CLOSED-END FUND CUSTODY AGREEMENT
Exhibit
(j)
CLOSED-END
FUND
THIS
AGREEMENT is made and entered into as of this 24th day of July 2007, by and
among, A T FUND OF FUNDS TEI, a Delaware statutory trust (the
“Fund”), A T FUND OF FUNDS LTD., a Cayman Islands exempted
company (the “Offshore Fund”), A T FUND OF FUNDS, the sole
series of A T Funds Investment Trust, a Delaware statutory
trust (the “Master Fund”), (each a “Fund” andcollectively
the “Funds”), and U.S. BANK NATIONAL ASSOCIATION, a national
banking association organized and existing under the laws of the United States
of America with its principal place of business at Minneapolis, Minnesota
(the
“Custodian”). If the context requires that the word “Fund” be read in the
plural, it shall be “Funds”.
WHEREAS,
the Fund and Master Fund are registered under the Investment Company Act
of
1940, as amended (the “1940 Act”), as closed-end management investment
companies, and the Offshore Fund acts solely as a conduit between the Fund
and
the Master Fund that is not required to be registered as an investment company
under the 1940 Act, and the Fund and Master Fund are authorized to issue
shares of beneficial interest in separate series, with each such series
representing interests in a separate portfolio of securities and other
assets;
WHEREAS,
the Custodian is a bank having the qualifications prescribed in
Section 26(a)(1) of the 1940 Act;
WHEREAS,
the Funds desire to retain the Custodian to act as custodian of the cash
and
securities of each of the Funds; and
WHEREAS,
the Boards of Trustees of the Fund and the Master Fund have delegated to
the Custodian the responsibilities set forth in Rule 17f-5(c) under the 1940
Act
and the Custodian is willing to undertake the responsibilities and serve
as the
foreign custody manager for the Funds.
NOW,
THEREFORE, in consideration of the promises and mutual covenants herein
contained, and other good and valuable consideration, the receipt of which
is
hereby acknowledged, the parties hereto, intending to be legally bound, do
hereby agree as follows:
ARTICLE
I
CERTAIN
DEFINITIONS
Whenever
used in this Agreement, the following words and phrases shall have the meanings
set forth below, unless the context otherwise requires:
1.1
|
“Authorized
Person” means any Officer or other person duly authorized by
resolution of the Board of Directors to give Oral Instructions
and Written
Instructions on behalf of the Fund and named in Exhibit A hereto or
in such resolutions of the Board of Directors, certified by an
Officer, as
may be received by the Custodian from time to
time.
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1.2
|
“Board
of Directors” or “Board” shall mean the trustees of the Fund or the
Master Fund or the director(s) of the Offshore Fund from time to time
serving under the respective Funds’ governing documents, as amended from
time to time.
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1.3
|
“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
CFR Part
350, or in such book-entry regulations of federal agencies as are
substantially in the form of such Subpart
O.
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1.4
|
“Business
Day” shall mean any day recognized as a settlement day by The New
York
Stock Exchange, Inc., and any other day for which a Fund computes
the net
asset value of Shares of the Fund.
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1.5
|
“Eligible
Securities Depository” shall mean a system for the central handling of
securities as that term is defined in Rule 17f-4 and 17f-7 under
the 1940
Act.
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1.6
|
“Fund
Custody Account” shall mean any account in the name of a Fund, which
is provided for in Section 3.2
below.
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1.7
|
“IRS”
shall mean the Internal Revenue
Service.
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1.8
|
“NASD” shall
mean The National Association of Securities Dealers,
Inc.
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1.9
|
“Officer”
shall mean the Chairman, President, any Vice President, any Assistant
Vice
President, the Secretary, any Assistant Secretary, the Treasurer,
or any
Assistant Treasurer of a Fund.
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1.10
|
“Oral
Instructions” shall mean instructions orally transmitted to and
accepted by the Custodian because such instructions are: (i)
reasonably believed by the Custodian to have been given by any
two
Authorized Persons, (ii) recorded and kept among the records of
the
Custodian made in the ordinary course of business, and (iii) orally
confirmed by the Custodian. The Funds shall cause all Oral
Instructions to be confirmed by Written Instructions prior to the
end of
the next Business Day. If such Written Instructions confirming
Oral Instructions are not received by the Custodian prior to a
transaction, it shall in no way affect the validity of the transaction
or
the authorization thereof by the Funds. If Oral Instructions
vary from the Written Instructions that purport to confirm them,
the
Custodian shall notify the Funds of such variance but such Oral
Instructions will govern unless the Custodian has not yet
acted.
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1.11
|
“Proper
Instructions” shall mean Oral Instructions or Written
Instructions.
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1.12
|
“SEC”
shall mean the Securities and Exchange
Commission.
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1.13
|
“Securities”
shall include, without limitation, common and preferred stocks,
bonds,
call options, put options, debentures, notes, 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 representing any other rights or interests
therein,
or any similar property or assets that the Custodian has the facilities
to
clear and service.
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1.14
|
“Securities
Depository” shall mean The Depository Trust Company and any other
clearing agency registered with the SEC under Section 17A of the
Securities Exchange Act of 1934, as amended (the “1934 Act”), which acts
as a system for the central handling of Securities where all Securities
of
any particular class or series of an issuer deposited within the
system
are treated as fungible and may be transferred or pledged by bookkeeping
entry without physical delivery of the
Securities.
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2
1.15
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“Shares”
shall mean, with respect to a Fund, the units of beneficial interest
issued by the Fund on account of the
Fund.
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1.16
|
“Sub-Custodian”
shall mean and include (i) any branch of a “U.S. bank,” as that term
is defined in Rule 17f-5 under the 1940 Act, and (ii) any
“eligible foreign custodian,” as that term is defined in Rule 17f-5
under the 1940 Act, having a contract with the Custodian which the
Custodian has determined will provide reasonable care of assets
of the
Fund based on the standards specified in Section 3.3
below. Such contract shall be in writing and shall 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 Sub-Custodian or its creditors except a claim
of
payment for their safe custody or administration, in the case of
cash
deposits, liens or rights in favor of creditors of the Sub-Custodian
arising under bankruptcy, insolvency, or similar laws; (iii) that
beneficial ownership for 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 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
or
confirmation of the contents of those records; and (vi) that the Fund
will receive periodic reports with respect to the safekeeping of
the
Fund’s assets, including, but not limited to, notification of any transfer
to or from a Fund’s account or a third party account containing assets
held for the benefit of the Fund. Such contract may contain, in
lieu of any or all of the provisions specified in (i) – (vi) above, such
other provisions that the Custodian determines will provide, in
their
entirety, the same or a greater level of care and protection for
Fund
assets as the specified provisions.
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1.17
|
“Written
Instructions” shall mean (i) written communications actually received
by the Custodian and signed by any two Authorized Persons, (ii)
communications by telex or any other such system from one or more
persons
reasonably believed by the Custodian to be Authorized Persons,
or (iii)
communications between electro-mechanical or electronic devices
provided
that the use of such devices and the procedures for the use thereof
shall
have been approved by resolutions of the Board, a copy of which,
certified
by an Officer, shall have been delivered to the
Custodian.
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ARTICLE
II
APPOINTMENT
OF CUSTODIAN
2.1
|
Appointment. The
Funds hereby appoint the Custodian as custodian of all Securities
and cash
owned by or in the possession of the Fund at any time during the
period of
this Agreement, on the terms and conditions set forth in this Agreement,
and the Custodian hereby accepts such appointment and agrees to
perform
the services and duties set forth in this Agreement. The
services and duties of the Custodian shall be confined to those
matters
expressly set forth herein, and no implied duties are assumed by
or may be
asserted against the Custodian
hereunder.
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2.2
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Documents
to be Furnished. The following documents, including any
amendments thereto, will be provided contemporaneously with the
execution
of the Agreement to the Custodian by the
Funds:
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3
(a)
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A
copy of the Funds governing documents, certified by the Secretary
or other
Authorized Person;
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(b)
|
A
copy of the resolution of the Board appointing the Custodian, certified
by
the Secretary or other Authorized
Person;
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(c)
|
A
copy of the current private placement memorandum of the Fund (the
“Prospectus”); and
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(d)
|
A
certification of the Chairman or the President and the Secretary
or other
Authorized Person of the Fund setting forth the names and signatures
of
the current Officers of the Fund and other Authorized
Persons.
