CUSTODY AGREEMENT
THIS
AGREEMENT,
made and
entered into as of this 30th
day of
May, 2008 by and between TRUST
FOR PROFESSIONAL MANAGERS,
a
Delaware statutory trust (the “Trust” (the “Trust”) on behalf of its series
named in Exhibit
C
hereto,
(each a “Fund”, and collectively the “Funds”), and U.S.
BANK NATIONAL ASSOCIATION,
a
national banking association organized and existing under the laws of the United
States of America with its principal place of business at Cincinnati, Ohio
(the
“Custodian”).
WHEREAS,
the Trust is registered under the Investment Company Act of 1940, as amended
(the “1940 Act”), as an open-end management investment company, and is
authorized to issue shares of beneficial interest in separate series, with
each
such series representing interests in a separate portfolio of securities and
other assets;
WHEREAS,
the Custodian is a bank having the qualifications prescribed in Section 26(a)(1)
of the 1940 Act;
WHEREAS,
the Trust desires to retain the Custodian to act as custodian of the cash and
securities of each series of the Trust listed on Exhibit
C
hereto
(as amended from time to time); and
WHEREAS,
the Board of Trustees of the Trust has delegated to the Custodian the
responsibilities set forth in Rule 17f-5(c) under the 1940 Act and the Custodian
is willing to undertake the responsibilities and serve as the foreign custody
manager for the Company.
NOW,
THEREFORE, in consideration of the promises and mutual covenants herein
contained, and other good and valuable consideration, the receipt of which
is
hereby acknowledged, the parties hereto, intending to be legally bound, do
hereby agree as follows:
ARTICLE
I
CERTAIN
DEFINITIONS
Whenever
used in this Agreement, the following words and phrases shall have the meanings
set forth below unless the context otherwise requires:
1.01 “Authorized
Person”
means
any Officer or other person duly authorized by resolution of the Board of
Trustees to give Oral Instructions and Written Instructions on behalf of the
Fund and named in Exhibit
A
hereto
or in such resolutions of the Board of Trustees, certified by an Officer, as
may
be received by the Custodian from time to time.
1.02 “Board
of Trustees”
shall
mean the trustees from time to time serving under the Trust’s declaration of
trust, as amended from time to time.
1.03 “Book-Entry
System”
shall
mean a federal book-entry system as provided in Subpart O of Treasury Circular
Xx. 000, 00 XXX 306, in Subpart B of 31 CFR Part 350, or in such book-entry
regulations of federal agencies as are substantially in the form of such Subpart
O.
1.04 “Business
Day”
shall
mean any day recognized as a settlement day by The New York Stock Exchange,
Inc., and any other day for which the Trust computes the net asset value of
Shares of the Fund.
1.05 “Eligible
Foreign Custodian”
has the
meaning set forth in Rule 17f-5(a)(1), including a majority-owned or indirect
subsidiary of a U.S. Bank (as defined in Rule 17f-5), a bank holding company
meeting the requirements of an Eligible Foreign Custodian (as set forth in
Rule
17f-5 or by other appropriate action of the SEC), or a foreign branch of a
Bank
(as defined in Section 2(a)(5) of the 0000 Xxx) meeting the requirements of
a
custodian under Section 17(f) of the 1940 Act; the term does not include any
Eligible Securities Depository.
1.06 “Eligible
Securities Depository”
shall
mean a system for the central handling of securities as that term is defined
in
Rule 17f-4 and 17f-7 under the 1940 Act.
1.07 “Foreign
Securities”
means
any of the [Trust’s/Fund’s] investments (including foreign currencies) for which
the primary market is outside the United States and such cash and cash
equivalents as are reasonably necessary to effect the [Trust/Fund’s]
transactions in such investments.
1.08 “Fund
Custody Account”
shall
mean any of the accounts in the name of the Trust, which is provided for in
Section 3.2 below.
1.09 “IRS”
shall
mean the Internal Revenue Service.
1.10 “FINRA”
shall
mean The Financial Industry Regulatory Authority.
1.11 “Officer”
shall
mean the Chairman, President, any Vice President, any Assistant Vice President,
the Secretary, any Assistant Secretary, the Treasurer, or any Assistant
Treasurer of the Trust.
1.12 “Oral
Instructions”
shall
mean instructions orally transmitted to and accepted by the Custodian because
such instructions are: (i) reasonably believed by the Custodian to have been
given by any two Authorized Persons, (ii) recorded and kept among the records
of
the Custodian made in the ordinary course of business, and (iii) orally
confirmed by the Custodian. The Trust shall cause all Oral Instructions to
be
confirmed by Written Instructions prior to the end of the next Business Day.
If
such Written Instructions confirming Oral Instructions are not received by
the
Custodian prior to a transaction, it shall in no way affect the validity of
the
transaction or the authorization thereof by the Trust. If Oral Instructions
vary
from the Written Instructions that purport to confirm them, the Custodian shall
notify the Trust of such variance but such Oral Instructions will govern unless
the Custodian has not yet acted.
1.13 “Proper
Instructions”
shall
mean Oral Instructions or Written Instructions.
1.14 “SEC”
shall
mean the Securities and Exchange Commission.
2
1.15 “Securities”
shall
include, without limitation, common and preferred stocks, bonds, call options,
put options, debentures, notes, bank certificates of deposit, bankers’ acceptances,
mortgage-backed securities or other obligations, and any certificates, receipts,
warrants or other instruments or documents representing rights to receive,
purchase or subscribe for the same, or evidencing or representing any other
rights or interests therein, or any similar property or assets that the
Custodian or its agents have the facilities to clear and service.
1.16 “Securities
Depository”
shall
mean The Depository Trust Company and any other clearing agency registered
with
the SEC under Section 17A of the Securities Exchange Act of 1934, as amended
(the “1934 Act”), which acts as a system for the central handling of Securities
where all Securities of any particular class or series of an issuer deposited
within the system are treated as fungible and may be transferred or pledged
by
bookkeeping entry without physical delivery of the Securities.
1.17 “Shares”
shall
mean, with respect to a Fund, the units of beneficial interest issued by the
Trust on account of the Fund.
1.18 “Sub-Custodian”
shall
mean and include (i) any branch of a “U.S. bank,” as that term is defined in
Rule 17f-5 under the 1940 Act, and (ii) any “Eligible Foreign Custodian” having
a contract with the Custodian which the Custodian has determined will provide
reasonable care of assets of the Fund based on the standards specified in
Section 3.3 below. Such contract shall be in writing and shall include
provisions that provide: (i) for indemnification or insurance arrangements
(or
any combination of the foregoing) such that the Fund will be adequately
protected against the risk of loss of assets held in accordance with such
contract; (ii) that the Foreign Securities will not be subject to any right,
charge, security interest, lien or claim of any kind in favor of the
Sub-Custodian or its creditors except a claim of payment for their safe custody
or administration, in the case of cash deposits, liens or rights in favor of
creditors of the Sub-Custodian arising under bankruptcy, insolvency, or similar
laws; (iii) that beneficial ownership for the Foreign Securities will be freely
transferable without the payment of money or value other than for safe custody
or administration; (iv) that adequate records will be maintained identifying
the
assets as belonging to the Fund or as being held by a third party for the
benefit of the Fund; (v) that the Fund’s independent public accountants will be
given access to those records or confirmation of the contents of those records;
and (vi) that the Fund will receive periodic reports with respect to the
safekeeping of the Fund’s assets, including, but not limited to, notification of
any transfer to or from a Fund’s account or a third party account containing
assets held for the benefit of the Fund. Such contract may contain, in lieu
of
any or all of the provisions specified in (i)-(vi) above, such other provisions
that the Custodian determines will provide, in their entirety, the same or
a
greater level of care and protection for Fund assets as the specified
provisions.
1.19 “Written
Instructions”
shall
mean (i) written communications actually received by the Custodian and signed
by
any two Authorized Persons, (ii) communications by telex or any other such
system from one or more persons reasonably believed by the Custodian to be
Authorized Persons, or (iii) communications between electro-mechanical or
electronic devices provided that the use of such devices and the procedures
for
the use thereof shall have been approved by resolutions of the Board of
Trustees, a copy of which, certified by an Officer, shall have been delivered
to
the Custodian.
3
ARTICLE
II.
APPOINTMENT
OF CUSTODIAN
2.01 Appointment.
The
Trust hereby appoints the Custodian as custodian of all Securities and cash
owned by or in the possession of the Fund at any time during the period of
this
Agreement, on the terms and conditions set forth in this Agreement, and the
Custodian hereby accepts such appointment and agrees to perform the services
and
duties set forth in this Agreement. The Trust hereby delegates to the Custodian,
subject to Rule 17f-5(b), the responsibilities with respect to the Fund’s
Foreign Securities, and the Custodian hereby accepts such delegation as foreign
custody manager with respect to the Fund. The services and duties of the
Custodian shall be confined to those matters expressly set forth herein, and
no
implied duties are assumed by or may be asserted against the Custodian
hereunder.
2.02 Documents
to be Furnished.
The
following documents, including any amendments thereto, will be provided
contemporaneously with the execution of the Agreement to the Custodian by the
Trust:
| (a) |
A
copy of the Trust’s declaration of trust, certified by the
Secretary;
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| (b) |
A
copy of the Trust’s bylaws, certified by the
Secretary;
|
| (c) |
A
copy of the resolution of the Board of Trustees of the Trust appointing
the Custodian, certified by the
Secretary;
|
| (d) |
A
copy of the current prospectus of the Fund (the
“Prospectus”);
|
| (e) |
A
certification of the Chairman or the President and the Secretary
of the
Trust setting forth the names and signatures of the current Officers
of
the Trust and other Authorized Persons;
and
|
| (f) |
An
executed authorization required by the Shareholder Communications
Act of
1985, attached hereto as Exhibit
E.
|
2.03 Notice
of Appointment of Transfer Agent.
The
Trust agrees to notify the Custodian in writing of the appointment, termination
or change in appointment of any transfer agent of the Fund.
