BANK LOAN CUSTODIAN AGREEMENT
This
Custodian Agreement (the “Agreement”) is dated as of this ____ day of May, 2009
and is by and between U.S. BANK
NATIONAL ASSOCIATION, a national banking association (“Custodian”) and
ROCHDALE INVESTMENT
TRUST, a Delaware business trust (the “Trust”) on behalf of Rochdale Fixed Income
Opportunities Portfolio (the “Series”).
WHEREAS,
the Trust is an open-end management investment company under the Investment
Company Act of 1940, as amended (the “1940 Act”), with shares of beneficial
interest organized into separate series or portfolios;
WHEREAS, the Series
is a separate investment portfolio of the Trust;
WHEREAS, Rochdale
Investment Management (the “Manager”) is the investment manager of the
Trust and manages the day-to-day and portfolio investment activities of the
Trust in accordance with the applicable governing documents of the Trust;
WHEREAS,
the Custodian is a bank having the qualifications prescribed in Section 26(a)(1)
of the 1940 Act;
WHEREAS,
the Trust now holds or hereafter may from time to time acquire various
credit-related assets, which may include syndicated commercial bank loans and/or
participations therein (“Loans”), investment grade or non-investment grade bonds
or debentures, asset-backed and mortgage-backed securities and other debt
securities (each, a “Security” and collectively, the “Securities”),
WHEREAS,
in acquiring any Loans that may comprise Securities, the Trust, or the Manager
on behalf of the Trust, will have obtained, or shall make arrangements to
obtain, from the seller, obligor, issuer or bank agent, as the case may be, of
any such Loan items, each related instrument, security, assignment agreement
and/or other agreements or documents, if any, as may be necessary or appropriate
to evidence such Loan and the delivery and transfer thereof to the Trust, and
the Trust’s individual ownership thereof (collectively, “Financing
Documents”);
WHEREAS,
the Trust, desires to appoint the Custodian as its custodial agent to hold any
Financing Documents which the Trust, or the Manager on behalf of the Trust, may
deliver or cause to be delivered to the Custodian hereunder, with respect to
such Loans as the Trust, or the Manager on behalf of the Trust, may identify to
the Custodian as being placed in custody hereunder, and to hold, invest and
disburse the Payments which the Custodian may receive with respect to such Loan
from time to time hereunder, all as more fully hereafter provided;
WHEREAS,
the Trust wishes to provide for the investment from time to time and holding in
custody of the various Securities held or to be held by the Trust;
WHEREAS,
the Trust wishes to provide for the short-term investment from time to time of
certain Payments received by the Custodian from the Securities, pending
disbursement to or upon the order of the Trust (the investment earnings received
therefrom, collectively, “Investment Earnings”); and
WHEREAS,
the Custodian is willing to accept such appointment, upon and subject to the
terms and provisions hereof.
NOW
THEREFORE, in consideration of the mutual agreements contained herein, the
receipt and sufficiency of which are hereby acknowledged, the Trust on behalf of
the Series and the Custodian hereby agree as follows:
1. Appointment as the
Custodian. Subject to the terms and conditions hereof, the
Trust hereby appoints the Custodian as the Trust’s custodial agent (1) to hold
in safekeeping such Securities, and any related Financing Documents, which the
Trust, or the Manager on behalf of the Trust, may deliver to the Custodian
hereunder from time to time, and (2) to receive, hold, invest and disburse the
Payments and other assets which the Custodian may receive from time to time in
respect of such Securities, all in accordance with and subject to the terms of
this Agreement. The Securities held hereunder, any Financing
Documents in respect thereof held by the Custodian hereunder, any Payments in
respect of such Securities received and held by the Custodian hereunder and any
Investment Earnings received and held hereunder by the Custodian from the
investment of such Payments (or the reinvestment of such Investment Earnings),
and any other assets held by the Custodian from time to time pursuant
to the terms hereof, are sometimes referred to herein, collectively, as the
“Assets”. The Custodian shall hold all such Assets specifically
allocated to the Trust which are not held in a book-entry system or a depository
in a separate account for the Trust in the name of the Trust physically
segregated at all times from those of any other person or persons.
