FORM OF CUSTODIAN AGREEMENT
FORM
OF
THIS
AGREEMENT made on _______________, 2006, between Stralem Fund, a Delaware
Statutory Trust (the “Trust”) on behalf of the series listed in Exhibit A, and
Pershing Advisors Solutions LLC, a Delaware Limited Liability Company, (the
“Custodian”),
WHEREAS,
the Trust desires that its securities and cash be held and administered by
the
Custodian pursuant to the terms of this Agreement;
NOW,
THEREFORE, in consideration of the mutual agreements herein made, the Trust
and
Custodian agree as follows:
1. Definitions
The
word
“securities” includes stocks, shares, bonds, debentures, notes, mortgages or
other obligations, and any certificates, receipts, warrants or other instruments
representing rights to receive, purchase or subscribe for the same, or
evidencing or representing any other rights or interests therein, or in any
property or assets.
The
words
“authorized person” mean any of the persons duly authorized to give proper
instructions or otherwise act on behalf of the Trust by appropriate resolution
of its Board, and set forth in a certificate as required by Section
2.
The
words
“officers’ certificate” mean a request or direction or certification in writing
signed in the name of the Trust by any two of the President, a Vice President,
the Secretary and the Treasurer of the Trust, or any other persons duly
authorized to sign by the Board of Trustees of the Trust.
The
words
“proper instructions” mean (i) instructions regarding the purchase or sale of
portfolio securities, and payments and deliveries in connection therewith,
given
by an authorized person, such instructions to be given in such form and manner
as the Custodian and the Trust will agree upon from time to time, and (ii)
instructions (which may be continuing instructions) regarding other matters
signed or initialed by an authorized person. Oral instructions will be
considered proper instructions if the Custodian reasonably believes them to
have
been given by an authorized person. The Trust will promptly confirm all oral
instructions in writing. The Custodian will comply with any subsequent proper
instruction which modifies a prior instruction and the sole obligation of the
Custodian with respect to any follow-up or confirmatory instruction will be
to
make reasonable efforts to detect any discrepancy between the original
instruction and such confirmation and to report such discrepancy to the Trust.
The Trust will be responsible, at the Trust’s expense, for taking any action,
including any reprocessing, necessary to correct any such discrepancy or error,
and to the extent such action requires the Custodian to act, the Trust will
give
the Custodian specific proper instructions as to the action
required.
2. Names,
Titles, and Signatures of the Trust’s Officers
An
officer of the Trust will certify to the Custodian the names and signatures
of
authorized persons and the names of the members of the Board, together with
any
changes which may occur from time to time.
3. Additional
Series
The
Trust
is authorized to issue separate classes of shares of beneficial interest
representing interests in separate investment portfolios. The parties intend
that each portfolio established by the Trust, now or in the future, be covered
by the terms and conditions of this agreement.
4. Receipt
and Disbursement of Money
A. Upon
receipt
of proper instructions the Custodian will open and maintain a segregated account
or accounts in the name of the Trust, subject only to draft or order by the
Custodian acting pursuant to the terms of this Agreement. The Custodian will
hold in such account or accounts, subject to the provisions hereof, all cash
received by it from or for the account of the Trust. The Custodian will make
payments of cash to, or for the account of, the Trust from such cash
only:
(a) for
the
purchase of securities for the portfolio of the Trust upon the delivery of
such
securities to the Custodian, registered in the name of the Trust or of the
nominee of the Custodian referred to in Section 7 of this Agreement or in proper
form for transfer;
(b) for
the
purchase or redemption of shares of the Trust upon delivery thereof to the
Custodian, or upon proper instructions from the Trust;
(c) for
the
payment of interest, dividends, taxes, investment adviser’s fees or operating
expenses (including, without limitation thereto, fees for legal, accounting,
auditing and custodian services and expenses for printing and
postage);
(d) for
payments in connection with the conversion, exchange or surrender of securities
owned or subscribed to by the Trust held by or to be delivered to the Custodian;
or
(e) for
other
proper corporate purposes certified by resolution of the Board.
B. The
Custodian
is hereby authorized to endorse and collect all checks, drafts or other orders
for the payment of money received by the Custodian for the account of the
Trust.
C. Upon
receipt
of proper instructions, the Custodian will make federal funds available to
the
Trust as of specified times agreed upon from time to time by the Trust and
the
Custodian
in the amount of checks received in payment for shares of the Trust which are
deposited into the Trust’s account.
