FORM OF
CUSTODIAN AGREEMENT
THE TIP INSTITUTIONAL FUNDS
This agreement dated as of the 1st day of January 1998 by and between the
TIP Institutional Funds (the "Trust"), a business trust duly organized
under the laws of the State of Delaware and First Union National Bank (the
"Bank").
WHEREAS, the Trust desires to appoint the Bank to act as Custodian of its
portfolio securities, cash and other property from time to time deposited with
or collected by the Bank for the Trust;
WHEREAS, the Bank is qualified and authorized to act as custodian for the
Trust and the separate series thereof (each a "Fund" and collectively, the
"Funds"), and is willing to act in such capacity upon the terms and conditions
herein set forth;
NOW THEREFORE, in consideration of the premises and of the mutual covenants
herein contained, the parties hereto, intending to be legally bound, do hereby
agree as follows:
SECTION 1. The terms as defined in this Section wherever used in this Agreement,
or in any amendment or supplement hereto, shall have meanings herein specified
unless the context otherwise requires.
CUSTODIAN: The term Custodian shall mean the Bank in its capacity as Custodian
under this Agreement.
DEPOSITORY: The term Depository means any depository service 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 by bookkeeping entry without physical
delivery.
PROPER INSTRUCTIONS: For purposes of this Agreement, the Custodian shall be
deemed to have received Proper Instructions upon receipt of written (including
instructions received by means of computer terminals of facsimile
transmissions), telephone or telegraphic instructions from a person or persons
authorized from time to time by the Trustees of the Trust to give the particular
class of instructions. Telephone or telegraphic instructions shall be confirmed
in writing by such persons as said Trustees shall have from time to time
authorized to give the particular class of instructions in question. The
Custodian may act upon telephone or telegraphic instructions without awaiting
receipt of written confirmation, and shall not be liable for the Trust's failure
to confirm such instructions in writing.
SECURITIES: The term Securities means stocks, bonds, rights, warrants and all
other negotiable or non-negotiable paper issued in certificated or book-entry
form commonly known as "Securities" in banking custom or practice.
SHAREHOLDERS: The term Shareholders shall mean the registered owners from time
to time of the Shares of the Trust in accordance with the registry records
maintained by the Trust or against on its behalf.
SECTION 2. The Trust hereby appoints the Custodian as Custodian of the Trust's
cash. Securities and other property, to be held by the Custodian as provided in
this Agreement. The Custodian hereby accepts such appointment subject to the
terms and conditions hereinafter provided. The Bank shall open a separate
custodial account in the name of the Trust on the books and records of the Bank
to hold the Securities of the Trust deposited with, transferred to or collected
by the Bank for the account of each Fund of the Trust, and a separate cash
account to which the Bank shall credit monies received by the Bank for the
account of or from each Fund of the Trust. Such cash shall be segregated from
the assets of others and shall be and remain the sole property of the Trust.
SECTION 3. The Trust shall from time to time file with the Custodian a certified
copy of each resolution of its Board of Trustees authorizing the person or
persons to give Proper Instructions and specifying the class of instructions
that may be given by each person to the Custodian under this Agreement, together
with certified signatures of such persons authorized to sign, which shall
constitute conclusive evidence of the authority of the officers and signatories
designated therein to act, and shall be considered in full force and effect with
the Custodian fully protected in acting in reliance thereon until it receives
written notice to the contrary; provided, however, that if the certifying
officer is authorized to give Proper Instructions, the certification shall be
also signed by the second officer of the Trust.
SECTION 4. The Trust will cause to be deposited with the Custodian hereunder the
applicable net asset vale of Shares sold from time to time whether representing
initial issue, other stock or reinvestments of dividends and/or distributions
payable to Shareholders.
SECTION 5. The Bank, acting as agent for the Trust, is authorized, directed and
instructed subject to the further provisions of this Agreement.
