CUSTODY AGREEMENT
AGREEMENT, dated as of July
31, 2002, by and between AIP ALTERNATIVE STRATEGIES FUNDS
(the "Trust" or "Company"), a business trust organized and existing under
the laws of the State of Delaware, acting with respect to and on behalf of each
of the series of the series that are identified on Exhibit A hereto (each, a
"Portfolio"), and CUSTODIAL
TRUST COMPANY, a bank organized and existing under the laws of the State
of New Jersey (the "Custodian").
WHEREAS, the Trust desires
that the securities, funds and other assets of the Portfolios be held and
administered by Custodian pursuant to this Agreement;
WHEREAS, each Portfolio is an
investment portfolio represented by a series of Shares included among the shares
of beneficial interest issued by the Trust, an open-end management investment
company registered under the 1940 Act;
WHEREAS, Custodian represents
that it is a bank having the qualifications prescribed in the 1940 Act to act as
custodian for management investment companies registered under the 1940
Act;
NOW, THEREFORE, in
consideration of the mutual agreements herein made, the Trust and Custodian
hereby agree as follows:
ARTICLE
I
DEFINITIONS
Whenever
used in this Agreement, the following terms, unless the context otherwise
requires, shall mean:
1.1 "Authorized Person" means any person authorized
by resolution of the Board of Trustees to give Oral Instructions and Written
Instructions on behalf of the Trust and identified, by name or by office, in
Exhibit B hereto or any person designated to do so on behalf of a Portfolio by
the investment adviser of such Portfolio who is named by the Trust in Exhibit C
hereto.
1.2 "Board of Trustees" means the Board of Trustees
of the Trust or, when permitted under the 1940 Act, the Executive Committee
thereof, if any.
1.3 "Book-Entry System" means a book-entry system
maintained by a Federal Reserve Bank for securities of the United States
government or of agencies or instrumentalities thereof (including
government-sponsored enterprises).
1.4 "Business
Day" means any
day on which banks in the State of New Jersey and New York are open for
business.
1.5 "Custody
Account" means,
with respect to a Portfolio, the account in the name of such Portfolio, which is
provided for in Section 3.2 below.
1.6 "Domestic
Securities Depository" means The Depository Trust
Company and any other clearing agency registered with the Securities and
Exchange Commission under the Securities Exchange Act of 1934, which acts as a
securities depository.
1.7 "Eligible
Domestic Bank"
means a bank as defined in the 1940 Act.
1.8 "Eligible
Foreign Custodian" means any banking
institution, trust company or other entity organized under the laws of a country
other than the United States which is eligible under the 1940 Act to act as a
custodian for securities and other assets of a Portfolio held outside the United
States.
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1.9 "Eligible
Foreign Securities Depository" means an Eligible Securities Depository as
defined in Rule 17f-7 under the 1940 Act.
1.10 "Foreign
Custody Manager"
has the same meaning as in Rule 17f-5 under the 0000 Xxx.
1.11 "Foreign
Assets" has the same meaning as in Rule 17f-5 under the 1940
Act.
1.12 "Master
Repurchase Agreement" means the Master Repurchase
Agreement of even date herewith between the Trust and Bear, Xxxxxxx & Co.
Inc. as it may from time to time be amended.
1.13 "Master
Securities Loan Agreement" means the Master Securities
Loan Agreement of even date herewith between the Trust and Bear, Xxxxxxx
Securities Corp. as it may from time to time be amended.
1.14 "1940
Act" means the
Investment Company Act of 1940, as amended, and the rules and regulations
thereunder.
1.15 "Oral Instructions" means instructions orally
transmitted to and accepted by Custodian which are (a) reasonably
believed by Custodian to have been given by an Authorized Person, (b) recorded and kept
among the records of Custodian made in the ordinary course of business, and
(c) completed
in accordance with Custodian's requirements from time to time as to content of
instructions and their manner and timeliness of delivery.
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1.16 "Proper Instructions" means Oral Instructions or
Written Instructions. Proper Instructions may be continuing Written Instructions
when deemed appropriate by the Trust and Custodian.
1.17 "Securities
Depository" means
any Domestic Securities Depository or Eligible Foreign Securities
Depository.
1.18 "Shares" means, with respect to a
Portfolio, those shares in a series or class of beneficial interests of the
Trust that represent interests in such Portfolio.
1.19 "Written Instructions" means written instructions
received by Custodian that are (a) reasonably
believed by Custodian to have been signed or sent by an Authorized Person,
(b) sent or
transmitted by letter, facsimile, central processing unit connection, on-line
terminal or magnetic tape, and (c) completed in
accordance with Custodian's requirements from time to time as to content of
instructions and their manner and timeliness of delivery.
ARTICLE
II
APPOINTMENT OF
CUSTODIAN
2.1 Appointment. The Trust hereby appoints
Custodian as custodian of all such securities, funds and other assets of each
Portfolio as may be acceptable to Custodian and from time to time delivered to
it by the Trust or others for the account of such Portfolio.
2.2 Acceptance. Custodian hereby accepts
appointment as such custodian and agrees to perform the duties thereof as
hereinafter set forth.
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ARTICLE III
CUSTODY OF SECURITIES, FUNDS
AND OTHER ASSETS
3.1 Segregation. All securities and non-cash
property of a Portfolio in the possession of Custodian (other than securities
maintained by Custodian with a sub-custodian appointed pursuant to this
Agreement or in a Securities Depository or Book-Entry System) shall be
physically segregated from other such securities and non-cash property in the
possession of Custodian. All cash, securities and other non-cash property of a
Portfolio shall be identified as belonging to such Portfolio.
3.2 Custody
Account. (a)
Custodian shall open and maintain in its trust department a custody account in
the name of each Portfolio, subject only to draft or order of Custodian, in
which Custodian shall record and carry all securities, funds and other assets of
such Portfolio which are delivered to Custodian and accepted by it.
(b) If,
with respect to any Portfolio, Custodian at any time fails to receive any of the
documents referred to in Section 3.10(a) below, then, until such time as it
receives such document, it shall not be obligated to receive any securities into
the Custody Account of such Portfolio and shall be entitled to return to such
Portfolio any securities that it is holding in such Custody
Account.
3.3 Securities
in Physical Form.
Custodian may, but shall not be obligated to, hold securities that may be
held only in physical form.
3.4 Disclosure
to Issuers of Securities. Custodian is authorized to
disclose the Trust's and any Portfolio's name and address, and the securities
positions in such Portfolio's Custody Account, to the issuers of such securities
when requested by them to do so.
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3.5 Employment
of Domestic Sub-Custodians. At any time and from time to
time, Custodian in its discretion may appoint and employ, and may also cease to
employ, any Eligible Domestic Bank as sub-custodian to hold securities and other
assets of a Portfolio that are maintained in the United States and to carry out
such other provisions of this Agreement as it may determine, provided, however,
that the employment of any such sub-custodian has been approved by the Trust.
The employment of any such sub-custodian shall be at Custodian's expense and
shall not relieve Custodian of any of its obligations or liabilities under this
Agreement.
