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CUSTODIAN CONTRACT
Between
NSB ASSET FUND, INC.
and
ZIONS FIRST NATIONAL BANK
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TABLE OF CONTENTS
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1. Employment of Custodian and Property to be Held by It ............................4
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2. Duties of the Custodian With Respect to Property of the Funds Held By the
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Custodian.........................................................................4
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2.1 Holding Securities.........................................................4
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2.2 Delivery of Securities.....................................................5
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2.3 Registration of Securities.................................................7
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2.4 Bank Accounts..............................................................7
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2.5 Payments for Shares........................................................7
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2.6 Availability of Federal Funds..............................................8
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2.7 Collection of Income.......................................................8
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2.8 Payment of Fund Moneys.....................................................8
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2.9 Liability for Payment in Advance of Receipt of Securities Purchased........9
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2.10 Payments for Repurchases or Redemptions of Shares of a Fund................9
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2.11 Appointment of Agents......................................................10
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2.12 Deposit of Fund Assets in Securities System................................10
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2.13 Segregated Account.........................................................11
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2.14 Joint Repurchase Agreements................................................11
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2.15 Ownership Certificates for Tax Purposes....................................12
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2.16 Proxies....................................................................12
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2.17 Communications Relating to Fund Portfolio Securities.......................12
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2.18 Proper Instructions........................................................12
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2.19 Actions Permitted Without Express Authorization............................13
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2.20 Evidence of Authority......................................................13
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2.21 Notice to Trust by Custodian Regarding Cash Movement.......................13
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3. Duties of Custodian With Respect to the Books of Account and Calculation of
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Net Asset Value and Net Income....................................................13
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4. Records...........................................................................14
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5. Opinion of Fund's Independent Public Accountants..................................14
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6. Reports to Fund by Independent Public Accountants.................................14
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7. Compensation of Custodian.........................................................15
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8. Responsibility of Custodian.......................................................15
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9. Effective Period, Termination and Amendment.......................................16
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10. Successor Custodian...............................................................17
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</TABLE>
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<TABLE>
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11. Interpretive and Additional Provisions............................................17
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12. Utah Law to Apply.................................................................17
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13. Notices...........................................................................18
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14. Counterparts......................................................................18
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15. Limitations of Liability..........................................................18
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</TABLE>
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CUSTODIAN CONTRACT
This Contract between NSB ASSET FUND, INC., (the "Fund"), a Maryland
corporation, organized and existing under the laws of the state of Maryland,
having its principal place of business at One South Main, Suite 1380, Salt Lake
City, Utah 84111, ATTN: Kay Hall, and ZIONS FIRST NATIONAL BANK, a national
banking association, having its principal place of business at One South Main,
Suite 1380, Salt Lake City, Utah 84111, hereinafter called the "Custodian,"
WITNESSETH: That in consideration of the mutual covenants and agreements
hereinafter contained, the parties hereto agree as follows:
1. Employment of Custodian and Property to be Held by It
The Fund hereby employs the Custodian as the custodian of the assets of the
Fund. Except as otherwise expressly provided herein, the securities and other
assets of the Fund shall be segregated from all other persons and entities. The
Fund will deliver to the Custodian all securities and cash owned by the Fund and
all payments of income, payments of principal or capital distributions received
by the Fund with respect to all securities owned by the Fund from time to time,
and the cash consideration received by the Fund for shares ("Shares") of common
stock of the Fund as may be issued or sold from time to time. The Custodian
shall not be responsible for any property of the Fund held or received by the
Fund and not delivered to the Custodian.
Upon receipt of "Proper Instructions" (within the meaning of Section 2.18),
the Custodian shall from time to time employ one or more sub-custodians upon the
terms specified in the Proper Instructions.
2 Duties of the Custodian With Respect to Property of the Fund Held By the
Custodian
2.1 Holding Securities. The Custodian shall hold and physically segregate
for the account of the Fund all non-cash property, including all
securities owned by the Fund, other than securities which are maintained
pursuant to Section 2.12 in a clearing agency which acts as a securities
depository or in a book-entry system authorized by the U.S. Department
of the Treasury, collectively referred to herein as "Securities System,"
or securities which are subject to a joint repurchase agreement with
affiliated funds pursuant to Section 2.14. The Custodian shall maintain
records of all receipts, deliveries and locations of such securities,
together with a current inventory thereof, and shall conduct periodic
physical inspections of certificates representing stocks, bonds and
other securities held by it under this Contract in such manner as the
Custodian shall determine from time to time to be advisable in order to
verify the accuracy of such inventory. With respect to securities held
by any agent appointed pursuant to Section 2.11 hereof, and with respect
to securities held by any sub-custodian appointed pursuant to Section 1
hereof, the Custodian may rely upon certificates from such agent as to
the holdings of such agent and from such sub-custodian as to the
holdings of such
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sub-custodian, it being understood that such reliance
in no way relieves the Custodian of its responsibilities under this
Contract. The Custodian will promptly report to the Fund the results of
such inspections, indicating any shortages or discrepancies uncovered
thereby, and take appropriate action to remedy any such shortages or
discrepancies.
