Exhibit 2(j)
CUSTODIAN SERVICES AGREEMENT
THIS AGREEMENT is made as of October 1, 2003 by and between SEI PRIVATE
TRUST COMPANY, a savings association supervised by the Office of Thrift
Supervision ("SEI Trust"), and XXXXXXXXXX LONG/SHORT FUND, LLC, a Delaware
limited liability company (the "Fund").
W I T N E S S E T H:
WHEREAS, the Fund is registered as a closed-end, non-diversified
management investment company under the Investment Company Act of 1940, as
amended (the "1940 Act"); and
WHEREAS, the Fund wishes to retain SEI Trust to provide custodian
services, and SEI Trust wishes to furnish custodian services, either directly or
through an affiliate or affiliates, as more fully described herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. DEFINITIONS.
(a) "1933 ACT" means the Securities Act of 1933, as amended.
(b) "1934 ACT" means the Securities Exchange Act of 1934, as amended.
(c) "AUTHORIZED PERSON" means any officer of the Fund and any other person
authorized by the Fund to give Written Instructions on behalf of the
Fund. An Authorized Person's scope of authority may be limited by
setting forth such limitation in a written document signed by both
parties hereto.
(d) "BOOK-ENTRY SYSTEM" means Federal Reserve Treasury book-entry system
for United States and federal agency securities, its successor or
successors, and its nominee or nominees and any book-entry system
maintained by an exchange registered with the SEC under the 1934 Act.
(e) "CEA" means the Commodities Exchange Act, as amended.
(f) "CHANGE OF CONTROL" means a change in ownership or control (not
including transactions between wholly-owned direct or indirect
subsidiaries of a common parent) of 25% or more of the beneficial
ownership of the shares of common stock or shares of beneficial
interest of an entity or its parent(s).
(g) "INTERESTS" mean the limited liability company interests of any series
or class of the Fund.
Exhibit 2(j)
(h) "SEI TRUST" means SEI Private Trust Company or a subsidiary or
affiliate of SEI Private Trust Company.
(i) "SEC" means the Securities and Exchange Commission.
(j) "SECURITIES LAWS" mean the 1933 Act, the 1934 Act, the 1940 Act and
the CEA.
(k) "PROPERTY" means:
(i) any and all securities and other investment items which the Fund
may from time to time deposit, or cause to be deposited, with
SEI Trust or which SEI Trust may from time to time hold for the
Fund;
(ii) all income in respect of any of such securities or other
investment items;
(iii) all proceeds of the sale of any of such securities or investment
items; and
(iv) all proceeds of the sale of securities issued by the Fund, which
are received by SEI Trust from time to time, from or on behalf
of the Fund.
(l) "WRITTEN INSTRUCTIONS" mean (i) written instructions delivered by
hand, mail or facsimile sending device and signed by two Authorized
Persons and received by SEI Trust or (ii) trade instructions
transmitted by means of an electronic transaction reporting system
which requires the use of a password or other authorized identifier in
order to gain access.
2. APPOINTMENT. The Fund hereby appoints SEI Trust to provide custodian services
to the Fund, and SEI Trust accepts such appointment and agrees to furnish such
services.
3. DELIVERY OF DOCUMENTS. The Fund has provided or, where applicable, will
provide SEI Trust with the following:
(a) at SEI Trust's request, certified or authenticated copies of the
resolutions of the Fund's Board of Managers, approving the appointment
of SEI Trust or its affiliates to provide services;
(b) a copy of the Fund's most recent effective registration statement;
(c) a copy of the Fund's advisory and, if applicable, sub-advisory
agreements;
(d) a copy of the distribution/underwriting agreements, if any, with
respect to each class of Interests;
(e) a copy of the Fund's administration agreement;
(f) copies of any distribution and/or member servicing plans and
agreements, if any, made in respect of the Fund or a class thereof;
and
(g) certified or authenticated copies of any and all amendments or
supplements to the foregoing.
4. COMPLIANCE WITH LAWS.
SEI Trust undertakes to comply with material applicable requirements of
the Securities Laws (specifically including, but not limited to, Section 17 of
the 1940 Act and rules promulgated thereunder) and material laws, rules and
regulations of governmental authorities having jurisdiction with respect to the
duties to be performed by SEI Trust hereunder. Except as specifically set forth
herein, SEI Trust assumes no responsibility for compliance with such laws by the
Fund or any other entity.
5. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, SEI Trust shall act only
upon Written Instructions.
