CUSTODIAN SERVICES AGREEMENT
THIS CUSTODIAN SERVICES AGREEMENT is entered into as of FEBRUARY 5, 2007 by
and between SEI PRIVATE TRUST COMPANY, a savings association supervised by the
Office of Thrift Supervision ("SEI Trust") and OLD MUTUAL 2100 ABSOLUTE RETURN
INSTITUTIONAL FUND, L.L.C., a Delaware limited liability company (the "Fund").
W I T N E S S E T H:
WHEREAS, the Fund is registered as a closed-end, non-diversified management
investment company under the Investment Company Act of 1940, as amended (the
"1940 Act"); and
WHEREAS, the Fund has entered into an Administration Agreement with SEI
Investments Global Funds Services ("SEI Investments"), an affiliate of SEI
Trust, pursuant to which SEI Investments will provide certain administrative
services including procuring and supervising entities retained by the Fund to
provide custody services (the "Administration Agreement"); and
WHEREAS, the Administration Agreement provides that SEI Investments will
pay SEI Trust a fee for the custodian services provided herein by SEI Trust; and
WHEREAS, SEI Trust shall receive compensation for the services provided
herein from SEI Investments; and
WHEREAS, the Fund wishes to retain SEI Trust to provide custodian services,
and SEI Trust wishes to furnish custodian services, either directly or through
an affiliate or affiliates, as more fully described herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. DEFINITIONS
(a) 1933 ACT means the Securities Act of 1933, as amended.
(b) 1934 ACT means the Securities Exchange Act of 1934, as amended.
(c) AUTHORIZED PERSON means any officer of the Fund and any other person
authorized by the Fund to give Oral or Written Instructions on behalf
of the Fund. An Authorized Person's scope of authority may be limited
by
1 of 19
setting forth such limitation in a written document signed by both
parties hereto.
(d) BOOK-ENTRY SYSTEM means Federal Reserve Treasury book-entry system for
United States and federal agency securities, its successor or
successors, and its nominee or nominees and any book-entry system
maintained by an exchange registered with the SEC under the 1934 Act.
(e) CEA means the Commodities Exchange Act, as amended.
(f) CHANGE OF CONTROL means a change in ownership or control (not
including transactions between wholly-owned direct or indirect
subsidiaries of a common parent) of 25% or more of the beneficial
ownership of the shares of common stock or shares of beneficial
interest of an entity or its parent(s).
(g) ORAL INSTRUCTIONS mean oral instructions received by SEI Trust from an
Authorized Person or from a person reasonably believed by SEI Trust to
be an Authorized Person. SEI Trust may, in its sole discretion in each
separate instance, consider and rely upon instructions it receives
from an Authorized Person via electronic mail as Oral Instructions.
(h) SEI TRUST means SEI Private Trust Company.
(i) SEC means the Securities and Exchange Commission.
(j) SECURITIES LAWS mean the 1933 Act, the 1934 Act, the 1940 Act and the
CEA.
(k) SHARES mean the shares of limited liability company interest of any
series or class of the Fund.
(l) PROPERTY means:
(i) any and all securities and other investment items which the Fund
may from time to time deposit, or cause to be deposited, with SEI
Trust or which SEI Trust may from time to time hold for the Fund;
(ii) all income in respect of any of such securities or other
investment items;
(iii) all proceeds of the sale of any of such securities or investment
items; and
2 of 19
(iv) all proceeds of the sale of securities issued by the Fund, which
are received by SEI Trust from time to time, from or on behalf of
the Fund.
(m) WRITTEN INSTRUCTIONS mean (i) written instructions delivered by hand,
mail or facsimile sending device and signed by two Authorized Persons
and received by SEI Trust or (ii) trade instructions transmitted by
means of an electronic transaction reporting system which requires the
use of a password or other authorized identifier in order to gain
access. The instructions may be delivered electronically or by hand,
mail or facsimile sending device.
2. APPOINTMENT. The Fund hereby appoints SEI Trust to provide custodian
services to the Fund, and SEI Trust accepts such appointment and agrees to
furnish such services.
3. DELIVERY OF DOCUMENTS. The Fund has provided or, where applicable, will
provide SEI Trust with the following:
(a) at SEI Trust's request, certified or authenticated copies of the
resolutions of the Fund's Managers, approving the appointment of SEI
Trust or its affiliates to provide services;
(b) a copy of the Fund's most recent effective registration statement;
(c) a copy of the Fund's advisory and sub-advisory agreements;
(d) a copy of the distribution/underwriting agreements with respect to
each class of Shares;
(e) a copy of the Fund's administration agreement;
(f) copies of any distribution and/or member servicing plans and
agreements made in respect of the Fund or a class thereof; and
(g) certified or authenticated copies of any and all amendments or
supplements to the foregoing.
