DRAFT OF APRIL 2, 1998
CUSTODY AGREEMENT
AGREEMENT, dated as of May __, 1998 by and between THE RBB FUND, INC. (the
"Company"), a corporation organized and existing under the laws of the State of
Maryland, acting with respect to and on behalf of each of the series of the
Company that are identified on Exhibit A hereto (each, a "Portfolio"), and
CUSTODIAL TRUST COMPANY, a bank organized and existing under the laws of the
State of New Jersey (the "Custodian").
WHEREAS, the Company desires that the securities, funds and other assets of
the Portfolios be held and administered by Custodian pursuant to this Agreement;
WHEREAS, each Portfolio is an investment portfolio represented by a series
of Shares constituting part of the capital stock of the Company, an open-end
management investment company registered under the 1940 Act;
WHEREAS, Custodian represents that it is a bank having the qualifications
prescribed in the 1940 Act to act as custodian for management investment
companies registered under the 1940 Act;
NOW, THEREFORE, in consideration of the mutual agreements herein made, the
Company and Custodian hereby agree as follows:
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following terms, unless the context
otherwise requires, shall mean:
1.1 "AUTHORIZED PERSON" means any person authorized by
resolution of the Board of Directors to give Oral Instructions and Written
Instructions on behalf of the Company and identified, by name or by office, in
Exhibit B hereto or any person designated to do so by an investment adviser of
any Portfolio who is named by the Company in Exhibit C hereto.
1.2 "BOARD OF DIRECTORS TRUSTEES" means the Board of Directors of the
Company or, when permitted under the 1940 Act, the Executive Committee thereof,
if any.
1.3 "BOOK-ENTRY SYSTEM" means a book-entry system maintained by a Federal
Reserve Bank for securities of the United States government or of agencies or
instrumentalities thereof (including government-sponsored enterprises).
1.4 "BUSINESS DAY" means any day on which banks in the State of New Jersey
and New York are open for business.
1.5 "CUSTODY ACCOUNT" means, with respect to a Portfolio, the account in
the name of such Portfolio, which is provided for in Section 3.2 below.
1.6 "DOMESTIC SECURITIES DEPOSITORY" means The Depository Trust Company and
any other clearing agency registered with the Securities and Exchange Commission
under the Securities Exchange Act of 1934, which acts as a securities
depository.
1.7 "ELIGIBLE DOMESTIC BANK" means a bank as defined in the 1940 Act.
1.8 "ELIGIBLE FOREIGN CUSTODIAN" means any banking institution, trust
company or other entity (including any Foreign Securities Depository) organized
under the laws of a country other than the United States which is eligible under
the 1940 Act to act as a custodian for securities and other assets of a
Portfolio held
outside the United States.
1.9 "FOREIGN CUSTODY MANAGER" has the same meaning as in the 1940 Act.
1.10 "FOREIGN SECURITIES DEPOSITORY" means a foreign securities depository
or clearing agency as defined in the 1940 Act.
1.11 "MASTER REPURCHASE AGREEMENT" means the Master Repurchase Agreement
of even date herewith between the Company and Bear, Xxxxxxx & Co. Inc. as it may
from time to time be amended.
1.12 "MASTER SECURITIES LOAN AGREEMENT" means the Master Securities Loan
Agreement of even date herewith between the Company and Bear, Xxxxxxx Securities
Corp. as it may from time to time be amended.
1.13 "1940 ACT" means the Investment Company Act of 1940, as amended, and
the rules and regulations thereunder.
1.14 "ORAL INSTRUCTIONS" means instructions orally transmitted to and
accepted by Custodian which are (A) reasonably believed by Custodian to have
been given by an Authorized Person, (B) recorded and kept among the records of
Custodian made in the ordinary course of business, and (C) completed in
accordance with Custodian's requirements from time to time as to content of
instructions and their manner and timeliness of delivery by the Company.
1.15 "PROPER INSTRUCTIONS" means Oral Instructions or Written Instructions.
Proper Instructions may be continuing Written Instructions when deemed
appropriate by the Company and Custodian.
1.16 "SECURITIES DEPOSITORY" means any Domestic Securities
Depository or Foreign Securities Depository.
1.17 "SHARES" means, with respect to a Portfolio, those shares in a series
or class of the capital stock of the Company that represent interests in such
Portfolio.
1.18 "WRITTEN INSTRUCTIONS" means written communications received by
Custodian that are (A) reasonably believed by Custodian to have been signed or
sent by an Authorized Person, (B) sent or transmitted by letter, facsimile,
central processing unit connection, on-line terminal or magnetic tape, and (C)
completed in accordance with Custodian's requirements from time to time as to
content of instructions and their manner and timeliness of delivery by the
Company.
ARTICLE II
APPOINTMENT OF CUSTODIAN
2.1 APPOINTMENT. The Company hereby appoints Custodian as custodian of all
such securities, funds and other assets of each Portfolio as may be acceptable
to Custodian and from time to time delivered to it by the Company or others for
the account of such Portfolio.
2.2 ACCEPTANCE. Custodian hereby accepts appointment as such custodian and
agrees to perform the duties thereof as hereinafter set forth.
ARTICLE III
CUSTODY OF SECURITIES, FUNDS AND OTHER ASSETS
3.1 SEGREGATION. All securities and non-cash property of a Portfolio in the
possession of Custodian (other than securities maintained by Custodian with a
sub-custodian appointed pursuant to this Agreement or in a Securities Depository
or Book-Entry System) shall be physically segregated from other such securities
and non-cash property in the possession of Custodian. All cash, securities and
other non-cash property of a Portfolio shall be identified as belonging to such
Portfolio.
3.2 CUSTODY ACCOUNT. (a) Custodian shall open and maintain in its trust
department a custody account in the name of each Portfolio, subject only to
draft or order of Custodian, in which Custodian shall enter and carry all
securities, funds and other assets of such Portfolio which are delivered to
Custodian and accepted by it.
(b) If, with respect to any Portfolio, Custodian at any time fails to
receive any of the documents referred to in Section 3.10(a) below, then, until
such time as it receives such document, it shall not be obligated to receive any
securities into the Custody Account of such Portfolio and shall be entitled to
return to such Portfolio any securities that it is holding in such Custody
Account.
3.3 SECURITIES IN PHYSICAL FORM. Custodian may, but shall not be obligated
to, hold securities that may be held only in physical form.
3.4 DISCLOSURE TO ISSUERS OF SECURITIES. Custodian is authorized to
disclose the Company's and any Portfolio's names and addresses, and the
securities positions in such Portfolio's Custody Account, to the issuers of such
securities when requested by them to do so.
3.5 EMPLOYMENT OF DOMESTIC SUB-CUSTODIANS. At any time and from time to
time, Custodian in its discretion may appoint and employ, and may also cease to
employ, any Eligible Domestic Bank as sub-custodian to hold securities and other
assets of a Portfolio that are maintained in the United States and to carry out
such other provisions of this Agreement as it may determine, provided,
however, that the employment of any such sub-custodian has been approved by the
Company. The employment of any such sub-custodian shall be at Custodian's
expense and shall not relieve Custodian of any of its obligations or liabilities
under this Agreement.
