Exhibit
(g)
FORM
OF CUSTODY AGREEMENT
AGREEMENT
dated as of _________, 2019, between RIMROCK FUNDS TRUST, a statutory trust organized under the laws of the State of Delaware,
having its principal office and place of business at 000 Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxx, XX 00000 (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.
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 Directors,
the President, and any Vice President, the Secretary, the Treasurer or any other person,
whether or not any such person is an officer or employee of the Fund, duly authorized
by the Board of Directors 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 Directors” shall mean the Board of Directors or 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 Directors
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) | “Eligible
Securities Depository” shall have the same meaning as set forth in Rule 17f-7(b)(1). |
| (h) | “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. |
| (i) | “1940
Act” shall mean the Investment Company Act of 1940, and the Rules and Regulations
thereunder, all as amended from time to time. |
| (j) | “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 D hereto. |
| (k) | “Prospectus”
shall include each current prospectus and statement of additional information of the
Fund with respect to a Portfolio. |
| (l) | “Rule
17f-5” shall mean Rule 17f-5 under the 1940 Act. |
| (m) | “Rule
17f-7” shall mean Rule 17f-7 under the 1940 Act. |
| (n) | “Shares”
refers to the shares of the Fund. |
| (o) | “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. |
| (p) | “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. |
| (q) | “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.
| (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.
| (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(p) 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
Section 1(p), 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 Directors 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. |
| (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 paragraph (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 D, 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; |
| (ii) | determine
that the written contract with such Foreign Custodian governing the foreign custody arrangements
complies with the requirements of Rule 17f-5 and will provide reasonable care for the
Fund’s assets; |
| (iii) | establish
a system to monitor the appropriateness of maintaining the Fund’s assets with such
Foreign Custodian and the contract governing the Fund’s foreign custody arrangements; |
| (iv) | provide
to the Fund’s Board of Directors, at least annually, written reports notifying
the Board of the placement of the Fund’s assets with a particular Foreign Custodian
and 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. |
4. Use
of Sub-Custodians and Securities Depositories.
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 Directors 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 Directors of any material changes in said risks. |
5. Compensation.
| (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 (the “Fee Schedule”) 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. |
| (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.
| (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; |
| 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. The Custodian will provide prompt notice to the
Fund of any such overdraft. |
| (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 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. 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. |
| (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 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 which may be in the form of cash or obligations issued by the United States
Government, its agencies or instrumentalities; |
| 9. | Deliver
Securities 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 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, exchange, depository
or similar entity as a condition of making investments in the foreign market under such
entity’s jurisdiction. |
7. Purchase
and Sale of Securities.
| (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. |
| (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.
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
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 reasonable and 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 reasonable industry practice.
10. Provisional
Credits and Debits.
| (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 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 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 out of
pocket loss which it may reasonably 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 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 Fund (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 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 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. |
| (e) | Upon
receipt of an Instruction described in paragraph (d) above, the Custodian shall
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
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
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 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. |
14. Corporate
Action.
| (a) | 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. |
| (b) | The
Custodian shall act on Corporate Actions solely as directed by the Fund or its designee.
If a Portfolio receives a distribution of rights, the Custodian shall hold to expiration,
sell or exercise such rights solely as directed by the Fund or its designee. If a corporation
whose common stock shares are held in the Portfolio declares a dividend in such stock,
and payment of such dividend results in a fractional share, the Custodian shall promptly
sell such fraction in any global market where such fractional share is not permitted. |
| (c) | The
Custodian will 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 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. |
| 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 which shall occur as the result of the 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 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 exercise reasonable care,
prudence and diligence, the Custodian shall be liable to the Fund 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 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, and may act, upon the advice of counsel (who may
be counsel for the Fund) on all matters and shall be without liability for any action
reasonably taken or omitted in good faith and without negligence pursuant to such advice. |
| 5. | 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 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. |
| 6. | 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 misconduct, bad faith or negligence of the Custodian
(including any Sub-Custodian ) in supplying or omitting to supply the Fund or its designee
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 Directors 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) | Blanket
Bond. 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 and hereby agrees to notify the Fund in the event that such bond
is canceled or otherwise lapses. |
| (e) | Further
Limitation of Duties. 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 |
| 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 or in reliance on the advice
of the 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) | In
order that the Indemnification provisions contained in this Agreement shall apply, upon
the assertion of a claim for which one party may be required to indemnify the other,
the indemnified party shall promptly notify the indemnifying party of such assertion,
and shall keep that party advised with respect to all developments concerning such claim.
