CLOSED-END FUND CUSTODY AGREEMENT
CUSTODY
AGREEMENT
THIS
AGREEMENT is made and entered into as of this 15th day of July, 2009, by and
among HATTERAS 1099 ADVANTAGE
INSTITUTIONAL FUND, a Delaware statutory trust (the “Master Fund”), HATTERAS 1099 ADVANTAGE FUND,
a Delaware statutory trust (the
“Feeder Fund”), and U.S. BANK NATIONAL
ASSOCIATION, a national
banking association organized and existing under the laws of the United States
of America with its principal place of business at Minneapolis, Minnesota (the
“Custodian”). The Master Fund and Feeder Fund are collectively
referred to herein as the “Funds”.
WHEREAS, each Fund is registered under the Investment
Company Act of 1940, as amended (the “1940 Act”), as a closed-end management investment
company and is authorized
to issue shares of beneficial interest in separate series, with each such series
representing interests in a separate portfolio of securities and other
assets;
WHEREAS, the Custodian is a bank having
the qualifications prescribed in Section 26(a)(1) of the 1940 Act;
and
WHEREAS, the Funds desire to retain the Custodian to act
as custodian of all of the Funds’ cash and securities.
NOW, THEREFORE, in consideration of the
promises and mutual covenants herein contained, and other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties hereto,
intending to be legally bound, do hereby agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Whenever used in this Agreement, the
following words and phrases shall have the meanings set forth below, unless the
context otherwise requires:
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1.1
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“Authorized
Person” means any
Officer or other person duly authorized by resolution of the Board of
Trustees to give Written Instructions on behalf of the Funds 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.
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1.2
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“Board
of Trustees” or “Board” shall mean the trustees from time
to time serving under the Funds' governing
documents, as amended
from time to time.
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1.3
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“Book-Entry
System” shall mean a
federal book-entry system as provided in Subpart O of Treasury Circular
Xx. 000, 00 XXX 306, in Subpart B of 31 CFR Part 350, or in such
book-entry regulations of federal agencies as are substantially in the
form of such Subpart O.
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1.4
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“Business
Day” shall mean any
day recognized as a settlement day by The New York Stock Exchange, Inc.,
and any other day for which a Fund computes the net asset value of Shares of
such Fund.
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1.5
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“FINRA” shall
mean the Financial Industry Regulatory
Authority
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1
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1.6
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“Fund
Custody Account”
shall mean any account in the name of a Fund, which is provided for in Section
3.2 below.
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1.7
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“IRS” shall mean the Internal Revenue
Service.
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1.8
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“Officer” shall mean the President, any
Vice President, any Assistant Vice President, the Secretary, any Assistant
Secretary, the Treasurer, or any Assistant Treasurer of a
Fund.
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1.9
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“Proper
Instructions” shall
mean Written Instructions.
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1.10
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“SEC” shall mean the Securities and
Exchange Commission.
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1.11
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“Securities” shall include, without
limitation, common and preferred stocks, bonds, call options, put options,
debentures, notes, bank certificates of deposit, bankers’ acceptances,
mortgage-backed securities or other obligations, and any certificates,
receipts, warrants or other instruments or documents representing rights
to receive, purchase or subscribe for the same, or evidencing or
representing any other rights or interests therein, or any similar
property or assets that the Custodian has the facilities to clear and
service.
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1.12
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“Securities
Depository” shall
mean The Depository Trust Company and any other clearing agency registered
with the SEC under Section 17A of the Securities Exchange Act of 1934, as
amended (the “1934 Act”), which acts as a system for the central handling
of Securities where all Securities of any particular class or series of an
issuer deposited within the system are treated as fungible and may be
transferred or pledged by bookkeeping entry without physical delivery of
the Securities.
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1.13
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“Shares” shall mean, with respect to a
Fund, the units of beneficial interest issued by such Fund on account of such
Fund.
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1.14
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“Sub-Custodian” shall mean and include
(i) any branch of a “U.S. bank,” as that term is defined in
Rule 17f-5 under the 1940 Act, and (ii) any “eligible
foreign custodian,” as that term is defined in Rule 17f-5 under the
1940 Act, having a contract with the Custodian which the Custodian
has determined will provide reasonable care of assets of the Funds based
on the standards specified in Section 3.3 below. Such contract
shall be in writing and shall include provisions that provide:
(i) for indemnification or insurance arrangements (or any combination
of the foregoing) such that the 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
Funds. Such contract may contain, in lieu of any or all of the
provisions specified in (i) – (vi) above, such other provisions that the
Custodian determines will provide, in their entirety, the same or a
greater level of care and protection for Fund assets as the specified
provisions.
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2
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1.15
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“Written
Instructions” shall
mean (i) written communications actually received by the Custodian and
signed by any two Authorized Persons, (ii) communications by telex or any
other such system from one or more persons reasonably believed by the
Custodian to be Authorized Persons, or (iii) communications between
electro-mechanical or electronic devices provided that the use of such
devices and the procedures for the use thereof shall have been approved by
resolutions of the Board, a copy of which, certified by an Officer, shall
have been delivered to the
Custodian.
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ARTICLE II
APPOINTMENT OF
CUSTODIAN
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2.1
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Appointment. The Funds hereby appoint the Custodian as custodian of all
Securities and cash owned by or in the possession of the Funds at any time
during the period of this Agreement, on the terms and conditions set forth
in this Agreement, and the Custodian hereby accepts such appointment and
agrees to perform the services and duties set forth in this
Agreement. The services and duties of the Custodian shall be
confined to those matters expressly set forth herein, and no implied
duties are assumed by or may be asserted against the Custodian
hereunder.
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2.2
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Documents
to be Furnished. The following
documents, including any amendments thereto, will be provided
contemporaneously with the execution of the Agreement to the Custodian by
the Funds:
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(a)
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A copy of the Funds’ governing documents,
certified by the Secretary or other Authorized Person;
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(b)
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A copy of the resolution of the
Board appointing the Custodian, certified by the Secretary or other Authorized Person;
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(c)
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A copy of the current prospectus
of each Fund (the “Prospectus”); and
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(d)
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A certification of the Chairman or
the President and the Secretary or other Authorized Person of the
Funds setting forth the names and
signatures of the current Officers of the Funds and other Authorized
Persons.
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2.3
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Notice
of Appointment of Transfer Agent. Each Fund agrees to notify the Custodian in
writing of the appointment, termination or change in appointment of any
transfer agent of such Fund.
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ARTICLE III
CUSTODY OF CASH AND
SECURITIES
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3.1
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Segregation. All Securities and
non-cash property held by the Custodian for the account of the Funds
(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 series of the Funds) and shall be identified as
subject to this Agreement.
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3.2
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Fund
Custody Accounts. As to the Funds, the
Custodian shall open and maintain in its trust department a custody
account in the name of the Funds coupled with the name of the
Funds, subject only to draft or order of the Custodian, in which the
Custodian shall enter and carry all Securities, cash and other assets of
the Funds which are delivered to
it.
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3
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3.3
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Appointment
of Agents.
