EXHIBIT 99.8
(Executed Copy)
CUSTODIAN AGREEMENT
Agreement dated the 10th day of May, 1988 between Trust for Credit Unions,
a Massachusetts business trust (the "Fund"), and State Street Bank and Trust
Company, a Massachusetts banking corporation ("State Street").
1. APPOINTMENT OF CUSTODIAN. The Fund hereby appoints State Street
custodian of all securities (including repurchase agreements) and cash now owned
or hereafter acquired by the Fund, and State Street hereby accepts such
appointment, upon the terms and conditions set forth in this Agreement. The
Fund agrees promptly to deliver and pay, or cause to be delivered and paid, to
State Street, as custodian, all securities and cash now owned or hereafter
acquired by the Fund. The Fund further agrees to deliver to State Street a
certified or authenticated copy of its Agreement and Declaration of Trust, as
amended (the "Trust Agreement"), a copy of which is also on file with the
Secretary of The Commonwealth of Massachusetts, By-Laws and all amendments
thereto, a certified copy of the resolutions of the Trustees of the Fund
appointing State Street to act in the capacity of custodian as provided in this
Agreement and authorizing the execution and delivery of this Agreement, and
copies of such resolutions, contracts and other documents of the Fund as may be
required by State Street in the performance of its duties hereunder. It is
understood that (a) the Fund is an open-end, diversified management investment
company registered under the Investment Company Act of 1940, as amended ("1940
Act") as a series company initially with two portfolios but with the ability to
create additional portfolios (the initial portfolios and each such additional
portfolio being referred to herein as a "Portfolio" and all such portfolios
being collectively referred to herein as the "Portfolios"), and (b) pursuant to
section 18(f)(2) of the 1940 Act each series of the Fund's Units (as defined in
the Trust Agreement), representing the
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interest in a Portfolio, is preferred over all other series in respect of the
assets specifically allocated to such Portfolio.
2. CUSTODY OF CASH; BANK ACCOUNTS. State Street will hold all cash of
each Portfolio, other than cash held by such Portfolio in an account established
and maintained in accordance with Rule 17f-3 under the 1940 Act and other than
cash held in the "GSFG Joint Account" (which consists of a cash account and a
securities account established for the purchase of certain repurchase agreements
by the Fund and certain other funds advised by Xxxxxxx, Xxxxx & Co. which have
amended their respective custodian agreements with State Street to provide for
the establishment of such an account (collectively, the "Funds"), in the banking
department of State Street in a separate account or accounts in the name of such
Portfolio, subject only to draft or order by State Street in accordance with the
terms of this Agreement. State Street will hold the cash in the GSFG Joint
Account in its banking department in a separate account on behalf of the Funds
under the name "GSFG Joint Account", subject only to draft or order by State
Street in accordance with the terms of this Agreement. If and when authorized
by proper instructions in accordance with a vote of the majority of the Trustees
of the Fund, State Street shall open and maintain an additional account or
accounts in such other banks or trust companies as may be designated by such
instructions, provided that such account or accounts shall be in the name of
State Street in its capacity as custodian and subject only to its draft or order
in accordance with the terms of this Agreement. If requested by the Fund, State
Street shall furnish to the Fund, no later than (1) 20 calendar days after the
last business day of each month, a statement reflecting the current status of
its internal reconciliation of the closing balance as of that day in all bank
accounts described in this Section 2 to the balance shown in the daily cash
report for that day rendered to the Fund, and (b) within 5 calendar days after
receipt thereof the bank statement for such month with respect to the additional
account or accounts referred to in the preceding sentence. State Street is
hereby authorized to
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endorse and collect all checks, drafts or other orders for the payment of money
received by it for the account of any Portfolio.
State Street will make such arrangements with the Fund's investment
adviser/distributor as will enable State Street to make certain it receives the
Federal funds due to the Fund for Units of the Fund as may be issued or sold
from time to time by the Fund. In connection with such issuance of Units, State
Street shall make such arrangements with the Fund's investment
adviser/distributor as shall insure the timely notification to the Fund of the
receipt of Federal funds by State Street or such other banks or trust companies
referred to in the preceding paragraph by means of the Federal Reserve Wire
System or otherwise.
3. CUSTODY OF SECURITIES.
A. RECEIPT OF SECURITIES. State Street will hold in a separate
account, and physically separated at all times from those of any other persons,
firms, corporations or other Portfolios, pursuant to the provisions hereof, all
securities received by State Street for or for the account of a Portfolio,
except those securities received (either in certificate form or through an entry
crediting State Street's account at the Federal Reserve Bank with such
securities) in connection with repurchase agreements to be held in the GSFG
Joint Account and, if applicable, written evidence of such repurchase
agreements, which Account shall also be separate and physically separated at all
times from those of any other persons, firms, corporations or other Portfolios.
All such securities shall be held or disposed of by State Street for, and
subject at all times to the instructions of, the Fund pursuant to the terms of
this Agreement. State Street shall have no power or authority to assign,
hypothecate, pledge or otherwise dispose of any such securities, except pursuant
to proper instructions and only for the account of the Fund as set forth in
Section 5 hereof. Any securities delivered to State Street other than in bearer
form shall be properly endorsed and in form for transfer or shall be in the name
of State Street, the Fund or nominee of State Street or the Fund.