4. COMPLIANCE WITH LAWS.
SEI Trust undertakes to comply with material applicable requirements of the
Securities Laws and material laws, rules and regulations of governmental
authorities having jurisdiction with respect to the duties to be performed by
SEI Trust hereunder. Except as specifically set forth herein, SEI Trust assumes
no responsibility for compliance with such laws by the Fund or any other entity.
3 of 19
5. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, SEI Trust shall act only
upon Oral Instructions or Written Instructions.
(b) SEI Trust shall be entitled to rely upon any Oral Instruction or
Written Instruction it receives from an Authorized Person (or from a
person reasonably believed by SEI Trust to be an Authorized Person)
pursuant to this Agreement. SEI Trust may assume that any Oral
Instructions or Written Instructions received hereunder are not in any
way inconsistent with the provisions of organizational documents of
the Fund or of any vote, resolution or proceeding of the Fund's
Managers or of the Fund's members, unless and until SEI Trust receives
Written Instructions to the contrary.
(c) The Fund agrees to forward to SEI Trust Written Instructions
confirming Oral Instructions (except where such Oral Instructions are
given by SEI Trust or its affiliates) so that SEI Trust receives the
Written Instructions by the close of business on the same day that
such Oral Instructions are received by SEI Trust. The fact that such
confirming Written Instructions are not received by SEI Trust or
differ from the Oral Instructions shall in no way invalidate the
transactions or enforceability of the transactions authorized by the
Oral Instructions or SEI Trust's ability to rely upon such Oral
Instructions.
6. RIGHT TO RECEIVE ADVICE.
(a) ADVICE OF THE FUND. If SEI Trust is in doubt as to any action it
should or should not take, SEI Trust may request directions or advice,
including Oral Instructions or Written Instructions, from the Fund.
(b) ADVICE OF COUNSEL. If SEI Trust shall be in doubt as to any question
of law pertaining to any action it should or should not take, SEI
Trust may request advice from reputable counsel of its own choosing
(who may be counsel for the Fund, the Fund's investment adviser or SEI
Trust, at the option of SEI Trust), and such reasonable cost shall be
borne by the Fund.
(c) CONFLICTING ADVICE. In the event of a conflict between directions or
advice or Oral Instructions or Written Instructions SEI Trust receives
from the Fund, and the advice it receives from counsel, SEI Trust
shall be entitled to rely upon and follow the advice of counsel.
(d) PROTECTION OF SEI TRUST. SEI Trust shall be indemnified by the Fund
and without liability for any action SEI Trust reasonably takes or
does not take in reliance upon directions or advice or Oral
Instructions or Written
4 of 19
Instructions SEI Trust receives from or on behalf of the Fund or from
counsel to the Fund and which SEI Trust reasonably believes, in good
faith, to be consistent with those directions or advice or Oral
Instructions or Written Instructions. Nothing in this section shall be
construed so as to impose an obligation upon SEI Trust in the absence
of SEI Trust's gross negligence (i) to seek such directions or advice
or Oral Instructions or Written Instructions, or (ii) to act in
accordance with such directions or advice or Oral Instructions or
Written Instructions.
7. RECORDS; VISITS. The books and records pertaining to the Fund, which are in
the possession or under the control of SEI Trust shall be the property of the
Fund. Such books and records shall be prepared and maintained as required by the
1940 Act and other applicable securities laws, rules and regulations. The Fund
and Authorized Persons shall have access to such books and records at all times
during SEI Trust's normal business hours. Upon the reasonable request of the
Fund, copies of any such books and records shall be provided by SEI Trust to the
Fund or to an authorized representative of the Fund, at the Fund's expense.
8. CONFIDENTIALITY. Each party shall keep confidential any information
relating to the other party's business ("Confidential Information").
Confidential Information shall include (a) any data or information that is
competitively sensitive material, and not generally known to the public,
including, but not limited to, information about product plans, marketing
strategies, finances, operations, customer relationships, customer profiles,
customer lists, sales estimates, business plans, and internal performance
results relating to the past, present or future business activities of the Fund
or SEI Trust, their respective subsidiaries and affiliated companies and the
customers, clients and suppliers of any of them; (b) any scientific or technical
information, design, process, procedure, formula, or improvement that is
commercially valuable and secret in the sense that its confidentiality affords
the Fund or SEI Trust a competitive advantage over its competitors; (c) all
confidential or proprietary concepts, documentation, reports, data,
specifications, computer software, source code, object code, flow charts,
databases, inventions, know-how, and trade secrets, whether or not patentable or
copyrightable; and (d) anything designated as confidential. Notwithstanding the
foregoing, information shall not be subject to such confidentiality obligations
if it: (a) is already known to the receiving party at the first time it is
obtained; (b) is or becomes publicly known or available through no wrongful act
of the receiving party; (c) is rightfully received from a third party who, to
the best of the receiving party's knowledge, is not under a duty of
confidentiality; (d) is released by the protected party to a third party without
restriction; (e) is required to be disclosed by the receiving party pursuant to
a requirement of a court order, subpoena, governmental or regulatory agency or
law (provided the receiving party will provide the other party written notice of
such requirement, to the extent such notice is permitted); (f) is relevant to
the defense of any claim or cause of action asserted against the receiving
party; or (g) has been or is independently developed or obtained by the
receiving party.