ARTICLE
III.
CUSTODY
OF CASH AND SECURITIES
3.01
Segregation.
All
Securities and non-cash property held by the Custodian for the account of the
Fund (other than Securities maintained in a Securities Depository, Eligible
Securities Depository or Book-Entry System) shall be physically segregated
from
other Securities and non-cash property in the possession of the Custodian
(including the Securities and non-cash property of the other series of the
Trust, if applicable) and shall be identified as subject to this
Agreement.
4
3.03 Appointment
of Agents.
|
(a)
|
In
its discretion, the Custodian may appoint one or more Sub-Custodians
to
establish and maintain arrangements with (i) Eligible Securities
Depositories or (ii) Eligible Foreign Custodians who are members
of the
Sub-Custodian’s network to hold Securities and cash of the Fund and to
carry out such other provisions of this Agreement as it may determine;
provided, however, that the appointment of any such agents and maintenance
of any Securities and cash of the Fund shall be at the Custodian’s expense
and shall not relieve the Custodian of any of its obligations or
liabilities under this Agreement. The Custodian shall be liable for
the
actions of any Sub-Custodians (regardless of whether assets are maintained
in the custody of a Sub-Custodian, a member of its network or an
Eligible
Securities Depository) appointed by it as if such actions had been
done by
the Custodian.
|
|
(b)
|
If,
after the initial appointment of Sub-Custodians by the Board of Trustees
in connection with this Agreement, the Custodian wishes to appoint
other
Sub-Custodians to hold property of the Fund, it will so notify the
Trust
and make the necessary determinations as to any such new Sub-Custodian’s
eligibility under Rule 17f-5 under the 1940
Act.
|
|
(c)
|
In
performing its delegated responsibilities as foreign custody manager
to
place or maintain the Fund’s assets with a Sub-Custodian, the Custodian
will determine that the Fund’s assets will be subject to reasonable care,
based on the standards applicable to custodians in the country in
which
the Fund’s assets will be held by that Sub-Custodian, after considering
all factors relevant to safekeeping of such assets, including, without
limitation the factors specified in Rule
17f-5(c)(1).
|
|
(d)
|
The
agreement between the Custodian and each Sub-Custodian acting hereunder
shall contain the required provisions set forth in Rule 17f-5(c)(2)
under
the 1940 Act.
|
|
(e)
|
At
the end of each calendar quarter, the Custodian shall provide written
reports notifying the Board of Trustees of the withdrawal or placement
of
the Securities and cash of the Fund with a Sub-Custodian and of any
material changes in the Fund’s arrangements. Such reports shall include an
analysis of the custody risks associated with maintaining assets
with any
Eligible Securities Depositories. The Custodian shall promptly take
such
steps as may be required to withdraw assets of the Fund from any
Sub-Custodian arrangement that has ceased to meet the requirements
of Rule
17f-5 or Rule 17f-7 under the 1940 Act, as applicable.
|
|
(f)
|
With
respect to its responsibilities under this Section 3.3, the Custodian
hereby warrants to the Trust that it agrees to exercise reasonable
care,
prudence and diligence such as a person having responsibility for
the
safekeeping of property of the Fund. The Custodian further warrants
that
the Fund’s assets will be subject to reasonable care if maintained with a
Sub-Custodian, after considering all factors relevant to the safekeeping
of such assets, including, without limitation: (i) the Sub-Custodian’s
practices, procedures, and internal controls for certificated securities
(if applicable), its method of keeping custodial records, and its
security
and data protection practices; (ii) whether the Sub-Custodian has
the
requisite financial strength to provide reasonable care for Fund
assets;
(iii) the Sub-Custodian’s general reputation and standing and, in the case
of a Securities Depository, the Securities Depository’s operating history
and number of participants; and (iv) whether the Fund will have
jurisdiction over and be able to enforce judgments against the
Sub-Custodian, such as by virtue of the existence of any offices
of the
Sub-Custodian in the United States or the Sub-Custodian’s consent to
service of process in the United
States.
|
5
|
(g)
|
The
Custodian shall establish a system or ensure that its Sub-Custodian
has
established a system to monitor on a continuing basis (i) the
appropriateness of maintaining the Fund’s assets with a Sub-Custodian or
Eligible Foreign Custodians who are members of a Sub-Custodian’s network;
(ii) the performance of the contract governing the Fund’s arrangements
with such Sub-Custodian or Eligible Foreign Custodian’s members of a
Sub-Custodian’s network; and (iii) the custody risks of maintaining assets
with an Eligible Securities Depository. The Custodian must promptly
notify
the Fund or its investment adviser of any material change in these
risks.
|
|
(h)
|
The
Custodian shall use reasonable commercial efforts to collect all
income
and other payments with respect to Foreign Securities to which the
Fund
shall be entitled and shall credit such income, as collected, to
the
Trust. In the event that extraordinary measures are required to collect
such income, the Trust and Custodian shall consult as to the measurers
and
as to the compensation and expenses of the Custodian relating to
such
measures.
|
3.04 Delivery
of Assets to Custodian.
The
Trust shall deliver, or cause to be delivered, to the Custodian all of the
Fund’s Securities, cash and other investment assets, including (i) all payments
of income, payments of principal and capital distributions received by the
Fund
with respect to such Securities, cash or other assets owned by the Fund at
any
time during the period of this Agreement, and (ii) all cash received by the
Fund
for the issuance of Shares. The Custodian shall not be responsible for such
Securities, cash or other assets until actually received by it.
3.05 Securities
Depositories and Book-Entry Systems.
The
Custodian may deposit and/or maintain Securities of the Fund in a Securities
Depository or in a Book-Entry System, subject to the following provisions:
|
(a)
|
The
Custodian, on an on-going basis, shall deposit in a Securities
Depository
or Book-Entry System all Securities eligible for deposit therein
and shall
make use of such Securities Depository or Book-Entry System to the
extent
possible and practical in connection with its performance hereunder,
including, without limitation, in connection with settlements of
purchases
and sales of Securities, loans of Securities, and deliveries and
returns
of collateral consisting of
Securities.
|
|
(b)
|
Securities
of the Fund kept in a Book-Entry System or Securities Depository
shall be
kept in an account (“Depository Account”) of the Custodian in such
Book-Entry System or Securities Depository which includes only assets
held
by the Custodian as a fiduciary, custodian or otherwise for
customers.
|
6
|
(c)
|
The
records of the Custodian with respect to Securities of the Fund maintained
in a Book-Entry System or Securities Depository shall, by book-entry,
identify such Securities as belonging to the
Fund.
|
|
(d)
|
If
Securities purchased by the Fund are to be held in a Book-Entry System
or
Securities Depository, the Custodian shall pay for such Securities
upon
(i) receipt of advice from the Book-Entry System or Securities Depository
that such Securities have been transferred to the Depository Account,
and
(ii) the making of an entry on the records of the Custodian to reflect
such payment and transfer for the account of the Fund. If Securities
sold
by the Fund are held in a Book-Entry System or Securities Depository,
the
Custodian shall transfer such Securities upon (i) receipt of advice
from
the Book-Entry System or Securities Depository that payment for such
Securities has been transferred to the Depository Account, and (ii)
the
making of an entry on the records of the Custodian to reflect such
transfer and payment for the account of the
Fund.
|
|
(e)
|
The
Custodian shall provide the Trust with copies of any report (obtained
by
the Custodian from a Book-Entry System or Securities Depository in
which
Securities of the Fund are kept) on the internal accounting controls
and
procedures for safeguarding Securities deposited in such Book-Entry
System
or Securities Depository.
|
|
(f)
|
Notwithstanding
anything to the contrary in this Agreement, the Custodian shall be
liable
to the Trust for any loss or damage to the Fund resulting from (i)
the use
of a Book-Entry System or Securities Depository by reason of any
negligence or willful misconduct on the part of the Custodian or
any
Sub-Custodian, or (ii) failure of the Custodian or any Sub-Custodian
to
enforce effectively such rights as it may have against a Book-Entry
System
or Securities Depository. At its election, the Trust shall be subrogated
to the rights of the Custodian with respect to any claim against
a
Book-Entry System or Securities Depository or any other person from
any
loss or damage to the Fund arising from the use of such Book-Entry
System
or Securities Depository, if and to the extent that the Fund has
not been
made whole for any such loss or
damage.
|
|
(g)
|
With
respect to its responsibilities under this Section 3.5 and pursuant
to Rule 17f-4 under the 1940 Act, the Custodian hereby warrants to
the Trust that it agrees to (i) exercise due care in accordance with
reasonable commercial standards in discharging its duty as a securities
intermediary to obtain and thereafter maintain such assets,
(ii) provide, promptly upon request by the Trust, such reports as are
available concerning the Custodian’s internal accounting controls and
financial strength, and (iii) require any Sub-Custodian to exercise
due care in accordance with reasonable commercial standards in discharging
its duty as a securities intermediary to obtain and thereafter maintain
assets corresponding to the security entitlements of its entitlement
holders.
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3.06 Disbursement
of Moneys from Fund Custody Account.