(a) to hold Securities issued only in bearer form;
(b) to register in the name of the nominee of the Bank,
the Bank's Depositories, or sub-custodians, (i)
Securities issued only in registered form, and (ii)
Securities issued in both bearer and registered form,
which are freely interchangeable without penalty;
(c) to deposit any securities which are eligible for
deposit (i) with any domestic or foreign Depository
on such terms and conditions as such Depository may
require, including provisions for limitation or
exclusion of liability on the part of the Depository;
and (ii) with any sub-custodian which the Bank uses,
including any subsidiary or affiliate of the Bank;
(d) (i) to credit for the account of the Trust all proceeds
received and payable on or in respect of the assets
maintained hereunder,
(ii) to debit the account of the Trust for the
cost of acquiring Securities the Bank has
received for the Trust, against delivery of
such Securities to the Bank,
(iii) to present for payment Securities and other
obligations (including coupons) upon
maturity, when called for redemption, and
when income payments are due, and
(iv) to make exchanges of Securities which, in
the Bank's opinion, are purely ministerial
as, for example, the exchange of Securities
in temporary form for Securities in
definitive form or the mandatory exchange of
certificates;
(e) to forward to the Trust, and/or any other person
designated by the Trust, all proxies and proxy
materials received by the Bank in connection with
Securities held int he Trust's account, which have
been registered in the name of the Bank's nominee, or
are being held by any Depository, or sub-custodian,
on behalf of the Bank;
(f) to sell any fractional interest of any Securities
which the Bank has received resulting from any stock
dividend, stock split, distribution, exchange,
conversion or similar activity;
(g) to release the Trust's name, address and aggregate
share position to the issuers of any domestic
Securities in the account of the Trust, provided any
such information to any issuer;
(h) to endorse and collect all checks, drafts or other
orders for the payment of money received by the Bank
for the account of or from the Trust;
(i) at the direction of the Trust, to enroll designated
Securities belonging to the Trust and held hereunder
in a program for the automatic reinvestment of all
income and capital gains distributions on those
Securities in new shares (an "Automatic Reinvestment
Program"), or instruct any
Depository holding such Securities to enroll those
Securities in any Automatic Reinvestment Program;
(j) at the direction of the Trust, to receive, deliver and
transfer Securities and make payments and collections of
monies in connection therewith, enter purchase and sale
orders and perform any other acts incidental or necessary to
the performance of the above acts with brokers, dealers or
similar agents selected by the Trust, including any broker,
dealer or similar agent affiliated with the Bank, for the
account and risk of the Trust in accordance with accepted
industry practice in the relevant market, provided, however,
if it is determined that any certificated Securities
transferred to a Depository or sub-custodian, the Bank, or
the Bank's nominee, the Bank's sole responsibility for such
Securities under this Agreement shall be to safekeep the
Securities in accordance with Section 11 hereof; and
(k) to notify the Trust and/or any other person designated by
the Trust upon receipt of notice by the Bank of any call for
redemption, tender offer, subscription rights, merger,
consolidation, reorganization or recapitalization for which
(i) appears in The Wall Street Journal (New York edition),
The Standard & Poor's Called Bond Record for Preferred
Stocks, Financial Daily Called Bond Service, XX Xxxxx
Services, any official notifications from The Depository
Trust Company and such other publications or services to
which the Bank may from time to time subscribe, (ii)
requires the Bank to act in response thereto, and (iii)
pertain to Securities belonging to the Trust and held
hereunder which have been registered in the name of the
Bank's nominee or are being held by a Depository or
sub-custodian on behalf of the Bank. Notwithstanding
anything contained herein to the contrary, the Trust shall
have the sole responsibility for monitoring the applicable
dates on which Securities with put option features must be
exercised. All solicitation fees payable to the Bank as
agent in connection herewith will be retained by the Bank
unless expressly agreed to the contrary in writing by the
Bank.
Notwithstanding anything in this Section to the contrary, the Bank is authorized
to hold Securities for the Trust which have transfer limitations imposed upon
them by the Securities Act of 1993, as amended, or represent shares of mutual
funds (i) in the name of the Trust, (ii) in the name of the Bank's nominee, or
(iii) with any Depository or sub-custodian.
SECTION 6. The Custodian's compensation shall be as set forth in Schedule A
hereto attached, or as shall be set forth in amendments to such
schedule approved by the Trust and to the extent such
compensation relates to services provided hereunder to such Fund.
All expenses and taxes payable with respect to the Securities in
the account
of the Trust including, without limitation, commission charges on
purchases and sales and the amount of any loss or liability for
stockholders' assessments or otherwise, claimed or asserted
against the bank or against the Bank's nominee by reason of any
registration hereunder shall be charged to the Trust.
SECTION 7. In connection with its functions under this Agreement, the
Custodian shall:
(a) render to the Trust a daily report of all monies received or
paid on behalf of the Trust; and
(b) create, maintain and retain all records relating to its
activities and obligations under this Agreement in such
manner as will meet the obligations of the Trust with
respect to said Custodian's activities in accordance with
generally accepted accounting principles. All records
maintained by the Custodian in connection with the
performance of its duties under this Agreement will remain
the property of the Trust and in the event of termination of
this Agreement will be relinquished to the Trust.
SECTION 8. Any Securities deposited with any Depository or with any
sub-custodian will be represented in accounts in the name of the Bank which
include only property held by the Bank as Custodian for customers in which the
Bank acts in a fiduciary or agency capacity.
Should any Securities which are forwarded to the Bank by the Trust, and which
are subsequently deposited to the Bank's account in any Depository or with any
sub-custodian, or which the Trust may arrange to deposit in the Bank's account
in any Depository or with any sub-custodian, not be deemed acceptable for
deposit by such Depository or sub-custodian, for any reason, and as a result
thereof there is a short position in the account of the Bank with the Depository
for such Security, the Trust agrees to furnish the Bank immediately with like
Securities in acceptable form.
