CUSTODIAN AGREEMENT
Exhibit 99.B(g)(1)
THIS AGREEMENT, dated as of August 23, 2011, between SEI Institutional International Trust, an open end investment management company organized under the laws of the State of Massachusetts (the Trust), on behalf of its portfolios listed on Schedule A attached hereto severally and not jointly (each a Fund and, collectively, the Funds), registered under the Investment Company Act of 1940 and XXXXX BROTHERS XXXXXXXX & CO., a limited partnership formed under the laws of the State of New York (BBH&Co. or the Custodian).
2.1. This Agreement has been, and, at the time of delivery of each Instruction, the Instruction will have been, duly authorized, executed and delivered by the Trust. This Agreement does not violate any Applicable Law or conflict with or constitute a default under the respective Fund’s prospectuses or other organic document, agreement, judgment, order or decree to which the Trust is a party or by which it or the Funds’ Investments are bound.
2.2. By providing an Instruction with respect to the first acquisition of an Investment by a Fund in a jurisdiction other than the United States of America, the Trust shall be deemed to have confirmed to the Custodian that the Trust has: (a) assessed all material Country or Sovereign Risks and accepted responsibility for their occurrence; (b) made all determinations required to be made by the Trust under the 1940 Act, except those delegated to the Custodian pursuant to Delegation Schedule attached hereto; and (iii) if deemed appropriate by the Trust, adequately disclosed to its shareholders and prospective investors, all material investment risks, including any Country Risks. Nothing in this section shall relieve the Custodian of its responsibility for performance of its duties under Section 8.2 with respect to foreign depository information in connection with Rule 17f-7 under the 1940 Act.
2.3. The Trust shall safeguard and shall solely be responsible for its safekeeping of any testkeys, identification codes, passwords, other security devices or statements of account with which the Custodian provides it (except to the extent that any failure by the Trust to safe keep such devices or statements is beyond its reasonable control or is caused or contributed to by the Custodian or by the design, or intended use or manufacture of the device or statement). In furtherance and not limitation of the foregoing, in the event the Trust utilizes any on-line service offered by the Custodian, the Trust and the Custodian shall be fully responsible for the security of its own connecting terminal, access thereto and the proper and authorized use thereof and the initiation and application of continuing effective safeguards in respect thereof (except to the extent that any failure by the Trust to safe keep such devices or statements is beyond its reasonable
control or is caused or contributed to by the Custodian or by the design, or intended use or manufacture of the device or statement). Additionally, if the Trust uses any on-line or similar communications service made available by the Custodian, the Trust shall be solely responsible for ensuring the security of its access to the service and for the use of the service (except to the extent that any failure by the Trust to safe keep such devices or statements is beyond its reasonable control or is caused or contributed to by the Custodian or by the design, or intended use or manufacture of the device or statement) and shall only attempt to access the service and the Custodian’s computer systems as directed by the Custodian. If the Custodian provides any computer software to the Trust relating to the services described in this Agreement, the Trust will only use the software for the purposes for which the Custodian provided the software to the Trust, and will abide by the license agreement accompanying the software and any other security policies that the Custodian provides to the Fund.
2.4. By providing an Instruction in respect of an Investment (which Instruction may relate to among other things, the execution and/or settlement of trades), the Trust hereby (i) authorizes BBH&Co. to complete such documentation as may be required or appropriate for the execution of the Instruction, and agrees to be contractually bound to the terms of such reasonable documentation “as is” without recourse against BBH&Co.; (ii) represents, warrants and covenants that it has accepted and agreed to comply with all Applicable Law, terms and conditions to which it and/or its Investment may be bound, including without limitation, requirements imposed by the Investment prospectus or offering circular, subscription agreement, any application or other documentation relating to an Investment (e.g., compliance with suitability requirements and eligibility restrictions); (iii) acknowledges and agrees that BBH&Co. will not be responsible for the accuracy of any information provided to it by or on behalf of the Fund, or for any underlying commitment or obligation inherent to an Investment; (iv) except as otherwise provided for in Section 2.4.1, represents, warrants and covenants that it will not effect any sale, transfer or disposition of Investment(s) held in BBH&Co.’s name by any means other than the issuance of an Instruction by the Trust to BBH&Co.; (v) acknowledges that collective investment schemes (and/or their agent(s)) in which a Fund invests may pay to BBH&Co. certain fees (including without limitation, shareholder servicing and/or trailer fees) in respect of the Fund’s investments in such schemes; (vi) agrees that BBH&Co. shall have no obligation or responsibility whatsoever to respond to, or provide capital in connection with any capital calls, letters of intent of other requirements as set out in the prospectus or offering circular of an Investment; (vii) represents, warrants and covenants that it will provide BBH&Co. with such information as is necessary or appropriate to enable BBH&Co.’s performance pursuant to an Instruction or under this Agreement; (viii) represents that it is not a “Plan” (which term includes (1) employee benefit plans that are subject to the United States (“US”) Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or plans, individual retirement accounts and other arrangements that are subject to Section 4975 of the US Internal Revenue Code of 1986, as amended (the “Code”), (2) plans, individual retirement accounts and other arrangements that are subject to the prohibited transaction provisions of Section 406 of ERISA or Section 4975 of the Code, and (3) entities the underlying assets of which are considered to include “plan assets” of such plans, accounts and arrangements), or an entity purchasing shares on behalf of, or with the “plan assets” of, a Plan; (ix) undertakes to inform BBH&Co. and to keep the same updated as to the status under ERISA or Section 4975 of the Code, each as amended, of the beneficial investor to the Investment, and as to any tax withholding or benefit to which an Investment may be subject; (x) acknowledges that BBH&Co. shall have no obligation to fund any order placed by the Trust for which the Fund does not have sufficient cash on deposit with BBH&Co.; and (xi) agrees that BBH&Co. shall be held harmless for the acts, omissions or any unlawful activity of any agent of the Fund (other than BBH&Co.) or any transfer agent or other agent of an Investment in which the Trust may invest.