3.6 Employment
of Foreign Sub-Custodians. (a) Unless otherwise
instructed in Written Instructions, Custodian is authorized to hold any Foreign
Asset of a Portfolio in any country in which all or a portion of the primary
market for such Foreign Asset is situated.
(b) At
any time and from time to time, Custodian in its discretion may appoint and
employ in accordance with the 1940 Act, and may also cease to employ, (i) any overseas
branch of any Eligible Domestic Bank, or (ii) any Eligible
Foreign Custodian selected by the Foreign Custody Manager, in each case as a
foreign sub-custodian for Foreign Assets of a Portfolio, provided, however, that
the employment of any such overseas branch has been approved by the Trust and,
provided further that, in the case of any such Eligible Foreign Custodian, the
Foreign Custody Manager has approved the agreement pursuant to which Custodian
employs such Eligible Foreign Custodian.
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(c) Set
forth on Exhibit D hereto, with respect to each Portfolio, are the foreign
sub-custodians that Custodian may employ pursuant to Section 3.6(b) above.
Exhibit D shall be revised from time to time as foreign sub-custodians are added
or deleted.
(d) If
the Trust proposes to have a Portfolio make an investment which is to be held in
a country in which Custodian does not have appropriate arrangements in place
with either an overseas branch of an Eligible Domestic Bank or an Eligible
Foreign Custodian selected by the Foreign Custody Manager, then the Trust shall
inform Custodian sufficiently in advance of such investment to allow Custodian
to make such arrangements.
(e)
Notwithstanding anything to the contrary in Section 8.1 below, Custodian shall
have no greater liability to any Portfolio or the Trust for the actions or
omissions of any foreign sub-custodian appointed pursuant to this Agreement than
any such foreign sub-custodian has to Custodian, and Custodian shall not be
required to discharge any such liability which may be imposed on it unless and
until such foreign sub-custodian has effectively indemnified Custodian against
it or has otherwise discharged its liability to Custodian in full.
(f) Upon
the request of the Foreign Custody Manager, Custodian shall furnish to the
Foreign Custody Manager information concerning all foreign sub-custodians
employed pursuant to this Agreement which shall be similar in kind and scope to
any such information that may have been furnished to the Foreign Custody Manager
in connection with the initial approval by the Foreign Custody Manager of the
agreements pursuant to which Custodian employs such foreign sub-custodians or as
otherwise required by the 1940 Act.
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3.7 Employment
of Other Agents.
Custodian may employ other suitable agents, which may include affiliates of
Custodian such as Bear, Xxxxxxx & Co. Inc. ("Bear Xxxxxxx") or Bear, Xxxxxxx
Securities Corp.("BS Securities"), both of which are securities broker-dealers,
provided, however, that Custodian shall not employ (a) BS Securities to hold any
collateral pledged by BS Securities under the Master Securities Loan Agreement
or any other securities loan agreement between the Trust and BS Securities,
whether now or hereafter in effect, or (b) Bear Xxxxxxx to hold any securities
purchased from Bear Xxxxxxx under the Master Repurchase Agreement or any other
repurchase agreement between the Trust and Bear Xxxxxxx, whether now or
hereafter in effect. The appointment of any agent pursuant to this Section 3.7
shall not relieve Custodian of any of its obligations or liabilities under this
Agreement.
3.8 Bank
Accounts. In its
discretion and from time to time Custodian may open and maintain one or more
demand deposit accounts with any Eligible Domestic Bank (any such accounts to be
in the name of Custodian and subject only to its draft or order), provided,
however, that the opening and maintenance of any such account shall be at
Custodian's expense and shall not relieve Custodian of any of its obligations or
liabilities under this Agreement.
3.9 Delivery
of Assets to Custodian. Provided they are acceptable
to Custodian, the Trust shall deliver to Custodian the securities, funds and
other assets of each Portfolio, including (a) payments of
income, payments of principal and capital distributions received by such
Portfolio with respect to securities, funds or other assets owned by such
Portfolio at any time during the term of this Agreement, and (b) funds received by
such Portfolio for the issuance, at any time during such term, of Shares of such
Portfolio. Custodian shall not be under any duty or obligation to require the
Trust to deliver to it any securities or other assets owned by a Portfolio and
shall have no responsibility or liability for or on account of securities or
other assets not so delivered.
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3.10 Domestic
Securities Depositories and Book-Entry Systems. Custodian and any
sub-custodian appointed pursuant to Section 3.5 above may deposit and/or
maintain securities of any Portfolio in a Domestic Securities Depository or in a
Book-Entry System, subject to the following provisions:
(a) Prior
to a deposit of securities of a Portfolio in any Domestic Securities Depository
or Book-Entry System, the Trust shall deliver to Custodian a resolution of the
Board of Trustees, certified by an officer of the Trust, authorizing and
instructing Custodian (and any sub-custodian appointed pursuant to Section 3.5
above) on an on-going basis to deposit in such Domestic Securities Depository or
Book-Entry System all securities eligible for deposit therein and to make use of
such Domestic Securities Depository or Book-Entry System to the extent possible
and practical in connection with the performance of its obligations hereunder
(or under the applicable sub-custody agreement in the case of such
sub-custodian), 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.
(b)
Securities of a Portfolio kept in a Book-Entry System or Domestic Securities
Depository shall be kept in an account ("Depository Account") of Custodian (or
of any sub-custodian appointed pursuant to Section 3.5 above) in such Book-Entry
System or Domestic Securities Depository which includes only assets held by
Custodian (or such sub-custodian) as a fiduciary, custodian or otherwise for
customers.
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(c) The
records of Custodian with respect to securities of a Portfolio that are
maintained in a Book-Entry System or Domestic Securities Depository shall at all
times identify such securities as belonging to such Portfolio.
(d) If
securities purchased by a Portfolio are to be held in a Book-Entry System or
Domestic Securities Depository, Custodian (or any sub-custodian appointed
pursuant to Section 3.5 above) shall pay for such securities upon (i) receipt of advice
from the Book-Entry System or Domestic Securities Depository that such
securities have been transferred to the Depository Account, and (ii) the making of an
entry on the records of Custodian (or of such sub-custodian) to reflect such
payment and transfer for the account of such Portfolio. If securities sold by a
Portfolio are held in a Book-Entry System or Domestic Securities Depository,
Custodian (or such sub-custodian) shall transfer such securities upon (A) receipt of advice
from the Book-Entry System or Domestic Securities Depository that payment for
such securities has been transferred to the Depository Account, and (B) the making of an
entry on the records of Custodian (or of such sub-custodian) to reflect such
transfer and payment for the account of such Portfolio.
(e)
Custodian shall provide the Trust with copies of any report obtained by
Custodian (or by any sub-custodian appointed pursuant to Section 3.5 above) from
a Book-Entry System or Domestic Securities Depository in which securities of a
Portfolio are kept on the internal accounting controls and procedures for
safeguarding securities deposited in such Book-Entry System or Domestic
Securities Depository.
