EXHIBIT 10.1
CUSTODY AGREEMENT
THIS CUSTODY AGREEMENT ("Agreement"), dated as of 11/24, 2009, is
entered into by and between THE HUNTINGTON NATIONAL BANK, a national bank
organized under the laws of the United States (the "CUSTODIAN" or "BANK"), and
Infinity Capital Group, Inc., a business trust formed under the laws of the
State of Maryland ("TRUST").
W I T N E S S E T H:
WHEREAS, the Custodian serves as custodian and foreign custody manager
for certain of its customers; and
WHEREAS, the Trust wishes to employ Custodian to act as its custodian
and as the foreign custody manager for the Trust to provide for the custody and
safekeeping of the assets of the Trust as required by the Act, and to provide
related services, all as provided herein, and Custodian is willing to accept
such employment, subject to the terms and conditions herein set forth.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the Custodian and Trust hereby agree, as follows:
DEFINITIONS: The following words and phrases, when used in this
Agreement, unless the context otherwise requires, shall have the following
meanings:
ACT OR 1940 ACT shall mean the Investment Company Act of 1940, as
amended from time to time.
1934 ACT shall mean the Securities and Exchange Act of 1934, as amended
from time to time.
ADVANCE(S) shall mean any extension of credit by or through the
Custodian or by or through any Sub-custodian and shall include, without
limitation, amounts due to the Custodian or any Sub-custodian as the principal
counterparty to any foreign exchange transaction with the Trust, or paid to
third parties for account of the Trust or in discharge of any expense, tax or
other item payable by the Trust.
AGENT(S) shall have the meaning set forth in Section 8 hereof.
APPLICABLE LAW shall mean with respect to each jurisdiction, all (a)
laws, statutes, treaties, regulations, guidelines (or their equivalents); (b)
orders, interpretations, licenses and permits; and (c) judgments, decrees,
injunctions, writs, orders and similar actions by a court of competent
jurisdiction, compliance with which is required or customarily observed in such
jurisdiction.
AUTHORIZED PERSON(S) shall mean any person, whether or not any such
person is an Officer or employee of the Trust, who is duly authorized by the
Board of Trustees of the Trust to give Instructions on behalf of the Trust or
any Fund in accordance with Section 4 herein, and named in APPENDIX A attached
hereto and as amended from time to time by resolution of the Board of Trustees,
certified by an Officer, and received by the Custodian.
BOARD OF TRUSTEES shall mean the Trustees from time to time serving
under the Trust's Agreement and Declaration of Trust, as from time to time
amended.
BOOK-ENTRY SYSTEM shall mean a federal book-entry system as provided in
Subpart O of Treasury Circular Xx. 000, 00 XXX 306, in Subpart B of 31 CFT Part
350, or in such book-entry regulations of federal agencies as are substantially
in the form of Subpart O.
CLEARING CORPORATION shall mean any entity or system established for
purposes of providing securities settlement and movement and associated
functions for a given market.
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DELEGATION SCHEDULE shall mean any separate schedule entered into
between the Custodian and the Trust or its authorized representative with
respect to certain matters concerning theadministration of Investments held
outside of the United States and the appointment of Eligible Foreign Custodians"
under the provisions of Rule 17f-5 of the 1940 Act.
DIVIDEND AND TRANSFER AGENT shall mean the dividend and transfer agent
appointed, from time to time, pursuant to a written agreement between the
dividend and transfer agent and the Trust.
FINRA means the Financial Industry Regulatory Authority.
FOREIGN FINANCIAL REGULATORY AUTHORITY shall have the meaning given by
Section 2(a)(50) of the 1940 Act.
FUND(S) shall mean each series of the Trust listed in Appendix B and
any additional series added pursuant to Written Instructions. A series is
individually referred to as a "Fund" and collectively referred to as the
"Funds."
INSTRUCTION(S) shall mean Oral Instructions or Written Instructions.
Instructions may be continuing Written Instructions when deemed appropriate by
both parties.
INVESTMENT(S) shall mean any investment asset of the Trust and/or a
Fund, including without limitation, Money Market Securities and Securities.
MONEY MARKET SECURITY shall mean debt obligations issued or guaranteed
as to principal and/or interest by the government of the United States or
agencies or instrumentalities thereof, commercial paper, obligations (including
certificates of deposit, bankers' acceptances, repurchase agreements and reverse
repurchase agreements with respect to the same), and time deposits of domestic
banks and thrift institutions whose deposits are insured by the Federal Deposit
Insurance Corporation, and short-term corporate obligations where the purchase
and sale of such securities normally require settlement in federal funds or
their equivalent on the same day as such purchase and sale, all of which mature
in not more than thirteen (13) months.
OFFICER shall mean the Chairman, President, Secretary, Treasurer, any
Vice President, Assistant Secretary or Assistant Treasurer of the Trust.
ORAL INSTRUCTIONS shall mean Instructions orally transmitted to and
received by the Custodian from an Authorized Person (or from a person that the
Custodian reasonably believes in good faith to be an Authorized Person) and
confirmed by Written Instructions in such a manner that such Written
Instructions are received by the Custodian on the Business Day in accordance
with Section 4 herein immediately following receipt of such Oral Instructions,
provided, however, The Trust agrees that the failure of the Custodian to receive
such confirming instructions shall in no way affect the validity of the
transactions or enforceability of the transactions authorized by such Oral
Instructions.
PROSPECTUS shall mean with respect to each Fund, the Fund's then
currently effective prospectus and Statement of Additional Information, as filed
with and declared effective from time to time by the Securities and Exchange
Commission.
SEC shall mean the Securities and Exchange Commission of the United
States.
SECURITY OR SECURITIES shall mean Money Market Securities, common
stock, preferred stock, options, financial futures, bonds, notes, debentures,
corporate debt securities, mortgages, bank certificates of deposit, bankers'
acceptances, mortgage-backed securities or other obligations and any
certificates, receipts, warrants, or other instruments or documents representing
rights to receive, purchase, or subscribe for the same or evidencing or
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representing any other rights or interest therein, or any similar property or
assets, including securities of any registered investment company, that the
Custodian has the facilities to clear and to service.
SECURITIES DEPOSITORY shall mean a central or book entry system or
clearing agency established under Applicable Law for purposes of recording the
ownership, transfer, and/or entitlement to investment securities for a given
market.
SUB-CUSTODIAN(S) shall mean each Sub-custodian appointed by the
Custodian pursuant to Section 8 of this Agreement, but shall not include
Securities Depositories.
TRUST shall mean the business trust which is the party to this
Agreement, and which is an open-end management investment company registered
under the Act.
WRITTEN INSTRUCTIONS means communications in writing actually received
by the Custodian from an Authorized Person in accordance with Section 4. A
communication in writing includes a communication by facsimile, telex or between
electro-mechanical or electronic devices as set forth in Section 4 (where the
use of such devices have been approved by resolution of the Board of Trustees
and the resolution is certified by an Officer and delivered to the Custodian).
All written communications shall be directed to the Custodian, attention:
Institutional Trust Custody Group.
1. APPOINTMENT OF CUSTODIAN; ACCEPTANCE. Trust hereby designates,
constitutes, and appoints Custodian as custodian and its foreign custody manager
for all Investments and cash owned by each Fund at any time during this
Agreement, and Custodian hereby accepts such appointment and agrees to perform
the duties thereof as provided in this Agreement.
2. FURNISHING OF DOCUMENTS; AND REPRESENTATIONS AND WARRANTIES OF
TRUST.
2.1 The following documents, including any amendments thereto, will be
provided contemporaneously with the execution of the Agreement, to the Custodian
by the Trust:
1) A copy of the Declaration of Trust of the Trust certified by
the Secretary.
2) A copy of the By-Laws of the Trust certified by the Secretary.
3) A copy of the resolution of the Board of Trustees of the Trust
appointing the Custodian, certified by the Secretary.
4) A copy of the then current Prospectuses.
5) A Certificate of the President and Secretary of the Trust
setting forth the names and signatures of all Authorized
Persons.
In addition, the Trust agrees to notify the Custodian in writing of the
appointment, termination or change in appointment of any Dividend and
Transfer Agent.
2. 2. REPRESENTATIONS AND WARRANTIES OF TRUST: The Trust makes the
following representations and warranties to Custodian:
2.2.1 The obligations of the Trust set forth in this Agreement have
been authorized by the Trust's Board of Trustees, acting as such
Trustees for and on behalf of the Trust, pursuant to the authority
vested in them under the laws of the State of its formation, the
Declaration of Trust and the By-Laws of the Trust, provided, however,
that this Agreement has been executed by Officers of the Trust as
officers, and not individually, and the obligations contained herein
are not binding upon any of the Trustees, Officers, agents or holders
of shares, personally, but bind only the Trust and then only to the
extent of the assets of the Trust.
2.2.3 Appendix A sets forth the names and the signatures of all
Authorized Persons as of this date, as certified by Trust. Trust agrees
to furnish to the Custodian a new Appendix A in form similar to the
attached Appendix A, if any present Authorized Person ceases to be an
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Authorized Person or if any other or additional Authorized Persons are
elected or appointed. Until such new Appendix A shall be received, the
Custodian shall be fully protected in acting under the provisions of
this Agreement upon Instructions or signatures of the then current
Authorized Persons as set forth in the last delivered Appendix A.
2.2.3 This Agreement to the best of Trust's knowledge, does not violate
any constitutive document, agreement, judgment, order or decree to
which the Trust is a party or by which it is bound, including without
limitation any agreement in effect pertaining to the assets which may
be maintained under this Agreement.
2.2.4 By providing a Written Instruction with respect to an acquisition
of an Investment in a jurisdiction other than the United States of
America, the Trust shall be deemed to have confirmed to the Custodian
that the Trust has (i) assessed and accepted all material Country or
Sovereign Risks and accepted responsibility for their occurrence, (ii)
made all determinations required to be made by the Trust under
Applicable Law, and (iii) appropriately and adequately disclosed to all
persons who have rights in or to such Investments, all material
investment risks, including those relating to the custody and
settlement infrastructure or the servicing of securities in such
jurisdiction.
2.2.5. By providing a Written Instruction in respect of an Investment
(which Written Instruction may relate to among other things, the
execution of trades), the Trust hereby (i) authorizes Custodian to
complete such documentation as may be reasonably required or
appropriate for the execution of the Written Instruction, and agrees to
be contractually bound to the terms of such documentation "as is"
without recourse against Custodian; (ii) represents, warrants and
covenants that Trust has accepted and agreed to comply with all
Applicable Law, terms and conditions to which Trust and/or Trust's
Investment may be bound, including without limitation, requirements
imposed by the Investment prospectus or offering circular, subscription
agreement, any application or other documentation relating to an
Investment (e.g., compliance with suitability requirements and
eligibility restrictions); (iii) acknowledges and agrees that Custodian
will not be responsible for the accuracy of any information provided to
Custodian by or on behalf of the Trust, or for any underlying
commitment or obligation inherent to an Investment; (iv) represents,
warrants and covenants that Trust will not effect any sale, transfer or
disposition of Investment(s) held in Custodian's name by any means
other than the issuance of an Written Instructions by the Trust to
Custodian; (v) acknowledges that collective investment schemes (and/or
their agent(s)) in which the Trust invests may pay to Custodian certain
fees (including without limitation, shareholder servicing and/or
trailer fees) in respect of the Trust's investments in such schemes;
(vi) represents, warrants and covenants that Trust will provide
Custodian with such information as is necessary or appropriate to
enable Custodian's performance pursuant to an Instruction or under this
Agreement; and (vii) represents that unless otherwise disclosed to
Custodian in writing, that Trust is not a "Plan" (which term includes
(1) employee benefit plans that are subject to the United States ("US")
Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
or plans, individual retirement accounts and other arrangements that
are subject to Section 4975 of the US Internal Revenue Code of 1986, as
amended (the "Code"), (2) plans, individual retirement accounts and
other arrangements that are subject to the prohibited transaction
provisions of Section 406 of ERISA or Section 4975 of the Code, and (3)
entities the underlying assets of which are considered to include "plan
assets" of such plans, accounts and arrangements), or an entity
purchasing shares on behalf of, or with the "plan assets" of, a Plan.
