CUSTODIAN SERVICES AGREEMENT
This Agreement is made as of November 7, 1994 by and between
NATIONAL CITY BANK (the "Custodian") and NCC FUNDS, a Massachusetts business
trust (the "Fund").
The Fund is registered as an open-end management investment company
under the Investment Company Act of 1940, as amended (the "1940 Act"). The Fund
wishes to retain the Custodian to provide custodian services to each of its
investment portfolios, as listed on Exhibit A attached hereto and as such
Exhibit A may be amended from time to time (the "Portfolios"), and the Custodian
wishes to furnish custodian services, either directly or though an affiliate or
affiliates, as more fully described herein.
In consideration of the promises and mutual covenants herein
contained, the parties agree as follows:
1. DEFINITIONS.
(a) "AUTHORIZED PERSON" shall mean any officer of the Fund
and any other person, who is duly authorized by the Fund's Board of Trustees, to
give Oral and Written Instructions on behalf of the Fund. Such persons are
listed in the Certificate attached hereto as the Authorized Persons Appendix as
such appendix may be amended in writing by the Fund's Board of Trustees from
time to time.
(b) "BOOK-ENTRY SYSTEM" shall mean Federal Reserve Treasury
book-entry system for United States and federal agency securities, its successor
or successors, and its nominee or nominees and any book-entry system maintained
by an exchange registered with the SEC under the 1934 Act.
(c) "CFTC" shall mean the Commodities Futures Trading
Commission.
(d) "ORAL INSTRUCTIONS" shall mean oral instructions
received by the Custodian from an Authorized Person or from a person reasonably
believed by the Custodian to be an Authorized Person.
(e) "CUSTODIAN" shall mean National City Bank or a
subsidiary or affiliate of National City Bank.
(f) "SEC" shall mean the Securities and Exchange Commission.
(g) "SECURITIES AND COMMODITIES LAWS" shall mean the
Securities Act of 1933, as amended (the "1933 Act"), the Securities Exchange Act
of 1934, as amended (the
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"1934 Act"), the 1940 Act, and the Commodities Exchange Act, as amended (the
"CEA").
(h) "SHARES" shall mean the units of beneficial interest of
the Fund.
(i) "PROPERTY" shall mean:
(i) any and all securities and other investment items
which the Fund may from time to time deposit, or
cause to be deposited, with the Custodian or which
the Custodian may from time to time hold for any
Portfolio;
(ii) all income in respect of any of such securities or
other investment items;
(iii) all proceeds of the sale of any of such securities
or investment items; and
(iv) all proceeds of the sale of securities issued by
the Fund, which are received by the Custodian from
time to time, from or on behalf of the Fund.
(j) "WRITTEN INSTRUCTIONS" shall mean written instructions
signed by one Authorized Person and received by the Custodian. The instructions
may be delivered by hand, mail, tested telegram, cable, telex or facsimile
sending device.
2. APPOINTMENT. The Fund hereby appoints the Custodian to provide
custodian services to each of the Portfolios, and the Custodian accepts such
appointment and agrees to furnish such services.
3. DELIVERY OF DOCUMENTS. The Fund has provided or, where
applicable, will provide the Custodian with the following:
(a) certified or authenticated copies of the resolutions of
the Fund's Board of Trustees, approving the appointment
of the Custodian or its affiliates to provide services;
(b) a copy of the Fund's most recent effective registration
statement;
(c) a copy of each Portfolio's advisory agreement or
agreements;
(d) a copy of each Portfolio's distribution agreement or
agreements;
(e) a copy of each Portfolio's transfer agency agreement or
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agreements;
(f) copies of any shareholder servicing agreements made in
respect of the Fund or any Portfolio; and
(g) certified or authenticated copies of any and all
amendments or supplements to the foregoing.
4. COMPLIANCE WITH GOVERNMENT RULES AND REGULATIONS. The
Custodian undertakes to comply with all applicable requirements of the 1933 Act,
the 1934 Act, the 1940 Act, and the CEA, and any laws, rules and regulations of
governmental authorities having jurisdiction with respect to all duties to be
performed by the Custodian hereunder. Except as specifically set forth herein,
the Custodian assumes no responsibility for such compliance by the Fund.
5. INSTRUCTIONS. Unless otherwise provided in this Agreement, the
Custodian shall act only upon Oral and Written Instructions. The Custodian shall
be entitled to rely upon any Oral and Written Instructions it receives from an
Authorized Person (or from a person reasonably believed by the Custodian to be
an Authorized Person) pursuant to this Agreement. The Custodian may assume that
any Oral or Written Instructions received hereunder are not in any way
inconsistent with the provisions of organizational documents of the Fund or of
any vote, resolution or proceeding of the Fund's Board of Trustees or of the
Fund's shareholders.