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(f) At
its election, the Trust shall be subrogated to the rights of Custodian (or of
any sub-custodian appointed pursuant to Section 3.5 above) with respect to any
claim against a Book-Entry System or Domestic Securities Depository or any other
person for any loss or damage to a Portfolio arising from the use of such
Book-Entry System or Domestic Securities Depository, if and to the extent that
such Portfolio has not been made whole for any such loss or damage.
3.11 Foreign
Securities Depositories. (a) Unless otherwise
instructed in Written Instructions, Custodian may place and maintain Foreign
Assets of a Portfolio with an Eligible Foreign Securities Depository, provided
that it has delivered to the Trust an analysis of the custody risks associated
with maintaining assets with such Eligible Foreign Securities Depository.
Custodian shall monitor such custody risks and promptly notify the Trust of any
material change in such risks.
(b) In
performing its obligations under Section 11(a) above, Custodian shall exercise
reasonable care, prudence and diligence. In the exercise of such reasonable
care, prudence and diligence, Custodian may rely upon assessments,
determinations and monitoring made and performed with respect to an Eligible
Foreign Securities Depository by Citibank, N.A. or such other operator of a
global custody system as from time to time may be employed by Custodian and
approved by the Trust.
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3.12 Relationship
With Securities Depositories. No Book-Entry System,
Securities Depository, or other securities depository or clearing agency
(whether foreign or domestic) which it is or may become standard market practice
to use for the comparison and settlement of trades in securities shall be an
agent or sub-contractor of Custodian for purposes of Section 3.7 above or
otherwise.
3.13 Payments
from Custody Account. Upon receipt of Proper
Instructions with respect to a Portfolio but subject to its right to foreclose
upon and liquidate collateral pledged to it pursuant to Section 9.3 below,
Custodian shall make payments from the Custody Account of such Portfolio, but
only in the following cases, provided, first, that there are
sufficient funds in such Custody Account, whether belonging to such Portfolio or
advanced to it by Custodian in its sole and absolute discretion as set forth in
Section 3.19 below, for Custodian to make such payments, and, second, that after
the making of such payments, such Portfolio would not be in violation of any
margin or other requirements agreed upon pursuant to Section 3.19
below:
(a) For
the purchase of securities for such Portfolio but only (i) in the case of
securities (other than options on securities, futures contracts and options on
futures contracts), against the delivery to Custodian (or any sub-custodian
appointed pursuant to this Agreement) of such securities registered as provided
in Section 3.21 below or in proper form for transfer or, if the purchase of such
securities is effected through a Book-Entry System or Domestic Securities
Depository, in accordance with the conditions set forth in Section 3.10 above,
and (ii) in the
case of options, futures contracts and options on futures contracts, against
delivery to Custodian (or such sub-custodian) of evidence of title thereto in
favor of such Portfolio, the Custodian, any such sub-custodian, or any nominee
referred to in Section 3.21 below;
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(b) In
connection with the conversion, exchange or surrender, as set forth in Section
3.14(f) below, of securities owned by such Portfolio;
(c) For
transfer in accordance with the provisions of any agreement among the Trust,
Custodian and a securities broker-dealer, 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 of such
Portfolio;
(d) For
transfer in accordance with the provisions of any agreement among the Trust,
Custodian and a futures commission merchant, relating to compliance with the
rules of the Commodity Futures Trading Commission and/or any contract market (or
any similar organization or organizations) regarding margin or other deposits in
connection with transactions of such Portfolio;
(e) For
the funding of any time deposit (whether certificated or not) or other
interest-bearing account with any banking institution (including Custodian),
provided that Custodian shall receive and retain such certificate, advice,
receipt or other evidence of deposit (if any) as such banking institution may
deliver with respect to any such deposit or account;
(f) For
the purchase from a banking or other financial institution of loan
participations, but only if Custodian has in its possession a copy of the
agreement between the Trust and such banking or other financial institution with
respect to the purchase of such loan participations and provided that Custodian
shall receive and retain such participation certificate or other evidence of
participation (if any) as such banking or other financial institution may
deliver with respect to any such loan participation;
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(g) For
the purchase and/or sale of foreign currencies or of options to purchase and/or
sell foreign currencies, for spot or future delivery, for the account of such
Portfolio pursuant to contracts between the Trust and any banking or other
financial institution (including Custodian, any sub-custodian appointed pursuant
to this Agreement and any affiliate of Custodian);
(h) For
transfer to a securities broker-dealer as margin for a short sale of securities
for such Portfolio, or as payment in lieu of dividends paid on securities sold
short for such Portfolio;
(i) For
the payment as provided in Article IV below of any dividends, capital gain
distributions or other distributions declared on the Shares of such
Portfolio;
(j) For
the payment as provided in Article IV below of the redemption price of the
Shares of such Portfolio;
(k) For
the payment of any expense or liability incurred by such Portfolio, including
but not limited to the following payments for the account of such Portfolio:
interest, taxes, and administration, investment advisory, accounting, auditing,
transfer agent, custodian, trustee and legal fees, and other operating expenses
of such Portfolio; in all cases, whether or not such expenses are to be in whole
or in part capitalized or treated as deferred expenses; and
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(l) For
any other proper purpose, but only upon receipt of Proper Instructions,
specifying the amount and purpose of such payment, certifying such purpose to be
a proper purpose of such Portfolio, and naming the person or persons to whom
such payment is to be made.
3.14 Deliveries
from Custody Account.