2.4.1. To the extent that a Fund holds Investments in an account opened in the name of BBH&Co. as custodian for and at the direction of the Trust, and the Trust requests that BBH&Co. provide the Trust with the capability to place orders and execute trades in fund shares directly with such fund companies and/or their transfer agents which shall be settled in an account established with each such fund company or its transfer agent, the Trust hereby acknowledges that BBH&Co. is under no obligation to agree to such arrangement but if BBH&Co. so agrees, the Trust (i) acknowledges that all relevant terms under Section 2.4 above apply thereto, (ii) authorizes BBH&Co. as custodian, to grant a limited power of attorney to the Trust or its designated agent to enable the Trust to so execute, (iii) agrees to ensure that any instructions issued by the Trust or its designated agent shall
also be concurrently submitted to BBH&Co., and (iv) shall adhere to any BBH&Co. procedures established with each such fund or its transfer agent with respect thereto including, but not limited to, the terms of the limited power of attorney. The Trust also acknowledges and agrees that (1) BBH&Co. is acting solely in its capacity as custodian and is not acting as a broker or introducing broker on behalf of the Trust, (2) BBH&Co. is not receiving compensation in connection with the Fund’s execution hereunder of trades with each such fund other than its usual and customary custody fees and transaction charges, (3) it will provide such account opening information to each such fund and/or transfer agent as and when requested by such fund and/or transfer agent, and (4) BBH&Co. is not responsible for (a) providing information published by the relevant distributor of each such fund including, but not limited to, the prospectus for each such Investment in a fund or for resolving execution queries or complaints relative to any such Investment, and (b) assessing the suitability of any such Investment executed directed by the Trust.
3. Representation and Warranty of BBH&Co. BBM&Co. hereby represents and warrants that this Agreement has been duly authorized, executed and delivered by BBH&Co, and does not and will not violate any Applicable Law or conflict with or constitute a default under BBH&Co.’s limited partnership agreement or any agreement, instrument, judgment, order or decree to which BBH&Co. is a party or by which it is bound. BBH&Co. further represents and warrants that it has adopted and maintains reasonable facilities and procedures to provide for continued services in the event of an emergency or disaster. BBH&Co. further represents and warrants that it possesses in full force and effect all licenses, permits and other governmental authorizations necessary to enter into and perform its obligations under this Agreement.
4.2.3. Other Forms of Instruction. Instructions may also be transmitted by another means determined by the Trust or Authorized Persons and acknowledged and accepted by the Custodian (subject to the same limits as to acknowledgements as is contained in Section 4.2.1, above) including, but not limited to, Instructions given orally or by SWIFT, telex or telefax (whether tested or untested).
When an Instruction is given by means established under Sections 4.2.1 through 4.2.3 above, it shall be the responsibility of the Custodian to use reasonable care to adhere to any security or other procedures established in writing between the Custodian and the Authorized Person with respect to such means of Instruction, but such Authorized Person shall be solely responsible for determining that the particular means chosen is reasonable under the circumstances (unless such method is a product proprietary to the Custodian and offered to the Trust by the Custodian). Oral Instructions shall be binding upon the Custodian only if and when the Custodian takes action with respect thereto. With respect to telefax instructions, the parties agree and acknowledge that receipt of legible Instructions cannot be assured, that the Custodian cannot verify that authorized signatures on telefax instructions arc original or properly affixed, and that the Custodian shall not be liable for losses or expenses incurred through actions taken in reasonable reliance on inaccurately stated, illegible or unauthorized telefax instructions. Custodian shall promptly notify the Trust once it becomes aware that it has received an illegible or unauthorized Instruction and shall be protected in waiting to act until such Instruction is clarified. The provisions of Section 4A of the Uniform Commercial Code shall apply to Funds Transfers performed in accordance with Instructions. The Funds Transfer Services Schedule and the Electronic and Online Services Schedule to this Agreement shall comprise a designation of form of a means of delivering Instructions for purposes of this Section 4.2.
4.3.1. The transaction date and the date and location of settlement;
4.3.2. The specification of the type of transaction;
4.3.3. A description of the Investments or moneys in question, including, as appropriate, quantity, price per unit, amount of money to be received or delivered and currency information. Where an Instruction is communicated by electronic means, or otherwise where an Instruction contains an identifying number such as a CUSIP, SEDOL or ISIN number, the Custodian shall be entitled to rely on such number as controlling notwithstanding any inconsistency contained in such Instruction, particularly with respect to Investment description; and
4.3.4. The name of the broker or similar entity concerned with execution of the transaction.
If the Custodian shall determine that an Instruction is either unclear, inconsistent or incomplete, the Custodian will give prompt notice of such determination to the Trust, and the Trust shall thereupon amend or otherwise reform such Instruction. In such event, the Custodian shall have no obligation to take any action in response to the Instruction initially delivered until the redelivery of an amended or reformed Instruction.
case through no fault or neglect of the Custodian or ant of its Subcustodians; or (b) pre-existing faults or defects in Investments that arc delivered to the Custodian or its Subcustodians. The Custodian is hereby authorized to hold with itself or its Subcustodian, and to record in one or more accounts, all Investments delivered to and accepted by the Custodian, any Subcustodian or their respective agents pursuant to an Instruction or in consequence of any corporate action. The Custodian shall hold Investments for the account of the Trust (and the Funds) and shall segregate Investments from assets belonging to the Custodian and shall cause its Subcustodians to segregate Investments from assets belonging to the Subcustodian in an account held for the Trust (and for the relevant Fund) or in an account maintained by the Subcustodian generally for non-proprietary assets of the Custodian. Subject to paragraph 5.1, the Custodian shall not, and shall procure that its Subcustodians do not, commingle any assets held for the account of one Fund with those held for the account of another Fund.