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B. REGISTERED NAMES; NOMINEES. State Street shall register
securities of the Fund held by it under this Agreement, other than those in
bearer form, in the name of the Fund or State Street or a nominee of the Fund or
State Street. Securities of the fund held by an agent appointed pursuant to
Section 8A hereof or a sub-custodian appointed pursuant to Section 8B hereof may
be registered in the name of such agent or sub-custodian or a nominee of such
agent or sub-custodian.
C. RECORD KEEPING AND INVENTORY. State Street shall maintain
records of all receipts, deliveries and locations of securities held by it under
this Agreement, together with a current inventory thereof, and shall conduct
periodic physical inspections of certificates representing such securities in
such manner as State Street shall determine to be advisable or the Fund may
reasonably request from time to time in order to verify the accuracy of such
inventory. With respect to securities held by an agent appointed pursuant to
Section 8A hereof or any sub-custodian appointed pursuant to Section 8B hereof,
State Street may rely upon certificates of the agent or sub-custodian as to its
holdings, it being understood that such reliance in no way relieves State Street
of its responsibilities under this Agreement. State Street will promptly report
to the Fund the results of such inspections, indicating any shortages or
discrepancies uncovered thereby,and will take appropriate action to remedy any
such shortages or discrepancies.
D. USE OF SECURITIES DEPOSITORIES. State Street may deposit all or
any part of the securities held by it hereunder and eligible therefor in the
book entry systems ("Depository Systems") covered by Rule 17f-4(b) under the
1940 Act; provided, however, that (a) State Street, each agent appointed
pursuant to Section 8A hereof and each sub-custodian appointed pursuant to
Section 8B hereof shall comply in all respect with clauses (d)(1) through (d)(4)
of Rule 17f-4 under the 1940 Act, (b) all books and records maintained by State
Street and each such agent and sub-custodian which relate to the Fund's
participation in such Depository Systems
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will be at all times during regular business hours be open to inspection by the
Fund's duly authorized officers, employees, agents and auditors, and the Fund
will be furnished with all the information in respect of the services rendered
to it as it may require, (c) in connection with the use of such Depository
Systems, State Street will be liable to the Fund for any losses or damages
relating to the failure to effectively enforce such rights as may exist against
such Depository Systems, agent or sub-custodian, (d) payment for securities
purchased for the account of any Portfolio or return of collateral for
securities loaned by any portfolio ("Loaned Securities") shall be made only upon
(i) receipt of advice from the Depository System that such purchased securities
or Loaned Securities have been transferred to the account (the "Book Entry
Account") contemplated by clause (d)(2) of Rule 17F-4 under the 1940 Act and
(ii) the making of an entry on the records of State Street or such agent or sub-
custodian, as the case may be, to reflect such payment or return and transfer
for the account of such Portfolio, and (e) transfer of securities sold or Loaned
Securities for the account of any Portfolio shall be made only upon (iii)
receipt of advice from the Depository System that payment for such securities or
collateral for such Loaned Securities has been transferred to the Book Entry
Account, and (iv) the making of an entry on the records of State Street or such
agent or sub-custodian, as the case may be, to reflect such transfer of sold
securities or Loaned Securities and transfer of payment or collateral for the
account of such Portfolio.
E. JOINT ACCOUNT PARTICIPATION. State Street acknowledges that each
Fund will participate in the income earned or accrued in the GSFG Joint Account
and in the custodial fees incurred in the operation of the Account on the basis
of the percentage of the total amount in the Account on any day represented by
its share of the Account and that each Fund will have an undivided interest in
the repurchase agreements in the Account equal to such percentage.
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4. DISBURSEMENTS OF CASH. Upon the receipt of proper instructions, State
Street shall make payments or disbursements of cash of each Portfolio held by it
or subject to its draft or order under this Agreement, insofar as such cash is
available, only for the following purposes:
A. PURCHASES GENERALLY. To pay for and receive securities purchased
for the account of such Portfolio, payment to be made only (a) upon receipt of
the securities by State Street (or any bank qualified under the 1940 Act to act
as custodian of the assets of a registered management investment company (a
"Qualified Bank") and appointed by State Street pursuant to Section 8A hereof as
State Street's agent for this purpose or appointed as sub-custodian pursuant to
Section 8B hereof), registered as provided in Section 3B hereof or in form for
transfer satisfactory to State Street, (b) in the case of a purchase effected
through a Depository System, in accordance with the conditions set forth in
Section 3D hereof, (c) in the case of repurchase agreements entered into between
such Portfolio and State Street, against receipt of advice from a Depository
System that the securities owned by State Street which are the subject of such
repurchase agreement have been transferred to the Book Entry Account, the making
of an entry on the records of State Street reflecting such transfer, and
issuance of written evidence of the agreement by State Street to repurchase such
securities from such Portfolio, (d) in the case of repurchase agreements entered
into between such Portfolio and a person other than State Street, against
delivery of the securities which are the subject of such repurchase agreement in
certificate form or receipt of advice from a Depository System that such
securities have been transferred to the Book Entry Account, the making of any
entry on the records of State Street reflecting such transfer, and receipt of
written evidence of the agreement by such person to repurchase such securities
from such Portfolio, or (e) for transfer to an account of the fund in any bank,
whether domestic or foreign; such transfer may be affected prior to receipt of a
confirmation from a broker and/or the applicable bank pursuant to Proper
Instructions from the Fund as defined in Section 9. All securities accepted by
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Xxxxx Xxxxxx shall be accompanied by payment of, or a "due xxxx" for, any
dividends, interest or other distributions of the issuer, due the purchaser. In
any and every case of a purchase of securities for the account of such Portfolio
where payment is made by State Street in advance of receipt of the securities
purchased, State Street shall be absolutely liable to the Fund for such
securities to the same extent as if the securities had been received by State
Street, except that in the case of repurchase agreements entered into by such
Portfolio with a bank which is a member of the Federal Reserve System State
Street may transfer funds to the account of such bank prior to the receipt of
written evidence that the securities subject to such repurchase agreements have
been transferred by book-entry into the Book Entry Account, provided that such
securities have in fact been so transferred by book-entry. Repurchase
agreements purchased by GSFG Joint Account shall also be governed by the
provisions of this Section 4A.
