CUSTODY AGREEMENT
This
AGREEMENT, dates as of June 28, 2000, by and between Cullen Funds Trust (the
"Trust"), a business trust organized under the laws of Delaware, acting with
respect to Cullen Value Fund (individually, a "Fund" and, collectively, the
"Funds"), each of them a series of the Trust and each of them operated and
administered by the Trust, and FIRSTAR BANK, N.A., a national banking
association (the "Custodian").
WITNESSETH:
WHEREAS,
the Trust desires that the Fund's Securities and cash be held and administered
by the Custodian pursuant to this Agreement; and
WHEREAS,
the Trust is an open-end management investment company registered under the
Investment Company Act of 1940, as amended (the “1940 Act”); and
WHEREAS,
the Custodian represents that it is a bank having the qualifications prescribed
in Section 26(a)(i) of the 1940 Act;
NOW,
THEREFORE, in consideration of the mutual agreements herein made, the trust
and
the Custodian hereby agree as follows:
ARTICLE
I
DEFINITIONS
Whenever
used in this Agreement, the following words and phrases, unless the context
otherwise requires, shall have the following meanings:
| 1.1 |
“Authorized
Person”
means any Officer or other person duly authorized by resolution of
the
Board of Trustees 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 Trustees, certified by an Officer, as may be received
by the
Custodian from time to time.
|
| 1.2 |
“Board
Of Trustees”
shall mean the Trustees from time to time serving under the Trust’s
Agreement and Declaration of Trust, as from time to time
amended.
|
| 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.
|
1
| 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 the Trust computes the
net
asset value of Shares of the Fund.
|
| 1.5 |
“Fund
Custody Account”
shall mean any of the accounts in the name of the Trust, which is
provided
for in Section 3.2 below.
|
| 1.6 |
“NASD”
shall mean The national Association of Securities Dealers,
Inc.
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| 1.7 |
“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 the Trust.
|
| 1.8 |
“Oral
Instructions”
shall mean instructions orally transmitted to and accepted by the
Custodian because of such instructions are: (i) reasonably believed
by the
Custodian to have been given by an Authorized Person, (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 Trust shall
cause al 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 trust. If Oral Instructions vary
from the
Written Instructions which purport to confirm them, the Custodian
shall
notify the trust of such variance but such Oral Instructions will
govern
unless the Custodian has not yet
acted.
|
| 1.9 |
“Proper
Instructions”
shall mean Oral Instructions or Written Instructions. Proper Instructions
may be continuing Written Instructions when deemed appropriate by
both
parties.
|
| 1.10 |
“Securities
Depository”
shall mean The Depository Trust Company and (provided that Custodian
shall
have received a copy of a resolution of the Board Of Trustees, certified
by an Officer, specifically approving the use of such clearing agency
as a
depository for the Fund) any other clearing agency registered with
the
Securities and Exchange Commission under Section 17A pf the Securities
an
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.
|
| 1.11 |
“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 to service.
|
2
| 1.12 |
“Shares”
shall mean, with respect to a Fund, the units of beneficial interest
issued by the trust on account of the
Fund.
|
| 1.13 |
“Sub-Custodian”
shall mean and include (i) any branch of a “U.S. Bank,” as that term is
described in Rule 17f-5 under the 1940 Act, (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 Funds based on the
standards
specified in Section 3.3 below. Such contract shall include provisions
that provide: (i) for indemnification or insurance arrangements (or
any
combination of the foregoing) such that the Funds will be adequately
protected against the risk of loss of assets held in accordance with
such
contract; (ii) that the Funds’ 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
Funds’ 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
funds or as being held by a third party for the benefit of the Funds;
(v)
that the Funds’ independent public accountants will be given access to
those records or confirmation of the contents of those records; and
(vi)
that the Funds will receive periodic reports with respect to the
safekeeping of the Funds’ 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 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, in their
entirety.
|
| 1.14 |
“Written
Instructions”
shall mean (i) written communications actually received by the Custodian
and signed by an Authorized Person, or (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
electromechanical 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 Of Trustees, a copy of which, certified
by an
Officer, shall have been delivered to the
Custodian.
|
ARTICLE
II
APPOINTMENT
OF CUSTODIAN
|
2.1
|
Appointment.
