EXHIBIT 8(c)
CUSTODY AGREEMENT
AGREEMENT dated as of June 13, 1994 between St. Clair Funds, Inc. (the
"Company"), a Maryland corporation with offices at Xxx Xxxxxxxx Xxxxx, 0xx
Xxxxx, Xxxxxx, XX 00000, on behalf of the St. Clair Money Market Fund --
Fiduciary Portfolio (the "Fund"), 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,
the Company 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 the Company, duly authorized by the Board of
Directors of the Company to give Oral Instructions and Written Instructions
on behalf of the 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 the Company by any two Authorized Persons or any two officers thereof.
(d) "Articles of Incorporation" shall mean the Articles of Incorporation of
the Company filed with the Secretary of State of the State of Maryland on
May 22, 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 the 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 common stock, $.001 par value per
share of the 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 the 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 the Company.
(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 the Company's
Administrator, The Shareholder 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) The Company 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 Fund 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) In the event the Company establishes one or more portfolios other than
the Fund with respect to which the Company wishes to retain the Custodian
to act as custodian, the Company shall so notify the Custodian in writing.
If the Custodian is willing to render such services, the Custodian shall
notify the Company in writing whereupon each such portfolio shall be deemed
to be a Fund hereunder.
3. Compensation.
(a) The Company 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 A and incorporated herein.
(b) Any compensation agreed to hereunder may be adjusted from time to time
by attaching to Schedule A 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 the Company as soon as practicable after the
end of each calendar month, and said xxxxxxxx will be detailed in
accordance with the Fee Schedule for the Company. The Company will promptly
pay to the Custodian the amount of such billing. The Custodian may charge
against any monies held on behalf of the 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 the 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) The 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.
(e) If in any fiscal year the aggregate expenses of the Fund (as defined
under the securities regulations of any state having jurisdiction over such
Fund) exceed the expense limitations of any such state, the Company may
deduct from the total fees to be paid with respect to such Fund under this
Agreement and under the Administration Agreement and Transfer Agency
Agreement, or the Custodian and the Company's Administrator and Transfer
Agent together will bear, to the extent required by state law, that portion
of the excess as said total fees with respect to such Fund bear to the
total fees otherwise payable for the fiscal year by the Company pursuant to
the aforesaid Agreements and the Company's investment advisory agreement
with respect to such Fund. Such deduction or payment, if any, with respect
to the Custodian will be limited to the amount of the fee paid hereunder
for the applicable period with respect to the Fund involved.
4. Custody of Cash and Securities.
(a) Receipt and Holding of Assets.
The Company will deliver or cause to be delivered to the Custodian all
Securities and monies owned by the Fund, 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. The Company 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
Fund in the Book-Entry System or a Depository and specifically allocated on
the books of the Custodian to the Fund; 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 Fund
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 origina 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 the 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 Fund 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 Fund. At least monthly,
the Custodian shall furnish the Fund with a detailed statement of the
Securities and monies held for the Fund under this Agreement. The Custodian
shall also furnish the Company with such periodic and special reports as
the Company 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 Fund 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. The Company reserves
the right to instruct the Custodian as to the method of registration and
safekeeping of the Securities of the Fund. The Company 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 Fund and which may
from time to time be registered in the name of the Fund. 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 Fund 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 the Fund for monitoring or
ascertaining any call, redemption or retirement dates with respect to
put bonds which are owned by the Fund and held by the Custodian or
its nominees. Nor shall the Custodian have any responsibility or
liability to the Fund for any loss by the 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 the Fund for the accuracy or
completeness of any notification the Custodian may furnish to the
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
Fund all rights and similar Securities issued with respect to any
Securities held by the Custodian hereunder for the Fund;
6. Transmit promptly to the Company 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 the 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 the Fund as owner of any Securities may be exercised;
2. Deliver or cause to be delivered any Securities held for the 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 the 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 the 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 the Fund upon sale of such
Securities for the account of the Fund pursuant to Section 5;
6. Deliver Securities owned by the 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 the 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 or into the name or nominee name
of any agent appointed pursuant to Section 10(f) or into the name or
nominee name of any sub-custodian appointed pursuant to Section
10(e); 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 the Fund to the broker for
examination in accordance with "street delivery" custom;
9. Deliver Securities owned by the 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 the 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 the 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 the 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 the 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 the Fund's Prospectus or
resolution adopted by its Board of Directors signed by an Authorized
Person and certified by the Secretary of the Company; and
16. Deliver Securities owned by the 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 the Fund, 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 the 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 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, 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 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, 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 the Company 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, the 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, the 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) The Company shall furnish to the Custodian Written Instructions (i)
authorizing the declaration of dividends or distributions with respect to
the 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 the 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 the Company, the Custodian and the Transfer Agent.