(b) SEI Trust shall be entitled to rely upon any Written Instruction it
receives from an Authorized Person (or from a person reasonably
believed by SEI Trust to be an Authorized Person) pursuant to this
Agreement. SEI Trust may assume that any Written Instructions received
hereunder are not in any way inconsistent with the provisions of
organizational documents of the Fund or of any vote, resolution or
proceeding of the Fund's Board of Managers or of the Fund's members,
unless and until SEI Trust receives Written Instructions to the
contrary.
6. RIGHT TO RECEIVE ADVICE.
(a) ADVICE OF THE FUND. If SEI Trust is in doubt as to any action it
should or should not take, SEI Trust may request and be entitled to
rely upon directions or advice, including Written Instructions, from
the Fund.
(b) ADVICE OF COUNSEL. After having received directions or advice from the
Fund pursuant to Section 6(a), if SEI Trust shall be in doubt as to
any question of law pertaining to any action it should or should not
take, SEI Trust may request advice from counsel of its own choosing
(who may be counsel for the Fund, the Fund's investment adviser or SEI
Trust, at the option of SEI Trust), and such cost shall be borne by
the Fund.
(c) CONFLICTING ADVICE. In the event of a conflict between directions or
advice or Written Instructions SEI Trust receives from the Fund and
the advice it
receives from counsel, SEI Trust shall be entitled to rely upon and
follow the advice of counsel.
(d) PROTECTION OF SEI TRUST. SEI Trust shall be indemnified by the Fund
and without liability for any action SEI Trust takes or does not take
in reliance upon directions or advice or Written Instructions SEI
Trust receives from or on behalf of the Fund or from counsel and which
SEI Trust believes, in good faith, to be consistent with those
directions or advice or Written Instructions. Nothing in this section
shall be construed so as to impose an obligation upon SEI Trust (i) to
seek such directions or advice or Written Instructions, or (ii) to act
in accordance with such directions or advice or Written Instructions.
7. RECORDS; VISITS. The books and records pertaining to the Fund, which are in
the possession or under the control of SEI Trust shall be the property of the
Fund. Such books and records shall be prepared and maintained as required by the
1940 Act (specifically including, but not limited to Section 31 thereof and
Rules 31a-1 and 31a-2 thereunder) and other applicable securities laws, rules
and regulations. The Fund and Authorized Persons shall have access to such books
and records at all times during SEI Trust's normal business hours. Upon the
reasonable request of the Fund, copies of any such books and records shall be
provided by SEI Trust to the Fund or to an authorized representative of the
Fund, at the Fund's expense. In the event of the termination of this agreement,
all books and records maintained pursuant to this Section 7 shall be delivered
in accordance with Section 17 of this Agreement.
8. CONFIDENTIALITY. Each party shall keep confidential any information relating
to the other party's business ("Confidential Information"). Confidential
Information shall include (a) any data or information that is competitively
sensitive material, and not generally known to the public, including, but not
limited to, information about product plans, marketing strategies, finances,
operations, customer relationships, customer profiles, customer lists, sales
estimates, business plans, and internal performance results relating to the
past, present or future business activities of the Fund or SEI Trust, their
respective subsidiaries and affiliated companies and the customers, clients and
suppliers of any of them; (b) any scientific or technical information, design,
process, procedure, formula, or improvement that is commercially valuable and
secret in the sense that its confidentiality affords the Fund or SEI Trust a
competitive advantage over its competitors; (c) all confidential or proprietary
concepts, documentation, reports, data, specifications, computer software,
source code, object code, flow charts, databases, inventions, know-how, and
trade secrets, whether or not patentable or copyrightable; and (d) anything
designated as confidential. Notwithstanding the foregoing, information shall not
be subject to such confidentiality obligations if it: (a) is already known to
the receiving party at the first time it is obtained; (b) is or becomes publicly
known or available through no wrongful act of the receiving party; (c) is
rightfully received from a third party who, to the best of the receiving party's
knowledge, is not under a duty of confidentiality; (d) is released by the
protected party to a third party without restriction; (e) is required to be
disclosed by the receiving party pursuant to a requirement of a court order,
subpoena, governmental or regulatory agency or law (provided the receiving party
will provide the other party written notice of such requirement, to the extent
such notice is permitted); (f) is relevant to the defense of any claim or cause
of action asserted against the receiving party; or (g) has been or is
independently developed or obtained by the receiving party.
9. COOPERATION WITH ACCOUNTANTS. SEI Trust shall cooperate with the Fund's
independent public accountants in connection with the annual and other audits of
the books and records of the Fund and take all reasonable action as the Fund may
from time to time request, to provide from year to year the necessary
information to such accountants for the expression of their opinion (without any
qualification as to the scope of their examination), including but not limited
to, any opinion in connection with the annual audit of the Fund's financial
statements, preparation of the Fund's Form N-SAR or other annual reports to the
SEC, and with respect to any other requirements of the SEC.