3.6 EMPLOYMENT OF FOREIGN SUB-CUSTODIANS. (a) At any time and from time to
time, Custodian in its discretion may appoint and employ in accordance with the
1940 Act, and may also cease to employ, (I) any overseas branch of any Eligible
Domestic Bank, or (II) any Eligible Foreign Custodian selected by the Foreign
Custody Manager, in each case as a foreign sub-custodian for securities and
other assets of a Portfolio that are maintained outside the United States,
provided, however, that the employment of any such overseas branch has been
approved by the Company and, provided further that, in the case of any such
Eligible Foreign Custodian, the Foreign Custody Manager has approved, in
writing, the agreement (and/or, in the case of a Foreign Securities Depository,
the rules and/or established practices and procedures thereof) pursuant to which
Custodian employs such Eligible Foreign Custodian.
(b) Set forth on Exhibit D hereto, with respect to each Portfolio, are the
foreign sub-custodians (including Foreign Securities Depositories) that
Custodian may employ pursuant to Section 3.6(a) above. Exhibit D shall be
revised from time to time as foreign sub-custodians are added or deleted.
(c) If the Company proposes to have a Portfolio make an investment which is
to be held in a country in which Custodian does not have appropriate
arrangements in place with a foreign sub-custodian selected by the Foreign
Custody Manager, then the Company shall inform Custodian sufficiently in advance
of such investment to allow Custodian to make such arrangements.
(d) Notwithstanding anything to the contrary in Section 8.1
below, Custodian shall have no greater liability to any Portfolio or the Company
for the actions or omissions of any foreign sub-custodian appointed pursuant to
this Agreement than any such foreign sub-custodian has to Custodian, and
Custodian shall not be required to discharge any such liability which may be
imposed on it unless and until such foreign sub-custodian has effectively
indemnified Custodian against it or has otherwise discharged its liability to
Custodian in full.
(e) Upon the request of the Foreign Custody Manager, Custodian shall
furnish to the Foreign Custody Manager information concerning all foreign
sub-custodians employed pursuant to this Agreement which shall be similar in
kind and scope to any such information that may have been furnished to the
Foreign Custody Manager in connection with the initial approval by the Foreign
Custody Manager of the agreements pursuant to which Custodian employs such
foreign sub-custodians or as otherwise required by the 1940 Act.
3.7 EMPLOYMENT OF OTHER AGENTS. Custodian may employ other suitable agents,
which may include affiliates of Custodian such as Bear, Xxxxxxx & Co. Inc.
("Bear Xxxxxxx") or Bear, Xxxxxxx Securities Corp.("BS Securities"), both of
which are securities broker-dealers, provided, however, that Custodian shall not
employ (a) BS Securities to hold any collateral pledged by BS Securities under
the Master Securities Loan Agreement or any other securities loan agreement
between the Company and BS Securities, whether now or hereafter in effect, or
(b) Bear Xxxxxxx to hold any securities purchased from Bear Xxxxxxx under the
Master Repurchase Agreement or any other repurchase agreement between the
Company and Bear Xxxxxxx, whether now or hereafter in effect. The appointment of
any agent pursuant to this Section 3.7 shall not relieve Custodian of any of its
obligations or liabilities under this Agreement.
3.8 BANK ACCOUNTS. In its discretion and from time to time Custodian may
open and maintain one or more demand deposit accounts with any Eligible Domestic
Bank (any such accounts to be in the name of Custodian and subject only to its
draft or order), provided, however, that the opening and maintenance of any such
account shall be at Custodian's expense and shall not relieve Custodian of any
of its obligations or liabilities under this Agreement.
3.9 DELIVERY OF ASSETS TO CUSTODIAN. Provided they are acceptable to
Custodian, the Company shall deliver to Custodian the securities, funds and
other assets of each Portfolio, including (A) payments of income, payments of
principal and capital distributions received by such Portfolio with respect to
securities, funds or other assets owned by such Portfolio at any time during the
term of this Agreement, and (B) funds received by such Portfolio for the
issuance, at any time during such term, of Shares of such Portfolio. Custodian
shall not be under any duty or obligation to require the Company to deliver to
it any securities or other assets owned by a Portfolio and shall have no
responsibility or liability for or on account of securities or other assets not
so delivered.
3.10 DOMESTIC SECURITIES DEPOSITORIES AND BOOK-ENTRY SYSTEMS. Custodian and
any sub-custodian appointed pursuant to Section 3.5 above may deposit and/or
maintain securities of any Portfolio in a Domestic Securities Depository or in a
Book-Entry System, subject to the following provisions:
(a) Prior to a deposit of securities of a Portfolio in any Domestic
Securities Depository or Book-Entry System, the Company shall deliver to
Custodian a resolution of the Board of Directors, certified by an officer of the
Company, authorizing and instructing Custodian (and any sub-custodian appointed
pursuant to Section 3.5 above) on an on-going basis to deposit in
such Domestic Securities Depository or Book-Entry System all securities eligible
for deposit therein and to make use of such Domestic Securities Depository or
Book-Entry System to the extent possible and practical in connection with the
performance of its obligations hereunder (or under the applicable sub-custody
agreement in the case of such sub-custodian), 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 a Portfolio kept in a Book-Entry System or Domestic
Securities Depository shall be kept in an account ("Depository Account") of
Custodian (or of any sub-custodian appointed pursuant to Section 3.5 above) in
such Book-Entry System or Domestic Securities Depository which includes only
assets held by Custodian (or such sub-custodian) as a fiduciary, custodian or
otherwise for customers.
(c) The records of Custodian with respect to securities of a Portfolio that
are maintained in a Book-Entry System or Domestic Securities Depository shall at
all times identify such securities as belonging to such Portfolio.
(d) If securities purchased by a Portfolio are to be held in a Book-Entry
System or Domestic Securities Depository, Custodian (or any sub-custodian
appointed pursuant to Section 3.5 above) shall pay for such securities upon (I)
receipt of advice from the Book-Entry System or Domestic Securities Depository
that such securities have been transferred to the Depository Account, and (II)
the making of an entry on the records of Custodian (or of such sub-custodian) to
reflect such payment and transfer for the account of such Portfolio. If
securities sold by a Portfolio are held in a Book-Entry System or Domestic
Securities Depository, Custodian (or such sub-custodian) shall transfer such
securities upon (A) receipt of advice from the Book-Entry System or Domestic
Securities Depository that payment for such securities has been transferred to
the Depository Account, and (B) the making of an entry on the records of
Custodian (or of such sub-custodian) to reflect such transfer and payment for
the account of such Portfolio.
(e) Custodian shall provide the Company with copies of any report obtained
by Custodian (or by any sub-custodian appointed pursuant to Section 3.5 above)
from a Book-Entry System or Domestic Securities Depository in which securities
of a Portfolio are kept on the internal accounting controls and procedures for
safeguarding securities deposited in such Book-Entry System or Domestic
Securities Depository.
(f) At its election, the Company shall be subrogated to the rights of
Custodian (or of any sub-custodian appointed pursuant to Section 3.5 above) with
respect to any claim against a Book-Entry System or Domestic Securities
Depository or any other person for any loss or damage to a Portfolio arising
from the use of such Book-Entry System or Domestic Securities Depository, if and
to the extent that such Portfolio has not been made whole for any such loss or
damage.