5 of 19
The provisions of this Section 8 shall survive termination of this Agreement.
9. COOPERATION WITH ACCOUNTANTS. SEI Trust shall cooperate with the Fund's
independent public accountants and shall take all reasonable action to make any
requested information available to such accountants as reasonably requested by
the Fund.
10. SEI SYSTEM. SEI Trust shall retain title to and ownership of any and all
data bases, computer programs, screen formats, report formats, interactive
design techniques, derivative works, inventions, discoveries, patentable or
copyrightable matters, concepts, expertise, patents, copyrights, trade secrets,
and other related legal rights utilized by SEI Trust in connection with the
services provided by SEI Trust to the Fund. The provisions of this Section 10
shall survive termination of this Agreement.
11. DISASTER RECOVERY. SEI Trust shall enter into and shall maintain in effect
with appropriate parties one or more agreements making reasonable provisions for
emergency use of electronic data processing equipment to the extent appropriate
equipment is available. In the event of equipment failures, SEI Trust shall, at
no additional expense to the Fund, take reasonable steps to minimize service
interruptions. SEI Trust shall have no liability with respect to the loss of
data or service interruptions caused by equipment failure provided such loss or
interruption is not caused by SEI Trust's own willful misfeasance, bad faith,
gross negligence or reckless disregard of its duties or obligations under this
Agreement.
12. COMPENSATION. As compensation for the services rendered by SEI Trust under
this Agreement, SEI Trust shall receive a fee or fees as may be agreed to in
writing from time to time by the Fund and SEI Trust or an affiliate of SEI
Trust. The Fund shall also be responsible for and shall reimburse SEI Trust for
SEI Trust's reasonable costs and expenses incurred in connection with the
performance of its services under this Agreement. The Fund and SEI Trust
acknowledge and agree that the fees payable pursuant to this Section 12 shall be
paid by the Fund in accordance with the terms of the Administration Agreement, a
copy of which shall be provided to SEI Trust. The Fund acknowledges that SEI
Trust may receive float benefits in connection with maintaining certain accounts
required to provide services under this Agreement. The provisions of this
Section 12 shall survive termination of this Agreement.
13. INDEMNIFICATION. The Fund agrees to indemnify and hold harmless SEI Trust
and its affiliates, including their respective officers, directors, agents and
employees, from all taxes, charges, expenses, assessments, claims and
liabilities (including, without limitation, attorneys' fees and disbursements
and liabilities arising under the Securities Laws and any state and foreign
securities and blue sky laws) arising directly or indirectly from any action or
omission to act which SEI Trust takes in connection with the provision of
services to the Fund. Neither SEI Trust, nor any of its affiliates, shall be
indemnified or held harmless against any liability (or any expenses incident to
such liability) caused by SEI Trust's or its affiliates' own willful
misfeasance,
6 of 19
bad faith, gross negligence or reckless disregard in the performance of SEI
Trust's activities under this Agreement.
SEI Trust agrees to indemnify and hold harmless the Fund and its affiliates,
including their respective officers, directors, agents and employees, from all
taxes, charges, expenses, assessments, claims and liabilities (including,
without limitation, attorneys' fees and disbursements and liabilities under the
Securities Laws and any state and foreign securities and blue sky laws) arising
directly or indirectly from any action or omission to act which SEI Trust or its
affiliates take in connection with the provision of services to the Fund under
this Agreement, provided that such action or omission to act arises from SEI
Trust's or its affiliates' willful misfeasance, bad faith, gross negligence or
reckless disregard in the performance of the services provided under this
Agreement. Notwithstanding the foregoing, neither the Fund, nor any of its
affiliates, shall be indemnified or held harmless against any liability (or any
expenses incident to such liability) caused by the Fund's or its affiliates' own
willful misfeasance, bad faith, gross negligence or reckless disregard of its
obligations under this Agreement.
The provisions of this Section 13 shall survive termination of this Agreement.
