Exhibit 8
FORM OF
CUSTODY AGREEMENT
AGREEMENT dated as of February 4, 1997 between St. Clair
Funds, Inc. ("St. Clair"), a Maryland Corporation with its
principal place of business at 000 Xxxxxx Xxxxxx, Xxxxxxxxxx, XX
00000, on behalf of the investment portfolios of St. Clair
identified on Schedule A attached hereto (which may be amended
from time to time by attaching to Schedule A a revised list of
portfolios, dated and signed by an authorized representative of
each party hereto) (individually, a "Fund" and collectively, the
"Funds"), and Comerica Bank (the "Custodian"), a Michigan banking
corporation and a wholly-owned subsidiary of Comerica
Incorporated, with its principal place of business at One Detroit
Center, 000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx.
W I T N E S S E T H:
That for and in consideration of the mutual promises
hereinafter set forth, St. Clair and the Custodian agree as
follows:
1. Definitions.
Whenever used in this Agreement or in any Schedules to this
Agreement, the following words and phrases, unless the context
otherwise requires, shall have the following meanings:
(a) "Authorized Person" shall be deemed to include the Chairman
of the Board of Directors, the President, and any Vice President,
the Secretary, the Treasurer or any other person, whether or not
any such person is an officer or employee of St. Clair, duly
authorized by the Board of Directors of St. Clair to give Oral
Instructions and Written Instructions on behalf of a Fund and
listed in the certification annexed hereto as Appendix A or such
other certification as may be received by the Custodian from time
to time.
(b) "Book-Entry System" shall mean the Federal Reserve/Treasury
book-entry system for United States and federal agency securities,
its successor or successors and its nominee or nominees.
(c) "Certificate" shall mean any notice, instruction or other
instrument in writing, authorized or required by this Agreement to
be given to the Custodian, which is actually received by the
Custodian and signed on behalf of St. Clair by any two Authorized
Persons or any two officers thereof.
(d) "Articles of Incorporation" shall mean the Articles of
Incorporation of St. Clair filed with the State of Maryland -
Department of Assessments and Taxation on May 23, 1984 as now in
effect and as the same may be amended from time to time.
(e) "Depository" shall mean The Depository Trust Company
("DTC"), a clearing agency registered with the Securities and
Exchange Commission under Section 17(a) of the Securities Exchange
Act of 1934, as amended, its successor or successors and its
nominee or nominees, in which the Custodian is hereby specifically
authorized to make deposits. The term "Depository" shall further
mean and include any other person to be named in a Certificate
authorized to act as a depository under the 1940 Act, its
successor or successors and its nominee or nominees.
(f) "Money Market Security" shall be deemed to include, without
limitation, debt obligations issued or guaranteed as to interest
and principal by the Government of the United States or agencies
or instrumentalities thereof, commercial paper, bank certificates
of deposit, bankers' acceptances and short-term corporate
obligations, where the purchase or sale of such securities
normally requires settlement in federal funds on the same day as
such purchase or sale, and repurchase and reverse repurchase
agreements with respect to any of the foregoing types of
securities.
(g) "Oral Instructions" shall mean verbal instructions actually
received by the Custodian from a person reasonably believed by the
Custodian to be an Authorized Person.
(h) "Prospectus" shall mean a Fund's current prospectus and
statement of additional information relating to the registration
of the Fund's Shares under the Securities Act of 1933, as amended.
(i) "Shares" refers to the shares of beneficial interest $.001
par value per share of a Fund, as may be issued by the Fund from
time to time.
(j) "Security" or "Securities" shall be deemed to include bonds,
debentures, notes, stocks, shares, evidences of indebtedness,
options and other securities, commodity interests and investments,
including currency, from time to time of a Fund, including futures
contracts, forward contracts and options on futures contracts and
forward contracts.
(k) "Transfer Agent" shall mean the person which performs as the
transfer agent, dividend disbursing agent and shareholder
servicing agent functions for St. Clair.
(l) "Written Instructions" shall mean a written communication
actually received by the Custodian signed by two Authorized
Persons or from two persons reasonably believed by the Custodian
to be Authorized Persons by telex or facsimile machine or any
other such system whereby the receiver of such communication is
able to verify through codes or otherwise with a reasonable degree
of certainty the authenticity of the sender of such communication;
however, "Written Instructions" from St. Clair's Administrator,
First Data Investor Services Group, Inc., to the Custodian shall
mean an electronic communication transmitted by fund accountants
and their managers (who have been provided an access code by the
Administrator) and actually received by the Custodian.
(m) The "1940 Act" refers to the Investment Company Act of 1940,
and the rules and regulations thereunder, all as amended from time
to time.
2. Appointment of Custodian.
(a) St. Clair hereby constitutes and appoints the Custodian as
custodian of all the Securities and monies at the time owned by or
in the possession of the Funds during the period of this
Agreement.
(b) The Custodian hereby accepts appointment as such custodian
and agrees to perform the duties thereof as hereinafter set forth.
(c) The Custodian understands and acknowledges that St. Clair
intends to issue Shares of separate series and classes, and may
classify and reclassify Shares of such series and classes. The
Custodian shall identify to each such series or class the property
belonging to such series or class and in such reports,
confirmations and notices to St. Clair called for under this
Agreement shall identify the series or class to which such report,
confirmation or notice pertains. In the event St. Clair
establishes one or more portfolios other than the Funds with
respect to which St. Clair wishes to retain the Custodian to act
as custodian, St. Clair shall so notify the Custodian in writing.