10. SEI SYSTEM. SEI Trust shall retain title to and ownership of any and all
databases, computer programs, screen formats, report formats, interactive design
techniques, derivative works, inventions, discoveries, patentable or
copyrightable matters, concepts, expertise, patents, copyrights, trade secrets,
and other related legal rights utilized by SEI Trust in connection with the
services provided by SEI Trust to the Fund.
11. DISASTER RECOVERY. SEI Trust shall enter into and shall maintain in effect
with appropriate parties one or more agreements making reasonable provisions for
emergency use of electronic data processing equipment to the extent appropriate
equipment is available. In the event of equipment failures, SEI Trust shall, at
no additional expense to the Fund, take reasonable steps to minimize service
interruptions. SEI Trust shall have no liability with respect to the loss of
data or service interruptions caused by equipment failure provided such loss or
interruption is not caused by SEI Trust's own willful misfeasance, bad faith,
gross negligence or reckless disregard of its duties or obligations under this
Agreement.
12. COMPENSATION. As compensation for the services rendered by SEI Trust under
this Agreement, the Fund will pay to SEI Trust a fee in accordance with Schedule
B or as may be agreed to in writing from time to time by the Fund and SEI Trust.
The Fund acknowledges that SEI Trust may receive float benefits in connection
with maintaining certain accounts required to provide services under this
Agreement.
13. INDEMNIFICATION. The Fund agrees to indemnify and hold harmless SEI Trust
and its affiliates, including their respective officers, directors, agents and
employees, from all taxes, charges, expenses, assessments, claims and
liabilities (including, without limitation, reasonable attorneys' fees and
disbursements and liabilities arising under the Securities Laws and any state
and foreign securities and blue sky laws) arising directly or indirectly from
any action or omission to act which SEI Trust takes in connection with the
provision of services to the Fund. Neither SEI Trust, nor any of its affiliates,
shall be indemnified against any liability (or any expenses incident to such
liability) caused by SEI Trust's, its agents' or its affiliates' or their
respective officers, directors, agents and
employees own willful misfeasance, bad faith, gross negligence or reckless
disregard in the performance of SEI Trust's activities under this Agreement. The
provisions of this Section 13 shall survive termination of this Agreement.
14. RESPONSIBILITY OF SEI TRUST.
(a) SEI Trust shall be under no duty to take any action hereunder on
behalf of the Fund except as specifically set forth herein or as may
be specifically agreed to by SEI Trust and the Fund in a written
amendment hereto. SEI Trust shall be obligated to exercise care and
diligence in the performance of its duties hereunder and to act in
good faith in performing services provided for under this Agreement.
SEI Trust shall be liable only for any damages arising out of SEI
Trust's failure to perform its duties under this Agreement to the
extent such damages arise out of SEI Trust's willful misfeasance, bad
faith, gross negligence or reckless disregard of its duties under this
Agreement.
(b) Notwithstanding anything in this Agreement to the contrary, SEI Trust
shall not be liable for losses, delays, failure, errors, interruption
or loss of data occurring directly or indirectly by reason of
circumstances beyond its reasonable control, including without
limitation acts of god; action or inaction of civil or military
authority; public enemy; war; terrorism; riot; fire; flood; sabotage;
epidemics; labor disputes; civil commotion; interruption, loss or
malfunction of utilities, transportation, computer or communications
capabilities; insurrection; elements of nature; or non-performance by
a third party; and (ii) SEI Trust shall not be under any duty or
obligation to inquire into and shall not be liable for the validity or
invalidity, authority or lack thereof, or truthfulness or accuracy or
lack thereof, of any instruction, direction, notice, instrument or
other information which SEI Trust reasonably believes to be genuine.
(c) Notwithstanding anything in this Agreement to the contrary, (i)
neither SEI Trust nor its affiliates shall be liable for any
consequential, special or indirect losses or damages, whether or not
the likelihood of such losses or damages was known by SEI Trust or its
affiliates.
(d) No party may assert a cause of action against SEI Trust or any of its
affiliates that allegedly occurred more than 12 months immediately
prior to the filing of the suit (or, if applicable, commencement of
arbitration proceedings) alleging such cause of action.
(e) Each party shall have a duty to mitigate damages for which the other
party may become responsible.
The provisions of this Section 14 shall survive termination of this Agreement.
15. DESCRIPTION OF SERVICES. SEI Trust shall perform the custodian services set
forth in Schedule A hereto. SEI Trust may sub-contract with third parties to
perform
certain of the services to be performed by SEI Trust hereunder; provided,
however, that SEI Trust's obligations hereunder shall not be diminished in the
event that it sub-contracts any of its responsibilities hereunder. In meeting
its duties hereunder, SEI Trust shall have the general authority to do all acts
deemed in SEI Trust's good faith belief to be necessary and proper to perform
its obligations under this Agreement.
