Exhibit 99.7
CUSTODY AGREEMENT
This AGREEMENT, dated as of 1st day of May, 1998, by and between by and between
The Xxxxxxx Plan (the "Trust"), an open-end diversified investment business
trust organized under the laws of Delaware, and having its officer at 0000
Xxxxxxxxx Xxxxxx, Xxxxxx Xxxx, Xxxxxxx 00000, acting with respect to The Xxxxxxx
Plan and The Xxxxxxx Plan Variable Series (individually, a "Fund" and,
collectively, the "Funds"), each of them a series of the Trust and each of them
operated and administered by the Trust, and STAR BANK, N.A., a national banking
association (the "Custodian").
WHEREAS, the Fund and the Custodian desire to enter into this Agreement to
provide for the custody and safekeeping of the assets of the Fund as required by
the Investment Company Act of 1940, as amended (the "Act").
WHEREAS, the fund hereby appoints the Custodian as custodian for all the Fund's
Securities and moneys at any time owned by the Fund during the term of this
Agreement (the "Fund Assets").
WHEREAS, the Custodian hereby accepts such appointment as Custodian and agrees
to perform the duties thereof as hereinafter set forth.
THEREFORE, in consideration of the mutual promises hereinafter set forth, the
Fund and the Custodian agree as follows:
ARTICLE I
Definitions
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The following words and phrases, when used in this Agreement, unless the context
otherwise requires, shall have the following meanings:
Authorized Person - the Chairman, President, Secretary, Treasurer, Controller,
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or Senior Vice President of the Fund, or any other person, whether to not any
such person is an officer or employee of the Fund, duly authorized by the Board
of Trustees of the Fund to give Oral Instructions and Written Instructions on
behalf of the Fund, and listed in the Certificate annexed hereto as Appendix A,
or such other Certificate as may be received by the Custodian from time to time.
Book-Entry System - the Federal Reserve Bank book-entry system for United States
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Treasury securities and federal agency securities.
Certificate - A written certificate signed by the Secretary of the Fund
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certifying the actions taken by the Board of Trustees.
Depository - The Depository Trust Company ("DTC"), a limited purpose trust
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company its successor(s) and its nominee(s) or any other person or clearing
agent
Dividend and Transfer Agent - the dividend and transfer agent appointed, from
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time to time, pursuant to a written agreement between the dividend and transfer
agent and the Fund
Foreign Securities - a) securities issued and sold primarily outside of the
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United States by a foreign
government, a national of any foreign country, or a trust or other organization
incorporated or organized under the laws of any foreign country or; b)
securities issued or guaranteed by the government of the United States, by any
state, by any political subdivision or agency thereof, or by any entity
organized under the laws of the United States or of any state thereof, which
have been issued and sold primarily outside of the United States.
Money Market Security - debt obligations issued or guaranteed as to principal
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and/or interest by the government of the United States or agencies or
instrumentalities thereof, commercial paper, obligations (including certificates
of deposit, bankers' acceptances, repurchase agreements and reverse repurchase
agreements with respect to the same), and time deposits of domestic banks and
thrift institutions whose deposits are insured by the Federal Deposit Insurance
Corporation, and short-term corporate obligations where the purchase and sale of
such securities normally require settlement in federal funds or their equivalent
on the same day as such purchase and sale, all of which mature in not more than
thirteen (13) months.
Officers - the Chairman, President, Secretary, Treasurer, Controller, and Senior
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Vice President of the Fund listed in the Certificate annexed hereto as Appendix
A, or such other Certificate as may be received by the Custodian from time to
time.
Oral Instructions - verbal instructions received by the Custodian from an
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Authorized Person (or from a person that the Custodian reasonably believes in
good faith to be an Authorized Person) and confirmed by Written Instructions in
such a manner that such Written Instructions are received by the Custodian on
the business day immediately following receipt of such Oral Instructions.
Prospectus - the Fund's then currently effective prospectus and Statement of
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Additional Information, as filed with and declared effective from time to time
by the Securities and Exchange Commission.
Security or Securities - Money Market Securities, common stock, preferred stock,
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options, financial futures, bonds, notes, debentures, corporate debt securities,
mortgages, and any certificates, receipts, warrants, or other instruments
representing rights to receive, purchase, or subscribe for the same or
evidencing or representing any other rights or interest therein, or any property
or assets.
Written Instructions - communication received in writing by the Custodian from
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an Authorized Person.
ARTICLE II
Documents and Notices to be Furnished by the Fund
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A The following documents, including any amendments thereto, will be provided
contemporaneously with the execution of the Agreement, to the Custodian by the
Fund:
1. A copy of the Declaration of Trust of the Fund certified by the Secretary.
2. A copy of the By-Laws of the Fund certified by the Secretary.
3. A copy of the resolution of the Board of Trustees of the Fund appointing the
Custodian, certified by the Secretary.