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(a)
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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 Agreement as it may determine; provided,
however, that the appointment of any such agents and maintenance of any
Securities and cash of the Funds shall be at the Custodian’s expense and
shall not relieve the Custodian of any of its obligations or liabilities
under this Agreement. The Custodian shall be liable for the
actions of any Sub-Custodians appointed by it as if such actions had been
done by the Custodian.
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(b)
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If, after the initial approval of
Sub-Custodians by the Boards in connection with this Agreement,
the Custodian wishes to appoint other Sub-Custodians to hold property of
the Funds, it will so notify the
Funds and provide them with information reasonably
necessary to determine any such new Sub-Custodian’s eligibility under Rule
17f-5 under the 1940 Act, including a copy of the proposed agreement with
such Sub-Custodian. At the meeting of the Board next following
receipt of such notice and information, the Funds shall give their written approval
or disapproval of the proposed
action.
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(c)
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The Agreement between the
Custodian and each Sub-Custodian acting hereunder shall contain the
required provisions set forth in Rule 17f-5(c)(2) under the 1940
Act.
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(d)
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At the end of each calendar
quarter, the Custodian shall provide written reports notifying the
Boards of the placement of the
Securities and cash of the Funds with a particular Sub-Custodian
and of any material changes in the Fund’s 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 17f-5 under the 1940
Act.
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(e)
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With respect to its
responsibilities under this Section 3.3, the Custodian hereby warrants to
the Funds that it agrees to exercise
reasonable care, prudence and diligence such as a person having
responsibility for the safekeeping of property of the Funds. The Custodian further
warrants that the Funds’ assets will be subject to
reasonable care if maintained with a Sub-Custodian, after considering all
factors relevant to the safekeeping of such assets, including, without
limitation: (i) the Sub-Custodian’s practices, procedures, and
internal controls for certificated securities (if applicable), its method
of keeping custodial records, and its security and data protection
practices; (ii) whether the Sub-Custodian has the
requisite financial strength to provide reasonable care for Fund assets;
(iii) the Sub-Custodian’s general reputation and standing and,
in the case of a Securities Depository, the Securities Depository’s
operating history and number of participants; and (iv) whether
the Funds will have jurisdiction over and
be able to enforce judgments against the Sub-Custodian, such as by virtue
of the existence of any offices of the Sub-Custodian in the United States
or the Sub-Custodian’s consent to service of process in the United
States.
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4
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(f)
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The Custodian shall establish a
system to monitor the appropriateness of maintaining the Funds’ assets with a particular
Sub-Custodian and the contract governing the Funds’ arrangements with such
Sub-Custodian.
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3.4
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Delivery
of Assets to Custodian. The Funds shall deliver, or cause to be
delivered, to the Custodian all of the Funds’ Securities, cash and other
investment assets, including (i) all payments of income, payments of
principal and capital distributions received by the Funds with respect to
such Securities, cash or other assets owned by the Funds at any time
during the period of this Agreement, and (ii) all cash received by the
Funds for the issuance of Shares. The Custodian shall not be
responsible for such Securities, cash or other assets until actually
received by it.
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3.5
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Securities
Depositories and Book-Entry Systems. The Custodian may
deposit and/or maintain Securities of the Funds in a Securities Depository
or in a Book-Entry System, subject to the following
provisions:
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(a)
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The Custodian, on an on-going
basis, shall deposit in a Securities Depository or Book-Entry System all
Securities eligible for deposit therein and shall make use of such
Securities Depository or Book-Entry System to the extent possible and
practical in connection with its performance hereunder, including, without
limitation, in connection with settlements of purchases and sales of
Securities, loans of Securities, and deliveries and returns of collateral
consisting of Securities.
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(b)
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Securities of the 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 includes only assets held by the Custodian as
a fiduciary, custodian or otherwise for
customers.
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(c)
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The records of the Custodian with
respect to Securities of the Funds maintained in a Book-Entry System or
Securities Depository shall, by book-entry, identify such Securities as
belonging to the Funds.
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(d)
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If Securities purchased by the
Funds are to be held in a Book-Entry System or Securities Depository, the
Custodian shall pay for such Securities upon (i) receipt of advice
from the Book-Entry System or Securities Depository that such Securities
have been transferred to the Depository Account, and (ii) the making
of an entry on the records of the Custodian to reflect such payment and
transfer for the account of the Funds. If Securities sold by
the Funds are held in a Book-Entry System or Securities Depository, the
Custodian shall transfer such Securities upon (i) receipt of advice
from the Book-Entry System or Securities Depository that payment for such
Securities has been transferred to the Depository Account, and
(ii) the making of an entry on the records of the Custodian to
reflect such transfer and payment for the account of the
Funds.
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(e)
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The Custodian shall provide the
Funds with copies of any reports (obtained by the Custodian from a
Book-Entry System or Securities Depository in which Securities of the
Funds 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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5
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(f)
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Notwithstanding anything to the
contrary in this Agreement, the Custodian shall be liable to a Fund for any loss or damage to
such Fund resulting from (i) the use of a
Book-Entry System or Securities Depository by reason of any negligence or
willful misconduct on the part of the Custodian or any Sub-Custodian, or
(ii) failure of the Custodian or any Sub-Custodian to enforce effectively
such rights as it may have against a Book-Entry System or Securities
Depository. At its election, a Fund 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 such
Fund arising from the use of such Book-Entry System or Securities
Depository, if and to the extent that such Fund has not been made whole
for any such loss or damage.
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(g)
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With respect to its
responsibilities under this Section 3.5 and pursuant to
Rule 17f-4 under the 1940 Act, the Custodian hereby warrants to the
Funds that it agrees to
(i) exercise due care in accordance with reasonable commercial
standards in discharging its duty as a securities intermediary to obtain
and thereafter maintain such assets, (ii) provide, promptly upon
request by the Funds, such reports as are available
concerning the Custodian’s internal accounting controls and financial
strength, and (iii) require any Sub-Custodian to exercise due care in
accordance with reasonable commercial standards in discharging its duty as
a securities intermediary to obtain and thereafter maintain assets
corresponding to the security entitlements of its entitlement
holders.
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3.6
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Disbursement
of Moneys from Fund Custody Account. Upon receipt of
Proper Instructions, the Custodian shall disburse moneys from the Fund
Custody Account but only in the following
cases:
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(a)
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For the purchase of Securities for
the Funds but only in accordance with Section 4.1 of this Agreement
and only (i) in the case of Securities (other than options on
Securities, futures contracts, and options on futures contracts), against
the delivery to the Custodian (or any Sub-Custodian) of such Securities
registered as provided in Section 3.9 below or in proper form for
transfer, or if the purchase of such Securities is effected through a
Book-Entry System or Securities Depository, in accordance with the
conditions set forth in Section 3.5 above; (ii) in the case of
options on Securities, against delivery to the Custodian (or any
Sub-Custodian) of such receipts as are required by the customs prevailing
among dealers in such options; (iii) in the case of futures contracts
and options on futures contracts, against delivery to the Custodian (or
any Sub-Custodian) of evidence of title thereto in favor of the Funds or
any nominee referred to in Section 3.9 below; and (iv) in the
case of repurchase or reverse repurchase agreements entered into between
the Funds and a bank which is a member of
the Federal Reserve System or between the Funds and a primary dealer in U.S.
