CUSTODY AGREEMENT
AGREEMENT dated as of July 26, 2006, between SURGEONS DIVERSIFIED
INVESTMENT FUND, a business trust organized under the laws of the State of Ohio,
having its principal office and place of business at 000 Xxxxx Xx. Xxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 60611(the "Fund"), and THE NORTHERN TRUST COMPANY (the
"Custodian"), an Illinois company with its principal place of business at 00
Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000.
W I T N E S S E T H:
That for and in consideration of the mutual promises hereinafter set forth,
the Fund and the Custodian agree as follows:
1. Definitions.
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Whenever used in this Agreement or in any Schedules to this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
(a) "Articles of Incorporation " shall mean the Declaration of Trust of the
Fund, including all amendments thereto.
(b) "Authorized Person" shall be deemed to include the Chairman of the
Board of Trustees, the President, and any Vice President, the Secretary,
the Treasurer or any other person, whether or not any such person is an
officer or employee of the Fund, duly authorized by the Board of Trustees
to give Instructions on behalf of the Fund and listed in the certification
annexed hereto as Schedule A or such other certification as may be received
by the Custodian from time to time pursuant to Section 18(a).
(c) "Board of Trustees" shall mean the Board of Trustees of the Fund.
(d) "Book-Entry System" shall mean the Federal Reserve/Treasury book-entry
system for United States and federal agency securities, its successor or
successors and its nominee or nominees.
(e) "Delegate of the Fund" shall mean and include any entity to whom the
Board of Trustees of the Fund has delegated responsibility under Rule 17f-5
of the 1940 Act.
(f) "Depository" shall mean The Depository Trust Company, a clearing agency
registered with the Securities and Exchange Commission under Section
17(a) of the Securities Exchange Act of 1934, as amended, its successor or
successors and its nominee or nominees, the use of which is hereby
specifically authorized. The term "Depository" shall further mean and
include any other person named in an Instruction and approved by the Fund
to act as a depository in the manner required by Rule 17f-4 of the 1940
Act, its successor or successors and its nominee or nominees.
(g) "Instruction" shall mean written (including telecopied, telexed, or
electronically transmitted in a form that can be converted to print) or
oral instructions actually received by the Custodian which the Custodian
reasonably believes were given by an Authorized Person. An Instruction
shall also include any instrument in writing actually received by the
Custodian which the Custodian reasonably believes to be genuine and to be
signed by any two officers of the Fund, whether or not such officers are
Authorized Persons. Except as otherwise provided in this Agreement,
"Instructions" may include instructions given on a standing basis.
(h) "1940 Act" shall mean the Investment Company Act of 1940, and the Rules
and Regulations thereunder, all as amended from time to time.
(i) "Portfolio" refers to each of the separate and distinct investment
portfolios of the Fund which the Fund and the Custodian shall have agreed
in writing shall be subject to this Agreement, as identified in Schedule B
hereto.
(j) "Prospectus" shall include each current prospectus and statement of
additional information of the Fund with respect to a Portfolio.
(k) "Rule 17f-5" shall mean Rule 17f-5 under the 1940 Act.
(l) "Rule 17f-7" shall mean Rule 17f-7 under the 1940 Act.
(m) "Shares" refers to the shares of the Fund.
(n) "Security" or "Securities" shall be deemed to include bonds,
debentures, notes, stocks, shares, evidences of indebtedness, and other
securities, commodity interests and investments from time to time owned by
the Fund and held in a Portfolio.
(o) "Sub-Custodian" shall mean and include (i) any branch of the Custodian,
and (ii) any "eligible foreign custodian," as that term is defined in Rule
17f-5 under the 1940 Act, approved by the Fund or a Delegate of the Fund in
the manner required by Rule 17f-5. For the avoidance of doubt, the term
"Sub-Custodian" shall not include any central securities depository or
clearing agency.
(o) "Eligible Securities Depository" shall have the same meaning as set
forth in Rule 17f-7(b)(1).
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(p) "Transfer Agent" shall mean the person which performs as the transfer
agent, dividend disbursing agent and shareholder servicing agent for the
Fund.
2. Appointment of Custodian.
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(a) The Fund hereby constitutes and appoints the Custodian as custodian of
all the Securities and moneys owned by or in the possession of a Portfolio
during the period of this Agreement.
(b) The Custodian hereby accepts appointment as such custodian and agrees
to perform the duties thereof as hereinafter set forth.
3. Appointment and Removal of Sub-Custodians.
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(a) The Custodian may appoint one or more Sub-Custodians to act as
sub-custodian or sub-custodians of Securities and moneys at any time held
in any Portfolio, upon the terms and conditions specified in this
Agreement. The Custodian shall oversee the maintenance by any Sub-Custodian
of any Securities or moneys of any Portfolio.
(b) The Agreement between the Custodian and each Sub-Custodian described in
clause (ii) of Section 1(o) and acting hereunder shall contain any
provisions necessary to comply with Rule 17f-5 under the 1940 Act.
(c) Prior to the Custodian's use of any Sub-Custodian described in clause
(ii) of Paragraph 1(o), the Fund or a Delegate of the Fund must approve
such Sub-Custodian in the manner required by Rule 17f-5 and provide the
Custodian with satisfactory evidence of such approval.
(d) The Custodian shall promptly take such steps as may be required to
remove any Sub-Custodian that has ceased to be an "eligible foreign
custodian" or has otherwise ceased to meet the requirements under Rule
17f-5. If the Custodian intends to remove any Sub-Custodian previously
approved by the Fund or a Delegate of the Fund pursuant to paragraph 3(c),
and the Custodian proposes to replace such Sub-Custodian with a
Sub-Custodian that has not yet been approved by the Fund or a Delegate of
the Fund, it will so notify the Fund or a Delegate of the Fund and provide
it with information reasonably necessary to determine such proposed
Sub-Custodian's eligibility under Rule 17f-5, including a copy of the
proposed agreement with such Sub-Custodian. The Fund shall at the meeting
of the Board of Trustees next following receipt of such notice and
information, or a Delegate of the Fund shall promptly after receipt of such
notice and information, determine whether to approve the proposed
Sub-Custodian and will promptly thereafter give written notice of the
approval or disapproval of the proposed action.
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(e) The Custodian hereby represents to the Fund that in its opinion, after
due inquiry, the established procedures to be followed by each
Sub-Custodian in connection with the safekeeping of property of a Portfolio
pursuant to this Agreement afford reasonable care for the safekeeping of
such property based on the standards applicable in the relevant market.
3A. Delegation of Foreign Custody Management.
(a) The Fund hereby delegates to Custodian the responsibilities set forth
in subparagraph (b) below of this Section 3A, in accordance with Rule 17f-5 with
respect to foreign custody arrangements for the Fund's existing and future
investment portfolios, except that the Custodian shall not have such
responsibility with respect to central depositories and clearing agencies or
with respect to custody arrangements in the countries listed on Schedule I,
attached hereto, as that Schedule may be amended from time to time by notice to
the Fund.