3.11 RELATIONSHIP WITH SECURITIES DEPOSITORIES. No Book-Entry System,
Securities Depository, or other securities depository or clearing agency
(whether foreign or domestic) which it is or may become standard market practice
to use for the comparison and settlement of trades in securities shall be an
agent or sub-contractor of Custodian for purposes of Section 3.7 above or
otherwise.
3.12 PAYMENTS FROM CUSTODY ACCOUNT. Upon receipt of Proper Instructions
with respect to a Portfolio but subject to its right to foreclose upon and
liquidate collateral pledged to it pursuant to Section 9.3 below, Custodian
shall make payments from the Custody Account of such Portfolio, but only in the
following
cases, provided, FIRST, that such payments are in connection with the clearance
and/or custody of securities or other assets, SECOND, that there are sufficient
funds in such Custody Account, whether belonging to such Portfolio or advanced
to it by Custodian in its sole and absolute discretion as set forth in Section
3.18 below, for Custodian to make such payments, and, THIRD, that after the
making of such payments, such Portfolio would not be in violation of any margin
or other requirements agreed upon pursuant to Section 3.18 below:
(a) For the purchase of securities for such Portfolio but only (I) in the
case of securities (other than options on securities, futures contracts and
options on futures contracts), against the delivery to Custodian (or any
sub-custodian appointed pursuant to this Agreement) of such securities
registered as provided in Section 3.20 below or in proper form for transfer or,
if the purchase of such securities is effected through a Book-Entry System or
Domestic Securities Depository, in accordance with the conditions set forth in
Section 3.10 above, and (II) in the case of options, futures contracts and
options on futures contracts, against delivery to Custodian (or such
sub-custodian) of evidence of title thereto in favor of such Portfolio, the
Custodian, any such sub-custodian, or any nominee referred to in Section 3.20
below;
(b) In connection with the conversion, exchange or surrender, as set forth
in Section 3.13(f) below, of securities owned by such Portfolio;
(c) For transfer in accordance with the provisions of any agreement among
the Company, Custodian and a securities broker-dealer, 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 of such Portfolio;
(d) For transfer in accordance with the provisions of any agreement among
the Company, Custodian and a futures commission merchant, relating to compliance
with the rules of the Commodity Futures Trading Commission and/or any contract
market (or any similar organization or organizations) regarding margin or other
deposits in connection with transactions of such Portfolio;
(e) For the funding of any time deposit (whether certificated or not) or
other interest-bearing account with any banking institution (including
Custodian), provided that Custodian shall receive and retain such certificate,
advice, receipt or other evidence of deposit (if any) as such banking
institution may deliver with respect to any such deposit or account;
(f) For the purchase from a banking or other financial institution of loan
participations, but only if Custodian has in its possession a copy of the
agreement between the Company and such banking or other financial institution
with respect to the purchase of such loan participations and provided that
Custodian shall receive and retain such participation certificate or other
evidence of participation (if any) as such banking or other financial
institution may deliver with respect to any such loan participation;
(g) For the purchase and/or sale of foreign currencies or of options to
purchase and/or sell foreign currencies, for spot or future delivery, for the
account of such Portfolio pursuant to contracts between the Company and any
banking or other financial institution (including Custodian, any sub-custodian
appointed pursuant to this Agreement and any affiliate of Custodian);
(h) For transfer to a securities broker-dealer as margin for
a short sale of securities for such Portfolio, or as payment in lieu of
dividends paid on securities sold short for such Portfolio;
(i) For the payment as provided in Article IV below of any dividends,
capital gain distributions or other distributions declared on the Shares of such
Portfolio;
(j) For the payment as provided in Article IV below of the redemption price
of the Shares of such Portfolio;
(k) For the payment of any expense or liability incurred by such Portfolio,
including but not limited to the following payments for the account of such
Portfolio: interest, taxes, and administration, investment advisory, accounting,
auditing, transfer agent, custodian, trustee and legal fees, and other operating
expenses of such Portfolio; in all cases, whether or not such expenses are to be
in whole or in part capitalized or treated as deferred expenses; and
(l) For any other proper purpose, but only upon receipt of Proper
Instructions, specifying the amount and purpose of such payment, certifying such
purpose to be a proper purpose of such Portfolio, and naming the person or
persons to whom such payment is to be made.
3.13 DELIVERIES FROM CUSTODY ACCOUNT. Upon receipt of Proper Instructions
with respect to a Portfolio but subject to its right to foreclose upon and
liquidate collateral pledged to it pursuant to Section 9.3 below, Custodian
shall release and deliver securities and other assets from the Custody Account
of such Portfolio, but only in the following cases, provided, FIRST, that such
deliveries are in connection with the clearance and/or custody of securities or
other assets, SECOND, there are sufficient amounts and types of securities or
other assets in such Custody Account for Custodian to make such deliveries, and,
THIRD, that after the making of such deliveries, such Portfolio would not be in
violation of any margin or other requirements agreed upon pursuant to Section
3.18 below:
(a) Upon the sale of securities for the account of such Portfolio but,
subject to Section 3.14 below, only against receipt of payment therefor or, if
such sale is effected through a Book-Entry System or Domestic Securities
Depository, in accordance with the provisions of Section 3.10 above;
(b) To an offeror's depository agent in connection with tender or other
similar offers for securities of such Portfolio; provided that, in any such
case, the funds or other consideration for such securities is to be delivered to
Custodian;
(c) To the issuer thereof or its agent when such securities are called,
redeemed or otherwise become payable, provided that in any such case the funds
or other consideration for such securities is to be delivered to Custodian;
(d) To the issuer thereof or its agent 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 Custodian;
(e) To the securities broker through whom securities are being sold for
such Portfolio, 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
funds, if any, are to be delivered to Custodian;
(g) In the case of warrants, rights or similar securities, to the issuer of
such warrants, rights or similar securities, or its agent, upon the exercise
thereof, provided that, in any such case, the new securities and funds, if any,
are to be delivered to Custodian;
(h) To the borrower thereof, or its agent, in connection with any loans of
securities for such Portfolio pursuant to any securities loan agreement entered
into by the Company, but only against receipt by Custodian of such collateral as
is required under such securities loan agreement;
(i) To any lender, or its agent, as collateral for any borrowings from such
lender by such Portfolio that require a pledge of assets of such Portfolio, but
only against receipt by Custodian of the amounts borrowed;
(j) Pursuant to any authorized plan of liquidation, reorganization, merger,
consolidation or recapitalization of such Portfolio or the Company;
(k) For delivery in accordance with the provisions of any agreement among
the Company, Custodian and a securities broker- dealer, 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 of such
Portfolio;
(l) For delivery in accordance with the provisions of any
agreement among the Company, Custodian, and a futures commission merchant,
relating to compliance with the rules of the Commodity Futures Trading
Commission and/or any contract market (or any similar organization or
organizations) regarding margin or other deposits in connection with
transactions of such Portfolio;
(m) For delivery to a securities broker-dealer as margin for a short sale
of securities for such Portfolio;
(n) To the issuer of American Depositary Receipts or International
Depositary Receipts (hereinafter, collectively, "ADRs") for such securities, or
its agent, against a written receipt therefor adequately describing such
securities, provided that such securities are delivered together with
instructions to issue ADRs in the name of Custodian or its nominee and to
deliver such ADRs to Custodian;
(o) In the case of ADRs, to the issuer thereof, or its agent, against a
written receipt therefor adequately describing such ADRs, provided that such
ADRs are delivered together with instructions to deliver the securities
underlying such ADRs to Custodian or an agent of Custodian; or
(p) For any other proper purpose, but only upon receipt of Proper
Instructions, specifying the securities or other assets to be delivered, setting
forth the purpose for which such delivery is to be made, certifying such purpose
to be a proper purpose of such Portfolio, and naming the person or persons to
whom delivery of such securities or other assets is to be made.