5.2. Certificated Assets. Investments that are certificated may be held in registered or bearer form: (a) in the Custodian’s vault; (b) in the vault of a Subcustodian or agent of the Custodian or a Subcustodian; or (c) in an account maintained by the Custodian, Subcustodian or agent at a Securities Depository; all in accordance with customary market practice in the jurisdiction in which any Investments are held.
rules of such Securities Depository or such Clearing Corporation); or (b) otherwise in accordance with an Instruction, Applicable Law, generally accepted trade practices, or the terms of the instrument representing such Investment.
6.3. Delivery and Receipt in Connection with Borrowings of a Fund or other Collateral and Margin Requirements. Pursuant to Instruction, the Custodian may deliver or receive Investments or cash of the Trust (or a Fund) in connection with borrowings or loans by the Trust (or the Fund) and other collateral and margin requirements.
The Trust hereby agrees and acknowledges that (i) in performing the duties provided for in this Section 6.5, the Custodian is acting solely as the designated attorney of the Trust and is in no way to be construed to be acting as agent for the Grantor or the Borrower (each as defined under the relevant participant documentation); and (ii) the custodial arrangement provided for herein is not intended to constitute, and shall not be construed to establish, a partnership or joint venture between the Custodian and the Trust, or between the Custodian, the
Grantor or the Borrower. Without limiting the generality of the foregoing, the Custodian (a) makes no warranty or representation and shall not be responsible for any warranty or representation made in or in connection with any of the participation documents and related credit agreements, notes and other agreements referenced therein, or for the financial condition of any Borrower, or for the observance or performance of any obligations of a Grantor, a Borrower or any other person (other than the Custodian itself or an agent or an affiliate of the Custodian), or for the truth or accuracy of any document provided to the Trust that the Custodian has initially received from, or that the Custodian has prepared based upon information received from, a Grantor, a Borrower or any other person; (b) makes no warranty or representation as to and shall not be responsible for the due execution, validity, enforceability, sufficiency or collectibility of, any of the participation documents and related credit agreements, notes and other agreements referenced therein, except with respect to the Custodians’s due execution of such participation document as the Trust’s designated attorney-in-fact hereunder; (c) makes no warranty or guarantee as to; (i) future payments by a Borrower or any other obligor or guarantor of the loans, (ii) a Grantor’s or Borrower’s future compliance with or performance of any of the terms and conditions contained in the participation documents and related credit agreements, notes and other agreements referenced therein, or (iii) the collectibility of the loans or the collateral as described in any participation documents and related credit agreements, notes and other agreements referenced therein.
delivery of such information by the Custodian. Any advance credit of cash or shares expected to be received as a result of any corporate action shall be subject to actual collection and may be reversed by the Custodian.
In fulfilling the duties set forth in Sections 6.6 through 6.15 above, the Custodian shall transmit promptly to the Trust all written information (including, without limitation, pendency of calls and maturities of domestic securities and expirations of rights in connection therewith and notices of exercise of call and put options written by a Fund and the maturity of futures contracts purchased or sold) received by the Custodian from issuers of the Investments being held for a Fund. With respect to tender or exchange offers, the Custodian shall transmit promptly to the Trust all written information received by the Custodian from issuers of the Investments whose tender or exchange is sought and from the party (or its agent) making the tender or exchange offer. If the Trust desires to take action with respect to any tender offer, exchange offer and any other similar transaction, the Trust shall notify the Custodian on or prior to the date on which the Custodian is to take such action.
Subcustodian to make, in the name and on behalf of the Trust or otherwise, any required filings or applications with the appropriate authorities or central bank in the affected jurisdiction, provided however, that such cooperation shall not require the Custodian to incur any material expense or liability unless the Custodian is furnished by the Trust with specific indemnification, reasonably satisfactory to the Custodian, against such expense or liability. All currency transactions in any account opened pursuant to this Agreement are subject to any applicable exchange control regulations of the United States and of the country where such currency is the lawful currency or where the account is maintained. Any taxes, costs, charges or fees imposed on the convertibility of a currency held by a Fund shall be for the account of the Fund.
7.4.2. Foreign Exchange with the Custodian as Principal. The Custodian may undertake foreign exchange transactions with a Fund as principal, as the Custodian and the Fund may agree from time to time. In such event, the foreign exchange transaction will be performed in accordance with the particular agreement of the parties, or in the event a principal foreign exchange transaction is initiated by an Instruction in the absence of a specific agreement, such transaction will be performed in accordance with the usual commercial terms of the Custodian including the Online Terms and Conditions described in Section 12.12. In the event that the Fund defaults on the settlement of any such foreign exchange transaction with the Custodian, the Fund shall be liable for contracted currency of the transaction together with any xxxx to market exposure associated with the replacement purchase of the contracted currency undertaken with the Custodian.
7.6. Advances. If, for any reason in connection with this Agreement the Custodian or any
7.6.1. Subcustodian makes an Advance to facilitate settlement or otherwise for the benefit of the Fund (whether or not any Principal or Agency Account shall be overdrawn either during, or at the end of, any Business Day), the Fund hereby does:
7.6.2. acknowledge that the Fund shall have no right, title or interest in or to any Investments purchased with such Advance or proceeds of such Investments, and that any credit to an account of Fund shall be provisional, until: (a) the debit of the Principal or Agency Account by Custodian for an amount equal to Advance Costs: and/or (b) if such debit produces an overdraft in such account, reimbursement to the Custodian or Subcustodian for the amount of such overdraft;
7.6.3. acknowledge that the Custodian has an automatically perfected statutory security interest in Investments purchased with any such Advance pursuant to Section 9-206 of the Uniform Commercial Code as in effect in the State of New York from time to time; in addition, in order to secure the obligations of the Fund to pay or perform any and all obligations of the Fund pursuant to this Agreement, including without limitation to repay any Advance made pursuant to this Agreement, grant to the Custodian a security interest in all Investments and proceeds thereof (as defined in the Uniform Commercial Code as currently in effect in the State of New York); and agree to take, and agree that the Custodian may take, in respect of the security interest referenced above, any further actions that the Custodian may reasonably require to perfect or otherwise protect the same.