2.2 Delivery of Securities . The Custodian shall release and deliver
securities owned by the Fund held by the Custodian or in a Securities
System account of the Custodian only upon receipt of Proper
Instructions, which may be continuing instructions when deemed
appropriate by the parties, and only in the following cases:
(1) Upon sale of such securities for the account of the Fund and receipt
of payment therefor;
(2) Upon the receipt of payment in connection with any repurchase
agreement related to such securities entered into by the Fund;
(3) In the case of a sale effected through a Securities System, in
accordance with the provisions of Section 2.12 hereof;
(4) To the depository agent in connection with tender or other
similar offers for portfolio securities of the Fund, in
accordance with the provisions of Section 2.17 hereof;
(5) 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 is to be
delivered to the Custodian;
(6) 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 2.11 or into the name or nominee name of any
sub-custodian appointed pursuant to Section 1; or for exchange
for a different number of bonds, certificates or other evidence
representing the same aggregate face amount or number of units;
provided that, in any such case, the new securities are to be
delivered to the Custodian;
(7) 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, the Custodian 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 the Custodian's own failure to act in
accordance with the standard of reasonable care or any higher
standard of care imposed upon the Custodian by any applicable law
or regulation if such above-stated standard of reasonable care
were not part of this Contract;
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(8) For exchange or conversion pursuant to any plan of merger,
consolidation, recapitalization, reorganization or readjustment
of the securities of the issuer of such securities, or pursuant
to provisions for conversion contained in such securities, or
pursuant to any deposit agreement; provided that, in any such
case, the new securities and cash, if any, are to be delivered to
the Custodian;
(9) In the case of warrants, rights or similar securities, the
surrender thereof in the exercise of such warrants, rights or
similar securities or the surrender of interim receipts or
temporary securities for definitive securities; provided that, in
any such case, the new securities and cash, if any, are to be
delivered to the Custodian;
(10) For delivery in connection with any loans of portfolio securities
of the Fund, but only against receipt of adequate collateral in
the form of (a) cash, in an amount specified by the Fund, (b)
certificated securities of a description specified by the Fund,
registered in the name of the Fund or in the name of a nominee of
the Custodian referred to in Section 2.3 hereof or in proper form
for transfer, or (c) securities of a description specified by the
Fund, transferred through a Securities System in accordance with
Section 2.12 hereof;
(11) For delivery as security in connection with any borrowings
requiring a pledge of assets by the Fund, but only against
receipt of amounts borrowed, except that in cases where
additional collateral is required to secure a borrowing already
made, further securities may be released for the purpose;
(12) For delivery in accordance with the provisions of any agreement
among the Fund, the Custodian and a broker-dealer registered
under the Securities Exchange Act of 1934, as amended, (the
"Exchange Act") and a member of The National Association of
Securities Dealers, Inc. ("NASD"), relating to compliance with
the rules of The Options Clearing Corporation and of any
registered national securities exchange, or of any similar
organization or organizations, regarding escrow or other
arrangements in connection with transactions for the Fund;
(13) For delivery 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 transaction for a Fund;
(14) Upon receipt of instructions from the transfer agent ("Transfer
Agent") for the Fund, for delivery to such Transfer Agent or to
the holders of shares in connection with distributions in kind,
in satisfaction of requests by holders of Shares for repurchase
or redemption; and
(15) For any other proper corporate purpose, but only upon receipt of,
in addition to Proper Instructions, a certified copy of a
resolution of the Executive Committee of
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the Fund signed by an officer of the Fund and certified by its
Secretary or an Assistant Secretary, specifying the securities to
be delivered, setting forth the purpose for which such delivery
is to be made, declaring such purpose to be a proper corporate
purpose, and naming the person or persons to whom delivery of
such securities shall be made.
2.3 Registration of Securities. Securities held by the Custodian (other than
bearer securities) shall be registered in the name of the Fund or in the
name of any nominee of the Fund or of any nominee of the Custodian which
nominee shall be assigned exclusively to the Fund, unless the Fund has
authorized in writing the appointment of a nominee to be used in common
with other registered investment companies affiliated with the Fund, or
in the name or nominee name of any agent appointed pursuant to Section
2.11 or in the name or nominee name of any sub-custodian appointed
pursuant to Section 1. All securities accepted by the Custodian on
behalf of the Fund under the terms of this Contract shall be in "street
names" or other good delivery form.
