AMENDMENT NO. 1 TO MUTUAL FUND CUSTODY AGREEMENT
AMENDMENT
NO. 1
TO
THIS
AMENDMENT NO. 1 TO MUTUAL FUND CUSTODY AGREEMENT
(this "Amendment") is entered into as of _________, 2006, between Marketocracy
Capital Management LLC (“MCM”), Union Bank of California, N.A. (the "Bank") and
Alesco Global Advisors LLC (“AGA”), a limited liability company organized under
the laws of the State of California with its principal office and place of
business at 000 Xxxxx Xx Xxxxxx Xxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx
00000.
WHEREAS,
MCM and the Bank are parties to that certain Mutual Fund Custody Agreement
entered into as of December 17, 2003 (the “Agreement”), and the capitalized
terms not otherwised defined herein shall have the meanings ascribed to them
in
the Agreement;
WHEREAS,
pursuant to the terms of the Agreement, the Bank is to hold and administer
the
Securities and moneys of each Series of the Trust listed on Exhibit B
attached
to the Agreement, as may be amended from time to time;
WHEREAS,
MCM entered into the Agreement in its capacities as administrator and investment
adviser for each outstanding Fund and Series:
WHEREAS,
the Trust now has created a new Series, AGA Total Return Realty Fund, which
initially will be divided into two classes, Class A and Class K (the “Realty
Fund”), for which AGA, and not MCM, will act as the administrator and investment
adviser;
WHEREAS,
to avoid the time and expense of creating a separate mutual fund custody
agreement between the Bank and AGA in respect of the Realty Fund, the Bank,
MCM
and AGA desire that the Securities and moneys of the Realty Fund be hereafter
held and administered by the Bank pursuant to the terms of the
Agreement.
In
consideration of the mutual promises set forth below, MCM, the Bank and AGA
agree as follows:
1. Appointment
of Custodian.
1.1 Appointment.
Pursuant to this Amendment and the Agreement, AGA hereby constitutes and
appoints the Bank as the custodian with respect to all of the Securities and
moneys owned by, or in the possession of, the Trust allocable to the Realty
Fund, including without limitation those allocable to each class into which
the
Realty Fund has be divided and designated, during the term of the Agreement
applicable to the Realty Fund.
1.2 Acceptance.
The
Bank hereby accepts such appointment as the custodian with respect to all of
the
Securities and moneys owned by, or in the possession of, the Trust allocable
to
the Realty Fund, including without limitation those allocable to each class
thereof, and shall perform the duties of custodian as set forth in the Agreement
with respect thereto.
2. Terms
and Conditions of the Agreement Applicable to Realty Fund.
Solely
with respect to AGA’s appointment of the Bank, and the Bank’s acceptance, as
custodian for, and the administration by the Bank of, the Securities and moneys
of the Realty Fund pursuant to this Amendment and the Agreement during the
term
applicable to the Realty Fund, AGA accepts and agrees to, and shall be bound
by,
the terms and conditions of the Agreement as if AGA were a signatory and party
thereto in respect of the Realty Fund; provided,
however,
that:
2.1 References
to MCM.
Whenever used in the Agreement or in any Schedules thereto applicable to the
Realty Fund, each reference to MCM shall be deemed to be a reference to AGA,
and
not MCM, unless the context otherwise clearly requires.
2.2 Certain
Definitions.
Whenever used in the Agreement or in any Schedules thereto applicable to the
Realty Fund, the words and phrases set forth below shall deemed to have the
following meanings, unless the context otherwise clearly requires:
2.2.1 “Account”
shall
be deemed to mean each account maintained pursuant to Section 4 of the Agreement
by the Bank as the custodian with respect to all of the Securities and moneys
owned by or in the possession of the Trust allocable to the Realty Fund,
including without limitation those allocable to each Class thereof.
2.2.2 “Class”
shall
be deemed to refer to the classes of the Realty Fund shown on the Schedule
B
of the
Agreement applicable to the Realty Fund, and any such other Class of the Realty
Fund as may from time-to-time be created and designated in accordance with
the
provisions of the Trust's Restated Declaration of Trust and reflected in the
Schedule
B
to the
Agreement applicable to the Realty Fund.
2.2.3 “MCM
Money”
shall
be deemed to mean any money held in the Account of the Realty Fund, in respect
a
specific Class or otherwise, specifically allocated to be paid to AGA by the
Realty Fund, or a specific Class thereof, as the case may be.
2.2.4 “Series”
shall
be deemed to mean the Realty Fund, or if the context so requires or as otherwise
directed by AGA pursuant to Written Instructions, one or more of the Classes
thereof.
2.3. Notices
to AGA.
Any
notice authorized or required by this Amendment or the Agreement to be given
to
AGA, shall be in writing and addressed to AGA and mailed or delivered to it
at
its offices at
Alesco
Global Advisors LLC
000
Xxxxx
Xx Xxxxxx Xxxx, Xxxxx 000
Xxx
Xxxxx, Xxxxxxxxxx 00000
or
at
such other place as AGA may from time-to-time designate in writing.
2.4 Amended
Schedules.
2.4.1 Schedules
A and B for Funds and Series Other than Realty Fund.
The
current Schedules
A and B
of the
Agreement applicable to all Funds and Series advised and administrated by MCM
shall be amended to read in its entirety as set forth in Attachments
I and II
hereto,
each of which is incorporated therein and herein by this reference.
2.4.2 Realty
Fund Schedules.
The
Agreement shall be amended to add three Schedules
A, B and C
applicable to the Realty Fund, which read in their entirety as Attachments
III, IV and V
hereto,
respectively, each of which is incorporated therein and herein by this
reference.
3. Inter-Series
Indemnifications.
