Confidential and Proprietary
Not for Reproduction or Re-Distribution
CUSTODIAN SERVICES AGREEMENT
THIS AGREEMENT is made as of October 28, 2008 by and between PFPC TRUST
COMPANY, a limited purpose trust company incorporated under the laws of Delaware
("PFPC Trust") and AMETRINE CAPITAL, INC., a Delaware corporation (the "Fund").
Capitalized terms not otherwise defined shall have the meanings set forth in
Appendix A.
BACKGROUND
A. The Fund is registered as a closed-end, non-diversified management
investment company that intends to file an election to be treated as a business
development company under the Investment Company Act of 1940, as amended (the
"1940 Act"); and
B. The Fund wishes to retain PFPC Trust to provide custodian services,
and PFPC 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. Appointment. The Fund hereby appoints PFPC Trust to provide custodian
services to the Fund as set forth herein, on behalf of each of its investment
portfolios (each, a "Portfolio"), and PFPC Trust accepts such appointment and
agrees to furnish such services. PFPC Trust shall be under no duty to take any
action hereunder on behalf of the Fund or any Portfolio except as specifically
set forth herein or as may be specifically agreed to by PFPC Trust and the Fund
in a written amendment hereto. PFPC Trust shall not bear or otherwise be
responsible for, any fees, costs or expenses charged by any third party service
providers engaged by the Fund or by any other third party service provider.
2. Instructions.
(a) Unless otherwise provided in this Agreement, PFPC Trust shall act
only upon Oral Instructions or Written Instructions.
(b) PFPC Trust shall be entitled to rely upon any Oral Instruction or
Written Instruction it receives pursuant to this Agreement. PFPC 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 Board of
Directors or of the Fund's shareholders, unless and until PFPC Trust receives
Written Instructions to the contrary.
(c) The Fund agrees to forward to PFPC Trust Written Instructions
confirming Oral Instructions (except where such Oral Instructions are given by
PFPC Trust or its affiliates) so that PFPC Trust receives the Written
Instructions by the close of business on the same day that such Oral
Instructions are received. The fact that such confirming Written Instructions
are not received by PFPC 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 PFPC Trust's ability to rely upon such Oral
Instructions.
3. Right to Receive Advice.
(a) Advice of the Fund. If PFPC Trust is in doubt as to any action it
should or should not take, PFPC Trust may request directions or advice,
including Oral Instructions or Written Instructions, from the Fund.
(b) Advice of Counsel. If PFPC Trust shall be in doubt as to any question
of law pertaining to any action it should or should not take, PFPC Trust may
request advice from counsel of its own choosing (who may be counsel for the
Fund, the Fund's investment adviser or PFPC Trust, at the option of PFPC Trust).
(c) Conflicting Advice. In the event of a conflict between directions or
advice or Oral Instructions or Written Instructions PFPC Trust receives from the
Fund, and the advice it receives from counsel, PFPC Trust shall be entitled to
rely upon and follow the advice of counsel.
(d) No Obligation to Seek Advice. Nothing in this section shall be
construed so as to impose an obligation upon PFPC Trust (i) to seek directions
or advice or Oral Instructions or Written Instructions or (ii) to act in
accordance with such directions or advice or Oral Instructions or Written
Instructions.
4. Records; Visits. The books and records pertaining to the Fund and any
Portfolio, which are in the possession or under the control of PFPC Trust, shall
be the property of the Fund. The Fund and Authorized Persons shall have access
to such books and records at all times during PFPC Trust's normal business
hours. Upon the reasonable request of the Fund, copies of any such books and
records shall be provided by PFPC Trust to the Fund or to an authorized
representative of the Fund, at the Fund's expense.
5. 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 PFPC Trust, their
respective subsidiaries and affiliated companies; (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 PFPC 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 Confidential Information and shall not be
subject to such confidentiality obligations if: (a) it is already known to the
receiving party at the time it is obtained; (b) it is or becomes publicly known
or available through no wrongful act of the receiving party; (c) it 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) it is released by the
protected party to a third party without restriction; (e) it is requested or
required to be disclosed by the receiving party pursuant to a court order,
subpoena, governmental or regulatory agency request or law; (f) release of such
information by PFPC Trust is necessary or desirable in connection with the
provision of services under this Agreement; (g) it is Fund information provided
by PFPC Trust in connection with an independent third party compliance or other
review; (h) it is relevant to the defense of any claim or cause of action
asserted against the receiving party; or (i) it has been or is independently
developed or obtained by the receiving party. The provisions of this Section 5
shall survive termination of this Agreement for a period of three (3) years
after such termination.
6. Cooperation with Accountants. PFPC Trust shall cooperate with the Fund's
independent public accountants and shall take all reasonable action to make any
requested information available to such accountants as reasonably requested by
the Fund.