2.4 Bank Accounts. The Custodian shall open and maintain a separate bank
account or accounts in the name of the Fund, subject only to draft or
order by the Custodian acting pursuant to the terms of this Contract,
and shall hold in such account or accounts, subject to the provisions
hereof, all cash received by it from or for the account of the Fund,
other than cash maintained in a joint repurchase account with other
affiliated funds pursuant to Section 2.14 of this Contract or by a
particular Fund in a bank account established and used in accordance
with Rule 17f-3 under the Investment Company Act of 1940, as amended,
(the "1940 Act"). Funds held by the Custodian for the Fund may be
deposited by it to its credit as Custodian in the Banking Department of
the Custodian or in such other banks or trust companies as it may in its
discretion deem necessary or desirable; provided, however, that every
such bank or trust company shall be qualified to act as a custodian
under the 1940 Act and that each such bank or trust company and the
funds to be deposited with each such bank or trust company shall be
approved by vote of a majority of the Board of Directors ("Board") of
the Fund. Such funds shall be deposited by the Custodian in its capacity
as Custodian for the Fund and shall be withdrawable by the Custodian
only in that capacity. If requested by the Fund, the Custodian shall
furnish the Fund, not later than twenty (20) days after the last
business day of each month, an internal reconciliation of the closing
balance as of that day in all accounts described in this section to the
balance shown on the daily cash report for that day rendered to the
Fund.
2.5 Payments for Shares. The Custodian shall make such arrangements with the
Transfer Agent of the Fund as will enable the Custodian to receive the
cash consideration due to the Fund and will deposit into the Fund's
account such payments as are received from the Transfer Agent. The
Custodian will provide timely notification to the Fund and the Transfer
Agent of any receipt by it of payments for Shares of the respective
Fund.
2.6 Availability of Federal Funds. Upon mutual agreement between the Fund
and the Custodian, the Custodian shall make federal funds available to
the Fund as of specified
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times agreed upon from time to time by the Fund and the Custodian in
the amount of checks, clearing house funds, and other non-federal
funds received in payment for Shares of the Fund which are deposited
into the Fund's accounts.
2.7 Collection of Income.
(1) The Custodian shall collect on a timely basis all income and
other payments with respect to registered securities held
hereunder to which the Fund shall be entitled either by law or
pursuant to custom in the securities business, and shall collect
on a timely basis all income and other payments with respect to
bearer securities if, on the date of payment by the issuer, such
securities are held by the Custodian or its agent thereof and
shall credit such income, as collected, to the Fund's custodian
account. Without limiting the generality of the foregoing, the
Custodian shall detach and present for payment all coupons and
other income items requiring presentation as and when they become
due and shall collect interest when due on securities held
hereunder. The collection of income due the Fund on securities
loaned pursuant to the provisions of Section 2.2 (10) shall be
the responsibility of the Fund. The Custodian will have no duty
or responsibility in connection therewith, other than to provide
the Fund with such information or data as may be necessary to
assist the Fund in arranging for the timely delivery to the
Custodian of the income to which the Fund is properly entitled.
(2) The Fund shall promptly notify the Custodian whenever income due
on securities is not collected in due course and will provide the
Custodian with monthly reports of the status of past due income.
The Fund will furnish the Custodian with a weekly report of
accrued/past due income for the Fund. Once an item is identified
as past due and the Fund has furnished the necessary claim
documentation to the Custodian, the Custodian will then initiate
a claim on behalf of the Fund. The Custodian will furnish the
Fund with a status report monthly unless the parties-otherwise
agree.
2.8 Payment of Fund Moneys. Upon receipt of Proper Instructions, which may
be continuing instructions when deemed appropriate by the parties, the
Custodian shall pay out moneys of the Fund in the following cases only:
(1) Upon the purchase of securities, futures contracts or options on
futures contracts for the account of the Fund but only (a)
against the delivery of such securities, or evidence of title to
futures contracts, to the Custodian (or any bank, banking firm or
trust company doing business in the United States or abroad which
is qualified under the 1940 Act to act as a custodian and has
been designated by the Custodian as its agent for this purpose)
"pursuant to Section 2.11 hereof" registered in the name of the
Fund or in the name of a nominee of the Custodian referred to in
Section 2.3 hereof or in proper form for transfer, (b) in the
case of a purchase effected through a Securities System, in
accordance with the conditions set forth in Section 2.12 hereof
or (c) in the case of repurchase agreements entered into between
the Fund and any other party, (i) against delivery of the
securities either
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in certificate form or through an entry crediting the
Custodian's account at the Federal Reserve Bank with such
securities or (ii) against delivery of the receipt evidencing
purchase for the account of the Fund of securities owned by the
Custodian along with written evidence of the agreement by the
Custodian to repurchase such securities from the Fund;
(2) In connection with conversion, exchange or surrender of
securities owned by the Fund as set forth in Section 2.2 hereof;
(3) For the redemption or repurchase of Shares of the Fund issued by
the Fund as set forth in Section 2.10 hereof;
(4) 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 to be in whole or part
capitalized or treated as deferred expenses;
(5) For the payment of any dividends on Shares of a Fund declared
pursuant to the governing documents of the Fund;
(6) For payment of the amount of dividends received in respect of
securities sold short;
(7) For any other proper purpose, but only upon receipt of, in
addition to Proper Instructions, a certified copy of a resolution
of the Board of Directors of the Fund signed by an officer of the
Fund and certified by its Secretary or an Assistant Secretary,
specifying the amount of such payment, setting forth the purpose
for which such payment is to be made, declaring such purpose to
be a proper purpose, and naming the person or persons to whom
such payment is to be made.