(b) With respect to each arrangement with any Sub-custodian regarding the assets
of any investment portfolio of the Fund for which Custodian has responsibility
under this Section 3A (a "Foreign Custodian"), Custodian shall:
(i) determine that the Fund's assets will be subject to reasonable
care, based on the standards applicable to custodians in the relevant
market, if maintained with the Foreign Custodian, after considering
all factors relevant to the safekeeping of such assets, including the
factors enunciated in Rule 17f-5(c)(1)(i) through 17f-5(c)(1)(iii);
(ii) determine that the written contract with such Foreign Custodian
governing the foreign custody arrangements with the Foreign Custodians
complies with the requirements of Rule 17f-5 and will provide
reasonable care for the Fund's assets based upon the standards
enunciated in the preceding sub-paragraph;
(iii) establish a system to monitor the appropriateness of maintaining
the Fund's assets with such Foreign Custodian in accordance with
Paragraph 3A(b)(i) of this Agreement and the performance of any
contract governing the Fund's foreign custody arrangements;
(iv) provide to the Fund's Board of Trustees, at least quarterly,
written reports notifying the Board of the placement of the Fund's
assets with a particular Foreign Custodian and quarterly, or earlier
if deemed necessary and advisable by the Custodian, periodic reports
of any material changes to the Fund's foreign custodian arrangements;
and
(v) withdraw the Fund's assets from any Foreign Custodian as soon as
reasonably practicable, if the foreign custody arrangement no longer
meets the requirement of Rule 17f-5.
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4. Use of Sub-Custodians and Securities Depositories.
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With respect to property of a Portfolio which is maintained by the
Custodian in the custody of a Sub-Custodian pursuant to Section 3:
(a) The Custodian will identify on its books as belonging to the particular
Portfolio any property held by such Sub-Custodian.
(b) In the event that a Sub-Custodian permits any of the Securities placed
in its care to be held in a foreign securities depository, such
Sub-Custodian will be required by its agreement with the Custodian to
identify on its books such Securities as being held for the account of the
Custodian as a custodian for its customers.
(c) Any Securities held by a Sub-Custodian will be subject only to the
instructions of the Custodian or its agents; and any Securities held in a
foreign securities depository for the account of a Sub-Custodian will be
subject only to the instructions of such Sub-Custodian.
(d) The Custodian will only deposit property of a Portfolio in an account
with a Sub-Custodian which includes exclusively the assets held by the
Custodian for its customers, and will cause such account to be designated
by such Sub-Custodian as a special custody account for the exclusive
benefit of customers of the Custodian.
(e) Before any Securities are placed in a foreign securities depository,
the Custodian shall provide the fund's Board of Trustees or the Fund's
investment adviser with an analysis of the custody risks associated with
maintaining assets with the foreign securities depository.
(f) The Custodian or its agent shall continue to monitor the custody risks
associated with maintaining the Securities with a foreign securities
depository and shall promptly notify the Fund's Board of Trustees or the
Fund's investment adviser in writing of any material changes in said risks.
5. Compensation.
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(a) The Fund will compensate the Custodian for its services rendered under
this Agreement in accordance with the fees set forth in the Fee Schedule
annexed hereto as Schedule C and incorporated herein. Such Fee Schedule
does not include out-of-pocket disbursements of the Custodian for which the
Custodian shall be entitled to xxxx separately; provided that out-of-pocket
disbursements may include only the items specified in Schedule C.
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(b) If the Fund requests that the Custodian act as Custodian for any
Portfolio hereafter established, at the time the Custodian commences
serving as such for said Portfolio, the compensation for such services
shall be reflected in a fee schedule for that Portfolio, dated and signed
by an officer of each party hereto, which shall be attached to or otherwise
reflected in Schedule C of this Agreement.
(c) Any compensation agreed to hereunder may be adjusted from time to time
by attaching to Schedule C, or replacing Schedule C with, a revised Fee
Schedule, dated and signed by an officer of each party hereto.
(d) The Custodian will xxxx the Fund for its services to each Portfolio
hereunder as soon as practicable after the end of each calendar quarter,
and said xxxxxxxx will be detailed in accordance with the Fee Schedule for
the Fund. The Fund will promptly pay to the Custodian the amount of such
billing. The Custodian shall have a claim of payment against the property
in each Portfolio for any compensation or expense amount owing to the
Custodian in connection with such Portfolio from time to time under this
Agreement.
(e) The Custodian (not the Fund) will be responsible for the payment of the
compensation of each Sub-Custodian.
6. Custody of Cash and Securities
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(a) RECEIPT AND HOLDING OF ASSETS. The Fund will deliver or cause to be
delivered to the Custodian and any Sub-Custodians all Securities and moneys
of any Portfolio at any time during the period of this Agreement and shall
specify the Portfolio to which the Securities and moneys are to be
specifically allocated. The Custodian will not be responsible for such
Securities and moneys until actually received by it or by a Sub-Custodian.
The Fund may, from time to time in its sole discretion, provide the
Custodian with Instructions as to the manner in which and in what amounts
Securities, and moneys of a Portfolio are to be held on behalf of such
Portfolio in the Book-Entry System or a Depository. Securities and moneys
of a Portfolio held in the Book-Entry System or a Depository will be held
in accounts which include only assets of Custodian that are held for its
customers.
(b) ACCOUNTS AND DISBURSEMENTS. The Custodian shall establish and maintain
a separate account for each Portfolio and shall credit to the separate
account all moneys received by it or a Sub-Custodian for the account of
such Portfolio and shall disburse, or cause a Sub-Custodian to disburse,
the same only:
1. In payment for Securities purchased for the Portfolio, as
provided in Section 7 hereof;
2. In payment of dividends or distributions with respect to the
Shares of such Portfolio, as provided in Section 11 hereof;
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3. In payment of original issue or other taxes with respect to the
Shares of such Portfolio, as provided in Section 12(c) hereof;
4. In payment for Shares which have been redeemed by such Portfolio,
as provided in Section 12 hereof;
5. In payment of fees and in reimbursement of the expenses and
liabilities of the Custodian attributable to the Fund, as
provided in Sections 5 and 16(h) hereof;
6. Pursuant to Instructions setting forth the name of the Portfolio
and the name and address of the person to whom the payment is to
be made, the amount to be paid and the purpose for which payment
is to be made.
(c) FAIL FLOAT. In the event that any payment made for a Portfolio under
this Section 6 exceeds the funds available in that Portfolio's account, the
Custodian or relevant Sub-Custodian, as the case may be, may, in its
discretion, advance the Fund on behalf of that Portfolio an amount equal to
such excess and such advance shall be deemed an overdraft from the
Custodian or such Sub-Custodian to that Portfolio payable on demand,
bearing interest at the rate of interest customarily charged by the
Custodian or such Sub-Custodian on similar overdrafts.
(d) CONFIRMATION AND STATEMENTS. At least monthly, the Custodian shall
furnish the Fund with a detailed statement of the Securities and moneys
held by it and all Sub-Custodians for each Portfolio. Where securities
purchased for a Portfolio are in a fungible bulk of securities registered
in the name of the Custodian (or its nominee) or shown on the Custodian's
account on the books of a Depository, the Book-Entry System or a
Sub-Custodian, the Custodian shall maintain such records as are necessary
to enable it to identify the quantity of those securities held for such
Portfolio. In the absence of the filing in writing with the Custodian by
the Fund of exceptions or objections to any such statement within 60 days
after the date that a material defect is reasonably discoverable, the Fund
shall be deemed to have approved such statement; and in such case or upon
written approval of the Fund of any such statement the Custodian shall, to
the extent permitted by law and provided the Custodian has met the standard
of care in Section 16 hereof, be released, relieved and discharged with
respect to all matters and things set forth in such statement as though
such statement had been settled by the decree of a court of competent
jurisdiction in an action in which the Fund and all persons having any
equity interest in the Fund were parties.