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2.3
|
Notice
of Appointment of Transfer Agent. The Funds agree to notify
the Custodian in writing of the appointment, termination or change
in
appointment of any transfer agent (or other entity performing a
similar
function) of the Funds.
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ARTICLE
III
CUSTODY
OF CASH AND SECURITIES
3.1
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Segregation. All
Securities and non-cash property held by the Custodian for the
account of
the Fund (other than Securities maintained in a Securities Depository,
Eligible Securities Depository or Book-Entry System) shall be physically
segregated from other Securities and non-cash property in the possession
of the Custodian (including the Securities and non-cash property
of the
other series of the Fund) and shall be identified as subject to
this
Agreement.
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3.2
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Fund
Custody Accounts. As to each Fund, the Custodian shall open
and maintain in its trust department a custody account in the name
of the
Fund coupled with the name of the Fund, subject only to draft or
order of
the Custodian, in which the Custodian shall enter and carry all
Securities, cash and other assets of such Fund which are delivered
to
it.
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3.2.1
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Offshore
Fund Custody Account Requirements. Notwithstanding
any provision in this Agreement to the contrary, the Custodian
agrees that
(i) its shall maintain at all times all of the assets of the Offshore
Fund
in the United States, and (ii) the Offshore Fund's cash, if any,
will be
maintained at all times in the United States by a bank that qualifies
as a
custodian under Section 17(f) of the 1940
Act.
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3.3
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Appointment
of Agents.
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(a)
|
In
its discretion, the Custodian may appoint one or more Sub-Custodians
to
establish and maintain arrangements with (i) Eligible Securities
Depositories or (ii) members of the Sub-Custodian’s network to hold
Securities and cash of the Fund and to carry out such other provisions
of
this Agreement as it may determine; provided, however, that the
appointment of any such agents and maintenance of any Securities
and cash
of the Fund shall be at the Custodian’s expense and shall not relieve the
Custodian of any of its obligations or liabilities under this
Agreement. The Custodian shall be liable for the actions of any
Sub-Custodians (regardless of whether assets are maintained in
the custody
of a Sub-Custodian, a member of its network or an Eligible Securities
Depository) appointed by it as if such actions had been done by the
Custodian.
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(b)
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If,
after the initial approval of Sub-Custodians by the Boards in connection
with this Agreement, the Custodian wishes to appoint other Sub-Custodians
to hold property of the Funds, it will so notify the Funds and
provide them with information
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4
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reasonably
necessary to determine any such new Sub-Custodian’s eligibility under Rule
17f-5 under the 1940 Act, including a copy of the proposed
agreement with
such Sub-Custodian. At the meeting of the Board next following
receipt of such notice and information, the Fund shall give
its written
approval or disapproval of the proposed
action.
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(c)
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The
agreement(s) between the Custodian and each Sub-Custodian acting
hereunder
shall contain the required provisions set forth in Rule 17f-5(c)(2)
under the 1940 Act.
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(d)
|
At
the end of each calendar quarter, the Custodian shall provide written
reports notifying the Boards of the placement of the Securities
and cash
of the Funds with a particular Sub-Custodian and of any material
changes
in the Funds’ arrangements. The Custodian shall promptly take
such steps as may be required to withdraw assets of the Fund from
any
Sub-Custodian arrangement that has ceased to meet the requirements
of Rule
17f-5 or Rule 17f-7 under the 1940 Act, as
applicable.
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(e)
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With
respect to its responsibilities under this Section 3.3, the Custodian
hereby warrants to the Funds that it agrees to exercise reasonable
care,
prudence and diligence such as a person having responsibility for
the
safekeeping of property of the Funds. The Custodian further
warrants that the Funds’ assets will be subject to reasonable care if
maintained with a Sub-Custodian, after considering all factors
relevant to
the safekeeping of such assets, including, without
limitation: (i) the Sub-Custodian’s practices, procedures, and
internal controls for certificated securities (if applicable),
its method
of keeping custodial records, and its security and data protection
practices; (ii) whether the Sub-Custodian has the
requisite financial strength to provide reasonable care for Fund
assets;
(iii) the Sub-Custodian’s general reputation and standing and,
in the case of a Securities Depository, the Securities Depository’s
operating history and number of participants; and (iv) whether
the Funds will have jurisdiction over and be able to enforce judgments
against the Sub-Custodian, such as by virtue of the existence of
any
offices of the Sub-Custodian in the United States or the Sub-Custodian’s
consent to service of process in the United
States.
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(f)
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The
Custodian shall establish a system or ensure that its Sub-Custodian
has
established a system to monitor (i) the appropriateness of maintaining
the
Funds’ assets with a Sub-Custodian or members of a Sub-Custodian’s
network; and (ii) the performance of the contract governing the
Funds’ arrangements with such Sub-Custodian or members of a
Sub-Custodian’s network.
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(g)
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The
Custodian shall use reasonable commercial efforts to collect all
income
and other payments that the Custodian is aware with respect to
foreign
Securities to which the Funds shall be entitled and shall credit
such
income, as collected, to the Funds. In the event that
extraordinary measures are required to collect such income, the
Funds and
Custodian shall consult as to the measurers and as to the compensation
and
expenses of the Custodian relating to such
measures.
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3.4
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Delivery
of Assets to Custodian. The Funds shall deliver, or cause
to be delivered, to the Custodian all of the Fund’s Securities, cash and
other investment assets, including (i) all payments of income,
payments of
principal and capital distributions received by the Fund with respect
to
such Securities, cash or other assets owned by the Fund at any
time
during
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5
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during
the period of this Agreement, and (ii) all cash received by
the Fund for
the issuance of Shares. The Custodian shall not be responsible
for such Securities, cash or other assets until actually received
by
it.
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3.5
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Securities
Depositories and Book-Entry Systems. The Custodian may
deposit and/or maintain Securities of the Fund in a Securities
Depository
or in a Book-Entry System, subject to the following
provisions:
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(a)
|
The
Custodian, on an on-going basis, shall deposit in a Securities
Depository
or Book-Entry System all Securities eligible for deposit therein
and shall
make use of such Securities Depository or Book-Entry System to
the extent
possible and practical in connection with its performance hereunder,
including, without limitation, in connection with settlements of
purchases
and sales of Securities, loans of Securities, and deliveries and
returns
of collateral consisting of
Securities.
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(b)
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Securities
of the Fund kept in a Book-Entry System or Securities Depository
shall be
kept in an account (“Depository Account”) of the Custodian in such
Book-Entry System or Securities Depository which includes only
assets held
by the Custodian as a fiduciary, custodian or otherwise for
customers.
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(c)
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The
records of the Custodian with respect to Securities of the Fund
maintained
in a Book-Entry System or Securities Depository shall, by book-entry,
identify such Securities as belonging to the
Fund.
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(d)
|
If
Securities purchased by the Fund are to be held in a Book-Entry
System or
Securities Depository, the Custodian shall pay for such Securities
upon
(i) receipt of advice from the Book-Entry System or Securities
Depository that such Securities have been transferred to the Depository
Account, and (ii) the making of an entry on the records of the
Custodian to reflect such payment and transfer for the account
of the
Fund. If Securities sold by the Fund are held in a Book-Entry
System or Securities Depository, the Custodian shall transfer such
Securities upon (i) receipt of advice from the Book-Entry System or
Securities Depository that payment for such Securities has been
transferred to the Depository Account, and (ii) the making of an
entry on the records of the Custodian to reflect such transfer
and payment
for the account of the Fund.
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(e)
|
The
Custodian shall provide the Funds with copies of any reports (obtained
by
the Custodian from a Book-Entry System or Securities Depository
in which
Securities of the Fund are kept) on the internal accounting controls
and
procedures for safeguarding Securities deposited in such Book-Entry
System
or Securities Depository.
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(f)
|
Notwithstanding
anything to the contrary in this Agreement, the Custodian shall
be liable
to the Funds for any loss or damage to the Funds resulting from
(i) the
use of a Book-Entry System or Securities Depository by reason of
any
negligence or willful misconduct on the part of the Custodian or
any
Sub-Custodian, or (ii) failure of the Custodian or any Sub-Custodian
to
enforce effectively such rights as it may have against a Book-Entry
System
or Securities Depository. At their election, the Funds shall be
subrogated to the rights of the Custodian with respect to any claim
against a Book-Entry System or Securities Depository or any other
person
from any loss or damage to the Fund arising from the use of such
Book-Entry System or Securities
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6
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Depository,
if and to the extent that the Fund has not been made whole
for any such
loss or damage.