7. PFPC System. PFPC Trust shall retain title to and ownership of any and all
data bases, computer programs, screen formats, report formats, interactive
design techniques, derivative works, inventions, discoveries, patentable or
copyrightable matters, concepts, expertise, patents, copyrights, trade secrets,
and other related legal rights utilized by PFPC Trust in connection with the
services provided by PFPC Trust to the Fund.
8. Disaster Recovery. PFPC 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, PFPC Trust shall, at
no additional expense to the Fund, take reasonable steps to minimize service
interruptions. PFPC 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 PFPC Trust's own intentional misconduct, bad faith
or gross negligence with respect to its duties under this Agreement.
9. Compensation.
(a) As compensation for custody services rendered by PFPC Trust
pursuant to this Agreement, the Fund, on behalf of each of the Portfolios, will
pay to PFPC Trust a fee or fees as may be agreed to in writing from time to time
by the Fund and PFPC Trust. The Fund acknowledges that PFPC Trust may receive
float benefits in connection with maintaining certain accounts required to
provide services under this Agreement.
(b) The undersigned hereby represents and warrants to PFPC Trust that
(i) the terms of this Agreement, (ii) the fees and expenses associated with this
Agreement, and (iii) any benefits accruing to PFPC Trust or to the adviser or
sponsor to the Fund in connection with this Agreement, including but not limited
to any fee waivers, conversion cost reimbursements, up front payments, signing
payments or periodic payments made or to be made by PFPC Trust to such adviser
or sponsor or any affiliate of the Fund relating to this Agreement have been
fully disclosed to the Board of Directors of the Fund and that, if required by
applicable law, such Board of Directors has approved or will approve the terms
of this Agreement, any such fees and expenses, and any such benefits.
(c) Notwithstanding the limitation of liability provisions of this
Agreement or the termination of this Agreement, the Fund shall remain
responsible for paying PFPC Trust the fees and other amounts set forth in this
Agreement and in the applicable fee letter.
10. Standard of Care/Limitations of Liability.
(a) Subject to the terms of this Section 10, PFPC Trust shall be liable
to the Fund (or any person or entity claiming through the Fund) for damages only
to the extent caused by PFPC Trust's own intentional misconduct, bad faith or
gross negligence with respect to its duties under this Agreement ("Standard of
Care").
(b) Notwithstanding anything contained in this Agreement to the
contrary (other than as specifically provided in Section 12(h)(2)(B)(iv) and
Section 12(h)(3)(A) of this Agreement), the Fund shall be responsible for all
filings, tax returns and reports on any transactions undertaken in connection
with this Agreement, or in respect of the Property or any collections undertaken
in connection with this Agreement, which may be requested by any relevant
authority. In addition, the Fund shall be responsible for the payment of all
taxes and similar items (including without limitation penalties and interest
related thereto).
(c) PFPC Trust's liability to the Fund and any person or entity
claiming through the Fund for any loss, claim, suit, controversy, breach or
damage of any nature whatsoever (including but not limited to those arising out
of or related to this Agreement) and regardless of the form of action or legal
theory ("Loss") shall not exceed the fees received by PFPC Trust for services
provided hereunder during the twelve (12) months immediately prior to the date
of such Loss; provided that PFPC Trust's cumulative maximum liability for all
Losses shall not exceed $250,000.
(d) PFPC Trust shall not be liable for damages (including without
limitation damages caused by 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; national emergencies; public enemy; war;
terrorism; riot; fire; flood; catastrophe; sabotage; epidemics; labor disputes;
civil commotion; interruption, loss or malfunction of utilities, transportation,
computer or communications capabilities; insurrection; elements of nature;
non-performance by a third party; failure of the mails; or functions or
malfunctions of the internet, firewalls, encryption systems or security devices
caused by any of the above.
(e) PFPC 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 PFPC Trust reasonably
believes to be genuine. PFPC Trust shall not be liable for any damages that are
caused by actions or omissions taken by PFPC Trust in accordance with Oral
Instructions or Written Instructions or advice of counsel. PFPC Trust shall not
be liable for any damages arising out of any action or omission to act by any
prior service provider of the Fund or for any failure to discover any such error
or omission.
(f) Neither PFPC Trust nor its affiliates shall be liable for any
consequential, incidental, exemplary, punitive, special or indirect damages,
whether or not the likelihood of such damages was known by PFPC Trust or its
affiliates.
(g) No party may assert a cause of action against PFPC 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.
(h) Each party shall have a duty to mitigate damages for which the
other party may become responsible.
(i) This Section 10 shall survive termination of this Agreement.