Upon receipt of Proper Instructions with respect to a Portfolio but
subject to its right to foreclose upon and liquidate collateral pledged to it
pursuant to Section 9.3 below, Custodian shall release and deliver securities
and other assets from the Custody Account of such Portfolio, but only in the
following cases, provided, first, that there are
sufficient amounts and types of securities or other assets in such Custody
Account for Custodian to make such deliveries, and, second, that after
the making of such deliveries, such Portfolio would not be in violation of any
margin or other requirements agreed upon pursuant to Section 3.19
below:
(a) Upon
the sale of securities for the account of such Portfolio but, subject to Section
3.15 below, only against receipt of payment therefor or, if such sale is
effected through a Book-Entry System or Domestic Securities Depository, in
accordance with the provisions of Section 3.10 above;
(b) To an
offeror's depository agent in connection with tender or other similar offers for
securities of such Portfolio; provided that, in any such case, the funds or
other consideration for such securities is to be delivered to
Custodian;
(c) To
the issuer thereof or its agent when such securities are called, redeemed or
otherwise become payable, provided that in any such case the funds or other
consideration for such securities is to be delivered to Custodian;
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(d) To
the issuer thereof or its agent 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 Custodian;
(e) To
the securities broker through whom securities are being sold for such Portfolio,
for examination in accordance with the "street delivery" custom;
(f) 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 any such case, the new securities and
funds, if any, are to be delivered to Custodian;
(g) In
the case of warrants, rights or similar securities, to the issuer of such
warrants, rights or similar securities, or its agent, upon the exercise thereof,
provided that, in any such case, the new securities and funds, if any, are to be
delivered to Custodian;
(h) To
the borrower thereof, or its agent, in connection with any loans of securities
for such Portfolio pursuant to any securities loan agreement entered into by the
Trust, but only against receipt by Custodian of such collateral as is required
under such securities loan agreement;
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(i) To
any lender, or its agent, as collateral for any borrowings from such lender by
such Portfolio that require a pledge of assets of such Portfolio, but only
against receipt by Custodian of the amounts borrowed;
(j)
Pursuant to any authorized plan of liquidation, reorganization, merger,
consolidation or recapitalization of such Portfolio or the Trust;
(k) For
delivery in accordance with the provisions of any agreement among the Trust,
Custodian and a securities broker- dealer, 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 of such
Portfolio;
(l) For
delivery in accordance with the provisions of any agreement among the Trust,
Custodian, and a futures commission merchant, relating to compliance with the
rules of the Commodity Futures Trading Commission and/or any contract market (or
any similar organization or organizations) regarding margin or other deposits in
connection with transactions of such Portfolio;
(m) For
delivery to a securities broker-dealer as margin for a short sale of securities
for such Portfolio;
(n) To
the issuer of American Depositary Receipts, International Depositary Receipts or
other similar receipts (hereinafter, collectively, "ADRs") for such securities,
or its agent, against a written receipt therefor adequately describing such
securities, provided that such securities are delivered together with
instructions to issue ADRs in the name of Custodian or its nominee and to
deliver such ADRs to Custodian;
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(o) In
the case of ADRs, to the issuer thereof, or its agent, against a written receipt
therefor adequately describing such ADRs, provided that such ADRs are delivered
together with instructions to deliver the securities underlying such ADRs to
Custodian or an agent of Custodian; or
(p) For
any other proper purpose, but only upon receipt of Proper Instructions,
specifying the securities or other assets to be delivered, setting forth the
purpose for which such delivery is to be made, certifying such purpose to be a
proper purpose of such Portfolio, and naming the person or persons to whom
delivery of such securities or other assets is to be made.
3.15 Delivery
Prior to Final Payment. When instructed by the Trust
to deliver securities of a Portfolio against payment, Custodian shall be
entitled, but only if in accordance with generally accepted market practice, to
deliver such securities prior to actual receipt of final payment therefor and,
exclusively in the case of securities in physical form, prior to receipt of
payment therefor. In any such case, such Portfolio 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 Custodian shall have no liability for any of the
foregoing.
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3.16 Credit
Prior to Final Payment. In its sole discretion and
from time to time, Custodian may credit the Custody Account of a Portfolio,
prior to actual receipt of final payment thereof, with (a) proceeds from the
sale of securities of such Portfolio which it has been instructed to deliver
against payment, (b) proceeds from the
redemption of securities or other assets in such Custody Account, and (c) income from
securities, funds or other assets in such Custody Account. 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. Custodian
may, in its sole discretion and from time to time, permit a Portfolio to use
funds so credited to its Custody Account in anticipation of actual receipt of
final payment. Any funds so used shall constitute an advance subject to Section
3.19 below.
3.17 Definition
of Final Payment.
For purposes of this Agreement, "final payment" means payment in funds which are
(or have become) immediately available, under applicable law are irreversible,
and are not subject to any security interest, xxxx, xxxx or other
encumbrance.
3.18 Payments
and Deliveries Outside the United States. Notwithstanding anything to
the contrary that may be required by Section 3.13 or Section 3.14 above, or
elsewhere in this Agreement, in the case of securities and other assets
maintained outside the United States and in the case of payments made outside
the United States, Custodian and any sub-custodian appointed pursuant to this
Agreement may receive and deliver such securities or other assets, and may make
such payments, in accordance with the laws, regulations, customs, procedures and
practices applicable in the relevant local market outside the United
States.
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3.19 Clearing
Credit. Custodian
may, in its sole discretion and from time to time, advance funds to the Trust to
facilitate the settlement of a Portfolio's transactions in the Custody Account
of such Portfolio. Any such advance (a) shall be repayable
immediately upon demand made by Custodian, (b) shall be fully
secured as provided in Section 9.3 below, and (c) shall bear
interest at such rate, and be subject to such other terms and conditions, as
Custodian and the Trust may agree.
3.20 Actions
Not Requiring Proper Instructions. Unless otherwise instructed
by the Trust, Custodian shall with respect to all securities and other assets
held for a Portfolio:
(a)
Subject to Section 8.4 below, receive into the Custody Account of such Portfolio
any funds or other property, including payments of principal, interest and
dividends, due and payable on or on account of such securities and other
assets;
(b)
Deliver securities of such Portfolio to the issuers of such securities or their
agents for the transfer thereof into the name of such Portfolio, Custodian or
any of the nominees referred to in Section 3.21 below;
(c)
Endorse for collection, in the name of such Portfolio, 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 of the United States, or the laws or
regulations of any other taxing authority, in connection with the transfer of
such securities or other assets or the receipt of income or other payments with
respect thereto;
-20-
(f)
Receive and hold for such Portfolio all rights and similar securities issued
with respect to securities or other assets of such Portfolio;
(g) As
may be required in the execution of Proper Instructions, transfer funds from the
Custody Account of such Portfolio to any demand deposit account maintained by
Custodian pursuant to Section 3.8 above; and
(h) In
general, attend to all non-discretionary details in connection with the sale,
exchange, substitution, purchase and transfer of, and other dealings in, such
securities and other assets.
3.21 Registration
and Transfer of Securities. All securities
held for a Portfolio that are issuable only in bearer form shall be held by
Custodian in that form, provided that any such securities shall be held in a
Securities Depository or Book-Entry System if eligible therefor. All other
securities and all other assets held for a Portfolio may be registered in the
name of (a)
Custodian as agent, (b) any sub-custodian
appointed pursuant to this Agreement, (c) any Securities
Depository, or (d) any nominee or
agent of any of them. The Trust shall furnish to Custodian appropriate
instruments to enable Custodian to hold or deliver in proper form for transfer,
or to register as in this Section 3.21 provided, any securities or other assets
delivered to Custodian which are registered in the name of a
Portfolio.
-21-
3.21 Records. (a) Custodian shall
maintain complete and accurate records with respect to securities, funds and
other assets held for a Portfolio, 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
funds; (ii)
ledgers (or other records) reflecting (A) securities in
transfer, if any, (B) securities in
physical possession, (C) monies and
securities borrowed and monies and securities loaned (together with a record of
the collateral therefor and substitutions of such collateral), (D) dividends and
interest received, and (E) dividends
receivable and interest accrued; and (iii) canceled checks
and bank records related thereto. Custodian shall keep such other
books and records with respect to securities, funds and other assets of a
Portfolio which are held hereunder as the Trust may reasonably
request.
(b) All
such books and records maintained by Custodian for a Portfolio shall (i) be maintained in a
form acceptable to the Trust and in compliance with rules and regulations of the
Securities and Exchange Commission, (ii) be the property
of such Portfolio and at all times during the regular business hours of
Custodian be made available upon request for inspection by duly authorized
officers, employees or agents of the Trust and employees or agents of the
Securities and Exchange Commission, and (iii) if required to
be maintained under the 1940 Act, be preserved for the periods prescribed
therein.
