EX-99.(J) 3 dex99j.htm CUSTODIAN SERVICES AGREEMENT Exhibit (j) CUSTODIAN SERVICES AGREEMENT
Exhibit (j)
THIS AGREEMENT is made as of May , 2005, by and between SEI PRIVATE TRUST COMPANY, a savings association supervised by the Office of Thrift Supervision (“SEI Trust”), and AETOS CAPITAL OPPORTUNITIES FUND, LLC, a Delaware limited liability company (the “Fund”).
(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). |
(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 |
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(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. |
(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; |
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(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. |
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.
(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 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. |
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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.
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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, neither SEI Trust nor its affiliates shall be liable for any consequential, special or indirect losses or damages, whether or not the likelihood of such losses or damages was known by SEI Trust or its affiliates. |
(d) | No party may assert a cause of action against SEI Trust or any of its affiliates that allegedly occurred more than 12 months immediately prior to the filing of the suit (or, if applicable, commencement of arbitration proceedings) alleging such cause of action. |
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(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.
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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. |
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(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. |
SEI PRIVATE TRUST COMPANY | ||
By: |
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Title: |
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AETOS CAPITAL OPPORTUNITIES FUND, LLC | ||
By: |
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Title: |
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SCHEDULE A
DESCRIPTION OF SERVICES.
SEI Trust shall provide the following list of services to the Fund:
SEI Trust shall make cash payments from or for the Accounts of the Fund only for:
(a) | purchases of securities in the name of the Fund, SEI Trust, SEI Trust’s nominee or a sub-custodian or nominee thereof as provided in Section 9 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 Section 3 with respect to domestic assets. Such bank or trust company shall have an aggregate capital, surplus and undivided profits, according to its last published report, of at least one million dollars ($1,000,000), if it is a subsidiary or affiliate of SEI Trust, or at least twenty million dollars ($20,000,000) if such bank or trust company is not a subsidiary or affiliate of SEI Trust. In addition, such bank or trust company must be qualified to act as custodian and agree to comply with the relevant provisions of applicable rules and regulations. Any such arrangement will not be entered into without prior written notice to the Fund (or as otherwise provided in the 1940 Act).
In addition, SEI Trust may enter into arrangements with sub-custodians with respect to services regarding foreign assets. Any such arrangement will be entered into with prior written notice to the Fund (or as otherwise provided in the 1940 Act).
SEI Trust shall remain responsible for the performance of all of its duties as described in this Agreement and shall hold the Fund harmless from its own acts or omissions, under the standards of care provided for herein, or the acts and omissions of any sub-custodian chosen by SEI Trust under the terms of this Section 3.
4. | TRANSACTIONS REQUIRING INSTRUCTIONS. Upon receipt of 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. |
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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.
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: |
(a) | the name of the issuer and the title of the security, including CUSIP number if applicable; |
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(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.
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SCHEDULE B
Fees
The Fund shall pay SEI Trust compensation at the annual rate of 0.01% of the net assets of the Fund. Such compensation shall be calculated and accrued monthly, and paid to SEI Trust quarterly, within 10 business days of each calendar quarter-end.
If this Agreement shall become effective subsequent to the first day of the month or terminates before the last day of the month, SEI Trust’s compensation for that part of the month in which this Agreement is in effect shall be prorated in a manner consistent with the calculation of the fees as set forth above.
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