2.9 Liability for Payment in Advance of Receipt of Securities Purchased. In
any and every case where payment for purchase of securities for the
account of the Fund is made by the Custodian in advance of receipt of
the securities purchased, in the absence of specific written
instructions from the Fund to so pay in advance, the Custodian shall be
absolutely liable to the Fund for such securities to the same extent as
if the securities had been received by the Custodian.
2.10 Payments for Repurchases or Redemptions of Shares of the Fund. From such
funds as may be available for the purpose of repurchasing or redeeming
Shares of the Fund, but subject to the limitations of the Certificate of
Incorporation and any applicable votes of the Board of the Fund pursuant
thereto, the Custodian shall, upon receipt of instructions from the
Transfer Agent, make funds available for payment to holders of shares of
the Fund who have delivered to the Transfer Agent a request for
redemption or repurchase of their shares including without limitation
through bank drafts, automated clearing-house facilities, or by other
means. In connection with the redemption or repurchase of
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Shares of the Fund, the Custodian is authorized upon receipt of
instructions from the Transfer Agent to wire funds to or through a
commercial bank designated by the redeeming shareholders.
2.11 Appointment of Agents. The Custodian may at any time or times in its
discretion appoint (and may at any time remove) any other bank or trust
company which is itself qualified under the 1940 Act and any applicable
state law or regulation, to act as a custodian, as its agent to carry
out such of the provisions of this Section 2 as the Custodian may from
time to time direct; provided, however, that the appointment of any
agent shall not relieve the Custodian of its responsibilities or
liabilities hereunder.
2.12 Deposit of Fund Assets in Securities System. The Custodian may deposit
and/or maintain securities owned by the Fund in a clearing agency
registered with the Securities and Exchange Commission ("SEC") under
Section 17A of the Exchange Act, which acts as a securities depository,
or in the book-entry system authorized by the U.S. Department of the
Treasury and certain federal agencies, collectively referred to herein
as "Securities System", in accordance with applicable Federal Reserve
Board and SEC rules and regulations, if any, and subject to the
following provisions:
(1) The Custodian may keep securities of the Fund in a Securities
System provided that such securities are represented in an
account ("Account") of the Custodian in the Securities System
which shall not include any assets of the Custodian other than
assets held as a fiduciary, custodian or otherwise for customers;
(2) The records of the Custodian with respect to securities of the
Fund which are maintained in a Securities System shall identify
by book-entry those securities belonging to the Fund;
(3) The Custodian shall pay for securities purchased for the account
of the Fund upon (i) receipt of advice from the Securities System
that such securities have been transferred to the Account, and
(ii) the making of an entry on the records of the Custodian to
reflect such payment and transfer for the account of the Fund.
The Custodian shall transfer securities sold for the account of
the Fund upon (i) receipt of advice from the Securities System
that payment for such securities has been transferred to the
Account, and (ii) the making of an entry on the records of the
Custodian to reflect such transfer and payment for the account of
the Fund. Copies of all advices from the Securities System of
transfers of securities for the account of the Fund shall
identify the Fund, be maintained for the Fund by the Custodian
and be provided to the Fund at its request. Upon request, the
Custodian shall furnish the Fund confirmation of each transfer to
or from the account of the Fund in the form of a written advice
or notice and shall furnish to the Fund copies of daily
transaction sheets reflecting each day's transactions in the
Securities System for the account of the Fund.
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(4) The Custodian shall provide the Fund with any report obtained by
the Custodian on the Securities System's accounting system,
internal accounting control and procedures for safeguarding
securities deposited in the Securities System;
(5) The Custodian shall have received the initial certificate,
required by Section 9 hereof;
(6) Anything to the contrary in this Contract notwithstanding, the
Custodian shall be liable to the Fund for any loss or damage to
the Fund resulting from use of the Securities System by reason of
any negligence, misfeasance or misconduct of the Custodian or any
of its agents or of any of its or their employees or from failure
of the Custodian or any such agent to enforce effectively such
rights as it may have against the Securities System; at the
election of the Fund, it shall be entitled to be subrogated to
the rights of the Custodian with respect to any claim against the
Securities System or any other person which the Custodian may
have as a consequence of any such loss or damage if and to the
extent that the Fund has not been made whole for any such loss or
damage.