16. DURATION AND TERMINATION. This Agreement shall continue until terminated by
the Fund or SEI Trust on sixty (60) days' prior written notice to the other
party provided that it is ratified annually by the Fund's Board of Managers. SEI
Trust shall not be required to make any delivery or payment of assets upon
termination until full payment shall have been made to SEI Trust of all of its
fees, compensation, costs and expenses (such expenses include, without
limitation, expenses associated with movement (or duplication) of records and
materials and conversion thereof to a successor service provider, or to a bank
or trust company pending appointment of such successor, and all trailing
expenses incurred by SEI Trust). SEI Trust shall have, to the extent permissible
under the 1940 Act, a security interest in and shall have a right of setoff
against the Property as security for the payment of such fees, compensation,
costs and expenses.
17. SUCCESSOR CUSTODIAN. If a successor custodian shall be appointed by the
Board of Managers, SEI Trust shall, upon the termination of this Agreement and
at the cost of the Fund, deliver to such successor custodian at the office of
SEI Trust, duly endorsed and in the form for transfer, all securities, funds and
other properties then held by it hereunder and shall transfer to an account of
the successor custodian all of the securities of the Fund held in a Book-Entry
System. In the event that no Written Instructions designating a successor
custodian shall have been delivered to SEI Trust on or before the date when any
termination of this Agreement shall become effective, then SEI Trust shall have
the right to deliver at the cost of the Fund to a bank or trust company, which
is a "bank" as defined in the 1940 Act, of its own selection, having an
aggregate capital, surplus, and undivided profits, as shown by its last
published report, of not less than $25,000,000, all securities, funds and other
properties held by SEI Trust and all instruments held by SEI Trust relative
thereto and all other property held by it under this Agreement and to transfer
to an account of such successor custodian all of the securities of the Fund held
in a Book-Entry System. Thereafter, such bank or trust company shall be the
successor of SEI Trust under this Agreement, and SEI Trust shall have no further
liability hereunder, except as otherwise specifically provided by this
Agreement. In the event that securities, funds and other properties remain in
the possession of SEI Trust after the date of termination hereof owing to
failure of the Board of Managers to appoint a successor custodian, SEI Trust
shall be entitled to fair compensation for its services during such period as
SEI Trust retains possession of such securities, funds and other properties and
the provisions of this Agreement relating to the duties and obligations of the
Trust shall remain in full force and effect.
The provisions of this Section 17 shall survive any termination of this
Agreement.
18. NOTICES. Notices shall be addressed (a) if to SEI Trust at Xxx Xxxxxxx
Xxxxxx Xxxxx, Xxxx, Xxxxxxxxxxxx 00000, Attention: General Counsel; (b) if to
the Fund, at 000
Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, XX 00000, Attention: Chief Financial
Officer; or (c) if to neither of the foregoing, at such other address as shall
have been given by like notice to the sender of any such notice or other
communication by the other party. If notice is sent by confirming electronic,
hand or facsimile sending device, it shall be deemed to have been given
immediately. If notice is sent by first-class mail, it shall be deemed to have
been given five days after it has been mailed. If notice is sent by messenger,
it shall be deemed to have been given on the day it is delivered.
19. AMENDMENTS. This Agreement, or any term hereof, may be changed or waived
only by a written amendment, signed by the party against whom enforcement of
such change or waiver is sought.
20. DELEGATION; ASSIGNMENT. This Agreement may not be assigned by any party
without the written consent of the other parties. Notwithstanding the prior
sentence, SEI Trust may assign its rights and delegate its duties hereunder to
any affiliate of SEI Investments Company that is qualified to serve as a
custodian under the 1940 Act provided that SEI Trust gives the Fund 30 days'
prior written notice of such assignment or delegation. If any party shall merge
or consolidate with or sell substantially all of its assets to another
corporation or business entity, provided that such other corporation or business
entity shall assume without qualification or limitation all obligations of that
party hereunder either by operation of law or by agreement, such assumption
shall not be considered a prohibited assignment of this Agreement.
21. COUNTERPARTS. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
22. FURTHER ACTIONS. Each party agrees to perform such further acts and execute
such further documents as are necessary to effectuate the purposes hereof.
23. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding between the parties and supersedes all prior agreements
and understandings relating to the subject matter hereof, provided
that the parties may embody in one or more separate documents their
agreement, if any, with respect to delegated duties.