The indemnifying party shall have the option to participate with the indemnified party
in the defense of such claim or to defend against said claim in its own name or in the
name of the indemnified party with mutually agreed counsel. The indemnified party shall
in no case confess any claim or make any compromise in any case in which the indemnifying
party may be required to indemnify the indemnified party except with the indemnifying
party’s prior written consent. The indemnifying party shall have the right to settle
any third-party claim or liability without the consent of the indemnified party provided
that such settlement (i) fully releases the indemnified party from any liability and
provides no admission of wrongdoing, and (ii) does not subject the indemnified party
to any additional obligation, whether financial or otherwise. In the event that any such
settlement does not meet the requirements of (i) and (ii) above, then the indemnified
party must consent to such settlement in writing, which consent shall not be unreasonably
withheld, conditioned or delayed. The indemnified party shall use reasonable efforts
to mitigate any loss for which the indemnifying party may be liable under its indemnification. |
| (j) | Taxes.
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. |
| (k) | Custodian
Not Liable for Certain Losses. Without limiting the foregoing, the Custodian shall
not be liable for any loss which results from: |
| 1. | the
general risk of investing; or |
| 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. |
| (l) | Mutual
Limitation of Liability. Neither party shall be liable to the other for any 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; provided that nothing contained
in this Section 16(l) shall limit the Fund’s indemnification obligations
under this Agreement to the extent such consequential, special or punitive damages are
included in any third party claim in connection with which the Custodian is otherwise
entitled to indemnification hereunder. |
| (m) | 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. |
| (n) | 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. |
| (o) | 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. Confidentiality,
Cybersecurity and Privacy
| (a) | The
Custodian will
establish and maintain a commercially reasonable written information security and privacy
program that complies with the requirements of federal and state law applicable to the
Custodian, including but not limited to maintenance of a written information security
program and incident response plan; use of anti-malware, anti-virus, and firewall systems;
encryption of personal data where technically feasible; access and file controls that
reasonably restrict access to personal data; disaster recovery measures; regular incident
response and disaster recovery testing; risk assessment and at least annual program review;
and employee training. |
| (b) | The
Custodian will inform the Fund of any known breach in Custodian’s information security
program that results in disclosure of Confidential Information of the Fund as soon as
reasonably possible if required by law or regulation. |
| (c) | Each
party agrees to keep all Confidential Information received from the other party confidential
and to not disclose such information except as expressly permitted in this Agreement.
Each party shall take commercially reasonable measures at least equal to those it takes
to protect its own Confidential Information to protect the secrecy of and avoid disclosure
and unauthorized use of Confidential Information. Each party shall promptly notify the
other party of any misuse or misappropriation of such other party’s Confidential
Information of which it becomes aware. The party receiving Confidential Information (a
“Receiving Party”) shall not use the Confidential Information of the
other party (the “Disclosing Party”) for any purpose other than as
contemplated in this and any related agreement among the parties hereto. A Receiving
Party may not reverse engineer, disassemble or decompile any software or code which embodies
the Disclosing Party’s Confidential Information and are provided hereunder. The
Receiving Party may disclose Confidential Information only to those affiliates and its
and their respective officers, directors, employees, contractors, attorneys, accountants,
auditors, and other professional advisors (collectively, its “Representatives”)
who are required to have such Confidential Information in order to carry out the business
relationship contemplated herein, and the Receiving Party shall remain responsible for
its Representatives’ compliance with the terms of this Agreement. |
| (d) | The
term “Confidential Information” shall include all non-public confidential
information concerning a party’s business, investment holdings and transactions,
and operations, but does not include any information that (i) at the time of disclosure
or thereafter is available to the public other than as a result of a breach of this Agreement
by the Receiving Party or its Representatives, (ii) is already in the possession or becomes
available to the Receiving Party on a non-confidential basis from a source other than
the Disclosing Party or its Representatives, provided that, to the knowledge of
the Receiving Party, such source is not bound by an obligation of confidentiality to
the Disclosing Party, or (iii) has been independently developed by the Receiving Party
or its Representatives without violation of this Agreement. |
| (e) | If,
in connection with any legal, regulatory, administrative or legal proceeding a Receiving
Party is requested or required to make a disclosure of any Confidential Information,
the Receiving Party will notify the Disclosing Party promptly (unless such Disclosure
relates to routine regulatory filings, examinations or inspections or such notification
is prohibited by law) of the request so that, if, possible, the Disclosing Party may
seek an appropriate protective order or other remedy or waive compliance with the terms
of this Agreement. The Receiving Party will cooperate with the Disclosing Party on a
reasonable basis at the Disclosing Party’s expense in its efforts to obtain a protective
order or other remedy, but if a protective order or other remedy is not obtained within
the required time period, the Receiving Party may make such disclosure without liability
if it is nevertheless legally required to do so. Additionally, nothing contained herein
shall preclude the disclosure of Confidential Information, but only to the extent necessary,
in connection with any proceedings which may arise between the parties relating to this
Agreement. |
18. 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 90 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 Directors, electing to terminate this Agreement with respect to any Portfolio
and designating a successor custodian or custodians. |
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 Directors, 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. |
19. 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. |
| (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) | Any
dispute arising out of or in connection with this Agreement that cannot be settled by
the parties after discussion shall be settled by arbitration in Chicago, Illinois under
the Commercial Rules of the American Arbitration Association using three arbitrators.