3. REPRESENTATIONS AND WARRANTIES OF CUSTODIAN.
3.1 Custodian hereby represents and warrants that it is a national bank
duly organized under the laws of the United States of America and that this
Agreement has been duly executed by the Custodian and to the best of Custodian's
knowledge will not violate any Applicable Law or any agreement, instrument
judgment order or decree which Custodian is a party or to which it is bound.
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4. INSTRUCTIONS.
4.1 AUTHORIZED PERSONS. The Custodian may treat any Authorized Person
as having full authority of the Trust to issue Instructions hereunder The
Custodian shall be entitled to rely upon the authority of any Authorized Persons
until it receives appropriate written notice from the Custodian to the contrary.
4.2 FORM OF INSTRUCTION. Each Instruction, other than Oral
Instructions, shall be transmitted by such secured or authenticated
electro-mechanical means as Custodian shall make available to the Trust from
time to time unless the Trust shall elect to transmit such Written Instruction
in accordance with Subsections (a) through (c) of this Section.
(a) WRITTEN INSTRUCTIONS. Written Instructions may be transmitted in a
writing that bears the manual signature of Authorized Persons.
(b) CUSTODIAN DESIGNATED SECURED-TRANSMISSION METHOD. Written
Instructions may be transmitted through a secured or tested electro-mechanical
means identified by the Trust or by an Authorized Person entitled to give
Instruction and acknowledged and accepted by the Custodian and/or its
Sub-custodian(s), it being understood that such acknowledgment shall authorize
the Custodian to accept such means of delivery but shall not represent a
judgment by the Custodian as to the reasonableness or security of the means
utilized by the Authorized Person.
(c) OTHER FORMS OF INSTRUCTION. Instructions may also be transmitted by
another means determined by the Trust or Authorized Persons and acknowledged and
accepted by the Custodian and/or its Sub-custodian(s) (subject to the same
limits as to acknowledgements as are contained in Subsection (b), above)
including Oral Instructions, and Instructions by SWIFT or telefax (whether
tested or untested).
When an Instruction is given by means established under Subsections (a) through
(c), it shall be the responsibility of the Custodian to use reasonable care to
adhere to any security or other procedures established in writing between the
Custodian and the Authorized Person with respect to such means of Instruction,
but the Authorized Person shall be solely responsible for determining that the
particular means chosen is reasonable under the circumstances. If Oral
Instructions are transmitted to and received by Custodian from an Authorized
Person, Custodian may act on any such instructions which it reasonably and in
good faith believes is such an Authorized Person. Oral Instructions shall be
binding upon the Custodian only if and when the Custodian takes action with
respect thereto. Oral Instructions shall be confirmed by Written Instructions
not later than the Business Day immediately following receipt of such Oral
Instructions in the manner set forth herein, provided, however, The Trust agrees
that the failure of the Custodian to receive such confirming instructions shall
in no way affect the validity of the transactions or enforceability of the
transactions hereby authorized by the Trust. The Trust agrees that the Custodian
shall incur no liability to the Trust for acting upon Oral Instructions given to
the Custodian hereunder concerning such transactions. With respect to telefax
instructions, the parties agree and acknowledge that receipt of legible
instructions cannot be assured, that the Custodian cannot verify that authorized
signatures on telefax instructions are original or properly affixed, and that
the Custodian shall not be liable for losses or expenses incurred through
actions taken in reliance on inaccurately stated, illegible or unauthorized
telefax instructions. The provisions of Section 4A of the Uniform Commercial
Code shall apply to funds transfers performed in accordance with Instructions.
4.3 COMPLETENESS AND CONTENTS OF INSTRUCTIONS. The Authorized Person
shall be responsible for assuring the adequacy and accuracy of Instructions.
Particularly, upon any acquisition or disposition or other dealing in
Investments and upon any delivery and transfer of any Investment or moneys, the
person initiating the Instruction shall give the Custodian an Instruction with
appropriate detail. If the Custodian determines that an Instruction is either
unclear or incomplete, the Custodian may give prompt notice of such
determination to the Trust, and the Trust shall thereupon amend or otherwise
reform the Instruction. In such event, the Custodian shall have no obligation to
take any action in response to the Instruction initially delivered until the
redelivery of an amended or reformed Instruction.
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4.4 TIMELINESS OF INSTRUCTIONS. In giving an Instruction, the Trust
shall take into consideration delays which may occur due to the involvement of a
Sub-custodian or agent, differences in time zones, and other factors particular
to a given market, exchange or issuer. When the Custodian has established
specific timing requirements or deadlines with respect to particular classes of
Instruction, or when an Instruction is received by the Custodian at such a time
that it could not reasonably be expected to have acted on such instruction due
to time zone differences or other factors beyond its reasonable control, the
execution of any Instruction received by the Custodian after such deadline or at
such time (including any modification or revocation of a previous Instruction)
shall be at the risk of the Trust.
5 PURCHASE AND SALE OF INVESTMENTS.
5.1 DELIVERY OF INVESTMENTS. During the term of this Agreement, Trust
will deliver or cause to be delivered to the Custodian all Investments to be
held by the Custodian for the account of any Fund. Custodian will not have any
duties or responsibilities with respect to such Investments until actually
received by the Custodian. The Custodian is hereby authorized by the Trust,
acting on behalf of a Fund, to actually deposit any assets of the Fund in the
Book-Entry System or in a Securities Depository, provided, however, that the
Custodian shall be accountable to the Trust for the assets of the Fund so
deposited. Assets deposited in the Book-Entry System or the Security Depository
will be represented in accounts which include only assets held by the Custodian
for customers, including but not limited to accounts in which the Custodian acts
in a fiduciary or representative capacity. As and when received, the Custodian
shall deposit to the account(s) of a Fund any and all payments for Shares of
that Fund issued or sold from time to time as they are received from the Trust's
distributor or Dividend and Transfer Agent or from the Trust itself. The
Custodian shall not be responsible for any Securities, moneys or other assets of
any Fund until actually received.
5. 1.1 PURCHASE OF INVESTMENTS. Promptly after each purchase of
Investments by the Trust, the Trust shall deliver to the Custodian (i)
with respect to each purchase of Investments which are not Money Market
Securities, Written Instructions, and (ii) with respect to each
purchase of Money Market Securities, Oral or Written Instructions,
specifying with respect to each such purchase the:
1) Name of the issuer and the title of the securities;
2) Number of shares, principal amount purchased (and accrued
interest, if any) or other units purchased;
3) Date of purchase and settlement;
4) Purchase price per unit;
5) Total amount payable;
6) Name of the person from whom, or the broker through which, the
purchase was made;
7) Name of the person to whom such amount is payable; and
8) Name of the Fund for which the purchase was made.
The Custodian shall, against receipt of Investments purchased by or for
the Trust, pay out of the moneys held for the account of such Fund the
total amount specified in the Written Instructions to the person named
therein. The Custodian shall not be under any obligation to pay out
moneys to cover the cost of a purchase of Investments for a Fund, if in
the relevant Fund custody account there is insufficient cash available
to the Fund for which such purchase was made. With respect to any
repurchase agreement transaction for the Funds, the Custodian shall
assure that the collateral reflected on the transaction advice is
received by the Custodian.
5.2. SALE OF INVESTMENTS. Promptly after each sale of Investments by a
Fund, the Trust shall deliver to the Custodian (i) with respect to each sale of
Investments which are not Money Market Securities, Written Instructions, and
(ii) with respect to each sale of Money Market Securities, Oral or Written
Instructions, specifying with respect to each such sale the:
1) Name of the issuer and the title of the Investments;
2) Number of shares, principal amount sold (and accrued interest,
if any) or other units sold;
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3) Date of sale and settlement;
4) Sale price per unit;
5) Total amount receivable;
6) Name of the person to whom, or the broker through which, the
sale was made,
7) Name of the person to whom such Investments are to be
delivered, and
8) Fund for which the sale was made;
The Custodian shall deliver the Investments against receipt of the total amount
specified in the Instructions.
5.3 DELIVERY VERSUS PAYMENT FOR PURCHASES AND SALES. Purchases and
sales of Investments effected by Custodian will be made on a delivery versus
payment basis in accordance with generally accepted trade practices, or the
terms of the instrument representing such Investment. The Custodian may, in its
sole discretion, upon receipt of Written Instructions, elect to settle a
purchase or sale transaction in some other manner, but only upon receipt of
acceptable indemnification from the Fund.
5.4 PAYMENT ON SETTLEMENT DATE. On contractual settlement date, the
account of the Fund will be charged for all purchased Investments settling on
that day, regardless of whether or not delivery is made. Likewise, on
contractual settlement date, proceeds from the sale of Investments settling that
day will be credited to the account of Fund, irrespective of delivery.
Exceptions to contractual settlement on purchases and sales, that will continue
to settle delivery versus payment, include real estate, venture capital,
international trades, open-ended mutual funds, non standard depository
settlements and in-kind trades.
5.5 SEGREGATED ACCOUNTS. The Custodian shall, upon receipt of Written
Instructions so directing it, establish and maintain a segregated account or
accounts for and on behalf of a Fund. Cash and/or Investments may be transferred
into such account or accounts for specific purposes, to-wit:
1) In accordance with the provision of any agreement among the
Trust, the Custodian, and a broker-dealer registered under the
1934 Act, and also a member of the FINRA (or any futures
commission merchant registered under the Commodity Exchange
Act), relating to compliance with the rules of the Options
Clearing Corporation and of any registered national securities
exchange, the Commodity Futures Trading Commission, any
registered contract market, or any similar organization or
organizations requiring escrow or other similar arrangements
in connection with transactions by the Fund;
2) For purposes of segregating cash or Investments in connection
with options purchased, sold, or written by the Fund or
commodity futures contracts or options thereon purchased or
sold by the Fund;
3) For the purpose of compliance by the Fund with the procedures
required for reverse repurchase agreements, firm commitment
agreements, standby commitment agreements, short sales, or any
other securities by Act Release No. 10666, or any subsequent
release or releases or rule of the SEC relating to the
maintenance of segregated accounts by registered investment
companies;
4) For the purpose of segregating collateral for loans of
Investments made by the Fund; and
5) For other proper corporate purposes, but only upon receipt of,
in addition to Instructions, a copy of a resolution of the
Board of Trustees, certified by an Officer, setting forth the
purposes of such segregated account.
Each segregated account established hereunder shall be established and
maintained for a single Fund only. All Instructions relating to a segregated
account shall specify the Fund involved.
5.6 ADVANCES FOR SETTLEMENT. Except as otherwise may be agreed upon by
the parties hereto, Custodian shall not be required to comply with any
Instructions to settle the purchase of any Investments on behalf of a Fund
unless there is sufficient cash in the account(s) pertaining to such Fund at the
time or to settle the sale of any Investments from such an account(s) unless
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such Investments are in deliverable form. Notwithstanding the foregoing, if the
purchase price of such Investments exceeds the amount of cash in the account(s)
at the time of such purchase, Custodian may, in its sole discretion, advance the
amount of the difference in order to settle the purchase of such Investments.
The amount of any such advance shall be deemed a loan from Custodian to Trust
payable on demand and bearing interest accruing from the date such loan is made
up to but not including the date such loan is repaid at the rate per annum
customarily charged by Custodian on similar loans.
5.7. SAFEKEEPING OF TRUST ASSETS. The Custodian shall not be
responsible for (a) the safekeeping of Investments not delivered or that are not
caused to be issued to it or its Sub-custodians, or, (b) pre-existing faults or
defects in Investments that are delivered to the Custodian or its
Sub-custodians. The Custodian shall hold Investments for the account of the
Trust and shall segregate Investments from assets belonging to the Custodian and
shall cause its Sub-custodians to segregate Investments from assets belonging to
the Sub-custodian in an account held for the Trust or in an account maintained
by the Sub-custodian generally for non-proprietary assets of the Custodian. In
the event of a loss of a Security for which loss the Custodian is responsible
under the terms of this Agreement, the Custodian shall replace such Security, or
in the event that such replacement cannot be effected, the Custodian shall pay
to the Trust the fair market value of such Investment based on the last
available price as of the close of business in the relevant market on the date
that a claim was first made to the Custodian with respect to such loss, or, such
other lesser amount as shall be agreed by the parties.