14. LIMITATION OF LIABILITY.
(a) SEI Trust shall be liable only for any damages arising out of SEI
Trust's failure to perform its duties under this Agreement to the
extent such damages arise out of SEI Trust's willful misfeasance, bad
faith, gross negligence or reckless disregard of its duties under this
Agreement.
(b) Notwithstanding anything in this Agreement to the contrary, (i) SEI
Trust shall not be liable for losses, delays, failure, errors,
interruption or loss of data occurring directly or indirectly by
reason of circumstances beyond its reasonable control, including
without limitation acts of god; action or inaction of civil or
military authority; public enemy; war; terrorism; riot; fire; flood;
sabotage; epidemics; labor disputes; civil commotion; interruption,
loss or malfunction of utilities, transportation, computer or
communications capabilities; insurrection; elements of nature; or
non-performance by a third party; and (ii) SEI Trust shall not be
under any duty or obligation to inquire into and shall not be liable
for the validity or invalidity, authority or lack thereof, or
truthfulness or accuracy or lack thereof, of any instruction,
direction, notice, instrument or other information which SEI Trust
reasonably believes to be genuine.
(c) Notwithstanding anything in this Agreement to the contrary, (i)
neither SEI Trust nor its affiliates shall be liable for any
consequential, special or indirect losses or damages, whether or not
the likelihood of such losses or damages was known by SEI Trust or its
affiliates.
7 of 19
(d) No party may assert a cause of action against SEI Trust or any of its
affiliates of which such party knew or reasonably should have known to
have occurred more than 12 months immediately prior to the filing of
the suit (or, if applicable, commencement of arbitration proceedings)
alleging such cause of action.
(e) Each party shall have a duty to mitigate damages for which the other
party may become responsible.
The provisions of this Section 14 shall survive termination of this
Agreement.
15. THE SERVICES. SEI Trust shall perform the custodian services set forth in
SCHEDULE A hereto. SEI Trust may sub-contract with third parties to perform
certain of the services to be performed by SEI Trust hereunder; provided,
however, that SEI Trust shall remain principally responsible to the Fund for the
acts and omissions of such other entities. SEI Trust shall be under no duty to
take any action hereunder on behalf of the Fund except as specifically set forth
herein or as may be specifically agreed to by SEI Trust and the Fund in a
written amendment hereto. SEI Trust shall be obligated to exercise reasonable
care and diligence in the performance of its duties hereunder and to act in good
faith in performing services provided for under this Agreement. In meeting its
duties hereunder, SEI Trust shall have the general authority to do all acts
deemed in SEI Trust's good faith belief to be necessary and proper to perform
its obligations under this Agreement.
16. DURATION AND TERMINATION. This Agreement shall continue until terminated by
the Fund or SEI Trust on sixty (60) days' prior written notice to the other
party. In the event this Agreement is terminated (pending appointment of a
successor to SEI Trust or vote of the members of the Fund to dissolve or to
function without a custodian of its cash, securities or other property), SEI
Trust shall not deliver the Fund's cash, securities or other property to the
Fund . SEI Trust shall deliver such cash, securities or other property to a bank
or trust company of SEI Trust's choice and reasonably satisfactory to the Fund,
having an aggregate capital, surplus and undivided profits, as shown by its last
published report, of not less than twenty million dollars ($20,000,000), as a
custodian for the Fund to be held under terms similar to those of this
Agreement. SEI Trust shall not be required to make any delivery or payment of
assets upon termination until full payment shall have been made to SEI Trust of
all of its fees, compensation, costs and expenses (such expenses include,
without limitation, expenses associated with movement (or duplication) of
records and materials and conversion thereof to a successor service provider, or
to a bank or trust company pending appointment of such successor, and all
trailing expenses incurred by SEI Trust). SEI Trust shall have a security
interest in and shall have a right of setoff against the Property as security
for the payment of such fees, compensation, costs and expenses.
17. NOTICES. Notices shall be addressed (a) if to SEI Trust at Xxx Xxxxxxx
Xxxxxx Xxxxx, Xxxx, Xxxxxxxxxxxx 00000, Attention: General Counsel; (b) if to
the Fund at x/x
0 xx 00
XXXX XXXXXXXX, XXX, CHIEF FINANCIAL OFFICER, 0000 XXXXX XXXX LLC, 000
XXXXXXXXXXX XXX, X-000, XXX XXXXX, XX 00000; or (c) at such other address as
shall have been given by like notice to the sender of any such notice or other
communication by the other party. If notice is sent by confirming electronic,
hand or facsimile sending device, it shall be deemed to have been given
immediately. If notice is sent by first-class mail, it shall be deemed to have
been given five days after it has been mailed. If notice is sent by messenger,
it shall be deemed to have been given on the day it is delivered.