Government securities, against delivery of the purchased Securities either
in certificate form or through an entry crediting the Custodian’s account
at a Book-Entry System or Securities Depository with such
Securities;
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(b)
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In connection with the conversion,
exchange or surrender, as set forth in Section 3.7(f) below, of Securities
owned by the Funds;
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(c)
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For the payment of any dividends
or capital gain distributions declared by the
Funds;
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6
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(d)
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In payment of the price of Shares
repurchased in open market purchases or through tender offers as provided
in Section 5.1 below;
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(e)
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For the payment of any expense or
liability incurred by the Funds, including, but not limited to, the
following payments for the account of the Funds: interest;
taxes; administration, investment advisory, accounting, auditing, transfer
agent, custodian, trustee and legal fees; and other operating expenses of
the Funds; in all cases, whether or not such expenses are to be in whole
or in part capitalized or treated as deferred
expenses;
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(f)
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For transfer in accordance with
the provisions of any agreement among the Funds, the Custodian, and a
broker-dealer registered under the 1934 Act and a member of FINRA,
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
Funds;
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(g)
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For transfer in accordance with
the provisions of any agreement among the Funds, the Custodian, and a futures
commission merchant registered under the Commodity Exchange Act, relating
to compliance with the rules of the Commodity Futures Trading Commission
and/or any contract market (or any similar organization or organizations)
regarding account deposits in connection with transactions by the
Funds;
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(h)
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For the funding of any
uncertificated time deposit or other interest-bearing account with any
banking institution (including the Custodian), which deposit or account
has a term of one year or less;
and
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(i)
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For any other proper purpose, but
only upon receipt, in addition to Proper Instructions, of a copy of a
resolution of the Board, certified by an Officer, specifying the amount
and purpose of such payment, declaring such purpose to be a proper
corporate purpose, and naming the person or persons to whom such payment
is to be made.
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3.7
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Delivery
of Securities from Fund Custody Account. Upon receipt of
Proper Instructions, the Custodian shall release and deliver Securities
from the Funds’ Custody Accounts but only in the following
cases:
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(a)
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Upon the sale of Securities for
the account of the Funds but only against receipt of payment in cash, by
certified or cashiers check or bank
credit;
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(b)
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In the case of a sale effected
through a Book-Entry System or Securities Depository, in accordance with
the provisions of Section 3.5
above;
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(c)
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To an offeror’s depository agent
in connection with tender or other similar offers for Securities of the
Funds; provided that, in any such case, the cash or other consideration is
to be delivered to the
Custodian;
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(d)
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To the issuer thereof or its agent
(i) for transfer into the name of the Funds, the Custodian or any
Sub-Custodian, or any nominee or nominees of any of the foregoing, or (ii)
for exchange for a different number of certificates or other evidence
representing the same aggregate face amount or number of units; provided
that, in any such case, the new Securities are to be delivered to the
Custodian;
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(e)
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To the broker selling the
Securities, for examination in accordance with the “street delivery”
custom;
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(f)
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For exchange or conversion
pursuant to any plan of merger, consolidation, recapitalization,
reorganization or readjustment of the issuer of such Securities, or
pursuant to provisions for conversion contained in such Securities, or
pursuant to any deposit agreement, including surrender or receipt of
underlying Securities in connection with the issuance or cancellation of
depository receipts; provided that, in any such case, the new Securities
and cash, if any, are to be delivered to the
Custodian;
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(g)
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Upon receipt of payment pursuant
to any repurchase or reverse repurchase agreement entered into by the
Funds;
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(h)
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In the case of warrants, rights or
similar Securities, upon the exercise thereof, provided that, in any such
case, the new Securities and cash, if any, are to be delivered to the
Custodian;
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(i)
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For delivery in connection with
any loans of Securities of the Funds, but only against receipt of such
collateral as the Funds shall have specified to the
Custodian in Proper
Instructions;
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(j)
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For delivery as security in
connection with any borrowings by the Funds requiring a pledge of assets
by the Funds, but only against receipt by the
Custodian of the amounts
borrowed;
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(k)
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Pursuant to any authorized plan of
liquidation, reorganization, merger, consolidation or recapitalization of
the Funds;
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(l)
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For delivery in accordance with
the provisions of any agreement among the Funds, the Custodian and a
broker-dealer registered under the 1934 Act and a member of FINRA,
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
Funds;
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(m)
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For delivery in accordance with
the provisions of any agreement among the Funds, the Custodian, and a futures
commission merchant registered under the Commodity Exchange Act, relating
to compliance with the rules of the Commodity Futures Trading Commission
and/or any contract market (or any similar organization or organizations)
regarding account deposits in connection with transactions by the Funds;
or
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(n)
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For any other proper corporate
purpose, but only upon receipt, in addition to Proper Instructions, of a
copy of a resolution of the Board, certified by an Officer, specifying the
Securities to be delivered, setting forth the purpose for which such
delivery is to be made, declaring such purpose to be a proper corporate
purpose, and naming the person or persons to whom delivery of such
Securities shall be made.
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3.8
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Actions
Not Requiring Proper Instructions. Unless otherwise
instructed by the Funds, the Custodian shall with respect
to all Securities held for the
Funds:
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(a)
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Subject to Section 9.4 below,
collect on a timely basis all income and other payments to which the Funds
are entitled either by law or pursuant to custom in the securities
business;
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(b)
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Present for payment and, subject
to Section 9.4 below, collect on a timely basis the amount payable upon
all Securities which may mature or be called, redeemed, or retired, or
otherwise become payable;
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(c)
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Endorse for collection, in the
name of the Funds, checks, drafts and other negotiable
instruments;
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(d)
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Surrender interim receipts or
Securities in temporary form for Securities in definitive
form;
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(e)
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Execute, as custodian, any
necessary declarations or certificates of ownership under the federal
income tax laws or the laws or regulations of any other taxing authority
now or hereafter in effect, and prepare and submit reports to the IRS and
the Funds at such time, in such manner and
containing such information as is prescribed by the
IRS;
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(f)
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Hold for the Funds, 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 Funds;
and
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(g)
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In general, and except as
otherwise directed in Proper Instructions, attend to all non-discretionary
details in connection with the sale, exchange, substitution, purchase,
transfer and other dealings with Securities and other assets of the
Funds.
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3.9
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Registration
and Transfer of Securities. All Securities held
for the Funds that are issued or issuable only in bearer form shall be
held by the Custodian in that form, provided that any such Securities
shall be held in a Book-Entry System if eligible. All other
Securities held for the Funds may be registered in the name of the Funds,
the Custodian, a Sub-Custodian, or any nominee of any of them, or in the
name of a Book-Entry System, Securities Depository or any nominee of
either thereof. The Funds shall furnish to the Custodian
appropriate instruments to enable the Custodian to hold or deliver in
proper form for transfer, or to register in the name of any of the
nominees referred to above or in the name of a Book-Entry System or
Securities Depository, any Securities registered in the name of the
Funds.
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3.10
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Records.