6. ADMINISTRATIVE DUTIES CUSTODIAN.
6.1 DUTIES. Custodian shall perform the following administrative duties
with respect to and in connection with Investments of the Trust.
A. SEGREGATION OF NON-CASH ASSETS; USE OF SECURITIES DEPOSITORIES. All
Investments and non-cash property held by the Custodian for the account of a
Fund (other than Investments maintained in a Securities Depository or Book-entry
System) shall be physically segregated from other Investments and non-cash
property in the possession of the Custodian (including the Investments and
non-cash property of the other Funds) and shall be identified as subject to this
Agreement. The Custodian may deposit and maintain Investments in any Securities
Depository, either directly or through one or more Sub-custodians appointed by
the Custodian. Investments held in a Securities Depository shall be held (a)
subject to the agreement, rules, statement of terms and conditions or other
document or conditions effective between the Securities Depository and the
Custodian or the Sub-custodian, as the case may be, and (b) in an account for
the Trust or in bulk segregation in an account maintained for the
non-proprietary assets of the entity holding such Investments in the Securities
Depository. If market practice or the rules and regulations of the Securities
Depository prevent the Custodian, the Sub-custodian or (any agent of either)
from holding its client assets in such a separate account, the Custodian, the
Sub-custodian or other agent shall as appropriate segregate such Investments for
the benefit of the Trust from the assets held for the benefit of clients of the
Custodian's generally on its own books.
B. SECURITIES IN BEARER AND REGISTERED FORM. All Investments held which
are issued or issuable only in bearer form, shall be held by the Custodian in
that form; all other Investments held for a Fund may be registered in the name
of the Custodian, any sub-custodian appointed in accordance with this Agreement,
or the nominee of any of them. The Trust agrees to furnish to the Custodian
appropriate instruments to enable the Custodian to hold, or deliver in proper
form for transfer, any Investments that it may hold for the account of any Fund
and which may, from time to time, be registered in the name of a Fund.
Investments which are certificated may be held in registered or bearer form: (a)
in the Custodian's vault; (b) in the vault of a Sub-custodian or agent of the
Custodian or a Sub-custodian; or (c) in an account maintained by the Custodian,
Sub-custodian or agent at a Securities Depository, all in accordance with
customary market practice in the jurisdiction in which any Investments are held.
Investments which are registered may be registered in the name of the Custodian,
a Sub-custodian, or in the name of the Trust or a nominee for any of the
foregoing, and may be held in any manner set forth in this Section 6 with or
without any identification of fiduciary capacity in such registration.
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Investments which are represented by book-entry may be so held in an account
maintained by the book-entry agent on behalf of the Custodian, a Sub-custodian,
an Agent of the Custodian, or a Securities Depository.
C. DUTIES OF CUSTODIAN AS TO SECURITIES. Unless otherwise instructed by
the Trust, with respect to all Investments held for the Trust, the Custodian
shall:
1) Collect all income due and payable with respect to such
Investments;
2) Present for payment and collect amounts payable upon all
Investments which may mature or be called, redeemed, or
retired, or otherwise become payable;
3) Surrender interim receipts or Investments in temporary form
for Securities in definitive form; and
4.) Execute, as Custodian, any necessary declarations or
certificates of ownership under the Federal income tax laws or
the laws or regulations of any other taxing authority,
including any foreign taxing authority, now or hereafter in
effect.
D. CERTAIN ACTIONS UPON WRITTEN INSTRUCTIONS. Upon receipt of a Written
Instructions and not otherwise, the Custodian shall:
1) Execute and deliver to such persons as may be designated in
such Written Instructions proxies, consents, authorizations,
and any other instruments whereby the authority of the Trust
as beneficial owner of any Investments may be exercised;
2) Deliver any Investments in exchange for other Investments 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 any Investments to any protective committee,
reorganization committee, or other person in connection with
the reorganization, refinancing, merger, consolidation,
recapitalization, or sale of assets of any corporation, and
receive and hold under the terms of this Agreement such
certificates of deposit, interim receipts or other instruments
or documents as may be issued to it to evidence such delivery;
4) Make such transfers or exchanges of the assets of any Fund and
take such other steps as shall be stated in the Written
Instructions to be for the purpose of effectuating any duly
authorized plan of liquidation, reorganization, merger,
consolidation or recapitalization of the Trust; and
5) Deliver any Securities held for any Fund to the depository
agent for tender or other similar offers.
E. CUSTODIAN TO DELIVER PROXY MATERIALS. The Custodian shall promptly
deliver to the Trust all notices, proxy material and executed but unvoted
proxies pertaining to shareholder meetings of Securities held by any Fund. The
Custodian shall not vote or authorize the voting of any Securities or give any
consent, waiver or approval with respect thereto unless so directed by Written
Instructions.
F. CUSTODIAN TO DELIVER TENDER OFFER INFORMATION. The Custodian shall
promptly deliver to the Trust all information received by the Custodian and
pertaining to Securities held by any Fund with respect to tender or exchange
offers, calls for redemption or purchase, or expiration of rights. If the Trust
desires to take action with respect to any tender offer, exchange offer or other
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similar transaction, the Trust shall notify the Custodian at least five Business
Days prior to the date on which the Custodian is to take such action. The Trust
will provide or cause to be provided to the Custodian all relevant information
for any Investment which has unique put/option provisions at least five Business
Days prior to the beginning date of the tender period.
G. CUSTODIAN TO DELIVER SECURITY AND TRANSACTION INFORMATION. On each
Business Day that the Federal Reserve Bank is open, the Custodian shall furnish
the Trust with a detailed statement of monies held for the Fund under this
Agreement and with confirmations and a summary of all transfers to or from the
account of the Fund. At least monthly and from time to time, the Custodian shall
furnish the Trust with a detailed statement of the Securities held for the Fund
under this Agreement. Where Securities are transferred to the account of the
Fund without physical delivery, the Custodian shall also identify as belonging
to the Fund a quantity of Securities 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 the Book-Entry System or the Depository. With respect to
information provided by this section, it shall not be necessary for the
Custodian to provide formal Notice as described below. It shall be sufficient to
communicate by such means as shall be mutually agreeable to the Trust and the
Custodian.
6.2 CONTRACTUAL OBLIGATIONS AND SIMILAR INVESTMENTS. From time to time,
a Fund's assets may include Investments that are not ownership interests as may
be represented by certificate (whether registered or bearer), by entry in a
Securities Depository or by Book-entry Agent, registrar or similar agent for
recording ownership interests in the relevant Investment. If the Fund shall at
any time acquire such Investments, including without limitation deposit
obligations, loan participations, repurchase agreements and derivative
arrangements, the Custodian shall (a) receive and retain, to the extent the same
are provided to the Custodian, confirmations or other documents evidencing the
arrangement; and (b) perform on the Fund's account in accordance with the terms
of the applicable arrangement, but only to the extent directed to do so by
Written Instruction. The Custodian shall have no responsibility for agreements
running to the Trust as to which it is not a party other than to retain, to the
extent the same are provided to the Custodian, documents or copies of documents
evidencing the arrangement and, in accordance with Written Instruction, to
include such arrangements in reports made to the Trust.
6.3 OWNERSHIP CERTIFICATES AND DISCLOSURE OF THE CUSTODIAN'S INTEREST.
The Custodian is hereby authorized to execute on behalf of the Trust ownership
certificates, affidavits or other disclosure required under Applicable Law or
established market practice in connection with the receipt of income, capital
gains or other payments by the Trust with respect to Investments, or in
connection with the sale, purchase or ownership of Investments.
6.4 DISTRIBUTION OF ASSETS. The Trust shall furnish to the Custodian a
copy of the resolution of the Board of Trustees of the Trust, certified by the
Trust's Secretary, either (i) setting forth the date of the declaration of any
dividend or distribution in respect of Shares of any Fund of the Trust, the date
of payment thereof, the record date as of which the Fund shareholders entitled
to payment shall be determined, the amount payable per share to Fund
shareholders of record as of that date, and the total amount to be paid by the
Dividend and Transfer Agent on the payment date, or (ii) authorizing the
declaration of dividends and distributions in respect of Shares of a Fund on a
daily basis and authorizing the Custodian to rely on Written Instructions
setting forth the date of the declaration of any such dividend or distribution,
the date of payment thereof, the record date as of which the Fund shareholders
entitled to payment shall be determined, the amount payable per share to Fund
shareholders of record as of that date, and the total amount to be paid by the
Dividend and Transfer Agent on the payment date. On the payment date specified
in the resolution or Written Instructions described above, the Custodian shall
segregate such amounts from moneys held for the account of the Fund so that they
are available for such payment.
6.4.1 SEGREGATION OF REDEMPTION PROCEEDS. Upon receipt of Written
Instructions so directing it, the Custodian shall segregate
amounts necessary for the payment of redemption proceeds to be
made by the Dividend and Transfer Agent from moneys held for
the account of the Fund so that they are available for such
payment.
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6.4.2 DISBURSEMENTS OF CUSTODIAN. Upon receipt of a Written
Instruction directing payment and setting forth the name and
address of the person to whom such payment is to be made, the
amount of such payment, the name of the Fund from which
payment is to be made, and the purpose for which payment is to
be made, the Custodian shall disburse amounts as and when
directed from the assets of that Fund. The Custodian is
authorized to rely on such directions and shall be under no
obligation to inquire as to the propriety of such directions.
6.4.3 PAYMENT OF CUSTODIAN FEES. Upon receipt of Written
Instructions directing payment, the Custodian shall disburse
moneys from the assets of the Trust in payment of the
Custodian's fees and expenses as provided in this Agreement.
6.4.4. Sufficient Funds for Payment. The Custodian shall not be under
any obligation to pay out moneys to cover any of the foregoing
payments if in the relevant Fund account there is insufficient
cash available to the Fund for which such payment is to be
made.
6.5 OTHER DEALINGS. The Custodian shall otherwise act as directed by
Instruction, including without limitation effecting the free payments of moneys
or the free delivery of Investments, provided that such Instruction shall
indicate the purpose of such payment or delivery and that the Custodian shall
record the party to whom the payment or delivery is made.
6.6 NONDISCRETIONARY DETAILS. The Custodian shall attend to all
nondiscretionary details in connection with the sale or purchase or other
administration of Investments, except as otherwise directed by an Instruction.
7. CASH ACCOUNTS, DEPOSITS, MONEY MOVEMENTS, & TRUST BORROWINGS.
7.1 CASH DEPOSITS. During the term of this Agreement, Trust will
deliver or cause to be delivered to Custodian all moneys to be held by the
Custodian for the account of any Fund. Subject to the terms and conditions set
forth in this Section 7, the Trust hereby authorizes the Custodian to open and
maintain, with itself or with Sub-custodians, cash accounts in United States
Dollars, in such other currencies as are the currencies of the countries in
which Trust maintains Investments or in such other currencies as Trust shall
from time to time request by Written Instruction. Notwithstanding anything in
this Agreement to contrary effect, the Trust shall be liable as principal for
any overdrafts occurring in any cash accounts. Custodian shall be entitled to
reverse any deposits made on Trust's or any Fund's behalf where such deposits
have been entered and moneys are not finally collected within 20 days of the
making of such entry.
7.1.1 TYPES OF ACCOUNTS. Cash accounts opened on the books of the
Custodian (Principal Accounts) shall be opened in the name of the
Trust, coupled with the name of such Fund. Custodian shall hold all
cash received by it for the account of the Trust or any Fund in
accordance with Rule 17f-3 under the Act. Such accounts collectively
shall be a deposit obligation of the Custodian and shall be subject to
the terms of this Section 7 and the general liability provisions
contained in this Agreement. Cash accounts opened on the books of a
Sub-custodian may be opened in the name of the Trust or the
Sub-custodian or in the name of its Sub-custodian for its customers
generally (Agency Accounts). Such deposits shall be obligations of the
Sub-custodian, and shall be treated as an Investment of the Trust.