4. A copy of the then current Prospectus.
5. A Certificate of the President and Secretary of the Fund setting forth the
names and signatures of the Officers of the Fund.
B. The Fund agrees to notify the Custodian in writing of the appointment of any
Dividend and Transfer Agent.
ARTICLE III
Receipt of Fund Assets
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A. During the term of this Agreement, the Fund will deliver or cause to be
delivered to the Custodian all moneys constituting Fund Assets. The Custodian
shall be entitled to reverse any deposits made on the Fund's behalf where such
deposits have been entered and moneys are not finally collected within 30 days
of the making of such entry.
B. During the term of this Agreement, the Fund will deliver or cause to be
delivered to the Custodian all Securities constituting Fund Assets. The
Custodian will not have any duties or responsibilities with respect to such
Securities until actually received by the Custodian.
C. As and when received, the Custodian shall deposit to the account(s) of the
Fund any and all payments for shares of the Fund issued or sold from time to
time as they are received from the Fund's distributor or Dividend and Transfer
Agent or from the Fund itself
ARTICLE IV
Disbursement of Fund Assets
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A. The Fund shall furnish to the Custodian a copy of the resolution of the Board
of Trustees of the Fund, certified by the Fund's Secretary, either (i) setting
forth the date of the declaration of any dividend or distribution in respect of
shares of the Fund, the date of payment thereof, the record date as of which
Fund shareholders entitled to payment shall be determined, the amount payable
per share to Fund shareholders of record as of that date, and the total amount
to be paid by the Dividend and Transfer Agent on the payment date, or (ii)
authorizing the declaration of dividends and distributions in respect of shares
of the Fund on a daily basis and authorizing the Custodian to rely on a
Certificate setting forth the date of the declaration of any such dividend or
distribution, the date of payment thereof, the record date as of which Fund
shareholders entitled to payment shall be determined, the amount payable per
share to Fund shareholders of record as of that date, and the total amount to be
paid by the Dividend and Transfer Agent on the payment date.
On the payment date specified in such resolution or Certificate described above,
the Custodian shall segregate such amounts from moneys held for the account of
the Fund so that they are available for such payment.
B. Upon receipt of Written Instructions so directing it, the Custodian shall
segregate amounts necessary for the payment of redemption proceeds to be made by
the Dividend and Transfer Agent from moneys held for the account of the Fund so
that they are available for such payment.
C. Upon receipt of a Certificate directing payment and setting forth the name
and address of the person to whom such payment is to be made, the amount of such
payment, and the purpose for which payment is to be made, the Custodian shall
disburse amounts as and when directed from the Fund Assets. The Custodian is
authorized to rely on such directions and shall be under no obligation to
inquire as to the
propriety of such directions.
D. Upon receipt of a Certificate directing payment, the Custodian shall disburse
moneys from the Fund Assets in payment of the Custodian's fees and expenses as
provided in Article VIII hereof
E. If the amount of cash in the account(s) of the Fund is insufficient to pay
when due the amount of any dividend, redemption or other payment pursuant to
paragraph A, B or C of this Article IV or the purchase price of Securities
pursuant to Article VI, the Custodian may, in its sole discretion but subject to
the limitation described later in this paragraph, advance the amount of the
difference in order to make such payment (in each case, an "Advance" and,
collectively, the "Advances"). The amount of each Advance shall be deemed a loan
from the Custodian to the Fund payable on demand and bearing interest accruing
from the date such Advance is made up to but not including the date such Advance
is repaid at the rate per annum customarily charged by the Custodian on similar
loans. The Custodian shall not make any Advance if, as a result thereof, the
amount of outstanding Advances would exceed the Fund's borrowing limitations set
forth in the Fund's then current Prospectus. If any Advance, plus accrued and
unpaid interest thereon, is not repaid by the Fund when due, the Custodian shall
be entitled to charge the amount due against any money held by it for the
account of the Fund and, as necessary, sell Securities and use the proceeds
thereof to repay such amount.
ARTICLE V
Custody of Fund Assets
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A. The Custodian shall open and maintain a separate bank account or accounts in
the United States in the name of the Fund, subject only to draft or order by the
Custodian acting pursuant to the terms of this Agreement, and shall hold all
cash received by it from or for the account of the Fund, other than cash
maintained by the Fund in a bank account established and used by the Fund in
accordance with Rule 17f-3 under the Act. Moneys held by the Custodian on behalf
of the Fund may be deposited by the Custodian to its credit as Custodian in the
banking department of the Custodian. Such moneys shall be deposited by the
Custodian in its capacity as such, and shall be withdrawable by the Custodian
only in such capacity.
B. The Custodian shall hold all Securities delivered to it in safekeeping in a
separate account or accounts maintained at Star Bank, N.A. for the benefit of
the Fund.
