;
(d) in exchange for, or upon conversion into, other securities alone
or other securities and cash whether pursuant to any plan of
merger, consolidation, reorganization, recapitalization or
readjustment, or otherwise;
(e) upon conversion of such securities pursuant to their terms into
other securities;
(f) upon exercise of subscription, purchase or other similar rights
represented by such securities;
(g) for the purpose of exchanging interim receipts or temporary
securities for definitive securities;
(h) for the purpose of redeeming in kind shares of common stock of
the Fund upon delivery thereof to Custodian; or
(i) for other proper corporate purposes.
As to any deliveries made by Custodian pursuant to items (a), (b),
(d), (e), (f), and (g), securities or cash receivable in exchange therefore
shall be deliverable to Custodian.
Before making any such transfer, exchange or delivery, Custodian shall
receive (and may rely upon) an officers' certificate requesting such transfer,
exchange or delivery, and stating that it is for a purpose permitted under the
terms of items (a), (b), (c), (d), (e), (f), (g) or (h) of this Section 5 and
also, in respect to item (i), upon receipt of an officer's certificate
specifying the securities to be delivered, setting forth the purpose for which
such delivery is to be made, declaring such purpose to be a proper corporate
purpose, and naming the person or persons to whom delivery of such securities
shall be made, provided, however, that an officers' certificate need not
precede any such transfer, exchange or delivery of a money market instrument,
or any other security with same or next-day settlement, if the President, a
Vice President, the Secretary or the Treasurer of the Fund issues appropriate
oral or facsimile instructions to Custodian and an appropriate officers'
certificate is received by Custodian within two business days thereafter.
6. CUSTODIAN'S ACTS WITHOUT INSTRUCTIONS
Unless and until Custodian receives an officers' certificate to the
contrary, Custodian shall: (a) present for payment all coupons and other
income items held by it for the account of the Fund, which call for payment
upon presentation and hold the cash received by it upon such payment for the
account of the Fund; (b) collect interest and cash dividends received, with
notice to the Fund for the account of the Fund; (c) hold for the account of
the Fund hereunder all stock dividends, rights and similar securities issued
with respect to any securities hereunder; and (d) execute, as agent on behalf
of the Fund, all necessary ownership certificates required by the Internal
Revenue Code or the Income Tax Regulations of the Unites States Treasury
Department or under the laws of any state now or hereafter in effect,
inserting the
Fund's name on such certificates as the owner of the securities covered
thereby, to the extent it may lawfully do so.
7. REGISTRATION OF SECURITIES
Except as otherwise directed by an officers' certificate, Custodian
shall register all securities, except such as are in bearer form, in the name
of a registered nominee of Custodian as defined in the Internal Revenue Code
and any Regulations of the Treasury Department issued hereunder or in any
provision of any subsequent federal tax law exempting such transactions from
liability for stock transfer taxes, and shall execute and deliver all such
certificates in connection therewith as may be required by such laws or
regulations or under the laws of any state. Custodian shall use its best
efforts to the end that the specific securities held by it hereunder shall be
at all times identifiable in its records.
The Fund shall from time to time furnish to Custodian appropriate
instruments to enable Custodian to hold or deliver in proper form for transfer,
or to register in the name of its registered nominee, any securities which it
may hold for the account of the Fund and which may from time to time be
registered in the name of the Fund.
8. VOTING AND OTHER ACTION
Neither Custodian nor any nominee of Custodian shall vote any of the
securities held hereunder by or for the account of the Fund, except in
accordance with the instructions contained in an officers' certificate.
Custodian shall deliver, or cause to be executed and delivered, to the
Corporation all notices, proxies and proxy soliciting materials with relation
to such securities, such proxies to be executed by the registered holder or
such securities (if registered otherwise than in the name of the Fund), but
without indicating the manner in which such proxies are to be voted.
9. TRANSFER TAX AND OTHER DISBURSEMENTS
The Fund shall pay or reimburse Custodian from time to time for any
transfer taxes payable upon transfers of securities made hereunder, and for all
other necessary and proper disbursements and expenses made or incurred by
Custodian in the performance of this Agreement.
Custodian shall executed and deliver such certificates in connection
with securities delivered to it or by it under this Agreement as may be
required under the provisions of the Internal Revenue Code and any
Regulations of the Treasury Department issued thereunder, or under the laws
of any state, to exempt from taxation any exemptable transfers and/or
deliveries of any such securities.
10. CONCERNING CUSTODIAN
Custodian shall be paid as compensation for its services pursuant to
this Agreement such compensation as may from time to time be agreed upon in
writing between the two parties. Until modified in a written agreement,
executed by both parties and approved by the Board of Directors of the Fund,
such compensation shall be as set forth in Exhibit B attached hereto.