SECTION 9. The Trust represents and warrants that: (i) it has the legal right,
power and authority to execute, deliver and perform this Agreement and to carry
out all of the transactions contemplated hereby; (ii) it has obtained all
necessary authorizations; (iii) the execution, delivery and performance of this
Agreement and the carrying out of any of the transactions contemplated hereby
will not be in conflict with, result in a breach of or constitute a default
under any agreement or other instrument to which the Trust is a party or which
is otherwise known to the Trust; (iv) it does not require the consent or
approval of any governmental agency or instrumentality, except any such consents
and approvals which the Trust has obtained; (v) the execution and delivery of
this Agreement by the Trust will not violate any law, regulation, charter,
by-law, order of any court or governmental agency or judgment applicable to the
Trust; and (vi) all persons executing this Agreement on behalf of the Trust and
carrying out the transactions contemplated hereby on behalf of the Trust are
duly authorized to do so.
In the event any of the foregoing representations should become untrue,
incorrect or misleading, the Trust agrees to notify the Bank immediately in
writing thereof.
SECTION 10. The Bank represents and warrants that: (i) it has the legal right,
power and authority to execute, deliver and perform this Agreement and to carry
out all of the transactions contemplated hereby; (ii) it has obtained all
necessary authorizations; (iii) the execution, delivery and performance of this
Agreement and the carrying out of any of the transactions contemplated hereby
will not be in conflict with, result in a breach of or constitute a default
under any agreement or other instrument to which the Bank is a party or which is
otherwise known to the Bank; (iv) it does not require the consent or approval of
any governmental agency or instrumentality, except any such consents and
approvals which the Bank has obtained; (v) the execution and delivery of this
Agreement by the Bank will not violate any law, regulation, charter, by-law,
order of any court or governmental agency or judgment applicable to the Bank;
and (vi) all persons executing this Agreement on behalf of the bank are duly
authorized to do so. In the event that any of the foregoing representations
should become untrue, incorrect or misleading, the Bank agrees to notify the
Trust immediately in writing thereof.
SECTION 11. All cash and Securities held by the Bank hereunder shall be kept
with the care exercised as to the Bank's own similar property. The Bank may at
its option insure itself against loss from any cause but shall be under no
obligation to insure for the benefit of the Trust.
SECTION 12. No liability of any kind shall be attached to or incurred by the
Custodian by reason of its custody of the Trust's assets held by it from time to
time under this Agreement, or otherwise by reason of its position as Custodian
hereunder except only for its own negligence, bad faith, or willful misconduct
in the performance of its duties as specifically set forth in the Custodian
Agreement. Without limiting the generality of the Foregoing sentence, the
Custodian:
(a) may rely upon the advice of counsel for the Trust; and for any
action taken or suffered in good faith based upon such advice
or statements the Custodian shall not be liable to anyone;
(b) shall not be liable for anything done or suffered to be done
in good faith in accordance with any request or advice of, or
based upon information furnished by, the Trust or its
authorized officers or agents;
(c) is authorized to accept a certificate of the Secretary or
Assistant Secretary of the Trust, or Proper Instructions, to
the effect that a resolution in the form submitted has been
duly adopted by its Board of Trustees or by the Shareholders,
as conclusive evidence that such resolution has been duly
adopted and is in full force and effect; and
(d) may rely and shall be protected in acting upon any signature,
written (including telegraph or other mechanical)
instructions, request, letter of transmittal,
certificate, opinion of counsel, statement, instrument,
report, notice, consent, order, or other paper or document
reasonably believed by it to be genuine and to have been
signed, forwarded or presented by the purchaser, Trust or
other proper party or parties.
SECTION 13. The Trust, its successors and assigns do hereby fully indemnify and
hold harmless the Custodian, its successors and assigns, from any and all loss,
liability, claims, demand, actions, suits and expenses of any nature as the same
may arise from the failure of the Trust to comply with any law, rule, regulation
or order of the United States, any state or any other jurisdiction, governmental
authority, body, or board relating to the sale, registration, qualification of
units of beneficial interest in the Trust, or from the failure of the Trust to
perform any duty or obligation under this Agreement.
Upon written request of the Custodian, the Trust shall assume the entire defense
of any claim subject to the foregoing indemnity, or the joint defense with the
Custodian of such claim, as the Custodian shall request. The indemnities and
defense provisions of this Section 13 shall indefinitely survive termination of
this Agreement.
SECTION 14. This Agreement may be amended from time to time without notice to or
approval of the Shareholders by a supplemental agreement executed by the Trust
and the Bank and amending and supplementing this Agreement in the manner
mutually agreed.
