THE ADVISORS' INNER CIRCLE FUND II
CUSTODY AGREEMENT
THIS AGREEMENT is made and entered into as of this 12(th) day of
February, 2013, by and between THE ADVISORS' INNER CIRCLE FUND II, a
Massachusetts trust (the "Trust"), acting for and on behalf of each series as
are currently authorized and issued by the Trust or may be authorized and
issued by the Trust subsequent to the date of this Agreement (each a "Fund" and
collectively the "Funds") and U.S. BANK NATIONAL ASSOCIATION, a national
banking association organized and existing under the laws of the United States
of America (the "Custodian").
WHEREAS, the Trust is registered under the Investment Company Act of
1940, as amended (the "1940 Act"), as an open-end management investment
company, and is authorized to issue shares of beneficial interest in separate
series, with each such series representing interests in a separate portfolio of
securities and other assets;
WHEREAS, the Custodian is a bank meeting the requirements prescribed
in Section 26(a)(1) of the 1940 Act; and
WHEREAS, the Trust desires to retain the Custodian to act as
custodian of the cash and securities of each series of the Trust; and
WHEREAS, the Board of Trustees of the Trust has delegated to the
Custodian the responsibilities set forth in Rule 17f-5(c) under the 1940 Act
and the Custodian is willing to undertake the responsibilities and serve as the
foreign custody manager for the Trust.
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, and other good and valuable consideration, the receipt of
which is hereby acknowledged, the parties hereto, intending to be legally
bound, do hereby agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Whenever used in this Agreement, the following words and phrases shall have the
meanings set forth below unless the context otherwise requires:
1.01 "AUTHORIZED PERSON" means any Officer or person who has been designated as
such by written notice and named in EXHIBIT A and delivered to the Custodian by
the Trust, or if the Trust has notified the Custodian in writing that it has an
authorized investment manager or other agent, delivered to the Custodian by the
Trust's investment advisor or other agent. Such Officer or person shall
continue to be an Authorized Person until such time as the Custodian receives
Written Instructions from the Trust or the Trust's investment advisor or other
agent that any such person is no longer an Authorized Person.
1.02 "BOARD OF TRUSTEES" shall mean the trustees from time to time serving
under the Trust's declaration of trust, as amended from time to time.
1.03 "BOOK-ENTRY SYSTEM" shall mean a federal book-entry system as provided in
Subpart 0 of Treasury Circular No. 300. 31 CFR 306. in Subpart B of 31 CFR Part
350. or in such book-entry regulations of federal agencies as are substantially
in the form of such Subpart 0.
1.04 "BUSINESS DAY(-) shall mean any day recognized as a settlement day by The
New York Stock Exchange. Inc. and any other day for which the Trust computes
the net asset value of Shares of the Funds.
1.05 "ELIGIBLE FOREIGN CUSTODIAN" has the meaning set forth in Rule I
7f-5(a)(1). including a majority-owned or indirect subsidiary of a U.S. Bank
(as defined in Rule 17f.5). a bank holding company meeting the requirements of
an Eligible Foreign Custodian (as set forth in Rule 171-5 or by other
appropriate action of the SEC). or a foreign branch of a Bank (as defined in
Section 2(a)(5) of the 0000 Xxx) meeting the requirements of a custodian under
Section 17(f) of the 1940 Act; the term does not include any Eligible
Securities Depository.
1.06 "ELIGIBLE SECURITIES DEPOSITORY" has the meaning set forth in Rule
17f-7(b)(1) under the 0000 Xxx.
1.07 "FOREIGN SECURITIES" means any investments of a Fund (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 such Fund's
transactions in such investments.
1.08 "FUND CUSTODY ACCOUNT" shall mean any of the accounts in the name of the
Trust. which is provided for in Section 3.2 below.
1.09 "IRS" shall mean the Internal Revenue Service.
1.10 "FINRA" shall mean the Financial Industry Regulatory Authority. Inc.
1.11 "OFFICER" shall mean the Chairman, President. any Vice President. any
Assistant Vice President. the Secretary. any Assistant Secretary. the Treasurer,
or any Assistant Treasurer of the Trust.
1.12 "PROPER INSTRUCTIONS" shall mean Written Instructions.
1.13 "SEC" shall mean the U.S. Securities and Exchange Commission.
1.14 "SECURITIES" shall include, without limitation, common and preferred
stocks, bonds. call options, put options, debentures, notes, bank certificates
of deposit, bankers' acceptances, mortgage-backed securities or other
obligations, and any certificates, receipts, warrants or other instruments or
documents representing rights to receive, purchase or subscribe for the same. or
evidencing or representing any other rights or interests therein, or any similar
property or assets that the Custodian or its agents have the facilities to clear
and service.
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1.15 "SECURITIES DEPOSITORY" shall mean The Depository Trust Company and any
other clearing agency registered with the SEC under Section 17A of the
Securities Exchange Act of 1934. as amended (the "1934 Act"), which acts as a
system for the central handling of Securities where all Securities of any
particular class or series of an issuer deposited within the system are treated
as fungible and may be transferred or pledged by bookkeeping entry without
physical delivery of the Securities.
1.16 "SHARES" shall mean. with respect to a Fund. the units of beneficial
interest issued by the Trust on account of the Fund.
1.17 "SUB-CUSTODIAN" shall mean and include (i) any branch of a "U.S. bank." as
that term is defined in Rule 17f-5 under the 1940 Act, and (ii) any "Eligible
Foreign Custodian" having a contract with the Custodian which the Custodian has
determined will provide reasonable care of assets of the Funds based on the
standards specified in Section 3.3 below. Such contract shall be in writing and
shall include provisions that provide: (i) for indemnification or insurance
arrangements (or any combination of the foregoing) such that the Funds will be
adequately protected against the risk of toss of assets held in accordance with
such contract; (ii) that the Foreign Securities will not be subject to any
right. charge. security interest. lien or claim of any kind in favor of the
Sub-Custodian or its creditors except a claim of payment for their safe custody
or administration, in the case of cash deposits, liens or rights in favor of
creditors of the Sub-Custodian arising under bankruptcy. insolvency, or similar
laws: (iii) that beneficial ownership for the Foreign Securities will be freely
transferable without the payment of money or value other than for safe custody
or administration: (iv) that adequate records will be maintained identifying
the assets as belonging to the Funds or as being held by a third party for the
benefit of the Funds; (v) that the Funds' independent public accountants will
be given access to those records or confirmation of the contents of those
records: and (vi) that the Funds will receive periodic reports with respect to
the safekeeping of the Funds' assets, including_ but not limited to.
notification of any transfer to or from a Fund's account or a third party
account containing assets held for the benefit of the Funds. Such contract rnay
contain, in lieu of any or all of the provisions specified in (i)-(vi) above,
such other provisions that the Custodian determines will provide, in their
entirety. the same or a greater level of care and protection for Fund assets as
the specified provisions.
1.18 "WRITTEN INSTRUCTIONS" shall mean (i) written communications actually
received by the Custodian and signed by an Authorized Person. (ii)
communications by facsimile or Internet electronic e-mail or any other such
system from one or more persons reasonably believed by the Custodian to be an
Authorized Person.
ARTICLE II.