The Fund agrees to forward to the Custodian Written Instructions
confirming Oral Instructions so that the Custodian receives the Written
Instructions by the close of business on the same day that such Oral
Instructions are received. The fact that such confirming Written Instructions
are not received by the Custodian shall in no way invalidate the transactions or
enforceability of the transactions authorized by the Oral Instructions.
The Fund further agrees that the Custodian shall incur no liability
to the Fund or any Portfolio in acting upon Oral or Written Instructions
provided such instructions reasonably appear to have been received from an
Authorized Person.
6. RIGHT TO RECEIVE ADVICE.
(a) ADVICE OF THE FUND. If the Custodian is in doubt as to
any action it should or should not take, the Custodian may request directions or
advice, including Oral or Written Instructions, from the Fund.
(b) ADVICE OF COUNSEL. If the Custodian shall be in doubt as
to any questions of law pertaining to any action it should or should not take,
the Custodian may request advice at its own cost from such counsel of its own
choosing (who may be counsel for the Fund, the Fund's adviser or the Custodian,
at the option of the Custodian).
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(c) CONFLICTING ADVICE. In the event of a conflict between
directions, advice or Oral or Written Instructions the Custodian receives from
the Fund, and the advice it receives from counsel, the Custodian shall be
entitled to rely upon and follow the advice of counsel.
(d) PROTECTION OF THE CUSTODIAN. The Custodian shall be
protected in any action it takes or does not take in reliance upon directions,
advice or Oral or Written Instructions it receives from the Fund or from counsel
and which the Custodian believes, in good faith, to be consistent with those
directions, advice or Oral or Written Instructions.
Nothing in this paragraph shall be construed so as to impose an
obligation upon the Custodian (i) to seek such directions, advice or Oral or
Written Instructions, or (ii) to act in accordance with such directions, advice
or Oral or Written Instructions unless, under the terms of other provisions of
this Agreement, the same is a condition of the Custodian's properly taking or
not taking such action.
7. RECORDS. The books and records pertaining to the Fund and the
Portfolios, which are in the possession of the Custodian, shall be the property
of the Fund. Such books and records shall be prepared and maintained as required
by the 1940 Act and other applicable securities laws, rules and regulations. The
Fund, or the Fund's authorized representatives, shall have access to such books
and records at all times during the Custodian's normal business hours. Upon the
reasonable request of the Fund, copies of any such books and records shall be
provided by the Custodian to the Fund or to an authorized representative of the
Fund, at the Fund's expense.
8. CONFIDENTIALITY. The Custodian agrees to keep confidential all
records of the Fund and the Portfolios and information relative to the Fund, the
Portfolios and the shareholders (past, present and potential), unless the
release of such records or information is otherwise consented to, in writing, by
the Fund. The Fund further agrees that, should the Custodian be required to
provide such information or records to duly constituted authorities (who may
institute civil or criminal contempt proceedings for failure to comply), the
Custodian shall not be required to seek the Fund's consent prior to disclosing
such information; provided that the Custodian gives the Fund prior written
notice of the provision of such information and records.
9. COOPERATION WITH ACCOUNTANTS. The Custodian shall cooperate
with the Fund's independent public accountants and shall take all reasonable
action in the performance of its obligations under this Agreement to ensure that
the necessary information is made available to such accountants for the
expression of their opinion, as required by the Fund.
10. DISASTER RECOVERY. The Custodian shall enter into and shall
maintain in effect with appropriate parties one or more agreements making
reasonable provision for emergency use of electronic data processing equipment
to the extent appropriate equipment is
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available. In the event of equipment failures, the Custodian shall, at no
additional expense to the Fund, take reasonable steps to minimize service
interruptions but shall have no liability with respect thereto unless such
failures result from the Custodian's own willful misfeasance, bad faith, gross
negligence, negligence or reckless disregard of its duties and obligations under
this Agreement.
11. COMPENSATION. As compensation for custody services rendered by
the Custodian during the term of this Agreement, the Fund will pay to the
Custodian a fee or fees as may be agreed to in writing from time to time by the
Fund and the Custodian.
12. INDEMNIFICATION. The Fund, on behalf of each of the
Portfolios, agrees to indemnify and hold harmless the Custodian and its nominees
from all taxes, charges, expenses, assessments, claims and liabilities
(including, without limitation, liabilities arising under the 1933 Act, the 1934
Act, the 1940 Act, the CEA, and any state and foreign securities and blue sky
laws, and amendments thereto), and expenses, including (without limitation)
reasonable attorneys' fees and disbursements, arising directly or indirectly
from any action which the Custodian takes or does not take (i) at the request or
on the direction of or in reliance on the advice of the Fund or (ii) upon Oral
or Written Instructions. Neither the Custodian, nor any of its nominees, shall
be indemnified against any liability to the Fund or to its shareholders (or any
expenses incident to such liability) arising out of the Custodian's or its
nominees' own willful misfeasance, bad faith, negligence or reckless disregard
of its duties and obligations under this Agreement.