2. Establishment of Custody
Account; Location of Document Custody. There shall be and
hereby is established by the Trust, with the Custodian, an account which will be
designated Rochdale Fixed Income Opportunities Portfolio” (the
“Account”). All Financing Documents received by the Custodian shall
be held by the Custodian at its facilities in Boston, Massachusetts (unless and
until advance notice to the contrary is given by the Custodian to the Trust,
designating another location);
3. Duties of the
Custodian.
a) The
Custodian shall (i) accept such Securities and Financing Documents as may be
delivered to it from time to time by the Trust, the Manager on behalf of the
Trust, or by any third party in connection with the Trust’s Securities
transactions (ii) deposit on the date of receipt into the Account any
Payments received by the Custodian and identified for deposit into the Account,
(iii) disburse, if requested in writing by the Trust on any Business Day (as
hereafter defined) the available cash amount on deposit in the Account, by 4:00
p.m. on such date per standing wire instructions as defined below or such other
instructions as the Trust may provide in writing (in each case provided such
instructions are received prior to 11 a.m. on such date), (iv) invest
by 4:00 p.m. on any Business Day, the cash amount in the Account in the
Custodian’s “U.S. Bank Insured Money Market Savings Account” (referred to herein
as “USBIM”), or such other money market account of the Custodian as the Trust
may instruct in writing (provided such instructions to invest in a money market
account other than USBIM are received by the Custodian prior to 11 a.m. of such
date), and (v) furnish the Trust with the following periodic
reports: (A) daily aggregate balance reports of the Securities and
cash (Payments and Investment Earnings) then held hereunder by the Custodian,
and (B) monthly statements reflecting activity in the Account since the last
most recent such monthly statement, in each case in the usual form furnished by
the Custodian for such type of account (or as otherwise mutually agreed upon
between the Trust and the Custodian).
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b) If
Payments are not received by the Custodian on the date on which they are due
(“Payment Date”) as reflected in the Payment Schedules (as such term is defined
in Section 4 below), the Custodian (1) shall promptly, but in no event later
than one (1) Business Day after the related Payment Date, make telephonic
inquiry to the party obligated under the Financing Documents received by the
Custodian (if any) to make such Payment the “Obligor”), or paying agent (as
applicable), of the Custodian’s failure to receive timely payment, and (2) if
such payment is not received within three Business Days of its due date, shall
notify the Trust of the Custodian’s failure to receive such scheduled
Payment. The Custodian shall have no responsibility with respect to
the collection of payments which are past due, other than the duty to notify the
Obligor (or paying agent, as applicable) and the Trust as provided
herein.
c) The
Custodian shall undertake reasonable efforts to forward to the Trust promptly a
copy of all written notices (other than payment and rate notices) and
communications identified as being sent to it in connection with the Securities
held hereunder, which it receives from an Obligor, participating bank or agent
bank under the Financing Documents, or any other party, and which indicates
action is required on the part of the Trust (including without limitation any
consent, solicitation, vote or similar action), such notice to be sent in
accordance with Section 15 below. Notwithstanding the foregoing, the
Custodian shall not be liable for any failure to forward, or delay on its part
in forwarding, any such notice to the Trust; and in no instance shall the
Custodian be under any duty or obligation to take any action on behalf of the
Manager and/or the Trust in respect of the exercise of any voting or consent
rights, or similar actions.
d) The
Custodian shall establish and maintain procedures to segregate, and keep
segregated, the assets of Trust separate and separately identifiable from the
Custodian’s other assets, including those of its other customers.