APPOINTMENT OF CUSTODIAN
2.01 APPOINTMENT. The Trust hereby appoints the Custodian as custodian of all
Securities and cash owned by or in the possession of the Funds at any time
during the period of this Agreement, on the terms and conditions set forth in
this Agreement. and the Custodian hereby accepts such appointment and agrees to
perform the services and duties set forth in
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this Agreement. The Trust hereby delegates to the Custodian, subject to Rule
17f-5(b). the responsibilities with respect to the Funds' Foreign Securities,
and the Custodian hereby accepts such delegation as foreign custody manager
with respect to the Funds. The services and duties of the Custodian shall be
confined to those matters expressly set forth herein. and no implied duties are
assumed by or may be asserted against the Custodian hereunder.
2.03 DOCUMENTS TO BE FURNISHED. The following documents. including any
amendments thereto. will be provided contemporaneously with the execution of
the Agreement to the Custodian by the Trust:
(a) A copy of the Trust's declaration of trust, certified by the Secretary:
(b) A copy of the Trust's bylaws. certified by the Secretary:
(c) A copy of the resolution of the Board of Trustees of the Trust appointing
the Custodian_ certified by the Secretary.,
(d) A copy of the current prospectuses of the Funds (the "Prospectus"):
(e) A certification of the Chairman or the President and the Secretary of the
Trust setting forth the names and signatures of the current Officers of the
Trust and other Authorized Persons; and
(f) An executed authorization required by the Shareholder Communications Act of
1985. attached hereto as EXHIBIT F.
2.03 NOTICE OF APPOINTMENT OF TRANSFER AGENT. The Trust agrees to notify the
Custodian in writing of the appointment. termination or change in appointment of
any transfer agent of the Funds.
ARTICLE III.
CUSTODY OF CASH AND SECURITIES
3.01 SEGREGATION. All Securities AND NON-CASH property HELD BY THE Custodian
for the account of a Fund (other than Securities maintained in a Securities
Depository. Eligible Securities Depository or Book-Entry System) shall be
physically segregated from other Securities and non-cash property in the
possession of the Custodian (including the Securities and non-cash property of
the other series of the Trust. if applicable) and shall be identified as
subject to this Agreement.
3.02 FUND CUSTODY ACCOUNTS. As to each Fund. the Custodian shall open and
maintain in its trust department a custody account in the name of the Trust
coupled with the name of the Fund. subject only to draft or order of the
Custodian, in which the Custodian shall enter and carry all Securities. cash
and other assets of such Fund which are delivered to it.
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3.03 Appointment of Agents.
(a) In its discretion, the Custodian may appoint one or more Sub-Custodians to
establish and maintain arrangements with (i) Eligible Securities
Depositories or (ii) Eligible Foreign Custodians who are members of the
Sub-Custodian's network to hold Securities and cash of the Funds and 10
carry out such other provisions of this Agreement as it may determine:
provided, however, that the appointment of any such agents and maintenance
o f any Securities and cash of the Funds shall be at the Custodian's
expense and shall not relieve the Custodian of any of its obligations or
liabilities under this Agreement. The Custodian shall be liable for the
actions of any Sub-Custodians (regardless of whether assets are maintained
in the custody of a Sub-Custodian, a member of its network or an Eligible
Securities Depository) appointed by it as if such actions had been done by
the Custodian.
(b) If. after the initial appointment of Sub-Custodians by the Board of
Trustees in connection with this Agreement_ the Custodian wishes to appoint
other Sub-Custodians to hold property of the Funds. it will so notify the
Trust and make the necessary determinations as to any such new
Sub-Custodian's eligibility under Rule 171-5 under the 1940 Act.
(c) In performing its delegated responsibilities as foreign custody manager to
place or maintain a Fund's assets with a Sub-Custodian. the Custodian will
determine that the Fund's assets will be subject to reasonable care. based
on the standards applicable to custodians in the country in which the
Fund's assets will be held by that Sub-Custodian. after considering all
factors relevant to safekeeping of such assets, including, without
limitation the factors specified in Rule 17f-5(c)(1).
(d) The agreement between the Custodian and each Sub-Custodian acting
hereunder shall contain the required provisions set forth in Rule
17f-5(c)(2) under the 1940 Act.
(e) At the end of each calendar quarter. the Custodian shall provide written
reports notifying the Board of Trustees of the withdrawal or placement of
the Securities and cash of each Fund with a Sub-Custodian and of any
material changes in the Fund's arrangements. Such reports shall include an
analysis of the custody risks associated with maintaining assets with any
Eligible Securities Depositories. The Custodian shall promptly take such
steps as may be required to withdraw assets of a Fund from any
Sub-Custodian arrangement that has ceased to meet the requirements of Rule
17f-5 or Rule 17f-7 under the 1940 Act, as applicable.
(f) With respect to its responsibilities under this Section 3.3, the Custodian
hereby warrants to the Trust that it agrees to exercise reasonable care,
prudence and diligence such as a person having responsibility for the
safekeeping of property of the Funds. The Custodian further warrants that
the Funds' assets will be subject to reasonable care if maintained with a
Sub-Custodian, after considering all factors relevant to the safekeeping of
such assets, including, without limitation: (I) the Sub-Custodian's
practices. procedures, and internal controls for certificated securities
(if applicable). its method of keeping custodial
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records. and its security and data protection practices: (ii) whether the
Sub-Custodian has the requisite financial strength to provide reasonable
care for Fund assets; (iii) the Sub- Custodian's general reputation and
standing and. in the case of a Securities Depository. the Securities
Depository's operating history and number of participants: and (iv) whether
the Funds will have jurisdiction over and be able to enforce judgments
against the Sub- Custodian, such as by virtue of the existence of any
offices of the Sub-Custodian in the United States or the Sub-Custodian's
consent to service of process in the United States.
(g) The Custodian shall establish a system or ensure that its Sub-Custodian
has established a system to monitor on a continuing basis (i) the
appropriateness of maintaining the Funds' assets with a Sub-Custodian or
Eligible Foreign Custodians who are members of a Sub- Custodian's network:
(ii) the performance of the contract governing the Funds' arrangements with
such Sub-Custodian or Eligible Foreign Custodian's members of a
Sub-Custodian's network: and (iii) the custody risks of maintaining assets
with an Eligible Securities Depository. The Custodian must promptly
notify the Funds or their investment advisers of any material change in
these risks.
(h) The Custodian shall use commercially reasonable efforts to collect all
income and other payments with respect to Foreign Securities to which each
Fund shall be entitled and shall credit such income. as collected_ to the
Trust. In the event that extraordinary measures are required to collect
such income. the Trust and Custodian shall consult as to the measures and
as to the compensation and expenses of.the Custodian relating to such
measures.
3.04 DELIVERY OF ASSETS TO CUSTODIAN. The Trust shall deliver, or cause to be
delivered. to the Custodian all of the Funds' Securities. cash and other
investment assets. including (i) all payments of income. payments of principal
and capital distributions received by the Funds with respect to such Securities.
cash or other assets owned by the Funds at any time during the period of this
Agreement. and (ii) all cash received by the Fund for the issuance of Shares.
The Custodian shall not be responsible for such Securities. cash or other assets
until actually received by it.
3.05 SECURITIES DEPOSITORIES AND BOOK-ENTRY SYSTEMS. The Custodian may deposit
and/or maintain Securities of each Fund in a Securities Depository or in a
Book-Entry System. subject to the following provisions:
(a) The Custodian. on an on-going basis. shall deposit in a Securities
Depository or Book- Entry System all Securities eligible for deposit
therein and shall make use of such Securities Depository or Book-Entry
System to the extent possible and practical in connection with its
performance hereunder. including. without limitation, in connection with
settlements of purchases and sales of Securities. loans of Securities, and
deliveries and returns of collateral consisting of Securities.