SECTION 15. Either the Trust or the Custodian may give ninety (90) days' written
notice to the other of the termination of this Agreement, such termination to
take effect at the time specified in the notice. In case such notice of
termination is given either by the Trust or by the Custodian, the Trustees of
the Trust shall, by resolution duly adopted, promptly appoint a successor
Custodian (the "Successor Custodian") which Successor Custodian shall be a bank,
trust company, or a bank and trust company in good standing, with legal capacity
to accept custody of the cash and Securities of a mutual fund. Upon receipt of
written notice from the Trust of the appointment of such Successor Custodian and
upon receipt of Proper Instructions, the Custodian shall deliver such cash and
Securities as it may then be holding hereunder directly and only to the
Successor Custodian. Unless or until a Successor Custodian has been appointed as
above provided, the Custodian then acting shall continue to act as Custodian
under this Agreement.
Every Successor Custodian appointed hereunder shall execute and deliver an
appropriate written acceptance of its appointment and shall thereupon become
vested with the rights, powers, obligations and custody of its predecessor
Custodian. The Custodian ceasing to act shall nevertheless, upon request of the
Trust and the Successor Custodian and upon payment of its charges and
disbursements, execute and instrument in form approved by its counsel
transferring to the Successor Custodian all the predecessor Custodian's rights,
duties, obligations and custody.
Subject to the provisions of Section 21 hereof, in case the Custodian shall
consolidate with or merge into any other corporation, the corporation remaining
after or resulting from such consolidation or merger shall ipso facto without
the execution of filing of any papers or other documents, succeed to and be
substituted for the Custodian with like effect as though originally named as
such, PROVIDED, HOWEVER, in every case that said Successor corporation maintains
the qualifications set out in Section 17(f) of the Investment Company Act of
1940, as amended.
SECTION 16. This Agreement shall take effect when assets of the Trust are first
delivered to the Custodian.
SECTION 17. This Agreement may be executed in two or more counterparts, each of
which when so executed shall be deemed to be an original, but such counterparts
shall together constitute but one and the same instrument.
SECTION 18. A copy of the Declaration of Trust of the Trust is on file with the
Secretary of State of Delaware, and notice is hereby given that this instrument
is executed on behalf of the Trustees of the Trust as Trustees and not
individually and that the obligations of this instrument are not binding upon
any of the Trustees, officers of Shareholders of the Trust individually, but
binding only upon the assets and property of the Trust. No Fund of the Trust
shall be liable for the obligations of any other Fund of the Trust.
SECTION 19. The Custodian shall create and maintain all records relating to its
activities and obligations under this Agreement in such manner as will meet the
obligations of the Trust under the Investment Company Act of 1940, as amended,
with particular attention to Section 31 thereof and Rules 31a-1 and 31a-2
thereunder, applicable Federal and state tax laws and any other law or
administrative rules or procedures which may be applicable to the Trust.
Subject to security requirements of the Custodian applicable to its own
employees having access to similar records within the Custodian, the books and
records of the Custodian pertaining to this Agreement shall be open to
inspection and audit at any reasonable times by officers of, attorneys for, and
auditors employed by, the Trust.
SECTION 20. Any sub-custodian appointed hereunder shall be qualified under
Section 17(f) of the 1940 Act and will perform its duties in accordance with the
requirements of this Agreement.
SECTION 21. Nothing contained in this Agreement is intended to or shall require
the Custodian in any capacity hereunder to perform any functions or duties on
any holiday or other day of special observance on which the Custodian is closed.
Functions or duties normally scheduled to be performed on such days shall be
performed on, and as of, the next business day the Custodian is open.
SECTION 22. This Agreement shall extend to and shall 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, authorized or approved by a
resolution of its Board of Trustees.
SECTION 23. All communications (other than Proper Instructions which are to be
furnished hereunder to either party, or under any amendment hereto, shall be
sent by mail to the address listed below, provided that in the event that the
Bank, in its sole discretion, shall determine that an emergency exists, the Bank
may use such other means of communications as the Bank deems advisable.
To the Trust: TIP Institutional Funds
c/o SEI Investments
0 Xxxxxxx Xxxxxx Xxxxx
Xxxx, XX 00000
To the Bank: First Union National Bank
000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
SECTION 20. This Agreement, and any amendments hereto, shall be governed,
construed and interpreted in accordance with the laws of The Commonwealth of
Pennsylvania applicable to agreements made and to be performed entirely within
such Commonwealth.
IN WITNESS WHEREOF, the Trust and the Custodian have caused this Agreement to be
signed by their respective officers as of the day and year first written above.
By: THE TIP INSTITUTIONAL FUNDS
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Name:
Title:
By: FIRST UNION NATIONAL BANK
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Name: Xxxx X. Xxxxxx
Title: Vice President