7.7. Custodian’s Rights Neither the Custodian nor any Subcustodian shall be obligated to make any Advance or to allow an Advance to occur to the Fund, and in the event that the Custodian or any Subcustodian does make or allow an Advance, any such Advance and any transaction giving rise to such Advance shall be for the account and risk of the Fund and shall not be deemed to be a transaction undertaken by the Custodian for its own account and risk. If such Advance shall have been made or allowed by a Subcustodian or any other person, the Custodian may assign all or part of its security interest referenced above and any other rights granted to the Custodian hereunder to such Subcustodian or other person. If the Fund shall fail to repay the Advance Costs when due, the Custodian or its assignee, as the case may be. shall be entitled to a portion of the available cash balance in any Agency or Principal Account equal to such Advance Costs, and the Fund authorizes the Custodian, on behalf of the Fund, to pay an amount equal to such Advance Costs irrevocably to such Subcustodian or other person, and to dispose of any property in such Account to the extent necessary to make such payment. Any Investments and funds credited to accounts subject to this Agreement created pursuant hereto shall be treated as financial assets credited to securities accounts under Articles 8 and 9 of the Uniform Commercial Code as in effect in the State of New York from time to time. Accordingly, the Custodian and any Subcustodian shall have the rights and benefits of a secured creditor that is a securities intermediary under such Articles 8 and 9.
right of offset against the balances in any Agency Account maintained hereunder to the extent that the aggregate of all Principal Accounts is overdrawn.
8.2.1. Board Approval of Foreign Subcustodians. Unless and except to the extent that the board of directors of the Fund has delegated to and the Custodian has accepted delegation of review of certain matters concerning the appointment of Subcustodians pursuant to Section 8.2.2 below, the Custodian shall, prior to the appointment of any Subcustodian for purposes of holding Investments of a Fund outside the United States, obtain written confirmation of the approval of the Trust’s Board of Trustees with respect to (a) the identity of a Subcustodian, and (b) the Subcustodian agreement which shall govern such appointment, such approval to be signed by an Authorized Person
assess the risks inherent in a Fund’s Investments (except as provided in Sections 8.2 and 8.2.3 of this Agreement) or to provide investment advice with respect to such Investments and that the Fund as principal shall bear any risks attendant to particular Investments such as failure of counterparty or issuer
The Funds shall not be responsible under this Agreement and shall not be liable hereunder for any loss or damage in consequence of any Force Majeure circumstance or event.
9.1.2. Country Risk shall mean, with respect to the acquisition, ownership, settlement or custody of Investments in a jurisdiction, all risks relating to, or arising in consequence of, systemic and markets factors affecting the acquisition, payment for or ownership of Investments, including (a) the prevalence of crime and corruption, (b) the inaccuracy or unreliability of business and financial information, (c) the instability or volatility of banking and financial systems, or the absence or inadequacy of an infrastructure to support such systems, (d) custody and settlement infrastructure of the market in which such Investments are transacted and held, (e) the acts, omissions and operation of any Securities Depository, (I) the risk of the bankruptcy or insolvency of banking agents, counterparties to cash and securities transactions, registrars or transfer agents, and (g) the existence of market conditions which prevent the orderly execution or settlement of transactions or which affect the value of assets. Nothing under this section shall relieve the Custodian of its responsibilities under Section 8.2.3 of this Agreement or the Delegation Schedule attached hereto.
9.1.3. Sovereign Risk shall mean, in respect of any jurisdiction, including the United States of America, where Investments are acquired or held hereunder or under a Subcustody Agreement, all risks of (a) any act of war, terrorism, riot, insurrection or civil commotion, (b) the imposition of any investment, repatriation or exchange control restrictions by any governmental authority, (c) the confiscation, expropriation or nationalization of any Investments by any governmental authority, whether de facto or de jure, (d) any devaluation or revaluation of the currency, (e) the imposition of taxes, levies or other charges affecting Investments, (f) any change in the Applicable Law, or (g) any other economic or political risk incurred or experienced. Nothing in this section shall relieve Custodian of its obligations under Section 8.2.3.
issuer of Investments or book-entry or other agent of and issuer; (b) any counterparty with respect to any Investment, including any issuer of exchange-traded or other futures, option, derivative or commodities contract; (c) failure of an Investment Advisor, Foreign Custody Manager or other agent (other than a Subcustodian or agent, for which the Custodian is responsible in accordance with the terms of this Agreement) of a Fund; or (d) failure of other third parties similarly beyond the control or choice of the Custodian.
11. Reports and Records. The Custodian shall:
11.1. create and maintain records relating to the performance of its obligations under this Agreement (including without limitation such reports as may be required pursuant to Section 31(a) of the 1940 Act and the rules thereunder);
11.2. make available to the Fund, its auditors, agents and employees, during regular business hours of the Custodian, upon reasonable request and during normal business hours of the Custodian, and permits the copying of all records maintained by the Custodian pursuant to paragraph 11.1 above, subject, however, to all reasonable security requirements of the Custodian then applicable to the records of its custody customers generally; and
11.3. make available to the Funds all Electronic Reports; it being understood that the Custodian shall not be liable hereunder for the inaccuracy or incompleteness thereof or for errors in any information included therein.