C. All Securities held which are issued or issuable only in bearer form, shall
be held by the Custodian in that form; all other Securities held for the Fund
shall be registered in the name of the Custodian or its nominee. The Fund agrees
to furnish to the Custodian appropriate instruments to enable the Custodian to
hold, or deliver in proper form for transfer, any Securities that it may hold
for the account of the Fund and which may, from time to time, be registered in
the name of the Fund.
D. With respect to all Securities held for the Fund, the Custodian shall on a
timely basis (concerning items 1 and 2 below, as defined in the Custodian's
Standards of Service Guide, as amended from time to time, annexed hereto as
Appendix C):
1.) Collect all income due and payable with respect to such Securities;
2.) Present for payment and collect amounts payable upon all Securities which
may mature or be called, redeemed, or retired, or otherwise become payable;
3.) Surrender Securities in temporary form for definitive Securities; and
4.) Execute, as agent, any necessary declarations or certificates of ownership
under the Federal income tax laws or the laws or regulations of any other
taxing authority, including any foreign taxing authority, now or hereafter
in effect.
E. Upon receipt of a Certificate and not otherwise, the Custodian shall:
1.) Execute and deliver to such persons as may be designated in such
Certificate proxies, consents, authorizations, and any other instruments
whereby the authority of the Fund as beneficial owner of any Securities may
be exercised;
2.) Deliver any Securities in exchange for other Securities or cash issued or
paid in connection with the liquidation, reorganization, refinancing,
merger, consolidation, or recapitalization of any trust, or the exercise of
any conversion privilege;
3.) Deliver any Securities to any protective committee, reorganization
committee, or other person in connection with the reorganization,
refinancing, merger, consolidation, recapitalization, or sale of assets of
any trust, and receive and hold under the terms of this Agreement such
certificates of deposit, interim receipts or other instruments or documents
as may be issued to it to evidence such delivery;
4.) Make such transfers or exchanges of the assets of the Fund and take such
other steps as shall be stated in said Certificate to be for the purpose of
effectuating any duly authorized plan of liquidation, reorganization,
merger, consolidation or recapitalization of the Fund; and
5.) Deliver any Securities held for the Fund to the depository agent for tender
or other similar offers. F. The Custodian shall promptly deliver to the
Fund all notices, proxy material and executed but unvoted proxies
pertaining to shareholder meetings of Securities held by the Fund. The
Custodian shall not vote or authorize the voting of any Securities or give
any consent, waiver or approval with respect thereto unless so directed by
a Certificate or Written Instruction.
G. The Custodian shall promptly deliver to the Fund all information received by
the Custodian and pertaining to Securities held by the Fund with respect to
tender or exchange offers, calls for redemption or purchase, or expiration of
rights.
ARTICLE VI
Purchase and Sale of Securities
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A. Promptly after each purchase of Securities by the Fund, the Fund shall
deliver to the Custodian (i) with respect to each purchase of Securities which
are not Money Market Securities, Written Instructions, and (ii) with respect to
each purchase of Money Market Securities, Written Instructions or Oral
Instructions, specifying with respect to each such purchase the;
1.) name of the issuer and the title of the Securities,
2.) principal amount purchased and accrued interest, if any,
3.) date of purchase and settlement,
4.) purchase price per unit,
5.) total amount payable, and
6.) name of the person from whom, or the broker through which, the
purchase was made.
The Custodian shall, against receipt of Securities purchased by or for the Fund,
pay out of the Fund Assets, the total amount payable to the person from whom or
the broker through which the purchase was made, provided that the same conforms
to the total amount payable as set forth in such Written Instructions or Oral
Instructions, as the case may be.
B. Promptly after each sale of Securities by the Fund, the Fund shall deliver to
the Custodian (i) with respect to each sale of Securities which are not Money
Market Securities, Written Instructions, and (ii) with respect to each sale of
Money Market Securities, Written Instructions or Oral Instructions, specifying
with respect to each such sale the;
1.) name of the issuer and the title of the Securities,
2.) principal amount sold and accrued interest, if any,
3.) date of sale and settlement,
4.) sale price per unit,
5.) total amount receivable, and
6.) name of the person to whom, or the broker through which, the sale was
made.
The Custodian shall deliver the Securities against receipt of the total amount
receivable, provided that the same conforms to the total amount receivable as
set forth in such Written Instructions or Oral Instructions, as the case may be.
C. On contractual settlement date, the account of the Fund will be charged for
all purchased Securities settling on that day, regardless of whether or not
delivery is made. Likewise, on contractual settlement date, proceeds from the
sale of Securities settling that day will be credited to the account of the
Fund, irrespective of delivery.