(7) The authorization contained in this Section 2.12 shall not
relieve the Custodian from using reasonable care and diligence in
making use of any Securities System.
2.13 Segregated Account. The Custodian shall upon receipt of Proper
Instructions establish and maintain a segregated account or accounts for
and on behalf of the Fund, into which account or accounts may be
transferred cash and/or securities, including securities maintained in
an account by the Custodian pursuant to Section 2.12 hereof, (I) in
accordance with the provisions of any agreement among the Fund, the
Custodian and a broker-dealer registered under the Exchange Act and a
member of the NASD (or any futures commission merchant registered under
the Commodity Exchange Act), relating to compliance with the rules of
The Options Clearing Corporation and of any registered national
securities exchange (or the Commodity Futures Trading Commission or any
registered contract market), or of any similar organization or
organizations, regarding escrow or other arrangements in connection with
transactions for the Fund, (ii) for purpose of segregating cash or
government securities in connection with options purchased, sold or
written for the Fund or commodity futures contracts or options thereon
purchased or sold for the Fund, (iii) for the purpose of compliance by
the Fund with the procedures required by any release or releases of the
SEC relating to the maintenance of segregated accounts by registered
investment companies and (iv) for other proper corporate purposes, but
only, in the case of clause (iv), upon receipt of, in addition to Proper
Instructions, a certified copy of a resolution of the Board signed by an
officer of the Fund and certified by the Secretary or an Assistant
Secretary, setting forth the purpose or purposes of such segregated
account and declaring such purposes to be proper corporate purposes.
2.14 Joint Repurchase Agreements. Upon the receipt of Proper Instructions,
the Custodian shall deposit and/or maintain any assets of the Fund and
any affiliated funds which are
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subject to joint repurchase transactions in an account established
solely for such transactions for the Fund and its affiliated funds.
For purposes of this Section 2.14, "affiliated funds" shall include
all investment companies and their portfolios for which subsidiaries
or affiliates of Federated Investors serve as investment advisers,
distributors or administrators in accordance with applicable exemptive
orders from the SEC. The requirements of segregation set forth in
Section 2.1 shall be deemed to be waived with respect to such assets.
2.15 Ownership Certificates for Tax Purposes. The Custodian shall execute
ownership and other certificates and affidavits for all federal and
state tax purposes in connection with receipt of income or other
payments with respect to securities of the Fund held by it and in
connection with transfers of securities.
2.16 Proxies. The Custodian shall, with respect to the securities held
hereunder, cause to be promptly executed by the registered holder of
such securities, if the securities are registered otherwise than in the
name of the Fund or a nominee of the Fund, all proxies, without
indication of the manner in which such proxies are to be voted, and
shall promptly deliver to the Fund such proxies, all proxy soliciting
materials and all notices relating to such securities.
2.17 Communications Relating to Fund Portfolio Securities. The Custodian
shall transmit promptly to the Fund and the investment adviser of the
Fund all written information (including, without limitation, pendency of
calls and maturities of securities and expirations of rights in
connection therewith and notices of exercise of call and put options
written by the Fund and the maturity of futures contracts purchased or
sold by the Fund) received by the Custodian from issuers of the
securities being held for the Fund. With respect to tender or exchange
offers, the Custodian shall transmit promptly to the Fund and the
investment adviser of the Fund all written information received by the
Custodian from issuers of the securities whose tender or exchange is
sought and from the party (or his agents) making the tender or exchange
offer. If the Fund or the investment adviser of the Fund desires to take
action with respect to any tender offer, exchange offer or any other
similar transaction, the Fund shall notify the Custodian in writing at
least three business days prior to the date on which the Custodian is to
take such action. However, the Custodian shall nevertheless exercise its
best efforts to take such action in the event that notification is
received three business days or less prior to the date on which action
is required. For securities which are not held in nominee name, the
Custodian will act as a secondary source of information and will not be
responsible for providing corporate action notification to the Fund.
2.18 Proper Instructions. Proper Instructions as used throughout this Section
2 means a writing signed or initialed by one or more person or persons
as the Board shall have from time to time authorized. Each such writing
shall set forth the specific transaction or type of transaction
involved. Oral instructions will be considered Proper Instructions if
the Custodian reasonably believes them to have been given by a person
previously authorized in Proper Instructions to give such instructions
with respect to the
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transaction involved. The Fund shall cause all oral instructions to be
confirmed in writing. Upon receipt of a certificate of the Secretary
or an Assistant Secretary as to the authorization by the Board of the
Fund accompanied by a detailed description of procedures approved by
the Board, Proper Instructions may include communications effected
directly between electromechanical or electronic devices provided that
the Board and the Custodian are satisfied that such procedures afford
adequate safeguards for the Fund's assets.
