Exhibit J
CUSTODIAN SERVICES AGREEMENT
THIS AGREEMENT is made as of September 1, 2002 by and between SEI
PRIVATE TRUST COMPANY, a savings association supervised by the Office of Thrift
Supervision ("SEI Trust"), and AETOS CAPITAL DISTRESSED INVESTMENT STRATEGIES
FUND, LLC, a Delaware limited liability company (the "Fund").
W I T N E S S E T H:
WHEREAS, the Fund is registered as a closed-end, non-diversified
management investment company under the Investment Company Act of 1940, as
amended (the "1940 Act"); and
WHEREAS, the Fund wishes to retain SEI Trust to provide custodian
services, and SEI Trust wishes to furnish custodian services, either directly or
through an affiliate or affiliates, as more fully described herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. DEFINITIONS.
(a) "1933 ACT" means the Securities Act of 1933, as amended.
(b) "1934 ACT" means the Securities Exchange Act of 1934, as amended.
(c) "AUTHORIZED PERSON" means any officer of the Fund and any other person
authorized by the Fund to give Oral or Written Instructions on behalf
of the Fund. An Authorized Person's scope of authority may be limited
by setting forth such limitation in a written document signed by both
parties hereto.
(d) "BOOK-ENTRY SYSTEM" means Federal Reserve Treasury book-entry system
for United States and federal agency securities, its successor or
successors, and its nominee or nominees and any book-entry system
maintained by an exchange registered with the SEC under the 1934 Act.
(e) "CEA" means the Commodities Exchange Act, as amended.
(f) "CHANGE OF CONTROL" means a change in ownership or control (not
including transactions between wholly-owned direct or indirect
subsidiaries of a common parent) of 25% or more of the beneficial
ownership of the shares of common stock or shares of beneficial
interest of an entity or its parent(s).
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(g) "ORAL INSTRUCTIONS" mean oral instructions received by SEI Trust from
an Authorized Person or from a person reasonably believed by SEI Trust
to be an Authorized Person. SEI Trust may, in its sole discretion in
each separate instance, consider and rely upon instructions it receives
from an Authorized Person via electronic mail as Oral Instructions.
(h) "SEI TRUST" means SEI Private Trust Company or a subsidiary or
affiliate of SEI Private Trust Company.
(i) "SEC" means the Securities and Exchange Commission.
(j) "SECURITIES LAWS" mean the 1933 Act, the 1934 Act, the 1940 Act and the
CEA.
(k) "SHARES" mean the shares of limited liability company interest of any
series or class of the Fund.
(l) "PROPERTY" means:
(i) any and all securities and other investment items which the
Fund may from time to time deposit, or cause to be deposited,
with SEI Trust or which SEI Trust may from time to time hold
for the Fund;
(ii) all income in respect of any of such securities or other
investment items;
(iii) all proceeds of the sale of any of such securities or
investment items; and
(iv) all proceeds of the sale of securities issued by the Fund,
which are received by SEI Trust from time to time, from or
on behalf of the Fund.
(m) "WRITTEN INSTRUCTIONS" mean (i) written instructions signed by two
Authorized Persons and received by SEI Trust or (ii) trade instructions
transmitted by means of an electronic transaction reporting system
which requires the use of a password or other authorized identifier in
order to gain access. The instructions may be delivered electronically
or by hand, mail or facsimile sending device.
2. APPOINTMENT. The Fund hereby appoints SEI Trust to provide custodian
services to the Fund, and SEI Trust accepts such appointment and agrees to
furnish such services.
3. DELIVERY OF DOCUMENTS. The Fund has provided or, where applicable, will
provide SEI Trust with the following:
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(a) at SEI Trust's request, certified or authenticated copies of the
resolutions of the Fund's Managers, approving the appointment of SEI
Trust or its affiliates to provide services;
(b) a copy of the Fund's most recent effective registration statement;
(c) a copy of the Fund's advisory and sub-advisory agreements;
(d) a copy of the distribution/underwriting agreements with respect to
each class of Shares;
(e) a copy of the Fund's administration agreement;
(f) copies of any distribution and/or member servicing plans and
agreements made in respect of the Fund or a class thereof; and
(g) certified or authenticated copies of any and all amendments or
supplements to the foregoing.