If the Custodian is willing to render such services, the Custodian
shall notify St. Clair in writing whereupon each such portfolio
shall be deemed to be a Fund hereunder.
3. Compensation.
(a) St. Clair will compensate the Custodian for its services
rendered under this Agreement in accordance with the fees set
forth in the Fee Schedule annexed hereto as Schedule B and
incorporated herein.
(b) Any compensation agreed to hereunder may be adjusted from
time to time by attaching to Schedule B of this Agreement a
revised Fee Schedule, dated and signed by an Authorized Officer or
authorized representative of each party hereto.
(c) The Custodian will xxxx St. Clair as soon as practicable
after the end of each calendar month, and said xxxxxxxx will be
detailed in accordance with the Fee Schedule for St. Clair. St.
Clair will promptly pay to the Custodian the amount of such
billing. The Custodian may charge against any monies held on
behalf of a Fund pursuant to this Agreement such compensation and
any expenses incurred by the Custodian (and reimbursable by the
Fund) in the performance of its duties pursuant to this Agreement.
The Custodian shall also be entitled to charge against any money
held on behalf of a Fund pursuant to this Agreement the amount of
any loss, damage, liability or expense incurred with respect to
the Fund, including reasonable counsel fees, for which it shall be
entitled to reimbursement under the provisions of this Agreement.
The expenses which the Custodian may charge against such
account include, but are not limited to, the expenses of Sub-
Custodians and foreign branches of the Custodian incurred in
settling transactions outside of Detroit, Michigan or New York
City, New York involving the purchase and sale of Securities.
(d) Each Fund will use reasonable efforts to avoid cash
overdrafts in its account and will provide offsetting balances
with respect to any cash overdrafts that may occur from time to
time.
4. Custody of Cash and Securities.
(a) Receipt and Holding of Assets.
St. Clair will deliver or cause to be delivered to the Custodian
all Securities and monies owned by the Funds, including cash
received from the issuance of Shares, at any time during the
period of this Agreement. The Custodian will not be responsible
for such Securities and monies until actually received by it. St.
Clair shall instruct the Custodian from time to time in its sole
discretion, by means of Written Instructions, or, in connection
with the purchase or sale of Money Market Securities, by means of
Oral Instructions or Written Instructions, as to the manner in
which and in what amounts Securities and monies are to be
deposited on behalf of the Funds in the Book-Entry System or a
Depository and specifically allocated on the books of the
Custodian to the Funds; provided, however, that prior to the
initial deposit of Securities of the Funds in the Book-Entry
System or a Depository, including a deposit in connection with the
settlement of a purchase or sale, the Custodian shall have
received a Certificate or Written Instructions specifically
approving such deposits by the Custodian in the Book-Entry System
or a Depository. Securities and monies of the Funds deposited in
the Book-Entry System or the Depository will be represented in
accounts which include only assets held by the Custodian for
customers, including but not limited to accounts which the
Custodian acts in a fiduciary or representative capacity.
(b) Accounts and Disbursements. The Custodian shall establish
and maintain a separate account for each Fund and shall credit to
the separate account all monies received by it for the account of
the Fund and shall disburse the same only:
1. In payment for Securities purchased for the Fund, as
provided in Section 5 hereof;
2. Pursuant to Written Instructions, for the payment of any
expense or liability incurred by the Fund, including but not
limited to the following payments for the account of the Fund:
interest, taxes, management, accounting, transfer agent and legal
fees and operating expenses of the Fund whether or not such
expenses are, in whole or in part, to be capitalized or treated as
deferred expenses;
3. In payment of dividends or distributions with respect to the
Shares of the Fund, as provided in Section 7 hereof;
4. In payment of original issue or other taxes with respect to
the Shares of the Fund, as provided in Section 8 hereof;
5. In payment for Shares which have been redeemed by the Fund,
as provided in Section 8 hereof;
6. Pursuant to Written Instructions, setting forth the name and
address of the Fund and the person to whom the payment is to be
made, the amount to be paid and the purpose for which payment is
to be made;
7. In payment of fees and in reimbursement of the expenses and
liabilities of the Custodian attributable to the Fund, as provided
in Section 3(a) and Section 11(h) hereof; or
8. To a sub-custodian pursuant to Section 11(f) hereof.
(c) Confirmation and Statements. Promptly after the close of
business on each day, the Custodian shall furnish each Fund with
confirmations and a summary of all transfers to or from the
account of the Fund during said day. Where securities purchased
by the Funds are in a tangible bulk of securities registered in
the name of the Custodian (or its nominee) or shown on the
Custodian's account on the books of a Depository or the Book-Entry
System, the Custodian shall by book entry or otherwise identify
the quantity of those securities belonging to the Funds. At least
monthly, the Custodian shall furnish each Fund with a detailed
statement of the Securities and monies held for the Fund under
this Agreement. The Custodian shall also furnish St. Clair with
such periodic and special reports as St. Clair may reasonably
request, and such other information as may be agreed upon from
time to time.
(d) Registration of Securities and Physical Separation. All
Securities held for the Funds which are issued or issuable only in
bearer form, except such Securities as are held in the Book-Entry
System, shall be held by the Custodian in that form; all other
Securities held for the Fund may be registered in the name of the
Fund, in the name of any duly appointed registered nominee of the
Custodian as the Custodian may from time to time determine, or in
the name of the Book-Entry System or a Depository or their
successor or successors, or their nominee or nominees. St. Clair
reserves the right to instruct the Custodian as to the method of
registration and safekeeping of the Securities of the Funds. St.