11. Indemnification. Absent PFPC Trust's failure to meet its Standard of Care
(defined in Section 10 above), the Fund agrees to indemnify, defend and hold
harmless PFPC Trust and its affiliates and their respective directors, trustees,
officers, agents and employees from all claims, suits, actions, damages, losses,
liabilities, obligations, costs and reasonable expenses (including attorneys'
fees and court costs, travel costs and other reasonable out-of-pocket costs
related to dispute resolution) arising directly or indirectly from any of the
following: (a) any action or omission to act by any prior service provider of
the Fund; and (b) any action taken or omitted to be taken by PFPC Trust in
connection with the provision of services to the Fund. This Section 11 shall
survive termination of this Agreement.
12. Description of Services.
(a) Delivery of the Property. The Fund will deliver or arrange for the
delivery to PFPC Trust of all the Property owned by the Portfolios, including
cash received as a result of the distribution of Shares, during the term of this
Agreement. PFPC Trust will not be responsible for any assets until actual
receipt.
(b) Receipt and Disbursement of Money. PFPC Trust, acting upon Written
Instructions, shall open and maintain a separate account for each separate
Portfolio of the Fund (each an "Account"). PFPC Trust shall maintain in the
Account of a particular Portfolio all cash and other assets received from or for
the Fund specifically designated to such Account. PFPC Trust shall make cash
payments from or for the Account of a Portfolio only for:
(i) purchases of securities in the name of a Portfolio, PFPC
Trust, PFPC Trust's nominee or a sub-custodian or nominee
thereof as provided in sub-section (j) and for which PFPC
Trust has received a copy of the broker's or dealer's
confirmation or payee's invoice, as appropriate;
(ii) redemption of Shares of the Fund upon receipt of Written
Instructions;
(iii) payment of, subject to Written Instructions, interest,
taxes (provided that tax which PFPC Trust considers is
required to be deducted or withheld "at source" will be
governed by Section 12(h)(3)(B) of this Agreement),
administration, accounting, distribution, advisory or
management fees and similar expenses which are to be borne
by a Portfolio;
(iv) payment to, subject to receipt of Written Instructions, the
Fund's transfer agent, as agent for the shareholders, of an
amount equal to the amount of dividends and distributions
stated in the Written Instructions to be distributed in cash
by the transfer agent to shareholders, or, in lieu of paying
the Fund's transfer agent, PFPC Trust may arrange for the
direct payment of cash dividends and distributions to
shareholders in accordance with procedures mutually agreed
upon from time to time by and among the Fund, PFPC Trust and
the Fund's transfer agent;
(v) 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
pursuant to this Agreement or delivered to PFPC Trust;
(vi) payments of the amounts of dividends received with respect
to securities sold short;
(vii) payments to PFPC Trust in connection with this Agreement;
(viii) payments to a sub-custodian pursuant to provisions in
sub-section (c) of this Section; and
(ix) other payments, upon Written Instructions.
PFPC Trust is hereby authorized to endorse and collect all checks, drafts or
other orders for the payment of money received as custodian for the Fund.
(c) Receipt of Securities; Sub-custodians.
PFPC 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 or through a sub-custodian or depository. All such
securities shall be held or disposed of only upon Written
Instructions or otherwise pursuant to the terms of this
Agreement. PFPC Trust shall have no power or authority to
assign, hypothecate, pledge or otherwise dispose of any such
securities or other investments, 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 Directors or any officer, employee or
agent of the Fund withdraw any securities upon their mere
receipt.
At PFPC Trust's own expense and for its own convenience,
PFPC Trust may enter into sub-custodian agreements with
other banks or trust companies to perform duties described
in this Agreement with respect to domestic assets. Such bank
or trust company shall have 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 PFPC Trust, or at least twenty
million dollars ($20,000,000) if such bank or trust company
is not a subsidiary or affiliate of PFPC 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, PFPC Trust may enter into arrangements with
sub-custodians with respect to services regarding foreign
assets. Any such arrangement will not be entered into
without prior written notice to the Fund (or as otherwise
provided in the 1940 Act).
Sub-custodians utilized by PFPC Trust may be subsidiaries or
affiliates of PFPC Trust, and such entities will be
compensated for their services at such rates as are agreed
between the entity and PFPC Trust. PFPC Trust shall remain
responsible for the acts and omissions of any sub-custodian
chosen by PFPC Trust under the terms of this sub-section (c)
to the same extent that PFPC Trust is responsible for its
own acts and omissions under this Agreement.