B. DIVIDENDS AND DISTRIBUTIONS. To release or otherwise apply cash
for the payment of dividends or other distributions to Unitholders of such
Portfolio which are payable in cash.
C. DISBURSEMENTS AND LIABILITIES. To make or cause to be made
disbursements for the payment on behalf of the Fund with respect to such
Portfolio of interest, taxes, investment advisory and transfer agency fees and
operating expenses, including registration and qualification costs and other
expenses of issuing and selling Units of such Portfolio or changing its capital
structure, whether or not such expenses shall be in whole or in part capitalized
or treated as deferred expenses.
D. REDEMPTIONS OF FUND UNITS. Subject to the Declaration of Trust,
the Fund's then current Prospectus (which term, as used herein, shall be deemed
to include the Fund's then current Statement of Additional Information) and
applicable resolutions of the Fund's Trustees, to make funds available in
accordance with the then current Prospectus for payment to
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Unitholders who have delivered to the Fund a request for redemption of their
Units by the Fund pursuant to such Prospectus.
E. GSFG JOINT ACCOUNT. To transfer cash to the GSFG Joint Account.
F. SECURITIES LOANS. To return cash held as collateral for Loaned
Securities, such return to be made only (a) upon receipt of the Loaned
Securities by State Street (or any Qualified Bank appointed by State Street
pursuant to Section 8A hereof as State Street's agent for this purpose or
appointed as sub-custodian pursuant to Section 8B hereof), registered as
provided in Section 3B hereof or in form for transfer satisfactory to State
Street or (b) in case the return of the Loaned Securities is to be effected
through a Depository System, in accordance with the conditions set forth in
Section 3D hereof. All Loaned Securities accepted by State Street shall be
accompanied by payment of, or a "due xxxx" for, any dividends, interest or other
distributions of the issuer due such Portfolio. In any and every case of a
return of Loaned Securities where the return of collateral is made by State
Street in advance of receipt of the Loaned Securities, State Street shall be
absolutely liable to the Fund for such Loaned Securities to the same extent as
if the securities had been received by State Street, except that in the case of
securities loans entered into by such Portfolio with a bank which is a member of
the Federal Reserve System, State Street may transfer collateral to the account
of such bank prior to the receipt of written evidence that the Loaned Securities
have been transferred by book-entry into the Book Entry Account, provided that
such Loaned Securities have in fact been so transferred by book-entry.
G. OTHER PURPOSES. To make or cause to be made disbursements for
any other purpose which is declared in such instructions to be a proper trust
purpose; provided, however,that before making any such disbursement State Street
shall have received a copy of a resolution of the Trustees certified by the
Secretary of the Fund specifying the amount of such disbursement,
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setting forth the purpose for which such disbursement is to be made, declaring
such purpose to be a proper trust purpose and naming the person(s) to whom the
disbursement is to be made.
5. RELEASE AND DELIVERY OF SECURITIES. State Street shall have the sole
power to release or deliver any securities of a Portfolio held by it pursuant to
this Agreement, including securities held in the GSFG Joint Account. The term
"account of such Portfolio" as used in this Section 5 shall also be deemed to
include the GSFG Joint Account. Upon receipt of proper instructions, State
Street will transfer, exchange or deliver securities held by it hereunder only
for the following purposes:
A. SALES. Upon receipt of payment therefor, to deliver securities
which have been sold for the account of such Portfolio. All such payments shall
be made in Federal funds except when the Fund's investment adviser has advised
State Street that such payments are to be made in clearing house or other funds,
in which event payment shall be made in clearing house or other funds.
B. REDEMPTION OR MATURITY. To deliver securities owned for the
account of such Portfolio to the issuer thereof or its agent when such
securities are called, redeemed, retired or otherwise become payable; provided,
that in any such case, the cash or other consideration payable in respect
thereof is to be delivered to State Street.