18. AMENDMENTS. This Agreement, or any term hereof, may be changed or waived
only by a written amendment, signed by the party against whom enforcement of
such change or waiver is sought.
19. DELEGATION; ASSIGNMENT. SEI Trust may assign its rights and delegate its
duties hereunder to any affiliate of SEI Investments Company provided that SEI
Trust gives the Fund 30 days' prior written notice of such assignment or
delegation.
20. COUNTERPARTS. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
21. FURTHER ACTIONS. Each party agrees to perform such further acts and execute
such further documents as are necessary to effectuate the purposes hereof.
22. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding between the parties and supersedes all prior agreements
and understandings relating to the subject matter hereof, provided
that the parties may embody in one or more separate documents their
agreement, if any, with respect to delegated duties.
(b) NO REPRESENTATIONS OR WARRANTIES. Except as expressly provided in this
Agreement, SEI Trust hereby disclaims all representations and
warranties, express or implied, made to the Fund or any other person,
including, without limitation, any warranties regarding quality,
suitability, merchantability, fitness for a particular purpose or
otherwise (irrespective of any course of dealing, custom or usage of
trade), of any services or any goods provided incidental to services
provided under this Agreement. SEI Trust disclaims any warranty of
title or non-infringement except as otherwise set forth in this
Agreement.
(c) NO CHANGES THAT MATERIALLY AFFECT OBLIGATIONS. Notwithstanding
anything in this Agreement to the contrary, the Fund agrees not to
make any modifications to its registration statement or adopt any
policies which would affect materially the obligations or
responsibilities of
9 of 19
SEI Trust hereunder without the prior written approval of SEI Trust,
which approval shall not be unreasonably withheld or delayed.
(d) CAPTIONS. The captions in this Agreement are included for convenience
of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect.
(e) GOVERNING LAW. This Agreement shall be deemed to be a contract made in
Pennsylvania and governed by the laws of the Commonwealth of
Pennsylvania, without regard to principles of conflicts of law.
(f) PARTIAL INVALIDITY. If any provision of this Agreement shall be held
or made invalid by a court decision, statute, rule or otherwise, the
remainder of this Agreement shall not be affected thereby.
(g) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
(h) FACSIMILE SIGNATURES. The facsimile signature of any party to this
Agreement shall constitute the valid and binding execution hereof by
such party.
(i) SURVIVAL. The following shall survive the termination of this
Agreement (a) those provisions of this Agreement that specifically
state that they survive termination; and (b) any other provisions
necessary to interpret the rights or obligations of the parties
hereunder and which by their nature are to survive termination of this
Agreement.
10 of 19
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the day and year first above written.
SEI PRIVATE TRUST COMPANY
By:
-------------------------
Title:
-------------------------
OLD MUTUAL 2100 ABSOLUTE RETURN INSTITUTIONAL FUND, L.L.C.
By:
-------------------------
Title:
-------------------------
11 of 19
SCHEDULE A
DESCRIPTION OF SERVICES.
SEI Trust shall provide the following list of services to the Fund:
1. DELIVERY OF THE PROPERTY. The Fund will deliver or arrange for delivery to
SEI Trust, all the Property owned by it, including cash received as a
result of the distribution of Shares, during the term of this Agreement.
SEI Trust will not be responsible for such property until actual receipt.
2. RECEIPTS AND DISBURSEMENT OF MONEY. SEI Trust, acting upon Written
Instructions, shall open and maintain separate accounts in the Fund's name
using all cash received from or for the account of the Fund, subject to the
terms of this Agreement.
SEI Trust shall make cash payments from or for the Accounts of the Fund
only for:
(a) purchases of securities in the name of the Fund, SEI Trust, SEI
Trust's nominee or a sub-custodian or nominee thereof as provided in
Section 9 and for which SEI Trust has received a copy of the broker's
or dealer's confirmation or payee's invoice, as appropriate;
(b) purchase or redemption of Shares of the Fund delivered to SEI Trust;
(c) payment of, subject to Written Instructions, interest, taxes,
administration, accounting, distribution, advisory, management fees or
similar expenses which are to be borne by the Fund;
(d) payment to, subject to receipt of Written Instructions, the Fund's
investor services agent, as agent for the members, of an amount equal
to the amount of dividends and distributions stated in the Written
Instructions to be distributed in cash by the investor services agent
to members, or, in lieu of paying the Fund's investor services agent,
SEI Trust may arrange for the direct payment of cash dividends and
distributions to members in accordance with procedures mutually agreed
upon from time to time by and among the Fund, SEI Trust and the Fund's
investor services agent.