(b) Securities of the Funds kept in a Book-Entry System or Securities
Depository shall be kept in an account (-Depository Account") []f the
Custodian in such Book-Entry System or Securities Depository which includes
only assets held by the Custodian as a fiduciary, custodian or otherwise
for customers.
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(c) The records of the Custodian with respect to Securities of each Fund
maintained in a Book-Entry System or Securities Depository shall, by
book-entry, identify such Securities as belonging to the Fund.
(d) If Securities purchased by a Fund are to be held in a Book-Entry System or
Securities Depository. the Custodian shall pay for such Securities upon (1)
receipt of advice from the Book-Entry System or Securities Depository that
such Securities have been transferred to the Depository Account. and (ii)
the making of an entry on the records of the Custodian to reflect such
payment and transfer for the account of the Fund. If Securities sold by the
Fund are held in a Book-Entry System or Securities Depository. the
Custodian shall transfer such Securities upon (i) receipt of advice from
the Book-Entry System or Securities Depository that payment for such
Securities has been transferred to the Depository Account. and (ii) the
making of an entry on the records of the Custodian to reflect such transfer
and payment for the account of the Fund.
(e) The Custodian shall provide the Trust with copies of any report (obtained
by the Custodian (from a Book-Entry System or Securities Depository in
which Securities of the Funds are kept) on the internal accounting controls
and procedures for safeguarding Securities deposited in such Book-Entry
System or Securities Depository.
(f) Notwithstanding anything to the contrary in this Agreement. the Custodian
shall be liable to the Trust for any loss or damage to the Funds resulting
from (i) the use of a Book-Entry System or Securities Depository by reason
of any negligence or willful misconduct on the part of the Custodian or any
Sub-Custodian. or (ii) failure of the Custodian or any Sub-Custodian to
enforce effectively such rights as it may have against a Book-Entry System
or Securities Depository. At its election. the Trust shall be subrogated to
the rights of the Custodian with respect to any claim against a Book-Entry
System or Securities Depository or any other person from any loss or damage
to the Funds arising from the use of such Book-Entry System or Securities
Depository. if and to the extent that the Funds have not been made whole
for any such loss or damage.
(g) With respect to its responsibilities under this Section 3.05 and pursuant
to Rule 171-4 under the 1940 Act, the Custodian hereby warrants to the
Trust that it agrees to (i) exercise due care in accordance with reasonable
commercial standards in discharging its duty as a securities intermediary
to obtain and thereafter maintain such assets. ( ii) provide, promptly upon
request by the Trust. such reports as are available concerning the
Custodian's internal accounting controls and financial strength. and (iii)
require any Sub-Custodian to exercise due care in accordance with
reasonable commercial standards in discharging its duty as a securities
intermediary to obtain and thereafter maintain assets corresponding to the
security entitlements of its entitlement holders.
3.06 DISBURSEMENT OF MONEYS FROM FUND CUSTODY ACCOUNT. Upon receipt of Proper
Instructions, the Custodian shall disburse moneys from a Fund's Custody Account
but only in the following cases:
(a) For the purchase of Securities for the Fund but only in accordance with
Section 4.01 of this Agreement and only (1) in the case of Securities
(other than options on Securities.
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futures contracts and options on futures contracts), against the delivery
to the Custodian (or any Sub-Custodian) of such Securities registered as
provided in Section 3.09 below or in proper form for transfer, or if the
purchase of such Securities is effected through a Book-Entry System or
Securities Depository, in accordance with the conditions set forth in
Section 3.05 above; (ii) in the case of options on Securities, against
delivery to the Custodian (or any Sub-Custodian) of such receipts as are
required by the customs prevailing among dealers in such options: (iii) in
the case of futures contracts and options on futures contracts. against
delivery to the Custodian (or any Sub-Custodian) of evidence of title
thereto in favor of the Fund or any nominee referred to in Section 3.09
below: and (iv) in the case of repurchase or reverse repurchase agreements
entered into between the Trust and a bank which is a member of the Federal
Reserve System or between the Trust and a primary dealer in U.S. Government
securities, against delivery of the purchased Securities either in
certificate form or through an entry crediting the Custodian's account at a
Book-Entry System or Securities Depository with such Securities:
(b) In connection with the conversion, exchange or surrender. as set forth in
Section 3.07(f) below, of Securities owned by the Fund:
(c) For the payment of any dividends or capital gain distributions declared by
the Fund:
(d) In payment of the redemption price of Shares as provided in Section 5.01
below;
(e) For the payment of any expense or liability incurred by the Fund,
including, but not limited to, the following payments for the account of
the Fund: interest; taxes; administration, investment advisory, accounting,
auditing, transfer agent, custodian, trustee and legal fees; and other
operating expenses of the Fund: in all cases. whether or not such expenses
are to be in whole or in part capitalized or treated as deferred expenses;
(f) For transfer in accordance with the provisions of any agreement among the
Trust, the Custodian and a broker-dealer registered under the 1934 Act and
a member of FINRA. relating to compliance with rules of the Options
Clearing Corporation and of any registered national securities exchange (or
of any similar organization or organizations) regarding escrow or other
arrangements in connection with transactions by the Fund:
(g) For transfer in accordance with the provisions of any agreement among the
Trust. the Custodian and a futures commission merchant registered under the
Commodity Exchange Act, relating to compliance with the rules of the
Commodity Futures Trading Commission and/or any contract market (or any
similar organization or organizations) regarding account deposits in
connection with transactions by the Fund;
(h) For the funding of any uncertificated time deposit or other
interest-bearing account with any banking institution (including the
Custodian), which deposit or account has a term of one year or less; and
(i) For any other proper purpose, but only upon receipt of Proper
Instructions, specifying the amount and purpose of such payment, declaring
such purpose to be a proper corporate purpose, and naming the person or
persons to whom such payment is to be made.
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3.07 DELIVERY OF SECURITIES FROM FUND CUSTODY ACCOUNT. Upon receipt of Proper
Instructions, the Custodian shall release and deliver, or cause the
Sub-Custodian to release and deliver, Securities from the Fund Custody Account
but only in the following cases:
(a) Upon the sale of Securities for the account of the Fund but only against
receipt of payment therefor in cash. by certified or cashiers check or bank
credit:
(b) In the case of a sale effected through a Book-Entry System or Securities
Depository, in accordance with the provisions of Section 3.05 above:
(c) To an offeror's depository agent in connection with tender or other
similar offers for Securities of the Fund; provided that. in any such case.