Clair agrees to furnish to the Custodian appropriate instruments
to enable the Custodian to hold or deliver in proper form for
transfer, or to register in the name of its registered nominee or
in the name of the Book-Entry System or a Depository, any
Securities which it may hold for the account of the Funds and
which may from time to time be registered in the name of the
Funds. The Custodian shall hold all such Securities specifically
allocated to a Fund which are not held in the Book-Entry System or
a Depository in a separate account for the Fund in the name of the
Fund physically segregated at all times from those of any other
person or persons.
(e) Segregated Accounts. Upon receipt of a Written Instruction
the Custodian will establish segregated accounts on behalf of the
Funds to hold liquid or other assets as it shall be directed by a
Written Instruction and shall increase or decrease the assets in
such segregated accounts only as it shall be directed by
subsequent Written Instruction.
(f) Collection of Income and Other Matters Affecting Securities.
Unless otherwise instructed to the contrary by a Written
Instruction, the Custodian by itself, or through the use of the
Book-Entry System or a Depository with respect to Securities
therein deposited, shall with respect to all Securities held for
the Funds in accordance with this Agreement:
1. Collect all income due or payable;
2. Present for payment and collect the amount payable upon all
Securities which may mature or be called, redeemed or retired, or
otherwise become payable. Notwithstanding the foregoing, the
Custodian shall have no responsibility to a Fund for monitoring or
ascertaining any call, redemption or retirement dates with respect
to put bonds which are owned by a Fund and held by the Custodian
or its nominees. Nor shall the Custodian have any responsibility
or liability to a Fund for any loss by a Fund for any missed
payment or other defaults resulting therefrom; unless the
Custodian received timely notification from the Fund specifying
the time, place and manner for the presentment of any such put
bond owned by a Fund and held by the Custodian or its nominee.
The Custodian shall not be responsible and assumes no liability to
a Fund for the accuracy or completeness of any notification the
Custodian may furnish to a Fund with respect to put bonds;
3. Surrender Securities in temporary form for definitive
Securities;
4. Execute any necessary declarations or certificates of
ownership under the Federal income tax laws or the laws or
regulations of any other taxing authority now or hereafter in
effect;
5. Hold directly, or through the Book-Entry System or the
Depository with respect to Securities therein deposited, for the
account of the Funds all rights and similar Securities issued with
respect to any Securities held by the Custodian hereunder for the
Funds;
6. Transmit promptly to St. Clair any proxy statement, proxy
materials, notice of a call or conversion or similar communication
received by it as Custodian; and
7. Receive and hold for the account of each Fund all securities
received as a distribution on the Fund's portfolio of securities
as a result of a stock dividend, share split-up or reorganization,
recapitalization, readjustment or other rearrangement or
distribution of rights or similar securities issued with respect
to any portfolio securities belonging to the Fund.
(g) Delivery of Securities and Evidence of Authority. Upon
receipt of Written Instructions and not otherwise, except for
subparagraphs 5, 6, and 7 of this section 4(g) which may be
effected by Oral or Written Instructions, the Custodian, directly
or through the use of the Book-Entry System or a Depository,
shall:
1. Execute and deliver or cause to be executed and delivered to
such persons as may be designated in such Written Instructions,
proxies, consents, authorizations, and any other instruments
whereby the authority of a Fund as owner of any Securities may be
exercised;
2. Deliver or cause to be delivered any Securities held for a
Fund in exchange for other Securities or cash issued or paid in
connection with the liquidation, reorganization, refinancing,
merger, consolidation or recapitalization of any corporation, or
the exercise of any conversion privilege;
3. Deliver or cause to be delivered any Securities held for a
Fund to any protective committee, reorganization committee or
other person in connection with the reorganization, refinancing,
merger, consolidation or recapitalization or sale of assets of any
corporation, and receive and hold under the terms of this
Agreement in the separate account for the Fund certificates of
deposit, interim receipts or other instruments or documents as may
be issued to it to evidence such delivery;
4. Make or cause to be made such transfers or exchanges of the
assets specifically allocated to the separate account of a Fund
and take such other steps as shall be stated in Written
Instructions to be for the purpose of effecting any duly
authorized plan of liquidation, reorganization, merger,
consolidation or recapitalization of the Fund;
5. Deliver Securities owned by a Fund upon sale of such
Securities for the account of the Fund pursuant to Section 5;
6. Deliver Securities owned by a Fund upon the receipt of
payment in connection with any repurchase agreement related to
such Securities entered into by the Fund;
7. Deliver Securities owned by a Fund to the issuer thereof, or
its agent, for transfer into the name of the Fund or into the name
of any nominee or nominees of the Custodian into the name or
nominee name of any sub-custodian appointed pursuant to Section
11(f); or for exchange for a different number of bonds,
certificates or other evidence representing the same aggregate
face amount or number of units; provided, however, that in any
such case, the new Securities are to be delivered to the
Custodian;
8. Deliver Securities owned by a Fund to the broker for
examination in accordance with "street delivery" custom;
9. Deliver Securities owned by a Fund in accordance with the
provisions of any agreement among the Fund, the Custodian and any
broker-dealer or any similar organization or organizations
relating to compliance with the rules of any options clearing
entity or securities or commodities exchange, regarding escrow or
other arrangements in connection with transactions by the Fund;
10. Deliver Securities owned by a Fund in accordance with the
provisions of any agreement among the Fund, the Custodian, and a
futures commission merchant registered under the Commodity
Exchange Act, relating to compliance with the rules of the
Commodity Futures Trading Commission and/or any Contract Market,
or any similar organization or organizations, regarding account
deposits in connection with transactions by the Fund;
11. Deliver Securities owned by a Fund for delivery in
connection with any loans of securities made by the Fund but only
against receipt of adequate collateral as agreed upon from time to
time by the Custodian and the Fund which may be in the form of
cash or obligations issued by the United States government, its
agencies or instrumentalities;
12. Deliver Securities owned by a Fund for delivery as security
in connection with any borrowings by the Fund requiring a pledge
of Fund assets, but only against receipt of amounts borrowed;
13. Deliver Securities owned by a Fund upon receipt of Written
Instructions from the Fund for delivery to the Transfer Agent or
to the holders of Shares in connection with distributions in kind,
as may be described from time to time in the Fund's Prospectus, in
satisfaction of requests by holders of Shares for repurchase or
redemption;
14. Deliver Securities as collateral in connection with short
sales of securities by a Fund;
15. Deliver Securities for any purpose expressly permitted by
and in accordance with procedures described in a Fund's Prospectus
or resolution adopted by its Board of Directors signed by an
Authorized Person and certified by the Secretary of St. Clair; and
16. Deliver Securities owned by a Fund for any other proper
business purpose, but only upon receipt of, in addition to Written
Instructions, a certified copy of a resolution of the Board of
Directors signed by an Authorized Person and certified by the
Secretary of St. Clair, 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 business purpose, and naming
the person or persons to whom delivery of such Securities shall be
made.