3.14 DELIVERY PRIOR TO FINAL PAYMENT. When instructed by the Company to
deliver securities of a Portfolio against payment, Custodian shall be entitled,
but only if in accordance with generally accepted market practice, to deliver
such securities prior to actual receipt of final payment therefor and,
exclusively in the
case of securities in physical form, prior to receipt of payment therefor. In
any such case, such Portfolio 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
Custodian shall have no liability for any of the foregoing.
3.15 CREDIT PRIOR TO FINAL PAYMENT. In its sole discretion and from time to
time, Custodian may credit the Custody Account of a Portfolio, prior to actual
receipt of final payment thereof, with (A) proceeds from the sale of securities
of such Portfolio which it has been instructed to deliver against payment, (B)
proceeds from the redemption of securities or other assets in such Custody
Account, and (C) income from securities, funds or other assets in such Custody
Account. 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. Custodian may, in its sole discretion and from time to time, permit a
Portfolio to use funds so credited to its Custody Account in anticipation of
actual receipt of final payment. Any funds so used shall constitute an advance
subject to Section 3.18 below.
3.16 DEFINITION OF FINAL PAYMENT. For purposes of this Agreement, "final
payment" means payment in funds which are (or have become) immediately
available, under applicable law are irreversible, and are not subject to any
security interest, xxxx, xxxx or other encumbrance.
3.17 PAYMENTS AND DELIVERIES OUTSIDE THE UNITED STATES. Notwithstanding
anything to the contrary that may be required by Section 3.12 or Section 3.13
above, or elsewhere in this Agreement, in the case of securities and other
assets maintained outside the United States and in the case of payments made
outside the United States, Custodian and any sub-custodian appointed pursuant to
this Agreement may receive and deliver such
securities or other assets, and may make such payments, in accordance with the
laws, regulations, customs, procedures and practices applicable in the relevant
local market outside the United States.
3.18 CLEARING CREDIT. Custodian may, in its sole discretion and from time
to time, advance funds to the Company to facilitate the settlement of a
Portfolio's transactions in the Custody Account of such Portfolio. Any such
advance (A) shall be repayable immediately upon demand made by Custodian, (B)
shall be fully secured as provided in Section 9.3 below, and (C) shall bear
interest at such rate, and be subject to such other terms and conditions, as
Custodian and the Company may agree.
3.19 ACTIONS NOT REQUIRING PROPER INSTRUCTIONS. Unless otherwise instructed
by the Company, Custodian shall with respect to all securities and other assets
held for a Portfolio:
(a) Subject to Section 8.4 below, receive into the Custody Account of such
Portfolio any funds or other property, including payments of principal, interest
and dividends, due and payable on or on account of such securities and other
assets;
(b) Deliver securities of such Portfolio to the issuers of such securities
or their agents for the transfer thereof into the name of such Portfolio,
Custodian or any of the nominees referred to in Section 3.20 below;
(c) Endorse for collection, in the name of such Portfolio, 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 of the United
States, or the laws or regulations of any other taxing authority, in connection
with the transfer of such securities or other assets or the receipt of income or
other payments with respect thereto;
(f) Receive and hold for such Portfolio all rights and similar securities
issued with respect to securities or other assets of such Portfolio;
(g) As may be required in the execution of Proper Instructions, transfer
funds from the Custody Account of such Portfolio to any demand deposit account
maintained by Custodian pursuant to Section 3.8 above; and
(h) In general, attend to all non-discretionary details in connection with
the sale, exchange, substitution, purchase and transfer of, and other dealings
in, such securities and other assets.
3.20 REGISTRATION AND TRANSFER OF SECURITIES. All securities held for a
Portfolio that are issuable only in bearer form shall be held by Custodian in
that form, provided that any such securities shall be held in a Securities
Depository or Book-Entry System if eligible therefor. All other securities and
all other assets held for a Portfolio may be registered in the name of (A)
Custodian as agent, (B) any sub-custodian appointed pursuant to this Agreement,
(C) any Securities Depository, or (D) any nominee or agent of any of them. The
Company shall furnish to Custodian appropriate instruments to enable Custodian
to hold or deliver in proper form for transfer, or to register as in this
Section 3.20 provided, any securities or other assets delivered to Custodian
which are registered in the name of a Portfolio.
3.21 RECORDS. (A) Custodian shall maintain complete and
accurate records with respect to securities, funds and other assets held for a
Portfolio, 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 funds; (II) ledgers (or other records)
reflecting (A) securities in transfer, if any, (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 and interest received, and (E) dividends receivable
and interest accrued; and (III) cancelled checks and bank records related
thereto. Custodian shall keep such other books and records with respect to
securities, funds and other assets of a Portfolio which are held hereunder as
the Company may reasonably request.
(b) All such books and records maintained by Custodian for a Portfolio
shall (I) be maintained in a form acceptable to the Company and in compliance
with rules and regulations of the Securities and Exchange Commission, (II) be
the property of such Portfolio and at all times during the regular business
hours of Custodian be made available upon request for inspection by duly
authorized officers, employees or agents of the Company and employees or agents
of the Securities and Exchange Commission, and (III) if required to be
maintained under the 1940 Act, be preserved for the periods prescribed therein.
3.22 ACCOUNT REPORTS BY CUSTODIAN. Custodian shall furnish the Company with
a daily activity statement, including a summary of all transfers to or from the
Custody Account of each Portfolio (in the case of securities and other assets
maintained in the United States, on the day following such transfers). At least
monthly and from time to time, Custodian shall furnish the Company with a
detailed statement of the securities, funds and other assets held for each
Portfolio under this Agreement.
3.23 OTHER REPORTS BY CUSTODIAN. Custodian shall provide the Company with
such reports as the Company may reasonably request from time to time on the
internal accounting controls and procedures for safeguarding securities which
are employed by Custodian or any sub-custodian appointed pursuant to this
Agreement.