(e) REGISTRATION OF SECURITIES AND PHYSICAL SEPARATION. All Securities held
for a Portfolio which are issued or issuable only in bearer form, except
such Securities as are held in the Book-Entry System, shall be held by the
Custodian or a Sub-Custodian in that form; all other Securities held for a
Portfolio may be registered in the name of that Portfolio, in the name of
any duly appointed registered nominee of the Custodian or a Sub-Custodian
as the Custodian or such
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Sub-Custodian may from time to time determine, or in the name of the
Book-Entry System or a Depository or their successor or successors, or
their nominee or nominees, in accordance with applicable Federal Reserve
Board and SEC rules and regulations. The Fund reserves the right to
instruct the Custodian as to the method of registration and safekeeping of
the Securities. The Fund agrees to furnish to the Custodian appropriate
instruments to enable the Custodian or any Sub-Custodian to hold or deliver
in proper form for transfer, or to register in the name of its registered
nominee or in the name of the Book-Entry System or a Depository, any
Securities which the Custodian of a Sub-Custodian may hold for the account
of a Portfolio and which may from time to time be registered in the name of
a Portfolio. The Custodian shall hold all such Securities specifically
allocated to a Portfolio which are not held in the Book-Entry System or a
Depository in a separate account for such Portfolio in the name of such
Portfolio physically segregated at all times from those of any other person
or persons.
(f) SEGREGATED ACCOUNTS. Upon receipt of an Instruction, the Custodian will
establish segregated accounts on behalf of a Portfolio to hold liquid or
other assets as it shall be directed by such Instruction and shall increase
or decrease the assets in such segregated accounts only as it shall be
directed by subsequent Instruction.
(g) COLLECTION OF INCOME AND OTHER MATTERS AFFECTING SECURITIES. Except as
otherwise provided in an Instruction, the Custodian, by itself or through
the use of the Book-Entry System or a Depository with respect to Securities
therein maintained, shall, or shall instruct the relevant Sub-Custodian to:
1. Collect all income due or payable with respect to Securities in
accordance with this Agreement;
2. Present for payment and collect the amount payable upon all
Securities which may mature or be called, redeemed or retired, or
otherwise become payable;
3. Surrender Securities in temporary form for derivative Securities;
4. Execute any necessary declarations or certificates of ownership
under the federal income tax laws or the laws or regulations of any
other taxing authority now or hereafter in effect; and
5. Hold directly, or through the Book-Entry System or a Depository
with respect to Securities therein deposited, for the account of each
Portfolio all rights and similar Securities issued with respect to any
Securities held by the Custodian or relevant Sub-Custodian for each
Portfolio.
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(h) DELIVERY OF SECURITIES AND EVIDENCE OF AUTHORITY. Upon receipt of an
Instruction, the Custodian, directly or through the use of the Book-Entry
System or a Depository, shall, or shall instruct the relevant Sub-Custodian
to:
1. Execute and deliver or cause to be executed and delivered to such
persons as may be designated in such Instructions, proxies, consents,
authorizations, and any other instruments whereby the authority of the
Fund as owner of any Securities may be exercised;
2. Deliver or cause to be delivered any Securities held for a
Portfolio in exchange for other Securities or cash issued or paid in
connection with the liquidation, reorganization, refinancing, merger,
consolidation or recapitalization of any corporation, or the exercise
of any conversion privilege;
3. Deliver or cause to be delivered any Securities held for a
Portfolio to any protective committee, reorganization committee or
other person in connection with the reorganization, refinancing,
merger, consolidation or recapitalization or sale of assets of any
corporation, and receive and hold under the terms of this Agreement in
the separate account for each such Portfolio certificates of deposit,
interim receipts or other instruments or documents as may be issued to
it to evidence such delivery;
4. Make or cause to be made such transfers or exchanges of the assets
specifically allocated to the separate account of a Portfolio and take
such other steps as shall be stated in Written Instructions to be for
the purpose of effectuating any duly authorized plan of liquidation,
reorganization, merger, consolidation or recapitalization of the Fund;
5. Deliver Securities upon sale of such Securities for the account of
a Portfolio pursuant to Section 7;
6. Deliver Securities upon the receipt of payment in connection with
any repurchase agreement related to such Securities entered into on
behalf of a Portfolio;
7. Deliver Securities of a Portfolio to the issuer thereof or its
agent when such Securities are called, redeemed, retired or otherwise
become payable; provided, however, that in any such case the cash or
other consideration is to be delivered to the Custodian or
Sub-Custodian, as the case may be;
8. Deliver Securities for delivery in connection with any loans of
securities made by a Portfolio but only against receipt of adequate
collateral as agreed upon from time to time by the Custodian and the
Fund
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which may be in the form of cash or obligations issued by the United
States Government, its agencies or instrumentalities;
9. Deliver Securities for delivery as security in connection with any
borrowings by a Portfolio requiring a pledge of Portfolio assets, but
only against receipt of the amounts borrowed;
10. Deliver Securities to the Transfer Agent or its designee or to the
holders of Shares in connection with distributions in kind, in
satisfaction of requests by holders of Shares for repurchase or
redemption;
11. Deliver Securities for any other proper business purpose, but only
upon receipt of, in addition to written Instructions, a copy of a
resolution or other authorization of the Fund certified by the
Secretary of the Fund, specifying the Securities to be delivered,
setting forth the purpose for which such delivery is to be made,
declaring such purpose to be a proper business purpose, and naming the
person or persons to whom delivery of such Securities shall be made.
(i) ENDORSEMENT AND COLLECTION OF CHECKS, ETC. The Custodian is hereby
authorized to endorse and collect all checks, drafts or other orders for
the payment of money properly received by the Custodian for the account of
a Portfolio.
(j) EXECUTION OF REQUIRED DOCUMENTS. The Custodian is hereby authorized to
execute any and all applications or other documents required by a
regulatory agency or similar entity as a condition of making investments in
the foreign market under such entity's jurisdiction.
7. Purchase and Sale of Securities.
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(a) Promptly after the purchase of Securities, the Fund or its designee
shall deliver to the Custodian an Instruction specifying with respect to
each such purchase: (1) the name of the Portfolio to which such Securities
are to be specifically allocated; (2) the name of the issuer and the title
of the Securities; (3) the number of shares or the principal amount
purchased and accrued interest, if any; (4) the date of purchase and
settlement; (5) the purchase price per unit; (6) the total amount payable
upon such purchase; and (7) the name of the person from whom or the broker
through whom the purchase was made, if any. The Custodian or specified
Sub-Custodian shall receive the Securities purchased by or for a Portfolio
and upon receipt thereof (or upon receipt of advice from a Depository or
the Book-Entry System that the Securities have been transferred to the
Custodian's account) shall pay to the broker or other person specified by
the Fund or its designee out of the moneys held for the account of such
Portfolio the total amount payable upon such purchase, provided that the
same conforms to the total amount payable as set forth in such Instruction.