8. Sale and Redemption of Shares of the Company.
(a) Whenever the 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 the Company, 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) The Company will cause to be delivered to the Custodian by any bank
(excluding the Custodian) from which the 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. The Company 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 the Company 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 Companyee, officer, employee or agent of the Company, and no
officer, director, employee or agent of the Fund's investment advisers, or
any sub-investment adviser of the Fund, or of the 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 the Fund's investment advisers, with any sub-investment
adviser of the Fund or with the 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 Trustees of the Custodian to have access to the assets of the Fund are
listed in the certification annexed hereto as Appendix C. The Custodian
shall advise the Fund 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 Trustees 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 Fund or of the
Fund's 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 the 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
the Company or of its own counsel, at the expense of the Company, 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 Fund 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
Fund, 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 Fund 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 the 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 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 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 Fund 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 Fund
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 Company companies for the receipt
of certain securities and cash to be held by the Custodian for the accounts
of the Fund pursuant to this Agreement; provided that each such bank or
Company 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 the Company harmless from the
acts and omissions, under the standards of care provided for herein, of any
domestic bank or Company company that it might choose pursuant to this
Section.
(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 the Company 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.
The Company 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. The Company agrees
that the fact that such confirming instructions are not received by the
Custodian shall in no way affect the validity of the transactions or
enforceability of the transactions hereby authorized by the Company. The
Company agrees that the Custodian shall incur no liability to the Company
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 the Company
which are now or hereafter in the possession of the Custodian shall be the
property of the Company. 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 the Company. The Company, the Company'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 the Company, copies of any such books and records
shall be provided by the Custodian to the Company or the Company's
authorized representatives at the Company's expense.
The Custodian shall provide the Company 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 the Company may reasonably request from time to time.
(j) Cooperation with Accountants. The Custodian shall cooperate with the
Company'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 the Company.
(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 the Company.
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 the Company,
it shall be accompanied by a certified resolution of the Board of Directors
of the Company, 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, the Company
shall, on or before the termination date, deliver to the Custodian a
certified resolution of the Board of Directors of the Company, designating
a successor custodian or custodians. In the absence of such designation by
the Company, the Custodian may designate a successor custodian, which shall
be a person qualified to so act under the 0000 Xxx. If the Company fails to
designate a successor custodian, the Company 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 the Company) and monies then owned by the Company, 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 the Company.
(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 the
Company, 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 the Company setting forth the names and the signatures
of the present Authorized Persons. The Company 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 the Company setting forth the names and the signatures of the
three present officers of the Company. The Company 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 the Company 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 MasterCompany 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 the Company, shall be sufficiently given if
addressed to the Company and mailed or delivered to Xxxxxx X. Xxxxx,
Chairman of the Board of Directors, St. Clair Funds, Inc., 0000 Xxxxxxxxx
Xxxxx, Xxxxxxxx, Xxxxxxxx 00000, with a copy to 000 Xxxxxxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000-0000, Attn: Xxx Xxxxxxxx, or to such other place as
the Company 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 the Company, including a majority of the members of the Board
of Directors of the Company who are not "interested persons" of the Company
(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 the Company without the
written consent of the Custodian, or by the Custodian without the written
consent of the Company authorized or approved by a resolution of the Board
of Directors of the Company, 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
Commonwealth of Massachusetts.