Accordingly, the Custodian shall be responsible for exercising
reasonable care in the administration of such accounts but shall not be
liable for their repayment in the event such Sub-custodian by reason of
its bankruptcy, insolvency or otherwise, fails to make repayment
through no fault of the Custodian.
7.1.2 ADMINISTRATIVE ACCOUNTS. In connection with the services provided
hereunder, the Custodian is hereby directed to open cash accounts on
its books and records from time to time for the purposes of receiving
subscriptions and/or processing redemptions on behalf of the Trust,
and/or for the purposes of aggregating, netting and/or clearing
transactions (including, without limitation foreign exchange,
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repurchase agreements, capital stock activity, expense payment) or
other administrative purposes, each on behalf of the Trust. Each such
account shall be subject to the terms and conditions of this Agreement
and the Trust shall be liable for the satisfaction of its own
obligations in connection with each such account.
7.2 PAYMENTS AND CREDITS WITH RESPECT TO THE CASH ACCOUNTS. The
Custodian shall make payments from or deposits to any of the cash accounts in
the course of carrying out its administrative duties, including but not limited
to income collection with respect to Investments, and otherwise in accordance
with Instructions. The Custodian and its Sub-custodians shall be required to
credit amounts to the cash accounts only when moneys are actually received in
cleared funds in accordance with banking practice in the country and currency of
deposit. Any credit made to any Principal or Agency Account or any other Fund
account before actual receipt of cleared funds shall be provisional and may be
reversed by the Custodian or its Sub-custodian in the event such payment is not
actually collected. Unless otherwise specifically agreed in writing by the
Custodian or any Sub-custodian, all deposits shall be payable only at the branch
of the Custodian or Sub-custodian where the deposit is made or carried.
7.3 CURRENCY AND RELATED RISKS. The Trust bears risks of holding or
transacting in any currency, including any xxxx to market exposure associated
with a foreign exchange transaction undertaken with or through the Custodian.
Neither the Custodian nor any Sub-custodian shall be liable for any loss or
damage arising from the applicability of any law or regulation now or hereafter
in effect, or from the occurrence of any event, which may delay or affect the
transferability, convertibility or availability of any currency in the country
(a) in which such Principal or Agency Accounts are maintained or (b) in which
such currency is issued, and in no event shall the Custodian or any
Sub-custodian be obligated to make payment of a deposit denominated in a
currency during the period during which its transferability, convertibility or
availability has been affected by any such law, regulation or event. Without
limiting the generality of the foregoing, neither the Custodian nor any
Sub-custodian shall be required to repay any deposit made at a foreign branch of
either the Custodian or any Sub-custodian if such branch cannot repay the
deposit due to a cause for which the Custodian would not be responsible in
accordance with the terms of Section 9 of this Agreement unless the Custodian or
such Sub-custodian expressly agrees in writing to repay the deposit under such
circumstances. All currency transactions in any account opened pursuant to this
Agreement are subject to exchange control regulations of the United States and
of the country where such currency is the lawful currency or where the account
is maintained. Any taxes, costs, charges or fees imposed on the convertibility
of a currency held by the Trust shall be for the account of the Trust.
7.4 FOREIGN EXCHANGE TRANSACTIONS. The Custodian shall, subject to the
terms of this Section, settle foreign exchange transactions (including
contracts, futures, options and options on futures) on behalf and for the
account of the Trust with such currency brokers or banking institutions,
including Sub-custodians, as the Trust may direct pursuant to Instructions. The
obligations of the Custodian in respect of all foreign exchange transactions
shall be contingent on the free, unencumbered transferability of the currency
transacted on the actual settlement date of the transaction.
7.4.1 THIRD PARTY FOREIGN EXCHANGE TRANSACTIONS. The Custodian shall
process foreign exchange transactions (including without limitation
contracts, futures, options, and options on futures), where any third
party acts as principal counterparty to the Trust on the same basis, if
any, that it performs duties as agent for the Trust with respect to any
other of the Trust's investments. Accordingly, the Custodian shall only
be responsible for delivering or receiving currency on behalf of the
Trust in respect of such contracts pursuant to Written Instructions.
The Custodian shall not be responsible for the failure of any
counterparty (including any Sub-custodian) in such agency transaction
to perform its obligations thereunder. The Custodian (a) shall transmit
cash and Written Instructions to and from the currency broker or
banking institution with which a foreign exchange contract or option
has been executed pursuant hereto, (b) may make free outgoing payments
of cash in the form of Dollars or foreign currency without receiving
confirmation of a foreign exchange contract or option or confirmation
that the countervalue currency completing the foreign exchange contract
has been delivered or received or that the option has been delivered or
received, (c) may, in connection with cash payments made to third party
currency broker/dealers for settlement of the Trust's foreign exchange
spot or forward transactions, foreign exchange swap transactions and
similar foreign exchange transactions, process settlements using the
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banking facilities selected by Custodian from time to time according to
such banking facilities standard terms, and (d) shall hold all
confirmations, certificates and other documents and agreements received
by the Custodian and evidencing or relating to such foreign exchange
transactions in safekeeping. The Trust accepts full responsibility for
its use of third-party foreign exchange dealers and for execution of
said foreign exchange contracts and options and understands that the
Trust shall be responsible for any and all costs and interest charges
which may be incurred by the Trust or the Custodian as a result of the
failure or delay of third parties to deliver foreign exchange.
7.5 DELAYS. If no event of Force Majeure shall have occurred and be
continuing and in the event that a delay shall have been caused by the
negligence or willful misconduct of the Custodian in carrying out an Instruction
to credit or transfer cash, the Custodian shall be liable to the Trust: (a) with
respect to Principal Accounts, for interest to be calculated at the rate
customarily paid on such deposit and currency by the Custodian on overnight
deposits at the time the delay occurs for the period from the day when the
transfer should have been effected until the day it is in fact effected; and,
(b) with respect to Agency Accounts, for interest to be calculated at the rate
customarily paid on such deposit and currency by the Sub-custodian on overnight
deposits at the time the delay occurs for the period from the day when the
transfer should have been effected until the day it is in fact effected. The
Custodian shall not be liable for delays in carrying out such Instructions to
transfer cash which are not due to the Custodian's own negligence or willful
misconduct.
7.6 ADVANCES. With respect to any advances of cash made by the
Custodian to or for the benefit of a Fund for any purpose which results in the
Fund incurring an overdraft at the end of any Business Day, such advance shall
be repayable immediately upon demand made by the Custodian at any time. The
Custodian may, in its sole discretion, charge interest accruing from the date of
such overdraft to but not including the date of such repayment at the rate per
annum customarily charged by the Custodian on similar overdrafts. In addition,
the Custodian shall have an automatically perfected statutory security interest
in any Investments purchased with any such unpaid Advance pursuant to Section
9-206 of the Uniform Commercial Code as in effect in the State of Ohio from time
to time and that the Custodian may take any further actions that the Custodian
may reasonably require to collect such unpaid Advance. In addition, for purposes
hereof, deposits maintained in all Principal Accounts (whether or not
denominated in Dollars) shall collectively constitute a single and indivisible
current account with respect to the Trust's obligations to the Custodian for any
unpaid Advances, and balances in such Principal Accounts shall be available for
satisfaction of the Trust's obligations under this Section 7. The Custodian
shall further have a right of offset against the balances in any Agency Account
maintained hereunder to the extent that the aggregate of all Principal Accounts
is overdrawn.
7.7 BORROWINGS. In connection with any borrowings by the Trust, the
Trust will cause to be delivered to the Custodian by a bank or broker requiring
securities as collateral for such borrowings (including the Custodian if the
borrowing is from the Custodian), a notice or undertaking in the form currently
employed by such bank or broker setting forth the amount of collateral. The
Trust shall promptly deliver to the Custodian Written Instructions specifying
with respect to each such borrowing: (a) the name of the bank or broker, (b) the
amount and terms of the borrowing, which may be set forth by incorporating by
reference an attached promissory note duly endorsed by the Trust, or a loan
agreement, (c) the date, and time if known, on which the loan is to be entered
into, (d) the date on which the loan becomes due and payable, (e) the total
amount payable to the Trust on the borrowing date, and (f) the description of
the securities securing the loan, including the name of the issuer, the title
and the number of shares or other units or the principal amount. The Custodian
shall deliver on the borrowing date specified in the Written Instructions the
required collateral against the lender's delivery of the total loan amount then
payable, provided that the same conforms to that which is described in the
Written Instructions. The Custodian shall deliver, in the manner directed by the
Trust, such securities as additional collateral, as may be specified in Written
Instructions, to secure further any borrowing transaction. The Trust 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.
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8. DOMESTIC AND FOREIGN SUB-CUSTODIANS;; SECURITIES DEPOSITORIES.
Subject to the provisions hereinafter set forth in this Section 8, the Trust
hereby authorizes the Custodian to utilize Securities Depositories to act on
behalf of the Trust and the Fund(s) and to appoint from time to time (and at any
time remove) and to utilize agents (Agents) and sub-custodians
("Sub-custodians") to carry out some or all of the duties and obligations of
Custodian under this Agreement provided, however, that the appointment of such
agents and Sub-custodians shall not relieve the Custodian of its administrative
obligations under this Agreement. The list of the Custodian's current Agents and
Sub-custodians is attached hereto on Appendix C. With respect to securities and
cash held by a Sub-custodian, either directly or indirectly (including by a
Securities Depository), notwithstanding any provisions of this Agreement to the
contrary, payment for securities purchased and delivery of securities sold may
be made prior to receipt of securities or payment, respectively, and securities
or payment may be received in a form, in accordance with (a) governmental
regulations, (b) rules of Securities Depositories and Clearing Corporations, (c)
generally accepted trade practice in the applicable local market, (d) the terms
and characteristics of the particular Investment, or (e) the terms of Written
Instructions. The Funds shall reimburse the Custodian for all costs incurred by
the Custodian in connection with opening accounts with any such Agents or
Sub-custodians. Upon request, the Custodian shall promptly forward to the Trust
any documents it receives from any Agent or Sub-custodian appointed hereunder
which may assist trustees of registered investment companies to fulfill their
responsibilities under Rule 17f-5 of the Act.
8.1 DOMESTIC SUBCUSTODIANS AND SECURITIES DEPOSITORIES. The Custodian
may deposit and/or maintain, either directly or through one or more Agents
appointed by the Custodian, Investments of the Trust or its Funds in any
Securities Depository in the United States, including The Depository Trust
Company, provided such Securities Depository meets applicable requirements of
the Federal Reserve Bank or of the Securities and Exchange Commission. The
Custodian may, at any time, appoint any bank as defined in Section 2(a)(5) of
the 1940 Act meeting the requirements of a custodian under Section 17(f) of the
1940 Act and the rules and regulations thereunder to act on behalf of the Trust
or the Funds as a Sub-custodian for purposes of holding Investments of the Trust
in the United States.
8.2 FOREIGN SUBCUSTODIANS AND SECURITIES DEPOSITORIES. Unless
instructed otherwise by the Trust, the Custodian may deposit and/or maintain
non-U.S. Investments of the Trust or its Funds in any non-U.S. Securities
Depository provided such Securities Depository meets the requirements of an
"eligible securities depository" under Rule 17f-7 promulgated under the 1940
Act, or any successor rule or regulation ("Rule 17f-7") or which by order of the
Securities and Exchange Commission is exempted therefrom. Prior to the time that
securities are placed with such depository, but subject to the provisions of
Section 8.4 below, the Custodian shall have prepared or obtained from an Agent
or Sub-custodian an assessment of the custody risks associated with maintaining
assets with the Securities Depository and shall have established a system to
monitor such risks on a continuing basis in accordance with Section 8.5.