The Trust hereby constitutes and appoints 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.
|
3
|
2.2
|
Acceptance.
The Custodian hereby accepts appointment as such custodian and
agrees to
perform the duties thereof as hereinafter set
forth.
|
|
2.3
|
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 trust:
|
| a. |
A
copy of the Declaration of Trust certified by the
Secretary;
|
| b. |
A
copy of the Bylaws of the Trust certified by the
Secretary;
|
| c. |
A
copy of the resolution of the Board Of Trustees of the Trust appointing
the Custodian, certified by the
Secretary;
|
| d. |
A
copy of the then current Prospectus of the Fund;
and
|
| e. |
A
certification of the Chairman and Secretary of the Trust setting
forth the
names and signatures of the current Officers of the Trust and other
Authorized Persons.
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|
2.4
|
Notice
of Appointment of Dividend and Transfer Agent. The Trust agrees to
notify the Custodian in writing of the appointment, termination or
change
in appointment of any Dividend and Transfer Agent of the
Fund.
|
ARTICLE
III
CUSTODY
OF CASH AND SECURITIES
|
3.1
|
Segregation.
All Securities and non-cash property held by the Custodian for the
account
of the Fun (other than Securities maintained in a 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 Funds) and shall be
identified as subject to this
Agreement.
|
|
3.2
|
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
Trust 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.
|
| 3.3 |
Appointment
of Agents. (a) In its discretion, the Custodian may appoint one or
more Sub-Custodians to act as Securities Depositories or as sub-custodians
to hold Securities and cash of the Funds and to carry out such other
provisions of this Agreements 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.
|
4
|
(b)
|
If,
after the initial approval of Sub-Custodians by the Board Of Trustees
in
connection with this Agreement, by the Custodian wished to appoint
other
Sub-Custodians to hold property of the Fund, it will so notify the
Trust
and provide it with information 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.
The
Trust shall at the meeting of the Board Of Trustees next following
receipt
of such notice and information give a written approval or disapproval
of
the proposed action.
|
|
(c)
|
The
Agreement between the Custodian and each Sub-Custodian acting hereunder
shall contain the required provisions set forth in Rule 17f-5
(a)(1)(iii).
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|
(d)
|
At
the end of each calendar quarter, the Custodian shall provide written
reports notifying the Board of Trustees 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 Funds from any
Sub-Custodian that has ceased to meet the requirements of Rule 14f-5
under
the 1940 Act.
|
|
(e)
|
With
respect to its responsibilities under this Section 3.3, the Custodian
hereby warrants to the Trust 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
a Fund’s assets will be subject to reasonable care, based on the standards
applicable to custodians in the relevant market, if maintained
with each
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), the method of keeping custodial records, and the
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 Fund 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) | The Custodian shall establish a system to monitor the appropriateness of maintaining the Fund's assets with a particular Sub-Custodian and the cotnract governing the Funds' arrangements with such Sub-Custodian. |
|
3.3
|
Delivery
of Assets to Custodian. The Trust shall deliver, or cause to be
delivered, to the Custodian all of the Funds’ Securities, cash and other
assets, including (a) 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
the
period of this Agreement, and (b) all cash received by the Fund for
the
issuance, at any time during such period, of Shares. The Custodian
shall
not be responsible for such Securities, cash or other assets until
actually received by it.
|
5
|
3.4
|
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:
|
|
(a)
|
Prior
to a deposit of Securities of the Funds in any Securities Depository
or
Book-Entry System, the Trust shall deliver to the Custodian a resolution
of the Board Of Trustees, certified by an Officer, authorizing and
instruction the Custodian on an on-going basis to deposit in such
Securities Depository or Book-Entry System all Securities eligible
for
deposit therein and to 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.
