Exhibit 2(j)
CUSTODIAN SERVICES AGREEMENT
THIS AGREEMENT is made as of October 1, 2003 by and between SEI PRIVATE
TRUST COMPANY, a savings association supervised by the Office of Thrift
Supervision ("SEI Trust"), and ▇▇▇▇▇▇▇▇▇▇ MULTI-STRATEGY PLUS 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 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) "INTERESTS" mean the limited liability company interests of any
series or class of the Fund.
(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) "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.
(l) "WRITTEN INSTRUCTIONS" mean (i) written instructions delivered by
hand, mail or facsimile sending device and 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.
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:
(a) at SEI Trust's request, certified or authenticated copies of the
resolutions of the Fund's Board of 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, if applicable, sub-advisory
agreements;
(d) a copy of the distribution/underwriting agreements, if any, with
respect to each class of Interests;
(e) a copy of the Fund's administration agreement;
(f) copies of any distribution and/or member servicing plans and
agreements, if any, 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 material applicable requirements of
the Securities Laws (specifically including, but not limited to, Section 17 of
the 1940 Act and rules promulgated thereunder) and material 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 Written Instructions.
(b) SEI Trust shall be entitled to rely upon any 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 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 Board of Managers or of the
Fund's members, unless and until SEI Trust receives Written
Instructions to the contrary.
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 and be entitled
to rely upon directions or advice, including Written Instructions,
from the Fund.
(b) ADVICE OF COUNSEL. After having received directions or advice from
the Fund pursuant to Section 6(a), 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 Written Instructions SEI Trust receives from the Fund
and the advice it
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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 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 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 Written Instructions, or (ii) to act in accordance with
such directions or advice 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 (specifically including, but not limited to Section 31 thereof and
Rules 31a-1 and 31a-2 thereunder) 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. In the event of the termination of this agreement,
all books and records maintained pursuant to this Section 7 shall be delivered
in accordance with Section 17 of this Agreement.
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 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
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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 in connection with the annual and other audits of
the books and records of the Fund and take all reasonable action as the Fund may
from time to time request, to provide from year to year the necessary
information to such accountants for the expression of their opinion (without any
qualification as to the scope of their examination), including but not limited
to, any opinion in connection with the annual audit of the Fund's financial
statements, preparation of the Fund's Form N-SAR or other annual reports to the
SEC, and with respect to any other requirements of the SEC.
10. SEI SYSTEM. SEI Trust shall retain title to and ownership of any and all
databases, 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 in accordance with Schedule
B or 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.
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, reasonable 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, its agents' or its affiliates' or their
respective officers, directors, agents and
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employees 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, 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 (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
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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 that 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 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 provided that it is ratified annually by the Fund's Board of Managers. 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, to the extent permissible
under the 1940 Act, 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. SUCCESSOR CUSTODIAN. If a successor custodian shall be appointed by the
Board of Managers, SEI Trust shall, upon the termination of this Agreement and
at the cost of the Fund, deliver to such successor custodian at the office of
SEI Trust, duly endorsed and in the form for transfer, all securities, funds and
other properties then held by it hereunder and shall transfer to an account of
the successor custodian all of the securities of the Fund held in a Book-Entry
System. In the event that no Written Instructions designating a successor
custodian shall have been delivered to SEI Trust on or before the date when any
termination of this Agreement shall become effective, then SEI Trust shall have
the right to deliver at the cost of the Fund to a bank or trust company, which
is a "bank" as defined in the 1940 Act, of its own selection, having an
aggregate capital, surplus, and undivided profits, as shown by its last
published report, of not less than $25,000,000, all securities, funds and other
properties held by SEI Trust and all instruments held by SEI Trust relative
thereto and all other property held by it under this Agreement and to transfer
to an account of such successor custodian all of the securities of the Fund held
in a Book-Entry System. Thereafter, such bank or trust company shall be the
successor of SEI Trust under this Agreement, and SEI Trust shall have no further
liability hereunder, except as otherwise specifically provided by this
Agreement. In the event that securities, funds and other properties remain in
the possession of SEI Trust after the date of termination hereof owing to
failure of the Board of Managers to appoint a successor custodian, SEI Trust
shall be entitled to fair compensation for its services during such period as
SEI Trust retains possession of such securities, funds and other properties and
the provisions of this Agreement relating to the duties and obligations of the
Trust shall remain in full force and effect.
The provisions of this Section 17 shall survive any termination of this
Agreement.