(h) Endorsement and Collection of Checks, Etc. The Custodian is
hereby authorized to endorse and collect all checks, drafts or
other orders for the payment of money received by the Custodian
for the account of a Fund; provided, however, that the Custodian
shall not be liable pursuant to this Agreement for any money,
whether or not represented by check, draft, or other instrument
for the payment of money, received by it on behalf of the Fund
until the Custodian actually receives and collects such money
directly or by the final crediting of the account representing the
Fund's interest in the Book-Entry System or the Depository.
5. Purchase and Sale of Investments of a Fund.
(a) Promptly after each purchase of Securities for a 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, either Written Instructions or Oral
Instructions, in either case specifying with respect to each
purchase: (1) the name of the issuer and the title of the
Securities; (2) the number of shares or the principal amount
purchased and accrued interest, if any; (3) the date of purchase
and settlement; (4) the purchase price per unit; (5) the total
amount payable upon such purchase; (6) the name of the person from
whom or the broker through whom the purchase was made, if any; (7)
whether or not such purchase is to be settled through the Book-
Entry System or a Depository; and (8) whether the Securities
purchased are to be deposited in the Book-Entry System or a
Depository. The Custodian shall receive the Securities purchased
by or for the Fund and upon receipt of Securities or, as
appropriate, a copy of the broker's or dealer's confirmation or
payee's invoice, shall pay out of the monies held for the account
of the Fund the total amount payable upon such purchase, provided
that the same conforms to the total amount payable as set forth in
such Written or Oral Instructions.
(b) Promptly after each sale of Securities of a 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, either Written Instructions or Oral Instructions, in
either case specifying with respect to such sale: (1) the name of
the issuer and the title of the Securities; (2) the number of
shares or principal amount sold, and accrued interest, if any; (3)
the date of sale; (4) the sale price per unit; (5) the total
amount payable to the Fund upon such sale; (6) the name of the
broker through whom or the person to whom the sale was made; and
(7) whether or not such sale is to be settled through the Book-
Entry System or a Depository. The Custodian shall deliver or
cause to be delivered the Securities to the broker or other person
designated by the Fund upon receipt of the total amount payable to
the Fund upon such sale, provided that the same conforms to the
total amount payable to the Fund as set forth in such Written or
Oral Instructions. Subject to the foregoing, the Custodian may
accept payment in such form as shall be satisfactory to it, and is
customary among dealers in Securities, and may deliver Securities
and arrange for payment in accordance with the customs prevailing
among dealers in Securities.
6. Lending of Securities.
(a) If St. Clair is permitted by the terms of its Articles of
Incorporation and, as disclosed in its Prospectus, to lend
Securities, within 24 hours after each loan of Securities, a Fund,
shall deliver to the Custodian Written Instructions specifying
with respect to each such loan: (i) the name of the issuer and
the title of the Securities; (ii) the number of shares or the
principal amount loaned; (iii) the date of loan and delivery; (iv)
the total amount to be delivered to the Custodian and specifically
allocated against the loan of the Securities, including the amount
of cash collateral and the premium, if any, separately identified;
(v) the name of the broker, dealer or financial institution to
which the loan was made; and (vi) whether the Securities loaned
are to be delivered through the Book-Entry System or a Depository.
(b) Promptly after each termination of a loan of Securities, a
Fund shall deliver to the Custodian Written Instructions
specifying with respect to each such loan termination and return
of Securities: (i) the name of the issuer and the title of the
Securities to be returned; (ii) the number of shares or the
principal amount to be returned; (iii) the date of termination;
(iv) the total amount to be delivered by the Custodian (including
the cash collateral for such Securities minus any offsetting
credits as described in said Written Instructions); (v) the name
of the broker, dealer or financial institution from which the
Securities will be returned; and (vi) whether such return is to be
effected through the Book-Entry System or a Depository. The
Custodian shall receive all Securities returned from the broker,
dealer or financial institution to which such Securities were
loaned and upon receipt thereof shall pay the total amount payable
upon such return of Securities as set forth in the Written
Instructions. Securities returned to the Custodian shall be held
as they were prior to such loan.