|
|
(b)
|
Securities
of the Funds 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 included only asset
held
by the Custodian as a fiduciary, custodian or otherwise for
customers.
|
|
(c)
|
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 such
Fund.
|
|
(d)
|
If
Securities purchased by a 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 such Fund. If Securities
sold
by a 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 such
Fund.
|
|
(e)
|
The
Custodian shall provide the trust with copies of any report (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)
|
Anything
to the contrary in this Agreement notwithstanding, the Custodian
shall be
liable to the Trust for any loss or damage to the Fund resulting
(i) from
the use of a Book-Entry System or Securities Depository by reason
of any
negligence or willful misconduct on the part of Custodian or any
Sub-Custodian appointed pursuant to Section 3.3 above or any of its
or
their employees, or (ii) from failure of Custodian or any such
Sub-Custodian to enforce effectively such rights as it may have against
a
Book-Entry System or Securities Depository. At its election, the
Trust
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 Depository, if and to the extent
that the
Funds has not been made whole for any such loss or
damage.
|
6
|
3.5
|
Disbursements
for 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:
|
|
(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 appointed pursuant to Section 3.9 below or in proper
form
for transfer, or if the purchase of such Securities in 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 such 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 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 Trust and a bank which
is a
member of the Federal Reserve System or between the Trust and a primary
dealer in U.S. Government securities, against delivery of the purchased
Securities either in certificate from or through an entry crediting
the
Custodian’s account at a Book-Entry System or Securities Depository with
such Securities;
|
|
(b)
|
In
connection with the conversion, exchange or surrender, as set forth
in
Section 3.7(f) below, of Securities owned by the
Fund;
|
|
(c)
|
For
the payment of any dividends or capital gain distributions declared
by the
Fund;
|
|
(d)
|
In
payment of the redemption price of Shares as provided in Section
5.1
below;
|
7
|
(e)
|
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, trustee 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;
|
|
(f)
|
For
transfer in accordance with the provisions of any agreement among
the
Trust, the Custodian and 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’
|
|
(g)
|
For
transfer in accordance with the provision of any agreement among
the
Trust, 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/pr any contract market (or
any
similar organization or organizations) regarding account deposits
in
connection with transactions by the
Fund;
|
|
(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
|
|
(i)
|
For
any other proper purpose, but only upon receipt, in addition to Proper
Instructions, of a copy of a resolution of the Board Of Trustees,
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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|
3.6
|
Delivery
of Securities From Custody Account. Upon receipt of Proper
Instructions, the Custodian shall release and deliver Securities
from the
Fund Custody Account but only in the following
cases:
|
|
(a)
|
Upon
the sale of Securities for the account of the Fund but only against
receipt of payment therefore in case, by certified or cashiers check
or
bank credit;
|
|
(b)
|
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;
|
|
(c)
|
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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8
|
(d)
|
To
the issuer thereof or its agent (i) for transfer into the name of
the
Fund, the Custodian or any Sub-Custodian appointed pursuant to Section
3.3
above, or of 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 of number of units; provided
that, in any such case, the new Securities are to be delivered to
the
Custodian;
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|
(e)
|
To
the broker selling Securities, for examination in accordance with
the
“street delivery” custom;
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|
(f)
|
For
exchange or conversion pursuant to any plan or 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 cash, if any, are to be delivered to the
Custodian;
|
|
(g)
|
Upon
receipt of payment therefore 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;
|
|
(i)
|
For
delivery in connection with any loans of Securities of the Fund,
but only
against receipt of such collateral as the Trust shall have specified
to
the Custodian in Proper
Instructions;
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|
(j)
|
Fore
delivery as security in connection with any borrowings by the Fund
requiring a pledge of assets by the Trust, 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
Trust:
|
|
(l)
|
For
delivery in accordance with the provisions of any agreement among
the
Trust, 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;
|
|
(m)
|
For
delivery in accordance with the provisions of any agreement among
the
Trust, 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
|
9
|
(n)
|
For
any proper corporate purpose, but only upon receipt, in addition
to Proper
Instructions, of a copy of a resolution of the Board Of Trustees,
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.