C. CHANGES OF NAME AND DENOMINATION. To deliver securities owned
for the account of such Portfolio to the issuer thereof or its agent for
transfer into the name of the Fund or State Street or a nominee of either, or
for exchange for a different number of bonds, certificates, or other evidence
representing the same aggregate face amount or number of units bearing the same
interest rate, maturity dates and call provisions, if any; provided, that in any
such case, the new securities are to be delivered to Xxxxx Xxxxxx.
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X. XXXXXX DELIVERY. Upon the sale of such securities for the account
of the Fund, to the broker or its clearing agent, against a receipt, for
examination in accordance with "street delivery" custom; provided that in any
such case, State Street shall have no responsibility or liability for any loss
arising from the delivery of such securities prior to receiving payment for such
securities except as may arise from State Street's own negligence or willful
misconduct.
E. SECURITIES AS COLLATERAL FOR BORROWINGS. To deliver securities
owned for the account of such Portfolio for the purpose of pledge or
hypothecation to secure any loan incurred by the Fund, provided that securities
shall be released only upon payment to State Street of the monies borrowed,
except that in cases where additional collateral is required to secure a
borrowing already made, subject to proper prior authorization, further
securities may be delivered for that purpose. Upon receipt of proper
instructions, State Street shall pay such loan upon redelivery to it of the
securities pledged or hypothecated therefor and upon surrender of the note or
notes evidencing the loan.
F. SECURITIES LOANS.
(i) To deliver securities owned for the account of such Portfolio for
the purpose of making a loan of such securities to another person, provided that
the securities shall be delivered only: (a)(I) upon receipt by State Street (or
any Qualified Bank appointed by State Street pursuant to Section 8A hereof as
State Street's agent for this purpose or appointed as sub-custodian pursuant to
Section 8B hereof) of the collateral for such loan, registered (in the case of
collateral in the form of securities) as provided in Section 3B hereof or in
form for transfer satisfactory to State Street or (II) in case the transfer of
collateral is effected through a Depository System, in accordance with the
conditions set forth in Section 3D hereof and (b) upon receipt of written
evidence of the agreement by the person to whom the securities are being loaned
that such person is borrowing such securities from such Portfolio. In any and
every case of a loan of
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securities for the account of such Portfolio where transfer of the Loaned
Securities is made by State Street in advance of receipt of the collateral,
State Street shall be absolutely liable to the Fund for such collateral to the
same extent as if the collateral had been received by State Street, except that
in the case of loans of securities entered by such Portfolio with a bank which
is a member of the Federal Reserve System, State Street may transfer the Loaned
Securities to the account of such bank prior to the receipt of written evidence
that the collateral for such loan of securities has been transferred by book-
entry into the Book Entry Account, provided that such collateral has in fact
been so transferred by book-entry.
(ii) To return securities held as collateral for loans of securities
by such Portfolio, provided that such return is made only in accordance with the
conditions set forth in Section 4F hereof.
G. EXCHANGES, DEPOSITS, TENDERS, ETC. To exchange securities or
interim receipts or temporary securities held by it or by an agent appointed
pursuant to Section 8A hereof or any sub-custodian appointed pursuant to Section
8B hereof for the account of such Portfolio for other securities alone or for
other securities and cash, and to expend cash, insofar as cash is available, in
connection with any merger, consolidation, reorganization, recapitalization,
conversion or in connection with the exercise of subscription or purchase
rights, or otherwise; to deposit any such securities and cash in accordance with
the terms of any reorganization or protective plan or otherwise, and to deliver
securities to the designated depository or other receiving agent in response to
tender offers or similar offers to purchase received in writing; provided that:
(i) except as directed by proper instructions received in timely
fashion for State Street to act thereon prior to any expiration date
(which shall be presumed to be three business days prior to such date
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unless State Street has advised the Fund of a different period) and
giving full details of the time and method of submitting securities in
response to any tender or similar offer, exercising any subscription
or purchase right or making any exchange pursuant to this Section 5G
and subject to State Street having fulfilled its obligations under
Section 7C hereof pertaining to notices or announcements, State Street
shall be under no obligation regarding any tender or similar offer,
subscription or purchase right or exchange except to exercise its best
efforts;
(ii) when such securities are in the possession of an agent
appointed pursuant to Section 8A hereof, the proper instructions
referred to in the preceding clause (i) must be received by State
Street in timely enough fashion (which shall be presumed to be four
business days unless State Street has advised the Fund of a different
period) for State Street to notify the agent in sufficient time to
permit such agent to act prior to any expiration date; and
(iii) when the securities are in the possession of a sub-
custodian appointed to Section 8B hereof, the proper instructions must
be received by the sub-custodian in timely enough fashion (which shall
be presumed to be three business days unless the sub-custodian has
advised the Fund of a different period) to permit the sub-custodian to
act prior to any expiration date.
H. OTHER PURPOSES. To release or deliver any securities held by it
for the account of such Portfolio for any other purpose which such instructions
declare to be a proper trust purpose; provided, however, that before making any
such release or delivery State Street shall have received a copy of a resolution
of the Trustees certified by the Secretary of the Fund specifying the securities
to be delivered, setting forth the purpose for which
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such release or delivery is to be made, declaring such purpose to be a proper
trust purpose and naming the person(s) to whom such release or delivery is to be
made.