2.19 Actions Permitted Without Express Authorization. The Custodian may in
its discretion, without express authority from the Fund:
(1) make payments to itself or others for minor expenses of handling
securities or other similar items relating to its duties under
this Contract, provided that all such payments shall be accounted
for to the Fund in such form that it may be allocated to the
Fund;
(2) surrender securities in temporary form for securities in
definitive form;
(3) endorse for collection, in the name of the Fund, checks, drafts
and other negotiable instruments; and
(4) in general, attend to all non-discretionary details in connection
with the sale, exchange, substitution, purchase, transfer and
other dealings with the securities and property of the Fund
except as otherwise directed by the Fund.
2.20 Evidence of Authority. The Custodian shall be protected in acting upon
any instructions, notice, request, consent, certificate or other
instrument or paper reasonably believed by it to be genuine and to have
been properly executed on behalf of the Fund. The Custodian may receive
and accept a certified copy of a vote of the Board of the Fund as
conclusive evidence (a) of the authority of any person to act in
accordance with such vote or (b) of any determination of or any action
by the Board pursuant to the Certificate of Incorporation as described
in such vote, and such vote may be considered as in full force and
effect until receipt by the Custodian of written notice to the contrary.
2.21 Notice to Fund By Custodian Regarding Cash Movement. The Custodian will
provide timely notification to the Fund of any receipt of cash, income
or payments to the Fund and the release of cash or payment by the Fund.
3. Duties of Custodian With Respect to the Books of Account and Calculation
of Net Asset Value and Net Income.
The Custodian shall cooperate with and supply necessary information to
the entity or entities appointed by the Board of the Fund to keep the books of
account of the Fund and/or compute the net asset value per share of the
outstanding Shares of the Fund or, if directed in
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writing to do so by the Fund, shall itself keep such books of account and/or
compute such net asset value per share. If so directed, the Custodian shall also
calculate daily the net income of the Fund as described in the Fund's currently
effective private offering memorandum ("Memorandum") and shall advise the Fund
and the Transfer Agent daily of the total amounts of such net income and, if
instructed in writing by an officer of the Fund to do so, shall advise the
Transfer Agent periodically of the division of such net income among its various
components. The calculations of the net asset value per share and the daily
income of the Fund shall be made at the time or times described from time to
time in the Fund's currently effective Prospectus.
4. Records.
The Custodian shall create and maintain all records relating to its
activities and obligations under this Contract in such manner as will meet the
obligations of the Fund under the 1940 Act, with particular attention to Section
31 thereof and Rules 3la-1 and 3la-2 thereunder, and specifically including
identified cost records used for tax purposes. All such records shall be the
property of the Fund and shall at all times during the regular business hours of
the Custodian be open for inspection by duly authorized officers, employees or
agents of the Fund and upon notice to the Fund, employees and agents of the SEC.
In the event of termination of this Contract, the Custodian will deliver all
such records to the Fund to a successor Custodian, or to such other person as
the Fund may direct. The Custodian shall supply daily to the Fund a tabulation
of securities owned by the Fund and held by the Custodian and shall, when
requested to do so by the Fund and for such compensation as shall be agreed upon
between the Fund and the Custodian, include certificate numbers in such
tabulations. In addition, the Custodian shall electronically transmit daily to
the Fund information pertaining to security trading and other investment
activity and all other cash activity of the Fund.
5. Opinion of Fund's Independent Public Accountants.
The Custodian shall take all reasonable action to obtain from year to year
favorable opinions from independent public accountants with respect to its
activities hereunder in connection with the preparation of the Fund's
registration statement, periodic reports, or any other reports to the SEC and
with respect to any other requirements of such Commission.
6. Reports to Fund by Independent Public Accountants.
The Custodian shall provide the Fund, at such times as the Fund may
reasonably require, with reports by independent public accountants for the Fund
on the accounting system, internal accounting control and procedures for
safeguarding securities, futures contracts and options on futures contracts,
including securities deposited and/or maintained in a Securities System,
relating to the services provided by the Custodian for the Fund under this
Contract; such reports shall be of sufficient scope and in sufficient detail, as
may reasonably be required by the Fund, to provide reasonable assurance that any
material inadequacies would be disclosed by such examination and, if there are
no such inadequacies, the reports shall so state.
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7. Compensation of Custodian.
The Custodian shall be entitled to reasonable compensation for its services
and expenses as Custodian, as agreed upon from time to time between the Fund and
the Custodian, and as reflected on Schedule A attached hereto.