the cash or other consideration is to be delivered to the Custodian:
(d) To the issuer thereof or its agent (i) for transfer into the name of the
Fund, the Custodian or any Sub-Custodian, or any nominee or nominees of any
of the foregoing, or (ii) for exchange for a different number of
certificates or other evidence representing the same aggregate face amount
or number of units; provided that, in any such case. the new Securities are
to be delivered to the Custodian:
(e) To the broker selling the Securities. for examination in accordance with
the ''street delivery" custom:
(f) For exchange or conversion pursuant to any plan of merger, consolidation,
recapitalization, reorganization or readjustment of the issuer of such
Securities, or pursuant to provisions for conversion contained in such
Securities, or pursuant to any deposit agreement, including surrender or
receipt of underlying Securities in connection with the issuance or
cancellation of depository receipts; provided that, in any such case. the
new Securities and cash, if any, are to be delivered to the Custodian:
(g) Upon receipt of payment therefor pursuant to any repurchase or reverse
repurchase agreement entered into by the Fund:
(h) In the case of warrants, rights or similar Securities, upon the exercise
thereof, provided that, in any such case, the new Securities and cash, if
any, are to be delivered to the Custodian:
(i) For delivery in connection with any loans of Securities of the Fund, but
only against receipt of such collateral as the Trust shall have specified
to the Custodian in Proper Instructions:
(j) For delivery as security in connection with any borrowings by the Fund
requiring a pledge of assets by the Trust, but only against receipt by the
Custodian of the amounts borrowed:
(k) Pursuant to any authorized plan of liquidation, reorganization, merger,
consolidation or recapitalization of the Trust:
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(1) For delivery in accordance with the provisions of any agreement among the
Trust, the Custodian and a broker-dealer registered under the 1934 Act and
a member of FINRA. relating to compliance with the rules of the Options
Clearing Corporation and of any registered national securities exchange (or
of any similar organization or organizations) regarding escrow or other
arrangements in connection with transactions by the Fund;
(m) For delivery in accordance with the provisions of any agreement among the
Trust, the Custodian and a futures commission merchant registered under the
Commodity Exchange Act, relating to compliance with the rules of the
Commodity Futures Trading Commission and/or any contract market (or any
similar organization or organizations) regarding account deposits in
connection with transactions by the Fund:
(n) For any other proper corporate purpose, but only upon receipt of Proper
Instructions. specifying the Securities to be delivered, setting forth the
purpose for which such delivery is to be made, declaring such purpose to be
a proper corporate purpose, and naming the person or persons to whom
delivery of such Securities shall be made: or
(o) To brokers, clearing banks or other clearing agents for examination or
trade execution in accordance with market custom; provided that in any such
case the Custodian shall have no responsibility or liability for any loss
arising from the delivery of such securities prior to receiving payment for
such securities except as may arise from the Custodian's own negligence or
willful misconduct.
3.08 ACTIONS NOT REQUIRING PROPER INSTRUCTIONS. Unless otherwise instructed by
the Trust, the Custodian shall with respect to all Securities held for a Fund:
(a) Subject to Section 9.04 below, collect on a timely basis all income and
other payments to which the Fund is entitled either by law or pursuant to
custom in the securities business;
(b) Present for payment and, subject to Section 9.04 below, collect on a
timely basis the amount payable upon all Securities which may mature or be
called, redeemed, or retired, or otherwise become payable:
(c) Endorse for collection, in the name of the Fund, checks, drafts and other
negotiable instruments;
(d) Surrender interim receipts or Securities in temporary- form for Securities
in definitive form;
(e) Execute, as custodian. any necessary declarations or certificates of
ownership under the federal income tax laws or the laws or regulations of
any other taxing authority now or hereafter in effect, and prepare and
submit reports to the IRS and the Trust at such time, in such manner and
containing such information as is prescribed by the IRS:
(f) Hold for the Fund, either directly or, with respect to Securities held
therein, through a Book- Entry System or Securities Depository, all rights
and similar Securities issued with respect to Securities of the Fund; and
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(g) In general, and except as otherwise directed in Proper Instructions,
attend to all non-discretionary details in connection with the sale,
exchange, substitution, purchase, transfer and other dealings with
Securities and other assets of the Fund.
3.09 REGISTRATION AND TRANSFER OF SECURITIES. All Securities held for each Fund
that are issued or issuable only in bearer form shall be held by the Custodian
in that form, provided that any such Securities shall be held in a Book-Entry
System if eligible therefor. All other Securities held for the Fund may be
registered in the name of the Fund, the Custodian. a Sub-Custodian or any
nominee thereof or in the name of a Book-Entry System, Securities Depository or
any nominee of either thereof. The records of the Custodian with respect to
foreign securities of the Fund that are maintained with a Sub-Custodian in an
account that is identified as belonging to the Custodian for the benefit of its
customers shall identify those securities as belonging to the Fund. The Trust
shall furnish to the Custodian appropriate instruments to enable the Custodian
to hold or deliver in proper form for transfer, or to register in the name of
any of the nominees referred to above or in the name of a Book-Entry System or
Securities Depository, any Securities registered in the name of the Fund.
3.10 RECORDS.
(a) The Custodian shall maintain complete and accurate records with respect to
Securities. cash or other property held for each Fund. including (i)
journals or other records of original entry containing an itemized daily
record in detail of all receipts and deliveries of Securities and all
receipts and disbursements of cash: (ii) ledgers (or other records)
reflecting (A) Securities in transfer, (B) Securities in physical
possession, (C) monies and Securities borrowed and monies and Securities
loaned (together with a record of the collateral therefor and substitutions
of such collateral), (D) dividends arid interest received, and (E)
dividends receivable and interest receivable: (iii) canceled checks and
bank records related thereto: and (iv) all records relating to its
activities and obligations under this Agreement. The Custodian shall keep
such other books and records of the Funds as the Trust shall reasonably
request, or as may be required by the 1940 Act. including, but not limited
to. Section 31 of the 1940 Act and Rule 31a-2 promulgated thereunder.
(b) All such books and records maintained by the Custodian shall (i) be
maintained in a form acceptable to the Trust and in compliance with the
rules and regulations of the SEC. (ii) be the property of the Trust and at
all times during the regular business hours of the Custodian be made
available upon request for inspection by duly authorized officers,
employees or agents of the Trust and employees or agents of the SEC, and
(iii) if required to be maintained by Rule 31a-1 under the 1940 Act, be
preserved for the periods prescribed in Rules 31a-1 and 31a-2 under the
1940 Act.
3.11 FUND REPORTS BY CUSTODIAN. The Custodian shall furnish the Trust with a
daily activity statement and a summary of all transfers to or from each Fund
Custody Account on the day following such transfers. At least monthly, the
Custodian shall furnish the Trust with a detailed statement of the Securities
and moneys held by the Custodian and the Sub-Custodians for each Fund under this
Agreement.
11
3.12 OTHER REPORTS BY CUSTODIAN. As the Trust may reasonably request from time
to time, the Custodian shall provide the Trust with reports on the internal
accounting controls and procedures for safeguarding Securities which are
employed by the Custodian or any Sub-Custodian.
3.13 PROXIES AND OTHER MATERIALS. The Custodian shall cause all proxies
relating to Securities which are not registered in the name of a Fund to be
promptly executed by the registered holder of such Securities. without
indication of the manner in which such proxies are to he voted, and shall
promptly deliver to the Trust such proxies, all proxy soliciting materials and
all notices relating to such Securities. With respect to the foreign
Securities, the Custodian will use reasonable commercial efforts to facilitate
the exercise of voting and other shareholder rights, subject to the laws,
regulations and practical constraints that may exist in the country where such
securities are issued. The Trust acknowledges that local conditions, including
lack of regulation, onerous procedural obligations, lack of notice and other
factors may have the effect of severely limiting the ability of the Trust to
exercise shareholder rights.
3.14 INFORMATION ON CORPORATE ACTIONS. The Custodian shall promptly deliver to
the Trust all information received by the Custodian and pertaining to
Securities being held by the Funds with respect to optional tender or exchange
offers, calls for redemption or purchase, or expiration of rights. If the Trust
desires to take action with respect to any tender offer, exchange offer or
other similar transaction, the Trust shall notify the Custodian at least three
Business Days prior to the date on which the Custodian is to take such action.
The Trust will provide or cause to be provided to the Custodian all relevant
information for any Security which has unique put/option provisions at least
three Business Days prior to the beginning date of the tender period.
ARTICLE IV.
PURCHASE AND SALE OF INVESTMENTS OF THE FUND
4.01 PURCHASE OF SECURITIES. Promptly upon each purchase of Securities for a
Fund.