D. Purchases and sales of Securities effected by the Custodian will be made on a
delivery versus payment basis. The Custodian may, in its sole discretion, upon
receipt of a Certificate, elect to settle a purchase or sale transaction in some
other manner, but only upon receipt of acceptable indemnification from the Fund.
E. The Custodian shall, upon receipt of a Written Instructions so directing it,
establish and maintain a segregated account or accounts for and on behalf of the
Fund. Cash and/or Securities may be transferred into such account or accounts
for specific purposes, to-wit:
1.) in accordance with the provision of any agreement among the Fund, the
Custodian, and a broker-dealer registered under the Securities and
Exchange Act of 1934, as amended, and also a member of the National.
Association of Securities Dealers (NASD) (or any futures commission
merchant registered under the Commodity Exchange Act), relating to
compliance with the rules of the Options Clearing Corporation and of
any registered national securities exchange, the Commodity Futures
Trading Commission, any registered contract market, or any similar
organization or organizations requiring escrow or other similar
arrangements in connection with transactions by the Fund;
2.) for purposes of segregating cash or government securities in
connection with options purchased, sold, or written by the Fund or
commodity futures contracts or options thereon purchased or sold by
the Fund;
3.) for the purpose of compliance by the fund with the procedures required
for reverse repurchase agreements, firm commitment agreements, standby
commitment agreements, and short sales by Act Release No. 10666, or
any subsequent release or releases or rule of the Securities and
Exchange Commission relating to the maintenance of segregated accounts
by and
4.) for other corporate purposes, only in the case of this clause 4 upon
receipt of a copy of a resolution of the Board of Trustees of the
Fund, certified by the Secretary of the Fund, setting forth the
purposes of such segregated account.
F. Except as otherwise may be agreed upon by the parties hereto, the Custodian
shall not be required to comply with any Written Instructions to settle the
purchase of any Securities on behalf of the Fund unless there is sufficient cash
in the account(s) at the time or to settle the sale of any Securities from an
account(s) unless such Securities are in deliverable form.
ARTICLE VII
Fund Indebtedness
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In connection with any borrowings by the Fund, the Fund will cause to be
delivered to the Custodian by a bank or broker requiring Securities as
collateral for such borrowings (including the Custodian if the borrowing is from
the Custodian), a notice or undertaking in the form currently employed by such
bank or broker setting forth the amount of collateral. The Fund shall promptly
deliver to the Custodian a Certificate specifying with respect to each such
borrowing: (a) the name of the bank or broker, (b) the amount and terms of the
borrowing, which may be set forth by incorporating by reference an attached
promissory note duly endorsed by the Fund, or a loan agreement, (c) the date,
and time if known, oil which the loan is to be entered into, (d) the date on
which the loan becomes due and payable, (e) the total amount payable to the Fund
on the borrowing date, and (f) the description of the Securities securing the
loan, including the name of the issuer, the title and the number of shares or
the principal amount. The Custodian shall deliver on the borrowing date
specified in the Certificate the required collateral against the lender's
delivery of the total loan amount then payable, provided that the same conforms
to that which is described in the Certificate. The Custodian shall deliver, in
the manner directed by the Fund, such Securities as additional collateral, as
may be specified in a Certificate, to secure further any transaction described
in this Article VII. The Fund shall cause all Securities released from
collateral status to be returned directly to the Custodian and the Custodian
shall receive from time to time such return of collateral as may be tendered to
it.
The Custodian may, at the option of the lender, keep such collateral in its
possession, subject to all rights therein given to the lender because of the
loan. The Custodian may require such reasonable conditions regarding such
collateral and its dealings with third-party lenders as it may deem appropriate.
ARTICLE VIII
Concerning the Custodian
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A. Except as otherwise provided herein, the Custodian shall not be liable for
any loss or damage resulting from its action or omission to act or otherwise,
except for any such loss or damage arising out of its own gross negligence or
willful misconduct. The Fund shall defend, indemnify and hold harmless the
Custodian and its Trustees, officers, employees and agents with respect to any
loss, claim, liability or cost (including reasonable attorneys' fees) arising or
alleged to arise from or relating to the Fund's duties hereunder or any other
action or inaction of the Fund or its Trustees, officers, employees or
agents, except such as may arise from the negligent action, omission, willful
misconduct or breach of this Agreement by the Custodian. The Custodian may, with
respect to questions of law, apply for and obtain the advice and opinion of
counsel, at the expense of the Fund, and shall be fully protected with respect
to anything done or omitted by it in good faith in conformity with the advice or
opinion of counsel. The provisions under this paragraph shall survive the
termination of this Agreement.