8. Responsibility of Custodian.
The Custodian shall be held to a standard of reasonable care in carrying
out the provisions of this Contract; provided, however, that the Custodian shall
be held to any higher standard of care which would be imposed upon the Custodian
by any applicable law or regulation if such above stated standard of reasonable
care was not part of this Contract. The Custodian shall be entitled to rely on
and may act upon advice of counsel for the Fund on all matters, and shall be
without liability for any action reasonably taken or omitted pursuant to such
advice, provided that such action is not in violation of applicable federal or
state laws or regulations, and is in good faith and without negligence. Subject
to the limitations set forth in Section 15 hereof, the Custodian shall be kept
indemnified by the Fund but only from the assets of the Fund involved in the
issue at hand and be without liability for any action taken or thing done by it
that is reasonably related to its responsibility to carry out the terms and
provisions of this Contract in accordance with the above standards.
In order that the indemnification provisions contained in this Section 8
shall apply, however, it is understood that if in any case the Fund may be asked
to indemnify or save the Custodian harmless, the Fund shall be fully and
promptly advised of all pertinent facts concerning the situation in question,
and it is further understood that the Custodian 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.
The Fund shall have the option to defend the Custodian against any claim which
may be the subject of this indemnification, and in the event that the Fund so
elects it will so notify the Custodian and thereupon the Fund shall take over
complete defense of the claim, and the Custodian shall in such situation
initiate no further legal or other expenses for which it shall seek
indemnification under this Section. The Custodian shall in no case confess any
claim or make any compromise in any case in which the Fund will be asked to
indemnify the Custodian except with the Fund's prior written consent.
Notwithstanding the foregoing, the responsibility of the Custodian with
respect to redemptions effected by check shall be in accordance with a separate
Agreement entered into between the Custodian and the Fund. If the Fund requires
the Custodian to take any action with respect to securities, which action
involves the payment of money or which action may, in the reasonable opinion of
the Custodian, result in the Custodian or its nominee assigned to the Fund being
liable for the payment of money or incurring liability of some other form, the
Custodian may request the Fund, as a prerequisite to requiring the Custodian to
take such action, to provide indemnity to the Custodian in an amount and form
satisfactory to the Custodian. Subject to the limitations set forth in Section
15 hereof, the Fund agrees to indemnify and hold harmless the Custodian and its
nominee from and against all taxes, charges, expenses, assessments, claims and
liabilities (including reasonable counsel fees) (referred to herein as
authorized charges) incurred
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or assessed against it or its nominee in connection with the performance of this
Contract, except such as may arise from it or its nominee's own failure to act
in accordance with the standard of care set forth herein or any higher standard
of care which would be imposed upon the Custodian by any applicable law or
regulation if such above-stated standard of care were not part of this Contract.
To secure any authorized charges and any advances of cash or securities made by
the Custodian to or for the benefit of the Fund for any purpose which results in
the Fund incurring an overdraft at the end of any business day or for
extraordinary or emergency purposes during any business day, the Fund hereby
grants to the Custodian a security interest in and pledges to the Custodian
securities held for the Fund by the Custodian in an amount not to exceed 10
percent of the Fund's gross assets, the specific securities to be designated in
writing from time to time by the Fund or the Fund's investment adviser. Should
the Fund fail to make such designation, or should it instruct the Custodian to
make advances exceeding the percentage amount set forth above and should the
Custodian do so, the Fund hereby agrees that the Custodian shall have a security
interest in all securities or other property purchased for the Fund with the
advances by the Custodian, which securities or property shall be deemed to be
pledged to the Custodian, and the written instructions of the Fund instructing
their purchase shall be considered the requisite description and designation of
the property so pledged for purposes of the requirements of the Uniform
Commercial Code. Should the Fund fail to repay promptly any authorized charges
or advances of cash or securities, subject to the provision of the second
paragraph of this Section 8 regarding indemnification, the Custodian shall be
entitled to use available cash and to dispose of pledged securities and property
as is necessary to repay any such advances.
9. Effective Period, Termination and Amendment.
This Contract shall become effective as 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 sixty (60)
days after the date of such delivery or mailing; provided, however that the
Custodian shall not act under Section 2.12 hereof in the absence of receipt of
an initial certificate of the Secretary or an Assistant Secretary that the Board
of the Fund has approved the initial use of a particular Securities System as
required in each case by Rule 17f-4 under the 1940 Act; provided further,
however, that the Fund shall not amend or terminate this Contract in
contravention of any applicable federal or state regulations, or any provision
of the Certificate of Incorporation, and further provided, that the Fund may at
any time by action of its Board (i) substitute another bank or trust company for
the Custodian by giving notice as described above to the Custodian, or (ii)
immediately terminate this Contract in the event of the appointment of a
conservator or receiver for the Custodian by the Comptroller of the Currency or
upon the happening of a like event at the direction of an appropriate regulatory
agency or court of competent jurisdiction.