Upon
receipt of Proper Instructions, the Custodian shall disburse moneys from the
Fund Custody Account but only in the following cases:
|
(a)
|
For
the purchase of Securities for the Fund but only in accordance with
Section 4.1 of this Agreement and only (i) in the case of Securities
(other than options on Securities, futures contracts and options
on
futures contracts), against the delivery to the Custodian (or any
Sub-Custodian) of such Securities registered as provided in Section
3.9
below or in proper form for transfer, or if the purchase of such
Securities is effected through a Book-Entry System or Securities
Depository, in accordance with the conditions set forth in Section
3.5
above; (ii) in the case of options on Securities, against delivery
to the
Custodian (or any Sub-Custodian) of such receipts as are required
by the
customs prevailing among dealers in such options; (iii) in the case
of
futures contracts and options on futures contracts, against delivery
to
the Custodian (or any Sub-Custodian) of evidence of title thereto
in favor
of the Fund or any nominee referred to in Section 3.9 below; and
(iv) in
the case of repurchase or reverse repurchase agreements entered into
between the Trust and a bank which is a member of the Federal Reserve
System or between the Trust and a primary dealer in U.S. Government
securities, against delivery of the purchased Securities either in
certificate form or through an entry crediting the Custodian’s account at
a Book-Entry System or Securities Depository with such
Securities;
|
7
|
(b)
|
In
connection with the conversion, exchange or surrender, as set forth
in
Section 3.7(f) below, of Securities owned by the
Fund;
|
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(c)
|
For
the payment of any dividends or capital gain distributions declared
by the
Fund;
|
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(d)
|
In
payment of the redemption price of Shares as provided in Section
5.1
below;
|
|
(e)
|
For
the payment of any expense or liability incurred by the Fund, including,
but not limited to, the following payments for the account of the
Fund:
interest; taxes; administration, investment advisory, accounting,
auditing, transfer agent, custodian, director and legal fees; and
other
operating expenses of the Fund; in all cases, whether or not such
expenses
are to be in whole or in part capitalized or treated as deferred
expenses;
|
|
(f)
|
For
transfer in accordance with the provisions of any agreement among
the
Trust, the Custodian and a broker-dealer registered under the 1934
Act and
a member of FINRA, relating to compliance with rules of the Options
Clearing Corporation and of any registered national securities exchange
(or of any similar organization or organizations) regarding escrow
or
other arrangements in connection with transactions by the
Fund;
|
|
(g)
|
For
transfer in accordance with the provisions of any agreement among
the
Trust, the Custodian and a futures commission merchant registered
under
the Commodity Exchange Act, relating to compliance with the rules
of the
Commodity Futures Trading Commission and/or any contract market (or
any
similar organization or organizations) regarding account deposits
in
connection with transactions by the
Fund;
|
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(h)
|
For
the funding of any uncertificated time deposit or other interest-bearing
account with any banking institution (including the Custodian), which
deposit or account has a term of one year or less;
and
|
|
(i)
|
For
any other proper purpose, but only upon receipt, in addition to Proper
Instructions, of a copy of a resolution of the Board of Trustees,
certified by an Officer, specifying the amount and purpose of such
payment, declaring such purpose to be a proper corporate purpose,
and
naming the person or persons to whom such payment is to be
made.
|
8
3.07 Delivery
of Securities from Fund Custody Account.
Upon
receipt of Proper Instructions, the Custodian shall release and deliver, or
cause the Sub-Custodian to release and deliver, Securities from the Fund Custody
Account but only in the following cases:
|
(a)
|
Upon
the sale of Securities for the account of the Fund but only against
receipt of payment therefor in cash, by certified or cashiers check
or
bank credit;
|
|
(b)
|
In
the case of a sale effected through a Book-Entry System or Securities
Depository, in accordance with the provisions of Section 3.5
above;
|
|
(c)
|
To
an offeror’s depository agent in connection with tender or other similar
offers for Securities of the Fund; provided that, in any such case,
the
cash or other consideration is to be delivered to the
Custodian;
|
|
(d)
|
To
the issuer thereof or its agent (i) for transfer into the name of
the
Fund, the Custodian or any Sub-Custodian, or any nominee or nominees
of
any of the foregoing, or (ii) for exchange for a different number
of
certificates or other evidence representing the same aggregate face
amount
or number of units; provided that, in any such case, the new Securities
are to be delivered to the
Custodian;
|
|
(e)
|
To
the broker selling the Securities, for examination in accordance
with the
“street delivery” custom;
|
|
(f)
|
For
exchange or conversion pursuant to any plan of merger, consolidation,
recapitalization, reorganization or readjustment of the issuer of
such
Securities, or pursuant to provisions for conversion contained in
such
Securities, or pursuant to any deposit agreement, including surrender
or
receipt of underlying Securities in connection with the issuance
or
cancellation of depository receipts; provided that, in any such case,
the
new Securities and cash, if any, are to be delivered to the
Custodian;
|
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(g)
|
Upon
receipt of payment therefor pursuant to any repurchase or reverse
repurchase agreement entered into by the
Fund;
|
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(h)
|
In
the case of warrants, rights or similar Securities, upon the exercise
thereof, provided that, in any such case, the new Securities and
cash, if
any, are to be delivered to the
Custodian;
|
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(i)
|
For
delivery in connection with any loans of Securities of the Fund,
but only
against receipt of such collateral as the Trust shall have specified
to
the Custodian in Proper
Instructions;
|
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(j)
|
For
delivery as security in connection with any borrowings by the Fund
requiring a pledge of assets by the Trust, but only against receipt
by the
Custodian of the amounts borrowed;
|
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(k)
|
Pursuant
to any authorized plan of liquidation, reorganization, merger,
consolidation or recapitalization of the
Trust;
|
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(l)
|
For
delivery in accordance with the provisions of any agreement among
the
Trust, the Custodian and a broker-dealer registered under the 1934
Act and
a member of FINRA, relating to compliance with the rules of the Options
Clearing Corporation and of any registered national securities exchange
(or of any similar organization or organizations) regarding escrow
or
other arrangements in connection with transactions by the
Fund;
|
9
|
(m)
|
For
delivery in accordance with the provisions of any agreement among
the
Trust, the Custodian and a futures commission merchant registered
under
the Commodity Exchange Act, relating to compliance with the rules
of the
Commodity Futures Trading Commission and/or any contract market (or
any
similar organization or organizations) regarding account deposits
in
connection with transactions by the Fund;
|
|
(n)
|
For
any other proper corporate purpose, but only upon receipt, in addition
to
Proper Instructions, of a copy of a resolution of the Board of Trustees,
certified by an Officer, specifying the Securities to be delivered,
setting forth the purpose for which such delivery is to be made,
declaring
such purpose to be a proper corporate purpose, and naming the person
or
persons to whom delivery of such Securities shall be made;
or
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|
(o)
|
To
brokers, clearing banks or other clearing agents for examination
or trade
execution in accordance with market custom; provided that in any
such case
the Custodian shall have no responsibility or liability for any loss
arising from the delivery of such securities prior to receiving payment
for such securities except as may arise from the Custodian’s own
negligence or willful misconduct.
|
3.08 Actions
Not Requiring Proper Instructions.
Unless
otherwise instructed by the Trust, the Custodian shall with respect to all
Securities held for the Fund:
|
(a)
|
Subject
to Section 9.4 below, collect on a timely basis all income and other
payments to which the Fund is entitled either by law or pursuant
to custom
in the securities business;
|
|
(b)
|
Present
for payment and, subject to Section 9.4 below, collect on a timely
basis
the amount payable upon all Securities which may mature or be called,
redeemed, or retired, or otherwise become
payable;
|
|
(c)
|
Endorse
for collection, in the name of the Fund, checks, drafts and other
negotiable instruments;
|
|
(d)
|
Surrender
interim receipts or Securities in temporary form for Securities in
definitive form;
|
|
(e)
|
Execute,
as custodian, any necessary declarations or certificates of ownership
under the federal income tax laws or the laws or regulations of any
other
taxing authority now or hereafter in effect, and prepare and submit
reports to the IRS and the Trust at such time, in such manner and
containing such information as is prescribed by the
IRS;
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|
(f)
|
Hold
for the Fund, either directly or, with respect to Securities held
therein,
through a Book-Entry System or Securities Depository, all rights
and
similar Securities issued with respect to Securities of the Fund;
and
|
|
(g)
|
In
general, and except as otherwise directed in Proper Instructions,
attend
to all non-discretionary details in connection with the sale, exchange,
substitution, purchase, transfer and other dealings with Securities
and
other assets of the Fund.
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10
3.09 Registration
and Transfer of Securities.
All
Securities held for the Fund that are issued or issuable only in bearer form
shall be held by the Custodian in that form, provided that any such Securities
shall be held in a Book-Entry System if eligible therefor. All other Securities
held for the Fund may be registered in the name of the Fund, the Custodian,
a
Sub-Custodian or any nominee thereof, or in the name of a Book-Entry System,
Securities Depository or any nominee of either thereof. The records of the
Custodian with respect to foreign securities of the Fund that are maintained
with a Sub-Custodian in an account that is identified as belonging to the
Custodian for the benefit of its customers shall identify those securities
as
belonging to the Fund. The Trust shall furnish to the Custodian appropriate
instruments to enable the Custodian to hold or deliver in proper form for
transfer, or to register in the name of any of the nominees referred to above
or
in the name of a Book-Entry System or Securities Depository, any Securities
registered in the name of the Fund.
3.10 Records.
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(a)
|
The
Custodian shall maintain complete and accurate records with respect
to
Securities, cash or other property held for the Fund, including (i)
journals or other records of original entry containing an itemized
daily
record in detail of all receipts and deliveries of Securities and
all
receipts and disbursements of cash; (ii) ledgers (or other records)
reflecting (A) Securities in transfer, (B) Securities in physical
possession, (C) monies and Securities borrowed and monies and Securities
loaned (together with a record of the collateral therefor and
substitutions of such collateral), (D) dividends and interest received,
and (E) dividends receivable and interest receivable; (iii) canceled
checks and bank records related thereto; and (iv) all records relating
to
its activities and obligations under this Agreement. The Custodian
shall
keep such other books and records of the Fund as the Trust shall
reasonably request, or as may be required by the 1940 Act, including, but
not limited to, Section 31 of the 1940 Act and Rule 31a-2 promulgated
thereunder.
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|
(b)
|
All
such books and records maintained by the Custodian shall (i) be maintained
in a form acceptable to the Trust and in compliance with the rules
and
regulations of the SEC, (ii) be the property of the Trust and at
all times
during the regular business hours of the Custodian be made available
upon
request for inspection by duly authorized officers, employees or
agents of
the Trust and employees or agents of the SEC, and (iii) if required
to be
maintained by Rule 31a-1 under the 1940 Act, be preserved for the
periods
prescribed in Rules 31a-1 and 31a-2 under the 1940
Act.
|
3.11 Fund
Reports by Custodian.