B. Without limiting the generality of the foregoing, the Custodian, acting in
the capacity of Custodian hereunder, shall be under no obligation to inquire
into, and shall not be liable for:
1.) The validity of the issue of any Securities purchased by or for the
account of the Fund, the legality of the purchase thereof, or the
propriety of the amount paid therefore;
2.) The legality of the sale of any Securities by or for the account of
the Fund, or the propriety of the amount for which the same are sold;
3.) The legality of the issue or sale of any shares of the Fund, or the
sufficiency of the amount to be received therefore;
4.) The legality of the redemption of any shares of the Fund, or the
propriety of the amount to be paid therefore;
5.) The legality of the declaration or payment of any dividend by the Fund
in respect of shares of the Fund;
6.) The legality of any borrowing by the Fund on behalf of the Fund, using
Securities as collateral;
C. The Custodian shall not be under any duty or obligation to take action to
effect collection of any amount due to the Fund from any Dividend and Transfer
Agent of the Fund nor to take any action to effect payment or distribution by
any Dividend and Transfer Agent of the Fund of any amount paid by the Custodian
to any Dividend and Transfer Agent of the Fund in accordance with this
Agreement.
D. Notwithstanding Section D of Article V. the Custodian shall not be under any
duty or obligation to take action to effect collection of any amount, if the
Securities upon which such amount is payable are in default, or if payment is
refused after due demand or presentation, unless and until (i) it shall be
directed to take such action by a Certificate and (ii) it shall be assured to
its satisfaction (including prepayment thereof) of reimbursement of its costs
and expenses in connection with any such action.
E. The Fund acknowledges and hereby authorizes the Custodian to hold Securities
through its various agents described in Appendix B annexed hereto. The Fund
hereby represents that such authorization has been duly approved by the Board of
Trustees of the Fund as required by the Act. The Custodian acknowledges that
although certain Fund Assets are held by its agents, the Custodian remains
primarily liable for the safekeeping of the Fund Assets.
In addition, the Fund acknowledges that the Custodian may appoint one or more
financial institutions, as agent or agents or as sub-custodian or
sub-custodians, including, but not limited to, banking institutions located in
foreign countries, for the purpose of holding Securities and moneys at any time
owned by the Fund. The Custodian shall not be relieved of any obligation or
liability under this Agreement in connection with the appointment or activities
of such agents or sub-custodians. Any such agent or sub-custodian shall be
qualified to serve as such for assets of investment companies registered
under the Act. Upon request, the Custodian shall promptly forward to the Fund
any documents it receives from any agent or sub-custodian appointed hereunder
which may assist trustees of registered investment companies fulfill their
responsibilities under Rule 17f-5 of the Act.
F. The Custodian shall not be under any duty or obligation to ascertain whether
any Securities at any time delivered to or held by it for the account of the
Fund are such as properly may be held by the Fund under the provisions of the
Declaration of Trust and the Fund's By-Laws.
G. The Custodian shall treat all records and other information relating to the
Fund and the Fund Assets as confidential and shall not disclose any such records
or information to any other person unless (i) the Fund shall have consented
thereto in writing or (ii) such disclosure is required by law.
H. The Custodian shall be entitled to receive and the Fund agrees to pay to the
Custodian such compensation as shall be determined pursuant to Appendix D
attached hereto, or as shall be determined pursuant to amendments to such
Appendix D. The Custodian shall be entitled to charge against any money held by
it for the account of the Fund, the amount of any of its fees, that are not paid
when due and the amount of any loss, damage, liability or expense, including
counsel fees for which the Custodian is indemnified by, or entitled to
reimbursement from, the Fund pursuant to this Agreement. The expenses which the
Custodian may charge against the account of the Fund include, but are not
limited to, the expenses of agents or sub-custodians incurred in settling
transactions involving the purchase and sale of Securities of the Fund.
I. The Custodian shall be entitled to rely upon any Oral Instructions and any
Written Instructions. The Fund agrees to forward to the Custodian Written
Instructions confirming Oral Instructions in such a manner so that such Written
Instructions are received by the Custodian, whether by hand delivery, facsimile
or otherwise, on the same business day on which such Oral Instructions were
given. The Fund agrees that the failure of the Custodian to receive such
confirming instructions shall in no way affect the validity of the transactions
or enforceability of the transactions hereby authorized by the Fund. The Fund
agrees that the Custodian shall incur no liability to the Fund for acting upon
Oral Instructions given to the Custodian hereunder concerning such transactions.
J. The Custodian will (i) set up and maintain proper books of account and
complete records of all transactions in the accounts maintained by the Custodian
hereunder in such manner as will meet the obligations of the Fund under the Act,
with particular attention to Section 31 thereof and Rules 3 1a-1 and 31 a-2
thereunder and those records are the property of the Fund, and (ii) preserve for
the periods prescribed by applicable Federal statute or regulation all records
required to be so preserved. All such books and records shall be the property of
the Fund, and shall be open to inspection and audit at reasonable times and with
prior notice by Officers and auditors employed by the Fund.