e) In
furtherance of, and without limitation of, the duties and obligations of the
Custodian as set forth in this Agreement, the Custodian represents, covenants
and warrants as follows:
(i) it
is duly organized and validly existing under the laws of the jurisdiction of its
organization and is in good standing thereunder, and it, and its signatories,
have the requisite power and authority to enter into, deliver and perform its
obligations under this Agreement;
(ii) to
the best of the Custodian’s knowledge, it will not, by entering into this
Agreement (A) be required to take any action contrary to its constitutional
documents or any applicable statute, law or regulation of any jurisdiction which
would materially limit or materially adversely affect its ability to perform its
duties under this Agreement or (B) breach or cause to be breached any
undertaking, agreement, contract, statute, rule or regulation to which it is a
party or by which it is bound which, would materially limit or materially
adversely affect its ability to perform its duties under this
Agreement;
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(iii) it
will comply in all material respects with all applicable laws, regulations and
orders to which it may be subject, and it will maintain in full force and effect
all material registrations, licenses or consents of any governmental entity or
other authority that may be required in connection with its
activities;
(iv) the
various procedures and systems which it has implemented with regard to
safekeeping from loss or damage attributable to fire, flood, theft or any other
disaster or other cause of the records and data of the Trust, and the
Custodian’s equipment, systems, facilities, and other property used in the
performance of its obligations are hereunder, to the best of the Custodian’s
knowledge, reasonable and adequate and it will make such changes therein and
enhancements thereto from time to time as may be reasonably required in order to
ensure the secure performance of its obligations hereunder;
(v) it
owns or otherwise has the full right to employ and use all systems, computer
software programs, materials, methods and processes employed by it in rendering
the services hereunder, and, to the best of the Custodian’s knowledge, its
services hereunder do not infringe upon or violate the intellectual property or
other rights of any third party;
(vi) it
has in place and will maintain physical, electronic and procedural safeguards
reasonably designed to protect the security, confidentiality and integrity of,
and to prevent unauthorized access to or use of records and information relating
to consumers or customers of the Trust, and shall notify the Trust immediately
in the event of any breach of those safeguards; and
(vii) it
shall maintain a fidelity bond covering larceny and embezzlement and an
insurance policy with respect to errors and omissions coverage in amounts that
are appropriate in light of its duties and responsibilities hereunder. Upon the
request of the Trust, the Custodian shall provide evidence that coverage is in
place. The Custodian shall notify the Trust should its coverage with respect to
fidelity or errors and omissions coverage be canceled. Such notification shall
include the date of cancellation and the reasons therefore. The Custodian shall
notify the Trust of any material claims against it with respect to services
performed under this Agreement, whether or not they may be covered by insurance,
and shall notify the Trust should the total outstanding claims made by the
Custodian under its insurance coverage materially impair, or threaten to
materially impair, the adequacy of its coverage.
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4. Regarding the Custodian;
Certain Protections.
a) The
Custodian shall use reasonable professional diligence to ensure the accuracy of
all services performed under this Agreement, but the Custodian shall have no
liability under or pursuant to this Agreement or the custodial arrangement
established hereby except for and to the extent of the Custodian’s negligence or
willful misconduct in breach of the terms of this Agreement. The
Custodian shall have no responsibilities or duties whatsoever under this
Agreement, or otherwise in respect of the Account, the Assets or the Financing
Documents, except for such responsibilities as are expressly set forth herein,
and except for the duty to exercise reasonable care in the physical safekeeping
of the Securities and Financing Documents which it may receive hereunder, any
Payments it may receive hereunder and any Investments Earnings it may receive
hereunder, from time to time, in accordance with and subject to the terms of
this Agreement. No implied covenants or duties shall be read into
this Agreement against or on the part of the Custodian. The Custodian
may consult with counsel (which may include, without limitation, in-house
counsel) and shall be protected in any action reasonably taken in good faith in
accordance with the advice of such counsel. The Custodian may rely
conclusively on any notice, certificate or other document furnished to it
hereunder and reasonably believed by it in good faith to be
genuine. The Custodian shall not be liable for any action taken by it
in good faith and reasonably believed by it to be within the discretion or
powers conferred upon it, or taken by it pursuant to any direction or
instruction by which it is governed hereunder, or omitted to be taken by it by
reason of the lack of direction or instruction required hereby for such action.
The Custodian shall in no event be liable for the application or misapplication
of funds by any other person, or for the acts or omissions of any other person
(including, without limitation, the Trust, any Obligor or paying agent). The
Custodian shall not be bound to make any investigation into the facts or matters
stated in any certificate, report or other document, subject to requirements
concerning Written Instructions as provided in Section 8. The
Custodian may exercise or carry out any of its duties under this Agreement
either directly (except as otherwise provided herein with respect) or indirectly
through agents or attorneys, and shall not be responsible for any acts or
omissions on the part of an agent or attorney appointed with due
care. In case any question arises as to its duties hereunder, the
Custodian may request instructions from the Trust and shall be entitled at all
times to refrain from taking any action unless it has received Written
Instructions (as defined herein) from such; and the Custodian shall in all
events have no liability, risk or cost for any action taken pursuant to and in
compliance with Written Instructions. The Custodian shall not be
deemed to have knowledge or notice of any matter unless actually known to an
officer of the Custodian working in its Corporate Trust Department or unless the
Custodian has received written notice thereof at its Corporate Trust Department
making reference to this Agreement. In no event shall the Custodian
be under any obligation to take any action to preserve, protect, enforce or
exercise any rights in the Securities, or under or in respect of the Financing
Documents, or to perform any obligations of the Trust thereunder. In
no event shall the Custodian be liable for special, indirect or consequential
damages arising out of or in connection with this Agreement or the arrangement
contemplated hereby. The Custodian is authorized to delegate its
obligations hereunder only with prior notice to and consent from the Trust; and
provided further that (i) any such sub-agent shall be duly qualified to perform
the specific services delegated, (ii) any such sub-agent shall be the agent of
the Custodian and not the agent of the Trust, and the Custodian shall be fully
responsible for the acts of each sub-agent, and shall not be relieved of any of
its responsibilities hereunder, and (iii) the Custodian shall be obligated to
provide such information regarding the sub-agent and its relationship with the
sub-agent as the Trust may reasonably request.