3.23 Account
Reports by Custodian. Custodian shall furnish the
Trust with a daily activity statement, including a summary of all transfers to
or from the Custody Account of each Portfolio (in the case of securities and
other assets maintained in the United States, on the day following such
transfers). At least monthly and from time to time, Custodian shall furnish the
Trust with a detailed statement of the securities, funds and other assets held
for each Portfolio under this Agreement.
-22-
3.24 Other
Reports by Custodian. Custodian shall provide the
Trust with such reports as the Trust may reasonably request from time to time on
the internal accounting controls and procedures for safeguarding securities
which are employed by Custodian or any sub-custodian appointed pursuant to this
Agreement.
3.25 Proxies
and Other Materials. (a) Unless otherwise
instructed by the Trust, Custodian shall promptly deliver to the Trust all
notices of meetings, proxy materials (other than proxies) and other
announcements, which it receives regarding securities held by it in the Custody
Account of a Portfolio. Whenever Custodian or any of its agents receives a proxy
with respect to securities in the Custody Account of a Portfolio, Custodian
shall promptly request instructions from the Trust on how such securities are to
be voted, and shall give such proxy, or cause it to be given, in accordance with
such instructions. If the Trust timely informs Custodian that the Trust wishes
to vote any such securities in person, Custodian shall promptly seek to have a
legal proxy covering such securities issued to the Trust. Unless otherwise
instructed by the Trust, neither Custodian nor any of its agents shall exercise
any voting rights with respect to securities held hereunder.
(b)
Unless otherwise instructed by the Trust, Custodian shall promptly transmit to
the Trust all other written information received by Custodian from issuers of
securities held in the Custody Account of any Portfolio. With respect to tender
or exchange offers for such securities or with respect to other corporate
transactions involving such securities, Custodian shall promptly transmit to the
Trust all written information received by Custodian from the issuers of such
securities or from any party (or its agents) making any such tender or exchange
offer or participating in such other corporate transaction. If the Trust, with
respect to such tender or exchange offer or other corporate transaction, desires
to take any action that may be taken by it pursuant to the terms of such offer
or other transaction, the Trust shall notify Custodian (i) in the case of
securities maintained outside the United States, such number of Business Days
prior to the date on which Custodian is to take such action as will allow
Custodian to take such action in the relevant local market for such securities
in a timely fashion, and (ii) in the case of
all other securities, at least five Business Days prior to the date on which
Custodian is to take such action.
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3.26 Co-operation. Custodian shall cooperate
with and supply necessary information to the entity or entities appointed by the
Trust to keep the books of account of a Portfolio and/or to compute the value of
the assets of a Portfolio.
ARTICLE
IV
REDEMPTION OF PORTFOLIO
SHARES;
DIVIDENDS AND OTHER
DISTRIBUTIONS
4.1 Transfer
of Funds. From
such funds as may be available for the purpose in the Custody Account of a
Portfolio, and upon receipt of Proper Instructions specifying that the funds are
required to redeem Shares of such Portfolio or to pay dividends or other
distributions to holders of Shares of such Portfolio, Custodian shall transfer
each amount specified in such Proper Instructions to such account of such
Portfolio or of an agent thereof (other than Custodian), at such bank, as the
Trust may designate therein with respect to such amount.
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4.2 Sole Duty
of Custodian.
Custodian's sole obligation with respect to the redemption of Shares of a
Portfolio and the payment of dividends and other distributions thereon shall be
its obligation set forth in Section 4.1 above, and Custodian shall not be
required to make any payments to the various holders from time to time of Shares
of a Portfolio nor shall Custodian be responsible for the payment or
distribution by the Trust, or any agent designated in Proper Instructions given
pursuant to Section 4.1 above, of any amount paid by Custodian to the account of
the Trust or such agent in accordance with such Proper
Instructions.
ARTICLE
V
SEGREGATED
ACCOUNTS
Upon
receipt of Proper Instructions to do so, Custodian shall establish and maintain
a segregated account or accounts for and on behalf of any Portfolio, into which
account or accounts may be
transferred
funds and/or securities, including securities maintained in a Securities
Depository:
(a) in
accordance with the provisions of any agreement among the Trust, Custodian and a
securities broker-dealer (or any futures commission merchant), relating to
compliance with the rules of The Options Clearing Corporation or 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 of such Portfolio,
(b) for
purposes of segregating funds or securities in connection with securities
options purchased or written by such Portfolio or in connection with financial
futures contracts (or options thereon) purchased or sold by such
Portfolio,
(c) which
constitute collateral for loans of securities made by such
Portfolio,
-25-
(d) for
purposes of compliance by such Portfolio with requirements under the 1940 Act
for the maintenance of segregated accounts by registered management investment
companies in connection with reverse repurchase agreements, when-issued, delayed
delivery and firm commitment transactions, and short sales of securities,
and
(e) for
other proper purposes, but only upon receipt of Proper Instructions, specifying
the purpose or purposes of such segregated account and certifying such purposes
to be proper purposes of such Portfolio.
ARTICLE
VI
CERTAIN REPURCHASE
TRANSACTIONS
6.1 Transactions. If and to the extent that
the necessary funds and securities of a Portfolio have been entrusted to it
under this Agreement, and subject to Custodian's right to foreclose upon and
liquidate collateral pledged to it pursuant to Section 9.3 below, Custodian, as
agent of such Portfolio, shall from time to time (and unless the Trust gives it
Proper Instructions to do otherwise) make from the Custody Account of such
Portfolio the transfers of funds and deliveries of securities which such
Portfolio is required to make pursuant to the Master Repurchase Agreement and
shall receive for the Custody Account of such Portfolio the transfers of funds
and deliveries of securities which the seller under the Master Repurchase
Agreement is required to make pursuant thereto. Custodian shall make and receive
all such transfers and deliveries pursuant to, and subject to the terms and
conditions of, the Master Repurchase Agreement.
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6.2 Collateral. Custodian shall daily xxxx
to market the securities purchased under the Master Repurchase Agreement and
held in the Custody Account of a Portfolio, and shall give to the seller
thereunder any such notice as may be required thereby in connection with such
xxxx-to-market.
6.3 Events of
Default.
Custodian shall promptly notify the Trust of any event of default under
the Master Repurchase Agreement (as such term "event of default" is defined
therein) of which it has actual knowledge.
6.4 Master
Repurchase Agreement.
Custodian hereby acknowledges its receipt from the Trust of a copy of the
Master Repurchase Agreement. The Trust shall provide Custodian, prior to the
effectiveness thereof, with a copy of any amendment to the Master Repurchase
Agreement.