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|
3.7
|
Actions
Not Requiring Proper Instructions. Unless otherwise instructed by the
Trust, the Custodian shall with respect to all Securities held for
the
Fund:
|
|
(a)
|
Subject
to Section 7.4 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;
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|
(b)
|
Present
for payment and , subject to Section 7.4 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;
|
|
(c)
|
Endorse
for collection, in the name of the Fund, checks, drafts and other
negotiable instruments;
|
|
(d)
|
Surrender
interim receipts or Securities in temporary from 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 Internal Revenue Service (“IRS”) and to the Trust at such
time, in such manner and containing such information as is prescribed
by
the IRS;
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|
(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
assets of the Fund.
|
10
|
3.8
|
Registration
and Transfer of Securities.
All Securities held for a Fund that are issued or issuable only in
bearer
form shall be held by the Custodian in that form, provided that nay
such
Securities shall be held in a Book-Entry System if eligible therefore.
All
other Securities held for the Fund may be registered in the name
of such
Fund, the Custodian, or any Sub-Custodian appointed pursuant to Section
3.3 above, or in the name of any nominee of any of them, or in the
name of
a Book-Entry System, Securities Depository or any nominee of either
thereof. The Trust 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 hereinabove referred
to or
in the name of a Book-Entry System or Securities Depository, any
Securities registered in the name of a
Fund.
|
|
3.9
|
Records.
|
|
(a)
|
The
Custodian shall maintain, by Fund, 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 therefore 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 Trust shall reasonably
request, or as may be required by the 1940 Act, including, but not
limited
to, Section 31 of the 1940 Act and rule 31a-2 promulgated
thereunder.
|
|
(b)
|
All
such books and records maintained by the Custodian 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 the Trust and at all times during the regular business
hours
of the 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 require
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.
|
|
3.10
|
Fund
Reports by Custodian.
The Custodian shall furnish the Trust 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 and from time to time,
the
Custodian shall furnish the Trust with a detailed statement of the
Securities and moneys held by the Custodian and the Sub-Custodians
for the
Fund under this Agreement.
|
11
|
3.11
|
Other
Reports by Custodian.
The 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
the
Custodian or any Sub-Custodian appointed pursuant to Section 3.3
above.
|
|
3.12
|
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 Trust such proxies, all proxy soliciting
materials
and all notices relating to such
Securities.
|
|
3.13
|
Information
on Corporate Actions. The Custodian shall promptly deliver to the
Trust
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 Trust
desires
to take action with respect to any tender offer, exchange offer or
other
similar transaction, the Trust shall notify the Custodian at least
five
Business days prior to the date on which the Custodian is to take
such
action. The Trust will provide or cause to be provided to the Custodian
all relevant information for any 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 (a)
the name
of the issuer or writer of such Securities, and the title or other
description thereof, (b) the number of shares, principal amount (and
accrued interest, if any) or other units purchased, (c) the date
of
purchase and settlement, (d) the purchase price per unit, (e) the
total
amount payable upon such purchase, and (f) the name of the person
to who
such amount is payable. The Custodian shall upon receipt of such
Securities purchased by such Fund pay out the moneys held for the
account
of a 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.
|
|
4.2
|
Liability
for Payment in Advance of Receipt of Securities Purchased.