7. Payment of Dividends or Distributions.
(a) St. Clair shall furnish to the Custodian Written
Instructions (i) authorizing the declaration of dividends or
distributions with respect to a Fund on a specified periodic basis
and specifying the date of the declaration of such dividend or
distribution, the date of payment thereof, the record date as of
which shareholders entitled to payment shall be determined, and
the total amount payable to the Transfer Agent on the payment
date, or (ii) setting forth the date of declaration of any
distribution by the Fund, the date of payment thereof, the record
date as of which shareholders entitled to payment shall be
determined, and the total amount payable to the Transfer Agent on
the payment date.
(b) Upon the payment date specified in such Written
Instructions, the Custodian shall pay to the Transfer Agent out of
monies specifically allocated to and held for the account of a
Fund the total amount payable to the Transfer Agent. In lieu of
paying the Transfer Agent cash dividends and distributions, the
Custodian may arrange for the direct payment of cash dividends and
distributions to Shareholders by the Custodian in accordance with
such procedures and controls as are mutually agreed upon from time
to time by and among St. Clair, the Custodian and the Transfer
Agent.
8. Sale and Redemption of Shares of St. Clair.
(a) Whenever a Fund shall sell any Shares, the Fund shall
deliver or cause to be delivered to the Custodian Written
Instructions duly specifying:
1. The number of Shares sold, trade date, and price; and
2. The amount of money to be received by the Custodian for the
sale of such Shares.
The Custodian understands and agrees that Written
Instructions may be furnished subsequent to the purchase of Shares
of the Fund and that the information contained therein will be
derived from the sales of Shares as reported to the Fund by the
Transfer Agent.
(b) Upon receipt of such money from the Transfer Agent, the
Custodian shall credit such money to the separate account of the
Fund.
(c) Upon issuance of any Shares in accordance with the foregoing
provisions of this Section 8, the Custodian shall pay all original
issue or other taxes required to be paid in connection with such
issuance upon the receipt of Written Instructions specifying the
amount to be paid.
(d) Except as provided hereafter, whenever any Shares are
redeemed, the Fund shall cause the Transfer Agent to promptly
furnish to the Custodian Written Instructions, specifying:
1. The number of Shares redeemed; and
2. The amount to be paid for the Shares redeemed.
The Custodian further understands that the information
contained in such Written Instructions will be derived from the
redemption of Shares as reported to the Fund by the Transfer
Agent.
(e) Upon receipt from the Transfer Agent of advice setting forth
the number of Shares received by the Transfer Agent for redemption
and that such Shares are valid and in good form for redemption,
the Custodian shall make payment to the Transfer Agent of the
total amount specified in Written Instructions issued pursuant to
paragraph (d) of this Section 8. In lieu of paying the Transfer
Agent said redemption proceeds as stated, the Custodian may
arrange for the direct payment of said proceeds to Shareholders by
the Custodian in accordance with such procedures and controls as
are mutually agreed upon from time to time by and among St. Clair,
the Custodian and the Transfer Agent.
(f) Notwithstanding the above provisions regarding the
redemption of Shares, whenever such Shares are redeemed pursuant
to any check redemption privilege which may from time to time be
offered by the Fund, the Custodian, unless otherwise instructed by
Written Instructions, shall honor the check presented as part of
such check redemption privilege out of the monies specifically
allocated to the Fund in such advice for such purpose.
9. Indebtedness.
(a) St. Clair will cause to be delivered to the Custodian by any
bank (excluding the Custodian) from which a Fund borrows money, a
notice or undertaking in the form currently employed by any such
bank setting forth the amount which such bank will loan to the
Fund and the amount of collateral, if any, required for such loan.
St. Clair shall promptly deliver to the Custodian Written
Instructions stating with respect to each such borrowing: (i) the
name of the bank; (ii) 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 other loan
agreement or evidence of indebtedness; (iii) the time and date, if
known, on which the loan is to be entered into (the "Borrowing
Date"); (iv) the date on which the loan becomes due and payable;
(v) the total amount payable to the Fund on the Borrowing Date;
(vi) the market value of Securities, if any, to be delivered as
collateral for such loan, including the name of the issuer, the
title and the number of shares or the principal or other amount of
any particular Securities; (vii) whether the Custodian is to
deliver such collateral through the Book-Entry System or a
Depository; and (viii) a statement that such loan is in
conformance with the 1940 Act and the Fund's Prospectus.
(b) Upon receipt of the Written Instructions referred to in
subparagraph (a) above, the Custodian shall deliver on the
Borrowing Date the specified collateral (if any) against delivery
by the lending bank of the total amount of the loan payable,
provided that the same conforms to the total amount payable as set
forth in the Written Instructions. The Custodian may, at the
option of the lending bank (unless the lending bank has not been
appointed a custodian or sub-custodian of the Fund's assets, in
which case the Custodian must), keep any such collateral in its
possession, but such collateral shall be subject to all rights
therein given the lending bank by virtue of any promissory note or
loan agreement. The Custodian shall deliver as additional
collateral in the same manner as directed by the Fund from time to
time such Securities specifically allocated to such Fund as may be
specified in Written Instructions to collateralize further any
transaction described in this Section 9. 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. In the
event that St. Clair fails to specify in Written Instructions all
of the information required by this Section 9, the Custodian shall
not be under any obligation to deliver any Securities. Collateral
returned to the Custodian shall be held hereunder as it was prior
to being used as collateral.