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b) The
Custodian shall accept such Financing Documents, if any, in respect of the
Securities as may be delivered to it from time to time by the
Trust. The Custodian shall be under no obligation to examine or
review, or determine the sufficiency of, any of the Financing Documents or to
provide any certification with respect thereto, whether received by the
Custodian as original documents, photocopies, by facsimile or otherwise; and the
Custodian shall not be responsible for the sufficiency, genuineness, validity,
completeness, enforceability or contents of any of the Financing Documents, or
for the genuineness or due authority of any signature appearing
thereon. Without limiting the foregoing, the Custodian is under no
duty to review such Financing Documents to determine whether necessary steps
have been taken to transfer the related Securities, or applicable interest or
participation therein. The Custodian shall be under no obligation to
require delivery of any instrument, document or agreement constituting,
evidencing or representing any Securities, other than to receive such Financing
Documents, if any, as may be delivered or caused to be delivered to it by the
Trust. Delivery of any Security may be made by, and may be
represented solely by, delivery to the Custodian of a facsimile or photocopy of
an assignment agreement (an “Assignment Agreement”) or a confirmation or
certification from the Trust to the effect that it has acquired such Security
and/or has received or will receive, and/or will deliver to the Custodian,
appropriate Financing Documents constituting, evidencing or representing such
Security (such confirmation or certification, together with any Assignment
Agreement, collectively, an “Assignment Agreement or Confirmation”), in any case
without delivery of any promissory note, participation certificate or similar
instrument (collectively, an “Instrument”). If an original Instrument
shall be or shall become available with respect to any such Security, it shall
be the sole responsibility of the Trust to make or cause delivery thereof to the
Custodian, and the Custodian shall be under no obligation at any time or times
to determine whether any such original Instrument has been issued or made
available with respect to any Security, and shall not be under any obligation to
compel or cause delivery of such Instrument to the Custodian. Any
reference to “Financing Documents” appearing herein shall be deemed to include,
without limitation, any such Instrument and/or Assignment Agreement or
Confirmation.
c) The
Custodian shall promptly upon the Trust’s written request from time to time,
deliver to the Trust’s, or as the Trust may specify (in each case, as directed
in such instruction), any Financing Documents being held hereunder in respect of
any Securities.
5. Certain Terms Regarding
Payments.
a) The
Custodian shall be only responsible and accountable for Payments (and Investment
Earnings) actually received by it; any and all credits and payments, and other
items, added to the Account shall be conditional upon clearance and actual
receipt by the Custodian of final payment thereon. In no instance
shall the Custodian be under any duty or obligation to advance funds
hereunder. In the event the Custodian shall elect in any instance to
make any advance or disbursement of funds on behalf or for the benefit of the
Trust or pursuant to this Agreement in connection with the arrangement
contemplated hereby, or if there shall exist at any time or times an overdraft
in respect of the cash position of the Account (whether in connection with any
Security settlement or assumed settlement, or otherwise), such amounts shall be
repaid immediately to the Custodian by the Trust (and repayment of such amount
to the Custodian shall be indemnified pursuant to Section 6
hereof).
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b) The
proceeds of any investment of the Payments shall be credited to the Account,
unless otherwise instructed by the Trust. Except as otherwise
provided herein specifically including Section 3(a) above, the Custodian shall
have no obligation to invest (or otherwise to pay any interest on) any funds
held on or credited to the Account in the absence of receipt by the Custodian of
investment instructions from the Trust. The Custodian shall have no
responsibility or liability for any loss on any investment made by the Custodian
pursuant to and in compliance with the instructions of the Trust.
c) Subject
to the provisions of Section 3(a) hereof, the Custodian shall wire transfer
funds on deposit in the Account to the Trust pursuant to and in compliance with
Written Instructions.
d) The
Custodian shall not be obliged to accept or administer any Securities hereunder
which are not denominated in U.S. dollars.