The
Custodian shall furnish the Trust with a daily activity statement and a summary
of all transfers to or from each Fund Custody Account on the day following
such
transfers. At least monthly, the Custodian shall furnish the Trust with a
detailed statement of the Securities and moneys held by the Custodian and the
Sub-Custodians for the Fund under this Agreement.
3.12 Other
Reports by Custodian.
As the
Trust may reasonably request from time to time, the Custodian shall provide
the
Trust with reports on the internal accounting controls and procedures for
safeguarding Securities which are employed by the Custodian or any
Sub-Custodian.
3.13 Proxies
and Other Materials.
The
Custodian shall cause all proxies relating to Securities which are not
registered in the name of the Fund to be promptly executed by the registered
holder of such Securities, without indication of the manner in which such
proxies are to be voted, and shall promptly deliver to the Trust such proxies,
all proxy soliciting materials and all notices relating to such Securities.
With
respect to the foreign Securities, the Custodian will use reasonable commercial
efforts to facilitate the exercise of voting and other shareholder rights,
subject to the laws, regulations and practical constraints that may exist in
the
country where such securities are issued. The Trust acknowledges that local
conditions, including lack of regulation, onerous procedural obligations, lack
of notice and other factors may have the effect of severely limiting the ability
of the Trust to exercise shareholder rights.
11
3.14 Information
on Corporate Actions.
The
Custodian shall promptly deliver to the Trust all information received by the
Custodian and pertaining to Securities being held by the Fund with respect
to
optional tender or exchange offers, calls for redemption or purchase, or
expiration of rights as described in the Standards of Service Guide attached
as
Exhibit
B.
If the
Trust desires to take action with respect to any tender offer, exchange offer
or
other similar transaction, the Trust shall notify the Custodian at least three
Business Days prior to the date on which the Custodian is to take such action.
The Trust will provide or cause to be provided to the Custodian all relevant
information for any Security which has unique put/option provisions at least
three Business Days prior to the beginning date of the tender period.
ARTICLE
IV.
PURCHASE
AND SALE OF INVESTMENTS OF THE FUND
4.01 Purchase
of Securities.
Promptly upon each purchase of Securities for the Fund, Written Instructions
shall be delivered to the Custodian, specifying (i) the name of the issuer
or
writer of such Securities, and the title or other description thereof, (ii)
the
number of shares, principal amount (and accrued interest, if any) or other
units
purchased, (iii) the date of purchase and settlement, (iv) the purchase price
per unit, (v) the total amount payable upon such purchase, and (vi) the name
of
the person to whom such amount is payable. The Custodian shall upon receipt
of
such Securities purchased by the Fund pay out of the moneys held for the account
of the Fund the total amount specified in such Written Instructions to the
person named therein. The Custodian shall not be under any obligation to pay
out
moneys to cover the cost of a purchase of Securities for the Fund, if in the
Fund Custody Account there is insufficient cash available to the Fund for which
such purchase was made.
4.02 Liability
for Payment in Advance of Receipt of Securities Purchased.
In any
and every case where payment for the purchase of Securities for the Fund is
made
by the Custodian in advance of receipt of the Securities purchased and in the
absence of specified Written Instructions to so pay in advance, the Custodian
shall be liable to the Fund for such payment.
4.03 Sale
of Securities.
Promptly upon each sale of Securities by the Fund, Written Instructions shall
be
delivered to the Custodian, specifying (i) the name of the issuer or writer
of
such Securities, and the title or other description thereof, (ii) the number
of
shares, principal amount (and accrued interest, if any), or other units sold,
(iii) the date of sale and settlement, (iv) the sale price per unit, (v) the
total amount payable upon such sale, and (vi) the person to whom such Securities
are to be delivered. Upon receipt of the total amount payable to the Fund as
specified in such Written Instructions, the Custodian shall deliver such
Securities to the person specified in such Written Instructions. Subject to
the
foregoing, the Custodian may accept payment in such form as shall be
satisfactory to it, and may deliver Securities and arrange for payment in
accordance with the customs prevailing among dealers in Securities.
12
4.04 Delivery
of Securities Sold.
Notwithstanding Section 4.3 above or any other provision of this Agreement,
the
Custodian, when instructed to deliver Securities against payment, shall be
entitled, if in accordance with generally accepted market practice, to deliver
such Securities prior to actual receipt of final payment therefor. In any such
case, the Fund shall bear the risk that final payment for such Securities may
not be made or that such Securities may be returned or otherwise held or
disposed of by or through the person to whom they were delivered, and the
Custodian shall have no liability for any for the foregoing.
4.05 Payment
for Securities Sold.
In its
sole discretion and from time to time, the Custodian may credit the Fund Custody
Account, prior to actual receipt of final payment thereof, with (i) proceeds
from the sale of Securities which it has been instructed to deliver against
payment, (ii) proceeds from the redemption of Securities or other assets of
the
Fund, and (iii) income from cash, Securities or other assets of the Fund. Any
such credit shall be conditional upon actual receipt by Custodian of final
payment and may be reversed if final payment is not actually received in full.
The Custodian may, in its sole discretion and from time to time, permit the
Fund
to use funds so credited to the Fund Custody Account in anticipation of actual
receipt of final payment. Any such funds shall be repayable immediately upon
demand made by the Custodian at any time prior to the actual receipt of all
final payments in anticipation of which funds were credited to the Fund Custody
Account.
4.06 Advances
by Custodian for Settlement.
The
Custodian may, in its sole discretion and from time to time, advance funds
to
the Trust to facilitate the settlement of a Fund’s transactions in the Fund
Custody Account. Any such advance shall be repayable immediately upon demand
made by Custodian.
ARTICLE
V.
REDEMPTION
OF FUND SHARES
5.01 Transfer
of Funds.
From
such funds as may be available for the purpose in the relevant Fund Custody
Account, and upon receipt of Proper Instructions specifying that the funds
are
required to redeem Shares of the Fund, the Custodian shall wire each amount
specified in such Proper Instructions to or through such bank or broker-dealer
as the Trust may designate.
5.02 No
Duty Regarding Paying Banks.
Once
the Custodian has wired amounts to a bank or broker-dealer pursuant to
Section 5.1 above, the Custodian shall not be under any obligation to
effect any further payment or distribution by such bank or
broker-dealer.
13
ARTICLE
VI.
SEGREGATED
ACCOUNTS
Upon
receipt of Proper Instructions, the Custodian shall establish and maintain
a
segregated account or accounts for and on behalf of the Fund, into which account
or accounts may be transferred cash and/or Securities, including Securities
maintained in a Depository Account:
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(a)
|
in
accordance with the provisions of any agreement among
the Trust, the Custodian and a broker-dealer registered under the
1934 Act
and a member of FINRA (or any futures commission merchant registered
under
the Commodity Exchange Act), relating to compliance with the rules
of the
Options Clearing Corporation and of any registered national securities
exchange (or the Commodity Futures Trading Commission or any registered
contract market), or of any similar organization or organizations,
regarding escrow or other arrangements in connection with transactions
by
the Fund;
|
|
(b)
|
for
purposes of segregating cash or Securities in connection with securities
options purchased or written by the Fund or in connection with financial
futures contracts (or options thereon) purchased or sold by the
Fund;
|
|
(c)
|
which
constitute collateral for loans of Securities made by the
Fund;
|
|
(d)
|
for
purposes of compliance by the Fund with requirements under the 1940
Act
for the maintenance of segregated accounts by registered investment
companies in connection with reverse repurchase agreements and
when-issued, delayed delivery and firm commitment transactions;
and
|
|
(e)
|
for
other proper corporate purposes, but only upon receipt of, in addition
to
Proper Instructions, a certified copy of a resolution of the Board
of
Trustees, certified by an Officer, setting forth the purpose or purposes
of such segregated account and declaring such purposes to be proper
corporate purposes.
|
Each
segregated account established under this Article VI shall be established and
maintained for the Fund only. All Proper Instructions relating to a segregated
account shall specify the Fund.
ARTICLE
VII.
COMPENSATION
OF CUSTODIAN
7.01 Compensation.
The
Custodian shall be compensated for providing the services set forth in this
Agreement in accordance with the fee schedule set forth on Exhibit
D
hereto
(as amended from time to time). The Custodian shall also be compensated for
such
out-of-pocket expenses (e.g., telecommunication charges, postage and delivery
charges, and reproduction charges) as are reasonably incurred by the Custodian
in performing its duties hereunder. The Trust shall pay all such fees and
reimbursable expenses within 30 calendar days following receipt of the billing
notice, except for any fee or expense subject to a good faith dispute. The
Trust
shall notify the Custodian in writing within 30 calendar days following receipt
of each invoice if the Trust is disputing any amounts in good faith. The Trust
shall pay such disputed amounts within 10 calendar days of the day on which
the
parties agree to the amount to be paid. With the exception of any fee or expense
the Trust is disputing in good faith as set forth above, unpaid invoices shall
accrue a finance charge of 1½% per month after the due date. Notwithstanding
anything to the contrary, amounts owed by the Trust to the Custodian shall
only
be paid out of the assets and property of the particular Fund involved.
14
7.02 Overdrafts.
The
Trust is responsible for maintaining an appropriate level of short term cash
investments to accommodate cash outflows. The Trust may obtain formal line
of
credit for potential overdrafts of its custody account. In the event of an
overdraft or in the event the line of credit is insufficient to cover an
overdraft, the overdraft amount or the overdraft amount that exceeds the line
of
credit will be charged in accordance with the fee schedule set forth on Exhibit
D hereto (as amended from time to time)
ARTICLE
VIII.
REPRESENTATIONS
AND WARRANTIES
8.01 Representations
and Warranties of the Trust.