In the event of any advance of cash for any purpose made by the
Custodian resulting from Oral or Written Instructions of the Fund, or in the
event that the Custodian or its nominee shall incur or be assessed any taxes,
charges, expenses, assessments, claims or liabilities in respect of the Fund or
any Portfolio in connection with the performance of this Agreement, except such
as may arise from its or its nominee's own negligent action, negligent failure
to act or willful misconduct, any Property at any time held for the account of
the relevant Portfolio or the Fund shall be security therefor.
13. RESPONSIBILITY OF THE CUSTODIAN. The Custodian shall be under
no duty to take any action on behalf of the Fund except as specifically set
forth herein or as may be specifically agreed to by the Custodian, in writing.
The Custodian shall be obligated to exercise care and diligence in the
performance of its duties hereunder, to act in good faith and to use its best
efforts, within reasonable limits, in performing Services provided for under
this Agreement. The Custodian shall be responsible for its own or its nominees'
(including without limitation foreign sub-custodians approved by the Fund) own
willful misfeasance, bad faith, negligence or reckless disregard of its duties
and obligations under this Agreement or the Custodian's own negligent failure to
perform its duties under this Agreement. Notwithstanding the foregoing, the
Custodian shall not be responsible for losses beyond its control, provided that
the Custodian has acted in accordance with the standard of care set forth above;
and provided further that the Custodian shall only be responsible for that
portion of losses or damages suffered by the Fund or
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any Portfolio attributable to the negligence of the Custodian.
Without limiting the generality of the foregoing or of any other
provision of this Agreement, the Custodian, in connection with its duties under
this Agreement, shall not be under any duty or obligation to inquire into and
shall not be liable for (a) the validity or invalidity or authority or lack
thereof of any Oral or Written Instruction, notice or other instrument which
conforms to the applicable requirements of this Agreement, and which the
Custodian reasonably believes to be genuine; or (b) delays or errors or loss of
data occurring by reason of circumstances beyond the Custodian's control,
including acts of civil or military authority, national emergencies, fire, flood
or catastrophe, acts of God, insurrection, war, riots or failure of the mails,
transportation, communication or power supply, nor shall the Custodian be under
any duty or obligation to ascertain whether any Property at any time delivered
to or held by the Custodian may properly be held by or for the Fund or any
Portfolio. Notwithstanding the foregoing, the Custodian shall use its best
efforts to mitigate the effects of the events in clause (b) above, although such
efforts shall not impute any liability thereto.
14. DESCRIPTION OF SERVICES.
(a) DELIVERY OF THE PROPERTY. The Fund will deliver or
arrange for delivery to the Custodian, all the property it owns, including cash
received as a result of the distribution of its Shares, during the period that
is set forth in this Agreement. The Custodian will not be responsible for such
property until actual receipt.
(b) RECEIPT AND DISBURSEMENT OF MONEY. The Custodian, acting
upon Written Instructions, shall open and maintain a separate account in the
name of the Fund on behalf of each Portfolio using all cash received from or for
the account of any Portfolio, subject to the terms of this Agreement.
The Custodian shall make cash payments to or from the accounts of a
Portfolio only for:
(i) purchases of securities in the name of a Portfolio
or the Custodian or the Custodian's nominee as
provided in sub-paragraph j and for which the
Custodian has received a copy of the broker's or
dealer's confirmation or payee's invoice, as
appropriate;
(ii) purchase or redemption of Shares of the Fund
delivered to the Custodian;
(iii) payment of, subject to Written Instructions,
interest, dividends, taxes, administration,
accounting, distribution, advisory, management
fees or similar expenses which are
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to be borne by the Fund or any Portfolio;
(iv) payment to, subject to receipt of Written
Instructions, the Fund's transfer agent, as agent
for the shareholders, an amount equal to the
amount of dividends and distributions stated in
the Written Instructions to be distributed in cash
by the transfer agent to shareholders, or, in lieu
of paying the Fund's transfer agent, the Custodian
may arrange for the direct payment of cash
dividends and distributions to shareholders in
accordance with procedures mutually agreed upon
from time to time by and among the Fund, the
Custodian and the Fund's transfer agent;
(v) payments, upon receipt of Written Instructions, in
connection with the conversion, exchange or
surrender of securities owned or subscribed to by
a Portfolio and held by or delivered to the
Custodian;
(vi) payments of the amounts of dividends received with
respect to securities sold short;
(vii) payments made to a sub-custodian pursuant to
provisions in sub-paragraph c of this Paragraph
14; and
(viii) payments, upon Written Instructions made for
other proper Fund purposes.