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(b) Promptly after the sale of Securities, the Fund or its designee shall
deliver to the Custodian an Instruction specifying with respect to each
such sale: (1) the name of the Portfolio to which the Securities sold were
specifically allocated; (2) the name of the issuer and the title of the
Securities; (3) the number of shares or principal amount sold, and accrued
interest, if any; (4) the date of sale; (5) the sale price per unit; (6)
the total amount payable to the Portfolio upon such sale; and (7) the name
of the broker through whom or the person to whom the sale was made. The
Custodian or relevant Sub-Custodian shall deliver or cause to be delivered
the Securities to the broker or other person designated by the Fund upon
receipt of the total amount payable to such Portfolio upon such sale,
provided that the same conforms to the total amount payable to such
Portfolio as set forth in such Instruction. Subject to the foregoing, the
Custodian or relevant Sub-Custodian may accept payment in such form as
shall be satisfactory to it, and may deliver Securities and arrange for
payment in accordance with the customs prevailing among dealers in
Securities.
(c) Notwithstanding (a) and (b) above, cash in any of the Portfolios may be
invested by the Custodian for short term purposes pursuant to standing
Instructions from the Fund.
8. Lending of Securities.
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If the Fund and the Custodian enter into a separate written agreement
authorizing the Custodian to lend Securities, the Custodian may lend
Securities pursuant to such agreement. Such agreement must be approved by
the Fund in the manner required by any applicable law, regulation or
administrative pronouncement, and may provide for the payment of additional
reasonable compensation to the Custodian.
9. Investment in Futures, Options on Futures and Options
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The Custodian shall pursuant to Instructions (which may be standing
instructions) (i) with respect to futures or options on futures, transfer
initial margin to a futures commission merchant or safekeeping bank or,
with respect to options, transfer collateral to a broker; (ii) pay or
demand variation margin to or from a designated futures commission merchant
or other broker based on daily marking to market calculations and in
accordance with accepted industry practices; and (iii) subject to the
Custodian's consent, enter into separate procedural, safekeeping or other
agreements with respect to the custody of initial margin deposits or
collateral in transactions involving futures contracts or options, as the
case may be. The Custodian shall have no custodial or investment
responsibility for any assets transferred to a safekeeping bank, futures
commission merchant or broker pursuant to this paragraph. In addition, in
connection with options transactions in a Portfolio, the Custodian is
authorized to pledge assets of the Portfolio as collateral for such
transactions in accordance with industry practice.
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10. Provisional Credits and Debits.
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(a) The Custodian is authorized, but shall not be obligated, to credit the
account of a Portfolio provisionally on payable date with interest,
dividends, distributions, redemptions or other amounts due. Otherwise, such
amounts will be credited to the Portfolio on the date such amounts are
actually received and reconciled to the Portfolio. In cases where the
Custodian has credited a Portfolio with such amounts prior to actual
collection and reconciliation, the Fund acknowledges that the Custodian
shall be entitled to recover any such credit on written demand from the
Fund and further agrees that the Custodian may reverse such credit if and
to the extent that Custodian does not receive such amounts in the ordinary
course of business.
(b) If the Portfolio is maintained as a global custody account it
shall participate in the Custodian's contractual settlement date processing
service ("CSDP") unless the Custodian directs the Fund, or the Fund informs
the Custodian, otherwise. Pursuant to CSDP the Custodian shall be
authorized, but not obligated, to automatically credit or debit the
Portfolio provisionally on contractual settlement date with cash or
securities in connection with any sale, exchange or purchase of securities.
Otherwise, such cash or securities shall be credited to the Portfolio on
the day such cash or securities are actually received by the Custodian and
reconciled to the Portfolio. In cases where the Custodian credits or debits
the Portfolio with cash or securities prior to actual receipt and
reconciliation, the Custodian may reverse such credit or debit as of
contractual settlement date if and to the extent that any securities
delivered by the Custodian are returned by the recipient, or if the related
transaction fails to settle (or fails, due to market change or other
reasons, to settle on terms which provide the Custodian full reimbursement
of any provisional credit the Custodian has granted) within a period of
time judged reasonable by the Custodian under the circumstances. The Fund
agrees that it will not make any claim or pursue any legal action against
the Custodian for loss or other detriment allegedly arising or resulting
from the Custodian's good faith determination to effect, not effect or
reverse any provisional credit or debit to the Portfolio.
The Fund acknowledges and agrees that funds debited from the Portfolio
on contractual settlement date including, without limitation, funds
provided for the purchase of any securities under circumstances where
settlement is delayed or otherwise does not take place in a timely manner
for any reason, shall be held pending actual settlement of the related
purchase transaction in a non-interest bearing deposit at the Custodian's
London Branch; that such funds shall be available for use in the
Custodian's general operations; and that the Custodian's maintenance and
use of such funds in such circumstances are, without limitation, in
consideration of the Custodian's providing CSDP.
(c) The Fund recognizes that any decision to effect a provisional
credit or an advancement of the Custodian's own funds under this agreement
will be an
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accommodation granted entirely at the Custodian's option and in light of
the particular circumstances, which circumstances may involve conditions in
different countries, markets and classes of assets at different times. The
Fund shall make the Custodian whole for any loss which it may incur from
granting such accommodations and acknowledges that the Custodian shall be
entitled to recover any relevant amounts from the Fund on demand. All
amounts thus due to the Custodian shall be paid by the Fund from the
account of the relevant Portfolio unless otherwise paid on a timely basis
and in that connection the Fund acknowledges that the Custodian has a
continuing lien on all assets of such Portfolio to secure such payments and
agrees that the Custodian may apply or set off against such amounts any
amounts credited by or due from the Custodian to the Fund. If funds in the
Portfolio are insufficient to make any such payment the Fund shall promptly
deliver to the Custodian the amount of such deficiency in immediately
available funds when and as specified by the Custodian's written or oral
notification to the Fund.
(d) In connection with the Custodian's global custody service the Fund
will maintain deposits at the Custodian's London Branch. The Fund
acknowledges and agrees that such deposits are payable only in the currency
in which an applicable deposit is denominated; that such deposits are
payable only on the Fund's demand at the Custodian's London Branch; that
such deposits are not payable at any of the Custodian's offices in the
United States; and that the Custodian will not in any manner directly or
indirectly promise or guarantee any such payment in the United States.
The Fund further acknowledges and agrees that such deposits are
subject to cross-border risk, and therefore the Custodian will have no
obligation to make payment of deposits if and to the extent that the
Custodian is prevented from doing so by reason of applicable law or
regulation or any Sovereign Risk event affecting the London Branch or the
currency in which the applicable deposit is denominated. "Sovereign Risk"
for this purpose means nationalization, expropriation, devaluation,
revaluation, confiscation, seizure, cancellation, destruction or similar
action by any governmental authority, de facto or de jure; or enactment,
promulgation, imposition or enforcement by any such governmental authority
of currency restrictions, exchange controls, taxes, levies or other charges
affecting the property rights of persons who are not residents of the
affected jurisdiction; or acts of war, terrorism, insurrection or
revolution; or any other act or event beyond the Custodian's control.