4. COMPLIANCE WITH LAWS.
SEI Trust undertakes to comply with applicable requirements of the
Securities Laws and laws, rules and regulations of governmental authorities
having jurisdiction with respect to the duties to be performed by SEI Trust
hereunder. Except as specifically set forth herein, SEI Trust assumes no
responsibility for compliance with such laws by the Fund or any other entity.
5. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, SEI Trust shall act only
upon Oral Instructions or Written Instructions.
(b) SEI Trust shall be entitled to rely upon any Oral Instruction or
Written Instruction it receives from an Authorized Person (or from a
person reasonably believed by SEI Trust to be an Authorized Person)
pursuant to this Agreement. SEI Trust may assume that any Oral
Instructions or Written Instructions received hereunder are not in any
way inconsistent with the provisions of organizational documents of the
Fund or of any vote, resolution or proceeding of the Fund's Managers or
of the Fund's members, unless and until SEI Trust receives Written
Instructions to the contrary.
(c) The Fund agrees to forward to SEI Trust Written Instructions confirming
Oral Instructions (except where such Oral Instructions are given by SEI
Trust or its affiliates) so that SEI Trust receives the Written
Instructions by the close of business on the same day that such Oral
Instructions are received by SEI Trust. The fact that such confirming
Written Instructions are not received by SEI Trust
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or differ from the Oral Instructions shall in no way invalidate the
transactions or enforceability of the transactions authorized by the
Oral Instructions or SEI Trust's ability to rely upon such Oral
Instructions.
6. RIGHT TO RECEIVE ADVICE.
(a) ADVICE OF THE FUND. If SEI Trust is in doubt as to any action it should
or should not take, SEI Trust may request directions or advice,
including Oral Instructions or Written Instructions, from the Fund.
(b) ADVICE OF COUNSEL. If SEI Trust shall be in doubt as to any question of
law pertaining to any action it should or should not take, SEI Trust
may request advice from counsel of its own choosing (who may be counsel
for the Fund, the Fund's investment adviser or SEI Trust, at the option
of SEI Trust), and such cost shall be borne by the Fund.
(c) CONFLICTING ADVICE. In the event of a conflict between directions or
advice or Oral Instructions or Written Instructions SEI Trust receives
from the Fund, and the advice it receives from counsel, SEI Trust shall
be entitled to rely upon and follow the advice of counsel.
(d) PROTECTION OF SEI TRUST. SEI Trust shall be indemnified by the Fund and
without liability for any action SEI Trust takes or does not take in
reliance upon directions or advice or Oral Instructions or Written
Instructions SEI Trust receives from or on behalf of the Fund or from
counsel and which SEI Trust believes, in good faith, to be consistent
with those directions or advice or Oral Instructions or Written
Instructions. Nothing in this section shall be construed so as to
impose an obligation upon SEI Trust (i) to seek such directions or
advice or Oral Instructions or Written Instructions, or (ii) to act in
accordance with such directions or advice or Oral Instructions or
Written Instructions.
7. RECORDS; VISITS. The books and records pertaining to the Fund which are in
the possession or under the control of SEI Trust shall be the property of the
Fund. Such books and records shall be prepared and maintained as required by the
1940 Act and other applicable securities laws, rules and regulations. The Fund
and Authorized Persons shall have access to such books and records at all times
during SEI Trust's normal business hours. Upon the reasonable request of the
Fund, copies of any such books and records shall be provided by SEI Trust to the
Fund or to an authorized representative of the Fund, at the Fund's expense.
8. CONFIDENTIALITY. Each party shall keep confidential any information relating
to the other party's business ("Confidential Information"). Confidential
Information shall include (a) any data or information that is competitively
sensitive material, and not generally known to the public, including, but not
limited to, information about product plans, marketing strategies, finances,
operations, customer relationships, customer profiles, customer lists, sales
estimates, business plans, and internal performance results
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relating to the past, present or future business activities of the Fund or SEI
Trust, their respective subsidiaries and affiliated companies and the customers,
clients and suppliers of any of them; (b) any scientific or technical
information, design, process, procedure, formula, or improvement that is
commercially valuable and secret in the sense that its confidentiality affords
the Fund or SEI Trust a competitive advantage over its competitors; (c) all
confidential or proprietary concepts, documentation, reports, data,
specifications, computer software, source code, object code, flow charts,
databases, inventions, know-how, and trade secrets, whether or not patentable or
copyrightable; and (d) anything designated as confidential. Notwithstanding the
foregoing, information shall not be subject to such confidentiality obligations
if it: (a) is already known to the receiving party at the first time it is
obtained; (b) is or becomes publicly known or available through no wrongful act
of the receiving party; (c) is rightfully received from a third party who, to
the best of the receiving party's knowledge, is not under a duty of
confidentiality; (d) is released by the protected party to a third party without
restriction; (e) is required to be disclosed by the receiving party pursuant to
a requirement of a court order, subpoena, governmental or regulatory agency or
law (provided the receiving party will provide the other party written notice of
such requirement, to the extent such notice is permitted); (f) is relevant to
the defense of any claim or cause of action asserted against the receiving
party; or (g) has been or is independently developed or obtained by the
receiving party.