In any and every case where payment of the purchase of Securities
for a
Fund is made by the Custodian in advance of receipt of the Securities
purchased but in the absence of specified Written Instructions to
so pay
in advance, the Custodian shall be liable to the Fund for such Securities
to the same extent as if the Securities had been received by the
Custodian.
|
12
|
4.3
|
Sale
of Securities. Promptly upon each sale of Securities by a Fund,
Written Instructions shall be delivered to the Custodian, specifying
(a)
the name of the issuer to writer of such Securities, and the title
or
other description thereof, (b) the number of shares, principal
amount (and
accrued interest, if any), or other units sold, (c) the date of
sale and
settlement, (d) the sale price per unit, (e) the total amount payable
upon
such sale, and (f) 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 therefore. 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, etc.
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 is 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 sold 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 Trust 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
REDEMPTION
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 redeem Shares of the Fund,
the
Custodian shall wire each amount specified in such Proper Instructions
to
or through such bank as the Trust may designate with respect to such
amount in such Proper Instructions.
|
13
|
5.2
|
No
Duty Regarding Paying Banks. The Custodian shall not be under any
obligation to effect payment or distribution by any bank designated
in
Proper Instructions given pursuant to Section 5.1 above of any amount
paid
by the Custodian to such bank in accordance with such Proper
Instructions.
|
ARTICLE
VI
SEGREGAGED
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 Trust,
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 Trust 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
Of
Trustees, 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 a single Fund only. All proper Instructions relating to a
segregated account shall specify the Fund involved.
14
ARTICLE
VII
CONCERNING
THE CUSTODIAN
|
7.1
|
Standard
of Care. The Custodian shall be held to the exercise of reasonable
care in carrying out it obligations under this Agreement, and shall
be
without liability to the Trust or any Fund for any loss, damage,
cost,
expense (including attorneys’ fees and disbursements), liability or claim
unless such loss, damage, cost, expense, liability or claim arises
from
negligence, bad faith or willful misconduct on its part or on the
part of
any Sub-Custodian appointed pursuant to Section 3.3 above. 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
Trust of any action take or omitted by the Custodian pursuant to
advice of
counsel. The Custodian shall not be under any obligation at any time
to
ascertain whether the Trust or the Fund is in compliance with the
1940
Act, the regulations thereunder, the provisions of the Trust’s charter
documents or by-laws, or its investment objectives and policies as
then in
effect.
|
|
7.2
|
Actual
Collection Required. The Custodian shall not be liable for, or
considered to the be the custodian of, any cash belonging to a 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.
|
|
7.3
|
No
Responsibility for Title, etc. So long as and to the extent that it is
in the exercise of reasonable care, 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.
|
|
7.4
|
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.
|
|
7.5
|
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.
|
|
7.6
|
Express
Duties Only. The Custodian shall have no duties or obligations
whatsoever except such duties and obligations as are specifically
set
forth in this Agreement, and not covenant or obligation shall be
implied
in this Agreement against the
Custodian.
|
15
|
7.7
|
Co-operation.
The Custodian shall cooperate with and supply necessary information
to the
entity or entities appointed by the Trust 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 Trust may
from
time to time request to enable the Trust to obtain, from year to
year,
favorable opinions from the Trust’s independent accountants with respect
to the Custodian’s activities hereunder in connection with (a) the
preparation of the Trust’s reports on Form N-1A and Form N-SAR and any
other reports required by the Securities and Exchange Commission,
and (b)
the fulfillment by the Trust of any other requirements of the Securities
and Exchange Commission.