THE FUND ACKNOWLEDGES AND AGREES THAT DEPOSIT ACCOUNTS MAINTAINED AT
FOREIGN BRANCHES OF UNITED STATES BANKS (INCLUDING, IF APPLICABLE, ACCOUNTS
IN WHICH CUSTOMER FUNDS FOR THE PURCHASE OF SECURITIES ARE HELD ON AND
AFTER CONTRACTUAL SETTLEMENT DATE), ARE NOT
13
INSURED BY THE U.S. FEDERAL DEPOSIT INSURANCE CORPORATION; MAY NOT BE
GUARANTEED BY ANY LOCAL OR FOREIGN GOVERNMENTAL AUTHORITY; ARE UNSECURED;
AND IN A LIQUIDATION MAY BE SUBORDINATED IN PRIORITY OF PAYMENT TO DOMESTIC
(U.S.- DOMICILED) DEPOSITS. THEREFORE, BENEFICIAL OWNERS OF SUCH FOREIGN
BRANCH DEPOSITS MAY BE UNSECURED CREDITORS OF THE NORTHERN TRUST COMPANY.
Deposit account balances that are owned by United States residents are
expected to be maintained in an aggregate amount of at least $100,000 or
the equivalent in other currencies.
11. Payment of Dividends or Distributions.
-------------------------------------
(a) In the event that the Board of Directors of the Trustees (or a
committee thereof) authorizes the declaration of dividends or distributions
with respect to a Portfolio, an Authorized Person shall provide the
Custodian with Instructions specifying the record date, the date of payment
of such distribution and the total amount payable to the Transfer Agent or
its designee on such payment date.
(b) Upon the payment date specified in such Instructions, the Custodian
shall pay the total amount payable to the Transfer Agent or its designee
out of the moneys specifically allocated to and held for the account of the
appropriate Portfolio.
12. Sale and Redemption of Shares.
-----------------------------
(a) Whenever the Fund shall sell any Shares, the Fund shall deliver or
cause to be delivered to the Custodian an Instruction specifying the name
of the Portfolio whose Shares were sold and the amount to be received by
the Custodian for the sale of such Shares.
(b) Upon receipt of such amount from the Transfer Agent or its designee,
the Custodian shall promptly credit such money to the separate account of
the Portfolio specified in the Instruction described in paragraph (a)
above.
(c) Upon issuance of any Shares in accordance with the foregoing provisions
of this Section 12, the Custodian shall promptly pay all original issue or
other taxes required to be paid in connection with such issuance upon the
receipt of an Instruction specifying the amount to be paid.
(d) Except as provided hereafter, whenever any Shares are redeemed, the
Fund shall deliver or cause to be delivered to the Custodian an Instruction
specifying the name of the Portfolio whose Shares were redeemed and the
total amount to be paid for the Shares redeemed.
14
(e) Upon receipt of an Instruction described in paragraph (d) above, the
Custodian shall promptly pay to the Transfer Agent (or such other person as
the Transfer Agent directs) the total amount specified in such Instruction.
Such payment shall be made from the separate account of the Portfolio
specified in such Instruction.
13. Indebtedness.
------------
(a) The Fund or its designee will cause to be delivered to the Custodian by
any bank (excluding the Custodian) from which the Fund borrows money, using
Securities as collateral, a notice or undertaking in the form currently
employed by any such bank setting forth the amount which such bank will
loan to the Fund against delivery of a stated amount of collateral. The
Fund shall promptly deliver to the Custodian an Instruction stating with
respect to each such borrowing: (1) the name of the Portfolio for which the
borrowing is to be made; (2) the name of the bank; (3) the amount and terms
of the borrowing, which may be set forth by incorporating by reference an
attached promissory note, duly endorsed by the Fund, or other loan
agreement; (4) the time and date, if known, on which the loan is to be
entered into (the "borrowing date"); (5) the date on which the loan becomes
due and payable; (6) the total amount payable to the Fund for the separate
account of the Portfolio on the borrowing date; (7) the market value of
Securities to be delivered as collateral for such loan, including the name
of the issuer, the title and the number of shares or the principal amount
of any particular Securities; (8) whether the Custodian is to deliver such
collateral through the Book-Entry System or a Depository; and (9) a
statement that such loan is in conformance with the 1940 Act and the
Prospectus.
(b) Upon receipt of the Instruction referred to in paragraph (a) above, the
Custodian shall promptly deliver on the borrowing date the specified
collateral and the executed promissory note, if any, against delivery by
the lending bank of the total amount of the loan payable, provided that the
same conforms to the total amount payable as set forth in the Instruction.
The Custodian may, at the option of the lending bank, keep such collateral
in its possession, but such collateral shall be subject to all rights
therein given the lending bank by virtue of any promissory note or loan
agreement. The Custodian shall promptly deliver as additional collateral in
the manner directed by the Fund from time to time such Securities
specifically allocated to such Portfolio as may be specified in the
Instruction to collateralize further any transaction described in this
Section 13. The Fund shall cause all Securities released from collateral
status to be returned directly to the Custodian, and the Custodian shall
receive from time to time such return of collateral as may be tendered to
it. In the event that the Fund fails to reasonably specify in such
Instruction all of the information required by this Section 13, the
Custodian shall not be under any obligation to deliver any Securities.
Collateral returned to the Custodian shall be held hereunder as it was
prior to being used as collateral.
15
14. Corporate Action.
----------------
Whenever the Custodian or any Sub-Custodian receives information concerning
Securities held for a Portfolio which requires discretionary action by the
beneficial owner of the Securities (other than a proxy), such as
subscription rights, bond issues, stock repurchase plans and rights
offerings, or legal notices or other material intended to be transmitted to
Securities holders ("Corporate Actions"), the Custodian will give the Fund
or its designee notice of such Corporate Actions to the extent that the
Custodian's central corporate actions department has actual knowledge of a
Corporate Action in time to notify the Fund.
When a rights entitlement or a fractional interest resulting from a rights
issue, stock dividend, stock split or similar Corporate Action which bears
an expiration date is received, the Custodian will endeavor to obtain an
Instruction relating to such Corporate Action from an Authorized Person,
but if such Instruction is not received in time for the Custodian to take
timely action, or actual notice of such Corporate Action was received too
late to seek such an Instruction, the Custodian is authorized to sell, or
cause a Sub-Custodian to sell, such rights entitlement or fractional
interest and to credit the applicable account with the proceeds and to take
any other action it deems, in good faith, to be appropriate, in which case,
provided it has met the standard of care in Section 16 hereof, it shall be
held harmless by the particular Portfolio involved for any such action.
The Custodian will promptly deliver proxies to the Fund or its designated
agent pursuant to special arrangements which may have been agreed to in
writing between the parties hereto. Such proxies shall be executed in the
appropriate nominee name relating to Securities registered in the name of
such nominee but without indicating the manner in which such proxies are to
be voted; and where bearer Securities are involved, proxies will be
delivered in accordance with an applicable Instruction, if any.