(b) NO REPRESENTATIONS OR WARRANTIES. Except as expressly provided in this
Agreement, SEI Trust hereby disclaims all representations and
warranties, express or implied, made to the Fund or any other person,
including, without limitation, any warranties regarding quality,
suitability, merchantability, fitness for a particular purpose or
otherwise (irrespective of any course of dealing, custom or usage of
trade), of any services or any goods provided incidental to services
provided under this Agreement. SEI Trust disclaims any
warranty of title or non-infringement except as otherwise set forth in
this Agreement.
(c) NO CHANGES THAT MATERIALLY AFFECT OBLIGATIONS. Notwithstanding
anything in this Agreement to the contrary, the Fund agrees not to
make any modifications to its registration statement or adopt any
policies which would affect materially the obligations or
responsibilities of SEI Trust hereunder without the prior written
approval of SEI Trust, which approval shall not be unreasonably
withheld or delayed, unless such modifications are required by the
Securities Laws in which case the Fund shall notify SEI Trust promptly
of such required modification.
(d) CAPTIONS. The captions in this Agreement are included for convenience
of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect.
(e) GOVERNING LAW. This Agreement shall be deemed to be a contract made in
New York and governed by the laws of the State of New York, without
regard to principles of conflicts of law.
(f) PARTIAL INVALIDITY. If any provision of this Agreement shall be held
or made invalid by a court decision, statute, rule or otherwise, the
remainder of this Agreement shall not be affected thereby.
(g) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
(h) FACSIMILE SIGNATURES. The facsimile signature of any party to this
Agreement shall constitute the valid and binding execution hereof by
such party.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
SEI PRIVATE TRUST COMPANY
By: /s/ Xxxxxxx Xxxxx
--------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
XXXXXXXXXX LONG/SHORT FUND, LLC
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
SCHEDULE A
DESCRIPTION OF SERVICES.
SEI Trust shall provide the following list of services to the Fund:
1. DELIVERY OF THE PROPERTY. The Fund will deliver or arrange for
delivery to SEI Trust, all the Property owned by it, including cash
received as a result of the distribution of Interests, during the term
of this Agreement. SEI Trust will not be responsible for such property
until actual receipt.
2. RECEIPTS AND DISBURSEMENT OF MONEY. SEI Trust, acting upon Written
Instructions, shall open and maintain a physically separate custodial
account or accounts in the United States in the Fund's name (the
"Accounts"), subject only to draft or order by SEI Trust acting
pursuant to the terms of this Agreement, and shall hold in such
account or accounts, subject to the provisions hereof all cash
received by it from or for the account of the Fund, other than such
cash, if any, maintained by the Fund in a custodial account
established and used in accordance with Rule 17f-3 under the 1940 Act.
Such funds shall be held by SEI Trust in its capacity as custodian to
the Fund and shall be withdrawable by SEI Trust only in that capacity.
SEI Trust shall make cash payments from or for the Accounts of the
Fund only for:
(a) purchases of securities in the name of the Fund, SEI Trust, SEI
Trust's nominee or a sub-custodian or nominee thereof as provided
in Section 9 of this Schedule A and for which SEI Trust has
received a copy of the broker's or dealer's confirmation or
payee's invoice, as appropriate;
(b) purchase or redemption of Interests of the Fund delivered to SEI
Trust;
(c) payment of, subject to Written Instructions, interest, taxes,
administration, accounting, distribution, advisory, management
fees or similar expenses which are to be borne by the Fund;
(d) payment to, subject to receipt of Written Instructions, the
Fund's investor services agent, as agent for the members, of an
amount equal to the amount of dividends and distributions stated
in the Written Instructions to be distributed in cash by the
investor services agent to members, or, in lieu of paying the
Fund's investor services agent, SEI Trust may arrange for the
direct payment of cash dividends and distributions to members in
accordance with procedures mutually agreed upon from time to time
by and among the Fund, SEI Trust and the Fund's investor services
agent.
(e) payments, upon receipt of Written Instructions, in connection
with the conversion, exchange or surrender of securities owned or
subscribed to by the Fund and held by or delivered to SEI Trust;
(f) payments made to a sub-custodian pursuant to provisions in
sub-section (c) of this Section; and
(g) other payments, upon Written Instructions.
SEI Trust is hereby authorized to endorse and collect all checks,
drafts or other orders for the payment of money received as custodian
for the Accounts.
3. RECEIPT OF SECURITIES; SUB-CUSTODIANS.
(a) SEI Trust shall hold all securities received by it for the
Accounts in a separate account that physically segregates such
securities from those of any other persons, firms or
corporations, except for securities held in a Book-Entry System.