Additionally, the Custodian may, from time to time, appoint (a) any bank, trust
company or other entity meeting the requirements of an "eligible foreign
custodian" under Rule 17f-5 or which by order of the Securities and Exchange
Commission is exempted therefrom, or (b) any bank as defined in Section 2(a)(5)
of the 1940 Act meeting the requirements of a custodian under Section 17(f) of
the 1940 Act and the rules and regulations thereunder, to act on behalf of the
Trust or its Funds as a Sub-custodian for purposes of holding Investments of the
Trust and/or its Funds outside the United States.
8.3 REVIEW OF SUB-CUSTODIANS. From time to time, the Custodian may
agree to perform certain reviews of Sub-custodians at the Trust's request. In
such event, the Custodian's duties and obligations with respect to this review
will be performed in accordance with the terms of the attached 17f-5 Delegation
Schedule to this Agreement.
8.4 APPROVAL OF FOREIGN SUB-CUSTODIANS. Unless and except to the extent
that the Trust has requested and the Custodian has accepted delegation of the
appointment of Sub-custodians, the Custodian shall, prior to the appointment of
any Sub-custodian for purposes of holding Investments of the Trust or its Funds
outside the United States, obtain written confirmation of the approval of the
Trust with respect to the identity of such Sub-custodian, such approval to be
signed by an Authorized Person. A Written Instruction to open an account in a
given country shall comprise authorization by the Trust for the Custodian to
hold assets in such country in accordance with the terms of this Agreement. The
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Sub-custodian shall not be required to make independent inquiry as to the
authorization of the Trust or its Fund to invest in such country.
8.5 MONITORING AND RISK ASSESSMENT OF SECURITIES DEPOSITORIES. Prior to
the placement of any assets of the Trust or its Funds with a non-U.S. Securities
Depository, the Custodian: (a) shall provide to the Trust an assessment of the
custody risks associated with maintaining assets within such Securities
Depository; and (b) shall have established a system to monitor the custody risks
associated with maintaining assets with such Securities Depository on a
continuing basis and to promptly notify the Trust of any material changes in
such risk. In performing its duties under this subsection, the Custodian shall
use reasonable care and may rely on such reasonable sources of information as
may be available including but not limited to: (i) published ratings; (ii)
information supplied by a Sub-custodian that is a participant in such Securities
Depository; (iii) industry surveys or publications; (iv) information supplied by
the depository itself, by its auditors (internal or external) or by the relevant
foreign financial regulatory authority. It is acknowledged that information
procured through some or all of these sources may not be independently
verifiable by the Custodian and that direct access to Securities Depositories is
limited under most circumstances. Accordingly, the Custodian shall not be
responsible for errors or omissions in its duties hereunder provided that it has
performed its monitoring and assessment duties with reasonable care. The risk
assessment shall be provided to the Trust by such means as the Custodian shall
reasonably establish. Advices of material change in such assessment may be
provided by the Custodian in the manner established as customary between the
Trust and the Custodian.
8.6 RESPONSIBILITY FOR SUB-CUSTODIANS. Except as provided in the last
sentence of this Section 8.6, the Custodian shall be liable to the Trust for any
loss or damage to the Trust caused by or resulting from the acts or omissions of
any Sub-custodian to the extent that such acts or omissions would be deemed to
be negligence, gross negligence or willful misconduct in accordance with the
terms of the relevant Sub-custodian agreement under the laws, circumstances and
practices prevailing in the place where the act or omission occurred. The
liability of the Custodian in respect of the countries and Sub-custodians so
designated by the Custodian, from time to time shall be subject to the
additional condition that the Custodian actually recovers such loss or damage
from the Sub-custodian.
8.7 NEW COUNTRIES. The Trust shall be responsible for informing the
Custodian sufficiently in advance of a proposed investment which is to be held
in a country in which no Sub-custodian is authorized to act in order that the
Custodian shall, if it deems appropriate to do so, have sufficient time to
establish a sub-custodial arrangement in accordance herewith. In the event the
Custodian is unable to establish such arrangements prior to the time the
Investment is to be acquired, the Custodian is authorized to designate at its
discretion a local safekeeping Agent, and the use of such local safekeeping
Agent shall be at the sole risk of the Trust, and accordingly the Custodian
shall be responsible to the Trust for the actions of the Agent if and only to
the extent the Custodian shall have recovered from the Agent for any damages
caused the Trust by the Agent.
9. RESPONSIBILITY OF CUSTODIAN.
9.1 LIMITATIONS ON LIABILITY OF CUSTODIAN. Except as otherwise provided
herein, the Custodian shall not be liable for any loss or damage, including
counsel fees, resulting from its action or omission to act or otherwise, except
for any such loss or damage arising out of its negligence or willful misconduct.
The Trust, on behalf of the Fund and only from assets of the Fund (or insurance
purchased by the Trust with respect to its liabilities on behalf of the Fund
hereunder), shall defend, indemnify and hold harmless the Custodian and its
directors, officers, employees and agents with respect to any loss, claim,
liability or cost (including reasonable attorneys' fees) arising or alleged to
arise from or relating to the Trust's duties hereunder or any other action or
inaction of the Trust or its Trustees, officers, employees or agents, except
such as may arise from the negligent action, negligent omission, willful
misconduct or any breach of this Agreement by the Custodian, its directors,
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officers, employees or agents, provided, however, the Trust shall not in any
event be liable for any special, incidental, consequential, or punitive damages.
The Custodian shall defend, indemnify and hold harmless the Trust and its
trustees, officers, employees or agents with respect to any loss, claim,
liability or cost (including reasonable attorneys' fees) arising or alleged to
arise from actual losses, claims, damages, costs, expenses and liabilities
asserted against, imposed upon or incurred by the Trust resulting from any
negligent action taken or omission or willful misconduct by the Custodian in
accordance with the terms of this Agreement, or a material breach of any of the
Custodian's duties as specifically set forth in this Agreement, except such as
may arise from the negligent action, omission or willful misconduct of the
Trust, its trustees, officers, employees, or agents, provided, further, however,
that Custodian shall not in any event be liable for any any special, incidental,
consequential, or punitive damages. The Custodian may, with respect to questions
of law apply for and obtain the advice and opinion of counsel to the Trust at
the expense of the Fund, or of its own counsel at its own expense, and shall be
fully protected with respect to anything done or omitted by it in good faith in
conformity with the advice or opinion of counsel to the Trust, and shall be
similarly protected with respect to anything done or omitted by it in good faith
in conformity with advice or opinion of its counsel, unless counsel to the Fund
shall, within a reasonable time after being notified of legal advice received by
the Custodian, have a differing interpretation of such question of law. The
Custodian shall be liable to the Trust for any proximate loss or damage
resulting from the use of the Book-Entry System or any Depository arising by
reason of any negligence, misfeasance or misconduct on the part of the Custodian
or any of its employees, agents, nominees or Sub-Custodians, but not for any
special, incidental, consequential, or punitive damages; provided, however, that
nothing contained herein shall preclude recovery by the Trust, on behalf of the
Fund, of principal and of interest to the date of recovery on Investments
incorrectly omitted from the Fund's account or penalties imposed on the Trust,
in connection with the Fund, for any failures to deliver Securities. In any case
in which one party hereto may be asked to indemnify the other or hold the other
harmless, the party from whom indemnification is sought (the "Indemnifying
Party") shall be advised of all pertinent facts concerning the situation in
question, and the party claiming a right to indemnification (the "Indemnified
Party") will use reasonable care to identify and notify the Indemnifying Party
promptly concerning any situation which presents or appears to present a claim
for indemnification against the Indemnifying Party. The Indemnifying Party shall
have the option to defend the Indemnified Party against any claim which may be
the subject of the indemnification, and in the event the Indemnifying Party so
elects, such defense shall be conducted by counsel chosen by the Indemnifying
Party and satisfactory to the Indemnified Party and the Indemnifying Party will
so notify the Indemnified Party and thereupon such Indemnifying Party shall take
over the complete defense of the claim and the Indemnifying Party shall sustain
no further legal or other expenses in such situation for which indemnification
has been sought under this paragraph, except the reasonable expenses of any
additional counsel retained by the Indemnified Party. In no case shall any party
claiming the right to indemnification confess any claim or make any compromise
in any case in which the other party has been asked to indemnify such party
(unless such confession or compromise is made with such other party's prior
written consent). The provisions of this Section 9.1 shall survive the
termination of this Agreement.
9.2 SPECIFIC ACTIONS NOT REQUIRED BY CUSTODIAN. Without limiting the
generality of the foregoing, the Custodian, acting in the capacity of custodian
hereunder, shall be under no obligation to inquire into, and shall not be liable
for:
1. The validity of the issue of any Securities purchased by or
for the account of Trust, the legality of the purchase
thereof, or the propriety of the amount paid therefor;
2. The legality of the sale of any Securities by or for the
account of Trust, or the propriety of the amount for which the
same are sold;
3. The legality of the issue or sale of any Shares of any Fund,
or the sufficiency of the amount to be received therefor;
4. The legality of the redemption of any Shares of any Fund, or
the propriety of the amount to be paid therefor;
5. The legality of the declaration or payment of any dividend by
Trust in respect of Shares of any Fund;
6. The legality of any borrowing by Trust or any Fund, using
Securities as collateral;
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7. Whether the Trust is in compliance with the 1940 Act or the
regulations thereunder; the provisions of the Trust's
declaration of trust, certificate of incorporation, by-laws,
or other constitutive document; Applicable Law; or any
directives by the trustees, directors or shareholders of the
Trust, or its investment objectives and policies as then in
effect.
9.3 LIMITATIONS OF PERFORMANCE. The Custodian shall not be responsible
under this Agreement for any failure to perform its duties, and shall not be
liable hereunder for any loss, claim, or damage in association with such failure
to perform, for or in consequence of the following causes:
9.3.1 FORCE MAJEURE. Force Majeure shall mean any circumstance or event
which is beyond the reasonable control of the Custodian, a
Sub-custodian or any agent of the Custodian or a Sub-custodian and
which adversely affects the performance by the Custodian of its
obligations hereunder, by the Sub-custodian of its obligations under
its sub-custody agreement or by any other agent of the Custodian or the
Sub-custodian, including any event caused by, arising out of or
involving (a) an act of God, (b) accident, fire, water or wind damage
or explosion, (c) any computer, system or other equipment failure or
malfunction caused by any computer virus or the malfunction or failure
of any communications medium, (d) any interruption of the power supply
or other utility service, (e) any strike or other work stoppage,
whether partial or total, (f) any delay or disruption resulting from or
reflecting the occurrence of any Country or Sovereign Risk, (g) any
disruption of, or suspension of trading in, the securities, commodities
or foreign exchange markets, whether or not resulting from or
reflecting the occurrence of any Country or Sovereign Risk, (h) any
encumbrance on the transferability of a currency or a currency position
on the actual settlement date of a foreign exchange transaction,
whether or not resulting from or reflecting the occurrence of any
Country or Sovereign Risk, or (i) any other cause similarly beyond the
reasonable control of the Custodian.
9.3.2 COUNTRY RISK. Country Risk shall mean, with respect to the
acquisition, ownership, settlement or custody of Investments in a
jurisdiction, all risks relating to, or arising in consequence of,
systemic and markets factors affecting the acquisition, payment for or
ownership of Investments including (a) the prevalence of crime and
corruption, (b) the inaccuracy or unreliability of business and
financial information, (c) the instability or volatility of banking and
financial systems, or the absence or inadequacy of an infrastructure to
support such systems, (d) custody and settlement infrastructure of the
market in which such Investments are transacted and held, (e) the acts,
omissions and operation of any Securities Depository, (f) the risk of
the bankruptcy or insolvency of banking agents, counterparties to cash
and securities transactions, registrars or transfer agents, and (g) the
existence of market conditions which prevent the orderly execution or
settlement of transactions or which affect the value of assets.