K. The Custodian shall send to the Fund any report received on the systems of
internal accounting control of the Custodian, or its agents or sub-custodians,
as the Fund may reasonably request from time to time.
L. The Custodian performs only the services of a custodian and shall have no
responsibility for the management, investment or reinvestment of the Securities
from time to time owned by the Fund. The Custodian is not a selling agent for
shares of the Fund and performance of its duties as custodian shall not be
deemed to be a recommendation to the Fund's depositors or others of shares of
the Fund as an investment.
M. The Custodian shall take all reasonable action, that the Fund may from time
to time request, to assist the Fund in obtaining favorable opinions from the
Fund's independent accountants, with respect to the Custodian's activities
hereunder, in connection with the preparation of the Fund's Form N-lA, Form
N-SA.R, or other annual reports to the Securities and Exchange Commission.
ARTICLE IX
Force Majeure
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Neither the Custodian nor the Trust shall be liable for any failure or delay in
performance of its obligations under this Agreement arising out of or caused,
directly or indirectly, by circumstances beyond its reasonable control,
including, without limitation, acts of God; earthquakes; fires; floods; wars;
civil or military disturbances; sabotage; strikes; epidemics; riots; labor
disputes; acts of civil or military authority; governmental actions; or
inability to obtain labor, material, equipment or transportation; provided,
however, that the Custodian, in the event of a failure or delay, shall use its
best efforts to ameliorate the effects of such failure or delay.
ARTICLE X
Termination
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A. Either of the parties hereto may terminate this Agreement for any reason by
giving to the other party a notice in writing specifying the date of such
termination, which shall be not less than ninety (90) days after the date of
giving of such notice. If such notice is given by the Fund, it shall be
accompanied by a copy of a resolution of the Board of Trustees of the Fund,
certified by the Secretary of the Fund, electing to terminate this Agreement and
designating a successor custodian or custodians. In the event such notice is
given by the Custodian, the Fund shall, on or before the termination date,
deliver to the Custodian a copy of a resolution of the Board of Trustees of the
Fund, certified by the Secretary, designating a successor custodian or
custodians to act on behalf of the Fund. In the absence of such designation by
the Fund, the Custodian may designate a successor custodian which shall be a
bank or trust company having not less than $100,000,000 aggregate capital,
surplus, and undivided profits. Upon the date set forth in such notice this
Agreement shall terminate, and the Custodian, provided that it has received a
notice of acceptance by the successor custodian, shall deliver, on that date,
directly to the successor custodian all Securities and moneys then owned by the
Fund and held by it as Custodian. Upon termination of this Agreement, the Fund
shall pay to the Custodian on behalf of the Fund such compensation as may be due
as of the date of such termination. The Fund agrees on behalf of the Fund that
the Custodian shall be reimbursed for its reasonable costs in connection with
the termination of this Agreement.
B. If a successor custodian is not designated by the Fund, or by the Custodian
in accordance with the preceding paragraph, or the designated successor cannot
or will not serve, the Fund shall, upon the delivery by the Custodian to the
Fund of all Securities (other than Securities held in the Book-Entry System
which cannot be delivered to the Fund) and moneys then owned by the Fund, be
deemed to be the custodian for the Fund, and the Custodian shall thereby be
relieved of all duties and responsibilities pursuant to this Agreement, other
than the duty with respect to Securities held in the Book-Entry System, which
cannot be delivered to the Fund, which shall be held by the Custodian in
accordance with this Agreement.
ARTICLE XI
Miscellaneous
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A. Appendix A sets forth the names and the signatures of all Authorized Persons,
as certified by the Secretary of the Fund. The Fund agrees to furnish to the
Custodian a new Appendix A in form similar to the attached Appendix A, if any
present Authorized Person ceases to be an Authorized Person or if any other or
additional Authorized Persons are elected or appointed. Until such new Appendix
A shall be received, the Custodian shall be fully protected in acting under the
provisions of this Agreement upon Oral Instructions or signatures of the then
current Authorized Persons as set forth in the last delivered Appendix A.
B. No recourse under any obligation of this Agreement or for any claim based
thereon shall be had against any organizer, shareholder, Officer, Trustee, past,
present or future as such, of the Fund or of any predecessor or successor,
either directly or through the Fund or any such predecessor or successor,
whether by virtue of any constitution, statute or rule of law or equity, or be
the enforcement of any assessment or penalty or otherwise; it being expressly
agreed and understood that this Agreement and the obligations thereunder are
enforceable solely against the Fund, and that no such personal liability
whatever shall attach to, or is or shall be incurred by, the organizers,
shareholders, Officers, Trustees of the Fund or of any predecessor or successor,
or any of them as such. To the extent that any such liability exists, it is
hereby expressly waived and released by the Custodian as a condition of, and as
a consideration for, the execution of this Agreement.