All such securities shall be held or disposed of only upon
Written Instructions of the Fund pursuant to the terms of this
Agreement. SEI Trust shall have no power or authority to assign,
hypothecate, pledge or otherwise dispose of any such securities
or investment, except upon the express terms of this Agreement or
upon Written Instructions authorizing the transaction. In no case
may any member of the Fund's Board of Managers, or any officer,
employee or agent of the Fund withdraw any securities.
(b) At SEI Trust's own expense and for its own convenience, SEI Trust
may enter into sub-custodian agreements with other banks or trust
companies (provided that such entity shall be qualified to serve
as custodian under the 0000 Xxx) to perform duties described in
this Section 3 with respect to domestic assets. Such bank or
trust company shall have an aggregate capital, surplus and
undivided profits, according to its last published report, of at
least one million dollars ($1,000,000), if it is a subsidiary or
affiliate of SEI Trust, or at least twenty million dollars
($20,000,000) if such bank or trust company is not a subsidiary
or affiliate of SEI Trust. In addition, such bank or trust
company must be qualified to act as custodian and agree to comply
with the relevant provisions of applicable rules and regulations.
Any such arrangement will not be entered into without prior
written notice to the Fund (or as otherwise provided in the 1940
Act). In addition, SEI Trust may enter into arrangements with
sub-custodians with respect to services regarding foreign assets.
Any such arrangement will be entered into with prior written
notice to the Fund (or as otherwise provided in the 1940 Act).
(c) SEI Trust shall remain responsible for the performance of all of
its duties as described in this Agreement and shall hold the Fund
harmless from its own acts or omissions, under the standards of
care provided for herein, or the acts
and omissions of any sub-custodian chosen by SEI Trust under the
terms of this Section 3.
4. TRANSACTIONS REQUIRING INSTRUCTIONS. Upon receipt of Written
Instructions and not otherwise, SEI Trust, directly or through the use
of the Book-Entry System, shall:
(a) deliver any securities held for the Fund against the receipt of
payment for the sale of such securities;
(b) execute and deliver to such persons as may be designated in such
Written Instructions, proxies, consents, authorizations, and any
other instruments whereby the authority of the Fund as owner of
any securities may be exercised;
(c) deliver any securities to the issuer thereof, or its agent, when
such securities are called, redeemed, retired or otherwise become
payable at the option of the holder; provided that, in any such
case, the cash or other consideration is to be delivered to SEI
Trust;
(d) deliver any securities held for the Fund against receipt of
other securities or cash issued or paid in connection with the
liquidation, reorganization, refinancing, tender offer, merger,
consolidation or recapitalization of any corporation, or the
exercise of any conversion privilege;
(e) deliver any securities held for the Fund to any protective
committee, reorganization committee or other person in connection
with the reorganization, refinancing, merger, consolidation,
recapitalization or sale of assets of any corporation, and
receive and hold under the terms of this Agreement such
certificates of deposit, interim receipts or other instruments or
documents as may be issued to it to evidence such delivery;
(f) make such transfer or exchanges of the assets of the Fund and
take such other steps as shall be stated in said Written
Instructions to be for the purpose of effectuating a duly
authorized plan of liquidation, reorganization, merger,
consolidation or recapitalization of the Fund;
(g) release and deliver or exchange securities owned by the Fund in
connection with any conversion of such securities, pursuant to
their terms, into other securities;
(h) release and deliver securities owned by the Fund for the purpose
of redeeming in kind Interests of the Fund upon delivery thereof
to SEI Trust; and
(i) release and deliver or exchange securities owned by the Fund for
other purposes pursuant to a certified resolution describing the
nature of the corporate purpose and the name and address of the
person(s) to whom delivery shall be made.
5. USE OF BOOK-ENTRY SYSTEM. SEI Trust is authorized and instructed, on a
continuous basis, to deposit in the Book-Entry System all securities
belonging to the Fund eligible for deposit therein and to utilize the
Book-Entry System to the extent possible in connection with
settlements of purchases and sales of securities by the Fund, and
deliveries and returns of securities loaned, subject to repurchase
agreements or used as collateral in connection with borrowings. SEI
Trust shall continue to perform such duties until it receives Written
Instructions authorizing contrary actions.
SEI Trust shall administer the Book-Entry System as follows:
(a) With respect to securities of the Fund which are maintained in
the Book-Entry System, the records of SEI Trust shall identify by
Book-Entry or otherwise those securities belonging to the Fund.
(b) Assets of the Fund deposited in the Book-Entry System will at all
times be segregated from any assets and cash controlled by SEI
Trust in other than a fiduciary or custodian capacity but may be
commingled with other assets held in such capacities.
SEI Trust will provide the Fund with such reports on its own system of
internal control as the Fund may reasonably request from time to time.