The
Trust hereby represents and warrants to the Custodian, which representations
and
warranties shall be deemed to be continuing throughout the term of this
Agreement, that:
|
(a)
|
It
is duly organized and existing under the laws of the jurisdiction
of its
organization, with full power to carry on its business as now conducted,
to enter into this Agreement and to perform its obligations
hereunder;
|
|
(b)
|
This
Agreement has been duly authorized, executed and delivered by the
Trust in
accordance with all requisite action and constitutes a valid and
legally
binding obligation of the Trust, enforceable in accordance with its
terms,
subject to bankruptcy, insolvency, reorganization, moratorium and
other
laws of general application affecting the rights and remedies of
creditors
and secured parties; and
|
|
(c)
|
It
is conducting its business in compliance in all material respects
with all
applicable laws and regulations, both state and federal, and has
obtained
all regulatory approvals necessary to carry on its business as now
conducted; there is no statute, rule, regulation, order or judgment
binding on it and no provision of its charter, bylaws or any contract
binding it or affecting its property which would prohibit its execution
or
performance of this Agreement.
|
8.02 Representations
and Warranties of the Custodian.
The
Custodian hereby represents and warrants to the Trust, which representations
and
warranties shall be deemed to be continuing throughout the term of this
Agreement, that:
|
(a)
|
It
is duly organized and existing under the laws of the jurisdiction
of its
organization, with full power to carry on its business as now conducted,
to enter into this Agreement and to perform its obligations
hereunder;
|
|
(b)
|
It
is a U.S. Bank as defined in section (a)(7) of Rule
17f-5.
|
15
|
(c)
|
This
Agreement has been duly authorized, executed and delivered by the
Custodian in accordance with all requisite action and constitutes
a valid
and legally binding obligation of the Custodian, enforceable in accordance
with its terms, subject to bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting the rights
and
remedies of creditors and secured parties;
and
|
|
(d)
|
It
is conducting its business in compliance in all material respects
with all
applicable laws and regulations, both state and federal, and has
obtained
all regulatory approvals necessary to carry on its business as now
conducted; there is no statute, rule, regulation, order or judgment
binding on it and no provision of its charter, bylaws or any contract
binding it or affecting its property which would prohibit its execution
or
performance of this Agreement.
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ARTICLE
IX.
CONCERNING
THE CUSTODIAN
9.01 Standard
of Care.
The
Custodian shall exercise reasonable care in the performance of its duties under
this Agreement. The Custodian shall not be liable for any error of judgment
or
mistake of law or for any loss suffered by the Trust in connection with its
duties under this Agreement, except a loss arising out of or relating to the
Custodian’s (or a Sub-Custodian’s) refusal or failure to comply with the terms
of this Agreement (or any sub-custody agreement) or from its (or a
Sub-Custodian’s) bad faith, negligence or willful misconduct in the performance
of its duties under this Agreement (or any sub-custody agreement). The Custodian
shall be entitled to rely on and may act upon advice of counsel on all matters,
and shall be without liability for any action reasonably taken or omitted
pursuant to such advice. The Custodian shall promptly notify the Trust of any
action taken or omitted by the Custodian pursuant to advice of
counsel.
9.02 Actual
Collection Required.
The
Custodian shall not be liable for, or considered to be the custodian of, any
cash belonging to the Fund or any money represented by a check, draft or other
instrument for the payment of money, until the Custodian or its agents actually
receive such cash or collect on such instrument.
9.03 No
Responsibility for Title, etc.
So long
as and to the extent that it is in the exercise of reasonable care, the
Custodian shall not be responsible for the title, validity or genuineness of
any
property or evidence of title thereto received or delivered by it pursuant
to
this Agreement.
9.04 Limitation
on Duty to Collect.
Custodian shall not be required to enforce collection, by legal means or
otherwise, of any money or property due and payable with respect to Securities
held for the Fund if such Securities are in default or payment is not made
after
due demand or presentation.
9.05 Reliance
Upon Documents and Instructions.
The
Custodian shall be entitled to rely upon any certificate, notice or other
instrument in writing received by it and reasonably believed by it to be
genuine. The Custodian shall be entitled to rely upon any Oral Instructions
and
any Written Instructions actually received by it pursuant to this
Agreement.
9.06 Cooperation.
The
Custodian shall cooperate with and supply necessary information to the entity
or
entities appointed by the Trust to keep the books of account of the Fund and/or
compute the value of the assets of the Fund. The Custodian shall take all such
reasonable actions as the Trust may from time to time request to enable the
Trust to obtain, from year to year, favorable opinions from the Trust’s
independent accountants with respect to the Custodian’s activities hereunder in
connection with (i) the preparation of the Trust’s reports on Form N-1A and Form
N-SAR and any other reports required by the SEC, and (ii) the fulfillment by
the
Trust of any other requirements of the SEC.
16
ARTICLE
X.
INDEMNIFICATION
10.01 Indemnification
by Trust.
The
Trust shall indemnify and hold harmless the Custodian, any Sub-Custodian and
any
nominee thereof (each, an “Indemnified Party” and collectively, the “Indemnified
Parties”) from and against any and all claims, demands, losses, expenses and
liabilities of any and every nature (including reasonable attorneys’ fees) that
an Indemnified Party may sustain or incur or that may be asserted against an
Indemnified Party by any person arising directly or indirectly (i) from the
fact
that Securities are registered in the name of any such nominee, (ii) from any
action taken or omitted to be taken by the Custodian or such Sub-Custodian
(a)
at the request or direction of or in reliance on the advice of the Trust, or
(b)
upon Proper Instructions, or (iii) from the performance of its obligations
under
this Agreement or any sub-custody agreement, provided that neither the Custodian
nor any such Sub-Custodian shall be indemnified and held harmless from and
against any such claim, demand, loss, expense or liability arising out of or
relating to its refusal or failure to comply with the terms of this Agreement
(or any sub-custody agreement), or from its bad faith, negligence or willful
misconduct in the performance of its duties under this Agreement (or any
sub-custody agreement). This indemnity shall be a continuing obligation of
the
Trust, its successors and assigns, notwithstanding the termination of this
Agreement. As used in this paragraph, the terms “Custodian” and “Sub-Custodian”
shall include their respective directors, officers and employees.
10.02 Indemnification
by Custodian.
The
Custodian shall indemnify and hold harmless the Trust from and against any
and
all claims, demands, losses, expenses, and liabilities of any and every nature
(including reasonable attorneys’ fees) that the Trust may sustain or incur or
that may be asserted against the Trust by any person arising directly or
indirectly out of any action taken or omitted to be taken by an Indemnified
Party as a result of the Indemnified Party’s refusal or failure to comply with
the terms of this Agreement (or any sub-custody agreement), or from its bad
faith, negligence or willful misconduct in the performance of its duties under
this Agreement (or any sub-custody agreement). This indemnity shall be a
continuing obligation of the Custodian, its successors and assigns,
notwithstanding the termination of this Agreement. As used in this paragraph,
the term “Trust” shall include the Trust’s directors, officers and
employees.
10.03 Security.
If the
Custodian advances cash or Securities to the Fund for any purpose, either at
the
Trust’s request or as otherwise contemplated in this Agreement, or in the event
that the Custodian or its nominee incurs, in connection with its performance
under this Agreement, any claim, demand, loss, expense or liability (including
reasonable attorneys’ fees) (except such as may arise from its or its nominee’s
bad faith, negligence or willful misconduct), then, in any such event, any
property at any time held for the account of the Fund shall be security
therefor, and should the Fund fail promptly to repay or indemnify the Custodian,
the Custodian shall be entitled to utilize available cash of such Fund and
to
dispose of other assets of such Fund to the extent necessary to obtain
reimbursement or indemnification.
17
10.04 Miscellaneous.
|
(a)
|
Neither
party to this Agreement shall be liable to the other party for
consequential, special or punitive damages under any provision of
this
Agreement.
|
|
(b)
|
The
indemnity provisions of this Article shall indefinitely survive the
termination and/or assignment of this
Agreement.
|
|
(c)
|
In
order that the indemnification provisions contained in this Article
shall
apply, it is understood that if in any case the indemnitor may be
asked to
indemnify or hold the indemnitee harmless, the indemnitor shall be
fully
and promptly advised of all pertinent facts concerning the situation
in
question, and it is further understood that the indemnitee will use
all
reasonable care to notify the indemnitor promptly concerning any
situation
that presents or appears likely to present the probability of a claim
for
indemnification. The indemnitor shall have the option to defend the
indemnitee against any claim that may be the subject of this
indemnification. In the event that the indemnitor so elects, it will
so
notify the indemnitee and thereupon the indemnitor shall take over
complete defense of the claim, and the indemnitee shall in such situation
initiate no further legal or other expenses for which it shall seek
indemnification under this section. The indemnitee shall in no case
confess any claim or make any compromise in any case in which the
indemnitor will be asked to indemnify the indemnitee except with
the
indemnitor’s prior written consent.
|
ARTICLE
XI.
FORCE
MAJEURE
Neither
the Custodian nor the Trust shall be liable for any failure or delay in
performance of its obligations under this Agreement arising out of or caused,
directly or indirectly, by circumstances beyond its reasonable control,
including, without limitation, acts of God; earthquakes; fires; floods; wars;
civil or military disturbances; acts of terrorism; sabotage; strikes; epidemics;
riots; power failures; computer failure and any such circumstances beyond its
reasonable control as may cause interruption, loss or malfunction of utility,
transportation, computer (hardware or software) or telephone communication
service; accidents; labor disputes; acts of civil or military authority;
governmental actions; or inability to obtain labor, material, equipment or
transportation; provided, however, that in the event of a failure or delay,
the
Custodian (i) shall not discriminate against the Fund in favor of any other
customer of the Custodian in making computer time and personnel available to
input or process the transactions contemplated by this Agreement, and (ii)
shall
use its best efforts to ameliorate the effects of any such failure or
delay.
ARTICLE
XII.