6. Certain Terms Regarding
Reports. Any reports given by the Custodian hereunder with
respect to the Assets shall be in such format and context as shall be mutually
agreed upon between the Custodian and the Trust; provided however, that in
rendering any reports hereunder with respect to the Assets in its possession,
the Custodian shall be entitled to rely conclusively upon any information which
it may receive from the Trust (including any trade ticket or other Information,
as defined below), or in the absence of any such information from the Trust or
its agents, from any participating bank, bank agent or Obligor in respect of any
Security (collectively, “Database Information Sources”). Each such
report shall be subject to the terms and conditions of the Agreement, whether or
not expressly stated therein. In no instance will the Custodian be
under any obligation to perform or determine any market valuation of any
Security, or other Asset, in any report; and in no instance shall the Custodian
be under any duty or obligation to verify, confirm, independently determine or
inadvertently update (whether from third party or public sources or from
examination of Financing Documents or otherwise) any information provided to it
from time to time from the Database Information Sources, or otherwise tracked by
the Custodian hereunder, although the Custodian shall assist the Trust and its
agents, including U.S. Bancorp Fund Services, LLC as its administrator, in good
faith with respect to its responsibilities.
7. Responsibilities of the
Trust with respect to Loans. With respect to each Loans held by
the Custodian hereunder in accordance with the provisions hereof, the Trust
shall (a) cause the Financing Documents evidencing such Loans, as the case
may be, to be delivered to the Custodian; (b) include with such Financing
Documents with respect to each Loan an amortization
schedule of principal payments and a schedule of the interest payable date(s)
(together, the “Payment Schedule”), identifying the amount and due dates of all
scheduled principal and interest payments for such Loans, as the case
may be, and such other information with respect to the related Loans, as the case
may be, and Financing Documents (which may be in a trade ticket format mutually
acceptable to the Custodian and the Trust) as the Custodian reasonably may
require in order to enable the Custodian to perform its services hereunder
(collectively, “Portfolio Information”), in such form and format as the
Custodian reasonably may require; (c) take, or cause to be taken, all actions
necessary to acquire good title to such Loans, as the case
may be, (or the participation therein, as the case may be), as and to the extent
intended to be acquired; and (d) cause and direct Payments in respect of the
Loans to be
made to the Custodian. The Custodian shall be entitled to rely upon
the Portfolio Information provided to it by the Trust without any obligation on
the part of the Custodian independently to verify, investigate, recalculate,
update or otherwise confirm the accuracy or completeness thereof; and the
Custodian shall have no liability for any delay or failure on the part of the
Trust in providing necessary Portfolio Information to the Custodian, or for any
inaccuracy therein or incompleteness thereof. With respect to each
such Loans, the
Custodian shall be entitled to rely on any information and notices it may
receive from time to time from the related bank agent, Obligor or similar party
with respect to the related Loans, and shall be
entitled to update its records on the basis of such information or notices
received, without any obligation on its part independently to verify,
investigate or recalculate such information.
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8. Instructions; Authority to
Act; Protections.
a) Unless
otherwise provided in this Agreement, the Custodian shall act only upon Written
Instructions. The Custodian shall be entitled to rely upon any
Written Instruction it receives from an Authorized Person (defined below)
pursuant to this Agreement. The Custodian may assume that any Written
Instructions received hereunder are not in any way inconsistent with the
provisions of organizational documents of the Trust or of any vote, resolution
or proceeding of the Trust, unless and until the Custodian receives Written
Instructions to the contrary.
b) The Trust
shall certify to the Custodian the names, titles, and signatures of Authorized
Persons who are authorized to give Written Instructions to the Custodian on
behalf of the Trust. The Trust agrees that, whenever any change in
such authorization occurs, it will file with the Custodian a new list of
certified names, titles, and signatures which shall be signed by at least one
officer previously certified to the Custodian if such officer still holds an
office with the Trust. The Custodian is authorized to rely and act
upon the names, titles, and signatures of the individuals as they appear in the
most recent certified list which has been delivered to the
Custodian.
c) Notwithstanding
any other provision of this Agreement, the Custodian shall have no
responsibility to ensure that any investment by the Manager on behalf of the
Trust is authorized. Notwithstanding any other term or provisions of
this Agreement to the contrary, other than with respect to investment of funds
held hereunder, the Custodian shall be entitled to rely upon and shall be deemed
to have received proper instruction and authority to act hereunder upon its
receipt of instructions from the Trust, provided such instructions otherwise
comport with the provisions hereof.