15. Persons Having Access to the Portfolios.
---------------------------------------
(a) Neither the Fund nor any officer, director, employee or agent of the
Fund, the Fund's investment adviser, or any sub-investment adviser, shall
have physical access to the assets of any Portfolio held by the Custodian
or any Sub-Custodian or be authorized or permitted to withdraw any
investments of a Portfolio, nor shall the Custodian or any Sub-Custodian
deliver any assets of a Portfolio to any such person. No officer, director,
employee or agent of the Custodian who holds any similar position with the
Fund's investment adviser, with any sub-investment adviser of the Fund or
with the Fund shall have access to the assets of any Portfolio.
(b) Nothing in this Section 15 shall prohibit any Authorized Person from
giving Instructions to the Custodian so long as such Instructions do not
result in
16
delivery of or access to assets of a Portfolio prohibited by paragraph (a)
of this Section 15.
(c) The Custodian represents that it maintains a system that is reasonably
designed to prevent unauthorized persons from having access to the assets
that it holds (by any means) for its customers.
16. Concerning the Custodian.
------------------------
(a) Scope of Services. The Custodian shall be obligated to perform only
such services as are set forth in this Agreement or expressly contained in
an Instruction given to the Custodian which is not contrary to the
provisions of this Agreement.
(b) Standard of Care.
-----------------
1. The Custodian will use reasonable care, prudence and diligence with
respect to its obligations under this Agreement and the safekeeping of
property of the Portfolios. The Custodian shall be liable to, and
shall indemnify and hold harmless the Fund from and against any loss
(including reasonable attorneys' fees) which shall occur as the result
of the Custodian's or Sub-Custodian's negligence or failure of the
Custodian or a Sub-Custodian to exercise reasonable care, prudence and
diligence with respect to their respective obligations under this
Agreement and the safekeeping of such property. The determination of
whether the Custodian or Sub-Custodian has acted negligently or has
exercised reasonable care, prudence and diligence in connection with
their obligations under this Agreement shall be made in light of
prevailing standards applicable to professional custodians in the
jurisdiction in which such custodial services are performed. In the
event of any loss to the Fund by reason of the failure of the
Custodian or a Sub-Custodian to act in good faith or to exercise
reasonable care, prudence and diligence, the Custodian shall be liable
to the Fund, its officers, directors or agents only to the extent of
the Fund's direct damages and expenses, which damages, for purposes of
property only, shall be determined based on the market value of the
property which is the subject of the loss at the date of discovery of
such loss and without reference to any special condition or
circumstances.
2. The Custodian will not be responsible for any act, omission, or
default of, or for the solvency of, any central securities depository
or clearing agency.
3. The Custodian will not be responsible for any act, omission, or
default of, or for the solvency of, any broker or agent (not referred
to in paragraph (b)(2) above) which it or a Sub-Custodian appoints and
uses unless such appointment and use is made or done negligently or in
17
bad faith. In the event such an appointment and use is made or done
negligently or in bad faith, the Custodian shall be liable to the Fund
only for direct damages and expenses (determined in the manner
described in paragraph (b)(1) above) resulting from such appointment
and use and, in the case of any loss due to an act, omission or
default of such agent or broker, only to the extent that such loss
occurs as a result of the failure of the agent or broker to exercise
reasonable care ("reasonable care" for this purpose to be determined
in light of the prevailing standards applicable to agents or brokers,
as appropriate, in the jurisdiction where the services are performed).
4. The Custodian shall be entitled to rely upon any Instruction it
receives pursuant to the applicable Sections of this Agreement that it
reasonably believes to be genuine and to be from an Authorized Person.
In the event that the Custodian receives oral Instructions, the Fund
or its designee shall cause to be delivered to the Custodian, by the
close of business on the same day that such oral Instructions were
given to the Custodian, written Instructions confirming such oral
Instructions, whether by hand delivery, telex, facsimile or otherwise.
The Fund agrees that the fact that no such confirming written
Instructions are received by the Custodian shall in no way affect the
validity of the transactions or enforceability of the transactions
hereby authorized by the Fund. The Fund agrees that the Custodian
shall incur no liability to the Fund in connection with (i) acting
upon oral Instructions given to the Custodian hereunder, provided such
instructions reasonably appear to have been received from an
Authorized Person or (ii) deciding not to act solely upon oral
Instructions, provided that the Custodian first contacts the giver of
such oral Instructions and requests written confirmation immediately
following any such decision not to act.
5. The Custodian shall supply the Fund or its designee with such daily
information regarding the cash and Securities positions and activity
of each Portfolio as the Custodian and the Fund or its designee shall
from time to time agree. It is understood that such information will
not be audited by the Custodian and the Custodian represents that such
information will be the best information then available to the
Custodian. The Custodian shall have no responsibility whatsoever for
the pricing of Securities, accruing for income, valuing the effect of
Corporate Actions, or for the failure of the Fund or its designee to
reconcile differences between the information supplied by the
Custodian and information obtained by the Fund or its designee from
other sources, including but not limited to pricing vendors and the
Fund's investment adviser. Subject to the foregoing, to the extent
that any miscalculation by the Fund or its designee of a Portfolio's
net asset value is attributable to the willful misfeasance, bad faith
or negligence of the Custodian (including any Sub-Custodian) in
supplying or omitting to supply the Fund or its designee
18
with information as aforesaid, the Custodian shall be liable to the
Fund for any resulting loss (subject to such de minimis rule of change
in value as the Board of Trustees may from time to time adopt).
(c) LIMIT OF DUTIES. Without limiting the generality of the foregoing, the
Custodian shall be under no duty or obligation to inquire into, and shall
not be liable for:
1. The validity of the issue of any Securities purchased by any
Portfolio, the legality of the purchase thereof, or the propriety of
the amount specified by the Fund or its designee for payment therefor;
2. The legality of the sale of any Securities by any Portfolio or the
propriety of the amount of consideration for which the same are sold;
3. The legality of the issue or sale of any Shares, or the sufficiency
of the amount to be received therefor;
4. The legality of the redemption of any Shares, or the propriety of
the amount to be paid therefor;
5. The legality of the declaration or payment of any dividend or
distribution by the Fund; or
6. The legality of any borrowing.
(d) The Custodian need not maintain any insurance for the exclusive benefit
of the Fund, but hereby warrants that as of the date of this Agreement it
is maintaining a bankers Blanket Bond in an amount that is consistent with
what other custodians of mutual funds maintain and hereby agrees to notify
the Fund in the event that such bond is canceled or otherwise lapses.
(e) Consistent with and without limiting the language contained in Section
16(a), it is specifically acknowledged that the Custodian shall have no
duty or responsibility to:
1. Question any Instruction or make any suggestions to the Fund or an
Authorized Person regarding any Instruction;
2. Supervise or make recommendations with respect to investments or
the retention of Securities;
3. Subject to Section 16(b)(3) hereof, evaluate or report to the Fund
or an Authorized Person regarding the financial condition of any
broker, agent or other party to which Securities are delivered or
payments are made pursuant to this Agreement; or
19
4. Review or reconcile trade confirmations received from brokers.
(f) AMOUNTS DUE FROM OR TO TRANSFER AGENT. The Custodian shall not be under
any duty or obligation to take action to effect collection of any amount
due to any Portfolio from the Transfer Agent or its designee nor to take
any action to effect payment or distribution by the Transfer Agent or its
designee of any amount paid by the Custodian to the Transfer Agent in
accordance with this Agreement.