(d) Transactions Requiring Instructions. Upon receipt of Oral
Instructions or Written Instructions and not otherwise, PFPC Trust shall:
(i) deliver any securities held for a Portfolio against the
receipt of payment for the sale of such securities or
otherwise in accordance with standard market practice;
(ii) execute and deliver to such persons as may be designated in
such Oral Instructions or Written Instructions, proxies,
consents, authorizations, and any other instruments received
by PFPC Trust as custodian whereby the authority of a
Portfolio as owner of any securities may be exercised;
(iii) 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 PFPC Trust;
(iv) deliver any securities held for a Portfolio 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 other entity, or the exercise of any
conversion privilege; (v) deliver any securities held for a
Portfolio 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 or
other entity, 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;
(vi) make such transfer or exchanges of the assets of the
Portfolios 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;
(vii) release securities belonging to a Portfolio to any bank or
trust company for the purpose of a pledge or hypothecation
to secure any loan incurred by the Fund on behalf of that
Portfolio; provided, however, that securities shall be
released only upon payment to PFPC Trust of the monies
borrowed, except that in cases where additional collateral
is required to secure a borrowing already made subject to
proper prior authorization, further securities may be
released for that purpose; and repay such loan upon
redelivery to it of the securities pledged or hypothecated
therefor and upon surrender of the note or notes evidencing
the loan;
(viii) release and deliver securities owned by a Portfolio in
connection with any repurchase agreement entered into by the
Fund on behalf of that Portfolio, but only on receipt of
payment therefor; and pay out monies of a Portfolio in
connection with such repurchase agreements, but only upon
the delivery of the securities;
(ix) 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;
(x) release and deliver securities to a broker in connection
with the broker's custody of margin collateral relating to
futures and options transactions;
(xi) release and deliver securities owned by the Fund for the
purpose of redeeming in kind Shares of the Fund upon
delivery thereof to PFPC Trust; and
(xii) release and deliver or exchange securities owned by the
Fund for other purposes.
(e) Use of Book-Entry System or Other Depository. PFPC Trust will
deposit in Book-Entry Systems and other depositories all securities belonging to
the Portfolios eligible for deposit therein and will utilize Book-Entry Systems
and other depositories to the extent possible in connection with settlements of
purchases and sales of securities by the Portfolios, and deliveries and returns
of securities loaned, subject to repurchase agreements or used as collateral in
connection with borrowings. PFPC Trust shall continue to perform such duties
until it receives Written Instructions or Oral Instructions authorizing contrary
actions. Notwithstanding anything in this Agreement to the contrary, PFPC
Trust's use of a Book-Entry System shall comply with the requirements of Rule
17f-4 under the 1940 Act.
PFPC Trust shall administer a Book-Entry System or other depository as follows:
(i) With respect to securities of each Portfolio which are
maintained in a Book-Entry System or another depository, the
records of PFPC Trust shall identify by book-entry or
otherwise those securities as belonging to each Portfolio.
(ii) Assets of each Portfolio deposited in a Book-Entry System or
another depository will (to the extent consistent with
applicable law and standard practice) at all times be
segregated from any assets and cash controlled by PFPC Trust
in other than a fiduciary or custodian capacity but may be
commingled with other assets held in such capacities.
PFPC 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.
(f) Registration of Securities. All securities held for a Portfolio
which are issued or issuable only in bearer form, except such securities
maintained in the Book-Entry System or in another depository, shall be held by
PFPC Trust in bearer form; all other securities maintained for a Portfolio may
be registered in the name of the Fund on behalf of that Portfolio, PFPC Trust, a
Book-Entry System, another depository, a sub-custodian, or any duly appointed
nominee of the Fund, PFPC Trust, a Book-Entry System, a depository or a
sub-custodian. The Fund agrees to furnish to PFPC Trust appropriate instruments
to enable PFPC Trust to maintain or deliver in proper form for transfer, or to
register in the name of its nominee or in the name of a Book-Entry System or in
the name of another appropriate entity, any securities which it may maintain
pursuant to this Agreement. With respect to uncertificated securities which are
registered in the name of the Fund or a Portfolio (or a nominee thereof), PFPC
Trust will reflect such securities on its records based upon the holdings
information provided to it by the issuer of such securities, but notwithstanding
anything in this Agreement to the contrary PFPC Trust shall not be obligated to
safekeep such securities or to perform other duties with respect to such
securities other than to make payment for the purchase of such securities upon
receipt of Oral or Written Instructions, accept in sale proceeds received by
PFPC Trust upon the sale of such securities of which PFPC Trust is informed
pursuant to Oral or Written Instructions, and accept in other distributions
received by PFPC Trust with respect to such securities or reflect on its records
any reinvested distributions with respect to such securities of which it is
informed by the issuer of the securities.
(g) Voting. Neither PFPC Trust nor its nominee shall vote any of the
securities held pursuant to this Agreement by or for the account of a Portfolio,
except in accordance with Written Instructions. PFPC Trust, directly or through
the use of another entity, shall execute in blank and promptly deliver all
notices, proxies and proxy soliciting materials received by PFPC Trust as
custodian of the Property to the registered holder of such securities. If the
registered holder is not the Fund on behalf of a Portfolio, then Written
Instructions or Oral Instructions must designate the person who owns such
securities.