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d) “Authorized
Person” means any person authorized by the Trust, on the list attached hereto as
Schedule A (as
amended from time to time), to give Written Instructions on behalf of the
Trust. An Authorized Person’s scope of authority may be limited by
setting forth such limitation in a written document signed by both parties
hereto.
e) “Written
Instructions” mean (i) written instructions signed by two Authorized Persons and
received by the Custodian, 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. Written
Instructions may be delivered electronically or by hand, electronic mail or
facsimile sending device.
9. Compensation; Expenses;
Indemnification.
a) In
consideration of the services rendered pursuant to this Agreement, the
Trust shall pay the Custodian the compensation set forth on Schedule B hereto;
and the Trust shall reimburse the Custodian for all costs, advances,
disbursements and expenses (including but not limited to reasonable attorneys’
fees and expenses) made or incurred by the Custodian in connection with this
Agreement or the performance or administration of its services and duties
hereunder. The Custodian shall remain entitled to such compensation
and reimbursement earned or accrued prior to termination of this Agreement
pursuant to Section 10, or, if later, until the date when the Custodian receives
sufficient written instruction from the Trust for delivery to the Trust, or
another the Custodian acting on its behalf, of any Assets which then continue to
be held by the Custodian hereunder.
b) The Trust
shall and does hereby agree to indemnify and hold harmless, and defend, the
Custodian, its officers, directors and employees (each, an “Indemnified Party”)
for and from any and all costs and expenses (including, without limitation,
reasonable attorneys fees), and any and all losses, damages, taxes (other than
payment by the Custodian of its own income taxes payable, if any, on the fee
compensation earned by it hereunder), charges, assessments, claims and
liabilities (collectively, “Losses”), that may arise, be brought against or
incurred by any Indemnified Party at any time or times as a result of, relating
to, or arising out of this Agreement, or the administration or performance by
the Custodian of its duties or services hereunder, or the relationship between
the Trust, along with the Trust, and the Custodian created hereby, other than
such Losses as are directly caused by the Custodian’s own actions or omission
constituting negligence, bad faith or willful misconduct in the performance of
its duties or from reckless disregard by it of its obligations and duties
hereunder, or resulting from a breach of an express representation, covenant or
warranty made by it under Section 3(e) hereof. The foregoing
indemnification, agreement to hold harmless and to defend shall survive the
termination of this Agreement.
c) To secure
the obligations of the Trust to the Custodian under this Section 9 (and
under Section 5 hereof), the Custodian shall have and is hereby granted a
continuous, first priority security interest in, lien against and right of
set-off against all Assets held hereunder from time to time, including without
limitation all funds held in or credited to the Trust, the Securities and any
Financing Documents held hereunder from time to time. If the
Trust fails at any time or times to make payment to the Custodian promptly
of any amount owed to the Custodian under or pursuant to this Agreement,
following reasonable notice of non-payment and demand, the Custodian shall be
entitled, among other things, to utilize and pay to itself or set-off against
any available cash balance in the Account, and to dispose of Assets to the
extent necessary to obtain payment. The foregoing shall be in
addition to (and not in limitation of) any and all rights and remedies otherwise
available to the Custodian under applicable law.
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10. Proprietary and Confidential
Information.
(a) Confidentiality / Proprietary
Information. The Custodian agrees on behalf of itself and its agents,
officers, and employees to treat confidentially and as proprietary information
of the Trust all records and other information relative to the Trust
(collectively, the “Confidential Information”), and not use such records and
information for any purpose other than performance of its responsibilities and
duties hereunder, and not to disclose such information except where the
Custodian may be exposed to civil or criminal proceedings for failure to comply
with a legally compelled duty to disclose (whether by interrogatories,
subpoenas, civil investigative demands or otherwise) or by a specific request
made by a governmental authority or agency having jurisdiction over the
Custodian. In case of any such request or demand for disclosure of
Confidential Information, the Custodian will use reasonable efforts to notify
the Trust promptly and to secure instructions from an Authorized Person as to
such disclosure, unless prohibited by law from making such notification. The
Custodian will use all reasonable efforts to cooperate with the Trust to enable
the Trust to obtain a protective order or other similar
relief. Subject to the foregoing, if, in the opinion of its legal
counsel, whether in-house or outside, and in the absence of a protective order
or waiver, the Custodian is legally compelled to disclose Confidential
Information, the Custodian will disclose only so much of the Confidential
Information as, in the opinion of its legal counsel, whether in-house or
outside, is legally required. In any such event, the Custodian agrees
to use good faith efforts to ensure that all Confidential Information that is so
disclosed will be accorded confidential treatment.