Written Instructions shall be delivered to the Custodian, specifying (i) the
name of the issuer or writer of such Securities. and the title or other
description thereof, (ii) the number of shares, principal amount (and accrued
interest, if any) or other units purchased, (iii) the date of purchase and
settlement, (iv) the purchase price per unit, (v) the total amount payable upon
such purchase, and (vi) the name of the person to whom such amount is payable.
The Custodian shall upon receipt of such Securities purchased by the Fund pay
out of the moneys held for the account of the Fund the total amount specified
in such Written Instructions to the person named therein. The Custodian shall
not be under any obligation to pay out moneys to cover the cost of a purchase
of Securities for the Fund, if in the Fund Custody Account there is
insufficient cash available to the Fund for which such purchase was made.
4.02 LIABILITY FOR PAYMENT IN ADVANCE OF RECEIPT OF SECURITIES PURCHASED. In
any and every case where payment for the purchase of Securities for a Fund is
made by the Custodian in advance of receipt of the Securities purchased and in
the absence of specified Written Instructions to so pay in advance, the
Custodian shall be liable to the Fund for such payment.
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4.03 SALE OF SECURITIES. Promptly upon each sale of Securities by a Fund.
Written Instructions shall be delivered to the Custodian, specifying (i) the
name of the issuer or writer of such Securities, and the title or other
description thereof, (ii) the number of shares, principal amount (and accrued
interest, if any), or other units sold, (iii) the date of sale and settlement,
(iv) the sale price per unit, (v) the total amount payable upon such sale, and
(vi) the person to whom such Securities are to be delivered. Upon receipt of
the total amount payable to the Fund as specified in such Written Instructions,
the Custodian shall deliver such Securities to the person specified in such
Written Instructions. Subject to the foregoing, the Custodian may accept
payment in such form as shall be satisfactory to it, and may deliver Securities
and arrange for payment in accordance with the customs prevailing among dealers
in Securities.
4.04 DELIVERY OF SECURITIES SOLD. Notwithstanding Section 4.03 above or any
other provision of this Agreement, the Custodian, upon receipt of Proper
Instructions to deliver Securities against payment, shall be entitled, if in
accordance with generally accepted market practice, to deliver such Securities
prior to actual receipt of final payment therefor. In any such case, the Fund
shall bear the risk that final payment for such Securities may not be made or
that such Securities may be returned or otherwise held or disposed of by or
through the person to whom they were delivered, and the Custodian shall have no
liability for any for the foregoing.
4.05 PAYMENT FOR SECURITIES SOLD. In its sole discretion and from time to time,
the Custodian may credit a Fund Custody Account, prior to actual receipt of
final payment thereof with (i) proceeds from the sale of Securities which it
has been instructed to deliver against payment, (ii) proceeds from the
redemption of Securities or other assets of the Fund, and (iii) income from
cash, Securities or other assets of the Fund. Any such credit shall be
conditional upon actual receipt by Custodian of final payment and may be
reversed if final payment is not actually received in full. The Custodian may,
in its sole discretion and from time to time, permit the Fund to use funds so
credited to the Fund Custody Account in anticipation of actual receipt of final
payment. Any such funds shall be repayable immediately upon demand made by the
Custodian at any time prior to the actual receipt of all final payments in
anticipation of which funds were credited to the Fund Custody Account.
4.06 ADVANCES BY CUSTODIAN FOR SETTLEMENT. The Custodian may, in its sole
discretion and from time to time, advance funds to the Trust to facilitate the
settlement of a Fund's transactions in the Fund Custody Account. Any such
advance shall be repayable immediately upon demand made by Custodian.
ARTICLE V.
REDEMPTION OF FUND SHARES
5.01 TRANSFER OF FUNDS. From such funds as may be available for the purpose in
the relevant Fund Custody Account, and upon receipt of Proper Instructions
specifying that the funds are required to redeem Shares of a Fund, the
Custodian shall wire each amount specified in such Proper Instructions to or
through such bank or broker-dealer as the Trust may designate.
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5.02 NO DUTY REGARDING PAYING BANKS. Once the Custodian has wired amounts to a
bank or broker-dealer pursuant to Section 5.01 above, the Custodian shall not
be under any obligation to effect any further payment or distribution by such
bank or broker-dealer.
ARTICLE VI.
SEGREGATED ACCOUNTS
Upon receipt of Proper Instructions, the Custodian shall establish and maintain
a segregated account or accounts for and on behalf of each Fund, into which
account or accounts may be transferred cash and/or Securities, including
Securities maintained in a Depository Account:
(a) in accordance with the provisions of any agreement among the Trust,
the Custodian and a broker-dealer registered under the 1934 Act AND A
MEMBER of FINRA (or any futures commission merchant registered under
the Commodity Exchange Act), relating to compliance with the rules of
the Options Clearing Corporation and of any registered national
securities exchange (or the Commodity Futures Trading Commission or
any registered contract market). or of any similar organization or
organizations, regarding escrow or other arrangements in connection
with transactions by the Fund:
(b) for purposes of segregating cash or Securities in connection with
securities options purchased or written by the Fund or in connection
with financial futures contracts (or options thereon) purchased or
sold by the Fund:
(c) which constitute collateral for loans of Securities made by the Fund:
(d) for purposes of compliance by the Fund with requirements under the
1940 Act for the maintenance of segregated accounts by registered
investment companies in connection with reverse repurchase agreements
and when-issued, delayed delivery and firm commitment transactions:
and
(e) for other proper corporate purposes. but only upon receipt of Proper
Instructions, setting forth the purpose or purposes of such segregated
account and declaring such purposes to be proper corporate purposes.
Each segregated account established tinder this Article VI shall be established
and maintained for the Fund only. All Proper Instructions relating to a
segregated account shall specify the Fund.
ARTICLE VII.
COMPENSATION OF CUSTODIAN
7.01 COMPENSATION. The Custodian shall be compensated for providing the
services set forth in this Agreement in accordance with the fee schedule set
forth on the Exhibits attached hereto (as amended from time to time). The
Custodian shall also be compensated for such out-of-pocket expenses (e.g.
telecommunication charges. postage and delivery charges, and reproduction
charges) as are reasonably incurred by the Custodian in performing its duties
hereunder. The Trust shall pay all such fees and reimbursable expenses
14
within 30 calendar days following receipt of the billing notice, except for any
fee or expense subject to a good faith dispute. The Trust shall notify the
Custodian in writing within 30 calendar days following receipt of each invoice
if the Trust is disputing any amounts in good faith. The Trust shall pay such
disputed amounts within 10 calendar days of the day on which the parties agree
to the amount to be paid. With the exception of any fee or expense the Trust is
disputing in good faith as set forth above, unpaid invoices shall accrue a
finance charge of 1 1/2% per month after the due date. Notwithstanding anything
to the contrary, amounts owed by the Trust to the Custodian shall only be paid
out of the assets and property of the particular Fund involved.
7.02 OVERDRAFTS. The Trust is responsible for maintaining an appropriate level
of short term cash investments to accommodate cash outflows. The 'Trust may
obtain a formal line of credit for potential overdrafts of its custody account.
In the event of an overdraft or in the event the line of credit is insufficient
to cover an overdraft, the overdraft amount or the overdraft amount that
exceeds the line of credit will be charged in accordance with the fee schedule
set forth on the Exhibits attached hereto (as amended from time to time)
ARTICLE VIII.