11.4. The Funds shall examine all records, howsoever produced or transmitted, promptly upon receipt thereof and notify the Custodian promptly of any discrepancy or error therein. Unless a Fund delivers written notice of any such discrepancy or error within a reasonable time (but in no event less than 60 days) after its receipt thereof, such records shall be deemed to be true and accurate. It is understood that the Custodian now obtains and will in the future obtain information on the value of assets from outside sources that may be utilized in certain reports made available to the Funds. The Custodian deems such sources to be reliable but it is acknowledged and agreed that the Custodian does not verify nor represent nor warrant as to the accuracy or completeness of such information and accordingly shall be without liability in selecting and using such sources and furnishing such information.
12. Miscellaneous.
12.5. GOVERNING LAW AND JURISDICTION. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND BE GOVERNED BY THE LAWS OF, THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAW OF SUCH STATE. The parties hereby agree to the exclusive jurisdiction of federal courts sitting in the State of New York or of the State courts of such State.
If to the Trust:
SEI Institutional International Trust
Attn: Legal Department
Xxx Xxxxxxx Xxxxxx Xxxxx
Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile:
If to the Custodian:
Xxxxx Brothers Xxxxxxxx & Co.
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Manager, Securities Department Telephone: (000)000-0000
Facsimile: (000)000-0000
or such other address as the Trust or the Custodian may have designated in writing to the other.
13. Definitions. The following defined terms will have the respective meanings set forth below.
13.1. Advance(s) shall mean any extension of credit by or through the Custodian or by or through any Subcustodian and shall include, without limitation, amounts due to the Custodian as the principal counterparty to any foreign exchange transaction with the Fund as described in Section 7.4.2 hereof, or paid to third parties for account of the Fund or in discharge of any expense, tax or other item payable by the Fund.
13.2. Advance Costs shall mean any Advance, interest on the Advance and any related expenses, including without limitation any xxxx to market loss of the Custodian or Subcustodian on any Investment to which Section 7.6.1 applies.
13.3. Agent(s) shall have the meaning set forth in Section 6.16
13.4. Agency Account(s) shall mean any deposit account opened on the books of a Subcustodian or other banking institution in accordance with Section 7.1 hereof.
13.5. Applicable Law shall mean with respect to each jurisdiction, all (a) laws, statutes, treaties, regulations, guidelines (or their equivalents); (b) orders, interpretations licenses and permits; and (c) judgments, decrees, injunctions writs, orders and similar actions by a court of competent jurisdiction; compliance with which is required or customarily observed in such jurisdiction.
13.6. Authorized Person(s) shall mean any person or entity authorized to give Instructions on behalf of a Fund in accordance with Section 4.1 hereof.
13.7. Book-entry Agent(s) shall mean an entity acting as agent for the issuer of Investments for purposes of recording ownership or similar entitlement to Investments, including without limitation a transfer agent or registrar.
13.8. Clearing Corporation shall mean any entity or system established for purposes of providing securities settlement and movement and associated functions for a given market.
13.9. Delegation Schedule shall mean any schedule, designated as such entered into between the Custodian and the Trust or its authorized representative concerning the appointment and administration of Subcustodians delegated to the Custodian pursuant to Rule 17f-5 under the 1940 Act.
13.10. Electronic and Online Services Schedule shall mean any schedule, designated as such to this agreement entered into between the Custodian and the Fund or its authorized representative concerning electronic and online services as described therein and as may be made available from time to time by the Custodian to the Trust.
13.11. Electronic Reports shall mean any reports prepared by the Custodian and remitted to the Trust or its authorized representative via the internet or electronic mail.
13.12. Foreign Custody Manager shall mean the Trust’s foreign custody manager appointed pursuant to Rule 17f-5 under the 1940 Act.
13.13. Foreign Financial Regulatory Authority shall have the meaning given by Section 2(a)(50) of the 0000 Xxx.
13.14. Funds Transfer Services Schedule shall mean any schedule entered into between the Custodian and the Trust or its authorized representative with respect to certain matters concerning the processing of payment orders from Principal Accounts of the Trust (or a Fund).
13.15. Global Custody Network Listing shall mean the listings most recently furnished by the Custodian to the Trust of the Countries approved by the Trust and Subcustodians selected by the Custodian in connection with a Fund’s Investments in non-U.S. Markets.
13.16. Instruction(s) shall have the meaning assigned in Section 4 hereof.
13.17. Investment Advisor shall mean any person or entity that is an Authorized Person to give Instructions with respect to the investment and reinvestment of a Fund’s Investments.
13.18. Investment(s) shall mean any investment asset of a Fund, including without limitation securities, bonds, notes, and debentures as well as receivables, derivatives, contractual rights or entitlements and other intangible assets but shall not include any Principal Account.
13.19. Margin Account shall have the meaning set forth in Section 6.4
13.20. Principal Account(s) shall mean deposit accounts of the Trust (or a Fund) carried on the books of BBH&Co. as principal in accordance with Section 7 hereof.
13.21. Recover Markets shall mean: (i) as of the date of this Agreement: Jamaica, Trinidad and Tobego, Cyprus, Tunisia and Ivory Coast and (ii) such other markets of investment as may be agreed upon from time to time by the Custodian and the Funds in writing prior to the Custodian arranging for custody in such market..
13.22. Safekeeping Account shall mean an account established on the books of the Custodian or any Subcustodian for purposes of segregating the interests of the Trust (or a Fund) (or clients of the Custodian or Subcustodian) from the assets of the Custodian or any Subcustodian.
13.23. SEC shall mean the U.S. Securities and Exchange Commission
13.24. Securities Depository shall mean a central or book entry system or agency established under Applicable Law for purposes of recording the ownership and/or entitlement to investment securities for a given market that, if a foreign Securities Depository, meets the definitional requirements of Rule 17f-7 under the 0000 Xxx.
13.25. Subcustodian(s) shall mean each bank appointed by the Custodian pursuant to Section 8 hereof, but shall not include Securities Depositories or Clearing Corporations.