(b) Records
and information which have become known to the public through no wrongful act of
the Custodian or any of its employees, agents or representatives, and
information which was already in the possession of the Custodian prior to
obtaining same from the Trust, an investment manager acting on behalf and in the
name of the Trust, or any of its respective affiliates shall not be subject to
the above paragraph.
11. Amendment and
Termination. This Agreement may be amended by the Trust and
the Custodian at any time, but only in writing by an instrument signed by all
parties. This Agreement shall terminate at such time and upon such
terms as are expressly agreed to in writing by and between the Trust and the
Custodian; provided the Trust has the express right to terminate the Agreement
sooner upon thirty (30) days advance written notification to the Custodian; and
provided further that prior to such termination the Trust shall give written
instructions to the Custodian for delivery to the Trust or another the Custodian
acting on its behalf of any Assets which, at that time, continue to be held in
the custody of the Custodian hereunder.
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12. Attachment. In
case any portion of the Account, the Assets or the Financing Documents shall be
attached or levied upon pursuant to an order of court, or the delivery or
disbursement thereof shall be stayed or enjoined by an order of court, or any
other order, judgment or decree shall be made or entered by any court affecting
such Account or any act of the Custodian relating thereto, the Custodian shall
notify the Trust and use reasonable efforts to follow any instructions given by
the Trust in good faith, but in the absence of such instructions is expressly
authorized in its sole discretion to obey and comply with all orders, judgments
or decrees so entered or issued, without the necessity of inquiry whether such
court had jurisdiction, and, in case the Custodian obeys or complies with any
such order, judgment or decree, it shall not be liable to anyone by reason of
such compliance.
13. Resignation. The
Custodian may resign at any time by giving sixty (60) days’ written notice to
the Trust; the Trust shall give instructions to the Custodian within forty (40)
days of receiving such notice specifying where and to whom payment or transfer
of the Account and Financing Documents shall be made. In the absence
of the designation of a successor service provider by the Trust, the Trust shall
be deemed to be its own service provider as of the termination date and the
Custodian will make payment directly to the Trust per standing instructions as
defined. In either case, if requested to do so, the Custodian shall
use reasonable efforts in good faith to provide continuation services on a
monthly basis for up to ninety (90) days after the termination date, subject to
the continued payment of all fees and expenses as would be due hereunder during
such period.
14. Force
Majeure. The Custodian shall maintain adequate and reliable
facilities and computer and other equipment necessary or appropriate to carry
out its obligations under this Agreement. Upon the Trust’s reasonable request,
the Custodian shall provide information concerning the aspects of its disaster
recovery and business continuity plan that are relevant to the services provided
hereunder. The Custodian assumes no responsibility hereunder, and
shall not be liable for any damage, loss of data or documents, errors, delay or
any other loss whatsoever caused by events beyond its reasonable
control. The Custodian will, however, follow the procedures in its
disaster recovery and business continuity plan when the same are applicable and
take all reasonable steps to minimize service the Custodian shall not be
responsible for delays or failures in performance resulting from acts beyond its
control. Such acts shall include but shall not be limited to acts of
god, strikes, lockouts, riots, acts of war, epidemics, governmental regulations
superimposed after the fact, fire, communication line failures, power failures,
earthquakes or other disasters.
15. Parties in Interest; No
Third Party Benefit. This Agreement shall be binding upon and
inure to the benefit of the respective successors and assigns of the parties
hereto. This Agreement is not intended for, and shall not be
construed to be intended for, the benefit of any third parties and may not be
relied upon or enforced by any third parties.
16. Notices,
etc. All notices, applications and other communications
hereunder shall be in writing and shall be deemed to have been given or made
when delivered by recognized overnight delivery service or sent by confirmed
telecopy:
(i) if to the
Trust at c/o Rochdale Investment Management, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx,
XX 00000, Attention: Xxxx Xxxxxxxxxxx, fax no. (___) ___-____;
or
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(ii) if to the Custodian at U.S. Bank National Association,
Corporate Trust Department, Xxx Xxxxxxx
Xxxxxx, 0xx xxxxx, Xxxxxx,
XX 00000, Attention:
Xxx Xxxxxx, fax no. (000) 000-0000.