9. COOPERATION WITH ACCOUNTANTS. SEI Trust shall cooperate with the Fund's
independent public accountants and shall take all reasonable action to make any
requested information available to such accountants as reasonably requested by
the Fund.
10. SEI SYSTEM. SEI Trust shall retain title to and ownership of any and all
data bases, computer programs, screen formats, report formats, interactive
design techniques, derivative works, inventions, discoveries, patentable or
copyrightable matters, concepts, expertise, patents, copyrights, trade secrets,
and other related legal rights utilized by SEI Trust in connection with the
services provided by SEI Trust to the Fund.
11. DISASTER RECOVERY. SEI Trust shall enter into and shall maintain in effect
with appropriate parties one or more agreements making reasonable provisions for
emergency use of electronic data processing equipment to the extent appropriate
equipment is available. In the event of equipment failures, SEI Trust shall, at
no additional expense to the Fund, take reasonable steps to minimize service
interruptions. SEI Trust shall have no liability with respect to the loss of
data or service interruptions caused by equipment failure provided such loss or
interruption is not caused by SEI Trust's own willful misfeasance, bad faith,
gross negligence or reckless disregard of its duties or obligations under this
Agreement.
12. COMPENSATION. As compensation for the services rendered by SEI Trust under
this Agreement, the Fund will pay to SEI Trust a fee or fees as may be agreed to
in writing from time to time by the Fund and SEI Trust. The Fund acknowledges
that SEI Trust may receive float benefits in connection with maintaining certain
accounts required to provide services under this Agreement.
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13. INDEMNIFICATION. The Fund agrees to indemnify and hold harmless SEI Trust
and its affiliates, including their respective officers, directors, agents and
employees, from all taxes, charges, expenses, assessments, claims and
liabilities (including, without limitation, attorneys' fees and disbursements
and liabilities arising under the Securities Laws and any state and foreign
securities and blue sky laws) arising directly or indirectly from any action or
omission to act which SEI Trust takes in connection with the provision of
services to the Fund. Neither SEI Trust, nor any of its affiliates, shall be
indemnified against any liability (or any expenses incident to such liability)
caused by SEI Trust's or its affiliates' own willful misfeasance, bad faith,
gross negligence or reckless disregard in the performance of SEI Trust's
activities under this Agreement. The provisions of this Section 13 shall survive
termination of this Agreement.
14. RESPONSIBILITY OF SEI TRUST.
(a) SEI Trust shall be under no duty to take any action hereunder on behalf
of the Fund except as specifically set forth herein or as may be
specifically agreed to by SEI Trust and the Fund in a written amendment
hereto. SEI Trust shall be obligated to exercise care and diligence in
the performance of its duties hereunder and to act in good faith in
performing services provided for under this Agreement. SEI Trust shall
be liable only for any damages arising out of SEI Trust's failure to
perform its duties under this Agreement to the extent such damages
arise out of SEI Trust's willful misfeasance, bad faith, gross
negligence or reckless disregard of its duties under this Agreement.
(b) Notwithstanding anything in this Agreement to the contrary, (i) SEI
Trust shall not be liable for losses, delays, failure, errors,
interruption or loss of data occurring directly or indirectly by reason
of circumstances beyond its reasonable control, including without
limitation acts of god; action or inaction of civil or military
authority; public enemy; war; terrorism; riot; fire; flood; sabotage;
epidemics; labor disputes; civil commotion; interruption, loss or
malfunction of utilities, transportation, computer or communications
capabilities; insurrection; elements of nature; or non-performance by a
third party; and (ii) SEI Trust shall not be under any duty or
obligation to inquire into and shall not be liable for the validity or
invalidity, authority or lack thereof, or truthfulness or accuracy or
lack thereof, of any instruction, direction, notice, instrument or
other information which SEI Trust reasonably believes to be genuine.