3.24 PROXIES AND OTHER MATERIALS. (a) Unless otherwise instructed by the
Company, Custodian shall promptly deliver to the Company all notices of
meetings, proxy materials (other than proxies) and other announcements, which
it receives regarding securities held by it in the Custody Account of a
Portfolio. Whenever Custodian or any of its agents receives a proxy with
respect to securities in the Custody Account of a Portfolio, Custodian shall
promptly request instructions from the Company on how such securities are to
be voted, and shall give such proxy, or cause it to be given, in accordance
with such instructions. If the Company timely informs Custodian that the
Company wishes to vote any such securities in person, Custodian shall
promptly seek to have a legal proxy covering such securities issued to the
Company. Unless otherwise instructed by the Company, neither Custodian nor
any of its agents shall exercise any voting rights with respect to securities
held hereunder.
(b) Unless otherwise instructed by the Company, Custodian shall promptly
transmit to the Company all other written information received by Custodian from
issuers of securities held in the Custody Account of any Portfolio. With respect
to tender or exchange offers for such securities or with respect to other
corporate transactions involving such securities, Custodian shall promptly
transmit to the Company all written information received by Custodian from the
issuers of such securities or from any party (or its agents) making any such
tender or exchange offer or
participating in such other corporate transaction. If the Company, with respect
to such tender or exchange offer or other corporate transaction, desires to take
any action that may be taken by it pursuant to the terms of such offer or other
transaction, the Company shall notify Custodian (i) in the case of securities
maintained outside the United States, such number of Business Days prior to the
date on which Custodian is to take such action as will allow Custodian to take
such action in the relevant local market for such securities in a timely
fashion, and (ii) in the case of all other securities, at least five Business
Days prior to the date on which Custodian is to take such action.
3.25 CO-OPERATION. Custodian shall cooperate with and supply necessary
information to the entity or entities appointed by the Company to keep the books
of account of a Portfolio and/or to compute the value of the assets of a
Portfolio.
ARTICLE IV
REDEMPTION OF PORTFOLIO SHARES;
DIVIDENDS AND OTHER DISTRIBUTIONS
4.1 TRANSFER OF FUNDS. From such funds as may be available for the purpose
in the Custody Account of a Portfolio, and upon receipt of Proper Instructions
specifying that the funds are required to redeem Shares of such Portfolio or to
pay dividends or other distributions to holders of Shares of such Portfolio,
Custodian shall transfer each amount specified in such Proper Instructions to
such account of such Portfolio or of an agent thereof (other than Custodian), at
such bank, as the Company may designate therein with respect to such amount.
4.2 SOLE DUTY OF CUSTODIAN. Custodian's sole obligation with respect to the
redemption of Shares of a Portfolio and the payment of dividends and other
distributions thereon shall be its obligation set forth in Section 4.1 above,
and Custodian shall
not be required to make any payments to the various holders from time to time of
Shares of a Portfolio nor shall Custodian be responsible for the payment or
distribution by the Company, or any agent designated in Proper Instructions
given pursuant to Section 4.1 above, of any amount paid by Custodian to the
account of the Company or such agent in accordance with such Proper
Instructions.
ARTICLE V
SEGREGATED ACCOUNTS
Upon receipt of Proper Instructions to do so, Custodian shall establish and
maintain a segregated account or accounts for and on behalf of any Portfolio,
into which account or accounts may be transferred funds and/or securities,
including securities maintained in a Securities Depository:
(a) in accordance with the provisions of any agreement among the Company,
Custodian and a securities broker-dealer (or any futures commission merchant),
relating to compliance with the rules of The Options Clearing Corporation or 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 of such Portfolio,
(b) for purposes of segregating funds or securities in connection with
securities options purchased or written by such Portfolio or in connection with
financial futures contracts (or options thereon) purchased or sold by such
Portfolio,
(c) which constitute collateral for loans of securities made by such
Portfolio,
(d) for purposes of compliance by such Portfolio with requirements under
the 1940 Act for the maintenance of segregated
accounts by registered management investment companies in connection with
reverse repurchase agreements, when-issued, delayed delivery and firm commitment
transactions, and short sales of securities, and
(e) for other proper purposes, but only upon receipt of Proper
Instructions, specifying the purpose or purposes of such segregated account and
certifying such purposes to be proper purposes of such Portfolio.
ARTICLE VI
CERTAIN REPURCHASE TRANSACTIONS
6.1 TRANSACTIONS. If and to the extent that the necessary funds and
securities of a Portfolio have been entrusted to it under this Agreement, and
subject to Custodian's right to foreclose upon and liquidate collateral pledged
to it pursuant to Section 9.3 below, Custodian, as agent of such Portfolio,
shall from time to time (and unless the Company gives it Proper Instructions to
do otherwise) make from the Custody Account of such Portfolio the transfers of
funds and deliveries of securities which such Portfolio is required to make
pursuant to the Master Repurchase Agreement and shall receive for the Custody
Account of such Portfolio the transfers of funds and deliveries of securities
which the seller under the Master Repurchase Agreement is required to make
pursuant thereto. Custodian shall make and receive all such transfers and
deliveries pursuant to, and subject to the terms and conditions of, the Master
Repurchase Agreement.
6.2 COLLATERAL. Custodian shall daily xxxx to market the securities
purchased under the Master Repurchase Agreement and held in the Custody Account
of a Portfolio, and shall give to the seller thereunder any such notice as may
be required thereby in connection with such xxxx-to-market.
6.3 EVENTS OF DEFAULT. Custodian shall promptly notify the Company of any
event of default under the Master Repurchase Agreement (as such term "event of
default" is defined therein) of which it has actual knowledge.
6.4 MASTER REPURCHASE AGREEMENT. Custodian hereby acknowledges its receipt
from the Company of a copy of the Master Repurchase Agreement. The Company shall
provide Custodian, prior to the effectiveness thereof, with a copy of any
amendment to the Master Repurchase Agreement.
ARTICLE VII
CERTAIN SECURITIES LENDING TRANSACTIONS
7.1 TRANSACTIONS. If and to the extent that the necessary funds and
securities of a Portfolio have been entrusted to it under this Agreement, and
subject to Custodian's right to foreclose upon and liquidate collateral pledged
to it pursuant to Section 9.3 below, Custodian, as agent of such Portfolio,
shall from time to time (and unless the Company gives it Proper Instructions to
do otherwise) make from the Custody Account of such Portfolio the transfers of
funds and deliveries of securities which such Portfolio is required to make
pursuant to the Master Securities Loan Agreement and shall receive for the
Custody Account of such Portfolio the transfers of funds and deliveries of
securities which the borrower under the Master Securities Loan Agreement is
required to make pursuant thereto. Custodian shall make and receive all such
transfers and deliveries pursuant to, and subject to the terms and conditions
of, the Master Securities Loan Agreement.
7.2 COLLATERAL. Custodian shall daily xxxx to market, in the manner
provided for in the Master Securities Loan Agreement, all loans of securities
which may from time to time be outstanding
thereunder.
7.3 DEFAULTS. Custodian shall promptly notify the Company of any default
under the Master Securities Loan Agreement (as such term "default" is defined
therein) of which it has actual knowledge.
7.4 MASTER SECURITIES LOAN AGREEMENT. Custodian hereby acknowledges its
receipt from the Company of a copy of the Master Securities Loan Agreement. The
Company shall provide Custodian, prior to the effectiveness thereof, with a copy
of any amendment to the Master Securities Loan Agreement.