17. Records and Examination of
Financing Documents. Upon reasonable prior written notice to
the Custodian, the Trust, its custodians, accountants, attorneys and auditors
will be permitted to examine the Financing Documents then in the physical
possession of the Custodian and any records pertaining thereto during normal
business hours and upon reasonable advance notice. The Custodian shall keep
customary records relating to the services to be performed hereunder, in the
form and manner, and for such period consistent with industry standards as it
may deem advisable and as acceptable to the Trust but not inconsistent with the
rules and regulations of appropriate government authorities. Any records
maintained by the Custodian which have not been previously delivered to the
Trust shall be made available upon request, and shall be delivered to the Trust
promptly upon request and in any event upon the date of termination of this
Agreement, in the form and manner kept by the Custodian on such date of
termination or such earlier date as may be requested by the
Trust. Notwithstanding anything contained herein to the contrary, the
Custodian shall be permitted to maintain a copy of any such records, papers and
documents to the extent necessary for it to comply with the recordkeeping
requirements of applicable laws and regulations, subject to section
10.
18. Headings. The
headings set forth in this Agreement appear for convenience only and shall not
affect the interpretation of this Agreement.
19. Governing Law; Sealed
Instrument. This Agreement shall be construed and enforced in
accordance with, and rights of the parties shall be governed by, the internal
laws of the Commonwealth of Massachusetts. This Agreement shall take
effect as a sealed instrument.
20. Severability;
Assignment. If any term hereof is determined to be invalid or
unenforceable, such determination shall not affect the remaining
terms. The rights and obligations of the parties to this Agreement
are non-assignable, without the express written consent of each
party.
21. Counterparts. This
Agreement may be executed simultaneously in two or more counterparts, each of
which shall be deemed an original, and it shall not be necessary in making proof
of this Agreement to produce or account for more than one such
counterpart.
[SIGNATURE
PAGE FOLLOWS]
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IN
WITNESS WHEREOF, each of the parties has caused this Agreement to be executed
and delivered by its duly authorized officer, effective as of the date first
written above.
U.S.
BANK NATIONAL ASSOCIATION
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By:
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By:
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Name:
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Name:
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Title:
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Title:
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SCHEDULE
A
Authority
Persons
Name
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Title
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Signature
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SCHEDULE
B
Custodian
Compensation
Bank Loan Pricing Service:
Fee
for redistribution of Bank Loan pricing information from MarkIt Loans
Wholesale Redistribution Service as the provider.
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Loan
Facilities Priced
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Daily
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1-25
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$9,000
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26-50
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$16,200
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51-75
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$22,500
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76-100
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$28,350
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101-125
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$33,300
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126-150
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$37,800
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|
151-175
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$41,400
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176-200
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$44,550
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201-225
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$47,475
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226-250
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$51,300
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NOTE:
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In
the event the transaction fails to close for reasons beyond the control of
US Bank, we expect payment of legal fees, acceptance and out-of-pocket
expenses incurred to date.
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Extraordinary
services are duties or responsibilities of an unusual nature, including
termination, but not provided for in the governing documents or otherwise
set forth in this schedule. A reasonable charge will be
assessed based on the nature of the service and the responsibility
involved. At our option, these charges will be billed at a flat
fee or at our hourly rate then in effect. In the event that
this transaction does not close, any related out-of-pocket expenses will
be billed at cost.
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To
help the government fight the funding of terrorism and money laundering
activities, Federal law requires all financial institutions to obtain,
verify, and record information that identifies each person who opens an
Account. For a non-individual person such as a business entity,
a charity, a Trust, or other legal entity, we ask for documentation to
verify its formation and existence as a legal entity. We may
also ask to see financial statements, licenses, identification and
authorization documents from individuals claiming authority to represent
the entity or other relevant
documentation.
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SCHEDULE
C
Shareholder
Communications Act Authorization
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The
Shareholder Communications Act of 1985 requires banks and trust companies to
make an effort to permit direct communication between a company which issues
securities and the shareholder who votes those securities.
Unless
you specifically require us to NOT release your name and address to requesting
companies, we are required by law to disclose your name and
address.
Your
"yes" or "no" to disclosure will apply to all securities U.S. Bank holds for you
now and in the future, unless you change your mind and notify us in
writing.
_____ Yes
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U.S.
Bank is authorized to provide my name, address
and security position to requesting companies
whose stock is owned by me.
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_____
No
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U.S.
Bank is NOT authorized to provide my name, address and security position
to requesting companies whose stock is owned by
me.
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Signature:_________________________________________
Date:_____________________________________________