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(g)
|
With
respect to its responsibilities under this Section 3.5 and pursuant
to Rule 17f-4 under the 1940 Act, the Custodian hereby warrants to
the Fund that it agrees to (i) exercise due care in accordance with
reasonable commercial standards in discharging its duty as a securities
intermediary to obtain and thereafter maintain such assets,
(ii) provide, promptly upon request by the Fund, such reports as are
available concerning the Custodian’s internal accounting controls and
financial strength, and (iii) require any Sub-Custodian to exercise
due care in accordance with reasonable commercial standards in
discharging
its duty as a securities intermediary to obtain and thereafter
maintain
assets corresponding to the security entitlements of its entitlement
holders.
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3.6
|
Disbursement
of Moneys from Fund Custody Account. Upon receipt of Proper
Instructions, the Custodian shall disburse moneys from the Fund
Custody
Account but only in the following
cases:
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(a)
|
For
the purchase of Securities for the Fund but only in accordance
with
Section 4.1 of this Agreement and only (i) in the case of
Securities (other than options on Securities, futures contracts,
and
options on futures contracts), against the delivery to the Custodian
(or
any Sub-Custodian) of such Securities registered as provided in
Section 3.9 below or in proper form for transfer, or if the purchase
of such Securities is effected through a Book-Entry System or Securities
Depository, in accordance with the conditions set forth in
Section 3.5 above; (ii) in the case of options on Securities,
against delivery to the Custodian (or any Sub-Custodian) of such
receipts
as are required by the customs prevailing among dealers in such
options;
(iii) in the case of futures contracts and options on futures
contracts, against delivery to the Custodian (or any Sub-Custodian)
of
evidence of title thereto in favor of the Fund or any nominee referred
to
in Section 3.9 below; and (iv) in the case of repurchase or
reverse repurchase agreements entered into between the Funds and
a bank
which is a member of the Federal Reserve System or between the
Funds and a
primary dealer in U.S. Government securities, against delivery
of the
purchased Securities either in certificate form or through an entry
crediting the Custodian’s account at a Book-Entry System or Securities
Depository with such Securities;
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(b)
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In
connection with the conversion, exchange or surrender, as set forth
in
Section 3.7(f) below, of Securities owned by the
Fund;
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(c)
|
For
the payment of any dividends or capital gain distributions declared
by the
Fund;
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(d)
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In
payment of the price of Shares repurchased in open market purchases
or
through tender offers as provided in Section 5.1
below;
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(e)
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For
the payment of any expense or liability incurred by the Fund, including,
but not limited to, the following payments for the account of the
Fund: interest; taxes; administration, investment advisory,
accounting, auditing, transfer agent, custodian, director and legal
fees;
and other operating expenses of the Fund; in all cases, whether
or not
such expenses are to be in whole or in part capitalized or treated
as
deferred expenses;
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7
(f)
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For
transfer in accordance with the provisions of any agreement among
the
Funds, the Custodian, and a broker-dealer registered under the
1934 Act
and a member of the NASD, relating to compliance with rules of
the Options
Clearing Corporation and of any registered national securities
exchange
(or of any similar organization or organizations) regarding escrow
or
other arrangements in connection with transactions by the
Fund;
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(g)
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For
transfer in accordance with the provisions of any agreement among
the
Funds, the Custodian, and a futures commission merchant registered
under
the Commodity Exchange Act, relating to compliance with the rules
of the
Commodity Futures Trading Commission and/or any contract market
(or any
similar organization or organizations) regarding account deposits
in
connection with transactions by the
Fund;
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(h)
|
For
the funding of any uncertificated time deposit or other interest-bearing
account with any banking institution (including the Custodian),
which
deposit or account has a term of one year or less;
and
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(i)
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For
any other proper purpose, but only upon receipt, in addition to
Proper
Instructions, of a copy of a resolution of the Board, certified
by an
Officer, specifying the amount and purpose of such payment, declaring
such
purpose to be a proper corporate purpose, and naming the person
or persons
to whom such payment is to be made.
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3.7
|
Delivery
of Securities from Fund Custody Account. Upon receipt of
Proper Instructions, the Custodian shall release and deliver, or
cause the
Sub-Custodian to release and deliver, Securities from the Funds’ Custody
Accounts but only in the following
cases:
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(a)
|
Upon
the sale of Securities for the account of the Fund but only against
receipt of payment therefor in cash, by certified or cashiers check
or
bank credit;
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(b)
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In
the case of a sale effected through a Book-Entry System or Securities
Depository, in accordance with the provisions of Section 3.5
above;
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(c)
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To
an offeror’s depository agent in connection with tender or other similar
offers for Securities of the Fund; provided that, in any such case,
the
cash or other consideration is to be delivered to the
Custodian;
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(d)
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To
the issuer thereof or its agent (i) for transfer into the name
of the
Fund, the Custodian or any Sub-Custodian, or any nominee or nominees
of
any of the foregoing, or (ii) for exchange for a different number
of
certificates or other evidence representing the same aggregate
face amount
or number of units; provided that, in any such case, the new Securities
are to be delivered to the
Custodian;
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(e)
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To
the broker selling the Securities, for examination in accordance
with the
“street delivery” custom;
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(f)
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For
exchange or conversion pursuant to any plan of merger, consolidation,
recapitalization, reorganization or readjustment of the issuer
of such
Securities, or pursuant to provisions for conversion contained
in such
Securities, or pursuant to any deposit agreement, including surrender
or
receipt of underlying Securities in connection with the issuance
or
cancellation of depository receipts; provided that,
in
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8
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any
such case, the new Securities and cash, if any, are to be delivered
to the
Custodian;
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(g)
|
Upon
receipt of payment pursuant to any repurchase or reverse repurchase
agreement entered into by the Fund;
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(h)
|
In
the case of warrants, rights or similar Securities, upon the exercise
thereof, provided that, in any such case, the new Securities and
cash, if
any, are to be delivered to the
Custodian;
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(i)
|
For
delivery in connection with any loans of Securities of the Funds,
but only
against receipt of such collateral as the Funds shall have specified
to
the Custodian in Proper
Instructions;
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(j)
|
For
delivery as security in connection with any borrowings by the Fund
requiring a pledge of assets by the Funds, but only against receipt
by the
Custodian of the amounts borrowed;
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(k)
|
Pursuant
to any authorized plan of liquidation, reorganization, merger,
consolidation or recapitalization of the
Funds;
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(l)
|
For
delivery in accordance with the provisions of any agreement among
the
Fund, the Custodian and a broker-dealer registered under the 1934
Act and
a member of the NASD, relating to compliance with the rules of
the Options
Clearing Corporation and of any registered national securities
exchange
(or of any similar organization or organizations) regarding escrow
or
other arrangements in connection with transactions by the
Fund;
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(m)
|
For
delivery in accordance with the provisions of any agreement among
the
Funds, the Custodian, and a futures commission merchant registered
under
the Commodity Exchange Act, relating to compliance with the rules
of the
Commodity Futures Trading Commission and/or any contract market
(or any
similar organization or organizations) regarding account deposits
in
connection with transactions by the Fund;
or
|
(n)
|
For
any other proper corporate purpose, but only upon receipt, in addition
to
Proper Instructions, of a copy of a resolution of the Board, certified
by
an Officer, specifying the Securities to be delivered, setting
forth the
purpose for which such delivery is to be made, declaring such purpose
to
be a proper corporate purpose, and naming the person or persons
to whom
delivery of such Securities shall be
made.