C. The obligations set forth in this Agreement as having been made by the Fund
have been made by the Board of Trustees, acting as such Trustees for and on
behalf of the Fund, pursuant to the authority vested in them under the laws of
the State of Delaware, the Declaration Of Trust and the By-Laws of the Fund.
This Agreement has been executed by Officers of the Fund as officers, and not
individually, and the obligations contained herein are not binding upon any of
the Trustees, Officers, agents or holders of shares, personally, but bind only
the Fund.
D. Provisions of the Prospectus and any other documents (including advertising
material) specifically mentioning the Custodian (other than merely by name and
address) shall be reviewed with the Custodian by the Fund prior to publication
and/or dissemination or distribution, and shall be subject to the consent of the
Custodian.
E. Any notice or other instrument in writing, authorized or required by this
Agreement to be given to the Custodian, shall be sufficiently given if addressed
to the Custodian and mailed or delivered to it at its offices at Star Bank
Center, 000 Xxxxxx Xxxxxx,
X. X. 0000, Xxxxxxxxxx, Xxxx 00000, attention Mutual Fund Custody Department, or
at such other place as the Custodian may from time to time designate in writing.
F. Any notice or other instrument in writing, authorized or required by this
Agreement to be given to the Fund shall be sufficiently given when delivered to
the Fund or on the second business day following the time such notice is
deposited in the U.S. mail postage prepaid and addressed to the Fund at its
office at 0000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxx Xxxx, Xxxxxxx 00000 or at such
other place as the Fund may from time to time designate in writing.
G. This Agreement, with the exception of the Appendices, may not be amended or
modified in any manner except by a written agreement executed by both parties
with the same formality as this Agreement, and authorized and approved by a
resolution of the Board of Trustees of the Fund.
H. This Agreement shall extend to and shall be binding upon the parties hereto,
and their respective successors and assigns; provided, however, that this
Agreement shall not be assignable by the Fund or by the Custodian, and no
attempted assignment by the Fund or the Custodian shall be effective without the
written consent of the other party hereto.
I. This Agreement shall be construed in accordance with the laws of the State of
Ohio.
J. This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, but such counterparts shall, together,
constitute only one instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective Officers, thereunto duly authorized as of the day and year
first above written.
APPENDIX B
The following agents are employed currently by Star Bank, N.A. for
securities processing and control...
The Depository Trust Company (New York)
0 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
The Federal Reserve Bank
Cincinnati and Cleveland Branches
Bankers Trust Company
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
(For Foreign Securities and certain non-DTC eligible Securities)
APPENDIX C
Standards of Service Guide
Standards of Service Guide
STAR BANK, N.A.
MAIL LOCATION #6118,
000 XXXXXX XXXXXX,
XXXXXXXXXX, XX 00000
October, 1997
Star Bank, N.A.
Standards of Service Guide
Star Bank, N.A. is committed to providing superior quality service to all
customers and their agents at all times. We have compiled this guide as a tool
for our clients to determine our standards for the processing of security
settlements, payment collection, and capital change transactions. Deadlines
recited in this guide represent the times required for Star Bank to guarantee
processing. Failure to meet these deadlines will result in settlement at our
client's risk. In all cases, Star Bank will make every effort to complete all
processing on a timely basis.
Star Bank is a direct participant of the Depository Trust Company, a direct
member of the Federal Reserve Bank of Cleveland, and utilizes the Bankers Trust
Company as its agent for ineligible and foreign securities.
For corporate reorganizations, Star Bank utilizes SEI's Reorg Source, Financial
information, Inc., XCITEK, DTC Important Notices, and the Wall Street Journal.
-------------------
For bond calls and mandatory puts, Star Bank utilizes SEI's Bond Source, Xxxxx
Information Systems, Standard & Poor's Corporation, and DTC Important Notices.
Star Bank will not notify clients of optional put opportunities.
Any securities delivered free to Star Bank or its agents must be received three
(3) business days prior to any payment or settlement in order for the Star Bank
standards of service to apply.
Should you have any questions regarding the information contained in this guide,
please feel free to contact your account representative.
The information contained in this Standards of Service Guide is subject to
change. Should any changes be made Star Bank will provide you with an updated
copy of its Standards of Service Guide.
Star Bank Payment Standards
Security Type Income Principal
Equities Payable Date
Municipal Bonds* Payable Date Payable Date
Corporate Bonds* Payable Date Payable Date
Federal Reserve Bank Book Entry* Payable Date Payable Date
PTC GNMA's (P&I) Payable Date + 1 Payable Date + 1
CMOs *
DTC Payable Date + 1 Payable Date + 1
Bankers Trust Payable Date + 1 Payable Date + 1
SBA Loan Certificates When Received When Received
Unit Investment Trust Certificates* Payable Date Payable Date
Certificates of Deposit* Payable Date + 1 Payable Date + 1
Limited Partnerships When Received When Received
Foreign Securities When Received When Received
*Variable Rate Securities
Federal Reserve Bank Book Entry Payable Date Payable Date
DTC Payable Date + 1 Payable Date + 1
Bankers Trust Payable Date + 1 Payable Date + 1
NOTE: If a payable date falls on a weekend or bank holiday, payment will be made
on the immediately following business day.