13.26. 1940 Act shall mean the Investment Company Act of 1940, as amended.
14. Compensation. The Trust agrees to pay to the Custodian (a) a fee in an amount set forth in the fee letter between the Trust and the Custodian in effect on the date hereof or as amended from time to time, and (b) all out-of-pocket expenses incurred by the Custodian, including the fees and expenses of all Subcustodians, and payable from time to time provided that such fees and expenses are timely accounted to the Trust. Amounts payable by the Fund under and pursuant to this Section 15 shall be payable by wire transfer to the Custodian at BBH&Co. in New York, New York.
notice to the Trust either (a) deliver the Funds’ Investments held hereunder to the Funds at the address designated for receipt of notices hereunder; or (b) deliver any Investments held hereunder to a bank or trust company having a capitalization of $200,000,000 USD equivalent and operating under the applicable law of the jurisdiction where such Investments are located, such delivery to be at the risk of the Funds. In the event that Investments or moneys of a Fund remain in the custody of the Custodian or its Subcustodians after the date of termination owing to the failure of the Fund to issue Instructions with respect to their disposition, or owing to the fact that such disposition could not be accomplished in accordance with such Instructions despite diligent efforts of the Custodian, the Custodian shall be entitled to compensation for its services with respect to such Investments and moneys during such period as the Custodian or its Subcustodians retain possession of such items and the provisions of this Agreement shall remain in full force and effect until disposition in accordance with this Section is accomplished.
XXXXX BROTHERS XXXXXXXX & CO. |
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Xxxxxxxx X. Xxxxxx |
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Managing Director |
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Vice President |
Schedule A
International Equity Fund
Emerging Markets Equity Fund
International Fixed Income Fund
Emerging Markets Debt Fund
Tax-Managed International Equity Fund
FUNDS TRANSFER SERVICES SCHEDULE
(“FTSS”)
In accordance with Section 4.2 of the Custodian Agreement, the Fund acknowledges the following terms and conditions in respect of all funds transfers effected by the Custodian. References to UCC 4A shall mean Article 4A of the Uniform Commercial Code as currently in effect in the State of New York. Terms not otherwise defined herein shall have the meanings accorded to them in the Custodian Agreement.
· BBH Worldview® Payment Products. The Custodian offers to the Fund use of its BBH Worldview Payment Products (“BBH Worldview”), which are Custodian proprietary on-line payment order authorization facilities with built-in authentication procedures. The Custodian and the Fund shall each be responsible for maintaining the confidentiality of passwords or other codes used by them in connection with BBH Worldview. The Custodian will act on FT Instructions received through BBH Worldview without duty of further confirmation unless the Fund notifies the Custodian that its password is not secure. The Fund agrees that access to, and use of, BBH Worldview shall be governed by an Electronic and On-line Services Schedule, which the Fund will execute prior to access to BBH Worldview.
· SWIFT Transmission. The Custodian and the Fund shall comply with SWIFT’s authentication procedures. The Custodian will act on FT Instructions received via SWIFT provided the instruction is authenticated by the SWIFT system.
· Written Instructions. Instructions may be transmitted in an original writing that bears the manual signature of an Authorized Person(s).
· Computer Transmission. The Custodian is able to accept transmissions sent from the Fund’s computer facilities to the Custodian’s computer facilities. If the Fund determines to use its proprietary transmission or other electronic transmission method, it must provide Custodian sufficient notice and information to allow testing or other confirmation that FT Instructions received via the Fund Designated Security Procedure can be processed in good time and order. The Custodian may require the Fund to execute additional documentation prior to the use of such transmission method.
· Facsimile Transmission.
A FT Instruction transmitted to the Custodian by facsimile transmission must be transmitted by the Fund to a telephone number specified from time to time by the Custodian for such purposes. The Custodian will then follow one of the procedures below:
1. If the facsimile requests a non-repetitive order, the Custodian will call the Fund and request to speak to an Authorized Person , and confirm the authorization and details of the payment order (a Callback);
2. If the facsimile FT Instruction pertains to a repetitive payment order (see Section 7 below), the Custodian may (at its sole discretion) perform a Callback. The Fund acknowledges that prior to its issuance of any repetitive payment order, it must (a) request that the appropriate repetitive payment order process be approved and set up at the Custodian, and (b) complete such documentation as may be required by the Custodian, including a PPO (as defined in Section 7).
The Custodian shall rely on the purported identity of the originator but due to the lack of reliability of a facsimile signature, it will not perform signature verification on facsimiles.
· Telephonic. The Fund may call a telephonic payment order into the Custodian at the telephone number designated from time-to-time by the Custodian for that purpose. The caller shall identify herself/himself as an Authorized Person. The Custodian shall obtain the FT Instruction details from the caller. The Custodian shall then follow one of the procedures below:
i. If the telephonic FT Instruction pertains to a non-repetitive payment order, the Custodian will perform a Callback; or
ii. If the telephonic FT Instruction pertains to a repetitive payment order (see Section 7 below), the Custodian may (at its sole discretion) perform a Callback. The Fund acknowledges that prior to its issuance of any repetitive payment order, it must (a) request that the appropriate repetitive payment order process be approved and set up at the Custodian, and (b) complete such documentation as may be required by the Custodian, including a PPO.
In electing to transmit a FT Instruction via a Fund Designated Security Procedure, the Fund (i) agrees to be bound by the transaction(s) or payment order(s) specified on said FT Instruction, whether or not authorized, and accepted by the Custodian in compliance with such Fund Designated Security Procedure, and (ii) accepts the risk associated with such Fund Designated Security Procedure and confirms it is commercially reasonable for the transmission and authentication of the FT Instruction.
The parties agree that the Fund’s transmission of a FT Instruction by means of any of the above Fund Designated Security Procedures and the Custodian’s acceptance and execution of such FT Instruction shall constitute a FT Instruction sent via a Fund Designated Security Procedure and governed by the terms of this FTSA.