The Custodian is hereby authorized to endorse and collect all
checks, drafts or other orders for the payment of money received as custodian
for the account of the Fund or any Portfolio.
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(c) RECEIPT OF SECURITIES.
(i) The Custodian shall hold all securities and non
cash property received by it for the account of a
Portfolio in a separate account that physically
segregates such securities from those of any other
Portfolio, persons, firms or corporations. All
such securities and property shall be held or
disposed of only upon Written Instructions of the
Fund pursuant to the terms of this Agreement. The
Custodian shall have no power or authority to
withdraw, deliver, assign, hypothecate, pledge or
otherwise dispose of any such securities or
investment, except upon the express terms of this
Agreement and upon Written Instructions,
accompanied by a certified resolution of the
Fund's Board of Trustees, authorizing the
transaction. In no case may any member of the
Fund's Board of Trustees, or any officer, employee
or agent of the Fund withdraw any securities.
At the Custodian's own expense and for its own
convenience, the Custodian may enter into
sub-custodian agreements with other United States
banks or trust companies to perform duties
described in this sub-paragraph c. Such bank or
trust company shall have an aggregate capital,
surplus and undivided profits, according to its
last published report, of at least one million
dollars ($1,000,000), if it is a subsidiary or
affiliate of the Custodian, or at least twenty
million dollars ($20,000,000) if such bank or
trust company is not a subsidiary or affiliate of
the Custodian. In addition, the Fund may authorize
the Custodian to employ one or more sub-custodians
for the Fund's securities and other assets
maintained outside the United States. Any such
domestic or foreign sub-custodian must be
qualified to act as custodian and agree to comply
with the relevant provisions of the 1940 Act and
applicable rules and regulations. No such
arrangement will be entered into without prior
written approval of the Fund.
The Custodian shall remain responsible for the
performance of all of its duties as described in
this Agreement and shall be liable to the Fund
for, and shall indemnify and hold the Fund and
each Portfolio harmless from, its own acts or
omissions and those of any domestic or foreign
sub-custodian, under the standards of care
provided for herein.
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The Fund may appoint or request the Custodian to
appoint certain sub-custodians with respect to
(including but not limited to) the facilitation of
three party repurchase agreements. In such an
event, the Custodian shall not be responsible for
the performance or actions and omissions of any
such sub-custodian.
(d) TRANSACTIONS REQUIRING INSTRUCTIONS. Upon receipt of
Oral or Written Instructions and not otherwise, the Custodian, directly or
through the use of the Book-Entry System, shall:
(i) deliver any securities held for a Portfolio
against the receipt of payment for the sale of
such securities;
(ii) execute and deliver to such persons as may be
designated in such Oral or Written Instructions,
proxies, consents, authorizations, and any other
instruments whereby the authority of any Portfolio
as owner of any securities may be exercised;
(iii) deliver any securities to the issuer thereof, or
its agent, when such securities are called,
redeemed, retired or otherwise become payable;
provided that, in any such case, the cash or other
consideration is to be delivered to the Custodian;
(iv) deliver any securities held for a Portfolio
against receipt of other securities or cash issued
or paid in connection with the liquidation,
reorganization, refinancing, tender offer, merger,
consolidation or recapitalization of any
corporation, or the exercise of any conversion
privilege;
(v) deliver any securities held for a Portfolio 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;
(vi) make such transfer or exchanges of the assets of
the Fund and take such other steps as shall be
stated in said Oral or
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Written Instructions to be for the purpose of
effectuating a duly authorized plan of
liquidation, reorganization, merger, consolidation
or recapitalization of the Fund;
(vii) release securities belonging to a Portfolio to any
bank or trust company for the purpose of a pledge
or hypothecation to secure any loan incurred by a
Portfolio; provided, however, that securities
shall be released only upon payment to the
Custodian of the monies borrowed, except that in
cases where additional collateral is required to
secure a borrowing already made subject to proper
prior authorization, further securities may be
released for that purpose; and repay such loan
upon redelivery to it of the securities pledged or
hypothecated therefor and upon surrender of the
note or notes evidencing the loan;
(viii) release and deliver securities owned by a
Portfolio in connection with any repurchase
agreement entered into on behalf of the Fund,
but only on receipt of payment therefor; and
pay out moneys of such Portfolio in connection
with such repurchase agreements, but only upon
the delivery of the securities;
(ix) release and deliver or exchange securities owned
by a Portfolio in connection with any conversion
of such securities, pursuant to their terms, into
other securities;
(x) release and deliver securities owned by a
Portfolio for the purpose of redeeming in kind
shares of the Fund upon delivery thereof to the
Custodian; and
(xi) release and deliver or exchange securities owned
by a Portfolio for other corporate purposes.
The Custodian must also receive a certified
resolution describing the nature of the corporate
purpose and the name and address of the person(s)
to whom delivery shall be made when such action is
pursuant to sub-paragraph d.