|
3.8
|
Actions
Not Requiring Proper Instructions. Unless otherwise
instructed by the Fund, the Custodian shall with respect to all
Securities
held for the Fund:
|
(a)
|
Subject
to Section 9.4 below, collect on a timely basis all income and
other
payments to which the Fund is entitled either by law or pursuant
to custom
in the securities business;
|
(b)
|
Present
for payment and, subject to Section 9.4 below, collect on a timely
basis
the amount payable upon all Securities which may mature or be called,
redeemed, or retired, or otherwise become
payable;
|
9
(c)
|
Endorse
for collection, in the name of the Fund, checks, drafts and other
negotiable instruments;
|
(d)
|
Surrender
interim receipts or Securities in temporary form for Securities
in
definitive form;
|
(e)
|
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 now or hereafter in effect, and prepare and submit
reports to the IRS and the Funds at such time, in such manner and
containing such information as is prescribed by the
IRS;
|
(f)
|
Hold
for the Fund, either directly or, with respect to Securities held
therein,
through a Book-Entry System or Securities Depository, all rights
and
similar Securities issued with respect to Securities of the Fund;
and
|
(g)
|
In
general, and except as otherwise directed in Proper Instructions,
attend
to all non-discretionary details in connection with the sale, exchange,
substitution, purchase, transfer and other dealings with Securities
and
other assets of the Fund.
|
3.9
|
Registration
and Transfer of Securities. All Securities held for the
Fund that are issued or issuable only in bearer form shall be held
by the
Custodian in that form, provided that any such Securities shall
be held in
a Book-Entry System if eligible. All other Securities held for
the Fund may be registered in the name of the Fund, the Custodian,
a
Sub-Custodian, or any nominee of any of them, or in the name of
a
Book-Entry System, Securities Depository or any nominee of either
thereof. The records of the Custodian with respect to foreign
securities of the Fund that are maintained with a Sub-Custodian
in an
account that is identified as belonging to the Custodian for the
benefit
of its customers shall identify those securities as belonging to
the
Fund. The Fund shall furnish to the Custodian appropriate
instruments to enable the Custodian to hold or deliver in proper
form for
transfer, or to register in the name of any of the nominees referred
to
above or in the name of a Book-Entry System or Securities Depository,
any
Securities registered in the name of the
Fund.
|
3.10
|
Records.
|
(a)
|
The
Custodian shall maintain complete and accurate records with respect
to
Securities, cash or other property held for the Fund, including
(i)
journals or other records of original entry containing an itemized
daily
record in detail of all receipts and deliveries of Securities and
all
receipts and disbursements of cash; (ii) ledgers (or other records)
reflecting (A) Securities in transfer, (B) Securities in physical
possession, (C) monies and Securities borrowed and monies and Securities
loaned (together with a record of the collateral and substitutions
of such
collateral), (D) dividends and interest received, and (E) dividends
receivable and interest receivable; and (iii) canceled checks
and bank records related thereto. The Custodian shall keep such
other books and records of the Funds as the Funds shall reasonably
request, or as may be required by the 1940 Act, including, but
not limited
to, Section 31 of the 1940 Act and Rules 31a-1 and 31a-2 promulgated
thereunder.
|
(b)
|
All
such books and records maintained by the Custodian shall (i) be
maintained
in a form acceptable to the Fund and in compliance with the rules
and
regulations of the SEC, (ii) be the property of the Fund and at
all times
during the regular business hours
|
10
|
of
the Custodian be made available upon request for inspection
by duly
authorized officers, employees or agents of the Fund and employees
or
agents of the SEC, and (iii) if required to be maintained by
Rule 31a-1
under the 1940 Act, be preserved for the periods prescribed
in Rule 31a-2
under the 0000 Xxx.
|
3.11
|
Fund
Reports by Custodian. The Custodian shall furnish the Funds
with a daily activity statement and a summary of all transfers
to or from
each Fund Custody Account on the day following such
transfers. At least monthly, the Custodian shall furnish the
Funds with a detailed statement of the Securities and moneys held
by the
Custodian and the Sub-Custodians for the Fund under this
Agreement.
|
3.12
|
Other
Reports by Custodian. As the Funds may reasonably request
from time to time, the Custodian shall provide the Fund with reports
on
the internal accounting controls and procedures for safeguarding
Securities which are employed by the Custodian or any
Sub-Custodian.
|
3.13
|
Proxies
and Other Materials. The Custodian shall cause all proxies
relating to Securities which are not registered in the name of
the Fund to
be promptly executed by the registered holder of such Securities,
without
indication of the manner in which such proxies are to be voted,
and shall
promptly deliver to the Funds such proxies, all proxy soliciting
materials
and all notices relating to such Securities. With respect to
the foreign Securities, the Custodian will use reasonable commercial
efforts to facilitate the exercise of voting and other shareholder
rights,
subject to the laws, regulations and practical constraints that
may exist
in the country where such securities are issued. The Funds
acknowledge that local conditions, including lack of regulation,
onerous
procedural obligations, lack of notice and other factors may have
the
effect of severely limiting the ability of the Funds to exercise
shareholder rights.
|
3.14
|
Information
on Corporate Actions. The Custodian shall promptly deliver
to the Fund all information received by the Custodian and pertaining
to
Securities being held by the Fund with respect to optional tender
or
exchange offers, calls for redemption or purchase, or expiration
of rights
as described in the Standards of Service Guide attached as Exhibit
B. If the Funds desire to take action with respect to any
tender offer, exchange offer or other similar transaction, the
Funds shall
notify the Custodian at least five Business Days prior to the date
on
which the Custodian is to take such action. The Funds will
provide or cause to be provided to the Custodian all relevant information
for any Security which has unique put/option provisions at least
five
Business Days prior to the beginning date of the tender
period.
|
ARTICLE
IV
PURCHASE
AND SALE OF INVESTMENTS OF THE FUND
4.1
|
Purchase
of Securities. Promptly upon each purchase of Securities
for the Fund, Written Instructions shall be delivered to the Custodian,
specifying (i) the name of the issuer or writer of such Securities,
and
the title or other description thereof, (ii) the number of shares,
principal amount (and accrued interest, if any) or other units
purchased,
(iii) the date of purchase and settlement, (iv) the purchase price
per
unit, (v) the total amount payable upon such purchase, and (vi)
the name
of the person to whom such amount is payable. The Custodian
shall upon receipt of such Securities purchased by the Fund pay
out of the
moneys held for the account of the Fund the total amount specified
in such
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 Securities for the Fund, if in the Fund Custody Account
there
is insufficient cash available to the Fund for which such purchase
was
made.
|
11
4.2
|
Liability
for Payment in Advance of Receipt of Securities
Purchased. In any and every case where payment for the
purchase of Securities for the Fund is made by the Custodian in
advance of
receipt of the Securities purchased and in the absence of specified
Written Instructions to so pay in advance, the Custodian shall
be liable
to the Fund for such payment.
|
4.3
|
Sale
of Securities. Promptly upon each sale of Securities by the
Fund, Written Instructions shall be delivered to the Custodian,
specifying
(i) the name of the issuer or writer of such Securities, and the
title or
other description thereof, (ii) the number of shares, principal
amount
(and accrued interest, if any), or other units sold, (iii) the
date of
sale and settlement, (iv) the sale price per unit, (v) the total
amount
payable upon such sale, and (vi) the person to whom such Securities
are to
be delivered. Upon receipt of the total amount payable to the
Fund as specified in such Written Instructions, the Custodian shall
deliver such Securities to the person specified in such 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.
|
4.4
|
Delivery
of Securities Sold. Notwithstanding Section 4.3 above or
any other provision of this Agreement, the Custodian, when instructed
to
deliver Securities against payment, shall be entitled, if in accordance
with generally accepted market practice, to deliver such Securities
prior
to actual receipt of final payment therefor. In any such case,
the Fund shall bear the risk that final payment for such Securities
may
not be made or that such Securities may be returned or otherwise
held or
disposed of by or through the person to whom they were delivered,
and the
Custodian shall have no liability for any for the
foregoing.
|
4.5
|
Payment
for Securities Sold. In its sole discretion and from time
to time, the Custodian may credit the Fund Custody Account, prior
to
actual receipt of final payment thereof, with (i) proceeds from
the sale
of Securities which it has been instructed to deliver against payment,
(ii) proceeds from the redemption of Securities or other assets
of the
Fund, and (iii) income from cash, Securities or other assets of
the
Fund. Any such credit shall be conditional upon actual receipt
by Custodian of final payment and may be reversed if final payment
is not
actually received in full. The Custodian may, in its sole
discretion and from time to time, permit the Fund to use funds
so credited
to the Fund Custody Account in anticipation of actual receipt of
final
payment. Any such funds shall be repayable immediately upon
demand made by the Custodian at any time prior to the actual receipt
of
all final payments in anticipation of which funds were credited
to the
Fund Custody Account.