6. RECORDS; ACCOUNTS AND REPORTING.
A. RECORDS. State Street shall create, maintain and retain all
records relating to its activities and obligations under this Agreement in such
manner as will enable the Fund and State Street to meet their respective
obligations under: (i) the 1940 Act, particularly Sections 30 and 31 thereof,
and the rules and regulations thereunder, including the preparation and filing
of all required periodic and other reports, (ii) applicable Federal and State
tax laws, and (iii) any other law or administrative rule or procedure which may
be applicable to the Fund or State Street. All records maintained by State
Street in connection with the performance of its duties under this Agreement
will remain the property of the Fund, shall be returned to the Fund promptly
upon request and, in the event of termination of this Agreement, will be
delivered in accordance with Section 14 hereof.
B. ACCOUNTS AND REPORTINGS. State Street shall keep the books of
account for the Fund and each of its Portfolios, including all books necessary
to permit prompt determinations of the federal tax status of the Fund, each such
Portfolio and the dividends and other distributions declared and/or paid thereby
as and to the extent provided in or contemplated by the Fund's Prospectus as in
effect from time to time (such determinations being collectively referred to
herein as "Tax Determinations"). State Street shall render statements or copies
thereof and shall make Tax Determinations, from time to time as requested by the
President, the Treasurer or the investment adviser of the Fund, such statements
to include interim monthly and complete quarterly, semi-annual and annual
financial statements, which contain, among other things, a list of the
securities for which State Street is accountable to the Fund under this
Agreement as of the end of each month, and a list of all security transactions
that remain unsettled at such time. It is understood and agreed that the Fund
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may request and State Street shall provide each business day a list of the
securities for which State Street is accountable to the Fund under this
Agreement as of the end of such day. In addition, State Street shall promptly
notify the Fund's investment adviser by telephone on each day when there has
been a failure to timely settle any security transaction on that day.
C. ACCESS TO RECORDS. Without limiting Section 3D hereof, subject
to security requirements of State Street applicable to its own employees having
access to similar records with State Street and such regulations as to the
conduct of such matters as may be reasonably imposed by State Street after prior
consultation with an officer of the Fund or its investment adviser, the books
and records of State Street pertaining to its actions under this Agreement shall
be open to inspection and audit at reasonable times by the Trustees of,
attorneys for, and auditors employed by, the Fund.
D. COOPERATION WITH THE FUND AND ITS AUDITORS. State Street shall
cooperate with the Fund and the Fund's independent public accountants in
connection with: (i) the preparation of reports to Unitholders of the Fund, to
the Securities and Exchange Commission (including all required periodic and
other reports), to State securities commissioners, and to others, (ii) annual
and other audits of the books and records of the Fund, and (iii) other matters
of a like nature. State Street shall take all reasonable action necessary for
the Fund to obtain from year to year unqualified opinions from the Fund's
independent public accountants with respect to State Street's activities
hereunder in connection with the preparation of the aforementioned reports and
audits.
7. ADDITIONAL DUTIES OF STATE STREET.
A. COLLECTIONS. Unless otherwise directed by proper instructions,
State Street shall collect, receive and deposit in the bank account or accounts
maintained pursuant to Section 2 hereof all income, principal and other payments
in respect of the securities held by it under this Agreement and do all other
things
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necessary or proper in connection with the collection of such income, principal
and other payments. Without limiting the generality of the foregoing, State
Street shall:
(i) present for payment on the date of payment all coupons and
other items requiring presentation;
(ii) present for payment all securities which may mature or be
called, redeemed, retired or otherwise become payable on the date such
securities become payable;
(iii) endorse and deposit for collection, in the name of the
Fund, checks, drafts or other negotiable instruments on the same day
as received;
(iv) execute ownership and other certificates and affidavits for
all Federal and State tax purposes in connection with the collection
of income; and
(v) notify the Fund as soon as reasonably practicable whenever
income, principal or other payments due on securities are not
collected in due course.
In any case in which State Street does not receive any such due and
unpaid income, principal or other payment within a reasonable time after it has
made proper demands for the same (which shall be presumed to consist of at least
three demand letters and at least one telephonic demand), it shall so notify the
Fund in writing, including copies of all demand letters, any written responses
thereto, and memoranda of telephonic demands and oral responses to written and
telephonic demands, and await proper instructions. State Street shall not be
obliged to take legal action for collection unless and until reasonably
indemnified to its satisfaction. State Street shall, in addition, notify the
Fund as soon as reasonably practicable whenever income due on securities is not
collected in due course.
B. DISTRIBUTIONS, RIGHTS, ETC. State Street shall receive and
collect all distributions, rights and other items of like nature in respect of
securities held by it under this
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Agreement and deal with the same pursuant to proper instructions relative
thereto.
C. PROXIES, NOTICES, VOTING, ETC. State Street shall promptly
deliver or mail to the Fund all forms of proxies and all notices of meetings,
calls, maturities, tender offers, exchange offers and expirations of rights and
any other notices, consents, or announcements affecting or relating to
securities held by State Street, its agents appointed pursuant to Section 8A
hereof and all sub-custodians appointed pursuant to Section 8B hereof, and upon
receipt of proper instructions, State Street shall execute and deliver or cause
its nominee to execute and deliver such proxies or other authorizations as may
be required. Neither State Street, such agents or sub-custodians, nor their
respective nominees shall vote upon any of the securities or execute any proxy
to vote thereon or give any consent or take any other action with respect
thereto (except as otherwise herein provided) unless directed to do so by proper
instructions.