6. REGISTRATION OF SECURITIES. All Securities held for the Fund which are
issued or issuable only in bearer form, except such securities held in
the Book-Entry System, shall be held by SEI Trust in bearer form; all
other securities held for the Fund may be registered in the name of
the Fund, SEI Trust, the Book-Entry System, a sub-custodian, or any
duly appointed nominee of the Fund, SEI Trust, Book-Entry System or
sub-custodian. The Fund reserves the right to instruct SEI Trust as to
the method of registration and safekeeping of the securities of the
Fund. The Fund agrees to furnish to SEI Trust appropriate instruments
to enable SEI Trust to hold or deliver in proper form for transfer, or
to register in the name of its nominee or in the name of the
Book-Entry System or in the name of another appropriate entity, any
securities which it may hold for the Accounts and which may from time
to time be registered in the name of the Fund.
7. VOTING AND OTHER ACTION. Neither SEI Trust nor its nominee shall vote
any of the securities held pursuant to this Agreement by or for the
account of the Fund, except in accordance with Written Instructions.
SEI Trust, directly or through the use of the Book-Entry System, shall
execute in blank and promptly deliver all notices, proxies and proxy
soliciting materials received by SEI Trust as
custodian of the Property to the registered holder of such securities.
If the registered holder is not the Fund, then Written Instructions
must designate the person who owns such securities.
8. TRANSACTIONS NOT REQUIRING INSTRUCTIONS. In the absence of contrary
Written Instructions, SEI Trust is authorized to take the following
actions:
(a) COLLECTION OF INCOME AND OTHER PAYMENTS.
(1) collect and receive for the account of the Fund, all income,
dividends, distributions, coupons, option premiums, other
payments and similar items, included or to be included in
the Property, and, in addition, promptly advise the Fund of
such receipt and credit such income, as collected, to the
Fund's custodian account;
(2) endorse and deposit for collection, in the name of the Fund,
checks, drafts, or other orders for the payment of money;
(3) receive and hold for the account of the Fund all securities
received as a distribution on the Fund's securities as a
result of a stock dividend, share split-up or
reorganization, recapitalization, readjustment or other
rearrangement or distribution of rights or similar
securities issued with respect to any securities belonging
to the Fund and held by SEI Trust hereunder;
(4) present for payment and collect the amount payable upon all
securities which may mature or be, on a mandatory basis,
called, redeemed, or retired, or otherwise become payable on
the date such securities become payable; and
(5) take any action which may be necessary and proper in
connection with the collection and receipt of such income
and other payments and the endorsement for collection of
checks, drafts, and other negotiable instruments.
(b) MISCELLANEOUS TRANSACTIONS.
(1) SEI Trust is authorized to deliver or cause to be delivered
Property against payment or other consideration or written
receipt therefor in the following cases:
(i) for examination by a broker or dealer selling for the
account of the Fund in accordance with street delivery
custom;
(ii) for the exchange of interim receipts or temporary
securities for definitive securities; and
(iii)for transfer of securities into the name of the Fund
or SEI Trust or a sub-custodian or a nominee of one of
the foregoing, or for exchange of securities for a
different number of bonds, certificates, or other
evidence, representing the same aggregate face amount
or number of units bearing the same interest rate,
maturity that, in any such case, the new securities are
to be delivered to SEI Trust.
(2) unless and until SEI Trust receives Written Instructions to
the contrary, SEI Trust shall:
(i) pay all income items held by it which call for payment
upon presentation and hold the cash received by it upon
such payment for the account of the Fund;
(ii) collect interest and cash dividends received, with
notice to the Fund, to the account of the Fund;
(iii)hold for the account of the Fund all stock dividends,
rights and similar securities issued with respect to
any securities held by SEI Trust; and
(iv) execute as agent on behalf of the Fund all necessary
ownership certificates required by the Internal Revenue
Code or the Income Tax Regulations of the United States
Treasury Department or under the laws of any state now
or hereafter in effect, inserting the Fund's name on
such certificate as the owner of the securities covered
thereby, to the extent it may lawfully do so.
9. PURCHASES OF SECURITIES. SEI Trust shall settle purchased securities
upon receipt of Written Instructions that specify:
(a) the name of the issuer and the title of the securities, including
CUSIP number if applicable;
(b) the number of shares or the principal amount purchased and
accrued interest, if any;
(c) the date of purchase and settlement;
(d) the purchase price per unit;
(e) the total amount payable upon such purchase; and
(f) the name of the person from whom or the broker through whom the
purchase was made.
SEI Trust shall upon receipt of securities purchased by or for the
Fund pay out of the moneys held for the account of the Fund the total
amount payable to the person from whom or the broker through whom the
purchase was made, provided that the same conforms to the total amount
payable as set forth in such Written Instructions.