(g) NO DUTY TO ASCERTAIN AUTHORITY. The Custodian shall not be under any
duty or obligation to ascertain whether any Securities at any time
delivered to or held by it for the Fund and specifically allocated to a
Portfolio are such as may properly be held by the Fund under the provisions
of the Articles of Incorporation and the Prospectus.
(h) INDEMNIFICATION. The Fund agrees to indemnify and hold the Custodian
harmless from all loss, cost, taxes, charges, assessments, claims, and
liabilities (including, without limitation, liabilities arising under the
Securities Act of 1933, the Securities Exchange Act of 1934 and the 1940
Act and state or foreign securities laws) and expenses (including
reasonable attorneys fees and disbursements) arising directly or indirectly
from any action taken or omitted by the Custodian (i) at the request or on
the direction of Fund or in reasonable reliance upon the Prospectus or (ii)
upon an Instruction; provided, that the foregoing indemnity shall not apply
to any loss, cost, tax, charge, assessment, claim, liability or expense to
the extent the same is attributable to the Custodian's or any
Sub-Custodian's negligence, willful misconduct, bad faith or reckless
disregard of duties and obligations under this Agreement or any other
agreement relating to the custody of Fund property.
(i) The Fund agrees to hold the Custodian harmless from any liability or
loss resulting from the imposition or assessment of any taxes or other
governmental charges on a Portfolio.
(j) Without limiting the foregoing, the Custodian shall not be liable for
any loss which results from:
1. the general risk of investing;
2. subject to Section 16(b) hereof, investing or holding property in a
particular country including, but not limited to, losses resulting
from nationalization, expropriation or other governmental actions;
regulation of the banking or securities industry; currency
restrictions, devaluations or fluctuations; and market conditions
which prevent the orderly execution of securities transactions or
affect the value of property held pursuant to this Agreement; or
20
3. consequential, special or punitive damages for any act or failure
to act under any provision of this Agreement, even if advised of the
possibility thereof.
(k) FORCE MAJEURE. No party shall be liable to the other for any delay in
performance, or non- performance, of any obligation hereunder to the extent
that the same is due to forces beyond its reasonable control, including but
not limited to delays, errors or interruptions caused by the other party or
third parties, any industrial, juridical, governmental, civil or military
action, acts of terrorism, insurrection or revolution, nuclear fusion,
fission or radiation, failure or fluctuation in electrical power, heat,
light, air conditioning or telecommunications equipment, or acts of God.
(1) INSPECTION OF BOOKS AND RECORDS. The Custodian shall create and
maintain all records relating to its activities and obligations under this
Agreement in such manner as will meet the obligations of the Fund under the
1940 Act, with particular attention to Section 31 thereof and Rules 31a-1
and 31a-2 thereunder, and under applicable federal and state laws. All such
records shall be the property of the Fund and shall at all times during
regular business hours of the Custodian be open for inspection by duly
authorized officers, employees and agents of the Fund and by the
appropriate employees of the Securities and Exchange Commission. The
Custodian shall, at the Fund's request, supply the Fund with a tabulation
of Securities 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.
(m) ACCOUNTING CONTROL REPORT. The Custodian shall provide, promptly, upon
request of the Fund, such reports as are available concerning the internal
accounting controls and financial strength of the Custodian.
17. Term and Termination.
--------------------
(a) This Agreement shall become effective on the date first set forth above
(the "Effective Date") and shall continue in effect thereafter until
terminated in accordance with Section 17(b).
(b) Either of the parties hereto may terminate this Agreement with respect
to any Portfolio by giving to the other party a notice in writing
specifying the date of such termination, which, in case the Fund is the
terminating party, shall be not less than 60 days after the date of
Custodian receives such notice or, in case the Custodian is the terminating
party, shall be not less than 120 days after the date the Fund receives
such notice. In the event such notice is given by the Fund, it shall be
accompanied by a certified resolution of the Board of Trustees, electing to
terminate this Agreement with respect to any Portfolio and designating a
successor custodian or custodians.
21
In the event such notice is given by the Custodian, the Fund shall, on or
before the termination date, deliver to the Custodian a certified
resolution of the Board of Trustees, designating a successor custodian or
custodians. In the absence of such designation by the Fund, the Custodian
may designate a successor custodian, which shall be a person qualified to
so act under the 0000 Xxx. If the Fund fails to designate a successor
custodian with respect to any Portfolio, the Fund shall upon the date
specified in the notice of termination of this Agreement and upon the
delivery by the Custodian of all Securities (other than Securities held in
the Book-Entry System which cannot be delivered to the Fund) and moneys of
such Portfolio, be deemed to be its own custodian and the Custodian shall
thereby be relieved of all duties and responsibilities pursuant to this
Agreement, other than the duty with respect to Securities held in the
Book-Entry System which cannot be delivered to the Fund.
(c) Upon the date set forth in such notice under paragraph (b) of this
Section 17, this Agreement shall terminate to the extent specified in such
notice, and the Custodian shall upon receipt of a notice of acceptance by
the successor custodian on that date deliver directly to the successor
custodian all Securities and moneys then held by the Custodian and
specifically allocated to the Portfolio or Portfolios specified, after
deducting all fees, expenses and other amounts for the payment or
reimbursement of which it shall then be entitled with respect to such
Portfolio or Portfolios.
18. Miscellaneous.
-------------
(a) Annexed hereto as Schedule A is a certification signed by two of the
present officers of the Fund setting forth the names of the present
Authorized Persons. The Fund agrees to furnish to the Custodian a new
certification in similar form in the event that any such present Authorized
Person ceases to be such an Authorized Person or in the event that other or
additional Authorized Persons are elected or appointed. Until such new
certification is received by the Custodian, the Custodian shall be fully
protected in acting under the provisions of this Agreement upon
Instructions which Custodian reasonably believes were given by an
Authorized Person, as identified in the last delivered certification.
Unless such certification specifically limits the authority of an
Authorized Person to specific matters or requires that the approval of
another Authorized Person is required, Custodian shall be under no duty to
inquire into the right of such person, acting alone, to give any
instructions whatsoever under this Agreement.
(b) Any notice or other instrument in writing, authorized or required by
this Agreement to be given to the Custodian, shall be sufficiently given if
addressed to the Custodian and mailed or delivered to it at its offices at
its address stated on the first page hereof or at such other place as the
Custodian may from time to time designate in writing.
22
(c) Any notice or other instrument in writing, authorized or required by
this Agreement to be given to the Fund, shall be sufficiently given if
addressed to the Fund and mailed or delivered to it at its offices at its
address shown on the first page hereof or at such other place as the Fund
may from time to time designate in writing.
(d) Except as expressly provided herein, Agreement may not be amended or
modified in any manner except by a written agreement executed by both
parties with the same formality as this Agreement.
(e) This Agreement shall extend to and shall be binding upon the parties
hereto, and their respective successors and assigns; provided, however,
that this Agreement shall not be assignable by the Fund without the written
consent of the Custodian, or by the Custodian without the written consent
of the Fund, and any attempted assignment without such written consent
shall be null and void.