(c) Notwithstanding anything in this Agreement to the contrary, (i)
neither SEI Trust nor its affiliates shall be liable for any
consequential, special or indirect losses or damages, whether or not
the likelihood of such losses or damages was known by SEI Trust or its
affiliates.
(d) No party may assert a cause of action against SEI Trust or any of its
affiliates that allegedly occurred more than 12 months immediately
prior to the filing of the suit
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(or, if applicable, commencement of arbitration proceedings) alleging such
cause of action.
(e) Each party shall have a duty to mitigate damages for which the other
party may become responsible.
The provisions of this Section 14 shall survive termination of this Agreement.
15. DESCRIPTION OF SERVICES. SEI Trust shall perform the custodian services set
forth in Schedule A hereto. SEI Trust may sub-contract with third parties to
perform certain of the services to be performed by SEI Trust hereunder;
provided, however, that SEI Trust's obligations hereunder shall not be
diminished in the event it sub-contracts any of its responsibilities hereunder.
In meeting its duties hereunder, SEI Trust shall have the general authority to
do all acts deemed in the SEI Trust's good faith belief to be necessary and
proper to perform its obligations under this Agreement.
16. DURATION AND TERMINATION. This Agreement shall continue until terminated by
the Fund or SEI Trust on sixty (60) days' prior written notice to the other
party. In the event this Agreement is terminated (pending appointment of a
successor to SEI Trust or vote of the members of the Fund to dissolve or to
function without a custodian of its cash, securities or other property), SEI
Trust shall not deliver the Fund's cash, securities or other property to the
Fund, but may deliver them to a bank or trust company of the Fund's choice upon
written instruction to SEI Trust, such bank or trust company shall have an
aggregate capital, surplus and undivided profits, as shown by its last published
report, of not less than twenty million dollars ($20,000,000), as a custodian
for the Fund to be held under terms similar to those of this Agreement. SEI
Trust shall not be required to make any delivery or payment of assets upon
termination until full payment shall have been made to SEI Trust of all of its
fees, compensation, costs and expenses (such expenses include, without
limitation, expenses associated with movement (or duplication) of records and
materials and conversion thereof to a successor service provider, or to a bank
or trust company pending appointment of such successor, and all trailing
expenses incurred by SEI Trust). SEI Trust shall have a security interest in and
shall have a right of setoff against the Property as security for the payment of
such fees, compensation, costs and expenses.
17. NOTICES. Notices shall be addressed (a) if to SEI Trust at Xxx Xxxxxxx
Xxxxxx Xxxxx, Xxxx, Xxxxxxxxxxxx 00000, Attention: General Counsel; (b) if to
the Fund, at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention: General
Counsel; or (c) if to neither of the foregoing, at such other address as shall
have been given by like notice to the sender of any such notice or other
communication by the other party. If notice is sent by confirming electronic,
hand or facsimile sending device, it shall be deemed to have been given
immediately. If notice is sent by first-class mail, it shall be deemed to have
been given five days after it has been mailed. If notice is sent by messenger,
it shall be deemed to have been given on the day it is delivered.
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18. AMENDMENTS. This Agreement, or any term hereof, may be changed or waived
only by a written amendment, signed by the party against whom enforcement of
such change or waiver is sought.
19. DELEGATION; ASSIGNMENT. SEI Trust may assign its rights and delegate its
duties hereunder to any affiliate of SEI Investments Company provided that SEI
Trust gives the Fund 30 days' prior written notice of such assignment or
delegation.
20. COUNTERPARTS. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
21. FURTHER ACTIONS. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the purposes
hereof.
22. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding between the parties and supersedes all prior agreements
and understandings relating to the subject matter hereof, provided
that the parties may embody in one or more separate documents their
agreement, if any, with respect to delegated duties.
(b) NO REPRESENTATIONS OR WARRANTIES. Except as expressly provided in
this Agreement, SEI Trust hereby disclaims all representations and
warranties, express or implied, made to the Fund or any other person,
including, without limitation, any warranties regarding quality,
suitability, merchantability, fitness for a particular purpose or
otherwise (irrespective of any course of dealing, custom or usage of
trade), of any services or any goods provided incidental to services
provided under this Agreement. SEI Trust disclaims any warranty of
title or non-infringement except as otherwise set forth in this
Agreement.
