Exhibit (g)(7)
CUSTODY AGREEMENT
AGREEMENT dated as of January 28, 2009, between Clearwater Investment
Trust, a business trust organized under the laws of the State of Massachusetts,
having its principal office and place of business at 0000 Xxxxx Xxxxx Xxxxx, 00
Xxxx Xxxxxxx Xxxxxx, Xx. Xxxx, Xxxxxxxxx 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 such
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.
1
(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 A
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).
(p) "Transfer Agent" shall mean the person which performs as the transfer
agent, dividend disbursing agent and shareholder servicing agent for the
Fund.
2
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(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 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.
3
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;
(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
4
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 an
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 Custodian shall be compensated for its services rendered under
this Agreement in accordance with the fees set forth in the Fee Schedule
annexed hereto as Schedule B 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 B. Pursuant to the Management Contract between the Trust and its
investment adviser, the adviser is responsible for reimbursing these fees
if paid by the Fund or paying them directly to Northern.
(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 B of this Agreement.
(c) Any compensation agreed to hereunder may be adjusted from time to time
by attaching to Schedule B, or replacing Schedule B 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 or its investment adviser will promptly pay to the
Custodian the amount of such billing. The Custodian
5
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.
6
(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 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
7
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,
8
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 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 received by the Custodian for the account of a
Portfolio.
9
(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.
(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
10
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 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.
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
11
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 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,
12
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.
13
(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
14
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.
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 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,
15
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.
(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 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
16
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 misfeasance, 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
17
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) 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) 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.
18
(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) 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
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
19
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.
(n) Confidentiality. Except as otherwise required by law or in connection
with any required disclosure to a regulator or as necessary in the course
of providing the services hereunder, Northern agrees to treat as
confidential all records and other information relative to the Fund,
including nonpublic portfolio holdings information, and to not use such
records and information for any purpose other than performance of
Northern's responsibilities and duties hereunder. Northern represents that
it has implemented policies and procedures designed to safeguard such
information so that no employee or other representative trades on
confidential information, communicates it to others, except as
contemplated by this Agreement, or otherwise misuses it. Northern may seek
a waiver of such confidentiality provisions by furnishing reasonable prior
notice to the Fund and obtaining approval in writing from the Fund, which
approval shall not be unreasonably withheld. Waivers of confidentiality
are automatically effective without further action by Northern where
Northern may be exposed to civil or criminal fines, contempt proceedings
or other liability for failure to comply, when requested to divulge such
information by duly constituted governmental authorities with respect to
Internal Revenue Service levies, subpoenas or similar actions, or with
respect to requests by the Fund.
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).
20
(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 the
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.
18. Miscellaneous.
(a) The Fund agrees to furnish to the Custodian a certification signed by
two of the present officers of the Fund setting forth the names of the
present Authorized Persons and a new certification in similar form in the
event that any such 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.
21
(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) 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 Fund and the Custodian agree that the obligations of the Fund
under this Agreement shall not be binding upon or any member of the Board
of Directors or any shareholder, nominee, officer, employee or agent,
whether past, present or future, of the Fund individually, but are binding
only upon the assets and property of the Fund or of the appropriate
Portfolio(s) thereof. The execution and delivery of this Agreement have
been duly authorized by Fund and signed by an authorized officer of the
Fund, acting as such, but neither such authorization by the Fund nor such
execution and delivery by such officer shall be deemed to have been made
by any member of the Board of Directors or by any officer or shareholder
of the Fund individually or to impose any liability on any of them
personally, but shall bind only the assets and property of the Fund or of
the appropriate Portfolio(s) thereof.
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.
22
CLEARWATER INVESTMENT TRUST
By: /s/ X.X. Xxxxxxxxxxxx Xx.
------------------------
Name: Xxxxxx X. Xxxxxxxxxxxx, Xx.
Title: Chairman
The undersigned, Xxxxxxxxx X. Xxxxxxxxxxxx, does hereby certify that he/she is
the duly elected, qualified and acting Secretary of Clearwater Investment 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.