REPRESENTATIONS AND WARRANTIES
8.0I REPRESENTATIONS AND WARRANTIES OF THE TRUST. The Trust hereby represents
and warrants to the Custodian, which representations and warranties shall be
deemed to be continuing throughout the term of this Agreement, that:
(a) It is duly organized and existing under the laws of the jurisdiction of
its organization, with full power to carry on its business as now
conducted, to enter into this Agreement and to perform its obligations
hereunder:
(h) This Agreement has been duly authorized, executed and delivered by the
Trust in accordance with all requisite action and constitutes a valid and
legally binding obligation of the Trust, enforceable in accordance with its
terms, subject to bankruptcy, insolvency, reorganization, moratorium and
other laws of general application affecting the rights and remedies of
creditors and secured parties: and
(c) It is conducting its business in compliance in all material respects with
all applicable laws and regulations, both state and federal, and has
obtained all regulatory approvals necessary to carry on its business as now
conducted: there is no statute, rule, regulation, order or judgment binding
on it and no provision of its charter, bylaws or any contract binding it or
affecting its property which would prohibit its execution or performance of
this Agreement.
8.02 REPRESENTATIONS AND WARRANTIES OF THE CUSTODIAN. The Custodian hereby
represents and warrants to the Trust, which representations and warranties shall
be deemed to be continuing throughout the term of this Agreement, that:
15
(a) It is duty organized and existing under the laws of the jurisdiction of
its organization, with full power to carry on its business as now
conducted. to enter into this Agreement and to perform its obligations
hereunder:
(b) It is a U.S. Bank as defined in section (a)(7) of Rule 17f-5.
(c) This Agreement has been duly authorized, executed and delivered by the
Custodian in accordance with all requisite action and constitutes a valid
and legally binding obligation of the Custodian, enforceable in accordance
with its terms, subject to bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting the rights and
remedies of creditors and secured parties: and
(d) It is conducting its business in compliance in all material respects with
all applicable laws and regulations, both state and federal, and has
obtained all regulatory approvals necessary to carry on its business as now
conducted: there is no statute, rule, regulation, order or judgment binding
on it and no provision of its charter, bylaws or any contract binding it or
affecting its property which would prohibit its execution or performance of
this Agreement.
ARTICLE IX.
CONCERNING THE CUSTODIAN
9.01 STANDARD OF CARE. The Custodian shall exercise reasonable care in the
performance of its duties under this Agreement. The Custodian shall not be
liable for any error of judgment or mistake of law or for any loss suffered by
the Trust in connection with its duties under this Agreement, except a loss
arising out of or relating to the Custodian's (or a Sub-Custodian's) refusal or
failure to comply with the terms of this Agreement (or any sub-custody
agreement) or from its (or a Sub-Custodian's) bad faith, negligence or willful
misconduct in the performance of its duties under this Agreement (or any
sub-custody agreement). The Custodian shall be entitled to rely on and may act
upon advice of counsel on all matters, and shall be without liability for any
action reasonably taken or omitted pursuant to such advice. The Custodian shall
promptly notify the Trust of any action taken or omitted by the Custodian
pursuant to advice of counsel.
9.02 ACTUAL COLLECTION REQUIRED. The Custodian shall not be liable for, or
considered to be the custodian of, any cash belonging to a Fund or any money
represented by a check, draft or other instrument for the payment of money,
until the Custodian or its agents actually receive such cash or collect on such
instrument.
9.03 NO RESPONSIBILITY FOR TITLE. ETC. So long as and to the extent that it is
in the exercise of reasonable care, the Custodian shall not be responsible for
the title, validity or genuineness of any property or evidence of title thereto
received or delivered by it pursuant to this Agreement.
9.04 LIMITATION ON DUTY TO COLLECT. Custodian shall not be required to enforce
collection, by legal means or otherwise, of any money or property due and
payable with
16
respect to Securities held for a Fund if such Securities are in default or
payment is not made after due demand or presentation.
9.05 RELIANCE UPON DOCUMENTS AND INSTRUCTIONS. The Custodian shall be entitled
to rely upon any certificate, notice or other instrument in writing received by
it and reasonably believed by it to be genuine. The Custodian shall be entitled
to rely upon any Written Instructions actually received by it pursuant to this
Agreement.
9.06 COOPERATION. The Custodian shall cooperate with and supply necessary
information to the entity or entities appointed by the Trust to keep the books
of account of the Funds and/or compute the value of the assets of the Funds.
The Custodian shall take all such reasonable actions as the Trust may from time
to time request to enable the Trust to obtain, from year to year. favorable
opinions from the Trust's independent accountants with respect to the
Custodian's activities hereunder in connection with (i) the preparation of the
Trust's reports on Form N-I A and Form N-SAR and any other reports required by
the SEC, and (ii) the fulfillment by the Trust of any other requirements of the
SEC.
ARTICLE X.
INDEMNIFICATION
10.01 INDEMNIFICATION BY TRUST. The Trust shall indemnify and hold harmless the
Custodian. any Sub-Custodian and any nominee thereof (each, an "Indemnified
Party" and collectively. the "Indemnified Parties") from and against any and
all claims, demands, losses, expenses and liabilities of any and every nature
(including reasonable attorneys' fees) that an Indemnified Party may sustain or
incur or that may be asserted against an Indemnified Party by any person
arising directly or indirectly (i) from the fact that Securities are registered
in the name of any such nominee, (ii) from any action taken or omitted to be
taken by the Custodian or such Sub-Custodian (a) at the request or direction of
or in reliance on the advice of the Trust. or (b) upon Proper Instructions, or
(iii) from the performance of its obligations under this Agreement or any
sub-custody agreement. provided that neither the Custodian nor any such
Sub-Custodian shall be indemnified and held harmless from and against any such
claim, demand, loss, expense or liability arising out of or relating to its
refusal or failure to comply with the terms of this Agreement (or any
sub-custody agreement), or from its bad faith, negligence or willful misconduct
in the performance of its duties under this Agreement (or any sub-custody
agreement). This indemnity shall be a continuing obligation of the Trust, its
successors and assigns, notwithstanding the termination of this Agreement. As
used in this paragraph, the terms "Custodian" and "Sub-Custodian" shall include
their respective directors, officers and employees.
10.02 INDEMNIFICATION BY CUSTODIAN. The Custodian shall indemnify and hold
harmless the Trust from and against any and all claims, demands, losses,
expenses, and liabilities of any and every nature (including reasonable
attorneys' fees) that the Trust may sustain or incur or that may be asserted
against the Trust by any person arising directly or indirectly out of any
action taken or omitted to be taken by an Indemnified Party as a result of the
Indemnified Party's refusal or failure to comply with the terms of this
Agreement (or any sub-custody agreement), or from its bad faith, negligence or
willful misconduct in the
17
performance of its duties under this Agreement (or any sub-custody agreement).
This indemnity shall be a continuing obligation of the Custodian, its
successors and assigns, notwithstanding the termination of this Agreement. As
used in this paragraph, the term "Trust" shall include the Trust's trustees,
officers and employees.
10.03 SECURITY. If the Custodian advances cash or Securities to a Fund for any
purpose, either at the Trust's request or as otherwise contemplated in this
Agreement, or in the event that the Custodian or its nominee incurs, in
connection with its performance under this Agreement, any claim, demand, loss,
expense or liability (including reasonable attorneys' fees) (except such as may
arise from its or its nominee's bad faith, negligence or willful misconduct),
then, in any such event, any property at any time held for the account of the
Fund shall be security therefor, and should the Fund fail promptly to repay or
indemnify the Custodian, the Custodian shall he entitled to utilize available
cash of such Fund and to dispose of other assets of such Fund to the extent
necessary to obtain reimbursement or indemnification:
10.04 Miscellaneous.
(a) Neither party to this Agreement shall be liable to the other party for
consequential, special or punitive damages under any provision of this
Agreement.