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(a)
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The Custodian shall maintain
complete and accurate records with respect to Securities, cash or other
property held for the Funds, including (i) journals or other records of
original entry containing an itemized daily record in detail of all
receipts and deliveries of Securities and all receipts and disbursements
of cash; (ii) ledgers (or other records) reflecting (A) Securities in
transfer, (B) Securities in physical possession, (C) monies and Securities
borrowed and monies and Securities loaned (together with a record of the
collateral and substitutions of such collateral), (D) dividends and
interest received, and (E) dividends receivable and
interest receivable; and (iii) canceled checks and bank records
related thereto. The Custodian shall keep such other books and
records of the Funds as the Funds shall reasonably request, or as
may be required by the 1940 Act, including, but not limited to, Section 31
of the 1940 Act and Rule 31a-2 promulgated
thereunder.
|
9
|
(b)
|
All such books and records
maintained by the Custodian shall (i) be maintained in a form acceptable
to the Funds and in compliance with the rules
and regulations of the SEC, (ii) be the property of the Funds 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
Funds and employees or agents of the
SEC, and (iii) if required to be maintained by Rule 31a-1 under the 1940
Act, be preserved for the periods prescribed in Rule 31a-2 under the 0000
Xxx.
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|
3.11
|
Fund
Reports by Custodian. The Custodian shall
furnish the Funds with a daily activity statement
and a summary of all transfers to or from the Fund Custody Account on the
day following such transfers. At least monthly, the Custodian
shall furnish the Funds with a detailed statement of the
Securities and moneys held by the Custodian and the Sub-Custodians for the
Funds under this Agreement.
|
|
3.12
|
Other
Reports by Custodian. As the Funds may reasonably request from time
to time, the Custodian shall provide the Funds with reports on the internal
accounting controls and procedures for safeguarding Securities which are
employed by the Custodian or any
Sub-Custodian.
|
|
3.13
|
Proxies
and Other Materials. The Custodian shall
cause all proxies relating to Securities which are not registered in the
name of the Funds to be promptly executed by the registered holder of such
Securities, without indication of the manner in which such proxies are to
be voted, and shall promptly deliver to the Funds such proxies, all proxy
soliciting materials and all notices relating to such
Securities.
|
|
3.14
|
Information
on Corporate Actions. The Custodian shall
promptly deliver to the Funds all information received by the
Custodian and pertaining to Securities being held by the Funds with
respect to optional tender or exchange offers, calls for redemption or
purchase, or expiration of rights as described in the Standards of Service
Guide attached as Exhibit
B. If the
Funds
desire to take action
with respect to any tender offer, exchange offer or other similar
transaction, the Funds shall notify the Custodian at
least five Business Days prior to the date on which the Custodian is to
take such action. The Funds will provide or cause to be
provided to the Custodian all relevant information for any Security which
has unique put/option provisions at least five Business Days prior to the
beginning date of the tender
period.
|
ARTICLE IV
PURCHASE AND SALE OF INVESTMENTS OF THE
FUNDS
|
4.1
|
Purchase
of Securities. Promptly upon each
purchase of Securities for the Funds, Written Instructions shall be
delivered to the Custodian, specifying (i) the name of the issuer or
writer of such Securities, and the title or other description thereof,
(ii) the number of shares, principal amount (and accrued interest, if any)
or other units purchased, (iii) the date of purchase and settlement, (iv)
the purchase price per unit, (v) the total amount payable upon such
purchase, and (vi) the name of the person to whom such amount is
payable. The Custodian shall upon receipt of such Securities
purchased by the Funds pay out of the moneys held for the account of the
Funds 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 a Fund, if in the respective Fund Custody Account there is
insufficient cash available to such Fund for which such purchase was
made.
|
10
|
4.2
|
Liability
for Payment in Advance of Receipt of Securities Purchased. In any and every case
where payment for the purchase of Securities for the Funds is made by the
Custodian in advance of receipt of the Securities purchased and in the
absence of specified Written Instructions to so pay in advance, the
Custodian shall be liable to the Funds for such
payment.
|
|
4.3
|
Sale
of Securities. Promptly upon each
sale of Securities by the Funds, Written Instructions shall be delivered
to the Custodian, specifying (i) the name of the issuer or writer of such
Securities, and the title or other description thereof, (ii) the number of
shares, principal amount (and accrued interest, if any), or other units
sold, (iii) the date of sale and settlement, (iv) the sale price per unit,
(v) the total amount payable upon such sale, and (vi) the person to whom
such Securities are to be delivered. Upon receipt of the total
amount payable to the Funds 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.
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|
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. In any
such case, the Funds shall bear the risk that final payment for such
Securities may not be made or that such Securities may be returned or
otherwise held or disposed of by or through the person to whom they were
delivered, and the Custodian shall have no liability for any for the
foregoing.
|
|
4.5
|
Payment
for Securities Sold. In its sole discretion
and from time to time, the Custodian may credit the Fund Custody Account,
prior to actual receipt of final payment thereof, with (i) proceeds from
the sale of Securities which it has been instructed to deliver against
payment, (ii) proceeds from the redemption of Securities or other assets
of the Funds, and (iii) income from cash, Securities or other assets of
the Funds. Any such credit shall be conditional upon actual
receipt by Custodian of final payment and may be reversed if final payment
is not actually received in full. The Custodian may, in its
sole discretion and from time to time, permit a Fund to use funds so
credited to the respective 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 such 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 a Fund to facilitate the settlement of a
Fund’s transactions in the respective Fund Custody Account. Any
such advance shall be repayable immediately upon demand made by
Custodian.
|
11
ARTICLE V
REPURCHASE OF
FUND
SHARES
|
5.1
|
Transfer
of Funds. From such funds as
may be available for the purpose in a Fund Custody Account, and upon
receipt of Proper Instructions specifying that the funds are required to
repurchase Shares of a Fund in open market purchases or pursuant to a
tender offer, the Custodian shall wire each amount specified in such
Proper Instructions to or through such bank or broker-dealer as
such Fund may
designate.
|
|
5.2
|
No
Duty Regarding Paying Banks. Once the Custodian
has wired amounts to a bank or broker-dealer pursuant to Section 5.1
above, the Custodian shall not be under any obligation to effect any
further payment or distribution by such bank or
broker-dealer.
|
ARTICLE VI
SEGREGATED ACCOUNTS
Upon receipt of Proper Instructions, the
Custodian shall establish and maintain a segregated account or accounts for and
on behalf of the Funds, into which account or accounts may be transferred cash
and/or Securities, including Securities maintained in a Depository
Account:
|
(a)
|
in accordance with the provisions
of any agreement among the Funds, the Custodian and a
broker-dealer registered under the 1934 Act and a member of FINRA (or any
futures commission merchant registered under the Commodity Exchange Act),
relating to compliance with the rules of the Options Clearing Corporation
and of any registered national securities exchange (or the Commodity
Futures Trading Commission or any registered contract market), or of any
similar organization or organizations, regarding escrow or other
arrangements in connection with transactions by the
Funds;
|
|
(b)
|
for purposes of segregating cash
or Securities in connection with securities options purchased or written
by the Funds or in connection with financial futures contracts (or options
thereon) purchased or sold by the
Funds;
|
|
(c)
|
which constitute collateral for
loans of Securities made by the
Funds;
|
|
(d)
|
for purposes of compliance by the
Funds with requirements under the 1940 Act for the maintenance of
segregated accounts by registered investment companies in connection with
reverse repurchase agreements and when-issued, delayed delivery and firm
commitment transactions; and
|
|
(e)
|
for other proper corporate
purposes, but only upon receipt of, in addition to Proper Instructions, a
certified copy of a resolution of the Board, certified by an Officer,
setting forth the purpose or purposes of such segregated account and
declaring such purposes to be proper corporate
purposes.
|
Each segregated account established
under this Article VI shall be established and maintained for a Fund
only. All Proper Instructions relating to a segregated account shall
specify such Fund.