(e) USE OF BOOK-ENTRY SYSTEM. The Fund shall deliver to the
Custodian certified resolutions of the Fund's Board of Trustees approving,
authorizing and instructing the Custodian on a continuous and on-going basis, to
deposit in the Book-Entry System all securities belonging to a Portfolio
eligible for deposit therein and to utilize the Book-
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Entry System to the extent possible in connection with settlements of purchases
and sales of securities by the Portfolios, and deliveries and returns of
securities loaned, subject to repurchase agreements or used as collateral in
connection with borrowings. The Custodian shall continue to perform such duties
until it receives Written or Oral Instructions authorizing contrary actions(s).
To administer the Book-Entry System properly, the following
provisions shall apply:
(i) With respect to securities of the Fund which are
maintained in the Book-Entry system, established
pursuant to this sub-paragraph e hereof, the
records of the Custodian shall identify by
Book-Entry or otherwise those securities belonging
to each Portfolio. The Custodian shall furnish the
Fund a detailed statement of the Property held for
each Portfolio under this Agreement at least
monthly and from time to time and upon written
request.
(ii) Securities and any cash of each Portfolio
deposited in the Book-Entry System will at all
times be segregated from any assets and cash
controlled by the Custodian in other than a
fiduciary or custodian capacity but may be
commingled with other assets held in such
capacities. The Custodian and its sub-custodian,
if any, will pay out money only upon receipt of
securities and will deliver securities only upon
the receipt of money.
(iii) All books and records maintained by the Custodian
which relate to the Fund's participation in the
Book-Entry System will at all times during the
Custodian's regular business hours be open to the
inspection of the Fund's duly authorized employees
or agents, and the Fund will be furnished with all
information in respect of the services rendered to
it as it may require.
(iv) The Custodian will provide the Fund with copies of
any report obtained by the Custodian on the system
of internal accounting control of the Book-Entry
System promptly after receipt of such a report by
the Custodian.
The Custodian will also provide the Fund with such reports on its own
system of internal control as the Fund may reasonably request from time to time.
(f) REGISTRATION OF SECURITIES. All Securities held for a
Portfolio which
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are issued or issuable only in bearer form, except such securities held in the
Book-Entry System, shall be held by the Custodian in bearer form; all other
securities held for a Portfolio may be registered in the name of the Fund on
behalf of a Portfolio, the Custodian, the Book-Entry System, a sub-custodian, or
any duly appointed nominees of a Portfolio, the Custodian, Book-Entry system or
sub-custodian. The Fund reserves the right to instruct the Custodian as to the
method of registration and safekeeping of the securities of a Portfolio. The
Fund agrees to furnish to the Custodian appropriate instruments to enable the
Custodian to hold or deliver in proper form for transfer, or to register its
registered nominee or in the name of the Book-Entry System, any securities which
it may hold for the account of any Portfolio and which may from time to time be
registered in the name of the Fund on behalf of a Portfolio. The Custodian shall
hold all such securities which are not held in the Book-Entry System in a
separate account for each Portfolio in the name of the Fund on behalf of the
relevant Portfolio physically segregated at all times from those of any other
person or persons.
(g) VOTING AND OTHER ACTION. Neither the Custodian nor its
nominee shall vote any of the securities held pursuant to this Agreement by or
for the account of any Portfolio, except in accordance with Written
Instructions. The Custodian, directly or through the use of the Book-Entry
System, shall execute in blank and promptly deliver all notice, proxies, and
proxy soliciting materials to the registered holder of such securities. If the
registered holder is not the Fund on behalf of a Portfolio, then Written or Oral
Instructions must designate the person who owns such securities.
(h) TRANSACTIONS NOT REQUIRING INSTRUCTIONS. In the absence
of contrary Written Instructions, the Custodian is authorized to take the
following actions:
(i) Collection of Income and Other Payments.
(A) collect and receive for the account of each
Portfolio, all income, dividends,
distributions, coupons, option premiums,
other payments and similar items, included
or to be included in the Property, and, in
addition, promptly advise the Fund of such
receipt and credit such income, as
collected, to the Portfolio's custodian
account;
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(B) endorse and deposit for collection, in the
name of each Portfolio, checks, drafts, or
other orders for the payment of money;
(C) receive and hold for the accounts of each
Portfolio all securities received as a
distribution on that Portfolio's portfolio
securities as a result of a stock dividend,
share split-up or reorganization,
recapitalization, readjustment or other
rearrangement or distribution of rights or
similar securities issued with respect to
any portfolio securities belonging to a
Portfolio held by the Custodian hereunder;
(D) present for payment and collect the amount
payable upon all securities which may mature
or be called, redeemed or retired, or
otherwise become payable on the date such
securities become payable; and
(E) take any action which may be necessary and
proper in connection with the collection and
receipt of such income and other payments
and the endorsement for collection of
checks, drafts, and other negotiable
instruments.