10. Persons Having Access to Assets of the Fund.
(a) No Trustee, officer, employee or agent of St. Clair, and no
officer, director, employee or agent of a Fund's investment
advisers, or any sub-investment adviser of a Fund, or of a Fund's
administrator, shall have physical access to the assets of the
Fund held by the Custodian or be authorized or permitted to
withdraw any investments of the Fund, nor shall the Custodian
deliver any assets of the Fund to any such person. No officer,
director, employee or agent of the Custodian who holds any similar
position with a Fund's investment advisers, with any sub-
investment adviser of a Fund or with a Fund's administrator shall
have access to the assets of the Fund.
(b) The individual employees of the Custodian duly authorized by
the Board of Directors of the Custodian to have access to the
assets of the Funds are listed in the certification annexed hereto
as Appendix A. The Custodian shall advise the Funds of any change
in the individuals authorized to have access to the assets of the
Fund by written notice to the Fund accompanied by a certified copy
of the authorizing resolution of the Custodian's Board of
Directors approving such change.
(c) Nothing in this Section 10 shall prohibit any officer,
employee or agent of the Company, or any officer, director,
employee or agent of the investment advisers, of any sub-
investment adviser of the Funds or of the Funds' administrator,
from giving Oral Instructions or Written Instructions to the
Custodian or executing a Certificate so long as it does not result
in delivery of or access to assets of a Fund prohibited by
paragraph (a) of this Section 10.
11. Concerning the Custodian.
(a) Standard of Conduct. In the performance of its duties
hereunder, the Custodian shall be obligated to exercise care and
diligence and to act in good faith and to use its best efforts
within reasonable limits to insure the accuracy and completeness
of all services under this Agreement. Except as otherwise
provided herein, neither the Custodian nor its nominee shall be
liable for any loss or damage, including counsel fees, resulting
from its action or omission to act or otherwise, except for any
such loss or damage arising out of its negligence, misfeasance or
willful misconduct or that of its employees or agents. The
Custodian may, with respect to questions of law, apply for and
obtain the advice and opinion of counsel to St. Clair or of its
own counsel, at the expense of St. Clair, and shall be fully
protected with respect to anything done or omitted by it in good
faith in conformity with such advice or opinion. The Custodian
shall be liable to the Funds for any loss or damage resulting from
the use of the Book-Entry System or a Depository arising by reason
of any negligence, misfeasance or willful misconduct on the part
of the Custodian or any of its employees or agents.
(b) Limit of Duties. Without limiting the generality of the
foregoing, the Custodian shall be under no duty or obligation to
inquire into, and shall not be liable for:
1. The validity of the issue of any Securities purchased by the
Funds, the legality of the purchase thereof, or the propriety of
the amount paid therefor;
2. The legality of the sale of any Securities by the Funds or
the propriety of the amount for which the same are sold;
3. The legality of the issue or sale of any Shares, or the
sufficiency of the amount to be received therefor;
4. The legality of the redemption of any Shares, or the
propriety of the amount to be paid therefor;
5. The legality of the declaration or payment of any
distribution of any Fund; or
6. The legality of any borrowing.
(c) No Liability Until Receipt. The Custodian shall not be
liable for, or considered to be the Custodian of, any money,
whether or not represented by any check, draft, or other
instrument for the payment of money, received by it on behalf of a
Fund until the Custodian actually receives and collects such money
directly or by the final crediting of the account representing the
Fund's interest in the Book-Entry System or a Depository.
(d) Amounts Due from Transfer Agent. The Custodian shall not be
under any duty or obligation to take action to effect collection
of any amount due to the Funds from the Transfer Agent nor to take
any action to effect payment or distribution by the Transfer Agent
of any amount paid by the Custodian to the Transfer Agent in
accordance with this Agreement.
(e) Collection Where Payment Refused. The Custodian shall not
be under any duty or obligation to take action to effect
collection of any amount, if the Securities upon which such amount
is payable are in default, or if payment is refused after due
demand or presentation, unless and until (i) it shall be directed
to take such action by a Certificate and (ii) it shall be assured
to its satisfaction of reimbursement of its costs and expenses in
connection with any such action. The Custodian shall give the
Funds prompt notice of each such event.
(f) Appointment of Sub-Custodians. In connection with its
duties under this Agreement, the Custodian may, at its own
expense, enter into sub-custodian agreements with other domestic
banks or trust companies for the receipt of certain securities and
cash to be held by the Custodian for the accounts of the Funds
pursuant to this Agreement; provided that each such bank or trust
company complies with all relevant provisions of the 1940 Act,
applicable state securities laws and the rules and regulations
thereunder. The Custodian shall remain responsible for the
performance of all of its duties under this Agreement and shall
hold St. Clair harmless from the acts and omissions, under the
standards of care provided for herein, of any domestic bank or
trust company that it might choose pursuant to this Section. The
parties hereto acknowledge that they intend to enter into a Sub-
Custodian Agreement with Xxxxxx Xxxxxxx Trust Company or another
institution agreeable to them providing for the custody of certain
Securities outside the United States in accordance with Rule 17f-5
under the 1940 Act.
(g) No Duty to Ascertain Authority. 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 Fund are such as
may properly be held by the Fund under the provisions of the
Articles of Incorporation and the Prospectus.