D. VALUATIONS; NET INCOME COMPUTATION. Unless otherwise directed by
proper instructions, State Street shall compute and determine, as of the time
and on those days specified in the Fund's then current Prospectus, the net asset
value of a Unit of each Portfolio, such computation and determination to be made
in accordance with the Fund's then current Prospectus by a vice president,
assistant vice president or assistant secretary of State Street, and shall
promptly notify the Fund of the result of such computation and determination.
In determining market values to be used in computing such net asset value State
Street shall rely upon security valuations received by telephone or otherwise
through the Fund's investment adviser or in a manner otherwise designated by
proper instructions. In addition, in computing such net asset value State
Street may rely upon information or directions furnished to it by the Trustees,
any officer or the investment adviser of the fund relative to: (i) liabilities,
expense accruals and reserves of the Fund and (ii) the fair value of any right
or other property of the Fund. State Street's
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liability to the Fund for the accuracy of quotations received from any source
designated by proper instructions will be no greater than the liability which
such source, or its provider, has to State Street.
Unless advised otherwise by proper instructions, State Street shall also
calculate each day the net investment income, short and long term capital gain
income and other income of such Portfolio for such day and shall promptly advise
the Fund of the results of such calculations. Such calculations shall be made
in accordance with the Fund's then current Prospectus.
E. NONDISCRETIONARY DETAILS. In general, State Street shall attend
to all nondiscretionary details in connection with the sale, exchange,
substitution, purchase, transfer or other dealing with securities or property of
the Fund except as otherwise from time to time directed by proper instructions.
F. PROCEEDS OF SALE OF UNITS OF FUND. Upon receipt of funds for the
purchase of Units of any Portfolio, State Street shall promptly deposit the
purchase price in the account or accounts maintained pursuant to Section 2
hereof and notify the Fund when such action has been completed and such funds
constitute Federal funds.
8. APPOINTMENT OF AGENTS AND SUB-CUSTODIANS.
A. APPOINTMENT OF AGENTS. State Street, as custodian, may at any
time or times appoint (and may at any time remove) any other Qualified Bank as
its agent to carry out such of the provisions of this Agreement as State Street
may from time to time direct, provided that the appointment of such agent shall
not relieve State Street of any of its responsibilities under this Agreement.
B. APPOINTMENT OF SUB-CUSTODIAN. State Street, as custodian, may
from time to time employ one or more Qualified Banks as sub-custodians, but only
in accordance with the terms and
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conditions set forth in a resolution of the Trustees of the Fund authorizing the
appointment of each particular sub-custodian, it being understood and agreed
that: (i) State Street shall have no more responsibility or liability to the
Fund on account of any actions or omissions of any sub-custodian so employed
than such sub-custodian has to State Street; and (ii) the responsibility or
liability of the sub-custodian to State Street shall conform to the resolution
of the Trustees of the Fund authorizing the appointment of the particular sub-
custodian.
9. PROPER INSTRUCTIONS; RELIANCE ON DOCUMENTS.
A. PROPER WRITTEN INSTRUCTIONS. State Street shall be deemed to
have received proper instructions upon receipt of written instructions
(including receipt by telecopier, tested telegram, cable or Telex), which may be
continuing instructions, signed by a majority of the Trustees of the Fund or by
not less than two of the persons the Trustees shall have from time to time
authorized to give the particular class of instructions in questions. Different
persons may be authorized to give instructions for different purposes,and
instructions may be general or specific in terms. A certified copy of a by-law,
resolution or action of the Trustees of the Fund may be received and accepted by
State Street as conclusive evidence of the authority of any such persons to act
and may be considered to be in full force and effect until receipt of written
notice (or oral notice followed by written confirmation within seven days) to
the contrary.
B. PROPER ORAL INSTRUCTIONS. The Fund may authorize one or more
designated persons to issue oral (such term as used herein including, without
limitation, telephonic) instructions, specifying the class or classes of
instructions that may be so issued, in which case the Fund shall deliver to
State Street resolutions of the Trustees to such effect. Such instructions when
given in accordance with the provisions hereof and such resolution shall be
deemed proper instructions. Two or more of the persons designated by the
Trustees to give oral instructions shall promptly confirm such oral instructions
in writing to State Street; but
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Xxxxx Xxxxxx shall be under no obligation to insist upon delivery to it of any
such written confirmation or to investigate the reason for its nonreceipt of any
such written confirmation. In case of conflict between oral instructions given
by a person designated in the resolution of the Trustees referred to in the
first sentence of this Section 9B and any written proper instructions, the
instructions most recently received by State Street shall prevail, and in case
of conflict between oral instructions given by a person designated in such
resolution and any written confirmation or purported confirmation of oral
instructions, such written confirmation shall prevail; provided that any
transaction initiated by State Street pursuant to such oral instructions, may,
but need not, be completed by State Street notwithstanding State Street's
receipt of conflicting subsequent proper instructions or written confirmation or
purported confirmation subsequent to State Street's initiation of such
transaction.