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5. Transfer,
Exchange, Redelivery, etc. of Securities
Upon
receipt of proper instructions, the Custodian will release or deliver any
securities of the Trust held by it pursuant to this Agreement. The Custodian
agrees to transfer, exchange or deliver securities held by it hereunder
only:
(a) for
sales
of such securities for the account of the Trust upon receipt by the Custodian
of
payment therefore;
(b) when
such
securities are called, redeemed or retired or otherwise become
payable;
(c) for
examination by any broker selling any such securities in accordance with “street
delivery” custom;
(d) in
exchange for, or upon conversion into, other securities alone or other
securities and cash whether pursuant to any plan of merger, consolidation,
reorganization, recapitalization or readjustment, or otherwise;
(e) upon
conversion of such securities pursuant to their terms into other
securities;
(f) upon
exercise of subscription, purchase or other similar rights represented by such
securities;
(g) for
the
purpose of exchanging interim receipts or temporary securities for definitive
securities;
(h) for
the
purpose of redeeming in kind shares of the Trust upon delivery thereof to the
Custodian; or
(i) for
other
proper corporate purposes.
As
to any
deliveries made by the Custodian pursuant to items (a), (b), (d), (e), (f),
and
(g) above, securities or cash receivable in exchange therefore will be
deliverable to the Custodian.
6. Custodian’s
Acts Without Instructions
Notwithstanding
anything to the contrary, unless and until the Custodian receives an officers’
certificate to the contrary, the Custodian will take the following actions
without prior instructions: (a) present for payment all coupons and other income
items held by it for the account of the Trust, which call for payment upon
presentation and hold the cash received by it upon such payment for the account
of the Trust; (b) collect interest and cash dividends received, with
notice to the Trust, for the account of the Trust; and (c) hold for the account
of the Trust hereunder all stock dividends, rights and similar securities issued
with respect to any securities held by it hereunder.
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The
Custodian has no power or authority to assign, hypothecate, pledge or otherwise
dispose of any security except as authorized by the Trust for its own
account.
7. Registration
of Securities
Except
as
otherwise directed by an officers’ certificate, the Custodian will register all
portfolio securities in street name or in the name of a registered nominee
of
the Custodian. The Custodian will use its best efforts so that the specific
securities held by it are at all times identifiable in its records.
The
Trust
will from time to time 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 its registered nominee, any securities which it may
hold
for the account of the Trust and which may from time to time be registered
in
the name of the Trust.
8. Voting
and Other Action
Neither
the Custodian nor any nominee of the Custodian will vote any of the securities
held hereunder by or for the account of the Trust, except in accordance with
proper instructions received from the Trust. The Custodian will deliver, or
cause to be executed and delivered, to the Trust all notices, proxies and proxy
soliciting materials with relation to such securities, such proxies to be
executed by the registered holder of such securities (if registered otherwise
than in the name of the Trust), but without indicating the manner in which
such
proxies are to be voted.
9. Transfer
Tax and Other Disbursements
The
Trust
will pay or reimburse the Custodian from time to time for any transfer taxes
payable upon transfers of securities made hereunder, and for all other necessary
and proper disbursements and expenses made or incurred by the Custodian in
the
performance of this Agreement.
10. Concerning
Custodian
The
Custodian will be paid for its services pursuant to this Agreement such
compensation as may from time to time be agreed upon in writing between the
two
parties. In addition, the Custodian will be entitled to receive from the Trust
on demand reimbursement for cash disbursements, costs and expenses in connection
with the miscellaneous charges such as postage, insurance and transfer taxes
incurred in the transfer of securities. The Custodian may not charge such
disbursements, costs and expenses against any money held in the name of the
Trust.
The
Custodian will not be liable for any action taken in good faith upon any
certificate herein described or certified copy of any resolution of the Board,
and may rely on the genuineness
of any such document which it may in good faith believe to have been validly
executed.
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The
Trust
agrees to indemnify and hold harmless the Custodian and its nominee, employees,
agents, officers and directors from all taxes, charges, expenses, assessments,
claims and liabilities (including counsel fees) incurred or assessed against
the
Custodian or by the Custodian’s nominee in connection with the performance of
this Agreement, except such as may arise from the Custodian’s or its nominee’s,
employee’s, agent’s, officer’s or director’s own negligent action, negligent
failure to act or willful misconduct. The Custodian is authorized to charge
any
account of the Trust for such items.
In
the
event of any advance of cash for any purpose made by the Custodian resulting
from orders or instructions of the Trust, or in the event that the Custodian
or
its nominee incurs or is assessed any taxes, charges, expenses, assessments,
claims or liabilities in connection with the performance of this Agreement,
except such as may arise from its or its nominee’s own negligent action,
negligent failure to act or willful misconduct, any property at any time held
for the account of the Trust will be security therefore.