PROPRIETARY
AND CONFIDENTIAL INFORMATION
12.01 The
Custodian agrees on behalf of itself and its directors, officers, and employees
to treat confidentially and as proprietary information of the Trust, all records
and other information relative to the Trust and prior, present, or potential
shareholders of the Trust (and clients of said shareholders), and not to use
such records and information for any purpose other than the performance of
its
responsibilities and duties hereunder, except (i) after prior notification
to
and approval in writing by the Trust, which approval shall not be unreasonably
withheld and may not be withheld where the Custodian may be exposed to civil
or
criminal contempt proceedings for failure to comply, (ii) when requested to
divulge such information by duly constituted authorities, or (iii) when so
requested by the Trust. Records and other information which have become known
to
the public through no wrongful act of the Custodian or any of its employees,
agents or representatives, and information that was already in the possession
of
the Custodian prior to receipt thereof from the Trust or its agent, shall not
be
subject to this paragraph.
18
12.02 Further,
the Custodian will adhere to the privacy policies adopted by the Trust pursuant
to Title V of the Xxxxx-Xxxxx-Xxxxxx Act, as may be modified from time to time.
In this regard, the Custodian shall have in place and maintain physical,
electronic and procedural safeguards reasonably designed to protect the
security, confidentiality and integrity of, and to prevent unauthorized access
to or use of, records and information relating to the Trust and its
shareholders.
ARTICLE
XIII.
EFFECTIVE
PERIOD; TERMINATION
13.01 Effective
Period.
This
Agreement shall become effective as of the date first written above and will
continue in effect for a period of three years.
13.02 Termination.
Subsequent to the initial three-year term, this Agreement may be terminated
by
either party upon giving 90 days prior written notice to the other party or
such
shorter period as is mutually agreed upon by the parties. Notwithstanding the
foregoing, this Agreement may be terminated by any party upon the breach of
the
other party of any material term of this Agreement if such breach is not cured
within 15 days of notice of such breach to the breaching party. In addition,
the
Trust may, at any time, immediately terminate this Agreement in the event of
the
appointment of a conservator or receiver for the Custodian by regulatory
authorities or upon the happening of a like event at the direction of an
appropriate regulatory agency or court of competent jurisdiction.
13.03 Early
Termination.
In
the
absence of any material breach of this agreement, should the Trust elect to
terminate this agreement prior to the end of the term, the trust agrees to
pay
the following fees:
a)
All
monthly fees through the life of the contract, including the
rebate
of
any negotiated discounts;
b)
All
fees associated with converting services to successor service
provider;
c)
All
fees associated with any record retention and/or tax reporting
obligations
that may not be eliminated due to the conversion to a
successor
service provider;
All
out-of-pocket costs associated with a-c above
19
13.04 Appointment
of Successor Custodian.
If a
successor custodian shall have been appointed by the Board of Trustees, the
Custodian shall, upon receipt of a notice of acceptance by the successor
custodian, on such specified date of termination (i) deliver directly to the
successor custodian all Securities (other than Securities held in a Book-Entry
System or Securities Depository) and cash then owned by the Fund and held by
the
Custodian as custodian, and (ii) transfer any Securities held in a Book-Entry
System or Securities Depository to an account of or for the benefit of the
Fund
at the successor custodian, provided that the Trust shall have paid to the
Custodian all fees, expenses and other amounts to the payment or reimbursement
of which it shall then be entitled. In addition, the Custodian shall, at the
expense of the Trust, transfer to such successor all relevant books, records,
correspondence, and other data established or maintained by the Custodian under
this Agreement in a form reasonably acceptable to the Trust (if such form
differs from the form in which the Custodian has maintained the same, the Trust
shall pay any expenses associated with transferring the data to such form),
and
will cooperate in the transfer of such duties and responsibilities, including
provision for assistance from the Custodian’s personnel in the establishment of
books, records, and other data by such successor. Upon such delivery and
transfer, the Custodian shall be relieved of all obligations under this
Agreement.
13.05 Failure
to Appoint Successor Custodian.
If a
successor custodian is not designated by the Trust on or before the date of
termination of this Agreement, then the Custodian shall have the right to
deliver to a bank or trust company of its own selection, which bank or trust
company (i) is a “bank” as defined in the 1940 Act, and (ii) has aggregate
capital, surplus and undivided profits as shown on its most recent published
report of not less than $25 million, all Securities, cash and other property
held by Custodian under this Agreement and to transfer to an account of or
for
the Fund at such bank or trust company all Securities of the Fund held in a
Book-Entry System or Securities Depository. Upon such delivery and transfer,
such bank or trust company shall be the successor custodian under this Agreement
and the Custodian shall be relieved of all obligations under this Agreement.
In
addition, under these circumstances, all books, records and other data of the
Trust shall be returned to the Trust.
ARTICLE
XIV.
MISCELLANEOUS
14.01 Compliance
with Laws.
The
Trust has and retains primary responsibility for all compliance matters relating
to the Fund, including but not limited to compliance with the 1940 Act, the
Internal Revenue Code of 1986, the Xxxxxxxx-Xxxxx Act of 2002, the USA Patriot
Act of 2002 and the policies and limitations of the Fund relating to its
portfolio investments as set forth in its Prospectus and statement of additional
information. The Custodian’s services hereunder shall not relieve the Trust of
its responsibilities for assuring such compliance or the Board of Trustee’s
oversight responsibility with respect thereto.
14.02 Amendment.
This
Agreement may not be amended or modified in any manner except by written
agreement executed by the Custodian and the Trust, and authorized or approved
by
the Board of Trustees.
14.03 Assignment.
This
Agreement shall extend to and be binding upon the parties hereto and their
respective successors and assigns; provided, however, that this Agreement shall
not be assignable by the Trust without the written consent of the Custodian,
or
by the Custodian without the written consent of the Trust accompanied by the
authorization or approval of the Board of Trustees.
20
14.04 Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Ohio, without regard to conflicts of law principles. To the extent
that
the applicable laws of the State of Ohio, or any of the provisions herein,
conflict with the applicable provisions of the 1940 Act, the latter shall
control, and nothing herein shall be construed in a manner inconsistent with
the
1940 Act or any rule or order of the SEC thereunder.
14.05 No
Agency Relationship.
Nothing
herein contained shall be deemed to authorize or empower either party to act
as
agent for the other party to this Agreement, or to conduct business in the
name,
or for the account, of the other party to this Agreement.
14.06 Services
Not Exclusive.
Nothing
in this Agreement shall limit or restrict the Custodian from providing services
to other parties that are similar or identical to some or all of the services
provided hereunder.
14.07 Invalidity.
Any
provision of this Agreement which may be determined by competent authority
to be
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. In such case, the
parties shall in good faith modify or substitute such provision consistent
with
the original intent of the parties.
14.08 Notices.
Any
notice required or permitted to be given by either party to the other shall
be
in writing and shall be deemed to have been given on the date delivered
personally or by courier service, or three days after sent by registered or
certified mail, postage prepaid, return receipt requested, or on the date sent
and confirmed received by facsimile transmission to the other party’s address
set forth below:
Notice
to
the Custodian shall be sent to:
U.S
Bank,
N.A.
0000
X.
Xxxxxxxxxxx Xx., XX-XX-X000
Xxxxxxxxx,
XX 00000
Attn:
Xxx
Xxxxxx
Phone:
000-000-0000
Fax:
000-000-0000
and
notice to the Trust shall be sent to:
U.S.
Bancorp Fund Services, LLC
000
X.
Xxxxxxxx
Xxxxxxxxx,
XX 00000
21
14.09 Multiple
Originals.
This
Agreement may be executed on two or more counterparts, each of which when so
executed shall be deemed an original, but such counterparts shall together
constitute but one and the same instrument.
14.10 No
Waiver.
No
failure by either party hereto to exercise, and no delay by such party in
exercising, any right hereunder shall operate as a waiver thereof. The exercise
by either party hereto of any right hereunder shall not preclude the exercise
of
any other right, and the remedies provided herein are cumulative and not
exclusive of any remedies provided at law or in equity.
14.11 References
to Custodian.
The
Trust shall not circulate any printed matter which contains any reference to
Custodian without the prior written approval of Custodian, excepting printed
matter contained in the prospectus or statement of additional information for
the Fund and such other printed matter as merely identifies Custodian as
custodian for the Fund. The Trust shall submit printed matter requiring approval
to Custodian in draft form, allowing sufficient time for review by Custodian
and
its counsel prior to any deadline for printing.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by
a duly authorized officer on one or more counterparts as of the date first
above
written.
|
U.S.
BANK, NATIONAL ASSOCIATION
|
|
|
By:/s/
Xxxxxx
X.Xxxxxxxxx
|
By:/s/
Xxxxxxx X.
XxXxx
|
|
Name:
Xxxxxx X. Xxxxxxxxx
|
Name:
Xxxxxxx X. XxXxx
|
|
Title:
Chairman
|
Title:
Vice President
|
22
EXHIBIT
A
AUTHORIZED
PERSONS - Structured Investment Management
Set
forth
below are the names and specimen signatures of the persons authorized by the
Trust for Professional Managers to administer the Fund Custody
Accounts.
|
Authorized
Persons - Printed Name
|
Specimen
Signatures
|
|
23
EXHIBIT
B
U.S.
Bank Institutional Custody Services
Standards
of Service Guide
U.S.
Bank, N.A. (“USBank”) is committed to providing superior quality service to all
customers and their agents at all times. We have compiled this guide as a tool
for our clients to determine our standards for the processing of security
settlements, payment collection, and capital change transactions. Deadlines
recited in this guide represent the times required for USBank to guarantee
processing. Failure to meet these deadlines will result in settlement at our
client’s risk. In all cases, USBank will make every effort to complete all
processing on a timely basis.
USBank
is
a direct participant of the Depository Trust Company, a direct member of the
Federal Reserve Bank of Cleveland, and utilizes the Bank of New York as its
agent for ineligible and foreign securities.