9.3.3 SOVEREIGN RISK. Sovereign Risk shall mean, in respect of any
jurisdiction, including the United States of America, where an
Investment is acquired or held hereunder or under a sub-custody
agreement, (a) any act of war, terrorism, riot, insurrection or civil
commotion, (b) the imposition of any investment, repatriation or
exchange control restrictions by any Governmental Authority, (c) the
confiscation, expropriation or nationalization of any Investment or
cash deposit by any Governmental Authority, whether de facto or de
jure, (d) any devaluation or revaluation of the currency, (e) the
imposition of taxes, levies or other charges affecting Investments or
cash deposits, (f) any change in the Applicable Law, or (g) any other
economic or political risk incurred or experienced.
9.3.4 FAILURE OF THIRD PARTIES. The failure of any third party
including: (a) any issuer of Investments or Book-entry Agent or other
agent of an issuer; (b) any counterparty with respect to any
Investment, including any issuer of exchange-traded or other futures,
option, derivative or commodities contract; (c) failure of an
investment adviser or other Agent of the Trust; or (d) failure of other
third parties similarly beyond the control or choice of the Custodian.
9.3.5 INFORMATION SOURCES. Reliance by Custodian upon or inaccuracies
in information received from issuers of Investments or agents of such
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issuers, information received from Sub-custodians and from other
commercially reasonable sources provided that the Custodian has relied
upon such information in good faith, or for the failure of any
commercially reasonable information provider.
9.3.6 RELIANCE ON INSTRUCTION. Action by the Custodian or the
Sub-custodian in accordance with an Instruction.
9.3.7 RESTRICTED SECURITIES. The limitations inherent in the rights,
transferability or similar investment characteristics of a given
Investment of the Trust.
9.4 NO DUTY TO COLLECT AMOUNTS DUE FROM DIVIDEND AND TRANSFER AGENT.
The Custodian shall not be under any duty or obligation to take action to effect
collection of any amount due to the Trust from any Dividend and Transfer Agent
of the Trust nor to take any action to effect payment or distribution by any
Dividend and Transfer Agent of the Trust of any amount paid by the Custodian to
any Dividend and Transfer Agent of the Trust in accordance with this Agreement.
9.5 NO ENFORCEMENT ACTIONS. Notwithstanding anything to the contrary in
this Agreement, Custodian shall not be under any duty or obligation to take
action, by legal means or otherwise, to effect collection of any amount, if the
Investment upon which such amount is payable is/are in default, or if payment is
refused after due demand or presentation, unless and until (i) it shall be
directed to take such action by Written Instructions and (ii) it shall be
assured to its satisfaction (including prepayment thereof) of reimbursement of
its costs and expenses in connection with any such action.
9.6 NO DUTY TO SUPERVISE INVESTMENTS. Custodian shall not be under any
duty or obligation to ascertain whether any Investments at any time delivered to
or held by it for the account of the Trust are such as properly may be held by
the Trust under the provisions of the Trust's declaration of trust and the
Trust's By-laws.
9.7 COMPENSATION OF CUSTODIAN. The Custodian shall be entitled to
receive and the Trust agrees to pay to the Custodian, for the Fund's account
from the Fund's assets only, such compensation as shall be determined pursuant
to APPENDIX D attached hereto, or as shall be determined pursuant to amendments
to APPENDIX D as approved by the Custodian and the Trust. The Custodian shall be
entitled to charge against any money held by it for the accounts of the Fund the
amount of any loss, damage, liability or expense, including counsel fees, for
which it shall be entitled to reimbursement under the provisions of this
Agreement as determined by agreement of the Custodian and the Trust or by the
final order of any court or arbitrator having jurisdiction and as to which all
rights of appeal shall have expired. The expenses which the Custodian may charge
against the account of a Fund include, but are not limited to, the expenses of
agents or Sub-Custodians incurred in settling transactions involving the
purchase and sale of Investments of the Fund.
10. REPORTS AND RECORDS.
10. 1. PROVISION OF RECORDS TO TRUST. The Custodian shall:
10.1.1 INTERNAL ACCOUNTING AND CONTROL SYSTEMS. Make available to the
Trust and shall send to the Trust any report received on the systems of
internal accounting control of Custodian or its Agents or
Sub-custodians as the Trust may reasonably request from time to time,
subject, however, to all reasonable security requirements of the
Custodian then applicable to the records of its custody customers
generally.
10.1.2 BOOKS AND RECORDS GENERALLY. Make available to the Trust, its
auditors, agents and employees, upon reasonable request and during
normal business hours of the Custodian, all records maintained by the
Custodian pursuant to its obligations under this Agreement. Without
limiting the generality of the foregoing, the Custodian shall set up
and maintain proper books of account and complete records of all
transactions in the accounts maintained by the Custodian hereunder in
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such manner as will meet the obligations of the Fund under the Act,
with particular attention to Section 31 thereof and Rules 3la-1 and
3la-2 thereunder and those records are the property of the Trust, (ii)
preserve for the periods prescribed by applicable Federal statute or
regulation all records required to be so preserved. All such books and
records shall be available, upon request, for inspection by duly
authorized officers, employees or agents of the Trust and employees of
the SEC.
10.1.3 ASSISTANCE TO TRUST. Take all reasonable action, that the Trust
may from time to time request, to assist the Trust in obtaining
favorable opinions from the Trust's independent accountants, with
respect to the Custodian's activities hereunder, in connection with the
preparation of the Fund's Form N- IA, Form N-SAR, or other annual
reports to the SEC.
10.2 The Trust shall examine all records, however produced or
transmitted, promptly upon receipt thereof and notify the Custodian promptly of
any discrepancy or error therein. Unless the Trust delivers written notice of
any such discrepancy or error within a reasonable time after its receipt
thereof, such records shall be deemed to be true and accurate.
10.3 NO MANAGEMENT OF ASSETS BY CUSTODIAN. The Custodian performs only
the services of a custodian and shall have no responsibility for the management,
investment or reinvestment of the Securities or other assets from time to time
owned by any Fund. The Custodian is not a selling agent for Shares of any Fund
and performance of its duties as custodian shall not be deemed to be a
recommendation to any Fund's depositors or others of Shares of the Fund as an
investment. The Custodian shall have no duties or obligations whatsoever except
such duties and obligations as are specifically set forth in this Agreement, and
no covenant or obligation shall be implied in this Agreement against the
Custodian.
11. MISCELLANEOUS.
11.1 POWERS OF ATTORNEY, ETC. The Trust will promptly execute and
deliver, upon request, such proxies, powers of attorney or other instruments as
may be necessary or desirable for the Custodian to provide, or to cause any
Sub-custodian to provide, custody services under this Agreement.
11.2 ENTIRE AGREEMENT. This Agreement and the exhibits and/or other
schedules attached hereto, including the 17f-5 Delegation Schedule, constitutes
the entire agreement between the Trust and the Custodian and supersedes any
other oral or written agreements heretofore in effect between the Trust and the
Custodian with respect to the subject matter hereof. No provision of this
Agreement may be amended or terminated except by an instrument in writing signed
by the party against which enforcement of the amendment or termination is
sought, provided, however, that an Written Instruction shall, whether or not
such Written Instruction shall constitute a waiver, amendment or modification
for purposes hereof, be deemed to have been accepted by the Custodian when it
commences actions pursuant thereto or in accordance therewith.
11.3 BINDING EFFECT; ASSIGNMENT. 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
Trust or by the Custodian, and no attempted assignment by the Trust or the
Custodian shall be effective without the written consent of the other party
hereto. Each party agrees that only the parties to this agreement and /or their
successors in interest shall have a right to enforce the terms of this
Agreement. Accordingly, no client of the Trust or other third party shall have
any rights under this Agreement and such rights are explicitly disclaimed by the
parties.
11.4 GOVERNING LAW, JURISDICTION AND VENUE; JURY WAIVER. THIS AGREEMENT
SHALL BE CONSTRUED IN ACCORDANCE WITH, AND BE GOVERNED BY THE LAWS OF, THE STATE
OF OHIO, WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAW OF SUCH STATE. THE
PARTIES HERETO IRREVOCABLY CONSENT TO THE EXCLUSIVE JURISDICTION OF THE COURTS
OF THE STATE OF OHIO AND THE COURTS OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT AND EACH PARTY BY ITS EXECUTION OF THIS AGREEMENT IRREVOCABLY (I)
SUBMITS TO SUCH JURISDICTION AND (II) CONSENTS TO THE SERVICE OF ANY PROCESS OR
PLEADINGS BY FIRST CLASS U.S. MAIL, POSTAGE PREPAID AND RETURN RECEIPT
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REQUESTED, OR BY ANY OTHER MEANS FORM TIME TO TIME AUTHORIZED BY THE LAWS OF
SUCH JURISDICTION. FURTHERMORE, EACH PARTY HERETO IRREVOCABLY WAIVES ANY RIGHT
THAT IT MAY HAVE TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
11.5 NOTICES. Notices and other writings contemplated by this
Agreement, other than Instructions, shall be delivered (a) by hand, (b) by first
class registered or certified mail, postage prepaid, return receipt requested,
(c) by a nationally recognized overnight courier, delivery charge prepaid, or
(d) by facsimile transmission, provided that any notice or other writing sent by
facsimile transmission shall also be mailed, postage prepaid, or by overnight
courier delivery charge prepaid, to the party to whom such notice is addressed.
All such notices shall be addressed, as follows:
If to Trust:
Infinity Capital Group, Inc.
00 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
-----------------------
Attn: Xxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile (000) 000-0000
If to Custodian:
The Huntington National Bank.
7 Easton Oval EA4E70
Xxxxxxxx, XX 00000
Attn: Xxx Xxxx
Telephone: 000-000-0000
Facsimile 000-000-0000
or such other address as the Trust or Custodian may have designated in writing
to the other. Such Notice shall be deemed received when delivered if by hand or
by facsimile transmission, on the third business day after mailing if sent by
registered or certified mail, and on the next business day if sent by overnight
courier.
11.6 HEADINGS. The headings of paragraphs in this Agreement are for
convenience of reference only and shall not affect the meaning or construction
of any provision of this Agreement.
11.7 SEVERABILITY. In the event any provision of this Agreement is
determined to be void or unenforceable, such determination shall not affect the
remainder of this Agreement, which shall continue to be in force.
11.8 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but each such
counterpart shall, together, constitute only one instrument.. This Agreement
shall become effective when one or more counterparts have been signed and
delivered by the Trust and the Custodian. A photocopy or telefax of the signed
signature page to the Agreement shall be acceptable evidence of the existence of
the Agreement and the Custodian shall be protected in relying on such photocopy
or telefax until the Custodian has received the original signed copy of the
Agreement.
-20-
11.9 CONFIDENTIALITY. The parties hereto agree that each shall treat
confidentially the terms and conditions of this Agreement and all information
provided by each party to the other regarding its business and operations. All
confidential information provided by a party hereto shall be used by any other
party hereto solely for the purpose of rendering or obtaining services pursuant
to this Agreement and, except as may be required in carrying out this Agreement,
shall not be disclosed to any third party without the prior consent of such
providing party. The foregoing shall not be applicable to any information that
is publicly available when provided or thereafter becomes publicly available
other than through a breach of this Agreement, or that is required to be
disclosed by or to any bank examiner of the Custodian or any Sub-custodian, any
regulatory authority, any auditor of the parties hereto, or by judicial or
administrative process or otherwise by Applicable Law.
11.10 TAPE-RECORDING. Trust authorizes the Custodian to tape record any
and all telephonic or other oral instructions given to the Custodian by or on
behalf of the Trust, including from any Authorized Person. This authorization
will remain in effect until and unless revoked by the Trust in writing. The
Trust, upon request, further agrees to solicit valid written or other consent
from any of its employees with respect to telephone communications to the extent
such consent is required by Applicable Law.
11.11 CUSTODIAN'S CONSENT TO USE OF ITS NAME. Trust shall obtain the
Custodian's written consent prior to the publication and/or dissemination or
distribution, of a Prospectus or any other documents (including advertising
material) specifically mentioning the Custodian (other than merely by name and
address).