(h) Transactions Not Requiring Instructions. Notwithstanding anything
in this Agreement requiring instructions in order to take a particular action,
in the absence of a contrary Written Instruction PFPC Trust is authorized to
take the following actions without the need for instructions:
(1) Collection of Income and Other Payments.
(A) collect and receive for the account of each
Portfolio, 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 each Portfolio of
such receipt and credit such income to each
Portfolio's custodian account;
(B) endorse and deposit for collection, in the
name of the Fund, checks, drafts, or other
orders for the payment of money;
(C) receive and hold for the account of each
Portfolio all securities received as a
distribution on the Portfolio'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 a Portfolio and
held by PFPC Trust hereunder;
(D) present for payment and collect the amount
payable upon all securities which may mature
or be called, redeemed, retired or otherwise
become payable (on a mandatory basis) on the
date such securities become payable; and
(E) take any action which may be necessary and
proper in connection with the collection and
receipt of the aforementioned income and
other payments and the endorsement for
collection of checks, drafts, and other
negotiable instruments.
(2) Miscellaneous Transactions.
(A) PFPC 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 a
Portfolio in accordance with street
delivery custom;
(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 on behalf of a
Portfolio or PFPC 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 date and call
provisions, if any; provided that,
in any such case, the new securities
are to be delivered to PFPC Trust.
(B) PFPC 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 each Portfolio;
(ii) collect interest and cash dividends
received, with notice to the Fund,
to the account of each Portfolio;
(iii) hold for the account of each
Portfolio all stock dividends,
rights and similar securities issued
with respect to any securities held
by PFPC Trust hereunder; and
(iv) subject to receipt of such
documentation and information as
PFPC Trust may request, execute as
agent on behalf of the Fund all
necessary ownership certificates
required by a national governmental
taxing authority or under the laws
of any U.S. state now or hereafter
in effect, inserting the Fund's
name, on behalf of a Portfolio, on
such certificate as the owner of the
securities covered thereby, to the
extent it may lawfully do so.
(3) Other Matters.
(A) Subject to receipt of such documentation and
information as PFPC Trust may request, PFPC
Trust will, in such jurisdictions as PFPC
Trust may agree from time to time, seek to
reclaim or obtain a reduction with respect
to any withholdings or other taxes relating
to assets maintained hereunder (provided
that PFPC Trust will not be liable for
failure to obtain any particular relief in a
particular jurisdiction); and
(B) PFPC Trust is authorized to deduct or
withhold any sum in respect of tax which
PFPC Trust considers is required to be
deducted or withheld "at source" by any
relevant law or practice.
(i) Segregated Accounts.
(1) PFPC Trust shall upon receipt of Written Instructions
or Oral Instructions establish and maintain
segregated accounts on its records for and on behalf
of each Portfolio. Such accounts may be used to
transfer cash and securities, including securities in
a Book-Entry System or other depository:
(A) for the purposes of compliance by the Fund with the
procedures required by a securities or option exchange,
providing such procedures comply with the 1940 Act and
any releases of the SEC relating to the maintenance of
segregated accounts by registered investment companies;
and
(B) upon receipt of Written Instructions, for other
purposes.
(2) PFPC Trust shall arrange for the establishment of ▇▇▇
custodian accounts for such shareholders holding
Shares through ▇▇▇ accounts, in accordance with the
Fund's prospectuses, the Internal Revenue Code of
1986, as amended (including regulations promulgated
thereunder), and with such other procedures as are
mutually agreed upon from time to time by and among
the Fund, PFPC Trust and the Fund's transfer agent.
(j) Purchases of Securities. PFPC Trust shall settle purchased
securities upon receipt of Oral Instructions or Written
Instructions that specify:
(1) the name of the issuer and the title of the
securities, including CUSIP number if applicable;
(2) the number of shares or the principal amount
purchased and accrued interest, if any;
(3) the date of purchase and settlement;
(4) the purchase price per unit;
(5) the total amount payable upon such purchase;
(6) the Portfolio involved; and
(7) the name of the person from whom or the broker
through whom the purchase was made. PFPC Trust shall
upon receipt of securities purchased by or for a
Portfolio (or otherwise in accordance with standard
market practice) pay out of the monies held for the
account of the Portfolio 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.
(k) Sales of Securities. PFPC Trust shall settle sold securities
upon receipt of Oral Instructions or Written Instructions that
specify:
(1) the name of the issuer and the title of the security,
including CUSIP number if applicable;
(2) the number of shares or principal amount sold, and
accrued interest, if any;
(3) the date of trade and settlement;
(4) the sale price per unit;
(5) the total amount payable to the Fund upon such sale;
(6) the name of the broker through whom or the person to
whom the sale was made;
(7) the location to which the security must be delivered
and delivery deadline, if any; and
(8) the Portfolio involved.