4. Rejection of Payment Orders; Rescission of Designated Security Procedure. The Custodian shall give the Fund timely notice of the Custodian’s rejection of a FT Instruction. Such notice may be given in writing, via a Custodian Designated Security Procedure or any Fund Designated Security Procedure used by the Fund, or orally by telephone, each of which is hereby deemed commercially reasonable. In the event the Custodian fails to execute a properly executable FT Instruction and fails to give the Fund notice of the Custodian’s non-execution, the Custodian shall be liable only for the Fund’s actual damages and only to the extent that such damages are recoverable under UCC 4A. The Custodian, after providing prior written notice, may decide to no longer accept a particular Fund or Custodian Designated Security Procedure, or to do so only on revised terms, in the event that it determines that such agreed or established method of transmission represents a security risk or is attendant to any general change in the Custodian’s policy regarding FT Instructions. Notwithstanding anything in this FTSA and the Agreement to the contrary, the Custodian shall in no event be liable for any
consequential, indirect, special or punitive damages under this FTSA, whether or not such damages relate to services covered by UCC 4A, even if the Custodian was advised of the possibility of such damages.
6. Preauthorized Repetitive Payment Orders. The Fund may establish with the Custodian a process to preauthorize certain repetitive payments or transfers. The Fund will execute all documentation required by the Custodian, including a separate Preauthorized Repetitive Payment Order (PPO) form. The PPO shall be delivered to the Custodian in writing or by another Custodian Designated Security Procedure or Fund Designated Security Procedure, and will become effective after the Custodian shall have had a reasonable opportunity to act thereon (or if later, two (2) banking days after receipt by the Custodian). The PPO may take the form of either:
i. A standing instruction in which the Fund provides in the PPO all required information for a FT Instruction (except for the transfer date and amount) on a “standing instructions” basis. The Fund may from time-to-time instruct the Custodian to make a payment under the PPO, in writing or another Custodian Designated Security Procedure or Fund Designated Security Procedure, which instruction shall reference the repetitive line number (a number assigned to it by the Custodian after execution of the PPO), details of the payment, the transfer date and the amount of the transfer; or
ii. A recurring instruction in which the Fund supplies all required information for a FT Instruction with an instruction to process such payments with a specific frequency.
7. Responsibility for the Detection of Errors in Payment Orders; Liability of the Parties. The purpose of any Fund Designated Security Procedure or Custodian Designated Security Procedure is to confirm the authenticity of any FT Instruction and is not designed to detect errors or omissions in such FT Instructions. Therefore, the Custodian is not responsible for detecting any Fund error or omission contained in any FT Instruction received by the Custodian. In the event that the FT Instruction either (i) identifies the beneficiary by both a name and an identifying or Fund account number and the name and number identify different persons or entities, or (ii) identifies any Fund by both a name and an identifying number and the number identifies a person or entity different from the Fund identified by name, execution of the relevant payment order, payment to the beneficiary, cancellation of the payment order or actions taken by the Custodian or any Fund in respect of such payment order may be made solely on the basis of the number.
The Custodian shall not be liable for interest on the amount of any FT Instruction that was not authorized or was erroneously executed unless the Fund so notifies the Custodian within thirty (30) days following the Fund’s receipt of notice that such FT Instruction was processed. Any compensation payable in the form of interest shall be payable in accordance with UCC 4A. If a FT Instruction in the name of the Fund and accepted by the Custodian was not authorized by the Fund, the liability of the parties will be governed by the applicable provisions of XXX 0X.
DELEGATION SCHEDULE
By its execution of this Delegation Schedule dated as of August 23, 2011, SEI Institutional International Trust, a management investment company registered with the Securities and Exchange Commission (the Commission) under the Investment Company Act of 1940, as amended (the 1940 Act), acting through its Board of Trustees or its duly appointed representative (the Trust), hereby appoints XXXXX BROTHERS XXXXXXXX & CO., a New York limited partnership with an office in Boston, Massachusetts (the Delegate) and as Delegate hereby accepts appointment as, the Trust’s delegate to perform certain functions with respect to the custody of Trust’s Assets outside the United States.
1. Maintenance of the Trust’s Assets Abroad. The Trust, acting through its Board or its duly authorized representative, hereby instructs Delegate pursuant to the terms of the Custodian Agreement dated as of the date hereof executed by and between the Trust and the Delegate (the Custodian Agreement) to place and maintain the Trust’s Assets in countries outside the United States in accordance with Instructions received from the Trust’s Investment Advisor and in accordance with this Schedule. Such instruction shall represent an Instruction under the terms of the Custodian Agreement. The Trust acknowledges that (a) the Delegate shall perform services hereunder only with respect to the countries where it accepts delegation as Foreign Custody Manager as indicated on Delegate’s Global Custody Network Listing, as may be revised from time to time upon advance written notice to Trust; (b) depending on conditions in the particular country, advance notice may be required before the Delegate shall be able to perform its duties hereunder in or with respect to such country (such advance notice to be reasonable in light of the specific facts and circumstances attendant to performance of duties in such country); and (c) nothing in this Delegation Schedule shall require the Delegate to provide delegated or custodial services in any country, and there may from time to time be countries as to which the Delegate determines it will not provide delegation services. Delegate will provide the Trust with advance written notice of such countries.