(e) payments, upon receipt of Written Instructions, in connection with the
conversion, exchange or surrender of securities owned or subscribed to
by the Fund and held by or delivered to SEI Trust;
12 of 19
(f) payments made to a sub-custodian pursuant to provisions in sub-section
(c) of this Section; and
(g) other payments, upon Written Instructions.
SEI Trust is hereby authorized to endorse and collect all checks, drafts or
other orders for the payment of money received as custodian for the
Accounts.
3. RECEIPT OF SECURITIES; SUB-CUSTODIANS.
SEI Trust shall hold all securities received by it for the Accounts in a
separate account that physically segregates such securities from those of
any other persons, firms or corporations, except for securities held in a
Book-Entry System. All such securities shall be held or disposed of only
upon Written Instructions of the Fund pursuant to the terms of this
Agreement. SEI Trust shall have no power or authority to assign,
hypothecate, pledge or otherwise dispose of any such securities or
investment, except upon the express terms of this Agreement or upon Written
Instructions authorizing the transaction. In no case may any member of the
Fund's Managers, or any officer, employee or agent of the Fund withdraw any
securities.
At SEI Trust's own expense and for its own convenience, SEI Trust may enter
into sub-custodian agreements with other banks or trust companies to
perform duties described in this Section 3 with respect to domestic assets.
Such bank or trust company shall have an aggregate capital, surplus and
undivided profits, according to its last published report, of at least one
million dollars ($1,000,000), if it is a subsidiary or affiliate of SEI
Trust, or at least twenty million dollars ($20,000,000) if such bank or
trust company is not a subsidiary or affiliate of SEI Trust. In addition,
such bank or trust company must be qualified to act as custodian and agree
to comply with the relevant provisions of applicable rules and regulations.
Any such arrangement will not be entered into without prior written notice
to the Fund (or as otherwise provided in the 1940 Act).
In addition, SEI Trust may enter into arrangements with sub-custodians with
respect to services regarding foreign assets. Any such arrangement will be
entered into with prior written notice to the Fund (or as otherwise
provided in the 1940 Act).
4. TRANSACTIONS REQUIRING INSTRUCTIONS. Upon receipt of Oral Instructions or
Written Instructions and not otherwise, SEI Trust, directly or through the
use of the Book-Entry System, shall:
(a) deliver any securities held for the Fund against the receipt of
payment for the sale of such securities;
13 of 19
(b) execute and deliver to such persons as may be designated in such Oral
Instructions or Written Instructions, proxies, consents,
authorizations, and any other instruments whereby the authority of the
Fund as owner of any securities may be exercised;
(c) deliver any securities to the issuer thereof, or its agent, when such
securities are called, redeemed, retired or otherwise become payable
at the option of the holder; provided that, in any such case, the cash
or other consideration is to be delivered to SEI Trust;
(d) deliver any securities held for the Fund against receipt of other
securities or cash issued or paid in connection with the liquidation,
reorganization, refinancing, tender offer, merger, consolidation or
recapitalization of any corporation, or the exercise of any conversion
privilege;
(e) deliver any securities held for the Fund to any protective committee,
reorganization committee or other person in connection with the
reorganization, refinancing, merger, consolidation, recapitalization
or sale of assets of any corporation, and receive and hold under the
terms of this Agreement such certificates of deposit, interim receipts
or other instruments or documents as may be issued to it to evidence
such delivery;
(f) make such transfer or exchanges of the assets of the Fund and take
such other steps as shall be stated in said Oral Instructions or
Written Instructions to be for the purpose of effectuating a duly
authorized plan of liquidation, reorganization, merger, consolidation
or recapitalization of the Fund;
(g) release and deliver or exchange securities owned by the Fund in
connection with any conversion of such securities, pursuant to their
terms, into other securities;
(h) release and deliver securities owned by the Fund for the purpose of
redeeming in kind shares of the Fund upon delivery thereof to SEI
Trust; and
(i) release and deliver or exchange securities owned by the Fund for other
purposes.
SEI Trust must also receive a certified resolution describing the
nature of the corporate purpose and the name and address of the
person(s) to whom delivery shall be made when such action is pursuant
to Section 4(i).
5. USE OF BOOK-ENTRY SYSTEM. SEI Trust is authorized and instructed, on a
continuous basis, to deposit in the Book-Entry System all securities
belonging to
14 of 19
the Fund eligible for deposit therein and to utilize the Book-Entry System
to the extent possible in connection with settlements of purchases and
sales of securities by the Fund, and deliveries and returns of securities
loaned, subject to repurchase agreements or used as collateral in
connection with borrowings. SEI Trust shall continue to perform such duties
until it receives Written Instructions or Oral Instructions authorizing
contrary actions.