ARTICLE
VII
CERTAIN SECURITIES LENDING
TRANSACTIONS
7.1 Transactions. If and to the extent that
the necessary funds and securities of a Portfolio have been entrusted to it
under this Agreement, and subject to Custodian's right to foreclose upon and
liquidate collateral pledged to it pursuant to Section 9.3 below, Custodian, as
agent of such Portfolio, shall from time to time (and unless the Trust gives it
Proper Instructions to do otherwise) make from the Custody Account of such
Portfolio the transfers of funds and deliveries of securities which such
Portfolio is required to make pursuant to the Master Securities Loan Agreement
and shall receive for the Custody Account of such Portfolio the transfers of
funds and deliveries of securities which the borrower under the Master
Securities Loan Agreement is required to make pursuant thereto. Custodian shall
make and receive all such transfers and deliveries pursuant to, and subject to
the terms and conditions of, the Master Securities Loan Agreement.
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7.2 Collateral. Custodian shall daily xxxx
to market, in the manner provided for in the Master Securities Loan Agreement,
all loans of securities which may from time to time be outstanding
thereunder.
7.3 Defaults. Custodian shall promptly
notify the Trust of any default under the Master Securities Loan Agreement (as
such term "default" is defined therein) of which it has actual
knowledge.
7.4 Master
Securities Loan Agreement. Custodian hereby
acknowledges its receipt from the Trust of a copy of the Master Securities Loan
Agreement. The Trust shall provide Custodian, prior to the effectiveness
thereof, with a copy of any amendment to the Master Securities Loan
Agreement.
ARTICLE
VIII
CONCERNING THE
CUSTODIAN
8.1 Standard
of Care.
Custodian shall be held to the exercise of reasonable care in carrying out its
obligations under this Agreement, and shall be without liability to any
Portfolio or the Trust for any loss, damage, cost, expense (including attorneys'
fees and disbursements), liability or claim which does not arise from willful
misfeasance, bad faith or negligence on the part of Custodian. Custodian shall
be entitled to rely on and may act upon advice of counsel in all matters, and
shall be without liability for any action reasonably taken or omitted pursuant
to such advice. In no event shall Custodian be liable for special, incidental or
consequential damages, even if Custodian has been advised of the possibility of
such damages, or be liable in any manner whatsoever for any action taken or
omitted upon instructions from the Trust or any agent of the Trust.
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8.2 Actual
Collection Required. Custodian shall not be
liable for, or considered to be the custodian of, any funds belonging to a
Portfolio or any money represented by a check, draft or other instrument for the
payment of money, until Custodian or its agents actually receive such funds or
collect on such instrument.
8.3 No
Responsibility for Title, etc. So long as and to the extent
that it is in the exercise of reasonable care, Custodian shall not be
responsible for the title, validity or genuineness of any assets or evidence of
title thereto received or delivered by it or its agents.
8.4 Limitation
on Duty to Collect. Custodian shall promptly
notify the Trust whenever any money or property due and payable from or on
account of any securities or other assets held hereunder for a Portfolio is not
timely received by it. Custodian shall not, however, be required to enforce
collection, by legal means or otherwise, of any such money or other property not
paid when due, but shall receive the proceeds of such collections as may be
effected by it or its agents in the ordinary course of Custodian's custody and
safekeeping business or of the custody and safekeeping business of such
agents.
8.5 Express
Duties Only.
Custodian shall have no duties or obligations whatsoever except such duties and
obligations as are specifically set forth in this Agreement, and no covenant or
obligation shall be implied in this Agreement against Custodian. Custodian shall
have no discretion whatsoever with respect to the management, disposition or
investment of the Custody Account of any Portfolio and is not a fiduciary to any
Portfolio or the Trust. In particular, Custodian shall not be under any
obligation at any time to monitor or to take any other action with respect to
compliance by any Portfolio or the Trust with the 1940 Act, the provisions of
the Trust's trust instruments or by-laws, or any Portfolio's investment
objectives, policies and limitations as in effect from time to
time.
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ARTICLE
IX
INDEMNIFICATION
9.1 Indemnification. Each Portfolio shall
indemnify and hold harmless Custodian, any sub-custodian appointed pursuant to
this Agreement and any nominee of any of them, from and against any loss,
damages, cost, expense (including attorneys' fees and disbursements), liability
(including, without limitation, liability arising under the Securities Act of
1933, the Securities Exchange Act of 1934, the 1940 Act, and any federal, state
or foreign securities and/or banking laws) or claim arising directly or
indirectly (a)
from the fact that securities or other assets in the Custody Account of such
Portfolio are registered in the name of any
such
nominee, or (b)
from any action or inaction, with respect to such Portfolio, by Custodian or
such sub-custodian or nominee (i) at the request or
direction of or in reliance on the advice of the Trust or any of its agents, or
(ii) upon
Proper Instructions, or (c) generally, from
the performance of its obligations under this Agreement with respect to such
Portfolio, provided that Custodian, any such sub-custodian or any nominee of any
of them shall not be indemnified and held harmless from and against any such
loss, damage, cost, expense, liability or claim arising from willful
misfeasance, bad faith or negligence on the part of Custodian or any such
sub-custodian or nominee.
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9.2 Indemnity
to be Provided.
If the Trust requests Custodian to take any action with respect to securities or
other assets of a Portfolio, which may, in the opinion of Custodian, result
in
Custodian
or its nominee becoming liable for the payment of money or incurring liability
of some other form, Custodian shall not be required to take such action until
such Portfolio shall have provided indemnity therefor to Custodian in an amount
and form satisfactory to Custodian.
9.3 Security. As security for the payment
of any present or future obligation or liability of any kind which a Portfolio
may have to Custodian with respect to or in connection with the Custody Account
of such Portfolio or this Agreement, or which such Portfolio may otherwise have
to Custodian, the Trust hereby pledges to Custodian all securities, funds and
other assets of every kind which are in such Custody Account or otherwise held
for such Portfolio pursuant to this Agreement, and hereby grants to Custodian a
lien, right of set-off and continuing first priority and perfected security
interest in such securities, funds and other assets.
-31-
ARTICLE
X
FORCE
MAJEURE
Custodian
shall not 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;
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; actions by any governmental authority, de jure or de facto; or inability
to obtain labor, material, equipment or transportation.
ARTICLE
XI
REPRESENTATIONS AND
WARRANTIES
11.1 Representations
With Respect to Portfolios. The Trust represents and
warrants that (a) it has all necessary power and authority to perform the
obligations hereunder of each Portfolio, (b) the execution and delivery by it of
this Agreement, and the performance by it of the obligations hereunder of each
Portfolio, have been duly authorized by all necessary action and will not
violate any law, regulation, charter, by-law, or other instrument, restriction
or provision applicable to it or such Portfolio or by
which it
or such Portfolio, or their respective assets, may be bound, and (c) this
Agreement constitutes a legal, valid and binding obligation of each Portfolio,
enforceable against it in accordance with its terms.
-32-
11.2 Representations
of Custodian.
Custodian represents and warrants that (a) it has all necessary power and
authority to perform its obligations hereunder, (b) the execution and delivery
by it of this Agreement, and the performance by it of its obligations hereunder,
have been duly authorized by all necessary action and will not violate any law,
regulation, charter, by-law, or other instrument, restriction or provision
applicable to it or by which it or its assets may be bound, and (c) this
Agreement constitutes its legal, valid and binding obligation, enforceable
against it in accordance with its terms.