Star Bank Security Settlement Standards
Transaction Type Instructions Deadliness Delivery Instructions
DTC 1:30 P.M. on Settlement Date DTC Participant #00 00
Xxxxx Xxxx XX 00000
Institutional #________________
For Account #___________
Federal Reserve Book Entry 12:30 P.M. on Settlement Date Federal Reserve Bank of Cinti/Trust
for Star Bank, N.A. ABA# 000000000
For Account #_____________
Federal Reserve Book Entry 1:00 P.M. on Settlement Date Federal Reserve Bank of Cinti/Spec
(Repurchase Agreement for Star Bank, N.A. ABA# 000000000
Collateral Only) For Account #____________
PTC Securities 12:00 P.M. on Settlement Date PTC For Account BTRST/CUST Sub
(GNMA Book Entry) Account: Star Bank, N.A. #090334
Physical Securities 9:30 A.M. EST on Settlement Date (for Bankers Trust Company
Deliveries, by 4:00 P.M. on Settlement Date 00 Xxxx Xxxxxx 0xx Xxxxx, Window 43
minus 1) for Star Bank Account #090334
CEDEL/EURO-CLEAR 11:00 A.M. on Settlement Date minus 2 Euroclear Via Cedel Bridge
In favor of Bankers Trust Comp Cedel
53355
For Star Bank Account #501526354
Cash Wire Transfer 3:00 P.M. Star Bank, X.X. Xxxxx/Trust ABA#
042000013
Credit Account #0000000
Further Credit to________
Account #
*All times listed are Eastern Standard Time.
Star Bank; N.A.
Proposed Domestic Custody Fee Schedule for Xxxxxxx Fund
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 $9.00
(c) For each portfolio transaction processed through
our New York custodian $25.00
(d) For each GNMA/Amortized Security Purchase $16.00
(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. Market Value Fee
Based upon an annual rate of: Million
000120(1.20 Basis Points) on First $ 75
00010(1.0 Basis Point) on Next $100
000075 (.75 Basis Points) on Balance
III Monthly Minimum Fee-Per Fund $225.00
IV. Out-of-Pocket Expenses
The only out-of-pocket expenses charged to your account will be
shipping fees or transfer fees.
V. XXX Documents
Per Shareholder/year to hold each XXX Document $8.00
VI. Earnings Credits
On a monthly basis any earnings credits generated from uninvested
custody balances will be applied against any cash management service
fees generated. Earnings credits are based on a Cost of Funds Tiered
Earnings Credit Rate.
Star Bank
Proposed Cash Management Fee Schedule for Xxxxxxx Fund
Services Unit Cost ($) Monthly Cost ($)
D.D.A. Account Maintenance 14.00
Deposits .399
Deposited Items .109
Checks Paid .159 .
Balance Reporting - P.C. Access 50.00 1st Acct
35.00 each add'l
ACH Transaction .105
ACH Monthly Maintenance 40.00
ACH Additions, Deletions, Changes 3.50
ACH Debits .12
Controlled Disbursement (1st account) 110.00
Each additional account 25.00
Deposited Items Returned 6.00
International Items Returned 10.00
NSF Returned Checks 25.00
Stop Payments 22.00
Data Transmission per account 110.00
Data Capture* .10
Drafts Cleared .179
Lockbox Maintenance** 55.00
Lockbox items Processed
with copy of check .32
without copy of check .26
Checks Printed .20
Positive Pay .06
Issued Items .015
ARP Tape/Transmission/Diskette 25.00
Special Statements 6.00
Invoicing for Service Charge 15.00
Wires Incoming
Domestic 10.00
International 10.00
Wires Outgoing
Domestic International
Repetitive 12.00 Repetitive 35.00
Non-Repetitive 13.00 Non-Repetitive 40.00
PC - Initiated Wires:
Domestic International
Repetitive 9.00 Repetitive 25.00
Non-Repetitive 9.00 Non-Repetitive 25.00
*** Uncollected Charge Star Bank Prime Rate as of first of month plus 4%
* Price can vary depending upon what information needs to be captured
** With the use of lockbox, the collected balance in the demand deposit
account will be significantly increased and therefore earnings to
offset cash management service fees will be maximized
*** Fees for uncollected balances are figured on the monthly average of all
combined accounts.
**** Other available cash management services are priced separately.
Revised October, 1997