ARTICLE VIII
CONCERNING THE CUSTODIAN
8.1 STANDARD OF CARE. Custodian shall be held to the exercise of reasonable
care in carrying out its obligations under this Agreement, and shall be without
liability to any Portfolio or the Company for any loss, damage, cost, expense
(including attorneys' fees and disbursements), liability or claim which does not
arise from willful misfeasance, bad faith or negligence on the part of
Custodian. Custodian shall be entitled to rely on and may act upon advice of
counsel in all matters, and shall be without liability for any action reasonably
taken or omitted pursuant to such advice. In no event shall Custodian be liable
for special, incidental or consequential damages, even if Custodian has been
advised of the possibility of such damages, or be liable in any manner
whatsoever for any action taken or omitted upon instructions from the Company or
any agent of the Company.
8.2 ACTUAL COLLECTION REQUIRED. Custodian shall not be liable for, or
considered to be the custodian of, any funds belonging to a Portfolio or any
money represented by a check, draft or other instrument for the payment of
money, until Custodian or its agents actually receive such funds or collect on
such instrument.
8.3 NO RESPONSIBILITY FOR TITLE, ETC. So long as and to the extent that it
is in the exercise of reasonable care, Custodian shall not be responsible for
the title, validity or genuineness of any assets or evidence of title thereto
received or delivered by it or its agents.
8.4 LIMITATION ON DUTY TO COLLECT. Custodian shall promptly notify the
Company whenever any money or property due and payable from or on account of any
securities or other assets held hereunder for a Portfolio is not timely received
by it. Custodian shall not, however, be required to enforce collection, by legal
means or otherwise, of any such money or other property not paid when due, but
shall receive the proceeds of such collections as may be effected by it or its
agents in the ordinary course of Custodian's custody and safekeeping business or
of the custody and safekeeping business of such agents.
8.5 EXPRESS DUTIES ONLY. Custodian shall have no duties or obligations
whatsoever except such duties and obligations as are specifically set forth in
this Agreement, and no covenant or obligation shall be implied in this Agreement
against Custodian. Custodian shall have no discretion whatsoever with respect to
the management, disposition or investment of the Custody Account of any
Portfolio and is not a fiduciary to any Portfolio or the Company. In particular,
Custodian shall not be under any obligation at any time to monitor or to take
any other action with respect to compliance by any Portfolio or the Company with
the 1940 Act, the provisions of the Corporation's charter documents or by-laws,
or any Portfolio's investment objectives, policies and limitations as in effect
from time to time.
ARTICLE IX
INDEMNIFICATION
9.1 INDEMNIFICATION. Each Portfolio shall indemnify and hold harmless
Custodian, any sub-custodian appointed pursuant to this Agreement and any
nominee of any of them, from and against any loss, damages, cost, expense
(including attorneys' fees and disbursements), liability (including, without
limitation, liability arising under the Securities Act of 1933, the Securities
Exchange Act of 1934, the 1940 Act, and any federal, state or foreign securities
and/or banking laws) or claim arising directly or indirectly (a) from the fact
that securities or other assets in the Custody Account of such Portfolio are
registered in the name of any such nominee, or (b) from any action or inaction,
with respect to such Portfolio, by Custodian or such sub-custodian or nominee
(i) at the request or direction of or in reliance on the advice of the Company
or any of its agents, or (ii) upon Proper Instructions, or (c) generally, from
the performance of its obligations under this Agreement with respect to such
Portfolio, provided that Custodian, any such sub-custodian or any nominee of any
of them shall not be indemnified and held harmless from and against any such
loss, damage, cost, expense, liability or claim arising from willful
misfeasance, bad faith or negligence on the part of Custodian or any such
sub-custodian or nominee.
9.2 INDEMNITY TO BE PROVIDED. If the Company requests Custodian to take
any action with respect to securities or other assets of a Portfolio, which
may, in the opinion of Custodian, result in Custodian or its nominee becoming
liable for the payment of money or incurring liability of some other form,
Custodian shall not be required to take such action until such Portfolio
shall have provided indemnity therefor to Custodian in an amount and form
satisfactory to Custodian.
9.3 SECURITY. As security for the payment of any present or future
obligation or liability of any kind which a Portfolio may have to Custodian with
respect to or in connection with the
Custody Account of such Portfolio or this Agreement, or which such Portfolio may
otherwise have to Custodian, the Company hereby pledges to Custodian all
securities, funds and other assets of every kind which are in such Custody
Account or otherwise held for such Portfolio pursuant to this Agreement, and
hereby grants to Custodian a lien, right of set-off and continuing security
interest in such securities, funds and other assets.
ARTICLE X
FORCE MAJEURE
Custodian shall not 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; sabotage; strikes; epidemics; riots; power failures; computer
failure and any such circumstances beyond its reasonable control as may cause
interruption, loss or malfunction of utility, transportation, computer (hardware
or software) or telephone communication service; accidents; labor disputes; acts
of civil or military authority; actions by any governmental authority, DE JURE
or DE FACTO; or inability to obtain labor, material, equipment or
transportation.
ARTICLE XI
REPRESENTATIONS AND WARRANTIES
11.1 REPRESENTATIONS WITH RESPECT TO PORTFOLIOS. The Company represents and
warrants that (a) it has all necessary power and authority to perform the
obligations hereunder of each Portfolio, (b) the execution and delivery by it of
this Agreement, and the performance by it of the obligations hereunder of each
Portfolio, have been duly authorized by all necessary action and will not
violate any law, regulation, charter, by-law, or other
instrument, restriction or provision applicable to it or such Portfolio or by
which it or such Portfolio, or their respective assets, may be bound, and (c)
this Agreement constitutes a legal, valid and binding obligation of each
Portfolio, enforceable against it in accordance with its terms.
11.2 REPRESENTATIONS OF CUSTODIAN. Custodian represents and warrants that
(a) it has all necessary power and authority to perform its obligations
hereunder, (b) the execution and delivery by it of this Agreement, and the
performance by it of its obligations hereunder, have been duly authorized by all
necessary action and will not violate any law, regulation, charter, by-law, or
other instrument, restriction or provision applicable to it or by which it or
its assets may be bound, and (c) this Agreement constitutes a legal, valid and
binding obligation of it, enforceable against it in accordance with its terms.
ARTICLE XII
COMPENSATION OF CUSTODIAN
Each Portfolio shall pay Custodian such fees and charges as are set forth
in Exhibit E hereto, as such Exhibit E may from time to time be revised by
Custodian upon 14 days' prior written notice to the Company. Any annual fee or
other charges payable by a Portfolio shall be paid monthly by automatic
deduction from funds available therefor in the Custody Account of such
Portfolio, or, if there are no such funds, upon presentation of an invoice
therefor. Out-of-pocket expenses incurred by Custodian in the performance of its
services hereunder for any Portfolio and all other proper charges and
disbursements of the Custody Account of such Portfolio shall be charged to such
Custody Account by Custodian and paid in the same manner as the annual fee and
other charges referred to in this Article XII.