(ii) MISCELLANEOUS TRANSACTIONS.
(A) The Custodian is authorized to deliver or
cause to be delivered Property against
payment or other consideration or written
receipt therefor, in the following cases:
(1) for examination by a broker or
dealer selling for the account
of a Portfolio in accordance
with street delivery custom;
(2) for the exchange of interim
receipts or temporary securities
for definitive securities; and
(3) for transfer of securities into
name of the Fund on behalf of a
Portfolio or the Custodian or
nominee of either, or for
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exchange of securities for a
different number of bonds,
certificates, or other evidence,
representing the same aggregate
face amount or number of units
bearing the same interest rate,
maturity date and call
provisions, if any, provided
that, in any such case, the new
securities are to be delivered
to the Custodian.
(B) Unless and until the Custodian receives Oral
or Written instructions to the contrary, the
Custodian shall:
(1) pay all income items held by it
which call for payment upon
presentation and hold the cash
received by it upon such payment
for the account of each
Portfolio;
(2) collect interest and cash
dividends received, with notice
to the Fund, to the account of
each Portfolio;
(3) hold for the account of each
Portfolio all stock dividends,
rights and similar securities
issued with respect to any
securities held by the
Custodian; and
(4) execute as agent on behalf of
the Fund all necessary ownership
certificates required by the
Internal Revenue Code or the
Income Tax Regulations of the
United States Treasury
Department or under the laws of
any State now or hereafter in
effect, inserting the Fund's
name on behalf of any Portfolio
on such certificate as the owner
of the securities covered
thereby, to the extent it may
lawfully do so.
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(i) SEGREGATED ACCOUNTS.
(i) The Custodian shall upon receipt of Written
or Oral Instructions establish and maintain
segregated accounts on its records for and
on behalf of each Portfolio. Such accounts
may be used to transfer cash and securities,
including securities in the Book-Entry
System:
(A) for the purposes of compliance by the Fund
with the procedures required by a securities
or option exchange, providing such
procedures comply with the 1940 Act and any
releases of the SEC relating to the
maintenance of segregated accounts by
registered investment companies; and
(B) Upon receipt of Written Instructions, for
other proper corporate purposes.
(ii) The Custodian may enter into separate
custodial agreements with various futures
commission merchants ("FCMs") that the Fund
uses (each an "FCM Agreement"), pursuant to
which the Fund's margin deposits in any
transactions involving futures contracts and
options on futures contracts will be held by
the Custodian in accounts (each an "FCM
Account") subject to the disposition by the
FCM involved in such contracts in accordance
with the customer contract between FCM and
the Fund ("FCM Contract"), SEC rules
governing such segregated accounts, CFTC
rules and the rules of the applicable
commodities exchange. Such FCM Agreements
shall only be entered into upon receipt of
Written Instructions from the Fund which
state that (i) a customer agreement between
the FCM and the Fund has been entered into;
and (ii) the Fund is in compliance with all
the rules and regulations of the CFTC.
Transfers of initial margin shall be made
into an FCM Account only upon Written
Instructions; transfers of premium and
variation margin may be made into an FCM
Account pursuant to Oral Instructions.
Transfers of funds from an FCM Account to
the FCM for which the Custodian holds such
an account may only occur upon certification
by the FCM to the Custodian that pursuant to
the FCM Agreement and the FCM Contract, all
conditions precedent to its right to give
the Custodian such instruction have been
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satisfied.
(j) PURCHASES OF SECURITIES. The Custodian shall settle
purchased securities upon receipt of Oral or Written Instructions from the Fund
or its investment adviser(s) that specify:
(i) the name of the issuer and the title of the
securities, including CUSIP number if applicable;
(ii) the number of shares or the principal amount
purchased and accrued interest, if any;
(iii) the date of purchase and settlement;
(iv) the purchase price per unit;
(v) the total amount payable upon such purchase;
(vi) the name of the person from whom or the broker
through whom the purchase was made. The Custodian
shall upon receipt of securities purchased by or
for a Portfolio pay out of the moneys held for the
account of a Portfolio the total amount payable to
the person from whom or the broker through whom
the purchase was made, provided that the same
conforms to the total amount payable as set forth
in such Oral or Written Instructions; and
(vii) the name of the Portfolio involved.
(k) SALES OF SECURITIES. The Custodian shall settle sold
securities upon receipt of Oral or Written Instructions from the Fund that
specify:
(i) the name of the issuer and the title of the
security, including CUSIP number if applicable;
(ii) the number of shares or principal amount sold, and
accrued interest, if any;
(iii) the date of trade and settlement and sale;
(iv) the sale price per unit;
(v) the total amount payable to the Portfolio upon
such sale;
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(vi) the name of the broker through whom or the person
to whom the sale was made;
(vii) the location to which the security must be
delivered and delivery deadline, if any; and
(viii) the name of the Portfolio involved.