ARTICLE VII
COMPENSATION OF
CUSTODIAN
|
7.1
|
Compensation. The Custodian shall
be compensated for providing the services set forth in this Agreement in
accordance with the fee schedule set forth on Exhibit
C hereto (as amended
from time to time). The Custodian shall also be compensated for
such out-of-pocket expenses (e.g., telecommunication charges, postage and
delivery charges, and reproduction charges) as are reasonably incurred by
the Custodian in performing its duties hereunder. The
Funds shall pay all such fees and
reimbursable expenses within 30 calendar days following receipt of the
billing notice, except for any fee or expense subject to a good faith
dispute. The Funds shall notify the Custodian in
writing within 30 calendar days following receipt of each invoice if the
Funds are disputing any amounts in good
faith. The Funds shall pay such disputed amounts
within 10 calendar days of the day on which the parties agree to the
amount to be paid. With the exception of any fee or expense the
Funds are disputing in good faith as
set forth above, unpaid invoices shall accrue a finance charge of 1½% per
month after the due date. Notwithstanding anything to the contrary,
amounts owed by the Funds to the Custodian shall only be
paid out of the assets and property of the particular Funds
involved.
|
12
ARTICLE VIII
REPRESENTATIONS AND
WARRANTIES
|
8.1
|
Representations
and Warranties of the Funds. Each Fund hereby represents and warrants to
the Custodian, which representations and warranties shall be deemed to be
continuing throughout the term of this Agreement,
that:
|
|
(a)
|
It is duly organized and existing
under the laws of the jurisdiction of its organization, with full power to
carry on its business as now conducted, to enter into this Agreement and
to perform its obligations
hereunder;
|
|
(b)
|
This Agreement has been duly
authorized, executed and delivered by each Fund in accordance with all requisite
action and constitutes a valid and legally binding obligation of
such Fund, enforceable in accordance with
its terms, subject to bankruptcy, insolvency, reorganization, moratorium
and other laws of general application affecting the rights and remedies of
creditors and secured parties;
and
|
|
(c)
|
It is conducting its business in
compliance in all material respects with all applicable laws and
regulations, both state and federal, and has obtained all regulatory
approvals necessary to carry on its business as now conducted; there is no
statute, rule, regulation, order or judgment binding on it and no
provision of its charter, bylaws or any contract binding it or affecting
its property which would prohibit its execution or performance of this
Agreement.
|
|
8.2
|
Representations
and Warranties of the Custodian. The Custodian hereby
represents and warrants to the Funds, which representations and
warranties shall be deemed to be continuing throughout the term of this
Agreement, that:
|
|
(a)
|
It is duly organized and existing
under the laws of the jurisdiction of its organization, with full power to
carry on its business as now conducted, to enter into this Agreement and
to perform its obligations
hereunder;
|
|
(b)
|
This Agreement has been duly
authorized, executed and delivered by the Custodian in accordance with all
requisite action and constitutes a valid and legally binding obligation of
the Custodian, enforceable in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, moratorium and other laws of
general application affecting the rights and remedies of creditors and
secured parties; and
|
13
|
(c)
|
It is conducting its business in
compliance in all material respects with all applicable laws and
regulations, both state and federal, and has obtained all regulatory
approvals necessary to carry on its business as now conducted; there is no
statute, rule, regulation, order or judgment binding on it and no
provision of its charter, bylaws or any contract binding it or affecting
its property which would prohibit its execution or performance of this
Agreement.
|
ARTICLE IX
CONCERNING THE
CUSTODIAN
|
9.1
|
Standard
of Care. The Custodian shall
exercise reasonable care in the performance of its duties under this
Agreement. The Custodian shall not be liable for any error of
judgment or mistake of law or for any loss suffered by a Fund in connection with its duties
under this Agreement, except a loss arising out of or relating to the
Custodian’s (or a Sub-Custodian’s) refusal or failure to comply with the
terms of this Agreement (or any sub-custody agreement) or from its (or a
Sub-Custodian’s) bad faith, negligence or willful misconduct in the
performance of its duties under this Agreement (or any sub-custody
agreement). The Custodian shall be entitled to rely on and may
act upon advice of counsel on all matters, and shall be without liability
for any action reasonably taken or omitted pursuant to such
advice. The Custodian shall promptly notify a Fund of any action taken or omitted by
the Custodian pursuant to advice of
counsel.
|
|
9.2
|
Actual
Collection Required. The Custodian shall
not be liable for, or considered to be the custodian of, any cash
belonging to the Funds or any money represented by a check, draft or other
instrument for the payment of money, until the Custodian or its agents
actually receive such cash or collect on such
instrument.
|
|
9.3
|
No
Responsibility for Title, etc. So long as and to the
extent that it is in the exercise of 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.
|
|
9.4
|
Limitation
on Duty to Collect. Custodian shall not
be required to enforce collection, by legal means or otherwise, of any
money or property due and payable with respect to Securities held for the
Funds if such Securities are in default or payment is not made after due
demand or presentation.
|
|
9.5
|
Reliance
Upon Documents and Instructions. The Custodian shall
be entitled to rely upon any certificate, notice or other instrument in
writing received by it and reasonably believed by it to be
genuine. The Custodian shall be entitled to rely upon any
Written Instructions actually received by it pursuant to this
Agreement.
|
|
9.6
|
Cooperation. The Custodian shall
cooperate with and supply necessary information to the entity or entities
appointed by the Funds to keep the books of account of
the Funds and/or compute the value of the
assets of the Funds. The Custodian shall
take all such reasonable actions as the Funds may from time to time request to
enable the Funds to obtain, from year to year,
favorable opinions from the Funds’ independent accountants with
respect to the Custodian's activities hereunder in connection with (i) the
preparation of the Funds’ statements and reports on Form N-2 and Form
N-SAR and any other
statements and reports required by the SEC, and (ii) the fulfillment by
the Funds of any other requirements of the
SEC.