(f) This Agreement shall be construed in accordance with the laws of the
State of Illinois.
(g) The captions of the Agreement are included for convenience of reference
only and in no way define or delimit any of the provisions hereof or
otherwise affect their construction or effect.
(h) This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original, but such counterparts shall,
together, constitute only one instrument.
(i) The Custodian shall not disclose or use nonpublic information (as
defined by Regulation S-P) provided by the Fund, except as necessary to
carry out the purpose for which such information is provided, including
information that is used in accordance with Rules 14 and 15 of Regulation
S-P in the ordinary course of business or as required by law.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective representatives duly authorized as of the day and
year first above written.
SURGEONS DIVERSIFIED INVESTMENT FUND
By: /s/ Xxxxxxx X. Xxx
-------------------------------
Name: Xxxxxxx X. Xxx, Esq.
Title: President
23
The undersigned, Xxxx X. Xxxxxx, does hereby certify that he is the duly
elected, qualified and acting Secretary of SURGEONS DIVERSIFIED INVESTMENT FUND
(the "Fund") and further certifies that the person whose signature appears above
is a duly elected, qualified and acting officer of the Fund with full power and
authority to execute this Custody Agreement on behalf of the Fund and to take
such other actions and execute such other documents as may be necessary to
effectuate this Agreement.
/s/ Xxxx X. Xxxxxx
-------------------------
Secretary
SURGEONS DIVERSIFIED INVESTMENT FUND
THE NORTHERN TRUST COMPANY
By: /s/ Xxxx Xxxxxx-Xxxxx
-------------------------------
Name: Xxxx Xxxxxx-Xxxxx
Title: Second Vice President
24
SCHEDULE A
CERTIFICATION OF AUTHORIZED PERSONS
Pursuant to paragraphs 1(b) and 18(a) of the Agreement, the undersigned
officers of Surgeons Diversified Investment Fund hereby certify that the
person(s) whose name(s) and signature(s) appear below have been duly authorized
by the Board of Trustees to give Instructions on behalf of the Fund.
NAME SIGNATURE
Xxxxxxx X. Xxx /s/ Xxxxxxx X. Xxx
-------------------------- ---------------------------
Xxxxxxx X. Xxxxxxx /s/ Xxxxxxx X. Xxxxxxx
-------------------------- ---------------------------
Xxxxxx X. Xxxxxx /s/ Xxxxxx X. Xxxxxx
-------------------------- ---------------------------
Xxxx X. Xxxxx /s/ Xxxx X. Xxxxx
-------------------------- ---------------------------
Xxxx X. Xxxxxx /s/ Xxxx X. Xxxxxx
-------------------------- ---------------------------
Xxxxxxx X. Bridge /s/ Xxxxxxx X. Bridge
-------------------------- ---------------------------
Xxxx X. Bridge /s/ Xxxx X. Bridge
-------------------------- ---------------------------
Xxxxx X. Xxxxxxxxxxx /s/ Xxxxx X. Xxxxxxxxxxx
-------------------------- ---------------------------
Xxxxx X. Xxxxx /s/ Xxxxx X. Xxxxx
-------------------------- ---------------------------
Xxxx X. Xxxxxxx /s/ Xxxx X. Xxxxxxx
-------------------------- ---------------------------
Xxxxx X. Xxxx /s/ Xxxxx X. Xxxx
-------------------------- ---------------------------
Certified as of the 26th day of July, 2006:
OFFICER: OFFICER:
/s/ Xxxxxxx X. Xxx /s/ Xxxx X. Xxxxxx
------------------------------- --------------------------------
(Signature) (Signature)
Xxxxxxx X. Xxx Xxxx X. Xxxxxx
------------------------------- --------------------------------
(Name) (Name)
President Secretary
------------------------------- --------------------------------
(Title) (Title)
25
SCHEDULE C
A U.S. Securities Custody and Related Services Fee SCHEDULE for the
AMERICAN COLLEGE OF SURGEONS MUTUAL FUND
o ETF Portfolio Managed by NTGI
U.S. SECURITIES CUSTODY SERVICES PROPOSAL
Northern Trust has three components to its custody fee structure:
1. A charge per account,
2. A variable charge on the market value of assets based upon the
country of investment, and;
3. A variable charge per transaction.
1. ACCOUNT-BASED FEE
$1,000 per ETF account
2. ASSET-BASED FEE
United States Waived
3. TRANSACTION-BASED FEES
U.S. Equity Waived
U.S. Fixed income Waived
Third-party payments/fixed deposits outside $50 per
Northern Trust
Wire Transfers and Xxxx to Markets $10 per
OTHER COSTS
A charge may be applied for:
o Services required in respect of any directly held property,
derivatives or venture capital/private equity portfolios will
be evaluated and priced on a case by case business, according
to the level of work involved.
o The transactions involved in portfolio restructuring
o Supporting/facilitating on-site visits by your auditors
ANNUAL U.S. SECURITIES CUSTODY MINIMUM
Waived
EXCESS CASH MANAGEMENT SERVICES PROPOSAL
Excess U.S. dollar cash balances will be eligible for earnings credits, which
can be used to offset fees, within each calendar year.
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NORTHERN TRUST
26
SCHEDULE C
INVESTMENT RISK AND ANALYTICAL SERVICES PROPOSAL (OPTIONAL)
Northern Trust has an array of products available to assist in managing risk as
well as analyzing performance.
ANALYTICS SERVICE PACKAGE
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STANDARD REPORTING CUSTOM REPORTING
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XXXXX 0 - x0,000* XXXXX 0 - XXXXXXXXXX FEE
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o Rates of Return o Customized Performance Reporting
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o Index/Benchmark Comparisons
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XXXXX 0 - $2,500* LEVEL 2 - MINIMUM FEE - $4,500*
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XXXXX 0 service plus: Xxxxx 0 Standard Reporting plus:
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o Daily Performance o Executive Summary/Board Reporting
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o Universes/Peer Group comparisons o Consultant Analysis
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o Characteristics o Board/Committee Presentations
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o Statistics
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*Prices are per portfolio; annual fee and composite/groups included.
MATERIAL CHANGES AND TERMS OF PROPOSAL
The fees quoted above are offered contingent upon the information provided and
assume that actual experience will not be materially different from projected
activity. "Material" changes, for the purposes of this provision, will be
changes in excess of 10% from the assumptions used.
Fees will be directly debited from the Client's account four (4) weeks following
the issuance of fee notification at quarter end for charges related to the
previous quarter. The debit will be performed in the Client's chosen currency as
mutually agreed in advance with Northern Trust.
In the event of a disputed invoice, the Client should contact their relationship
manager with three (3) weeks following the issuance of fee notification so that
the fee charge can be adjusted before the direct debit takes place. If an error
is discovered after the direct debit, an appropriate adjustment will be made to
the fee in the following quarter.
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NORTHERN TRUST
27
SCHEDULE I
(COUNTRIES FOR WHICH CUSTODIAN SHALL NOT HAVE RESPONSIBILITY
UNDER SECTION 3A FOR MANAGING FOREIGN CUSTODY ARRANGEMENTS)
None
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