ARTICLE XIII
TAXES
13.1 TAXES PAYABLE BY PORTFOLIOS. Any and all taxes, including any interest
and penalties with respect thereto, which may be levied or assessed under
present or future laws or in respect of the Custody Account of any Portfolio or
any income thereof shall be charged to such Custody Account by Custodian and
paid in the same manner as the annual fee and other charges referred to in
Article XII above.
13.2 TAX RECLAIMS. Upon the written request of the Company, Custodian shall
exercise, on behalf of any Portfolio, any tax reclaim rights of such Portfolio
which arise in connection with foreign securities in the Custody Account of such
Portfolio.
ARTICLE XIV
AUTHORIZED PERSONS; NOTICES
14.1 AUTHORIZED PERSONS. Custodian may rely upon and act in accordance with
any notice, confirmation, instruction or other communication which is reasonably
believed by Custodian to have been given or signed on behalf of the Company by
one of the Authorized Persons designated by the Company in Exhibit B hereto, as
it may from time to time be revised. The Company may revise Exhibit B hereto at
any time by notice in writing to Custodian given in accordance with Section 14.4
below, but no revision of Exhibit B hereto shall be effective until Custodian
actually receives such notice.
14.2 INVESTMENT ADVISERS. Custodian may also rely upon and act in
accordance with any Written or Oral Instructions given with respect to a
Portfolio which are reasonably believed by Custodian to have been given or
signed by one of the persons designated from time to time by any of the
investment advisers of such Portfolio
who are specified in Exhibit C hereto (if any) as it may from time to time be
revised. The Company may revise Exhibit C hereto at any time by notice in
writing to Custodian given in accordance with Section 14.4 below, and each
investment adviser specified in Exhibit C hereto (if any) may at any time by
like notice designate an Authorized Person or remove an Authorized Person
previously designated by it, but no revision of Exhibit C hereto (if any) and no
designation or removal by such investment adviser shall be effective until
Custodian actually receives such notice.
14.3 ORAL INSTRUCTIONS. Custodian may rely upon and act in accordance with
Oral Instructions. All Oral Instructions shall be confirmed to Custodian in
Written Instructions. However, if Written Instructions confirming Oral
Instructions are not received by Custodian prior to a transaction, it shall in
no way affect the validity of the transaction authorized by such Oral
Instructions or the authorization given by an Authorized Person to effect such
transaction. Custodian shall incur no liability to any Portfolio or the Company
in acting upon Oral Instructions. To the extent such Oral Instructions vary from
any confirming Written Instructions, Custodian shall advise the Company of such
variance but unless confirming Written Instructions are timely received, such
Oral Instructions shall govern.
14.4 ADDRESSES FOR NOTICES. Unless otherwise specified herein, all demands,
notices, instructions, and other communications to be given hereunder shall be
sent, delivered or given to the recipient at the address, or the relevant
telephone number, set forth after its name hereinbelow:
If to the Company:
THE RBB FUND
for [INSERT NAME OF PORTFOLIO]
Bellevue Park Corporate Center
000 Xxxxxxxx Xxxxxxx (Ste 100)
Xxxxxxxxxx, XX 00000
Attention:
------------------------------
Telephone: (302) -
---- ----
Facsimile: (302) -
---- ----
If to Custodian:
CUSTODIAL TRUST COMPANY
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000-0000
Attention: VICE PRESIDENT - TRUST OPERATIONS
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or at such other address as either party hereto shall have provided to the other
by notice given in accordance with this Section 14.4. Writing shall include
transmissions by or through teletype, facsimile, central processing unit
connection, on-line terminal and magnetic tape.
14.5 REMOTE CLEARANCE. Written Instructions for the receipt, delivery or
transfer of securities may include, and Custodian shall accept, Remote Clearance
Instructions (as defined hereinbelow) and Bulk Input Instructions (as defined
hereinbelow), provided that such Instructions are given in accordance with the
procedures prescribed by Custodian from time to time as to content of
instructions and their manner and timeliness of delivery by Customer. Custodian
shall be entitled to conclusively assume that all Remote Clearance Instructions
and Bulk Input Instructions have been given by an Authorized Person, and
Custodian is hereby irrevocably authorized to act in accordance therewith. For
purposes of this Agreement, "Remote Clearance Instructions" means instructions
that are input directly via a remote terminal which is located on the premises
of the Company, or of an investment adviser named in Exhibit C hereto, and
linked to Custodian; and "Bulk Input Instructions" means instructions that are
input by bulk input computer tape delivered to Custodian by messenger or
transmitted to it via such transmission mechanism as the Company and Custodian
shall from time to time agree upon.
ARTICLE XV
TERMINATION
Either party hereto may terminate this Agreement with respect to one or
more of the Portfolios by giving to the other party a notice in writing
specifying the date of such termination, which shall be not less than sixty (60)
days after the date of the giving of such notice. Upon the date set forth in
such notice this Agreement shall terminate with respect to each Portfolio
specified in such notice, and Custodian shall, upon receipt of a notice of
acceptance by the successor custodian, on that date (a) deliver directly to the
successor custodian or its agents all securities (other than securities held in
a Book-Entry System or Securities Depository) and other assets then owned by
such Portfolio and held by Custodian as custodian, and (b) transfer any
securities held in a Book-Entry System or Securities Depository to an account of
or for the benefit of such Portfolio, provided that such Portfolio shall have
paid to Custodian all fees, expenses and other amounts to the payment or
reimbursement of which it shall then be entitled.
ARTICLE XVI
MISCELLANEOUS
16.1 BUSINESS DAYS. Nothing contained in this Agreement shall require
Custodian to perform any function or duty on a day other than a Business Day.
16.2 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to the
conflict of law principles thereof.
16.3 REFERENCES TO CUSTODIAN. The Company 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 a Portfolio and such other printed
matter as merely identifies Custodian as custodian for a Portfolio. The Company
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.
16.4 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.
16.5 AMENDMENTS. This Agreement cannot be changed orally and, except as
otherwise provided herein with respect to the Exhibits attached hereto, no
amendment to this Agreement shall be effective unless evidenced by an instrument
in writing executed by the parties hereto.
16.6 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and by the parties hereto on separate
counterparts, each of which shall be deemed an original but all of which
together shall constitute but one and the same instrument.
16.7 SEVERABILITY. If any provision of this Agreement shall be
invalid, illegal or unenforceable in any respect under any applicable law, the
validity, legality and enforceability of the remaining provisions shall not be
affected or impaired thereby.
16.8 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors and
assigns; PROVIDED, HOWEVER, that this Agreement shall not be assignable by
either party hereto without the written consent of the other party. Any
purported assignment in violation of this Section 16.8 shall be void.
16.9 JURISDICTION. Any suit, action or proceeding with respect to this
Agreement may be brought in the Supreme Court of the State of New York, County
of New York, or in the United States District Court for the Southern District of
New York, and the parties hereto hereby submit to the non-exclusive jurisdiction
of such courts for the purpose of any such suit, action or proceeding, and
hereby waive for such purpose any other preferential jurisdiction by reason of
their present or future domicile or otherwise.
16.10 HEADINGS. The headings of sections in this Agreement are for
convenience of reference only and shall not affect the meaning or construction
of any provision of this Agreement.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed in its name and on its behalf by its representative thereunto duly
authorized, all as of the day and year first above written.