PFPC Trust shall deliver the securities upon receipt of the total
amount payable to the Portfolio upon such sale, provided that the total amount
payable is the same as was set forth in the Oral Instructions or Written
Instructions. Notwithstanding anything to the contrary in this Agreement, PFPC
Trust may accept payment in such form as is consistent with standard market
practice and may deliver assets and arrange for payment in accordance with
standard market practice.
(l) Reports; Proxy Materials.
(1) PFPC Trust shall furnish to the Fund the following reports:
(A) such periodic and special reports as the Fund may
reasonably request;
(B) a monthly statement summarizing all transactions and
entries for the account of each Portfolio, listing each
portfolio security belonging to each Portfolio (with
the corresponding security identification number) held
at the end of such month and stating the cash balance
of each Portfolio at the end of such month;
(C) the reports required to be furnished to the Fund
pursuant to Rule 17f-4 of the 1940 Act; and
(D) such other information as may be agreed upon from time
to time between the Fund and PFPC Trust.
(2) PFPC 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. PFPC Trust shall be under no other obligation to inform
the Fund as to such actions or events. For clarification, upon
termination of this Agreement with respect to a particular
Portfolio PFPC Trust shall have no responsibility to transmit
such material or to inform such Portfolio or any other person of
such actions or events.
(m) Crediting of Accounts. PFPC Trust may in its sole discretion credit
an Account with respect to income, dividends, distributions, coupons, option
premiums, other payments or similar items prior to PFPC Trust's actual receipt
thereof, and in addition PFPC Trust may in its sole discretion credit or debit
the assets in an Account on a contractual settlement date with respect to any
sale, exchange or purchase applicable to the Account; provided that nothing
herein or otherwise shall require PFPC Trust to make any advances or to credit
any amounts until PFPC Trust's actual receipt thereof. If PFPC Trust 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 PFPC 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 PFPC Trust's actual receipt of the
amount due or (c) provisional crediting of any amounts due, and (i) PFPC 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 PFPC Trust is required
to repay to a third party such amounts so credited, or if any Property has been
incorrectly credited, PFPC 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. The Fund hereby
grants to PFPC Trust and to each sub-custodian utilized by PFPC Trust in
connection with providing services to the Fund a first priority contractual
possessory security interest in and a right of setoff against the assets
maintained in an Account in the amount necessary to secure the return and
payment to PFPC Trust and to each such sub-custodian of any advance or credit
made by PFPC Trust and/or by such sub-custodian (including charges related
thereto) to such Account. Notwithstanding anything in this Agreement to the
contrary, PFPC Trust shall be entitled to assign any rights it has under this
sub-section (m) to any sub-custodian utilized by PFPC Trust in connection with
providing services to the Fund which sub-custodian makes any credits or advances
with respect to the Fund.
(n) 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 PFPC Trust) shall be at the sole risk of the Fund. If
payment is not received by PFPC Trust within a reasonable time after proper
demands have been made, PFPC Trust shall notify the Fund in writing, including
copies of all demand letters, any written responses and memoranda of all oral
responses and shall await instructions from the Fund. PFPC Trust shall not be
obliged to take legal action for collection unless and until reasonably
indemnified to its satisfaction. PFPC 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.
(o) Excess Cash Sweep. PFPC Trust will sweep any net excess cash
balances daily into an investment vehicle or other instrument designated in
Written Instructions, so long as the investment vehicle or instrument is
acceptable to PFPC Trust, subject to a fee, paid to PFPC Trust for such service,
to be agreed between the parties. Such investment vehicle or instrument may be
offered by an affiliate of PFPC Trust or by a PFPC Trust client and PFPC Trust
may receive compensation therefrom.
(p) Foreign Exchange. PFPC Trust, its sub-custodians and the respective
affiliates of such entities (together, "Affiliated Entities") jointly or
separately may act as principal and/or agent for foreign exchange ("FX")
transactions for the Fund, and any of the Affiliated Entities may arrange FX
transactions for the Fund with third parties that act as principal or agent.
Affiliated Entities and third parties may receive fees and other compensation in
connection with FX transactions for the Fund, and PFPC Trust may receive from
such entities a portion of their fees or other compensation. Unless PFPC Trust
itself is the principal for a FX transaction, PFPC Trust will not be responsible
and shall have no liability for the actions or omissions of any principal
(including any other Affiliated Entity) to any FX transaction for the Fund nor
any responsibility to monitor the commercial terms of any such FX transactions.
13. Duration and Termination.
(a) This Agreement shall be effective on the date first written above and
unless terminated pursuant to its terms shall continue for a period of one (1)
year (the "Initial Term").