11.12 TERMINATION. Either party hereto may terminate this Agreement for
any reason by giving to the other party a notice in writing specifying the date
of such termination, which shall be not less than ninety (90) days after the
date of giving of such notice. If such notice is given by the Trust, it shall be
accompanied by a copy of a resolution of the Board of Trustees of the Trust,
certified by the Secretary of the Trust, electing to terminate this Agreement
and designating a successor custodian or custodians each of which shall be a
bank or trust company having not less than $100,000,000 aggregate capital,
surplus, and undivided profits. In the event such notice is given by the
Custodian, the Trust shall, on or before the termination date, deliver to the
Custodian a copy of a resolution of the Board of Trustees of the Trust,
certified by the Secretary, designating a successor custodian or custodians to
act on behalf of the Trust. In the absence of such designation by the Trust, the
Custodian may designate a successor custodian which shall be a bank or trust
company having not less than $100,000,000 aggregate capital, surplus, and
undivided profits. Upon the date set forth in such notice this Agreement shall
terminate, and the Custodian, provided that it has received a notice of
acceptance by the successor custodian, shall deliver, on that date, directly to
the successor custodian all Securities and monies then owned by the FUND and
held by it as Custodian. Upon termination of this Agreement, the Trust shall pay
to the Custodian on behalf of the Trust such compensation as may be due as of
the date of such termination. The Trust agrees on behalf of the Trust that the
Custodian shall be reimbursed for its reasonable costs in connection with the
termination of this Agreement.
11.13 FAILURE TO DESIGNATE SUCCESSOR CUSTODIAN. If a successor
custodian is not designated by the Trust, or by the Custodian in accordance with
the preceding paragraph, or the designated successor cannot or will not serve,
the Trust shall, upon the delivery by the Custodian to the Trust of all
Securities (other than Securities held in the Book-Entry System which cannot be
delivered to the Trust) and moneys then owned by the Trust, be deemed to be the
custodian for the Trust, 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 Trust, which shall be held by the Custodian in accordance with this
Agreement.
11.14 COMPLIANCE POLICIES AND PROCEDURES. To assist the Custodian in
complying with Rule 38a-1 of the 1940 Act, Trust represents that it has adopted
written policies and procedures reasonably designed to prevent violation of the
federal securities laws in fulfilling its obligations under the Agreement and
that it has in place a compliance program to monitor its compliance with those
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policies and procedures. Trust will upon request provide the Custodian with
information about our compliance program as mutually agreed.
11.15 LIMITATION OF PERSONAL LIABILITY. No recourse under any
obligation of this Agreement or for any claim based thereon shall be had against
any organizer, shareholder, officer, trustee, past, present or future as such,
of the Trust or of any predecessor or successor, either directly or through the
Trust or any such predecessor or successor, whether by virtue of any
constitution, statute or rule of law or equity, or by the enforcement of any
assessment or penalty or otherwise; it being expressly agreed and understood
that this Agreement and the obligations thereunder are enforceable solely
against the assets of the Trust, and that no such personal liability whatever
shall attach to, or is or shall be incurred by, the organizers, shareholders,
officers, or trustees of the Trust or of any predecessor or successor, or any of
them as such, because of the obligations contained in this Agreement or implied
therefrom and that any and all such liability is hereby expressly waived and
released by the Custodian as a condition of, and as a consideration for, the
execution of this Agreement.
BALANCE OF PAGE LEFT BLANK INTENTIONALLY.
----------------------------------------
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed as of the date first above written.
TRUST: Custodian
INFINITY CAPITAL GROUP, INC. THE HUNTINGTON NATIONAL BANK
By: /s/Xxxxxxx X. Xxxxxxx By: /s/ Xxx Xxxx
Name: Xxxxxxx X. Xxxxxxx Name: Xxx Xxxx
Title:President Title: Vice President
Date: 11/27/2009 Date: 11/24/09
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APPENDIX A
AUTHORIZED PERSONS SPECIMEN SIGNATURES
Chairman: Xxxxxxx X. Xxxxxxx /s/ Xxxxxxx X. Xxxxxxx
___________________________________________________
President: Xxxxxxx X. Xxxxxxx /s/ Xxxxxxx X. Xxxxxxx
___________________________________________________
Secretary: ___________________________________________________
Treasurer: ___________________________________________________
Senior Vice
President: ___________________________________________________
Assistant
Secretary: __________________________________________________
Assistant
Treasurer: ___________________________________________________
Adviser Employees: ___________________________________________________
___________________________________________________
Transfer Agent/Fund Accountant
Employees: ___________________________________________________
___________________________________________________
___________________________________________________
___________________________________________________
* Authority restricted; does not include: ______________________________________
-00-
XXXXXXXX X
Series of the Trust
INFINITY CAPITAL GROUP, INC.
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APPENDIX C
AGENTS OF THE CUSTODIAN
The following agents are employed currently by The Huntington National Bank for
securities processing and control.
The Depository Trust Company (New York)
0 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
The Federal Reserve Bank
Cleveland Branch
Xxxxx Brothers Xxxxxxxx & Co.
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
(Sub-custodian for Foreign Investments and certain
non-DTC eligible Investments)
-00-
XXXXXXXX X
(CURRENT SCHEDULE OF CUSTODY FEES)
TRANSACTION FEE:
DTC & Fed Eligible Items $9.00/Transaction
Non-DTC & Fed Eligible Items $22.00/Transaction
Mortgage Backed Securities & Private Placements $20.00/Transaction
Mortgage Backed Securities & Private Placement Payments $5.00/Payment
Options $20.00/Transaction
Repurchase Agreements $9.00/Transaction
Foreign Securities (depending on country) $20-350.00/Transaction*
ADMINISTRATIVE DOMESTIC FEE
First $50 million of Market Value 2.00 Basis Points
On Next $50 million of Market Value 1.75 Basis Points
In Excess of $100 million of Market Value 1.25 Basis Points
Monthly Minimum Fee Per Fund Account $350/Account
WIRE TRANSFER FEE:
Outgoing Wires $15.00/transaction
PHYSICAL CHECK FEE:
Physical Check $5.00/check
FUNDS TRANSFER FEE:
To/From DDA & trust account(s) No Charge
INTERNET ACCESS:
Online access to trust account activity No Charge
STATEMENTS
Standard No Charge
Online No Charge
NOTE: Other fees may be assessed for special handling and miscellaneous
services.
-27-
ADMINISTRATION/ SAFEKEEPING TRANSACTION FEE (US
FEE (IN BASIS POINTS)* DOLLARS)*
Argentina 22 70
Australia 6 55
Austria 7 90
Bahrain 77 205
Xxxxxxxxxx 00 000
Xxxxxxx 6 65
Bermuda 12 105
Xxxxxxxx 00 00
Xxxxxx 00 00
Xxxxxxxx 47 105
Canada 4 28
Xxxxx 00 00
Xxxxx 00 00
Xxxxxxxx 52 000
Xxxxx Xxxx 52 75
Croatia 00 00
Xxxxxx 00 000
Xxxxx Xxxxxxxx 00 00
Xxxxxxx 0 00
Xxxxx 27 65
Estonia 27 85
Euroclear 4.5 20
Xxxxxxx 00 00
Xxxxxx 0 00
Xxxxxxx 4 40
Xxxxx 00 00
Xxxxxx 27 135
Hong Kong 10 00
Xxxxxxx 00 00
Xxxxxxx 00 000
Xxxxx 32 155
Indonesia 14 140
Ireland 6 00
Xxxxxx 00 00
Xxxxx 0 00
Xxxxx 6 23
-28-
ADMINISTRATION/ SAFEKEEPING TRANSACTION FEE (US
FEE (IN BASIS POINTS)* DOLLARS)*
Jordan 52 150
Xxxxxxxxxx 00 000
Xxxxx 00 00
Xxxxxx 00 000
Xxxxxxx 00 000
Xxxxxxxxx 00 000
Xxxxxxxxxx 00 00
Xxxxxxxx 00 000
Xxxxx 00 000
Mauritius 62 205
Mexico 14 30
Morocco 52 120
Namibia 47 75
Netherlands 7 25
New Zealand 6 85
Nigeria 42 00
Xxxxxx 0 00
Xxxx 00 000
Xxxxxxxx 62 155
Palestine 62 205
Xxxx 00 000
Xxxxxxxxxxx 14 000
Xxxxxx 00 000
Xxxxxxxx 32 000
Xxxxx 00 000
Xxxxxxx 52 155
Russia 37 155
Singapore 10 95
Xxxxxxxx 00 000
Xxxxxxxx 52 000
Xxxxx Xxxxxx 6 50
South Korea 12 00
Xxxxx 0 00
Xxx Xxxxx 27 75
Swaziland 47 75
Sweden 6 65
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ADMINISTRATION/ SAFEKEEPING TRANSACTION FEE (US
FEE (IN BASIS POINTS)* DOLLARS)*
Switzerland 6 100
Xxxxxx 00 000
Xxxxxxxx 8 55
Trinidad 52 000
Xxxxxx 00 00
Xxxxxxx 00 000
Xxxxxxx 47 305
XXX 00 000
Xxxxxx Xxxxxxx 0 00
Xxxxxxx 00 00
Xxxxxxxxx 00 000
Xxxxxxx 00 000
Xxxxxx 00 00
Xxxxxxxx 00 00
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*OTHER SETTLEMENT CHARGES:
FRB $10.00/Transaction
Mutual Fund Settlement (Domestic) $35.00/Transaction
Short Term Instruments $10.00/Transaction
Time Deposits $10.00/Transaction
Derivatives (Xxxxxx, Futures, Forwards, Swaps) $30.00/Transaction
Repurchase Agreements $10.00/Transaction
Commercial Paper $10.00/Transaction
Vault Transfer (Domestic) $6.00/Transaction
Physical $20.00/Transaction
Manual Trade Surcharge $30.00/Transaction
Repaired Trade Surcharge $10.00/Transaction
Cancels $10.00/Transaction
Proxy Announcement - Non U.S. $12.00/Transaction
Proxy Vote - Non U.S. $12.00/Transaction
SWIFT message $1.00/Message
WIRES AND PAYMENTS CHARGES:
U.S. Wires $10.00/Transaction
Book Transfers $6.00/Transaction
Non - U.S. Wire $30.00/Transaction
FX - 3rd Party $40.00/Transaction
Cashiers Check $25.00/Transaction
MISCELLANEOUS OTHER CHARGES:
Restricted Securities Processing $150
o Please note that there is a segregated account charge of
$5,000 annual through BBH. This is broken down monthly for a
total of $416.67/month additional.
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XXXXXXXX X
17F-5 DELEGATION SCHEDULE
By its execution of this Delegation Schedule dated as of November 24, 2008,
between Infinity Capital Group, Inc. (THE "TRUST"), a a business trust formed
under the laws of the State of Maryland acting on behalf of the management
investment companies each of whom is registered with the Securities and Exchange
Commission (the COMMISSION) under the Investment Company Act of 1940, as amended
(the 0000 XXX) and listed on Appendix B- of the Custody Agreement (each a "Fund"
and collectively the "Funds"), the Trust hereby appoints THE HUNTINGTON NATIONAL
BANK (THE "DELEGATE"), a national bank organized under the laws of the United
States, as its delegate to perform certain functions with respect to the custody
of the Funds' Assets outside the United States.
WHEREAS the Trust at the direction of each Fund, has appointed the
Delegate as custodian "Custodian" of each Fund's Assets pursuant to the "Custody
Agreement_ between the Trust and the Delegate dated November 24, 2009;
WHEREAS a Fund may, from time to time, determine to invest and maintain
some or all of the Fund's Assets outside of the United States;
WHEREAS the Trust at the direction of each Fund wishes to delegate to
the Delegate certain functions with respect to the custody of Fund's Assets
outside the United States;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the Trust on behalf of the Funds and the Delegate agree as
follows:
1. MAINTENANCE OF FUND'S ASSETS ABROAD. The Trust, acting on behalf of
the Fund's, hereby instructs the Delegate pursuant to the terms of the Custody
Agreement to place and maintain the Fund's Assets in countries outside the
United States in accordance with Instructions received from the Trust. Such
instruction shall constitute an Instruction under the terms of the Custody
Agreement. The Trust acknowledges that (a) the Delegate shall perform services
hereunder only with respect to the countries where it accepts delegation as
foreign custody manager; (b) depending on conditions in the particular country,
advance notice may be required before the Delegate shall be able to perform its
duties hereunder in or with respect to such country (such advance notice to be
reasonable in light of the specific facts and circumstances attendant to
performance of duties in such country); and (c) nothing in this Delegation
Schedule shall require the Delegate to provide delegated or custodial services
in any country, and there may from time to time be countries as to which the
Delegate determines it will not provide delegation services.