|
14
ARTICLE X
INDEMNIFICATION
|
10.1
|
Indemnification
by Funds. The Funds shall indemnify and hold harmless
the Custodian, any Sub-Custodian and any nominee thereof (each, an
“Indemnified Party” and collectively, the “Indemnified Parties”) from and
against any and all claims, demands, losses, expenses and liabilities of
any and every nature (including reasonable attorneys' fees) that an
Indemnified Party may sustain or incur or that may be asserted against an
Indemnified Party by any person arising directly or indirectly (i) from
the fact that Securities are registered in the name of any such nominee,
(ii) from any action taken or omitted to be taken by the Custodian or such
Sub-Custodian (a) at the request or direction of or in reliance on the
advice of the Funds, or (b) upon Proper Instructions,
or (iii) from the performance of its obligations under this Agreement or
any sub-custody agreement, provided that neither the Custodian nor any
such Sub-Custodian shall be indemnified and held harmless from and against
any such claim, demand, loss, expense or liability arising out of or
relating to its refusal or failure to comply with the terms of this
Agreement (or any sub-custody agreement), or from its bad faith,
negligence or willful misconduct in the performance of its duties under
this Agreement (or any sub-custody agreement). This indemnity
shall be a continuing obligation of the Funds, their successors and assigns,
notwithstanding the termination of this Agreement. As used in
this paragraph, the terms “Custodian” and “Sub-Custodian” shall include
their respective directors, officers and
employees.
|
|
10.2
|
Indemnification
by Custodian. The Custodian shall
indemnify and hold harmless the Funds from and against any and all
claims, demands, losses, expenses, and liabilities of any and every nature
(including reasonable attorneys’ fees) that the Funds may sustain or incur or that may
be asserted against the Funds by any person arising out of any
action taken or omitted to be taken by an Indemnified Party as a result of
the Indemnified Party’s refusal or failure to comply with the terms of
this Agreement (or any sub-custody agreement), or from its bad faith,
negligence or willful misconduct in the performance of its duties under
this Agreement (or any sub-custody agreement). This indemnity
shall be a continuing obligation of the Custodian, its successors and
assigns, notwithstanding the termination of this Agreement. As
used in this paragraph, the term “Funds” shall include the Funds’ trustees, officers and
employees.
|
|
10.3
|
Security. If the Custodian
advances cash or Securities to a Fund for any purpose, either at
such Fund's request or as otherwise
contemplated in this Agreement, or in the event that the Custodian or its
nominee incurs, in connection with its performance under this Agreement,
any claim, demand, loss, expense or liability (including reasonable
attorneys' fees) (except such as may arise from its or its nominee's bad
faith, negligence or willful misconduct), then, in any such event, any
property at any time held for the account of a Fund shall be security
therefor, and should such Fund fail promptly to repay or indemnify the
Custodian, the Custodian shall be entitled to utilize available cash of
such Fund and to dispose of other assets of such Fund to the extent
necessary to obtain reimbursement or
indemnification.
|
|
10.4
|
Miscellaneous.
|
|
(a)
|
Neither party to this Agreement
shall be liable to the other party for consequential, special or punitive
damages under any provision of this
Agreement.
|
|
(b)
|
The indemnity provisions of this
Article shall indefinitely survive the termination and/or assignment of
this Agreement.
|
15
|
(c)
|
In order that the indemnification
provisions contained in this Article shall apply, it is understood that if
in any case the indemnitor may be asked to indemnify or hold the
indemnitee harmless, the indemnitor shall be fully and promptly advised of
all pertinent facts concerning the situation in question, and it is
further understood that the indemnitee will use all reasonable care to
notify the indemnitor promptly concerning any situation that presents or
appears likely to present the probability of a claim for indemnification.
The indemnitor shall have the option to defend the indemnitee against any
claim that may be the subject of this indemnification. In the
event that the indemnitor so elects, it will so notify the indemnitee and
thereupon the indemnitor shall take over complete defense of the claim,
and the indemnitee shall in such situation initiate no further legal or
other expenses for which it shall seek indemnification under this
section. The indemnitee shall in no case confess any claim or
make any compromise in any case in which the indemnitor will be asked to
indemnify the indemnitee except with the indemnitor’s prior written
consent.
|
ARTICLE XI
FORCE MAJEURE
Neither the Custodian nor the
Funds shall be liable for any failure or
delay in performance of its obligations under this Agreement arising out of or
caused, directly or indirectly, by circumstances beyond its reasonable control,
including, without limitation, acts of God; earthquakes; fires; floods; wars;
civil or military disturbances; acts of terrorism; sabotage; strikes; epidemics;
riots; power failures; computer failure and any such circumstances beyond its
reasonable control as may cause interruption, loss or malfunction of utility,
transportation, computer (hardware or software) or telephone communication
service; accidents; labor disputes; acts of civil or military authority;
governmental actions; or inability to obtain labor, material, equipment or
transportation; provided, however, that in the event of a failure or delay, the
Custodian (i) shall not discriminate against the 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 XII
PROPRIETARY AND CONFIDENTIAL
INFORMATION
The Custodian agrees on behalf of itself
and its directors, officers, and employees to treat confidentially and as
proprietary information of the Funds, all records and other information
relative to the Funds and prior, present, or potential
shareholders of the Funds (and clients of said shareholders), and
not to use such records and information for any purpose other than the
performance of its responsibilities and duties hereunder, except (i) after prior
notification to and approval in writing by the Funds, which approval shall not be
unreasonably withheld and may not be withheld where the Custodian may be exposed
to civil or criminal contempt proceedings for failure to comply, (ii) when
requested to divulge such information by duly constituted authorities, or (iii)
when so requested by the Funds. Records and other
information which have become known to the public through no wrongful act of the
Custodian or any of its employees, agents or representatives, and information
that was already in the possession of the Custodian prior to receipt thereof
from the Funds or their agent, shall not be subject to
this paragraph.
Further, the Funds will adhere to the privacy policies
adopted by the Funds pursuant to Title V of the
Xxxxx-Xxxxx-Xxxxxx Act, as may be modified from time to time. In this
regard, the Custodian shall have in place and maintain physical, electronic and
procedural safeguards reasonably designed to protect the security,
confidentiality and integrity of, and to prevent unauthorized access to or use
of, records and information relating to the Funds and their
shareholders.
16
ARTICLE XIII
EFFECTIVE PERIOD;
TERMINATION
|
13.1
|
Effective
Period. This Agreement shall
become effective as of the date first written above and will continue in
effect for a period of two (2)
years.
|
|
13.2
|
Termination. Subsequent to the
initial three-year term, this Agreement may be terminated by either party
upon giving 90 days prior written notice to the other party or such
shorter period as is mutually agreed upon by the
parties. Notwithstanding the foregoing, this Agreement may be
terminated by any party upon the breach of the other party of any material
term of this Agreement if such breach is not cured within 15 days of
notice of such breach to the breaching party. In addition, the
Funds may, at any time, immediately
terminate this Agreement in the event of the appointment of a conservator
or receiver for the Custodian by regulatory authorities or upon the
happening of a like event at the direction of an appropriate regulatory
agency or court of competent
jurisdiction.
|
|
13.3
|
Early
Termination. In the absence of any
material breach of this agreement, should the Funds elect to terminate this agreement
prior to the end of the term, the Funds agree to pay the following
fees:
|
|
(i)
|
All monthly fees through the life
of the contract, including the rebate of any negotiated
discounts;
|
|
(ii)
|
All fees associated with
converting services to successor service provider;
|
|
(iii)
|
All fees associated with any
record retention and/or tax reporting obligations that may not be
eliminated due to the conversion to a successor service
provider;
|
|
(iv)
|
All out-of-pocket costs associated
with (i)-(iii) above.