10. SALES OF SECURITIES. SEI Trust shall settle sold securities upon
receipt of Written Instructions that specify:
(a) the name of the issuer and the title of the security, including
CUSIP number if applicable;
(b) the number of shares or principal amount sold, and accrued
interest, if any;
(c) the date of trade and settlement;
(d) the sale price per unit;
(e) the total amount payable to the Fund upon such sale;
(f) the name of the broker through whom or the person to whom the
sale was made; and
(g) the location to which the security must be delivered and delivery
deadline, if any.
SEI Trust shall deliver the securities upon receipt of the total
amount payable to the Fund upon such sale, provided that the total
amount payable is the same as was set forth in the Written
Instructions. Notwithstanding the other provisions thereof, SEI Trust
may accept payment in such form as shall be satisfactory to it, and
may deliver securities and arrange for payment in accordance with the
customs prevailing among dealers in securities. In the event SEI Trust
does not receive all the necessary information to settle sold
securities in accordance with this Section, the Fund shall take any
reasonable steps, requested by SEI Trust, to obtain the required
information and forward it to SEI Trust in a timely manner.
11. REPORTS; PROXY MATERIALS.
(a) SEI Trust shall furnish to the Fund the following reports:
(1) such periodic and special reports as the Fund may reasonably
request;
(2) a monthly statement summarizing all transactions and entries
for the account of the Fund, listing each portfolio security
belonging to the Fund with the adjusted average cost of each
issue and the market value at the end of such month and
stating the cash account of the Fund including
disbursements;
(3) the reports required to be furnished to the Fund pursuant to
Rule 17f-4 of the 1940 Act; and
(4) such other information as may be agreed upon from time to
time between the Fund and SEI Trust.
(b) SEI Trust shall transmit promptly to the Fund any proxy
statement, proxy material, notice of a call or conversion or
similar communication received by it as custodian of the
Property. SEI Trust shall be under no other obligation to inform
the Fund as to such actions or events. For clarification, upon
termination of this Agreement SEI Trust shall have no
responsibility to transmit such material or to inform the Fund or
any other person of such actions or events.
12. CREDITING OF ACCOUNTS. If SEI Trust in its sole discretion credits an
Account with respect to (a) income, dividends, distributions, coupons,
option premiums, other payments or similar items on a contractual
payment date or otherwise in advance of SEI Trust's actual receipt of
the amount due, (b) the proceeds of any sale or other disposition of
assets on the contractual settlement date or otherwise in advance of
SEI Trust's actual receipt of the amount due or (c) provisional
crediting of any amounts due, and (i) SEI Trust is subsequently unable
to collect full and final payment for the amounts so credited within a
reasonable time period using reasonable efforts or (ii) pursuant to
standard industry practice, law or regulation SEI Trust is required to
repay to a third party such amounts so credited, or if any Property
has been incorrectly credited, SEI Trust shall have the absolute right
in its sole discretion without demand to reverse any such credit or
payment, to debit or deduct the amount of such credit or payment from
the Account, and to otherwise pursue recovery of any such amounts so
credited from the Fund. Nothing herein or otherwise shall require SEI
Trust to make any advances or to credit any amounts until SEI Trust's
actual receipt thereof. The Fund hereby grants a first priority
contractual possessory security interest in and a right of setoff
against the assets maintained in an Account hereunder in the amount
necessary to secure the return and payment to SEI Trust of any advance
or credit made by SEI Trust (including charges related thereto) to
such Account.
13. COLLECTIONS. All collections of monies or other property in respect,
or which are to become part, of the Property (but not the safekeeping
thereof upon receipt by SEI Trust) shall be at the sole risk of the
Fund. If payment is not received by SEI Trust within a reasonable time
after proper demands have been made, SEI Trust shall notify the Fund
in writing, including copies of all demand
letters, any written responses and memoranda of all oral responses and
shall await instructions from the Fund. SEI Trust shall not be obliged
to take legal action for collection unless and until reasonably
indemnified to its satisfaction. SEI Trust shall also notify the Fund
as soon as reasonably practicable whenever income due on securities is
not collected in due course and shall provide the Fund with periodic
status reports of such income collected after a reasonable time.
SCHEDULE B
FEES
The Fund shall pay SEI Trust compensation at the annual rate of 0.01% of the net
assets of the Fund. Such compensation shall be calculated and accrued monthly,
and paid to SEI Trust quarterly, within 10 business days of each calendar
quarter-end.
If this Agreement shall become effective subsequent to the first day of a month
or terminates before the last day of a month, SEI Trust's compensation for that
part of the month in which this Agreement is in effect shall be prorated in a
manner consistent with the calculation of the fees as set forth above.