2. Delegation. Pursuant to the provisions of Rule 17f-5 under the 1940 Act as amended, the Board hereby delegates to the Delegate, and the Delegate hereby accepts such delegation and agrees to perform those duties set forth in this Delegation Schedule concerning the safekeeping of the Trust’s Assets in each of the countries designated on the Global Custody Network Listing. The Delegate is hereby authorized to take such actions on behalf of or in the name of the Trust as are reasonably required to discharge its duties under this Delegation Schedule, including, without limitation, to cause the Trust’s Assets to be placed with a particular Eligible Foreign Custodian in accordance herewith. The Trust confirms to the Delegate that the Trust or its investment adviser has considered the Sovereign Risk and Country Risk as part of its continuing investment decision process, including such factors as may be reasonably related to the systemic risk of maintaining the Trust’s Assets in a particular country, including, but not limited to, financial infrastructure, prevailing custody and settlement systems and practices (including the use of any Securities Depository in the context of information provided by the Custodian in the performance of its duties as required under 1940 Act Rule 17f-7 and the terms of the Custodian Agreement governing such duties), and the laws relating to the safekeeping and recovery of the Trust’s Assets held in custody pursuant to the terms of the Custodian Agreement. The Delegate agrees to provide the Board from time to time such reasonable documentation of its capacity to exercise reasonable care in respect of the duties described in this attachment as the Board may reasonably require.
3. Selection of Eligible Foreign Custodian and Contract Administration. The Delegate shall perform the following duties with respect to the selection of Eligible Foreign Custodians and administration of certain contracts governing the Trust’s foreign custodial arrangements:
i. The Eligible Foreign Custodian’s practices, procedures, and internal controls, including, but not limited to, the physical protections available for certificated securities (if
applicable), the controls and procedures for dealing with any Securities Depository, the method of keeping custodial records, and the security and data protection practices;
ii. Whether the Eligible Foreign Custodian has the requisite financial strength to provide reasonable care for the Trust’s Assets placed with the Eligible Foreign Custodian;
iii. The Eligible Foreign Custodian’s general reputation and standing: and
iv. Whether the Trust will have jurisdiction over and be able to enforce judgments against the Eligible Foreign Custodian, such as by virtue of the existence of any offices of such Eligible Foreign Custodian in the United States or such Eligible Foreign Custodian’s appointment of an agent for service of process in the United States or consent to jurisdiction in the United States.
The Delegate shall be required to make the foregoing determination to the best of its knowledge and belief based only on information reasonably available to it.
i. For indemnification or insurance arrangements (or any combination of the foregoing) such that the Trust will be adequately protected against the risk of loss of assets held in accordance with such contract;
ii. That the Trust’s Assets will not be subject to any right, charge, security interest, lien or claim of any kind in favor of the Eligible Foreign Custodian or its creditors except a claim of payment for their safe custody or administration or, in the case of cash deposits, liens or rights in favor of creditors of such Custodian arising under bankruptcy, insolvency or similar laws;
iii. That beneficial ownership of the Trust’s 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 Trust’s Assets placed in the custody of the Eligible Foreign Custodian as belonging to the Trust or as being held by a third party for the benefit of the Trust;
v. That the Trust’s independent public accountants will be given access to those records described in (iv) above or confirmation of the contents of such records; and
vi. That the Delegate and the Trust will receive sufficient and timely periodic reports with respect to the safekeeping of the Trust’s Assets placed in the custody of the Eligible Foreign Custodian, including, but not limited to, notification of any transfer to or from the Trust’s account or a third party account containing the Trust’s Assets.
Such contract may contain, in lieu of any or all of the provisions specified in this Section 3(b), such other provisions that the Delegate determines will provide, in their entirety, the same or a greater level of care and protection for the Fund’s Assets as the specified provisions, in their entirety.
under Section 3(a) of this Delegation Schedule. The Delegate shall monitor the performance and continuing appropriateness of the contract governing the Trust’s arrangements in accordance with the criteria established under Section 3(b) of this Delegation Schedule.
7. Direction as to Eligible Foreign Custodian. Notwithstanding this Delegation Schedule, the Trust, acting through its Board, its Investment Advisor or its other authorized representative, may direct the Delegate to place and maintain the Trust’s Assets with a particular Eligible Foreign Custodian, including without limitation with respect to investment in countries as to which the Custodian will not provide delegation services. In such event, the Delegate shall be entitled to rely on any such instruction as an Instruction under the terms of the Custodian Agreement and shall have no duties under this Delegation Schedule with respect to such arrangement save those that it may undertake specifically in writing with respect to each particular instance.
The Trust hereby represents and warrants that its Board of Trustees has determined that it is reasonable to rely on the Delegate to perform the delegated responsibilities provided for herein and that this Delegation Schedule has been duly authorized, executed and delivered by the Trust and is a legal, valid and binding agreement of the Trust.
12. Definitions. Capitalized terms in this Delegation Schedule have the following meanings:
Country Risk — shall have the meaning set forth in Section 9.1.2 of the Custodian Agreement.
Eligible Foreign Custodian - shall have the meaning set forth in Rule 17f- 5(a)(1) and shall also include a U.S. Bank.
Trust’s Assets - shall mean any of the Trust’s investments (including foreign currencies) for which the primary market is outside the United States, and such cash and cash equivalents as are reasonably necessary to effect the Trust’s transactions in such investments.
Instructions - shall have the meaning set forth in the Custodian Agreement.
Securities Depository - shall have the meaning set forth in Rule 17f-7.
Sovereign Risk - shall have the meaning set forth in Section 9.1.3 of the Custodian Agreement.
U.S. Bank - shall mean a bank that qualifies to serve as a custodian of assets of investment companies under Section 17(f) of the Act.
13. Governing Law and Jurisdiction. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAWS PRINCIPLES OF SUCH STATE. The parties hereby agree to the exclusive jurisdiction of federal courts sitting in the State of New York or of the State courts of such State.
[Signatures Follow on Next Page]
XXXXX BROTHERS XXXXXXXX & CO. |
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/s/ Xxxxxxxx X. Xxxxxx |
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/s/ Xxxxx X. XxXxxx |
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Xxxxxxxx X. Xxxxxx |
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Xxxxx X. XxXxxx |
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Title: |
Managing Director |
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Vice President |