2. DELEGATION. Pursuant to the provisions of Rule 17f-5 under the 1940
Act as amended, the Trust on behalf of the Funds hereby delegates to the
Delegate, and the Delegate hereby accepts such delegation and agrees to perform
only those duties set forth in this Delegation Schedule concerning the
safekeeping of the Fund's Assets in each of the countries as to which it acts as
delegate. The Delegate is hereby authorized to take such actions on behalf of or
in the name of the Trust, on behalf of the Funds, as are reasonably required to
discharge its duties under this Delegation Schedule, including, without
limitation, to cause the Fund's Assets to be placed with a particular Eligible
Foreign Custodian in accordance herewith. The Trust confirms to the Delegate
that the Trust on behalf of the Funds has considered the Sovereign Risk and
prevailing Country Risk as part of its continuing investment decision process,
including such factors as may be reasonably related to the systemic risk of
maintaining the Fund's Assets in a particular country, including, but not
limited to, financial infrastructure, prevailing custody and settlement systems
and practices (including the use of any Securities Depository in the context of
information provided by the Delegate in the performance of its duties as
required under Rule 17f-7 and the terms of the Custody Agreement governing such
duties), and the laws relating to the safekeeping and recovery of the Fund's
Assets held in custody pursuant to the terms of the Custody Agreement. Trust
acknowledges that Delegate has appointed Xxxxx Brothers Xxxxxxxx & Co. as its
sub-custodian and sub-foreign custody manager for purposes of carrying out some
or all of the duties and obligations of Delegate under this Delegation Schedule,
provided however, that such appointment shall not relieve the Delegate of its
obligations under this Delegation Schedule.
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3. SELECTION OF ELIGIBLE FOREIGN CUSTODIAN AND CONTRACT ADMINISTRATION.
The Delegate shall perform the following duties with respect to the selection of
Eligible Foreign Custodians and administration of certain contracts governing
the Fund's foreign custodial arrangements:
(a) SELECTION OF ELIGIBLE FOREIGN CUSTODIAN. The Delegate shall place
and maintain the Fund's Assets with an Eligible Foreign Custodian,
provided that the Delegate shall have determined that the Fund's Assets
will be subject to reasonable care based on the standards applicable to
custodians in the relevant market after considering factors relevant to
the safekeeping of such assets including without limitation:
(i) The Eligible Foreign Custodian's practices, procedures,
and internal controls, including, but not limited to, the
physical protections available for certificated securities (if
applicable), the controls and procedures for dealing with any
Securities Depository, the method of keeping custodial
records, and the security and data protection practices;
(ii) Whether the Eligible Foreign Custodian has the requisite
financial strength to provide reasonable care for the Fund's
Assets;
(iii) The Eligible Foreign Custodian's general reputation and
standing; and
(iv) Whether the Fund will have jurisdiction over and be able
to enforce judgments against the Eligible Foreign Custodian,
such as by virtue of the existence of any offices of such
Eligible Foreign Custodian in the United States or such
Eligible Foreign Custodian's appointment of an agent for
service of process in the United States or consent to
jurisdiction in the United States.
The Delegate shall be required to make the foregoing determination to
the best of its knowledge and belief based only on information
reasonably available to it.
(b) CONTRACT ADMINISTRATION. The Delegate shall cause that the
foreign custody arrangements with an Eligible Foreign
Custodian shall be governed by a written contract that the
Delegate has determined will provide reasonable care for Fund
assets based on the standards applicable to custodians in the
relevant market. Each such contract shall, except as set forth
in the last paragraph of this subsection (b), include
provisions that provide:
(i) For indemnification or insurance arrangements (or any
combination of the foregoing) such that the Fund will be
adequately protected against the risk of loss of assets held
in accordance with such contract;
(ii) That the Fund's Assets will not be subject to any right,
charge, security interest, lien or claim of any kind in favor
of the Eligible Foreign Custodian or its creditors except a
claim of payment for their safe custody or administration or,
in the case of cash deposits, liens or rights in favor of
creditors of such Custodian arising under bankruptcy,
insolvency or similar laws;
(iii) That beneficial ownership of the Fund's Assets will be
freely transferable without the payment of money or value
other than for safe custody or administration;
(iv) That adequate records will be maintained identifying the
Fund's Assets as belonging to the Fund or as being held by a
third party for the benefit of the Fund;
(v) That the Fund's independent public accountants will be
given access to those records described in (iv) above or
confirmation of the contents of such records; and
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(vi) That the Delegate will receive sufficient and timely
periodic reports with respect to the safekeeping of the Fund's
Assets, including, but not limited to, notification of any
transfer to or from the Fund's account or a third party
account containing the Fund's Assets.
Such contract may contain, in lieu of any or all of the provisions
specified in this Section 3(b), such other provisions that the Delegate
determines will provide, in their entirety, the same or a greater level
of care and protection for the Fund's Assets as the specified
provisions, in their entirety.
(c) LIMITATION TO DELEGATED SELECTION. Notwithstanding anything in this
Delegation Schedule to the contrary, the duties under this Section 3
shall apply only to Eligible Foreign Custodians selected by the
Delegate and shall not apply to Securities Depositories or to any
Eligible Foreign Custodian that the Delegate is directed to use
pursuant to Section 7 of this Delegation Schedule.
4. MONITORING. The Delegate shall establish a system to monitor at
reasonable intervals (but at least annually) the appropriateness of maintaining
the Fund's Assets with each Eligible Foreign Custodian that has been selected by
the Delegate pursuant to Section 3 of this Delegation Schedule. The Delegate
shall monitor the continuing appropriateness of placement of the Fund's Assets
in accordance with the criteria established under Section 3(a) of this
Delegation Schedule. The Delegate shall monitor the continuing appropriateness
of the contract governing the Fund's arrangements in accordance with the
criteria established under Section 3(b) of this Delegation Schedule.
5. REPORTING. At least annually and more frequently as mutually agreed
between the parties, the Delegate shall provide to the Board written reports
specifying placement of the Fund's Assets with each Eligible Foreign Custodian
selected by the Delegate pursuant to Section 3 of this Delegation Schedule and
shall promptly report on any material changes to such foreign custody
arrangements. Delegate will prepare such a report with respect to any Eligible
Foreign Custodian that the Delegate has been instructed to use pursuant to
Section 7 of this Delegation Schedule only to the extent specifically agreed
with respect to the particular situation.
6. WITHDRAWAL OF FUND'S ASSETS. If the Delegate determines that an
arrangement with a specific Eligible Foreign Custodian selected by the Delegate
under Section 3 of this Delegation Schedule no longer meets the requirements of
said Section, Delegate shall withdraw the Fund's Assets from the non-complying
arrangement as soon as reasonably practicable; provided, however, that if in the
reasonable judgment of the Delegate, such withdrawal would require liquidation
of any of the Fund's Assets or would materially impair the liquidity, value or
other investment characteristics of the Fund's Assets, it shall be the duty of
the Delegate to provide information regarding the particular circumstances and
to act only in accordance with Instructions of the Trust with respect to such
liquidation or other withdrawal.
7. DIRECTION AS TO ELIGIBLE FOREIGN CUSTODIAN. Notwithstanding this
Delegation Schedule, the Trust may direct the Delegate to place and maintain the
Fund's Assets with a particular Eligible Foreign Custodian, including without
limitation with respect to investment in countries as to which the Delegate will
not provide delegation services. In such event, the Delegate shall be entitled
to rely on any such instruction as an Instruction under the terms of the Custody
Agreement and shall have no duties under this Delegation Schedule with respect
to such arrangement save those that it may undertake specifically in writing
with respect to each particular instance.
8. STANDARD OF CARE. In carrying out its duties under this Delegation
Schedule, the Delegate agrees to exercise reasonable care, prudence and
diligence such as a person having responsibility for safekeeping the Fund's
Assets would exercise.
9. REPRESENTATIONS. The Trust hereby represents and warrants that it is
a U.S. Trust and that this Delegation Schedule has been duly authorized,
executed and delivered by the Delegate and is a legal, valid and binding
agreement of the Delegate. The Trust hereby represents and warrants that each
Board of Trustees has determined that it is reasonable to rely on the Delegate
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to perform the delegated responsibilities provided for herein and that this
Delegation Schedule has been duly authorized, executed and delivered by the
Trust and is a legal, valid and binding agreement of the Trust.
10. EFFECTIVENESS; TERMINATION. This Delegation Schedule shall be
effective as of the date on which this Delegation Schedule shall have been
accepted by the Delegate, as indicated by the date set forth below the
Delegate's signature. This Delegation Schedule may be terminated at any time,
without penalty, by written notice from the terminating party to the
non-terminating party. Such termination shall be effective on the 30th calendar
day following the date on which the non-terminating party shall receive the
foregoing notice. Notwithstanding the foregoing, this Delegation Schedule shall
be deemed to have been terminated concurrently with the termination of the
Custody Agreement.
11. NOTICES. Notices and other communications under this Delegation
Schedule are to be made in accordance with the arrangements designated for such
purpose under the Custody Agreement unless otherwise indicated in a writing
referencing this Delegation Schedule and executed by both parties.
12. DEFINITIONS. Capitalized terms not otherwise defined in this
Delegation Schedule have the following meanings:
a. Country Risk - shall have the meaning set forth in Section 9.3.2 of
the Custody Agreement.
b. ELIGIBLE FOREIGN CUSTODIAN - shall have the meaning set forth in
Rule 17f-5(a)(1) of the 1940 Act and shall also include a U.S. Bank.
c. FUND'S ASSETS - shall mean any of the Fund's investments (including
foreign currencies) for which the primary market is outside the United
States, and such cash and cash equivalents as are reasonably necessary
to effect the Fund's transactions in such investments.
d. INSTRUCTIONS - shall have the meaning set forth in the Custody
Agreement.
e. SECURITIES DEPOSITORY - shall have the meaning set forth in Rule
17f-7 of the 1940 Act.
f. SOVEREIGN RISK - shall have the meaning set forth in Section 9.3.3
of the Custody Agreement.
g . U.S. BANK - shall mean a bank which qualifies to serve as a
custodian of assets of investment companies under Section 17(f) of the
1940 Act.
13. GOVERNING LAW AND JURISDICTION. This Delegation Schedule shall be
construed in accordance with the laws of the State of New Ohio without reference
to the conflict of law provisions thereof. The parties hereby submit to the
exclusive jurisdiction of the Federal courts sitting in the State of Ohio or the
or of the state courts of such State.
14. FEES. Delegate shall perform its functions under this Delegation
Schedule for the compensation determined under the Custody Agreement.
15. INTEGRATION. This Delegation Schedule sets forth all of the
Delegate's duties with respect to the selection and monitoring of Eligible
Foreign Custodians, the administration of contracts with Eligible Foreign
Custodians, the withdrawal of assets from Eligible Foreign Custodians and the
issuance of reports in connection with such duties. The terms of the Custody
Agreement shall apply generally as to matters not expressly covered in this
Delegation Schedule, including dealings with the Eligible Foreign Custodians in
the course of discharge of the Delegate's obligations under the Custody
Agreement.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Delegation Schedule to be duly executed as of the date first above written.
The undersigned acknowledges that (I/we) have received a copy of this document.
INFINITY CAPITAL GROUP, INC. THE HUNTINGTON NATIONAL BANK
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxx Xxxx - 11/24/2009
Name: Xxxxxxx X. Xxxxxxx Name: Xxx Xxxx
Title:President Title: Vice President
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