Without
in any way affecting or limiting either Section 10.1.4 or Section 10.1.5 of
the
Agreement as each such Section applies, respectively, to (i) the Bank, MCM
and
the Funds and Series other than the Realty Fund, and (ii) the Bank, AGA and
the
Realty Fund, each of MCM and AGA, in its respective capacities of investment
adviser and administrator of a Series (“Indemnifying Party”), shall indemnify
the other (“Indemnified Party”) and each Series advised and administered by
Indemnified Party (“Indemnified Series”) and hold the Indemnified Party and each
such Indemnified Series harmless from and against all losses, liabilities,
demands, claims, actions, expenses, attorneys' fees, and taxes (“Inter-Series
Losses”) that Indemnified Party or such Indemnified Series may suffer or incur
arising out of or in connection with the Indemnifying Party's performance or
nonperformance of this Amendment or the Agreement in respect of a Series advised
and administered by Indemnifying Party except to the extent such Inter-Series
Losses may arise from any action Indemnified Party takes or fails to take in
connection with this Amendment or the Agreement other than in good faith or
with
negligence, willful misconduct or willful failures to act by Indemnified Party
or its agents or employees.
2
4. Effect
of this Amendment.
Except
as otherwise expressly amended pursuant to Section 2.4.1 hereof, the Agreement
as applicable to MCM, the Bank and each outstanding Fund and Series other than
the Realty Fund shall continue in full force and effect without regard to this
Amendment.
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment No.1 to Mutual
Fund Custody Agreement to be executed by their respective officers there under
duly authorized as of the day and year first above written.
| MARKETOCRACY CAPITAL MANAGEMENT LLC | UNION BANK OF CALIFORNIA, N.A. |
| Investment Adviser and Administrator to All | |
| Series other than the Realty Fund | |
| By: | By: |
| Name: | Name: |
| Office: | Office: |
| Date: | Date: |
| ALESCO GLOBAL ADVISORS LLC | |
| Investment Adviser and Administrator to | |
| the Realty Fund | |
| By: | |
| Name: | |
| Office: | |
| Date: |
3
ATTACHMENT
I
to
Amendment
No. 1 to Mutual Fund Custody Agreement
dated
as December 13, 2003
Schedule
A
(for all Series other than Realty Fund)
AUTHORIZED
PERSONS
Part
I —
Authorized
Persons of Bank
[To
come]
Part
II —
Authorized
Persons of the Trust
Oral
Instructions:
Xxxxxxxx
X. Xxx, President
Xxxxx
X.
Xxxxx, Secretary
[To
come]
Written
Instructions:
Xxxxxxxx
X. Xxx, President
Xxxxx
X.
Xxxxx, Secretary
[To
come]
| MARKETOCRACY CAPITAL MANAGEMENT LLC | UNION BANK OF CALIFORNIA, N.A. |
| Investment Adviser and Administrator to All | |
| Series of Marketocracy Funds other than the Realty Fund | |
| By: | By: |
| Name: | Name: |
| Office: | Office: |
| Date: | Date: |
ATTACHMENT
II
to
Amendment
No. 1 to Mutual Fund Custody Agreement
dated
as December 13, 2003
Schedule
B
(for
all Series other than Realty Fund)
FUNDS
Marketocracy
Masters 100SM
Fund
| MARKETOCRACY CAPITAL MANAGEMENT LLC | UNION BANK OF CALIFORNIA, N.A. |
| Investment Adviser and Administrator to All | |
| Series of Marketocracy Funds other than the Realty Fund | |
| By: | By: |
| Name: | Name: |
| Office: | Office: |
| Date: | Date: |
ATTACHMENT
III
to
Amendment
No. 1 to Mutual Fund Custody Agreement
dated
as December 13, 2003
Schedule
A
(for Realty Fund)
AUTHORIZED
PERSONS
Part
I —
Authorized
Persons of Bank
[To
come]
Part
II —
Authorized
Persons of the Trust
Oral
Instructions:
Xxxxxxxx
X. Xxx, President
Xxxxx
X.
Xxxxx, Secretary
[To
come]
Written
Instructions:
Xxxxxxxx
X. Xxx, President
Xxxxx
X.
Xxxxx, Secretary
[To
come]
| ALESCO GLOBAL ADVISORS LLC | UNION BANK OF CALIFORNIA, N.A. |
| Investment Adviser and Administrator to | |
| the Realty Fund | |
| By: | By: |
| Name: | Name: |
| Office: | Office: |
| Date: | Date: |
ATTACHMENT
IV
to
Amendment
No. 1 to Mutual Fund Custody Agreement
dated
as December 13, 2003
Schedule
B
(for
Realty Fund)
FUNDS
AGA
Total
Return Realty Fund
Class
A
Shares
Class
K
Shares
| ALESCO GLOBAL ADVISORS LLC | UNION BANK OF CALIFORNIA, N.A. |
| Investment Adviser and Administrator to | |
| the Realty Fund | |
| By: | By: |
| Name: | Name: |
| Office: | Office: |
| Date: | Date: |
ATTACHMENT
V
to
Amendment
No. 1 to Mutual Fund Custody Agreement
dated
as December 13, 2003
Schedule
C
(for Realty Fund)
MUTUAL FUND SERVICES
SCHEDULE
OF FEES
| Custody: | Three Basis Points (3 BPS) of Net Asset Value |
| Transactions | |
| Depository Eligible | $0.00 |
| Depository Ineligible | $0.00 |
| Disbursements | $15.00 |
| Minimum Fee | $3,500.00 per annum |
*A
transaction is defined as any activity affecting assets, such as purchase,
sale
tender offer, stock dividend, free deliveries, maturity, exchange, redemption,
etc.
Fees for
foreign securities, foreign exchange transactions, international wires and
nonstandard services are quoted separately.