(b) The indemnity provisions o f this Article shall indefinitely survive the
termination and/or assignment of this Agreement.
(c) In order that the indemnification provisions contained in this Article X
shall apply. it is understood that if in any case the indemnitor may be
asked to indemnify or hold the indemnitee harmless, the indemnitor shall be
fully and promptly advised of all pertinent facts concerning the situation
in question, and it is further understood that the indemnitee will use all
reasonable care to notify the indemnitor promptly concerning any situation
that presents or appears likely to present the probability of a claim for
indemnification. The indemnitor shall have the option to defend the
indemnitee against any claim that may be the subject of this
indemnification. In the event that the indemnitor so elects, it will so
notify the indemnitee and thereupon the indemnitor shall take over complete
defense of the claim, and the indemnitee shall in such situation initiate
no further legal or other expenses for which it shall seek indemnification
under this Article X. The indemnitee shall in no case confess any claim or
make any compromise in any case in which the indemnitor will be asked to
indemnify the indemnitee except with the indemnitor's prior written
consent.
ARTICLE XI.
FORCE MAJEURE
Neither the Custodian nor the Trust shall be liable for any failure
or delay in performance of its obligations under this Agreement arising out of
or caused, directly or indirectly, by circumstances beyond its reasonable
control, including, without limitation, acts of God; earthquakes; fires;
floods; wars; civil or military disturbances; acts of terrorism; sabotage;
strikes; epidemics; riots; power failures; computer failure and any such
circumstances beyond its
18
reasonable control as may cause interruption, loss or malfunction of utility,
transportation, computer (hardware or software) or telephone communication
service; accidents; labor disputes; acts of civil or military authority;
governmental actions; or inability to obtain labor, material. equipment or
transportation; provided, however, that in the event of a failure or delay, the
Custodian (i) shall not discriminate against the Funds in favor of any other
customer of the Custodian in making computer time and personnel available to
input or process the transactions contemplated by this Agreement, and (ii)
shall use its best efforts to ameliorate the effects of any such failure or
delay.
ARTICLE XII.
PROPRIETARY AND CONFIDENTIAL INFORMATION
12.01 The Custodian agrees on behalf of itself and its directors, officers, and
employees to treat confidentially and as proprietary information of the Trust,
all records and other information relative to the Trust and prior, present, or
potential shareholders of the Trust (and clients of said shareholders), and not
to use such records and information for any purpose other than the performance
of its responsibilities and duties hereunder, except (i) after prior
notification to and approval in writing by the Trust, which approval shall not
he unreasonably withheld and may not be withheld where the Custodian may be
exposed to civil or criminal contempt proceedings for failure to comply, (ii)
when requested to divulge such information by duly constituted authorities
although the Custodian will promptly report such disclosure to the Trust if
disclosure is permitted by applicable law and regulation, or (iii) when so
requested by the Trust. Records and other information which have become known
to the public through no wrongful act of the Custodian or any of its employees,
agents or representatives, and information that was already in the possession
of the Custodian prior to receipt thereof from the Trust or its agent, shall
not be subject to this paragraph.
12.02 Further, the Custodian will adhere to the privacy policies adopted by the
Trust pursuant to Title V of the Xxxxx-Xxxxx-Xxxxxx Act, as may be modified
from time to time. In this regard, the Custodian shall have in place and
maintain physical, electronic and procedural safeguards reasonably designed to
protect the security, confidentiality and integrity of, and to prevent
unauthorized access to or use of, records and information relating to the Trust
and its shareholders.
ARTICLE XIII.
EFFECTIVE PERIOD; TERMINATION
13.01 EFFECTIVE PERIOD. This Agreement shall become effective as of the date
first written above.
13.02 TERMINATION. This Agreement may be terminated by either party upon giving
90 days prior written notice to the other party or such shorter period as is
mutually agreed upon by the parties. Notwithstanding the foregoing, this
Agreement may be terminated by any party upon the breach of the other party of
any material term of this Agreement if such
19
breach is not cured within 15 days of notice of such breach to the breaching
party. In addition, the Trust may, at any time, immediately terminate this
Agreement in the event of the appointment of a conservator or receiver for the
Custodian by regulatory authorities or upon the happening of a like event at
the direction of an appropriate regulatory agency or court of competent
jurisdiction.
13.03 APPOINTMENT OF SUCCESSOR CUSTODIAN. If a successor custodian shall have
been appointed by the Board of Trustees, the Custodian shall, upon receipt of a
notice of acceptance by the successor custodian, on such specified date of
termination (i) deliver directly to the successor custodian all Securities
(other than Securities held in a Rook-Entry System or Securities Depository)
and cash then owned by the Fund and held by the Custodian as custodian, and
(ii) transfer any Securities held in a Book-Entry System or Securities
Depository to an account of or for the benefit of the Fund at the successor
custodian, provided that the Trust shall have paid to the Custodian all fees,
expenses and other amounts to the payment or reimbursement of which it shall
then be entitled. In addition, the Custodian shall, at the expense of the
Trust, transfer to such successor all relevant books, records, correspondence,
and other data established or maintained by the Custodian under this Agreement
in a form reasonably acceptable to the Trust (if such form differs from the
form in which the Custodian has maintained the same, the Trust shall pay any
expenses associated with transferring the data to such form), and will
cooperate in the transfer of such duties and responsibilities, including
provision for assistance from the Custodian's personnel in the establishment of
hooks, records, and other data by such successor. Upon such delivery and
transfer, the Custodian shall be relieved of all obligations under this
Agreement, except as provided under Section 10.04(b) of this Agreement.
13.04 FAILURE TO APPOINT SUCCESSOR CUSTODIAN. If a successor custodian is not
designated by the Trust on or before the date of termination of this Agreement,
then the Custodian shall have the right to deliver to a bank or trust company
of its own selection, which bank or trust company (i) is a bank as defined in
the 1940 Act, and (ii) has aggregate capital, surplus and undivided profits as
shown on its most recent published report of not less than $25 million, all
Securities, cash and other property held by Custodian under this Agreement and
to transfer to an account of or for the Fund at such bank or trust company all
Securities of the Fund held in a Book-Entry System or Securities Depository.
Upon such delivery and transfer, such bank or trust company shall be the
successor custodian under this Agreement and the Custodian shall be relieved of
all obligations under this Agreement, except as provided under Section 10.04(b)
of this Agreement. In addition, under these circumstances, all books, records
and other data of the Trust shall he returned to the Trust.
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ARTICLE XIV.
CLASS ACTIONS
The Custodian shall use its best efforts to identify and file claims for the
Fund(s) involving any class action litigation that impacts any security the
Fund(s) may have held during the class period. The Trust agrees that the
Custodian may tile such claims on its behalf and understands that it may be
waiving and/or releasing certain rights to make claims or otherwise pursue
class action defendants who settle their claims. Further, the Trust
acknowledges that there is no guarantee these claims will result in any payment
or partial payment of potential class action proceeds and that the timing of
such payment, if any, is uncertain.
However, the Trust may instruct the Custodian to distribute class action
notices and other relevant documentation to the Fund(s) or its designee and, if
it so elects, will relieve the Custodian from any and all liability and
responsibility for filing class action claims on behalf of the Fund(s).
In the event the Fund(s) are closed, the Custodian shall only file the class
action claims upon written instructions by an authorized representative of the
closed Fund(s). Any expenses associated with such filing will be assessed
against the proceeds received of any class action settlement.