For
corporate reorganizations, USBank utilizes SEI’s Reorg Source, Financial
Information, Inc., XCITEK, DTC Important Notices, Capital Changes Daily (CCH)
and the Wall
Street Journal.
For
bond
calls and mandatory puts, USBank utilizes SEI’s Bond Source, Xxxxx Information
Systems, Standard & Poor’s Corporation, XCITEK, and DTC Important Notices.
USBank will not notify clients of optional put opportunities.
Any
securities delivered free to USBank or its agents must be received three (3)
business days prior to any payment or settlement in order for the USBank
standards of service to apply.
Should
you have any questions regarding the information contained in this guide, please
feel free to contact your account representative.
The
information contained in this Standards of Service Guide is subject to change.
Should any changes be made USBank will provide you with an updated copy of
its
Standards of Service Guide.
24
USBank
Security Settlement Standards
|
Transaction
Type
|
Instructions
Deadlines*
|
Delivery
Instructions
|
||
|
DTC
|
1:30
P.M. on Settlement Date
|
DTC
Participant #0000
Xxxxx
Xxxx XX 00000
Institutional
#________________
For
Account #____________
|
||
|
Federal
Reserve Book Entry
|
12:30
P.M. on Settlement Date
|
Federal
Reserve Bank of Cleveland
for
US Bank, N.A. ABA# 000000000
XXXXX/1050
For
Account #_____________
|
||
|
Federal
Reserve Book Entry (Repurchase Agreement Collateral Only)
|
1:00
P.M. on Settlement Date
|
Federal
Reserve Bank of Cleveland
for
US Bank, N.A. ABA# 000000000
XXXXX/1040
For
Account #_____________
|
||
|
PTC
Securities
(GNMA
Book Entry)
|
12:00
P.M. on Settlement Date
|
PTC
For Account BYORK
US
Bank / 117612
|
||
|
Physical
Securities
|
9:30
A.M. EST on Settlement Date
(for
Deliveries, by 4:00 P.M. on Settlement Date minus 1)
|
Bank
of New York
One
Wall Street- 3rd
Floor - Window A
Xxx
Xxxx, XX 00000
For
account of US Bank / Cust #117612
Attn:
Xxxxxx Xxxxxx
|
||
|
CEDEL/EURO-CLEAR
|
11:00
A.M. on Settlement Date minus 2
|
Cedel
a/c 55021
FFC:
a/c 387000
US
Bank /Global Omnibus
Euroclear
a/c 97816
FFC:
a/c 387000
US
Bank/Global Omnibus
|
||
|
Cash
Wire Transfer
|
3:00
P.M.
|
US
Bank, X.X. Xxxxx/Trust ABA# 000000000
Credit
Account #112950027
Account
of US Bancorp Trust Services
Further
Credit to ___________
Account
# _______________
|
*
All
times listed are Eastern Standard Time.
25
USBank
Payment Standards
|
Security
Type
|
Income
|
Principal
|
|
Equities
|
Payable
Date
|
|
|
Municipal
Bonds*
|
Payable
Date
|
Payable
Date
|
|
Corporate
Bonds*
|
Payable
Date
|
Payable
Date
|
|
Federal
Reserve Bank Book Entry*
|
Payable
Date
|
Payable
Date
|
|
PTC
GNMA’s (P&I)
|
Payable
Date + 1
|
Payable
Date + 1
|
|
CMOs
*
|
||
|
DTC
|
Payable
Date + 1
|
Payable
Date + 1
|
|
Bankers
Trust
|
Payable
Date + 1
|
Payable
Date + 1
|
|
SBA
Loan Certificates
|
When
Received
|
When
Received
|
|
Unit
Investment Trust Certificates*
|
Payable
Date
|
Payable
Date
|
|
Certificates
of Deposit*
|
Payable
Date + 1
|
Payable
Date + 1
|
|
Limited
Partnerships
|
When
Received
|
When
Received
|
|
Foreign
Securities
|
When
Received
|
When
Received
|
|
*Variable
Rate Securities
|
||
|
Federal
Reserve Bank Book Entry
|
Payable
Date
|
Payable
Date
|
|
DTC
|
Payable
Date + 1
|
Payable
Date + 1
|
|
Bankers
Trust
|
Payable
Date + 1
|
Payable
Date + 1
|
| NOTE: |
If
a payable date falls on a weekend or bank holiday, payment will be
made on
the immediately following business
day.
|
26
USBank
Corporate Reorganization Standards
|
Type
of Action
|
Notification to
Client
|
Deadline
for Client Instructions
to
USBank
|
Transaction
Posting
|
|||
|
Rights,
Warrants,
and
Optional Mergers
|
Later
of 10 business days prior to expiration or receipt of
notice
|
5
business days prior to expiration
|
Upon
receipt
|
|||
|
Mandatory
Puts with
Option
to Retain
|
Later
of 10 business days prior to expiration or receipt of
notice
|
5
business days prior to expiration
|
Upon
receipt
|
|||
|
Class
Actions
|
10
business days prior to expiration date
|
5
business days prior to expiration
|
Upon
receipt
|
|||
|
Voluntary
Tenders,
Exchanges,
and
Conversions
|
Later
of 10 business days prior to expiration or receipt of
notice
|
5
business days prior to expiration
|
Upon
receipt
|
|||
|
Mandatory
Puts, Defaults, Liquidations, Bankruptcies, Stock Splits, Mandatory
Exchanges
|
At
posting of funds or securities received
|
None
|
Upon
receipt
|
|||
|
Full
and Partial Calls
|
Later
of 10 business days prior to expiration or receipt of
notice
|
None
|
Upon
receipt
|
NOTE:
Fractional shares/par amounts resulting from any of the above will be
sold.
27
EXHIBIT
C
Fund
Names
|
Name
of Series
|
Date
Added
|
|
|
S&P
500® Protected Return
Fund (With
Protected Redemption Value in 2018)
|
on
or after May 30, 2008
|
|
|
|
||
|
Minimum
Return Fund based on the S&P 500
|
on
or after May 30, 2008
|
28
EXHIBIT
Dto
the Custody Agreement
|
Multiple
Series Trust - Structured Investment Management
DOMESTIC
CUSTODY SERVICES
FEE
SCHEDULE at May, 2008
|
|
Annual
fee based upon market value per fund*:
1
basis point on fund assets
Minimum
annual fee per fund - $____
Portfolio
Transaction Fees
$____
per US Bank repurchase agreement transaction
$____
per book entry security (depository or Federal Reserve system) and
non-US
Bank repurchase agrmt
$____
per portfolio transaction processed through our New York custodian
definitive security (physical)
$____
per principal paydown
$____
per option/future contract written, exercised or expired
$____
per Cedel/Euroclear transaction
$____
per mutual fund trade
$____
per Fed Wire
$____
per margin variation Fed wire
$____
per short sale
ReportSource
- $___ /month - Web reporting
·
A
transaction is a purchase/sale of a security, free receipt/free delivery,
maturity, tender or exchange.
·
No
charge for the initial conversion free receipt.
·
Overdrafts
- charged to the account at prime interest rate plus 2.
·
Plus
out-of-pocket expenses, and extraordinary expenses based upon complexity,
including items such as shipping fees or transfer fees.
Fees
are billed monthly.
*
Subject to CPI increase, Milwaukee MSA.
|
Advisor’s
signature below acknowledges approval of the domestic and global fee schedule
on
this Exhibit D.