(b) Upon the expiration of the Initial Term, this Agreement shall
automatically renew for successive terms of one (1) year ("Renewal Terms") each,
unless the Fund or PFPC Trust provides written notice to the other of its intent
not to renew. Such notice must be received not less than ninety (90) days prior
to the expiration of the Initial Term or the then current Renewal Term.
(c) In the event of termination, all expenses associated with movement of
records and materials and conversion thereof to a successor service provider
will be borne by the Fund and paid to PFPC Trust prior to any such conversion.
(d) If a party hereto is guilty of a material failure to perform its duties
and obligations hereunder (a "Defaulting Party") the other party (the
"Non-Defaulting Party") may give written notice thereof to the Defaulting Party,
and if such material failure shall not have been remedied within thirty (30)
days after such written notice is given of such material failure, then the
Non-Defaulting Party may terminate this Agreement by giving thirty (30) days
written notice of such termination to the Defaulting Party. In all cases,
termination by the Non-Defaulting Party shall not constitute a waiver by the
Non-Defaulting Party of any other rights it might have under this Agreement or
otherwise against the Defaulting Party.
(e) Notwithstanding anything contained in this Agreement to the contrary
(other than as contained in Section 13(f) below), if in connection with a Change
in Control (for purposes of this Section 13(e) "Change of Control" is defined to
mean a merger, consolidation, adoption, acquisition, change in control,
re-structuring, or re-organization of or any other similar occurrence involving
the Fund or any affiliate of the Fund) the Fund gives notice to PFPC Trust
terminating it as the provider of any of the services hereunder or if the Fund
otherwise terminates this Agreement before the expiration of the then-current
Initial or Renewal Term ("Early Termination"): (i) PFPC Trust shall, if
requested by the Fund, make a good faith effort to facilitate a conversion to
the Fund's successor service provider, provided that PFPC Trust does not
guarantee that it will be able to effect a conversion on the date(s) requested
by the Fund and before the effective date of the Early Termination, the Fund
shall pay to PFPC Trust an amount equal to all fees and other amounts ("Early
Termination Fee") calculated as if PFPC Trust were to provide all services
hereunder until the expiration of the then-current Initial or Renewal Term. The
Early Termination Fee shall be calculated using the average of the monthly fees
and other amounts due to PFPC Trust under this Agreement during the last three
calendar months before the date of the notice of Early Termination (or if not
given the date it should have been given). The Fund expressly acknowledges and
agrees that the Early Termination Fee is not a penalty but reasonable
compensation to PFPC Trust for the termination of services before the expiration
of the then-current Initial or Renewal Term. If the Fund gives notice of Early
Termination after expiration of the specified notice period to terminate this
Agreement in the ordinary course at the end of the then-current Initial or
Renewal Term, the references above to "expiration of the then-current Initial or
Renewal Term" shall be deemed to mean "expiration of the Renewal Term
immediately following the then-current Initial or Renewal Term." If any of the
Fund's assets serviced by PFPC Trust under this Agreement are removed from the
coverage of this Agreement ("Removed Assets") and are subsequently serviced by
another service provider (including the Fund or any affiliate of the Fund): (i)
the Fund will be deemed to have caused an Early Termination with respect to such
Removed Assets as of the day immediately preceding the first such removal of
assets and (ii) at, PFPC Trust's option, either (1) the Fund will also be deemed
to have caused an Early Termination with respect to all non-Removed Assets as of
a date selected by PFPC Trust or (2) this Agreement will remain in full force
and effect with respect to all non-Removed Assets.
(f) In the event that this Agreement is terminated in accordance with the
provisions of Section 13(d) above, Section 13(e) above shall be treated as if it
was not a part of this Agreement (provided that the removal of assets as
referenced in the preamble to the last sentence of such Section 13(e) shall not
be permitted prior to the termination date of this Agreement).
(g) In the event this Agreement is terminated (pending appointment of a
successor to PFPC Trust or vote of the shareholders of the Fund to dissolve or
to function without a custodian of its cash, securities or other property), PFPC
Trust shall not deliver cash, securities or other property of the Portfolios to
the Fund. It may deliver them to a bank or trust company of PFPC Trust's choice,
having aggregate capital, surplus and undivided profits, as shown by its last
published report, of not less than twenty million dollars ($20,000,000), as a
custodian for the Fund to be held under terms similar to those of this
Agreement. PFPC Trust shall not be required to make any delivery or payment of
assets upon termination until full payment shall have been made to PFPC Trust of
all of its fees, compensation, costs, expenses and other amounts owing to it.
PFPC Trust shall have a first priority contractual possessory security interest
in and shall have a right of setoff against the Property as security for the
payment of its fees, compensation, costs, expenses and other amounts owing to
it.