(c) NO CHANGES THAT MATERIALLY AFFECT OBLIGATIONS. Notwithstanding
anything in this Agreement to the contrary, the Fund agrees not to
make any modifications to its registration statement or adopt any
policies which would affect materially the obligations or
responsibilities of SEI Trust hereunder without the prior written
approval of SEI Trust, which approval shall not be unreasonably
withheld or delayed.
(d) CAPTIONS. The captions in this Agreement are included for convenience
of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect.
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(e) GOVERNING LAW. This Agreement shall be deemed to be a contract made
in Pennsylvania and governed by the laws of the Commonwealth of
Pennsylvania, without regard to principles of conflicts of law.
(f) PARTIAL INVALIDITY. If any provision of this Agreement shall be
held or made invalid by a court decision, statute, rule or otherwise,
the remainder of this Agreement shall not be affected thereby.
(g) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
(h) FACSIMILE SIGNATURES. The facsimile signature of any party to this
Agreement shall constitute the valid and binding execution hereof by
such party.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
SEI PRIVATE TRUST COMPANY
By: ______________________
Title: ____________________
AETOS CAPITAL DISTRESSED INVESTMENT STRATEGIES FUND, LLC
By: _____________________
Title: ___________________
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SCHEDULE A
DESCRIPTION OF SERVICES.
SEI Trust shall provide the following list of services to the Fund:
1. DELIVERY OF THE PROPERTY. The Fund will deliver or arrange for
delivery to SEI Trust, all the Property owned by it, including cash
received as a result of the distribution of Shares, during the term of
this Agreement. SEI Trust will not be responsible for such property
until actual receipt.
2 RECEIPT AND DISBURSEMENT OF MONEY. SEI Trust, acting upon Written
Instructions, shall open and maintain separate accounts in the Fund's
name using all cash received from or for the account of the Fund,
subject to the terms of this Agreement.
SEI Trust shall make cash payments from or for the Accounts of the Fund
only for:
(a) purchases of securities in the name of the Fund, SEI Trust, SEI
Trust's nominee or a sub-custodian or nominee thereof as
provided in sub-section (j) and for which SEI Trust has received
a copy of the broker's or dealer's confirmation or payee's
invoice, as appropriate;
(b) purchase or redemption of Shares of the Fund delivered to SEI
Trust;
(c) payment of, subject to Written Instructions, interest, taxes,
administration, accounting, distribution, advisory, management
fees or similar expenses which are to be borne by the Fund;
(d) payment to, subject to receipt of Written Instructions, the
Fund's investor services agent, as agent for the members, of an
amount equal to the amount of dividends and distributions stated
in the Written Instructions to be distributed in cash by the
investor services agent to members, or, in lieu of paying the
Fund's investor services agent, SEI Trust may arrange for the
direct payment of cash dividends and distributions to members in
accordance with procedures mutually agreed upon from time to
time by and among the Fund, SEI Trust and the Fund's investor
services agent.
(e) payments, upon receipt of Written Instructions, in connection
with the conversion, exchange or surrender of securities owned
or subscribed to by the Fund and held by or delivered to SEI
Trust;
(f) payments made to a sub-custodian pursuant to provisions in
sub-section (c) of this Section; and
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(g) other payments, upon Written Instructions.
SEI Trust is hereby authorized to endorse and collect all checks, drafts or
other orders for the payment of money received as custodian for the
Accounts.
3. RECEIPT OF SECURITIES; SUBCUSTODIANS.
(a) SEI Trust shall hold all securities received by it for the
Accounts in a separate account that physically segregates such
securities from those of any other persons, firms or
corporations, except for securities held in a Book-Entry System.
All such securities shall be held or disposed of only upon
Written Instructions of the Fund pursuant to the terms of this
Agreement. SEI Trust shall have no power or authority to assign,
hypothecate, pledge or otherwise dispose of any such securities
or investment, except upon the express terms of this Agreement
or upon Written Instructions authorizing the transaction. In no
case may any member of the Fund's Managers, or any officer,
employee or agent of the Fund withdraw any securities.