11. Lien
on Securities
The
securities may not be subject to any lien or charge of any kind in favor of
the
Custodian or any person claiming through the Custodian.
12. Subcustodians
The
Custodian is hereby authorized to engage a bank or trust company as a
subcustodian for all or any part of the Trust’s assets, so long as any such bank
or trust company is a bank or trust company organized under the laws of any
state of the United States, having an aggregate capital, surplus and undivided
profit, as shown by its last published report, of not less than two million
dollars ($2,000,000) and provided further that, if the Custodian utilizes the
services of a subcustodian, the Custodian will remain fully liable and
responsible for any losses caused to the Trust by the subcustodian as fully
as
if the Custodian was directly responsible for any such losses under the terms
of
this Agreement.
Notwithstanding
anything contained herein, if the Trust requires the Custodian to engage
specific subcustodians for the safekeeping and/or clearing of assets, the Trust
agrees to indemnify and hold harmless the Custodian from all claims, expenses
and liabilities incurred or assessed against it in connection with the use
of
such subcustodian in regard to the Trust’s assets, except as may arise from its
own negligent action, negligent failure to act or willful
misconduct.
13. Reports
by Trust’s Custodian
The
Custodian will furnish the Trust as agreed upon with a daily account statement
summarizing all transactions and entries for the account of Trust. The Custodian
will furnish to the Trust, at the end of every month, a list of the portfolio
securities held under this Agreement showing the market value of each issue
at
the end of such month and summarizing all transactions and entries for the
account of the Trust. The books and records of the Custodian pertaining
to its actions under this Agreement will be open to inspection and audit at
reasonable times and upon prior notice by officers of, and of auditors employed
by, the Trust.
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14. Termination
or Assignment
This
Agreement may be terminated by the Trust, or by the Custodian, on ninety (90)
days’ notice, given in writing and sent by registered mail to the Custodian at
_____________________________________________________________________________,
or to the Trust at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as the case
may
be. Upon any termination of this Agreement, pending appointment of a successor
to the Custodian or a vote of the shareholders of the Trust to dissolve or
to
function without a custodian of its cash, securities and other property, the
Custodian shall not deliver cash, securities or other property of the Trust
to
the Trust, but may deliver them to a bank or trust company of its own selection,
having 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 Trust to be held under terms similar to those of this
Agreement, provided, however, that the Custodian shall not be required to make
any such delivery or payment until full payment is made by the Trust of all
liabilities constituting a charge on or against the properties then held by
the
Custodian or on or against the Custodian, and until full payment is been made
to
the Custodian of all its fees, compensation, costs and expenses, subject to
the
provisions of Section 10 of this Agreement.
This
Agreement may not be assigned by the Custodian without the consent of the Trust,
authorized or approved by a resolution of its Board.
15. Deposits
of Securities in Securities Depositories
No
provision of this Agreement shall be deemed to prevent the use by the Custodian
of a central securities clearing agency or securities depository, provided,
however, that the Custodian and the central securities clearing agency or
securities depository meet all applicable federal and state laws and
regulations, and the Board has approved by resolution prior to the effective
date of this agreement the use by the Custodian of such central securities
clearing agency or securities depository.
16. Cooperation
with Accountants
The
Custodian will cooperate with the Trust’s independent public accountants and
take all reasonable action in the performance of its obligations under this
Agreement to ensure that the necessary information is made available to such
accountants for the expression of their opinion and the preparation of Form
N-17f-1. In this regard, at the end of each annual and semi-annual fiscal period
and on one other occasion selected by the accountant, the Custodian shall permit
the accountants to take whatever action is necessary to confirm all securities
positions held by the Custodian on behalf of the Trust.
17. Records
To
the
extent that the Custodian in any capacity prepares or maintains and retains
any
records for the Trust, the Custodian agrees to give copies of all such records
to the Trust on a periodic basis as required by the Trust and to make any such
records available to the Trust upon reasonable
request. The Custodian agrees that at any time, upon request of the Commission,
it will confirm all securities positions held by the Custodian on behalf of
the
Trust.
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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
and their respective corporate seals to be affixed hereto as of the date first
above-written by their respective officers thereunto duly
authorized.
Executed
in several counterparts, each of which is an original.
| STRALEM FUND | PERSHING ADVISORS LLC |
| By:______________________________ | By:______________________________ |
| Print:____________________________ | Print:____________________________ |
| Title:____________________________ | Title:____________________________ |
| Date:____________________________ | Date:____________________________ |
| Attest:____________________________ | Attest:____________________________ |
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