14. Notices. Notices shall be addressed (a) if to PFPC Trust at ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇ ▇▇▇▇▇▇▇▇ (or such
other address as PFPC Trust may inform the Fund in writing); (b) if to the Fund,
at , Attention: (or such other address as the Fund may inform PFPC Trust in
writing); 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 receiving party. If notice is sent by confirming electronic
delivery, 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.
15. 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.
16. Assignment. PFPC Trust may assign this Agreement to any affiliate of PFPC
Trust or of The PNC Financial Services Group, Inc., provided that PFPC Trust
gives the Fund thirty (30) days' prior written notice of such assignment.
17. 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.
18. 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) Non-Solicitation. During the term of this Agreement and for one year
thereafter, the Fund shall not (with the exceptions noted in the immediately
succeeding sentence) knowingly solicit or recruit for employment or hire any of
PFPC Trust's employees, and the Fund shall cause the Fund's sponsor and the
Fund's affiliates to not (with the exceptions noted in the immediately
succeeding sentence) knowingly solicit or recruit for employment or hire any of
PFPC Trust's employees. To "knowingly" solicit, recruit or hire within the
meaning of this provision does not include, and therefore does not prohibit,
solicitation, recruitment or hiring of a PFPC Trust employee by the Fund, the
Fund's sponsor or an affiliate of the Fund if the PFPC Trust employee was
identified by such entity solely as a result of the PFPC Trust employee's
response to a general advertisement by such entity in a publication of trade or
industry interest or other similar general solicitation by such entity.
(c) No Representations or Warranties. Except as expressly provided in this
Agreement, PFPC 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. PFPC Trust disclaims any
warranty of title or non-infringement except as otherwise set forth in this
Agreement.
(d) No Changes that Materially Affect Obligations. Notwithstanding anything
contained 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 PFPC Trust hereunder
without the prior written approval of PFPC Trust, which approval shall not be
unreasonably withheld or delayed. The scope of services to be provided by PFPC
Trust under this Agreement shall not be increased as a result of new or revised
regulatory or other requirements that may become applicable with respect to the
Fund, unless the parties hereto expressly agree in writing to any such increase.
(e) 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.
(f) Information. The Fund will provide such information and documentation
as PFPC Trust may reasonably request in connection with services provided by
PFPC Trust to the Fund.
(g) Governing Law. This Agreement shall be deemed to be a contract made in
Delaware and governed by Delaware law, without regard to principles of conflicts
of law.
(h) 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.
(i) Parties in Interest. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors and
permitted assigns. Except as may be explicitly stated in this Agreement, (i)
this Agreement is not for the benefit of any other person or entity and (ii)
there shall be no third party beneficiaries hereof.
(j) Facsimile Signatures. The facsimile signature of any party to this
Agreement shall constitute the valid and binding execution hereof by such party.
(k) Customer Identification Program Notice. To help the U.S. government
fight the funding of terrorism and money laundering activities, U.S. Federal law
requires each financial institution to obtain, verify, and record certain
information that identifies each person who initially opens an account with that
financial institution on or after October 1, 2003. Consistent with this
requirement, PFPC Trust may request (or may have already requested) the Fund's
name, address and taxpayer identification number or other government-issued
identification number, and, if such party is a natural person, that party's date
of birth. PFPC Trust may also ask (and may have already asked) for additional
identifying information, and PFPC Trust may take steps (and may have already
taken steps) to verify the authenticity and accuracy of these data elements.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
PFPC TRUST COMPANY
By: /s/ ▇▇▇▇▇▇ ▇.___
-----------------------
Name: ▇▇▇▇▇▇ ▇. ___
Title:Vice President &
Senior Director
AMETRINE CAPITAL, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: President
APPENDIX A
Definitions
As used in this Agreement:
(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 the 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 registered with the SEC
under the 1934 Act.
(e) "Oral Instructions" mean oral instructions received by PFPC
Trust from an Authorized Person or from a person reasonably
believed by PFPC Trust to be an Authorized Person. PFPC Trust
may, in its sole discretion in each separate instance,
consider and rely upon instructions it receives from an
Authorized Person via electronic mail as Oral Instructions.
(f) "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 PFPC Trust or which PFPC
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 PFPC Trust from time to
time, from or on behalf of the Fund.
(g) "SEC" means the Securities and Exchange Commission.
(h) "Securities Laws" mean the 1933 Act, the 1934 Act and the
1940 Act.
(j) "Shares" mean the shares of beneficial interest of any series
or class of the Fund.
(j) "Written Instructions" mean (i) written instructions signed by
two Authorized Persons (or persons reasonably believed by PFPC
Trust to be Authorized Persons) and received by PFPC 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 (with
respect to sub-item (ii) above) or by hand, mail or facsimile
sending device.