C. COMPLIANCE WITH TRUST AGREEMENT. In performing its duties
generally, and more particularly in connection with the purchase, sale and
exchange of securities made by or for the Fund, State Street may take cognizance
of the provisions of the Trust Agreement and By-Laws of the Fund as from time to
time amended; however, except as otherwise expressly provided herein, it may
assume unless and until notified in writing to the contrary that instructions
purporting to be proper instructions received by it are not in conflict with or
in any way contrary to any provision of the Trust Agreement and By-Laws of the
Fund, as from time to time amended, or resolutions or proceedings of the
Trustees of the Fund.
D. RELIANCE ON DOCUMENTS. So long as and to the extent that it is
in the exercise of reasonable care, State Street, as custodian: (i) shall not
be responsible for the title, validity or authenticity of any security or
evidence of title thereto received by it or delivered by it pursuant to this
Agreement, (ii) shall be protected in acting upon any document referred to in
Section 9A hereof reasonably believed by it to be genuine and to have been
properly executed in accordance with such Section 9A, and (iii)
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shall, except as otherwise provided in this Agreement, be entitled to receive as
conclusive proof of any fact or matter required to be ascertained by it
hereunder a certificate signed by any officer of the Fund or its investment
adviser or any other person authorized by the Trustees of the Fund.
10. RELIANCE ON ADVICE OF COUNSEL; INDEMNITY.
A. RELIANCE ON THE ADVICE OF COUNSEL. State Street, as custodian,
shall be entitled to receive, and act upon, advice of counsel (which counsel
shall be selected by State Street with reasonable care based on such counsel's
professional competence and reputation or shall be counsel for the Fund) and
shall be without liability for any action reasonably taken pursuant to such
advice, provided that such action taken is not in violation of applicable
Federal or State laws or regulations and is taken in good faith and without
negligence.
B. INDEMNITY. State Street shall be indemnified and held harmless
by the Fund for any action taken by it in carrying out the terms and provisions
of this Agreement if done in good faith and without negligence or misconduct on
State Street's part; provided that (i) State Street shall not be entitled to
indemnification in those situations where State Street is liable to the Fund
pursuant to Section 3D(c) hereof, (ii) State Street will use all reasonable care
to identify and notify the Fund promptly concerning any situation which
presents, or appears likely to present, the probability of such a claim for
indemnification against the Fund, and (iii) in any case in which the Fund may be
asked to so indemnify and hold harmless State Street, the Fund shall have been
fully and promptly advised for all pertinent facts concerning the situation in
question. The Fund, using counsel of its choice, shall have the option to
defend State Street against any claim which may be a subject of this
indemnification and shall be given timely notice by State Street to permit it to
exercise that option as early as possible with respect to such claim. In the
event the Fund so elects to defend State Street, the Fund will notify State
Street, and thereupon the Fund shall take over
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complete defense of the claim, and, after it does so, State Street shall incur
no further legal or other expenses for which it shall be entitled to
indemnification from the Fund. State Street shall in no case confess any claim
or make any compromise in any case in which the Fund will be asked to indemnify
State Street, except with the Fund's prior written consent.
If the Fund requires State Street to advance cash or securities for
any purpose or in the event that State Street or its nominee shall incur or be
assessed any taxes, charges, expenses, assessments, claims or liabilities in
connection with the performance of this Agreement, except such as may arise from
its or its nominee's own negligent action, negligent failure to act or willful
misconduct, any property at any time held for the account of the Fund shall be
security therefor and should the Fund fail to repay State Street promptly, State
Street shall be entitled to utilize available cash and to disposes of Fund
assets to the extent necessary to obtain reimbursement.
11. COMPENSATION; REIMBURSEMENT. The Fund shall pay to State Street,
as custodian, the compensation and expense reimbursement set forth in the
schedule of even date herewith delivered by State Street to the Fund until a
different compensation and expense reimbursement schedule shall be agreed upon
in writing between the parties (including the Fund's ratable share of the
compensation and expense reimbursement with regard to the GSFG Joint Account
based on the percentage of the total amount in the Account on any day
represented by its share of the Account).
12. EFFECTIVE PERIOD, TERMINATION AND AMENDMENT. This Agreement
shall become effective as of the date of its execution, shall continue in full
force and effect until terminated as hereinafter provided, may be amended at any
time by mutual agreement of the parties hereto and may be terminated by either
party by an instrument in writing delivered or mailed, postage prepaid, to the
other party, such termination to take effect not sooner than 120 days after the
date of such delivery or mailing;
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provided that the Fund shall not amend or terminate this Agreement in
contravention of any applicable Federal or State laws or regulations, or any
provision of the Trust Agreement or the Fund's By-Laws, as the same may from
time to time be amended. The Fund may at any time by action of its Trustees
substitute another bank or trust company for State Street by giving notice as
specified above to State Street. Upon termination of this Agreement the Fund
shall pay to State Street such compensation as may be due as of the date of such
termination in accordance with Section 11 hereof.