ARTICLE XV.
MISCELLANEOUS
15.01 COMPLIANCE WITH LAWS. The Trust has and retains primary responsibility
for all compliance matters relating to the Funds, including but not limited to
compliance with the 1940 Act, the Internal Revenue Code of 1986, the
Xxxxxxxx-Xxxxx Act of 2002, the USA Patriot Act of 2001 and the policies and
limitations of the Funds relating to its portfolio investments as set forth in
their Prospectuses and statements of additional information. The Custodian's
services hereunder shall not relieve the Trust of its responsibilities for
assuring such compliance or the Board of Trustee's oversight responsibility
with respect thereto.
15.02 AMENDMENT. This Agreement may not be amended or modified in any manner
except by written agreement executed by the Custodian and the Trust, and
authorized or approved by the Board of Trustees.
15.03 ASSIGNMENT. This Agreement shall extend to and be binding upon the
parties hereto and their respective successors and assigns: provided, however,
that this Agreement shall not be assignable by the Trust without the written
consent of the Custodian, or by the Custodian without the written consent of
the Trust accompanied by the authorization or approval of the Board of
Trustees.
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15.04 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Minnesota, without regard to conflicts
of law principles. To the extent that the applicable laws of the State of
Minnesota, or any of the provisions herein, conflict with the applicable
provisions of the 1940 Act, the latter shall control, and nothing herein shall
be construed in a manner inconsistent with the 1940 Act or any rule or order of
the SEC thereunder.
15.05 NO AGENCY RELATIONSHIP. Nothing herein contained shall be deemed to
authorize or empower either party to act as agent for the other party to this
Agreement, or to conduct business in the name, or for the account, of the other
party to this Agreement.
15.06 SERVICES NOT EXCLUSIVE. Nothing in this Agreement shall limit or restrict
the Custodian from providing services to other parties that are similar or
identical to some or all of the services provided hereunder.
15.07 INVALIDITY. Any provision of this Agreement which may be determined by
competent authority to be prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other
jurisdiction. In such case, the parties shall in good faith modify or
substitute such provision consistent with the original intent of the parties.
15.08 NOTICES. Any notice required or permitted to be given by either party to
the other shall he in writing and shall be deemed to have been given on the
date delivered personally or by courier service, or three days after sent by
registered or certified mail, postage prepaid, return receipt requested, or on
the date sent and confirmed received by electronic transmission to the other
party's address set forth below:
Notice to the Custodian shall be sent to:
U.S Bank, N.A.
0000 X. Xxxxxxxxxxx Xx., XX-XX-X000
Xxxxxxxxx, XX 00000
Attn: Xxx Xxxxxx
Phone: 000-000-0000
Fax: 000-000-0000
and notice to the Trust shall be sent to:
The Advisors' Inner Circle Fund II
SEI Investments
0 Xxxxxxx Xxxxxx Xxxx
Xxxx, XX 00000
15.09 MULTIPLE ORIGINALS. This Agreement may be executed on two or more
counterparts, each of which when so executed shall be deemed an original, but
such counterparts shall together constitute but one and the same instrument.
22
15.10 NO WAIVER. No failure by either party hereto to exercise, and no delay by
such party in exercising, any right hereunder shall operate as a waiver
thereof. The exercise by either party hereto of any right hereunder shall not
preclude the exercise of any other right, and the remedies provided herein are
cumulative and not exclusive of any remedies provided at law or in equity.
15.11 REFERENCES TO CUSTODIAN. The Trust shall not circulate any printed matter
which contains any reference to Custodian without the prior written approval of
Custodian, excepting printed matter contained in the Prospectus or statement of
additional information for the Fund and such other printed matter as merely
identifies Custodian as custodian for the Fund. The Trust shall submit printed
matter requiring approval to Custodian in draft form, allowing sufficient time
for review by Custodian and its counsel prior to any deadline for printing.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
he executed by a duly authorized officer on one or more counterparts as of the
date first above written.
THE ADVISORS' INNER CIRCLE FUND II U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxx
---------------------- ------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxx
Title: VP and Secretary Title: Senior Vice President
23
EXHIBIT A
AUTHORIZED PERSONS
Set forth below are the names and specimen signatures of the persons
authorized by the Trust to administer the Fund Custody Accounts.
NAME TELEPHONE/FAX NUMBER SIGNATURE
_____________________
_____________________
_____________________
_____________________
_____________________
24
EXHIBIT B TO THE CUSTODY AGREEMENT -- THE ADVISORS' INNER CIRCLE FUND II
CHAMPLAIN FUNDS
--------------------------------------------------------------------------------
DOMESTIC CUSTODY SERVICES
FEE SCHEDULE AT FEBRUARY, 2013
--------------------------------------------------------------------------------
ANNUAL FEE BASED UPON MARKET VALUE OF THE FUND*
[Redacted]
25
EXHIBIT C TO THE CUSTODY AGREEMENT -- THE ADVISORS' INNER CIRCLE FUND II
XXXXXXX HORIZON QUANTITATIVE LONG/SHORT FUND
--------------------------------------------------------------------------------
DOMESTIC CUSTODY SERVICES
FEE SCHEDULE AT FEBRUARY , 2013
--------------------------------------------------------------------------------
[REDACTED]
26
EXHIBIT D TO THE CUSTODY AGREEMENT -- THE ADVISORS' INNER CIRCLE FUND H --
STW FUNDS
--------------------------------------------------------------------------------
DOMESTIC CUSTODY SERVICES
FEE SCHEDULE AT FEBRUARY , 2013
--------------------------------------------------------------------------------
[REDACTED]
27
EXHIBIT E TO THE CUSTODY AGREEMENT -- THE ADVISORS' INNER CIRCLE FUND II
XXXXXX SELECT RESEARCH FUND
--------------------------------------------------------------------------------
DOMESTIC CUSTODY SERVICES
FEE SCHEDULE AT FEBRUARY , 2013
--------------------------------------------------------------------------------
[REDACTED]
28
EXHIBIT E TO THE CUSTODY AGREEMENT - THE ADVISORS' INNER CIRCLE FUND II -
XXXXXX SELECT RESEARCH FUND
--------------------------------------------------------------------------------
GLOBAL SUB-CUSTODIAL SERVICES ANNUAL FEE SCHEDULE AT FEBRUARY, 2013
--------------------------------------------------------------------------------
[REDACTED]
29
EXHIBIT E TO THE CUSTODY AGREEMENT -- THE ADVISORS' INNER CIRCLE FUND II
XXXXXX SELECT RESEARCH FUND
[REDACTED]
30
EXHIBIT F
SHAREHOLDER COMMUNICATIONS ACT AUTHORIZATION
THE ADVISORS' INNER CIRCLE FUND II
The Shareholder Communications Act of 1985 requires banks and trust companies
to make an effort to permit direct communication between a company which issues
securities and the shareholder who votes those securities.
Unless you specifically require us to NOT release your name and address to
requesting companies, we are required by law to disclose your name and
address.
Your "yes(") or "no(") to disclosure will apply to all securities U.S. Bank
holds for you now and in the future, unless you change your mind and notify us
in writing.
_____ YES U.S. Bank is authorized to provide the Trust's name, address and
security position to requesting companies whose stock is owned by the Trust.
_____ NO U.S. Bank is NOT authorized to provide the Trust's name, address
and security position to requesting companies whose stock is owned by the Trust.
THE ADVISORS' INNER CIRCLE FUND II
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------
Title: VP and Secretary
Date: 2/14/13
31