At SEI Trust's own expense and for its own convenience, SEI Trust may enter
into sub-custodian agreements with other banks or trust companies to
perform duties described in this sub-section (c) with respect to domestic
assets. Such bank or trust company shall have an aggregate capital, surplus
and undivided profits, according to its last published report, of at least
one million dollars ($1,000,000), if it is a subsidiary or affiliate of SEI
Trust, or at least twenty million dollars ($20,000,000) if such bank or
trust company is not a subsidiary or affiliate of SEI Trust. In addition,
such bank or trust company must be qualified to act as custodian and agree
to comply with the relevant provisions of applicable rules and regulations.
Any such arrangement will not be entered into without prior written notice
to the Fund (or as otherwise provided in the 1940 Act).
In addition, SEI Trust may enter into arrangements with sub-custodians with
respect to services regarding foreign assets. Any such arrangement will be
entered into with prior written notice to the Fund (or as otherwise
provided in the 1940 Act).
SEI Trust shall remain responsible for the performance of all of its duties
as described in this Agreement and shall hold the Fund harmless from its
own acts or omissions, under the standards of care provided for herein, or
the acts and omissions of any sub-custodian chosen by SEI Trust under the
terms of this sub-section (c).
4. TRANSACTIONS REQUIRING INSTRUCTIONS. Upon receipt of Oral Instructions
or Written Instructions and not otherwise, SEI Trust, directly or
through the use of the Book-Entry System, shall:
(a) deliver any securities held for the Fund against the receipt of
payment for the sale of such securities;
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(b) execute and deliver to such persons as may be designated in such
Oral Instructions or Written Instructions, proxies, consents,
authorizations, and any other instruments whereby the authority
of the Fund as owner of any securities may be exercised;
(c) deliver any securities to the issuer thereof, or its agent, when
such securities are called, redeemed, retired or otherwise
become payable at the option of the holder; provided that, in
any such case, the cash or other consideration is to be
delivered to SEI Trust;
(d) deliver any securities held for the Fund against receipt of
other securities or cash issued or paid in connection with the
liquidation, reorganization, refinancing, tender offer, merger,
consolidation or recapitalization of any corporation, or the
exercise of any conversion privilege;
(e) deliver any securities held for the Fund to any protective
committee, reorganization committee or other person in
connection with the reorganization, refinancing, merger,
consolidation, recapitalization or sale of assets of any
corporation, and receive and hold under the terms of this
Agreement such certificates of deposit, interim receipts or
other instruments or documents as may be issued to it to
evidence such delivery;
(f) make such transfer or exchanges of the assets of the Fund and
take such other steps as shall be stated in said Oral
Instructions or Written Instructions to be for the purpose of
effectuating a duly authorized plan of liquidation,
reorganization, merger, consolidation or recapitalization of the
Fund;
(g) release and deliver or exchange securities owned by the Fund in
connection with any conversion of such securities, pursuant to
their terms, into other securities;
(h) release and deliver securities owned by the Fund for the purpose
of redeeming in kind shares of the Fund upon delivery thereof to
SEI Trust; and
(i) release and deliver or exchange securities owned by the Fund for
other purposes.
5. USE OF BOOK-ENTRY SYSTEM. SEI Trust is authorized and instructed, on a
continuous basis, to deposit in the Book-Entry System all securities
belonging to the Fund eligible for deposit therein and to utilize the
Book-Entry System to the extent possible in connection with settlements
of purchases and sales of securities by the Fund, and deliveries and
returns of securities loaned, subject to repurchase agreements or used
as collateral in connection with
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borrowings. SEI Trust shall continue to perform such duties until it
receives Written Instructions or Oral Instructions authorizing contrary
actions.
SEI Trust shall administer the Book-Entry System as follows:
(a) With respect to securities of the Fund which are maintained in
the Book-Entry System, the records of SEI Trust shall identify
by Book-Entry or otherwise those securities belonging to the
Fund.
(b) Assets of the Fund deposited in the Book-Entry System will at
all times be segregated from any assets and cash controlled by
SEI Trust in other than a fiduciary or custodian capacity but
may be commingled with other assets held in such capacities.
SEI Trust will provide the Fund with such reports on its own system of
internal control as the Fund may reasonably request from time to time.