ARTICLE
XII
COMPENSATION OF
CUSTODIAN
Each
Portfolio shall pay Custodian such fees and charges as are set forth in Exhibit
E hereto, as such Exhibit E may from time to time be revised by Custodian upon
14 days' prior written notice to the Trust. Any annual fee or other charges
payable by a Portfolio shall be paid monthly by automatic deduction from funds
available therefor in the Custody Account of such Portfolio, or, if there are no
such funds, upon presentation of an invoice therefor. Out-of-pocket expenses
incurred by Custodian in the performance of its services hereunder for any
Portfolio and all other proper charges and disbursements of the Custody Account
of such Portfolio shall be charged to such Custody Account by Custodian and paid
in the same manner as the annual fee and other charges referred to in this
Article XII.
ARTICLE
XIII
TAXES
13.1 Taxes
Payable by Portfolios. Any and all taxes, including
any interest and penalties with respect thereto, which may be levied or assessed
under present or future laws or in respect of the Custody Account of any
Portfolio or any income thereof shall be charged to such Custody Account by
Custodian and paid in the same manner as the annual fee and other charges
referred to in Article XII above.
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13.2 Tax
Reclaims. Upon
the written request of the Trust, Custodian shall exercise, on behalf of any
Portfolio, any tax reclaim rights of such Portfolio which arise in connection
with foreign securities in the Custody Account of such Portfolio.
ARTICLE
XIV
AUTHORIZED PERSONS;
NOTICES
14.1 Authorized
Persons.
Custodian may rely upon and act in accordance with any notice, confirmation,
instruction or other communication which is reasonably believed by Custodian to
have been given or signed on behalf of the Trust by one of the Authorized
Persons designated by the Trust in Exhibit B hereto, as it may from time to time
be revised. The Trust may revise Exhibit B hereto at any time by notice in
writing to Custodian given in accordance with Section 14.4 below, but no
revision of Exhibit B hereto shall be effective until Custodian actually
receives such notice.
14.2 Investment
Advisers.
Custodian may also rely upon and act in accordance with any Written or Oral
Instructions given with respect to a Portfolio which are reasonably believed by
Custodian to have been given or signed by one of the persons designated from
time to time by any of the investment advisers of such Portfolio who are
specified in Exhibit C hereto (if any) as it may from time to time be revised.
The Trust may revise Exhibit C hereto at any time by notice in writing to
Custodian given in accordance with Section 14.4 below, and each investment
adviser specified in Exhibit C hereto (if any) may at any time by like notice
designate an Authorized Person or remove an Authorized Person previously
designated by it, but no revision of Exhibit C hereto (if any) and no
designation or removal by such investment adviser shall be effective until
Custodian actually receives such notice.
-34-
14.3 Oral
Instructions.
Custodian may rely upon and act in accordance with Oral Instructions. All Oral
Instructions shall be confirmed to Custodian in Written Instructions. However,
if Written Instructions confirming Oral Instructions are not received by
Custodian prior to a transaction, it shall in no way affect the validity of the
transaction authorized by such Oral Instructions or the authorization given by
an Authorized Person to effect such transaction. Custodian shall incur no
liability to any Portfolio or the Trust in acting upon Oral Instructions. To the
extent such Oral Instructions vary from any confirming Written Instructions,
Custodian shall advise the Trust of such variance but unless confirming Written
Instructions are timely received, such Oral Instructions shall
govern.
14.4 Addresses
for Notices.
Unless otherwise specified herein, all demands, notices, instructions, and other
communications to be given hereunder shall be sent, delivered or given to the
recipient at the address, or the relevant telephone number, set forth after its
name hereinbelow:
If
to the Trust:
ALTERNATIVE
INVESTMENT STRATEGIES
for
[INSERT NAME OF
PORTFOLIO]
c/o U.S.
Bancorp Mutual Fund Services
X.X. Xxx
000
Xxxxxxxxx,
XX 00000
Attention:
Xxxxxxx Xxxxxxxxx
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
-35-
If to
Custodian:
CUSTODIAL
TRUST COMPANY
000
Xxxxxxxx Xxxxxx
Xxxxxxxxx,
Xxx Xxxxxx 00000-0000
Attention:
Vice President - Trust
Operations
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
or at
such other address as either party hereto shall have provided to the other by
notice given in accordance with this Section 14.4. Writing shall include
transmissions by or through teletype, facsimile, central processing unit
connection, on-line terminal and magnetic tape.
14.5 Remote
Clearance. With
the prior consent in writing of Custodian, the Trust may give Remote Clearance
Instructions (as defined hereinbelow) and Bulk Input Instructions (as defined
hereinbelow) for the receipt, delivery or transfer of securities, provided that
such Instructions are given in accordance with the procedures prescribed by
Custodian from time to time as to content of instructions and their manner and
timeliness of delivery by Customer. Custodian shall be entitled to conclusively
assume that all Remote Clearance Instructions and Bulk Input Instructions have
been given by an Authorized Person, and Custodian is hereby irrevocably
authorized to act in accordance therewith. For purposes of this Agreement,
"Remote Clearance Instructions" means instructions that are input directly via a
remote terminal which is located on the premises of the Trust, or of an
investment adviser named in
Exhibit C hereto, and linked to Custodian; and "Bulk Input Instructions" means
instructions that are input by bulk input computer tape delivered to Custodian
by messenger or transmitted to it via such transmission mechanism as the Trust
and Custodian shall from time to time agree upon.
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ARTICLE
XV
TERMINATION
Either
party hereto may terminate this Agreement with respect to one or more of the
Portfolios by giving to the other party a notice in writing specifying the date
of such termination, which shall be not less than sixty (60) days after the date
of the giving of such notice. Upon the date set forth in such notice this
Agreement shall terminate with respect to each Portfolio specified in such
notice, and Custodian shall, upon receipt of a notice of acceptance by the
successor custodian, on that date (a) deliver directly
to the successor custodian or its agents all securities (other than securities
held in a Book-Entry System or Securities Depository) and other assets then
owned by such Portfolio and held by Custodian as custodian, and (b) transfer any
securities held in a Book-Entry System or Securities Depository to an account of
or for the benefit of such Portfolio, provided that such Portfolio shall have
paid to Custodian all fees, expenses and other amounts to the payment or
reimbursement of which it shall then be entitled.
ARTICLE
XVI
LIMITATION OF
LIABILITIES
To the
extent that the trustees of the Trust are regarded as entering into this
Agreement, they do so only as trustees of the Trust and not individually. The
obligations under this Agreement of the Trust or any Portfolio shall not be
binding upon any trustee, officer or employee of the Trust individually, or upon
any holder of Shares individually, but shall be binding only upon the assets and
property of such Portfolio. Such trustees, officers, employees and holders, when
acting in such capacities, shall not be personally liable under this Agreement,
and Custodian shall look solely to the assets and property of each Portfolio for
the performance of this Agreement with respect to such Portfolio and the payment
of any claim against such Portfolio under this Agreement.