The Custodian shall be entitled to charge against any money held by
it for the account of the Fund the amount of any loss, damage, liability or
expense, including counsel fees, for which it shall be entitled to
reimbursement under the provisions of this Agreement as determined by
agreement of the Custodian and the Fund or by the final order of any court or
arbitrator having jurisdiction and as to which all rights to appeal have
expired.
Custodian shall not be liable for any action taken in good faith
upon any certificate herein described or certified copy of any resolution of
the Board, and may rely on the genuineness of any such document which it may
in good faith believe to have been validly executed. Custodian shall be
liable for no 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 Fund agrees to indemnify and hold harmless Custodian and its
nominee from all taxes, charges, expenses, assessments, losses, claims and
liabilities (including counsel fees) incurred or assessed against it by its
nominee in connection with the performance of this Agreement, except such as
may arise from its or its nominee's own negligent action, negligent failure
to act or willful misconduct. Custodian is authorized to charge any account
of the Fund for such items. In the event of any advance of cash for any
purpose made by Custodian resulting from orders or instructions of the Fund,
or in the event that Custodian or its nominee shall incur or be assessed any
taxes, charges, expenses, assessments, claims or liabilities in connection
with the performance of this Agreement, except such as may arise from its or
its nominees own negligent action, negligent failure to act or willful
misconduct, any property at any time held for the account of the Fund shall
be security therefore. The Custodian may, with respect to questions of law,
apply for and obtain the advice and opinion of counsel to the Fund at the
expense of the Fund, 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 advice or opinion of its counsel, unless counsel to the
Fund shall, within a reasonable time after notification, have a differing
opinion of such question of law.
11. SUBCUSTODIANS
Custodian is hereby authorized to engage another bank or trust
company as a Subcustodian for all or any part of the Fund's assets, so long
as any such bank or trust company is a bank or trust company organized under
the laws of any state of the United States, having an aggregate capital,
surplus and undivided profit, as shown by its last published report, of not
less than Two Million Dollars ($2,000,000) and provided further that, if the
Custodian utilizes the services of a Subcustodian, the Custodian shall remain
fully liable and responsible for any losses caused to the Fund by the
Subcustodian as fully as if the Custodian was directly responsible for any
such losses under the terms of the Custodian Agreement.
Notwithstanding anything contained herein, if the Fund require the
Custodian to engage specific Subcustodians for the safekeeping and/or
clearing of assets, the Fund agree to indemnify and hold harmless Custodian
from all claims, expenses and liabilities incurred or assessed against it in
connection with the use of such Subcustodian in regard to the Fund's assets,
except as may arise from its own negligent action, negligent failure to act
or willful misconduct.
12. REPORTS BY CUSTODIAN
Custodian shall furnish the Fund periodically as agreed upon with a
statement summarizing all transactions and entries for the account of Fund.
Custodian shall furnish to the
Fund, at the end of every month, a list of the portfolio securities showing
the aggregate cost of each issue. The books and records of Custodian
pertaining to its actions under this Agreement shall be open to inspection
and audit at reasonable times by officers of, and of auditors employed by,
the Fund.
13. TERMINATION OR AMENDMENT OF ASSIGNMENT
This Agreement may be terminated by the Funds, or by Custodian, on
ninety (90) days notice, given in writing and sent by registered mail to
Custodian at 000 Xxxxxx Xxxxxx, Mail Location 5127, Xxxxxxxxxx, Xxxx 00000,
or to the Funds at 000 Xxxxx Xxxxxx Xxxxx, Xxxxx, Xxxxxxx 00000, as the case
may be. Upon any termination of this Agreement, pending appointment of a
successor to Custodian or a vote of the shareholders of the Fund to dissolve
or to function without a custodian of its cash, securities and other
property, Custodian shall not deliver cash, securities or other property of
the Fund to the Fund, but may deliver them to a bank or trust company of its
own selection, having an aggregate capital, surplus and undivided profits, as
shown by its last published report of not less than Two Million Dollars
($2,000,000) as a Custodian for the Fund to be held under terms similar to
those of this Agreement, provided, however, that Custodian shall not be
required to make any such delivery or payment until full payment shall have
been made by the Fund of all liabilities constituting a charge on or against
the properties then held by Custodian or on or against Custodian, and until
full payment shall have been made to Custodian of all of its fees,
compensation, costs and expenses, subject to the provisions of Section 10 of
this Agreement, in addition to reasonable costs of the Custodian in
connection with the termination of this Agreement.
This Agreement may not be assigned by Custodian without the consent
of the Fund, authorized or approved by a resolution of its Board of
Directors. This Agreement may be amended or modified only by a written
agreement executed by both parties and approved by the Board of Directors of
the Fund.