SEI Trust shall administer the Book-Entry System as follows:
(a) With respect to securities of the Fund which are maintained in the
Book-Entry System, the records of SEI Trust shall identify by
Book-Entry or otherwise those securities belonging to the Fund.
(b) Assets of the Fund deposited in the Book-Entry System will at all
times be segregated from any assets and cash controlled by SEI Trust
in other than a fiduciary or custodian capacity but may be commingled
with other assets held in such capacities.
SEI Trust will provide the Fund with such reports on its own system of
internal control as the Fund may reasonably request from time to time.
6. REGISTRATION OF SECURITIES. All Securities held for the Fund which are
issued or issuable only in bearer form, except such securities held in the
Book-Entry System, shall be held by SEI Trust in bearer form; all other
securities held for the Fund may be registered in the name of the Fund, SEI
Trust, the Book-Entry System, a sub-custodian, or any duly appointed
nominee of the Fund, SEI Trust, Book-Entry System or sub-custodian. The
Fund reserves the right to instruct SEI Trust as to the method of
registration and safekeeping of the securities of the Fund. The Fund agrees
to furnish to SEI Trust appropriate instruments to enable SEI Trust to hold
or deliver in proper form for transfer, or to register in the name of its
nominee or in the name of the Book-Entry System or in the name of another
appropriate entity, any securities which it may hold for the Accounts and
which may from time to time be registered in the name of the Fund.
7. VOTING AND OTHER ACTION. Neither SEI Trust nor its nominee shall vote any
of the securities held pursuant to this Agreement by or for the account of
the Fund, except in accordance with Written Instructions. SEI Trust,
directly or through the use of the Book-Entry System, shall execute in
blank and promptly deliver all notices, proxies and proxy soliciting
materials received by SEI Trust as custodian of the Property to the
registered holder of such securities. If the registered holder is not the
Fund, then Written Instructions or Oral Instructions must designate the
person who owns such securities.
15 of 19
8. TRANSACTIONS NOT REQUIRING INSTRUCTIONS. In the absence of contrary Written
Instructions, SEI Trust is authorized to take the following actions:
(a) COLLECTION OF INCOME AND OTHER PAYMENTS.
(i) collect and receive for the account of the Fund, all income,
dividends, distributions, coupons, option premiums, other
payments and similar items, included or to be included in the
Property, and, in addition, promptly advise the Fund of such
receipt and credit such income, as collected, to the Fund's
custodian account;
(ii) endorse and deposit for collection, in the name of the Fund,
checks, drafts, or other orders for the payment of money;
(iii) receive and hold for the account of the Fund all securities
received as a distribution on the Fund's securities as a result
of a stock dividend, share split-up or reorganization,
recapitalization, readjustment or other rearrangement or
distribution of rights or similar securities issued with respect
to any securities belonging to the Fund and held by SEI Trust
hereunder;
(iv) present for payment and collect the amount payable upon all
securities which may mature or be, on a mandatory basis, called,
redeemed, or retired, or otherwise become payable on the date
such securities become payable; and
(v) take any action which may be necessary and proper in connection
with the collection and receipt of such income and other payments
and the endorsement for collection of checks, drafts, and other
negotiable instruments.
(b) MISCELLANEOUS TRANSACTIONS.
(i) SEI Trust is authorized to deliver or cause to be delivered
Property against payment or other consideration or written
receipt therefor in the following cases:
o for examination by a broker or dealer selling for the
account of the Fund in accordance with street delivery
custom;
o for the exchange of interim receipts or temporary securities
for definitive securities; and
o for transfer of securities into the name of the Fund or SEI
Trust or a sub-custodian or a nominee of one of the
foregoing, or for
16 of 19
exchange of securities for a different number of bonds,
certificates, or other evidence, representing the same
aggregate face amount or number of units bearing the same
interest rate, maturity that, in any such case, the new
securities are to be delivered to SEI Trust.
(ii) unless and until SEI Trust receives Oral Instructions or Written
Instructions to the contrary, SEI Trust shall:
o pay all income items held by it which call for payment upon
presentation and hold the cash received by it upon such
payment for the account of the Fund;
o collect interest and cash dividends received, with notice to
the Fund, to the account of the Fund;
o hold for the account of the Fund all stock dividends, rights
and similar securities issued with respect to any securities
held by SEI Trust; and
o execute as agent on behalf of the Fund all necessary
ownership certificates required by the Internal Revenue Code
or the Income Tax Regulations of the United States Treasury
Department or under the laws of any state now or hereafter
in effect, inserting the Fund's name on such certificate as
the owner of the securities covered thereby, to the extent
it may lawfully do so.