6. REGISTRATION OF SECURITIES. All Securities held for the Fund which are
issued or issuable only in bearer form, except such securities held in
the Book-Entry System, shall be held by SEI Trust in bearer form; all
other securities held for the Fund may be registered in the name of the
Fund, SEI Trust, the Book-Entry System, a sub-custodian, or any duly
appointed nominee of the Fund, SEI Trust, Book-Entry System or
sub-custodian. The Fund reserves the right to instruct SEI Trust as to
the method of registration and safekeeping of the securities of the
Fund. The Fund agrees to furnish to SEI Trust appropriate instruments
to enable SEI Trust to hold or deliver in proper form for transfer, or
to register in the name of its nominee or in the name of the Book-Entry
System or in the name of another appropriate entity, any securities
which it may hold for the Accounts and which may from time to time be
registered in the name of the Fund.
7. VOTING AND OTHER ACTION. Neither SEI Trust nor its nominee shall vote
any of the securities held pursuant to this Agreement by or for the
account of the Fund, except in accordance with Written Instructions.
SEI Trust, directly or through the use of the Book-Entry System, shall
execute in blank and promptly deliver all notices, proxies and proxy
soliciting materials received by SEI Trust as custodian of the Property
to the registered holder of such securities. If the registered holder
is not the Fund, then Written Instructions or Oral Instructions must
designate the person who owns such securities.
8. TRANSACTIONS NOT REQUIRING INSTRUCTIONS. In the absence of contrary
Written Instructions, SEI Trust is authorized to take the following
actions:
(a) COLLECTION OF INCOME AND OTHER PAYMENTS.
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(i) collect and receive for the account of the Fund, all income,
dividends, distributions, coupons, option premiums, other
payments and similar items, included or to be included in
the Property, and, in addition, promptly advise the Fund of
such receipt and credit such income, as collected, to the
Fund's custodian account;
(ii) endorse and deposit for collection, in the name of the Fund,
checks, drafts, or other orders for the payment of
money;
(iii) receive and hold for the account of the Fund all securities
received as a distribution on the Fund's securities as a
result of a stock dividend, share split-up or
reorganization, recapitalization, readjustment or other
rearrangement or distribution of rights or similar
securities issued with respect to any securities belonging
to the Fund and held by SEI Trust hereunder;
(iv) present for payment and collect the amount payable upon all
securities which may mature or be, on a mandatory basis,
called, redeemed, or retired, or otherwise become payable on
the date such securities become payable; and
(v) take any action which may be necessary and proper in
connection with the collection and receipt of such income
and other payments and the endorsement for collection of
checks, drafts, and other negotiable instruments.
(b) MISCELLANEOUS TRANSACTIONS.
(i) SEI Trust is authorized to deliver or cause to be delivered
Property against payment or other consideration or written
receipt therefor in the following cases:
(a) for examination by a broker or dealer selling for the
account of the Fund in accordance with street delivery
custom;
(b) for the exchange of interim receipts or temporary
securities for definitive securities; and
(c) for transfer of securities into the name of the Fund or
SEI Trust or a sub-custodian or a nominee of one of the
foregoing, or for exchange of securities for a
different number of bonds, certificates, or other
evidence, representing the same aggregate face amount
or number of units bearing the same interest rate,
maturity that, in any such case, the new securities are
to be delivered to SEI Trust.
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(ii) unless and until SEI Trust receives Oral Instructions or
Written Instructions to the contrary, SEI Trust shall:
(a) pay all income items held by it which call for payment
upon presentation and hold the cash received by it upon
such payment for the account of the Fund;
(b) collect interest and cash dividends received, with
notice to the Fund, to the account of the Fund;
(c) hold for the account of the Fund all stock dividends,
rights and similar securities issued with respect to
any securities held by SEI Trust; and
(d) execute as agent on behalf of the Fund all necessary
ownership certificates required by the Internal Revenue
Code or the Income Tax Regulations of the United States
Treasury Department or under the laws of any state now
or hereafter in effect, inserting the Fund's name, on
such certificate as the owner of the securities covered
thereby, to the extent it may lawfully do so.
9. PURCHASES OF SECURITIES. SEI Trust shall settle purchased securities
upon receipt of Oral Instructions or Written Instructions that specify:
(a) the name of the issuer and the title of the securities, including
CUSIP number if applicable;
(b) the number of shares or the principal amount purchased and accrued
interest, if any;
(c) the date of purchase and settlement;
(d) the purchase price per unit;
(e) the total amount payable upon such purchase;
(f) the name of the person from whom or the broker through whom the
purchase was made. SEI Trust shall upon receipt of securities
purchased by or for the Fund pay out of the moneys held for the
account of the Fund the total amount payable to the person from
whom or the broker through whom the purchase was made, provided
that the same conforms to the total amount payable as set forth in
such Oral Instructions or Written Instructions.