(h) Reliance on Certificates and Instructions. The Custodian
shall be entitled to rely upon any Certificate, notice or other
instrument in writing received by the Custodian and reasonably
believed by the Custodian to be genuine and to be signed by two
officers of St. Clair or Authorized Persons. The Custodian shall
be entitled to rely upon any Written or Oral Instructions actually
received by the Custodian pursuant to the applicable Sections of
this Agreement and reasonably believed by the Custodian to be
genuine and to be given by an Authorized Person in the case of
Oral Instructions or two Authorized Persons in the case of Written
Instructions. St. Clair agrees to forward to the Custodian
Written Instructions from two Authorized Persons confirming such
Oral Instructions in such manner so that such Written Instructions
are received by the Custodian, whether by hand delivery, telex or
otherwise, by the close of business on the same day that such Oral
Instructions are given to the Custodian. St. Clair agrees that
the fact that such confirming instructions are not received by the
Custodian shall in no way affect the validity of the transactions
or enforceability of the transactions hereby authorized by St.
Clair. St. Clair agrees that the Custodian shall incur no
liability to St. Clair in acting upon Oral Instructions given to
the Custodian hereunder concerning such transactions provided such
instructions reasonably appear to have been received from a duly
Authorized Person.
(i) Books and Records. The books and records pertaining to St.
Clair which are now or hereafter in the possession of the
Custodian shall be the property of St. Clair. Such books and
records shall be prepared and maintained as required by the 1940
Act and other applicable securities laws and regulations and
shall, to the extent practicable, be maintained separately for
each Fund of St. Clair. St. Clair, St. Clair's authorized
representatives and auditors shall have access to such books and
records at all times during the Custodian's normal business hours.
Upon the reasonable request of St. Clair, copies of any such books
and records shall be provided by the Custodian to St. Clair or St.
Clair's authorized representatives at St. Clair's expense.
The Custodian shall provide St. Clair with any report
obtained by the Custodian on the system of internal accounting
control of the Book-Entry System or a Depository and with such
reports on its own systems of internal accounting control in
accordance with the requirements of the 1940 Act and as St. Clair
may reasonably request from time to time.
(j) Cooperation with Accountants. The Custodian shall cooperate
with St. Clair's independent public accountants and shall take all
reasonable action in the performance of its obligations under this
Agreement to assure that the necessary information is made
available to such accountants for the expression of their
opinions, as such may be required from time to time by St. Clair.
(k) Compliance with Governmental Rules and Regulations. The
Custodian shall comply with all applicable requirements of the
federal securities and commodities laws, and any other laws, rules
and regulations of governmental authorities having jurisdiction
with respect to the duties to be performed by the Custodian
hereunder. Except as specifically set forth herein, the Custodian
assumes no responsibility for such compliance by St. Clair.
12. Term and Termination.
(a) This Agreement shall become effective on the date first set
forth above (the "Effective Date") and shall continue in effect
thereafter until terminated pursuant to paragraph (b) of this
Section 12.
(b) Either of the parties hereto may terminate this Agreement at
any time by giving to the other party a notice in writing
specifying the date of such termination, which shall be not less
than 60 days after the date of receipt of such notice. In the
event such notice is given by St. Clair, it shall be accompanied
by a certified resolution of the Board of Directors of St. Clair,
electing to terminate this Agreement and designating a successor
custodian or custodians, which shall be a person qualified to so
act under the 1940 Act.
In the event such notice is given by the Custodian, St.
Clair shall, on or before the termination date, deliver to the
Custodian a certified resolution of the Board of Directors of St.
Clair, designating a successor custodian or custodians. In the
absence of such designation by St. Clair, the Custodian may
designate a successor custodian, which shall be a person qualified
to so act under the 1940 Act. If St. Clair fails to designate a
successor custodian, St. Clair shall upon the date specified in
the notice of termination of this Agreement and upon the delivery
by the Custodian of all Securities (other than Securities held in
the Book-Entry System and other securities held in uncertificated
form which cannot be delivered to St. Clair) and monies then owned
by St. Clair, be deemed to be its own custodian 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 and other uncertificated
securities which cannot be delivered to St. Clair.
(c) Upon the date set forth in such notice under paragraph (b)
of this Section 12, this Agreement shall terminate to the extent
specified in such notice, and the Custodian shall upon receipt of
a notice of acceptance by the successor custodian deliver directly
to the successor custodian on that date all Securities and monies
then held by the Custodian on behalf of St. Clair, after deducting
all fees, expenses and other amounts the payment or reimbursement
of which it shall then be entitled.
13. Miscellaneous.
(a) Annexed hereto as Appendix A is a certification signed by
two of the present officers of St. Clair setting forth the names
and the signatures of the present Authorized Persons. St. Clair
agrees to furnish to the Custodian a new certification in similar
form in the event that any such present Authorized Person ceases
to be such an Authorized Person or in the event that other or
additional Authorized Persons are elected or appointed. Until
such new certification shall be received, the Custodian shall be
fully protected in acting under the provisions of this Agreement
upon Oral Instructions or signatures of the present Authorized
Persons as set forth in the last delivered certification.
(b) Annexed hereto as Appendix B is a certification signed by
the present officers of St. Clair setting forth the names and the
signatures of the three present officers of St. Clair. St. Clair
agrees to furnish to the Custodian a new certification in similar
form in the event any such present officer ceases to be an officer
of St. Clair or in the event that other or additional officers are
elected or appointed. Until such new certification shall be
received, the Custodian shall be fully protected in acting under
the provisions of this Agreement upon the signature of the
officers as set forth in the last delivered certification.
(c) 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 000 Xxxx Xxxxxxxxx, 0xx Xxxxx
XxxxxxXxxxx Mail Code 3438, Xxxxxxx, Xxxxxxxx 00000, Attn: Xxxxx
Xxxx or at such other place as the Custodian may from time to time
designate in writing.