14. DEPOSITS OF SECURITIES IN SECURITIES DEPOSITORIES
No provision of this Agreement shall be deemed to prevent the use by
Custodian of a central securities clearing agency or securities depository,
provided, however, that Custodian and the central securities clearing agency
or securities depository meet all applicable federal and state laws and
regulations.
15. RECORDS
To the extent that Custodian in any capacity prepares or maintains
any records required to be maintained and preserved by the Funds pursuant to
the provisions of the Investment Company Act of 1940, as amended, or the
rules and regulations promulgated thereunder, Custodian agrees to make any
such records available to the Fund upon request and to preserve such records
for the periods prescribed in Rule 31a-2 under the Investment Company Act of
1940, as amended.
16. AGREEMENT BINDING ONLY ON FUND PROPERTY
Star Bank, N.A., understands that the obligations of this Agreement
are not binding upon any shareholder to the Trust personally, but bind only
upon the Trust property. Star
Bank, N.A., represents that it has notice of the provisions of the Trust's
declaration of Trust disclaiming shareholder liability for the acts or
obligations of the Trust.
This Agreement shall be governed by the laws of the of Ohio.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed and their respective corporate seals to be affixed hereto as of
the date first above written by their respective officers thereunto duly
authorized.
Executed in several counterparts, each of which is an original.
Attest: STAR BANK, N.A.
/s/ Xxxxx Xxxxx Xxxxxx /s/ Xxxxxxx X. Xxxxxx
--------------------------- BY:-------------------------
Attest: ASM Fund, Inc.
/s/ Xxxxxxx X. Xxxxxxx /s/ Xxxxxx X. Xxxxx
--------------------------- BY:-------------------------
Exhibit A -- Authorized Signatures
Exhibit B - Fees
APPENDIX A
AUTHORIZED PERSONS SPECIMEN SIGNATURES
------------------ -------------------
President: XXXXXX X. XXXXX /s/ Xxxxxx X. Xxxxx
------------------ ----------------------
Vice President: XXXX XXXXXX /s Xxxx Xxxxxx
------------------ ----------------------
Secretary: XXXXXXX XXXXX /s/ Xxxxxxx X. Xxxxx
------------------ ----------------------
Treasurer: XXXXXX XXXXX /s/ Xxxxxx X. Xxxxx
------------------ ----------------------
Adviser Employees: XXXXX XXXXXXXX /s/ Xxxxx Xxxxxxxx
------------------ ----------------------
MFSCo.
Employees: XXXXXX X. XXXXXX /s/ Xxxxxx X. Xxxxxx
------------------ ----------------------
XXXXXX X. XXXXXX /s/ Xxxxxx X. XxXxxx
------------------ ----------------------
XXXXX XXXXXXX /s/ Xxxxx X. Xxxxxxx
------------------ ----------------------
XXXXXXX XXXXX /s/ Xxxxxxx Xxxxx
------------------ ----------------------
XXXXXX XXXXXXXX /s/ Xxxxxx X. Xxxxxxxx
------------------ ----------------------
EXHIBIT B
STAR BANK, N.A.
CUSTODY FEE SCHEDULE
FOR THE ASM FUND, INC.
Star Bank, N.A., as Custodian, will receive monthly compensation for services
according to the terms of the following Schedule:
I. PORTFOLIO TRANSACTION FEES:
(a) For each repurchase agreement transaction $ 7.00
(b) For each portfolio transaction processed through
DTC or Federal Reserve $ 7.00
(c) For each portfolio transaction processed through
our New York custodian $25.00
(d) For each GNMA/Amortized Security Purchase $25.00
(e) For each GNMA Prin/Int Paydown, GNMA Sales $ 8.00
(f) For each option/future contract written,
exercised or expired $40.00
(g) For each Cedel/Euro clear transaction $80.00
(h) For each Disbursement (Fund expenses only) $ 5.00
A transaction is a purchase/sale of a security, free receipt/free delivery
(excludes initial conversion), maturity, tender or exchange:
II. MONTHLY MARKET VALUE FEE
------------------------
Based upon Month-end at a rate of: MILLION
-------
.0005 (5 Basis Points) on First $10
.0003 (3 Basis Points) on Next $10
.0002 (2 Basis Points) on Next $20
.0001.5 (1.5 Basis Points) on Balance
III. OUT-OF-POCKET EXPENSES
The only out-of-pocket expenses charged to your account will be shipping fees
or transfer fees.
IV. XXX DOCUMENTS
Per Shareholder/year to hold each XXX Document $8.00
V. EARNINGS CREDITS
On a monthly basis any earnings credits generated from uninvested custody
balances will be applied against any cash management service fees generated.
Earnings credits are
based on the average yield on the 91 day U.S. Treasury Xxxx for the preceding
thirteen weeks less the 10% reserve.