THE RBB FUND, INC.
with respect to and on behalf
of the Portfolios identified on
Exhibit A hereto
By:
----------------------
Name: Xxxxxx X. Xxxxx
Title: President & Treasurer
CUSTODIAL TRUST COMPANY
By:
----------------------
Name: Xxxxxx X. Xxxxxx
Title: President
EXHIBIT A
PORTFOLIOS
- XXX Xxxx-Short Market Neutral Fund
- XXX Xxxx-Short Equity Fund
EXHIBIT B
AUTHORIZED PERSONS
Set forth below are the names and specimen signatures of the persons
authorized by the Company to administer the Custody Accounts of the Portfolios.
NAME
--------------------------------------------------------------------------------
SIGNATURE
--------------------------------------------------------------------------------
EXHIBIT C
INVESTMENT ADVISERS
ALL PORTFOLIOS
BEA Associates
EXHIBIT D
APPROVED FOREIGN SUB-CUSTODIANS AND SECURITIES DEPOSITORIES
ALL PORTFOLIOS
FOREIGN SUB-CUSTODIAN COUNTRY(IES) SECURITIES DEPOSITORIES
EXHIBIT E
CUSTODY FEES AND TRANSACTION CHARGES
(XXX XXXX-SHORT MARKET NEUTRAL FUND)
DOMESTIC FEES. Assets maintained by the XXX Xxxx-Short Market Neutral Fund
("Portfolio One") in the United States are hereinafter referred to as "Domestic
Assets". FOR PURPOSES OF CALCULATING THE ANNUAL FEE HEREINAFTER PROVIDED FOR AND
CHARGING THE TRANSACTION FEES HEREINAFTER PROVIDED FOR, ALL DOMESTIC ASSETS HELD
IN THE ACCOUNT ESTABLISHED PURSUANT TO THE SPECIAL CUSTODY ACCOUNT AMONG THE
COMPANY, CUSTODIAN AND BEAR XXXXXXX, DATED AS OF MAY __, 1998, SHALL BE DEEMED
TO BE HELD IN THE CUSTODY ACCOUNT OF PORTFOLIO ONE UNDER THIS AGREEMENT AND ALL
TRANSACTIONS IN SUCH DOMESTIC ASSETS SHALL BE DEEMED TO HAVE OCCURRED IN SUCH
CUSTODY ACCOUNT.
Portfolio One shall pay Custodian the following fees for Domestic Assets
and the following charges for transactions in the United States, all such fees
and charges to be payable monthly:
(1) an annual fee equal to the sum of (a) 0.04% (four basis points) per
annum of the value of the Domestic Assets held in Portfolio One's Custody
Account up to $50 million, plus (b) 0.02% (two basis points) per annum of the
amount by which the value of such Domestic Assets is more than $50 million but
less than $200 million, plus (c) 0.01% (one basis point) per annum of the amount
by which the value of such Domestic Assets exceeds $200 million, with each such
percentage fee to be based upon the total market value of such Domestic Assets
as determined on the last Business Day of the month for which such fee is
charged;
(2) a transaction charge of $25 for each receive or deliver into or from
such Custody Account of securities in physical form;
(3) a transaction charge for each repurchase transaction in such Custody
Account which represents a cash sweep investment for Portfolio One's account,
computed on the basis of a 360-day year and for the actual number of days such
repurchase transaction is outstanding at a rate of 0.10% (ten basis points) per
annum on the amount of the purchase price paid by Portfolio One in such
repurchase transaction;
(4) a charge of $10 for each "free" transfer of funds from such Custody
Account;
(5) an administrative fee for each purchase in such Custody Account of
shares or other interests in a money market or other fund, which purchase
represents a cash sweep investment for Portfolio One's account, computed for
each day that there is a positive balance in such fund to equal 1/365th of 0.10%
(ten basis points) on the amount of such positive balance for such day; and
(6) a service charge for each holding of securities or other assets of
Portfolio One that are sold by way of private placement or in such other manner
as to require services by Custodian which in its reasonable judgment are
materially in excess of those ordinarily required for the holding of publicly
traded securities in the United States.
INTERNATIONAL FEES. Portfolio One shall pay Custodian fees for assets
maintained by Portfolio One outside the United States ("Foreign Assets") and
charges for transactions by Portfolio One outside the United States (including,
without limitation, charges for funds transfers and tax reclaims) in accordance
with such schedule of fees and charges for each country in which Foreign Assets
of Portfolio One are held as Custodian shall from time to time provide to the
Company. Any asset-based fee shall be based
upon the total market value of the applicable Foreign Assets as determined on
the last Business Day of the month for which such fee is charged.
(XXX XXXX-SHORT EQUITY FUND)
DOMESTIC FEES. XXX Xxxx-Short Equity Fund ("Portfolio Two") shall pay
Custodian the following fees for assets maintained by Portfolio Two in the
United States ("Domestic Assets") and the following charges for transactions by
Portfolio Two in the United States, all such fees and charges to be payable
monthly:
(1) an annual fee equal to the sum of (a) 0.02% (two basis points) per
annum of the value of the Domestic Assets held in Portfolio Two's Custody
Account up to $50 million, plus (b) 0.01% (one basis point) per annum of the
amount by which the value of such Domestic Assets is more than $50 million but
less than $200 million, plus (c) 0.005% (one-half basis point) per annum of the
amount by which the value of such Domestic Assets exceeds $200 million, with
each such percentage fee to be based upon the total market value of such
Domestic Assets as determined on the last Business Day of the month for which
such fee is charged;
(2) a transaction charge of $25 for each receive or deliver into or from
such Custody Account of securities in physical form;
(3) a transaction charge for each repurchase transaction in such Custody
Account which represents a cash sweep investment for Portfolio Two's account,
computed on the basis of a 360-day year and for the actual number of days such
repurchase transaction is outstanding at a rate of 0.10% (ten basis points) per
annum on the amount of the purchase price paid by Portfolio Two in such
repurchase transaction;
(4) a charge of $10 for each "free" transfer of funds from such Custody
Account;
(5) an administrative fee for each purchase in such Custody
Account of shares or other interests in a money market or other fund, which
purchase represents a cash sweep investment for Portfolio Two's account,
computed for each day that there is a positive balance in such fund to equal
1/365th of 0.10% (ten basis points) on the amount of such positive balance for
such day; and
(6) a service charge for each holding of securities or other assets of
Portfolio Two that are sold by way of private placement or in such other manner
as to require services by Custodian which in its reasonable judgment are
materially in excess of those ordinarily required for the holding of publicly
traded securities in the United States.
INTERNATIONAL FEES. Portfolio Two shall pay Custodian fees for assets
maintained by Portfolio Two outside the United States ("Foreign Assets") and
charges for transactions by Portfolio Two outside the United States (including,
without limitation, charges for funds transfers and tax reclaims) in accordance
with such schedule of fees and charges for each country in which Foreign Assets
of Portfolio Two are held as Custodian shall from time to time provide to the
Company. Any asset-based fee shall be based upon the total market value of the
applicable Foreign Assets as determined on the last Business Day of the month
for which such fee is charged.