The Custodian shall deliver the securities upon receipt of the total
amount payable to the Portfolio upon such sale, provided that the total amount
payable is the same as was set forth in the Oral or Written Instructions.
Subject to the foregoing, the Custodian may accept payment in such form as shall
be satisfactory to it, and may deliver securities and arrange for payment in
accordance with the customs prevailing among dealers in securities.
(l) REPORTS.
(i) The Custodian shall furnish the Fund the following
reports:
(A) such periodic and special reports as the Fund may
reasonably request;
(B) a monthly statement summarizing all transactions
and entries for the account of each Portfolio,
listing the portfolio securities belonging to each
Portfolio with the adjusted average cost of each
issue and stating the cash account of each
Portfolio including disbursements;
(C) the reports to be furnished to the Fund pursuant
to Rule l7f-4; and
(D) such other information as may be agreed upon from
time to time between the Fund and the Custodian.
(ii) The Custodian shall transmit promptly to the Fund
any proxy statement, proxy material, notice of a
call or conversion or similar communication
received by it as custodian of the Property. The
Custodian shall be under no other obligation to
inform the Fund as to such actions or events.
(m) COLLECTIONS. All collections of monies or other property
in respect, or which are to become part, of the Property (but not the
safekeeping thereof upon receipt by the
-17-
Custodian) shall be at the sole risk of the Fund. If payment is not received by
the Custodian within a reasonable time after proper demands have been made, the
Custodian shall notify the Fund in writing, including copies of all demand
letters, any written responses, memoranda of all oral responses and telephonic
demands thereto, and await instructions from the Fund. The Custodian shall not
be obliged to take legal action for collection unless and until reasonably
indemnified to its satisfaction. The Custodian shall also notify the Fund as
soon as reasonably practicable whenever income due on securities is not
collected in due course and shall provide the Fund with periodic status reports
of such income uncollected after a reasonable time.
15. DURATION AND TERMINATION. This Agreement shall continue until
terminated by the Fund or by the Custodian on sixty (60) days' prior written
notice to the other party. In the event this Agreement is terminated (pending
appointment of a successor to the Custodian or vote of the shareholders of the
Fund to dissolve or to function without a custodian of its cash, securities or
other property), the Custodian shall not deliver cash, securities or other
property of the Portfolios to the Fund. It may deliver them to a bank or trust
company of the Custodian's choice, having an aggregate capital, surplus and
undivided profits, as shown by its last published report, of not less than
twenty million dollars ($20,000,000), as a custodian for the Fund to be held
under terms similar to those of this Agreement. The Custodian shall not be
required to make any such delivery or payment until full payment shall have been
made to the Custodian of all of its fees, compensation, costs and expenses. The
Custodian shall have a security interest in and shall have a right of setoff
against property in the Fund's possession as security for the payment of such
fees, compensation, costs and expenses.
16. NOTICES. All notices and other communications, including
Written Instructions, shall be in writing or by confirming telegram, cable,
telex or facsimile sending device. Notice shall be addressed (a) if to the
Custodian, at the Custodian's address, 0000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxx
00000, marked for the attention of the Custodian Services Department (or its
successor); (b) if to the Fund, at the address of the Fund; or (c) if to neither
of the foregoing, at such other address as shall have been notified to the
sender of any such Notice or other communication. If notice is sent by
confirming telegram, cable, telex or facsimile sending device, it shall be
deemed to have been given immediately. If notice is sent by first-class mail, it
shall be deemed to have been given five days after it has been mailed. If notice
is sent by messenger, it shall be deemed to have been given on the day it is
delivered.
17. AMENDMENTS. This Agreement, or any term hereof, may be changed
or waived only by a written amendment, signed by the party against whom
enforcement of such change or waiver is sought.
18. DELEGATION. The Custodian may assign its rights and delegate
its duties hereunder to any wholly-owned direct or indirect subsidiary of
National City Bank, or National City Corporation, provided that (i) the
Custodian gives the Fund thirty (30) days prior written notice; (ii) the
delegate agrees with the Custodian to comply with all relevant provisions of the
1940 Act; and (iii) the Custodian and such delegate promptly provide such
information as the
-18-
Fund may request, and respond to such questions as the Fund may ask, relative to
the delegation, including (without limitation) the capabilities of the delegate.
19. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
20. FURTHER ACTIONS. Each party agrees to perform such further
acts and execute such further documents as are necessary to effectuate the
purposes hereof.