|
|
13.4
|
Appointment
of Successor Custodian. If a successor
custodian shall have been appointed by the Board, the Custodian shall,
upon receipt of a notice of acceptance by the successor custodian, on such
specified date of termination (i) deliver directly to the successor
custodian all Securities (other than Securities held in a Book-Entry
System or Securities Depository) and cash then owned by the Funds and held
by the Custodian as custodian, and (ii) transfer any Securities held in a
Book-Entry System or Securities Depository to an account of or for the
benefit of the Funds at the successor custodian, provided that the
Funds shall have paid to the Custodian
all fees, expenses and other amounts to the payment or reimbursement of
which it shall then be entitled. In addition, the Custodian
shall, at the expense of the Funds, transfer to such successor all
relevant books, records, correspondence, and other data established or
maintained by the Custodian under this Agreement in a form reasonably
acceptable to the Funds (if such form differs from the
form in which the Custodian has maintained the same, the Funds shall pay any expenses associated
with transferring the data to such form), and will cooperate in the
transfer of such duties and responsibilities, including provision for
assistance from the Custodian’s personnel in the establishment of books,
records, and other data by such successor. Upon such delivery
and transfer, the Custodian shall be relieved of all obligations under
this Agreement.
|
|
13.5
|
Failure
to Appoint Successor Custodian. If a successor
custodian is not designated by the Funds on or before the date of
termination of this Agreement, then the Custodian shall have the right to
deliver to a bank or trust company of its own selection, which bank or
trust company (i) is a “bank” as defined in the 1940 Act, and (ii) has
aggregate capital, surplus and undivided profits as shown on its most
recent published report of not less than $25 million, all Securities, cash
and other property held by Custodian under this Agreement and to transfer
to an account of or for the 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 this Agreement and the
Custodian shall be relieved of all obligations under this
Agreement. In addition, under these circumstances, all books,
records and other data of the Funds shall be returned to the
Funds.
|
17
ARTICLE XIV
MISCELLANEOUS
|
14.1
|
Compliance
with Laws. Each Fund has and retains primary
responsibility for all compliance matters relating to such Fund, including
but not limited to compliance with the 1940 Act, the Internal Revenue Code
of 1986, the Xxxxxxxx-Xxxxx Act of 2002, the USA Patriot Act of 2002 and
the policies and limitations of such Fund relating to its portfolio
investments as set forth in its Prospectus and statement of additional
information. The Custodian’s services hereunder shall not
relieve a
Fund of its responsibilities for
assuring such compliance or the Board’s oversight responsibility with
respect thereto.
|
|
14.2
|
Class
Actions. The Custodian shall use its best
efforts to identify
and file claims for the Funds involving any class action
litigation that
impacts any security the Funds may have held during the class
period. The Funds agree that the Custodian may file such
claims on their behalf and understands that
they may be waiving and/or releasing
certain rights to make claims or otherwise pursue class action defendants
who settle their claims. Further, the Funds acknowledge that there is no guarantee these
claims will result in any payment or partial payment of potential class
action proceeds and that the timing of such payment, if any, is
uncertain. However, the Funds may instruct the Custodian to
distribute class action notices and other relevant documentation to the
Funds or its designee
and, if they so
elect, will relieve
the Custodian from any and all liability and responsibility for filing
class action claims
on behalf of the Funds. In the event the
Funds are closed, the
Custodian shall only file the class action claims upon written instructions by an
Authorized
Persons of the closed
Funds. Any
expenses associated with such filing will be assessed against the proceeds
received of any class action
settlement
|
|
14.3
|
Amendment. This Agreement may
not be amended or modified in any manner except by written agreement
executed by the Custodian and the Funds, and authorized or approved by
the Board.
|
|
14.4
|
Assignment. This Agreement shall
extend to and be binding upon the parties hereto and their respective
successors and assigns; provided, however, that this Agreement shall not
be assignable by the Funds without the written consent of
the Custodian, or by the Custodian without the written consent of the
Funds accompanied by the authorization
or approval of the Board.
|
|
14.5
|
Governing
Law. This
Agreement shall be governed by and construed in accordance with the laws
of the State of Ohio, without regard to conflicts of law
principles. To the extent that the applicable laws of the State
of Ohio, or any of the provisions herein, conflict with the applicable
provisions of the 1940 Act, the latter shall control, and nothing herein
shall be construed in a manner inconsistent with the 1940 Act or any rule
or order of the SEC
thereunder.
|
18
|
14.6
|
No
Agency Relationship. Nothing herein
contained shall be deemed to authorize or empower either party to act as
agent for the other party to this Agreement, or to conduct business in the
name, or for the account, of the other party to this
Agreement.
|
|
14.7
|
Services
Not Exclusive. Nothing in this
Agreement shall limit or restrict the Custodian from providing services to
other parties that are similar or identical to some or all of the services
provided hereunder.
|
|
14.8
|
Invalidity. Any provision of this
Agreement which may be determined by competent authority to be prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. In such
case, the parties shall in good faith modify or substitute such provision
consistent with the original intent of the
parties.
|
|
14.9
|
Notices. Any notice required
or permitted to be given by either party to the other shall be in writing
and shall be deemed to have been given on the date delivered personally or
by courier service, or three days after sent by registered or certified
mail, postage prepaid, return receipt requested, or on the date sent and
confirmed received by facsimile transmission to the other party’s address
set forth below:
|
Notice to the Custodian shall be sent
to:
U.S. Bank National
Association
000 Xxxxxx Xxxxxx, X.X.
XX-XX-X0XX
Xxxxxxxxxx,
Xxxx 00000
Attention: Mutual Fund
Custody Services
Facsimile: (000) 000-0000
and notice to the Funds shall be sent to:
Hatteras 1099 Advantage
Fund
0000 Xxxxxxxxx Xxxxxx Xxxxx, Xxxxx
000
Xxxxxxx, XX, 00000
Attention: J. Xxxxxxx
Xxxxxx
Facsimile: (000)
000-0000
14.10
|
Multiple
Originals. This Agreement may be
executed on two or more counterparts, each of which when so executed shall
be deemed an original, but such counterparts shall together constitute but
one and the same instrument.
|
14.11
|
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.
|
14.12
|
References
to Custodian. The Funds 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 Funds and such
other printed matter as merely identifies Custodian as custodian for the
Funds. The Funds 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.
|
[SIGNATURE PAGE
FOLLOWS]
19
IN WITNESS WHEREOF, the parties hereto
have caused this Agreement to be executed by a duly authorized officer on one or
more counterparts as of the date first above written.
HATTERAS 1099
ADVANTAGE
|
U.S. BANK NATIONAL
ASSOCIATION
|
|
INSTITUTIONAL
FUND
|
||
By: /s/ R. Xxxxx
Xxxxx
|
By: /s/ Xxx X.
Xxxxxxx
|
|
Name: R. Xxxxx
Xxxxx
|
Name: Xxx X.