Upon termination of the Contract, the Fund shall pay to the Custodian such
compensation as may be due as of the date of such termination and shall likewise
reimburse the Custodian for its reasonable costs, expenses and disbursements
incurred in connection with its performance of this agreement through the date
of termination.
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10. Successor Custodian.
If a successor custodian shall be appointed by the Board of the Fund, the
Custodian shall, upon termination, deliver to such successor custodian at the
office of the Custodian, duly endorsed and in the form for transfer, all
securities then held by it hereunder for the Fund and shall transfer to separate
accounts of the successor custodian all of the Fund's securities held in a
Securities System. If no such successor custodian shall be appointed, the
Custodian shall, in like manner, upon receipt of a certified copy of a vote of
the Board of the Fund, deliver at the office of the Custodian and transfer such
securities, funds and other properties in accordance with such vote. In the
event that no written order designating a successor custodian or certified copy
of a vote of the Board shall have been delivered to the Custodian on or before
the date when such termination shall become effective, then the Custodian shall
have the right to deliver to a bank or trust company, which is a 'bank' as
defined in the 1940 Act, of its own selection, having an aggregate capital,
surplus, and undivided profits, as shown by its last published report, of not
less than $100,000,000, all securities, funds and other properties held by the
Custodian and all instruments held by the Custodian relative thereto and all
other property held by it under this Contract for the Fund and to transfer to
separate accounts of such successor custodian all of the Fund's securities held
in any Securities System. Thereafter, such bank or trust company shall be the
successor of the Custodian under this Contract.
In the event that securities, funds and other properties remain in the
possession of the Custodian after the date of termination hereof owing to
failure of the Fund to procure the certified copy of the vote referred to or of
the Board to appoint a successor custodian, the Custodian shall be entitled to
fair compensation for its services during such period as the Custodian retains
possession of such securities, funds and other properties and the provisions of
this Contract relating to the duties and obligations of the Custodian shall
remain in full force and effect.
11. Interpretive and Additional Provisions.
In connection with the operation of this Contract, the Custodian and the
Fund may from time to time agree on such provisions interpretive of or in
addition to the provisions of this Contract as may in their joint opinion be
consistent with the general tenor of this Contract. Any such interpretive or
additional provisions shall be in a writing signed by both parties and shall be
annexed hereto, provided that no such interpretive or additional provisions
shall contravene any applicable federal or state regulations or any provision of
the Certificate of Incorporation. No interpretive or additional provisions made
as provided in the preceding sentence shall be deemed to be an amendment of this
Contract.
12. Utah Law to Apply.
This Contract shall be construed and the provisions thereof interpreted
under and in accordance with laws of Utah.
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13. Notices.
Except as otherwise specifically provided herein, Notices and other
writings delivered or mailed postage prepaid to the Fund at One South Main,
Suite 1380, Salt Lake City, Utah 84111, ATTN: Kay Hall, or to the Custodian at
One South Main, Suite 1380, Salt Lake City, Utah 84111, or to such other address
as the Fund or the Custodian may hereafter specify, shall be deemed to have been
properly delivered or given hereunder to the respective address.
14. Counterparts.
This Contract may be executed simultaneously in two or more counterparts,
each which shall be deemed an original.
15. Limitations of Liability.
The Custodian is expressly put on notice of the limitation of liability as
set forth in paragraph 9 of the Certificate of Incorporation and agrees that the
obligations and liabilities assumed by the Fund pursuant to this Contract,
including, without limitation, any obligation or liability to indemnify the
Custodian pursuant to Section 8 hereof, shall be limited in any case to the Fund
and its assets and that the Custodian shall not seek satisfaction of any such
obligation from the shareholders of the Fund, from its shareholders, or from the
Directors, Officers, employees or agents of the Fund, or any of them.
IN WITNESS WHEREOF, each of the parties has caused this instrument to be
executed in its name and behalf by its duly authorized representative and its
seal to be hereunder affixed as of the 3rd day of August, 2000.
ATTEST: NSB ASSET FUND, INC.
/s/ John Payne /s/ Nolan X. Bellon
--------------------------- ----------------------------
Assistant Secretary President
ATTEST: ZIONS FIRST NATIONAL BANK
/s/ Jennifer R. Jolley /s/ A. Scott Anderson
---------------------- ----------------------------
Assistant Vice President President
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Custodian Contract
Schedule A
For its services under the Custodian Contract, the Custodian will receive a
fee as follows:
For Custody Services
0.02 % of the average daily net assets of the Fund. There is no fee for custody
services related to limited liability interests held by the Fund.
For Recordkeeping Services
No additional fees will be charged for recordkeeping services.
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