|
4.6
|
Advances
by Custodian for Settlement. The Custodian may, in its sole
discretion and from time to time, advance funds to the Fund to
facilitate
the settlement of a Fund’s transactions in the Fund Custody
Account. Any such advance shall be repayable immediately upon
demand made by Custodian.
|
ARTICLE
V
REPURCHASE
OF FUND SHARES
5.1
|
Transfer
of Funds. From such funds as may be available for the
purpose in the relevant Fund Custody Account, and upon receipt
of Proper
Instructions specifying that the funds are required to repurchase
Shares
of the Fund pursuant to a tender offer, the Custodian shall wire
each
amount specified in such Proper Instructions to or through such
bank or
broker-dealer as the Funds may
designate.
|
12
5.2
|
No
Duty Regarding Paying Banks. Once the Custodian has wired
amounts to a bank or broker-dealer pursuant to Section 5.1 above, the
Custodian shall not be under any obligation to effect any further
payment
or distribution by such bank or
broker-dealer.
|
ARTICLE
VI
SEGREGATED
ACCOUNTS
Upon
receipt of Proper Instructions, the Custodian shall establish and maintain
a
segregated account or accounts for and on behalf of the Fund, into which
account
or accounts may be transferred cash and/or Securities, including Securities
maintained in a Depository Account:
(a)
|
in
accordance with the provisions of any agreement among the Funds,
the
Custodian and a broker-dealer registered under the 1934 Act and
a member
of the NASD (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 (or the Commodity Futures Trading Commission or any registered
contract market), or of any similar organization or organizations,
regarding escrow or other arrangements in connection with transactions
by
the Fund;
|
(b)
|
for
purposes of segregating cash or Securities in connection with securities
options purchased or written by the Fund or in connection with
financial
futures contracts (or options thereon) purchased or sold by the
Fund;
|
(c)
|
which
constitute collateral for loans of Securities made by the
Fund;
|
(d)
|
for
purposes of compliance by the Fund with requirements under the
1940 Act
for the maintenance of segregated accounts by registered investment
companies in connection with reverse repurchase agreements and
when-issued, delayed delivery and firm commitment transactions;
and
|
(e)
|
for
other proper corporate purposes, but only upon receipt of, in addition
to
Proper Instructions, a certified copy of a resolution of the Board,
certified by an Officer, setting forth the purpose or purposes
of such
segregated account and declaring such purposes to be proper corporate
purposes.
|
Each
segregated account established under this Article VI shall be established
and
maintained for the Fund only. All Proper Instructions relating to a
segregated account shall specify the Fund.
ARTICLE
VII
COMPENSATION
OF CUSTODIAN
|
7.1
|
Compensation. The
Custodian shall be compensated for providing the services set forth
in
this Agreement in accordance with the fee schedule set forth on
Exhibit
C hereto (as amended from time to time). The
Custodian shall also be compensated for such out-of-pocket expenses
(e.g.,
telecommunication charges, postage and delivery charges, and reproduction
charges) as are reasonably incurred by the Custodian in performing
its
duties hereunder. The Funds shall pay all such fees and
reimbursable expenses within 30 calendar days following receipt
of the
billing notice, except for any fee or expense subject to a good
faith
dispute. The Funds shall notify the Custodian in writing within
30 calendar days
|
13
|
|
following
receipt of the billing notice, except for any fee or expense
subject to a
good faith dispute. The Funds shall notify the Custodian in
writing within 30 calendar days following receipt of each invoice
if the
Fund is disputing any amounts in good faith. The Funds shall
pay such disputed amounts within 10 calendar days of the day
on which the
parties agree to the amount to be paid. With the exception of
any fee or expense the Fund is disputing in good faith as set
forth above,
unpaid invoices shall accrue a finance charge of 1½% per month after the
due date. Notwithstanding anything to the contrary, amounts
owed by the Fund to the Custodian shall only be paid out of
the assets and
property of the particular Fund
involved.
|
ARTICLE
VIII
REPRESENTATIONS
AND WARRANTIES
8.1
|
Representations
and Warranties of the Funds. Each of the Funds
hereby represents and warrants to the Custodian, which representations
and
warranties shall be deemed to be continuing throughout the term
of this
Agreement, that:
|
(a)
|
It
is duly organized and existing under the laws of the jurisdiction
of its
organization, with full power to carry on its business as now conducted,
to enter into this Agreement and to perform its obligations
hereunder;
|
(b)
|
This
Agreement has been duly authorized, executed and delivered by the
Fund in
accordance with all requisite action and constitutes a valid and
legally
binding obligation of the Fund, enforceable in accordance with
its terms,
subject to bankruptcy, insolvency, reorganization, moratorium and
other
laws of general application affecting the rights and remedies of
creditors
and secured parties; and
|
(c)
|
It
is conducting its business in compliance in all material respects
with all
applicable laws and regulations, both state and federal, and has
obtained
all regulatory approvals necessary to carry on its business as
now
conducted; there is no statute, rule, regulation, order or judgment
binding on it and no provision of its charter, bylaws or any contract
binding it or affecting its property which would prohibit its execution
or
performance of this Agreement.
|
8.2
|
Representations
and Warranties of the Custodian. The Custodian hereby
represents and warrants to the Funds, which representations and
warranties
shall be deemed to be continuing throughout the term of this Agreement,
that:
|
(a)
|
It
is duly organized and existing under the laws of the jurisdiction
of its
organization, with full power to carry on its business as now conducted,
to enter into this Agreement and to perform its obligations
hereunder;
|
(b)
|
This
Agreement has been duly authorized, executed and delivered by the
Custodian in accordance with all requisite action and constitutes
a valid
and legally binding obligation of the Custodian, enforceable in
accordance
with its terms, subject to bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting the
rights and
remedies of creditors and secured parties;
and
|
(c)
|
It
is conducting its business in compliance in all material respects
with all
applicable laws and regulations, both state and federal, and has
obtained
all regulatory approvals necessary to carry on its business as
now
conducted; there is no statute, rule, regulation, order or judgment
binding on it and no provision of its charter,
|
14
|
bylaws
or any contract binding it or affecting its property which
would prohibit
its execution or performance of this
Agreement.
|
ARTICLE
IX
CONCERNING
THE CUSTODIAN
9.1
|
Standard
of Care. The Custodian shall exercise the due care of a
professional custodian for hire, which, in any event, shall not
be less
than a standard of reasonable care, in the performance of its duties
under
this Agreement. The Custodian shall not be liable for any error
of judgment or mistake of law or for any loss suffered by the Fund
in
connection with its duties under this Agreement, except a loss
arising out
of or relating to the Custodian’s (or a Sub-Custodian’s) refusal or
failure to comply with the terms of this Agreement (or any sub-custody
agreement) or from its (or a Sub-Custodian’s) bad faith, negligence or
willful misconduct in the performance of its duties under this
Agreement
(or any sub-custody agreement). The Custodian shall be entitled
to rely on and may act upon advice of counsel on all matters, and
shall be
without liability for any action reasonably taken or omitted pursuant
to
such advice. The Custodian shall promptly notify the Funds of
any action taken or omitted by the Custodian pursuant to advice
of
counsel.
|
9.2
|
Actual
Collection Required. The Custodian shall not be liable for,
or considered to be the custodian of, any cash belonging to the
Fund or
any money represented by a check, draft or other instrument for
the
payment of money, until the Custodian or its agents actually receive
such
cash or collect on such instrument.
|
9.3
|
No
Responsibility for Title, etc. So long as and to the extent
that it is in the exercise of care required hereunder, the Custodian
shall
not be responsible for the title, validity or genuineness of any
property
or evidence of title thereto received or delivered by it pursuant
to this
Agreement.
|
9.4
|
Limitation
on Duty to Collect. Custodian shall not be required to
enforce collection, by legal means or otherwise, of any money or
property
due and payable with respect to Securities held for the Fund if
such
Securities are in default or payment is not made after due demand
or
presentation.
|
9.5
|
Reliance
Upon Documents and Instructions. The Custodian shall be
entitled to rely upon any certificate, notice or other instrument
in
writing received by it and reasonably believed by it to be
genuine. The Custodian shall be entitled to rely upon any Oral
Instructions and any Written Instructions actually received by
it pursuant
to this Agreement.
|
9.6
|
Cooperation. The
Custodian shall cooperate with and supply necessary information
to the
entity or entities appointed by the Funds to keep the books of
account of
the Funds and/or compute the value of the assets of the
Funds. The Custodian shall take all such reasonable actions as
the Fund may from time to time request to enable the Fund to obtain,
from
year to year, favorable opinions from the Funds’ independent accountants
with respect to the Custodian's activities hereunder in connection
with
(i) the preparation of the Funds statements and reports on Form
N-2, Form
N-CSR and Form N-SAR and any other statements and reports required
by the
SEC, and (ii) the fulfillment by the Funds of any other requirements
of
the SEC, including, without limitation, the following requirements
(which
shall be in addition to any other special requirements to which
the Funds
may be subject under applicable written “no-action” positions of the staff
of the SEC):
|
15
The
Custodian, in cooperation with the Fund’s administrator or
sub-administrator, shall oversee the receipt and acceptance of Fund
investor monies, which will be placed in an escrow or other custodial account
and moved to the Master Fund's custodial account for investment.