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ARTICLE
XVII
MISCELLANEOUS
17.1 Business
Days. Nothing
contained in this Agreement shall require Custodian to perform any function or
duty on a day other than a Business Day.
17.2 Governing
Law. This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York, without regard to the conflict of law principles
thereof.
17.3 References
to Custodian. The
Trust 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 a
Portfolio and such other printed matter as merely identifies Custodian as
custodian for a Portfolio. The Trust 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.
17.4 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 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.
17.5 Amendments. This Agreement cannot be
changed orally and, except as otherwise provided herein with respect to the
Exhibits attached hereto, no amendment to this Agreement shall be effective
unless evidenced by an instrument in writing executed by the parties
hereto.
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17.6 Counterparts. This Agreement may be
executed in one or more counterparts, and by the parties hereto on separate
counterparts, each of which shall be deemed an original but all of which
together shall constitute but one and the same instrument.
17.7 Severability. If any provision of this
Agreement shall be invalid, illegal or unenforceable in any respect under
any
applicable
law, the validity, legality and enforceability of the remaining provisions shall
not be affected or impaired thereby.
17.8 Successors
and Assigns. This
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and assigns; provided, however, that this
Agreement shall not be assignable by either party hereto without the written
consent of the other party. Any purported assignment in violation of this
Section 17.8 shall be void.
17.9 Jurisdiction. Any suit, action or
proceeding with respect to this Agreement may be brought in the Supreme Court of
the State of New York, County of New York, or in the United States District
Court for the Southern District of New York, and the parties hereto hereby
submit to the non-exclusive jurisdiction of such courts for the purpose of any
such suit, action or proceeding, and hereby waive for such purpose any other
preferential jurisdiction by reason of their present or future domicile or
otherwise. Each of the parties hereby irrevocably waives its right to trial by
jury in any suit, action or proceeding with respect ot this
Agreement.
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17.10 Headings. The headings of sections in
this Agreement are for convenience of reference only and shall not affect the
meaning or construction of any provision of this Agreement.
IN WITNESS WHEREOF, each of
the parties hereto has caused this Agreement to be executed in its name and on
its behalf by its
representative
thereunto duly authorized, all as of the day and year first above
written.
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By: _/s/ Xxx
Schultheis_______
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Name: Xxx
Xxxxxxxxxx
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Title:Vice President
and Treasurer
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CUSTODIAL
TRUST COMPANY
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By: _/s/ Xxx X.
Szwalbenest___
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Name: Xxx X. Xxxxxxxxxxx
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Title: President and
CEO
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EXHIBIT
A
PORTFOLIOS
- Alpha
Strategies I Fund
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EXHIBIT
B
AUTHORIZED
PERSONS
Set forth
below are the names and specimen signatures of the persons authorized by the
Trust to administer the Custody Accounts of the Portfolios.
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Name
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Signature | ||
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Xxx
Xxxxxxxxxx
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/s/ Xxx Xxxxxxxxxx |
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EXHIBIT
C
INVESTMENT
ADVISERS
ALL
PORTFOLIOS
_______________________
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EXHIBIT
D
APPROVED FOREIGN
SUB-CUSTODIANS
ALL
PORTFOLIOS
Country Foreign
Sub-custodian
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EXHIBIT
E
CUSTODY FEES AND TRANSACTION
CHARGES
Annual
Fee. Each Portfolio shall pay Custodian an annual fee equal to the
greater of (i)
$6,000, and (ii) the sum of the
amounts obtained by applying per annum percentage rates to the value of the
assets in the Custody Account of such Portfolio as follows:
- 0.03%
(three basis points)to the first $20 million, plus
- 0.02%
(two basis points) to the next $20 million, plus
- 0.01%
(one basis point) to all amounts over $40 million,
with such
fee to be payable monthly and with the value of such assets for this purpose
being their market value on the last Business Day of the month for which such
fee is charged.
Domestic
Transaction Charges. Each Portfolio shall pay
Custodian the following transaction charges for transactions by such Portfolio
in the United States, all such charges to be payable monthly:
(1) a
transaction charge of $9 for each receive or deliver of book-entry securities
into or from the Custody Account of such Portfolio (but not for any such receive
or deliver of book-entry securities loaned by such Portfolio or constituting
collateral for a loan of securities, or any such receive or deliver in a
repurchase transaction representing (i) a cash sweep
investment for such Portfolio's account or (ii) the investment by
such Portfolio of cash collateral for a loan of securities);
(2) a
transaction charge of $40 for each receive or deliver into or from such
Portfolio's Custody Account of securities in physical form;
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(3) a
transaction charge of $3 for each principal payment on mortgage-backed and other
asset-backed securities in the Custody Account;
(4) a
transaction charge for each repurchase transaction in the Custody Account of
such Portfolio which represents a cash sweep investment for such Portfolio's
account, computed on the basis of a 360-day year and for the actual number of
days such repurchase transaction is outstanding at a rate of 0.10% (ten basis
points) per annum on the amount of the purchase price paid by such Portfolio in
such repurchase transaction;
(5) an
administrative fee for each purchase in the Custody Account of such Portfolio of
shares or other interests in a money market or other fund, which purchase
represents a cash sweep investment for such Portfolio's account, computed for
each day that there is a positive balance in such fund to equal 1/365th of 0.10%
(ten basis points) on the amount of such positive balance for such
day;
(6) a
charge of $7 for each "free" domestic transfer of funds from the Custody Account
of such Portfolio; and
(7) a
service charge for each holding of securities or other assets of such Portfolio
that are sold by way of private placement or in such other manner as to require
services by Custodian which in its reasonable judgment are materially in excess
of those ordinarily required for the holding of publicly traded securities in
the United States.
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International
Fees and Transaction Charges. Each Portfolio shall pay
Custodian the following fees and transaction charges for Foreign Assets in the
Custody Account of such Portfolio and for transactions by such Portfolio outside
the United States, all such fees and charges to be payable monthly:
(1) a
transaction charge of $35 for each receive or deliver of book-entry securities
into or from the Custody Account of such Portfolio that settle in Euroclear or
Clearstream;
(2) all
fees and charges of the Eligible Foreign Custodian (or overseas branch of an
Eligible Domestic Bank) and/or Eligible Foreign Securities Depository that are
payable by Custodian with respect to Foreign Assets in the Custody Account of
such Portfolio that are placed or maintained by Custodian with such Eligible
Foreign Custodian (or such overseas branch) and/or such Eligible
Foreign Securities Depository;
(3) a
fee, in such amount as shall be determined by Custodian, for each tax reclaim
made by Custodian with respect to a Foreign Asset of such Portfolio;
and
(4) a
charge of $7 for each "free" international transfer of funds from the Custody
Account of such Portfolio;
(5) a
service charge for each holding of securities or other assets of such Portfolio
that are sold by way of private placement or in such other manner as to require
services by Custodian which in its reasonable judgment are materially in excess
of those ordinarily required for the holding of Foreign Assets consisting of
publicly traded securities.
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