13. INTERPRETATIVE AND ADDITIONAL PROVISIONS. In connection with the
operation of this Agreement, State Street and the Fund may agree from time to
time, by written instrument signed by both parties, on such provisions
interpretative of or in addition to the provisions of this Agreement as may in
their joint option be consistent with the general tenor of this Agreement,
provided that no such interpretative or additional provisions shall contravene
any applicable Federal or State laws or regulations, or any provisions of the
Trust Agreement or the Fund's By-Laws, as the same may from time to time be
amended. No interpretative or additional provisions made as provided in the
preceding sentence shall be deemed to be an amendment of this Agreement.
14. SUCCESSOR CUSTODIAN.
A. APPOINTMENT OF SUCCESSOR BY FUND. If a successor custodian is
appointed by resolution of the Trustees of the Fund and a certified copy of such
resolution is delivered to Xxxxx Xxxxxx, Xxxxx Xxxxxx shall, upon termination of
this Agreement or substitution of such successor for State Street, deliver to
such successor custodian at the office of State Street, duly endorsed and in
proper form for transfer, all securities then held by State Street hereunder (or
by an agent or sub-custodian of State Street) and all funds or other property of
the Fund deposited with or held by State Street hereunder (or by any agent or
sub-custodian of State Street).
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B. DELIVERY PURSUANT TO UNITHOLDER RESOLUTION. In the event that
this Agreement is to be terminated but no new custodian can be found by the
Fund, the Fund shall, before authorizing the delivery of such securities, funds
and other property to anyone other than a successor custodian, submit to its
Unitholders the question of whether the fund shall be liquidated or shall
function without a custodian. Upon approval by the Unitholders for the Fund to
liquidate or function without a custodian State Street shall, in like manner at
its office, upon receipt of a certified copy of a resolution of the Unitholders
of the Fund deliver such securities, funds and other property in accordance with
such resolution.
C. SELECTION OF SUCCESSOR BY STATE STREET. In the event that this
Agreement is terminated and no certified resolution of the Trustees of the Fund
appointing a successor custodian or certified copy of a resolution of the
Unitholders shall have been delivered to State Street on or before the date when
such termination shall become effective, then State Street shall have the right
to deliver to a bank or trust company doing business in Boston, Massachusetts,
of its own selection, having an aggregate capital, surplus, and undivided
profits, as shown by its last published report, of not less than $100 million,
all securities, funds, property and instruments of the Fund held by State Street
under this Agreement (or any agent or sub-custodian of State Street) and all
instruments held by State Street (or such agent or sub-custodian) relative
thereto. Thereafter, such bank or trust company shall be the successor
custodian to State Street under this Agreement.
D. CONTINUATION AFTER TERMINATION. In the event that securities,
funds, and other property of the Fund remain in the possession of State Street
after the date of termination hereof owing to failure of the Fund to procure the
certified copy of a resolution of its Unitholders above referred to or of the
Trustees to appoint a successor custodian, State Street shall be entitled to
fair compensation for its services during such period and the
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provisions of this Agreement relating to the duties and obligations of State
Street shall remain in full force and effect.
15. CIRCULATION OF PRINTED MATTER. The Fund shall not circulate any
printed matter which contains any reference to State Street without the prior
written approval of State Street, excepting solely such printed matter as merely
identifies State Street as custodian. The Fund will submit printed matter
requiring approval to State Street in draft form, allowing sufficient time for
review by State Street and its counsel prior to any deadline for printing.
16. COMMUNICATIONS. Notices and other writings delivered or mailed
postage prepaid to the Fund in care of Xxxxxxx, Xxxxx & Co., Funds Group, 0000
Xxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: X.X. Xxxxxxx, Xx., or to State
Street at 0000 Xxxxxxxx Xxxxx, Xxxxx Xxxxxx, Xxxxxxxxxxxxx 00000, or to such
other address as the Fund or State Street may hereafter specify by written
notice to the most recent address specified by the party to whom such notice is
addressed, shall be deemed to have been properly delivered or given hereunder to
the respective addressee.
17. GENERAL. This Agreement shall be binding on and shall inure to the
benefit of the Fund and State Street and their respective successors, shall be
construed according to the laws of The Commonwealth of Massachusetts and may be
executed in two or more counterparts, each of which shall be deemed an original.
This Agreement may not be assigned by State Street without the written consent
of the Fund authorized and approved by a resolution of the Trustees. The
headings in this Agreement have been inserted for convenience of reference only
and shall not affect the meaning or interpretation of this Agreement.
18. UNITHOLDER LIABILITY. This Agreement is executed by or on behalf of
the Fund and the obligations hereunder are not binding upon any of the Trustees,
officers or Unitholders of the Fund
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individually but are binding only upon the Fund and its assets and property.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed as of the day and year first above written.
TRUST FOR CREDIT UNIONS
ATTEST:
By Xxxxxx X. Xxxxx By Xxxx X. Xxxxxxxxx
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As its Secretary As its Chairman
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ATTEST:
Xxxxx Xxxxxx Xxxx & Xxxxx Xxxxx Xxxxxx Xxxx & Trust
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By X. Xxxxxx By Xxxxxx Xxxxxxxx
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As its Assistant Secretary As its Vice President
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