10. SALES OF SECURITIES. SEI Trust shall settle sold securities upon
receipt of Oral Instructions or Written Instructions that specify:
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(a) the name of the issuer and the title of the security, including
CUSIP number if applicable;
(b) the number of shares or principal amount sold, and accrued
interest, if any;
(c) the date of trade and settlement;
(d) the sale price per unit;
(e) the total amount payable to the Fund upon such sale;
(f) the name of the broker through whom or the person to whom the sale
was made;
(g) the location to which the security must be delivered and delivery
deadline, if any; and
SEI Trust shall deliver the securities upon receipt of the total amount
payable to the Fund upon such sale, provided that the total amount
payable is the same as was set forth in the Oral Instructions or
Written Instructions. Notwithstanding the other provisions thereof, SEI
Trust may accept payment in such form as shall be satisfactory to it,
and may deliver securities and arrange for payment in accordance with
the customs prevailing among dealers in securities.
11. REPORTS; PROXY MATERIALS.
(a) SEI Trust shall furnish to the Fund the following reports:
(1) such periodic and special reports as the Fund may reasonably
request;
(2) a monthly statement summarizing all transactions and entries
for the account of the Fund, listing each portfolio security
belonging to the Fund with the adjusted average cost of each
issue and the market value at the end of such month and
stating the cash account of the Fund including
disbursements;
(3) the reports required to be furnished to the Fund pursuant to
Rule 17f-4 of the 1940 Act; and
(4) such other information as may be agreed upon from time to
time between the Fund and SEI Trust.
(b) SEI Trust shall transmit promptly to the Fund any proxy
statement, proxy material, notice of a call or conversion or
similar communication received by it as custodian of the
Property. SEI Trust shall be under no other obligation to inform
the Fund as to such actions or events. For clarification,
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upon termination of this Agreement SEI Trust shall have no
responsibility to transmit such material or to inform the Fund
or any other person of such actions or events.
12. CREDITING OF ACCOUNTS. If SEI Trust in its sole discretion credits an
Account with respect to (a) income, dividends, distributions, coupons,
option premiums, other payments or similar items on a contractual
payment date or otherwise in advance of SEI Trust's actual receipt of
the amount due, (b) the proceeds of any sale or other disposition of
assets on the contractual settlement date or otherwise in advance of
SEI Trust's actual receipt of the amount due or (c) provisional
crediting of any amounts due, and (i) SEI Trust is subsequently unable
to collect full and final payment for the amounts so credited within a
reasonable time period using reasonable efforts or (ii) pursuant to
standard industry practice, law or regulation SEI Trust is required to
repay to a third party such amounts so credited, or if any Property has
been incorrectly credited, SEI Trust shall have the absolute right in
its sole discretion without demand to reverse any such credit or
payment, to debit or deduct the amount of such credit or payment from
the Account, and to otherwise pursue recovery of any such amounts so
credited from the Fund. Nothing herein or otherwise shall require SEI
Trust to make any advances or to credit any amounts until SEI Trust's
actual receipt thereof. The Fund hereby grants a first priority
contractual possessory security interest in and a right of setoff
against the assets maintained in an Account hereunder in the amount
necessary to secure the return and payment to SEI Trust of any advance
or credit made by SEI Trust (including charges related thereto) to such
Account.
13. COLLECTIONS. All collections of monies or other property in respect, or
which are to become part, of the Property (but not the safekeeping
thereof upon receipt by SEI Trust) shall be at the sole risk of the
Fund. If payment is not received by SEI Trust within a reasonable time
after proper demands have been made, SEI Trust shall notify the Fund in
writing, including copies of all demand letters, any written responses
and memoranda of all oral responses and shall await instructions from
the Fund. SEI Trust shall not be obliged to take legal action for
collection unless and until reasonably indemnified to its satisfaction.
SEI Trust shall also notify the Fund as soon as reasonably practicable
whenever income due on securities is not collected in due course and
shall provide the Fund with periodic status reports of such income
collected after a reasonable time.
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