|
ARTICLE
VII
INDEMNIFICATION
|
8.1
|
Indemnification
by Trust. The Trust shall indemnify and hold harmless the Custodian
and any Sub-Custodian appointed pursuant to Section 3.3 above, and
any
nominee of the Custodian or of such Sub-Custodian, from and against
any
loss, damage, cost, expense (including attorneys’ fees and disbursements),
liability (including, without limitation, liability arising under
the
Securities Act of 1933, the 1934 Act, the 1940 Act, and any state
or
foreign securities and/or banking laws) or claim arising directly
or
indirectly (a) from the fact that Securities are registered in the
name of
any such nominee, or (b) from any action or inaction by the Custodian
or
such Sub-Custodian (i) at the request or direction of or in reliance
on
the advice of the Trust, or (ii) upon Proper Instructions, or (c)
generally, from the performance of its obligations under this Agreement
or
any sub-custody agreement with a Sub-Custodian appointed pursuant
to
Section 3.3 above, provided that neither the Custodian nor any such
Sub-Custodian shall be indemnified and held harmless from and against
any
such loss, damage, cost, expense, liability or claim arising from
the
Custodian’s or such Sub-Custodian’s negligence, bad faith or willful
misconduct.
|
|
8.2
|
Indemnification
by Custodian. The Custodian shall indemnify and hold harmless the
Trust from and against any loss, damage, cost, expense (including
attorneys’ fees and disbursements), liability (including without
limitation, liability arising under the Securities Act of 1933, the
1934
Act, the 1940 Act, and any state or foreign securities and/or banking
laws) or claim arising from the negligence, bad faith or willful
misconduct of the Custodian or any Sub-Custodian appointed pursuant
to
Section 3.3 above, or any nominee of the Custodian or of such
Sub-Custodian.
|
|
8.3
|
Indemnity
to be Provided. It the Trust requests the Custodian to take any action
with respect to Securities, which man, in the opinion of the Custodian,
result in the Custodian or its nominees becoming liable for the payment
of
money or incurring liability of some other form, the Custodian shall
not
be required to take such action until the Trust shall have provided
indemnity therefore to the Custodian in an amount and form satisfactory
to
the Custodian.
|
16
|
8.4
|
Security.
If the Custodian advances cash or Securities to the Fund for any
purpose,
either at the Trust’s request or as otherwise contemplates in this
Agreement, or in the event that the Custodian or its nominees incurs,
in
connection with its performance under this Agreement, any loss, damage,
cost, expense (including attorneys’ fees and disbursements), liability or
claim (except such as may arise from its or its nominee’s negligence, bad
faith or willful misconduct), then in any such event, any property
at any
time held for the account of such 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.
|
ARTICLE
IX
FORCE
MAJEURE
Neither
the Custodian nor the Trust 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; 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 the Custodian in the event of a failure
or delay (i) shall not discriminate against the Funds 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
X
EFFECTIVE
PERIOD; TERMINATION
|
10.1
|
Effective
Period. This Agreement shall become effective as of its execution and
shall continue in full force and effect until terminated as hereinafter
provided.
|
|
10.2
|
Termination.
Either party hereto may terminate this Agreement 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. If a successor custodian shall have been appointed by
the
Board Of Trustees, the Custodian shall, upon receipt of a notice
of
acceptance by the successor custodian, on such specified date of
termination (a) 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 (b) transfer any Securities held in a Book-Entry System
or
Securities Depository to an account of or for the benefit of the
Funds at
the successor custodian, provided that the Trust shall have paid
the
Custodian all fees, expenses and other amounts to the payment or
reimbursement of which it shall then be entitled. Upon such delivery
and
transfer, the Custodian shall be relieved of all obligations under
this
Agreement. The Trust 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.
|
17
|
10.3
|
Failure
to Appoint Successor Custodian. If a successor custodian is not
designated by the Trust on or before the date of termination specified
pursuant to Section 10.1 above, then the Custodian shall have the
right to
deliver to a bank or corporation company of its own selection, which
(a)
is a “bank” as defined in the 1940 Act and (b) has aggregate capital,
surplus and undivided profits as shown on its then 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 Funds at such bank or trust company all Securities
of the Funds 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 the Agreement and the Custodian shall be
relieved of all obligations under this
Agreement.
|
ARTICLE
XI
COMPENSATION
OF CUSTODIAN
The
Custodian shall be entitled to compensation as agreed upon from time to time
by
the Trust and the Custodian. The fees and other charges in effect on the date
hereof and applicable to the Fund are set forth in Exhibit C attached
hereto.