ARTICLE
X
INDEMNIFICATION
10.1
|
Indemnification
by Funds. The Funds shall indemnify and hold
harmless the Custodian, any Sub-Custodian and any nominee thereof
(each,
an “Indemnified Party” and collectively, the “Indemnified Parties”) from
and against any and all claims, demands, losses, expenses and liabilities
of any and every nature (including reasonable attorneys' fees)
that an
Indemnified Party may sustain or incur or that may be asserted
against an
Indemnified Party by any person arising directly or indirectly
(i) from
the fact that Securities are registered in the name of any such
nominee,
(ii) from any action taken or omitted to be taken by the Custodian
or such
Sub-Custodian (a) at the request or direction of or in reliance
on the
advice of the Fund, or (b) upon Proper Instructions, or (iii) from
the
performance of its obligations under this Agreement or any sub-custody
agreement, provided that neither the Custodian nor any such Sub-Custodian
shall be indemnified and held harmless from and against any such
claim,
demand, loss, expense or liability arising out of or relating to
its
refusal or failure to comply with the terms of this Agreement (or
any
sub-custody agreement), or from its bad faith, negligence or willful
misconduct in the performance of its duties under this Agreement
(or any
sub-custody agreement). This indemnity shall be a continuing
obligation of the Funds, their successors and assigns, notwithstanding
the
termination of this Agreement. As used in this paragraph, the
terms “Custodian” and “Sub-Custodian” shall include their respective
directors, officers and employees.
|
10.2
|
Indemnification
by Custodian. The Custodian shall indemnify and hold
harmless the Funds from and against any and all claims, demands,
losses,
expenses, and liabilities of any and every nature (including reasonable
attorneys’ fees) that the Funds may sustain or incur or that may be
asserted against the Fund by any person arising out of any action
taken or
omitted to be taken by an Indemnified Party as a result of the
Indemnified
Party’s refusal or failure to comply with the terms of this Agreement
(or
any sub-custody agreement), or from its bad faith, negligence or
willful
misconduct in the performance of its duties under this Agreement
(or any
sub-custody agreement). This indemnity shall be a continuing
obligation of the Custodian, its successors and assigns, notwithstanding
the termination of this Agreement. As used in this paragraph,
the term “Fund” shall include the Fund’s directors, officers and
employees.
|
10.3
|
Security. If
the Custodian advances cash or Securities to the Fund for any purpose,
either at the Fund's request or as otherwise contemplated in this
Agreement, or in the event that the Custodian or its nominee incurs,
in
connection with its performance under this Agreement, any claim,
demand,
loss, expense or liability (including reasonable attorneys' fees)
(except
such as may arise from its or its nominee's bad faith, negligence
or
willful misconduct), then, in any such event, any property at any
time
held for the account of the Fund shall be security therefor, and
should
the Fund fail promptly to repay or indemnify the Custodian, the
Custodian
shall be entitled to utilize available cash of such Fund and to
dispose of
other assets of such Fund to the extent necessary to obtain reimbursement
or indemnification.
|
10.4
|
Miscellaneous.
|
16
(a)
|
Neither
party to this Agreement shall be liable to the other party for
consequential, special or punitive damages under any provision
of this
Agreement.
|
(b)
|
The
indemnity provisions of this Article shall indefinitely survive
the
termination and/or assignment of this
Agreement.
|
(c)
|
In
order that the indemnification provisions contained in this Article
shall
apply, it is understood that if in any case the indemnitor may
be asked to
indemnify or hold the indemnitee harmless, the indemnitor shall
be fully
and promptly advised of all pertinent facts concerning the situation
in
question, and it is further understood that the indemnitee will
use all
reasonable care to notify the indemnitor promptly concerning any
situation
that presents or appears likely to present the probability of a
claim for
indemnification. The indemnitor shall have the option to defend
the
indemnitee against any claim that may be the subject of this
indemnification. In the event that the indemnitor so elects, it
will so notify the indemnitee and thereupon the indemnitor shall
take over
complete defense of the claim, and the indemnitee shall in such
situation
initiate no further legal or other expenses for which it shall
seek
indemnification under this section. The indemnitee shall in no
case confess any claim or make any compromise in any case in which
the
indemnitor will be asked to indemnify the indemnitee except with
the
indemnitor’s prior written consent.
|
ARTICLE
XI
FORCE
MAJEURE
Neither
the Custodian nor the Funds shall be liable for any failure or delay in
performance of its obligations under this Agreement arising out of or caused,
directly or indirectly, by circumstances beyond its reasonable control,
including, without limitation, acts of God; earthquakes; fires; floods; wars;
civil or military disturbances; acts of terrorism; sabotage; strikes; epidemics;
riots; power failures; computer failure and any such circumstances beyond
its
reasonable control as may cause interruption, loss or malfunction of utility,
transportation, computer (hardware or software) or telephone communication
service; accidents; labor disputes; acts of civil or military authority;
governmental actions; or inability to obtain labor, material, equipment or
transportation; provided, however, that in the event of a failure or delay,
the
Custodian (i) shall not discriminate against the Fund in favor of any other
customer of the Custodian in making computer time and personnel available
to
input or process the transactions contemplated by this Agreement, and (ii)
shall
use its best efforts to ameliorate the effects of any such failure or
delay.
ARTICLE
XII
PROPRIETARY
AND CONFIDENTIAL INFORMATION
The
Custodian agrees on behalf of itself and its directors, officers, and employees
to treat confidentially and as proprietary information of the Fund, all records
and other information relative to the Fund and prior, present, or potential
shareholders of the Fund (and clients of said shareholders), and not to use
such
records and information for any purpose other than the performance of its
responsibilities and duties hereunder, except (i) after prior notification
to
and approval in writing by the Fund, which approval shall not be unreasonably
withheld and may not be withheld where the Custodian may be exposed to civil
or
criminal contempt proceedings for failure to comply, (ii) when requested
to
divulge such information by duly constituted authorities, or (iii) when so
requested by the Fund. Records and other information which have
become known to the public through no wrongful act of the Custodian or any
of
its employees, agents or representatives, and information that was already
in
the possession of the Custodian prior to receipt thereof from the Fund or
its
agent, shall not be subject to this paragraph.
17
Further,
the Fund will adhere to the privacy policies adopted by the Fund pursuant
to
Title V of the Xxxxx-Xxxxx-Xxxxxx Act, as may be modified from time to
time. In this regard, the Custodian shall have in place and maintain
physical, electronic and procedural safeguards reasonably designed to protect
the security, confidentiality and integrity of, and to prevent unauthorized
access to or use of, records and information relating to the Fund and its
shareholders.