STRUCTURED
INVESTMENT MANAGEMENT, LLC
By:
/s/ Xxxxxx X. Xxxxx
Name:
Xxxxxx X. Xxxxx
Title:
President
Date:
May 30, 2008
29
Exhibit
D
(continued) - Custody Agreement - Trust for Professional Managers
|
GLOBAL
SUB-CUSTODIAL SERVICES - Structured Investment Management
ANNUAL
FEE SCHEDULE at May, 2008
|
||||||||
|
Country
|
Instrument
|
Safekeeping
(BPS)
|
Transaction
Fee
|
Country
|
Instrument
|
Safekeeping
(BPS)
|
Transaction
Fee
|
|
|
Argentina
|
All
|
15.00
|
$40
|
Lithuania
|
All
|
20.00
|
$50
|
|
|
Australia
|
All
|
2.00
|
$30
|
Luxembourg
|
All
|
4.00
|
$25
|
|
|
Austria
|
All
|
3.50
|
$35
|
Malaysia
|
All
|
6.00
|
$80
|
|
|
Bahrain
|
All
|
50.00
|
$140
|
Mali
|
All
|
40.00
|
$155
|
|
|
Bangladesh
|
All
|
40.00
|
$150
|
Malta
|
All
|
22.00
|
$75
|
|
|
Belgium
|
All
|
2.50
|
$45
|
Mauritius
|
All
|
30.00
|
$100
|
|
|
Benin
|
All
|
40.00
|
$155
|
Mexico
|
All
|
3.00
|
$20
|
|
|
Bermuda
|
All
|
15.00
|
$60
|
Morocco
|
All
|
35.00
|
$100
|
|
|
Botswana
|
All
|
25.00
|
$50
|
Namibia
|
All
|
30.00
|
$50
|
|
|
Brazil
|
All
|
15.00
|
$35
|
Netherlands
|
All
|
3.00
|
$25
|
|
|
Bulgaria
|
All
|
40.00
|
$80
|
New
Zealand
|
All
|
3.00
|
$40
|
|
|
Burkina
Faso
|
All
|
40.00
|
$155
|
Niger
|
All
|
40.00
|
$155
|
|
|
Canada
|
All
|
1.25
|
$12
|
Nigeria
|
All
|
30.0
|
$50
|
|
|
Cayman
Islands
|
All
|
1.00
|
$10
|
Norway
|
All
|
3.00
|
$45
|
|
|
Channel
Islands
|
All
|
1.50
|
$25
|
Oman
|
All
|
50.00
|
$140
|
|
|
Chile
|
All
|
20.00
|
$60
|
Pakistan
|
All
|
30.00
|
$100
|
|
|
China“A”
Shares
|
All
|
15.00
|
$65
|
Palestinian
|
All
|
45.00
|
$140
|
|
|
China“B”
Shares
|
All
|
15.00
|
$65
|
Peru
|
All
|
45.00
|
$105
|
|
|
Columbia
|
All
|
40.00
|
$100
|
Philippines
|
All
|
8.00
|
$75
|
|
|
Costa
Rica
|
All
|
15.00
|
$60
|
Poland
|
All
|
25.00
|
$50
|
|
|
Croatia
|
All
|
35.00
|
$65
|
Portugal
|
All
|
15.00
|
$85
|
|
|
Cyprus
|
All
|
15.00
|
$45
|
Qatar
|
All
|
45.00
|
$140
|
|
|
Czech
Republic
|
All
|
20.00
|
$50
|
Romania
|
All
|
35.00
|
$100
|
|
|
Denmark
|
All
|
3.00
|
$50
|
Russia
|
Equities/Bonds
|
30.00
|
$200
|
|
|
Ecuador
|
All
|
35.00
|
$65
|
Russia
|
MINFIN
|
15.00
|
$50
|
|
|
Egypt
|
All
|
40.00
|
$100
|
Senegal
|
All
|
40.00
|
$155
|
|
|
Estonia
|
All
|
7.00
|
$25
|
Serbia
|
All
|
65.00
|
$175
|
|
|
Euromarkets(3)
|
All
|
1.50
|
$10
|
Singapore
|
All
|
3.00
|
$40
|
|
|
Finland
|
All
|
5.00
|
$45
|
Slovak
Republic
|
All
|
25.00
|
$110
|
|
|
France
|
All
|
2.50
|
$45
|
Slovenia
|
All
|
25.00
|
$110
|
|
|
Germany
|
All
|
1.00
|
$30
|
South
Africa
|
All
|
3.00
|
$15
|
|
|
Ghana
|
All
|
25.00
|
$50
|
South
Korea
|
All
|
10.00
|
$20
|
|
|
Greece
|
All
|
20.00
|
$105
|
Spain
|
All
|
3.00
|
$50
|
|
|
Guinea
Bissau
|
All
|
50.00
|
$155
|
Sri
Lanka
|
All
|
15.00
|
$60
|
|
|
Hong
Kong
|
All
|
6.00
|
$60
|
Swaziland
|
All
|
30.00
|
$50
|
|
|
Hungary
|
All
|
35.00
|
$135
|
Sweden
|
All
|
2.00
|
$45
|
|
|
Iceland
|
All
|
15.00
|
$60
|
Switzerland
|
All
|
2.00
|
$50
|
|
|
India
|
All
|
10.00
|
$105
|
Taiwan
|
All
|
20.00
|
$100
|
|
|
Indonesia
|
All
|
12.00
|
$100
|
Thailand
|
All
|
6.00
|
$45
|
|
|
Ireland
|
Equities
|
3.00
|
$30
|
Togo
|
All
|
40.00
|
$155
|
|
|
Ireland
|
Gov’t
Bonds
|
1.50
|
$10
|
Trinidad
& Tobago
|
All
|
30.00
|
$65
|
|
|
Israel
|
All
|
15.00
|
$45
|
Tunisia
|
All
|
40.00
|
$45
|
|
|
Italy
|
All
|
3.00
|
$50
|
Turkey
|
All
|
15.00
|
$15
|
|
|
Ivory
Coast
|
All
|
40.00
|
$155
|
UAE
|
All
|
45.00
|
$130
|
|
|
Jamaica
|
All
|
35.00
|
$50
|
United
Kingdom
|
All
|
1.50
|
$10
|
|
|
Japan
|
All
|
1.50
|
$15
|
Ukraine
|
All
|
30.00
|
$45
|
|
|
Jordan
|
All
|
40.00
|
$125
|
Uruguay
|
All
|
50.00
|
$65
|
|
|
Kazakhstan
|
All
|
60.00
|
$150
|
Venezuela
|
All
|
40.00
|
$125
|
|
|
Kenya
|
All
|
30.00
|
$50
|
Vietnam
|
All
|
40.00
|
$130
|
|
|
Latvia
|
Equities
|
15.00
|
$75
|
Zambia
|
All
|
30.00
|
$50
|
|
|
Latvia
|
Bonds
|
25.00
|
$90
|
Zimbabwe
|
All
|
30.00
|
$50
|
|
|
Lebanon
|
All
|
25.00
|
$90
|
|||||
Base
Fee
-
A
monthly
base charge of $______ per account (fund) will apply.
Notes:
|
(1)
|
Fee
is expressed in basis points per annum where one basis point equals
one
hundredth of one percent (.01%) and is calculated based upon month-end
market value, unless stated
otherwise.
|
|
(2)
|
A
transaction is defined as a receipt or delivery versus payment, a
free
receive or deliver, maturities, or security transaction related to
corporate events.
|
|
(3)
|
Euroclear
- Eurobonds only. Eurobonds are held in Euroclear at a standard rate,
but
other types of securities (including but not limited to equities,
domestic
market debt and mutual funds) will be subject to a surcharge. In
addition,
certain transactions that are delivered within Euroclear or from
a
Euroclear account to a third party depository or settlement system,
will
be subject to a surcharge (surcharge schedule available upon
request)
|
|
§
|
Note,
for all other markets specified above, surcharges may apply if a
security
is held outside of the local
market.
|
30
Straight
Through Processing - fees waived
For
non-US resident clients investing in the U.S. market:
Fees
for
US custody are provided on the basis that if assets are held in an omnibus
account for multiple underlying clients, the Client will take the necessary
action to attain Qualified Intermediary (QI) status for US IRS withholding
tax
purposes. Should the Client fail to take the necessary action, the fee quoted
would be subject to review, and all costs incurred by The Bank of New York
in
fulfilling its obligations under the US regulations would be passed to the
Client. Please refer to the separate Non-Resident Alien (NRA) fee schedule.
Note:
for the
clients who are the sole beneficial owner of the assets held in their account
with The Bank of New York and the client has provided a “W8Ben” form per account
stating their ownership of the assets, the above will not apply.
Cash
Transactions
|
§
|
Currency
Trade -
$____ per transaction
|
|
§
|
3rd
Party Foreign Exchange -
a
Foreign Exchange transaction undertaken through a third party will
be
charged $__.
|
Standard
Non-U.S. Proxy Services Fees
| § |
Notification $__
|
| § |
Vote
$__
|
| § |
Relationship
Set Up Fee $___
|
Tax
Reclamation Services -
may be
subject to additional charges depending upon the service level agreed. Tax
reclaims that have been outstanding for more than 6 (six) months with the client
will be charged $50 per claim.
Communication
Fees
|
§
|
INFORM
-
Access to The Bank of New York proprietary application, INFORM, for
standard custody instructions and reporting will be provided at a
cost of
USD 200 per month including installation and
training.
|
|
§
|
SWIFT
Reporting and Message Fees -
the following fees will apply in respect of client requested SWIFT
reports
and messages:
|
|
§
|
Cash
Reporting -
|
|
·
|
MT900
-
Cash Debit Advice
|
$___
each
|
|
·
|
MT910
-
Cash Credit Advice
|
$___
each
|
|
·
|
MT940
-
Detail Cash Statement
|
$___
per message
|
|
·
|
MT950
-
Cash Statement
|
$___
per message
|
|
§
|
Securities
Position Reporting
|
|
·
|
MT535
- Statement
of Holdings
One
MT535 will be issued per account per month free of charge.
|
$___
per message
|
|
·
|
MT536
-
Statement of Transactions
|
$___
per message
|
|
·
|
MT537
-
Statement of Pendings
|
$___
per message
|
|
§
|
Confirmations
|
|
·
|
MT544
-
Receive Free Confirm
|
$___
per message
|
|
·
|
MT545
-
Receive Against Payment Confirm
|
$___
per message
|
|
·
|
MT546
-
Deliver Free Confirm
|
$___
per message
|
|
·
|
MT547
-
Deliver Against Payment Confirm
|
$___
per message
|
|
§
|
Facsimile
Reporting Fees
|
|
·
|
Corporate
Actions Notifications
|
$___
per notification
|
|
·
|
Cash
and Securities Reports
|
$___
per page
|
Out
of Pocket Expenses
|
§
|
Charges
incurred by The Bank of New York for local taxes, stamp duties or
other
local duties and assessments, stock exchange fees, postage and insurance
for shipping, facsimile reporting, extraordinary telecommunications
fees
or other expenses which are unique to a country in which the client
or its
clients is investing will be passed along as incurred.
|
|
§
|
A
surcharge may be added to certain out-of-pocket expenses listed herein
to
cover handling, servicing and other administrative costs associated
with
the activities giving rise to such expenses. Also, certain expenses
are
charged at a predetermined flat rate.
|
31
EXHIBIT
E
SHAREHOLDER
COMMUNICATIONS ACT AUTHORIZATION
TRUST
FOR PROFESSIONAL MANAGERS on behalf of the
S&P
500® Protected
Return
Fund
The
Shareholder Communications Act of 1985 requires banks and trust companies to
make an effort to permit direct communication between a company which issues
securities and the shareholder who votes those securities.
Unless
you specifically require us to NOT release your name and address to requesting
companies, we are required by law to disclose your name and
address.
Your
“yes” or “no” to disclosure will apply to all securities U.S. Bank holds for you
now and in the future, unless you change your mind and notify us in writing.
|
______
YES
|
U.S.
Bank is authorized to provide the Trust’s name, address and security
position to requesting companies whose stock is owned by the Trust.
|
|
______
NO
|
U.S.
Bank is NOT authorized to provide the Trust’s name, address and security
position to requesting companies whose stock is owned by the Trust.
|
on
behalf of its series listed on Exhibit C
By:
/s/
Xxxxxx X.
Xxxxxxxxx
Title:
Xxxxxx X. Xxxxxxxxx, Chairman
Date: May
30,
2008
32