/s/ Xxxxxxxxx X. Xxxxxxxxxxxx
-----------------------------
Secretary
Clearwater Investment Trust
THE NORTHERN TRUST COMPANY
By: /s/ Xxxxx X. Xxxxxxx
----------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
With respect to the payment obligation set forth in Section 5 and Schedule B:
CLEARWATER MANAGEMENT COMPANY, INC.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------
Print Name: Xxxxxxx X. Xxxxxx
Title: Chairman
23
SCHEDULE A
Investment Portfolios
Clearwater International Fund
24
SCHEDULE B
Fees
The fee schedule includes:
Global Custody Services
o Safekeeping of assets
o Settlement
o Income collection
o Tax withholding and reclamation
o Proxy handling
o Corporate action processing
o Cash movement processing
o Foreign exchange
o On-line daily reporting to all relevant parties
o Relationship oversight
Northern Trust Passport
o Access
o Training
o Consulting
--------------------------------------------------------------------------------
GLOBAL CUSTODY SERVICES FEES
--------------------------------------------------------------------------------
Account Related Fees
Per fund per annum $2,000
Market Related Fees
-----------------------------------------------------------------------------------------------------------
Asset-Based Fee Transaction
Tier Market (Bps on AUM) Based Fee
-----------------------------------------------------------------------------------------------------------
I Canada, Euroclear, Ireland, UK, US .90 8.00
-----------------------------------------------------------------------------------------------------------
II Belgium, France, Germany, Italy, Japan, Netherlands, 1.50 10.00
Spain, Switzerland
-----------------------------------------------------------------------------------------------------------
III Australia, Austria, Denmark, Finland, Luxembourg, New 2.50 12.00
Zealand, Norway, Sweden
-----------------------------------------------------------------------------------------------------------
IV Hong Kong, Malaysia, Philippines, Portugal, Singapore, 6.00 20.00
Taiwan, Thailand
-----------------------------------------------------------------------------------------------------------
V Brazil, China, Greece, India, Indonesia, Mexico, South 8.00 30.00
Africa, South Korea
-----------------------------------------------------------------------------------------------------------
VI Argentina, Czech Republic, Estonia, Hungary, Israel, 15.00 35.00
Xxxxxxxxxx, Xxxxxx, Xxxxxxxxx, Xxxxxx, Xxxxxx
Xxxxxxxx, Turkey
-----------------------------------------------------------------------------------------------------------
VII Chile, Croatia, Cyprus, Egypt, Iceland, Malta, 20.00 40.00
Pakistan, Sri Lanka
-----------------------------------------------------------------------------------------------------------
VIII Ecuador, Jamaica, Morocco, Namibia, Nigeria, Peru, 36.00 40.00
Romania, Russia, Slovenia, Swaziland, Trinidad,
Tunisia, Ukraine, Uruguay, Venezuela
-----------------------------------------------------------------------------------------------------------
Bahrain, Bangladesh, Bolivia, Bulgaria, Colombia, 40.00 40.00
IX Jordan, Lebanon, Mauritius, Oman, Palestine, Qatar,
United Arab Emirates, Vietnam
-----------------------------------------------------------------------------------------------------------
X Bermuda, Bosnia/Herzegovina, Botswana, Ghana, Ivory 45.00 50.00
Coast, Kenya, Serbia, Uganda, Zambia, Zimbabwe
-----------------------------------------------------------------------------------------------------------
25
Other Transaction-based Fees
One-line asset charges (LP's for example) per asset per annum $ 1,500
Third-party payments/fixed deposits outside Northern Trust $ 50 per
Wire Transfers and Xxxx to Markets (outgoing) $ 10 per
Derivative Fees
Transaction Processing:
1. Exchange Traded Derivatives $25 per transaction
2. OTC simple(1) $200 per transaction
3. OTC complex(2) $300 per transaction
Position Maintenance:
4. OTC simple(1) - monthly valued $200 per position per annum
5. OTC complex(2) - monthly valued $500 per position per annum
6. OTC simple(1) - daily valued $600 per position per annum
7. OTC complex(2) - daily valued $900 per position per annum
8. OTC investment manager supplied prices(3) $100 per position per annum
9. Swap reset $20 per cash movement
10. Margin / collateral movements $20 per cash/security movement
26
Definitions of/caveats around OTC
(1)Simple/custody vanilla includes = Simple = IRS, FRA, vanilla currency
options, zero-coupon swaps, currency
swaps, basis swaps
(2)Complex/custody complex includes= Complex = CDS/CDX, swaptions, inflation
swaps, total return swaps, equity/index
option, CFD, caps/floors
Independent valuations of above through
Markit Partners, SuperDerivatives and
Bear Xxxxxx Pricing Direct
Other Costs
A charge may be applied for:
o Market associated execution costs, not limited to but including
stamp duty, securities re-registration charges, third-party foreign
exchange, third-party fixed deposits, and proxy voting physical
representation/ad hoc expenses will be passed through at cost as
applicable.