ARTICLE
XIII
EFFECTIVE PERIOD; TERMINATION
EFFECTIVE PERIOD; TERMINATION
13.1
|
Effective
Period. This Agreement shall become effective as of the
date first written above and will continue in effect for a period
of one
(1) year.
|
13.2
|
Termination. Subsequent
to the initial one-year term, this Agreement may be terminated
by either
party upon giving 90 days prior written notice to the other party
or such
shorter period as is mutually agreed upon by the
parties. Notwithstanding the foregoing, this Agreement may be
terminated by any party upon the breach of the other party of any
material
term of this Agreement if such breach is not cured within 15 days
of
notice of such breach to the breaching party. In addition, the
Funds may, at any time, immediately terminate this Agreement in
the event
of the appointment of a conservator or receiver for the Custodian
by
regulatory authorities or upon the happening of a like event at
the
direction of an appropriate regulatory agency or court of competent
jurisdiction.
|
13.3
|
Early
Termination. In the absence of any material breach of this
agreement, should the Funds elect to terminate this agreement
prior to the
end of the term, the Funds agree to pay the following
fees:
|
(i) All
monthly fees through the remaining term of this
Agreement;
(ii) All fees associated with converting services to successor service provider;
(iii) All fees associated with any record retention and/or tax reporting obligations that may not be eliminated due to the conversion to a successor service provider;
(iv) All out-of-pocket costs associated with (i)-(iii) above.
(ii) All fees associated with converting services to successor service provider;
(iii) All fees associated with any record retention and/or tax reporting obligations that may not be eliminated due to the conversion to a successor service provider;
(iv) All out-of-pocket costs associated with (i)-(iii) above.
13.4
|
Appointment
of Successor Custodian. If a successor custodian shall have
been appointed by the Board, the Custodian shall, upon receipt
of a notice
of acceptance by the successor custodian, on such specified date
of
termination (i) deliver directly to the successor custodian all
Securities
(other than Securities held in a Book-Entry System or Securities
Depository) and cash then owned by the Fund and held by the Custodian
as
custodian, and (ii) transfer any Securities held in a Book-Entry
System or
Securities Depository to an account of or for the benefit of the
Fund at
the successor custodian, provided that the Fund shall have paid
to the
Custodian all fees, expenses and other amounts to the payment or
reimbursement of which it shall then be entitled. In addition,
the Custodian shall, at the expense of the Fund, transfer to such
successor all relevant books, records, correspondence, and other
data
established or maintained by the Custodian under this Agreement
in a form
reasonably acceptable to the Fund (if such form differs from the
form in
which the Custodian has maintained the same, the Fund shall pay
any
expenses associated with transferring the data to such form), and
will
cooperate in the transfer of such duties and responsibilities,
including
provision for assistance from the Custodian’s personnel in the
establishment of books, records, and other data by such
successor. Upon such delivery and transfer, the Custodian shall
be relieved of all obligations under this
Agreement.
|
13.5
|
Failure
to Appoint Successor Custodian. If a successor custodian is
not designated by the Fund on or before the date of termination
of this
Agreement, then the Custodian shall have
|
18
the
right to
deliver to a bank or trust company of its own selection, which bank or
trust
company (i) is a “bank” as defined in the 1940 Act, and (ii) has aggregate
capital, surplus and undivided profits as shown on its most recent published
report of not less than $25 million, all Securities, cash and other property
held by Custodian under this Agreement and to transfer to an account of
or for
the Fund at such bank or trust company all Securities of the Fund held
in a
Book-Entry System or Securities Depository. Upon such delivery and
transfer, such bank or trust company shall be the successor custodian under
this
Agreement and the Custodian shall be relieved of all obligations under
this
Agreement. In addition, under these circumstances, all books, records
and other data of the Fund shall be returned to the Fund.
ARTICLE
XIV
MISCELLANEOUS
14.1
|
Limitation
of Liability. It is expressly agreed that the obligations
of any Fund hereunder shall not be binding upon any of the trustees,
directors, shareholders, nominees, officers, agents or employees
of any
Fund personally, but shall bind only the property of the Fund as
provided
in the Master Fund's and the Fund’s declaration of trust or in the
Offshore Fund’s memorandum and articles of association, as applicable,
each as from time to time amended. The execution and delivery
of this Agreement have been authorized by the trustees of the Fund
and the
Master Fund and the directors of the Offshore Fund, and this Agreement
has
been signed and delivered by an authorized officer of each Fund,
acting as
such, and neither such authorization by the trustees of the Fund
and the
Master Fund and the directors of the Offshore Fund, as applicable,
nor
such execution and delivery by such officer shall be deemed to
have been
made by any of them individually or to impose any liability on
any of them
personally, but shall bind only the property of the Fund as provided
in
the Master Fund's and the Fund’s above-mentioned declaration of trust or
in the Offshore Fund’s above-mentioned memorandum and articles of
association, as applicable.
|
14.2
|
Compliance
with Laws. The Fund has and retains primary responsibility
for all compliance matters relating to the Fund, including but
not limited
to compliance with the 1940 Act, the Internal Revenue Code of 1986,
the
Xxxxxxxx-Xxxxx Act of 2002, the USA Patriot Act of 2002 and the
policies
and limitations of the Fund relating to its portfolio investments
as set
forth in its Prospectus and statement of additional
information. The Custodian’s services hereunder shall not
relieve the Fund of its responsibilities for assuring such compliance
or
the Board’s oversight responsibility with respect
thereto.
|
14.3
|
Amendment. This
Agreement may not be amended or modified in any manner except by
written
agreement executed by the Custodian and the Fund, and authorized
or
approved by the Board.
|
14.4
|
Assignment. This
Agreement shall extend to and be binding upon the parties hereto
and their
respective successors and assigns; provided, however, that this
Agreement
shall not be assignable by the Fund without the written consent
of the
Custodian, or by the Custodian without the written consent of the
Fund
accompanied by the authorization or approval of the
Board.
|
14.5
|
Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Ohio, without regard to
conflicts
of law principles. To the extent that the applicable laws of
the State of Ohio, or any of the provisions herein, conflict with
the
applicable provisions of the 1940 Act, the latter shall control,
and
nothing herein shall be
|
19
construed
in
a manner inconsistent with the 1940 Act or any rule or order of the SEC
thereunder.
14.6
|
No
Agency Relationship. Nothing herein contained shall be
deemed to authorize or empower either party to act as agent for
the other
party to this Agreement, or to conduct business in the name, or
for the
account, of the other party to this
Agreement.
|
14.7
|
Services
Not Exclusive. Nothing in this Agreement shall limit or
restrict the Custodian from providing services to other parties
that are
similar or identical to some or all of the services provided
hereunder.
|
14.8
|
Invalidity. Any
provision of this Agreement which may be determined by competent
authority
to be prohibited or unenforceable in any jurisdiction shall, as
to such
jurisdiction, be ineffective to the extent of such prohibition
or
unenforceability without invalidating the remaining provisions
hereof, and
any such prohibition or unenforceability in any jurisdiction shall
not
invalidate or render unenforceable such provision in any other
jurisdiction. In such case, the parties shall in good faith
modify or substitute such provision consistent with the original
intent of
the parties.
|
14.9
|
Notices. Any
notice required or permitted to be given by either party to the
other
shall be in writing and shall be deemed to have been given on the
date
delivered personally or by courier service, or three days after
sent by
registered or certified mail, postage prepaid, return receipt requested,
or on the date sent and confirmed received by facsimile transmission
to
the other party’s address set forth
below:
|
Notice
to
the Custodian shall be sent to:
U.S.
Bank
National Association
000
Xxxxxx Xxxxxx, X.X. XX-XX-X0XX
Xxxxxxxxxx,
Xxxx 00000
Attention: Mutual
Fund Custody Services
Facsimile: (000)
000-0000
and
notice to the Funds shall be sent to:
[name
of
applicable Fund(s)]
c/o
Allegiance Capital
000
Xxxxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx
Xxxxx, XX 00000
Attention: President
Facsimile: (000)
000-0000
14.10
|
Rights
and Obligations of Each Fund. No Fund shall receive any
rights or have any liabilities arising from any action or inaction
of any
other Fund under this Agreement.
|
14.11
|
Multiple
Originals. This Agreement may be executed on two or more
counterparts, each of which when so executed shall be deemed an
original,
but such counterparts shall together constitute but one and the
same
instrument.
|
14.12
|
No
Waiver. No failure by either party hereto to exercise, and
no delay by such party in exercising, any right hereunder shall
operate as
a waiver thereof. The exercise by either
|
20
party
hereto
of any right hereunder shall not preclude the exercise of any other right,
and
the remedies provided herein are cumulative and not exclusive of any remedies
provided at law or in equity.