21. MISCELLANEOUS. The Custodian acknowledges that the Fund is a
Massachusetts business trust, and that it is required by the Declaration to
limit its liability in all agreements to the assets of the Fund. Consequently,
the Custodian agrees that any claims by it against the Fund may be satisfied
only from the assets of the Fund, and no shareholders, trustees or officers of
the Fund may be held personally liable or responsible for any obligations
arising out of this Agreement. This Agreement embodies the entire agreement and
understanding between the parties and supersedes all prior agreements and
understandings relating to the subject matter hereof, provided that the parties
may embody in one more separate documents their agreement, if any, with respect
to delegated and/or Oral Instructions.
The captions in this Agreement are included for convenience of reference
only and in no way define or delimit any of the provisions hereof or otherwise
affect their construction or effect.
-19-
This Agreement shall be deemed to be a contract made in Ohio and governed
by Ohio law. If any provision of this Agreement shall be held or made invalid by
a court decision, statute, rule or otherwise, the remainder of this Agreement
shall not be affected thereby. This Agreement shall be binding and shall inure
to the benefit of the parties hereto and their respective successors.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their officers designated below on the day and year first above
written.
NATIONAL CITY BANK
By: /s/Xxxxxxx X. XxXxxxxx
----------------------
Title: Senior Vice President
NCC FUNDS
By:/s/Xxxxxxx X. Xxxxxx
--------------------
Title: President
-20-
PORTFOLIOS
This EXHIBIT A, dated November 7, 1994, is that certain Exhibit A to a
Custodian Services Agreement dated as of November 7, 1994 between the
undersigned parties. This Exhibit A supersedes all previously dated Exhibits A.
Money Market Portfolio
Government Portfolio
Treasury Portfolio
Tax Exempt Portfolio
Equity Portfolio
Fixed Income Portfolio
Ohio Tax Exempt Portfolio
National Tax Exempt Portfolio
Equity Income Portfolio
Mid Cap Regional Equity Portfolio
Enhanced Income Fund
Total Return Advantage Fund
NATIONAL CITY BANK
By:/s/Xxxxxxx X. XxXxxxxx
----------------------
Title: Senior Vice President
NCC FUNDS
By:/s/Xxxxxxx X. Xxxxxx
--------------------
Title: President
-21-
AUTHORIZED PERSONS
APPENDIX
This Appendix, dated November 7, 1994, is that certain Appendix
to a Custodian Services Agreement dated as of November 7, 1994 between NCC
Funds and National City Bank.
NAMES SIGNATURES
Xxxxxx X. Xxxxxx /s/ X.X. Xxxxxx
---------------- ---------------
Xxxxxx X. Xxxxxx /s/Xxxxxx X. Xxxxxx
---------------- -------------------
Xxx Xxxxx /s/Xxx Xxxxx
--------- ------------
Xxxxxxx X. XxXxxxxx /s/Xxxxxxx XxXxxxxx
------------------- -------------------
Xxxxxxxxx Xxxxx /s/Xxxxxxxxx Xxxxx
--------------- ------------------
J. Xxxxxx Xxxxxx /s/ X.X. Xxxxxx
---------------- ----------------
-22-
[Letterhead of National City Bank]
NCC Funds
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000-0000
Re: Custodian Services Fees
-----------------------
Ladies and Gentlemen:
This letter constitutes our agreement with respect to compensation
to be paid to National City Bank (the "Custodian") under the terms of a
Custodian Services Agreement dated _________, 1994 (the "Agreement") between NCC
Funds ("you" or the "Fund") and the Custodian. Pursuant to Paragraph 11 of the
Agreement, and in consideration of the services to be provided to you, you will
pay the Custodian the following:
1. With respect to each of the Fund's investment portfolios
listed on Exhibit A to the Agreement (the "Portfolios"), an annual custody fee
of .020% of each Portfolio's first $100 million of average daily net assets,
.010% of each Portfolio's next $650 million of average daily net assets and
.008% of the average daily net assets of each Portfolio which exceed $750
million, exclusive of out-of-pocket expenses and transaction charges. Custody
fees shall be calculated daily and paid monthly.
2. The transaction charges are a bundled fee. This bundled fee
will not exceed .25% of the amount of total NCC Funds monthly asset based fee.
3. The Custodian's out-of-pocket expenses including, but not
limited to, postage, telephone, telex, interest claim fee ($50.00 per claim),
transfer and registration fees, federal express charges, Federal Reserve and
wire fees.
4. The Custodian's out-of-pocket costs in providing foreign
custody services and/or precious metal custody services.
The fee for the period from the date hereof until the end of such
year shall be pro-rated according to the proportion which such period bears to
the full annual period.
NCC Funds
------------------
Page 2
If the foregoing accurately sets forth our agreement and you intend
to be legally bound thereby, please execute a copy of this letter and return it
to us.
Very truly yours,
NATIONAL CITY BANK
By:
---------------------
Accepted:
NCC FUNDS
By:
------------------