Xxxxxxx
|
|
Title: CFO
|
Title: Executive Vice
President
|
|
HATTERAS 1099
ADVANTAGE
|
||
FUND
|
||
By: /s/ R. Xxxxx
Xxxxx
|
||
Name: R. Xxxxx
Xxxxx
|
||
Title: CFO
|
||
20
EXHIBIT
A
AUTHORIZED PERSONS
Set forth below are the names and
specimen signatures of the persons authorized by the Funds to administer the Fund Custody
Accounts.
Authorized
Persons
|
Specimen
Signatures
|
|
President: Xxxxx X.
Xxxxxxx
|
||
Secretary: J. Xxxxxxx
Xxxxxx
|
||
Treasurer: R. Xxxxx
Xxxxx
|
||
Vice
President:
|
||
Other: Marc. X.
Xxxxxxx
|
||
Xxxxxxx X.
Xxxxxxxx
|
||
Xxxx X.
Xxxx
|
||
Xxxxx X.
Xxxxxxxxx
|
||
21
EXHIBIT
B
U.S. Bank Institutional Custody
Services
Standards of Service
Guide
U.S. Bank, N.A. (“USBank”) is committed
to providing superior quality service to all customers and their agents at all
times. We have compiled this guide as a tool for our clients to
determine our standards for the processing of security settlements, payment
collection, and capital change transactions. Deadlines recited in
this guide represent the times required for USBank to guarantee
processing. Failure to meet these deadlines will result in settlement
at our client's risk. In all cases, USBank will make every effort to
complete all processing on a timely basis.
USBank is a direct participant of the
Depository Trust Company, a direct member of the Federal Reserve Bank of
Cleveland, and utilizes the Bank of New York as its agent for ineligible and
foreign securities.
For corporate reorganizations, USBank
utilizes SEI's Reorg Source, Financial Information, Inc., XCITEK, DTC Important
Notices, Capital Changes Daily (CCH) and the Wall Street
Journal.
For bond calls and mandatory puts,
USBank utilizes SEI's Bond Source, Xxxxx Information Systems, Standard &
Poor's Corporation, XCITEK, and DTC Important Notices. USBank will
not notify clients of optional put opportunities.
Any securities delivered free to USBank
or its agents must be received three (3) business days prior to any payment or
settlement in order for the USBank standards of service to
apply.
Should you have any
questions regarding the information contained in this guide, please feel
free to contact your account representative.
The information contained in this
Standards of Service Guide is subject to change. Should any changes
be made USBank will provide you with an updated copy of its Standards of Service
Guide.
USBank Security Settlement
Standards
Transaction
Type
|
Instructions
Deadlines*
|
Delivery
Instructions
|
DTC
|
1:30 P.M. on Settlement
Date
|
DTC Participant
#0000
Xxxxx Xxxx XX
00000
Institutional
#________________
For Account
#____________
|
Federal Reserve Book
Entry
|
12:30 P.M. on Settlement
Date
|
Federal Reserve Bank of
Cleveland
for Firstar Bank,
N.A. ABA# 000000000
XXXXX/1050
For Account
#_____________
|
Federal Reserve Book Entry
(Repurchase Agreement Collateral Only)
|
1:00 P.M. on Settlement
Date
|
Federal Reserve Bank of
Cleveland
for Firstar Bank,
N.A. ABA# 000000000
XXXXX/1040
For Account
#_____________
|
PTC Securities
(GNMA Book
Entry)
|
12:00 P.M. on Settlement
Date
|
PTC For Account
BYORK
Firstar Bank /
117612
|
Physical
Securities
|
9:30 A.M. EST on Settlement
Date
(for Deliveries, by 4:00 P.M. on
Settlement Date minus 1)
|
Bank of New
York
One Xxxx Xxxxxx- 0xx Xxxxx – Window
A
Xxx Xxxx,
XX 00000
For account of Firstar Bank / Cust
#117612
Attn: Xxxxxx
Xxxxxx
|
CEDEL/EURO-CLEAR
|
11:00 A.M.
on Settlement Date minus 2
|
Cedel a/c
55021
FFC: a/c
387000
Firstar Bank /Global
Omnibus
Euroclear a/c
97816
FFC: a/c
387000
Firstar Bank/Global
Omnibus
|
Cash Wire
Transfer
|
3:00 P.M.
|
Firstar Bank, X.X. Xxxxx/Trust
ABA# 000000000
Credit Account
#112950027
Account of Firstar Trust
Services
Further Credit to
___________
Account #
_______________
|
* All times listed are
Eastern Standard Time.
USBank Payment
Standards
Security
Type
|
Income
|
Principal
|
Equities
|
Payable
Date
|
|
Municipal
Bonds*
|
Payable
Date
|
Payable
Date
|
Corporate
Bonds*
|
Payable
Date
|
Payable
Date
|
Federal Reserve Bank Book
Entry*
|
Payable
Date
|
Payable
Date
|
PTC GNMA's
(P&I)
|
Payable Date +
1
|
Payable Date +
1
|
CMOs *
|
||
DTC
|
Payable Date +
1
|
Payable Date +
1
|
Bankers
Trust
|
Payable Date +
1
|
Payable Date +
1
|
SBA Loan
Certificates
|
When
Received
|
When
Received
|
Unit Investment Trust
Certificates*
|
Payable
Date
|
Payable
Date
|
Certificates of
Deposit*
|
Payable Date +
1
|
Payable Date +
1
|
Limited
Partnerships
|
When
Received
|
When
Received
|
Foreign
Securities
|
When
Received
|
When
Received
|
*Variable Rate
Securities
|
||
Federal
Reserve Bank Book Entry
|
Payable
Date
|
Payable
Date
|
DTC
|
Payable Date +
1
|
Payable Date +
1
|
Bankers
Trust
|
Payable Date +
1
|
Payable Date +
1
|
|
NOTE:
|
If a payable date falls on a
weekend or bank holiday, payment will be made on the immediately following
business day.
|
USBank Corporate Reorganization
Standards
Type of
Action
|
Notification to
Client
|
Deadline for Client
Instructions
to USBank
|
Transaction
Posting
|
|
Rights,
Warrants,
and Optional
Mergers
|
Later of 10 business days prior to
expiration or receipt of notice
|
5 business days prior to
expiration
|
Upon
receipt
|
|
Mandatory Puts
with
Option to
Retain
|
Later of 10 business days prior to
expiration or receipt of notice
|
5 business days prior to
expiration
|
Upon
receipt
|
|
Class
Actions
|
10 business days prior to
expiration date
|
5 business days prior to
expiration
|
Upon
receipt
|
|
Voluntary
Tenders,
Exchanges,
and
Conversions
|
Later of 10 business days prior to
expiration or receipt of notice
|
5 business days prior to
expiration
|
Upon
receipt
|
|
Mandatory Puts, Defaults,
Liquidations, Bankruptcies, Stock Splits, Mandatory
Exchanges
|
At posting of funds or securities
received
|
None
|
Upon
receipt
|
|
Full and Partial
Calls
|
Later of 10 business days prior to
expiration or receipt of notice
|
None
|
Upon
receipt
|
NOTE: Fractional shares/par
amounts resulting from any of the above will be sold.
EXHIBIT
C
Fee Schedule