14.13
|
References
to Custodian. The Fund shall not circulate any printed
matter which contains any reference to Custodian without the prior
written
approval of Custodian, excepting printed matter contained in the
prospectus or statement of additional information for the Fund
and such
other printed matter as merely identifies Custodian as custodian
for the
Fund. The Fund shall submit printed matter requiring approval
to Custodian in draft form, allowing sufficient time for review
by
Custodian and its counsel prior to any deadline for
printing.
|
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by
a duly authorized officer on one or more counterparts as of the date first
above
written.
A
T FUND OF FUNDS
TEI A
T FUND OF FUNDS LTD.
By:________________________________ By:_______________________________
Name:______________________________ Name:_____________________________
Title:_______________________________ Title:______________________________
A
T FUND OF
FUNDS U.S.
BANK NATIONAL ASSOCIATION
the
sole
series of A T Funds Investment Trust
By:________________________________ By:_______________________________
Name:______________________________ Name:_____________________________
Title:_______________________________ Title:______________________________
21
EXHIBIT
A
AUTHORIZED
PERSONS
Set
forth below are the names and specimen signatures of the persons authorized
by
the Funds to administer the Fund Custody Accounts.
Authorized
Persons
|
Specimen
Signatures
|
|
President: Xxxx
X. Xxxxxxx
|
||
Secretary
and Treasurer: Xxxxxxxxx X. Popof
|
||
Chief
Compliance Officer: Xxxxxx X. Xxxxxxxx
|
||
Vice
President:
|
||
Other:
|
||
22
EXHIBIT
B
U.S.
Bank Institutional Custody Services
Standards
of Service Guide
U.S.
Bank, N.A. (“USBank”) is committed to providing superior quality service to all
customers and their agents at all times. We have compiled this guide
as a tool for our clients to determine our standards for the processing of
security settlements, payment collection, and capital change
transactions. Deadlines recited in this guide represent the times
required for USBank to guarantee processing. Failure to meet these
deadlines will result in settlement at our client's risk. In all
cases, USBank will make every effort to complete all processing on a timely
basis.
USBank
is
a direct participant of the Depository Trust Company, a direct member of
the
Federal Reserve Bank of Cleveland, and utilizes the Bank of New York as its
agent for ineligible and foreign securities.
For
corporate reorganizations, USBank utilizes SEI's Reorg Source, Financial
Information, Inc., XCITEK, DTC Important Notices, Capital Changes Daily (CCH)
and the Wall Street Journal.
For
bond
calls and mandatory puts, USBank utilizes SEI's Bond Source, Xxxxx Information
Systems, Standard & Poor's Corporation, XCITEK, and DTC Important
Notices. USBank will not notify clients of optional put
opportunities.
Any
securities delivered free to USBank or its agents must be received three
(3)
business days prior to any payment or settlement in order for the USBank
standards of service to apply.
Should
you have any questions regarding
the information contained in this guide, please feel free to contact your
account representative.
The
information contained in this Standards of Service Guide is subject to
change.
Should any changes be made USBank will provide you with an updated copy of its
Standards of Service Guide.
Should any changes be made USBank will provide you with an updated copy of its
Standards of Service Guide.
USBank
Security Settlement Standards
Transaction
Type
|
Instructions
Deadlines*
|
Delivery
Instructions
|
DTC
|
1:30
P.M. on Settlement Date
|
DTC
Participant #0000
Xxxxx
Xxxx XX 00000
Institutional
#________________
For
Account #____________
|
Federal
Reserve Book Entry
|
12:30
P.M. on Settlement Date
|
Federal
Reserve Bank of Cleveland
for
Firstar Bank, N.A. ABA# 000000000
CINTI/1050
For
Account #_____________
|
Federal
Reserve Book Entry (Repurchase Agreement Collateral Only)
|
1:00
P.M. on Settlement Date
|
Federal
Reserve Bank of Cleveland
for
Firstar Bank, N.A. ABA# 000000000
CINTI/1040
For
Account #_____________
|
PTC
Securities
(GNMA
Book Entry)
|
12:00
P.M. on Settlement Date
|
PTC
For Account BYORK
Firstar
Bank / 117612
|
Physical
Securities
|
9:30
A.M. EST on Settlement Date
(for
Deliveries, by 4:00 P.M. on Settlement Date minus 1)
|
Bank
of New York
One
Xxxx Xxxxxx- 0xx
Xxxxx –
Window A
Xxx
Xxxx, XX 00000
For
account of Firstar Bank / Cust #117612
Attn:
Xxxxxx Xxxxxx
|
CEDEL/EURO-CLEAR
|
11:00
A.M. on Settlement Date minus 2
|
Cedel
a/c 55021
FFC:
a/c 387000
Firstar
Bank /Global Omnibus
Euroclear
a/c 97816
FFC: a/c
387000
Firstar
Bank/Global Omnibus
|
Cash
Wire Transfer
|
3:00
P.M.
|
Firstar
Bank, X.X. Xxxxx/Trust ABA# 000000000
Credit
Account #112950027
Account
of Firstar Trust Services
Further
Credit to ___________
Account
# _______________
|
* All
times listed are Eastern Standard Time.
USBank
Payment Standards
Security
Type
|
Income
|
Principal
|
Equities
|
Payable
Date
|
|
Municipal
Bonds*
|
Payable
Date
|
Payable
Date
|
Corporate
Bonds*
|
Payable
Date
|
Payable
Date
|
Federal
Reserve Bank Book Entry*
|
Payable
Date
|
Payable
Date
|
PTC
GNMA's (P&I)
|
Payable
Date + 1
|
Payable
Date + 1
|
CMOs
*
|
||
DTC
|
Payable
Date + 1
|
Payable
Date + 1
|
Bankers
Trust
|
Payable
Date + 1
|
Payable
Date + 1
|
SBA
Loan Certificates
|
When
Received
|
When
Received
|
Unit
Investment Trust Certificates*
|
Payable
Date
|
Payable
Date
|
Certificates
of Deposit*
|
Payable
Date + 1
|
Payable
Date + 1
|
Limited
Partnerships
|
When
Received
|
When
Received
|
Foreign
Securities
|
When
Received
|
When
Received
|
*Variable
Rate Securities
|
||
Federal
Reserve Bank Book Entry
|
Payable
Date
|
Payable
Date
|
DTC
|
Payable
Date + 1
|
Payable
Date + 1
|
Bankers
Trust
|
Payable
Date + 1
|
Payable
Date + 1
|
|
NOTE:
|
If
a payable date falls on a weekend or bank holiday, payment will
be made on
the immediately following business
day.
|
USBank
Corporate Reorganization Standards
Type
of Action
|
Notification to
Client
|
Deadline
for Client Instructions
to
USBank
|
Transaction
Posting
|
|
Rights,
Warrants,
and
Optional Mergers
|
Later
of 10 business days prior to expiration or receipt of
notice
|
5
business days prior to expiration
|
Upon
receipt
|
|
Mandatory
Puts with
Option
to Retain
|
Later
of 10 business days prior to expiration or receipt of
notice
|
5
business days prior to expiration
|
Upon
receipt
|
|
Class
Actions
|
10
business days prior to expiration date
|
5
business days prior to expiration
|
Upon
receipt
|
|
Voluntary
Tenders,
Exchanges,
and
Conversions
|
Later
of 10 business days prior to expiration or receipt of
notice
|
5
business days prior to expiration
|
Upon
receipt
|
|
Mandatory
Puts, Defaults, Liquidations, Bankruptcies, Stock Splits, Mandatory
Exchanges
|
At
posting of funds or securities received
|
None
|
Upon
receipt
|
|
Full
and Partial Calls
|
Later
of 10 business days prior to expiration or receipt of
notice
|
None
|
Upon
receipt
|
NOTE: Fractional
shares/par amounts resulting from any of the above will be sold.
EXHIBIT
C
Fee
Schedule
DOMESTIC
CUSTODY SERVICES
FEE
SCHEDULE
|
Fee
Based Upon Market Value
A
monthly fee of one twelfth of 1.0 basis point of the net assets
of the
Master Fund as of the start of business on the first business day
of each
month, after adjustment for any subscriptions effective on that
date.
Minimum
annual fee of $8,000
Plus
portfolio transaction fees
Plus
Out-Of-Pocket Expenses– Including but not limited to expenses
incurred in the safekeeping, delivery and receipt of securities,
shipping,
transfer fees, extraordinary expenses based upon complexity, and
all other
out-of-pocket expenses.
Fees
are billed monthly and
payable in arrears subsequent to the closing of the books for each
month.
|