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 the Funds' auditors
--------------------------------------------------------------------------------
INVESTMENT RISK AND ANALYTICAL SERVICES PROPOSAL
--------------------------------------------------------------------------------
Northern Trust has an array of products available to assist in managing risk as
well as analyzing performance.
Analytics Service Package
The Trust has selected the package set forth below.
Analytics Service Package - Standard Reporting
Level 1 - $1,500 *
Rates of Return
Index/Benchmark Comparisons
Daily Performance
* Prices are per portfolio, annual fee and composite/groups included.
A charge may apply for:
o Additional pricing feeds - if Northern Trust was to be directed by
the Funds to obtain a pricing feed not already utilized by Northern
Trust.
o Special performance or financial reporting, if applicable.
o Other customary out-of -pocket expenses - see below.
--------------------------------------------------------------------------------
EXCESS CASH MANAGEMENT SERVICES
--------------------------------------------------------------------------------
27
Northern Trust provides excess U.S. dollar cash management services via its
Institutional Mutual Funds. The expense ratios on the Institutional Money Market
funds range from 20-35 bps. For non-U.S. dollar excess cash, Northern Trust
offers competitive rates via interest bearing deposits.
--------------------------------------------------------------------------------
OUT-OF-POCKET EXPENSES
--------------------------------------------------------------------------------
Customary out-of-pocket expenses, to be passed through if applicable, may apply
and include but are not limited to:
o Postage/express carrier charges
o Reporting: Statements, confirmations, tax forms, and e-documents
o Fulfillment costs - production and mailing
o Proxy costs - production and mailing
o Retention of records charges
--------------------------------------------------------------------------------
ANNUAL MINIMUM FEES
--------------------------------------------------------------------------------
The Trust has also entered into a Fund Administration and Account Services
Agreement with Northern Trust. Fees for all services provided by Northern Trust
pursuant to the Fund Administration and Account Services Agreement and this
Agreement will be subject to a combined annual relationship minimum of $150,000.
--------------------------------------------------------------------------------
TERM OF FEES
--------------------------------------------------------------------------------
These Fees shall be in place for a minimum of three (3) years from inception of
the relationship.
--------------------------------------------------------------------------------
MATERIAL CHANGES
--------------------------------------------------------------------------------
The fees set forth above are contingent upon the information provided and assume
that actual experience will not be materially different from projected activity
and/or assumptions.
In the event of a disputed invoice, the Client should contact their relationship
manager within three (3) weeks following the issuance of fee notification so
that the fee charge can be adjusted before payment. takes place. If an error is
discovered after payment, an appropriate adjustment will be made to the fee in
the following quarter.
28
SCHEDULE I
(Countries for which Custodian shall not have responsibility under
Section 3A for managing foreign custody arrangements)
None
29