ARTICLE
XII
LIMITATION
OF LIABILITY
It
is
expressly agreed that the obligations of the Trust hereunder shall not be
binding upon any of the Trustees, shareholders, nominees, officers, agents
or
employees of the Trust personally, but shall bind only the property of the
Trust
as provided in the Trust’s Agreement and Articles of Incorporation, as from time
to time amended. The execution and delivery of this Agreement have been
authorized by the trustees, and this Agreement has been signed and delivered
by
an authorized officer of the Trust, acting as such, and neither such
authorization by the Trustees 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 corporation
property of the Trust as provided in the above-mentioned Agreement and Articles
of Incorporation.
18
ARTICLE
XIII
NOTICES
Unless
otherwise specified herein, all demands, notices, instructions, and other
communications to be given hereunder shall be in writing and shall be sent
or
delivered to the recipient a the address set forth after its name
hereinbelow:
To
the
Trust:
Attn:
President
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
XX 00000
To
Custodian:
Firstar
Bank, N.A.
000
Xxxxxx Xxxxxx, X.X. Xx-XX-00XX
Xxxxxxxxxx,
Xxxx 00000
Attention:
Mutual Fund Custody Services
Facsimile:
(000) 000-0000
or
at
such other address as either party shall have provided to the other by notice
given in accordance with this Article XIII. Writing shall include transmissions
by or through teletype, facsimile, central processing unit connection, on-line
terminal and magnetic tape.
ARTICLE
XIV
MISCELLANEOUS
|
14.1
|
Governing
Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Ohio.
|
|
14.2
|
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 the Fund and such other printed
matter as merely identifies Custodian as custodian for the Fund.
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.
|
|
14.3
|
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.
|
|
14.4
|
Amendments.
This Agreement cannot be changed orally and no amendment to this
Agreement
shall be effective unless evidenced by an instrument in writing executed
by the parties hereto.
|
19
|
14.5
|
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.
|
|
14.6
|
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.
|
|
14.7
|
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
hereto.
|
|
14.8
|
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 and delivered in its name and on its behalf by its representatives
thereunto duly authorized, all as of the day and year first above
written.
|
ATTEST:
|
||
|
By:
/s/Xxxxx Xxxxxx
|
||
|
ATTEST:
|
FIRSTAR
BANK, N.A.
|
|
|
By:
/s/Xxxxxx Xxxxxxxxx
|
||
20
EXHIBIT
A
AUTHORIZED
PERSONS
Set
forth
below are the names and specimen signatures of the persons authorized by the
Trust to administer the Fund Custody Accounts.
|
Authorized
Persons
|
Specimen Signatures |
|
President:
|
|
|
Treasurer:
|
|
|
Vice
President:
|
|
|
Adviser
Employees:
|
|
|
Transfer
Agent/Fund Accountant
|
|
|
Employees:
|
|
21
AMENDMENT
TO THE CUSTODY AGREEMENT
THIS
AMENDMENT dates as of January 1, 2002 to the Custody Agreement dated as of
June
28, 2000, by and between Cullen Funds Trust, a Delaware business trust, and
Firstar Bank, N.A. shall be as follows:
Effective
January 1, 2002, the name Firstar Bank, N.A. has been changed to U.S. Bank,
N.A.
Accordingly, all references to Firstar Bank, N.A. in this Agreement should
be
replaced with U.S. Bank, N.A. Similarly, any references to Firstar Mutual Fund
Services, LLC should be replaced with U.S. Bancorp Fund Services,
LLC.
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
by
a duly authorized officer on one or more counterparts as of the day and year
first written above.
|
X.X.XXXX,
N.A.
|
||
|
By:
/s/Xxxxx Xxxxxx
|
By:
/s/Xxxx Xxxxxx
|
|