18. NOTICES. Notices shall be addressed (a) if to SEI Trust at ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel; (b) if to
the Fund, at 630
▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Chief Financial
Officer; 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.
19. 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.
20. DELEGATION; ASSIGNMENT. This Agreement may not be assigned by any party
without the written consent of the other parties. Notwithstanding the prior
sentence, SEI Trust may assign its rights and delegate its duties hereunder to
any affiliate of SEI Investments Company that is qualified to serve as a
custodian under the 1940 Act provided that SEI Trust gives the Fund 30 days'
prior written notice of such assignment or delegation. If any party shall merge
or consolidate with or sell substantially all of its assets to another
corporation or business entity, provided that such other corporation or business
entity shall assume without qualification or limitation all obligations of that
party hereunder either by operation of law or by agreement, such assumption
shall not be considered a prohibited assignment of this Agreement.
21. 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.
22. FURTHER ACTIONS. Each party agrees to perform such further acts and execute
such further documents as are necessary to effectuate the purposes hereof.
23. 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
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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, unless such
modifications are required by the Securities Laws in which
case the Fund shall notify SEI Trust promptly of such required
modification.
(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.
(e) GOVERNING LAW. This Agreement shall be deemed to be a contract
made in New York and governed by the laws of the State of New
York, 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.
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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: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇▇▇▇ LONG/SHORT FUND, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
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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 Interests,
during the term of this Agreement. SEI Trust will not be
responsible for such property until actual receipt.
2. RECEIPTS AND DISBURSEMENT OF MONEY. SEI Trust, acting upon
Written Instructions, shall open and maintain a physically
separate custodial account or accounts in the United States in
the Fund's name (the "Accounts"), subject only to draft or
order by SEI Trust acting pursuant to the terms of this
Agreement, and shall hold in such account or accounts, subject
to the provisions hereof all cash received by it from or for
the account of the Fund, other than such cash, if any,
maintained by the Fund in a custodial account established and
used in accordance with Rule 17f-3 under the 1940 Act. Such
funds shall be held by SEI Trust in its capacity as custodian
to the Fund and shall be withdrawable by SEI Trust only in
that capacity.
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 of this
Schedule A 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 Interests 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.
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(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
(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; SUB-CUSTODIANS.
(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 Board of Managers, or any officer, employee or
agent of the Fund withdraw any securities.
(b) 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
(provided that such entity shall be qualified to
serve as custodian under the ▇▇▇▇ ▇▇▇) 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).
(c) 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
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and omissions of any sub-custodian chosen by SEI
Trust under the terms of this Section 3.
4. TRANSACTIONS REQUIRING INSTRUCTIONS. Upon receipt of 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;
(b) execute and deliver to such persons as may be
designated in such 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 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 Interests of the
Fund upon delivery thereof to SEI Trust; and
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(i) release and deliver or exchange securities owned by
the Fund for other purposes pursuant to a certified
resolution describing the nature of the corporate
purpose and the name and address of the person(s) to
whom delivery shall be made.
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
borrowings. SEI Trust shall continue to perform such duties
until it receives Written 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
14
custodian of the Property to the registered holder of such
securities. If the registered holder is not the Fund, then
Written 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.
(1) 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;
(2) endorse and deposit for collection, in the
name of the Fund, checks, drafts, or other
orders for the payment of money;
(3) 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;
(4) 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
(5) 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.
(1) 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:
(i) for examination by a broker or
dealer selling for the account of
the Fund in accordance with street
delivery custom;
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(ii) for the exchange of interim
receipts or temporary securities
for definitive securities; and
(iii) 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.
(2) unless and until SEI Trust receives Written
Instructions to the contrary, SEI Trust
shall:
(i) 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;
(ii) collect interest and cash dividends
received, with notice to the Fund,
to the account of the Fund;
(iii) 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
(iv) 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 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; and
16
(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
Written Instructions.
10. SALES OF SECURITIES. SEI Trust shall settle sold securities
upon receipt of Written Instructions that specify:
(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; and
(g) the location to which the security must be delivered
and delivery deadline, if any.
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
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. In the event SEI Trust does not receive
all the necessary information to settle sold securities in
accordance with this Section, the Fund shall take any
reasonable steps, requested by SEI Trust, to obtain the
required information and forward it to SEI Trust in a timely
manner.
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;
17
(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, 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
18
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.
19
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 a month
or terminates before the last day of a 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.
20