(d) Any notice or other instrument in writing, authorized or
required by this Agreement to be given to St. Clair, shall be
sufficiently given if addressed to the Company and mailed or
delivered to Xxx X. Xxxxxx, President, St. Clair Funds, Inc., 000
Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000, or to such
other place as St. Clair may from time to time designate in
writing.
(e) This Agreement may not be amended or modified in any manner
except by a written agreement executed by both parties with the
same formality as this Agreement, (i) authorized and approved by a
resolution of the Board of Directors of St. Clair, including a
majority of the members of the Board of Directors of the Company
who are not "interested persons" of St. Clair (as defined in the
1940 Act), or (ii) authorized and approved by such other
procedures as may be permitted or required by the 1940 Act.
(f) 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
St. Clair without the written consent of the Custodian, or by the
Custodian without the written consent of St. Clair authorized or
approved by a resolution of the Board of Directors of St. Clair,
and any attempted assignment without such written consent shall be
null and void.
(g) This Agreement shall be construed in accordance with the
laws of the State of Maryland.
(h) The captions of the Agreement are included for convenience
of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or
effect.
(i) 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 representatives
duly authorized as of the day and year first above written.
ST. CLAIR FUNDS, INC.
By:
Name:
Title:
COMERICA BANK
By:
Name:
Title:
SCHEDULE A
List of Funds
Liquidity Plus Money Market Fund
Munder S&P 500 Index Equity Fund
Munder S&P MidCap Index Equity Fund
Munder S&P SmallCap Index Equity Fund
Munder Foreign Equity Fund
Munder Aggregate Bond Index Fund
ST. CLAIR FUNDS, INC.
By:
Title:
COMERICA BANK
By:
Title:
SCHEDULE B
Fee Schedule
Computed daily and payable monthly based on the aggregate average
daily net assets of St. Clair Funds, Inc.
First $100 million of net assets .03%
Next $500 million of net assets .02%
Over $600 million of net assets .01%
Transaction Charges
DTC Trades $2.00 per trade
Fed Book Entry Trade $12.00 per trade
U.S. Physical Trade $25.00 per trade
APPENDIX A
I, Xxxx X. Xxxxx, Secretary of St. Clair Funds, Inc., a
Maryland Corporation ("St. Clair") do hereby certify that:
The individuals shown on Exhibit A attached hereto have been
duly authorized as Authorized Persons to give Oral Instructions
and Written Instructions on behalf of St. Clair and the signatures
set forth opposite their respective names are their true and
correct signatures.
St. Clair Funds, Inc.
Xxxx X. Xxxxx, Secretary
Exhibit A
Name Signature
Xxxxxx Xxxxxxxx
Xxxxxx Xxxxx
Xxxxxxx X. Xxxx XX
Xxxxxxxxxx Xxxxxx
Xxxxxxxxx Xxxxxx
Xxxxxx Xxxxxxx
Xxx Xxxxxx
Xxxxxx X. Xxxx
Xxxxx XxXxxx
Xxxx X. Xxxxxx
Xxxxxx X. Xxxxxxxx
Xxxxxx Xxxxxx
Xxxxxx Xxxxxxx
Xxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxxxx
Xxxxxxx Xxxxxxx
Xxxx Xxxx
Xxxxx Xxxxxx
Xxxx X. Xxxxxxxx, Xx.
Xxxxx Xxxxxxx
Xxxxx X. Xxxxxxxx
Xxxx Xxxxxxx
Xxxxx Xxxxx
Xxxx Xxxxxxx
Xxxxxxxx Xxxxxx
Xxxxxxx Xxxxxx
Xxx X. Xxxxxx
Xxxx Xxxxx
Xxxxxx Xxxx
Xxxxx Xxxxx
D. Xxxx Xxxxxxxxxx
Xxxxx Xxxxxxxx
Xxxx X. Xxxxx
Xxxxx Xxxx
Xxxxxx Xxxxxx
Xxxxxxx Xxxxxxxxxx
Xxxxxx Xxxxxxx
Xxxxx Xxxxxx
Xxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxx
Xxxx Xxxx
APPENDIX B
I, Xxxx X. Xxxxx, Secretary of St. Clair Funds, Inc., a
Maryland Corporation ("St. Clair"), do hereby certify that:
The following individuals serve in the following positions
with St. Clair and each individual has been duly elected or
appointed to each such position and qualified therefor in
conformity with St. Clair's Articles of Organization and the
signatures set forth opposite their respective names are their
true and correct signatures:
Name Position Signature
Xxxxxxx X. Xxxxxxx Chairman of the Board
of Directors
Xxxx X. Xxxxxxx, Xx. Vice Chairman
Xxx X. Xxxxxx President ________________________
Xxxxx X. Xxxxxxx Vice President
Chief Financial Officer
and Treasurer
Xxxxxxx X. Xxxx XX Vice President
Xxx X. Xxxxxxxx Vice President
Xxxxx X. Xxxxxxxx Vice President
Xxxxxx X. Xxxxxxx Vice President
Xxxx X. Xxxxxx Vice President
Xxxxx X. Xxxxxx Vice President
Xxxxxxx X. Xxxx Assistant Treasurer
Xxxx X. Xxxxx Secretary and
Assistant Treasurer
Xxxxxx X.X. Xxxxxx Assistant Secretary
Xxxxx X. Xxxxxxx Assistant Secretary
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