Nothing in this Agreement shall prevent a party from applying to a court of competent
jurisdiction for provisional or interim measures or injunctive relief as may be necessary
to safeguard the property or rights that are the subject matter of the arbitration. |
| (h) | The
Custodian and the Fund shall each appoint an arbitrator, obtain its acceptance of such
appointment, and deliver written notification of such appointment and acceptance to the
other party by fifteen (15) days after the due date of the respondent’s answering
statement. The two party-appointed arbitrators shall jointly agree upon and appoint a
third arbitrator who shall serve as the chairperson of the arbitral panel. The party
arbitrators shall obtain the chairperson’s acceptance of such appointment and notify
the parties in writing of said appointment and acceptance within thirty (30) days after
their appointment and acceptance as party arbitrators. If the two party-appointed arbitrators
are unable to agree upon the selection and appointment of the chairperson within that
time frame, they shall so notify the parties in writing. Upon such notice, one or both
of the parties may request in writing that the chairperson be appointed by the American
Arbitration Association in accordance with the Commercial Rules. The American Arbitration
Association shall notify the parties in writing of the appointment and acceptance of
the chairperson within twenty-one (21) days of receiving such request. The decision of
the arbitrators shall be final and binding on all parties to the proceeding. The arbitrators
shall have the power to award compensatory money damages (subject to the limits of liability
set forth here in), and interest thereupon, and shall have exclusive jurisdiction over
all matters in dispute, but will not have the power to award exemplary or punitive damages. |
| (i) | The
section headings and 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. |
| (j) | This
Agreement may be executed in any number of counterparts, each of which shall be deemed
to be an original, but such counterparts shall, together, constitute only one instrument. |
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective representatives duly authorized
as of the day and year first above written.
The
undersigned, Xxxxxx X. Xx Xxxx, does hereby certify that he/she is the duly elected, qualified and acting Secretary of Rimrock
Funds Trust (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.
_________________________
Secretary
Rimrock
Funds Trust
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THE NORTHERN TRUST COMPANY |
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By: |
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Name: |
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Title: |
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SCHEDULE
A
CERTIFICATION
OF AUTHORIZED PERSONS
Pursuant
to Sections 1(b) and 18(a) of the Agreement, the undersigned officers of Rimrock Funds Trust hereby certify that the person(s)
whose name(s) appear(s) below have been duly authorized by the Board of Directors to give Instructions on behalf of the Fund.
NAME
____________________________
____________________________
____________________________
____________________________
____________________________
Certified
as of the ____ day of _______, 2019:
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| OFFICER: |
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OFFICER: |
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| (Signature) |
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(Signature) |
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| Xxxxxx X. Xx Xxxx |
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Xxxxxxx Xxxxxxx |
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(Name) |
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| Secretary |
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Treasurer |
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SCHEDULE
B
List
of Portfolios
Rimrock
Core Bond Fund
SCHEDULE
C
Fee
Schedule
SCHEDULE
D
(Countries
for which Custodian shall not have responsibility under
Section 3A for managing foreign custody arrangements)
Ivory
Coast
Saudi
Arabia