(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: /s/ Xxxxxxx X. Xxxxxxx
Name: /s/ Xxxxxxx X. Xxxxxxx
Title:
COMERICA BANK
By: /s/ Xxxxx Xxxx
Name: Xxxxx Xxxx
Title: Vice President
SCHEDULE A
Annual fee
Computed daily and payable monthly based on the aggregate average daily net
assets of the St. Clair Funds and the Ambassador 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, Xxxxxxxx X. Xxxxxxxx, Secretary of St. Clair Funds, Inc., a Maryland
corporation (the "Company") 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 the Company and the signatures set forth opposite
their respective names are their true and correct signatures:
St. Clair Funds, Inc.
/s/ Xxxxxxxx X. Xxxxxxxx
Xxxxxxxx X. Xxxxxxxx, Secretary
APPENDIX B
I, Secretary of St. Clair Funds, Inc., a Maryland corporation (the
"Company"), do hereby certify that:
The following individuals serve in the following positions with the
Company and each individual has been duly elected or appointed to each such
position and qualified therefor in conformity with the Company's Articles of
Incorporation and the signatures set forth opposite their respective names are
their true and correct signatures:
Name Position Signature
Xxxxxx X. Xxxxx Chairman of the Board /s/ Xxxxxx X. Xxxxx
of Directors and President
Xxxxxxx X. Xxxx Treasurer /s/ Xxxxxxx X. Xxxx
Xxxxxx Xxxxxxx Assistant Treasurer /s/ Xxxxxx X. Xxxxxxx
Xxxxxxxx X. Xxxxxxxx Secretary /s/ Xxxxxxxx X. Xxxxxxxx
Xxxx X. Xxxxx Assistant Secretary /s/ Xxxx Xxxx Xxxxx
APPENDIX C - INDIVIDUALS WITH ACCESS
I, _________________________, Secretary of Comerica Bank, a Michigan
banking corporation (the "Custodian"), do hereby certify that:
The following named individuals have been duly authorized by the Executive
Committee of the Board of Directors of the Custodian to have access to the
assets of St. Clair Funds, Inc., a Massachusetts Business Company, held by the
Custodian in its capacity as such:
COMERICA BANK
-------------------------
Secretary
Exhibit A
Name Signature
Xxxxxxxxxx Xxxxxx ________________________________
Xxx Xxxxx ________________________________
Xxxxxxxx Xxxxxxxxxxx ________________________________
Xxxx Xxxxxxxx ________________________________
Xxxx Xxxxx ________________________________
Xxxxxxxxx Ortigissen ________________________________
Xxxxxxx Xxxxxxx ________________________________
Xxxxxxx X. Xxxxxxx ________________________________
Xxx Xxxxxx ________________________________
Xxxx Xxxx ________________________________
Xxxxx XxXxxx ________________________________
Xxxxxx X. Xxxxxxxxx ________________________________
Xxxxxxx Xxxx ________________________________
Xxxxx Xxxxxxx ________________________________
Xxxx Xxxxxx ________________________________
Xxxxxxx Xxxx ________________________________
Xxxxx Xxxxxxxxxxx ________________________________
Xxxxx X. Xxxxxxxx ________________________________
Xxxx Xxxx ________________________________
Trent May ________________________________
Xxxxx Xxx ________________________________
Xxxxx Xxxxx ________________________________
D. Xxxx Xxxxxxxxxx ________________________________
Xxxxxxxx Xxxxxxx ________________________________
Xxxx Xxxxxxx ________________________________
Xxxxx Xxxxxx ________________________________
Xxxxx Xxxx ________________________________