9. PURCHASES OF SECURITIES. SEI Trust shall settle purchased securities upon
receipt of Oral Instructions or Written Instructions that specify:
(a) the name of the issuer and the title of the securities, including
CUSIP number if applicable;
(b) the number of shares or the principal amount purchased and accrued
interest, if any;
(c) the date of purchase and settlement;
(d) the purchase price per unit;
(e) the total amount payable upon such purchase;
(f) the name of the person from whom or the broker through whom the
purchase was made. SEI Trust shall upon receipt of securities
purchased by or for the Fund pay out of the moneys held for the
account of the Fund the total amount payable to the person from
whom or the broker through whom
17 of 19
the purchase was made, provided that the same conforms to the
total amount payable as set forth in such Oral Instructions or
Written Instructions.
10. SALES OF SECURITIES. SEI Trust shall settle sold securities upon receipt of
Oral Instructions or Written Instructions that specify:
(a) the name of the issuer and the title of the security, including CUSIP
number if applicable;
(b) the number of shares or principal amount sold, and accrued interest,
if any;
(c) the date of trade and settlement;
(d) the sale price per unit;
(e) the total amount payable to the Fund upon such sale;
(f) the name of the broker through whom or the person to whom the sale was
made;
(g) the location to which the security must be delivered and delivery
deadline, if any; and
SEI Trust shall deliver the securities upon receipt of the total amount
payable to the Fund upon such sale, provided that the total amount payable
is the same as was set forth in the Oral Instructions or Written
Instructions. Notwithstanding the other provisions thereof, SEI Trust 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.
11. REPORTS; PROXY MATERIALS.
(a) SEI Trust shall furnish to the Fund the following reports:
(i) such periodic and special reports as the Fund may reasonably
request;
(ii) a monthly statement summarizing all transactions and entries for
the account of the Fund, listing each portfolio security
belonging to the Fund with the adjusted average cost of each
issue and the market value at the end of such month and stating
the cash account of the Fund including disbursements;
(iii) the reports required to be furnished to the Fund pursuant to
Rule 17f-4 of the 1940 Act; and
18 of 19
(iv) such other information as may be agreed upon from time to time
between the Fund and SEI Trust.
(b) SEI Trust shall transmit promptly to the Fund any proxy statement,
proxy material, legal claim, class action, court notice, notice of a
call or conversion or similar communication received by it as
custodian of the Property. SEI Trust shall be under no other
obligation to inform the Fund as to such actions or events. For
clarification, upon termination of this Agreement SEI Trust shall have
no responsibility to transmit such material or to inform the Fund or
any other person of such actions or events.
12. CREDITING OF ACCOUNTS. If SEI Trust in its sole discretion credits an
Account with respect to (a) income, dividends, distributions, coupons,
option premiums, other payments or similar items on a contractual payment
date or otherwise in advance of SEI Trust's actual receipt of the amount
due, (b) the proceeds of any sale or other disposition of assets on the
contractual settlement date or otherwise in advance of SEI Trust's actual
receipt of the amount due or (c) provisional crediting of any amounts due,
and (i) SEI Trust is subsequently unable to collect full and final payment
for the amounts so credited within a reasonable time period using
reasonable efforts or (ii) pursuant to standard industry practice, law or
regulation SEI Trust is required to repay to a third party such amounts so
credited, or if any Property has been incorrectly credited, SEI Trust shall
have the absolute right in its sole discretion without demand to reverse
any such credit or payment, to debit or deduct the amount of such credit or
payment from the Account, and to otherwise pursue recovery of any such
amounts so credited from the Fund. Nothing herein or otherwise shall
require SEI Trust to make any advances or to credit any amounts until SEI
Trust's actual receipt thereof. The Fund hereby grants a first priority
contractual possessory security interest in and a right of setoff against
the assets maintained in an Account hereunder in the amount necessary to
secure the return and payment to SEI Trust of any advance or credit made by
SEI Trust (including charges related thereto) to such Account.
13. COLLECTIONS. All collections of monies or other property in respect, or
which are to become part, of the Property (but not the safekeeping thereof
upon receipt by SEI Trust) shall be at the sole risk of the Fund. If
payment is not received by SEI Trust within a reasonable time after proper
demands have been made, SEI Trust shall notify the Fund in writing,
including copies of all demand letters, any written responses and memoranda
of all oral responses and shall await instructions from the Fund. SEI Trust
shall not be obliged to take legal action for collection unless and until
reasonably indemnified to its satisfaction. SEI Trust shall also notify the
Fund as soon as reasonably practicable whenever income due on securities is
not collected in due course and shall provide the Fund with periodic status
reports of such income collected after a reasonable time.
19 of 19
